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Senate Intelligence Committee Takes Up “the Pentagon Papers of the CIA Torture Program” Behind Closed Doors: Report Remains Under Wraps

Brent Mickum. (Photo: Lance Page / Truthout)

Today, as a Senate panel prepares to vote on a voluminous secret report, a lawyer for the most high-profile resident of Gitmo sheds light on what it may contain.

On a cold day in February 2009, Brent Mickum arrived at the Sensitive Compartmented Information Facility in Washington, DC and went into a room that houses two large safes: One holds materials the government has deemed “secret;” the other contains secrets more secret than that.

The lawyer turned the combination on the top-secret safe and pulled from one of four drawers about a dozen drawings – art that is said to document the art of torture.

Mickum brought his secrets into a room where staff members on the Senate Select Committee on Intelligence were preparing to launch an investigation into the CIA’s torture program. He took his seat at a horseshoe-shaped table and prepared to answer their questions about his notorious client and the meaning of his art.

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Today, nearly four years later, the Senate Intelligence Committee will meet in closed session and vote on a classified report, the product of its investigation into whether so-called “enhanced interrogation techniques” were effective and produced actionable results, and if they went beyond what the Department of Justice had authorized. [UPDATE 12/13/2012: The Intelligence Committee approved the report by a vote of 9-6.]

One Intelligence Committee staff member told Truthout the resulting document could be characterized as “the Pentagon Papers of the CIA torture program.” But the report will remain secret and it’s unclear if a declassified version ever will be released.

The CIA would not comment on the committee’s report or the vote taking place later today. [UPDATE 12/14/2012: CIA Acting Director Michael Morrell sent a memo to agency employees Friday evening, one day after the Senate Intelligence Committee’s voted to approve of the report. Morell said the agency has not yet seen it and has until February 15 to review it and make comments on its findings.]

However, Mickum’s story may shed some light on what a small portion of the report reveals.

The Washington, DC lawyer represents Zayn al-Abidin Muhammad Husayn, better known as Abu Zubaydah – a Guantanamo detainee the US government has claimed for more than a decade to be “one of the highest-ranking members of the al-Qaeda terrorist organization” and “involved in every major terrorist operation carried out by al-Qaeda,” including the 9/11 attacks.

Nonetheless, in an extraordinary court filing in September 2009, the Obama administration’s Justice Department quietly recanted virtually every major claim leveled by the Bush administration against Zubaydah.

The high-value detainee, who has been held at Guantanamo since 2006, plays a starring role in the nearly 6,000-page torture program report, according to several Senate Intelligence Committee staff members, who asked Truthout not to reveal their identities because of the sensitivity surrounding the issues it addresses.

Zubaydah has the dubious distinction of being the first post-9/11 prisoner subjected to the drowning technique known as waterboarding, as well as a dozen or so other extreme methods of torture.

The infamous “torture memo,” drafted in August 2002 by then-Justice Department attorney John Yoo, was created specifically to authorize the CIA to torture Zubaydah, whom CIA contractors and officers had claimed was holding back critical intelligence about pending attack plans. Zubaydah’s interrogation sessions, including several that depicted his waterboarding, were videotaped and later destroyed, sparking a criminal investigation conducted by a special prosecutor that ended without any charges being filed.

Zubaydah, who has been held in a section of Guantanamo reserved for detainees formerly in the custody of the CIA, drew pictures of the torture techniques he says he endured and Mickum said the alleged terrorist is a “pretty good artist.”

Mickum, who has represented Zubaydah since 2008, told Truthout this week that in lieu of the torture tapes, the drawings Zubaydah made – some on smaller pieces of paper – contain the best-known description of the torture techniques CIA interrogators used against Zubaydah.

Although he was unable to describe the drawings due to the classified nature of the materials, Mickum, who holds a top-secret clearance, said the drawings “show oxygen deprivation can happen in different ways.”

Truthout filed what is known as a mandatory declassification review for Zubaydah’s drawings, as well as for poetry and short stories the prisoner wrote last year. But the CIA issued a Glomar response to our request – meaning the agency would not confirm or deny their existence.

If Zubaydah’s drawings and writings do exist, the CIA said, they would be part of the agency’s “operational files,” which means “records and files detailing the actual conduct of [CIA’s] intelligence activities.”

According to Mickum, they not only exist, he presented them to Intelligence Committee staff members on that cold February day. And he told them what they represented.

He noted that some of them were not just of Zubaydah, but of two other prisoners who also apparently were tortured.

Mickum said Zubaydah made a mental note of the stories he was told by other prisoners about their torture and drew a picture of it.

“All of the drawings depict what I would characterize as torture,” Mickum told Truthout, recounting what he had told the Intelligence Committee staffers. “That’s why [Zubaydah] did them. I think he was just trying to create a record. He wanted me to preserve them as a historical record.”

The staff members’ reaction was not what Mickum expected.

“I didn’t get the impression at all that they were shocked by any of this,” he said. “If you were to show this to people, given how good the drawings are, you would expect someone to put a hand to their mouth. That led me to conclude they were aware of this and had probably been briefed on it. I would have thought they would have said, ‘Wow! How can you be sure of the dimensions?’ There was none of that.”

