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Defense Lawyer Comments on Ramzi bin al-Shibh and Rahim al-Nashiri

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ACLU just had a conference call on today’s Gitmo announcement with, among others, Razmi bin al-Shibh’s civilian defense attorney, Tom Durkin, and Rahim al-Nashiri’s defense attorney, Nancy Hollander. Both had important details about their clients’ defense.

I asked Durkin about the status of al-Shibh’s competency hearings. Since the government has been trying to refuse defense attorneys access to al-Shibh’s medical records in the context of his competency to stand trial, I wondered if the defense team would continue to push for competency hearing as the trial moves to SDNY. Durkin refused to say what the team would do, but noted that since the military judge had raised the issue of a competency hearing, it is public record that it is an issue.

So expect al-Shibh’s defense team, at least, to continue to push for medical records in the scope of a competency question.

Hollander, who is defending al-Nashiri, noted they, too, have been pushing for their client’s medical records.

She also stated that they are going to contest the venue of the trial. Eric Holder had said a military commission for al-Nashiri is appropriate, given that the Cole bombing occurred in another country and its victims were all military. But Hollander pointed out that the Cole bombing was first investigated as a criminal case, so the only reason (she speculated) why the government would be trying him in a military commission is because they don’t have the evidence to convict him in a civilian court.

CIA OIG’s Wild Parsing about What Was “Depicted” on the Torture Tapes

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I wanted to point out a somewhat weedy detail about how the CIA IG Report describes the torture investigation as compared to how the CIA’s Office of Inspector General described that investigation in court filings last year.

As you’ll recall, after the CIA admitted to the destruction of the torture tapes in 2007, the ACLU filed to hold the CIA in contempt for not having revealed the existence of the torture tapes earlier in their torture document FOIA. In response, the OIG submitted a filing and a declaration describing why they hadn’t revealed the existence of the tapes.

The filing explained that CIA had no obligation to search its operational files in response to the ACLU’s FOIA unless those files had been the subject of an investigation.

Moreover, the videotapes were not responsive to Plaintiffs’ FOIA requests because the activities depicted on the videotapes were not the subject of a CIA OIG investigation of allegations of impropriety in Iraq, or any other investigation conducted by CIA OIG. Under the Central Intelligence Agency Information Act (“CIA Information Act”), the CIA’s operational records are exempt from search or review in response to FOIA requests unless an exception to the Act applies. One exception is where the records requested are the specific subject matter of an investigation by CIA OIG into allegations of impropriety or illegality in the conduct of an intelligence activity. 50 U.S.C. § 431(c)(3). Here, CIA OIG did not conduct an investigation into allegations of impropriety or illegality relating to the interrogations on the videotapes prior to their destruction. Therefore, the tapes were exempt from search and review in response to Plaintiffs’ FOIA requests up to the time of their destruction. [my emphasis]

And the declaration went on to make certain claims about the relationship between the CIA IG investigation and the subject matter of the torture tapes.

In January 2003, OIG initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing.

[snip]

At no time prior to the destruction of the tapes in 2005 did OIG initiate a separate investigation into the interrogations depicted on the videotapes.

Read more →

What al-Nashiri and KSM Didn’t Tell Us

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You know how we’ve been trying to figure out why PapaDick and BabyDick never claim waterboarding worked with Rahim al-Nashiri? Ali Soufan tells us what we didn’t learn from him using torture: details of his operation on the Arabian peninsula.

A third top suspected terrorist who was subjected to enhanced interrogation, in 2002, was Abd al-Rahim al-Nashiri, the man charged with plotting the 2000 bombing of the Navy destroyer Cole. I was the lead agent on a team that worked with the Yemenis to thwart a series of plots by Mr. Nashiri’s operatives in the Arabian Peninsula — including planned attacks on Western embassies. In 2004, we helped prosecute 15 of these operatives in a Yemeni court. Not a single piece of evidence that helped us apprehend or convict them came from Mr. Nashiri.

And what we didn’t learn from Khalid Sheikh Mohammed–the location of Osama bin Laden and Ayman al-Zawahiri–is even more incendiary.

Mr. Mohammed knew the location of most, if not all, of the members of Al Qaeda’s leadership council, and possibly of every covert cell around the world. One can only imagine who else we could have captured, or what attacks we might have disrupted, if Mr. Mohammed had been questioned by the experts who knew the most about him.

