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Three Teenagers and a Journalist Attempt to Prosecute Bush for Torture

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Bush is in British Columbia today, giving a $100,000 speech.

Three men first captured when they were teenagers–Hassan bin Attash (Walid’s brother, who was captured when was 16 and remains in Gitmo), Muhammed Khan Tumani (who was captured when he was 17), and German-born Murat Kurnaz (who was 19 when he was captured)–and the Al Jazeera journalist, Sami al-Hajj, are using the opportunity to try to get Bush prosecuted for torture.

There are several interesting details from the filing. For example, they show that Americans used techniques at the Dark Prison (the Salt Pit)–spraying Attash with water–that were not permitted under the Bybee Memo and that were reportedly implicated in Gul Rahman’s death not long after. Attash was also physically beaten in Jordan during the period we were drumming up intelligence for the Iraq War because he did not provide the answers on WMD his interrogators wanted.

Nonsensically, the interrogators asked the youth question after question about weapons of mass destruction—nuclear, biological, and chemical. They also asked him about his brother, Walid bin Attash. When Hassan did not give the answers the interrogators wanted, they would beat him. Americans were present during these interrogation and beating sessions.

And, anticipating Abu Ghraib’s tortures, Attash was threatened with electrocution.

Read more →

Scott Horton: Glenn Carle’s “CAPTUS” Is Pacha Wazir

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As we’ve noted a couple times at EW, I will be hosting Glenn Carle to discuss his book, The Interrogator, at Saturday’s FDL Book Salon. As you no doubt know, his book describes his interrogation of what was described as a high level al Qaeda figure (the detainee wasn’t) and his objections to the government’s use of dislocation and other torture methods with him.

But Carle’s book doesn’t reveal the locations at which these interrogations took place, nor the detainee’s identity. So I wanted to make sure you had seen Scott Horton’s posts yesterday revealing those details.

As Horton describes, the detainee called CAPTUS in Carle’s book is actually a businessman by the name of Pacha Wazir who ran a hawala al Qaeda used.

As The Interrogator: An Education details, in the fall of 2002, Carle was the CIA case officer for a man identified as CAPTUS — but who was clearly Pacha Wazir — who had operated an informal money-changing and transfer business, known as a hawala system, that may have had customers with terrorist ties.

And the two locations described in the book are a location outside of Rabat, Morocco and Afghanistan’s Salt Pit.

As for the location of the initial rendition, the opening chapters of Carle’s book play out in an unnamed desert country where French and Arabic are spoken interchangeably, and where domestic intelligence services were holding terrorism suspects for CIA interrogation under a program a New York City Bar Association Report described as “torture by proxy.” “There is no doubt that Carle is talking about Morocco,” said John Sifton, an attorney who studied the CIA detentions program on behalf of Human Rights Watch and other organizations, and who travelled to Morocco in early 2006 to look into reports that the CIA was holding terrorism suspects there. “Most of the events described in the early chapters occurred in and around Rabat, which is where it appears the CIA detention arrangements were being carried out.”

In my interview with him, Sifton pointed to flight records from CIA aircraft used for detainee transport, which detailed several flights from Rabat to Afghanistan that matched the flight described by Carle in a chapter entitled “Methane Breathers” (a term he used to describe the CIA officers clad as ninjas who roughed up and humiliated Pacha Wazir on a Moroccan airstrip). The prisoner was then transferred to a CIA-run prison near Kabul. The description in Carle’s book perfectly matches existing accounts of the Salt Pit, a prison maintained by the CIA in an abandoned brick factory north of Kabul.

Horton has one of his “six question” interviews with Carle here. (If you haven’t already read Spencer’s interview with Carle, that’s well worth your time, too.)

In his posts, Horton also reminds readers that Wazir was first profiled in Ron Suskind’s One Percent Doctrine. Suskind describes how the CIA picked up Wazir just as he was attempting to meet with the FBI to explain his business.

The UAE’s central bank had done its job–too well. They’d gone ahead on their own and frozen Wazir’s assets. That was just the start. Wazir, seeing that his millions were frozen, called up the central bank, indignant. The head of the central bank told Wazir that he was under investigation by the FBI.

Cool customer that he was, Wazir expressed outrage. “Are there FBI agents in the country?” he asked the banker, who said, yes, right here in Dubai. “Well then, I’ll meet with them, and explain everything,” Wazir said. “I’m sure it’s just a mistake.”

