Yes.
It emerged last week that in July 2002, then-National Security Adviser Condoleezza Rice had authorized waterboarding of al-Zubayda, a Palestinian-born suspected member of al-Qayda captured in Pakistan in March 2002 — who then may have implicated “the mastermind of 9/11” under torture, while recalling something he had watched on Al-Jazeera television.
Then-Vice President Dick Cheney was also apparently involved, while “then-Defense Secretary Donald H. Rumsfeld and then-Secretary of State Colin Powell were largely left out of the decision-making process” according to a report from Washington by the McClatchy newspaper group that looked into a “narrative” to explain its memos (dated 2002-2005) to the CIA authorizing such techniques, and posted Wednesday on the Senate Intelligence Committee’s Web site.
The McClatchy report stated that “Cheney couldn’t be reached for comment. Rice, through an aide, declined to comment”. The report can be reached in full here.
According to a report from the AP late on Saturday, “After Rice provided the critical authorization, formal legal approval for Zubayda’s waterboarding came a few days later in an Aug. 1, 2002, Justice Department memo … Days after that, the waterboarding of Abu Zubayda began. He would undergo the technique, now deemed torture by Attorney General Eric Holder, 83 times that month“.
The Pentagon has photos of the interrogation sessions in which tactics that appear to be torture were used. The Washington Post reported that some of the photos will apparently be released by the end of May (see below for more).
Another story in the Washington Post reported separately that an attachment to a memo sent to the CIA described “the application of extreme duress as ‘torture’ in a July 2002 document sent to the Pentagon’s chief lawyer and warned that it would produce ‘unreliable information’. It said that “The unintended consequence of a U.S. policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured U.S. personnel”. The memo and its attachment (titled “Operational Issues Pertaining to the Use of Physical/Psychological Coercion in Interrogation”) was written by the military’s Joint Personnel Recovery Agency (JPRA), and the Washington Post said it had obtained the full attachment, after parts of the attachment had been quoted in a Senate report on harsh interrogation released this week. The newspaper said that “JPRA ran the military program known as Survival, Evasion, Resistance and Escape (SERE), which trains pilots and others to resist hostile questioning. The cautionary attachment was forwarded to the Pentagon’s Office of the General Counsel as the administration finalized the legal underpinnings of a CIA interrogation program that would sanction the use of 10 forms of coercion, including waterboarding, a technique that simulates drowning”.
Despite this warning, the Washington Post Story says that the Aug. 1 memo written to the CIA afterwards by the Office of Legal Affairs (OLA), concerning the interrogation of Abu Zubaida, draws from the JPRA’s memo on psychological effects to conclude that while waterboarding constituted ‘a threat of imminent death’, it did not cause ‘prolonged mental harm’. Therefore, the Aug. 1 memo concluded, waterboarding “would not constitute torture within the meaning of the statute.” This WPost story can be read in full here
The Associated Press story mentioned earlier (above) says that the revelations have “ignited a backstage battle between former Bush officials over a crucial May 2002 meeting that paved the way for use of waterboarding on a suspected al-Qaida leader. The fracas over who was responsible for authorizing use of the simulated drowning tactic and other harsh techniques on captured suspect Abu Zubayda is raising new questions about that 2002 decision and follow-up moves that allowed the CIA to use the now-banned techniques. Some former Bush officials argue that they were not properly warned by CIA officials about the potential perils of the severe methods, while others insist there were explicit cautions. A former senior Bush administration official familiar with the deliberations told The Associated Press that during a meeting of Bush senior officials in May 2002, then-CIA director George Tenet, backed by agency lawyers and CIA officers, reassured former NSC director Condoleezza Rice, then-Attorney General John Ashcroft and others that waterboarding and other harsh techniques were both safe and necessary. The former official, who spoke on condition of anonymity because of the issue’s continuing sensitivity, said Tenet and other CIA officials did not mention the techniques’ potential legal and physical dangers.
Tenet was not available for comment Saturday. Rice and other former Bush administration principals involved in or aware of the May 2002 meeting have not responded to efforts by the AP to obtain comment in recent days. Rice told the Senate Armed Services Committee last fall that she and other senior Bush officials were told that the harsh interrogation methods would not cause significant psychological or physical harm. But a former senior intelligence official also aware of the internal 2002 discussions disputed that account. He dismissed the charge that Tenet had presented the harsh methods to the NSC as the only possible option. The intelligence official, who also spoke with anonymity because of the sensitivity of the situation, said the CIA had insisted on having the program legally reviewed to be sure it comported both with U.S. law and policy. The intelligence official noted that senior policymakers and lawyers were responsible for fully evaluating the potential impacts of the CIA proposal. A Senate Armed Service Committee report released last week said that along with Tenet, Rice and Ashcroft, others attending the critical May 2002 session were then-White House counsel Alberto Gonzales, former NSC deputy adviser Stephen Hadley and John Bellinger, then-legal adviser to the NSC”.
The AP story provides this new information: “Almost simultaneously to the NSC’s decision to approve harsh interrogations, the Joint Personnel Recovery Agency had sent a memo to the Pentagon’s general counsel’s office outlining the methods that would come to be used in CIA interrogations, including waterboarding, slamming detainees into walls, stress positions, and dousing detainees with cold water. The memo said the methods ‘may be very effective in inducing learned helplessness and ‘breaking’ detainees’ ‘will to resist’.’ But in a separate attachment, the training officials told Pentagon lawyers that harsh physical techniques could backfire by making prisoners more resistant. They also said that if the use physical methods on prisoners were discovered, the public and political backlash would be ‘intolerable’. The attachments were included in the Senate Armed Services Committee’s release of documents and in a fuller copy obtained Saturday by the AP. They also warned that harsh techniques cast into doubt the reliability of the information gleaned during the interrogation. ‘A subject in extreme pain may provide an answer, any answer or many answers in order to get the pain to stop’, the training officials said in their memo. The attachment also discussed the fact that using extreme physical and psychological coercion — with the word extreme underlined to differentiate from the methods used in survival training — would constitute torture. It is unclear whether Rice, Tenet or others on the NSC or at the CIA saw that memo and its warnings against using extreme methods”.
