Spanish Court To Investigate Bush's 'Torture Team'

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Spanish Court To Investigate Bush's 'Torture Team'

TERRY GROSS, host:

This is FRESH AIR. I’m Terry Gross.

It looks like the so-called Bush Six may have some company. Last month, a
Spanish court opened an investigation into six Bush administration lawyers
alleged to have provided the legal framework for the torture of detainees at
Gitmo. Torture is a violation of international law.

Today, the judge who opened that case, Baltasar Garzon, Spain’s top
investigative magistrate, opened a new investigation into alleged policymakers
behind torture and those who gave torture orders. Garzon has not named who the
targets will be.

My guest, Philippe Sands, is the author of the book “Torture Team.” It comes
out in paperback in May. Sands is an international lawyer who has been involved
in many international torture cases. The Spanish lawyer you file the criminal
complaint against the Bush Six said that Sands book helped show him who should
be the targets of the investigation.

The Bush Six are Alberto Gonzales, former attorney general; Jay Bybee and John
Yoo, formerly of the Office of Legal Counsel, who wrote the so-called torture
memos; William Haynes, former general counsel for the Defense Department; David
Addington, former legal adviser and chief of staff for Dick Cheney; and Doug
Feith, former Under-Secretary of Defense for Policy.

I spoke with Philippe Sands this morning, minutes after Judge Garzon handed
down his decision.

Philippe Sands, welcome back to FRESH AIR. Can you explain what action the
Spanish court took today?

Mr. PHILIPPE SANDS (International Attorney; Author, “Torture Team”): Well as
you know, there’s been a slightly long, convoluted process. The most recent
decision of Judge Garzon is to confirm that he will proceed to a criminal
investigation in relation to five individuals who are Spaniards or residents of
Spain for abuse and torture of those individuals at Guantanamo and at other
places.

He has extended his investigation beyond the Bush Six, it will include the Bush
Six, to any other person who may have been involved in the decision to subject
those five individuals to abuse and torture.

GROSS: Of all the countries in the world, why is it a Spanish court that is
taking action against the United States for torture?

Mr. SANDS: Well to step back slightly, under the 1984 convention against
torture, any one of the 150 or so states’ parties who have an obligation to
investigate the crime of torture could exercise jurisdiction over events
occurring in Guantanamo, in Bagram or in Abu Ghraib, which constitute torture.

My understanding is that this latest decision by Judge Garzon is based squarely
on the treatment of five individuals of Spanish nationality or who are
residents in Spain who alleged that they were abused at Guantanamo and in other
places in circumstances in which the Spanish courts have already found that
they were so abused and possibly even tortured.

So Spain has apparently a pretty clear connection with five individuals, and
that appears to be the basis, but it’s important, I think, to stress that Spain
is not the only country that is conducting a criminal investigation. My own
country, the United Kingdom, right now is carrying out a criminal investigation
in relation to the circumstances in which allegations of abuse and torture
against a British resident, Binyam Mohamed, occurred.

GROSS: So my understanding is that Judge Garzon, who is the judge handling the
Spanish investigation, it sounds like he may be very frustrated because the
five terror suspects he wanted to prosecute, information incriminating them has
to be thrown out of court because it was gotten through torture and therefore
isn’t admissible in court. So he’s probably pretty frustrated that his case has
fallen apart because of that.

Mr. SANDS: Well that’s right. What seems to have happened is that several years
ago, Judge Garzon decided to bring charges of crimes, terrorism-related crimes,
against the five individuals. When they got out of Guantanamo, he proceeded
with his effort to prosecute them for various crimes, and that case collapsed
because they successfully argued they’d been tortured and abused and said the
material on which he relied, apparently, had been obtained in circumstances in
which it was not admissible in court proceedings.

And against that background, his effort to bring a case, ironically enough,
against individuals he considered to have committed crimes which constituted
terrorism collapsed, and that is the context. And it is that case, which was
closed two or three years ago, which has now been reopened and ironically
turned around to address the individuals who, in effect, he now believes caused
his case to collapse.

GROSS: So now that he’s broadened his case to include people higher up in the
Bush administration, beyond the six lawyers who are now known as the Bush Six,
is it a more consequential case now that it’s broadened? Does the meaning of
the case, does the impact of the case change now?

Mr. SANDS: I don’t think that it necessarily does. The underlying issues are
essentially the same. I mean, under the convention against torture, under the
Geneva Conventions, complicity or participation in torture - which can include
those who framed the legal decisions as well as those who took the policy
decisions - would essentially be the same issues.

