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

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

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

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

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

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

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

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

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

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

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

Here’s how the plays into the context of the July 13 fax.

July 10, 2002: The first piece of intelligence from Abu Zubaydah–describing the relationship between Khaldan and Derunta training camps and al Qaeda–used in the 9/11 Report.

July 10, 2002: Two CIA attorneys conduct legal analysis via email–in anticipation of litigation–on a specific issue that arose in the context of the CIA’s counter-terrorism program.

July 10, 2002: John Yoo tells Jennifer Koester that they will present the Bybee memo to NSC at 10:45 on July 12 (and names the Bybee Memo the “bad things opinion”!).

July 11, 2002: John Yoo and Jennifer Koester have briefing session with Michael Chertoff on Bybee Memo.

July 11, 2002: An OLC paralegal cite-checks the draft, and someone schedules a July 12 meeting with Alberto Gonzales and a July 13 meeting with (effectively) NSC.

July 12, 2002: First draft of Bybee Memo distributed outside of OLC.

July 12, 2002: John Yoo meets with Alberto Gonzales (and either David Addington or Tim Flanigan) on Bybee Memo.

July 13, 2002: John Yoo and Jennifer Koester present July 12 draft to John Rizzo, John Bellinger, Michael Chertoff, Daniel Levin, and Alberto Gonzales. Rizzo provides overview of interrogation plan. Chertoff refuses to give CIA advance declination of prosecution. Levin states that FBI would not participate in any interrogation using torture techniques, nor would it participate in discussions on the subject.

July 13, 2002: Rizzo asks Yoo for letter “setting forth the elements of the torture statute.”

July 15, 2002: John Yoo faxes John Rizzo July 13 letter on the torture statute.

July 15, 2002: John Yoo sends Jennifer Koester an email telling her to include a footnote in the opinion stating that they had not been asked about affirmative defenses like necessity, self-defense, or commander-in-chief powers.

July 16, 2002: John Yoo and Jennifer Koester meet with Alberto Gonzales and (probably) David Addington and Tim Flanigan. Yoo shared the July 13 fax with them. At the meeting, it is decided that Yoo will include Commander-in-Chief and other affirmative defenses in Bybee Memo.

July 16, 2002: In response to earlier request from Michael Chertoff (perhaps as early as July 13), John Yoo has Jennifer Koester draft, but not send, a letter to CIA refusing a letter of advance declination of prosecution.

July 17, 2002: George Tenet meets with Condi Rice, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

In other words, this entire discussion–including the meeting at which David Addington appears to have told John Yoo to put in affirmative defenses–happened in the wake of this issue that arose, almost certainly in Abu Zubaydah’s torture.

There’s one more item of interest, particularly considering the torturers’ boast that they had inflicted “hard dislocation” on him during his 63rd session which “was one of the few [things] led to him providing significant actionable intelligence.”

The first piece of intelligence based on Abu Zubaydah interrogation cited by the 9/11 Commission (albeit a fairly innocuous piece of intelligence about the Khaldan camp), was dated July 10, 2002. The same day the CIA lawyers were worried about litigation.

It would all make so much sense (though this is a wildarsed guess). They do something that causes AZ severe mental suffering–something amounting to a threat of imminent death, like waterboarding or mock burial. In response to that treatment AZ gives his torturers the first piece of intelligence that actually involves al Qaeda (because, of course, he wasn’t a member of al Qaeda). But the treatment is serious enough that CIA’s lawyers (probably including John Rizzo) start worrying whether it can get the torturers charged with torture. That probably weighed heavily on John Rizzo when, after he presented the “proposed” torture program on July 13, the country’s top prosecutors reacted badly. And so, panicked, he asked John Yoo for a fax laying out how to avoid being charged under the torture statute. And while CIA and OLC danced around for two more weeks preparing a document that made the torture program look palatable enough to sign off on, that wasn’t what CIA would rely on.

