Breaking The Will

One new piece of evidence: correspondence between Levin and U.S. appellate Judge Jay Bybee, who wrote memos about interrogation methods when he served as head of the Justice Department's Office of Legal Counsel six years ago. One of those memos, dated Aug. 1, 2002, gave an extremely restrictive definition of torture under U.S. law, concluding that only techniques that caused physical pain equivalent to "organ failure, impairment of bodily function, or even death" would be banned by a U.S. anti-torture law. Another Bybee memo dated the same day—and never publicly released—discussed the legality of particular methods, such as waterboarding. According to Senator Levin, senior Bush advisors, including then White House counsel Alberto Gonzales, and Vice President Cheney's chief lawyer David Addington, were consulted on the development of the legal analysis, which was developed by Bybee and another lawyer, John Yoo.

In his correspondence with Levin, Bybee confirmed that in July 2002, just prior to preparing his opinions, he was provided a CIA assessment of the "psychological effects of military resistance training." Bybee reviewed the assessment, which is still secret, with three other lawyers—including Yoo—and used it to "inform" his analysis about the legality of various interrogation techniques. His legal opinion was then provided to the CIA.

Paul Gimigliano, a CIA spokesman, said, "CIA provided, just as you would expect, information to the Department of Justice on interrogation methods being considered for use with hardened terrorists." An intelligence official, who asked for anonymity when discussing sensitive information, added: "Justice gathered facts and did its own legal research prior to formulating opinions. That's how it's supposed to work, and that's how it did work."

About the same time that Bybee was drawing up these memos, Jim Haynes, then the chief Defense department counsel, also requested a list of SERE training techniques and their psychological effects. After Haynes and other Pentagon lawyers reviewed the list—and received copies of the Bybee memos—Defense Secretary Donald Rumsfeld approved some of those methods for use on detainees at Guantánamo Bay.

Levin said the new documents and other material uncovered by his probe show how the abuses at Abu Ghraib in Iraq were not, as administration officials initially contended, the result of a "few bad apples" but in fact the result of deliberate administration policy. But there is still a host of outstanding questions about that policy and how it was created.

The Armed Services Committee's main brief was to investigate how aggressive interrogation techniques came to be used against detainees held by U.S. military forces in places like Abu Ghraib. The committee investigation did not specifically examine the use by the CIA of aggressive interrogation methods against "high-value" detainees like Khalid Sheikh Mohammed and top Al Qaeda operative Abu Zubaydah in a network of secret detention facilities overseas. Levin's committee had no jurisdiction to examine the CIA's interrogation program.

Congressional officials say the Senate Intelligence Committee has been conducting its own "review" of CIA interrogation practices. The Intelligence panel has also undertaken a formal investigation into why the CIA destroyed an extensive videotape archive of the interrogations of Abu Zubaydah and another high-level Al Qaeda operative who were subjected to "waterboarding by the agency." However, the intelligence committee has been proceeding carefully with this inquiry—and has refrained from interviewing key witnesses—due to a continuing investigation by Justice department prosecutors into whether any laws were broken when the tapes were destroyed.

© 2008