Mukasey’s Statement

Here’s Mukasey’s statement on the criminal probe into the torture tape destruction.

Following a preliminary inquiry into the destruction by CIA personnel of videotapes of detainee interrogations, the Department’s National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter, and I have taken steps to begin that investigation as outlined below.

This preliminary inquiry was conducted jointly by the Department’s National Security Division and the CIA’s Office of Inspector General. It was opened on December 8, 2007, following disclosure by CIA Director Michael Hayden on December 6, 2007, that the tapes had been destroyed. A preliminary inquiry is a procedure the Department of Justice uses regularly to gather the initial facts needed to determine whether there is sufficient predication to warrant a criminal investigation of a potential felony or misdemeanor violation. The opening of an investigation does not mean that criminal charges will necessarily follow.

An investigation of this kind, relating to the CIA, would ordinarily be conducted under the supervision of the United States Attorney for the Eastern District of Virginia, the District in which the CIA headquarters are located. However, in an abundance of caution and on the request of the United States Attorney for the Eastern District of Virginia, in accordance with Department of Justice policy, his office has been recused from the investigation of this matter, in order to avoid any possible appearance of a conflict with other matters handled by that office.

As a result, I have asked John Durham, the First Assistant United States Attorney in the United States Attorney’s Office for the District of Connecticut, to serve as Acting United States Attorney for the Eastern District of Virginia for purposes of this matter. Mr. Durham is a widely respected and experienced career prosecutor who has supervised a wide range of complex investigations in the past, and I am grateful to him for his willingness to serve in this capacity. As the Acting United States Attorney for purposes of this investigation, Mr. Durham will report to the Deputy Attorney General, as do all United States Attorneys in the ordinary course. I have also directed the FBI to conduct the investigation under Mr. Durham’s supervision.

Earlier today, the Department provided notice of these developments to Director Hayden and the leadership of the Judiciary and Intelligence Committees of the Congress. [my emphasis]

Some interesting points: First, note that ED VA, Chuck Rosenberg, asked to be recused from the investigation. That’s almost certainly because of the Moussaoui investigation, in which the tapes should have been turned over to Leonie Brinkema. But Mukasey has not recused himself for his involvement in Padilla (though he may well know that the tapes were taken after he approved Padilla’s arrest); Durham will report to the Deputy AG. I forget, do we have a DAG?

Also note who got an official notice of this: the Intelligence Committees (no doubt because they’re going to have to ask Durham before they offer Rodriguez or anyone else immunity, but also because Mukasey is trying to make up for his stonewalling in December), and CIA. No apparent official notice to the White House.

For the moment, this looks like an investigation primarily of CIA (otherwise, having DC USA Jeff Taylor oversee it might have worked), and not, specially, David Addington.

Update: From the WaPo, Michael Hayden and John Helgerson have recused themselves as well:

Hayden said in a statement today that he was recusing himself from any involvement in the new Justice investigation because of his past role in reviewing the tape destruction. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation," Hayden said.

CIA Inspector General John L. Helgerson announced that he also would recuse himself from the criminal inquiry to avoid a conflict of interest. Helgerson said he and his staff had "reviewed the tapes at issue some years ago," during the time when agency officials were debating whether to destroy them.

"During the coming weeks I anticipate describing fully the actions I and my office took on this matter to investigators from the executive and legislative branches," Helgerson said in a statement. "It is important to avoid the conflict of interest, or even the appearance of conflict of interest, that surely would arise if I were also involved in the ongoing investigation." [my emphasis]

If Helgerson’s conflict was so obvious (and it was), I wonder why he didn’t already recuse himself. Though given how long he has been fighting this battle with the CIA, I’m sure he wanted to nail them.

Also, when Helgerson says he "reviewed the tapes at issue," do you think he means he reviewed the copies of the tapes that were cabled back to CIA, he reviewed the actual tapes in the country where they purportedly remained, or just reviewed the general idea of the tapes?

Update: Conyers, who has served on HJC most of my life, notes what many of us have noted–this is an investigation that looks independent, but really isn’t.

While I certainly agree that these matters warrant an immediate criminal investigation, it is disappointing that the Attorney General has stepped outside the Justice Department’s own regulations and declined to appoint a more independent special counsel in this matter. Because of this action, the Congress and the American people will be denied – as they were in the Valerie Plame matter – any final report on the investigation.

Equally disappointing is the limited scope of this investigation, which appears limited to the destruction of two tapes. The government needs to scrutinize what other evidence may have been destroyed beyond the two tapes, as well as the underlying allegations of misconduct associated with the interrogations.

