I my last post, I showed that the CIA asked DOJ to approve the use of mock burial, but DOJ refused. I noted that the ICRC report doesn’t appear to show that Abu Zubaydah was subjected to mock burial (though he was subject to confinement in both a small and a larger box).

But what if he was? What if, in the period before the torture memos, James Mitchell subjected Abu Zubaydah to mock burial, and DOJ later refused to give it retroactive approval?

After all, John Yoo specifically said that mock burial violates the torture statute. If he said that–and OPR has records–then what does that mean for those who authorized and carried out mock burial?

Abu Zubaydah’s “tiny coffin”

Both Ali Soufan and Abu Zubaydah have compared the small box used in AZ’s torture to a coffin. Michael Isikoff reports Soufan’s description:

At one point, Soufan discovered a dark wooden “confinement box” that the contractor had built for Abu Zubaydah. It looked, Soufan recalls, “like a coffin.”

Which is why, apparently, he interpreted James Mitchell’s threat to use it as mock burial.

And in The Dark Side, Jane Mayer reports that Abu Zubaydah referred to the small box they put him in as a “tiny coffin.”

Zubayda’s “hard time” began when he was locked into the “tiny coffin” for hours on end, which he described as excruciatingly painful. It was too small for him to stand or stretch out, so small he said he had to double up his limbs in a fetal position. Because of his recently healed injuries, he described this position as particularly agonizing, since it caused his wounds to reopen. He described the box as black, both inside and out, and said that it was covered in towels, which he thought was an effort to constrict the flow of air inside. While locked in the dark interior, he had no way of knowing when, if ever, he would be let out. [my emphasis]

Mayer attributes that particular phrase–”tiny coffin”–to Zubaydah’s conversations with the ICRC. But the phrase doesn’t appear in the ICRC report. Neither does AZ’s questions about whether he would ever be left out of the box.

Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow. Measuring perhaps in area 1M X 0.75m and 2 m in height. The other was shorter, perhaps only 1m in height.

[snip]

After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough to even sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs hald in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box, I think I may have slept or maybe fainted.

I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my fact and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe.

[snip]

[describing how things got better] The tall box was removed, but the short one remained in the room outside my cell, I think as a deliberate reminder as to what my interrogators were capable of.

So someone else has told Mayer that AZ compared this small box procedure to a “tiny coffin,” and that he didn’t know if he would ever get out, both descriptions that would support the notion that it was mock burial.

Update: Reader SS reminds me that Katherine Eban, who did some of the earliest work on Mitchell and Jessen, reported this:

As Zubaydah clammed up, Mitchell seemed to conclude that Zubaydah would talk only when he had been reduced to complete helplessness and dependence. With that goal in mind, the C.I.A. team began building a coffin in which they planned to bury the detainee alive.

A furor erupted over the legality of this move, which does not appear to have been carried out.

So it was described as a coffin by the torturers and it was the source of the legal concerns about the torture. Which leaves the question of whether it was or was not carried out. And the question of CIA continued trying to get this approved until just days before the Bybee Memos were completed.

The missing evidence

There is another possible source of that language: AZ’s own diaries. The diaries the government refuses to hand over to him, but in which we know he described the treatment he was subjected to.

And then there are the videotapes. If Mitchell conducted a mock burial, it would show up in the videotapes. Of course, it might appear on the videotapes that were blank by the time John Helgerson got to them, particularly since we know that the small box confinement happened just before some of the waterboarding.

OIG found 11 interrogation videos to be blank. Two others were blank except for one or two minutes of recording. Two others were broken and could not be reviewed. OIG compared the videotapes to [redacted] logs and cables and identified a 21-hour period of time, which included two waterboard sessions, that was not captured on the videotapes.

In AZ’s version, waterboarding closely followed the small box confinement, meaning it might appear in the 21-hour block of time that also includes those two waterboarding sessions.

And while we’re talking about missing evidence, surely Yoo had discussions about mock burial on those emails that have disappeared…

The OLC memos

Consider, too, how this would affect the development of the OLC memos. By April 11, CIA asked DOJ for torture approval. Several weeks later, James Mitchell threatened Abu Zubaydah with mock burial. Soufan told him that was torture. As Mayer describes:

[Mitchell] announced that the interrogators needed to get tougher. The FBI agents, according to one version of events, were so appalled they urged top FBI officials to have Mitchell arrested.

Fearful they would be implicated, and adamantly opposed to what Mitchell proposed doing, the FBI agents picked up and left. In the following days, reports of deliberate prisoner abuse reached the top rungs of the FBI, causing the Director, Mueller, to bar the Bureau’s personnel from participating in the CIA’s coercive interrogations.

