The Waterboarding Authorization the Torturers Used?

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I wanted to fully explain what I think may be the backstory to the LAT’s revelation that the torturers weren’t aware of the limits in the Bybee Two memo. Here’s what the LAT said:

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

A number of you have suggested (correctly, on the merits as presented by LAT) that if the torturers didn’t know what, specifically, was in the OLC memos, then they couldn’t very well think their torture was legal.

But that assumes they don’t have another document that, they may have been led to believe, authorized the torture they did.

On July 24, 2002, OLC verbally authorized a number of torture techniques, not including waterboarding. Around the same time, DOD urgently asked JPRA–the entity that administered SERE–to provide a list of its techniques so it could reverse-engineer interrogation techniques from them. In response, JPRA sent a memo with an attachment that described its techniques. Sort of.

(U) On July 26, 2002, JPRA completed a second memorandum with three attachments to respond to the additional questions from the General Counsel’s office. The memo stated that "JPRA has arguably developed into the DoD’s experts on exploitation and as such, has developed a number of physical pressures to increase the psychological and physical stress on students …"

In the memo, JPRA informed the General Counsel’s office that it had already "assist[ed] in the training of interrogator/exploiters from other governmental agencies charged with OEF exploitation of enemy detainees."190 The memo also stated:

Within JPRA’s evolving curriculum to train interrogators/exploiters many interrogation approaches are taught along with corresponding options for physical pressures to enhance the psychological setting for detainee interrogation. Several of the techniques highlighted (Atch 1) as training tools in JPRA courses, used by other SERE schools, and used historically may be very effective in inducing learned helplessness and ‘breaking’ the OEF detainees’ will to resist."

The first attachment to the July 26,2002 memo was ”Physical Pressures used in Resistance Training and Against American Prisoners and Detainees."192 Read more →

Ramzi bin al-Shibh’s Lawyers Can’t Know about the Torture that Drove Him Crazy

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bmaz and I have both covered the government’s Kafkaesque refusal to give Abu Zubaydah–who reportedly has very serious memory issues–his own diary back, thereby making it impossible for him to catalog just what was done to him by James Mitchell’s torturers.

Well, from a Gitmo judge’s ruling last week, it appears there’s a concerted effort to prevent defense attorneys from learning what happened to their clients while being interrogated. (h/t fatster)

Bin al Shibh, 37, is one of five men charged in a complex death penalty prosecution by military commission currently under review by the Obama administration. He allegedly helped organize the Hamburg, Germany, cell of the Sept. 11, 2001, hijackers before the suicide mission that killed 2,974 people in New York, the Pentagon and Pennsylvania.

But his lawyers say he suffers a "delusional disorder,” and hallucinations in his cell at Guantánamo may leave him neither sane enough to act as his own attorney nor to stand trial. Prison camp doctors treat him with psychotropic drugs.

Army Col. Stephen Henley, the military judge on the case, has scheduled a competency hearing for mid-September.

Meantime, the judge ruled on Aug. 6 that "evidence of specific techniques employed by various governmental agencies to interrogate the accused is . . . not essential to a fair resolution of the incompetence determination hearing in this case.” The Miami Herald obtained a copy of the ruling Monday.

According to the Red Cross, bin al-Shibh was exposed to water dousing, stress positions, food deprivation, and forced shaving. For the entire month of February 2005, he was "restrained on a bed, unable to move … and subjected to cold air conditioning." Of course, that also suggests that his intense interrogation lasted much longer than it did for Abu Zubaydah and Khalid Sheikh Mohammed (per the same Red Cross report), since that means he was subjected to intense treatment more than two years after he was captured.

But we (and more importantly, bin al-Shibh’s lawyers) can’t have the details of that treatment because if they learned why he was mentally unfit to stand trial, then it might make it clear that it was torture. And if it did, then bin al-Shibh wouldn’t be the only one standing trial.

With Justice Sotomayor Sworn In, Back to Torture

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I was putting together notes for my Netroots Nation panel next Saturday on torture accountability and realized it has been over three weeks since reports said Eric Holder would appoint a prosecutor in the next two. But according to the LAT, Holder still intends to appoint a prosecutor–and still intends to sharply circumscribe the investigation.

U.S. Atty. Gen. Eric H. Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects, current and former U.S. government officials said.

A senior Justice Department official said that Holder envisioned an inquiry that would be "narrow" in scope, focusing on "whether people went beyond the techniques that were authorized" in Bush administration memos that liberally interpreted anti-torture laws.

