A prisoner at Camp X-Ray in Guantanamo Bay
Aug. 8, 2005 issue - An FBI agent warned superiors in a memo three years ago
that U.S. officials who discussed plans to ship terror suspects to foreign nations
that practice torture could be prosecuted for conspiring to violate U.S. law,
according to a copy of the memo obtained by NEWSWEEK. The strongly worded memo,
written by an FBI supervisor then assigned to Guantanamo, is the latest in a
series of documents that have recently surfaced reflecting unease among some
government lawyers and FBI agents over tactics being used in the war on terror.
This memo appears to be the first that directly questions the legal premises
of the Bush administration policy of "extraordinary rendition"—a
secret program under which terror suspects are transferred to foreign countries
that have been widely criticized for practicing torture.
In a memo forwarded to a senior FBI lawyer on Nov. 27, 2002, a supervisory
special agent from the bureau's behavioral analysis unit offered a legal analysis
of interrogation techniques that had been approved by Pentagon officials for
use against a high-value Qaeda detainee. After objecting to techniques such
as exploiting "phobias" like "the fear of dogs" or dripping
water "to induce the misperception of drowning," the agent discussed
a plan to send the detainee to Jordan, Egypt or an unspecified third country
for interrogation. "In as much as the intent of this category is to utilize,
outside the U.S., interrogation techniques which would violate [U.S. law] if
committed in the U.S., it is a per se violation of the U.S. Torture Statute,"
the agent wrote. "Discussing any plan which includes this category could
be seen as a con-spiracy to violate [the Torture Statute]" and "would
inculpate" everyone involved.
A senior FBI official, who asked not to be identified because the issue is
sensitive, said the memo was not an official bureau legal conclusion. Its author
was at Gitmo to advise on interrogation techniques, not to render legal opinions,
the official said. (The memo's author, a former New York City prosecutor, declined
to comment to NEWSWEEK.) But another senior U.S. law-enforcement official familiar
with the memo, who also asked not to be identified, said the memo reflects concerns
among many agents and lawyers about "rendition." Intel officials estimate
that more than 100 terror suspects have been rendered to foreign countries by
the CIA under a classified directive signed by President George W. Bush after
9/11. A senior U.S. intelligence official, who asked not to be identified because
the program is classified, said rendering suspects to their country of origin
can aid intel because local interrogators speak the language better and understand
the cultural sensitivities of the suspects. "No one is sent anywhere for
the purpose of being tortured," the official said. A Pentagon spokesman
said the Defense Department does not engage in renditions, but officials have
confirmed that 65 detainees have been transferred from Guantanamo for further
detention or prosecution by foreign governments, including 29 to Pakistan, seven
to Russia, five to Morocco and four to Saudi Arabia—countries the State
Department criticizes for practicing torture.
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