There’s an astounding passage in Bybee’s Second Response to the OPR Report that reveals that Abu Zubaydah’s torturers relied on a July 13, 2002 memo Yoo sent to John Rizzo, rather than the Bybee One Memo, for their general torture authorization.

In a passage attempting to refute OPR’s assertion that the Bybee Memo was written so vaguely it could easily be misinterpreted, Jay Bybee’s lawyer, Maureen Mahoney, examines a set of documents the CIA wrote about torture to show (she claims) that CIA never misinterpreted “OLC’s advice,” including the Bybee One Memo. It’s clear that the documents she refers to include at least CIA’s own Interrogation Guidelines, the Bullet Points written to summarize OLC’s advice, the declination memo the Counterterrorism Center wrote in the Salt Pit killing, and a memo Jonathan Fredman, CTC’s top lawyer, wrote to the Abu Zubaydah interrogation team.

Here’s how she describes the Fredman memo:

In addition, the documents OPR uses to reveal the CIA’s understanding of the standards in the Bybee Memo (e.g., Report at 65-66) do not suggest there was any misinterpretation going on. As shown in subsequent sections, these documents (which Bybee never wrote or saw) were actually correct statements of the law. [Redacted] memo to the Abu Zubaydah interrogation team, for instance, which quoted from Yoo’s July 13, 2002 fax to Rizzo, provided a correct summary of the specific intent element. Report at 66; infra Section N.A. It is correct, as Yoo wrote, that 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.” Report at 48; infra Section IV.A. [PDF 32; my emphasis]

We know this memo was from Jonathan Fredman, because Mahoney refers to it again on the next page, and in that reference, the name “Fredman” is not redacted.

As this passage makes clear, Fredman wrote a memo to the Abu Zubaydah torture team including an analysis of how intent plays into Torture Statute. Now, the passage of the OPR Report that discusses this memo (document pages 65-66; PDF pages 71-72) is entirely redacted. But it appears after discussion of the finalization of the Bybee Memo on August 1, 2002, suggesting Fredman’s memo was sent after that date. Indeed, the first passage after the long redacted section refers to “a cable [] sent out last week, following the issuance of the opinions,” which would seem to be a reference to Fredman’s memo. In other words, the memo appears to post-date the Bybee One memo.

Nevertheless, the memo doesn’t refer to the Bybee One Memo for its discussion of intent. Rather, it refers to the July 13, 2002 memo that John Yoo faxed John Rizzo. While we can’t prove it with the redactions, it appears that Fredman made a conscious decision not to refer to the finished, official OLC memo, but instead referred to the more informal fax Yoo had sent earlier in the month.

There are several reasons why Fredman might have relied on the earlier fax rather than the finished opinion. The fax is much more succinct, relying exclusively on intent. At a minimum, the brevity makes for easier citation.

But there is also a different emphasis in the earlier fax. Fully one third of that fax deals with what it takes to be guilty of having specific intent to inflict severe mental pain or suffering. The fax concludes that,

Moreover, to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose, of causing prolonged mental harm in order for the use of any predicate acts to constitute torture.

Whereas the Bybee One Memo admits that it may not be that simple.

It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute.

Given that the torture team’s interrogation plan included waterboarding and once included mock burial, Yoo knew that the “threat of imminent death” was not just a hypothetical example, but was the plan. One of his memos excuses such threats entirely, whereas the second one caveats his excuse. Fredman chose to cite from the fax that excused such threats entirely. And that language, notably, is precisely the language Mahoney cites, claiming that Yoo interpreted the statute correctly, even though Yoo himself would go on the caveat that interpretation just weeks later.

But there’s an even simpler reason why Fredman would cite from the July 13 fax rather than the August 1 Bybee Memo in his cable to the torture team. We don’t know when the torturers started waterboarding or whether they used mock burial with Abu Zubaydah. AZ himself said it started two and a half to three months after he arrived in the black site in Thailand which–even accounting for some disorientation he had from the torture–would probably put it before August 1. And we know that Condi gave the go-ahead for torture on July 17–provided OLC had approved it, which arguably the July 13 fax already had.

In other words, there’s a great deal of evidence to suggest that the torture started before Bybee signed the August 1 memo. In all likelihood, the torturers had already threatened AZ with imminent death. And if you’re Jonathan Fredman trying to provide reassurance to torturers in the field that they won’t go to jail for their threats of death with Abu Zubaydah, you might cite the earlier “authorization” from OLC to do so.

