17 Years Since the Notorious Yoo-Bybee “Torture Memos,” the US Still Finds Itself Unable to Successfully Prosecute the Men It Tortured

5.8.19

John Yoo, Jay S. Bybee and prisoners on a rendition plane.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

August 1 was the 17th anniversary of a particularly grotesque and dispiriting event in modern US history, one that has ramifications that are still being felt today, even though it was completely unnoticed — or ignored — by the US media. 

On August 1, 2002, Jay S. Bybee, then the Assistant Attorney General for the Office of Legal Counsel (OLC), the branch of the Justice Department responsible for advising the executive branch on what is, and what is not legal, signed off on two blatantly unlawful memos written by OLC lawyer John Yoo, which attempted to re-define torture, and approved its use on Abu Zubaydah, a prisoner of the “war on terror” that the US declared after the terrorist attacks of September 11, 2001, who was being held in a secret prison — a “black site” — run by the CIA.

The memos remained secret until June 2004, when, in the aftermath of the Abu Ghraib scandal, when photos were leaked of torture in a US-run prison in Iraq, one of the Yoo-Bybee memos was also leaked, provoking widespread disgust, although Yoo and Bybee escaped the criticism unscathed. For his services, Bybee was made a judge on the Ninth Circuit Court of Appeals, while Yoo kept his job as a law professor at the University of Berkeley. 

It later emerged that Bybee’s successor, Jack Goldsmith, withdrew the memos, concluding that they contained “cursory and one-sided legal arguments,” as he explained in his 2007 book The Terror Presidency, but in 2005 the new head of the OLC, Steven G. Bradbury, once more approved the use of torture via memos that were not released until 2009, under President Obama, when the second Yoo-Bybee was also released.

Elsewhere, journalists began investigating the torture program, first revealing its existence in November 2005, and as the scandal grew the Supreme Court delivered a powerful reminder to the government, in Hamden v. Rumsfeld, in September 2006, that Common Article 3 of the Geneva Conventions, which specifically prohibits torture, and cruel, humiliating and degrading treatment, applied to all prisoners in US custody. 

In response, in September 2006, George W. Bush announced that the “black sites,” whose existence he had, until that point, strenuously denied, had in fact existed, but were now closed, as the 14 “high-value detainees” who remained in them (of the 119 men, at least, who were held in total) had been transferred to Guantánamo (although it later transpired that some aspect of the “black site” program still existed, as a handful of other prisoners who had been held in some sort of “black site” scenario ended up being transferred to Guantánamo in 2007 and 2008).

While all of this was unfolding, the FBI distanced itself from the torture program, claiming that they had withdrawn their agents from the “black site” where Abu Zubaydah had been held because of concerns about what one agent called the “borderline torture” to which he was being subjected, as was explained in a report about the FBI’s involvement in interrogations that was published by the Justice Department’s Office of the Inspector General in 2008. 

In late July, or August 2002 — just before or around the time the “torture memos” were issued — FBI Counterterrorism Assistant Director Pasquale D’Amuro met with Michael Chertoff, who was, at the time, the Assistant Attorney General for the Justice Department’s Criminal Division. 

The report stated that, after the meeting, D’Amuro met with FBI Director Robert Mueller and “recommended that the FBI not get involved in interviews in which aggressive interrogation techniques [i.e. torture] were being used.” As the OIG report noted, “He stated that his exact words to Mueller were ‘we don’t so 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.” The report added that “D’Amuro said that the Director agreed.”

Instead, so the story goes, while the CIA continued its torture program, the FBI only got involved again after the 14 remaining “high-value detainees” were transferred to Guantánamo, when, in response to the Bush administration’s belated recognition that the use of torture had made successful prosecutions unlikely, if not impossible, because evidence derived through the use of torture is inadmissible in US courts, the authorities sent in “clean teams” of FBI agents to interrogate the prisoners without the use of torture.

The administration’s intention was to be able to claim that the prisoners in question had produced valid confessions without any mistreatment, although, from the beginning, lawyers for the prisoners asserted that the “clean team” process could not eliminate the lingering effects of torture.

Rather proving their point, last August, just before abruptly resigning as the chief judge of the military commission trial system, Army Col. James L. Pohl, 67, who was appointed in December 2008, and, since May 2012, had also been the judge for the case against the five men accused of involvement in the 9/11 attacks, refused to allow the government to “introduce any FBI clean team statement from any of the accused for any purpose” in the 9/11 trial.

Col. Pohl’s abrupt departure seemed to demonstrate how everyone ends up being worn down to the point of total exhaustion by the broken nature of the military commission system, in which prosecutors seek endlessly to hide evidence of torture, while defense attorneys insist that no fair trial can go ahead without it being publicly aired, and, nearly a year later, the controversy over the use of “clean team” evidence shows no sign of abating.

