WSJ: Contractors Likely Involved in Waterboarding

There’s still plenty to learn. From The Wall Street Journal (sub. req.):

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….

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 use of contractors continues, CIA Director Michael Hayden has admitted. That led Sen. Dianne Feinstein (D-CA) to ask Attorney General Michael Mukasey for an answer as to whether it is legal for contractors to employ “enhanced interrogation techniques,” a question he said he didn’t know the answer to during the hearing last week. That letter is below.

February 6, 2008

The Honorable Michael B. Mukasey
Attorney General of the United States
United States Department of Justice
Washington, DC 20510

Dear Attorney General Mukasey:

During the Senate Judiciary Committee hearing on January 30, 2008, I asked you whether it would be legal for the Central Intelligence Agency to use a non-governmental employee, such as a contractor, to conduct an interrogation that entailed the use of so-called “Enhanced Interrogation Techniques.” You responded that you did not know the answer to my question.

In this regard I would call your attention to more recent testimony by General Michael Hayden, the Director of the Central Intelligence Agency. On February 5, 2008, Director Hayden testified to the Senate Select Committee on Intelligence that “there are times when the individuals involved [in conducting CIA interrogations] are contractors, and there are times when the individuals involved have been government employees. It’s been a mix.” He also testified that “[i]n many instances, the individual best suited for the task may be a contractor.”

There is a great deal of debate over the legality, effectiveness, and wisdom of using coercive interrogation techniques at all. That such interrogations are being conducted by non-governmental employees only increases those concerns.

In fact, the use of contract interrogators also appears to contradict the policies of this Administration. The Office of Management and Budget has established a policy that governs agency decisions in the area of contracting. OMB Circular No. A-76 (Revised May 29, 2003) states that “inherently governmental activities” must be performed by government personnel.

The OMB policy further clarifies that an inherently governmental activity involves “protecting and advancing economic, political, territorial, or other property interests by military or diplomatic action, civil or criminal judicial proceedings, … or otherwise.” The policy also states that, to avoid transferring inherently governmental authority to a contractor, a federal agency must consider factors including “the [contractor]’s authority to take action that will significantly and directly affect the life, liberty, or property of individual members of the public.”

I believe that the interrogation of detainees falls squarely within the definition of an inherently governmental activity. I would like answers to the following questions: Does the Department of Justice agree that such interrogations are an inherently governmental activity? What are the Department’s views on the legality of using contractors to perform interrogations involving so-called “Enhanced Interrogation Techniques”? And what are the Department’s views on whether contractors are protected by the provisions of the Detainee Treatment Act that protect U.S. Government personnel from retroactive liability for using officially authorized interrogation techniques?

I look forward to your response.

Yours sincerely,

Dianne Feinstein
United States Senator