Michael Hayden said something that confused me today on Fox News. When asked whether he thought waterboarding is torture, he replied simply that DOJ had said it was not.

Question: Are you satisfied that waterboarding is not torture?

HAYDEN: I’m satisfied that the Justice Department, in a series of opinions — ‘02, ‘03, ‘05 — said that it was not. Now…

See, we know that DOJ addressed waterboarding specifically in 2002 and 2005 in the memos released last week. 

But 2003?

Yes, there is one I, at least, have forgotten. The one in which the White House signed off on waterboarding, even after they had waterboarded KSM 183 times in a month. 

6/XX/03
White House
CIA
Interrogation of prisoners

 Here’s the WaPo’s description of this 2003 memo, from last year when we were all trying to elect Barack Obama President. 

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — documents prompted by worries among intelligence officials about a possible backlash if details of the program became public.

The classified memos, which have not been previously disclosed, were requested by then-CIA Director George J. Tenet more than a year after the start of the secret interrogations, according to four administration and intelligence officials familiar with the documents. Although Justice Department lawyers, beginning in 2002, had signed off on the agency’s interrogation methods, senior CIA officials were troubled that White House policymakers had never endorsed the program in writing.

The memos were the first — and, for years, the only — tangible expressions of the administration’s consent for the CIA’s use of harsh measures to extract information from captured al-Qaeda leaders, the sources said.

Gosh, that would be an interesting memo to see, wouldn’t it?

(Updated entirely to make sensible after I discovered I’m a bone-head.)

I think I’ve finally gotten some folks to to pay attention to the OLC Memo revelation that KSM was waterboarded 183 times in a month.

In that post, I suggested that if it took 183 uses of waterboarding to make KSM comply with interrogators wishes, then waterboarding is far less effective than the CIA would like us to believe. It appears the CIA IG was raising the number of times KSM was waterboarded in the same context I am–to question the efficacy of waterboarding someone that many times. 

As I described last night, Steven Bradbury spends four pages of the May 30, 2005 memo trying to prove that enhanced interrogation is effective. He appears to be responding to a six-page passage in the CIA IG Report addressing the efficacy of enhanced interrogation.

I dealt with that section in some detail last night.  But by reconstructing that section best as we can from the fragments Bradbury gives us (see my work below), we see the IG Report was tying the number of times KSM and Abu Zubaydah were waterboarded with its judgment of waterboarding’s (in)efficacy.

Bradbury doesn’t reveal how the IG Report begins the discussion of the efficacy of the enhanced interrogation program. But shortly after the beginning, the IG Report seems to refute claims that individual, high value detainees are the key to collecting information on al Qaeda. It points out that CTC relies on the information from lower-level detainees–presumably collected without enhanced methods since CIA claims it only uses enhanced methods on high value detainees–to round out its understanding of information collected from high value detainees.

CTC frequently uses the information from one detainee, as well as other sources, to vet the information from another detainee. Although lower-level detainees provide less information than the high value detainees, information from these detainees has, on many occasions, supplied the information needed to probe the high value detainees further. … [T]he triangulation of intelligence provides a fuller knowledge of Al-Qa’ida activities than would be possible from a single detainee.

Bradbury leaves out the next part of the IG Report’s discussion. But from there, the IG Report says we can’t conclusively determine whether enhanced interrogations have provided information that has prevented specific attacks (note, the wording of this discussion is very vague, perhaps intentionally so; it could mean any number of things, including that we have zero evidence that torture has prevented attacks, or that we just don’t have evidence one way or another). Then, the IG Report appears to elaborate on this difficulty, noting that, "there is limited data on which to assess their individual effectiveness." Again, this quotation is unclear, but it appears to refer to the effectiveness of one enhanced interrogation method over another. That is, the IG Report appears to be saying it has no way of assessing whether waterboarding is more effective than sleep deprivation than persuasion. Finally, the IG Report admits that enhanced interrogation–or perhaps just waterboarding–is tied to an increase in the number of reports (though it appears to have already dismissed any possibility of assessing the quality of these reports). And it is in that context in which the IG Report discusses the sheer number of times that Abu Zubaydah and KSM were waterboarded. 

In other words, at the tail end of an extended discussion explaining all the reasons we can’t say enhanced interrogation prevented any specific attacks and why it may be a mistake to focus exclusively on individual high value detainees, the IG Report connects the sheer number of reports CIA has gotten when using waterboarding with the sheer number of times it was used on Abu Zubaydah and KSM.

And significantly, 12 pages later the IG Report notes that CIA was using waterboarding more than it had said it had been using it.

Now all of this is obviously very fragmentary, and Bradbury seems to have deliberately obscured the IG Report’s language in key passages. As it happens, though, both the White House and SSCI are in the middle of attempts to assess the efficacy of waterboarding. 

In response to those efforts, the CIA has begun assembling thousands of classified cables that contain daily reports from the agency’s secret prisons, tracking the interrogation methods used on high-value detainees and how much information was obtained as a result.

Let’s hope this inquiry–unlike the memos sent to Steven Bradbury tailored to allow him to claim that torture was effective–do more than track the number of reports gathered under torture. And heck, while they’re at it, perhaps the White House and the SSCI could release this part of the IG Report, which seems to conclude–after having watched thousands of hours of torture videos–that it was not effective.

