The War Profiteers - War Crimes, Kidnappings & Torture
July 16th, 2010 - Lawyer: Some CIA Interrogation Tactics not OK’d
By Pete Yost
July 16, 2010
Washington - One of the key Bush administration lawyers in the evolution of the CIA's interrogation program cast doubt on whether the Justice Department approved some of the harsh steps the agency took to get terrorist suspects to talk.
Former Assistant Attorney General Jay Bybee's remarks were contained in a transcript sent to the special prosecutor investigating CIA interrogations by House Judiciary Committee Chairman John Conyers, D-Mich., who also made a copy public on Thursday.
Interviewed by Judiciary Committee members on May 26, Bybee stressed the limits that he helped set on how far the CIA could go while at the same time acknowledging that his legal advice helped pave the way for tactics such as waterboarding, which evokes the sensation of drowning.
"I do wish to repeat that we said on page 2 of the techniques memo ... that repetition will not be substantial" on waterboarding, Bybee reminded the committee in quoting from one of his own legal memoranda.
The professed mastermind of the Sept. 11, 2001, terrorist attacks, Khalid Shaikh Mohammed, was waterboarded 183 times. Terrorist suspect Abu Zubaydah was subjected to the procedure at least 83 times.
"We were not given any number of sessions as a range by the CIA," Bybee told the committee.
Now a federal appeals court judge, Bybee said there is "ambiguity" as to whether 83 and 183 refer to the number of times water was poured on a detainee, the number of sessions in which waterboarding was used or something else.
What the Justice Department lawyers advised was that if "there are substantial repetitions, we told the CIA 'you don't have a legal opinion from us'" providing legal protection for an interrogator's conduct, Bybee said.
Bybee was the head of the Justice Department's Office of Legal Counsel, which has been criticized by Bush administration critics as an enabler for abuse rather than a traffic cop telling the CIA not to violate legal prohibitions on torture.
Bybee's statements "are highly relevant to the pending criminal investigation of detainee abuse, and I have provided the committee's interview to the Justice Department," Conyers said in a statement.
The committee's top Republican, Rep. Lamar Smith of Texas, said he appreciated Bybee's "thorough effort to be truthful and forthcoming." Smith said the Democrats' agenda was to criticize Bush administration policies "that kept America safe."
In response Thursday, CIA spokesman George Little said: "Opinions from the Office of Legal Counsel were the foundation for the CIAs past detention and interrogation practices. That program, now over, has been - and continues to be - the subject of extensive review by the Department of Justice, among others. As the attorney general has said, the focus is to see if anyone involved in the program may have gone beyond the legal guidance Justice provided."
Last August, Attorney General Eric Holder appointed federal prosecutor John Durham to look into abuse allegations after the release of an internal CIA inspector general's report that revealed agency interrogators once threatened to kill a 9/11 terror suspect's children and suggested another would be forced to watch his mother be sexually assaulted.
President Barack Obama has said interrogators would not face charges if they followed legal guidelines. However, the inspector general's report said some CIA interrogators went beyond Bush administration restrictions that gave them wide latitude to use severe tactics, including waterboarding. Three high-level suspects underwent waterboarding scores of times.
The American Civil Liberties Union, whose Freedom of Information lawsuit helped make some of the interrogation documents public, said the criminal investigation should be expanded.
"Judge Bybee's testimony underscores what we've been saying for a long time: that the Justice Department should be conducting an investigation that encompasses not just low-level interrogators but senior government officials who authorized torture," said Jameel Jaffer, ACLU deputy legal director.
Bush administration officials obtained legal advice on the CIA's interrogation tactics by bringing lists of planned techniques, or assumptions, to Bybee's office for analysis.
Bybee was questioned on whether his office gave specific authorization for reported practices such as dousing detainees with water and repetitive noise or loud music to keep prisoners awake.
"So if these things occurred, dousing with cold water, subjecting to loud music to keep people from falling asleep, if that occurred, that means they were done without specific OLC authorization?" Bybee was asked.
"That's right," Bybee replied.
"So the answer is 'yes?'" a questioner asked.
"Those techniques were not authorized," Bybee replied.
Bybee subsequently modified his statements.
Under questioning about some of the reported techniques, Bybee said "the assumptions on which we were given this were not authorized specifically" by OLC. The transcript shows that Bybee later proposed a change in his testimony to say that "if the assumptions that we were given changed, they were not authorized specifically" by OLC lawyers.
Copyright © 2010 The Associated Press.
By Jerry Markon & Peter Finn
July 16, 2010
The former top Justice Department official whose office wrote memos blessing harsh interrogation techniques for terrorism suspects told congressional investigators that CIA interrogators might have exceeded the legal limits set by those memos.
