This thread will be used to post key documents related to the prisoner abuse scandal, renditions and the Secret CIA prisons.

http://www.antiwar.com/news/?articleid=2776

June 9, 2004
Pentagon Memo Legitimizing Torture
March 6, 2003
The Wall Street Journal has released the text of the now-infamous March 6, 2003 Defense Department memo regarding legal liability for torture. The conclusions reached advised President Bush and Pentagon officials that prohibitions against torture do not apply to the "war on terrorism."

The file is available here in .pdf format.

http://www.antiwar.com/news/?articleid=2550

Transcript: Taguba, Cambone on Abu Ghraib Report

http://www.antiwar.com/news/?articleid=2479

US Army Report on Iraqi Prisoner Abuse
Hearing, Article 15-6 Investigation of the 800th Military Police Brigade
May 5, 2004

http://www.antiwar.com/news/?articleid=2613

Transcript: Senate Hearing on Iraq Prison Abuse
Wednesday, May 19, 2004

http://www.antiwar.com/ips/deen.php?articleid=3971

UN Report Slams Use of Torture to Beat Terror
Thalif Deen

http://www.antiwar.com/orig2/higgs053004.htm

Has the US Government Committed War Crimes in Afghanistan and Iraq?
by Robert Higgs
Independent Institute
May 30, 2004

DOD DIRECTIVE ON INTELLIGENCE INTERROGATION

"All captured or detained personnel shall be treated humanely, and all
intelligence interrogations, debriefings, or tactical questioning to
gain intelligence from captured or detained personnel shall be
conducted humanely, in accordance with applicable law and policy."

So states a new Department of Defense Directive issued last week.

The directive applies to all DoD personnel and contractors, but not to
other agencies such as the CIA.

It was first reported by the New York Times.

See "DoD Intelligence Interrogations, Detainee Debriefings, and
Tactical Questioning," DoD Directive 3115.09, 3 November 2005:

http://www.fas.org/irp/doddir/dod/d3115_09.pdf

USA: New report corroborates existence of "black sites"
Related documents
United States of America / Yemen: Secret Detention in CIA "Black Sites"
07/11/2005

Press release, 11/08/2005

Amnesty International has released a new report detailing the detention of three Yemeni nationals who "disappeared" into the labyrinth of US-run secret detention facilities in 2003. The men, Muhammad al-Assad, Salah Ali and Muhammad Bashmilah, were kept in complete isolation in a series of secret detention centres operated by the United States, with no judicial review, notice to their family or contact with the outside world.

The report, "Secret Detention in CIA 'Black Sites'" provides detailed information about the three Yemeni nationals who only recently resurfaced in Yemeni custody, including allegations that they were tortured. The cases in the report suggest that the network of clandestine interrogation centres may be larger, more comprehensive and better organized than previously suspected.

Read the report here: http://web.amnesty.org/library/Index/ENGAMR511772005

http://www.iht.com/articles/2005/11/09/news/abuse.php

Report warned CIA about interrogations
By Douglas Jehl The New York Times

WEDNESDAY, NOVEMBER 9, 2005


WASHINGTON A classified report issued last year by the CIA's inspector general warned that interrogation procedures approved by the CIA after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, according to current and former intelligence officials.

The previously undisclosed findings from the report, completed in the spring of 2004, reflected deep unease within the CIA about the interrogation procedures, the officials said. A list of 10 techniques authorized early in 2002 for use against terrorism suspects went well beyond those authorized by the military for use on prisoners of war.

The convention, drafted by the United Nations, bars torture, which is defined as the infliction of "severe" physical or mental pain or suffering. The convention also prohibits lesser abuses that fall short of torture if they are "cruel, inhuman or degrading." The United States is a signatory, but with some reservations set when it was ratified by the Senate in 1994.

The report, by John Helgerson, the CIA's inspector general, did not conclude that the techniques constituted torture, which is also prohibited under U.S. law, the officials said. But Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

The CIA said in a written statement in March that "all approved interrogation techniques, both past and present, are lawful and do not constitute torture." The agency reaffirmed that statement this week but would not comment on any classified report issued by Helgerson. The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading and that are not explicitly prohibited under U.S. law.

The officials who described the report said it discussed techniques used by the CIA against particular prisoners, including about three dozen terrorism suspects being held by the agency in secret locations around the world. They said it specifically referred to the treatment of Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks, who has been detained in a secret location by the CIA since he was captured in March 2003. Mohammed is among those believed to have been subjected to waterboarding, in which a prisoner is strapped to a board and made to believe that he is drowning.

In his report, Helgerson also raised concern about whether the use of the techniques could expose CIA officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration's view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States.

The current and former intelligence officials who described Helgerson's report include supporters and critics of his findings. None would agree to be identified by name, and none would describe his conclusions in detail. They said the report had included 10 recommendations for changes in the CIA's handling of terrorism suspects, but they would not say what those recommendations were.

Porter Goss, the CIA director, testified this year that eight of the report's recommendations had been accepted, but he did not describe them.

The inspector general is an independent official whose auditing role at the agency was established by Congress. His reports to the agency's director are not binding.

Some former intelligence officials said the inspector general's findings had been vigorously disputed by the CIA's general counsel.

To date, the Justice Department has brought charges against one CIA employee in connection with prisoner abuse, and prosecutors have signaled that they are unlikely to bring charges against CIA officers in several other cases involving the mishandling of prisoners in Iraq and Afghanistan.

But the current and former intelligence officials said Helgerson's report had added to apprehensions within the agency about gray areas in the rules surrounding interrogation procedures.

Congressional officials said the report had emerged as an unstated backdrop in the debate now under way on Capitol Hill over whether the CIA should be subjected to the same strict rules on interrogation that the military is required to follow.

Opposing an amendment sponsored by Senator John McCain, Republican of Arizona, Goss and Vice President Dick Cheney have argued that the CIA should be granted an exemption that would allow the agency extra latitude, subject to presidential authorization, in interrogating high-level terrorists abroad who might have knowledge about future attacks.

The list of 10 techniques, including waterboarding or feigned drowning, was secretly drawn up in early 2002 by a team that included senior CIA officials who solicited recommendations from foreign governments and from CIA psychologists, the officials said.

WASHINGTON A classified report issued last year by the CIA's inspector general warned that interrogation procedures approved by the CIA after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, according to current and former intelligence officials.

The previously undisclosed findings from the report, completed in the spring of 2004, reflected deep unease within the CIA about the interrogation procedures, the officials said. A list of 10 techniques authorized early in 2002 for use against terrorism suspects went well beyond those authorized by the military for use on prisoners of war.

The convention, drafted by the United Nations, bars torture, which is defined as the infliction of "severe" physical or mental pain or suffering. The convention also prohibits lesser abuses that fall short of torture if they are "cruel, inhuman or degrading." The United States is a signatory, but with some reservations set when it was ratified by the Senate in 1994.

The report, by John Helgerson, the CIA's inspector general, did not conclude that the techniques constituted torture, which is also prohibited under U.S. law, the officials said. But Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

The CIA said in a written statement in March that "all approved interrogation techniques, both past and present, are lawful and do not constitute torture." The agency reaffirmed that statement this week but would not comment on any classified report issued by Helgerson. The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading and that are not explicitly prohibited under U.S. law.

The officials who described the report said it discussed techniques used by the CIA against particular prisoners, including about three dozen terrorism suspects being held by the agency in secret locations around the world. They said it specifically referred to the treatment of Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks, who has been detained in a secret location by the CIA since he was captured in March 2003. Mohammed is among those believed to have been subjected to waterboarding, in which a prisoner is strapped to a board and made to believe that he is drowning.

In his report, Helgerson also raised concern about whether the use of the techniques could expose CIA officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration's view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States.

The current and former intelligence officials who described Helgerson's report include supporters and critics of his findings. None would agree to be identified by name, and none would describe his conclusions in detail. They said the report had included 10 recommendations for changes in the CIA's handling of terrorism suspects, but they would not say what those recommendations were.

Porter Goss, the CIA director, testified this year that eight of the report's recommendations had been accepted, but he did not describe them.

The inspector general is an independent official whose auditing role at the agency was established by Congress. His reports to the agency's director are not binding.

Some former intelligence officials said the inspector general's findings had been vigorously disputed by the CIA's general counsel.

To date, the Justice Department has brought charges against one CIA employee in connection with prisoner abuse, and prosecutors have signaled that they are unlikely to bring charges against CIA officers in several other cases involving the mishandling of prisoners in Iraq and Afghanistan.

But the current and former intelligence officials said Helgerson's report had added to apprehensions within the agency about gray areas in the rules surrounding interrogation procedures.

Congressional officials said the report had emerged as an unstated backdrop in the debate now under way on Capitol Hill over whether the CIA should be subjected to the same strict rules on interrogation that the military is required to follow.

Opposing an amendment sponsored by Senator John McCain, Republican of Arizona, Goss and Vice President Dick Cheney have argued that the CIA should be granted an exemption that would allow the agency extra latitude, subject to presidential authorization, in interrogating high-level terrorists abroad who might have knowledge about future attacks.

The list of 10 techniques, including waterboarding or feigned drowning, was secretly drawn up in early 2002 by a team that included senior CIA officials who solicited recommendations from foreign governments and from CIA psychologists, the officials said.

WASHINGTON A classified report issued last year by the CIA's inspector general warned that interrogation procedures approved by the CIA after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, according to current and former intelligence officials.

The previously undisclosed findings from the report, completed in the spring of 2004, reflected deep unease within the CIA about the interrogation procedures, the officials said. A list of 10 techniques authorized early in 2002 for use against terrorism suspects went well beyond those authorized by the military for use on prisoners of war.

The convention, drafted by the United Nations, bars torture, which is defined as the infliction of "severe" physical or mental pain or suffering. The convention also prohibits lesser abuses that fall short of torture if they are "cruel, inhuman or degrading." The United States is a signatory, but with some reservations set when it was ratified by the Senate in 1994.

The report, by John Helgerson, the CIA's inspector general, did not conclude that the techniques constituted torture, which is also prohibited under U.S. law, the officials said. But Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

The CIA said in a written statement in March that "all approved interrogation techniques, both past and present, are lawful and do not constitute torture." The agency reaffirmed that statement this week but would not comment on any classified report issued by Helgerson. The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading and that are not explicitly prohibited under U.S. law.

The officials who described the report said it discussed techniques used by the CIA against particular prisoners, including about three dozen terrorism suspects being held by the agency in secret locations around the world. They said it specifically referred to the treatment of Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks, who has been detained in a secret location by the CIA since he was captured in March 2003. Mohammed is among those believed to have been subjected to waterboarding, in which a prisoner is strapped to a board and made to believe that he is drowning.

In his report, Helgerson also raised concern about whether the use of the techniques could expose CIA officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration's view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States.

The current and former intelligence officials who described Helgerson's report include supporters and critics of his findings. None would agree to be identified by name, and none would describe his conclusions in detail. They said the report had included 10 recommendations for changes in the CIA's handling of terrorism suspects, but they would not say what those recommendations were.

Porter Goss, the CIA director, testified this year that eight of the report's recommendations had been accepted, but he did not describe them.

The inspector general is an independent official whose auditing role at the agency was established by Congress. His reports to the agency's director are not binding.

Some former intelligence officials said the inspector general's findings had been vigorously disputed by the CIA's general counsel.

To date, the Justice Department has brought charges against one CIA employee in connection with prisoner abuse, and prosecutors have signaled that they are unlikely to bring charges against CIA officers in several other cases involving the mishandling of prisoners in Iraq and Afghanistan.

But the current and former intelligence officials said Helgerson's report had added to apprehensions within the agency about gray areas in the rules surrounding interrogation procedures.

Congressional officials said the report had emerged as an unstated backdrop in the debate now under way on Capitol Hill over whether the CIA should be subjected to the same strict rules on interrogation that the military is required to follow.

Opposing an amendment sponsored by Senator John McCain, Republican of Arizona, Goss and Vice President Dick Cheney have argued that the CIA should be granted an exemption that would allow the agency extra latitude, subject to presidential authorization, in interrogating high-level terrorists abroad who might have knowledge about future attacks.

The list of 10 techniques, including waterboarding or feigned drowning, was secretly drawn up in early 2002 by a team that included senior CIA officials who solicited recommendations from foreign governments and from CIA psychologists, the officials said.

