Torture

Where Are They Now? Dozens of Prisoners Unaccounted For With Closure of US Bagram Prison

Both NBC and Reuters are reporting that the US has closed its prison at the Bagram air base that was used to house non-Afghan prisoners. After many fits and starts, the US had ceded control of (mostly?) all Afghan prisoners to Afghanistan last year. As far as I can tell, the last time we had an accounting of the foreign prisoners held at Bagram was in February, when the number sat at 49, although Adam Goldman noted that the US was busy trying to reduce that number.

There was a report of two Yemenis being transferred out of the facility back in August and Russian prisoner Irek Ilgiz Hamidullin was brought to the US for trial in November, but even as recently as earlier this week, when Latif Mehsud and two of his guards were repatriated to Pakistan, Dawn still reported that conventional wisdom put the number of foreign prisoners held at Bagram in the dozens. The Dawn report relayed a statement from the US embassy that the population was being reduced:

The US Embassy in Kabul said the three prisoners had been held at a detention centre near Bagram airfield.

The facility is believed to house several dozen foreign prisoners who the United States will no longer be allowed to keep in Afghanistan when the mission for the US-led force there ends later this month.

“We’re actually just going through and returning all the third-country nationals detained in Afghanistan to resolve that issue,” a US embassy spokeswoman said.

Note especially that the spokeswoman said “all the third-country nationals”. That stands out because Hamidullin was not the only prisoner held at Bagram who was expected to be brought to trial. Goldman’s report in February said that the “number of people being looked at for prosecution is in the single digits”. Are more of these prisoners already being held in the US in preparation for the filing of charges? Are they held elsewhere? Or were they repatriated instead?

But there were also some prisoners who can’t be tried but are still deemed “too dangerous to release”:

And bringing some of them to the United States for trial in a military commission, an option being considered by the Obama administration, could run into political opposition or may be stymied by a lack of court-ready evidence.

What happened to the prisoners whom the US deemed too dangerous to release but who lacked “court-ready evidence”?

The US prison at Bagram and Defense Department operated prisons throughout both Afghanistan and Iraq have a long, checkered history of lies and misdirection about facilities and their population. Further, this facility at Bagram has been used to house prisoners who were tortured. It seems likely that most of the 49 foreign prisoners known to be there in February have been repatriated without public announcements, but what about those who had been slated for indefinite detention? We now have a number of prisoners who were deemed dangerous and have disappeared in the last several months. Will their status ever be clarified? Will we be forced to concoct more crazy theories on where they went?

Update: It should be noted that both of the stories linked at the beginning of this post state that the last two prisoners transferred out of the US facility at Bagram were handed over to Afghan authorities. This represents a huge change in policy for Afghanistan. Under Hamid Karzai, Afghanistan was adamant that no foreign prisoners would be held in Afghan jails. With this move, it is clear that Ashraf Ghani has changed the policy. So perhaps Afghan prisons are where we will find all of the prisoners the US had slated for indefinite detention without charges?

The Advance Declination Letter and the White House Meetings

John Sifton has a piece at JustSecurity on a key new detail in the torture report: a description of a letter the CIA lawyers were sending around discussing getting an advance declination (though unless I’m misreading the report, this email chain is dated July 8, not April).

But perhaps the most important revelation in the report is not about the torture itself but rather about the legal culpability of the CIA. The report contains a key passage on page 33 revealing that senior lawyers at the CIA in mid 2002, at the very beginning of the CIA’s program, drafted a letter to the Attorney General in which it is expressly acknowledged that the interrogation tactics that came to be known as “enhanced interrogation techniques” violated the US torture statute. The draft letter requested that the Attorney General provide the CIA with “a formal declination of prosecution, in advance”—basically, a promise not to prosecute, or immunity. The document was shared even with CIA interrogators involved in the nascent program. From the beginning, in other words, key CIA officials were well aware that these techniques were clearly unlawful.

While the date is off slightly, that appears to be the email chain I pointed to in this post, which was described as — and may be — “an issue that arose.” (Remember that CIA had already exceeded the guidelines they’d been given on sleep deprivation.)

That least to the timeline laid out in this post (though the post was wrong about ongoing torture — Abu Zubaydah was being held in isolation at that point).