The Justice Department’s record over the past seven years of sweeping the administration’s misconduct under the rug has left the American public with little confidence in the Administration’s ability to investigate itself. Nothing less than a special counsel with a full investigative mandate will meet the tests of independence, transparency and completeness. Appointment of a special counsel will allow our nation to begin to restore our credibility and moral standing on these issues.  

62 replies
  1. pinson says:

    Didn’t the senate judiciary committee hold hearings on an asst. AG just before christmas? There was some guy up there getting questioned for a high level JD gig. He refused to comment on waterboarding just like Mukasey, IIRC. Mukasey’s managed to put himself in a pretty tangled position with his nomination testimony. If waterboarding isn’t torture, then why would it be criminal to destroy videotape evidence of waterboarding? Shouldn’t he be recusing himself?

    • emptywheel says:

      Actually, that was for DAG, Mark Filip, not AAG. But yeah, we have an acting but no permanent right yet, and the permanent in waiting also refuses to say anything about torture.

  2. emptywheel says:


    I’m asking LHP to comment on that, prob on her last post or something. I think it means that it’s designed to look like Fitz’ posting, but isn’t–he’ll still report up to Mukasey.

    I have a feeling that Mukasey has some sympathy for the Unitary Executive belief that all prosecutors have to be in the political line of control, which would explain why he’d do this. But, unless he knows that the Padilla evidence was not part of the interrogations taht were filmed (which is consistent with some–but inconsistent with other–reporting on this story), then it seems like he still has a conflict.

    • bmaz says:

      As I have said, the standard is “appearance of conflict”, not actual conflict itself. I fail to see how Mukasey does not have an appearance of conflict.

        • bmaz says:

          Yeah, yeah yeah. Hey, I admit I am terminally lame; but I have pulled out some resources and am working…

          I think it means that it’s designed to look like Fitz’ posting, but isn’t–he’ll still report up to Mukasey.

          I too will be interested to see what LHP has to lend here, but I think you have it about right. They want to co-opt the cache of Fitz, but this is strictly an in-house job, not a special prosecutor situation.

  3. emptywheel says:

    Here’s another question.

    What is Hayden talking about, “his past role in reviewing the tape destruction”? Just his review before he wrote a totally politicized letter to CIA’s employees?

    Loo Hoo

    I would imagine the Congressional investigation will go forward, but Congress will hopefully show great deference to Durham if he asks them not to immunize someone.

  4. LS says:

    “Helgerson said he and his staff had “reviewed the tapes at issue some years ago,” during the time when agency officials were debating whether to destroy them.”


    That sounds like he knew about or had seen the tapes originally, and then they went back and looked at them again to see if they should be destroyed when they became a potential legal liability.

    Afterall, how could you decide or debate whether they should be destroyed or not, if no had seen them. I think everyone involved during the period of the destruction debate actually watched the tapes to make a determination as to how potentially legally damaging they were, and it was determined they needed to be gone to cover their butts.

  5. BayStateLibrul says:

    Before Markasey starts this rerun… he should give us a status
    of the ongoing Gonzo investigation… How long will that take
    to finish?
    Why no updates?

  6. bmaz says:

    I have some concern on the statement depicting the problem only in terms of destruction. Not concern over the view as destruction being wrong at all, just not going far enough. Mary has been all over this; I have not been overly vocal because I thought it was kind of obvious, and I thought that the reason most discussed either concealment or destruction was not that they did not recognize the separate concepts as two different crimes, but merely that they were only talking about one area at a time. As we all dig deeper into the motivations and specifics on the torture tapes, I am starting to see that Mary was right to keep emphasizing the separate but dual nature of crimes committed here, because the rush to grasp the details is leaving the two conflated.

    Obstruction through concealment of evidence is one offense; obstruction through destruction of evidence is a separate and distinct offense. The distinction is critical in criminal misconduct motions. Generally, concealment of evidence leads to suppression of certain evidence and perhaps dismissal of some specific allegations, but the prosecution survives. However, the standard sanction for willful destruction of material evidence is dismissal of the prosecution. This is an extremely simplistic and general bit of info I relate here, and not intended to say what sanctions and/or remedies are appropriate to any tangential angle of the instant case; but is a decent analogy to demonstrate the two distinct offenses and the different implications they normally have.

    James Joyce – I assume that you mean “appearance of impropriety”, but yes that is the more general standard of which appearance of conflict, in conflict situations, is the subset.

    • LS says:

      So, in the case of the 9/11 Commission, who can now prove they asked for the material, the concealment of evidence would be what they are after, and the prosecution would not be dismissed? Is the fact that the 9/11 Commission has come up with evidence that they had asked for material, the reason for the conclusion to investigate with an outside prosecutor?

