James Mitchell Asked, ‘Please Can I Torture Abu Zubaydah?’; Did Alberto Gonzales Say Yes?

Created: May 20, 2009 17:54 | Last updated: July 31, 2020 00:00

Ex-FBI agent Ali Soufan’s account of the interrogation of Abu Zubaydah is roughly this: he and several other interrogators from both FBI and CIA objected to the application of torture techniques from at least April to June 2002 (after which point Soufan left the interrogation team) from a former SERE psychologist and CIA contractor named James Mitchell. Ultimately Mitchell’s techniques — the waterboard, the “confinement box” — received the blessing of the Justice Department’s Office of Legal Counsel on August 1, 2002, though Abu Zubaydah was treated harshly before then.

NPR’s Ari Shapiro adds significant new information to that picture. According to Shapiro, Mitchell was in frequent contact with the CIA’s Counterterrorist Center from the site at which Abu Zubaydah was being held, asking for approval for the use of his techniques, and the ACLU yesterday obtained a document to support the claim. Counterterrorist Center officials apparently ran the gauntlet for approving the techniques up to White House counsel Alberto Gonzales.

The source says nearly every day, Mitchell would sit at his computer and write a top secret cable to the CIA’s counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the Administration’s legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.

A new document is consistent with the source’s account.

Late May 19, the CIA sent the ACLU a spreadsheet as part of a lawsuit under the Freedom of Information Act. The log shows the number of top secret cables that went from Zubaydah’s black site prison to CIA headquarters each day. Through the spring and summer of 2002, the log shows someone sent headquarters several cables a day.

Now, note that Gonzales at the time wasn’t the attorney general. He wasn’t the chief legal official for the government. He was the president’s lawyer, powerless to bless the actions of a federal agency like the CIA. (Shapiro quotes a number of ex-officials who establish that point.) A separate CIA-White House channel in the spring of 2002 would, at the least, contextualize the CIA’s efforts at getting the approval of the Justice Department for the harsh interrogation regimen — though it’s unclear what legal butt-covering Gonzales would have been able to provide in the first place. Gonzales didn’t respond to NPR, according to Shapiro.

If you go to this page and click on “List of Contemporaneous and Derivative Records (May 18, 2009)” then you can see this voluminous log. There are 580 listed communications from the “field” to CIA headquarters, almost all from 2002. It takes until communication #471 before reaching a point in time when the communication could be about a different detainee from Abu Zubaydah, since it’s not until sometime in November 2002 that Abd al-Rahim al-Nashiri, another detainee the CIA waterboarded, was captured. And 249 of these communications occur before the August 1, 2002 Office of Legal Counsel memo blessing the torture techniques Mitchell advocated. [UPDATE: Marcy Wheeler emails to remind me that the International Committee of the Red Cross' report on the CIA's ex-detainees lists al-Nashiri's arrest as occurring in October 2002 in Dubai, so there are 415 communications that could only be about Abu Zubaydah, not 470. The ACLU's Jameel Jaffer says that these logs, obtained thanks to their lawsuit about the CIA's destroyed torture tapes, only concern the interrogations of Abu Zubaydah and al-Nashiri.]

This still doesn’t address a central question raised by Soufan’s testimony to a Senate Judiciary Committee subpanel. If Soufan is telling the truth, then someone at the CIA must have overruled the agency’s own torture-dissenting interrogators at the Abu Zubaydah interrogation in favor of Mitchell, an agency contractor. Did any of them send cables to the Counterterrorist Center? Was the Counterterrorist Center aware of their objections to torturing Abu Zubaydah? And if so, why did they overrule their own officers in favor of a contractor who didn’t come from an agency that conducts interrogations? Cofer Black was head of the Counterterrorist Center when the interrogation of Abu Zubaydah began — he’s now an official with Xe — and Jose Rodriguez, he of the torture-tapes destruction scandal, took over for Black in May 2002. What did they know and when did they know it? How many of the communications to CIA headqurters listed in the logs were from CIA interrogators at Abu Zubaydah’s interrogation chamber objecting to Mitchell’s techniques?

Steve Kleinman, an Air Force Reserve colonel and a trained interrogator affiliated with the military office that oversees the SERE program, told me last week that the real linchpins here aren’t Mitchell and his SERE colleague, Bruce Jessen, but the senior CIA officials who gave them contracts in late 2001 and “brought [them] in with eyes wide open, to run an interrogation program.” These logs give Kleinman more support for that proposition.