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The Government Makes No Claim Abu Zubaydah Had Knowledge of Impending Terrorist Plans

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There’s one more really incendiary passage from the government’s response to Abu Zubaydah’s request for more information in his habeas petition (see here, here, and here for more on this document). In response to a request for evidence indicating that Abu Zubaydah had no knowledge of pending terrorist attacks when he was captured in 2002, the government responds that they have not contended, in this proceeding, that he did have such knowledge.

The Government also has not contended in this proceeding that at the time of his capture, Petitioner had knowledge of any specific impending terrorist operations other than his own thwarted plans. Accordingly, there is no reason or basis to compel the Government to search for information indicating that Petitioner had no knowledge of such impending terrorist operations, as Petitioner requests in his Request No. 66.

Now, let’s be clear what this statement is not: it’s not an admission that the government knows AZ didn’t know of any pending terrorist attacks. By limiting their statement to AZ’s habeas petition–to their legal claim at the moment describing why they’re detaining him–they also limit their admission. That is, they may now believe that AZ didn’t know about any further terrorist attacks. Or they may still believe that AZ had knowledge of pending attacks, but can’t use that claim because they either have no untainted evidence to support it or doing so would too quickly rely on AZ’s tortured statements.

So while this is not a full admission that AZ didn’t know of any pending terrorist attacks, it is a pretty good sign that the government either can’t or doesn’t want to defend that claim.

Compare the caution about making such a claim with the claims made in another legal document submitted last year, the very first passage in Jay Bybee’s first response to the OPR report (Bybee submitted this on May 4, 2009, so a full month after the government submitted Abu Zubaydah’s factual return, though there’s no reason to believe Bybee would have known the content of the factual return).

Six months after the September 11,2001 attacks, United States forces captured top al Qaeda leader Abu Zubaydah. Because Zubaydah had assumed the role of chief military planner for al Qaeda, he possessed critical imminent threat information. In particular, the Central Intelligence Agency (“CIA”) determined that Zubaydah had information about a “second wave” of devastating attacks targeting, among other things, the tallest building in Los Angeles.

According to Jay Bybee–the guy who signed off on AZ’s torture–AZ “possessed” critical intelligence. He states this with no caveats.

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Yoo’s Supervisors Didn’t Know about the July 13, 2002 Fax

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As I pointed out in my last post, when Jonathan Fredman wrote the Abu Zubaydah torture team in Thailand to tell them they had gotten the green light to torture, he cited not the Bybee One memo which had just been signed, but a July 13, 2002 Yoo fax, for his discussion of intent.

This is significant not just because the language on intent in the fax lacks some of the caveats in the Bybee One Memo. But also because it appears Yoo was freelancing when he wrote the July 13 fax.

To be sure, the evidence that Yoo was freelancing when he wrote this fax is not as clear cut as it was for the Legal Principles/Bullet Point documents. Unlike the Legal Principles documents, this fax is on OLC stationary and signed by Yoo, making it appear, at least, like a formal OLC opinion.

But Yoo’s superiors at DOJ claim to have known nothing about it.

In response to July 2008 questions from the Senate Armed Services Committee, Jay Bybee said in October 2008 that he did not recall any written guidance to CIA before the August 1 memo.

Judge Bybee said that he did not recall “any written advice provided to any governmental agency prior to August 1, 2002, on the meaning of the standards of conduct required for interrogation under the federal anti-torture statute or on specific interrogation methods,”

Similarly, when asked in July 2008 whether anyone from his department had authorized torture before August 1, 2002, John Ashcroft claimed he “didn’t know.”

Mr. NADLER. Thank you, Mr. Chairman. Attorney General Ashcroft, in your testimony you mentioned Abu Zubaydah, who was captured in March 2002. The Inspector General report on the FBI’s role in interrogation makes clear that he was interrogated beginning in March of that year. The Yoo-Bybee legal memo was not issued until August 2002. So was the interrogation of Abu Zubaydah before August 2002 done without DOJ legal approval?

Mr. ASHCROFT. I don’t know.

Mr. NADLER. Well, did you offer legal approval of interrogation methods used at that time?

Mr. ASHCROFT. At what time, sir?

