The Senate Intelligence Committee Report on Torture: Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (52 page)

Later, in an email to Mansfield, Kessler provided the “substantive changes” he had made to his draft following his meeting with CIA officials. The changes included the statement that Abu Zubaydah was subjected to “coercive interrogation techniques” after he “stopped cooperating.” Kessler’s revised text further stated that “the CIA could point to a string of successes and dozens of plots that were rolled up because of coercive interrogation techniques.” The statements in the revised text on the “successes” attributable to the CIA’s enhanced interrogation techniques were similar to CIA representations to policymakers and were incongruent with CIA records.
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Kessler’s “substantive changes” made after his meeting with CIA officials included the statement that many members of Congress and members of the media “have made careers for themselves by belittling and undercutting the efforts of the heroic men and women who are trying to protect us,” Kessler’s revised text contended that, “[w]ithout winning the war being waged by the media against our own government, we are going to lose the war on terror because the tools that are needed will be taken away by a Congress swayed by a misinformed public and by other countries unwilling to cooperate with the CIA or FBI because they fear mindless exposure by the press.” Finally, Kessler’s changes, made after his meeting with CIA officers, included the statement that “[t]oo many Americans are intent on demonizing those who are trying to protect us.”
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A. August 1, 2002, OLC Memorandum Relies on Inaccurate Information Regarding Abu Zubaydah

The office of Legal Counsel (OLC) in the Department of Justice wrote several legal memoranda and letters on the legality of the CIA’s Detention and Interrogation Program between 2002 and 2007. The OLC requested, and relied on, information provided by the CIA to conduct the legal analysis included in these memoranda and letters. Much of the information the CIA provided to the OLC was inaccurate in material respects. On August 1, 2002, the OLC issued a memorandum advising that the use of the CIA’s enhanced interrogation techniques against Abu Zubaydah would not violate prohibitions against torture found in Section 2340A of Title 18 of the United States Code.
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The techniques were: (1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard. The memorandum relied on CIA representations about Abu Zubaydah’s status in al-Qa’ida, his role in al-Qa’ida plots, his expertise in interrogation resistance training, and his withholding of information on pending terrorist attacks.
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The OLC memorandum included the following statement about OLC’s reliance on information provided by the CIA:

“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.”
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The facts provided by the CIA, and relied on by the OLC to support its legal analysis, were cited in the August 1, 2002, memorandum, and many were repeated in subsequent OLC memoranda on the CIA’s enhanced interrogation techniques. Much of the information provided by the CIA to the OLC was unsupported by CIA records. Examples include:

• Abu Zubaydah’s Status in Al-Qa’ida
  : The OLC memorandum repeated the CIA’s representation that Abu Zubaydah was the “third or fourth man” in al-Qa’ida.
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  This CIA assessment was based on single-source reporting that was recanted prior to the August 1, 2002, OLC legal memorandum. This retraction was provided to several senior CIA officers, including █████CTC Legal, to whom the information was emailed on July 10, 2002, three weeks prior to the issuance of the August 1, 2002, OLC memorandum.
  2300
  The CIA later concluded that Abu Zubaydah was not a member of al-Qa’ida.
  2301
  
• Abu Zubaydah’s Role in Al-Qa’ida Plots
  : The OLC memorandum repeated the CIA’s representation that Abu Zubaydah “has been involved in every major terrorist operation carried out by al Qaeda,”
  2302
  and that Abu Zubaydah “was one of the planners of the September 11 attacks.”
  2303
  CIA records do not support these claims.
  
• Abu Zubaydah’s Expertise in Interrogation Resistance Training
  : The OLC memorandum repeated the CIA’s representation that Abu Zubaydah was “well-versed” in resistance to interrogation techniques, and that “it is believed Zubaydah wrote al Qaeda’s manual on resistance techniques.”
  2304
  A review of CIA records found no information to support these claims. To the contrary, Abu Zubaydah later stated that it was his belief that all individuals provide information in detention, and that captured individuals should “expect that the organization will make adjustments to protect people and plans when someone with knowledge is captured.”
  2305
  
