Posts

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

/15 Comments/in /by

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.

Leon Panetta and the Pakistani Doctor: Yet More Double Standards on Classified Information

/37 Comments/in , , , /by

As the Bill Gertz article I reexamined the other day made clear, Leon Panetta became personally involved in the CIA’s efforts to investigate detainee lawyers who were trying to track down their clients’ torturers.

CIA Director Leon E. Panetta and his chief of staff, Jeremy Bash, a former chief counsel for the House intelligence committee, at first were unaware of both the scope and seriousness of the case.

However, both officials began addressing the matter after inquiries were made from members of Congress. Since then, Mr. Panetta and Mr. Bash are getting regular updates on the dispute, said the officials.

As a result of that investigation, former CIA officer John Kiriakou was charged last week.

Consider the damage Kiriakou is alleged to have done:

  • Some lawyers with Top Secret clearance submitted a sealed filing naming a covert officer involved in the torture of 9/11 defendants. The lawyers pointedly did not photograph this officer in an effort to shield his identity. And his name was never made public.
  • Using information gained from Kiriakou and around 23 other sources (including former CIA Executive Director Buzzy Krongard), Scott Shane wrote an article detailing Deuce Martinez’ role in the interrogation of Khalid Sheikh Mohammed and others. And while Martinez’ association with the torture program was classified, his identity was not. Furthermore, by the time of the article, Martinez was working for Bruce Jessen and James Mitchell’s contracting firm, making it a pretty safe bet that he was involved in interrogation, even interrogations involving torture.
  • Subsequent to this article based on information from Kiriakou and 23 other people, the 9/11 detainees saw pictures of Martinez; assuming Shane’s article is accurate, they had already interacted with Martinez personally.
  • In that article, Shane included details about the “magic box” technology used to locate Abu Zubaydah. Information on that “magic box” technology and similar ones has been publicly available for decades, meaning the only secret here is that CIA uses it (!) and called it something as stupid as “magic box.”

That’s it. That’s the reported outcome of John Kiriakou’s leaks. And for that he faces prison time of up to 20 years.

Meanwhile, tomorrow the above clip will be shown on 60 Minutes, showing Panetta confirming that the Pakistani doctor who conducted fake vaccinations in Abbottabad, Pakistan in order to get a glimpse into Osama bin Laden’s compound was, in fact, working for the CIA.

Panetta also acknowledged that Shikal Afridi, the Pakistani doctor conducting health tests in the village in an effort to collect DNA and verify bin Laden’s presence, was in fact working for the U.S. Afridi was arrested and charged with treason by the government of Pakistan. “I’m very concerned about what the Pakistanis did with this individual…who in fact helped provide intelligence that was very helpful with regards to this operation,” says Panetta. “He was not in any way treasonous towards Pakistan…Pakistan and the United States have a common cause here against terrorism…and for them to take this kind of action against somebody who was helping to go after terrorism, I just think is a real mistake on their part,” he tells Pelley.

Not only does this presumably put more pressure on Pakistan to convict Afridi of treason (he remains in custody), but it exacerbates the problem of having used a vaccination campaign as cover in the first place, confirming on the record that similar campaigns in poor countries might be no more than a CIA front.

I presume someone in the White House gave Panetta permission to go blab this on 60 Minutes; I assume he’s in no more legal jeopardy than Dick Cheney was when he insta-declassified Valerie Plame’s identity.

But shit like this discredits every single claim national security experts make about the need for secrecy. I mean, how are CIA officers ever going to recruit any more assets when the assets know that the CIA director may, at some time in the future that’s politically convenient, go on 60 Minutes and confirm the relationship?

The US Training Manuals al Qaeda Used

/in , /by

Back in April 2009, I wrote a post outlining how purported al Qaeda training manuals formed the basis of Bruce Jessen and James Mitchell’s torture program.

The SASC Report on Detainee Treatment reveals that some information collected from al Qaeda–and not DOD’s attempts to find methods to interrogate detainees–is one key to discovering how we got in the torture business. The SASC report reveals (as Valtin has been pointing out for some time) that DOD first contacted JPRA–the unit that oversees SERE–for “information about detainee ‘exploitation’” on December 17, 2001. But there’s another reference that suggests James Mitchell–one of the two retired SERE psychologists who reverse-engineered SERE and oversaw the first interrogations–was already on the job. In the section, “JPRA Collaboration with Other Government Agencies” (meaning, CIA), this reference appears:

[classification redaction] In December 2001 or January 2002, a retired Air Force SERE psychologist, Dr. James Mitchell, [redaction that I bet talks about a CIA contract] asked his former colleague, the senior SERE psychologist at JPRA, Dr. John “Bruce” Jessen, to review documents describing al Qaeda resistance training. The two psychologists reviewed the materials, [half line redacted], and generated a paper on al Qaeda resistance capabilities and countermeasures to defeat that resistance.

