Torture First, Justify Afterwards

Yoo acted as an advocate for administration policy and massaged his legal advice to fit the wishes of his Bush administration superiors, rather than carefully analyzing the law as an independent-minded lawyer, according to these sources

By Jason Leopold.
First Published 2009-09-16,
Last Updated 2009-09-16 11:10:00
Courtesy Of Middle-East-Online

The Bush administration gave its initial clearance for CIA interrogators to brutalize an al-Qaeda “high-value detainee” through verbal guidance and didn’t follow up with a formal legal opinion until “months later,” the CIA’s former inspector general said.

In an interview with the German magazine Der Spiegel, ex-CIA Inspector General John Helgerson confirmed what has long been suspected, that the abusive interrogation of al-Qaeda operative Abu Zubaydah in 2002 began well before the Justice Department’s Office of Legal Counsel cobbled together a controversial legal opinion justifying acts that are commonly regarded as torture.

Der Spiegel’s reporter posed a question to Helgerson that assumed Zubaydah’s torturous interrogation had predated the Aug. 1, 2002, legal memo from OLC attorneys John Yoo and Jay Bybee. "Did the lawyer who signed the memorandum simply authorize a technique months after this technique had already been applied?" reporter Britta Sandberg asked Helgerson.

Helgerson told Sandberg that "basically" her assumption was correct and added, "There was some legal advice given orally to the CIA that had then been followed up by memorandums months later."

Though human rights groups had long speculated that the torture of Zubaydah began prior to the Yoo-Bybee memo, some experts were surprised by Helgerson’s use of the word “months,” suggesting the abusive interrogations may have started soon after a wounded Zubaydah was captured in Pakistan on March 28, 2002, and then flown to a CIA “black site” in Thailand.

This altered chronology also undercuts assertions by defenders of the interrogation program, the likes of Vice President Dick Cheney, that the policy was carefully crafted and implemented only after legal issues were carefully weighed by the OLC, which advises presidents about interpreting laws, in this case those that prohibit torture.

Exactly what the OLC’s oral legal advice was – and whether it was inappropriately influenced by White House political desires – may be answered by a still classified report prepared by the Justice Department's Office of Professional Responsibility, an internal ethics unit, according to Justice Department sources who have been briefed on the contents of the report.

The watchdog unit has spent five years probing whether Yoo, Bybee and another OLC lawyer Steven Bradbury provided poor legal advice in authorizing CIA interrogators to use the near-drowning of waterboarding and other interrogation methods to glean information about terrorist plots from prisoners.

The report's findings are said to conclude that Yoo acted as an advocate for administration policy and massaged his legal advice to fit the wishes of his Bush administration superiors, rather than carefully analyzing the law as an independent-minded lawyer, according to these sources.

Clues to a Chronology

Early clues about when torture was begun on Zubaydah surfaced earlier this year, in a Freedom of Information Act lawsuit the American Civil Liberties Union filed against the CIA in connection with the agency's destruction of 92 interrogation videotapes in 2005.

In court documents, the CIA disclosed that it began videotaping interrogations of Zubaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 attack on the USS Cole, in April 2002, four months before Yoo and Bybee drafted their torture memo.

The agency also acknowledged that 12 of those videotapes showed the two detainees being subjected to harsh techniques. However, the agency refused to disclose documents to the ACLU that would have indicated whether the torture took place prior to the Aug. 1, 2002, legal memo.

Then, in May a newly declassified timeline released by the Senate Select Committee on Intelligence fleshed out the details a bit more.

According to the Intelligence Committee, in April 2002, while Zubaydah was still hospitalized and recovering from gunshot wounds, the CIA’s Office of General Counsel began to discuss with John Bellinger, legal adviser to the National Security Council, and the OLC, about “the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation.”

The CIA believed that as early as April 2002, just a few weeks after he was captured, Zubaydah was withholding “imminent threat information during the initial interrogation sessions” – a position that drew objections from FBI interrogators who believed they had successfully obtained actionable intelligence from Zubaydah through rapport-building and other non-violent techniques.

It was around this time, in April and May of 2002, that meetings were arranged involving high-ranking Bush administration officials, including then White House Counsel Alberto Gonzales, Michael Chertoff, who at the time was the head of the Justice Department’s Criminal Division, and National Security Adviser Condoleezza Rice to discuss an “alternative” set of interrogation methods, including waterboarding.

“The CIA’s Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques,” the Intelligence Committee timeline states.

For his part, Zubaydah told the International Committee of the Red Cross that his treatment grew nastier as his detention progressed, although he offered no specific timeline. He did recall that CIA interrogators said he was their first subject, “so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.”

