Chapter 3 - Black Sites, Lies, and Videotapes

Submitted by Larry Siems on Wed, 12/02/2009 - 16:28

In November 2002, a detainee whose name we may never know was doused with water, shackled naked to the floor, and left overnight in a frigid cell in a CIA black site known as “The Salt Pit” on the outskirts of Kabul, Afghanistan. He died of hypothermia. The supervisor of the facility, an agent with no experience as an interrogator or a jailer, ordered him buried in an unmarked grave.1

Larry Siems 12/07/10: We now know the identity of this detainee. A footnote on page 29 of the document (http://judiciary.house.gov/hearings/pdf/BybeeResponse090729.pdf) Jay Bybee submitted in response to the Justice Department's Office of Professional Responsibility investigation into the development of the torture memos (http://www.aclu.org/national-security/justice-department-report-reveals-...) identified the victim as Gul Rahman. Rahman, AP reporters Adam Goldman and Kathy Gannon learned (http://www.cleveland.com/world/index.ssf/2010/03/gul_rahman_death_in_the...), was a suspected Afghan militant in his early 30s who was detained with four others on October 29, 2002 in Islamabad, Pakistan . After a week in custody, he was separated from the group and flown to Afghanistan , where he was interrogated at the Salt Pit facility continuously until his death on November 20, 2002.

As this was happening, the CIA was dispatching a lawyer to the black site in Thailand to review the videotapes of the Abu Zubaydah interrogation. For weeks the agency had been discussing destroying the tapes; a cable sent from the secret prison to headquarters in August, the month Zubaydah was waterboarded 83 times, discussed “the security risks of videotape retention” and suggested “new procedures for videotape retention and disposal.” A September 6, 2002 email between CIA attorneys has as its subject “Destruction proposal on disposition of videotapes at field,” and an email two months later “from a CIA officer to CIA officers and attorneys” dated November 6 follows up with the “proper procedures for destruction of the interrogation videotapes.”2

But Langley had decided it wanted a “random independent review” of the tapes first, and so in late November, an attorney from the CIA General Counsel's office was sent to verify that Abu Zubaydah's torment had followed the approved script. With his assurances that it had, the discussion resumed: on November 27, a cable was sent from the black site “requesting approval for destruction of the interrogation tapes,” and on December 3, 2002, headquarters responded with a cable with the subject line “Closing of facility and destruction of classified information” and an email “outlining the destruction plan for the videotapes.”3

Marcy Wheeler 12/10/09: Two things you might want to add:

First, several of the tapes were probably broken and blank by this point (as reported in the IG Report). And second, the CIA has more recently said they also did the review to set up an affirmative defense for interrogators, as reflected in Wendy Hilton's description of Doc 60 (which appears to be the January 9 document described as “reflect[ing] the CIA attorney's view on what facts were relevant to determine whether the interrogation of Abu Zubaydah was compliant with law and policy”), available at http://www.aclu.org/pdfs/safefree/acluvdod_decl_hilton_09222009.pdf. Hilton noted:

Throughout the CIA's terrorist interrogation program the CIA was concerned that its officers could face civil and criminal liability for their actions. The CIA directed its attorneys to review the record of the first interrogations to ensure that they were conducted consistent with the Department of Justice's guidance, which could arguably provide a defense to possible domestic and international criminal and civil liability. Therefore, while the CIA attorneys may have performed their analysis to determine legal and policy compliance, that analysis was in the context of evaluating possible defenses for anticipated civil and criminal litigation.

Also, note that one of these email exchanges refers to a “leaks memo.”