As I pointed out in an earlier post, when Counterterrorism Center lawyer Jonathan Fredman sent the torturers in Thailand a green light for torture in August 2002, he relied on language about intent from a July 13, 2002 fax from John Yoo to John Rizzo rather than the finalized August 1 Bybee Memo. In a second post on this, I also showed that both of Yoo’s nominal supervisors–Jay Bybee and John Ashcroft–claim they knew nothing about that fax. In this post, I’m going to show how that fax appears to arise out of DOJ discomfort with CIA’s torture program.

As the timeline below shows, Yoo dated (but did not send) the fax the same day that the numerous parties involved in reviewing the Bybee Memo had an apparently contentious meeting at which they discussed the draft memo as well as the CIA’s torture plan (I’m doing a big update on the Torture Timeline, so some of this is not reflected in the timeline yet).

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 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.

[snip]

What seems to have happened is the following. Yoo and Koester were all set for an NSC meeting on July 12, perhaps until they had a July 11 briefing with Chertoff. In any case, something made them reschedule that NSC meeting to arrange an Alberto Gonzales (and presumably, Addington) meeting first. After which they appear to have had an incredibly contentious meeting with Bellinger, Chertoff, Levin and others. Perhaps the fact that John Rizzo presented the latest interrogation plan (which, we suspect, was already in process anyway) made things worse. We do know, for example, that mock burial remained in the plan, even after Soufan had balked when Mitchell tried to use it two months earlier. Whether because of Rizzo’s presentation or Yoo’s draft memo, at the meeting Chertoff definitively refused an advance declination and Levin announced that FBI would have nothing more to do with CIA’s torture program.

And so Rizzo, perhaps noting that the head of DOJ’s Criminal Division and the FBI Chief of Staff were reacting rather unfavorably to CIA’s torture plan, asked Yoo for some kind of cover. In response, Yoo wrote a memo raising the bar for prosecution of inflicting severe mental suffering incredibly high.

What I find particularly interesting is the 2-day delay before Yoo sent the fax, dated July 13, to Rizzo on July 15. That likely coincided with another delay; we know Chertoff asked Yoo to send Rizzo a letter refusing advance declination sometime between July 13 and July 16, but Yoo didn’t act on that request until he had sent Rizzo his July 13 fax already.

Did Yoo get both the request for the letter refusing advance declination and the request for the letter laying out the torture statute at the same contentious meeting?

And then there’s one more unexplainable coincidence. On the same day Yoo sent the July 13 memo (on July 15), Yoo instructed Koester they not only wouldn’t include any affirmative defenses in the memo, but they would claim they weren’t asked for such things. Yet that happened just a day before heading into a meeting with Gonzales and (almost certainly) Addington, at which they did decide to include such things. And incidentally–a fact I hadn’t noted before–Yoo gave Gonzales and (almost certainly) Addington a copy of his July 13 fax at the same meeting where it was decided to add affirmative defenses to the Bybee Memo.

I can’t prove it. But it appears that Yoo wrote the July 13 fax in response to serious reservations from Chertoff and Levin. And in response to that, Addington directed him to add a bunch more defenses (literal and figurative) into the Bybee Memo.

One last point. As I said, one key difference between the July 13 fax and the Bybee Memo is that Yoo rebutted an obvious objection to his reading of how the Torture Statute treated intent with severe mental suffering.

It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute.

Any bets on whether Chertoff and/or Levin made precisely this argument at that July 13 meeting?

That language — about whether a defendant specifically intended to threaten a victim with imminent death — was reportedly what Jonathan Fredman used to exonerate the people who killed Gul Rahman.

One thing is critically important about this: this is precisely the period when Alberto Gonzales and David Addington were closely involved with the torture report. All this pre-exoneration for crimes came from the White House.

UN Official: Prosecute “Systematic Crimes and Gross Violations of International Human Rights Law”

Ben Emmerson, UN Special Rapporteur for counterterrorism and human rights. (UN photo)

Ben Emmerson, UN Special Rapporteur for counterterrorism and human rights. (UN photo)


Ben Emmerson is the UN’s Special Rapporteur on counterterrorism and human rights. His statement released yesterday in response to the SSCI torture report points out the clear responsibilities that the US has under the Convention Against Torture and other international human rights laws to prosecute not only those who carried out torture, but those who designed the torture program and gave orders for its implementation.