      Does the destruction of material evidence, as in give us any evidence regarding such and such in a court case…but they can’t, because they don’t exist anymore…end up as a sort of no body, no crime? Is that what you are saying?

  7. chetnolian says:

    Hey guys, for us fascinated outsiders, I have two questions. One, has anyone done any work on Durham? Is he a potential Fitz or a soft touch for the system? Two, at what point in time(about now maybe?) from the point of view of the GOP does it look better to try to find out some truth, as against not upsetting the Unitary Executive? Is power at last draining away a bit?

    • bmaz says:

      at what point in time(about now maybe?) from the point of view of the GOP does it look better to try to find out some truth, as against not upsetting the Unitary Executive?

      Well now, that is the 64 gazillion dollar question isn’t it?

  8. Loo Hoo. says:

    bmaz, what about the actual torture itself? Certainly Addington’s okays don’t really make it legal?

    Is the torture part of the equation?

    • bmaz says:

      Sure; everything these clucks have done is pretty much a crime, I was merely referring to the issue of the tapes themselves.

      Neil @20 – No; and some of us have never been totally down with the thought that James Comey is all that he is cracked up to be in the first place.

    • Neil says:

      I think Mukasey believes legal opinions authored by OLC protect the executive from prosecution even when the opinion was wrongly concluded and poorly reasoned.

      • bmaz says:

        Well, that is where I violently diverge from the not all that Honorable Judge Mukasey. When OLC opinions are intentionally crafted in bad faith out of complete bullshit, contrary to historical law, precedence and practice, specifically to give de minimis cover for blatant illegal and unconstitutional behavior; I don’t believe that gives the executive protection for diddly shit. String em up I say.

        LS @27 – that was an analogy pertinent to a standard criminal prosecution setting, which is not what we have here at this point. My only point was to emphasize that concealment and destruction are two different concepts.

      • Hmmm says:

        I think Mukasey believes legal opinions authored by OLC protect the executive from prosecution even when the opinion was wrongly concluded and poorly reasoned.

        That’s interesting, because in his book, Goldsmith himself wasn’t so sure. He seemed concerned that operatives acting under cover of a truly flaky OLC opinion could well have massive exposure instead. Which fits — recall that his big acts were to try to “fix” the previous iffy work of Yoo and Bybe

        I marked the page because of a previous exchange between EW and myself about this question so I could go root it out, if anyone cares.

  9. Neil says:

    They want to co-opt the cache of Fitz, but this is strictly an in-house job, not a special prosecutor situation.

    Craig Morford is no James Comey… or is he?

  10. Mary says:

    But Mukasey has not recused himself for his involvement in Padilla (though he may well know that the tapes were taken after he approved Padilla’s arrest);

    What do you mean by “the tapes were taken”?

    Looks as if Mukasey is nailing this down tight as only a very limited mandate situation (which was a part of what hurt Fitzgerald’s authority) where only the CIA is to be investigated, and not the knowledge of DOJ or FBI (remember all those dogs that weren’t barking) and the knowledge of officials like Mueller, his counsel, the AG, DAG, counterterrorism crews, etc. as to torture and obstrucion at DOJ and/or the failure of DOJ to respond to the courts and the American people with candor.

    Conyers is dead on with

    Equally disappointing is the limited scope of this investigation, which appears limited to the destruction of two tapes.

    but it’s also just as disturbing that Mukasey is framing this as a CIA only investigation. No WH or OVP or NSC or State Dep or DOJ references.

    • klynn says:

      Then Conyers knows what he can do above and beyond this investigation…He better do it then. He cannot state disappointment and then do nothing…

    • emptywheel says:

      Most reports of the waterboarding place it after August 1, 2002. Padilla was arrested in June. And there are very specific accounts that say Zubaydah gave up Padilla (and gave most of his useful intell) before they used waterboarding on him.

      All those reports could be CIA spin. But if they’re not, Zubaydah’s evidence, at least, didn’t come through waterboarding.

      • bmaz says:

        Even if that is true, I will bet dollars to donuts that (knowingly or unknowingly, the CIA and the Administration may not have told them everything) the DOJ relied on the results of the torture and waterboarding of Zubaydah for corroboration of the earlier Zubaydah info when making their avowals to the courts, including Padilla.

        • emptywheel says:

          Right. But my context had to do with Mukasey. If the reporting is correct, the evidence Mukasey saw did not rely on torture–at least not waterboarding. AFAIK, Mukasey never had reason to review the evidence after that.

          Of course, the fact that we can’t rely on newspaper accounts from self-interested CIA leakers means there’s still the appearance of a conflict. But there may be no real conflict–and I imagine Mukasey is the kind of person who sets his bar for conflict pretty high.