In the midst of this exchange, back in Afghanistan, CIA agents delivered a young mullah named Habibulah into the hands of army interrogators at Bagram Collection Point, a converted hangar at the former Soviet airbase about 50 kilometers north of Kabul. Within a week, an Armed Services Medical Examiner reported, “the remains” were “presented for autopsy clothed in a disposable diaper. No additional clothing or personal effects accompan[ied] the body.”4

Habibulah had been “found unresponsive, restrained in his cell”—handcuffed to the wire mesh ceiling of the plywood-walled isolation cell, that is—at 12:15 a.m. on December 4, 2002. The military first claimed he had died of natural causes. The Medical Examiner, however, concluded the Cause of Death was “pulmonary embolism due to blunt force injuries”; the Manner of Death, “homicide.”5

The day Habibulah was killed, the CIA switched off the video cameras at the black site in Thailand.

In addition to the torture of Abu Zubaydah, they had for the previous two weeks been recording the interrogation of a second “high value detainee,” Abd al-Rahim al-Nashiri, whose arrest the administration trumpeted on November 21, 2002. The alleged chief of al-Qaeda operations in the Persian Gulf and the suspected organizer of the 2000 bombing of the USS Cole, Al-Nashiri was captured in Dubai in October and questioned for a month before being flown to Thailand on November 15—where, as the CIA's Inspector General observes blandly, “The interrogation proceeded after [redacted] the necessary authorization.”6

Marcy Wheeler 12/10/09: Don’t know whether you want to put a link to this, but there was a spot report from Nashiri’s interrogation that was sent on November 20 sent to IG: http://www.aclu.org/torturefoia/released/082409/cia_ig/oig196.pdf

Also, it appears that they were never keeping the videotapes from Nashiri, but were instead taping over them (per the description of them in ACLU foiaFOIA from March). So by mid-November, they would have already decided they weren’t keeping these for posterity.

“Psychologist/interrogators began Al-Nashiri's interrogations using EITs immediately upon his arrival,” the Inspector General reported. They continued, though he “provided lead information on other terrorists during his first day of interrogation,” for eleven days, and on the twelfth day, “psychologist/interrogators administered two applications of the waterboard to Al-Nashiri during two separate interrogation sessions.” They didn't stop there. The cameras were switched off on December 4 th , but “enhanced interrogation continued for two weeks in December, at which time his interrogators “assessed him to be ‘compliant.'”7

Again, as in the interrogation of Abu Zubaydah, Washington wasn't satisfied:

Subsequently, CTC officers at Headquarters [redacted] sent a [redacted] senior operations officer (the debriefer) [redacted] to debrief and assess Al-Nashiri. The debriefer assessed Al-Nashiri as withholding information, at which point [redacted] reinstated [redacted] hooding, and handcuffing.8

In a footnote elsewhere in his report, the Inspector General explains the difference between an interrogator and a debriefer:

Before 11 September 2001, Agency personnel sometimes used the terms interrogation/interrogator and debriefing/debriefer interchangeably. The use of these terms has since evolved and, today, CTC more clearly distinguishes their meanings. A debriefer engages a detainee solely through question and answer. An interrogator is a person who completes a two-week interrogations training program, which is designed to train, qualify, and certify a person to administer EITs. An interrogator can administer EITs during an interrogation of a detainee only after the field, in coordination with Headquarters, assesses the detainee as withholding information. An interrogator transitions the detainee from a non-cooperative to a cooperative phase in order that a debriefer can elicit actionable intelligence through non-aggressive techniques during debriefing sessions. An interrogator may debrief a detainee during an interrogation; however, a debriefer may not interrogate a detainee.9

The CIA had begun offering 2-week trainings for interrogators in November 2002; “[s]everal CTC officers, including a former SERE instructor, designed the curriculum, which included a week of classroom instruction followed by a week of ‘hands-on' training in EIT's,” the Inspector General reported. “Once certified, an interrogator is deemed qualified to conduct an interrogation employing EITs.”10 “Conducting” interrogations had clear limits, however. As in the “Mother may I” process Dr. James Mitchell had modeled during the interrogation of Abu Zubaydah, these newly-trained interrogators were required to seek permission from Headquarters for each and every use of an enhanced interrogation technique.