[snip]

The next morning, a plump Emirates financier, in his white gown, vest, kufi cap, and fastidiously trimmed beard, left his palatial home in Dubai to travel downtown for his meeting with the FBI. In his driveway, he was greeted by a team of agents from the CIA. He went without a struggle.

After rendering Wazir, Suskind explains, the CIA reopened his hawala and used it to round up al Qaeda figures who had used the facility.

I will probably do a follow-up post next week to talk about some of the secondary implications of Carle’s book (I suspect Carle will be unable to address many of these issues):

  • What does it mean that he was never able to get the documents Wazir had with him when he was rendered (which he presumably intended to use to answer the FBI’s questions)?
  • What does it mean that he was at the Salt Pit not long after the Gul Rahman death?
  • What does it mean that two cables he sent criticizing the interrogation program got disappeared?
  • What do Carle’s disclosures say about the government’s successful attempt to dismiss Wazir’s habeas corpus suit?

But in the interim, for those of you reading the book in anticipation of the Book Salon, I wanted to make sure you had seen these details.

Whither Stephen Kappes?

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As I suggested yesterday, the investigation into Gul Rahman’s death means there’s a chance–teeny, presumably, but a chance nevertheless–that the investigation might move beyond the formerly-low level people implicated in the death (remember, both the guy who headed the Salt Pit and the station chief have gone onto bigger and better things at the CIA, so if they’re targeted in any case, it would be a bigger deal than any other prosecution).

The reasons why pertains, in significant part, to Stephen Kappes.

Jeff Stein laid out the reasons why in this profile of Kappes (which also emphasizes the degree to which he micromanaged issues during his tenure as Assistant Deputy Director for Operations from 2002-2004). As Stein explains, Kappes personally helped create cable traffic describing Gul Rahman’s death that would allow the CIA to claim his death was an accident.

According to an internal investigation, he helped tailor the agency’s paper trail regarding the death of a detainee at a secret CIA interrogation facility in Afghanistan, known internally as the Salt Pit.

The detainee froze to death after being doused with water, stripped naked, and left alone overnight, according to reports in the Washington Post and Los Angeles Times. He was secretly buried and his death kept “off-the-books,” the Post said.

According to two former officials who read a CIA inspector general’s report on the incident, Kappes coached the base chief—whose identity is being withheld at the request of the CIA—on how to respond to the agency’s investigators. They would report it as an accident.

“The ADDO’s direction to the field officer anticipated that something worse had occurred and so gave him directions on how to report the situation in his cable,” one of the former officials says.

“The ADDO basically told the officer, ‘Don’t put something in the report that can’t be proved or that you are going to have trouble explaining.’ In essence, the officer was told: Be careful what you put in your cable because the investigators are coming out there and they will pick your cable apart, and any discrepancies will be difficult to explain.”

As a result, the former official says, the Salt Pit officer’s cable was “minimalist in its reporting” on what happened to the prisoner. “It seems to me the ADDO should have been telling him, ‘Report the truth, don’t hold anything back, there’s an investigative team coming out, be honest and forthright. But that was not the message that was given to the chief of base by the ADDO.”

We know from Jay Bybee’s response to the OPR Report that from this cable traffic, CIA’s Counterterrorism Center wrote a declination memorandum

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager ofthe Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

Kappes coached the officer to craft the cable traffic to make Rahman’s death look like an accident, and then CTC (over which Kappes would also have had influence) then used those cables to repeat that claim.

Now that doesn’t mean that John Durham needed to or did get Kappes’ testimony about this coaching–or anything else that would directly implicate Kappes. But it does say that there is more evidence of a cover-up involving the highers up with Rahman than we know of with al-Jamadi (though don’t forget that hood that disappeared in al-Jamadi’s case, which is described in more detail here).

But it is worth remembering that Kappes left rather suddenly–and without as much fanfare as you’d expect–last April. At the time, Stein quoted sources tying Kappes’ fatigue with the job to investigations of the CIA, including torture investigations.

A congressional intelligence committee source said Kappes, 59, was feeling ground down.

There were “investigations of his interrogators,” the source said, and the White House was “taking away tools” in counterterrorism.

[snip]

Another former senior CIA official said Kappes’s resignation “has been in the works for some time. Why today? Not sure.”

