Jay Bybee. (Photo: U.S.
Government)
In a closed-door interview with members of the House Judiciary Committee on May 26, Bybee said his Office of Legal Counsel (OLC) did not allow the CIA to use diapering, water dousing, blackout goggles, extended solitary confinement, daily beatings, forcing a detainee to defecate on himself, hanging a detainee from ceiling hooks or subjecting prisoners to loud music or noise.
Bybee, who is now a federal appeals court judge in San Francisco, did sign off on a variety of other torture techniques, including the near-drowning experience of waterboarding. Prolonged diapering was included in a list of torture techniques that the OLC initially approved in 2002, but it was removed possibly because it might have resulted in a lengthy legal review.
Some of the techniques, including diapering, were permitted by CIA Director George Tenet and other senior agency officials despite the lack of clear OLC sign-off in 2002. Diapering and other abuses, such as water dousing, were cleared by the OLC later after Bybee left to become a federal judge.
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" prior to the issuance of the August 2002 torture memos. At the time interrogators used it on Zubaydah, water dousing was described by intelligence officials knowledgeable about Zubaydah's torture 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.
Water dousing was 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. He died of hypothermia hours after being doused with water and left in a cold prison cell.
Bybee's statements to the committee appeared to be an attempt to shift the blame for some illegal torturing onto the CIA.
"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," Bybee said, according to the transcript of his interview released by the Judiciary Committee on Thursday.
Moreover, Bybee said his OLC memos prohibited the "substantial repetition" of harsh techniques. In 2005, however, one of Bybee's successors, Steven Bradbury, permitted several of torture tactics to be used in combination.
The application of the torture techniques alone and in various patterns appears to have amounted to a form of human experimentation.
Last month, the international doctors' organization, Physicians for Human Rights, released a report that 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 refine the practice.
The doctors' report also noted that CIA medical personnel obtained experimental research data by subjecting more than 25 detainees to a combination of torture techniques as a way of understanding "whether one type of application over another would increase the subjects' susceptibility to severe pain."
That medical analysis then informed "subsequent [torture] practices," the report said.
Criticizing Yoo
In the congressional interview, Bybee also was harshly critical of his former colleague John Yoo, the principal author of the torture memos as well as other opinions asserting that President George W. Bush could exercise unlimited powers as commander in chief during the "war on terror."
Bybee said Yoo had become far too close to the White House and thus compromised his ability to provide objective legal advice.
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