DOJ Sits on Secret CIA Interrogation Memo

By
Tuesday, April 21, 2009 at 12:02 am
President George W. Bush (WDCpix)

President George W. Bush (WDCpix)

The release last week of Bush-era legal memoranda justifying the Central Intelligence Agency’s use of extreme interrogation methods has opened a window on what former Vice President Dick Cheney famously called “the dark side” of the war on terrorism. But despite President Obama’s declaration that releasing the four Justice Department memos disclosed Friday would end “a dark and painful chapter in our history,” at least one other memorandum on CIA interrogations remains undisclosed: a 2007 opinion from the Justice Department’s Office of Legal Counsel on what a new interpretation of the Geneva Conventions’ Common Article 3 meant for the agency’s “enhanced interrogation program.”

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

A former senior intelligence official, who would not speak for the record, said that in 2007, the head of the Justice Department’s Office of Legal Counsel, Steven Bradbury, issued a still-secret memorandum authorizing an updated CIA interrogation regimen. The Justice Department issued the document after months of internal Bush administration debate, a Supreme Court decision in 2006 that extended protections from Common Article 3 of the Geneva Conventions to enemy combatants in U.S. custody, a piece of new legislation responding to the Court’s decision and a presidential executive order on interrogations.

“The CIA still seems to want to get authority to interrogate people outside of what would be found to be a violation of the Geneva Conventions and the law,” said Michael Ratner, president of the Center for Constitutional Rights, who cautioned that he had not previously known about the 2007 memorandum.

The still-unreleased Office of Legal Counsel memo spelled out for the CIA what interrogation practices were considered lawful after President Bush issued an executive order on July 20, 2007 that sought to reconcile the CIA’s interrogation program with the Geneva Conventions’ Common Article 3, which prohibits inflicting “outrages upon personal dignity, in particular humiliating and degrading treatment” upon wartime detainees.” The Supreme Court, in 2006′s Hamdan v. Rumsfeld decision, ruled that Common Article 3 protections applied to enemy combatants in U.S. custody, a determination that the Bush administration had resisted since creating its post-9/11 detention and interrogation policies. Congress in 2006 responded by passing the Military Commissions Act, which reserved for the president the right to define the applicability of Common Article 3 protections for detainees in the war on terrorism. Bush’s order, known as Executive Order 13440, determined that the the CIA’s interrogation program fit within Common Article 3, provided that it met certain criteria, such as the exclusion of practices like “murder, torture, cruel or inhuman treatment, mutilation or maiming.”

But the order did not define which interrogation techniques it now considered legal. Anonymous Bush administration officials told reporters on the day of the order’s release, “it would be very wrong to assume that the program of the past would move into the future unchanged.” As a result, according to the former senior intelligence official, after Bush issued the order, the CIA again asked the Justice Department’s Office of Legal Counsel to review the techniques listed in the revised interrogation program in order to determine their legality, just as the Office of Legal Counsel had done in 2002 and 2005, after previous periods of challenge to the post-9/11 interrogation program.

“The agency repeatedly sought and repeatedly received written assurances from the Department of Justice that its interrogation practices were lawful,” said CIA spokesman Paul Gimigliano. “As others have noted, the detention and interrogation program changed over the years as changes arose in the legal landscape. That included the interpretation of Common Article 3. CIA was proactive in requesting guidance and it was proactive in making changes.”

Hannah August, a spokeswoman for the Department of Justice, said the department had no comment on the 2007 memo.

The Washington Independent has filed a Freedom of Information Act request for the 2007 Office of Legal Counsel document and is awaiting word from the Justice Department about the status of the request. FOIA requests can take years to fulfill. In January, President Obama issued an executive order instructing federal agencies to comply expeditiously with such requests. He also withdrew Executive Order 13440 that same month — while he ordered a year-long review of interrogation and detention practices and restricted all interrogations to occur in compliance with the Geneva Conventions-compliant Army field manual.

