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.
Judiciary text: http://judiciary.house.gov/news/100715.html