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Context of 'September 25, 2002: Administration Lawyers Give ‘Green Light’ for Harsh Interrogations at Guantanamo'

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The US Senate ratifies the international Convention Against Torture, originally proposed by the United Nations in 1985. The treaty bans any officials from signatory nations from inflicting “torture and other cruel, inhuman, or degrading treatment or punishment” on prisoners in order to gain information. It also establishes the UN Committee against Torture (UNCAT). The ban is absolute and cannot be waived: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.” [United Nations High Commissioner for Human Rights, 12/10/1984; Savage, 2007, pp. 155] The treaty also forbids signatory nations from sending detainees to other countries if there is a reasonable expectation that they may be tortured. [United Nations High Commissioner for Human Rights, 12/10/1984; Human Rights Web, 1/25/1997]

Entity Tags: United Nations Committee against Torture, Convention Against Torture, United Nations

Timeline Tags: Civil Liberties

Law professor John Yoo writes a lengthy essay for the California Law Review entitled “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” in which he argues that the Founding Fathers intended to empower presidents to launch wars without Congressional permission. Yoo has clerked for conservative judge Laurence Silberman and equally conservative Supreme Court Justice Clarence Thomas, and served for a year as counsel to then-Senate Judiciary Committee Chairman Orrin Hatch (R-UT). He has become a regular speaker at Federalist Society events, the informal but influential group of conservative lawyers, judges, and legal scholars who will come to have so much influence in the Bush administration. You argues that for generations, Constitutional scholars have misread the Constitution: the Founders actually supported, not repudiated, the British model of executive power that gave the king the sole power of declaring war and committing forces to battle. The Constitution’s granting of the legislature—Congress—the power to “declare war” is merely, Yoo writes, a reference to the ceremonial role of deciding whether to proclaim the existence of a conflict as a diplomatic detail. The Founders always intended the executive branch to actually declare and commence war, he writes. Most other Constitutional scholars will dismiss Yoo’s arguments, citing notes from the Constitutional Convention that show the Founders clearly intended Congress, not the president, to decide whether to commit the country to war. One of those Founders, James Madison, wrote in 1795 that giving a president the unilateral ability to declare war “would have struck, not only at the fabric of the Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.” [Savage, 2007, pp. 80-81] Yoo will go on to join the Bush administration’s Office of Legal Counsel, and write numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002).

Entity Tags: Federalist Society, John C. Yoo

Timeline Tags: Civil Liberties

The US enacts a law banning torture or abuse by any government official or employee. Title 18 of the US Code, Chapter 113C, Section 2340 bans US officials anywhere in the world from intentionally inflicting “severe physical or mental pain or suffering” upon another person in their control. Violation of this statute would earn the convicted official up to 20 years in prison; if a detainee dies as a result of the abuse, the convicted official can be sentenced to death. Any American official who conspires to have a prisoner abused is subject to the same penalties. [Legal Information Institute, 1/26/1998; Savage, 2007, pp. 155]

Timeline Tags: Torture of US Captives

Attendees of the Malaysian summit. Top row, from left: Nawaf Alhazmi, Khalid Almihdhar, Khalid Shaikh Mohammed. Middle row, from left: Khallad bin Attash, Abd al-Rahim al-Nashiri, Hambali. Bottom row, from left: Yazid Sufaat, Ramzi bin al-Shibh, Abu Bara al-Taizi. Attendees of the Malaysian summit. Top row, from left: Nawaf Alhazmi, Khalid Almihdhar, Khalid Shaikh Mohammed. Middle row, from left: Khallad bin Attash, Abd al-Rahim al-Nashiri, Hambali. Bottom row, from left: Yazid Sufaat, Ramzi bin al-Shibh, Abu Bara al-Taizi. [Source: FBI]About a dozen of Osama bin Laden’s trusted followers hold a secret, “top-level al-Qaeda summit” in the city of Kuala Lumpur, Malaysia. [CNN, 8/30/2002; San Diego Union-Tribune, 9/27/2002] According to an unnamed senior CIA official, before the summit started, the CIA learned that “11 young guys” were going to attend, and “young guys” is slang for operatives traveling. [Bamford, 2008, pp. 18] Plans for the October 2000 bombing of the USS Cole (see October 12, 2000) and the 9/11 attacks are discussed. [USA Today, 2/12/2002; CNN, 8/30/2002] At the request of the CIA, the Malaysian Secret Service monitors the summit and then passes the information on to the US (see January 5-8, 2000 and Shortly After). Attendees of the summit are said to include:
Nawaf Alhazmi and Khalid Almihdhar - The CIA and FBI will later miss many opportunities to foil the 9/11 plot through Alhazmi and Almihdhar and the knowledge of their presence at this summit. The CIA already knows many details about these two by the time the summit begins (see January 2-4, 2000), and tracked Almihdhar as he traveled to it (see January 2-5, 2000).
Yazid Sufaat - Sufaat is a Malaysian who owns the condominium where the summit is held. He is also a trained biologist and is said to be a leading figure in al-Qaeda’s attempts to get a biological or chemical weapon. [New York Times, 1/31/2002; Newsweek, 6/2/2002] Malaysian officials also recognize Sufaat from summit surveillance photos, as he is a long-time Malaysian resident (see Shortly After January 8, 2000). [New Straits Times, 2/10/2002] A possibility to expose the 9/11 plot through Sufaat’s presence at this summit will later be missed in September 2000 (see September-October 2000). Sufaat will travel to Afghanistan in June 2001 and be arrested by Malaysian authorities when he returns to Malaysia in late 2001 (see December 19, 2001). [Australian, 12/24/2002] He will be released in 2008 (see December 4, 2008).
Hambali - An Indonesian militant known as Hambali, or Nurjaman Riduan Isamuddin [BBC, 8/15/2003] , was heavily involved in the Bojinka plot, an early version of the 9/11 plot (see January 6, 1995 and June 1994). [CNN, 3/14/2002; CNN, 8/30/2002] The FBI was aware of who he was and his connections to the Bojinka plot at least by 1999 and identified a photograph of him by that time (see May 23, 1999). He will be arrested by Thai authorities in August 2003 (see August 12, 2003). [CNN, 8/14/2003; CBS News, 8/15/2003] Malaysian officials recognize Hambali from summit surveillance photos, as he is a long-time Malaysian resident. But the US does not tell them of his Bojinka connections, so they will not know to arrest him after the summit is over (see Shortly After January 8, 2000). [New Straits Times, 2/10/2002]
Khalid Shaikh Mohammed - Mohammed is sometimes referred to as “KSM,” an al-Qaeda leader and the alleged “mastermind” of the 9/11 attacks. The US has known KSM is an Islamic militant since the exposure of Operation Bojinka in January 1995 (see January 6, 1995), and knows what he looks like. US officials will state that they only realized the summit was important in 2001, but the presence of KSM should have proved its importance. [Los Angeles Times, 2/2/2002] Although the possible presence of KSM at this summit will be disputed by US officials, one counterterrorism expert will testify before the 9/11 Commission in 2003 that he has access to transcripts of KSM’s interrogations since his capture, and that KSM has admitted leading this summit and telling the attendees about a planes-as-weapons plot targeting the US (see July 9, 2003). [Newsweek, 7/9/2003; New York Post, 7/10/2003] Many other media reports will identify him as being there. [Independent, 6/6/2002; CNN, 8/30/2002; CNN, 11/7/2002; Canadian Broadcasting Corporation, 10/29/2003] For instance, according to Newsweek: “Mohammed’s presence would make the intelligence failure of the CIA even greater. It would mean the agency literally watched as the 9/11 scheme was hatched—and had photographs of the attack’s mastermind… doing the plotting.” [Newsweek, 7/9/2003] In Hambali’s 2008 Guantanamo file, it will be mentioned that KSM stays a week at Sufaat’s condominium with Alhazmi and Almihdhar, which would seem to make clear that KSM is there for the entire duration of the summit (see Early January 2000). [US Department of Defense, 10/30/2008]
Khallad bin Attash - Khallad bin Attash, a “trusted member of bin Laden’s inner circle,” is in charge of bin Laden’s bodyguards, and serves as bin Laden’s personal intermediary at least for the USS Cole bombing. [Newsweek, 9/20/2001 pdf file] He is also thought to be a “mastermind” of that attack. Attash is reportedly planning to be one of the 9/11 hijackers, but will be unable to get a US visa. [9/11 Commission, 6/16/2004, pp. 8] US intelligence had been aware of his identity as early as 1995. [US Congress, 9/18/2002] A possibility to expose the 9/11 plot through bin Attash’s presence at this summit will be missed in January 2001 (see January 4, 2001). Bin Attash had been previously arrested in Yemen for suspected terror ties, but was let go (see Summer 1999). [Contemporary Southeast Asia, 12/1/2002] He will be captured in Pakistan by the US in April 2003 (see April 29, 2003). In 2008, Newsweek will report that bin Attash confessed during interrogation that, while staying at Sufaat’s condominium, he and Alhazmi talked “about the possibility of hijacking planes and crashing them or holding passengers as hostages.” [Newsweek, 12/16/2008]
Abd al-Rahim al-Nashiri - Al-Nashiri is one of al-Qaeda’s top field commanders and operates out of Malaysia while 9/11 is being prepared. [Los Angeles Times, 10/10/2001; Gunaratna, 2003, pp. 188; Graham and Nussbaum, 2004, pp. 59] He was involved in an arms smuggling plot (see 1997) and the East African embassy bombings (see August 22-25 1998), in which his cousin was martyred (see 10:35-10:39 a.m., August 7, 1998). He also organized the attack against the USS The Sullivans (see January 3, 2000), and will be involved in the attacks against the USS Cole (see October 12, 2000) and the Limburg (see October 6, 2002). He will be arrested in the United Arab Emirates in November 2002 (see Early October 2002). An al-Qaeda operative identified a photo of al-Nashiri for the FBI in late 1998 (see August 22-25 1998). [9/11 Commission, 7/24/2004, pp. 152-3] (Note: in the sources, al-Nashiri is referred to by two of his aliases: Muhammad Omar al-Harazi and Al Safani.) [CNN, 12/11/2000; Central Intelligence Agency, 9/6/2006]
Ramzi bin al-Shibh - Investigators believe he wants to be the 20th 9/11 hijacker. His presence at the summit may not be realized until after 9/11, despite the fact that US intelligence has a picture of him next to bin Attash, and has video footage of him. [Newsweek, 11/26/2001; Washington Post, 7/14/2002; Time, 9/15/2002; Die Zeit (Hamburg), 10/1/2002; CNN, 11/7/2002] German police will have credit card receipts indicating bin al-Shibh is in Malaysia at this time. [Los Angeles Times, 9/1/2002] Ulrich Kersten, director of Germany’s federal anticrime agency, the Bundeskriminalamt, will later say, “There are indications that Ramzi bin al-Shibh was in Kuala Lumpur for the meeting.” [New York Times, 8/24/2002] Another account noting he was photographed at the summit will further note that he enters and leaves Thailand three times in the first three weeks of January 2000. [Los Angeles Times, 10/17/2001] Anonymous Malaysian officials will later claim he is at the summit, but US officials will deny it. Two local militants who serve as drivers for the attendees will later be arrested in Malaysia. They will be shown photos of the attendees, and confirm that bin al-Shibh was at the summit. [Associated Press, 9/20/2002] One account will say he is recognized at the time of the summit, which makes it hard to understand why he is not tracked back to Germany and the Hamburg cell with Mohamed Atta and other 9/11 hijackers. [Der Spiegel (Hamburg), 10/1/2002] Another opportunity to expose the 9/11 plot through bin al-Shibh’s presence at this summit will be missed in June. It appears bin al-Shibh and Almihdhar are directly involved in the attack on the USS Cole in October 2000 (see October 10-21, 2000). [Guardian, 10/15/2001; Washington Post, 7/14/2002; Newsweek, 9/4/2002]
Salem Alhazmi - Alhazmi, a 9/11 hijacker and brother of Nawaf Alhazmi, is possibly at the summit, although very few accounts will mention it. [Australian, 12/24/2002] US intelligence intercepts from before the summit indicate that he at least had plans to attend. [US Congress, 7/24/2003, pp. 51 pdf file]
Abu Bara al-Taizi (a.k.a. Zohair Mohammed Said) - A Yemeni al-Qaeda operative, al-Taizi is reportedly meant to be one of the 9/11 hijackers, but will be unable to enter the US due to greater scrutiny for Yemenis. [9/11 Commission, 6/16/2004, pp. 8] Al-Taizi will be captured in Pakistan in February 2002, and then sent to the US prison in Guantanamo a few months later (see February 7, 2002). According to his 2008 Guantanamo file, he traveled from Afghanistan to Malaysia with bin Attash about two weeks before the summit. Bin Attash was missing a leg, and he had a prosthetic leg fitted and then stayed in the hospital to recover from the surgery. Bin Attash and al-Taizi stay at Sufaat’s house for the duration of the summit. Al-Taizi then flies to Yemen to visit his family there. [US Department of Defense, 10/25/2008]
Others - Unnamed members of the Egyptian-based Islamic Jihad are also said to be at the summit. [Cox News Service, 10/21/2001] Islamic Jihad merged with al-Qaeda in February 1998. [ABC News, 11/17/2001] However, according to the Wall Street Journal, bin Attash and Fahad al-Quso are suspected of being Islamic Jihad members at one point, so this may just be a reference to them. [Wall Street Journal, 10/8/2001] Note that there are a total of 10 names mentioned above, and it will be reported that the CIA learned that 11 operatives were to attend, so either not all of them make it, or some names of attendees will remain unknown.
Summit Associates - The following individuals are probably not at the summit meetings, but are in the region and assisting or linked with the attendees at this time:
Fahad Al-Quso - Al-Quso is a top al-Qaeda operative who is involved in the bombing of the USS Cole. Some sources will indicate al-Quso is present in Malaysia, and a person who looks like him will later be seen in a photograph of the meeting (see June 11, 2001). [Newsweek, 9/20/2001 pdf file] However, other sources will say al-Quso did not reach Kuala Lumpur, but met with bin Attash around this time in Bangkok, Thailand (see January 5-6, 2000 and January 8-15, 2000). [9/11 Commission, 7/24/2004, pp. 159; Wright, 2006, pp. 330] Although al-Quso apparently is not at the summit, there are a series of phone calls during the time of the summit between his hotel in Bangkok, a phone booth near the condominium where the summit is held, and his family home in Yemen (see (January 5-8, 2000)). Al-Quso will be arrested by Yemeni authorities in the fall of 2000 (see Late October-Late November 2000), but the FBI will not be given a chance to fully interrogate him before 9/11. He will escape from prison in 2003. [CNN, 5/15/2003]
Ahmad Sajuli Abdul Rahman - An operative of Jemaah Islamiyah, al-Qaeda’s Southeast Asian affiliate, Sajuli takes the visiting Arabs around Kuala Lumpur, but apparently does not attend the summit meetings. [US Congress, 10/17/2002] According to the later Guantanamo file of summit attendee al-Taizi, one of the attendees Sajuli escorts around town is future 9/11 hijacker Khalid Almihdhar. Sajuli also helps arrange al-Taizi’s transportation at the end of the summit. [US Department of Defense, 10/25/2008] Sajuli will be arrested in Malaysia in December 2001 (see December 29, 2001).
Ahmad Hikmat Shakir - A suspected al-Qaeda agent of Iraqi nationality, Shakir is a greeter at Kuala Lumpur airport. He meets Almihdhar there and travels with him to the apartment where the summit is held, but he probably does not attend the summit meetings. [Associated Press, 10/2/2002; Newsweek, 10/7/2002; Australian, 12/24/2002; Knight Ridder, 6/12/2004] After 9/11, he will be linked to the 1993 World Trade Center bombing and the 1995 Bojinka plot. Jordan will arrest him and let him go after the US says it doesn’t want to take custody of him (see September 17, 2001).
Dhiren Barot - Dhiren Barot (a.k.a. Abu Eissa al-Hindi) is a British citizen of Indian descent. According to a 2006 Observer article, Barot “is not believed to have been present” at the summit meetings. However, he does go to Kuala Lumpur during the time of the summit with summit attendee bin Attash. And shortly after the summit, Barot holds meetings with Hambali. It will later be reported that Barot is sent by KSM to New York City in early 2001 to case potential targets there, although whether this is part of the 9/11 plot or some other plot is unclear (see May 30, 2001). Barot will be arrested in 2004 in Britain for plotting attacks there, and sentenced to 30 years in prison (see August 3, 2004). [Observer, 12/12/2006]
Another Unnamed Local Militant - Malaysian officials will say that two local Jemaah Islamiyah act as drivers for the attendees. These drivers apparently have no idea who the attendees are or what they are doing; they are just tasked to drive them around. In a 2002 Associated Press article, officials will not name these drivers, but will say that they are among the dozens of alleged Jemaah Islamiyah militants arrested in December 2001 and January 2002. Since Sajuli mentioned above is arrested at that time, he presumably is one of these drivers. It is not known who the other driver is. (Sufaat will be arrested at that time as well, but the Associated Press article will make clear Sufaat is not one of the drivers.) [Associated Press, 9/20/2002]
Probably Not Involved: Mohamed al-Khatani - A Saudi, he allegedly will confess to attending the summit while being held in the US Guantanamo prison (see July 2002). He apparently will unsuccessfully attempt to enter the US in August 2001 to join the 9/11 plot (see August 4, 2001). However, al-Khatani will later recant his testimony and say he lied to avoid torture (see October 26, 2006). Furthermore, his 2008 Guantanamo file, leaked to the public in 2011, contains no hint of him even possibly attending the summit. The contents of the file must be treated with extreme caution, especially since he is repeatedly and brutally tortured (see August 8, 2002-January 15, 2003 and January 14, 2009). But according to the general narrative of the file, al-Khatani had no involvement with Islamist militancy in early 2000, only starts to get involved with militants in mid-2000, and first attends a militant training camp in Afghanistan in late 2000. [US Department of Defense, 10/30/2008]

Entity Tags: Hambali, Abu Bara al-Taizi, Dhiren Barot, Central Intelligence Agency, Ahmad Hikmat Shakir, Ahmad Sajuli Abdul Rahman, Al-Qaeda, Abd al-Rahim al-Nashiri, Islamic Jihad, Jemaah Islamiyah, Fahad al-Quso, Khalid Shaikh Mohammed, Ulrich Kersten, Yazid Sufaat, Khalid Almihdhar, Ramzi bin al-Shibh, Salem Alhazmi, Mohamed al-Khatani, Malaysian Secret Service, Khallad bin Attash, Nawaf Alhazmi

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Bradford Berenson.Bradford Berenson. [Source: PBS]In the weeks following 9/11, government lawyers begin to formulate a legal response to the newly perceived threat of terrorism. Four related issues are at hand: forceful prevention, detention, prosecution, and interrogation. What degree of force can the government employ to prevent acts of terrorism or apprehend suspected terrorists? How and where can it best detain terrorists if captured? How can it best bring them to trial? And how can it best obtain information from them on terrorist organizations and plots? These questions are handled in a new atmosphere that is more tolerant towards flexible interpretations of the law. Bradford Berenson, an associate White House counsel at this time, later recalls: “Legally, the watchword became ‘forward-leaning’ by which everybody meant: ‘We want to be aggressive. We want to take risks.’” [New York Times, 10/24/2004] This attitude is seemingly in line with the president’s thinking. Counterterrorism “tsar” Richard Clarke will later recall President Bush saying, “I don’t care what the international lawyers say. We are going to kick some ass” (see (9:00 p.m.-10:00 p.m.) September 11, 2001). [Clarke, 2004, pp. 23-24] At the center of legal reconstruction work are Alberto R. Gonzales, the White House counsel, his deputy Timothy E. Flanigan, and David S. Addington, legal counsel to Vice President Cheney. [New York Times, 12/19/2004] They will find a helpful hand in the Justice Department’s Office of Legal Counsel (OLC), most notably its head, Assistant Attorney General Jay S. Bybee [Los Angeles Times, 6/10/2004] and his deputies John C. Yoo [New York Times, 8/15/2004] and Patrick F. Philbin. Most of the top government lawyers dwell in fairly conservative circles, with many being a member of the Federalist Society, a conservative legal fraternity. Some have clerked for conservative Supreme Court Justices Antonin Scalia and Clarence Thomas, whose ruling effectively lead to the presidency being awarded to George W. Bush after the 2000 presidential election. [New York Times, 10/24/2004] Others worked for Judge Lawrence H. Silberman, who set up secret contacts with the Iranian government under President Reagan leading to the Iran-Contra scandal, and who advised on pursuing allegations of sexual misconduct by President Clinton. [Inter Press Service, 2/6/2004]

Entity Tags: Patrick F. Philbin, Richard A. Clarke, John C. Yoo, Joan Claybrook, Alberto R. Gonzales, Bradford Berenson, Jay S. Bybee, Alan M. Dershowitz, Rena Steinzor

Timeline Tags: Torture of US Captives, Civil Liberties

The White House declares that the United States will apply the Geneva Conventions to the conflict in Afghanistan, but will not grant prisoner-of-war status to captured Taliban and al-Qaeda fighters. Though Afghanistan was party to the 1949 treaty, Taliban fighters are not protected by the Conventions, the directive states, because the Taliban is not recognized by the US as Afghanistan’s legitimate government. Likewise, al-Qaeda fighters are not eligible to be protected under the treaty’s provisions because they do not represent a state that is party to the Conventions either.
Administration Will Treat Detainees Humanely 'Consistent' with Geneva - In the memo, President Bush writes that even though al-Qaeda detainees do not qualify as prisoners of war under Geneva, “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The presidential directive is apparently based on Alberto Gonzales’s January 25 memo (see January 25, 2002) and a memo from Vice President Cheney’s chief of staff, David Addington (see January 25, 2002).
Bush Chooses Not to Suspend Geneva between US and Afghanistan - The directive also concludes that Bush, as commander in chief of the United States, has the authority to suspend the Geneva Conventions regarding the conflict in Afghanistan, should he feel necessary: Bush writes, “I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.” Though not scheduled for declassification until 2012, the directive will be released by the White House in June 2004 to demonstrate that the president never authorized torture against detainees from the wars in Afghanistan and Iraq. [George W. Bush, 2/7/2002 pdf file; CNN, 2/7/2002; Newsweek, 5/24/2004; Truthout (.org), 1/19/2005; Dubose and Bernstein, 2006, pp. 191]
Overriding State Department Objections - Bush apparently ignores or overrides objections from the State Department, including Secretary of State Colin Powell (see January 25, 2002) and the department’s chief legal counsel, William Howard Taft IV (see January 25, 2002). Both Powell and Taft strenuously objected to the new policy. [Savage, 2007, pp. 147]
Ignoring Promises of Humane Treatment - The reality will be somewhat different. Gonzales laid out the arguments for and against complying with Geneva in an earlier memo (see January 18-25, 2002), and argued that if the administration dispensed with Geneva, no one could later be charged with war crimes. Yet, according to Colin Powell’s chief of staff, Lawrence Wilkerson, sometime after the Bush memo is issued, Vice President Cheney and Defense Secretary Rumsfeld decide to ignore the portions promising humane treatment for prisoners. “In going back and looking at the deliberations,” Wilkerson later recalls, “it was clear to me that what the president had decided was one thing and what was implemented was quite another thing.” [Dubose and Bernstein, 2006, pp. 190-191]

Entity Tags: Geneva Conventions, George W. Bush, Colin Powell, Lawrence Wilkerson, William Howard Taft IV, Richard (“Dick”) Cheney, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

Abu Zubaida injured, shortly after his arrest. (Note: this picture is from a video presentation on prisoners the Pakistani government gave to BBC filmmakers. It has been adjusted to remove some blue tinge.)Abu Zubaida injured, shortly after his arrest. (Note: this picture is from a video presentation on prisoners the Pakistani government gave to BBC filmmakers. It has been adjusted to remove some blue tinge.) [Source: BBC's "The New Al-Qaeda."]After al-Qaeda leader Abu Zubaida is captured on March 28, 2002 (see March 28, 2002), the CIA takes control of his detention and interrogation, but there is no legal clarity over just how aggressive his interrogation can be for several months. [Tenet, 2007, pp. 241] Thereforem the CIA asks the White House “what the legal limits of interrogation are,” according to Justice Department lawyer John Yoo. [Washington Post, 6/25/2007] CIA Director George Tenet will write in his 2007 book: “Now that we had an undoubted resource in our hands—the highest-ranking al-Qaeda official captured to date—we opened discussions within the National Security Council as to how to handle him, since holding and interrogating large numbers of al-Qaeda operatives had never been part of our plan.… We wondered what we could legitimately do to get that information. Despite what Hollywood might have you believe, in situations like this you don’t call in the tough guys, you call in the lawyers. It took until August to get clear guidance on what Agency officers could legally do.” [Tenet, 2007, pp. 241] This is a reference to an August 1, 2002 Justice Department memo legally justifying the use of some interrogations generally deemed to be torture (see August 1, 2002). But it appears Zubaida was subjected to the most extreme interrogation methods the US used, such as waterboarding, well before August 2002 (see Mid-May 2002 and After). However, during this period of uncertainty and into 2003, the CIA gets advice from Michael Chertoff, head of the Justice Department’s criminal division at the time, about which techniques are likely legal and which ones are not (see 2002-2003).

Entity Tags: Michael Chertoff, Abu Zubaida, George J. Tenet, Central Intelligence Agency, John C. Yoo

Timeline Tags: Torture of US Captives, Complete 911 Timeline

In the days following the capture of al-Qaeda operative Abu Zubaida (see March 28, 2002), a group of top White House officials, the National Security Council’s Principals Committee, begins a series of meetings that result in the authorization of specific torture methods against Zubaida and other detainees. The top secret talks and meetings eventually approve such methods to be used by CIA agents against high-value terrorism suspects. The US media will not learn of this until six years later (see April 9, 2008). The Principals Committee meetings are chaired by National Security Adviser Condoleezza Rice, and attendees include Vice President Dick Cheney, CIA Director George Tenet, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell, and Attorney General John Ashcroft. Tenet’s successor, Porter Goss, will also participate in the meetings. Sometimes deputies attend in place of their superiors. Rice’s group not only discusses and approves specific “harsh” methods of interrogation, but also approves the use of “combined” interrogation techniques on suspects who prove recalcitrant. The approved techniques include slapping and shoving prisoners, sleep deprivation, and waterboarding, or simulated drowning, a technique banned for decades by the US military. Some of the discussions of the interrogation sessions are so detailed that the Principals Committee virtually choreographs the sessions down to the number of times CIA agents can use specific tactics. [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] The Principals Committee also ensures that President Bush is not involved in the meetings, thereby granting him “deniability” over the decisions, though Bush will eventually admit to being aware of the decisions (see April 11, 2008). The Principals Committee, particularly Cheney, is described by a senior intelligence official as “deeply immersed” in the specifics of the decisions, often viewing demonstrations of how specific tactics work. [Associated Press, 4/10/2008]
Imminent Threat Calls for Extreme Measures - The move towards using harsh and likely illegal interrogation tactics begins shortly after the capture of Zubaida in late March 2002 (see Late March through Early June, 2002 and March 28, 2002). Zubaida is seen as a potentially critical source of information about potential attacks similar to 9/11. He is kept in a secret CIA prison where he recovers from the wounds suffered during his capture, and where he is repeatedly questioned. However, he is allegedly uncooperative with his inquisitors, and CIA officials want to use more physical and aggressive techniques to force him to talk (see March 28, 2002-Mid-2004 and April - June 2002). The CIA briefs the Principals Committee, chaired by Rice, and the committee signs off on the agency’s plan to use more extreme interrogation methods on Zubaida. After Zubaida is waterboarded (see April - June 2002), CIA officials tell the White House that he provided information leading to the capture of two other high-level al-Qaeda operatives, Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003) and Ramzi bin al-Shibh (see Late 2002 and May 2002-2003). The committee approves of waterboarding as well as a number of “combined” interrogation methods, basically a combination of harsh techniques to use against recalcitrant prisoners.
The 'Golden Shield' - The committee asks the Justice Department to determine whether using such methods would violate domestic or international laws. “No one at the agency wanted to operate under a notion of winks and nods and assumptions that everyone understood what was being talked about,” a second senior intelligence official will recall in 2008. “People wanted to be assured that everything that was conducted was understood and approved by the folks in the chain of command.” In August 2002, Justice Department lawyers in the Office of Legal Counsel will write a memo that gives formal legal authority to government interrogators to use harsh, abusive methods on detainees (see August 1, 2002). The memo is called the “Golden Shield” for CIA agents who worry that they could be held criminally liable if the harsh, perhaps tortuous interrogations ever become public knowledge. CIA veterans remember how everything from the Vietnam-era “Phoenix Program” of assassinations to the Iran-Contra arms sales of the 1980s were portrayed as actions of a “rogue,” “out-of-control” CIA; this time, they intend to ensure that the White House and not the agency is given ultimate responsibility for authorizing extreme techniques against terror suspects. Tenet demands White House approval for the use of the methods, even after the Justice Department issues its so-called “Golden Shield” memo explicitly authorizing government interrogators to torture suspected terrorists (see August 1, 2002). Press sources will reveal that Tenet, and later Goss, convey requests for specific techniques to be used against detainees to the committee (see Summer 2003). One high-ranking official will recall: “It kept coming up. CIA wanted us to sign off on each one every time. They’d say: ‘We’ve got so and so. This is the plan.’” The committee approves every request. One source will say of the discussions: “These discussions weren’t adding value. Once you make a policy decision to go beyond what you used to do and conclude it’s legal, [you should] just tell them to implement it.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] In April 2008, law professor Jonathan Turley will say: “[H]ere you have the CIA, which is basically saying, ‘We’re not going to have a repeat of the 1970s, where you guys have us go exploding cigars and trying to take out leaders and then you say you didn’t know about it.’ So the CIA has learned a lot. So these meetings certainly cover them in that respect.” [MSNBC, 4/10/2008] A former senior intelligence official will say, “If you looked at the timing of the meetings and the memos you’d see a correlation.” Those who attended the dozens of meetings decided “there’d need to be a legal opinion on the legality of these tactics” before using them on detainees. [Associated Press, 4/10/2008]
Ashcroft Uneasy at White House Involvement - Ashcroft in particular is uncomfortable with the discussions of harsh interrogation methods that sometimes cross the line into torture, though his objections seem more focused on White House involvement than on any moral, ethical, or legal problems. After one meeting, Ashcroft reportedly asks: “Why are we talking about this in the White House? History will not judge this kindly.” However, others in the discussions, particularly Rice, continue to support the torture program. Even after Jack Goldsmith, the chief of the Justice Department’s Office of Legal Counsel (OLC), withdraws the “Golden Shield” memo and after Powell begins arguing that the torture program is harming the image of the US abroad, when CIA officials ask to continue using particular torture techniques, Rice responds: “This is your baby. Go do it.”
Reaction after Press Learns of Meetings - After the press learns of the meetings (see April 9, 2008), the only person involved who will comment will be Powell, who will say through an assistant that there were “hundreds of [Principals Committee] meetings” on a wide variety of topics and that he is “not at liberty to discuss private meetings.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008]