There’s just one problem with the timing of this. If you look at the pattern of cables reporting on interrogations, the entire month of July (actually, everything after June 19) consists of a single 2-3 page cable every day (the single exception is July 20, when a 5-page cable is sent). At least judging from the cable traffic, there appears to be no turbulence or extraordinary events during this entire period.

But whether the issue that arose actually happened close to July 10 or happened earlier, it does appear that that issue lay behind the July 13 fax.

Update: Headline changed.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

56 replies
  1. MadDog says:

    Couple of things:

    Small typo in the following – should be “officially”:

    …A “four page cable from the field to CIA Headquarters,” dated April 11, 2002, containing “information relating to the CIA’s terrorist detention and interrogation program” (note, this was the day Yoo official started on the Bybee Memo)…

    And your timeline item of:

    July 16, 2002: In response to earlier request from Michael Chertoff (perhaps as early as July 13), John Yoo has Jennifer Koester draft, but not send, a letter to CIA refusing a letter of declination of prosecution…

    Regarding the “declination of prosecution” point, should this have an even stronger characterization as advanced or prospective “declination of prosecution”?

    It’s an important point as I know you see. *g*

    • emptywheel says:

      Thanks. Both helpful suggestions.

      Btw, I’m sure the cables and the sessions don’t match up one-to-one, but I was interested about what date the 63 cable was sent: May 1.

      • burnt says:

        This is a nerdly question but it’s something I’ve been wondering about. Cables?! Cables aren’t sent anymore by the likes of the CIA are they? I was sending telexes in the early 90s for a humanitarian organization to their outposts in Africa and India but even then it was clear they were on their way out. Technically, these communications were cables. However, these days “cables” are just shorthand for encrypted satellite transmissions, correct? Or are our Intelligence gathering orgs that far behind the times? I have to ask because “cables” are referred to all the time.

  2. scribe says:

    EW: Just keep in mind that saying a document was “prepared in anticipation of litigation” is a lawyerly way of waving a magic wand which immediately cloaks that document with the attorney work-product privilege. This privilege then prevents later discovery of that document.

    So, it might not be as damning as you might think, from first glance. They may just have decided to bring in the lawyers to help design whatever it was they were intending to do (rather than leave it solely to the agents and contractors) and thereby provide yet another cloak ot it by saying they anticipated litigation over it.

    On another point, it might be helpful to look at the chronology of the various litigations which were already ongoing or contemplated (e.g., the ACLU saying “we’re gonna sue”) at the time the work-product magic words were uttered over the document in question. By that time – summer 2002 – there was already both litigation over Jose Padilla (like, first of all, his lawyers trying to find where they’d whisked him) and possibly over the captives already having been shipped into Gitmo. Not to stretch too far, but I would not be surprised in the least if the CIA did not have someone participating in the torture of Padilla (at least as an observer), nor would their participation in proceedings at Gitmo be out of the question. So, one or more of those (or other threads) of interrogation may have been intersecting at a high level in the CIA – the methods almost surely were – leading to the direction to the CIA GC office that they get a handle on the legalities because if we’re getting sued about A’s captivity and we’re doing to B what we’re doing to A, we need to anticipate we’ll be in liigation over B’s captivity (and treatment), too.

    • MadDog says:

      I do agree that you have a point regarding the general usage within many CIA documents of the phrase “prepared in anticipation of litigation”, however, I also find that EW’s point resonates with me as well.

      …The document contains the attorneys’ legal analysis as it relates to a specific issue that arose in the context of the CIA’s counter-terrorism program, which was created in anticipation of litigation…

      The phrasing and the timing that EW notes used in this particular instance, while giving them the “attorney work product” shelter you mention, also seems utterly pregnant with CIA foreboding.

    • emptywheel says:

      Maybe, but go back to two things.

