Zubaydah's Torture Preceded Yoo's Torture Memo

Bush administration officials have led the public to believe that Abu Zubaydah, the first high-value detainee captured after 9/11, was a senior al-Qaeda leader, who was subjected to waterboarding and other torture techniques after the Justice Department's Office of Legal Counsel (OLC) drafted an August 1, 2002, legal memo authorizing the CIA to use brutal methods during his interrogation.

But in a little known interviewformer CIA Inspector General John Helgerson gave to Spiegel magazine two weeks ago, he suggested Zubaydah was tortured "months" before OLC attorneys John Yoo and Jay Bybee wrote the August 1, 2002 memo. (Marcy Wheeler covered it last week.)

Zubaydah's attorney, Brent Mickum, and civil liberties groups like the ACLU have believed that Zubaydah was tortured long before the OLC's torture memo was issued, but they have not been able to obtain documentation to support their theory.

"Did the lawyer who signed the [August 1, 2002] memorandum simply authorize a technique months after this technique had already been applied?" Spiegel reporter Britta Sandberg asked Helgerson.

Although he said he could not "go beyond [his] published [May 2004] report[on the CIA's detention and torture program declassified last month]," Helgerson told Sandberg that "basically" her assumption was correct.

"There was some legal advice given orally to the CIA that had then been followed up by memorandums months later," Helgerson said of Helgerson's May 2004 report on the CIA's torture and detention program that was released last month.

The key word Helgerson used - months - is important because it changes the entire narrative about the start of the Bush administration's torture program. Helgerson's response undercuts assertions by the likes of Vice President Dick Cheney, who has become the staunchest defender of the use of torture, that the program was carefully created and implemented only after Bybee and Yoo issued their August 1, 2002, memo.

Helgerson told Spiegel that he launched his investigation for a number of different reasons; one of which was the fact that "a critical legal opinion was missing which I believed was needed to protect agency employees and detainees. It was then my own initiative to undertake this review. And in the process we found things that we did not expect to find."

Exactly what the legal advice the CIA received orally was and whether it was sound is a question that is expected to be answered in a still classified report prepared by the Justice Department's Office of Professional Responsibility, an internal ethics unit, according to Justice Department sources who have been briefed on the contents of the report.

These sources said the legal guidance came from OLC, specifically John Yoo.

The watchdog spent five years probing whether Yoo, Bybee and former OLC acting head Steven Bradbury provided the White House with poor legal advice in authorizing CIA interrogators to use waterboarding and other interrogation methods to glean information about terrorist plots from prisoners. The report's finding are said to be damning and concluded, among other things, that Yoo and Bybee acted as advocates for administration policy instead of independent minded lawyers and drafted legal opinions that essentially provided the administration with retroactive cover for policies and programs already enacted, these sources said.

Classified State Department Memo

In addition to the August 1, 2002, torture memo, which was created specifically for Zubaydah's torture, Yoo also prepared a still classified legalmemorandum for William Taft at the State Department, dated March 28, 2002, that also involved Zubaydah. That was the same day Zubaydah was arrested in Pakistan and, shortly thereafter, was rendered to a black site prison in Thailand. It's unknown what the memo says. Taft did not return calls for comment.

Two weeks earlier, on March 13, 2002, Yoo and Bybee prepared a legal memorandum for George W. Bush stating he could ignore a law that prohibited the transfer of prisoners to countries that engage in torture.

Jameel Jaffer, director of the ACLU's National Security Project, whose organization successfully won a Freedom of Information Act lawsuit to have the OLC legal memos declassified, said Yoo's memo to the State Department "suggests there was some consultation" about Zubaydah's rendition. He said Yoo's memo to Taft is the subject of ongoing litigation.

Early clues about when torture was used against Zubaydah began to surface earlier this year, in another FOIA lawsuit the ACLU filed against the CIA in connection with the agency's destruction of 92 interrogation videotapes in 2005. A special prosecutor, John Durham, was appointed more than a year ago to investigate whether any laws were broken in connection with the torture tape purge.

Additionally, Durham was also tapped by Attorney General Eric Holder last month to investigate about ten cases in which CIA interrogator and/or contractors exceeded Justice Department guidelines during the interrogation of detainees.

In court documents, the CIA disclosed that it began videotaping interrogations of Zubaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, in April 2002, four months before Yoo and Bybee drafted their torture memo. Zubaydah was captured on March 28, 2002.

The agency also acknowledged that 12 of those videotapes showed the two detainees being tortured. However, the agency refused to disclose documents to the ACLU that would have indicated whether the videotapes showed Zubaydah being tortured prior to the August 1, 2002, legal memo.

Zubaydah told the International Committee of the Red Cross that CIA interrogators said he was their first subject, "so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people."

The Principals

In May, a declassified timeline was released by the Senate Select Committee on Intelligence and revealed that in April 2002 top Bush administration officials began to put a plan together to torture Zubaydah.

