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Context of 'July 17, 2002: Rice Authorizes CIA to Implement Interrogation Plan for Zubaida'

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The house in Faisalabad, Pakistan, where Abu Zubaida is arrested.The house in Faisalabad, Pakistan, where Abu Zubaida is arrested. [Source: New York Times]Al-Qaeda leader Abu Zubaida is captured in Faisalabad, Pakistan. He is the first al-Qaeda leader considered highly important to be captured or killed after 9/11.
Zubaida Injured during Raid - A joint team from the FBI, the CIA, and the ISI, Pakistan’s intelligence agency, raids the house where Zubaida is staying. Around 3 a.m., the team breaks into the house. Zubaida and three others wake up and rush to the rooftop. Zubaida and the others jump to a neighbor’s roof where they are grabbed by local police who are providing back-up for the capture operation. One of Zubaida’s associates manages to grab a gun from one of the police and starts firing it. A shoot-out ensues. The associate is killed, several police are wounded, and Zubaida is shot three times, in the leg, stomach, and groin. He survives. About a dozen other suspected al-Qaeda operatives are captured in the house, and more are captured in other raids that take place nearby at the same time. [New York Times, 4/14/2002; Suskind, 2006, pp. 84-89] US intelligence had slowly been closing in on Zubaida’s location for weeks, but accounts differ as to exactly how he was found (see February-March 28, 2002). He had surgically altered his appearance and was using an alias, so it takes a few days to completely confirm his identity. [New York Times, 9/10/2006]
Link to Pakistani Militant Group - A later US State Department report will mention that the building Zubaida is captured in is actually a Lashkar-e-Toiba safehouse. Lashkar-e-Toiba is a Pakistani militant group with many links to al-Qaeda, and it appears to have played a key role in helping al-Qaeda operatives escape US forces in Afghanistan and find refuge in Pakistan (see Late 2001-Early 2002). [US Department of State, 4/30/2008]
Rendition - Not long after his arrest, Zubaida is interrogated by a CIA agent while he is recovering in a local hospital (see Shortly After March 28, 2002). He then is rendered to a secret CIA prison, where he is interrogated and tortured (see Mid-May 2002 and After). Throughout his detention, members of the National Security Council and other senior Bush administration officials are briefed about Zubaida’s captivity and treatment. [Senate Intelligence Committee, 4/22/2009 pdf file]
Is Zubaida a High-Ranking Al-Qaeda Leader? - Shortly after the arrest, the New York Times reports that “Zubaida is believed by American intelligence to be the operations director for al-Qaeda and the highest-ranking figure of that group to be captured since the Sept. 11 attacks.” [New York Times, 4/14/2002] But it will later come out that while Zubaida was an important radical Islamist, his importance was probably overstated (see Shortly After March 28, 2002).
Tortured While in US Custody - Once Zubaida has sufficiently recovered from his injuries, he is taken to a secret CIA prison in Thailand for more interrogation. [Observer, 6/13/2004; New York Review of Books, 3/15/2009] One unnamed CIA official will later say: “He received the finest medical attention on the planet. We got him in very good health, so we could start to torture him.” [Suskind, 2006, pp. 94-96, 100] Defense Secretary Donald Rumsfeld publicly vows that Zubaida will not be tortured, but it will later come out that he was (see Mid-May 2002 and After and April - June 2002). [New York Times, 4/14/2002]

Entity Tags: Pakistan Directorate for Inter-Services Intelligence, National Security Council, Donald Rumsfeld, Lashkar-e-Toiba, Central Intelligence Agency, Federal Bureau of Investigation, Al-Qaeda, Bush administration (43), Abu Zubaida