“It’s been rumored for six months,” said another. “The idle speculation is that things have just gotten too complex with all the investigations going on.”

One way an investigation can get complex–and motivate someone to leave public service–is if a person is asked to testify. Which is not to say that happened–only that if Stein’s reporting is correct (indeed, if the IG Report focuses on the role of the cables in the report of the death), then Kappes should be a key witness in Durham’s investigation.

The importance of Kappes in any case Durham can make is wildarsed speculation at this point. But–even ignoring the missing hood in the al-Jamadi case–I suggest we think of recent developments as a three-fold development. Not only did DOJ reveal that Durham has an active investigation of Rahman’s death. But, as reported by Carrie Johnson, Durham is also consider false statements charges in the torture tape destruction.

Sources tell NPR the Justice Department is also looking at false statements charges against a CIA employee who may have lied about the destruction of interrogation videotapes.

And, as reported by Goldman and Apuzzo, sometime last month the CIA Inspector General was asking questions about the Khalid el-Masri case (though DOJ closed that case last year).

All those details may be unrelated. It’s best to assume they are. But there’s a hint of possibility that they tie together some higher effort to cover up these cases.

Gul Rahman and Manadel al-Jamadi Investigations: The New Information

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In his announcement that John Durham is investigating the deaths by torture of two CIA detainee, Eric Holder suggested that John Durham reviewed information that had not been reviewed by the prosecutors who had earlier declined to prosecute the cases.

That review included both information and matters that had never previously been examined by the Department.

He implied that one source of that new information might be some of the reports–among other things, the CIA IG Report and the OPR Report.

He identified the matters to include within his review by examining various sources including the Office of Professional Responsibility’s report regarding the Office of Legal Counsel memoranda related to enhanced interrogation techniques, the 2004 CIA Inspector General’s report on enhanced interrogations, additional matters investigated by the CIA Office of Inspector General, the February 2007 International Committee of the Red Cross Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, and public source information.

I wanted to look at what that new information might be.

Manadel al-Jamadi

The AP advances the issue in the case of Manadel al-Jamadi by reporting on what Lynndie England and other Abu Ghraib testified about at their grand jury appearance earlier this month (England’s testimony was first reported by Jane). Of note, the prosecutor asked who put al-Jamadi in the stress position that ultimately ended up effectively crucifying him–and asked questions about a hood that “disappeared.”

Another person who testified told the AP that prosecutors asked about a hood placed over al-Jamadi’s head that later disappeared and who shackled al-Jamadi’s arms behind his back and bound them to a barred window. This witness requested anonymity to avoid being connected publicly with the case.

As a threshold matter, if this person offered some new insight into the people personally involved in al-Jamadi’s asphyxiation–perhaps something that had been reflected in the IG report–then it might constitute new information. There’s also the question of how al-Jamadi’s treatment exceeded the torture John Yoo authorized; both the type of stress position used and the hood might qualify (and the importance of it would be reflected in the 2007 ICRC Report). We know, for example, that on May 26, 2010, Jay Bybee told the House Judiciary Committee that the CIA had not asked about–and so the Bybee Memo had not addressed–whether shackling someone to the ceiling fit the memo’s definition of a stress position.

Jerrold Nadler: Does Bybee Memo 2 or any other legal advice you gave at OLC authorize shackling a detainee to a hook in the ceiling as was described in my earlier question?

Jay Bybee: I don’t recall that any place in Bybee Memo 2 that we have addressed the question of shackling. So I don’t think it was one of the assumptions on which the CIA requested our advice. (Page 85-86)

So one new piece of evidence is Bybee’s testimony that he–and therefore Yoo–did not approve the crucifixion-type stress position that contributed to al-Jamadi’s death.

But that disappearing hood is worth noting by itself–it reflects an intent to cover up the crime.

Gul Rahman

I’m more interested in the possibly new information about Gul Rahman, because some reporting I’ve done reflects why DOJ revisited some of this.

As I noted here, amidst a discussion about prosecution declinations on PDF 72 of the second draft of the OPR Report, the OPR recommended reopening a specific declination because of the changed legal landscape.

The EDVA Memorandum was issued after the Bybee Memo had been publicly withdrawn, but before the Supreme Court’s decision in Hamdan. Accordingly. the prosecutors may have relied upon OLC’s erroneous determination that the War Crimes Act did not apply to suspected terrorists held abroad. We found no indication, however, that the EDVA declination decisions were revisited after Hamdan. In reviewing the declination decisions, the Department will have to determine whether prior OLC opinions and executive orders bar prosecution of these matters.

