Classified Detainee Memos at Center of Legal War

April 9, 2008— -- Civil liberties groups have been fighting for years for the Bush administration to release documents pertaining to the treatment of detainees suspected of terrorism. The administration says releasing the documents publicly would harm national security.

Few details have emerged about two of the most controversial documents.

The first is President George W. Bush's initial authorization to set up secret CIA prisons. The second is a 2002 Department of Justice document evaluating interrogation techniques.

Presidential Memorandum: Sept. 17, 2001

Six days after the 9/11 attacks, Bush signed a secret memo that authorized the CIA to set up terrorist detention facilities outside the United States, according to the CIA.

Five years later, Bush officially acknowledged that the top-secret memo had resulted in the existence of secret prisons abroad that had held such high-value detainees as Khalid Sheikh Mohammed and Abu Zubaydah. In a 2006 speech, Bush told the country of the secret CIA program and said, it "remains one of the most vital tools in our war against the terrorists. It is invaluable to America and to our allies."

The ACLU and other civil liberties groups have been waging a war in federal court, trying to get the government to turnover Bush's directive, among other documents pertaining to the treatment of detainees. In court papers the CIA has refused to turnover some of the documents, citing "grave" threats to national security. But it has offered some details.

In a 2007 court filing, Marilyn A. Dorn, the CIA information review officer, acknowledged that the agency possessed a document "created by NSC [National Security Council] officials at the direction of the president," which is "signed by the president" and contains confidential communications. Dorn says the document does not outline interrogation methods that may be used against detainees, but that it "discusses the approval of the clandestine intelligence activity and related analysis and description."

According to the court filing, the document to which Dorn refers is a "14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA's authorization to detain terrorists." The document consists of a 12-page "notification memorandum" from the president to the members of the NSC.

In the court papers, Dorn argues the CIA's position against disclosing the 2001 memo.

"Disclosure of such information reasonably could be expected to result in extremely grave damage to the national security, including the United States' defense against transnational terrorism, by revealing to our adversaries the counterterrorism playbook that the CIA intended to employ with them," the filing says.

DOJ: Evaluating Interrogation Techniques

In June 2007, longtime CIA lawyer John Rizzo told Congress that, in 2002, the CIA had asked the Department of Justice's Office of Legal Counsel to evaluate interrogation techniques. Rizzo told Congress that, on the same day that Deputy Assistant Attorney General John Yoo released his now infamous legal opinion that attempted to define torture, his office also issued a "companion opinion."

This opinion evaluated interrogation techniques. It is referred to as "Bybee Two" after Jay S. Bybee, who was then head of the Office of Legal Counsel. It was withdrawn and replaced in 2005. That replacement memo also is top-secret.

Rizzo was asked about the memo during his confirmation hearings to become general counsel of the CIA.

Rizzo told Sen. Carl Levin, D-Mich., that he had requested "Bybee Two" and had provided the Office of Legal Counsel with the proposed interrogation practices it wanted approval to conduct.

"My office was the vehicle for getting that to DOJ [Department of Justice]," he said.

Levin asked Rizzo if the definition of torture in the first memo written by Yoo was the basis for "determining whether the interrogation techniques evaluated in the second Bybee memo were legal under the anti-torture statute?"

Rizzo replied, "Well, they were — as you know, they were issued on the same day, and in many respects, they play off each other. I, frankly, was more concerned and relied more heavily on the classified guidance of the second Bybee memo that was addressed specifically to us."

Rizzo's nomination for general counsel ultimately failed because some Democratic senators were concerned that he refused to object to the memos.

He told senators the CIA program was conducted "in a humane fashion."