Emmerson opens by noting the delay in release of the report’s summary:

I welcome the belated publication of the summary report by the United States Senate Select Committee on Intelligence into the crimes of torture and enforced disappearance of terrorist suspects by the Bush-era CIA. It has taken four years since the report was finalised to reach this point. The Administration is to be commended for resisting domestic pressure to suppress these important findings.

In my 2013 report* to the Human Rights Council as SpeciaI Rapporteur, I called on the US Government to release the report without further delay, and to ensure that it was published in full, without excessive and unnecessary redactions.

It seems a bit strange to me that Emmerson would commend the “administration” for “resisting domestic pressure to suppress these important findings”. We can only presume that “administration” refers to the Obama administration. It has been clear that in many instances of the struggle by the SSCI to release the report, the Obama administration has come down more on the side of the CIA than the committee. Only if the committee itself is included in Emmerson’s view of the “administration” does the comment make sense.

Emmerson then gets down to business:

The summary of the Feinstein report which was released this afternoon confirms what the international community has long believed – that there was a clear policy orchestrated at a high level within the Bush administration, which allowed to commit systematic crimes and gross violations of international human rights law.

The identities of the perpetrators, and many other details, have been redacted in the published summary report but are known to the Select Committee and to those who provided the Committee with information on the programme.

So we know that crimes have been committed. Further, the committee also knows who is responsible for those crimes. What to do about it?

It is now time to take action. The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes.

The fact that the policies revealed in this report were authorised at a high level within the US Government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability.

Note the language here. Emmerson doesn’t say that those responsible for the crimes should be brought to justice. He says outright that they MUST be brought to justice. Emmerson further points out that being authorized at a high level in the government gives no protection. Further, he notes a “conspiracy” to carry out the crimes.

Emmerson then goes on to destroy Barack Obama’s “look forward” bullshit and John Durham’s coverup disguised as an investigation:

International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes.

As a matter of international law, the US is legally obliged to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes.

Obama, Holder and Durham simply cannot grant immunity for these crimes. International law forbids it. More specifically, the Convention Against Torture, to which the US is a signatory, prohibits it. Similarly, the Convention on Enforced Disappearances also comes into play in the crimes committed by the US and also prevents the granting of immunity that Obama has tried to orchestrate.

Emmerson’s conclusion reiterates those points and provides a warning to those guilty of these crimes:

It is no defence for a public official to claim that they were acting on superior orders. CIA officers who physically committed acts of torture therefore bear individual criminal responsibility for their conduct, and cannot hide behind the authorisation they were given by their superiors.

However, the heaviest penalties should be reserved for those most seriously implicated in the planning and purported authorisation of these crimes. Former Bush Administration officials who have admitted their involvement in the programme should also face criminal prosecution for their acts.

President Obama made it clear more than five years ago that the US Government recognises the use of waterboarding as torture. There is therefore no excuse for shielding the perpetrators from justice any longer. The US Attorney General is under a legal duty to bring criminal charges against those responsible.

Torture is a crime of universal jurisdiction. The perpetrators may be prosecuted by any other country they may travel to. However, the primary responsibility for bringing them to justice rests with the US Department of Justice and the Attorney General.

Emmerson specifically calls out those who planned and authorized the torture as deserving the “heaviest penalties”.

And they need to be careful. Even though they are facing no punishment in the US for their crimes, these criminals can face prosecution should they travel abroad because torture is a crime subject to universal jurisdiction. Under universal jurisdiction, other countries would normally defer to the US for prosecution of crimes carried out by citizens of the US. However, once it is clear that no such prosecutions will take place, other countries are free to act.

Although I’d like to see them inside cells of much smaller dimensions, it appears that for now those who designed the CIA torture program and ordered its implementation are now imprisoned within the borders of the US because they are at risk of real prosecution while traveling outside the borders.

Dick Cheney Can Sing a [Black Site] Rainbow Too

This post is mostly meant as comic relief in response to President Obama’s willingness to hide the known black site locations behind stupid color names.

