Abu Zubaydah’s FBI Interrogator Removes the Legal Cornerstone of the Torture Regime

Ali Soufan, the FBI interrogator described in the DOJ IG report on interrogation as the interrogator (whom they call "Thomas") who called CIA’s tactics on AZ, "borderline torture," has an important op-ed in the NYT. He writes,

One of the most striking parts of the memos is the false premises on which they are based. 

I pointed this out myself, in a post on why the debate over whether these techniques were necessary and effective is so heated.

Check out what the second paragraph of the Bybee Memo says:

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase." [my emphasis]

Here’s what Ali Soufan says:

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.

We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber. This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. [my emphasis]

We already knew this, of course, from the DOJ IG Report and many other sources. But Soufan emphasizes, importantly, that CIA interrogators were in the room when persuasive interrogation techniques worked. If those interrogators subsequently relied on the Bybee Memo, they could not claim they had a good faith reliance on the memo.

Which may be one of the reasons why, as Soufan notes, the CIA interrogators were unhappy at having been ordered to use coercive methods with AZ.

Almost all the agency officials I worked with on these issues were good people who felt as I did about the use of enhanced techniques: it is un-American, ineffective and harmful to our national security.

[snip]

My C.I.A. colleagues who balked at the techniques, on the other hand, were instructed to continue. (It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not C.I.A. officers, who requested the use of these techniques.)

Soufan’s on-the-record refutation of the very cornerstone of the Bybee Memo–and with it the entire torture regime–dismantles the legal rationale for that regime. As Bybee wrote,

We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. 

So who lied to Bybee about what facts the CIA had in its possession?

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115 replies
  1. Palli says:

    First thought: So perhaps, the destruction of the videos does have something to do with “protecting” the identification of the CIA interrogators- not having the evidence to recognize specific persons might be an effort to buy their silence… so they can’t be individually identified and ask to testify to their discomfort and disapproval or located by investigative reporters (who at this point may have to serve as the frontline of mental health counseling.)
    (The military mind of obedience is one of the barriers to a democracy realized.)

  2. Peterr says:

    So who lied to Bybee about what facts the CIA had in its possession?

    Or . . . Why did Bybee feel compelled to lie about what he had been told by the CIA?

    Presuming that Bybee is not the liar here assumes facts not in evidence.

  3. Peterr says:

    This also further nails Rizzo.

    If CIA was lying, he would have to have been part of it, because the “facts” that Bybee cites had to have come via the request for this opinion that Rizzo made of OLC. OTOH, if Bybee twisted what Rizzo told him, Rizzo had to have seen the misrepresentation and went along with the lie — or he’s so clueless that he missed it.

  4. Loo Hoo. says:

    Soufan:

    In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified.

    This will be interesting.

    • whitewidow says:

      Which is why it’s important that Cheney doesn’t get to selectively release only the information which can be made to look like the torture worked. We need to get documentation out about these failures.

      On Bill O’Reilly’s show, of all places, a guy from Cato was on making the point that we can’t ever know if standard interrogation would have worked just as well or better, so you can’t really prove effectiveness based on the “we got information” lie. He had O’Reilly sputtering. Then Bill O went into how Cheney said that he has the documents to prove it. The Cato guy countered that we would need to see all of the documents, including any that show it not working or bad results. He actually got Bill O to concede “maybe” on that point.

      I can’t help thinking that some of the defenders are going to have to face up to the fact that there was no ticking time bomb scenario. When it dawns on them that they’ve been had, and lied to, and they were supporting garden variety thugs, not defenders of freedom, will they ever feel betrayed and stop defending the torturers?

      This is a really critical time to re-prove to Americans that torture is always wrong, and can never be relied on. The debate over using torture was settled long ago. That debate, over centuries, culminated in Geneva and the International Convention on Torture. That debate resulted in the passage of laws that prohibit torture. America had this debate, decided torture was always wrong, and acted to put the force of law behind banning the use of torture. People who break laws don’t (or shouldn’t) get to start a discussion on whether or not the law is just after they have been caught breaking the law. It doesn’t work for the poor schlub who gets caught with a 1/2 ounce of marijuana, and it sure as hell shouldn’t be an option for torturers.

    • rkilowatt says:

      “…In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified.”

      Kinda implies there are records “all of which are still classified” that give the lie to alleged value of torture.

      Conspire to deliberately withhold vital data? Rico?

  5. NCDem says:

    The memo is directed to CIA Counsel, John Rizzo. It is John who is the “you” as the legal counsel for the CIA that has requested this advice.
    Now the question for Rizzo would be to see the commumications between him, Addington, Gonzales, and Tenet. The communications are surely available. The real question is how do we access them. I have predicted all along that Addington will be the culprit and the mover and shaker in these conversations.

    Our advice is based upon the following facts, which you have provided to us.

  6. JimWhite says:

    Will Pamela Hess be issuing a retraction of this part of her article from yesterday? Soufan’s column shows that this is total BS:

    A month later, the CIA captured Abu Zubaydah, an alleged top al-Qaida organizer in Pakistan. Zubaydah proved resistant to traditional interrogation techniques. During the first half of 2002, CIA interrogators began to subject Zubaydah to waterboarding, a form of simulated drowning taught by survival school trainers to CIA personnel sometime in the first half of 2002.

    I almost sent an objection to Hess about her statement that AZ did not respond to conventional interrogation. I was so upset about that sentence that I didn’t notice until I went back to the article this morning that she also misstated the timing of his torture, moving the torture into the time when Soufan got the actionable intelligence through conventional interrogation. The question becomes, is Hess merely sloppy in repeating one version of events or is she actively protecting someone?

  7. Aeon says:

    Interesting to note this observation from Ali Soufan:

    It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not C.I.A. officers, who requested the use of these techniques.

    This may help to explain the fine reception Obama received at Langley on Monday.