Note, the “December 2001 or January 2002” date comes from an interview of Jessen, not directly from Mitchell. It’s not clear anyone has asked when Mitchell got the al Qaeda documents–but by the time Jessen was interviewed on July 11, 2007, DOD had already sent out notice to preserve all documents relating to Mitchell, so he was already under legal scrutiny at the time Jessen gave these dates.

In a section describing a DIA training session Jessen and Joseph Witsch did, it’s clear the al Qaeda documents form the basis for the training.

[classification redaction] Mr. Witsch stated that he worked with Dr. Jessen to develop a set of briefing slides for the [acronym redacted] training. The Department of Defense provided the Committee with slide presentations that appeared to have been produced by JPRA for the March 8, 2002 training. Mr. Witsch testified that the two slide presentations (1) [half line redacted–elsewhere this appears unredacted as Al Qaeda Resistance Contingency Training: Contingency Training for (redacted) Personnel] Based on Recently Obtained Al Qaeda Documents” and (2) “Exploitation” — appeared to be the same as those used by JPRA in the March 8, 2002 training. Dr. Jessen told the Committee that he did not recognize the slides as those that he presented [redacted] but that the vast majority of the slides were consistent with what he would have taught at the training session.

While the discussion of the slides connected with the al Qaeda documents is heavily redacted, it appears that these slides already attached techniques or objectives to interrogating al Qaeda detainees.

[classification redacted] The “Al Qaeda Resistance Contingency Training” presentation described methods used by al Qaeda to resist interrogation and exploitation and [half line redacted]. The presentation also described countermeasures to defeat al Qaeda resistance, including [~five lines redacted]. Mr. Witsch testified to the Committee that the countermeasures identified in the slides were “just an interpretation of what we were doing at the time and what we constantly did when we trained SERE students.”

So just to review. By “December 2001 or January 2002,” Mitchell already had documents presumably captured from al Qaeda, and he and Jessen proceeded to use those documents to develop a training session on interrogation (one they offered to both DIA and CIA). And al Qaeda’s resistance training–as much as SERE’s program–drove what “countermeasures” Mitchell and Jessen were recommending to the CIA and DIA.

In the comments to that thread, we discussed reports–including from Lawrence Wright’s Looming Tower–that al Qaeda member Ali Mohammed had taken training manuals from Fort Bragg.

He managed to get stationed at the John F. Kennedy Special Warfare Center and School at Fort Bragg, North Carolina. Even though he was only a supply sergeant, Mohammed made a remarkable impression, gaining a special condemnation from his commanding offier “for exceptional performance” and winning fitness awards in competition against some of the most highly trained soldiers in the world. His awed superiors found him “beyond reproach” and “consistently accomplished.”

[snip]

The American army was so respectful of his views that it asked him to help teach a class on Middle East politics and culture and to make a series of videotapes explaining Islam to his fellow soldiers. According to Mohammed’s service records, he “prepared and executed over 40 country orientations for teams deploying to the Middle East.” Meantime, he was slipping maps and training manuals off base to downsize and copy at Kinko’s. He used these to write the multivolume terrorist training guide that became al-Qaeda’s playbook. (205)

Which is just one reason this comment from Abu Faraj al-Libi’s Gitmo Detainee Assessment Brief so interesting.

(S//NF) Detainee said prior to 11 September 2001, al-Qaida gained its knowledge of guerrilla warfare tactics from reading translated US military manuals stored in what he described as the group’s vast Afghanistan-based library.

It seems to confirm AQ got its manuals–via some means–from American manuals. And while this reference mentions just “guerrilla warfare tactics,” presumably those tactics would include counter-interrogation strategies like the SERE program taught at Ft. Bragg. While I didn’t get this when I wrote my post in April 2009 (back then I said Mitchell and Jessen didn’t so much use SERE as al Qaeda’s own tactics), this may suggest Mitchell and Jessen used SERE techniques precisely because that’s what al Qaeda used.