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Captured al-Qaeda operative Abu Zubaida (see March 28, 2002), after recovering somewhat from three gunshot wounds inflicted during his capture, is transferred to a secret CIA prison in Thailand, presumably the revamped Vietnam War-era base in Udorn. [Weiner, 2007, pp. 297; Washington Post, 4/22/2009] In late 2006, after being transferred to Guantanamo, Zubaida will tell representatives of the International Committee of the Red Cross the story of his interrogation in Thailand (see October 6 - December 14, 2006). Zubaida becomes what CIA interrogator John Kiriakou will later call “a test case for an evolving new role… in which the agency was to act as jailer and interrogator of terrorism suspects” (see September 17, 2001).
New Tactics To Be Used - Officials from the military’s Survival, Evasion, Resistance, and Escape (SERE) program are involved in Zubaida’s interrogations. SERE officials have prepared a program of so-called “harsh interrogation methods,” many of which are classified as torture under the Geneva Conventions and the Convention Against Torture (see December 2001 and July 2002). A 2009 Senate report (see April 21, 2009) will find: “At some point in the first six months of 2002, JPRA [the Joint Personnel Recovery Agency] assisted with the preparation of a [redacted name], sent to interrogate a high-level al-Qaeda operative.” Further investigation will prove that the person whose name will be redacted is, indeed, Zubaida. According to a June 20, 2002 memo, the SERE officials’ participation in the Zubaida interrogation is “training.” JPRA psychologist Bruce Jessen, one of the authors of the JPRA torture methodology (see January 2002 and After), suggests that “exploitation strategies” be used against Zubaida. Jessen’s collaborator on the torture proposal, James Mitchell, is present for Zubaida’s torture; Mitchell plays a central role in the decision to use what the CIA calls an “increased pressure phase” against Zubaida. [Washington Post, 4/22/2009]
First Weeks Shackled and Sleep-Deprived - Zubaida will begin his narrative after his initial, and successful, interrogation by FBI agents (see Late March through Early June, 2002). He spends the first weeks of his captivity shackled to a chair, denied solid food, and kept awake. In Zubaida’s words: “I woke up, naked, strapped to a bed, in a very white room. The room measured approximately [13 feet by 13 feet]. The room had three solid walls, with the fourth wall consisting of metal bars separating it from a larger room. I am not sure how long I remained in the bed. After some time, I think it was several days, but can’t remember exactly, I was transferred to a chair where I was kept, shackled by [the] hands and feet for what I think was the next two to three weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go [to] the toilet, which consisted of a bucket. Water for cleaning myself was provided in a plastic bottle. I was given no solid food during the first two or three weeks, while sitting on the chair. I was only given Ensure [a nutrient supplement] and water to drink. At first the Ensure made me vomit, but this became less with time. The cell and room were air-conditioned and were very cold. Very loud, shouting type music was constantly playing. It kept repeating about every 15 minutes, 24 hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise. The guards were American, but wore masks to conceal their faces. My interrogators did not wear masks. During this first two to three week period I was questioned for about one to two hours each day. American interrogators would come to the room and speak to me through the bars of the cell. During the questioning the music was switched off, but was then put back on again afterwards. I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water in my face.” In 2009, author Mark Danner will write: “One can translate these procedures into terms of art: ‘Change of Scenery Down.’ ‘Removal of Clothing.’ ‘Use of Stress Positions.’ ‘Dietary Manipulation.’ ‘Environmental Manipulation.’ ‘Sleep Adjustment.’ ‘Isolation.’ ‘Sleep Deprivation.’ ‘Use of Noise to Induce Stress.’ All these terms and many others can be found, for example, in documents associated with the debate about interrogation and ‘counter-resistance’ carried on by Pentagon and Justice Department officials beginning in 2002. Here, however, we find a different standard: the [proposed regulations say], for example, that ‘Sleep Deprivation’ is ‘not to exceed four days in succession,’ that ‘Dietary Manipulation’ should include ‘no intended deprivation of food or water,’ that ‘removal of clothing,” while ‘creating a feeling of helplessness and dependence,’ must be ‘monitored to ensure the environmental conditions are such that this technique does not injure the detainee.’ Here we are in a different place.”
