By Jason Leopold

In April 2002, four months before the Justice Department issued its first “torture” memo, an FBI special agent who participated in the interrogation of the first “high-value” detainee captured after 9/11 reported that his treatment by the CIA amounted to “borderline torture,” according to a long forgotten report issued by the Department of Justice last year on the FBI’s role in detainee interrogations.

In recounting how the FBI agent verbally objected to the interrogation methods used against the detainee, Abu Zubaydah, sometime in April or May of 2002 Justice Department Inspector General Glenn Fine wrote in his report that the CIA had told another FBI agent, identified by the pseudonym “Gibson,” who was present for the interrogation that the techniques were approved “at the highest levels” of government.

In the book, The Dark Side, by New Yorker reporter Jane Mayer, “Gibson” and another FBI agent “Thomas” have been identified as Ali Soufan and Steve Gaudin.

It’s not clear whether “Gibson” (believed to be agent Goudin) was referring to high-level officials at the White House or CIA. However, last December Vice President Dick Cheney admitted in several interviews that he “signed off” on the waterboarding of three “high-value” prisoners and personally approved the harsh interrogations of 33 other detainees.

Cheney identified the three waterboarded detainees as al-Qaeda figures Abu Zubaydah, al Nashiri and Khalid Sheik Mohammed, the alleged mastermind of the 9/11 attacks. “That’s it, those three guys,” Cheney said in an interview with the right-wing Washington Times last December.

According to Fine’s report, “Thomas” (Soufan) did not see Zubaydah being waterboarded but witnessed other methods being used against him that he said were “borderline torture.”

Fine’s report would appear to seriously undercut assertions by Bush administration officials that “enhanced interrogation” techniques were applied to “high-value” detainees only after the Justice Department’s Office of Legal Counsel issued a memorandum in August 2002 authorizing the CIA to use 10 brutal methods in an attempt to extract information from prisoners about plans to attack the U.S.

There has been speculation for some time that Zubaydah’s torture preceded the Justice Department’s legal opinion. That question came up during a House Judiciary Committee hearing last year and former Attorneys General John Ashcroft and Michael Mukasey were both asked about it but said they did not know..

Zubaydah, who is believed to have arranged travel for al-Qaeda operatives, was captured after a gun fight in Pakistan in March 2002 and was whisked away to a CIA “black site” prison on March 28, 2002. “Thomas” (Soufan) and “Gibson” (Gaudin) tended to Zubaydah’s gunshot wounds, “even to the point of cleaning him up after bowel movements.”

The FBI claimed, according to Fine’s report, that Zubaydah had provided valuable intelligence via “rapport building” interviews less than a month after his capture while he was hospitalized and recovering from his wounds.

One of the first pieces of information he gave up to Soufan and Gaudin as a result of that approach was Khalid Sheikh Mohammed, the mastermind of 9/11. Zubaydah identified Mohammed from a photograph and referred to him as “Muktar.”

“When the CIA interrogators arrived at the site they assumed control of the interrogation,” Fine’s report states. “After observing the CIA use interrogation techniques that undoubtedly would not be permitted under FBI interview policies, one of the FBI agents expressed strong concerns about these techniques to the Counterterrorism Division at FBI Headquarters.”

In Mayer’s book, she suggested there was a turf war between CIA and FBI. She wrote that when CIA Director George Tenet learned that it was the FBI agents whose “rapport-building” approach resulted in valuable intelligence from Zubaydah he sent in a CIA team in April 2002, led by Dr. James Mitchell, a psychologist under contract to the agency, to take over the interrogations, which became more aggressive.

Mayer wrote that when Mitchell arrived he told Soufan and the other FBI agent that Zubaydah needed to be treated “like a dog in a cage.”

Mitchell said Zubaydah was “like an experiment, when you apply electric shocks to a caged dog, after a while he’s so diminished, he can’t resist.”

Soufan and the other FBI agent argued that Zubaydah was “not a dog, he was a human being” to which Mitchell responded: “Science is science.”

On Wednesday, a newly declassified timeline released by the Senate Select Committee on Intelligence helps flesh out the details a bit further about the lead up to the “enhanced interrogation” techniques, such as waterboarding, that was used against Zubaydah in August 2002.

