When the Justice Department said seven years ago that CIA interrogators at a secret prison in Thailand could make a suspected al-Qaeda leader fear he was drowning, it prescribed precise limits: Water could be poured from a cup or small watering can onto a saturated cloth covering his mouth and nose, inhibiting breathing for up to 40 seconds. It could be repeated, after allowing three or four full breaths, for up to 20 minutes.
But when the technique was employed on Abu Zubaida and later on 9/11 mastermind Khalid Sheik Mohammed and al-Qaeda planner Abd al-Rahim al-Nashiri, the interrogators in several cases applied what the CIA's Office of Inspector General described in a secret 2004 report as "large volumes of water" to the cloths, explaining that their aim was to be more "poignant and convincing," according to a recently declassified Justice Department account.
To assess whether interrogators complied with the department's guidance, Senate intelligence committee investigators are interviewing those involved, examining hundreds of CIA e-mails and reviewing a classified 2005 study by the agency's lawyers of dozens of interrogation videotapes, according to government officials who said they were not authorized to be quoted by name. Officials familiar with the Justice Department's inquiries into policymaking on detainees during the Bush administration said Attorney General Eric H. Holder Jr. has not ruled out conducting a similar investigation.
The issue has attracted scrutiny because of President Obama's statement April 22 that those involved would be immune from prosecution if they "carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House."
Portions of the CIA inspector general report that have been made public and an account of detainees' experiences by the International Committee of the Red Cross highlight other potential excesses: the punching and beating of at least nine detainees in ways that appeared to go beyond authorized abdominal and facial "slaps"; the extended confinement of at least one detainee in a box so small that he had to crouch despite approval only for seated confinement; the slamming of detainees into firm walls, instead of the authorized pushing into a "false" wall that gave way; and the shackling of detainees' arms to overhead hooks or pipes, requiring that the prisoners stand for days at a time, despite the apparent absence of clear, written authorization by the Justice Department's Office of Legal Counsel for such shackling before 2005
The videotape study, which the Senate intelligence committee demanded to see in 2005 but did not receive until last year, assessed the legality of interrogations that occurred between April and December 2002. Its conclusions have not been disclosed, and the CIA destroyed the videotapes in late 2005. As early as October 2002, a lawyer for the CIA's Counterterrorism Center, Jonathan Fredman, told officers at the U.S. military prison in Guantanamo Bay, Cuba, that "the videotaping of even totally legal techniques will look 'ugly,' " a recent report by the Senate Armed Services Committee said.
Government officials familiar with the CIA's early interrogations say the most powerful evidence of apparent excesses is contained in the "top secret" May 7, 2004, inspector general report, based on more than 100 interviews, a review of the videotapes and 38,000 pages of documents. The full report remains closely held, although White House officials have told political allies that they intend to declassify it for public release when the debate quiets over last month's release of the Justice Department's interrogation memos.
According to excerpts included in those memos, the inspector general's report concluded that interrogators initially used harsh techniques against some detainees who were not withholding information. Officials familiar with its contents said it also concluded that some of the techniques appeared to violate the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States in 1994.
Although some useful information was produced, the report concluded that "it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks," according to the Justice Department's declassified summary of it. The threat of such an imminent attack was cited by the department as an element in its 2002 and later written authorization for using harsh techniques.
When the report was finished, CIA official Constance Rea told a New York court in January 2008, the inspector general "notified DOJ and other relevant oversight authorities of the review's findings." But two Bush administration officials privy to its conclusions said it did not provoke a specific CIA "referral" to the department suggesting an investigation of potential criminal liability, and no such investigation was undertaken at the time.
A U.S. intelligence official, asked for comment Friday, said that at the time of the inspector general report, the agency's general counsel "took issue with the interpretations of law put forward" in that report. "The bar for criminal referrals is low -- basically the possibility that a crime may have been committed. If it was all as clear-cut as the IG narrative suggests, why were no referrals made?"
The report's conclusions nonetheless prompted CIA general counsel John A. Rizzo to request fresh statements by the Justice Department that what the agency had been doing was indeed legal. Steven G. Bradbury, then deputy assistant attorney general, responded in May 2005 by issuing three opinions explaining why the interrogations did not violate the Convention Against Torture.
Legal experts say that bringing criminal charges against the CIA interrogators or those who ordered harsh methods would be akin to prosecuting police officers for brutality, but it could require also proving that the interrogators acted in bad faith.
David Kaye, a former State Department lawyer who runs UCLA's International Human Rights Program, said, "I don't think we know . . . the mechanics of how OLC legal advice made its way to people in the field, and it's the mechanics that will help investigators know whether there was bad faith in the interrogation program on the ground."
He added that U.S. anti-torture laws bar even "the conspiracy to commit torture," and those are the provisions that "should cause concern for [any] senior-level officials" who sanctioned improper interrogations, even from a distance.
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