CIA Team Moves In - The first weeks of Zubaida’s captivity are maintained by a small team of FBI agents and interrogators, but soon a team from the CIA’s Counterterrorism Center takes over. As Kiriakou will later recall: “We had these trained interrogators who were sent to his location to use the enhanced techniques as necessary to get him to open up, and to report some threat information.… These enhanced techniques included everything from what was called an attention shake, where you grab the person by their lapels and shake them, all the way up to the other end, which is waterboarding.” After the initial period of captivity, Zubaida is allowed to sleep with less interruption, stretched out naked and shackled on the bare floor. He is also given solid food for the first time in weeks—rice. A female doctor examines him and asks why he is still naked; he is, he will recall, “provided with orange clothes to wear.” The clothes only last a day, though: “[G]uards came into my cell,” Zubaida will recall. “They told me to stand up and raise my arms above my head. They then cut the clothes off of me so that I was again naked and put me back on the chair for several days. I tried to sleep on the chair, but was again kept awake by the guards spraying water in my face.”
Alternating Harsh and Lenient Treatments - For the next few weeks, Zubaida’s treatment veers from abusive to almost lenient. Mostly he is kept naked and confined to his cell, often suffering from intense cold in the frigid air-conditioned environment. One official later tells the ICRC that often he “seemed to turn blue.” Clothing is provided, then taken away. Zubaida will tell ICRC officials: “When my interrogators had the impression that I was cooperating and providing the information they required, the clothes were given back to me. When they felt I was being less cooperative the clothes were again removed and I was again put back on the chair.” For a time he is given a mattress to sleep on; sometimes he is “allowed some tissue paper to use when going to toilet on the bucket.” A month goes by with no interrogations. He will recall: “My cell was still very cold and the loud music no longer played but there was a constant loud hissing or crackling noise, which played 24 hours a day. I tried to block out the noise by putting tissue in my ears.” Then, “about two and half or three months after I arrived in this place, the interrogation began again, but with more intensity than before.” Danner will write that he isn’t sure if the wild swings in procedures are intentional, meant to keep Zubaida off-guard, or, as he will write, “resulted from disputes about strategy among the interrogators, who were relying on a hastily assembled ‘alternative set of procedures’ that had been improvised from various sources, including scientists and psychiatrists within the intelligence community, experts from other, ‘friendly’ governments, and consultants who had worked with the US military and now ‘reverse-engineered’ the resistance training taught to American elite forces to help them withstand interrogation after capture.” Danner notes that some CIA documents going back to the 1960s advocate subjecting the captive to sensory deprivation and disorientation, and instilling feelings of guilt, shame, and helplessness. The old CIA documents say that captives should be kept in a state of “debility-dependence-dread.” [New York Review of Books, 3/15/2009]
Justice Department's 'Ticking Bomb' Scenario - The August 2002 “golden shield” memo from the Justice Department (see August 1, 2002) will use what is often called the “ticking bomg scenario”—the supposition that a terror attack is imminent and only torture can extract time-critical information from a terrorist detainee to give US officials a chance to stop the attack—to justify Zubaida’s torture. According to CIA reports, Zubaida has information regarding “terrorist networks in the United States” and “plans to conduct attacks within the United States or against our interests overseas.” But Brent Mickum, who later becomes one of Zubaida’s attorneys, will say that he believes the Justice Department memo retroactively approved coercive tactics that had already been used. “If torture occurred before the memo was written, it’s not worth the paper it’s written on, and the writing of the memo is potentially criminal,” Mickum will note. [Washington Post, 4/22/2009]
Interrogations Continue in June - Sometime in June, Zubaida will once again be interrogated (see June 2002).