WASHINGTON A classified report issued last year by the CIA's inspector general warned that interrogation procedures approved by the CIA after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, according to current and former intelligence officials.

The previously undisclosed findings from the report, completed in the spring of 2004, reflected deep unease within the CIA about the interrogation procedures, the officials said. A list of 10 techniques authorized early in 2002 for use against terrorism suspects went well beyond those authorized by the military for use on prisoners of war.

The convention, drafted by the United Nations, bars torture, which is defined as the infliction of "severe" physical or mental pain or suffering. The convention also prohibits lesser abuses that fall short of torture if they are "cruel, inhuman or degrading." The United States is a signatory, but with some reservations set when it was ratified by the Senate in 1994.

The report, by John Helgerson, the CIA's inspector general, did not conclude that the techniques constituted torture, which is also prohibited under U.S. law, the officials said. But Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

The CIA said in a written statement in March that "all approved interrogation techniques, both past and present, are lawful and do not constitute torture." The agency reaffirmed that statement this week but would not comment on any classified report issued by Helgerson. The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading and that are not explicitly prohibited under U.S. law.

The officials who described the report said it discussed techniques used by the CIA against particular prisoners, including about three dozen terrorism suspects being held by the agency in secret locations around the world. They said it specifically referred to the treatment of Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks, who has been detained in a secret location by the CIA since he was captured in March 2003. Mohammed is among those believed to have been subjected to waterboarding, in which a prisoner is strapped to a board and made to believe that he is drowning.

In his report, Helgerson also raised concern about whether the use of the techniques could expose CIA officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration's view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States.

The current and former intelligence officials who described Helgerson's report include supporters and critics of his findings. None would agree to be identified by name, and none would describe his conclusions in detail. They said the report had included 10 recommendations for changes in the CIA's handling of terrorism suspects, but they would not say what those recommendations were.

Porter Goss, the CIA director, testified this year that eight of the report's recommendations had been accepted, but he did not describe them.

The inspector general is an independent official whose auditing role at the agency was established by Congress. His reports to the agency's director are not binding.

Some former intelligence officials said the inspector general's findings had been vigorously disputed by the CIA's general counsel.

To date, the Justice Department has brought charges against one CIA employee in connection with prisoner abuse, and prosecutors have signaled that they are unlikely to bring charges against CIA officers in several other cases involving the mishandling of prisoners in Iraq and Afghanistan.

But the current and former intelligence officials said Helgerson's report had added to apprehensions within the agency about gray areas in the rules surrounding interrogation procedures.

Congressional officials said the report had emerged as an unstated backdrop in the debate now under way on Capitol Hill over whether the CIA should be subjected to the same strict rules on interrogation that the military is required to follow.

Opposing an amendment sponsored by Senator John McCain, Republican of Arizona, Goss and Vice President Dick Cheney have argued that the CIA should be granted an exemption that would allow the agency extra latitude, subject to presidential authorization, in interrogating high-level terrorists abroad who might have knowledge about future attacks.

The list of 10 techniques, including waterboarding or feigned drowning, was secretly drawn up in early 2002 by a team that included senior CIA officials who solicited recommendations from foreign governments and from CIA psychologists, the officials said.

What did Bush and adminstration officials say in the early days after the Abu-Graib photos came out.

Bush: 'I have never ordered torture'
Administration releases memos on detainee treatment
Wednesday, June 23, 2004 Posted: 10:49 AM EDT (1449 GMT)


RELATED
• Gallery: Abuse at Abu Ghraib (Viewer discretion advised)


WASHINGTON (CNN) -- President Bush said that he had never sanctioned any torture techniques, as the White House sought to quell questions about the interrogation of military prisoners.

"Look, let me make very clear the position of my government and our country," Bush said Tuesday in the Oval Office.

"We do not condone torture. I have never ordered torture. I will never order torture. The values of this country are such that torture is not a part of our soul and our being."

Bush's comments to reporters came as the White House released a raft of documents that administration officials say show there was no policy allowing the abuse of prisoners.

Bush accepted advice from the Justice Department that the Geneva Conventions governing treatment of prisoners of war did not apply to al Qaeda or Taliban detainees captured in Afghanistan, but he ordered the military to follow the conventions "to the extent appropriate and consistent with military necessity," according to one of the memos released by the White House.

"Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment," Bush wrote in the memo dated February 7, 2002. "Our nation has been and will continue to be a strong supporter of Geneva and its principles."

The administration's policies on the interrogation of prisoners have become an issue in the wake of revelations of abuses at Abu Ghraib prison in Baghdad.

Pentagon officials have described the abuse of some Iraqi prisoners at that facility as the work of a small number of lower-level military police.

But some lawmakers -- mostly Democrats -- have questioned whether administration and/or military policies enacted in the wake of the attacks of September 11, 2001, gave tacit approval to abuse.

Sen. Patrick Leahy, the top Democrat on the Senate Judiciary Committee, said Tuesday's release of documents did little to clear up the questions. He called the release a "self-serving selection" and vowed to press for more answers.

"Somewhere in the upper reaches of this administration, a process was set in motion that seeped forward until it produced this scandal," Leahy said in a written statement. "To put this scandal behind us, first we need to understand what happened."

But Sen. Orrin Hatch, the Republican chairman of that committee, called the release of the documents "a productive step" and criticized what he described as effort to "politicize this critical national security issue."

In a related development, senior Justice Department officials Tuesday disavowed an August 1, 2002, memo about the level of physical and mental pressure that could be used in interrogations of al Qaeda and Taliban detainees.

In that memo, then-Assistant Attorney General Jay Bybee wrote, "We conclude that torture as defined ... covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure."

Critics said that memo could be interpreted as opening the door to mistreatment of prisoners, a position disputed by the Justice Department.

But one senior Justice Department official said the memo "contributed to public confusion over the the policy," adding that it would be replaced. Even as they disavowed the memo, Justice Department officials said they stood behind the legal conclusions that the Geneva Conventions were not applicable.

Meanwhile, a source told CNN that Defense Secretary Donald Rumsfeld never approved a controversial interrogation technique called "water boarding." That source had told CNN the opposite Monday.

The senior defense official who provided the original information to CNN now says Rumsfeld only approved "mild, noninjurious physical contact" with a high-level al Qaeda detainee at Guantanamo Bay, Cuba, and specifically did not approve a request to use water boarding.

The tactic involves strapping a prisoner down and immersing him in water to make the subject feel as though he is drowning.

The documents released Tuesday, as described by administration officials, help to show what ideas were discussed versus what was actually rubber-stamped by the White House in terms of the legal limits of interrogation.

"We want to drive home what was approved and what was speculated about. It is a distinction that has been lost," one official told CNN.

Senior administration officials say there were a lot of "academic" musings or "opinion" memos written after the terrorist attacks about how to apply interrogation laws and rules to the war on terrorism.

One official said it was "uncharted territory," and people at various agencies were trying to figure out how to deal with its legalities.

Memos list tactics

The memos to and from Rumsfeld show that though the water-boarding technique was on a list of requested aggressive tactics, Rumsfeld did not approve it, officials say.

The list of requested aggressive tactics included:


Convincing a detainee that death or severe pain could be imminent for him or his family


Exposure to cold weather or water


Use of a wet towel or dripping water to induce a perception of suffocating.


Mild, noninjurious physical contact such as grabbing someone's arm, poking them in the chest or light shoving.

Only the fourth tactic -- mild, noninjurious physical contact -- was approved.

Cases against accused soldiers advance

Seven U.S. soldiers have been accused in connection with the abuses at Abu Ghraib.

On Tuesday, a military judge in Baghdad denied a motion ordering a new Article 32 investigation into allegations that Staff Sgt. Ivan "Chip" Frederick abused prisoners.

Col. James Pohl rejected the motion during a pretrial hearing at Camp Victory, near Baghdad International Airport.

Originally set for Monday, the hearing was postponed because Frederick's civilian attorney did not appear in court, citing security concerns and difficulties getting to Baghdad.

An Article 32 hearing is the equivalent of a grand jury hearing, and the staging of such a hearing would have been akin to dropping the original charges.

Spc. Charles Graner and Sgt. Javal Davis had their pretrial hearings as scheduled Monday at a coalition headquarters building in central Baghdad.

Spc. Sabrina Harmon faces an Article 32 hearing Thursday, the military told CNN.

All the accused are members of the 372nd Military Police Company and have been reassigned to other duties.

CNN's Dana Bash and Jamie McIntyre contributed to this article.
http://www.cnn.com/2004/ALLPOLITICS/06/22/prisoner.memos/

Some of Gonzales' words.

Undiplomatic Immunity
Did Al Gonzales say the president can authorize torture?
By Chris Suellentrop
Posted Thursday, Jan. 6, 2005, at 10:51 PM ET



Answer the question, please

Remember what Dick Cheney said to Sen. Patrick Leahy this past June on the Senate floor? Think of Alberto Gonzales' testimony Thursday before the Senate Judiciary Committee, where Leahy is the ranking Democrat, as the Bush administration's logical follow-up: "And your mother."

By late afternoon, Leahy had become so frustrated with Gonzales' refusal to give clear answers to questions from him and other Democrats that he held aloft a bulky file that he said was filled with unanswered letters and queries addressed to Gonzales, President Bush's nominee for attorney general. "If he's confirmed, I'm sure he'll feel that he never has any duty to answer them," Leahy said. Leahy's file may have been bursting with questions, but for most of Thursday's nearly nine-hour hearing the committee's Democrats wanted an answer to just one question: Does Gonzales think the president has the power to authorize torture by immunizing American personnel from prosecution for it?

During the hearing, Leahy called this idea, which comes from the August 2002 document dubbed the "Bybee memo," "the commander-in-chief override." And by hearing's end it was clear that Gonzales believed in it. (Otherwise, why not simply answer, "No"?) Early in the day, Gonzales professed the requisite faith that America was "a nation of laws and not of men," but his opinion of the president's ability—however limited—to authorize individuals to engage in criminal acts suggests the opposite. This is a government of good men, Gonzales implicitly assured the senators, so there's no need to worry about legal hypotheticals like whether torture is always verboten. Don't worry, because we don't do it. It's a strange argument from a conservative: We're the government. Trust us.


Committee chairman Sen. Arlen Specter kicks off the questioning with a softball. "Do you approve of torture?" he asks, and Gonzales assures him, "Absolutely not." In fact, Abu Ghraib "sickened" him, Gonzales says, and if anything illegal went on at Guantanamo, well, he condemns that, too. But that's the crux of the entire debate: When it comes to torture, what's legal and what's illegal?

Specter realizes this and tells Gonzales, "As chairman, I think further amplification is necessary." But he's sure the rest of the committee will handle that, and they do. Leahy asks Gonzales if he agrees with the definition of torture—"For an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death"—devised by an August 2002 memo that was addressed to him. Gonzales says he doesn't remember. Leahy asks if he agrees today. No, Gonzales says.

Then comes the question of the day: "Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief override and immunize acts of torture?" Leahy asks. That's "a hypothetical that's never going to occur," Gonzales says, because we don't torture people. He continues, "This president has said we're not going to engage in torture under any circumstances, and therefore that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn." Translation: Yes, I think the president has the legal authority to immunize acts of torture, but he doesn't want to, so I'm not going to bother with defending the idea.

Pressed for an answer, Gonzales concedes, "I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional," and therefore the president may ignore it. That's a general statement of principle, Leahy says, but I'm asking a specific question. Can the president immunize torture? Gonzales retreats to the that's-hypothetical-and-it's-not-gonna-happen defense. OK, Leahy says. What about leaders of other countries? Can they immunize torture? I'm not familiar with their laws, Gonzales replies.

Gonzales declares himself agnostic on an astonishing array of issues, including whether torture is a useful interrogation tactic. Sen. Herb Kohl of Wisconsin notes that Ashcroft has said torture doesn't work. What does Gonzales think? "Sir, I don't have a way of reaching a conclusion on that. All I know is that the president has said we're not going to torture under any circumstances."

Sen. Lindsay Graham is the lone Republican to blast Gonzales. His boyish face comes paired with a kindergartner's hyperactivity, as he impatiently rocks his chair while waiting for his turn. During Gonzales' answers to others' questioning, Graham sometimes wears a look of confusion mingled with disgust. "I think we've dramatically undermined the war effort by getting on a slippery slope in terms of playing cute with the law," Graham, a reserve Air Force JAG officer, says. He adds later, "And I think you weaken yourself as a nation when you try to play cute and become more like your enemy instead of like who you want to be."