The WaPo has provided a very helpful key and map to help you remember that,

Cobalt: Afghanistan (Salt Pit)

Thailand: Green

Gray: Afghanistan

Orange: Afghanistan

Brown: Afghanistan

Poland: Blue

Romania: Black

Lithuania: Violet

I wouldn’t even rule out Adam Goldman and Julie Tate’s ability to snuff out the bribes — which have been redacted and called “gifts” or “subsidies” — the countries in question got for hosting our torture sites.

But until they do that, I can’t get an image of Dick Cheney frolicking in a tutu singing the Rainbow song out of my head.

Maureen Mahoney’s Dirty Bomb Blows Up

Back in 2010, I pointed out a key problem with Jay Bybee lawyer Maureen Mahoney’s defense of Bybee’s endorsement of the torture memos.

Mahoney spends three pages of her response (PDF pages 81 to 84) trying to justify the Bybee Memo’s unsupported reliance on a ticking time bomb scenario. After spending most of the discussion focusing on whether self-defense was viable in court (asserting, “the Memo’s intended audience would have been well aware that a ticking time bomb scenario had yet not been tested in the U.S. courts”), Mahoney tries to refute the OPR Report’s argument that the ticking time bomb scenario was not a real world scenario.

OPR states that the Memo should have discussed a real world situation in which a defendant could prove that he reasonably anticipated that torture would produce information directly responsible for preventing an immediate impending attack. But see id. at 31 n.17 (mentioning the ticking time bomb scenario as precisely such a real world situation)46

Which connects to this footnote.

Indeed, the OLC attorneys working on the 2002 Memo had been briefed on the apprehension of Jose Padilla on May 8, 2002. Padilla was believed to have built and planted a dirty bomb-a radiological weapon which combines radioactive material with conventional explosives-in New York City. It is easy for OPR, seven years removed from the horror of 9/11 to scoff at the notion of a ticking time bomb scenario, but the context in which these memos were written simply cannot be forgotten.

In other words, Maureen Mahoney, with a metaphorical straight face, points to the claim that Jose Padilla had “was believed to have built and planted a dirty bomb” to support her claim that the ticking time bomb is a realistic scenario!

Jose Padilla, of course, was arrested based on claims made by Abu Zubaydah. The dirty bomb claim–particularly the claim that Padilla had planted a dirty bomb, as opposed to just discussed the idea with Abu Zubaydah–seems to have come as a result of Abu Zubaydah’s torture. That torture was retroactively authorized by a memo signed by Maureen Mahoney’s client.

And now Mahoney is using evidence derived from that torture to argue that the claims in that memo were justified.

That’s one of the claims the Torture Report debunks.

This information was inaccurate. (181)

The Abu Zubaydah section makes clear he never believed Jose Padilla could carry out a dirty bomb attack.

Abu Zubaydah stated he did not believe the plan was viable and did not know the names of the two individuals, but provided physical descriptions of the pair. This information was acquired after Abu Zubaydah was confronted with emails indicating that he had sent the two individuals to KSM. (29)

The apologists want credit for this because it happened after AZ had begun to be subjected to sensory deprivation.

So even the torture apologists point to the ticking time bomb as a success, but in pointing to it they point to a warning that it wasn’t really a plot.

Which it wasn’t.

Boom.

Torture? Obviously, But What About Litany Of Other Crimes?

So, just a quick thought here, and with a little prompting by Jon Turley, obviously there is torture, and outright homicide thereon, spelled out and specified by the SSCI Torture Report. As I have said on Twitter, there are many things covered in the SSCI Torture Report and, yet, many things left out.

There are too many instances in the SSCI Torture Report to catalogue individually, but let’s be perfectly clear, the failure to prosecute the guilty in this cock up is NOT restricted to what is still far too euphemistically referred to as “torture”.

No, the criminality of US Government officials goes far beyond that. And, no, it is NOT “partisan” to point out that the underlying facts occurred under the Cheney/Bush regime (so stated in their relative order of power and significance on this particular issue).

As you read through the report, if you have any mood and mind for actual criminal law at all, please consider the following offenses:

18 U.S.C. §1001 False Statements

18 U.S.C. §1621 Perjury

18 U.S.C. §1505 Obstruction of Justice

These are but a few of the, normally, favorite things the DOJ leverages and kills defendants with in any remotely normal situation. I know my clients would love to have the self serving, toxically ignorant and duplicitous, work of John Yoo and Jay Bybee behind them. But, then, even if it were so, no judge, court, nor sentient human, would ever buy off on that bullshit.

