Central to the prosecutorial misconduct directly resulting in the criminal charges against former Alaska Senator Ted Stevens being dismissed was Brenda Morris, the Principal Deputy Chief of the DOJ Public Integrity Section (PIN). The misconduct was so egregious, and the Office of Professional Responsibility (OPR) so infirm, the trial judge, Emmet Sullivan, appointed a special court investigator to handle a criminal contempt probe.

Has the DOJ itself taken any action in light of the heinous conduct? No, of course not, they never do at the Roach Motel that is the OPR. Instead, the DOJ banished Morris to the Atlanta USA office apparently still as some kind of functioning authority in the Public Integrity (PIN) section. The DOJ is nothing if not consistent, whether under Bush or Obama.

Morris has promptly inserted herself into another high charged political mess, and done so with questionable ethics and curious basis for involvement. From Joe Palazzolo at Main Justice:

Brenda Morris, a veteran trial lawyer in the Criminal Division’s Public Integrity Section, was among a group of federal law enforcement officials who met with Alabama legislators on April 1 to inform them of the probe, which is related to a proposed amendment to the state constitution that would legalize electronic bingo.

The investigation has inflamed tensions between state Democrats and Republican-appointed U.S. Attorney Leura Canary, who prosecuted former Gov. Don Siegelman (D) and whose husband has close ties to Republican Gov. Bob Riley, who strongly opposes the amendment. Canary’s office and the Public Integrity Section are jointly investigating bingo proponents’ quest for votes in support of the amendment, which the Senate passed on March 30.

The state House of Representatives has yet to vote. Alabama Democrats sent a letter to the Lanny Breuer, the head of the Justice Department’s Criminal Division, charging that the “unprecedented” disclosure of the investigation was meant to have a “chilling effect” on state legislators who otherwise might have voted for the amendment.

Here, from the Alabama Press Register, are a few quotes from local Alabama legal experts familiar with the facts and history:

Doug Jones, a former U.S. attorney now in private practice in Birmingham, called the private meeting a “virtually unprecedented” break from standard FBI procedures.

“I can’t think of a legitimate law enforcement purpose to do something like this,” said Jones, who represents members of the Alabama Democratic Caucus.

“I have never, in all my years of practicing law, heard of an event like what happened (on Thursday)” said Mobile County District Attorney John Tyson Jr. “It was stunning to me.”

Former U.S. Attorney William Kimbrough of Mobile said he’d seen nothing like it in a legal career that spans nearly five decades.

So what in the world was Brenda Morris doing smack dab in the middle of such a contentious political mess and how could the Obama/Holder DOJ think it appropriate? The answer is hard to fathom. Morris was supposed to have been tasked to the Atlanta US Attorney’s office as a litigation attorney while she is being investigated by the court for criminal contempt from her last case. You really have to wonder who is running the asylum at DOJ Main to think that there could ever be positive optics from Morris being involved in anything politically contentious.

You also have to wonder how exactly it is the Obama Administration has seen fit to leave Leura Canary, the Karl Rove acolyte who persecuted Don Siegelman, in office as the US Attorney for the Middle District of Alabama. Local blogs are not amused; from Legal Schnauzer:

According to press reports, representatives from the Office of the U.S. Attorney for the Middle District of Alabama played a key role in Thursday’s meeting. Bush appointee Leura Canary, who oversaw the prosecution of former Democratic governor and Bob Riley opponent Don Siegelman, remains in the charge of that office. Alabama’s two Republican U.S. Senators, Richard Shelby and Jeff Sessions, have scuttled various Obama nominees for the position, and the White House, so far, has chosen not to fight for the two candidates (Michel Nicrosi and Joseph Van Heest) favored by Democrats.

Canary’s lingering presence in office almost certainly is driving the bingo investigation. Angela Tobon, an FBI special agent in Mobile, Alabama, told The Birmingham News that the Public Integrity Section (PIN) of the Justice Department is leading the inquiry. Tobon refused to elaborate when contacted by a reporter from the Montgomery Advertiser.
….
Does that mean Leura Canary was able to take advantage of a leaderless organization, contacting “loyal Bushies” still embedded in the Justice Department to help get PIN involved in a bogus Alabama operation?

It sure looks that way.

I honestly do not know enough to make the call on the underlying electronic bingo investigation, but the locals sure look to be raising a lot of very good questions about how it is being used to manipulate the local political landscape. Irrespective of the merits of the underlying investigation, leaving tainted authorities, of questionable ethics, like Leura Canary and Brenda Morris to be the face of this unusual and politically charged matter is simply inexcusable.

Fatster linked to this Carol Rosenberg story, describing how Judge Thomas Hogan dismissed the habeas petitions of over a hundred former Gitmo detainees because they were no longer held at Gitmo–though they may be held by US proxies elsewhere.

A federal judge has dismissed more than 100 habeas corpus lawsuits filed by former Guantanamo captives, ruling that because the Bush and Obama administrations had transferred them elsewhere, the courts need not decide whether the Pentagon imprisoned them illegally.The ruling dismayed attorneys for some of the detainees who’d hoped any favorable U.S. court findings would help clear their clients of the stigma, travel restrictions and, in some instances, perhaps more jail time that resulted from their stay at Guantanamo.

Moreover, he added, CCR affiliated attorneys have tracked former captives to prison at Pol-i-charki, Afghanistan, that was once run by the U.S. military. He said “the U.S. may be pulling the puppet strings” of their continued captivity.

[snip]

Hogan said the attorneys for the former detainees hadn’t offered enough proof that other countries were operating essentially as U.S. proxies. “Petitioners are short on examples, except for the fact that former Guantanamo detainees from Afghanistan transferred back to Afghanistan have been detained at a detention facility built by the United States,” he wrote.

Warning: Very disturbing video.

Wikileaks has now posted the video that–they have suggested–is one of the reasons the US government has been surveilling them. Here’s part of Wikileaks’ description:

The video, shot from an Apache helicopter gun-site, clearly shows the unprovoked slaying of a wounded Reuters employee and his rescuers. Two young children involved in the rescue were also seriously wounded.

While there were armed men among those shot at, they were not engaging the Americans at all. At the moment the Americans started shooting, a number of the targeted men had their back to the helicopter flying overhead. And after they wound the Iraqi photo-journalist, they fly around a while waiting for an excuse to re-engage; they seem to admit he was unarmed when they hit him, and therefore can’t shoot further unless he shows a weapon.

When ground troops arrive at the site and discover two children among the wounded, they blame the Iraqis for the kids’ injuries (this is after 15:30 on the video).

“Well, it’s their fault for bringing their kids into a battle.”

“That’s right.”

Of course, this wasn’t a battle at all. It was unprovoked killing, including the killing of two journalists.

The release of this video, of course, comes on the same day that the NYT details how Special Forces killed three women in Afghanistan and then tried to cover up their actions.

After initially denying involvement or any cover-up in the deaths of three Afghan women during a badly bungled American Special Operations assault in February, the American-led military command in Kabul admitted late on Sunday that its forces had, in fact, killed the women during the nighttime raid.

The admission immediately raised questions about what really happened during the Feb. 12 operation — and what falsehoods followed — including a new report that Special Operations forces dug bullets out of the bodies of the women to hide the nature of their deaths.

