Andy Worthington: Who Ordered the Torture of Abu Zubaydah?

[EFerrari]

Journalist and author of "The Guantanamo Files"
Posted April 24, 2009 | 08:53 AM (EST)

For the defendants of the use of torture by U.S. forces -- still led by former Vice President Dick Cheney -- this has been a rocky few weeks, with the publication, in swift succession, of the leaked report by the International Committee of the Red Cross (PDF), based on interviews with the 14 "high-value detainees" transferred to Guantánamo from secret CIA prisons in September 2006, which concluded that their treatment "constituted torture" (and was accompanied by two detailed articles by Mark Danner for the New York Review of Books), the release, by the Justice Department, of four memos issued by the Office of Legal Counsel (OLC) in 2002 and 2005, which purported to justify the use of torture by the CIA, and the release of a 231-page investigation into detainee abuse conducted by the Senate Armed Services Committee (PDF).

The publication of the full Senate Committee report was delayed for four months, subject to wrangling over proposed redactions, but the Executive Summary, published last December, had already successfully demolished the Bush administration's claims that detainee abuse could be blamed on "a few bad apples," and, instead, blamed it on senior officials who, with the slippery exception of Dick Cheney, included George W. Bush, former defense secretary Donald Rumsfeld, Dick Cheney's chief of staff David Addington, former Pentagon General Counsel William J. Haynes II, former Chairman of the Joint Chiefs of Staff General Richard Myers, former Attorney General Alberto Gonzales, former Justice Department legal adviser John Yoo, former Guantánamo commanders Maj. Gen. Michael Dunlavey and Maj. Gen. Geoffrey Miller, and Lt. Gen. Ricardo Sanchez, the former commander of coalition forces in Iraq.

Much of the fallout from the release of these memos and reports has, understandably, focused on the inadequacy of the legal advice offered to the CIA for its "high-value detainee" program by the OLC, whose lawyers have the unique responsibility of interpreting the law as it relates to the powers of the executive branch, and whose advice, therefore, provided the Bush administration with what it regarded as a "golden shield," which would prevent senior officials from being prosecuted for war crimes. However, if it can be shown that the OLC's advice was not only inadequate, but also tailored to specific requests from senior officials, then it may be that the "golden shield" will turn to dust.

This threat to the "golden shield" probably explains why Dick Cheney's scaremongering has been shriller than usual in the last few weeks, but what has largely been overlooked to date is another question that poses even weightier challenges for the former administration: if the use of torture techniques on Abu Zubaydah, the first supposedly significant "high-value detainee" captured by the US (on March 28, 2002), was authorized by two OLC memos issued on August 1, 2002, then who authorized the torture to which he was subjected in the 18 weeks between his capture and the moment that Jay S. Bybee, the head of the OLC, added his signature to the OLC memos?

http://www.huffingtonpost.com/andy-worthington/who-authorized-the-tortur_b_190914.html

(Be sure to digg if you can, leave a comment and send out the link! Andy has great hot links in this article.)

digg it: http://digg.com/political_opinion/Who_Authorized_The_Torture_of_Abu_Zubaydah

[EFerrari]

1. So, did CIA think they had a green light after 9/17/2001?

"Tracking the torture trail

To understand how torture came to be used before it was officially approved, we need to return to the New York Times article of September 2006, which explained how, according to accounts by three former intelligence officials, the CIA "understood that the legal foundation for its role had been spelled out in a sweeping classified directive" signed by President Bush on September 17, 2001, which authorized the agency "to capture, detain and interrogate terrorism suspects."

Significantly, this "memorandum of notification" did not spell out specific guidelines for interrogations, but as later research, and the latest reports have confirmed, the directive led to focused efforts by the CIA, and by William J. Haynes II, the Pentagon's General Counsel (and a protégé of Dick Cheney), to contact foreign governments for advice on harsh interrogation techniques, and to begin a relationship with a number of individuals involved in the Joint Personnel Recovery Program (JPRA), the body responsible for administering the SERE program (Survival, Evasion, Resistance and Escape), which is taught at U.S. military schools."

