Posts

Meet David Passaro, the Only CIA Guy Prosecuted for Detainee Abuse

/85 Comments/in /by

As I said in my last post, bmaz and I are about to let loose a slew of posts on David Passaro, the only CIA guy prosecuted for detainee abuse. I first decided to look into Passaro’s case given that he was prosecuted in relation to the death of an Afghan detainee, Ahmed Wali, in June 2004, whereas the CIA guy in charge of the Salt Pit was not prosecuted in relation to the death of Gul Rahman seven months earlier. Why, I wanted to know, was Passaro tried and convicted but Gul Rahman’s killer has, thus far, avoided any consequences for Rahman’s death.

As we’ll eventually see, Passaro’s lawyers tested many of the theories John Yoo laid out in his OLC memos.

Passaro was indicted in June 2004, not long after the Abu Ghraib scandal broke. He was tried and found guilty of assault in August 2006. He appealed his case to the Fourth Circuit, which last August rejected most of his appeal but remanded his case to the District Court for resentencing (his resentencing hearing was Wednesday and it’s quite likely his sentence will be lowered to the five years he has already served). Though Passaro appealed his case to the Supreme Court, they denied him cert. That means his case–and his failed effort to rely on some of Yoo’s theories–is legally binding for the Fourth Circuit, which just happens to cover both North Carolina (where JSOC is located) and Virginia (where CIA is located).

We’ll cover all those details in follow-up posts. In this one, I just wanted to introduce you to Passaro and the events he was convicted for.

Passaro is around 44 years old now (so was 37 when he served in Afghanistan). Though none of the court filings provide much detail about Passaro’s service, he is a former US Army Delta Special Forces medic, during which service he underwent SERE training. In 1990, he worked briefly as a cop in Hartford, CT, but got fired after being involved in a brawl (court filings mention one alleged and one other verified example of violent behavior on Passaro’s part). Ultimately, in 2002, he was hired as what is called a contract paramilitary specialist. He describes being trained in renditions–during which, playing the detainee, he underwent physical abuse–before heading to Afghanistan, but the government says he was not trained in interrogations. In Afghanistan, he worked with Afghan militia conducting patrols, gathering intelligence, and capturing “terrorists.”

Passaro started as a CIA contractor in December 2002. He arrived in Afghanistan around May 17, 2003, briefly worked somewhere else, then moved to Asadabad firebase in early June. By the time he moved to Asadabad, Passaro was reporting to a CIA field officer with no military experience and no prior foreign assignments who had arrived at Asadabad just a month before Passaro.

The Asadabad firebase is a 200 meter square mud fortress with 10-foot walls located 5 miles from the Pakistani border, northeast of Jalalabad, Afghanistan. By 2003, 225 people were stationed there, including members of the 82nd Airborne, Special Forces, CIA, CIA contractors, and (in a number of filings) people from an “Other Government Agency” that doesn’t appear to be the CIA. The firebase had been coming under rocket attacks that used white phosphorous starting in March 2003. Abdul Wali, whom Passaro was convicted of assaulting, was suspected of participating in those rocket attacks.

Passaro repeatedly pointed to some kind of classified information (probably intelligence from human sources) to support his claim that US forces knew Wali to be associated with the rocket attacks, and emphasized that Wali had been designated a force protection target before he was arrested; the government referred to him as a suspect who insisted on his innocence. On June 18, 2003, Wali turned himself into the the Americans through the intervention of the son of the Province’s governor, Hyder Akbar. No one did a medical intake exam of Wali when he turned himself in, though they did take a digital photo of him. There is some dispute over whose custody–DOD or CIA–he was in over the three days he was in US custody. In addition, there is some dispute about whether the head of the Special Forces team, Brian Halstead, or Passaro, ordered Wali to be sleep deprived and subjected to stress positions (they call the technique the “iron chair,” which is basically the kind of wall-sit you might do in a gym for very limited periods, though Wali was forced to maintain the position for an hour or more). It appears that three or four people, in addition to Passaro, interrogated Wali before his death, the identity of one which Passaro didn’t know. About 24 hours after he was detained, on June 19, Special Forces turned Wali over to the CIA; Passaro’s CIA supervisor asked him if “we wanted to take a crack at him.”

