The ways in which the Justice Department memos—written in part by John Yoo, now a Law Professor at Berkeley, and Jay Bybee, now a federal appeals court judge—handle the legalization of torture I shall leave to another day—except to quote the succinct summary of their colleague Jack Goldsmith, who has now written a book about the process:
“[V]iolent acts aren't necessarily torture; if you do torture, you probably have a defense; and even if you don't have a defense, the torture law doesn't apply if you act under color of presidential authority. CIA interrogators and their supervisors, under pressure to get information about the next attack, viewed the opinion as a 'golden shield,' as one CIA official later called it, that provided enormous comfort.”
The Senate Committee report confirms much that we already knew and adds a great deal that we did not. It includes quite a few stories of lower-level officials—especially military lawyers—who tried to introduce some sanity into the proceedings, as well as instances of higher-ups who caved into Administration pressure and managed to forget that they had done so by the time they talked to the Committee. It is, however, only part of the story, because it has very little to say about CIA interrogations, which fell outside the committee’s bailiwick. Indeed, many passages apparently referring to CIA activities are still redacted—a practice with which I am very familiar from documents about earlier eras.
The summary of the report describes how all this began.
“On February 7,2002, President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees (designated as '’unlawful combatants’ in the memorandum) were not entitled to POW status or the legal protections afforded by the Third Geneva Convention. 11 While the President found that Common Article 3 (requiring humane treatment) did not apply to either al Qaeda or Taliban detainees, his order stated that 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 the Geneva Conventions.’
“The President's policy statement was directed at the United States Armed Forces.
The Committee is unaware of a similar Presidential policy statement governing other agencies' treatment of detainees. A February 2, 2002 State Department memo reflected that Administration lawyers involved in the discussion about the application of the Third Geneva Convention to the Taliban and al Qaeda had ‘all agree[d] that the CIA is bound by the same legal restrictions as the U.S. military. . .” The memo also stated, however, that ‘CIA lawyers believe[d] that, to the extent that the [Third Geneva Convention's] protections do not apply as a matter of law but those protections are applied as a matter of policy’ it is desirable to circumscribe that policy so as to limit its application to the CIA,,1 According to the memo,‘other Administration lawyers involved did not disagree with or object to the CIA's view.’
Months later, in an October 2, 2002 meeting with DoD officials at Guantanamo Bay, Chief Counsel to the CIA's CounterTerrorist Center (CTC) Jonathan Fredman reportedly stated that the ‘CIA rallied’ for the Conventions not to apply.”
The CIA, of course, successfully managed to get itself exempted from what minimal protection the President’s memorandum provided. Meanwhile, the Defense Department began to evolve its thinking. Under pressure from Washington to get better intelligence from detainees (of which more later), the commanders at Guantanamo sought help from the Joint Personal Recovery Agency (JPRA) at Fort Bragg, which for years has provided Survival, Evasion, Resistance and Escape (SERE) training to prospective pilots. Their training program was not designed to elicit information from captives, but rather to teach pilots to resist harsh interrogation tactics, specifically those which had led captured Americans to sign false confessions during the Korean war. These include sleep deprivation, nakedness, shackling, rough physical handling—and waterboarding. The latter was however kept within strict limits; no more than a pint of water could be used on any trainee. CIA interrogators later used as much as a gallon. During this process, several members of JPRA tried to get through to their superiors and clients at GTMO that they had no experience in interrogating prisoners, that history showed these techniques were at least as likely to elicit false as true information, and that they were not competent to administer them to hostile subjects. (Others, less heroic, retired and apparently started a private contracting firm specializing in interrogations—with what result the Committee did not report.) Yet not only did the use of such techniques go ahead at Guantanamo, but some of the highest legal officials of the Justice Department, including Counsel Joe Haynes and a deputy whom he ordered to contact JPRA, asked for help in developing a list of approved interrogation techniques as well during the summer of 2002. Although Haynes refused to be specific he did not deny discussing interrogation techniques with then-Presidential Counsel Alberto Gonzales, Vice Presidential staffer David Addington, and Jay Bybee and John Yoo of the Justice Department’s Office of Legal Council. The next six months proved critical to the program—and raise the gravest questions about why it was undertaken in the first place.
To begin with, the Senate report makes clear beyond any doubt, the techniques that had been adopted at GTMO were exported by the Army to interrogation centers in Iraq and Afghanistan, including Abu Ghraib. President Bush’s statements that the abuses at Abu Ghraib were the work of a few junior personnel—the statements he relied upon to win re-election in 2004—are exposed as a complete falsehood. Given that several enlisted personnel were prosecuted for those abuses, and at least one served time, this is one instance, it seems to me, where the case for prosecution of senior officials is very strong.