Entity Tags: Office of Legal Counsel (DOJ), Porter J. Goss, US Department of Justice, Ramzi bin al-Shibh, Richard (“Dick”) Cheney, Principals Committee, Khalid Shaikh Mohammed, Jack Goldsmith, John Ashcroft, Bush administration (43), Al-Qaeda, Abu Zubaida, Central Intelligence Agency, Colin Powell, Condoleezza Rice, George W. Bush, George J. Tenet, Donald Rumsfeld, Jonathan Turley, National Security Council

Timeline Tags: Torture of US Captives, Civil Liberties

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

Military lawyers for a detainee believed to be Abu Zubaida (see March 28, 2002) lodge numerous complaints with unidentified White House officials over the torture of their client. Zubaida has been subjected to waterboarding and other abuses by CIA interrogators (see March 28, 2002-Mid-2004, March 28-August 1, 2002, Mid-April-May 2002, Mid-April 2002, and Mid-May 2002 and After). The complaints trigger a hastily arranged meeting between Vice President Cheney, White House counsel Alberto Gonzales, Cheney’s chief counsel David Addington, National Security Adviser Condoleezza Rice, and a number of officials from the Defense and State Departments. The discussion centers on the production of a legal memo specifically for the CIA that would provide retroactive legal immunity for the use of waterboarding and other illegal interrogation methods. According to a subsequent investigation by the Justice Department (see February 22, 2009), the participants in the discussion believe that the methods used against Zubaida are legal because on February 7, 2002, President Bush signed an executive order stating that terrorists were not entitled to protections under the Geneva Conventions (see February 7, 2002). Nevertheless, the participants agree that methods such as waterboarding probably violate international and domestic laws against torture, and therefore the CIA and the Bush administration would both benefit from a legal opinion stating what techniques are legal, and why they do not fit the legal definition of torture. The meeting results in the production of the so-called “Golden Shield” memo (see August 1, 2002). [Public Record, 2/22/2009]

Entity Tags: US Department of State, Bush administration (43), Alberto R. Gonzales, Abu Zubaida, Central Intelligence Agency, US Department of Justice, Condoleezza Rice, Geneva Conventions, David S. Addington, Richard (“Dick”) Cheney, George W. Bush, US Department of Defense

Timeline Tags: Civil Liberties

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

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

The interrogation and abuse of suspect Mohamed al-Khatani (sometimes spelled “al-Qahtani”—see February 11, 2008) at Guantanamo Bay begins. He is alleged to have tried to enter the US to participate in the 9/11 plot as the twentieth hijacker. He is classified as “Detainee 063.” He is subjected to 160 days of isolation in a pen flooded 24 hours a day with bright artificial light, that treatment starting well before harsher interrogation tactics begin six weeks later (see November 23, 2002). The tactics include:
bullet He is interrogated for 48 of 54 days, for 18 to 20 hours at a stretch.
bullet He is stripped naked and straddled by taunting female guards, in an exercise called “invasion of space by a female.”
bullet He is forced to wear women’s underwear on his head and to put on a bra.
bullet He is threatened by dogs, placed on a leash, and told that his mother was a whore.
bullet He is stripped naked, shaved, and forced to bark like a dog.
bullet He is forced to listen to American pop music at ear-splitting volume. He is subjected to a phony kidnapping (see Mid-2003).
bullet He is forced to live in a cell deprived of heat
bullet He is given large quantities of intravenous liquids and denied access to a toilet
bullet He is deprived of sleep for days on end.
bullet He is forcibly given enemas, and is hospitalized multiple time for hypothermia.
Impact - Towards the end of the extended interrogation session, Al-Khatani’s heart rate drops so precipitously (to 35 beats a minute) that he is placed under cardiac monitoring. Interrogators meticulously note his reactions to his treatment, and make the following notes at various times: “Detainee began to cry. Visibly shaken. Very emotional. Detainee cried. Disturbed. Detainee began to cry. Detainee bit the IV tube completely in two. Started moaning. Uncomfortable. Moaning. Began crying hard spontaneously. Crying and praying. Very agitated. Yelled. Agitated and violent. Detainee spat. Detainee proclaimed his innocence. Whining. Dizzy. Forgetting things. Angry. Upset. Yelled for Allah. Urinated on himself. Began to cry. Asked God for forgiveness. Cried. Cried. Became violent. Began to cry. Broke down and cried. Began to pray and openly cried. Cried out to Allah several times. Trembled uncontrollably.” In November 2002, an FBI agent describes al-Khatani’s condition, writing that he “was talking to non-existent people, reporting hearing voices, [and] crouching in a corner of the cell covered with a sheet for hours on end.” Al-Khatani confesses to an array of terrorist activities and then recants them; he begs his interrogators to be allowed to commit suicide. The last days of al-Khatani’s interrogation session is particularly intense, since interrogators know that their authorization to use harsh techniques may be rescinded at any time. They get no useful information from him. By the end of the last interrogation, an Army investigator observes that al-Khatani has “black coals for eyes.” [New Yorker, 2/27/2006; Vanity Fair, 5/2008]
Reaching the Threshold - In the summer of 2007, Dr. Abigail Seltzer, a psychiatrist who specializes in trauma victims, reviews the logs of al-Khatani’s interrogations. Seltzer notes that while torture is not a medical concept: “[O]ver the period of 54 days there is enough evidence of distress to indicate that it would be very surprising indeed if it had not reached the threshold of severe mental pain…. If you put 12 clinicians in a room and asked them about this interrogation log, you might get different views about the effect and long-term consequences of these interrogation techniques. But I doubt that any one of them would claim that this individual had not suffered severe mental distress at the time of his interrogation, and possibly also severe physical distress.” Everything that is done to al-Khatani is part of the repertoire of interrogation techniques approved by Secretary of Defense Donald Rumsfeld (see December 2, 2002).
Fundamental Violation of Human Rights - In 2008, law professor Phillippe Sands will write: “Whatever he may have done, Mohammed al-Khatani was entitled to the protections afforded by international law, including Geneva and the torture convention. His interrogation violated those conventions. There can be no doubt that he was treated cruelly and degraded, that the standards of Common Article 3 were violated, and that his treatment amounts to a war crime. If he suffered the degree of severe mental distress prohibited by the torture convention, then his treatment crosses the line into outright torture. These acts resulted from a policy decision made right at the top, not simply from ground-level requests in Guantanamo, and they were supported by legal advice from the president’s own circle.” [Vanity Fair, 5/2008]

Entity Tags: Geneva Conventions, Mohamed al-Khatani, Donald Rumsfeld, Abigail Seltzer, Phillippe Sands

Timeline Tags: Torture of US Captives

Some congressional leaders are reportedly briefed on the CIA’s detainee interrogation program, but what is actually said will later be disputed. The briefing is described as “a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk,” and apparently mentions waterboarding and information gleaned from detainees, according to two unnamed officials who are present and will later talk to the Washington Post.
Few, if Any, Objections Raised - Due to the feeling of “panic” following 9/11, the legislators’ attitude is described as, “We don’t care what you do to those guys as long as you get the information you need to protect the American people,” and two even ask if the methods are “tough enough.” The briefing, apparently one of the first of a series of around 30 private briefings on the CIA’s interrogation program, is for the “Gang of Eight,” the four top congressional leaders and the senior member from each party on the House and Senate intelligence committees. However, the methods used are only described in some of the briefings, and some of the meetings are just for the “gang of four”—intelligence committee members only. The groups are said to be so small because they concern highly secret covert activities, although it will later be suggested that the administration’s motivation is “partly to hide from view an embarrassing practice that the CIA considered vital but outsiders would almost certainly condemn as abhorrent.” One of the committee members present is Nancy Pelosi (D-CA), and other officials that receive such briefings are reported to include Jane Harman (D-CA), Bob Graham (D-FL), Jay Rockefeller (D-WV), Porter Goss (R-FL) and Pat Roberts (R-KS). Harman is said to be the only one to object at any point. The attendees’ recollections of the meeting will later vary greatly. Goss will say, “Among those being briefed, there was a pretty full understanding of what the CIA was doing… And the reaction in the room was not just approval, but encouragement,” although this may not be a reference to this specific meeting. Graham, who will leave the Senate Intelligence Committee in January 2003, will later say he has no memory of being told about waterboarding, “Personally, I was unaware of it, so I couldn’t object.” A “source familiar with Pelosi’s position” will say that she participates in a discussion of enhanced interrogation techniques, but understands they are at the planning stage at this time and are not in use. [Washington Post, 12/9/2007]
Restrictions on Information - Graham will later describe the limitations placed on legislators who receive such briefings: “In addition to the fact that the full members of the committee can’t hear what’s happening, those who are in the room are very restricted. You can’t take any notes. You can’t bring anyone with you and after the meeting, you cannot discuss what you’ve heard. So that if, for instance, there’s an issue about, is this legal under the Geneva Convention, you can’t go to someone who’s an expert on that subject and get their opinion. It’s a very limiting situation.” [CNN, 12/13/2007]
Secret Interrogations Already Underway - The CIA has been conducting aggressive interrogations since at least May 2002 (see Mid-May 2002 and After), but is has no firm legal basis to perform them until the Justice Department gives approval in August 2002 (see August 1, 2002). CIA Director George Tenet will later comment in a 2007 book, “After we received the written Department of Justice guidance on the interrogation issue, we briefed the chairmen and ranking members of our oversight committees. While they were not asked to formally approve the program as it was done under the President’s unilateral authorities, I can recall no objections being raised.” [MSNBC, 9/13/2007]

Entity Tags: Porter J. Goss, Senate Intelligence Committee, Pat Roberts, Nancy Pelosi, John D. Rockefeller, Jane Harman, Central Intelligence Agency, George J. Tenet, House Intelligence Committee, Daniel Robert (“Bob”) Graham

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Several high-level Bush administration lawyers arrive in Guantanamo. The group includes White House counsel Alberto Gonzales; Vice President Cheney’s chief of staff David Addington, who had helped the Justice Department craft its “torture memo” (see August 1, 2002); CIA legal counsel John Rizzo, who had asked the Justice Department for details about how interrogation methods could be implemented (see June 22, 2004); and the Pentagon’s general counsel, William J. Haynes. They are at Guantanamo to discuss the case of suspected “20th hijacker” Mohamed al-Khatani (see August 8, 2002-January 15, 2003).
Pressure from Washington - The commander of the Guantanamo facility, Major General Michael Dunlavey, will recall: “They wanted to know what we were doing to get to this guy, and Addington was interested in how we were managing it… They brought ideas with them which had been given from sources in DC. They came down to observe and talk.” Dunlavey will say that he was pressured by Defense Secretary Donald Rumsfeld himself to expedite the interrogation and use extraordinary means to squeeze information from the suspect. “I’ve got a short fuse on this to get it up the chain,” Dunlavey recalls. “I was on a timeline. This guy may have been the key to the survival of the US.” Asked how high up the pressure was from, Dunlavey will say, “It must have been all the way to the White House.” Rumsfeld is “directly and regularly involved” in all the discussions of interrogations.
'Do Whatever Needed to Be Done' - Staff judge advocate Lieutenant Colonel Diane Beaver will recall that Addington is “definitely the guy in charge,” taking control of the discussions. Gonzales is quiet. Haynes, a close friend and colleague of Addington’s, seems most interested in how the military commissions would function to try and convict detainees. The lawyers meet with intelligence officials and themselves witness several interrogations. Beaver will recall that the message from Addington and his group is “Do whatever needed to be done.” In essence, the Guantanamo interrogators and commanders are given a green light from the administration’s top lawyers, representing President Bush, Vice President Cheney, Rumsfeld, and the CIA. [Vanity Fair, 5/2008]

Entity Tags: William J. Haynes, US Department of Justice, Mohamed al-Khatani, Michael E. Dunlavey, David S. Addington, Diane E. Beaver, Central Intelligence Agency, Alberto R. Gonzales, Bush administration (43), Richard (“Dick”) Cheney, Donald Rumsfeld, John Rizzo, George W. Bush

Timeline Tags: Torture of US Captives, Civil Liberties

Two days after General Rick Baccus has been relieved from duty as the guard commander at Guantanamo (see October 9, 2002), and almost one and a half months since the writing of the Office of Legal Counsel’s (OLC) August memo on torture (see August 1, 2002), military intelligence at Guantanamo begin suggesting new rules of interrogation. Lieutenant Colonel Jerald Phifer, Director J2, sends a memo, to Major General Michael E. Dunlavey, Commander of Joint Task Force (JTF) 170, requesting approval for more severe interrogation techniques. [US Department of Defense, 10/11/2002 pdf file; New Yorker, 2/27/2008] In 2009, Senator Carl Levin (D-MI) will write (see April 21, 2009) that Dunlavey’s request is sparked by recent reports on the use of SERE training techniques for interrogation purposes (see January 2002 and After and April 16, 2002). [Huffington Post, 4/21/2009]
Three Categories of Techniques - The memo states, “The current guidelines for interrogation procedures at GTMO [Guantanamo] limit the ability of interrogators to counter advanced resistance.” Phifer proposes three categories of techniques. The mildest, which includes yelling and weak forms of deception, are included in category one. Category two techniques are more severe and require approval by an “interrogator group director.” They include the use of stress positions for up to four hours; use of falsified documents; isolation for up to 30 days; sensory deprivation and hooding; 20-hour interrogations; removal of comfort and religious items; replacing hot food with cold military rations; removal of clothing; forced grooming, including the shaving of beards; and playing on detainees’ phobias to induce stress, such as a fear of dogs. The harshest techniques, listed in category three, are to be reserved for a “very small percentage of the most uncooperative detainees” and only used with permission from the commander of the prison. These methods include using non-injurious physical contact like poking or grabbing; threatening a detainee with death or severe pain or threatening that a family member would be subjected to such harm; exposing him to cold weather or water; using a wet towel to “induce the misperception of suffocation.” [US Department of Defense, 10/11/2002 pdf file; New Yorker, 2/27/2008]
Desire to Extract More Information from Detainee - The request is prompted in part by military intelligence’s belief that Guantanamo detainee Mohamed al-Khatani has more information than the FBI has managed to extract from him. “Al-Khatani is a person in… whom we have considerable interest,” Dell’Orto will explain during a 2004 press briefing at the White House. “He has resisted our techniques. And so it is concluded at Guantanamo that it may be time to inquire as to whether there may be more flexibility in the type of techniques we use on him.” [Washington File, 6/23/2004]
JAG Officer Concludes Tactics are Legal - The same day, a staff judge advocate, Lieutenant Colonel Diane E. Beaver, reviews Phifer’s proposed techniques for legality and, while making qualifications and recommending further review, concludes in a memo to Dunlavey that they are legal. Also the same day, Dunlavey sends the list of techniques to his superior, General James T. Hill, commander of the Southern Command, requesting approval for their use. Dunlavey writes: “Although [the techniques currently employed] have resulted in significant exploitable intelligence the same methods have become less effective over time. I believe the methods and techniques delineated in the accompanying J-2 memorandum will enhance our efforts to extract additional information.” [US Department of Defense, 10/11/2002 pdf file] Beaver concludes that since President Bush had decided that all the detainees “are not protected by the Geneva Conventions” (see January 18-25, 2002, February 7, 2002), all of the desired techniques are allowable because “no international body of law directly applies.” [Savage, 2007, pp. 178]

Entity Tags: Rick Baccus, George W. Bush, James T. Hill, Carl Levin, Daniel J. Dell’Orto, Diane E. Beaver, Michael E. Dunlavey, Mohamed al-Khatani

Timeline Tags: Torture of US Captives

The new commander at the Guantanamo detention facility, General Geoffrey Miller, receives a “voco”—a vocal command—to begin aggressively interrogating suspected “20th hijacker” Mohamed al-Khatani (see August 8, 2002-January 15, 2003). This is well before Defense Secretary Donald Rumsfeld gives written authorization for these techniques to be used (see November 27, 2002 and December 2, 2002), but after the request had been submitted for approval (see October 11, 2002). Considering Miller’s rank, it seems unlikely that anyone lower in the chain of command than Rumsfeld would have issued the order, and Rumsfeld is unlikely to make such a “voco” without the support of Pentagon general counsel William J. Haynes. The interrogation log of al-Khatani for November 23 indicates the immediate effect of the “voco”: “The detainee arrives at the interrogation booth. His hood is removed and he is bolted to the floor.” [Vanity Fair, 5/2008]

Entity Tags: William J. Haynes, Donald Rumsfeld, Mohamed al-Khatani, Geoffrey D. Miller

Timeline Tags: Torture of US Captives

James T. Hill.James T. Hill. [Source: Defense Department]Department of Defense General Counsel William J. Haynes sends Defense Secretary Donald Rumsfeld an “action memo” to approve a set of interrogation tactics for use. The techniques are to be used at the discretion of General James T. Hill, commander of the US Southern Command, and are those previously classified in Categories I and II, and the “mild, non-injurious contact” techniques from Category III that were suggested by the Guantanamo legal staff (see October 25, 2002). The mildest techniques, Category I, can be used by interrogators at will and include yelling and mild forms of deception. Category II techniques are to be approved by an “interrogator group director,” and include the use of stress positions for up to four hours; use of falsified documents; isolation of a detainee for up to thirty days; sensory deprivation and hooding; twenty-hour interrogations; removal of hygiene and religious items; enforced removal of clothing (stripping); forced grooming, including the shaving of beards; and playing on detainees’ phobias, such as a fear of dogs, to induce stress and break resistance. With regard to the remaining harsh techniques in Category III—physical contact, death threats, and use of wet towels (waterboarding)—Haynes writes that they “may be legally available [but] as a matter of policy, a blanket approval… is not warranted at this time.” Haynes mentions having discussed the matter with “the deputy, Doug Feith and General Myers,” who, he believes, join him in the recommendation. He adds, “Our armed forces are trained to a standard of interrogation that reflects a tradition of restraint.” [Human Rights Watch, 8/19/2004] Rumsfeld will sign the so-called “Haynes Memo” (see December 2, 2002), and add the following handwritten comment: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?” [Vanity Fair, 5/2008]

Entity Tags: James T. Hill, Donald Rumsfeld, Douglas Feith, Richard B. Myers, William J. Haynes

Timeline Tags: Torture of US Captives

Rumsfeld’s handwritten note at the bottom of the memo he signs: “However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?”Rumsfeld’s handwritten note at the bottom of the memo he signs: “However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?” [Source: HBO]Defense Secretary Donald Rumsfeld approves General Counsel William J. Haynes’ recommendations for interrogations methods (see November 27, 2002) and signs the action memo. [Associated Press, 6/23/2004] He adds in handwriting: “However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?” In signing the memo, Rumsfeld adds for use at Guantanamo Bay 16 more aggressive interrogation procedures to the 17 methods that have long been approved as part of standard US military practice. [New York Times, 8/25/2004] The additional methods, like interrogation sessions of up to 20 hours at a time and the enforced shaving of heads and beards, are otherwise prohibited under US military doctrine. [MSNBC, 6/23/2004]

Entity Tags: William J. Haynes, Donald Rumsfeld

Timeline Tags: Torture of US Captives

David Brant, the head of the Naval Criminal Investigative Service (NCIS), learns of the horrific abuse of a Saudi detainee, Mohamed al-Khatani (sometimes spelled “al-Qahtani”—see February 11, 2008), currently detained at Guantanamo Bay. Al-Khatani is one of several terror suspects dubbed the “missing 20th hijacker”; according to the FBI, al-Khatani was supposed to be on board the hijacked aircraft that crashed in a Pennsylvania field on 9/11 (see (10:06 a.m.) September 11, 2001). Al-Khatani was apprehended in Afghanistan a few months after the terrorist attacks. He is one of the examples of prisoner abuse (see August 8, 2002-January 15, 2003) that Brant takes to Naval General Counsel Alberto Mora (see December 17-18, 2002). In 2006, Brant will say that he believes the Army’s interrogation of al-Khatani was unlawful. If any NCIS agent had engaged in such abuse, he will say, “we would have relieved, removed, and taken internal disciplinary action against the individual—let alone whether outside charges would have been brought.” Brant fears that such extreme methods will taint the cases to be brought against the detainees and undermine any efforts to prosecute them in military or civilian courts. Confessions elicited by such tactics are unreliable. And, Brant will say, “it just ain’t right.” [New Yorker, 2/27/2006]

Entity Tags: David Brant, Alberto Mora, Naval Criminal Investigative Service, Federal Bureau of Investigation, Mohamed al-Khatani

Timeline Tags: Torture of US Captives, Civil Liberties

A photo taken during KSM’s alleged arrest in Pakistan.A photo taken during KSM’s alleged arrest in Pakistan. [Source: Associated Press]Khalid Shaikh Mohammed (KSM) is reportedly arrested in Rawalpindi, Pakistan. [Associated Press, 3/1/2003] Officials claim that he is arrested in a late-night joint Pakistani and FBI raid, in which they also arrest Mustafa Ahmed al-Hawsawi, the purported main financer of the 9/11 attacks. [MSNBC, 3/3/2003] An insider informant allegedly tips off authorities to KSM’s location, and is given the $25 million reward money for his capture (see Shortly Before February 29 or March 1, 2003). However, some journalists immediately cast serious doubts about this arrest. For instance, MSNBC reports, “Some analysts questioned whether Mohammed was actually arrested Saturday, speculating that he may have been held for some time and that the news was made public when it was in the interests of the United States and Pakistan.” [MSNBC, 3/3/2003] There are numerous problems surrounding the US-alleged arrest of KSM:
bullet Witnesses say KSM is not present when the raid occurs. [Associated Press, 3/2/2003; Associated Press, 3/2/2003; Australian Broadcasting Corporation, 3/2/2003; Guardian, 3/3/2003; New York Times, 3/3/2003]
bullet There are differing accounts about which house he is arrested in. [Associated Press, 3/1/2003; Los Angeles Times, 3/2/2003; Los Angeles Times, 3/3/2003]
bullet There are differing accounts about where he was before the arrest and how authorities found him. [Time, 3/1/2003; Washington Post, 3/2/2003; Washington Post, 3/2/2003; New York Times, 3/3/2003; New York Times, 3/4/2003]
bullet Some accounts have him sleeping when the arrest occurs and some don’t. [Los Angeles Times, 3/2/2003; Reuters, 3/2/2003; New York Times, 3/3/2003; Daily Telegraph, 3/4/2003]
bullet Accounts differ on who arrests him—Pakistanis, Americans, or both. [CNN, 3/2/2003; Los Angeles Times, 3/2/2003; New York Times, 3/2/2003; Daily Telegraph, 3/3/2003; London Times, 3/3/2003; Associated Press, 3/3/2003]
bullet There are previously published accounts that KSM may have been killed in September 2002 (see September 11, 2002).
bullet There are accounts that he was captured in June 2002 (see June 16, 2002).
These are just some of the difficulties with the arrest story. There are so many problems with it that one Guardian reporter says, “The story appears to be almost entirely fictional.” [Guardian, 3/6/2003]
Account by 9/11 Commissioners Conflicts - In addition, 9/11 Commission chairman Tom Kean and vice chairman Lee Hamilton will write in a 2006 book that the arrest is made in an apartment in Karachi and carried out by a joint CIA, FBI, and Pakistani team (see Early 2003).
Account by Musharraf Also Conflicts - Also in 2006, Pakistani President Pervez Musharraf will publish a memoir in which he claims that KSM was arrested on February 29, 2003 (instead of the widely cited March 1, 2003), and held by Pakistani forces for three days, “during which time we interrogated him fully. Once we were done with him and had all the information we wanted, we handed him over to the United States government.” [Musharraf, 2006, pp. 193]

Entity Tags: Thomas Kean, Federal Bureau of Investigation, Khalid Shaikh Mohammed, Lee Hamilton, Mustafa Ahmed al-Hawsawi, Pervez Musharraf

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline

Khalid Shaikh Mohammed shortly after arrest. (Note: this picture is from a video presentation on prisoners the Pakistani government gave to BBC filmmakers. It has been adjusted to remove some blue tinge.)Khalid Shaikh Mohammed shortly after arrest. (Note: this picture is from a video presentation on prisoners the Pakistani government gave to BBC filmmakers. It has been adjusted to remove some blue tinge.) [Source: BBC's "The New Al-Qaeda."]Following his arrest in Pakistan (see February 29 or March 1, 2003), al-Qaeda leader Khalid Shaikh Mohammed (KSM) finds himself in CIA custody. After two days of detention in Pakistan, where, he will allege, he is punched and stomped upon by a CIA agent, he is sent to Afghanistan. After being transferred to Guantanamo in 2006, he will discuss his experiences and treatment with officials of the International Committee of the Red Cross (ICRC—see October 6 - December 14, 2006). Mohammed will say of his transfer: “My eyes were covered with a cloth tied around my head and with a cloth bag pulled over it. A suppository was inserted into my rectum. I was not told what the suppository was for.” [New York Review of Books, 3/15/2009]
Naked - He is reportedly placed in a cell naked for several days and repeatedly questioned by females as a humiliation. He is attached to a dog leash and repeatedly yanked into the walls of his cell. He is suspended from the ceiling, chained naked in a painful crouch for long periods, doused with cold water, and kept in suffocating heat. [New Yorker, 8/6/2007; MSNBC, 9/13/2007] On arriving in Afghanistan, he is put in a small cell, where, he will recall, he is “kept in a standing position with my hands cuffed and chained to a bar above my head.” After about an hour, “I was taken to another room where I was made to stand on tiptoes for about two hours during questioning.”
Interrogators - He will add: “Approximately 13 persons were in the room. These included the head interrogator (a man) and two female interrogators, plus about 10 muscle guys wearing masks. I think they were all Americans. From time to time one of the muscle guys would punch me in the chest and stomach.” This is the usual interrogation session that Mohammed will experience over the next few weeks.
Cold Water - They are interrupted periodically by his removal to a separate room. There, he will recall, he is doused with “cold water from buckets… for about 40 minutes. Not constantly as it took time to refill the buckets. After which I would be taken back to the interrogation room.”
No Toilet Access - During one interrogation, “I was offered water to drink; when I refused I was again taken to another room where I was made to lie [on] the floor with three persons holding me down. A tube was inserted into my anus and water poured inside. Afterwards I wanted to go to the toilet as I had a feeling as if I had diarrhea. No toilet access was provided until four hours later when I was given a bucket to use.” When he is returned to his cell, as he will recall, “I was always kept in the standing position with my hands cuffed and chained to a bar above my head.” [New York Review of Books, 3/15/2009] However, he is resistant to these methods, so it is decided he will be transferred to a secret CIA prison in Poland (see March 7 - Mid-April, 2003), where he will be extensively waterboarded and tortured in other ways.

