Who Is Lying? The Torturers? Or John Yoo?

One of the potential bombshells in last week’s FOIA dump appears in a CIA discussion about a potential statement in response to NYT’s breaking of the torture tape story (PDF 86). The document notes that the videotapes would have shown the sheer number of times the torturers waterboarded Abu Zubaydah, and suggests that that may have presented legal problems. The document continues that someone (it appears to be the torturers) informed DOJ of the real number of times they waterboarded AZ, but CIA had no proof.

Jay Bybee’s 1 Aug 2002 memo to John Rizzo stated, in part, “Moreover, you have also informed us that although some of these techniques may be used with more than once, that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions.” (p. 2) and again, “You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition.” (p.11). The OIG review determined that Abu Zubaydah was subjected to [redaction] waterboard sessions, consisting of at least 83 separate exposures [half line redacted] assured us that he gave regular updates to DoJ (i.e., John Yoo [few words redacted] at OLC) during this time frame, and DoJ was aware of the real numbers, but we were never able to verify this with DoJ, as INV management at the time elected not to interview witnesses outside the building. In addition to the disparity in numbers, the method of water application as recorded in the tapes was at odds with the Bybee opinion. [my emphasis]

That is, one problem with the videotapes is that, unless the torturers really did inform Yoo (and, I’m guessing, Jennifer Koester) about how and how many times they really used waterboarding then they would have been in violation of guidelines from DOJ.

The statement, by itself, is inflammatory enough. But particularly in light of what Yoo said to OPR in interviews conducted during the summer of 2005.

He told us during his interview: “I had actually thought that we prohibited waterboarding. I didn’t recollect that we had actually said that you could do it.” He added:

[T]he waterboarding as it’s described in that memo, is very different than the waterboarding that was described in the press. And when I read the description in the press of what waterboarding is, I was like, oh, well, obviously that would be prohibited by the statute.

Now, granted, Yoo is not addressing the number of repetitions of waterboardings. And he points to the depiction of waterboarding in the press, not the depictions of waterboarding that appeared in the CIA IG Report (which, as it happens, matches the descriptions in the press with regards to volume of water and forced ingestion of it). So Yoo, as is his wont, has left some wiggle room here.

But he seems to suggest surprise that he had actually authorized the use of waterboarding.

As implausible as that is, assuming he simply forgot the phone call he made to John Rizzo on July 26, 2002 personally authorizing waterboarding and then forgot reviewing the extensive descriptions Koester wrote into the Bybee Two memo, it strains credulity if Yoo was actually receiving updates from Thailand. Imagine how such an exchange might play out:

“Oh, by the way, John. We set a new record for ‘pours’ during one waterboard session! We drowned that motherfucker 27 times in today’s session!”

“Wha–What? I thought we told you not to use that medieval torture technique!”

John Yoo was playing (or actually was) dumb about the use of waterboarding in the months before CIA destroyed the torture tapes. Yet someone–perhaps Bruce Jessen or James Mitchell–claim they kept DOJ generally and Yoo specifically in the loop of what they were doing.

Someone is not telling the truth. Who is it?

40 replies
  1. bobschacht says:

    Yoo is saying that he is shocked, shocked, that AZ was waterboarded?
    and that his green light was interpreted, umm, as a green light? Shocking! What will they think of next???

    Bob in AZ

  2. earlofhuntingdon says:

    Waterboarding became the signature torture of the Cheney years. Exceptional lengths were gone to in order to sanitize and approve it and to record its use and effectiveness. It seems unlikely that Addington and his alter ego at the OLC, Mr. Yoo, were unaware of its essential aspects as practiced by their administration.

    Mr. Yoo, summa from Harvard with a Yale law degree, was employed as the government lawyer with the most need to make himself aware of past prosecutions for waterboarding. Having been a law clerk to the ultra conservative Silberman on the DC Circuit and Clarence Thomas on the Supremes, holding a tenured faculty position at Berkeley Law, and being the recipient of the Federalist Society’s Paul M. Bator award for “excellence in legal scholarship and teaching”, his ability to do legal research (as opposed to his political views or specific examples of his research) is exemplary.