So, here we are. As you read through the SSCI Torture Report, keep in mind that it is NOT just about “torture” and “homicide”. No, there is oh so much more there in the way of normally prosecuted, and leveraged, federal crimes. Recognize it and report it.

SSCI Torture Report Key: They Knew It was Torture, Knew It Was Illegal

CryingJusticeOkay, here are the critical working documents:

The SSCI Torture Report

The Minority Response to SSCI Torture Report

Dianne Feinstein’s Statement

But, without any question, my best early takeaway key is that the United States Government, knew, they bloody well knew, at the highest levels, that what was going on in their citizens’ name, legally constituted torture, that it was strictly illegal. They knew even a “necessity” self defense claim was likely no protection at all. All of the dissembling, coverup, legally insane memos by John Yoo, Jay Bybee et. al, and all the whitewashing in the world cannot now supersede the fact that the United States Government, knowing fully the immorality, and domestic and international illegality, proceeded to install an intentional and affirmative regime of torture.

Here, from page 33 of the Report, is the language establishing the above:

…drafted a letter to Attorney General John Ashcroft asking the Department of Justice for “a formal declination of prosecution, in advance, for any employees of the United States, as well as any other personnel acting on behalf of the United States, who may employ methods in the interrogation of Abu Zubaydah that otherwise might subject those individuals to prosecution. The letter further indicated that “the interrogation team had concluded “that “the use of more aggressive methods is required to persuade Abu Zubaydah to provide the critical information we need to safeguard the lives of innumerable innocent men, women and children within the United States and abroad.” The letter added that these “aggressive methods” would otherwise be prohibited by the torture statute, “apart from potential reliance upon the doctrines of necessity or of self-defense.”

They knew. And our government tortured anyway. Because they were crapping in their pants and afraid instead of protecting and defending the ethos of our country and its Founders.

Obama Would Not — Cannot — Deem Any Activities Authorized by Gloves Come Off Finding Illegal

ACLU Executive Director Anthony Romero has what I’m sure he believes to be an out of the box op-ed in the NYT. In it, he calls on President Obama to issue pardons for all those who masterminded the torture program.

But with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.

[snip]

But let’s face it: Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.

Mr. Obama could pardon George J. Tenet for authorizing torture at the C.I.A.’s black sites overseas, Donald H. Rumsfeld for authorizing the use of torture at the Guantánamo Bay prison, David S. AddingtonJohn C. Yoo andJay S. Bybee for crafting the legal cover for torture, and George W. Bush and Dick Cheney for overseeing it all.

There are many many problems with this proposal, some of which Kevin Jon Heller hits in a piece that notes this would not be pardon, but blanket amnesty.

But Romero’s proposal (if it is intended as anything beyond a modest proposal meant to call Obama’s bluff) fundamentally misunderstands the situation — a situation the ACLU has been at the forefront in exposing.

Obama would not — categorically cannot — admit that what Tenet and Bush and Cheney did on torture is illegal. That’s because he has authorized war crimes using the very same Presidential Finding as the Bush Administration used to authorized torture.

As I have laid out at length, the torture program started as a covert op authorized by the September 17, 2001 Gloves Come Off Memorandum of Notification. And along with torture, that Finding also authorized drone strikes. The drone strikes that Obama escalated.

Just 3 days after he assumed the Presidency, a drone strike Obama authorized killed as many as 11 civilians, including one child, and gravely injured a 14 year old boy, Farim Qureshi.  And several years into his Administration, Obama ordered the CIA to kill American citizen Anwar al-Awlaki with no due process. As far as we know, both of those things were done using that very same Finding, the Finding that Romero would like Obama to declare authorized war crimes.

When the 2nd Circuit ruled the President — President Obama, not President Bush — could keep a short phrase hidden making it clear torture had been authorized by that Finding in ACLU’s very own torture FOIA, it did so because the Finding still authorized intelligence activities. The Finding authorizing torture was still active — President Obama was still relying on it — at least as recently as 2012.

For Obama to pardon Bush, Cheney, and Tenet, he would have to admit that the same Finding that he used to authorize drone strikes that have killed hundreds of civilians authorized war crimes. There is absolutely zero chance Obama is going to do that.