The “clean teams” weren’t so clean after all

On July 29, just three days before the “torture memo” anniversary, the New York Times published an article by Carol Rosenberg, “Lawyers Press Case That 9/11 Confessions Given to FBI Are Tainted,” updating the story via claims by defense attorneys that “they have growing evidence that the FBI played some role in the interrogations during the years when the suspects were in the secret prisons by feeding questions to the CIA, and that the CIA kept a hand in the case after the prisoners were sent to Guantánamo,” a situation that, they contend, constitutes “a blurring of lines that undercuts the assertion that the confessions extracted after torture could be legally separated from those given by [Khalid Sheikh] Mohammed, [the alleged mastermind of the 9/11 attacks] and his four alleged accomplices to the FBI at Guantánamo.”

The defense team’s claims are based on documents that were turned over to them under court order, the first of which involved a December 2017 pre-trial hearing in the case of Mustafa al Hawsawi, a Saudi national accused of helping the 9/11 hijackers with travel and finances. In the hearing, which challenged whether al-Hawsawi should be tried in a federal court rather than by military commission, Abigail L. Perkins, a retired FBI special agent, said, as the Times described it, that “she had reviewed some of Mr. Hawsawi’s statements to the CIA before she interrogated him in January 2007 as a member of a clean team, four months after his September 2006 transfer to Guantánamo.” She also said that, “while Mr. Hawsawi was held incommunicado at the CIA black sites, the FBI fed questions to CIA interrogators to ask their captives.”

In addition, as the Times explained, “A partially redacted transcript of a national security hearing held last summer at Guantánamo also shows that FBI agents questioned Mr. Hawsawi during his time at a CIA black site but hid their affiliation from him.” At that hearing, the Times also explained, a prosecutor “disclosed that information the government had given defense lawyers to prepare for trial commingled FBI and CIA information [from] the black sites, leaving the impression that it had all come from the CIA.”

Responding to the revelations, Cheryl Bormann, the lawyer for Walid bin Attash, a Saudi national accused of serving as KSM’s deputy, said, “The clean teams were a fiction from the very beginning. There was no separation. It’s all one big team.”

The decision about whether or not to accept the “clean team” evidence will now be decided by the commission’s new trial judge, Col. W. Shane Cohen of the Air Force, who took the job in June. After Col. Pohl’s resignation, prosecutor Jeffrey D. Groharing, who called the “clean team” interrogations “the most critical evidence in this case,” persuaded the interim judge who took over from Col. Pohl, Marine Col. Keith A. Parrella, to reinstate them, but they will now be looked at again by Col. Cohen, in hearings that “could start in September and run until March 2020,” pushing any trial date into 2021 at the earliest, 20 years after the 9/11 attacks.

Before these hearings, however, as the Times put it, Col. Cohen must also “decide the delicate question of how much testimony to take from former black site workers, including agents and contractors whose identities the CIA is shielding by invoking a national security privilege.” The defense lawyers “want the judge to hold an exhaustive hearing on what went on in the CIA prison network between 2002 and 2006 as a basis for deciding whether the clean-team statements are admissible.”

The hearings will probably be lively. In June, at Col. Cohen’s first hearing, James Harrington, who represents alleged 9/11 plotter Ramzi bin al-Shibh, “scolded” the judge for “referring to the FBI interrogations as ‘cleansing’ statements.” Harrington insisted there was “an issue of voluntariness with respect to those statements,” and, as the Times described it, “offered a longstanding defense argument that anything Mr. Mohammed and the other suspects said at Guantánamo was essentially ‘a Pavlovian response’ drilled into the defendants in their three and four years of torture at the black sites, where the lawyers contend that calculated abuse trained the defendants to later tell the FBI agents what the CIA had forced them to say.”

Since the revelations last year, however, the defense lawyers’ position has now shifted to the approach noted above by Cheryl Bormann. As James G. Connell III, who represents KSM’s nephew, Ammar al-Baluchi, described it, also explaining that he has drawn up a list of 112 pretrial witnesses, “Our position is not that the CIA engaged in torture and other cruel, inhuman and degrading treatment and then the FBI did something different. Our position is that the United States, as a whole, had a plan, a scheme or a program — however you want to describe it — to obtain statements from Mr. al-Baluchi [and, by extension, the other 9/11 co-defendants] by torture and other cruel, inhuman and degrading treatment.” 

A long legal battle, then, still lies ahead. If only all those Bush administration officials mired in torture had thought of the legal problems they were creating when they first embarked on their brutal and pointless torture program 17 years ago …

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US), and for his photo project ‘The State of London’ he publishes a photo a day from seven years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

26 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, marking the 17th anniversary of the notorious “torture memos,” written by John Yoo and approved by Jay S. Bybee, which cynically sought to provide a legal basis for the CIA’s #torture program that began with the torture of Abu Zubaydah.

    17 years later, the US is still struggling with the ramifications of the decision to embrace torture, which, of course, is incompatible with justice. Back in 2007, after 14 “high-value detainees” were brought to Guantanamo from CIA “black sites,” the US authorities sent in “clean teams” of FBI agents to interrogate them, claiming that this sidestepped the whole problem of torture-tainted evidence. However, as lawyers for the five men accused of involvement in the 9/11 attacks recently discovered, evidence has emerged showing that the CIA and FBI actually worked together quite closely throughout this whole process, which, they say, means that the “clean team” evidence is inadmissible.

