Jon Kyl Justifies Military Detention by Claiming CIA-Military Credit for FBI Interrogations

In the entire two week debate over the detainee provisions of the Defense Authorization, the champions of military detention offered almost no rationale for it (a pity, then, that the opponents barely explained why it’s such a bad idea), aside from Lindsey Graham repeating endlessly that detainees shouldn’t get lawyers (he never explained how this claim jived with his promise that every detainee would have access to habeas corpus).

One exception is a statement that Jon Kyl submitted to the record but did not read (the statement starts on PDF 5). After reasserting the legality of the detainee provisions under Hamdi, Kyl’s (was it Kyl’s?) statement offered an “explanation” for military detention; I’ve reproduced that part of the statement in full below the line.

Now, the statement doesn’t make any sense. It invokes what it claims were CIA interrogations and treats them as military interrogation; though in fact a number of the interrogations the statement invokes were FBI interrogations.

The statement claims detainees wouldn’t have a lawyer, though the architects of the bill have made it clear (as has SCOTUS) detainees would have access to habeas corpus and therefore (presumably) lawyers.

Perhaps not surprising, the statement also invokes two discredited pieces of propaganda: Vice Admiral Lowell Jacoby’s January 9, 2003 Declaration in opposition to granting Jose Padilla habeas corpus and George Bush’s September 6, 2006 speech announcing he was moving 14 high value detainees to Gitmo.

It relies on Jacoby’s statement to argue for the value of a “relationship of dependency,” which seems to no more than a rebranding of Bruce Jessen’s “learned helplessness.” And note, Jacoby’s statement, written six months after DOD took custody of Padilla, spoke of intelligence he might offer prospectively; it doesn’t claim to have gotten any intelligence using this “relationship of dependency.”

And it relies on Bush’s statement to claim that military or CIA interrogations exposed that KSM was Mukhtar and Jose Padilla’s plans, both of which came from Ali Soufan’s FBI interrogation of Zubaydah. It also claims the CIA interrogations yielded Ramzi bin al-Shibh’s location, whereas Soufan, at least, claims that came from an FBI interrogation in Bagram. And it claims CIA’s interrogation of KSM revealed the Liberty Towers plot that had been broken up a year earlier. In other words, Kyl’s argument for why we need military detention consists of repeating discredited propaganda claiming CIA credit for interrogations largely conducted by the FBI. The same FBI officers who will lose their ability to interrogate detainees if and when this bill goes into place.

In short, one of the most comprehensive arguments for why we need military detention instead makes the case for retaining FBI primacy. At the same time, it appears to endorse the “learned helplessness” that ended up making delaying any value to KSM and other detainee interrogations.

Even the champions of military detention offer proof that we’re safer with civilian detention.

What follows is the statement Kyl submitted to the record.

Wahy Military Detention Is Necessary: To Allow Intelligence Gathering That Will Prevent Future Terrorist Attacks Against the American People

Some may ask, why does it matter whether a person who has joined Al Qaeda is held in military custody or is placed in the civilian court system? One critical reason is intelligence gathering. A terrorist operative held in military custody can be effectively interrogated. In the civilian system, however, that same terrorist would be given a lawyer, and the first thing that lawyer will tell his client is, “don’t say anything. We can fight this.”

In military custody, by contrast, not only are there no lawyers for terrorists. The indefinite nature of the detention–it can last as long as the war continues–itself creates conditions that allow effective interrogation. It creates the relationship of dependency and trust that experienced interrogators have made clear is critical to persuading terrorist detainees to talk.

Navy Vice-Admiral Lowell Jacoby, who at the time was the Director of the Defense Intelligence Agency, explained how military custody is critical to effective interrogation in a declaration that he submitted in the Padilla litigation. He emphasized that successful noncoercive interrogation takes time–and it requires keeping the detainee away from lawyers.

Vice-Admiral Jacoby stated:

DIA’s approach to interrogation is largely dependent upon creating an atmosphere of dependency and trust between the subject and the interrogator. Developing the kind of relationship of trust and dependency necessary for effective interrogations is a process that can take a significant amount of time. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or, even years, after the interrogation process began.

Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence gathering tool. Even seemingly minor interruptions can have profound psychological impacts on the delicate subject/interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example–even if only for a limited duration or for a specific purpose–can undo months of work and may permanently shut down the interrogation process.

Specifically with regard to Jose Padilla, Vice Admiral Jacoby also noted in his Declaration that: “Providing [Padilla] access to counsel now would create expectations by Padilla that his ultimate release may be obtained through an adversarial civil litigation process. This would break–probably irreparably–the sense of dependency and trust that the interrogators are attempting to create.”

In other words, military custody is critical to successful interrogation. Once a terrorist detainee is transferred to the civilian court system, the conditions for successful interrogation are destroyed.

Preventing the detention of U.S. citizens who collaborate with Al Qaeda would be a historic abandonment of the law of war. And, by preventing effective interrogation of these collaborators, it would likely have severe consequences for our ability to prevent future terrorist attacks against the American people.

We know from cold, hard experience that successful interrogation is critical to uncovering information that will prevent future attacks against civilians.

On September 6 of 2006, when President Bush announced the transfer of 14 high-value terrorism detainees to Guantanamo, he also described information that the United States had obtained by interrogating these detainees. Abu Zubaydah was captured by U.S. forces several months after the September 11 attacks. Under interrogation, he revealed that Khalid Sheikh Mohammed was the principal organizer of the September 11 attacks. This is information that the United States did not already know–and that we only obtained through the successful military interrogation of Zubaydah.

Zubaydah also described a terrorist attack that Al Qaida operatives were planning to launch inside this country–an attack of which the United States had no previous knowledge. Zubaydah described the operatives involved in this attack and where they were located. This information allowed the United States to capture these operatives–one while he was traveling to the United States.

Again, just imagine what might have happened if the Feinstein amendment had already been law, and if the Congress had stripped away the executive branch’s ability to hold Al Qaeda collaborators in military custody and interrogate them. We simply would not learn what that detainee knows–including any knowledge that he may have of planned future terrorist attacks.

Under military interrogation, Abu Zubaydah also revealed the identity of another September 11 plotter, Ramzi bin al Shibh, and provided information that led to his capture. U.S. forces then interrogated bin al Shibh. Information that both he and Zubaydah provided helped lead to the capture of Khalid Sheikh Mohammed.

Under interrogation, Khalid Sheikh Mohammed provided information that helped stop another planned terrorist attack on the United States. K.S.M. also provided information that led to the capture of a terrorist named Zubair. And K.S.M.’s interrogation also led to the identification and capture of an entire 17-member Jemaah Islamiya terrorist cell in Southeast Asia.

Information obtained from interrogation of terrorists detained by the United States also helped to stop a planned truck-bomb attack on U.S. troops in Djibouti. Interrogation helped stop a planned car-bomb attack on the U.S. embassy in Pakistan. And it helped stop a plot to hijack passengers planes and crash them into Heathrow airport in London.

As President Bush stated in his September 6, 2006 remarks, “[i]nformation from terrorists in CIA custody has played a role in the capture or questioning of nearly every senior al Qaida member or associate detained by the U.S. and its allies.” The President concluded by noting that Al Qaida members subjected to interrogation by U.S. forces: “have painted a picture of al Qaeda’s structure and financing, and communications and logistics. They identified al Qaeda’s travel routes and safe havens, and explained how al Qaeda’s senior leadership communicates with its operatives in places like Iraq. They provided information that ….. has allowed us to make sense of documents and computer records that we have seized in terrorist raids. They’ve identified voices in recordings of intercepted calls, and helped us understand the meaning of potentially critical terrorist communications.

[Were it not for information obtained through interrogation], our intelligence community believes that al Qaeda and its allies would have succeeded in launching another attack against the American homeland. By giving us information about terrorist plans we could not get anywhere else, this [interrogation] program has saved innocent lives.”

If the Feinstein amendment were adopted, this is all information that we would be unable to obtain if the Al Qaeda collaborator that our forces had captured was a U.S. citizen. It would simply be impossible to effectively interrogate that Al Qaeda collaborator–the relationship of trust and dependency that military custody creates would be broken, and the detainee would instead have a lawyer telling him to be quiet. And we know that information obtained by interrogating Al Qaeda detainees has been by far the most valuable source of information for preventing future terrorist attacks.

