(The Intelligence Daily) -- Two weeks before U.S. and Pakistani intelligence agents captured Abu Zubaydah, an alleged top al-Qaeda official, in Pakistan in March 2002 and whisked him off to a secret CIA "black site" prison in Thailand where he was brutally tortured, the Department of Justice 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.
The March 13, 2002 memo specifically offered up ways in which government officials could avoid legal liability if prisoners like Zubaydah were tortured.
"To fully shield our personnel from criminal liability, it is important that the United States not enter in an agreement with a foreign country, explicitly or implicitly, to transfer a detainee to that country for the purpose of having the individual tortured," the memo says. "So long as the United States does not intend for a detainee to be tortured post-transfer, however, no criminal liability will attach to a transfer. Even if the foreign country receiving the detainee does torture him."
The memo was signed by Jay Bybee, then an assistant attorney general in the Justice Department's Office of Legal Counsel (OLC), and was released in April along with seven other previously secret OLC memorandums.
Just a little more than a month before, on Feb. 7, 2002, Bush had signed an executive order that that excluded "war on terror" suspects from Geneva Convention protections. But the March 13, 2002 memo went even further than Bush's action memorandum. The March 13, 2002 memo said prisoners detained outside the U.S. were not protected by U.S. laws outlawing torture or against international treaties banning torture. The treaty, the Convention Against Torture, was signed by President Ronald Reagan in 1988 but not ratified by the Senate until a decade later.
"The United States participated actively and effectively in the negotiation of the Convention [against Torture]," the treaty says. "It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today."
Furthermore, the March 13, 2002 memo said a 1998 law that became U.S. policy prohibiting the federal government from turning over prisoners to countries where they may be tortured was not valid because it infringed upon the president's constitutional commander-in-chief powers.
Although his name is not on the memo, the text of the 34-page document is believed to have been written by John Yoo, a former deputy assistant attorney general at OLC, according to the book "Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy," by journalist Charlie Savage.
This memo is one of several that the Justice Department's Office of Professional Responsibility (OPR) has scrutinized in a four-year-old investigation into the legal work of Yoo and Bybee, according to legal sources at the DOJ who have seen a still classified report on the work of the OLC.
The memo, prepared for then Department of Defense General Counsel William Haynes, was the product of several high-level meetings that took place over the course of several weeks that Yoo and Bybee participated in along with senior Bush administration officials.
The legal opinion was not, legal sources said, the result of a question "asked and answered" but rather the result of Bybee and Yoo acting as advocates for administration policy and providing the legal framework so the White House could carry out its plans.
OPR has in fact probed whether Yoo and Bybee deliberately signed off on the March 13, 2002 memo and purposely misinterpreted long-standing case law simply to give the administration legal cover for extraordinary renditions.
Scott Horton, an expert on international law who helped prepare a report on renditions for NYU School of Law and the New York Bar Association, said the March 13, 2002 memo "is more evidence of deep engagement by OLC with the extraordinary renditions program."
"In fact the memo is designed to cut through the historical problems associated with rendition to establish its legality on the back of a lunatic view of commander-in-chief powers." Horton said. "If we had to boil the memo down to one sentence it would be 'the executive is the law, and no other law matters.' But that's the very proposition that the Founding Fathers went to war to overturn. In the course of the analysis, the Geneva Conventions are misapplied, authority that suggests the opposite conclusion is suppressed, the Constitution is misquoted and incorrectly interpreted to read into oblivion an express provision giving Congress final say over rules governing prisoners in wartime and the Convention Against Torture is also neutered.
"The themes touched upon make clear that the author fully understands how the extraordinary renditions program works. The prisoner is held outside of legal recourse in any legal system, or "disappeared." He is moved to a cooperating foreign state where he will be subjected to torture through a proxy arrangement with a foreign intelligence or police service.
"There is no prospect of the person ever being subjected to criminal charges, or accorded any rights under the laws of armed conflict. This is an effort to craft a legal black hole in which no law of any sort applies, and the executive is free to do whatever he likes. And that is what Thomas Jefferson and James Madison called 'tyranny.' I can easily see this document appended as an exhibit to a criminal indictment of its authors."
In testimony before Congress in April 2007, Michael Scheuer, the CIA official who ran the rendition program until his retirement from the agency in 2004, said U.S. Officials knew detainees would be tortured upon their transfer to specific countries even while receiving assurances that those countries would not torture prisoners captured in the "war on terror."
"If you accepted an assurance from any of the Arab tyrannies who are our allies that they weren't going to torture someone, I have got a bridge for you to buy..." Scheuer said in response to a question from a member of Congress.
According to intelligence and legal sources, the March 13, 2002 memo was specifically written to provide legal cover to the CIA as the agency prepared to send Zubaydah to another country to be tortured.
Shortly before the memo was drafted, U.S. intelligence and Pakistani authorities had coordinated intelligence activities after receiving numerous reports that Zubaydah, an alleged organizer of the failed plot to blow up Los Angeles International Airport in 1999, was hiding out in a Pakistan safe-house, according to previously published news reports and books.