[snip]

Before the FBI agents left, they relayed to their bosses an interesting exchange about torture they said they had with Mitchell. “We don’t do that,” they said they had protested. “It’s what our enemies do!” Mitchell, they said, denied that he was using torture. Instead, he referred oddly to its being all about countering “resistance.”

We know a little bit about what happened at DOJ from Glenn Fine’s investigation into torture.

[FBI Assistant Director of Counterterrorism Pasquale] D’Amuro said he discussed the Zubaydah matter with Director Mueller and later met with Michael Chertoff (then the Assistant Attorney General for the Criminal Division), Alice Fisher (at the time the Deputy Assistant Attorney General for the Criminal Division), and possibly David Kelley (who was then the First Assistant U.S. Attorney for the Southern District of New York) in Chertoff’s office in the Justice Department. D’Amuro said his purpose was to discuss how the FBI could “add value” by participating in the interviews of “highvalue detainees” because the FBI already knew the subjects so well. D’Amuro told the OIG that during the meeting he learned that the CIA had obtained a legal opinion from DOJ that certain techniques could legally be used, including sleep deprivation, noise, and constant light, and that the CIA had sought approval for a technique involving placing a cloth over a detainee’s face and dripping water so the detainee could not breathe. D’Amuro stated that Chertoff and Fisher made it clear that the CIA had requested the legal opinion from Attorney General Ashcroft.

The DOJ IG Report places this meeting some time in July or August, during the period when Yoo was busy working on the torture memo. The OPR report notes that sometime between July 13 and July 16, Chertoff asked Yoo to write CIA a letter refusing to give advance declination–basically, a promise that they would not prosecute anything involved with the torture program.

Some time between July 13, 2002 and July 16, 2002, Chertoff asked Yoo to draft a letter to the CIA stating that the Department does not issue pre-activity declination letters.

And the OPR report closely ties Chertoff’s refusal to give advance declination with the FBI’s unwillingness to participate in torture sessions.

[large redacted section describing a mid-July meeting about the memos]

In his OPR interview, Chertoff stated that he told group that in his view, it would not be possible for the Department to provide an advance declination. Rizzo confirmed, in his interview, that Chertoff flatly refused to provide any form of advance declination to the CIA. Although Bybee was not present at this meeting, he told us that he was aware that “there was some discussion with the criminal division over the question of providing advance immunity… [and that it] was not their practice, to provide that kind of advance [sic].”

According to several sources, [then FBI Chief of Staff Daniel] Levin stated that the FBI would not conduct or participate in any interrogations employing EITs, whether or not they were found to be legal, and that the FBI would not participate in any further discussions of this subject.

[long redacted section continuing discussion of meeting]

After Chertoff refused to give advance declination, Yoo met with Alberto Gonzales, Tim Flanigan, and David Addington. It appears they told him to accomplish the same goal–to give CIA a Get Out of Jail Free card–by including sections on whether the Commander-in-Chief can order torture, and what affirmative defenses torturers might use.

On July 24, 2002, Yoo gave Rizzo oral approval to use a number of techniques, but it appears from the redaction on PDF page 59, that he said DOJ would need more data from CIA on waterboarding and at least one other technique, which might be use of insects but is more likely mock burial. And, shortly thereafter, Yoo told Rizzo that getting an approval for mock burial would hold up approval for other things, like waterboarding.

At some point thereafter, according to Rizzo [redacted] OLC told the CIA that approval for the remaining techniques would take longer if [redacted--almost certainly mock burial] were part of the EIT program. Rizzo remembered Yoo asking how important the technique was to the CIA, because it would “take longer” to complete the memorandum if it were included.

Now, consider how the specific solution devised in a meeting with Addington and Gonzales matches up to what we know about the program. Ari Shaprio has reported that the CIA got approval early in Abu Zubaydah’s torture from the White House–specifically, Gonzales.

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.

Isikoff describes Soufan reporting the same thing.

He told him in April 2002 that the aggressive techniques already had gotten approval from the “highest levels” in Washington, says Soufan. The official even waved a document in front of Soufan, saying the approvals “are coming from Gonzales,” a reference to Alberto Gonzales, then the White House counsel and later the attorney general. (A lawyer for Gonzales declined to comment.)

And in Yoo’s first response to the OPR memo, Miguel Estrada repeatedly emphasized that Yoo’s analysis would only apply to torture personally authorized by the President.

