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Mudd Wrestling and Torture

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Spencer’s got one of the big scoops of the day: that Philip Mudd left the FBI about six weeks ago (so early March).

Philip Mudd, one of the intelligence community’s leading al-Qaeda analysts, has quietly retired from the FBI, where he was associate executive director of the National Security Branch. Mudd confirmed in an email that he left “about six weeks ago,” but didn’t immediately respond to additional questions about his departure.

Mudd was a longtime CIA counterterrorism specialist before coming to the FBI, but it doesn’t appear as if he’ll return to his home agency. This could be it for Mudd’s government career.

Spencer describes Mudd as one of the smartest guys on al Qaeda in government (here’s Mark Hosenball’s report on this, repeating the superlatives). But, last year, when he was nominated to take over Department of Homeland Security’s intelligence side, he was forced to withdraw his nomination after Senate staffers questioned whether he had ties to the torture program.

The White House nominee to be the undersecretary of intelligence and analysis at the Department of Homeland Security has withdrawn, he and the White House said in statements Friday. 

The withdrawal of the nomination of Philip Mudd, a veteran CIA analyst who had worked in recent years as a senior executive at the FBI, comes after an AP report yesterday. The report said that a Republican lawmaker planned to question Mudd over whether he had “direct knowledge” of the Bush-era harsh interrogation program while serving in a senior analytical role at the CIA.

The sinking of the nomination of someone who had served in an analytical capacity at the CIA, rather than in an operational or senior policy one, shows the broad scope of exposure to the controversial Bush-era harsh interrogation program for officials who did not obviously have a direct role in the program.

An aide to Sen. Susan Collins (R-ME) told the AP that “Mudd’s analysts used information obtained through harsh interrogations, and the official said that Mudd is likely to be questioned on whether the analysis branch pressured interrogators in the field to use harsher methods because they believed detainees were not telling the truth.” Collins sits on the Senate Homeland Security and Government Affairs committee that oversees the DHS. [my emphasis]

Now, I didn’t make the connection between these two events last year, but since I’ve been reading the questions CIA’s Inspector General was (probably) asking a manager at CTC in February 2003, I happen to have read this passage of the CIA IG Report just this morning.

Handgun and Power Drill
91. [Redacted] interrogation team members, whose purpose it was to interrogate al-Nashiri and debrief Abu Zubaydah, initially staffed [redacted]. The interrogation team continued EITs on Al-Nashiri for two weeks in December 2002 [redacted] they assessed him to be “compliant.” Subsequently, CTC officers at Headquarters [redacted] sent a [redacted] senior operations officer (the debriefer) [redacted] to debrief and assess Al-Nashiri.

92. The debriefer assessed Al-Nashiri as withholding information, at which point [redacted] reinstated [redacted] hooding, and handcuffing. Sometime between 28 December 2002 and 1 January 2003, the debriefer used an unloaded semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information.44 After discussing this plan with [redacted] the debriefer entered the cell where Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri’s head.45 On what was probably the same day, the debriefer used a power drill to frighten Al-Nashiri. With [redacted] consent, the debriefer entered the detainee’s cell and revved the drill while the detainee stood naked and hooded. [my emphasis]

Of note, the torturers had deemed al-Nashiri compliant. But CTC decided he had more information and sent out an operations guy to further question him, which is what led to two death threats being used against al-Nashiri (the kind of threats John Yoo had specifically refused to approve around July 25, 2002).

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The Interview Questions

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I talked yesterday about one of the puzzling documents in last week’s FOIA dump. In this post, I wanted to try to figure out why the most puzzling document–the Interview Questions from PDF 106-108. The document has no date nor any office information–it’s just a 3-page list of questions marked Top Secret.

Given how little we have to go on, this is just a wildarsed guess. But I’m guessing the questions were used in CIA Inspector General’s review of the torture program while interviewing someone who, while at CTC, had had a supervisory role over the program. And I’m guessing John Durham withheld this document under the law enforcement privilege because he was using these questions to make better sense of the interview report, which presumably is one of the interview reports identified to have ties to the torture tapes, but which remains classified.

