DOJ's Secret Interrogation Opinions

Following up on Big Tent Democrat's earlier post, the New York Times has a five page article revealing that in 2005, over the objections of his Deputy Attorney General James Comey, Attorney General Alberto Gonzales approved legal opinions written by Steven Bradbury concerning enhanced interrogation techniques.

The 2005 Justice Department opinions remain in effect, and their legal conclusions have been confirmed by several more recent memorandums, officials said. They show how the White House has succeeded in preserving the broadest possible legal latitude for harsh tactics.

Who is Bradbury? [More...]

The interrogation opinions were signed by Steven G. Bradbury, who since 2005 has headed the elite Office of Legal Counsel at the Justice Department. He has become a frequent public defender of the National Security Agency’s domestic surveillance program and detention policies at Congressional hearings and press briefings, a role that some legal scholars say is at odds with the office’s tradition of avoiding political advocacy.

After the Supreme Court's 2006 ruling that the Geneva Conventions apply to members of al Qaida, Bush led us to believe he was shutting down the CIA secret overseas prisons and transferring the detainees to Guantanamo.

But the Times reports that in July (I'm assuming the authors are referring to 2007) Bush issued a secret executive order, approved by Bradbury, reauthorizing the use of CIA "black sites" and harsh interrogation techniques that most of the world regards as torture.

The Bush administration had entered uncharted legal territory beginning in 2002, holding prisoners outside the scrutiny of the International Red Cross and subjecting them to harrowing pressure tactics. They included slaps to the head; hours held naked in a frigid cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; or the ultimate, waterboarding.

Never in history had the United States authorized such tactics.

So, what is this secret opinion? It appears to be one authorizing the use of a combination of interrogation techniques at the same time.

The Bush Administration takes the position that the CIA techniques are not torture. But, here's the kicker:

Officials had privately decided the agency did not have to comply with another provision in the Convention Against Torture — the prohibition on “cruel, inhuman, or degrading” treatment.

....In the end, Mr. Bradbury’s opinion delivered what the White House wanted: a statement that the standard imposed by Mr. McCain’s Detainee Treatment Act would not force any change in the C.I.A.’s practices, according to officials familiar with the memo.

The twisted logic:

Relying on a Supreme Court finding that only conduct that “shocks the conscience” was unconstitutional, the opinion found that in some circumstances not even waterboarding was necessarily cruel, inhuman or degrading, if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack, the officials familiar with the legal finding said.

At the end of this very long article, it's still unclear what Bradbury authorized. Or how many such opinions he wrote and when. The opinions are classified and while the article is filled with anecdotal quotes from former officials praising former DOJ officials like Comey and former Associate White House Counsel Jack Goldsmith, and criticizing David Addington and Alberto Gonzales, it's short on specifics.

Also, it doesn't seem like the article's authors have seen actual copies of Bradbury's opinions, instead relying on what people familiar with them have related.

Hopefully, there will be a follow-up.

Update: LNILR posted this last year from Newsweek on Bradbury. Seems he told a closed door Senate Intelligence Committee the President has the authority to order killings within the U.S.

Department official suggested that in certain circumstances, the president might have the power to order the killing of terrorist suspects inside the United States. Steven Bradbury, acting head of the department's Office of Legal Counsel, went to a closed-door Senate intelligence committee meeting last week to defend President George W. Bush's surveillance program. During the briefing, said administration and Capitol Hill officials (who declined to be identified because the session was private), California Democratic Sen. Dianne Feinstein asked Bradbury questions about the extent of presidential powers to fight Al Qaeda; could Bush, for instance, order the killing of a Qaeda suspect known to be on U.S. soil? Bradbury replied that he believed Bush could indeed do this, at least in certain circumstances.
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    Pogo was right (none / 0) (#1)
    by Maggie Mae on Thu Oct 04, 2007 at 12:03:21 AM EST
    We have met the enemy and he is us.  

    How are these people capable of looking at themselves in the mirror?

    That question's easy (none / 0) (#2)
    by chemoelectric on Thu Oct 04, 2007 at 01:32:32 AM EST
    They can't look at themselves in a mirror. Oh, they can look at a mirror, but they have no reflections.

    Outsourcing consequences and escalating madness (none / 0) (#3)
    by Ellie on Thu Oct 04, 2007 at 01:49:02 AM EST
    John D. Hutson, who served as the Navy's top lawyer from 1997 to 2000, said he believed that the existence of legal opinions justifying abusive treatment is pernicious, potentially blurring the rules for Americans handling prisoners. [...] Like other military lawyers, he also fears that official American acceptance of such treatment could endanger Americans in the future.

