Here and elsewhere, Rizzo alludes to the one torture technique John Yoo rejected, though he says “DOJ” rejected it because it was “so gruesome.” (Note the context in which this appears, though, as an afterthought to the sentence describing simulated drowning.)
Waterboarding: The interrogator would strap Zubaydah to an inclined bench, with his feet slightly elevated. A cloth would be placed over his forehead and eyes, and water would be applied to the cloth in a controlled manner—for 20 to 40 seconds from a height of 12 to 24 inches. The intention would be simulate the sensation of drowning. There was also another technique that I’m barred from describing that was so gruesome that the Justice Department later stopped short of approving it. [my emphasis]
As I reported almost 4 years ago, this technique actually should be unclassified, as DOJ released it in unredacted form in a draft of the Office of Professional Responsibility report.
The technique is mock burial.
They planned to use simulated drowning and simulated burial.
And Yoo didn’t reject it outright: he told Rizzo he would “need more time” if he wanted that technique to be approved.
Although Yoo told us that he had concluded that the mock burial technique would violate the torture statute, he nevertheless told the client, according to Fredman and Rizzo, that he would “need more time” if they wanted it approved.
Moreover, Yoo likely rejected it not because he found it gruesome (remember, Yoo has said he would seriously consider authorizing torturers crushing a child’s testicles to make his father talk). He almost certainly rejected it because Ali Soufan called the torturers’ plan to stick Abu Zubaydah (whose gunshot wounds were still not entirely healed) into a coffin, “borderline torture,” and then left the torture site and complained to his superiors. So (again, this is supported but not confirmed by the public record) when Michael Chertoff — then head of the Criminal Division and trying to ensure he wouldn’t have to charge the torturers with torture because the FBI witnessed and then complained about it — reviewed the techniques, this one presented a problem.
That DOJ approved, instead, both small and large box confinement shows they had no squeamishness with putting someone inside a box to simulate death. And we have reports that small or large box confinement got used as mock burial later in the torture program.
Plus, Rizzo does provide one other detail that helps explain one detail of how they planned to simulate burial.
For the small box, the interrogator would have the option to place a harmless insect inside.
That is, the insect they approved for use with Zubaydah was tied to the small — not the large — box. Stick him in a box, make him think he was buried alive, only to find an insect crawling around in there, as if he were 6 feet under.
Perhaps that’s why they never used the insect? Because they could never conduct unfettered live burial like they wanted, because Ali Soufan objected to it.
In any case, Rizzo will no doubt get a lot of mileage claiming that DOJ got squeamish about a single torture technique. But the truth is DOJ got cornered by the legal dilemma presented by a complaint about a coffin.
Update: Let me make this clear: I am not commenting on the content of the movie. I am commenting on the content of John Rizzo’s reactions to the movie, particularly his depiction about when and how and by whom “the box” was approved, which — as I say several times — get to the core of the legal problems with torture.
In a development I could have predicted, one of former CIA Acting General Counsel John Rizzo’s chief complaints with Zero Dark Thirty has to do with how the movie depicted “the box.” (This exchange comes from the first comments Rizzo made at an AEI event with him, Dick Cheney flack Marc Thiessen, former CIA Director Michael Hayden, and the director of the torture program, Jose Rodriguez).
MR. RIZZO: The interrogation scenes – I mean, they were – they were striking. They were hard to watch for me, having lived through this and how the – how the actual techniques came to be, and all the safeguards we put on them, all the monitoring by medical personnel during the course of the interrogation – you know, again, it’s a movie, so you know, the character in the movie, the interrogator, seemingly making stuff up as you went along, you’re not talking – OK, bring on the water and –
MR. : (Off mic) – get the buckets.
MR. RIZZO: – and get the buckets – now, the box – people have asked me about the box. And since this whole thing has been declassified now, most of you probably know that one of the techniques was a box, putting a detainee in a box for a – for a limited duration. Now, the box in the movie is not the kind of box that was – that was used. When I say all this, I don’t want to downplay or leave any impression that the actual program, the actual – the actual waterboarding was, you know, was tame or benign. I mean, it was a very aggressive technique, as were all the – all the others. But – so on the whole, I mean, I went into it – I went into it telling myself it was going to be a movie. I was frankly relieved that there were no lawyers involved in the movie. (Laughter.) I would have just spent the next four years at cocktail parties explaining why I wasn’t that lawyer. So I was – so I mean, on the whole, it’s as they said. It was a mixed bag, but it was a terrific movie. And you know, I think it did really take no sides and Miss Bigelow and Mr. Boal, I think, skillfully teed up the complicated moral questions of all of this we’re facing, especially in those first few scary months after the 9/11 attacks.
