Is There a 2003 Waterboarding Memo We’re Missing?

Michael Hayden said something that confused me today on Fox News. When asked whether he thought waterboarding is torture, he replied simply that DOJ had said it was not.

Question: Are you satisfied that waterboarding is not torture?

HAYDEN: I’m satisfied that the Justice Department, in a series of opinions — ‘02, ‘03, ‘05 — said that it was not. Now…

See, we know that DOJ addressed waterboarding specifically in 2002 and 2005 in the memos released last week. 

But 2003?

Yes, there is one I, at least, have forgotten. The one in which the White House signed off on waterboarding, even after they had waterboarded KSM 183 times in a month. 

White House
Interrogation of prisoners

 Here’s the WaPo’s description of this 2003 memo, from last year when we were all trying to elect Barack Obama President. 

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — documents prompted by worries among intelligence officials about a possible backlash if details of the program became public.

The classified memos, which have not been previously disclosed, were requested by then-CIA Director George J. Tenet more than a year after the start of the secret interrogations, according to four administration and intelligence officials familiar with the documents. Although Justice Department lawyers, beginning in 2002, had signed off on the agency’s interrogation methods, senior CIA officials were troubled that White House policymakers had never endorsed the program in writing.

The memos were the first — and, for years, the only — tangible expressions of the administration’s consent for the CIA’s use of harsh measures to extract information from captured al-Qaeda leaders, the sources said.

Gosh, that would be an interesting memo to see, wouldn’t it?

(Updated entirely to make sensible after I discovered I’m a bone-head.)

59 replies
  1. Rayne says:

    Hey, no problem; I have no freaking idea how you are keeping all of this straight, considering the prodigious amount of reading you’ve been doing.

    Thank goodness for History Commons — but I’m confused even going through the breadth of their collection.

    It looks like Yoo issued not one but two documents in 1Q2003, the first requested by Pentagon counsel William Haynes from OLC after Alberto Mora threatened to sign a complaint about treatment of detainees at Gitmo. What I don’t recall is whether there was any mention of waterboarding, or if this only addressed other treatment. I can’t readily find any reference to it, either.

    • Peterr says:

      I think you nailed, Rayne.

      In December 2002, Mora became aware of the interrogation practices at Gitmo, and he (and other JAGs in NCIS) began rattling some cages high up in the Pentagon. On July 7, 2004, Mora prepared a lengthy timeline of what followed, and delivered it to the Navy’s IG.

      Some relevant excerpts . . .

      On January 17, Rumsfeld established a Working Group “to develop recommendations by January 29 on detainee interrogations.” Says Mora: “Early in this process, the Working Group was advised that the Office of Legal Counsel (OLC) in the Department of Justice would be developing a comprehensive legal memorandum that was to serve as definitive guidance on the issues addressed by it.”

      But the key entry is this:

      18 Jan – 29 Jan 03

      This was the principal period for the Working Group activities. Sometime during this period, OLC delivered its draft legal memo on interrogation techniques (the “OLC Memo”) to Air Force GC Walker, the chairperson of the Group. Although the lengthy memo covered many issues and did so with seeming sophistication, I regarded it as profoundly in error in at least two central elements. First, the memo explicitly held that the application of cruel, inhuman, and degrading treatment to the Guantanamo detainees was authorized with few restrictions or conditions. This, I felt, was a clearly erroneous conclusion that was at variance with applicable law, both domestic and international, and trends in constitutional jurisprudence, particularly those dealing with the 8th Amendment substantive due process protections that prohibited conduct “shocking to the conscience.” And second, the memo espoused an exteme and virtually unlimited theory of the extent of the President’s commander-in-chief authority. A key underpinning to the notion of the commander-in-chief authority was wrongly articulated because it failed to apply the Youngstown Steel test to the Guantanamo circumstances. If applied, the test would have yielded a conclusion that the ommander-in-chief authority was probably greatly attenuated in the non-battlefield Guantanamo setting. In summary, the OLC memo proved a vastly more sophisticated version of the Beaver Legal Brief, but it was a much more dangerous document because the statutory requirement that OLC opinions are binding provided much more weight to its virtually equivalent conclusions.

