I’ve been puzzling over two references in John Yoo’s testimony at the House Judiciary Committee’s Assholes Who Torture hearing last summer regarding the timing of the drafting of the August 1, 2002 Bybee Memos.

The legal issues that concern the Subcommittee today–involving the interrogation of alien enemy combatants–first arose about six months after the 9/11 attacks, in which about 3000 of our fellow citizens were killed in surprise terrorist attacks in New York City and Washington, D.C.

This timing makes a lot of sense. It would put the start of the legal considerations regarding torture techniques at around March 2002, which is when Abu Zubaydah was captured.

But then later, he dates the first request for an opinion much earlier–to a few months after 9/11.

We gave substantially the same advice to both agencies. Both matters at the time where highly classified and the pressures of time and circumstances were high–we received the first request a few months after the September 11, 2001 terrorist attacks on New York City and Washington, D.C.

[Side note–I wonder if he mentions 9/11 every time he gives dates, as in, "I got married approximately 13 years before terrorists killed 3000 people in New York City and Washington D.C. I moved to Chapman University eight years after the September 11, 2001 terrorist attacks? Update–I guess MadDog’s been puzzling on this point too!]

Now, there are a couple of possible explanations for the seeming discrepancy. 

There’s sloppiness–perhaps in the second reference, Yoo was just interpreting "few" expansively so he could remind his audience of 9/11 and the pressure they were under. I don’t really buy this though, because this statement has to have been incredibly heavily vetter by DOJ and his own lawyers (note the prominence of expressions of "good faith" and  "we tried as best we could"). Given the legal scrutiny Yoo is and was under when he gave this statement in a sworn appearance before Congress, I simply don’t believe that Yoo’s lawyers would permit such an inaccuracy.

There’s the possibility, too, that Yoo is thinking of another detainee-related memo. Perhaps the most likely explanation is that Yoo is thinking of one of the still-unreleased memos published in late 2001 and early 2002, including one of the following:

November 20, 2001: John Yoo to Alberto Gonzales, on "War Crimes Act, Hague Convention, Geneva Conventions, federal criminal code, and detainee treatment"

January 11, 2002: John Yoo to Alberto Gonzales, on the Geneva Conventions

January 14, 2002: John Yoo to William Taft, on prosecution under the War Crimes Act for conduct against al Qaeda

January 22, 2002: Jay Bybee and John Yoo to Alberto Gonzales, concluding the Geneva Conventions do not apply to al Qaeda

January 24, 2002: John Yoo to Alberto Gonzales, on the Geneva Conventions

January 24, 2002: John Yoo to Larry Thompson, on the application of international law to the US.

January 26, 2002: John Yoo to Larry Thompson, on the Geneva Conventions

So perhaps when Yoo refers to the "first request," he is referring to the first request for memos that–in their collective–would eviscerate international law as it pertained to the detainees.

But I do wonder whether Yoo began Bybee One–the memo asserting that, 

Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.

–was first drafted long before August 2002? After all, we know that Yoo’s 2003 memo–which made parallel claims as the Bybee Memo did in the context of the military–was drafted a couple of months before it was published in March 2003. And as a generalized memo, Bybee One did not depend on discussions held in the wake of Abu Zubaydah’s capture in March 2002. 

I ask this question largely because of the suggestion that email evidence may show some of the opinions were originally rejected. Clearly, as early as November 2001, Yoo was chipping away any legal limits on torturing detainees. My question is, how long did it take him before he declared that, "if it was authorized by the President, it did not violate the law"?

Mostly because I want to point you all to the newly updated Torture Timeline, I want to make a point about the timing of the decision to torture Abu Zubaydah.

At least according to the Senate narrative, they started discussing torture plans for Abu Zubaydah after February  22, 2002–when DIA first questioned Ibn Sheikh al-Libi’s claim of a tie between Iraq and al Qaeda that derived from torture. And they signed the Bybee Memo the day after the second DIA report questioning al-Libi’s Iraq-al Qaeda ties. 

The intelligence reports from al-Libi’s torture, of course, were used (in spite of DIA doubts about them) as a central claim in Colin Powell’s speech to the UN a year later.

I can trace the story of a senior terrorist operative telling how Iraq provided training in these weapons to al Qaeda.

Fortunately, this operative is now detained, and he has told his story. I will relate it to you now as he, himself, described it.