According to the Intelligence Committee, in April 2002, while Zubaydah was recovering from gunshot wounds, the CIA's Office of General Counsel began to discuss with John Bellinger, the legal adviser to the National Security Council, then headed by Condoleezza Rice, and the Justice Department's Office of Legal Counsel, "the CIA's proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation."

The CIA believed that as early as April 2002, just a few weeks after he was captured, Zubaydah withheld "imminent threat information during the initial interrogation sessions," the timeline states.

Meetings were arranged to discuss an "alternative" set of interrogation methods, including waterboarding.

"The CIA's Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques," the Intelligence Committee timeline states. "To enable OLC to review the legality of the techniques, the CIA provided OLC with written and oral descriptions of the proposed techniques. The CIA also provided OLC with information about any medical and psychological effects of DoD's Survival, Evasion, Resistance and Escape (SERE) School, which is a military training program during which military personnel receive counter-interrogation training."

"Imminent Threats"

A month after Zubaydah's capture, Newsweek published a story about the alleged "imminent threat information" he gave up to his interrogators. If Zubaydah was tortured as early as April 2002, the so-called actionable intelligence he disclosed is a good example of how torture produces unreliable information.

The April 27, 2002 article, "How Good Is Abu Zubaydah's Information? Intelligence Officials Say They're Not Sure Why He's Talking, But That Some Of His Tips Make Sense," said that the Bush administration "issued two domestic terrorism warnings" based on the information provided to "US interrogators" by Zubaydah, which turned out to be bogus.

"One concerned possible attacks on banks or financial institutions in the Northeastern United States. That warning appears to fit with repeated statements by Al Qaeda leaders about the need to attack the US economy, a mission that Osama bin Laden himself touted in a recently discovered home video. Another tip from Zubaydah warned that Al Qaeda operatives could be planning attacks on US supermarkets and shopping malls," Newsweek reported. "Some US intelligence analysts for months have been quietly warning officials of potential suicide bombings at malls, where federal security experts say anti-terrorism precautions are lax to non-existent. These analysts believe the possibility of suicide attacks on US shopping malls has only been increased by the recent standoff between Israel and the Palestinians, and Abu Zubaydah's information has bolstered their arguments.

"US officials say that a third piece of information from Abu Zubaydah, about Al Qaeda's interest in obtaining or manufacturing a crude atomic device known as a 'dirty bomb,' also matches up with earlier US intelligence.... Zubaydah has told US interrogators that the bin Laden network was deeply involved in efforts to put together a 'dirty bomb' ... Zubaydah's information about Al Qaeda's interest in "dirty bombs" dovetails with other evidence gathered by US forces from terror camps and hideouts inside Afghanistan."

Zubaydah Was a "Logistical Officer"

Zubaydah has been described by former Secretary of Defense Donald Rumsfeld during an April 2, 2002, Pentagon news briefing as a "close associate" of Osama Bin Laden and "if not the number two, very close to the number two person" in al-Qaeda. During a June 2007 briefing on the Guantanamo Bay prison, Bellinger, the NSC legal adviser, went so far as to claim that Zubaydah helped plan the 9/11 attacks. The August 1, 2002, torture memo asserts that Zubaydah is the "third or fourth man in Al Qaeda," had served as a "senior lieutenant" to Bin Laden, "managed a network of training camps" and had been "involved in every major terrorist operation carried out by Al Qaeda."

But in an interview, Jack Cloonan, a former FBI special agent assigned to the agency's elite Bin Laden unit, said Abu Zubaydah "wasn't privy to a lot of what I would consider to be a lot of really good operational details" about al-Qaeda.

"I've had the opportunity to see a lot of things related to [9/11 mastermind] Khalid Sheikh Mohammed and Abu Zubaydah," Cloonan said, adding that the information he obtained about Zubaydah came from other people within al-Qaeda cells who knew him and stayed in his safe houses. "I first obtained information about Abu Zubaydah in 1996. We thought he would be best described as a logistical officer who managed a series of safe houses and was a great travel agent. But to cast him and describe him as the al-Qaeda emir or leader for the subcontinent or worse to that effect I think was a mistake.

"The way somebody put it to me, and this was a guy that knew Abu Zubaydah and actually was asked to do a little bit of an investigation into Abu Zubaydah, he was asked to do this by [top al-Qaeda leader Ayman al] Zawarhi because there was some money missing from one of the safe houses, and he came away with the idea that Abu Zubaydah would never, ever based on his age and ethnicity would ever be brought into the inner circle of al-Qaeda. My partner had a chance to look at a lot of Abu Zubaydah's diaries, poems and other things that he has written and he said that after reading this you just come away with the feeling that this is a guy who can't be trusted or being given huge amounts of responsibility. He just seemed mentally unstable.

