ACLU: Memos authorized CIA torture
Nick Juliano
Published: Thursday July 24, 2008

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As long as CIA agents could convince themselves they were not deliberately inflicting severe pain or suffering on detainees, they were free to do virtually anything in their questioning of suspected terrorists, including waterboarding. Furthermore, the agents' belief they weren't in fact torturing their captives didn't even need to be "reasonable."

These are the implications of a controversial August 2002 memo from the Justice Department to the CIA that was released Thursday. The American Civil Liberties Union obtained several internal Bush administration documents it says authorizes the CIA to torture detainees.

“These documents supply further evidence, if any were needed, that the Justice Department authorized the CIA to torture prisoners in its custody,” Jameel Jaffer, Director of the ACLU National Security Project, said in a news release. “The Justice Department twisted the law, and in some cases ignored it altogether, in order to permit interrogators to use barbaric methods that the U.S. once prosecuted as war crimes.”

The documents were heavily redacted. For example, the government blacked out 10 full pages of the 18-page August 2002 memo, written by then-Assistant Attorney General Jay Bybee, before releasing it in response to a Freedom of Information Act request. Most of the text on the remaining pages was similarly blacked out, but the released version of the Bybee memo does provide some insight.

Bybee outlined the definition of torture in Section 2340A of the United States code, focusing in part on its caveat that an act be "specifically intended to inflict severe physical or mental pain or suffering." Elaborating on his definition of the "specific intent" provision, Bybee narrows the definition to the point where it become functionally meaningless.

All that is required to avoid prosecution is a CIA agent's "good faith belief" that his actions will not cause torturous pain and suffering. Such a belief "need not be reasonable," Bybee writes.

Although any references to waterboarding have been scrubbed from the released Bybee memo, the government handed over to the ACLU a 2004 memo from the CIA that referrs to the "classified August 2002 DoJ opinion stating that [redacted] interrogation techniques including the waterboard, do not violate the Torture Statute."

The same memo raises the prospect of "future US judicial review of the Program," referencing the Supreme Court's decision that year in Rasul v. Bush.

A 2003 memo from the CIA to the Justice Department clarifying that "Enhanced Techniques" fall under those permissible by CIA headquarters, although it seems also to raise the possibility that even more coercive techniques could be "approved by Headquarters." Virtually all of the four-page memo is redacted, but the memo does make clear that in interrogations using Enhanced Techniques, "a contemporaneous record shall be created setting forth the nature and duration of each technique employed."

The CIA last year destroyed at least two videotapes of enhanced interrogations that may have included waterboarding. The Justice Department has started a criminal investigation into the tapes' destruction.

The ACLU first requested the documents it released Thursday in a FOIA lawsuit filed in 2004. While the documents provide some more evidence of torture during George W. Bush's presidency, the ACLU says his administration continues to do all it can to avoid full scrutiny.

“While the documents released today do provide more information about the development and implementation of the Bush administration's torture policies, even a cursory glance at the documents shows that the administration continues to use 'national security' as a shield to protect government officials from embarrassment, criticism and possible criminal prosecution,” Jaffer said. “Far too much information is still being withheld.”