Our Torture Regime Based on Same Kinds of Lies and Bad Intell as the Iraq War

/86 Comments/in /by

The third sentence of the Bybee Two Memo asserts Abu Zubaydah is “one of the highest ranking members of the al Qaeda terrorist organization.”

You have asked for this Office’s views on whether certain proposed conduct would violate the prohibition against torture found at Section 2340A of title 18 of the United States Code. You have asked for this advice in the course of conducting imenogations of Abu Zubaydah. As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization, with which the United States is currently engaged in an intemational armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001.

The next paragraph warns that if any of the facts in the memo provided by CIA “change,” the memo’s advice would not necessarily apply.

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.

The memo continues to make claims about Abu Zubaydah’s central role in al Qaeda.

According to this assessment, Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden’s senior lieutenant.

[snip]

He also acted as al Qaeda’s coordinator of external contacts and foreign communications. Additionally, he has acted as al Qaeda’s Counterintelligence officer and has been trusted to find spies within the organization. Zubaydah has been involved in every major terrorist operation carried out by al Qaeda. He was a planner for the Millenium plot to attack U.S. and Israeli targets during the Millennium celebrations in Jordan. Two of the central figures in this plot who were arrested have identified Zubaydah as the supporter of their cell and the plot. He also served as a planner for the Paris Embassy plot in 2001. Moreover; he was one of the planners of the September 11 attacks. Prior to his capture, he was engaged in planning future terrorist attacks against U.S. interests.

We’ve long known these assertions to be false. We’ve long known the CIA later admitted these assertions were wrong–as Abu Zubaydah himself revealed when he described his captors apologizing for claiming he was al Qaeda’s Number Three.

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

But as Jason Leopold reports, DOJ has now admitted in court documents that the claims it made in the Bybee Two Memo–the claims it used as a foundation for their entire torture program–were false.

The Justice Department has quietly recanted nearly every major claim the Bush administration had made about “high-value” detainee Abu Zubaydah, a Guantanamo prisoner who at one time was said to have planned the 9/11 attacks and was the No. 2 and 3 person in al-Qaeda.

[snip]

For the first time, the government now officially admits that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,” and was neither a “member” of al-Qaeda nor “formally” identified with the terrorist organization.

All the torture that came after (even the DOD program, given details on DOD’s use of the Bybee Memos to craft their own torture program that appear in the OPR Report) ultimately relied on the analysis DOJ made in the Bybee Memos.

And that analysis was based on information that DOJ now admits to be false.

First we had the Curveball fabrications and the Niger forgeries, and now we have this foundational claim to a false al Qaeda Number Three. Our entire torture regime is based on the same kind of lies and bad intelligence as was the Iraq War.

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86 replies
  1. MadDog says:

    And I wouldn’t be surprised if the Torturers now defend themselves by saying:

    “See, if we hadn’t tortured them, we wouldn’t know all this stuff.”

  3. MadDog says:

    And OT for a moment, kudos to Katie Couric and CBS News for calling it truthfully in this evening’s 2nd story on the 9 arrested Hutaree milita: “Homegrown Terror”.

  4. JasonLeopold says:

    Thanks again, Marcy for shining a light on this story. I hope the excerpt from your post on the number of times Zubaydah was waterboarded (as it related to the 9/11 Commission) I cited was used properly.

    • MadDog says:

      Another fine article Jason!

      Minor quibble: I’m guessing that you are unable to make changes/correct typos after publishing over at Truthout. The section regarding EW’s work seems to be missing a detail:

      …When she revealed last year that Zubaydah had been waterboard times in August 2002, blogger Marcy Wheeler noted that the 9/11 Commission had obtained ” just ten pieces of information are sourced to Abu Zubaydah’s interrogation reports…”

      Probably should read as “waterboarded 83 times”.

    • JasonLeopold says:

      That’s funny that you mention that. The Judy Miller of misinfo on AZ would be Judy Miller herself (I write about her in my upcoming piece). She wrote one of the first big stories on the Millennium plot on Jan. 15, 2001, a 3,300 word report that contained claims about AZ with intel she obtained from Jordan and US intel officials. Miller won a Pulitzer Prize for this story in 2002. It turns out this story was all wrong at least as Zubaydah is concerned as the govt now calims.

      HOLY WARRIORS: Dissecting a Terror Plot From Boston to Amman

      The plot, Jordanian prosecutors say, appears to have resumed in earnest in 1998, soon after Mr. abu Hoshar’s release from prison. According to the prosecutors, he and Mr. Hijazi, who traveled between Jordan, Boston, Turkey, Syria and many other places, recruited at least 10 others.

      It was at this point, prosecutors say, that they made a crucial connection.

      Mr. abu Hoshar asked an Algerian member of his group, Hussein Turi, if he knew anyone in Al Qaeda who could arrange training in Afghanistan for his cell. Mr. Turi told investigators that he had sent a message through an intermediary to Abu Zubaydah, the bin Laden aide responsible for contacts with Islamic militant groups around the world.

