The CIA IG Report and the Bradbury Memos

In May 2004, CIA’s Inspector General, John Helgerson, completed a report that found that the CIA’s interrogation program violated the Convention Against Torture. By understanding the role of that report in the May 2005 Bradbury memos, we see just how weak Bradbury’s memos are. 

As Jane Mayer described, the report strongly influenced Jack Goldsmith shortly before he withdrew the August 1, 2002 Bybee memo in June 2004.

The 2004 Inspector General’s report, known as a "special review," was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply "sickening." The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized. The source said, "You couldn’t read the documents without wondering, "Why didn’t someone say, ‘Stop!’"

Goldsmith was required to review the report in order to settle a sharp dispute that its findings had provoked between the Inspector General, Helgerson, who was not a lawyer, and the CIA’s General Counsel, Scott Muller, who was. After spending months investigating the Agency’s interrogation practices, the special review had concluded that the CIA’s techniques constituted cruel, inhuman, and degrading treatment, in violation of the international Convention Against Torture. But Muller insisted that every single action taken by the CIA toward its detainees had been declared legal by John Yoo. With Yoo gone, it fell to Goldsmith to figure out exactly what the OLC had given the CIA a green light to do and what, in fact, the CIA had done.

As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show. Goldsmith declined to be interviewed about the classified report for legal reasons, but according to those who dealt with him, the report caused him to question the whole program. The CIA interrogations seemed very different when described by participants than they had when approved on a simple menu of options. Goldsmith had been comfortable with the military’s approach, but he wasn’t at all sure whether the CIA’s tactics were legal. Waterboarding, in particular, sounded quick and relatively harmless in theory. But according to someone familiar with the report, the way it had been actually used was "horrible."

After Goldsmith withdrew the Bybee memoranda, Dan Levin wrote a new more restrictive memo in December 2004. But by spring 2005, the CIA wanted to use torture with some more high value detainees (including Hassan Ghul). So they had Steven Bradbury (in what was basically an audition to head OLC) write new torture memos–not only to reauthorize waterboarding (though it was not used on Ghul, according to reports), but also to dismiss all the concerns about the CAT raised by CIA’s IG.

Though we are not allowed to read that in the memos, the response to the IG Report appears to have been at least implicitly acknowledged in both. The two May 10, 2005 memos were were faxed with a two page cover sheet, and the first memo refers to the IG Report as if it has already been cited, so it may have been mentioned in the cover sheet or in earlier correspondence on the memo. [Correction: Footnote 7 cites the IG Report directly.] And the May 30 memo includes at least one long redacted passage (on page 4) that may contextualize the entire memo in reference to the IG Report’s conclusion that the CIA’s interrogation program violated the CAT. (The passage in question appears to refer to descriptions of the interrogation program, which the IG Report did in detail; yet, as Mary notes, Bradbury does not use the actual descriptions from the IG report when he describes and declares legal the techniques. This allows him to ignore several inconvenient facts revealed in the IG Report.)

More importantly, the entire point of both memos is basically to respond to the IG Report’s conclusion that CIA’s interrogation program violated CAT. The May 10 memo, for example, explains that the US complies with the CAT with USC 2340-2340A, and then proceeds to argue that the techniques used do not violate USC 2340-2340A, therefore those techniques do not violate the CAT. The May 30 memo basically uses a technicality–that none of the torture is conducted on US soil and therefore none of it is subject to Article 16. It goes on, then, to redefine the requirements of CAT to prohibit anything that "shocks the conscience." By making a thoroughly unconvincing claim that none of the techniques shock the conscience, Bradbury then claims that even if they were seen to be subject to Article 16, they would still comply. In both cases, however, the purpose is the same: to insist that–contrary to what the IG Report concluded–the CIA interrogation program did comply with the CAT. 

Yet in arguing against the IG Report, Bradbury reveals much of what the IG Report finds so problematic. It reveals:

  • CIA interrogators were not performing waterboarding as it had been approved in the August 2002 Bybee Memo; in particular, they were repeating the process more frequently (83 times for AZ and 183 for KSM) and using much more water than described in the Bybee Memo
  • By CIA’s own admission, they used waterboarding with Abu Zubaydah at a time when he was already completely compliant with interrogators
  • No "objective" doctors had been involved in the interrogation sessions (the CIA subsequently added them to its program)
  • It appears that after the CIA integrated doctors into the program, they lowered, by three and a half days, the length of time a detainee could be kept awake

In other words, the Bradbury memos basically prove that waterboarding, as practiced by the CIA (as distinct from how they were describing it), was out of control in several ways (and therefore probably illegal even according to Yoo’s descriptions). They also suggest that the CIA recognized they were using sleep deprivation far more than was safe, even according to their own complicit doctors. Both of the most problematic aspect of the CIA program, the Bradbury memos suggest, had been deemed unsafe as practiced.

Yet even while presenting this proof, Bradbury concludes that the interrogation programs were legal. More troubling even than Bradbury’s crappy legal writing, then, is the way his own memos prove the program was unsafe even while declaring it legal. 

Here’s a summary of what appears in each of the two memos (I didn’t find any obvious references to the IG Report in the second May 10, 2005 memo).

References in the May 10 "Techniques" memo 

Two references to the participation of doctors and psychologists in interrogations (5)

"Medical and, as appropriate, psychological personnel shall be physically present at, or reasonably available to, each Detention Facility. Medical personnel shall check the physical condition of each detainee at intervals appropriate to the circumstances and shall keep appropriate records."