Mr. NADLER. Prior to August of 2002, March 2002.

Mr. ASHCROFT. I have no recollection of doing that at all.

Mr. NADLER. And you don’t know if anyone else from the Department of Justice did?

Mr. ASHCROFT. I don’t know.

[snip]

Mr. WEXLER. So from March to August, did you offer any legal approval of the interrogation methods used at that time?

Mr. ASHCROFT. I don’t have any recollection of doing so.

Mr. WEXLER. And did anyone else at the Department of Justice?

Mr. ASHCROFT. I don’t know. I don’t know.

And there is evidence that Jack Goldsmith didn’t learn about it until just before he left DOJ.

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Abu Zubaydah’s Torturers Relied on July 13 Yoo Fax, not Bybee Memo

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There’s an astounding passage in Bybee’s Second Response to the OPR Report that reveals that Abu Zubaydah’s torturers relied on a July 13, 2002 memo Yoo sent to John Rizzo, rather than the Bybee One Memo, for their general torture authorization.

In a passage attempting to refute OPR’s assertion that the Bybee Memo was written so vaguely it could easily be misinterpreted, Jay Bybee’s lawyer, Maureen Mahoney, examines a set of documents the CIA wrote about torture to show (she claims) that CIA never misinterpreted “OLC’s advice,” including the Bybee One Memo. It’s clear that the documents she refers to include at least CIA’s own Interrogation Guidelines, the Bullet Points written to summarize OLC’s advice, the declination memo the Counterterrorism Center wrote in the Salt Pit killing, and a memo Jonathan Fredman, CTC’s top lawyer, wrote to the Abu Zubaydah interrogation team.

Here’s how she describes the Fredman memo:

In addition, the documents OPR uses to reveal the CIA’s understanding of the standards in the Bybee Memo (e.g., Report at 65-66) do not suggest there was any misinterpretation going on. As shown in subsequent sections, these documents (which Bybee never wrote or saw) were actually correct statements of the law. [Redacted] memo to the Abu Zubaydah interrogation team, for instance, which quoted from Yoo’s July 13, 2002 fax to Rizzo, provided a correct summary of the specific intent element. Report at 66; infra Section N.A. It is correct, as Yoo wrote, that if an individual “undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture.” Report at 48; infra Section IV.A. [PDF 32; my emphasis]

We know this memo was from Jonathan Fredman, because Mahoney refers to it again on the next page, and in that reference, the name “Fredman” is not redacted.

As this passage makes clear, Fredman wrote a memo to the Abu Zubaydah torture team including an analysis of how intent plays into Torture Statute. Now, the passage of the OPR Report that discusses this memo (document pages 65-66; PDF pages 71-72) is entirely redacted. But it appears after discussion of the finalization of the Bybee Memo on August 1, 2002, suggesting Fredman’s memo was sent after that date. Indeed, the first passage after the long redacted section refers to “a cable [] sent out last week, following the issuance of the opinions,” which would seem to be a reference to Fredman’s memo. In other words, the memo appears to post-date the Bybee One memo.

Nevertheless, the memo doesn’t refer to the Bybee One Memo for its discussion of intent. Rather, it refers to the July 13, 2002 memo that John Yoo faxed John Rizzo. While we can’t prove it with the redactions, it appears that Fredman made a conscious decision not to refer to the finished, official OLC memo, but instead referred to the more informal fax Yoo had sent earlier in the month.

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The Salt Pit and the Bybee Memos

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The AP has a long article out providing details behind the Salt Pit death of a detainee named Gul Rahman–a former militant associated with Gulbuddin Hekmatyar who was captured on October 29, 2002 at the home of Hekmatyar’s son-in-law, Dr. Ghairat Baheer, along with the Baheer and three others. A week later, Rahman was separated from the others. He was subjected to stress positions and water dousing and–on November 20–left in 36 degree cold, only to die a few hours later.

