Global Policy Forum

By Dan Eggen and Michael Abramowitz

Democratic lawmakers assailed the Justice Department yesterday for issuing secret memos that authorized harsh CIA interrogation techniques, demanding that the Bush administration turn over the documents. But officials refused and said the tactics did not violate anti-torture laws. One opinion issued by the Justice Department's Office of Legal Counsel in May 2005 authorized a combination of painful physical and psychological interrogation tactics, including head slapping, frigid temperatures and simulated drowning, according to current and former officials familiar with the issue.

A second document issued by the same Justice Department office in the summer of 2005 asserted that the interrogation practices approved for the CIA did not violate pending legislation to prohibit "cruel, inhuman and degrading" treatment, current and former officials said. The existence of the two classified memos was reported yesterday by the New York Times. White House and Justice officials said the legal opinion on interrogation techniques did not conflict with administration promises not to torture suspects, including a memo released publicly in December 2004 that declared torture "abhorrent." They said the newly revealed memo focused on "specific applications" under the parameters of the earlier document. "It is a policy of the United States that we do not torture, and we do not," said White House spokeswoman Dana Perino.

The memos create an unwelcome complication for the Bush administration as it tries to win confirmation of former federal judge Michael B. Mukasey as the next attorney general. He would replace Alberto R. Gonzales, who resigned last month after months of conflict with Congress over his credibility and management abilities. Gonzales led the Justice Department at the time that the newly disclosed memos were written. Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, vowed to question Mukasey closely about his views on interrogation policies during confirmation hearings this month. "After telling us and the world that torture is abhorrent . . . it appears that under Attorney General Gonzales they reversed themselves and reinstated a secret regime by, in essence, reinterpreting the law in secret," Leahy said, referring to administration officials. The House Judiciary Committee demanded copies of the documents from the Justice Department and vowed to hold hearings on the issue. "Both the alleged content of these opinions and the fact that they have been kept secret from Congress are extremely troubling," Chairman John Conyers Jr. (D-Mich.) and Rep. Jerrold Nadler (D-N.Y.) said in a letter to acting Attorney General Peter D. Keisler.

President Bush and his aides regularly denounce torture and deny that it has been condoned as part of the aggressive antiterrorism campaign after the Sept. 11, 2001, attacks. But administration officials have repeatedly refused to specify which tactics are allowed, and both the military and the CIA have operated under varying standards and guidelines over the past six years. White House, Justice and CIA officials refused to discuss the specific tactics authorized in the 2005 Justice memos. Both documents were signed by the Office of Legal Counsel's acting chief, Steven G. Bradbury, who declined requests for comment. Justice spokesman Brian Roehrkasse said Bradbury "has worked diligently to ensure that the authority of the office is employed in a careful and prudent manner." The secret opinion followed an analysis by the office that was released publicly in December 2004, and that declared "torture is abhorrent both to American law and values and international norms" and endorsed a legal definition of torture as acts "intended to inflict severe physical or mental pain or suffering." That analysis explicitly rejected a previous Justice opinion that had declared that only causing pain equivalent to "organ failure, impairment of bodily function, or even death" constituted torture punishable by law.

Paul Gimigliano, a CIA spokesman, said the agency's interrogation program "has been implemented carefully and lawfully" and has "produced vital information" to disrupt terrorist operations. "The CIA itself has sought the legal clarity on which this program rests," he said. The CIA approached the Justice Department in mid-2004 seeking specific guidelines on interrogation methods in anticipation of legislation that sought to limit allowable techniques, according to a senior U.S. official. The official said that, at the time of the request, the CIA wanted to ensure that its detention of terrorism suspects in secret sites overseas was sustainable, legally and politically. But the official maintained that the opinions did not "lead to anything harsher being done" to the suspects in CIA custody. White House homeland security adviser Frances Fragos Townsend also dismissed objections to the CIA program yesterday, saying during an appearance on CNN that al-Qaeda members are trained to resist harsh interrogations. She said that "we start with the least harsh measures first" and stop the progression "if someone becomes cooperative." "If Americans are killed because we failed to do the hard things, the American people would have the absolute right to ask us why," Townsend said.

Several current and former administration officials familiar with the detainee debate also said they believe that, to some extent, the 2005 Justice memos have been overtaken by events. After the Supreme Court ruled in 2006 that U.S. prisoners are covered by Geneva Conventions prohibitions against degrading treatment, Bush publicly confirmed the existence of the secret CIA prisons and announced the transfer of 14 CIA prisoners to military custody at Guantanamo Bay, Cuba. That same year, Congress approved changes in the interrogation and prosecution of terrorism suspects. Bush followed up several months ago with an executive order, required by the legislation, making it clear that the CIA would comply with Geneva Conventions prohibitions. The administration did not spell out exactly what techniques are now approved or prohibited, but officials suggested that the CIA's program had been changed. Officials also said that Justice lawyers conducted a legal review of the executive order, as demanded by Congress. "We have significantly changed what we are actually doing, and we have also changed the surrounding process," said Philip D. Zelikow, a former State Department counselor who was involved in some of the debates over interrogation policy.

Sen. John McCain (Ariz.), a Republican presidential hopeful, said he had been assured by administration officials that the technique known as waterboarding, which simulates drowning, is no longer being used. "I have been emphatic that techniques like waterboarding are inconsistent with America's international obligations and incompatible with our deepest values," McCain said in a statement. Sen. Christopher J. Dodd (Conn.), a Democratic presidential candidate, advocated cutting off funding for Bradbury's office if the Justice Department does not release the memos. Civil liberties and human rights advocates argue that the Bush administration's secretive and shifting definitions of torture have created an uncertain legal climate that encourages prisoner mistreatment, like the abuse that occurred at the Abu Ghraib prison in Iraq. "Instead of abiding by the law, the administration stocks the Justice Department with lawyers who will say that black is white and wrong is right and waterboarding is not torture," said Elisa Massimino, Washington director of Human Rights First.

Staff writers Dafna Linzer and Joby Warrick and staff researcher Julie Tate contributed to this report.