In an earlier post I noted that SERE psychologist Bruce Jessen circulated a memo on "exploitative" techniques in April of 2002, months before Jay Bybee's August 2002 memo declaring such techniques "legal." Jane Mayer reports that FBI agents may have been present for an interrogation where torture was used prior to the Bybee memo--which prompted FBI Director Robert Mueller to tell his agents to "stay away."
By June 2002—again, months before the Department of Justice gave the legal green light for interrogations—an F.B.I. special agent on the scene of the interrogation of Abu Zubaydah refused to participate in what he called “borderline torture,” according to a D.O.J. investigation cited in the Levin report. Soon after, F.B.I. Director Robert Mueller commanded his personnel to stay away from the C.I.A.'s coercive interrogations.
We know that the OLC was working backward from the conclusion that torture was legal in order to justify its use in the future. Mayer's reporting suggests the policy that they may have been retroactively declared torture legal after it was already being used. Theoretically, interrogators who used such methods before the OLC gave its blessing wouldn't be entitled to the blanket immunity Eric Holder offered last week. Holder specifically said in his statement that "it would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department."
But what if it wasn't sanctioned in advance? What if it was already happening?
-- A. Serwer