Entity Tags: Mark Danner, John Kiriakou, James Elmer Mitchell, Bruce Jessen, Al-Qaeda, Abu Zubaida, Bush administration (43), Central Intelligence Agency, Convention Against Torture, George Brent Mickum, Geneva Conventions, Federal Bureau of Investigation, Joint Personnel Recovery Agency, International Committee of the Red Cross

Timeline Tags: Torture of US Captives, Complete 911 Timeline

The CIA believes that recently captured al-Qaeda operative Abu Zubaida (see March 28, 2002) is withholding “imminent threat information” from his US interrogators. To that end, the CIA sends attorneys from its Office of General Counsel to meet with Attorney General John Ashcroft, National Security Adviser Condoleezza Rice, Rice’s deputy Stephen Hadley, White House counsel Alberto Gonzales, and other senior White House aides to discuss what the Senate Intelligence Committee will later term “the possible use of alternative interrogation methods that differed from the traditional methods used by the US military and intelligence community” (see April 2002). The CIA proposes several “alternative” methods that equate to torture, including waterboarding, for Zubaida. After the meeting, the CIA asks the Justice Department’s Office of Legal Counsel (OLC) to prepare an opinion about the legality of the proposed interrogation methods. The CIA provides the OLC with, in the committee’s words, “written and oral descriptions of the proposed techniques.” The CIA also provides the OLC with information about the medical and psychological effects of the military’s Survival, Evasion, Resistance, and Escape (SERE) training, which trains soldiers how to counter and resist torture and harsh interrogation techniques (see December 2001). [Senate Intelligence Committee, 4/22/2009 pdf file; BBC, 4/23/2009] Meanwhile, the CIA will send Zubaida to Thailand for torture (see March 2002 and April - June 2002).

Entity Tags: Condoleezza Rice, Abu Zubaida, Alberto R. Gonzales, Central Intelligence Agency, US Department of Justice, Stephen J. Hadley, Office of Legal Counsel (DOJ), John Ashcroft

Timeline Tags: Torture of US Captives

Accused al-Qaeda operative Abu Zubaida, having been tortured for months in a secret CIA prison in Thailand (see April - June 2002), has had a respite from the intensive interrogations he was initially subjected to. Now, though, the interrogations begin again, being what Zubaida will later recall as “more intens[e] than before.”
Intensified Interrogations - Zubaida will later tell officials of the International Committee of the Red Cross (ICRC): “Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow. Measuring perhaps in area [3 1/2 by 2 1/2 feet by 6 1/2 feet high]. The other was shorter, perhaps only [3 1/2 feet] in height. 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. I was also repeatedly slapped in the face.… I was then put into the tall black box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside.… They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. 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.”
In the Box - Zubaida will give detailed recollections of his time in the box: “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 three 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. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress. I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me.… I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before. I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold. This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation. During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved everyday. I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor. I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.” Author Mark Danner will note that, according to the ICRC report, Zubaida’s impression of being a “guinea pig” is accurate. Some of the techniques used on him will not be reported again—the weeks of sitting in shackles, the coffin-sized boxes. Other techniques, such as the waterboarding, the permanent shackling, the “cold cell,” the incessant loud music and noise, will be used frequently on later captives, as will the constant light and the repeated beatings and physical abuse.
Everything Authorized by Senior CIA, White House Officials - Danner will remind readers that the CIA interrogators never acted alone or with any degree of independence. Everything that is done and said to Zubaida is monitored by other officials on-site—guards, interrogators, doctors—and by senior CIA officials in Washington. CIA interrogator John Kiriakou will later tell a reporter: “It wasn’t up to individual interrogators to decide, ‘Well, I’m gonna slap him. Or I’m going to shake him. Or I’m gonna make him stay up for 48 hours.’ Each one of these steps… had to have the approval of the deputy director for operations. So before you laid a hand on him, you had to send in the cable saying, ‘He’s uncooperative. Request permission to do X.’ And that permission would come.… The cable traffic back and forth was extremely specific. And the bottom line was these were very unusual authorities that the agency got after 9/11. No one wanted to mess them up. No one wanted to get in trouble by going overboard.… No one wanted to be the guy who accidentally did lasting damage to a prisoner.” Danner also notes that shortly after Zubaida’s capture, the CIA briefed top White House officials, including Vice President Dick Cheney, National Security Adviser Condoleezza Rice, and Attorney General John Ashcroft, who, ABC News will later report, “then signed off on the [interrogation] plan” (see April 2002 and After and July 2002). During this time the White House is working with Justice Department officials to produce the so-called “golden shield” memo (see August 1, 2002) that will, supposedly, protect the White House and CIA from criminal charges. Even after the memo’s adoption, CIA Director George Tenet continues to tell top White House officials about the specific procedures being used on Zubaida and other prisoners, including techniques such as waterboarding, to ensure that the White House considered them legal. As ABC will later report, the briefings of principals were so detailed and frequent that “some of the interrogation sessions were almost choreographed.” [New York Review of Books, 3/15/2009]