I said this was interesting for a couple of reasons. As I noted in that earlier post, Mitchell and Jessen had a series of slides that talked not just about resistance to interrogation, but also resistance to exploitation. And as Jason Leopold and Jeff Kaye emphasized several weeks ago, exploitation (that is, recruitment for other purposes, such as propaganda or spying) is at the core of SERE (and therefore, the program Mitchell and Jessen developed from it).

[A]s Jessen’s notes explain, torture was used to “exploit” detainees, that is, to break them down physically and mentally, in order to get them to “collaborate” with government authorities. Jessen’s notes emphasize how a “detainer” uses the stresses of detention to produce the appearance of compliance in a prisoner.

[snip]

“The Jessen notes clearly state the totality of what was being reverse-engineered – not just ‘enhanced interrogation techniques,’ but an entire program of exploitation of prisoners using torture as a central pillar,” [retired Air Force Capt. Michael Kearns, who provided these notes] said. “What I think is important to note, as an ex-SERE Resistance to Interrogation instructor, is the focus of Jessen’s instruction. It is exploitation, not specifically interrogation. And this is not a picayune issue, because if one were to ‘reverse-engineer’ a course on resistance to exploitation then what one would get is a plan to exploit prisoners, not interrogate them. The CIA/DoD torture program appears to have the same goals as the terrorist organizations or enemy governments for which SV-91 and other SERE courses were created to defend against: the full exploitation of the prisoner in his intelligence, propaganda, or other needs held by the detaining power, such as the recruitment of informers and double agents. Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.” [my emphasis]

Mind you, all we know for sure from al-Libi’s statement is that he told his interrogators that the al Qaeda manuals derived from American ones. That doesn’t necessarily mean al Qaeda used manuals on the SERE program, nor does it change the importance of reporting that Mitchell and Jessen designed this torture program so as to use detainees for propaganda and recruitment purposes.

But al-Libi’s confirmation sure does make these connections more likely.

Excluding Atheists from the Military Just as You Let Gays Openly Serve

/in /by

Let me try this one out on you. The guy whose “Learned Helplessness” theories made it possible for Bruce Jessen and James Mitchell to make a killing (heh) on torturing detainees has figured out a way to make a killing–$31 million in sole source funds–himself: with an untested “Learned Optimism” program that claims to make sure those in the military who are on their fourth deployments in the most dangerous parts of the empire are happy being on those deployments.

Or at least don’t kill themselves or others because of PTSD.

But Martin Seligman’s program not only has not been proven to do what it claims to do, but it also has a built-in religious aspect to it, such that atheists have to undergo extra counseling because they didn’t answer affirmatively to the statement, “I am a spiritual person, my life has lasting meaning, I believe that in some way my life is closely connected to all humanity and all the world.”

That’s the story Jason Leopold tells in his latest article.

Soldiers fill out an online survey made up of more than 100 questions, and if the results fall into a red area, they are required to participate in remedial courses in a classroom or online setting to strengthen their resilience in the disciplines in which they received low scores. The test is administered every two years. More than 800,000 Army soldiers have taken it thus far.But for the thousands of “Foxhole Atheists” like 27-year-old Sgt. Justin Griffith, the spiritual component of the test contains questions written predominantly for soldiers who believe in God or another deity, meaning nonbelievers are guaranteed to score poorly and will be forced to participate in exercises that use religious imagery to “train” soldiers up to a satisfactory level of spirituality.

Griffith, who is based at Fort Bragg, North Carolina, took the test last month and scored well on the emotional, family and social components. But after completing the spiritual portion of the exam, which required him to respond to statements such as, “I am a spiritual person, my life has lasting meaning, I believe that in some way my life is closely connected to all humanity and all the world,” he was found to be spiritually unfit because he responded by choosing the “not like me at all” box.

His test results advised him, “spiritual fitness” is an area “of possible difficulty for you.”

The military, mind you, is trying to avoid admitting it has a First Amendment problem by refusing to say the word “spiritual,” even when that’s one of five core measurements.

Brig. Gen. Rhonda Cornum, the director of the CSF program, has said, “The spiritual strength domain is not related to religiosity, at least not in terms of how we measure it.”

“It measures a person’s core values and beliefs concerning their meaning and purpose in life,” she said. “It’s not religious, although a person’s religion can still affect those things. Spiritual training is entirely optional, unlike the other domains. Every time you say the S-P-I-R word you’re going to get sued.

