By Dan Eggen
Washington Post Staff Writer
Thursday, April 24, 2008
The CIA concluded that criminal, administrative or civil investigations stemming from harsh interrogation tactics were "virtually inevitable," leading the agency to seek legal support from the Justice Department, according to a CIA official's statement in court documents filed yesterday.
The CIA said it had identified more than 7,000 pages of classified memos, e-mails and other records relating to its secret prison and interrogation program, but maintained that the materials cannot be released because they relate to, in part, communications between CIA and Justice Department attorneys or discussions with the White House.
Nineteen of those documents were withheld from disclosure specifically because the Bush administration decided they are covered by a "presidential communications privilege," according to the filings, made in federal court in Manhattan. Some were "authored or solicited and received by the President's senior advisors in connection with a decision, or potential decision, to be made by the president."
Although the precise content of the documents is unknown, the agency's statements illustrate the extent to which senior White House officials were involved in decision-making on CIA detentions, interrogations, and renditions, a term for forced transfers of prisoners. These topics were the targets of a Freedom of Information Act lawsuit by liberal advocacy groups that compelled the CIA's disclosures.
The flow of documents, by itself, also suggests that the CIA's unorthodox interrogation program was the focus of behind-the-scenes debate at the highest levels of the Bush administration after the Sept. 11, 2001, attacks. The documents indicate that lawyers at the CIA and elsewhere were aware that CIA personnel might be subject to criminal prosecution or other legal sanctions.
After the CIA's use of harsh interrogation tactics, including a form of simulated drowning, became known, the agency said they were authorized by a series of secret Justice Department legal opinions. President Bush has strongly defended the legality and efficacy of the program, and recently acknowledged that he approved of high-level White House meetings on precise interrogation practices.
The records submitted to the court list and briefly describe dozens of communications between the CIA and the Justice Department's Office of Legal Counsel, or OLC. At least 10 were in 2004, five were in 2005, and seven were in 2006; virtually all were classified "top secret" or even more restricted.
"The CIA's purpose in requesting advice from OLC was the very likely prospect of criminal, civil, or administrative litigation against the CIA and CIA personnel who participate in the Program," said a declaration from Ralph S. DiMaio, information review officer for the CIA's clandestine service. He added that the CIA considered such proceedings "to be virtually inevitable."
Asked for comment, CIA spokesman George Little said, "Weighing relevant legal factors at the start of any new program is not only logical but is the responsible thing to do. Unfortunately, the fact that people and organizations follow the law does not prevent them from becoming the subject of litigation later on."
But Curt Goering, senior deputy executive director of Amnesty International USA, which is involved in the lawsuit, said the flow of documents shows that the Bush administration "didn't go into this system blind and they didn't build this system blind," adding: "It appears to be a calculated and calibrated effort to justify the unjustifiable."
Staff researcher Julie Tate contributed to this report.