Chertoff's Legal Advice Led to First Case of Waterboarding

By Jason Leopold, OpEd News

When the CIA wanted assurances in the summer of 2002 that their agents would not be prosecuted for using brutal interrogation methods against a so-called high-level detainee in custody the agency turned to Michael Chertoff, the former head of the Justice Department’s Criminal Division.

Chertoff, now the director of homeland security, told the agency that an August 2002 legal opinion drafted by John Yoo, then a deputy assistant attorney general at the DOJ’s office of legal counsel, and signed by Jay Bybee, Yoo’s boss, would protect CIA interrogators from criminal prosecution if the methods of interrogation they intended to use against prisoners met any legal challenges, specifically, claims that the interrogators violated federal anti-torture statutes.

For an interrogation to meet the definition of torture, Yoo wrote, “the victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result.”

Chertoff’s guarantee that CIA agents would not be prosecuted for breaking anti-torture laws led directly to the use of waterboarding against alleged al-Qaeda operative Abu-Zubaydah in August 2002, the first time that method of interrogation was used against a prisoner in the so-called war on terror, according to Pentagon and Justice Department documents, previously published news reports, and several books that have been written about the Bush administration’s interrogation methods.

While Yoo, now a law professor at the University of California at Berkeley, has been the recent target of widespread criticism for providing the Bush administration with the legal authority to use harsh interrogation methods against prisoners, it has become increasingly clear over the past several months that it was senior White House officials, such as Chertoff, who gave interrogators the green light to actually waterboard prisoners.

"The CIA was seeking to determine the legal limits of interrogation practices for use in cases like that of Abu Zubaydah, the Qaeda lieutenant who was captured in March 2002," says a January 29, 2005, New York Times story click here The report quoted unnamed sources who told the newspaper that "Chertoff was directly involved in these discussions, in effect evaluating the legality of techniques proposed by the CIA by advising the agency whether its employees could go ahead with proposed interrogation methods without fear of prosecution."

In his book "The One Percent Doctrine," author Ron Suskind said President Bush became obsessed with Zubaydah and the information he allegedly had about pending terrorist plots against the United States.

"Bush was fixated on how to get Zubaydah to tell us the truth," Suskind wrote. Bush questioned one CIA briefer, "Do some of these harsh methods really work?"

The waterboarding of Abu-Zubaydah, which Chertoff was queried about, was videotaped. The videotape was destroyed in November 2005 after The Washington Post published a story that first exposed the CIA's use of so-called "black site" prisons overseas to interrogate terror suspects, using methods that were not legal in the United States. John Durham, an assistant attorney general in Connecticut, was appointed special counsel earlier this year to investigate the destruction of that videotape as well as other interrogations that were filmed and later purged.

During his Senate confirmation hearing in February 2005, Chertoff vehemently denied allegations that he provided the CIA with legal guidance on the use of specific interrogation methods. Rather, he said he gave the agency broad guidance in response to questions about interrogation methods. He said he never addressed the legality regarding waterboarding or other techniques.

"You are dealing in an area where there is potential criminality," Chertoff said he told the agency, according to his Senate confirmation testimony. "You better be very careful to make sure that whatever you decide to do falls well within what is required by law."

The CIA officials who pressed Chertoff to provide promises that agency interrogators would not be prosecuted were former CIA General Counsel Scott Muller and his deputy, John Rizzo, according to the Times. Both men are now at the center of the probe involving the destruction of the videotaped interrogations. Rizzo is now the CIA’s general counsel.

According to the Times, however, Chertoff participated in the drafting of a second memo, also published in August 2002, which is still classified, that described specific interrogation methods CIA interrogators could use against detainees. The interrogation techniques used by the CIA were adopted from the Army and Air Force’s Survival, Evasion, Rescue, and Escape (SERE) training program.

Earlier this week, the American Civil Liberties Union released more than 300 pages of documents showing that in 2003 military interrogators used methods they learned during SERE training against eight Afghanistan detainees held at the Gardez Detention Facility in southeastern Afghanistan. The methods used included being forced to kneel outside in wet clothing, being sprayed with a cold water, and being punched and kicked over the course of three weeks.... One of the prisoners, an 18-year-old Afghan militia fighter named Jamal Naseer, later died. The documents released to the ACLU say his body was so severely beaten by his interrogators that it appeared to be a black and green color at the time of his death.

