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. Also, the description of Abu Zubaydah as a "test case" certainly accords with the ICRC report–particularly the way it shows interrogators experimenting with different techniques.

This article also reveals a detail made clear in the Bybee Memo.The interrogation started with just oral guidelines.

Three former intelligence officials said the techniques had been drawn up on the basis of legal guidance from the Justice Department, but were not yet supported by a formal legal opinion.

The Bybee Memo states, 

This letter memorializes our previous oral advice, given on July 24, 2002 and July 26, 2002.

(Though I suspect that’s not a comprehensive description of the timing–I would bet that chronology pre-dates July 24.)

The FBI-CIA Dispute about Abu Zubdaydah

Now, one of the things I find most intriguing about Johnston’s description of the squabble between FBI and CIA are the terms used to describes Abu Zubaydah’s cooperation or lack thereof.

In Thailand, the new C.I.A. team concluded that under standard questioning Mr. Zubaydah was revealing only a small fraction of what he knew, and decided that more aggressive techniques were warranted.

[snip]

F.B.I. agents on the scene angrily protested the more aggressive approach, arguing that persuasion rather than coercion had succeeded. But leaders of the C.I.A. interrogation team were convinced that tougher tactics were warranted and said that the methods had been authorized by senior lawyers at the White House.

[snip]

Crucial aspects of what happened during Mr. Zubaydah’s interrogation are sharply disputed. Some former and current government officials briefed on the case, who were more closely allied with law enforcement, said Mr. Zubaydah cooperated with F.B.I. interviewers until the C.I.A. interrogation team arrived. They said that Mr. Zubaydah’s resistance began after the agency interrogators began using more stringent tactics.

Other officials, more closely tied to intelligence agencies, dismissed that account, saying that the C.I.A. had supervised all interviews with Mr. Zubaydah, including those in which F.B.I. agents asked questions. These officials said that he proved a wily adversary. “He was lying, and things were going nowhere,” one official briefed on the matter said of the early interviews. “It was clear that he had information about an imminent attack and time was of the essence.”

Several officials said the belief that Mr. Zubaydah might have possessed critical information about a coming terrorist operation figured significantly in the decision to employ tougher tactics, even though it later became apparent he had no such knowledge.

“As the president has made clear, the fact of the matter is that Abu Zubaydah was defiant and evasive until the approved procedures were used,” one government official said.

We’ve long known that the FBI insisted they had gotten valuable information from Abu Zubaydah from persuasion. We’ve long known that the CIA focuses instead on purportedly valuable information they got through torture. But the chronology here is critical: FBI is interrogating Abu Zubaydah. CIA takes over and that new team–almost immediately, it seems–decides Abu Zubaydah is withholding information. At least partly because Abu Zubaydah had not produced any information about an impending attack, the CIA pushed for more coercion. But always, for the CIA partisans in this fight, there is the claim that "he was defiant and evasive until the approved procedures were used."

The torture memos offer one reason for that formula, I think–indeed, they explain the furor of this debate. 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]

That is, the entire memo pre-approving their actions is premised on CIA’s representation that, first, Abu Zubaydah was evasive, and second, that he had more information. That’s got to be one reason the CIA guys are so adamant on this point. It’s their legal lifeline, and if that fact is challenged–as, indeed, the CIA guys knew it to be at the time–then their entire legal cover for their actions falls apart. 

And look at how Bradbury enshrines that restriction in his May 10, 2005 memo (recall that this memo formally superseded the Bybee Memo, though it "confirms the conclusion of [Bybee Memo] that the use of these techniques on a particular high value al Qaeda detainee, subject to the limitations herein, would not violate sections 2340-2340A," so interrogators were relying on this memo as well).

You have explained that the waterboard technique is used only if: (1) the CIA has credible intelligence that a terrorist attack is imminent; (2) there are "substantial and credible indicators the subject has actionable intelligence that can prevent, disrupt or delay this attack"; and (3) other interrogation methods have failed or are unlikely to yield actionable intelligence in time to prevent the attack. 

