If we were going to get Zubaydah to talk, the CIA experts believed they needed something stronger. They needed enhanced types of interrogations if they were ever going to make any headway with him at all—and every day that went by in which we did not gain the information he knew allowed al-Qaeda another opportunity to hit us.
So what do you do when you catch a bad guy like this? You follow George Tenet’s wry observation: “Despite what Hollywood might have you believe, in situations like this you don’t call in the tough guys; you call in the lawyers.”2
Contrary to what Americans see on television or in the movies, before any CIA operative will do anything not permitted in the United States Army Field Manuals—which detail the interrogation guidelines for military personnel—they want a written legal opinion from the Justice Department advising them that whatever they intend to do is legal. Otherwise, the CIA agents and their leaders could be prosecuted under the existing US anti-torture statute.
In 1988, the United States signed an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment (known as the CAT). Under Article 2 of the CAT, the United States committed to passing a law outlawing torture. Furthermore, under Article 16, the United States agreed to prohibit acts of cruel, inhumane, or degrading treatment or punishment that do not rise to the level of torture.3 The US State Department summary and analysis of the CAT stated that “torture is at the extreme end of cruel, inhumane, and degrading treatment or punishment,” and that to constitute torture an act must be “of an extremely cruel and inhumane nature, specifically intended to inflict excruciating and agonizing physical or mental suffering.”4
Because of concerns regarding the ambiguity of the terms “cruel, inhumane, or degrading” in Article 16, the State Department recommended that the United States express an understanding that the terms of Article 16 mean cruel, unusual, and inhumane treatment or punishment that is prohibited by the Fifth, Eighth, and/or the Fourteenth Amendments to the US Constitution.5
Human rights groups immediately pushed back, claiming the bar for an act to constitute torture was too high, causing the United States to reassure the world that we were not raising the threshold of pain required for an act to be torture. This was reflected in a statement from the legal advisor to the State Department in 1990, explaining that to constitute torture, an act must be a deliberate and calculated act of cruel and inhumane nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering. In that same letter, the legal advisor recommended that the United States take a “reservation” instead of the weaker “understanding” to Article 16, because of the ambiguous nature of its terms, particularly “degrading treatment.”6
The head of the criminal division of the Justice Department, the office that would prosecute acts constituting torture, confirmed the extremely high threshold commonly understood in international law when he wrote:
As applied to physical torture, there appears to be some degree of consensus that the concept involves conduct the mere mention of which sends chills down one’s spine; the needle under the fingernail, the application of electric shock to the genital area, the piercing of eyeballs, etc. Techniques which inflict such excruciating and agonizing physical pain are recognized as the essence of torture. Hence, the Convention chose the [word] “severe” to indicate the high level of the pain required to support a finding of torture.7
Anticipating the question of why the United States even had to define torture, the head of the criminal division wrote that the definition of torture is imprecise, making it doubtful the United States government could enforce the law consistent with constitutional due process constraints. Further, the imprecise definition would have the effect of generating “unwanted litigation in areas of law enforcement.” Against this backdrop, the United States ratified the CAT, but took a reservation to Article 16, reflecting that the United States concepts of “cruel, inhumane, and degrading” differ somewhat from international law as understood by other nations.
At our April 1, 2002, NSC meeting, Zubaydah was a major topic of discussion. Everyone in the room knew he was a senior level operative in al-Qaeda, and we also knew there was a lot of chatter on the terrorist hotlines.
The president was concerned about increased threat reporting and our intelligence agencies’ inability to obtain actionable intelligence—information that would help prevent attacks on America, as well as information that would actually lead to capturing or killing other terrorists who were threatening our nation. “We need to hustle to come up with a strategy to deal with this person,” President Bush said regarding Zubaydah.
In answer to the president’s unstated reasons for his sense of urgency, the CIA developed a series of procedures that came to be known as “enhanced interrogation techniques,” procedures beyond those allowed in the US Army Field Manuals. With the Justice Department in the lead, the lawyers were immediately asked to look carefully at these procedures because of prohibitions under domestic and international laws against using torture.
Contrary to reports in the media and in blogs, from the earliest days following 9/11, President Bush emphatically declared that the United States would not torture captured terrorists under any circumstances, not in secret CIA sites, not at Guantanamo Bay, not anywhere. Unlike our enemies, President Bush had emphatically stated that America would treat our enemy captives humanely, so we wanted to make sure that the enhanced interrogation methods our CIA was hoping to use did not violate domestic or international laws as they applied to the United States.
Since the Church Committee investigations of the mid-1970s, most spies and intelligence agents worked warily under the specter of the committee’s report. The Church Committee—which took its name from its chair, Senator Frank Church of Idaho—ordered investigators to the CIA, FBI, and NSA to look for wrongdoing. The committee found what it was looking for, including the NSA’s original Operation Minaret, a surveillance program put in place by President Lyndon B. Johnson in 1967 that resulted in spying, wiretapping, and eavesdropping electronically on opponents of the Vietnam war, civil rights activists, and others critical of US policies. In addition to tracking bona fide criminals and potential terrorists, the committee discovered that US intelligence agents had been watching people ranging from Martin Luther King Jr. to Washington Post satirist Art Buchwald to Muhammad Ali.