Secondly, during the summer of 2002, the government apparently managed—or so it thought—to disrupt two plots. Jose Padilla, the American citizen suspected of planning to set off a “dirty bomb,” was arrested on May 8, 2002, and a reputed plot to crash airliners into Los Angeles targets was reportedly disrupted that summer. Most (though not all) of the detainees had been captured late in 2001 or early in 2002 in Afghanistan, and it seems hard to believe that anyone could have thought they still had important information about plots yet to take place, all the more so since their Al Queda colleagues knew they were in custody. But this was also the year in which the Administration—by the middle of the year, as the Downing Street memo shows—had decided to invade Iraq, partly because so many Administration figures—including Vice President Cheney and Assistant Secretary of Defense Feith—were convinced that Saddam Hussein had been behind the 9/11 attack. And indeed, sworn testimony suggests that attempts to prove that false assumption played an important role in the adoption of coercive interrogation tactics. The Senate committee report reprints testimony to the Army’s Inspector General from a Major Burney, who worked at Guantanamo:
“[T]his is my opinion, even though they were giving information and some of it was useful, while we were there a large part of the time we were focused on trying to establish a link between AI Qaeda and Iraq and we were not being successful in establishing a link between AI Qaeda and Iraq. The more frustrated people got in not being able to establish this link .. , there was more and more pressure to resort to measures that might produce more immediate results.”
The report continues:
“GTMO Interrogation Control Element (ICE) Chief, David Becker told the Committee that at one point interrogation personnel were required to question [large redaction] but that he was unaware of the source of that requirement. Others involved in JTF-170 interrogation operations agreed that there was pressure on interrogation personnel to produce intelligence, but did not recall pressure to identify links between Iraq and al Qaeda.
“Mr. Becker also told the Committee that, on several occasions, MG Dunlavey had advised him that the office of Deputy Secretary of Defense Wolfowitz had called to express concerns about the insufficient intelligence production at GTMO. Mr. Becker recalled MG Dunlavey telling him after one of these calls, that the Deputy Secretary himself said that GTMO should use more aggressive interrogation techniques. MG Dunlavey told the Committee that he could not recall ever having a phone call with Deputy Secretary Wolfowitz or his staff.” Dunleavy did not recall a lot of things, like putting pressure on his MAJ of military intel above.”
In September of 2002, the month in which Dick Cheney began publicly beating the drum for war in Iraq, a large group of the most dedicated, ideologically committed second-level officials of the Bush Administration became directly involved in what was happening at GTMO. “On September 25, 2002, less than a week after GTMO personnel returned from the training at Fort Bragg, Counsel to the President Alberto Gonzales, Counsel to the Vice President David Addington, DoD General Counsel Jim Haynes, Acting CIA General Counsel John Rizzo, Assistant Attorney General of the Criminal Division [and future Homeland Security director] Michael Chertoff, and other senior administration officials traveled to Guantanamo Bay and were briefed on future plans for detention facilities as well as on intelligence successes, failures, and problems at the JTF.” [One would be interested to know who the “other senior administration officials were.] Jim Haynes apparently agreed with Major General Dunlavey that Dunlavey needed more authority to order more interrogations. They began drawing up a list of new permissible interrogation tactics, most of which is still classified.
In November 2002, Dunlavey was replaced by Major General Jeffrey Miller. Miller initially testified to the committee that he spoke to Undersecretary of Defense Paul Wolfowitz on the phone once a week—later he said he had misspoken and only briefed Wolfowitz once every three months. By that time the Congressional elections, in which the Republicans regained control of the Senate, were over and the push for war was on full speed ahead.
Meanwhile, three “high-value” detainees—two of whom did not reach Guantanamo until years later—had been the subject of particular interest. Exactly what interrogators did to them, and what information they received in return, now lies at the heart of the escalating public controversy—stimulated by Dick Cheney himself—over whether waterboarding and other extreme measures worked. The three were Mohammed El Khatani, Abu Zubaydah, and Khalid Sheikh Mohammed.
Mohammed El Khatani was captured in Pakistan and turned over to American authorities in December 2001. Suspected of being the “twentieth hijacker” in the original 9/11 plan, he was questioned by the FBI from late July through late September 2002, using traditional interrogation methods which stress building a rapport with the prisoner and earning his confidence. Then, for reasons that are not entirely clear, GTMO secured custody of him and wrote up an interrogation plan with which the FBI did not want to be associated. Major General Dunlavey told the FBI that his own JAG had approved the plan, but she herself denied that. In an October 8,2002 email to his colleague, an FBI agent described Joint Task Force 170’s interrogation of Khatani, stating that DoD had tried "sleep deprivation," a dog [according to a Lt. Col. Phifer], "loud music, bright lights, and 'body placement discomfort,' all with negative results" and that DoD interrogators now planned to stop the interrogation. Interrogator David Becker told the Committee that the interrogation plan did not work and that JTF-170 ceased the interrogation after approximately a week and moved Khatani back to the Navy brig. “Another FBI agent reflected upon the failed interrogation in his own email of October 8, 2002,” the report continues, “observing that "I think we should consider leaving him alone, let him get healthy again. and do something 'different. "
Abu Zubaydah was captured after a gunfight at a safe house in Pakistan in 2002, after which he was eventually transferred to a CIA safe house in Thailand and interrogated. The CIA’s claims with respect to what he told them have surfaced in a Justice Department memo of May 30, 2005, which reads:
“Interrogations of Zubaydah—again, once enhanced techniques were employed—furnished detailed information regarding Al Qaeda’s ‘organizational structure, key operatives, and modus operandi’ and identified K[halid]S[heikh]M[ohammed] as the mastermind of the September 11 attacks. . . .You have informed us that Zubaydah also ‘provided significant information on two operatives [including] Jose Padilla[,] who planned to build and detonate a ‘dirty bomb’ in the Washington DC area.’. . .Zubaydah and KSM have also supplied important information about al-Zarqawi and his network.” [italics mine.]