At first, I wasn’t sure this was a set of questions from the IG Report. But question 24, which asks about a specific EIT used with Rahim al-Nashiri at what must be a third black site, maps onto the IG Report’s description of the use of a gun and a drill to threaten al-Nashiri in what, too, must have been al-Nashiri’s second black site (because we know the Thai black site closed in December 2002). Significantly, it was a CTC debriefer who made these death threats against al-Nashiri.

In addition to the interview report of John McPherson (PDF 33-37) there are two or three IG interview reports associated with the torture tapes. The Vaughn Index of hard-copy documents shows an interview report dated February 19, 2003. The interrogation index shows interview reports from February 3 and February 10, 2003.  Assuming these are three different interviews, one of the interviews is probably the interview in question. Significantly, we know from a number of Vaughn Index entries that there was some discussion about how to arrange for the IG to review the tapes on February 7, 2003, so it’s possible that the interview in question preceded the IG’s efforts to go review the tapes.

In any case, the items of interest to John Durham’s investigation must be the CTC officer’s response to the following two or three questions.

8. What is the background related to the decision to videotape interrogations [redacted]?

9. What are your views regarding whether the tapes should be destroyed?

10. What was the rational [sic] for transferring responsibility from [redacted]?

I’m assuming the answers to those questions–in one of the actual interview reports–is considered too classified to be released in any form.

One more item on this point. Note the document at PDF 95-99, which is clearly someone within the IG office forwarding a trip report from the torture review to the person who originally wrote the trip report. Most of this clearly pertains to the review of the videotape. But the last two paragraphs or so refers to three interviews.

Finally, one more question all this raises. When did the IG decide to review the torture tapes? When did the IG review become the big delay on destroying the torture tapes? We know it happened before February 5, 2003, when Scott Muller briefed Jane Harman and Porter Goss, because she references the IG review in her letter objecting to their destruction. But the Abu Zubaydah document written some time in January doesn’t mention an IG review.

The Abu Zubaydah Document

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One of the most curious documents turned over in last week’s FOIA dump is the last one, titled “The CIA Interrogation of Abu Zubaydah” (PDF 110-122). While these are just wildarsed guesses, I suspect it may either have been a summary developed for the CIA Inspector General’s office for use in its review of the torture program or a summary to prepare Stan Moskowitz, then head of CIA’s Office of Congressional Affairs, to brief the Gang of Four in early February 2003.

The Timing

This document must have been written between January 9 and January 28, 2003. On PDF 117, the document describes CIA’s Office of General Counsel completing its review of the torture tapes; that report was finalized on January 9. The same page describes the “Guidelines on Interrogation Standards,” which was ultimately signed by George Tenet on January 28, as not yet having been approved. The document makes no mention of the Inspector General’s plan to review the torture tapes impacting the decision on destroying the torture tapes, that decision was initiated in early February. It also refers to the need to brief Congress on the torture tapes in the future.

The Structure

The document includes a long Top Secret section, followed by a short summary of the document classified Secret. That suggests that the audience of this document might in turn have its own audience with which it could use the Secret summary. So, for example, if the IG were the audience, it might be permitted to use the summary description in its final report. If Gang of Four members were the audience, they might be permitted to keep the Secret summary but not to see the Top Secret report.

The Top Secret section of the document has the following sections (each section has its own classification mark, which shows in the margin, which is how we know where redacted titles appear):

  • Abu Zubaydah: Terrorist Activities
  • Injuries at Time of Capture
  • Highlights from Reporting by Abu Zubaydah
  • [Completely redacted section]
  • Interrogation Techniques Used on Abu Zubaydah
  • [Redacted title and page and a half, though this section includes discussion of videotapes and training, which suggests the section describes the management controls on the torture]
  • [Completely redacted section]

The Hand-Written Notes

Curiously, this document showed up in the January 8, 2010 Vaughn Index but not–as best as I can tell–in the November 20, 2009 Vaughn Index (or, if it showed up in the earlier Index, John Durham had not yet protected it under a law enforcement privilege). That means that the document existed as an electronic document. Yet, as the Vaughn Index tells us, this document has “handwritten marginalia” on it. These are presumably what the redactions are to the right of the main text on PDF 111 and 112. The redactions on PDF 113 are also wider than other sections, suggesting there is marginalia there, too.