      First, the scope of the FOIA. This document has to, by definition, pertain to something that would have appeared on the torture tapes. While a lot of this discusses, generically, torture that was also shown on the tapes (so, for example, some of this stuff is almost certainly a generic description of waterboarding), anything specific at this has to refer to either AZ or al-Nashiri, and given the date, therefore to AZ in this case.

      Also, remember that Padilla and Gitmo (for the most part) weren’t CIA. Binyam MOhammed may have been, and prisons in Afghanistan were, though.

      Then go onto who had this document: CIA IG. So it was of sufficient import and sufficiently relevant to CIA IG’s investigations (which included both the general investigation of the torture program which we’ve seen, albeit in redacted form, and a specific investigation of the torture tapes) that IG got it.

      And while you’re right that the term “in anticipation of litigation” works like a magic wand, it is used in fairly specific form in CIA’s documents (or at least not claimed in FOIAs). While it is apparent that a number of the general torture approval documents use it (including the MOU for the first Bybee Memo meeting, and some but not all of the Legal Principles documents, which of course were written with criminal sanctions in mind), most of the others in this batch that use the term are pretty clearly in response to specific allegations (for example, the communications about specific events leading up to the IG investigation, or interviews about specific events).

      So you may be right–they may be just talking about a generalized concern (which would still be interesting since it would tie to the July 13 document), or they may be talking about a specific event w/Zubaydah. But if they’re talking about a specific event, it’s most likely related to Zubaydah bc of the scope of what could be in there.

      Though your point would explain why there wasn’t any obvious turbulence in the cables from the Field associated with this.

      • emptywheel says:

        A couple of more thoughts.

        First, it is true that this may be a generalized issue, such as: “What are we going to do about the fact that that nutcase Mitchell insists on using mock burial, but that prig Ali Soufan had such a conniption fit back in May over it?” That is, it’s possible that this was still all about a future event, hypothetically Mitchell’s insistence on using techniques that were probably illegal.

        Second, it does seem very likely that, whether it was a specific event, or the specific, generic, issue, the issue was about threat of death (given the focus in the July 13 memo).

    • Mason says:

      EW: Just keep in mind that saying a document was “prepared in anticipation of litigation” is a lawyerly way of waving a magic wand which immediately cloaks that document with the attorney work-product privilege. This privilege then prevents later discovery of that document.

      Not necessarily, because lawyers and their clients can’t use the the attorney-client privilege to conceal a crime or crimes that they are committing or planning to commit.

      For example, if the purpose of the discussion between the lawyers and the document they generated about that discussion were to conceal what they knew to be unlawful conduct and chart a course to effectively spin doctor the matter so as to maximize the possibility down the road for torturers and their agency bosses to claim plausible deniability, if accused of engaging in or approving acts of torture, the effort itself would constitute three crimes; namely, Conspiracy to Torture, Conspiracy to Conceal Torture, and Conspiracy to Obstruct Justice.

      No wonder these assholes destroyed so much evidence. They created a virtual road map of criminal conduct and destroyed it hoping to avoid prosecution.

  3. rmadelson says:

    Yeah, that July 10-17 timeline is a really “intuitive”, easy to understand narrative. You’re really putting the pieces in place. Thanks.

    • MadDog says:

      Echoing both you and Jason at # 3, I have to say that if that Obama, Holder, Durham et al. don’t have the stones fortitude to compile a prosecution case against the Bush/Cheney regime, EW certainly does.

      Brick upon brick upon brick, EW is making the Bush/Cheney regime’s defense increasingly incredulous, laughable, and finally, impossible.

  4. bmaz says:

    This is unpossible. The spooks swore during investigation of the torture tape destruction, that there was never any possibility of litigation surrounding Zubaydah’s interrogation

    • BoxTurtle says:

      Geez, yet another instance of provable perjury. Those spooks are gonna get a sternly worded letter if they’re not careful.

      Boxturtle (Well, it COULD happen)

  5. emptywheel says:

    Btw, I’ve changed the headline (bc I want the emphasis to be on the tie between the discussion and the fax, not necessarily the litigation issue, as scribe has noted)–but does it make sense this way?