      • rxbusa says:

        So are you saying that Mukasey doesn’t have to recuse himself based on Padilla case because shitty info obtained from torture was obtained later than is relevant?

        • rxbusa says:

          uhoh. Shoulda kept reading…got the answer later in the thread. Thanks for the sharp analysis, as always!

  11. chetnolian says:

    I’m sure that is what he is doing, but if memory serves these things have a habit of getting out of hand. Anyone remember a little burglary somewhere?

  12. Mary says:

    bmaz @ 15 –

    Obstruction through concealment of evidence is one offense; obstruction through destruction of evidence is a separate and distinct offense.

    You say it so purty. The other thing that makes me hmmmmmmm is that there may have been a lot of different parties on the obstruction through concealment (and violation of court order) than the destruction (which is just CIA apparently). If FBI knew about torture evidence re: Zubaydah and Binyam Mohammed, for example, and kept it from defense lawyers – – some of the armor loses it’s nice Knight shiney-ness. But if the mandate is to only investigate the CIA and only on destruction – not real feel good stuff.

  13. Mary says:

    bmaz – from a below thread comment, about Rodriguez and insurance, I think I have heard (but do not have link to) info that he was involved in the Iran Contra investigations, but was not one of the annointed/protected ones and was told he had to go get his own lawyer. I don’t swear to that at all, but I think I have heard it somewhere.

  14. Mary says:

    28 – one thing the dickering around on a very limited mandate piece of crap does is leave it wide open for a new administration to appoint an special counsel with a broad broad mandate and an outside special counsel checkbook to go to work. Let’s hope. Ok, hope sux and Dems always disappoint. So let’s not hope, but let’s remember it as an option to push for if it stays open as an option.

    • TheraP says:

      Thank you, Mary, for that little bit of hope.

      I think we just need to keep this alive and beat the drum over and over.

      Keep digging. Somehow all this digging may have played a role already.

  15. LS says:

    So Congress is going to have to issue subpoenas to Miers, Gonzo, etal…again; and they will refuse to respond, but perhaps this time they will enforce the inherent contempt card, and get these people where they need to be.

  16. LS says:

    2007 was the year of the wimps; 2008 needs to be the year of balls to the walls..too bad it’s the same damn people.

  17. Mary says:

    32 – thank you klynn

    bmaz – I’m with you on OLC autorizations to commit crimes. Here’s how I see it. You either do or do not believe that this is a nation of laws, not men. If you believe it, then the President is not allowed to break the law or authorize others to break the law. OLC is a lesser entity than the President and has, per Whitehouse, held itself out as being completely subject to the President’s interpretation of the law. So if they are a subordinate, inferior entity, who claim that they can not make independent determinations of law, but instead must defer to the President’s self declaration that his lawbreaking is authorized “because he is President” in effect, then the OLC opinion isn’t worth the paper it is written on, whatever the prior tradition.

    If the President can’t “authorize” torture, neither can the OLC in a specious opinion. And the OLC has no statutory nor Constitutional power. Again, it derives from the grant to the AG and so you either believe that the AG can authorize clearly criminal behavior, or that he cannot. On that front, I think there is a NY Bivens action, involving Aschcroft and a boatload of others, where Judge Gleeson issued an opinion that may have sent some frissons of fear through many bc he was opening up discovery (with post 9/11 roundups and treatment here – not overseas) to policies that DOJ defendants like Ashcroft knew about and endorsed with respect to the Bivens actions.

    I’m guessing the result of that was that most of DOJ was really happy to hear that the CIA had destroyed the tapes documenting the things done to people under OLC’s solicitations.

  18. Mary says:

    37 – I thought that’s what you meant, but I wasn’t sure.

    I did notice how careful they were, in all these stories that have almost never mentioned Padilla, to work in the reference to the fact that Zubaydah “gave up” the Padilla info in passing and not under “enhanced interrogation.” I think that was very calculated bc they really do know Padilla is a case that will bite them in the butt, but waterboarding notwithstanding I think Coleman’s description indicates that “enhanced” tactics began earlier and if the tapes did include, as has been suggested, hundreds of hours of interrogation/observation, then it’s hard to say how far back they go.

    But yes, they were careful to make sure that no one is claimed to have been waterboarded before the cover of the Bybee memo. Just like for a long time we were told that all “the program” came about as a ticking time bomb response to 9/11 – but then those pesky earlier dates started creeping out.

