Some lessons on the 3 Rs for the Cliff May and the other folks at N_O, who apparently don’t know this stuff.

Reading

First, read before you write. Because when you write, 

Under a strict set of rules, every pour of water had to be counted — and the number of pours was limited.

Also: Waterboarding interrogation sessions were permitted on no more than five days within any 30-day period.

No more than two sessions were permitted in any 24-hour period.

A session could last no longer than two hours.

There could be at most six pours of water lasting ten seconds or longer — and never longer than 40 seconds — during any individual session.

Water could be poured on a subject for a combined total of no more than 12 minutes during any 24 hour period.

You might want to know that the guidelines you pretend protected Abu Zubaydah and Khalid Sheikh Mohammed come from the 2005 memos, more than two years after AZ and KSM were waterboarded  So while you might regard them as strict and reasonable (I don’t), they didn’t have any bearing on what happened to AZ and KSM.

The guidelines in the 2002 memo–the ones in place when AZ and KSM were waterboarded–said, 

Finally, you would like to use a technique called the "waterboard" in this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers tbe mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. this causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of suffocation and incipient panic," i.e., the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. You have also orally informed us that it is likely that this procedure would not last more than 20 minutes in any one application. [my emphasis]

Your "strict set of rules," such as they existed when Abu Zubaydah was waterboarded 83 times in a month and Khalid Sheikh Mohammed 183 times in a month, did describe air flow being restricted for only 40 seconds (though the term "restricted" refers to air flow, not to the rules themselves). Though the only limit on "session" time comes from an oral assurance that "it is likely" to last no more than 20 minutes.

Furthermore, even if those 2005 guidelines were in place in 2002 and 2003 when these men were waterboarded 83 and 183 times, that would not prove your case, because we know AZ’s and KSM’s torturers didn’t follow the rules.

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] 

Whatever the rules were–20 minutes, 12 sessions, 40 seconds–it doesn’t matter. Both in terms of the frequency guidelines and amount of water (and some other important physical limits), the torturers broke the "strict rules" you’ve got such confidence in.

‘Riting

Next, two writing lessons.

First, when writing online, it is generally considered good form to include links.  Because when you include links, your readers will be able to figure out if you pull cute tricks like use rules written in 2005 to defend practices that happened in 2002 and 2003. Who knows? Your readers might even rescue you from your confusion!! 

Next, a lesson in putting words in your interlocutor’s mouths. See this sentence?

How many times have you read and heard in the mainstream media that terrorists were waterboarded more than 180 times?

Now, see this one, where you pretend to refute the first one?

According to two sources, both of them very well-informed and reliable (but preferring to remain anonymous), the 180-plus times refers not to sessions of waterboarding, but to “pours” — that is, to instances of water being poured on the subject.

See what’s missing in the first sentence that appears in your oh-so-clever second sentence? The words "session" and "pour." You see, no one–as far as I know–really cares whether the 183 number means six times a day some torturer hauled KSM out of his cell and strapped him onto the waterboard for 40 seconds or whether the torturer just turned a stream of water off and on over KSM’s mouth like he was watering daisies. The "session" versus "pour" distinction is pretty pointless to most of us. But you see, most of us also happen to think the notion of forcing someone to go through controlled drowning 183 times in a month–whether or not they were brought back to their cell in between–is still barbarous and sick.

So when writing, you should try to avoid claiming your interlocutors said something they didn’t.

‘Rithmetic

Okay, math. Let’s take the rules that you find so reasonable (there’s some more room to fudge in the rules as written in the 2005 memos, if they’re treated not as strict rules, but for simplicity sake, we’ll use yours)  and calculate how many times they allow someone to be waterboarded ("pours," if you will) in a month. First, here’s how the May 30, 2005 memo described the number of times Khalid Sheikh Mohammed was waterboarded.

The CIA used the waterboard … 183 times during March 2003 in the interrogation of KSM.  

So, 183 times in March 2003.

You say, 

Waterboarding interrogation sessions were permitted on no more than five days within any 30-day period. 

The spirit of this restriction might allow you waterboarding sessions on only 5 days in March 2003, but since March has 31 days, let’s, for the sake of thoroughness, say you’re allowed waterboarding sessions on six days, including both March 1 and March 31 among them. So during March 2003, according to the rules you find reasonable, KSM could have been waterboarded on six different days.

