Balkinization  

Saturday, March 08, 2008

The Normalization of Torture

Marty Lederman

Our President today vetoed a bill that -- once again, for the umpteenth time -- would have rendered even more unlawful some or all of the CIA's "enhanced interrogation techniques." Not much new in the President's veto statement -- the CIA techniques are not "torture"; they are not "cruel treatment" prohibited by Common Article 3; and whadda ya know? -- they're even "humane."

The President also raised a constitutional objection to section 326, which would have required the Administration to issue a report to the congressional intelligence committees -- a classified report -- explaining how the Administration has purported to be complying with section 1003 of the Detainee Treatment Act of 2005 (the "McCain Amendment"), which prohibits the use of cruel, inhuman and degrading treatment, and with section 6 of the Military Commissions Act of 2006, which gives the President certain authority to interpret Common Article 3 of the Geneva Conventions (including its prohibitions on torture and cruel treatment). Imagine that -- the Administration actually being compelled to explain to the legislature how it is implementing federal statutory and treaty requirements. Outrageous, right? That must be unconstitutional!

To make matters worse, this week we have a serious legal commentator, Stuart Taylor, publishing a column criticizing the Congress for "lurching" to an "extreme" by trying to require the CIA to use those techniques that have been proven tried and true -- and sufficient -- by the military and the FBI. What's Stuart's main concern? That the bill would have prohibited the CIA from "bluffing to scare a prisoner into thinking that he might be physically abused." That's right -- because the CIA should be permitted to threaten detainees with unlawful physical abuse, the Democratic bill was "lurching" to an "extreme" and the President was right to veto it.

More absurd, even, is Taylor's exoneration of the lawyers in the Bush Administration. Stuart argues that, now that he thinks about it, it really is a hard legal question whether waterboarding is torture or cruel treatment -- and therefore currently unlawful -- after all. Stuart doesn't ever explain in what sense waterboarding might not be "cruel." His attention is devoted to the torture statute. "The 1994 law's extraordinarily narrow definition of 'torture,'" he writes, "is critical to understanding why a reasonable lawyer could declare waterboarding personally 'repugnant,' as did Mukasey during his confirmation hearing, while at the same time believing that if it is short in duration and carefully controlled, it is not necessarily 'torture.'"

Now, I would be the first to complain -- and I have -- about Congress's narrowed statutory definition of torture, which in some respects guts our obligations under the Convention Against Torture. Nonetheless, the law does categorically prohibit the intentional infliction of severe physical suffering on a detainee overseas. And as I've written here several times before, if anything in the law can be said with certainty, it is that waterboarding, a form of drowning, is designed precisely to inflict severe, acute physical suffering.

So how can Stuart Taylor conclude that reasonable minds might disagree? Here's what he writes:
Does waterboarding inflict severe physical pain or suffering? That depends on the inherently elastic meaning of "severe." Waterboarding is clearly more severe than (say) a single face slap. But it is clearly less severe than (say) yanking out a prisoner's fingernails. The fact that the military has long waterboarded its own soldiers in training to teach interrogation-resistance techniques cuts against the idea that it inflicts severe physical suffering. I also suspect that many a lawyer's interpretation of "severe" might turn on how close in time his decision was to a terrorist mass murder that he fears could soon be repeated. Just as gravity bends light, the need to prevent a catastrophe bends judgment on such subjective questions. And it should.
Let's briefly take these "arguments" one at a time, not that they actually warrant any serious consideration.

First: Stuart can think of some techniques that result in more severe physical suffering than waterboarding, such as, supposedly, yanking out fingernails. He might be wrong about the fingernails -- as one person who has endured waterboarding explained: "If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question. It's horrible, terrible, inhuman torture. I can hardly imagine worse. I'd prefer permanent damage and disability to experiencing it again. I'd give up anything, say anything, do anything." But even so, Taylor is of course correct that we can all think of some techniques that would result in more severe suffering than waterboarding. And what, exactly, does that prove? Suffice it to say that "We're not quite as sadistic as the Spanish Inquisition" is not a defense, nor a valid form of statutory construction.

Second, Stuart writes that "the fact that the military has long waterboarded its own soldiers in training to teach interrogation-resistance techniques cuts against the idea that it inflicts severe physical suffering." This is simply a non-sequitur.