Medical and psychological personnel are on-scene throughout (and, as detailed below, physically present or otherwise observing during the application of many techniques, including all techniques involving physical contact with detainees) and "[d]aily physical and psychological evaluations are continued through the period of [enhanced interrogation technique] use. [brackets Bradbury’s]

A reference to the application of SERE techniques to torture (6)

A footnoted description of how waterboarding as used in torture differs from the way it is used in SERE training (13)

A footnote admitting that the IG report criticized the reference to SERE training as a basis for justifying waterboarding, given the differences between the way it was used (13)

A reference to an IG complaint that medical personnel were not involved in the interrogations (29)

We note that this involvement of medical personnel in designing safeguards for, and in monitoring implementation of, the procedures is a significant difference from earlier uses of the techniques catalogued in the Inspector General’s Report. See IG Report at 21 n26 ("OMS was neither consulted nor involved in the analysis of the risk and benefits of [enhanced interrogation techniques], nor provided with the OTS report cited in the OLC opinion [the Interrogation Memorandum]."). Since that time, based on comments from OMS, additional constraints have been imposed on the use of the techniques.

A footnote describing the IG report’s description of sleep deprivation (35)

The IG Report described the maximum allowable period of sleep deprivation at that time as 264 hours or 11 days. See IG Report at 15. You have informed us that you have since established a limit of 180 hours, that in fact no detainee has been subjected to more than 180 hours of sleep deprivation, and that sleep deprivation will rarely exceed 120 hours. To date, only three detainees have been subjected to sleep deprivation for more than 96 hours.

A long footnote describing the difference between how Yoo/Bybee described waterboarding (and how it was used in SERE) and how it was implemented in practice (41)

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is "for real–and is more poignant and convincing.") see also id. at 14 n14. The Inspector General further reported that "OMS contends that the expertise of the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe." Id at 21 n26. We have carefully considered the IG Report and discussed it with OMS personnel. As noted, OMS input has resulted in a number of changes in the application of the waterboard, including limits on frequency and cumulative use of the technique. Moreover, OMS personnel are carefully instructed in monitoring this technique and are personally present whenever it is used. See OMS Guidelines at 17-20. Indeed, although physician assistants can be present when other enhanced techniques are applied, "use of the waterboard requires the presence of the physician." Id. at 9n2.

Another long footnote discussing why SERE has discontinued the use of waterboarding in all except Navy SERE training. (42)

References in the May 30 memo

A reference to Abu Zubaydah’s seniority in Al Qaeda upon capture (6)

A discussion of the use of waterboarding with (at least) al-Nashiri. (8)

The CIA used the waterboard extensively in the interrogations of KSM and Zubaydah, but did so only after it became clear that standard interrogation techniques were not working. Interrogators used enhanced techniques in the interrogation of al-Nashiri with notable results as early as the first day. See IG Report at 35-36. Twelve days into the interrogation, the CIA subjected al-Nashiri to one session of the waterboard during which water was applied two times. See id. at 36. (Note this section immediately precedes the discussion of videotapes.)

Use of the IG report to support a claim that torture provides information; "describing increase in intelligence reports attributable to use of enhanced techniques" (9)

A paragraph describing how information from lower-level detainees is used to "probe the high value detainees further" (the citation is misused to argue that the program cannot be judged based on the individual pieces of information elicited; 9)

Two references to the application of SERE techniques to torture (12, 37)

A long footnote admitting that CIA used torture when they didn’t need to with Abu Zubaydah (31)

This is not to say that the interrogation program has worked perfectly. According to the IG Report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information. See IG report at 83-85. On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements with CIA Headquarters still believed he was withholding information. [Redaction of more than one full line] See id, at 84. At the direction of CIA Headquarters interrogators, therefore used the waterboard one more time on Zubaydah. [Redaction of ~3/4 of a line] See id, at 84-85.

This example, however, does not show CIA “conduct [that is] intended to injure in some way unjustifiable by any government interest,” or “deliberate indifference” to the possibility of such unjustifiable injure. Lewis, 523 U.S. at 849. As long as the CIA reasonably believed that Zubaydah continued to withhold sufficiently important information, use of the waterboard was supported by the Government’s interest in protecting the Nation from subsequent terrorist attacks. The existence of a reasonable, good faith belief is not negated because the factual predicates for that belief are subsequently determined to be false. Moreover, in the Zubaydah example, CIA Headquarters dispatched officials to observe the last waterboard session. These officials reported that enhanced techniques were no longer needed. See IG Report at 85. Thus the CIA did not simply rely on what appeared to be credible intelligence but rather ceased using enhanced techniques despite this intelligence.

A footnote describing a discussion about the CIA’s intermittent involvement in interrogation (32)

The number of times Abu Zubaydah (83) and Khalid Sheikh Mohammed (183) were water boarded (37)

Update: Fixed my dates. Update: Fixed the waterboard numbers for AZ.

Update, 6/22/09: Added some missing references to mentions of the IG report.

62 replies
  1. emptywheel says:

    Here’s the thing.

    If they were under the impression that KSM was still not cooperating after they waterboarded him over 150 times, then how can they claim it was effective?

      • emptywheel says:

        When you read the snippets of the IG report that make it into the Bradbury memos, you understand why someone (if I had to guess, Dan Levin) said,

        raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized. The source said, “You couldn’t read the documents without wondering, “Why didn’t someone say, ‘Stop!’”

        • AZ Matt says:

          Ends justify the means

          The leadership had no concept of what they were doing. They thought it was like TV show, they would uncover a huge plot and be hailed as heros. One wants to just cry.

        • scribe says:

          Go back to the Gulag Archipelago (and other historical accounts of Stalin’s Great Terror): periodically, they had to liquidate (w-h-a-c-k) the NKVD interrogators because the torture had “stripped them of their souls” (to use a phrase) – dehumanized them to the point that they were useless for any purpose and a danger to everyone around them.

          That’s what torture will do to the torturing party’s own people.