Next, you say,

 No more than two sessions were permitted in any 24-hour period.

So on each of the six days in March you’re waterboarding KSM, you can have two separate waterboarding sessions. 6 X 2 = 12. So you can waterboard KSM in March 2003 on 12 waterboarding sessions, total.

Finally, you say, 

There could be at most six pours of water lasting ten seconds or longer — and never longer than 40 seconds — during any individual session.

So in each of those 12 sessions, you could only pour (assuming each one lasts at least 10 seconds, though I anticipate you’ll soon be making distinctions between "sessions," "pours," and "drips," the latter being pours that got counted but never got a good 10 second stream of water going) a total of 6 times. 12 X 6 = 72. 

According to the rules you find so eminently reasonable, the maximum number of times KSM should have been waterboarded ("pours") in March 2003–or AZ should have been waterboarded in August 2002–was 72.  

But wait a second! We know that Abu Zubaydah, even at 83 waterboards in a month, significantly exceeds your reasonable number. And KSM? Two and half times the limit!! 

You see, once you learn your 3 Rs (Reading, ‘Riting, ‘Rithmetic) then you realize that even according to rules you find as eminently reasonable–but that many of the rest of us find barbarous and chilling in their false exactitude–even according to the rules, they went far, far beyond the limits. 

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. 

Jane and I had a chat yesterday with Jerrold Nadler (D-NY), the Chair of the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, to talk about his call for a special prosecutor to investigate the torture program. Chairman Nadler was clear:  "You don’t have much choice under the law–you have to investigate." The law requires, he explained, that such allegations be investigated. And if warranted, suspected crimes associated with torture must be prosecuted.

Nadler repeated, though, an important point. That the Justice Department, not the White House, must make these decisions. But, since the Department is implicated because of Bybee’s and Yoo’s role in the memos, we should have a Special Prosecutor to conduct the investigation.

As important as are Congressman Nadler’s calls for a special prosecutor, I was just as interested in his discusison about his efforts to introduce some checks on the use of state secrets to avoid prosecution. Nadler has introduced a bill that would introduce a process akin to the CIPA process (used during the Scooter Libby trial), where a judge would review evidence both to determine standing in a case, as well as determine whether substitutions for sensitive national security information could be used to litigate the case.

The bill, Nadler explained, is awaiting a committee hearing. But he is trying to get some support from DOJ for the bill before entering into hearings. Nadler recently met with Attorney General Eric Holder on this and a host of other issues (enemy combatant doctrine, the al-Marri case, warrantless wiretapping, the OPR investigation, as well as the torture memos). And, Nadler says, Holder seemed to agree to the principle, at least, of having some kind of CIPA-like process to state secrets.

Ultimately, Nadler contends (absolutely correctly, IMO), that the government should not be able to dismiss a suit by withholding evidence under state secrets. 

Between the Jeppesen Dataplan suit, the Binyam Mohammed suit, al-Haramain and all the rest of the warrantless wiretapping suits, preventing the government from demanding dismissal of a suit because of state secrets would go a long way to ensuring accountability when the government breaks the law. 

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

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

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

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

Science may be science, but money is money.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. [my emphasis]

We already knew this, of course, from the DOJ IG Report and many other sources. But Soufan emphasizes, importantly, that CIA interrogators were in the room when persuasive interrogation techniques worked. If those interrogators subsequently relied on the Bybee Memo, they could not claim they had a good faith reliance on the memo.

Which may be one of the reasons why, as Soufan notes, the CIA interrogators were unhappy at having been ordered to use coercive methods with AZ.

Almost all the agency officials I worked with on these issues were good people who felt as I did about the use of enhanced techniques: it is un-American, ineffective and harmful to our national security.

[snip]

My C.I.A. colleagues who balked at the techniques, on the other hand, were instructed to continue. (It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not C.I.A. officers, who requested the use of these techniques.)

Soufan’s on-the-record refutation of the very cornerstone of the Bybee Memo–and with it the entire torture regime–dismantles the legal rationale for that regime. As Bybee wrote,

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. 

So who lied to Bybee about what facts the CIA had in its possession?

Nico Pitney put this YouTube up as a preface to Shep Smith losing it in a later segment. (If you want to see Shep say "We are America, we do not fucking torture" click through.)