  8. SebastianDangerfield says:

    This is key. I’m glad you highlighted in particular that passage about the CIA being “certain” that AZ had information that he was withholding. That is a prime example — albeit one of very many — in which Bybee is stuffing a number of rabbits into the hat in order to cook up a set of facts that would appear somewhat/sort-of exculpating. No lawyer worth her salt, however, would have simply uncritically accepted many of these factual representations — even if you assume that the Rizzo-Bybee colloquy before the memo was drafted was a good-faith effort to uncover the facts upon which the legal opinion is supposed to be based, rather than what is was: a fully choreographed pas de deux in which Bybee and Rizzo pretend to engage in a good-faith solicitation of an opinion. That is, anyone with a brain would have cross-examined Rizzo on his “certain[ty]” that AZ withheld vital information. How can anyone be “certain” of something like that (unless they already possessed the supposedly withheld information in which case amping up the cruelty would certainly be unjustified)? Vulcan mind-meld? One simply cannot in good faith accept that representation. Yet that representation is critical to the attempted justification. It’s the closest thing they would have to the peurile Bauer scenario. Bybee’s uncritical, unquestioning acceptance of that facially incredible assertion by itself exposes the bad faith underlying the entire enterprise.

    • bmaz says:

      …rather than what is was: a fully choreographed pas de deux in which Bybee and Rizzo pretend to engage in a good-faith solicitation of an opinion. That is, anyone with a brain would have cross-examined Rizzo on his “certain[ty]” that AZ withheld vital information. How can anyone be “certain” of something like that (unless they already possessed the supposedly withheld information in which case amping up the cruelty would certainly be unjustified)? Vulcan mind-meld? One simply cannot in good faith accept that representation. Yet that representation is critical to the attempted justification.

      EXACTLY what I came over here to say. From a legal reasoning standpoint this is as big of a non-sequitur as is imaginable. If I had been paying better attention during the memo dissection posts, I would have (and should have) seen this then. Any lawyer with half a measure of common sense and ethics would melt into a pile of quivering goo on the stand under cross-examination on this clause. Unbelievable.

  9. SebastianDangerfield says:

    PS: We so very much need to see the drafts adn the correspondence back and forth with regard to these memos. If all that evidence wasn’t destroyed, it would, I think, prove far more damning than the things themselves. I want to see who had their hands on them, who made changes, who refused to make changes.

    • Rayne says:

      Yes, all the drafts, given that Zelikow was told to destroy all copies of his memo voicing objection.

      Speaking of destruction, it occurred to me late last night that we need to revisit the missing White House emails.

      What a coincidence they shut down ARMS when they did, in hindsight…

      What a coincidence there are missing OA emails during the period when Alberto Mora was threatening to “sign it out” on a complaint to Haynes, and Haynes was scurrying around behind Mora’s back.

      What a coincidence the OVP’s office had such tragic email losses from May 22nd through June 04, 2005, just about the time these OLC memos must first have been in hot contention.

      • JimWhite says:

        And don’t overlook the fact that emails first started to go missing in March, 2003 when they were waterboarding KSM 183 times, trying to get a false Saddam-9/11 connection just before the Iraq invasion.

        And speaking of timelines, commenter Jebbie over at Glenn Greenwald’s, working with commenter harpie (who seems to have disappeared) put together a tremendous timeline on torture. Here is the link to the table of contents:
        http://www.webdsi.com/jebbie/tlpage2.html

        • Rayne says:

          Oh, hadn’t forgotten March 2003 — but with the war ramp-up and invasion in the same month, given the cast of characters we’re discussing, I’m hardly shocked that the emails are missing. If there’s one period of time I would expect to see no emails, it’d be the timeframe February-April 2003.

          Coincidentally, the CIA OIG allegedly launched an investigation into detainee interrogation in January 2003; was it the same week Mora threatened to “sign it out”? Or the following week when Rummy rescinded authority for “enhanced interrogation techniques”? Really hard to find a firm date without more documentation.

  10. WilliamOckham says:

    Ok, so, I’ve been totally swamped at work for the last couple of days. Anything interesting happen with regard to the whole torture debate?

    I’m just kidding. Well, sort of. I haven’t been able to look at the documents that have been released or read all the comments here. I have a suggestion for folks who are poring over them. Ew mentions the push for torture involved contractors. Remember KSM’s description of the 3 buff old guys who tortured him. Remember that Dick Cheney was responsible for handling a PR problem back when he was SecDef relating to coercive techniques that the military taught to Latin American security forces. A prize awaits the intrepid reporter who discovers the link between the School of the Americas and the current scandal.

    • emptywheel says:

      Already been discovered by Philippe Sands.

      There were just 7 or so copies of the torture manual used in the school of the Americas kept.

      Guess who kept them? The Counsel for the Secretary of Defense.

      Guess who that was? David Addington.

      • Watt4Bob says:

        Torture manual/School of the Americas/David Addington;

        Why does every disgusting sewer converge within this man’s resume?

        • Rayne says:

          Yeah, that’s where they are, but SOAWatch has put together a solid set of resources which includes links to the manuals in question.

          Ugh. Almost called it a “nice set” of resources. Nothing nice at all about it. It is the ugliest, nastiest, darkest lingerie drawer the U.S. has.

          Anybody got chops at Spanish? The Manuales de la Escuela de las Americas needs to be translated as DoD claims it no longer exists in English, according to SOAWatch. I think I can OCR the PDF’s and translate using online tools, but they will need finessing which my limited Spanish would not permit. It would be nice* interesting to compare the Manuales to the JPRA conduct.

          * I have to drop that four-letter word…

          • emptywheel says:

            I can’t claim to know the spanish for waterboarding, but I could certainly do a first asessment of it. Shit, 1/4 of the Latin American texts I worked on in graduate school were all on torture in one way or another. In fact, they were documented SOA torture, many of them.

            • Rayne says:

              I’ll work on that, at least getting rough translations for the chapters on Interrogation, Combat Intelligence and Analysis I since they are most likely sources.

              Funny, there’s no reference to either an English or a Spanish “Analysis II”…

              Anybody who is fluent in Spanish and interested in helping, ping me here.

