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 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?
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 Guantánamo 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 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 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 Guantánamo 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.