In other words, the reader of this document made notes in response to the following claims (in addition to whatever appears in the long redacted section on PDF 113):

  • [AZ] was heavily involved in al Qa’ida’s operational planning, and had previously been an external liaison and logistics coordinator.
  • Abu Zubaydah was provided adequate and appropriate medical care.
  • Abu Zubaydah identified Jose Padilla and Binyam Muhammad as al-Qa’ida operatives who had plans to detonate a uranium-topped “dirty bomb” in either Washington DC, or New York City.

The first and third of these claims, of course, are somewhat dubious (though the first is more restrained than the CIA was publicly making at the time). So the reader may have been questioning these claims. And the notation next to the claim about AZ’s “adequate” medical care reminds me of the Ron Suskind report that George Bush got enraged when he learned AZ had been given pain killers. In any case, these notations suggest the reader of this document may have had a very high level of information on AZ.

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The Timeline of Torture Tape Destruction in John Durham’s Documents

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As I said the other day, most of the documents we received the other day are the 13 or so documents that CIA had cleared for FOIA release, but over which John Durham had declared a law enforcement privilege. This chart compares what we got with what had been declared in Vaughn Indices in November (this showed the hard copy documents explaining the destruction of the torture tapes) and January (this showed the electronic documents discussing the destruction of the torture tapes; there are 6 files total to this index). While this doesn’t show us everything John Durham is looking at (presumably, there are a number of documents that are too sensitive to release), looking at the documents from this perspective gives us a sense of what Durham is investigating.

As you’ll see from the chart, I have numbered the documents from 1 to 27. I just assigned them in the order the documents appear in the complete PDF file. I’ll also refer to the PDF number for each document.

The Documents Not on Durham’s List

First, assuming I matched the documents up to the Vaughn descriptions properly, there are four documents that were not on Durham’s list:

  • Document 9, January 9, 2003, Review of Interrogation Videotapes (PDF 24-28)
  • Document 11, June 18, 2003, Interview Report (PDF 33-37)
  • Document 22, December 3, 2007, Potential Statement (PDF 86-93)
  • Document 23, December 10, 2007, Trip Report (PDF 95-99)

I believe these documents all did appear elsewhere in the earlier FOIAs on this (I’m going to try to find the Vaughn descriptions later), but presumably CIA had earlier said it could not release them, which meant it was that decision, rather than Durham’s determination, that had prevented their earlier release.

Most of these documents (except the questions) pertain to the CIA Office of General Counsel review of the torture tape, and the Inspector General’s subsequent discovery that the original review had neglected to mention key details about blank tapes and discrepancies between what was portrayed in the video and what OLC authorized. Curiously, their release seems to be tied to the events reported by the WaPo, in which John McPherson, reportedly the lawyer who conducted that review, was given immunity to testify before the grand jury in the last month or so. In other words, now that McPherson has testified about this stuff, CIA has decided to release the details of his review publicly. I have included the documents in the timeline below.

Update: I’ve added in some of the dates reflected in the Vaughn Indices that I think flesh out this timeline. Those dates will not be bolded.

The Chronology on the Tapes

Many of the rest of these documents pertain to the correspondence regarding videotapes. The chronology they show is:

April 13, 2002: Interrogators start videotaping interrogations.

April 17, 2002: Two page Top Secret cable providing guidance on the retention of video tapes.

April 27, 2002: A letter directing the tapes “should all be catalogued and made into official record copies” and asking when they would “arrive here.” (Document 1; PDF 1)

May 6, 2002: Someone sends a cable providing guidance to “please do not tape over or edit videos of Abu Zubaydah’s interrogations” and “please preserve all videos.” Note, we don’t get the original copy of this, but it appears in an email forwarding the cable to Scott Muller and John Rizzo in January 2003. (Document 10; PDF )

September 5, 2002: According to October 25, 2002 cable (see below), “HQS elements discussed the disposition of the videotapes” and determined that “the continued retention of these tapes … represents a serious security risk.” (Documents 2 and 3; PDF 3-7)

September 6, 2002: Two emails: A five-page email between CIA attorneys regarding a draft of a cable discussing the disposition of the video tapes, and a one-page email between CIA attorneys on the revisions of a draft cable regarding the disposition of the video tapes.

