CIA Director Leon Panetta. (Photo: AP)
CIA Director Leon Panetta has consistently stated over the past several months that agency interrogators who participated in the Bush administration's sadistic torture practices should not be subject to "any investigation, let alone prosecution," because they were following legal advice provided by the Justice Department.
In March, Panetta said he agreed to cooperate with a Senate Intelligence Committee "review" and "study" on CIA interrogation methods on the condition that he received assurances from committee Chair Sen. Dianne Feinstein (D-California) and Republican Co-Chair Kit Bond (R-Missouri) that they would not attempt to "punish those who followed guidance from the Department of Justice."
"That is only fair," Panetta said. "Their goal is to draw lessons for future policy decisions" and [they] won't seek to punish those who participated in the program.
On Thursday, in announcing the closure of the "black site" prisons where the torture took place, Panetta said CIA "officers who act on guidance from the Department of Justice - or acted on such guidance previously - should not be investigated, let alone punished. This is what fairness and wisdom require."
However, Panetta's defense was dealt a serious blow last week when the Justice Department revealed in a letter sent to a federal court judge that 92 interrogation videotapes the CIA destroyed were made between April and December 2002.
The Justice Department's legal opinion authorizing the CIA to use specific interrogation methods, including the near-drowning technique known as waterboarding, was not issued until August 1, 2002.
Lev Dassin, acting US attorney for the Southern District of New York, said in his letter Thursday that the CIA will provide the American Civil Liberties Union with information related to the harsh interrogations depicted on the videotapes. The ACLU is suing the agency over its destruction of the tapes. But the information the Justice Department turns over about the videotapes will be limited to August 2002, the month the Justice Department's Office of Legal Counsel authorized the CIA to use the methods.
"The Government will produce Vaughn-like entries for the contemporaneous records that described the interrogations at issue (hereinafter interrogation records) for the month of August 2002 (approximately 65 documents)," Dassin's letter says. In Freedom of Information Act cases, a Vaughn index is a list of documents withheld by the government.
"August 2002 was the month during which Abu Zubaydah was subjected to the most intensive interrogations," Dassin wrote. In previous court filings, the CIA said 12 videotapes that the agency destroyed showed Zubaydah and another detainee being tortured.
Dassin's 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.
"It seems like the letter provides no explanation for why records for other months should not be included in the government's work plan," Singh said in an interview.
It is widely believed that the videotapes were destroyed to cover up illegal acts. It is also believed that the tapes were destroyed because Democratic members of Congress who were briefed about the tapes began asking questions about whether the interrogations were illegal, according to Jane Mayer, author of the book, "The Dark Side" and a reporter for The New Yorker magazine.
"Further rattling the CIA was a request in May 2005 from Sen. Jay Rockefeller, ranking Democrat on the Senate Intelligence Committee, to see over a hundred documents referred to in the earlier Inspector General's report on detention inside the black prison sites," Mayer wrote in her book. "Among the items Rockefeller specifically sought was a legal analysis of the CIA's interrogation videotapes.
"Rockefeller wanted to know if the intelligence agency's top lawyer believed that the waterboarding of [alleged al-Qaeda operative Abu] Zubayda and [alleged 9/11 mastermind] Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal. The CIA refused to provide the requested documents to Rockefeller.
"But the Democratic senator's mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request he made for these documents to [former CIA Director Porter] Goss in September 2005."
The likelihood that Zubaydah was tortured before the Justice Department issued its infamous "torture memo" on August 1, 2002, would appear to undercut Panettta's rationale for defending CIA interrogators.
Assertions that the Justice Department issued a legal memo authorizing torture before CIA interrogators employed the methods has long been disputed by members of Congress and in numerous books and publicly released documents.
Last year, a Justice Department Inspector General report was released about the FBI's role in harsh interrogations. The report, prepared by Inspector General Glenn Fine, said two FBI agents, identified by the pseudonyms "Thomas" and "Gibson," interviewed Zubaydah shortly after he was captured in March 2002. One of the agents even tended to Zubaydah's gunshot wounds.
The FBI claimed, according to Fine's report, that Zubaydah had provided valuable intelligence via "rapport building" interviews. However, within a few days CIA interrogators intervened. They claimed Zubaydah had been "only providing 'throw-away information'" and adopted more aggressive tactics.
When one of the FBI agents complained to the CIA interrogators about the brutal tactics, he was told the techniques were approved "at the highest levels" of government. "Thomas" refused to participate and protested to senior FBI officials about techniques the CIA used against Zubaydah.
According to Fine's report, "Thomas" did not see Zubaydah being waterboarded but witnessed other methods being used against him during May 2002 that he said were "borderline torture."
Agent "Thomas's" complaints to the FBI eventually led Pasquale D'Amuro, the FBI's assistant director for counterterrorism, to remove the agents from the interrogations, according to Fine's report. D'Amuro told Fine that he brought the agents' complaints to FBI Director Robert Mueller 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."
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.
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 February 14, 2007.
However, neither the ICRC's report nor Fine's include specific dates about the "enhanced" techniques used against Zubaydah.
According to Fine's report, "Gibson" said he "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."
When he returned to the FBI headquarters in June 2002 to meet with officials about Zubaydah "Gibson" 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 US Army Survival, Evasion, Resistance, and Escape (SERE) training."
SERE was meant to prepare US soldiers for abuse they might suffer if captured by an outlaw regime. But it was reverse engineered by psychologists working for the military and CIA and used against detainees during interrogations. SERE training techniques included stress positions, forced nudity, use of fear, sleep deprivation and waterboarding.
