David Passaro Threatened to Expose the SERE-Torture Tie

As I said in my last post on David Passaro, the only CIA guy to be prosecuted for detainee abuse, Passaro knew (or learned, in anticipation of his indictment) how to defend himself against charges stemming from torture. As I’ll show here, he was trying to expose the tie between SERE and the government’s torture program in spring 2004, long before it became public.

Passaro Prepared to Deal with Criminal Charges

As his pre-indictment lawyer described, from the time he received a target letter in February 2004 until he was arrested in June, he continued to work–with security clearance–at Fort Bragg, collecting information that might be helpful to his defense.

[H]e was gathering documents and information he felt would be helpful to his defense, which he would deliver to me, and in the event of his being charged, would see were delivered to me.


David continued to meet with me regularly on the matter, to assemble material helpful to his defense, and to take steps to raise funds to retain counsel if he were indicted.


Despite [knowing that an indictment was imminent, Passaro] continued to report daily to his top secret Fort Bragg post, continued to meet with [Beaver] on a weekly basis, continued to try and raise money for his defense and continued to accumulate documentary evidence to assist me in his defense.

During this period, Passaro’s lawyer tried to get discovery from the government; DOJ lawyers told him that they wouldn’t turn over information unless and until Passaro was indicted, and at that point, it would be subject to CIPA.

The Government Tried to Prevent Passaro from Using What He Knew

It appears that, after the indictment, the government worked quickly to prevent Passaro from using any of the information he had collected. The week after the indictment, the government moved to get a protective order, protecting not just classified documents, but also “any information or document … that refers to national security or intelligence matters.” More troubling, the day after the hearing on the protective order, the government got a warrant to seize a briefcase Passaro had. Passaro had said publicly that the briefcase included “legal materials.” But it took 11 months for the government to even ask the judge to check whether two manila folders inside the briefcase were protected by attorney-client privilege.

Clearly, it seems, the government was worried about that Passaro might use information he already knew.

In the months after the government moved (in June) and got (in August) this protection order, they stalled on both getting Passaro’s lawyers security clearances and on turning over any evidence to him.

Then, all of a sudden, in October, they changed their minds. When, on October 5, Passaro plead not guilty, the Court expressed some concern that the delay on clearances was impinging on Passaro’s right to a speedy trial. A week later, at a hearing on the matter, the government announced that they had decided that the trial was not a big fight over classified information after all, but instead a simple assault case. They claimed they could try it without classified information.

Passaro Used Two (Plus) of John Yoo’s Favorite Torture Defenses

And Passaro’s immediate response was, best as he could, to act on the information he had. In the first several months of November, Passaro’s legal team initiated two of the legal strategies they would try to take to the Supreme Court.

Jurisdiction: Remember that post I did showing how Jennifer Koester and John Yoo, in the early months of 2003 (that is, before Wali’s death), put together a set of Legal Principles that–among other things–said the only two crimes a CIA person conducting detainee interrogations could be convicted of were Torture and War Crimes?

CIA interrogations of foreign nationals are not within the “special maritime and territorial jurisdiction of the United States where the interrogation occurs on foreign territory in buildings that are not owned or leased by or under the legal jurisdiction of the U.S. government. The criminal laws applicable to the special maritime and territorial jurisdiction therefore do not apply to such interrogations.

Passaro argued a version of that (bmaz will elaborate in a later post), saying that the Asadabad base was outside of the maritime and territorial jurisdiction of the US, and therefore any crimes there couldn’t be prosecuted.

Public Authority Defense: This is a defense that argues that an illegal act was undertaken in response to a request from an agency of the government–a defense particularly useful to CIA people who are routinely asked to do things that violate US law. It’s slightly different from a Commander-in-Chief defense (though Passaro would try a version of that, before too long), but Passaro did invoke Bush’s authority as part of this defense. More importantly, he invoked the whole regime of authorization for torture as part of his defense (remember, the Bybee One memo was leaked in the weeks before Passaro was indicted).

Both of these defenses, notably, invoked the kind of Get Out of Jail Free Card that John Yoo and David Addington envisioned when they crafted the Bybee Memo in July 2002. Passaro knew how to say that CIA interrogators couldn’t be held responsible for crimes committed during CIA interrogations.

But Passaro did more than that. He also asked for a bunch of damning information that struck at the core of the Bush Administration’s torture regime.

