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After September 11: Our State of Exception

Stephen Crowley/The New York Times/Redux
President Bush and Vice President Cheney at the White House, March 2008
And then he answered me in English. And he said he would not speak to me in God’s language. And then I said, “That’s okay. We know who you are.”

They did not quite know, as it happened. The facts that Secretary Rumsfeld had crowed about at the Pentagon as “well established” were not facts at all. Abu Zubaydah was not “a close associate” of Osama Bin Laden, nor was he “number two,” nor even “very close to the number two person in the organization”—nor, as the Department of Justice admitted in court documents in 2009, did he have any role in or advance knowledge of the September 11 attacks, nor was he a member of the organization or “formally” identified with it at all.6 To US officials desperate for information on al-Qaeda six months after the attacks on New York and Washington, he seemed, however, a very rich prize indeed—as Abu Zubaydah seemed to recognize, according to Kiriakou’s recounting of the initial bedside interview at that undisclosed location:

And then he asked me to smother him with a pillow. And I said, “No, no. We have plans for you.”7

The plans even then were being fought over. The interrogation would be led at this initial stage by two experienced interrogators from the FBI, using “traditional methods”: helping to nurse the wounded man back to health, changing his bandages, washing his wounds, building a relationship, respect, rapport, etc. One of these men, the Lebanese-born Ali Soufan, would startle the prisoner by addressing him as Hani, the nickname his mother had used with him.

Soufan has argued strenuously, first as an unnamed source for journalists and now in newspaper articles and congressional testimony and a book in his own name, that all the valuable information that was gained from Abu Zubaydah—including the identity of so-called “dirty bomber” Jose Padilla and the code name of Khalid Sheikh Mohammed—was gained in those initial discussions.8 Traditional interrogation, he and his colleagues contend, was working. Torture was not needed.

Others in the government, particularly in the CIA, did not believe it; they were convinced, as a Justice Department report has it, that “he was not telling all he knew.” How did they come to this conclusion? It is a fascinating question. Unlike the fantasy parable of the Ticking Bomb, in which officials know everything—that the nuclear bomb has been planted, that it will be detonated soon, that the man in custody who denies knowing its location actually knows it, that only torture will make him speak—in the real world it is the vast unknowns we fear, the deserts of ignorance, unbounded by any certain facts.

Donald Rumsfeld famously distinguished between the “known unknowns”—what we know we don’t know, which can be frightening—and the “unknown unknowns”—what we don’t even know we don’t know, which can be terrifying. After September 11, that terror was expressed in a simple calculus of action, well described by the CIA inspector general in 2004:

Lack of knowledge led analysts to speculate about what a detainee “should know,” [versus] information the analyst could objectively demonstrate the detainee did know…. When a detainee did not respond to a question posed to him, the assumption at Headquarters was that the detainee was holding back and knew more; consequently, Headquarters recommended resumption of [enhanced interrogation techniques].9

In an atmosphere of fear and anxiety, it seems the prudent course to assume what the detainee “should know” and proceed accordingly. And make no mistake, the critical decisions laying the basis for the state of exception were made in a state of anxiety and fear. How could they not have been? After September 11, as Richard Clarke put it simply, “we panicked.” Terrorism, downgraded as a threat by the incoming Bush administration, now became the single all-consuming obsession of a government suddenly on a “war footing.”

Every day the President and other senior officials received the “threat matrix,” a document that could be dozens of pages long listing “every threat directed at the United States”10 that had been sucked up during the last twenty-four hours by the vast electronic and human vacuum cleaner of information that was US intelligence: warnings of catastrophic weapons, conventional attacks, planned attacks on allies, plots of every description and level of seriousness. “You simply could not sit where I did,” George Tenet later wrote of the threat matrix, “and be anything other than scared to death about what it portended.”11

One official compared reading the matrix every day—in an example of the ironic “mirroring” one finds everywhere in this story—to “being stuck in a room listening to loud Led Zeppelin music,” which leads to “sensory overload” and makes one “paranoid.” He compared the task of defending the country to playing goalie in a game in which the goalie must stop every shot and in which all the opposing players, and the boundary lines, and the field, are invisible.12

All this bespeaks not only an all-encompassing anxiety about information—about the lack of map rooms displaying the movements of armies, the maddening absence of visible, identifiable threats, the unremitting angst of making what could be life-and-death judgments based on the reading and interpreting of inscrutable signs—but also, I think, guilt over what had been allowed to happen, together with the deep-seated need to banish that guilt, to start again, cleansed and immaculate. Thus “the War on Terror”—a new policy for a new era, during which the guardians of the nation’s security could boast a perfect record: no attacks on American soil. The attacks of September 11 would be banished to a “before time” when the “legalistic” Clinton rules applied, before “the gloves came off.” The successful attack could thus be blamed on the mistaken beliefs of another time, another administration. The apocalyptic portal of September 11 made everything new, wiping out all guilt and blame.

The argument escalated, between the FBI and CIA interrogators at the “black site,” between various factions back in Washington. CIA officers, led by two “contractors” who had been Air Force instructors in the so-called SERE program in the military—a program designed to prepare downed pilots for hostile questioning—prepared an interrogation plan for the detainee, and it was passed to CIA headquarters and discussed in the White House. By mid-May the national security adviser let it be known that the plan could go forward, subject to Justice Department approval. The FBI interrogators, the most experienced on the scene, were withdrawn. In their wake CIA officers began to apply—as President Bush preferred to call them—an “alternative set of procedures.”