But I’m at least as fascinated by Judy Miller admitting she had a tough time getting all the way through the torture memos. "You know it when you see it," she said, referring to torture. Waterboarding someone 183 times, she repeated.

But as Shep points out, "if there was torture, that’s a crime. If there was crime, there were criminals. Who ordered the torture?" 

So now, two years after Judy’s dubious testimony got Dick Cheney off scot free after he ordered the outing of CIA spy, she’s demanding information about "Who Why When What, this system came about."

Let’s start with "Who," Judy…

Maybe she hasn’t thought through how this one ends. She claims she doesn’t know who ordered the torture, so that’s possible.

But we’re headed dangerously close to Judy turning on her roots, rather than turning in clusters. Not that I’m complaining, mind you–if Shep Smith and Judy Miller want to make it cool for Republicans to oppose torture, I’m all in favor. 

But it is a bit of a biological oddity, this aspen tree turning on its roots.

I beat the NYT to actual close reading over the weekend and it made a stink.

But Lambert documents his superior canine instincts from five years ago.

Je repete. 2004-05-09, Corrente:

Maybe there is a smoking gun. … Somebody’s got to authorize the dogs, the kennels, the handlers, and the purpose. … Who let the dogs out?

2009-05-20, Senator Carl Levin via Digby:

The interrogation techniques authorized by Secretary Rumsfeld in December 2002 for use at GTMO – including … military working dogs – were used by military intelligence personnel responsible for interrogations. … On September 14, 2003, Lieutenant General Sanchez issued an interrogation policy for CJTF-7 that authorized interrogators to use stress positions, environmental manipulation, sleep management, and military working dogs …

This was a very easy post to write: Evidence, and a soupçon of reasoning. So why was an unpaid, foul-mouthed blogger the one to write it, instead of a reporter in our famously free press? Bueller?… Bueller?… Bueller?

From one foul mouth blogger to another … good fucking question.

Last night, as I was beginning my catalog of the interrogation reports used in the 9/11 Report, the former Executive Director of the 9/11 Commission was on Rachel Maddow, elaborating on his Foreign Policy article where he revealed how the Bush Administration destroyed his objections to the May 2005 Bradbury Memos.

Anonymous Liberal had a very good take on Zelikow’s story (which basically matches what bmaz said to me via email). The destruction of Zelikow’s memos is clear evidence of criminality.

That’s an incredibly damning allegation. The only reason to collect and destroy all copies of this memo would be in order to preserve, for as many Bush administration officials as possible, a potential defense against later prosecution. If the extent of these activities ever became public and investigations were commenced, the White House wanted to be able to argue that everyone involved relied in good faith on the advice of counsel. That defense would be severely undermined if it could be shown that these officials were warned, by a lawyer of Zelikow’s caliber and rank within the administration, that the legal arguments they were relying on were poorly reasoned and unlikely to be sustained by a court.

This was pure CYA. And it was being done for reasons beyond the potential for political fallout. It was done in order to preserve the illusion of good faith reliance on OLC advice in the event of future criminal prosecutions. This is yet another reason why a special prosecutor needs to be appointed. While I agree with the decision by Eric Holder not to pursue prosecutions against CIA officials who relied in good faith on OLC advice (and did not exceed the scope of that advice), it is becoming increasingly clear that there were people (likely high ranking intelligence officials and people in the White House) who were explicitly warned (likely repeatedly) of the shoddy and highly dubious nature of the OLC’s advice. These folks should not be entitled to any presumption of good faith reliance. They need to be investigated. The attempt to scrub Zelikow’s memo from the record looks to me like an act of criminal conspiracy intended to preserve plausible deniability about the illegal nature of various government activities.

UPDATE: The expunging of Zelikow’s memo from the record is not the only thing the Bush administration has done to hinder the possibility of prosecution. Remember that all the tapes of these interrogations were destroyed or went missing at around the same time. I doubt that’s a coincidence.

Zelikow doesn’t make AL’s point as explicitly as AL does: he says only that they’ll have to explain why they destroyed those memos and doesn’t think about the maintenance of plausible deniability for the torturers. But it’s a good question.

So who’s going to ask that question?