Passaro Knew the Torture Program Was Based on SERE

Though Passaro had started to ask for this information starting in May 2004, here’s just some of the information he requested in the weeks following the government’s proclamation that they were going to try this as a simple assault case:

  • “All information in the possession of HQ regarding SERE (Survival, Evade, Resist, and Escape) School and training”
  • Interrogation rules of engagement
  • Any governmental plan giving advance approval to kill or capture terrorists
  • A range of communications from Asadabad, including a specific request for Sat Phone tapes or transcripts and “High Side” communications about Wali’s death

We’ve talked about the request for “High Side” communication before. And the request for “advance approval” would get you rather close to the September 17, 2001 Presidential Notification for CIA capture and detention program.

But I’m particularly interested in the other two bits.

Passaro, a SERE-trained Delta Force veteran working at Fort Bragg with some kind of clearance asked for a description of the SERE training he presumably endured in the 1980s. And he asked for CIA’s rules of engagement for interrogation. Which, we now know–but he apparently intended to prove in spring 2004–were based on SERE techniques.

In response to the request for information on SERE training, the government responded, in January 2005,

The defendant’s demand for production of SERE training material, in addition to being so ill-defined as to be as a practical matter nearly indecipherable, is groundless. There is no reasonable basis to contend that the sort of assault with which the defendant is charged, including brutal booted kicking of the victim is justified by this or any other training program. The Court need not go further than the understanding of the acronym Survival, Evasion, Resistance and Escape. This is not a DOD interrogation program and is therefore irrelevant to the pending assault charges. While the nature of SERE training might be admissible should the Government choose to offer it in rebuttal to some specious claim mounted by the defense, there is no legitimate basis to require its production pre-trial.

To which Passaro responded,

2. Mr. Passaro’s Request Nos. 5 & 8 seek evidence of the interrogation rules of engagement and practices in effect for suspected members of the Taliban, al Qaeda, and other terrorist organizations. (D.E. #51). The government refuses to produce this evidence and characterizes it as “groundless.” (D.E. #81. at 10, 12). Mr. Passaro respectfully submits that interrogation rules and practices are directly material to the public authority defense in a prosecution based on alleged acts which occurred during the interrogation of a suspected terrorist. With respect to Request No. 8, Mr. Passaro is fully prepared to present evidence of the “migratory patterns” of interrogation practices utilized by Department of Defense personnel and those utilized by other government agencies.

3. With respect to the relevancy to the public authority defense of Request No. 5, information regarding Survival, Evade, Resist and Escape Training (SERE) which Mr. Passaro endured while in the Special Forces, the attached New York Times article reports: “Many of the interrogation techniques in the C.I.A.’s list were adopted from the Air Force’s Survival, Evasion, Rescue, and Escape training program.” David Johnston, Neil A. Lewis and Doug Jehl, Nominee Gave Advice to C.I.A. on Torture Law, N.Y.Times, January 29, 2005, at A1 (Attach. 1, p.2). Unless the government contends that the Army’s SERE training is nothing like the Air Force’s SERE training, it cannot maintain that “there is no legitimate basis to require its production.” (D.E. #81 at 11).

You know that superb report put out by SASC in 2008 (and declassified in 2009) showing how torture authorities migrated from Thailand to GItmo to Afghanistan (where Passaro was stationed) and Iraq? Passaro was promising he could make that argument–in Court–in 2005. And the assertion that the US torture program was based on reverse engineered SERE techniques–Passaro cites the NYT piece, one of the first pieces of public reporting to make the connection, nine months after he first made it–has since been extensively documented.

The point being, David Passaro, a SERE-trained veteran and CIA contractor who spent four months working with clearance at Fort Bragg waiting to be indicted for torture-related crimes, knew exactly how to respond. In addition to mobilizing some of John Yoo’s favorite defenses, Passaro asked for the evidence he needed to prove that the government had reverse-engineered SERE techniques and approved them for use on detainees.

Which, depending how the jury was to interpret the evidence surrounding Wali’s death (remember that the jury appears not to have believed that Passaro used his flashlight on Wali), is precisely what Passaro did with him.

As we’ll see in an upcoming post, the government probably violated rules of discovery to prevent Passaro from making that case.

Passaro’s Timeline

February 10, 2004: Passaro gets a target letter

February 12, 2004: Passaro engages Gerald Beaver for pre-indictment representation

May 7, 2004 (followed by letters on May 14 and May 18): Passaro asks for a range of evidence, including SERE training resources and rules of engagement

May 18 and May 25, 2004: DOJ responds that such materials will not be made unavailable unless and until Passaro is indicted and then only under CIPA

June 17, 2004: Passaro indicted

June 18, 2004: Passaro files a request for discovery

June 24, 2004: Government moves for a protective order covering “any information or document … that refers to national security or intelligence matters” and requiring the construction of SCIFs for the trial

June 25, 2004: Pursuant to a warrant, US Marshal seizes Passaro’s briefcase, knowing (because of a comment of his) that it included “legal materials”

