Tuesday, February 01, 2005

Chertoff (Another Problem?)

Posted 2005-01-28 11:13:00.0

Torture Scandal Explodes: Chertoff Advised CIA on Torture Methods of Prisoners
WASHINGTON, Jan. 28 - Michael Chertoff, who has been picked by President Bush to be the homeland security secretary, advised the Central Intelligence Agency on the legality of coercive interrogation methods on terror suspects under the federal anti-torture statute, current and former administration officials said this week.
Depending on the circumstances, he told the intelligence agency, some coercive methods could be legal, but he advised against others, the officials said.
Mr. Chertoff's previously undisclosed involvement in evaluating how far interrogators could go took place in 2002 and 2003 when he headed the Justice Department's criminal division. The advice came in the form of responses to agency inquiries asking whether C.I.A. employees risked being charged with crimes if particular interrogation techniques were used on specific detainees.
Asked about the interaction between the C.I.A. and Mr. Chertoff, now a federal appeals court judge, Erin Healy, a White House spokeswoman, said, "Judge Chertoff did not approve interrogation techniques as head of the criminal division."
She added, "We're not aware that anyone in the criminal division was involved in approving techniques because that responsibility would have belonged in the Office of Legal Counsel," another Justice Department unit.
One current and two former senior officials with firsthand knowledge of the interaction between the C.I.A. and the Justice Department said that while the criminal division did not explicitly approve any requests by the agency, it did discuss what conditions could protect agency personnel from prosecution.
Mr. Chertoff's division was asked on several occasions by the intelligence agency on whether its officers risked prosecution by using particular techniques. The officials said the C.I.A. wanted as much legal protection as it could obtain while the department sought to avoid giving unconditional approval.
One technique that C.I.A. officers could use under certain circumstances without fear of prosecution was waterboarding, in which a subject is strapped down and made to experience a feeling of drowning. Other practices that would not present any legal problems were those that did not involve the infliction of any pain, like tricking a subject into believing he was being interrogated by a member of a security service from another country.
But in other instances Mr. Chertoff opposed some aggressive procedures outright, the officials said. At one point, they said, Mr. Chertoff raised serious objections to other interrogation methods that he concluded would clearly violate the torture law. While the details remain classified, one method that he opposed appeared to violate a ban in the torture law against using a "threat of imminent death."
Mr. Chertoff and other senior officials at the Justice Department also disapproved of practices that seemed to be clearly prohibited, like death threats against family members, administration of mind-altering drugs or psychological procedures designed to profoundly disrupt a detainee's personality. It is not clear whether the C.I.A. or any other agency proposed these techniques.
But Mr. Chertoff left the door open to the use of a different set of far harsher techniques proposed by the C.I.A., saying they might be used under certain circumstances. He advised that they could be used depending on a number of factors like the physical condition of the detainee and medical advice as to how the person would react to some practices, the officials said.
In responding, Mr. Chertoff's division said that whether the techniques were impermissible depended on the standards outlined in an August 2002 memorandum from the Office of Legal Counsel that has since been disclosed and which defined torture narrowly. That memorandum, signed by Jay S. Bybee, then the head of the legal counsel's office, said that inflicted pain, for example, qualified as torture only if it was of a level equivalent to organ failure or imminent death.