Bush consigliere Gonzo authorized torture of Zubaydah from the White House

Posted by AzBlueMeanie:

The most under-reported story this week was the revelation by NPR's All Things Considered that then White House Counsel Alberto Gonzales signed off on torture techniques for Abu Zubaydah between the time the Bush torture program first developed sometime in February 2002, and the first CYA "torture memo" from the Office of Legal Counsel (OLC) on August 1, 2002. Did White House OK Earliest Detainee Abuse? (h/t talkingpointsmemo.com for photo)

All Things Considered May 20, 2009 · It is clear that increasingly abusive interrogation techniques were used on Abu Zubaydah, the first high-value detainee, in the months between his capture and the first Justice Department memo authorizing harsh interrogations. But the legal guidance that authorized those early interrogations remains shrouded in secrecy.

Zubaydah was picked up on March 28, 2002. The Justice Department issued its first memo on torture four months later on Aug. 1.

Zubaydah's lawyer, Brent Mickum, believes documents and testimony in the public record establish "beyond question that Abu Zubaydah was subjected to torture before the issuance of the Aug. 1 memorandum."

The public record includes testimony from Ali Soufan, a former FBI interrogator who was with Zubaydah during April and May of 2002. Soufan told Congress last week that "contractors had to keep requesting authorization to use harsher and harsher methods."

Soufan testified that in the first two months of Zubaydah's interrogation, a CIA contractor used nudity, sleep deprivation, loud noise and extreme temperatures during interrogations. That contractor has been identified as a psychologist named James Mitchell. Mitchell has not commented publicly in recent years, and he could not be reached for this story.

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The use of "borderline torture" against Zubaydah months before the first Justice Department memo authorizing harsh interrogations raises the question of whether Mitchell had legal permission to use abusive techniques.

The CIA suggests that he did.

"The Aug. 1, 2002, memo from the Department of Justice was not the first piece of legal guidance for the interrogation program," according to agency spokesman Paul Gimigliano.

But the CIA will not describe what the first legal guidance was.

One source with knowledge of Zubaydah's interrogations agreed to describe the legal guidance process, on the condition of anonymity.

The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA's counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration's legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

A new document is consistent with the source's account.

The CIA sent the ACLU a spreadsheet late Tuesday as part of a lawsuit under the Freedom of Information Act. The log shows the number of top-secret cables that went from Zubaydah's black site prison to CIA headquarters each day. Through the spring and summer of 2002, the log shows, someone sent headquarters several cables a day.

"At the very least, it's clear that CIA headquarters was choreographing what was going on at the black site," says Jameel Jaffer, the ACLU lawyer who sued to get the document. "But there's still this question about the relationship between CIA headquarters and the White House and the Justice Department and the question of which senior officials were driving this process."

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Attorneys who have worked in the White House counsel's office describe it as "highly unusual" for the White House to tell interrogators what they can and cannot do. Bradford Berenson worked in the counsel's office under President Bush, though he had no role in authorizing harsh interrogations.

"These were highly unusual and extraordinary times after 9/11," says Berenson, "but ordinarily the White House counsel's office is not in the business of providing advice to anyone outside the White House itself."

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"I can't believe the CIA would have settled for a piece of paper from the counsel to the president," says one former government official familiar with those discussions.

"If that were true," says the former official, "then the whole legal and policy review process from April through August would have been a complete charade."

Spencer Ackerman flags the critical detail in A New CIA Log Of Torture Communications: "Now, note that Gonzales at the time wasn't the attorney general. He wasn't the chief legal official for the government. He was the president's lawyer, powerless to bless the actions of a federal agency like the CIA."

White House Counsel was not the office to be overseeing a highly classified torture program. I am not certain that White House Counsel would even have the necessary security clearance to see highly classified national security communications. White House Counsel certainly is not in the normal chain of command for national security matters. Which calls into question why and how Alberto Gonzales was the point man authorized to sign off on torture techniques for Abu Zubaydah.

More importantly, Alberto Gonzales could prove to be the lynchpin to unraveling the genesis of the Bush torture program. It will be an unintended consequence of Kenneth Starr's prosecution of President Clinton.

[I]n 1997, the U.S. Court of Appeals for the Eighth Circuit, in In re Grand Jury Subpoena Duces Tecum, broadly ruled: “We need not decide whether a governmental attorney-client privilege exists in other contexts, for it is enough to conclude that even if it does, the White House may not use the privilege to withhold potentially relevant information from a federal grand jury.”

The Supreme Court allowed the Eighth Circuit’s decision in In re Grand Jury Subpoena Duces Tecum to stand. That decision’s broad holding—that there is no attorney-client privilege protecting White House Counsels’ advice to the President—must be viewed as the law of the land when such evidence is sought by a federal grand jury or in any related criminal proceeding.

Barely a year later, in In re Lindsey, the U.S. Court of Appeals for the D.C. Circuit similarly ruled, in the context of a grand jury subpoena issued to a Deputy Counsel to the President, that the attorney-client privilege does not permit a government lawyer to withhold information relating to commission of possible crimes from a federal grand jury.