Jay S. Bybee, who headed the department's Office of Legal Counsel, told investigators in May that he never approved some interrogation techniques that detainees say were used against them, including punching, kicking and dousings with cold water. Techniques his office did approve, such as waterboarding, or simulated drowning of terrorism suspects, were used excessively, Bybee said.
A CIA report released last year concluded that interrogators exceeded legal guidelines, but Bybee's voice carries particular weight because he wrote two of the Bush-era memos. His words, released by House Democrats, reignited the fierce political debate over the interrogations and whether those who authorized and carried them out should face criminal charges.
Judiciary Committee Chairman John Conyers Jr. (D-Mich.) sent to the Justice Department a transcript of Bybee's interview with the committee, saying Bybee revealed that "many brutal techniques reportedly used in CIA interrogations were not authorized" by the department.
Rep. Jerrold Nadler (D-N.Y.), called on Justice to expand its inquiry of interrogation practices by appointing a special counsel; the American Civil Liberties Union said the probe should extend to senior Bush officials.
But former and current CIA officials rejected that interpretation of Bybee's testimony. They said Office of Legal Counsel opinions, including his own, had provided legal backing for questioning terrorism suspects after the Sept. 11, 2001, attacks.
The question of whether interrogators stepped outside legal boundaries lies at the heart of the investigation into interrogation practices, one of the Bush administration's most fraught legacies.
In August, Attorney General Eric H. Holder Jr. expanded the mandate of Assistant U.S. Attorney John H. Durham to include the actions of CIA interrogators and contractors at "black site" prisons. Durham had been appointed the year before to investigate the destruction of videotapes of some of the interrogations; that probe is also continuing.
The release of Bybee's interview comes as Durham's inquiry appears to be reaching a critical stage. Holder said recently that Durham is close to finishing a preliminary review of whether there is a basis for criminal action and that the prosecutor would make recommendations to him within several months.
"What I made clear was that for those people who acted in conformity with Justice Department opinions from the Office of Legal Counsel that said you could do certain things … if people acted in good faith relying on Justice Department guidelines, those are not people we are looking at," Holder said after a June 17 speech at the University of the District of Columbia.
"The question is whether or not people went beyond even those pretty far-out OLC opinions," Holder said, according to a video of his remarks.
The Justice Department declined to comment Thursday, as did Bybee, now a federal appeals court judge in Nevada. A spokesman for Durham, Tom Carson, said only that the investigation is ongoing. One lawyer familiar with the case said Durham has been in "radio silence" in recent weeks.
Sources have said the Justice Department review of detainee abuse is focusing on a small number of cases. They include the 2002 death of a young Afghan man who was beaten and chained to a cold concrete floor without blankets at a secret CIA facility in Afghanistan known as the Salt Pit.
The review has generated criticism from Republicans and from former CIA directors, who argued it will inhibit intelligence operations and demoralize agency employees. Two teams of Justice Department prosecutors in the Bush administration had decided against a criminal inquiry.
In his closed-door testimony, Bybee suggested that the legal advice validating particular interrogation techniques applied only to Zayn al-Abidin Muhammed Hussein, the al-Qaeda operative known as Abu Zubaida, whose March 2002 capture led to the writing of the Aug. 1, 2002, memos. Abu Zubaida, who officials have said was waterboarded, was the first "high-value" detainee in CIA custody.
"Our memo was very, very specific to them that there were certain conditions, certain factual assumptions that CIA gave us, and that if they acted outside of those factual assumptions, that we had not issued an opinion to them," Bybee told the committee.
Christopher Anders, senior legislative counsel at the ACLU, said the testimony showed that subsequent interrogations - including those of Khalid Sheik Mohammed, the self-described Sept. 11 mastermind - were illegal because the memos did not provide legal protection, or a "golden shield,'' for interrogators. "They should have been going back for an opinion with every detainee that they wanted to interrogate, and because they didn't do that there is no 'golden shield,'" Anders said.
But John A. Rizzo, the CIA's acting general counsel at the time, said the agency was told shortly after the Aug. 1 memos were written that they could be used as legal backing to question other suspects. "It was a relatively short time after we got the memo that Justice advised us that if the same criteria and standards applied, the techniques are applied in the same way, the conclusions would be the same," Rizzo said.
The committee, citing testimony that detainees give to the International Committee for the Red Cross, asked Bybee if his memos had sanctioned prolonged stress standing, dousing detainees with cold water and "daily beatings," including punching and kicking. Bybee said that his office was not asked about such tactics and that the memos did not cover them.
The committee also pressed Bybee on whether the "substantial repetition" of waterboarding - 83 times in Abu Zubaida's case and 183 times for Mohammed - took it beyond Justice Department legal opinions and made it illegal.
"To the extent that the CIA departed from what they told us, yes, then we have not issued an opinion," Bybee said.
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