By Karen DeYoung
Washington Post Staff Writer
Tuesday, June 19, 2007
Eight months after President Bush signed a bill authorizing the CIA to resume using "enhanced interrogation techniques" on terrorism suspects, the administration has been unable to agree on what constitutes "humiliating and degrading treatment" of detainees.
The CIA program remains in limbo, awaiting an executive order about the techniques that has become the subject of tense discussions within the administration and between the White House and the Senate Select Committee on Intelligence.
The issue is expected to receive a rare public airing today as the committee holds a confirmation hearing for John A. Rizzo, nominated by Bush in March 2006 as the CIA's legal counsel. Senators plan to ask Rizzo, a 30-year CIA veteran who is serving as acting counsel, about his involvement in past interrogation policymaking as well as the pending guidelines.
The CIA months ago promulgated a proposed list of interrogation guidelines, reportedly jettisoning some of the more controversial techniques authorized in the past such as simulated drowning, a practice known as "waterboarding." CIA Director Michael V. Hayden has provided lawmakers with a detailed briefing on the guidelines.
Under a provision of the Military Commissions Act he signed last October, Bush must provide an interpretation of a key provision of the international Geneva Conventions and certify that the CIA, while given wider latitude than military interrogators, does not use methods that constitute what the provision calls "outrages upon personal dignity, in particular humiliating and degrading treatment."
"It is all still under review," said one senior administration official, who called the issue "hard, complicated and controversial." The official, who declined to speak on the record about an intelligence matter, said that "everybody recognizes that we're writing against, far from a blank slate, a very dirty slate. The administration would like to try to get it right."
In a further complication, the Senate panel demanded that Bush obtain a Justice Department review of the interpretation and guidelines, and provide a copy of the review to the committee. The administration is believed to have already obtained the review but is unlikely to turn it over to Congress, the administration official said. Lawmakers will be asked to accept Bush's assurance in the executive order that the program has been deemed lawful.
The committee, in its version of the fiscal 2008 intelligence authorization bill, said a copy of the review was needed "as part of its ongoing oversight" of the program. "The committee is saying that it's meaningless to us until you provide the legal justification for it," one Senate source said.
Although the committee said the earlier CIA program produced "valuable information that has led to the identification of terrorists and the disruption of terrorist plots," it questioned whether it was the "best means to obtain a full and reliable intelligence debriefing of a detainee." It also advised that the program be "weighed against" the complications it caused in prosecuting suspected terrorists, some of whom have said they were tortured, and "the damage the program does to the image of the United States abroad."
Rizzo's hearing was repeatedly postponed as senators requested additional information from the CIA and the Justice Department related to the history of the detention and interrogation program since the Sept. 11, 2001, attacks. Many, but not all, of the requested documents have been provided over the past several months, a Senate source said.
The Justice Department so far has refused to turn over earlier legal opinions justifying interrogation techniques that human rights organizations and some members of Congress have said constituted torture.
Hayden replaced much of the senior CIA leadership after taking over last summer. His decision to leave Rizzo's nomination in place led opponents of the CIA program to question Hayden's commitment to ensuring its legality.
Sen. Russell Feingold (D-Wis.), an intelligence committee member who has advocated ending all enhanced interrogations, said that "given this administration's willingness to violate the law and keep Congress in the dark . . . it is particularly important for Mr. Rizzo to provide assurances . . . that he will ensure that CIA respects the laws that Congress writes and will not rely on the administration's theory of inherent constitutional authority to violate the law."
Another committee member, Sen. John W. Warner (R-Va.), said in an interview that it is essential that the CIA "have a sort of parallel framework that can stand alongside" military regulations and allow the agency "to continually confirm to the Congress that they are operating within the framework of the law."
Bush acknowledged the existence of secret CIA detention centers last September and said the last 14 prisoners being held had been transferred to the U.S. military prison at Guantanamo Bay, Cuba. The administration at the same time left open the possibility that new prisoners could be detained under the program, which Bush called a crucial national security tool.
Last summer, the Supreme Court ruled that all U.S. detainees were covered by provisions of the Geneva Conventions. The Military Commissions Act specified Geneva prohibitions against "inhumane" treatment, such as rape and murder, but left it to the president to intepret what a provision known as Common Article 3 meant by "humiliating" and "degrading."
The CIA is free to interrogate prisoners within existing military guidelines and believes that the enhanced techniques it has presented to the administration and to Congress fall within a legal definition. But it has been reluctant to authorize use of the techniques until the White House endorses its proposal.
Although the White House said in March that it expected to issue the executive order in "the next few weeks," a spokesman said last week that officials "can't anticipate when the deliberations will be completed."
Noting that the "Military Commissions Act sets forth no timing requirement for its issuance," the spokesman added that since the order "would be authoritative in its interpretation of the Geneva Conventions, it is important that the administration takes time to consider fully all legal and administrative aspects."