    Mr. Yoo may have exempted him from inquiring into waterboarding as practiced during the Spanish Inquisition. He was not exempt from becoming intimately familiar with cases during the US Army’s “pacification” of the Philippines under Teddy Roosevelt, from the Second World War, and from Vietnam.

    Mr. Yoo has always been assiduous in doing his homework. He was also a past legal counsel to the Senate Judiciary Committee, which means he long ago learned the difference between what the Japanese call honne and tatemae, the real and the facade as employed by governments and businesses. His claims not to have known about “real” waterboarding until he read about it in the newspaper are derisive.

  3. Jeff Kaye says:

    Push all my chips onto the square that says Yoo was lying and DoJ covering up. They certainly knew what was going on in Thailand. They had a very specific agenda. Mitchell and Jessen and whomever may have let things get out of hand in a particular session (Jessen, I’m told, was once reprimanded for letting things get too physical in SERE training, but this was back in the 1990s), but there’s no way Yoo forgot he authorized waterboarding, or didn’t get briefed continually.

    …but we were never able to verify this with DoJ…

    Oh come on! So they gave up? I think some mutual CYA going on here. Still, the fact DoJ clammed up is significant.

    • sivil says:

      Jason Leopold recently reported that Zubaydah was a human “guinea pig” for apx two dozen techqs, not just the 10 cleared in 8/1/02 OLC memo.

      ABC News / Ross reported 11/05 on EITs that CIA pgm used, including waterSUFFOCATION — in which cellophane was placed over vic’s face.

      Fmr CIA agent John Kiriakou said in press interview that training on the water technique involved use of barrier / cellophane and that water did NOT go into nose / mouth.

      John Yoo’s claim in OPR Rpt that “we” (who is “we”?) PROHIBITED waterBOARDING may be accurate.

      The Yoo-drafted but Bybee-signed OLC 8/1/02 memo said it memorialized two prior oral clearances given to CIA days earlier. First one (by A/G reportedly) approved techqs but NOT waterBOARDING. Second one, days later, did approve waterBOARDING, allegedly (or was it waterSUFFOCATION).

      In waterBOARDING — vic can’t breathe / senses imminent death, due to water being poured into nose / mouth.

      In waterSUFFOCATION — cellophane over face prevents water from entering nose / mouth, but vic can’t breathe due to the barrier.

      Did Yoo approve waterSUFFOCATION (cellophane technique)?
      And then somebody else go to waterBOARDING?

  4. WilliamOckham says:

    My bet is on the following:

    Whoever was giving regular updates to the DoJ can’t prove it (otherwise INV wouldn’t have needed to go to DoJ to verify it). Which means the updates were given orally and we’ll never know who was lying. Of course, if it’s anything like any other organization whoever was keeping DoJ informed assumed that they understood what he was saying while Yoo, et. al., had every incentive to ask no questions about what was going on.

    • emptywheel says:

      Btw, have you looked at least week’s document dump at all? Most of the routing information is thoroughly redacted, but particularly in the case of documents where we have 2 or 3 copies of the same email, though presumably sent to different people, I was wondering what you might make of it. Also, it seems like we might be able to make some guesses as to which were OIG documents, which OGC, which CTC, and which DDO documents based on typeface.

      • WilliamOckham says:

        I have skimmed through it, mostly for content. I have started to look at the other stuff, but barely. I should have some time this afternoon or this evening. Any pages in particular that you are interested in?

        • emptywheel says:

          Yeah, I’m interested in what you see in the multiple vesions of the October 25, 2002 and the November 8-9 documents you see. And I’m wondering if you think the September 25 and October 5, 2007 emails suggest they were having trouble finding the Rodriguez destruction approval email.

        • Mary says:

          BTW – doesn’t the “To” reference in some of those cable strike you as kind of odd? “Immediate [redacted] Info [redacted] Director”

        • WilliamOckham says:

          Still looking at this. Perhaps will have conclusion later this evening. Will post on this thread.

        • emptywheel says:

          And actually, one question that came up on an earlier thread you may be able to offer insight into is how the cables are integrated into emails. We had some discussion earlier about cut and paste. I’m particularly interested in whether you can make sense of PDF 9, which is supposed to be two cables excerpted in an email. One of them is totally redacted. But I’m curious if you can make sense of what was going on with that one.