Entity Tags: International Committee of the Red Cross, Khalid Shaikh Mohammed, Central Intelligence Agency

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline

A working group appointed by the Defense Department’s general counsel, William J. Haynes, completes a 100-page-plus classified report justifying the use of torture on national security grounds. The group—headed by Air Force General Counsel Mary Walker and including top civilian and uniformed lawyers from each military branch—consulted representatives of the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency, and other intelligence agencies in drafting the report. It was prepared for Secretary of Defense Donald Rumsfeld and was meant to respond to complaints from commanders working at the Guantanamo Bay base in Cuba who claimed that conventional interrogation tactics were inadequate. The conclusions in the report are similar to those of an August 1, 2002 memo (see August 1, 2002) drafted by the Justice Department’s Office of Legal Counsel (OLC). The OLC is said to have also contributed to this report. [US Department of Defense, 3/6/2003; Wall Street Journal, 6/7/2004; Los Angeles Times, 6/10/2004] The report notes that both Congress and the Justice Department will have difficulty enforcing the law if US military personnel could be shown to be acting as a result of presidential orders. [Washington Post, 6/8/2004]
President's Authority During War Gives Power to Order Torture, Supersede Law - One of the main conclusions of the report is that the president’s authority as commander-in-chief permits him during times of war to approve almost any physical or psychological interrogation method—including torture—irrespective of any domestic or international law. The report finds, “[I]n order to respect the President’s inherent constitutional authority to manage a military campaign… [the 1994 law banning torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.” The draft report clearly states that neither Congress, the courts, nor international law has jurisdiction over the president’s actions when the country is waging war. The report asserts that “without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority” to wage war. Furthermore, “any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the president.” According to the document, the federal Torture Statute simply does not apply. “In order to respect the president’s inherent constitutional authority to manage a military campaign… (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority,” the report states (The parenthetical comment is in the original document). A career military lawyer will later tell the Wall Street Journal that many lawyers disagreed with these conclusions, but that their concerns were overridden by the political appointees heading the drafting of the report. The lawyer explains that instead, military lawyers focused their efforts on limiting the report’s list of acceptable interrogation methods. [Wall Street Journal, 6/7/2004; Washington Post, 6/8/2004]
Guantanamo Bay Not Covered under Torture Restrictions - The report also finds that the 1994 law barring torture “does not apply to the conduct of US personnel” at Guantanamo Bay, nor does it apply to US military interrogations that occurred outside US “maritime and territorial jurisdiction,” such as in Iraq or Afghanistan. [Washington Post, 6/8/2004]
Legal Arguments to Defend against Torture Charges Conflict with International Statutes - The draft report lists several possible arguments that US civilian or military personnel might use to defend themselves against charges of torture or other war crimes. According to the administration’s lawyers, one argument would be that such actions were “necessary” in order to prevent an attack. However, this rationale seems to ignore very clear statements in the Convention Against Torture (see October 21, 1994) which states that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Another line of defense, the report says, would be to claim that the accused had been acting under “superior orders” and that therefore no “moral choice was in fact possible.” Likewise, the report cites a Justice Department opinion, which the draft report says “concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president’s constitutional power.” This also contradicts the Convention against Torture, which states that orders from superiors “may not be invoked as a justification of torture.” The authors of the report also suggest in the draft report that accused officials could argue that they had “mistakenly relied in good faith on the advice of lawyers or experts,” adding, “Good faith may be a complete defense.” The memo also argues that the International Covenant on Political and Civil Rights (ICCPR), to which the US is a party, “does not apply outside the United States or its special maritime and territorial jurisdiction (SMTJ), and that it does not apply to operations of the military during an international armed conflict,” as the US “has maintained consistently.” Since the “Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial jurisdiction of the United States,” the ICCPR does not apply to Guantanamo Bay. The authors are also convinced that officials would not be prosecutable under US law, concluding that “constitutional principles” precluded the possibility that officials could be punished “for aiding the president in exercising his exclusive constitutional authorities” and neither Congress nor the courts had the authority to “require or implement the prosecution of such an individual.” [Wall Street Journal, 6/7/2004]
Defining Parameters of Interrogation Methods - The document attempts to define the parameters of lawful interrogation methods in terms of the degree of pain or psychological manipulation they cause. The report states that the infliction of physical or mental suffering does not constitute torture. To violate Section 2340 A of the US Code, prohibiting physical torture, suffering must be “severe,” the lawyers advise, noting that according to a dictionary definition, this would mean that the pain “must be of such a high level of intensity that… [it] is difficult for the subject to endure.” It must also be “inflicted with specific intent,” they say, meaning that the perpetrator expressly intends to cause severe pain and suffering. But if the defendant simply used pain and suffering as a means to an end, such specific intent would not exist. Under certain circumstances, the lawyers explain, the US would be justified in resorting to illegal measures like torture or homicide. They argue that such measures should be considered “self-defense” in cases where officials “honestly believe” that such actions would prevent an imminent attack against the US. “Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law,” the draft document asserts. “In sum,” the panel determines, “the defense of superior orders will generally be available for US Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.” Civil law suits, the panel notes, by a foreign victim of torture will not apply to the US government. [US Department of Defense, 3/6/2003; Wall Street Journal, 6/7/2004]
Report May Not Define Practices, Pentagon Implies - A Pentagon spokesman later says the memo represents “a scholarly effort to define the perimeters of the law,” and notes: “What is legal and what is put into practice is a different story.” [Washington Post, 6/8/2004]

Entity Tags: US Department of Justice, US Department of Defense, Office of Legal Counsel (DOJ), International Covenant on Political and Civil Rights, Joint Chiefs of Staff, Convention Against Torture, Defense Intelligence Agency, Donald Rumsfeld, Mary L. Walker, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

Communications antenna at Stare Kiejkuty, the Polish “black site” where Khalid Shaikh Mohammed was held for a time after his capture.Communications antenna at Stare Kiejkuty, the Polish “black site” where Khalid Shaikh Mohammed was held for a time after his capture. [Source: CBC]9/11 planner Khalid Shaikh Mohammed, after being detained and abused for three days in US custody in Afghanistan (see February 29 or March 1, 2003 and Shortly After February 29 or March 1, 2003), is transferred to another CIA-run facility in Poland. [New Yorker, 8/6/2007; New York Review of Books, 3/15/2009] The facility is later identified as Stare Kiejkuty, a secret prison near the Szymany military airbase. Mohammed is flown in on a Gulfstream N379P jet known to prison officials as “the torture taxi.” The plane is probably piloted by “Jerry M,” a 56-year-old pilot for Aero Contractors, a company that transfers prisoners around the world for US intelligence agencies. [Der Spiegel (Hamburg), 4/27/2009] He is dressed in a tracksuit, blindfolded, hooded, has sound-blocking headphones placed over his ears, and is flown “sitting, leaning back, with my hands and ankles shackled in a high chair,” as he will later tell officials of the International Committee of the Red Cross (ICRC—see October 6 - December 14, 2006). He later says he manages to sleep a few hours, for the first time in days. Upon arrival, Mohammed is stripped naked and placed in a small cell “with cameras where I was later informed by an interrogator that I was monitored 24 hours a day by a doctor, psychologist, and interrogator.” The walls are wooden and the cell measures some 10 by 13 feet. [New York Review of Books, 3/15/2009; Der Spiegel (Hamburg), 4/27/2009]
'I Would Be Brought to the Verge of Death and Back Again' - As he will later recall, it was in this detention camp that “the most intense interrogation occurred, led by three experienced CIA interrogators, all over 65 years old and all strong and well trained.” The interrogators tell him that they have received the “green light from Washington” to give him “a hard time” (see Late September 2001 and September 25, 2002). As he will later recall: “They never used the word ‘torture’ and never referred to ‘physical pressure,’ only to ‘a hard time.’ I was never threatened with death, in fact I was told that they would not allow me to die, but that I would be brought to the ‘verge of death and back again.‘… I was kept for one month in the cell in a standing position with my hands cuffed and shackled above my head and my feet cuffed and shackled to a point in the floor.” When he falls asleep, “all my weight [is] applied to the handcuffs around my wrist resulting in open and bleeding wounds.” The ICRC will later confirm that Mohammed bears scars consistent with his allegations on both wrists and both ankles. “Both my feet became very swollen after one month of almost continual standing.”
Interrogations - He is interrogated in a different room, in sessions lasting anywhere from four to eight hours, and with a wide variety of participants. Sometimes women take part in the interrogations. A doctor is usually present. “If I was perceived not to be cooperating I would be put against a wall and punched and slapped in the body, head, and face. A thick flexible plastic collar would also be placed around my neck so that it could then be held at the two ends by a guard who would use it to slam me repeatedly against the wall. The beatings were combined with the use of cold water, which was poured over me using a hose-pipe. The beatings and use of cold water occurred on a daily basis during the first month.”
'Alternative Procedures' - The CIA interrogators use what they will later call “alternative procedures” on Mohammed, including waterboarding (see After March 7, 2003) and other techniques. He is sprayed with cold water from a hose-pipe in his cell and the “worst day” is when he is beaten for about half an hour by one of the interrogators. “My head was banged against the wall so hard that it started to bleed. Cold water was poured over my head. This was then repeated with other interrogators.” He is then waterboarded until a doctor intervenes. He gets an hours’s sleep and is then “put back in my cell standing with my hands shackled above my head.” He sleeps for a “few minutes” on the floor of cell after the torture sessions, but does not sleep well, “due to shackles on my ankles and wrists.” The toilet consists of a bucket in the cell, which he can use on request, but “I was not allowed to clean myself after toilet during the first month.” In the first month he is only fed on two occasions, “as a reward for perceived cooperation.” He gets Ensure [a liquid nutritional supplement] to drink every four hours. If he refuses it, “then my mouth was forced open by the guard and it was poured down my throat by force.” He loses 18 kg in the first month, after which he gets some clothes. In addition, “Artificial light was on 24 hours a day, but I never saw sunlight.” [New York Review of Books, 3/15/2009]
Deliberately False Information - As he will later tell ICRC officials, he often lies to his interrogators: “During the harshest period of my interrogation, I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop.… I’m sure that the false information I was forced to invent… wasted a lot of their time and led to several false red-alerts being placed in the US.” [New York Review of Books, 3/15/2009] It will later be reported that up to 90 percent of Mohammed’s confessions may be unreliable. Furthermore, he will recant many of his statements (see August 6, 2007).

Entity Tags: Jack Goldsmith, “Jerry M”, Aero Contractors, International Committee of the Red Cross, David S. Addington, Central Intelligence Agency, Khalid Shaikh Mohammed, Stare Kiejkuty

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline

After being transferred from Afghanistan to Poland (see March 7 - Mid-April, 2003), alleged 9/11 mastermind Khalid Shaikh Mohammed (KSM) is repeatedly waterboarded by the CIA, a technique simulating drowning that international law classifies as torture. He is only one of about four high-ranking detainees waterboarded, according to media reports (see May 2002-2003). [New Yorker, 8/6/2007; MSNBC, 9/13/2007; New York Review of Books, 3/15/2009] He will recall: “I would be strapped to a special bed, which could be rotated into a vertical position. A cloth would be placed over my face. Cold water from a bottle that had been kept in a fridge was then poured onto the cloth by one of the guards so that I could not breathe.… The cloth was then removed and the bed was put into a vertical position. The whole process was then repeated during about one hour. Injuries to my ankles and wrists also occurred during the waterboarding as I struggled in the panic of not being able to breathe. Female interrogators were also present… and a doctor was always present, standing out of sight behind the head of [the] bed, but I saw him when he came to fix a clip to my finger which was connected to a machine. I think it was to measure my pulse and oxygen content in my blood. So they could take me to [the] breaking point.” [New York Review of Books, 3/15/2009] Accounts about the use of waterboarding on KSM differ. He says he is waterboarded five times. [New York Review of Books, 3/15/2009] However, contradictory reports will later appear:
bullet NBC News will claim that, according to multiple unnamed officials, KSM underwent at least two sessions of waterboarding and other extreme measures before talking. One former senior intelligence official will say, “KSM required, shall we say, re-dipping.” [MSNBC, 9/13/2007]
bullet In 2005, former and current intelligence officers and supervisors will tell ABC News that KSM “won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before begging to confess.” [ABC News, 11/18/2005] In 2007, a former CIA official familiar with KSM’s case will tell ABC News a sligntly different version of events: “KSM lasted the longest under waterboarding, about a minute and a half, but once he broke, it never had to be used again.” A senior CIA official will claim that KSM later admitted he only confessed because of the waterboarding. [ABC News, 9/14/2007] In November 2005, John Sifton of Human Rights Watch will say of waterboarding, “The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law.” [ABC News, 11/18/2005]
bullet The New York Times will claim that “KSM was subjected to intense and repeated torture techniques that, at the time, were specifically designated as illegal under US law.” Some claim that KSM gives useful information. “However, many of the officials interviewed say KSM provided a raft of false and exaggerated statements that did not bear close scrutiny—the usual result, experts say, of torture.” CIA officials stopped the “extreme interrogation” sessions after about two weeks, worrying that they might have exceeded their legal bounds. Apparently pressure to stop comes from Jack Goldsmith, head of the Justice Department’s Office of Legal Counsel, who is troubled about updates from KSM’s interrogations and raises legal questions. He is angrily opposed by the White House, particularly David Addington, a top aide to Vice President Dick Cheney. [New York Times, 10/4/2007]
bullet The New Yorker will report that officials who have seen a classified Red Cross report say that KSM claims he was waterboarded five times. Further, he says he was waterboarded even after he started cooperating. But two former CIA officers will insist that he was waterboarded only once. One of them says that KSM “didn’t resist. He sang right away. He cracked real quick. A lot of them want to talk. Their egos are unimaginable. KSM was just a little doughboy.” [New Yorker, 8/6/2007]
bullet A different ABC News account will claim that KSM was al-Qaeda’s toughest prisoner. CIA officers who subject themselves to waterboarding last only about 14 seconds, but KSM was able to last over two minutes. [ABC News, 11/18/2005]
bullet In 2009, evidence will surface that indicates KSM was waterboarded up to 183 times (see April 16, 2009 and April 18, 2009).

Entity Tags: Khalid Shaikh Mohammed, Central Intelligence Agency, John Sifton

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline

The Justice Department sends a legal memorandum to the Pentagon that claims federal laws prohibiting torture, assault, maiming, and other crimes do not apply to military interrogators questioning al-Qaeda captives because the president’s authority as commander in chief overrides the law. The 81-page memo, written by the Office of Legal Counsel’s John Yoo, is not publicly revealed for over five years (see April 1, 2008).
President Can Order Maiming, Disfigurement of Prisoners - Yoo writes that infractions such as slapping, shoving, and poking detainees do not warrant criminal liability. Yoo goes even farther, saying that the use of mind-altering drugs can be used on detainees as long as they do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” [John C. Yoo, 3/14/2003 pdf file; Washington Post, 4/2/2008] Yoo asks if the president can order a prisoner’s eyes poked out, or if the president could order “scalding water, corrosive acid or caustic substance” thrown on a prisoner. Can the president have a prisoner disfigured by slitting an ear or nose? Can the president order a prisoner’s tongue torn out or a limb permanently disabled? All of these assaults are noted in a US law prohibiting maiming. Yoo decides that no such restrictions exist for the president in a time of war; that law does not apply if the president deems it inapplicable. The memo contains numerous other discussions of various harsh and tortuous techniques, all parsed in dry legal terms. Those tactics are all permissible, Yoo writes, unless they result in “death, organ failure, or serious impairment of bodily functions.” Some of the techniques are proscribed by the Geneva Conventions, but Yoo writes that Geneva does not apply to detainees captured and accused of terrorism. [Washington Post, 4/6/2008]
'National Self-Defense' - Yoo asserts that the president’s powers as commander in chief supersede almost all other laws, even Constitutional provisions. “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network,” Yoo writes. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.… Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context.” Interrogators who harmed a prisoner are protected by a “national and international version of the right to self-defense.” He notes that for conduct during interrogations to be illegal, that conduct must “shock the conscience,” an ill-defined rationale that will be used by Bush officials for years to justify the use of waterboarding and other extreme interrogation methods. Yoo writes, “Whether conduct is conscience-shocking turns in part on whether it is without any justification,” explaining that that it would have to be inspired by malice or sadism before it could be prosecuted.
Memo Buttresses Administration's Justifications of Torture - The Justice Department will tell the Defense Department not to use the memo nine months later (see December 2003-June 2004), but Yoo’s reasoning will be used to provide a legal foundation for the Defense Department’s use of aggressive and potentially illegal interrogation tactics. The Yoo memo is a follow-up and expansion to a similar, though more narrow, August 2002 memo also written by Yoo (see August 1, 2002). Defense Secretary Donald Rumsfeld will suspend a list of aggressive interrogation techniques he had approved, in part because of Yoo’s memo, after an internal revolt by Justice Department and military lawyers (see February 6, 2003, Late 2003-2005 and December 2003-June 2004). However, in April 2003, a Pentagon working group will use Yoo’s memo to endorse the continued use of extreme tactics. [John C. Yoo, 3/14/2003 pdf file; Washington Post, 4/2/2008; New York Times, 4/2/2008]
Justice Department Claims Attorney General Knows Nothing of Memo - Yoo sends the memo to the Pentagon without the knowledge of Attorney General John Ashcroft or Ashcroft’s deputy, Larry Thompson, senior department officials will say in 2008. [Washington Post, 4/4/2008]

Entity Tags: US Department of Justice, John C. Yoo, Larry D. Thompson, Al-Qaeda, Office of Legal Counsel (DOJ), Donald Rumsfeld, John Ashcroft, Geneva Conventions, US Department of Defense

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

Defense Secretary Donald Rumsfeld signs a memo on interrogation methods approving 24 of the 35 techniques recommended by the Pentagon working group (see April 4, 2003) earlier in the month. The new set of guidelines, to be applied to prisoners at Guantanamo and Afghanistan, is a somewhat softer version of the initial interrogation policy that Rumsfeld approved in December 2002 (see December 2, 2002). [Roth and Malinowski, 5/3/2004; Washington Post, 5/11/2004; Age (Melbourne), 5/13/2004; Washington Post, 5/13/2004; Los Angeles Times, 5/22/2004; Newsweek, 5/24/2004; Wall Street Journal, 6/7/2004; MSNBC, 6/23/2004; Truthout (.org), 6/28/2004] Several of the techniques listed are ones that the US military trains Special Forces to prepare for in the event that they are captured by enemy forces (see December 2001 and July 2002). [New York Times, 5/13/2004]
Two Classes of Methods - The list is divided into two classes: tactics that are authorized for use on all prisoners and special “enhanced measures” that require the approval of Lieutenant General Ricardo Sanchez. The latter category of methods includes tactics that “could cause temporary physical or mental pain,” like “sensory deprivation,” “stress positions,” “dietary manipulation,” forced changes in sleep patterns, and isolated confinement. [Washington Post, 5/11/2004; Washington Post, 5/13/2004] Other techniques include “change of scenery down,” “dietary manipulation,” “environmental manipulation,” and “false flag.” The first 18 tactics listed all appear in the 1992 US Army Field Manual (FM) 34-52, with the exception of the so-called “Mutt-and-Jeff” approach, which is taken from an obsolete 1987 military field manual (1987 FM 34-52). [USA Today, 6/22/2004] The approved tactics can be used in conjunction with one another, essentially allowing interrogators to “pile on” one harsh technique after another. Categories such as “Fear Up Harsh” and “Pride and Ego Down” remain undefined, allowing interrogators to interpret them as they see fit. And Rumsfeld writes that any other tactic not already approved can be used if he gives permission. Author and reporter Charlie Savage will later write, “In other words, there were no binding laws and treaties anymore—the only limit was the judgment and goodwill of executive branch officials. ” [Savage, 2007, pp. 181] The use of forced nudity as a tactic is not included in the list. The working group rejected it because its members felt it might be considered inhumane treatment under international law. [Associated Press, 6/23/2004]
Result of Discussions among Pentagon Officials - The memo, marked for declassification in 2013 [Truthout (.org), 6/28/2004] , is the outcome, according to Deputy General Counsel Daniel Dell’Orto, of discussions between Rumsfeld, William J. Haynes, Douglas Feith, Paul Wolfowitz, and General Richard Myers. [Washington File, 6/23/2004] One US official explains: “There are very specific guidelines that are thoroughly vetted. Everyone is on board. It’s legal.” However in May 2004, it will be learned that there was in fact opposition to the new guidelines. Pentagon lawyers from the Army Judge Advocate General’s office had objected (see May 2003 and October 2003) and many officials quietly expressed concerns that they might have to answer for the policy at a later date (see (April 2003)). [Washington Post, 5/11/2004; Washington Post, 5/13/2004]

Entity Tags: Donald Rumsfeld, Douglas Feith, Paul Wolfowitz, Richard B. Myers, William J. Haynes, Ricardo S. Sanchez, Daniel J. Dell’Orto, Charlie Savage

Timeline Tags: Torture of US Captives, Civil Liberties

CIA officials ask for reauthorization of the controversial harsh interrogation methods (see April 2002 and After and August 1, 2002) that had been withdrawn (see December 2003-June 2004) after the revelation of abuse and torture at Iraq’s Abu Ghraib prison (see November 5, 2003). The CIA has captured a new al-Qaeda suspect in Asia, and top agency officials ask the National Security Council Principals Committee—Vice President Dick Cheney, National Security Adviser Condoleezza Rice, Defense Secretary Donald Rumsfeld, CIA Director George Tenet, Secretary of State Colin Powell, and Attorney General John Ashcroft—for permission to use extreme methods of interrogation against the new detainee. Rice, who chairs the Principals Committee, says: “This is your baby. Go do it.” [ABC News, 4/9/2008] The name of the new suspect captured in Asia is not mentioned, but Hambali is captured in Thailand in August 2003 (see August 12, 2003), and he is the only prominent al-Qaeda figure arrested that summer. He is considered one of al-Qaeda’s most important leaders. There are some reports that he is one of only about four prisoners directly waterboarded by the US (see Shortly After August 12, 2003).

Entity Tags: Richard (“Dick”) Cheney, Central Intelligence Agency, Al-Qaeda, Colin Powell, Condoleezza Rice, George J. Tenet, John Ashcroft, Hambali, National Security Council, Donald Rumsfeld

Timeline Tags: Torture of US Captives, Complete 911 Timeline

At Guantanamo, detainee Mohamed al-Khatani is given a tranquilizer, fitted with blackened goggles, and put on a plane. He is told he is being sent to a Middle Eastern country. What happens next is probably equivalent to the technique authorized under the description “false flag” by Defense Secretary Donald Rumsfeld’s April 16, 2003 memo on interrogation methods (see April 16, 2003). The plane returns to Guantanamo several hours later and he is taken to an isolation cell in the base’s brig where he is subjected to harsh interrogation procedures. He is led to believe that his interrogators are Egyptian national security operatives. In order to maintain the deception, the International Committee of the Red Cross (ICRC) is not permitted to visit Khatani during this time. [New York Times, 1/1/2005]

Entity Tags: Mohamed al-Khatani, Donald Rumsfeld, International Committee of the Red Cross

Timeline Tags: Torture of US Captives

Geoffrey Miller.Geoffrey Miller. [Source: US Army]Major General Geoffrey Miller, who oversees the prison at Guantanamo (see November 4, 2002), flies to Iraq for a 10-day consulting trip (see August 18, 2003). He is part of a team “experienced in strategic interrogation… to review current Iraqi theater ability to rapidly exploit internees for actionable intelligence” and to review the arrangements at the US military prisons in Iraq. [Washington Post, 5/9/2004; New Yorker, 5/17/2004; Washington Post, 8/24/2004; Savage, 2007, pp. 190] The team consists of 17 interrogation experts from Guantanamo Bay, and includes officials from the CIA and the Defense Intelligence Agency (DIA). [Washington Post, 6/12/2004]
Attempt to Increase Flow of 'Actionable Intelligence' - The Pentagon’s decision to dispatch the team on this mission was influenced by the military’s growing concern that the failure of coalition forces to quell resistance against the occupation was linked to a dearth in “actionable intelligence” (see August 2003). [New Yorker, 5/24/2004] Miller has therefore come to help Brigadier General Barabara Fast improve the results of her interrogation operations. More to the point, he is supposed to introduce her to the techniques being used at Guantanamo. [New Yorker, 6/21/2004; Signal Newspaper, 7/4/2004] Officials are hoping detainees will provide intelligence on weapons of mass destruction and Saddam Hussein, who is still on the loose. [Washington Post, 5/16/2004]
'Gitmoizing' Abu Ghraib - “[Miller] came up there and told me he was going to ‘Gitmoize’ the detention operation,” Brigadier General Janis L. Karpinski, later recalls. [Washington Post, 5/9/2004] Miller will later deny he used the word “Gitmoize.” [Washington Post, 5/12/2004] During Miller’s visit, a Joint Interrogation and Debriefing Center (JIDC) is established in order to centralize the intelligence operations at the prison. Captain Carolyn A. Wood is made officer in charge (OIC) of the Interrogation Coordination Element (ICE), within the JIDC. [US Department of Defense, 8/23/2004 pdf file] Before returning to Washington, Miller leaves a list of acceptable interrogation techniques—based on what has been used in Guatanamo—posted on a wall in Abu Ghraib, which says that long term isolation, sleep disruption, “environmental manipulation,” and “stress positions” can be used to facilitate interrogations, but only with the approval of Lieutenant General Ricardo Sanchez on a case-by-case basis. [Washington Post, 5/21/2004] The use of dogs is also included, even though the technique was banned at Guantanamo eight months before by Defense Secretary Donald Rumsfeld (see January 15, 2003). [Washington Post, 7/19/2004; US Department of Defense, 8/23/2004 pdf file] Karpinski later recalls, “He said they are like dogs and if you allow them to believe at any point that they are more than a dog then you’ve lost control of them.” [BBC, 6/15/2004] Miller’s visit to Iraq heralds some significant changes, which include, first, the introduction of more coercive interrogation tactics; second, the taking control of parts of the Abu Ghraib facility by military intelligence; and third, the use of MPs in the intelligence collection process. During his visit, Miller discusses interrogation techniques with military intelligence chief Colonel Thomas M. Pappas. [New York Times, 5/13/2004]
'Snowballing' Effect of Chaos, Brutality - “The operation was snowballing,” Samuel Provance, a US military intelligence officer, will later recall, describing the situation at Abu Ghraib after Miller’s visit. “There were more and more interrogations. The chain of command was putting a lot of resources into the facility.” And Karpinski will later say that she was being shut out of the process at about this time. “They continued to move me farther and farther away from it.” [Washington Post, 5/20/2004] Major General Anthony Taguba (see March 9, 2004) will later determine that Miller’s visit helped bring about the complete breakdown of discipline at the prison: “Interrogators actively requested,” at Miller’s behest, “that MP guards set physical and mental conditions for favorable interrogations of witnesses.” In essence, Miller tells guards to “soften up” prisoners so they will not be able to resist their inquisitors. Miller will later deny any responsibility for the Abu Ghraib torture program (see May 4, 2004). [Savage, 2007, pp. 190]

Entity Tags: Barbara G. Fast, Antonio M. Taguba, Carolyn A. Wood, Samuel Provance, Janis L. Karpinski, Thomas M. Pappas, Geoffrey D. Miller

Timeline Tags: Torture of US Captives

The legal experts at the Office of the Staff Judge Advocate (OSJA) issue a memorandum amending the set of interrogation rules included in a September 10 memo (see September 10, 2003) by military legal experts in Iraq. The additional methods included in that memo can only be used with prior approval by Lieutenant General Ricardo Sanchez on a case-by-case basis, the OSJA document says. [US Department of Defense, 8/23/2004 pdf file] Like Major General Geoffrey Miller, the OSJA stresses the importance of collaboration between MPs and intelligence personnel. It also provides “safeguards such as legal reviews of the interrogation plans and scrutiny of how they were carried out,” the Washington Post later reports. [Washington Post, 6/12/2004] Additionally, the memo discusses how the Arab fear of dogs can be exploited. [US Department of Defense, 8/23/2004 pdf file] According to a later report (see August 25, 2004) by General George R. Fay, interrogators at Abu Ghraib immediately adopt the new set of rules. But Staff Judge Advocate Colonel Mark Warren will recall that the memo is not implemented until its approval by the US Central Command (CENTCOM). [US Department of Defense, 8/23/2004 pdf file] Evidence, however, supports the Fay report. “After mid-September 2003,” Fay will write, “all [s]oldiers assigned to Abu Ghraib had to read a memorandum titled IROE [Interrogations Rules of Engagement], acknowledging they understood the ICRP, and sign a confirmation sheet indicating they had read and understood the ICRP.” [US Department of Defense, 8/23/2004 pdf file] According to classified documents uncovered by the Senate Armed Services Committee (see April 21, 2009), CENTCOM lawyers begin objecting to the policies almost immediately. One e-mail, from a CENTCOM lawyer to a Staff Judge Advocate, warns, “Many of the techniques appear to violate [Geneva Conventions] III and IV and should not be used.” [Huffington Post, 4/21/2009]

Entity Tags: George R. Fay, Senate Armed Services Committee, Geoffrey D. Miller, Marc Warren, Ricardo S. Sanchez

Timeline Tags: Torture of US Captives

Jack Goldsmith succeeds Jay Bybee as the head of the Justice Department’s Office of Legal Counsel (OLC). The OLC essentially performs two functions: advising the executive branch on the legal limits of presidential power, and crafts legal justifications for the actions of the president and the executive branch. Goldsmith, who along with fellow Justice Department counsel and law professor John Yoo, is seen as one of the department’s newest and brightest conservative stars. But instead of aiding the Bush administration in expanding the power of the executive branch, Goldsmith will spend nine tumultuous months battling the White House on issues such as the NSA’s warrantless wiretapping program, the administration’s advocacy of torture in the interrogation of terrorism suspects, and the extralegal detention and military tribunals of “enemy combatants.” Goldsmith will find himself at odds with Yoo, the author of two controversial OLC memos that grant the US government wide latitude in torturing terror suspects (see January 9, 2002 and August 1, 2002), with White House counsel and future attorney general Alberto Gonzales, and with the chief aide to Vice President Dick Cheney, David Addington, who along with Cheney is one of the strongest advocates of the so-called “unitary executive” theory of governance, which says the president has virtually unlimited powers, especially in the areas of national security and foreign policy, and is not always subject to Congressional or judicial oversight. Within hours of Goldsmith’s swearing-in, Goldsmith receives a phone call from Gonzales asking if the Fourth Geneva Convention, which protects civilians in war zones such as Iraq, covers terrorists and insurgents as well. Goldsmith, after intensive review with other lawyers in and out of the Justice Department, concludes that the conventions do indeed apply. Ashcroft concurs. The White House does not. Goldsmith’s deputy, Patrick Philbin, says to Goldsmith as they drive to the White House to meet with Gonzales and Addington, “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” Philbin’s prediction is accurate; Addington is, Goldsmith recalls, “livid.” The physically and intellectually imposing Addington thunders, “The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision.” Addington refuses to accept Goldsmith’s explanations. Months later, an unmollified Addington will tell Goldsmith in an argument about another presidential decision, “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” These initial encounters set the tone for Goldsmith’s stormy tenure as head of the OLC. Goldsmith will lead a small group of administration lawyers in what New York Times Magazine reporter Jeffrey Rosen calls a “behind-the-scenes revolt against what [Goldsmith] considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror,” Goldsmith will resign in June of 2004 (see June 17, 2004). [New York Times Magazine, 9/9/2007]

Entity Tags: Richard (“Dick”) Cheney, US Department of Justice, Office of Legal Counsel (DOJ), John C. Yoo, Jack Goldsmith, David S. Addington, Alberto R. Gonzales, National Security Agency, Jay S. Bybee, John Ashcroft, Jeffrey Rosen

