April 17, 2009
Memorandums for John Rizzo
(John Rizzo was the CIA’s acting general counsel.)
From the Department of Justice:
In connection with ongoing litigation, the Department of Justice today released four previously undisclosed Office of Legal Counsel (“OLC”) opinions – one that OLC issued to the Central Intelligence Agency in August 2002 and three that OLC issued to the CIA in May 2005.
“The President has halted the use of the interrogation techniques described in these opinions, and this administration has made clear from day one that it will not condone torture,” said Attorney General Eric Holder. “We are disclosing these memos consistent with our commitment to the rule of law.”
Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.
The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee’s behalf and asserting any available immunities and other defenses in the proceeding itself.
To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.
“It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” Holder said.
After reviewing these opinions, OLC has decided to withdraw them: They no longer represent the views of the Office of Legal Counsel.
Debra Cassens Weiss writes for the ABA Journal:
Four Justice Department memos released yesterday approving harsh interrogation techniques for terrorism suspects provide the most comprehensive look so far at the methods considered and sometimes used in secret overseas prisons.
Approved methods included refusing to allow detainees to sleep for 11 days, forced nudity, spraying detainees with 41-degree water, and confining detainees in small boxes, the New York Times reports. One approved practice, called walling, involved pressing a detainee’s shoulder blades against a fake wall, producing loud noises, according to the Washington Post.
A 2002 memo signed by Jay Bybee, a lawyer in the Justice Department’s Office of Legal Counsel, approved interrogation techniques that could be used against al-Qaida suspect Abu Zubaydah, including one that exploited his fear of insects. Bybee is now a federal appeals judge on the San Francisco-based 9th U.S. Circuit Court of Appeals.
The memo said it would be permissible to tell Zubaydah a stinging insect is being placed in a small box with him, while substituting a harmless insect such as a caterpillar. The technique was never used, officials said.
The Bybee memo also gave detailed legal approval for waterboarding, the New York Times says. The other three memos were signed by Steven Bradbury, chief of the Justice Department’s Office of Legal Counsel, in response to a request for legal advice from the CIA. A New York Times story published last month said Bradbury is now unemployed.
One of Bradbury’s memos addressed the issue of walling, according to the Post account. “A detainee may be walled one time (one impact with the wall) to make a point, or twenty to thirty times consecutively when the interrogator requires a more significant response to a question,” the memo said.
The memos were released with few redactions in response to a lawsuit by the American Civil Liberties Union and the Center for Constitutional Rights. The legal opinions were withdrawn by President Barack Obama in his second day in office.
Obama said CIA employees whose conduct was approved in the memos would not be prosecuted.