It’s almost enough to generate sympathy for Jay Bybee and John Yoo, the two heads the Justice Department’s Office of Legal Counsel in 2002 who signed off on the infamous torture memos. According to the 2004 CIA inspector general’s report on torture, Bybee and Yoo didn’t make their decisions based on complete information, and information CIA provided to them on the efficacy of torture was, in some cases “appreciably overstated,” “exaggerated” and “probably misrepresented.”
A few months before the March 2002 capture of Abu Zubaydah prompted discussion at the highest levels of the Bush administration as to what interrogation policy ought to be, the CIA in late 2001 solicited a report from James Mitchell and Bruce Jessen, two former SERE officials, about how to overcome “countermeasures” al-Qaeda developed to resist interrogation. As a result, the report states, the CIA’s Office of Technical Services “obtained data on the use of the proposed” torture techniques listed in Mitchell and Jessen’s report and the techniques’ “potential long-term psychological effects on detainees.” OTS also got input from the Defense Department’s Joint Personnel Recovery Agency, which oversees the SERE program, as documented in the Senate Armed Services Committee’s torture report from last year. That OTS report was the basis for the information about proposed torture techniques provided to the Justice Department in spring 2002 that Yoo and Bybee, in their August 2002 torture memos, consider for application to Abu Zubaydah.
In the August 1, 2002 memo written by Bybee and Yoo, the lawyers summarize and refer repeatedly to what the CIA told them about how the “enhanced interrogation techniques” are supposed to work, as well as to assurances that the lawyers then consider material for whether the proposed actions violate U.S. laws. For instance, discussing waterboarding, they write, that water would be applied “in a controlled manner,” and that the CIA orally informed them that “this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning.”
Just one problem: CIA medical personal objected to the description that OTS gave to the Justice Department as factually inaccurate.
Addressing the discrepancies between how waterboarding worked in the SERE school and how it worked at CIA and other torture techniques that changed between on-paper justification and in-the-field practice, a footnote to the inspector general’s 2004 report reads:
According to the Chief, Medical Services, OMS [the CIA's Office of Medical Services] was neither consulted nor involved in the initial analysis of the risk and benefits of EITs [“enhanced interrogation techniques,” nor provided with the OTS report cited in the OLC opinion. In retrospect, based on the OLC extracts of the OTS report, OMS contends that the reported sophistication of the preliminary EIT review was probably exaggerated, at least as it related to the waterboard, and that the power of this EIT was appreciably overstated in the report. Furthermore, OMS contends that the expertise of the SERE psychologist/interrogators on the waterboard was probably misrepresented at the time, as the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.
This is hardly the only time during the Bush administration where the CIA cut out of the loop elements from within its own ranks that might not ratify a decision desired by the Bush administration. During the lead-up to the war with Iraq — indeed, during this same time period of early-mid 2002 — the CIA’s chief analyst, Jami Miscik, cut out of CIA analysis on the alleged relationship between Saddam Hussein and al-Qaeda the agency’s own Mideast analysts, who were dubious of any substantive connection.
It is unclear if Yoo or Bybee would have changed their analysis had they been treated to a full account of OMS’s perspective. But it’s crystal clear from the report that fateful decisions were made without the benefit of complete information.
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