    And all of this, don’t forget, is happening nearly 17 years since the 9/11 attacks, with still no sign of when, if ever, the 9/11 trial will actually go ahead. As I say at the conclusion of my article, “If only all those Bush administration officials mired in torture had thought of the legal problems they were creating when they first embarked on their brutal and pointless torture program 17 years ago.”

  2. Andy Worthington says...

    Natalia R Scott wrote:

    I hadn’t thought about how long ago were those memos written. Incredible this douche is free and hasn’t been held accountable.

  3. Andy Worthington says...

    These two douches, Natalia. Free like all the rest of the criminals who introduced and facilitated the torture program.

  4. Andy Worthington says...

    Toia Tutta Jung wrote:

    These psychopaths are still free and thriving. Still need for awareness.

  5. Andy Worthington says...

    Yes, it seems to have become my role to provide annual reminders of the most chronic aspects of this ongoing injustice, Toia – the deaths at Guantanamo, the issuing of the “torture memos,” the February 2002 memo stripping the prisoners of the protections of the Geneva Conventions. I’m not sure if more than a few hundred people care, but I’m not going to give up.

  6. Andy Worthington says...

    Beverly Spicer wrote:

    War criminals all

  7. Andy Worthington says...

    Yes, not just Yoo and Bybee, but also Bush, Cheney, Rumsfeld, Addington, Gonzales, Haynes, Mitchell and Jessen and many others, Beverly. I haven’t given this an airing for a while: https://thefourfathers.bandcamp.com/track/81-million-dollars

  8. Andy Worthington says...

    Beverly Spicer wrote:

    Agreed, Andy — it goes almost without saying that the progenitors of torture are war criminals and guilty of crimes against humanity. But I consider their lawyers, hired to misinterpret laws to enable them, as just as guilty.

  9. Andy Worthington says...

    Agreed, Beverly – and especially when they have been allowed to get away with misinterpreting the law so blatantly to facilitate crimes against humanity. This has all been going on for so long. It’s over nine years since a fixer at the DoJ was allowed to overwrite the conclusion of an ethics investigation into Yoo and Bybee, downgrading the verdict of “professional misconduct” to one of “poor judgment”: http://www.andyworthington.co.uk/2010/02/23/torture-whitewash-how-professional-misconduct-became-poor-judgment-in-the-opr-report/

  10. Andy Worthington says...

    Beverly Spicer wrote:

    Andy – great great song. Yes, let’s not forget the torture lawyers. How DO we make them pay…?

  11. Andy Worthington says...

    Tristen Schmidt wrote:

    Yoo teaches at UC Berkeley. Where chancellor Carol Christ invites white supremacists to assault the diverse student population.

  12. Andy Worthington says...

    I had missed the Carol Christ story, Tristen. Thanks for raising it. It seems like an eternity since I spent a week at Berkeley opposing John Yoo’s continuing employment as a law professor. It was nearly nine years ago! http://www.andyworthington.co.uk/category/berkeley-says-no-to-torture-week-october-2010/

  13. Andy Worthington says...

    Asiya Muhammad wrote:

    Thank you.

  14. Andy Worthington says...

    You’re welcome, Asiya. Thanks for not forgetting.

  15. Andy Worthington says...

    Angela Gipple wrote:

    Thanks for all you do, Andy. You’ve been on my mind the past few days. Hope all is well.

  16. Andy Worthington says...

    Yes, I’m as well as can be given the state of the world, Angela – Trump in the US, Boris Johnson in the UK, and the planetary environmental collapse that no one in power wants to do anything about. I hope you’re well.

  17. Andy Worthington says...

    Angela Gipple wrote:

    I am. Keep the faith.

  18. Andy Worthington says...

    I will indeed, Angela. All there really is now is the struggle. The stakes are higher than ever before.

  19. Andy Worthington says...

    Laura Dexter Lance wrote:

    Thank you for this important work, Andy. I’ve only had time to skim the larger brushstrokes of this article, but am very interested in reading every word, as this is a history about which I have done a good bit of my own research and am glad to see it being brought to light. I will share widely.

  20. Andy Worthington says...

    Thanks, Laura. Kudos to Carol Rosenberg for staying on the Guantanamo story so resolutely. She’s often the only journalist present during the military commission these days, and her latest story tied in well with the anniversary of those damned memos that I provide reminders of every August.

  21. Anna says...

    Hi Andy, someone plugged the ‘Unredacted’ info on a US blog and then added a link to you in the comments. Enjoy the well-deserved compliments :- ).

  22. Andy Worthington says...

    Do you have a link for that, Anna?

  23. Anna says...

  24. Andy Worthington says...

    Thanks for that, Anna. I hadn’t come across ‘Bracing Views’ before.

  25. Anna says...

    Hope you didn’t miss the comments under the blog text :-).
    William Astore regularly writes for TomDispatch, that’s how I got to know him.

  26. Andy Worthington says...

    Yes, I saw the comments, Anna. Thanks.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer (The State of London).
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