CIA Will Continue to Withhold Key Bush-Era Torture Documents
by Jason Leopold,
t r u t h o u t | Report
The CIA said in court papers late Monday that it intends to withhold hundreds of pages of documents related to the Bush
administration's torture and detention policies on grounds that disclosing the information will threaten national
security.
In a 33-page declaration, Wendy M. Hilton, the associate information officer of the CIA's National Clandestine Service, said the documents the
agency is withholding are "primarily" those "from closed investigations conducted by the CIA's OIG [Office of Inspector
General] of alleged improprieties in the treatment of detainees in Iraq and Afghanistan.
"These documents include cables, OIG interview reports of CIA officers, emails written by CIA officers, memoranda and
other inter-office communications, memoranda for the record, presentations and handwritten notes," Hilton's declaration
states in reference to documents the CIA has withheld related to Justice Department legal opinions authorizing torture
and documents that were used to write a 2004 inspector general's report that reviewed the program.
Hilton said the documents could not be released even in redacted form.
"The documents contain information relating to how the CIA conducted counterterrorism operations against al-Qa'ida and
affiliated groups," she added. "This highly sensitive information details how the CIA developed its program, coordinated
with various other elements of the United States Government, targeted and exploited terrorists, worked with its liaison
partners, and developed information that was essential to protecting the United States."
Hilton said if the CIA disclosed the documents it would likely "degrade the USG's [US government's] ability to
effectively question terrorist detainees and elicit information necessary to protect the American people."
"These interrogation methods are integral to the USG.'s interrogation program ...," she added.
However, Obama signed an executive order January 22 banning the use of waterboarding and other methods of torture. So,
it's unclear from Hilton's affidavit how the government's ability to interrogate suspected terrorists would be
compromised if that is the case.
Hilton also provided a separate 42-page declaration, outlining reasons the agency would continue to withhold transcripts related to Combatant Status Review
Tribunals for specific detainees captured in the "war on terror."
The CIA's refusal to turn over the documents comes one week after the release of a May 2004 redacted report prepared by the agency's inspector general on the Bush administration's torture and detention of high-value detainees
at "black site" prisons. The report called into question the effectiveness of using brutal torture techniques to extract
intelligence and concluded that its use did not thwart any imminent terrorist attacks.
Attorney General Eric Holder appointed a federal prosecutor to conduct a "preliminary review" of about ten cases where
CIA interrogators and/or contractors deviated from Justice Department legal opinions that authorized agency operatives
to use specific methods, such as waterboarding, during interrogations.
Holder and the Obama administration have been viciously attacked by the likes of former Vice President Dick Cheney and
Republicans for initiating a review of those cases. Cheney, in an interview last Sunday on Fox News, called the decision
an "outrageous political act."
In court papers, the CIA also argued that information about the Bush administration's torture program thus far should
be strictly limited to the historical context and the legal underpinnings. But that doesn't square with the fact that
the government has already released dozens of pages of documents that go far beyond the abstract details about the
interrogations.
For example, last week, in addition to the CIA IG report, the CIA released a document that for the first time described
in extraordinary detail the process of "rendition" and how the systematic torture of high-value detainees is implemented
once those prisoners are carted off to "black site" prisons.
The documents at issue, which a federal judge ordered the Obama administration to turn over to the ACLU by August 31 or
cite reasons for continuing to withhold them, provide a detailed back story about the Bush administration's torture
program and shows how the systematic torture of detainees had been managed and who the top officials were that
implemented and oversaw what became policy.
The ACLU filed Freedom of Information Act lawsuits against the Bush administration for access to documents describing
the treatment of detainees in US custody. Thus far, the ACLU has obtained more than 100,000 pages of documents.
The CIA did, however, did turn over a 203-page index that describes the contents of the documents that remain classified. The agency said many of those documents were being
withheld because they contains "information relating to intelligence activities (including special activities),
intelligence sources, intelligence methods, and foreign relations or foreign activities of the United States, including
confidential sources, that is properly classified ... and is thus protected from disclosure." [Marcy Wheeler has
compiled an extensive list of the materials.]
Bush's Action Memorandum
One document described as a "a four page memo and a two page memo that is undated and a one page email dated February
7, 2002. The email is informing a CIA officer that the writer of the email has been tasked by [the Office of General
Counsel] to review memos. The emailer also mentions they need to follow up in the issue of whether paws [sic] could be
tried in the US criminal court."
