The OLC Memos, “Erroneous and Inflammatory Assumptions,” and John Rizzo’s Lies

In his statement on the torture memos today, Obama suggested that some of the "assumptions" about what Americans had done were wrong, and that releasing the memos would correct these "assumptions."

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.[my emphasis]

This suggests (though weakly) that the OLC memos–and not other evidence–should be taken as authoritative on the events surrounding our interrogation program.

Though, on several counts, this is not true.

The most troubling example pertains to Abu Zubaydah’s mental state before he was tortured. John Yoo (writing under Jay Bybee’s name) goes to some lengths to establish Abu Zubaydah’s sanity. After five paragraphs that basically make Abu Zubaydah out to be a self-confident stud, here’s what Yoo says about AZ’s psychological health.

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-sufiicient 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 tius demeanor during aggressive interrogations and reductions in sleep. You describe that in an initial confrontational incident, Read more

The Torture Memos

ACLU has them posted:

August 1, 2002 John Yoo memo

First May 10, 2005 Steven Bradbury memo

Second May 10, 2005 Steven Bradbury memo

May 30, 2005 Steven Bradbury memo

And while you’re over at ACLU, consider showing them some love for all their great work prying these out of the government. 

Consider this a working thread.

Update: Did I say they were worried about blows to the head? From the August 1, 2002 memo:

For walling, a flexible false wall will be constructed. The individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual’s shoulder blades that hit the wall. During this motion, the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash. To further reduce the probability of injury, the individual is allowed to rebound from the flexible wall. 

Oh, and did I mention that they were using Abu Zubaydah as a human guinea pig, to test out methods they wanted to get approved? I ask, you see, because Abu Zubaydah told the ICRC that they only put in the "flexible false wall" after they started this technique.

Obama on the OLC Memo Release

With my comments interspersed:

The Department of Justice will today release certain memos issued by the Office of Legal Counsel between 2002 and 2005 as part of an ongoing court case. These memos speak to techniques that were used in the interrogation of terrorism suspects during that period, and their release is required by the rule of law.

Michael Hayden was on claiming they could have won this in court–I think he’s really underestimating how fed up Hellerstein is with this bullshit. 

My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer. Enlisting our values in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.

But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

Note the admission that not all of the practices have been acknowledged. Perhaps, just for example, blows to the head?  Also, the recognition that these have been widely reported suggests the ICRC report may have made a difference in this fight.

In releasing these memos, Read more

It’s Not the Water-Boarding, It’s the Blows to the Head

Just to lay out a few details based on this article explaining that Obama continues to waver on what parts of the 2005 Bradbury torture memos to reveal. (h/t Steve)

1. According to the WSJ,  it’s not the description of water-boarding that the CIA wants to hide. It’s the description of how the CIA threw people against the wall.

Among the details in the still-classified memos is approval for a technique in which a prisoner’s head could be struck against a wall as long as the head was being held and the force of the blow was controlled by the interrogator, according to people familiar with the memos.

2. We know from the ICRC report this technique had been used, three years before Bradbury wrote his OLC memos, with Abu Zubaydah.

I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room.

[snip]

When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck. I think that the plywood was put there to provide some absorption of the impact of my body. The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury.

(According to the report, five more of the High Value Detainees described the same treatment.)

3. We know that Abu Zubaydah now has mental injuries and–apparently–cannot stand trial.

The WSJ quotes intelligence officials claiming that, if these details are made public, it’ll be a propaganda tool for the terrorists.

Intelligence officials also believe that making the techniques public would give al Qaeda a propaganda tool just as the administration is stepping up its fight against the terrorist group in Afghanistan and Pakistan

But these details have already been made public, in the ICRC report and elsewhere. What the intelligence officials want to hide is that–even after they did this damage to Abu Zubadaydah (though before the ICRC called it torture in 2007)–Steven Bradbury wrote an OLC memo declaring this treatment legal.

Panetta: Contractors Not Allowed to Interrogate (Anymore)

Leon Panetta just wrote a letter to Congress assuring them that contractors will not be used for interrogations.