Timeline Tags: Civil Liberties

Jack Goldsmith, the new head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), finds himself embroiled in a huge, if secretive, controversy over Justice Department lawyer John Yoo’s torture memos (see January 9, 2002 and January 25, 2002). Yoo, who wrote the original memos over former OLC chief Jay Bybee’s signature, had placed the OLC in the position of asserting that torture can indeed be used against terror suspects. Goldsmith disagrees, feeling that Yoo’s definitions of torture are far too narrow and give far too much latitude to US interrogators. He also believes that Yoo’s assertions of near-unchecked presidential power to authorize torture—at the direct expense of Congressional and judicial oversight—has no legal basis. And, Goldsmith worries, the opinions could be interpreted as a clumsy, “tendentious” attempt to protect Bush officials from criminal charges. The conflict between Goldsmith and Yoo will cost the two men their friendship. “I was basically taking steps to fix the mistakes of a close friend, who I knew would be mad about it,” Goldsmith will recall in 2007. “We don’t talk anymore, and that’s one of the many sad things about my time in government.” Goldsmith decides to withdraw the follow-up March 2003 torture memo, and tells White House officials they cannot rely on it any longer. Actually doing so proves a tricky business. [New York Times Magazine, 9/9/2007]
'Serious, Serious Problems' - Goldsmith will say in September 2007: “As soon as I absorbed the opinions I realized… that my reaction to them was a big problem. The Office of Legal Counsel rarely overturns its prior opinions, and even more rarely does so within an administration, and even more rarely than that, in the same administration about something this important. I didn’t find any precedent for it. And I did not want to do anything to affect either the programs or the underlying opinions. But they were serious, serious problems, and I knew if and when I was asked to stand by them that I would have a very hard time doing so.” [Newsweek, 9/8/2007]
Pressure from Abu Ghraib Scandal - The legal and bureaucratic niceties of withdrawing the memos become moot when, in April 2004, the Abu Ghraib scandal breaks (see Mid-April 2004), and when in June 2004, the first memo is leaked to the media. “After the leak, there was a lot of pressure on me within the administration to stand by the opinion,” he later says, “and the problem was that I had decided six months earlier that I couldn’t stand by the opinion.” [New York Times Magazine, 9/9/2007] “I had determined that the analysis was flawed,” he will recall. “But I hadn’t determined the underlying techniques were illegal. After Abu Ghraib, there was enormous pressure for me to stand by the decisions… and I couldn’t do so. I had already made up my mind many months earlier and I wasn’t about to change it. But I struggled for several days with what the consequences might be of withdrawing the opinion, because I wasn’t in the position to make an independent ruling on the other techniques. I certainly didn’t think they were unlawful, but I couldn’t get an opinion that they were lawful either. So I struggled to repudiate the flawed opinion while not causing massive disruption and fright throughout the counterterrorism world related to interrogation. And I ultimately decided that I had to withdraw those and under suspicions, stand by it, because it was so thoroughly flawed.” [Newsweek, 9/8/2007]
White House Resists Change - Though Goldsmith has the support of his boss, Attorney General John Ashcroft, Ashcroft’s deputy, James Comey, and his own deputy, Patrick Philbin, he knows the White House will fight the withdrawal. Goldsmith will decide to issue the withdrawal and then resign his position (see June 17, 2004), effectively forcing the administration to either quietly accept the withdrawal, or fight it and make his resignation a media circus. “If the story had come out that the US government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” he later recalls. “The timing was designed to ensure that the decision stuck.” Vice President Dick Cheney’s chief aide, David Addington, among other White House officials, is furious over the withdrawal of the torture opinion (interestingly, White House counsel and future attorney general Alberto Gonzales will modify his own opposition to the withdrawals later, telling Goldsmith in 2007, “I guess those opinions really were as bad as you said”). [New York Times Magazine, 9/9/2007]
Expansion of Presidential Power - Addington asks Goldsmith incredulously, “Why are you trying to give away the president’s power?” Like Cheney, Addington believes, in Goldsmith’s words, “that the very act of asking for Congress’s help would imply, contrary to the White House line, that the president needed legislative approval and could not act on his own. The president’s power would diminish, Addington thought, if Congress declined its support once asked, especially if it tried to restrict presidential power in some way. Congress had balked, during the month after 9/11, at giving the president everything he had asked for in the Congressional authorization to use force and the Patriot Act. Things would only be worse in 2004 and beyond, Addington believed.” Addington’s two questions are always, Goldsmith writes, “‘Do we have the legal power to do it ourselves?’ (meaning on the president’s sole authority), and ‘Might Congress limit our options in ways that jeopardize American lives?’” While Goldsmith and his colleagues agree that the president has the power, and that seeking Congressional approval might tie the White House’s hands more so than the administration is willing to accept, Goldsmith worries that an unfavorable Supreme Court decision would undercut Bush’s authority much more so than any restrictions passed by a compliant, Republican-led Congress. Addington sees things in very simple terms: ”“We’re going to push and push and push until some larger force makes us stop,” Addington says on several occasions. Addington tells Goldsmith, “Now that you’ve withdrawn legal opinions that the president of the United States has been relying on, I need you to go through all of [the OLC terror memos] and let me know which ones you still stand by.” Goldsmith will do just that, further angering Addington. [Savage, 2007, pp. 184; Slate, 9/11/2007]
Absolute Power Required to Defend Nation - Goldsmith later writes: “He and, I presumed, his boss viewed power as the absence of constraint. These men believed that the president would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading constraint for power. It seemed never to occur to them that it might be possible to increase the president’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch. When it came to terrorism, they viewed every encounter outside the innermost core of most trusted advisers as a zero-sum game that if they didn’t win they would necessarily lose.” [Slate, 9/11/2007]

Entity Tags: John Ashcroft, John C. Yoo, Jay S. Bybee, Office of Legal Counsel (DOJ), James B. Comey Jr., David S. Addington, Patrick F. Philbin, Alberto R. Gonzales, Bush administration (43), Daniel Levin, Jack Goldsmith, US Department of Justice

Timeline Tags: Civil Liberties

The Washington Post reveals the existence of a secret August 2002 memo from the Justice Department. This memo advised the White House that torturing al-Qaeda terrorists in captivity “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in the US war on terrorism (see August 1, 2002). The legal reasoning was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the military detention center at Guantanamo Bay (see March 6, 2003). Bush officials say that despite the memo, it has abided by the Geneva Conventions and other international treaties proscribing torture (see February 7, 2002). The incidents at Abu Ghraib, where numerous Iraqi prisoners were tortured, maimed, and sometimes murdered, were not policy, officials say. Human rights organizations and civil libertarians are appalled at the memo. “It is by leaps and bounds the worst thing I’ve seen since this whole Abu Ghraib scandal broke,” says Tom Malinowski of Human Rights Watch. “It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations.” A senior Pentagon official says that the Judge Advocate Generals (JAGs) were quick to challenge the Justice Department opinion when it was promoted by the Pentagon. “Every flag JAG lodged complaints,” the official says. A senior military attorney says of the memo: “It’s really unprecedented. For almost 30 years we’ve taught the Geneva Convention one way. Once you start telling people it’s okay to break the law, there’s no telling where they might stop.” [Washington Post, 6/8/2004] Attorney General John Ashcroft tells the Senate Judiciary Committee that he will not discuss the contents of the August 2002 memo, nor turn it over to the committee. “I believe it is essential to the operation of the executive branch that the president has the opportunity to get information from the attorney general that is confidential,” he says. [Washington Post, 6/8/2004]

Entity Tags: Senate Judiciary Committee, Bush administration (43), Geneva Conventions, John Ashcroft, Tom Malinowski, US Department of Justice, Judge Advocate General Corps, US Department of Defense

Timeline Tags: Torture of US Captives, Civil Liberties

During the annual G-8 economic summit, held in Sea Island, Georgia [2004 G8 Summit, 2004] , President Bush rejects the notion that he approved the use of torture. “The authorization I gave,” the president says, “was that all we did should be in accordance with American law and consistent with our international treaty obligations. That’s the message I gave our people.” He adds, “What I authorized was that we stay within the framework of American law.” And to emphasize his point, he says: “Listen, I’ll say it one more time.… The instructions that were given were to comply with the law. That should reassure you. We are a nation of laws. We follow the law. We have laws on our books. You could go look at those laws and that should reassure you.” [US President, 6/21/2004] During the summit, the foreign ministers of the participating countries are suddenly called to Washington to meet with Bush and Secretary of State Colin Powell. As Canadian Foreign Minister Bill Graham will later recall: “Colin suddenly phoned us all up and said, ‘We’re going to the White House this morning.’ Now, this is curious, because normally the heads of government don’t give a damn about foreign ministers. We all popped in a bus and went over and were cordially received by Colin and President Bush. The president sat down to explain that, you know, this terrible news had come out about Abu Ghraib and how disgusting it was. The thrust of his presentation was that this was a terrible aberration; it was un-American conduct. This was not American. [German Foreign Minister] Joschka Fischer was one of the people that said, ‘Mr. President, if the atmosphere at the top is such that it encourages or allows people to believe that they can behave this way, this is going to be a consequence.’ The president’s reaction was: ‘This is un-American. Americans don’t do this. People will realize Americans don’t do this.’ The problem for the United States, and indeed for the free world, is that because of this—Guantanamo, and the ‘torture memos’ from the White House (see November 6-10, 2001 and August 1, 2002), which we were unaware of at that time—people around the world don’t believe that anymore. They say, ‘No, Americans are capable of doing such things and have done them, all the while hypocritically criticizing the human-rights records of others.’” [Vanity Fair, 2/2009]

Entity Tags: Bill Graham, George W. Bush, Colin Powell, Joschka Fischer

Timeline Tags: Torture of US Captives, Civil Liberties

Jack Goldsmith, once considered a rising star in the Bush administration (see October 6, 2003), resigns under fire from his position as chief of the Justice Department’s Office of Legal Counsel (OLC). In his nine-month tenure, Goldsmith fought against the administration’s warrantless wiretapping program, its advocacy of torture, and its policy of extrajudicial detention and trial for terror suspects. Goldsmith will not discuss his objections to the administration’s policy initiatives until September 2007, when he will give interviews to a variety of media sources in anticipation of the publication of his book, The Terror Presidency. Goldsmith led a small, in-house revolt of administration lawyers against what they considered to be the constitutional excesses of the legal policies advocated by the administration in its war on terrorism. “I was disgusted with the whole process and fed up and exhausted,” he will recall. Goldsmith chooses to remain quiet about his resignation, and as a result, his silence will be widely misinterpreted by media, legal, and administration observers. Some even feel that Goldsmith should be investigated for his supposed role in drafting the torture memos (see January 9, 2002, August 1, 2002, and December 2003-June 2004) that he had actually opposed. “It was a nightmare,” Goldsmith will recall. “I didn’t say anything to defend myself, except that I didn’t do the things I was accused of.” [New York Times Magazine, 9/9/2007] Goldsmith will not leave until the end of July, and will take a position with the Harvard University Law School. Unlike many other Justice Department officials, he will not be offered a federal judgeship, having crossed swords with White House lawyers too many times. [Savage, 2007, pp. 191]

Entity Tags: US Department of Justice, Office of Legal Counsel (DOJ), Jack Goldsmith

Timeline Tags: Civil Liberties

Attempting to stem the flow of bad publicity and world-wide criticism surrounding the revelations of torture at Abu Ghraib prison in Baghdad and similar reports from Guantanamo Bay, Attorney General Alberto Gonzales and Pentagon general counsel William J. Haynes, accompanied by Pentagon lawyer Daniel Dell’Orto, give a lengthy press conference to discuss the US’s position on interrogation and torture. Gonzales and Haynes provide reporters with a thick folder of documents, being made public for the first time. Those documents include the so-called “Haynes Memo” (see November 27, 2002), and the list of 18 interrogation techniques approved for use against detainees (see December 2, 2002 and April 16, 2003). Gonzales and Haynes make carefully prepared points: the war against terrorism, and al-Qaeda in particular, is a different kind of war, they say. Terrorism targets civilians and is not limited to battlefield engagements, nor do terrorists observe the restrictions of the Geneva Conventions or any other international rules. The administration has always acted judiciously in its attempt to counter terrorism, even as it moved from a strictly law-enforcement paradigm to one that marshaled “all elements of national power.” Their arguments are as follows:
Always Within the Law - First, the Bush administration has always acted within reason, care, and deliberation, and has always followed the law. In February 2002, President Bush had determined that none of the detainees at Guantanamo should be covered under the Geneva Conventions (see February 7, 2002). That presidential order is included in the document packet. According to Gonzales and Haynes, that order merely reflected a clear-eyed reading of the actual provision of the conventions, and does not circumvent the law. Another document is the so-called “torture memo” written by the Justice Department’s Office of Legal Counsel (see August 1, 2002). Although such legal opinions carry great weight, and though the administration used the “torture memo” for months to guide actions by military and CIA interrogators, Gonzales says that the memo has nothing to do with the actions at Guantanamo. The memo was intended to do little more than explore “the limits of the legal landscape.” Gonzales says that the memo included “irrelevant and unnecessary” material, and was never given to Bush or distributed to soldiers in the field. The memo did not, Gonzales asserts, “reflect the policies that the administration ultimately adopted.” Unfortunately for their story, the facts are quite different. According to several people involved in the Geneva decision, it was never about following the letter of the law, but was designed to give legal cover to a prior decision to use harsh, coercive interrogation. Author and law professor Phillippe Sands will write, “it deliberately created a legal black hole into which the detainees were meant to fall.” Sands interviewed former Defense Department official Douglas Feith about the Geneva issue, and Feith proudly acknowledged that the entire point of the legal machinations was to strip away detainees’ rights under Geneva (see Early 2006).
Harsh Techniques Suggested from Below - Gonzales and Haynes move to the question of where, exactly, the new interrogation techniques came from. Their answer: the former military commander at Guantanamo, Michael E. Dunlavey. Haynes later describes Dunlavey to the Senate Judiciary Committee as “an aggressive major general.” None of the ideas originated in Washington, and anything signed off or approved by White House or Pentagon officials were merely responses to requests from the field. Those requests were prompted by a recalcitrant detainee at Guantanamo, Mohamed al-Khatani (see August 8, 2002-January 15, 2003), who had proven resistant to normal interrogation techniques. As the anniversary of the 9/11 attacks approached, and fears of a second attack mounted, Dell’Orto says that Guantanamo field commanders decided “that it may be time to inquire as to whether there may be more flexibility in the type of techniques we use on him.” Thusly, a request was processed from Guantanamo through military channels, through Haynes, and ultimately to Defense Secretary Donald Rumsfeld, who approved 15 of the 18 requested techniques to be used against al-Khatani and, later, against other terror suspects (see September 25, 2002 and December 2, 2002). According to Gonzales, Haynes, and Dell’Orto, Haynes and Rumsfeld were just processing a request from military officers. Again, the evidence contradicts their story. The torture memo came as a result of intense pressure from the offices of Rumsfeld and Vice President Cheney. It was never some theoretical document or some exercise in hypothesizing, but, Sands will write, “played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantanamo led to abuses at Abu Ghraib.” Gonzales and Haynes were, with Cheney chief of staff David Addington and Justice Department lawyers John Yoo and Jay Bybee (the authors of the torture memo), “a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse,” in Sands’s words. Dunlavey was Rumsfeld’s personal choice to head the interrogations at Guantanamo; he liked the fact that Dunlavey was a “tyrant,” in the words of a former Judge Advocate General official, and had no problem with the decision to ignore the Geneva Conventions. Rumsfeld had Dunlavey ignore the chain of command and report directly to him, though Dunlavey reported most often to Feith. Additionally, the Yoo/Bybee torture memo was in response to the CIA’s desire to aggressively interrogate another terror suspect not held at Guantanamo, Abu Zubaida (see March 28, 2002). Sands will write, “Gonzales would later contend that this policy memo did ‘not reflect the policies the administration ultimately adopted,’ but in fact it gave carte blanche to all the interrogation techniques later recommended by Haynes and approved by Rumsfeld.” He also cites another Justice Department memo, requested by the CIA and never made public, that spells out the specific techniques in detail. No one at Guantanamo ever saw either of the memos. Sands concludes, “The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn’t want to be seen as the ones applying it—they wanted distance and deniability. They also wanted legal cover for themselves. A key question is whether Haynes and Rumsfeld had knowledge of the content of these memos before they approved the new interrogation techniques for al-Khatani. If they did, then the administration’s official narrative—that the pressure for new techniques, and the legal support for them, originated on the ground at Guantanamo, from the ‘aggressive major general’ and his staff lawyer—becomes difficult to sustain. More crucially, that knowledge is a link in the causal chain that connects the keyboards of Feith and Yoo to the interrogations of Guantanamo.”
Legal Justifications Also From Below - The legal justification for the new interrogation techniques also originated at Guantanamo, the three assert, and not by anyone in the White House and certainly not by anyone in the Justice Department. The document stack includes a legal analysis by the staff judge advocate at Guantanamo, Lieutenant Colonel Diane Beaver (see October 11, 2002), which gives legal justifications for all the interrogation techniques. The responsibility lies ultimately with Beaver, the three imply, and not with anyone higher up the chain. Again, the story is severely flawed. Beaver will give extensive interviews to Sands, and paint a very different picture (see Fall 2006). One Naval Criminal Investigative Service (NCIS) psychologist, Mike Gelles (see December 17-18, 2002), will dispute Gonzales’s contention that the techniques trickled up the chain from lower-level officials at Guantanamo such as Beaver. “That’s not accurate,” he will say. “This was not done by a bunch of people down in Gitmo—no way.” That view is supported by a visit to Guantanamo by several top-ranking administration lawyers, in which Guantanamo personnel are given the “green light” to conduct harsh interrogations of detainees (see September 25, 2002).
No Connection between Guantanamo, Abu Ghraib - Finally, the decisions regarding interrogations at Guantanamo have never had any impact on the interrogations at Abu Ghraib. Gonzales wants to “set the record straight” on that question. The administration has never authorized nor countenanced torture of any kind. The abuses at Abu Ghraib were unauthorized and had nothing to do with administration policies. Much evidence exists to counter this assertion (see December 17-18, 2002). In August 2003, the head of the Guantanamo facility, Major General Geoffrey Miller, visited Abu Ghraib in Baghdad, accompanied by, among others, Diane Beaver (see August 31, 2003-September 9, 2003). They were shocked at the near-lawlessness of the facility, and Miller recommended to Lieutenant General Ricardo Sanchez, the supreme US commander in Iraq, that many of the same techniques used at Guantanamo be used in Abu Ghraib. Sanchez soon authorized the use of those techniques (see September 14-17, 2003). The serious abuses reported at Abu Ghraib began a month later. Gelles worried, with justification, that the techniques approved for use against al-Khatani would spread to other US detention facilities. Gelles’s “migration theory” was controversial and dangerous, because if found to be accurate, it would tend to implicate those who authorized the Guantanamo interrogation techniques in the abuses at Abu Ghraib and elsewhere. “Torture memo” author John Yoo called the theory “an exercise in hyperbole and partisan smear.” But Gelles’s theory is supported, not only by the Abu Ghraib abuses, but by an August 2006 Pentagon report that will find that techniques from Guantanamo did indeed migrate into Abu Ghraib, and a report from an investigation by former defense secretary James Schlesinger (see August 24, 2004) that will find “augmented techniques for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.” [White House, 7/22/2004; Vanity Fair, 5/2008]

James Schlesinger.James Schlesinger. [Source: HBO]The four-member Independent Panel to Review Department of Defense Detention Operations completes its final report on its investigations into the prisoner abuses that are known to have taken place in US-run detention centers throughout Iraq and Afghanistan. The investigative panel, which includes James R. Schlesinger, Harold Brown, Tillie K. Fowler, and Gen. Charles A. Horner, finds that a failure of leadership, leading all the way to Defense Secretary Rumsfeld, contributed to the abuse of prisoners. Like the Fay report (see August 25, 2004), to be released the following day, and the February 2004 Taguba report (see March 9, 2004), the Schlesinger report concludes that a lack of oversight and supervision allowed incidents, such as that which occurred at Abu Ghraib, to occur. Unlike preceding investigations, the Schlesinger Panel takes issue with the notion that abuses resulted from the actions of a few bad apples and were not widespread, charging that there is “both institutional and personal responsibility at higher levels.” The panel however does not name names. Notwithstanding their criticisms of the secretary, all four members say that Rumsfeld’s mistakes were comparably less significant than those made by uniformed officers. The panel, appointed by the secretary himself, recommends against removing Rumsfeld from office. [New York Times, 8/25/2004] In sum, the panel finds:
bullet Defense Secretary Rumsfeld and his aides failed to anticipate significant militant resistance to the US invasion and did not respond quickly enough to it when its strength became apparent. [New York Times, 8/25/2004]
bullet The Department of Defense created confusion when it issued, retracted, and then re-issued its policy on interrogation methods. [New York Times, 8/25/2004]
bullet The failure to adequately staff Abu Ghraib contributed to the poor conditions and abuses that took place at the prison. The ratio of military police to prisoners at the facility was 75 to one. [New York Times, 8/25/2004]
bullet Responsibility for the abuses that took place at Abu Ghraib go beyond the handful of MPs present in the photographs. “We found a string of failures that go well beyond an isolated cellblock in Iraq,” panelist Tillie K. Fowler explains during a Pentagon press conference. “We found fundamental failures throughout all levels of command, from the soldiers on the ground to the Central Command and to the Pentagon. These failures of leadership helped to set the conditions which allowed for the abusive practice to take place.” [US Department of Defense, 8/24/2004; New York Times, 8/25/2004]
bullet Rumsfeld’s decision (see December 2, 2002) on December 2, 2002 to authorize 16 pre-approved additional interrogation procedures for use at the Guantanamo facility; his subsequent decision (see January 15, 2003) to rescind that authority, and the final April 16, 2003 decision (see April 16, 2003) providing a final list of approved techniques was “an element contributing to uncertainties in the field as to which techniques were authorized.” The methods on the list eventually “migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.” [New York Times, 8/25/2004]
bullet The panel seemingly concludes that the interrogation methods approved for use in Afghanistan and at Guantanamo are lawful, fully agreeing that the Third Geneva Convention does not apply to detainees considered enemy combatants. The panel does not question whether the military was justified in classifying the detainees, or “terrorists,” as such. “The Panel accepts the proposition that these terrorists are not combatants entitled to the protections of Geneva Convention III. Furthermore, the Panel accepts the conclusion the Geneva Convention IV and the provisions of domestic criminal law are not sufficiently robust and adequate to provide for the appropriate detention of captured terrorists.” [US Congress, 9/9/2004, pp. 83 pdf file]
bullet The panel says that Gen. Ricardo Sanchez’s decision to classify some prisoners in Iraq as enemy combatants was “understandable,” even though Combined Joint Task Force 7 “understood there was no authorization to suspend application of the Geneva Conventions… .” [US Congress, 9/9/2004, pp. 83 pdf file]
bullet Abuses at Abu Ghraib involved both MPs and military intelligence personnel. “We now know these abuses occurred at the hands of both military police and military intelligence personnel,” the report says. “The pictured abuses, unacceptable even in wartime, were not part of authorized interrogations nor were they even directed at intelligence targets. They represent deviant behavior and a failure of military leadership and discipline. However, we do know that some of the egregious abuses at Abu Ghraib which were not photographed did occur during interrogation sessions and that abuses during interrogation sessions occurred elsewhere.… We concur with the Jones/Fay investigation’s (see August 25, 2004) conclusion that military intelligence personnel share responsibility for the abuses at Abu Ghraib with the military police soldiers cited in the Taguba investigation.” [New York Times, 8/25/2004]
bullet In Guantanamo, roughly one-third of all abuses were interrogation related. [New York Times, 8/25/2004]
bullet Contradicting the conclusions of the Red Cross report (see May 7, 2004), the Schlesinger report demonstrates that abuses were widespread. “Abuses of varying severity occurred at differing locations under differing circumstances and context,” the report’s authors write. “They were widespread and, though inflicted on only a small percentage of those detained… .” [New York Times, 8/25/2004]
bullet The abusive practices were not sanctioned by the military’s interrogation policy. “No approved procedures called for or allowed the kinds of abuse that in fact occurred. There is no evidence of a policy of abuse promulgated by senior officials or military authorities.” [New York Times, 8/25/2004]
bullet The panelists believe the abuses occurring during the night shift in Cell Block 1 of Abu Ghraib “would have been avoided with proper training, leadership and oversight.” [New York Times, 8/25/2004] Critics will say the report is a “whitewash,” noting that the panel cannot be considered independent given that it was appointed by Rumsfeld himself. Months before the panel completed its work, panelist Tillie Fowler said Rumsfeld should not be blamed for the abuses. “The secretary is an honest, decent, honorable man, who’d never condone this type of activity,” she said referring to the abuse at Abu Ghraib. “This was not a tone set by the secretary.” [New York Times, 6/6/2004]

Entity Tags: James R. Schlesinger, International Committee of the Red Cross, Harold Brown, Charles A. Horner, George R. Fay, Donald Rumsfeld, Tillie K. Fowler

Timeline Tags: Torture of US Captives, Civil Liberties

The Justice Department issues a 17-page memo which officially replaces the August 2002 memo (see August 1, 2002), which asserted that the president’s wartime powers supersede international anti-torture treaties and defined torture very narrowly, describing it as a tactic that produces pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The new memo, authored by acting chief of the Office of Legal Counsel (OLC) and Acting Assistant Attorney General Daniel Levin, is ostensibly meant to deflect criticisms that the Bush administration condones torture. In fact, the very first sentence reads, “Torture is abhorrent both to American law and values and to international norms.” But the White House insists that the new memo does not represent a change in policy because the administration has always respected international laws prohibiting the mistreatment of prisoners. The primary concern of the new memo is to broaden the narrow definition of torture that had been used in the August memo. Levin adopts the definition of torture used in Congressional anti-torture laws, which says that torture is the infliction of physical suffering, “even if it does not involve severe physical pain.” But the pain must still be more than “mild and transitory,” the memo says. Like the original memo, Levin says that torture may include mental suffering. But to be considered so it would not have to last for months or years, as OLC lawyers Jay Bybee and John Yoo had asserted two years earlier. The most contested conclusions of the August 2002 memo—concerning the president’s wartime powers and potential legal defense for US personnel charged with war crimes—are not addressed in the Levin memo. “Consideration of the bounds of any such authority would be inconsistent with the president’s unequivocal directive that United States personnel not engage in torture,” the memo says. [US Department of Justice, 12/30/2004 pdf file; Associated Press, 12/31/2004]
National Security Not a Justification for Torture - The memo also attempts to quell concerns that the administration believes national security may be used as justification for tactics that could be considered as torture. It states, “[A] defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute.” [US Department of Justice, 12/30/2004 pdf file]
Memo Divided White House Officials - Many in the White House opposed the issuance of the memo, but were rebuffed when other administration officials said the memo was necessary to ease the confirmation of Alberto Gonzales as Attorney General. [New York Times, 10/4/2007]
Torture Opponents Disappointed - Civil libertarians and opponents of torture within the Justice Department are sharply disappointed in the memo. While it gives a marginally less restrictive definition of the pain required to qualify as torture, and gives no legal defenses to anyone who might be charged with war crimes, it takes no position on the president’s authority to override interrogation laws and treaties, and finds that all the practices previously employed by the CIA and military interrogators were and are legal. Yoo will later write that “the differences in the opinions were for appearances’ sake. In the real world of interrogation policy, nothing had changed. The new opinion just reread the statute to deliberately blur the interpretation of torture as a short-term political maneuver in response to public criticism.” [Savage, 2007, pp. 196-197]
Secret Memo Will Allow Waterboarding; Dissidents Purged - A secret memo is completed a short time later that allows such torture techniques as waterboarding to be used again (see February 2005). The Levin memo triggers a department-wide “purge” of dissidents and torture opponents; some will resign voluntarily, while others will resign after being denied expected promotions. [Savage, 2007, pp. 197]

Entity Tags: Office of Legal Counsel (DOJ), Bush administration (43), Daniel Levin, Alberto R. Gonzales, Jay S. Bybee, John C. Yoo

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

Arlen Specter.Arlen Specter. [Source: US Senate]White House counsel Alberto Gonzales testifies before the US Senate as part of his confirmation as the Bush administration’s new attorney general. Much of the seven hours of testimony focuses on Gonzales’s position on torturing terrorist suspects. He is specifically questioned on the August 2002 Justice Department memo requested by Gonzales that outlined how US officials could interrogate subjects without violating domestic and international laws against torture by setting unusually high standards for the definition of torture (see August 1, 2002). [Democracy Now!, 1/7/2005] Arlen Specter (R-PA) asks Gonzales if he approves of torture. Gonzales replies, “Absolutely not,” but refuses to be pinned down on specifics of exactly what constitutes torture.
Equivocating on the Definition of Torture - Gonzales says he “was sickened and outraged” by the photographs of tortured Iraqis at Abu Ghraib prison (see Evening November 7, 2003), but refuses to say whether he believes any of that conduct is criminal, citing ongoing prosecutions. Joseph Biden (D-DE) retorts: “That’s malarkey. You are obliged to comment. That’s your judgment we’re looking at.… We’re looking for candor.” [CNN, 1/7/2005] When asked whether he agrees with the August 2002 memo that said, “[F]or an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death,” Gonzales says: “We were trying to interpret the standard set by Congress. There was discussion between the White House and Department of Justice as well as other agencies about what does this statute mean? It was a very, very difficult—I don’t recall today whether or not I was in agreement with all of the analysis, but I don’t have a disagreement with the conclusions then reached by the department.” He says that the standard “does not represent the position of the executive branch” today. Author and torture expert Mark Danner calls the standard “appalling… even worse the second time through.” Gonzales was obviously prepped for this line of questioning, Danner says: “He sat in front of the committee and asserted things, frankly, that we know not to be true.… He was essentially unwilling to say definitively there were no situations in which Americans could legally torture prisoners.… [T]here’s an assumption behind [this performance] that we have the votes. We’re going to get through. I just have to give them nothing on which to hang some sort of a contrary argument.”
Equivicating on Techniques - Edward Kennedy (D-MA) questions Gonzales about what techniques are defined as torture, including “live burial” (see February 4-5, 2004) and waterboarding. Kennedy says that, according to media reports, Gonzales never objected to these or other techniques. Gonzales does not have a “specific recollection” of the discussions or whether the CIA ever asked him to help define what is and is not torture. He also says that in “this new kind of” war against “this new kind of enemy, we realized there was a premium on receiving information” the US needs to defeat terrorists. Agencies such as the CIA requested guidance as to “[w]hat is lawful conduct” because they did not “want to do anything that violates the law.” Kennedy asks if Gonzales ever suggested that the Justice Department’s Office of Legal Counsel (OLC) ever “lean forward on this issue about supporting the extreme uses of torture?” Gonzales focuses on Kennedy’s phrasing: “Sir, I don’t recall ever using the term sort of ‘leaning forward,’ in terms of stretching what the law is.” He refuses to admit giving any opinions or requesting any documents, but only wanted “to understand [the OLC’s] views about the interpretation” of torture. Danner notes that Justice Department officials have told reporters that Gonzales pushed for the expansive definition of torture in the memos, but Gonzales refuses to admit to any of that in the questioning.
Ignoring the Uniform Code of Military Justice - Lindsey Graham (R-SC) tells Gonzales that the Justice Department memo was “entirely wrong in its focus” because it excluded the Uniform Code Of Military Justice, and that it “put our troops at jeopardy.” Gonzales replies that he does not think that because of the memo the US has lost “the moral high ground” in the world. Danner says, “[Graham] is arguing that these steps weakened the United States, not only by putting troops at risk, but by undermining the US’s reputation in the world, undermining the ideological side of this war… Graham is saying very directly that by torturing, and by supplying images like that one, of… a hooded man, the man with the hood over his head and the wires coming out of his fingers and his genitals which is known far and wide in the Arab world in the Middle East it’s become highly recognizable by supplying that sort of ammunition, you’re giving very, very strong comfort and aid to the enemy in fact.” [Democracy Now!, 1/7/2005]