But in the black site in Thailand, ordered to resume Al-Nashiri's interrogation but freed from the scrutiny of the video cameras, interrogators quickly began to stray from the DoJ-approved list of 10 enhanced interrogation techniques. They smoked cigars and blew smoke in Al-Nashiri's face during sessions.11 They scrubbed him with a stiff brush “that was intended to induce pain.” They stood on his ankle shackles, “which resulted in cuts and bruises.” They “employed potentially injurious stress positions” on the prisoner:

Al-Nashiri was required to kneel on the floor and lean back. On at least one occasion, an Agency officer reportedly pushed Al-Nashiri backward while he was in the stress position. On another occasion, [redacted] said he had to intercede after [redacted] expressed concern that Al-Nashiri's arms might be dislocated from his shoulders. [Redacted] explained that, at the time, the interrogators were attempting to put Al-Nashiri in a standing stress position. Al-Nashiri was reportedly lifted off the floor by his arms while his arms were bound behind his back with a belt.12

For two weeks, the “debriefer” who had been flown in from CIA headquarters oversaw this unscripted interrogation. Finally, the debriefer himself, who the Inspector General notes “was not a trained interrogator and was not authorized to use EITs,” took over:

Sometime between 28 December 2002 and 1 January 2003, the debriefer used a semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information. After discussing this plan with [redacted] the debriefer entered the cell where Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri's head.13 On what was probably the same day, the debriefer used a power drill to frighten Al-Nashiri. With [redacted] consent, the debriefer entered the detainee's cell and revved the drill while the detainee stood naked and hooded. The debriefer did not touch Al-Nashiri with the power drill.”14

When Congress codified the Convention Against Torture an Other Cruel, Inhumane and Degrading Treatment or Punishment” in US law in 1994, it specifically cited four acts that would produce the kind of “severe mental pain and suffering” that would be characterized as torture:

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.15

The CIA had dropped “mock executions” from its proposed list of Enhanced Interrogation Techniques precisely because even the authors of the August 1, 2002 legal opinions couldn't argue that feigning an intention to kill a prisoner is ever permissible.16 Now the CIA was facing a situation where agents involved in its Rendition, Detention and Interrogation program had clearly committed a premeditated felony under US law.

Matthew Alexander 01/03/09: Should an organizational banner define our values and, hence, our conduct? Why would the CIA be permitted to use techniques that the U.S. military has clearly found to be both morally wrong and counterproductive? The U.S. Army Field Manual on interrogations, since at least 1949, has outlawed the abuse of prisoners for both moral and pragmatic reasons. Yet, even the U.S. military, in addition to the CIA, authorized and encouraged the use of enhanced interrogation techniques, aka, at a minimum, abuse of prisoners. The minimum standard for the military has been humane treatment, not torture. If our men and women in uniform were able to accomplish their missions without the use of enhanced interrogation techniques through the World Wars, Korea, Vietnam, and up to 9/11, what changed?

Some might argue that the enemy we face today is more capable in resisting interrogations and a need for harsh (read: torture and abuse) interrogations techniques were required. If Major Sherwood Moran, a Marine during World War II and our country's most famous interrogator, were alive today, he would choke. Consider Imperial Japanese soldiers during World War II -- suicide bombers, blind loyalty to their leader, brutal tactics, brainwashed, dedicated, formidable, aggressive, etc. Major Moran was successful interrogating captured Japanese soldiers because he used relationship building approaches along with his knowledge of Japanese culture (he had been a missionary in Japan for forty years before the start of the war). His axioms that he put to paper in his "Suggestions for Japanese Interpreters Based on Work in the Field" lays out the methods he used to success in interrogating the Japanese -- not one mention of using an enhanced interrogation technique.