Again, in every past war, our forces have had the ability to capture, detain, and interrogate U.S. citizens who collaborate with the enemy or join forces with the enemy. I would submit that in this war, intelligence gathering is more critical than ever. Al Qaeda doesn’t hold territory that we can capture. It operates completely outside the rules of war, and directly targets innocent civilians. Our only effective weapon against Al Qaeda is intelligence gathering. And the Feinstein amendment threatens to take away that weapon–to take away our best defense for preventing future terrorist attacks against the American people. [my emphasis]

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.

24 replies
  1. rugger9 says:

    All for looking like a tough guy since he’s a chicken hawk too. Too bad he’s thinking it wouldn’t be used against him, but is he really willing to bet on that?

    1993 WTC bombing, all convicted, cell wiped out, Clinton runs them off.

    2001 WTC, Shrub ignores Clinton’s instructions [Condi had a missile defense speech scheduled for the 12th as the biggest issue], ignores the PDB of 8/6 [“you’ve covered your ass, now”], and numerous warnings that something was up from the field, bungled the response [and let OBL’s relatives leave the USA un-interrogated 9/12 when nothing else was flying], and pissed away the good will of the world on the Iraq war built on lies.

    Why anyone believes these maroons on anything boggles me, except that the corporate media wills it and provides the air time to “catapult the propaganda”. There’s a reason Fox is banned [so far] in Canada, it’s because they lie and the Canadians know it.

  2. rugger9 says:

    Note also that Clinton used the civilian jury trial system, and Shrub let something like 80% of the GTMO detainees go [Rummy said they were the “worst of the worst”] with no tracking after we radicalized them at GTMO, and by Abu Ghraib and Bagram [that we know about]. That’s why the comparison is apt.

  3. lysias says:

    I believe I remember reading about Ramzi bin al Shibh in a series of articles about Al Qaeda and the Hamburg cell that appeared in Der Spiegel in the weeks immediately following 9/11.

  4. Mary says:

    Interesting how far they all stay from al – libi. So sounds as if kyl is wanting, in addition to military detention, a secret intel service detention as well.

    I sure would like to hear Graham asked if, given his references to habeas, he believes that the US courts can order the release of someone in US military detention over the countermand of the CIC. You’d think it inherent in his claims of habeas access, but in truth it flies in the face of a lot of what I seem to remember him saying during the alito nomination.

    Kyl also seems to neglect that Obama seems to have gotten some of his info to support his Yemen assassination projects from non-military detentions and questioning, which appears to fly in the face of his conclusions that “only” military detention and questioning can get you the vital info about bucket swinging that is needed to save the nation

  5. emptywheel says:

    @Mary: Pretty sure Rand Paul got a Sessions Amendment saying they couldn’t voted down by insisting on a voice vote.

    I hate to say it, but Paul was the best person on this stuff.

  6. Mary says:

    Btw, I’ve always thought the Jacoby declaration was one of the creepiest things I’ve seen. Keep in mind what it tells the court. No interrogation can be successful until the mind of the person being interrogated has been broken to the point of complete and total,slave like dependency on the interrogator as God. And that any American citizen the Executuve branch thinks “might” have intel it wants can be subjected to having their mind and soul killed off to achieve that dependency, whether it was ultimately useful or not. And that the exec branch has to be given enough time, impliedly even years, to achieve that deconstruction of the mind, before the interrogation process is complete and that habeas is irrelevant until the interrogation process is complete.

    Prop up Hayden to read that piece of horror out loud while Ashcroft sings his eagle song while looking through pictures of mutilated genitalia from his interrogation detainees and Obama sits by, watching with fingers steepled and a news feed over his shoulder pipes in video from drones killing American 16 yos, and you have the newest circle in hell.

  7. ANOther says:

    @rugger9: Fox News is not banned in Canada. If we were to ban all liars, that would would include the Harper government, who are quite adept at it.

  8. Mary says:

    Paul has been one of the best in this and surveillance, but what was the amendment? One that flat said that the courts could not order a release? A kind of selective revocation of habeas?