February 7, 2002 was the same date that George W. Bush issued an action memorandum, which denied baseline protections
to al-Qaeda and Taliban prisoners under the Third Geneva Convention.
Several documents contain information about anticipated litigation related to the torture program during the weeks
prior to the issuance of an August 1, 2002 Justice Department legal opinion authorizing torture.
"This document is a 2-page email chain between CIA attorneys," the index says, describing a July 10, 2002, document.
"The document contains the attorneys' legal analysis as it relates to a specific issue that arose in the context of the
CIA's counter-terrorism program, which was created in anticipation of litigation."
That email was written three days before John Yoo, a deputy assistant attorney general in the Justice Department's
Office of Legal Counsel, provided CIA acting general counsel John Rizzo with legal advice on how to avoid violating
torture laws.
Abu Zubaydah
Another document is "a 4-page draft plan dated March 16, 2002 from two CIA officers detailing proposed enhanced
interrogation techniques."
The officers are believed to be Dr. Bruce Jessen and James Mitchell, who were actually contractors hired by the CIA and
are widely credited with helping to design the torture program and the list of specific techniques to be used against
high-value detainees.
The March 16, 2002, document was drafted two weeks before the CIA and Pakistani intelligence agents captured Abu
Zubaydah, the first high-value detainee, who was also the first prisoner to be subjected to waterboarding and other
torture techniques.
The interrogation plan was also drafted just three days after Yoo drafted a legal memo authorizing the CIA to "render"
suspected terrorists to black site prisons in other countries, where they were tortured.
Another document related to the capture of Zubaydah indicates the CIA took an active role in his interrogation shortly
after he was captured. Zubaydah's initial interrogation had been handled by the FBI, whose agents had used the
rapport-building approach to obtain intelligence information from him.
However, a one-page email dated April 5, 2002, "with an attached two page cable from a CIA attorney to a CIA officer
regarding the interrogation of Abu Zubaydah" indicates CIA became involved in the interrogation and likely moved toward
more coercive techniques.
That seems to be backed up by an April 16, 2002, document described as "a 4-page Memorandum for the Record by two CIA
officers dated April 16, 2002 that outlines pre-decisional discussions among CIA attorneys and officers, as well as
attorneys from other government agencies that occurred in anticipation of a counter-terrorism operation." The two CIA
officers referred to in the document may also be Mitchell and Jessen.
According to previously released documents and numerous public statements by Bush administration officials, Zubaydah
was not subjected to so-called "enhanced interrogation techniques" until after Yoo drafted the August 1, 2002, torture
memo.
One undated document "contains 26 pages of photos and a handwritten coversheet detailing a classified intelligence
method."
While it has been known that the CIA videotaped its interrogations of Zubaydah and another high-value detainee, it's
unknown if interrogators also photographed those interrogations as the description of the withheld document would appear
to indicate.
Some withheld documents also contain information about the CIA's desire to increase the level of torture against
detainees. A 38-page document dated November 2, 2002, outlines "the need for and proposing a more intense
counterterrorism program, for detained unlawful combatants. It discusses certain proposed interrogation techniques,
medical information, and operational intelligence."
The documents that followed during that month were from CIA headquarters in Langley and relate to the capture and
torture of Abd al-Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing.
A November 9, 2002, "one page cable from CIA Headquarters to the field. The cable contains information relating to the
detention of al-Nashiri," and a November 12, 2002, document, which "is a one page email chain between CIA officers with
a one page cable attached. The document relates to the interrogation of a terrorist suspect conducted within the CIA's
counter-terrorism program."
Al-Nashiri
Another document, dated November 21, 2002, is a "five page cable from the field to CIA Headquarters. The cable contains
information relating to the interrogation of al-Nashiri."
It was Nashiri's interrogation that sparked Helgerson's investigation of the CIA's torture and detention program.
The review was launched in January 2003 after the agency's Office of the Inspector General received word from agency
officials that "unauthorized interrogation techniques" were used against Al Nashiri.
Al Nashiri was captured in late October 2002, was waterboarded 12 days after his capture and a month later was singled
out in a speech George W. Bush gave at the fairgrounds in Shreveport, Louisiana.
