US: CIA Likely Let Contractors Perform Waterboarding

Interrogation Work Outsourced Heavily
Publisher Name: 
The Wall Street Journal

WASHINGTON -- The CIA's secret interrogation program has made
extensive use of outside contractors, whose role likely included the
waterboarding of terrorist suspects, according to testimony yesterday
from the CIA director and two other people familiar with the
program.

Many of the contractors
involved aren't large corporate entities but rather individuals who
are often former agency or military officers. However, large
corporations also are involved, current and former officials said.
Their identities couldn't be learned.


The broader involvement of contractors, and the likelihood they
partook in waterboarding, raises new legal questions about the Central
Intelligence Agency's use of the practice, which is designed to
simulate drowning. It also will fuel the contentious debate over the
administration's use of harsh interrogation techniques.





The role of contractors in sensitive security programs has become a
hot issue on Capitol Hill. It isn't clear what laws govern their work
and who is accountable when activities go awry, as they did when
employees of the security firm Blackwater allegedly killed 17 Iraqi
civilians and wounded 24 others in September. An investigation of that
is under way; Blackwater continues to provide security services to
State Department employees in Iraq.





In testimony before the House yesterday, CIA Director Michael V.
Hayden was asked whether contractors were involved in waterboarding al
Qaeda detainees. He replied: "I'm not sure of the specifics. I'll
give you a tentative answer: I believe so." An agency spokesman
declined to clarify the answer.


According to two current and
former intelligence officials, the use of contracting at the CIA's
secret sites increased quickly in the wake of the 9/11 attacks, in
part because the CIA had little experience in detentions and
interrogation. Using nongovernment employees also helped maintain a
low profile, they said. The sites were designed to handle only the
most sensitive detainees. Gen. Hayden has said fewer than 100 people
have been held at these sites.


In his comments yesterday, Gen. Hayden said that among the reasons the
agency eliminated waterboarding from its interrogation program was
that the legal landscape has changed.





"In my own view, the view of my lawyers and the Department of
Justice, it is not certain that that technique would be considered to
be lawful under current statute," he told lawmakers on the House
intelligence panel.





Gen. Hayden maintained that the practice was legal at the time the CIA
used it, from 2002 to 2003, on three al Qaeda suspects. "All the
techniques that we've used have been deemed to be lawful, he said.





The use of outside contractors raises awkward questions about
accountability. "The government may be prohibited from doing
something, but is a corporation?" asked R.J. Hillhouse, a former
political-science professor who has researched the outsourcing of
military and intelligence operations for her book "Outsourced."
Ms. Hillhouse said procurement law has traditionally differentiated
between the reporting responsibilities of government officers and
contractors.





Gen. Hayden, however, said private contractors involved in CIA
interrogations "are bound by the same rules" as the agency's
officers.



Lawmakers are concerned that using contractors in interrogations may
violate the law, or at least government policy, which states that
"inherently governmental activities" must be performed by
government personnel.





Jeffrey Smith, a former CIA general counsel, said it might make sense
to use contractors who have a language specialty to screen detainees,
for example. But waterboarding crosses into the realm of activities
only the government should perform.





"If we're going to ask contractors to do these things, then we
have to find a way to assure that they comply with the law and that,
to the extent we direct them to do activities that violate local law,
that we protect them," Mr. Smith said. He added that he opposes
the waterboarding.



Sen. Dianne Feinstein, a California Democrat, wrote to Attorney
General Michael Mukasey on Wednesday to ask his views on the legality
of involving contractors to program interrogations.





"I believe the interrogation of detainees falls squarely within
the definition of an inherently governmental activity," Sen.
Feinstein wrote. The 2006 Detainee Treatment Act includes a legal
shield for U.S. government employees who use officially authorized
interrogation techniques.





"It is not all that clear to me, given our experiences in Iraq,
that private contractors are held to the same standards as are
government employees," Rep. Jan Schakowsky, the Illinois Democrat
who asked Gen. Hayden about contractors' use of waterboarding, said in
an interview. "People who actually work for us are accountable to
us. Using employees of private companies to engage in what most of the
world anyway believes is torture, I find problematic."





The CIA established its detention sites in several countries,
including Thailand, Afghanistan and multiple countries in Eastern
Europe. Waterboarding reportedly took place in Thailand and possibly
other countries.





The Justice Department is currently investigating the CIA's
destruction of interrogation tapes that reportedly included footage of
waterboarding. Lawmakers have urged the department to expand its
inquiry to include a criminal inquiry of the technique. The attorney
general told a separate House committee yesterday he wasn't ready to
do that.





Providing additional details about the workings of the once highly
secret interrogation program, Gen. Hayden said, "was a very
difficult decision." He described the program as "a covert
action," which is perhaps the most secret type of operation the
agency does.





He said, however, it was time to talk more openly about the program
because it was being widely debated in public and "it was our
strong belief that the political discussion that was going on was
misshaped."


Write to Siobhan Gorman at
siobhan.gorman@wsj.com
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