“Michael Chertoff, who has been picked by President Bush to be the homeland security secretary, advised the Central Intelligence Agency on the legality of coercive interrogation methods on terror suspects under the federal anti-torture statute, current and former administration officials said this week.
Depending on the circumstances, he told the intelligence agency, some coercive methods could be legal, but he advised against others, the officials said.
Mr. Chertoff's previously undisclosed involvement in evaluating how far interrogators could go took place in 2002-3 when he headed the Justice Department's criminal division. The advice came in the form of responses to agency inquiries asking whether C.I.A. employees risked being charged with crimes if particular interrogation techniques were used on specific detainees.
Asked about the interaction between the C.I.A. and Mr. Chertoff, now a federal appeals court judge in Newark, Erin Healy, a White House spokeswoman, said, "Judge Chertoff did not approve interrogation techniques as head of the criminal division."
Ms. Healy added, "We're not aware that anyone in the criminal division was involved in approving techniques because that responsibility would have belonged in the Office of Legal Counsel," another Justice Department unit.
One current and two former senior officials with firsthand knowledge of the interaction between the C.I.A. and the Justice Department said that while the criminal division did not explicitly approve any requests by the agency, it did discuss what conditions could protect agency personnel from prosecution.
Mr. Chertoff's division was asked on several occasions by the intelligence agency whether its officers risked prosecution by using particular techniques. The officials said the C.I.A. wanted as much legal protection as it could obtain while the Justice Department sought to avoid giving unconditional approval.”
One technique that C.I.A. officers could use under certain circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning. Other practices that would not present legal problems were those that did not involve the infliction of pain, like tricking a subject into believing he was being questioned by a member of a security service from another country.
But Mr. Chertoff left the door open to the use of a different set of far harsher techniques proposed by the C.I.A., saying they might be used under certain circumstances. He advised that they could be used depending on factors like the detainee's physical condition and medical advice as to how the person would react to some practices, the officials said.
In responding, Mr. Chertoff's division said that whether the techniques were not allowed depended on the standards outlined in an August 2002 memorandum from the Office of Legal Counsel that has since been disclosed and which defined torture narrowly. That memorandum, signed by Jay S. Bybee, then the head of the legal counsel's office, said inflicted pain, for example, qualified as torture only if it was of a level equivalent to organ failure or imminent death.
The officials said that when the agency asked about specific practices, Mr. Bybee responded with a second memorandum, which is still classified. They said it said many coercive practices were permissible if they met the narrow definition in the first memorandum.
http://www.nytimes.com/2005/01/29/politics/29home.html?ei=5070&en=00e5813df151be21&ex=1108011600&pagewanted=all&position=
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