Bybee, who before landing on the Ninth Circuit U.S. Court of Appeals headed the Justice Department’s Office of Legal Counsel, was briefed by the CIA in the summer of 2002 on the effects of waterboarding. The data presented to Bybee and his direct report, Boalt Hall professor John Yoo, had been gleaned from exercises the American military used to help its own personnel withstand the procedure. Based on that presentation, the lawyers gave the go-ahead to waterboard prisoner Abu Zubaydah.
But the inspector general’s report calls much of that data “irrelevant” in judging how the procedure would affect prisoners (hat tip: Washington Independent).
Of course, waterboarding guidance is only part of the legal advice doled out by Yoo and Bybee; critics would likely argue that this has no impact on the broad executive authority claimed by the OLC at the time, which was subsequently renounced as shoddy. But Legal Pad wouldn’t be surprised if Yoo and Bybee’s lawyers have used deficient CIA data as one of their talking points in convincing the Justice Department not to criminally investigate their clients.
— Dan Levine