Something appears to have been done to detainee Abu Zubaydah which caused severe mental suffering–something amounting to a threat of imminent death, like waterboarding or mock burial. In response to that treatment AZ gives his torturers the first piece of intelligence that actually involves al Qaeda (because, of course, he wasn’t a member of al Qaeda). But the treatment is serious enough that CIA’s lawyers (probably including John Rizzo) start worrying whether it can get the torturers charged with torture. That probably weighed heavily on John Rizzo when, after he presented the “proposed” torture program on July 13, the country’s top prosecutors reacted badly. And so, panicked, he asked John Yoo for a fax laying out how to avoid being charged under the torture statute. And while CIA and OLC danced around for two more weeks preparing a document that made the torture program look palatable enough to sign off on, that wasn’t what CIA would rely on.

When Jonathan Fredman wrote the Abu Zubaydah torture team in Thailand to tell them they had gotten the green light to torture, he cited not the Bybee One memo which had just been signed, but a July 13, 2002 Yoo fax, for his discussion of intent.

The AP story on the Salt Pit death makes it clear that–at a time when Dusty Foggo was Executive Director of CIA–he was involved in an internal review of the death. He also received incredible levels of protection during his last two years at CIA, protection that probably goes beyond what you’d expect of his senior position. With each new detail of his involvement in the torture program, it seems more and more likely that that protection extended at least in part from the role he played in covering up torture.

The guys who probably approved an unauthorized technique, the guys who probably had read both Bybee Memos, relied on the intent language of the Bybee One memo to excuse an unauthorized technique, and declare the deliberate exposure of someone to near-freezing temperatures not to be murder or torture.

In this post, I’m going to test a hypothesis that OLC may not have included “cramped confinement” in its torture plans until it removed “mock burial.” If I’m right, it means after having been told OLC would not approve mock burial, OLC and CIA instead just renamed what they were doing as “cramped confinement” so as to get it past those in DOJ who were opposed to allowing the US to use mock burial in its torture program.

Nothing quite has the power of hearing the words contained in critical documents the torture era read out loud.

My gut feel is that the disappearing documents–assuming their disappearance from a sensitive compartmented information facility was not just a remarkable accident–have more to do with the JPRA document than with the change in approach that day. But there’s the distinct possibility that those documents also would have explained more about the dropped mock burials and the written list of torture techniques.

Why are a number of OLC’s opinions on torture for DOD included in CIA’s torture Vaughn Index?

Tonight Toby Warrick and Julie Tate at the Washington Post report that earlier this evening at the New York Review of Books Mark Danner posted the Red Cross’ secret February 17, 2007 report to CIA acting general counsel John Rizzo. Danner’s account, like Warren and Tate’s earlier work, reveals what the Red Cross saw in America’s gulags.