The court found that the requirements of 28 U.S.C. § 535(b) suggested that because all government lawyers are duty-bound not to withhold evidence of federal crimes there is no attorney-client privilege shielding White House lawyer communications with White House officials from disclosure to a grand jury. The court so held, notwithstanding the argument by the White House that Deputy White House Counsel Lindsey’s testimony would disclose legal advice to White House officials that did not constitute evidence of a crime.

Excerpts from "Has Attorney-Client Privilege Departed the White House?," by Arthur B. Culvahouse, Jr. http://www1.law.nyu.edu/pubs/annualsurvey/documents/63_Ann._Surv._Am._Law_139_2007.pdf

This is the reason why a special prosecutor or Independent Counsel should be appointed to investigate the Bush torture program, not a congressional "truth commission."

Spencer Ackerman discusses some of the details of the CIA spreadsheets produced to the ACLU:

If you go to this page and click on "List of Contemporaneous and Derivative Records (May 18, 2009)" then you can see this voluminous log. There are 580 listed communications from the "field" to CIA headquarters, almost all from 2002, and beginning April 13, 2002. It takes until communication #471 before reaching a point in time when the communication could be about a different detainee from Abu Zubaydah, since it's not until sometime in November 2002 that Abd al-Rahim al-Nashiri, another detainee the CIA waterboarded, was detained. And 249 of these communications occur before the August 1, 2002 Office of Legal Counsel memo blessing the torture techniques Mitchell advocated. There is no indication of the substance of any of the communications. [UPDATE: Marcy emails to remind me that the International Committee of the Red Cross' report on the CIA's ex-detainees lists al-Nashiri's arrest as occurring in October 2002 in Dubai, so there are 415 communications that could only be about Abu Zubaydah, not 470. The ACLU's Jameel Jaffer says that these logs, obtained thanks to their lawsuit about the CIA's destroyed torture tapes, only concern the interrogations of Abu Zubaydah and al-Nashiri.]

This still doesn't address a central question raised by Soufan's testimony to a Senate Judiciary panel. If Soufan is telling the truth, then someone at the CIA must have overruled the agency's own torture-dissenting interrogators at the Abu Zubaydah interrogation in favor of Mitchell, an agency contractor. Did any of them send cables to the Counterterrorist Center? Was the Counterterrorist Center aware of their objections to torturing Abu Zubaydah? And if so, why did they overrule their own officers in favor of a contractor who didn't come from an agency that conducts interrogations? Cofer Black was head of the Counterterrorist Center when the interrogation of Abu Zubaydah began — he's now an official with Blackwater Xe — and Jose Rodriguez, he of the torture-tapes destruction scandal, took over for Black in May 2002. What did they know and when did they know it? How many of the communications to CIA headqurters listed in the logs were from CIA interrogators at Abu Zubaydah's interrogation chamber objecting to Mitchell's techniques?

Daily Kos blogger mcjoan in her post "Bombshell Report Ties Gonzo to Torture, Months Before 'Authorization'" offers an explanation of who was overseeing the Bush torture program:

We have at least a hint of which senior officials (besides Gonzales) were driving this process from a description in Barton Gellman's Angler, in which he describes how legal policy was shaped early on after 9/11, and the individuals involved:

By the afternoon of September 11, [David] Addington had made contact with Timothy Flanigan, the deputy White House counsel. Flanigan's boss, Alberto Gonzales, was stranded in Norfolk…. No matter. His deputy was the one Addington wanted….

Flanigan was in the Situation Room on September 11. When Addington reached him from the bunker, Flanigan patched in the Justice Department Command Center across town. There he found a young attorney named John C. Yoo…. Responding to a request from Flanigan, Yoo wrote two weeks after the al Qaeda attacks that no law "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."…

…Addington, working almost invariably through proxies, requested OLC opinions on subjects calculated to elicit broad replies. Addington insisted on strict secrecy, preventing the circulation of drafts to agencies that might challenge Yoo's analysis. With the rulings in hand, the vice president's counsel [Addington] wrote the regulations, directives, and executive orders that changed events…. Gonzales became the interpreter and salesman of new legal theories to Bush, without whose signature nothing big could happen.

Thus formed the core legal team that Cheney oversaw, directly and indirectly, in the years after September 11. "Addington, Flanigan, and Gonzales were really a triumverate," recalled Bradford A. Berenson, then an associate White House counsel. "Gonzales had the relationship with the president. Addington had the relationship with the vice president. And Flanigan, as a former OLC head, had the legal expertise. It was a flying wedge of staffers backed up by the president and the vice president, and it doesn't get much better than that."

It's easy to see how, using Yoo's "president as king" formulation, the president's lawyer could become the point person for the CIA in authorizing torture, particularly if, as Lawrence Wilkerson and others have alleged, that the vice president was pushing for the use of torture on Zubaydah.

All the evidence points to Dick Cheney.