A NATO official also said Sunday that an Afghan-led team of investigators had found signs of evidence tampering at the scene, including the removal of bullets from walls near where the women were killed. On Monday, however, a senior NATO official denied that any tampering had occurred.

I expect we’ll be hearing a lot more about civilian killings in the days ahead.

Since the AP story on the Salt Pit death, reporters have focused a lot of attention to a particular footnote in Jay Bybee’s second response to the OPR Report and what it claims about intent (and, to a lesser degree, what it says about Jay Bybee’s fitness to remain on the 9th Circuit). In it, Jay Bybee references a memo CIA’s Counterterrorism Center wrote in response to Gul Rahman’s death at the Salt Pit; the memo argued that the CIA officer in charge should not be prosecuted under the torture statute because he did not have the specific intent to make Rahman suffer severe pain when he doused him with water and left him exposed in freezing temperatures.

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

As Scott Horton noted the other day, analysis of the torture statute should not have been the only thing in the declination memo. Prosecutors should have analyzed whether or not Rahman’s killing constituted negligent homicide, among other things.

Note that the declination, issued by politically loyal U.S. attorneys who were subsequently rewarded with high postings at Main Justice, carefully follows the rationalizations that Yoo and Bybee advanced for not prosecuting deaths or serious physical harm resulting from state-sanctioned torture. But the obvious problem, as John Sifton notes at Slate, is that torture and homicide are hardly the only charges that could be brought in such a circumstance. Negligent homicide or milder abuse charges would have obviously been available, and a survey of comparable cases in the setting of state and local prisoners suggests that they are far more common. By looking only at homicide and torture, the prosecutors were paving the way for a decision not to charge.

But the OPR Report and the Legal Principles/Bullet Points documents it describes may explain why this didn’t happen. The Legal Principles/Bullet Points document shows that CIA claimed–possibly, with the tacit approval of the Principals Committee–that the only two criminal statutes that could be applied to its interrogation program were the Torture Statute and the War Crimes Statute.

As a threshold matter, Horton appears to be misstating what the declination memo described in the footnote is and–more importantly–who wrote it. “Politically loyal US Attorneys” did not write the declination described here. Some lawyer at CIA’s CTC wrote it. That’s because, as the OPR Report explains in the section preceding the entirely redacted passage that discusses this letter (the declination letter appears on PDF 98, which appears in the same section as the following quotes from pages PDF 96 and 97), DOJ told CIA to go collect facts about the abuses they reported in January 2003 (which include the Salt Pit killing and threats of death used with Rahim al-Nashiri) themselves.

According to a CIA MFR drafted by John Rizzo on January 24,2003, Scott Muller (then CIA General Counsel), Rizzo and [redacted] met with Michael Chertoff Alice Fisher, John Yoo, and [redacted–probably Jennifer Koester] to discuss the incidents at [redacted]. According to Rizzo, he told Chertoff before the meeting that he needed to discuss “a recent incident where CIA personnel apparently employed unauthorized interrogation techniques on a detainee.”

[snip]

Chertoff reportedly commented that the CIA was correct to advise them because the use of a weapon to frighten a detainee could have violated the law. He stated that the Department would let CIA OIG develop the facts and that DOJ would determine what action to take when the facts were known. According to Rizzo, “Chertoff expressed no interest or intention to pursue the matter of the [redacted].

On January 28, 2003, CIA Inspector General John Helgerson called Yoo and told him that the CIA OIG was looking into the [redacted] matter. According to Helgerson’s email message to Rizzo, Yoo “specifically said they felt they do not need to be involved until after the OIG report is completed.” Rizzo responded to Helgerson: “Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division’s decision on whether or not some criminal law was violated here will be predicated on the facts that you gather and present to them.”

Alerted that, in the course of interrogating detainees, CIA had killed one and threatened to kill another detainee, DOJ’s first response (at least according to two different CIA versions of what happened) was to tell CIA to go collect information on the events themselves. Only after CIA finished investigating and presented the facts of the case would DOJ weigh in on whether a crime had been committed.

Four completely redacted pages in the OPR Report explain OPR’s analysis leading up to its recommendation, on PDF 101, that one of the declination decisions in particular–which may well be Rahman’s death, since this passage discusses the declination memo–be reexamined, as well as the others more generally. But the Legal Principles/Bullet Points document (which the OPR Report discusses starting on PDF 106) shows the legal framework CIA used to analyze the killing.

Here’s how Jennifer Koester explained the Legal Principles/Bullet Points document to OPR:

She understood that the Bullet Points were drafted to give the CIA OIG a summary of OLC’s advice to the CIA about the legality of the detention and interrogation program. [Koester] understood that the CIA OIG had indicated to CTC[redacted] that it might evaluate the legality of the program in connection with its investigation, and that the Bullet Points were intended to demonstrate that OLC had already weighed in on the subject.

That is, this was CIA’s own summary of the legal guidelines that governed its interrogation program, the guidelines it would use to analyze the facts on things like Rahman’s death before reporting those facts to DOJ.

The rest of the OPR Report makes it clear that John Yoo and Jennifer Koester were freelancing when they worked on this document with CIA. The document was never signed, nor did it ever appear on OLC stationary. The CIA would eventually claim that, “It was drafted in substantial part by Mr. Yoo and [Koester] and was approved verbatim. It reflects the joint conclusion of the CIA Office of General Counsel and the DoJ Office of Legal Counsel.” But Yoo, when Jack Goldsmith asked him about the document when CIA was trying to use it to avoid criminal referrals coming out of the CIA IG Report, would argue that, “to the extent [the Legal Principles/Bullet Points] may have been used to apply the law to a set of facts, they did not constitute the official views of OLC. Yoo stated that ‘OLC did not generate the Bullet Points, and that, at most, OLC provided summaries of the legal views that were already in other OLC opinions.’”

Whatever the official status of the document, on April 28, 2003, CIA sent Yoo and Koester a document claiming, among other things, that CIA interrogations were exempt from all but two US criminal laws.

The United States is at war with al-Qa’ida. Accordingly, US criminal statutes do not apply to official government actions directed against al-Qa’ida detainees except where those statutes are specifically applicable in the conduct of war or to official actions.

[snip]

CIA interrogations of foreign nationals are not within the “special maritime or territorial jurisdiction” of the United States where the interrogation takes place on foreign territory in buildings that are not owned or leased or under the legal jurisdiction of the US government. [my emphasis]

In what appears to be her response (the typeface of the second version of this document is one used by DOJ, not CIA, and the original fax itself was only 3-pages long), Koester tweaked the description of detainee interrogations as immune from almost all law this way:

CIA interrogations of foreign nationals are not within the “special maritime and territorial jurisdiction of the United States where the interrogation occurs on foreign territory in buildings that are not owned or leased by or under the legal jurisdiction of the U.S. government. The criminal laws applicable to the special maritime and territorial jurisdiction therefore do not apply to such interrogations. Additionally CIA interrogations of foreign nationals are not within the sovereign territory of the United States. Thus, the federal criminal laws that apply within that territory do not apply to these interrogations. The only two federal criminal statutes that might apply to these interrogations are: The War Crimes Statute, 18 USC 2441, the prohibition against torture, 18 USC 2340-2340A. [my emphasis]

Assuming I’m right about the drafting history, Koester appears to have taken out a paragraph claiming certain techniques “and … comparable, approved techniques” violate neither criminal statute nor the Constitution. But that section was put back in the document before June 16, 2003, when CTC faxed the “final legal summary” to Patrick Philbin as a fait accompli after Yoo’s departure. Both the section claiming a set of techniques “and comparable, approved techniques” were authorized, and the paragraph stating that only two laws applied to CIA interrogations, remained in the document when Scott Muller tried to get Jack Goldsmith to “reaffirm” it on March 2, 2004. Presumably, then, Muller had asserted those two claims when he and George Tenet briefed–among others–Dick Cheney, Condi Rice, Alberto Gonzales, and John Ashcroft seven months earlier on July 29, 2003, when the Principals reapproved the program. While Patrick Philbin and Jack Goldsmith disputed the Legal Principles/Bullet Points document, CIA nevertheless claimed that it governed its interrogation program.

