The Senate Torture Report and CIA’s Lies about Hassan Ghul’s 2004 Torture

Update, March 12, 2015: We know from the Torture Report that the detainees treated in July and August 2004 were not Hasan Ghul, but Janat Gul and two others.
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In my last post, I noted that in his report that Hassan Ghul served as a double agent before we offed him with a drone, Aram Roston stated, without confirming via sources, that Ghul is the person whose name was not entirely redacted on the bottom of page 7 in the May 2005 Convention Against Torture (CAT) torture memo. I noted that if Ghul is the detainee (and I do think he is, contrary to what sources told AP when the CIA was hunting Ghul down with drones in 2011), then we’re going to be hearing about him — and arguing about his treatment — quite a bit more in the coming weeks.

That’s because, according to information released by Mark Udall, the detainee named in the CAT memo is one of the detainees about whose treatment the CIA lied most egregiously to DOJ. This is apparently one of the key findings from the Senate Intelligence Committee Torture Report that CIA is fighting so hard to suppress.

Mark Udall’s list of torture lies

Back in August, Mark Udall posed a set of follow-up questions to then CIA and now DOD General Counsel Stephen Preston. Udall was trying to get Preston to endorse findings that appeared in the Torture Report that hadn’t appeared elsewhere (in his first set of responses about CIA’s lies to DOJ, Preston had focused on CIA’s lies about the number of waterboardings, which the CIA IG Report had first revealed). Udall noted that that lie (“discrepancy”) was known prior to the Torture Report, and asked Preston to review the “Representations” section of the Torture Report again to see whether he thought the lies (“discrepancies”) described there — and not described elsewhere — would have been material to OLC’s judgements on torture.

Udall gave Preston this list of OLC judgements that might have been different had CIA not lied to DOJ. (links added)

The 2002 memo is the original Abu Zubaydah memo, the lies in which (pertaining to who AZ was, what the torture consisted of, what had already been done to him, and whether it worked) I’ve explicated in depth elsewhere. The 2006 memo authorizes torture in the name of keeping order in confinement and the 2007 memo authorizes torture (especially sleep deprivation); both of these later memos not only rely on the 2005 memos, but on the false claims about efficacy CIA made in 2005 in their support. The lies in them pertain largely to the purpose CIA wanted to use the techniques for.

Which leaves the claims behind the 2004 letters and the 2005 memos as the key lies CIA told DOJ that remain unexplored.

The 2004 and 2005 lies to reauthorize and expand torture

I’m going to save some of these details for a post on what I think the lies told to DOJ might be, but there are two pieces of evidence showing that the 2005 memos were written to retrospectively codify authorizations given in 2004, many of them in the 2004 letters cited by Udall.

We know the 2005 memos served to retroactively authorize the treatment given to what are described as two detainees in 2004, purportedly in the months after July 2004 (though this may be part of the lie, in Ghul’s case) when DOJ and CIA were trying to draw new lines on torture in the wake of the completion of the CIA IG Report and Jack Goldsmith’s withdrawal of the Bybee Memo.

We know the May 10 Combined Memo was retroactive because Jim Comey made that clear in emails raising alarm about it.

I just finished a long call from Ted Ullyot. He said he was calling to tell me that “circumstances” were likely to require that the second opinion “be sent over tomorrow.” He said Pat had shared my concerns, which he understood to be concerns about the prospective nature of the opinion and its focus on “prototypical” interrogation.

[snip]

He mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

This memo probably, though not definitely, refers to a detainee captured in August 2004 in anticipation of what the Administration claimed (almost certainly falsely) were election-related plots in the US.

And we know the May 10 Techniques and May 30 CAT memos are retroactive because we can trace back the citations about the treatment of one detainee, the detainee who appears to be Ghul, to the earlier letters from 2004.

Just as an example, the August 26 letter cited in Udall’s list relies on the August 25 CIA letter that is also cited in the CAT Memo using the name Gul (the July 22 and August 6 letters are also references, at least in part, to the same detainee).

So we know the 2005 memos served to codify the authorizations for torture that had happened in 2004, during a volatile time for the torture program.

The description of Hassan Ghul in the lying memo

There are still some very funky things about these memos’ tie to Hassan Ghul (again, that’s going to be in a later post), notably that Bush figures referred to the Ghul of the August letters as Janat Gul, including in a Principals meeting discussing his torture on July 2, 2004; sources told the AP after OBL’s killing that this Janat was different than Hassan and different than the very skinny Janat Gul who had been a Gitmo detainee.