Gonzales senses that Graham has made a mistake and seizes on it. "We are nothing like our enemy, Senator," he protests. They behead people, like Danny Pearl and Nick Berg. Graham notes that this is a pretty low moral standard for America to aspire to. I agree that we're nothing like the enemy, he says. "But we're not like who we want to be and who we have been." (During Graham's second round of questioning, Gonzales tells him that government lawyers did the very best they could when they wrote the memo. "Well that's where you and I disagree," Graham retorts. "I think they did a lousy job.")

Later, it's Sen. Dick Durbin's turn to try to get Gonzales to elucidate his views on the separation of powers. Can the president immunize people from prosecution for torture? Gonzales restates that it's theoretically possible for Congress to pass an unconstitutional law that the president can justifiably ignore. "Has the president ever invoked that authority?" Durbin asks. No, Gonzales says. When Leahy's turn comes around again, the ranking Democrat complains, "You never answered my question." But Gonzales has answered. Leahy and the Democrats just don't like his answer.

Sen. John Cornyn of Texas, a Republican, comes to Gonzales' defense. President Clinton's solicitor general, Walter Dellinger, wrote in 1994 that the president can refuse to execute laws he considers unconstitutional, Cornyn notes. Sen. Russ Feingold dismisses this during his turn to speak. There's a difference between not enforcing a statute and authorizing people to break the law, he says. Look, Gonzales reiterates, that 2002 memo is no longer administration policy. And on top of that, we don't torture people. But, Feingold asks, does President Bush have the power to authorize violations of criminal law? Gonzales makes some noise about "a presumption of constitutionality" and his oath as attorney general to defend congressional statutes, then gives his real answer: I'd take it very seriously if I ever advised the president to do such a thing. "So the president's above the law?" Feingold asks. No, Gonzales says, but he can choose not to enforce unconstitutional laws. That's not what I'm asking, Feingold complains. We don't torture people, Gonzales says. Feingold gives up and pleads, Will you just let us know instead of waiting two years next time?

Durbin tries to get Gonzales to clarify. Can U.S. personnel, under any circumstances, engage in torture? Gonzales still can't muster a definitive "no." "I don't believe so, but I'd want to get back to you on that," he says. "There are a number of laws that prohibit that."

By day's end, Leahy's frustration drives him to a hilarious tangential inquiry as to how Gonzales vetted Bernie Kerik, President Bush's withdrawn nominee for secretary of homeland security. (Gonzales protests that Kerik wasn't nominated. "It was an announcement of an intent to nominate," he says.) Leahy wants to know whether Gonzales knew about Kerik's so-called "9/11 apartment," or his extramarital affair, or best of all, whether the nanny that he said he didn't pay Social Security taxes for even existed. No one knows her name or what country she comes from, Leahy says. "Do you know whether there ever was a nanny?" Gonzales answers by saying that Kerik is no longer under consideration. "Maybe there was such a nanny," Leahy muses. "I don't know."

Finally, Harold Hongju Koh, a Yale professor of international law (and dean of the Yale Law School), solves the riddle—about the "commander-in-chief override" not the mysterious nanny—by proposing a simple question for Gonzales. He tells the Judiciary Committee, "A simple question you could have asked today was, 'Is the anti-torture statute constitutional?" If Gonzales answers yes, then he does not believe the president can override the statute. Mystery solved. Only one problem with this professorial inquiry: By the time Koh testified, Gonzales was already gone.


Chris Suellentrop, a writer in Washington, D.C., is a former Slate staffer.
http://www.slate.com/id/2111962/

United States Department of Defense.
News Transcript
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Presenter: Lawrence Di Rita and Senior Defense Official Thursday, May 20, 2004

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DoD Background Briefing
DI RITA: Thanks a lot for coming over. There was a couple of things I wanted to update you. There’s been some continuing interest in some activities involving the Judge Advocate General’s department, so I thought we’d give a little bit of a sense of that, too. Who we’ve got with us today. I’ll be on the record. The other two officials here will be on background.



But the first thing I want to do is just give you a general update on where we stand – where we think we stand across the board. The secretary, I think, as most people saw, was up on the Hill today. He went to the Senate. He had General Abizaid with him, General Sanchez, General Miller. I’m not sure who else he may have had with him.



He gave a general update on the ongoing activities in the CENTCOM AOR. General Abizaid gave a sort of brief on where he thinks we are throughout his AOR. The secretary gave a general discussion about where he believes we stand with respect to the various activities associated with the prison detainee situation. He’s obviously been up and testified. There have been two or three other hearings. And as we saw this week, General Sanchez and General Abizaid and General Miller and Colonel Warren testified yesterday and put a fair amount of structure into what had, you know, therefore been a lot of other people’s versions of what had happened and then they were, I think, pretty helpful in explaining the things that they were involved in directly.



You know, where we are now is that there are these ongoing additional investigations. There’s the General Fay investigation which was alluded to during the hearing yesterday. That’s proceeding. And General Fay is looking at the military intelligence aspects of what happened at that prison and what is happening, more generally, in interrogation procedures. Lieutenant General Mikolashek, the Army Inspector General is off doing his assessment of the detainee operations theater-wide. He’s been throughout the theater. He’s drawn some preliminary – I wouldn’t say conclusions, but findings and he’s pulling that together and he’ll be making his report within the coming period ahead.



We’re trying our best to better understand the ICRC and the various points at which they’ve been involved in these activities, both in Guantanamo and in Iraq and Afghanistan. And there’s an enormous amount of information that we’re trying to just sift through and better understand. There’s the question of other – and this is more of a question than anybody’s uncertainty, but there is a question as to are there anybody else with detainees that has detainee management functions that we haven’t considered and haven’t got somebody looking at and understanding what procedures are being followed, etcetera. Other battlefield of detainee – you know, units that might be holding on to detainees for battlefield interrogations. So the secretary has asked that people go off and consider those possibilities, that there are other detainee groups that are not included in these other activities we’ve described. So I think what we’re trying the best to do is get everybody’s clear understanding of the range of possible information that could be coming forward. And the secretary’s concluded there will be more information coming forward. It’s almost certain that they’ll be more surprises, because we’re going to be turning over every rock that we can conceivably go out and turn over. And that’s the range of activities that the secretary, I think, gave the members a sense of this afternoon.



There’s one in which I think it’s useful to spend a little bit more time and that’s this issue of what processes were established early on to develop what had by now become the standard operating procedures in Guantanamo, that General Miller has talked about in some length. And to just set the scene for everybody to remind everybody, this work to structure and develop a process was begun when detainees started to arrive in Guantanamo and we were picking up people off the battlefield in Afghanistan, whether they were Taliban or whether they were al Qaeda or suspected of being one or the other. And we’ve been quite clear that the president had determined that the conflict with al Qaeda was not subject to the Geneva Conventions and that the conflict with the Taliban, while it was subject to the Geneva Conventions, people picked up as Taliban would be considered unlawful enemy combatants because we’ve had a character of how they fought. So we had people that were in Guantanamo, we had people who were almost certainly known al Qaeda and who were known al Qaeda, people who were believed to have knowledge of either potentially pending terrorists activities, potentially in the United States and people who were believed to have knowledge of the 9/11 terrorist attack. So this was the character of the people who were in Guantanamo, not prisoners of war, but unlawful enemy combatants and known al Qaeda terrorists. And it was important to develop procedures by which these people could be interrogated and it was on that basis that what ultimately became the procedures that General Miller has now talked to at some length, were developed and it was a process established to develop those procedures.



And what I’d like to do now is just turn it over to our two experts who were involved in that process and let them kind of describe a little bit and then we’ll take some questions.



SR. DEF. OFFICIAL: Sure. I think you’ve laid it out very well. And yet, late in December of 2002, there was some – as Larry pointed out, there was some specific individuals that the commander at Guantanamo identified as potentially having not just information from the 9/11 attacks, but also perhaps things that might be happening in the future. And there’s some substantial purpose in trying to figure out an appropriate way to try to get that information. So that was one of the principal forces at work to see if there were any techniques or procedures that were appropriate beyond doctrine. And so as that played out, naturally and understandably, particularly in this department, we’re quite fearful and reticent to change from any of the doctrine. So there was a lot of discussions back and forth within the Pentagon about how to deal with that within the combatant commands.



As that anxiety became more apparent in the context of one individual, the secretary asked me to ask the general counsel to pull together a group of stakeholders – all the appropriate stakeholders, not just lawyers -- but to fully examine the legal, the policy, the national security and intelligence issues and related things. So in the middle of January, the secretary…



SR. OFFICIAL: This was in ’03.



SR. DEF. OFFICIAL: … of January ’03. The secretary asked for the general counsel to pull that together. And now the general counsel at that time established a working group that had representatives from all of those areas. And by that, I mean, military and civilian lawyers, intelligence officials, including the Defense Intelligence Agency, the Joint Staff representing the combatant commanders, policy.



[To Senior Official]: Can you think of any others? Any other areas?



SR. DEF. OFFICIAL: There was some Justice Department participation on the legal side of it. And it was a process that was – a long process. It began in the middle of January and it didn’t conclude until the middle of April when the secretary, having considered all the input, issued some instructions to the combatant commander. But in the course of that, there was naturally a lot of give and take from all parties and they came from all directions, as one might imagine, from that discussion. And [name deleted per the groundrule], you had [Inaudible] something you’d like to?



SR. OFFICIAL: See, I would just to help put it in context, I would say that for lawful combatants, we have well-established procedures of how to handle enemy prisoners of war. We’ve properly trained people. They understand what the rules are. Everyone’s comfortable with the process and we know that the Geneva Convention is fully applying and so forth.



By the fall of 2002, some questions were being raised about what our limits on interrogation techniques that can be followed and so forth. And the folks down at Guantanamo Bay wanted as clear guidance as could be provided them. Then as has been discussed, ultimately a working group was appointed to carefully look into what we need to get and how to get it and how to conform that with the requirements of the law.



At some point in the process, the uniformed attorneys -- the JAGs – wanted to make sure that our objections were being considered. So we had raised them verbally. We’ve raised them at the action officer level. Ultimately, some memos were, in fact, signed laying out some considerations that we believe were very important in the process. By the time the final draft of the working group was completed, those considerations had all been carefully evaluated. Speaking for me personally, but also having spoken to all of the senior uniformed attorneys, I can say the final report did not raise any legal objections. We were comfortable, from a legal standpoint, with the direction that was provided.



Again, as has been mentioned, this document was directed for unlawful combatants and Guantanamo Bay. And…



SR. DEF. OFFICIAL: Specifically limited for that purpose.



SR. OFFICIAL: Right. And we needed to give guidance in that because that was the exception and the exceptional circumstances. So that’s why we had met and that was why we gave the guidance that was then provided.



Q: When you use the term “objections,” do you mean – what did you object to or the [Inaudible] that they might not be treated as prisoners of war or not being treated as prisoners of war, that they might go too far and get information? What were the objections?



SR. OFFICIAL: All of that was considered. Specifically, objections were made to some of the interrogation techniques that were being considered that might have been different than what our people had been trained to do under the Geneva Conventions. We realize this was a different situation. We needed to stake out proper guidance for the people who would be conducting interrogations and also for the people who would be acting in the law enforcement [Inaudible] of maintaining the detainees [Inaudible].



Q: [Inaudible] And after you got through all of the – in the first place, when they were first proposed in the fall of ’03, those objections started to…



SR. DEF. OFFICIAL: The fall of ’02.



Q: Oh, I’m sorry – the fall of ’02, were the techniques used then?



SR. DEF. OFFICIAL: I believe that there were some techniques that eventually were approved were used in the initial phase which began and then stopped.



Q: In the fall of ’02?



SR. DEF. OFFICIAL: The fall of ’02, yes.



[Cross Talk]



SR. DEF. OFFICIAL: You know, late fall of ’02 to early January of ’03, which is when the secretary said, look, let’s get a very thorough vetting of all of this from every single perspective, including the military cultural perspective, which is something that’s important. And I should say that this working group, which had the representation that we described, was just part of it because that working group product was then – as some have said – washed around the building, ultimately discussed with each of the secretaries in the military departments and with the chiefs of staff in the services in the tank section, so that everybody who had a stake – and including the combatant commanders through the joint staff – everybody who had a stake in the issue had a chance to express a view, discuss the tradeoffs, because it’s not just a legal issue, it’s a much broader issue.