Sign the petition telling Attorney General Eric Holder to appoint a special prosecutor to investigate torture here.

As Bradbury notes on page 10 of is memo, the IG Report discusses the efficacy of enhanced interrogation from page 85 though 91. Here are the topics that discussion covers, in order, with the Bradbury description of the reference:

Page 85: No direct reference

Page 86: A description of an increase in intelligence reports attributable to enhanced methods and a discussion arguing that you can’t measure the efficacy of interrogation by pointing to just the reports from one detainee..

See IG Report at 86, 90-91 (describing increase in intelligence reports attributable to use of enhanced techniques). 

---

According to the CIA Inspector General:

CTC frequently uses the information from one detainee, as well as other sources, to vet the information from another detainee. Although lower-level detainees provide less information than the high value detainees, information from these detainees has, on many occasions, supplied the information needed to probe the high value detainees further. … [T]he triangulation of intelligence provides a fuller knowledge of Al-Qa’ida activities than would be possible from a single detainee.

IG Report at 86.

Page 87: No direct reference

Page 88: A statement that it is difficult to determine whether interrogations have stopped specific attacks.

As the IG Report notes, it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks. See id. at 88.

Page 89: A statement noting that there is limited data on whether enhanced methods are effective (note–Bradbury pitches this as an observation that the techniques were used "sparingly," which from the context appears to be disingenuous).

And, because the CIA has used enhanced techniques sparingly, "there is limited data on which to assess their individual effectiveness." Id at 89.

Page 90: A comment on the increased number of reports tied to enhanced methods, along with a discussion of the number of times Abu Zubaydah was waterboarded.

See IG Report at 86, 90-91 (describing increase in intelligence reports attributable to use of enhanced techniques). 

---

The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah. IG Report at 90, and 183 times during March 2003 in the interrogation of KSM, see id. at 91.  

Page 91: A comment on the increased number of reports tied to enhanced methods, along with a discussion of the number of times KSM was waterboarded.

See IG Report at 86, 90-91 (describing increase in intelligence reports attributable to use of enhanced techniques). 

---

The CIA used the waterboard … 183 times during March 2003 in the interrogation of KSM, see id. at 91.  

Pages 103 and 104: An observation that waterboarding was used more than initially indicated.

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04,

image courtesy of quapan

In another thread, Bob Schacht wrote,

BTW, according to CNN, Haynes and Mukasey are claiming that “half” of what we “know” about Al Qaeda came from torture sessions. Did they really write that, and if so, I’m wondering if its puffery or true.

Using the May 30, 2005 Bradbury memo, I think I can show where it comes from–and show why it’s a totally useless claim.

Bradbury Needed to Appeal to Efficacy to Claim These Techniques Didn’t Violate the Convention Against Torture

In the May 30, 2005 Memo, Steven Bradbury spends four pages recording the effectiveness of enhanced interrogation. He does this, at least partially, to make sure he can claim that the techniques at issue don’t "shock the conscience" and therefore don’t violate the Fifth Amendment (and therefore don’t violate CAT, which is the whole point of this memo) . In particular, Bradbury resorts to efficacy when trying to distinguish between torture condemned by the State Department and that practiced by the US. Speaking of torture practiced by other countries, Bradbury claims it simply doesn’t serve the same purpose as our torture.

There is no indication that techniques are used only as necessary to protect against grave terrorist threats or for any similarly vital government interests.

And when Bradbury is trying to distinguish enhanced interrogation from SERE, he again appeals to efficacy and necessity.

… the interrogation program we consider here furthers the paramount interest of the United States in the security of the Nation more immediately and directly than SERE training.

[snip]

It follows that use of these techniques will not shock the conscience in at least some circumstances. We believe that such circumstances exist here, where the techniques are used against unlawful combatants who deliberately and secretly attack civlians in an untraditional armed conflict in which intelligence is difficult or impossible to collect by other means and is essential to the protection of the United States and its interests, where the techniques are used only when necessary and only in the interrogations of key terrorist leaders reasonably thought to have acionable intelligence, and where every effort is made to minimize unnecessary suffering and to avoid inflicting significant or lasting harm.

It bears noting that this rant goes far beyond what Bradbury elsewhere carefully laid out as the premise of his memo. But both this claim and the one dismissing State Department concerns about torture rely on his argument that the program was necessary to protect the US. 

So to accomplish his apparent task–which was to find a way to declare the CIA interrogation program did not violate CAT (after CIA’s own IG had already concluded it did), Bradbury needed to be able to say it was effective.

The CIA IG Report Appears to Have Been Ambivalent about the Value of Enhanced Interrogation Program

Now, in addition to the overriding problem presented by the IG Report’s conclusion that the CIA interrogation program violated the Convention Against Torture, the IG Report presented another problem for Bradbury. Based on the citations that appear in this memo, the IG Report appears to have been very ambivalent about the value of the enhanced interrogation program. For example, the IG Report notes it is difficult to measure the efficacy of the interrogations.

As the IG Report notes, it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks. See id. at 88. And, because the CIA has used enhanced techniques sparingly, "there is limited data on which to assess their individual effectiveness." Id at 89.