Of course waterboarding does, and is specifically intended to, result in severe physical suffering. That's the whole point of it: The suffering is so severe that no detainee can resist it for more than a few seconds. The only way to deny this conclusion is to engage in willful blindness -- to studiously resist actually reading any part of the vast historical literature on water tortures. (This is, alas, not an uncommon problem: As Alice Ristroph explains in a terrific recent piece:
If we actually seek a serious, realistic evaluation of torture, . . . it is not as if we lack empirical information about torture. The unfortunate truth is that torture is a practice with which the human race has extensive historical experience. Admittedly, I have no expertise as a historian. But I can read, and for others with expertise in reading, there are several historical studies of torture available, most undertaken before September 11, 2001, at a time when our interest in the subject was somewhat less selfishly partisan. The studies are rich in detail, and often depressing, but they . . . should be the starting point for discussions of torture today.)
Which brings us to Stuart Taylor's third and final "argument": "Many a lawyer's interpretation of 'severe' might turn on how close in time his decision was to a terrorist mass murder that he fears could soon be repeated. Just as gravity bends light, the need to prevent a catastrophe bends judgment on such subjective questions."

This is very revealing, and I think it is really what's underlying Taylor's (and Mukasey's, and Bradbury's, and Bush's) insistence that the statutory question is "difficult": Basically, that we should not take the statutory restriction seriously at all if our motives are pure enough. If the interrogator, and his apologist lawyers and doctors and officials, are genuinely fearful of terrorist mass murder (and who wouldn't be?), and if they sincerely conclude (albeit without the aid of any actual empirical evidence) that torture is necessary to prevent such "catastrophe," well, then, the physical suffering of their victims just magically becomes less "severe," doesn't it?

Bent judgment, indeed.

Comments:

To make matters worse, now we have Stuart Taylor, this week publishing a column criticizing the Congress for "lurching" to an "extreme" by trying to require the CIA to use those techniques that have been proven tried and true -- and sufficient -- by the military and the FBI.

Proven and sufficient?

The FBI tried for weeks and failed to get any useful intelligence out of Abu Zabudayah, the first of three al Qaeda leaders whom the CIA waterboarded and obtained the information to capture KSM.

If one has enough time, the Army Interrogation Manual is adequate for the vast majority of interrogations. However, no one claims that these techniques are always effective.

The issue before us is what to do with a high value target who is not providing timely actionable intelligence under the Army Interrogation Manual techniques.

[Stuart's] attention is devoted to the torture statute. "The 1994 law's extraordinarily narrow definition of 'torture,'" he writes, "is critical to understanding why a reasonable lawyer could declare waterboarding personally 'repugnant,' as did Mukasey during his confirmation hearing, while at the same time believing that if it is short in duration and carefully controlled, it is not necessarily 'torture.'"

Taylor's argument is more than a little familiar. I guess he is yet another "unethical" attorney like myself, Mukasey and all the lawyers at DOJ. Because we share basically the same analysis, I will offer a defense of this defense.

So how can Stuart Taylor conclude that reasonable minds might disagree? Here's his "reasoning":

Does waterboarding inflict severe physical pain or suffering? That depends on the inherently elastic meaning of "severe." Waterboarding is clearly more severe than (say) a single face slap. But it is clearly less severe than (say) yanking out a prisoner's fingernails...


Actually, Taylor is being generous calling the term "severe pain" to be elastic. Any medical professional will tell you that pain cannot be objectively measured. Indeed, DOJ made this observation in a footnote of their memorandum of law. While the subjective philosophical arguments apparently will continue ad infinitum, the legal argument really ends here.

First: Stuart can think of some techniques that result in more severe physical suffering than waterboarding, such as, supposedly, yanking out fingernails. He might be wrong about the fingernails -- as one person who has endured waterboarding explained: "If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question. It's horrible, terrible, inhuman torture.

I see we are offering the anonymous internet poster as an expert witness again. As soon as "scylla" has his fingers smashed one at a time with a sledgehammer to compare the sensation to his alleged waterboarding, I might take him seriously.

You need a better expert witness. It would take me about five minutes to get him excluded as a witness from your prosecution.

Taylor is of course correct that we can all think of some techniques that would result in more severe suffering than waterboarding. And what, exactly, does that prove? Suffice it to say that "We're not quite as sadistic as the Spanish Inquisition" is not a defense, nor a valid form of statutory construction.