      Abu Zubaydah was the nom de guerre for Zein al-Abideen Muhammad Hassan, a 27-year-old Palestinian and former Afghanistan veteran who had risen quickly in Al Qaeda’s ranks. Middle Eastern and American officials describe him as a pivotal figure in the bin Laden network, a trusted militant who assigned candidates screened at his Peshawar, Pakistan, guest house to the dozen or so Afghan camps financed and run by Mr. bin Laden.

      According to Col. Mahmoud Obeidat, the Jordanian chief prosecutor, Abu Zubaydah was a crucial link between local initiative and central command.

      Abu Zubaydah sent back a fax to Mr. abu Hoshar, setting the rules for his dealings with the Jordanian cell, Mr. Turi said. Contacts with him must always be made through one person, who must vouch for those sent to be trained. No one should be coerced into a mission. And those sent to Afghanistan through Pakistan must never call him from the airport or their hotel. The cell readily agreed to the conditions.

      [snip]

      When his training was over in late November, Mr. Hijazi told investigators, Abu Zubaydah met with him privately to give him the oath of allegiance. Abu Zubaydah told him that from then on, he was authorized to act in Mr. bin Laden’s name “anywhere in jihad territories.”

      [snip]

      In the early morning of Nov. 30, Abu Zubaydah called Mr. abu Hoshar. “The training is over,” he said, according to Mr. abu Hoshar’s statement.

      [snip]

      The Jordanians were listening on Nov. 30 as Abu Zubaydah gave the orders to begin carrying out the plot, which he referred to as “al yom alfieh,” or the day of the millennium. “We knew we could wait no longer,” said Colonel Obeidat, the Jordanian chief prosecutor.

      • emptywheel says:

        Glad you’re looking at that one–I’ve looked at it a couple of times, too, bc her sources are clearly the same sources as are behind the MP story itself (or alternately, someone like Richard Clarke was her source and that’s why he’s not responding to your other inquiries, which I’ve long suspected).

        And I keep coming back to 1) Jordanian torture, and 2) Israeli ties to Jordanian intell.

        The implication of AZ in AQ MIGHT be a mistake. (Then again it might not be.) But the implication of AZ in the Jordanian plot has always stunk far worse to me.

        Incidentally, Jeff Stein is out with a long piece on Stephen Kappes. In the dead tree part of it, he says that Qadafi traded Sheikh al-Libi’s name to us to get back in our good graces in 2001.

        Two years earlier, he’d dispatched one of his top operatives, Michigan State–educated Mousa Kousa, to a clandestine meeting in London with top CIA and British intelligence officials. Kousa carried with him the names of some of Osama bin Laden’s closest associates, including Ibn al-Sheikh al-Libi, a Libyan who would soon be the first major catch in the CIA’s pursuit of al-Qaeda.

        But of course, he wasn’t that close an OBL associate.

      • emptywheel says:

        Oh, and one more thing that has always struck me about that piece: the centrality of the telecom to the story.

        So how did we get all this telecom info, and how is it possible it was so wrong?

      • Jeff Kaye says:

        Wow! So Miller returns (the return of the repressed, for you Freudian folks, i.e., the bad penny). I should have known she wasn’t far from this territory. You see, we’re all waiting on that big AZ piece!

      • readerOfTeaLeaves says:

        Well, I don’t want to take you afield or down a rabbit hole, but if I simply try to focus on who Judy-Judy SAYS she got info from, I come up with this pattern:

        HOLY WARRIORS: Dissecting a Terror Plot From Boston to Amman

        The plot, Jordanian prosecutors say, appears to have resumed in earnest in 1998, soon after Mr. abu Hoshar’s release from prison. According to the prosecutors, he and Mr. Hijazi, who traveled between Jordan, Boston, Turkey, Syria and many other places, recruited at least 10 others.

        It was at this point, prosecutors say, that they made a crucial connection.

        Mr. abu Hoshar asked an Algerian member of his group, Hussein Turi, if he knew anyone in Al Qaeda who could arrange training in Afghanistan for his cell. Mr. Turi told investigators that he had sent a message through an intermediary to Abu Zubaydah, the bin Laden aide responsible for contacts with Islamic militant groups around the world.

        Abu Zubaydah was the nom de guerre for Zein al-Abideen Muhammad Hassan, a 27-year-old Palestinian and former Afghanistan veteran who had risen quickly in Al Qaeda’s ranks. Middle Eastern and American officials* describe him as a pivotal figure in the bin Laden network, a trusted militant who assigned candidates screened at his Peshawar, Pakistan, guest house to the dozen or so Afghan camps financed and run by Mr. bin Laden.

        According to Col. Mahmoud Obeidat, the Jordanian chief prosecutor, Abu Zubaydah was a crucial link between local initiative and central command.

        Abu Zubaydah sent back a fax to Mr. abu Hoshar, setting the rules for his dealings with the Jordanian cell, Mr. Turi said. Contacts with him must always be made through one person, who must vouch for those sent to be trained. No one should be coerced into a mission. And those sent to Afghanistan through Pakistan must never call him from the airport or their hotel. The cell readily agreed to the conditions.

