Who Authorized The Torture of Abu Zubaydah?

For the defendants of the use of torture by US 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
Guantanamo 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 Guantanamo
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?

It's clear that the major reason this question has been overlooked
is because, as the ICRC report reveals, Zubaydah was not subjected to waterboarding
(an ancient torture technique that involves controlled drowning) until
after the memo was issued, but what is also apparent is that the
treatment to which he was subjected before the waterboard was
introduced also "constituted torture."

The torture of Abu Zubaydah before August 2002

Zubaydah was severely wounded during his capture in Faisalabad, Pakistan, to the extent that, as President Bush explained in a press conference
in September 2006, shortly after Zubaydah and 13 other "high-value
detainees" had been transferred to Guantanamo from secret CIA prisons,
"he survived only because of the medical care arranged by the CIA." We
don't know if there is any truth to the allegation, made by Ron Suskind
in his 2006 book The One Percent Doctrine,
that medication was only administered in exchange for his cooperation
(it seems likely, but has been officially denied), 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."

We also know that, shortly after his capture, Zubaydah was flown to
Thailand, to a secret underground prison provided by the Thai
government, where, as a New York Times
article in September 2006 explained, "he was stripped, held in an icy
room and jarred by earsplittingly loud music - the genesis of practices
later adopted by some within the military, and widely used by the
Central Intelligence Agency in handling prominent terrorism suspects at
secret overseas prisons."

The details of his treatment, "based on accounts by former and
current law enforcement and intelligence officials," were even more
shocking. We have become somewhat inured, over the years, to stories of
prisoners deprived of sleep for disturbing long periods of time, in
which the use of loud, non-stop music - in this case, the Red Hot Chili
Peppers - played an integral part.

This in itself is unacceptable, as the use of music
is not simply a matter of being forced to listen to the same song over
and over again at ear-splitting volume, but is, instead, a component in
a program of sleep deprivation and isolation designed to provoke a
complete mental breakdown. One of the major reference points for the
CIA in the 1950s, when it was deeply involved in investigating the
efficacy of psychological torture techniques, was research conducted by
Donald Hebb, a Canadian psychologist, who discovered that, "if subjects
are confined without light, odor, sound, or any fixed references of
time and place, very deep breakdowns can be provoked," and that, within
just 48 hours, those held in what he termed "perceptual isolation" can
be reduced to semi-psychotic states.

However,
while some interpretation and empathy is required to understand the
impact on Abu Zubaydah of his profound isolation in this period, in
which, as the Times also reported, he was largely cut off
from all human interaction, only occasionally punctuated by an
interrogator entering his cell, saying, "You know what I want," and
then leaving, there is no denying the visceral impact of the following
description. "At times, Mr. Zubaydah, still weak from his wounds, was
stripped and placed in a cell without a bunk or blankets," the Times
explained. "He stood or lay on the bare floor, sometimes with
air-conditioning adjusted so that, one official said, Mr. Zubaydah seemed to turn blue" (emphasis added).

Further information about Zubaydah's treatment in Thailand has not emerged in great detail. In The Dark Side,
Jane Mayer noted only that he was "held naked in a small cage, like a
dog," and the ICRC report focused instead on his detention in
Afghanistan, from May 2002 to February 2003. What we do know, however,
from the Senate Committee's report, is that an FBI agent was so
appalled by his treatment at the hands of CIA agents that he "raised
objections to these techniques to the CIA and told the CIA it was
'borderline torture,'" and that, sometime later, FBI director Robert
Mueller "decided that FBI agents would not participate in
interrogations involving techniques the FBI did not normally use in the
United States." We also know from Jane Mayer that R. Scott Shumate, the
chief operational psychologist for the CIA's Counterterrorist Center,
left his job in 2003, apparently disgusted by developments involving
the use of the "enhanced interrogation techniques," and that
"associates described him as upset in particular about the treatment of
Zubaydah."

Moreover, although the ICRC report dealt only with Zubaydah's
treatment in Afghanistan, it's also clear that the techniques to which
he was subjected in Afghanistan, in the approximately two and a half
months before the OLC memos were signed, also "constituted torture."

In his statement to the ICRC, Zubaydah explained how, even before
the waterboarding began, he was strapped naked to a chair for several
weeks in a cell that was "air-conditioned and very cold," deprived of
food, subjected to extreme sleep deprivation for two to three weeks -
partly by means of loud music or incessant noise, and partly because,
"If I started to fall asleep one of the guards would come and spray
water in my face" - and, for the rest of the time, until the
waterboarding began, was subjected to further sleep deprivation, and
kept in a state of perpetual fear.

