Justice Dept. reviews its OK of waterboarding

The Baltimore Sun

WASHINGTON -- The Justice Department revealed yesterday that its internal ethics office was investigating the department's legal approval for waterboarding of al-Qaida suspects by the Central Intelligence Agency and was likely to make public an unclassified version of its report.

The disclosure by H. Marshall Jarrett, the head of the department's Office of Professional Responsibility, was the first official acknowledgment of an internal review into the department opinions since 2002 that authorized waterboarding and other harsh interrogation methods.

His report could become the first public accounting for legal advice that endorsed methods denounced as torture by human rights groups and legal experts.

His office can refer matters for criminal prosecution. Legal experts said the most likely outcome was a public critique of the legal opinions on interrogation. Jarrett has the power to reprimand or to seek the disbarment of current or former Justice Department attorneys.

The secrecy that long concealed the CIA's secret interrogation program and its legal underpinnings has gradually broken down.

The CIA director, Gen. Michael V. Hayden, publicly admitted for the first time two weeks ago that the agency used waterboarding in 2002 and 2003 in the interrogation of three al-Qaida suspects. He said that the technique is no longer used and that its legality under current law is uncertain.

The tactic, which has been used since the Spanish Inquisition and has been found illegal in the past by U.S. courts, involves water poured into the nose and mouth to create a feeling of drowning.

After Hayden's acknowledgment, Attorney General Michael B. Mukasey rebuffed demands for a criminal investigation of interrogators who used waterboarding or of their superiors, saying CIA officers could not be prosecuted for actions the Justice Department had advised them were legal. Jarrett's review focuses on the government lawyers who gave that advice.

Prosecutors and FBI agents are conducting a criminal investigation of the CIA's destruction in 2005 of videotapes of harsh interrogations. A week ago, Congress passed a ban on coercive interrogations, which President Bush has said he will veto.

Jarrett did not say when his investigation might conclude. He did not respond to a request yesterday for an interview.

He wrote in a letter to two Democratic senators - Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island - that the legal advice approving waterboarding was one subject of an investigation into "the circumstances surrounding the draft-ing" of a Justice Department memo that declared that interrogation methods were not torture unless they produced pain equivalent to organ failure or death.

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