        [snip]

        When his training was over in late November, Mr. Hijazi told investigators, Abu Zubaydah met with him privately to give him the oath of allegiance. Abu Zubaydah told him that from then on, he was authorized to act in Mr. bin Laden’s name “anywhere in jihad territories.”

        [snip]

        In the early morning of Nov. 30, Abu Zubaydah called Mr. abu Hoshar. “The training is over,” he said, according to Mr. abu Hoshar’s statement.

        [snip]

        The Jordanians were listening on Nov. 30 as Abu Zubaydah gave the orders to begin carrying out the plot, which he referred to as “al yom alfieh,” or the day of the millennium. “We knew we could wait no longer,” said Colonel Obeidat, the Jordanian chief prosecutor.

        * Chalabi could fit this description, for heaven’s sake.

        So if this whole thing appears to be sourced to ‘a Jordanian prosecutor’, that’s a facade. The term ‘prosecutors’ could actually include anyone inside DoJ or DoD, couldn’t it?

        I trust you to solve this problem.

        Honestly, I couldn’t say whether this ‘Jordanian prosecutor’ actually spoke to Judy-Judy, or whether she is re-telling a story that he told someone else, who then told her (so that she’d print it). I think the latter is the most likely scenario, but I defer to the real brains around here.

  7. Jeff Kaye says:

    That was another great article, Jason. You and Marcy are on a tear (though really, of course, excellent work from both of you has been pouring out for a long time now).

    I am excited to see your promised article on AZ, based on the many interviews you have done.

    So the govt now says it wishes to deny habeas because AZ was ostensibly “‘part of’ hostile forces and ‘substantially supported’ those forces.” In other words, it’s the old enemy combatant song. By indirect logic, they are admitting that anyone they label a “part of” hostile forces or “substantially support[ing]” them can be tortured, waterboarded 83 times.

    Amazing!

    Thanks for all your work on this.

    • JasonLeopold says:

      Thanks Jeff and thanks for all of your excellent feedback yesterday. I appreciate that. I have to say, however, I have spent two days digging through documents, interview notes, etc, and trying to put this into plain English, and I am fried. That Marcy does this everyday, several times a day with a wide-range of documents and report shows how truly, truly gifted she is.

      The court documents related to this story is 109 pages and I only have a hard copy so I apologize to everyone that it’s not posted with the story. I will do my best to get it scanned ASAP. There is quite a bit of info in there that goes far beyond what I wrote and gets deep into the weeds, as Marcy would say.

      • Jeff Kaye says:

        That Marcy does this everyday, several times a day with a wide-range of documents and report shows how truly, truly gifted she is.

        She has a prodigious memory, and an ability to synthesize great reams of material. It is truly remarkable.

      • bobschacht says:

        I have to say, however, I have spent two days digging through documents, interview notes, etc, and trying to put this into plain English, and I am fried. That Marcy does this everyday, several times a day with a wide-range of documents and report shows how truly, truly gifted she is.

        Although we’re probably in EPU-land, as one who has occasionally attempted to write a diary (lately mostly in The Seminal), I have to add my Amen! Jason’s blogs are awesome, and EW’s even more so. I can only manage about one a month!

        Bob in AZ

  8. readerOfTeaLeaves says:

    For the first time, the government now officially admits that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,” and was neither a “member” of al-Qaeda nor “formally” identified with the terrorist organization.

    … still sputtering…!

    EW and Jason, kudos.
    This is dizzying.

    • MadDog says:

      I’m guessing that it will be used to continue to hide the ball.

      After all, other than Abu Zubaydah, the American public, and the Rule of Law, who could possibly benefit from truthtelling?

  10. allan says:

    Our entire torture regime is based on the same kind of lies and bad intelligence as was the Iraq War.

    Which is worse, that Bush and his people did this, or that no one in Congress called them on it?

  12. Akatabi says:

    So is Bybee making a legal argument that the perceived rank of the subject determines what degree of interrogation is permissible? Saying he’s cool with 11 days of sleep deprivation for an AQ#3 but only would go to 9 days for an AQ#6?

    I can see political and operational rationales for wanting info more ardently from higher-ups, but is there any legal foundation not coming from Bybee/Yoo/Addington’s rectums to justify differential torture based on rank? Only thing I come up with offhand is trivial stuff like housing officer POWs separate from enlisted ranks.

    • PJEvans says:

      has Bybee been reading the ‘Jurisdiction Space’ novels?
      Because that’s the kind of torture system they’re using – how bad it is depends on the kind of crime you’re accused of, but it’s also part of the punishment (up to and including a really bad way to die).

  13. MadDog says:

    Totally OT – Spencer is on the ball and catches this:

    Iranian Nuclear Scientist Defects: ABC News

    And from the exclusive ABC News report:

    …Iran’s Foreign Minister, Manouchehr Mottaki, and other Iranian officials last year blamed the U.S. for “kidnapping” Amiri, but his whereabouts had remained a mystery until now.