DI RITA: On that point, let me be explicit. We have said consistently since the beginning that the principal objective of interrogations at Guantanamo was for the purpose of collecting intelligence to prevent future attacks on the United States. That was the objective.



Q: Were the any…



DI RITA: So – hold on. So the interrogators were trying to work and the commander down there – you had intelligence officials that were tugging in a direction that might have been different from lawyers and that’s fair. I mean, this is a process that involves, by definition, some tension. And it was an unusual circumstance. So it when techniques were being used prior to this process established, they would get the legal review of the task force down there and they would have the full legal review by the people there, but the secretary’s concern was this is a broader issue. People should have a much better feel and understanding and appreciation for what we’re doing and so let’s get this working group to kind of reach into all of the various areas that have to have an opinion.



SEN. OFFICIAL: So [Inaudible] the final document that was approved by the Secretary of Defense in mid-April of 2003 was fully consistent with international norms and standards. The interrogation techniques that he authorized are something the uniformed attorneys were completely comfortable with.



Q: But were those the techniques that he authorized a commander of Guantanamo to use in mid-April of 2003, were those the same techniques that had been offered? So the techniques were scaled back?



SR. DEF. OFFICIAL: Yes, yes.



Q: As a result of some of the objections that were raised?



SR. DEF. OFFICIAL: No. As a result of the whole process. I mean, there were objections or comments raised from many different perspectives. I mean, what the secretary ultimately has authorized is far less than what some people in the organization would have liked. I mean the product that the secretary has – or the instructions that the secretary has issued to the commander of the Southern Command and then through him to the commander of Guantanamo strictly for unlawful combatants at Guantanamo Bay, Cuba reflect a very hard-thought process from many different [Inaudible].



Q: So if you’ve got a prisoner down there who you think may have knowledge of a planned attack on the United States and it takes – I mean, that’s a long time to lawyer this thing up, if that information is…



[Cross Talk]



Q: Well, to consider this technique, you’re going from late December to mid-April. Nothing was done to get that information from that guy in that intervening period?



SR. DEF. OFFICIAL: I don’t think it’s fair to say nothing is done. I think it’s fair to say that no extraordinary or no non-doctrinal approaches, as far as…



DI RITA: Yeah. I mean, and that’s the point, though. This was…



Q: So it [Inaudible] regular interrogation, whatever. The trouble is we don’t know what regular interrogation is [Inaudible].



SR. DEF. OFFICIAL: Well, there is a doctrine. I mean, there are [Inaudible]. There is a way that the soldiers and the sailors and the airmen and Marines are trained in the Defense Department so it’s consistent with decades of practice.



Q: So that’s the list -- on the famous list. That’s all on [Inaudible]?



OFFICIAL: Right, yeah.



SR. DEF. OFFICIAL: [Inaudible] you can look at – I don’t know which list you’re talking about.



Q: Did the guy ever give up the information?



DI RITA: Well, we don’t talk about individual interrogations.



[Cross Talk]



Q: Well, let me ask you this way. Was an attack headed off as a result…



[Cross Talk]



DI RITA: We’re just not in a position to discuss that here. It’s highly sensitive information. The point is to describe the situation as though – as anything other than everybody mindful of the uniqueness, it was new, it was complicated and it was balancing the need for intelligence, versus the need to do it right. That’s the only way to describe it. And it was a hard darn problem because we did have known al Qaeda down there. And known al Qaeda who were believed to have information involving attacks on the United States. So you know, we have been fortunate and it’s been the result of a lot of hard work and luck that there haven’t been further attacks in the United States. But beyond that, nobody’s prepared to say what the results of individual interrogations were.



Q: But sir, but this technique that the secretary ended up signing off [Inaudible] the procedure, that qualifies as an extraordinary procedure?



SR. DEF. OFFICIAL: Well, it’s different from the [Inaudible]. It is a…



DI RITA: And it’s like – and I don’t want to say compare Sanchez’s slide to this, but the process was like that. In the case of Iraq to go back to a different environment, if they want to do something other than doctrine, they have to seek permission in an interrogation plan. The same procedures were applied prior to Iraq in Guantanamo. As a result of this process, the combatant commander was told if you want to use certain techniques, you need a plan and that plan has to be approved at some level, depending on the approaches that you’d like to use. And in this case, it was approved by the secretary of defense.



Q: With [Inaudible]?



DI RITA: It has been discussed at length. [Inaudible] to say ad nauseum now this week that that procedure was the procedure. The procedures developed in that process were the procedures that General Miller implemented in Guantanamo, became skilled at implementing with the Joint Task Force interrogation down there and then went later that same year to Iraq to compare the procedures in Iraq and say here’s some things we’re doing – not in terms of approaches, but in terms of the process, that you guys might want to consider. And he’s now talked about that at length.



SR. DEF. OFFICIAL: And it’s important, Larry -- if I may add – what I understand General Miller did [Inaudible] was not interrogation techniques, it was a…



DI RITA: Process.



SR. DEF. OFFICIAL: … it was a whole method of discipline and structure and organization and the techniques piece was just a tiny little thing…



Q: Will you go back to something you said earlier? You said that in the fall of 2002 some questions were raised about what are acceptable interrogation techniques. And if I understand correctly, that’s at a point in time when it was a little fuzzy and some of these extraordinary techniques were actually being used, who raised those questions and what were the questions?



SR. DEF. OFFICIAL: [Inaudible] many decisions happened and [Inaudible] is that the people who need guidance. If doctrine or standing orders don’t really apply, they develop a proposal and they do their own analysis and if they feel like they need additional guidance, they will [Inaudible] it out through higher headquarters and this is an example of that. I think that’s fair to say.



Q: These are people who are [Inaudible] meetings from guidance. This was the secretary saying…



DI RITA: Yeah, exactly. And in fact, they said we have detainees we would like to interrogate. We think it would be useful to have techniques that are not included in doctrine. Here’s a proposal and that proposal was based on a legal analysis by the people in Guantanamo. And that legal analysis was associated with it. And those proposals were then vetted here and some approvals were made, some approvals were not made. And interrogation was being conducted on that basis. That was sort of a – I won’t say – that was kind of almost case by case. It was not being done in a way that was systematic. And people who in this department like things that are systematic, so there were people that were saying, jeeze, I’m not comfortable with that. Sure, it’s gotten a legal review, but I didn’t have an input there and I didn’t have – and that’s when the secretary said people should have an input [Inaudible].



[Cross Talk]



SR. DEF. OFFICIAL: On this proposal, can I interrupt?



DI RITA: Certainly.



SR. DEF. OFFICIAL: Just because I think that comes later in time. What Larry described is how we remember it happening. But there became some emergency because of an individual who had information that the people at Guantanamo believed was important, not just about perhaps 9/11, but about future events and that’s what at least sort of crystallized the first decision which then was reconsidered and then was then the product of this working group.



[Cross Talk]



Q: When was the first decision?



SR. DEF. OFFICIAL: I would say--



DI RITA: Within the course of the fall. And let me just be careful about one thing. We’re rediscovering a lot of this in the context of trying to make sure we fully understand all aspects of detainee operations. As I said at the beginning, the secretary has asked that we go back and systematically review a variety of activities involving detainee operations. Guantanamo is one of those. We know, by now, well the procedures that General Miller used and understood and took forward in trying to better understand that, we’re looking backwards. And some of this stuff is becoming clearer as to how we got there. We’re reminding ourselves how we got there. And it’s in that process that we’re undertaking right now. So we’re going to learn more and we’re going to have more detail as we learn more. But this is sort of the sense of it as it we have [Inaudible]



[Cross Talk]



Q: Can I just get one clarification real quick? You said in the Iraq and Guantanamo comparison, that in the Guantanamo case when there was a non-doctrinal procedure, the secretary approved that directly. Yet, when there were non-doctrinal procedures in Iraq, he did not?



DI RITA: In the case of Guantanamo, the combatant commander raised it in that way. He said, I would like additional authorities and he sought the guidance of the secretary of defense. In the case of Iraq – and remember in Guantanamo when dealing with people, although treated consistent with, not subject to the Geneva Conventions. So it is somewhat different.



SR. DEF. OFFICIAL: It’s very different.



DI RITA: It’s very different. In the case of Iraq, as General Abizaid testified yesterday, they had the authority. They are maintaining detainees in Iraq. They are subject to the Geneva provisions.



SR. DEF. OFFICIAL: Without question, the process.



DI RITA: Unquestionably.



Q: So he didn’t directly approve of changing the technique?



DI RITA: He who?



Q: The secretary.



DI RITA: Of change where?



Q: In Iraq.



DI RITA: He did not. This was done by the commander of the Joint Task Force with the review by the commander of Central Command and that’s what they talk about.



[Cross Talk]



Q: In the future now in which the secretary signs off on all extraordinary procedures…



[Cross Talk]



DI RITA: Not on all. On certain specified.



Q: In Guantanamo?



DI RITA: Um-hm.



Q: Is that a result of this review and…



DI RITA: No.



Q: … was instituted in April?



SR. DEF. OFFICIAL: Yes, yes.



DI RITA: But that happened to have been the procedure that predated this review as well. When they wanted something that was non-doctrinal, they came to the secretary…



[Cross Talk]



Q: Was that approved?



DI RITA: Was what approved?



Q: When the proposal was put forward to do something – originally, to do something non-doctrinal in the case of this individual, was that approach approved?



[Cross Talk]



SR. DEF. OFFICIAL: There were certain things authorized, but not used in certainly in any…



DI RITA: It’s a little bit like what Sanchez said he authorized the range of things. Only a few things were ever sought and used. And it appears that’s the case in Guantanamo, but we’re not.



Q: But in this case where you had a prisoner who was believed to have knowledge of future attacks and so on, a proposal was made to interrogate them in a way that was outside of the doctrine. Was that proposal approved?



SR. DEF. OFFICIAL: Yes, there were. There were some authorizations given, but not…



DI RITA: What it appears it that the proposal was made in the form of a range of desired authorizations. The secretary approved ranges of things and then the combatant commander and the Joint Task Force commander, as they developed their interrogation plans, used elements of that. And so they didn’t use everything that was authorized.



[Cross Talk]



DI RITA: And in fact, it appeared they didn’t use much.



Q: And it was after that that objections started to be raised by JAG officers?



SR. DEF. OFFICIAL: No, no. The objections that you’re referring to, I think, are as the review process went forward, is that correct?



[Cross Talk]



Q: The objections raised in the fall were for people at GITMO who are participating in the process?



SR. DEF. OFFICIAL: It’s just that these are hard questions. And you know, as we sort of tried to step gingerly in dealing with a new paradigm with this very difficult set of choices to make, everybody thinks twice before they take the next step. And so what the secretary decided after a short period of time was let’s step back and let’s take a much fuller look across the board with all stakeholders. I mean, what…



Q: [Inaudible] December ’02, is that right?



SR. DEF. OFFICIAL: Mid-January.



DI RITA: January.



Q: Mid-January.



DI RITA: Of ’03.



SR. DEF. OFFICIAL: So there was a few-week period where, you know, he authorized certain things that were not employed by anywhere near…



Q: Prior to that.



SR. DEF. OFFICIAL: Right. Nor what he ultimately – what might have been the commander, so far as we understand, didn’t…



DI RITA: And it’s preliminary. We’re still learning about this. But it appears that a range of techniques were authorized – a very small number in a very few cases were used and we’re still getting a better understanding of that going forward, but…



Q: From – I’m sorry. From January to April, we’re hearing a lot about the 72-point matrix. And I think that we might be a little confused as to what that is. Is the 72-point matrix the list of all the universe of possibilities that was then…



[Cross Talk]



Q: … down into a smaller list that is now in operation?



DI RITA: We’ll do our best on that one.



SEN. OFFICIAL: And I’m not sure where the number 72 came from. But there was a time early on in the process when the working group got started where we wanted to consider any techniques that could be successful – techniques that the interrogators would like to utilize. And so it was substantially less than 72 that was ultimately evaluated and it was about two-thirds of those that ultimately went to the secretary in the final report for his approval as interrogation techniques that could be sanctioned.



[Cross Talk]



DI RITA: And in that matrix that you’re referring to was a working document developed by the working group for their analysis.



Q: Got it. On the two-thirds – the list of two-thirds that came out, is that organized into a green, red, amber thing?



