How a Review Gets to Grand Jury in Five Days or Less

Update: Several people have corrected me that contextually this paragraph refers to the torture tape investigation, not the torture investigation. I think it’s still a good sign, but may not yet reflect on the torture investigation.

Although I have publicly suggested that Holder’s selection of John Durham as Special Counsel to investigate torture sets an upper limit on the seniority of those who might be targeted (because you don’t want an AUSA indicting, say, the former Acting Counsel of CIA), I did hold out one hope that Durham’s selection was a good sign. After all, Durham has already been investigating why Jose Rodriguez and others destroyed a bunch of tapes portraying the abuse of Abu Zubaydah and Rahim al-Nashiri. We know Zubaydah’s torturers exceeded the limits of the Bybee Two memo when they waterboarded him. And we know al-Nashiri’s torturers threatened him with drills.

So there was the possibility that Holder’s selection of Durham effectively amounted to an expansion of Durham’s earlier mandate, from an investigation of the destruction of evidence of abuse to an investigation of the abuse itself.

Which is why I’m so interested in a passage that Jason Leopold pointed to in the Walter Pincus story reporting that CIA will pay for CIA officers’ legal fees (the article doesn’t really say whether CIA will pay for contractors’ legal fees).

In that investigation, Durham has asked agency contractors to give testimony before a grand jury in Alexandria next month, according to three sources familiar with the matter. It is not clear that the witnesses will testify. 

Durham has been officially investigating the torture itself (as opposed to the torture tape destruction) for just four days. And his mandate is–at least officially–just a review of the earlier cases. Yet he’s already scheduling testimony before the grand jury next month?

I’m no lawyer (but bmaz is, and he agrees with me, and he’s even a bigger skeptic than I am), but there is no way Durham would be scheduling testimony before a grand jury that didn’t significantly arise from his earlier mandate. So these contractors are–at a minimum–almost certainly tied to the abuse of al-Nashiri, and might be tied to the abuse of Abu Zubayahdah.

The torture apologists are wailing that there’s no reason to reopen investigations that–they claim–were already completed by DOJ. But it appears that one reason to do just that is that CIA destroyed evidence they knew to be abusive Read more

Abu Zubaydah’s Psychological Profile

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.

Read more

The Waterboarding Authorization the Torturers Used?

I wanted to fully explain what I think may be the backstory to the LAT’s revelation that the torturers weren’t aware of the limits in the Bybee Two memo. Here’s what the LAT said:

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

A number of you have suggested (correctly, on the merits as presented by LAT) that if the torturers didn’t know what, specifically, was in the OLC memos, then they couldn’t very well think their torture was legal.

But that assumes they don’t have another document that, they may have been led to believe, authorized the torture they did.

On July 24, 2002, OLC verbally authorized a number of torture techniques, not including waterboarding. Around the same time, DOD urgently asked JPRA–the entity that administered SERE–to provide a list of its techniques so it could reverse-engineer interrogation techniques from them. In response, JPRA sent a memo with an attachment that described its techniques. Sort of.

(U) On July 26, 2002, JPRA completed a second memorandum with three attachments to respond to the additional questions from the General Counsel’s office. The memo stated that "JPRA has arguably developed into the DoD’s experts on exploitation and as such, has developed a number of physical pressures to increase the psychological and physical stress on students …"

In the memo, JPRA informed the General Counsel’s office that it had already "assist[ed] in the training of interrogator/exploiters from other governmental agencies charged with OEF exploitation of enemy detainees."190 The memo also stated:

Within JPRA’s evolving curriculum to train interrogators/exploiters many interrogation approaches are taught along with corresponding options for physical pressures to enhance the psychological setting for detainee interrogation. Several of the techniques highlighted (Atch 1) as training tools in JPRA courses, used by other SERE schools, and used historically may be very effective in inducing learned helplessness and ‘breaking’ the OEF detainees’ will to resist."

The first attachment to the July 26,2002 memo was ”Physical Pressures used in Resistance Training and Against American Prisoners and Detainees."192 Read more

With Justice Sotomayor Sworn In, Back to Torture

I was putting together notes for my Netroots Nation panel next Saturday on torture accountability and realized it has been over three weeks since reports said Eric Holder would appoint a prosecutor in the next two. But according to the LAT, Holder still intends to appoint a prosecutor–and still intends to sharply circumscribe the investigation.

