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Justice Advised CIA in '02 About Legal Waterboarding

By Joby Warrick
Washington Post Staff Writer
Friday, July 25, 2008

Lawyers for the Bush administration told the CIA in 2002 that its officers could legally use waterboarding and other harsh measures while interrogating al-Qaeda suspects, as long as they acted "in good faith" and did not deliberately seek to inflict severe pain, according to a Justice Department memo made public yesterday.

The memo, apparently intended to assuage CIA concerns that its officers could someday face torture charges, said interrogators needed only to possess an "honest belief" that their actions did not cause severe suffering. And the honest belief did not have to be based on reality.

"Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it," stated the Aug. 1, 2002, memo signed by Jay S. Bybee, then an assistant attorney general with the Justice Department's Office of Legal Counsel.

The memo was one of three released by the Justice Department under a Freedom of Information Act request filed by the American Civil Liberties Union. The heavily redacted memos offer insight into the administration's legal maneuvering as it sought to justify the CIA's program of aggressively interrogating high-level al-Qaeda operatives held in secret prisons overseas. The program included waterboarding, or simulated drowning, as well as sleep deprivation and other measures intended to weaken resistance and coerce confessions.

While human rights groups and many legal experts have condemned such tactics as tantamount to torture, the Justice memo argued that no action could be considered torture unless it was intended as torture.

"The absence of specific intent negates the charge of torture," it said. Bybee, the author, also drafted a previously released 2002 memo that sought to define torture as an act that inflicted suffering so severe as to result in death or permanent damage to bodily organs.

ACLU officials attacked the documents' logic. "The memos provide further evidence that the Office of Legal Counsel completely distorted the law in order to permit interrogators to use methods that the U.S. has historically viewed as war crimes," said Jameel Jaffer, director of the ACLU National Security Project.

Noting that entire pages of the documents had been blacked out, Jaffer accused the administration of hiding crucial information "to shield senior officials from embarrassment, accountability and possibly even criminal prosecution."

A CIA spokesman defended the agency's interrogation program and said a judge approved the redactions to protect security.

"One of the CIA's objectives was to deny terrorists insights into a lawful tool that has been used with great success against them," said the spokesman, Paul Gimigliano. "It's absurd for anyone to suggest that's an attempt to avoid accountability."

He said the interrogation policies helped disrupt terrorist plots and were "safe, lawful and effective."

Dean Boyd, a Justice Department spokesman, noted that the Bybee memo was rescinded more than three years ago and replaced by a new legal opinion that broadened the definition of torture.

Other memos released yesterday offered insight into the extreme care the CIA took in ensuring that interrogators followed agency rules. One such document, signed by then-CIA chief George J. Tenet in January 2003, ordered that extensive records be kept for each interrogation as it occurred -- to reflect "the nature and duration on each technique employed," he wrote.

Staff writer Carrie Johnson contributed to this report.

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