    I suck at headlines.

    • MadDog says:

      LOL!

      It’s definitely an art, but temper your suckitude since the most important parts which we thoroughly appreciate are the post contents and commentary.

    • scribe says:

      What’s the “issue that arose”? What’s for lunch at CIA cafeteria?

      Don’t feel bad about being less-than-perfect at headlines. It’s a specialized skill.

      • Rayne says:

        Headlines are important if they help readers — including mainstream media — pick up and read content.

        What would help assure EW’s work gets read more widely, regardless of the headline she uses, is for readers here to tweet her work if they have a Twitter account. Just use the green Tweet button under the headline; readers can even modify the headline in the Tweet before sending.

        I know we’re not all adept at this social media stuff; it’s a learning curve for most of us. But if it helps get this valuable reporting out there to a wider audience and ensures the White House, USDOJ and Congress are getting the message, it’s worth the hassle.

        Thanks to those of you who are already helping promote EW’s work through Twitter, Facebook, Digg, Reddit, so on.

    • bmaz says:

      I am not buying this empty rhetoric from the woman who coined “Sweet Judy Blew Lies”. That game alone puts you in the Headline Hall of Fame.

  6. boltbrain says:

    Excuse please, but I don’t understand how “in contemplation of litigation” covers “a generalized issue”. Say Joe Masteroftheuniverse sets up a capital pool to go into a new business like producing cigarettes, or manufacturing a hybrid automobile, or a coal-fired power plant, or a string of payday loan outlets, or even robbing small town S&Ls; whatever. And say potential investors tell Joe M they like his track record but they’re concerned that the business might be especially exposed to litigation risks which could put their investment at risk. So Joe M goes to his lawyer with his business plan in hand and asks for an opinion on all that. Are you saying that all the lawyer needs to do is stamp “in contemplation of litigation” on the opinion and magically the opinion can never be used against the business, or Joe M, not even by the investors?

    • bmaz says:

      No, what he is saying is that it may be entitled to presumptive attorney client privilege, especially from discovery invasion; not that it can never be used.

      • scribe says:

        Right. One of the things that gets tested when a judge is called on to determine whether the work-product privilege applies is how reasonable was the contemplation of litigation, i.e., had a lawsuit actually been threatened or was the contemplation of litigation mere conjecture. The more likely a lawsuit was, the more likely the privilege will apply, provided, of course, the subject matter of the document(s) in question relate to the subject matter of the litigation in some reasonable way.

        Interestingly, when actual litigation commences, ou can’t be contemplating litigation any more, so the work-product privilege runs out of time, so to speak. Everything that was prepared before litigation can be covered, but not that stuff put together after litigation begins.

  7. JohnLopresti says:

    Textually speaking, *between*, and *among*, often are employed interchangeably in modern parlance; as in [between The Co attorneys, maybe several, maybe two].

    Also, I could imagine a dossier with photos of the brick factory outcome. I looked in Radack*s excerpt at the Canary site, finding little textually similar except bondage and induced hypothermia. I think it was the FBIIG report that described Afghanistan detainments near battlefield as being in a cold climate. Korea was pretty cold when there was an actual UN police action creating casualties there, long ago. So, *battlefield* as terminology, my OT.

    On the titles text critique, their vividness is pretty unique. In a wearisome thread the other day I searchengined for *snub pope*; an old tnh blog appeared. Google is priority algorithming some of those tnh articles, evidently.

  8. WilliamOckham says:

    So, were the Bybee memos a response to Ali Soufan? Seriously. I think it’s pretty clear that Cheney/Mitchell-Jessen were perfectly happy experimenting on AZ without any golden shield. Then, something happens in May or June that sends them into a panic. Somebody in the CIA (probably someone who’s been through the ringer before and realizes that Addington isn’t exactly in the legal mainstream) wants something in writing that says this stuff is legal. The CIA isn’t about to admit all the stuff that Mitchell-Jessen has done that Soufan doesn’t know about, so they pretend that haven’t started the torture experiments. Chertoff won’t buy off on advance declinations, so they need the OLC golden shield.