Zubaydah told the ICRC that CIA interrogators said he was their first subject, "so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people." Zuhbaydah said he was repeatedly smashed against a wall, placed inside a black wooden box, and was waterboarded, a technique that creates the panicked reflex of drowning.
Rizzo also has been questioned about his role in the videotape destruction by John Durham, who was appointed special prosecutor last year by Attorney General Michael Mukasey to probe whether the destruction of the tapes constituted a crime.
Last week, 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 last week, but Durham asked for a delay so he could question him about the tape destruction.
Singh, the ACLU attorney, said Friday she could not speculate whether videotapes made prior to August 2002 might have depicted "enhanced" methods such as waterboarding. Those techniques were cleared for use by an August 1, 2002, legal opinion that narrowly defined torture, thus enabling the Bush administration to claim that its harsh tactics didn't qualify as torture.
But one document that could shed further light on when Zubaydah's torture took place is a classified May 2004 CIA inspector general's report on the agency's interrogation methods. According to published reports, CIA Inspector General John Helgerson "raised concern about whether the use of the techniques could expose agency officers to legal liability." Helgerson also viewed the interrogation tapes the CIA destroyed.
"The report expressed skepticism about the Bush administration view that any ban on cruel, inhumane and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States," The New York Times reported on November 9, 2005.
One person who assisted Helgerson with his probe was Mary O. McCarthy, who alleged CIA officials lied to members of Congress during an intelligence briefing when they said the agency did not violate treaties that bar, cruel, inhumane or degrading treatment of detainees during interrogations, according to a May 14, 2006, front-page story in The Washington Post.
"A CIA employee of two decades, McCarthy became convinced that 'CIA people had lied' in that briefing, as one of her friends said later, not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane or degrading," The Washington Post reported.
McCarthy "worried that neither Helgerson nor the agency's Congressional overseers would fully examine what happened or why." Another friend said, "She had the impression that this stuff has been pretty well buried." The Post story reported, "In McCarthy's view and that of many colleagues, friends say, torture was not only wrong but also misguided, because it rarely produced useful results."
In April 2006, 10 days before she was due to retire, McCarthy was fired from the CIA for allegedly leaking classified information to the media, a CIA spokeswoman told reporters at the time.
In her book, "The Dark Side," Mayer wrote that the "2004 Inspector General's report, known as a 'special review,' was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply 'sickening.'" The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized. The source said, "You couldn't read the documents without wondering, 'Why didn't someone say, "Stop!'""
According to Mayer, Vice President Dick Cheney stopped Helgerson from fully completing his investigation. That proves, Mayer contends, that as early as 2004 "the Vice President's office was fully aware that there were allegations of serious wrongdoing in The [interrogation] Program."
"Helgerson was summoned repeatedly to meet privately with Vice President Cheney" before his investigation was "stopped in its tracks." Mayer said that Cheney's interaction with Helgerson was "highly unusual."
Before leaving office, Vice President Cheney said he approved waterboarding on at least three "high value" detainees and the "enhanced interrogation" of 33 other prisoners.
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.
President Bush made a somewhat vaguer acknowledgment of authorizing these techniques. Both said the methods were authorized by Justice Department legal opinions.
Still, it's unlikely Panetta will change his stance given the new evidence that torture likely took place before the DoJ's legal authorization.
According to veteran CIA analyst Melvin Goodman, Panetta has become entrenched in CIA bureaucracy.
"It is obvious Panetta wants to make no waves at the CIA," Goodman said.
"It is extremely difficult for any outsider to make his mark within a bureaucracy as parochial and insular as the one at CIA," said Goodman, who spent more than two decades at the agency. "Panetta, unfortunately, has tried to ingratiate himself with the negative elements. Panetta's first mistake was to keep in place all of the holdovers from the era of George Tenet and Porter Goss, who were responsible for the culture of cover-up created at the CIA."
"In keeping Steven Kappes as the deputy director, Panetta signaled that there would be no change at the Agency and no punishment for corruption," Goodman added. "Kappes, after all, was the ideological driver for those policies that Obama and Panetta criticized before Panetta's confirmation. Instead of reaching out to contrarians or dissidents from the intelligence community, Panetta has relied solely on the leadership he inherited, the very people who have a vested interest in making sure that nothing changes."
Panetta's about-face stands in stark contrast to statements he made in a series of op-eds in the Monterey County Herald and other publications last year. In a March 8, 2008, column titled, "Americans Reject Fear Tactics," Panetta wrote that "all forms of torture have long been prohibited by American law and international treaties respected by Republican and Democratic presidents alike."
"Our forefathers prohibited 'cruel and unusual punishment' because that was how tyrants and despots ruled in the 1700's. They wanted an America that was better than that. Torture is illegal, immoral, dangerous and counterproductive. And yet, the president is using fear to trump the law."
While stopping short of demanding investigations and prosecutions, Panetta certainly made it clear that Bush was acting above the law.
In a column published in the Washington Monthly last summer titled "No Torture, No Exceptions," Panetta wrote that "there are certain lines Americans will not cross because we respect the dignity of every human being. That pledge was written into the oath of office given to every president, 'to preserve, protect, and defend the Constitution.' It's what is supposed to make our leaders different from every tyrant, dictator, or despot. We are sworn to govern by the rule of law, not by brute force."