Amrit Singh, an ACLU attorney, said SERE tactics used by interrogators that the DOJ approved using against detainees was not intended to be used by US forces as a defense. US soldiers were subjected to SERE methods during the course of their military training to prepare for the brutal treatment they might face if captured.

President Bush, Vice President Dick Cheney, former Secretary of Defense Donald Rumsfeld, and other senior administration officials have long maintained that incidents at Gardez or the torture of prisoners at Abu Ghraib were isolated acts of violence by a few “bad apples” and not the result of any policy or directive that emanated from the White House or Justice Department.

To the contrary, it was the policies signed by Bush, and assurances provided to the CIA by officials such as Chertoff, that were responsible for the atrocities at Abu Ghraib and prisoner abuse at Guantanamo.

A 2004 report on the prisoner abuse at Abu Ghraib prepared by a panel led by James Schlesinger determined that an action memorandum dated Feb. 7, 2002 that was signed by President Bush stating that the Geneva Convention did not apply to members of al-Qaeda or the Taliban led Lt. Ricardo S. Sanchez, the top commander in Iraq to institute a “dozen interrogation methods beyond” the Army’s standard practice under the convention.

Sanchez said he based his decision on reasoning “from the President's Memorandum of February 7, 2002," which he said had justified "additional, tougher measures" against detainees, the Schlesigner report said.

And the abuses that took place at Guantanamo, according to a separate report issued by Army Maj. Gen. George R. Fay, were the result of Rumsfeld’s verbal and written authorization in December 2002 that said interrogators could use “stress positions, isolation for up to thirty days, removal of clothing and the use of detainees' phobias (such as the use of dogs).”

“From December 2002, interrogators in Afghanistan were removing clothing, isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation,” the Fay report says.

Rumsfeld’s approval of certain interrogation methods outlined in a December 2002 action memorandum was criticized by Alberto Mora, the former general counsel of the Navy.

“The interrogation techniques approved by the Secretary [of Defense] should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture, a degree of mistreatment not otherwise proscribed by the memo because it did not articulate any bright-line standard for prohibited detainee treatment, a necessary element in any such document,” Mora wrote in a 14-page letter to the Navy’s inspector general.

Additionally, a Dec. 20, 2005 Army Inspector General Report relating to the capture and interrogation of Mohammad al Qahtani includes a a sworn statement by Lt. Gen. Randall M. Schmidt that Secretary Rumsfeld was “personally involved” in the interrogation of al Qahtani and spoke “weekly” with Maj. Gen. Geoffrey Miller, the commander at Guantanamo, about the status of the interrogations between late 2002 and early 2003. Gitanjali S. Gutierrez, an attorney with the Center for Constitutional Rights, who represents al Qahtani, said in a sworn declaration that his client, who is imprisoned at Guantanamo, was subjected to months of torture based on verbal and written authorization’s from Rumsfeld.

“At Guantánamo, Mr. al Qahtani was subjected to a regime of aggressive interrogation techniques, known as the “First Special Interrogation Plan,” that were authorized by U.S. Secretary of Defense Donald Rumsfeld,” Gutierrez said. “Those techniques were implemented under the supervision and guidance of Secretary Rumsfeld and the commander of Guantánamo, Major General Geoffrey Miller. These methods included, but were not limited to, forty-eight days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory overstimulation, and threats with military dogs.”

Gutierrez’s claims about the type of interrogation al-Qahtani endured have since been borne out with the release of hundreds of pages of internal Pentagon documents describing interrogation methods at Guantanamo and at least two independent reports about prisoner abuse.

All told, the Schlesinger report says, orders signed by Bush and Rumsfeld in 2002 and 2003 authorizing brutal interrogations “became policy” at Guantanamo and Abu Ghraib, the Schlesinger report says.

In February, the Justice Department's Office of Professional Responsibility (OPR) confirmed that it launched a formal investigation to determine, among other issues, whether agency attorneys, including Chertoff, provided the White House and the CIA with poor legal advice when it said CIA interrogators could use harsh interrogation methods against detainees

Authors Bio: Jason Leopold is the author of the National Bestseller, "News Junkie," a memoir. Visit www.newsjunkiebook.com for a preview. He is also a two-time winner of the Project Censored award, most recently, in 2007, for an investigative story related to Halliburton's work in Iran. He was recently named the recipient of the Military Religious Freedom Foundation’s Thomas Jefferson Award for a series of stories he wrote that exposed how soldiers in Iraq and Afghanistan have been pressured to accept fundamentalist Christianity. Leopold is working on a new nonprofit online publication, expected to launch soon.