      Soon upon receipt of the OLC Memo, the Working Group leadership began to apply its guidance to shape the content of its report. As illustrated below, contributions from the members of the Working Group, including OGC, began to be rejected if they did not conform to the OLC guidance.

      The absence of Youngstown? No one could have anticipated . . .

      Mora’s wiki entry says about this:

      the Working Group was provided with a legal brief from the Department of Justice Office of Legal Counsel (OLC), and told they should follow its guidance. This was the same brief that later became infamous as the “Torture Memo”, largely written by OLC deputy director John Yoo.

      Moving on in the timeline to June 27:

      I read in the Washington Post[13] (Att 21) that Mr. Haynes had written a letter to Sen. Patrick Leahy declaring that it was the policy of the Department of Defense, in essense, never to apply torture or inflict cruel, inhuman, or degrading treatment on its prisoners or detainees. I regarded the letter (Att 22), which was dated June 25, 2003, as the perfect expression of the legal obligations binding DOD and the happy culmination of the long debates in the Pentagon as to what the DOD detainee treatment policy should be.

      I wonder . . . with all this pushback from Mora and the military service GCs, did OLC re-write something, so that Haynes could tell his lawyers “we’re doing it differently now” and keep them from stirring up more trouble?

      Yoo’s wiki entry lists a number of Yoo’s OLC opinions directed to Haynes , including this one from March 2003.

  2. JimWhite says:

    Don’t go berating yourself too much, EW. After all, you still found the reference to the memo before anyone else here…

    Thanks again for your tireless efforts on the memos. Great work!

  3. Mary says:

    Yep, not only that memo, but also the DOJ’s crim div “investigation” that the article references:

    After learning about waterboarding and similar tactics in early 2002, several White House officials questioned whether such harsh measures were “effective and necessary . . . and lawful,” Rice said. Her concerns led to an investigation by the Justice Department’s criminal division into whether the techniques were legal.

    And this advice from Ashcroft – which you’d think she would have wanted in writing:

    “I asked that . . . Ashcroft personally advise the NSC principles whether the program was lawful,” Rice wrote.

    Despite the 8-02 memo, in “the CIA requested written approval of its policy, in June 2003″ and Rice has supposedly also had a crim investigation of the program. And there had been the Sept 02 torture field trip to GITMO and the breifing to Addington and the WH that a lot of the detainees at GITMO were mistakes. What a mess. But what I’d really like to see is the crim div investigation.

    One thing I do think is interesting in the memos that have been released is that they are addressed only to Rizzo. No cc to Tenet.

  4. emptywheel says:

    Yeah, Tenet covered his ass.

    And just as importantly Tenet had no plausible deniability that the ”facts” Rizzo had presented to OLC were totally bullshit. Tenet KNEW that there were doubts about AZ’s sanity and value. But he had to give George what he wanted. So he had Rizzo do it, I bet, without telling him that the CIa was having him pass lies onto OLC.

  5. perris says:

    let’s be clear here, we cannot try people for the practice of water torture and then claim that same water torture is not torture.

    I also wish the progressives would stop playing their game, “water boarding” is far too benign a term and description, rather, “pouring water down your throat till you experience the throws of death, at times dying and being brought back to life, only to revisit the process again”

    or something equally precise, rather then the walk in the park sounding “waterboarding”

    • Nell says:

      ‘drowning torture’ is short and accurate.

      (And it’s ‘throes’, not ‘throws’, but who’s counting?) ;>

  6. earlofhuntingdon says:

    These boys kept looking for more and more cover for that appendage swinging naked in the breeze. I don’t think they found enough.

