Judge Plans To Review Opinion on CIA Tactics

By Dan Eggen
Washington Post Staff Writer
Friday, May 9, 2008

A federal judge in New York intends next week to review one of the Bush administration's most controversial legal opinions related to detainee interrogations, to decide if it has appropriately been withheld from public view.

U.S. District Judge Alvin K. Hellerstein of the Southern District of New York said in an order yesterday that on Monday he intends to review an Aug. 1, 2002, memo on specific CIA interrogation techniques, marking an unusual review outside the executive branch.

The 2002 memo from the Justice Department's Office of Legal Counsel accompanied a broader document on the definition of torture that has already been released publicly and disavowed by the administration.

The second, still-classified memo focuses on the specific interrogation techniques that were deemed legally permissible at the CIA, according to court documents and intelligence officials. The memo was authored by then-OLC deputy John C. Yoo and includes discussion of waterboarding, a type of simulated drowning that the CIA has acknowledged using on three al-Qaeda suspects in its custody, officials have said.

Hellerstein had previously ruled that the memo could be properly withheld by the government because it was subject to attorney-client privilege. But Hellerstein said in his order yesterday that he had not given "sufficient consideration" to several factors, including evidence from the American Civil Liberties Union that all or part of the memo may have been "incorporated into official practice and policy."

The ACLU is suing the administration under the Freedom of Information Act seeking records related to the use of harsh interrogation tactics. Justice Department spokesman Brian Roehrkasse said the government was reviewing the order.

ACLU attorney Jameel Jaffer called the ruling "encouraging" and said it could lead to the release of one of the most important documents in the debate over whether the government sanctioned torture. The CIA declined to comment.

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