August 2, 2004: With a few changes, the Court accepts protective order

October 5, 2004: Passaro pleads not guilty; Court expresses concern about speedy trial because of delays on clearances for Passaro’s legal team

October 13, 2004: Government changes position on case and asserts “this is a simple assault case. We believe we can try this case without any classified information utilized;” Court Security Officer gives interim clearances for Passaro’s defense team

October 27, 2004: Government admits its has classified discovery for Passaro, though doesn’t turn it over right away

November 11, 2004: Passaro first argues that the government had no jurisdiction to charge assault

November 12, 2004: Passaro first argues that he operated under Public Authority; Passaro reiterates his request for SERE and interrogation information

May 20, 2005: Government alerts Court to seized briefcase (see June 25, 2004) and asks it to check two manila folders to see if they include privileged lawyer-client information

48 replies
  1. klynn says:

    For a moment, I thought I was reading a Clancy novel.

    This is amazing.

    I hope you and bmaz are writing the book version as well.

    In addition to mobilizing some of John Yoo’s favorite defenses, Passaro asked for the evidence he needed to prove that the government had reverse-engineered SERE techniques and approved them for use on detainees.

    This case is filled with evidence “gold”.

    Thank you. Absolutely great work.

  2. jdmckay0 says:


    I don’t get it though, why would BushCo mobilize to get this guy? He was doing their bidding, right? Or is he just a Martha Stuart example?

    Geez, I’ve been reading this stuff for hours, and you’re cranking it out faster then I can metabolize.

      • Leen says:

        So would making Passaro an example take the heat off so that they could continue with the use of “reverse engineered Sere techniques”?

        • 1boringoldman says:

          I thought of that too for, perhaps, a different reason. Passaro’s crime was in Jun 2002. Yet his target letter didn’t come until Feb 2004 and he was indicted in Jun 2004. Although his notification came before Abu Ghraib was ‘out’ [May 2004], the military was abuzz about it in Jan 2004, and investigating by early Feb 2004. Surely they knew what was coming. So, I thought Passaro’s investigation and indictment might be a “see, we’re on top of this Torture thing” maneuver and “It was a contractor!”

    • manys says:

      I don’t get it though, why would BushCo mobilize to get this guy?

      Slow-rolling the exposure of policy? Gumming it (him) to death?

  3. alabama says:

    This promises to become the history of the Bush administration–stuff for scholars to begin with, and then the stuff of college textbooks, then high school, then…

    • Palli says:

      The first students must be the White House. And we must all work to end the control over textbooks that the ignorant & reactionary Texas School Board continues to have over the corrupt capitalism of the educational publishing business. If not, all the hypocrisy of the America’s dreams will continue and only ivy towers will be libraries for humanism. I want these torture facts discussed at the neighborhood bar, in living rooms during football halftime, from the pulpits and the pundits, city councils and congressional offices…

  4. MadDog says:

    Like many others here, and as EW opened the ball with in her previous post, I’m wondering:

    …Why, I wanted to know, was Passaro tried and convicted but Gul Rahman’s killer has, thus far, avoided any consequences for Rahman’s death…

    Why did the CIA simply not bury Ahmed Wali’s death along with his corpse?

    Why did the Bush/Cheney Administration dig up the death for prosecution in February 2004?

    Like a standout murder mystery, we can’t wait for the next chapter.

    • emptywheel says:

      Well, and that’s where bmaz is going with this. Press reports say that they have not prosecuted Rahman’s death because they don’t have jurisdiction (back to the Yoo Legal Principles thing). They have reviewed that decision at least once since Passaro was indicted, probably two times, plus Durham’s review now.

      But we now know they were, at the same time, arguing that they did have jurisdiction over Wali’s death. Even though Salt Pit was a much more established base than Asadabad (a point Passaro made repeatedly after news of the Salt Pit death came out). ANd, as I’ve said, the Fourth Circuit has now ruled that jurisdiction DOES extend to those shitty bases in Afghanistan.

      I actually think that that may be part of the changed legal posture referred to in the OPR REport (though it preceded the Appeals Court decision by a few weeks). The Fourth Circuit has told both JSOC and CIA that their actions in these places are under the jurisdiction of US law.

      • Jeff Kaye says:

        John Sifton had this to say about the failure to prosecute Rahman’s death:

        Why did the CIA go to such great lengths to protect officers, including those responsible for Rahman’s death?….

        “Z” and “P” are very much beloved in the agency. “Z” was not only cleared in the Gul Rahman death, he was promoted to other positions in the CIA’s Near East and South Asia division and later served the Counterterrorism Center. “P” was promoted to the Iraq Operations Group and later served as CIA station chief in Baghdad and then as a deputy in the Near East and South Asia division—a very high-level post. No surprise the CIA went to bat for its guys.