DR: No. No.



Q: It’s just everything is open. If you want to use anything on there, do you have to get SecDef approval or who’s approval do you get?



SEN. OFFICIAL: For the techniques that were finally approved by the secretary in mid-April of 2003, only a handful required approval at the secretary’s level.



Q: Okay. So that’s still [Inaudible] that some things [Inaudible] gets elevated. And the others…



DI RITA: Some required notification to the combatant commander, some required approval and notification. I think there’s a sort of cascading.



SEN. OFFICIAL: And again, that guidance was provided for interrogations of unlawful combatants.



[Cross Talk]



Q: Has anything been elevated to Rumsfeld on any – [Inaudible] a small handful techniques or procedures?



SR. DEF. OFFICIAL: I don’t know that we [Inaudible].



DI RITA: I don’t know that we know that well enough. I mean, we’re still, as I said, in the context of making sure we fully understand what the detainee operations are going – recognizing that there are procedures in place, these facts that are interesting are not all well-known right now.



Q: A number of techniques have been discussed, as you know, going to hearings on the Hill: sensory deprivation, sleep adjustments, dietary manipulation, stress positions, isolation for more than 30 days, presence of dogs. Are those techniques currently available to be used on detainees at Guantanamo? Are they currently available to use now or to be requested up the chain now?



[Cross Talk]



DI RITA: The document’s classified. We don’t talk about individual techniques. Just because they leak, doesn’t mean we talk about them. We were forced to talk about them in the case of the leaked documents to the Taguba Reports.



Q: These were some of the techniques that were supposedly exported to Iraq?



DI RITA: Nothing was exported to Iraq. Iraq, as General Sanchez developed guidance, based on a variety of inputs, including suggestions made in accordance with standard techniques being used in Guantanamo, there was one aspect of the many things he looked at. But we’re simply not in a position to talk about individual techniques.



SEN. OFFICIAL: I believe it is fair to address the issue raised in a little more depth by pointing out that the document that the secretary of defense finally approved is fully consistent with international law. Most of the items you mentioned would not be.



Q: Would not?



SEN. OFFICIAL: Would not be.



[Cross Talk]



Q: Well, if it is fully consistent, why can’t you share it? Why is [Inaudible] classified?



SEN. OFFICIAL: Because the document itself is classified.



Q: Wait a minute. You know, General Alexander when he briefed us last Friday and, again, yesterday Colonel Warren (sp) looking at that list on the right that he just read from said those items are consistent with international law, if applied one by one. Now, is the view you just expressed reflective of the fact that there is this disagreement in the military legal community?



SR. DEF. OFFICIAL: Well, I don’t think either one of us here expressed legal opinions about anything in particular. Right now we’re talking about the background, about the process. And I…



Q: But your view is that, though, [Inaudible] are not consistent [Inaudible]?



SEN. OFFICIAL: I said the items the secretary approved are consistent. The item in his final document for interrogations…



[Cross Talk]



Q: [Inaudible] the items that he arranged.



SEN. OFFICIAL: I said some of the items that he raised.



[Cross Talk]



SEN. OFFICIAL: And some of those are on [Inaudible].



DI RITA: But it is very important to remember that these are all items that would be developed in accordance with a plan. And the plan would say how they’d be used and then it would have to be approved. So there’s a perception that that was sort of a list that was posted on a door and any interrogator can go in and do anything they want, as long as it was on that list and it’s just…



Q: But those…



DI RITA: … wrong [Inaudible].



Q: …techniques were available to be requested for use on prisoners in Iraq?



DI RITA: Some of them apparently were – that’s right – for a period of time.



Q: Are all of those?



DI RITA: Yeah, for a period of time, until they were [Inaudible].



Q: Until last week?



DI RITA: Until General Sanchez [Inaudible]. Apparently, that’s correct.



[Cross Talk]



Q: I’m just asking if that same range of techniques is available for use in Guantanamo?



DI RITA: I think as far as we’re prepared to go. I mean, we’re trying to give you a better sense of the genesis of the standard operating procedures in Gitmo and also take on this issue of, well, there were some people who were dissatisfied. Consensus means nobody walks away having gotten everything they wanted. And the document that was developed and those procedures that were found was a consensus document.



Q: But Larry, aside from the fact that, you say these a different types of prisoners, that these people are enemy combatants and the other people are treated strictly as prisoners of war.



DI RITA: No, no. That’s not the case. They’re prisoners of war.



Q: Wait a minute.



DI RITA: In Iraq, there’s a variety of detainees.



Q: You’re perfectly willing to say in Iraq, no, we’re not going to use dogs on those people. Right? But in Gitmo, what you’re saying is, look, we just can’t discuss whether we use dogs. Why won’t you just come out and say we won’t use dogs on those people?



DI RITA: Charlie, we’re not going to



[Cross Talk]



DI RITA: We’re not talking about the procedures in Guantanamo. We’re talking about a process by which it was developed that people were satisfied was fair and consistent with international standards. And that’s what we’re talking about.



[Cross Talk]



Q: [Inaudible] process.



DI RITA: And then I’ve got to go because I’m out of time.



Q: If you agree that everyone in Iraq that’s under detention is subject to the Geneva Conventions and everybody in Guantanamo is treated as if they were subject to the Geneva Conventions, why was it necessary to make a distinction between the techniques that could be used in Guantanamo which sound like they’re much broader than those that can be used in Iraq?



SR. DEF. OFFICIAL: The secretary of defense’s order about the treatment of unlawful combatants in the global war on terrorism – and this is from the president – is that they shall be treated humanely and – and I’m not quoting here, because I don’t have it memorized but – consistent with [Inaudible] humanely and consistent with military necessity consistent with the principals of the Geneva Convention. Those are the instructions from the secretary of defense to the combatant commanders about treatment of the detainees in unlawful combatants in the global war on terror.



Q: When did interrogations begin in Gitmo?



[Cross Talk]



DI RITA: They were starting to receive detainees in Guantanamo probably in January of ’02.



Q: It sounded to me like what you said earlier. And my question was they’re not being treated the same, that there’s a lower standard for Guantanamo. I mean, it’s a different way of phrasing it, but you’re saying they’re treated consistent with the principals of the Geneva Convention, but obviously not exactly the same?



SR. DEF. OFFICIAL: There’s a different legal regime that applies to the two. In the conflict with Iraq, there is absolutely no question that the Geneva Conventions, the third and fourth Geneva Conventions apply, period. In the conflict with al Qaeda, the Geneva Conventions do not apply. And so the president has entrusted the secretary of defense and the secretary of defense has instructed his combatant commanders that for those people that the armed forces detain in the global war on terrorism that are unlawful combatants, that are not subject to the Geneva Convention, shall be treated humanely and consistent with military necessity, consistent with the principals of the Geneva Convention.



DI RITA: And that gets to the question of in Guantanamo you see that they’re being given religious appropriate meals, they’re being given opportunities to worship, they’re being given opportunities to exercise. I mean, that’s the humane treatment in the Geneva Convention or consistent with the Geneva Convention that we’re trying to be sure that we’re very careful about.



SEN. OFFICIAL: We’re almost out of time.



Q: Just a point of clarification. When you said earlier that the techniques that were approved by the secretary of defense were consistent with international law, but you didn’t say Geneva Conventions, did you mean the Geneva Convention? When you say – are you referring to some other convention?



DI RITA: Fully consistent with international law is what I said, which would include Geneva Conventions that would apply.



Thanks a lot, folks, in our continuing effort to try and provide information that you didn’t seek.



http://www.dod.mil/transcripts/2004/tr20040520-0788.html

Harsh legal lesson for Bush
By Jim Lobe

WASHINGTON - In a major defeat for US President George W Bush, the United States Supreme Court on Monday ruled that detainees captured in Bush's "war on terror" and detained at a US base in Cuba or in US territory have the right to challenge their detention in federal court.

In an 8-1 decision, the justices found that US citizens detained as "enemy combatants" were entitled to full due-process rights under the constitution, including the right to an attorney. In another 6-3 decision, the court ruled that foreign "enemy combatants" held at the US naval base in Guantanamo Bay, Cuba, have the right to go to court to argue that they should never have been detained.

The rulings amounted to an almost total rebuff of the administration's assertions that the president, as commander-in-chief, had the right to indefinitely detain individuals whom it designated "enemy combatants" without charges and without access to counsel or the right to review their status before an independent court.

"[Monday's] historic rulings are a strong repudiation of the administration's argument that its actions in the war on terrorism are beyond the rule of law and unreviewable by American courts," said Steve Shapiro, legal director of the American Civil Liberties Union. "The administration designed its war on terrorism in an effort to insulate its actions from judicial review, but the Supreme Court [Monday] clearly and overwhelmingly rejected that strategy," he added.

The Department of Justice, which represented the administration, said it would comment on the rulings only after a full review of the opinions issued by the court in what were four separate cases.

The court's rulings come at a time when Bush was already on the defensive over the controversy caused by the abuse of detainees at Abu Ghraib prison in Iraq. A series of internal administration memos that have come to light as a result of the scandal show that political appointees in the Justice Department, the Pentagon and the White House had argued that the president enjoyed virtually unlimited powers not only to detain suspected "enemy combatants" without affording them the full protection of the Geneva Conventions, but also to interrogate them in ways that could violate US laws prohibiting torture, as well as international treaties ratified by the US Congress, such as the Geneva Conventions and the United Nations Convention Against Torture.

These memos have drawn outrage from human rights groups and much of the US legal community, prominent members of which have charged that such sweeping assertions of the president's wartime powers are both unprecedented and patently unconstitutional.

The controversy began claiming victims last week when the Justice Department's solicitor-general, Ted Olson, announced his resignation, reportedly after complaining that he had not been informed about the memos. At the same time, Jack Goldsmith, head of the department's prestigious Office of Legal Counsel, which prepared one of the controversial memos, abruptly resigned at the same time.

The court's repudiation of the administration's powers to indefinitely detain US and foreign "enemy combatants" without review by independent courts is likely to further weaken the more-ideological legal forces within the administration.

While none of Monday's cases involved the treatment of detainees at Abu Ghraib, a number of analysts said that the scandal may very well have affected the sharp tone of some of the decisions.

In all, the court issued rulings in three cases - two that dealt with the rights of US detainees held as "enemy combatants", and one consolidated case that dealt with those of foreign detainees being held at Guantanamo.

In the case brought by an attorney on behalf of Yaser Esam Hamdi - a Louisiana-born Saudi who reportedly surrendered to the Northern Alliance in Afghanistan, was subsequently transferred to US custody as a suspected Taliban member, and has been detained in a military brig in South Carolina with no access to his family - the court ruled 8-1 that he had the right to both an attorney and to challenge his detention in court.

The majority opinion, written by Justice Sandra Day O'Connor, conceded that Congress gave the president the power to detain citizens in the war under "very limited circumstances", but went on to assert: "Due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker."

The court "made clear", she wrote, "that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

"By recognizing Mr Hamdi's right to challenge his detention in court with a lawyer, the court reaffirmed that the independent judiciary remains a very real check on presidential power - even over issues of national security," said Deborah Pearlstein, director of the US Law and Security program at Human Rights First (HRF).

In a second decision involving the fate of Jose Padilla, a US citizen who was arrested at Chicago's main airport two years ago on suspicion of plotting with al-Qaeda to detonate a radioactive device and also held in South Carolina, a majority of five justices sent the case back to a lower tribunal on a technicality. They said the case should have been filed in South Carolina, rather than in New York.

In light of the Hamdi decision, however, legal experts said that Padilla's case has probably been strengthened not only because, as a citizen, he will be entitled to the same rights as Hamdi, but also because the majority ruling indicated discomfort with whether Padilla could be considered an "enemy combatant" at all given that he was arrested far from any battlefield. They said the government will probably have to either charge him with a crime or release him.

In the Guantanamo case, which was brought by detainees from Kuwait, Australia and Britain, the court ruled 6-3 that foreigners seized as potential terrorists in Afghanistan and Pakistan and held at the US base in Cuba may have access to the federal courts to challenge their captivity.

Under the Geneva Conventions, prisoners of war are supposed to be guaranteed access to an independent tribunal to contest their detention, but the administration insisted that Taliban and al-Qaeda suspects would not receive formal given prisoner-of-war status.

Writing for the majority, however, Justice John Paul Stevens asserted that "aliens at the base, like American citizens, are entitled to invoke the federal courts' authority" to determine whether they are wrongly held.

