Interrogators Left Out in the Cold

By David Ignatius
Friday, September 22, 2006

The White House and Senate GOP rebels finally cut a deal yesterday on rules for interrogation of terrorism suspects. That's good news for the CIA officers who need clear guidance about what's legal and what isn't. But the truth is, this collision could have been avoided if the administration had sought broader political and legal support for its secret program from the start, rather than leaving the CIA out in the cold to take the hits.

Since the CIA began what it calls the "High-Value Terrorist Detainee Program" in mid-2002, the administration has pushed CIA officers to use coercive interrogation techniques without giving them solid legal assurance that in doing so, they are not violating U.S. laws and treaty obligations. Indeed, it took the Justice Department nearly three years to provide a detailed legal opinion that the CIA program complied with U.S. and international law.

The legal history is nearly as secret as the program itself. But it's worth a careful look now, as the dust settles from the political brawl between President Bush and a trio of pro-military GOP senators, John McCain, John Warner and Lindsey Graham. As is so often the case with this administration, an earlier move to build bipartisan support could have averted the later crisis.

To understand the legal wrangling, you have to go back to March 2002, when an al-Qaeda operative known as Abu Zubaida was captured. The CIA crafted a program of aggressive interrogation techniques -- including some, such as "waterboarding," that would commonly be regarded as torture -- to get what one former CIA officer describes as "time-sensitive, threat-related information where lives hang in the balance."

From the outset the CIA officers wanted written assurance that what they were doing was legal. The Justice Department prepared an initial (and now infamous) August 2002 memo from Jay S. Bybee, head of the Office of Legal Counsel, with the chilling advice that techniques were permissible if they didn't produce pain equivalent to that caused by "organ failure, impairment of bodily function, or even death." The Bybee torture memo was withdrawn, but the Justice Department offered a broad assurance in 2002 that because the program would operate outside U.S. jurisdiction, at secret sites abroad, interrogators would not be subject to U.S. law. Justice officials also argued that because captives were illegal "enemy combatants," they didn't have protections under the Geneva Conventions. That didn't satisfy the CIA officers running the program, especially after the uproar over Abu Ghraib, so they pressed Justice for a more detailed written opinion. It finally arrived in spring 2005.

The real crunch came when McCain began pushing in mid-2005 for a law that would explicitly ban harsh interrogation methods. The initial response of some CIA officers staffing the program was to accept the McCain amendment, since Justice had ruled that the techniques they were using were legal. But Vice President Cheney preferred to fight McCain, and several months of bitter negotiation produced a legislative history that in CIA officers' minds removed any ambiguity -- McCain viewed the program as illegal under his new statute.

What came next remains murky, even to those most closely involved. Rep. Duncan Hunter, the chairman of the House Armed Services Committee, demanded an assurance that the McCain amendment wouldn't harm the CIA's anti-terrorism efforts. He received a letter of assurance from John Negroponte, the director of national intelligence, even though CIA officers had advised Negroponte that the amendment would undermine the existing program. Meanwhile, President Bush signed the law but appended a signing statement that said it didn't alter the president's inherent powers, which in Cheney's view included the right to authorize the program. The administration, in other words, wanted it both ways.

Without clear legal guidance, CIA officers suspended interrogations in December 2005. Pressure was brought on the head of the CIA's Counterterrorism Center, who oversaw the program. The White House asked if he could persuade his officers to resume interrogations under the old rules. "I can, but I won't. It will put my people at legal risk," the Counterterrorism Center director is said to have responded. In February he was fired from his post and soon retired from the agency.

The administration began tinkering with the program this spring, discarding some of the most extreme techniques, in an effort to make it comply with the McCain amendment.

What bothers CIA officers most is the politicians' expectation that they will break the law when it's really necessary -- expressed by McCain himself, who told Newsweek that in extreme situations, when thousands of lives might be at risk, "You do what you have to do." That's surely what most Americans believe. McCain and the White House should have agreed long ago on a clear legal framework for the CIA officers asked to do the dirty work.

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