            • WilliamOckham says:

              I have a friend who is fluent in Spanish (she grew up in Colombia) who owes me a favor and has some free time right now. I think I’ll ask her to translate it the thing. She’s interested in this sort of stuff and needs something to take her mind off some temporary chronic pain.

        • Rayne says:

          Yes, good link, contains link to the report provided to Cheney in 1992 about the improper training materials.

          But it does not have a link to the Spanish-language training materials themselves. I did find them through the SOAWatch site and am now in the tediously grueling process of converting the PDF’s via OCR to DOC files, cleaning up the formatting and preparing for translation from Spanish.

          What I can read in Spanish so far doesn’t rattle me, but it clearly doesn’t match the 1983 Human Exploitation manual or any other manual I’ve seen so far. More to come, but it’s going to be slow going, taken me nearly 8 hours to get to 1/3 of two documents readable in Spanish. Hope the next two hundred pages go faster…

  11. TheraP says:

    OT. I have plugged emptywheel enough times in my own blog – and even plugged the “donation campaign.”

    So I’d like to commend this post of mine, perhaps the most important I’ve ever written. It’s theme is:

    What does “shock the conscience” mean?

    (If I have time later, I will endeavor to post here – but bullets are hard to do on your software and bullets are crucial to my post.)

    Thanks for your indulgence. I believe I’ve helped the cause.

    Now off to do a deed of mercy.

    • whitewidow says:

      That’s a great post, TheraP, glad you plugged it here. I was trying recently to think of an analogy for “it works.” There must be other things that could be said to “work” but that we just don’t do.

      The other thing I would point out is that for the defenders of torture, the techniques simply do not “shock the conscience”. They are ok with it, and some of them actually enjoy it.

      The torture is part of the right-wing’s overall belief that just being a “badass” and kicking a few people around is the way to get what you want and a substitute for a real policy. Just as sometimes America needs to “throw some country up against the wall” once in awhile, they believe in throwing the detainees up against the wall just to prove they are bigger and stronger. It is the only thing they understand. They don’t want to win the argument on the merits, they just want to force everyone else to comply with their way.

      Anyway, thanks for the thoughtful post. And you definitely are always contributing to the cause.

  12. bgrothus says:

    “The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas.”

    Is this a known known or a known unknown or an unknown unknown?

  13. Mary says:

    10/13 – that’s exactly what they were doing.

    The “who lied to Bybee” is, in one sense at least, pretty easy. The memo to Rizzo is based on repeating back facts that Rizzo has given to Bybee. So the fact representations are from Rizzo. Which ones he knew were lies or not is the second layer. It’s pretty ez to have strong opinions already on that, but it would need to be fleshed.

    This all gets back to what a reliance opinion is and how they are used. Before these memos came out, when we only had the other memos, I kept hitting the issue that no one could have relied on them in good faith because (in addition to other reasons involving logic and readily apparent bad advice etc. that are a separate, and legally fuzzier, set of issues) of their form. They didn’t have facts – you can not have a reliance opinion with no facts. And it wasn’t that they had redacted facts, they just had no facts.

    The way reliance opinions work is that they person wanting the opinion tenders the facts. That’s always where you get into the problems and that’s where they got into them here. Whether Rizzo lied to Bybee about the facts is kind of beside the point – there isn’t much of a penalty for lying to another lawyer to get a memo that won’t be able to be used for reliance out of them. It will be fun to go into maybe, but lies or ommissions or honest misunderstandings aside (and it doesn’t look as if Bybee required that the facts be presented in any kind of affidavit under penalty of perjury form.

    Anyone who’s been down the road of asking for reliance opinions knows what the pitfall are and this is just very indicative of what could be expected. As soliciting counsel, Rizzo didn’t do his clients any favors with the opinions he got for them and that’s on him. If he wanted cover for what has been reported as really being done, he didn’t get it. In a corporate world setting, he’d be looking at malpractice. The weird overlay of how DOJ is alleging OLC should be deemed to work, as a kind of non-judicial inhouse judiciary, might mean that there are some regs or other things out there that would make Rizzo more culpable than just “bad lawyering” for misrepresenting facts to OLC, but the net result is his real penalty. If you meant to ask someone for an opinion that it is legal to run a red light and instead the facts you give them involving green or yellow or yield signs or … well, you end up not getting what you wanted if you don’t ask for it correctly.

      • Hmmm says:

        The whole fucking thing is illusory. Cobbled together out of air.

        That just makes the “covered by the four corners of the OLC memos” wording of the pass that Obama articulated an even sharper weapon. He’s bending over backwards to accept the pretext being offered, even though it’s now being shown to be utterly vacuous — and still the uncovered space for pursuing investigations leading to prosecutions is just plain vast.

  14. mesquite says:

    A couple of comments from reading Soufan’s editorial: He states he was interrogating Zubaydah from March to June. I would guess that if they had started the harsh techniques before then, he would have known. He further comments that this was ” before the harsh techniques were introduced in August.” There has been speculation that there may have been torture before that August approval. I think we can conclude no torture by CIA agents before June, and nothing in front of FBI agents until after August. It wouldn’t be surprising to find out that torture was used at certain black sites before then, but presumably that was all contractors.

    But Marcy’s excellent post on what little came out of torture in AZ’s case can be updated. It is really nice to start hearing the real details instead of just Cheney’s spin. This has been necessary to move on to where torture is no longer promoted. I’m sure at least 25% of our population thought torture was the way to go a few years back. It’s scary enuff for Cheney to think so, and even worse to have so many “ordinary Americans” to think so too, but that is what happens when you have so many Rushbots around. One can only hope that getting the real news out will make them a little more ashamed to listen to (and believe) Big Pharma.

    • emptywheel says:

      Well, except he said something that was borderline torture happened before he left.

      And taht still leaves open 2 months, June and July, when they may have started without authorization. The SSCI narrative says July 12 was the beginning of discussions. I’m not sure I buy that.