The Bybee Memo started by considering whether the statute might be construed so as not to apply to the President, and only considered the constitutional question in the event the statute were deemed to apply and the President himself personally decided that particular interrogations that arguably violated it were warranted. Bybee Memo at 33-35 (discussing constitutional avoidance).

[snip]

In fact, OPR does not appear to dispute that the constitutional discussion was premised on potential actions the President might take personally, or that Professor Y00 conveyed this understanding to the CIA, but merely notes that Professor Y00 “admitted” that the memorandum itself “was probably not as explicit as it could have been.” D.R. 156. Yet the Bybee Memo signaled this understanding clearly enough for the sophisticated audience to which this discussion was addressed. The memo notes, for example, “[S]ection 2340A, as applied to interrogations of enemy combatants ordered by the President pursuant to his Commander-in-Chief power would be unconstitutional.” Bybee Memo at 39 (emphasis added); see also id. at 36 (“[C]ongress cannot compel the President to prosecute outcomes taken pursuant to the President’s own constitutional authority.”) (emphasis added); id at 38 [emphasis all original]

Yoo makes an insistent argument that he only argued that if President Bush, personally (emphasized repeatedly), authorized torture, then Congress couldn’t make him prosecute it.

And that is precisely what has happened.

Durham’s investigation

There’s one more detail that this scenario would explain. A recent torture tape FOIA included thirteen documents that, John Durham said, could not be turned over because they related to his ongoing investigation. With most of the documents, it is clear from the Vaughn Index how they relate to his investigation: 

  • An October 25, 2002 cable explaining “the security risks” if the videotapes are retained
  • Cables from December 2002 to January 2003, as CIA discusses how to shut down the black site and what to do with the videotapes
  • An undated email scheduling a meeting to discuss the destruction of the tapes (neighbor emails concern joint CIA-White House attempts, in February 2003, to respond to Jane Harman’s warning not to destroy the torture tapes)
  • An August 4, 2003 cable discussion of the “disposition” of the tapes; this would have been after Helgerson reviewed the tapes, found them not only incomplete, but also judged they showed the torturers had not followed the memos; at some point, too, Helgerson announced an investigation into the tapes themselves
  • Four cables from November 8 and 9, 2005, asking for permission to destroy the tapes and confirming their destruction
  • A late November 2005 “backgrounder” discussing the destruction of the tapes (presumably showing who was informed of the destruction)
  • An October 5, 2007 cable, copying the November 2005 destruction approval, that seems to be internal discovery of the problem

So these cables all seem to trace how the torturers tried to justify destroying the tapes, and who was in the loop in those discussions.

But the first of the cables identified by Durham as central to his investigation never made sense to me:

Date of Document: 4/27/2002

From: CIA/CIA

Subject: AZ Interrogations

Document Pages: 1

This document is a one-page email from a CIA officer to another CIA officer, with several additional CIA officers and attorneys copied. The email contains information relating to the interrogation of Abu Zubaydah, including information relating to classified counter-terrorism operations. The email also contains information relating to intelligence sources and methods and the identities of personnel engaged in counter terrorism operations. The document is withheld in part on the bases of FOIA exemptions b(1), b(3), b(6), and b(7)(A). The Agency was prepared to release this document in part, but Special Prosecutor Durham has claimed FOIA Exemption b(7) over the information the Agency proposed to release, which has resulted in the document being denied in full.

The email was written two weeks after they started taping the interrogations. It was written before–even according to Abu Zubaydah’s recall–they started waterboarding him. It’s too short to discuss much in detail.

But there are two potential things this email could be that would explain why it is central to Durham’s investigation. (Mind you, these are wildarsed guesses.) First, April 27 is around the time when Ali Soufan objected when James Mitchell threatened to use mock burial with Abu Zubaydah. Also, if a cable made it clear that Mitchell and others considered the small box to be part of mock burial, then the email would be a critical piece of evidence showing the use of it was considered by the torturers to be mock burial.

John Yoo says mock burial is torture

As I pointed out in my last post, the first draft of the OPR report makes it clear that John Yoo told them that mock burial violates the torture statute.

Although Yoo told us that he had concluded that the mock burial technique would violate the torture statute, he nevertheless told the client, according to Fredman and Rizzo, that he would “need more time” if they wanted it approved. [my emphasis]

Yet it’s possible that, by the time he wrote his memo, the torturers had already used it with Abu Zubaydah. If so, they likely did so with authorization from Alberto Gonzales–one of the two or three people who told Yoo to include a Commander-in-Chief defense in the Bybee One memo just as advance declination and mock burial were being excluded from it.