        • WilliamOckham says:

          Take a look at Doc 17 (the “Sir, FYI” email. See the “Edit Cable”, “Reply To Cable”, etc.? Those are actually the buttons of the User Interface of the application the CIA uses for their “cables”. It probably runs on some IBM mainframe (or possibly a DEC mini) and everybody uses a terminal app on their PC to interact with it. Whoever sent that email wasn’t used to interacting with the system because there is obviously some way to snag those cables and embed them directly in your email.

          Obviously, there must be a pretty good security system (which suggests the IBM mainframe). That’s why they had trouble bringing up certain cables after the fact. More later…

  5. earlofhuntingdon says:

    I also agree with BillE that both are probably lying, for the simple reason that not doing so would be tantamount to admitting to war crimes.

  6. Mary says:

    There is a lot in this doc dump, but this one of the things that really caught my eye.

    I really think someone needs to ante up with why the name other than Yoo’s is redacted – I think it is Koester too (ok, it could be something other than another name after Yoo’s, but not likely) We are now talking about someone who would be a witness and who is at DOJ, not some classified field operative.

    I don’t know what “INV management” is – you’ve probably gone over it before, but I’m not certain how “INV management” does or doesn’t tie to the OIG investigatory function or if it is somehow separate. This, yet again, showstagoya why none of these investigations work – with everyone having such limited mandates. Still, the “let’s not talk to anyone not in the builidng” is a nice way to truss things, even for avoidance pros.

    Is there anything to indicate that Durham made this info available to OPR? He’s inhouse DOJ, he knows OPR is investigating Yoo with respect tot he torture memos, and he comes across evidence of information that Yoo might have had and knowingly refused to address in the memos (something even Yoo’s crew says would change their defense of him) – so, did he turn it over to OPR?

    It would be “worrying” tothink that DOJ was sitting on his in-house handling of the CIA matter, knowing it had evidence relevant to the OPR investigation, but let the OPR investigation be “finalized” with a clean bill, all without ever making Durham’s evidence available to OPR

    • emptywheel says:

      I mentioned this bit to some folks when I was at DOJ the other day. They seemed to be thus far unaware of it. Granted they are neither prosecutors nor at OPR, but still.

      • Mary says:

        It’s great that you mentioned it, though.

        DOJ seems to so often forget things like duties regarding professional misconduct.

  7. Mary says:

    BTW – if we are taking bets, my bet would be that YooCo did get told about things that were not in the memo, but he made sure to base his opinion only on written info provided.

    I know I know, the CIA lies as their profession, but the last few years have shown that DOJ lies for the sheer love of the lies.

  8. lysias says:

    I learn from James Douglass’s JFK and the Unspeakable that, at least in the 1950’s and 1960’s, CIA people were scattered in cover jobs throughout the government.

    I wonder if any people at OLC have really been CIA. And I wonder if that could be a reason to redact their names.

  9. qweryous says:

    Mary @ 9:

    I don’t know what “INV management” is – you’ve probably gone over it before, but I’m not certain how “INV management” does or doesn’t tie to the OIG investigatory function or if it is somehow separate.

    I have been wondering the same for a few days now, and should have asked when I first had the question.

    So I second the request for some info on this ‘INV management’.

    EDIT: ADD: I forgot to comment on the title of the post: “Who Is Lying..”
    umm.. heh..

    • Cujo359 says:

      The only relevant possibility that Acronym Finder came up with is “investigator”. The phrase “investigator management” strikes me as awkward, though.

      UPDATE: Actually, on second reading, it sort of makes sense. The investigators’ managers decided not to interview witnesses who were outside the building.

      • WilliamOckham says:

        The CIA’s Office of the Inspector General (OIG) is divided into three main parts: Audit staff, Investigation staff, and Inspection staff. Here’s how the IG’s semi-annual report describes the Investigation Staff:

        The Investigations (INV) Staff investigates possible violations of statutes, regulations, policies, and procedures,as well as allegations of waste, fraud, mismanagement, abuse of authority, and substantial dangers to public health and safety related to Agency programs and operations. The INV Staff also oversees the Agency’s grievance system and conducts proactive initiatives aimed at detecting and preventing fraud, waste, and abuse.