According to the government, when Passaro started questioning Wali, he told the guards, “his rules were different,” his “only rule was not to cause permanent injury.”

Read more →

How CIA Avoided Negligent Homicide Charges in the Salt Pit Killing

/95 Comments/in /by

Since the AP story on the Salt Pit death, reporters have focused a lot of attention to a particular footnote in Jay Bybee’s second response to the OPR Report and what it claims about intent (and, to a lesser degree, what it says about Jay Bybee’s fitness to remain on the 9th Circuit). In it, Jay Bybee references a memo CIA’s Counterterrorism Center wrote in response to Gul Rahman’s death at the Salt Pit; the memo argued that the CIA officer in charge should not be prosecuted under the torture statute because he did not have the specific intent to make Rahman suffer severe pain when he doused him with water and left him exposed in freezing temperatures.

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

As Scott Horton noted the other day, analysis of the torture statute should not have been the only thing in the declination memo. Prosecutors should have analyzed whether or not Rahman’s killing constituted negligent homicide, among other things.

Note that the declination, issued by politically loyal U.S. attorneys who were subsequently rewarded with high postings at Main Justice, carefully follows the rationalizations that Yoo and Bybee advanced for not prosecuting deaths or serious physical harm resulting from state-sanctioned torture. But the obvious problem, as John Sifton notes at Slate, is that torture and homicide are hardly the only charges that could be brought in such a circumstance. Negligent homicide or milder abuse charges would have obviously been available, and a survey of comparable cases in the setting of state and local prisoners suggests that they are far more common. By looking only at homicide and torture, the prosecutors were paving the way for a decision not to charge.

But the OPR Report and the Legal Principles/Bullet Points documents it describes may explain why this didn’t happen. The Legal Principles/Bullet Points document shows that CIA claimed–possibly, with the tacit approval of the Principals Committee–that the only two criminal statutes that could be applied to its interrogation program were the Torture Statute and the War Crimes Statute.

As a threshold matter, Horton appears to be misstating what the declination memo described in the footnote is and–more importantly–who wrote it. “Politically loyal US Attorneys” did not write the declination described here. Some lawyer at CIA’s CTC wrote it. That’s because, as the OPR Report explains in the section preceding the entirely redacted passage that discusses this letter (the declination letter appears on PDF 98, which appears in the same section as the following quotes from pages PDF 96 and 97), DOJ told CIA to go collect facts about the abuses they reported in January 2003 (which include the Salt Pit killing and threats of death used with Rahim al-Nashiri) themselves.

According to a CIA MFR drafted by John Rizzo on January 24,2003, Scott Muller (then CIA General Counsel), Rizzo and [redacted] met with Michael Chertoff Alice Fisher, John Yoo, and [redacted–probably Jennifer Koester] to discuss the incidents at [redacted]. According to Rizzo, he told Chertoff before the meeting that he needed to discuss “a recent incident where CIA personnel apparently employed unauthorized interrogation techniques on a detainee.”

[snip]

Chertoff reportedly commented that the CIA was correct to advise them because the use of a weapon to frighten a detainee could have violated the law. He stated that the Department would let CIA OIG develop the facts and that DOJ would determine what action to take when the facts were known. According to Rizzo, “Chertoff expressed no interest or intention to pursue the matter of the [redacted].

On January 28, 2003, CIA Inspector General John Helgerson called Yoo and told him that the CIA OIG was looking into the [redacted] matter. According to Helgerson’s email message to Rizzo, Yoo “specifically said they felt they do not need to be involved until after the OIG report is completed.” Rizzo responded to Helgerson: “Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division’s decision on whether or not some criminal law was violated here will be predicated on the facts that you gather and present to them.”

Alerted that, in the course of interrogating detainees, CIA had killed one and threatened to kill another detainee, DOJ’s first response (at least according to two different CIA versions of what happened) was to tell CIA to go collect information on the events themselves. Only after CIA finished investigating and presented the facts of the case would DOJ weigh in on whether a crime had been committed.

Read more →

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 →

How John Yoo Negated the Mental Suffering of Death Threats in the Bybee Two Memo

/53 Comments/in /by

It’s time to read the Bybee Two memo again.