The investigators also discovered CIA and FBI domestic spying that infiltrated and sought to disrupt black activist groups in hopes of pitting them against one another, as well as foreign spying that encouraged assassination plots against Fidel Castro. Concerns over the government looking into American citizens’ private lives as well as questionable conduct in our foreign intelligence activities led to a number of reforms, including the enactment of the FISA law and the creation of the FISA Court. The conclusions and recommendations of Senator Church’s committee provided a constant backdrop and sounding board for everything the CIA, FBI, and NSA did from that time to today.
So when we began talking about interrogation techniques that would help agents get information out of someone like Zubaydah, many agents were wary of aggressive, potentially controversial actions. They wanted assurances they would not be prosecuted for torture. Although this was an issue that primarily concerned the CIA and DOJ, because of the sensitivity of torture issues and President Bush’s clear directive that the United States would not engage in torture, I became involved in many of the discussions of the legal analysis of certain techniques. I, too, worried that no matter what we did, or how carefully we proceeded, we were likely to be second-guessed and criticized.
I wrestled with how much detail I—or anybody else—should tell the president about specific interrogation techniques. On one hand, if we didn’t do this right, it could severely hurt his presidency. Some people might say, “Are you kidding? This is exactly the kind of issue and decision that only the president of the United States should make.�
�� On the other hand, part of my job was to protect the presidency, as well as President Bush himself. Moreover, Andy Card expected me to keep controversial issues out of the White House unless necessity demanded that the president know of certain facts or where information was necessary to make a decision. Layered on top of these considerations was the president’s directive: do whatever is necessary and consistent with our laws to protect America.
On April 18, 2002, I talked to the president about Zubaydah. He assured me he had instructed CIA director George Tenet not to torture Zubaydah. Although I had been present at all NSC and principals committee meetings, I had not heard these specific directions to George Tenet. I assumed that Tenet had discussed Zubaydah with President Bush during one of his many briefings in the Oval Office. George met with the president almost daily to review threats that had come in over the past twenty-four hours and what we were doing to prevent attacks. The threat matrix put together by the FBI and the CIA and given to the president every day in his Presidential Daily Briefing (PDB) was ominous. But that made getting information from Zubaydah about impending attacks even more important.
I told the president that to protect him and his presidency, we would not inform him in specific terms about various interrogation techniques, but we would reassure him that the techniques were effective, that the lawyers were continually examining CIA activities to confirm that they were lawful, and that we would not engage in any conduct that would be in violation of our domestic anti-torture statute or the CAT. The president wanted to agree with that approach, but he seemed to be torn. He was not the sort of person who wanted to be oblivious to the facts or kept in the dark about what was going on, but he understood the precarious nature of the interrogation program.
During the next few weeks, administration lawyers poured themselves into figuring out what we could and couldn’t do. John Yoo, who had the lead at Justice and was working on providing the legal guidelines, came to my office from time to time to share his most current thinking about the issues with John Rizzo, a senior lawyer with the CIA, Tim Flanigan, David Addington, and me. My charge to John was direct: “I want you to provide guidance to the CIA as to the scope of the anti-torture statute. The analysis should guide the administration away from conduct that constitutes torture.” John understood the assignment and what was at stake.
On July 17, I had a conversation with John about his draft opinion on the interrogation methods that included a discussion of the president’s commander in chief authority. I expressed my concern about possible interpretations and suggested that he discuss the application of the anti-torture statutes to specific techniques desired by the CIA. I also was concerned about tying the president to the discussions about torture. I really didn’t want the president making a commander in chief determination that the techniques were necessary. I told John that while the opinion should certainly discuss presidential constitutional authority, I wanted the opinion addressed to the CIA. They were the agents who needed the immediate guidance, and they were the ones who would be dealing with other terrorists like Zubaydah that we hoped we would be apprehending soon. They were also most at risk of future prosecutions.
The following day, I talked by phone with Attorney General Ashcroft regarding the legal issues. I was reassured by a comment Ashcroft made that he wanted to talk to his folks about the issues under the anti-torture statute. That showed me that the advice I was receiving from John Yoo was not simply Yoo’s alone, but actually reflected the views of the Department of Justice leadership. Ashcroft also expressed concern about describing specific techniques and providing safe harbors in advance of the conduct.
“I understand that the CIA really wants approval of specific techniques,” I told the AG. “I will defer to you, but time is of the essence.”
The following afternoon, I spoke again with Ashcroft, and he informed me that the DOJ could give a fact-specific opinion. “Who was involved in the discussions at Justice?” I asked him.