(There’s a third reference to the IG Report just below these two, but it appears to be a somewhat gratuitous reference on Bradbury’s part so he could pretend he had addressed all the IG Report’s concerns.)

In addition, the IG Report notes that the value of the program cannot be measured by individual pieces of information.

According to the CIA Inspector General:

CTC frequently uses the information from one detainee, as well as other sources, to vet the information from another detainee. Although lower-level detainees provide less information than the high value detainees, information from these detainees has, on many occasions, supplied the information needed to probe the high value detainees further. … [T]he triangulation of intelligence provides a fuller knowledge of Al-Qa’ida activities than would be possible from a single detainee.

IG Report at 86. As illustrated below, we understand that even interrogations of lower-tier high value detainees supply information that the CIA uses to validate and assess information elicited in other interrogations and through other methods.

Now, I can’t be sure without the full context of the IG Report, but Bradbury appears to be pulling a rhetorical switch here. The IG Report passage appears to say that CIA should not focus exclusively on these high value individuals, because without the information from "lower level detainees" (note, not "lower-tier high value detainees," which Bradbury uses but which in this memo has no real meaning), interrogators can’t really get information from high value detainees anyway. This "triangulation" approach actually would seem to support the FBI method of interrogation more than the CIA method. But, in a discussion about the efficacy of enhanced techniques purportedly used only with high value detainees, Bradbury promptly elides the difference between interrogation of other detainees with that of high value detainees, and in so doing ascribes some of the value of more mundane interrogation to the enhanced interrogation program.  

Now, Bradbury calls his discussion of these two points "caveats," suggesting that he reluctantly cedes the IG Report’s doubts about the enhanced interrogation methods. 

He only makes one reference to the IG Report in a manner that appears to be positive–but Bradbury claims it supports a point it doesn’t appear to. Here’s the context:

In particular, the CIA believes that it would have been unable to obtain critical information from numerous detainees, including KSM and Abu Zubaydah, without these enhanced techniques. Both KSM and Zubaydah had "expressed their belief that the general US population was ‘weak,’ lacked resilience, and would be unable to ‘do what was necessary’ to prevent the terrorists from succeeding in their goals." [Effectiveness Memo] at 1. Indeed, before the CIA used enhanced techniques in its interrogations of KSM, KSM resisted giving any answers to questions about future attacks, simply noting, "Soon, you will know."  Id. We understand that the use of enhanced techniques in the interrogation of KSM, Zubaydah, and others, by contrast, has yielded critical information. See IG Report at 86, 90-91 (describing increase in intelligence reports attributable to use of enhanced techniques). 

Note what he’s doing here. In support of his claim that "enhanced techniques … yielded critical information" he provides citations that prove enhanced techniques yielded a larger number of reports. Bradbury here is conflating quality–"critical"–with sheer number in a bid to pretend the IG Report said something that–at least from his citations of it–it didn’t say.

In other words, faced with the need to use efficacy as a way to claim the interrogation program didn’t violate CAT, Bradbury was also faced with the IG Report’s assessments which–at best, at least according to his citations–only accepts that the enhanced interrogation methods led to an increase in the number of intelligence reports. 

CIA Produced Two Documents in Preparation for this Memo

So Bradbury got the CIA to create two documents for him that argue for the efficacy of the program.

Bradbury primarily cites two documents to make his claim that the interrogation program was effective (along with some older intelligence reports):

• Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from [redacted], DCI Counterterrorist Center, Re: Effectiveness of the CIA Counterintelligence Interrogation Techniques (March 2, 2005) ["Effectiveness Memo"]
• Fax from [redacted], DCI Counterterrorist Center, Briefing Notes on the Value of Detainee Reporting (April 15, 2005) ["Briefing Notes"]

The descriptions make clear that both these documents were created for him. And, both these documents were created in the months leading up to this memo. In other words, these documents appear to have been created precisely to give Bradbury what he needed–the ability to argue the program was effective.

And largely based on these two documents, Bradbury provides a page and a half of specific intelligence derived from enhanced interrogation of KSM and Abu Zubaydah. Even in that page and a half, there are factual problems with Bradbury’s description. There’s information included that we know was available prior to their detention; there’s information included that was reportedly collected through persuasive rather than coercive interrogation; much of it relates to and came from lower level detainees; it includes the Padilla dirty bomber claim.

In addition, for both KSM and AZ, Bradbury includes a footnote saying "we discuss only a small fraction of the intelligence CIA interrogators have obtained" from them. Perhaps there is more important intelligence they got. Perhaps Bradbury has simply left out the inaccurate information. But we don’t know because he doesn’t give it to us.

And to be fair, there’s a better part of a page listing the intelligence gained from AZ that is entirely redacted.

(Also note, I can’t be sure, because of the huge redaction that appears in this section, but Bradbury doesn’t appear to deal with intelligence gotten from Rahim al-Nashiri, which I find a notable omission since waterboarding was supposed to have been immediately successful with him.)

From a qualitative standpoint, what Bradbury has given us does not make a convincing case for the importance of the intelligence gathered through torture. More importantly, Bradbury stops far short of providing an assessment of all the intelligence gained through torture, to weigh what was valid and important against the intelligence that turned out to be useless. So while Bradbury’s qualitative argument that enhanced interrogation is unconvincing, he doesn’t even try to address the claim that torture produces a lot of worthless intelligence.

