The Evidence Demands Prosecution

Adam Serwer compared the Bybee memo to the ICRC report and finds that the CIA interrogators most certainly overstepped the legal limits placed on them by the Bush Administration.

The Bybee memo also describes a procedure known as "walling." The detainee wears a thick collar, which the interrogator uses to throw him against a "flexible wall." This "false wall" is meant to be constructed in such a way that impact creates a loud sound. Bybee wrote, "The idea is to create a sound that will make the impact seem far worse than it is and will be far worse than any injury inflicted on an individual." In Bybee's description, the detainee's shoulder blades are meant to hit the wall, implying that the detainee's back is to the wall.

In practice though, the ICRC report indicates that Zubayda was slammed "directly against a hard concrete wall." Another detainee, Walid Bin Attash, said that he was not only slammed against the walls of his interrogation room but that he was led along the corridor by his collar and slammed against the wall as he went. Another detainee said his head was slammed against a pillar repeatedly. One of the other memos released yesterday, written in May 2005 by Steven G. Bradbury, who was then head of the OLC, indicates that "walling" could be used "20 or thirty times consecutively when the interrogator requires a more significant response to a question."

In fact, one of the Bradbury memos acknowledges the illegal use of waterboarding with more frequency than spelled out in the Bybee memo's guidelines.

The memos include what in effect are lengthy excerpts from the agency’s interrogation manual, laying out with precision how each method was to be used. Waterboarding, for example, involved strapping a prisoner to a gurney inclined at an angle of “10 to 15 degrees” and pouring water over a cloth covering his nose and mouth “from a height of approximately 6 to 18 inches” for no more than 40 seconds at a time.

But a footnote to a 2005 memo made it clear that the rules were not always followed. Waterboarding was used “with far greater frequency than initially indicated” and with “large volumes of water” rather than the small quantities in the rules, one memo says, citing a 2004 report by the C.I.A.’s inspector general.

That IG report will eventually come out, among other documents, like those from between the time Abu Zubaydah was captured and the Bybee memo signed off on the 10 harsh interrogation tactics. Zubaydah himself said "the real torturing" started only three months after his capture, which would be around June 2002 (the Bybee memo allowing such techniques wasn't written until August), and it would be good to see that clarified.

But we already have enough evidence, provided by the government and the Red Cross, to indict those interrogators who did not act according to OLC dictates:

Senior administration officials have made it clear to me: neither President Obama's statement nor Attorney General Holder's words were meant to foreclose the possibility of prosecuting CIA officers who did NOT act in good faith, or who did not act according to the guidelines spelled out by the OLC.

As for acting in bad faith, how about those who demanded more information from Abu Zubaydah, when he had no more to tell and was clearly under mental strain?

The first use of waterboarding and other rough treatment against a prisoner from Al Qaeda was ordered by senior Central Intelligence Agency officials despite the belief of interrogators that the prisoner had already told them all he knew, according to former intelligence officials and a footnote in a newly released legal memorandum.

The escalation to especially brutal interrogation tactics against the prisoner, Abu Zubaydah, including confining him in boxes and slamming him against the wall, was ordered by officials at C.I.A. headquarters based on a highly inflated assessment of his importance, interviews and a review of newly released documents show.

Abu Zubaydah had provided much valuable information under less severe treatment, and the harsher handling produced no breakthroughs, according to one former intelligence official with direct knowledge of the case. Instead, watching his torment caused great distress to his captors, the official said.

Even for those who believed that brutal treatment could produce results, the official said, “seeing these depths of human misery and degradation has a traumatic effect." [...]

Quoting a 2004 report on the interrogation program by the C.I.A. inspector general, the footnote says that “although the on-scene interrogation team judged Zubaydah to be compliant, elements within C.I.A. headquarters still believed he was withholding information.”

The debate over the significance of Abu Zubaydah’s role in Al Qaeda and of what he told interrogators dates back almost to his capture, and has been described by Ron Suskind in his 2006 book, “The One Percent Doctrine,” a 2006 article in The New York Times and a March 29 article in The Washington Post asserting that his disclosures foiled no plots. (His real name is Zein al-Abideen Mohamed Hussein.)

This is to say nothing of the architects and superiors who designed, directed and authorized torture. But Attorney General Holder needs to be as good as his word here. The evidence exists to bring interrogators to trial. And the evidence certainly exists to bring to trial the top CIA personnel who demanded to wring Zubaydah out like an old sponge, ignoring the advice on the ground and acting in bad faith. I'd extend to these 4 ex-CIA chiefs who tried to illegally squash this information from ever being made public, George Tenet specifically, because this happened on his watch.

I'm sure someone at the Justice Department could convince a grand jury using only these documents. Prosecute.