In April 2003, after Waterboarding Him 183 Times, the CIA Admitted KSM Was Lying to Them

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In March 2003, the CIA subjected Khalid Sheikh Mohammed to the most brutal of its torture techniques. Over the course of that month, we know, the CIA waterboarded Khalid Shaikh Mohammed 183 times.

Then, three days into April, the CIA wrote an analytical report admitting that KSM lied during those interrogations. 

A footnote in the 9/11 Report provides some detail on this analytical report (footnote 4 in Chapter 7).

In an assessment of KSM’s reporting, the CIA concluded that protecting operatives in the United States appeared to be a "major part" of KSM’s resistance efforts. For example, in response to questions about U.S. zip codes found in his notebooks, KSM provided the less than satisfactory explanation that he was planning to use the zip code to open new email accounts. CIA report, Intelligence Community Terrorist Threat Assessment, "Khalid Shaykh Muhammed’s Threat Reporting–Precious Truths, Surrounded by a Bodyguard of Lies," April 3, 2003, pp 4-5.[my emphasis]

Admittedly, CIA was bemoaning the perceived lies KSM was telling to protect operatives the Agency assumed he had planted around the United States (the footnote serves to explain why the 9/11 Commission did not believe KSM’s claims that there were no al Qaeda operatives in Southern California to assist two of the hijackers). At least from this description, we don’t know whether the Agency also admitted that KSM was lying about knowing where Osama bin Laden was–as was declassified the other day. But we do know that CIA acknowledged he was lying about precisely the subject–threat reporting–that the torture apologists claim waterboarding was so successful in eliciting.

I present this not as proof that KSM was lying about who al Qaeda had stationed in the US. Rather, it is a document written contemporaneously with the torture. And it shows what role torture-induced knowledge played for the CIA. Where KSM didn’t confirm CIA’s preconceptions, they assumed he was lying. Where he gave them stories of scary attacks, they wasted resources tracking them down. But, partly because they were torturing him, they had no easy way to sort through the crap to find any real intelligence.

There are a number of outlets that believe KSM’s admissions of lying at his CSRT are the big takeaway, even though equally damning admissions in the CSRTs have long been unclassified and KSM’s CSRT already had unclassified claims of lying.

But why take KSM’s word for it? Read more →

CIA Now Reviewing OPR Report on Yoo, Bybee, and Bradbury

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Sheldon Whitehouse revealed raised during today’s Department of Justice oversight hearing that the CIA is now reviewing the results of the Office of Professional Responsibility report on John Yoo, Jay Bybee, and Steven Bradbury’s role in authorizing torture.

Whitehouse: CIA was given a opportunity for substantive comment and classification review. Is it now the CIA that is holding up the release of the report?

Eric Holder claimed that the CIA’s review was not holding up the report. But when asked whether or not DOJ was ensuring that those at CIA reviewing the document had clean hands on torture, Holder twice did not answer, and ultimately said he wasn’t worried whether those involved in torture get to make substantive comment on the OPR report.

Whitehouse: Role of CIA in substantive comment and in classification review, interesting conflicts of interest. What assurances from CIA that those who seek to influence OPR report through substantive comment or those who have effect of delaying report are not complicit or involved in underlying conduct. Have you got a clean scrub of those at CIA who are involved in program?

Holder: As complete a report as we can. Declassify as much as we can. Full feeling of what it is that OLC lawyers dealt with. Pushing to declassify as much as we can. 

Whitehouse: Doesnt’ address question of whatever assurances from CIA that in discharge of review role the people involved in that had clean hands WRT this program and are giving untainted advice.

Holder: We haven’t gotten anything yet. This may not be an issue at all.  Will interact with Panetta. Want to have as much declassified as possible.

Whitehouse: And on question of substantive comments? Is it not important that CIA should be doing so in manner that keeps agencies hands clean.

Holder: I’m actually less worried about substantive comments.

Whitehouse: Would they be likely to look at substantive comments differently if CIA had not kept report from people with clean hands.

Holder: Fact-driven. Conclusion that one draws from the facts, Justice Department’s view of facts that we have uncovered.

In other words, no, Holder doesn’t find it problematic that someone like John Rizzo–who remains the Acting General Counsel at CIA and who made apparently false declarations to OLC in 2002 when it first approved torture–gets a chance to review the OPR report.

