A Tortured Debate

Amid feuding and turf battles, lawyers in the White
House discussed specific terror-interrogation
techniques like ’water-boarding’ and ’mock burials’

By Michael Hirsh, John Barry and Daniel Klaidman

http://www.msnbc.msn.com/id/5197853/site/newsweek

With Michael Isikoff, Mark Hosenball and Tamara Lipper
in Washington

Ibn al-Shaykh al-Libi was America’s
first big trophy in the war on terror: a senior Qaeda
operative captured amid the fighting in Afghanistan.
What is less known is that al-Libi, who ran Qaeda
training camps, quickly became the subject of a bitter
feud between the FBI and the CIA over how to
interrogate terror suspects. At the time of al-Libi’s
capture on Nov. 11, 2001, the questioning of detainees
was still the FBI’s province. For years the bureau’s
"bin Laden team" had sought to win suspects over with a
carrots- and-no-sticks approach: favors in exchange for
cooperation. One terrorist, in return for talking, even
wangled a heart transplant for his child.

With al-Libi, too, the initial approach was to read him
his rights like any arrestee, one former member of the
FBI team told NEWSWEEK. "He was basically cooperating
with us." But this was post-9/11; President Bush had
declared war on Al Qaeda, and in a series of covert
directives, he had authorized the CIA to set up secret
interrogation facilities and to use new, harsher
methods. The CIA, says the FBI source, was "fighting
with us tooth and nail."

The handling of al-Libi touched off a long-running
battle over interrogation tactics inside the
administration. It is a struggle that continued right
up until the Abu Ghraib scandal broke in April-and it
extended into the White House, with Condoleezza Rice’s
National Security Council pitted against lawyers for
the White House counsel and the vice president. Indeed,
one reason the prison abuse scandal won’t go away-two
months after gruesome photos were published worldwide-
is that a long paper trail of memos and directives from
inside the administration has emerged, often leaked by
those who disagreed with rougher means of questioning.

More War Crimes Memos

Read the complete Yoo-Delahunty memo:

Part 1

http://www.msnbc.msn.com/id/5025040/site/newsweek/

Part 2

http://www.msnbc.msn.com/id/5025042/site/newsweek/

Part 3

http://www.msnbc.msn.com/id/5025045/site/newsweek/

Part 4

http://www.msnbc.msn.com/id/5025047/site/newsweek/

Read the memo on habeas jurisdiction

http://www.msnbc.msn.com/id/5022681/site/newsweek/

Last week the White House dismissed news accounts of
one such memo, an explosive August 2002 brief from the
Justice Department’s Office of Legal Counsel disclosed
by The Washington Post. The memo, drafted by former OLC
lawyer John Yoo, has been widely criticized for seeming
to flout conventions against torture. It defends most
interrogation methods short of severe, intentionally
inflicted pain and permanent damage. White House
officials told reporters that such abstract legal
reasoning was insignificant and did not reflect the
president’s orders. But NEWSWEEK has learned that Yoo’s
August 2002 memo was prompted by CIA questions about
what to do with a top Qaeda captive, Abu Zubaydah, who
had turned uncooperative. And it was drafted after
White House meetings convened by George W. Bush’s chief
counsel, Alberto Gonzales, along with Defense
Department general counsel William Haynes and David
Addington, Vice President Dick Cheney’s counsel, who
discussed specific interrogation techniques, says a
source familiar with the discussions. Among the methods
they found acceptable: "water-boarding," or dripping
water into a wet cloth over a suspect’s face, which can
feel like drowning; and threatening to bring in more-
brutal interrogators from other nations.

Al-Libi’s capture, some sources say, was an early
turning point in the government’s internal debates over
interrogation methods. FBI officials brought their plea
to retain control over al-Libi’s interrogation up to
FBI Director Robert Mueller. The CIA station chief in
Afghanistan, meanwhile, appealed to the agency’s
hawkish counterterrorism chief, Cofer Black. He in turn
called CIA Director George Tenet, who went to the White
House. Al-Libi was handed over to the CIA. "They duct-
taped his mouth, cinched him up and sent him to Cairo"
for more- fearsome Egyptian interrogations, says the
ex-FBI official. "At the airport the CIA case officer
goes up to him and says, ’You’re going to Cairo, you
know. Before you get there I’m going to find your
mother and I’m going to f--- her.’ So we lost that
fight." (A CIA official said he had no comment.)

The FBI, with its "law enforcement" mind-set, found
itself more and more marginalized. The struggle
extended to the Guantanamo Bay detention center in
early 2002, as "high value" suspects were shipped there
for interrogation. Frustrated FBI officials, along with
military interrogators like those from the Naval
Criminal Investigation Service, found themselves "like
kids with their noses pressed up against the glass,"
says a source involved in the early days at Gitmo. "Law
enforcement had a long history of interrogating people.
The intelligence community did not. Back in the cold
war, they’d debriefed defectors. But that was all. So
the intelligence community, once it got the mission,
was searching for effective techniques of
interrogation-and in their inexperience were
floundering for a while."

As with al-Libi, the internal debates usually turned on
what to do with a specific Qaeda detainee. That’s what
happened in the summer of 2002 after the capture of Abu
Zubaydah, who refused to cooperate after an initial
spate of talkativeness. Frustrated CIA officials went
to OLC lawyer Yoo for an opinion on bolder methods.

Another high-value Qaeda suspect captured toward the
end of 2002, Mohamed al Qatani, provoked a major change
of approach at Guantanamo Bay. "There was a spike in a
lot of intel that we were picking up in terms of more
attacks" on America, said Gen. James Hill, chief of the
U.S. Southern Command. "We weren’t getting anything out
of him" using standard techniques outlined in Army
Field Manual 34-52. So CIA and military-intel
interrogators came up with new tactics based on the
sorts of methods that U.S. Special Forces are
specifically trained to resist, a Defense source says.
The Special Forces’ Survival, Evasion, Resistance and
Escape course culminates in interrogations that include
some physical roughing up; sensory, food and sleep
deprivation, and a "water pit" in which detainees have
to stand on tip-toe to keep from drowning.

Some inside the military criminal-investigation units
at Gitmo, especially Navy personnel, approached Navy
Secretary Alberto Mora with their concerns about
violations of the Geneva Conventions. Perturbed, Mora
in January 2003 went to see the Defense Department’s
Haynes and argued that the DOD was getting into
unethical territory, and he warned of unhappiness among
the uniformed military on this issue. Haynes concurred.
On Jan. 15, 2003, according to a chronology supplied by
Pentagon officials, Defense Secretary Donald Rumsfeld
suspended use of the heightened techniques. Haynes, on
Rumsfeld’s orders, then set up an Interrogation Working
Group that issued a March 6, 2003, memo on accepted
practices, which in turn was based on the reasoning of
Yoo’s August 2002 Justice Department brief.

It’s still not clear whether these first decisions made
in the war on terror eventually led to the abuses at
Abu Ghraib. What does seem clear is that despite early
efforts to vet interrogation techniques, the
administration grew less and less careful as pressure
built to get good intelligence. White House officials
last week insisted that President Bush had made clear
in an early-2002 policy directive that torture would
not be used during the interrogation of Qaeda
detainees. "The instructions went out to our people to
adhere to the law," Bush himself told reporters. But
the law according to whom? Bush originally said this
was a war in which the old rules did not apply. But he
may be learning now that they do.