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Chertoff's Legal Advice Led to First Case of Waterboarding

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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.

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Jason Leopold is Deputy Managing Editor of and the founding editor of the online investigative news magazine The Public Record, He is the author of the National Bestseller, "News Junkie," a memoir. Visit (more...)
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