'Borderline Torture'

The CIA last year refused to permit Justice Department investigators to question a key Al Qaeda detainee about what happened to him in the agency's custody, including reports that he was subjected to "waterboarding" and other abusive interrogation methods.

According to a report released Tuesday, the CIA's actions in blocking the investigators' access to Al Qaeda operative Abu Zubaydah were "unwarranted" and "hampered" an investigation by the Justice Department's Office of Inspector General into the FBI's knowledge of abuse  by CIA and U.S. military interrogators.

The long awaited 370-page Justice report on the abuse issue may be the most authoritative public account yet on the fierce internal struggles within the Bush administration over how terror suspects should be interrogated. The report states that one FBI agent who witnessed the CIA's interrogation of Zubaydah in the spring of 2002 was so upset that he protested it amounted to "borderline torture."  But when Office of Inspector General investigators in Jan. 2007 sought to question Zubaydah (who by then had been transferred from an overseas agency "black" site to Guantanamo Bay),  the CIA's acting general counsel, John Rizzo, refused to let them do so, the report states.

This was in contrast to Defense Department officials who permitted the Justice investigators to question other detainees who were at Guantanamo and were also allegedly subjected to abusive interrogation methods. But Rizzo, acting for the CIA, refused in part on the grounds that  Zubaydah "could make false allegations against CIA employes," the report by Inspector General Glenn Fine states.

Rizzo's action underscores yet again the CIA's extreme sensitivity about how it treated so-called "high value" detainees in its custody. The Justice Department's criminal division is currently investigating whether agency officials obstructed justice when, in November 2005, they destroyed hundreds of hours of videotapes documenting the interrogation of Zubaydah and another Al Qaeda operative.

Asked today about Rizzo's actions,  CIA spokesman Paul Gimigliano pointed a reporter to language in Fine's report saying the agency "was not convinced when the request was made that the Department of Justice IG had an immediate need to interview Abu Zubaydah." He also added: "The interrogation methods that the CIA has used in its terrorist detention program were examined and found lawful by the Department of Justice itself."

But Fine's report documents that numerous officials and agents at the FBI were deeply troubled by the interrogation methods that were being used against some Al Qaeda detainees captured after September 11. They questioned their effectiveness and raised repeated objections to them, warning in some cases that the use of such techniques would trigger investigations by Congress and interfere with attempts to prosecute the detainees in military tribunals (warnings that turned out to be prophetic).

The clashes first arose in March 2002 after Zubaydah—allegedly Al Qaeda's logistics chief—was captured in a gunfight in Pakistan and was severely wounded. He  was then taken to a secret CIA facility for medical treatment and interrogation, according to the report.

At first, the report states, two FBI agents were permitted to question Zubaydah, assisted in his treatment and developed his trust, using the bureau's traditional "rapport-building" techniques of interrogation.  This soon led to a breakthrough in which a newly cooperating Zubaydah identified a photograph of Khalid Sheikh Mohammed as the operative known as "Muktar" who was the mastermind of the September 11 attacks.

But within a few days, CIA interrogators showed up on the scene, dismissed what Zubaydah was giving the FBI as "throw-away information" and began aggressive new interrogation techniques. (Although the specific techniques are blacked out in the public version of the Justice report, agency officials have since confirmed that, among other methods, he was subjected to waterboarding-a technique that involves strapping a detainee to a board and dousing him with a wet towel in an effort to simulate drowning.) When one of the FBI agents questioned the use of the techniques, he was told by the CIA interrogators at the scene that the methods were approved "at the highest levels" and that he would not get in trouble.

But the use of such methods provoked an uproar back in Washington. Pasquale D'Amuro, then the FBI's assistant director for counterterrorism, ordered the FBI agents on the scene to return home rather than participate in such methods. He also took the issue to FBI Director Robert Mueller. In an interview with Inspector General Fine's  investigators, D'Amuro "stated that his exact words to Mueller were 'we don't do that' and that someday the FBI would be called to testify and he wanted to be able to say that the FBI did nto participate in this type of activity."

Among D'Amuro's concerns: that the use of such aggressive tecnuiques "failed to take into account an 'end game,' the report says. "D'Amuro stated that even a military tribunal would require some standard for admissibility of evidence. Obtaining information by way of 'aggressive' techniques would not only jeopardize the government's ability to use the information against the detainees, but also might have a negative impact on the agents' ability to testify in future proceedings."

Mueller agreed with D'Amuro and issued what became a "bright line rule" barring FBI agents from participating in CIA and military interrogations involving such methods. The action by Mueller is one of a number of moves that Fine praises by the FBI in distancing themselves from the actions of other agencies.

But the issue arose again later that year with the treatment of Mohammed Al-Qahtani,  another Al Qaeda suspect picked up in Pakistan who was shipped to Guantanamo and subsequently identified as the so-called 20th hijacker.  (He had been identified by fingerprints as the Saudi national who tried to fly into Orlando International Airport in August, 2001 and was turned away by immigration officials while lead hijacker Mohammed Atta was waiting for him.)

The report provides new details about the frustration of U.S. military and law enforcement officials in 2002 when Al-Qahtani refused to cooperate with interrogators. (According to the report, he insisted that he had tried to come to the United States because he wanted to sell used cars.) This led the Guantanamo commander at the time, Maj. General Geoffrey Miller, to order a "relentless" and "sustained attack" to break Al-Qahtani. Among the methods ultimately used against him—over the repeated objections of FBI agents—were the use of growling dogs, repeatedly pouring water on his head, tying a dog leash to his chain and forcing him to perform dog tricks, and manipulaton of the air conditioner in his cell to make him uncomfortable. Al Qahtani was also subjected to attempts at sexual humiliation: women's underwear was placed over his head and a bra placed over his clothing. He was stripped naked in the presence of a woman  and held down while a female interrogator straddled him. (The use of these and other techniques against him have been previously documented in two Defense Department reports.)

The new Justice report discloses that at one point one of the FBI agents on the scene learned that Al Qahtani was hospitalized for hypothermia during these interrogations. Although these methods were subsequently stopped after strong clashes between the military and FBI agents on the scene, a top FBI lawyer, Spike Bowman, later wrote a strong email to senior bureau officials protesting what was being done to the prisoner.

"Beyond any doubt, what they are doing (and I don't know the extent of it) would be unlawful were these Enemy Prisoners of War (EPW)," Bowman, a former U.S. military lawyer, wrote in the July 1, 2003, email to top bureau officials. He expressed concern that the FBI would be "tarred by the same brush" and asked for input about whether the FBI should refer to the matter to the DoD Inspector General. "Were I still on active duty, there is no question in my mind that it would be a duty to do so," Bowman wrote in his email.