In addition, in the May 30 Bradbury memo, he cited a March 2, 2005 "Effectiveness Memo" and April 15, 2005 "Briefing Notes on the Value of Detainee Reporting" that make very specific claims about what they got through torture. For example, the "Briefing Notes" claim Abu Zubaydah only revealed KSM’s identity after the use of enhanced interrogation.

Interrogations of Zubaydah–again, once enhanced techniques were employed–furnished detailed information regarding al Qaeda’s "organizational structure, key operatives, and modus operandi" and identified KSM as the mastermind of the September 11 attacks. 

The entire edifice of legal cover the CIA built themselves rests on the premise that 1) Abu Zubaydah was uncooperative and 2) Abu Zubaydah was hiding critical intelligence. Sure, the CIA guys may have believed it at the time (or they may have said those things to win their turf war and to get the chance to try out their fancy new techniques on Abu Zubdaydah). But the further we get from that time and the more that claim is called into question, the more important defending the claim becomes legally.

Because that’s all they’ve got keeping them out of the pokey. 

I’ve put this detail in a series of posts, but it really deserves a full post. According to the May 30, 2005 Bradbury memo, Khalid Sheikh Mohammed was waterboarded 183 times in March 2003 and Abu Zubaydah was waterboarded 83 times in August 2002.

On page 37 of the OLC memo, in a passage discussing the differences between SERE techniques and the torture used with detainees, the memo explains:

The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah. IG Report at 90, and 183 times during March 2003 in the interrogation of KSM, see id. at 91.

Note, the information comes from the CIA IG report which, in the case of Abu Zubaydah, is based on having viewed the torture tapes as well as other materials. So this is presumably a number that was once backed up by video evidence.

The same OLC memo passage explains how the CIA might manage to waterboard these men so many times in one month each (though even with these chilling numbers, the CIA’s math doesn’t add up).

…where authorized, it may be used for two "sessions" per day of up to two hours. During a session, water may be applied up to six times for ten seconds or longer (but never more than 40 seconds). In a 24-hour period, a detainee may be subjected to up to twelve minutes of water appliaction. See id. at 42.  Additionally, the waterboard may be used on as many as five days during a 30-day approval period.

So: two two-hour sessions a day, with six applications of the waterboard each = 12 applications in a day. Though to get up to the permitted 12 minutes of waterboarding in a day (with each use of the waterboard limited to 40 seconds), you’d need 18 applications in a day.  Assuming you use the larger 18 applications in one 24-hour period, and do 18 applications on five days within a month, you’ve waterboarded 90 times–still just half of what they did to KSM.

The CIA wants you to believe waterboarding is effective. Yet somehow, it took them 183 applications of the waterboard in a one month period to get what they claimed was cooperation out of KSM. 

That doesn’t sound very effective to me. 

Sign the petition telling Attorney General Eric Holder to appoint a special prosecutor to investigate torture here.

Update: Here’s one reason to demand a special prosecutor to investigate these actions. In addition to revealing the sheer number of times KSM and Abu Zubaydah were waterboarded, the memos reveal that the interrogators who waterboarded these men went far beyond even the expansive  guidelines for torture described in the Bybee Memo, notably by dumping water onto their nose and mouth, rather than dribbing it on.

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]

There’s been a lot of discussion about whether those who did what the OLC memos authorized should be prosecuted. But in the case of those who waterboarded KSM and Abu Zubaydah, that’s irrelevant, because they did things the OLC memos didn’t authorize.

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.

Though we are not allowed to read that in the memos, the response to the IG Report appears to have been at least implicitly acknowledged in both. The two May 10, 2005 memos were were faxed with a two page cover sheet, and the first memo refers to the IG Report as if it has already been cited, so it may have been mentioned in the cover sheet or in earlier correspondence on the memo. [Correction: Footnote 7 cites the IG Report directly.] And the May 30 memo includes at least one long redacted passage (on page 4) that may contextualize the entire memo in reference to the IG Report’s conclusion that the CIA’s interrogation program violated the CAT. (The passage in question appears to refer to descriptions of the interrogation program, which the IG Report did in detail; yet, as Mary notes, Bradbury does not use the actual descriptions from the IG report when he describes and declares legal the techniques. This allows him to ignore several inconvenient facts revealed in the IG Report.)