MR. THIESSEN: Can I – just to follow up on that. I mean, you know, you were the chief legal officer at the time. I mean, would you have authorized the interrogation techniques the way they were depicted? I mean, explain the difference in the box – (chuckles) – explain the – you know, explain that you – do people just throw somebody on a mat and start pouring water over their heads? I mean –
MR. RIZZO: No, no, the – first of all, you know, it was – it was “Mother, May I.” Those interrogators were not allowed to adlib. There were certain specific –as the memos – OLC memos show at the time, I mean, it was a – there was a meticulous procedure to undertake. And before the use of the waterboard – they will confirm this – the interrogators at the site would have to come back in writing, explain why they thought the waterboard was necessary, it would be approved at headquarters. During the time the waterboard was used, which was only until mid-2003, it took the CIA director to approve the use. So it was a much more modern program. Now, the box – I mean, a box is not pleasant. First of all, there is – there was a big box authorized that the detainee could stand in and a smaller box. It wasn’t – it didn’t appear to me to be quite as small as what was depicted in the movie. But yes, there was a box technique. But again, the – I mean, when I – you know, everyone can look at this in a different way. I just had the impression from the scene that the guy was sort of, you know adlibbing as he went along, which was, believe me, far from the – far from the reality. [my emphasis]
The box — particularly the apparent portrayal (I haven’t yet seen the movie) that the torturer ad-libbed when he introduced the box — is as big a concern of Rizzo’s as waterboarding is.
Of course it is.
That’s because the coffin — later dubbed a small box to give it legal cover — used to conduct a mock burial with Abu Zubaydah is the at the heart of the legal problems with torture.
As these posts lay out (one, two, three, four), one of several main reasons CIA asked the Office of Legal Counsel for a memo authorizing torture is because Ali Soufan saw Abu Zubaydah’s torturers prepare to put Abu Zubaydah in a coffin (it’s unclear whether he or his partner Steve Gaudin saw them actually use the coffin). That is one of the things — perhaps the thing — that Soufan labeled “borderline torture.” And because an FBI officer had told CIA’s contractors he might need to prosecute them for what he had seen, CIA needed more durable legal cover than the daily approvals given by Alberto Gonzales every night.
Because an FBI officer had labeled the things approved by the White House, on the President’s authority, illegal.
Which is why John Rizzo and John Yoo started writing first the July 13, 2002 memo generally authorizing torture (this memo is what the CIA would ultimately rely on to claim things like the murder of Gul Rahman were legal) and then, several weeks later, the Bybee Memo laying out the approved torture techniques in detail.
John Rizzo tried to get John Yoo to approve the technique that had already been used on Abu Zubaydah, the one Ali Soufan had labeled illegal. He tried to get mock burial approved as a technique; he kept trying right up until the last days before the Bybee Memo was finalized. But for some reason — I suspect, because Michael Chertoff had already agreed with the FBI that the mock burial Ali Soufan complained about was illegal — it was not included in the final list.
Instead, John Yoo and Jay Bybee approved “small box confinement.” Something that, if everyone remained silent about the intent and desired effect of shoving someone in a coffin-shaped box and leading them to believe they’d be buried alive, would both retroactively approve the use of a coffin that Abu Zubadayh’s (and Ibn Sheikh al-Libi’s) torturers had already used, but also let them use mock burial in the future, in spite of the fact that John Yoo – even John Yoo – had deemed it illegal.
One of the main things an FBI officer judged illegal — mock burial, a technique that had already been used, on the authority of the President — is the only single torture technique John Yoo ever deemed illegal.
Again, I have not yet paid to see the CIA’s propaganda effort. But John Rizzo, at least — the man who tried so hard to get the OLC to approve mock burial — is very concerned both about the size of the box in question (the SERE document used to label it “small box confinement” prescribed size and time limits), but more importantly that torturer in the movie is depicted as using the coffin-shaped box without first getting approval for it.