According to the Intelligence Committee, in April 2002, while Zubaydah was still hospitalized and recovering from gunshot wounds, the CIA’s Office of General Counsel began to discuss with the John Bellinger, the legal adviser to the National Security Council, then headed by Condoleezza Rice, and the Justice Department’s Office of Legal Counsel, about “the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation.”

The CIA believed that as early as April 2002, just a few weeks after he was captured, Zubaydah withheld “imminent threat information during the initial interrogation sessions.”

But the allegation that Zubaydah concealed information about a looming attack on U.S. Soil was contradicted in a New York Times op-ed Wednesday written by Soufan, the FBI agent who interrogated Zubaydah identified in Fine’s report by the pseudonym “Thomas.”

“It is inaccurate…to say that Abu Zubaydah had been uncooperative,” Soufan wrote. “Under traditional interrogation methods, he provided us with important actionable intelligence.”

However, according to FIne’s report, the CIA claimed Zubaydah had been “only providing ‘throw-away information” and the agency adopted more aggressive tactics. Fine’s report says “Thomas” (Soufan) told the CIA interrogators Zubaydah became “uncooperative after being subjected to the CIA’s techniques.” Soufan refused to participate and protested to senior FBI officials about the techniques the CIA used against Zubaydah.

It was around this time, in April and May of 2002, that meetings were arranged involving high-ranking Bush administration officials, including then White House Counsel Alberto Gonzales, Michael Chertoff, who at the time was the head of the Justice Department’s Criminal Division, and Rice to discuss an “alternative” set of interrogation methods, including waterboarding.
 
“The CIA’s Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques,” the Intelligence Committee timeline states. It is believed that Mitchell, the psychologist under contract to the CIA ,developed the list of 10 interrogation techniques for use against Zubaydah and presented it to CIA officials.

“To enable OLC to review the legality of the techniques, the CIA provided OLC with written and oral descriptions of the proposed techniques. The CIA also provided OLC with information about any medical and psychological effects of DoD’s Survival, Evasion, Resistance and Escape (SERE) School, which is a military training program during which military personnel receive counter-interrogation training.”

But in June 2002, still two months before the Justice Department’s legal memo was issued authorizing the “enhanced interrogation” techniques, Gaudin returned to FBI headquarters and briefed his boss, Pasquale D’Amuro, the FBI’s assistant director for counterterrorism, about what he witnessed.

Gaudin said he had no “moral objection” to the techniques being used against Zubaydah because they were “comparable” to the “harsh interrogation” techniques he “himself had undergone…as part of the U.S. Army Survival, Evasion, Resistance, and Escape (SERE) training.”

Gaudin’s statement would indicate that methods that had not yet been legally approved by the Justice Department were used against Zubaydah.

According to a report released late Tuesday by the Senate Armed Services Committee on detainee abuse at military run prisons, one military official told the committee that SERE “training is ‘based on illegal exploitation (under the rules listed in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War) of prisoners over the last 50 years.’”

The Armed Services Committee report also includes a full account of the discussions that took place between April and August 2002 about the methods to use to interrogate  Zubaydah and also suggests that he was tortured before the Aug. 1, 2002 Bybee memo.

Moreover, according to the Armed Services Committee report, “the techniques used in SERE school, [are] based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy’s SERE school, it included waterboarding.”

Even before Gaudin briefed D’Amuro in June 2002, Soufan had informed D’Amuro in telephone conversation in May 2002 “his concerns about the CIA [interrogation] methods,” according to Fine’s report.

According to Fine’s report, D’Amuro decided to remove the agents from the interrogations after Soufan communicated his concerns in the May 2002 telephone conversation. But Gaudin said he was not immediately ordered to leave and “remained at the CIA facility until some time in early June 2002, several weeks after ‘Thomas’ left, and that he continued to work with the CIA and participate in interviewing Zubaydah.”

D’Amuro told Fine that he approached GBI Director Robert Mueller with Soufan’s complaints and “stated that his exact words to Mueller were ‘we don’t do 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 meeting between D’Amuro and Mueller coincided with discussions between Rice, Chertoff, Gonzales, and others about the need for a Justice Department opinion authorizing “enhanced interrogation” methods to use against Zubaydah.

Fine’s report said that D’Amuro objected to the interrogation methods because it was “ineffective and short-sighted.”