Now, this reference might refer to the death threats used with Abd al Rahim al-Nashiri (which today’s announcement suggests have been dropped), because that’s what the discussion preceding the four redacted pages immediately preceding this discussion treats. But we know from a footnote in Jay Bybee’s Second Response to the report that page 92 of the IG Report–that is, at least part of the second page of redaction–refers to the CIA’s argument that Rahman’s death shouldn’t be prosecuted, so it may well be Rahman. In any case, what’s key is that the OPR Report notes the EDVA’s reliance on OLC’s claim that crimes committed overseas couldn’t be prosecuted to be false.

That’s not the only “new” jurisdictional issue addressing whether crimes against Rahman could be prosecuted.

As I have written at length, the Bullet Point document–which appears to have been drafted as part of CIA’s information collection process in response to the IG Report and used as part of the declination process–also directly addressed whether crimes committed in the process of torture could be prosecuted. And one of the things included in it was the claim that no ordinary crimes (like negligent homicide, which would be relevant to Rahman’s death) could be prosecuted.

And in August 10, 2009. the 4th Circuit made it clear in David Passaro’s case that the Asadabad Firebase counted as a military mission at which US law applied. That’s precisely the kind of jurisdictional issue prosecutors used to decline the case in the past.

CIA officials referred the Salt Pit case to the Justice Department five years ago. Prosecutors concluded at the time that the Afghan prison was outside the reach of U.S. law, even though the CIA funded it and vetted its home-country guards.

Given that EDVA is in the same circuit, and given that Asadabad was less established than the Salt Pit, the fairly broad reading of this jurisdictional issue in Passaro’s case may impact Gul Rahman’s.

But the Bullet Point document is interesting for another reason that may pertain to Rahman’s death: because Rahman was reportedly water doused. Particularly given Holder’s emphasis on Yoo’s approvals, it’s relevant that the CIA stuck water dousing into the Bullet Point documents, after Rahman’s death, to suggest OLC had approved it as a torture technique.

But they hadn’t.

Which Bybee confirmed when he testified to HJC.

Nadler: Did Bybee Memo 2 or any other legal advice you gave at OLC authorize dousing detainees with cold water to keep them awake?

Bybee: Dousing with cold water was not one of the techniques that we were asked about in Bybee 2.

Nadler: So the answer is “no”?

Bybee: That’s right. (Page 104)

A full understanding of the Bullet Point documents, if the prosecutors didn’t already have one, would be one new factor making it possible to charge for water dousing and the subsequent death. But Bybee’s testimony would confirm that water dousing was not included in the Bybee Memos.

There’s some more, which I’ll get to in a subsequent post or three.

But for now, it looks like Durham has a few new details, a changed legal framework (because of Hamdan and, in Rahman’s case, possibly because of Passaro), and Jay Bybee’s testimony making it clear that the stress position and the water dousing that led to these detainees’ deaths had not been approved by OLC.

Two Dead Detainees May Get Justice. The Other 99 Will Not.

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Eric Holder just released an announcement revealing that John Durham has recommended criminal investigation of two detainees tortured to death. But cases of the remaining 99 detainees whose treatment Durham investigated will be dismissed.

On January 2, 2008, Attorney General Michael Mukasey appointed Assistant United States Attorney John Durham of the District of Connecticut to conduct a criminal investigation into the destruction of interrogation videotapes by the Central Intelligence Agency. On August 24, 2009, based on information the Department received pertaining to alleged CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. I made clear at that time that the Department would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. Accordingly, Mr. Durham’s review examined primarily whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute.

In carrying out his mandate, Mr. Durham examined any possible CIA involvement with the interrogation of 101 detainees who were in United States custody subsequent to the terrorist attacks of September 11, 2001, a number of whom were determined by Mr. Durham to have never been in CIA custody. He identified the matters to include within his review by examining various sources including the Office of Professional Responsibility’s report regarding the Office of Legal Counsel memoranda related to enhanced interrogation techniques, the 2004 CIA Inspector General’s report on enhanced interrogations, additional matters investigated by the CIA Office of Inspector General, the February 2007 International Committee of the Red Cross Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, and public source information.

