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Bybee Faults CIA on Torture Excesses

By Jason Leopold
July 15, 2010

Jay Bybee, who as a senior Justice Department lawyer signed two memos in 2002 authorizing CIA interrogators to torture “war on terror” prisoners, told a congressional panel that more than a half dozen other brutal methods were used by the CIA without legal approval.

In a closed-door interview with members of the House Judiciary Committee on May 26, Bybee said his Office of Legal Counsel (OLC) did not allow the CIA to use diapering, water dousing, blackout goggles, extended solitary confinement, daily beatings, forcing a detainee to defecate on himself, hanging a detainee from ceiling hooks or subjecting prisoners to loud music or noise.

Bybee, who is now a federal appeals court judge in San Francisco, did sign off on a variety of other torture techniques, including the near-drowning experience of waterboarding. Prolonged diapering was included in a list of torture techniques that the OLC initially approved in 2002, but it was removed possibly because it might have resulted in a lengthy legal review.

Some of the techniques, including diapering, were permitted by CIA Director George Tenet and other senior agency officials despite the lack of clear OLC sign-off in 2002. Diapering and other abuses, such as water dousing, were cleared by the OLC later after Bybee left to become a federal judge.

Water dousing was believed to have played a part in the November 2002 death of Gul Rahman, a detainee who was held at an Afghanistan prison known as The Salt Pit. He died of hypothermia hours after being doused with water and left in a cold prison cell.

Bybee’s statement to the committee appeared to be an attempt to shift the blame for some illegal torturing onto the CIA.

“If the CIA departed from anything that it told us here, if it had any other information that it didn’t share with us or if it came into any information that would differ from what they told us here, then the CIA did not have an opinion from OLC,” Bybee said, according to the transcript of his interview released by the Judiciary Committee on Thursday.

Moreover, Bybee said his OLC memos prohibited the “substantial repetition” of harsh techniques. In 2005, however, one of Bybee’s successors, Steven Bradbury, permitted several of torture tactics to be used in combination.

The application of the torture techniques alone and in various patterns appears to have amounted to a form of human experimentation.

Earlier this year, the international doctors’ organization, Physicians for Human Rights, released a report that said waterboarding was monitored in early 2002 by CIA medical personnel who collected data about how detainees responded to the torture technique. The data was then used in a 2005 torture memo advising CIA interrogators how to refine the practice.

The doctors’ report also noted that CIA medical personnel obtained experimental research data by subjecting more than 25 detainees to a combination of torture techniques as a way of understanding "whether one type of application over another would increase the subjects' susceptibility to severe pain."

That medical analysis then informed "subsequent [torture] practices," the report said.

Criticizing Yoo

In the congressional interview, Bybee also was harshly critical of his former colleague John Yoo, the principal author of the torture memos as well as other opinions asserting that President George W. Bush could exercise unlimited powers as commander in chief during the "war on terror."

Bybee said Yoo had become far too close to the White House and thus compromised his ability to provide objective legal advice.

Bybee said Yoo was “at the White House on a regular basis” and was responsible for all of the discussion with the Bush administration on matters relating to torture. Bybee said Yoo never disclosed to him that he had been participating in top-secret White House “war planning.”

Last year, a report released by the inspectors general of the CIA, National Security Agency, Justice Department and Defense Department said Bush justified his warrantless wiretapping in the United States by relying on Yoo’s theories of unlimited presidential wartime powers and started the spying operation even before Yoo issued a formal opinion.

Bybee was quoted in that report as saying that Yoo was “the White House’s guy” on national security issues and complained that Yoo was “read into” the secret details of the classified Presidential Surveillance Program, while Bybee, was kept out of the loop.

In his interview with the Judiciary Committee, Bybee said he was concerned that “John was involved with the White House in a number of apparently war-planning things” that Bybee “was not aware of” at the time. Yoo, now a law professor at the University of California at Berkeley, did not respond to e-mail queries for comment.

Rep. Jerrold Nadler, D-New York, chairman of the subcommittee on the Constitution and Civil Rights, said Yoo’s “close relationship” with Bush’s White House “warrants further investigation.”

Despite the widespread criticism of the legal quality of the torture memos, Bybee still defended the work. “We might have been clearer in some places,” Bybee said. “But, in terms of the analysis, I am going to stand by the memo.”

Bybee’s May 26 interview with the House Judiciary Committee was treated as a closely guarded secret. Yet, it was unclear why Rep. John Conyers, D-Michigan, committee chairman, decided to conduct the interview privately rather than have Bybee testify publicly. Bybee’s status as a sitting federal judge may have been a factor.

Bybee sat down with committee members about three months after the Justice Department’s internal watchdog, the Office of Professional Responsibility (OPR), issued a long-awaited report on the legal advice that Bybee and Yoo provided to the White House on so-called “enhanced interrogation techniques.”