The former senior intelligence official would not describe what the 2007-era interrogation regimen contained, nor would the ex-official characterize the Office of Legal Counsel’s advice. In the past, according to the newly disclosed memos written in 2002 and 2005, the Office of Legal Counsel relied on claims that the president has inherent constitutional authority in a time of war to order enhanced interrogations; that techniques like waterboarding, sleep deprivation and 18-hour placement in a “confinement box” were not torture; and that use of such techniques in combination with each other still fell short of statutory prohibitions on “cruel, inhuman or degrading treatment.”

A statement from Sen. Jay Rockefeller (D-W.Va.), then the chairman of the Senate Select Committee on Intelligence, on the day of Executive Order 13440′s release demanded that “the Department of Justice provide the Committee with its full legal analysis” of the order. Rockefeller appears to be the only public official to issue a statement indicating the Justice Department conducted such an analysis.

Several aspects of Bush’s 2007 order were not defined precisely in the text. Executive Order 13440 prohibited “willful and outrageous acts of personal abuse” only if they were conducted “for the purpose of humiliating or degrading” a detainee, but was agnostic about whether humiliation or degradation occurring as a side effect of such acts was permissible. It similarly prohibited “acts intended to denigrate the religion, religious practices, or religious objects of the individual” but did not specify what these acts were, nor whether it was permissible to engage in an interrogation technique whereby religious denigration occurred but was not a specific goal of the technique.

In a speech to the Council on Foreign Relations in September 2007, then-CIA Director Michael Hayden defended the CIA’s re-authorized interrogation program as legal. “I don‘t know of anyone who has looked at the Army Field Manual who could make the claim that what’s contained in there exhausts the universe of lawful interrogation techniques consistent with the Geneva Convention,” Hayden said.

Ratner of the Center for Constitutional Rights said the 2007 Office of Legal Counsel memo raised questions about why the CIA felt it needed expanded authorities for interrogation by 2007. “What we don’t know is whether, after Hamdan, that 2007 memo modifies what the CIA is able to do in interrogation techniques,” he said. “But what’s more interesting is why the CIA thinks it needs to use those interrogation techniques,” he said, noting that the Bush administration released 14 detainees from its network of secret detention facilities months before the 2007 memo was issued.

“Who are they interrogating in 2007?” Ratner said. “Who are they torturing in 2007? Is that they’re nervous about going beyond what OLC has said? These are secret-site people. Who are they? What happened to them?”

It is unclear if the Senate Select Committee on Intelligence, which opened an investigation last month into the CIA’s post-9/11 detention and interrogation programs, has seen the memorandum. A Hill source familiar with the investigation and not cleared to speak with the press did not specify what documents the committee has viewed, but said, “What we haven’t seen to date, we’re likely to see in our study.” That committee is expected to complete its review in the “next six to eight months,” chair Sen. Dianne Feinstein (D-Calif.) said in a letter to President Obama on Monday.

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Comments

17 Comments

nellieh
Comment posted April 21, 2009 @ 8:43 am

The CIA interrogators knew they were breaking the law. What happened to the report they were purchasing 'legal insurance' to help protect them if they were found out. If they weren't breaking the law because of the memos, why get legal insurance. It wasn't for a traffic accident, it was to argue for them in court if they were indicted for torturing people in violation of our laws and the Geneva convention Treaty. I just read a comment on one blog where, had Saddam Hussein requested an interpretation of their laws it would have been OK to gas his own people. The only difference is degrees. Torture is torture. People died because they were being tortured. They came c;lose to extinguishing the flame on the Statue of Liberty.


Wonk Room » The WonkLine: April 21, 2009
Pingback posted April 21, 2009 @ 10:00 am

[...] Ackerman reports at least one other memorandum on CIA interrogations remains undisclosed: a 2007 opinion from the Justice Department’s Office of Legal Counsel on what a new [...]


William Ockham
Comment posted April 21, 2009 @ 10:52 am

Spence,

There's another unreleased memo about the CIA detention and torture regime that pre-dates the one in 2007 and also was probably written in response to Hamden v. Rumsfeld. In the Vaughn Index that was published for the FOIA suit by the ACLU, CCR and others, there's a reference to a DOJ OLC legal opinion dated 8/31/2006. Go over to the website of your source, Michael Rattner. http://ccrjustice.org/GhostFOIA

Scroll down to the section called •CIA Motion for Summary Judgment

Open the document named 2008-4-21 Declaration of Ralph Dimaio – Exh A2 – CIA docs released.pdf

Find Doc 70 (pg. 33 of the PDF)

It says (in part):

This document is a 14-page legal opinion from DOJ OLC to the CIA Office of General Counsel. The legal opinion provides legal analysis and advice based on a set of facts provided by the CIA. The document is dated August 31, 2006 and bears the classification TOP SECRET//SCI.