    According to the people briefed on the intelligence operation, Amiri’s disappearance was part of a long-planned CIA operation to get him to defect. The CIA reportedly approached the scientist in Iran through an intermediary who made an offer of resettlement on behalf of the United States…

    As all believed this was the most likely reason for his “disappearance”, even Captain Renault is not shocked.

  14. JohnLopresti says:

    MadD@11. I have yet to click thru to the other article. However, I think the chemistry of which JudeJude was a part, might have a similarity to the fabrication in the AZ matter. I need to do some research, to learn some of those answers. Summarizing, I think there is a lot more than DcI required to develop the initial profile in a way that would be sufficient to galvanize Yoo into fax mode; then, at the **government** recanting, some other scapegoating of curveballish sources. Further, I would ask, who was the Colin Powell who analogously could not voice the data from the AZ falsified profile. Tenet may have had 16 words and slam dunk, but I suspect he checked sources outside the then-new stovepipes for the AZ erroroneous biography.

  15. wavpeac says:

    I know that the will is weak on this…but why couldn’t the American people charge bush co for treason based on this pattern of lies…it just seems like in the larger picture…the truths are more impressive. How many lost e-mails, how many lies. At some point it’s obvious, isn’t it? It just seems like there should be a way to charge them all as co-conspirators and charge them with lying us in to war and torture. Treason. I know…I know…

    • bmaz says:

      Treason is the only direct crime delineated in the Constitution and is stated in Article III, Section 3 as follows:

      Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

      Much as I dislike the Bush/Cheney brigade, their conduct does not really meet the definition.

      • PJEvans says:

        I seem to recall that it also requires witnesses to overt acts – merely lying us into a war doesn’t do it.

        • bmaz says:

          Honestly, it really is not; as bad as they are – and there are all kinds of crimes and misdemeanors they have committed, in both the literal criminal code sense and in terms of impeachable offenses under the Constitution – but treason just really does not fit.

          • timbo says:

            Treason would occur if they actually gave money and aid to Al Qaeda, right? So, I ask, is torturing innocent people because they happen to be in the wrong place at the wrong time providing or not providing aid and comfort to Al Qaeda?

            Further, it appears that there was a criminal conspiracy to violate their oaths of office, not just a simple matter of incompetence, going on in the case of the Cheney contingency. Let’s take a look at nutty Scalia too, while we’re at it, parsing legalese to make it look like torture is not all that unusual and maintaining that it is not punishment. Seriously, the hubris of these people is not just contempt for most of the people they govern and rule on but also contempt for the Constitution itself. They don’t believe in fairness and justice where it interferes with their power.

            I understand that caution that some have with regard to calling treason, Treason as defined under the Constitution, but, seriously, there should be a crime called “Contempt of Constitution” or something to handle the case that these Small Men have caused to exist.

      • ThingsComeUndone says:

        Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

        Much as I dislike the Bush/Cheney brigade, their conduct does not really meet the definition.

        define enemies as internal then a war under false pretense fake WMD gets Darth and Judy under the firing squad.

        • eCAHNomics says:

          Judy’s protected because she was part of the propaganda against the external enemy. Cheney ditto, as the creator of such propaganda. Ya gotta think they way they do.

  16. bmaz says:

    Since nobody else has asked, I must. How many of the streaming plethora of the al-Qaida “Number Threes” we have captured or killed are totally bogus? I mean, crikey, there has been about a hundred of them……

  17. skdadl says:

    I have to go back and read Jason more carefully, but this is hugely important to a number of cases we have here, where we know and/or suspect that CSIS (our intel people) have relied for years on tainted testimony from Abu Zubaydah. And our guys can’t be the only ones who’ve done that.

  19. oldoilfieldhand says:

    Thank you Marcy! Please keep bringing the heat! Dick and Dickless Cheney must be as nervous as long-tailed cats in a room full of rocking chairs.

  21. MadDog says:

    Tangentially on topic, the Guardian has some new photographs of life at Gitmo.

    Be sure to view photograph 5 with its caption of:

    “Detainees are chained while they watch television or sit in the common area”

    and photograph 9 with its caption of:

    “Guards in a common room at Camp 6, where detainees are shackled while they watch television”.

  23. orionATL says:

    A. american torture,

    torture by america’s most perpetually incompetent, perpetually dishonest, and perpetually willingly and joyfully malevolent bureaucracy –

    the central intelligence agency of the united states of america.

  25. orionATL says:

    pjevans @46

    tx.

    i stand corrected.

    “going forward”:
    does anyone remember the assessments of cia assessments of soviet missle might following the fall of the soviet union in 1989-1991?

    my recollection is that the cia had repeatedly overestimated soviet missile capabilities.

    p.s.

    sara, where are you?

    corrections

    to my recollections?

    greater detail than i can provide might put the current crisis of confidence in the cia in historical perspective.