The "Half the Intelligence" Claim Refers Only to Number of Reports

Which brings us, finally, to the claim the torture apologists are relying on–that half the intelligence they’ve gotten, or "half of what we know" comes from enhanced interrogation.

That claim comes–at least partly–from the Briefing Notes created for Bradbury so he’d have some way to make a claim that the torture program was effective. After all his list of specific intelligence gleaned through the program, Bradbury includes this:

More generally, the CIA has informed us that, since March 2002, the intelligence derived from CIA detainees has resulted in more than 6,000 intelligence reports and, in 2004, accounted for approximately half of CTC’s reporting on al Qaeda. See Briefing Notes at 1; see also IG Report at 86 (noting that from September 11, 2001, through April 2003, the CIA "produced over 3,000 intelligence reports from" a few high value detainees). You have informed us that the substantial majority of this intelligence has come from detainees subject to enhanced interrogation techniques. 

So this is how (or at least one possible way how) torture apologists get to half of "what we know." In a document created for this purpose, the CIA says that CIA detainees account for half of CTC’s reporting on al Qaeda. Which, I assume, doesn’t count what FBI knows about al Qaeda, for example. And that’s not all from torture–though "the substantial majority" is.

Or, you can use a different measure and realize that if a few high value detainees led to the production of 3,000 intelligence reports and two years later half of what CTC knew amounted to 6,000 reports, then those 3,000 reports from eighteen months of torture is awfully impressive!

But you’d still be talking only about the sheer number of reports!! 

Golly. The CIA is very impressed with itself that–after waterboarding KSM and AZ a combined 266 times, they spat up 3,000 intelligence reports, many of them utterly useless.

And that’s what–at least from the evidence in this OLC memo–the torture apologists’ claim appears to amount to. Self-congratulation that they’ve crafted a system designed to churn out as many intelligence reports as they can possibly churn out.

But even the torture apologists are not making a claim for the quality of that intelligence. 

I wanted to revisit this David Johnston article from September 10, 2006, written shortly after Bush brought the High Value Detainees to Gitmo (the second time, for some of them). At the time, the article served to challenge Bush’s portrayal of a fine-tuned interrogation system and pretty obviously aired the two sides of the FBI-CIA dispute over torture.

But rather than the smooth process depicted by Mr. Bush, interviews with nearly a dozen current and former law enforcement and intelligence officials briefed on the process show, the interrogation of Mr. Zubaydah was fraught with sharp disputes, debates about the legality and utility of harsh interrogation methods, and a rupture between the Federal Bureau of Investigation and the C.I.A. that has yet to heal.

Read now, the article provides a lot of background to details that have been confirmed since the release of the memos–and as such it helps elucidate the information coming from the memos. And, by reading it in conjunction with the torture memos, it shows why the dispute between FBI and CIA has remained so intractable. 

Background Details for the Memos

For example, the article appears to report on something Michael Hayden blurted out the other day (and which Steven Aftergood picked up); the interrogation program started as a covert operation.

For the C.I.A., Mr. Zubaydah was a test case for an evolving new role, conceived after Sept. 11, in which the agency was to act as jailer and interrogator for terrorism suspects.

According to accounts by three former intelligence officials, the C.I.A. understood that the legal foundation for its role had been spelled out in a sweeping classified directive signed by Mr. Bush on Sept. 17, 2001. The directive, known as a memorandum of notification, authorized the C.I.A. for the first time to capture, detain and interrogate terrorism suspects, providing the foundation for what became its secret prison system.

That 2001 directive did not spell out specific guidelines for interrogations, however, and senior C.I.A. officials began in late 2001 and early 2002 to draw up a list of aggressive interrogation procedures that might be used against terrorism suspects. They consulted agency psychiatrists and foreign governments to identify effective techniques beyond standard interview practices.

A memorandum of notification is closely related to a finding. Which, as Aftergood pointed out, should mean that Congress’ intelligence committees were informed.

That timing is important for another reason. As Valtin first pointed out, the Administration was researching how to torture at least as early as December 2001. This article suggests the "research" went back even further, to just days after 9/11. Also, the description of Abu Zubaydah as a "test case" certainly accords with the ICRC report–particularly the way it shows interrogators experimenting with different techniques.

This article also reveals a detail made clear in the Bybee Memo.The interrogation started with just oral guidelines.

Three former intelligence officials said the techniques had been drawn up on the basis of legal guidance from the Justice Department, but were not yet supported by a formal legal opinion.

The Bybee Memo states, 

This letter memorializes our previous oral advice, given on July 24, 2002 and July 26, 2002.

(Though I suspect that’s not a comprehensive description of the timing–I would bet that chronology pre-dates July 24.)

The FBI-CIA Dispute about Abu Zubdaydah

Now, one of the things I find most intriguing about Johnston’s description of the squabble between FBI and CIA are the terms used to describes Abu Zubaydah’s cooperation or lack thereof.

In Thailand, the new C.I.A. team concluded that under standard questioning Mr. Zubaydah was revealing only a small fraction of what he knew, and decided that more aggressive techniques were warranted.