        • earlofhuntingdon says:

          Excellent catch about one consequence of adopting torture – the need to kill torturers themselves after they reach their “sell by” date. I’ve noticed that all the copies of the Gulag have been borrowed for long periods of time at my local libraries, unusual for a thirty year-old work. Mr. Bush and now Mr. Obama have made it become so timely.

        • scribe says:

          So, go buy a copy, and donate it (to be on reserve, behind the counter, maybe).

          I’d suspect the library copies have been checked out and “lost” by wingnuts who know what it contains.

          Putting it on reserve would eliminate the wingnut problem.

          One wonders, though, whether the FBI and its NSLs were used to find out who’s been reading Gulag….

      • sojourner says:

        I have said it before and will say it again (although I can also see your point at #6): Someone in the Bush Administration was a real sicko and just wanted to do it this way. I suspect that that someone has a whole lot of tapes and DVDs of what went on and enjoys watching them. Most normal people cannot conceive of doing what was done to these people — and I guess that is the rub. Whoever wanted this done is obviously not normal. Was anyone in the Bush Administration “normal?” I wonder…

    • Skilly says:

      Wow, that is the first time I saw a number for how many times he was water-boarded. Surely there is a publication floating around (pun intended)somewhere, about the effectiveness of repeated enhanced interrogation techniques, updated with the latest, greatest data?

      • Rayne says:

        Think that’s the first time I can recall seeing the exact number of times, too, although I think I’ve read estimates elsewhere, and I know the amount of video suggested something unusual (jeebus) was happening with regard to waterboarding, as puzzled over last year in EW’s site.

        This is the very definition of insanity: doing the same thing over and over again, but expecting different results.

        Once was illegal and inhumane, but this many times was absolutely batshit insane. Pathological.

        There can be no good faith argument, but perhaps the exercise here is not that Obama is allowing leeway for good faith, but that the perpetrators have been given room to believe from their insane perspective that they have leverage to negotiate and roll up on others.

    • pdaly says:


      Wondering now if Fox’s 24 show was not really the inspiration for the torture. Afterall, the character Jack Bauer gets info in minutes, and usually on his first or second try.

      Those real life torturers must feel like abject failures in the face of a successful TV ‘hero’ like Jack.

      Also, whenever Jack is tortured, it never works. He usually escapes his confinement and kills the torturer. Wondering why Jack’s ability to withstand torture isn’t a demonstration that torture is useless on heroes inspired by their righteous cause.

  2. Stephen says:

    It’s one issue to declare there will be no prosecutions for torture but what about death during the torture process. Any evidence of deaths at this point or is it just missing people?

    • bobschacht says:

      Any evidence of deaths at this point or is it just missing people?

      No, there’s honest to God deaths, certified by coroners who were called in after prisoners died in custody. Some them are even certified homicides, IIRC.

      Bob in HI

  3. bobschacht says:

    Someone in the Bush Administration was a real sicko and just wanted to do it this way.

    Dick Cheney fills the bill, with his infamous comment soon after Sept. 11, 2001, that “We’ll have to work sort of the dark side, if you will.” See Jane Mayer’s book “The Dark Side.” Of course, he probably had a few like-minded sickos working with him.

    Bob in HI

    • sojourner says:

      Well…I didn’t want to point any fingers or anything, but I think you have made a pretty valid assumption (wink, wink…)

  4. DWBartoo says:

    EW, you state that “the CIA wanted to use torture …”

    I have no doubt that someone in the CIA wanted to use the “enhanced inter… ” …oh hell … TORTURE ‘methods’. Someone in the Agency wanted, beyond whatever ‘encouragement’ they were receiving from the White House, of their own volition, and without ‘cover’, if only to ‘please’ the W.H. to initiate their own ‘program’.

    If this is so, then Obama was and is, perhaps, too quickly willing to absolve many within the Agency of culpability for rogue behaviors, which decision might well come back to bite him rather uncomfortably.

    How much ‘independent’ torture activity might the Agency have been involved in? Considering its past history, the Agency should not be considered to be pure as the driven snow, as none of us do, but, to put it bluntly, in your opinion (should you be willing to share it), how dangerous to the nation has the Agency now become?

    Given the apparent unwillingness (fear?) of Congress, so far, to wade into this mess, even though that is, obviously their ‘job’, how may we ‘move forward’ as a society until all of these many questions (with new ones arising daily) are either answered or proven to be of no moment?

    That is, of course, a rhetorical question as the Political Cla$$ appears to have no interest in the answers.

    • scribe says:

      Well, one upside of putting out there a letter stating that people who relied on the memos in good faith yadda-yadda won’t be prosecuted is that they can no longer refuse to cooperate with other people coming in to ask them what they did, where, when, how often and to whom. No fear of criminal prosecution means no right against self-incrimination (we had this discussion when Bushie commuted Scooter’s sentence) means you gotta answer.

      Of course, if they lie…. That’s a new crime.

      • DWBartoo says:

        Agreed, scribe, and thank you for answering, but whom do you imagine will ask the hard questions?

        Especially if the Sunstein maxim prevails.

        (Not to mention aspects of ‘complicity’ that might tend to make some of the ‘players’ play ’softball’ using nerf balls and lightweight, foam-rubber ‘bats’.)

        Unless it is an independent agent or ‘group’ having all necessary powers to compel both ready cooperation and a general truthiness, this looks likely to be swept under the carpet as quickly as the powers-that-be can manage.

        • scribe says:

          Look, I’m more than a little surprised these even saw the light of day.

          I figured there would be some flavor of trade:

          Holder sees how Skeletor gave his client (Chiquita) a pass for supporting anti-union terrists in Colombia, then on achieving office gives Skeletor and his Rethug buddies a pass for torture. One wink and one nod would have marked a rough approximation of “deal done, all balances paid”.

          That this actually came out surprised me no end.