Now, I’m all in favor of trying to address our PTSD problem–though I’m skeptical that the way to do so is to “teach[] its service members how to be psychologically resilient and resist ‘catastrophizing’ traumatic events.”

But even aside from all the other offensive parts of this story, wouldn’t you prefer someone whose meaning and purpose in life was the military (or patriotism)? Doesn’t selecting for spirituality conflict, at least in some cases, with the trained abstraction of others that enables you kill someone else?

More Cheney Get Out of Jail Free Costs: Mitchell and Jessen’s $5 Million Indemnity Agreement

/57 Comments/in /by

The AP has a story on Mitchell and Jessen’s torture defense. The lead of the story describes how CIA protected the torturers both by paying all of their defense costs–up to $5 million–as well as paying it directly out of CIA funds.

But there’s an interesting sub-narrative. The piece describes how, in addition to just waterboarding Rahim al-Nashiri twice (even Dick Cheney has implicitly admitted that waterboarding did not work), Mitchell and Jessen also successfully argued against waterboarding Ramzi bin al-Shibh.

Mitchell and Jessen successfully argued against waterboarding admitted terrorist Ramzi Binalshibh (RAM’-zee bin-al-SHEEB’) in Poland, the official said.

And then when it came time to waterboard Khalid Sheikh Mohammed 183 times, Mitchell and Jessen played a somewhat different role.

The role of Mitchell and Jessen in the interrogation of confessed Sept. 11 mastermind Khalid Sheikh Mohammed is a bit murkier.

At least one other interrogator was involved in those sessions, with the company providing support, a former official said. Mohammed was waterboarded 183 times in Poland in 2003, according to documents and former intelligence officials.

Remember, too, that authority over the torture program within the CIA also shifted around this time, and that after al-Nashiri was deemed compliant originally, analysts came in and used the kind of death threat that even John Yoo said was torture. And of course, over the period, the CIA decided it was probably a good idea not to film their torture sessions.

All of which suggests there was some regret or recognition that the torture program wasn’t such a good idea.

Read more →

The AP’s “Most Complete Published Account” that Leaves Out Torture

/in , /by

The AP’s DOJ and intelligence writers have a story out on the Durham investigation that purports to be “the most complete published account” of the destruction of the torture tapes. Only, it ignores key details that have already been published which paint a much more damning picture of the tapes and their destruction.

First, the news. The AP story does reveal the following new details:

  • The name of the guy in Thailand–then station chief Mike Winograd–involved in the destruction of the tapes
  • The news that the guy who destroyed the torture tapes–former CTC and Clandestine Services head Jose Rodriguez–is still lurking around Langley as a contractor with Edge Consulting
  • The observation that Rodriguez did not include the two CIA lawyers who “approved” the torture tape destruction (Steven Hermes and Robert Eatinger, who have been identified before) on his order to destroy them, which is perceived within CIA as highly unusual
  • The hint that prosecutors may use Sarbanes-Oxley to establish the requirement to keep the tapes as well as the detail that John Durham has prosecuted two of the only half a dozen cases that have used this Sarb-Ox provision
  • A list of reasons why all the requests that should have covered the tapes purportedly don’t:

_In early May 2003, U.S. District Judge Leonie M. Brinkema told the CIA to reveal whether there were interrogation videos of any witnesses relevant to the case of Zacarias Moussaoui, who was charged as a Sept. 11 conspirator. But that order didn’t cover Zubaydah, who Brinkema ruled was immaterial to the Moussaoui case, so the CIA didn’t tell the court about his interrogation tape.

_A judge in Washington told the agency to safeguard all evidence related to mistreatment of detainees at Guantanamo Bay. But Zubaydah and al-Nashiri were held overseas at the time, so the agency regarded the order as not applicable to the tapes of their interrogations.

_A judge in New York told the CIA to search its investigative files for records such as the tapes as part of a Freedom of Information Act suit. But the CIA considered the tapes part of its operational files and therefore exempt from FOIA disclosure and did not reveal their existence to the court.

_The Sept. 11 commission asked for broad ranges of documents, but never issued a formal subpoena that would have required the agency to turn over the tapes.

As such, the story adds valuable insight into the strategies that John Durham may be using to prosecute Jose Rodriguez and others.

