By Jerry Markon and Peter Finn
Washington Post Staff Writer
Friday, July 16, 2010; A02
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.