The recently retired director of CIA operations worldwide yesterday defended the legality of the CIA's interrogation and detention policies in Iraq and elsewhere, saying they were carefully vetted and approved by the National Security Council and disclosed to the appropriate congressional oversight committees.
"There's a perception that the CIA does things on its own, sort of makes things up out of whole cloth," said James L. Pavitt, who retired in August. "There are hard, fast, unambiguous rules about how things are done and not done. . . . The view that this is some sort of rogue activity . . . it's just not true."
Pavitt's comments came in an interview two days after disclosure that the Justice Department, at the CIA's request, drafted a confidential memo in March authorizing the agency to transfer detainees out of Iraq for interrogation, which some legal specialists say violates the Geneva Conventions.
The draft opinion, first disclosed in a Washington Post article on Sunday, said the section of the Geneva Convention that protects civilians, insurgents and other nonmilitary personnel in Iraq would permit the CIA to take Iraqis and non-Iraqis out of that country temporarily for questioning. But some experts in international law said the draft legal memo was a misreading of the treaty, which prohibits the "[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory . . . regardless of their motive."
The CIA, according to an intelligence source, used the document to transfer as many as a dozen detainees out of Iraq since March.
The CIA's interrogation techniques and handling of detainees have been under scrutiny since the abuse scandal at the military-run Abu Ghraib prison in Iraq. Resulting investigations have found that the CIA hid some detainees in Iraq and Afghanistan from the International Committee of the Red Cross, transferred others to secret detention sites in unspecified countries and has been given authority to conduct harsh interrogations on certain al Qaeda terrorist suspects.
Pavitt, who declined to talk about specific CIA authorities or legal memos, said the activities recently in the news were "done in consultation with the executive at all levels, the National Security Council and such. . . . Any impression that we were operating high, wide and handsome, without appropriate congressional oversight, I think would also be, incorrect."
White House officials declined to discuss the issue yesterday, as did the CIA. One intelligence official who would speak only on the condition of anonymity, echoed some of Pavitt's comments, saying, "These operations are conducted in consultations with other elements of the government."
In addition to ruling on the transfer of Iraqi detainees, the Justice Department's office of legal counsel also created a new category of people in Iraq that it said did not qualify for protection under the Geneva Conventions: non-Iraqis who were not members of Saddam Hussein's former Baath Party and who went to Iraq after the invasion. The new classification was included in a one-page October 2003 interim ruling, which was finalized March 18.
The intelligence official said non-Iraqi detainees were taken out of Iraq under that provision only after review and approval by the Justice Department.
Although the military's treatment of detainees in Iraq has been the subject of public hearings and investigations, the CIA's policies and general authorities have received little review in such public forums.
After the Abu Ghraib scandal broke, the House and Senate armed services committees held about a dozen hearings on Defense Department interrogation and detention policies. The hearings included Defense Secretary Donald H. Rumsfeld and top generals. The department has also declassified hundreds of pages of documents relevant to the investigation.
But neither the House or Senate intelligence oversight committees has held an open session on the CIA's detention or interrogation policies. The chairman and vice chairman of the House and Senate committees were briefed, without staff members present, on the new enhanced interrogation techniques being employed by the CIA against selected terrorist suspects soon after the Sept. 11, 2001, attacks.
The chairman and vice chairman were also briefed, said intelligence and congressional sources, on the legal justification for the CIA's policies governing what are called renditions -- when captives are turned over to other governments for interrogations. In some cases those governments are known to abuse human rights.
Some of the legal opinions concerning the renditions were discussed among the chairman, vice chairman and Attorney General John D. Ashcroft, sources said.
Human rights groups and others have criticized the intelligence committees for not holding public hearings on such practices. "The armed services committees have been doing their job, but they are prevented, because of jurisdiction, from looking into the CIA's policies," said Tom Malinowski of Human Rights Watch. "The internal policies developed by the CIA influenced the conduct of the military in Abu Ghraib and Iraq. The intelligence committees clearly have not done the necessary oversight."