[Spazito]

2. I would say yes....

but it was done with a 'wink and a nod' with NO corresponding paper trail that could be used in an investigation. As the author in this article writes:

"...but we do know, from James Risen's book State of War, that when CIA director George Tenet told the President that Zubaydah had been put on pain medication to deal with the injuries he sustained during capture, Bush asked Tenet, "Who authorized putting him on pain medication?" which prompted Risen to wonder whether the President was "implicitly encouraging" Tenet to order the harsh treatment of a prisoner "without the paper trail that would have come from a written presidential authorization."

The focus of the Bush Administration was two-fold, imo: 1)Send a clear message that any and ALL methods were to be used on the detainees and 2)the message was to be given in such a manner as to allow plausible deniability if there was ever an investigation into the methods.

[EFerrari]

3. This is the first time I even heard about that 9/17 directive.

It raises the question, what was happening the Spring and Summer that resulted in the OLC memos, doesn't it? I believe CIA didn't use waterboarding until after that but it's hard to believe they went through all of that just for waterboarding when they were already torturing in other ways.

Why do they want us to overlook what happened before Aug. 2002 -- another way to put it? Maybe this has already been covered and I've just forgotten.

[Spazito]

4. The attempt to bury what happened before Aug. 2002 is because...

they had NO legal opinions from the OLC behind which they could hide. It is their want to brush past the torture methods used prior to the torture memos because, they too, are considered torture under Title 18 of the United States Code:

Section 2340. Definitions

As used in this chapter -
(1) "torture" means an act committed by a person acting under
the color of law specifically intended to inflict severe physical
or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions) upon another person within his
custody or physical control;
(2) "severe mental pain or suffering" means the prolonged
mental harm caused by or resulting from -
(A) the intentional infliction or threatened infliction of
severe physical pain or suffering;
(B) the administration or application, or threatened
administration or application, of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be
subjected to death, severe physical pain or suffering, or the
administration or application of mind-altering substances or
other procedures calculated to disrupt profoundly the senses or
personality; and

(3) "United States" includes all areas under the jurisdiction
of the United States including any of the places described in
sections 5 and 7 of this title and section 46501(2) of title 49.


http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/113c/sections/section_2340.html


Waterboarding was not done until after they were provided with cover, as they saw it anyway, by the torture memos because it is recognized as being at the extreme end of torture methods and has been deemed torture by the US as late as 1983 when the sheriff and his deputies were convicted and sent to prison for using it.

[EFerrari]

6. Okay, but the question is, why Summer of 2002? Why not Spring

or even, the preceding Winter? They waited nearly a whole year to get an opinion. What triggered that?

[Spazito]

8. There was an urgent (in the eyes of the Bush administration) need to...

have "actionable intelligence" that Saddam was connected to 9/11 through al-Qaeda in order to provide 'proof' of the need to attack Iraq. We need to remember the plans to attack Iraq were already under way by the summer of 2002 and, also, the overall plan to "re-make" the Middle East with Iraq being step one.

After Iraq
The plan to remake the Middle East.

http://www.newyorker.com/archive/2003/02/17/030217fa_fact

[EFerrari]

9. That makes sense in a way. But they were fabricating everything else.

It's hard to believe they seriously believed they could get their fabrications validated by information obtained under torture.

[Spazito]

10. They were, in effect, looking for 'false confessions' to buttress their...

false accusation that Saddam was involved in 9/11 and there would have been no questions raised about validity at the time because their torture techniques had not come to light and everything was "protected" by the National Security claim. They could not wait for the torture memos to be completed, again, because the 'window' for selling the Iraq war to the American public was limited.

They deliberately used SERE torture techniques BECAUSE they knew they were successful in eliciting false confessions from US soldiers in Korea, Vietnam.

[Supersedeas]

5. the golden shield and actions take AFTER OLC rescinded the memos

see p.146 of the Senate Report

[EFerrari]

7. I don't think I understand what you just said.

:)

[Supersedeas]

11. there may have been actions taken prior to the Memos AND there were also actions taken

after the Memos were rescinded by the new OLC chief, Jack Goldsmith.

Take a look at p.146 of the Senate Report:
http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf


Both suggest that the golden shield provided by those particular memos was mostly a ruse. They were determined to use these tactics and were going to find some lawyer somewhere to 'provide' legal parsing as an excuse for it. The memos themselves didn't mean as much as having some lawyer somewhere say that it was okay with him or her.

And I still may not be very clear here either. Apologies in advance.

[EFerrari]

12. Now I get it. Yes, that's right. Before AND after. n/t