The torture apologists are out in force, insisting that torture produces useful information. Cheney’s even promising to release information from CIA cataloging all the useful information that came from torture.

But we don’t have to wait for Cheney to make good on his promise. We already have a way to assess how much intelligence we got directly from torturing Abu Zubaydah and Khalid Sheikh Mohammed: the 9/11 Report. After all, the 9/11 Report integrates a huge amount of information from interrogation reports, and cites them all meticulously. As early as June 6, 2003, the 9/11 Commission asked for, "“all TDs and other reports of intelligence information obtained from interrogations” of forty named individuals, including Abu Zubaydah and (apparently) Khalid Sheikh Mohammed, and they used what they got in return to write their report. So if there was useful information in those reports, they presumably got it.

Here was a bipartisan group–including many staffers and members with extensive national security backgrounds–attempting to learn everything it could about al Qaeda, poring through interrogation reports produced as a result of torture, tracking inconsistencies in the intelligence, corroborating that intelligence where possible with documents and other testimony, and ultimately selecting what it felt was useful in telling the story of al Qaeda. While certainly not a perfect assessment of what was useful (I’ll explain why below), it provides one of the best unbiased ways to measure how useful this intelligence was.

And in the case of Abu Zubaydah, such an assessment is horrifying. 

In the entire 9/11 Report, just ten pieces of information are sourced to Abu Zubaydah’s interrogation reports.

Ten.

And there are several other damning details that come from this analysis. One of the ten pieces of intelligence that appears in the 9/11 Report–regarding Abu Zubaydah’s role running terrorist training camps–came from July 10, 2002, before the CIA first received oral authorization to use torture. Thus, it either came from persuasive, rather than coercive, techniques. Or it came from treatment that had not been legally approved.

In addition, the 9/11 Report doesn’t cite interrogation reports addressing [the lack of] ties between Iraq and al Qaeda directly; it cites a 2003 memo from Doug Feith that in turn cites 2003 interrogations of AZ and KSM. It’s unclear whether AZ’s and KSM’s earlier denials of links between al Qaeda and Iraq simply don’t show up in the earlier interrogation reports, or whether such information was deemed not credible in earlier reports. But the absence of such references, when we know interrogators were pushed to ask about them, raises questions about the integrity of the interrogation reports.

Of the ten pieces of information that appear in the Report, just one comes from the month when AZ was under most intensive interrogation. As it pertains to Rahim al-Nashiri, who had not yet been captured, it might be said to have an influence on his capture. Though appears to be background on who he was rather than details about how to find him. 

Finally, it was not until the Commission started submitting specific questions to be asked of detainees that AZ is reported to have discussed one key detail: why so many Saudis took part in the attacks.

I’ve got caveats and further discussion on this below. But a review of what the 9/11 Commission found useful from AZ suggests we waterboarded a man 83 times for ten pieces of intelligence.

The Timeline

Here are the ten references to Abu Zubaydah’s interrogation reports that appear in the 9/11 Report’s notes, along with other key dates from the chronology:

March 28, 2002: Abu Zubaydah captured

July 10, 2002: Abu Zubaydah describes his role running the Khaldan and Derunta training camps and the arrangement he has withal Qaeda (chapter 6, footnote 5)

Khaldan and Derunta were terrorist training camps in Afghanistan controlled by Abu Zubaydah.While the camps were not al Qaeda facilities,Abu Zubaydah had an agreement with Bin Ladin to conduct reciprocal recruiting effort whereby promising trainees at the camps could be invited to join al Qaeda.

July 24, 2002: CIA first receives oral guidance from Jay Bybee on interrogation techniques

August 1, 2002: Bybee memo formally authorizes enhanced interrogation techniques

August 29, 2002: Abu Zubaydah describes Rahim al-Nashiri’s success as a recruiter (chapter 5, footnote 31)

Nashiri also enjoyed a reputation as a productive recruiter for al Qaeda.

August 31, 2002 (approximately): Month-long intensive interrogation (including waterboarding) ends

October 2002: Rahim al-Nashiri captured

October 29, 2002: AZ describes Bin Laden’s popularity (chapter 2, footnote 18, text from body of report; also supported by 2000 CTC report)

By 1998, Bin Ladin had a distinctive appeal, as he focused on attacking America. He argued that other extremists, who aimed at local rulers or Israel, did not go far enough.They had not taken on what he called “the head of the snake.”

