The Bush administration claims that they never condone the use of torture – except when they do.
Officers of the Central Intelligence Agency and other nonmilitary personnel fall outside the bounds of a 2002 directive issued by President Bush that pledged the humane treatment of prisoners in American custody, Alberto R. Gonzales, the White House counsel, said in documents released on Tuesday.
In written responses to questions posed by senators as part of his confirmation for attorney general, Mr. Gonzales also said a separate Congressional ban on cruel, unusual and inhumane treatment had “a limited reach” and did not apply in all cases to “aliens overseas.” That position has clear implications for prisoners held in American custody at Guantnamo Bay, Cuba, and in Iraq, legal analysts said.
In a directive issued to senior administration officials in February 2002 on the treatment of the hundreds of men seized during the war in Afghanistan, President Bush reaffirmed a Pentagon policy requiring humane treatment of prisoners.
At the time, the White House cast the directive in broad terms. Ari Fleischer, then the White House spokesman, said in announcing the policy, “Consistent with the American values and the principles of the Geneva Convention, the United States has treated and will continue to treat all Taliban and Al Qaeda detainees in Guantnamo Bay humanely and consistent with the principles of the Geneva Convention.”
Questioned by Senator Leahy and others about the directive, Mr. Gonzales said in his written reply that the president’s policy “was designed to provided guidance to the United States armed services.” Asked whether C.I.A. officers and other nonmilitary personnel fell under that order, he said, “No.”
Mr. Gonzales’s acknowledgment in the written statements that the White House did not consider the C.I.A. bound by the same rules as military personnel is significant because the intelligence agency has carried out some of the government’s most aggressive and controversial interrogation tactics in interviewing “high value” terror suspects. These techniques include “water boarding,” in which interrogators make it appear that the suspect will be drowned.
Martin Lederman, a former Justice Department lawyer who has analyzed the administration’s legal positions on treatment of prisoners, said the documents released Tuesday made it clear that the White House had carved an exemption for the C.I.A. in how it goes about interrogating terror suspects, allowing the agency to engage in conduct outside the United States that would be unconstitutionally abusive within its borders. Although the C.I.A. has been largely bound by Congressional bans on torture, Mr. Lederman said that standard was more permissive than the 2002 directive from Mr. Bush.
“But it’s notable,” Mr. Lederman added, “that Gonzales is not willing to tell the senators or anyone else just what techniques the C.I.A. has actually been authorized to use.”
Indeed, Mr. Gonzales declined to say in his written responses to the committee what interrogation tactics would constitute torture in his view or which ones should be banned.