    Suskind’s book indicates a lot of other torture – outside of waterboarding – took place with Zubaydah, starting pretty immediately after they stabilized him and the President went public with his statements that we had captured this real important guy. From the descriptions, it sounds as if Zubaydah was tortured before the arrest, but also that all leaks are being very careful to move references to waterboarding (which is a known violation of law – already on the books and something OLC cannot override by internal classified memo) are carefully moved to post-date the Bybee solicitation memo. I don’t know whether that means, one way or the other, that waterboarding didn’t take place until then, and I am pretty positive that enhanced interrogation took place before then – and find it equally unique that they are making sure that the one piece of info they give out on Padilla is that he was not fingered during enhanced interrogation, but rather, just as a bye the bye thing. Wouldn’t someone have to be EXTREMELY familiar with Zubaydah’s treatment to know that? That “anonymous” source, so clued in to Zubaydah’s treatment, but no words on anything that was done to him or that was said by him, except that he wasn’t waterboarded until post-Bybee and he gave Padilla up in passing and not while being tortured.

    And then there’s Binyam Mohammed and the pictures that were taken of him when he was put on a Ghost Plane from Morocco. Wonder whatever happened to them.

  19. Mary says:

    40 – the evidence Mukasey saw did not rely on torture

    It’s my understanding that the evidence Mukasey saw was just the FBI declaration. Also, that Padilla’s lawyers spelled out non-waterboarding torture they believed was going on from the time of Zubaydah’s capture (things like withholding pain meds until he said what they wanted him to say IIRC) and those where things that the FBI had to have known about at that point in time, bc Coleman and other had raised issues. fwiw.

    But yes, the leaked info on Zubaydah has seem very carefully tailored on the Padilla front to me and that’s just another reason why I think its a big problem for them and they know it.

    • emptywheel says:

      Well it’s also possible that those reports are correct and Suskind’s anonymous sourcing is not (I’ve heard that one at least one other occasion, his story doesn’t hold up).

      I don’t know–I’m just saying that there is one story, at least, that says Zubaydah giving up Padilla did not involve torture–we don’t know, one way or another. Yes, I’m suspicious, but not so suspicious that I discount out of hand a lot of sourcing in one direction. We don’t know, one way or another.

      • bmaz says:

        Experts in the field will tell you that pretty much once you torture, or otherwise dehumanize a subject through physical pain or fear and hopelessness (and the withholding of pain medication to a subject in the state Zubaydah was reported to be in would sure seem to qualify), all the evidence procured from that point on is the result of said torture and is presumptively unreliable. Even if not torturing at the the exact moment the subsequent info is obtained, the threat of more torture and recollection of the previous torture produces the same effect and resulting unreliability.

        • emptywheel says:

          Right, of course. But experts don’t say that if you torture someone on August 5 it makes everything that was said in May suspect. That is the claimed case here.

          • emptywheel says:

            Or let me spell it out again.

            The most often told story (which doesn’t mean it was correct) says that torture started after August 1.

            If that’s true (I’m not saying it is), then it means that Zubaydah’s evidence offered in April and May and June–the only months that preceded Padilla’s arrest–was not gained through torture, nor after torture had already happened. I agree that everything gotten from Zubaydah post August uncontestedly appears to have been gained through torture, and therefore is unreliable. But that doesn’t, by association, make hte pre-arrest information unreliable if, in fact, it was not gained through torture.

            • bmaz says:

              I, of course, have no knowledge of what really happened, or in what sequence; but my statement above was somewhat rooted in the thought that Zubaydah was alternatively denied and given pain medication while critically wounded right after he was captured. If this is true, I would suggest this is torture in and of itself and the “dehumanization” had already begun, thus bringing into question the reliability of any subsequent information extracted. Clearly, the modalities of torture were increased thereafter; but if this is true, I am not sure I can write off the early Zubaydah info as possessing any indicia of reliability for having been obtained “before torture”.

  20. oldtree says:

    I thought that this fellow Mukasey didn’t believe methods described by the Geneva Convention were torture, but he is hiring a prosecutor to investigate torture, that may be connected to…. that loves torture…….but he doesn’t and can’t call it torture.

    rats. justice served again. Do we have yet another independent prosecutor that can get one guy for obstruction and perjury while leaving the entire oval office unscathed?

    served, cold. wet. dead.

  21. MrJJ says:

    AG Mukasey has a conflict of interest problem already, and should recuse himself and appoint a Special Prosecutor (someone from outside the DOJ)

    Jose Padilla’s lawyers argued before the Florida Federal Court that Abu Zubaydah was tortured into saying Padilla was an al Qaeda associate. The DOJ dismissed Padilla”s allegations as “meritless,” asserting Padilla”s legal team could not prove that Abu Zubaydah had been tortured. Well, it”s clear now that they certainly COULD have, if the tapes of the interrogations of Abu Zubaydah had been made available!

