photo: Banksy graphic by niznoz via Flickr

The third sentence of the Bybee Two Memo asserts Abu Zubaydah is “one of the highest ranking members of the al Qaeda terrorist organization.”

You have asked for this Office’s views on whether certain proposed conduct would violate the prohibition against torture found at Section 2340A of title 18 of the United States Code. You have asked for this advice in the course of conducting imenogations of Abu Zubaydah. As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization, with which the United States is currently engaged in an intemational armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001.

The next paragraph warns that if any of the facts in the memo provided by CIA “change,” the memo’s advice would not necessarily apply.

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply.

The memo continues to make claims about Abu Zubaydah’s central role in al Qaeda.

According to this assessment, Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden’s senior lieutenant.


He also acted as al Qaeda’s coordinator of external contacts and foreign communications. Additionally, he has acted as al Qaeda’s Counterintelligence officer and has been trusted to find spies within the organization. Zubaydah has been involved in every major terrorist operation carried out by al Qaeda. He was a planner for the Millenium plot to attack U.S. and Israeli targets during the Millennium celebrations in Jordan. Two of the central figures in this plot who were arrested have identified Zubaydah as the supporter of their cell and the plot. He also served as a planner for the Paris Embassy plot in 2001. Moreover; he was one of the planners of the September 11 attacks. Prior to his capture, he was engaged in planning future terrorist attacks against U.S. interests.

We’ve long known these assertions to be false. We’ve long known the CIA later admitted these assertions were wrong–as Abu Zubaydah himself revealed when he described his captors apologizing for claiming he was al Qaeda’s Number Three.

They told me sorry we discover that you are not number three, not a partner even not a fighter.

But as Jason Leopold reports, DOJ has now admitted in court documents that the claims it made in the Bybee Two Memo–the claims it used as a foundation for their entire torture program–were false…

The Justice Department has quietly recanted nearly every major claim the Bush administration had made about “high-value” detainee Abu Zubaydah, a Guantanamo prisoner who at one time was said to have planned the 9/11 attacks and was the No. 2 and 3 person in al-Qaeda.


For the first time, the government now officially admits that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,” and was neither a “member” of al-Qaeda nor “formally” identified with the terrorist organization.

All the torture that came after (even the DOD program, given details on DOD’s use of the Bybee Memos to craft their own torture program that appear in the OPR Report) ultimately relied on the analysis DOJ made in the Bybee Memos.

And that analysis was based on information that DOJ now admits to be false.

First we had the Curveball fabrications and the Niger forgeries, and now we have this foundational claim to a false al Qaeda Number Three. Our entire torture regime is based on the same kind of lies and bad intelligence as was the Iraq War.



Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.