But the story buys into certain well-cultivated CIA myths that obscure some other important details of the story:

  • The story replicates CIA’s favored narrative about why the tapes were made–“to prove that interrogators followed broad new rules Washington had laid out”–and why they were destroyed–to protect the identities of officers involved in the interrogation.
  • The story presents Winograd’s justification for destroying the tapes–“the inspector general had completed its investigation and McPherson had verified that the cables accurately summarized the tapes”–without any discussion of the fact that McPherson acknowledged evidence of tampering with the tapes during the IG Report and couldn’t say whether the techniques reflected the guidance given to the torturers.
  • The story ignores all evidence of earlier destruction of evidence and cover-up of criminal acts.
  • This claim–“The White House didn’t learn about the tapes for a year, and even then, it was somewhat by chance”–is either further evidence of a cover-up or simply false.

Let’s start with the primary fiction–that the tapes were designed solely “to prove that interrogators followed broad new rules Washington had laid out.” Aside from indications they were used for research purposes about the efficacy of the methods they were using, this claim suffers from a fundamental anachronism. After all, when the taping started on April 13, 2002, Washington had not yet laid out the broad new rules ultimately used to authorize Abu Zubaydah’s torture on August 1, 2002. Bruce Jessen didn’t even complete his proposed interrogation plan until three days after taping started.

Although, if “Washington” had indeed given Abu Zubaydah’s torturers broad rules three and a half months before the Bybee Memo was signed–reports have said that Alberto Gonzales authorized that treatment on a day to day basis–then that by itself would provide an entirely different logic for why the tapes were made and then destroyed (which is sort of the argument Barry Eisler makes in his book Inside Out).

Read more →

Who Is Lying? The Torturers? Or John Yoo?

/40 Comments/in /by

One of the potential bombshells in last week’s FOIA dump appears in a CIA discussion about a potential statement in response to NYT’s breaking of the torture tape story (PDF 86). The document notes that the videotapes would have shown the sheer number of times the torturers waterboarded Abu Zubaydah, and suggests that that may have presented legal problems. The document continues that someone (it appears to be the torturers) informed DOJ of the real number of times they waterboarded AZ, but CIA had no proof.

Jay Bybee’s 1 Aug 2002 memo to John Rizzo stated, in part, “Moreover, you have also informed us that although some of these techniques may be used with more than once, that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions.” (p. 2) and again, “You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition.” (p.11). The OIG review determined that Abu Zubaydah was subjected to [redaction] waterboard sessions, consisting of at least 83 separate exposures [half line redacted] assured us that he gave regular updates to DoJ (i.e., John Yoo [few words redacted] at OLC) during this time frame, and DoJ was aware of the real numbers, but we were never able to verify this with DoJ, as INV management at the time elected not to interview witnesses outside the building. In addition to the disparity in numbers, the method of water application as recorded in the tapes was at odds with the Bybee opinion. [my emphasis]

That is, one problem with the videotapes is that, unless the torturers really did inform Yoo (and, I’m guessing, Jennifer Koester) about how and how many times they really used waterboarding then they would have been in violation of guidelines from DOJ.

The statement, by itself, is inflammatory enough. But particularly in light of what Yoo said to OPR in interviews conducted during the summer of 2005.

He told us during his interview: “I had actually thought that we prohibited waterboarding. I didn’t recollect that we had actually said that you could do it.” He added:

[T]he waterboarding as it’s described in that memo, is very different than the waterboarding that was described in the press. And when I read the description in the press of what waterboarding is, I was like, oh, well, obviously that would be prohibited by the statute.

Now, granted, Yoo is not addressing the number of repetitions of waterboardings. And he points to the depiction of waterboarding in the press, not the depictions of waterboarding that appeared in the CIA IG Report (which, as it happens, matches the descriptions in the press with regards to volume of water and forced ingestion of it). So Yoo, as is his wont, has left some wiggle room here.

But he seems to suggest surprise that he had actually authorized the use of waterboarding.

As implausible as that is, assuming he simply forgot the phone call he made to John Rizzo on July 26, 2002 personally authorizing waterboarding and then forgot reviewing the extensive descriptions Koester wrote into the Bybee Two memo, it strains credulity if Yoo was actually receiving updates from Thailand. Imagine how such an exchange might play out:

“Oh, by the way, John. We set a new record for ‘pours’ during one waterboard session! We drowned that motherfucker 27 times in today’s session!”

