Much attention has been focused on the bizarre legal reasoning behind the Bush administration's "torture memos," a series of documents starting in August 2002 that OK'd detainee abuse. The memos have been widely criticized for authorizing illegal acts. But in a House Judiciary Committee hearing on Thursday, former Attorney General John Ashcroft raised the possibility that the CIA started torturing at least one detainee before any of the memos were even written.
If true, that would suggest that the CIA realized that the agency might be breaking the law and sought legal cover after the fact. Attorneys say that, hypothetically, this could make it easier to prosecute those who condoned or conducted the abuse before the torture memos were produced.
Intelligence agents from the United States and Pakistan captured suspected al-Qaida operative Abu Zubaydah on March 28, 2002. According to news accounts and congressional testimony, Zubaydah's interrogation began soon after his capture. His interrogation was reportedly particularly brutal, and he is one of three detainees confirmed to have been waterboarded.
But the first so-called torture memo, sometimes called the Bybee memo, was not produced by the Justice Department until Aug. 1, 2002. It defined torture down, breaking with long-established standards to restrict it to pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
Ashcroft admitted to the committee that he participated in the production of that first memo in August 2002 for Zubaydah’s interrogation. "I do generally recall that I was made aware that a legal opinion relating to the interrogation of al-Qaida detainees was being prepared," Ashcroft said of that memo. "A draft or drafts were provided to my office, that I was briefed on the general contours of the opinion's substantive analysis and on its conclusions and that I approved its issuance."
But during questioning, Rep. Jerrold Nadler, D-N.Y., pointed out that the abuse of Zubaydah had reportedly begun weeks, if not months, earlier. "Did you offer legal approval of interrogation methods used at that time ... prior to August 2002?"
"I have no recollection of doing that at all," Ashcroft responded. He added that he did not remember anyone else at the Justice Department doing so either. He said later in the hearing that Zubaydah's interrogation "was done without the opinion that was issued on the first of August."
Ashcroft's testimony at least raises the possibility that the CIA had started abusing Zubaydah before the agency received any legal cover. This might explain why the Bush administration pushed so hard for the torture memos -- the torture had already begun.