November 7, 2002: AZ gives tempered description of KSM’s popularity (chapter 5, footnote 19; the report suggests AZ may have been jealous of KSM)

KSM appears to have been popular among the al Qaeda rank and file. He was reportedly regarded as an effective leader, especially after the 9/11 attacks. Co-workers describe him as an intelligent, efficient, and even-tempered manager who approached his projects with a single-minded dedication that he expected his colleagues to share. Al Qaeda associate Abu Zubaydah has expressed more qualified admiration for KSM’s innate creativity, emphasizing instead his ability to incorporate the improvements suggested by others.

2003, undated: Doug Feith cites 2003 interrogations of AZ and KSM in a memo summarizing ties between Iraq and al Qaeda (chapter 2, footnote 76) [Note, Phillip Shenon’s The Commission notes that "in the early days of the investigation, [Philip Zelikow] had pushed for the commission’s staff to try to find evidence linking al-Qaeda and Baghdad." So we know the Commission was looking for such details. But the 9/11 Report cites no interrogation report describing Iraq-Al Qaeda ties directly.] 

We have seen other intelligence reports at the CIA about 1999 contacts. They are consistent with the conclusions we provide in the text, and their reliability is uncertain. Although there have been suggestions of contacts between Iraq and al Qaeda regarding chemical weapons and explosives training, the most detailed information alleging such ties came from an al Qaeda operative who recanted much of his original information.Intelligence report, interrogation of al Qaeda operative,Feb. 14,2004.Two senior Bin Ladin associates have adamantly denied that any such ties existed between al Qaeda and Iraq. Intelligence reports, interrogations of KSM and Zubaydah, 2003 (cited in CIA letter, response to Douglas Feith memorandum,“Requested Modifications to ‘Summary of Body of Intelligence Reporting on Iraq–al Qaida Contacts (1990–2003),’” Dec. 10, 2003, p. 5).

May 16, 2003: AZ claims Bin Laden expanded the scope of KSM’s original plan (chapter 5, footnote 25) [Note, this footnote appears because it contradicts KSM’s claims–included in the text–that the 9/11 plan was originally much bigger than it ended up being. The Commission appears to find KSM’s claim more truthful here.]

Abu Zubaydah,who worked closely with the al Qaeda leadership, has stated that KSM originally presented Bin Ladin with a scaled-down version of the 9/11 plan, and that Bin Ladin urged KSM to expand the operation with the comment,“Why do you use an axe when you can use a bulldozer?” Intelligence report, interrogation of Abu Zubaydah, May 16, 2003.The only possible corroboration we have found for Abu Zubaydah’s statement is Khallad’s suggestion that Bin Ladin may have expanded KSM’s original idea for an attack using planes. Intelligence report, interrogation of Khallad,Apr. 22, 2004. Neither Abu Zubaydah nor Khallad claims to have been present when KSM says he first pitched his proposal to Bin Ladin in 1996.

June 6, 2003: 9/11 Commission asks for “all TDs and other reports of intelligence information obtained from interrogations” of forty named individuals.

June 24, 2003: AZ provides description of the origins of "the Encyclopedia," a terrorist training manual created during the anti-Soviet campaign (chapter 6, footnote 8)

The Encyclopedia is a multivolume instruction manual containing lessons on weapons handling, tactics, covert operations, bomb making, and other topics.The manual was originally created in the late 1980s by Afghanistan-based extremists, who considered it essential for waging terrorist operations and guerrilla warfare in the jihad against the Soviets.

October 14, 2003:  9/11 Commission gives CIA “Questions for CIA Regarding Detainee Interrogation,” which,

posed dozens of very specific questions about puzzles in the interrogation reports themselves, including questions for anyone involved in the interrogations (e.g., interrogation administrators, interrrogators, or reporting officers) to clarify statements made in Abu Zubaydah’s interrogations (among others) or to clarify statements with further questions to the detainees. 

October 16, 2003:  9/11 Commision gives CIA “Evaluating Primary Information about the 9/11 Plot,” which,

… included questions about the translation process in the interrogations; the knowledge base of the interrogators; the way the interrogators had handled inconsistencies in the detainees’ stories; the context of what particular questions had been asked in order to elicit the reported information; the context of how interrogators had followed up on particular lines of questioning; and more information to assess the credibility and demeanor of the detainees in making the reported statements – and the views or assessments of the interrogators themselves. 

