human rights John Kiriakou Original Prisoner's Rights

John Kiriakou on Abu Zubaydah and Unethical CIA Practices

As negotiations for Abu Zubaydah resumed this week, the CIA agent who captured him highlights the unethical and illegal issues of the arrangement.
 Protester wearing a black hood holds a portrait of detainee Abu Zubaydah during a demonstration in London on Saturday. Photograph: Thomas Krych/Sopa Images/Rex/Shutterstock

By John Kiriakou / Original to ScheerPost

A few weeks ago, I wrote in ScheerPost about the capture and torture of Abu Zubaydah, the Palestinian whom the CIA wrongly believed was a leader of al-Qaeda and one of the masterminds of the September 11 attacks.  Abu Zubaydah’s attorneys are in the process of negotiating a plea deal with the Defense Department that would, apparently, have him serve either 30 years or the rest of his life in Guantanamo.  Why seek such an arrangement, especially when Abu Zubaydah has never been charged with a crime?  It’s because the only thing that the government has to hold over Abu Zubaydah’s head is the threat to send him to the federal Supermax prison in Florence, Colorado.  He doesn’t want to live out his days there.  He’d rather stay at Guantanamo.  It’s warmer there, and he gets a lot of sunshine.  Life is relative.  The negotiations continue this week.

I led a team in March 2002 that was responsible for the capture of Abu Zubaydah in Faisalabad, Pakistan.  He was severely wounded and eventually turned over to the FBI for interrogation at a secret prison controlled by the CIA.  That interrogation actually produced actionable intelligence.  But the CIA hated that the FBI was in charge, and on August 1, 2002, the CIA and two contract psychologists, James Mitchell and Bruce Jessen began to torture him.  The torture produced nothing.  What it did do, though, was to put Abu Zubaydah in a legal twilight zone that continues 20 years later.  First, during torture, Abu Zubaydah told his interrogators anything and everything he thought they wanted to hear whether it was true or not.  The information was useless.  He had already given the truths to the FBI.  The CIA then wasted untold resources and months of precious time passing the lies to analysts to sort through.  More importantly, because of the torture, none of the information that Abu Zubaydah revealed under torture could be used against him in court, even in a stacked military tribunal in Guantanamo.  The CIA had blown the case.  But that didn’t necessarily help Abu Zubaydah.

Abu Zubaydah has practically no rights in the so-called legal system in the United States.  He is incarcerated in Guantanamo and will likely be there for the rest of his life.  How is this legal?  How is it ethical?  It’s not.  But the CIA, the FBI, the Justice Department, and the Pentagon are powerful entities, and the courts have knelt before them.  What did the Senate Select Committee on Intelligence have to say about it?  And why has nothing been done?

First, the problem with the torture techniques used on Abu Zubaydah was that, the opinions of George W. Bush-appointed Justice Department attorneys notwithstanding, they were specifically prohibited by law.  The Federal Torture Act, 18 U.S. Code § 2340, clearly defines torture:

  1. “torture means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
  2. “Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
    • the intentional infliction of threatened infliction of severe physical pain or suffering;
    • the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
    • the threat of imminent death; or
    • the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
  3. “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

The remainder of the Torture Act could not be any more clear:

(a) Offense.—

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.—There is jurisdiction over the activity prohibited in subsection (a) if—

  1. the alleged offender is a national of the United States; or
  2. the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c) Conspiracy.—

A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

Another problem was that CIA officers did not always adhere strictly to the techniques.  At least two prisoners were killed by CIA officers (or persons acting on behalf of the CIA) during interrogations.

And it wasn’t just U.S. law that prohibited what the CIA was about to do.  It was also the United Nations.  The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment—of which the United States was the primary author and an original signatory—specifically defined and banned anything approaching “enhanced interrogation techniques.  Article 1 states, 

“torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity.”

Meanwhile, the CIA, fully cognizant of what it was getting into, was making contingency plans for Abu Zubaydah’s potential death in custody.  Senate investigators reported on a July 15, 2002 cable to CIA headquarters from the detention site saying, 

“If [Abu Zubaydah] develops a serious medical condition which may involve a host of conditions including a heart attack or other catastrophic type of condition, all efforts will be made to ensure that proper medical care will be provided to [him’.  In the event [Abu Zubaydah] dies, we need to be prepared to act accordingly, keeping in mind the liaison equities involving our hosts.”

If he were to die in custody, the cable said, Abu Zubaydah would be cremated and scattered.  It went on,

“…regardless which [disposition] option we follow, however, and especially in light of the planned psychological techniques to be implemented, we need to get reasonable assurances that [Abu Zubaydah] will remain in isolation and incommunicado for the remainder of his life.”