  7. WilliamOckham says:

    Uh, I hate to say this, but you were right the first time. That memo from June 2003 can’t be what Hayden was talking about. He was specifically addressing memos from the DOJ addressed to the CIA regarding interrogations. There’s no known memo from 2003 that fits that description. There are some possibilities from 2004, but I don’t think that’s what Hayden was talking about.

    There was a memo in July 2004 but that was when Jack Goldsmith was on his way out the door. He probably didn’t say that waterboarding wasn’t torture. Knowing Goldsmith, he probably avoided the issue entirely. Levin’s December 2004 memo kinda sorta said waterboarding might not be torture, but Hayden wouldn’t have liked that one. In fact the May 2005 memos were all about returning to the Bybee/Yoo position (’anything goes’).

    Maybe Hayden mispoke, but I doubt it.

    • cinnamonape says:

      Question: Are you satisfied that waterboarding is not torture?

      HAYDEN: I’m satisfied that the Justice Department, in a series of opinions — ‘02, ‘03, ‘05 — said that it was not. Now…

      Hayden specifically left out 2004 in his roster of Memos that said “waterboarding is not torture”. Odd, if one is listing memos one would either miscount by including a consecutive year…not take one in the sequence out. Could it be there is an additional memo in 2004 that we don’t know about that detailed the criminality of “waterboarding”? That would require a “response” in 2005?

      • Rayne says:

        Hayden ignored this one:

        May 7, 2004: CIA OIG draft report on interrogation techniques. Though this document is heavily redacted, reports say the investigation found interrogation techniques constitute cruel and inhuman treatment.

        And this one:

        December 30, 2004: Daniel Levin writes new torture memo (he’s the guy who waterboarded himself so he could prove it was torture).

        See EW’s Torture Tape timeline over at the righthand side of her site.

      • cinnamonape says:

        AHA! WilliamOckham’s Razor Mind already found (#23) that memo(s) in the sequence! Probably the CIA’s IG report or Goldsmith’s.

  8. emptywheel says:

    Oh I don’t think he misspoke.

    I think this one MIGHT count–he would have known about it if it came at the demand.

    My logic that we might be missing another one (as you may have seen if you saw it while I was ripping it to shreds) is that they may have done one specifically tied to waterboarding KSM. (They may have done one for al-Nashiri, too, but that would have been in 2002.) We know that the 2005 ones were still discussing what could be done with Hassan Ghul, for whom they had considered and rejected waterboarding in 2004, so it would stand to reason that they had them for KSM and al-Nashiri, right?

    • WilliamOckham says:

      Sorry if I’m being a PITA, but the June 2003 memo can’t possibly be what Hayden is talking about. Here’s the question he asked and his answer:

      Question: Are you satisfied that waterboarding is not torture?

      HAYDEN: I’m satisfied that the Justice Department, in a series of opinions — ‘02, ‘03, ‘05 — said that it was not. Now…

      This memo was not from the DOJ. It was a policy memo, not a legal memo.

  9. chetnolian says:

    Slightly OT or at least behind the curve.

    I catch up with your work Marcy usually after you have done a bit of it because of the time shifts. I have been reading a lot but not commenting because’ looking at this from outside the USA, I have been too angry, but the underlying assumption in the Bradbury memo you describe two posts ago just finally does it.

    Shorter Bradbury, “Foreigners torture because they are bad guys but US torture is good torture because it is in the interests of the USA. ”

    Let’s test this a bit. Do we think Stalin didn’t really believe Russia was better without the people tortured? Do we think Hitler and his cohorts didn’t truly beieve the Jews were responsible for their country’s ills? Do we think Pol Pot didn’t believe Cambodia would be better off without all those pesky intellectuals?

    This is seriously bad and evil thinking.

    Let’s try a little more. Was Moroccan torture of Binyam Mohamed bad torture by foreigners or good torture because, though bad foreigners did it, it was done in the interests of the USA?

    Thank you and all the regular contributers to this subject here for being the conscience of the Country. Lord knows you seem to need it. Don’t give up. Keep it all coming till the only decent thing for the USA to do is to put people on trial.