• Abu Zubaydah’s Withholding of Information on Pending Terrorist Attacks
  : The OLC memorandum repeated CIA representations stating that “the interrogation team is certain” Abu Zubaydah was withholding information related to planned attacks against the United States, either within the U.S. homeland or abroad.
  2306
  CIA records do not support this claim. Abu Zubaydah’s interrogation team was not “certain” that Abu Zubaydah was withholding “critical threat information.” To the contrary, the interrogation team wrote to CIA Headquarters: “[o]ur assumption is the objective of this operation [the interrogation of Abu Zubaydah] is to achieve a high degree of confidence that [Abu Zubaydah] is not holding back actionable information concerning threats to the United States beyond that which [Abu Zubaydah] has already provided.”
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B. The CIA Interprets the August 1, 2002, Memorandum to Apply to Other Detainees, Despite Language of the Memorandum; Interrogations of Abu Zubaydah and Other Detainees Diverge from the CIA’s Representations to the OLC

The CIA broadly interpreted the August 1, 2002, OLC memorandum to allow for greater operational latitude. For example, the memorandum stated that the legal advice was specific to the interrogation of Abu Zubaydah and the specific CIA representations about Abu Zubaydah; however, the CIA applied its enhanced interrogation techniques to numerous other CIA detainees without seeking additional formal legal advice from the OLC. As detailed elsewhere, the other detainees subjected to the CIA’s enhanced interrogation techniques varied significantly in terms of their assessed role in terrorist activities and the information they were believed to possess. CIA records indicate that it was not until July 29, 2003, almost a year later, that the attorney general stated that the legal principles of the August 1, 2002, memorandum could be applied to other CIA detainees.
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The August 1, 2002, OLC memorandum also included an analysis of each of the CIA’s proposed enhanced interrogation techniques with a description of how the CIA stated the techniques would be applied.
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However, in the interrogations of Abu Zubaydah and subsequent CIA detainees, the CIA applied the techniques in a manner that a Department of Justice attorney concluded “was quite different from the [description] presented in 2002.”
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As reported by the CIA’s inspector general, the CIA used the waterboarding technique against Abu Zubaydah, and later against KSM, in a manner inconsistent with CIA representations to the OLC, as well as the OLC’s description of the technique in the August 1, 2002, memorandum. In addition, the CIA assured the OLC that it would be “unlikely” that CIA detainees subjected to sleep deprivation would experience hallucinations, and that if they did, medical personnel would intervene.
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However, multiple CIA detainees subjected to prolonged sleep deprivation experienced hallucinations, and CIA interrogation teams did not always discontinue sleep deprivation after the detainees had experienced hallucinations.
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The CIA further represented to the OLC that Abu Zubaydah’s recovery from his wound would not be impeded by the use of the CIA’s enhanced interrogation techniques.
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However, prior to the OLC memorandum, DETENTION SITE GREEN personnel stated, and CIA Headquarters had confirmed, that the interrogation process would take precedence over preventing Abu Zubaydah’s wound from becoming infected.
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Other CIA detainees were also subjected to the CIA’s enhanced interrogation techniques, notwithstanding concerns that the interrogation techniques could exacerbate their injuries.
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The CIA also repeatedly used interrogation techniques beyond those provided to the OLC for review, including water dousing, nudity, abdominal slaps, and dietary manipulation.
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At the July 29, 2003, meeting of select National Security Council principals, Attorney General John Ashcroft expressed the view that “while appropriate caution should be exercised in the number of times the waterboard was administered, the repetitions described do not contravene the principles underlying DOJ’s August 2002 opinion.”
2317
Records do not indicate that the attorney general opined on the manner (as opposed to the frequency) with which the waterboard was implemented, or on interrogation techniques not included in the August 2002 opinion. The differences between the CIA’s enhanced interrogation techniques, as described by the CIA to the OLC in 2002, and the actual use of the techniques as described in the CIA Inspector General May 2004 Special Review, prompted concerns at the Department of Justice. On May 27, 2004, Assistant Attorney General Jack Goldsmith sent a letter to the CIA general counsel stating that the Special Review “raises the possibility that, at least in some instances and particularly early in the program, the actual practice may not have been congruent with all of these assumptions and limitations.” In particular, Goldsmith’s letter highlighted the statement in the Special Review that the use of the waterboard in SERE training was “so different from subsequent Agency usage as to make it almost irrelevant.”
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C. Following Suspension of the Use of the CIA’s Enhanced Interrogation Techniques, the CIA Obtains Approval from the OLC for the Interrogation of
Three Individual Detainees