Amnesty International applauded the decision and called for the administration to "quickly afford all detainees held by the US this fundamental right".

Reviewing the more than 100-year history of US control over the base, the majority also rebutted the administration's argument that Guantanamo was not subject to the jurisdiction of the US federal courts.

The majority's ruling is potentially far-reaching for at least two reasons. According to a recent investigative article by the New York Times, most of the more than 600 detainees still held at Guantanamo were low-level Taliban soldiers or even innocent bystanders who were caught up in military operations and have no intelligence value. Scores of detainees have already been repatriated, but Monday's decision could result in the government speeding up the process for the remaining detainees.

The ruling could also be used as the basis for new lawsuits by family members of other prisoners who are detained as suspected terrorists in some two dozen other overseas facilities under US control, including in Iraq, Afghanistan, Diego Garcia, Thailand, and aboard at least two US ships in the Indian Ocean, according to a recent HRF report.

"While Stevens tied the decision very much to the specific situation of Guantanamo," said Shapiro, "the door has been opened to potential claims by detainees being held elsewhere."

A habeas corpus case is directed at whoever has actual, as well as legal custody, of the detainee, he added, noting that the transfer of sovereignty to the interim government in Iraq Monday could affect custody of detainees who have been held by US forces there to date.

(Inter Press Service)


http://www.atimes.com/atimes/Front_Page/FF30Aa01.html

Is it the “Abu Ghraib Protection Act?”
Senate Measure Could Restrict Access to Crucial Information About Abu Ghraib
Scandal in DIA Files

Washington, D.C., October 6, 2005 - After failing in 2000, the Defense Intelligence Agency (DIA) is again seeking an exception from disclosure of vast quantities of important Defense Department records currently available under the Freedom of Information Act (FOIA). The exception would render records that document “the conduct of foreign intelligence or counterintelligence operations” of the DIA Directorate of Human Intelligence (HUMINT) unreachable to the public.

The provision currently is included in the Defense Authorization Bill (S. 1042) and the Intelligence Authorization Bill (S. 1803). The provision would allow the Director of the Defense Intelligence Agency to place the DIA’s “operational files” completely outside the purview of the FOIA. “The DIA tried this before and failed because it would protect records about death squads. Now it looks like the DIA wants to cover up records about Abu Ghraib,” commented the Archive’s director Thomas Blanton.

Would The Operational Files FOIA Exception Sought By The DIA Cover Up Records About Interrogation And Detention Practices At Abu Ghraib?
The DIA has produced many records in the FOIA law suit brought by the American Civil Liberties Union (ACLU) and other organizations concerning detention, interrogation and alleged torture at Abu Ghraib prison in Iraq. Some of these records concern DIA involvement in and witnessing of interrogation practices, i.e. “foreign intelligence [] operations.” Would these records become operational records if the FOIA exception sought by the DIA is enacted into law? Take a look:

http://www.aclu.org/torturefoia/released/120704.html (includes records concerning threats to DIA personnel who objected to abuse)
http://www.aclu.org/torturefoia/released/042005/ (records about DIA interrogation policy and investigation of allegations of abuse)

The Central Intelligence Agency Tried To Use Its Operational Files FOIA Exception To Indefinitely Delay Disclosure Of Records About Abu Ghraib.

After Federal District Judge Alvin K. Hellerstein issued an order in the ACLU law suit requiring government agencies to search and review their files for records, the CIA sought to indefinitely postpone search of its operational files for relevant records. Judge Hellerstein rejected the effort because the CIA Inspector General itself already had commenced an investigation into wrongdoing and thus the administrative burden of searching operational files would not be too significant.

http://www.aclu.org/Files/OpenFile.cfm?id=17434 (Decision of Judge Hellerstein)

The DIA Asked Congress In 2000 For Operational Files FOIA Exception; It Was Rejected By Congress Because It Would Shield Important Records Concerning Human Rights Practices Abroad.

The DIA releases under FOIA many important operational records, which are either unclassified to begin with or have been declassified. For example, the DIA service provides the defense attaches stationed in U.S. embassies around the world. Like Foreign Service officers at the embassies, these military attaches operate openly and collect and report foreign intelligence information. They do not operate undercover like overseas CIA employees. The Defense HUMINT Service, unlike the Directorate of Operations at the CIA, collects much of its information through open sources rather than through the kind of clandestine intelligence sources which must be so closely guarded at the CIA. Indeed over the years, the DIA has routinely declassified and released hundreds of documents including intelligence reports, which have been important to public debate and the historical record. (Of course, sensitive information that must be protected for national security reasons is already exempt from the disclosure requirements of the FOIA.). Because these records include crucial information about human rights violations committed by foreign military and intelligence units and other important information about political and military developments around the world, Congress rejected DIA’s effort in 2000. Nothing has changed that would justify the exception today.

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB34/index.html

Operational Files Exceptions Have Been Abused By Agencies to Shield Non-Sensitive Information.

The National Reconnaissance Office (NRO) received an operational files exception in 2002 (without any public hearings or debate) that exempted from disclosure and review only files “that document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems.” (50 U.S.C. § 432a.) Although a plain reading of the statutory exception would suggest that it would be limited to those files that detail the technical means through which the NRO collects foreign intelligence or counterintelligence, the NRO has broadly interpreted the exception to include “overall program management, policy, and analysis files,” “budget and finance records files,” “contracting, procurement and logistics records files,” and “legal files,” among others. (NRO Operational File Designation List). This certainly cannot be what the Congress intended when it granted the exception.

For other examples of abuse of operational file exceptions see “Spy Agencies Abuse Freedom of Information Act Exemptions, But Congress May Grant New One to Intercepts Agency.”

http://www.gwu.edu/~nsarchiv/news/20051006/index.htm

For Immediate Release:
June 11, 2003
For more information contact:
Tom Blanton 202/994-7000
Meredith Fuchs 202/994-7000

SPY AGENCIES ABUSE FREEDOM OF INFORMATION EXEMPTIONS,
BUT CONGRESS MAY GRANT NEW ONE TO INTERCEPTS AGENCY

Proposed FOIA Exemption Would Provide National Security Agency
With Virtually Unchecked Power to Keep Records Secret



Washington, D.C., June 11, 2003 - The Congress is poised to give the National Security Agency a free pass from complying with the Freedom of Information Act for any NSA "operational" files, even though NSA has failed to demonstrate a need for the exemption and the Central Intelligence Agency and the National Reconnaissance Office are abusing similar provisions previously granted by Congress.

The proposed FY 2004 Defense and Intelligence Authorization Acts pending in Congress each include a provision that would, for the first time in the Freedom of Information Act's (FOIA) 37-year history, exempt the operational files of the National Security Agency from the FOIA. These proposed new FOIA exemptions have moved through the legislative process with little inquiry into whether they are needed and with little concern about the three different explanations that have been offered by the National Security Agency to three different audiences. See NSA's Three Justifications. The ease with which the proposal has passed through the congressional committees is due in large part to the fact that three other intelligence agencies, the Central Intelligence Agency (CIA), the National Imagery and Mapping Agency (NIMA) and the National Reconnaissance Office (NRO), already have similar exemptions from the FOIA. Yet the NSA proposal is potentially broader in both its purpose and its application. See Side By Side Comparison of Operational File Exemptions; May 16, 2003 Letter to NSA General Counsel.

More troubling still, in recent months both the CIA and the NRO have applied their FOIA exemptions well beyond the bounds that were authorized by Congress. The rationale for the exemptions is that so-called operational files - which, in the case of the NRO, are limited to records that describe scientific and technical means of surveillance - include information that would not ever be releasable under the FOIA. With no consideration for these limitations, the NRO has refused to search for records that were released with only partial redaction in response to a 1992 FOIA request and that discuss a wide range of historical and organizational matters:

Report to the President's Foreign Intelligence Advisory Board on the National Reconnaissance Program, January 1 to June 30, 1967
Report to the 40 Committee on the National Reconnaissance Program, July 1, 1970 to June 30, 1971
To the extent the records do address the "technical" or "scientific" means of surveillance, the records relate to obsolete, declassified technology such as the CORONA satellite system.

The NRO also appears to have determined that all of its NRO Directives should be maintained as operational files, causing them to refuse to search for requested Directives. Among those that the NRO has categorized as operational are:

NROD 50-1 "Executive Order 1233 - Intelligence Activities Affecting United States Persons" (24 July 1998)
NROD 120-4 "National Reconnaissance Pioneer Recognition Program" (2 March 2000)
These records were previously released to another FOIA requester, so it is possible to review the documents categorized as operational files and determine that they do not concern the type of scientific and technical information that is protected by the FOIA exemption. The NRO FOIA exemption was enacted in 2002.


Similarly, the CIA - whose exemption is limited to protecting source and method information concerning the conduct of foreign intelligence or counterintelligence operations and the means of intelligence or counterintelligence collection through scientific and technical systems - has refused to search for histories of long obsolete and declassified CIA operations. One of the documents that the CIA refused to search for relates to covert operations not the collection of intelligence or counterintelligence, and was previously made available for review by author Evan Thomas during his research for the book The Very Best Men, (Simon & Schuster 1995) (Author's Note at 345):

CSHP 335: Covert Action Operations: Soviet Russia Division, 1950-1968
In addition, the CIA refused to search for:

"History of Office of Special Activities from Inception to 1969," DDS&T Historical Series, OSA-1, (April 1, 1969) (Request No. F-1994-01452 (appeal denied July 16, 2002)); and
Elizabeth Fisher, "History of the Office of ELINT to December 1966" (1968) (Request No. F-1994-01561 (appeal denied July 16, 2002)).
The CIA already has made authorized public disclosures revealing details of information concerning the subjects of the two histories. Yet, the CIA refuses even to search for the records, citing the protection afforded its operational files as the basis for the denial.

The House Permanent Select Committee on Intelligence is scheduled to mark up the provision in the proposed FY 2004 Intelligence Authorization Act tomorrow, Thursday June 11, 2003. Different versions of the proposed exemption also appear in the proposed FY 2004 Defense Authorization Act, which has passed the House and Senate and will be the subject of a conference between members of the Senate and House Armed Services Committees. Another version of the exemption appears in the proposed FY 2004 Intelligence Authorization Act, which has been marked up by the Senate Select Committee on Intelligence and passed by the Senate.


•

The National Security Agency's Three Justifications for the Proposed Operational Files Exemption

NSA provided the first explanation for the proposed new FOIA exemption for operational files as proposed report language:

Section by Section Analysis

In response to concerns raised by the National Security Archive and other organizations, during the week of May 12, the NSA provided the following subsequent explanation for the proposed new FOIA exemption for operational files:

Statement of an NSA spokesperson (provided May 15, 2003)


The NSA provided yet a third explanation that week in response to questions raised in Congress about the proposed new FOIA exemption for operational files:

Proposal for Exemption from the Freedom of Information Act
for Operational Files (13 May 2003)

http://www.gwu.edu/%7Ensarchiv/news/20030611/

Updated - July 13, 2004

The Interrogation Documents:
Debating U.S. Policy and Methods



Dec 2, 2002 - Memo from the Department of Defense summarizing approved methods of interrogation, with annotation from Secretary of Defense Donald Rumsfeld

"All of those up and down the chain of command who bear any responsibility must be held accountable for the brutality and humiliation they inflicted on the prisoners and for the damage and dishonor that they brought to our nation and to the United States armed forces, which is otherwise filled with honorable men and women acting with courage and professionalism to bring stability and security and reconstruction to Iraq."

-- Senator Carl Levin (D-Mich), Senate Armed Services Committee Hearing May 11 2004

"There must be a full accountability for the abuse of Iraq detainees and important questions must be asked of the chain of command to understand what happened, how it happened, when it happened and how those in positions of responsibility either ordered, encouraged or authorized -- or maybe looked the other way -- such conduct."