The movie, it seems, shows a torturer using a coffin before John Yoo and John Rizzo would have deliberated for weeks and decided to call it small box confinement. The movie, it seems, shows a torturer using a coffin to conduct a mock burial [Update: I've been told they don't do a burial in the movie, though it does depict adlib], and doing so in terms that make it clear that the coffin preceded the DOJ approval for it.
I’m extrapolating from Rizzo’s comments, but it seems likely that his problem with the box is that ZD30 depicts its use in precisely the terms that make it illegal, the one act of torture labeled illegal as it was happening, one of the main acts of torture the OLC memos were designed to provide legal cover for.
Frankly, I’m sympathetic to Rizzo’s complaint that this depiction of a torturer ad-libbing by using a coffin is inaccurate (though not to his claim that it was an OLC memo that limited the torture). After all, we know that the White House was responding to the torturers’ “Mother, May I” on a daily or near-daily basis.
We know that the White House was renewing its Gloves Come Off Memorandum of Notification approval for things like mock burial at each step of the process. So it’s not like the torturers executed a mock burial without approval.
The problem, however, is that they executed a mock burial with the President’s approval, weeks and months before the DOJ would deem that one torture technique illegal.
The Senate Intelligence Committee’s new anti-leak laws are the part of the Intelligence Authorization that will generate the most attention. Greg Miller already got Dianne Feinstein to admit there’s no reason to think one of the new provisions–permitting only the most senior intelligence officials to do background briefings–will limit leaks.
Feinstein acknowledged that she knew of no evidence tying those leaks or others to background sessions, which generally deal broadly with analysts’ interpretations of developments overseas and avoid discussions of the operations of the CIA or other spy services.
Another of the provisions–requiring intelligence committee heads to ensure that every sanctioned leak be recorded–ought to be named the Judy Miller and Bob Woodward Insta-Leak Recording Act.
(a) RECORD REQUIREMENT.—The head of each element of the intelligence community shall ensure that such element creates and maintains a record of all authorized disclosures of classified information to media personnel, including any person or entity under contract or other binding agreement with the media to provide analysis or commentary, or to any person or entity if the disclosure is made with the intent or knowledge that such information will be made publicly available.
I’m sure someone can think of some downside to this provision, but I can’t think of it at the moment (which is why Obama will probably find some way to eliminate it). It will end some of the asymmetry and abuse of classification as it currently exists.
In addition, there are a bunch of provisions that are just dumb bureaucracy.
But it’s this one that is deeply troubling. Among the other provisions making nondisclosure agreements more rigorous is a provision that would allow an intelligence community head to take away a person’s pension if they “determine” that an individual violated her nondisclosure agreement.
As Ali Soufan has been making the rounds rebutting Jose Rodriguez’ self-serving lies, he has said something, repeatedly, that hasn’t gotten a lot of attention.
Soufan has notes that prove Rodriguez is lying.
He actually first mentioned them publicly (AFAIK) in his book, Black Banners.
In early 2008, in a conference room that is referred to as a sensitive compartmented information facility (SCIF), I gave a classified briefing on Abu Zubaydah to staffers of the Senate Select Committee on Intelligence. The staffers present were shocked. What I told them contradicted everything they had been told by Bush administration and CIA officials.
When the discussion turned to whether I could prove everything I was saying, I told them, “Remember, an FBI agent always keep his notes.” Locked in a secure safe in the FBI New York office are my hand-written notes of everything that happened with Abu Zubaydah [redacted] (434-435; my emphasis)
He mentions them again later in the book, almost begging someone to go get them.
It was apparent from the [torture] memos that the introduction of EITs was based on lies. The proof resides in my notes–locked, as noted earlier, in FBI vaults. (526)
Soufan repeated this emphasis on his notes in a piece explaining why Jose Rodriguez’ lies might help Abd al Rahim al-Nashiri in his military commission.
Nonetheless, the government has my investigative notes, as well as daily reports, and the inspector general also found instances where Rodriguez’s team went far beyond what they had approval for and the legal guidelines set forth by the George W. Bush administration, including holding a drill to Nashiri’s head. [my emphasis]
And in the Q&A with Amy Davidson, Soufan again mentions that documentary proof that Rodriguez is lying.
The claim about waterboarding leading to unmasking of K.S.M. as the mastermind of the September 11, 2001, attacks is similarly false. We got that information in April, 2002, before the contractors hired by the C.I.A. Counterterrorism Center even arrived at the site. One by one, the successes claimed by E.I.T. proponents have been shown to be false.