        • DWBartoo says:

          Agreed once again, I never imagined we would see as much as we have.


          However, if the ‘investigation’ is conducted by the likes of Sen. Feinstein, as Bob suggests might be the case, then we must all watch out for errant nerf balls …


      • Valtin says:

        Here’s the problem: “I don’t remember.”

        You have to bargain with them for immunity, to get their cooperation. That’s why Obama’s deal is without merit, if you assume they have in mind ever prosecuting those higher up.

        You don’t grant the small fry immunity carte blanche, e.g. with the mob, and then assume they’ll feel free to talk.

        This is their “hang-out”. They will wait out the storm. We need another shoe to drop.

        Senator Levin, where’s the uncensored SASC report, with all those juicy new documents, many of them regarding SERE, etc.?

    • bobschacht says:

      Given the apparent unwillingness (fear?) of Congress, so far, to wade into this mess, even though that is, obviously their ‘job’, how may we ‘move forward’ as a society until all of these many questions (with new ones arising daily) are either answered or proven to be of no moment?

      Diane Feinstein is the one person who is barging ahead, and not waiting from Republican permission for her Senate Select Committee on Intelligence to call for hearings, beginning within a month. Our main thing there, I think, is to keep her from conducting all hearings behind closed doors, which would be her preference. I think her committee’s hearings need to have a track open to the public, that will feature the same witnesses and most of the same questions. We need to put pressure on her for open sessions.

      Bob in HI

      • scribe says:

        Puhleeze – DiFi is putting on a show, but she’s in this as deep as any of the Rethugs. Don’t kid yourself.

        • bobschacht says:

          My point is that DiFi may be planning to put on a show, but once initiated, things can sometimes go not according to plan. Once started, she should be pressured to open things up, and if there is sufficient public clamor (a la Saturday Night Massacre), she may not be able to keep things all bottled up.

          At the beginning of the Senate Select Committee chaired by Sam Ervin regarding Watergate, it was not his intention to remove Nixon from office.

          Bob in HI

  5. JThomason says:


    Not to undermine your comment but I wonder whether some descriptive phrase other than “sadistic” might be more accurate inasmuch as “sadism” is understood through allusion to a literary antecedent. And while I think that those who suggest some kind of perverse spectator impulse as underlying these abhorrent practices the depravity and perversity is not captured in this metaphor.

    Abhorrent, depraved, perverse, uncivilized, barbaric, gratuitously cruel, inhuman, grotesque, criminal, bestial, low, immoral, senseless, pestilent, ill, corrupt, infirm, festering are the terms where I would start my list in attempting to characterize these actions, but these too are inadequate.

    Still I do agree that the aspect that these things were done as part and parcel a kind of tyrannical or totalitarian pleasure disregarding humane standards with impunity in serving an elitist “good faith” needs to be retained. And if there is any question but that there is an elitist privilege being defined here consider the fact that Michael Vick has been in Federal prison for cruelty to dogs.

  6. rkilowatt says: at TPM “Sgt. who smeared whistleblower…”

    From :I am quite sure I was the first, in August 2008, to point out and establish that 1st Sgt. Hatley, recently convicted for murdering innocent Iraqis, was the same person that slandered Scott Thomas Beauchamp, who anonymously wrote about that and other incidents for TNR.

    Today Attaturk at Echaton as well as Josh Marshall at TPM post about that connection. No link for MoA though even when it is pretty obvious that this was picked from MoA by those who now run with it.

    So FYI… gains some credibility.

    • scribe says:

      Well, the former sergeant, now convicted of murder, will have the rest of his life to consider his acts – he was sentenced to life the next day.

  7. Cheryl says:

    The report by Human Rights First, Feb 2006:
    “Command’s Responsibility
    Detainee Deaths in U.S. Custody in Iraq and Afghanistan
    Written by Hina Shamsi and Edited by Deborah Pearlstein”
    has some horrifying torture and death cases profiled. Does anyone know much about this report?

  8. AZ Matt says:

    British sleep researcher is a bit pissed that his research was used by OLC: Sleep Expert “Surprised And Saddened” To Find Research Twisted In Torture Memo

    Informed by TPMmuckraker that his work had been put to this use, Horne — who heads the Sleep Research Centre, at Loughborough University in Leicestershire, U.K. — was indignant. He explained the crucial difference between his controlled experiments, in which subjects were under no additional stress, and the CIA’s use of sleep deprivation on interrogation subjects.

    “As soon as you add in any other stress, any other psychological stress, then the sleep deprivation feeds on that, and the two compound each other to make things far worse. I made that very, very clear,” he said. “And there’s been a lot of research by others since then to show that this is the case.”

    As for whether such stress could be considered “harmful,” Horne was unequivocal. “I thought it was totally inappropriate to cite my book as being evidence that you can do this and there’s not much harm. With additional stress, these people are suffering. It’s obviously traumatic,” he said. “I just find it absurd.”

    Further, Horne continued, sleep-deprived subjects become so confused that they’re highly unlikely to offer useful intelligence. “I don’t understand what you’re going to get out of it,” he said. “You can no longer think rationally, you just become more of an automaton … These people will just be spewing nonsense anyway. It’s pointless!”

    Teh Bush Administration and science…

  9. behindthefall says:

    The dehumanized personnel are no longer any use to any governmental agency. The quicker the CIA, for example, realizes this, the better. Prosecuted? I don’t know, given the latest reluctance. But retired? Without exception.

  10. JimWhite says:

    How solid is the evidence that Ghul was not waterboarded?

    In my Oxdown yesterday, I pointed out that in the May 30 Bradbury memo we learn that they changed from regular water to “potable saline” for waterboarding to prevent “pneumonia and hyponatremia”. [May 30 memo, p. 31] This proves that they knew massive amounts of water were getting into lungs and also being swallowed.

