The Abu Zubaydah Standard in Obama’s Miranda Memo

Here are the claims the Bybee Two memo premised its authorization to torture Abu Zubaydah on:

As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization,


Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas.

Compare that with the description of an “operational terrorist” whose Miranda rights may be delayed under a memo issued by DOJ last October.

For these purposes, an operational terrorist is an arrestee who is reasonably believed to be either a high-level member of an international terrorist group; or an operative who has personally conducted or attempted to conduct a terrorist operation that involved risk to life; or an individual knowledgeable about operational details of a pending terrorist operation.

The two claimed preconditions for torturing AZ–that he was a high ranking member of an international terrorist group and knowledgeable about operational details of pending terrorist operations–are exactly the same as two possible premises (of three) for delaying an American detainee’s Miranda warning.

Only, with AZ, the CIA had to send John Yoo a bunch of information purportedly proving their claims before they got to torture AZ.

Here’s how such claims will be checked under the Miranda exception.

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval.


As noted above, if there is time to consult with FBI-HQ (including OGC) and Department of Justice attorneys regarding the interrogation strategy to be followed prior to reading the defendant his Miranda rights, the field office should endeavor to do so. Nevertheless, the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public, and how long the post-arrest interview can practically be delayed while interrogation strategy is being discussed. [my emphasis]

In other words, while FBI says it’d be nice if the folks holding the detainee consult with the lawyers in DC before delaying a suspect’s Miranda warning, they provide a great big invitation–“the agents on the scene who are interacting with the arrestee are in the best position to assess what questions are necessary to secure their safety and the safety of the public”–for them not to do so. And far be it for FBI Agents to refuse such a kind invitation!

So an FBI Agent in the field can decide on his own (for reasons of urgency, you understand) not to Mirandize a guy that he has decided, with no review, is a top ranking terrorist or knows about an upcoming terrorist attack. And a plain reading of the text doesn’t even require that the terrorist attack be related to international terrorism; it could be an environmental attack, for example. If an FBI Agent believes some vegan wants to free a bunch of pigs used in experimentation, he can declare it a planned terrorist attack and hold the vegan without Miranda warning. Since Main DOJ does not require that it oversee this process, it will be able to claim it has no responsibility for any abuses that result.

It will look like this in the eventual DOJ IG Report: “No one could have predicted that FBI Agents would abuse a policy written so broadly.”

Now, as it happens, when the government started making claims in court about AZ, in a venue in which both an independent judge and AZ’s lawyer could challenge what evidence the government actually turned over, the government chose not to claim that he was either a top-ranking al Qaeda member or aware of upcoming terrorist plots.

There’s good reason they didn’t make such claims. That’s because he wasn’t. As the government eventually admitted to AZ, after they waterboarded him 83 times. And after spending the better part of a summer chasing down the terrorist plots he invented to try to get the torture to stop.

The CIA IG Report explained how it was that the government came to have such a mistaken understanding of AZ and others.

The Agency lacked adequate knowledge of what particular Al-Qa’ida leaders–who later became detainees–knew. This lack of knowledge led analysts to speculate about what a detainee “should know,” vice information the analyst could objectively demonstrate the detainee did know.

But don’t worry–I’m sure a couple of FBI Agents from, say, Iowa, working alone their first terrorism case with no required review from Main DOJ won’t make the same kind of assumptions about what a detainee should know. Really.

Now, don’t get me wrong. I’m not saying FBI Agents would use a Miranda delay to waterboard a detainee (waterboarding is CIA turf, after all). The CIA system clearly provided the opportunity for much more abuse.

But consider the one detainee known to be treated in such a fashion: Faisal Shahzad. The government claimed a central reason why they had to hold him without charge is that they needed unfettered access to him, 24/7, so they could immediately verify any new intelligence they picked up. Call me crazy, but interrupting a detainee repeatedly, 24/7, to ask a question sounds like a great way–even better than the Frequent Flier program used at Gitmo–to sleep deprive someone under the guise of doing something else. Since Shahzad eventually plead guilty (remember that Pakistan basically detained his family members, perhaps including his wife and kids, while he was being questioned), the judge never really challenged whether his confession was coerced.