He will still face issues of establishing causality connections between the
advice given by individuals and the actual harm, if it is established, to
particular individuals.

So the essential issues are the same, but of course, once you’ve gone beyond
the sort of second- and third-category individuals, who I think played a very
important role – the lawyers, in my view, a key role – you become even more
politically significant, I think, when you go up the scale to include some of
the individuals who were obviously very closely involved with the
administration. So I think politically, it raises the stakes.

GROSS: So you have information saying that Condi Rice is likely to be named in
this second round?

Mr. SANDS: I don’t think his decision names particular individuals, but what
I’m told is that the Intelligence Services Committee list, what was relevant,
and that her name, and I believe also Vice President Cheney’s name, is on that
list. So he, too, may be in Garzon’s mind.

I mean, Garzon has drafted it very broadly, any person who was directly
involved in the decision which led to the abuse of these individuals. So it
goes very high, but it also goes very low.

GROSS: So is there any precedent for naming people this high in a criminal
investigation from another country if the person wasn’t an out-and-out dictator
like Augusto Pinochet of Chile?

Mr. SANDS: Well there are examples, but I think they’re not as, shall we say,
grounded in fact and law. I think this is a different type of situation. It is
potentially very far-reaching, but of course the problem that we all face in
this - and we’re all struggling with this because the U.S. is a well-
functioning democracy; we are where we are because of decisions of the Supreme
Court, because a democratically elected president has released documents - is
that we’ve got pretty much black-and-white evidence that torture happened,
coupled with an obligation to criminally investigate torture.

And what is almost unique here is an admission by a state, an important state,
a very important state, that it has engaged in torture, and that is what
causes, I think, a lot of these real political dilemmas and difficulties.

GROSS: You use the word, obligation, to investigate.

Mr. SANDS: You have an obligation. It’s very clear in the 1984 Convention
Against Torture, in Article five and six and seven, that if a person who is
alleged to have been involved in torture is located within your jurisdiction,
you have a legal obligation, either to subject them to criminal investigation
or to extradite them to a third state.

Now ironically, and this is very ironic, it’s just in the past few months that
the United States has, for itself for the first time, exercised rights of
criminal jurisdiction over a person who committed torture abroad. A non-
American by the name of Chuckie Taylor, the son of Charles Taylor, was
convicted, I think last October, by U.S. federal court of the crime of torture
in Sierra Leone and in Liberia, and he was then sentenced in January, I think,
to 97 years in prison.

And there’s a wonderful press release by the former attorney general,
Mr. Mukasey, warmly welcoming the exercise by the United States of jurisdiction
and the conviction of this individual for the crime of torture abroad.

So ironically, there is even support at the upper echelons of the former Bush
administration for this type of universal jurisdiction, as it’s come to be
called.

GROSS: So now that Judge Garzon has widened this investigation, in order for
him to actually prosecute anybody who he’s investigating, they’d have to be
extradited from the United States to Spain. I think it’s fair to say there’s no
way that President Obama is going to extradite either the six lawyers or anyone
higher than that, certainly not Condoleezza Rice, to Spain for prosecution. So
what’s the significance of this case, considering that there’s probably no way
in the world that anyone will actually be prosecuted?

Mr. SANDS: Well, I should say at the outset, I’m not an expert in Spanish

criminal procedure, so I want to be very careful to stress that, but I
understand that what is likely to happen next is that the investigation will be
followed reasonably shortly, assuming it proceeds without any sort of appeals,
and it may well be that the Spanish prosecutors or the government may appeal
his decision earlier this week.

But if it proceeds unappealed and unhindered, what is likely to happen is that
a court date will be set, and the individuals whom he is targeting following
the conclusion of his investigation will be invited to attend that court
hearing.

If they decide not to attend the court hearing, which is of course the most
likely scenario, the next thing he is able to do is to issue an arrest warrant.
And he can then circulate that arrest warrant internationally, and at the very
least what it would mean is that those individuals would be, assuming how
widely the arrest warrant is circulated internationally, subject to arrest if
they entered a country in which that arrest warrant had validity.

So that’s the most likely medium-term scenario. Added to that, he can, of
course, make a request for extradition, but of course the U.S.-Spain
extradition treaty includes an exception in relation to nationals of each
country, and so I think it’s very unlikely that we’re going to see extraditions
from the United States to Spain.