Entity Tags: John Kiriakou, Abu Zubaida, Al-Qaeda, Central Intelligence Agency, International Committee of the Red Cross, Richard (“Dick”) Cheney, Mark Danner

Timeline Tags: Torture of US Captives

CIA attorneys meet with White House Counsel Alberto Gonzales, the Justice Department’s head of its criminal division, Michael Chertoff, and aides and lawyers from the National Security Council, Justice Department, and FBI. The meeting provides participants with an overview of the proposed interrogation plan for captured Islamist militant Abu Zubaida (see Mid-May, 2002). [Senate Intelligence Committee, 4/22/2009 pdf file] The CIA has already begun torturing Zubaida (see April - June 2002, Mid-May, 2002, Mid-May 2002 and After, Mid-May 2002 and After, and June 2002).

Entity Tags: Central Intelligence Agency, Federal Bureau of Investigation, Michael Chertoff, National Security Council, US Department of Justice, Alberto R. Gonzales, Abu Zubaida

Timeline Tags: Torture of US Captives

CIA Director George Tenet meets with National Security Adviser Condoleezza Rice. Rice tells Tenet that the CIA can begin its proposed interrogation plan for captured alleged al-Qaeda operative Abu Zubaida (see March 28, 2002 and July 13, 2002), advising him “that the CIA could proceed with its proposed interrogation” of Zubaida. Rice’s authorization is subject to a determination of legality by the Justice Department’s Office of Legal Counsel (see August 1, 2002). [Senate Intelligence Committee, 4/22/2009 pdf file; BBC, 4/23/2009] The CIA has already begun torturing Zubaida (see April - June 2002, Mid-May, 2002, Mid-May 2002 and After, Mid-May 2002 and After, and June 2002).

Entity Tags: Condoleezza Rice, George J. Tenet, Office of Legal Counsel (DOJ), US Department of Justice, Abu Zubaida, Central Intelligence Agency

Timeline Tags: Torture of US Captives

The Justice Department’s Office of Legal Counsel verbally informs the CIA that Attorney General John Ashcroft has concluded that the proposed interrogation techniques being used against captured Islamist militant Abu Zubaida (see April 2002, Mid-May, 2002, and July 17, 2002) are legal. [Senate Intelligence Committee, 4/22/2009 pdf file]

Entity Tags: US Department of Justice, Abu Zubaida, Central Intelligence Agency, John Ashcroft, Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives

