Guantánamo was also a bust as a place to bring terrorists to justice. By the time the Obama administration came into office seven years after the prison had opened, of the some eight hundred detainees sent to Guantánamo, the government had convicted only three prisoners. One was David Hicks, an Australian who plea-bargained his way out. Another was Salim Hamdan, bin Laden’s driver, whom the prosecution had portrayed as some sort of big deal within al-Qaeda, but when it came to his sentencing he was given time served plus five months. The Hamdan case was ridiculous on its face; at the end of World War II, Hitler’s driver was not tried as if he were a senior Waffen SS officer. Self-confessed al-Qaeda operative Ali Hamza al-Bahlul was convicted of conspiracy, solicitation to commit murder, and providing material support for terrorism in November 2008 and was sentenced to life. But these three cases represented a successful prosecution rate of less than 0.5 percent at the prison camp.
And Guantánamo was a place where American interrogators in at least one case tortured an al-Qaeda member to the point he was no longer prosecutable in any U.S. court. This was not the conclusion of a liberal advocacy organization but of a senior Pentagon official, Susan Crawford. Crawford was a retired judge who had served as general counsel for the U.S. Army under President Reagan and was appointed to oversee the military commission process at Guantánamo by the Bush administration. In January 2009, Crawford said that the cumulative effects of sustained isolation, sleep deprivation, nudity, and prolonged exposure to cold on the Saudi prisoner Mohammed al-Qahtani met the legal definition of torture. Crawford also said that this treatment had threatened to kill Qahtani and as a result of this abuse she could not refer his case for prosecution.
Qahtani had tried to enter the United States at the airport in Orlando, Florida, in the summer of 2001. Given the fact that lead hijacker Mohammed Atta was probably waiting for him outside the airport, Qahtani was likely to be the twentieth hijacker. But he was turned back by a savvy immigration official who was suspicious of the fact that Qahtani spoke no English, had very little money, and was traveling on a one-way ticket.
Qahtani was later detained in Afghanistan and sent to Guantánamo. At one point there he was interrogated for forty-eight days, more or less continuously, between November 23, 2002, and January 11, 2003. Loud music and white noise were played to prevent him from sleeping. Qahtani was forced to perform dog tricks and often exposed to low temperatures. At a certain point his body started closing down and he was given drugs and enemas so that the interrogations could continue. An FBI official noted in a letter to the Pentagon in June 2004 that Qahtani began “evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reporting hearing voices, crouching in a cell covered with a sheet for hours on end).”
It should have been obvious that using coercive interrogation techniques on Qahtani was not going to yield much. Anyone with the most superficial understanding of al-Qaeda would have understood that Qahtani, as one of the “muscle” hijackers, might have known a great deal about the training regime at al-Qaeda’s camps in Afghanistan, but that would be the extent of his knowledge. Until the last moments of the operation, the muscle hijackers didn’t even know what the targets were on 9/11, let alone the outlines of other al-Qaeda plots, nor did they have much contact with the leaders of the terrorist organization. The abuse of Qahtani produced little valuable intelligence and, in the end, meant that he would not stand trial for his peripheral role in the 9/11 attacks.
Critics of Guantánamo compared it to a gulag. This, of course, was nonsensical. The Soviet gulags killed millions through starvation, executions, and forced labor. The issue at Guantánamo was not, generally speaking, the problem of the prisoners’ treatment. The real issue was that many of the prisoners at Guantánamo were innocent; were held for years without explanation, some in solitary confinement and were unable to see lawyers during the first three years that the prison operated. Their very presence at the facility was kept a secret for years because the military would not release the names of detainees until April 2006. Such forced disappearances were human rights violations that the United States had in the past condemned, whether committed by right- or left-wing dictatorships.
Prisoners at Guantánamo faced trial before “military commissions,” a legal concept that many Americans probably assumed was similar to the court-martial system for U.S. servicemen or foreign soldiers captured on the battlefield accused of all manner of crimes, including war crimes. In fact, a military commission is a very different proceeding than a court-martial, which gives defendants many of the same kind of rights that an American civilian trial entitles them to. In the military commission system the accused was not able to see all of the evidence against him, and “evidence” obtained by coercion and hearsay was admissible in the proceedings.