October 25, 2002: Cable directing field to tape over tapes each day and promising someone will deploy to assist in destroying the existing tapes. (Document 2, Document 3; PDF 3-7)

October 27, 2002: Some excerpts the October 25 cable and another one (which is entirely redacted) into a one-page summary. Note that both prior cables were classified Secret, but this summary is classified Top Secret. (Document 4; PDF 9)

November 28, 2002: It appears this cable was included among those collected in Document 12 some time after the tape destruction. But what we got in FOIA cuts off the cable (and entirely redacts what is there). (PDF 39-50) Note that the November 11, 2009 Vaughn Index described document 12 as a 13 page document, but we’ve only got 12 pages.

November 30, 2003: John McPherson reviews the torture tapes. This is noted in an undated timeline of the facts surrounding the torture tape destruction. (Document 25; PDF 103-104)

December 1, 2002: A two-page email that discusses the notes of a CIA attorney.

December 3, 2002: After McPherson reviewed the videotapes on November 30, someone sent out a cable stating that it was a mistake to move the videotapes, and ordering that “no tapes will be destroyed until specific authorization is sent.” Documents 5, 6, and 7 all appear to be identical copies of this cable, save for routing information that is redacted; the routing on Document 6 is very long. (PDF 11-18)

December 3, 2002: A one-page email outlining the destruction plan for video tapes.

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CIA’s Lawyer Did Not Find Alteration of Torture Tapes “Noteworthy”

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As I noted in my last thread, the latest ACLU document dump is here. And this is, indeed, the set of documents John Durham was withholding for his investigation.

I’ve long been interested in the role of the earlier destruction of the torture tapes in Durham’s investigation. As you recall, in December 2002, when the interrogators were getting antsy to destroy the torture tape, a CIA Office of General Counsel lawyer, John McPherson, reviewed the torture tapes to make sure they matched the cables. He reportedly said the tapes matched the logbooks and the direction the interrogators received. But when CIA’s Inspector General reviewed the tapes in May 2003, they discovered that 15 of the tapes were largely or completely blank and or damaged.

OIG found 11 interrogation tapes to be blank. Two others were blank except for one or two minutes of recording. Two others were broken and could not be reviewed. OIG compared the videotapes to logs and cables and identified a 21-hour period of time” which included two waterboard sessions” that was not captured on the videotapes.

I’ve long wondered whether one of the reasons the CIA destroyed the torture tapes is because a review of the tapes would have revealed that the torturers altered the tapes to avoid capturing certain activities on video. The latest dump appears to confirm this happened before December 2002.

On January 9, 2003, McPherson did a report on his review of the tapes (PDF 24-28). Though it is heavily redacted, it appears that he reviewed the log book and the video, claimed to have watched every minute of the video, and declared that the video accurately reflected what had been recorded in the logbook.

Note, it is not clear from the unredacted materials whether he reviewed the guidance to the interrogators as to what they were supposed to be doing–even though that was purportedly one of the reasons he conducted the review.

It appears that PDF 33-37 is the interview report the Inspector General did with McPherson on June 17, 2003, after they had reviewed the torture tapes themselves in May 2003. This report appears to show McPherson admitting that he saw some of the tapes were partially blank, or had snow on them.

[Redacted] for many of the tapes one 1/2 or 3/4 of the tape “there was nothing.” [Redacted] on some tapes it was apparent that the VCR had been turned off and then turned back on right away. [Redacted] on other tapes the video quality was poor and on others the tape had been reused (taped over) or not recorded at all. [Redacted] The label on some tapes read “interrogation session,” but when viewed there was just snow. [Redaction] did not make note of this in [redaction] report. [Redaction] estimated that “half a dozen” videotapes had been taped over or were “snowy.”

Though he claims not to have noticed that two of the tapes were broken (though perhaps they were broken later). When asked why he had not reported the blank tapes in his report, McPherson said he didn’t find that “noteworthy.”