Inspector General Special Review recommended that the CIA’s general counsel submit in writing a request for the Department of Justice to provide the CIA with a “formal, written legal opinion, revalidating and modifying, as appropriate, the guidance provided” in the August 1, 2002, memorandum. It also recommended that, in the absence of such a written opinion, the DCI should direct that the CIA’s enhanced interrogation techniques “be implemented only within the parameters that were mutually understood by the Agency and DoJ on 1 August 2002.”
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After receiving the Special Review, Assistant Attorney General Jack Goldsmith informed the CIA that the OLC had never formally opined on whether the CIA’s enhanced interrogation techniques would meet constitutional standards.
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On May 24, 2004, DCI Tenet, Deputy Director John McLaughlin, General Counsel Scott Muller, and others met to discuss the Department of Justice’s comments, after which DCI Tenet directed that the use of the CIA’s enhanced interrogation techniques, as well as the use of the CIA’s “standard” techniques, be suspended.
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On June 4, 2004, DCI Tenet issued a formal memorandum suspending the use of the techniques, pending policy and legal review.
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As described in this summary, on July 2, 2004, Attorney General Ashcroft and Deputy Attorney General James Comey attended a meeting of select National Security Council principals, the topic of which was the proposed CIA interrogation of Janat Gul.
2323
According to CIA records, the attorney general stated that the use of the CIA’s enhanced interrogation techniques against Gul would be consistent with U.S. law and treaty obligations, although Ashcroft made an exception for the waterboard, which he stated required further review, “primarily because of the view that the technique had been employed in a different fashion than that which DOJ initially approved.”
2324
On July 20, 2004, Ashcroft, along with Patrick Philbin and Daniel Levin from the Department of Justice, attended a National Security Council Principals Committee meeting at which Ashcroft stated that the use of the CIA’s enhanced interrogation techniques described in the August 1, 2002, OLC memorandum, with the exception of the waterboard, would not violate U.S. statutes, the U.S. Constitution, or U.S. treaty obligations. The attorney general was then “directed” to prepare a written opinion addressing the constitutional issues, and the CIA was directed to provide further information to the Department of Justice with regard to the waterboard.
2325
On July 22, 2004, Attorney General Ashcroft sent a letter to Acting DCI John McLaughlin stating that nine interrogation techniques (those addressed in the August 1, 2002, memorandum, with the exception of the waterboard) did not violate the U.S. Constitution or any statute or U.S. treaty obligations, in the context of the CIA interrogation of Janat Gul.
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On July 30, 2004, anticipating the interrogation of Janat Gul, the CIA provided the OLC for the first time a description of dietary manipulation, nudity, water dousing, the abdominal slap, standing sleep deprivation, and the use of diapers, all of which the CIA described as a “supplement” to the interrogation techniques outlined in the August 1, 2002, memorandum.
2327
The CIA’s descriptions of the interrogation techniques were incongruent with how the CIA had applied the techniques in practice. The CIA description of a minimum calorie intake was incongruent with the history of the program, as no minimum calorie intake existed prior to May 2004 and the March 2003 draft OMS guidelines allowed for food to be withheld for one to two days.
2328
The CIA represented to the OLC that nude detainees were “not wantonly exposed to other detainees or detention facility staff,” even though nude detainees at the CIA’s DETENTION SITE COBALT were “kept in a central area outside the interrogation room” and were “walked around” by guards as a form of humiliation.
2329
The CIA’s description of water dousing made no mention of cold water immersion, which was used on CIA detainees and taught in CIA interrogator training.
2330
The CIA representation describing a two-hour limit for the shackling of detainees’ hands above their heads is incongruent with records of CIA detainees whose hands were shackled above their heads for extended periods, as well as the draft March 2003 OMS guidelines permitting such shackling for up to four hours.
2331
The CIA further represented to the OLC that the use of diapers was “for sanitation and hygiene purposes,” whereas CIA records indicate that in some cases, a central “purpose” of diapers was “[t]o cause humiliation” and “to induce a sense of helplessness.”
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