In June 2006 the Supreme Court ruled in Hamdan v. Rumsfeld that the prisoners in Guantánamo were covered by the Article 3 protections of the Geneva Convention, which prohibit abusive or humiliating treatment of prisoners, something that the Bush administration had denied was the case for four years. It was a landmark decision of the court because it determined that even in a war no president was above the law. There was an irony here: Cheney and others on his staff had pushed hard to turn the presidency into a quasi-monarchical office and in so doing had ended up creating case law and precedent that would serve as an important brake on presidential powers for the foreseeable future.
On August 1, 2002, the White House lawyer John Yoo wrote a classified memo narrowly defining the crime of torture. According to Yoo, American interrogators could legally inflict pain short of that “accompanying serious physical injury such as organ failure, impairment of bodily function, or even death.” Interrogators could also inflict mental pain, but only short of the point where it resulted “in significant psychological harm of significant duration, e.g., lasting for months or even years.” The memo also concluded that inflicting “cruel, inhuman, or degrading” treatment on a prisoner wasn’t necessarily something that American interrogators risked being prosecuted for. This seemed more the reasoning of a mob enforcer than an official in the Office of Legal Counsel, the White House’s elite group of in-house lawyers, whose opinions guide the actions of the executive branch. (And if these were the opinions of a Harvard-educated, Supreme Court clerk turned law professor, as Yoo was, it is not entirely surprising that, as these ideas filtered down to soldiers in the rank and file, you ended up with the human pyramids of naked Iraqi prisoners at Abu Ghraib.)
Zein al-Abideen Mohamed Hussein, generally known as Abu Zubaydah, a Palestinian al-Qaeda logistician in his early thirties, was believed to be the highest-ranking member of the terror group to be taken alive in the first months after 9/11. That made him the subject of intense interest from American officials, since, by early 2002, there was no one as yet in custody who they believed could tell them about what form the next terror attack might take. As a result, many of the Bush administration’s coercive interrogation techniques would first be applied to Abu Zubaydah.
In February 2002, the CIA station in Islamabad had learned that Abu Zubaydah was either in Lahore or Faisalabad, Pakistani cities with large populations in the east of the country. Intelligence officials also discovered Abu Zubaydah’s cell phone number, but he used it only briefly and infrequently. Agency officials narrowed down to fourteen the possible locations where Abu Zubaydah might be living. At 2 A.M. on March 28, 2002, Pakistani army units hit all of them.
Abu Zubaydah was captured in a shoot-out in Faisalabad in which he was shot three times and critically wounded, losing a testicle in the firefight. So grave was Abu Zubaydah’s condition that the CIA arranged for a leading surgeon from the Johns Hopkins Medical Center in Baltimore to fly to Pakistan to save his life and revive him to the point that he could be interrogated.
The interrogation of Abu Zubaydah set the stage for a carefully concealed battle between the FBI and elements of the CIA, backed by senior Bush administration of
ficials, about how best to obtain information from suspected terrorists in American custody. The Bureau favored traditional rapport-building techniques, while some Agency and White House officials successfully pushed for coercive interrogations that verged on torture.
Abu Zubaydah was the first detainee to be placed in a secret overseas CIA prison, this one located in Thailand. There he was interrogated by Ali Soufan, one of the few Arabic-speaking FBI agents. Soufan softened up Abu Zubaydah by calling him “Hani,” the childhood nickname his mother had used for him, a fact that the FBI agent had gathered from intelligence files. The approach started yielding quick results.
When Abu Zubaydah was shown a series of photos of al-Qaeda members by Soufan, he identified Khalid Sheikh Mohammed as “Mukhtar,” meaning “the chosen” in Arabic. This was a key to unraveling one of the great mysteries of the attacks on New York and Washington, because in an al-Qaeda videotape recovered by American forces in Afghanistan a few months after 9/11, bin Laden had referred to a “Mukhtar” as someone who had some sort of a plan for a “tall building in America.”