Read more →

Tenet: “No Papers, No Opinions, No Program”

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The WaPo has a very detailed story out about the 2004 IG Report. Most interesting, to me, is the suggestion that Tenet’s resignation on June 3, 2004 came amidst his refusal to continue the torture program without written authorization from the White House.

After the report was issued, then-CIA director George J. Tenet demanded that the Justice Department and the White House reaffirm their support for the agency’s harsh interrogation methods, even when used in combination, telling others at the time that "no papers, no opinions, no program." At a White House meeting in mid-2004, he resisted pressures to reinstate the program immediately, before receiving new legal authorization, according to a source familiar with the episode.

The Justice Department subsequently sent interim supporting opinions to the CIA, allowing its resumption after Tenet’s departure, and went on to complete three lengthy reports in 2005 that affirmed in detail the legality of the interrogation techniques with some new safeguards that the CIA had begun to implement in 2003.

And the story also explains–to a degree–why we got the three opinions we got in May 2005. The judgment of the report that the program was "degrading" was tied to the nudity involved.

The report also expressed particular concern that questioners had violated a legal prohibition against "degrading" conduct by stripping detainees, sometimes in the presence of women, according to a source who has read it.

Which partly explains why the Techniques memo includes nudity–after the CIA had used it for three years. 

And the story ties the Combined memo to the combination of stress positions and sleep deprivation–which we know had already been found to be the cause of death in some detainees.  

The report further questioned the legality of using different combinations of techniques — for example, sleep deprivation combined with forced nudity and painful stress positions, according to sources familiar with the document. While Justice Department lawyers had determined in August 2002 that the individual techniques did not constitute torture, the report warned that using several techniques at once could have a far greater psychological impact, according to officials familiar with the document.

"The argument was that combining the techniques amounted to torture," said a former agency official who read the report. "In essence, [Helgerson] was arguing in 2004 that there were clear violations of international laws and domestic laws."

What was it Jonathan Fredman had said–if the detainee dies it’s torture? Read more →

Al-Nashiri’s Swollen Nerves, the CIA’s Apology to Abu Zubaydah

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As MadDog pointed out, the latest redactions of the CSRT transcripts are up at ACLU.

Transcript of Khalid Sheikh Muhammad’s CSRT (27 page PDF).

Transcript of Al Nashiri’s CSRT (39 page PDF).

Transcript of Abu Zubaydah’s CSRT (30 page PDF)

Transcript of Majid Khan’s CSRT (50 page PDF)

I say "latest redactions" because they really haven’t declassified that much–just single lines here and there.

The biggest piece of news, IMO, is Rahim al-Nashiri’s description of his swollen nerves.

Before I was arrested I used to be able to run about ten kilometers. Now, I cannot walk for more than ten minutes. My nerves are now swollen in my body. Swollen too.

We’ve been trying to understand why they only waterboarded al-Nashiri twice–and don’t claim it worked with him. These swollen nerves may be a clue. They don’t t rule out that he suffered other problems–such as a tracheotomy pursuant to some accident during waterboarding–but it does explain one effect his torture had on him.

Otherwise, the biggest news is that our government is now willing to admit they have admitted to being totally wrong about who Abu Zubaydah was.

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

Golly. If only they had read his diary or asked Noor al-Deen, they could have figured that out without waterboarding him 83 times.

If nothing else, though, the re-release of these may get more people to read them. They are fascinating and nauseating narratives, all four of them, so if you haven’t already read one or more of them, please take a look.

[Updated and changed time stamp]

Hassan Ghul Timeline

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The known dates pertaining to Hassan Ghul’s capture and subsequent OLC memos authorizing his torture. The interesting things about this timeline are:

  • The Abu Ghraib scandal and IG Report come after they’ve detained Ghul but before they start torturing him in earnest
  • The claims to what Ghul knew changed over time
  • The approvals for his torture take place after Tenet is gone but before Goss arrives
  • Between the Cheney briefing of the Gang of Four, the CIA lie to HPSCI about torture, and Rockefeller’s requests for CIA IG materials, BushCo really was under pressure from Congress
  • Two documents to prove efficacy were created during the drafting of the Bradbury memos–but they don’t appear to claim Ghul’s torture was useful

March 16, 2003: Detainee testifies that Ghul took intended 9/11 participant, Mushabib al Hamlan, to Abu Zubaydah guest house in March 2000