  15. SebastianDangerfield says:

    Indeed. My first thoughts when reading that Aug. 1, 2002 memo — even before being sickened by the pseudo-clinical, kid-gloves handling of things like exploiting a mentally ill man’s phobia — was, as a professional, being sickened by the kabuki on display when Bybee goes through all the “you siad this … you said that” recitals.

    But perhaps it’s just a persistent typo, the product of Microsoft Word’s pernicious Spellcheck? I mean, when I type “Yoo,” it always thinks that I want to say “you.” If you replace the “yous” with “Yoos,” the whole thing is a bit more honest, yes?

    • bmaz says:

      Yoo make a funny! Heh.

      Mary @26 – As to point 1, no kidding. It is not a question of good faith, it is a demonstration of bad faith and criminal intent, which is what I was hammering at on the Zelikow post thread.

      Points 2-3, and 5 – agreed.

      On point 4, as part of the government, and in the chain of command, I would like to see a 42 USC 1983/1985 action lodged against them (and some others). There isn’t enough space here to detail the roadblocks to doing so, but that sure as hell is the spirit for which the provisions exist if I ever saw it.

  16. susiedow says:

    re: contractors. The FBI agent Ali Soufan wrote:

    My C.I.A. colleagues who balked at the techniques, on the other hand, were instructed to continue. (It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not C.I.A. officers, who requested the use of these techniques.)

    Maybe I am reading too much into his wording but it strikes me that Soufan is careful not to distinguish what type of contractors they were. Were they security? linguists? interrogators? analysts? medics? Knowing which type of contractor would tell us what type of contract they were working under aka where the money was coming from. Which raises the question: were funds misappropriated to pay for these contractors?

    • Sara says:

      “re: contractors. The FBI agent Ali Soufan wrote:

      My C.I.A. colleagues who balked at the techniques, on the other hand, were instructed to continue. (It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not C.I.A. officers, who requested the use of these techniques.)

      Maybe I am reading too much into his wording but it strikes me that Soufan is careful not to distinguish what type of contractors they were. Were they security? linguists? interrogators? analysts? medics? Knowing which type of contractor would tell us what type of contract they were working under aka where the money was coming from. Which raises the question: were funds misappropriated to pay for these contractors?”

      I’ve mentioned Tim Shorrock’s book, “Spies for Hire: The Secret World of Intelligence Outsourcing” a number of times on various threads here — very useful in backgrounding what is at issue.

      Look — by the time the Democrats took control of Congress in 2007, 70% that is SEVENTY percent, of the CIA budget was spent on contractors — the whole blummin CIA Operations Budget was privatized. Not only were many of the contracts “no bid” — meaning that contractors frequently were and are politically connected, the whole point of sub-contracting was to screw the admittedly inadequate system of Congressional Oversight. To make matters worse, CIA — and other intelligence agencies, (remember we have 16 of these), all were in the “outsourcing” mode of operations, and none of them had the staff or indeed the instinct to carefully monitor contracts, rate performance and all the rest. Souvin’s mention of the role of contractors in requesting torture authorizations is the most important sentence in his Op-Ed in my mind. Why??? Because once you break the link of a chain of command and/or supervision by handing over critical functions to a private party, you also privatize the mission of an intelligence operation. And by its very nature, intelligence operations are about stealing secrets, and otherwise violating the laws of other countries, if not this country. It isn’t even clear that any secrets stolen become the property of the US Government — nor is it clear that the methods you use (let’s say you create a software program that does analysis of intercepted data transmissions) that the program and the ultimate analysis becomes US Government Property. It’s Private, and the Contractor owns it.

      We are hearing in various venues — Panetta’s Confirmation Hearings for instance — that we need to control contracting and outsourcing, and bring these functions back “in house.” Yep — 70% of the CIA budget needs bringing home. But we also need to force Congress to deal with the underlying reason why the Bushie’s went nuts with outsourcing — the point was to avoid Congressional Oversight, by putting the missions under private contract. And we all know this was Cheney’s primary interest, he wanted to destroy all vestiges of Congressional Oversight.

  17. mui1 says:

    Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber.

    Actionable intelligience?

  18. Mary says:

    21 – really bad bad bad lawyering.

    Some random thoughts under the umbrella of this post’s direction.

    1. In addition to things like destroying Zelikow’s memo, and the tapes, and in addition to the memos from Taft and JAG – the fact that the FBI was refusing to allow agents to be present at interrogations adds one more layer of proof that no one thought this crap was “legal.” How does anyone claim good faith when the FBI won’t allow it’s agents to even be present? This also goes to what was happening at GITMO and the information from Fallon and others about the CIA and MI questioning vs the Crim Inv task force questioning and how they ended up not being present.

    2. How does pulling out people like Coleman, Cloonan and Soufan from the processing of info help?

    3. Soufan’s point about not going after the interrogators is based in part on everything he saw up until he pulled out, but I wonder when that happened and what happened later.

    4. Not only is Karpinsky right in her very direct anger at all the people who knew all of this but sat quiet while the Abu Ghraib trials were going on, but vis a vis the lawyers – including Comey’s pal Haynes – it’s more than something to be angry about – it’s a violation of evertyhing I can think of. Haynes ought to be on the receiving end of personal lawsuits from all the soldiers – he sat on the informatino about the fact that Rumsfeld and Haynes had authorized as not “illegal” everything they did and had tasked MI and contractors to carry it all out. This goes to Taguba’s repeated highlighting of the fact that Rumsfeld barred him from investigating MI and the contractors, just MPs – and that it appeared there were much worse things done by MI and the contractors. Then you have the case of the contractor who was convicted – but all this information was withheld during his trial. And all the Moussaoui, Padilla, FOIA, etc. cases where the requests were out and information was either not produced or affirmatively misprepresented to the courts. No one has to bother with the sheer incompetence of the memos – there are so many other hard grounds to go after the lawyers on, whether personally, ethically or in an obstruction type of setting, that the indictments are already pages waiting to be filled in on just their failures to comply with legal requirements on evidence. Especially when people are looking at being jailed while they sit on that evidence.