I went before the Senate Judiciary Committee and under oath recounted what happened. And, as I note in “The Black Banners,” I sent daily reports from the secret interrogation location, to Washington, recording what happened, which the U.S. Government has in its possession.
The tapes also contained our interrogations, done with traditional techniques. The tapes would have shown under which circumstances Abu Zubaydah coöperated and when he stopped coöperating. But while the tapes were destroyed, our daily reports from the location are luckily safe and still in the government’s possession. [my empahsis]
Notes, notes, notes and daily reports, daily reports, daily reports.
Frankly, I think Jose Rodriguez was being naive when he claimed that having Jay Bybee’s signature on a memo authorizing some, but not all, of the torture the torturers had already done by August 1, 2002 constituted full authority for what they had done.
But before moving forward, Jose Rodriguez got his superiors, right up to the president – to sign off on a set of those techniques, including waterboarding.
Jose Rodriguez: We needed to get everybody in government to put their big boy pants on and provide the authorities that we needed.
Lesley Stahl: Their big boy pants on–
Jose Rodriguez: Big boy pants. Let me tell you, I had had a lot of experience in the agency where we had been left to hold the bag. And I was not about to let that happen for the people that work for me.
Lesley Stahl: There wasn’t gonna be any deniability on this one?
Jose Rodriguez: There was not gonna be any deniability. And I tell you something. In August of 2002, I felt I had all the authorities that I needed, all the approvals that I needed. The atmosphere in the country was different. Everybody wanted us to save American lives.
After all, to this day, these counterterrrorism programs are being run on a Memorandum of Notification that not only doesn’t comply with the terms of the National Security Act, but shields the President (Obama even more so than Bush) from any direct accountability, a carefully crafted deniability that the CIA has worked to preserve.
Lesley Stahl was apparently not up to the task of asking Rodriguez about the torture the torturers actually used which exceeded the terms of the authorization. She describes waterboarding as laid out in the Bybee Memo, without acknowledging that the torturers didn’t follow those guidelines. Stahl asserts as fact that the CIA kept Abu Zubaydah up for 3 straight days, when evidence suggests his sleep deprivation lasted longer, perhaps as long as 11 days. Had Stahl laid out the degree to which the torturers were known to have exceeded guidelines (both before and after those guidelines were codified in the Bybee Memo), she might have noted the underlying problem with this exchange.
Lesley Stahl: Oh, you had rules for each thing?
Jose Rodriguez: Yes, we had rules. And not only that, but every time we did any of this, we had to ask permission. The field had to ask permission of headquarters.
Lesley Stahl: Each time.
Jose Rodriguez: Each time.
As she herself pointed out, Rodriguez was not doing the torture. He wasn’t in the field. He was at HQ. In fact, he was one of the guys sitting in Langley giving the oral permissions for individual torture techniques both before and after Bybee signed his memo, the techniques that exceeded the rules laid out in Bybee. You’d think Stahl might have pointed that out.
In his book, The Black Banners, former FBI Agent Ali Soufan describes multiple occasions when FBI and CIA reporting on a subject did not match. For example, he describes how his reporting and that of a CIA officer, Fred, differed during the investigation into the Millenium Plot.
My problems with him started within the first couple of days, after Pat D’Amuro received a phone call from FBI headquarters saying that my reporting of intelligence and Fred’s reporting of the same event didn’t match up.
An investigation was done and the Jordanians were consulted, and all concerned were advised that my reporting was correct and Fred’s was faulty.
Because of his flawed analysis, a total of twelve [redacted]–intelligence reports–had to be withdrawn. If portions of a cable are shown to be inaccurate, the entire cable is viewed as unreliable and suspect. (138-39)
Soufan elsewhere claims “there were discrepancies between information that went through CIA channels and what was reported in FBI channels” in some other cases. (119)
Adnan Latif’s redacted petition for cert has been released. The petition–plus the exhibits submitted with it–show that similar problems plagued at least one pair of reports on Latif. And those discrepancies, by themselves, prove that giving government interrogation summaries the presumption of regularity is untenable.
The pair of reports are DOD and FBI summaries of an interrogation of Latif conducted on May 29, 2002 (see PDFs 91 and 93-94) . As I noted in this post, even Latif’s factual return made it clear there were discrepancies between the two reports (though the unredacted parts of the factual return didn’t admit they recorded the same interview). The petition summarizes these discrepancies.
