500 Days (97 page)

279
,
284
: Some details of the confrontation between Soufan, Mitchell, and the CIA interrogators from the FBI/OIG Report; the Soufan Senate testimony; Isikoff, April 25, 2009. Also see “Amended Petition for Relief Under the Detainee Treatment Act of 2005, and, in the Alternative, for Writ of Habeas Corpus,”
Zayn al-Abidin Muhammad Husayn v. Robert M. Gates
, filed in Federal District Court for the District of Columbia, case no. 07-1520.

280
: The threat against Zubaydah’s mother was disclosed in Department of Justice Office of Professional Responsibility Report, “Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists,” July 29, 2009 (
the OLC Report
).

280
–
281
: The timing of the initial days of the CIA interrogation program is particularly difficult to specify, primarily because so many of the records contradict each other.
   A narrative of the events released on April 22, 2009, by Senator John D. Rockefeller IV (
Rockefeller narrative
) states that the CIA proposed the use of waterboarding at a meeting in mid-May 2002. The same document states that the CIA began discussions about the CIA interrogation plan in April. According to the FBI’S OIG report and Ali Soufan’s congressional testimony, the agent witnessed the preparation for the use of cramped confinement on Zubaydah. Soon afterward, in late May, he left the prison where Zubaydah was held.
   However, according to the July 29, 2009, report by the Office of Professional Responsibility for the Justice Department involving the Office of Legal Counsel’s memo regarding aggressive interrogation, other records suggest that the first contact between the CIA and the DOJ was April 11, 2002, and that waterboarding was proposed at that point.
   These, then, are the contradictions: CIA records says that the waterboarding issue was raised in mid-May; DOJ e-mails indicate it was raised in mid-April; the DOJ records also show that the oral approval for the techniques was not provided until July; however, the tactics were being used by CIA officers in mid-May, and one of the interrogators told Soufan they had been approved by Gonzales. Recollections of those involved are also contradictory.
   I have placed events in the order that records seem to suggest they occurred, but I am not dating any of them. All of them occurred within a five-week period, however.
   
Some details of the application of the tactics from an undated, classified CIA document labeled “Chronology: Counterterrorism Detention and Interrogation Activities.” Also see undated file folder, National Security Council Information, containing the undated memo “Proposed Enhanced Interrogation Techniques.”

282
–
283
: Some information about the meeting in the Situation Room from a September 12, 2008, document headed “Responses of Condoleezza Rice,” submitted to the Senate Armed Services Committee.

284
–
285
: Some details of the use of boxes for interrogation—and the decision to abandon them—from the CIA/OIG Report; Steven G. Bradbury, “Memorandum for John Rizzo, Acting General Counsel for the Central Intelligence Agency; Bradbury memo for Rizzo, “Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques That May Be Used in the Interrogation of High Value al Qaeda Detainees,” May 30, 2005.

285
–
291
,
293
–
294
: Some details of the detention, interrogation, and arrest of Padilla from FBI 302 of the May 8, 2002, interview of José Padilla for case no. 265A-NY-259391, by Special Agents Russell Fincher and Craig Donnachie; the July 11, 2007, testimony of Fincher in
United States v. Hassoun et al.,
04-60001-CR-Cooke, in the Federal District Court for the Southern District of Florida; “Report and Recommendation” of Magistrate Judge Stephen T. Brown, dated September 5, 2006; “Jose Padilla’s Motion to Suppress Physical Evidence and Issue Writs Ad Testificandum,” filed in the same case in May, 2006; Complaint,
Jose Padilla v. John Yoo,
CV-08-0035, filed January 4, 2008, in Federal District Court for the Northern District of California; and Donna R. Newman, “The Jose Padilla Story,”
New York Law Review,
48:39 (2003). Also see James Risen and Philip Shenon, “U.S. Says It Halted Qaeda Plot to Use Radioactive Bomb,”
New York Times,
June 11, 2002; Transcript, State Department Regular News Briefing, June 11, 2002; “Remarks of Alberto R. Gonzales, Counsel to the President,” American Bar Association, February 24, 2004; and “Declaration of Michael H. Mobbs, Special Advisor to the Under Secretary of Defense for Policy,” August 27, 2002.

292
: Description of the courthouse from personal observation.

