The Senate Intelligence Committee Report on Torture: Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (23 page)

As in the case of Janat Gul and Sharif al-Masri, the CIA’s requests for OLC advice on the use of the CIA’s enhanced interrogation techniques against Ahmed Khalfan Ghailani were based on the fabricated reporting on the pre-election threat from the same CIA source.
837
Like Janat Gul and Sharif al-Masri, Ghailani also experienced auditory hallucinations following sleep deprivation.
838
As described in this summary, after having opined on the legality of using the CIA’s enhanced interrogation techniques on these three individual detainees, the OLC did not opine again on the CIA’s enhanced interrogation program until May 2005.

8. Country ██ Detains Individuals on the CIA’s Behalf

Consideration of a detention facility in Country ██ began in █████ 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the custody of a foreign government to CIA custody.
839
███████████████████████████████, which had not yet informed the country’s political leadership of the CIA’s request to establish a clandestine detention facility in Country ██, surveyed potential sites for the facility, while the CIA set aside $█ million for its construction.
840
In ████ 2003, the CIA arranged for a “temporary patch” involving placing two CIA detainees (Ramzi bin al-Shibh and ‘Abd al-Rahim al-Nashiri) within an already existing Country ██ detention facility, until the CIA’s own facility could be built.
841
That spring, as the CIA was offering millions of dollars in subsidies to ██████████ in Countries ██, ██, and ██,
842
CIA Headquarters directed the CIA Station in Country ██ to “think big” about how CIA Headquarters could support Country ██’s ██████████████████.
843
After the Station initially submitted relatively modest proposals, CIA Headquarters reiterated the directive, adding that the Station should provide a “wish list.”
844
In ████ 2003, the Station proposed a more expansive $█ million in ███████ subsidies.
845
█████ subsidy payments, intended in part as compensation for support of the CIA detention program, rose as high as $█ million.
846
By ███████ 2003, after an extension of five months beyond the originally agreed upon timeframe for concluding CIA detention activities in Country ██, both bin al-Shibh and al-Nashiri had been transferred out of Country ██ to the CIA detention facility at Guantanamo Bay, Cuba.
847

9. U.S. Supreme Court Action in the Case of Rasul v. Bush Forces Transfer of CIA Detainees from Guantanamo Bay to Country ██

Beginning in September 2003, the CIA held a number of detainees at CIA facilities on the grounds of, but separate from, the U.S. military detention facilities at Guantanamo Bay, Cuba.
848
In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case,
Rasul v. Bush
, might grant
habeas corpus
rights to the five CIA detainees then being held at a CIA detention facility at Guantanamo Bay.
849
Shortly after these discussions, CIA officers approached the █████████ in Country ██ to determine if it would again be willing to host these CIA detainees, who would remain in CIA custody within an already existing Country ██ facility.
850
By January ██, 2004, the █████████ in Country ██ had agreed to this arrangement for a limited period of time.
851

Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the National Security Council, and the White House Counsel for advice on whether the five CIA detainees being held at Guantanamo Bay should remain at Guantanamo Bay or be moved pending the Supreme Court’s decision.
852
After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantanamo Bay pending the Supreme Court’s resolution of the case.
853
The Department of Justice concluded that a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had originally been detained under military authority and had been declared to the ICRC.
854
Nonetheless, by April ██, 2004, all five CIA detainees were transferred from Guantanamo Bay to other CIA detention facilities.
855

Shortly after placing CIA detainees within an already existing Country ██ facility for a second time, tensions arose between the CIA and █████ Country ██ █████████.
856
In ████ 2004, CIA detainees in a Country ██ facility claimed to hear cries of pain from other detainees presumed to be in the
█████████████████████████████████
facility.
857
When the CIA chief of Station approached the
██████████████████████████████████████
about the accounts of the CIA detainees, the ██████ stated with “bitter dismay” that the bilateral relationship was being “tested.”
858
There were also counterintelligence concerns relating to CIA detainee Ramzi bin al-Shibh, who had attempted to influence a Country ██ officer.
859
These concerns contributed to a request from
█████████████████
in
█████
2004 for the CIA to remove all CIA detainees from Country ██.
860

In
██████
2004, when the chief of Station in Country ██ again approached the
██████████████████████████████
with allegations from CIA detainees about the mistreatment of Country ██ detainees
██████
in the facility, the chief of Station received an angry response that, as he reported to CIA Headquarters, “starkly illustrated the inherent challenges [of]
███████████████████████████████████
.” According to the chief of Station, Country ██ saw the CIA as “querulous and unappreciative recipients of their
███████
cooperation.”
861
By the end of 2004, relations between the CIA and Country ██ deteriorated, particularly with regard to intelligence cooperation.
862
The CIA detainees were transferred out of Country ██ in █████ 2005.
863

Beginning in
█████
2005, the
██████████████████████████
in Country █ insisted, over the CIA’s opposition, to brief Country █’s
█████████
on the effort to establish a more permanent and unilateral CIA detention facility, which was under construction. A proposed phone call to the ██████████ from Vice President Cheney to solidify support for CIA operations in Country █ was complicated by the fact that Vice President Cheney had not been told about the locations of the CIA detention facilities. The CIA wrote that there was a “primary need” to “eliminate any possibility that [██████████] could explicitly or implicitly refer to the existence of a black site in [the country]” during the call with the vice president.
864
There are no indications that the call occurred. The ██████████ of Country █ nonetheless approved the unilateral CIA detention facility, which cost $
██
million, but was never used by the CIA.
865
By ████████ 2006, the CIA was working with Country █ to decommission what was described as the “aborted” project.
866