December 13, 2003: AZ provides a description of Bin Laden’s actions after the Cole bombing (chapter 6, footnote 125, text from body of report)

Back in Afghanistan, Bin Ladin anticipated U.S. military retaliation. He ordered the evacuation of al Qaeda’s Kandahar airport compound and fled— first to the desert area near Kabul, then to Khowst and Jalalabad, and eventually back to Kandahar. In Kandahar, he rotated between five to six residences, spending one night at each residence.

January 26, 2004: After repeated negotiations with the 9/11 Commission, which still felt its information from detainees was insufficient, the Administration offered to take sets of written followup questions, pose them to detainees, relay answers back to the Commission, and take further questions.

February 18, 2004: AZ provides information on Abu Turab, who reportedly conducted the final training for the 9/11 plotters. (chapter 7, footnote 108)

Abu Turab was the son-in-law of Ayman al Zawahiri.

February 19, 2004: AZ provides a comment on whether Saudis were selected for the 9/11 plot specifically (chapter 7, footnote 90, text from body of report)

Several other al Qaeda figures, however, have stated that ethnicity generally was not a factor in the selection of operatives unless it was important for security or operational reasons.

Now, as the Report makes clear, AZ was not the original source for a piece of intelligence the torture apologists credit to his torture–KSM’s nickname, Mukhtar. Here’s what the text of the report says about the nickname.

When additional pieces of the puzzle arrived in the spring and summer of 2001, they were not put together.

The first piece of the puzzle concerned some intriguing information associated with a person known as “Mukhtar” that the CIA had begun analyzing in April 2001.The CIA did not know who Mukhtar was at the time—only that he associated with al Qaeda lieutenant Abu Zubaydah and that, based on the nature of the information, he was evidently involved in planning possible terrorist activities. 110

The second piece of the puzzle was some alarming information regarding KSM.On June 12, 2001, a CIA report said that “Khaled”was actively recruiting people to travel outside Afghanistan, including to the United States where colleagues were reportedly already in the country to meet them, to carry out terrorist-related activities for Bin Ladin. CIA headquarters presumed from the details of the reporting that this person was Khalid Sheikh Mohammed. In July, the same source was shown a series of photographs and identified a photograph of Khalid Sheikh Mohammed as the Khaled he had previously discussed.111

The final piece of the puzzle arrived at the CIA’s Bin Ladin unit on August 28 in a cable reporting that KSM’s nickname was Mukhtar. No one made the
connection to the reports about Mukhtar that had been circulated in the spring.

As to the one other piece of intelligence credited to AZ’s torture (though FBI sources dispute this, too), Jose Padilla’s name never appears in the Report. The 9/11 Commission, it appears, did not find Padilla a notable player in the threat posed by al Qaeda.

The Caveats

As I said above, this analysis is definitely not a perfect measure of the value of AZ’s intelligence. While the 9/11 Commission includes abundant details of the second half of KSM’s plan (to blow up US-flagged planes in Asia), and that may have been perceived to be a real ongoing threat when KSM was interrogated, the 9/11 Report does not provide information on impending threats. So the 9/11 Report is not a good measure of precisely what the torture apologists want to claim torture is good for–for quick discovery of ticking timebomb threats.

That said, we know from the IG Report fragments cited in the May 30, 2005 torture memo that as of May 2004, there was no conclusive data connecting intelligence gained through torture with preventing any attacks.

As the IG Report notes, it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks. See id. at 88.

And even today, in a memo some point to as proof that torture works, Dennis Blair emphasizes the importance of information gained through torture to provide a "deeper understanding" of al Qaeda; he makes no claims that the information prevented any imminent attack.

High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country.

Philip Zelikow describes the goal of the Commission as seeking precisely that kind of deeper undersanding of al Qaida.

[The Commission] did seek information not only about the 9/11 plot, but also any intelligence information about the history and evolution of al Qaeda and its connections  to other terrorist entities.

So while the 9/11 Report may not be a fair measure of whether intelligence gained through torture prevented any imminent attacks, it is a fair measure of what information gained through torture "provided a deeper understanding" of al Qaeda.