Mr. Durham and his team reviewed a tremendous volume of information pertaining to the detainees. That review included both information and matters that had never previously been examined by the Department. Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. Those investigations are ongoing. The Department has determined that an expanded criminal investigation of the remaining matters is not warranted.

As I noted at the time I announced the expansion of Mr. Durham’s authority, the men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. However, I concluded based on information available to me then, and continue to believe now, that the Department needed to thoroughly examine the detainee treatment issue. I am confident that Mr. Durham’s thorough review has satisfied that need. [my emphasis]

We know one of these detainees is Manadel al-Jamadi. I haven’t heard the identity of the second; I’m betting it more likely to be Major-General Abed Hamed Mowhoush (though I’m trying to verify whose custody he was in when he died) than it is to be Gul Rahman. Update: Adam Goldman reports that the second detainee is Gul Rahman. That is rather surprising news, as it may implicate the chain of command.

But note the implication here?

Durham only considered investigating the death by torture of those killed in CIA custody. Which seems to suggest detainees killed while in military custody would not be investigated.

Oh well. I suppose as Americans we should be content that 2% of the people we torture to death might get justice.

Update: Thanks to Eric Jaffa for pointing out the murder/torture error in my last line.

Update: al-Jamadi’s name fixed.

Look Forward, and Promote the Torturers

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There’s Matt, who froze Gul Rahman to death in the Salt Pit. Paul, his boss and the CIA Station Chief of Afghanistan, who ignored Matt’s requests for more help at the prison. There’s Albert, who staged a mock execution of Rahim al-Nashiri, and his boss, Ron, the Station Chief in Poland, who witnessed the forbidden technique and did nothing to stop it. There’s Frances, the analyst who was certain that Khaled el-Masri had to be the terrorist with a similar name, and Elizabeth, the lawyer who approved Frances’ decision to have el-Masri rendered and tortured. There’s Steve, the CIA guy who interrogated Manadel al-Jamadi and, some say, effectively crucified him. There’s Gerry Meyer, the Baghdad station chief, and his deputy, Gordon, who permitted the ghost detainee system in Iraq. And of course, there’s Jennifer Matthews, the Khost station chief who ignored warnings about Humam Khalil Abu-Mulal al-Balawi that might have prevented his attack (and her own death).

These are the CIA officers responsible for the Agency’s biggest known fuck-ups and crimes since 9/11.

The AP has a story tracking what happened to those officers. And it finds that few were held accountable, particularly not senior officers, and even those who were reprimanded have continued to prosper in the agency.

In the years since the Sept. 11, 2001, terrorist attacks, officers who committed serious mistakes that left people wrongly imprisoned or even dead have received only minor admonishments or no punishment at all, an Associated Press investigation has revealed.

[snip]

Though Obama has sought to put the CIA’s interrogation program behind him, the result of a decade of haphazard accountability is that many officers who made significant missteps are now the senior managers fighting the president’s spy wars.

The AP investigation of the CIA’s actions revealed a disciplinary system that takes years to make decisions, hands down reprimands inconsistently and is viewed inside the agency as prone to favoritism and manipulation. When people are disciplined, the punishment seems to roll downhill, sparing senior managers even when they were directly involved in operations that go awry.

Paul–the guy who let the inexperienced Matt freeze Gul Rahman to death–is now chief of the Near East Division.

Ron–who watched Albert stage a forbidden mock execution–now heads the Central European Division.

Albert–who staged the mock execution–was reprimanded, left the CIA, but returned to the CIA as a contractor involved in training officers.

Frances–who insisted Khaled el-Masri be rendered and tortured–was not disciplined and now heads the CIA’s “Global Jihad” unit.

Elizabeth–the lawyer who approved el-Masri’s rendition–was disciplined, but has since been promoted to the legal adviser to the Near East Division.

Steve was reprimanded–not for his interrogation of al-Janabi, but for not having him seen by a doctor. He retired and is back at CIA as a contractor.

Gordon–the Deputy at the Baghdad station at the time of the worst torture–was temporarily barred from working overseas and sent to training; he’s now in charge of the Pakistan-Afghanistan Department of the Counterterrorism Center.

And, as the AP notes, several of these people are now among Obama’s key counter-terrorism advisors. (Of course, John Brennan, who oversaw targeting for Dick Cheney’s illegal wiretap program, is his top counter-terrorism advisor.)