The Debate about Torture We’re Not Having: Exploitation

We’re an empire now, and when we act, we create our own reality

Partly by design, the debate about torture that has already started in advance of tomorrow’s Torture Report release is focused on efficacy, with efficacy defined as obtaining valuable intelligence. Torture apologists say torture provided intelligence that helped to find Osama bin Laden. Torture critics refute this, noting that any intelligence CIA got from those who were tortured either preceded or long post-dated the torture.

Even setting aside my belief that, even if torture “worked” to elicit valuable intelligence, it still wouldn’t justify it, there’s a big problem with pitching the debate in those terms.

As the Senate Armed Services Committee Report on torture (released over 5 years ago, in far less redacted form than tomorrow’s summary will be) makes clear, the Bush regime embraced torture not for “intelligence” but for “exploitation.” In December 2001, when DOD first started searching for what would become torture, it was explicitly looking for “exploitation.”

As Administration lawyers began to reconsider U.S. adherence to the Geneva Conventions, the DoD Office of the General Counsel also began seeking information on detention and interrogation. In December 2001, the DoD General Counsel’s office contacted the Joint Personnel Recovery Agency (JPRA), headquartered at Fort Belvoir, Virginia, for information about detainee “exploitation.

And as a footnote explaining that reference makes clear, “interrogation is only one part of the exploitation process.”

Screen Shot 2014-12-08 at 4.54.34 PM

Some other things exploitation is used for — indeed the very things the torture we reverse-engineered for our own torture program was used for — are to help recruit double agents and to produce propaganda.

And we have every reason to believe those were among the things all incarnations of our torture were used for. We tortured in Abu Ghraib because we had no sources in the Iraqi resistance and for some reason we believed sexually humiliating men would shame them into turning narcs for the US.

Sami al-Hajj, the Al-Jazeera journalist held at Gitmo for 6 years, says the US wanted him to spy on ties between that outlet and al Qaeda for them.

SAMI AL-HAJJ: Yes, yes, three people, and one translator. And they told me, “Your story is clear. You don’t have anything. But you are now in Guantánamo, and we wait until we get some decisions from Pentagon to release you. Until that time, we want you to be patient and to cooperate with our people.” Later on, someone, he came, and they told me, “You are here to preparing you to cooperate with us in future.” I told him, “What that means?” He said, “You said in Kandahar you are ready to cooperate with us.” I told him, “Yes, I said that. But I said that I mean by ‘cooperate’ to answer question, not to work with you.” He said, “No, we understand you want to be with us, work with us.” And they starting give me some offer to give me a U.S.A. nationality and take care about my family, if I work with them in CIA to continue my job being journalist with Al Jazeera, just send for them some information about the link between Al Jazeera and al-Qaeda and the terrorist people and some people in the Middle East. Of course, I refused to do that. I told them, “I’m journalist, and I will die as a journalist. I will never work as a work, and just only journalist.”

And while I question whether we’ll ever learn the truth about Hassan Ghul, he reportedly agreed to infiltrate al Qaeda for us after we tortured him before he flipped back and got killed in a drone strike.

So one reason the CIA and DOD embraced torture was in hope of recruiting people to become our spies.

The propaganda value of torture, however, will receive far less attention still, because the implications of it are truly horrible. All reports about our torture assume that we “knew” the answers we wanted because we were stupid — we assumed al Qaeda had more plots than they did, or had grander plans than they did.

Or had ties with Iraq.

But when we consider the case of Ibn Sheikh al-Libi, whose torture-induced claim al Qaeda had ties to Iraq’s WMD programs helped drag us into Iraq,

According to al-Libi, the foreign government service [redacted] “stated that the next topic was al-Qa’ida’s connections with Iraq. … This was a subject about which he said he knew nothing and had difficulty even coming up with a story.” Al-Libi indicated that his interrogators did not like his responses and then “placed him in a small box approximately 50cm x 50cm.” He claimed he was held in the box for approximately 17 hours. When he was let out of the box, alLibi claims that he was given a last opportunity to “tell the truth.” When al-Libi did not satisfy the interrogator, al-Libi claimed that “he was knocked over with an arm thrust across his chest and he fell on his back.” Al-Libi told CIA debriefers that he then “was punched for 15 minutes.”216