Taylor would be better advised to simply observe that the CIA's waterboarding technique (water run over cellophane over the nose and mouth) causes no pain at all.

Second, Stuart writes that "the fact that the military has long waterboarded its own soldiers in training to teach interrogation-resistance techniques cuts against the idea that it inflicts severe physical suffering." This is simply a non-sequitur.

Of course waterboarding does, and is specifically intended to, result in severe physical suffering. That's the whole point of it: The suffering is so severe that no detainee can resist it for more than a few seconds.


Speaking of non sequiturs, your argument erroneously assumes that an interrogator must inflict severe physical suffering to obtain an answer within a moment or two.

In fact, physical suffering is merely the state of undergoing physical pain. Because the CIA waterboarding technique does not involve physical pain, it cannot cause physical suffering.

Taylor's argument comparing military life with

The SERE training Nance inflicted on this SEALs involving forcing water into their stomachs and lungs does inflict actual pain. In comparison, the CIA waterboarding technique is a walk in the park compared to what our SEALs undergo.

Additionally, as I have noted before, your average infantry grunt stands for long periods of time, sits in uncomfortable contortions, eats at irregular intervals, undergoes constant changes of temperature and endures sleep deprivation as a matter of everyday life. It is a complete mystery to this ex grunt why I ought to think what CIA does to terrorists is somehow criminal.

Perhaps the only way to resist this conclusion is to engage in willful blindness -- to studiously resist actually reading any part of the vast historical literature on water tortures.

You admitted above that the CIA waterboarding techinique, which does not cause physical pain, is not the same as those historical tortures used by the likes of the Spanish Inquisition, which are designed to inflict intense physical pain and injury. Thus, this literature is irrelevant.

Which brings us to Stuart Taylor's third and final "argument": "Many a lawyer's interpretation of 'severe' might turn on how close in time his decision was to a terrorist mass murder that he fears could soon be repeated. Just as gravity bends light, the need to prevent a catastrophe bends judgment on such subjective questions."

Taylor would have been better advised simply to point out that the term "severe pain" is completely and utterly subjective and thus too vague to enforce in a criminal statute.

Instead, Taylor is wandering off into the land of subjective philosophical assertions which are the currency of those who claim that the CIA coercive interrogation techniques are "obviously" torture in violation of the law.
 

I recommend shutting off comments sooner rather than later, so as to prevent those who feel compelled to reply to other visitors from wasting their time.
 

The preceding comments reminded me of an old 78 recording of "Celery Stalks at Midnight" by Will Bradley's Orchestra featuring Ray McKinely, circa 1940, that is in my record collection. It's available in its entirety on YouTube.

Now who was it that reminded me? Every time his name surfaces I'll be reminded again and again. Fortunately the tune swings and I just might keep a Bombay Bloody Mary handy for company.
 

Please tell me that this Bart fella is a foreigner! How could any American justify torture under any circumstances and still claim to be a citizen of this country?!?!?
 

Marty,

A very good critique of Mr Taylor. I'd just like to add that it is possible to find arguments to justify doing what you want to do. The problem is coming up with a reasonable and rational argument. I agree with you that Mr. Tayor's arguments are not very reasonable and hardly rational.I would like to state for the record that I appose the use of any 'torture' (by any name you care to give it) on three grounds.
First it is both immoral, unethical, and fundamentally wrong. I feel this way because the use of 'torture' violates a fundamental principle of my religion. I shan't say any more as this is sufficient unto itself.
Secondly, I hold to the position that 'torture' doesn't work when you are attempting to get to the truth. Given the poor record of the Bush II administration on telling the true I reserve judgment on any "proof" of the successful use of 'torture' in preventing any terrorist attacks until a full report is made public.
Finally, the use of 'torture' by any American for any reason takes us back to the bad old days of the 19th Cent. when we rationalized away the holding of slaves and the practice of genocide. This country has paid too high a price in blood and honor for those 'bad old days' to go back now. The US is more than just land and people, it is a set of ideals and one of those ideals is a very high moral standard of behavior.
Once again, very good critique. Keep up the good work.
 

You're too polite, Marty. The real word for Taylor's judgment is "warped."

It would be one thing if evidence contradicting him were not in, but it is. There's never been a ticking time bomb, and no administration official has issued a credible report to the contrary. The scenario arose in French literature to ease qualms about the war against Algeria. Alan Dershowitz's parade example ran for (if memory serves) 67 days. What is most impressive about it is the bomb's implied battery life. A skilled interrogator would expect to learn more, and more reliably, within the true time frame.