Jay Bybee.Jay Bybee. [Source: Public domain]The Justice Department’s Office of Legal Counsel (OLC) sends a non-classified memo to White House Counsel Alberto Gonzales, offering the opinion that a policy allowing suspected al-Qaeda members to be tortured abroad “may be justified.” [US Department of Justice, 8/1/2002 pdf file] This memo will later be nicknamed the “Golden Shield” by insiders in the hopes that it will protect government officials from later being charged with war crimes (see April 2002 and After). [ABC News, 4/9/2008]
Multiple Authors - The 50-page “torture memo” is signed and authored by Jay S. Bybee, head of OLC, and co-authored by John Yoo, a deputy assistant attorney general. It is later revealed that Yoo authored the memo himself, in close consultation with Vice President Cheney’s chief adviser David Addington, and Bybee just signed off on it (see December 2003-June 2004). [Washington Post, 6/9/2004] Deputy White House counsel Timothy Flanigan also contributed to the memo. Addington contributed the claim that the president may authorize any interrogation method, even if it is plainly torture. Addington’s reasoning: US and treaty law “do not apply” to the commander in chief, because Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/25/2007]
Statute Only Prohibits 'Extreme Acts' - Gonzales had formally asked for the OLC’s legal opinion in response to a request by the CIA for legal guidance. A former administration official, quoted by the Washington Post, says the CIA “was prepared to get more aggressive and re-learn old skills, but only with explicit assurances from the top that they were doing so with the full legal authority the president could confer on them.” [Washington Post, 6/9/2004] “We conclude that the statute, taken as a whole,” Bybee and Yoo write, “makes plain that it prohibits only extreme acts.” Addressing the question of what exactly constitute such acts of an extreme nature, the authors proceed to define torture as the infliction of “physical pain” that is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Purely mental pain or suffering can also amount to “torture under Section 2340,” but only if it results “in significant psychological harm of significant duration, e.g. lasting for months or even years.” [Washington Post, 6/9/2004]
Torture Legal and Defensible - Bybee and Yoo appear to conclude that any act short of torture, even though it may be cruel, inhuman or degrading, would be permissible. They examine, for example, “international decisions regarding the use of sensory deprivation techniques.” These cases, they notice, “make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.” More astounding is Bybee and Yoo’s view that even torture can be defensible. “We conclude,” they write, “that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.” Inflicting physical or mental pain might be justified, Bybee and Yoo argue, “in order to prevent further attacks on the United States by the al-Qaeda terrorist network.” In other words, necessity or self-defense may justify torture. Moreover, “necessity and self-defense could provide justifications that would eliminate any criminal liability.” [Washington Post, 6/8/2004] International anti-torture rules, furthermore, “may be unconstitutional if applied to interrogations” of suspected terrorists. [US News and World Report, 6/21/2004] Laws prohibiting torture would “not apply to the president’s detention and interrogation of enemy combatants” in the “war on terror,” because the president has constitutional authority to conduct a military campaign. [Washington Post, 6/27/2004]
Protecting US Officials from Prosecution - In 2007, author and reporter Charlie Savage will write: “In case an interrogator was ever prosecuted for violating the antitorture law (see October 21, 1994 and January 26, 1998, Yoo laid out page after page of legal defenses he could mount to get the charges dismissed. And should someone balk at this strained interpretation of the law, Yoo offered his usual trump card: Applying the antitorture law to interrogations authorized by the president would be unconstitutional, since only the commander in chief could set standards for questioning prisoners.” [Savage, 2007, pp. 155-156]
Virtually Unrestricted Authority of President - “As commander in chief,” the memo argues, “the president has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy.” [Washington Post, 6/9/2004] According to some critics, this judgment—which will be echoed in a March 2003 draft Pentagon report (see March 6, 2003)—ignores important past rulings such as the 1952 Supreme Court decision in Youngstown Steel and Tube Co v. Sawyer, which determined that the president, even in wartime, is subject to US laws. [Washington Post, 6/9/2004] The memo also says that US Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/27/2004]
Ashcroft Refuses to Release Memo - After the memo’s existence is revealed, Attorney General John Ashcroft denies senators’ requests to release it, and refuses to say if or how the president was involved in the discussion. “The president has a right to hear advice from his attorney general, in confidence,” he says. [New York Times, 6/8/2004; Bloomberg, 6/8/2004; Washington Post, 6/9/2004] Privately, Ashcroft is so irritated by Yoo’s hand-in-glove work with the White House that he begins disparagingly referring to him as “Dr. Yes.” [New York Times, 10/4/2007]
Only 'Analytical' - Responding to questions about the memo, White House press secretary Scott McClellan will claim that the memo “was not prepared to provide advice on specific methods or techniques,” but was “analytical.” But the 50-page memo seems to have been considered immensely important, given its length and the fact that it was signed by Bybee. “Given the topic and length of opinion, it had to get pretty high-level attention,” Beth Nolan, a former White House counsel from 1999-2001, will tell reporters. This view is confirmed by another former Office of Legal Counsel lawyer who says that unlike documents signed by deputies in the Office of Legal Counsel, memorandums signed by the Office’s head are considered legally binding. [Washington Post, 6/9/2004]
Memo Will be Withdrawn - Almost two years later, the OLC’s new head, Jack Goldsmith, will withdraw the torture memos, fearing that they go far beyond anything countenanced by US law (see December 2003-June 2004).
Memo Addresses CIA Concerns - The administration, particularly the axis of neoconservatives centered around Cheney’s office, has enthusiastically advocated the use of violent, abusive, and sometimes tortuous interrogation techniques, though the US has never endorsed such tactics before, and many experts say such techniques are counterproductive. The CIA, responding to the desires from the White House, hastily put together a rough program after consulting with intelligence officials from Egypt and Saudi Arabia, where detainees are routinely tortured and killed in captivity, and after studying methods used by former Soviet Union interrogators. The legal questions were continuous. The former deputy legal counsel for the CIA’s Counterterrorist Center, Paul Kelbaugh, recalls in 2007: “We were getting asked about combinations—‘Can we do this and this at the same time?… These approved techniques, say, withholding food, and 50-degree temperature—can they be combined?’ Or ‘Do I have to do the less extreme before the more extreme?’” The “torture memo” is designed to address these concerns. [New York Times, 10/4/2007]

