During a Fox News appearance, John Yoo falsely claimed that handling terror suspects in the criminal justice system means "we're not going to be able to get intelligence from the people we capture," ignoring recent examples of such suspects cooperating with law enforcement officials. Yoo also falsely equated the Bush administration's waterboarding of detainees with the training U.S. soldiers undergo.
Yoo falsely claims U.S. can't get intelligence from terror suspects in criminal justice system
Yoo: "[W]e're not going to be able to get intelligence from the people we capture." During the segment, former Justice Department lawyer and Philadelphia Inquirer columnist Yoo commented: "Well, I worry that when the Obama administration makes decisions like transferring Khalid Shaikh Mohammed, the guy who actually came up with the 9/11 attacks, to New York City for a trial in civilian court, or treats the Christmas Day bomber automatically like a criminal defendant, we are returning back to a pre-September 11 mindset, and that worries me because we're not going to be able to get intelligence from the people we capture."
Administration sources say Abdulmutallab currently "cooperating," officials say he provided intelligence after being Mirandized. Responding to Senate Intelligence Committee chairwoman Sen. Diane Feinstein in a February 2 hearing (accessed via the Nexis database), FBI Director Robert Mueller agreed that alleged attempted Christmas Day bomber Umar Farouk Abdulmutallab "has provided valuable information" and that "the interrogation continues despite the fact that he has been Mirandized." Director of National Intelligence Dennis Blair testified in the same hearing: "There are decisions that have to be made in which you balance the requirement for intelligence with the requirement for a prosecution and the sorts of pressure that you bring onto the people that you arrest in either form. It's got to be a decision made at the time. And I think the balance struck in the Mutallab was a very -- was an understandable balance. We got good intelligence, we're getting more."
Moreover, a February 2 Reuters article reported "a law enforcement official['s]" comment that "Abdulmutallab is talking and has been talking since last week providing useful, actionable and current intelligence that we've been actively following up on." The New York Times also reported:
Umar Farouk Abdulmutallab, the Nigerian man accused of trying to blow up a jetliner bound for Detroit on Dec. 25, started talking to investigators after two of his family members arrived in the United States and helped earn his cooperation, a senior administration official said Tuesday evening.
Mr. Abdulmutallab, 23, began speaking to F.B.I. agents last week in Detroit and has not stopped, two government officials said. The officials declined to disclose what information was obtained from him, but said it was aiding in the investigation of the attempted terrorist attack.
"With the family, the F.B.I. approached the suspect," the senior administration official said, speaking to reporters at the White House on the condition of anonymity because of the pending legal case. "He has been cooperating for days." [New York Times, 2/2/10]
Attempted NYC subway bomber Zazi reportedly "shar[ing] information about confederates overseas." The Washington Post reported that Najibullah Zazi, an Afghan national who reportedly received training from Al Qaeda in Pakistan and pleaded guilty to terrorism charges last month, is "shar[ing] information about confederates overseas" and "began to accelerate his cooperation after authorities charged his Afghan-born father with crimes and threatened to charge his mother with immigration offenses -- options that are not available in the military justice system."
Newsweek's Isikoff: Zazi "the fourth major terror suspect to cut deals or at least begin plea negotiations with the FBI in recent months." Newsweek's Michael Isikoff reported that suspects interrogated by the FBI "have already produced a bonanza of intelligence about the inner workings of Al Qaeda and its affiliates that is being actively used by security services around the world."
From Isikoff's February 22 blog post:
By pleading guilty to plotting what he called a "martyrdom operation" and agreeing to cooperate about his Al Qaeda contacts in Pakistan, Zazi becomes the fourth major terror suspect to cut deals or at least begin plea negotiations with the FBI in recent months. Those suspects have already produced a bonanza of intelligence about the inner workings of Al Qaeda and its affiliates that is being actively used by security services around the world, according to current and former U.S. counterterrorism officials and numerous press reports.
Since last summer alone, the terror suspects who are publicly known to have cooperated with the FBI include Bryant Neal Vinas, a former Long Island, New York truck driver who has acknowledged providing Al Qaeda with information about New York area transit systems; David Coleman Headley, a Chicago resident who had contacts with a high level Al Qaeda linked figure in Pakistan and conducted scouting runs for the November, 2008 terror attacks in Mumbai, India, and Umar Farouk Abdulmutallab, the Nigerian suspect who tried to blow up the Northwest airlines flight on Christmas Day. Officials say Abdulmutallab began cooperating about his contacts with Al Qaeda in Yemen after the FBI reached out to two members of his family in Nigeria -- one of them his mother -- and brought them to Detroit to persuade the suspect to begin cooperating.