In other words, when DOJ learned of Gul Rahman’s death, they told CIA to investigate it and report back. CIA did so and wrote a declination memo that appears to have been used as the basis for DOJ’s own review of the death. But when CIA wrote the memo, it was operating under the claim–one that the Principals had presumably accepted on July 29, 2003–that not only could CIA use the techniques approved for use on Abu Zubadaydah with other detainees, but that the only two laws that governed the use of such techniques were the Torture Statute and the War Crimes Statute.

So there’s a reason why Gul Rahman’s killer wasn’t charged with negligent homicide. The declination memo used to analyze the death worked under the claim that such laws didn’t apply.

In my last post, I showed how the Bybee Two memo, purporting to find each of ten torture techniques used with Abu Zubaydah legal, was a very specific response to John Yoo’s July 13 memo to John Rizzo. The July 13 memo had basically said, “if you consult with experts that tell you techniques won’t cause prolonged mental harm, then it will “negate” any intent you had to use specific acts listed in the torture statute to cause mental pain and suffering.” So, in response, CIA barraged John Yoo and Jennifer Koester with information purportedly showing that waterboarding and sleep deprivation did not cause prolonged mental harm, Yoo and Koester threw it into a memo, and said that as a result those techniques weren’t torture.

But there’s a problem with the gimmick (even aside from the offensiveness of the premise): the timing.

The memo itself bears evidence that the CIA had already used at least some of these techniques by the time they asked for the opinion. And the details we now know surrounding the process make it clear that they didn’t even consult the experts until after they used some of the techniques. Indeed, it appears that one of the studies they claim to have “consulted” was actually an experiment they conducted on Abu Zubaydah himself. That is, they’re citing their own “study” on Abu Zubaydah as their expert advice to prove they didn’t have the intent of causing him prolong mental suffering.

The torturers had already used the techniques before getting approval

Now, there are many reasons to suspect that the torturers used waterboarding (and perhaps mock burial) before August 1. But I can’t prove that. But their single-minded concern about mental suffering–and not physical suffering–dating back at least to July 10, 2002 strongly suggests that they may have already done something to cause AZ prolonged mental suffering. Otherwise, what would explain the imbalance in their focus?

But there are several details in the Bybee Two memo itself that show they had already used some of the techniques on AZ.

Take, for example, my observation of the other day: a draft of Abu Zubaydah’s psychological evaluation noted that “he showed strong signs of sympathetic nervous system arousal (possibly fear) when he experienced the initial ‘hard’ dislocation of expectation intervention following session 63.” [my emphasis] Well, it turns out we have seen that term, “dislocation of expectation” before … in the Bybee Two memo, where Yoo describes the whole point of the ten torture techniques!

As part of this increased pressure phase, Zubaydah will have contact only with a new interrogation specialist, whom he has not met previously, and the Survival, Evasion, Resistance, Escape (“SERE”) training psychologist who has been involved with the interrogations since they began. This phase will likely last no more than several days but could last up to thirty days. In this phase, you would like to employ ten techniques that you believe will dislocate his expectation regarding the treatment he believes he will receive and encourage him to disclose the crucial information mentioned above. [my emphasis]

They knew at this point that AZ had already been subjected to such a condition, even while they were purportedly approving the ten techniques in the future.

More damning, though, are the admissions that they had already subjected him to sleep deprivation. There’s the admission they had subjected him to sleep deprivation in the description of the technique itself.

You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.

Then there’s a more interesting reference, because it shows up in the section on page 8 that regurgitates his psychological evaluation.

During detention, Zubadaydah has manged his mood, remaining at most points “circumspect, calm, controlled, and deliberate.” He has maintained his demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Zubaydah showed signs of sympathetic nervous system arousal (which you think was possibly fear). [my emphasis]

Now, this entire larger section repeats back the content of the psychological evaluation (though the use of the word “confrontational” shows they were citing from the later draft of it), almost all in the same order at the paragraph level as it appears in the evaluation. There is nothing in the unredacted document referring to sleep deprivation. But this entire passage otherwise replicates the paragraph spanning pages 3-4 of the evaluation. Which strongly suggests that the redaction also spanning pages 3-4 includes a discussion of both aggressive interrogations and sleep deprivation.

And as an aside, I find it all the more curious that they orally admitted to using sleep deprivation for 72 hours; how does that add to the admission in the psychological evaluation?

In any case, Yoo spends long sections of this memo trying to make the case that CIA consulted experts on sleep deprivation, so that when they use it in the future, they will do so with the confidence that it won’t cause prolonged mental harm. But that doesn’t do anything to “negate” their intent to cause him harm in the past, when they already had used it.

CIA didn’t consult experts until after they used some of these techniques

And, given the other details we know about the memo writing process, we can date when they consulted experts to construct Section II of the Bybee Two memo. For a number of materials cited in there, we know they received the information after July 24. For example, here’s the OPR Report’s description of Jennifer Koester receiving these materials after July 24.

Over the next few days [after July 24], [redacted] sent [Koester] additional information relating to the proposed interrogation, including a psychological assessment of Abu Zubaydah and a report from CIA psychologists asserting that the use of harsh interrogation techniques in SERE training had resulted in no adverse long-term effects.

[Redacted] also provided additional information about the proposed interrogation program to [Koester]. On July 26, 2002, [redacted] sent [Koester] three memoranda the CIA had obtained from the Oepartment of Defense Jomt Personnel Recovery Agency (JPRA) and the United State’s Air Force. The memoranda, dated July 24 and July 25, 2002, were in response to requests for information from the DOD Office of General Counsel about SERE interrogation techniques. The two JPRA memoranda were in response to a request for information about interrogation techniques used against United States prisoners of war, and the techniques used on students in SERE training. The Air Force memorandum was from a psychologist who served in the Air Force’s SERE traing program. The memorandum discussed the psychological effects of SERE training, noting that the waterboard was 100% effective as an interrogation technique, and that the long-term psychological effects of its use were minimal. [my emphasis]

Even without the dates included in the OPR Report, we know from the SASC report that this information wasn’t even requested until this time frame, and it was hurriedly completed in the days before DOD sent it to CIA who sent it on to DOJ. Thus, while we don’t know the dates of the documents included in the large packet of information sent on July 25 which subsequently disappeared from OLC’s SCIF (!), we know that a number of the reports cited in the Bybee Two memo weren’t even written until late July.

