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Sunday, June 27, 2004

Prisoner's Dilemma 

Who's ratting out whom? Check out the brand-new dirt in Dana Priest's "CIA Puts Harsh Tactics on Hold" (from the Washington Post), in which responsibility for the much-"repudiated" torture memos creeps ever higher, and the CIA takes an early lead in the cover-your-ass derby, with the White House, the Justice Dept., and the NSC hot on its heels:
The CIA has suspended the use of extraordinary interrogation techniques approved by the White House pending a review by Justice Department and other administration lawyers, intelligence officials said.

The "enhanced interrogation techniques," as the CIA calls them, include feigned drowning and refusal of pain medication for injuries. The tactics have been used to elicit intelligence from al Qaeda leaders such as Abu Zubaida and Khalid Sheik Mohammed.

Current and former CIA officers aware of the recent decision said the suspension reflects the CIA's fears of being accused of unsanctioned and illegal activities, as it was in the 1970s. The decision applies to CIA detention facilities, such as those around the world where the agency is interrogating al Qaeda leaders and their supporters, but not military prisons at Guantanamo Bay, Cuba, and elsewhere . . . .

Although the White House repudiated the [Aug. 2, 2002, DoJ memo on interrogation techniques] Tuesday as the work of a small group of lawyers at the Justice Department, administration officials now confirm it was vetted by a larger number of officials, including lawyers at the National Security Council, the White House counsel's office and Vice President Cheney's office.

The memorandum was drafted by the Justice Department's Office of Legal Counsel to help the CIA determine how aggressive its interrogators could be during sessions with suspected al Qaeda members. The legal opinion was signed by Jay S. Bybee, then head of the office and now a federal judge. The office consists mainly of political appointees and is considered the executive branch agencies' legal adviser. Memos signed by the head of the office are given the weight of a binding legal opinion.

A Justice Department official said Tuesday at a briefing that the office went "beyond what was asked for," but other lawyers and administration officials said the memo was approved by the department's criminal division and by the office of Attorney General John D. Ashcroft.

In addition, Timothy E. Flanigan -- then deputy White House counsel -- discussed a draft of the document with lawyers at the Office of Legal Counsel before it was finalized, the officials said. David S. Addington, Cheney's counsel, also weighed in with remarks during at least one meeting he held with Justice lawyers involved with writing the opinion. He was particularly concerned, sources said, that the opinion include a clear-cut section on the president's authority.

The commander in chief section of the opinion said laws prohibiting torture do "not apply to the President's detention and interrogation of enemy combatants" in his role as commander in chief. Congress, which has signed international laws prohibiting torture, "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield," according to the August memorandum.
A turf war erupted between the FBI and the CIA in late 2001 as the first al Qaeda operatives were being captured in Afghanistan. The CIA wanted to use "more aggressive" questioning techniques, but the FBI -- which had been handling all interrogations up to that point -- wanted to preserve the "purity" of the process; information extracted under torture would be tainted, and could not be used in any future criminal prosecution. By March of 2002 the CIA had won out:
Abu Zubaida was shot in the groin during his apprehension in Pakistan. U.S. national security officials have suggested that painkillers were used selectively in the beginning of his captivity until he agreed to cooperate more fully. His information led to the apprehension of other al Qaeda members, including Ramzi Binalshibh, also in Pakistan. The capture of Binalshibh and other al Qaeda leaders -- Omar al-Faruq in Indonesia, Rahim al-Nashiri in Kuwait and Muhammad al Darbi in Yemen -- were all partly the result of information gained during interrogations, according to U.S. intelligence and national security officials. All four remain under CIA control.

A former senior Justice Department official said interrogation techniques for "high-value targets" were reviewed and approved on a case-by-case basis, based partly on what strategies would work best on specific detainees. Justice lawyers suggested some limitations that were adopted, the former official said.

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