    I ask about Ghul because I am wondering, since Bush admitted we had him and then the government stopped talking about him, if he is dead. It seems at least possible that he was waterboarded with these more aggressive techniques and then died of pneumonia or hyponatremia. That would make a good basis for both the switch to saline and the absence of further info on Ghul. If he’s dead, why would they admit they waterboarded him?

    PS: “March” = May?

    • scribe says:

      Here’s a set of questions about him which I posed this morning:

      All that’s required now are (1) a Congressman writing the CIA “Where is Hassan Ghul? Please provide, with specificity and in detail, all particulars on the following since his capture was announced by President Bush in 2004:
      (a) his location on a day-by-day basis;
      (b) the dates of his being present at said location(s);
      (c) the means by which he arrived at said location(s);
      (d) true copies of all records reflecting, in any way, any advise to or agreement with any foreign government relative to his being located or in custody in each such location;
      (d) the dates of any interrogation(s), interview(s) or other contacts with officers or agents of the United States and/or person(s) whose presence was paid for by United States funds;
      (e) true copies of all records, including but not limited to video, audio, text and/or other forms of recordings;
      (f) whether he is alive or dead;
      (g) if alive, his current location;
      (h) if dead, (1) the date, place and cause of his death and whether said death was related, in any way, to any interrogation, interview or order (however expressed) from any United States officer or official, and
      (2) the present location of his remains and how they were buried or otherwise disposed of, and the identities of all persons with knowledge thereof.

      And, (2) FOIA requests to bombard the CIA and DoD asking the same things.

      Though, to be sure, getting an honest question to “Where is Hassan Ghul?” would go a long way….

      • Rayne says:

        Suggest you send your list of questions regarding Hassan Ghul by fax to Sen. Carl Levin as
        – chair of Senate Committee on Armed Services;
        – member of Senate Committee on Homeland Security & Governmental Affairs;
        – member of Ad Hoc Subcommittee on Contracting Oversight (assuming contractors were involved); and
        – chair of Permanent Subcommittee on Investigations.

        FAX: 202-224-1388 (DC office)

  11. Mary says:

    1 – and at least one of those times, from what Mayer wrote about, may have been just for the pleasure of the CIA agent (the same one who supervised the kidnap/abuse/release into the wild of el-Masri) who flew in for it, since she wasn’t involved in the interrogation process and didn’t have any reason to be there (and was censured). It’s funny how along with the destruction of the video tapes she was also bumped into a covert assignment so no one can mention her. Foggo may not be the only one who takes care of his chicks.

    “More troubling even than Bradbury’s crappy legal writing, then, is the way his own memos prove the program was unsafe even while declaring it legal.” Yeah – I think this is one of the big reasons for the resistance. There is so much that was done and isn’t in the four corners of that memo. Sure, people like Rizzo and Brennan don’t want the walk back, but even the Panettas and Obama who just want to get their morning briefings with a Sally Fields-ian “you like me, you really really like me” grin while wearing a, “Have U Hugged Ur Torturers 2Day” t-shirt have that concern. Much easier to pronounce over “let’s just go forward, they only did what OLC gave them the OK to do” when you don’t have the OLC opinions that don’t give them the ok to do the things they did in the open.

    As bad as the memos are, and they are bad and should be pulled to pieces and NEVER allowed to stand as support for that crap being “policy” rather than crime – the real problem for the torturers is that they don’t give they cover they’ve been claiming they had.

    I have to admit that for awhile I’ve wondered if there isn’t a bit more to the delay on getting Johnsen into OLC than just the grouchy Republicans. Right now, as Obama is making pronouncements himself, under his own signature, about things like not pursuing CIA torturers and playing games with shipments of GITMO prisoners and claiming the power to ship kidnapped persons from around the world to Bagram and hold them without habeas and pursuing contempt claims against GITMO defense lawyers who sent him a memo, completely redacted by his own DOD, because – – – they sent him the redacted memo etc. —- I really have to wonder if there’s not all that much pressure by Obamaco to get Johnsen into OLC right now bc having her out gives him more flexibility with less criticism on some of what he is doing. While HOlder was a pushover, someone like Johnsen rendering a formal OLC opinion that the torturers are not covered before Obama makes his final policy call on that would have made Obama’s move much more problematic.

    I guess what I dislike most is his cowardice on it. If he’s going to protect the torturers, he needs to go ahead and issue specific pardons to them and let it be the record – these men and women did this and this and this and I, Barack Obama, as my legacy, pardon them.

    He and Bush have both been far too cowardly for that – better to just destroy the nation’s justice system than to take responsiblity.

  12. cbl2 says:

    About an hour ago . . .

    Congressman Nadler calls on POTUS to appoint a Special Prosecutor –
    Big Orange

    Rep. John Conyers, the Michigan Democrat who is chairman of the House Judiciary Committee, on Friday raised the prospect of prosecutions of senior Bush Administration officials and Justice Department lawyers who authorized the harsh interrogations.

    “If our leaders are found to have violated the strict laws against torture, either by ordering these techniques without proper legal authority or by knowingly crafting legal fictions to justify torture, they should be criminally prosecuted,” he said in a written statement


  13. cbl2 says:

    speaking of Johnsen –

    It’s a world gone mad …

    Santorum, yep that Santorum, advises his fellow Republics:

    their party should take the filibuster off the table as an option against President Obama’s judicial nominations.

    check out the unbelievable link – he’s rational, sensible, and speaks in coherent sentences.

  14. Mary says:

    27 – the memos indicate that the CIA directly performed “enhanced interrogations” on 28 out of 94 detainees. Some did end up turned over to GITMO and Bagram at earlier times, but as Ghost Plane details, some of those we shipped off to other countries are either still in jails there, without charges, or have disappeared.

