CIA doesn't use torture, Bush says

Times Staff Writers

washington -- President Bush on Friday defended the CIA's harsh interrogation of terrorism suspects, saying its methods do not constitute torture and are necessary to protect America from attack.

But Bush's declaration that the United States "does not torture people" did little to dampen the fallout from fresh evidence that his administration has used secret legal memos to sanction tactics that stretch, if not circumvent, the law.

The president's comments came amid disclosures this week of classified opinions issued by the Justice Department in 2005 that endorsed the legality of an array of interrogation tactics, ranging from sleep deprivation to simulated drowning.

Bush's decision to comment again on what once was among the most highly classified U.S. intelligence programs underscores the political peril surrounding the issue for the White House, which has had to retreat from earlier, aggressive assertions of executive power.

It also reflects the extent to which the debate over tactics in the war on terrorism remains unresolved, six years after the Sept. 11 attacks. The limits on CIA interrogators have been particularly fluid, shifting repeatedly under a succession of legal opinions, court rulings and executive orders.

In a brief appearance at the White House, Bush stressed the legality of the CIA program -- even while making the case for continued use of coercive methods.

"We stick to U.S. law and our international obligations," Bush said. But when the United States locates a terrorism suspect, he added: "You bet we're going to detain them, and you bet we're going to question them -- because the American people expect us to find out information, actionable intelligence so we can help protect them. That's our job."

The president's comments were met with outrage from key Democrats in Congress.

"The administration can't have it both ways. I'm tired of these games," said Sen. John D. Rockefeller IV (D-W.Va.), chairman of the Senate Intelligence Committee. "They can't say that Congress has been fully briefed while refusing to turn over key documents used to justify the legality of the program."

The issue is expected to confront Michael B. Mukasey, Bush's nominee to be the next attorney general, at a Senate confirmation hearing later this month.

The two memos that surfaced publicly this week are among a collection of documents the White House has refused to turn over to congressional committees examining the CIA detention and interrogation program.

The newly uncovered memos, which were described for the first time Thursday by the New York Times, were drafted by the Justice Department shortly after Alberto R. Gonzales took over as attorney general in February 2005. They appear to show that the Bush administration continued to condone harsh interrogation techniques by the CIA even as Congress was moving to outlaw them.

One of the memos, written by the department's Office of Legal Counsel, authorized the CIA to use a combination of painful interrogation tactics, including head-slapping, extreme temperatures and simulated drowning, known as water-boarding.

A later opinion declared that none of the controversial methods violated a congressional ban on "cruel, inhuman and degrading" treatment of prisoners that lawmakers enacted in late 2005.

The secret memos were issued at a time when the administration appeared to be signaling publicly that it was backing off from the most aggressive forms of coercive interrogation.

In December 2004, the Justice Department published an analysis by the Office of Legal Counsel that declared torture to be "abhorrent," and rejected an earlier opinion finding that methods short of causing "organ failure, impairment of bodily function or even death" were legally permissible.

The memos since have been superseded by an executive order Bush issued in July, establishing stricter limits on CIA interrogation methods and requiring the agency to comply with the Geneva Convention on treatment of prisoners.

The order bans "torture, cruel or inhuman treatment, mutilation or maiming" as well as sexual humiliation or the denigration of religious objects or beliefs. But it contains loopholes that appear to allow certain coercive methods to continue.

One provision lists the "basic necessities of life" that are to be provided any prisoner, including adequate food, water and shelter. But the section makes no mention of sleep, and experts said the order appears to permit the use of stress positions as well as rough physical treatment.

Water-boarding is probably no longer allowed, said Tom Malinowski, the Washington advocacy director for Human Rights Watch.

But even under the newest rules, Malinowski said, "they could keep someone in an air-conditioned room, hands tied to the ceiling, music blaring and bright lights for four days."

A companion document spelling out in more detail the techniques that the CIA is allowed to employ remains classified. The White House on Friday reiterated its long-standing refusal to discuss individual techniques, saying their disclosure would benefit U.S. foes.

Some lawmakers and military officials have expressed concern that the Bush administration has established a confusing system in which the CIA is free to go far beyond strict interrogation limits adopted by the military in September 2006, in the aftermath of the Abu Ghraib prison scandal.

Some also worry that in sanctioning harsh methods, the United States is inviting other countries to employ similar techniques on U.S. personnel.

At a Senate Intelligence Committee hearing last month, retired Army Lt. Gen. Charley Otstott said "any techniques used by the CIA under this program are essentially those which our soldiers could expect to be used against them if they fall into enemy hands."

The debate has focused fresh scrutiny on the influential Office of Legal Counsel, which advises the president on the limits of executive power and has come under stiff criticism for approving broad claims by Bush in his response to Sept. 11.

Historically, the Justice Department office has been a training ground for elite lawyers, including Supreme Court Justices Antonin Scalia and Samuel A. Alito Jr. But critics have expressed concern that in the Bush administration, it has become politicized.

Jack L. Goldsmith, a Harvard law professor who headed the office between October 2003 and June 2004, published a book last month detailing battles within the administration over terrorism policies and steps he took to disavow and rewrite opinions on torture and other subjects that he considered legally indefensible. He testified about his findings this week before the Senate Judiciary Committee.

The acting head of the office, Steven G. Bradbury, who signed both of the newly disclosed opinions, has been singled out by Democrats as an administration rubber stamp. The congressional majority has refused to confirm his nomination, which has been pending for two years.

Bradbury previously wrote a legal justification that the administration used to publicly defend the National Security Agency's use of warrantless electronic surveillance after Sept. 11. Given congressional opposition, there would be pressure on Mukasey, as attorney general, to replace Bradbury.

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greg.miller@latimes.com

rick.schmitt@latimes.com

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(BEGIN TEXT OF INFOBOX)

Defining 'torture'

For five years, U.S. officials have struggled over the treatment of terrorism suspects and what interrogation techniques constitute torture. Here are some of the documents that represent milestones in the unfolding debate:

Geneva Convention, Common Article 3, 1949: Bans any act of "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" and prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment."

U.N. Convention Against Torture, 1984: Defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted" to obtain information or a confession. Also bans intimidating or coercing treatment.

Justice Department Office of Legal Counsel, August 2002 ("Bybee memo"): Held that torture had to be pain that is "difficult to endure" and "must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death."

Justice Department Office of Legal Counsel, December 2004: Withdraws the 2002 memo, saying: "Torture is abhorrent, both to American law and values and to international norms."

Justice Department Office of Legal Counsel, 2005: Formerly secret, the existence of two memos was divulged this week. One authorizes the CIA to use a combination of painful tactics: head-slapping, extreme temperatures and simulated drowning, known as water-boarding. The second declared that none of the controversial methods violated a congressional torture ban enacted later in 2005.

Detainee Treatment Act/Military Commissions Act, 2005 and 2006: The "McCain amendment" to two defense budget bills in 2005 prohibits "cruel, inhuman or degrading treatment or punishment" of detainees held by the U.S. The same language is approved the following year in a bill overhauling the system of trials for detainees at Guantanamo Bay, Cuba.

Army Field Manual, 2006: A new version of the Army field manual explicitly recognizes the Geneva Convention and authorizes only 19 interrogation techniques while banning the most controversial tactics: hooding prisoners, mock executions, simulated drowning.

U.S. Supreme Court, June 2006: Strikes down Bush administration's detention system because it violated U.S. law and the Geneva Convention. Rules Geneva applies to detainees.

Executive Order, July 2007: President Bush establishes limits on CIA interrogation methods and requires the agency to comply with the Geneva Convention, but allows the agency to resume a secret detention program.

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Source: Times reporting

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