  9. Hmmm says:

    Quelle find, EW. You go.

    OT — Para 3 sentence 2, “…before after after…” looks like it meant to say “…before and after…”.

  10. MadDog says:

    OT – Another chuckle from me, and I suppose EW and bmaz – via Scott Horton over at Harper’s:

    Disappearing Act

    On Monday, in a post entitled “Inside the Salt Pit,” I noted that the identity of the CIA agent who managed the Salt Pit at the time of Gul Rahman’s death in 2003 was, perhaps inadvertently, disclosed in filings submitted on behalf of Judge Jay Bybee to the Justice Department, which were posted at the Judiciary Committee’s website. As Jane Mayer notes at the New Yorker, the page with the disclosure has now been modified and the name redacted. This vanishing act achieves very little in fact, since the page exists in thousands of copies. But it does suggest the Agency’s zeal in “disappearing” unpleasant facts…

  11. klynn says:

    I know the ICRC spent all of June 2002 at Guantanamo and gave a report to the White House and the military in July 2002. I cannot locate the date the report was delivered. However, a great deal of work was done to reject the noted torture ICRC reported. Could this have played ant part in this timeline?

    • MadDog says:

      The ICRC Torture Report per Daphne Evitar back last year:

      …was delivered to the U.S. government in February 2007…

      However, with another bit of Googling, this might be what you were referring to which is actually in the report itself (41 page PDF) on page 4 and then Footnote 6 on page 38:

      …The ICRC made its first written interventions to the US authorities in 2002, requesting information on the whereabouts of persons allegedly held under US authority in the context of the fight against terrorism. Since then, it has made regular written and oral interventions to the US authorities on the issue of undisclosed detention (see Annex 2). In particular, the ICRC transmitted two reports on undisclosed detention on 18 November 2004 and 18 April 2006 respectively which consolidated the information previously transmitted2 and included more recent allegations of undisclosed locations, hidden detainees and third country detention. Both reports annexed a non-exhaustive nominal list of persons allegedly held in undisclosed detention by the US authorities…

      …Prior to this public announcement, the ICRC had never been informed by the US authorities of the existence of the CIA detention program, nor of the presence in US custody of the fourteen. This is despite the fact that thirteen of the fourteen had been included in the abovementioned ICRC written requests to the US authorities concerning undisclosed detention, the first of which were made in January 2003(6)…

      …6. For four of these detainees, the first written request was made in January 2003; for nine detainees the first request was in 2004 (two in March, six in July 2004 and one in November 2004); and for one detainee the first request was made in November 2005

      (My Bold)

      • bobschacht says:

        Good catch! The ICRC generally does not publish its findings in detail, but submits a detailed report back to the governing authority. Other than pushback from JAGs and the few honest souls left in the administration, the ICRC is one of the few well-informed outside voices that were pushing back against White House and DOD war crimes, so it is likely that some people in the administration would sit up and take notice.

        Thanks,
        Bob in AZ

      • klynn says:

        Thanks MD. I knew a full report was turned over then but I have read in a few reports that a report/written intervention was given over in July 2002. ICRC does look at each captive as an individual case for review as opposed to all held as prisoners of war. This is where I think my confusion may be happening. I am trying to find the reference, but I did read that after the ICRC month long stay at Guantanamo Bay in June 2002 something was delivered to Washington in July.

        From the ICRC Procedures For Visits To Guantanamo Bay:

        Procedures

        To ensure that its analysis is as complete and unbiased as possible, the ICRC follows a set of rules when visiting detainees, regardless of the circumstances.