No wonder Obama has no problem pushing our Egyptian torturer, Omar Suleiman, to lead Egypt. It’s completely consistent with our own practice of promoting our own torturers.

Gul Rahman: Another Case Where Torture (and Homicide) Failed to Elicit the Location of Extremist Leaders

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The US government has a long history of refusing to turn over evidence on its torture program, most recently when DOJ refused to cooperate with a Polish inquiry into the black site at which Khalid Sheikh Mohammed was waterboarded 183 times.

So it’s no surprise that they are refusing to turn over the remains of Gul Rahman–the detainee whom the CIA killed in the Salt Pit in 2002–to his family. (h/t Mary) The FBI is also refusing to turn over the autopsy report on Rahman’s death to the AP on account of the probably “pretend” investigation they’re conducting on it.

Assholes.

In addition to reporting that news, the AP reports the excuse the CIA is now giving for having killed Rahman in the first place.

Former CIA officials say Rahman was acting as a conduit between Hekmatyar and al-Qaida. Hekmatyar’s insurgent group is believed to be allied to al-Qaida. The former officials said the CIA had been tracking Rahman’s cell phone at the time of his capture and were hoping the suspected militant would provide information about Hekmatyar’s whereabouts.

But Rahman never cracked under questioning, refusing to help the CIA find Hekmatyar. Former CIA officials described him as one of the toughest detainees to pass through the CIA’s network of secret prisons.

Note the logic of this argument? For some reason, they couldn’t find Hekmatyar by tracking Rahman’s cell phone (Rahman was picked up long before Afghans got more aggressive about hiding their cell phone locations).

But if they couldn’t find Hekmatyar by tracking Rahman’s calls to him, then why were they so sure he knew where Hekmatyar was?

So now they’ve got to explain away his death because he was “one of the toughest detainees to pass through the CIA’s network of secret prisons,” and not because maybe he didn’t know the answer to the question they were asking, the location of Hekmatyar himself.

Of course, there’s a history of using the worst kinds of torture on detainees who don’t know or wouldn’t reveal the whereabouts of others, too. The location of Osama bin Laden, after all, is one of the things that KSM has said he lied about in response to his brutal torture.

And while we’re on the subject of lying, let’s return to what KSM has said he lied about while being tortured during his 2007 Combatant Status Review Tribunal.

… I make up stories just location UBL. Where is he? I don’t know. Then he torture me. Then I said yes, he is in this area of this is al Qaida which I don’t him.

Mind you, in KSM’s case, at least, Ali Soufan believes KSM could have been persuaded to reveal OBL’s location if only real interrogators had interviewed him.

KSM should consider himself lucky, I guess, that the government’s brutal torture in hopes of learning the location of top extremist leaders got slightly safer between the time they killed Rahman and wateboarded him a mere 183 times.

Jay Bybee Admits CIA Had No Approval for Water Dousing, Diapering

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On May 26, the House Judiciary Committee interviewed Jay Bybee about the circumstances that went into the Bybee Memos authorizing torture.  Here’s the transcript of that interview.

I’m going to read them in depth, but for now I wanted to point out this detail.

Bybee confirmed that a number of techniques reportedly used on CIA detainees were not approved by OLC:  These techniques include:  Diapering a detainee or forcing a detainee to defecate on himself, forcing a detainee to wear blackout goggles, extended solitary confinement or isolation, hanging a detainee from ceiling hooks, daily beatings, spraying cold water on a detainee, and subjecting a detainee to high-volume music or noise.  (Transcript of May 26, 2010, Interview of former Assistant Attorney General Jay Bybee at 75-78, 80-81, 86-90, 98-99.)

Spencer first wrote about the prolonged diapering here. I’ve written extensively about how CIA tried to fudge approval for water dousing (here’s an example, here’s what I wrote on Wednesday).

That is, it has long been fairly clear CIA did some things to detainees they had no authorization for. And in the case of Gul Rahman, one of those techniques (water dousing) killed him. Yet, reports say John Durham is finishing up, with not a squeak about prosecuting this death that–Jay Bybee says–had no OLC authorization.

In other words, this interview has Jay Bybee admitting that the CIA had no authorization for the techniques that contributed to Gul Rahman’s death. John Durham?

Did CIA Misrepresent Interrogation Policy to Court in Passaro Case?