    • bobschacht says:

      I think you can chalk it up to American exceptionalism. We’re different, because we’re “special.” So when it *looks* like we’re doing something icky and nasty, its not really icky and nasty, but good and noble (or at least Sensible and Proper.)

      You may not be surprised to know that this idea is associated with the neocons, according to Wiki (see link above).

      Bob in HI

      • Nell says:

        this idea is associated with the neocons

        It’s associated with plenty of good old interventionist liberals, too, and paleoconservative hawks, and pretty much everyone who isn’t explicitly anti-imperialist. American exceptionalism is necessary to the worldview of all interventionists, to explain how it’s our right to do just about anything anywhere in the world, with the only permissible arguments against being prudential, utilitarian ones (”counterproductive”, “ineffective”).

  10. emptywheel says:


    That’s one aspect of his nationalist arrogance.

    One that particularly perturbed me was his parlor trick to dismiss any concerns with CAT. He basically said, ”CAT only applies to the jurisdiction you’re in, and since the US spooks don’t torture in the US, but in some other jurisdiction, they’re not subject to CAT.”

    Somewhere, Hayden raised the concern that our allies would get pissed at the memos’ release, and that’s the bit that must piss them off. Poland or Thailand seeing Bradbury argue, ”hey, we’re not breaking CAT, they are!!!” It is just so damned cynical it made me scream.

    And, yes, his examples are all examples where people tortured because they believed they had to. But haven’t you heard? Some animals are more equal than other animals.

  11. flyarm616 says:

    To emptywheel..

    I have a question and please correct me if i am wrong..but did’t Judith Miller go to THE FIRST INTERROGATION OF ( WAS IT) Abu Zubaydah ???


    Maybe I am having a senior moment , but for some reason I tend to remember something about that.

    That she was flown in to watch one of the interrogations or something along those lines..

    heck there is so much my mind sometimes is just overflowing……

    Thank you for any reply..

    • burqa says:

      It’s a senior moment. She was at the interrogation of Mohammed Salah, an alleged (and now, I think, convicted) Hamas agent.

      Just to get this answered – Salah was convicted of perjury in a case involving funneling money to Hamas. He got 22 months.

      But more to the topic,

      Michael Hayden said something that confused me today on Fox News. When asked whether he thought waterboarding is torture, he replied simply that DOJ had said it was not.
      Question: Are you satisfied that waterboarding is not torture?
      HAYDEN: I’m satisfied that the Justice Department, in a series of opinions — ‘02, ‘03, ‘05 — said that it was not. Now…

      I would prefer if these people were not just asked if waterboarding is torture, but have the following quoted to them from the U.S. Army Intelligence and Interrogation Handbook, which says the Geneva Conventions and “… and US policy expressly prohibit acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhuman treatment as a means as an aid to interrogation.”
      Then ask them if waterboarding meets those standards.
      Just because something is not torture doesn’t mean it is within the law…

  12. LabDancer says:

    Why would it not be possible for Hayden to have been referring to Yoo’s memo to HaynesII dated March 14, 2003?

    That memo has some quite specific advice on particular types of “assault”, and as well is quite specfic as to what EFFECTS should be avoided, no matter the chosen “technique”.

    On page 30 there is discussion specific to the notion of where the line is to be drawn in applying liquid substances to persons; and the discussion wraps up on page 31 with the drawing of a ‘bright line’:

    “…so long as the interrogation methods under contemplation do not involve the acts enumberated in section 114, the conduct of those interrogations will not fall within the purview of this statute. Because the statute requires specific intent, i.e. the intent to maim, disfigure or torture [*], the absence of such intent is a complete defense to a charge of maiming.”

    * My addition: Yoo’s discussion of torture starts just before the one on “Maiming” from which I’ve taken the above quote. I particularly noted the following:

    [1] Beyond citing the Geneva Conventions and U.S. laws against torture, Yoo’s efforts to further define what might qualify as torture pretty much come down to this [from page 1 into page 2]:

    “We conclude that based on its reservation, the United States’ obligation extends only to conduct that is
    [break inserted by me]
    “cruel and unusual” within the meaning of the Eighth Amendment
    [break inserted by me]
    or otherwise “shocks the conscience” under the Due Process Clauses of the Fifth and Fourteenth Amendments.”