But this description — the timing of the initial references and the description of his mission to reestablish contact with Abu Musab al-Zarqawi — should allay any doubts that Ghul is one of two detainees referenced in the CAT memo.

Intelligence indicated that prior to his capture, [redacted] “perform[ed] critical facilitation and finance activities for al-Qa’ida,” including “transporting people, funds, and documents.” Fax for Jack Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [redacted] Assistant General Counsel, Central Intelligence Agency (March 12, 2004). The CIA also suspected [redacted] played an active part in planning attacks against United States forces [redacted] had extensive contacts with key members of al Qaeda, including, prior to their captures, Khalid Sheikh Mohammed (“KSM”) and Abu Zubaydah. See id. [redacted] was captured while on a mission from [redacted] to reestablish contact with al-Zarqawi. See CIA Directorate of Intelligence, US Efforts Grinding Down al-Qa’ida 2 (Feb 21, 2004).

Ghul was captured by Kurds around January 23, 2004, carrying a letter from Zarqawi to Osama bin Laden.

So while there are a lot of details that the Senate Torture Report presumably sorts out in detail, it seems fairly clear that Ghul is the subject of some of the documents in question, and that, therefore, there are aspects of the treatment he endured at CIA’s hands that CIA felt the need to lie to DOJ about.

We’ve known for years that CIA lied to DOJ about what they had done and planned to do with Abu Zubaydah. But a great deal of evidence suggests that CIA lied to DOJ about what they did to Hassan Ghul, a detainee (the Senate Report also shows) who provided the key clue to finding Osama bin Laden before he was tortured.

If that’s the case, then I find the release of a story that, after that treatment, he turned double agent either directly or indirectly in our service to be awfully curious timing given the increasing chance we’re about to learn more about these lies and this treatment with any release of the Torture Report.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

9 replies
  1. orionATL says:

    interesting.

    is it not possible that gul and awlaki were killed to prevent them from ever talking about their adventures with the u.s. gov’s black warriors? just as al-libi was killed for us by the libyans, the three about-to-be-freed detainees were murdered at guantanamo, and kelly (?) was murdered by the brits or their agents?

    i’m sure others could be brought to mind.

    the cia always cleans up its gory history thru lying, withholding information, destroying evidence (torture tapes), and murder.

    if so, this would seem to make the assassination of al-awlaki even more criminal (murdering a witness) than it first seemed.

    this perspective might account for why al-awlaki’s son was killed – “whatever you’ve heard, forget it!”

  2. orionATL says:

    @orionATL:

    the attack on the cia drone base at khost was, i think, on dec 29,2009.

    the attack, as i recall, was by a palestinian doctor working as a spy for the jordanians and accepted with trust by the cia boss at khost.

    i wonder if it is possible that al-awlaki and h. gul were targeted due to some cia determination that these two helped the khost suicide mission suceed.

    the cia seems quite intent on wreaking revenge on all involved in that suicide bombing.

    these thoughts arise from considering that no sensible cia black warrior could ever believe:

    – that any recruit would not be likely to work many recruiters and would be likely to serve more than one. expecting loyalty of recruited spies would be seriously stupid.

    – that a person (gul) who had been tortured by americans would not seek an opportunity for revenge or that a yemini-american (al-awlaki) sent back to yemen as an agent (double, triple, quadruple, to the nth power, whatever) would not succumb to the desire to help his own people.

    punishing “deserter spies” just to set an example seems like an odd, empty strategy.

  3. orionATL says:

    @orionATL:

    just for the record, all cia black warriors/paramilitary/counter-terrorism/counter-rebels/counter-insurgents are in fact double agents.

    these cia operatives, and especially their management cadre, both work for the u.s. government and

    turn around and use all their counter-x tactics on the american people and their government in a perpetual effort to evade attempts to discover just what these black warriors have been doing in our name

    and to evade any accountability under american law.

    these thugs and rogues are the infestation that screaming “we need boots on the ground” into the telly in 2002 gained us.

  4. C says:

    Perhaps Gul did turn or offered to turn if only to end his torture and was then killed later once they realized their mistake? I’ve often wondered how many of the “turned” double-agents that the CIA recruited were just lying to get out and had no plans to help. The idea that porn would be sufficient blackmail to erase torture seems pathetically naive.