So we only have to look at the one prior case where such a delay was used to understand what kind of abuse can be done during the time before a detainee gets a lawyer.

So perhaps I am justified to be horrified by the parallel structure used in this memo and that used in John Yoo’s notoriously problematic Bybee Memo.

  1. Gitcheegumee says:

    “We are fast approaching the stage of ultimate inversion: the stage where government is free to do as it pleases, while the citizens may act only by permission.” – Ayn Rand

  2. earlofhuntingdon says:

    “Horrified” would be correct. This is an initial public admission that the GWOT standards, its sources and methods, are coming to US domestic policing, albeit supposedly applied only to “terrorism” cases. As with rats, when you hear one, there are a hundred; when you see one, there are a thousand.

    One man’s terrorist is another’s hero, First Amendment advocate, junky, whistleblower, political opponent or irritating neighbor. I’m sure Julian Assange would be classified as a “terrorist” and persons knowledgeable about upcoming leaks would be operational.

    The guys who learned their tradecraft in Latin America and the Middle East are now setting policy for domestic law enforcement. Great.

  3. JTMinIA says:

    “But don’t worry–I’m sure a couple of FBI Agents from, say, Iowa, working alone their first terrorism case with no required review from Main DOJ won’t make the same kind of assumptions about what a detainee should know. Really.”

    I assume you used Iowa because it’s about half-way between Idaho and Florida, where Jessen and Mitchell are from, and not because of anything my neighbors have done.

    To paraphrase my hero: we grow good people in Iowa; not the kind that torture or participate on kill-squads.

    • emptywheel says:

      Sorry. Was looking for a state where it was possible to find a terrorist suspect but unlikely to have any experience.

      Frankly, you don’t even have to assume malice on the part of FBIers using this authority. If they stumbled on someone they thought was a terrorist, particularly if they didn’t have cultural knowledge or real world experience in it, they might well err on the side of less rights. One would hope they’d find time to call Main DOJ, but panicked people do weird things.

      • earlofhuntingdon says:

        You could have picked Cleveland, the city where FBI careers are either born or go to die. Same diff.

      • jdmckay0 says:

        hope they’d find time to call Main DOJ

        Seems to me, if I was a Muslim hating true patriot that kind’a “flexibility” just might make one feel at home in that particular field of work.

    • earlofhuntingdon says:

      Hawk-eyed Iowans, the kind who can stand touching noses all day and never see eye to eye, but who will give you the shirt off their backs? Those Iowans?

    • earlofhuntingdon says:

      Rumor has it the Feebs think there are still a lot of DFH’s in sunny Portland, unlike its rainier neighbors to the North.

      • Teddy Partridge says:

        Our Mayor, Sam Adams, continues to “dither” about re-joining the JTTF, as the local conservative rag puts it. I think there is tremendous community pressure to keep away, especially after the FBI grooming of the “Xmas Tree Not-a-Bomber” which startled and betrayed the Muslim community here.

        • earlofhuntingdon says:

          I hope he keeps dithering and also let’s those federal “fusion” dollars land somewhere else. The federalization of local law enforcement, combined with the national surveillance state, is not likely to enhance the freedoms for which we are supposedly hated. It’s more likely to make us envious of others’ freedoms.

        • earlofhuntingdon says:

          BTW, I think Sam Adams makes a great beer, a lot cheaper than those microbreweries named after little creeks and rivers.

  4. Jason Leopold says:

    You know Ali Soufan, for all the great things that have been said about him, did tell al-Qahtani that his torture would stop if he gave him, Soufan, and the other interrogators what they wanted and he recommended isolation and segregation for Qahtani.