That report concluded that the legal advice that Yoo and Bybee gave the White House warranted stern punishment, including a recommendation to their state bar associations for possible disbarment.

In the OPR report, Yoo was found to have "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice."

Bybee was said to have "committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice."

But the judgment was softened by career prosecutor David Margolis, who was put in charge of the final recommendations. Margolis said he was "unpersuaded" by OPR's "professional misconduct" conclusion and changed the “misconduct” findings to “poor judgment,” thus avoiding the referral to state bar associations.

Lost E-mails

OPR investigators said their probe was hampered by the fact that Yoo’s e-mails from July 2002 through August 5, 2002, were deleted and "reportedly" not recoverable. Bybee said he could not recall whether he took steps to make sure Yoo preserved his e-mails as required by federal law.

Justice Department rules for preserving records state that "the unlawful removal or destruction of federal records" can result in "criminal or civil penalties, fines and/or imprisonment."

Conyers and Senate Judiciary Committee Chairman Patrick Leahy, as well as the good-government group Citizens for Responsibility and Ethics in Washington, have asked the Justice Department and the National Archives to investigate the document destruction.

Conyers said Thursday that Bybee’s revelations during the May 26 interview are “highly relevant to the pending criminal investigation into detainee abuse.”

Bybee’s “testimony reveals that many brutal techniques reportedly used in CIA interrogations were not authorized by the Justice Department – the author of these legal memos has now admitted this on the record,” Conyers said. “I have provided the Committee’s interview to the Justice Department and directed my staff to cooperate with any further requests for information.”

Last August, Attorney General Eric Holder expanded the mandate of John Durham, a U.S. Attorney from Connecticut who has spent more than two years investigating the destruction of 92 interrogation videotapes, to include about a dozen cases of torture that had been previously closed by Justice Department attorneys for unknown reasons.

Durham was authorized to conduct a preliminary review of those cases to determine if there is evidence that warrants a full-scale criminal inquiry.

Rep. Nadler, who questioned Bybee, said the “disclosures heighten the need for a special counsel to investigate the development and implementation of interrogation policies following the 9/11 attacks and, once again, I call upon the Department of Justice to ensure justice and accountability for these potentially grave abuses of executive power.”

The Obama administration has refused to allow the Justice Department to launch a full-fledged investigation into the Bush administration’s torture policies and has also pressured Congress not to hold public hearings delving into the matter.

President Obama said last year that “those who [carried] out their duties relying in good faith upon the legal advice from the Department of Justice” should not be subject to prosecution.

Holder added, “with regard to those members of the intelligence community who acted in good faith and in reliance with Justice Department opinions that were shared with them, it is not our intention to prosecute those individuals."

However, Bybee’s testimony, in which he acknowledges that abusive techniques were used that OLC did not approve, changes the picture since it suggests that interrogators were not relying upon the legal memos when they abused some detainees.

Doubts Linger

Still, Brent Mickum, an attorney who represents several high-profile Guantanamo prisoners, said he does not believe Bybee’s revelations will result in an investigation or a congressional hearing.

“Everything I know about our government, everything I know about the CIA, Department of Defense and the DOJ tells me they cannot be trusted,” Mickum said. “They simply do not tell the truth. When they are caught in a lie they change their story. We do not have a judicial system that will allow us to take a hard look at what been done and we have a Congress that has been asleep at the wheel.”

Mickum added that Bybee’s revelations were not surprising to anyone who had followed the torture scandal.

“Judge Bybee has made clear in his testimony that there were techniques employed that were not approved. I have known that for years,” Mickum said. “What was done to my client [Abu Zubaydah] was vastly worse than what was approved in the [Bybee] memo. But I can’t talk to you about that because the government hamstrings us by abusing the classification system and prevents me from telling you exactly what was done to [Zubaydah].

“My client was tortured before [Bybee’s] memo came out. My client was interrogated in ways that were not approved of by OLC and interrogated in ways that exceeded the OLC memo. I believe my client was tortured months and months before this [August 2002 OLC] memorandum ever came out. They knew he was tortured and they set about creating a record to make it appear he had not been tortured.”

In the torture memo, Bybee asserted that Zubaydah "is one of the highest ranking members of the al-Qaeda terrorist organization" and someone who "has been involved in every major terrorist operation carried out by al-Qaeda." The memo also called Zubaydah  "one of the planners of  the September  11 attacks."

Bybee indicated that he approved the harsh interrogation as necessary to thwart pending attacks on U.S. interests, which the CIA claimed Zubaydah knew about. The U.S. government has since backed off its claims about Zubaydah’s importance, now portraying him more as a travel agent for al-Qaeda than as a mastermind.

A version of this article also appeared at

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