The Justice Department in 2002 told the CIA in a memo that its interrogators would be safe from prosecution for breaking anti-torture laws if they believed “in good faith” that harsh techniques would not cause “prolonged mental harm.”
That heavily censored memo, released Thursday, approved the CIA's harsh interrogation techniques method by method but warned that if the circumstances changed, interrogators could be running afoul of anti-torture laws.
The Aug. 1, 2002, legal opinion signed by then-Assistant Attorney General Jay Bybee was issued the same day he wrote a memo for then-White House Counsel Alberto Gonzales defining torture as only “extreme acts” that cause pain similar in intensity to that of death or organ failure.
The Bybee legal opinion defining torture was withdrawn more than two years later. Justice spokesman Peter Carr said the conclusions of the opinion approving specific interrogation methods are still in force.
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CIA Director Michael Hayden banned waterboarding in 2006 but officials have said it remains possible if approved by the attorney general, the CIA chief and the president.
The new Bybee memo was obtained by the American Civil Liberties Union, along with two other previously unreleased documents dealing with the CIA's interrogation program. The Bybee memo specifically approved proposed interrogation techniques devised for use against al-Qaida suspects who were resistant to traditional questioning.
The standards used to judge how physically rough an interrogation could be are blacked out. But interrogations that stress a detainee psychologically or emotionally were not allowed to cause “prolonged mental harm.” That was defined as harm lasting months or even years after the interrogation.
The memo suggests psychiatrists or psychologists should be consulted before interrogations to assess the likely mental health effect on the prisoner.
“The healthier the individual, the less likely that the use of any one procedure or set of procedures will result in prolonged mental harm,” the memo states.
The new documents indicate senior Bush administration officials were aware of the potentially problematic use of certain interrogation methods, including waterboarding.
In a second memo, dated Jan. 28, 2003, then-CIA Director George Tenet authorized CIA officers to interrogate a terror suspect using an “enhanced technique” and ordered a record to be kept as the interrogation was happening. It was unclear whether the record would be notes, video or audio, but it was to include the “nature and duration of each such technique employed, the identities of those present” and other factors.
Tenet's memo also authorized both “enhanced techniques” and “standard techniques,” and said no other methods could be used “unless otherwise approved by headquarters.”
A third document released Thursday is undated but likely was written in 2004, well after the last confirmed use of waterboarding on a CIA prisoner. It addresses a planned interrogation, saying it should go forward only with a clear understanding of all policies regarding the treatment of prisoners.
That unsigned memo defends interrogations but warns those authorizing them to be fully aware of the then-emerging international and U.S. legal debate on the issue. It appears to serve as groundwork to defend the legality of interrogations – including waterboarding – if necessary.
“Intelligence gained using the interrogation techniques has saved Americans lives and property,” the unsigned memo states.