[snip]

F.B.I. agents on the scene angrily protested the more aggressive approach, arguing that persuasion rather than coercion had succeeded. But leaders of the C.I.A. interrogation team were convinced that tougher tactics were warranted and said that the methods had been authorized by senior lawyers at the White House.

[snip]

Crucial aspects of what happened during Mr. Zubaydah’s interrogation are sharply disputed. Some former and current government officials briefed on the case, who were more closely allied with law enforcement, said Mr. Zubaydah cooperated with F.B.I. interviewers until the C.I.A. interrogation team arrived. They said that Mr. Zubaydah’s resistance began after the agency interrogators began using more stringent tactics.

Other officials, more closely tied to intelligence agencies, dismissed that account, saying that the C.I.A. had supervised all interviews with Mr. Zubaydah, including those in which F.B.I. agents asked questions. These officials said that he proved a wily adversary. “He was lying, and things were going nowhere,” one official briefed on the matter said of the early interviews. “It was clear that he had information about an imminent attack and time was of the essence.”

Several officials said the belief that Mr. Zubaydah might have possessed critical information about a coming terrorist operation figured significantly in the decision to employ tougher tactics, even though it later became apparent he had no such knowledge.

“As the president has made clear, the fact of the matter is that Abu Zubaydah was defiant and evasive until the approved procedures were used,” one government official said.

We’ve long known that the FBI insisted they had gotten valuable information from Abu Zubaydah from persuasion. We’ve long known that the CIA focuses instead on purportedly valuable information they got through torture. But the chronology here is critical: FBI is interrogating Abu Zubaydah. CIA takes over and that new team–almost immediately, it seems–decides Abu Zubaydah is withholding information. At least partly because Abu Zubaydah had not produced any information about an impending attack, the CIA pushed for more coercion. But always, for the CIA partisans in this fight, there is the claim that "he was defiant and evasive until the approved procedures were used."

The torture memos offer one reason for that formula, I think–indeed, they explain the furor of this debate. Check out what the second paragraph of the Bybee Memo says:

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 Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase." [my emphasis]

That is, the entire memo pre-approving their actions is premised on CIA’s representation that, first, Abu Zubaydah was evasive, and second, that he had more information. That’s got to be one reason the CIA guys are so adamant on this point. It’s their legal lifeline, and if that fact is challenged–as, indeed, the CIA guys knew it to be at the time–then their entire legal cover for their actions falls apart. 

And look at how Bradbury enshrines that restriction in his May 10, 2005 memo (recall that this memo formally superseded the Bybee Memo, though it "confirms the conclusion of [Bybee Memo] that the use of these techniques on a particular high value al Qaeda detainee, subject to the limitations herein, would not violate sections 2340-2340A," so interrogators were relying on this memo as well).

You have explained that the waterboard technique is used only if: (1) the CIA has credible intelligence that a terrorist attack is imminent; (2) there are "substantial and credible indicators the subject has actionable intelligence that can prevent, disrupt or delay this attack"; and (3) other interrogation methods have failed or are unlikely to yield actionable intelligence in time to prevent the attack. 

In addition, in the May 30 Bradbury memo, he cited a March 2, 2005 "Effectiveness Memo" and April 15, 2005 "Briefing Notes on the Value of Detainee Reporting" that make very specific claims about what they got through torture. For example, the "Briefing Notes" claim Abu Zubaydah only revealed KSM’s identity after the use of enhanced interrogation.

Interrogations of Zubaydah–again, once enhanced techniques were employed–furnished detailed information regarding al Qaeda’s "organizational structure, key operatives, and modus operandi" and identified KSM as the mastermind of the September 11 attacks. 

The entire edifice of legal cover the CIA built themselves rests on the premise that 1) Abu Zubaydah was uncooperative and 2) Abu Zubaydah was hiding critical intelligence. Sure, the CIA guys may have believed it at the time (or they may have said those things to win their turf war and to get the chance to try out their fancy new techniques on Abu Zubdaydah). But the further we get from that time and the more that claim is called into question, the more important defending the claim becomes legally.

Because that’s all they’ve got keeping them out of the pokey. 

I’ve put this detail in a series of posts, but it really deserves a full post. According to the May 30, 2005 Bradbury memo, Khalid Sheikh Mohammed was waterboarded 183 times in March 2003 and Abu Zubaydah was waterboarded 83 times in August 2002.

On page 37 of the OLC memo, in a passage discussing the differences between SERE techniques and the torture used with detainees, the memo explains:

The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah. IG Report at 90, and 183 times during March 2003 in the interrogation of KSM, see id. at 91.

Note, the information comes from the CIA IG report which, in the case of Abu Zubaydah, is based on having viewed the torture tapes as well as other materials. So this is presumably a number that was once backed up by video evidence.

The same OLC memo passage explains how the CIA might manage to waterboard these men so many times in one month each (though even with these chilling numbers, the CIA’s math doesn’t add up).

…where authorized, it may be used for two "sessions" per day of up to two hours. During a session, water may be applied up to six times for ten seconds or longer (but never more than 40 seconds). In a 24-hour period, a detainee may be subjected to up to twelve minutes of water appliaction. See id. at 42.  Additionally, the waterboard may be used on as many as five days during a 30-day approval period.