U.S. Atty. Gen. Eric H. Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects, current and former U.S. government officials said.

A senior Justice Department official said that Holder envisioned an inquiry that would be "narrow" in scope, focusing on "whether people went beyond the techniques that were authorized" in Bush administration memos that liberally interpreted anti-torture laws.

The story reports that some of the potential subjects of investigation are still at CIA–though had been on the verge of retirement.

Bracing for the worst, a small number of CIA officials have put off plans to retire or leave the agency so that they can maintain their access to classified files and be in better position to defend against a Justice investigation.

"Once you’re out, it gets a lot harder," said a retired CIA official who said he had spoken recently with former colleagues.

And it suggests that the contractors will also be investigated.

The inquiry would also likely target private contractors who worked for the CIA during the interrogations.

But perhaps the most interesting revelation is that some of the torturers did not know what was in the John Yoo memo.

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

That’s interesting, first of all, because of the evidence that one of the documents used to develop the Bybee memo–and not the Bybee memo itself–described waterboarding as practiced. Is it possible that that was the only document the torturers read? Is it possible that Yoo wrote the Bybee memo knowingthat the more expansive limits would be followed?

In any case, if it’s true that the torturers didn’t know the limits in the Bybee memo (or at least, that DOJ can’t prove they knew those limits), then it all becomes a management issue again. Read more

From the Blogger’s Basement on Jane Mayer

Since Spencer asked, I read Jane Mayer’s piece this morning while sitting at my kitchen table eating mr. ew’s "best in the world" sourdough pancakes (from our homegrown sourdough), syrup from my syrup guy out in Mason, my butcher Bob’s amazing breakfast links, and locally roasted Ethiopian Yirgacheffe coffee. Though I admittedly read it while still wearing the t-shirt I had slept in.

Aside from the bloggers-on-cheetos slur, there were some interesting bits in the story. Mayer catalogs the changing fortunes of Mitchell and Jessen’s torture boondoggle.

In April, Panetta fired all the C.I.A.’s contract interrogators, including the former military psychologists who appear to have designed the most brutal interrogation techniques: James Mitchell and Bruce Jessen. The two men, who ran a consulting company, Mitchell, Jessen & Associates, had recommended that interrogators apply to detainees theories of “learned helplessness” that were based on experiments with abused dogs. The firm’s principals reportedly billed the agency a thousand dollars a day for their services. “We saved some money in the deal, too!” Panetta said. (Remarkably, a month after Obama took office the C.I.A. had signed a fresh contract with the firm.)

According to ProPublica, the investigative reporting group, Mitchell and Jessen’s firm, which in 2007 had a hundred and twenty people on its staff, recently closed its offices, in Spokane, Washington. One employee was Deuce Martinez, a former C.I.A. interrogator in the black-site program; Joseph Matarazzo, a former president of the American Psychological Association, was on the company’s board. (According to Kirk Hubbard, the former head of the C.I.A.’s research and analysis division, Matarazzo served on an agency professional-standards board during the time the interrogation program was set up, but was not consulted about the interrogations.)

I’ll note that April was the same month that the ICRC Report, SASC Report, and Ali Soufan’s first public statements came out (all of which specifically implicated the contractors). It’s amazing how quickly a little sunshine can make outsourcing torture unsustainable.

Mayer also notes something I’ve been sensing too–that John Durham’s investigation into the torture tape destruction may well have to investigate the reasons why the CIA had to destroy the tapes, most notably all the torture they did before OLC had authorized it.

A prosecutor appointed by the Justice Department, John Durham, has convened a grand jury in Washington to weigh potential criminal charges against C.I.A. officers who were involved in the destruction of ninety-two videotapes documenting the interrogations of Abu Zubaydah and other detainees. Read more

Leon Panetta: I’ve Got to Protect the Contractors from Unwarranted Invasion of Privacy

Well here’s a really really telling passage from Leon Panetta’s declaration on why he can’t turn over the torture documents to the ACLU.