Some of this, btw, is almost certainly explained in Soufan’s interview with the 9/11 Commission, which has been imminently pending to be declassified since April.

So how long until PapaDick and BabyDick and their apologists start getting asked about how torture may have prevented us from finding Osama bin Laden?

How a Review Gets to Grand Jury in Five Days or Less

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Update: Several people have corrected me that contextually this paragraph refers to the torture tape investigation, not the torture investigation. I think it’s still a good sign, but may not yet reflect on the torture investigation.

Although I have publicly suggested that Holder’s selection of John Durham as Special Counsel to investigate torture sets an upper limit on the seniority of those who might be targeted (because you don’t want an AUSA indicting, say, the former Acting Counsel of CIA), I did hold out one hope that Durham’s selection was a good sign. After all, Durham has already been investigating why Jose Rodriguez and others destroyed a bunch of tapes portraying the abuse of Abu Zubaydah and Rahim al-Nashiri. We know Zubaydah’s torturers exceeded the limits of the Bybee Two memo when they waterboarded him. And we know al-Nashiri’s torturers threatened him with drills.

So there was the possibility that Holder’s selection of Durham effectively amounted to an expansion of Durham’s earlier mandate, from an investigation of the destruction of evidence of abuse to an investigation of the abuse itself.

Which is why I’m so interested in a passage that Jason Leopold pointed to in the Walter Pincus story reporting that CIA will pay for CIA officers’ legal fees (the article doesn’t really say whether CIA will pay for contractors’ legal fees).

In that investigation, Durham has asked agency contractors to give testimony before a grand jury in Alexandria next month, according to three sources familiar with the matter. It is not clear that the witnesses will testify. 

Durham has been officially investigating the torture itself (as opposed to the torture tape destruction) for just four days. And his mandate is–at least officially–just a review of the earlier cases. Yet he’s already scheduling testimony before the grand jury next month?

I’m no lawyer (but bmaz is, and he agrees with me, and he’s even a bigger skeptic than I am), but there is no way Durham would be scheduling testimony before a grand jury that didn’t significantly arise from his earlier mandate. So these contractors are–at a minimum–almost certainly tied to the abuse of al-Nashiri, and might be tied to the abuse of Abu Zubayahdah.

The torture apologists are wailing that there’s no reason to reopen investigations that–they claim–were already completed by DOJ. But it appears that one reason to do just that is that CIA destroyed evidence they knew to be abusive Read more →

Hiding al-Nashiri’s Torture

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Less than a month after the NYT first revealed the CIA had destroyed torture tapes, I suggested that Doug Jehl’s November 9, 2005 story may have been the precipitating factor that led the CIA to destroy the torture tapes.

In other words, Helgerson and his staff reviewed the torture tapes sometime between early 2003 and late 2005, quite possibly close to the time of that May 2004 White House briefing.

Which is rather significant, since that earlier period (2003 to 2004) coincides with the period when Helgerson’s office was also investigating the CIA’s interrogation program. Here’s a Doug Jehl story on the report that was published (will coinkydinks never cease?!?!?!) on November 9, 2005, within days of the torture tape destruction and apparently one day after the CIA issued a statement denying they torture (though the statement doesn’t appear in their collection of public statements from the period).

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

[snip]

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

The agency said in a written statement in March that "all approved interrogation techniques, both past and present, are lawful and do not constitute torture." It reaffirmed that statement on Tuesday, but would not comment on any classified report issued by Mr. Helgerson. The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading, and which are not explicitly prohibited in American law.

The officials who described the report said it discussed particular techniques used by the C.I.A. against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world. They said it referred in particular to the treatment of Khalid Sheikh Mohammed, who is said to have organized the Sept. 11 attacks and who has been detained in a secret location by the C.I.A. since he was captured in March 2003. Read more →

Walid bin Attash to Be Denied Day in Court because al-Nashiri Was Tortured?

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Dafna Linzer has a story on Obama’s consideration of implementing indefinite detention via Executive Order because Congress isn’t going to cooperate with it.

The Obama administration, fearing a battle with Congress that could stall plans to close Guantanamo, has drafted an executive order that would reassert presidential authority to incarcerate suspected terrorists indefinitely, according to three senior government officials with knowledge of White House deliberations.

