Group items tagged

Obama left open the possibility of criminal prosecution Tuesday for former Bush administration officials who drew up the legal basis for aggressive interrogation techniques many view as torture. Obama said it will be up to Attorney General Eric Holder to decide whether or not to prosecute the former officials. "With respect to those who formulated those legal decisions, I would say that is going to be more a decision for the attorney general within the parameter of various laws, and I don't want to prejudge that," Obama said during a meeting with Jordan's King Abdullah II at the White House.

A Gallup poll in early February showed that 38 percent of respondents favored a Justice Department criminal investigation of torture claims, 24 percent favored a noncriminal investigation by an independent panel, and 34 percent opposed either. A Washington Post poll about a week earlier showed a narrow percentage of Americans in favor of investigations.

The author of one of the memos that authorized those techniques, then-Assistant Attorney General Jay Bybee, is now a federal appeals court judge in California. U.S. Rep. Jerry Nadler, D-New York, a senior member of the House Judiciary Committee, has called for Bybee's impeachment, while Sen. Patrick Leahy, D-Vermont, chair of the Senate Judiciary committee, called for his resignation. "If the White House and Mr. Bybee told the truth at the time of his nomination, he never would have been confirmed," Leahy said. "So actually, the honorable and decent thing for him to do now would be to resign. If he's an honorable and decent man, he will."

Obama reiterated his belief that he did not think it is appropriate to prosecute those CIA officials and others who carried out the interrogations in question. "This has been a difficult chapter in our history and one of [my] tougher decisions," he added. The techniques listed in memos "reflected ... us losing our moral bearings."

The president's apparent willingness to leave the door open to a prosecution of Bush officials seemed to contradict White House Chief of Staff Rahm Emanuel, who indicated Sunday that the administration was opposed to such an action. Obama believes "that's not the place that we [should] go," Emanuel said on ABC's "This Week."

Sometime during those early weeks, Mohammed started talking, providing information that supporters of harsh interrogations would later cite in defending the practices. Former vice president Richard B. Cheney has justified such interrogations by saying that intelligence gained from Mohammed resulted in the takedown of al-Qaeda plots.

Two former high-ranking officials with access to secret information said the interrogations yielded details of al-Qaeda's operations that resulted in the identification of previously unknown suspects, preventing future attacks. "The detainee-supplied data permitted us to round them up as they were being trained, rather than just before they came ashore," said one former intelligence official who spoke on the condition of anonymity because the cases are classified. "Not headline stuff, but the bread and butter of successful counterterrorism. And something that few people understand."

Other officials, including former high-ranking members of the Bush administration, argue that judging the program by whether it yielded information misses the point. "The systematic, calculated infliction of this scale of prolonged torment is immoral, debasing the perpetrators and the captives," said Philip D. Zelikow, a political counselor to then-Secretary of State Condoleezza Rice who reviewed secret Bush administration reports about the program in 2005. "Second, forfeiting our high ground, the practices also alienate needed allies in the common fight, even allies within our own government. Third, the gains are dubious when the alternatives are searchingly compared. And then, after all, there is still the law."

The Obama administration's top intelligence officer, Dennis C. Blair, has said the information obtained through the interrogation program was of "high value." But he also concluded that those gains weren't worth the cost. "There is no way of knowing whether the same information could have been obtained through other means," Blair said in a statement. "The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

The allegations date back to November 2001, when as many as 2,000 Taliban prisoners died in transit after surrendering during one of the regime's last stands, according to a State Department report from 2002.

Witnesses have claimed that forces with the U.S.-allied Northern Alliance placed the prisoners in sealed cargo containers over the two-day voyage to Sheberghan Prison, suffocating them and then burying them en masse using bulldozers to move the bodies, according to the State Department report. Some Northern Alliance soldiers have said that some of their troops opened fire on the containers, killing those within.

A former U.S. ambassador for war crimes issues, Pierre Prosper, told the Times that the Bush administration was reluctant to investigate the deaths, even though Dostum was on the payroll of the CIA and his soldiers worked with U.S. special forces in 2001.

Dostum was suspended from his military post last year on suspicion of threatening a political rival, but Afghan President Hamid Karzai recently rehired him, the Times reported.

Bybee, now a federal appeals court judge, and Yoo, now a law professor in California

The legal analysis on interrogation prepared by a third former chief of the Office of Legal Counsel, Steven G. Bradbury, also was a subject of the ethics probe. But in an early draft, investigators did not make disciplinary recommendations about Bradbury.

Among other things, the draft report cited passages from a 2004 CIA inspector general's investigation and cast doubt on the effectiveness of the questioning techniques, which sources characterized as far afield from the narrow legal questions surrounding the lawyers' activities.

Mr Obama said he had had no choice but to release the Bush administration's legal justification for interrogation techniques, which he considers to be torture - and has banned. "Don't be discouraged that we have to acknowledge that potentially we've made some mistakes.

Some senior Obama administration officials, including Attorney General Eric H. Holder Jr., have labeled one of the 14 approved techniques, waterboarding, illegal torture.

The United States prosecuted some Japanese interrogators at war crimes trials after World War II for waterboarding and other methods detailed in the memos.