This senior al Qaeda terrorist was responsible for one of al Qaeda’s training camps in Afghanistan.

His information comes firsthand from his personal involvement at senior levels of al Qaeda. He says bin Laden and his top deputy in Afghanistan, deceased al Qaeda leader Mohammed Atef, did not believe that al Qaeda labs in Afghanistan were capable enough to manufacture these chemical or biological agents. They needed to go somewhere else. They had to look outside of Afghanistan for help. Where did they go? Where did they look? They went to Iraq.

The support that (inaudible) describes included Iraq offering chemical or biological weapons training for two al Qaeda associates beginning in December 2000. He says that a militant known as Abu Abdula Al-Iraqi (ph) had been sent to Iraq several times between 1997and 2000 for help in acquiring poisons and gases. Abdula Al-Iraqi (ph) characterized the relationship he forged with Iraqi officials as successful.

In other words, they were getting false information from torture–the false information they would use to bring us to war with Iraq–at the same time as they were devising their plan to torture Abu Zubaydah. 

Here’s an excerpt of the full timeline.

September 17 (alternately, 15), 2001: Bush signs Memorandum of Notification authorizing CIA to capture, detain, and interrogate al Qaeda figures.

October 21, 2001: OLC memo eviscerating 4th Amendment. 

December 17, 2001: DoD OGC asks JPRA for information about detainee "exploitation."

December 2001 or January 2002: James Mitchell asked Bruce Jessen to  review documents describing al Qaeda resistence training. They generated a paper on al Qaeda resistence capabilities and countermeasures.

December 18, 2001: Ibn Sheikh al-Libi captured. After being tortured, al-Libi made up stories about Al Qaeda ties to Iraq.

December 27, 2001: Rumsfeld announces plans to hold detainees at Gitmo. 

January 20, 2002: Bybee to Abu Gonzales memo specifying that common article 3 of the Geneva Convention does not apply to "an armed conflict between a nation-state and a transnational terrorist organization."

January 25, 2002: Gonzales memo for Bush recommends against applying the Geneva Convention to enemy detainees.

January 2002: Supplemental Public Affairs Guidance on Detainees affirms Geneva Convention wrt media photographs.

February 2, 2002: William Taft argues for the application of Geneva Conventions.

February 12, 2002: Jessen sends paper on al Qaeda resistance capabilities to JPRA commander Randy Moulton.

February 22, 2002: DIA voices doubts about al-Libi’s claims of Iraq-al Qaeda ties.

March 28, 2002: Abu Zubaydah taken into custody.

March 29, 2002: James Mitchell closes consulting company, Knowledge Works, in NC.

March 31, 2002: Abu Zubaydah flown to Thailand.

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.

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

May 2, 2002: The US "un-signs" the International Criminal Court treaty.

May 8, 2002: Jose Padilla taken into custody based on material warrant signed by Michael Mukasey and based on testimony from Abu Zubaydah.

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

June 25, 2002: Moussaoui arraigned.

July 10, 2002: Date of first interrogation report from Abu Zubaydah cited in 9/11 Report.

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.

Late July 2002: Bybee discusses SERE with Yoo and Ashcroft.

July 24, 2002: Bybee advised CIA that Ashcroft concluded proposed techniques were legal.

July 26, 2002: Bybee tells CIA waterboarding is legal. CIA begins to waterboard Abu Zubaydah.

July 31, 2002: DIA issues second report doubting al-Libi’s confession of Iraq-al Qaeda ties.

August 1, 2002: "Bybee Memo" (written by John Yoo) describes torture as that which is equivalent to :the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

The biggest piece of news from this exchange? Liz Cheney’s assertion that (only) two of the three detainees who were waterboarded (speaking of Abu Zubaydah and Khalid Sheikh Mohammed) provided valuable intelligence. Or, to put it another way, Rahim al-Nashiri did not provide valuable intelligence. 

Shorter Liz Cheney: "In addition to frivolous waterboarding number 83 for Abu Zubaydah my Daddy ordered up, he also ordered Rahim al-Nashiri to be frivolously waterboarded. And I’m proud of my Daddy’s torture because torturing someone 83 times for 10 pieces of intelligence is very effective."

Here’s the, um, transcript. At least this is what I heard…

Norah: Was your Daddy the "prime mover" of this process?