More importantly, the entire point of both memos is basically to respond to the IG Report’s conclusion that CIA’s interrogation program violated CAT. The May 10 memo, for example, explains that the US complies with the CAT with USC 2340-2340A, and then proceeds to argue that the techniques used do not violate USC 2340-2340A, therefore those techniques do not violate the CAT. The May 30 memo basically uses a technicality–that none of the torture is conducted on US soil and therefore none of it is subject to Article 16. It goes on, then, to redefine the requirements of CAT to prohibit anything that "shocks the conscience." By making a thoroughly unconvincing claim that none of the techniques shock the conscience, Bradbury then claims that even if they were seen to be subject to Article 16, they would still comply. In both cases, however, the purpose is the same: to insist that–contrary to what the IG Report concluded–the CIA interrogation program did comply with the CAT. 

Yet in arguing against the IG Report, Bradbury reveals much of what the IG Report finds so problematic. It reveals:

• CIA interrogators were not performing waterboarding as it had been approved in the August 2002 Bybee Memo; in particular, they were repeating the process more frequently (83 times for AZ and 183 for KSM) and using much more water than described in the Bybee Memo
• By CIA’s own admission, they used waterboarding with Abu Zubaydah at a time when he was already completely compliant with interrogators
• No "objective" doctors had been involved in the interrogation sessions (the CIA subsequently added them to its program)
• It appears that after the CIA integrated doctors into the program, they lowered, by three and a half days, the length of time a detainee could be kept awake

In other words, the Bradbury memos basically prove that waterboarding, as practiced by the CIA (as distinct from how they were describing it), was out of control in several ways (and therefore probably illegal even according to Yoo’s descriptions). They also suggest that the CIA recognized they were using sleep deprivation far more than was safe, even according to their own complicit doctors. Both of the most problematic aspect of the CIA program, the Bradbury memos suggest, had been deemed unsafe as practiced.

Yet even while presenting this proof, Bradbury concludes that the interrogation programs were legal. More troubling even than Bradbury’s crappy legal writing, then, is the way his own memos prove the program was unsafe even while declaring it legal. 

Here’s a summary of what appears in each of the two memos (I didn’t find any obvious references to the IG Report in the second May 10, 2005 memo).

References in the May 10 "Techniques" memo 

Two references to the participation of doctors and psychologists in interrogations (5)

"Medical and, as appropriate, psychological personnel shall be physically present at, or reasonably available to, each Detention Facility. Medical personnel shall check the physical condition of each detainee at intervals appropriate to the circumstances and shall keep appropriate records."

Medical and psychological personnel are on-scene throughout (and, as detailed below, physically present or otherwise observing during the application of many techniques, including all techniques involving physical contact with detainees) and "[d]aily physical and psychological evaluations are continued through the period of [enhanced interrogation technique] use. [brackets Bradbury’s]

A reference to the application of SERE techniques to torture (6)

A footnoted description of how waterboarding as used in torture differs from the way it is used in SERE training (13)

A footnote admitting that the IG report criticized the reference to SERE training as a basis for justifying waterboarding, given the differences between the way it was used (13)

A reference to an IG complaint that medical personnel were not involved in the interrogations (29)

We note that this involvement 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.

A footnote describing the IG report’s description of sleep deprivation (35)

The IG Report described the maximum allowable period of sleep deprivation at that time as 264 hours or 11 days. See IG Report at 15. You have informed us that you have since established a limit of 180 hours, that in fact no detainee has been subjected to more than 180 hours of sleep deprivation, and that sleep deprivation will rarely exceed 120 hours. To date, only three detainees have been subjected to sleep deprivation for more than 96 hours.