L. The Pace of CIA Operations Slows; Chief of Base Concerned About “Inexperienced, Marginal, Underperforming” CIA Personnel; Inspector General Describes Lack of Debriefers as “Ongoing Problem”

In the fall of 2004, CIA officers began considering “end games,” or the final disposition of detainees in CIA custody. A draft CIA presentation for National Security Council principals dated August 19, 2004, identified the drawbacks of ongoing indefinite detention by the CIA, including: the need for regular relocation of detainees, the “tiny pool of potential host countries” available “due to high risks,” the fact that “prolonged detention without legal process increases likelihood of HVD health, psychological problems [and] curtails intel flow,” criticism of the U.S. government if legal process were delayed or denied, and the likelihood that the delay would “complicate, and possibly reduce the prospects of successful prosecutions of these detainees.
867
CIA draft talking points produced a month later state that transfer to Department of Defense or Department of Justice custody was the “preferred endgame for 13 detainees currently in [CIA] control, none of whom we believe should ever leave USG custody.
868

By the end of 2004, the overwhelming majority of CIA detainees—113 of the 119 identified in the Committee Study—had already entered CIA custody. Most of the detainees remaining in custody were no longer undergoing active interrogations; rather, they were infrequently questioned and awaiting a final disposition. The CIA took custody of only six new detainees between 2005 and January 2009: four detainees in 2005, one in 2006, and one—the CIA’s final detainee, Muhammad Rahim—in 2007.
869

In 2004, CIA detainees were being held in three countries: at DETENTION SITE BLACK in Country ██, at the ███ facility ██████████████ in Country █, as well as at detention facilities in Country ██. DETENTION SITE VIOLET in Country ██ opened in early 2005.
870
On April 15, 2005, the chief of Base at DETENTION SITE BLACK in Country ██ sent the management of RDG an email expressing his concerns about the detention site and the program in general. He commented that “we have seen clear indications that various Headquarters elements are experiencing mission fatigue vis-à-vis their interaction with the program,” resulting in a “decline in the overall quality and level of experience of deployed personnel,” and a decline in “level and quality of requirements.” He wrote that because of the length of time most of the CIA detainees had been in detention, “[the] detainees have been all but drained of actionable intelligence,” and their remaining value was in providing “information that can be incorporated into strategic, analytical think pieces that deal with motivation, structure and goals.” The chief of Base observed that, during the course of the year, the detention site transitioned from an intelligence production facility to a long-term detention facility, which raised “a host of new challenges.” These challenges included the need to address the “natural and progressive effects of long-term solitary confinement on detainees” and ongoing behavioral problems.
871

With respect to the personnel at DETENTION SITE BLACK, the chief of Base wrote:

“I am concerned at what appears to be a lack of resolve at Headquarters to deploy to the field the brightest and most qualified officers for service at [the detention site]. Over the course of the last year the quality of personnel (debriefers and [security protective officers]) has declined significantly. With regard to debriefers, most are mediocre, a handfull [
sic
] are exceptional and more than a few are basically incompetent. From what we can determine there is no established methodology as to the selection of debriefers. Rather than look for their best, managers seem to be selecting either problem, underperforming officers, new, totally inexperienced officers or whomever seems to be willing and able to deploy at any given time. We see no evidence that thought is being given to deploying an ‘A-Team.’ The result, quite naturally, is the production of mediocre or, I dare say, useless intelligence . . .

“We have seen a similar deterioration in the quality of the security personnel deployed to the site . . . If this program truly does represent one of the agency’s most secret activities then it defies logic why inexperienced, marginal, underperforming and/or officers with potentially significant [counterintelligence] problems are permitted to deploy to this site. It is also important that we immediately inact [
sic
] some form of rigorous training program.”
872

A CIA OIG audit completed in June 2006 “found that personnel assigned to CIA-controlled detention facilities, for the most part, complied with the standards and guidelines in carrying out their duties and responsibilities.” The OIG also found that, “except for the shortage of debriefers, the facilities were staffed with sufficient numbers and types of personnel.” The lack of debriefers, however, was described as “an ongoing problem” for the program. According to the audit, there were extended periods in 2005 when the CIA’s DETENTION SITE ORANGE in Country
██
had either one or no debriefers. At least twice in the summer of 2005, the chief of Station in that country requested additional debriefers, warning that intelligence collection could suffer. Months later, in January 2006, the chief of Base at the detention site advised CIA Headquarters that “the facility still lacked debriefers to support intelligence collection requirements, that critical requirements were ‘stacking up,’ and that gaps in the debriefing of detainees were impacting the quantity and quality of intelligence reporting and would make the work of future debriefers more difficult.
873

M. Legal and Operational Challenges in 2005

1. Department of Justice Renews Approval for the Use of the CIA’s Enhanced Interrogation Techniques in May 2005

On May 10, 2005, the new acting assistant attorney general for OLC, Steven Bradbury, issued two legal memoranda. The first analyzed whether the individual use of the CIA’s 13 enhanced interrogation techniques—including waterboarding, as well as a number of interrogation techniques that had been used in 2003 and 2004, but had not been analyzed in the original August 1, 2002, OLC memorandum—were consistent with the criminal prohibition on torture.
874
The second memorandum considered the combined use of the CIA’s enhanced interrogation techniques.
875
Both legal memoranda concluded that the use of the CIA’s enhanced interrogation techniques did not violate the torture statute.