MiniCheney: I won’t answer the question. Instead let’s talk about why Eric Holder didn’t read the "Effectiveness Memo" created as a prop for the Bradbury torture memos to refute the IG Report’s conclusion that the torture program wasn’t effective. 

Norah: We”ll get to whether torture justifies the ends in this program.

MiniCheney: Norah, just because everyone knows this is torture doesn’t make it so. We have a SERE program so people are exposed to how false confessions are created. And we took that SERE program and exceeded the guidelines on the SERE program. But that’s not torture at all, not at all. In fact, it’s a very effective means to generate false confessions.

Norah: MiniCheney, the CIA on its own stopped waterboarding. The US prosecuted people for waterboarding. 

Norah: Dennis Blair said we don’t know whether the information could have been obtained by other means. The damage that is done has far outweighed what we got.

MiniCheney: Blair said we got understanding, but I’m going to call that very important. The White House censors, I just make shit up. 

Norah: Why doesn’t your Daddy own up that he was the prime mover in this?

MiniCheney: Once again, I won’t say whether or not Daddy was the prime mover. But he didn’t direct any lawyers. And besides, did you know that OLC included limits on this torture that those who developed this program, like my Daddy, had no intention of following? That proves that this is not torture. But I won’t answer questions about whether my Daddy was the prime mover of this program. 

Norah: Let me show what the memos actually say.

MiniCheney: Eeeeek!!!! Not the memos!! I’m melting!!!!

Norah: Your Daddy and Condi were in these meetings. But Powell and Rummy weren’t. Why won’t you say your Daddy was the prime mover of this program?

MiniCheney: I’m going to blame Powell anyway.

MiniCheney: The lawyers’ opinions were sought to make sure that the program that the NSA … wait a second. Are we talking about Daddy’s illegal wiretap program or Daddy’s illegal torture program? Oh yeah! … Torture! CIA!! to make sure the CIA stayed within the law. 

Norah; Listen to you!!! "How far we can go"?!?!?

MiniCheney: That’s right! Isn’t that cool?!

Norah: This is an important point.

MiniCheney: Yes, little girl, it’s a very very important point. Now now. But don’t you know? We Cheneys control the agenda on NBC. So I’m not going to let you make that point. 

Norah: Geneva Convention. America. Beacon in the world.

MiniCheney: [Glaring condescendingly at such childish foolishness]

MiniCheney: I get your point Norah, now shut up. We used a program of false confessions, and therefore this is not torture, it’s a program to create false confessions.

MiniCheney: This argument about the Geneva Conventions is all very emotional and girlie, Norah.

MiniCheney: And I think it’s important for the American people to hear only our argument laid out. 

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

Question: Are you satisfied that waterboarding is not torture?

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

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

But 2003?

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

6/XX/03
White House
CIA
Interrogation of prisoners

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

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

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

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

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

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

The May 10, 2005 "Techniques" memo makes it clear that the torturers who claim the Bybee memo legalized their water-boarding of Khalid Sheikh Mohammed and Abu Zubaydah are wrong.

That’s because the torturers didn’t do what the memo authorized. In a footnote on page 41, it says:

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is "for real–and is more poignant and convincing.") see also id. at 14 n14. The Inspector General further reported that "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." Id at 21 n26. We have carefully considered the IG Report and discussed it with OMS personnel. 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. [my emphasis]

In other words, the interrogators were dumping water on AZ’s and KSM’s faces and repeating that treatment over and over and over.

Without any legal authorization to do so, no matter how bogus.

It’s time this torturer faced some  "poignant and convincing" consequences for his actions. 

And note, this is precisely why the torture tapes were destroyed. CIA has admitted that the guys waterboarding Abu Zubaydah broke the law. That tape was the irrefutable evidence of who did what. 

Update: Fixed my dates.

I presume this story on Abu Zubaydah is an attempt to highlight the difficulty of choices facing the Obama administration, as well as to draw some attention to things like the excerpts of the ICRC report on Abu Zubaydah’s (and others’) torture. It reminds us what we already know–that Abu Zubaydah suffers from a head injury that made his memory bad and wasn’t even a member of al Qaeda, making his torture that much more pointless.

Because his name often turned up in intelligence traffic linked to al-Qaeda transactions, some U.S. intelligence leaders were convinced that Abu Zubaida was a major figure in the terrorist organization, according to officials engaged in the discussions at the time.

