A New Installment, and an Outrageous Lie

Today we post the first part of “The Story Unravels,” the epilogue to Chapter 4's “Ponzi Scheme of Torture.” This first section follows Jose Padilla's case as it made its way through the courts; the final part, which we will publish next week, takes a similar look at the Binyam Mohamed and Abu Zubaydah cases.

One of the more depressing of the many extremely depressing aspects of writing this chapter has been to see how the “dirty bomb plot” at the center of this “Ponzi scheme,” a plot that had no life outside the torture chambers, persists in arguments supporting or justifying torture.

I came across an especially pernicious example of this just about an hour ago, when I was reading through one of the documents released in connection with Justice Department's Office of Professional Responsibility's (OPR) Report on whether the authors of the torture memos violated standards of professional ethics. The document is memo-signer and now Federal Judge Jay S. Bybee's first Response to the OPR's draft report, which Bybee's attorneys forwarded to the OPR on May 4, 2009.

Among the flaws the OPR highlighted in the August 1, 2002 John Yoo-authored “Bybee memo” (PDF) was the suggestion that a CIA interrogator accused of torture could mount a “necessity defense.” “A thorough, objective, and candid discussion of the necessity defense in the context of the CIA interrogation program would have included an element-by-element analysis of how the defense would be applied to a government interrogator accused of violating the torture statute,” the OPR noted on page 211, adding in a footnote on the following page:

The Bybee Memo, in Part IV (International Decisions) briefly alluded to the “ticking time bomb” scenario....As noted above, in their OPR interviews, Bybee and Yoo both referred to the ticking time bomb hypothetical as support for their analysis of the necessity defense.

The ticking time bomb scenario is frequently advanced as moral or philosophical justification for interrogation by torture. However, other scholars have argued that the scenario is based on unrealistic assumptions and has little, if any, relevance to intelligence gathering in the real world. Reliance upon the scenario has been criticized because it assumes, among other things: (1) that a specific plot to attack exists; (2) that it will happen within hours or minutes; (3) that it will kill many people; (4) that the person in custody is known with absolute certainty to be a perpetrator of the attack; (5) that he has information that will prevent the attack; (6) that torture will produce immediate, truthful information that will prevent the attack; (7) that no other means will produce the information in time; and (8) that no other action could be taken to avoid the harm.

To our knowledge, none of the information presented to OLC about Abu Zubaydah, KSM, Al-Nashiri, or the other detainees subjected to EITs approached the level of imminence and certainty associated with the “ticking time bomb” scenario. Although the OLC attorneys had good reasons to believe that the detainees possessed valuable intelligence about terrorist operations in general, there is no indication that they had any basis to believe the CIA had specific information about terrorist operations that were underway, or that posed immediate threats.

Moreover, any reliance upon the “ticking time bomb” scenario to satisfy the imminence prong of the necessity defense would be unwarranted in this instance, as the EITs under consideration were not expected or intended to produce immediate results. Rather, the goal of the CIA interrogation program was to condition the detainee gradually in order to break down his resistance to interrogation. (Citations omitted)

It is in responding to this criticism that Bybee trots out the “dirty bomb plot.”

OPR states that the Memo should have discussed a real world situation in which a defendant could prove that he reasonably anticipated that torture would produce information directly responsible for preventing an immediate impending attack. (75)

Indeed, the OLC attorneys working on the 2002 Memo had been briefed on the apprehension of Jose Padilla on May 8, 2002. Padilla was believed to have built and planted a dirty bomb--a radiological weapon which combines radioactive material with conventional explosives--in New York City. It is easy for OPR, seven years removed from the horror of 9/11 to scoff at the notion of a ticking time bomb scenario, but the context in which these memos were written simply cannot be forgotten. (75, fn 46, emphasis added)

It is of course impossible that anyone in the administration believed Padilla had built and planted a dirty bomb in New York : he was arrested at Chicago 's O'Hare airport on arrival from Zurich after spending four years overseas. As we saw in Chapter 4, Ashcroft's first announcement of the arrest did claim that “We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,' in the United States,” but by the next day administration officials were even running away from that, sheepishly acknowledging, as Deputy Secretary of Defense Paul Wolfowitz put it, “I don't think there was actually a plot beyond some fairly loose talk and his coming in here obviously to plan further deeds.”

The OPR is right: using the ticking time bomb scenario to justify torture is factually suspect and legally dubious. That Bybee tries to use the scenario now to justify the flawed conclusions of the memos he signed is depressing, if not surprising. But for him to claim that it was the Padilla case that presented such a scenario is a simple, outrageous lie.

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