April 16, 2009 -- Months after Sept. 11, 2001, a top Bush administration lawyer authorized the CIA to use interrogation techniques such as the water board, attention grab, sleep deprivation and cramped confinement, finding that the techniques could be used because there was "no specific intent to inflict severe mental pain or suffering."
Such details emerged today as the Justice Department released pages of legal memos from the Bush administration as a part of a Freedom of Information lawsuit brought by the ACLU.
The memos argued that although someone subjected to waterboarding may experience the fear or panic associated with the feeling of drowning, the actual technique "does not in our view inflict severe pain or suffering."
"These memos provide yet more incontrovertible evidence that Bush administration officials at the highest level of government authorized and gave legal blessings to acts of torture that violate domestic and international law," said Anthony D. Romero, executive director of the ACLU.
The memos included an August 2002 legal opinion signed by top Justice Department lawyer Jay Bybee that provided the specific authorization for waterboarding that the CIA would use against three detainees -- Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri -- in 2002 and 2003.
The memo, written just after the CIA had captured Zubaydah, noted that he had a fear of insects and advised the CIA that they could place the detainee in a box with an insect but that the CIA must "inform him that the insects will not have a sting that would produce death or severe pain."
Bybee revealed in the memo that the CIA was concerned because there was a "level of 'chatter' equal to that which preceded the Sept. 11 attacks" and that Zubaydah is "withholding information."
Bybee noted that the CIA wished to move to an "increased pressure phase."
Also released were three memos written in 2005 by Steven G. Bradbury, who served as principal deputy assistant attorney general in Justice Department's Office of Legal Counsel (OLC). These memos were written, in part, to replace the Bybee memo that the administration withdrew out of fear that the legal analysis was not solid.
Memos Deem Waterboarding Legal
However, the so called "Bradbury memos," whose existence was revealed exclusively by the New York Times in 2007, found once again that waterboarding and other techniques were not torture, and therefore legal.
Regarding waterboarding, Bradbury's wrote: "Without in any way minimizing the distress caused by this technique, we believe that the panic brought on by the waterboard during the very limited time it is actually administered, combined with any residual fear that may be experienced over a somewhat longer period, could not be said to amount to the 'prolonged mental harm'" that would cause the technique to cross the legal threshold and become illegal.
Bradbury also addressed the issue of combined techniques: "Although the insult slap, abdominal slap, attention grasp, facial hold, walling, water dousing, stress positions, and cramped confinement cannot be employed during the actual session when the waterboard is being employed, they may be used at a point in time close to the waterboard, including the same day."
President Obama wrote a letter today addressed to the "Men and Women of the CIA" and told them that he had not made the decision to release the opinions "lightly," but that he felt, "The release of these memos is required by our commitment to the rule of law."
In his letter, Obama assured the members of the intelligence community that this is a "time for reflection, not retribution" and that those who "acted reasonably and relied upon legal advice from the Department of Justice" would be protected.
"The attorney general has assured me that these individuals will not be prosecuted and that the government will stand by them," the president wrote.
In 2008, Bradbury testified on the Capitol Hill about the still-secret memos and told Congress that he felt the use of waterboarding "subject to strict limitations and safeguards" was not torture.
He also counseled House members that descriptions of waterboarding that had surfaced in the public debate, including references to the Spanish Inquisition, "bear no resemblance to what the CIA did."
At the hearing, Rep. Trent Franks, R-Ariz., praised Bradbury.
"Severe interrogations are unpleasant, to be very sure," Franks said. "But Mr. Chairman, they are sometimes necessary to prevent severe consequences that potentially involve the violent deaths of thousands of innocent American citizens."
The CIA says the waterboarding technique was never used after 2003 and that the technique was suspended in 2006.
The International Committee for the Red Cross (ICRC) wrote a memo in February 2007 documenting an interview it did with Zubaydah regarding his experience with the technique called "suffocation by water."
In the report, first revealed by the New York Review of Books, Zubaydah said, "I was put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe."
The ICRC determined that the interrogation techniques "either singly or in combination, constituted torture."
Obama Under Pressure to Release Memos
Earlier this month, CIA director Leon Panetta announced that the CIA no longer operates detention facilities to detain terrorism suspects. He added that the CIA no longer employs enhanced interrogation techniques that were authorized by both the Bybee and Bradbury memos.
Attorney General Eric Holder signaled early in his tenure that, contrary to the Bush administration, he considered waterboarding to be torture.
In his confirmation hearing he told senators, "If you look at the history of the use of that technique used by the Khmer Rouge, used in the Inquisition, used by the Japanese and prosecuted by us as war crimes. We prosecuted our own soldiers for using it in Vietnam."
Both the Bush and Obama administrations were under heavy pressure to release the memos since it was first revealed that the OLC, which renders legal opinions to the executive branch, was producing opinions on interrogation procedures.
Administration sources say that the decision to release the documents , with mild redactions, caused controversy with some in the administration who felt that the release might damage national security.
President Obama has resisted calls by some top democrats to open some type of investigation into the Bush administration's conduct during the war on terror. The release of these documents, coupled with the leak a few weeks ago to the New York Review of Books of the ICRC report could reenergize the debate.
History of the Legal Opinions
It was in 2002 that the OLC first began getting requests from the CIA for legal guidance.
The CIA began capturing highly valued detainees such as Al Qaeda lieutenant Abu Zubaydah in 2002 and was secretly holding them in foreign detention facilities abroad. CIA officers were concerned they didn't have enough guidance on which interrogation techniques would be acceptable.
In August of 2002, Bybee, then head of the OLC, signed the two legal opinions that are widely believed to be written by his deputy, John Yoo. The CIA welcomed the memos, which laid out some legal guidelines.
According to one former top CIA official, "We were desperately waiting for these memos to come out to give us clarity."
George Tenet, former head of the CIA referenced the memos in a book he authored: "Despite what Hollywood might have you believe, in situations like this you don't call in the tough guys; you call in the lawyers. It took until August to get clear guidance on what Agency officers could legally do. Without such legal determinations from the Department of Justice, our officers would have been at risk for future second guessing. "
The first memo laid out the administration's position on torture and a second gave the legal authorization for some interrogation techniques.
When the existence of the first memo was revealed by the Washington Post in June 2004, it's content caused outrage, particularly language that said torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
The second memo, with specific guidance on particular techniques, until today had only been released in heavily redacted form.
Both memos were later withdrawn by the Bush administration.
In December 2004, a new acting head at the OLC, Daniel Levin, released the administration's new legal position on torture.
Levin's opinion began: "Torture is abhorrent."
Levin was set to tackle the second memo on the actual techniques, but incoming Attorney General Alberto Gonzales chose a different person to head the OLC, Steven Bradbury.
By May 2005, Bradbury produced at least three more memos that were released today on interrogation procedures.
At the time, Congress was moving toward bolstering the prohibition against cruel, inhuman and degrading treatment and the Bradbury memos said that the techniques did not violate that standard.
Today's release comes a day after Richard Armitage, a high-ranking former State Department official in the Bush administration, told Al Jazeera English, that he hoped he "would've had the courage to resign" had he known more about the interrogation of detainees.