The Central Intelligence Agency has banned contractors from conducting interrogations, CIA Director Leon Panetta told lawmakers in a letter Thursday outlining the agency’s dismantling of several Bush-era policies.

The letter and an accompanying memo to CIA employees were the fullest explanation to date of how the agency is carrying out President Barack Obama’s executive order of Jan. 22 ending the CIA’s "black site" program that detained terror suspects.

One flashpoint in that program was the use of outside contractors to interrogate suspects. Under congressional pressure, Director of National Intelligence Dennis Blair recently said he was reviewing that policy and added that government employees should handle the most important detainees.

Mr. Panetta went further, saying flatly: "No CIA contractors will conduct interrogations."

[anip]

An intelligence official said the contractor ban doesn’t extend to support of interrogations. "If a contractor has, say, special language skills, it’s conceivable that he or she could be asked to support a debriefing," the official said.

Read the whole argument, as it includes easily parsed reassurances that the CIA is out of the black site business as well.

Panetta did not mention, apparently, whether or not the contractors who designed our torture system were still on contract. 

Double-Dipping at Gitmo?

MadDog pointed to the full 2007 ICRC Report on detainee treatment.

There’s a lot to say about this (and Joby Warrick’s got a story out reporting its criticism of medical personnel who abet the torture).  But this stuck out for me:

…the ICRC notes that four detainees believed that they had previously been held in Guantanamo, for periods ranging from one week to one year during 2003/4. They reported recognising this location upon return there in September 2006, as each had been allowed outdoors on a daily basis during their earlier time there. The ICRC has been assured by DoD that it was given full notification of and access to all persons held in Guantanamo during its regular detention visits. The ICRC is concerned, if the allegations are confirmed, it had in fact been denied access to these persons during the period in which they were detained there.

We already knew that DOD moved prisoners to hide them from ICRC–so I suspect ICRC will soon have its fears confirmed.

"We may need to curb the harsher operations while ICRC is around. It is better not to expose them to any controversial techniques," Lt. Col. Diane Beaver, a military lawyer who’s since retired, said during an October 2002 meeting at the Guantanamo Bay prison to discuss employing interrogation techniques that some have equated with torture.

[snip]

A third person at the meeting, Jonathan Fredman, the chief counsel for the CIA’s Counterterrorism Center, disclosed that detainees were moved routinely to avoid the scrutiny of the ICRC, which keeps tabs on prisoners in conflicts around the world.

"In the past when the ICRC has made a big deal about certain detainees, the DOD (Defense Department) has ‘moved’ them away from the attention of the ICRC," Fredman said, according to the minutes.

But I’m rather interested in the timing: 2003/4.

Which suggests, of course, they had high value detainees in Gitmo. But then moved them as the Abu Ghraib scandal broke and those who didn’t already know learned that the US was torturing detainees.

You gotta hide the high value detainees, of course, because if they could talk, they’d reveal that the techniques at Abu Ghraib were anything but a few bad apples. 

Durbin and Whitehouse: Why Did Mukasey Give OLC a Peek at the Yoo/Bradbury Results?

Dick Durbin and Sheldon Whitehouse want to know why the Office of Professional Responsibility gave OLC a chance to review their report on John Yoo’s and Steven Bradbury’s torture memos.

Just last week, they got a response from DOJ on the process the OPR review has gone through, revealing that the report already integrated comments from Mukasey and "OLC" (whose acting head was Steven Bradbury), and was giving Bradbury, Yoo, and Jay Bybee an opportunity to comment, as well. It will take "substantial time" before this review process is done, DOJ says.

OPR has completed its investigation of this matter and in late December 2008, provided the draft report to Attorney General Mukasey and invited comment. Attorney General Mukasey shared the report with Deputy Attorney General Filip and OLC. Thereafter, Attorney General Mukasey, Deputy Attorney General Filip and OLC provided comments, and OPR revised the draft report to the extent it deemed appropriate based on those comments.