Furthermore, it appears to indicate that McPherson had not reviewed the guidelines given to the interrogators when he did his review.

When asked if it was consistent with guidance [redacted] would have to check guidance before answering.

In other words, his review did not do what it was purported to do. It did not review whether the interrogators were following guidelines.

After the initial December 2002 review, CIA gave clear instructions to the interrogators not to destroy or edit the tapes. However, it appears that the review–inasmuch as it didn’t reveal glaring concerns with the tapes and didn’t actually review whether the interrogators were following instructions–was largely a whitewash of the original tapes in an effort to green light their destruction.

CIA Lawyers Were Discussing “Issue that Arose” Three Days Before July 13 Fax

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My focus on the multiple versions of Abu Zubaydah’s psychological assessment led me to review the CIA OIG Vaughn Declaration from last August, and one document that was withheld caught my eye.

The document strongly suggests that the July 13, 2002 John Yoo fax that appears to have been used as CIA’s general authorization for torture was written in response to a specific issue that had already arisen with Abu Zubaydah.

The Vaughn Index was written in response to ACLU’s FOIA for documents relating to what would have been shown on the 92 destroyed torture tapes. From the descriptions in the Vaughn, it’s clear that most of the documents include things like plans for torture techniques written both before after after Abu Zubaaydah’s torture, plans for black sites, communication about the investigation into detainee treatment (I presume that treatment of al-Nashiri would be included, since his interrogations were also on the destroyed tapes, but not the Salt Pit death of Gul Rahman, which wasn’t taped), and interviews from the investigation.

And though there are a few documents that clearly are efforts to improve on the techniques used against AZ (including pictures), there are relatively few documents in CIA IG custody from the period of AZ’s most intense interrogation. There are:

  • “4-pages of handwritten notes, dated April 3, 2002, by a CIA officer regarding the interrogation of Abu Zubaydah.”
  • “A 1-page email,” dated April 5, 2002, “with an attached two page cable from a CIA attorney to a CIA officer regarding the interrogation of Abu Zubaydah.”
  • A “four page cable from the field to CIA Headquarters,” dated April 11, 2002, containing “information relating to the CIA’s terrorist detention and interrogation program” (note, this was the day Yoo officially started on the Bybee Memo).
  • A May 15, 2002 “two page memo from one CIA officer to another CIA officer discussing information, provided by Abu Zubaydah, relating to a classified counter-terrorism operation.”
  • A “1-page of handwritten notes dated July 24, 2002 from a CIA officer describing proposed interrogation techniques that could be considered for use on detainees.”
  • A “two page cable from the field to CIA Headquarters,” dated August 12, 2002, and “a 6-page cable from the field to CIA Headquarters,” dated August 24, 2002, both containing “information relating to the interrogation of Abu Zubaydah.”

(There’s also a cable listed with the date July 26, 2006, which given its place in the Vaughn Index might actually have been dated July 26, 2002, discussing AZ’s status.) There are also a few documents that pertain to discussions in DC (for example, a Memorandum of Understanding recording CIA’s version of an early meeting on the Bybee Memo).

Then there’s the email that sparked my interest, labeled Email-591, dated July 10, 2002, and classified as Top Secret.

This document is a 2-page email chain between CIA attorneys. The document contains the attorneys’ legal analysis as it relates to a specific issue that arose in the context of the CIA’s counter-terrorism program, which was created in anticipation of litigation.

In other words, on July 10, 2002, two of CIA’s lawyers were discussing something that came up–almost certainly (given the scope of the FOIA response) during Abu Zubaydah’s interrogation–in anticipation of litigation. And three days later, CIA lawyer John Rizzo would attend a meeting at which DOJ Criminal Division head Michael Chertoff refused to give CIA an advance declination for any crimes committed during Abu Zubaydah’s interrogation and FBI Chief of Staff Daniel Levin announced that the FBI would no longer have anything to do with the CIA’s interrogation program. Ostensibly, those responses came partly in response to Rizzo’s description of purportedly proposed torture techniques. Yet after that meeting, Rizzo asked John Yoo for a letter “setting forth the elements of the torture statute.” And the fax Yoo wrote in response–rather than the formal Bybee One opinion–would serve as CIA’s internal guide for the role of intent in the torture statute, particularly the way intent purportedly played into torture having to do with the infliction of several mental suffering.