CIA headquarters responded similarly.

“There is a fairly unanimous sentiment within HQS that [Abu Zubaydah] will never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released.  While it is difficult to discuss specifics at this point, all major players are in concurrence that [Abu Zubaydah] should remain incommunicado for the remainder of his life.  This may preclude [Abu Zubaydah] from being turned over to another country, but a final decision regarding his future incarceration condition has yet to be made.”

On July 24, 2002, Attorney General John Ashcroft verbally approved the use of all the CIA torture techniques except the waterboard, according to senate investigators.  The interrogation team elected to wait until the waterboard was approved, two days later, before using any of the techniques on Abu Zubaydah.  

Legal cover was still on the minds of the CIA’s leaders. On August 3, 2002, headquarters sent a cable to the interrogation team at the detention site, saying that the Justice Department’s decision to allow the use of torture was “predicated upon the determinations by the interrogation team that Abu Zubaydah continues to withhold critical threat information.”  In other words, the entire torture program was based on whether or not the torturers reported back to headquarters that it was working.

The problem, however, was that there was a very basic disconnect between the goals of CIA headquarters and the goals of the CIA interrogators.  Headquarters wanted the details of al-Qaeda’s next attack against the United States.  The interrogators believed that the objective of the torture techniques was not to persuade Abu Zubaydah to give up threat information.  It was to confirm that Abu Zubaydah did not have threat information to give up.  Senate investigators later noted that, “the interrogation team later deemed the use of the CIA’s enhanced interrogation techniques a success, not because it resulted in critical threat information, but because it provided further evidence that Abu Zubaydah had not been withholding the aforementioned information from the interrogators.”  This was allowing the fox to guard the henhouse.  If Abu Zubaydah had had threat information, headquarters would have demanded that the torture continue to force him to give it up.  If he hadn’t had threat information, the detention site interrogators would have demanded that the torture continue to prove that he didn’t have it to give up.

Before the torture began, however, the CIA needed a little more cover.  CIA leaders began preparing talking points about the torture program, including waterboarding, to be used to brief President Bush.  According to senate investigators, White House Counsel Alberto Gonzales later eliminated any mention of waterboarding, and in the end, the briefing never took place.  Instead, an NSC attorney told CIA Director George Tenet’s chief of staff that, “the DCI (Director of Central Intelligence) had policy approval to employ the CIA’s enhanced interrogation techniques.”  The CIA’s leadership chose to just assume that the president understood the program.

CIA Acting General Counsel John Rizzo believed a year later, in July 2003, that the president still had not been briefed on the program, but that he would, eventually, “as part of the regular annual (covert action) review.”  This was never done.  In May 2004, CIA Inspector General John Helgerson made a recommendation to Tenet that he should, “Brief the president regarding the implementation of the Agency’s detention and interrogation activities pursuant to the MON (Memorandum of Notification) of 17 September 2001 or any other authorities (permissions), including the use of EITs (Enhanced Interrogation Techniques) and the fact that detainees have died.  This Recommendation is significant.”  Tenet’s response was to tell the Inspector General to go jump in a lake.  He noted to the Inspector General that, “the DCI will determine whether and to what extent the president requires a briefing on the Program.”  But informed president or uninformed president, the CIA had what it needed in mid-2002—policy approval.

On August 3, 2002, CIA headquarters told the detention site that its officers had permission to begin torturing Abu Zubaydah.  But the rules were clear, at least in the beginning.  Only CIA contract psychologists Mitchell and Jessen were to have direct contact with him.  Everybody else, including medical personnel and other interrogators with whom he had had contact, were to be kept on the sidelines.  

Abu Zubaydah’s torture began in earnest on August 4, 2002.  From that date through August 23, according to senate investigators, he was subjected to the entire host of techniques.  At first, he was stripped naked, shackled, and hooded.  Then without saying a word, his interrogators placed a rolled towel around his neck and slammed him against a concrete wall.  This action, on the very first day of the torture, was a violation of the Justice Department guidelines and was illegal.  The interrogator later acknowledged that the collar was used to slam Abu Zubaydah against a concrete wall, not a cushioned plywood wall, but no action was ever taken against him.