In addition, during the course of the investigation, counsel for the former Department attorneys asked OPR for an opportunity to review and comment on the report prior to any disclosure of its results to Congress or the public. Attorney General Mukasey and Deputy Attorney General Filip likewise requested that OPR provide the former Department attorneys with such an opportunity. For these reasons, OPR is now in the process of sharing the revised draft report with them. When the review and comment period is concluded, OPR intends to review the comments submitted and make any modifications it deems appropriate to the findings and conclusions. OPR will then provide a final report to the Attorney General and Deputy Attorney General. After any additional review they deem appropriate, the Department will determine what disclosures should be made. Due to the complexity and classification level of the draft report, the review process described above likely will require substantial time and effort.

Which of course raises a whole slew of questions, some of which Durbin and Whitehouse have now posed to DOJ. Such as whether OLC’s review of the document influenced Steven Bradbury’s January 15 OLC memo withdrawing certain earlier opinions. 

Your letter does not indicate whether Steven Bradbury was recused from reviewing and providing comments on the draft report.  Mr. Bradbury, who was then the Principal Deputy Assistant Attorney General of OLC, is reportedly a subject of the OPR investigation. Read more

They Should Have Listened to Noor al-Deen

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

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

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

[snip]

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

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

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

[snip]

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

Cowering on the ground floor and also shot was Noor al-Deen, Read more

The Abu Zubaydah Experiment

The NYRB New Yorker has a piece with long excerpts from the leaked Red Cross report on American torture of high value detainees. (h/t scribe; corrected per scribe) Read it. It’s chilling in its systematicity–the constant involvement of doctors, the efforts to hide any marks of torture, the invention of clinical language to describe torture.

I’ll return to the report, but for the moment just one observation.

Amid a slew of details on the treatment of Abu Zubaydah, the article describes Abu Zubaydah learning that he was the guinea pig for these techniques.

We do not know if the plywood [to minimize the damage from slamming him against the wall] appeared in Zubaydah’s white room thanks to orders from his interrogators, from their bosses at Langley, or perhaps from their superiors in the White House. We don’t know the precise parts played by those responsible for "choreographing" the "alternative set of procedures." We do know from several reports that at a White House meeting in July 2002 top administration lawyers gave the CIA "the green light" to move to the "more aggressive techniques" that were applied to him, separately and in combination, during the following days:

After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box, I think I may have slept or maybe fainted.

I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. Read more

Unemployed Bush Lawyers and the OPR Report

Let’s do some math.

First, the NYT reports that, like Alberto Gonzales, David Addington is also facing some career challenges. 

David S. Addington, a top aide to Vice President Dick Cheney who was a forceful voice in internal legal debates, is also said to still be looking for work.

Next, Scott Horton reports on the upcoming OPR report detailing John Yoo and Steven Bradbury’s unethical conduct in craft OLC memos to justify torture. The report, apparently, focuses on contacts between the White House and OLC.

Sources at the department who have examined [the OPR] report state that it echoes some of the harshest criticisms that have appeared in the academic literature, but the report’s real bombshell, they say, will be its detailed disclosure of Yoo’s dealings with the White House in connection with the preparation of the memos. It is widely suspected that the Yoo memos were requested as after-the-fact legal cover for draconian policies that were already in place (“CYA memos”). If the Justice Department internal probe concludes this is the case, that could have clear consequences for the current debate surrounding the Bush administration’s accountability for torture. [my emphasis]

Earlier reports had mentioned some surprise among observers that investigators had included the contents of emails, which makes me wonder whether the White House’s so-far success at eliminating emails from other periods–like September-October 2003–when they were breaking the law didn’t extend as far back as 2001 and 2002.That is, I wonder whether the surprise had as much to do with the fact that OPR managed to get emails between the White House and Yoo, as with the emails themselves.

Now, right off the bat, I can think of some dates that might make this more interesting. The warrantless wiretap program started in early October. But they were still writing new memos to authorize it (and eliminate the Fourth Amendment) for several months after the fact (though the OPR investigation into wiretapping is separate). They started torturing Abu Zubaydah before August 1, 2002, when Yoo’s first memos came out on it (I suspect the third still-classified memo may retroactively approve the earlier torture). And DOD started the torture regime before authorization for that went up the chain of command.

There are already a few memos where we know the illegal program started, only to be followed by a Yoo memo authorizing that program (there’s an August 1, 2002 one that I suspect may retroactively Read more

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