About the time President George W. Bush was boasting of Abd al-Rahim al-Nashiri’s capture in late 2002, the alleged mastermind of the USS Cole bombing was undergoing waterboarding, according to top-secret documents released in a New York federal court case.

One heavily censored page of what appears to be a CIA internal report about the torture of “war on terror” detainees reads: “Interrogators administered [redacted] waterboard to Al-Nashiri.”

The same page indicates that a dozen of 92 destroyed videotapes of the CIA’s interrogations were of detainees undergoing brutal treatment. “There are 92 videotapes, 12 of which include EIT [enhanced interrogation techniques] applications,” the page says.

Though U.S. officials confirmed more than a year ago that al-Nashiri and two other detainees were subjected to the drowning sensation of waterboarding, the page, which was released on Friday, represents rare documented evidence that the technique, regarded as torture at least since the Inquisition, was used against prisoners in American custody.

On Dec. 3, 2002, President Bush cited the capture of al-Nashiri as an important victory in the “war on terror.” In a speech to an excited crowd at the fairgrounds in Shreveport, Louisiana, Bush declared:

“The other day we hauled a guy in named al-Nashiri. It's not a household name here in America. I can understand why some go blank when they hear his name. But he was the al-Qaeda commander in the Gulf States.

“Let me just put it to you this way: He no longer has the capacity to do what he did in the past, which was to mastermind the USS Cole that killed – the plot on the Cole that killed American soldiers. He's out of action for the good of the world.

“Sometimes you'll see it and sometimes you won't. But you've got to know that in this war against terror, the doctrine stands that says, ‘Either you're with us or you're with the terrorists.’”

Last year, the Pentagon formally charged al-Nashiri, a Saudi, with "organizing and directing" the Cole bombing. However, the case is now under review because President Barack Obama has barred continuation of cases under the Military Commissions Act of 2006.

Tape Inquiry

The destruction of the CIA tapes has been the subject of a year-long criminal investigation by John Durham, the acting U.S. Attorney for the Eastern District of Virginia who was appointed special prosecutor last year by Attorney General Michael Mukasey.

Civil liberties advocates also have urged fuller investigations into whether President Bush and some of his senior aides committed war crimes and violated federal anti-torture statutes by ordering CIA interrogators to subject detainees to brutal tactics.

Before leaving office, Vice President Dick Cheney admitted in several interviews that he “signed off” on waterboarding three terrorist detainees and approved the "enhanced interrogation" of 33 detainees. President Bush also indicated that he endorsed the use of harsh interrogations.

The documents, released Friday, were in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union. Last Monday, the Justice Department said the CIA destroyed 92 videotapes – far more than previously known – to prevent disclosure of evidence revealing how the agency’s interrogators subjected “war on terror” detainees to waterboarding and other brutal methods.

In a letter to the U.S. District Court for the Southern District of New York, Acting U.S. Attorney Lev Dassin said a complete list of summaries, transcripts or memoranda related to the videotapes would be filed with the court by March 20. The CIA requested an extra two weeks, Dassin said, "because it is still searching and identifying the records at issue."

However, "to date, the CIA is not aware of any transcripts of the destroyed videotapes," Dassin wrote.

Dassin said much of the information the ACLU is seeking remains classified and still cannot be released publicly. Dassin said an unredacted version of the inventory of videotapes the CIA destroyed can be viewed "in camera" by the judge presiding over the case.

According to New Yorker reporter Jane Mayer, it is also believed that the tapes were destroyed because Democratic members of Congress who were briefed about the tapes began asking questions about whether the interrogations were illegal.

“Further rattling the CIA was a request in May 2005 from Senator Jay Rockefeller, the ranking Democrat on the Senate Intelligence Committee, to see over a hundred documents referred to in the earlier Inspector General's report on detention inside the black prison sites,” Mayer wrote in her book The Dark Side. “Among the items Rockefeller specifically sought was a legal analysis of the CIA's interrogation videotapes.

"Rockefeller wanted to know if the intelligence agency's top lawyer believed that the waterboarding of [alleged al-Qaeda operative Abu] Zubayda and [alleged 9/11 mastermind] Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal. The CIA refused to provide the requested documents to Rockefeller.

"But the Democratic senator's mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request the made for these documents to [former CIA Director Porter] Goss in September 2005.”

Amrit Singh, a staff attorney with the ACLU, said Friday the "government is needlessly withholding information about these tapes from the public, despite the fact that the CIA’s use of torture – including waterboarding – is no secret.”

“This new information only underscores the need for full and immediate disclosure of the CIA’s illegal interrogation methods," Singh said. "The time has come for the CIA to be held accountable for flouting the rule of law.”

Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.

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