"These are major flips. This is huge information that these guys are giving," said Ali Soufan, a former top FBI counterterrorism agent who is now a security consultant based in the Middle East. "This shows that law enforcement can be strong tool at our disposal.
Just as importantly, notes Soufan, law-enforcement and intelligence officials around the world have been eager to talk to the FBI suspects -- and use the information they are providing -- precisely because it was gleaned without the use of rough interrogation tactics, like waterboarding or sleep deprivation, that would create political problems in most major Western countries that have officially condemned such tactics.
Vinas, for example, has provided evidence in a terrorism case in Belgium. Indian investigators have traveled to Chicago to learn what Headley has been saying as part of their continued investigation into the Mumbai attacks.
Yoo makes false comparison between waterboarding of detainees, training for U.S. military
Yoo falsely claims waterboarding is a method "we use on our own soldiers." During the segment, Yoo falsely claimed that U.S. interrogators under the Bush administration used "the kinds of methods we use on our own soldiers to train them in the event they are captured." He continued: "Waterboarding is something that we had a lot of information on; 20,000 American soldiers and officers had undergone it and had not suffered any lasting pain, harm, or suffering. So when we looked at the statute that Congress wrote and we looked at that evidence, we in the Justice Department and a lot of other lawyers, too, said we don't think it amounts to torture because we would not be doing it to our own soldiers otherwise."
Bush DOJ memo: Individuals undergoing military's SERE training are "obviously in a very different situation from detainees undergoing interrogation." In a May 30, 2005, Office of Legal Counsel memo, Steven G. Bradbury, the Bush administration's principal deputy assistant attorney general at the time, wrote that individuals undergoing the military's Survival, Evasion, Resistance, and Escape (SERE) training are "obviously in a very different situation from detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training."
Senate Armed Services Committee: "There are fundamental differences between a SERE school exercise and a real world interrogation." From an April 22, 2009, Senate Armed Services Committee report:
(U) SERE school techniques are designed to simulate abusive tactics used by our enemies. There are fundamental differences between a SERE school exercise and a real world interrogation. At SERE school, students are subject to an extensive medical and psychological pre-screening prior to being subjected to physical and psychological pressures. The schools impose strict limits on the frequency, duration, and/or intensity of certain techniques. Psychologists are present throughout SERE training to intervene should the need arise and to help students cope with associated stress. And SERE school is voluntary; students are even given a special phrase they can use to immediately stop the techniques from being used against them.
CIA IG: Interrogator explained CIA technique differed from DOJ-approved technique because "it is 'for real.' " From the section titled "Videotapes of Interrogations" in the CIA inspector general's "Special Review: Counterterrorism Detention and Interrogation Activities":
OIG's review of the videotapes revealed that the waterboard technique employed at [REDACTED] was different from the technique as described in the DoJ opinion and used in the SERE training. The difference was in the manner in which the detainee's breathing was obstructed. At the SERE School and in the DoJ opinion, the subject's airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator [REDACTED] continuously applied large volumes of water to a cloth that covered the detainee's mouth and nose. One of the psychologists/interrogators acknowledged that the Agency's use of the technique differed from that used in SERE training and explained that the Agency's technique is different because it is "for real" and is more poignant and convincing.
CIA IG: "Waterboard was used in a manner inconsistent with the written DoJ legal opinion of 1 August 2002." From the inspector general's report:
During the interrogation of two detainees, the waterboard was used in a manner inconsistent with the written DoJ legal opinion of 1 August 2002. DoJ had stipulated that its advice was based upon certain facts that the Agency had submitted to DoJ, observing, for example, that " ... you (the Agency) have also orally informed us that although some of the techniques may be used with more than once [sic], that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions." One key Al Qa'ida terrorist was subjected to the waterboard at least 183 times [REDACTED] and was denied sleep for a period of 180 hours. In this and another instance, the technique of application and volume of water used differed from the DoJ opinions.