This array of techniques undoubtedly appears less dramatic than the
"real torturing" that followed (in which the waterboarding was
accompanied by physical brutality, hooding, the daily shaving of his
hair and beard, and confinement in small boxes), but, again, it is
critical to try to imagine what two to three weeks of chronic sleep
deprivation actually means, and to recall that, by the time Steven G.
Bradbury, the Principal Deputy Assistant Attorney General, revised the
approval for torture techniques in May 2005, it was noted that it was
only considered acceptable to subject a prisoner to 180 hours (seven
and a half days) of sleep deprivation.

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 protege 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 US
military schools.

Designed to teach military personnel how to resist interrogation if
captured by a hostile enemy, the SERE program uses outlawed techniques
derived from techniques used on captured US soldiers during the Korean
War to elicit deliberately false confessions, and includes, as the
Senate Committee report explained, "stripping detainees of their
clothing, placing them in stress positions, putting hoods over their
heads, disrupting their sleep, treating them like animals, subjecting
them to loud music and flashing lights, and exposing them to extreme
temperatures." In some circumstances, the techniques also include
waterboarding, and, as numerous sources - including the recently
released reports and memos - have revealed over the last few years, the
reverse-engineering of the SERE techniques constituted the bedrock of
the administration's interrogation program, from Afghanistan, Iraq and
Guantanamo to the secret dungeons of the CIA.

As we also know, from the pioneering research conducted by Jane
Mayer, by the time that the CIA took over Zubaydah's interrogation from
the FBI, in April 2002, the team included Dr. James Mitchell, a retired
Air Force SERE psychologist. Thanks to the detailed timeline provided
by the Senate Committee, we now know that it was Haynes who first
inquired about the applicability of the SERE program to the
interrogation of prisoners in December 2001, and we also know that, in
April 2002, while "experienced intelligence officers were making
recommendations to improve intelligence collection" - which,
noticeably, included an assessment by Col. Stuart A. Herrington, a
retired Army intelligence officer, that a regime based solely on
punishment "detracts from the flexibility that debriefers require to
accomplish their mission" - "JPRA officials with no training or
experience were working on their own exploitation plan," and a
colleague of Mitchell's, Bruce Jessen, a senior SERE psychologist, was
providing recommendations for JPRA involvement in the "exploitation of
select al-Qaeda detainees" in an "exploitation facility" to be
established especially for the purpose - which, presumably, turned out
to be the secret dungeon provided by the Thai government.

We also know from Mayer that discussions about the CIA's proposed
interrogation techniques, in April 2002, involved numerous other senior
officials - beyond the key involvement of Haynes - in meetings in the
White House's Situation Room that were chaired by National Security
Advisor Condoleezza Rice, and attended by Cheney, Rumsfeld, Tenet,
Secretary of State Colin Powell, and Attorney General John Ashcroft,
and, moreover, that the level of detail provided by Tenet appalled
Ashcroft to such an extent that he lamented, "History will not judge us
kindly."

This is disturbing enough, but what makes it even more chilling is
the realization that the tactics being discussed, which, it is clear,
led swiftly to their enactment in actual interrogations, were some
months away from being authorized by the OLC. As the Times
article explained, in what was perhaps its most damning passage, "Three
former intelligence officials said the techniques had been drawn up on
the basis of legal guidance from the Justice Department, but were not
yet supported by a formal legal opinion."

Is no one responsible?

In my book, this means that, regardless of the validity of the OLC's
opinions, those who authorized the torture of Abu Zubaydah between
March 28 and July 31, 2002 are not protected by the OLC's supposed
"golden shield," and should be prosecuted for contravening the
prohibition on the use of torture that, since 1988, has been enshrined
in US law. This may not apply to all of those who attended the meetings
in the White House (plus Haynes), but it's inconceivable that the CIA
began subjecting Abu Zubaydah to chronic isolation and sleep
deprivation without receiving approval from somebody in high office.

It remains to be seen, however, whether the Obama administration is
committed to abiding by the laws that President Obama praised so
lavishly during his election campaign, or whether, instead, he and his
administration are committed to reading from a different book: How To Torture With Impunity And Get Away With It,
by former Vice President Dick Cheney and an array of associates, all
intoxicated with the thrill of unfettered executive power, which
concludes by claiming that you get away with breaking any damn law that
you please, so long as you're voted out of office at the end.