    [2] Otherwise, Yoo’s memo is replete with all the various unitard qualifications that we’ve come to know of as to Congress not being competent to limit the C-i-C powers of a war president anyway.

    Remember the audience Hayden granted to Charlie Rose in the fall of 2007, shortly after Hayden was confirmed as CIA director and brought back Kappes, and within a fortnight of the Times coming out with one of the big whistleblower leaks? I went through the transcript of that discussion this morning after Hayden’s love-in with Chris Wallace, in order to see if I could find any instances of Hayden uttering blatant inconsistencies between what he said to Rose and what he’s saying now. The general impression is that Hayden coated what he said to Rose with layer-on-layer of petroleum jelly and KY jelly-lathered teflon, to an extent even that marble-mouthed DNI McConnell would envy. I’m inclined to grant that a person THAT capable of maintaining such a stream of conscious mendacity might well be capable of pulling out of his ass such an interpretation as I posit above.

    Also: WaPo’s Warrick noted memos in 2003 AND 2004; is there a candidate we know of for the latter?

    • WilliamOckham says:

      The other policy memo was issued in July 2004. It was a response to a panic at the CIA after the following events:

      1. Abu Ghraib becomes public in late April
      2. The CIA IG’s report accusing the CIA of violating CAT is finished in May
      3. Tenet and his deputy Pavitt announce their resignations in June
      4. Goldsmith repudiates the Yoo/Bybee memos from 2002 (showing the characteristic Goldsmith courage, he also resigns) in June.
      5. Comey and Philbin agree with Goldsmith about the memos.
      6. The CIA has to notify Congress about the IG report in July
      7. There’s a secret Congressional hearing in mid-July about torture, including the IG report
      8. Sometime before July 29, there was a meeting of policymakers to approve the CIA memo.

      We don’t know anything else about the 2004 policy memo.

      • LabDancer says:

        “We don’t know anything else about the 2004 policy memo”

        I think we can assume it read better in the original German.

  13. Hmmm says:

    The UN Rapporteur on Torture says Obama is prohibited from refusing to prosecute the interro-torturers:

    Nowak explained that by invoking the OLC’s memos as justification for the actions of CIA agents against terrorist suspects in U.S. custody, Obama is acting contrary to U.S. obligations under the treaty:

    STANDARD: In other words, by making this announcement, Obama has violated international law?

    NOWAK: Correct. It is a violation of binding international treaty law in this case, because this is an international law convention — and it provides unequivocally that states are not merely obligated to make torture a crime, but also to prosecute any incidents of which credible evidence can be found.

    German language original here.

    Epic oopsie vs. carefully crafted Make-me-do-it? My internal jury’s still out.

    • Palli says:

      I think the POTUS is biding time, watching (probably nudging) reality come to light, knowing the pressure will build but professing indifference. This is an American problem, no president can fix it. All the parts of our culture: all the People, Congress, Judicial system must arrive at the same understanding that evil has been done. The superficiality of our media, the camouflage of our patriotic 8-year exceptionalism and the secrecy of these crimes makes a different environment than Nazi Germany or Apartheid South Africa. We all have to know that these criminal Americans are among us. Then the action will be taken not by a president but by a nation.