Spencer Ackerman on torture news « Later On
Pingback posted April 21, 2009 @ 2:56 pm

[...] DOJ Sits on Secret CIA Interrogation Memo. This one was filed at 12:02 a.m. and begins: The release last week of Bush-era legal memoranda justifying the Central Intelligence Agency’s use of extreme interrogation methods has opened a window on what former Vice President Dick Cheney famously called “the dark side” of the war on terrorism. But despite President Obama’s declaration that releasing the four Justice Department memos disclosed Friday would end “a dark and painful chapter in our history,” at least one other memorandum on CIA interrogations remains undisclosed: a 2007 opinion from the Justice Department’s Office of Legal Counsel on what a new interpretation of the Geneva Conventions’ Common Article 3 meant for the agency’s “enhanced interrogation program.” [...]


Dennis
Comment posted April 21, 2009 @ 2:53 pm

It is no longer a matter of just the methods of torture, who approved the torture and who carried it out. The rest of the matter is does Congress have the stomach and the ethics for an honest investigation and prosecution of those involved.

I have grave doubts.


Norcal Mom
Comment posted April 21, 2009 @ 4:37 pm

Our president is worried about our reputation while extremists still cut off peoples heads….hummmm I wonder what, in a time of war….how sad the new DC management had to go there and put the rest of this country in danger just to get a few brownie points.


Neil
Comment posted April 22, 2009 @ 7:08 am

Putting aside the Bush administration's secretive and effective machinations to subvert the rule of law, Congress and the courts by gaming the OLC/DOJ to justify torture even when domestic law and international treaties clearly prohibit it,…. How can Cheney claim torture was effective when they tortured one detainee 183 times in a month – that's six times a day. It sounds completely ineffective to me. If it can be proven that the torture program in Gitmo, CIA black sites, Abu Grhaib and Bagram all flowed from Bush's and Cheney's authorizations based on specious OLC opinions then Bush,Cheney and OLC layers should stand trial for war crimes. We don't torture, remember? Torture is a war crime.


ack
Comment posted April 23, 2009 @ 8:33 am

Our past practices of treating people humanely are what have produced our reputation.

If you want to live where your reputation is that of torturing and killing prisoners, go live somewhere else.

America does not need any more idiot torture apologists.


Everything on Obama, the torture memo’s and prosecution « The Lift - Legal Issues in the Fight against Terrorism
Pingback posted April 25, 2009 @ 12:21 pm

[...] 2007 opinion from the Justice Department’s Office of Legal Counsel on what a new interpretation of the Geneva [...]


Hawaiian style
Comment posted April 30, 2009 @ 11:16 am

Justice department??? Just as the “Defense” Department should be again named the “War” Department, the “Justice” Department should be named the “Discretionary Justice” Department.

We know the government is spying on us in violation of the Constitution.
We know the government has tortured in violation of International and US law.
We know that the war profiteers have stolen millions of dollars from us.
We know that the Stimulus package is fraught with bad examples of people taking money.

So Mr. Attorney General Holder how do you uphold the rule of law???

I think I will go google your oath of office just to see what you swore to do…


Hawaiian style
Comment posted May 4, 2009 @ 10:36 am

Its torture only if the aim is to humiliate or degrade the person??? What crap. Since when did anyone torture to humiliate someone; to degrade someone? The torturer is the one that is degraded and humiliated.

How did we arrive at the place where more and more of out governments policies must be kept secret from our citizens. In a Democracy the citizens are not supposed to be the bad guys. They are supposed to be the prime movers, the controllers, even the watch dogs. More and more it feels like we are the tax payers without a voice. We are the necessary evil. We are the ones to be kept out of the plans, projects and even intimidated to not voicing our criticism of our government.