But Abu Zubaida had strained and limited relations with bin Laden and only vague knowledge before the Sept. 11 attacks that something was brewing, the officials said.

[snip]

"The government doesn’t retreat from who KSM is, and neither does KSM," said Joseph Margulies, a professor of law at Northwestern University and one of Abu Zubaida’s attorneys, using an abbreviation for Mohammed. "With Zubaida, it’s different. The government seems finally to understand he is not at all the person they thought he was. But he was tortured. And that’s just a profoundly embarrassing position for the government to be in." 

The news, here, seems to be that the US picked up a young associate of Abu Zubaydah the same night they got the older man. And that associate, Noor al-Deen, basically corroborated the details the intelligence community is now accepting. Before the US started torturing Abu Zubaydah.

Noor al-Deen, a Syrian, was a teenager when he was captured along with Abu Zubaida at a Pakistani safe house. Perhaps because of his youth and agitated state, he readily answered U.S. questions, officials said, and the questioning went on for months, first in Pakistan and later in a detention facility in Morocco. His description of Abu Zubaida was consistent: The older man was a well-known functionary with links to al-Qaeda, but he knew little detailed information about the group’s operations.

[snip]

On the night of March 28, 2002, Pakistani and American intelligence officers raided the Faisalabad safe house where Abu Zubaida had been staying. A firefight ensued, and Abu Zubaida was captured after jumping from the building’s second floor. He had been shot three times.

Cowering on the ground floor and also shot was Noor al-Deen, Abu Zubaida’s 19-year-old colleague; one source said that he worshiped the older man as a hero. Deen was wide-eyed with fear and appeared to believe that he was about to be executed, remembered John Kiriakou, a former CIA officer who participated in the raid.

"He was frightened — mostly over what we were going to do with him," Kiriakou said. "He had come to the conclusion that his life was over."

Deen was eventually transferred to Syria, but attempts to firmly establish his current whereabouts were unsuccessful.

His interrogations corroborated what CIA officials were hearing from Abu Zubaida, but there were other clues at the time that pointed to a less-than-central role for the Palestinian. As a veritable travel agent for jihadists, Abu Zubaida operated in a public world of Internet transactions and ticket agents.

So you’ve got a panicked teenager spilling his guts, insisting that Abu Zubaydah is just a functionary. And at the same time, Abu Zubaydah was saying he was just a functionary (and providing what useful intelligence he had to offer). And the US response to that was … to make Abu Zubaydah their torture experiment–their test case for what torture techniques did and did not "work." 

Yet more reason they destroyed the torture tapes showing Abu Zubaydah’s interrogation.

My supposition that one reasons Dana Priest’s black site article precipitated the torture tape destruction is because the tapes were dangerous to the country on whose territory the CIA tortured Abu Zubaydah led to me to read something I should have already read–the July 2007 COE report on European participation in the US HVD program. This post lays out what it says about Poland. I’m still reading the report, but given the direction of the comment threads on my other posts, I wanted to get this up for discussion.

Assuming the COE report is accurate (it is based on public reports and anonymous sources, including a number of CIA sources), Abu Zubaydah, Khalid Sheikh Mohammed, Ramzi bin al-Shibh, and probably al-Nashiri, were in Poland when Dana Priest’s article ran.

In accordance with the operational arrangements described below, Poland housed what the CIA’s Counterterrorism Centre considered its “most sensitive HVDs,” a category which included several of the men whose transfer to Guantanamo Bay was announced by President Bush on 6 September 2006.

We received confirmations – each name from more than one source – of eight names of HVDs who were held in Poland between 2003 and 2005. Specifically, our sources in the CIA named Poland as the “black site” where both Abu Zubaydah and Khalid Sheikh Mohamed (KSM) were held and questioned using “enhanced interrogation techniques.” The information known about these interrogations has formed the basis of heated debate in the United States and the wider international community, leading, in Zubaydah’s case, to high-level political and legislative manoeuvres and, in KSM’s case, to the admission of some troubling judicial precedents.

But it remains unclear on whether Abu Zubaydah was moved to Poland in 2002 or 2003. The report describes the HVD program as evolving between 2002 and 2003.

The United States negotiated its agreement with Poland to detain CIA High-Value Detainees on Polish territory in 2002 and early 2003. We have established that the first HVDs were transferred to Poland in the first half of 2003.