Entity Tags: Clarence Thomas, Arlen Specter, Alberto R. Gonzales, Central Intelligence Agency, Uniform Code of Military Justice, US Department of Justice, Mark Danner, Patrick J. Leahy, Joseph Biden, Bush administration (43), Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives, Civil Liberties

The Senate Judiciary Committee brings in several experts to expand upon the testimony of attorney general nominee Alberto Gonzales (see January 6, 2005 and January 6, 2005). One of the most outspoken critics is Yale Law School dean Harold Koh. Koh had worked in the Justice Department’s Office of Legal Counsel (OLC) under Ronald Reagan, and later served as assistant secretary of state for democracy, human rights, and labor in the Clinton administration. He is a vocal critic of the Bush administration’s detention policies at Guantanamo and elsewhere. Koh had once worked closely with OLC lawyer John Yoo, the author of numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002), but now, without explicitly mentioning Yoo by name, he repudiates his former student’s legal positions. Gonzales worked closely with Yoo to craft the administration’s positions on wiretapping, torture, the inherent power of the president, and other issues. “Having worked in both Democratic and Republican administrations, and for more than two years as an attorney in the Office of Legal Counsel, I am familiar with how legal opinions like this are sought and drafted,” Koh states. “I further sympathize with the tremendous pressures of time and crisis that government lawyers face while drafting such opinions. Nevertheless, in my professional opinion, the August 1, 2002 OLC memorandum [drafted by Yoo at Gonzales’s behest—see August 1, 2002] is perhaps the most clearly erroneous legal opinion I have ever read.” The August 1 memo, as well as other opinions by Yoo and Gonzales, “grossly overreads the inherent power of the president” as commander in chief, Koh testifies. The memos raise profound questions about the legal ethics of everyone involved—Gonzales, Yoo, and others in the Justice Department and White House. “If a client asks a lawyer how to break the law and escape liability, the lawyer’s ethical duty is to say no,” Koh testifies. “A lawyer has no obligation to aid, support, or justify the commission of an illegal act.” [Senate Judiciary Committee, 1/7/2005 pdf file; Savage, 2007, pp. 211-212]

Entity Tags: Senate Judiciary Committee, US Department of Justice, Harold Koh, Alberto R. Gonzales, Bush administration (43), John C. Yoo, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

The American Civil Liberty Union (ACLU) calls for the creation of a Special Counsel “to investigate and prosecute any criminal acts by civilians in the torture or abuse of detainees by the US Government” and appeals to senators to insist that Alberto Gonzales commit to appointing one, before voting on his nomination as attorney general. “[I]t is likely,” the ACLU concludes, that between the production of the August 1, 2002 OLC memo (see August 1, 2002) and its official replacement by another legal opinion on December 30, 2004 (see December 30, 2004), “criminal acts occurred under the looser interpretations in effect for more than two years.” According to the ACLU, “The appointment of an outside special counsel—with full investigatory and prosecutorial powers—is the only way to ensure that all civilians who violated federal laws against torture will be held responsible.” [American Civil Liberties Union, 1/30/2005]

Entity Tags: Alberto R. Gonzales, American Civil Liberties Union

Timeline Tags: Torture of US Captives, Civil Liberties

Jay Rockefeller.Jay Rockefeller. [Source: US Senate]Ranking member of the Senate Intelligence Committee Jay Rockefeller (D-WV) requests “over a hundred documents” from the CIA’s Inspector General. The documents are referenced in or pertain to a report the Inspector General drafted in May 2004 about the CIA’s detention and interrogation activities. Rockefeller also requests a report drafted by the CIA’s Office of General Counsel (see 2003) on the examination of videotapes of detainee interrogations stating whether the techniques they show comply with an August 2002 Justice Department opinion on interrogation (see August 1, 2002). However, the CIA refuses to provide these documents, as well as others, even after a second request is sent to CIA Director Porter Goss in September 2005. [US Congress, 12/7/2007] The videotapes Rockefeller is asking about will be destroyed by the CIA just two months after his second request (see November 2005).

Entity Tags: Senate Intelligence Committee, John D. Rockefeller, Office of the Inspector General (CIA), Central Intelligence Agency, Porter J. Goss

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

Donald Shepperd, on the June 24 CNN broadcast.Donald Shepperd, on the June 24 CNN broadcast. [Source: CNN]Within hours of returning from a Pentagon-sponsored “fact-finding” trip to the Guantanamo detention facility (see June 24-25, 2005), CNN military analyst Don Shepperd, as planned (see June 25, 2005), extolls the virtues of the Pentagon’s handling of detainees on a lineup of CNN news broadcasts. As per his most recent briefing, he does not mention the case of Mohammed al-Khatani (see August 8, 2002-January 15, 2003), who has suffered extensive brutality at the hands of his captors. Instead, his “analyses” are so uniformly laudatory that, as commentator Glenn Greenwald will observe, they are “exactly what it would have been had [Defense Secretary Donald] Rumsfeld himself written the script.” After returning from his half-day visit, he participates in a live telephone interview with CNN anchor Betty Nguyen. He opens with the observation: “I tell you, every American should have a chance to see what our group saw today. The impressions that you’re getting from the media and from the various pronouncements being made by people who have not been here, in my opinion, are totally false. What we’re seeing is a modern prison system of dedicated people, interrogators and analysts that know what they are doing. And people being very, very well-treated. We’ve had a chance to tour the facility, to talk to the guards, to talk to the interrogators and analysts. We’ve had a chance to eat what the prisoners eat. We’ve seen people being interrogated. And it’s nothing like the impression that we’re getting from the media. People need to see this, Betty.… I have been in prisons and I have been in jails in the United States, and this is by far the most professionally-run and dedicated force I’ve ever seen in any correctional institution anywhere.” Shepperd watched an interrogation, and he describes it thusly: “[T]hey’re basically asking questions. They just ask the same questions over a long period of time. They get information about the person’s family, where they’re from, other people they knew. All the type of things that you would want in any kind of criminal investigation. And these were all very cordial, very professional. There was laughing in two of them that we…” Nguyen interrupts to ask, “Laughing in an interrogation?” and Shepperd replies: “In the two of them that we watched. Yes, indeed. It’s not—it’s not like the impression that you and I have of what goes on in an interrogation, where you bend people’s arms and mistreat people. They’re trying to establish a firm professional relationship where they have respect for each other and can talk to each other. And yes, there were laughing and humor going on in a couple of these things. And I’m talking about a remark made where someone will smirk or laugh or chuckle.” In another CNN interview three days later, Shepperd reiterates and expands upon his initial remarks, and says of the detainees: “[W]e have really gotten a lot of information to prevent attacks in this country and in other countries with the information they’re getting from these people. And it’s still valuable.” CNN does not tell its viewers that Shepperd is president of The Shepperd Group, a defense lobbying and consulting firm. [CNN, 6/24/2005; Salon, 5/9/2008]

Entity Tags: The Shepperd Group, CNN, Donald Shepperd, US Department of Defense

Timeline Tags: US Military, Torture of US Captives, Iraq under US Occupation, Domestic Propaganda

Retired Air Force General Donald Shepperd, a CNN news analyst, returns from a “fact-finding” trip to Guantanamo Bay (see June 24-25, 2005) prepared to provide Pentagon talking points to CNN audiences. Shepperd is remarkably candid about his willingness to serve as a Pentagon propagandist, writing in a “trip report” he files with his handlers, “Did we drink the ‘Government Kool-Aid?’—of course, and that was the purpose of the trip.” He acknowledges that “a one day visit does not an expert make” (Shepperd and his fellow analysts spent less than four hours touring the entire facility, all in the company of Pentagon officials), and notes that “the government was obviously going to put its best foot forward to get out its message.” He adds that “former military visitors are more likely to agree with government views than a more appropriately skeptical press.” Shepperd also sends an e-mail to Pentagon officials praising the trip and asking them to “let me know if I can help you.” He signs the e-mail, “Don Shepperd (CNN military analyst).” Shepperd’s e-mail is forwarded to Larry Di Rita, a top public relations aide to Secretary of Defense Donald Rumsfeld. Di Rita’s reply shows just how much control the Pentagon wields over the analysts. Di Rita replies, “OK, but let’s get him briefed on al-Khatani so he doesn’t go too far on that one.” Di Rita is referring to detainee Mohammed al-Khatani (see August 8, 2002-January 15, 2003), who had been subjected to particularly brutal treatment. Shepperd will, as planned, praise the Guantanamo detainee program on CNN in the days and hours following his visit to the facility (see June 24-25, 2005). [Salon, 5/9/2008] He will say in May 2008: “Our message to them as analysts was, ‘Look, you got to get the importance of this war out to the American people.’ The important message is, this is a forward strategy, it is better to fight the war in Iraq than it is a war on American soil.” [PBS, 5/1/2008]

Entity Tags: US Department of Defense, CNN, Donald Shepperd

Timeline Tags: US Military, Torture of US Captives, Iraq under US Occupation, Domestic Propaganda

Gordon Cucullu.Gordon Cucullu. [Source: The Intelligence Summit]“Independent military analyst” Gordon Cucullu, a former Green Beret, is an enthusiastic participant in the Pentagon’s Iraq propaganda operation (see April 20, 2008 and Early 2002 and Beyond). Cucullu has just returned from a half-day tour of the Guantanamo detention facility (see June 24-25, 2005), and is prepared to give the Pentagon’s approved message to the media.
Talking Points Covered in Fox Appearance - In an e-mail to Pentagon official Dallas Lawrence, he alerts the department to a new article he has written for conservative Website FrontPage, and notes that he has appeared on an early-morning broadcast on Fox News and delivered the appropriate talking points: “I did a Fox & Friends hit at 0620 this morning. Good emphasis on 1) no torture, 2) detainees abuse guards, and 3) continuing source of vital intel.” [Salon, 5/9/2008]
Op-Ed: Pampered Detainees Regularly Abuse Guards - In the op-ed for FrontPage, entitled “What I Saw at Gitmo,” he writes that the US is being “extraordinarily lenient—far too lenient” on the detainees there. There is certainly abuse going on at Guantanamo, Cucullu writes—abuse of soldiers by the detainees. Based on his three-hour tour of the facility, which included viewing one “interrogation” and touring an unoccupied cellblock, Cucullu says that the detainees “fight their captors at every opportunity” and spew death threats against the soldiers, their families, and Americans in general. The soldiers are regularly splattered with “feces, urine, semen, and spit.” One detainee reportedly told another, “One day I will enjoy sucking American blood, although their blood is bitter, undrinkable.” US soldiers, whom Cucullu says uniformly treat the detainees with courtesy and restraint (see August 8, 2002-January 15, 2003), are constantly attacked by detainees who wield crudely made knives, or try to “gouge eyes and tear mouths [or] grab and break limbs as the guards pass them food.” In return, the detainees are given huge meals of “well-prepared food,” meals which typically overflow from two styrofoam containers. Many detainees insist on “special meal orders,” and throw fits if their meals are not made to order. The level of health care they are granted, Cucullu says, would suit even the most hypochondriac American. Cucullu writes that the detainees are lavished with ice cream treats, granted extended recreational periods, live in “plush environs,” and provided with a full array of religious paraphernalia. “They are not abused, hanged, tortured, beheaded, raped, mutilated, or in any way treated the way that they once treated their own captives—or now treat their guards.” The commander, Brigadier General Jay Hood, tells Cucullu that such pampered treatment provides better results than harsher measures. “Establishing rapport” is more effective than coercion, Hood says, and, in Cucullu’s words, Hood “refers skeptics to the massive amount of usable intelligence information [the detainees] produce even three years into the program.” In conclusion, Cucullu writes, the reader is “right to worry about inhumane treatment” at Guantanamo, but on behalf of the soldiers, not the detainees. [FrontPage Magazine, 6/27/2005]

Entity Tags: US Department of Defense, Dallas Lawrence, Fox News, FrontPage Magazine, Gordon Cucullu, Jay W. Hood

Timeline Tags: US Military, Torture of US Captives, Iraq under US Occupation, Domestic Propaganda

The Bush administration relents in its opposition to the Detainee Treatment Act (DTA), which would ban torture of prisoners by US personnel (see July 24, 2005 and After and December 30, 2005). President Bush meets with the bill’s primary sponsor, Senator John McCain (R-AZ), and John Warner (R-VA), chairman of the Senate Armed Service Committee, in a press conference to praise the bill. McCain says after the conference that the bill “is a done deal.” The bill still faces some opposition from Congressional Republicans such as House Armed Services Committee chairman Duncan Hunter (R-CA), who says he won’t vote for the bill unless it can be amended to ensure that the nation’s ability to gather intelligence is not diminished. Both the House and Senate have voted by veto-proof margins to accept the bill, which is actually an amendment to a defense appropriations bill. McCain says after the conference with Bush and Warner, “We’ve sent a message to the world that the United States is not like the terrorists. We have no grief for them, but what we are is a nation that upholds values and standards of behavior and treatment of all people, no matter how evil or bad they are.” Bush says the ban “is to make it clear to the world that this government does not torture and that we adhere to the international convention of torture, whether it be here at home or abroad.” McCain has been the target of months of vilification and opposition from the White House over the bill, which argued that the bill would limit Bush’s authority to protect the US from terrorist attacks, and that the bill is unnecessary because US officials do not torture. [CNN, 12/15/2005]
Loopholes - But the bill contains key loopholes that some experts believe significantly waters down the bill’s impact. Author Alfred McCoy, an expert on the CIA, notes that the bill as revised by White House officials does not give any real specifics. Attorney General Alberto Gonzales will assert that the only restrictions on prisoner interrogations are the ban on “severe” psychological or physical pain, “the same linguistic legerdemain that had allowed the administration to start torturing back in 2002” (see August 1, 2002). Gonzales also implies that practices such as waterboarding are not prohibited. [TomDispatch (.com), 2/8/2006]
Legal Cover - A provision of the bill inserted after negotiation with White House officials says that CIA and military officials accused of torture can claim legal protection by arguing that they were simply following the orders of their superiors, or they have a reasonable belief that they are carrying out their superiors’ wishes. McCain dropped the original provision that all military personnel must follow the stringent guidelines for interrogation laid out in the Army Field Manual; the bill now follows the Uniform Code of Military Justice, which says that anyone accused of violating interrogation rules can defend themselves if a “reasonable” person could conclude they were following a lawful order. McCain resisted pressure from the White House to include language that would afford interrogators accused of torture protection from civil or criminal lawsuits. [CNN, 12/15/2005; Associated Press, 12/15/2005]
Controversial Amendment - Perhaps even more troubling is an amendment to the bill that would essentially strip the judiciary’s ability to enforce the ban. The amendment, originally crafted by senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ) and added to by Carl Levin (D-MI), denies Guantanamo detainees the right to bring legal action against US personnel who torture or abuse them—effectively denying them the fundamental legal right of habeas corpus. It also gives the Defense Department the implicit ability to consider evidence obtained through torture or inhumane treatment in assessing detainees’ status. Human Rights Watch (HRW) says that the DTA marks the first time in history that Congress would allow the use of evidence obtained through torture. HRW’s Tom Malinowski says, “With the McCain amendment, Congress has clearly said that anyone who authorizes or engages in cruel techniques like water boarding is violating the law. But the Graham-Levin amendment leaves Guantanamo detainees no legal recourse if they are, in fact, tortured or mistreated. The treatment of Guantanamo Bay detainees will be shrouded in secrecy, placing detainees at risk for future abuse.… If the McCain law demonstrates to the world that the United States really opposes torture, the Graham-Levin amendment risks telling the world the opposite.” [Human Rights Watch, 12/16/2005] Geoffrey Corn, a retired Army lieutenant colonel and Judge Advocate General lawyer, agrees. In January 2006, he will write that the “recent compromise inclusion of an ‘obedience to orders’ defense… has effectively undermined the goal Senator John McCain fought so long to achieve. Instead of sending a clear message to US forces that cruel, inhumane, or degrading treatment of detainees is never permissible, the compromise has validated President Bush’s belief that the necessities of war provide the ultimate ‘trump card’ to justify ‘whatever it takes’ in the war on terror.” [Jurist, 1/6/2006]

Entity Tags: Tom Malinowski, Lindsey Graham, US Department of Defense, Jon Kyl, Uniform Code of Military Justice, John McCain, John W. Warner, Geoffrey Corn, Alberto R. Gonzales, Bush administration (43), Alfred McCoy, Carl Levin, Detainee Treatment Act, Central Intelligence Agency, Human Rights Watch, Duncan Hunter

Timeline Tags: Torture of US Captives, Civil Liberties

Douglas Feith.Douglas Feith. [Source: Whodidit.org]Law professor Phillippe Sands interviews Douglas Feith, the former undersecretary of defense for policy and one of the key architects of the Iraq invasion. [Vanity Fair, 5/2008] Feith is joining the School of Foreign Service at Georgetown University as a lecturer. [Washington Post, 5/25/2006] Feith discusses his great pride in his part in the administration’s decision to ignore the Geneva Conventions’ restrictions on interrogating prisoners (see February 7, 2002). Feith says that Geneva merely got in the way of the US doing what it needed to do with regards to the detainees. Since al-Qaeda and Taliban operatives did not function under Geneva, he argues, the US did not need to, either. Feith says that between his arguments and the contempt the civilians in the White House and the Pentagon held for the military officers who stood by the Geneva restrictions, the decision was made to set Geneva aside when circumstances warranted. It was never a matter of questioning Geneva’s status as international law, but deciding to whom and in what circumstances the conventions apply.
Catch 22 - Sands writes that according to Feith’s (and eventually the administration’s) rationale: “Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to POW status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3—but detainees could not rely on this either, on the theory that its provisions applied only to ‘armed conflict not of an international character,’ which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone.… I asked Feith, just to be clear: Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantanamo? ‘Oh yes, sure,’ he shot back. Was that the intended result?, I asked. ‘Absolutely.… That’s the point.‘… As he saw it, either you were a detainee to whom Geneva didn’t apply or you were a detainee to whom Geneva applied but whose rights you couldn’t invoke.”
Impact on Interrogations - When asked about the difference for the purpose of interrogation, Sands will write: “Feith answered with a certain satisfaction, ‘It turns out, none. But that’s the point.’ That indeed was the point. The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible.” Reflecting on that time, Feith says with obvious relish, “This year I was really a player.” Sands asks Feith if he ever worried that the Geneva decision might have eroded the US’s moral authority. Feith’s response is blunt: “The problem with moral authority [is] people who should know better, like yourself, siding with the _ssholes, to put it crudely.” [Vanity Fair, 5/2008]

Entity Tags: Phillippe Sands, Geneva Conventions, Douglas Feith, Al-Qaeda, Georgetown University, Taliban

Timeline Tags: Torture of US Captives, Civil Liberties

John Yoo’s ‘The Powers of War and Peace.’John Yoo’s ‘The Powers of War and Peace.’ [Source: University of Maryland]Libertarian law professor Cass Sunstein reviews a recent book by former Bush legal adviser John Yoo, who authored several of the Bush administration’s most controversial legal opinions concerning terrorism and executive power (see September 21, 2001, September 25, 2001, September 25, 2001, October 4, 2001, October 23, 2001, October 23, 2001, November 2, 2001, November 6-10, 2001, November 15, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24, 2002, January 24-26, 2002, March 13, 2002, April 8, 2002, June 27, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and October 11, 2002). Yoo’s book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, is a compendium of his pre-9/11 academic writings that landed him his job at the Justice Department’s Office of Legal Counsel. Sunstein notes that Yoo, perhaps more than any other single legal scholar, has reshaped the government’s legal stance on any number of issues. He argued for the president’s unilateral ability to declare war without the approval of Congress, the use of “enhanced interrogation techniques” on suspected terrorists, the withdrawal of essential civil liberties and legal rights from suspected terrorists and enemy collaborators, the right of the administration to electronically eavesdrop on the American citizenry without judicial consent or oversight, the ability to ignore or withdraw from international treaties without congressional approval, and more besides. Sunstein writes: “[T]aken as a whole, the claims of the Bush administration may be properly regarded as an effort to create a distinctive set of constitutional understandings for the post-September 11 era. The White House is attempting to create a kind of 9/11 Constitution. A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions.” Yoo is a key figure in that effort. Sunstein calls his work interesting but completely one-sided, simply ignoring “the mountainous counter-evidence” against most of his constitutional claims. “Yoo’s reading would require us to ignore far too many statements by prominent figures in the founding generation,” Sunstein writes. “There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree. Were all of them wrong?” Sunstein concludes: “[W]ith respect to war, there is no reason for a 9/11 Constitution. The old one, read in the light of our traditions, will do just fine.” [New Republic, 1/9/2006; Savage, 2007, pp. 81-82]

Entity Tags: Bush administration (43), Office of Legal Counsel (DOJ), John C. Yoo, Cass Sunstein

Timeline Tags: Civil Liberties

Actor Kiefer Sutherland as ‘Jack Bauer.’Actor Kiefer Sutherland as ‘Jack Bauer.’ [Source: Stuff.co.nz]Law professor Phillippe Sands begins a series of interviews with the former staff judge advocate for the US Army in Guantanamo, Lieutenant Colonel Diane Beaver. She is the author of a legal analysis that was used by the Bush administration to justify its extreme interrogation techniques (see October 11, 2002). Sands describes her as “coiled up—mistreated, hung out to dry.” She is unhappy with the way the administration used her analysis, and notes that she was guided in her work at Guantanamo by personnel from the CIA and Defense Intelligence Agency. She believes that some of the interrogation techniques were “reverse-engineered” from a training program called SERE—Survival, Evasion, Resistance, and Escape—though administration officials have denied this. Several Guantanamo personnel were sent to Fort Bragg, SERE’s home, for a briefing on the program (see December 2001, January 2002 and After, Mid-April 2002, Between Mid-April and Mid-May 2002, July 2002, July 2002, July 2002, and August 1, 2002). Military training was not the only source of inspiration. Fox’s television drama 24 came to a conclusion in the spring of 2002, Beaver recalls. One of the overriding messages of that show is that torture works. “We saw it on cable,” Beaver remembers. “People had already seen the first series. It was hugely popular.” The story’s hero, Jack Bauer, had many friends at Guantanamo, Beaver adds. “He gave people lots of ideas.” She recalls in graphic terms how excited many of the male personnel became when extreme interrogation methods were discussed. “You could almost see their d_cks getting hard as they got new ideas,” she will say. “And I said to myself, You know what? I don’t have a d_ck to get hard—I can stay detached.” The FBI and the Naval Criminal Investigative Service refused to become involved in aggressive interrogations, she says (see Late March through Early June, 2002 and December 17, 2002). [Vanity Fair, 5/2008]

Entity Tags: Naval Criminal Investigative Service, Diane E. Beaver, Federal Bureau of Investigation, Fox Broadcasting Company, Phillippe Sands, Georgetown University

Timeline Tags: Torture of US Captives

Bush acknowledging the secret CIA prison network.Bush acknowledging the secret CIA prison network. [Source: Gerald Herbert / Associated Press]In a speech, President Bush acknowledges a network of secret CIA prisons and announces plans to try 14 top al-Qaeda terrorist suspects in military tribunals. [Knight Ridder, 9/6/2006]
Admits Existence of Detainees in CIA Custody - Bush tells his listeners: “In addition to the terrorists held at Guantanamo, a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency.… Many specifics of this program, including where these detainees have been held and the details of their confinement, cannot be divulged.… We knew that Abu Zubaida (see March 28, 2002) had more information that could save innocent lives, but he stopped talking.… As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures… The procedures were tough, and they were safe, and lawful, and necessary.… These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful. I cannot describe the specific methods used—I think you understand why.” Bush then adds that Zubaida “began to provide information on key al-Qaeda operatives, including information that helped us find and capture more of those responsible for the attacks on September 11” (see June 2002). Another high-value detainee, 9/11 planner Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003), provided “many details of other plots to kill innocent Americans” (see March 7 - Mid-April, 2003 and August 6, 2007). [Vanity Fair, 12/16/2008; New York Review of Books, 3/15/2009] The 14 prisoners will be put on trial as soon as Congress enacts the Military Commissions Act (MCA—see October 17, 2006), which he is sending to Congress for its approval today. [Savage, 2007, pp. 308-309]
Political Reasons to Acknowledge CIA Prisons - The US government has never officially acknowledged the existence of the CIA prisons before, despite numerous media accounts about them. Bush’s speech comes less than two months before midterm Congressional elections and also comes as the White House is preparing new legislation to legalize the CIA’s detention program and shield US officials from prosecution for possible war crimes. Knight Ridder comments that the speech “appeared to be intended to give him more leverage in his negotiations with Congress over how to try suspected terrorists.… In addition to the potential political benefits, Bush had other reasons to make the program public. A Supreme Court ruling in June struck down the administration’s plan to bring terrorist suspects before military tribunals and called into question the legality of secret CIA detentions.” [Knight Ridder, 9/6/2006]
Sites Closed Down? - Other administration officials say the CIA prison network has been closed down, at least for the time being. (In fact, it will be reopened a short time later (see Autumn 2006-Late April 2007).) Reportedly, “fewer than 100” suspects had ever been in CIA custody. It is not known who they were or what happened to all of them, but most of them reportedly were returned to their home countries for prosecution. Fourteen “high-value” suspects, including accused 9/11 mastermind Khalid Shaikh Mohammed, were transferred from the secret CIA prisons to the prison in Guantanamo, Cuba in the days just prior to Bush’s speech (see September 2-3, 2006).
Torture is 'against [US] Values' - Bush says: “I want to be absolutely clear with our people and the world: The United States does not torture. It’s against our laws, and it’s against our values. I have not authorized it—and I will not authorize it.” However, he says the Geneva Conventions’ prohibition against “humiliating and degrading treatment” could potentially cause legal problems for CIA interrogators. Other administration officials say harsh interrogation techniques such as waterboarding were used in the CIA prisons. Such techniques are considered by many to be forms of torture. Bush claims that information gleaned from interrogations in the secret prisons helped thwart attacks on the US and provided valuable information about al-Qaeda operations around the world. [Knight Ridder, 9/6/2006; Washington Post, 9/7/2006]

Entity Tags: Geneva Conventions, Central Intelligence Agency, George W. Bush, Military Commissions Act, Abu Zubaida, Khalid Shaikh Mohammed

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

In two separate sessions, from October 6-11 and again from December 4-14, officials of the International Committee of the Red Cross (ICRC) interview 14 detainees newly transferred from a variety of CIA secret “black sites” to Guantanamo. The transfers followed President Bush’s acknowledgment that the CIA has maintained a number of these sites and his announced intention to have a number of the detainees sent to the Cuban facility (see September 17, 2001 and September 6, 2006).
ICRC Access - The ICRC is legally bound to monitor compliance with the Geneva Conventions and to supervise the treatment of prisoners of war; previously, it had not been allowed to see the detainees, and in some cases were never informed of their detention. The ICRC officials interview each prisoner in private, with the intention of producing “a description of the treatment and material conditions of detention of the 14 during the period they were held in the CIA detention program.”
Interviews - The 14 have been held for periods ranging “from 16 months to almost four and a half years.” The ICRC’s report, never intended for public consumption, will be released to the CIA several months later (see February 14, 2007) and revealed in a book in early 2009 (see March 15, 2009). Some of the detainees, concerned about the possible repercussions that may ensue from their discussions, ask the ICRC to withhold their names from some allegations, though most of the report attributes specific narratives and allegations to particular prisoners. Almost every allegation is independently corroborated by other, named detainees.
'Striking Similarity' - In 2009, author Mark Danner will write, quoting the ICRC report: “[I]ndeed, since the detainees were kept ‘in continuous solitary confinement and incommunicado detention’ throughout their time in ‘the black sites,’ and were kept strictly separated as well when they reached Guantanamo, the striking similarity in their stories, even down to small details, would seem to make fabrication extremely unlikely, if not impossible. ‘The ICRC wishes to underscore,’ as the writers tell us in the introduction, ‘that the consistency of the detailed allegations provided separately by each of the 14 adds particular weight to the information provided below.’”
Topics of Report - The report covers the following areas:
bullet Main elements of the CIA detention program;
bullet Arrest and transfer;
bullet Continuous solitary confinement and incommunicado detention;
bullet Other methods of ill-treatment;
bullet Suffocation by water (the ICRC term for waterboarding);
bullet Prolonged stress standing;
bullet Beatings by use of a collar;
bullet Beating and kicking;
bullet Confinement in a box;
bullet Prolonged nudity;
bullet Sleep deprivation and use of loud music;
bullet Exposure to cold temperature/cold water;
bullet Prolonged use of handcuffs and shackles;
bullet Threats;
bullet Forced shaving;
bullet Deprivation/restricted provision of solid food;
bullet Further elements of the detention regime.
Conclusion - The report concludes: “The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman, or degrading treatment.” Danner will write, “Such unflinching clarity, from the body legally charged with overseeing compliance with the Geneva Conventions—in which the terms ‘torture’ and ‘cruel, inhuman, and degrading treatment’ are accorded a strictly defined legal meaning—couldn’t be more significant.” [New York Review of Books, 3/15/2009]

Entity Tags: International Committee of the Red Cross, Geneva Conventions, Central Intelligence Agency, Mark Danner

Timeline Tags: Torture of US Captives

John Yoo, a former Justice Department official, celebrates the passage of the Military Commissions Act (see October 17, 2006). Yoo writes that Congress has ordered “the courts, in effect, to get out of the war on terror.” The bill is not so much a victory for the presidency, Yoo writes, as it is a loss for the judiciary, a “stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world.” It supersedes the Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), which Yoo calls “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy… [a] stunning power grab.” Now, he writes: “Congress and the president did not take the court’s power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court’s habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.” Yoo had previously authored numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002). [Wall Street Journal, 10/19/2006]