The story reports that some of the potential subjects of investigation are still at CIA–though had been on the verge of retirement.

Bracing for the worst, a small number of CIA officials have put off plans to retire or leave the agency so that they can maintain their access to classified files and be in better position to defend against a Justice investigation.

"Once you’re out, it gets a lot harder," said a retired CIA official who said he had spoken recently with former colleagues.

And it suggests that the contractors will also be investigated.

The inquiry would also likely target private contractors who worked for the CIA during the interrogations.

But perhaps the most interesting revelation is that some of the torturers did not know what was in the John Yoo memo.

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

That’s interesting, first of all, because of the evidence that one of the documents used to develop the Bybee memo–and not the Bybee memo itself–described waterboarding as practiced. Is it possible that that was the only document the torturers read? Is it possible that Yoo wrote the Bybee memo knowingthat the more expansive limits would be followed?

In any case, if it’s true that the torturers didn’t know the limits in the Bybee memo (or at least, that DOJ can’t prove they knew those limits), then it all becomes a management issue again. Read more →

Why Can’t CIA Handle the Same Level of Oversight the Military Gets?

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"We tortured Qahtani," the convening authority for military commissions, Susan Crawford, admitted to Bob Woodward earlier this year. "His treatment met the legal definition of torture."

Though I’m sure it happened, any criticism of Crawford for this admission was muted. I know of no one who claimed that Crawford was causing servicemen and women to be distracted from their core mission of protecting the country. No skies fell, and few claimed they had or would.

But it’s not just Crawford who confessed that the military tortured a Gitmo detainee. Congress, too, has chronicled the ways in which the military tortured detainees. The Senate Armed Services Committee spent eighteen months investigating the way in which the military adapted SERE techniques for use on al Qaeda, Afghan, and Iraqi detainees. Their report describes how techniques approved by Donald Rumsfeld for some circumstances–sleep deprivation and stress positions contributed to homicides in Afghanistan.

In December 2002, two detainees were killed while detained by CITF-180 at Bagram. Though the techniques do not appear to have been included in any written interrogation policy at Bagram, Army investigators concluded that the use of stress positions and sleep deprivation combined with other mistreatment at the hands of Bagram personnel, caused or were direct contributing factors in the two homicides.

It describes how, a month before those homicides, the Special Forces wrote a memo noting their risk in participating in such interrogations.

"we are at risk as we get more ‘creative’ and stray from standard interrogation techniques and procedures taught at DoD and DA schools and detailed in official interrogation manuals."

It describes the CIA’s General Counsel warning DOD that certain units in Iraq were using methods that not even the CIA would use on the same detainees (suggesting the military interrogators were violating the Geneva Conventions in a legal war zone).

CIA General Counsel Scott Muller had called Jim Haynes and told him that the techniques used by military interrogators at the SMU TF facility in Iraq were "more aggressive" than techniques used by CIA to interrogate the same detainees.

It describes the actions those who tortured, those who planned the torture, and those who authorized it.

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Greg Craig in Trouble … But for What?

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I’ve disliked Greg Craig since the time–before Obama was elected–he insulted our intelligence by suggesting Obama had flip-flopped on FISA because FISA (and not the odious Protect America Act) was expiring. It was bad enough that Obama caved on an important issue without his advisor insulting our intelligence as to why.

But I’m worried that Greg Craig’s job as White House Counsel may be in jeopardy for the wrong reasons. 

The WSJ reports that is in jeopardy.

Mr. Craig has come under criticism from inside the administration and in Congress for a perceived failure to manage the political issues that have originated from Mr. Obama’s decision to close Guantanamo, according to officials in the administration and in Congress. This criticism has drawn focus away from president’s priorities, such as health care and energy.

Since when is it the job of the White House Counsel to manage "the political issues" on key national security issues? Isn’t that the job of the political people–men like Rahm Emanuel (whom Greg Craig saved a heap of headache in the way he handled the Blagojevich fallout, though in that, too, he insulted our intelligence) and David Axelrod?

And from there, the description gets even weirder. Apparently, Greg Craig is in trouble because Dick Cheney made a stink after Obama released the torture memos.

Mr. Craig and Attorney General Eric Holder won the fight to release the memorandums, with minimal redactions, but the White House had to move quickly to limit political damage. Former Vice President Dick Cheney sharpened criticism of Mr. Obama during a televised speech that followed Mr. Obama’s own address intended to explain his national-security vision. 

