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Report Warned on C.I.A.'s Tactics in Interrogation
By DOUGLAS JEHL
11/09/05 "New
York Times " -- -- WASHINGTON, Nov. 8 - A classified
report issued last year by the Central Intelligence Agency's
inspector general warned that interrogation procedures approved by
the C.I.A. after the Sept. 11 attacks might violate some provisions
of the international Convention Against Torture, current and former
intelligence officials say.
The previously undisclosed findings from the report, which was
completed in the spring of 2004, reflected deep unease within the
C.I.A. about the interrogation procedures, the officials said. A
list of 10 techniques authorized early in 2002 for use against
terror suspects included one known as waterboarding, and went well
beyond those authorized by the military for use on prisoners of war.
The convention, which was drafted by the United Nations, bans
torture, which is defined as the infliction of "severe" physical or
mental pain or suffering, and prohibits lesser abuses that fall
short of torture if they are "cruel, inhuman or degrading." The
United States is a signatory, but with some reservations set when
ratified by the Senate in 1994.
The report, by John L. Helgerson, the C.I.A.'s inspector general,
did not conclude that the techniques constituted torture, which is
also prohibited under American law, the officials said. But Mr.
Helgerson did find, the officials said, that the techniques appeared
to constitute cruel, inhuman and degrading treatment under the
convention.
The agency said in a written statement in March that "all approved
interrogation techniques, both past and present, are lawful and do
not constitute torture." It reaffirmed that statement on Tuesday,
but would not comment on any classified report issued by Mr.
Helgerson. The statement in March did not specifically address
techniques that could be labeled cruel, inhuman or degrading, and
which are not explicitly prohibited in American law.
The officials who described the report said it discussed particular
techniques used by the C.I.A. against particular prisoners,
including about three dozen terror suspects being held by the agency
in secret locations around the world. They said it referred in
particular to the treatment of Khalid Sheikh Mohammed, who is said
to have organized the Sept. 11 attacks and who has been detained in
a secret location by the C.I.A. since he was captured in March 2003.
Mr. Mohammed is among those believed to have been subjected to
waterboarding, in which a prisoner is strapped to a board and made
to believe that he is drowning.
In his report, Mr. Helgerson also raised concern about whether the
use of the techniques could expose agency officers to legal
liability, the officials said. They said the report expressed
skepticism about the Bush administration view that any ban on cruel,
inhuman and degrading treatment under the treaty does not apply to
C.I.A. interrogations because they take place overseas on people who
are not citizens of the United States.
The current and former intelligence officials who described Mr.
Helgerson's report include supporters and critics of his findings.
None would agree to be identified by name, and none would describe
his conclusions in specific detail. They said the report had
included 10 recommendations for changes in the agency's handling of
terror suspects, but they would not say what those recommendations
were.
Porter J. Goss, the C.I.A. director, testified this year that eight
of the report's recommendations had been accepted, but did not
describe them. The inspector general is an independent official
whose auditing role at the agency was established by Congress, but
whose reports to the agency's director are not binding.
Some former intelligence officials said the inspector general's
findings had been vigorously disputed by the agency's general
counsel. To date, the Justice Department has brought charges against
only one C.I.A. employee in connection with prisoner abuse, and
prosecutors have signaled that they are unlikely to bring charges
against C.I.A. officers in several other cases involving the
mishandling of prisoners in Iraq and Afghanistan.
But the current and former intelligence officials said Mr.
Helgerson's report had added to apprehensions within the agency
about gray areas in the rules surrounding interrogation procedures.
"The ambiguity in the law must cause nightmares for intelligence
officers who are engaged in aggressive interrogations of Al Qaeda
suspects and other terrorism suspects," said John Radsan, a former
assistant general counsel at the agency who left in 2004. Mr.
Radsan, now an associate professor at William Mitchell College of
Law in St. Paul, would not comment on Mr. Helgerson's report.
Congressional officials said the report had emerged as an unstated
backdrop in the debate now under way on Capitol Hill over whether
the C.I.A. should be subjected to the same strict rules on
interrogation that the military is required to follow. In opposing
an amendment sponsored by Senator John McCain, Republican of
Arizona, Mr. Goss and Vice President Dick Cheney have argued that
the C.I.A. should be granted an exemption allowing it extra
latitude, subject to presidential authorization, in interrogating
high-level terrorists abroad who might have knowledge about future
attacks.
The issue of the agency's treatment of detainees arose shortly after
the attacks of Sept. 11, after C.I.A. officers became involved in
interrogating prisoners caught in Afghanistan, and the agency sought
legal guidance on how far its employees and contractors could go in
interrogating terror suspects, current and former intelligence
officials said.
The list of 10 techniques, including feigned drowning, was secretly
drawn up in early 2002 by a team that included senior C.I.A.
officials who solicited recommendations from foreign governments and
from agency psychologists, the officials said. They said officials
from the Justice Department and the National Security Council, which
is part of the White House, were involved in the process.
Among the few known documents that address interrogation procedures
and that have been made public is an August 2002 legal opinion by
the Justice Department, which 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
classified legal opinion in the summer of 2004 after it was publicly
disclosed.
A new opinion made public in December 2004 and, signed by James B.
Comey, then 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. Officials have said that the footnote meant 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 standards.
It remains unclear whether all 10 of the so-called enhanced
procedures approved in early 2002 remain authorized for use by the
C.I.A. In an unclassified report this summer, the Senate
Intelligence Committee referred briefly to Mr. Helgerson's report
and said that the agency had fully put in effect only 5 of his 10
recommendations. But in testimony before Congress in February Mr.
Goss said that eight had.
Some former intelligence officials have said the C.I.A. imposed
tighter safeguards on its interrogation procedures after the abuses
at Abu Ghraib prison came to light in May 2004. That was about the
same time Mr. Helgerson completed his report.
The agency issued its earlier statement on the legality of approved
interrogation techniques after Mr. Goss, in testimony before
Congress on March 17, said that all interrogation techniques used
"at this time" were legal but declined to make the same broad
assertion about practices used over the past few years.
On March 18, Jennifer Millerwise Dyck, the agency's director of
public affairs, said that "C.I.A. policies on interrogation have
always followed legal guidance from the Department of Justice."
Copyright 2005 The New York Times Company
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