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US: CIA Likely Let Contractors Perform Waterboarding

Interrogation Work Outsourced Heavily

by SIOBHAN GORMANThe Wall Street Journal
February 8th, 2008

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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