GROSS: So President Obama has a legal way out here. He can say the extradition
treaty says that American nationals do not need to be extradited. You can just
say no to that. So he can just legally say no.

Mr. SANDS: I’m going to very boringly put in another caveat. I’m not an expert
on U.S. extradition law, so I want to be careful what I say, but I just had a

quick look at the extradition treaty, and it has that exception. So what that
appears to mean, at least under that treaty, there is no obligation to
extradite. But of course there are also obligations to extradite under various
other treaties and obligations to assist in criminal investigations, including
under the 1984 Convention Against Torture, and there are related provisions in
the Geneva Conventions.

So it’s not quite as black and white, and I think that what this is going to
cause President Obama’s administration to do is, again, face one of these
difficult balancing exercises. It’s just put itself squarely in the seat of
being a rule-of-law administration, you get a request from a third country for
assistance on a crime involving senior officials of a former administration,
what on earth do you do?

GROSS: What impact do you think that the recently released memos pertaining to
the interrogation techniques, and also the recently released Senate Armed
Services Committee Report, had on the Spanish court’s decision to add more
people to their criminal investigation?

Mr. SANDS: Well, we don’t know the full details, but it looks as though it’s
had a pretty significant impact, because some of these documents may well have
colored Judge Garzon’s sense of how far to reach in terms of looking at
particular individuals.

So if he is looking at reports that have been published by the attorney general
or the Senate Intelligence Committee or by the Senate Armed Services Committee
and using those to frame his own investigation, then you can see that the act
of release of the documents is having, ironically, the consequence of adding
fuel to foreign investigations. And I think this adds to the context in which
President Obama, of course, will face very real difficulties.

I think his decision to release those documents was brave, and I think it was
the right decision, and I think he’s justifiably earned plaudits around the
world for doing that. And I think it’s also important to remember that whatever
foreign courts or judges may do, ultimately they will, I am dead certain, adopt
the position that if the United States carries out its own investigation and
it’s a half-serious investigation, other countries will back off.

GROSS: My guest is international lawyer Philippe Sands, author of the book
“Torture Team.” We’ll talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Philippe Sands, an international lawyer and author of the
book “Torture Team: Rumsfeld’s Memo and the Betrayal of American Values.” Now
your book “Torture Team” is coming out in paperback, and my understanding is
that this book was very influential on the lawyer who is prosecuting this case
in Spain, and that lawyer is Gonzalo Boye, and also I think on Judge Garzon,
because you mention in your book that you showed some documents to a European
judge. I’m guessing that’s Judge Garzon.

Mr. SANDS: Well, you’re free to guess.

GROSS: Okay, but you’re not going to say, but okay.

Mr. SANDS: I’ve indicated in the main body of the book, which is already
available, that I went to see a European judge and a European prosecutor, and
for obvious reasons I undertook to respect their confidentiality. But you’ll
want to be aware, and your listeners will want to be aware, that obviously I as
a European international lawyer have contacts with a large number of
prosecutors and lawyers and judges in various countries, and I was, for
example, acting for a Belgian prosecutor in the Pinochet case, and I’ve had
extensive contact with Italian, Spanish, German, French, Swedish, Swiss
prosecutors. So I want to respect confidentiality.

GROSS: That’s fine, but I will say that the memos that you showed whatever
European judge it was are very relevant to the case that the Spanish court is
prosecuting now, whether you showed it to the Spanish people or not.

So let’s talk about a couple of those memos that you think implicate some of
the people in what is now known as the Bush Six, the lawyers who the Spanish
court is prosecuting for providing legal framework for torture. And a couple of
these memos pertain to Jim Haynes, who was a lawyer with the Pentagon under
Donald Rumsfeld.

Would you describe one or two of those memos that you think are significant and
give examples of how you think Haynes helped provide legal framework for
torture?

Mr. SANDS: Sure. What I’d done, in fact, as I described in the book when it had
initially come out, I’d wanted a sort of reality check to all the material that
I’d gathered in my interviews. So I went and found a European judge and
prosecutor and put the material that I had – that was about the summer of 2007.

After the book came out, there were hearings, new material came out, and I
thought it would be sensible to go back and reconvene that reality check. And
so I went back to the same European judge and the same European prosecutor with
all these new documents that had come out.

One of the documents showed, for example - and this concerned the testimony of
a person who had been the lawyer, the main lawyer, for General Myers, who was
the chairmen of the joint chief of staff, a lady by the name of Admiral Jane
Dalton. And she testified that when the request from Guantanamo had originally
come up, she had done what she normally did - she sent it out for review to the
military services and their lawyers. And within a couple of days, all of the
services, Air Force, Navy, Marine, Army, came back and just said look, we can’t
do these techniques of interrogation - this is not us, this is criminal, this
is torture. You cannot do it.