It describes top-level Polish officials as being aware of the program starting in 2002.

[S]ome individual high office-holders knew about and authorised Poland’s role in the CIA’s operation of secret detention facilities for High-Value Detainees on Polish territory, from 2002 to 2005.

And it describes the genesis of the program as starting in 2001.

In my understanding, the narrative of the HVD programme has played out largely over a five-year period, from September 2001 to September 2006. CIA insiders told us that there was widespread surprise that it operated and remained secret quite as long as it did. From 2004 onwards, the President was being strongly advised to place a time limit on the programme because it was regarded as having been somewhat improvisational in its nature and therefore could not be sustained: “every period in history has its bookends”.

It also admits that its sources about the Polish facility where top AQ members were held did not provide specifics about timing.

Beyond this fleeting insight, however, neither Polish nor American sources who discussed the HVD programme with us would agree to speak about the exact “operational details” of secret detentions at Stare Kiejkuty, nor would they confirm how long it was operated for, which other facilities were used as part of the same programme in Poland, nor how and when exactly the detainees left the country.

So from the report, we cannot tell whether the waterboarding of Abu Zubaydah alleged to have started in August 2002–and therefore the filming of that waterboarding–happened in Poland or Thailand, which the COE report mentions briefly.

Second we have been told that Thailand hosted the first CIA “black site,” and that Abu Zubaydah was held there after his capture in 2002. CIA sources indicated to us that Thailand was used because of the ready availability of the network of local knowledge and bilateral relationships that dated back to the Vietnam War.

[footnote] One CIA source told us: “in Thailand, it was a case of ‘you stick with what you know’;” however, since the allegations pertaining to Thailand were not the direct focus of our inquiry, we did not elaborate further on these references in our discussions. The specific location of the “black site” in Thailand has been publicly alleged to be a facility in Udon Thani, near to the Udon Royal Thai Air Force Base in the north-east of the country. This base does have long-standing connections to American defence and intelligence activities overseas: during the Vietnam War it served as both a deployment base for the US Air Force and the Asian headquarters of the CIA-linked aviation enterprise, Air America.

That said, the report explains one reason why the Priest article would be so problematic for Poland. While her article didn’t name Poland, it was a reasonably easy guess (I guessed it the day her article came out). More importantly, the then-President of Poland was responsible for negotiating Poland’s participation in the program personally.

The following persons could therefore be held accountable for these activities: the President of the Republic of Poland, Aleksander KWASNIEWSKI, the Chief of the National Security Bureau (also Secretary of National Security Committee), Marek SIWIEC, the Minister of National Defence (Ministerial oversight of Military Intelligence), Jerzy SZMAJDZINSKI, and the Head of Military Intelligence, Marek DUKACZEWSKI.

[snip]

There was complete consensus on the part of our key senior sources that President Kwasniewski was the foremost national authority on the HVD programme. One military intelligence source told us: “Listen, Poland agreed from the top down… From the President – yes… to provide the CIA all it needed.” Asked whether the Prime Minister and his Cabinet were briefed on the HVD programme, our source said: “Even the ABW [Internal Security Agency] and AW [Foreign Intelligence Agency] do not have access to all of our classified materials. Forget the Prime Minister; it operated directly under the President.”

Now, aside from all the reasons why Poland wouldn’t want civilized types to know they hosted our torture program for up to three years, there are reasons why Kwasniewski wouldn’t want that known as well. At the time of the Priest article, Poland had just elected a new President (Kwasniewski was term-limited, so couldn’t run, but Kwasniewski’s party did poorly in the election, so he knew an opposition party would take over). Kwasniewksi even had aspirations to becoming the UN Secretary General.

Kwasniewski wasn’t much use to use at the point Priest’s article came out–he had even already announced the withdrawal of troops from Iraq. But when a news article threatens to ruin the aspirations of statesmen, I can imagine they would make further cooperation more difficult to negotiate.

Per Jeff’s suggestion, I took a closer look at Zelikow’s memo on how the CIA stiffed the 9/11 Commission on evidence relating to interrogations of Abu Zubaydah and al-Nashiri. I’ll come back and comment on it in more detail–but I was struck by how closely the requests coincided with the beginnings of the Abu Ghraib scandal and Tenet’s resignation. So for now, I’m just adding some dates to this timeline (which I’ve integrated my torture tapes timeline). Look closely at the roles of Rummy, Cambone, Tenet, and McLaughlin.