The whole story is worth reading. But I’m particularly interested in the last bit–where Linzer names one of the people they’re considering using indefinite detention on: Walid bin Attash.

Walid bin Attash, who is accused [4] of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official.

Little information on bin Attash’s case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify.

Administration officials believe that testimony from the only witness in U.S. custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.

"These issues haven’t morphed simply because the administration changed," said Juan Zarate, who served as Bush’s deputy national security adviser for counterterrorism and is now at the Center for Strategic and International Studies in Washington.

A couple of bits about this.

First, there was a great deal of FBI work done on the Cole before the torture started. Are you saying we captured and held someone based on Rahim al-Nashiri’s word, and not on real FBI information? This is all the more interesting, because information about bin Attash’s role in the Cole bombing is precisely the information that–in 2000–was not used to support a response to the Cole bombing.

But the presentation of bin Attash as one candidate for indefinite detention raises another obvious problem with indefinite detention. Is the Administration worried about al-Nashiri’s credibility as a witness? Or–given the weirdness surrounding his waterboarding–is the Administration worried about what al-Nashiri’s testimony (either public or written) would reveal about our own treatment of him?

Will Walid bin Attash be deprived Read more →

In April 2003, after Waterboarding Him 183 Times, the CIA Admitted KSM Was Lying to Them

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In March 2003, the CIA subjected Khalid Sheikh Mohammed to the most brutal of its torture techniques. Over the course of that month, we know, the CIA waterboarded Khalid Shaikh Mohammed 183 times.

Then, three days into April, the CIA wrote an analytical report admitting that KSM lied during those interrogations. 

A footnote in the 9/11 Report provides some detail on this analytical report (footnote 4 in Chapter 7).

In an assessment of KSM’s reporting, the CIA concluded that protecting operatives in the United States appeared to be a "major part" of KSM’s resistance efforts. For example, in response to questions about U.S. zip codes found in his notebooks, KSM provided the less than satisfactory explanation that he was planning to use the zip code to open new email accounts. CIA report, Intelligence Community Terrorist Threat Assessment, "Khalid Shaykh Muhammed’s Threat Reporting–Precious Truths, Surrounded by a Bodyguard of Lies," April 3, 2003, pp 4-5.[my emphasis]

Admittedly, CIA was bemoaning the perceived lies KSM was telling to protect operatives the Agency assumed he had planted around the United States (the footnote serves to explain why the 9/11 Commission did not believe KSM’s claims that there were no al Qaeda operatives in Southern California to assist two of the hijackers). At least from this description, we don’t know whether the Agency also admitted that KSM was lying about knowing where Osama bin Laden was–as was declassified the other day. But we do know that CIA acknowledged he was lying about precisely the subject–threat reporting–that the torture apologists claim waterboarding was so successful in eliciting.

I present this not as proof that KSM was lying about who al Qaeda had stationed in the US. Rather, it is a document written contemporaneously with the torture. And it shows what role torture-induced knowledge played for the CIA. Where KSM didn’t confirm CIA’s preconceptions, they assumed he was lying. Where he gave them stories of scary attacks, they wasted resources tracking them down. But, partly because they were torturing him, they had no easy way to sort through the crap to find any real intelligence.

There are a number of outlets that believe KSM’s admissions of lying at his CSRT are the big takeaway, even though equally damning admissions in the CSRTs have long been unclassified and KSM’s CSRT already had unclassified claims of lying.

But why take KSM’s word for it? Read more →

Al-Nashiri’s Swollen Nerves, the CIA’s Apology to Abu Zubaydah

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As MadDog pointed out, the latest redactions of the CSRT transcripts are up at ACLU.

Transcript of Khalid Sheikh Muhammad’s CSRT (27 page PDF).

Transcript of Al Nashiri’s CSRT (39 page PDF).

Transcript of Abu Zubaydah’s CSRT (30 page PDF)

Transcript of Majid Khan’s CSRT (50 page PDF)

I say "latest redactions" because they really haven’t declassified that much–just single lines here and there.

The biggest piece of news, IMO, is Rahim al-Nashiri’s description of his swollen nerves.

Before I was arrested I used to be able to run about ten kilometers. Now, I cannot walk for more than ten minutes. My nerves are now swollen in my body. Swollen too.