Perhaps the most disturbing part of this chapter is not the actual techniques or the cover up of the unlawful use of torture and abuse, but the failure of leadership. Leaders failed to recognize that torture and abuse is inconsistent with American principles and counterproductive to preventing future terrorist attacks. This wisdom is plainly laid out in every version of the Army Field Manual since 1949, but leaders shouldn't need a Field Manual to know that torture and abuse goes against every fabric of what it means to be American.

***

In an August 31, 2009 interview with Der Spiegel magazine, John Helgerson said that one of the difficulties he encountered as he prepared the “Counterterrorism Detention and Interrogation Activities” Special Review was “the disorganization of the whole interrogation program. So much was being improvised in those early years in so many locations. There were no guidelines, no oversight, no training. How will you review a program handled differently in so many parts of the world?” “The agency went over bounds and outside the rules, that is for sure,” he added.17

Helgerson was an Africa specialist who had served primarily on the research and analytical side of the agency before being appointed Inspector General, an office Congress had fortified in 1989 following its perceived shortcomings in investigating the Iran Contra scandal. Like all but a handful of top CIA and administration officials, he knew nothing of the CIA's Rendition, Detention, and Interrogation program when he assumed the post in 2002; he learned of it in November, when James Pavitt, then the CIA's Deputy Director for Operations, informed him that the agency had sent a team to investigate the killing at the Salt Pit in Afghanistan. Pavitt returned to Helgerson in January 2003 to report “that Agency personnel had used unauthorized techniques with a detainee, ‘Abd Al-Rashin Al-Nashiri, at another foreign site,” and to request that the IG's office investigate.18

In probing the gun and drill incident, Helgerson soon discovered that mock executions had been staged several times after they had been specifically excluded from the list of approved interrogation techniques.

The debriefer who employed the handgun and power drill on Al-Nashiri [redacted] advised that those actions were predicated on a technique he had participated in [redacted]. The debriefer stated that when he was [redacted] between September and October 2002, [redacted] offered to fire a handgun outside the interrogation room while the debriefer was interviewing a detainee who was thought to be withholding information. [Redacted] staged the incident, which included screaming and yelling outside the cell by other CIA officers and [redacted] guards. When the guards moved the detainee from the interrogation room, they passed a guard who was dressed as a hooded detainee, lying motionless on the ground, and made to appear as if he had been shot to death.

The debriefer claimed he did not think he needed to report this incident because the [redacted] had openly discussed this plan [redacted] several days prior to and after the incident. When the debriefer was later [redacted] and believed he needed a non-traditional technique to induce the detainee to cooperate, he told [redacted] he wanted to wave a handgun in front of the detainee to scare him. The debriefer said he did not believe he was required to notify Headquarters of this technique, citing the earlier, unreported mock execution [redacted].

A senior operations officer [redacted] recounted that around September 2002 [redacted] heard that the debriefer had staged a mock execution. [Redacted] was not present but understood it went badly; it was transparently a ruse and no benefit was derived from it. [Redacted] observed that there is a need to be creative as long as it is not considered torture. [Redacted] stated that if such a proposal were made now, it would involve a great deal of consultation. It would begin with [redacted] management and would include CTC/Legal, [redacted] and the CTC [redacted].

The [redacted] admitted staging a “mock execution” in the first days that [redacted] was open. According to the [redacted] the technique was his idea but was not effective because it came across as being staged. It was based on the concept, from SERE school, of showing something that looks real, but is not. The [redacted] recalled that a particular CTC interrogator later told him about employing the mock execution technique. The [redacted] did not know when this incident occurred or if it was successful. He viewed this technique as ineffective because it was not believable.

Four [redacted] who were interviewed admitted to either participating in one of the above-described incidents or hearing about them. [Redacted] described staging a mock execution of a detainee. Reportedly, a detainee who witnessed the “body” in the aftermath of the ruse “sang like a bird.”