January 19, 2004: General Sanchez requests investigation of Abu Ghraib abuse

January 22 or 23, 2004: Hassan Ghul detained by Kurds

January 31, 2004: Taguba appointed to conduct investigation

February 2 to 29, 2004: Taguba’s team investigating in Iraq

February 21, 2004: Directorate of Intelligence document, "US Efforts Grinding Down al-Qa’ida," says Ghul was captured while on a mission "to establish contact" with Zarqawi

February 24, 2004: Tenet mentions Ghul–along with top al Qaeda members–in hearing before SSCI

March 9, 2004: Taguba submits report

March 12, 2004: Letter to Goldsmith (possibly in support of GC opinion) claims Ghul "perform[ed] critical facilitation and finance activities for al-Qa’ida," including "transporting people, funds, and documents," and says CIA suspected Ghul of playing an active part in planning attacks against United States forces 

March 18, 2004: Jack Goldsmith concludes non-Iraqi members of al-Qaeda not "protected persons" under Geneva Convention

March 19, 2004: Jack Goldsmith drafts memo finding that US can remove some people of Iraq

April 28, 2004: Hamdi and Padilla argued before SCOTUS; Paul Clement assures the Court that we don’t torture; 60 Minutes breaks Abu Ghraib story and proves he’s wrong

May 7, 2004: CIA IG report finds torture program cruel and inhuman

June 3, 2004: Tenet announces resignation–seeks explicit approval of torture

June 15, 2004:Goldsmith informs Ashcroft he will withdraw Bybee Memo and resigns

June 17, 2004:Jack Goldsmith announces his resignation.

July 2004: Scott Muller resigns as General Counsel of CIA

July 11, 2004: Tenet resignation effective

July 20, 2004: CIA requests new legal advice from OLC (13 page letter)

July 22, 2004: Ashcroft confirms to Acting DCI (McLaughlin?) that all techniques except waterboarding legal under CAT

July 23, 2004: Muhammad Naeem Noor Khan arrested by Pakistani authorities

July 25, 2004: Capture of Ahmed Khalifan Ghailani

July 26, 2004: DNC begins

July 30, 2004: Letter to Daniel Levin including description of torture techniques

August 1, 2004: Government raises threat level, announces surveillance of financial institutions, though reports are years old; NYT publishes Khan’s name

August 2, 2004: Letter from John Rizzo to Levin, including details on when the CIA would use waterboarding and a medical and psychological assessment of Ghul

August 6, 2004: Daniel Levin advises that subject to reservations, CIA’s use of waterboarding not illegal

August 19, 2004: Letter to Daniel Levin detailing new limits on waterboarding

Read more →

Is Detainee 2 Abu Faraj al-Libbi?

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I noticed something about as I’ve been working on some more Hassan Ghul posts. Abu Faraj al-Libbi–whom the ICRC refers to by his real name, Mustafah Faraj al-Azibi–was captured on May 2, 2005. Al-Libbi was (more credibly than usually) alleged to be al Qaeda’s then-number 3 when he was captured. This makes it possible he was the detainee mentioned obliquely and whose name is still redacted in the May 30, 2005 CAT memo (indeed, the name Abu Faraj al-Libbi would be a near fit for the redaction). It’s conceivable, after all, that al-Libbi would not need that much of a discussion in May 2005, and it would make sense to treat al-Libbi among the discussion of Ghul and–especially–KSM and Abu Zubaydah.

Now, this is all just an observation on the timing, one possibility. But if al-Libbi is the second detainee mentioned in the CAT memo, then he can’t be the detainee at question in the May 10, 2005 Combined memo–drafts of the Combined memo far predated the capture of al-Libbi (as did Jim Comey’s discussion of the individual detainee whom Combined really was about), even assuming some deception about his capture date.  

Also, we know that al-Libbi wasn’t waterboarded. He was interviewed for the ICRC report (which counted only three detainees having been waterboarded), though if he described his treatment to them, he asked them not to use his name. Interestingly, though, one of the detainees who was water doused was threatened–to the point of being loaded onto the waterboard table–with waterboarding.

In three cases cold water was also poured over the detainee while he was lying on a plastic sheet raised at the edges by guards to contain the water around his body creating an immersion bath with just the head exposed. In one case a detainee was strapped to a tilting bed and cold water was poured over his body while he was threatened with “water boarding” (although that procedure was not actually carried out on that individual).

We obviously don’t know one way or another. But the possibility that al-Libbi was the second detainee mentioned in the May 30 memo has me rethinking my wildarsed guess that the Combined Memo was written to make it possible to waterboard Detainee 2.