And then there’s the psychological evaluation of AZ. While we don’t have the exact report or reports that OLC received, it appears they were still drafting it on July 24 and 25.

As I showed in my last post, Yoo made great stock of the efforts with which CIA did its due diligence to make sure these techniques wouldn’t cause prolonged mental harm, and based on that he said “you do not meet the specific intent necessary” to torture under the torture statute.

Because you have conducted the due diligence to determine that these procedures, either alone or in combination, do not produce prolonged mental harm, we believe that you do not meet the specific intent necessary to violate Section 2340A.

[snip]

Reliance on this information about Zubaydah and about the effect of the use of these techniques more generally demonstrates the presence of a good faith belief that no prolonged mental harm will result from using these methods in the interrogation of Zubdayah.

But they clearly hadn’t done this due diligence when they used at least some of these techniques. Yoo may think he can use their homework assignment to show that they did not have the specific intent to cause prolonged mental harm on July 26, 2002. But he can’t then claim they didn’t have the specific intent to cause prolonged mental harm in May and June.

They appear to be using their own “study” on Abu Zubaydah as their expertise on sleep deprivation

As I noted in the last post, whereas Yoo cites several actual people in his section on waterboarding (Jerry Ogrisseg is one, plus two people with extensive experience in the SERE program), he doesn’t cite any specific studies in his section on waterboarding.

You have also reviewed the relevant literature and found no empirical data on the effect of these techniques, with the exception of sleep deprivation. With respect to sleep deprivation, you have informed us that it is not uncommon for someone to be deprived of sleep for 72 hours and still perform excellently on visual-spatial motor tasks and short-term memory tests. Although some individuals may experience hallucinations, according to the literature you surveyed, those who experience such psychotic symptoms have almost always had such episodes prior to the sleep deprivation. You have indicated that the studies of lengthy sleep deprivation showed no psychosis, loosening of thoughts, flattening of emotions, delusions, or paranoid ideas. In one case, even after eleven days of deprivation, no psychosis or permanent brain damaged [sic] occurred. In fact, the individual reported feeling almost back to normal after one night’s sleep. Further, based on the experiences with its use in military training (where it is induced for up to 48 hours), you found that rarely, if ever, will the individual suffer harm after the sleep deprivation is discontinued. Instead, the effects remit after a few good nights of sleep. [my emphasis]

Yoo appears to be simply reporting back a bunch of claims CIA made to him, claims which have no names attached to them.

And one of the studies noted–indeed, the study justifying CIA’s proposed limit to keep AZ awake for 11 days–sure looks a lot like what AZ himself explained had already happened.

I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next 2 to 3 weeks.

[snip]

The cell and room were air-conditioned and were very cold. Very loud, shouting type music was constantly playing. It kept repeating about every fifteen minutes twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.

[snip]

I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water in my face.

The shackling to a chair is the description CIA would later use for how they induced sleep deprivation in those who could not stand. Add in the noise, cold temperature, and water flicking, and they were using several means by which to keep AZ awake. And, he claims, this period lasted for two to three weeks. Even assuming he lost track because of disorientation, it’s clear they subjected him to far more than the 72 hours they had claimed to do.

Combine AZ’s own observations with what several people told Jason Leopold.

For example, one current and three former CIA officials said some videotapes showed Zubaydah being sleep deprived for more than two weeks. Contractors hired by the CIA studied how he responded psychologically and physically to being kept awake for that amount of time. By looking at videotapes, they concluded that after the 11th consecutive day of being kept awake Zubaydah started to “severely break down.” So, the torture memo concluded that 11 days of sleep deprivation was legal and did not meet the definition of torture.

That is, according to these sources, the experiments on AZ appear to be the source of the claim that someone could experience sleep deprivation for 11 days. [Update: Though see WO’s point here.] The study on AZ appears to have been key study cited to support their claim that sleep deprivation didn’t cause prolonged mental harm. They used their own study among others in their claims about sleep deprivation.

They used AZ’s own torture as “proof” that it wasn’t torture.

And, if these descriptions are accurate, it means that this early stage sleep deprivation already had caused AZ severe mental suffering.

No wonder the CIA lawyers were worried that the torturers might be found to have specific intent to cause severe mental suffering.

It’s time to read the Bybee Two memo again.

Since the OPR Report came out, we’ve learned the following (some of it was already out there, but I, at least, hadn’t noticed it):

• After his 63rd interrogation session, Abu Zubaydah experienced what his torturers call “hard dislocation”
• An “issue arose” during the interrogation of Abu Zubaydah that two CIA lawyers discussed via email on July 10, 2002
• In the days following CIA lawyers’ discussion of that issue, Criminal Division Chief Michael Chertoff got his own briefing on the torture memo (July 11), followed the next day by a meeting with Alberto Gonzales and probably David Addington (July 12), followed the next day by a larger briefing including Gonzales, Chertoff, John Rizzo and FBI Chief of Staff Daniel Levin that covered both the planned torture techniques and the torture memo (July 13)
• After Chertoff told CIA at that July 13 meeting that he would not issue an advance declination of prosecution for torture, Rizzo asked for and received a memo laying out “the elements of the torture statute;” the July 13 memo focused closely on the definition of intent to cause mental suffering; Yoo’s supervisors John Ashcroft and Jay Bybee claim to be unaware of the memo
• In his cable to AZ’s torture team written after both Bybee Memos were completed, Counterterrorism Center lawyer Jonathan Fredman relied on the language on intent from the July 13 memo, not the Bybee One memo
• Also after the meeting at which Chertoff refused an advance declination, David Addington appears to have directed John Yoo to include several affirmative defenses in the Bybee One memo
• The next draft of the memo–dated July 23 and for the first time addressed to Alberto Gonzales–included the affirmative defenses Addington had asked for as well as language on intent to cause mental harm adopted from the July 13 memo
• In the days following that draft, several things happened to change the approach to torture authorization
• CIA removed mock burial on its list of torture techniques because approving it would hold up the overall memo
• CIA asked for a separate letter addressing specific techniques–what would become the Bybee Two memo
• As part of several packets of information they received from CIA on the long term mental effects of torture, Yoo and Jennifer Koester almost certainly received a draft psychological evaluation noting that AZ had experienced “hard dislocation” after session 63, though we can’t prove that they saw that phrase because the copy of the document they received has been altered before being released in FOIA
• A large packet of information received on the same day as one of the draft psychological evaluations disappeared from the OLC SCIF

All those details make it fairly clear that the Bybee Two memo was designed to respond to the July 13 memo. But they also help to prove that it failed to do what it was intended to do.

How John Yoo told the CIA to “negate” their specific intent to torture

Yoo’s July 13 memo stated that several things were necessary to prosecute torture for the infliction of mental suffering:

• The commission of certain kinds of predicate acts, that included but were not limited to the use of procedures designed to profoundly disrupt the senses and/or the threat of imminent death
• The infliction of prolonged mental harm as a result of those predicate acts
• The specific intent to inflict the severe mental suffering from those predicate acts

But even if someone had the specific intent to commit those predicate acts and prolonged mental harm resulted, Yoo included an escape hatch. He basically said that if a person had conducted studies and based on those studies had concluded that prolonged mental harm would not result, then he could claim to have been operating with a good faith belief that those actions did not cause prolonged mental harm.