“Larry Thompson, Michael Chertoff, John Yoo, Pat Philbin, and Adam Ciongoli,” John replied. That was encouraging. These individuals whom Ashcroft mentioned—the deputy attorney general, the head of the criminal division, the other DOJ lawyers—were fine attorneys, some of the brightest in government, and deeply committed to protecting our country. I was satisfied that the opinion had received the appropriate level of review and supervision.
On July 23, I met with the president and gave him an update on the legal analysis. I told him DOJ was nearing the completion of its work on the matter. He responded that he was comfortable with the administration going forward with the enhanced techniques.
I continued to resist explaining the techniques, and the president agreed that he did not need to know specifics; he just wanted to know that the techniques were effective and lawful. “If not,” he said, “we won’t do it.” He appeared pleased we would be able to use enhanced techniques to get information from Zubaydah in a manner consistent with US domestic and international obligations.
The following morning, John Yoo told me the attorney general had signed off on the opinion. DOJ’s approval would be communicated to the CIA. John anticipated that the agency would begin the approved techniques on the basis of oral advice from DOJ, with the written opinion to follow shortly.
On July 26, I spoke to John again around 4:30 in the afternoon. “The procedures are lawful,” John said. Ashcroft, Larry Thompson, and Michael Chertoff had all signed off on the opinion, he reported.
The CIA would only apply enhanced techniques to high-value detainees approved by a senior CIA official, after a determination that the detainee likely possessed knowledge of an impending attack. An interrogation profile developed by a medical doctor and a psychologist would be developed for each detainee.
As we had anticipated, Zubaydah was resistant to efforts to get information under the usual methods prescribed in the Army Field Manuals. So our CIA interrogators had asked for permission to use enhanced interrogation techniques to get information out of him. A medical team would be on-site to ensure that Zubaydah suffered no severe physical or mental pain or suffering.
Nevertheless, despite these precautions and all the work of the lawyers, John and I knew that these techniques would invite criticism and scrutiny. The International Criminal Court (ICC) was originally proposed in the 1990s as a court for crimes against humanity, genocide, and war crimes. The United States withdrew from the jurisdiction of the court early in the Bush administration because the court could prosecute Americans without regard to their constitutional rights. The ICC would likely launch an investigation. While I trusted the legal judgment of the senior leadership at Justice, I remained worried about the political and legal fallout. To reassure myself about the advice from Justice, I studied the history of the ratification of the CAT and the US anti-torture statute. While some in the European Union and human rights groups wanted a lower threshold of pain, it was clear to me that the legitimate international standard was higher, consistent with what we had adopted, requiring pain that was “excruciating” and “agonizing.” I knew there would be public pushback and I was concerned about that, but my job was to ensure the president received the correct legal advice, unshaded by fear of criticism or personal bias. He could decide to ignore it if he was uncomfortable with the legal standard.
We anticipated that there would be so-called legal experts, university professors, civil liberties groups, and foreign countries—both enemies and allies—who would view the use of these techniques as a violation of international law, based on their own applicable legal standards. The discussion of torture would undoubtedly become muddled with conduct regarded as “cruel, inhumane, and degrading.” But even if we were to judge our techniques by this lower standard, they would arguably still be lawful. We had not criminalized cruel, inhumane, and degrading treatment, but the United States had clearly announced that the lower standard of cruel, inhumane, and degrading would be only “those acts that shock the conscience”8 in the context of
surrounding circumstances.
John Yoo was fearless and I appreciated his intestinal fortitude; I also admired the attorney general and the lawyers at Justice for their courage. They could have shaded their opinion to protect themselves, but they were more concerned about lawfully protecting American lives than their own reputations. We were about to head down a dark, lonely road, one riddled with landmines and other hidden dangers.
At 5:30 that day, I met with Andy Card and George Tenet about Zubaydah. George was ready to go forward with the interrogation. He believed it was important that we get the information the al-Qaeda operative possessed. I reminded him that what we were doing would invite scrutiny that would surely escalate when our actions became public one day. It was an eventuality that he no doubt had considered over and over in his mind.
George had been the director of the CIA and the deputy director before that, long before many of us in the Bush administration had come to town. As much as anybody, Tenet understood what was at stake, both the dangers to us of being persecuted, if not prosecuted, and the dangers to our country if we did not take the actions we were contemplating.
At 7:00 p.m., I walked over to the residence to tell the president about the interrogations talks. “With the DOJ opinion, there should be relatively little risk from a domestic law context if the techniques are administered according to the guidelines,” I told him, “but I can give you no assurance that there will not be a prosecution or attempted prosecution of the agents, or even of you, yourself, by a foreign country.” I also told him about my conversation with George Tenet. “He will probably call you in the morning,” I said, “and tell you how important it is to get this information.” Tenet was serious about the need to do this now that the Justice Department had concluded that the interrogations were legal.
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