Eager to show how aggressively it was revising U.S. counterterrorism policies, the White House released a statement two years ago touting its adoption of 37 of the 39 reforms recommended by the 9/11 Commission. But one of the two it rejected—to little fanfare—was the commission's recommendation that the U.S. comply with Geneva Conventions standards requiring "humane treatment" of captured terrorists. That decision, based in part on advice from Justice Department lawyers, led to a quiet but intense battle within the Bush administration. "This was doing more damage to our foreign policy than any other issue," says Philip Zelikow, the executive director of the 9/11 Commission who later served as senior counselor to Secretary of State Condoleezza Rice. "This was not just a matter of public opinion. It was having an effect on the cooperation we were getting on counterterrorism operations worldwide." Key European allies, he says, were balking at working with the United States on terrorist operations because of fears that their agents could be prosecuted for human-rights violations.
Zelikow's description of the bureaucratic battle follows revelations in The New York Times that the Justice Department secretly issued two opinions in 2005 explicitly authorizing the use of harsh interrogation practices on detainees, including head slapping, simulated drowning and subjection to frigid temperatures. The classified memos were closely guarded within the administration. At one point, says a U.S. intelligence official who asked not to be identified talking about sensitive matters, a senior Pentagon lawyer was evicted from a meeting, chaired by the then Attorney General Alberto Gonzales, to discuss the opinions. The memos were also a setback for Rice, who, according to Zelikow, "repeatedly" raised the issue with President Bush. But she found her progress blocked by Vice President Cheney.
But by late 2005, European officials were angry over disclosures that CIA officials had been interrogating prisoners at secret "black sites" in Eastern Europe. Meanwhile, U.S. officials began receiving reports that European military commanders were releasing captured terrorists in Afghanistan rather than subject them to U.S. interrogators, according to a former U.S. counterterrorism official who also declined to be identified. According to Zelikow and others, the battle continued. Then in July 2006, following the passage of legislation sponsored by Sen. John McCain, Bush finally agreed that the U.S. would adhere to Geneva Conventions standards.
The disclosure of the secret memos is likely to complicate next week's confirmation hearing for Michael Mukasey, Bush's nominee to replace Gonzales. Democratic lawmakers say they plan to press Mukasey on the issue and, in particular, elicit a commitment from him to replace Steven Bradbury, the author of the memos. But a White House official told NEWSWEEK last week that "there is no plan" to remove Bradbury.