All of which suggests the torturers did something to inflict severe mental suffering on Abu Zubaydah–one the CIA’s own lawyers recognized might result in litigation–just before July 10, 2002.

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Abu Zubaydah Experienced “Hard” Dislocation After Session 63

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Whoever wrote Abu Zubaydah’s psychological evaluation claimed to have succeeded in subjecting Abu Zubaydah to “hard” dislocation after his 63rd session of torture. And that claim was made before OLC approved the use of torture with him.

I’ve long been aware that we got two versions of Abu Zubaydah’s psychological evaluation last August: the copy purportedly faxed to John Yoo on July 24, 2002. And the copy faxed to the Inspector General on January 31, 2003 as it began its investigation. I had reviewed them last August and–while I found some weird details I’ll get to in a second–had concluded that they were effectively the same content.

They’re not.

The key difference appears in the top paragraph on the fourth page of the evaluation. The copy purportedly sent to Yoo includes these sentences:

In addition, he showed strong signs of sympathetic nervous system arousal (possibly fear) when he experienced the initial “confrontational” dislocation of expectation [] during an interrogation session. Due to his incredibly strong resolve, expertise in civilian warfare, resistance to interrogation techniques (the latter two which he trained hundreds of others on) this experience was one of the few that led to him providing significant actionable intelligence. [my emphasis]

In the copy sent to the IG the following year, that passage reads this way.

In addition, he showed strong signs of sympathetic nervous system arousal (possibly fear) when he experienced the initial “hard” dislocation of expectation intervention following session 63. Due to his incredibly strong resolve, expertise in civilian warfare, resistance to interrogation techniques (the latter two which he trained hundreds of others on) this experience was one of the few that led to him providing significant actionable intelligence. [my emphasis]

The copy sent to the IG identifies precisely when this dislocation happened–after session 63–and calls it “hard” dislocation rather than “confrontational.”

I’ll leave it to the psychologists in the crowd to explain precisely what they mean by the phrase “dislocation of expectation.” And while we don’t know what numbering system the torturers were using for their torture sessions, if they had daily sessions the 63rd would have come some time in mid-June. Long before this memo was written. Whatever else this detail shows, it shows that the torturers were far down the path of torture before they wrote this assessment and they had already broken Abu Zubaydah.

Now, I said above that the first assessment linked here was “purportedly” sent to John Yoo on July 24. That’s because (as I and I think others have pointed out before) the document provides conflicting dates. The cover sheet is dated July 24. The instruction for Yoo to “call me at work or at home, whenever” reflects some degree of urgency. But the following pages clearly show a fax timestamp from July 25 at 5:02 PM. Unless this was a dateline issue (that is, unless it was sent from Thailand or something), then the copy we’ve got–the one with the session number removed–is a later iteration of the assessment.

Also note that the fax cover sheet of the July 24/25 version says the document includes 7 pages. And indeed, we do get seven pages. But the Bates stamp in the bottom right hand corner are missing a page from the series, 0000001 (in fact, the series seems to be different, given the “T” that appears on the cover sheet). Note, too, the Bates numbers from the top right hand corner, which show someone couldn’t decide whether this was document 71 or document 79 (the number 71 is the number from IG’s FOIA response).

One more interesting detail. Both of these assessments came from CIA’s IG. (Though the second number on the front page of the July 24/25 document bears a number showing it was once in Counterterrorism Center’s legal department.) Thus, even though we know OLC probably got at least two drafts of the assessment (one on July 24 and one on July 25), we haven’t seen the copy they should have in their SCIF.

Oh wait. OLC’s SCIF.

That would be OLC’s leaky SCIF, from which documents have a way of disappearing. In fact, one of the documents we know to have disappeared from OLC’s SCIF bears the date July 25, 2002. The missing document is probably not the same document (the missing document is much longer). But as I’ve said, it’s an awfully suspicious day to be losing documents.