Zubaydah's "journey through the U.S. government's secret prison system began on March 28, 2002, when U.S. and Pakistani authorities conducted a series of night raids at 14 suspected terrorist safe houses aimed at capturing him," according to a Dec. 17, 2002 report published in the Washington Post.
"The CIA designed the operation with Pakistan's intelligence service and special forces police, and the FBI had agents at each location to take custody of any physical evidence, officials said," The Post reported.
"Documents, cellphones and computers were seized at multiple sites. After a gunfight in a second-floor apartment in Faisalabad, Abu Zubaida was shot three times while attempting to leap from the roof of one apartment to another. Still unidentified, he was placed in the back of a pickup truck and taken to a local hospital. An FBI agent in the truck was the first to suggest he might be" Abu Zubaydah.
When Zubaydah's "identity was confirmed, the CIA station chief ordered him to be watched around the clock while U.S. officials made plans for intensive questioning at a secret site elsewhere, several officials said," the Post reported.
It was around this time that Haynes, the Defense Department counsel, asked OLC to prepare the memo sanctioning extraordinary renditions to countries that engage in torture, legal sources said.
Jameel Jaffer, director of the American Civil Liberties Union's National Security Project, said in an interview "it's intriguing that the March 13, 2002 memo was written only days before Zubaydah's transfer."
Additionally, on the day Zubaydah was captured, March 28, 2002, John Yoo prepared a still secret legal memo for William Taft at the State Department that is believed to contain information about Zubaydah's transfer to Thailand and the fact that his rendition was considered legal by OLC. The reason this memo was prepared, according to lawyers who used to work directly with Taft who I spoke with, is that former Secretary of State Colin Powell vehemently objected to the rendition program and the suspension of Geneva Conventions for prisoners captured in the "war on terror."
Jaffer, whose organization has been largely responsible for prying loose the secret OLC documents and is responsible for uncovering the existence of the March 28, 2002 memo, said, Yoo's memo to the State Department "suggests there was some consultation" about Zubaydah's rendition.
One day after Yoo wrote the still secret March 28, 2002 memo, the Department of Defense tapped a psychologist who worked on the military's Survival, Evasion, Risk, Escape (SERE) program, which was meant to prepare U.S. soldiers for abuse they might suffer if captured by an outlaw regime, not for use against prisoners.
Indeed, on March 29, 2002, one day after Zubaydah's capture, according to New Yorker reporter Jane Mayer's book "The Dark Side," James Mitchell, a military psychologist who was an expert in the use of SERE tactics, which included waterboarding, was hired to train CIA officers in the use of harsh interrogation methods specifically with regard to Zubaydah. According to Mayer's book, Mitchell told the CIA Zubaydah "had to be treated like a dog in a cage."
Even before 9/11, U.S. Intelligence officials had been actively trying to capture Abu Zuabaydah in hopes of obtaining valuable intelligence information from him about the inner workings of al-Qaeda.
In his book, "At the Center of the Storm", former CIA Director George Tenet wrote that he attended a meeting with Rice in May 2001 where Tenet discussed how Zubaydah planned to attack the US and Israel.
"For my regularly scheduled meeting with Condi Rice on May 30, [2001], I brought along [deputy CIA director] John McLaughlin, [then director of the CIA's counterterrorist center] Cofer Black, one of Cofer's top assistants, Rich B. (Rich can't be further identified here). Joining Condi were [former White House counterterrorism czar Richard] Clarke and [former CIA official] Mary McCarthy," Tenet wrote. "Rich ran through the mounting warning signs of a coming attack. They were truly frightening. Among other things, we told Condi that a notorious al-Qa'ida operative named Abu Zubaydah was working on attack plans."
McCarthy, it would later turn out, was ousted from the CIA in 2006 and accused of leaking word to the Washington Post about the CIA's secret overseas prisons where detainees such as Zubaydah were tortured.
Zubaydah was transferred to Thailand on March 31, 2002. At the prison site, he was subjected to the outlawed drowning technique known as waterboarding.
FBI officials objected to the methods CIA interrogators used against Zubaydah, according to previously released documents and testimony. To quell dissent, Yoo crafted another legal memo that specifically authorized waterboarding. The legal advice in that memo was also scrutinized by OPR.
In his book "The One Percent Doctrine," author Ron Suskind reported that President George W. Bush had become obsessed with Zubaydah and the information he might have about pending terrorist plots against the United States.
"Bush was fixated on how to get Zubaydah to tell us the truth," Suskind wrote. Bush questioned one CIA briefer, "Do some of these harsh methods really work?"
The waterboarding of Zubaydah was videotaped, but that record was destroyed in November 2005 after the Washington Post published a story that exposed the CIA's use of so-called "black site" prisons overseas to interrogate terror suspects.
John Durham, an assistant US attorney in Connecticut, was appointed special counsel earlier this year to investigate the destruction of that videotape as well as destroyed film on other interrogations. This week the DOJ reported that 92 videotaped interrogations, including those depicting Zubaydah being waterboarded, were destroyed.
On Monday, newly released, albeit heavily redacted, CIA documents from a March 2007 Combatant Status Review Tribunal 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 is tribunal hearing.
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