        ICRC detention visits are usually carried out by a team of specialised delegates as well as interpreters and medical personnel when appropriate. The organisation follows the same standard working procedures wherever it visits detainees. These include:

        * ICRC delegates must be able to speak in total privacy with each and every detainee held; delegates inspect all cells and other facilities.
        * Visits are carried out at a frequency of the ICRC’s choice and for as long as people are held in detention.
        * All detainees have the opportunity to write to their families using the Red Cross message system and to receive Red Cross messages from their next of kin.
        * Delegates conduct confidential discussions with the camp authorities before and after each visit to raise concerns and make recommendations where appropriate.
        * The ICRC individually registers the identities of detainees falling within its area of concern. This makes it possible to monitor the situation of each detainee throughout his or her period in detention.

        (my bold)

        It was my understanding after the June 2002 month long stay, a pretty strongly word discussion happened with written documentation that was also shared with Washington.

        Just curious. It could be something like this or something ICRC observed during their month long stay that could have set the many concerns in motion.

        • MadDog says:

          Yeah, after much Googling, like you, I couldn’t find the 2002 dates either. A number of the public sources mention that “an” ICRC report was rejected in July 2002 by the Bush/Cheney regime, but I could find no sign of that report in my searches either.

          • klynn says:

            And this old MacClatchy story gives some good information about the ICRC’s knowledge about detainees being kept from them early in 2002 and it became clear after their month long stay and was discussed in October 2002.

            The U.S. military hid the locations of suspected terrorist detainees and concealed harsh treatment to avoid the scrutiny of the International Committee of the Red Cross, according to documents that a Senate committee released Tuesday.

            (snip)

            An official in Haynes’ office sought information about SERE as early as July 2002, the documents show. Two months later, a delegation from Guantanamo attended SERE training at Fort Bragg, N.C. Levin said, “The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality and authorized their use against detainees.” The documents confirm that a delegation of senior administration lawyers visited Guantanamo in September 2002 for briefings on intelligence-gathering there. The delegation included David Addington, a top aide to Vice President Dick Cheney; Haynes; acting CIA counsel John Rizzo; and Michael Chertoff, then the head of the Justice Department’s Criminal Division and now the homeland security secretary. Few of the Republicans at Tuesday’s hearing defended the Bush administration’s detainee programs. Guidance provided by administration lawyers “will go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation’s military intelligence communities,” said Sen. Lindsey Graham, R-S.C..

        • Jeff Kaye says:

          RE ICRC and Guantanamo in 2002, let us not forget the exchange in the minutes in this Oct. 2, 2002 meeting at Guantanamo. I fully transcribed the minutes here. In the following excerpt, Fredman is John Fredman, then chief counsel to the CIA’s counter-terrorism center; Beaver is Lt. Col. Diane Beaver, the Staff Judge Advocate at Guantanamo; Dave Becker, representing the Defense Intelligence Agency; Cummings is Col. Cummings, who has not otherwise been identifiable. — Notice the intent to hide prisoners from the ICRC.

          LTC Beaver: We may need to curb the harsher operations while ICRC [International Committee of the Red Cross — added by transcriber] is around. It is better not to expose them to any controversial techniques. We must have the support of the DOD.

          Becker: We have had many reports from Bagram about sleep deprivation being used.

          LTC Beaver: True, but officially it is not happening. It is not being reported officially. The ICRC is a serious concern. They will be in and out, scrutinizing our operations, unless they are displeased and decide to protest and leave. This would draw a lot of negative attention.

          COL Cummings:
          The new PSYOP plan has been passed up the chain

          LTC Beaver: It’s at J3 at SOUTHCOM.

          Fredman: The DOJ has provided much guidance on this issue. The CIA is not held to the same rules as the military. In the past when the ICRC has made a big deal about certain detainees, the DOD has “moved” them away from the attention of the ICRC. Upon questioning from the ICRC about their whereabouts, the DOD’s response has repeatedly been that the detainee merited no status under the Geneva Convention. The CIA has employed aggressive techniques on less than a handful of suspects since 9/11.