How did we arrive at the place where our Executive and Congress find it even acceptable to pass Bills that have misleading names. Names that will make us believe that they are good law, e.g., The Patriot Act.

One answer is that we are on the one hand too inquisitive and on the other too lazy to pay attention.
We have made the politician so afraid of being unelected that they put politics before everything including Country and Constitution.

The other answer seems to be the news comes so fast that we lose sight of serious problems before they are resolved.

Another answer might be that Congress signs into law bills that they have not read, and they have abandoned their oversight function in favor of politics and political obstructionism.

If we have met the enemy and he is us as Pogo said, who will fight the enemy? The army wants to station troops in the US! The Executive Branch wants to spy on us, and has assumed the “war” power that they can arrest and hold a US citizen without rights upon the say so of the “king”.

The Congress wants to be reelected before any thing else. And, both think they can ignore the Constitution and Bill of Rights by either fiat or passing a law.

How have we arrived at the idea where a group of politicians in Congress feel they can arbitrarily as a group just say no to anything the President proposes. How have we lead them to believe we will not only tolerate this unthinking reaction, but even support it?

Are there any voices in the US today that have the power and integrity to say enough? I don't know of any do you?


Hawaiian style
Comment posted May 4, 2009 @ 5:36 pm

Its torture only if the aim is to humiliate or degrade the person??? What crap. Since when did anyone torture to humiliate someone; to degrade someone? The torturer is the one that is degraded and humiliated.

How did we arrive at the place where more and more of out governments policies must be kept secret from our citizens. In a Democracy the citizens are not supposed to be the bad guys. They are supposed to be the prime movers, the controllers, even the watch dogs. More and more it feels like we are the tax payers without a voice. We are the necessary evil. We are the ones to be kept out of the plans, projects and even intimidated to not voicing our criticism of our government.

How did we arrive at the place where our Executive and Congress find it even acceptable to pass Bills that have misleading names. Names that will make us believe that they are good law, e.g., The Patriot Act.

One answer is that we are on the one hand too inquisitive and on the other too lazy to pay attention.
We have made the politician so afraid of being unelected that they put politics before everything including Country and Constitution.

The other answer seems to be the news comes so fast that we lose sight of serious problems before they are resolved.

Another answer might be that Congress signs into law bills that they have not read, and they have abandoned their oversight function in favor of politics and political obstructionism.

If we have met the enemy and he is us as Pogo said, who will fight the enemy? The army wants to station troops in the US! The Executive Branch wants to spy on us, and has assumed the “war” power that they can arrest and hold a US citizen without rights upon the say so of the “king”.

The Congress wants to be reelected before any thing else. And, both think they can ignore the Constitution and Bill of Rights by either fiat or passing a law.

How have we arrived at the idea where a group of politicians in Congress feel they can arbitrarily as a group just say no to anything the President proposes. How have we lead them to believe we will not only tolerate this unthinking reaction, but even support it?

Are there any voices in the US today that have the power and integrity to say enough? I don't know of any do you?


The Hill’s Blog Briefing Room » MORNING READ
Pingback posted June 19, 2009 @ 6:16 pm

[...] Jons’ – Chait and Cohn, The Plank Spending cuts in pictoral form – Brian Simpson, Minority Report DOJ sits on more CIA memos – S. Ackerman, TWI Right perspective on first 100 days? – M. Medved, Townhall Re-thinking [...]


Is DOJ Withholding the OPR Report Tomorrow to Frame a White-Wash Investigation? - Gossip Rocks Forum
Pingback posted August 23, 2009 @ 5:56 pm

[...] these are: 2007 Justice Department memo: The OLC memo Spencer was the first to report. From his Windy report:As a result, according to the former senior intelligence official, after Bush issued the order, the [...]


Emptywheel » Is DOJ Withholding the OPR Report Tomorrow to Frame a White-Wash Investigation?
Pingback posted October 10, 2009 @ 11:03 am

[...] Justice Department memo: The OLC memo Spencer was the first to report. From his Windy report: As a result, according to the former senior intelligence official, after Bush issued the order, [...]


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