We should remember that the contractors hired by the CIA improvised these from a cold war–era program the Air Force had “designed to simulate conditions to which [pilots] might be subject if taken prisoner by enemies”—that is, the Soviets and the Chinese—“that did not abide by the Geneva Conventions.” Which is to say, SERE training, as one former instructor told the Senate Armed Services Committee, from whose report I am quoting, was “based on illegal exploitation…of prisoners over the last fifty years [emphasis added].”13

We see here perhaps the prime example of the improvisation inherent in the state of exception. First, the critical security bureaucracies in the US government—the CIA and the military—derived their “enhanced interrogation techniques” from a cold war–era pilot-training program that had been intentionally designed to reproduce illegal techniques. They then placed before government attorneys the through-the-looking-glass task of proving that those interrogation techniques are perfectly permissible under the tenets of international and domestic law that they were expressly designed to violate.

This history means that a central line of reasoning running through the so-called torture memos is the peculiar notion that because the pilot trainees, who were volunteers and who could, of course, halt the procedures at any time, did not suffer, for example, long-term psychological harm, then detainees subjected to these techniques, as it were, for real, would not suffer any either. An interrogation program deemed absolutely essential to protect the country during a national emergency was thus “reverse-engineered” from a training program for pilots by contract instructors who had never carried out an actual interrogation. However much this might seem to be a fantasy, in fact it is true.

The leaders of the new War on Terror would not be “reading terrorists their Miranda rights.” They would launch their new War on Terror with an unblemished record and with a willingness, a commitment, to do whatever it took. That meant gaining the most vital fuel: information. When it came to the interrogation of Abu Zubaydah, the victor in the struggle between the FBI and its traditional “law enforcement methods” and the CIA and its improvised “alternative set of procedures” was preordained. The judgment would seem to be built on evidence, on the thinness of what the detainee was providing, but in fact was based on conviction. Abu Zubaydah was known to be a high official in al-Qaeda—a “lieutenant of Osama bin Laden,” as Vice President Cheney is still describing him in his recent memoir, In My Time (2011). If he gives up only relatively modest information, mustn’t that very fact mean he is concealing things that are important? The conviction of secret knowledge, set beside the paucity of what is revealed, proves the conclusion of deception. (It is a familiar, if distinctive, chain of reasoning. Mustn’t, after all, the failure of the UN inspectors to find weapons of mass destruction in Iraq be confirmation that Saddam is hiding them?)

Back at the Department of Justice Deputy Assistant Attorney General John Yoo and a young colleague were working furiously on a memorandum that judged whether twelve proposed techniques—including slamming the captive’s head against a wall and suffocating him with water—violated the statutes of the US criminal code and the US government’s international undertakings forbidding torture. Their memos went through several drafts. “Bring the Bad Things Memo,” Yoo e-mailed his young colleague before a White House meeting during that heady spring. “I like your new name for it,” she replied brightly. There is in these exchanges all the breathless excitement of young professionals breaking new legal ground.

Experimentation and improvisation are inherent in the very genes of our state of exception—as Abu Zubaydah seems to realize in recounting the second, or “correction,” phase of his interrogation, which followed his weeks sitting chained to the chair in the cold white room:

Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow…. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room….
I was then put into the tall black box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside…. They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck.
  1. 6

    In documents filed in US District Court in Washington in September 2009, the Justice Department conceded that the government was no longer contending that Zubaydah

    was a “member” of al-Qaeda in the sense of having sworn bavat (allegiance) or having otherwise satisfied any formal criteria that either [Zubaydah] or al-Qaeda may have considered necessary for inclusion in al-Qaeda…. Rather, [the government’s] detention of [Zubaydah] is based on conduct and actions that establish [Zubaydah] was “part of” hostile forces and ‘substantially supported’ those forces.
    Earlier, at his Combatant Status Review Tribunal at Guantánamo, Zubaydah noted that his interrogators had “told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter.” See, for example, Jason Leopold, “Government Recants Major Terror Claims on ‘High Value’ Detainee Abu Zubaydah,” TruthOut, March 30, 2010, and Andy Worthington, “Abu Zubaydah: Tortured for Nothing,” Commentaries: The Future of Freedom Foundation, April 5, 2010. See also Barton Gellman, “The Shadow War, in a Surprising New Light, The Washington Post, June 20, 2006. 

  2. 7

    See “CIA–Abu Zubaydah. Interview with John Kiriakou,” pp. 8–9,” an unedited, rough, and undated transcript of a video interview conducted by Brian Ross of ABC News, apparently in December 2007, and available at abcnews.go.com. 

  3. 8

    See Ali Soufan, “My Tortured Decision,” The New York Times, April 22, 2009. See also Ali Soufan and David Freeman, The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda (Norton, 2011). 

  4. 9

    Inspector General, Central Intelligence Agency, Special Review: Counterterrorism and Detention Activities (September 2001–October 2003), May 7, 2004, p. 83. 

  5. 10

    Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (Norton, 2007), p. 71. 

  6. 11

    Quoted in Goldsmith, The Terror Presidency, p. 72. 

  7. 12

    Goldsmith, The Terror Presidency, pp. 72–73. 

  8. 13

    See “Executive Summary and Conclusions,” Inquiry into the Treatment of Detainees in US Custody, Senate Armed Services Committee, December 2008, p. xiii; quoted in my Stripping Bare the Body: Politics Violence War (Nation Books, 2009), p. 526. 

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