        Z was the officer responsible for the death, and P his supervisor at the Salt Pit. Z’s name was once available from the Bybee response #2 to OPR, but has since been redacted.

        My take to Mad Dog’s question: you aren’t supposed to be killing people in interrogation. Too many prying eyes possibly watching. If you’re going to kill them, I surmise CIA and/or JSOC feels, then you first disappear them. The bodies are then disposed of where no one will know better. These are the “Caspers” of Barry Eisler’s upcoming novel, Inside Out. But others have written of the disappeared as well. Here’s a list of the missing CIA prisoners compiled by ProPublica. It does not take an amazing leap of the imagination to believe they are dead.

        With Passaro — a contractor, after all — they could make a point, to warn the gung-ho types who was in charge, and no killings on-site.

        This is incredible reporting, Emptywheel (your post, not my comment), really fantastic, and the attempt to pull in the SERE evidence by Passaro’s attorneys is compelling reading. Imagine what we could learn if just one or two of these types were to really start talking.

  5. jdmckay0 says:

    Just wondering about different things on this.

    In any event, (purely anecdotal, but…) came across this DOJ Statement on the matter. Snippet:

    “As President Bush has made clear, the United States will not tolerate criminal acts of brutality and violence against detainees such as those alleged in this indictment,” said Attorney General Ashcroft. “The types of illegal abuse detailed run counter to our values and our policies and are not representative of our men and women in the military and associated personnel serving honorably and admirably for the cause of freedom.”

    “The criminal abuse of persons detained in the global war on terrorism will not be tolerated,” said Assistant Attorney General Wray. “The Department of Justice will move to punish those whose actions violate the rule of law. Such abuse violates the core principles of a free and just society.”

    U.S. Attorney Frank Whitney added, “Once again we see evidence that the USA PATRIOT Act is a valuable tool for law enforcement. Not only is it vital to investigating and prosecuting terrorists, but also it is instrumental in protecting the civil liberties of those on U.S. military installations and diplomatic missions overseas, regardless of their nationality.”

    Do I detect a little politicization in there maybe? I mean, every time I heard some born again, fundamentalist DOJ/Ashcroft BushCo dude extolling the “Patriot Act”, my knees began shaking a bit.

    Anyway, I’m wondering who DOJ’s attorneys on this thing were, … ///???

    in your link under section:
    The Government Tried to Prevent Passaro from Using What He Knew
    … to “government moved“, it says:

    On February 10, 2004, Michael P. Sullivan, an attorney from DOJ Counter Terrorism section, sent Mr. Passaro a target letter stating that the government had formally initiated grand jury proceedings and considered him a “putative defendant” (…)

    I found a -Michael Sullivan- as USA in Mass, but (I think) he’s Michael J (not P). This Mass USA seems to be amongst group of former USA’s who joined Ashcroft’s “law firm”. Hmmmm.

    Also seems to be at least suggestion of crony/political prosecutions on this Sullivan’s part: Mass. state rep Chuck Turner indictment in 7/07, Turner re-elected while under indictment, currently awaiting court’s response to his motion to dismiss.

    Never heard of this one before, but kind’a sort’a smells a bit like Canary/Alabama shenanigans. From Huff Post:

    A federal judge on Thursday ordered prosecutors to produce affidavits explaining why photographs were released and publicity generated following the arrests of two Boston politicians on corruption charges last year.

    The lead prosecutor in the case said he would have to determine whether he could comply.

    Judge Douglas Woodlock told a pretrial hearing audience he wants to evaluate whether prosecutors tried to “gin things up” among the public following the arrests of former Sen. Dianne Wilkerson and Boston City Councilor Chuck Turner.

    Woodlock said he wanted to examine whether disclosures in their complaints _ including widely disseminated photographs of the two Democrats allegedly accepting bribes, Wilkerson’s in her bra _ were more “fulsome” than necessary. He also said he wanted to understand any reasoning behind showing the defendants being led to court, any use of restraints such as shackles and how the defendants represented a risk of flight or a threat to the community to justify any such treatment.

    BushCo DOJ did like to choreograph things. And from same link:

    Woodlock said he wanted affidavits by July 16 from anyone involved in the decision-making process, potentially including former U.S. Attorney Michael Sullivan, a Republican appointee of former President George W. Bush. Assistant U.S. Attorney John McNeil, who is presenting the government’s case, said he would have to determine whether Justice Department rules allow him to comply with the order.

    DOJ “rules” allow him to comply w/order? I didn’t know it worked that way. In interest of understanding Justice, I’d love to see the memorandum of DOJ rules on how/when/why to comply or not to comply with a Judge’s order”.

