CIA Ordered to Turn Over Details of Pre-Torture Memo Interrogation Tapes

By Jason Leopold

The CIA must turn over by Wednesday a detailed description of the contents of interrogation tapes the agency made as early as April 2002, four months before the Justice Department issued a legal opinion that authorized the agency to subject a “high-value” detainee to “enhanced interrogation” techniques, a federal judge has ordered.

In a two-page order dated April 20, U.S. District Court Judge Alvin Hellerstein set an April 29 deadline for the government to produce a schedule as to when and how it intends to turn over materials related to the destruction of 92 interrogation tapes, including the contents of videotapes made prior to August 2002.

Hellerstein said “the government shall produce records relating to the content of the tapes not merely from August 2002, but from the entire period the tapes were destroyed.”

“The Government represents this period to be April through December 2002,” Hellerstein’s order says. “In addition to the current plan for production from a sample month, the Government shall propose a schedule for production of documents from the entire period. The Government shall produce documents relating to the destruction of the tapes, which describe the persons and reasons behind their destruction, from a period reasonably longer than April through December 2002.”

Two weeks ago, in a little known court filing, Lev Dassin, the acting U.S. Attorney for the Southern District of New York, disclosed that the CIA began videotaping interrogations of two alleged “high value” terrorist detainees in April 2002.

But Dassin told Hellerstein two weeks ago that the CIA had only agreed to turn over details of videotapes on the harshest interrogations of prisoner Abu Zubaydah that occurred in August 2002 – after the Bush administration’s lawyers had provided the legal cover for waterboarding and other brutal tactics.

Dassin added that the government intends to provide the American Civil Liberties Union with “contemporaneous records that described the interrogations at issue … for the month of August 2002 (approximately 65 documents).”

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 were 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 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.”  

Zubaydah, who is believed to have arranged travel for al-Qaeda operatives, was captured after a gunfight in Pakistan in March 2002 and was whisked away to a CIA “black site” prison on March 28, 2002.

In previous court filings, Dassin acknowledged that 12 videotapes showed Zubaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, being subjected to waterboarding and other harsh methods. The 80 other videotapes purportedly show Zubaydah and al-Nashiri in their prison cells. But it’s unknown whether the interrogation tapes that predate the Aug. 1, 2002 “torture” depict “enhanced interrogation” techiques not yet approved by the Justice Department.

Several weeks ago, Dassin revealed in another court filing that the CIA has about 3,000 documents related to the 92 destroyed videotapes, suggesting an extensive back-and-forth between CIA field operatives and officials of the Bush administration. The Justice Department said the documents include “cables, memoranda, notes and e-mails” related to the destroyed CIA videotapes.

In addition, Hellerstein asked the government to explain whether contempt proceedings in the case would interfere with a federal criminal investigation into the destruction of the videotapes led by special prosecutor John Durham.

According to court documents, Durham’s probe was due to be complete at the end of March. But two weeks ago, Durham questioned the CIA’s former number three official, Kyle “Dusty” Foggo, about the destruction of the tapes. Foggo, who was sentenced to three years in prison for fraud for steering lucrative contracts to a friend, was due to report to federal prison days but Durham asked for a delay so he could question him about the tape destruction.

Moreover, Hellerstein said some documents related to the destruction of the tapes he privately reviewed last month contained redactions and he ordered the government to “reconsider the extent of any redactions in documents produced pursuant to its work plan in light of its release of Office of Legal Counsel memoranda in this litigation.”

Two weeks ago, President Obama released four “torture” memos from August 2002 and May 2005, which were the subject of a Freedom of Information Act lawsuit filed by the ACLU. One memo said Zubaydah was waterboarded 83 times in August 2002.

It has since been revealed in documents released last week by the Senate Select Committee on Intelligence that high-level Bush administration officials, including then National Security Adviser Condoleezza Rice and Vice President Dick Cheney, began discussing using “enhanced interrogation” methods against Zubaydah in May 2002, suggesting that he was subjected to some techniques not yet authorized.

Ali Soufan, a former FBI agent who first interrogated Zubaydah shortly after he was captured, complained to officials at FBI headquarters that early interrogations of Zubaydah by the CIA amounted to “borderline torture,” according to a report released last year by Justice Department Inspector General Glenn Fine related to the FBI’s role in harsh interrogations.

Whether Zubaydah was tortured before the Aug. 1, 2002 memo was issued has been a matter of debate for some time.

In the book, The Dark Side by New Yorker reporter Jane Mayer, she suggested there was a turf war between CIA and FBI related to interrogations of “war on terror” detainees. 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 Tenet 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.”

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