[Redacted] revealed that approximately four days before his interview with OIG, the [redacted] stated he had conducted a mock execution [redacted] in October or November 2002. Reportedly, the firearm was discharged outside of the building, and it was done because the detainee reportedly possessed critical threat information. [Redacted] stated that he has not heard of a similar incident occurring [redacted] since then.19

It is clear from these accounts that there was a viral quality to the spread of interrogation techniques in 2002—and that the germ of the idea of what was permissible was the general understanding that the simulated torture methods employed in SERE training were now in play for US interrogators. Other techniques that “caused concern because DoJ had not specifically approved them” included many of those to which Al-Nashiri had been subjected, including one incident in which the debriefer “threatened Al-Nashiri by saying that if he did not talk, ‘We could get your mother in here,' and ‘We can bring your family in here.' As Helgerson explained:

The debriefer reportedly wanted Al-Nashiri to infer, for psychological reasons, that the debriefer might be [redacted] intelligence officer based on his Arabic dialect, and that Al-Nashiri was in [redacted] custody because it was widely believed in Middle East circles that [redacted] interrogation technique involves sexually abusing female relatives in front of the detainee.20

In all, Helgerson concluded, “Agency personnel reported a range of improvised actions that interrogators and debriefers reportedly used at the time to assist in obtaining information in detainees. The extent of these actions is illustrative of the consequences of the lack of clear guidance at the time and the Agency's insufficient attention to interrogations in [redacted].21

If Helgerson had limited his criticism to this—to the poor training and oversight of CIA agents in the program's early days—his work would have caused less consternation within the agency; after all, the CIA had been conscious from the outset that its interrogators were walking a fine line, and wanted to make sure the administration explicitly authorized its abusive methods and that its agents knew the rules. Indeed, on January 28, 2003, days after Helgerson began his investigation, CIA Director George Tenet signed a three-page order entitled “Guidelines on Confinement Conditions for CIA Detainees” that formalized the requirements for CIA interrogations. The Guidelines instruct interrogators that “Unless otherwise approved by Headquarters, CIA officers may use only Permissible Interrogation Techniques. Permissible Interrogation Techniques consist of both (a) Standard Techniques and (b) Enhanced Techniques,” and that “in each interrogation session in which an Enhanced Technique is employed, a contemporaneous record shall be created setting forth the nature and duration of each such technique employed, the identities of those present [redacted].” Interrogators were required to sign the order, acknowledging that they had read it and would comply with its terms.

But in a note explaining the genesis of his Special Review, Helgerson cited not only the request from Headquarters to investigate specific uses of unauthorized techniques, but also the fact that he had “received information that some employees were concerned that certain covert Agency activities at an overseas detention facility might involve violations of human rights.”22 As he explained in the Der Spiegel interview after leaving the CIA in 2009,

We wanted to respond to expressions of concern by some agency employees involved with the program who were uneasy about it. Actually there were a number of individuals who expressed to me their concern about various aspects of the program. They had the feeling that what the agency was doing was fundamentally inconsistent with past US government policy and American values. It was something new and unprecedented for the agency. A critical legal opinion was missing which I believed was needed to protect agency employees and detainees. It was then my own initiative to undertake this review. And in the process we found things that we did not expect to find.23

In other words, Helgerson was determined to probe not just the aberrations, but also the officially sanctioned interrogation program. As a quasi-independent watchdog within the agency, the CIA Inspector General has access by law to all CIA employees and files—which meant Helgerson would be reviewing all the records of the Abu Zubaydah and Al-Nashiri interrogations, including the videotapes. And because CIA Inspectors General are required to report the results of investigations and reviews to Congressional overseers, others, too, would soon know that these records existed.