"The other day we hauled a guy in named al-Nashiri. It's not a household name here in America. I can understand why
some go blank when they hear his name. But he was the al-Qaeda commander in the Gulf States," Bush said on December 3,
2002.
"Let me just put it to you this way: He no longer has the capacity to do what he did in the past, which was to
mastermind the USS Cole that killed - the plot on the Cole that killed American soldiers. He's out of action for the
good of the world.
"Sometimes you'll see it and sometimes you won't. But you've got to know that in this war against terror, the doctrine
stands that says, 'Either you're with us or you're with the terrorists.'"
About three weeks after Bush's speech, according to the report, one interrogator, who pretended to be an operative from
a Middle East intelligence agency, threatened to rape Al Nashiri's mother in front of him. Interrogators also threatened
Al Nashiri with a gun and revved power drill while he stood naked and hooded during the interrogation.
"The debriefer used an unloaded semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information....
Nashiri sat shackled and [he] racked the handgun once or twice close to Al-Nashiri's head. On what was probably the same
day, the debriefer used the power drill to frighten Al-Nashiri. With [redacted] consent, the debriefer entered the
detainee's cell and revved the drill while the detainee stood naked and hooded. The debriefer did not touch Al-Nashiri
with the power drill," the report says.
It is a violation of the Convention Against Torture to threaten a prisoner in custody of the US government with death.
The CIA also withheld, according to the index, "a 129 page draft document [dated February 24, 2004], regarding the
review of the CIA's interrogation program, with comments and suggestions from a CIA attorney on how the document could
be improved."
That document likely refers to a draft of CIA Inspector General John Helgerson's report on the torture and detention
program.
Lack of Transparency
Although the Obama administration has released hundreds of pages of previously classified Bush administration documents
that have shed enormous light on the highly secretive torture and detention program, as evidenced by the public
disclosure of the CIA IG report, the Obama White House continues to withhold crucial documents that would no doubt
provide valuable insight into the roles played by top Bush officials during the torture program's five-year life span.
Such disclosures, however, would certainly lead to calls for a wide-ranging investigation of those officials, which
some key Democrats and civil liberties groups have already called for, as opposed to the limited scope review involving
CIA officers and contractors Holder authorized last week.
Obama has said he is not interested in "looking backwards" and he has fought hard against Congressional efforts to
launch a "truth commission" that would delve into the Bush administration's broad claims of executive power and probe
the policies that led to torture and domestic surveillance.
For organizations like the ACLU that have waged years-long legal battles to pry loose secret documents, Obama's
continued resistance flies in the face of the open government and transparency promises he had made immediately after
taking office.
Indeed, on January 21, Obama signed an executive order instructing all federal agencies and departments to "adopt a
presumption in favor" of Freedom of Information Act (FOIA) requests and promised to make the federal government more
transparent.
"The Government should not keep information confidential merely because public officials might be embarrassed by
disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," Obama's order
said. "In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of
cooperation, recognizing that such agencies are servants of the public."
But in some highly charged FOIA cases Obama has inherited, his Justice Department has adopted the same legal arguments
used by the Bush administration that were previously rejected by federal courts in arguing against disclosure.
In opposing a federal court order demanding the administration release of more than two-dozen detainee abuse photos, a
matter that the Obama administration has now appealed to the US Supreme Court, the White House has said national
security would be threatened, an argument the Second Circuit Court of Appeals rejected when it was used by the Bush
administration.
But what is the more likely scenario is that disclosing those images would lead to calls for accountability, force
Congress to take action and that, in turn, would jeopardize Obama's domestic priorities such as overhauling the health
care system - a policy initiative he has staked his presidency on.
Jameel Jaffer, director of the ACLU's National Security Project, said the Obama administration's message is
inconsistent with what Justice Department lawyers state in court.
"The CIA's justification for withholding the documents is entirely incompatible with the Obama administration's stated
commitment to ending torture and restoring governmental transparency. On the one hand, President Obama has publicly
recognized that torture undermines the rule of law and America's standing in the world, but on the other, the CIA
continues to argue in court that it cannot disclose information about its torture techniques because it would jeopardize
the CIA's interrogation program," Jaffer said. "The CIA's arguments are utterly disconnected from the Obama
administration's stated positions. The agency seems to be disregarding altogether the important policy changes that
President Obama announced immediately after he took office."
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Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.