Entity Tags: Military Commissions Act, John C. Yoo

Timeline Tags: Civil Liberties

The CIA continues to fight an American Civil Liberties Union (ACLU) lawsuit demanding that it turn over three key memos authorizing the detention and interrogation of suspected terrorists at secret overseas “black sites” (see November 10, 2006). Court documents filed by the agency cite national security concerns for keeping the documents hidden from public scrutiny. ACLU attorney Amrit Singh says: “The CIA’s declaration uses national security as a pretext for withholding evidence that high-level government officials in all likelihood authorized abusive techniques that amount to torture. This declaration is especially disturbing because it suggests that unlawful interrogation techniques cleared by the Justice Department for use by the CIA still remain in effect. The American public has a right to know how the government is treating its prisoners.” One document is a lengthy presidential order described by the CIA as a “14-page memorandum dated 17 September 2001 from President Bush to the director of the CIA pertaining to the CIA’s authorization to detain terrorists” (see September 17, 2001). Twelve of the 14 pages are “a notification memorandum” from the president to the National Security Council regarding a “clandestine intelligence activity.” ACLU officials say this statement “raises questions regarding the extent to which Condoleezza Rice was involved in establishing the CIA detention program as national security adviser.” The CIA declares in the brief that the presidential document is so “Top Secret” that NSC officials created a “special access program” governing access to it. The brief states that “the name of the special access program is itself classified SECRET,” meaning that the CIA believes that the disclosure of the program’s name “could be expected to result in serious danger to the nation’s security.” The other two documents are, respectively, an August 1, 2002 Justice Department memo “advising the CIA regarding interrogation methods it may use against al-Qaeda members” (see August 1, 2002), and an apparent “draft” version of the August 1 memo prepared for White House counsel Alberto Gonzales by Assistant Attorney General Jay Bybee, the then-head of the Justice Department’s Office of Legal Counsel. The draft memo apparently contends that physical abuse only equates to torture under US law if it inflicts pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The memo was later rescinded (see December 2003-June 2004). The ACLU’s Jameel Jaffer says: “Through these memos, the president and Office of Legal Counsel created a legal framework that was specifically intended to allow the CIA to violate both US and international law. While national security sometimes requires secrecy, it is increasingly clear that these documents are being kept secret not for national security reasons but for political ones.” [American Civil Liberties Union, 1/10/2007]

Entity Tags: Central Intelligence Agency, Alberto R. Gonzales, American Civil Liberties Union, Amrit Singh, National Security Council, Office of Legal Counsel (DOJ), Condoleezza Rice, Jay S. Bybee, Jameel Jaffer, US Department of Justice

Timeline Tags: Torture of US Captives

John Brennan.John Brennan. [Source: PBS]An article in the New Yorker magazine reveals that the CIA interrogations of 9/11 mastermind Khalid Shaikh Mohammed (KSM) were not as reliable as they are typically made out to be. Mohammed was interrogated with methods such as waterboarding that are regarded as torture by many. CIA official John Brennan, former chief of staff for CIA Director George Tenet, acknowledges, “All these methods produced useful information, but there was also a lot that was bogus.” One former top CIA official estimates that “ninety per cent of the information was unreliable.” Cables of Mohammed’s interrogation transcripts sent to higher-ups reportedly were prefaced with the warning that “the detainee has been known to withhold information or deliberately mislead.” [New Yorker, 8/6/2007] For instance, one CIA report of his interrogations was called, “Khalid Shaikh Mohammed’s Threat Reporting—Precious Truths, Surrounded by a Bodyguard of Lies” (see June 16, 2004). [Los Angeles Times, 6/23/2004] Former CIA analyst Bruce Riedel asks, “What are you going to do with KSM in the long run? It’s a very good question. I don’t think anyone has an answer. If you took him to any real American court, I think any judge would say there is no admissible evidence. It would be thrown out.” Senator Carl Levin (D-MI) says, “A guy as dangerous as KSM is, and half the world wonders if they can believe him—is that what we want? Statements that can’t be believed, because people think they rely on torture?” [New Yorker, 8/6/2007] Journalist James Risen wrote in a 2006 book, “According to a well-placed CIA source, [Mohammed] has now recanted some of what he previously told the CIA during his interrogations. That is an enormous setback for the CIA, since [his debriefings] had been considered among the agency’s most important sources of intelligence on al-Qaeda. It is unclear precisely which of his earlier statements [he] has now disavowed, but any recantation by the most important prisoner in the global war on terror must call into question much of what the United States has obtained from other prisoners around the world…” [Risen, 2006, pp. 33] In a 2008 Vanity Fair interview, a former senior CIA official familiar with the interrogation reports on Mohammed will say, “90 percent of it was total f_cking bullsh_t.” A former Pentagon analyst will add: “KSM produced no actionable intelligence. He was trying to tell us how stupid we were.” [Vanity Fair, 12/16/2008]

Entity Tags: Central Intelligence Agency, Carl Levin, John O. Brennan, Bruce Riedel, Khalid Shaikh Mohammed

Timeline Tags: Torture of US Captives, Complete 911 Timeline, 9/11 Timeline

The Defense Department announces that it is bringing death penalty charges against six high-value enemy detainees currently being held at the Guantanamo Bay detention camp. The six, all charged with involvement in the 9/11 attacks, will be tried under the much-criticized military tribunal system (see October 17, 2006) implemented by the Bush administration. They are:
bullet Khalid Shaikh Mohammed, a Pakistani who claims responsibility for 31 terrorist attacks and plots, is believed to have masterminded the 9/11 attacks, and claims he beheaded Wall Street Journal reporter Daniel Pearl (see January 31, 2002). Mohammed was subjected to harsh interrogation tactics by the CIA, including waterboarding.
bullet Ali Adbul Aziz Ali, Mohammed’s nephew and cousin of jailed Islamist terrorist Ramzi Yousef. He is accused of facilitating the attacks by sending $120,000 to US-based terrorists, and helping nine of the hijackers enter the US.
bullet Ramzi Bin al-Shibh, accused of being a link between al-Qaeda and the 9/11 hijackers. Bin al-Shibh is accused of helping some of the hijackers obtain flight training.
bullet Khallad bin Attash, who has admitted planning the attack on the USS Cole (see October 12, 2000) and is accused of running an al-Qaeda training camp in Afghanistan. He claims to have helped in the bombing of the US embassy in Kenya (see 10:35-10:39 a.m., August 7, 1998).
bullet Mustafa Ahmad al-Hawsawi, accused of being a financier of the 9/11 attacks, providing the hijackers with cash, clothing, credit cards, and traveller’s checks.
bullet Mohamed al-Khatani, another man accused of being a “20th hijacker;” al-Khatani was stopped by immigration officials at Orlando Airport while trying to enter the US. He was captured in Afghanistan.
Many experts see the trials as part of an election-year effort by the Bush administration to demonstrate its commitment to fighting terrorism, and many predict a surge of anti-American sentiment in the Middle East and throughout the Islamic world. Some believe that the Bush administration is using the trials to enhance the political fortunes of Republican presidential candidate John McCain, who has made the US battle against al-Qaeda a centerpiece of his campaign. “What we are looking at is a series of show trials by the Bush administration that are really devoid of any due process considerations,” says Vincent Warren, the executive director head of the Center for Constitutional Rights, which represents many Guantanamo detainees. “Rather than playing politics the Bush administration should be seeking speedy and fair trials. These are trials that are going to be based on torture as confessions as well as secret evidence. There is no way that this can be said to be fair especially as the death penalty could be an outcome.”
Treatment of Detainees an Issue - While the involvement of the six detainees in the 9/11 attacks is hardly disputed, many questions surround their treatment at Guantanamo and various secret “black sites” used to house and interrogate terror suspects out of the public eye. Questions are being raised about the decision to try the six men concurrently instead of separately, about the decision to seek the death penalty, and, most controversially, the admissibility of information and evidence against the six that may have been gathered by the use of torture.
Details of Forthcoming Tribunals - While the charges are being announced now, Brigadier General Thomas Hartmann, the Pentagon official supervising the case, acknowledges that it could be months before the cases actually begin, and years before any possible executions would be carried out. Hartmann promises the trials will be “as completely open as possible,” with lawyers and journalists present in the courtroom unless classified information is being presented. Additionally, the six defendants will be considered innocent until proven guilty, and the defendants’ lawyers will be given “every stitch of evidence” against their clients.
'Kangaroo Court' - British lawyer Clive Stafford Smith, who has worked with “enemy combatants” at Guantanamo, believes nothing of what Hartmann says. The procedures are little more than a “kangaroo court,” Stafford Smith says, and adds, “Anyone can see the hypocrisy of espousing human rights, then trampling on them.” Despite Hartmann’s assurances, it is anything but clear just what rights the six defendants will actually have. [Independent, 2/12/2008] The charges against al-Khahtani are dropped several months later (see May 13, 2008).

Entity Tags: Vincent Warren, US Department of Defense, Khallad bin Attash, Daniel Pearl, Clive Stafford Smith, John McCain, Mohamed al-Khatani, Khalid Shaikh Mohammed, Thomas Hartmann, Center for Constitutional Rights, Ramzi Yousef, Ramzi bin al-Shibh, Bush administration (43), Mustafa Ahmed al-Hawsawi, Ali Abdul Aziz Ali, Al-Qaeda

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

The Congressional Quarterly reports on a growing body of evidence that indicates US interrogators are using mind-altering drugs on prisoners suspected of terrorist ties. The evidence is not yet conclusive, but reporter Jeff Stein writes: “There can be little doubt now that the government has used drugs on terrorist suspects that are designed to weaken their resistance to interrogation. All that’s missing is the syringes and videotapes.”
Connection to Yoo Memo - The idea that the US might be using hallucinogenic or other drugs on detainees in Guantanamo and other US detention facilities was bolstered by the recent revelation of another “torture memo,” this one written in 2003 by then-Justice Department lawyer John Yoo (see March 14, 2003). Yoo wrote that US interrogators could use mind-altering drugs on terror suspects as long as the drugs did not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” Yoo first rationalized the use of drugs on prisoners in earlier “torture memos” (see January 9, 2002 and August 1, 2002).
Criticism - Stephen Miles, a bioethicist and author of a recent book detailing medical complicity in US torture of suspected terrorists, notes: “The new Yoo memo, along with other White House legal memoranda, shows clearly that the policy foundation for the use of interrogational drugs was being laid. The recent memo on mood-altering drugs does not extend previous work on this area. The use of these drugs was anticipated and discussed in the memos of January and February 2002 by [Defense Department, Justice Department], and White House counsel using the same language and rationale. The executive branch memos laid a comprehensive and reiterated policy foundation for the use of interrogational drugs.” Jeffrey Kaye, a clinical psychologist who works with torture victims through Survivors International, says plainly: “Yes, I believe [drugs] have been used. I came across some evidence that they were using mind-altering drugs, to regress the prisoners, to ascertain if they were using deception techniques, to break them down.”
Varieties of Drugs and Placebos Being Used? - It is well known that US military personnel often use sedatives on shackled and hooded prisoners on “rendition” flights from Middle Eastern countries to Guantanamo. There is no hard evidence to support claims that US interrogators are using hallucinogenic drugs such as LSD on detainees. However, Michael Caruso, who represents suspected al-Qaeda operative Jose Padilla (see May 8, 2002), filed a motion last year asserting that his client “was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.” Caruso had no proof to back up his claim.
KUBARK - Stein notes that a 1963 CIA interrogation manual, code-named KUBARK, advocated the use of placebos as well as real drugs on prisoners. And Michael Gelles, a psychologist with the Naval Criminal Investigative Institute who has spoken out against the abuse of prisoners at Guantanamo, says that he never saw anything related to drugs. “I never saw that raised as an issue,” he says. Hallucinogens such as LSD do not make subjects tell the truth. According to KUBARK, “Their function is to cause capitulation, to aid in the shift from resistance to cooperation.”
Winging It - In July 2003, the CIA, the RAND Corporation, and the American Psychological Association hosted a workshop that explored the question of using drugs to “affect apparent truth-telling behavior” (see June 17-18, 2003). After 9/11, top Bush administration officials pushed military commanders for quick intelligence but, according to a recent study, the interrogators unsure how to use harsher methodologies (see December 2006) and began “mak[ing] it up on the fly.”
Guantanamo - Guantanamo staff judge advocate Lieutenant Colonel Diane Beaver says that some of the interrogators drew inspiration from the popular TV drama 24 (see Fall 2006). Beaver makes no mention of drugs being used, but Ewe Jacobs, the director of Survivors International, says she may not have seen or heard about their use. “The Guantanamo camps were isolated from one another,” he says. What happened in one part of the facility may not have been known in other areas. Miles adds, “I suspect that most of the use of interrogational drugs was by CIA and Special Ops interrogators, and thus still remains classified.”
Credibility Issues - As with victims of the CIA’s MK-ULTRA program from the 1960s and 70s, when unwitting subjects were dosed with hallucinogenic drugs and their reactions catalogued and observed, the detainees who may have been forcibly given such drugs will likely not be believed by many. Absent hard evidence, many will consider the detainees either “looney,” in Stein’s words, or liars. Few believe that Padilla was drugged. And, Stein concludes, “Even fewer will believe the other prisoners, a number of whom are deranged from prolonged interrogation—if they ever get out.” [Congressional Quarterly, 4/4/2008]

Entity Tags: Jose Padilla, Ewe Jacobs, Diane E. Beaver, Central Intelligence Agency, Bush administration (43), American Psychological Association, Jeff Stein, John C. Yoo, Richard (“Dick”) Cheney, US Department of the Army, Jeffrey Kaye, Stephen Miles, RAND Corporation, Michael Caruso, Michael Gelles, Survivors International

Timeline Tags: Torture of US Captives

John Conyers.John Conyers. [Source: Public domain / US Congress]Democrats in Congress lambast the Bush administration over recent disclosures that senior White House officials specifically approved the use of extreme interrogation measures against suspected terrorists (see April 2002 and After). Senator Edward Kennedy (D-MA) calls the news “yet another astonishing disclosure about the Bush administration and its use of torture.… Who would have thought that in the United States of America in the 21st century, the top officials of the executive branch would routinely gather in the White House to approve torture? Long after President Bush has left office, our country will continue to pay the price for his administration’s renegade repudiation of the rule of law and fundamental human rights.” [Associated Press, 4/10/2008] John Conyers (D-MI), chairman of the House Judiciary Committee, calls the actions “a stain on our democracy.” Conyers says his committee is considering subpoenaing members of the Principals, and perhaps the author of the torture memo, John Yoo (see August 1, 2002), to testify about the discussions and approvals. [Progressive, 4/14/2008]

Entity Tags: George W. Bush, Bush administration (43), Edward M. (“Ted”) Kennedy, John Conyers, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

The US military dismisses charges against Mohammed al-Khatani. In February 2008, al-Khatani was part of a small group of detainees held at the Guantanamo prison charged before a military tribunal with involvement in the 9/11 attacks (see February 11, 2008). Al-Khatani is said to be the would-be “20th hijacker” who was refused entry to the US in August 2001 (see August 4, 2001). However, he was later captured and subjected to months of torture at Guantanamo (see August 8, 2002-January 15, 2003). The Pentagon official who announces the dismissal of charges against him, Convening Authority Susan Crawford, gives no explanation. The charges are dismissed “without prejudice,” which means they could be reinstated at any time. However, many believe that the charges against him are dismissed because of the torture he underwent, as well as the fact that he appears to have only been a unsuccessful low-level figure in the plot. [New York Times, 5/14/2008] In 2006, MSNBC predicted that he would never face trial due to the way he was tortured (see October 26, 2006). However, he still remains imprisoned at Guantanamo. In January 2009, Crawford will confirm that she dismissed the case against al-Khatani because he was indeed tortured (see January 14, 2009). She will say that the treatment suffered by al-Khatani “did shock me,” and will continue: “I was upset by it. I was embarrassed by it. If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it.” Crawford will lay much of the blame for al-Khatani being tortured at the feet of then-Defense Secretary Donald Rumsfeld. “A lot of this happened on his watch,” she will say. [Washington Post, 1/14/2009]

Entity Tags: Donald Rumsfeld, Mohamed al-Khatani, Susan Crawford

Timeline Tags: Complete 911 Timeline

The American Civil Liberties Union (ACLU) releases several heavily redacted documents detailing the CIA’s use of waterboarding as well as a similarly redacted CIA Office of Inspector General (OIG) report on the CIA’s interrogation and detention program. The documents are obtained through a Freedom of Information Act lawsuit. In addition, Judge Alvin Hellerstein has “preliminarily overruled” CIA assertions that other documents it is withholding are exempt from the lawsuit. ACLU senior official Jameel Jaffer says: “Even a cursory glance at these heavily redacted documents shows that the CIA is still withholding a great deal of information that should be released. This information is being withheld not for legitimate security reasons but rather to shield government officials who ought to be held accountable for their decisions to break the law.”
OIG Report References Classified OLC Torture Memo - The OIG report contains references to an as-yet unreleased Justice Department Office of Legal Counsel (OLC) memo from August 2002 authorizing an array of brutal interrogation methods (see August 1, 2002). (The OIG report calls the memo “unclassified.”)
As-Yet Unreleased Documents - If Hellerstein follows through on his preliminary ruling, the CIA could be forced to disgorge three more documents:
bullet A September 17, 2001 CIA presidential directive setting up secret CIA detention centers abroad (see September 17, 2001);
bullet An August 2002 OLC memo authorizing the CIA to use particular interrogation methods (see August 1, 2002);
bullet CIA documents gathered by the CIA’s inspector general in the course of investigations into unlawful and improper conduct by CIA personnel.
ACLU attorney Amrit Singh says: “We welcome the court’s preliminary ruling rejecting the CIA’s attempt to withhold records relating to its unlawful treatment of prisoners. If sustained, this ruling would be a historic victory that could compel the CIA to publicly disclose for the first time meaningful records relating to its use of torture.” [American Civil Liberties Union, 5/27/2008] The documents will be released two months later (see July 24, 2008).

Entity Tags: Jameel Jaffer, Alvin K. Hellerstein, American Civil Liberties Union, Central Intelligence Agency, Office of the Inspector General (CIA), Amrit Singh, Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives

David Addington and John Yoo before the House Judiciary Committee.David Addington and John Yoo before the House Judiciary Committee. [Source: Washington Post]David Addington, the chief counsel for Vice President Cheney and one of the architects of the Bush administration’s torture policies (see Late September 2001), testifies before the House Judiciary Committee. He is joined by Justice Department lawyer John Yoo, who authored or contributed to many of the legal opinions that the administration used to justify the torture and “extralegal” treatment of terror suspects (see November 6-10, 2001). Addington, unwillingly responding to a subpoena, is, in Washington Post reporter Dana Milbank’s description, “nasty, brutish, and short” with his questioners. [Washington Post, 6/27/2008] He tells lawmakers that the world has not changed much since the 9/11 attacks: “Things are not so different today as people think. No American should think we are free, the war is over, al-Qaeda is not coming.” [Los Angeles Times, 6/27/2008]
Refusing to Define 'Unitary Executive' - Committee chairman John Conyers (D-MI) peppers Addington with questions about the Bush administration and its penchant for the “unitary executive” paradigm, which in essence sees the executive branch as separate and above the other two, “lesser” branches of government. Addington is one of the main proponents of this theory (see (After 10:00 a.m.) September 11, 2001). But instead of answering Conyers’s questions, he slaps away the questions with what Milbank calls “disdain.”
bullet Addington: “I frankly don’t know what you mean by unitary theory.”
bullet Conyers: “Have you ever heard of that theory before?”
bullet Addington: “I see it in the newspapers all the time.”
bullet Conyers: “Do you support it?”
bullet Addington: “I don’t know what it is.”
bullet Conyers (angrily): “You’re telling me you don’t know what the unitary theory means?”
bullet Addington: “I don’t know what you mean by it.”
bullet Conyers: “Do you know what you mean by it?”
bullet Addington: “I know exactly what I mean by it.”
Open Contempt - He flatly refuses to answer most questions, and treats the representatives who ask him those questions with open contempt and, in Milbank’s words, “unbridled hostility.” One representative asks if the president is ever justified in breaking the law, and Addington retorts, “I’m not going to answer a legal opinion on every imaginable set of facts any human being could think of.” When asked if he consulted Congress when interpreting torture laws, Addington snaps: “That’s irrelevant.… There is no reason their opinion on that would be relevant.” Asked if it would be legal to torture a detainee’s child (see After September 11, 2002), Addington answers: “I’m not here to render legal advice to your committee. You do have attorneys of your own.” He offers to give one questioner advice on asking better questions. When asked about an interrogation session he had witnessed at Guantanamo, he replies: “You could look and see mouths moving. I infer that there was communication going on.” At times he completely ignores questions, instead writing notes to himself while the representatives wait for him to take notice of their queries. At other times, he claims an almost complete failure of memory, particularly regarding conversations he had with other Bush officials about interrogation techniques. [Washington Post, 6/27/2008] (He does admit to being briefed by Yoo about an August 2002 torture memo (see August 1, 2002), but denies assisting Yoo in writing it.) [Los Angeles Times, 6/27/2008] Addington refuses to talk more specifically about torture and interrogation practices, telling one legislator that he can’t speak to him or his colleagues “[b]ecause you kind of communicate with al-Qaeda.” He continues, “If you do—I can’t talk to you, al-Qaeda may watch C-SPAN.” When asked if he would meet privately to discuss classified matters, he demurs, saying instead: “You have my number. If you issue a subpoena, we’ll go through this again.” [Think Progress, 6/26/2008; Washington Post, 6/27/2008]
Yoo Dodges, Invokes Privilege - Milbank writes that Yoo seems “embolden[ed]” by Addington’s “insolence.” Yoo engages in linguistic gymnastics similar to Addington’s discussion with Conyers when Keith Ellison (D-MN) asks him whether a torture memo was implemented. “What do you mean by ‘implemented’?” Yoo asks. Ellison responds, “Mr. Yoo, are you denying knowledge of what the word ‘implement’ means?” Yoo says, “You’re asking me to define what you mean by the word?” Ellison, clearly exasperated, retorts, “No, I’m asking you to define what you mean by the word ‘implement.’” Yoo’s final answer: “It can mean a wide number of things.” [Washington Post, 6/27/2008] Conyers asks Yoo, “Could the president order a suspect buried alive?” Yoo responds, “Uh, Mr. Chairman, I don’t think I’ve ever given advice that the president could order someone buried alive.” Conyers retorts: “I didn’t ask you if you ever gave him advice. I asked you thought the president could order a suspect buried alive.” Yoo answers, “Well Chairman, my view right now is that I don’t think a president—no American president would ever have to order that or feel it necessary to order that.” Conyers says, “I think we understand the games that are being played.” Reporter Christopher Kuttruff writes, “Throughout his testimony, Yoo struggled with many of the questions being asked, frequently delaying, qualifying and invoking claims of privilege to avoid answering altogether.” [Human Rights First, 6/26/2008; Truthout (.org), 6/27/2008]

Entity Tags: House Judiciary Committee, John C. Yoo, Al-Qaeda, David S. Addington, Dana Milbank, Christopher Kuttruff, Bush administration (43), John Conyers, Keith Ellison

Timeline Tags: Civil Liberties

Jameel Jaffer.Jameel Jaffer. [Source: ACLU (.org)]The American Civil Liberties Union (ACLU) releases three heavily redacted documents detailing the Bush administration’s use of brutal torture methods against detainees in US custody. The documents are turned over to the ACLU by the CIA after a judge orders their release (see May 27, 2008). “These documents supply further evidence, if any were needed, that the Justice Department authorized the CIA to torture prisoners in its custody,” says ACLU official Jameel Jaffer. “The Justice Department twisted the law, and in some cases ignored it altogether, in order to permit interrogators to use barbaric methods that the US once prosecuted as war crimes.” One document is an August 2002 Office of Legal Counsel (OLC) memo authorizing the CIA to use particular interrogation methods, including waterboarding (see August 1, 2002). The memo states that interrogation methods that cause severe mental pain do not amount to torture under US law unless they cause “harm lasting months or even years after the acts were inflicted upon the prisoners.” The other two documents, from 2003 and 2004, are memos from the CIA related to requests for legal advice from the Justice Department. The 2003 memo shows that the OLC authorized the agency to use what it called “enhanced interrogation techniques”; the memo shows that when those techniques were used, the CIA documented, among other things, “the nature and duration of each such technique employed” and “the identities of those present.” The 2004 memo shows that CIA interrogators were told that the Justice Department had concluded that waterboarding and other “harsh interrogation methods” did not constitute torture. The memo also advised CIA interrogators that, in light of the Supreme Court’s ruling that courts can decide whether foreign citizens could be held at Guantanamo (see June 28, 2004), they should be aware that their actions might possibly be subject to judicial review. Jaffer says: “While the documents released today do provide more information about the development and implementation of the Bush administration’s torture policies, even a cursory glance at the documents shows that the administration continues to use ‘national security’ as a shield to protect government officials from embarrassment, criticism, and possible criminal prosecution. Far too much information is still being withheld.” [American Civil Liberties Union, 7/24/2008]

Entity Tags: US Department of Justice, American Civil Liberties Union, Jameel Jaffer, Bush administration (43), Office of Legal Counsel (DOJ), Central Intelligence Agency

Timeline Tags: Torture of US Captives

Mohamed al-Khatani in September 2009.Mohamed al-Khatani in September 2009. [Source: US Defense Department]Military prosecutors at Guantanamo say they are going to file new war crimes charges against Mohamed al-Khatani, the so-called “20th hijacker” in the 9/11 plot. The senior official in charge of prosecutions at Guantanamo, Susan Crawford, dismissed similar charges against al-Khatani six months before (see May 13, 2008). Military officials now say that even though al-Khatani was originally interrogated using previously approved, then later disapproved, techniques (see August 8, 2002-January 15, 2003 and October 11, 2002), those previous interrogations will not make it impossible to try him. Speculation has been rife that Crawford dismissed the charges against al-Khatani over concerns that he was tortured at Guantanamo. (In 2009, Crawford will verify that al-Khatani was indeed tortured—see January 14, 2009). Colonel Lawrence Morris, the chief prosecutor at Guantanamo, says of al-Khatani, “His conduct is significant enough that he falls into the category of people who ought to be held accountable by being brought to trial.” According to evidence compiled by the 9/11 Commission, al-Khatani was slated to have been one of the “muscle hijackers” (see August 4, 2001). Lieutenant Colonel Bryan Broyles, al-Khatani’s defense lawyer, says new charges filed against his client would be disturbing. “It speaks about the moral bankruptcy of this whole process,” Broyles says, “that there’s nothing we can do to these people that is too much, that there are no consequences for our own misconduct.” [New York Times, 11/18/2008]

Entity Tags: Mohamed al-Khatani, Susan Crawford, Bryan Broyles, Lawrence J. Morris

Timeline Tags: Torture of US Captives

In his first exit interview after the November 2008 elections, Vice President Dick Cheney unapologetically acknowledges that the US used waterboarding on suspected terrorists, and says that the Guantanamo Bay prison should remain open until terrorism has been eradicated. Methods such as waterboarding were indeed used on at least one subject, suspected 9/11 plotter Khalid Shaikh Mohammed (see May 2002-2003, Shortly After February 29 or March 1, 2003, March 7 - Mid-April, 2003, After March 7, 2003, and May 2003), Cheney says, but he goes on to claim that those methods do not constitute torture. “On the question of so-called torture, we don’t do torture,” he says. “We never have. It’s not something that this administration subscribes to. I think those who allege that we’ve been involved in torture, or that somehow we violated the Constitution or laws with the terrorist surveillance program, simply don’t know what they’re talking about.” Asked if he authorized the waterboarding of Mohammed, Cheney says: “I was aware of the program, certainly, and involved in helping get the process cleared, as the agency [CIA] in effect came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.” Cheney says that waterboarding Mohammed produced critically important information: “There was a period of time there, three or four years ago, when about half of everything we knew about al-Qaeda came from that one source. So it’s been a remarkably successful effort. I think the results speak for themselves.” Cheney adds that the invasion of Iraq and the overthrow of Saddam Hussein were justified regardless of whether that nation possessed weapons of mass destruction. The only thing US intelligence got wrong, he says, “was that there weren’t any stockpiles. What they found was that Saddam Hussein still had the capability to produce weapons of mass destruction. He had the technology, he had the people, he had the basic feed stock.” [ABC News, 12/15/2008; ABC News, 12/15/2008] In the US, waterboarding has been considered a war crime at least as far back as World War II (see 1947, January 21, 1968, and November 29, 2007); in 2007, a judge concurred (see November 4, 2007). A former senior Justice Department official determined that waterboarding is torture (see Late 2004-Early 2005), as did a former deputy secretary of state who was subjected to waterboarding as part of his military training (see January 21, 2009) and a US senator who was a prisoner of war in Vietnam (see April 20, 2009). The CIA suspended the use of waterboarding in 2005 after determining that the technique was most likely ineffective and certainly illegal (see Shortly After April 28, 2004-February 2005), and banned it entirely in 2006 (see Between May and Late 2006); the CIA’s Inspector General determined that the practice was torture (see March 6, 2009). The FBI and DIA have forbidden their agents from using the technique (see May 13, 2004 and February 7, 2008). The US military banned its use in 2006 (see September 6, 2006). The king of Saudi Arabia will accuse the Bush administration of torturing prisoners in its custody (see April 24, 2009). The information derived from torturing Mohammed and other prisoners is widely considered unreliable (see August 6, 2007, April 16, 2009, December 18, 2008, and March 29, 2009), and may well have been initially designed to elicit false confessions (see April 22, 2009).