All this time, we’ve been arguing over whether the Bybee One Memo could have legally excused the torture of Abu Zubaydah. But the question is moot! Because the torturers weren’t relying on the Bybee One Memo. They were relying on a one page fax sent several weeks earlier.

At Mary’s instigation, I went back to look at Ibn Sheikh al-Libi’s description of how he was shoved into a coffin-like box in Egypt. (Thanks to burnt for the searchable copy.)

According to al-Libi, the foreign government service [redacted] “stated that the next topic was al-Qa’ida’s connections with Iraq. … This was a subject about which he said he knew nothing and had difficulty even coming up with a story.” Al-Libi indicated that his interrogators did not like his responses and then “placed him in a small box approximately 50cm x 50cm.” He claimed he was held in the box for approximately 17 hours. When he was let out of the box, alLibi claims that he was given a last opportunity to “tell the truth.” When al-Libi did not satisfy the interrogator, al-Libi claimed that “he was knocked over with an arm thrust across his chest and he fell on his back.” Al-Libi told CIA debriefers that he then “was punched for 15 minutes.”216

(U) Al-Libi told debriefers that “after the beating,” he was again asked about the connection with Iraq and this time he came up with a story that three al-Qa’ida members went to Iraq to learn about nuclear weapons. Al-Libi said that he used the names of real individuals associated with al-Qa’ida so that he could remember the details of his fabricated story and make it more believable to the foreign intelligence service. Al-Libi noted that “this pleased his [foreign] interrogators, who directed that al-Libi be taken back to a big room, vice the 50 square centimeter box and given food.”217

That mock burial–and al-Libi’s subsequent lies about Iraqi ties with al Qaeda–happened sometime before February 22, 2002, when a DIA cable challenged the report.

This is the first report from Ibn al-Shaykh [al-Libi] in which he claims Iraq assisted al-Qa’ida’s CBRN efforts. However, he lacks specific details on the Iraqi’s involvement, the CBRN materials associated with the assistance, and the location where the training occurred. It is possible he does not know any further details; it is more likely this individual is intentionally misleading the debriefers. Ibn al-Shaykh has been undergoing debriefs for several weeks and may be describing scenarios to the debriefers that he knows will retain their interest. Saddam’s regime is intensely secular and is wary of Islamic revolutionary movements. Moreover, Baghdad is unlikely to provide assistance to a group it cannot control

Al-Libi was, you’ll recall, the onsite manager of the Khalden training camp, a camp that trained a range of Muslims, a policy that  put it at odds with Osama bin Laden, who wanted training to be limited to al Qaeda operatives.

Just over a month after al-Libi claimed, having been shoved in a coffin for almost a day, there were ties between al Qaeda and Iraq, the US captured al-Libi’s associate, Abu Zubaydah, who handled logistics for Khalden. Rather than send Abu Zubaydah off to the Egyptians, as the US had done with al-Libi, they instead sent Abu Zubaydah to a CIA run black site in Thailand.

And there, less than three months after the Egyptians shoved Ibn Sheikh al-Libi in a coffin overnight, James Mitchell threatened to do the same with Abu Zubaydah. Ali Soufan objected and told Mitchell doing so was torture. Soufan left the black site and alerted DOJ of what Mitchell had intended to do.

And then, some time later (Abu Zubaydah says it was about 3 months after his surgery, so perhaps mid-July) they did shove Abu Zubaydah in that coffin-like box. Here’s Abu Zubaydah’s description of being placed in a similar coffin-like box.

Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow. Measuring perhaps in area 1M X 0.75m and 2 m in height. The other was shorter, perhaps only 1m in height.

[snip]

After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough to even sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box, I think I may have slept or maybe fainted.

I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe.

[snip]

[describing how things got better] The tall box was removed, but the short one remained in the room outside my cell, I think as a deliberate reminder as to what my interrogators were capable of.

It’s unclear whether this treatment occurred before or after John Yoo finished his memo authorizing torture. Both would be equally damning, as the suggestion that this box was a coffin would put its use in the category of mock burial. Roughly around July 24, John Yoo told CIA’s John Rizzo that approving mock burial would take some time to do. Yoo would later tell OPR that he considered mock burial to be torture.

There is, however, one more irony. On July 31, 2002, the DIA sent out a second cable challenging the false confession al-Libi had made in late February.

It is plausible al-Qa’ida attempted to obtain CB assistance from Iraq and Ibn al-Shaykh is sufficiently senior to have access to such sensitive information. However, Ibn al-Shaykh’s information lacks details concerning the individual Iraqis involved, the specific CB materials associated with the assistance and the location where the alleged training occurred. The information is also second hand, and not derived from Ibn al-Shaykh’s personal experience.

