By R. Jeffrey Smith
Washington Post Staff Writer
Saturday, September 16, 2006
President Bush's push this week for legislation that narrowly defines U.S. obligations under the Geneva Conventions is motivated by his aides' conviction that the CIA must continue using a small number of highly controversial interrogation techniques on suspected terrorists, according to current and former U.S. officials. These methods include some that cause extreme discomfort and have been repudiated by other federal agencies.
The nature and legitimacy of these coercive techniques is the largely unpublicized subtext of the legislative dispute that has erupted between the administration and its opponents on Capitol Hill, including lawmakers from both parties who have said privately that they find some of the CIA's past interrogation methods abhorrent.
On the surface, Bush's proposal requires that interrogations in the previously secret CIA prison system comply with legal rules written by Congress last year. Privately, the administration has concluded that doing so would allow the CIA to keep using virtually all the interrogation methods it has employed for the past five years, the officials said.
That conclusion is based on an unpublicized memo to the CIA from the Justice Department's Office of Legal Counsel, which named the precise interrogation methods the department believed to be sanctioned by last year's broadly written congressional requirement that no U.S. detainees "shall be subject to cruel, inhuman or degrading treatment or punishment" as those terms are defined in U.S. laws.
The officials said the CIA and the White House are convinced that retaining access to these methods is key to extracting information from captured terrorism suspects who have urgently needed information about dangerous plots.
Congressional critics of this position have some support from within the government: Neither the FBI nor the Defense Department allows the use of the CIA's harshest techniques, and last week senior Pentagon officials said they believe that more cooperative forms of interrogation produce better results than inflicting extreme discomfort.
But the CIA feels differently. A memo sent by CIA Director Michael V. Hayden to the agency's employees Thursday approvingly quoted Bush's endorsement of the CIA interrogations for "defending the homeland, attacking [al-Qaeda] . . . and saving thousands of American and allied lives." Hayden said in the memo that the clarifying language of the administration's bill would give him confidence that what he "asked an Agency officer to do under the program is lawful."
The rival Senate bill on interrogations -- approved by the Armed Services Committee on Thursday and sharply criticized by Bush yesterday -- is silent on how the CIA should comply with the Geneva Conventions. Its intent, according to several government officials, is not only to avoid sending a signal to other nations that Washington is reinterpreting its treaty obligations, but to leave in place a historic understanding of international law, which would render unlawful many of the extreme interrogation techniques the CIA has been using.
Bush and other senior officials have not discussed what those methods include, but the president described them as an "alternative set of procedures," emphasizing that they differ from those used elsewhere in the government.
At a news conference yesterday, Bush alluded to these special methods when he said the new legislation was needed to provide "intelligence professionals with the tools they need." One well-informed source said the techniques include prolonged sleep deprivation and forced standing or other stress positions. Another source said they match the techniques used by the agency in the past, but with a notable exception: The CIA no longer seeks to use a notorious technique called "waterboarding," which is meant to simulate drowning.
A senior administration official, authorized to speak with reporters about the legal issues behind the administration's strategy yesterday on the condition that he not be named, said the CIA interrogations at issue are in "the gray area on the margins -- that ill-defined boundary -- of Common Article 3." He was referring to a Geneva Conventions provision that bars cruel, humiliating and degrading treatment, as well as "outrages upon personal dignity."
There are ironies in the positions of each side in the current dispute. The administration says its intent is to define the explicit meaning of Common Article 3 so that CIA officers know exactly what they can do. But the senior official who addressed the legal issue yesterday said the standard the administration prefers is "context-sensitive," a phrase that suggests an endlessly shifting application of the rules.
The reason is that the administration's language would in effect ban only those interrogation techniques that "shock the conscience." That phrase, drawn from a judicial interpretation of the U.S. Constitution, is a "flexible" standard, the official said. Others have said that standard would allow interrogators to weigh how urgently they felt they needed to extract information against the harshness of their techniques, instead of following rigid guidelines.
The official did not try to explain how embracing such an inherently flexible standard would actually create clarity, the watchword of the administration's public campaign for its version of the bill.
Another irony lies in the fact that the congressional rules for interrogations that the Bush administration now seeks to embrace in the new legislation -- the Detainee Treatment Act of 2005 -- were vigorously opposed by the White House before their adoption by Congress. Bush disliked them so much that when he signed the law Dec. 30, he appended a statement objecting to some of its provisions and explicitly reserved his right to interpret them "in a manner consistent" with his constitutional authorities as president and commander in chief.
In another twist, the principal Republican lawmakers responsible for the Detainee Treatment Act -- Sen. John McCain (R-Ariz.) and Sen. Lindsey O. Graham (R-S.C.) -- said last year that they meant the law to set a minimum, humane standard of treatment for detainees held by both the Defense Department and the CIA. But they now are telling colleagues it would be a bad law for the CIA to follow in the future because its language would slight international treaty obligations.
A retired intelligence professional who said he has discussed the matter at length with colleagues said the predominant view at the agency is that McCain -- who made clear in congressional debate last year that he disapproved of what the CIA was doing -- was surprised to learn later that the Detainee Treatment Act did not put a stop to it.
His bill "did not formally disallow anything that was being done," the source said. Now, he said, McCain "is not going to let the practitioners off the hook."
Staff writer Spencer S. Hsu and staff researcher Julie Tate contributed to this report.