By Dan Froomkin

The Washington Post

Thursday 10 April 2008

Top Bush aides, including Vice President Cheney, micromanaged the torture of terrorist suspects from the White House basement, according to an ABC News report aired last night.

Discussions were so detailed, ABC's sources said, that some interrogation sessions were virtually choreographed by a White House advisory group. In addition to Cheney, the group included then-national security adviser Condoleezza Rice, then-defense secretary Donald Rumsfeld, then-secretary of state Colin Powell, then-CIA director George Tenet and then-attorney general John Ashcroft.

At least one member of the club had some qualms. ABC reports that Ashcroft "was troubled by the discussions. He agreed with the general policy decision to allow aggressive tactics and had repeatedly advised that they were legal. But he argued that senior White House advisers should not be involved in the grim details of interrogations, sources said.

"According to a top official, Ashcroft asked aloud after one meeting: 'Why are we talking about this in the White House? History will not judge this kindly.'"

Here's the video of last night's report by Jan Crawford Greenburg and a text version by Greenburg, Howard L. Rosenberg and Ariane de Vogue.

They write: "Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects - whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding...."

"As the national security adviser, Rice chaired the meetings, which took place in the White House Situation Room."

The discussions started after the CIA captured al-Qaeda suspect Abu Zubaydah in the spring of 2002, ABC reports. "At a time when virtually all counterterrorist professionals viewed another attack as imminent - and with information on al Qaeda scarce - the detention of Zubaydah was seen as a potentially critical breakthrough."

According to ABC, the CIA briefed the White House group on its plans to use aggressive techniques against Zubaydah and received explicit approval. Zubaydah is one of the three detainees the CIA has since confirmed were subjected to waterboarding, a notorious torture technique that amounts to controlled drowning.

Such techniques were later authorized in a controversial August 2002 Justice Department memo, signed by then head of the Office of Legal Counsel Jay Bybee. ABC reports that the memo "was referred to as the so-called 'Golden Shield' for CIA agents, who worried they would be held liable if the harsh interrogations became public."

Nevertheless, even after the memo was in place, "briefings and meetings in the White House to discuss individual interrogations continued, sources said. Tenet, seeking to protect his agents, regularly sought confirmation from the NSC principals that specific interrogation plans were legal. . . .

"According to a former CIA official involved in the process, CIA headquarters would receive cables from operatives in the field asking for authorization for specific techniques. Agents, worried about overstepping their boundaries, would await guidance in particularly complicated cases dealing with high-value detainees, two CIA sources said. . . .

"At one meeting in the summer of 2003 - attended by Vice President Cheney, among others - Tenet made an elaborate presentation for approval to combine several different techniques during interrogations, instead of using one method at a time, according to a highly placed administration source."

ABC reports that, in at least once case, the group's approvals of CIA techniques continued even after the Justice Department formally withdrew the August 2002 memo in 2004.

Will They Be Held to Account?

Marc Ambinder blogs for the Atlantic that "it remains one of those hidden secrets in Washington that a Democratic Justice Department is going to be very interested in figuring out whether there's a case to be made that senior Bush Administration officials were guilty of war crimes."

But legal blogger Jack Balkin says no way. "[S]ections 8 and 6(b) of the Military Commissions Act of 2006 effectively insulated government officials from liability for many of the violations of the War Crimes Act they might have committed during the period prior to 2006. Moreover, as [fellow blogger Martin Lederman] has pointed out, there's a strong argument that a later Justice Department would not prosecute people who reasonably relied on legal advice from a previous Justice Department. . . .

"And putting aside the purely legal obstacles to a prosecution for war crimes, there's also the political cost. Why would an Obama or Clinton Administration waste precious political capital early on with a politically divisive prosecution of former government officials? . . .

"It is not that certain members of the Bush Administration haven't committed war crimes. I'm pretty certain that at least some of them have. The point rather is that it is very unlikely that they will ever be brought to justice for it, at least in our own country- despite the fact that there are statutes on the books which assert that the commission of war crimes violates our laws. . . .

"As I noted in a previous post, the most likely prosecution for war crimes will not occur in the United States; if it occurs at all, it will come through the use of universal jurisdiction against Bush Administration officials who make the mistake of traveling outside the United States."

About Zubaydah

There's one serious flaw in the ABC report: It allows the administration's version of Zubaydah's value as an intelligence asset to go unrefuted. ABC calls Zubaydah a "top al Qaeda operative" and reports that "[a]ter he was waterboarded, officials say Zubaydah gave up valuable information that led to the capture of 9/11 mastermind Khalid Sheik Mohammad and fellow 9/11 plotter Ramzi bin al-Shibh."

But as I've written, administration statements about Zubaydah have been almost entirely contradicted by authoritative accounts from author Ron Suskind and New York Times reporter David Johnston.

Zubaydah, it turns out, was a mentally ill minor functionary, nursed back to health by the FBI, who under CIA torture sent investigators chasing after false leads about al-Qaeda plots on American nuclear plants, water systems, shopping malls, banks and supermarkets.

The most valuable information Zubaydah gave investigators about Mohammed was his nickname, which, as Dan Eggen and Dafna Linzer reported in The Washington Post, the CIA had already learned seven months earlier.

Gitmo Watch

When the administration announced in February that it had filed capital murder charges against half a dozen men allegedly linked to the Sept. 11, 2001, terrorist attacks, the message was clear: The White House wanted a 9/11 trial before the end of Bush's term.

But as William Glaberson writes in the New York Times: "[T]he Sept. 11 case immediately hit a snag. Military defense lawyers were in short supply, and even now, two months later, not one of the six detainees has met his military lawyer. . . .

"[T]here is a growing consensus among lawyers inside and outside the military that few of those cases are likely to actually come to trial before the end of the Bush administration. . . .

"The road to a trial is difficult in some cases partly because they involve potential death penalties and claims of torture by interrogators, issues that raise thorny legal questions that could take months or longer to sort out. But even comparatively simple cases without capital penalty issues are proceeding slowly."

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