Just past noon on that day, Jennifer Koester sent Patrick Philbin an email alerting him that the White House wanted them to finish the memos authorizing Abu Zubaydah’s torture by close of business the next day.

“John wanted me to let you know that the White House wants both memos signed and out by COB tomorrow,”

Those memos would either retroactively or prospectively authorize Abu Zubaydah to be exposed to the same kind of treatment Ibn Sheikh al-Libi had undergone five months earlier.

The AP is previewing what Eric Holder will announce later today regarding where various Gitmo detainees will be tried. It reports that KSM–and the other four people charged with him as 9/11 conspirators–will be tried in civilian court in NY.

Rahim al-Nashiri will be tried in a military commission–though it’s not clear where he’ll be tried.

The AP makes no mention of where Abu Zubaydah will be tried. The AP also made no mention of Mohammed al-Qahtani, who is alleged to be the 20th 9/11 hijacker.

While I’m glad a trial of KSM will demonstrate that our criminal system can deal with the worst of the worst, it’s the treatment of the others–al-Nashiri, Abu Zubaydah, and al-Qahtani–that will truly demonstrate the strength or failures of our legal system. KSM, after all, has said he wants to be executed; KSM freely boasts of his role in 9/11. That’ll make it easier to avoid discussing his brutal torture.

But what do you do with someone like Abu Zubaydah, who is probably not fit for trial, whose diaries (which the government still won’t give him) would prove he was tortured, and who wasn’t who they said he was when they waterboarded him 83 times?

Update: In what is surely directly related news, Greg Craig will announce his resignation today. This suggests Craig disagrees substantially with some part of this plan. Given that Craig was one of those who wanted accountability for torture, that suggests he may see some of these choices as designed to hide the evidence of torture.

One of the things we got in yesterday’s document dump is the psychological profile which John Yoo used to assert that Abu Zubaydah was fit to be tortured. There are four key details of it:

The Date

This document was faxed to John Yoo on July 25, 2002 at 5:04 PM (it was dated July 24), the day after OLC verbally authorized a number of the torture techniques used on Abu Zubaydah. But of course, they had already subjected him to two months of enhanced treatment–we know, for example, that they at least threatened to use the confinement box with him in May.

Which raises several questions. First, did they do any psychological profile before they first subjected him to sleep deprivation and isolation and confinement? Or did they just do one when OLC needed it to pretty  up the OLC opinion authorizing torture?

Also, how much of what it records is itself a reflection of this earlier torture? For example, when they cite Zubaydah admitting he lies,

He said, "I lie, lie, lie, lie, lie, lie, and lie."

Was he referring to something he did before he was captured–or after? Were they taking his retraction of things he said under coercion as proof that he was more generally a liar? (The context suggests it was before, but I’m not sure I buy that.)

No Apparent Mention of Abu Zubaydah’s Head Injury

There are two complete paragraphs redacted and significant other redactions here, so it may be they’ve redacted all discussion of whether a prior, serious head injury ought to preclude someone from torture. But in what is unredacted, there is no mention of his head injury. So, for example, the section on "Emotional/Mental Status/Coping Skills" starts with this claim:

Overall, subject’s background as revealed by self-report (including diaries and interview) does not indicate that he has a history of mood disturbance or other psychiatric pathology. Indeed, his reported and known history indicates that he is remarkably resiliant and confident that he can overcome adversity. During the occasions that he experiences increased stress and/or low mood, he may become somewhat more withdrawn, melancholy, and reflective. However, the shift in mood will likely last a relatively short time. He denies and there is no evidence in his reported history of thought disorder or enduring mood or mental health problems.

Keep in mind, if this assessment was done in July, then the "somewhat more withdrawn" periods mentioned refer to his response to prior abuse!! We know that twice, after Mitchell took control of his interrogation and subjected him to abuse, he stopped talking. But this is how the failure of past abuse got translated into his profile for OLC.

The Claims that Abu Zubaydah Devised Al-Qaeda’s Resistance Strategies

Given the centrality of the Al Qaeda resistance manual used as cover for Mitchell and Jessen’s reverse engineering of SERE techniques, I find the mention of Abu Zubaydah’s alleged role in writing the Al Qaeda manual telling.

Alleged to have written al-Qa’ida’s manual on resistance techniques and lectured on the topic.