August 1, 2002: Bybee Memo on torture governing interrogations by CIA

March 2003: Second John Yoo opinion on torture, governing interrogations by DOD

June 6, 2003: 9/11 Commission requests "’all TDs and other reports of intelligence information obtained from interrogations’ of forty named individuals from CIA, DOD, and FBI

August 31 to September 9, 2003: Major General Geoffrey Miller ordered to Abu Ghraib from Gitmo

September 22 and September 25, 2003: 9/11 discussions with CIA about interrogation process

October 1, 2003: Hamdi petition filed with SCOTUS

October 14 and 16, 2003: 9/11 Commission sends questions to CIA General Counsel Scott Muller on interrogations

October 31 and November 7, 2003: Response to 9/11 Commission with little new information

Fall 2003: General Sanchez visits Abu Ghraib regularly

December 2003: Jack Goldsmith tells Rummy he will withdraw March 2003 opinion on torture

December 23, 2003: 9/11 Commission requests access from Tenet to seven detainees; Tenet says no; Lee Hamilton asks for any responsive documents

January 5, 2004: 9/11 Commission decides CIA responses inadequate

January 9, 2004: SCOTUS agrees to hear Hamdi

January 13, 2004: Joseph Darby gives CID a CD of images of abuse

January 15, 2004: Memo to Gonzales, Muller, and Steve Cambone asking for more information

January 15, 2004: General Craddick receives email summary of story

January 19, 2004: General Sanchez requests investigation of allegations of abuse

January 20, 2004: Craddick and Admiral Keating receive another notice of abuse

January 2004: General Myers learns of abuse

January 26, 2004: After negotiations with Gonzales, Tenet, Rummy, and Christopher Wray from DOJ, 9/11 Commission accepts asking questions through intermediary

January 31, 2004: Taguba appointed to conduct investigation

February 9, 2004: 9/11 Commission requests “all TDs and reports related to the attack on the USS Cole, including intelligence information obtained from the interrogations of Abd al Rashim al Nashiri” from CIA

February 2 to 29, 2004: Taguba’s team in Iraq, conducting investigation

March 9, 2004: Taguba submits his report

Late March, 2004: 60 Minutes II starts on story

April 2004: General Miller ordered to Abu Ghraib to fix problems

April 7, 2004 (approximately): 60 Minutes II acquires photos authenticating Abu Ghraib story

Mid-April, 2004: General Myers calls Dan Rather to ask him to delay story

Mid-April, 2004: Taguba begins to brief officers on his report ("weeks" before his May 6 meeting with Rummy)

April 28, 2004: Hamdi v. Rumsfeld argued before SCOTUS; Paul Clement assures SCOTUS that the Administration doesn’t torture

QUESTION: May I ask just one other question, I think it’s just relevant. But do you
think there is anything in the law that curtails the method of interrogation that may be employed?

MR. CLEMENT: Well, I think there is, Justice Stevens. I mean —

QUESTION: And what is that?

MR. CLEMENT: Well, just to give one example, I think that the United States is signatory
to conventions that prohibit torture and that sort of thing. And the United States is going to honor its treaty obligations. The other thing that’s worth mentioning of course —

QUESTION: But you said something about self-executing. In connection with the Geneva
Convention, you said, well, it’s not self-executing. Would you say the same thing about the torture convention?

MR. CLEMENT: Justice Ginsburg, I actually have the sense that the torture victims — you have the Torture Victim Protection Act, of course, which I think doesn’t actually apply to the United States. So I’m not sure that there would be any other basis for bringing a private cause of action against the United States. But as this Court noted in footnote 14 of the Eisentrager opinion, the idea that a treaty is going to be enforced through means other than a private cause of action doesn’t mean that it’s not a binding treaty, doesn’t mean that it’s not going to constrain the actions of the executive branch. Just to finish up my answer to Justice
Stevens’ question, I wouldn’t want there to be any misunderstanding about this. It’s also the judgment of those involved in this process that the last thing you want to do is torture somebody or try to do something along those lines.

April 28, 2004: Abu Ghraib story airs on 60 Minutes II

May 2004: CIA briefing for Addington, Bellinger, and Gonzales on torture tapes

May 6, 2004: Taguba meets with Rummy, Wolfowitz, Cambone, Myers, and others

In the meeting, the officials professed ignorance about Abu Ghraib. "Could you tell us what happened?" Wolfowitz asked.