“Wha–What? I thought we told you not to use that medieval torture technique!”

John Yoo was playing (or actually was) dumb about the use of waterboarding in the months before CIA destroyed the torture tapes. Yet someone–perhaps Bruce Jessen or James Mitchell–claim they kept DOJ generally and Yoo specifically in the loop of what they were doing.

Someone is not telling the truth. Who is it?

Why John Yoo’s Attempts to “Negate” the Torturers’ Intent Fails

/126 Comments/in /by

In my last post, I showed how the Bybee Two memo, purporting to find each of ten torture techniques used with Abu Zubaydah legal, was a very specific response to John Yoo’s July 13 memo to John Rizzo. The July 13 memo had basically said, “if you consult with experts that tell you techniques won’t cause prolonged mental harm, then it will “negate” any intent you had to use specific acts listed in the torture statute to cause mental pain and suffering.” So, in response, CIA barraged John Yoo and Jennifer Koester with information purportedly showing that waterboarding and sleep deprivation did not cause prolonged mental harm, Yoo and Koester threw it into a memo, and said that as a result those techniques weren’t torture.

But there’s a problem with the gimmick (even aside from the offensiveness of the premise): the timing.

The memo itself bears evidence that the CIA had already used at least some of these techniques by the time they asked for the opinion. And the details we now know surrounding the process make it clear that they didn’t even consult the experts until after they used some of the techniques. Indeed, it appears that one of the studies they claim to have “consulted” was actually an experiment they conducted on Abu Zubaydah himself. That is, they’re citing their own “study” on Abu Zubaydah as their expert advice to prove they didn’t have the intent of causing him prolong mental suffering.

The torturers had already used the techniques before getting approval

Now, there are many reasons to suspect that the torturers used waterboarding (and perhaps mock burial) before August 1. But I can’t prove that. But their single-minded concern about mental suffering–and not physical suffering–dating back at least to July 10, 2002 strongly suggests that they may have already done something to cause AZ prolonged mental suffering. Otherwise, what would explain the imbalance in their focus?

But there are several details in the Bybee Two memo itself that show they had already used some of the techniques on AZ.

Take, for example, my observation of the other day: a draft of Abu Zubaydah’s psychological evaluation noted that “he showed strong signs of sympathetic nervous system arousal (possibly fear) when he experienced the initial ‘hard’ dislocation of expectation intervention following session 63.” [my emphasis] Well, it turns out we have seen that term, “dislocation of expectation” before … in the Bybee Two memo, where Yoo describes the whole point of the ten torture techniques!

As part of this increased pressure phase, Zubaydah will have contact only with a new interrogation specialist, whom he has not met previously, and the Survival, Evasion, Resistance, Escape (“SERE”) training psychologist who has been involved with the interrogations since they began. This phase will likely last no more than several days but could last up to thirty days. In this phase, you would like to employ ten techniques that you believe will dislocate his expectation regarding the treatment he believes he will receive and encourage him to disclose the crucial information mentioned above. [my emphasis]

They knew at this point that AZ had already been subjected to such a condition, even while they were purportedly approving the ten techniques in the future.

More damning, though, are the admissions that they had already subjected him to sleep deprivation. There’s the admission they had subjected him to sleep deprivation in the description of the technique itself.

You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.

Then there’s a more interesting reference, because it shows up in the section on page 8 that regurgitates his psychological evaluation.

During detention, Zubadaydah has manged his mood, remaining at most points “circumspect, calm, controlled, and deliberate.” He has maintained his demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Zubaydah showed signs of sympathetic nervous system arousal (which you think was possibly fear). [my emphasis]

Now, this entire larger section repeats back the content of the psychological evaluation (though the use of the word “confrontational” shows they were citing from the later draft of it), almost all in the same order at the paragraph level as it appears in the evaluation. There is nothing in the unredacted document referring to sleep deprivation. But this entire passage otherwise replicates the paragraph spanning pages 3-4 of the evaluation. Which strongly suggests that the redaction also spanning pages 3-4 includes a discussion of both aggressive interrogations and sleep deprivation.

Read more →

The Context of the July 13 Fax

/43 Comments/in /by

As I pointed out in an earlier post, when Counterterrorism Center lawyer Jonathan Fredman sent the torturers in Thailand a green light for torture in August 2002, he relied on language about intent from a July 13, 2002 fax from John Yoo to John Rizzo rather than the finalized August 1 Bybee Memo. In a second post on this, I also showed that both of Yoo’s nominal supervisors–Jay Bybee and John Ashcroft–claim they knew nothing about that fax. In this post, I’m going to show how that fax appears to arise out of DOJ discomfort with CIA’s torture program.