[snip]

He has talked with Ayman al-Zawahiri and it is likely that Zawahiri talked about his experience as a captive of the Egyptians and Russians. In addition, subject is familiar and probably well versed regarding al-Qa’ida’s detentions and resistance training materials. Thus, one would expect that subject would draw upon this fund of knowledge as he attempts to cope with his own detention.

They had to include this bit, of course, because it’s precisely the logic they used to rationalize torturing him. Pointing to his knowledge of Egyptian and, more importantly, Russian torture provides the perfect excuse to use reverse-engineered techniques based on Russian torture. Never mind that this information is all speculative.

And, incidentally, this appears to have gotten into the 9/11 Report.

Abu Zubaydah’s Diaries

The profile also includes details that almost certainly come from a translation of Abu Zubaydah’s diaries that his defense attorneys now challenge. Whereas Zubaydah claimed in his CSRT that he opposed attacks on civilians and 9/11.

I can’t remember exactly what you talk about in my diary. I know exactly what I wrote. — writ wrote [asks for correction from Linguist] –One part I do remember, I write against eleven September.

[snip]

They killing of our child so we not care to killing their child; it’s not allowed in Islam. I have it exactly, if you read my diary nice, you will understand my idea nice.

The profile states, 

He conceded that he still wrestles with issues regarding the killing of civilians and how to determine who is "innocent." [redaction] He acknowledged that he celebrated the destruction of the World Trade Center.

Now, if the government would just give Abu Zubaydah this section of his diary–or at least have a neutral translator translate this section of it–we might be able to see whether these allegations, used in the profile to prove that Abu Zubaydah had directly supported 9/11, were completely fabricated. But the government refuses to give Abu Zubaydah his diaries. 

Which might suggest how confident they are in this psychological profile.

As MadDog pointed out, the latest redactions of the CSRT transcripts are up at ACLU.

Transcript of Khalid Sheikh Muhammad’s CSRT (27 page PDF).

Transcript of Al Nashiri’s CSRT (39 page PDF).

Transcript of Abu Zubaydah’s CSRT (30 page PDF)

Transcript of Majid Khan’s CSRT (50 page PDF)

I say "latest redactions" because they really haven’t declassified that much–just single lines here and there.

The biggest piece of news, IMO, is Rahim al-Nashiri’s description of his swollen nerves.

Before I was arrested I used to be able to run about ten kilometers. Now, I cannot walk for more than ten minutes. My nerves are now swollen in my body. Swollen too.

We’ve been trying to understand why they only waterboarded al-Nashiri twice–and don’t claim it worked with him. These swollen nerves may be a clue. They don’t t rule out that he suffered other problems–such as a tracheotomy pursuant to some accident during waterboarding–but it does explain one effect his torture had on him.

Otherwise, the biggest news is that our government is now willing to admit they have admitted to being totally wrong about who Abu Zubaydah was.

They told me sorry we discover that you are not number three, not a partner even not a fighter.

Golly. If only they had read his diary or asked Noor al-Deen, they could have figured that out without waterboarding him 83 times.

If nothing else, though, the re-release of these may get more people to read them. They are fascinating and nauseating narratives, all four of them, so if you haven’t already read one or more of them, please take a look.

[Updated and changed time stamp]

Sheldon Whitehouse gave a barnburner of a speech last night, in which he described how egregious Dick Cheney’s lies about torture have been.

The speech goes further than President Obama’s and Russ Feingold’s and Carl Levin’s calls on Cheney’s lies in two ways. First, those other calls focused on whether the documents Cheney wants declassified actually say what he claims they say; Whitehouse focused on whether Cheney’s more basic claims about torture are true. And second, Whitehouse here focuses not on whether we needed waterboarding to get intelligence (Obama, for example, said, "the public reports and the public justifications for these techniques — which is that we got information from these individuals that were subjected to these techniques — doesn’t answer the core question, which is:  Could we have gotten that same information without resorting to these techniques?), but whether we actually got any useful intelligence from the methods at all. 

Whitehouse says that no further actionable intelligence was gained through the torture used on Abu Zubaydah after he was turned over to the CIA contractors for good. [Note: this transcript is my own–I found the Congressional Record copy after I did this. I’ve edited in response to Andersonblogs’ comment to take out ellipses and put in emphasis.]

So for a third time he was returned to the FBI and CIA agents, again for professional interrogation, but by now he had been so compromised by the techniques that were applied to him that even they were unsuccessful in getting further information. And as best as I have been able to determine, for the remaining sessions of 83 waterboardings that have been disclosed as being associated with his interrogation, no further actionable intelligence was obtained. And yet the story has been exactly the opposite. The story over and over has been that once you get these guys out of the hands of the FBI and military "amateurs" and into the hands of these "trained CIA professionals" who can use these tougher techniques, that’s when you get the information. In this case at least, the exact opposite was the truth. And this was a case cited by the Vice President by name. 