    The councilor said prosecutions in other states were similarly biased by three unnamed former U.S. attorneys who now work for the Ashcroft Law Firm. Catherine Hanaway from Missouri, and Johnny Sutton and John Ratcliffe from the western and eastern districts in Texas, respectively, joined the firm about the same time as Sullivan.

    Ahhh… a circle of friends!!!

    So anyway, curious to know if this is same Sullivan, or ///???

    There’s whole bunch of DOJ guys named along the way in this one, putting together a little list just for hell of it. Who knows, but I wouldn’t be surprised to find a bunch of commonanlity amongst all the “independent” jurists doing “government’s” bidding in this thing.

  6. Mary says:

    As we’ll see in an upcoming post, the government probably violated rules of discovery to prevent Passaro from making that case

    I’m glad you’re going to highlight that. IMO, the most successful push, from the gitgo, against the DOJ torture regime wasn’t so much poking and prodding on whether or not the torture memos were bad workproducts, but all the other, very clearly definable, violations of law and court rules and ethical standards and congressional duties. Focusing on the quality and cite sourcing of the opinions was never going to be as much of a winner, imo, and was always going to give too narrow a mandate, vs the option of looking into the DOJ and it’s mal and misfeasance regarding candor to tribunals.

    At some point, some judge, somewhere, would say, “enough – some of your butts are going to get in real trouble for this”

    Now, we’ve had so many years of wheel spinning on the quality of the memos themselves that it gets really hard to follow up on the clearly definable actions that should have landed someone in deep trouble, long ago.

  7. librty says:

    The Fourth Circuit has told both JSOC and CIA that their actions in these places are under the jurisdiction of US law

    That the Fourth Circuit found it necessary to assert this, speaks loudly to where this nation is headed

  8. orionATL says:

    the thought that keeps going thru my mind is crossword’s statement that contractors are ex- soldiers (with all their specialized training) who are not under the ucmj.

    thus contractors are not just guys who help uncle sam due to a soldier shortage, as i had thought,

    but soldiers who operate as soldiers outside any rules or standards imposed by our military justice system.

    rumsfeld, et al are slick, lawless sons of bitches.

    jag se lindsey graham would have understood this with ease.)

    by this argument,

    passaro would have been specially selected for his assignment because of his prior training and so that his actions would NOT be c
    restricted by considerations of us military law.


  9. Gitcheegumee says:

    Yesterday, on a previous thread, I inquired if Passaro was working for Blackwater .

    EW kindly informed me that Scahill had stated that there was no evidence that Passaro was in their employ.

    I have not found any info that states otherwise, however, I did find this:

    In March 2002, the then Army secretary, Thomas White, wrote a memo warning thePentagon that there was inadequate control of contractors. In June 2003, Congress’sGeneral Accounting Office released a study that drew on extensive interviews withmilitary personnel, and pointed to the inadequate management and oversight ofcontractors.In response to the revelations about abuses in Abu Ghraib, John Ashcroft announced thatthe Justice Department had jurisdiction to prosecute those civilian contractors whocommitted crimes in Iraq.
    But the pronouncement seemed cosmetic: when asked how theJustice Department would go about investigating crimes in Iraq, Ashcroft said that hewould not send FBI agents to the scene, but would allow the Pentagon to conduct its owninvestigation. Standards of evidence are different in civilian and military courts, however,and it is not certain that Pentagon investigators have the expertise to build a strong casebefore a civilian jury.

    Nevertheless, on June 17 Ashcroft announced that David A. Passaro, an independent contractor working for the CIA, had been indicted by a grand jury for kicking and beatinga detainee to death at a military base in Afghanistan last year. Passaro was prosecutedunder the “Special Maritime and Territorial Jurisdiction” section of the United StatesCriminal Code, which holds that American law applies with respect to a national of theUnited States when that national is on the premises of American diplomatic, consular, ormilitary facilities.

    Excerpt, “Iraq: America’s Private Armies,P.R. Keefe

    NOTE: This was from html,so the spacing is off.

  10. posaune says:

    OT, Marcy know you’re in geometrically proportioned weeds these days, BUT,
    would appreciate your thoughts on the loss of the Polish govt in the Katyn bound plane accident.
    Esp. the loss of the treasury chief.

    Thanks for all you do. You are simply amazing day after day, post after post.

  11. orionATL says:

    gitcheegumee @15

    crossword has mentioned a couple of contractors in his comments previously.

    i tried to find them for you but i don’t search well (only by hand and eye) and there are a ton of comments.

    the one i did find was “triple canopy” – xword @2515 in “they should not have brought…”

    the other firm as i recall started with an “a” and had one of these xeroz, zantac, type of mysterious-sounding names.

    good luck.