-- Senator John Warner (R-Va), Senate Armed Services Committee Hearing May 19 2004


On June 22, 2004, the White House officially released 14 documents originating from the White House, the Pentagon and the Justice Department concerning the Administration's interrogation policies. These records include only one that previously was published by news media sources, and did not include at least 5 additional documents widely reported in the news media and already made available to the public by the news media concerning interrogation policies from the White House, Pentagon, Justice Department and Department of State. Still other records are reported to exist or referenced in the already released materials, but have not been made available -- either officially or unofficially -- to the public. This Electronic Briefing Book includes a comprehensive listing of available records relating to U.S. interrogation policies, including records officially released by the White House and the Department of Defense on June 22, leaked documents that have not been officially released, and a description of 17 records that have not been made available to the public. In addition, this posting includes the text of a congressional subpoena proposed by Senators Leahy and Feinstein that was defeated on June 17, 2004 by the Senate Judiciary Committee and a copy of the "Taguba Report" detailing the findings of a Department of Defense investigation into the treatment of prisoners at Abu Ghraib Prison in Iraq.

WHITE HOUSE RELEASE

The documents included in the June 22 White House release were described by White House Counsel Alberto Gonzales as "two distinct sets of documents, those that were generated by government lawyers to explore the limits of the legal landscape as to what the Executive Branch can do within the law and the Constitution as an abstract matter; you also have documents that reflect the actual decisions issued by the President and senior administration officials directing the policies that our military would actually be obliged to follow." Press Briefing, June 22, 2004.

On June 8, 2004, the Senate Judiciary Committee held a hearing concerning the role of the Justice Department in the interrogation debates. During the hearing, members of the committee asked Attorney General John Ashcroft about the content and status of Justice Department and Pentagon memos which have not been officially released. Ashcroft repeatedly refused to turn the memos over to the committee, saying "The president has a right to receive advice from his attorney general in confidence, and so do other executive agencies of government. And this does not mean that there can't be debate on such topics. It just means that the private advice that the president gets from his attorney general doesn't have to be a part of the debate."

At a press conference two days later, President Bush was asked about the Justice Department memos giving him authority to allow any method of interrogation. He responded, "The authorization I issued was that anything we did would conform to U.S. law and would be consistent with international treaty obligations. That's the message I gave our people… I can't remember if I've seen the memo or not, but I gave those instructions."

Jan 22, 2002 - Department of Justice memo to White House and Defense Department Counsels regarding the application of the War Crimes Act and the Geneva Conventions

The 37-page memo, written by Assistant Attorney General Jay S. Bybee, is addressed to White House Counsel Alberto R. Gonzales and General Counsel at the Pentagon William J. Haynes II. The memo states that President Bush is not bound by international obligations to Afghanistan because it is a "failed state," and that therefore the War Crimes Act of 1984 and the Geneva Convention do not apply to prisoners from the Afghanistan conflict.
[The memo was released on June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

Feb 1, 2002 - Department of Justice memo to President Bush reiterating position against the application of Geneva Convention to al Qaeda and the Taliban

The memo, written by Attorney General John Ashcroft, summarizes the position of the Justice Department on why the Geneva Convention does not apply to al Qaeda or Taliban prisoners. Ashcroft warns against the possibility of U.S. officials being subject to prosecution for violating U.S. and international laws if the Geneva Conventions are applied.
[The memo was released on June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

Feb 7, 2002 - Department of Justice memo to the White House Counsel on the status of Taliban combatants

The then Head of the Office of Legal Counsel at the Justice Department, Assistant Attorney General Jay S. Bybee, states the Department's conclusion that the President "has reasonable factual grounds" to determine that members of the Taliban captured in Afghanistan are not entitled to prisoner of war (POW) status under the Geneva Convention.
[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

Feb 7, 2002 - Memo from President Bush to his national security advisors concerning the application of Geneva Convention in the Afghanistan conflict

In the memo, President Bush states his belief that he has "the authority under the Constitution" to determine that the Geneva Convention does not apply to the conflict in Afghanistan, but that he will "decline to exercise that authority at this time." In accordance with the position of the Department of Justice, he determines that the Geneva Convention on the Treatment of Prisoners of War does not apply to members of the Taliban and al Qaeda.
[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

Feb 26, 2002 - Department of Justice memo to the Defense Department General Counsel on the constitutional issues related to detainees from the Afghanistan conflict

In a memo to General Counsel William J. Haynes II, Assistant Attorney General Jay S. Bybee examines possible legal constraints on the interrogation of Afghanistan prisoners, including whether statements made during interrogations are admissible in military commissions and whether individuals being interrogated will be prosecuted.

[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

Aug 1, 2002 - Department of Justice memo to White House Counsel stating that interrogation methods used on al Qaeda prisoners comply with international treaties prohibiting torture

The memo, written by Deputy Assistant Attorney General John C. Yoo of the Office of Legal Counsel, advises White House Counsel Alberto R. Gonzales that techniques used to interrogate members of al Qaeda would not violate the Torture Convention of 1984, and that such interrogations were not within the jurisdiction of the International Criminal Court.

[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

Aug 1, 2002 - Department of Justice memo to the White House Counsel regarding the definition of torture

The memo from Assistant Attorney General Jay S. Bybee to White House Counsel Alberto Gonzales examines the definition of torture under the 1984 Torture Convention and its applicability to interrogations outside of the United States. The Office of Legal Counsel concludes that physical pain constituting torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The memo also finds that the torture of suspected terrorists for interrogation purposes might be legally defensible.

[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

Dec 2, 2002 - Memo from the Department of Defense summarizing approved methods of interrogation

The memo on "Counter-Resistance Techniques" was written by the Defense Department's General Counsel, William J. Haynes II, and later approved by Secretary of Defense Rumsfeld. It sets out specific techniques for interrogation that can be used on detainees at the U.S. detention center at Guantanamo Bay, Cuba.

A related memo issued on June 22, 2004, by White House officials reviews the specific methods which were approved and used.
[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

Jan 15, 2003 - Department of Defense memo from Secretary of Defense Rumsfeld to the head of U.S. Southern Command on specific interrogation techniques

The memo from Secretary of Defense Rumsfeld withdraws his approval for some interrogation techniques used on detainees at Guantanamo Bay. Secretary Rumsfeld allows for the use of harsher tactics only if "warranted in an individual case" and explicitly approved by him.

[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

Jan 15, 2003 - Memo from Secretary of Defense Rumsfeld to Defense Department Counsel regarding a review of interrogation policies

The memo from Secretary of Defense Rumsfeld to Counsel William J. Haynes requests the creation of a working group "to assess the legal, policy, and operational issues relating to the interrogations of detainees."
[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

Jan 17, 2003 - Department of Defense memo to the General Counsel for the Air Force regarding the review of interrogation policies

The memo from Defense Department Counsel William J. Haynes designates Mary Walker, General Counsel for the Air Force, as the chair of the working group requested by Secretary of Defense Rumsfeld to assess U.S. policies toward interrogation.

[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

April 4, 2003 - Working Group Report from the Defense Department on interrogation methods

The 85-page classified report, prepared for Secretary of Defense Rumsfeld, reviews the "legal, historical, police and operational considerations" regarding interrogations of detainees in the war on terrorism. The report provides recommendations to the Secretary of Defense on which interrogation techniques should be approved. It also outlines U.S. laws and international treaties concerning torture and discusses how national security concerns or legal technicalities could overcome such restrictions. The report states that, as commander-in-chief, President Bush is not bound by domestic or international laws prohibiting torture and that government agents who might have used torture under his direction can not be prosecuted by the Justice Department.
[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]

An earlier draft of the report was referenced by The Wall Street Journal and made available by The Wall Street Journal on June 7, 2004. The draft, dated March 6, 2003, lacks several pages included in the version officially released on June 22, 2004: Pages 29-30, 34, 46, 49, 54-71, as well as the appendices on interrogation techniques and recommendations. Sections from pages 7, 8, 26, 39, 41, and 42 have also been omitted or rewritten.

Apr 16, 2003 - Department of Defense memo from Secretary of Defense Rumsfeld to the Head of the U.S. Southern Command regarding approved interrogation methods

The memo restates the specific techniques of interrogation which have been approved by the Secretary of Defense for use on detainees at the U.S. detention facility at Guantanamo Bay. It identifies additional measures which require Secretary of Defense Rumsfeld's explicit approval.
[Released June 22, 2004. Obtained from The Washington Post website at www.washingtonpost.com.]



DEPARTMENT OF DEFENSE RELEASE

The following nine documents relate to the development of interrogation procedures at the U.S. military detention facility in Guantanamo Bay, Cuba, and were released by the Department of Defense on June 22. Five of these records were also released by the White House on the same day. According to the Department of Defense press release, the documents were being "made available to demonstrate that the actions of the U.S. Defense Department are bound by law and guided by American values." The documents date from January 2002, when detainees were first brought to Guantanamo, and pertain primarily to the development of interrogation techniques at the facility through April 2004. Press Release, June 22, 2004.

The following four documents were released by the Department of Defense on June 22 but were not part of the White House release the same day.

Jan 19, 2002 - Secretary of Defense Memo for Combatant Commanders, "Status of Taliban and Al Qaida"

Secretary of Defense Donald Rumsfeld determines that Al Qaida and Taliban detainees "are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949." However, detained individuals are to be treated "humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949."

Jan 21, 2002 - Message from Chairman, Joint Chiefs of Staff to Unified Commands and Services, "Status of Taliban and Al Qaida"

This message transmits the secretary of defense determination of Jan 19 to military combatant commanders.

Oct 11, 2002 - Memo for Commander Joint Task Force 170, "Counter Resistance Strategies"

This memo requests authorization from the U.S. Southern Command chief of a set of interrogation techniques described in an attached memo. A second cover memo indicates that these techniques have passed the legal review of Guantanamo's staff judge advocate. The "Counter Resistance Strategies" document lists three categories of increasingly severe interrogation methods. The commander of Task Force 170, Maj. Gen. Michael Dunlavey, believes that the procedures outlined in the memo "will enhance our efforts to extract additional information."

Oct 25, 2002 - SOUTHCOM’s endorsement of the CJTF-170's request

Noting that "some detainees have tenaciously resisted our current interrogation methods," U.S. Southern Command chief James T. Hill recommends the adoption of the interrogation techniques in the first two categories of techniques described in the "Counter Resistance Strategies" memo attached to the Oct 11 memo above. However, Gen. Hill is "uncertain whether all the techniques in the third category are legal under U.S. law" and requests further legal review of these methods. Category three techniques include threats against detainees' families, actions intended to simulate suffocation, exposure to cold weather or water, and the use of "mild, non-injurious physical contact."

The following five documents were released by both the Deparment of Defense and the White House on June 22. Summaries of these documents are included above in the "White House Release" section.

Dec 2, 2002 - Memo from the Department of Defense summarizing approved methods of interrogation

Jan 15, 2003 - Department of Defense memo from Secretary of Defense Rumsfeld to the head of U.S. Southern Command on specific interrogation techniques

Jan 15, 2003 - Memo from Secretary of Defense Rumsfeld to Defense Department Counsel regarding a review of interrogation policies

April 4, 2003 - Working Group Report from the Defense Department on interrogation methods

Apr 16, 2003 - Department of Defense memo from Secretary of Defense Rumsfeld to the Head of the U.S. Southern Command regarding approved interrogation methods



LEAKED DOCUMENTS NOT INCLUDED IN THE WHITE HOUSE RELEASE

The following records were leaked to the news media and have been widely reported and made available to the public by various news media sources. These records were not included in the June 22 White House release.

Dec 28, 2001 - Department of Justice memo to the Defense Department with regard to the U.S. jurisdiction over Guantanamo prisoners

The memo, written by lawyers Patrick F. Philibin and John Yoo of the Office of Legal Counsel, concludes that the U.S. does not have jurisdiction over habeas petitions of detainees in Guantanamo Bay, Cuba. The memo states that federal courts cannot review cases of mistreatment or mistaken arrest from prisoners in Guantanamo Bay because the detainees are being held outside U.S. territory.
[Referenced in "Double Standards?" by Michael Isikoff, Newsweek, May 25, 2004. Obtained from the Newsweek website at www.newsweek.com.]