Hassan Ghul and Goldsmith’s Exception to the Geneva Convention’s Protected Person Rule

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According to the May 30, 2005 CAT memo, the CIA wrote Jack Goldsmith with what appears to be a description of Hassan Ghul on March 12, 2004.

Intelligence indicated that prior to his capture, [redacted] "perform[ed] critical facilitation and finance activities for al-Qa’ida," including "transporting people, funds, and documents." Fax for Jack L. Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [redacted], Assistant General Counsel, Central Intelligence Agency (March 12, 2004).

On March 18, 2004, Goldsmith finalized a memo finding that non-Iraqi members of al Qaeda need not be afforded protected status under the Geneva Convention.

We conclude that the following persons, if captured in occupied Iraq, are not “protected persons” within the meaning of GC article 4: U.S. nationals, nationals of a State not bound by the Convention, nationals of a co-belligerent State, and operatives of the al Qaeda terrorist organization who are not Iraqi nationals or permanent residents of Iraq.

The following day, Goldsmith drafted–but did not finalize–a memo finding that in some cases the US–as the occupying power–could transfer "protected persons" out of Iraq (but probably shouldn’t).

We conclude, accordingly, that article 49(1)’s prohibition on "forcible transfers," like its prohibition on "deportations," does not extend to the removal, pursuant to local immigration law, of "protected persons" who are illegal alients.

[snip]

…we conclude that it is permissible to relocate "protected persons" who have not been accused of an offense from Iraq to another country, for a brief but not indefinite period, for purposes of interrogation.14

[snip]

14. While we conclude that GC does not prohibit temporary relocations of "protected persons" from occupied territory for a brief but not indefinite period, neither technical usage nor the Convention provides clear or precise guidance regarding exactly how long a "protected person" may be held outside occupied territory without running afoul of Article 49. Furthermore, violations of Article 49 may constitute "[g]rave breaches" of the Convention, art. 147, and thus "war crimes" under federal criminal law.

Now, we cannot be sure of the connection–nor can we be completely certain that the reference in the CAT memo pertains to Ghul (though it accords with the known details about him), but it appears these memos were at least partly an exercise in figuring out a way remove Ghul from Iraq to what ended up being one of CIA’s black sites. 

The detail is important for two reasons. Read more →

Court Allows Padilla Suit Against Yoo To Proceed

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There was a significant new opinion released in the NDCA late Friday (h/t Lindy and Fatster) in the case of Jose Padilla v. John Yoo. The decision is devastating to Yoo and to the thought by the Obama Administration that the American legal system is going to blithely allow them to simply "move forward" and leave behind, and out of sight, the malevolence, malfeasance and depravity of senior Bush/Cheney legal officials in relation to their torture regime.

Yoo might be having a bad day when a Federal judge starts his analysis of your immunity claim by citing Alexander Hamilton from the Federalist Papers. And that is exactly what Judge Jeffrey S. White of NDCA District Court has done:

[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. [The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).]

First, a little background is in order. The plaintiff is Jose Padilla, an American citizen arrested with great fanfare on May 8, 2002, on a material witness warrant, by the Bush Administration as being a "dirty bomb" suspect. As the "material witness" warrant was a sham, Bush (through Rumsfeld) quickly designated Padilla an "enemy combatant" and placed him in the custody of the Department of Defense, the military, and locked him up indefinitely in the US Naval brig in Charleston, South Carolina. Padilla was detained without being charged, was subjected to extreme isolation, including isolation from both counsel and from his family, and was interrogated under threat of torture, deportation and even death. He was placed in solitary confinement in a tiny cell in an otherwise empty wing of the military brig. Padilla alleges that he was “subjected to a systematic program of unlawful interrogation methods and conditions of confinement, which proximately and foreseeably caused him to suffer extreme isolation, sensory deprivation, severe physical pain, sleep deprivation, and profound disruption of his senses.

The defendant is the notorious John Yoo, Bush torture lawyer extraordinaire. Yoo, of course, is currently a law professor at the University of California Berkeley and was, at the times material to the complaint, Deputy Attorney General in the Office of Legal Counsel for the Bush/Cheney Administration. Padilla states, Read more →

From the Blogger’s Basement on Jane Mayer

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Since Spencer asked, I read Jane Mayer’s piece this morning while sitting at my kitchen table eating mr. ew’s "best in the world" sourdough pancakes (from our homegrown sourdough), syrup from my syrup guy out in Mason, my butcher Bob’s amazing breakfast links, and locally roasted Ethiopian Yirgacheffe coffee. Though I admittedly read it while still wearing the t-shirt I had slept in.

