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

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.

Despite diplomatic tensions, U.S.-Israeli security ties strengthen

By Glenn Kessler
Washington Post Staff Writer
Friday, July 16, 2010; A09

This week, Israel successfully conducted a test of a new mobile missile-defense system designed to shield Israeli towns from small rockets launched from the Gaza Strip. When the "Iron Dome" system is fully deployed in the next year, about half the cost -- $205 million -- will be borne by U.S. taxpayers under a plan advanced by the Obama administration and broadly supported in Congress.

While public attention has focused on the fierce diplomatic disputes between Israel and the United States over settlement expansion in Palestinian territories, security and military ties between the two nations have grown ever closer during the Obama administration.

Defense Secretary Robert M. Gates, who has worked decades in Washington, "believes we are cooperating on military-to-military relations in an unprecedented manner," Pentagon spokesman Geoff Morrell said.

Military relations were very close during the Bush administration, but "in many ways the cooperation has been extended and perhaps enhanced in different areas" during the Obama administration, a senior Israeli official acknowledged.

Elliott Abrams, a former senior Bush administration official and a frequent critic of the Obama administration's policy toward Israel, gives the White House high marks for its handling of the security relationship, saying it is "very smart" to insulate it from the diplomatic turmoil.

"It is the sounds of silence," he said. "I do not hear from Israeli officials and officers any griping, and that is in a context when there has been a lot of griping in the past year about everything else."
Long-term investment

U.S. officials portray the effort as a long-term investment designed to improve the prospects for peace and to make Israel feel less vulnerable to any threat posed by Iran.

"A secure Israel is better able to make the tough decisions that will need to be made to make peace," said Andrew J. Shapiro, assistant secretary of state for political-military affairs.

High-level exchanges of senior military and defense officials take place almost weekly -- more than 75 at the deputy assistant secretary level or above in the past 15 months, according to a Pentagon accounting. That results in an exchange of military and intelligence expertise that U.S. officials say is unique in the world.

The U.S. efforts in Iraq and Afghanistan draw on lessons learned and equipment developed by the Israelis in their conflicts -- and visa versa. Unmanned drones and the armoring of vehicles to protect against roadside bombs derive from Israeli technology, Israeli officials say.

"We exchange information and discuss developments in the region, and under this administration our communication has taken on a more frequent and intimate nature," Shapiro said. "It is a mutually beneficial exchange."

Solidifying those links, more than 1,000 U.S. soldiers last year participated in a joint missile-defense exercise in Israel last year known as "Juniper Cobra," the first such exercise involving boots on the ground between the two nations.

Besides Iron Dome, the United States provides about $200 million a year to two other Israeli missile-defense systems, known as Arrow and David Sling. The costs are shared 50-50, with the understanding that the United States will benefit from the Israeli experience.

"We have been working really closely with the Israelis on every tier of their missile-defense architecture, all the way from [the Hamas] Kassam [rocket] at the lowest level to the [Iranian] Shahab [ballistic missile] at the highest level," said a senior U.S. defense official, who spoke on condition of anonymity to discuss the breadth of cooperation.

Israeli Ambassador Michael B. Oren noted that the U.S.-Israel relationship is more than the sum of its military parts. "Security is more than financial support and cooperation on missile defense and joint maneuvers; security is also dialogue, and dialogue has been especially close and continuous with this administration," he said.

Under an agreement signed toward the end of the Bush administration, annual U.S. military assistance to Israel has been boosted from $2.5 billion in 2009 to $3 billion in 2011, meaning that almost a quarter of Israel's actual defense expenditures comes from the United States, according to Anthony H. Cordesman of the Center for Strategic and International Studies. Obama's Iron Dome money would be on top of that largesse, already the most military assistance to any country.

Unlike most other countries, which are required to use U.S. military assistance to buy U.S. weapons and technology, Israel is permitted to use 26 percent of the funds for the development and production of its own weapons. This arrangement gives Israel "five or six times the value per dollar as a country like Egypt or Jordan," Cordesman said.
Stockpile for Israel

The United States also maintains stockpiles of ammunition, spare parts, communication gear and other military items in Israel, which the Jewish state can draw on if it runs short during a war.

Because Israel has attacked without warning nuclear facilities in Iraq and Syria, experts inside and outside the Obama administration think that not halting Iran's nuclear program could prompt an Israeli military strike against that country.

Such an attack could prompt reprisals against American interests in the region, and U.S. officials hope the investment in close coordination with Israel will make a sneak attack less likely.

"Neither of us try to surprise each other but we try to coordinate on issues of mutual concern," President Obama told Israeli television this month.

"I don't think there is any question that the kind of relationship we have and the kind of intensity of contacts we have certainly breeds confidence in each other," a senior administration official said. "We have a partner who understands our interests and who we count on to be that cooperative partner going forward."