    In late July, as Mitchell’s crew was gearing up for its month-long, White-House orchestrated torture of Abu Zubaydah in Thailand , Ali Soufan interviewed Mohammed al Qahtani in Guantánamo. After that session, Soufan recommended that Qahtani “should go into some sort of isolation or segregation if the Federal Bureau of Investigation was going to have some shot of making progress with this guy,” and came up with the idea of putting him in a “non-standard arrangement in the Navy Brig.” 36 The recommendation raised concerns; as the Inspector General noted in a footnote to his 2008 report, “severe isolation of the type used on al Qahtani for interrogation purposes rather than as a disciplinary or security measure would like be considered to be coercive and contrary to FBI interviews in the United States.” Nevertheless, Soufan’s request was approved up the FBI chain of command, and on August 8, 2002, Qahtani was forcibly removed from his cell and delivered by military ambulance to a specially prepared wing of the Guantánamo naval brig evidently modeled on the environment in which Jose Padilla was then being held at the naval brig in South Carolina . “There was a concerted effort to try to isolate him from any human contact with the guards,” Soufan told the Inspector General. “A protocol was designed so that [Qahtani] would not be able to see the guards’ faces”; “some guards covered their faces in some fashion and other times [he] was supposed to turn away so as not to look at the guards.”

    Don’t think it’s far fetched for the FBI to go that route today with these changes.

    • emptywheel says:

      Not sure if you saw my twitter discussion w/Adam Serwer this PM, but I pointed to precisely that passage.

      And again, the folks who will be implementing this memo, because it applies to all FBI Agents, are almost by definition not going to be as experienced and/or knowledgeable as Soufan.

      • Jason Leopold says:

        Oh sorry about that. I didn’t see that earlier. Will go check out the convo. Yes, exactly. That’s the whole thing that’s troublesome. These folks WON”T be as experienced as Soufan and as such it will likely lead to abuses due to the inexperience just as it did/does with other national security programs we’ve already heard about.

  5. Jason Leopold says:

    I would also like to add:

    Immediately after the move, Soufan sat with Qahtani and told him “this is your place until you change your story.” Qahtani told the Inspector General that Soufan had “some sense of humanity” and that he “did not use aggression or physical violence.” He did, however, make “actual or implied threats” that the IG found troublesome:

    According to Al-Qahtani, [Soufan] said things such as “you will find yourself in a difficult situation if you don’t talk to me” and “if you’re not going to talk now, you will talk in the future.” When asked if he took this as a “warning or a threat,” Al-Qahtani replied that it was “a little bit of both.”

    Soufan and other FBI agents questioned Qahtani for a month in the naval brig. They offered to return him to Camp Delta if he would just give them “a small piece of information”; he countered that if they moved him, he would talk. They left him alone in his cell for long periods without interrogating him.

    • Jeff Kaye says:

      I’d add that Michael Gelles of NCIS, who then was working with CITF at Gitmo, had proposed, as an alternate to the SERE-based harsh torture that would be used on al-Qahtani after his initial isolation didn’t produce “results”, a return to the kind of isolation that FBI had already put him in before, adding that another year or so of that should do the trick.

      In order to exploit this hunger for human contact, the CITF/FBI plan recommended that he be kept in continued isolation for up to an additional year…

      This was after the initial FBI treatment of al Qahtani. Yeah… use of dogs a no-no, but holding someone in strict solitary confinement to break them is A-OK with the FBI and NCIS.

      Sorry for hijacking this thread, EW, but it does seem germane, and these issues, as you know, make my blood boil.

          • harpie says:

            Jason, thanks. He’s already left a note on Glenn’s thread, as well as one on his current thread here…promises more, soon. It IS mind-blowing…even for me, the cynical.

            • Jason Leopold says:

              just read your comment “drop jawed.” Could not have said it better! I understand this isn’t a big panel or anything but why would Obama make such a move? I actually do not understand it, particularly because of the scrutiny it will receive. Perhaps he just doesn’t care about the criticism.

              This underscores Mary’s point: “We’re at a really major league sad juncture when the party of opposition comes into power and all they can come up with for FBI leadership is a lot of the same guys and gals who ran the country into the ground under the prior party.”

              • harpie says:

                Jason, I wanted to let you know that Glenn left a comment.

                Yes. I was contacted by Harvard Law School’s Human Rights program yesterday. They’ve been working on Dr. James and the other psychologists for several years. They received the email he circulated from several people. They gave it to me because they wanted me to be the one to write about it. [more]

                Now I feel stupid, but had to make sure…

  6. Mary says:

    “I’m not saying FBI Agents would use a Miranda delay to waterboard a detainee (waterboarding is CIA turf, after all). The CIA system clearly provided the opportunity for much more abuse.”