    • PJEvans says:

      I seem to remember that the cia had overhyped a lot of soviet stuff, possibly because that’s what their people were being told. (Robert Heinlein and his wife visited Moscow, at a time when its official population was several million, and their estimate, based on what they were seeing, was more like one million, max.)

  26. orionATL says:

    jeff ksye @26

    (and jason leopold).

    it’s the kind of memory.

    regular memory takes work;

    emotional memory sticks instantly.

    my guess is ew cares a LOT about what she works on – or what’s the same, only works on what she cares about.

    doing so paves the way for emotional memory to work its dendron magic.

  27. stryder says:

    Looks like Chalabi is still at it

    http://www.juancole.com/2010/03/chalabi-moves-to-disqualify-6-elected.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+juancole%2FxAWt+%28Informed+Comment%29&utm_content=My+Yahoo

    Tuesday, March 30, 2010
    Chalabi Moves to Disqualify 6 Elected MPs, Demote Allawi’s Party to Runner-Up

    This further wrinkle in the Iraqi election outcome underlines how unwise is the rush among American pundits, mainly on the political Right, to declare the election a vindication of George W. Bush’s invasion of Iraq. Hey, warmongers: get it through your heads. You went to war on the grounds that Iraq was a grave danger to the US and might even nuke us. That was untrue and ridiculous. You don’t get any mulligans in the invasion game. Nothing would vindicate Bush save proof that Saddam Hussein’s regime was really dangerous to the US. It wasn’t.

  28. JasonLeopold says:

    One more tidbit that I just added to the story (which is not really news I don’t believe). My emphasis in bold.

    Petitioner’s Discovery Motion also renews Petitioner’s earlier request for medical records and other records covering the period during which Petitioner was i~ the custody of the CIA, and seeking an in~person medical evaluation. (PeCr’s Mem. at 31-37; Request Nos. 79, 80). These requests should be denied because the Government’s factual return does not rely on any statements Petitioner made while in U.S. custody, and so information about Petitioner’s treatment or condition while in U.S. custody is unlikely to result in the discovery of exculpatory evidence.

    Petitioner initially requested the records and in-person medical evaluation in his Emergency Motion to Produce CIA Medical Records and Allow In-Person Medical Evaluation (June 9, 2009). Respondent opposed these requests because they seek information to substantiate claims of torture, and this Court lacks jurisdiction to consider such claims. ~ Husayn v. Gates,
    558 F. Supp. 2d 7, 1I (D.D.C. 2008) (Roberts, J.); Resp’fs Opp’n to Pet’r’s Emergency Mot. to Produce CIA Medical Records and Allow In-Person Medical Evaluation (dkt. no. 18); Classified Supp!. to Resp’t’s Opp’n to Pet’r’s Emergency Mot. to Produce CIA Medical Records and Allow In-Person Medical Evaluation (June 12,2009); Resp’t’s Suppi. to Its Opp’n to Pet’r’s
    Emergency Mot. to Produce CIA Medical Records and Allow In-Person Medical Evaluation (June 22, 2009).

    Moreover, because the Government’s factual return does not rely on any
    statements Petitioner made while in U.S. custody, information about Petitioner’s treatment or condition while in U.S. custody is unlikely to result in the discovery of evidence that would undermine the factual basis for Petitioner’s detention.     ~ CMO § I.E.2 (providing that any request for limited discovery in this case must “explain why the request, if granted, is likely to produce evidence that demonstrates that the petitioner’s detention is unlawful” and “explain why the requested discovery will enable the petitioner to rebut the factual basis for his detention”). Respondent further objected that it would be extremely burdensome for the Government to
    identify and produce the requested records, and so Petitioner had failed to “explain why the requested discovery will enable the petitioner to rebut the factual basis for his detention without unfairly disrupting or unduly burdening the government,” CMO § I.E.2. Respondent also noted the Court’s earlier observation that a request to interfere with Petitioner’s medical treatment at Guantanamo should be treated as a request for injunctive relief.

    The reasons stated in Respondent’s previous memoranda make it inappropriate to compel production of records and an in-person medical evaluation under §1.£.2 of the CMO. Respondent hereby opposes Petitioner’s Request Nos. 79 and 80 on the grounds stated in its three previous memoranda and incorporates its three previous memoranda by reference.

    • powwow says:

      Great work, Jason.

      A few FWIW comments after reading your 3/30 article:

      You’ve got Zubaydah originally being arrested in March, 2002 in both Afghanistan (earlier in the article) and in Pakistan (later in the article).

      I wondered which district judge this habeas case is in front of.

      [Not to hound you, but since it’s such an important fact, note that there’s still an “ed” missing from “waterboard” before the number 83.]

      Although I read it pretty carefully, the chronology is a bit unclear to me, but I take it most of your article is drawn from a (just-declassified, or non-public?) government response (to discovery request #21) issued late in 2009, sometime? And that Zubaydah’s habeas case is meanwhile on indefinite hold because of the Durham investigation?