    Btw, I wonder if kyl wants to expand on the Ramzi BAS interrogations with some info on ksm’s disappeared wife and children? Or maybe give a shout out to the Pakistani isi who helped with his capture ;)

  9. GKJames says:

    Leaving aside the fact that the DNA of the Kyls and Grahams is short a few strands when it comes to justice, the intel gathering argument as rationale for denying due process is lame because it’s contradicted by the experience with domestic law enforcement, whose adherence (mostly) to rules of criminal procedure doesn’t get in the way of robust conviction rates. And the idea that the knuckleheads that end up in our grasp will likely have something of value to offer after, say, a month is a stretch.

    I’d also ask how vital the intel argument really is when the guys who assert it are the same ones who soil their shorts whenever we drone someone, especially the allegedly “high-value” ones.

  10. jo6pac says:

    And the Feinstein amendment threatens to take away that weapon–to take away our best defense for preventing future terrorist attacks against the American people. [my emphasis]

    This is the problem, people think they care about the citizens of this nation or any nation for the matter. I’m sure none of these bills are for catching the bad guys but to scare good people into submission. This bill will be rewritten to the liking of 0 doj then we all are screwed. I think I need new foil for my hat.

    Thanks for the info, I think;)

  11. rugger9 says:

    They can’t call it “news”. Although I’m sure Harper has fixed it.

    Here are the relevant links:

    As America’s middle class battles for its survival on the Wisconsin barricades — against various Koch Oil surrogates and the corporate toadies at Fox News — fans of enlightenment, democracy and justice can take comfort from a significant victory north of Wisconsin border. Fox News will not be moving into Canada after all! The reason: Canada regulators announced last week they would reject efforts by Canada’s right wing Prime Minister, Stephen Harper, to repeal a law that forbids lying on broadcast news.

    Canada’s Radio Act requires that “a licenser may not broadcast….any false or misleading news.” The provision has kept Fox News and right wing talk radio out of Canada and helped make Canada a model for liberal democracy and freedom. As a result of that law, Canadians enjoy high quality news coverage including the kind of foreign affairs and investigative journalism that flourished in this country before Ronald Reagan abolished the “Fairness Doctrine” in 1987. Political dialogue in Canada is marked by civility, modesty, honesty, collegiality, and idealism that have pretty much disappeared on the U.S. airwaves. When Stephen Harper moved to abolish anti-lying provision of the Radio Act, Canadians rose up to oppose him fearing that their tradition of honest non partisan news would be replaced by the toxic, overtly partisan, biased and dishonest news coverage familiar to American citizens who listen to Fox News and talk radio. Harper’s proposal was timed to facilitate the launch of a new right wing network, “Sun TV News” which Canadians call “Fox News North.”

    Also covered first on HuffPost by RFK, Jr.

    I stand by my story, ANOther.

  12. rugger9 says:

    I can see where ANOther is confused: here’s Wkipedia on the subject:


    In 2003, the Canadian Radio-television and Telecommunications Commission (CRTC) rejected a Canadian Cable Telecommunications Association (CCTA) application to bring Fox News to Canada because Fox News U.S. and Global Television were planning to create Fox News Canada, a combination of U.S. and Canadian news. However in 2004, after a Fox U.S. executive said there were no plans to create the combined channel, the CRTC approved an application to bring Fox News to Canada.[79]
    Fox News Channel is currently offered by Access Communications, Bell TV, Cogeco, Eastlink, Manitoba Telecom Services, Rogers, SaskTel, Shaw Cable, Shaw Direct and Telus TV. A notable exception is Vidéotron, Canada’s third largest cable company, which has not added Fox News Channel to its lineup.

    Now, I severely doubt that the Fox News that is operated in Canada is the same, or declared as "news" since that would indeed run foul of the Radio Act, and FWIW Harper wouldn't need to fix anything in 2011 if that Canadian Fox News were indeed the Faux News we know too well…

    Fair and balanced as much as I can…

  13. ANOther says:

    @rugger9: Well I guess I’m still confused. Here I am in Canada watching Fox News on a Canadian satellite provider – how is Fox News banned in Canada? Incidentally, does rugger9 mean that you were a scrum-half?