Aside from finally providing details on a story that has long been known, the story is interesting for the way it shows the how the CIA’s torture system fit with DOJ’s approvals in the Bybee Memos. The Rahman death shows that CIA’s managers (probably in the Counterterrorism Center) were involved in direct guidance on a technique that got someone killed. That technique was specifically not approved in the Bybee Two memo. But when CTC worked to exonerate the guy in the field–the manager of the Salt Pit–they pointed to the intent language of the Bybee One memo, and claimed that anything short of intending severe pain could not qualify as torture. Ultimately, CIA’s managers used the Get Out of Jail Free Card that John Yoo had written them to prevent accountability for themselves when they gave approval for a technique that got someone killed.

Gul Rahman died from water dousing

The AP describes how, in response to Rahman’s resistance to US guards (he threw a latrine bucket), he was subjected to stress positions and dousing.

At one point, the detainee threw a latrine bucket at his guards. He also threatened to kill them. His stubborn responses provoked harsher treatment. His hands were shackled over his head, he was roughed up and doused with water, according to several former CIA officials.

The exact circumstances of Rahman’s death are not clear, but the Afghan was left in the cold cell on the morning of Nov. 20, when the temperature dipped just below 36 degrees. He was naked from the waist down, said two former U.S. officials familiar with the case. Within hours, he was dead.

Though the AP doesn’t say it, the language used here makes it clear CIA thought of this as water dousing–a technique that would not be approved by DOJ for use until August 26, 2004. After Rahman died, the CIA tried to invent the Legal Principles document as a way to authorize murder and other crimes, but Jack Goldsmith would go on to not only refuse to consider that document OLC authorization, but to refuse to approve water dousing specifically in March 2004.

In other words, three years and our third review of this case later, and DOJ still hasn’t decided whether wetting someone down in close to freezing temperatures is a crime, even though this was a torture technique that DOJ had not approved at the time.

The Salt Pit manager relied on the advice of his superiors

Now, the guy who wet down Rahman apparently wasn’t working off a list of approved techniques. Rather, he was asking for guidance from his superiors.

The [Inspector General’s] report found that the Salt Pit officer displayed poor judgment in leaving the detainee in the cold. But it also indicated the officer made repeated requests to superiors for guidance that were largely ignored, according to two former U.S. intelligence officials.

That raised concerns about both the responsibility of the station chief and the CIA’s management in Langley. Similar concerns about CIA management were later aired in the inspector general’s review of the CIA’s secret interrogation program.

In fact, John Yoo, appears to blame the people interpreting the Bybee Memos for any untoward results from torture. For example, he refers to a written document (probably cables to the field) that appear to be derivative of the Bybee Memo, suggesting those didn’t properly account for pain that might amount to death.

The Memo says that the pain must rise to the level that “would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of bodily functions.” Bybee Memo at 6. There is no way to interpret this sentence other than that if the pain is equivalent to the pain that accompanies those conditions, the infliction qualifies as torture, whether or not it actually does result in those conditions. It certainly would not be so misinterpreted by the sophisticated legal audience at which the Bybee Memo was directed–especially given the analysis in the Classified Bybee Memo, which carefully examined the level of physical pain caused by the individual interrogation techniques even though none of those techniques cause death, organ failure, or serious impairment of bodily functions. See Classified Bybee Memo at 9-10 (“With respect to physical pain, we previously concluded that ’severe pain’ within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury.”)40

40 [long redaction] But, of course neither Professor Yoo nor Judge Bybee have anything to do with writing or reviewing [redacted] and they could reasonably assume their own work product would be read in good faith and consistently with its terms by a sophisticated audience even if a particular reader did not read it carefully or willfully disregarded its terms. [emphasis original]

That is, Yoo seems to blame whoever both read the Bybee Memo and–having interpreted the memo in a “sophisticated” manner–passed on authorization for techniques that did result into death.

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Did DOD Have ANY Authorization for Torture after 2004?

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There are a couple of things that have been bugging me about the authorizations DOD got for interrogations.  It’s not clear what kind of authorization DOD used to justify detainee interrogations after the Yoo memo was withdrawn in 2003-2004–they had no overall interrogation approval from OLC. While it’s possible they were just relying on already-existing DOD documents, there are hints that DOD was either relying exclusively on the CIA’s more expansive authorizations (that included waterboarding), or they had some alternative approval that may not have involved OLC at all.