Entity Tags: Central Intelligence Agency, Al-Qaeda, Bush administration (43), Richard (“Dick”) Cheney, Saddam Hussein, Khalid Shaikh Mohammed

Timeline Tags: Torture of US Captives

Vanity Fair reporter David Rose publishes an extensive examination of the US’s use of torture to extract information from a number of suspected militant Islamists, focusing on three subjects: Abu Zubaida (see April - June 2002, Mid-April-May 2002, May 2002-2003, Mid-May, 2002, Mid-May 2002 and After, June 2002, and December 18, 2007), Khalid Shaikh Mohammed (see May 2002-2003, March 7 - Mid-April, 2003, After March 7, 2003, and August 6, 2007), and Binyam Mohamed (see May 17 - July 21, 2002, July 21, 2002 -- January 2004, and January-September 2004). The conclusion he draws, based on numerous interviews with current and former CIA, military, and administration sources, is that torture not only does not work to provide reliable intelligence, it provides so much false information that it chokes the intelligence system and renders the intelligence apparatus unreliable. One CIA official tells Rose: “We were done a tremendous disservice by the [Bush] administration. We had no background in this; it’s not something we do. They stuck us with a totally unwelcome job and left us hanging out to dry. I’m worried that the next administration is going to prosecute the guys who got involved, and there won’t be any presidential pardons at the end of it. It would be okay if it were [former Attorney Generals] John Ashcroft or Alberto Gonzales. But it won’t be. It’ll be some poor GS-13 who was just trying to do his job.”
Enormous Waste of Resources - A veteran FBI counterterrorism agent says the waste of time and resources on false leads generated through torture has been enormous. “At least 30 percent of the FBI’s time, maybe 50 percent, in counterterrorism has been spent chasing leads that were bullsh_t,” he says. “There are ‘lead squads’ in every office trying to filter them. But that’s ineffective, because there’s always that ‘What if?’ syndrome. I remember a claim that there was a plot to poison candy bought in bulk from Costco. You follow it because someone wants to cover himself. It has a chilling effect. You get burned out, you get jaded. And you think, ‘Why am I chasing all this stuff that isn’t true?’ That leads to a greater problem—that you’ll miss the one that is true. The job is 24-7 anyway. It’s not like a bank job. But torture has made it harder.”
No Proof of Efficacy of Torture - Former FBI counterterrorism specialist Dan Cloonan points to the near-total lack of proof the administration has been able to advance to show that torture works. “The proponents of torture say, ‘Look at the body of information that has been obtained by these methods,’” he says. “But if KSM [Khalid Shaikh Mohammed] and Abu Zubaida did give up stuff, we would have heard the details. What we got was pabulum.” A former CIA officer says: “Why can’t they say what the good stuff from Abu Zubaida or KSM is? It’s not as if this is sensitive material from a secret, vulnerable source. You’re not blowing your source but validating your program. They say they can’t do this, even though five or six years have passed, because it’s a ‘continuing operation.’ But has it really taken so long to check it all out?”
Propaganda Value - Officials who analyzed Zubaida’s interrogation reports say that his reports were given such credence within the White House not because of the American lives they would supposedly save, but because they could be used to rebut those who criticized the Iraq invasion. “We didn’t know he’d been waterboarded and tortured when we did that analysis, and the reports were marked as credible as they could be,” says a former Pentagon analyst. “The White House knew he’d been tortured. I didn’t, though I was supposed to be evaluating that intelligence.” He was unable to draw valid conclusions about the importance of Zubaida’s confessions without knowing how the information was extracted. “It seems to me they were using torture to achieve a political objective,” he says. “I cannot believe that the president and vice president did not know who was being waterboarded, and what was being given up.”
False Claims of Preventing London Attack - President Bush has claimed that secret CIA black site interrogations “helped foil a plot to hijack passenger planes and fly them into Heathrow [Airport] and London’s Canary Wharf” (see October 6, 2005). The former head of Scotland Yard’s anti-terrorist branch, Peter Clarke, who served through May 2008 and helped stop several jihadist attacks, says Bush’s claim is specious. Clarke says it is possible that al-Qaeda had considered some sort of project along the lines of Bush’s assertion, but if it had, it was nowhere near fruition. “It wasn’t at an advanced stage in the sense that there were people here in the UK doing it,” he says. “If they had been, I’d have arrested them.” No terror plot of which Clarke is aware has been foiled due to information gathered due to torture.
FBI Director Confirms No Plots Disrupted by Torture Interrogations - Rose concludes by quoting an interview he held with FBI Director Robert Mueller in April 2008. Rose lists a number of plots disrupted by the FBI, all “foiled by regular police work.” He asked Mueller if he was aware of any attacks on America that had been disrupted thanks to what the administration calls “enhanced techniques.” Mueller responded, “I’m really reluctant to answer that.” He paused, looked at an aide, then said quietly, “I don’t believe that has been the case.” [Vanity Fair, 12/16/2008] On April 21, 2009, a spokesman for Mueller will say, “The quote is accurate.” [New York Times, 4/22/2008]

Entity Tags: Central Intelligence Agency, Bush administration (43), Alberto R. Gonzales, Abu Zubaida, US Department of Defense, Robert S. Mueller III, Peter Clarke, Khalid Shaikh Mohammed, Federal Bureau of Investigation, David Rose, George W. Bush, Dan Cloonan, John Ashcroft, Binyam Mohamed

Timeline Tags: Torture of US Captives

Susan Crawford.Susan Crawford. [Source: Susan Crawford / Washington Post]The senior Bush administration official in charge of bringing Guantanamo Bay detainees to trial rules that the US military tortured a detainee, and therefore the US cannot try him. Susan Crawford, the convening authority of military commissions, says that the US tortured Mohamed al-Khatani, a Saudi national accused of planning to participate in the September 11 attacks (see August 4, 2001). Crawford says al-Khatani was interrogated with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, and which cumulatively left him in a “life-threatening condition.” Crawford says: “We tortured [al-]Khatani. His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution. Crawford is a retired judge who served as the Army’s general counsel during the Reagan administration and the Pentagon’s inspector general during the first Bush administration. She is the first senior official of the current Bush administration to publicly state that a detainee was tortured while in US custody.
Cumulative Effect Equals Torture - None of the individual techniques used against al-Khatani were torturous in and of themselves, Crawford says, but the cumulative effect—particularly their duration and the deleterious effect on al-Khatani’s health—combined to constitute torture. “The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” she says. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture. Al-Khatani has been in US custody since December 2001 (see December 2001), and was interrogated from November 2002 through January 2003 (reports of the exact dates vary—see August 8, 2002-January 15, 2003 and October 11, 2002). He was held in isolation until April 2003. “For 160 days his only contact was with the interrogators,” Crawford says. “Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister.” He was threatened with a military dog named Zeus. He “was forced to wear a woman’s bra and had a thong placed on his head during the course of his interrogation,” Crawford says, and “was told that his mother and sister were whores.” With a leash tied to his chains, he was led around the room “and forced to perform a series of dog tricks,” according to reports from his interrogations. He was twice hospitalized with bradycardia, a potentially lethal condition where the heartbeat drops to abnormally low levels.
Ruling Halts Future Prosecution against al-Khatani - Crawford dismissed war crimes charges against al-Khatani in May 2008 (see May 13, 2008). In November, military prosecutors said they would refile charges against al-Khatani, based on subsequent interrogations that did not employ harsh techniques (see November 18, 2008). But Crawford says that she would not let any such prosecutions go forward. However, Crawford is not unaware of the potential danger posed by letting him go free. “There’s no doubt in my mind he would’ve been on one of those planes had he gained access to the country in August 2001,” Crawford says. “He’s a muscle hijacker.… He’s a very dangerous man. What do you do with him now if you don’t charge him and try him? I would be hesitant to say, ‘Let him go.’” Al-Khatani’s civilian lawyer, Gitanjali Gutierrez, says, “There is no doubt he was tortured.” Gutierrez says: “He has loss of concentration and memory loss, and he suffers from paranoia.… He wants just to get back to Saudi Arabia, get married and have a family.” Al-Khatani “adamantly denies he planned to join the 9/11 attack,” she adds. “He has no connections to extremists.” Gutierrez says she thinks Saudi Arabia has an effective rehabilitation program and Khatani ought to be returned there. [Washington Post, 1/14/2009; New York Times, 1/14/2009] His lawyers at the Center for Constitutional Rights describe him as a broken, suicidal man who can never be prosecuted because of his treatment at the hands of his captors. [New York Times, 1/14/2009]
Sympathetic but Unbending - Crawford, a lifelong Republican, says she sympathizes with the situation faced by the Bush administration and the CIA after the 9/11 attacks. “I sympathize with the intelligence gatherers in those days after 9/11, not knowing what was coming next and trying to gain information to keep us safe,” she acknowledges. “But there still has to be a line that we should not cross. And unfortunately what this has done, I think, has tainted everything going forward.” Noting that the 2006 Hamdan v. Rumsfeld case (see June 30, 2006) disallowed torture but allowed for “coercive interrogation techniques,” Crawford says even those techniques should not be allowed: “You don’t allow it in a regular court.” Crawford says she is not yet sure if any of the other five detainees accused of participating in the 9/11 plot, including their leader, Khalid Shaikh Mohammed, were tortured, but she believes they may have been. “I assume torture,” she says, and notes that CIA Director Michael Hayden has publicly confirmed that Mohammed was one of three detainees subjected to waterboarding, a technique classified by law as torture. Crawford has not blocked prosecution of the other five detainees. Ultimately, she says, the responsibility for the farrago of illegal detentions and torture rests with President Bush. He was right to create a system to try suspected terrorists, she says, but the implementation was fatally flawed. “I think he hurt his own effort.… I think someone should acknowledge that mistakes were made and that they hurt the effort and take responsibility for it.… We learn as children it’s easier to ask for forgiveness than it is for permission. I think the buck stops in the Oval Office.” [Washington Post, 1/14/2009]
Rules Change - Pentagon spokesman Geoff Morrell says that the Hamdan case changed the rules, and thus retroactively classified al-Khatani’s treatment as torture. “The [Defense] Department has always taken allegations of abuse seriously,” he says. “We have conducted more than a dozen investigations and reviews of our detention operations, including specifically the interrogation of Mohamed al-Khatani, the alleged 20th hijacker. They concluded the interrogation methods used at [Guantanamo], including the special techniques used on Khatani in 2002, were lawful. However, subsequent to those reviews, the Department adopted new and more restrictive policies and procedures for interrogation and detention operations. Some of the aggressive questioning techniques used on al-Khatani, although permissible at the time, are no longer allowed in the updated Army field manual.” [Washington Post, 1/14/2009]
Prosecutors Unprepared - When Crawford came to Guantanamo as convening authority in 2007, she says “the prosecution was unprepared” to bring cases to trial. Even after four years of working possible cases, “they were lacking in experience and judgment and leadership.” She continues: “A prosecutor has an ethical obligation to review all the evidence before making a charging decision. And they didn’t have access to all the evidence, including medical records, interrogation logs, and they were making charging decisions without looking at everything.” It took over a year, and the intervention of Deputy Defense Secretary Gordon England, for prosecutors to turn over possibly exculpatory evidence to defense lawyers, even though the law requires that such evidence be turned over immediately. The entire system at Guantanamo is a blot on the reputation of the US and its military judicial system, she says: “There’s an assumption out there that everybody was tortured. And everybody wasn’t tortured. But unfortunately perception is reality.” The system she oversees cannot function now, she believes. “Certainly in the public’s mind, or politically speaking, and certainly in the international community” it may be forever tainted. “It may be too late.” [Washington Post, 1/14/2009]

Entity Tags: Susan Crawford, Gordon England, Gitanjali Gutierrez, George W. Bush, Geoff Morrell, Central Intelligence Agency, Khalid Shaikh Mohammed, Bush administration (43), Center for Constitutional Rights, Mohamed al-Khatani, US Department of Defense, Michael Hayden

Timeline Tags: Torture of US Captives

Steven Bradbury, the outgoing head of the Justice Department’s Office of Legal Counsel (OLC), issues a legal opinion finding certain earlier opinions from the OLC invalid. Bradbury is referring to several memos issued by former OLC lawyers John Yoo, Jay Bybee, and others after the 9/11 attacks (see March 2, 2009).
'Doubtful Nature' - Bradbury writes that these opinions had not been relied upon since 2003, and notes that it is important to acknowledge in writing “the doubtful nature of these propositions.” The opinions “do not currently reflect, and have not for some years reflected, the views of the” OLC, Bradbury writes, “and on several occasions we have already acknowledged the doubtful nature of these propositions.”
President's Position - One portion of Bradbury’s memo says it is “not sustainable” to argue that the president’s power as commander in chief “precludes Congress from enacting any legislation concerning the detention, interrogation, prosecution, and transfer of enemy combatants.” Bradbury is referring to a 2002 memo that claimed President Bush could order the “rendition” of detainees to other countries without regard to Congressional legislation (see March 13, 2002).
'Novel and Complex Questions' - In repudiating the memos, Bradbury writes that they were the product of Yoo and others confronting what he calls “novel and complex questions in a time of great danger and under extraordinary time pressure.” [US Department of Justice, 1/15/2009 pdf file; New York Times, 3/2/2009; Reuters, 3/2/2009]
Response - Yale law professor Jack Balkin later notes that the memo does not repudiate “any of the Bush administration’s specific policies regarding surveillance, detention, and interrogation.” [Jack Balkin, 3/3/2009] In 2004, the Justice Department repudiated the so-called “golden shield” memo, written by Yoo and the then-chief counsel for Vice President Cheney, David Addington, which gave US personnel almost unlimited authority to torture prisoners (see August 1, 2002). The New York Times writes that Bradbury’s last-minute memo “appears to have been the Bush lawyers’ last effort to reconcile their views with the wide rejection by legal scholars and some Supreme Court opinions of the sweeping assertions of presidential authority made earlier by the Justice Department.” Walter Dellinger, who headed the OLC during the Clinton administration, says that Bradbury’s memo “disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were.” Dellinger says it is important to note that the Bush administration’s assertions “that Congress had absolutely no role in these national security issues was contrary to constitutional text, historical practice, and judicial precedent.” [New York Times, 3/2/2009] Bradbury, who like Yoo and Bybee may face disbarment, is careful to note that while the legal opinions are invalid, he is not suggesting that the authors did not “satisfy” professional standards. [Washington Post, 3/3/2009]

Entity Tags: John C. Yoo, Steven Bradbury, Office of Legal Counsel (DOJ), New York Times, Walter Dellinger, Jay S. Bybee, Jack Balkin, US Department of Justice

Timeline Tags: Civil Liberties

Constitutional lawyer and author Bruce Fein, a former official in the Justice Department under Ronald Reagan, writes that if President Obama wants to “restore the rule of law and to prevent future wrongdoing by high-level government officials,” he “should investigate, among others, former President George W. Bush, former Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, former Attorney General John Ashcroft, former White House counsel and Attorney General Alberto Gonzales, and former White House political adviser Karl Rove. The crimes to be investigated should include complicity in torture, illegal surveillance, illegal detention, perjury, obstruction of justice, and contempt of Congress. Prosecutions should follow if the evidence convinces a grand jury to indict.” Fein states that “[t]he best way to deter government criminality and to teach citizens the rule of law is to punish the perpetrators who are unanimously found guilty beyond a reasonable doubt by independent and impartial jurors.”
FBI, CIA Feared Prosecution for Torture - He notes that the FBI refused to participate in “enhanced interrogation techniques,” including waterboarding, for fear of being charged with war crimes. And the CIA required specific legal opinions from the Bush Justice Department—the so-called “golden shield” (see August 1, 2002)—and specific presidential authorization before it would allow its agents to torture detainees. And the White House ordered an end to waterboarding after it was warned that such tactics left its officials open to charges of torture and war crimes.
Attorney General Feared Prosecution under FISA - He goes on to note that Justice Department officials such as acting Attorney General James Comey “balked at approving… Bush’s warrantless surveillance program without modification in March 2004 probably because he feared criminal prosecution under the Foreign Intelligence Surveillance Act” (see 1978).
'Unpunished Lawlessness by Government Officials Invites Lawlessness Generally' - Fein asserts that “unpunished lawlessness by government officials invites lawlessness generally.” He quotes former Supreme Court Justice Louis Brandeis: “Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” The best way to deter criminal behavior, he says, is to prosecute alleged criminals, and that process must start with government officials. [Washington Times, 1/20/2009]

Entity Tags: Bruce Fein

Timeline Tags: Civil Liberties

Former Attorney General Alberto Gonzales tells an NPR reporter that he never allowed the Justice Department (DOJ) to become politicized, and that he believes the historical judgment of his tenure in the department will be favorable. He acknowledges making some errors, including failing to properly oversee the DOJ’s push to fire nine US attorneys in 2008, a process many believe was orchestrated by the White House with the involvement of Gonzales and then-White House political guru Karl Rove.
Failure to Engage - “No question, I should have been more engaged in that process,” he says, but adds that he is being held accountable for decisions made by his subordinates. “I deeply regret some of the decisions made by my staff,” he says, referring to his former deputy Paul McNulty, who resigned over the controversy after telling a Senate committee that the attorney firings were performance-related and not politically motivated. Gonzales says his then-chief of staff, Kyle Sampson, was primarily responsible for the US attorney review process and for working with McNulty. “If Paul McNulty makes a recommendation to me—if a recommendation includes his views—I would feel quite comfortable that those would be good recommendations coming to me” about the qualifications of the US attorneys under question, Gonzales says. He adds that he has “seen no evidence” that Rove or anyone at the White House tried to use the US attorneys to politicize the work at the DOJ. A review by the DOJ’s Inspector General found that the firing policy was fundamentally flawed, and that Gonzales was disengaged and had failed to properly supervise the review process.
Claims He Was Unfairly Targeted by 'Mean-Spirited' Washington Insiders - Gonzales says he has been unfairly held responsible for many controversial Bush administration policies, including its refusal to abide by the Geneva Conventions (see Late September 2001, January 9, 2002, January 18-25, 2002, January 25, 2002, August 1, 2002, November 11, 2004, and January 17, 2007) and its illegal eavesdropping on US citizens (see Early 2004, March 9, 2004, December 19, 2005, Early 2006, and February 15, 2006), because of his close personal relationship with former President Bush. Washington, he says, is a “difficult town, a mean-spirited town.” He continues: “Sometimes people identify someone to target. That’s what happened to me. I’m not whining. It comes with the job.”
Visiting Ashcroft at the Hospital - In 2004, Gonzales, then the White House counsel, and White House chief of staff Andrew Card raced to the bedside of hospitalized Attorney General John Ashcroft to persuade, or perhaps coerce, Ashcroft to sign off on a secret government surveillance program (see March 10-12, 2004). The intervention was blocked by Deputy Attorney General James Comey (see March 12-Mid-2004). Gonzales says he has no regrets about the incident: “Neither Andy nor I would have gone there to take advantage of somebody who was sick. We were sent there on behalf of the president of the United States.” As for threats by Justice Department officials to resign en masse over the hospital visit (see Late March, 2004), Gonzales merely says, “Lawyers often disagree about important legal issues.”
Warning about Plain Speaking - Gonzales says Obama’s attorney general nominee, Eric Holder, should refrain from making such statements as Holder made last week when he testified that waterboarding is torture. “One needs to be careful in making a blanket pronouncement like that,” Gonzales says, adding that such a statement might affect the “morale and dedication” of intelligence officials and lawyers who are attempting to make cases against terrorism suspects. [National Public Radio, 1/26/2009]

Entity Tags: US Department of Justice, Eric Holder, Bush administration (43), Andrew Card, Alberto R. Gonzales, Geneva Conventions, George W. Bush, James B. Comey Jr., Karl C. Rove, Paul J. McNulty, D. Kyle Sampson

Timeline Tags: Civil Liberties

John Yoo, the former Bush administration legal adviser who authored numerous opinions on the legality of torture, detentions without legal representation, and warrantless wiretapping (see November 6-10, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002, among others), writes an op-ed for the Wall Street Journal opposing the Obama administration’s intent to close the Guantanamo Bay detention facility (see January 20, 2009 and January 22, 2009)) and restrict the CIA’s ability to torture detainees (see January 22, 2009). Yoo, now a law professor and a member of the neoconservative American Enterprise Institute, writes that while President Obama’s decision “will please his base” and ease the objections to the Bush “imperial presidency,” it will “also seriously handicap our intelligence agencies from preventing future terrorist attacks.” Yoo writes that the Obama decisions mark a return “to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001.” Yoo recommends that Obama stay with what he calls “the Bush system” of handling terror suspects. Yoo fails to note that the US law enforcement system prevented, among others, the “millennium bombing” plot (see December 14, 1999), the plot to bomb New York City’s Lincoln and Holland Tunnels (see June 24, 1993), and Operation Bojinka (see January 6, 1995).
Obama Needs to be Able to Torture Prisoners Just as Bush Did, Yoo Declares - And by eschewing torture, Obama is giving up any chance on forcing information from “the most valuable sources of intelligence on al-Qaeda” currently in American custody. The Bush administration policies prevented subsequent terrorist attacks on the US, Yoo contends, and Obama will need the same widespread latitude to interrogate and torture prisoners that Bush employed: “What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al-Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)” It is noteworthy that Yoo refused to confirm that Bush ordered waterboarding of suspects during his previous Congressional hearings (see June 26, 2008).
Interrogations Must be 'Polite' - According to Yoo, in forcing the CIA and other US interrogators to follow the procedures outlined in the Army Field Manual, they can no longer use “coercive techniques, threats and promises, and the good-cop bad-cop routines used in police stations throughout America.… His new order amounts to requiring—on penalty of prosecution—that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.” [Wall Street Journal, 1/29/2009] Yoo is incorrect in this assertion. The Army Field Manual explicitly countenances many of the “coercive techniques, threats and promises, and the good-cop bad-cop routines” Yoo says it bans. Further, the Field Manual says nothing about requiring interrogators to be “polite.” [Army, 9/2006] And actual field interrogators such as the Army’s Matthew Alexander have repeatedly said that torturing prisoners is ineffective and counterproductive, while building relationships and treating prisoners with dignity during interrogations produces usable, reliable intelligence (see November 30, 2008).
Shutting Down Military Commissions - Obama’s order to stay all military commission trials and to review the case of “enemy combatant” Ali Saleh al-Marri (see June 23, 2003) is also mistaken, Yoo writes. Yoo fears that Obama will shut down the military commissions in their entirety and instead transfer detainees charged with terrorist acts into the US civilian court system. He also objects to Obama’s apparent intent to declare terrorists to be prisoners of war under the Geneva Conventions, instead of following the Bush precedent of classifying terrorists “like pirates, illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.” To allow terror suspects to have rights under Geneva and the US legal system, Yoo asserts, will stop any possibility of obtaining information from those suspects. Instead, those suspects will begin using the legal system to their own advantage—refusing to talk, insisting on legal representation and speedy trials instead of cooperating with their interrogators. “Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court,” Yoo writes. [Wall Street Journal, 1/29/2009] In reality, the Supreme Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), as well as the Detainee Treatment Act (see December 15, 2005) and the Military Commissions Act (see October 17, 2006), all mandate that detainees must be handled according to the Geneva Conventions.
Risk to Americans - Another effect of transferring detainees into the civilian justice system, Yoo claims, is to allow “our enemies to obtain intelligence on us.” Defense lawyers will insist on revealing US intelligence—information and methods—in open court, and will no doubt force prosecutors to accept plea bargains “rather than risk disclosure of intelligence secrets.”
Obama 'Open[ed] the Door to Further Terrorist Acts on US Soil' - Obama said in his inaugural speech that the US must “reject as false the choice between our safety and our ideals.” Yoo calls that statement “naive,” and writes, “That high-flying rhetoric means that we must give al-Qaeda—a hardened enemy committed to our destruction—the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.” By making his choices, Yoo writes, “Mr. Obama may have opened the door to further terrorist acts on US soil by shattering some of the nation’s most critical defenses.” [Wall Street Journal, 1/29/2009]

Entity Tags: John C. Yoo, Barack Obama, American Enterprise Institute, Wall Street Journal, Obama administration

Timeline Tags: Torture of US Captives, Civil Liberties

Alberto Mora, the former general counsel for the Navy and a harsh critic of the Bush administration’s torture policies (see January 23-Late January, 2003), says: “I will tell you this: I will tell you that General Anthony [Antonio] Taguba, who investigated Abu Ghraib, feels now that the proximate cause of Abu Ghraib were the OLC memoranda that authorized abusive treatment (see November 6-10, 2001 and August 1, 2002). And I will also tell you that there are general-rank officers who’ve had senior responsibility within the Joint Staff or counterterrorism operations who believe that the number one and number two leading causes of US combat deaths in Iraq have been, number one, Abu Ghraib, number two, Guantanamo, because of the effectiveness of these symbols in helping recruit jihadists into the field and combat against American soldiers.” [Vanity Fair, 2/2009]

Entity Tags: Alberto Mora, Bush administration (43), Antonio M. Taguba

Timeline Tags: Torture of US Captives

Upon his return from a brief tour of the Guantanamo detention facility (see January 30, 2009), Senator James Inhofe (R-OK) delivers a speech on the floor of the Senate recommending that the facility remain open, despite President Obama’s decision to close it (see January 22, 2009). Inhofe says, “The military detention facilities at GTMO meet the highest international standards and are a fundamental part of protecting the lives of Americans from terrorism.” He says “[t]he detainees are being treated humanely,” there are “two lawyers for every detainee that has been charged or had charges preferred against them,” and there is one health care professional for every two detainees, ensuring that they receive the highest level of medical care (see April-May 2002, August 8, 2002-January 15, 2003, and March 10-April 15, 2007). Guantanamo “is the only complex in the world that can safely and humanely hold these individuals who pose such a grave security risk to the US,” Inhofe insists. “It is a secure location away from population centers, provides the maximum security required to prevent escape, provides multiple levels of confinement opportunities based on the compliance of the detainee, and provides medical care not available to a majority of the population of the world.” He goes on: “Furthermore, GTMO is the single greatest repository of human intelligence in the war on terror. This intelligence has prevented terrorist attacks and saved lives in the past and continues to do so today (see Summer 2000 and November 30, 2008). New intelligence is continually being collected from detainees at GTMO and is being used to fight terrorists in Iraq, Afghanistan and around the globe.” Since the US “will continue to capture, hold and detain enemy combatants,” he says, “we require a location to safely detain and care for these detainees.” [US Senate, 2/5/2009] Fellow Republican Senator Richard Burr (R-NC), who joined Inhofe on the tour, agrees, saying that the Guantanamo facility is “well thought out and in keeping with our nation’s highest ideals.” Burr adds that it is the US guards, not the prisoners, who are being mistreated: “If anyone receives mistreatment at Guantanamo, it is the guard force. They must endure frequent verbal and physical attacks from detainees while maintaining the highest standard of care for those same individuals.” [US Senate, 2/2/2009] Neither Inhofe nor Burr address the hunger strike among Guantanamo detainees, nor the allegations that prisoners are being force-fed and beaten (see February 8, 2009). Satyam Khanna of the left-leaning website Think Progress notes: “It is unclear how Inhofe and his conservative colleagues failed to see 50 detainees on hunger strike, some near death, while touring the prison. Conveniently, none of the senators alerted the public to these facts upon their return.” [Think Progress, 2/9/2009]

Entity Tags: Richard Burr, Barack Obama, James M. Inhofe, Satyam Khanna

Timeline Tags: Torture of US Captives, Civil Liberties

Retired Major General Anthony Taguba, who headed an intensive military investigation into the abuses at Abu Ghraib prison (see March 9, 2004), is one of the most prominent supporters of the call to investigate the Bush administration’s interrogation, detention, and torture policies. Taguba joins 18 human rights organizations, former State Department officials, former law enforcement officers, and former military leaders in asking President Obama to create a non-partisan commission to investigate those abuses. Even though prosecuting former Bush officials might be difficult, Taguba says, a commission would provide some measure of accountability for the practices Taguba calls “misguided,” “illegal,” “despicable and questionable.” Taguba wants the commission to study the Bush administration’s claims that torture provides good intelligence, which he disputes. He particularly wants the commission to investigate administration officials’ claims that the administration’s policies were legal. Taguba says he supports “a structured commission with some form of authority with clear objectives and a follow-on action plan. I’m not looking for anything that is prosecutorial in nature, unless a suspected violation of relevant laws occurred, which should be referred to the Department of Justice.… In my opinion, our military prosecuted those who were involved in torture or unlawful interrogation. And I think our military has come to terms with that. We are an institution that prides itself on taking corrective action immediately, admitting to it, and holding ourselves accountable. And we have done that. But I am not so sure that our civilian authorities in government have done that for themselves.” Speaking about the Bush Justice Department’s findings that torture and indefinite detentions are legal (see Late September 2001, November 11-13, 2001, December 28, 2001, January 9, 2002, August 1, 2002, and August 1, 2002), Taguba says: “This notion that a lot of constitutional legal experts—lawyers with great intellect, well educated—came up with such despicable and questionable legal findings that were contrary to the definition of defending the Constitution? And then they framed this as if the executive branch had the authority to extend beyond the constitution to establish a policy of torture and illegal detention?… Some of those that were tortured were innocent. How do we come to terms with those that were cruelly mistreated and were innocent, never charged, were illegally detained, and never compensated for their suffering? This is not a political issue, but a moral and ethical dilemma which has far-reaching implications.” [Salon, 2/21/2009]

Entity Tags: Antonio M. Taguba

Timeline Tags: Torture of US Captives

A Justice Department investigation finds that the legal work done by John Yoo and two other former Justice lawyers for the Bush administration was unacceptably deficient. Opinions written by Yoo, his former boss Jay Bybee of the Office of Legal Counsel (OLC), and Bybee’s successor, Steven Bradbury, often ignored legal precedent and existing case law as they took extralegal stances on a number of controversial issues, including torture and domestic surveillance. Many of the opinions, including the August 2002 “Golden Shield” memo (see August 1, 2002), were written specifically to authorize illegal acts such as waterboarding that had already taken place, in an apparent attempt to provide the Bush administration with retroactive legal “cover.” The investigation finds that in that memo, Yoo ignored the landmark 1952 Youngstown Supreme Court ruling (see June 2, 1952) that restricts presidential authority. The investigation also finds that in the March 2003 memo authorizing the military to ignore the law in using extreme methods in interrogating suspected terrorists (see March 14, 2003), Yoo ignored the advice of military lawyers and Justice Department officials who warned that the memo contained major legal flaws. In this and others of Yoo’s torture memos, the investigation finds that he went well beyond the legal bounds of interrogation methods, failed to cite legal cases that might have undercut the Bush administration’s claims of broad new war powers, and refused to rewrite his opinions in light of these caveats. And, the investigation finds, Yoo often went over the head of Attorney General John Ashcroft and dealt directly with the White House, particularly with White House lawyers David Addington and Alberto Gonzales. The investigation was headed by H. Marshall Jarrett, the head of the Justice Department’s Office of Professional Responsibility (OPR), and has been in operation since 2004, following the Abu Ghraib torture scandal and the leak of one of Yoo’s “torture memos.” It is unclear whether the final OPR report will find that the actions of the former OLC lawyers rose to the level of “professional misconduct.” The report is being reviewed by Attorney General Eric Holder and other Justice Department officials. A draft was actually completed last year, and a copy was supposed to be given to Senators Richard Durbin (R-IL) and Sheldon Whitehouse (D-RI), but then-Attorney General Michael Mukasey repeatedly blocked the report’s release in order to give Yoo, Bybee, and Bradbury time to prepare their responses. Durbin and Whitehouse have asked Jarrett to explain the delay in the report’s release. [Public Record, 2/22/2009]