    • Gitcheegumee says:


      FWIW, you might want to check out posts #80 and #81 ,downthread at “Meet David Passaro….”.

      It references a number of private contractors, with some additional info that may be of interest,too.

    • crossword says:

      Passaro worked for SOS International, which was a subsidiary of Titan.
      Titan was bought by L-3 a while back; all their ‘gators and linguists work for L-3 now.

      I won’t get started on Blackbird today; they’ve created a revolving door for Air Force paramilitary, Navy and Air Force SERE instructors and combat controllers. Blackbird has rescued or trained in combat medicine over half of the personnel in Afghanistan.

  12. orionATL says:


    i think the fact you uncovered that passaro was an independent contractor is very interesting. no organization – public or private – has any responsibility.

  13. orionATL says:

    crossword @22 24

    thanks for the clarifiction and additional info.

    i’ll be interested in hearing about blackbird.

    wonder if this shadow firms have what is called interlocking directorates(principles serving on each others boards) in our regular corporate world?

  14. Leen says:

    “June 25, 2004: Pursuant to a warrant, US Marshal seizes Passaro’s briefcase, knowing (because of a comment of his) that it included “legal materials”

    If you were going to all this trouble to collect these materials..you sure as hell would copy them numerous times and place them where the Feds would have a hard time finding them.

    What other group of government officials have re written torture laws and International treaties ordered them to be implemented and then covered their own asses so they could not be prosecuted?

    Did these guys learn from the mistakes of Nazi war criminals?

  15. Gitcheegumee says:

    Was it ever established that the SERE torture techniques were actually used on John Walker Lindh,aka American Taliban, in November or December of 2001-either in Aghanistan or on the vessel he was subsequently transferred to?


      • Gitcheegumee says:

        “Both of these defenses, notably, invoked the kind of Get Out of Jail Free Card that John Yoo and David Addington envisioned when they crafted the Bybee Memo in July 2002. Passaro knew how to say that CIA interrogators couldn’t be held responsible for crimes committed during CIA interrogations.”(EW)

        I find this following commentary to be quite provocative, in light of the above statement:

        Jesselyn Radack’s diary :: ::

        “The CIA videotapes documented agency operatives subjecting terrorist suspects to severe interrogation techniques. My e-mails documented my advice against interrogating Lindh without a lawyer, and concluded that the FBI committed an ethics violation when it did so anyway.
        Abu Zubaydah was subjected to waterboarding. John Walker Lindh was stripped, bound, blindfolded and stuffed into a frigid steel shipping container. Both the CIA videotapes and my e-mails were destroyed in part because officials were concerned that they documented controversial interrogation methods.

        On July 12, 2002, the Defense Department was apoplectic that its new policy on the torture of captives in the war on terrorism was going to be exposed. It was a Friday and Lindh’s suppression hearing–which was going to expose who did what to him–was scheduled for Monday. The Defense Department made it clear to the Justice Department that it wanted the suppression hearing blocked. Michael Chertoff, the Assistant Attorney General for the Criminal Division (and now the head of the Department of Homeland Security) who was overseeing all the Justice Department’s terrorism prosecutions, had the prosecution team offer a deal: the serious charges against Lindh would be dropped an he would plead guilty to just two technical charges AND . . .he would have to sign a statement swearing that he had “not been intentionally mistreated” by his captors and waiving any future right to claim mistreatment or torture.The CIA and government withholding from the courts information about torturing terrorism suspects is not new and everyone’s feigned surprise and outrage adds insult to injury.”

        “Deja vu: The Erased CIA Interrogation Tapes and Withholding Torture Evidence from Courts.”
        Jesselyn Radack,12/12/07 Daily Kos

    • qweryous says:

      And crossword @30:

      This article by Jane Mayer has been discussed here on prior occasions.
      Recent posts and comments merit reconsideration.

      Annals of Justice “Lost in the Jihad” subtitle: “Why did the government’s case against John Walker Lindh collapse?” By Jane Mayer. The New Yorker March 10, 2003.
      Note: all emphasis NOT present in the original.

      Excerpt from Lost in the Jihad page 5:

      “”Lindh remained mute as the two American officers, cognizant of his Western appearance and evidently aiming to identify fleeing Al Qaeda members, tried to interrogate him. The videotape captures them saying, “He’s going to fucking sit in prison the rest of his fucking short life. . . . We can only help the guys who want to talk to us”

      Which might be considered to be some to approach the level of an implied threat. Given the circumstances of Lindh at the time the statement was made…

      Excerpt from Lost in the Jihad page 5:

      “One of the oddities of the Lindh case is that interviews he gave to reporters and government interrogators in the first several days after his capture supplied virtually all of the incriminating evidence against him. Lindh evidently didn’t comprehend the legal peril he was in—or, if he did, he felt coerced into talking. CNN was the first television news organization to interview him; the full transcript of that interview was obtained by Lindh’s lawyers.”