As I’ve shown (here and here), in March 2004, DOD requested approval to use–at the least–extended isolation with detainees. In response, Jack Goldsmith and Steven Bradbury started trying to replace the 2003 Yoo memo.

At precisely the same time, Goldsmith was working through the mess created by the Legal Principles document. As you recall, faced with clearly illegal conduct and with the opportunity to investigate that conduct themselves in 2003, CIA worked back channel with Jennifer Koester and John Yoo to summarize the legal advice given on torture, going so far as to claim certain techniques (like abdominal slap and diapers) had been approved when they hadn’t been. During that period, Koester and Yoo gave CIA an opportunity to review and provide input on the 2003 Yoo memo. Then, Koester and Yoo relied on the Yoo memo for several of the claims they made in the Legal Principles. That raises the possibility that one reason the Yoo memo was so bad (it was even more permissive than the Bybee One memo) was to help CIA avoid criminal liability for crimes already committed.

At the very least, this is proof that CIA and DOD were both relying on advice given to the other agency to justify their own agency’s actions. We know DOD used the Bybee memos (and oral authorization from Yoo based on that analysis) to authorize its treatment of Mohammed al-Qahtani in 2002-2003. And the Legal Principles show CIA was using the Yoo memo, written for DOD, to authorize its treatment of multiple detainees in anticipation of the CIA IG Report. In other words, though DOJ liked to maintain the fiction that the approval tracks for CIA and DOD were separate, they weren’t, at least not when John Yoo was involved.

And that was becoming crystal clear in spring of 2004. (In the same phone conversation in which Goldsmith confirmed that the Legal Principles weren’t an official OLC document, he also asked Yoo for details of his verbal authorizations to Jim Haynes leading up to the al-Qahtani torture, so he clearly pursued these issues in tandem.)

Yet after that, CIA’s memos got withdrawn and replaced. DOD’s Yoo memo reportedly was withdrawn. But no formal guidance from OLC ever replaced it.

So what happened after that point?

The Daniel Levin Memo

My concerns about DOD’s later authorizations stem partly from a memo Daniel Levin wrote John Ashcroft and Jim Comey in September 2004 to summarize all the advice OLC had given on torture. Read more →

Were the Torturers Bypassing OLC in July 2004?

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Update, March 13, 2015: The Torture Report clarify this. First, CIA had not yet rendered the detainee, who was indeed Janat Gul. At the meeting, CIA did ask for a memo, as well as permission to torture Gul because (we now know) a fabricator had claimed he was involved in an election season plot. We’ve also learned that regardless of what Comey and Goldsmith approved, the CIA used its torture of Gul, after Goldsmith left, to expand the prior authorizations CIA had obtained to incorporate what they had actually used.
Jay Bybee thinks it’s really damning that Jim Comey attended a July 2, 2004 Principals meeting at which the torture of one particular detainee (he says it was Janat Gul, though there are reasons to doubt it) was discussed.

Comey joined Ashcroft at a NSC Principals Meeting on July 2, 2004 to discuss the possible interrogation of CIA detainee Janat Gul. Report at 123. Ashcroft and Comey conferred with Goldsmith after the meeting, leading to Goldsmith’s letter to Muller approving all of the techniques described in the Classified Bybee Memo except for the waterboard. Id (PDF 26-27)

I’m not so sure. In fact, it appears that the key approvals happened after Comey had left that meeting–and Goldsmith’s “approval” appears to have been an attempt to put some limits on the CIA after the White House had approved the techniques.

Let’s review everything that led up to that meeting.

In April, per the OPR Report, Jack Goldsmith and Steven Bradbury began work on a memo to replace the March 2003 Yoo memo. Meanwhile, in response to the CIA Inspector General Report’s description of torture as it was being administered, Goldsmith advised CIA General Counsel Scott Muller on May 27 not to use waterboarding (and to strictly follow the descriptions of the other nine authorized techniques carefully). On June 7 and 8 news of the torture memos appeared in the WSJ and WaPo. After learning in a phone call with John Yoo about some of the back-channel advice CIA and DOD had gotten, Goldsmith told Muller on June 10 that CIA was going to have to put things in writing if it wanted further OLC opinions on torture (Goldsmith appears to have kept the proof that he faxed it to CIA). On June 16, Goldsmith told Ashcroft he would withdraw the Bybee One memo and then resign. On June 22, in an off the record briefing, Comey, Goldsmith, and Philbin renounced the Bybee One memo. And on June 28, the Supreme Court ruled against the Administration in the Hamdi case.

