I twittered some of the more shocking parts of the CIA IG report earlier, but this statement on page 13 is of particular interest:
"The Agency, on July 29 2003, secured oral concurrence that certain deviations are not significant for the purposes of the DoJ's legal opinions."
Deviations like...waterboarding someone 183 times! Here's the thing though, Khalid Sheik Mohammed was waterboarded 183 times in March of 2003 and Abu Zubayda was waterboarded 83 in August of 2002. Which means that the "oral concurrence" secured by the CIA was months after the abuse actually occurred.
Daphne Eviatar writes that
The Justice Department, then, approved the more extreme and frequent use of the technique — the one that Holder, President Obama and most legal experts have called “torture.” How will Holder be able to limit those prosecutions to only CIA officials? This is exactly the type of evidence that I think will take the investigation not only up the chain of command at the CIA, but should shift it over to the Justice Department as well.
It also seems significant that they got permission to apply waterboarding in a more "extreme" and "frequent" fashion months after they had already applied waterboarding in said fashion--and that the OLC didn't even think expanding authorization of a torture technique was even worth putting it in writing--or maybe having done so after the fact would have looked even more legally arbitrary.
UPDATE: Incidentally, in an atmosphere where permission for going beyond legally sanctioned torture guidelines could be obtained after the fact, it's no wonder that some interrogators may have felt they had a free hand to do whatever they wanted.
UPDATE II: I should note that the full statement from the IG report is:
There were a few instances of deviations from approved procedures [redacted] with one notable exception described in this Review. With respet to two detainees at those sites, the use and frequency of one EIT, the waterboard, went beyond the projected use of the technique as originally described to the DoJ. The Agency, on July 29 2003, secured oral concurrence that certaindeviations are not significant for the purposes of the DoJ's legalopinions.
So the technique in question is waterboarding, the instances going beyond "projected use" as originally described, and this occurred with two detainees, which I'm assuming are KSM and Abu Zubayda.
-- A. Serwer