Of these pieces of information, the only one that would qualify as a “ticking bomb” scenario, that is, an instance in which information gained through torture prevented a specific attack, would seem to be the reference to the dirty bomb. Now the wording with respect to Jose Padilla (in which the brackets are in the original) is rather confusing, and seems designed to avoid stating specifically either that Abu Zubaydah’s information had led to Padilla’s arrest, and perhaps even to avoid stating with certainty that Zubaydah had specifically given Padilla’s name. But chronology introduces a huge problem into this scenario. Jose Padilla was arrested on May 8, 2002, a maximum of two months after the arrest of Zubaydah, who had to recover from his wounds before he could be interrogated at all.
Padilla was already in custody, then, when Jay Bybee wrote a still-secret legal opinion on August 2, 2002, authorizing the use of specific interrogation techniques against Zubaydah. The Justice Department refused to release that memo to the Senate Committee. However, according to another Justice Department memo quoted here [I have searched through these memos but haven’t been able to locate this text myself,] Zubaydah was waterboarded at least 83 times during August 2002, that is, right after Bybee wrote that memo. Those interrogations could hardly have been designed to prevent Padilla from doing something since he was already in custody. [Former FBI Agent Ali Soufan has now stated that Zubaydah identified Padilla as a potential terrorist in response to traditional, non-violent interrogation methods during the first half of the year.] They do however immediately precede the Administration’s unveiling of the ad campaign for the Iraq war (as Andrew Card put it, you don’t introduce new products in August—but you can write your copy.)
The case of Khalid Sheikh Mohammed (KSM) raises similar problems. The mastermind of 9/11 was captured on March 1, 2003. Regarding his contributions, the Justice Department memo of 2005 states, “You [the CIA] have informed us that the interrogation of KSM—once enhanced techniques were employed—led to the discovery of a KSM plot, the ‘Second Wave,’ ‘to use East Asian operatives to crash a hijacked airliner into’ a building in Los Angeles. You have informed us that information obtained from KSM also led to the capture of Riduan bin Isomuddin, better known as Hambali, and the discovery of the Guraba Cell, a 17-member Jemaah Islamiyah cell tasked with executing the ‘Second Wave.’” The memo continues that KSM had led the CIA to one Malid Khan, who in turn led them to one Zubair, who was captured and gave information leading to Hambali’s arrest. This passage has now become a right-wing mantra to the effect that the waterboarding of KSM “saved Los Angeles.” (I heard Oliver North say this to Sean Hannity last week.) But once again the chronology raises huge problems. According to President Bush himself, that plot was disrupted in early 2002. According to the New York Times, KSM was waterboarded 183 times in March 2003—months after the Los Angeles plot (which would probably have been impossible to carry out anyway under post 9/11 conditions) had been broken up, but just weeks before the actual invasion of Iraq.
For more than three decades as a practicing historian I have warned against the argument that person X or government X would, or would not, have taken a certain act for a certain reason, because that would or would not “have made sense.” In fact both people and governments constantly do things that make sense all the time. What evidence we have, however—and more is appearing almost every day—is that torture, including waterboarding, never provided much critical information and never actually saved American lives. On the other hand, we have direct testimony that the Guantanamo interrogators were under great pressure to link 9/11 to Iraq. The biggest orgy of waterboarding that we know about took place just before the run-up to the war and just before the invasion itself. And lastly, there is the very troubling fact that the tapes of CIA interrogations (though not, perhaps, the transcripts) were destroyed. Undoubtedly such tapes would have been a terrible embarrassment and humiliation to the nation, but they would also have shown beyond question exactly what it was that CIA interrogators (who have NOT testified about any pressures they may have been under) were trying to find out. Perhaps, indeed, the Bush Administration was not so illogical as we have thought. Perhaps they were using torture for the only actual purpose it serves: to try to get captives to tell interrogators exactly what they wanted to hear. That is something we are entitled to find out.
[Tuesday AM ps: This remarkable story from theTimes this morning how one interview by CIA man John Kiriakou in early 2007 turned the waterboarding debate around, when he said that Abu Zubaydah cracked under waterboarding after 30 seconds. We know now that he was subjected to it 82 times. Kiriakou, the origins of whose story should now be investigated (he admits he wasn't an interrogator himself), became a media sensation and is still quoted almost daily by right-wing talk show hosts and columnists. As I discovered writing The Road to Dallas, when you give an Agency the right to keep its operations secret, it will exploit that right to look as good as possible.