    5. While everyone is talking about the good hearted interrogators, only doing what was absolutely necessary, there needs to be a little more focus on the agent who both used a waterboarding session for her personal entertainment (which is papered with a censure supposedly) and who also arranged for the kidnap and for the continued holding, even after they KNEW UNEQUIVOCALLY that they had the “wrong guy” of el-Masri. And on the agency’s actions to give her a covert assignment and status when the heat got turned up on the el-Masri case, so now no one can talk about her. And about the complete disappearances of Noor al-Deen and al-Libi and KSM’s children and 40 or more others. How could anyone wanting to protect this country have “lost” al-Libi and all the information of how he was used to generate false intel to gin up the war?

    I guess you never should really start these kinds of lists, because there’s no legitimate stopping point for them – they go on and on.

    • mui1 says:

      guess you never should really start these kinds of lists, because there’s no legitimate stopping point for them – they go on and on.

      Lists are good. I loved Hugh’s list.

    • earlofhuntingdon says:

      Are you suggesting that as with the DoJ’s prosecution of former Sen. Stevens and the Detroit “terrorist” trial debacle, key administration figures withheld exculpatory evidence. Why, how many convictions and plea bargains and claims for civil liability will we have to contend with? (We should, of course, re-open or reconsider all those cases.) The DoJ, OMB and Congress should be re-evaluating DoJ’s budget.

      I can also hear Scalia now, ranting about “judicial certainty” in an attempt to ignore the crying need to re-open those cases or allow civil claims to proceed. The ring of Obama’s renewed claim of “state secrets” and the new claim of “sovereign immunity” have a louder peel now.

  19. Propagandee says:

    Game, set, and match.

    Ali Soufan’s account underscores the huge distinction between torture as a means of obtaining actionable intel, which apparently it sucks at; and the kind of torture for propaganda purposes that was used to help sell the invasion of Iraq (i.e. the kind developed by the Chicoms during the Korean War and reversed engineered via the SERE training program into the Cheney-Bush brand of torture).

    We need to keep that distinction front and center, as Ron Suskind did last night on MSNBC.

  20. CalGeorge says:

    Marc Thiessen, speechwriter for former President Bush was on Diane Rehm this morning and doing a very intense, practically livid, “lives were saved by torture” routine.

    http://wamu.org/programs/dr/

    Why are all the Bush speechwriters so over-the-top frigging crazy?

  21. Mary says:

    22 – the old story about al-Faruq, where he supposedly “broke” the first week of Sept 2002, says that they had been subjecting him to things like sleep deprivation for three months before – that puts it back in earlyish June.

    “It wouldn’t be surprising to find out that torture was used at certain black sites before then, but presumably that was all contractors” I think Soufan’s reference to contractors isn’t that contractors as the active torturers, it appears to me to be referring to the psychologists who were the “consultants” who wanted to set up the programs – basicaly they wanted some human experimentation and they got it imo. fwiw.

    • whitewidow says:

      Spencer makes that point in a good post today, along with this:

      But is it too cynical to suggest that Mitchell also had an interest in saying that Soufan and the FBI’s (and apparently, in part, CIA’s) non-brutal techniques failed? From page 24 of the Senate Armed Services Committee report:

      Subsequent from his retirement from DoD [the Department of Defense], Dr. Jessen joined Dr. Mitchell and other former JPRA [Joint Personnel Recovery Agency, which oversees SERE] officials to form a company called Mitchell Jessen & Associates. Mitchell Jessen & Associates is co-owned by seven individuals, six of whom either worked for JPRA or one of the service SERE schools as employees and/or contractors. As of July 2007, the company had between 55 and 60 employees, several of whom were former JPRA employees.

      It’s always about money. Did they set up a business to sell torture? Did they have a fucking marketing plan to sell “learned helplessness?”

      I feel sick, and in light of what I’ve already had to digest, that’s a pretty tough feat at this point.

      • emptywheel says:

        Yeah, I agree that’s a crucial point. Mitchell almost certainly provided all the psych language in the OLC memo. Which means it was not unbiased assessment. It was the assessment of someone who stood to make millions off that assessment.

  22. Badwater says:

    Before the torture started, the whole war thing wasn’t as much fun for the Decider as he thought it would be. His bike rides were rather boring. Once it did start, he had a new spin on his pedals.

  23. Mary says:

    30 – because that was a job requirement to be a Bush speechwriter maybe?

    So Thiessen had clerance for briefing on the programs and knew all about the torture programs? Was that while he was writing Bush’s “we do not torture” speeches? And was that while he, too, sat back and let soldiers go to jail over Abu Ghraib despite knowing that the OLC had approved everything that the pictures showed? What a guy.

  24. mui1 says:

    The debate after the release of these memos has centered on whether C.I.A. officials should be prosecuted for their role in harsh interrogation techniques. That would be a mistake. Almost all the agency officials I worked with on these issues were good people who felt as I did about the use of enhanced techniques: it is un-American, ineffective and harmful to our national security.

    So . . . were these guys just following orders?

    • robspierre says:

      I don’t think that is what was meant.

      The point appears to be that they WOULDN’T follow orders, at least not unquestioningly. Professional CIA interrogators objected to torture just like FBI agents did.

      If true, this reassuring. It means there are still some conscientious public servants left in the intelligence services. But, as in the case of the military, they received no support from higher ups in their chain of command.

      Only the FBI leadership seems to have supported its people to any extent. But, even in the case of CIA, perhaps there was still enough resistance to necessitate the Bush-Cheyney conspiracy’s heavy reliance on contract goons from Dyncorp, Titan, and the rest. And maybe institutional pushback explains the housecleaning (dirtying?) that Porter Goss engaged in. They clearly tried to drive out professional, career service officers.