  14. Bustednuckles says:

    Padilla was rendered completely bug fucking insane by this treatment.

    Then rail roaded into federal prison.

    Kyl needs a good dose of that.

  15. Bob Schacht says:

    Thanks, EW. I just sent this message to Sen. Kyl:

    Dear Senator Kyl,

    I am extremely disappointed in your support for the provision, “Wahy Military Detention Is Necessary: To Allow Intelligence Gathering That Will Prevent Future Terrorist Attacks Against the American People.”

    As Ben Franklin wrote, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

    The people called “terrorists” in this provision have not been convicted of terrorism by any court. They have the misfortune to have been alleged to be a terrorist by someone somewhere. It is absolutely against American ideals to keep these people– or anyone! –in detention indefinitely without any due process. What kind of country are we becoming? This provision sounds more like something dreamed up in Stalin’s Russia than America.

    Please remove this dastardly provision from the bill. It will not make us any safer.

  16. rugger9 says:

    @jo6pac: # 16
    I saw that too, and I have to wonder if Clear Channel is doing its part to control the message going into the election.

    As of today, the formatting hasn’t handed over yet, but the new beckistan will go head to head vs. KSFO in the same area, also a Clear Channel station. So, why would they double down on this format if they don’t need to?

  17. rugger9 says:

    @ANOther: #17
    That is confirming Wikipedia, so why would Harper want to bring in Sun if Fox in its gory [intended] is already fully operational in Canada? Why waste the kerfuffle at the end of February if the illegality isn’t really a problem? A question worth asking since I don’t remember seeing anything about it since March.

    And, yes I did play scrum half at Cal, ’82-’84, and for another dozen years at club level.

  18. JThomason says:

    Well at least these forces are moving away from any notion of rehabilitation in chiseling away at the Constitution and make it clearly known that their principle interest is submission not process.

    There has been something sticking in my craw for several months now with regard to the culture indoctrination that the miliatry is providing US troops in Afghanistan that was reported here. It was around the cultural treatment of the notion of ” equality.” The saw advanced in the indoctrination was something like “though all are created equal, the uneqaulity that emerges in society because of merit is an American value.” But that’s not really the traditional notion of equality is it? Traditionally the emergent notion since the Civil War is that all men have equal protection under the law. The culture of submission of course would require more law for some than for others. If we treate legislation as valid substantive evidence of the imposition of a repressive politcal order we here in the US are in significant trouble.

  19. rugger9 says:

    Slightly OT, but tied to the Clear Channel switch [still Green 960 as of today]:

    One of my suspicions is that the campaign as it is now on the GOP side is kabuki intended to go into the convention with no winner, in which case the dark horse would have limited time for the public to look at its teeth, so to speak. Someone like Petraeus or Jeb, or even Christie who all have baggage, but the baggage won’t be well known. The ground game would be done by AFP, Crossroads, Tea Party, or even the AmericaSelect astroturf group designed to siphon off otherwise-D votes, and the airwaves would be bought up or [as in this case] bought off. That would ensure any opposition research would never be discussed.

    Thanks, Silly Billy.

  20. thatvisionthing says:

    Is this of possible interest? Craig Murray in the UK has been big lately on Fox, Werrity and Gould drumming up war on Iran. Kyl’s name, as Honorary US Chairman of Fox’s Atlantic Bridge “charity” in 2009, showed up in a comment in blog post Atlantic Bridge Domain:

    Brian Moylan
    19 Oct, 2011 – 8:12 pm

    The web site is still there, just has *no content* displayed.

    The old who we are page in September 2009 had:


    Dr Liam Fox MP – UK Chairman
    Lord Astor of Hever DL – Trustee
    Michael Gove MP
    Chris Grayling MP
    The Rt Hon. William Hague MP
    Eleanor Laing MP
    George Osborne MP
    John Whittingdale OBE MP

    Senator Jon Kyl (R-Arizona) – Honorary US Chairman
    Congressman John Campbell (R-California)
    Senator Jim DeMint (R-South Carolina)
    Senator Lindsey Graham (R-South Carolina)
    Senator Joe Lieberman (ID-Connecticut)
    Senator Mel Martinez (R-Florida)
    Congressman Adam Putnam (R-Florida)

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