    Keep in mind what Panetta has told the CIA employees as well:

    a) “CIA retains the authority to detain individuals on a short-term transitory basis” without regard to proof, probable cause, age, gender, etc.

    b) during those detentions (and he doesn’t specify how the person comes into their hands to start with – home invasion, kidnap, etc.) anything and everything in the Army Field Manual, including appendix, can be done without any authorization or limitation issues

    c) “We anticipate that we would quickly turn over any person in our custody to U.S. military authorities or to their country of jurisdiction, depending on the situation.” Nothing about not transporting in violation of Geneva Conventions, nothing limiting to compliance with Geneva Conventions and Conventions Against Torture for those turnovers as well as nothing about making the detention and turnover public v. disappearing people.

    d)The big one: “Officers who act on guidance from the Department of Justice—or acted on such guidance previously—should not be investigated, let alone punished” emph added. That part of his statement if forward looking – making sure they preserve the option of President gets OLC to say what he wants and that’s that.

    It would be nice to have some limiters coming from somewhere. Right now it is very remiscent of the Taliban in Pakistan. First the Executive/Gov there just encouraged the out of control sadists for particularlized ends, now Gov there is becoming subjugated to the whim of the torturers. Obama, Holder and Panetta won’t say it out loud, but that’s the essence of what has happened here. The office of the President has had its power to enforce the law vacated by its own, in house torturers. I don’t know if any President has so clearly and so publically diminished the office as Obama has by his act to certify torture as policy, because the torturers told him he has to.

    • bobschacht says:

      d)The big one: “Officers who act on guidance from the Department of Justice—or acted on such guidance previously—should not be investigated, let alone punished” emph added.

      But doesn’t this leave exposed those who tortured BEFORE the OLC/DOJ opinions were written? Evidence presented here in the Wheel House shows that the memos came after the torturing had already begun.

      Bob in HI

      • earlofhuntingdon says:

        One gets the sense that torturers, the White House, DoD, and the OLC worked hand-in-glove on this for months and only resorted to formal opinions later, perhaps when the “kinks” were worked out and torture began to be used more widely.

  15. Mary says:

    8 – you might want to google Cyril Wecht some. He was the coroner who declared that the death of Jamadi, the ‘ice man’ in the Abu Ghraib pictures who died while a CIA agent (whose identity is known) was “interrogating” him. Wecht signed off on that death as a homicide. Since them, USAtty Mary Beth Buchanan has gone out of her way to use every bit of the power of the US DOJ to go after Wecht. Same Mary Beth who won’t offer her resignation and says she’s done such a good job for the CIA her district that she should be declared USAtty for life.
    Here’s a start link for you.

    • earlofhuntingdon says:

      Excellent point about why Wecht would be in the sights of a Bush-era USA on trumped up charges. Why on earth has Obama left USA Buchanan in Pittsburgh and the twin Valkyries in Alabama, not to mention dozens more around the country?

      Wecht is also a prominent critic of the lone assassin theory regarding JFK’s death. He is particularly harsh concerning the incompetent autopsy performed on him, and the mishandling of its records and physical evidence (virtually all of it, including such unique evidence as the remains of Mr. Kennedy’s brain, which went missing from the National Archives.)

  16. freepatriot says:

    it’s time somebody told Barack Obama that HIS ASS is on the line here

    Mr Obama can talk about “retribution” and use other language that he, Mr Obama, seems to think, justifies or excuses this WAR CRIME

    you better get a clue dude

    you can’t ERASE what george walker bush did

    you can only obstruct the LAWFUL INVESTIGATION AND PROSECUTION



    if barack obama refuses his SWORN DUTY, which he voluntary accepted when he swore to uphold and defend the constitution, then he is just as guilty as george bush. And it will be the duty of the next President to arrest and prosecute Barack Obama for CRIMES AGAINST HUMANITY

    and history doesn’t forget the slimy shits that are convicted of crimes against humanity

    has anybody explained that to barack obama

    considering that he is a constitutional law professor, some schmuck like me probably doesn’t explain it to him

    but JUST IN CASE …

    you ain’t foolin ANYBODY MUTHERFUCKER

    and providing cover to war criminals is a sure way to end up on history’s SHIT HEAP

    this is now about YOU, Barack Obama

    History is watching

    • BoxTurtle says:

      OT: Hey Freep! You still need advice about turtle raising?

      Boxturtle (Years of experience with most common ones and some uncommon ones)

  17. skdadl says:

    I had a funny experience today. First I read Hayden and Mukasey in the WSJ, and then, after I calmed down a bit, I read Andrew Sullivan saying of their column just about exactly what I thought:

    What Mukasey and Hayden are arguing for today is a scheme whereby, in secret, the US government credibly allows captives to believe they are in an endless, bottomless pit of extra-legal terror. This is the state of mind they are trying to construct by torture.

    Iow, they are arguing that the U.S. must remain free to be a terrorist nation. There’s just no other way to read them.

    I don’t agree with Sullivan’s conclusions, but the analytical parts of that column are very good. (See also the vicar’s egg.)

  18. Mary says:

    One other item – to show how the torture creates need for more torture, etc.

    Here is how the memo describes the decision process for torture – if you have a “participatory” detainee, they get a bye, but if they aren’t partcipatory, then it’s all aboard the torture train. So how do you make that “participatory” determination:

    In order to be judged participatory, however, a high value detainee “would have to willingly provide information on actionable threats and location information on High Value Targets at large – not lower level information” … If the detainee fails to meet this “very high” standard, the interrogation team develops an interrogation plan, which generally calls for the use of enhanced techniques only as necessary and in escalating fashion.

    So if you had someone like Zubaydah whose info on actionalbe threats is limited, or like el-Masri nonexistant, how do they keep from being tortured?

    Making stuff up.