From that, Whitehouse makes appeals to his colleagues not to believe they’ve been told, just as Bob Graham appealed to his colleagues not to believe what they’d been told about the Iraq intelligence.

I want my colleagues and the American public to know that, measured against the information I’ve been able to gain access to, the story-line that we have been led to believe, the story-line about waterboarding that we have been sold, is false in every one of its dimensions, and I ask that my colleagues be patient and be prepared to listen to the evidence when all is said and done before they wrap themselves in that storyline.

One more point about this. Whitehouse (and Feingold, and possibly Levin) are speaking as people who have been involved in SSCI’s apparently meticulous review both of what was done to these detainees and what intelligence we got from that torture. Whitehouse’s statement–his list of the kinds of questions the SSCI is asking and his description of the difficulties Senators have in declassifying important information–suggest these views come at least partly out of that SSCI review.

At the heart of all these falsehoods lies a particular and specific problem: The "declassifiers” in the U.S. Government are all in the executive branch. No Senator can declassify, and the procedure for the Senate as an institution to declassify something is so cumbersome that it has never been used. Certain executive branch officials, on the other hand, are at liberty to divulge classified information. When it comes out of their mouth, it is declassified because they are declassified. Its very utterance by those requisite officials is a declassification. What an institutional advantage. The executive branch can use, and has used, that one-sided advantage to spread assertions that either aren’t true at all or may be technically true but only on a strained, narrow interpretation that is omitted, leaving a false impression, or that sometimes simply supports one side of an argument that has two sides–but the other side is one they don’t want to face
up to and don’t declassify.

This suggests Whitehouse has learned something, probably in that SSCI review, that totally debunks the claims that the Bush Administration made, but which he is prevented from revealing.

It sort of makes you wonder–particularly with his statement that he hopes and believes Obama will be better–whether this speech wasn’t designed to pressure Obama to make this information available now?

Update: thanks to RH, here’s the full speech via CSPAN:

I increasingly suspect that the torture index provided to ACLU may better pinpoint the day when Abu Zubaydah’s torture began. Here are they key datapoints.

April 13, 2002: CIA starts taping Abu Zubaydah interrogations.

April 16, 2002: Bruce Jessen circulates draft exploitation plan to JPRA Commander.

April 2002: CIA OGC lawyers begin conversations with John Bellinger and John Yoo/Jay Bybee on proposed interrogation plan for Abu Zubaydah. Bellinger briefed Condi, Hadley, and Gonzales, as well as Ashcroft and Chertoff.

May 6, 2002: Interrogators send 28-page cable to HQ.

Mid-May 2002: CIA OGC lawyers meet with Ashcroft, Condi, Hadley, Bellinger, and Gonzales to discuss alternative interrogation methods, including waterboarding.

Mid to late May, 2002: Ali Soufan leaves Thailand after contractors threaten to confine Abu Zubaydah in small box.

May 28, 2002: CIA HQ sends 4 page cable to interrogators in Thailand.

Early June, 2002: Soufan’s partner, Steve Gaudin, leaves Thailand.

July 13, 2002: CIA OGC (Rizzo?) meets with Bellinger, Yoo, Chertoff, Daniel Levin, and Gonzales for overview of interrogation plan.

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

It appears that, as MadDog suggested, that that May 28, 2002 cable may have been the written approval for contractor James Mitchell to start using the harsher forms of torture.

Here’s what I think happened.

First, it’s clear that Mitchell’s partner, Bruce Jessen, started circulating his exploitation plan at about the same time Mitchell took over the interrogation of AZ.  It’s equally clear that CIA’s counsel (presumably John Rizzo) started working with OLC (presumably Yoo) on formulating legal advice at about the same time. So in mid-April, you’ve already got the intent to use SERE techniques in interrogation.

Ari Shapiro described a process by which Mitchell wrote cables every night to get the next day’s torture approved by Alberto Gonzales.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

But a 28 pages would cover far more than the next day (the other cables are generally 2 to 5 pages long). So I suspect Mitchell wrote in requesting a whole range of torture techniques. And this would be roughly in the time frame of when, according to Ali Soufan, Mitchell’s team took over AZ’s interrogation for good, after some back and forth with the FBI being more involved.