So: two two-hour sessions a day, with six applications of the waterboard each = 12 applications in a day. Though to get up to the permitted 12 minutes of waterboarding in a day (with each use of the waterboard limited to 40 seconds), you’d need 18 applications in a day.  Assuming you use the larger 18 applications in one 24-hour period, and do 18 applications on five days within a month, you’ve waterboarded 90 times–still just half of what they did to KSM.

The CIA wants you to believe waterboarding is effective. Yet somehow, it took them 183 applications of the waterboard in a one month period to get what they claimed was cooperation out of KSM. 

That doesn’t sound very effective to me. 

Sign the petition telling Attorney General Eric Holder to appoint a special prosecutor to investigate torture here.

Update: Here’s one reason to demand a special prosecutor to investigate these actions. In addition to revealing the sheer number of times KSM and Abu Zubaydah were waterboarded, the memos reveal that the interrogators who waterboarded these men went far beyond even the expansive  guidelines for torture described in the Bybee Memo, notably by dumping water onto their nose and mouth, rather than dribbing it on.

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is "for real–and is more poignant and convincing.") [my emphasis]

There’s been a lot of discussion about whether those who did what the OLC memos authorized should be prosecuted. But in the case of those who waterboarded KSM and Abu Zubaydah, that’s irrelevant, because they did things the OLC memos didn’t authorize.

The AP reports that along with John Deutsch and Michael Hayden, George Tenet and Porter Goss have criticized Obama’s release of the torture memos.

Of course Tenet and Goss would criticize Obama’s decision. Both of them are personally implicated by revelations in the memos.

As I noted (as did William Ockham–I stole his transcription), the May 30, 2005 memo makes it clear that people at CIA Headquarters ordered Abu Zubaydah to be waterboarded additional time(s)–for the 83rd time, perhaps?–even after interrogators working with him directly believed he was complying with their demands.

This is not to say that the interrogation program has worked perfectly. According to the IG Report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information. See IG report at 83-85. On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements with CIA Headquarters still believed he was withholding information. [Redaction of more than one full line] See id, at 84. At the direction of CIA Headquarters interrogators, therefore used the waterboard one more time on Zubaydah. [Redaction of ~3/4 of a line] See id, at 84-85.

We can’t pin this on Tenet directly, though we do know Bush was pressuring Tenet at the time to deliver some kind of intelligence that would substantiate Bush’s public assertions that Abu Zubaydah was important within the Al Qaeda ranks.

"I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You’re not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth,"

And in any case, we know that the one time when even the CIA agrees Abu Zubaydah was waterboarded "needlessly," it was done on the order of CIA headquarters under Tenet’s leadership.

Also as I noted, the May 10, 2005 "Techniques" memo reveals that Abu Zubaydah’s interrogator far exceeding OLC guidlines on how to administer waterboarding. 

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is "for real–and is more poignant and convincing.") see also id. at 14 n14.[my emphasis]

Not only does this implicate Tenet–who was DCI at the time–for further mismanagement, but it implicates his successor Porter Goss.

Goss was in charge when the CIA–having been warned not to destroy the torture tapes–did so anyway. And this OLC memo provides proof that CIA had more to worry about than just that the identities of those depicted administering torture on the tapes would be revealed. We know that the tapes were clear evidence that the interrogators were breaking the law–exceeding even the expansive guidelines laid out in the Bybee Memo on how waterboarding should be used. This memo, in other words, proves what we already suspected–that the torture tape destruction served to obstruct justice. 

And that destruction happened on Portor Goss’ watch, even after he had been warned not to let the tapes be destroyed.

So its no wonder that Tenet and Goss would object to the release of these memos. 

What is surprising, though, is that journalists wouldn’t begin to explore why Tenet and Goss feel so strongly about it. 

There’s a BusinessWeek report that confirms two things I’ve been arguing for a while: that Bob Nardelli will be ousted no matter what happens with Chrysler in the upcoming two weeks.

Chrysler CEO Robert Nardelli confirmed in a letter to employees today that he will likely be replaced as CEO of the automaker in the coming weeks as the company faces either an alliance with Italian automaker Fiat or a bankruptcy reorganization or liquidation. The company’s board, too, would be replaced, he said.

And that one of the reasons the Obama Administration treats the Fiat deal as a viable option for Chrysler is that they hope to put Sergio Marchionne, the head of Fiat, in charge of the merged company.

In Nardelli’s letter to employees, the former Home Depot CEO said a new board of directors will have the power to appoint a new CEO. “The majority of the directors will be independent (not employees of Chrysler or Fiat),” Mr. Nardelli wrote. He added that the board “will have the responsibility to appoint a chairman and select a CEO with Fiat’s concurrence.”

Executives close to Chrysler say that it is possible that Fiat CEO Sergio Marchionne will hold the title of CEO, similarly to the way Carlos Ghosn was CEO of both Renault and Nissan for a few years after he was granted the job at Renault. Renault has a controlling interest in Nissan, and had sent Ghosn to Nissan to turnaround the then-ailing Japanese automaker.

 Now, Marchionne is a darling of the Wall Street types because he managed to turn Fiat around. 