The conversation was driven by Democratic staffers who asked Mickum numerous questions about torture techniques and the difference between “guesthouses” and “safehouses,” When Zubaydah was captured on March 28, 2002 in a raid jointly conducted by Pakistani intelligence and the CIA, he had been hiding out in a “safehouse.” He also operated a number of “guesthouses” in Pakistan, which Mickum said are like hostels.

There were instances where the two-hour presentation became heated. That, he said, was due to the substance of questions posed to Mickum by Republican staffers. Mickum recalls an aide to Sen. Orin Hatch (R-Utah) was asking Mickum questions he believes was an attempt to get him to “incriminate” Zubaydah.

“He wanted me to provide them with evidence against my client,” Mickum said. “The whole point is, he is supposed to be innocent until proven guilty. I let him and the other Republican staffers who asked me similar questions know in no uncertain terms I would not do that. Whatever their [Republican staffers] agenda was, it had nothing to do with listening to what I had to say. They either didn’t believe the content of the drawings and what I was telling them was true, or they had a wholly different agenda and didn’t view that treatment my client endured as bad, even if it was true.”

Before the meeting ended, Mickum said he gave the staffers copies of the drawings and other classified materials. No one on the committee contacted Mickum again.

Weeks later, the panel formally announced that it was undertaking a bipartisan investigation into the CIA’s detention and interrogation program.

“The purpose is to review the program and to shape detention and interrogation policies in the future,” committee chairwoman Sen. Dianne Feinstein (D-California) and Vice Chairman Sen. Christopher “Kit” Bond (R-Missouri) said in a statement.

Apparently, the committee has no intention of using any of the information it has collected – regardless of whether laws were broken – to urge the Justice Department to launch a criminal investigation.

Leon Panetta, who at the time was CIA Director, said at the time that Feinstein and Bond “have assured me that their goal is to draw lessons for future policy decisions, not to punish those who followed guidance from the Department of Justice. That is only fair.”

Still, Feinstein issued a Senate floor statement last December saying the review had concluded “that coercive and abusive treatment of detainees in US custody was far more systematic and widespread than we thought.”

Moreover, she added, “The abuse stemmed not from the isolated acts of a few bad apples, but from fact that the line was blurred between what is permissible and impermissible conduct, putting US personnel in an untenable position with their superiors and the law.”

But Feinstein’s hopes for a bipartisan review of the program suffered a blow in September 2009, when Sen. Bond, who would retire from the Senate the following year, announced that Republicans would drop out of the inquiry.

He made that decision after Attorney General Eric Holder announced that he had expanded the mandate of the special prosecutor who had been investigating whether laws were broken in connection with the torture tapes to include a “review” of detainees who were tortured by CIA officers. That “review” ended earlier this year without any charges being filed against individual CIA officers.

An intelligence committee staffer said despite Republicans’ refusal to participate, a “tremendous amount of resources” went into the torture report the panel is discussing today.

“We looked at millions of pages of correspondence, cables and documents. There’s a lot of new information and it will show the program was more widespread than what the public had been told.”

Brian Weiss, a spokesman for Feinstein, said the committee reviewed 6 million pages of documents. Weiss would not comment on any discussions the committee had with Mickum, or whether information he provided was used in the drafting of the report.

Despite the secrecy that continues to surround the public controversy over torture, and the likelihood that the report may never be released or anyone held accountable for any adverse findings, the fact that it exists at all is significant, said Devon Chaffee, legislative counsel at the American Civil Liberties Union (ACLU).

“The Senate Intelligence Committee investigation serves the important purpose of thoroughly documenting the extent and impact of the abusive CIA interrogation and detention program and will hopefully be a crucial tool in ensuring that the United States never returns to the use of torture and other cruelty,” said Chaffee, who added that the ACLU provided committee staffers with some of the documents and its analysis of those materials related to the treatment of detainees in custody of the US government the organization obtained over the past decade under the Freedom of Information Act (FOIA).

“While the ACLU has uncovered many details about how the CIA torture program was authorized and executed through its [FOIA] litigation, many significant pieces of the puzzle remain shrouded in secrecy,” Chaffee said. “No investigative report can take the place of criminal accountability for perpetrators of torture, or remedy for torture victims. But it continues to be incredibly important that the American public know the full extent of the torture and abuse that was perpetrated against prisoners in US custody and the impact that such abuse had on US international standing and national security. That is why it is important that the Senate investigation be made public with only those necessary redactions to protect legitimate secrets.”

Retired Brig. Gen. David Irvine, a former interrogator, said during a media call Tuesday coordinated by Human Rights First, that the only reason to keep the report classified is to “prevent the American public from learning what was done in their name.”

“You keep material classified to protect sources and methods,” said Irvine, who opposes the use of torture. “Many of these records [the Intelligence Committee reviewed] are ten years old. There is no question who the source of this information is. And the methods used were coercive. It’s not a secret anymore.”

Mickum, however, is disappointed that in the absence of accountability all that will come from the Intelligence Committee’s probe is “clarification for the record.”

He said if the Intelligence Committee’s investigation found that the torture program was in fact far more systematic and widespread, as Feinstein noted, it calls into question the integrity of the special prosecutor’s probe of certain cases involving abusive interrogations of detainees that ended without charges being filed against CIA officers.

“If the CIA went farther than what was approved in the torture memos that would contradict the decision by the special prosecutor not to go after anyone,” Mickum said. “The release of the report, if that happens, could force the government to explain why that decision was made. But I don’t hold out any hope that will ever happen.”

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