        • qweryous says:

          And to Cujo359

          That was what I had in mind, but was not sure if I’d missed other info on what it meant.

        • Mary says:

          Thank you – so that would be OIG investigation staff management – so even though they were supposed to be doing the kind of investigation that would be needed to determine whether or not there should be criminal referrals for torture and torture killings and kidnaps of innocent people and missing children etc. – they artificially limited themselves to not interviewing witnesses “outside the building?” It sure would be nice to get a bit more info on just what that little phrase meant, i.e. “INV management at the time elected not to interview witnesses outside the building”

          IOW, were FBI agents on site when some of this was going on interviewed? Were translators? Contractors? CIA officers who were field and not DC based? OVP? DoD? National Security Council? Guys who had retired or switched departments? Obviously not DoJ, but just what is the scope of the refernce to OIG’s Investigation management “at the time” deciding not to interview “witnesses outside the building.”

          It seems a very arbitrary self-limiter on the investigation and you have to wonder if it was spelled out to EDVA that was reviewing the findings that there were a lot of witnesses or potential witnesses that OIG had just “elected” not to question?

  10. beth meacham says:

    While waterboarding is a horrifying torture method, it doesn’t hold a candle to the “sleep deprivation” and “forced standing” techniques used by the torture regime.

    • tjbs says:

      You can die from forced standing aka crucifixion.

      This whole operation was a den of death there are after all 28 confirmed homicides, over 108 total dead from not coming up with the right answers as if there really was any answer that would halt the torture.

        • tjbs says:

          you’re strung up arms above your head for hours which can lead to heart failure.

          There’s no break time or time for a smoke once an hour.

          This is the exact reason to destroy the evidence cause it was for shits and giggles not ticking bomb info.

  11. EternalVigilance says:

    Can anyone give me an example of when administration “investigations” did anything other than provide defense for the actions of the government?

    I’ll accept there are probably some limited hangout cases, and maybe some where the squabble is between two territorial silverbacks and one of them loses.

    But the ongoing expectation that these “investigations” of would ever be anything other than cover seems naive.

    When they’re done with this one, perhaps the OIG/OLC can “investigate” where the pony is.

  12. 1boringoldman says:

    Who isn’t [lying]? Everybody seems to be spinning the story to their own advantage. While that’s a human thing, these people are way, way too human. The lie I want exposed is the one in Yoo’s Memo about how these techniques will not “disrupt profoundly the senses or the personality” – that they will not cause “severe mental pain and suffering.” My reading of the techniques is that they were specifically designed to “disrupt profoundly the senses or the personality” and that they were guaranteed to cause enduring “severe mental pain and suffering.”

    When I read in Jason’s piece:

    The panel will scrutinize thousands of pages of highly classified documents related to Zubaydah’s detention and torture to determine, among other things, whether the “enhanced interrogation techniques” he was subjected to was accurately reflected in CIA cable traffic sent back to Langley, whether he ever provided actionable intelligence to his torturers, and how the CIA and other government agencies came to rely on flawed intelligence that led the Bush administration to classify him as the No. 3 person in al-Qaeda and its first high-value detainee, Hill sources said.

    I was disappointed that it didn’t include their talking to Zubaydah, having him evaluated by outside experts. The whole point is to disprove once and for all that you can torture people without giving them PTSD that lasts and lasts. John Yoo, James Mitchell, Bruce Jessen and a host of others set up an experiment reassuring us all along the way that it was a benign thing to do. I think the most important thing that the SSCI can do for posterity is call the question and actually talk to the person. It’s hard to imagine that he won’t show any number of manifestations of psychological trauma.

    • bmaz says:

      That strikes as very useful. If the conclusion of the independent experts is that Zubaydah is significantly affected/disturbed, then there are only two real choices 1) he was to start with and they falsified his status; or 2) He gained that status as a result of their treatment.

      • 1boringoldman says:

        there are only two real choices 1) he was to start with and they falsified his status; or 2) He gained that status as a result of their treatment.

        Or, more likely both. One ought to be able to parse that out clinically…

  13. JohnLopresti says:


    ingestion of it

    Add to **ingestion**, aspiration (**H2O** goes into lungs; drowns). Ingestion into stomach in large volumes induces, among other effects, a sort of dementia.

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