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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Durham Going after the First Destruction of Torture Tapes?

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Bmaz had a post up this yesterday, based on this WaPo story, concluding that we’re not going to have real accountability for the destruction of the torture tapes. (Thanks to bmaz for minding the shop while I feted mr. ew’s birthday.)

While I agree with bmaz generally that we’re not going to get real accountability out of this investigation, I’m not sure I agree with bmaz’s other conclusions. Here’s why.

As bmaz noted, the big piece of news in this story is that Durham just did or is about to give immunity to John McPherson, who appears to be the CIA Office of General Counsel lawyer who reviewed the torture tapes in November to December 2002, purportedly to make sure the tapes matched the descriptions of allowable torture in the Bybee Two memo.

Assistant U.S. Attorney John H. Durham, who is leading the investigation, recently bestowed immunity from prosecution on a CIA lawyer who reviewed the tapes years before they were destroyed to determine whether they diverged from written records about the interrogations, two sources familiar with the case said. That could signal that the case is reaching its final stages. Durham has been spotted at Justice Department headquarters in Washington over the past few weeks, in another signal that his work is intensifying.

The agency lawyer, John McPherson, could appear before a grand jury later this month or in April, according to the sources, who spoke on the condition of anonymity because the investigation continues. CIA lawyers have been essential to understanding the episode because they offered advice to agency personnel about handling the tapes, and whether they should have been included when agency records were turned over in other court cases. McPherson is not thought to be under criminal jeopardy but had previously hesitated to testify, the sources said.

As you recall, the CIA IG Report gave us two critical pieces of information about this review:

The CIA OGC lawyer (presumably, McPherson) reported that the tapes did match the descriptions of allowable torture in the Bybee Two memos.

An OGC attorney reviewed the videotapes in November and December 2002 to ascertain compliance with the August 2002 DoJ opinion and compare what actually happened with what was reported to Headquarters. He reported that there was no deviation from the Do] guidance or the written record.

But the CIA OGC’s own review of the torture tapes revealed that the waterboarding shown on the tapes did not match the descriptions of allowable waterboarding.

OIG’s review of the videotapes revealed that the waterboard technique employed at was different from the technique as described in the DoJ opinion and used in the SERE training.

The implication, then, is that McPherson was not entirely truthful when he claimed the torturers had not exceeded the allowable limits when he did his review.

Which explains why his lawyer worked to get him immunity before he testified, and explained why Durham hasn’t given it before now: this McPherson appears to have lied in his review of the torture tapes.

And there’s one more detail of importance. As you recall, when the CIA IG reviewed the torture tapes in May 2003 (that is, five months after McPherson’s review), there were 15 tapes in some state of damage or erasure.

OIG found 11 interrogation tapes to be blank. Two others were blank except for one or two minutes of recording. Two others were broken and could not be reviewed. OIG compared the videotapes to logs and cables and identified a 21-hour period of time” which included two waterboard sessions” that was not captured on the videotapes.

You see, John Durham is investigating two incidents of torture tape destruction: the first, when in 2002 or 2003 someone removed evidence of two sessions of waterboarding (and potentially, the use of mock burial that would be declared torture by John Yoo) from the videotapes. And the second one, on November 8, 2005, when someone destroyed all the tapes, which not only destroyed evidence of waterboarding that violated the terms of the Bybee Two memo, but also destroyed evidence of the first round of destruction.

And John McPherson is likely the only person who can pinpoint when the first round of destruction occurred, before or after November-December 2002.

Now, all that doesn’t tell us precisely what Durham is after or whom, though I’d suggest he’s at least as interested in the people in the loop of the first round of destruction as the second.

Which means it is almost certainly premature to suggest that Jose Rodriguez is in the clear here. The WaPo focuses on Rodriguez’ role, as head of the Directorate of Operations in 2005, in ordering the 92 tapes to be entirely destroyed. But my analysis here suggests his role in 2002-3, when he was head of CIA Counterterrorism Center, is just as important. And if, as WaPo suggests, someone working closely with Rodriguez lied to the grand jury, then chances are good that Rodriguez was involved in the activities involved in the subject of lying. (Remember that Rodriguez’ lawyer, Robert Bennett, has consistently refused to let Rodriguez testify under oath, preferring instead to produce fictions about Rodriguez’ role for the WaPo to obligingly print.)