  19. Mary says:

    39 – I don’t think I can go read anything by either of them. Hayden is such a disgrace to his uniform. When I was a kid I read comic books and in the old Superman comics there was this Bizarro World theme – where everyone had dopplegangers from Bizarro World who sometimes leaked through.

    Hayden is Bizarro World’s Elmer Fudd.

  20. JThomason says:

    The more I consider Obama’s apparently giving a pass on accountability, the more it appears that within the paradigm of military action in which he is counseled the possibility of the capture of US Troops is considered negligible. I think it says a lot about the assessment of strategic conditions and the effectiveness of automated military operations. If the morality of the military calculus counsels this approach it certainly leaves a lot to be desired from the standpoint of creating a standard of permissible political action. Obama in this way seems short sighted with respect to the implications of modernity especially in the face of the considerations of “necessary” governance so needy of the presumption of legitimate purpose.

    Its really the same critique that can be levied against Bush in light of a presumption of a legitimate rational international opinion. Again it is the culture of the Capitol that perhaps obscures these very real considerations.

  21. MadDog says:

    A most excellent set of dot connections EW! You’ve done yourself proud once again!

    A couple questions:

    Wrt this point:

    The number of times Abu Zubaydah (90) and Khalid Sheikh Mohammed (183) were water boarded (37)

    These are blockbuster numbers! Can you/would you substantiate your math?

    As an aside, does anyone else find it strange that AG Holder has announced the release of the previously classified OLC Torture Memos, and yet he and the DOJ have not (and perhaps will not) provide copies on the DOJ’s or the OLC’s websites.

    Yes, AG Holder made them available to the ACLU, but it sure appears as if he wants nothing to do with hosting them on government websites.

    • MadDog says:

      P.S. – It seems that the ACLU re-did their PDF capture of these documents (i.e. May 30 memo) and while making them text documents capable of text searching and text copying, instead of “image” PDF documents, I have to say that their re-do of the PDF capture was pretty “dirty”.

      Oh well, one can’t have everything. *g*

    • emptywheel says:

      Shit–I got AZ wrong–it’s 83.

      Page 37 of the May 30 memo:

      The CIA used the waterboard “at least 83 times during August 2002″ in the interrogation of Zubaydah, IG Report at 90, and 183 times during March 2003 in the interrogation of KSM, see id at 91.

      • MadDog says:

        Page 37 of the May 30 memo

        Sorry, but I’m not finding it. The trouble may be:

        Your May 30 Memo actually links to the May 10 Memo from Bradbury to Rizzo.


        The rather crappy “dirty” PDF conversion that the ACLU has now done with the documents.

        I’ve actually tried searching on the latest May 30 ACLU version of the document, but the “dirtiness” of the PDF conversion has really made a big mess out of the text.

        For example page 37 in that version of the May 30 Memo is now almost 1/3 gibberish.

        I’ve also gone to the NYT’s version of these documents, but no luck there either.

        Help! Does anyone have a better text-searchable version of these memos?

  22. Mary says:

    43 – I guess thhose NSLs would take them right back to DOJ – how to memos for OLC.

    I have to pull up your comment from the prior thread linking to the rawstory report that the leaked memos are getting a few people at least to revisit the stories of what happened to KSM’s children. That’s a topic that has bothered me for a long time and it was a little heartening to see it at least get a mention at Raw Story, which went back to the evidence from the Majid Khan tribunal as well. From the Raw Story report:

    Bush Administration memos released by the White House on Thursday provide new insight into claims that American agents used insects to torture the young children of alleged 9/11 mastermind Khalid Sheikh Mohammed.

    [From evidence given by Majid Khan’s father at his tribunal:]
    My sons were hooded, handcuffed, and interrogated. After eight days of interrogation by US and Pakistani agents, including FBI agents, Mohammed was allowed to see Majid.
    “Majhid looked terrible and very, very tired,” Khan continued. “According to Mohammed, Majid said that the Americans tortured him for eight hours at a time, tying him tightly in stressful positions in a small chair until his hands, feet and mind went numb. They re-tied him in the chair every hour, tightening the bonds on his hands and feet each time so that it was more painful. He was often hooded and had difficulty breathing. They also beat him repeatedly, slapping him in the face, and deprived him of sleep. When he was not being interrogated, the Americans put Majid in a small cell that was totally dark and too small for him to lie down in or sit in with his legs stretched out. He had to crouch. The room was also infested with mosquitoes. The torture only stopped when Majid agreed to sign a statement that he was not even allowed to read.”
    Later in his statement, Khan alleges that the Pakistani guards revealed other abuses by American agents.
    “The Americans also once stripped and beat two Arab boys, ages fourteen and sixteen, who were turned over by the Pakistani guards at the detention center,” he said. “These guards told my son that they were very upset at this and said the boys were thrown like garbage onto a plane to Guantanamo. Women prisoners were also held there, apart from their husbands, and some were pregnant and forced to give birth in their cells. According to Mohammed, one woman also died in her cell because the guards could not get her to a hospital quickly enough. This was most upsetting to the Pakistani guards.”

    The RS report also mentions the look that the story is getting from the History Commons blog That blogger also looks at the Suskind story (that the CIA told KSM they were going to be torturing his children – now go and look for that in the memos, esp vis a vis the CAT definition of torture to include threats of harm to family members) and Khan testimony and wonders about this:

    The link between the August 2002 memo authorising insects and the Khans’ allegations of insect use later that same year or early the next year is troubling. Did the Khans invent the allegations or garble them in some way and then “get lucky” two years later, when it was revealed the CIA was, at least, contemplating the techniques they alleged it used at the time in question? Given that nobody heard of the CIA using insects for another two years, why would they invent these specific allegations, which sounded bizarre when they were made?
    The alternative is that the Khans are right and insects were used against KSM’s children. The CIA has never given an account of their detention and interrogation. If they were interrogated, it is unclear what guidelines would have been used. Their whereabouts are currently unknown.