The entire torture program, the torture architects surely believed, was at risk. In his book, Jack Goldsmith reports that the CIA and White House accused him of “buckl[ing]” in the wake of the Abu Ghraib scandal. And Addington sniped that Goldsmith should give him a list of any OLC opinions Goldsmith still stood by.

In this context on July 2–ten days after Goldsmith publicly withdrew the Bybee One memo and four days after the Hamdi decision–the CIA asked to torture again.

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Whose Non-Disclosure Was Worse: Bybee’s or Holder’s?

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John Kyl has officially announced he intends to waste an oversight hearing on March 23 beating up Eric Holder because he did not disclose an amicus brief opposing unlimited Presidential power.

Kyl told members of the committee that panel Republicans will question the Attorney General about his 2004 amicus brief that recommended the Supreme Court stop the Bush administration’s efforts to try Jose Padilla as an enemy combatant.

[snip]

Kyl called the non-disclosure of the brief “rather distressing.”

“Are we expected to believe that then-nominee Holder…forgot about his role in one of this country’s most politicized terrorism cases?” Kyl asked.

And the other Republicans on the Senate Judiciary Committee are practicing their pout-rage, as well.

Senator Jeff Sessions of Alabama, the ranking Republican on the committee, said he was “deeply concerned” by Mr. Holder’s failure to disclose the brief during his confirmation.

“Not only was the Attorney General required to provide the brief as part of his confirmation, but the opinions expressed in it go to the heart of his responsibilities in matters of national security,” Mr. Sessions said in a statement. “This is an extremely serious matter and the Attorney general will have to address it.”

Now, as I said earlier, Holder clearly should have disclosed this brief–though his views were already well known.

But he’s not the first nominee to go before SJC who failed to disclose key legal writings. After all, Jay Bybee secured a lifetime appointment as an Appeals Court Judge without disclosing the fact that he rubber stamped legal sanction for torture. And unlike Holder, Bybee’s actions were totally unknown at the time. At the time, just one Democrat, Jane Harman, had even been briefed that CIA was doing the torture (though Pelosi had been briefed that they were considering torture), the memos specifically had not even been revealed to her, and even if she knew about it, she would not have been permitted to share it with SJC.

And yet, barring Bybee’s resignation or prosecution in some international court, Bybee will be serving on the 9th Circuit long after Holder has moved on as Attorney General.

So whose non-disclosure is more of a problem? Jay Bybee, who failed to hint that he had authorized torture? Or Eric Holder, whose views were well-known and tested during his confirmation hearing?

The Terrorist Sympathizers Grassley Doesn’t Mention: Chiquita

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Predictably, Politico piles onto the latest installment of the McCarthyist attacks on DOJ, largely repeating the attack as made by Dana Perino and Bill Burck. The one thing it does add is some discussion of what Eric Holder should have disclosed at his confirmation hearings last year.

Holder didn’t mention the brief during his confirmation hearings to be Attorney General, even though the Senate Judiciary Committee questionnaire required him to list all Supreme Court amicus briefs he was party to. His questionnaire lists briefs in only three cases: Miller-El v. Cockrell, Johnson v. Bush and D.C. and Fenty v. Heller.

A Justice Department spokesman, Matthew Miller, said “the brief should have been disclosed,” but had been “ unfortunately and inadvertently” left out in the documents submitted to the committee.

“ In any event,” he said, “ the Attorney General has publicly discussed his positions on detention policy on many occasions, including at his confirmation hearings.

Justice Department officials also didn’t mention the briefs in the letter they sent to Sen. Chuck Grassley (R-Iowa) informing Congress that nine of the department’s political appointees either “represented detainees [or] … either contributed to amicus briefs in detainee-related cases or were otherwise involved in advocacy on behalf of detainees.”

Now, I agree that Holder should have disclosed all this.