    You know, one thing you can look to imo is what happened with Higazy, right in NYC which is very experienced with terrorism. The FBI in its lie detector questioning of him set up for him the scenario that they were going to have Suleiman’s thugs pick up Higazy’s sister for questioning since they weren’t getting what they wanted from him. The interrogator later admitted that they knew Egyptian intel tortured and Higazy was terrified for his sister. And b’gosh and b’gorrah – luck of the NYC Irish, after the threats and keeping at it for long enough, they finally got a lie detector result just like what they wanted, with Higazy admitting to owning the ground to air communicator that was found.

    If it hadn’t been for the fact that secrecy had not fully descended (as would be the case later, when DOJ via Pepsico’s Larry Thompson was signing off on sending Maher Arar to be tortured in Syria) and the pilot who went looking for his communication device was very open and outspoken, Higazy could very well just be an unaccounted for person now – or one of those mentally broken men at GITMO who can’t be placed bc of their severe mental status issues after years at GITMO. And his sister could be just another woman picked up, raped, tortured, etc. by Obama’s hero, Suleiman.

    BTW – Comey was running the show when DOJ/FBI investigated the Higazy interrogations that resulted in the false confessions and, unsurprisingly, Comey smilingly declared that no one with DOJ/FBI had done anything wrong and everything was spiffy neato keen and he was just as proud as punch of his boys.

    So combo that, running FBI, (or even the FISAfibber Townsend, or a Wainstein etc.) with the loose standards and you see that the message is – don’t worry, whatever you do, you’ll get by with it.

    • earlofhuntingdon says:

      Let’s keep that in mind as the Democratic PTB try to rehabilitate Comey as an advocate of some sort of Obama-like “middle ground” and try to bring him back into government.

    • Jason Leopold says:

      Now Comey is in the running to be FBI Director. If he makes the cut I would be interested in hearing how he responds to this new change if such a question is posed.

      • Mary says:

        “Now Comey is in the running to be the FBI director”

        That’s what I was inarticulately ranting at with “So combo that, running FBI,” I should have used him or Comey. Townsend, who was on the line for the FBI FISA filings scandal that preceded 9/11 and who Lamberth makes it sound like got kicked off the list of those who could make FISCt applications under his tenure (he doesn’t say it in so many words, but that’s sure what the reports sounded like – that the FISCt lost confidence in her veracity after the problem with all the fibby applications) would be another interesting choice. The Dems would never bother to bring up her prior FISCt run ins.

        @19 – I think he’s a shoe in if Obama picks him and no one will even mention Higazy. Or his Padilla presser. Or the fact that it was the surveillance program that got his stamp of approval that was reviewed by Judge Diggs-Taylor and found to be unconstitutional by her on the merits, before the 6th circuit decided that they wanted to evade the merits with a shoddy standing analysis. Oh his Arar affidavit.

        We’re at a really major league sad juncture when the party of opposition comes into power and all they can come up with for FBI leadership is a lot of the same guys and gals who ran the counry into the ground under the prior party. But Obama is doing the same things Bush did, so he pretty much has to go to the Bush cartel for coverage.

        • Jason Leopold says:

          Oh I’m sorry Mary. I didn’t catch that. I can’t imagine anyone in Congress would even care enough to dig into the memory hole to discuss Higazy if Comey is in fact Obama’s pick.

          We’re at a really major league sad juncture when the party of opposition comes into power and all they can come up with for FBI leadership is a lot of the same guys and gals who ran the country into the ground under the prior party.

          Totally agree with you. I realize that Comey is seen at one of the rare heroes of the last administration, but still.

  7. earlofhuntingdon says:

    OT, but this is just foolish:

    Michigan Drastically Cutting Unemployment Insurance.

    Eventually, that will lead to radicalization and social protest. Social Security and other safety net programs are not merely inherently moral and economically wise. They were intended to stem the growth of socialist movements and violence (two distinct and separate “evils”), which the American right then feared more than it does Muslims today.