293
: Some details of the video teleconference from the FBI/OIG Report and the Armed Services Report.

299
: Details of the hearings before Magistrate Miller and his rulings from Tim McGlone, “U.S. Must Explain Why Man Is Being Held in Brig,”
Virginian-Pilot,
May 15, 2002; and docket sheet, United States District Court for the Eastern District of Virginia (Norfolk) for civil case no. 2:02-cv-00439,
Hamdi et al. v. Rumsfeld et al.

299
–
300
: Some details of the analysis, preparation, and writing of the OLC memos on the CIA interrogation techniques from the OLC Report; the Rockefeller narrative; Jay S. Bybee, “Memorandum for John Rizzo, Acting General Counsel for the Central Intelligence Agency: Interrogation of al Qaeda Operative,” August 1, 2002; Steven G. Bradbury, “Memorandum for John Rizzo, Acting General Counsel for the Central Intelligence Agency: Re: Application of 18 U.S.C. §§2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees,” May 10, 2005; an undated document in the White House Counsel’s Office headed “Summary of Advice on Interrogations: Advice to the Counsel for the President”; undated file folder, National Security Council Information, containing the undated memo “Proposed Enhanced Interrogation Techniques”; April 28, 2003, document with a fax cover sheet, but which was not sent by fax, from Yoo to Scott W. Muller, Office of the General Counsel with the CIA, “Legal Principles Applicable to CIA Detention and Interrogation of Captured Al Qa’ida Personnel.” Also see Captain Nikiforos
Mathews, “Beyond Interrogations: An Analysis of the Protections under the Military Commissions Act of 2006 of Technical Classified Sources, Methods and Activities Employed in the Global War on Terror,”
Military Law Review
192 (Summer, 2007).

300
: Jennifer Koester’s name was first disclosed in a footnote to the OLC Report.

300
–
301
: The quotes from the government’s Hamdi filing about the training of al-Qaeda members from the original document, “Respondents’ Objections to Magistrate Judge’s May 20, 2002 Order Regarding Access,” filed with United States District Court for the Eastern District of Virginia (Norfolk) in the original docket for the case
Hamdi et al. v. Rumsfeld et al.
, civil case no. 2:02-cv-348. Dunham quote from Matthew Roy, “Judge Blocks Access to Detainee,”
Virginian-Pilot,
May 25, 2002. Information about the Manchester Manual from the original document.

301
–
302
: Some details of the hearing before Doumar from Bill Geroux, “Judge: Allow Meeting, Fundamental Right, He Says,”
Richmond Times-Dispatch,
May 30, 2002; and Sonja Barisic, “Judge Says American-Born Prisoner from Afghanistan Can Meet with Attorney,” Associated Press, May 29, 2002.

304
–
305
: Some of the details about the administration’s distress over the Lindh and Moussaoui cases from Jess Bravin, “More Terror Suspects May Sit in Limbo,”
Wall Street Journal,
August 8, 2002. Also see Jane Mayer, “Lost in the Jihad,”
New Yorker,
March 10, 2003; and Karen Breslau, “Why Did John Walker Lindh Make a Deal?”
Newsweek,
July 16, 2002.

305
: Some details of the preparation for the recommendation package on Padilla from a February 24, 2004, speech of Alberto Gonzales before the American Bar Association Standing Committee on Law and National Security.

305
–
306
: Some details about the movement of Padilla and the failure to notify Newman from Newman, “The Jose Padilla Story,”
New York Law Review
48:39 (2003).

306
: The fact that the White House originally assigned Wolfowitz, Thompson, and Mueller to announce the Padilla case was first reported by John King, “DOJ Announcement of Padilla Arrest Criticized,” CNNPolitics, June 12, 2002.

306
: Details of Ashcroft’s preparation for the Padilla announcement from the original feed to MSNBC. Also see Laura Sullivan, “Ashcroft’s Faith, Persona Inspire Split Sentiments,”
Baltimore Sun,
July 8, 2002.

307
: Dialogue from Ashcroft’s press conference from an official transcript.