And because polls no longer support closing Gitmo.

Mr. Obama signed executive orders during his first week in office to close the Guantanamo prison, to review the cases of the more than 200 detainees there and to draw up possible changes to detention and interrogation policies.

At the time Mr. Obama enjoyed public support for his Guantanamo plans, polls showed. Six months later that public support has dissipated, polls show.

In other words, WSJ seems to suggest that Craig is in trouble because he supported the right decisions on policies, but the political people in the White House mismanaged implementing those decisions. Taking the correct stand on moral issues only works, after all, if you sustain that stand and refuse to be cowed by Dick Cheney.

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Madni’s Coffin Flight Rendition

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As Andy Worthington indicated in a comment last month, the rights group Reprieve has been working up a report on Guantanamo detainee Mohammed Saad Iqbal Madni and his rendition. Reprieve announced today the formal start of proceedings in the case. From Clive Stafford Smith today in the Guardian:

It pains me, then, to report on the role of the British government in the case of Saad Iqbal Madni, whose legal case Reprieve begins today. Madni was seized in Jakarta on 11 January 2002, and badly beaten. The Americans put him in a coffin, and flew him to Egypt, apparently stopping off in the British colony of Diego Garcia en route. When Madni arrived in Cairo, he was still bleeding through his nose and mouth from his earlier abuse, yet this was soon relegated to a minor complaint. At the behest of the Americans, he spent 92 days being tortured with electric cattle prods, before being rendered to Afghanistan and ultimately to Guantánamo Bay.

From a separate article in the Guardian today:

The government is refusing to provide details of the torture and wrongful detention of a man rendered through British territory, it was claimed today, depriving him of a remedy for "serious civil and criminal wrongdoing".

Mohammed Madni, who was arrested in Jakarta, Indonesia in 2002, is thought to be one of the two men the foreign secretary, David Miliband, admitted last year were rendered through the British Indian Ocean island Diego Garcia.

Milliband was forced to admit that the rendition, by the US, had used British territory, but has resisted calls that the identity of the men should be revealed and an apology issued.

Read the articles for the full bone chilling details of this, yet another heinously wrongful detention, rendition and torture of an apparently innocent man by the United States government. The long and short is the US snagged Madni, beat him up, put him in a coffin on a flight to be tortured by our Egyptian partners for at least 92 some odd days and then shuttled to Gitmo to be warehoused in misery for six years. All before releasing him with the attitude of "no harm, no foul".

But President Barack Obama and Attorney General Eric Holder want to investigate a few grunts that may have exceeded the torture regime guidelines without looking critically at the Executive Branch officials that created and propagated the outrageous and inhuman torture Read more →

The Yoo Tumor

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John Yoo is a cancer on the Constitutional body politic of the United States, and he won’t go away. For some inexplicable reason, Carrie Johnson, and her editors at the Washington Post, have decided to fluff the one man self rationalization and obfuscation tour Yoo has been on as of late:

Some public figures, if their judgment and ethics come under fire, retreat into solitude. Then there is John C. Yoo.

The former Justice Department official, whose memos blessed the waterboarding of terrorism suspects and wiretapping of American citizens, has come out fighting, even as negative assessments of his government service pile up.

Last month, a federal judge in California refused to dismiss a lawsuit that accuses Yoo of violating a detainee’s constitutional rights. This month, the Justice Department’s inspector general described Yoo’s legal analysis of the Bush surveillance program as "insufficient" and sometimes inaccurate. Also expected in coming weeks is a department ethics report that sources have said could renounce Yoo’s approval of harsh CIA interrogation practices and recommend that he and Jay S. Bybee, a former colleague, be referred to their state bar associations for discipline.

While former colleagues have avoided attention in the face of such scrutiny, Yoo has been traveling across the country to give speeches and counter critics who dispute his bold view of the president’s authority. Now a law professor at the University of California at Berkeley, he engages in polite but firm exchanges with legal scholars over conclusions in their academic work. This month, he wrote an opinion piece in the Wall Street Journal defending his actions and labeling critics’ arguments as "absurd" and "foolhardy" responses to "the media-stoked politics of recrimination."