Even in the fantastic world of "24" in which the scenario exists it takes little imagination – though pity the scriptwriter who comes up with the idea – for a detainee to give false information sending bomb squads on a series of wild goose chases.

Failing that, he'd likely take a licking while the bomb kept ticking. Better to bend our hysteria toward the image of a ticking Timex and break out in hysterical laughter.
 

Taylor started on this role early ... he early on insisted the true problem in '00 was how Bush was corruptly harmed by the vote count. Non seq. or not, it seems par for course.

Anyway, this ends justify the means stuff doesn't cut it for me. A sound response is that (1) practicably, the means doesn't really work or (2) overall, pragmatically it is a bad idea, including strategically. You can think the targets are scum btw and still see the point of the latter argument.

But, this only goes so far for me. Put aside the claim that only a handful were actually waterboarded, leading one to wonder why soooo much apparently is at stake here.

No, the bottom line is some things shouldn't be authorized by law. Heck, this doesn't even mean you never do them. (Though we shouldn't). But, authorization, legitimization is much worse. See also, Justice Jackson's dissent in Koresmatsu.

'Inhumane' means something. It means we are not acting like humans, but like animals. The fact acting like animals might result in some sort of gain (and simply put, it is limited at best in the real world, making it a very risky proposition) is not a justification. It still is acting like animals, not like the humanity we are supposed to be.

To be 'safe' we have to act like animals. No thanks. Safety to be an animal, though this is a dis to most animals, is not any sort of safety I want part of. So that line doesn't cut it.
 

With all due deference to Joe, I don’t (does anyone?) know of any report describing intentional or prolonged cruelty in animal behavior. There have been recent reports of empathetic and even compassionate behavior— taken as evidence for the action of ‘mirror neurons’, and accompanying reports of an apparent sense of justice in which monkeys will forgo food if another is refused it. But nothing resembling torture.
 

Mark Twain's "Letters from the Earth" published posthumously includes a comparison of humans with the so called lower animals when it comes to cruelty, war, revenge, etc.
 

In answer to felix culpa, scoiobiology holds that aggression comes in several varieties and that same-species battles is produced when animals are vying for the same resource, usually mates. But such competition between animals is usually non-fatal.
One of the problems with humans is that animals normally have some weapon like claws or really powerful teeth, so animals develop instincts to keep their competition non-fatal. Humans don't have any fatal equipage like the X-Man Wolverine's claws, so we've never developed the "non-killer instinct." We've got the territorial instinct from our competition, but not the restraining instinct of having fatal appendages.
 

Actually, Taylor is being generous calling the term "severe pain" to be elastic. Any medical professional will tell you that pain cannot be objectively measured. Indeed, DOJ made this observation in a footnote of their memorandum of law.

Taylor would have been better advised simply to point out that the term "severe pain" is completely and utterly subjective and thus too vague to enforce in a criminal statute.


Yes, you keep coming back to this point. "Severe pain" is too subjective to have any legal meaning since everyone's pain tolerance is different. Yet you have no difficulty concluding that the sexual abuse that took place at Abu Graib violated GC3, Article 3(1)(c) against humiliating and degrading treatment.

Surely "humiliating and degrading" is even more subjective than "severe pain." After all, I trust everyone will agree on what is or is not painful; the only subjective element is "severity." But how can anyone foresee what any one person will or will not find "humiliating and degrading"?
 

I sorta think some non-human animals ... I did qualify my remark ... do torture, but I don't know enough of the subject to say for sure.

So I appreciate the follow-up comments on that point.
 

Joe,
Take a look at Mark Twain's "The Damned Human Race" at

http://www.skeptically.org/literary/id9.html

To my knowledge the non-human animal kingdom (empire?) does not have a
"National Security Strategy."
 

If only our administration were run by Star Wars geeks, we would not be having this discussion.

When Gov. Tarkin threatens to blow up Leia's entire planet, what's she tell him? "Dantooine ... they're on Dantooine." A lie, of course. Knowing it will take him time to check it out.

Any terrorist who knows there's a "ticking bomb" can do the same thing; he just has to pick something that will take a while to check out ... long enough for the bomb to go off.

But of course, torture is not about hearing the truth; it's about hearing what the torturer wants to hear. Hence its use in the Inquisition, in the witch-craze, etc.