  14. pdaly says:

    Total speculation here based on the time frame 3/2003-6/2003

    The memo likely refers to waterboarding Khalid Sheikh Mohammed (or maybe a captured Iraqi?) in order to provide evidence of al Qaeda in Iraq now that it is June 2003 and no WMDs have been uncovered since the American invasion of Iraq began. We need a casus belli.

    skeleton timeline

    03/01/2003 Khalid Sheikh Mohammed captured in Pakistan

    03/20/2003 Iraq War begins

    April 2003-June 2003 The media pinch hit for the WH/OVP

    April 30, 2003 Al Qaeda Operative Operative Busted In Iraq…..1246.shtml

    See excerpt below for gratuitous detail –unrelated to capture of operative– but just in case operative hasn’t convinced you that Saddam was behind 9/11 (my snark)

    Documents discovered recently in the bombed out headquarters of Iraq’s intelligence service provide evidence of a direct link between Saddam Hussein’s regime and bin Laden’s terrorist network, a newspaper reported Sunday.

    Papers found Saturday by journalists working for the Sunday Telegraph reveal that an al Qaeda envoy met with officials in Baghdad in March 1998, the newspaper reported.

    The paper said the documents show that the purpose of the meeting was to establish a relationship between Baghdad and al Qaeda based on their mutual hatred of the United States and Saudi Arabia

    This link is no longer active. Curious if any of you have access to the text.
    Bill Gertz, “U.S. says Iran harbors al Qaeda ‘associate’,” Washington Times, June 10, 2003

    On there is “A Winds of War Special Feature” called
    Special Report: Abu Musab Zarqawi by Dan Darling of Regnum Crucis published on June 30, 2003

    Dan Darling tries to prove intransigence among intelligence agents who remain nonbelievers in the “al Qaeda-is-present-in-Iraq” fact.

    • Rayne says:

      I think you and I were on the same wavelength at the same time.

      I’m editing the most important bit, inserting the date the invasion of Iraq began.

      But all that we’ve seen so far feels as if it has nothing to do with the Iraq War at all; it’s almost an abstraction. How is it that Haynes can get such a rapid response from OLC’s Yoo with a freaking war ramping up in the background?

      • pdaly says:

        Thanks for listing that timeline above. I hadn’t thought about the fact that interrogation tapes obtained prior to the 2003 invasion of Iraq were the ones destroyed. The Bush Administration may have felt with KSM in their clutches and with large pitchers of water and saline, their prayers were answered. KSM may have been tortured after we failed to find WMDs or (as JimWhite suggests, more convincingly because it seems to fit the BushCo MO) they tortured KSM before the invasion of Iraq to get a confession of al Qaeda in Iraq.

  15. Rayne says:

    Peterr, pass me a glass when you refill…my kid caught me crying over this mess before he went to bed. Not exactly a highlight of my parenting to have to explain this absolute failure of American values. Krugman’s brief missive probably said it best when he called the last administration monsters.

    Back to the task: is there any evidence to suggest that the CIA escalated or hurried the process of interrogating KSM during March 2003?

    If we read the Torture Tape timeline, we can flesh in other bits and see there are rather convenient events happening at certain times:

    January 2003: CIA OIG starts investigation of detainee interrogation.[EW]

    January 2003: Leonie Brinkema grants Moussaoui right to interview Ramzi Bin-al-Shibh by video.[EW]

    January 15-22, 2003: Navy’s General Counsel [Alberto Mora] complains about interrogation techniques at Guantanamo, led to believe harsh interrogations will stop – Mora threatens Haynes with a signed complaint after presenting him with a draft WRT to prisoner abuse; Haynes calls later the same day, says Rumsfeld is suspending authorization of interrogation techniques, appointing a working group to develop new guidlines. [HistoryCommons]

    Haynes goes around Mora’s back, getting a second opinion from Yoo. Opinion will supercede the working group and working group will confirm to the opinion. [HistoryCommons]

    January 23-Late January, 2003: Navy General Counsel shocked at Justice Department torture memo – this memo, an opinion written by Yoo, counters all Mora’s arguments against extreme interrogation techniques. The only copy of the memo is kept by Air Force General Counsel Mary Walker, who will be head of the new working group. [HistoryCommons]

    January 28, 2003: Tenet writes memo to OLC outlining acceptable interrogation methods and stating that records must be kept. [EW]

    February 2003: CIA claims to have informed Intell leadership of torture tapes’ destruction; though SSCI has no records. [EW]

    February 5, 2003: Jane Harman and Porter Goss briefed on interrogation methods and torture tape. [EW]

    February 10, 2003: Harman writes letter advising against the destruction of the tape. [EW]

    February 28, 2003: Scott Muller responds to Harman without addressing the tapes. [EW]

    March 2003: According to NYT report, the CIA briefs Congress on destroying the torture tapes.