Together, the four memos give an extraordinarily detailed account of the C.I.A.’s methods and the Justice Department’s long struggle, in the face of graphic descriptions of brutal tactics, to square them with international and domestic law. Passages describing forced nudity, the slamming of detainees into walls, prolonged sleep deprivation and the dousing of detainees with water as cold as 41 degrees alternate with elaborate legal arguments concerning the international Convention Against Torture.

The documents were released with minimal redactions, indicating that President Obama sided against current and former C.I.A. officials who for weeks had pressed the White House to withhold details about specific interrogation techniques.

Leon E. Panetta, the C.I.A. director, had argued that revealing such information set a dangerous precedent for future disclosures of intelligence sources and methods.

A more pressing concern for the C.I.A. is that the revelations may give new momentum to proposals for a full-blown investigation into Bush administration counterterrorism programs and possible torture prosecutions.

Mr. Obama said that C.I.A. officers who were acting on the Justice Department’s legal advice would not be prosecuted, but he left open the possibility that anyone who acted without legal authorization could still face criminal penalties. He did not address whether lawyers who authorized the use of the interrogation techniques should face some kind of penalty.

Mr. Obama condemned what he called a “dark and painful chapter in our history” and said that the interrogation techniques would never be used again. But he also repeated his opposition to a lengthy inquiry into the program, saying that “nothing will be gained by spending our time and energy laying blame for the past.”

The four legal opinions, released in a Freedom of Information Act lawsuit filed by the A.C.L.U., were written in 2002 and 2005 by the Justice Department’s Office of Legal Counsel, the highest authority in interpreting the law in the executive branch.

The first of the memos, from August 2002, was signed by Jay S. Bybee, who oversaw the Office of Legal Counsel, and gave the C.I.A. its first detailed legal approval for waterboarding and other harsh treatment.

Three others, signed by Steven G. Bradbury, sought to reassure the agency in May 2005 that its methods were still legal, even when multiple methods were used in combination, and despite the prohibition in international law against “cruel, inhuman or degrading” treatment.

All legal opinions on interrogation were revoked by Mr. Obama on his second day in office, when he also outlawed harsh interrogations and ordered the C.I.A.’s secret prisons closed.

They recounted the C.I.A.’s assertions of the effectiveness of the techniques but noted that interrogators could not always tell a prisoner who was withholding information from one who had no more information to offer.

The memos include what in effect are lengthy excerpts from the agency’s interrogation manual, laying out with precision how each method was to be used. Waterboarding, for example, involved strapping a prisoner to a gurney inclined at an angle of “10 to 15 degrees” and pouring water over a cloth covering his nose and mouth “from a height of approximately 6 to 18 inches” for no more than 40 seconds at a time.

But a footnote to a 2005 memo made it clear that the rules were not always followed. Waterboarding was used “with far greater frequency than initially indicated” and with “large volumes of water” rather than the small quantities in the rules, one memo says, citing a 2004 report by the C.I.A.’s inspector general.

Most of the methods have been previously described in news accounts and in a 2006 report of the International Committee of the Red Cross, which interviewed 14 detainees. But one previously unknown tactic the C.I.A. proposed — but never used — against Abu Zubaydah, a terrorist operative, involved exploiting what was thought to be his fear of insects.

“As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar,” one memo says.

Dennis C. Blair, the director of national intelligence, cautioned that the memos were written at a time when C.I.A. officers were frantically working to prevent a repeat of the Sept. 11, 2001, attacks. “Those methods, read on a bright, sunny, safe day in April 2009, appear graphic and disturbing,” said Mr. Blair in a written statement. “But we will absolutely defend those who relied on these memos.”

The 2005 memo also says that the C.I.A. used waterboarding 183 times in March 2003 against Khalid Shaikh Mohammed, the self-described planner of the Sept. 11, 2001, terrorist attacks.

Mr. Obama said C.I.A. officers who had used waterboarding and other harsh interrogation methods with the approval of the Justice Department would not be prosecuted. He has repeatedly suggested that he opposes Congressional proposals for a “truth commission” to examine Bush administration counterterrorism programs, including interrogation and warrantless eavesdropping.

The Senate Intelligence Committee has begun a yearlong, closed-door investigation of the C.I.A. interrogation program, in part to assess claims of Bush administration officials that brutal treatment, including slamming prisoners into walls, shackling them in standing positions for days and confining them in small boxes, was necessary to get information.

The fact that waterboarding was repeated so many times may raise questions about its effectiveness, as well as about assertions by Bush administration officials that their methods were used under strict guidelines.

A footnote to another 2005 Justice Department memo released Thursday said waterboarding was used both more frequently and with a greater volume of water than the C.I.A. rules permitted.

Michael V. Hayden, director of the C.I.A. for the last two years of the Bush administration, would not comment when asked on the program “Fox News Sunday” if Mr. Mohammed had been waterboarded 183 times. He said he believed that that information was still classified.

Mr. Hayden said he had opposed the release of the memos, even though President Obama has said the techniques will never be used again, because they would tell Al Qaeda “the outer limits that any American would ever go in terms of interrogating an Al Qaeda terrorist.”

