The Distinction between Torturing Abu Zubaydah and al-Nashiri and Just al-Nashiri

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When Gina Haspel got nominated-by-tweet to be CIA Director, a lot of people pointed to a ProPublica story from last year reporting that Haspel was in charge of the CIA’s black site in Thailand from the start of the torture, and that she had taken glee out of Abu Zubaydah’s treatment. ProPublica has since retracted that story, based on public clarifications from people like James Mitchell.

The nomination of Haspel this week to head the CIA stirred new controversy about her role in the detention and interrogation of terror suspects, as well as the destruction of videotapes of the interrogation of Zubaydah and another suspect. Some critics cited the 2017 ProPublica story as evidence that she was not fit to run the agency.

Those statements prompted former colleagues of Haspel to defend her publicly. At least two said that while she did serve as chief of base in Thailand, she did not arrive until later in 2002, after the waterboarding of Zubaydah had ended.

The New York Times, which also reported last year that Haspel oversaw the interrogation of Abu Zubaydah and another detainee, Abd al-Rahim al-Nashiri, published a second story this week making the same point. It quoted an unnamed former senior CIA official who said Haspel did not become base chief until late October of 2002. According to the Times, she was in charge when al-Nashiri was waterboarded three times.

As they note, the story did correctly describe Haspel overseeing the coverup of the tapes.

In response, a lot of human rights activists have argued that it’s all the same: torturing one person is still torture, and the corrected story still puts Haspel in charge when Abd al Rahim al-Nashiri was waterboarded.

But that’s not correct in one important way.

The treatment of Abu Zubaydah clearly exceeded the techniques as laid out in the Bybee Memo, both in severity and repetition. We know far less about the specific details of Nashiri’s torture while he was still in Thailand. We know he was waterboarded three times. And we know that not even Liz BabyDick Cheney (who was torture-splaining John McCain yesterday for his concerns about Haspel) claims that waterboarding elicited useful information from Nashiri.

Nashiri would be treated using techniques, including threats from a drill, not authorized by the Bybee Memo, but that happened after he got shipped out to the next black site. There’s no currently public reason to believe Haspel was involved in that treatment.

So, while we can say with certainty that whoever tortured Zubaydah at the Thai black site and whoever oversaw it cannot claim to be relying on the OLC authorization to torture — because his treatment exceeded what got approved, we can make no such assertion with regards to Nashiri. That’s critically important for Haspel’s claim that she was just doing what DOJ authorized.

She still did oversee torture. She did oversee the destruction of the torture tapes (with legal sanction from the counterterrorism center’s own lawyers). But we don’t have evidence she oversaw torture that violated even the expansive guidelines approved by Jay Bybee.

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15 replies
  1. Charles says:

    Well, we do have the statement of a man who worked with her.

    JOHN KIRIAKOU: We did call her Bloody Gina. Gina was always very quick and very willing to use force. You know, there was a group of officers in the CIA’s Counterterrorism Center, when I was—when I was serving there, who—I hate to even make the accusation out loud, but I’m going to say it: who enjoyed using force. Yeah, everybody knew that torture didn’t work. That’s not even the issue. Lots of different things work. Was it moral, and was it ethical, and was it legal? I think the answers to those questions are very clearly no. But Gina and people like Gina did it, I think, because they enjoyed doing it. They tortured just for the sake of torture, not for the sake of gathering information.

    It’s dismaying that ProPublica published and is now forced to retract the claim that she was involved in the torture of Abu Zubaydah. But let’s hear what she did do. Not only may what she did also have exceeded the Bybee “limits,” whatever she did was almost certainly a crime under international law.

  2. Avattoir says:

    Whereas authorized waterboarding constitutes pointless infliction of pain, unauthorized waterboarding is worse.

    “At his trial, Gérard was sentenced to be brutally – even by the standards of that time – killed. The magistrates decreed that the right hand of Gérard should be burned off with a red-hot iron, that his flesh should be torn from his bones with pincers in six different places, that he should be quartered and disemboweled alive, his heart torn from his bosom and flung in his face, and that, finally, his head should be taken off …
    “Gérard’s torture was also very brutal. On the first night of his imprisonment Gérard was hung on a pole and lashed with a whip. After that his wounds were smeared with honey and a goat was brought to lick the honey off his skin with his rough tongue. The goat however refused to touch the body of the sentenced. After this and other tortures he was left to pass the night with his hands and feet bound together, like a ball, so sleep would be difficult. During the following three days, he was repeatedly mocked and hung on a pole with his hands tied behind his back. Then a weight of 300 metric pounds(150 kg) was attached to each of his big toes for half an hour. After this half hour Gérard was fitted with shoes made of well-oiled, uncured dog skin; the shoes were two fingers shorter than his feet. In this state he was put before a fire. When the shoes warmed up, they contracted, crushing the feet inside them to stumps. When the shoes were removed, his half-broiled skin was torn off. After his feet were damaged, his armpits were branded. After that he was dressed in a shirt soaked in alcohol. Then burning bacon fat was poured over him and sharp nails were stuck between the flesh and the nails of his hands and feet. …”

    https://en.wikipedia.org/wiki/Balthasar_Gerard

    The first part outlines what would amount to the righteous carrying out of a judicially pronounced sentence, while the second is just vile gratuitous torture, completely beyond what was authorized.