She then sent those documents over to Mr. Haynes’ office, of the general
counsel at Department of Defense, and the next thing she knew, very promptly, -
and she described this on questioning to Senator Warner and Senator Levin and
others, was that Mr. Haynes intervened to stop her review.

Now that is enormously significant for any person who’s looking at bringing a
criminal charge, because what it destroys is the idea that Mr. Haynes was
involved in some sort of good-faith lawyering. What it indicates is that when
contrary legal advice was put forward, which said these types of techniques
were inappropriate, he took active steps to snuff out that legal advice. And
that, I suspect, is really going to come back to haunt him.

GROSS: Let me just quote you something that Jay Bybee said yesterday.

Mr. SANDS: Or this morning, yeah.

GROSS: Let me preface this by saying Jay Bybee was the head of the Office of
Legal Counsel, which is the office that advises the executive branch on what is
legal and what is not. And he was the head of the Office of Legal Counsel when
the so-called torture memos were written, and he signed those memos.

So he said the central question for lawyers was a narrow one: Locate, under the
statutory definition, the thin line between harsh treatment of a high-ranking
al-Qaida terrorist that is not torture, and harsh treatment that is. I believed
at the time and continue to believe today that the conclusions were legally
correct. We gave our best honest advice based on our good-faith analysis of the
law. What’s your reaction to that?

Mr. SANDS: Well I was shocked when I read that. I would have hoped that a man
like Jay Bybee, who is a federal judge, would have had the honor and decency to
say, with the passage of the time and on the basis of reflection, I now
recognize that I fell into error. I accept my responsibility for having done
that. I should not have signed that memo.

He hasn’t done that. He’s dug himself into an even deeper hole. I suspect he’s
done it because he is right now under investigation by the Office of
Professional Responsibility, the Department of Justice, and perhaps by his own
bar association, and there may even been impeachment proceedings against him.

I think the braver and more honorable thing to do would have been to recognize
that he fell into error, and I have to say, reading that interview for the
first time, I felt really very strongly that this was not a gentleman who
really ought to be sitting on the bench of a U.S. federal court.

I mean, sitting here in London, I have to tell you, U.S. federal courts are
immensely respected institutions. It’s not a political thing. It’s not a left-
right thing. These are hugely important courts that our English courts look to,
that foreign courts look to - and the idea that a lawyer who signed off on
waterboarding and still thinks today that it is not torture should sit on such
a court is frankly, distressing and I would say even shocking.

GROSS: Now the Spanish lawyer, Gonzalo Boye, who is prosecuting the case
against the so-called Bush Six, six of the lawyers involved with providing the
legal framework for what has been called torture, he told Jane Mayer of the New
Yorker that your book, “Torture Team” played a big role in his thinking and
that your book showed him who the targets of the investigation should be.

What role do you think your book has played in the Spanish court’s
investigation into American torture, and how do you feel about whatever role
you think your book has played?

Mr. SANDS: Well, I think it’s probably for others to judge what exactly the
role has been and whether that’s a positive or a negative thing. I suppose at
the back of my mind, I imagined that as some point in the future, something may
happen, but I’ve been immensely surprised at the speed with which things have
happened and have been almost overwhelmed, I’ve got to say, in the last two
weeks, particularly as President Obama has released documents and then has
appeared to endorse at least my underlying thesis, by saying the responsibility
of the framers of the legal decision is a matter for the attorney general, not
a matter for the president - which appears to open the door to at least the
possibility of criminal investigations.

GROSS: Well, I want to thank you very much for talking with us.

Mr. SANDS: Thank you again, Terry, and thank you for following in on this
because I’ve really appreciated the opportunity to talk fairly on these rather
complex, but interesting, issues.

GROSS: Philippe Sands, recorded from the BBC in London this morning. His book,
“Torture Team,” will be published in paperback in May. I’m Terry Gross, and
this is FRESH AIR.
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Reporter Scott Shane On ‘Torture Memo’ News

TERRY GROSS, host:

This is FRESH AIR. I’m Terry Gross. You may be surprised to hear that some top
people in the Bush administration and CIA say they didn’t know about the brutal
interrogation techniques they authorized. My guest Scott Shane co-wrote an
investigative article about this with Mark Mazzetti in The New York Times.
Shane is a national security correspondent based in Washington and has been
covering among other things the recent release of Bush administration
interrogation memos. Scott Shane welcome to FRESH AIR.