“Using these techniques was wrong and helped al-Qaeda in spreading negative views of the United States,” Fine’s report states. “D’Amuro said he took some criticism from FBI agents who wanted to participate in interviews involving ‘aggressive’ techniques, but he felt strongly that they should not participate, and [Mueller] agreed.”

“D’Amuro stated that even a military tribunal would require some standard for admissibility of evidence. Obtaining information by way of ‘aggressive’ techniques would not only jeopardize the government’s ability to use the information against the detainees, but also might have a negative impact on the agents’ ability to testify in future proceedings.”

D’Amuro’s prediction turned out to be true. In January, Susan Crawford, the retired judge who heads military commissions at Guantanamo, became the highest ranking U.S. official who said the interrogation of at least one detainee at Guantanamo met the legal definition of torture and as a result she would not allow a war crimes tribunal against him to proceed.

Further evidence suggesting that Zubaydah’s torture preceded Bybee’s legal opinion came from the, of all places, the Justice Department.

Two weeks ago, in a little known court filing related to a lawsuit the American Civil Liberties Union filed against the CIA for destroying 92 interrogation videotapes, 12 of which depicted acts of torture, the Justice Department said the interrogation tapes predated an Aug. 1, 2002 “torture” memo drafted by former OLC head Jay Bybee that authorized the CIA to use 10 torturous techniques against Zubaydah.

Bybee, now a federal appeals court judge, is also the author, along with former Deputy Assistant Attorney General John Yoo, of a March 13, 2002 “extraordinary rendition” legal memo that authorized George W. Bush to transfer prisoners to other countries that torture. The memo was written two weeks before Zubaydah was captured and transferred to CIA “black site” prison in Thailand.

A key provision in Yoo and Bybee’s rendition memo advised the White House the way in which government officials could avoid legal liability if detainees were tortured during renditions.

“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.”

Returning to the torture tape case, the Justice Department disclosed that the CIA began videotaping interrogations of Zubdaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, in April 2002.

The Justice Department has agreed to provide details on the harshest interrogations of prisoner Zubaydah that occurred in August 2002 – after the Bush administration’s lawyers had provided the legal cover for waterboarding and other brutal tactics. In one of three other “torture” memos also released last week, it was disclosed that Zubaydah had been waterboarded 83 times in August 2002.

Lev Dassin, acting U.S. Attorney for the Southern District of New York, said the government intends to provide the civil liberties organization “contemporaneous records that described the interrogations at issue … for the month of August 2002 (approximately 65 documents).”

In a “work plan” laying out a timetable for processing documents for release, Dassin added, “August 2002 was the month during which Abu Zubaydah was subjected to the most intensive interrogations.”

That letter prompted ACLU lawyers to express concern over why the government offered no promises regarding the preceding months. Amrit Singh, an ACLU staff attorney, said the government’s “motivations in confining its [latest] response to the month of August are highly suspect.”

The ACLU is suing the CIA to release documents related to 92 interrogation videotapes that were destroyed by the CIA in 2005 as public attention began focusing on allegations that the Bush administration had subjected “war on terror” detainees to brutal interrogations that crossed the line into torture.

In previous court filings, Dassin acknowledged that 12 videotapes showed Zubaydah and, being subjected to waterboarding and other harsh methods. The 80 other videotapes purportedly show Zubaydah and al-Nashiri in their prison cells.

According to Fine’s report, John Rizzo, the CIA’s acting general counsel, refused to allow investigators from the Office of Inspector General to question Zubaydah in January 2007. Fine said Rizzo’s refusal to allow investigators access to Zubaydah was “unwarranted” and “hampered” the probe. Rizzo is still acting general counsel of CIA.

Fine said Rizzo told the inspector general’s office that he refused the request because Zubaydah “could make false allegations against CIA employees.”

At the time of Fine’s request, the International Committee of the Red Cross had obtained access to Zubaydah and 13 other “high-value” detainees and concluded that their treatment “constituted torture.” The ICRC sent its report to Rizzo on Feb. 14, 2007.

In his New York Times op-ed, Soufan said “defenders of these techniques” such as Cheney and former CIA Director Michael Hayden “have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla.”

“This is false,” Soufan wrote. “The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using  traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.”