    March 2003: Public Affairs Guidance for Media Coverage of EPWs and Detainees allows photos (within guidelines) but prohibits photographs of custody operations or interviews.

    March 2003: Second John Yoo opinion on torture, governing interrogations by DOD. [EW] (dd. March 14, 2003

    March 20, 2003: Iraq invasion begins.

    March 2003: KSM is waterboarded 183 times in one month.

    Maybe I’m missing something, not having EW’s prodigious holographic memory, but sure looks like they hurried to get Congress up to speed after Mora threatened to issue a signed comment, but before KSM was “processed” intensely, and that before the working group came back with new guidelines.

    • Nell says:

      February 2003: CIA claims to have informed Intell leadership of torture tapes’ destruction; though SSCI has no records. [EW]

      What the…? The tapes weren’t destroyed until 2005. What is this a reference to?

  16. JimWhite says:

    Slightly OT:

    In thinking about why KSM was waterboarded so many times, I got to thinking about the timing as well. It was March, 2003–the same month we invaded Iraq. Was he waterboarded so many times in an attempt to extract a Saddam-9/11 link?


    • Rayne says:

      Read the History Commons’ collection of reports on KSM’s interrogation; there is so much different information that it almost appears as if there was active disinfo about the interrogations. There is a lot of minimization from different source, but the minimization is inconsistent.

      I’m beginning to wonder if the commenter was right in the previous thread who asked if the effort was about wiping rather than obtaining intel — but perhaps it wasn’t wiping, it was about breaking to the point of implantation and it simply didn’t work. The Shock Doctrine may have failed, IOW, and they had to move to a different plan, a safety plan, maybe one using a journalist embedded in Iraq only a month later…

      All speculation, of course. The facts are disgusting enough on their own, that the UN-CAT was violated wantonly, that the government had been put on notice by legal counsel, and that leaders in the previous administration chose to break both domestic and international law in spite of being put on notice.

      • emptywheel says:

        Don’t know about that. But I’ve been reading the collected works on torture. (Did you know, btw, that Risen had the covert ops news back in 2005?)

        There’s discussion–starting with Risen–of an attempt to do an assassination squad through CIA. From teh looks of things, after CIA balked, it became the JSOC squad Hersh talked about.

        But also from the looks of things, after they figured they were collecting too many detainees, and rather than admitting FBI was better at this shit, Cheney seems instead to have decided to just kill eveyrone rather than detain them. At least, that’s my wildarsed guess.

    • worldwidehappiness says:

      In thinking about why KSM was waterboarded so many times, I got to thinking about the timing as well. It was March, 2003–the same month we invaded Iraq. Was he waterboarded so many times in an attempt to extract a Saddam-9/11 link?

      I reckon you are right. We know that Bush tortured to get his beliefs reinforced. Look at the Zubaida case:

      “‘I said he was important,’ Bush said to Tenet at one of their daily meetings. ‘You’re not going to let me lose face on this, are you?’

      “‘No Sir, Mr. President.’”

      And straight after 9/11 Bush wanted security people to find a connection between Al Qaeda and Iraq.

      And as Rayne pointed out, they ran with every bit of rubbish evidence they could find to support their propaganda for Iraq.

      So it fits Bush’s profile.

  17. Mary says:

    I’m not sure about Hayden and misspeak, what with the billion blinks and lost warrant clause from the 4th, but if he wasn’t befuddling, then maybe the 2003 memo would be one generated by DOJ’s crim div in response to Rice’s request for investigation.