Another caveat: while the 9/11 Report uses almost nothing from Abu Zubaydah’s interrogation reports, it relies heavily on KSM’s interrogation reports. I’m just part of the way through collecting all the KSM references from the report, and I’ve tracked over a hundred references attributed to KSM interrogation. One of the interrogation reports–claiming Hambali helped Moussaoui–comes from the month he was tortured. And a few more of the reports from April, shortly after the waterboarding apparently ended, pertain to Hambali as well. Though I wonder whether the intelligence community still stands by the claim that an al Qaeda associate was attempting to create anthrax in Kandahar for a year?

But even with KSM, the most substantive interrogation reports–the ones that "provided a deeper understanding" of al Qaeda, came after the waterboarding stopped. Interrogation sessions on July 12, 2003, August 18, 2003, January 9, 2004, and (presumably using questions that came from the Commission) mid-February, 2004 provided by far the most information appearing in the Report.

We will never know whether the later interrogation reports from AZ or KSM could have been gleaned without having used torture or not. Both AZ and KSM describe threats of ongoing torture after the month of intense torture (with AZ, they left the small confinement box in sight; with KSM they would occasionally place the "walling" collar on the table). But also during this time, AZ and KSM increasingly received solid food and clothing and other apparent rewards for cooperation. Thus, we can’t say whether the later, much more productive interrogation sessions came because interrogators began to build rapport with these men–or at least a system of sticks and carrots, or because the threat of ongoing torture remained credible.

The Low-Quality Reports

One final point on the quality of the torture-based interrogations.

If intelligence is to be useful, then the interrogation reports must be accessible and meaningful to others, outside of the interrogation team, who read the reports. And on that level, at least as measured by the 9/11 Commission, the process that created the interrogation reports of AZ and KSM failed, utterly. As Zelikow explains, the first batch of interrogation reports received in fall 2003 were not very useful. "After reviewing and digesting this material, Commission staff concluded that this information was not as detailed as they had expected." The material raised questions about information edited out between the operational cables [what was sent back to HQ] and the disseminated reports [what the Commission got to read]. It raised questions about the translation process used for the interrogations and the "knowledge base" of the interrogators. Ultimately, though, the Commission was never able to adequately address concerns about the "credibility and meaning" of the reports. So the experience of the 9/11 Commission–in addition to what they tell us about the inefficacy of the torture–also suggests that the entire interrogation system, with compartmented interrogators working in secret locations, who didn’t have the appropriate language skills or a solid understanding of al Qaeda, did not produce usable intelligence. Cheney wants to argue that torture produced intelligence–but the 9/11 Commission makes it clear that it wasn’t usable intelligence. 

As I said, using the 9/11 Report to measure the value of the information we got through torture is imperfect–though it is a means of doing so outside of the inflamed debate we’re currently in (though its publication did postdate the Abu Ghraib scandal that put torture on the front pages). 

However imperfect a way to measure the intelligence we got, it still tells a really horrifying story. Abu Zubdaydah was waterboarded 83 times in a month. And for all that torture, he only revealed 10 (perhaps 9) pieces of intelligence deemed useful by the 9/11 Commission. 

The ACLU is reporting something that I’ve suspected.

According to the CIA public affairs office, Rizzo is still Acting General Counsel.

John Rizzo, the man who worked with both Jay Bybee and Steven Bradbury to pre-authorize torture, is still being paid by you and me to make sure that the CIA follows the law.

As the SASC report notes, Rizzo is the man who provided the list of torture techniques to Jay Bybee for inclusion in the memo–the key link in turning SERE techniques into torture.

According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was "the vehicle" for getting the interrogation practices analyzed in the Second Bybee memo to the Department of Justice.

This suggests it’s likely that Rizzo knew that CIA was intending to do one thing with waterboarding but tempering the description of that in the OLC memo. Also, I outlined ways in which it appears the information Rizzo provided to OLC was, at a minimum, under dispute when it was given. In other words, Rizzo may well be the key person who manipulated the OLC process to legalize torture.

I’ve got a half-written post explaining why Rizzo must be included among those whose role we investigate going forward.  That’s all the more crucial given that Rizzo is still in a position of power in our government. 

Update: basic grammar corrected per pm.