End 22 Years Of Injustice

17 Years Since the Notorious Yoo-Bybee "Torture Memos," the U.S. Still Finds Itself Unable to Successfully Prosecute the Men It Tortured

Jay S. Bybee and John Yoo, who wrote and approved the notorious "torture memos" issued 17 years ago, on August 1, 2002.

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By Andy Worthington, August 4, 2019

August 1 was the 17th anniversary of a particularly grotesque and dispiriting event in modern U.S. history, one that has ramifications that are still being felt today, even though it was completely unnoticed — or ignored — by the U.S. media.

On August 1, 2002, Jay S. Bybee, then the Assistant Attorney General for the Office of Legal Counsel (OLC), the branch of the Justice Department responsible for advising the executive branch on what is, and what is not legal, signed off on two blatantly unlawful memos written by OLC lawyer John Yoo, which attempted to re-define torture, and approved its use on Abu Zubaydah, a prisoner of the "war on terror" that the U.S. declared after the terrorist attacks of September 11, 2001, who was being held in a secret prison — a "black site" — run by the CIA.

The memos remained secret until June 2004, when, in the aftermath of the Abu Ghraib scandal, when photos were leaked of torture in a U.S.-run prison in Iraq, one of the Yoo-Bybee memos was also leaked, provoking widespread disgust, although Yoo and Bybee escaped the criticism unscathed. For his services, Bybee was made a judge on the Ninth Circuit Court of Appeals, while Yoo kept his job as a law professor at the University of Berkeley.

It later emerged that Bybee’s successor, Jack Goldsmith, withdrew the memos, concluding that they contained "cursory and one-sided legal arguments," as he explained in his 2007 book The Terror Presidency, but in 2005 the new head of the OLC, Steven G. Bradbury, once more approved the use of torture via memos that were not released until 2009, under President Obama, when the second Yoo-Bybee was also released.

Elsewhere, journalists began investigating the torture program, first revealing its existence in November 2005, and as the scandal grew the Supreme Court delivered a powerful reminder to the government, in Hamden v. Rumsfeld, in September 2006, that Common Article 3 of the Geneva Conventions, which specifically prohibits torture, and cruel, humiliating and degrading treatment, applied to all prisoners in U.S. custody.

In response, in September 2006, George W. Bush announced that the "black sites," whose existence he had, until that point, strenuously denied, had in fact existed, but were now closed, as the 14 "high-value detainees" who remained in them (of the 119 men, at least, who were held in total) had been transferred to Guantánamo (although it later transpired that some aspect of the "black site" program still existed, as a handful of other prisoners who had been held in some sort of "black site" scenario ended up being transferred to Guantánamo in 2007 and 2008).

While all of this was unfolding, the FBI distanced itself from the torture program, claiming that they had withdrawn their agents from the "black site" where Abu Zubaydah had been held because of concerns about what one agent called the "borderline torture" to which he was being subjected, as was explained in a report about the FBI’s involvement in interrogations that was published by the Justice Department’s Office of the Inspector General in 2008.

In late July, or August 2002 — just before or around the time the "torture memos" were issued — FBI Counterterrorism Assistant Director Pasquale D’Amuro met with Michael Chertoff, who was, at the time, the Assistant Attorney General for the Justice Department’s Criminal Division.

The report stated that, after the meeting, D’Amuro met with FBI Director Robert Mueller and "recommended that the FBI not get involved in interviews in which aggressive interrogation techniques [i.e. torture] were being used." As the OIG report noted, "He stated that his exact words to Mueller were 'we don’t so that,' and that someday the FBI would be called to testify and he wanted to be able to say that the FBI did not participate in this type of activity." The report added that "D’Amuro said that the Director agreed."

Instead, so the story goes, while the CIA continued its torture program, the FBI only got involved again after the 14 remaining "high-value detainees" were transferred to Guantánamo, when, in response to the Bush administration’s belated recognition that the use of torture had made successful prosecutions unlikely, if not impossible, because evidence derived through the use of torture is inadmissible in U.S. courts, the authorities sent in "clean teams" of FBI agents to interrogate the prisoners without the use of torture.

The administration’s intention was to be able to claim that the prisoners in question had produced valid confessions without any mistreatment, although, from the beginning, lawyers for the prisoners asserted that the "clean team" process could not eliminate the lingering effects of torture.

Rather proving their point, last August, just before abruptly resigning as the chief judge of the military commission trial system, Army Col. James L. Pohl, 67, who was appointed in December 2008, and, since May 2012, had also been the judge for the case against the five men accused of involvement in the 9/11 attacks, refused to allow the government to "introduce any FBI clean team statement from any of the accused for any purpose" in the 9/11 trial.