The AP story added that “House Speaker Nancy Pelosi, who was the top Democrat on the House Intelligence Committee in September 2002, said she was not informed back then that the CIA methods had been used on prisoners. But former CIA Director Porter Goss disputed that Saturday in an opinion piece in the Washington Post. Goss was at the time chairman of the House Intelligence Committee and received the same briefings. Goss wrote he was ‘slack-jawed to read that members claim to have not understood that the techniques on which they were briefed were to actually be employed; or that specific techniques such as ‘waterboarding’ were never mentioned’.” This AP report can be read in full here .
Meanwhile, the UN Human Rights Council’s Special Rapportur against Torture, Manfred Nowak of Poland who is a law profesor in Austria, has said that “The U.S. is obligated by a United Nations convention to prosecute Bush administration lawyers who allegedly drafted policies that approved the use of harsh interrogation tactics against terrorism suspects … [Nowak said that ] Washington is obligated under the U.N. Convention against Torture to prosecute U.S. Justice Department officials who wrote memos that defined torture in the narrowest way in order to justify and legitimize it, and who assured CIA officials that their use of questionable tactics was legal. ‘That’s exactly what I call complicity or participation’ to torture as defined by the convention, Nowak said at a news conference [in Vienna on Friday]. ‘At that time, every reasonable person would know that waterboarding, for instance, is torture’. Nowak and other experts said that a failure to investigate and prosecute when there was evidence of torture left those responsible vulnerable to prosecutorial action abroad. ‘If it should turn out … that the (U.S.) government and its authorities are not willing to prosecute those where we have enough evidence that they instigated or committed torture, then there is also an obligation on all other 145 states’ party to the convention to exercise universal jurisdiction, Nowak said. That means countries would have an obligation to arrest the individuals in question if they were on their soil and extradite them to the U.S. if Washington gave clear assurances they would bring them to justice. In the absence of such assurances, it would fall upon the respective country to take the individuals to court … Nowak also said any probe of questionable CIA interrogation tactics must be independent and have thorough investigative powers. This AP report can be read in full here.
According to this AP report, Nowak said it was up to courts and prosecutors “to prove that the memos were written with the intention to incite torture”.
The Washington Post reported that photographs of interrogation sessions “to be released by May 28, include 21 images depicting detainee abuse in facilities in Iraq and Afghanistan other than the Abu Ghraib prison, as well as 23 other detainee abuse photos, according to the American Civil Liberties Union and a letter from the Justice Department sent to a federal court in New York yesterday. In addition, the Justice Department letter said ‘the government is also processing for release a substantial number of other images’ contained in dozens of Army Criminal Investigation Division reports on the abuse. ‘This shows that the abuse of prisoners at Abu Ghraib was not aberrational but was systemic and widespread’, said Amrit Singh, an ACLU staff attorney involved with the 2004 Freedom of Information Act lawsuit that led to the promise to release the photographs. ‘This will underscore calls for accountability for that abuse’. Singh called for an independent investigation into torture and prisoner abuse and said it should be followed, if warranted, by criminal prosecutions … A Pentagon official disputed Singh’s remarks that torture was systemic. ‘What it demonstrates is that when we find credible allegations of abuse, we investigate them’, said a senior defense official, speaking on the condition of anonymity because of the sensitivity of the matter … [Defense Secretary Robert] Gates voiced concern that the release of photos, along with disclosures of interrogation memos and other materials, could cause unrest and create further problems for U.S. troops serving in Iraq, Afghanistan and elsewhere”.
This Washington Post article can be read in full here.
And, another Washington Post article says that Jay S. Bybee, who, while at the Justice Department OLS in 2002 signed the 1 August OLA memo which “offered a helpfully narrow definition of torture to the CIA” (the WPost says these “legal justifications for harsh interrogations … have become known as the ‘torture memos’), is now a sitting federal judge on the Court of Appeals for the 9th Circuit (apparently in Las Vegas, Nevada). He also reportedly teaches occasionally at the University of Nevada. According to the WPost article, two of Bybee’s staff lawyers who were at a dinner he hosted last May at a public restaurant said that Bybee suggested he could not feel proud of this previous legal work. The article also reported that “his misgivings appeared evident to some in his immediate circle”, and added that a fellow legal scholar and longtime friend, who spoke anonymously, said “I’ve heard him express regret at the contents of the memo … 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 … On the primary memo, that legitimated and defined torture, he just felt it got away from him”.
This WPost story added that “Democratic lawmakers, human rights groups and others have called for Congress to impeach Bybee, complaining that his 2003 Senate confirmation came more than a year before his role in the memos was known. ‘If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed’, said Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), adding that ‘the decent and honorable thing for him to do would be to resign’. Democrats blocked the nomination of former Defense Department general counsel William J. Haynes II to the Court of Appeals for the 4th Circuit because of his role in supporting aggressive interrogations of military detainees. Haynes withdrew his nomination in 2007”.
The story also reported that “Congress, the American Bar Association and the United Nations are [all] mull[ing] inquiries”. And it said that “Bybee’s friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington … was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, ‘Would you be willing to take a position at the OLC first?’,” according to one of his friends. This WPost article can be read in full here.
I wonder how Condi feels…