A long footnote describing the difference between how Yoo/Bybee described waterboarding (and how it was used in SERE) and how it was implemented in practice (41)

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.") see also id. at 14 n14. The Inspector General further reported that "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." Id at 21 n26. We have carefully considered the IG Report and discussed it with OMS personnel. 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.

Another long footnote discussing why SERE has discontinued the use of waterboarding in all except Navy SERE training. (42)

References in the May 30 memo

A reference to Abu Zubaydah’s seniority in Al Qaeda upon capture (6)

A discussion of the use of waterboarding with (at least) al-Nashiri. (8)

The CIA used the waterboard extensively in the interrogations of KSM and Zubaydah, but did so only after it became clear that standard interrogation techniques were not working. Interrogators used enhanced techniques in the interrogation of al-Nashiri with notable results as early as the first day. See IG Report at 35-36. Twelve days into the interrogation, the CIA subjected al-Nashiri to one session of the waterboard during which water was applied two times. See id. at 36. (Note this section immediately precedes the discussion of videotapes.)

Use of the IG report to support a claim that torture provides information; "describing increase in intelligence reports attributable to use of enhanced techniques" (9)

A paragraph describing how information from lower-level detainees is used to "probe the high value detainees further" (the citation is misused to argue that the program cannot be judged based on the individual pieces of information elicited; 9)

Two references to the application of SERE techniques to torture (12, 37)

A long footnote admitting that CIA used torture when they didn’t need to with Abu Zubaydah (31)

This is not to say that the interrogation program has worked perfectly. According to the IG Report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information. See IG report at 83-85. On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements with CIA Headquarters still believed he was withholding information. [Redaction of more than one full line] See id, at 84. At the direction of CIA Headquarters interrogators, therefore used the waterboard one more time on Zubaydah. [Redaction of ~3/4 of a line] See id, at 84-85.

This example, however, does not show CIA “conduct [that is] intended to injure in some way unjustifiable by any government interest,” or “deliberate indifference” to the possibility of such unjustifiable injure. Lewis, 523 U.S. at 849. As long as the CIA reasonably believed that Zubaydah continued to withhold sufficiently important information, use of the waterboard was supported by the Government’s interest in protecting the Nation from subsequent terrorist attacks. The existence of a reasonable, good faith belief is not negated because the factual predicates for that belief are subsequently determined to be false. Moreover, in the Zubaydah example, CIA Headquarters dispatched officials to observe the last waterboard session. These officials reported that enhanced techniques were no longer needed. See IG Report at 85. Thus the CIA did not simply rely on what appeared to be credible intelligence but rather ceased using enhanced techniques despite this intelligence.

A footnote describing a discussion about the CIA’s intermittent involvement in interrogation (32)

The number of times Abu Zubaydah (83) and Khalid Sheikh Mohammed (183) were water boarded (37)

Update: Fixed my dates. Update: Fixed the waterboard numbers for AZ.

Update, 6/22/09: Added some missing references to mentions of the IG report.

The May 10, 2005 "Techniques" memo makes it clear that the torturers who claim the Bybee memo legalized their water-boarding of Khalid Sheikh Mohammed and Abu Zubaydah are wrong.

That’s because the torturers didn’t do what the memo authorized. In a footnote on page 41, it says:

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.") see also id. at 14 n14. The Inspector General further reported that "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." Id at 21 n26. We have carefully considered the IG Report and discussed it with OMS personnel. 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. [my emphasis]

In other words, the interrogators were dumping water on AZ’s and KSM’s faces and repeating that treatment over and over and over.

Without any legal authorization to do so, no matter how bogus.

It’s time this torturer faced some  "poignant and convincing" consequences for his actions. 

And note, this is precisely why the torture tapes were destroyed. CIA has admitted that the guys waterboarding Abu Zubaydah broke the law. That tape was the irrefutable evidence of who did what. 

Update: Fixed my dates.

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, 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.

Nowhere else, significantly, does Yoo feel the need to quote so selectively and in such detail about what CIA Acting Counsel John Rizzo had represented to him.