    No one ever mentions these children, so I’m glad to see something. I don’t even know of a habeas petition for them. There might be one, it would be ez for me to miss things since I just follow some feeds and google now and then.

    No one here in the US has done much, either, to ask any questions about how in the hell, with the arrest of Aafia Siddiqui, the US personnel involved in her detention, questioning and shipment to the US would just turn over her 14 yo American citizen son and let him “disappear.” I’m glad Pakistan found him and got him back, but what the hell was going on? Why wouldn’t he have been brought back to the US too? It makes no sense – he’d have been a witness, he was a minor and an American citizen, there’s not reason for him to have been disappeared over to Afghan authorities.

    How you have so many people sit so mum on issues involving children mystifies me.

    • freepatriot says:

      How you have so many people sit so mum on issues involving children mystifies me.

      we got a country full of so-called christians, and these mooks are defending the torture and murder of adults

      so what’s a little more cogitative dissonance among friends ???

      I can’t believe the teabaggers are out protesting tax issues while the president is defending torturers

      talk about a fucking disconnect

      the president says he can kidnap, torture, and murder anyone on the planet

      and these fucking mooks are worried about their money

      ever heard the old joke about the guy who, forced to choose between his money or his life, chooses his money, cuz he’ll need the money for his old age

      some people just don’t fucking get it

    • Stephen says:

      Yes Mary, it is mystifying regarding the issues involving children and the missing attention paid to their treatment and handling. Also it seems like we are following the bouncing ball of torture and the act of torture but not the more serious “end result crime” of murder or negligent homicide.

  23. Mary says:

    50 – technically from grammatical approach I think so, although I think his intent was probably more to reassure for past torture and also make sure that people know that they may be asked to do some very iffy things again and they should just go with the flow. One of the memos does, btw, reference the fact that OLC/DOJ was also giving oral advice and the August 2002 memo, IIRC, says that it is being given further to prior oral advice. So the advice from Ashcroft via the Principals group meetings or lawyers like Addington, Bellinger etc. in combo with DOJ lawyers may have existed in oral form before the memos.

    back to my 48 I want to include this from 2007 – one of the few stories around back then about 39 disappeared persons and possible US involvement – from the memos description of 94 “guests” at the CIA blacksites (not counting people like Maher Arar shipped elsewhere) there have to be, if Congress ever looked at it, quite a few more than that. But still, fwiw, from 2007:

    Six human rights groups urged the U.S. government on Thursday to name and explain the whereabouts of 39 people they said were believed to have been held in U.S. custody and “disappeared.”

    The United States has acknowledged detaining three of the 39. The groups said, however, there was strong evidence, including witness testimony, of secret detention in 18 more cases and some evidence of secret detention in the remaining 18 cases.

    “We have families who have not seen their loved ones for years. They’ve literally disappeared,” Mariner told Reuters.
    Among the cases detailed in the report is the detention in September 2002 of two children, then aged seven and nine, of confessed September 11 mastermind Khalid Sheikh Mohammed, who was later detained and is now held at Guantanamo.
    “According to eyewitnesses, the two were held in an adult detention center for at least four months while U.S. agents questioned the children about their father’s whereabouts,” the report said.

  24. freepatriot says:

    yeah to the turtle raising advice

    I got’s two of em in my care (an one of em don’t like me much) and the neighbor kid has been putting her turtle in the habitat we built

    the person who keeps them here is visiting them, and teaching me how to care for them, but we could always use advice

    the neighbor kid’s turtle is a water turtle called billy bob (typical pet shop variety). he started out the size of a quarter a few years back, and he lived in a water tank for most of his life. Now he’s the size of my open palm. he avoids the water in the habitat, and buries himself in the shady leaves under a Camilla bush.

    we have to bring the turtles in at night (raccoons), so billy bob goes back in his tank at night. I wonder if we should be putting him in something dry for a while (or drier, at least)

    the other two turtles are Squirt and Flash. they’re regular land turtles, slighly smaller than billybob. I think we got two different species here, but they could just be different sexes of the same species. they eat grapes, apples, broccoli, squash, and dandelions. On special occasions they get meal worms and fish (billybob joined in their latest feast)

    if ya got any turtle tips, I could use em

    I’m most concerned about their shells. They all got “shell” issues

    billybob’s shell was kinda flaking off in thin pieces before we put him in the habitat. now it looks better, but I ain’t sure that’s really good

    flash has a small (but wide) crack in the center of his back, near his tail (that might be normal too)

    and poor lil squirt once involuntarily served as a chew toy. the flared edges of his shell got gnawed off (this was about three years back) and it isn’t growing back

    so I was wondering if anybody had any tips or quips

    I might even learn to post pictures on the innertoobz, just for the turtles

    so I might have gone way off topic, and rambled a bit, but I really like the turtles (even if squirt hisses at me, the bastid)

    and one final note, flash is named in honor of the turtle in “Daddy Daycare”

    at “show and tell”, the kid in the Flash Gordon costume says:

    “This is my turtle”

    then he kicks it across the floor like a hockey puck

    jes so you know, we don’t really kick flash around

    this has been a test of the turtle tips network, no turtles were hurt during the posting of this comment


  25. LabDancer says:

    Apologies if this point has been made before — also, I get the impression Ms EW has been implying this for some time:

    Are the May 2004 OLC memos, considered in the entire context of what we know, in any way inconsistent with a determination having been made in the spring 2002 that, having already obtained from AZ very likely all useful information, his particular circumstances and condition meant that he presented, in essence, as an unusually fortuitous candidate [apparently to some, and perhaps irresistible to at least one] for use as a guinea pig?

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