307
: Some details of the chaos surrounding Ashcroft’s statement from Judy Keen and Kevin Johnson, “Dramatic Ashcroft Reads Lines Not in Script,”
USA Today,
June 13, 2002; “The Padilla Announcement Blame Game,” ABC News, June 13, 2002; Amanda Ripley, “The Case of the Dirty Bomber,”
Time,
June 16, 2002; John King, “DOJ Announcement of Padilla Arrest Criticized,” CNNPolitics, June 12, 2002; Dick Meyer, “John Ashcroft: Minister of Fear,” CBSNews.com, June 12, 2002; and Sullivan, “Ashcroft’s Faith, Persona Inspire Split Sentiments.”

307
,
308
: Reaction of the stock market to Ashcroft’s speech, and then the Justice Department press conference, from trading data of that day collected by Bloomberg L.P.

308
: Some details of the Wolfowitz-Thompson-Mueller press conference from a transcript of the event.

308
–
309
: Some details of Fouda’s last weeks before broadcast from Fouda and Fielding,
Masterminds of Terror.
Also see Mayer,
The Dark Side.

309
–
310
: Some details of the government’s argument in the Hamdi appeal from
Brief for Respondents-Appelants, Hamdi et al. v. Rumsfeld et al.,
no. 02-6895, filed with the United States Court of Appeals for the Fourth Circuit, June 2002; and Jennifer Elsea, “Detention of American Citizens as Enemy Combatants,”
CRS Report for Congress,
as updated, March 31, 2005.

312
: Details of the Ralpho case from the ruling handed down by the Federal District Court for the District of Columbia in
Ralpho v. Bell,
569 F.2d 607 (D.C.Cir.1977).

314
–
315
:
Details of the Bush Middle East speech from “Remarks on the Middle East: June 24, 2002,”
Public Papers of the Presidents: George W. Bush, 2002,
Vol. 1, United States Government Printing Office, 2004.

316
–
317
: Quotes of the arguments before the Fourth Circuit from an audio recording of the hearing. Certain other details from Michael Buettner, “Court Hears Arguments over America-Born Prisoner’s Detention,” Associated Press, June 25, 2002.

317
–
318
: Some details of the officer’s conversation with Hamdi from a June 27, 2002, e-mail from the naval brig, subject line “Re: Care of USCIT Detainee.”

318
–
319
: Details of the hearing before Judge Kollar-Kotelly from an official transcript.

319
–
320
: The quote defining an emergency medical condition from
Emergency Medical Treatment and Labor Act,
Title 42, Chapter 7, Subchapter XVIII, Part E, Section 1395dd. The use of such a law for the interrogation analysis from the final draft of the OLC memo from Jay S. Bybee, “Memorandum for John Rizzo, Acting General Counsel for the Central Intelligence Agency: Interrogation of al Qaeda Operative,” August 1, 2002.

320
: The decision of the OLC to revise the wording of the health care statutes in the memos on the CIA interrogation techniques from the OLC Report. Yoo acknowledged the variation in language in his interview with the OLC when he stated: “I don’t think that was an effort to try to change it. I think that was just an effort to sort of, you know, sort of paraphrase what the statutory language was.”

320
–
321
: Some details about the specific intent analysis from a July 13, 2002, faxed letter from Yoo to Rizzo, which contains no subject line; and the final draft of the OLC memo from Bybee, “Memorandum for John Rizzo.” Details of the medical supervision requirements from “Draft OMS Guidelines on Medical and Psychological Support to Detainee Interrogations,” a CIA document dated September 4, 2003 (
CIA Medical Guidelines
). Also see an undated document in CIA files, “Legal Principles Applicable to CIA Detention and Interrogation of Captured Al Qa’ida Personnel”; and an undated document in the White House Counsel’s Office headed “Summary of Advice on Interrogations: Advice to the Counsel for the President.”

321
: Details of the officer’s e-mail about Hamdi from the original document.

321
–
322
: Details of the Ministry of Defense–Pentagon meetings and the written advice given by Jack Straw from Jack Straw, Memo to the Prime Minister, “Iraq: Contingency Planning, PM/02/042,” July 8, 2002. Also see the January 21, 2011, testimony of Tony Blair before the Chilcot Inquiry.

322
: Information about Zubaydah’s answers on July 10 from a CIA intelligence report of that date that was read to the author; I am not certain if I was read the entire document. Also see a July 13, 2002, letter from Yoo to Rizzo that contains no subject line.

322
–
323
: Details of the appeals court ruling from a copy of the decision.