As the timeline below shows, Yoo dated (but did not send) the fax the same day that the numerous parties involved in reviewing the Bybee Memo had an apparently contentious meeting at which they discussed the draft memo as well as the CIA’s torture plan (I’m doing a big update on the Torture Timeline, so some of this is not reflected in the timeline yet).

July 10, 2002: John Yoo tells Jennifer Koester that they will present the Bybee memo to NSC at 10:45 on July 12 (and names the Bybee Memo the “bad things opinion”!).

July 11, 2002: John Yoo and Jennifer Koester have briefing session with Michael Chertoff on Bybee Memo.

July 11, 2002: An OLC paralegal cite-checks the draft, and someone schedules a July 12 meeting with Alberto Gonzales and a July 13 meeting with (effectively) NSC.

July 12, 2002: First draft of Bybee Memo distributed outside of OLC.

July 12, 2002: John Yoo meets with Alberto Gonzales (and either David Addington or Tim Flanigan) on Bybee Memo.

July 13, 2002: John Yoo and Jennifer Koester present July 12 draft to John Rizzo, John Bellinger, Michael Chertoff, Daniel Levin, and Alberto Gonzales. Rizzo provides overview of interrogation plan. Chertoff refuses to give CIA advance declination of prosecution. Levin states that FBI would not participate in any interrogation using torture techniques, nor would it participate in discussions on the subject.

July 13, 2002: Rizzo asks Yoo for letter “setting forth the elements of the torture statute.”

July 15, 2002: John Yoo faxes John Rizzo July 13 letter on the torture statute.

July 15, 2002: John Yoo sends Jennifer Koester an email telling her to include a footnote in the opinion stating that they had not been asked about affirmative defenses like necessity, self-defense, or commander-in-chief powers.

July 16, 2002: John Yoo and Jennifer Koester meet with Alberto Gonzales and (probably) David Addington and Tim Flanigan. Yoo shared the July 13 fax with them. At the meeting, it is decided that Yoo will include Commander-in-Chief and other affirmative defenses in Bybee Memo.

July 16, 2002: In response to earlier request from Michael Chertoff (perhaps as early as July 13), John Yoo has Jennifer Koester draft, but not send, a letter to CIA refusing a letter of declination of prosecution.

July 17, 2002: George Tenet meets with Condi Rice, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

Of course, two things are going on in the background. First, when Ali Soufan left the black site in May because James Mitchell threatened Abu Zubaydah with mock burial, DOJ got official notice that one of its top terrorism agents believed that the CIA was using torture with Zubaydah. Yet, two months later, the torturers were almost certainly already using the most aggressive torture with Abu Zubaydah.

What seems to have happened is the following. Yoo and Koester were all set for an NSC meeting on July 12, perhaps until they had a July 11 briefing with Chertoff. In any case, something made them reschedule that NSC meeting to arrange an Alberto Gonzales (and presumably, Addington) meeting first. After which they appear to have had an incredibly contentious meeting with Bellinger, Chertoff, Levin and others. Perhaps the fact that John Rizzo presented the latest interrogation plan (which, we suspect, was already in process anyway) made things worse. We do know, for example, that mock burial remained in the plan, even after Soufan had balked when Mitchell tried to use it two months earlier. Whether because of Rizzo’s presentation or Yoo’s draft memo, at the meeting Chertoff definitively refused an advance declination and Levin announced that FBI would have nothing more to do with CIA’s torture program.

And so Rizzo, perhaps noting that the head of DOJ’s Criminal Division and the FBI Chief of Staff were reacting rather unfavorably to CIA’s torture plan, asked Yoo for some kind of cover. In response, Yoo wrote a memo raising the bar for prosecution of inflicting severe mental suffering incredibly high.

What I find particularly interesting is the 2-day delay before Yoo sent the fax, dated July 13, to Rizzo on July 15. That likely coincided with another delay; we know Chertoff asked Yoo to send Rizzo a letter refusing advance declination sometime between July 13 and July 16, but Yoo didn’t act on that request until he had sent Rizzo his July 13 fax already.

Did Yoo get both the request for the letter refusing advance declination and the request for the letter laying out the torture statute at the same contentious meeting?