  5. emptywheel says:

    @orionATL: Don’t think that’s it, but I DO think they may have gotten more careful abt cleaning up loose double agents after that.

    Though remember, their probable first attempt to kill Awlaki was 12/24/09.

  6. orionATL says:

    @emptywheel:

    i wouldn’t bet one thin dime on any speculation i’ve written here.

    but i just don’t have a good feeling about the explanations of these events, especially as they may relate to al-awlaki’s assassination.

    as you’ve reminded me, somebodies tried to off al-a on dec 24, before he
    “became” “operational”. coincidentally or not, that was one day before the nutty nigerian set his nuts afire over detroit. and three months after nidal hasan killed several of his fellow soldiers.

    after al-a was declared operational, we went after him in ernest, ostensibly because he was inciting/blessing/planning terrorists attacks.

    but was he? from reading your columns i have learned that another yemeni (droned much later) may have been the tutor for the nigerian.

    presumably, then, the cia/nsc knew all this (that al-a may not have been responsible for the detroit “bombing”). but they still went after him and eventually killed both him and his son.

    all this american effort – legal and military – just to off a double-agent?

    as i said above, surely the cia expects their agents to play all sides to the middle. al-a going back to yemen and becoming sympathetic to his people could not possibly have surprised the cia.

    but if al-a knew that abdul farouk was a fake effort under the control of americans and allies at all times? that might be something to hide.

    and that might be something that could get a prez, nsc staff, and cia staff in big political trouble – not to mention legal.

    so, i’m looking for an explanation that feels right and accounts for a lot of apparently unrelated events. offing double agents solely because they are double agents doesn’t feel right – which of course does not mean it didn’t happen just that way.

  7. bloodypitchfork says:

    So many theories/conspiracies/memos…so little time. What IS clear, is the long term evilness of the CIA, and the conspiring scumbags at DOJ to obliterate any moral compass this country may have had at one time. Their shamelessness is beyond comprehension..especially..the “Principals”, who to this day, wield the supranational sovereign power to torture with impunity while holding the International Criminal Court at bay by virtue of Dept of State threatening signatories with aid withdrawal, notwithstanding the threat of actual military assault on any party who dare detain US military personnel who allegedly commits war crimes…the Hague included.
    These heinous and vomit inducing acts aside, here is what bothers me most. Within 15 days post 9/11, Senator pond scum himself, Jesse Helms
    introduced legislation to amend the American Servicemembers Protection Act.
    http://www.jochen-birk.de/helms.htm

    While emptywheel no doubt wrote about it, and some members here are aware, I just came across this astounding bit of information recently. Notwithstanding his complete refutation of International law, something in Helms speech caught my eye….
    quote:”(snip)..Mr. President, I am among those of their fellow countrymen who insist that these men and women who are willing risk their lives to protect their country and fellow Americans should not have to face the persecution of the International Criminal Court — which ought to be called the International Kangaroo Court. This court will be empowered when 22 more nations ratify the Rome Treaty.”unquote

    Kangaroo Court indeed. America is full of them.

    (snip)
    quote:”Mr. President, instead of helping the United States go after real war criminals and terrorists, the International Criminal Court has the unbridled power to intimidate our military people and other citizens with bogus, politicized prosecutions. Similar creations of the United Nations have shown that this is inevitable.”unquote

    Real war criminals. right.
    (snip)
    The United Nation’s conference on racism in Durban, South Africa, this past month, became an agent of hate rather than against hate. With this track record, it is not difficult to anticipate that the U.N.’s International Criminal Court will be in a position not merely to prosecute, but to persecute our soldiers and sailors for alleged war crimes as they risk their lives fighting the scourge of terrorism.”unquote

    Alleged war crimes????? We hadn’t even gone into Iraq yet. What this tells me, is he ALREADY knew the CIA was committing war crimes, notwithstanding the military in previous wars. What he was doing, is setting up the legal boundaries whereby NO ONE could prosecute US personnel for war crimes lest the International Criminal Court and it’s signatories dared retribution. If this isn’t living proof our “exceptionalism” is pure unadulterated bullshit..I don’t know what is.

    And now, seeing these “torture memos”, there is no possible way for the USG to deny they INTENTIONALLY, tried to circumvent the actual statutes against torture. And in “secret” no less. Any one who now says this country ISN’T the definition of WAR CRIMINAL is fucking braindead.
    Frankly, I don’t know how any American can look in a mirror anymore. America should be hanging it’s head in shame.

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