    If that comes to pass, it will be used to justify federalization of local law enforcement, greater declines yet in civil liberties, the use of greater surveillance and the use of all those toys the feds and the private sector have been urging locals to buy. As with everything the likes of Scott, Walker and Kasich are doing, that will be great for disaster capitalists, but do great harm to everyone else.

  8. rosalind says:

    detainee related: Electroshock might be good for accused JFK terror plotter: doc

    A doctor testified today that electroshock therapy might be an effective treatment for a depressed man accused of plotting a terror attack at JFK Airport.

    Kareem Ibrahim, 65, who is awaiting trial for allegedly planning to blow up aviation fuel pipelines at the New York airport, has been refusing to eat and his weight has plummeted to 114 pounds.

    At a court hearing today, Dr. Karl Bernhard, a federal prison hospital physician, testified that Ibrahim was suffering from “self-inflicted starvation and dehydration.”

    The doctor told Judge Dora Irizarry in Brooklyn federal court that “electroconvulsive therapy” might be one way to treat Ibrahim’s continual depression, resistance to eat or drink, and “oppositional behavior disorder.”

    Oppositional behavior disorder. *gah*

  9. PeasantParty says:

    If this were a just country and laws really meant something then Holder would be painting himself into a corner. A corner that would make it impossible for him and other criminal jerks in DC to get out of!

    Let’s see now, we’ve had biological terror, military terror, economic terror, and even foreign nationals given clearance to kill us on the grounds of terror while all agencies looked the other way on a specific date. At this exact time we are experiencing livelihood terror and removal of peaceful assembly to bargain.

    It would be wise for Holder to rethink his new rules. ;-)

    • earlofhuntingdon says:

      Like Dr. James, Mr. Holder is not an independent actor – Rahm Emanuel made that clear early on, and Holder acquiesced without much apparent fight over the prerogatives and duties of his department. The DoJ is not the president’s personal criminal defense law firm; he has his office of White House counsel for that. It is the chief prosecutor and enforcer of US laws.

      Both are courtiers, whose job is to follow their patron’s lead. Sometimes they are duly rewarded.

  10. radiofreewill says:

    OT Wildcats on the verge of sending the Sweater Vests home…

    Kentucky wins in the upset, 62-60!

  11. Jason Leopold says:

    Harpie @39: perfectly legitimate question. Deborah Popowski over at Harvard, who was a party to the complaint filed against James, called me yesterday as well to give me the details to write a story based on an email she obtained that James disseminated. But I did not pick up the voicemail until last night. D’oh!!!!!

      • Jason Leopold says:

        Harpie, thank you! Yes. The WH press office, fwiw, also told me a little while ago that there isn’t any task force that James was appointed to and they don’t know what he is talking about. They noted that Michelle Obama and Jill Biden have been plugging Obama’s “Strengthening Military Families” initiative that was unveiled in January, which has “Enhancing the Psychological Well-Being and Strength of Military Families” as one component. Now, that’s far different than what I was told earlier today in that a military official at the National Security Council who is leading this initiative recommended James to the WH to advise about that component and they waited until the complaint filed against him was dismissed in late January/early February before submitting his name. Perhaps more will be revealed about what really went on/happened (and I don’t particularly buy the WH official story). But I don’t think James will be working with the WH anytime soon.

  12. CassandraBearingWitness says:

    All the hype, lies, entrapment and torture-extracted dubious information notwithstanding, not to mention the trillions of dollars and loss of many of our constitutional rights,, the fact is that there is very little, if any, evidence that this putative war on terror (whatever its current euphemism) and increased security theater have foiled any credible plots or prevented any violent incidents. Taking into account the thousands of Americans and millions of Iraqis, Afghans, Pakistanis, Yemenis and others killed, maimed, widowed, orphaned, left homeless or driven into exile, the accelerating radicalization of Muslims worldwide in consequence of our aggression, and massive increases in our national debt, any sane person would have to conclude that this whole enterprise is ill-conceived, wasteful, counterproductive and supremely stupid. The best way to prevent terrorism is to stop oppressing people, directly or indirectly.