Specific intent can be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture. If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions undertaken relying on that advice would have be [sic] undertaken in good faith. Due diligence to meet this standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience.

In other words, to “negate” the specific intent to cause prolonged mental harm that constituted torture, you could do a bunch of study and if that study showed no prolonged mental harm had resulted from these actions in the past, you could then claim that you had no idea that those actions might cause prolonged mental harm in the future, and therefore any deliberate actions that ended up causing prolonged mental harm weren’t really torture.

Abracadabra!!!

As I’ll show below, the Bybee Two memo was designed to show that CIA had done that kind of study. (Note, this is not an original observation; I’m fairly certain both Jeff Kaye and William Ockham have made this observation in the past.) But, as I’ll show in a follow-up post, it fails in what it was designed to do.

One-third of the Bybee Two memo purports to prove that torture doesn’t cause prolonged mental harm

There are two ways the Bybee Two memo demonstrably responds to the terms laid out in the July 13 memo. First, check out the overall structure. There are three parts to the memo, as follows:

I. A “factual” section laying out the proposed treatment of AZ, including descriptions of each of the 10 torture techniques

II. A section describing the steps CIA has taken “to ascertain what effect, if any, these techniques would have on Zubaydah’s mental health”

III. An analysis of the proposed techniques to show that they would not cause severe physical or mental pain or suffering, followed by a section showing that, therefore, the torturers could not be said to have the specific intent to cause severe pain or suffering

Seeing the single-minded focus in the July 13 memo on mental pain and suffering, and then seeing that middle section in the Bybee Two memo is striking both because the recitation of data in it so neatly responds to Yoo’s gimmick for “negating” any risk of having the specific intent to cause prolonged mental suffering, but also for the seeming lack of concern over physical suffering.

The section simply cites a number of purported experts to claim that both SERE training in general and waterboarding and sleep deprivation in particular have not caused long-term mental suffering (though unlike the evidence on waterboarding, which Yoo cites by name, he simply glosses the studies on sleep deprivation, probably because actually looking at studies would have shown that sleep deprivation does cause long-term mental harm). And then the section regurgitates a lot of Abu Zubaydah’s psychological assessment in order to claim him mentally fit to be tortured.

There’s no attempt to cite studies showing that waterboarding and sleep deprivation are physically safe at all. And there’s almost no attention to the question of whether AZ is physical fit to be tortured; the memo does state repeatedly that CIA has said they won’t do anything to exacerbate the wound he suffered during capture, but it describes neither that wound nor his long-standing head injury (at least not in the unredacted sections).

In other words, they seemed certain that the torture techniques they purportedly hadn’t used yet were physically safe, yet very concerned with showing that they had considered whether they were psychologically safe.

Yoo’s efforts to pretend that mock burial, sleep deprivation, and waterboarding don’t amount to intent to cause mental suffering

But it’s not enough for Yoo to simply cite the purportedly expert data showing that sleep deprivation and waterboarding don’t cause long-term mental suffering. He then reviews each of the techniques and for each finds a way to claim that they don’t cause severe physical or mental pain or suffering. His efforts to do so with small box confinement, sleep deprivation, and waterboarding are particularly strained.

Mock burial

Yoo’s challenges start with cramped confinement, given that we now know 1) CIA had threatened AZ with “mock burial” back in May, 2) CIA had asked for mock burial to be approved until just a few days before this memo was started, and 3) both AZ and others involved referred to the small box as a “coffin.”

Not surprisingly, Yoo makes no mention of that “coffin” detail when he dismisses, with absolutely no analysis, the possibility that cramped confinement could be considered a threat of imminent death.

As with the other techniques discussed so far, cramped confinement is not a threat of imminent death.

Nor does he explain, later, why the threat of using the boxes might be particularly effective at inducing fear (remember that according to AZ, his torturers did keep the small box in sight as an implicit reminder of “what [his] interrogators were capable of”).

While additional time spent in the boxes may be threatened, their use is not accompanied by any express threats of severe physical pain or suffering.

Note, in particular, that Yoo here only considers the threat of using these boxes that look like coffins in terms of any physical suffering they might cause.

But then he inexplicably shifts his focus when discussing–and introducing an apparent contradiction–the limits on how long you could be put into the small box.

With respect to the small confinement box, you have informed us that he would spend at most two hours in this box. You have informed us that your purpose in using these boxes is not to interfere with his senses or his personality, but to cause him physical discomfort that will encourage him to disclose critical information. Moreover, your imposition of time limitations on the use of either of the boxes also indicates that the use of these boxes is not designed or calculated to disrupt profoundly the senses or personality. For the larger box, in which he can both stand and sit, he may be placed in this box for up to eighteen hours at a time, while you have informed us that he will never spend more than an hour at a time in the smaller box. These time limits further ensure that no profound disruption of the sense or personality, were it even possible, would result. As such, the use of the confinement boxes does not constitute a procedure calculated to disrupt profoundly the senses or personality. [my emphasis]

What’s particularly interesting about this passage is that Yoo uses time limits to dismiss any possibility that the boxes would be used to profoundly disrupt the senses. But it would seem the time limits placed on use of the small box–so long as you don’t admit that the box looked like a coffin–would only serve to limit physical suffering, because of the increased physical pain of being in what was in fact a fetal position, as compared to the fuller range of movement permitted by the large box. (Never mind that none of the stress positions came with time limits to them!) Yet Yoo uses the time limits to prove the boxes don’t cause sensual deprivation, not physical suffering. The small box shouldn’t cause any more dislocation of the senses than the large box. Yoo’s focus suggests the primary reason why these time limits exist is because they do carry the risk of profound disruption of the senses, a risk heightened by the fact that the small box looks like a coffin.

Sleep deprivation

Then there’s sleep deprivation, which Yoo had already admitted can cause hallucinations. Yoo attempts to dismiss this risk–and therefore the risk that it would satisfy the predicate of profoundly disrupting the senses–by claiming that CIA has informed him that they won’t use sleep deprivation for that long.

Nor could sleep deprivation constitute a procedure calculated to disrupt profoundly the sense, so long as sleep deprivation (as you have informed us is your intent) is used for limited periods, before hallucinations or other profound disruptions of the sense would occur.

[snip]

As we explained above, a disruption within the meanings of the statute is an extreme one, substantially interfering with an individual’s cognitive abilities, for example, inducing hallucinations, or driving him to engage in uncharacteristic self-destructive behavior.

But note very carefully what Yoo has already said about the “limited periods” for which CIA will (again, purportedly in the future) use sleep deprivation.

You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.

Eleven days, as it happens, is the top limit in the studies Yoo cited used to show that sleep deprivation caused no long-term mental harm, and in that case, the study said only that “no psychosis or permanent brain damaged [sic] occurred.” I’ll have a lot more to say on this point in my next post, because Yoo’s claims about sleep deprivation are where this entire scheme falls apart most spectacularly. But even from what Yoo presents internally in his memo, it makes no sense. Yoo has told us the limit anyone can stand is 11 days, and then rewards the CIA for adopting this “limit” by judging that because of that limit, sleep deprivation can’t amount to the kind of profound disruption of the senses that amounts to torture.

