Despite last week’s release of four Bush-era Office of Legal Counsel memos, at least one Department of Justice opinion is still undisclosed.
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.”
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 d‘t know of anye who has looked at the Army Field Manual who could make the claim that what’s ctained in there exhausts the universe of lawful interrogati techniques csistent with the Geneva Cventi,” 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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