Since the OPR Report came out, we’ve learned the following (some of it was already out there, but I, at least, hadn’t noticed it):

  • After his 63rd interrogation session, Abu Zubaydah experienced what his torturers call “hard dislocation”
  • An “issue arose” during the interrogation of Abu Zubaydah that two CIA lawyers discussed via email on July 10, 2002
  • In the days following CIA lawyers’ discussion of that issue, Criminal Division Chief Michael Chertoff got his own briefing on the torture memo (July 11), followed the next day by a meeting with Alberto Gonzales and probably David Addington (July 12), followed the next day by a larger briefing including Gonzales, Chertoff, John Rizzo and FBI Chief of Staff Daniel Levin that covered both the planned torture techniques and the torture memo (July 13)
  • After Chertoff told CIA at that July 13 meeting that he would not issue an advance declination of prosecution for torture, Rizzo asked for and received a memo laying out “the elements of the torture statute;” the July 13 memo focused closely on the definition of intent to cause mental suffering; Yoo’s supervisors John Ashcroft and Jay Bybee claim to be unaware of the memo
  • In his cable to AZ’s torture team written after both Bybee Memos were completed, Counterterrorism Center lawyer Jonathan Fredman relied on the language on intent from the July 13 memo, not the Bybee One memo
  • Also after the meeting at which Chertoff refused an advance declination, David Addington appears to have directed John Yoo to include several affirmative defenses in the Bybee One memo
  • The next draft of the memo–dated July 23 and for the first time addressed to Alberto Gonzales–included the affirmative defenses Addington had asked for as well as language on intent to cause mental harm adopted from the July 13 memo
  • In the days following that draft, several things happened to change the approach to torture authorization
  • CIA removed mock burial on its list of torture techniques because approving it would hold up the overall memo
  • CIA asked for a separate letter addressing specific techniques–what would become the Bybee Two memo
  • As part of several packets of information they received from CIA on the long term mental effects of torture, Yoo and Jennifer Koester almost certainly received a draft psychological evaluation noting that AZ had experienced “hard dislocation” after session 63, though we can’t prove that they saw that phrase because the copy of the document they received has been altered before being released in FOIA
  • A large packet of information received on the same day as one of the draft psychological evaluations disappeared from the OLC SCIF

All those details make it fairly clear that the Bybee Two memo was designed to respond to the July 13 memo. But they also help to prove that it failed to do what it was intended to do.

How John Yoo told the CIA to “negate” their specific intent to torture

Yoo’s July 13 memo stated that several things were necessary to prosecute torture for the infliction of mental suffering:

  • The commission of certain kinds of predicate acts, that included but were not limited to the use of procedures designed to profoundly disrupt the senses and/or the threat of imminent death
  • The infliction of prolonged mental harm as a result of those predicate acts
  • The specific intent to inflict the severe mental suffering from those predicate acts

But even if someone had the specific intent to commit those predicate acts and prolonged mental harm resulted, Yoo included an escape hatch. He basically said that if a person had conducted studies and based on those studies had concluded that prolonged mental harm would not result, then he could claim to have been operating with a good faith belief that those actions did not cause prolonged mental harm.

Specific intent can be negated by a showing of good faith. Thus, 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. If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions undertaken relying on that advice would have be [sic] undertaken in good faith. Due diligence to meet this standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience.

In other words, to “negate” the specific intent to cause prolonged mental harm that constituted torture, you could do a bunch of study and if that study showed no prolonged mental harm had resulted from these actions in the past, you could then claim that you had no idea that those actions might cause prolonged mental harm in the future, and therefore any deliberate actions that ended up causing prolonged mental harm weren’t really torture.

Abracadabra!!!

As I’ll show below, the Bybee Two memo was designed to show that CIA had done that kind of study. (Note, this is not an original observation; I’m fairly certain both Jeff Kaye and William Ockham have made this observation in the past.) But, as I’ll show in a follow-up post, it fails in what it was designed to do.

Read more →

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

/56 Comments/in /by

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.

Read more →

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

/71 Comments/in /by

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.

Read more →

Abu Zubaydah Experienced “Hard” Dislocation After Session 63

/78 Comments/in /by

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.

Government Admits Abu Zubaydah Suffered from Cognitive Impairment

/53 Comments/in /by

Jason Leopold has made the full filing revealing the scope of the government’s claims about Abu Zubaydah here. I’ll be reading through it today, but I wanted to point to one more clear admission that would seem to undermine the claims the government made in justifying his torture.