Waterboarding

Then, finally, comes Yoo’s biggest challenge, finding a way to claim that the threat of death associated with waterboarding does not amount to the intentional infliction of prolonged mental suffering and therefore torture. Yoo admits right off that waterboarding is a threat of imminent death.

We find that the use of the waterboard constitutes a threat of imminent death. As you have explained the waterboard procedure to us, it creates in the subject the uncontrollable physiological sensation that the subject is drowning.

[snip]

From the vantage point of any reasonable person undergoing this procedure in such circumstances, he would feel as if he is drowning at the very moment of the procedure due to the uncontrollable physiological sensation he is experiencing. Thus, this procedure cannot be viewed as too uncertain to satisfy the imminence requirement. Accordingly, it constitutes a threat of imminent death and fulfills the predicate act requirement under the statute.

This is where the July 13 memo becomes so important to the project. That’s because, as I noted before, the July 13 memo states unreservedly that torture requires both the commission of one of the predicate acts (in this case, threatening imminent death) and infliction of prolonged mental harm. The Bybee One memo admitted that others might think committing one of the predicate acts, by itself, was enough to constitute torture (though Yoo ultimately dismissed that concern).

More importantly, the July 13 memo has offered the gimmick by which someone can refer to a bunch of studies to “negate” any intent to cause prolonged mental harm. And, having fulfilled the first part of that gimmick by laying out studies that find no prolonged mental harm from waterboarding, Yoo now invokes that gimmick repeatedly.

Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged mental harm would result from the use of the waterboard.

[snip]

Based on the information you have provided to us, indicating that no evidence exists that this course of conduct produces any prolonged mental harm, we conclude that a course of conduct using these procedures and culminating in the waterboard would not violate Section 2340A.

[snip]

Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it. Good faith may be established by, among other things, the reliance on the advice of experts.

[snip]

Prolonged mental harm is substantial mental harm of sustained duration, e.g., harm lasting months or even years after the acts were inflicting upon the prisoner. As we indicated above, a good faith belief can negate this element. Accordingly, if an individual conducting the interrogation has a good faith belief that the procedures he will apply, separately or together, would not result in prolonged mental harm, that individual lacks the requisite specific intent. This conclusion concerning specific intent is further bolstered by the due diligence that has been conducted concerning the effects of these interrogation procedures.

[snip]

Because you have conducted the due diligence to determine that these procedures, either alone or in combination, do not produce prolonged mental harm, we believe that you do not meet the specific intent necessary to violate Section 2340A.

[snip]

Reliance on this information about Zubaydah and about the effect of the use of these techniques more generally demonstrates the presence of a good faith belief that no prolonged mental harm will result from using these methods in the interrogation of Zubdayah. Moreover, we think that this represents not only an honest belief but also a reasonable belief based on the information that you have supplied to us. Thus, we believe that the specific intent to inflict prolonged mental [sic] is not present, and consequently, there is no specific intent to inflict prolonged mental pain or suffering. Accordingly, we conclude that on the facts in this case the use of these methods separately or a course of conduct would not violate Section 2340A.

In other words, after having told CIA on July 13 that if they can come up with some studies showing that waterboarding (and sleep deprivation) don’t cause prolonged mental harm, then they can use them as proof that they had no intent to cause AZ prolonged mental harm. Yoo basically says, “you’ve done what I told you to and therefore I judge that you don’t intend to torture Abu Zubaydah.” Very good job, CIA, Yoo seems to be saying, in reward for doing your homework I now give you permission to torture.

It has been a while since we have taken in the Trash and the natives are restless. So, for yer Easter pleasure, we have a special Mummies and Bunnies edition of Trash. The bunnies, well, they are the official mascot of the holiday weekend of course, and they are absolutely necessary to go down the rabbit holes we have been lately in search of some semblance of our Constitutional rule of law. The Mummies, well, they are a relatively new discovery to me and they kind of fit in with the whole buried alive torture thing. Actually, they are officially known as Here Come The Mummies, and they are one kick ass live act. I have included two songs for your listening pleasure, one live and the other from a live set in a Chicago studio for a radio/TeeVee simulcast show. Enjoy.

Now, for the action, we start off with March April Madness Final Four. The first semifinal game pits the Butler Bulldogs against the Mighty Michigan State Spartans. This seems like a mismatch, but don’t sell Butler short, they are a perennial tournament team, well coached by Brad Stevens, who looks baby faced enough to be one of the players, but has put his team in the tournament all three years he has been head coach. The Bulldogs have some stud players too, led by Gordon Hayward and they play tenacious and disciplined team defense. On the other side stands Tom Izzo and the Spartans who were in the Final Four Championship Game last year, losing to Carolina, and are in the Final Four for the sixth time in the last twelve years. Izzo knows how to coach em up and the Spartans have really gelled in the tournament. It is telling that when their star guard, Kalin Lucas, went down with an achilles in the second round, you would think they were done. Nuh uh, and they win close games consistently. This is in Butler’s hometown, Indianapolis, so they have that going for them (Butler plays their home games just down the road in Hinkle Fieldhouse, a National Historic Register listed building and literally the home of Hoosiers, the real life team the movie is based on and the filming location for the movie). The Spartans are favored by a point; I call it a tossup. Thankfully, there is no riot in Michigan yet!

The second game has Huggy Bear’s West Virginia Mountaineers taking on the Dookies. Coach K and Duke are not newbies, although this particular team has never smelled the rarified air of the Final Four. West Virginia has been a top flite program for several years too, dating back to when they had a different coach that those Wolvereenies in Ann Arbor stole (Big Blue takes all of the Mountaineers’ coaches sooner or later apparently). Another solid and close matchup with the Dookies favored by two. I can see that, Duke looks to have too much speed and shooting and should prevail.

Formula One: As Petro noted, this weekend is the Malaysian Grand Prix. Malaysia is famous for the wet, there is always rain during GP week, and this year looks no different. That’s okay as the wet makes for great Grand Prix racing, and they do not wimp out and stop like those overhyped sissies that drive in circles. Actually rain is good, because otherwise Kuala Lumpur is a fast track with a lot of straights and not great overtaking opportunities. Hamilton, Vettel, Button and Schumacher were fast in practice. The first two races were won by former World Champions, Bahrain by Fernando Alonso and Down Under by Jenson Button. Is it time for Schumi to round into winning form? Nobody roots for Lewis Hamilton anymore, in fact the Aussies actually literally called him a dickhead! Gotta love the Oz. Qualifying is Saturday morning at 4 am Eastern and the race goes off Sunday morning 4 am Eastern; both on Speed TV.

My focus on the multiple versions of Abu Zubaydah’s psychological assessment led me to review the CIA OIG Vaughn Declaration from last August, and one document that was withheld caught my eye.

The document strongly suggests that the July 13, 2002 John Yoo fax that appears to have been used as CIA’s general authorization for torture was written in response to a specific issue that had already arisen with Abu Zubaydah.

The Vaughn Index was written in response to ACLU’s FOIA for documents relating to what would have been shown on the 92 destroyed torture tapes. From the descriptions in the Vaughn, it’s clear that most of the documents include things like plans for torture techniques written both before after after Abu Zubaaydah’s torture, plans for black sites, communication about the investigation into detainee treatment (I presume that treatment of al-Nashiri would be included, since his interrogations were also on the destroyed tapes, but not the Salt Pit death of Gul Rahman, which wasn’t taped), and interviews from the investigation.

