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Immunity and interrogators: a second look

Times change.

More than eight years ago, the White House and Congress agreed to give immunity from criminal prosecution and civil lawsuits to those who engaged in torture under interrogation programs. That has protected CIA and Defense Department personnel who participated in the programs authorized by the Bush administration after Sept. 11, 2001.

The Detainee Treatment Act of 2005 and the Military Commission Act of 2006 also provided for lawyers and required the payment of legal fees for interrogators engaged between Sept. 11, 2001 and December 2005.

Both bills were passed after the April 2004 exposure of mistreatment of detainees at Iraq’s Abu Ghraib prison. They primarily dealt with setting up a military commission to try detainees at Guantanamo Bay, Cuba, including which of the almost 600 detainees would face prosecution and who would be released.

Ten years ago, when Sept. 11 was still fresh in people’s minds and fear of more attacks was acute, the initial legal standards for interrogations set by the Bush administration and the Justice Department allowed some harsh interrogation techniques. The CIA and the U.S. military used them on detainees in Afghanistan and Iraq and at the Guantanamo Bay military prison.

The White House and Congress agreed that after Sept. 11, the initial Bush administration legal standards for interrogation were vague.

At the Defense Department, which was quickly involved in Afghanistan, lawyers in the general counsel’s office in December 2001 were asked to help prepare a detainee facility and procedures for handling the prisoners. They sought information on detainee “exploitation” from the Joint Personnel Recovery Agency (JPRA), a Pentagon agency “whose expertise was in training American personnel to withstand interrogation techniques considered illegal under the Geneva Conventions,” according to a 2008 Senate Armed Services Committee report.

These techniques, part of the SERE (Survival, Evasion, Resistance and Escape) program included, according to the committee, stripping individuals, placing them in stress positions, putting hoods over their heads, disrupting their sleep, subjecting them to loud music and flashing lights, extreme temperatures, face and body slaps, and for some, waterboarding.

In January 2002, James Mitchell, a retired Air Force psychologist, and Bruce Jessen, a psychologist at the JPRA — the same pair prominent later in the CIA program — drafted a paper for Pentagon officials on al Qaida resistance capabilities and ways to defeat them.

Sound familiar?

On Feb. 7, 2002, President George W. Bush went further. In a memorandum to senior administration officials, he said the provisions of the Geneva Conventions — which prohibited torture of prisoners of war — would not apply to al Qaida and Taliban detainees.

The public had already expressed concern about torture.

As early as Jan. 22, 2002, after the first detainees arriving at the new Guantánamo Bay facility had been photographed as hooded, shackled and forced to kneel in open-air, fenced shelters, Defense Secretary Donald Rumsfeld said, “I’ve seen in headlines and articles words like ‘torture’ and one thing and another, which is just utter nonsense.”

He told Pentagon reporters, “The policies of the United States government are humane, and the way the prisoners — the detainees — are being treated is humane.”

What was not disclosed then and in succeeding years was that both Defense and the CIA had adopted harsh interrogation techniques adapted from the SERE program. Those violated not just the Geneva Conventions but elements of U.S. law that made it a crime for an American to carry out torture abroad.

Sensitive to the law, the CIA on several occasions sought assurance from the White House that its practices were legal. It did not initiate waterboarding of its first high-value al Qaida captive, Abu Zubaida, until it received oral authority from the Justice Department on Aug. 1, 2002. That September it was in a written opinion.

On July 3, 2003, CIA Director George J. Tenet, in a memo to national security adviser Condoleezza Rice, again sought assurance that the White House’s legal support was unwavering.

He pointed to an updated Sept. 20, 2002, Justice authorization for “stress and duress” techniques. By that time three targets, Abu Zubaida, Khalid Sheik Mohammed (KSM) and Abd al-Rahim al-Nashiri, had been waterboarded and were providing information.

“Our officers are relying on the guidance they have been given that they are implementing U.S. policy,” Tenet wrote in requesting “the administration reaffirm its commitment to the use of enhanced techniques in this program as appropriate.”

At a July 29, 2003, White House meeting with Rice, Attorney General John D. Ashcroft and White House counsel Alberto R. Gonzales present, CIA officials went over the program in detail. Rice commented on the number of times KSM had been waterboarded, 119 at that point. Ashcroft said that he was aware and that it was within what was authorized, according to a CIA memorandum of the meeting. That memo was part of the Senate Intelligence Committee’s recent report but did not include Ashcroft’s comments. A full and declassified version of the memo has been published on a Web site run by former agency officials.

The CIA suspended its interrogation program on two other occasions. One was in response to a critical CIA inspector general’s report in 2004, after which the White House and the Justice Department in May 2005 authorized continued use of 13 techniques. Thereafter, “enhanced interrogation” techniques were used on five detainees through December 2005, when another suspension was begun.

It was against that record Congress passed legislation that immunized former interrogators and others in the program.

Those calling for another federal criminal investigation based on the Senate panel’s report should realize they are not only dealing with an incomplete record but forgetting history.

© 2014, The Washington Post