Entity Tags: David S. Addington, Sheldon Whitehouse, Steven Bradbury, US Department of Justice, Richard (“Dick”) Durbin, Bush administration (43), Office of Professional Responsibility, Michael Mukasey, Eric Holder, Office of Legal Counsel (DOJ), H. Marshall Jarrett, Alberto R. Gonzales, John C. Yoo, John Ashcroft, Jay S. Bybee

Timeline Tags: Civil Liberties

The Senate Armed Services Committee releases a report showing that CIA and Pentagon officials explored ways to “break” Taliban and al-Qaeda detainees in early 2002, eight months before the Justice Department issued its “golden shield” memo (see August 1, 2002) approving the use of waterboarding and nine other methods of interrogation that most legal observers believe amount to torture. The report, under Pentagon review since before its release, focuses solely on military interrogations, and not on interrogations carried out by CIA officers and contractors; it rejects claims by former Defense Secretary Donald Rumsfeld and other Bush administration officials that Pentagon policies played no role in the torture of prisoners in US custody. Committee chairman Carl Levin (D-MI) says the report shows a direct link between early Bush administration policy decisions and the torture and abuse of detainees. “Senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Levin says. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses. The paper trail on abuse leads to top civilian leaders, and our report connects the dots. This report, in great detail, shows a paper trail going from that authorization” by Rumsfeld “to Guantanamo to Afghanistan and to Iraq.” [Senate Armed Services Committee, 11/20/2008 pdf file; New York Times, 4/21/2009; Agence France-Presse, 4/21/2009; Washington Post, 4/22/2009]
Torture Policies Driven from Top - One of the report’s findings is that top Bush administration officials, and not a “few bad apples” as many of that administration’s officials have claimed, are responsible for the use of torture against detainees in Guantanamo, Afghanistan, Iraq, and elsewhere. Levin says in a statement that the report proves that such claims “were simply false.” He adds that the report is “a condemnation of both the Bush administration’s interrogation policies and of senior administration officials who attempted to shift the blame for abuse—such as that seen at Abu Ghraib, Guantanamo Bay, and Afghanistan—to low-ranking soldiers.” [Senate Armed Services Committee, 11/20/2008 pdf file; Washington Post, 4/22/2009] The report adds details to the material already released that showed Bush officials, particularly those in the Offices of the Vice President and Defense Secretary, pushed for harsher and more brutal interrogation techniques to be used during the run-up to war with Iraq, in hopes that results might prove the link between Iraq and al-Qaeda that administration officials had long touted (see December 11, 2008). Levin says: “I think it’s obvious that the administration was scrambling then to try to find a connection, a link [between al-Qaeda and Iraq]. They made out links where they didn’t exist.” Senior Guantanamo interrogator David Becker confirmed that only “a couple of nebulous links” between al-Qaeda and Iraq were uncovered during interrogations of unidentified detainees. [McClatchy News, 4/21/2009]
Ignored Warnings that Torture Techniques Worthless, Illegal - The report, released in classified form in December 2008 (see December 11, 2008), also documents multiple warnings from legal sources and trained interrogation experts that the techniques could backfire, producing false and erroneous intelligence, and might violate US and international law. One Army lieutenant colonel warned in 2002 that coercion “usually decreases the reliability of the information because the person will say whatever he believes will stop the pain,” according to the Senate report. Another official, after being briefed on plans to use “extreme methods” on detainees, asked, “Wouldn’t that be illegal?” [Senate Armed Services Committee, 11/20/2008 pdf file; Agence France-Presse, 4/21/2009; Washington Post, 4/22/2009]
Torture Methods Became Procedures at Detention Sites - Instead of being abandoned, the methods became the basis for harsh interrogations at Guantanamo, Abu Ghraib, Bagram, and other US detention facilities around the world, including the CIA’s so-called “black sites.” [Senate Armed Services Committee, 11/20/2008 pdf file; Washington Post, 4/22/2009]
White House Officials Ignorant of SERE Techniques - The report—261 pages long and with almost 1,800 footnotes—documents how techniques from a US military training program called Survival, Evasion, Resistance, and Escape (SERE) were adapted for use against detainees. SERE trains US soldiers to resist harsh interrogation methods if captured by an enemy that does not observe the Geneva Conventions’ ban on torture. The military’s Joint Personnel Recovery Agency (JRPA) reverse-engineered SERE methods to use against detainees (see December 2001). Other tactics, such as waterboarding, were culled from methods used by Chinese Communists against US soldiers captured during the Korean War (see July 2002). [Senate Armed Services Committee, 11/20/2008 pdf file; Agence France-Presse, 4/21/2009; Washington Post, 4/22/2009] According to the report, Bush White House officials seemed unaware of the Chinese Communist origins of the SERE tactics, and were apparently unaware that veteran SERE trainers insisted that the methods were useless for getting reliable information from a prisoner. Moreover, the former military psychologist who recommended that the CIA adopt SERE techniques “had never conducted a real interrogation.” One CIA official called the process “a perfect storm of ignorance and enthusiasm.” Bush administration officials also ignored concerns raised by military legal experts over the efficacy and legality of the techniques (see November 2002).
Torture Policies Directly Responsible for Abu Ghraib Scandal - The Armed Service Committee concludes that the abuses at Abu Ghraib were a direct result of the Bush torture policies. It writes: “The abuses of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own.… Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials (see December 2, 2002) conveyed the message that physical pressures and degradation were appropriate treatment for detainees in US custody.” [Senate Armed Services Committee, 11/20/2008 pdf file]

Entity Tags: Carl Levin, Central Intelligence Agency, Senate Armed Services Committee, Donald Rumsfeld, US Department of Defense, Geneva Conventions, Joint Personnel Recovery Agency, Bush administration (43)

Timeline Tags: Torture of US Captives

Ali Soufan, an FBI supervisory special agent from 1997 to 2005, writes an op-ed for the New York Times about his experiences as a US interrogator. Soufan, who was one of the initial interrogators of suspected al-Qaeda operative Abu Zubaida (see Late March through Early June, 2002), says he has remained silent for seven years “about the false claims magnifying the effectiveness of the so-called enhanced interrogation techniques like waterboarding.” Until now, he has spoken only in closed government hearings, “as these matters were classified.” But now that the Justice Department has released several memos on interrogation (see April 16, 2009), he can publicly speak out about the memos. “I’ve kept my mouth shut about all this for seven years,” Soufan says. “I was in the middle of this, and it’s not true that these techniques were effective. We were able to get the information about Khalid Shaikh Mohammed in a couple of days. We didn’t have to do any of this [torture]. We could have done this the right way.” [New York Times, 4/22/2009; Newsweek, 4/25/2009] In early 2002, Soufan trained Guantanamo interrogators in the use of non-coercive interrogation techniques; a colleague recalls the military intelligence officials in the session being resistant to the ideas Soufan proposed (see Early 2002). [Newsweek, 4/25/2009]
'False Premises' Underpinning Use of Torture - Soufan says the memos are based on what he calls “false premises.” One is the August 2002 memo granting retroactive authorization to use harsh interrogation methods on Zubaida on the grounds that previous methods had been ineffective (see August 1, 2002). Soufan asserts that his questioning of Zubaida had indeed been productive (contradicting earlier CIA claims—see December 10, 2007), and that he used “traditional interrogation methods” to elicit “important actionable intelligence” from the suspected operative. The harsh methods later used on Zubaida produced nothing that traditional methods could not have produced, Soufan says; moreover, those harsh techniques—torture—often “backfired” on the interrogators. Many of the methods used on detainees such as Zubaida remain classified, Soufan writes: “The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.”
False Claims 'Proving' Usefulness of Torture - Some claim that Zubaida gave up information leading to the capture of suspected terrorists Ramzi bin al-Shibh and Jose Padilla. “This is false,” Soufan writes. “The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.”
Restoring the 'Chinese Wall' - Because of the use of torture by the CIA, the two agencies will once again be separated by what Soufan calls “the so-called Chinese wall between the CIA and FBI, similar to the communications obstacles that prevented us from working together to stop the 9/11 attacks.” Since the FBI refused to torture suspects in its custody, “our agents who knew the most about the terrorists could have no part in the investigation. An FBI colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him.”
Targeted Investigations - Soufan writes that any investigations into the use of torture by the CIA should not seek to punish the interrogators who carried out the government’s policies. “That would be a mistake,” he writes. “Almost all the agency officials I worked with on these issues were good people who felt as I did about the use of enhanced techniques: it is un-American, ineffective, and harmful to our national security.” Soufan goes farther, adding, “It’s worth noting that when reading between the lines of the newly released memos, it seems clear that it was contractors, not CIA officers, who requested the use of these techniques.” The CIA itself must not be targeted for retribution, Soufan writes, as “[t]he agency is essential to our national security.” Instead, “[w]e must ensure that the mistakes behind the use of these techniques are never repeated.” [New York Times, 4/22/2009; Newsweek, 4/25/2009]

Entity Tags: US Department of Justice, Khalid Shaikh Mohammed, Jose Padilla, Federal Bureau of Investigation, Ali Soufan, Abu Zubaida, Ramzi bin al-Shibh

Timeline Tags: Torture of US Captives, Complete 911 Timeline

As calls mount for the impeachment of Judge Jay Bybee (see April 21, 2009), who signed off on two key Bush-era torture memos as the head of the Justice Department’s Office of Special Counsel (see August 1, 2002 and August 1, 2002), some friends of Bybee’s say that he now regrets signing the memos. “I’ve heard him express regret at the contents of the memo,” says a fellow legal scholar who refuses to allow his name to be published. “I’ve heard him express regret that the memo was misused. I’ve heard him express regret at the lack of context—of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety.” The scholar adds: “On the primary memo, that legitimated and defined torture, he just felt it got away from him. What I understand that to mean is, any lawyer, when he or she is writing about something very complicated, very layered, sometimes you can get it all out there and if you’re not careful, you end up in a place you never intended to go. I think for someone like Jay, who’s a formalist and a textualist, that’s a particular danger.” Democratic lawmakers complain that Bybee won quick Senate confirmation for his judgeship (see February 5, 2003) in part because he did not discuss the memos during his confirmation hearings. Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, says, “If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed.” Leahy says that now, “the decent and honorable thing for him to do would be to resign.” ACLU senior official Jameel Jaffer says that whatever regrets or caveats Bybee may be experiencing are moot. “I don’t think the August 2002 memos reflect serious attempts to grapple in good faith with the law,” Jaffer says. “These are documents that are meant to justify predetermined ends. They’re not objective legal memos at all.” [Washington Post, 4/25/2009; Think Progress, 4/25/2009]

Entity Tags: Office of Special Counsel, Bush administration (43), Jameel Jaffer, Jay S. Bybee, US Department of Justice, Patrick J. Leahy

Timeline Tags: Torture of US Captives

Senator and former presidential candidate John McCain (R-AZ), a strong opponent of torture (see July 24, 2005 and After, October 1, 2005, November 21, 2005, December 13, 2005, December 15, 2005, and April 20, 2009), says that the US must “move on” from the Bush era of torture and not investigate the Bush administration’s torture policies. McCain refuses to support Democratic calls to impeach former Justice Department official Jay Bybee, who authored several of the torture memos (see August 1, 2002 and August 1, 2002), even as he acknowledges Bybee broke the law. McCain says: “He falls into the same category as everybody else as far as giving very bad advice and misinterpreting, fundamentally, what the United States is all about, much less things like the Geneva Conventions. Look, under President Reagan we signed an agreement against torture. We were in violation of that.” McCain says that “no one has alleged, quote, wrongdoing” on the part of Bush officials such as Bybee, saying only that they gave “bad advice” to Bush and other senior officials. [Think Progress, 4/26/2009]

Entity Tags: John McCain, Bush administration (43), Jay S. Bybee

Timeline Tags: Torture of US Captives

Der Spiegel reports new evidence proving that the CIA ran a secret prison in Poland and tortured prisoners there. The prison is identified as the Polish military airbase of Stare Kiejkuty, about an hour’s drive north of the Szymany military airbase. One of the most well-known of the “high-value” prisoners kept there was accused 9/11 plotter Khalid Shaikh Mohammed, who was tortured (see March 7 - Mid-April, 2003) and waterboarded (see After March 7, 2003) in the facility. A Gulfstream N379P jet, known to Polish investigators as the “torture taxi,” landed at least five times at Szymany between February and July 2003. According to Der Spiegel, “Flight routes were manipulated and falsified for this purpose and, with the knowledge of the Polish government, the European aviation safety agency Eurocontrol was deliberately deceived.” A witness told the public prosecutor’s office in Warsaw of seeing people wearing handcuffs and blindfolds being led from the aircraft at Szymany, far from the control tower. The witness said it was always the same individuals and the same civilian vehicles that stood waiting on the landing field. Mohammed told delegates from the International Committee of the Red Cross (ICRC) that most of the group at the airfield wore ski masks, presumably to avoid being identified. “On arrival the transfer from the airport to the next place of detention took about one hour,” he told the ICRC. “I was transported sitting on the floor of a vehicle. I could see at one point that there was snow on the ground. Everybody was wearing black, with masks and army boots, like Planet-X people.” Robert Majewski, the Warsaw public prosecutor who took the witness statement cited above, has been investigating former Polish Prime Minister Leszek Miller’s government on allegations of abuse of office. One of the issues surrounding the Miller administration is its alleged secret cooperation with the CIA, and its alleged granting of free rein to the agency over the Stare Kiejkuty military base for its extraterritorial rendition program and torture interrogations. Majewski is also investigating whether the Polish intelligence agency, WSI, made 20 of its agents available to the CIA. Recently, two Polish journalists, Mariusz Kowalewski and Adam Krzykowski, have discovered flight record books from Szymany that had been declared lost. Based on these documents, and on a number of interviews with sources, the two journalists have put together a patchwork of evidence pointing to the CIA’s use of Stare Kiejkuty for secret rendition and torture purposes. They say that they lack a final piece of proof—that CIA interrogator Deuce Martinez, one of the primary interrogators of Mohammed, was in Poland at the time of Mohammed’s detention in Stare Kiejkuty. Rumors abound of Martinez’s presence, but Kowalewski and Krzykowski lack the evidence to prove it. Much of Kowalewski and Krzykowski’s reporting has been confirmed by a 2007 investigation conducted by the special investigator for the Council of Europe, Dick Marty. A WSI official told the Marty investigators, “The order to give the CIA everything they needed came from the very top, from the president,” meaning former President Aleksander Kwasniewski, who denies the allegation. The CIA has always denied any knowledge of, or involvement with, such a facility. [Der Spiegel (Hamburg), 4/27/2009]

Entity Tags: Khalid Shaikh Mohammed, Der Spiegel, Central Intelligence Agency, Aleksander Kwasniewski, Adam Krzykowski, Deuce Martinez, International Committee of the Red Cross, Dick Marty, Robert Majewski, Leszek Miller, Mariusz Kowalewski, Eurocontrol, Stare Kiejkuty, Wojskowe Sluzby Informacyjne

Timeline Tags: Torture of US Captives

Judge Jay Bybee, who authored or signed a number of memos authorizing torture while the chief of the Justice Department’s Office of Legal Counsel (OLC—see August 1, 2002, August 1, 2002, and December 2003-June 2004), defends his actions to the New York Times. Bybee has been a federal judge for over five years (see February 5, 2003); many civil libertarians and critics of the Bush administration want him to either step down from the bench or face impeachment (see April 21, 2009), and the Justice Department is investigating his professional conduct (see Before April 22, 2009). In recent days, Bybee’s friends and colleagues have reported his “regrets” over the memos (see April 25, 2009). Now, Bybee says while in hindsight he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions, the memos represent “a good-faith analysis of the law” that properly defined the narrow divide between harsh treatment and torture. Bybee’s memos gave a legal framework for the use of illegal interrogation tactics such as waterboarding, sleep deprivation, and enforced isolation. In a statement, Bybee says: “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking al-Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.” He had the support of other administration lawyers, he says. “The legal question was and is difficult. And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.” Bybee’s former colleague, law professor Christopher Blakesley, says he challenged Bybee on one of the memos in 2004, shortly after it became public knowledge. “I asked him how he could sign such an awful thing,” Blakesley recalls. Bybee refused to discuss the matter, and the two men have not spoken since. Blakesley says Bybee “has some basic flaws including being very naïve about leaders. He has too much respect for authority and will avoid a confrontation no matter what.” Some law clerks who worked with Bybee after he left the OLC recall him speaking about his involvement in some matters “so awful, so terrible, so radioactive” that he doubted the administration would ever disclose them. One of the then-clerks, Nina Rabin, says she finds Bybee’s position disturbing because he suggests a lawyer can be divorced from the policies being pursued under his legal rubric. “He definitely offered a view that was sanitized,” she says, “and I thought that was disingenuous in that it removed any responsibility on the part of the lawyer for what was happening.” [New York Times, 4/28/2009]

Entity Tags: New York Times, Bush administration (43), Christopher Blakesley, Jay S. Bybee, US Department of Justice, Nina Rabin, Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives

The US Department of Justice’s Office of Professional Responsibility refuses to refer two former Bush administration officials to authorities for criminal or civil charges regarding their authorizations of the torture of suspected terrorists (see Before April 22, 2009). John C. Yoo and Jay S. Bybee, two senior officials in the DOJ’s Office of Legal Counsel, provided the legal groundwork that allowed American interrogators to use sleep deprivation, waterboarding, and other torture methods against terror suspects (see Late September 2001, January 9, 2002, and August 1, 2002). The report finds that Yoo and Bybee, along with former OLC head Steven Bradbury, exhibited “poor judgment” in their actions. The OPR refuses to make the report’s conclusions public. It is known that senior Justice Department official David Margolis made the decision not to refer Yoo and Bybee for legal sanctions. [Office of Professional Responsibility, US Department of Justice, 7/29/2009 pdf file; Washington Post, 1/31/2010]

Entity Tags: John C. Yoo, Bush administration (43), David Margolis, Jay S. Bybee, Office of Professional Responsibility, US Department of Justice, Steven Bradbury, Office of Legal Counsel (DOJ)

Timeline Tags: Torture of US Captives

WikiLeaks, a non-profit whistleblower group, releases some files on about 750 prisoners held at the US-run prison in Guantanamo, Cuba. This covers all but about 15 of the prisoners who have passed through the prison since it opened in early 2002 (see January 11, 2002). Nearly all of the prisoners were accused of belonging to al-Qaeda or the Taliban, or associated Islamist militant groups. The files were written by US military intelligence officials between the prison’s opening and January 2009. They contain assessments on whether each prisoner should remain in US custody, be imprisoned by another country, or be set free. Most of the prisoners have been released over the years, and no new prisoners have been sent to Guantanamo since 2007, but 172 prisoners remain at Guantanamo in April 2011. Seven news organizations—the New York Times, The Guardian, McClatchy Newspapers, the Washington Post, El Pais, Der Spiegel, and NPR (National Public Radio)—were given early access to the files by WikiLeaks in order to vet and analyze them. Their publication was sped up when the New York Times prepared to publish them after claiming to get copies of them from another unnamed source. The Obama administration immediately condemns the publication of the classified information in the files. [New York Times, 4/24/2011; New Yorker, 4/25/2011]
Files Often Contain Dubious Evidence - Journalists who analyze the files question the accuracy of their prisoner assessments. The New York Times comments that the files “show that the United States has imprisoned hundreds of men for years without trial based on a difficult and strikingly subjective evaluation of who they were, what they had done in the past, and what they might do in the future.” Furthermore, the files “reveal that the analysts sometimes ignored serious flaws in the evidence—for example, that the information came from other detainees whose mental illness made them unreliable. Some assessments quote witnesses who say they saw a detainee at a camp run by al-Qaeda but omit the witnesses’ record of falsehood or misidentification. They include detainees’ admissions without acknowledging other government documents that show the statements were later withdrawn, often attributed to abusive treatment or torture.” [New York Times, 4/24/2011] The Guardian comments that Guantanamo has been “a place that portrayed itself as the ultimate expression of a forensic and rational war run by the most sophisticated power on the planet, with the best intelligence available. The reality was an almost random collection of [prisoners who were] the bad, the accidental, and the irrelevant.” [Guardian, 4/25/2011] McClatchy Newspapers comments: “The world may have thought the US was detaining a band of international terrorists whose questioning would help the hunt for Osama Bin Laden or foil the next 9/11. But [the files] not meant to surface for another 20 years shows that the military’s efforts at Guantanamo often were much less effective than the government has acknowledged. Viewed as a whole, the secret intelligence summaries help explain why in May 2009 President Barack Obama, after ordering his own review of wartime intelligence, called America’s experiment at Guantanamo ‘quite simply a mess.’”
Files Dependant on Dubious Informants - McClatchy further claims that the files were “tremendously dependant on informants—both prison camp snitches repeating what they’d heard from fellow captives and self-described, at times self-aggrandizing, alleged al-Qaeda insiders turned government witnesses who Pentagon records show have since been released.” The information in the files is based on other sources, including intelligence documents and some confessions. [McClatchy Newspapers, 4/24/2011] The New York Times similarly comments that “Guantanamo emerges from the documents as a nest of informants, a closed world where detainees were the main source of allegations against one another and sudden recollections of having spotted a fellow prisoner at an al-Qaeda training camp could curry favor with interrogators.” [New York Times, 4/24/2011]
Files Also Based on Torture and Legally Questionable Methods - The files rarely mention the abuse and torture scandals concerning treatment of US prisoners in Guantanamo, in secret CIA prisons, in other overseas US-run prisons, and in prisons run by some US allies where the use of torture was more widespread. However, there are hints. For instance, one file on an Australian man sent to Guantanamo in 2002 mentions that he confessed while “under extreme duress” and “in the custody of the Egyptian government” to training six of the 9/11 hijackers in martial arts. But despite the apparent seriousness of this accusation, he was released in early 2005. Additionally, important prisoners such as Abu Zubaida held in secret CIA prisons were shown photos of Guantanamo prisoners and asked about them around the time they were subjected to waterboarding and other torture methods. The interrogations of Zubaida, who was waterboarded many times (see May 2003), are cited in over 100 prisoner files. However, his accusations against others have been systematically removed from government filings in court cases in recent years, which would indicate that officials are increasingly doubtful about his reliability and/or the legality of his tortured confessions. Also, many foreign officials were allowed to interrogate some prisoners in Guantanamo, including officials from China, Russia, Saudi Arabia, Jordan, Yemen, Kuwait, Algeria, and Tajikistan. Information in some files comes from these legally questionable interrogation sessions. [McClatchy Newspapers, 4/24/2011; New York Times, 4/24/2011] One well-known case of torture involved Mohamed al-Khatani, the alleged 20th 9/11 hijacker (see December 2001). While being held in Guantanamo, he was interrogated for months with techniques that the senior Bush administration official in charge of bringing Guantanamo prisoners to trial later said legally met the definition of torture (see August 8, 2002-January 15, 2003 and January 14, 2009). His file says, “Although publicly released records allege detainee was subject to harsh interrogation techniques in the early stages of detention,” his confessions “appear to be true and are corroborated in reporting from other sources.” Claims al-Khatani made regarding 16 other Guantanamo prisoners are mentioned in their files without any caveats about the interrogation methods used on him. [New York Times, 4/24/2011]
Some Prisoners Unjustly Held - Some prisoners appear to be clearly innocent, and yet they often were held for years before being released. Some prisoners are still being held even though their files indicate that their interrogators are not even sure of their identities. In some cases, prisoners were held for years not because they were suspected of any crime, but because it was thought they knew useful information. For instance, files show one prisoner was sent to Guantanamo because of what he knew about the secret service of Uzbekistan. [McClatchy Newspapers, 4/24/2011; New York Times, 4/24/2011] In a cruel twist of fate, one man, Jamal al-Harith, appears to have been imprisoned mainly because he had been imprisoned by the Taliban. His file states, “He was expected to have knowledge of Taliban treatment of prisoners and interrogation tactics.” [Guardian, 4/25/2011]
Prisoner Releases Based More on Luck than Evidence - The New York Times claims the determination of which prisoners were released has mostly been a “lottery” that was largely based on which country the prisoner came from. “Most European inmates were sent home, despite grave qualms on the analysts’ part. Saudis went home, even some of the most militant, to enter the rehabilitation program; some would graduate and then join al-Qaeda in the Arabian Peninsula. Yemenis have generally stayed put, even those cleared for release, because of the chaos in their country. Even in clearly mistaken arrests, release could be slow.” [New York Times, 4/24/2011] In 2009, the new Obama administration put together a task force that re-evaluated the 240 prisoners remaining at Guantanamo. However, these more recent assessments remain secret. [New York Times, 4/24/2011]

Entity Tags: WikiLeaks, Jamal al-Harith, US Military, Guantanamo Bay Naval Base, Mohamed al-Khatani, Barack Obama, Abu Zubaida

Timeline Tags: Complete 911 Timeline

Osama bin Laden’s killing by US forces on May 2, 2011 (see May 2, 2011) reignites the debate about the usefulness of the torture techniques used by US intelligence. The debate centers on how US intelligence learned about bin Laden’s location and whether the torture of prisoners helped find him.
Courier Provides the Key Lead - According to Obama administration officials, bin Laden was located through US intelligence agencies’ “patient and detailed intelligence analysis” of “a mosaic of sources,” including evidence garnered from detained inmates at Guantanamo Bay. The first clue to bin Laden’s whereabouts came when US intelligence learned of an al-Qaeda courier that worked with bin Laden, Ibrahim Saeed Ahmed, who used the pseudonym “Abu Ahmed al-Kuwaiti.” Ahmed is one of those killed during the Abbottabad raid. US intelligence had known of Ahmed since 2002, after a Kuwaiti detainee told interrogators about him, and it has taken this long for CIA and other intelligence officers to identify him, locate him, track his communications, and then follow him to the large and well fortified compound in Abbottabad.
Do Bush Administration Techniques Deserve Credit? - Some former Bush administration officials, such as former Defense Secretary Donald Rumsfeld and former Justice Department legal adviser John Yoo, claim that the Bush administration and not the Obama administration deserves the credit for finding bin Laden. According to a report in the Christian Science Monitor, “the former director of the CIA’s Counterterrorism Center, Jose Rodriguez, said the first important leads about Kuwaiti came from alleged 9/11 mastermind Khalid Shaikh Mohammed (KSM) and Abu Faraj al-Libbi, the third-ranking al-Qaeda leader at the time of his capture.” KSM was repeatedly waterboarded (see March 7 - Mid-April, 2003). [Christian Science Monitor, 5/5/2011] Former Attorney General Michael Mukasey states that the path to bin Laden “began with a disclosure from Khalid Shaikh Mohammed, who broke like a dam under the pressure of harsh interrogation techniques that included waterboarding. He loosed a torrent of information—including eventually the nickname of a trusted courier of bin Laden.” [Wall Street Journal, 5/2/2011]
Rebuttal from CIA Director Panetta - However, according to information in a letter CIA Director Leon Panetta sends to Senator John McCain, these assertions are false or misleading. In the letter, Panetta says: “Nearly 10 years of intensive intelligence work led the CIA to conclude that bin Laden was likely hiding at the compound in Abbottabad, Pakistan. There was no one ‘essential and indispensible’ key piece of information that led us to this conclusion. Rather, the intelligence picture was developed via painstaking collection and analysis. Multiple streams of intelligence—including from detainees, but also from multiple other sources—led CIA analysts to conclude that bin Laden was at this compound. Some of the detainees who provided useful information about the facilitator/courier’s role had been subjected to enhanced interrogation techniques. Whether those techniques were the ‘only timely and effective way’ to obtain such information is a matter of debate and cannot be established definitively. What is definitive is that that information was only a part of multiple streams of intelligence that led us to bin Laden. Let me further point out that we first learned about the facilitator/courier’s nom de guerre from a detainee not in CIA custody in 2002. It is also important to note that some detainees who were subjected to enhanced interrogation techniques attempted to provide false or misleading information about the facilitator/courier. These attempts to falsify the facilitator/courier’s role were alerting. In the end, no detainee in CIA custody revealed the facilitator/courier’s full true name or specific whereabouts. This information was discovered through other intelligence means.” [Washington Post, 5/16/2011]
Officials Says Torture Techinques Played No Role - Also, nine US military interrogators and intelligence officials state in an open letter: “The use of waterboarding and other so-called ‘enhanced’ interrogation techniques almost certainly prolonged the hunt for bin Laden and complicated the jobs of professional US interrogators who were trying to develop useful information from unwilling sources like Khalid Sheikh Mohammed. Reports say that Khalid Shaikh Mohammed and Abu Faraq al-Libi did not divulge the nom de guerre of a courier during torture, but rather several months later, when they were questioned by interrogators who did not use abusive techniques.” [Human Rights First, 5/4/2011]

Entity Tags: Jose Rodriguez, Jr., Khalid Shaikh Mohammed, Obama administration, Osama bin Laden, Leon Panetta, John C. Yoo, Michael Mukasey, Central Intelligence Agency, Ibrahim Saeed Ahmed, Abu Faraj al-Libbi, Donald Rumsfeld, Barack Obama, Al-Qaeda, Bush administration (43)

Timeline Tags: Torture of US Captives, Complete 911 Timeline, War in Afghanistan

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