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I wrote in my last post on David Passaro that he knew precisely how to defend himself (go here for general background on Passaro and his case). Even before he was indicted, Passaro asked for discovery on CIA’s rules of engagement for detainee interrogations, which he tied to SERE techniques well before the connection had been made publicly.

Which is why Passaro’s requests–and CIA’s refusals–for interrogation guidelines are so interesting. While much of those early discovery requests remain redacted, on November 18, 2004 Passaro requested:

  • All memoranda from OLC on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • All memoranda from CIA’s Office of General Counsel on the capture, detention, and interrogation of members of the Taliban, al Qaeda, or other terrorist organizations operating in Afghanistan
  • “[C]omplete contents of the rules of engagement for the CIA that address the capture, detention, and/or interrogation of the Taliban, al Qaeda, or other terrorist organizations or combatants operating in Afghanistan” including those categorized as “force protection targets”
  • “[A]ll written documents, photographs, video, and sound recordings that contain the methods employed in Afghanistan by members of CIA, DOD, or OGA for the capture, detention, and/or interrogation of members of the Taliban, al Qaeda, or other terrorist organizations, or other combatants operating in Afghanistan, including policies and guidelines developed in early 2003 for use by Special Operations forces“
  • “[A]ll orders, directives, and/or authorizations by President George W. Bush; ex-CIA Director George J. Tenet; the CIA Director of Operations; and the head of CIA’s Counterterrorist Center, Office of Military Affairs, or any other CIA component, that address the capture, detention, and/or interrogation of members of the Taliban, al Qaeda or other terrorist organizations or combatants operating in Afghanistan”
  • All information on Passaro’s training [my emphasis]

At some point (the document appears to have been sent on January 23, 2006), the government handed over the only such description it gave to Passaro’s team (see PDF 21), what they claim was a December 3, 2002 cable sent in support of operations in Afghanistan and along the Pakistan border.

When CIA officers are involved in interrogation of a detainee, the conduct of such interrogation should not encompass any significant physiological aspects (e.g., direct physical contacts, unusual mental distress, unusual physical restraints, or deliberate environmental deprivations)–beyond those reasonably required to ensure the safety and security of the detainee–without prior and specific headquarters guidance.

Now, the cable is interesting on its own right. It has not, to the best of my knowledge, appeared in any FOIA document dump or even Vaughn Declaration. Though we know that Langley sent a long cable to the Thai black site on November 30, 2002. And in the beginning of December there was cable traffic back and forth about closing that black site and destroying the torture tapes. The date certainly suggests the cable to Afghanistan might have been a response to Gul Rahman’s November 20, 2002 death at the Salt Pit, particularly with its prohibition on any “deliberate environmental deprivations.”

Note, too, the language the CIA used: “in support of ongoing CIA operations in Afghanistan and along the Pakistan border.” The reference to Pakistan sure sounds like a tacit admission that CIA was working in Pakistan already by that point.

But the really disturbing part of this document is CIA’s claim that this policy governed the interrogation of Abdul Wali in June 2003. After all,. the month after they sent this cable, George Tenet issued Guidelines to cover the CIA interrogation of detainees, guidelines that “control” over guidelines previously sent by the Directorate of Operations. That is, Tenet’s Guidelines, not the December 3, 2002 cable, would seem to have been the operative guidelines in June 2003.

And these guidelines, addition to approving, as “standard” two of the three initial techniques used with Abdul Wali (sleep and food deprivation), also describe a set of Enhanced Techniques for use with approval by Headquarters. At least three of these Enhanced Techniques–walling, abdominal slap, wall standing, and stress positions–were also, arguably, the treatment used with Wali. He was repeatedly slammed against a wall, hit in the stomach, and forced to do the “iron chair” for at least an hour at a time.

While the document, by itself, doesn’t say anything about whether or not the techniques would have been approved for use with Wali (I’ll look at that closer in a follow-up post), it does seem that the CIA deliberately refused to turn over to the defense a document that would have shown some of the treatment used with Wali was not only (with approval) acceptable, but for some techniques, “standard.”

Mind you, there are at least two ex parte filings that might include this document (or the other documents Passaro requested), one in November 2005 and one in January 2006. So the only question here is whether the government turned over the Tenet document to the Court, but not the defense.

But in any case, they certainly avoided admitting to the jury that CIA considered some of the techniques used with Wali standard.