Information concerning the names and titles of CIA personnel, and information concerning CIA organization, functions, and filing information, has also been withheld from the documents at issue based on FOIA Exemptions b(1) and b(3). Names and identifying information of CIA personnel, and CIA contractors and employees of other federal agencies involved in clandestine counterterrorism operations, also has been withheld on the basis of FOIA Exemption b(6), as the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.1

1 As described in the attached Vaughn index, 62 of the 65 documents at issue contain names or identifying information of Agency employees or personnel involved in clandestine counterterrorism operations. [my empahsis]

And sure enough, every cable from the field includes this dual invocation of FOIA exemptions to protect the identities of those involved in torture.

Exemption b(3) … This document also contains information relating to the organization, functions, and names of persons employed by the CIA that is specifically exempted from disclosure by section 6 of the Central Intelligence Act of 1949 … and thus is protected by Exemption b(3).


Exemption b(6) – This document also contains information relating to the identities of personnel engaged in counterterrorism operations, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The public interest in disclosure of this information does not outweigh the harm to the individual whose privacy would be violated, and thus the information is protection from disclosure by Exemption b(6).

They can’t protect James Mitchell and his crowd by invoking the CIA Act of 1949, of course, becase the guys in charge of the torture weren’t employees of the CIA. So instead, they’re invoking privacy protection that even the CIA seems to think might be dodgy.

And curiously, this is not what they have done in the past. Compare what appears in this Vaughn Index with the FOIA exemptions invoked for this set of apparently similar documents from 2004. Like a lot of cables in this series, Document 55 is a clandestine cable from Field to HQ. Read more

Did Abu Zubaydah’s Torture Begin After May 28, 2002?

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). Read more

Did Mitchell and Jessen Have the Three OTHER Torture Tapes? Or the Egyptians?

Update: Aeon makes an important point: the tapes may have been in foreign custody.

I thought it might be useful to go back and see what DOJ said to Brinkema about the ones that didn’t get destroyed.

The position of the CIA is that only AZ and al-Nashiri were videotaped. (grain of salt time — It is also their position that they recorded over all tapes every two days — thus explaining why only 92 tapes were destroyed.)

A Feb 2008 Mazzetti article about the subject of your post here adds some detail:

But federal prosecutors told a judge in October that the C.I.A. possessed two videotapes and one audiotape documenting the interrogations of detainees suspected of having been Qaeda operatives. In recent weeks, some government officials have indicated that the C.I.A. may have obtained those tapes or others from foreign intelligence services.

So another detainee could very well have been shown on these three tapes especially if obtained from a liaison service. But also the interrogation in question may have been then conducted by the same foreign intel service.

Moussaoui also asked for material from Ibn Sheikh al-Libi. Who, of course, was in Egyptian custody. That might explain why the transcripts were suspect, and it might explain why one part of CIA had contact with the people who had the tapes.  Thanks Aeon!

Since we’re back on torture tapes, I wanted to return to the letter DOJ sent to Leonie Brinkema to tell her they had found three torture tapes they had neglected to mention when she asked about tapes in November 2005. There’s much that remains obscure about this letter, but the whole thing makes a lot more sense if Mitchell and Jessen had been in possession of the three "discovered" tapes.

DOJ writes:

Recently, we learned that the CIA obtained three recordings (two video tapes and one short audio tape) of interviews of [four lines redacted]. We are unaware of recordings involving the other enemy combatant witnesses at issue in this case [half line redacted, must be the names of those Moussaoui asked to testify]. Further, the CIA came into possession of the three recordings 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 video tape of the interrogation of [one and a half lines redacted]. On September 19, 2007, we viewed the video tape and a transcript [redacted] of the interview. The transcript contains no mention of Moussaoui or any details of the September 11 plot. In other words, the contents of the interrogation have no bearing on the Moussaoui prosecution [footnote to a comment, "the recording from (redacted)"]. The existence of the video tape is at odds with statements in two CIA declarations submitted in this case, as discussed in detail below.

After learning of the existence of the first video tape, we requested the CIA to perform an exhaustive review to determine whether it was in a possession of any other such recordings for any of the enemy combatant witnesses at issue in this case. CIA’s review, which now appears to be complete, uncovered the existence of a second video tape, as well as a short audio tape, both of which pertained to interrogations [redacted]. On October 18, 2007, we viewed the second video tape and listened to the audio tape, while reviewing transcripts [redacted, with unredacted footnote saying, "The transcript of the audio tape previously existed and was contained within an intelligence cable."] Like the first video tape, the contents of the second video tape and the audio tape have no bearing on the Moussaoui prosecution–they neither mention Moussaoui nor discuss the September 11 plot. We attach for the Courts’ review ex parte a copy of the transcripts for the three recordings. Read more

Who Gave James Mitchell the Al-Qaeda Resistance Manual?