      I like to think that there was such resistance and that it explains Mr. Obama’s insistence on not punishing rank and file, professional CIA. I’d like to think that the contractors, the upper-level opportunists and political operatives are still targets. I hope I’m not going to be disappointed again.

      • mui1 says:

        I could be wrong, but reading that article I got the feeling that CIA officers who were “good,” “balked” but eventually did follow orders. And really for me it is the deed and not the words that matter.
        And really, why would Soufan feel the need to keep them from being prosecuted otherwise?

        The debate after the release of these memos has centered on whether C.I.A. officials should be prosecuted for their role in harsh interrogation techniques. That would be a mistake. Almost all the agency officials I worked with on these issues were good people who felt as I did about the use of enhanced techniques: it is un-American, ineffective and harmful to our national security.

  25. cbl2 says:

    loosely related o/t

    Republics are sensing this cavalcade of horrors may not be so good for them . . .

    Hoekstra out this morning with a whiny “Dems signed off too!”

    good luck with that.

    • Rayne says:

      You got a link to that? that one might need to be spread more widely around Michiganders since Hoekstra is running for governor.

    • emptywheel says:

      He’s right, you know.

      But as far as I know, neither Bob Graham or Jello Jay is running for office next year. Pelosi is–torture might not go over so well in SF, granted, though she at least claims they told her it was prospective when they said it. Jane Harman MIGHT be running, if she can extract herself from a spying scandal. But she has the cover of objecting, in writing, particularly on policy grounds.

      Crazy Pete? He’s going to try to run for governor next year, in an increasing blue state with the highest population of Arab-Americans in the country.

  26. Propagandee says:

    Juan Cole has more:

    “Jonathan S. Landay at McClatchy has discovered the real reason that Abu Zubaydah and Khalid Sheikh Muhammad were tortured dozens of times in the run-up to the Iraq War. It was because Dick Cheney and Donald Rumsfeld were trying to get them to say that Saddam Hussein had operational links with al-Qaeda, so as to have a firm justification for the war.”

  27. bgrothus says:

    Mary, I hope there is more focus on “the disappeared.” Children?? Who would stand for this? It would be hard even for “good Americans” to really tolerate this, I think. How can we get this into the mainstream of what is being discussed?

  28. Mary says:

    QUESTION: Suppose the executive says mild torture we think will help get this information. It’s not a soldier who does something against the Code of Military Justice, but it’s an executive command. Some systems do that to get information.

    MR. CLEMENT: Well, our executive doesn’t[.] [Rumsfeld v. Padilla, p. 22.]

    Exec branch lawyers allowed this representation to the Sup Ct. – a boatload of lawyers – to go unchallenged, despite actual and specific knowledge that it was false. It’s hard to imagine that Clement wasn’t one of them, it’s pretty unchallenged that Ashcroft was definitely one of them.

    • earlofhuntingdon says:

      Obeying an illegal order is itself illegal. The greater harm is with the executive or superior who ordered it. Punishment should be commensurate with and fit the crime.

  29. GregB says:

    In a nutshell we have the whole of the GOP standing up for the opinions of lawyers and politicians and damning the opinions of every branch of the US armed services.

    Support the troops!

    This point cannot be emphasized enough.

    It was the politicians and the lawyers against the US military.

    -G

  30. robspierre says:

    “We also understand that you do not have any facts in your possession contrary to the facts outlined here”

    The above statement does not suggest that anyone lied to Bybee. This looks like a classic CYA memo. He’s making the key assertions himself but phrasing them to sound like conclusions based on someone else’s facts, thus giving himself deniability on paper. This statement goes into the file, but the other side of the conversation–if it ever existed–does not.

  31. cbl2 says:

    not seeing this on anyone’s timeline as yet.

    The US has admitted that the Bataan and Peleliu were used as prison ships between December 2001 and January 2002

    • earlofhuntingdon says:

      Navigating, I presume, in international waters. Except that onboard is always American soil, subject to US jurisdiction. Using them as prison ships doesn’t avoid US laws, but it does keep the matter wholly within the DoD. That was then the home of Rumsfeld, Wolfowitz, Haynes, Feith and Cambone.

      There may be a run on glass booths for crimial courts. A good stock bet in an otherwise down market.

  32. Mary says:

    37 – it was whiny – but also true.

    A whole lot of folks have been saying for a long time that the reason Pelosi took impeachment off the table is that she didn’t want a thorough investigation because of what it would show.

    Now we see some fo that, with the NYT kind of burying what I thought was pretty big news on its own – that Pelosi, when she was part of the gang of 4 (and so should have already known that she was being briefed in violation of statutes that required at LEAST the Gang of 8 to be briefed) is admitting that she was briefed on all those techniques and that DOJ thought they were legal. She didn’t object to any of them and her story is that she thought she was getting that briefing just so they could tell her about stuff – they weren’t going to do. Not only did she take impeachment off the table, she, too, sat back while soldiers went to jail for doing things that she knew had been approved by DOJ. Beyond creepy. She allowed the Rumsfeld “few bad apple” theme.

    And it sheds a new light on Cheney’s concern over the FBI getting into members of Congress offices once we know that he very likely knew the FBI wanted to go after Harman and that Gonzales was cutting deals with her.

  33. PeorgieTirebiter says:

    As I was reading Andrew Sullivan this morning:

    “As the invaluable emptywheel notes (more valuable than most of the journalists at the NYT and WaPo), Soufan is proving that the CIA’s premise to Bybee was false.”

  34. Mary says:

    48 – I just can’t get over it. To the Sup Ct, in a hugely important set of decisions, and no one ever – and still has not to this day – supplemented or corrected the record.

  35. earlofhuntingdon says:

    Jessen and Mitchell are good candidates. They saw a burgeoning business, income and unique importance at their doorstep if they could persuade the government to adopt their “approach”. They would have known through the jungle drums that key “senior administration officials” at DoD and the White House (at least) thought this the perfect time politically to “unleash hell”. (The phrase stolen from the film, Gladiator, by Republican vote caging experts in Florida in 2000.)