But I’m also interested in the tizzy surrounding whether Holder should have disclosed himself in response the questions Chuck Grassley posed on terrorist sympathizers at DOJ. Granted, originally asked were definitely targeted toward creating this witchhunt–that is, to detainees at Gitmo, rather than to the representation of terrorists and their affiliates generally.

But if we’re going to discuss Holder’s “biases,” shouldn’t we start with Holder’s representation of Chiquita, and particularly his success at getting several white Republican men off of charges that they knowing supported right wing Colombian terrorists? Particularly given the way Bush’s DOJ facilitated that process?

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Boxes and Burials in the CIA’s Torture Plans

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In this post, I’m going to test a hypothesis that OLC may not have included “cramped confinement” in its torture plans until it removed “mock burial.” If I’m right, it means after having been told OLC would not approve mock burial, OLC and CIA instead just renamed what they were doing as “cramped confinement” so as to get it past those in DOJ who were opposed to allowing the US to use mock burial in its torture program.

This is a weedy post even by my standards. But the key points are:

  • Many of the discussions about which techniques OLC was approving appear to have taken place orally, not in written form
  • The one written document we know exists–a JPRA Physical Pressures document–was an attempt made during the key three days of the Bybee Memo process to pretend that JPRA sanctioned waterboarding (at least) as it either already had been used or would be used on Abu Zubaydah, rather than as the Navy used it in training
  • The section on small box confinement also seems to have been created in response to this process, meaning it is possible that JPRA adjusted both the name and the description of the technique to provide JPRA sanction for mock burial as it had been done on AZ

The OPR Report’s list of torture techniques is neither the original nor the final list of planned torture techniques

The OPR Report includes a list of torture techniques Mitchell and Jessen proposed to use with Abu Zubaydah that includes both cramped confinement and mock burial, which seems to suggest that the CIA tried to get both approved at once. But the OPR Report provides absolutely no explanation for the source or the date of its list (on PDF 41) of the torture techniques. It says simply:

The CIA psychologists eventually proposed the following twelve EITs to be used in the interrogation of Abu Zubaydah:

In addition to the use of the word “eventually” in this description, there’s further evidence this list is not the first incarnation of the torture techniques requested. That’s because this description of sleep deprivation…

Sleep deprivation: The subject is prevented from sleeping, not to exceed 11 days at a time;

Includes this footnote:

As initially proposed, sleep deprivation was to be induced by shackling the subject in a standing position, with his feet chained to a ring in the floor and his arms attached to a bar at head level, with very little room for movement.

Compare that with the description of sleep deprivation as it appears in the Bybee Two memo.

Sleep deprivation may be used. You have indicated that your purpose in using this technique is to reduce the individual’s ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate. The effect of sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction. 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. [my emphasis]

The description in the OPR Report for this torture technique, at least, matches what appears in the Bybee Two memo.

Also note the admission (which I had never noticed before) that CIA had already subjected AZ to sleep deprivation but don’t worry, AZ was A-Okay as a result.

you have previously kept him awake for 72 hours

Though their admission to 72 hour sessions of sleep deprivation doesn’t accord with AZ’s memory of his first several weeks in the black site, which describe being kept awake for weeks at a time (perhaps 11 days?), using the shackling technique that OLC would go on to eliminate from their description of sleep deprivation:

I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next 2 to 3 weeks.

[snip]

I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water on my face.

From all this we can make several educated assumptions about the list included in the OPR Report. First, it includes the torture techniques as ultimately incorporated in the torture memos; this is not the list that CIA first brought to OLC. Moreover, we know that the description of sleep deprivation, at least, was watered down to hide the most appalling aspects of the technique that, even though they weren’t described, had already taken place.

Oh, and they were probably lying about the one detail they admitted to, how long they had subjected AZ to sleep deprivation.

But we already knew that.

That said, we know the OPR Report’s list isn’t the final list, either. The OPR Report list still shows, in unredacted form, diapering as a technique. We have no idea when or why that we eliminated from the list. And we know the redacted 12th technique is mock burial, which was eliminated some time after July 24, 2002, though we don’t know when, specifically, that happened. Note that the description of that 12th technique–mock burial–continues onto PDF page 43, so the description of it may include more detail on how it was eliminated from the list.