When Frederick the Great forbade torture by his courts, they had a fit. How else, they asked, are we to convict anyone? The notion of investigating a case and discovering the truth was too far-out for them.

Doubtless some spiritual ancestor of Mr. DePalma was there to explain why it would never work, and why the king was endangering the lives of Prussians. Such apologists are always to be found.

In Prussia, they were opposed to the government; in America, they are apologists *for* the government.
 

Nothing is normalized unless we permit it to be normalized.
 

"Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. U.S. law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory."

from the U.S. Dept of State Initial Report to UNCAT, Oct 15, 1999.

http://www.state.gov/www/global/human_rights/torture_intro.html

Please note the provisos on exigent circumstances and by passing the judiciary.
 

Prof. Lederman:

This is very revealing, and I think it is really what's underlying Taylor's (and Mukasey's, and Bradbury's, and Bush's) insistence that the statutory question is "difficult": Basically, that we should not take the statutory restriction seriously at all if our motives are pure enough. If the interrogator, and his apologist lawyers and doctors and officials, are genuinely fearful of terrorist mass murder (and who wouldn't be?), and if they sincerely conclude (albeit without the aid of any actual empirical evidence) that torture is necessary to prevent such "catastrophe," well, then, the physical suffering of their victims just magically becomes less "severe," doesn't it?

Pardon me for pointing it out once again, but the question of whether you should do something is a different question from whether it should be legal (particularly since the determination of whether something is legal seldom if ever is conditioned on the "necessity" of doing it).

Not to mention, the RWA types that are all gung-ho for torture to save a "million" potential lives are not in favour of hacking a person to pieces so we can harvest their organs and assuredly save ten lives or so. The "moral calculus" there clearly is in favour of the extirpation of the various organs to save a dozen lives, even at the price of one life. Why not?

Cheers,
 

The FBI tried for weeks and failed to get any useful intelligence out of Abu Zabudayah, the first of three al Qaeda leaders whom the CIA waterboarded and obtained the information to capture KSM.

"Bart", what's your price?:

"A professor walks up to a lady at a party and asks her if she'd sleep with him for a million dollars. She says, 'Sure! Your place or mine?' He says, 'Would you sleep with me for $100?' She gets all huffy and says, 'What do you think I am, some kind of whore?' He replies, 'We've already determined that. I'm just trying to find out the price....'"

Should we torture a kidnapper to find out where he's hidden a child? If not, why not?

And FWIW, your assumptions above are showing: 1). That the information was necessary to the capture of KSM and in fact led to it, and 2). That there was no other way of getting it.

Regardless, capturing KSM is hardly the same as foiling a Terra-ist attack that would have killed millions. While it's nice to capture terrorists and bring them to justice (if a MCA 'show trial' can be considered that), that's not the same as preventing the TTB....

Cheers,
 

"Bart" DePalma:

Any medical professional will tell you that pain cannot be objectively measured.

OK, I'll bite. Cite one. Peer-reviewed papers would be a plus.

Cheers,
 


Additionally, as I have noted before, your average infantry grunt stands for long periods of time, sits in uncomfortable contortions, eats at irregular intervals, undergoes constant changes of temperature and endures sleep deprivation as a matter of everyday life. It is a complete mystery to this ex grunt why I ought to think what CIA does to terrorists is somehow criminal.


"Objection, your Honour, asked and answered."

Cheers,
 

felix culpa:

With all due deference to Joe, I don’t (does anyone?) know of any report describing intentional or prolonged cruelty in animal behavior.

Interesting nom de plume. Have you ever watched a cat "playing" with a mouse or bird or such? Now I'm not going to go so far as to call that "intentional cruelty", but it's hardly "humane".

Cheers,
 

Dear Mr. DePalma,
If Kalid Sheik Mohammed were subjected to very
harsh interrogation, could he be induced to confess to
an act of which he was not actually guilty?
FarrisW
 

This comment has been removed by the author.
 

farris w:

You touched upon a fundamental distinction here.

Coercive interrogation can result in false statements.

However, CIA was not seeking confessions with which to prosecute KSM nor is the military commission using them to prosecute KSM

Instead, CIA sought and received actionable intelligence on the identity. locations and plans of the al Qaeda cells KSM was supervising and rolled them up. If KSM gave false information about those cells, it would have been easy enough to check his information on the scene or with other captured al Qaeda.