          Of course, despite this obvious crime and the conspiracy for it, nothing has ever been done about it.

          • klynn says:

            detainee merited no status under Geneva Convention…

            I wonder, due to the month long ICRC stay in June of 2002, how close ICRC was at nailing the Camp No back in July of 2002?

    • whitewidow says:

      Check out the second comment at Mayer’s story. A person claiming to be Rahman’s nephew is asking for help getting the body back.

      Reading that was like a punch to the gut. I still can’t fathom what this country has become.

  12. 1boringoldman says:

    Actually, the thing that happened was on June 14th or 15th.

    Assumption 1:
    A “four page cable from the field to CIA Headquarters,” dated April 11, 2002, containing “information relating to the CIA’s terrorist detention and interrogation program” (note, this was the day Yoo officially started on the Bybee Memo). Piecing through Soufan’s various comments, this is about when the CIA took over. So I reckon the four pages were authorizations etc. Yoo was given a heads up to start preparing a CYA Memo.

    Assumption 2:
    The CIA guys began numbering their daily sessions on the day they took over.

    Assumption 3:
    Session 63 would have been on June 14th or 15th, depending on when they started numbering. That day they tried a little “hard/confrontational dislocation of expectation” [AKA Torture] and got something out of Zubaydah

    Assumption 4:
    Excited by their success, they got on the stick and whipped up a quick psychological evaluation and a list of interrogation techniquesA “1-page of handwritten notes dated July 24, 2002 from a CIA officer describing proposed interrogation techniques that could be considered for use on detainees.” And got them sent out by June 24th

    Assumption 5:
    The CIA Attorneys get wind of all the activity and get scared, leading to the exchanges that lead up to Yoo’s July 13th CYA FAX.

    Conclusion: Wild arsed speculation is infectious among EW’s blog readers…

    Accompanying Graphic is here.

      • burnt says:

        Wow, 1boringoldman has the correct timeline idea but it ain’t going to work for the longer timelines. I was going through EW’s Torture Timeline this morning and if it had the 1boringoldman treatment it would work better but what would be required is some sort of side-scrolling flash thing. A giant static graphic ain’t going to cut it but 1boringoldman is onto something.

        So, any Flash folks lurking out there?

    • emptywheel says:

      I think the June date is actually really good. It’d also mean that Steven Gaudin, the second FBI agent, may have still been present.

      The psych eval was drafted much later, as we know it was still being tweaked on July 24.

      But if your June timeframe is right (and it’d be consistent with the obvious turbulence in the cables from the field), I think the issue of concern on July 10 might have been DOJ’s reactions to what they were hearing from Soufan and Gaudin.

  13. JasonLeopold says:

    Hey folks, just wanted to say that I really enjoyed the discussions here this week and wanted to also thank Marcy for her hard work, which I continue to be awed by. I really feel privileged to be a part of this community. To those who celebrate Easter, have a wonderful holiday.

  14. bobschacht says:

    Generally on topic:

    For those with a strong stomach, I got this today from Susan Harman:

    I sent this out earlier today…. It’s an as- yet-unedited evening-long series of readings of various documents about torture, interspersed with what I think I recognize as Andy Worthington’s interviews of detainees. Again, it starts at about 43 minutes into the tape and ends about an hour and a half later.
    http://www.aclu.org/national-security/reckoning-torture-washington-dc

    I am not recommending this lightly. It is horrendous. My own personal
    response is not rage, but intense sorrow and shame. What we are
    dedicated to is of utmost importance. We must persevere.

    It sounds particularly appropriate for Black Saturday, when Jesus’ pals had abandoned all hope, and were wallowing in despair. That feeling is not new in the Wheel house, but we are reminded that Holy Week, after wandering through the valley of the shadow of death, emerges triumphant on Easter morning. May it be so with respect to accountability and justice for all of the outrages enumerated in such detail on these pages.

