Author of Torture Memos Admits Some Techniques Were Not Approved By DOJ

Thursday 15 July 2010

by: Jason Leopold, t r u t h o u t | Report

Jay Bybee, the former head of the Department of Justice's Office of Legal Counsel (OLC) who signed two infamous August 2002 legal memos which authorized CIA interrogators to torture "war on terror" prisoners, told a congressional committee that more than a half-dozen of the tactics detainees were subjected to were not "authorized" by the DOJ.

In a closed-door interview May 26 with members of the House Judiciary Committee, Bybee, now a Ninth Circuit Appeals Court judge, said OLC did not approve of the use of diapering, water dousing, forcing a detainee to defecate on himself or wear blackout goggles, extended solitary confinement or isolation, hanging a detainee from ceiling hooks, daily beatings, or the use of loud music or noise.

In an investigative report published by Truthout on April 17, intelligence officials who spoke on condition of anonymity said Abu Zubaydah, the first high-value detainee captured after 9/11, was subjected to repeated sessions of "water dousing," a method that, at the time interrogators used it on Zubaydah, was described as spraying him with extremely cold water from a hose while he was naked and shackled by chains attached to a ceiling in the cell he was kept in at a black-site prison.

The OLC did not approve the use of water dousing as an interrogation technique until August 2004. Use of the method is 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 and died of hypothermia hours after being doused with water and left in a cold prison cell.

The use of blackout goggles is a sensory deprivation technique.Prolonged diapering was at one time included in a list of torture techniques the OLC had approved of in 2002. But it was removed, possibly because it may have resulted in a lengthy legal review and delayed the issuance of the torture memos. Yet it was OK'd by former CIA Director George Tenet, despite the fact it did not receive legal authorization from OLC.

According to declassified documents, published reports and interviews conducted by human rights organizations with prisoners over the past eight years, the CIA used the unauthorized torture tactics repeatedly on detainees in the custody of the agency. The unauthorized methods and the final 10 techniques Bybee said detainees could legally be subjected to amount to a violation of the Geneva Conventions and federal anti-torture laws.

Despite the fact that the memos have been condemned by Republicans, Democrats and several Bush administration officials and were withdrawn by Bybee's successor, Jack Goldsmith, Bybee still defended his work and said his critics have either "misread" or misinterpreted his legal analysis on presidential power.

"We might have been clearer in some places," Bybee said, according to a copy of the 283-page interview transcript released Thursday by the House Judiciary Committee. "But, in terms of the analysis, I am going to stand by the memo."

Bybee, whose responses to questions appears to be an attempt to absolve himself of culpability, told Judiciary Committee members that interrogators who employed techniques that deviated from the guidelines contained in the torture memos he signed acted without the approval of OLC.

"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, " and the interrogation was not "authorized," Bybee said.

Moreover, Bybee said the memos prohibited the "substantial repetition" of torture techniques.

Justice Department documents and a report released by the CIA's Inspector General state that two high-value detainees, Zubaydah and self-professed 9/11 mastermind Khalid Sheikh Mohammed, were waterboarded 83 times and 183 times in the course of a single month.

Last month, the international doctors' organization Physicians for Human Rights (PHR) released a report that said "war on terror" detainees were used as human "guinea pigs" to gauge the effectiveness of various torture techniques. For example, PHR 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 administer the technique.

Closed-Door Interview

Bybee's interview was a closely guarded secret. Civil liberties and human rights organizations contacted by Truthout were unaware that the Judiciary Committee had met with the former Bush administration official. It's unclear why Rep. John Conyers (D-Michigan), the chairman of the Judiciary Committee, decided to conduct the interview privately rather than have Bybee testify publicly before the House panel.

Conyers conducted interviews behind closed doors with former Bush administration officials Karl Rove and White House Counsel Harriet Miers last year about their roles in the firing of nine US attorneys in December 2006. That arrangement was reached after months of legal wrangling that saw Rove and Miers ignore several congressional subpoenas citing executive privilege.

The Obama administration stepped in and brokered a deal between Rove, Miers and the Judiciary Committee that resulted in their closed-door testimony. By urging the former Bush administration officials and the Judiciary Committee to reach a settlement instead of litigating the matter, Obama's Justice Department lawyers avoided going to federal court and taking a position on George W. Bush's broad claims of executive privilege, which the former president said extended beyond his presidency.

Bybee's interview took place 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 Bybee and the torture memos' principal author, John Yoo, provided to the White House on so-called "enhanced interrogation techniques."

That report concluded that the legal advice Yoo, a law professor at UC Berkeley, 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 found 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 and who said he was "unpersuaded" by OPR's "professional misconduct" conclusion, which faulted Yoo and Bybee for their approval of brutal interrogation techniques that were used against terrorism suspects after the 9/11 attacks. Margolis changed the "misconduct" findings to "poor judgment."

OPR investigators said their probe, however, was hampered by the fact that Yoo's emails from July 2002 through August 5, 2002 - the time period in which the Bybee Memo was completed and the classified Bybee Memo was created - were deleted and "reportedly" not recoverable.

Bybee said he could not recall whether he took steps to make sure Yoo preserved his emails as required by federal law. According to the DOJ's website, emails are federal records if they:

• Document agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities
• Provide comments on or objections to the language on drafts of policy statements or action plans
• Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities

The DOJ rules for preserving records also said "the unlawful removal or destruction of federal records" could result in "criminal or civil penalties, fines and/or imprisonment."

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

Investigation

Conyers said Thursday the revelations Bybee made during the 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 US 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. Jerrold Nadler (D-New York), chairman of the Judiciary Committee's subcommittee on the Constitution and Civil Rights, who questioned Bybee during his appearance before the panel, said his "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, after he agreed to publicly release the Bybee/Yoo torture memos, that "those who [carried] out their duties relying in good faith upon the legal advice from the Department of Justice that they will 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."

Bybee's testimony, in which he acknowledges that techniques were used that OLC did not approve of, puts the pressure back on the White House and the Justice Department to investigate, since it suggests that interrogators were not relying upon the legal memos.

Brent Mickum, an attorney who represents several high-profile Guantanamo prisoners, including Zubaydah, who Bush administration officials had claimed was the No. 3 person in al-Qaeda and played a direct role in 9/11, 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 are not at all surprising.

"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 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 tell 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] 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," "has been involved in every major terrorist operation carried out by al-Qaeda," and was "one of the planners of the September 11 attacks." Bybee approved the harsh interrogation as necessary to thwart pending attacks on U.S. interests, which the CIA claimed Zubaydah knew about.

Throwing Yoo Under the Bus

Bybee was also harshly critical of his former colleague John Yoo, who he said 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" meetings. Bybee told the Judiciary Committee that, based on the information he now has, he is "worried" that Yoo was far too close to the White House and that interfered with his ability to provide the Bush administration with objective legal advice.

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 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 did not respond to email queries for comment.

Rep. Nadler said Yoo's "close relationship" with the Bush White House "warrants further investigation."