I want to start by just reading the opening of an article that I found really
shocking that you wrote last week. And here is the opening: In a series of
high-level meetings in 2002, without a single dissent from cabinet members or
lawmakers, the U.S. for the first time officially embraced the brutal methods
of interrogation it had always condemned. This extraordinary consensus was
possible largely because no one involved, not the top two CIA officials who
were pushing the program, not the senior aides to President George Bush, not
the leaders of the Senate and House Intelligence Committees investigated the
gruesome origins of the techniques they were approving. What didn’t they know
about these techniques?

Mr. SCOTT SHANE (Reporter, The New York Times): Well, what the CIA officials
failed to include in their briefings was the origin of the SERE program, this
military training program. Under different names it’s existed since the ‘50s
and it came out of the experience in the Korean War in which American pilots
were taken prisoner, held by the Chinese, and subjected to a lot of harsh
interrogation methods. And some of them ultimately gave false confessions to
various war crimes. This caused a huge upset in the military and with the
public.

And there were this notion that the Communists somehow had secret brainwashing
techniques. So a lot of people were assigned with government money, mostly from
the Defense Department, to study the question of what did the Chinese do to
force these false confessions out of American prisoners. And what they found
was, there was no secret sophisticated brainwashing, it was just shackling
people in stress positions forcing them to stand for days on end, keeping them
in cold cells, that kind of thing. And that had the result of breaking them
down and causing them to essentially do whatever they were asked to do. In this
case they were asked to confess war crimes.

The military then wanted to essentially prepare high risk personnel - flyers,
special operations, troops and certain categories of folks who are seen at high
risk of capture - and give them a taste of these kinds of methods, this is all
during the Cold War still. So that – not so they could withstand the methods
exactly but so that it wouldn’t come as such a shock. And they would perhaps be
able to resist better. And this became a standard part of military training –
it was fairly secret but it was operated by several branches of the military
services in a number of locations around the country.

And the navy included in it’s interrogation methods in this training program,
waterboarding, the now infamous interrogation method where a person is strapped
to a board with the head beneath the feet. The mouth, nose are covered with a
cloth and someone pours water over the cloth to create a sort of panic
sensation of suffocation and drowning, and sometimes people ingest water. And
they would do that as part of their training. So all these methods became sort
of institutionalized in this training – military training program. And I’m told
that many people even involved with the program sort of lost track or never
heard about the origins.

GROSS: So you found that most of the people who signed off on this program and
went along with this program, who practiced the program, had no idea of the
origins of the program which is why there was no disagreement about it’s use.
We ought to find out who decided to use this SERE program as a way to

interrogate high value suspects.

Mr. SHANE: Yes, what we’re told was that the CIA, when it was given the job of
capturing and questioning high level al-Qaida suspects by President Bush, had
very little interrogation experience. They had some experience assessing what
they call walk-ins, someone who walks in to an embassy somewhere and says I
want to spy for the United States. So they were somewhat used to questioning
people and judging whether they were being deceptive. But in terms of a purely
hostile interrogation, where you capture someone in virtually a military
situation, they had very little experience. The FBI had a lot of experience and
the military had some experience, CIA had very little.

So the CIA reached out to a number of foreign intelligence agencies and asked
them how they interrogated folks. And they reached out to this military
training program, the SERE program. And there were some enthusiastic
psychologists from the SERE program who came over to CIA, became consultants,
and convinced top CIA officials that this was the way to go. These were the
methods that should be used.

GROSS: Didn’t the psychologists who work with the SERE program know that it’s
original use was to extract false confessions?

Mr. SHANE: That is an answer we don’t have yet. There was a guy named James
Mitchell who is a PhD psychologist who worked for years - he was in the air
force on active duty, then he was a civilian employee of the defense department
as a SERE psychologist. He had monitored thousands of these mock interrogations
that were carried out as part of the training program. But he had never
actually carried out an interrogation – a real interrogation himself. But he
apparently is a very convincing guy and he came to the CIA and said this is
what you want to do and this is how it works and explained the whole thing.
Whether he knew and kept to himself the origins of the program, whether he
shared the origins of the program with some folks in CIA is still unknown.

