“The arguments I was making were pretty profound,” answered Zelikow. “Because if I was right, their whole interpretation of the CID standard [the standard for "cruel, inhuman and degrading treatment," forbidden by the Convention Against Torture and by the U.S. Constitution] was fundamentally unsound.”

So they had “a few options,” Zelikow said. One is, “let’s take another look at this” and see if there’s any validity to the different opinion, or, “they could say, Zelikow, this shows how rusty you are in practicing law. We need to tell you why you’ve misunderstood this area of the law.”

But in fact, said Zelikow, “they didn’t do any of those things.” They chose a third option. “They just said, ‘we don’t want to talk about it.’”

And it’s that third option — intentionally burying your head in the sand — that demonstrates bad faith and an intent to ignore the relevant law, as the legal ethics expert David Luban testified.

“There are no reliable statistics on the recidivism rate” at Guantanamo, Zelikow replies, and allows that there are indications that some unknown number of them have returned to fight. Isn’t that a “miscarriage of justice” then, Graham asks?

“Not necessarily,” Zelikow replies.

“What if it was your son or daughter?” Graham demands? How would he feel then?

Zelikow says he wouldn’t feel any different than when a parolee commits a crime. Graham meekly drops the point.

Sen. Richard Durbin (D-Ill.) brought the point up to argue against the political argument that informing Congress “incomplete[ly]” amounted to “complicity” in the programs. Apparently such disclosure had rhetorical value in internal Bush administration debate.

If true, that means senior CIA officials and the Bush administration overruled the very CIA team sent to interrogate Abu Zubaydah, in favor of someone who was never an interrogator, and at least one FBI interrogator who objected loudly to Abu Zubaydah’s torture.

One aspect of Ali Soufan’s interrogation of Abu Zubaydah that’s now somewhat cleared up, according to the ex-FBI agent’s opening statement: the FBI and the CIA/SERE-contractor team were in a back-and-forth during the spring of 2002 for how to interrogate him, with each side attempting to win. The “contractor” — probably James Mitchell — “insisted on stepping up the notches of his experiment,” even after Abu Zubaydah apparently stopped cooperating with coercive interrogations. That contractor  “requested the authorization to place Abu Zubaydah in a confinement box” — which Soufan saw as “borderline torture.” He doesn’t give a precise breakdown of when this all happened, but indicates he “was pulled out” by FBI Director Robert Mueller after that; and it all occurred before the August 1, 2002 OLC legal memoranda blessing Abu Zubaydah’s torture. (He wrote in his April New York Times op-ed that it happened in June 2002; the Justice Department’s Inspector General 2008 report suggests it was around mid-May.)

By contrast, here’s how Soufan interrogated an al-Qaeda operative known as Abu Jandal after 9/11. He “advised him of his rights” — what he acidly calls an “Informed Interrogation Approach” — and then the interrogation allegedly reaped:

extensive information on Osama bin Laden’s terror network, structure, leadership, membership, security dtails, facilities, family, communication methods, travels, training, ammunitions, and weaponry, including a breakdown of what machine guns, rifles, rocket launchers, and anti-tank missiles they used. He also provided explicit details of the 9/11 plot operatives and identified many terrorists who we later successfully apprehended.

But nothing on how Saddam Hussein was working with al-Qaeda, so you know you can’t trust a detainee who wasn’t placed in a confinement box with an insect. Indeed, Soufan references Ibn Sheikh al-Libi’s torture, noting that it led to “false information on Iraq, al-Qaeda and WMD.”  Information obtained through torture provides “no way to know whether the detainee is being truthful or just speaking to either mitigate his discomfort or to deliberately provide false information.” Agents therefore chase “false leads” and waste valuable time and resources.

Just as no accounts of information obtained through torture should be taken at face value, neither should Soufan’s account of information obtained without torture. A thorough investigation has to follow up what he’s said to determine its veracity against other information.  But this is an interesting insight: “Nor can it be said that the harsh techniques were effective, which is why we had to be called back in repeatedly.” That, at least, is one explanation for the FBI’s frequent 2002-2004 participation in military and CIA interrogations that I wondered about in my piece yesterday.

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He was particularly disturbed, he testified, by this implication of the memos: “If the CIA program passed muster under an American constitutional compliance analysis, then a program of this kind would pass American constitutional muster if employed anywhere in the United States on American citizens.”

His memos to administration officials expressing his concerns were not only ignored, but destroyed, he said.  He added that they have since been “found” and are now being reviewed for declassification.

The issue is not whether the CIA program of extreme physical coercion produced useful intelligence; it is about its net value compared to the alternatives. And, even though the program might have some value against some prisoners, it has serious drawbacks just in the intelligence calculus, such as … constraints in getting the optimal team of interrogators … whether the program actually produces much of the time sensitive current intelligence that is one of its unique justifications; loss of intelligence from allies who fear becoming complicit in a program they abhor … poorer reliability of information obtained through torment; possible loss of opportunities to turn some captives into more effective and even cooperative informants; and problems in devising an end-game for the eventual trial or long-term disposition of the captives.

Additionally, he says that the State Department under Secretary Condoleezza Rice in 2005 — who, as national security adviser in July 2002, gave the CIA the policy go-ahead to torture al-Qaeda detainee Abu Zubaydah before the Justice Department’s Office of Legal Counsel ruled on the legality of the proposed interrogation regime — urged reliance on a “cruel, inhuman and degrading” standard when considering what to allow in interrogation.

Last thing: Zelikow says the State Department is currently reviewing his 2005 memo for “possible declassification.” At last: confirmation that not all copies of the memo were destroyed by the Bush administration — and that the State Department actually has a copy.

“The rules of professional ethics forbid lawyers from counseling or assisting clients in illegal conduct,” Lujan, the first witness testifying at today’s Senate Judiciary subcommittee hearing on torture, said. “Unfortunately, the torture memos fall far short of candid advice and independent professional judgment.”  They “cherry-pick the law” and “read as if they were reverse engineered to reach a predetermined outcome.”

Luban also noted that the OLC lawyers bizarrely neglected to mention the most obvious case in recent U.S. legal history about waterboarding — U.S. v. Lee, which I’ve written about here — in which the Reagan Justice Department prosecuted a Texas sheriff for using the technique to extract confessions from suspects. The ruling in the case repeatedly called the technique “torture.”

While that’s all clearly a violation of legal ethics and cause for disbarment — as the forthcoming internal legal ethics report of the Justice Department is expected to recommend — as I’ve written before, it could also be grounds for criminal prosecution.  If there was enough evidence that the memos were written in “bad faith”, as Luban just testified that he thinks they were, then the memos could also be found to have been written with the intent of furthering a crime.

After Feinstein spoke, both Sens. Russ Feingold (D-Wis.) and Sheldon Whitehouse (D-RI) reiterated their support for an “independent, bipartisan commission” separate from the Senate intelligence and judiciary committees.