Senate investigators continued,

“The interrogators then removed the hood, performed an attention grab, and had Abu Zubaydah watch while a large confinement box was brought into the cell and laid on the floor.  A cable states Abu Zubaydah was ‘unhooded and the large confinement box was carried into the interrogation room and p[l]aced on the floor so as to appear like a coffin.’  The interrogators then demanded detailed and verifiable information on terrorist operations planned against the United States, including the names, phone numbers, email addresses, (and locations of) weapons caches, and safe houses of anyone involved.  CIA records describe Abu Zubaydah as appearing apprehensive.  Each time Abu Zubaydah denied having additional information, the interrogators would perform a facial slap or face grab.”

But Abu Zubaydah didn’t have any actionable threat information, and he couldn’t provide much of what the interrogators wanted.  

The interrogators had no intention of backing off.  At 6:20 pm on August 4, 2002, the senate investigators reported, Abu Zubaydah was waterboarded for the first time.  “Over a two-and-a-half hour period, Abu Zubaydah coughed, vomited, and had ‘involuntary spasms of the torso and extremities’ during waterboarding.’”

The questions from interrogators were variations on a theme.  Where is the next attack?  But this was the only question they were authorized to ask.  One of the interrogators later told the CIA Inspector General that his “instructions from [the detention site Chief of Base] were to focus only on one issue, that is, Abu Zubaydah’s knowledge of plans to attack the U.S.”

Meanwhile, the waterboarding continued.  In an email to the leadership of the CIA’s Office of Medical Services entitled, “And So It Begins,” a medical officer on-site reported that “The sessions accelerated rapidly and progressed quickly to the water board after large box, walling, and small box periods.  [Abu Zubaydah] seems very resistant to the water board.  Longest time with the cloth over his face so far has been 17 seconds.  This is sure to increase shortly.  NO useful information so far…He did vomit a couple of times during the water board with some rice and beans.  It’s been 10 hours since he ate so this is surprising and disturbing.  We plan to feed only Ensure for a while now.  I’m head[ing] back for another water board session.”

By August 9, 2002, the interrogation team reported to CIA headquarters that they had come to a “collective preliminary assessment” that it was “highly unlikely” that  Abu Zubaydah “had actionable new information about current threats to the United States.”  That didn’t stop the interrogation, however, despite this “preliminary assessment.”  The constant torture, using all of the CIA’s techniques, continued 24 hours a day until August 20.  By now Abu Zubaydah was psychologically broken.  Daily cables from the detention site to CIA headquarters reported that Abu Zubaydah frequently “cried, begged, pleaded, and whimpered,” but continued to deny that he knew anything about an imminent threat to the United States.  The interrogators were no closer to foiling a terrorist plot—or even to determining whether there was a terrorist plot—than they were when Abu Zubaydah was first captured.

At the same time, some CIA personnel at the detention site objected to what they were seeing.  Several sent a cable to CIA headquarters saying that they believed the torture techniques were “approaching the legal limit.”  The cable drew a swift rebuke from Counterterrorism Center Director Jose Rodriguez.

“Strongly urge that any speculative language as to the legality of given activities or, more precisely, judgment calls as to their legality vis-à-vis operational guidelines for this activity agreed upon and vetted at the most senior levels of the agency, be refrained from in written traffic (email or cable traffic.)  Such language is not helpful.”

“Such language” also created a paper trail that could be subpoenaed at some point in the future or could be the target of a Freedom of Information Act request.

With that said, Rodriguez wanted his headquarters personnel to understand that what the interrogation team was doing to Abu Zubaydah was legal.  Several headquarters officers planned a visit to the detention site to observe the torture personally.  The torture sessions were being taped for headquarters officers to watch at their leisure, but some wanted to see the process in real life.  In August 2002, a group of headquarters officers, including a representative of the Counterterrorist Center’s (CTC) General Counsel and the deputy chief of Alec Station, CTC’s Osama bin Laden unit, went to the detention site and watched as Abu Zubaydah was tortured, including on the water board.

Satisfied that the interrogation team was doing exactly what it was supposed to, headquarters ordered that the torture continue.  Senate investigators said the interrogators reported that at times during the waterboarding, Abu Zubaydah was “hysterical” and “distressed to the level that he was unable to effectively communicate.”  The waterboarding “resulted in immediate fluid intake and involuntary leg, chest, and arm spasms” and “hysterical pleas.”  In one incident, Abu Zubaydah nearly drowned.  He became “completely unresponsive, with bubbles rising through his open, full mouth” and he only regained consciousness after the intervention of the medical team.

Some CIA officers at detention site Green were appalled by what they saw.  Senate investigators found that many at the site objected:

August 5, 2002:  “Today’s first session…had a profound effect on all staff members present…it seems the collective opinion that we should not go much further…everyone seems strong for now but if the group has to continue… we cannot guarantee how much longer.

