Did CIA Interrogators Violate Federal Law Against Torture?

5092177Before you read the following excerpts from the CIA interrogation report released today, consider these three points:

1. A 1994 federal law prohibits U.S. nationals from performing torture upon penalty of up to 20 years in prison. "Torture" is defined as the threat of imminent death, the threat of someone else being killed, and acts "specifically intended to inflict severe physical or mental pain or suffering."

2. Waterboarding has long been viewed as torture. A post-World War II tribunal ruled that waterboarding was torture when performed by the Japanese; the U.S. government condemned it at the time as a "brutal and bestial" practice. When U.S. soldiers were subjected to it during the Philippine-American War, a senator denounced it in a 1902 speech as "cold-blooded, deliberate, calculated torture." In 1984, a federal appeals court ruled that waterboarding done by Texas law enforcement was "torture."

3. By the end of his term as president, George W. Bush knew the techniques that CIA interrogators employed. Yet on his final days of office, when he was signing petitions for clemency, he chose not to pardon anyone involved. (A few years earlier, Bush had declared that "torture anywhere is an affront to human dignity everywhere.")
The declassified-but-heavily-redacted CIA report released on Monday by the Justice Department reveals these so-called "enhanced" interrogation techniques:

* Waterboarding was designed to produce "the perception of 'suffocation and incipient panic,' i.e., the perception of drowning... It is likely that this procedure would not last more than 20 minutes in any one application." The waterboarding technique involved "large volumes of water" and was more extreme than what the CIA initially (and privately) said it would do. One prisoner "was subjected to the waterboard at least 183 times... and was denied sleep for a period of 180 hours."

* One interrogator used an unloaded semi-automatic handgun as a prop to frighten alleged al Qaeda official Abd al-Rahim al-Nashiri. The interrogator "racked the handgun once or twice close to Al-Nashiri's head," and another "entered the detainee's cell and revved the drill while the detainee stood naked and hooded."

* Al-Nashiri was told that "We could get your mother in here" and "We can bring your family in here," a reference to sexual assaults. Another detainee, Khalid Sheikh Mohammed, was told that if there are other attacks on the United States, "We're going to kill your children."

* Other techniques included threats, "hard takedowns," placing harmless insects in a box with a prisoner who was terrified of insects, sleep deprivation, mandatory diapering, blowing cigar smoke, employing certain stress positions, the use of a stiff brush to cause pain, and stepping on a detainee's ankle shackles. The point of the cigar smoke was to make prisoners "ill to the point where they would start to 'purge.'"

* One CIA officer fired a handgun in a staged incident outside the interrogation room, combined with screaming and yelling by CIA officers and guards. "When the guards moved the detainee from the interrogation room, they passed a guard who was dressed as a hooded detainee, lying motionless on the ground, and made to appear as if he had been shot to death." There were other "mock executions."

These details seem to have been what convinced Attorney General Eric Holder to announce on Monday that he was ordering a criminal probe of the CIA's interrogation techniques. Holder appointed John Durham, a federal prosecutor, to head the investigation -- which will conclude with a recommendation about whether criminal charges should be brought or not.

No doubt the CIA interrogators will claim that a legal memorandum written by Jay Bybee, an assistant attorney general under Bush and now a federal appellate judge, justified their actions. What's a bit odd, though, is that Holder intentionally limited the scope of the investigation to exempt "anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees."

Translation: As long as someone from the Bush Justice Department had given their blessing to waterboarding or whatever else was going on, the CIA interrogators will remain immune from investigation and prosecution.

Monday's declassified document from the CIA's inspector general indicates that, in some but not all cases, interrogators went beyond what Bybee had declared to be legal. But the real impact of Holder's decision will be to retroactively affirm Bybee's legal opinion and shield Bush-era officials from criminal prosecution -- even if they knowingly violated the 1994 federal law prohibiting acts "intended to inflict severe physical or mental pain or suffering."

Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.
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    Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.

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