(U) Al-Libi told debriefers that “after the beating,” he was again asked about the connection with Iraq and this time he came up with a story that three al-Qa’ida members went to Iraq to learn about nuclear weapons. Al-Libi said that he used the names of real individuals associated with al-Qa’ida so that he could remember the details of his fabricated story and make it more believable to the foreign intelligence service. Al-Libi noted that “this pleased his [foreign] interrogators, who directed that al-Libi be taken back to a big room, vice the 50 square centimeter box and given food.”217

And when you consider that Abd al-Rahim al-Nashiri claimed his torturers told him he had to claim Osama bin Laden had nukes,

>Number six. Usama bin Laden having a nuclear bomb. [REDACTED]. Then they used to laugh. Then they used to tell me you need to admit to those information. So I used to invent some of the stuff for them to say Usama bin laden had a, had a nuclear bomb. And they use to laugh and they were very happy. They were extremely happy because of the news. Then after that I told them, listen. He has no bomb.

When you consider under torture Abu Zubaydah turned Jose Padilla’s web searches into an active dirty bomb plot.

And when you consider that Dick Cheney wanted to have Iraqi Mukhabarat member Muhammed Khudayr al-Dulaymi waterboarded because he was sure he knew of the tie between Iraq and al Qaeda,

At the end of April 2003, not long after the fall of Baghdad, U.S. forces captured an Iraqi who Bush White House officials suspected might provide information of a relationship between al Qaeda and Saddam Hussein’s regime. Muhammed Khudayr al-Dulaymi was the head of the M-14 section of Mukhabarat, one of Saddam’s secret police organizations. His responsibilities included chemical weapons and contacts with terrorist groups.

[snip]

Duelfer says he heard from “some in Washington at very senior levels (not in the CIA),” who thought Khudayr’s interrogation had been “too gentle” and suggested another route, one that they believed has proven effective elsewhere. “They asked if enhanced measures, such as waterboarding, should be used,” Duelfer writes. “The executive authorities addressing those measures made clear that such techniques could legally be applied only to terrorism cases, and our debriefings were not as yet terrorism-related. The debriefings were just debriefings, even for this creature.”

Duelfer will not disclose who in Washington had proposed the use of waterboarding, saying only: “The language I can use is what has been cleared.” In fact, two senior U.S. intelligence officials at the time tell The Daily Beast that the suggestion to waterboard came from the Office of Vice President Cheney.

Then it raises the really horrible possibility that Cheney pushed torture because it would produce the stories he wanted told. It would be difficult to distinguish whether Cheney believed this stuff and therefore that’s what the torture produced or whether Cheney wanted these stories told and that’s what the torture produced.

As Steven Kleinman said in an important Jason Leopold and Jeff Kaye story on this subject, the torture CIA used was designed to get false confessions, not accurate information.

“This is the guidebook to getting false confessions, a system drawn specifically from the communist interrogation model that was used to generate propaganda rather than intelligence,” Kleinman said in an interview. “If your goal is to obtain useful and reliable information this is not the source book you should be using.”

The people who approved torture had the means of knowing — should have known — it would elicit false confessions. It’s just that no one can prove whether that was the entire point or not.

In this respect, then, the debate we’ll resume tomorrow is similar to the debate about the phone dragnet, where the government has not fully described the purposes it serves (indeed, in both cases, the government is hiding their use of the program to obtain spies).

It’s not just a question of whether torture is “effective” at obtaining intelligence. It’s also whether the entire point of it was to produce spies and propaganda.

Some Torture Facts

At the request of some on Twitter, I’m bringing together a Twitter rant of some facts on torture here.

1) Contrary to popular belief, torture was not authorized primarily by the OLC memos John Yoo wrote. It was first authorized by the September 17, 2001 Memorandum of Notification (that is, a Presidential Finding) crafted by Cofer Black. See details on the structure and intent of that Finding here. While the Intelligence Committees were briefed on that Finding, even Gang of Four members were not told that the Finding authorized torture or that the torture had been authorized by that Finding until 2004.

2) That means torture was authorized by the same Finding that authorized drone killing, heavily subsidizing the intelligence services of countries like Jordan and Egypt, cooperating with Syria and Libya, and the training of Afghan special forces (the last detail is part of why David Passaro wanted the Finding for his defense against abuse charges — because he had been directly authorized to kill terror suspects by the President as part of his role in training Afghan special forces).