So Mitchell sends his 28-page cable, CIA briefs Condi and others on the techniques they want to use–including waterboarding. And at the end of May, a 4-page cable comes back to Mitchell in Thailand.

Either just before or just after, the interrogators bring out the small box for Zubaydah, and Soufan leaves. (I’m inclined to believe that Soufan left later than the mid-May described by the DOJ IG report, which suggests he may well have left after that 4-page cable came back, which would mean the appearance of the small box was a response to the cable.)

Of course, if CIA HQ had an approval of significant torture methods by May 28, it means all the rest–the two months of negotiations with OLC to get an opinion approving torture–were just kabuki. But that’s what one of Shapiro’s sources is beginning to wonder.

"I can’t believe the CIA would have settled for a piece of paper from the counsel to the president," says one former government official familiar with those discussions.

"If that were true," says the former official, "then the whole legal and policy review process from April through August would have been a complete charade."

Consider this. CIA went to Congress after it had tortured and basically said it hadn’t started the torture yet and implied, then, that it was giving prospective notice. Is it possible that the negotiations with Condi and Bellinger were similar? After all, we have reason to believe Cheney and friends lied to Condi’s people much later in the debate, about what approval this had in Congress (as they intended to lie to John Ashcroft in the hospital room on March 10, 2004). Is it possible that when Bellinger and Condi asked for an OLC opinion, the CIA’s torturers were already hard at work, and it’s only because Bellinger asked for an opinion that they even bothered? If Gonzales was relaying daily approvals for torture directly to the torturers in the field, then why would it appear that Condi was the one who "approved" the program in mid-July? Why not Gonzales?

Obviously none of this should be surprising. But the May 28 document may well indicate whether or not the kabuki was kabuki even for some within the Administration.

When Abu Zubaydah had his Combat Status Review Tribunal hearing on March 27, 2007, the President of the tribunal admitted that the government could not or would not produce key volumes of Abu Zubaydah’s diaries in preparation for the hearing.

From the evidence request I received, again, from your Personal Representative, you believe the statements in the Summary of Evidence document that you provided that–excuse me, that you were provided are a misrepresentation of what you actually wrote in your diary. I reviewed the Summary of Evidence document and noted that there were at least three items listed which specifically cited your diary as the source of the information. Each of these items referenced operational plans and actions which were associated with enemy forces of particular interest to the Tribunal. It would be helpful for the Tribunal to review the source document of these statements and hear your representation of what you wrote in your diary. I therefore found your diary request relevant. On February 22nd, I ordered the production of your diary. As of today, the government has produced portions of your diary. These have been provided to your Personal Representative to prepare for the Tribunal’s hearing today. I understand your statements provided today or the evidence previously provided will refer and provide us some of those diary entries for us to consider. I do need to address one additional matter regarding your diary. There are two volumes of your diary in U.S. Government custody: volumes five and six. The government has made a diligent effort to produce those volumes for us today but–; however, they have not been located. So they are not available for us during this hearing. I therefore find that the volumes five and six are not available for us during this hearing. Given this situation, the Tribunal will consider your statements if you wish to make any, of what you believe the diary entries represent.

According to Abu Zubaydah, one thing included in the parts of the diary not turned over includes a condemnation of 9/11 and of the killing of innocent children, which violates the tenets of Islam.

I can’t remember exactly what you talk about in my diary. I know exactly what I wrote. — writ wrote [asks for correction from Linguist] –One part I do remember, I write against eleven September.

[snip]

They killing of our child so we not care to killing their child; it’s not allowed in Islam. I have it exactly, if you read my diary nice, you will understand my idea nice.

Since two years and one Presidential election have passed since that CSRT, and since we’ve been talking about evidence the CIA destroyed, I thought I’d check to see whether those diary sections still haven’t been turned over. Not only haven’t they been turned over, but neither have key parts of AZ’s diary that would describe the torture he underwent at the hands of the CIA’s contractors (as well as some drawings, the description of which has been redacted). 

In January, AZ’s lawyers moved to get a range of evidence from the government, include volumes 5 and 6 (described above),  but also volumes 7 though 9, written while in CIA custody.

Long after his 1992 [head] injury, once Petitioner had recovered the ability to speak and write, he began to keep a diary. It is his memory. Without it, he is lost. 