    Now here is where Mukasey’s role comes into question. U.S. District Judge Mukasey, now attorney general, was the one who signed the warrant used by the FBI to arrest Padilla in May 2002. Court records show the warrant relied in part on information obtained from Abu Zubaydah”s interrogation. So we have a problem Houston.

    The then Judge Mukasey could only issue a warrant based upon legally obtained evidence, and confessions under torture are certainly not “legally obtained”. So either Mukasey was misrepresented the evidence, and would be liable to be potentially a party in those who were presented with “perjured evidence”; or he knew that torture was used in obtaining the confession and ignored it.

    In either case he is unsuitable to run an investigation, as it, inevitably, involved himself. Thus a Special Prosecutor is necessary… Odds that this will happen? Zero percent.

    • klynn says:

      Excellent points. We should all send letters to our reps noting this information and CC our letters to the DoJ and MSM.

      Perhaps we can remind Conyers, Leahy and Whitehouse about these points of conflict and call for a Special Prosecutor?

  22. Mary says:

    Well it’s also possible that those reports are correct and Suskind’s anonymous sourcing is not

    That’s definitely a possibility, but the point I was trying to make is that torture taking place before August is not mutually exclusive with waterboarding not taking place until August, bc waterboarding is just one thing that might be torture.

    Right, of course. But experts don’t say that if you torture someone on August 5 it makes everything that was said in May suspect. That is the claimed case here.

    ??? Who claimed that?

    Prior to August – in June when there was a motion to vacate, they were alleging torture and medicated state. Knowing that handling of a detainee included waterboarding, even if that was after the date of arrest, goes to the credibility of allegations of torture in general, but I don’t think anyone is saying what happened in August is determinative of the validity of the arrest warrant in May. I certainly wasn’t saying that.

    As re: Suskind’s sourcing that led me to say, “From the descriptions, it sounds as if Zubaydah was tortured before the arrest” that seemed to have been corroborated (which is different from confirmed *g*) by this report in the NYT in 06…..&_r=1

    which indicates that “within days” after being taken, Zubaydah was

    …subjected to coercive interrogation techniques — he was stripped, held in an icy room and jarred by earsplittingly loud music — the genesis of practices later adopted by some within the military, and widely used by the Central Intelligence Agency in handling prominent terrorism suspects at secret overseas prisons.

    At times, Mr. Zubaydah, still weak from his wounds, was stripped and placed in a cell without a bunk or blankets. He stood or lay on the bare floor, sometimes with air-conditioning adjusted so that, one official said, Mr. Zubaydah seemed to turn blue.

    That also seems to corroborate that when Padilla was referenced by Zubaydah, it was not because there was a ticking time bomb threat (and I would buy that the very first reference may have been during FBI questioning) but instead just as a reference to a crazy American wannabe.

    Mr. Zubaydah also identified Jose Padilla, an American citizen who has been charged with terrorism-related crimes.
    But Mr. Zubaydah dismissed Mr. Padilla as a maladroit extremist whose hope to construct a dirty bomb, using conventional explosives to disperse radioactive materials, was far-fetched. He told his questioners that Mr. Padilla was ignorant on the subject of nuclear physics and believed he could separate plutonium from nuclear material by rapidly swinging over his head a bucket filled with fissionable material.

    But the NYT article indicates very soon, within days and while Zubaydah was still weak from his wounds, the CIA team started torture and they started torture with an agenda. They believed that

    “He was lying, and things were going nowhere,” one official briefed on the matter said of the early interviews.

    And more than that, the article says they believed

    “It was clear that he had information about an imminent attack and time was of the essence.”

    So consistent with everyone’s stories (even though none of them may be the truth) it would be possible that a) Zubaydah gave up the name of Padilla in FBI interrogation where torture was not involved, but in the context of a guy who thought he could swing buckets to separate out plutonium. Not as a guy with a current imminent threat dirty bomb plot. But then, within days, CIA interrogators, who were convinced there was an imminent threat started torturing him to confirm their belief and he then put Padilla in the frame of dirty bomber, about to blow up NYC.

    Or not. Could have happened all kinds of ways – I just find it very interesting how careful they have been anytime something that affects the Padilla case is mentioned. And the hundreds of hours of tape couldn’t all have been waterboarding could they? Seems unlikely.