And then there’s one more unexplainable coincidence. On the same day Yoo sent the July 13 memo (on July 15), Yoo instructed Koester they not only wouldn’t include any affirmative defenses in the memo, but they would claim they weren’t asked for such things. Yet that happened just a day before heading into a meeting with Gonzales and (almost certainly) Addington, at which they did decide to include such things. And incidentally–a fact I hadn’t noted before–Yoo gave Gonzales and (almost certainly) Addington a copy of his July 13 fax at the same meeting where it was decided to add affirmative defenses to the Bybee Memo.

I can’t prove it. But it appears that Yoo wrote the July 13 fax in response to serious reservations from Chertoff and Levin. And in response to that, Addington directed him to add a bunch more defenses (literal and figurative) into the Bybee Memo.

One last point. As I said, one key difference between the July 13 fax and the Bybee Memo is that Yoo rebutted an obvious objection to his reading of how the Torture Statute treated intent with severe mental suffering.

It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute.

Any bets on whether Chertoff and/or Levin made precisely this argument at that July 13 meeting?

Ibn Sheikh al-Libi’s and Abu Zubaydah’s Coffins

/43 Comments/in /by

At Mary’s instigation, I went back to look at Ibn Sheikh al-Libi’s description of how he was shoved into a coffin-like box in Egypt. (Thanks to burnt for the searchable copy.)

According to al-Libi, the foreign government service [redacted] “stated that the next topic was al-Qa’ida’s connections with Iraq. … This was a subject about which he said he knew nothing and had difficulty even coming up with a story.” Al-Libi indicated that his interrogators did not like his responses and then “placed him in a small box approximately 50cm x 50cm.” He claimed he was held in the box for approximately 17 hours. When he was let out of the box, alLibi claims that he was given a last opportunity to “tell the truth.” When al-Libi did not satisfy the interrogator, al-Libi claimed that “he was knocked over with an arm thrust across his chest and he fell on his back.” Al-Libi told CIA debriefers that he then “was punched for 15 minutes.”216

(U) Al-Libi told debriefers that “after the beating,” he was again asked about the connection with Iraq and this time he came up with a story that three al-Qa’ida members went to Iraq to learn about nuclear weapons. Al-Libi said that he used the names of real individuals associated with al-Qa’ida so that he could remember the details of his fabricated story and make it more believable to the foreign intelligence service. Al-Libi noted that “this pleased his [foreign] interrogators, who directed that al-Libi be taken back to a big room, vice the 50 square centimeter box and given food.”217

That mock burial–and al-Libi’s subsequent lies about Iraqi ties with al Qaeda–happened sometime before February 22, 2002, when a DIA cable challenged the report.

This is the first report from Ibn al-Shaykh [al-Libi] in which he claims Iraq assisted al-Qa’ida’s CBRN efforts. However, he lacks specific details on the Iraqi’s involvement, the CBRN materials associated with the assistance, and the location where the training occurred. It is possible he does not know any further details; it is more likely this individual is intentionally misleading the debriefers. Ibn al-Shaykh has been undergoing debriefs for several weeks and may be describing scenarios to the debriefers that he knows will retain their interest. Saddam’s regime is intensely secular and is wary of Islamic revolutionary movements. Moreover, Baghdad is unlikely to provide assistance to a group it cannot control

Al-Libi was, you’ll recall, the onsite manager of the Khalden training camp, a camp that trained a range of Muslims, a policy that  put it at odds with Osama bin Laden, who wanted training to be limited to al Qaeda operatives.

Just over a month after al-Libi claimed, having been shoved in a coffin for almost a day, there were ties between al Qaeda and Iraq, the US captured al-Libi’s associate, Abu Zubaydah, who handled logistics for Khalden. Rather than send Abu Zubaydah off to the Egyptians, as the US had done with al-Libi, they instead sent Abu Zubaydah to a CIA run black site in Thailand.

And there, less than three months after the Egyptians shoved Ibn Sheikh al-Libi in a coffin overnight, James Mitchell threatened to do the same with Abu Zubaydah. Ali Soufan objected and told Mitchell doing so was torture. Soufan left the black site and alerted DOJ of what Mitchell had intended to do.

And then, some time later (Abu Zubaydah says it was about 3 months after his surgery, so perhaps mid-July) they did shove Abu Zubaydah in that coffin-like box. Read more →