On February 5, 2003, CIA General Counsel Scott Muller briefed Porter Goss, who was then the Chairman of the House Intelligence Committee, and Jane Harman, the ranking Democrat on the committee, on the CIA's Rendition, Detention, and Interrogation program and the use of enhanced interrogation techniques in particular. At that meeting, Muller revealed that the CIA had hundreds of hours of videotapes of the Thai black site interrogations which the Agency planned to destroy as soon as Helgerson completed his review. Five days later, Harman wrote Muller:

Dear Mr. Muller:

Last week's briefing brought home to me the difficult challenges faced by the Central Intelligence Agency in the current threat environment. I realize we are at a time when the balance between security and liberty must be constantly evaluated and recalibrated in order to protect our nation and its people from catastrophic terrorist attack and I thus appreciate the obvious effort that you and your Office have made to address the tough questions. At the briefing you assured us that the [redacted] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.

It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions. I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.

I look forward to your response.24

Marcy Wheeler 12/10/09: It might be useful to discuss the requirements for notice to Congress under National Security Act. By asking if Bush had given policy approval, she was effectively asking for a Finding.

Alarmed, CIA attorneys drafted an answer and carried it to a meeting at the White House on or before February 22, 2003 that was called to address “the CIA's response to a congressional inquiry.”25 Following that meeting, General Counsel Scott Muller sent a reply to Harman that ignored her admonition about the videotapes and brushed off her question about how the interrogation techniques accord with American values:

Thank you for your letter of 10 February following up on the briefing we gave you and Congressman Goss on 5 February concerning the Central Intelligence Agency's limited use of the handful of specially approved interrogation techniques we described. As we informed both you and the leadership of the Intelligence Committees last September, a number of Executive Branch lawyers including lawyers from the Department of Justice participated in the determination that, in the appropriate circumstances, use of these techniques is fully consistent with US law. While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch.26

***

Before Helgerson could watch the tapes—a February request for copies was denied and he, too, would be required to travel to Thailand—the U.S. had captured Khaled Shaikh Mohammed and waterboarded him 183 times during a 25-day interrogation in a new CIA black site, this one in Europe.

Mohammed was seized on March 1, 2003 in a raid by Pakistani intelligence and CIA operatives in Rawalpindi, Pakistan and transferred immediately to Afghanistan. He was held there for three or four days, shackled naked to the ceiling and doused routinely with cold water between interrogation sessions. On or around March 6, he was hooded and flown to another country where, as he told the International Committee of the Red Cross when he was eventually interviewed in Guantanamo, “there was snow on the ground” and everybody “was wearing black, with masks and army boots, like Planet-X people.” “I think the country was Poland,” he told the ICRC. “I think this because on one occasion a water bottle was brought to me without the label removed. It had an email address ending in ‘.pl'. The central-heating system was an old style one that I would expect only to see in countries of the former communist system.”27

At the black site, the interrogators told Mohammed they had been given “the green-light from Washington to give him ‘a hard time,'” promising that he would be “brought to the verge of death and back again.”28 He was kept naked for nearly a month, wrists shackled to the ceiling and ankles to the floor, in a wooden-walled room equipped with closed-circuit cameras where he was monitored 24 hours a day by a doctor, psychologist and interrogator. For interrogations, he was taken to another room where, with a doctor present, he was walled and hosed down with cold water before male and female interrogators.29 The doctor also presided over the waterboarding, “standing out of sight behind the head of the bed,” “But I saw him when he came to fix a clip to my finger which was connected to a machine,” Mohammed recalled. “I think it was to measure my pulse and oxygen content in my blood. So they could take me to the breaking point.”30

The process was repeated day in and day out, the punishment growing in intensity:

The harshest period of the interrogation was just prior to the end of the first month. The beatings became worse and I had cold water directed at me from a hose-pipe by guards while I was still in my cell. The worst day was when I was beaten for about half an hour by one of the interrogators. My head was banged against the wall so hard that it started to bleed. Cold water was poured over my head. This was then repeated with other interrogators. Finally I was taken for a session of waterboarding. The torture on that day was finally stopped by the intervention of the doctor. I was allowed to sleep for about one hour and then put back in my cell standing with my hands shackled above my head….