Soufan remembers puzzling over the bin Laden videotape. “It was annoying the shit out of me: Who is Mukhtar?” Abu Zubaydah had now identified Mukhtar to be Khalid Sheikh Mohammed. KSM had been known as a jihadist to U.S. authorities since 1993, when his name surfaced in the FBI’s investigation of the World Trade Center bombing; but his central role in 9/11 came as a complete surprise to investigators.
Abu Zubaydah’s confirmation of KSM’s role in 9/11 was the single most important piece of information uncovered about al-Qaeda after the attacks on the Trade Center and Pentagon, and it was discovered during the course of a standard interrogation, without recourse to any form of coercion. Soufan recalled that Abu Zubaydah gave up the information about a week or so into his interrogation.
In the top-secret memoranda prepared by the White House’s Office of Legal Counsel that authorized coercive interrogation techniques on Abu Zubaydah, he was variously described as “one of the highest ranking members of al-Qaeda,” either the number three or four in the terror group, and as one of the planners of 9/11. In fact, within weeks of Abu Zubaydah’s capture it became clear to at least some U.S. officials that he was not “al-Qaeda’s chief of operations,” as he had been publicly described by President Bush on June 6, 2002, but rather someone who was a logistician for militants in Pakistan on their way to training camps in Afghanistan. Daniel Coleman, the al-Qaeda expert at the FBI, says that Abu Zubaydah was simply a “travel agent; he wasn’t a member of the inner circle” who would know about future operations, although he did know many members of al-Qaeda by virtue of his role as a “safe house keeper.”
But believing that Abu Zubaydah was, in fact, a very big al-Qaeda fish, the White House lawyers authorized continuous sleep deprivation of up to 180 hours (one week), face slapping, extended nudity (including in front of females), dietary manipulation, confinement in cramped boxes, being slammed into a flexible wall and, of course, “the waterboard.” The Office of Legal Counsel noted that these techniques were supposed to induce “a state of learned helplessness” in the detainee, who would then supposedly be putty in his interrogator’s hands.
This piece of pseudoscience was the brainchild of James E. Mitchell, a retired psychologist who had worked with the military’s SERE program (Survival, Evasion, Resistance and Escape), which is used to train American soldiers how to resist coercive interrogations, in the event that they are captured. In late 2001, Mitchell had coauthored a classified paper, “Recognizing and Developing Countermeasures to Al-Qaida Resistance to Interrogation Techniques.” Mitchell had never conducted a real interrogation and so had no sense of what worked in the real world to elicit information from prisoners, but that did not stop him from helping to develop aggressive “Enhanced Interrogation Techniques” to be used on al-Qaeda detainees. Those techniques included confinement in a small box, stress positions, sleep deprivation for days, and waterboarding; one or more of these were later used on a total of twenty-eight detainees in American custody.
In mid-April, around ten days after Soufan had first started interrogating Abu Zubaydah, and over the FBI agent’s vociferous objections, a CIA contractor stepped in to take over the interrogation. The FBI’s standard, noncoercive techniques were jettisoned and Abu Zubaydah was stripped naked, deprived of sleep, subjected to loud noise and wide variations in temperature, and isolated from Soufan and other professional interrogators. The CIA contractor would now appoint Abu Zubaydah’s “God,” who would exercise total control over him. Soufan recalls: “Only one person and one person only from now on would have access to Abu Zubaydah. … The interrogation style was to go in and tell him, ‘Tell me what I need to know.’”
The CIA contractor, a psychologist, had not interrogated anyone before, nor did he know anything about Islamist extremists or the Middle East. Soufan and the other professional interrogators with him watched the new approach unfold with astonishment. Soufan says that at one point Abu Zubaydah was sitting naked on the floor, and the CIA contractor insisted that his new experimental interrogation techniques were working on the prisoner: “He’s like, ‘See! See! He tilted his head to the right: That means it’s working. He’s contemplating, he’s thinking, because he tilted his head to the right—he’s in agreement, he’s going with the program.’ … The contractor gets so excited he had a fucking boner.’” Abu Zubaydah then promptly fell asleep, snoring loudly.
Soufan objected to the CIA that Zubaydah was being subjected to “borderline torture,” and “other people who were on the ground were going on the computers and shooting cables back to Washington” to complain about the new interrogation regime. By now Abu Zubaydah was no longer giving up any significant information.