Meanwhile, this is what Dan Coleman–an FBI guy with deep knowledge of al Qaeda–had to say about AZ in Ron Suskind’s One Percent Doctrine:

Meanwhile, Dan Coleman and other knowledgeable members of the tribe of al Qaeda hunters at CIA were reading Zubaydah’s top secret diary and shaking their heads. 

"This guy is insane, certifiable, split personality," Coleman told a top official at FBI after a few days reviewing the Zubaydah haul. 

Two different people reading the same diary. One cherry-picks from it to claim AZ exhibited no evidence of "mood disturbance," whereas another reads the same diary and concludes the guy is nuts.

I might give Yoo and Rizzo equal weight with Coleman in terms of who more credibly measured AZ’s mental state. But the second time Yoo discusses AZ’s mental state, there’s a half paragraph redacted.

The mental health experts that you have consulted have indicated that the psychological impact of a course of conduct must be assessed with reference to the subject’s psychological history and current mental health status. The healthier the individual, the less likely that the use of anyone procedure or set of procedures as a course of conduct will result in prolonged mental harm. A comprehensive psychological profile of Zubaydah has been created. In creating this profile, your personnel drew on direct interviews, Zubaydah’s diaries, observation of Zubaydah since his capture, and information from other sources such as other intelligence and press reports. [half paragraph redacted]

If I had to guess, that half-paragraph shows Yoo’s response to the Coleman claims Yoo had to have known about–and those claims didn’t stand to reason so they were redacted.

There are a number of other discrepancies where existing resources appear far more credible than the information that OLC used (either knowingly or not) on which to found their memos.

For example, there’s the claim that detainees deprived of sleep are not–at the same time–being physically abused.

The shackling [to deprive of sleep] is used only as a passive means of keeping the detainee awake and, in both the tightness of the shackles and the positioning of the hands, is not intended to cause pain. A detainee, for example, will not be allowed to hang by his wrists.

[snip]

Because sleep deprivation does not involve physical pain and would not be expected to to cause extreme physical discomfort to the detainee, the extended duration of sleep deprivation … is not a sufficient factor alone to constitute severe physical suffering.

The ICRC, on the other hand, reported that 10 of 14 high value detainees complained of being hung by their wrists. 

Prolonged stress standing position, naked, held with the arms extended and chained above the head, as alleged by ten of the fourteen, for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves. 

And here’s how the ICRC described the sleep patterns of those shackled with their hands over their heads. 

Although this position prevented most detainees from sleeping, three of the detainees stated that they did fall asleep once or morewhile shackled in this position. These include Mr Khaled Shaik Mohammedand Mr Bin Attash;the third did not wish his name to be transmitted to the authorities. When they did fall asleep held in this position, the whole weight of their bodies was effectively suspended from the shackled  wrists, transmitting the strain through the arms to the shoulders.

I hate to say it, but the 10 high value detainees, each reporting the same treatment independently, are a lot more credible than Steven Bradbury repeating John Rizzo’s empty assurances.

Which suggests that, rather than rebutting "erroneous and inflammatory assumptions," the real concern the release of these memos ought to raise is the misrepresentations CIA apparently made to DOJ. By no means do I mean to excuse John Yoo and Steven Bradbury for their "banality." But John Rizzo was lying. Blatantly. In his claims to OLC as he tried to get stuff approved. 

Contrary to Obama’s suggestion, these memos should not correct any assumptions we’ve made about the torture our government conducted in our name. Rather, they should make it crystal clear that John Rizzo lied repeatedly about what the CIA was doing.

By all means, let’s make sure that Yoo and Bradbury (and Judge Bybee) pay for their legal rationalizations. But let’s include John Rizzo in there for producing the lies that abetted this legal abomination. 

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.

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, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

No mention of those who wrote these memos. Does that mean we can prosecute Yoo and Bradbury?

Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

Not gonna work, Obama. If we’re a nation of laws, then we cannot let those who have broken the laws to go unpunished. That’s not retribution. That’s what "nation of laws" means. 

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.

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.

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. 

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.