During the harshest period of my interrogation I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop. I later told the interrogators that their methods were stupid and counterproductive. I'm sure that the false information I was forced to invent in order to make the ill-treatment stop wasted a lot of their time and led to several false red-alerts being placed in the US.31

This would be the last time the U.S. waterboarded a detainee. Helgerson flew to the black site in Thailand some six weeks later, in May, to review the videotapes of the Abu Zubaydah interrogation and the first two weeks of the Al-Nashiri interrogation. Although he found that 15 of the 92 tapes that the CIA lawyer had reviewed in November were now blank or broken and 21 hours of interrogations described in the logs and cables were missing from the video record, including two waterboarding sessions, what he saw was more than enough for him to reach some damning conclusions.

Helgerson immediately saw that the antiseptic descriptions of the enhanced interrogation techniques in the OLC memos bore little resemblance to the techniques in actual practice. There was a critical difference between waterboarding as described in the August 1, 2002 “Interrogation of an al Qaeda Operative” memo32 and the way it was being applied by Mitchell's interrogators. “The difference was in the manner in which the detainee's breathing was obstructed,” he noted. “At the SERE school and in the DoJ opinion, the subject's airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator [redacted] continuously applied large volumes of water to a cloth that covered the detainee's mouth and nose.”33

“One of the psychologists acknowledged that the Agency's use of the technique differed from that used in SERE training and explained that the Agency's technique is different because it is ‘for real' and is more poignant and convincing,” Helgerson reported.34 The CIA was employing torture as opposed to simulated torture, in other words.

Helgerson was shocked to discover that the CIA's own Office of Medical Services “was neither consulted nor involved in the initial analysis of the risk and benefits of EITs,” and of waterboarding in particular:

In retrospect, OMS contends that the reported sophistication of the preliminary EIT review was exaggerated, at least as it related to the waterboard, and that the power of this EIT was appreciably exaggerated…Furthermore, OMS contends that the expertise of the SERE psychologist/interrogators on the waterboard was probably misrepresented at the time, as the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which is was used by the psychologist/interrogators was either efficacious or medically safe.35

In fact, the administration had not only accepted Mitchell and Jessen's fanciful assurances on the proposed methods without consulting the agency's medical experts, they had outright ignored warnings from Mitchell and Jessen's former employer, the military's Joint Personnel Recovery Agency, about their effectiveness. An attachment to a 2002 memo from JPRA had cautioned:

The requirement to obtain information from an uncooperative source as quickly as possible—in time to prevent, for example, an impending terrorist attack that could result in loss of life—has been forwarded as a compelling argument for the use of torture. Conceptually, proponents envision the application of torture as a means to expedite the exploitation process. In essence, physical and/or psychological duress are viewed as an alternative to the more time-consuming conventional interrogation process. The error inherent in this line of thinking is the assumption that, through torture, the interrogator can extract reliable and accurate intelligence. History and a consideration of human behavior would appear to refute this assumption. (NOTE: The application of physical and or psychological duress will likely result in physical compliance. Additionally, prisoners may answer and/or comply as a result of threats of torture. However, the reliability and accuracy information must be questioned.)…

In numerous cases, interrogation has been used as a tool of mass intimidation by oppressive regimes. Often, the interrogators operate from the assumption (often incorrect) that a prisoner possesses information of interest. When the prisoner is not forthcoming, physical and psychological pressures are increased. Eventually, the prisoner will provide answers that they feel the interrogator is seeking. In this instance, the information is neither reliable nor accurate (note: A critical element of the interrogation process is to assess the prisoner's knowledgeability. A reasoned assessment of what the prisoner should know, based on experience, training, position, and access should drive the questioning process.)36

Marcy Wheeler 12/10/09: Note that the Senate Armed Services Committee report (http://www.fas.org/irp/congress/2008_hr/treatment.pdf) reproduces another document that was included along with this one as an attachment to the July 26, 2002 JPRA memo; this one, which is on pages 207-210 of the SASC report (pdf pages 211-214), has a list of SERE techniques that includes waterboarding, as used, and things like smoke and dousing.