“High Side” Cables and FOIA Responses

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As you’ll no doubt understand over the next week or so, bmaz and I have been comparing the case of David Passaro, the only CIA-related person to be prosecuted for detainee abuse, with what happened in Gul Rahman’s death at the Salt Pit. Passaro, a CIA contractor obviously trained in SERE-based interrogation techniques, was convicted of assaulting an Afghan, Abdul Wali, with his hand, foot, and flashlight, while interrogating him at the Asadabad firebase in Eastern Afghanistan in June 2003.

I’ll have a lot more to say about Passaro’s case in upcoming posts (short story, though, is his defense tested many of John Yoo’s favorite theories and lost). But for now, I wanted to point to two passages in this filing, which requests electronic communications evidence related to Wali’s interrogation and death. One thing it requests are transcripts of satellite phone calls from the Field.

The audio recordings and/or text documentation of the contents of satellite phone calls related to the events which prompted Wali’s surrender; his subsequent intake, detention, and questioning; his death; and all investigations into these events. Counsel for Mr. Passaro has learned that CIA operatives and contractors, members of Special Operations forces, and military intelligence unites, and members of other governmental agencies (OGA) frequently used satellite phones to communicate from this region of Afghanistan, and that the government maintains voice recordings of all satellite phone calls;

Granted, Afghanistan is apt to be more reliant on Sat Phone calls than–say–Thailand or Poland. But this request suggests there might be another set of documentation pertaining to (for example) daily authorizations for torture techniques in April and May 2002.

Then there is Passaro’s lawyer’s suggestion that the government has withheld what is called “high side” message traffic from him.

All message traffic to or from any member of a Special Ops (Special Forces, Delta Force, Navy Seals, etc.) or Military Intelligence unit, or OGA, related to the events which prompted Wali’s surrender; his subsequent intake, detention, and questioning; his death; and all investigations into these events. Counsel for Mr. Passaro has learned that members of these units [redacted] and submitted daily situation reports which detailed the detention and questioning of all detainees. Based on our review of the redacted messages the government submitted November 10, 2004, it appears that these messages–classified as “secret” and known as “low-side” traffic–originated from a member of the CIA. Message traffic to and from members of the units specified in this request were typically sent as “high-side” traffic and were sent independent from any CIA messages;

As I understand it, “high side” and “low side” refer to two different communication networks, Joint Worldwide Intelligence Communications System (JWICS) and Secret Internet Protocol Router Network (SIPRNet), respectively (I believe that’s what’s pictured in the image above). Stuff that’s Top Secret or TS/SCI has to go over the JWICS network because it’s more secure. And Passaro was complaining that he only got cables that were classified Secret, which, he suggested, meant the government had not turned over the cables that had been sent over JWICS.

Now, I’m more interested in what this means for public disclosures rather than Passaro’s case. Many of the cables we’ve seen referred to in CIA Vaughn Indices refer to Secret, not Top Secret cables. Since we’re getting just Secret cables, it suggests the possibility that we’re getting just “low side” communications, rather than the most sensitive communications.

The exception to that assertion–the one case where it appears CIA has described a whole bunch of Top Secret cables, actually raises even more concerns. The index of cables back and forth from Thailand to Langley from 2002 appears to show a batch of cables that are almost all Top Secret cables. But recall what Leon Panetta revealed in a footnote last year: that “many” of the cables were actually classified “Secret,” but that he was retroactively calling them “Top Secret.”

Then there’s the last bit, wherein cables originally classified as SECRET apparently have become TOP SECRET.

In his declaration, Panetta notes that some of the documents in the declaration were not marked properly:

Many of the operational communications were originally marked as SECRET in our communications database even though they should have been marked as TOP SECRET, and some of the miscellaneous documents were not properly marked. While we are not altering original electronic copies, this error is being corrected for copies printed for review in this case.

Given that Panetta uses the word “many,” I assume this means more than just the one operational cable from HQ to Field, dated November 30, 2002, that is marked SECRET on the CIA’s list of documents (I believe the other documents marked SECRET are what Panetta treats as “miscellaneous” documents). So, first of all, there’s the funny detail that the CIA has been representing these documents to be TOP SECRET to Judge Hellerstein since at least May 1, yet they’re only now getting around to telling him (now that they’re turning some over for his review) that they were originally actually marked SECRET.

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