And though there are a few documents that clearly are efforts to improve on the techniques used against AZ (including pictures), there are relatively few documents in CIA IG custody from the period of AZ’s most intense interrogation. There are:

• “4-pages of handwritten notes, dated April 3, 2002, by a CIA officer regarding the interrogation of Abu Zubaydah.”
• “A 1-page email,” dated April 5, 2002, “with an attached two page cable from a CIA attorney to a CIA officer regarding the interrogation of Abu Zubaydah.”
• A “four page cable from the field to CIA Headquarters,” dated April 11, 2002, containing “information relating to the CIA’s terrorist detention and interrogation program” (note, this was the day Yoo officially started on the Bybee Memo).
• A May 15, 2002 “two page memo from one CIA officer to another CIA officer discussing information, provided by Abu Zubaydah, relating to a classified counter-terrorism operation.”
• A “1-page of handwritten notes dated July 24, 2002 from a CIA officer describing proposed interrogation techniques that could be considered for use on detainees.”
• A “two page cable from the field to CIA Headquarters,” dated August 12, 2002, and “a 6-page cable from the field to CIA Headquarters,” dated August 24, 2002, both containing “information relating to the interrogation of Abu Zubaydah.”

(There’s also a cable listed with the date July 26, 2006, which given its place in the Vaughn Index might actually have been dated July 26, 2002, discussing AZ’s status.) There are also a few documents that pertain to discussions in DC (for example, a Memorandum of Understanding recording CIA’s version of an early meeting on the Bybee Memo).

Then there’s the email that sparked my interest, labeled Email-591, dated July 10, 2002, and classified as Top Secret.

This document is a 2-page email chain between CIA attorneys. The document contains the attorneys’ legal analysis as it relates to a specific issue that arose in the context of the CIA’s counter-terrorism program, which was created in anticipation of litigation.

In other words, on July 10, 2002, two of CIA’s lawyers were discussing something that came up–almost certainly (given the scope of the FOIA response) during Abu Zubaydah’s interrogation–in anticipation of litigation. And three days later, CIA lawyer John Rizzo would attend a meeting at which DOJ Criminal Division head Michael Chertoff refused to give CIA an advance declination for any crimes committed during Abu Zubaydah’s interrogation and FBI Chief of Staff Daniel Levin announced that the FBI would no longer have anything to do with the CIA’s interrogation program. Ostensibly, those responses came partly in response to Rizzo’s description of purportedly proposed torture techniques. Yet after that meeting, Rizzo asked John Yoo for a letter “setting forth the elements of the torture statute.” And the fax Yoo wrote in response–rather than the formal Bybee One opinion–would serve as CIA’s internal guide for the role of intent in the torture statute, particularly the way intent purportedly played into torture having to do with the infliction of several mental suffering.

All of which suggests the torturers did something to inflict severe mental suffering on Abu Zubaydah–one the CIA’s own lawyers recognized might result in litigation–just before July 10, 2002.

Here’s how the plays into the context of the July 13 fax.

July 10, 2002: The first piece of intelligence from Abu Zubaydah–describing the relationship between Khaldan and Derunta training camps and al Qaeda–used in the 9/11 Report.

July 10, 2002: Two CIA attorneys conduct legal analysis via email–in anticipation of litigation–on a specific issue that arose in the context of the CIA’s counter-terrorism program.

July 10, 2002: John Yoo tells Jennifer Koester that they will present the Bybee memo to NSC at 10:45 on July 12 (and names the Bybee Memo the “bad things opinion”!).

July 11, 2002: John Yoo and Jennifer Koester have briefing session with Michael Chertoff on Bybee Memo.

July 11, 2002: An OLC paralegal cite-checks the draft, and someone schedules a July 12 meeting with Alberto Gonzales and a July 13 meeting with (effectively) NSC.

July 12, 2002: First draft of Bybee Memo distributed outside of OLC.

July 12, 2002: John Yoo meets with Alberto Gonzales (and either David Addington or Tim Flanigan) on Bybee Memo.

July 13, 2002: John Yoo and Jennifer Koester present July 12 draft to John Rizzo, John Bellinger, Michael Chertoff, Daniel Levin, and Alberto Gonzales. Rizzo provides overview of interrogation plan. Chertoff refuses to give CIA advance declination of prosecution. Levin states that FBI would not participate in any interrogation using torture techniques, nor would it participate in discussions on the subject.

July 13, 2002: Rizzo asks Yoo for letter “setting forth the elements of the torture statute.”

July 15, 2002: John Yoo faxes John Rizzo July 13 letter on the torture statute.

July 15, 2002: John Yoo sends Jennifer Koester an email telling her to include a footnote in the opinion stating that they had not been asked about affirmative defenses like necessity, self-defense, or commander-in-chief powers.

July 16, 2002: John Yoo and Jennifer Koester meet with Alberto Gonzales and (probably) David Addington and Tim Flanigan. Yoo shared the July 13 fax with them. At the meeting, it is decided that Yoo will include Commander-in-Chief and other affirmative defenses in Bybee Memo.

July 16, 2002: In response to earlier request from Michael Chertoff (perhaps as early as July 13), John Yoo has Jennifer Koester draft, but not send, a letter to CIA refusing a letter of advance declination of prosecution.

July 17, 2002: George Tenet meets with Condi Rice, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

In other words, this entire discussion–including the meeting at which David Addington appears to have told John Yoo to put in affirmative defenses–happened in the wake of this issue that arose, almost certainly in Abu Zubaydah’s torture.

There’s one more item of interest, particularly considering the torturers’ boast that they had inflicted “hard dislocation” on him during his 63rd session which “was one of the few [things] led to him providing significant actionable intelligence.”

The first piece of intelligence based on Abu Zubaydah interrogation cited by the 9/11 Commission (albeit a fairly innocuous piece of intelligence about the Khaldan camp), was dated July 10, 2002. The same day the CIA lawyers were worried about litigation.

It would all make so much sense (though this is a wildarsed guess). They do something that causes AZ severe mental suffering–something amounting to a threat of imminent death, like waterboarding or mock burial. In response to that treatment AZ gives his torturers the first piece of intelligence that actually involves al Qaeda (because, of course, he wasn’t a member of al Qaeda). But the treatment is serious enough that CIA’s lawyers (probably including John Rizzo) start worrying whether it can get the torturers charged with torture. That probably weighed heavily on John Rizzo when, after he presented the “proposed” torture program on July 13, the country’s top prosecutors reacted badly. And so, panicked, he asked John Yoo for a fax laying out how to avoid being charged under the torture statute. And while CIA and OLC danced around for two more weeks preparing a document that made the torture program look palatable enough to sign off on, that wasn’t what CIA would rely on.

There’s just one problem with the timing of this. If you look at the pattern of cables reporting on interrogations, the entire month of July (actually, everything after June 19) consists of a single 2-3 page cable every day (the single exception is July 20, when a 5-page cable is sent). At least judging from the cable traffic, there appears to be no turbulence or extraordinary events during this entire period.

But whether the issue that arose actually happened close to July 10 or happened earlier, it does appear that that issue lay behind the July 13 fax.

Update: Headline changed.