    Let’s also not misunderestimate the importance of a first-hand witness, whose testimony directly contradicts the foundations on which Cheney built his torture regime. The one his nominal president was too happy to use as the rock of his presidency, his wars, and his domestic spying programs.

    I would assume most of these players had multiple agendas. They were among the top civil servants inside the Beltway. Hence, Bybee may have been lied to. He may also have invented the facts himself or intentionally failed to perform minimal due diligence to test the facts upon which his assumptions rested. The memos themselves suggest he was eager to construct a framework, rickety if put under the slightest weight, to allow his political superiors to do what they had done or wanted to do.

    It’s possible that Addington and Haynes and/or Rizzo maneuvered an already eager and cooperative OLC – intentionally built that way by Cheney, who had a veto on important bureaucratic assignments and who knew its importance inside the DoJ and for the federal government – into feeling that he had no time to test assumptions or perform adequate research. He may have been severely pressured to “give it his best shot – NOW”. That doesn’t excuse his work; far from it. But it may be a partial explanation of it.

  36. SparklestheIguana says:

    From a NYT article dated 3/2/09 by Mark Mazzetti about the 92 destroyed interrogation tapes:

    According to the letter that was filed, the agency has asked to have until Friday to produce a schedule for the court detailing when it will turn over a number of records associated with the destruction of the tapes, including a list of witnesses who might have viewed the videotapes before they were destroyed.

    So the court now has a list of who has viewed the tapes. When do we get that info?

  37. earlofhuntingdon says:

    These memos routinely build the political case that exigent circumstances exist that require ignoring the law in order to interrogate these prisoners “properly”.

    Bybee would have known that “exigent circumstances” are not a valid defense to liability for using torture. It’s part of basic instructions regarding the UCMJ. The law makes no allowance for the “importance” of the witness or his or her information.

    Cheney and those implementing his torture regime had to have intended to ignore that law from the beginning. Which supports what now seems an obvious conclusion: Cheney authored an entire bureaucracy of torture intended to operate outside the law, reporting like his special forces commandos, to him.

  38. plunger says:

    The fact that Cheney actually acknowledges “missing e-mails” in the critical time frame to coincide with coerced “confessions” said to back-up the script written by Zelikow, Rove and others to “justify” their rush to create “Eretz Israel” by duping US citizens into believing they had a vested interest – this in itself is a crime.

    Missing e-mails = evidence of a coverup.

    See “Watergate”

  39. 1970cs says:

    One of the things that has never made any sense to me about this is, why would they take this torture program out of Afghanistan, and why bring it into the White House and discuss it with heads of several branches of the government?

    Most of the people detained were picked up in Afghanistan where the country was at war and there was/is no government. AZ or KSM could have been brought there and tortured, maybe even killed and who would have known. Why fly these people around the world to different sites in different countries and involve so many people?

    Why were principles meetings held where each principal weighs in, and is then part of this torture enterprise? To ensure their cooperation by their complicit guilt?

  40. pdaly says:

    FYI: The author of this NYTimes op-ed, Ali Soufan, lost his former FBI boss John O’Neill in the wreckage of the WTC on 9/11/01.
    Soufan worked closely with O’Neill on the investigation of the US Embassy bombings in Kenya 1997 and on the USS Cole investigation 2000.

    So for Soufan, the loss on 9/11 was personal. I wish he mentioned this. If he could stay within the rule of law in interrogating suspected/actual terrorists, why couldn’t others?

    I found an intriguing passage in Lawrence Wright’s book The Looming Tower wrt orders from Washington, DC. I wonder if Soufan can comment on it yet. It is the morning after 9/11/01, and Soufan and FBI team are in Yemen, waiting in the airport to be evacuated on order of FBI Headquarters. Then the order from Headquarters changes, as Soufan learns by satellite phone:

    When he [Soufan] spoke to Dina Corsi at headquarters, she told him to stay in Yemen. He was upset. He wanted to get back to New York to investigate the attack on America–right now!“This is about that–what happened yesterday,” she told him. “Quso is our only lead.”

    She wouldn’t tell him anymore.
    [snip]

    The order from headquarters was to identify the highjackers “by any means necessary,” a directive Soufan had never seen before.

    page. 408 The Looming Tower

  41. timbo says:

    I think we may also be missing something here. There has been speculation that GWB was involved in the Contra ramp up. I wonder if GWB knows personally some of these “CIA contractors”; worked with them before even through the Texas conduits to Central America? And this is why, perhaps, Obama isn’t interested in prosecuting anyone. And why GWB immediately clamped down on all records back to Carter’s time in office when GWB got into power in 2001. The damage to American international prestige could be even greater than it already is now if this were to be proved or be seen to be a reasonable conclusion. I am also curious about Harman’s stints from 1980-1992 when it would appear that her biography is very lacking. Again, what have some of these folks been up to with their “blank bio” time?

  42. perris says:

    Which may be one of the reasons why, as Soufan notes, the CIA interrogators were unhappy at having been ordered to use coercive methods with AZ.

    Almost all the agency officials I worked with on these issues were good people who felt as I did about the use of enhanced techniques: it is un-American, ineffective and harmful to our national security.

    I keep saying those that were pushing for torture were not the professionals, they’re recruited by cheney for his team b

    we really, REALLY need to look into when and by who those involved in the program were recruited, I am TELLING you that is going to be SMOKING GUN

  43. Mary says:

    72 – and with all those routes to start the ball rolling on the lawyers, the hand wringing over not knowing if they can be pursued for “just” giving bad opinions is smoke. They may be in the Exec branch, but as lawyers they have duties to the Judicial branch and as Exec employees they had statutory candor duties in dealings with Congress as well.

    73 – One of the things that I’ve harped on before, but that makes me the most angry at the lawyers, is that they essentially stripped the military of cover for refusing such orders – they made the determination that torture is a legal order. Of course it’s “not” in the real world settings and in international law and in our domestic law as a competent court woul interpret it. But if anyone wants to talk about the sins of sitting back on a sunny day, they ignoring how lawyers sitting safe in DC frivoulously an with self interest issued determination that procedurally boun the military as an instituion – a determination that torture orders were “legal” The ramifications of that are beyond appalling.