August 8, 2002:  Several on the team profoundly affected…some to the point of tears and choking up.

August 9, 2002:  “’Two, perhaps three (personnel) likely to elect transfer away’ from the detention site if the decision is made to continue with the CIA’s enhanced interrogation techniques.’

August 11, 2002:  Viewing the pressures on Abu Zubaydah on video ‘has produced strong feelings of futility (and legality) of escalating or even maintaining the pressure.’  Per viewing the tapes, ‘prepare for something not seen previously.”

A week or so later, the torture stopped almost as quickly as it had begun.  Detention site personnel offered a conclusion to headquarters:  Abu Zubaydah had been truthful, and he had not had any new terrorist threat information.  The torture was for nothing.  It produced no actionable intelligence.  It disrupted no new attacks.  It saved no American lives.

Furthermore, the most important intelligence that Abu Zubaydah revealed came before he was tortured, although the number of intelligence reports produced from his interrogation sessions before and during the torture were roughly equal.  A CIA after-action report uncovered by senate investigators found that, “During the months of August and September 2002, Abu Zubaydah produced 91 intelligence reports, four fewer than the first two months of his CIA detention.  CIA records indicate that the type of intelligence Abu Zubaydah provided remained relatively constant prior to and after the use of the CIA’s enhanced interrogation techniques.  According to CIA records, Abu Zubaydah provided information on ‘al-Qaeda activities, plans, capabilities, and relationships,’ in addition to information on ‘its leadership structure, including personalities, decision-making processes, training, and tactics.’”

Indeed, senate investigators found that “CIA documents identified the ‘key intelligence’ acquired from Abu Zubaydah as information related to suspected terrorists Jose Padilla and Binyam Mohammad, information on English-speaking al-Qaeda member Jaffar al-Tayyar, and information identifying Khalid Sheikh Muhammad as the mastermind of the September 11, 2001 attacks, who used the alias ‘Mukhtar.’  All of this information was acquired by FBI special agents shortly after Abu Zubaydah’s capture.”  None of it came as a result of the torture techniques.

Cold, hard facts notwithstanding, the CIA told the National Security Council that the torture techniques “were effective and were producing meaningful results.”  It was a lie.  At the same time, Mitchell and Jessen reported to headquarters that the interrogation program was a success.  They recommended that, “the aggressive phase at [the detention site] should be used as a template for future interrogations of high value captives,” not because the program produced useful information, according to senate investigators, but because “their use confirmed that Abu Zubaydah did not possess the intelligence that CIA headquarters had assessed Abu Zubaydah to have.”

There was no Agency “hot wash” to discuss lessons learned.  There was nothing in CIA cable traffic to indicate regret that a man had been tortured for no apparent reason.  There was no acknowledgment even to the president or the Congressional oversight committees that the torture had not produced intelligence.  Instead, the detention site’s leadership recommended to headquarters that psychologists “familiar with interrogation exploitation, and resistance to interrogation,” most likely a reference to Mitchell and Jessen, “should shape compliance of high value captives prior to debriefing by substantive experts.”

At the same time that the detention site was concluding that Abu Zubaydah hadn’t provided any actionable intelligence, CTC analysts were writing in the president’s Daily Brief (PDB) in October 2002 that he was still withholding “significant threat information,” including information on al-Qaeda operatives in the United States.  The PDB article made no mention of the torture techniques, nor did it say that CIA officers in the field believed that Abu Zubaydah was, in fact, cooperative and not withholding information.  The article simply perpetuated the lie.

Abu Zubaydah was finally moved to a series of secret prisons around the world, the locations of which remain classified, although they have been speculated on at length in the press.  On September 5, 2006, Abu Zubaydah was transferred to U.S. military custody and sent to the prison at Guantanamo, Cuba.  He is still incarcerated there.  He has never been charged with a crime.

John Kiriakou

John Kiriakou is a former CIA analyst and case officer, former senior investigator for the Senate Foreign Relations Committee, and former counterterrorism consultant. While employed by the CIA, he was involved in critical counterterrorism missions following the terrorist attacks of September 11, 2001, but refused to be trained in so-called “enhanced interrogation techniques.” After leaving the CIA, Kiriakou appeared on ABC News in an interview with Brian Ross, during which he became the first former CIA officer to confirm that the agency waterboarded detainees and label waterboarding as torture. Kiriakou’s interview revealed that this practice was not just the result of a few rogue agents, but was official U.S. policy approved at the highest levels of the government.

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