Just a month after Zubaydah's capture, in its April 27, 2002, issue, Newsweek published a story about the "imminent threat information" that he supposedly gave up to his interrogators. The article, "How Good Is Abu Zubaydah's Information?" said the Bush administration "issued two domestic terrorism warnings" based on the information Zubaydah provided to "US interrogators.”

But none of the alleged threats, including plots to attack banks in the Northeast or US shopping malls, materialized or were ever shown to have been anything approaching an actual operation.

Information Doubted

In an interview, Jack Cloonan, a former FBI special agent assigned to the agency's elite Bin Laden unit, said Abu Zubaydah "wasn't privy to a lot of what I would consider to be a lot of really good operational details," getting most of his information second-hand.

“We thought he would be best described as a logistical officer who managed a series of safe houses and was a great travel agent,” Cloonan said. “But to cast him and describe him as the al-Qaeda emir or leader for the subcontinent or worse to that effect I think was a mistake. … Based on his age and ethnicity, [he] would [n]ever be brought into the inner circle of al-Qaeda.”

There was also the question of Zubaydah’s personality. “My partner had a chance to look at a lot of Abu Zubaydah's diaries, poems and other things that he has written and he said that after reading this you just come away with the feeling that this is a guy who can't be trusted or being given huge amounts of responsibility,” Cloonan said. “He just seemed mentally unstable. …

“I'm not at all suggesting that Abu Zubaydah wasn't valuable. Anytime you get one of these guys and get their cooperation I think is a win. You can get information that's really valuable from people who are further down the food chain. It's how you get the information and whether you're getting real cooperation or simply compliance because somebody's either waterboarding you or gets you on sleep deprivation.

“We know and the science tells us that people cannot recall details accurately, they can't look at pictures, they will make things up if deprived of the bare essentials of life over the course of time. I don't understand how you could sleep deprive somebody for 11 days and now expect this person to provide you with accurate information.

“Even if they wanted to they're probably so debilitated at this point they need to be rehabilitated before they ever give you anything."

Cloonan's description of Zubaydah backs up what author Ron Suskind reported in his book The One Percent Doctrine.

Suskind said Zubaydah was not the “high-value detainee” the CIA had claimed. Rather, Zubaydah was a minor player in the al-Qaeda organization, handling travel for associates and their families. However, George W. “Bush was fixated on how to get Zubaydah to tell us the truth,” Suskind wrote, adding that Bush asked one CIA briefer, “Do some of these harsh methods really work?”

And after Zubaydah was subjected to coercive interrogation techniques, including waterboarding, he spoke about a wide range of plots against a number of US targets, such as shopping malls, the Brooklyn Bridge and the Statue of Liberty. Yet, Suskind wrote, the information Zubaydah provided under duress was not credible.

According to Suskind, Zubaydah’s captors soon discovered that their prisoner was mentally ill and knew nothing about terrorist operations or impending plots. That realization was “echoed at the top of CIA and was, of course, briefed to the President and Vice President,” Suskind wrote.

Hyping the Case

Still, in public statements, Bush portrayed Zubaydah as “one of the top operatives plotting and planning death and destruction on the United States” and added: “So, the CIA used an alternative set of procedures” to get Zubaydah to talk.

The President did not want to “lose face” because he had stated his importance publicly, Suskind wrote.

In the book, State of War, New York Times reporter James Risen wrote that days after Zubaydah was captured, CIA Director George Tenet went to the White House to provide Bush with a daily intelligence briefing as well as details of "the Zubaydah case."

"Bush asked Tenet what information the CIA was getting out of Zubaydah," Risen wrote. "Tenet responded that they weren't getting anything yet, because Abu Zubdaydah had been so badly wounded that he was heavily medicated. He was too groggy from painkillers to talk coherently. Bush turned to Tenet and asked: 'Who authorized putting him on pain medication?'"

Risen's source for the information told him it's possible that this was simply "jocular banter" between Bush and Tenet. But Risen wrote that it's also a possibility that the "comment meant something more."

"Was the president of the United States implicitly encouraging the director of Central Intelligence to order the harsh treatment of a prisoner? If so, this episode offers the most direct link yet between Bush and the harsh treatment of prisoners by both the CIA and the US military," Risen wrote. "If Bush made the comment in order to push the CIA to get tough with Abu Zubaydah, he was doing so indirectly, without the paper trail that would have come from a written presidential authorization."

CIA documents from a Combatant Status Review Tribunal in March 2007 revealed that Zubaydah's torturers eventually apologized to him and said they concluded he was not a top al-Qaeda lieutenant as the Bush administration and intelligence officials had claimed.

"They told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter," Zubaydah said during his tribunal hearing.

Jason Leopold is an investigative reporter and the author of News Junkie. His website is pubrecord.org.