Aside from the bloggers-on-cheetos slur, there were some interesting bits in the story. Mayer catalogs the changing fortunes of Mitchell and Jessen’s torture boondoggle.

In April, Panetta fired all the C.I.A.’s contract interrogators, including the former military psychologists who appear to have designed the most brutal interrogation techniques: James Mitchell and Bruce Jessen. The two men, who ran a consulting company, Mitchell, Jessen & Associates, had recommended that interrogators apply to detainees theories of “learned helplessness” that were based on experiments with abused dogs. The firm’s principals reportedly billed the agency a thousand dollars a day for their services. “We saved some money in the deal, too!” Panetta said. (Remarkably, a month after Obama took office the C.I.A. had signed a fresh contract with the firm.)

According to ProPublica, the investigative reporting group, Mitchell and Jessen’s firm, which in 2007 had a hundred and twenty people on its staff, recently closed its offices, in Spokane, Washington. One employee was Deuce Martinez, a former C.I.A. interrogator in the black-site program; Joseph Matarazzo, a former president of the American Psychological Association, was on the company’s board. (According to Kirk Hubbard, the former head of the C.I.A.’s research and analysis division, Matarazzo served on an agency professional-standards board during the time the interrogation program was set up, but was not consulted about the interrogations.)

I’ll note that April was the same month that the ICRC Report, SASC Report, and Ali Soufan’s first public statements came out (all of which specifically implicated the contractors). It’s amazing how quickly a little sunshine can make outsourcing torture unsustainable.

Mayer also notes something I’ve been sensing too–that John Durham’s investigation into the torture tape destruction may well have to investigate the reasons why the CIA had to destroy the tapes, most notably all the torture they did before OLC had authorized it.

A prosecutor appointed by the Justice Department, John Durham, has convened a grand jury in Washington to weigh potential criminal charges against C.I.A. officers who were involved in the destruction of ninety-two videotapes documenting the interrogations of Abu Zubaydah and other detainees. Read more →

Hassan Ghul, Mystery Detainee 2, and the Three Bradbury Memos

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Update, March 12, 2015: We know from the Senate Torture Report that the Techniques memo was about Janat Gul, not Hassan Ghul. 

Since the Comey emails have come out, I’ve been trying to puzzle through why the Bush Administration issued three memos in May 2005–Techniques, Combined, and CAT–rather than just one or two. I guess I sort of understand doing a separate memo on whether the torture program complies with the Convention Against Torture, since that was largely written to placate Congress and ought to have (but did not) involve a more sensitive analysis. But since all the techniques are used in combination, why not join the analysis of Techniques and Combined?

This is to an extent a wildarsed guess. But I think they did three memos to hide the analysis and authorization of a particular detainee’s treatment. And I think that detainee was waterboarded.

Two Detainees

It has long been established that Hassan Ghul is discussed in these memos. Dafna Linzer reported on it the day the memos came out (and someone here MadDog also noted it about the same time–gold star to MadDog!!).

But the May 30 CAT memo actually mentions two detainees.

We understand that two individuals, [redacted across two pages] are representative of the high value detainees on whom enhanced techniques have been, or might be, used.

I’ll come back to this passage, but for the moment, understand that by the end of May 2005, Bradbury was ready to at least name two detainees in his memo.

The “Techniques” Memo Is about Ghul

I’m not 100% certain, but I believe that the May 10 Techniques memo is–at least ostensibly–exclusively about Ghul. The title of the memo uses the singular–Detainee. And the memo describes the detainee by name (the name is redacted, but it appears to be an appropriate length to spell “Hassan Gul”–CIA spelled “Ghul” without an “h”).

You asked for our advice concerning these interrogation techniques in connection with their use on a specific high value al Qaeda detainee named [redacted]. You informed us that the [redacted] and information about al Qaeda’s plans to launch an attack within the United Staes. According to [redacted] had extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and had arranged meetings between an associate and [redacted] to discuss such an attack. August 25 [redacted] Letter at 2-3. You advised us that medical and psychological assessments [redacted] were completed by a CIA physician and psychologist, and that based on this examination, the physician concluded “[redacted] medical stable and has not medical contraindications to interrogation, including the use of interrogation techniques” addressed in this memorandum.

So by all appearances, the Techniques memo uses the interrogation of Ghul to reapprove all the techniques used by the CIA, thereby replacing Bybee Two.

Read more →