"It's very important for the agency and others who promulgated these policies to have Abu Zubaydah described [as a top al-Qaeda figure]. To do otherwise just throws their whole theory to the wind. I'm not at all suggesting that Abu Zubaydah wasn't valuable. Anytime you get one of these guys and get their cooperation I think is a win. You can get information that's really valuable from people who are further down the food chain. It's how you get the information and whether you're getting real cooperation or simply compliance because somebody's either waterboarding you or gets you on sleep deprivation. We know and the science tells us that people cannot recall details accurately, they can't look at pictures, they will make things up if deprived of the bare essentials of life over the course of time. I don't understand how you could sleep deprive somebody for 11 days and now expect this person to provide you with accurate information. Even if they wanted to they're probably so debilitated at this point they need to be rehabilitated before they ever give you anything."

Bush "Fixated"

Cloonan's description of Zubaydah backs up what author Ron Suskind had reported in his book "The One Percent Doctrine".

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.

However, George W. "Bush was fixated on how to get Zubaydah to tell us the truth," Suskind wrote. Bush asked 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 wrote, the information Zubaydah provided under duress was not credible.

According to Suskind, 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 wrote.

Still, in public statements, Bush portrayed Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States," and added, "So, the CIA used an alternative set of procedures" to get Zubaydah to talk.

The president did not want to "lose face" because he had stated his importance publicly, Suskind wrote.

In the book, "State of War," New York Times reporter James Risen wrote that days after Zubaydah was captured, CIA Director George Tenet went to the White House to provide Bush with a daily intelligence briefing as well as details of "the Zubaydah case."

"Bush asked Tenet what information the CIA was getting out of Zubaydah," Risen wrote. "Tenet responded that they weren't getting anything yet, because Abu Zubaydah had been so badly wounded that he was heavily medicated. He was too groggy from painkillers to talk coherently. Bush turned to Tenet and asked 'Who authorized putting him on pain medication?'"

Risen's source for the information told him it's possible that this was simply "jocular banter" between Bush and Tenet.

But Risen wrote that it's also a possibility that the "comment meant something more."

"Was the president of the United States implicitly encouraging the director of Central Intelligence to order the harsh treatment of a prisoner? If so, this episode offers the most direct link yet between Bush and the harsh treatment of prisoners by both the CIA and the US military," Risen wrote. "If Bush made the comment in order to push the CIA to get tough with Abu Zubaydah, he was doing so indirectly, without the paper trail that would have come from a written presidential authorization."

"Borderline Torture"

One FBI agent Cloonan used to work with, Ali Soufan, interrogated Zubaydah after he was captured. Soufan said the rapport-building approach he and his partner Steve Gaudin had used with Zubaydah resulted in his cooperation. It was only after the CIA interrogators took over in the weeks following Zubaydah's capture that he began to clam up. Soufan said the interrogation methods used against Zubaydah amounted to "borderline torture," according to a 2008 Justice Department inspector general's report on the FBI's role in interrogations.

Soufan, in an op-ed he published in The New York Times in May after the Obama administration declassified a half-dozen torture memos, disputed CIA claims that Zubaydah only provided "throw-away information."

"It is inaccurate ... to say that Abu Zubaydah had been uncooperative," Soufan wrote. "Under traditional interrogation methods, he provided us with important actionable intelligence."

Interestingly, Gaudin told the Justice Department's IG he had no "moral objection" to the techniques being used against Zubaydah because they were "comparable" to the "harsh interrogation" techniques he "himself had undergone ... as part of the US Army Survival, Evasion, Resistance, and Escape (SERE) training."

Gaudin's statement would indicate that methods that had not yet been legally approved by the Justice Department were used against Zubaydah.

CIA Knew Little About Al-Qaeda

Cloonan's description, however, of what the FBI knew about Zubaydah and al-Qaeda in general and how the CIA by contrast was not knowledgeable about of the inner workings of the group, was something Helgerson discussed in his report and expanded upon in his interview with Spiegel.

"According to a number of those interviewed for this Review, the Agency's intelligence on Al-Qa'ida was limited prior to the initiation of the [Counter Terrorist Center] Interrogation Program," the report says. "The Agency lacked adequate linguists or subject matter experts and had very little hard knowledge of what particular Al-Qa'ida leaders - who later became detainees - knew. This lack of knowledge led analysts to speculate about what a detainee 'should know,' vice information the analyst could objectively demonstrate the detainee did know. [redacted]

"When a detainee did not respond to a question posed to him, the assumption at Headquarters was that the detainee was holding back and knew more; consequently, Headquarters recommended resumption of EITs [enhanced interrogation techniques]."

In the Spiegel interview, Helgerson said his investigation was "difficult" because of the "disorganization of the whole interrogation program."

"So much was being improvised in those early years in so many locations," he said. "There were no guidelines, no oversight, no training. How will you review a program handled differently in so many places in the world?"

In June, heavily redacted CIA documents from a March 2007 Combatant Status Review Tribunal were released and revealed that Zubaydah's torturers eventually apologized to him and said they concluded he was not a top al-Qaeda lieutenant as the Bush administration and intelligence officials had alleged.

"They told me sorry we discover that you are not number three, not a partner even not a fighter," Zubaydah said during his tribunal hearing.

Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.

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