"The turnaround he steered at Fiat was just as miraculous as what Carlos Ghosn did at Nissan," says Tony Faria, business professor at the University of Windsor. "Fiat was in big difficulty, losing a lot of money. He had them in profitability in less than two years. The turnaround he steered was just magnificent."

Fiat–one of the oldest industrial businesses in Europe–was on the brink of bankruptcy when Marchionne was appointed CEO in 2004. Less than two years later, the maker of such brands as Ferrari, Alfa Romeo and Maserati returned to profitability as a world leader in environmentally friendly vehicles.

"He takes over and suddenly starts to pull all the right levers," says Eric Mayne, editor of news operations at Detroit-based WardsAuto.com. "At the same, time, miraculously, not only do they get their business model reorganized, but all this wonderful product starts bubbling to the top. I don’t think he can take credit for all of it, but certainly, his fingerprints are on the Cinquecento (Fiat 500), which is all the rage in Europe. If it comes here, it’s going to give the (BMW) Mini Cooper a run for its money."

But with its turnaround, Fiat is still plagued by some of the same problems that face Chrysler: qualify and cash flow.

Fiat cars are unreliable and unsatisfying, according to two respected independent surveys of European-market vehicles.

What’s more, parent company Fiat Group appears not to have enough money to pay debt that matures in the next 12 months, Standard & Poor’s said Tuesday as it downgraded Fiat’s ratings.

So I wonder–can Marchionne really deliver everything the Obama Administration seems to expect from him? Is the Fiat turnaround sufficiently robust to call Marchionne a miracle-worker?

Now, frankly, I do think CEOs matter–having learned that lesson will Alan Mulally, the CEO of Ford. I was consulting with Ford when he was hired and the folks I knew there grumbled openly about this high-paid outsider. But within weeks, the decisions on cut-backs–for the first time that I had seen–began to make sense (one of these decisions was to move the lucrative contract I had to a supplier in Australia, which was a bummer for me but was absolutely the right business decision). Though I wouldn’t particularly want to hang out with the guy, I’ve consistenly maintained that if it weren’t for the credit crunch, it might have been Alan Mulally and not Marchionne being declared the latest miracle-worker in the auto industry.

My concern, though, is the standards for measurement. It absolutely makes sense to replace much of Chrysler’s management, and Nardelli was never hired to "run" an auto company, he was hired to chop it up for sale. 

But the same CEO fetishism that makes Marchionne (or perhaps in the future, Mulally) into the wunderkind of the Wall Street types crafting a Chrysler reorg refuses to see that most of the CEOs that ruined our economy remain in charge, releasing one after another transparently bogus earnings statement.

So, yeah, CEOs matter. But I’m not sure we yet know how to measure them. 

On Wednesday, TPMM reported that the team under investigation for botching the Stevens prosecution has itself investigated a DOJ lawyer.

As we’ve reported, six federal prosecutors from the Stevens case — members of DOJ’s Public Integrity unit, including its head, William Welch — are now being investigated for knowingly withholding evidence, a potential criminal act.

Prosecutions for this offense — known as a Brady violation — are exceedingly rare. But it turns out that in 2006, an Assistant US Attorney was tried on the charge — and acquitted amid allegations that his prosecution was over-zealous.

[snip]

The ironies here begin to mount:

First, Convertino was being tried for an overly aggressive approach to prosecution. But his trial raised questions as to whether the Public Integrity unit was itself overly aggressive in going after him. One former federal prosecutor told the Detroit News after Convertino was acquitted: "The claim was overzealousness by Convertino, but was the government itself overzealous in prosecuting Convertino?"

Then, of course, it’s surprising, to say the least, that having tried this high-profile case focused on a prosecutor withholding evidence, the Public Integrity unit would allow itself to be accused of the very same crime in prosecuting another case. Especially given that Welch, who took over the unit in 2006, was involved in both efforts.

[snip]

There’s also this. Convertino’s lawyers argued that he was overworked and given inadequate resources during the terrorism prosecution. That line echoes this paragraph from a recent New York Times story on the Stevens Six:

One specific issue is whether the department was at fault for failing to pick up on the struggles of a trial team of five principal lawyers that may have been overwhelmed, struggling in the face of tight deadlines and an aggressive defense team from Williams & Connolly, a law firm known for its combativeness, according to current and former Justice Department officials.

As it happens, Convertino was back in the news this week. You see, he’s suing DOJ for privacy violations going back before the PIN investigation case against him. He alleges that DOJ leaked both news of an Office of Public Responsibility investigation into him and the identity of a confidential informant to the Detroit Free Press as part of a campaign of retaliation against him for perceived cooperation with Senate inquiries into DOJ mismanagement of financial investigations. A judge has ordered the reporter in that story to answer questions about who leaked that information to him. And on Thursday, the Appeals Court refused the Free Press’ attempt to halt the reporter’s deposition. 