      Several questions arise here:
      Did Lindh distinguish between reporters and others interrogating him?
      Why might he not “comprehend the legal peril he was in” i.e. was his physical or mental condition interfering with this comprehension?
      Why might Lindh have felt coerced in his situation at that time?

      Excerpt from Lost in the Jihad page 6:

      “An American Special Forces officer at the hospital later described Lindh, who was lying on the floor to recover from his wounds, as “delirious.” Another American officer jokingly offered to shoot Lindh on the spot. But Pelton told them not to kill Lindh “yet.” He wanted to interview him first.”

      Lindh was “delerious”- implies something about his condition at that time.
      The offer to shoot Lindh- just kidding? -coupled with delerium…
      The ‘Instruction’ by Pelton ( the reporter) not to kill him ‘yet’… might Lindh have thought that Pelton was giving instructions to the other interrogators, and once again what might be considered by some to be an implied threat- this time from Pelton -if the Mayer account is accurate.

      Excerpt from Lost in the Jihad page 6:

      “Pelton approached Lindh, who asked him, “Who are you?”

      “CNN,” Pelton answered.

      “Look, you don’t have my permission to film me,” Lindh replied.

      “O.K.,” said Pelton, still filming. “Well, that’s not our concern right now. Our concern is, uh, your welfare.”

      “All right,” Lindh said. “If you’re concerned about my welfare, don’t film me.””

      Lindh then asks Pelton who he is, and requests that he not be filmed. Pelton does not comply with that request.
      Pelton informs Lindh: “Well that’s not our concern right now. Our concern right now is, uh, your welfare.”
      Might Lindh have thought that Pelton was working with the other interrogators because of this statement?
      Once again Lindh requests filming stop and Pelton continues with the filming and questions.

      Excerpt from Lost in the Jihad page 6:

      After some discussion, the doctors decided to inject Lindh with a sedative painkiller. Pelton told Lindh that it was “happy juice.” His questions grew more pointed. “Were you with the Taliban the whole time, or were you doing something else?” he asked.

      While under sedation, Lindh told Pelton that he was with Al Ansar. Pelton asked if that was the same as the 055 brigade, an Al Qaeda guerrilla force.

      “I’m not familiar with that,” Lindh said.

      “That’s the term,” Pelton said. “How did you get to Afghanistan?” he asked, adding that “some friends of mine fought in Chechnya.” This comment, implying camaraderie, inspired Lindh to ask Pelton if he was a Muslim. “Unfortunately, I’m not,” he said. “But I respect the cause and I respect the call.”

      By the time Pelton left, he had a tape of Lindh saying that his “heart became attached” to the Taliban, and that “the goal of every Muslim” was to be a “shahid,” or martyr.

      Pelton is apparently offering Lindh an explanation or description of the medication administered.
      After it was administered the questioning by Pelton continued.
      Not to criticize competent questions asked by a reporter, but might Lindh have thought Pelton was not a reporter given the apparent knowledge Pelton had?
      Was Pelton actually a reporter at this time?

      Excerpt from Lost in the Jihad Page 6:

      “In Afghanistan, Lindh asked for counsel almost immediately. According to recently declassified government documents, a Navy medic who was present when Lindh arrived at the hospital on December 1st sent a cable to the United States saying that Lindh had asked, “When will I be able to speak to a lawyer?”

      Navy medic– see previous posts and comments
      Navy medic “sent a cable to the United States saying that Lindh had asked ”
      When will I be able to speak to a lawyer?””- see ““High Side” cables and FOIA Responses

      • qweryous says:

        To Clarify @38:

        1. The first excerpt from page 5:

        “”Lindh remained mute as the two American officers, cognizant of his Western appearance and evidently aiming to identify fleeing Al Qaeda members, tried to interrogate him. The videotape captures them saying, “He’s going to fucking sit in prison the rest of his fucking short life. . . . We can only help the guys who want to talk to us””

        Those American officers were :
        Excerpt from Lost in the Jihad by Jane Mayer page 5:

        “…Northern Alliance guards herded Lindh’s unit into the basement of the fortress, then rolled a grenade down an airshaft. The next morning, Taliban soldiers were marched out and interrogated in the fort’s courtyard by Dostum’s men and two Americans—Johnny Micheal Spann and a second C.I.A. officer, Dave Tyson.