The government admits that AZ suffered from “cognitive impairment” due to the shrapnel wound he had in his head.

Respondent acknowledged in the factual return that [Zubaydah’s] diaries indicate that he suffered cognitive impairment from a shrapnel injury for a number of years.

Yet in the Bybee Two memo, John Yoo asserted (based on this psychological evaluation) that AZ had no pre-existing mental conditions or problems that might make him unfit for things like waterboarding.

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods. Tbrough reading his diaries and interviewing him, you have found no history of mood disturbance or other psychiatric pathology[,]” “thought disorder[,] … enduring mood or mental health problems.”

Which is probably why, beyond the narrow admission that AZ’s diaries made it very clear he had had a head injury that caused lasting damage, the government doesn’t want to provide any further evidence of mental illness or cognitive impairment.

Further evidence that Petitioner suffered any mental illness or cognitive impairment (Request No. 54) would not be relevant without any indication that one of the specific diary passages relied upon by the Government was actually linked to the mental or cognitive impairment.

Now, there are actually redacted passages in both the Bybee Two memo and AZ’s psychological evaluation that might include admissions of this injury (in the long redacted section on page 17 of the Bybee Memo and at the end of the first paragraph on Emotional/Mental States/Coping Skills in the psychological evaluation). But one way or another, CIA and/or John Yoo found ways to dismiss any concerns about waterboarding a guy with a known significant head injury.

Our Torture Regime Based on Same Kinds of Lies and Bad Intell as the Iraq War

/86 Comments/in /by

The third sentence of the Bybee Two Memo asserts Abu Zubaydah is “one of the highest ranking members of the al Qaeda terrorist organization.”

You have asked for this Office’s views on whether certain proposed conduct would violate the prohibition against torture found at Section 2340A of title 18 of the United States Code. You have asked for this advice in the course of conducting imenogations of Abu Zubaydah. As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization, with which the United States is currently engaged in an intemational armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001.

The next paragraph warns that if any of the facts in the memo provided by CIA “change,” the memo’s advice would not necessarily apply.

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply.

The memo continues to make claims about Abu Zubaydah’s central role in al Qaeda.

According to this assessment, Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden’s senior lieutenant.

[snip]

He also acted as al Qaeda’s coordinator of external contacts and foreign communications. Additionally, he has acted as al Qaeda’s Counterintelligence officer and has been trusted to find spies within the organization. Zubaydah has been involved in every major terrorist operation carried out by al Qaeda. He was a planner for the Millenium plot to attack U.S. and Israeli targets during the Millennium celebrations in Jordan. Two of the central figures in this plot who were arrested have identified Zubaydah as the supporter of their cell and the plot. He also served as a planner for the Paris Embassy plot in 2001. Moreover; he was one of the planners of the September 11 attacks. Prior to his capture, he was engaged in planning future terrorist attacks against U.S. interests.

We’ve long known these assertions to be false. We’ve long known the CIA later admitted these assertions were wrong–as Abu Zubaydah himself revealed when he described his captors apologizing for claiming he was al Qaeda’s Number Three.

They told me sorry we discover that you are not number three, not a partner even not a fighter.

But as Jason Leopold reports, DOJ has now admitted in court documents that the claims it made in the Bybee Two Memo–the claims it used as a foundation for their entire torture program–were false.

The Justice Department has quietly recanted nearly every major claim the Bush administration had made about “high-value” detainee Abu Zubaydah, a Guantanamo prisoner who at one time was said to have planned the 9/11 attacks and was the No. 2 and 3 person in al-Qaeda.

[snip]

For the first time, the government now officially admits that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,” and was neither a “member” of al-Qaeda nor “formally” identified with the terrorist organization.

All the torture that came after (even the DOD program, given details on DOD’s use of the Bybee Memos to craft their own torture program that appear in the OPR Report) ultimately relied on the analysis DOJ made in the Bybee Memos.

And that analysis was based on information that DOJ now admits to be false.

First we had the Curveball fabrications and the Niger forgeries, and now we have this foundational claim to a false al Qaeda Number Three. Our entire torture regime is based on the same kind of lies and bad intelligence as was the Iraq War.

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?