Author of ‘torture memos’ says CIA exceeded limits in interrogations

The former Justice Department official who co-wrote the so-called torture memos testified that the department did not sanction some of the harsh methods the CIA used against detainees during the George W. Bush administration, including the repeated waterboarding of two suspected terrorists.

Jay S. Bybee, former head of the Justice Department’s Office of Legal Counsel, said in testimony released Thursday by the House Judiciary Committee that the CIA went further in its tough tactics than he had outlined as permissible in a widely criticized legal memoranda. Bybee appeared before the committee May 26.

For example, Bybee said, his memo, co-written with lawyer John C. Yoo, authorized waterboarding only if there were no “substantial repetitions.”

CIA contractors waterboarded Khalid Sheikh Mohammed, the professed mastermind of the Sept. 11 terrorist attacks, 183 times, government documents show. Government interrogators used waterboarding, an interrogation technique that simulates drowning, 83 times on Abu Zubaydah, an Al Qaeda associate whose status within the organization is disputed.

Among the other techniques reportedly used on CIA detainees that were not approved by the Justice Department, Bybee testified, were diapering a detainee, forcing a detainee to defecate on himself, forcing a detainee to wear blackout goggles, extended solitary confinement or isolation, hanging a detainee from ceiling hooks, daily beatings, spraying cold water on a detainee, and subjecting a detainee to high-volume music or noise.

“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 [Justice Department] authorization?” Bybee was asked by the committee.

“That’s right,” Bybee replied.

“So the answer is ‘yes?’ ” one lawmaker asked.

“Those techniques were not authorized,” Bybee replied.

The “testimony reveals that many brutal techniques reportedly used in CIA interrogations were not authorized by the Justice Department,” Rep. John Conyers Jr. (D-Mich.), chairman of the House Judiciary Committee, said Thursday. “The author of these legal memos has now admitted this on the record. These statements are highly relevant to the pending criminal investigation of detainee abuse.”

CIA spokesman George Little said: “Opinions from the Office of Legal Counsel were the foundation for the CIA’s past detention and interrogation practices. That program, now over, has been — and continues to be — the subject of extensive review. 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 month, Atty. Gen. Eric H. Holder Jr. said that Assistant U.S. Atty. John Durham is close to completing a preliminary criminal review of whether CIA agents or contractors violated the law in their use of brutal interrogation methods. Holder has said that the criminal investigation does not necessarily mean government interrogators will face charges.

President Obama, who banned waterboarding in interrogations, has said that CIA agents who were operating under Justice Department legal advice would not be prosecuted.

The CIA’s inspector general previously concluded, in a 2004 report that was heavily redacted when it was released last year, that agency interrogators on occasion went beyond what the Justice Department’s memos outlined as legal.

But Bybee’s testimony marks the first time either of the authors has publicly agreed with that assertion. Yoo, the other principal author, now a UC Berkeley law professor, did not respond to a request for comment.

Waterboarding involves water poured over the nose and mouth of an immobilized prisoner in a way that induces panic in hopes of getting the detainee to provide information. The technique dates to the Spanish Inquisition, and evidence of waterboarding by Japanese officers was used to convict them of war crimes after World War II.

Bybee was asked by the committee why he did not take into account past prosecutions over waterboarding when he authorized the CIA to use the technique. He testified that he did not think they were relevant.

In seeking permission to use the technique, the CIA explained that waterboarding was used in the training of U.S. Special Forces soldiers, Bybee said, and that it was 100% effective in getting them to cooperate during simulated interrogation sessions.

The 2004 CIA inspector general’s report concluded, however, that the way the CIA practiced waterboarding was harsher than the way it was applied to U.S. soldiers in training — which is the way Bybee said he and Yoo envisioned in their memos.

“The difference was in the manner in which the detainee’s breathing was obstructed,” the report said. “At the [military training] and in the [Department of Justice] opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the agency interrogator … continuously applied large volumes of water to a cloth that covered the detainee’s mouth and nose.”

CIA Director Leon Panetta, who opposed the criminal investigation of his agents, said last month that he believes “in the end, it’ll turn out to be OK.”

“Look, the CIA is an agency that has to collect intelligence, do operations. We have to take risks,” he said on ABC’s “This Week.” “And it’s important that we take risks, and that we know that we have the support of the government, and we have the support of the American people in what we’re doing.”

The Bybee-Yoo memos have long been criticized as a legal overreach, including by the pair’s successors in the Justice Department under the Bush administration. Critics said the memos did not offer an independent interpretation of the law on torture, but that Bybee and Yoo instead sought to authorize tactics, such as waterboarding, that previously had been considered out of bounds.

A separate Justice Department inquiry concluded this year that while both men used poor judgment, they should not lose their licenses to practice law. Bybee is now a federal judge in Las Vegas.

The memos analyzed lists of planned techniques and assumptions, including details about how frequently the techniques would be used.

Jameel Jaffer, deputy legal director of the ACLU, whose Freedom of Information Act lawsuits have pried loose crucial documents related to the interrogation programs, urged a full criminal investigation.

“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,” he said.

Richard A. Serrano in the Washington bureau contributed to this report.