        Videotape shot that day, November 25th, shows Lindh on his knees, with matted hair covering his face and his arms bound behind his back. He is kicked in the head by Dostum’s troops as the two Americans move among them.”

        “I didn’t know who the American guys were,” Lindh told Fechheimer, the private investigator. Neither Spann nor Tyson identified himself, and Lindh thought they were mercenaries working with Dostum. Spann wore bluejeans and a black sweatshirt. Tyson wore a shalwar kameez. Both carried Russian-made automatic rifles.”

        2.Johnny Michael Spann was killed by prisoners.

        Excerpt from Lost in the Jihad page 5:

        “Soon afterward, in a spontaneous uprising, several hundred Taliban prisoners overpowered Dostum’s guards and killed Spann.”

        3.The reporter for CNN was Robert Pelton.

        Excerpt from Lost in the Jihad page 5;

        “Robert Pelton, a freelance contributor to CNN, is the author of a book entitled “The World’s Most Dangerous Places.” Pelton was staying at General Dostum’s home—an unorthodox arrangement—and was told by Dostum about the existence of the “American Taliban.”

        • Gitcheegumee says:

          Seems we were posting the Dostum connection at the same time. *G*

          Many thanks,once again.

      • Gitcheegumee says:

        MANY thanks for this excerpt. Although I am familiar with Mayer’s exceptional work, I have never seen this particular piece.

        For additional consideration,thefollowing links provide much background on the circumstances and conditions just prior to Lindh’s apprehension,and the role of the infamous Dostum in the scenario.

        US torture of John Walker Lindh exposed Jun 25, 2002 … Defense attorneys for John Walker Lindh filed documents describing how, after barely surviving atrocities that claimed the lives of hundreds …
        http://www.wsws.org/articles/2002/jun2002/lind-j25.shtml – Cached – Similar

        Michael Teitelman: Obama, Torture and John Walker LindhMay 22, 2009 … Obama, Torture and John Walker Lindh. By MICHAEL TEITELMAN. On March 15, the Justice Department made an announcement that was barely …
        http://www.counterpunch.org/teitelman05222009.html – Cached – Similar

  16. aardvark says:

    Folks, the connection between SERE and water-boarding has been out there in the public domain for some time. Check-out G.I. Jane, 1997; the water-boarding was explicit and identified as an interrogation technique.

  17. orionATL says:

    gitcheegumee @31

    that was very informative.

    i don’t know how you keep coming up with these interesting finds. you must have friends at the top
    of the google corp.

  18. crossword says:

    Spann was the original “take a guy with military training and make him a paramilitary in the employ of CIA so they can do things in the dark of night the military won’t do”.

    Spann was a Marine.

  19. orionATL says:

    qweryous, gotcheegumee, crossword

    so much interesting information.

    interedting part because it contradicts my recollections of what i saw and heard on teevee years ago about walker and about spann.

    i wonder if there is a reason the prisoners went after spann, or whether he was just the closest to the mob.

    small-town southern christian? i have no trouble at all relating to spann’s background.

    but i do have trouble relating to why he would be inteterested in cia plain- clothes – adrenaline lust, perhaps.

  20. alinaustex says:

    It seems I recall Spann’s father questioning what and why his son was at at the prison-with so little support. I also recall Spann’s father calling out Rumsfeld for the Irak prevarications. It seems there are many current seving members and their families that are and have questioned the bushcheney gwot strategerry . Reading Johnny Spann’s wiki you linked to -its clear that retired Captain Spann -and then active duty CIA Spann was a patriot -and possibly badly misused by gwb 43. I have never served -but have great respect for the likes of Spann who have put themeselves in harm way for these United States . I am also aware -with friends and family in the USMC -how really much the Corp at its core values opposes torture and related war crimes. I often wonder about how much pushback there was and is to the torture and other atrocities by the rank and file Service members -that is not reported .( I also very much wish that Col Wilkerson had gone public about the innocent detainees-and all the rest – while he still served and then resigned .)
    I for one simply believe we often do a disservice to our Military / CIA rank and file by assuming all of them supported and participated in the war crimes of bushcheney 43-and what appears the ongoing cover up by TeamObama – of the same atrocities . re Camp No and the apparent homicides that took place there.

    • crossword says:

      The Marines look down on the torture mongers. Especially the Marc Thiessen’s of the world.

  21. orionATL says:

    alinaustex @46



    my views exactly.

    this is american military thought at its wisest.

    i’m confident kulak and hoar are not the only military leaders who think this way.

    but then there always are the careerists: they’re the ones who usually end up in charge.

    the military is top down. a good system for fighting wars. but a system that requires wise, well-educated (in warfare) leaders.

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