The New Yorker:
The C.I.A. has reportedly been implicated in at least four deaths of detainees in Afghanistan and Iraq, including that of Jamadi, and has referred eight potentially criminal cases involving abuse and misconduct to the Justice Department. In March, Goss, the C.I.A.’s director, testified before Congress that “we don’t do torture.”
One reason these C.I.A. officials may not be facing charges is that, in recent years, the Justice Department has established a strikingly narrow definition of torture. In August, 2002, the department’s Office of Legal Counsel sent a memo on interrogations to the White House, which argued that a coercive technique was torture only when it induced pain equivalent to what a person experiencing death or organ failure might suffer. By implication, all lesser forms of physical and psychological mistreatment—what critics have called “torture lite”—were legal. The memo also said that torture was illegal only when it could be proved that the interrogator intended to cause the required level of pain. And it provided interrogators with another large exemption: torture might be acceptable if an interrogator was acting in accordance with military “necessity.” A source familiar with the memo’s origins, who declined to speak on the record, said that it “was written as an immunity, a blank check.” In 2004, the “torture memo,” as it became known, was leaked, complicating the nomination of Alberto R. Gonzales to be Attorney General; as White House counsel, Gonzales had approved the memo. The Administration subsequently revised the guidelines, using language that seemed more restrictive. But a little-noticed footnote protected the coercive methods permitted by the “torture memo,” stating that they did not violate the “standards set forth in this memorandum.”
The Bush Administration has resisted disclosing the contents of two Justice Department memos that established a detailed interrogation policy for the Pentagon and the C.I.A. A March, 2003, classified memo was “breathtaking,” the same source said. The document dismissed virtually all national and international laws regulating the treatment of prisoners, including war-crimes and assault statutes, and it was radical in its view that in wartime the President can fight enemies by whatever means he sees fit. According to the memo, Congress has no constitutional right to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in which prisoners may be interrogated. Another classified Justice Department memo, issued in August, 2002, is said to authorize numerous “enhanced” interrogation techniques for the C.I.A. These two memos sanction such extreme measures that, even if the agency wanted to discipline or prosecute agents who stray beyond its own comfort level, the legal tools to do so may no longer exist.
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