This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Jay Bybee, the Brigham Young University graduate who wrote a key memo with legal justifications for torture, penned the document based on bad information, according to a U.S. Senate report on torture released Tuesday.
In 2002, the CIA told Bybee that detainee Abu Zubaydah was the "third or fourth man" at the top of al-Qaida, that he was withholding information about a pending attack against the United States and that medical personnel would be on hand to stop any interrogations.
That led Bybee, who then was the assistant U.S. attorney general for the Office of Legal Counsel, to write an Aug. 1, 2002, memo stating that none of the interrogation methods the CIA planned to use would cause "severe pain," as outlawed in U.S. statutes making it a crime to torture.
Bybee wrote a second memo that day saying that even if an interrogator technically violated the statutes, he or she could argue the actions were necessary to defend the country. Bybee also said that charging an interrogator with a crime under the torture statute would be unconstitutional because it would violate the president's powers as commander in chief.
Both memos were then cited as justification to use the enhanced techniques on other CIA detainees.
Despite what was told to Bybee and the Justice Department, a CIA email on July 2, 2002, contradicted the information Bybee worked under, according to the Senate report.
The email said CIA officers did not believe Zubaydah was withholding information. Later, the CIA determined Zubaydah was not a member of al-Qaida.
Zubaydah is a Saudi citizen arrested in Pakistan in March 2002. He was held in the CIA prison network for about 4½ years. He was transferred to Guantanamo Bay, Cuba, in 2006 and remains there. Zubaydah, 41, has not been charged with a crime.
The Senate Select Committee on Intelligence released the executive summary of its report on torture Tuesday, five years after it began investigating the interrogation methods employed after the 9/11 attacks. The cover page shows the summary was approved Dec. 13, 2012, but a debate among the Senate, the White House and the CIA about whether or what to make public delayed any release for almost two years.
The summary criticizes the CIA for misleading the Justice Department, the White House, Congress and the public on the extent of torture and its effectiveness. The report found no evidence what the CIA called "enhanced interrogation" techniques stopped any terrorist attacks.
The Senate released only a 525-page summary and conclusion. Portions of that redacted the names of many CIA operatives or people who participated in the actual interrogations. There are no plans to release the other 6,700 pages of the report.
Bybee's name appears 21 times in the report. Most of those are in the footnotes referencing two memos he wrote on Aug. 1, 2002.
The report says the CIA also misled Bybee on how it would apply sleep deprivation to detainees. The agency said sleep deprivation was "unlikely" to cause hallucinations and medical personnel would intervene if a detainee did hallucinate. Sleep deprivation was one of 10 interrogation techniques Bybee approved in his memo.
But Senate investigators found multiple detainees subjected to sleep deprivation hallucinated, and the interrogators did not always halt the questioning.
"Our advice is based upon the following facts," Bybee's memo said, "which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply."
The report focuses on the CIA and does not engage in an analysis of whether Bybee's larger legal premise that U.S. self-defense justified torture was sound.
When Bybee's role was disclosed in 2004, it spurred legal debates and a buzz among Mormons about whether Bybee, a member of the Utah-based Church of Jesus Christ of Latter-day Saints, violated tenets of his faith.
Bybee did not return a message seeking comment Tuesday.
David R. Irvine a retired Army brigadier general and an attorney living in Utah who has written multiple opinion columns over the years opposing torture and the Bush and Obama administration's defenses of it questioned Tuesday whether Bybee's memo would have been different had he had accurate information.
In an interview, Irvine said the legal theory that torture is acceptable to defend the country and if the president signs off has no support in the treaties to which the United States belongs.
"That was one of the critical misjudgments attributed to that memo," Irvine said. "The entire line of reasoning in that memo is just dubious."
The Senate report did find some faults with the Department of Justice, where Bybee worked at the time.
"The Department of Justice did not conduct independent analysis or verification of the information it received from the CIA," the report says.
Bybee obtained a bachelor's degree in economics from BYU in 1977. He received a law degree from the LDS Church-owned school in 1980.
He is currently a judge on the 9th U.S. Circuit Court of Appeals, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and Guam. President George W. Bush nominated him and the Senate confirmed him in 2003, before the release of his torture memo.
Some Democratic senators have since said they would not have voted to confirm Bybee or might have blocked his confirmation had they known about the memo. The New York Times editorial board in 2009 called for Congress to impeach Bybee.
The Senate report did not discuss by name any other Utah figures who have been accused of aiding the torture of detainees.
Interrogation techniques approved in Jay Bybee's Aug. 1, 2002 memo
• Attention grasp grabbing person on both sides of collar in quick motion
• Walling pushing detainee into wall with neck roll in place to prevent whiplash
• Facial hold holding the detainees face in place with the interrogator's hands
• Facial slap (insult slap)
• Cramped confinement
• Insects placed in confinement box
• Wall standing
• Stress positions
• Sleep deprivation