He also disputed an article in The New York Times on Saturday that said Abu Zubaydah had revealed nothing new after being waterboarded, saying that he believed that after unspecified “techniques” were used, Abu Zubaydah revealed information that led to the capture of another terrorist suspect, Ramzi Binalshibh.

Even for those who believed that brutal treatment could produce results, the official said, “seeing these depths of human misery and degradation has a traumatic effect.”

A footnote to another of the memos described a rift between line officers questioning Abu Zubaydah at a secret C.I.A. prison in Thailand and their bosses at headquarters, and asserted that the brutal treatment may have been “unnecessary.”

In March 2002, when Abu Zubaydah was captured in Pakistan after a gunfight with Pakistani security officers backed by F.B.I. and C.I.A. officers, Bush administration officials portrayed him as a Qaeda leader. That judgment was reflected in the Aug. 1, 2002, legal opinion signed by Jay S. Bybee, then head of the Justice Department’s Office of Legal Counsel.The memo summarizes the C.I.A.’s judgment that Abu Zubaydah, then 31, had risen rapidly to “third or fourth man in Al Qaeda” and had served as “senior lieutenant” to Osama bin Laden. It said he had “managed a network of training camps” and had been “involved in every major terrorist operation carried out by Al Qaeda.”

The memo reported the C.I.A.’s portrayal of “a highly self-directed individual who prizes his independence,” a deceptive narcissist, healthy and tough, who agency officers believed was the most senior terrorist caught since the attacks of Sept. 11, 2001.

His interrogation, according to multiple accounts, began in Pakistan and continued at the secret C.I.A. site in Thailand, with a traditional, rapport-building approach led by two F.B.I. agents, who even helped care for him as his gunshot wounds healed.

A C.I.A. interrogation team that arrived a week or two later, which included former military psychologists, did not change the approach to questioning, but began to keep him awake night and day with blasting rock music, have his clothes removed and keep his cell cold.

The legal basis for this treatment is uncertain, but lawyers at C.I.A. headquarters were in constant touch with interrogators, as well as with Mr. Bybee’s subordinate in the Office of Legal Counsel, John C. Yoo, who was drafting memos on the legal limits of interrogation.

Through the summer of 2002, Abu Zubaydah continued to provide valuable information. Interrogators began to surmise that he was not a leader, but rather a helpful training camp personnel clerk who would arrange false documents and travel for jihadists, including Qaeda members.

He knew enough to give interrogators “a road map of Al Qaeda operatives,” an agency officer said. He also repeated talk he had heard about possible plots or targets in the United States, though when F.B.I. agents followed up, most of it turned out to be idle discussion or preliminary brainstorming.At the time, former C.I.A. officials say, his tips were extremely useful, helping to track several other important terrorists, including Mr. Mohammed.

But senior agency officials, still persuaded, as they had told President George W. Bush and his staff, that he was an important Qaeda leader, insisted that he must know more.“You get a ton of information, but headquarters says, ‘There must be more,’ ” recalled one intelligence officer who was involved in the case. As described in the footnote to the memo, the use of repeated waterboarding against Abu Zubaydah was ordered “at the direction of C.I.A. headquarters,” and officials were dispatched from headquarters “to watch the last waterboard session.”

The memo, written in 2005 and signed by Steven G. Bradbury, who worked in the Office of Legal Counsel, concluded that the waterboarding was justified even if the prisoner turned out not to know as much as officials had thought.

And he did not, according to the former intelligence officer involved in the Abu Zubaydah case. “He pleaded for his life,” the official said. “But he gave up no new information. He had no more information to give.”

Since 2002, the C.I.A. has downgraded its assessment of Abu Zubaydah’s significance, while continuing to call his revelations important. In an interview, an intelligence officer said that the current view was that Abu Zubaydah was “an important terrorist facilitator” who disclosed “essential raw material for successful counterterrorist action.”

The former head of Italian military intelligence, Niccolò Pollari, once said that he would call Mr. Berlusconi as a witness. Mr. Pollari’s lawyers have said that higher-level officials made the decision to cooperate with American intelligence operatives.

According to lawyers for the prosecution, the court deemed inadmissible files that had been seized from the Rome apartment of an Italian intelligence operative, the Italian news media reported. The court also threw out some testimony from an Italian police officer who said he had participated in Mr. Nasr’s seizure at the request of Robert Seldon Lady, who was then the Central Intelligence Agency’s station chief in Milan. But the ruling appeared to admit evidence gathered from wiretaps of intelligence operatives, which the Italian government had filed motions to dismiss.

This is why Obama, a Democrat, is promising the people at the CIA that they will not be prosecuted, because when they tortured people, they did so strictly within the framework of the then-administration's interpretation of the law. This is a concept that is not entirely foreign to European legal thought. Under German criminal law, for instance, the actions committed by a person who could have assumed his behavior was permissible, are considered excusable, albeit not justified.

Nevertheless, the idea that "what was lawful then cannot be unlawful today" -- as the late Baden-Württemberg Governor Hans Filbinger, who had been a judge during the Third Reich, famously told SPIEGEL in a 1978 interview -- does not always apply.