Jan 9, 2002 - Department of Justice memo concerning the bearing of international laws prohibiting torture on President Bush and the U.S. military

The memo, entitled "Application of Treaties and Laws to al Qaeda and Taliban Detainees," was written by lawyers John Yoo and Robert J. Delahunty. It states: "Any customary international law of armed conflict in no way binds, as a legal matter, the President or the U.S. Armed Forces concerning the detention or trial of members of al Qaeda and the Taliba." The memo concludes that suspected terrorist detainees can be prosecuted for violating these same laws: "We do not believe that these courts would lose jurisdiction to try members of al Qaeda or the Taliban militia for violations of the laws of war, even though we have concluded that the laws of war have no binding effect [obscured] on the President."
[Referenced in "Double Standards?" by Michael Isikoff, Newsweek, May 25, 2004. Obtained from the Newsweek website at www.newsweek.com]

Jan 25, 2002 - Memo from White House Counsel to President Bush opposing the application of Geneva Conventions to the conflict in Afghanistan

White House Counsel Alberto Gonzales states that as Chief Executive, President Bush has the authority to determine whether the Geneva Convention III on the Treatment of Prisoners of War (GPW) does or does not apply, and reiterates the position of the Office of Legal Counsel of the Justice Department that it does not. The position is justified, Gonazales writes, by the status of Afghanistan as a failed state that is unable to fulfill its international obligations and the "militant, terrorist-like" nature of the Taliban and its forces.
[Referenced in "Memos Reveal War Crimes Warnings" by Michael Isikoff, Newsweek, on May 17, 2004. Obtained from the Newsweek website at

www.newsweek.com]

Jan 26, 2002 - Department of State memo from Colin Powell in response to the White House Counsel's position on the application of Geneva Conventions

The 5-page memo, addressed to the President's Counsel and the Assistant to the President for National Security Affairs, outlines the "options available" to the President in deciding the applicability of the Geneva Conventions to the Afghanistan conflict. Secretary Powell identifies numerous advantages for applying the Conventions, including providing "the strongest legal foundation" for future military action, preserving the "credibility and moral authority" of the U.S., and protecting American forces and officials from criminal investigations.
[Referenced in "Memos Reveal War Crimes Warnings" by Michael Isikoff, Newsweek, on May 17, 2004. Obtained from the Newsweek website at

www.newsweek.com]

Feb 2, 2002 - Department of State memo to the White House Counsel advising that the Geneva Conventions should apply

The 5-page memo from State Department Legal Advisor William H. Taft to Counsel Alberto Gonzales discusses the legal considerations surrounding the application of the Geneva Conventions, emphasizing the advantages of applying the Convention. An attachment to the memo outlines the positions taken by lawyers from the Department of Justice, Department of Defense, Department of State, the White House Counsel, and the Office of the Vice President.
[Referenced in "Documents Build a Case for Working Outside the Laws on Interrogating Prisoners" by Neil A. Lewis, New York Times, June 9, 2004. Obtained from The New York Times.]

On May 7, 2004, The Wall Street Journal published excerpts of a confidential report by the International Committee of the Red Cross on detention in Iraq. The 24-page report, dated January 2004 and submitted to Coalition Forces the following month, was based on inspections and interviews which took place from March to November 2003, including a visit to Abu Ghraib in mid-October. It concludes that abuse of Iraqi prisoners by U.S. military intelligence personnel was widespread and in some cases "tantamount to torture." According to the report, ICRC officials warned military intelligence officers of abuse at Abu Ghraib after witnessing mistreatment in the fall of 2003, but were told that harsh and brutal tactics were "part of the process" when trying to "obtain confessions and extract information." Overall, the report says ICRC investigations "suggested the use of ill-treatment against persons deprived of their liberty went beyond exceptional cases and might be considered a practice tolerated by" coalition forces.
-- Excerpts made available by The Wall Street Journal, "Red Cross Found Widespread Abuse of Iraqi Prisoners," 7 May 2004

March 12, 2004 - Report from Maj. General Antonio Taguba detailing the findings of a Department of Defense investigation into the treatment of prisoners at Abu Ghraib Prison in Iraq ("Taguba Report")

In January 2004 the senior U.S. commander in Iraq authorized an investigation of the conduct of the 800th Military Police Brigade, the unit in charge of detention and internment operations of detainees and other prisoners at Abu Ghraib prison in Baghdad. The report, prepared by Maj. General Antonio Taguba, sharply criticizes the unit for mistreatment of detainees at the facility, including various acts of physical, psychological and sexual abuse. The report also finds that interrogators from military and civilian intelligence organizations "actively requested" that personnel from the 800th MP Brigade "set the physical and mental conditions for favorable interrogation of witnesses." [Referenced in "Torture at Abu Ghraib" by Seymour Hersh, The New Yorker, April 30, 2004]

"At the end of the day, a few soldiers and civilians conspired to abuse and conduct egregious acts of violence against detainees and other civilians outside the bounds of international law and the Geneva Convention. Their incomprehensible acts, caught in their own personal record of photographs and video clips, have seriously maligned and impugned the courageous acts of thousands of U.S. and coalition forces. It puts into question the reputation of our nation and the reputation of those who continue to serve in uniform, and who would willingly sacrifice their lives to safeguard our freedom."
-- General Antonio Taguba, Senate Armed Services Committee hearing May 11 2004



17 ADDITIONAL RECORDS THAT HAVE NOT BEEN RELEASED

"The stonewalling in the prison abuse scandal has been building to a crisis point. Yesterday, responding to public pressure, the White House has released a small subset of the documents that offers a glimpse into the genesis of this scandal. There are many items missing from this release, however, including all but three of the 23 items Judiciary Committee Democrats requested in the subpoena that was voted down by Republicans last week. Where are the 20 remaining documents? Perhaps the most ominous omission is the lack of any documents reflecting White House involvement in this issue since military action began in Iraq last year. The released documents do not include a single reference to the treatment or interrogation of detainees in Iraq, despite the heinous abuses at Abu Ghraib that we have all seen with our own eyes."
-- Senator Patrick Leahy (D-Ver), Floor Statement, June 23 2004

The following 16 records are included in a congressional subpoena proposed by Senators Leahy and Feinstein that was defeated on June 17, 2004 by the Senate Judiciary Committee:

1. Memorandum for Timothy E. Flannigan, Deputy Counsel to the President, from John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's authority to conduct military operations against terrorists and nations supporting them (Sept. 25, 2001);

2. Memorandum for Alberto Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Legality of the use of military commissions to try terrorists (Nov. 6, 2001);

3. Draft Memorandum for William J. Haynes, General Counsel, Department of Defense, from John Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Application of treaties and laws to al Qaeda and Taliban detainees (January 9, 2002);

4. Memorandum for John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, from James C. Ho, Attorney-Advisor, Office of Legal Counsel, Re: Possible interpretations of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (Feb. 1, 2002);

5. Memorandum for Daniel J. Bryant, Assistant Attorney General, Office of Legal Counsel, from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Swift Justice Authorization Act (Apr. 8, 2002);

6. Memorandum for General James T. Hill from Defense Secretary Rumsfeld, Re: Coercive interrogation techniques that can be used with approval of the Defense Secretary (Apr. 2003);

7. Memorandum from CJTF-7, Re: Applicability of Army Field Manual 34-52 and sensory deprivation (Sept. 10, 2003);

8. Directive of Lt. General Ricardo Sanchez entitled "Interrogation and Counter-Resistance Policy" (Sept. 12, 2003);

9. Memorandum from CJTF-7 on interrogations (Sept. 28, 2003);

10. Memorandum for MI personnel at Abu Ghraib, Re: Interrogation rules of engagement (Oct. 9, 2003);

11. Memorandum for Commander of MI Brigade from Lt. General Ricardo Sanchez, Re: Order giving military intelligence control over almost every aspect of prison conditions at Abu Ghraib with the explicit aim of manipulating the detainees' "emotions and weaknesses" (Oct. 12, 2003);

12. Memoranda for Review and Appeal Board at Abu Ghraib from Detainee Assessment Branch (Nov. 1, 2003 through Jan. 31, 2004);

13. Memorandum for MP and MI personnel at Abu Ghraib from Colonel Marc Warren, the top legal adviser to Lt. General Ricardo Sanchez, Re: New plan to restrict Red Cross access to Abu Ghraib (Jan. 2, 2004);

14. Memorandum for Superiors from Maj. General Antonio Taguba, Re: Results of investigation into the 800th MP Brigade's actions in Abu Ghraib (Mar. 12, 2004);

15. Memorandum from the Department of Justice, Re: Liability of interrogators under the Convention Against Torture and the Anti-Torture Act when a prisoner is not in U.S. custody.

16. Review, study, or investigation report by LTC Chamberlain, Re: State of prisons in Iraq (addressing the proportion of innocent people in the prisons and the release procedures for detained Iraqis).

The following document has been described in the news media, but has not been officially or unofficially released.

17. January 11, 2002 - State Department memo concerning the violation of international laws

In response to the Department of Justice memo of January 9, 2002, the Legal Advisor's office headed by William Howard Taft IV warns that any presidential actions that violated international law would "subject the United States to adverse international consequences in political and legal for a and potentially in the domestic courts of foreign countries."
[Referenced in "Double Standards?" by Michael Isikoff, Newsweek, May 25, 2004.]

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/index.htm

CIA Director Defends Detention Policy

By William Branigin
Washington Post Staff Writer
Tuesday, November 29, 2005; 1:06 PM



CIA Director Porter J. Goss defended the agency's "debriefings" of terrorist suspects, saying in an interview broadcast today that they yield "good results" but do not involve torture.

In the rare interview on ABC's "Good Morning America" program, Goss expressed some frustration about the Central Intelligence Agency's inability to penetrate terrorist sanctuaries in remote areas or cities abroad, and he said terrorist leaders such as Osama bin Laden and Abu Musab Zarqawi are going to great lengths to avoid detection. But he said the CIA knows more about the men than it is able to say.

Goss did not deny the existence -- reported earlier this month by The Washington Post -- of a secret CIA prison system overseas that has included sites in Eastern Europe. Asked why the United States needed secret prisons, Goss said: "We're fighting a war on terror. We're doing quite well in it. Inevitably, we are going to have to capture some terrorists, and inevitably, they are going to have to have some due process, and inevitably, that is going to happen, and it's going to be done lawfully and under all of the law and order and protections of due process that this country affords."

The comments came as Secretary of State Condoleezza Rice prepared for a trip to Europe next week in which concerns about the reported prison system are expected to come up. Yesterday, the European Union's justice commissioner, Franco Frattini, warned that he would call on the organization to suspend the voting rights of any EU member state found to have hosted a secret CIA prison in violation of EU human rights principles.

Human Rights Watch, a U.S.-based advocacy group, has reported that Poland and Romania appeared to be among the countries that have allowed the CIA to run covert detention centers on their territory. Officials from both countries have denied the allegations.

Poland is an EU member, while Romania has applied to join and hopes to be accepted in 2007.

Rice plans to visit Romania on her European trip, which also includes stops in Germany, Ukraine and Belgium, where she is scheduled to hold talks at the EU headquarters in Brussels.

In an interview published today in USA Today, Rice indicated she intends to remind Europeans that "we are fighting a war on terror" and that the United States must take certain actions "in order to protect not just ourselves but to protect others."

She added: "We haven't ever fought a war like this before. We've never fought a war before . . . where you can't allow somebody to commit the crime before you detain them, because if they commit the crime, then thousands of innocent people die."

In his interview with ABC, Goss said he was working to create "a leaner headquarters" with "a little less regulation" and "less red tape." The agency is "doing innovative things and putting people overseas in different ways than we've ever done before," he said. "It's a new game."

In response to a question from interviewer Charles Gibson, Goss said: "What I wish I knew more about now was how to penetrate into some of the sanctuary areas. They can be in harsh terrain that is hard to manage, or they can be in the heart of a city, in a ghetto or a slum area, where people don't regularly go and things can be going wrong. Knowing how to find those places and get in and penetrate them I think is going to be the hardest part of this business."

As for why the agency has not been able to find bin Laden or Zarqawi, Goss said: "Well, primarily because they don't want us to find them, and they're going to great lengths to make sure we don't find them. And I assure you we're employing a lot of efforts to find out where they are. And I don't want to get into the depth and the details, but we know a good deal more about bin Laden and Zarqawi and [top al Qaeda deputy Ayman] Zawahiri than we're able to say publicly."

Regarding torture, the CIA director said: "What we do does not come close because torture, in terms of inflicting pain or something like that, physical pain or causing a disability, those kinds of things that probably would be a common definition for most Americans, sort of, you know it when you see it, we don't do that because it doesn't get what you want."

He added: "We do debriefings because . . . the nature of our business is to get information. And we do all that. And we do it in a way that does not involve torture because torture is counterproductive."

Goss refused to discuss specific interrogation techniques. "What we do, as I said many times, is professional, is lawful, it yields good results, and it is not torture," he said.

Here is the Good Morning America Transcript