So what was on those videotapes destroyed by the CIA? Let’s put a face to it. Abu Zubaydah was captured in Pakistan in 2002 and, after being shot in the groin while trying to escape, was sent to recover in a CIA secret prison. He would be the first of the CIA’s many “ghost prisoners”—and also the first to test the value of what the president has often described as an “alternative set of [interrogation] procedures . . . that are safe and necessary.”As described by Ron Suskind in The One Percent Doctrine: Deep Inside America’s Pursuit of Its Enemies Since 9/11 , Zubaydah—held in an ice-cold cell—was denied medication for his wounds, threatened with death, prevented from sleeping, incessantly blasted with pounding rock music (by the Red Hot Chili Peppers, among others), and, at last, waterboarded. After 30 seconds of feeling that he was on the verge of drowning, he was more than eager to answer any questions.
In a September 6, 2006, speech, George W. Bush triumphantly called Zubaydah “one of the top operatives plotting and planning death and destruction on the United States.” After the application of those “alternative” interrogation procedures, which the president described as “designed to . . . comply with our laws, our Constitution, and our treaty obligations, [and which] the Department of Justice reviewed extensively and determined to be lawful,” the detainee “disclosed Khalid Sheikh Mohammed [to be] the mastermind behind the 9/11 attacks” and “also provided information that helped stop a terrorist attack being planned for inside the United States.”
But, Suskind added, two weeks before Bush’s words of praise for these “coercive” interrogations, Dan Coleman—the FBI’s leading expert on Al Qaeda—asserted that Zubaydah was “insane, certifiable, split personality,” and that he wasn’t the top operative he was made out to be. The CIA was informed of Coleman’s assessment, and it was, “of course, briefed to the President and Vice President.” Undaunted, Bush made his congratulatory speech and then surreptitiously said to CIA director George Tenet: “I said he was important. You’re not going to let me lose face on this, are you?”
After his involuntary contribution to the advanced arts of interrogation, Zubaydah became a resident of our penal colony at Guantánamo Bay, which the president has made an entirely law-free zone, much like the CIA’s secret prisons. But after two Supreme Court decisions contradicted the commander in chief in his assertion of unfettered war powers, the Bush administration reluctantly set up a transparently prosecutorial kangaroo court there.
In April of last year, appearing before a status-review tribunal to determine whether he had been accurately designated as an enemy combatant, Zubaydah testified, as reported in the New York Times, that as a Palestinian, and because of American support for Israel, “I have been an enemy of yours since I was a child.”
However, he insisted that as a longtime adherent of “defensive jihad”—and despite what he’d said after being waterboarded—”I disagreed with the Al Qaeda philosophy of targeting innocent civilians like those at the World Trade Center. . . . I never conducted nor financially supported, nor helped in any operation against America.”
He explained that he’d made false statements while being tortured by the CIA. Asked by the president of the tribunal, an Air Force colonel, “Can you describe a little bit more about what those treatments were?”, Zubaydah obliged.
Not surprisingly, his answers are not part of the transcript. I expect that Attorney General Michael Mukasey would consider those waterboarding details to be “state secrets” involving highly classified “sources and methods.”
Paul Gimigliano, a professional Pinocchio (i.e., spokesman) for the CIA, said that however Zubaydah described his treatment, “The United States does not conduct or condone torture. The agency’s terrorist interrogation program has been implemented lawfully, with great care and close review.”
If you have any doubts, just ask Attorney General Mukasey, whose department is conducting a close review (but close for whose sake?) of the destroyed CIA interrogation tapes starring Abu Zubaydah. But the Justice Department says that it cannot tell us how long this inquiry—which is being conducted in conjunction with the CIA—will take.
That’s not surprising in view of the intricate tapestry of cover-ups woven by both agencies and by the White House. With so little time remaining before the next administration takes over, a special independent prosecutor must be appointed before more criminal evidence disappears.
According to a December 30 investigation by The New York Times, as “interrogations of Abu Zubaydah had gotten rougher” in the CIA secret prison, “each new tactic [had to be] approved by cable from headquarters.”
CIA headquarters? Justice Department headquarters? White House lawyers? Names, please!
There’s another crucial dimension to uncovering the effects of what Zubaydah— terrified that he was about to drown— allegedly revealed during those “rougher” interrogations: There are several cases of purported terrorists before our courts who are being prosecuted on the basis of Zubaydah’s desperate testimony in that CIA black site.
For example, American citizen José Padilla was arrested at O’Hare Airport in 2002, after allegedly conspiring with Zubaydah and Al Qaeda to set off a “dirty bomb” in the United States. Padilla—himself relentlessly tortured while being held for years as an “unlawful enemy combatant”—first appeared in court on those charges before none other than Michael Mukasey, at the time a federal judge in New York. Mukasey ordered him imprisoned on a material-witness warrant, based in part on the information that had been proffered by Zubaydah under waterboarding. Then, suddenly, Padilla was taken out of the federal-court system by order of George W. Bush and vanished for years without even a hearing or charges or access to a lawyer.
Marjorie Cohn, a professor at Thomas Jefferson School of Law, says: “It is not clear whether Mukasey knew Zubaydah’s statements were obtained by torture. But since he issued the warrant, Mukasey has a real or apparent conflict of interest” as one of the heads of the current investigation into the CIA- destroyed torture videos. Mukasey has appointed a career federal prosecutor to head the investigation and report back to him.
Cohn adds: “[Mukasey] has said it is premature to appoint an outside special counsel. But like the Nixon administration, the Department of Justice cannot be trusted to investigate itself. Congress should be pressured to pass a new independent-counsel stature.”
There are bipartisan constitutional lawyers beginning to apply that pressure, but there will be passionate resistance from Congressional Republicans. Do you think that Democratic Congressional leaders Harry Reid and Nancy Pelosi will give a damn?