The reports, however, have numerous discrepancies. For example, one states that he is a Yemeni, App. 223a, while the other says both that he “claims Bangladeshi citizenship” and is a member of a Yemeni tribe, App. 221a. One says that he attended secondary school for “two or three years, and eventually graduated,” App. 223a, while the other states that he claimed to have “never graduated from high school,” App. 221a. It is obvious that at least one or perhaps both documents failed accurately to report what the translator was telling the interrogators.
The Bangladesh claim, incidentally, appears to derive from just one report, Latif’s Knowledgability Brief from February 2002 (which was not cited in his Gitmo file); his intake form (PDF 33-34) from December 31, 2001 clearly identifies him as an Arabic speaking Yemeni and notes he claimed he was picked up because he was an Arab. So it appears (though we can’t be sure) the DOD report writer wrote what would be consistent with the KB (and cited it), while the FBI report recorded what Latif said in the interview.
One more important discrepancy between the DOD and FBI reports from May 29, 2002: the DOD report says Latif was 16 when he suffered his head injury. The FBI report said he was 14. Latif’s factual return cites the differing ages as proof he kept changing his story (something similar happened in one of his CSRTs, but the confusion arose from his sense of time); but clearly here it was a difference of reporting, not of his report.
A footnote in the petition reveals the government tried to attribute these discrepancies to Latif changing his story until it became clear the fault lay in the inconsistency of the report writing of one or both of his interrogators.
The government initially argued that the reports were so inconsistent that they proved that Latif, like a guilty man, was changing his story from one interrogation to another. When it was pointed out to the government that the reports were evidently from the same interrogation, and that the discrepancies were created by the government, not by Latif, the government abandoned this argument.
Now, neither of these reports are the report that claims Latif trained with the Taliban, what I suspect is TD-314/00684-02. So showing that the reporting process of that May 29, 2002 interrogation introduced discrepancies is not sufficient to prove that the report at issue suffered from the same–and worse–kind of reporting problems.
But it’s significant to this case that even among the reports not written in the fog of war–as the report at issue was–the reporting process of one or both of these reports introduced (at best) confusion into the report, if not outright inaccuracy. The government, faced with that fact in a case in which they were at the same time insisting that all interrogation reports be accorded the presumption of regularity, simply blamed the detainee and then just dropped it.
If Janice Rogers Brown has her way and such interrogation reports are granted the presumption of regularity, then we must accept that a reporting process that describes Latif as both Bangladeshi and Yemeni, as both as a madrassa graduate and as someone who did not graduate, to have not introduced any inaccuracies.
Now, Henry Kennedy wasn’t pointing to the obvious deficiencies in the Gitmo files when he ruled an interrogation report not credible (though he did suggest those reports might suffer from translation problems, something that several exhibits submitted with the cert petition support). Kennedy was making a much more modest argument: that interrogation reports produced in a process with none of the organization that had been imposed at Gitmo by May 2002 should not be presumed to be accurate records of an interrogation.
If the government can’t even produce consistent reports from a relatively orderly prison, then why has the DC Circuit mandated that courts accept interrogation reports from far more chaotic processes?
One final note: Soufan suggests that if CIA cables have been shown to have inaccuracies, the entire cable is withdrawn. Even Rogers Brown admits that the report in question included an “obvious mistake.” If, as I suspect, this is a CIA cable, and if it has such obvious mistakes that even a Circuit Court judge sees it, then why hasn’t the CIA withdrawn the cable?
Or have they?
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]
I’m still slogging through Dick Cheney’s awful book–I will write some more comprehensive things when I finish.
They had struck us before, blowing a crater five stories deep in the World Trade Center in New York in 1993. Al Qaeda had attacked our embassies in Kenya and Tanzania in 1998, killing hundreds, including twelve Americans. Osama bin Laden, al Qaeda’s leader, had personally chosen the operatives who bombed the U.S.S. Cole in a Yemeni harbor in 2000. Seventeen crew members had died. During the nineties, the United States had treated terrorist attacks primarily as law enforcement matters, indicting terrorists when we could, trying them, and sending some of them to prison. But that approach hadn’t stopped the attacks. Al Qaeda had just delivered the most devastating blow to our homeland in its history.