We’ve been trying to understand why they only waterboarded al-Nashiri twice–and don’t claim it worked with him. These swollen nerves may be a clue. They don’t t rule out that he suffered other problems–such as a tracheotomy pursuant to some accident during waterboarding–but it does explain one effect his torture had on him.

Otherwise, the biggest news is that our government is now willing to admit they have admitted to being totally wrong about who Abu Zubaydah was.

They told me sorry we discover that you are not number three, not a partner even not a fighter.

Golly. If only they had read his diary or asked Noor al-Deen, they could have figured that out without waterboarding him 83 times.

If nothing else, though, the re-release of these may get more people to read them. They are fascinating and nauseating narratives, all four of them, so if you haven’t already read one or more of them, please take a look.

[Updated and changed time stamp]

CIA IG Report: To Be Released on June 19

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The detail that Abu Zubaydah was waterboarded 83 times in a month and Khalid Sheikh Mohammed got into the OLC memo via the CIA IG Report released May 2004. So, too, did the reports that CIA interrogators exceeded the guidelines laid out in the Bybee Two memo. And the conclusion that the torture couldn’t be said to have stopped any attacks? That was in the CIA IG Report, too.

Which is why the IG Report’s reported release–on June 19–might be big news.

Or, it might be 400 pages of mostly redacted content. 

In new responses to lawsuits, the C.I.A. has agreed to release information from two previously secret sources: statements by high-level members of Al Qaeda who say they have been mistreated, and a 2004 report by the agency’s inspector general questioning both the legality and the effectiveness of coercive interrogations.

The Qaeda prisoners’ statements, made at tribunals at the detention camp at Guantánamo Bay, Cuba, were previously excised from transcripts of the proceedings, but they will be at least partly disclosed by this Friday, according to a court filing. The report by the inspector general, whose secret findings in April 2004 led to a suspension of the C.I.A. interrogation program, will be released by June 19, the Justice Department said in a letter to a federal judge in New York.

Precisely how much the agency will disclose, however, remains to be determined, as the administration is clearly struggling to decide where to draw the line. In both cases, which involve separate Freedom of Information Act lawsuits filed by the American Civil Liberties Union, the documents are likely to be redacted to withhold information the C.I.A. still considers especially delicate.

Me? I’ll be pleasantly surprised (though not satisfied) if they release pages 85 though 91, which talk about the (in)efficacy of the program. It was in response to these six pages that at least some of Dick Cheney’s CYA documents were written.

And the detainee statements from their CSRTs? Maybe we’ll finally learn why Rahim al-Nashiri was only waterboarded two times.

The Context of the Torture Index

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I wanted to return to the torture index released to ACLU the other day to comment on what the CIA claims to have in terms of records.

First, remember what this index is. The April 21 order required CIA to turn over two things. 

  • Records "relating to the content" of the torture tapes "from the entire period of the tapes that were destroyed"
  • "Documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction"

The second bullet (referred to as Paragraph 4 material) is the stuff discussed in the recent John Durham squabble. The first bullet (referred to as Paragraph 3 material) is the stuff we got the other daya and which I’ll discuss in this post.

The May 7 order summarizes how CIA and ACLU agreed CIA would treat those records that described the content of the torture tapes.

In response to earlier orders, the CIA originally identified appropximately 3,000 documents potentially responsive to paragraph 3 of the Court’s April 20, 2009 Order. Those 3,000 records included "contemporaneous records," which were created at the time of the interrogations or at the time the videotapes were viewed, "intelligence records," which do not describe the interrogations but contain raw intelligence collected from the interrogations, "derivative records," which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations that, upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.

With respect to paragraph 3 of the April 20, 2009 Order, the parties jointly propose that the Government address the contemporaneous and derivative records, but not the intelligence records or the other records that ultimately proved to be unrelated to the interrogations or the videotapes. With respect to the contemporaneous and derivitive records, the parties jointly propose the following: 

  • May 18, 2009: The Government will produce a list of all contemporaneous records and all derivative records. The list will, to the greatest extent permissible on the public record (i.e., the list will not include classified information or information otherwise protected by statute), identify the date, sender, recipient, type, and subject matter for each record;

So the stuff we got the other day is one of three things:

  • Documentation made contemporaneously with interrogations that were videotaped
  • Documentation made contemporaneously to the viewing of the videotapes
  • Derivative records that summarize the contents of the contemporaneous record

Read more →