Col. Pohl’s abrupt departure seemed to demonstrate how everyone ends up being worn down to the point of total exhaustion by the broken nature of the military commission system, in which prosecutors seek endlessly to hide evidence of torture, while defense attorneys insist that no fair trial can go ahead without it being publicly aired, and, nearly a year later, the controversy over the use of "clean team" evidence shows no sign of abating.

The "clean teams" weren’t so clean after all

On July 29, just three days before the "torture memo" anniversary, the New York Times published an article by Carol Rosenberg, "Lawyers Press Case That 9/11 Confessions Given to FBI Are Tainted," updating the story via claims by defense attorneys that "they have growing evidence that the FBI played some role in the interrogations during the years when the suspects were in the secret prisons by feeding questions to the CIA, and that the CIA kept a hand in the case after the prisoners were sent to Guantánamo," a situation that, they contend, constitutes "a blurring of lines that undercuts the assertion that the confessions extracted after torture could be legally separated from those given by [Khalid Sheikh] Mohammed, [the alleged mastermind of the 9/11 attacks] and his four alleged accomplices to the FBI at Guantánamo."

The defense team’s claims are based on documents that were turned over to them under court order, the first of which involved a December 2017 pre-trial hearing in the case of Mustafa al Hawsawi, a Saudi national accused of helping the 9/11 hijackers with travel and finances. In the hearing, which challenged whether al-Hawsawi should be tried in a federal court rather than by military commission, Abigail L. Perkins, a retired FBI special agent, said, as the Times described it, that "she had reviewed some of Mr. Hawsawi’s statements to the CIA before she interrogated him in January 2007 as a member of a clean team, four months after his September 2006 transfer to Guantánamo." She also said that, "while Mr. Hawsawi was held incommunicado at the CIA black sites, the FBI fed questions to CIA interrogators to ask their captives."

In addition, as the Times explained, "A partially redacted transcript of a national security hearing held last summer at Guantánamo also shows that FBI agents questioned Mr. Hawsawi during his time at a CIA black site but hid their affiliation from him." At that hearing, the Times also explained, a prosecutor "disclosed that information the government had given defense lawyers to prepare for trial commingled FBI and CIA information [from] the black sites, leaving the impression that it had all come from the CIA."

Responding to the revelations, Cheryl Bormann, the lawyer for Walid bin Attash, a Saudi national accused of serving as KSM’s deputy, said, "The clean teams were a fiction from the very beginning. There was no separation. It’s all one big team."

The decision about whether or not to accept the "clean team" evidence will now be decided by the commission’s new trial judge, Col. W. Shane Cohen of the Air Force, who took the job in June. After Col. Pohl’s resignation, prosecutor Jeffrey D. Groharing, who called the "clean team" interrogations "the most critical evidence in this case," persuaded the interim judge who took over from Col. Pohl, Marine Col. Keith A. Parrella, to reinstate them, but they will now be looked at again by Col. Cohen, in hearings that "could start in September and run until March 2020," pushing any trial date into 2021 at the earliest, 20 years after the 9/11 attacks.

Before these hearings, however, as the Times put it, Col. Cohen must also "decide the delicate question of how much testimony to take from former black site workers, including agents and contractors whose identities the CIA is shielding by invoking a national security privilege." The defense lawyers "want the judge to hold an exhaustive hearing on what went on in the CIA prison network between 2002 and 2006 as a basis for deciding whether the clean-team statements are admissible."

The hearings will probably be lively. In June, at Col. Cohen’s first hearing, James Harrington, who represents alleged 9/11 plotter Ramzi bin al-Shibh, "scolded" the judge for "referring to the FBI interrogations as 'cleansing' statements." Harrington insisted there was "an issue of voluntariness with respect to those statements," and, as the Times described it, "offered a longstanding defense argument that anything Mr. Mohammed and the other suspects said at Guantánamo was essentially 'a Pavlovian response' drilled into the defendants in their three and four years of torture at the black sites, where the lawyers contend that calculated abuse trained the defendants to later tell the FBI agents what the CIA had forced them to say."

Since the revelations last year, however, the defense lawyers’ position has now shifted to the approach noted above by Cheryl Bormann. As James G. Connell III, who represents KSM’s nephew, Ammar al-Baluchi, described it, also explaining that he has drawn up a list of 112 pretrial witnesses, "Our position is not that the CIA engaged in torture and other cruel, inhuman and degrading treatment and then the FBI did something different. Our position is that the United States, as a whole, had a plan, a scheme or a program — however you want to describe it — to obtain statements from Mr. al-Baluchi [and, by extension, the other 9/11 co-defendants] by torture and other cruel, inhuman and degrading treatment."

A long legal battle, then, still lies ahead. If only all those Bush administration officials mired in torture had thought of the legal problems they were creating when they first embarked on their brutal and pointless torture program 17 years ago …