To date, Petitioner has completed eleven volumes of his diary, each written in a slender, bound notebook. He currently is writing volume 12. He wrote the first six volumes before his March 2002 arrest. Volumes 7 through 9 were drafted while Petitioner was in CIA custody. Volumes 10 and 11 were completed in DoD custody at Guatanamo, after September 2006; only these last two volumes, written after Petitioner was transferred from CIA to DoD custody, were given to counsel in late 2008 by Petitioner because they were in his possession. At the present time, Petitioner has access to volumes 1 – 4 in his cell, and the Government and CIA are wrongfully denying Petitioner access to volumes 5 – 9, which, arguably, are most relevant to issues that are likely to arise before this Court in connection with Petitioner’s defense. Volumes 5 and 6 were drafted before Petitioner’s arrest and date most closely to the time of his arrest. They are critically important to show what Petitioner was doing during this time frame and contain exculpatory evidence. For example, volumes 7 – 9 were drafted while petitioner was in CIA custody and recount his torture and damaging exculpatory admissions made by Petitioner’s torturers and other CIA officials. [my emphasis]

The filing goes on to note that:

• English translations of his diary were quoted in his CSRT; AZ maintains the translations are inaccurate, but the government has not turned over those translations
• CIA operatives interrogated AZ about his diaries
• The government had allowed AZ to keep his diaries–until he got put in Gitmo (for what looks like a second time), when they were taken away from him
• The military has no objection to giving AZ his diaries, but CIA has refused to turn them over

The whole filing is worth reading for the Kafkaesque situation it describes, in which AZ, whose memory is described to be completely dysfunctional, has been refused the sole record he has of the events of which he has been accused, even though at least three of those accusations come directly from his diary.

And of course, as with the torture tapes, the CIA refuses to make available the evidence of what they did to AZ. 

As Marcy noted back on April 29th, the issue of Nancy Pelosi’s briefing back in 2002 on the Bush/Cheney torture program, whether or not it was being applied to Abu Zubaydah and, if so, to what extent, has really turned into a he said-she said game. (See also here regarding the Porter Goss offensive against Pelosi and Harman).

So, it should not come as any surprise that yet another missive has been launched in this little passion play. Today’s strike comes courtesy of Rick Klein at ABC News:

ABC News’ Rick Klein reports: House Speaker Nancy Pelosi was briefed on the use of “enhanced interrogation techniques” on terrorist suspect Abu Zubaydah in September 2002, according to a report prepared by the Director of National Intelligence’s office and obtained by ABC News.

The report, submitted to the Senate Intelligence Committee and other Capitol Hill officials Wednesday, appears to contradict Pelosi’s statement last month that she was never told about the use of waterboarding or other special interrogation tactics. Instead, she has said, she was told only that the Bush administration had legal opinions that would have supported the use of such techniques.

MadDog has slithered into the depths of Human Events.com to find what they claim is "the report". He has also given us a hand glossary for the abbreviations. The Washington Post seems to think it is "the report" as well, for what it is worth:

In a 10-page memo outlining an almost seven-year history of classified briefings, intelligence officials said that Pelosi and then-Rep. Porter J. Goss (R-Fla.) were the first two members of Congress briefed on the tactics. Then the ranking member and chairman of the House intelligence committee, respectively, Pelosi and Goss were briefed Sept. 4, 2002, one week before the anniversary of the terrorist attacks of Sept. 11, 2001.

Pelosi has already, of course, issued a denial through a spokesman. More he said-she said. Quite frankly, without more, today’s play should be taken with a grain of salt. Multiple major news organizations have this hot off the press info right after Congress receives it and right wing hit rag Human Events (Jed Babbin) is pitching it as a slam on Pelosi. How very convenient. As further evidence of the need for grains of salt listen to Leon Panetta in his own cover letter transmitted with "the report":

“This letter presents the most thorough information we have on dates, locations, and names of all Members of Congress who were briefed by the CIA on enhanced interrogation techniques. This information, however, is drawn from the past files of the CIA and represents [memorandums for the record] completed at the time and notes that summarized the best recollections of those individuals. In the end, you and the Committee will have to determine whether this information is an accurate summary of what actually happened. We can make the MFRs available at CIA for staff review.” (Emphasis added)

As should be crystal clear by now, "those individuals" that worked on the "past files of the CIA" "at the time" were not necessarily the most even handed and/or disinterested arbiters of the truth. The CIA has a big bone in this fight, and it rests completely in implicating Pelosi, Harman and other members of Congress in their bad acts.

I think Spencer and I are just going to keep tag-teaming the torture memos.

He writes about something I’ve been thinking: to what degree was James Mitchell, almost certainly the contractor involved in making the case that they needed to use torture to get information out of Abu Zubaydah, making that case so he could win a hefty contract?