      • JasonLeopold says:

        Oh thank you so much for catching all of this! Crap!!! Going to correct it immediately and address the other q’s in the article as well. I really appreciate it.

        Sorry about it being confusing. Let’s see if I can clean it up a bit. In the meantime:

        The case is before Judge Richard Roberts. The filing was just unclassified but it was filed last fall. I was only able to obtain a hard copy. It’s 110 pages. It’s the government’s response to 213 “numbered requests for discovery” made by Zubaydah’s attorneys. Discovery request #21 was the government’s response to evidence Zubaydah’s attorneys sought about his involvement in 9/11 and other terrorist attacks. I’ll try to clean that up to make it clearer.

        The government requested that the judge issue a stay on further evidentiary proceedings while Durham investigated the torture tape destruction. But it’s unknown if Judge Roberts ruled on that since the info has not been released.

        Let me know if this answers your questions. I am going to tweak the story some more in hopes of making it flow better and work on the chronology too.

        • burnt says:

          Jason, that 110-page hard copy can be made digital (and searchable). Run it through pretty much any modern copier and you can save it as a pdf. Fujitsu ScanSnaps are nifty little machines that will turn hard copies into searchable documents in a matter of seconds.

          Alternatively, send it to me and I’ll turn the dead trees into bits and bytes.

        • powwow says:

          Let me know if this answers your questions.

          Very much so, Jason! Thank you for the further explanation. [Which, among other things, helps highlight that the government took about six months to declassify what it knew to be a very significant filing, and meanwhile the defense attorneys had to remain mum, and even today can’t tell us the current posture of the habeas appeal of their long-suffering client…]

      • harpie says:

        O/T
        Hi powwow,
        I’ve been hoping to catch sight of you somewhere for the past few days because of the following, written by Jack Balkin. His assertions seem incorrect to me, but I was wondering if you’d seen it:

        What happens next– and what hasn’t changed; Jack Balkin; 3/28/10
        http://balkin.blogspot.com/2010/03/what-happens-next-and-what-hasnt.html

        He keeps repeating the idea that the Senate needs 60 votes to pass legislation, and that now that will be impossible.

        […] The President must get the Democrats in the Senate to do what they were unwilling to do in 2004 and 2005 when the Republicans were in control: reform the filibuster rules and the rules on holds. […]”

        If you’re interested in responding, just tell me where to look [UT or The Seminal?] Thanks. :-)

        • powwow says:

          Hi, harpie. Thanks (I think) for pointing me to the latest reckless piece about the Senate and the filibuster by Jack Balkin and his law professor cohorts at Balkinization.

          As I mentioned somewhere along the line here in a comment to selise, I’ve been appalled at the dreadful quality of the argument and ‘scholarship’ on this topic by the law professors there who’ve been arguing, as Balkin does here, that the Senate “reform the filibuster rules and the rules on holds,” without, usually, as again, Balkin fails to do here, even citing the rule they think should be changed or in what way.

          Balkin and the others there are making partisan political arguments, which they hope people will mistake as well-reasoned, legally-sound, process arguments based on a careful study of the Senate. But, as you noted, Jack Balkin demonstrates none of the latter in that post [except for his passing recognition that we have a Congress trying to act like a Parliament, absent a Parliament’s checks on the Prime Minister – such as the ability to kick him out of his job on basically any grounds], as he openly advocates for this particular President to have his way with the Congress, as Obama just did on the health reform legislation that Balkin supported.

          selise and I wrapped up our “working thread” series on forcing the real filibuster on Monday with this third Seminal diary, which is what I would point to (starting with the comments before the diary itself probably) for anyone who wants a comprehensive response to Balkin’s ongoing campaign against what he calls “the filibuster.”

          Like Ezra Klein, who’s now spouting off about the issue in similar fashion in Newsweek, Balkin is on a personal campaign to demonize and destroy a Senate tactic (the real filibuster) that hasn’t been utilized in the Senate in almost two decades. If Balkin allowed comments to his posts, someone might even have pointed that out to him.

          What’s really going on in the Senate today as a result of the majority’s response to alleged (private) threats to filibuster by the minority, is probably best illustrated for partisans like Balkin and Klein with this question:

          How would they respond if, whenever the Senate (Republican) minority doesn’t like a piece of legislation that the (Democratic) majority wants to bring to the floor, or wants to block a nominee of a (Democratic) President, 16 Republican Senators immediately sign and file a cloture motion under Rule 22 (which nowhere prevents, to the best of my knowledge, the minority ‘side’ from filing a cloture motion), thereby requiring a 60-vote supermajority margin for passage of that legislation or nomination (which the Democrats now don’t have) instead of bothering to conduct a physically-strenuous real filibuster? [At least until the majority withdraws the legislation or nomination from the floor altogether, which has the same effect, as far as the minority is concerned.]

          I wonder, because that’s exactly the abuse of Rule 22 cloture that the majority Democrats are currently employing, by constantly filing cloture motions in the absence of real filibusters, in a way that the cloture rule was never intended to be used when first adopted in 1917, and was not in fact used for at least half a century after that.