Frankly, this is a story where there are no good guys. By all accounts, in the days following 9/11, Convertino appears to have pitched a fraud case as a terrorism case and in so doing made grand claims about useless evidence while burying the proof that it was useless. By all appearances, DOJ did allow and encourage this to happen, both through managerial neglect and a desire to push high profile terrorism cases.  It does appear that DOJ panicked when Chuck Grassley started investigating whether DOJ adequately investigated financial fraud–and so responded with a paranoid attack on Convertino that exploited the abuses they had a allowed to happen. And the reporter is arguing that he should be able to protect his confidential source for a story in which he revealed Convertino’s confidential informant (in both cases, I suspect learning the identity of the confidential source really is important to expose government wrong-doing).

All of which tells us something we already knew: DOJ under Bush really became a swamp of mismanagement. 

Today, in between reading torture memos, I burned my front lawn. (Click on the pix to enlarge.)

The first year we moved into our house, mr. ew and I replaced most of the front lawn with native plants. We’ve got some oaks in our side yard which pretty much prevented lawn from actually growing. By replacing the grass with native species, we figured we could have flowers and interesting sedges that didn’t need much care that would thrive under the oaks.

Thing is, you’re supposed to burn native plants every five years or so. The idea is that the burn kills off non-native species and refreshes the natives that are left over. We were overdue. Plus, we had a bunch of ash saplings grow in last year (which is sort of odd, since almost all the ash trees in MI have died off after being infested with the Emerald Ash Borer), which were taking over.

So today we burned our lawn.  Or rather, we had some guys who know what they’re doing come and burn the lawn. There were three of them, dressed like firemen, with backpacks of either gasoline/diesel or water. They’d light the fire, let it burn for a while, then put it out before our house (or, more importantly, the neighbor’s house) went up in flames. The whole process took about a half hour.

Yes, some of the neighbors came out trying to figure out why the heck we were setting our lawn on fire. And, since we live on a fairly busy road, there were plenty of people rubbernecking, trying to figure out what was up. (School’s out today, so the kids weren’t in the elementary school down the street, and we did it during a fairly low traffic hour.)

We burned the actual non-native lawn too. Apparently, it’s buffalo grass, and will come back stronger after the burn, as well. 

So now we’re left with a scorched front lawn!!

The woodsier parks in our town do these burns all the time. It’s amazing to see the fresh new plants growing out of the burn, coming in healthier than before. In a few weeks, that’s what my lawn is going to look like.

Thanks to Peterr and bmaz, a selection of music to accompany this post:

Disco Inferno

Smoke on the Water

Burn

Burning Down the House

Great Balls of Fire

Thanks to bmaz for sitting in a crappy rental car in SF for the last month and a half waiting for Vaughn Walker to make a peep. As he reported, Walker has ordered the government and the al-Haramain team to figure out a way to move forward with the litigation.

Accordingly, the parties are hereby ordered to meet and confer regarding the entry of an appropriate protective order which shall be entered herein before the court rules on the merits.

Frankly, that order is largely a punt. The government and al-Haramain have been squabbling about access for months now, there’s no reason to expect them to be able to come to a resolution, even if Walker pointed them to an approach he seems to think will work. He could have just ordered them to follow that approach, but did not.

But here are the two aspects of the order that are not a punt. First, Walker makes it clear he has read all the documents submitted in this case.

The court has, in keeping with its orders dated January 5 (Doc #537/57), February 13 (Doc #562/71) and February 19 (Doc #566/75), reviewed the Sealed Document and the parties’ various submissions on the subject of appropriate measures to prevent disclosure of classified information while allowing “both parties [] access to the material upon which the court makes a decision.”

And he has said, clearly, that it’s time to get this litigation moving.

The court will then consider the submissions and enter a protective order under which this case may resume forward progress.

In other words, Walker has said, "I’ve read the secret evidence in this case and now I want you guys to figure out how to move foward with this case."

Which pretty much implies that, having read the evidence, Walker believes it will move forward. Unless I’m misreading these tea-leaves (which I doubt, because the tea-leaves have been reading the same way since well before January), Walker is prepared to rule that al-Haramain is an aggrieved party. Meaning, Walker is convinced the government wiretapped al-Haramain illegally.

Not a surprise, in the least, but it’s nice we’re finally getting around to this.

So why the punt, and why the delay?

First, a wildarsed guess. I think the delay may have related to the third of the related warrantless wiretap cases before Walker. You’ll recall the filing submitted two weeks ago, once again making expansive claims of privacy and claiming the government is immune from suit.  Well, given the way all these cases interlock, I suspect Walker may have wanted everything in his hands, so he was sure he could move forward on all three in a sensible fashion. So, he gets the last filing on April 3, works through how all three cases work together, and now we get today’s punt.

So why the punt? Why now?

Partly, I think Walker is giving the government one more chance to be reasonable in an attempt to avoid appeals further down the road (and note–he makes it clear those appeals will take place further down the road).

But he’s also called the government’s bluff. Last we heard in this case, after all, the government was squawking like Cheney, threatening to come take its documents away if Walker tried to give them to al-Haramain.  But what’s it going to do now, if Walker has his ruling on the merits all but written now? Take Walker’s rulings away? Take his notes? In other words, Walker has read the documents–documents that likely impact not just this suit, but also the other suits against the government. And the government can’t take his review of those documents away at this point. 

So we may not have a ruling until after May 8. And we–since we’re not cleared–may not get to see Walker’s ruling, in this case. But I’m guessing we’ll see reflections of it in the two other suits currently pending before Walker.