    "The problem is, once you've got a legal opinion that says such a technique is O.K., what happens when one of our people is captured and they do it to him? How do we protest then?" he asked. (Secret U.S. Endorsement of Severe Interrogations By SCOTT SHANE, DAVID JOHNSTON and JAMES RISEN, NYT, 10/04/2007)

    (The article also has a sidebar video: Implications for Mukasey's Confirmation)

    The damage this does to the already considerably diminished protections afforded by commonly understood standards of decent treatment for government workers and military personnel serving abroad is incalculable.

    I can't even begin to imagine how this multiplies the stress on their families, who might be out of contact with their loved ones for extended periods of time and once had only the knowledge to fall back on that humanitarian and human rights visits (eg, from the Red Cross) were guaranteed. Bush and Gonzales obliterated those.

    Here's what Bush was declaring publicly on July 20, 2007:

    Executive Order: Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency

         Fact sheet President Bush Signs Executive Order

    By the authority vested in me as President and Commander in Chief of the Armed Forces by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force (Public Law 107 40), the Military Commissions Act of 2006 (Public Law 109 366), and section 301 of title 3, United States Code, it is hereby ordered as follows:

    Section 1. General Determinations. (a) The United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces. Members of al Qaeda were responsible for the attacks on the United States of September 11, 2001, and for many other terrorist attacks, including against the United States, its personnel, and its allies throughout the world. These forces continue to fight the United States and its allies in Afghanistan, Iraq, and elsewhere, and they continue to plan additional acts of terror throughout the world. On February 7, 2002, I determined for the United States that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. I hereby reaffirm that determination.

    (b) The Military Commissions Act defines certain prohibitions of Common Article 3 for United States law, and it reaffirms and reinforces the authority of the President to interpret the meaning and application of the Geneva Conventions.

    Sec. 2. Definitions. As used in this order:

    (a) "Common Article 3" means Article 3 of the Geneva Conventions.

    (b) "Geneva Conventions" means:

    (i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3114);

    (ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);

    (iii) the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and

    (iv) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516).

    (c) "Cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.

    Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3. (a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.

    (b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:

    (i) the conditions of confinement and interrogation practices of the program do not include:

    (A) torture, as defined in section 2340 of title 18, United States Code;

    (B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;

    (C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;

    (D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 148 and section 1403 of Public Law 109 163);

    (E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or

    (F) acts intended to denigrate the religion, religious practices, or religious objects of the individual;

    (ii) the conditions of confinement and interrogation practices are to be used with an alien detainee who is determined by the Director of the Central Intelligence Agency:

    (A) to be a member or part of or supporting al Qaeda, the Taliban, or associated organizations; and

    (B) likely to be in possession of information that:

    (1) could assist in detecting, mitigating, or preventing terrorist attacks, such as attacks within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror with the United States, or their armed forces or other personnel, citizens, or facilities; or

    (2) could assist in locating the senior leadership of al Qaeda, the Taliban, or associated forces;

    (iii) the interrogation practices are determined by the Director of the Central Intelligence Agency, based upon professional advice, to be safe for use with each detainee with whom they are used; and

    (iv) detainees in the program receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.

    (c) The Director of the Central Intelligence Agency shall issue written policies to govern the program, including guidelines for Central Intelligence Agency personnel that implement paragraphs (i)(C), (E), and (F) of subsection 3(b) of this order, and including requirements to ensure:

    (i) safe and professional operation of the program;

    (ii) the development of an approved plan of interrogation tailored for each detainee in the program to be interrogated, consistent with subsection 3(b)(iv) of this order;

    (iii) appropriate training for interrogators and all personnel operating the program;

    (iv) effective monitoring of the program, including with respect to medical matters, to ensure the safety of those in the program; and

    (v) compliance with applicable law and this order.

    Sec. 4. Assignment of Function. With respect to the program addressed in this order, the function of the President under section 6(c)(3) of the Military Commissions Act of 2006 is assigned to the Director of National Intelligence.

    Sec. 5. General Provisions. (a) Subject to subsection (b) of this section, this order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

    (b) Nothing in this order shall be construed to prevent or limit reliance upon this order in a civil, criminal, or administrative proceeding, or otherwise, by the Central Intelligence Agency or by any individual acting on behalf of the Central Intelligence Agency in connection with the program addressed in this order.



    July 20, 2007.

    I am sickened........ (none / 0) (#4)
    by avahome on Thu Oct 04, 2007 at 08:32:11 AM EST
    I force myself to read things like this....we need to know.  No wonder the boys try to keep things hidden from sight.

    Will Mukasey be different?  I think so... I discovered something about him yesterday..

    don't ya know? (none / 0) (#5)
    by txpublicdefender on Thu Oct 04, 2007 at 12:40:27 PM EST
    We don't torture.  Bush said so.