          Yes, there’s an abuse of the rules ongoing in the Senate, which is preventing the Senate from working as designed and as provided for in current rules. But it is within the power of the Democratic majority to stop that abuse without changing any rules or abusing some other rule, as our real filibuster diaries/threads carefully explain and demonstrate in detail.

          Until that majority ceases its abuse of the cloture process, the Democrats (not the Republican minority) will continue to force supermajority rule on the Senate simply because their leadership is too afraid, apparently, of genuine debate, to force the real filibuster (and with it, simple-majority rule) back into the Senate instead. And no doubt partisan observers like Balkin will continue to blame the Republicans for those (voluntary) actions of the Democrats.

          I’ll close with the wisdom of Senate President pro tempore Robert Byrd, from a “Dear Colleague” letter he wrote in February on this subject – wisdom born of long experience, that Jack Balkin, among others, would do well to heed:

          During my half-century of service in various leadership posts in the U.S. Senate – – including Minority Leader, Majority Leader, Majority Whip and now President Pro Tempore – – I have carefully studied this body’s history, rules and precedents. Studying those things leads one to an understanding of the Constitutional Framers’ vision for the Senate as an institution, and the subsequent development of the Senate rules and precedents to protect that institutional role.

          I am sympathetic to frustrations about the Senate’s rules, but those frustrations are nothing new. I recognize the need for the Senate to be responsive to changing times, and have worked continually for necessary reforms aimed at modernizing this institution, using the prescribed Senate procedure for amending the rules.

          However, I believe that efforts to change or reinterpret the rules in order to facilitate expeditious action by a simple majority, while popular, are grossly misguided. While I welcome needed reform, we must always be mindful of our first responsibility to preserve the institution’s special purpose. The occasional abuse of the rules has been, at times, a painful side effect of what is otherwise the Senate’s greatest purpose – the right to extended, or even unlimited, debate.

          If the Senate rules are being abused, it does not necessarily follow that the solution is to change the rules. Senators are obliged to exercise their best judgment when invoking their right to extended debate. They also should be obliged to actually filibuster, that is go to the Floor and talk, instead of finding less strenuous ways to accomplish the same end. If the rules are abused, and Senators exhaust the patience of their colleagues, such actions can invite draconian measures. But those measures themselves can, in the long run, be as detrimental to the role of the institution and to the rights of the American people as the abuse of the rules.

          […]

          Extended deliberation and debate – when employed judiciously – protect every Senator, and the interests of their constituency, and are essential to the protection of the liberties of a free people.

          With kind regards, I am

          Sincerely Yours,
          Robert C. Bryd

          • harpie says:

            Thanks so much, powwow and selise! I kept looking for something on powwow’s page, and didn’t think to check yours, selise. duh! [Absolutely no need to apologize!] I’ll read through that thread and comments later today.
            Your point that Balkin et al are making partisan political arguments pretty much echos my feeling when I read the post. It’s interesting that this is similar to what may be happening in the Gregg Craig/Robert Bauer story which might have long term devestating effect on detainee issues, and makes me even more worried about McCain’s Enemy Belligerant Act. Scott Horton talks about here:
            http://www.harpers.org/archive/2010/03/hbc-90006803
            Horton quotes Dan Froomkin, here:

            Craig took the campaign pledge seriously and objected to the notion that legal policy questions surrounding the criminal justice system generally and decisions to prosecute individuals in particular could properly be part of the political give-and-take. Emanuel viewed them as a platform for bargaining with Republicans.

            Let us know if you get a response, selise.
            Thanks, again, to both of you.

        • selise says:

          OT to harpie and powwow,

          yikes! i guess the least i can do is email jack balkin (as he does have an email addy posted on his site) to ask what is the basis for his claim, “For each of these measures, the President will need 60 votes in the Senate,” what filibuster and hold rules he is referring to and the language of the changes he proposes. (which i have just sent)

          while i’m ot on the subject, i did call the sp’s office today and the person i’d spoken with previously is out this week but expected to be in next tues and/or wed. i will try again then.

          p.s. my apologies for jumping in on your conversation — i have my rss feed is set up to pick up my name, so even if i’m not reading a thread i’m likely, as in this case, to see a comment where my name is used.

          • powwow says:

            the least i can do is email jack balkin…(which i have just sent)

            Right on, selise.

            [I hope Jack has an open mind, even if he does seem to display an implicit hostility to letting representative self-government self-govern, in all its democratic fractiousness, independent of Party control…]

            Thank you for the update about the SP’s, and for so-helpfully “jumping in” – which you’re welcome to do any time, “helpfully” or otherwise.

            P.S. To harpie – the line that really got to me in that Horton post, was in this excerpt of Anne Kornblut’s “reporting” on her beloved Office of the Presidency:

            Bauer started the job the month after Attorney General Eric H. Holder Jr. announced a civilian trial in New York — a brazen decision that has since been dropped [except that it hasn’t been dropped, according to Michael Isikoff’s equally-poor current “reporting” in Newsweek].