    If she did ask for that, as she says, then it seems likely that they would have pushed to have it in before Bushco issued theirs in June of 03. Chertoff has done a very good job, keeping his name off of a lot of this, but remember his name was tucked into that list of the lawyers who went on the GITMO torture field trip in Sept of 02 (and he had managed not to be mentioned in connection with that until the lists were required – was that by Levin’s committee)

    I wouldn’t think that he would be referring to any of Haynes memos, bc those were for the military and military interogations v. CIA, but who knows

  18. Mary says:

    35 = yep, they get the 2002 memo, have the problems with the IG report, Goldsmith and Levin, then go back to Bradbury for the 2005 memo to clear the smoke and he reiterates, on waterboarding, that waterboarding the way Yoo described it is ok and then references the fact that the IG report says that waterboarding wasn’t ACTUALLY done like that. That report likely referred to the existence of videotapes too, but instead of asking for them, or viewing them and referencing a determination of whether or not what is shown in the videos is or is not torture, he pretty much as good as says, *golly, if all I had to go on was the CIA description, it would all be ok — imo, it was pretty much an invitation to destroy any evidence inconsistent with the earlier descriptions.

  19. bystander says:

    Scott Shane; NYT

    The sentences in the 2005 memo including the number of times the two men were waterboarded appear to be redacted from some copies of the memo but visible in others. Initial news reports about the memos in The New York Times and other publications did not include the numbers, but a number of bloggers, including Marcy Wheeler of the blog emptywheel, discovered the numbers in the memos over the weekend.

  20. timethief says:

    in response to pdaly @35

    Are you saying that they actually believed that there was an AlQaeda/ Iraq connection or that they just wanted a confession of such a link for public consumption

    • pdaly says:

      I believe there was not enough evidence to prove a link so a confession would be the trump card, whether that confession was true or false.

      Remember Cheney’s every attempt to run with an already discredited report of Mohamed Atta meeting an Iraqi diplomat in Prague pre 9/11? Seems the media trumpeting of the spring 2003 capture in Iraq of an associate of Abu Musab al-Zarqawi, a supposed al Qaeda member, was more of the same.

      (BTW: Abu Musab al-Zarqawi’s own connection to al Qaeda was not reliably established. Other details are fluid, too. Evidently he had his leg injured in Afghanistan, was unsuccessful at escaping to Iran, so he had his leg amputated in Baghdad. Then in 2006 when he died, reports indicated his leg was still attached to his body).

  21. radiofreewill says:

    Up from EPU-land:

    Maybe KSM wasn’t Water-Boarded for Information.

    Maybe he was Water-Boarded for Revenge.

    Maybe he was Water-Boarded once for each Coalition KIA in Afghanistan and Iraq through Mar ‘03, which would have been around 183.

    Here are the numbers from, considered an Authoritative site:

    Iraq – 92 Coaltion Fatalities in Mar ‘03

    Afghanistan – 81 (’01 and ‘02) plus the first three months of ‘03 (approx 10-20)

    So, 183 would be at the low range of Likely Total Fatalities, but it is Almost Certain that the Coalition Fatality Total between Afghanistan and Iraq would have been 183 at some point very late in Mar ‘03.

    Does this sound like Bush Torture-Logic to anyone else? To sadistic-ly ‘kill’ and resuscitate an ‘enemy combatant’ over and over, 183 times, to ’settle’ a score?

    Would a Monster do that?

  22. worldwidehappiness says:

    And there were massive protests in the lead up to war, so Bush was motivated.

    KSM would hate Saddam so he would resist saying there was a link even if forced.

    The torture tapes might have been erased partly because they were all full of lame questions that Bush wanted answered!

    “Go on, tell us you are pals with Saddam and this will all be over.”

  23. Rayne says:

    I see John Dickerson tweeted EW’s work:

    jdickersonScore 1 for bloggers: information came out when a # of bloggers, including Marcy Wheeler of emptywheel, discovered it

    tho’ it’d be nice not if Dickerson didn’t use qualifier…who else ran the number before EW?

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