    Just for context, here the Vanity Fair piece on the psychologists involved…..ntPage=all

    From the earlier conversations about whether or not people were doing this and talking about sports (and who would ever know one way or the other without videotapes) and also with respect to the “clinical” references, I thought these were interesting passages:

    …psychologists such as Mitchell and Jessen play two crucial roles. They screen the trainers who play interrogators … If a trainer emerges from an exercise unable to smile, for example, he is viewed as “too into the problem,” says Dr. Lefever, and is likely to be removed

    and later, when talking about DOD interrogations guidelines:

    In a bizarre mixture of solicitude and sadism, the memo details how to calibrate the infliction of harm. It dictates that the “[insult] slap will be initiated no more than 12–14 inches (or one shoulder width) from the detainee’s face … to preclude any tendency to wind up or uppercut.”

    But with respect to the Zubaydah interrogation and the interrogators, the Vanity Fair report is that:

    When …the C.I.A. team arrived in Thailand, they immediately put a stop to the efforts at rapport building (which would also yield the name of José Padilla, an American citizen and supposed al-Qaeda operative now on trial in Miami for conspiring to murder and maim people in a foreign country).

    Mitchell had a tougher approach in mind. The C.I.A. interrogators explained that they were going to become Zubaydah’s “God.” If he refused to cooperate, he would lose his clothes and his comforts one by one. At the safe house, the interrogators isolated him. … As Zubaydah clammed up, Mitchell seemed to conclude that Zubaydah would talk only when he had been reduced to complete helplessness and dependence. With that goal in mind, the C.I.A. team began building a coffin in which they planned to bury the detainee alive.

    And that is all described as happening right away when the CIA team got to Thailand. Apparently when there was a huge response to the coffin scheme – I’m wondering if that is when the FBI threatened to arrest and were pulled out but who knows — “the C.I.A. had a ready rejoinder: the methods had already been approved by White House lawyers.”

    Note “White House lawyers” and not DOJ/OLC. But that’s an article by someone much more focused on the psychologists and their responsibilities, so that could be loose language. Or it could be that things were done for several months on the say so of “White House lawyers” (or maybe OVP lawyers?) separate and apart from the OLC memos.

    • emptywheel says:

      I’m not disputing there are sources that say Zubaydah was treated to coercive interrogation right away. I’m just saying that there are also sources that say he wasn’t. I don’t claim to know which of those is true, so I will maintain that, if the first is true, then the likely reason for destroying the tapes is not even OLC had signed off on them (though that doesn’t explain al-Nashiri’s tapes). However, if the latter is true, then it suggests they’re not being “careful” about their statements about Padilla, they’re being accurate.

      I’m not saying one or the other is true. I’m saying, in the face of conflicting data, I’m not willing to presume allegations by completely ignoring contrary information. One thing that still needs to be explained, though, in the first scenario, is why you destroy al-Nashiri’s tapes, too.

      And as for the hundreds of hours–reports have already said the tapes also taped Zubaydah sitting in his cell. That adds up to hundreds of hours pretty quickly.

  23. Mary says:

    49 – EW, what says that torture didn’t start until after August and is that in the waterboarding context, where they are only acknowledging waterboarding, of all the harsh tactics, to be one that might be torture?

    The reports in Vanity Fair, from Suskind (with some named sources), and from NYT and Johnson all seem to indicate that things got rough very fast – within days – of the capture. Who knows which is right, but most of what I thought I saw on “after August” was focused on waterboarding.

  24. Mary says:

    Oh well, have to take off so I won’t see the answer until tomorrow anyway and by then this will be epu territory.

  25. bmaz says:

    Ah, I see Mary pretty much covered my last comment and I didn’t see it before typing. I don’t know either, and yes you are right to not make presumptions…. As to Nashiri, it is my guess that both of these tapes were “special” not just because they showed torture, but the content coming out of the process, and almost certainly the “suggestions” the interrogators were indicating they wanted the subjects to regurgitate.

  26. emptywheel says:

    For the story that Zubaydah was not tortured right away (with all the caveats abotu pain medication accepted), there’s this story from Pincus and Eggen:

    There is little dispute, according to officials from both agencies, that Abu Zubaida provided some valuable intelligence before CIA interrogators began to rough him up, including information that helped identify Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11 attacks, and al-Qaeda operative Jose Padilla.


    During his first month of captivity, Abu Zubaida described an al-Qaeda associate whose physical description matched that of Padilla, leading to Padilla’s arrest at O’Hare International Airport in Chicago in May 2002. A former CIA officer said in an interview that Abu Zubaida’s “disclosure of Padilla was accidental.” The officer added that Abu Zubaida “was talking about minor things and provided a small amount of information and a description of a person, just enough to identify him because he had just visited the U.S. Embassy” in Pakistan.

    Other officials, including Bush, have said that during those early weeks — before the interrogation turned harsh — Abu Zubaida confirmed that Mohammed’s role as the mastermind of the Sept. 11 attacks.


