As I noted in January, comments Mark Udall made in the course of confirming Stephen Preston to be DOD General Counsel make it clear that CIA’s lies about a detainee generally believed to be Hassan Ghul are one of the new revelations in the Torture Report. For a number of reasons, I believe one thing CIA lied to DOJ about is when they tortured Ghul.
As I’ll show in a follow-up post, the question of when they tortured Hassan Ghul may reflect not just on the torture program, but also on the dragnet.
The public record claiming Ghul was tortured in July and August, 2004
We can lay out a rough timeline of the torture of the detainee believed to be Ghul based on several data points. First, Jay Bybee’s response to the Office of Professional Responsibility report (see page 22) makes it clear a July 2, 2004 Principals Committee meeting pertained to detainee “Janat Gul,” custody of whom CIA had reportedly (see PDF 59) just obtained (Bybee would not have been at the meeting — he had become a Circuit Court Judge over a year earlier — so he must be relying on what the OPR report says).
In addition, we can trace back the documents leading up to a reference to “Gul” in the May 30, 2005 CAT memo (see page 7). That reference describes an August 25, 2004 letter that asked for permission to use — among other things — water dousing and abdominal slaps. The approval to that request, dated August 26, 2004, cites the August 25 letter, an August 2, 2004 letter from John Rizzo, and a July 30, 2004 letter. An August 6, 2004 letter approving waterboarding also cites the August 2 Rizzo letter.
In the August 10, 2005 Techniques memo, some of these same documents are cited; the memo also reveals its subject was obese and had heart problems. Although the Techniques memo approved waterbaording, it said it was not used with the subject of the memo because of a medical contraindication.
All of this would seem to give the following chronology for Hassan Ghul’s torture (assuming he is the detainee referred to as Gul):
July 2, 2004: CIA obtains custody and in a Principals Committee meeting discusses his torture
July 7, 2004: Goldsmith provides guidance on acceptable techniques
July 22, 2004 (5 days after Goldsmith’s departure): John Ashcroft approves the use of all Bybee Memo techniques, except for waterboarding
July 30, 2004: Letter to Daniel Levin including description of torture techniques
August 1, 2004: Government raises threat level in advance of election year threats, announces surveillance of financial institutions, though reports are years old
August 2, 2004: Letter from John Rizzo to Levin, including details on when the CIA would use waterboarding and a medical and psychological assessment of Ghul
August 6, 2004: Daniel Levin advises that subject to reservations, CIA’s use of waterboarding not illegal
August 19, 2004: Letter to Daniel Levin detailing new limits on waterboarding
August 25, 2004: In letter to Daniel Levin asking to water douse Ghul, CIA claims the CIA believed (when it got custody) Ghul had actionable intelligence on “pre-election” threat to United States, had extensive connections to various al Qaeda leaders, members of the Taliban, and Zarqawi, and had tried to set up a meeting “at which elements of the pre-election threat were discussed”
August 26, 2004: Levin approves four new techniques with Ghul, including water dousing
This chronology suggests DOJ repeatedly told CIA waterboarding was not permissible in the weeks after Jack Goldsmith withdrew the Bybee Memo, but after the National Security establishment raised the threat level on August 1 because of years-old surveillance in the US, DOJ relented and approved waterboarding with Ghul. Subsequently, it appears, CIA decided Ghul was not healthy enough — either because of his heart condition or his obesity — to undergo waterboarding, so they instead water doused him in near-freezing temperatures.
The problem with this chronology
There is just one problem with that chronology: the CAT memo discusses two detainees (see page 6). The description of the first detainee — someone involved in the alleged 2004 pre-election threat — mentions the August 25 letter which elsewhere in the memo ties to Gul by name.