[snip]

“Here I am,” Taguba recalled Rumsfeld saying, “just a Secretary of Defense, and we have not seen a copy of your report. I have not seen the photographs, and I have to testify to Congress tomorrow and talk about this.”

May 7, 2004: Rummy testifies before Congress on Abu Ghraib

May 20, 2004: 9/11 Commission asks about Abu Zubaydah reference to Saudi prince; they get no response

June 3, 2004: Tenet announces his resignation; John McLaughlin resigns as well

June 7, 2004: WSJ refers to March 2003 OLC opinion

June 8, 2004: WaPo refers to Bybee Memo

June 15, 2004: Goldsmith informs Ashcroft he will withdraw Bybee Memo and resigns

June 28, 2004: Hamdi decision

June 29, 2004: John McLaughlin confirms that CIA "has taken and completed all reasonable steps necessary to find the documents in its possession, custody, or control responsive" to the 9/11 Commission’s formal requests and "has produced or made available for review" all such documents

July 11, 2004: Tenet’s resignation effective

I’m struck by three things.

First, Rummy and Cambone almost certainly knew of the Abu Ghraib scandal when they were negotiating with the 9/11 Commission about getting testimony from Abu Zubaydah, among others.

Second, one of the last things McLaughlin did before he resigned as DDCI was to assure the 9/11 Commission they had handed over all the documents relating to the interrogations in question.

Third, look at the context of that CIA briefing for Addington, Gonzales, and Bellinger in May 2004. Not only was the Administration dealing with the aftermath of the Abu Ghraib story, but it was also facing Goldsmith’s reconsideration of John Yoo’s torture guidance.

The NYT’s article has one more detail of note–again, reporting something that is intuitive, but not something that had been confirmed before, AFAIK. The torture tapes were stored in the country–singular–where the interrogations of Abu Zubaydah and al-Nashiri took place.

Until their destruction, the tapes were stored in a safe in the C.I.A. station in the country where the interrogations took place, current and former officials said. According to one former senior intelligence official, the tapes were never sent back to C.I.A. headquarters, despite what the official described as concern about keeping such highly classified material overseas.

Which raises some really interesting questions. Abu Zubaydah has been widely reported to have been taken from Pakistan to Thailand to be interrogated. Yet al-Nashiri’s trajectory has been less clear. He was reported to have been detained in the United Arab Emirates but it has never been clear where he was taken after he was captured (though I’ve seen unreliable sources say al-Nashiri was taken to Jordan).

But according to the NYT, al-Nashiri was apparently interrogated in the same country as Abu Zubaydah. So, presumably, Thailand, unless Abu Zubaydah was moved.

Though there is a distinct possibility that Abu Zubaydah was moved. From James Risen’s State of War:

The CIA assigned a group of agency officials to try to find alternative prison sites in countries scattered around the world. They were studying, said one CIA source, "how to make people disappear."

There were a number of third world countries, with dubious human rights records, willing to play host. One African country offered the CIA the use of an island in the middle of a large lake, according to CIA sources, and other nations were equally accommodating. Eventually, several CIA prisons were secretly established, including at least two major ones, code-named Bright Lights and Salt Pit. A small group of officials within the CIA’s Counterterrorist Center was put in charge of supporting the prisons and managing the interrogations.

[snip]

Bright Light is one of the prisons where top al Qaeda leaders–including Abu Zubaydah and Khalid Sheikh Mohammed, the cenral planner of the September 11 attacks–have been held. Bright Light’s location is secret, and it has been used for only a handful of the most important al Qaeda detainees. (30)

This passage follows Risen’s reporting that Abu Zubaydah was moved to Thailand not long after his capture. Which suggests, as far as Risen knows, Bright Light may not be in Thailand. And therefore, the country where Abu Zubaydah and al-Nishiri were tortured (and where their torture tapes were stored for three years) may not be Thailand.

That’s not much to go on. But I find this news particularly interesting considering the news that,

… the CIA came into possession of the three recordings [revealed to Leonie Brinkema in October] under unique circumstances involving separate national security matters unrelated to the Moussaoui prosecution.

