Chertoff Concealed Role in Tape Destruction

Homeland Security Secretary Michael Chertoff advised the CIA between 2002 and 2003 that its agents had the legal authority to use techniques that included waterboarding on one of the agency's so-called "high level detainees," according to a little-known report published in January 2005.

That interrogation was videotaped and the tape later was destroyed.

Chertoff was head of the Justice Department's Criminal Division when CIA officials inquired whether its agents could be charged with violating the federal anti-torture statute for employing interrogation methods such as waterboarding. The tactic is intended to make detainees feel as if they are drowning.

"The CIA was seeking to determine the legal limits of interrogation practices for use in cases like that of Abu Zubaydah, the Qaeda lieutenant who was captured in March 2002," says a January 29, 2005, New York Times story. That story quoted unnamed sources who told the newspaper that "Chertoff was directly involved in these discussions, in effect evaluating the legality of techniques proposed by the CIA by advising the agency whether its employees could go ahead with proposed interrogation methods without fear of prosecution."

During his Senate confirmation hearing in February 2005, Chertoff maintained that he provided the CIA broad guidance in response to its questions about interrogation methods and never specifically addressed the legality regarding waterboarding or other techniques.

However, Chertoff, according to intelligence sources who spoke to Truthout, told former CIA General Counsel Scott Muller and his deputy, John Rizzo, that an August 1, 2002, memo widely referred to as the "Torture Memo" put the CIA on solid legal ground and that its agents could waterboard a prisoner without fear of prosecution. The memo was written by former Justice Department attorney John Yoo.

Yoo's memo said that Congress "may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

The videotaped interrogations were destroyed in November 2005, after The Washington Post published a story that first exposed the CIA's use of so-called "black site" prisons overseas to interrogate terror suspects, using techniques that were not legal on US soil. The Post's story discussed Abu Zubaydah and the harsh methods the CIA used when questioning detainees. However, it's unknown whether the Post's story directly led to the destruction of the videotapes.

An intelligence official told Truthout that the CIA's Muller and Rizzo feared that the Justice Department's issuance of a new legal opinion defining torture in broader terms than Yoo's August 2002 memo would expose its agents - specifically those who interrogated Abu Zubaydah - to prosecution and so Rizzo had approved the destruction of the videotapes. That reported approval followed publication of The Washington Post story exposing the CIA's secret prisons, and the new legal opinion defining torture. Last week, The Times reported, however, that Rizzo did not give a top spy in the agency's clandestine division final approval to destroy the videotapes. Whether Rizzo did or did not approve destruction of the videotapes is one of the questions Congress said it was determined to get answers to.

Rizzo, a 30-year veteran of the CIA, is now the agency's acting general counsel. Congress has requested Rizzo to testify before a Congressional committee investigating the videotapes' destruction. However, the Bush administration is blocking Rizzo from testifying. In September, members of the Senate Intelligence Committee requested that Rizzo be withdrawn as the administration's pick to lead the CIA's legal department, on grounds that he was a strong supporter of the White House's so-called "enhanced interrogation methods." Those methods include waterboarding, which has been described as torture by human rights groups.

At his confirmation hearing in 2005, Chertoff claims he did not advise Rizzo or Muller on the legality of specific methods agents used during their interrogation of Abu Zubaydah. Rather, he said, he answered general questions the CIA had posed about interrogations.

"You are dealing in an area where there is potential criminality," Chertoff said he told the agency. "You better be very careful to make sure that whatever you decide to do falls well within what is required by law."

The Times reported that Rizzo did not give final approval to destruction of the videotaped interrogations.

A spokesman for Chertoff said the Homeland Security secretary would not comment on his previous role in advising the CIA on its interrogation methods.

Two weeks ago, The New York Times revealed that the CIA videotaped its agents waterboarding Zubaydah and another detainee at secret prison sites as a result of the July 2002 meeting at the White House. Those videotapes were destroyed in 2005 and are now at the center of yet another scandal that has engulfed the Bush administration.

The Justice Department's Office of Professional Responsibility launched an internal probe in late 2004 to determine whether one of two "torture" memos drafted by Yoo's office at the DOJ was unethical and opened the door to legal challenge. The details of that probe have not been disclosed. A DOJ spokesman would not respond to specific questions regarding the issue. The agency is required to turn over to the attorney general an annual report of its activities and internal probes. However, OPR has not posted on its website a copy of its annual report on its website since 2004, and the spokesman for the agency would not say whether the agency has submitted reports for the past three years or whether the findings of its probe into Yoo's "Torture Memo" were included in its fiscal year 2005 report, nor would the spokesperson provide Truthout with a copy.

The Capture and Interrogation

Zubaydah was captured in Pakistan on March 28, 2002, and whisked to a secret prison site in Thailand for interrogation, according to published reports.

During the early stages of his interrogation, Zubaydah was somewhat cooperative. Later he became tight-lipped when questioned about alleged terrorist plots against the United States and the whereabouts of other high-level associates of al-Qaeda.

In July 2002, a meeting was convened at the White House, where former White House counsel Alberto Gonzales, Justice Department attorney John Yoo, Vice President Dick Cheney, Cheney's attorney David Addington, and unknown CIA officials discussed whether the CIA could interrogate Zubaydah more aggressively in order to get him to respond to questions.

It was at this July 2002 meeting where Yoo, Gonzales and Addington gave the CIA the green light to use a wide variety of techniques, including waterboarding, on Zubaydah and other detainees at several secret prisons to "break" them and force them to cooperate with interrogators, according to an account published in Newsweek in late December 2003. Less than a month after the meeting, on August 1, 2002, Yoo drafted a memo to Gonzales that was signed by Jay Bybee, the assistant attorney general at the time. That memo declared that President Bush had the legal authority to allow CIA interrogators to employ harsh tactics to extract information from detainees. Human rights organizations and Democratic and Republican lawmakers have characterized the methods outlined in the Yoo memo as torture.

In his book "The One Percent Doctrine," author Ron 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, Suskind says.

Abu 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 writes.

But Bush portrayed Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States.

"And, so, the CIA used an alternative set of procedures" to get Zubaydah to talk, Bush said in the spring of 2002, after Zubaydah was captured.

Suskind writes that Zubaydah became one of the first prisoners in the wake of 9/11 to undergo some of the harshest interrogation methods at the hands of American intelligence officials.

Suskind says that, despite the fact that Bush was briefed by the CIA about Zubaydah's low-level al-Qaeda status, the president did not want to "lose face" because he had stated his importance publicly.

"Bush was fixated on how to get Zubaydah to tell us the truth," Suskind writes. Bush questioned one CIA briefer, "Do some of these harsh methods really work?"

Zubaydah was strapped to a waterboard and, fearing imminent death, 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 writes, the information Zubaydah had provided under duress was not credible.

Still, that did not stop "thousands of uniformed men and women [who] raced in a panic to each ... target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

Jason Leopold is senior editor and reporter for Truthout. He received a Project Censored award in 2007 for his story on Halliburton's work in Iran.

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