Eventually, Soufan and the other professional interrogators were allowed to resume their questioning of Zubaydah. It was then that he described an Hispanic al-Qaeda wannabe whose physical description jibed with that of Jose Padilla, an American small-time hood who would later be arrested at Chicago’s O’Hare Airport in May 2002, supposedly planning to detonate a radiological “dirty bomb” in the United States.
Scott Shumate, a psychologist working with the CIA who was present during Abu Zubaydah’s interrogations, was so disgusted by the interrogation regime instituted by the Agency contractor that he flew home. On May 25, almost two months after he had first started interrogating Abu Zubaydah, so too did Ali Soufan, pulled out on the orders of his FBI superiors, who did not want the Bureau’s agents to be involved in coercive interrogations.
Abu Zubaydah was later “waterboarded” eighty-three times by the CIA. This form of simulated drowning is generally considered torture, but none of it produced much in the way of useful information. General Michael Hayden, who served as CIA director in the last two years of the Bush administration, claimed that waterboarding Abu Zubaydah did yield key information that led to the capture of Ramzi Binalshibh, who had helped to oversee the 9/11 plot. But there may be a problem with Hayden’s chronology because water-boarding wasn’t authorized until August 1, 2002, four months after Zubaydah was arrested, and Binalshibh’s name was by then already well-known to the U.S. government and indeed to the world, as he was the subject of a front-page story in the New York Times ten weeks before he was captured, on September 11, 2002.
In the end the multiple waterboardings of Abu Zubaydah provided no specific leads on any plots, although clearly his role as an al-Qaeda logistician did give him insights into the organization and its personnel. Dozens of videotapes of the CIA interrogations of Abu Zubaydah were destroyed in 2005 by a senior CIA official, Jose Rodriguez, who seems to have calculated that if the tapes ever entered the public domain they would have caused the same kind of outrage that greeted the Abu Ghraib prison abuse photographs from Iraq. It is one thing to read about abuses; it is quite another to watch them unfold in front of your eyes.
Following the Supreme Court Hamdan decision requiring the administration to respect the Geneva Co
nvention’s ban on “humiliating and degrading treatment” of prisoners, the CIA prohibited its operatives from waterboarding, a practice that the Agency had ended, in any event, in 2003. And on September 6, 2006, President Bush announced he was transferring 14 “high-value” prisoners—including al-Qaeda leaders like Khalid Sheikh Mohammed (KSM)—held in secret, overseas CIA prisons into Guantánamo. Some of the CIA’s high-value prisoners had been held in jails in Poland and Romania; KSM was imprisoned at a Polish facility north of Warsaw at Stare Kiejkuty.
Officials of the International Committee of the Red Cross wrote a memo describing the treatment of detainees at these CIA prisons in Eastern Europe, which included continuous solitary confinement and incommunicado detention, waterboarding, prolonged stress standing, lengthy nudity, sleep deprivation, exposure to cold temperatures, and the prolonged use of handcuffs and shackles. The Red Cross concluded that, “The ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture.”
A reader might be thinking that while the Bush administration’s approaches to incarceration and interrogation were perhaps unsavory and even unlawful—still, weren’t they necessary because of the large threat posed by al-Qaeda? To help answer that question, consider the case of Abu Jandal, who provided a vast amount of intelligence about al-Qaeda’s inner workings immediately after the attacks on New York and Washington under no duress whatsoever.
A week after 9/11, FBI Special Agent Ali Soufan and Robert McFadden, an investigator from the Naval Criminal Investigative Service, interrogated Abu Jandal, who had served as bin Laden’s chief bodyguard for years and was privy to many of his secrets. Abu Jandal, whose real name is Nasser Ahmad Nasser al-Bahri, had been jailed in a Yemeni prison since 2000. The two American investigators, who both spoke Arabic and had significant experience investigating al-Qaeda, used the “Informed Interrogator” approach on him while plying the diabetic bin Laden confidant with sugar-free cookies. Soufan recalls the cookies were a gesture that “kind of broke the ice.” As a result Abu Jandal disgorged a great deal of information about the terror network. Soufan recalls that he “named dozens and dozens of people” in the organization.
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