New York Times
January 30, 2005
WASHINGTON, Jan. 28 - Michael Chertoff, who has been picked by President Bush to be the homeland security secretary, advised the Central Intelligence Agency on the legality of coercive interrogation methods on terror suspects under the federal anti-torture statute, current and former administration officials said this week.
Depending on the circumstances, he told the intelligence agency, some coercive methods could be legal, but he advised against others, the officials said.
Mr. Chertoff's previously undisclosed involvement in evaluating how far interrogators could go took place in 2002-3 when he headed the Justice Department's criminal division. The advice came in the form of responses to agency inquiries asking whether C.I.A. employees risked being charged with crimes if particular interrogation techniques were used on specific detainees.
Asked about the interaction between the C.I.A. and Mr. Chertoff, now a federal appeals court judge in Newark, Erin Healy, a White House spokeswoman, said, "Judge Chertoff did not approve interrogation techniques as head of the criminal division."
Ms. Healy added, "We're not aware that anyone in the criminal division was involved in approving techniques because that responsibility would have belonged in the Office of Legal Counsel," another Justice Department unit.
One current and two former senior officials with firsthand knowledge of the interaction between the C.I.A. and the Justice Department said that while the criminal division did not explicitly approve any requests by the agency, it did discuss what conditions could protect agency personnel from prosecution.
Mr. Chertoff's division was asked on several occasions by the intelligence agency whether its officers risked prosecution by using particular techniques. The officials said the C.I.A. wanted as much legal protection as it could obtain while the Justice Department sought to avoid giving unconditional approval.
One technique that C.I.A. officers could use under certain circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning. Other practices that would not present legal problems were those that did not involve the infliction of pain, like tricking a subject into believing he was being questioned by a member of a security service from another country.
But in other instances Mr. Chertoff opposed some aggressive procedures outright, the officials said. At one point, they said, he raised serious objections to methods that he concluded would clearly violate the torture law. While the details remain classified, one method that he opposed appeared to violate a ban in the law against using a "threat of imminent death."
Mr. Chertoff and other senior officials at the Justice Department also disapproved of practices that seemed to be clearly prohibited, like death threats against family members, administration of mind-altering drugs or psychological procedures designed to profoundly disrupt a detainee's personality. It is not clear whether the C.I.A. or any other agency proposed these techniques.
But Mr. Chertoff left the door open to the use of a different set of far harsher techniques proposed by the C.I.A., saying they might be used under certain circumstances. He advised that they could be used depending on factors like the detainee's physical condition and medical advice as to how the person would react to some practices, the officials said.
In responding, Mr. Chertoff's division said that whether the techniques were not allowed depended on the standards outlined in an August 2002 memorandum from the Office of Legal Counsel that has since been disclosed and which defined torture narrowly. That memorandum, signed by Jay S. Bybee, then the head of the legal counsel's office, said inflicted pain, for example, qualified as torture only if it was of a level equivalent to organ failure or imminent death.
The officials said that when the agency asked about specific practices, Mr. Bybee responded with a second memorandum, which is still classified. They said it said many coercive practices were permissible if they met the narrow definition in the first memorandum.
The officials said Mr. Chertoff was consulted on the second memorandum, but Ms. Healy of the White House said he had no role in it.
The C.I.A. was seeking to determine the legal limits of interrogation practices in cases like that of Abu Zubaydah, the Qaeda lieutenant captured in March 2002.
The officials said Mr. Chertoff was directly involved in these discussions, in effect, evaluating the legality of techniques proposed by the C.I.A. by advising the agency whether its employees could go ahead with proposed interrogation methods without fear of prosecution.
Mr. Chertoff is scheduled to appear on Wednesday before the Senate Homeland Security and Government Affairs Committee. Senators have said that Mr. Chertoff, a highly respected former prosecutor, will have little difficulty being confirmed.
Still, questions about interrogation practices dominated the confirmation hearing of Alberto R. Gonzales as attorney general, and Mr. Gonzales's unwillingness to discuss his legal advice on the issue was a reason some Democratic senators on the Judiciary Committee gave for voting against sending his nomination to the full Senate for approval.
The C.I.A. declined to comment on the agency's discussions with the Justice Department.
In interviews, former senior intelligence officials said C.I.A. lawyers went to extraordinary lengths beginning in March 2002 to get a clear answer from the Justice Department about which interrogation techniques were permissible in questioning Abu Zubaydah and other important detainees. The lawyers involved included Scott Muller, then the agency's general counsel, and John Rizzo, his top deputy, the officials said.
"Nothing that was done was not explicitly authorized," a former senior intelligence said. "These guys were extraordinarily careful."
In recent weeks, some former intelligence officials have expressed concern that a new legal opinion about torture the Justice Department issued in late December might leave C.I.A. officers exposed to prosecution. It defined torture more broadly than an August 2002 memorandum later repudiated by the Bush administration, thus implicitly allowing less latitude for extreme interrogation measures.
Many of the interrogation techniques in the C.I.A.'s list were adopted from the Air Force's Survival, Evasion, Rescue, and Escape training program.
As head of the criminal division, Mr. Chertoff was known in legal circles as an aggressive prosecutor who advocated the use of the civilian court system to handle many terrorism cases, which put him at odds with those in the administration who advocated a system of military tribunals. He successfully argued that Zacarias Moussaoui, charged as an operative of Al Qaeda, should be tried in a civilian court. That case has been bogged down in court by legal challenges, including objections to the use of classified evidence.
In November 2003, Mr. Chertoff, then a federal judge, delivered a widely noted speech in which he said the policy of open-ended detentions for terror suspects needed to be changed.
"We need to debate a long-term and sustainable architecture for the process of determining when, why and for how long someone may be detained as an enemy combatant, and what judicial review should be available," he said at a judicial conference in Philadelphia.