As an aside, the problem with false confessions in the prosecution of KSM did not arise as a result to coercive interrogation, but rather KSM taking credit for murders which he most likely did not commit like the beheading of Danny Pearl.
 

However, CIA was not seeking confessions with which to prosecute KSM nor is the military commission using them to prosecute KSM

Says the torturers?

And once we started torturing this person, it becomes impossible to use anything he says in court.


Instead, CIA sought and received actionable intelligence on the identity. locations and plans of the al Qaeda cells KSM was supervising and rolled them up.


Of which you have provided exactly ZERO evidence.


If KSM gave false information about those cells, it would have been easy enough to check his information on the scene or with other captured al Qaeda.


And do what? At that point the prisoner has already got what they wanted, a rest from the torture.

Heck, I think you were probably a key player in the 9/11 attack. Do you think I could waterboard you into providing details of your involvement?
 

Baghdad, do you think it was ok for the Vietnamese to torture captured US pilots? Do you think we would have prosecuted them if we got our hands on them?

After all, they were just looking for actionable intelligence...
 

bb:

And once we started torturing this person, it becomes impossible to use anything he says in court.

Even if KSM had constitutional rights such as those discussed in the Miranda warning, under the Elstad rule, law enforcement can remedy a previous interrogation violation with a later proper interrogation, even if the questions in the later interrogation are derived from information provided in the prior improper interrogation.

Under this reasoning, the military had the FBI re-interview KSM and the other five terrorists to obtain the statements which will be used at trial.
 

Under this reasoning, the military had the FBI re-interview KSM and the other five terrorists to obtain the statements which will be used at trial.

# posted by Bart DePalma : 11:32 AM


Only if you can find a talking marsupial to serve as the judge for this travesty.

Once you start torturing someone, there is no way you can rely on anything they say. They will just say what they think you want to hear.

That is why I'm completely confident I could waterboard you into admitting to being a key player in the 9/11 attack.
 

Dear Mr. DePalma,

"it would have been easy enough to check his information on the
scene or with other captured al Qaeda."
We already have the information from another guy but we still have to
torture somebody?
"KSM taking credit for murders he most likely did not commit"
If I understand you correctly, you are saying that we have to torture
someone so he will 'take credit' ???
FarrisW
 

Farris W:

You have to understand. It's not the information (or quality or usefulness of such) that's important, it's the torture.

And when we do torture, you can be sure that the people that take such pride in it will reveal a treasure trove of "plots thwarted" and "lives saved", all without substantiation. Because such claims are so inherently good that they need no backing in fact....

I hope you understand....

Cheers,
 

Bart depalma said The FBI tried for weeks and failed to get any useful intelligence out of Abu Zabudayah, the first of three al Qaeda leaders whom the CIA waterboarded and obtained the information to capture KSM.

The best reporting on the interrogation of Zabudayah, that of Katherine Eban in Vanity Fair online ["Rorschach and Awe"] concludes exactly the opposite. Eban reports that all the information on the 9-11 planning was derived by the FBI before the CIA torturers got there: http://www.vanityfair.com/politics/features/2007/07/torture200707?printable=true¤tPage=all
 

Bart DePalma's claim "The FBI tried for weeks and failed to get any useful intelligence out of Abu Zabudayah, the first of three al Qaeda leaders whom the CIA waterboarded and obtained the information to capture KSM." is vigorously disputed by Daniel Coleman a retired former FBI employee who was involved. Coleman claimed that the FBI got basically all the information Abu Zubaida had and that the additional "information" obtained by the CIA was false http://tinyurl.com/235r7y .

As to the claim that the CIAs interrogation of Zubaydah was necessary for the capture of KSM, I am unaware of anyone who has first hand knowledge of the facts who makes that claim. Rather the assertion (whihc iI recall) is that Zubaydah confirmed that KSM was using a suspected alias. I do not recall any assertion that he said this only after being waterboarded.

Click my link. You will find that the CIA claimed gains from interrogating Abu Abu Zubaydah are very generic and clearly consistent with the interpretation that not quite exactly everything which he told them and did not tell the FBI was a lie.

I note that Bart DePalma provides no evidence for his claim of fact. If there is an official source for the claim (that is not some blog somewhere but the quote of someone who was there even someone who demands anonymity) I would like to know about it.
 

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