    Bob in AZ

  15. timtimes says:

    No offense to those who think we ought to be screaming these offenses out to the general public as loud and often as possible. I think the general public is already well aware that this stuff happened.

    After all, Cheney has BRAGGED about it on TV.

    The only question is whether the Obama administration is going to invoke the rule of law that was clearly broken here. The use of lawyers to invoke torture is already outlawed by the Geneva Convention. They are just as guilty.

    Will folks who tortured the testicles of toddlers ever be brought to trial, or are they, like Catholic Priests and their never-ending abuse of children, crimes which are too big to prosecute?

    Enjoy.

  16. klynn says:

    Here’s a link to the Reuter’s article on this that states the July report was dismissed by the administration.

    Citing the confidential memorandum, The New York Times said an ICRC inspection team that spent most of June at Guantanamo Bay reported the use of psychological and sometimes physical coercion on prisoners.

    Red Cross investigators found a system devised to break the will of prisoners through “humiliating acts, solitary confinement, temperature extremes, use of forced positions.”

    “The construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture,” the Times quoted the report as saying.

    (snip)

    In Geneva, the ICRC said it would neither confirm nor deny the report, in which allegations of treatment tantamount to torture go further than what the neutral intermediary has publicly stated before about inmates held at Guantanamo.

    But, in a statement, the Geneva-based ICRC said it remained concerned that “significant problems regarding conditions and treatment at Guantanamo Bay have not yet been adequately addressed,” and it was pursuing talks with U.S. authorities.

    Authorities are now holding at the U.S. base in Cuba more than 500 people detained during the 2001 U.S. war to oust al Qaeda and the ruling Taliban from Afghanistan and in other operations in the U.S. war against terror. The ICRC began visiting in early 2002.

    The Times said the U.S. government and military officials received the ICRC report in July and rejected its findings.

    The ICRC confidentiality practice is serious for them, I know from my time with them as an intern in Geneva. They do not want to violate it because it could result in a loss of contact with the detained and a loss of dialogue with the country needing accountability.

  17. klynn says:

    An aside but related.

    MD, (bmaz and EW) you probably would appreciate reading this piece.

    This piece is written by Gabor Rona in the Summer/Fall 2003. He is the Legal Advisor for the Legal Division of the ICRC.

    My favorite quote which applies to this thread discussion:

    ” Criticism of humantarian law is also fine. Humantarian law can be frustratingly vague, although sometimes for good reason. It can appear to be internally contradictory and unduly burdensome. But some of the criticisms simply misread the law. These are relately easy to address. Other criticisms correctly state the law and, in suggesting the need for change, misconstrue the law’s purpose and function. Just as truth is the first casualty of war, logic is often a casualty in the effort to mold the laws of war, or at least their image for parochial purposes.”

    This article was a result of a speech Rona gave in January 2003. In his position at the ICRC, he spent 2002 seeing many reports about US policy and practices. I read this article in “that” context.

    Please read the final paragraph on page 69 (footnote 64). BTW, the footnotes are as good as the article.

    Rona would be a great salon guest.

  18. wavpeac says:

    Wow!! Regardless of prosecution of the war criminals…at the very least, this reporting is the most important form of validation. Prosecution would be nice…but getting the truth told…priceless.

  19. oldoilfieldhand says:

    Ladies and Gentlemen:

    In this corner wearing three thousand dollar Brooks Brothers suits with an American flag lapel pin, the undisputed no bid, heavyweight, water-boarding, wall-slamming, sleep depriving, temperature manpulating, child testicle crushing, Constitution shredding, deaf to the history of war crimes, absolutely worst criminal administration in the history of the United States: the George Bush and Richard Cheney administration!

    In the opposite (literally) corner, Esteemed, pajama wearing, Dirty Fucking Hippie blogger and the first and only person to utter the words “blow job” on a nationally televised news program, Marcy Wheeler!

    My money is on Marcy!
    Monthly!

    Thank You Marcy! You are one in a billion!

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