    • earlofhuntingdon says:

      Agreed. The “legal” cudgel they forged allowed them to strip the career from anyone in the military who refused to obey a direct order to torture. It would have been – will be? – years before anyone who took that route could recover what’s owed them. Another task for Sec’y Gates to add to his “To Do” list.

  44. SparklestheIguana says:

    Rich Lowry puffs up with pride:

    “Rightly considered, the memos should be a source of pride. They represent a nation of laws struggling to defend itself against a savage, lawless enemy while adhering to its legal commitments and norms. Most societies throughout human history wouldn’t have bothered . . .

    “We carefully parsed each of our techniques to ensure it wouldn’t cause ’severe physical or mental pain or suffering.’ This touchingly legalistic exercise at times took on a comic aspect. We could put a caterpillar in a box with a detainee afraid of stinging insects, Abu Zubaydah, so long as we didn’t falsely tell him the caterpillar was a threat to sting. We could put detainees in diapers so long as ‘the diaper is checked regularly and changed as needed to prevent skin irritation.’ . . .

    • TheraP says:

      Boy, I’d hate to know what would be a source of shame for this guy! Gosh does that feed the fantasies!!!!

  45. wigwam says:

    ”Good faith”??? What evidence do we have the the faith of CIA torturers was any better than that of the Nuremberg defendants? Both were patriots who believe their national leaders. Both were acting under ”orders,” but disobeying orders from CIA managers carried much less personal danger than those from superior officers in the Wehrmacht. At worst a CIA employee would be fired rejecting an order.

  46. JohnJ says:

    Dammit!

    93 Responses to “Abu Zubaydah’s FBI Interrogator Removes the Legal Cornerstone of the Torture Regime”

    You guys did it again….I have to go to work! *g*

  47. cregan says:

    Relax, no one is going to be prosecuted.

    If they are, very high on my list would be the Congressmen and women who heard all the details and let it happen. To me, they authorized the use of the techniques as much as anyone else. They gave it a very important OK and for sure could have stopped it. They could have cut funding or any one of a number of actions. They didn’t.

    However, much as I feel Nancy Pelosi deserves to be wearing an orange suit and much as I might like to see it, she and Rockefeller, HOestra, Shelby, Bybee, Yoo, et al, will never see a court room.

    • bmaz says:

      That useless drivel wasn’t worthy of posting in the original thread you placed it, much less multiple more. give it a rest.

      • earlofhuntingdon says:

        Leave the trolls alone. They have so little work, now that Karl and Big Dick are in the private sector and all those AEI “scholarships” are drying up.

  48. Mary says:

    You could also speculate about the missing Jan 04 and Feb 04 missing dates – in Jan 04 al-Libi is supposedly back in US hands, and recanting. In Feb, CIA is reissuing the briefing notes to show that.

    And then al-Libi is more completely and more effectively disappeared, not to be heard of again other than the reports that he may have ended up in Libya.

  49. Mary says:

    One other thought to toss out on this topic

    Apparently the CIA says it gave its torture briefing to the gang of 4 and it has the notes. Graham is trying to claim forgetfulness, Shelby won’t talk, Goss supports the CIA version and says that the members of Congress pushed CIA to be even more aggressive, and Pelosi has a fairy tale about CIA briefing her just so she’d know what CIA thought was legal, not that they were going to do any of it.

    But given the Zubaydah reports and info, the next legitimate question would be – did FBI also brief the Gang of 4? If not, why not? If so, did they advise that they were having to pull their top investigators out of the interrogations (seems like a piece of info Congress should have been told – at least the 4 members who were also getting the torture briefings).

  50. cregan says:

    The point stands, there will be no prosecutions. Pelosi, Hoekstra, Rockefeller, Shelby, Yoo, Bybee; not one will be prosecuted for approving or allowing the interrogations to go forward.

    Why the interest in 4 memo writers when there were many that approved it and allowed it to happen. Those 4 only gave an opinion, good or bad. They didn’t give the go ahead. They didn’t have the power.

    People are only going after them because they are weak, easy targets.

    Cheney, Pelosi, Rockefeller, Hoekstra, Tenet, Shelby, Graham–those people did have the power to give the green light, and they did.

    When I see people calling for the heads of those 6, then I will know they are serious.

    • Hmmm says:

      Objection the First: People have been calling for those heads. For years, in fact. In what direction have you been looking?

      Objection the Second: Investigations frequently begin with lower-level officials and then work upwards. Or do you think all the important revelations have already come out? Buy popcorn, watch, and wait.

  51. Mary says:

    Constitution 101 – no member of the legislature ahs the ability to “give the green light”

    The legislative branch writes the laws
    The judicial branch interprets the laws
    The executive branch impelements and enforces the laws.

  52. worldwidehappiness says:

    NCDem @7 wrote:

    Now the question for Rizzo would be to see the commumications between him, Addington, Gonzales, and Tenet. The communications are surely available. The real question is how do we access them. I have predicted all along that Addington will be the culprit and the mover and shaker in these conversations.

    Yes. We are only getting the least shocking titbits.

    Imagine if everything was exposed (except, of course, for truly sensitive security stuff).

  53. burqa says:

    One aspect I haven’t seen discussed in the whole torture issue is the sense of entitlement the Bush administration felt it had over the thoughts of a human being.
    They believed they had a right to anything and everything floating around inside someone’s skull and believed they could do anything, anything, to pry it out – because those thoughts really belong to them.

    Does anyone remember the statements made by Yoo about the president not having to obey the law on maiming?
    That is one statute that describes the crimes in detail.
    Yoo was saying if President Bush wanted to, he could literally order the gouging of someone’s eyes out or pour a caustic substance such as acid on them and not break the law.

    That’s some sense of entitlement, eh?

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