    Whether harsh tactics were used on Abu Zubaida prior to official legal authorization by the Justice Department is unclear. Officials at the CIA say all its tactics were lawful. An Aug. 1 Justice document later known as the “torture memo” narrowly defined what constituted illegal abuse. It was accompanied by another memo that laid out a list of allowable tactics for the CIA, including waterboarding, according to numerous officials.

    And note that Coleman is one of the people saying the interrogations were “traditional” at the beginning:

    “I don’t have confidence in anything he says, because once you go down that road, everything you say is tainted,” Coleman said, referring to the harsh measures. “He was talking before they did that to him, but they didn’t believe him. The problem is they didn’t realize he didn’t know all that much.”


    Coleman said reports of Abu Zubaida’s statements during his early, traditional interrogation were “consistent with who he was and what he would possibly know.”

    Given their claims about the widespread agreement in both agencies, there seems little doubt that COleman believes Zubaydah described Padilla without torture.

    This NYT story also describes Zubaydah’s treatment as getting progressively harsher.

    More significant, interrogations of Abu Zubaydah had gotten rougher, with each new tactic approved by cable from headquarters. American officials have said that Abu Zubaydah was the first Qaeda prisoner to be waterboarded, a procedure during which water is poured over the prisoner’s mouth and nose to create a feeling of drowning. Officials said they felt they could not risk a public leak of a videotape showing Americans giving such harsh treatment to bound prisoners.

    I need to find it, but an early version of Mazzetti’s work on this uses the August date.

  27. bmaz says:

    Oh, I completely understand; and don’t necessarily disagree with you in the least. All I am saying is that, from my work with experts (and there are two big caveats to that too; namely, it has been some time and I am somewhat channeling what I think they would say, but I am pretty darn sure this is what they would say), if it is indeed true that the alternate granting and withholding of pain medication was used as an initial questioning technique, the die was cast as to reliability at that point only to degrade further with the increasing levels of dehumanization. I can easily see why the spooks and other interrogators and administration officials would not consider the pain medication bit to in fact be torture, but I fully believe the experts would.

  28. Mary says:

    56 – I agree we don’t know what to believe, but I had never seen anything that said there was no harsh interrogation before August, so I wondered about that. Coleman does say that Padilla’s name was given up early, in a scene where torture was not a part of the scenario – but that was in connection with giving his name up as a crazy, incompetent, not as an imminent threat. But within days of the FBI discussions, also according to Coleman’s sourcing (if you want to believe him on the one point – which I tend to do) Zubaydah was also being subjected to torture and per the “Rosarch and Awe” article, that was under the auspices and approvals of WH lawyers (not CIA or DOJ lawyers). Those kinds of approvals don’t have even the cache of a corrupt, immoral OLC opinion, so I just wonder if that reporting is true.

    For the torture issues, though, there are lots of different evidentiary issues (such as whether or not evidence of torture at a later date makes more credible allegations of torture at an earlier date, or evidence of torture against one detainee makes more credible evidence of torture against another detainee) and there are several different operative dates where info was offered up that could have been tainted by torture and where there could have been duties of disclosure and/or duties to protect and produce evidence: 1) the arrest warrant issuing; 2) the Bush enemy combatant order and USAtty helping kidnap organize the transfer of the detainee out of court jurisdiction; 3) the responsive pleadings filed in NY and the Mobbs declaration; 4) the pleadings and declarations filed in So Car; 5) the pleadings and declarations filed in the 4th Circuit; 6) the June 2005 Press Conference; 7) the oral and written arguments to the Sup Ct (btw – Clement assured the Sup Ct based on all info available to all of the DOJ that we don’t torture or do things like torture) and then in the Florida proceedings.

  29. emptywheel says:


    First of all, my point in this thread was a narrow one: whether Mukasey had a real (as opposed to perceived) conflict, having signed the Material Witness warrant leading up to Padilla’s May 8 arrest. Coleman appears to agree, given the claim that “there is little dispute” about the early interrogations, that the first month of interrogation was “traditional.” And even valid, given what he said to Pincus and the reported “lack of debate” that he gave up useful intelligence.

    And frankly, Suskind actually supports the claim that Zubaydah went at least a month without being tortured.

    Zubaydah’s injuries–gunshot wounds to the leg, groin, andabdomen–had been successfully treated by the finest US physicians in late April and early May. The doctors repaired internal bleeding, a fracture, and organ damage.

    He was stabilized by mid-May, and thus, ready.

    Yes, there’s still a debate about whether torture started before August or not (and I wouldn’t doubt that they were doing somethign before August). But it appears that Zubaydah was not tortured until several weeks after Padilla was arrested.

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