But is it too cynical to suggest that Mitchell also had an interest in saying that Soufan and the FBI’s (and apparently, in part, CIA’s) non-brutal techniques failed? From page 24 of the Senate Armed Services Committee report:

Subsequent from his retirement from DoD [the Department of Defense], Dr. Jessen joined Dr. Mitchell and other former JPRA [Joint Personnel Recovery Agency, which oversees SERE] officials to form a company called Mitchell Jessen & Associates. Mitchell Jessen & Associates is co-owned by seven individuals, six of whom either worked for JPRA or one of the service SERE schools as employees and/or contractors. As of July 2007, the company had between 55 and 60 employees, several of whom were former JPRA employees.

Science may be science, but money is money.

But Mitchell may have done more than certify that the only way to get Abu Zubaydah to speak was to waterboard him. He may have been the guy who did the psychological profile that found him fit to be waterboarded.

The May 30, 2005 memo attributes an incredibly chilling comment, acknowledging that waterboarding exceeded the guidelines laid out in the 2002 OLC memo, to a "psychologist/interrogator."

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]

Is this "psychologist/interrogator" the person who supplied the dubious profile (the one disputed by FBI people) that Bybee used to determine that Abu Zubaydah was fit to be waterboarded?

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods. Through reading his diaries and interviewing him, you have found no history of "mood disturbance or other psychiatric pathology[,]" "thought disorder[,] … enduring mood or mental health problems." He is in fact "remarkably resilient and confident that he can overcome adversity." When he encounters stress or low mood, this appears to last only for a short time. He deals with stress by assessing its source, evaluating the coping resources available to him, and then taking action. Your assessment notes that he is "generally self-sufficient and relies on his understanding and application of religious and psychological principles, intelligence and discipline to avoid and overcome problems." Moreover, you have found that he has a "reliable and durable support system" in his faith, "the blessings of religious leaders, and camaraderie of like-minded mujahedin brothers." During detention, Zubaydah has managed his mood, remaining at most points "circumspect, calm, controlled., and deliberate." He has maintained this 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. Although this incident led him to disclose intelligence information, he was able to quickly regain his composure, his air of confidence, and his "strong resolve" not to reveal any information.

We know, after all, one of the changes CIA made after its IG Report declared the program to be cruel and inhumane was to bring in independent medical personnel from their OMS to conduct evaluations. 

We note that this involvement [in 2005] of medical personnel in designing safeguards for, and in monitoring implementation of, the procedures is a significant difference from earlier uses of the techniques catalogued in the Inspector General’s Report. See IG Report at 21 n26 ("OMS was neither consulted nor involved in the analysis of the risk and benefits of [enhanced interrogation techniques], nor provided with the OTS report cited in the OLC opinion [the Interrogation Memorandum]."). Since that time, based on comments from OMS, additional constraints have been imposed on the use of the techniques.

And after the IG Report, the CIA imposed a specific new requirement that an OMS physician be present to observe the torture.

As noted, OMS input has resulted in a number of changes in the application of the waterboard, including limits on frequency and cumulative use of the technique. Moreover, OMS personnel are carefully instructed in monitoring this technique and are personally present whenever it is used. See OMS Guidelines at 17-20. Indeed, although physician assistants can be present when other enhanced techniques are applied, "use of the waterboard requires the presence of the physician." Id. at 9n2.

And this passage discussing the involvement of OMS after the IG Report makes it clear that, prior to that report, these "psychologist/interrogators" were the ones making the decisions on waterboarding.

"OMS contends that the expertise of the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe."

So it seems that in the early days of the torture program, the "psychologist/interrogators" were the ones making these medical and psychological judgments. Precisely the kind of people contracted to the CIA from Mitchell’s consulting firm. 

Now, it would seem to be a conflict in any case if a "psychologist/interrogator" were the only one to conduct such a profile before you up and waterboarded them 83 times in a month. But at the time the Bybee Memo was written, the CIA was still purportedly in the planning stages of the program–and we know Mitchell was personally involved in that planning stage.

There were a number of assurances CIA had to make to Bybee before he’d call this torture legal. One was that torture was the only way to get the information. Another was that Abu Zubaydah was psychologically strong enough to withstand it. Did the same person certify both to be true? And was that person James Mitchell?

Is it possible that, in addition to (possibly) judging Abu Zubaydah wasn’t going to cooperate, someone standing to make a fat government contract if torture was used is also the person who assured Jay Bybee that Abu Zubaydah was fit to be tortured?