In other words, at best, this is an interim list. The list may simply reflect the final form that each torture technique request had before it was either incorporated into the Bybee Two memo or eliminated from the list.

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OPR Working Thread Part Three

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Happy Sunday.

Here are the HJC copies of all these documents:

And burnt has made available searchable copies to everything here.

My notes on the first draft are here.

My notes on the second draft, the Mukasey response, and the Yoo response are here.

I’m going to go through the first Bybee response in this thread. All page references will be to the PDF page, not the document page.

Mahoney’s Lies

I have read enough of Margolis’ response to have had the impression that Maureen Mahoney, Bybee’s lawyer, was much more attentive to her client’s needs than Bybee was when he was working in OLC.

But the first paragraph–which is replete with outright errors and propaganda–changes my mind on that front.

Six months after the September 11,2001 attacks, United States forces captured top al Qaeda leader Abu Zubaydah. Because Zubaydah had assumed the role of chief military planner for al Qaeda, he possessed critical imminent threat information. In particular, the Central Intelligence Agency (“CIA”) determined that Zubaydah had information about a “second wave” of devastating attacks targeting, among other things, the tallest building in Los Angeles. After Zubaydah resisted traditional interrogation methods, the CIA developed an enhanced strategy for Zubaydah and asked the attorneys at the Department of Justice’s Office of Legal Counsel (OLC) for its opinion on the legality ofusing ten specific interrogation techniques to interrogate him. The request required OLC to interpret the federal criminal anti-torture statute found at 18 U.S.C. §§ 2340-2340A-a statute that had never before been interpreted by any court. The statute defines torture as an act “specifically intended to inflict severe physical or mental pain.”

It is true that they captured Abu Zubaydah (aka “Boo boo”) roughly six months after 9/11. But almost everything else in this paragraph is false–and was known to be false when Mahoney wrote it. We know that AZ was not a top AQ leader, was not the chief military planner for AG (ferchrissakes, KSM was!). It is true that CIA claimed AZ had information about a second wave of attacks. But he didn’t. We also know that AZ responded to traditional interrogation methods. And OLC was not asked to opine on the legality of ten techniques. They were asked to opine on twelve (the ten that got approved, plus diapering and mock burial). And it wasn’t until days before the opinion was released that CIA asked for approval of those specific techniques.

In short, Mahoney’s response is premised on known lies.

Maybe we should report her to her bar council…

As it turns out, this is not just empty lies–she returns to this false portrayal of what happened later in the document to support her argument that this was a limited opinion.

On March 28, 2002, American and Pakistani intelligence agents captured Abu Zubaydah, a top al Qaeda leader. After the death of Mohammed Atef during the American invasion of Afghanistan in November 2001, Zubaydah had assumed the role of chief military planner for al Qaeda, ranking in importance only behind Osama bin Laden and Ayman Zawahiri. Shortly after Zubaydah’s capture, in early April 2002, the CIA’s Office of General Counsel began discussions with the Legal Advisor to the National Security Council (“NSC”) and OLC concerning the CIA’s proposed interrogation plan for Zubaydah. OPR gives no weight to and even fails to acknowledge that the Techniques Memo related only to Zubaydah, a known, hardened terrorist, trained in resistance whose mental and physical conditions were known to the CIA. The CIA asked OLC to evaluate the legality of ten specific interrogation methods proposed for use with Zubaydah.3

Of course, we know they were already subjecting Binyam Mohamed to sleep deprivation at this time.

Who reviewed the document

This is interseting. Maybe Mahoney wants to provide us more detail of the review process, because that doesn’t appear in the report.

Various drafts of the memos were reviewed by the Attorney General, the White House Counsel, the Deputy White House Counsel, the CIA General Counsel, the NSC General Counsel, the Attorney General’s legal advisor, the Head of DOJ’s Criminal Division, and the Vice President’s Legal Counsel.

Especially since almost all of these people were more involved in the memo with Bybee’s name on it than Bybee was.

But it’s also interesting because it puts Addington more strongly in the mix than he admits.

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