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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.

[snip]

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."

And Did James Mitchell Also Write the Psychological Profile of Abu Zubaydah Bybee Used?

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]

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Abu Zubaydah’s FBI Interrogator Removes the Legal Cornerstone of the Torture Regime

Ali Soufan, the FBI interrogator described in the DOJ IG report on interrogation as the interrogator (whom they call "Thomas") who called CIA’s tactics on AZ, "borderline torture," has an important op-ed in the NYT. He writes,

One of the most striking parts of the memos is the false premises on which they are based. 

I pointed this out myself, in a post on why the debate over whether these techniques were necessary and effective is so heated.

Check out what the second paragraph of the Bybee Memo says:

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply. Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase." [my emphasis]

Here’s what Ali Soufan says:

It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.

We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber. This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Read more

The Torture Memos and the FBI-CIA Dispute

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

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

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

Background Details for the Memos

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

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

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

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

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

That timing is important for another reason. As Valtin first pointed out, the Administration was researching how to torture at least as early as December 2001. This article suggests the "research" went back even further, to just days after 9/11. Read more

The CIA IG Report and the Bradbury Memos

In May 2004, CIA’s Inspector General, John Helgerson, completed a report that found that the CIA’s interrogation program violated the Convention Against Torture. By understanding the role of that report in the May 2005 Bradbury memos, we see just how weak Bradbury’s memos are. 

As Jane Mayer described, the report strongly influenced Jack Goldsmith shortly before he withdrew the August 1, 2002 Bybee memo in June 2004.

The 2004 Inspector General’s report, known as a "special review," was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply "sickening." The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized. The source said, "You couldn’t read the documents without wondering, "Why didn’t someone say, ‘Stop!’"

Goldsmith was required to review the report in order to settle a sharp dispute that its findings had provoked between the Inspector General, Helgerson, who was not a lawyer, and the CIA’s General Counsel, Scott Muller, who was. After spending months investigating the Agency’s interrogation practices, the special review had concluded that the CIA’s techniques constituted cruel, inhuman, and degrading treatment, in violation of the international Convention Against Torture. But Muller insisted that every single action taken by the CIA toward its detainees had been declared legal by John Yoo. With Yoo gone, it fell to Goldsmith to figure out exactly what the OLC had given the CIA a green light to do and what, in fact, the CIA had done.

As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show. Goldsmith declined to be interviewed about the classified report for legal reasons, but according to those who dealt with him, the report caused him to question the whole program. The CIA interrogations seemed very different when described by participants than they had when approved on a simple menu of options. Goldsmith had been comfortable with the military’s approach, but he wasn’t at all sure whether the CIA’s tactics were legal. Waterboarding, in particular, sounded quick and relatively harmless in theory. But according to someone familiar with the report, the way it had been actually used was "horrible."

After Goldsmith withdrew the Bybee memoranda, Dan Levin wrote a new more restrictive memo in December 2004. But by spring 2005, the CIA wanted to use torture with some more high value detainees (including Hassan Ghul). So they had Steven Bradbury (in what was basically an audition to head OLC) write new torture memos–not only to reauthorize waterboarding (though it was not used on Ghul, according to reports), but also to dismiss all the concerns about the CAT raised by CIA’s IG.

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The Push to Publish the OPR Report

I was wondering when this would come out. After all, one of the advantages of having an easily-used journalist like Mikey Isikoff around is that when someone needs to leak something to increase political pressure, they know whom to go to.

So, those who want to make sure the OPR report damning John Yoo and Steven Bradbury is published in its current "very harsh" form will go to Mikey to make sure the report’s conclusions become public.

According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.) OPR is now seeking to include the responses before a final version is presented to Attorney General Eric Holder Jr. "The matter is under review," said Justice spokesman Matthew Miller.

[snip]

OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.

And in addition to those pushing to make the report public, there are those–speaking in a voice that sounds remarkably like certain lawyers associated with Dick Cheney–attacking the legitimacy of the report.

"OPR is not competent to judge [the opinions by Justice attorneys]. They’re not constitutional scholars," said the former Bush lawyer. 

David! How’ve you been now that you’ve been separated from your man-sized safe?

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Analogies for Yoo: The Merck Scandal

There’s been more discussion of the appropriate analogy to use to determine whether or not John Yoo should–or could–be fired from Berkeley. But I wonder whether the incipient Vioxx scandal won’t offer us the best analogy. As the NYT reports, Merck appears to have sent out drafts of reports to professors to have them submit them for publication under their own name.

Combing through the documents, Dr. Ross and his colleagues unearthed internal Merck e-mail messages and documents about 96 journal publications, which included review articles and reports of clinical studies. While the Ross team said it was not necessarily raising questions about all 96 articles, it said that in many cases there was scant evidence that the recruited authors made substantive contributions.

One paper involved a study of Vioxx as a possible deterrent to Alzheimer’s progression.

The draft of the paper, dated August 2003, identified the lead writer as “External author?” But when it was published in 2005 in the journal Neuropsychopharmacology, the lead author was listed as Dr. Leon J. Thal, a well-known Alzheimer’s researcher at the University of California, San Diego. Dr. Thal was killed in an airplane crash last year.

The second author listed on the published Alzheimer’s paper, whose name had not been on the draft, was Dr. Ferris, the New York University professor. Dr. Ferris, reached by telephone Tuesday, said he had played an active role in the research and he was substantially involved in helping shape the final draft.

“It’s simply false that we didn’t contribute to the final publication,” Dr. Ferris said.

A third author, also not named on the initial draft, was Dr. Louis Kirby, currently the medical director for the company Provista Life Sciences. In an e-mail message on Tuesday, Dr. Kirby said that as a clinical investigator for the study he had enrolled more patients, 109, than any of the other researchers. He also said he made revisions to the final document.

“The fact that the draft was written by a Merck employee for later discussion by all the authors does not in and of itself constitute ghostwriting,” Dr. Kirby’s e-mail message said.

This story is just breaking. But I suspect that there will be substantial scrutiny of the scientists involved, or at least those still at research universities. And I suspect we’ll start seeing longer lists of professors who rented their name out in support of drug companies.

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