We haven’t been able to find that out. But one thing we have been told with
some authority is that the top two officials of CIA, George Tenet the director
and John McLaughlin his deputy - who were the main people went over to the

White House to explain these methods and sell them, so to speak, to the rest of
the government - themselves have told, they have told colleagues, that they had
no idea, first the origins of the SERE program and second they didn’t have any
idea about the rather lurid history of waterboarding in particular.

Because waterboarding in various forms has been used by virtually every
despotic regime as a torture method, going back to the Spanish Inquisition and
any of them before that. And the top CIA officials who are proposing
waterboarding to the rest of the government, themselves, have told people that
they had no idea about that history.

GROSS: Do you find that kind of amazing?

Mr. SHANE: Yes. My colleague Mark Mazzetti and I found that quite amazing. We
were somewhat skeptical about it and we kept reporting, talked to a lot of
people, and finally became convinced that that was the case. There was this
possibility that rather than say I knew that waterboarding was used by Pol Pot
under the Khmer Rouge in Cambodia and that there is a - Pol Pot’s waterboard is
preserved there in the genocide museum in Phnom Penh - rather than say they
knew that it might be, you know, more politically advantageous to say, jeez, I
didn’t know anything about that.

But when you consider the sort of rush and pressure under which these decisions
were made and when you talk to enough people, you actually - you know, we did
convince ourselves that this was true. They really didn’t know. In a way they
were saying we weren’t evil, we were ignorant. And that seems to be holding up
so far.

GROSS: My guest is Scott Shane, a national security correspondent for the New
York Times. We’ll talk more after a break. This is FRESH AIR.

(Soundbite of music)

My guest is Scott Shane, a national security correspondent for the New York
Times. He co-wrote an investigative article revealing that top Bush
administration and CIA officials say they didn’t know that the brutal
interrogation techniques they’d authorized came from the military program
called SERE. The program was created during the Cold War to give American
soldiers a taste of the Communist torture techniques that might be used against
them.

Here’s another question that’s been raised since the SERE program was known by
anyone who actually knew it to have been used by the Communists to extract
false confessions from Americans that perhaps the SERE program was
intentionally being used to try to extract false confessions from al-Qaida
suspects.

Let me paraphrase something from the U.S. Senate Armed Services Committee
report that was recently released that was investigating these brutal or
torture techniques. And this is from Major Paul Burney who was a U.S. army
psychiatrist assigned to interrogation at GITMO in the summer of 2002. And he
said that there was pressure on interrogators to prove the connection between
Iraq and al-Qaida, to prove that there was a connection. And he said that there
was more and more pressure to resort to measures that might produce that kind
of answer. And the implication here is that there was pressure to use harsher
and harsher techniques in order to get the information that the Bush
administration wanted, the information that yes, there’s a connection. And this
was before the invasion of Iraq.

So some people are saying that, yeah we used these SERE techniques
intentionally to get false confessions of a connection between Iraq and al-
Qaida to help the Bush administration justify the impending invasion of Iraq.
So I wonder if you feel that connecting those dots has any justification based
on what you’ve learned.

Mr. SHANE: I think not. I think it’s sort of two different issues - and also of
course Guantanamo was by and large a Defense Department operation rather than a
CIA operation. The waterboarding and so on was done at the CIA secret prisons.
It is certainly true, as far as I can tell, that the CIA adopted these methods
with very little investigation of their history in producing false confessions.
And you would think that that would’ve worried them a great deal.

But I do think that they were, sincerely at that point, desperately trying to
detect the next attack, this is still in the months after September 11th. And
there was a feeling widely shared certainly by many Americans that there could
be more attacks coming. And the CIA was terrified that one of these prisoners
that they caught would know about the plot and they wouldn’t get the
information. I think that was a different track from the pressure that began to
build to come up with reasons to invade Iraq.

That of course has been well documented and there is one torture related
element to that. In late 2001, the United States caught a guy named Ibn al-
Shaykh al-Libi who, after bit of a dispute between the FBI and CIA, the CIA
shipped off to Egypt to be interrogated. There, according to a number of
reports, he was subjected to torture and invented some information about ties
between al-Qaida and Saddam Hussein, which fed back into the case for war.

But I think it’s perhaps a little too devious to imagine that they were
torturing these guys in hopes that they would falsely confess to something that
would strengthen the case for war. You know if you were going to go to those
kinds of length in inventing evidence you could just invent the evidence, you
could falsify documents. I don’t think you’d have to torture people in, you
know, until they said what you wanted. But of course all this remains a bit of
a black box. And we don’t really know the details of either the motivations or
what really happened in some of these interrogations, both at Guantanamo and in
the secret prisons.