The SASC Report on Detainee Treatment reveals that some information collected from al Qaeda–and not DOD’s attempts to find methods to interrogate detainees–is one key to discovering how we got in the torture business. The SASC report reveals (as Valtin has been pointing out for some time) that DOD first contacted JPRA–the unit that oversees SERE–for "information about detainee ‘exploitation’" on December 17, 2001. But there’s another reference that suggests James Mitchell–one of the two retired SERE psychologists who reverse-engineered SERE and oversaw the first interrogations–was already on the job. In the section, "JPRA Collaboration with Other Government Agencies" (meaning, CIA), this reference appears:

[classification redaction] In December 2001 or January 2002, a retired Air Force SERE psychologist, Dr. James Mitchell, [redaction that I bet talks about a CIA contract] asked his former colleague, the senior SERE psychologist at JPRA, Dr. John "Bruce" Jessen, to review documents describing al Qaeda resistance training. The two psychologists reviewed the materials, [half line redacted], and generated a paper on al Qaeda resistance capabilities and countermeasures to defeat that resistance. 

Note, the "December 2001 or January 2002" date comes from an interview of Jessen, not directly from Mitchell. It’s not clear anyone has asked when Mitchell got the al Qaeda documents–but by the time Jessen was interviewed on July 11, 2007, DOD had already sent out notice to preserve all documents relating to Mitchell, so he was already under legal scrutiny at the time Jessen gave these dates.

In a section describing a DIA training session Jessen and Joseph Witsch did, it’s clear the al Qaeda documents form the basis for the training.

[classification redaction] Mr. Witsch stated that he worked with Dr. Jessen to develop a set of briefing slides for the [acronym redacted] training. The Department of Defense provided the Committee with slide presentations that appeared to have been produced by JPRA for the March 8, 2002 training. Mr. Witsch testified that the two slide presentations (1) [half line redacted–elsewhere this appears unredacted as Al Qaeda Resistance Contingency Training: Contingency Training for (redacted) Personnel] Based on Recently Obtained Al Qaeda Documents" and (2) "Exploitation" — appeared to be the same as those used by JPRA in the March 8, 2002 training. Read more

Yet Another Warning against Torture Ignored

So what kind of Friday night news dump do you think would elicit this much silence? (h/t scribe)

Haynes declined to comment, as did Rizzo and the CIA. Jay. S. Bybee, who as an assistant Attorney General signed the Aug. 1, 2002, memo, did not respond to a request for comment.


James Mitchell and Bruce Jessen … declined to comment on their role in formulating interrogation policy.

How about a document–given to DoD and from DoD to CIA and from CIA to Jay Bybee–referring to harsh tactics as torture and warning they don’t work?

The key operational deficits related to the use of torture is its impact on the reliability and accuracy of the information provided. If an interrogator produces information that resulted from the application ofphysical and psychological duress, the reliability and accuracy of this information is in doubt. In other words, a subject in extreme pain may provide an answer, any answer, or many answers in order to get the pain to stop.

The document comes complete with quotes from someone (my wildarsed guess is John Bellinger) who had been involved in deliberations on the torture policy stating that CIA shared none of this with the National Security Council.

A former administration official said the National Security Council, which was briefed repeatedly that summer on the CIA’s planned interrogation program by George Tenet, then Director of Central Intelligence, and agency lawyers, did not discuss the issues raised in the attachment.

"That information was not brought to the attention of the principals," said the former administration official, who was involved in deliberations on interrogation policy who requested anonymity because of the sensitivity of the issue. "That would have been relevant. The CIA did not present with pros and cons, or points or concern. They said this was safe and effective, and there was no alternative."

The urgent efforts of all the people involved in setting up our torture regime to blame each other seems likely to keep us in new document dumps for the next several weeks. But I don’t know about you–I’m getting overwhelmed. Though, imagine how Haynes, Rizzo, Bybee, Mitchell, and Jessen feel. It’s almost … "poignant."