3) Torture started by proxy (though with Americans present) at least as early as February 2002 and first-hand by April 2002, months before the August 2002 memos. During this period, the torturers were operating with close White House involvement.

4) Something happened — probably Ali Soufan’s concerns about seeing a coffin to be used with Abu Zubaydah — that led CIA to ask for more formal legal protection, which is why they got the OLC memos. CIA asked for, but never got approved, the mock burial that may have elicited their concern.

5) According to the OPR report, when CIA wrote up its own internal guidance, it did not rely on the August 1, 2002 techniques memo, but rather a July 13, 2002 fax that John Yoo had written that was more vague, which also happened to be written on the day Michael Chertoff refused to give advance declination on torture prosecutions.

6) Even after CIA got the August 1, 2002 memo, they did not adhere to it. When they got into trouble — such as when they froze Gul Rahman to death after hosing him down — they went to John Yoo and had him freelance another document, the Legal Principles, which pretend-authorized these techniques. Jack Goldsmith would later deem those Principles not an OLC product.

7) During both the August 1, 2002 and May 2005 OLC memo writing processes, CIA lied to DOJ (or provided false documentation) about what they had done and when they had done it. This was done, in part, to authorize the things Yoo had pretend-authorized in the Legal Principles.

8) In late 2002, then SSCI Chair Bob Graham made initial efforts to conduct oversight over torture (asking, for example, to send a staffer to observe interrogations). CIA got Pat Roberts, who became Chair in 2003, to quash these efforts, though even he claims CIA lied about how he did so.

9) CIA also lied, for years, to Congress. Here are some details of the lies told before 2004. Even after CIA briefed Congress in 2006, they kept lying. Here is Michael Hayden lying to Congress in 2007

10) We do know that some people in the White House were not fully briefed (and probably provided misleading information, particularly as to what CIA got from torture). But we also know that CIA withheld and/or stole back documents implicating the White House. So while it is true that CIA lied to the White House, it is also true that SSCI will not present the full extent of White House (read, David Addington’s) personal, sometimes daily, involvement in the torture.

11) The torturers are absolutely right to be pissed that these documents were withheld, basically hanging them out to dry while protecting Bush, Cheney, and Addington (and people like Tim Flanigan).

12) Obama’s role in covering up the Bush White House’s role in torture has received far too little attention. But Obama’s White House actually successfully intervened to reverse Judge Alvin Hellerstein’s attempt to release to ACLU a short phrase making it clear torture was done pursuant to a Presidential Finding. So while Obama was happy to have CIA’s role in torture exposed, he went to great lengths, both with that FOIA, with criminal discovery, and with the Torture Report, to hide how deeply implicated the Office of the President was in torture.

Bonus 13) John Brennan has admitted to using information from the torture program in declarations he wrote for the FISA Court. This means that information derived from torture was used to scare Colleen Kollar-Kotelly into approving the Internet dragnet in 2004.

Emptywheel Twitterverse
bmaz I am pretty disappointed in the Scafe For California Senate campaign so far. Everybody tweet harder. @erinscafe
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bmaz @gideonstrumpet @JamesPMorrison How do you know this? How do we know this? Why can't Pam Grier be god?
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bmaz @KagroX Nobody knows what time it really is. #Relativity
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bmaz I'd rather hear Marshawn Lynch on an hour long tape loop for halftime tomorrow than that worthless Katy Perry/Missy Elliott/Kravitz crap.
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bmaz RT @dangillmor: This @nytimes story on the anti-vaccination crowd is a classic in bogus objectivity. http://t.co/A4yxrwg1rA
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bmaz @KagroX This is all wrong. I have not been shot.
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bmaz RT @JamesPMorrison: Superbowl Question: Why are those who believe God will decide who wins the game still trying to blame Obama for what ha…
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bmaz @JasonLeopold @kevinjonheller Listen. Seriously. This Heller kid is okay by me. But his choice of football teams belies a general shakiness.
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bmaz @KagroX Well said!
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bmaz @armandodkos Romney's worst is that he is a milquetoast rich ass elitist white dude. Jeb has some real skeletons.
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bmaz @joanneleon Would rather hear from Glen Campbell.
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