GROSS: Now you’re saying that even people at the top of the CIA, even George
Tenet who was the head of the CIA, didn’t know the origins of the SERE
techniques, the - which was the basis of the U.S. harsh interrogations or
brutal - or torture, or whatever word you prefer. So if people at the top of
the CIA didn’t know the history of SERE and of these techniques, what about the
lawyers at the Justice Department who were justifying these techniques? Do you
have any idea whether they knew the history of the SERE program, or whether
they knew the history of waterboarding and how it dated back to the Spanish
Inquisition?

Mr. SHANE: I don’t know for sure. We now have, of course, a series of memos,
two of them written in August 2002 and mainly by John Yoo, one of the justice
department lawyers and signed by Jay Bybee, his boss, and then three more
written in 2005 and signed by Steven Bradbury who had come to the office of
legal counsel of justice subsequently. So we can read those memos, but it’s of
course impossible to know whether their authors knew certain information that
they deliberately kept out or whether they just had no idea.

One thing that’s particularly striking about the Bradbury memos in 2005, which
were not written under quite the pressure of the August 2002 memos, is that
they omit to tell the CIA, this is legal advice to CIA, they omit to tell the
CIA that waterboarding was one of the war crimes investigated in the Tokyo
trials against the Japanese, carried out by the United States against the
Japanese after World War II. There are descriptions, there was testimony from
American prisoners who were waterboarded by the Japanese - you would think that
that kind of history of prosecution would be an important thing to include in a
memo advising the CIA on whether they would get in trouble using these methods.

And in addition to that, there was even a domestic case of a sheriff in Texas I
believe, which had been appealed. So there was an appellate record of a
waterboarding prosecution that also could’ve been included in those memos. And
they were not. Whether again this is a question of somebody not knowing or
knowing and deliberately keeping it out, you know, remains to be seen.

There’s an ethics investigation of Mr. Bradbury, Mr. Yoo and Mr. Bybee that has
been conducted for several years now by the ethics office of the Justice
Department. And it’s supposed to come out in the next couple of months, I’m
told. So perhaps, we’ll learn the details.

GROSS: One of the things we learned from the recent released Senate Armed
Services Committee report is that Abu Zubaida, one of the high value al-Qaida
suspects, was waterboarded 83 times in one month and Khalid Sheikh Mohammed,
another high value al-Qaida suspect who was believed to be the mastermind
behind 9/11, was waterboarded 183 times in one month. I’m wondering if you have
any idea whether there is any historical precedence for waterboarding one
person so many times in such short a period of time.

I mean, I’m just trying to figure out what it says about the people doing the
waterboarding, that if it doesn’t work, that you would just keep trying it over
and over and over and over and over and over again.

Mr. SHANE: Well those numbers came as a shock to a lot of people, including
reporters like me who have spent a lot of time looking into this program,
partly because a former CIA officer who was involved in catching Abu Zubaida,
John Cheriaku(ph), had said first on ABC News and then to a bunch of us,
including me, that Abu Zubaida had been waterboarded for 30 seconds before
breaking, essentially, and agreeing to tell everything and then after that he
just sat down and told everything he knew.

And so to learn that that was wrong and that, in fact, they had waterboarded
Abu Zubaida 83 times was sort of remarkable. The only defense I guess you could
say that I’ve heard of that since then was from a CIA official who spoke on
condition of anonymity and what he said was this method did not turn out to be
the sort of magical technique that it had been sold as. It was sold as
something that you would do to someone for, you know, 30 seconds or two minutes
and they would panic and they’d be so frightened that they would then sit down
and tell you everything.

But they used it until someone would agree to talk and they wouldn’t be in
other words sort of shouting their answers in the style of the TV show “24”
from the waterboard. One set of guys would waterboard Abu Zubaida or Khalid
Sheikh Mohammed and when the prisoner said okay, you know, I’ve had enough,
I’ll talk, sometimes hours would pass before he would be put in another place
in a more comfortable setting with an interrogator who then ask him questions.
So the defense was that this was used to sort of break resistance and get these
guys to agree to talk as opposed to having them, sort of, shouting out answers
under pressure.