On September 13, 2007, an attorney for the CIA notified us of the discovery of a videotape of the interrogation of [redacted]

The whole discussion of the destroyed torture tapes appears to be connected to the discovery, three months ago, of these other torture tapes, which were not destroyed. So it might suggest that the "separate national security matters" might have something to do with the location at which the torture tapes had been stored.

Dan Eggen and Walter Pincus have an interesting article describing the debate between CIA and FBI over whether waterboarding worked with Abu Zubaydah. If the timeline they describe is accurate, then it means that Abu Zubaydah may have given up his most important intelligence before they started torturing him (save, perhaps, fingering Ramzi bin al-Shibh). As to the information he gave up under torture, the CIA and FBI dispute whether it was useful or not. The article suggests the possibility that the CIA may have destroyed the torture tapes to hide the fact that the water-boarding was ineffective (which also might explain why Kiriakou so far hasn’t gotten scolded for telling the world that the United States tortures, since he claims it was effective).

The article explains that Abu Zubaydah was first detained on March 28, 2002 and describes him undergoing traditional interrogation methods from April and August. And apparently, using those traditional methods, they were able to get two of the most public pieces of information from Abu Zubaydah.

There is little dispute, according to officials from both agencies, that Abu Zubaida provided some valuable intelligence before CIA interrogators began to rough him up, including information that helped identify Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11 attacks, and al-Qaeda operative Jose Padilla.

[snip]

Other officials, including Bush, have said that during those early weeks — before the interrogation turned harsh — Abu Zubaida confirmed that Mohammed’s role as the mastermind of the Sept. 11 attacks.

But then, the CIA and Bush wanted more, so they started water-boarding Abu Zubaydah, apparently in August (at least according to the CIA).

Whether harsh tactics were used on Abu Zubaida prior to official legal authorization by the Justice Department is unclear. Officials at the CIA say all its tactics were lawful. An Aug. 1 Justice document later known as the "torture memo" narrowly defined what constituted illegal abuse. It was accompanied by another memo that laid out a list of allowable tactics for the CIA, including waterboarding, according to numerous officials.

Note, there appears to be some debate about this detail. But the assertion by the CIA that it started in August implies that they didn’t start waterboarding Abu Zubaydah until the Bybee memo authorized it. And that the intelligence used to arrest Padilla was gathered without using torture. Of course, the CIA has a big big incentive to say that they didn’t start torturing Zubaydah until they were authorized to, so take that detail with motivation in mind.

Bush, at least, claims the water-boarding led to the capture of Ramzi bin al-Shibh.

"We knew that Zubaida had more information that could save innocent lives, but he stopped talking," Bush said in September 2006. "And so the CIA used an alternative set of procedures," which the president said prompted Abu Zubaida to disclose information leading to the capture of Sept. 11, 2001, plotter Ramzi Binalshibh.

But the FBI holds that the information gathered from Abu Zubaydah got increasingly crummy as the torture continued.

But FBI officials, including agents who questioned him after his capture or reviewed documents seized from his home, have concluded that even though he knew some al-Qaeda players, he provided interrogators with increasingly dubious information as the CIA’s harsh treatment intensified in late 2002.

Abu Zubaydah himself maintains as much, too.

In legal papers prepared for a military hearing, Abu Zubaida himself has asserted that he told his interrogators whatever they wanted to hear to make the treatment stop.

So that appears to be the big debate. Did Abu Zubaydah give up useful intelligence under torture, or just crap? Did he give up Ramzi bin al-Shibh before or after they started torturing him?  

Now, one of the most interesting details of this article, given the debate, is that Abu Zubaydah identified al-Nashiri under torture, and then al-Nashiri was in turn tortured.

According to the 9/11 Commission, which had access to FBI and CIA summaries of the interrogation, after August 2002 — when the harsh questioning is said to have begun — Abu Zubaida identified Abd al-Rahim al-Nashiri as a productive recruiter for al-Qaeda. Nashiri was subsequently captured and subjected to harsh interrogation, including waterboarding, but videotapes of that questioning were also destroyed by the CIA

I find this particularly interesting. If Zubaydah gave up  al-Nashiri under torture, was the intelligence any good? If not, it might explain why they’d eliminate Abu Zubaydah’s and al-Nashiri’s torture tapes, among all the tapes I presume they have. Or, there’s another possibility. The evidence about what Abu Zubaydah said when comes from the 9/11 Commission. Is it possible they got false information about what was gained under torture and what was gained before the torture started?