There is nothing whatsoever new in the story, save perhaps for the information that even if the long delayed OPR Report recommends bar discipline against Yoo, he is unlikely to suffer any consequences because the only state he is licensed in, Pennsylvania, has a five year statute of limitations on ethics infractions. Johnson and the Post, of course, do not discuss whether the Pennsylvania statute may have been tolled because the information was not publicly available for a good deal of the time.

The Post article is beyond disingenuous with the way it blithely equates the pros and cons of Yoo and his work. It even points out the recent decision in Federal court in NDCA by Judge Jeffrey White without noting in any detail that Read more →

ACLU Torture Tape Working Thread

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New filings by the ACLU. Dissect and discuss.

Here

and

Here.

CIA: A Different Kind of Derivative Trading

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This is going to be one of my really weedy posts, but if it’s any consolation, I went crazy while weeding (in the garden) yesterday and accidentally pulled up a huge tomatillo plant that was just about to bear tons of tomatillos. So I’m suffering from having gotten myself lost in the weeds right now.

Back in June, I did a close review of which documents from its index the CIA had described for ACLU in its Vaughn Index (Part One, Part Two) of documents pertaining to events described in the torture tapes. It appeared that the CIA had included fewer documents from May–the period when CIA was fighting with FBI over control of Abu Zubaydah’s interrogation–than it did from later in its document series.

By comparing the total index with the Vaughn index, though, we can get a sense of what the CIA did include. For most of the series of cables reporting to and from the field, the CIA submitted fairly regular cables–every 10, 11, or 12 cables. From June 22, 2002 through August 20, 2002, they appear to have submitted every 10 document, like clockwork (in addition to the handwritten log dated August 4). (It’s impossible to exactly identify a pattern from after that because so many of the cables are the same length, though it is possible that it sticks pretty close to the every tenth cable pattern.)

But things in April–when the FBI and CIA were fighting over control of the interrogation and Abu Zubaydah was reportedly cooperating with the FBI–and May–when the small box was introduced at least two months before OLC approved its use–things are a bit more irregular. In April, for example, the CIA submitted documents 1, 12, 1922, 32, 42 or 43, and 53 (plus the handwritten log, which was document 3); that gives you gaps of 11, 7, 13, 10, 10, 10, 10, and 10 documents (not including the log in the series). In May, CIA submitted documents 64, 65, or 66, 77 or 78, 89 or 90, document 99, 110, 123, 134, 146, document 155 or 156, ad 165; while it’s harder to pin down the gaps, there is necessarily one 13-document gap early in the month, a 9-document gap between May 8 and 11,  another 13-document gap between May 14 and 17, a 12-document gap between May 20 and 24, and one 9-document gap between May 24 and 30. 

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The Changing Story on Past Torture Investigations

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Two months ago, when the torture apologists looked like they were succeeding in preventing a torture investigation, they claimed to a credulous Jeffrey Smith that the CIA IG Report "did not provoke a specific CIA "referral" to the department suggesting an investigation of potential criminal liability, and no such investigation was undertaken at the time." Of course, that claim conflicted with the CIA IG’s own admission that documents show a total of five criminal referrals made over the course of the investigation.

Well, now that it looks more likely that Eric Holder will launch an investigation, the CIA claims that DOJ investigated 20 criminal referrals. 

"This has all been reviewed and dealt with before," says Paul Gimigliano, a CIA spokesman.

After the IG report reached Justice, a task force was set up in the U.S. Attorney’s Office in Alexandria, Va., that reviewed about 20 criminal referrals of detainee abuse sent over by the CIA and military criminal investigators. Officials familiar with the referrals have said they were horrific: one involves allegations that a naked prisoner in CIA custody in Afghanistan froze to death after being left in a prison known as the "salt pit."

But task-force prosecutors say they ran into a host of problems, including a lack of witnesses and forensic evidence, and declined to prosecute in all but one case. "We wanted to make these cases, but they just weren’t there," says Rob Spencer, the former career Justice prosecutor who headed the task force until 2006. Ken Melson, who oversaw Spencer’s work and was appointed by Holder as acting Alcohol, Tobacco, Firearms and Explosives director, says the cases were "looked at aggressively" and without political pressure. "I think we made the right decision on these cases," he says.

Of course, all three claims are likely true: CIA made no "specific referrals" … "when the report was finished," but did make five referrals over the course of the investigation. And, once it took a look at the report (and probably once it looked at a bunch of military referrals), DOJ reviewed 20 cases. It’s funny, though, how zero can become five can become twenty as the need for different spin arises.

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