"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?"
Yoo wrote that the policies he and other senior administration officials recommended, that al-Qaeda and the Taliban were not entitled to the protections of the Geneva Convention, also rankled military lawyers.
"Judge Advocates General [JAG's] worried that if the United States did not follow the Geneva Conventions, our enemies might take it as justification to abuse American POW's in the future," Yoo wrote. "From what I saw the military had a fair opportunity to make it's views known. Representatives from the Joint Chiefs of Staff, including uniformed lawyers, were present at important meetings on the Geneva question and fully aired their arguments."
One day after Yoo wrote the still secret March 28, 2002 memo, the Department of Defense tapped a psychologist who worked on the military's Survival, Evasion, Risk, Escape (SERE) program, which was meant to prepare U.S. soldiers for abuse they might suffer if captured by an outlaw regime, not for use against prisoners.
Indeed, on March 29, 2002, one day after Zubaydah's capture, according to New Yorker reporter Jane Mayer's book "The Dark Side," James Mitchell, a military psychologist who was an expert in the use of SERE tactics, which included waterboarding, was hired to train CIA officers in the use of harsh interrogation methods specifically with regard to Zubaydah. According to Mayer's book, Mitchell told the CIA Zubaydah "had to be treated like a dog in a cage."
Even before 9/11, U.S. Intelligence officials had been actively trying to capture Abu Zuabaydah in hopes of obtaining valuable intelligence information from him about the inner workings of al-Qaeda.
In his book, "At the Center of the Storm", former CIA Director George Tenet wrote that he attended a meeting with Rice in May 2001 where Tenet discussed how Zubaydah planned to attack the US and Israel.
"For my regularly scheduled meeting with Condi Rice on May 30, [2001], I brought along [deputy CIA director] John McLaughlin, [then director of the CIA's counterterrorist center] Cofer Black, one of Cofer's top assistants, Rich B. (Rich can't be further identified here). Joining Condi were [former White House counterterrorism czar Richard] Clarke and [former CIA official] Mary McCarthy," Tenet wrote. "Rich ran through the mounting warning signs of a coming attack. They were truly frightening. Among other things, we told Condi that a notorious al-Qa'ida operative named Abu Zubaydah was working on attack plans."
McCarthy, it would later turn out, was ousted from the CIA in 2006 and accused of leaking word to the Washington Post about the CIA's secret overseas prisons where detainees such as Zubaydah were tortured.
Zubaydah was transferred to Thailand on March 31, 2002. At the prison site, he was subjected to the outlawed drowning technique known as waterboarding.
FBI officials objected to the methods CIA interrogators used against Zubaydah, according to previously released documents and testimony, which was believed to have taken place sometime in July 2002. To quell dissent, Yoo crafted another legal memo that specifically authorized waterboarding. The legal advice contained in that memo, which remains classified, was also scrutinized by OPR.
The Abu Zubaydah case was the first time that waterboarding was used against a prisoner in the "war on terror," according to Pentagon and Justice Department documents, news reports and several books written about the Bush administration's interrogation methods.
In his book "The One Percent Doctrine," author Ron Suskind reported that President George W. Bush had become obsessed with Zubaydah and the information he might have about pending terrorist plots against the United States.
"Bush was fixated on how to get Zubaydah to tell us the truth," Suskind wrote. Bush questioned one CIA briefer, "Do some of these harsh methods really work?"
The waterboarding of Abu Zubaydah was videotaped, but that record was destroyed in November 2005 after the Washington Post published a story that exposed the CIA's use of so-called "black site" prisons overseas to interrogate terror suspects.