We needed a new way forward, one based on the recognition that we were at war.
In this abbreviated passage, Cheney makes his case that we had to combat al Qaeda with a wartime approach, something different that had been used up to that point.
There’s a lot else he misses in the lead up to 9/11. He makes no mention of Richard Clarke and his efforts to do something about al Qaeda. That’s not surprising given Cheney’s churlish approach to mentions of others in this book.
Cheney also lays no blame for the Cole bombing–not on the Navy and not on Clinton. This, in spite of the fact that he attacked similar military errors contributing to the 1983 Marine barracks attack in Beirut and the Blackhawk attack in Somalia, and in spite of his almost gleeful joy at blaming Carter and Clinton for the failed Desert One rescue and Somalia, respectively.
But the failure to mention that law enforcement had discovered and prevented a plot is really telling. Because, of course, alert law enforcement had “stopped the attacks” on one occasion, but it’s that occasion he completely ignores in his recitation of past al Qaeda attacks.
So there it is–the bulk of the justification for Cheney’s One Percent Doctrine, omitting all mention that sound counter-terrorism policy might have prevented the USS Cole or at least the casualties, that our counter-terrorism efforts had successfully interdicted a plot, and that Richard Clarke (and George Tenet) had been issuing shrill warnings in the days leading up to 9/11.
Sure, he needs to omit those details to make his logic work. He needs to present war as the only option.
But it also makes you wonder whether he knows, too, that we could, and should, have prevented 9/11.
The US government has a long history of refusing to turn over evidence on its torture program, most recently when DOJ refused to cooperate with a Polish inquiry into the black site at which Khalid Sheikh Mohammed was waterboarded 183 times.
So it’s no surprise that they are refusing to turn over the remains of Gul Rahman–the detainee whom the CIA killed in the Salt Pit in 2002–to his family. (h/t Mary) The FBI is also refusing to turn over the autopsy report on Rahman’s death to the AP on account of the probably “pretend” investigation they’re conducting on it.
In addition to reporting that news, the AP reports the excuse the CIA is now giving for having killed Rahman in the first place.
Former CIA officials say Rahman was acting as a conduit between Hekmatyar and al-Qaida. Hekmatyar’s insurgent group is believed to be allied to al-Qaida. The former officials said the CIA had been tracking Rahman’s cell phone at the time of his capture and were hoping the suspected militant would provide information about Hekmatyar’s whereabouts.
But Rahman never cracked under questioning, refusing to help the CIA find Hekmatyar. Former CIA officials described him as one of the toughest detainees to pass through the CIA’s network of secret prisons.
Note the logic of this argument? For some reason, they couldn’t find Hekmatyar by tracking Rahman’s cell phone (Rahman was picked up long before Afghans got more aggressive about hiding their cell phone locations).
But if they couldn’t find Hekmatyar by tracking Rahman’s calls to him, then why were they so sure he knew where Hekmatyar was?
So now they’ve got to explain away his death because he was “one of the toughest detainees to pass through the CIA’s network of secret prisons,” and not because maybe he didn’t know the answer to the question they were asking, the location of Hekmatyar himself.
Of course, there’s a history of using the worst kinds of torture on detainees who don’t know or wouldn’t reveal the whereabouts of others, too. The location of Osama bin Laden, after all, is one of the things that KSM has said he lied about in response to his brutal torture.
And while we’re on the subject of lying, let’s return to what KSM has said he lied about while being tortured during his 2007 Combatant Status Review Tribunal.
… I make up stories just location UBL. Where is he? I don’t know. Then he torture me. Then I said yes, he is in this area of this is al Qaida which I don’t him.
Mind you, in KSM’s case, at least, Ali Soufan believes KSM could have been persuaded to reveal OBL’s location if only real interrogators had interviewed him.
KSM should consider himself lucky, I guess, that the government’s brutal torture in hopes of learning the location of top extremist leaders got slightly safer between the time they killed Rahman and wateboarded him a mere 183 times.
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.
Of course, two things are going on in the background. First, when Ali Soufan left the black site in May because James Mitchell threatened Abu Zubaydah with mock burial, DOJ got official notice that one of its top terrorism agents believed that the CIA was using torture with Zubaydah. Yet, two months later, the torturers were almost certainly already using the most aggressive torture with Abu Zubaydah.
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?