There’s one more really incendiary passage from the government’s response to Abu Zubaydah’s request for more information in his habeas petition (see here, here, and here for more on this document). In response to a request for evidence indicating that Abu Zubaydah had no knowledge of pending terrorist attacks when he was captured in 2002, the government responds that they have not contended, in this proceeding, that he did have such knowledge.

The Government also has not contended in this proceeding that at the time of his capture, Petitioner had knowledge of any specific impending terrorist operations other than his own thwarted plans. Accordingly, there is no reason or basis to compel the Government to search for information indicating that Petitioner had no knowledge of such impending terrorist operations, as Petitioner requests in his Request No. 66.

Now, let’s be clear what this statement is not: it’s not an admission that the government knows AZ didn’t know of any pending terrorist attacks. By limiting their statement to AZ’s habeas petition–to their legal claim at the moment describing why they’re detaining him–they also limit their admission. That is, they may now believe that AZ didn’t know about any further terrorist attacks. Or they may still believe that AZ had knowledge of pending attacks, but can’t use that claim because they either have no untainted evidence to support it or doing so would too quickly rely on AZ’s tortured statements.

So while this is not a full admission that AZ didn’t know of any pending terrorist attacks, it is a pretty good sign that the government either can’t or doesn’t want to defend that claim.

Compare the caution about making such a claim with the claims made in another legal document submitted last year, the very first passage in Jay Bybee’s first response to the OPR report (Bybee submitted this on May 4, 2009, so a full month after the government submitted Abu Zubaydah’s factual return, though there’s no reason to believe Bybee would have known the content of the factual return).

Six months after the September 11,2001 attacks, United States forces captured top al Qaeda leader Abu Zubaydah. Because Zubaydah had assumed the role of chief military planner for al Qaeda, he possessed critical imminent threat information. In particular, the Central Intelligence Agency (“CIA”) determined that Zubaydah had information about a “second wave” of devastating attacks targeting, among other things, the tallest building in Los Angeles.

According to Jay Bybee–the guy who signed off on AZ’s torture–AZ “possessed” critical intelligence. He states this with no caveats.

There’s a reason Bybee still clings to the claim (or clung to it last May–his second response softened this claim somewhat). That’s because the claim that AZ had intelligence on upcoming attacks was the very first assumption OLC laid out in the Bybee Two memo after it stated that if the facts proved to be different, the advice might be different, too.

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. Zubayda 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.

That is, the entire authorization to torture AZ–and therefore the entire authorization for the torture program more generally–depended on the veracity of claims that the CIA would only torture people who, they knew, had intelligence about upcoming attacks.

But, as it turns out, the government won’t make that claim in an environment in which they’d have to provide proof to back up the claim. Somehow, CIA’s certitude (and with it Jay Bybee’s) has become a claim that cannot be supported in a legal proceeding.

This is important not just because it means the entire torture program rests on dubious claims. But because it raises questions about why the CIA was so sure AZ had intelligence about further attacks. Was there, ever, specific intelligence about further attacks, which the CIA just assumed AZ knew about because they totally misunderstood who he was? Did the belief that AZ had knowledge about further attacks come as a result of his torture (or that of Ibn Sheikh al-Libi or Binyam Mohammed or someone else)? Or was it even more tenuous than that, chatter about actual weddings collected in Cheney’s illegal wiretap program that caused them to panic? Or was it simply a desire to sow fear in August 2002, just in time to roll out the new “Iraq War” product after the August recess; so by torturing AZ they could fearmonger about attacks on banks and bridges and subways he had invented to stop the torture?

For some reason, in summer 2002 CIA told DOJ that it was certain that AZ had intelligence about follow-up attacks. We really deserve to know what the basis for their certainty was. Because at this point, the government refuses to make that claim in a forum in which they’d actually have to provide proof to support their certainty.

Whoever wrote Abu Zubaydah’s psychological evaluation claimed to have succeeded in subjecting Abu Zubaydah to “hard” dislocation after his 63rd session of torture. And that claim was made before OLC approved the use of torture with him.

I’ve long been aware that we got two versions of Abu Zubaydah’s psychological evaluation last August: the copy purportedly faxed to John Yoo on July 24, 2002. And the copy faxed to the Inspector General on January 31, 2003 as it began its investigation. I had reviewed them last August and–while I found some weird details I’ll get to in a second–had concluded that they were effectively the same content.

They’re not.

The key difference appears in the top paragraph on the fourth page of the evaluation. The copy purportedly sent to Yoo includes these sentences:

In addition, he showed strong signs of sympathetic nervous system arousal (possibly fear) when he experienced the initial “confrontational” dislocation of expectation [] during an interrogation session. Due to his incredibly strong resolve, expertise in civilian warfare, resistance to interrogation techniques (the latter two which he trained hundreds of others on) this experience was one of the few that led to him providing significant actionable intelligence. [my emphasis]

In the copy sent to the IG the following year, that passage reads this way.

In addition, he showed strong signs of sympathetic nervous system arousal (possibly fear) when he experienced the initial “hard” dislocation of expectation intervention following session 63. Due to his incredibly strong resolve, expertise in civilian warfare, resistance to interrogation techniques (the latter two which he trained hundreds of others on) this experience was one of the few that led to him providing significant actionable intelligence. [my emphasis]

The copy sent to the IG identifies precisely when this dislocation happened–after session 63–and calls it “hard” dislocation rather than “confrontational.”

I’ll leave it to the psychologists in the crowd to explain precisely what they mean by the phrase “dislocation of expectation.” And while we don’t know what numbering system the torturers were using for their torture sessions, if they had daily sessions the 63rd would have come some time in mid-June. Long before this memo was written. Whatever else this detail shows, it shows that the torturers were far down the path of torture before they wrote this assessment and they had already broken Abu Zubaydah.

Now, I said above that the first assessment linked here was “purportedly” sent to John Yoo on July 24. That’s because (as I and I think others have pointed out before) the document provides conflicting dates. The cover sheet is dated July 24. The instruction for Yoo to “call me at work or at home, whenever” reflects some degree of urgency. But the following pages clearly show a fax timestamp from July 25 at 5:02 PM. Unless this was a dateline issue (that is, unless it was sent from Thailand or something), then the copy we’ve got–the one with the session number removed–is a later iteration of the assessment.

Also note that the fax cover sheet of the July 24/25 version says the document includes 7 pages. And indeed, we do get seven pages. But the Bates stamp in the bottom right hand corner are missing a page from the series, 0000001 (in fact, the series seems to be different, given the “T” that appears on the cover sheet). Note, too, the Bates numbers from the top right hand corner, which show someone couldn’t decide whether this was document 71 or document 79 (the number 71 is the number from IG’s FOIA response).

One more interesting detail. Both of these assessments came from CIA’s IG. (Though the second number on the front page of the July 24/25 document bears a number showing it was once in Counterterrorism Center’s legal department.) Thus, even though we know OLC probably got at least two drafts of the assessment (one on July 24 and one on July 25), we haven’t seen the copy they should have in their SCIF.

Oh wait. OLC’s SCIF.

That would be OLC’s leaky SCIF, from which documents have a way of disappearing. In fact, one of the documents we know to have disappeared from OLC’s SCIF bears the date July 25, 2002. The missing document is probably not the same document (the missing document is much longer). But as I’ve said, it’s an awfully suspicious day to be losing documents.