Entity Tags: John C. Yoo, Paul Kelbaugh, Timothy E. Flanigan, Scott McClellan, John Ashcroft, Richard (“Dick”) Cheney, Jay S. Bybee, Office of Legal Counsel (DOJ), David S. Addington, Alberto R. Gonzales, Beth Nolan, Al-Qaeda, Charlie Savage, Central Intelligence Agency, Jack Goldsmith

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Former Bush National Security Adviser and Secretary of State Condoleezza Rice, who has returned to Stanford University to teach political science and serve as a senior fellow at the university’s conservative Hoover Institute [Stanford University News, 1/28/2009] , refuses to take any responsibility for the Bush administration’s torture policies. All she ever did, she tells students, was “convey… the authorization of the administration” (see Late 2001-Early 2002, April 2002 and After, Mid-May, 2002, July 17, 2002, September or October 2002, Summer 2003, May 3, 2004, and April 9, 2008). However, Rice adds, since President Bush authorized the torture program, it was by definition legal, no matter what domestic law or international treaties stipulated. “The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture” (see October 21, 1994), she says. “So that’s—and by the way, I didn’t authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department’s clearance. That’s what I did.” Asked if waterboarding constitutes torture, Rice responds: “I just said, the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.” Ali Frick, a reporter with the progressive news Web site Think Progress, writes in response: “Rice is attempting to hide her central role in approving torture.… Rice’s opinion that a presidential authorization—‘by definition’—grants something legality is deeply disturbing. In fact, the United States—and its president—are bound by US statute and international treaties that ban the use of cruel, humiliating, degrading treatment, the infliction of suffering, and the attempt to extract coerced confessions. Memo to Rice: Bush may have been ‘the Decider,’ but he didn’t have the authority to make an illegal act magically legal.” [Think Progress, 4/30/2009] In the same conversation, Rice seems to say that al-Qaeda poses a greater threat to the US than did Nazi Germany, and again denies that the US ever tortured anyone. A student asks, “Even in World War II facing Nazi Germany, probably the greatest threat that America has ever faced—” and Rice interjects, “Uh, with all due respect, Nazi Germany never attacked the homeland of the United States.” “No, but they bombed our allies—” the student replies, and Rice once again interrupts: “No, just a second, just a second. Three thousand Americans died in the Twin Towers and the Pentagon [referring to the 9/11 attacks].” The student observes, “500,000 died in World War II—” to which Rice replies, “Fighting a war in Europe.” The student continues, ”—and yet we did not torture the prisoners of war.” Rice says, “We didn’t torture anybody here either.” [Think Progress, 4/30/2009]

Entity Tags: US Department of Justice, Bush administration (43), Ali Frick, Al-Qaeda, Convention Against Torture, George W. Bush, Condoleezza Rice

Timeline Tags: Torture of US Captives

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