I agree with bmaz in concluding that this inquiry is likely not to charge anything beyond obstruction or false statements. But if the target is Rodriguez, which I’d bet money to be the case, he’s not directly responsible for the torture in any case.

The Request for Reaffirmation of Torture

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This is going to be another weedy post…

I wanted to put two totally bureaucratic pages (PDF 23-24) from the recent FOIA dump into the context of the other known documents in the chronology. The first page is an “Executive Correspondence Routing Sheet,” sent from CIA General Counsel Scott Muller around top CIA management for approval. It reads:

This memo follows General Counsel discussion with the DCI and agreement on the need to seek reaffirmation from the NSC.

And the memo in question (the following page) appears to be a very short memo with the subject, “Review of CIA Interrogation Program,” from John Rizzo circulated to the lawyers involved with the torture program and the top CIA executives on the Executive Correspondence Routing Sheet. The Rizzo memo is dated May 24, 2004; the last signature–that of George Tenet–is dated June 4, 2004.

The routing sheet is interesting not just because Tenet signed it the day after he resigned.

It also shows a glimpse of the bridge by which CIA responded to the CIA IG Report but also (probably) Jack Goldsmith’s unwillingness to reaffirm opinions that OLC had never made by asking the White House for some kind of written re-endorsement of the torture program.

As I’ve shown here and here, when the CIA Inspector General began its review of the torture program in response to the Salt Pit death and abuses of al-Nashiri, CIA and Jennifer Koester and John Yoo (though he denies involvement) worked back channel to develop a set of “Legal Principles” (elsewhere called “Bullet Points”) that would expand the legal authorization DOJ had given CIA’s torture program in such a way as to legally excuse the crimes the IG was inspecting. Significantly, the Legal Principles document expanded the already farcical analysis of Article 16 of the Convention Against Torture that Yoo had done in the Bybee One memo.

CIA twice tried to present these Legal Principles to OLC as a fait accompli, first in June 2003, when Patrick Philbin took over many of John Yoo’s duties, and then again in March 2004, in conjunction with the finalization of the IG Report and at a time when Goldsmith headed the OLC. Both Philbin and Goldsmith refused to accept the Legal Principles as OLC sanctioned documents.

Now, significantly, the March 2, 2004 set of Legal Principles was itself a request for “reaffirmation” of the torture program’s legality. Scott Muller emphasized CIA needed that reauthorization, among other reasons, because they had incorporated new torture techniques based on the OLC “guidance.”

For example, using the applicable law and relying on OLC’s guidance, we concluded that the abdominal slap previously discussed with OLC (and mentioned in the June 2003 summary points) is a permissible interrogation technique.

Of note, Goldsmith appears to have taken special note of the description of water PFT, which (Muller’s note said explicitly) was “intended to … humiliate” detainees. Given that the IG Report concluded that the torture program probably violated Article 16, this language seemed to flout the prohibitions against cruel, inhuman, and degrading treatment.

Between March 2 and May 24 (when Rizzo wrote his memo), Goldsmith did not reauthorize the Legal Principles. Nevertheless, CIA incorporated the Legal Principles into the final draft of the IG Report. Goldsmith got a copy of that document some time before May 25 and presumably spoke to Muller about the inclusion of the Legal Principles in it, because on that day, he wrote CIA’s IG noting that he had received it and asking for time to review the depiction of OLC’s legal advice in the IG Report before it got sent to Congress.

In other words, Goldsmith’s continued objection to the inclusion of the Legal Principles in the IG Report is probably what prompted John Rizzo to send out a memo referencing the IG Report (which the CIA called the “Review of the CIA Interrogation Program,” the subject of his memo) that appears to have recommended asking NSC for reaffirmation of the torture program.

So faced with Goldsmith’s refusal to reaffirm something OLC had never affirmed in the first place, CIA decided to go to the White House and get them to approve of the program in writing. Read more →