New York Times
January 13, 2005
WASHINGTON, Jan. 12 - At the urging of the White House, Congressional leaders scrapped a legislative measure last month that would have imposed new restrictions on the use of extreme interrogation measures by American intelligence officers, Congressional officials say.
The defeat of the proposal affects one of the most obscure arenas of the war on terrorism, involving the Central Intelligence Agency's secret detention and interrogation of top terror leaders like Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks, and about three dozen other senior members of Al Qaeda and its offshoots.
The Senate had approved the new restrictions, by a 96-to-2 vote, as part of the intelligence reform legislation. They would have explicitly extended to intelligence officers a prohibition against torture or inhumane treatment, and would have required the C.I.A. as well as the Pentagon to report to Congress about the methods they were using.
But in intense closed-door negotiations, Congressional officials said, four senior members from the House and Senate deleted the restrictions from the final bill after the White House expressed opposition.
In a letter to members of Congress, sent in October and made available by the White House on Wednesday in response to inquiries, Condoleezza Rice, the national security adviser, expressed opposition to the measure on the grounds that it "provides legal protections to foreign prisoners to which they are not now entitled under applicable law and policy."
Earlier, in objecting to a similar measure in a Senate version of the military authorization bill, the Defense Department sent a letter to Congress saying that the department "strongly urges the Senate against passing new legislation concerning detention and interrogation in the war on terrorism" because it is unnecessary.
The Senate restrictions had not been in House versions of the military or intelligence bills.
In interviews on Wednesday, both Senator Susan Collins of Maine, a Republican negotiator, and Representative Jane Harman of California, a Democratic negotiator, said the lawmakers had ultimately decided that the question of whether to extend the restrictions to intelligence officers was too complex to be included in the legislation.
"The conferees agreed that they would drop the language but with the caveat that the intelligence committees would take up the issue this year," Ms. Collins said.
Ms. Harman said, "If there are special circumstances around some intelligence interrogations, we should understand that before we legislate."
Some Democratic Congressional officials said they believed that the Bush administration was trying to maintain some legal latitude for the C.I.A. to use interrogation practices more extreme than those permitted by the military.
In its report last summer, the independent commission on the Sept. 11 attacks recommended that the United States develop policies to guarantee that captured terrorists were treated humanely.
Martin Lederman, a former Justice Department lawyer who left the department in 2002, said in an interview on Wednesday that he believed that the administration had "always wanted to leave a loophole where the C.I.A. could engage in actions just up to the line of torture."
The administration has said almost nothing about the C.I.A. operation to imprison and question terror suspects designated as high-value detainees, even as it has expressed disgust about abuses at the Abu Ghraib prison in Iraq. Senior officials have sought in recent public statements to emphasize that the government will continue to abide by federal laws that prohibit torture.
At his confirmation hearing last week on his nomination to be attorney general, Alberto R. Gonzales said he found torture abhorrent.
The issue of the C.I.A.'s treatment of detainees first arose after agency officials sought legal guidance on how far its employees and contractors could go in interrogating terror suspects and whether the law barred the C.I.A. from using extreme methods, including feigned drowning, in the interrogation of Abu Zubaydah, the first of the Qaeda leaders captured by the United States. He was apprehended in Pakistan in early 2002.
An August 2002 legal opinion by the Justice Department said that interrogation methods just short of those that might cause pain comparable to "organ failure, impairment of bodily function or even death" could be allowable without being considered torture. The administration disavowed that opinion last summer after the classified legal opinion was publicly disclosed.
A new opinion made public late last month, signed by James B. Comey, the deputy attorney general, explicitly rejected torture and adopted more restrictive standards to define it.
But a cryptic footnote to the new document about the "treatment of detainees" referred to what the officials said were other still-classified opinions. The footnote meant, the officials said, that coercive techniques approved by the Justice Department under the looser interpretation of the torture statutes were still lawful even under the new, more restrictive interpretation.
Current and former government officials said specific interrogation methods were addressed in a series of still-secret documents, including an August 2002 one by the Justice Department that authorized the C.I.A.'s use of some 20 interrogation practices. The legal opinion was sent to the C.I.A. via the National Security Council at the White House.
Among the procedures approved by the document was waterboarding, in which a subject is made to believe he might be drowned.
The document was intended to guide the C.I.A. in its interrogation of Mr. Zubaydah and a handful of other high-level detainees. Instead, it led to a series of exchanges between the Justice Department and the intelligence agency as they debated exact procedures to be employed against individual detainees.
At times, their discussion included an assessment of whether specific measures, on a detainee by detainee basis, would cause such pain as to be considered torture.
In addition to Ms. Collins and Ms. Harman, the lawmakers in the conference committee negotiations were Senator Joseph I. Lieberman, Democrat of Connecticut, and Representative Peter Hoekstra, Republican of Michigan.
The Senate measure to impose new restrictions on the use of extreme interrogation measures, drafted by Senator Richard J. Durbin, Democrat of Illinois, was in an amendment introduced by Mr. Lieberman and Senator John McCain, Republican of Arizona. And in little-noticed comments on the Senate floor in December, Mr. Durbin complained that the decision by conferees to delete the measure had been "troublesome."
"I think the intelligence community should be held to the same standards as the Department of Defense," Mr. Durbin said in those remarks, "and taking this language out of the bill will make that very difficult to monitor, as I hoped we would be able to do."
A Congressional Democrat said the White House stance had left the impression "that the administration wanted an escape hatch to preserve the option of using torture" against prisoners held by the C.I.A.
The only public statement from the Bush administration about the kinds of restrictions proposed by Mr. Durbin came last June, when the Defense Department expressed strong opposition to a measure in the military authorization bill. That measure, adopted by the Senate, also imposed restrictions prohibiting torture as well as cruel, inhuman and other degrading treatment but it applied only to Defense Department personnel.
In a letter to Congress, Daniel J. Dell'Orto, the Pentagon's principal deputy counsel, criticized the legislation as unnecessary, saying it would "leave the current state of the law exactly where it is." Mr. Dell'Orto also criticized as "onerous" and inappropriate other provisions in the measure that would require the Pentagon to submit annual facility-by-facility reports to Congress on the status of detainees.
Ultimately, the House did not include the measure in its version of that military bill, and the final version of the legislation included only nonbinding language expressing a sense of Congress that American personnel should not engage in torture.