“If you accepted an assurance from any of the Arab tyrannies who are our allies that they weren’t going to torture someone, I have got a bridge for you to buy...” Scheuer said in response to a question from a member of Congress.
According to intelligence and legal sources, the March 13, 2002 memo authorizing renditions was originally written with one person in mind: alleged al-Qaeda operative Abu Zubaydah.
Shortly before the March 13, 2002 rendition memo was drafted, U.S. intelligence and Pakistani authorities had coordinated intelligence activities after receiving numerous reports that Zubaydah, an alleged organizer of the failed plot to blow up Los Angeles International Airport in 1999, was hiding out in a Pakistan safe-house, according to previously published news reports and books.
Zubaydah’s “journey through the U.S. government's secret prison system began on March 28, 2002, when U.S. and Pakistani authorities conducted a series of night raids at 14 suspected terrorist safe houses aimed at capturing him,” according to a Dec. 17, 2002 report published in the Washington Post.
“The CIA designed the operation with Pakistan's intelligence service and special forces police, and the FBI had agents at each location to take custody of any physical evidence, officials said," The Post reported.
“Documents, cellphones and computers were seized at multiple sites. After a gunfight in a second-floor apartment in Faisalabad, Abu Zubaida was shot three times while attempting to leap from the roof of one apartment to another. Still unidentified, he was placed in the back of a pickup truck and taken to a local hospital. An FBI agent in the truck was the first to suggest he might be” Abu Zubaydah.
When Zubaydah’s “identity was confirmed, the CIA station chief ordered him to be watched around the clock while U.S. officials made plans for intensive questioning at a secret site elsewhere, several officials said,” the Post reported.
It was around this time that Haynes, the Defense Department counsel, asked Bybee to prepare the memo sanctioning extraordinary renditions to countries that engage in torture, legal sources said.
Jameel Jaffer, director of the American Civil Liberties Union’s National Security Project, said in an interview “it’s intriguing that the March 13, 2002 memo was written only days before Zubaydah’s transfer.”
Additionally, on the day Zubaydah was captured, March 28, 2002, John Yoo prepared a still secret legal memo for William Taft at the State Department that is believed to contain information about Zubaydah’s transfer to Thailand and the fact that his rendition was considered legal by OLC. The reason this memo was prepared, according to lawyers who used to work directly with Taft who I spoke with, is that former Secretary of State Colin Powell vehemently objected to the rendition program and the suspension of Geneva Conventions for prisoners captured in the “war on terror.” Jaffer, whose organization has been largely responsible for prying loose the secret OLC documents and is responsible for uncovering the existence of the March 28, 2002 memo, said, Yoo’s memo to the State Department “suggests there was some consultation” about Zubaydah’s rendition.
In his book, "War By Other Means," Yoo wrote that beginning as early as December 2001, he met with “senior lawyers from the Attorney General’s office, the White House counsel’s office, the Department’s of State and Defense, and the [National Security Council] met to discuss the work on our opinion” regarding whether the Geneva Convention applied to members of al-Qaeda and the Taliban.
“This group of lawyers would meet repeatedly over the next months to develop policy on the war on terrorism,” Yoo wrote. “Meetings were usually chaired by [White House counsel] Alberto Gonzales...his deputy, Timothy Flanigan, usually played the role of inquisitor, pressing different agencies to explain their legal reasoning to justify their policy recommendations.”
Yoo wrote that the Defense Department was represented by its general counsel William “Jim” Haynes, the State Department by legal adviser William House Taft IV, and the NSC by John Bellinger, that agency’s legal adviser.
Yoo wrote that the Justice Department’s Office of Legal Counsel (OLC) often clashed with the State Department over international laws banning torture.
“In our arguments, State would authoritatively pronounce what the international law was,” Yoo wrote. “OLC usually responded ‘Why?’—As in why do you believe that, why should we follow Europe’s view of international law, why should we not fall back on our traditions and historical state practices?”
