By Jason Leopold

A lengthy article published last weekend in the New York Review of Books suggests the systematic torture of at least one “high-value” prisoner at Guantanamo Bay took place a month before a legal opinion was drafted by a Justice Department office authorizing interrogators they could legally torture detainees.

The report would appear to undercut assertions made as recently as Sunday by former Vice President Dick Cheney that the brutal interrogations of prisoners was “done legally.”

“It was done in accordance with our constitutional practices and principles,” Cheney told CNN in an interview.

But, according to a confidential report prepared in 2007 by the International Committee of the Red Cross (ICRC), which was leaked to UC Berkeley journalism professor and author Mark Danner, the “ill treatment” of 14 “high-value” detainees held at Guantanamo Bay “constituted torture.”

“In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment,” according to the ICRC report quoted by Danner. The ICRC’s responsibilities are to ensure compliance with the Geneva Conventions and to supervise treatment of prisoners of war. The organization’s report is seen as legally binding.

Last year, Cheney admitted in exit interviews that he personally “signed off” on the waterboarding of three alleged terrorist detainees and personally approved brutal interrogations of 33 others.

“I was aware of the program, certainly, and involved in helping get the process cleared, as the [Central Intelligence] Agency, in effect, came in and wanted to know what they could and couldn’t do,” Cheney said in an interview last December with ABC News. “And they talked to me, as well as others, to explain what they wanted to do. And I supported it.”

Danner reported that one of those “high-value” prisoners Cheney referred to, Abu Zubaydah, captured in March 2002 was subjected to sadistic interrogations as early as July 2002-well before John Yoo, a deputy assistant attorney general at the Justice Department’s Office of Legal Counsel prepared a legal memorandum authorizing what the Bush administration had referred to as “enhanced interrogation techniques.”

“Shortly after Abu Zubaydah was captured, C.I.A. officers briefed the National Security Council’s principals committee, including Vice President Dick Cheney, the national security adviser, Condoleezza Rice, and Attorney General John Ashcroft, in detail on the interrogation plans for the prisoner,” Danner wrote in an oped published in The New York Times Sunday. “As the interrogations proceeded, so did the briefings, with George Tenet, the C.I.A. director, bringing to senior officials almost daily reports of the techniques applied.

“At the time, the spring and summer of 2002, Justice Department officials, led by John Yoo, were working on a memorandum, now known informally as “the torture memo,” which claimed that for an “alternative procedure” to be considered torture, and thus illegal, it would have to cause pain of the sort “that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.” The memo was approved in August 2002, thus serving as a legal “green light” for interrogators to apply the most aggressive techniques to Abu Zubaydah…”

According to Zubaydah’s account to the ICRC:

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 [3 1/2 by 2 1/2 feet by 6 1/2 feet high]. The other was shorter, perhaps only [3 1/2 feet] in height. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face….

I was then put into the tall black box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside…. They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck. I think that the plywood was put there to provide some absorption of the impact of my body. The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury.”

Zubaydah’s account is identical to stories told to the ICRC by other detainees, all of whom were kept in isolation.

The Bush administration had long been suspected of torturing prisoners prior to receiving the legal justification to do so from Yoo. But the report in the New York Review of Books along with details of the highly confidential ICRC report is the most authoritative evidence to date to suggest that Yoo’s torture memo was written after the fact and only to provide legal cover for illegal acts already undertaken.

Further evidence suggesting that is the case comes courtesy of a report released last year by the Senate Armed Services Committee, in July 2002, Secretary of Defense Donald Rumsfeld and his legal counsel, William Haynes, solicited input from military psychologists about developing harsh methods that interrogators could use against detainees who were being held at the U.S. naval base at Guantanamo Bay, Cuba.

“Mr. Haynes was not the only senior official considering new interrogation techniques for use against detainees,” the report said. “Members of the President’s Cabinet and other senior officials attended meetings in the White House where specific interrogation techniques were discussed.”

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 [Zubaydah] 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.

Two weeks before Zubaydah was captured, on March 13, 2002, John Yoo and his boss, Jay Bybee, prepared a legal memorandum authorizing the Bush administration to engage in “extraordinary renditions,” which permitted the CIA to take prisoners to other countries that engage in torture.

On March 29, 2002, one day after Zubaydah was captured, 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, according to New Yorker reporter Jane Mayer’s book “The Dark Side.”

Mayer wrote that 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.”

Zubaydah was transferred to Thailand on March 31, 2002. At the prison site, he was subjected to the outlawed drowning technique known as waterboarding.

John B. Bellinger, legal adviser to then Secretary of State Condoleezza Rice’s legal adviser at the State Department, said they recalled participating in meetings with Ashcroft and Rumsfeld in July 2002 about an Army and Air Force survival training program called Survival, Evasion, Resistance and Escape (SERE), which was meant to prepare U.S. soldiers for abuse they might suffer if captured by an outlaw regime.
 
“SERE training techniques were designed to give our troops a taste of what they might be subjected to if captured by a ruthless, lawless enemy so that they would be better prepared to resist,” Levin said Thursday. “The techniques were never intended to be used against detainees in U.S. custody.”

It would appear that the harrowing details in the ICRC report, which begins with the “chapter headings on its contents page – “suffocation by water,” “prolonged stress standing,” “beatings by use of a collar,” “confinement in a box,” as quoted by Danner and applied to Zubaydah was part of the SERE program.

Zubaydah told the ICRC that CIA interrogators told him he was the first prisoner to be tortured in this way, “so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.”

That could explain how Yoo arrived at his legal definition of torture, which he stated that unless the amount of pain administered to a detainee results in injury “such as death, organ failure, or serious impairment of body functions” then the interrogation technique could not be defined as torture. Yoo based his opinion on an obscure 2000 health benefits statute.

A report prepared by the Justice Department’s Office of Professional Responsibility determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, according to sources who spoke on condition of anonymity because the contents of the report are still classified.

Bush’s line of defense could collapse if it were determined that the lawyers were colluding with administration officials in setting policy, rather than providing objective legal analysis. Already, extensive evidence exists, including Yoo’s own writings, showing that he participated in high-level administration meetings to discuss and set policy.

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, even though, Suskind says, Zubaydah’s value as a prisoner was exaggerated.

“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?”