            • harpie says:

              Me too, powwow! It totally left me speechless…and clearly shows one insidious means by which the media/political complex deliberately manipulate the minds of We,the Serfs: “not with a bang, but a whisper.”

  29. tjbs says:

    A post 9-11 view would argue against treason.

    A view from the 2000 election including the 9-11 event is in fact treason. Awaiting the proof in a no holds barred criminal investigation of that event including the questioning, for hours under bright lights, bush, cheney, rummy, condi and ashcroft. (Gonzo not so much, as he has a terrible memory) We refuse to search for the truth, not a convenient constructed reality, that covers the over throw of the legitimate government.

    When the constitution was not defended that’s treason. Conspiracy to secretly torture and randomly murder innocents on lies like Niger docs is Treason.
    Treason is like pornography you know it when you see it. Most Americans refuse to accept what truth reveals.

    • harpie says:

      This is what I was thinking. Bush v. Gore seemed like a coup. [Don’t know if I’m using a correct term here.] It seemed they might have had some things already in train since the election: making Abu Zubaydah into a leader of al Qeada; the Niger Embassey in Rome was broken into in early January 2001; the seemingly sudden mess-up by the CIA of the FBI investigation into the Cole bombing. Then again, maybe I’m not making any sense. I’m off for another cup of coffee.

    • bobschacht says:

      When the constitution was not defended that’s treason.

      Well, if that’s the case, then practically the entire Congress is guilty of treason, from Speaker Pelosi on down.

      Bob in AZ

  30. wavpeac says:

    All I know is that I want to see them labeled with something BAD. Treason seems bad. I thought there was something about lying to congress…and it seems like they did lie to congress. I know there was all this talk about what a “lie” is at the time…but in retrospect doesn’t that seem clearer…?? Facts can be such a pain in the A**. But I guess the whole point is that they deserve the full benefit of our laws. (it would be nice if we could all count on that, however).

  31. orionATL says:

    continuing from 52

    and of course nothing beats a fine-toothed chronology for revealing human behavior, social network as well as individual, and for suggesting intent.

    and ew is the queen of chronology.

  32. bobschacht says:

    EW,
    I’m trying to catch up to your prodigious and ground-breaking work in the past 24 hours– for which many thanks!

    Your opening quote block refers to “imenogations of Abu Zubaydah”.
    “imenogations” = interrogations?

    Thanks!

    Bob in AZ

  33. Synoia says:

    I don’t believe this is factually correct:

    Our entire torture regime is based on the same kind of lies and bad intelligence as was the Iraq War

    You are being too kind. This, is more probable:

    Our entire torture regime is based on the same kind of lies and bad intelligence acquiring all the Iraqi Oil, as was the Iraq War

  35. ThingsComeUndone says:

    That and your case while amazing will never get mentioned while mini me Darth is on tv in fact mini me Darth will get more tv time.
    I dare the *cough* liberal media to put Eric Ericson in front of you to debate without him trying to drag you off topic.
    Or try and yell the entire time you are talking. I suggest hitting him.

  36. bluewombat says:

    Can Holder get David Margolis to whitewash this one also?

    Thank you so much for staying on top of this issue, Marcy.

  37. selise says:

    OT to powwow @79 and harpie @69, i did get a reply (two actually), one with this reference. i’ve asked permission to quote from the emails (actually i asked if there was anything, other than the references, he request i don’t quote – a request i will honor should he ask in the next day or two). it was a frustrating exchange, but at least it provides me with some extra motivation to attempt to write a diary or two on the subject.

    • harpie says:

      Great work, selise! I can sure believe “frustrating” is a nice way to put it. Oy! Where have we seen that reference before? I learned a lot from reading through that third thread powwow linked me to yesterday! [Maybe Balkin would, too.] As usual…learning a lot is not very good for the stress level. :-/

    • powwow says:

      Hmmm… So a law professor took as gospel one article by an internet journalist, who appears confused about (or even oblivious to) the key differences between optional Rule 22 cloture motion process and standard Senate procedure – and who was himself drawing on a hopelessly-muddled “memo” (containing clear error) generated by the office of the self-interested Democratic Majority Leader, backed up by some odd statements by a former Senate Parliamentarian made in reply to unseen questions from that reporter – or, at least, pretended to take that article as gospel, in order to fob off a member of the ‘unwashed public’ for daring to question his rationale for emphatically stating, more than once, that “the Senate must be reformed” because “the Democrats still need 60 votes in the Senate to pass major new legislative initiatives.”

      I think “unfortunate” may well be too kind a description for that year-old Ryan Grim article at HuffingtonPost, if even the likes of Jack Balkin continue to swallow it whole.

      Also, what harpie said @ 83.

      • selise says:

        Hmmm… So a law professor …

        not exactly. more like the “knight professor of constitutional law and the first amendment” at yale law school.

        sigh.

        if i ever see a post from him complaining about the political ignorance or disinterest of the american public, i’m going to be seriously pissed.

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