    The other value in this controversy is to increase the likelihood of the Senate in essence approving of her active participation in the unauthorized destruction of official records, as well as, with that, obstruction of justice.

  3. lefty665 says:

    “When we engaged in some of these enhanced interrogation techniques – techniques that I believe, and I think any fair-minded person would believe were torture – we crossed a line,” B Obama News conference 8/1/14   Nothing to see here folks, move right along. Look forward, don’t look backward.

    Where was she and what was she doing when Zubaydah was being tortured?  And before, and after, what were her assignments? What is her work history at the CIA? Oh never mind she/we just crossed a line, that’s all, no big deal. Certainly none of those patriotic individuals from the president down are individually culpable. She was just following orders, confirm her.  Wonder if anyone will come forward with how “Bloody Gina” got her nickname?

    https://theintercept.com/2018/03/15/washington-breaks-out-the-just-following-orders-nazi-defense-for-cia-director-designate-gina-haspel/

    • lefty665 says:

      You’re so funny, not. Got any more Onion links?

      Torture is torture, 83 times or 2. As Rugger9 observed the other day, we executed Japs for waterboarding. We also executed Nazis who tried the “I was only following legal orders” dodge to avoid guilt for war crimes. Yoo’s memos are not get out of jail free cards.

      Duhbya, Cheney, Yoo and the rest of them from his administration right down through Haspel’s level and below belonged in the dock for war crimes. Obama and Holder do too for acknowledging torture and failing to prosecute it.

  5. Guest says:

    Speaking of torture, as a European I keep being annoyed by this point that I see people bring up in USA that affirms that torture doesn’t work. I am pretty sure that torture does work (my point being: people will probably still be tortured regardless of this silly public idea of how “torture doesn work”). This argument I keep seeing that torture doesn’t work, seems to me to be trivializing the brutality and criminality of torturing people, or even, as I am about to point out, maybe “underneath” this talk about how torture doesn’t work, there is this hypocritical notion of simply accepting torture anyway.

    Even worse I think, for civilians and pundits to so to speak halfway acknowledge that one (one’s government) have been doing torturing on lots of people (iirc would have to incl. sitting on prisoners of war, packed in a sleeping bag, sitting on that guy’s face or chest, I forgot which), and yet, the interest in discussion ‘torture’ as such by commentators, seem to be a kind of attitude of being apologetic against the use of torture, maybe as if torture is only to be expected, and ofc, worse, to ultimately be something that oneself deemed acceptable, because oddly enough, torture would then just be this general abuse on this level of incompetence in either being a politician/public official making laws, soldier, and officer, or anyone having a responsibility of the leadership of the military forces in any way, like ‘the president’ or some leading military figure. Even worse still, as if torture is deemed something one would find acceptable in any case, because ones country would be so special and entitled to act with impunity in any case (as if thinking “but lets pretend we all feel better about ourselves if we don’t discuss this further”.

    Then, for discussing torture as events and phenomena so to speak, also there would be cases one could think of as being combination of torture and murder, like tossing people out of a helicopter in flight for them to die, something which was claimed to be happening by US soliders in the aftermath of the Vietnam war (ref. Winter Soldier documentary iirc).

  6. GKJames says:

    It’s a Washington tradition to rely on legalisms to justify the execrable (if you pour the water this way, it’s legal; if you pour it that way, it’s not…). Which is why finding a sycophant lawyer there to provide the necessary papering-up wasn’t, and still isn’t, that hard. (For Bybee, the sycophancy paid off; we have to feed that ignoramus for the rest of his life.) “I just did what the lawyers said was ok” is DC elevator music.

    Haspel will sing the same tune (with a chorus of approving nods and murmurs all around). Which means the legal route — “we are a nation of laws” and all that — will prove dissatisfying, as it always does in a system that sees “laws” as a la carte.

    Curious, though, is the perpetual absence of a challenge on grounds of incompetence. In the case of Haspel and her fellow band of merry men, they were enraged by their own impotent ignorance; torture was revenge for 9/11, pure and simple, because these people were clueless about virtually every aspect of what they were confronting. And with approvals from above to “take the gloves off” and eliminate constraints on behavior, it was only a short road to abuse.

    For my taxpayer money, that’s not what I want from what’s purported to be an intelligence apparatus. If the people running it are pathological types unable to stay focused on what they’re supposed to do, i.e., to obtain useful information effectively and without descending into criminality (I know, the lawyers said…), what’s the point? Naturally, she and her coterie of supporters will lay it on thick about how much vital information was gathered from the unfortunates (“though I can’t go into that in open session”). Congressional hens will cluck in wonderment at her selfless service to keeping her country safe. It’s public performance art, with two sets of psychos stroking each other.

    • Trip says:

      Sadists.

      Torture ‘by the book’ is still torture. But destroying evidence of that which went beyond ‘the book’, proves that they were always going to pretend that all torture was good torture by the book, and there is no proof otherwise. How they claim rogue actors at the bottom, while also claiming ‘only following orders’ from the top, is extremely bi-polar.

      One who accepts and carries out orders (as rationalization of actions) will only repeat this performance. Is that good enough as long as there is an excuse?

      Past behavior is the best predictor of future behavior. Or so ‘they’ say.

      She should be questioned about exactly WHAT she destroyed, the contents thereof and who was responsible, if not her.

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