Newspaper Finds Justice Authorized Torture in 2004 The U.S. Justice Department publicly condemned the use of torture during interrogation in 2004. But the New York Times reports Thursday that secret documents authorizing harsh tactics were circulated internally.

Newspaper Finds Justice Authorized Torture in 2004

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From the studios of NPR West, this is DAY TO DAY. I'm Alex Cohen.


I'm Alex Chadwick.

Coming up, the world's top weapons seller is the U.S. by a lot, so where does all that firepower go?

COHEN: First, today the New York Times reports the Bush administration has secretly authorized interrogation techniques that many people would define as torture. That's despite congressional legislation banning torture and official statements from the White House that say torture is against U.S. policy.

CHADWICK: The secret authorizations came in a series of opinions from the Justice Department over the last couple of years.

Scott Shane is co-author of the Times report. We spoke earlier about the content of those opinions.

Mr. SCOTT SHANE (New York Times): One of the secret opinions that we learned about, we're told, concludes that the harsh treatments that have been used by the CIA in some cases at their secret sites overseas against al-Qaida prisoners, which have been extremely harsh and have been described extensively elsewhere, including things like water-boarding, a technique that simulates drowning, the ruling found that those techniques are not themselves cruel, inhuman and degrading, and therefore would not be illegal under the ban on cruel, inhuman, degrading treatment that was passed at the end of 2005.

CHADWICK: These techniques include water boarding, hitting people, keeping them in frigid temperatures. How is that not degrading treatment at least?

Mr. SHANE: We haven't seen these secret opinions. We've only been told about them, so we don't know the details of the arguments. But apparently the standard that is used is what shocks the conscience. So our belief is that this opinion states that certain techniques which might shock the conscience if used against an ordinary prisoner in an ordinary situation, might not shock the conscience if used against an al-Qaida prisoner who might, in theory, know something about the next terrorist attack.

CHADWICK: You write about the treatment of Khalid Sheikh Mohammed. Now, this guys is in fact a real villain, the chief planner of the 9/11 attacks, but after he was captured, you say he was subjected to these very harsh techniques more than 100 times in a period of two weeks. And these techniques, I guess, were combined in some way?

Mr. SHANE: Yes. I mean, the question, we're told, that kept arising for the CIA folks who are given this job was even though certain techniques had been approved for use individually, they were combining them. So for example, if someone was prevented from sleeping for, you know, 24 hours or 48 hours, but was also kept in a cold room, also had reduced food rations, their worry was that even though their lawyers were telling them that these techniques had been individually approved, you know, was there some combination of these techniques that would in fact cross the legal line and become torture? And the CIA people were always concern that at some point the pendulum would swing back the other way and they would face criticism or perhaps even criminal prosecution for the things that they were doing, they felt in good faith and with the approval of their own lawyers.

So the combination - the question of how these things could be combined was the subject of one of these secret legal opinions in 2005.

CHADWICK: Your article also says that the CIA ultimately concluded that these harsh techniques against this particular prisoner, Khalid Sheikh Mohammed, were not as useful as patient and repeated questioning by experts, that in fact the tactics weren't very good.

Mr. SHANE: There are some people who say those techniques, including the president and the former director of the CIA, George Tenet, who assert that those techniques have been invaluable and produced great and extremely useful information that could not have been obtained any other way. I think it's probably fair to say that there's a growing chorus of critics who say that at best that hypothesis is untested, that they didn't set up a very sophisticated non-coercive interrogation program; hence they don't really know what they would have gotten if they'd tried this sort of traditional American approach of preparing very, very well, knowing a great deal about your enemy and, you know, using the sort of non-coercive, patient questioning that has traditionally used by Americans.

CHADWICK: The concerns of CIA interrogators who were using these harsh techniques, that they might, in fact, be breaking the law gained some momentum after officials said the Justice Department indeed began questioning these earlier legal opinions that harsh techniques were okay. You write about a kind of a revolt in 2004 at the Justice Department, but that changed after Alberto Gonzales was named attorney general. That was the big turning pointing in the development of these new secret opinions you write.

Mr. SHANE: After that rebellion in 2004, the new attorney general, Alberto Gonzales, had been White House counsel for four years, and of course was an extremely loyal associate of President Bush. And the way some people describe what happened was that one of Mr. Gonzales's assignments and perhaps his main assignment was to bring the Justice Department back into the orbit of the White House, to make sure that they were on the same wavelength, that none of these sort of rebellions would be repeated.

CHADWICK: And so it was under Mr. Gonzales that the - this Office of Legal Counsel at the Justice Department concluded that while the administration is against torture, none of these techniques, none of these harsh techniques, which I think the U.S. Congress said amounted to torture, the Justice Department concluded they do not amount to torture.

Mr. SHANE: One thing that should be stated is that as a matter of policy, the CIA did drop some of the harshest techniques. This is all very secret, so we don't know the details. But they did drop water-boarding, for example, this simulated drowning technique, which is perhaps the most controversial of the techniques that the CIA has used. They dropped it as a matter of policy. However, according to what we've been told, that and all the other techniques that have been used are still considered to be legal under the interpretations that - and again, these are secret legal opinions produced by the Justice Department. In theory the - if the administration decided tomorrow that it wanted to use these tactics, the Justice Department would have essentially given it the green light.

CHADWICK: Scott Shane is co-author of the lead story in this morning's New York Times on secret U.S. endorsement of severe interrogation techniques.

Scott, thank you.

Mr. SHANE: Thank you, Alex.

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