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Ex-Justice official says limits on detainee questionings may have been exceeded
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.