But, I think, it’s raised grave questions about the claims that this is a very
effective interrogation method. One of these legal memorandums that came out
last week also revealed that the CIA inspector general, in a still secret
report from 2004, had found that some of these techniques, and in particular
waterboarding, had been used in ways that violated the Justice Department’s
guidelines. The Justice Department said, these methods are legal, these methods
are not torture. But that was based on the rules that were supposed to be
governing their use. And the CIA Inspector General in 2004 found that both in
terms of frequency and in terms of the volume of water used that the
interrogators had exceeded the guidelines that they were given by the Justice
Department.

GROSS: If you’re just joining us, my guest is Scott Shane. He is a national
security reporter in the Washington bureau of the New York Times. Scott, let’s
take a short break here and then we’ll talk some more. This is FRESH AIR.

(Soundbite of music)

GROSS: If you’re just joining us, my guest is Scott Shane. He is a national
security reporter in the Washington bureau of the New York Times. And we’re
talking about some of the new information about the brutal interrogation
techniques that the United States has used. Former Vice President Dick Cheney
and some others are still saying that these techniques worked. And you write
that even the most exacting truth commission may have a hard time determining
for certain whether brutal interrogations conducted by the CIA helped keep the
country safe. Why do you think it will be so hard to determine for sure if
these techniques actually resulted in information that helped deter a terrorist
plots?

Mr. SHANE: Well, I think, if there’s strong evidence that valuable information
came from this program and ultimately led to the capture of a lot of key al-
Qaida leaders and that probably prevented future attacks - but whether these
particular methods were necessary to get that information is a very different
question. It’s, sort of an uncontrolled experiment. They used these methods and
they got the information. Many experienced FBI and military interrogators will
tell you that they believe you could have gotten the same information, possibly

more information, using traditional rapport building methods. They don’t think
these harsh methods were necessary and they think they risked producing false
information as well.

GROSS: But wasn’t some of the information from, for instance, Abu Zubaida
gotten before these techniques even started, when there was just more
traditional rapport building interrogation?

Mr. SHANE: Absolutely. There were two FBI agents who began questioning Abu
Zubaida before the CIA team arrived. And they got a number of very important
revelations from him, not only not using the brutal methods but actually caring
for him. He’d been shot when he was captured and so he was in pain. And they
actually did, sort of, personal medical care for him and talked to him and got
him to give up some very valuable information. By some accounts, the most
valuable information was given up before they began any of these harsh
techniques.

GROSS: I’d like to hear what you think were one or two of the most important
revelations that come out of either the memos that were recently released or
the Senate Military Affairs Committee report that was recently released.

Mr. SHANE: Well, I think from the memos perhaps the single most shocking fact
was that waterboarding was used so frequently against two prisoners - 83 times
again Abu Zubaida and 183 times against Khalid Sheik Mohammed - that certainly
calls into question claims that some CIA officials had made about how effective
waterboarding was in getting people to talk. From the Senate Armed Services
report, I think one of the interesting revelations was that at a low level a
number of these SERE program trainers, who were very familiar with these
techniques, warned in emails and in memos that they should not be used on an
offensive basis.

That they were essentially the enemy’s techniques and they were only part of a
training program to give American military personnel some sense of what they
might face at the hands of the enemy. They had always been considered
historically to be torture and not to be effective as interrogation techniques.
They’d been proven to generate in some cases false confessions. But these were
relatively lower level people who were sending off these warnings and as far as
I can tell they reached no one at a high level in the CIA. And they were
ignored by some high level military officials who got them.

GROSS: Do you think that there would be serious obstacles to criminal
prosecution in the United States?

Mr. SHANE: Yes. Most lawyers say that there is a huge obstacle to criminal
prosecution for any one from President Bush all the way down to the lowest
level interrogator. And that is that the highest authority on the law, in the
executive branch, which is the office of legal counsel of the Justice
Department, in writing told these folks that what they were doing was legal.
That would seem to be – to make prosecuting them very, very difficult.

The only exceptions to that would be possibly the lawyers who wrote the memos
themselves, if they were found to have acted in bad faith, to essentially say
that these methods were legal when they knew them to be illegal. Or some
interrogators who are said by the CIA inspector general to have exceeded the
guidelines by waterboarding people with greater volumes of water and greater
frequency then they were permitted to do. That might also give some kind of an
opening for prosecution. In general, I think most experienced prosecutors and
criminal defense attorneys are very skeptical that any one will actually be
prosecuted for these acts.

GROSS: Well, Scott Shane, I want to thank you very much for talking with us.

Mr. SHANE: Thanks so much for having me.

GROSS: Scott Shane is a national security correspondent in the New York Times
Washington bureau. You can download podcasts of our show on our Web site
freshair.npr.org.
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