This is exactly what Helgerson saw when he watched the Abu Zubaydah and Al-Nashiri tapes. “The Agency lacked adequate linguists or subject matter experts and had very little hard knowledge of what particular al-Qaeda leaders—who later became detainees—knew,” he concluded. “This lack of knowledge led analysts to speculate about what a detainee ‘should know'….When a detainee did not respond to a question posed to him, the assumption at Headquarters was that the detainee was holding back and knew more; consequently, Headquarters recommended resumption of EITs.”37

Furthermore, Helgerson saw that headquarters and the White House were willing to bend or ignore even their own self-imposed rules. The memos permitted the repetition of techniques, for example, but noted agency assurances “that repetition will not be substantial because the techniques generally lose their effectiveness after several repetitions”; yet Abu Zubaydah was waterboarded 83 times, and Khaled Shaikh Mohammed was waterboarded 183 times and subjected to sleep deprivation to the known limit of human endurance. Nevertheless, Scott Muller, the CIA's General Counsel, assured Helgerson that the Attorney General considered even these flagrant excesses “well within the scope of the DoJ opinion and the authority given to the CIA by that opinion.”38

Marcy Wheeler 12/10/09: You might note there was a pretty big dispute about this once the IG report came out.

Helgerson disagreed. Not only did the waterboarding in practice, its risks versus results and its excessive, zealous, and unnecessary use, “[bring] into question the continued applicability of the DoJ opinion”; “the fact that precautions have been taken to provide on-site medical oversight in the use of all EITs is evidence that their use poses risks,” he observed.39 As for Yoo's August 1, 2002 memos, the Inspector General observed that though they purport to assess whether EIT's constitute torture, they don't address the separate question of whether the application of standard or enhanced techniques by Agency officers is consistent with the undertaking, accepted conditionally by the United States regarding Article 16 of the Torture Convention, to prevent ‘cruel, inhuman, or degrading treatment or punishment.'”40 Congress, in ratifying the Convention Against Torture, had interpreted cruel, inhuman, or degrading treatment or punishment to mean treatment that violates the Eighth Amendment prohibition on cruel and unusual punishment or Fifth and Fourteenth Amendment bars against conduct that “shocks the conscience.”

Filling this dangerous gap in the legal shield was a document entitled “Legal Principles Applicable to CIA Detention and Interrogation of Captured al-Qa'ida Personnel.” This series of bullet points, which Muller sent to John Yoo on April 28 2003 under the note “I would like to discuss this with you as soon as you get a chance,” included two clearly aimed at protecting black site interrogators:

· CIA interrogations of foreign nationals are not within the “special maritime or territorial jurisdiction” of the United States where the interrogation takes place on foreign territory in buildings that are not owned or leased by or under the legal jurisdiction of the US Government.

· The use by CIA of the following techniques (and of comparable, approved techniques) in the interrogation of al-Qa'ida detainees is lawful, and violates neither Federal criminal law nor the Fifth, Eighth, or Fourteenth Amendments, in circumstances where the interrogators do not have the specific intent to cause the detainee to undergo severe physical or mental pain or suffering: isolation, sleep deprivation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainee), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainee's hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board.41

Helgerson knew the latter was not true. After seeing the tapes, he was convinced that CIA interrogators, even when they were adhering absolutely to approved techniques and procedures, had at the minimum violated the ban on cruel, inhuman and degrading treatment.

On June 26, 2003, a month after Helgerson traveled to the Thai black site, President Bush released a statement marking the annual United Nations International Day in Support of Victims of Torture. Helgerson included this excerpt in his report:

The United States declares its strong solidarity with torture victims across the world. Torture anywhere is an affront to human dignity everywhere. We are committed to building a world where human rights are respected and protected by the rule of law.

Freedom from torture is an inalienable human right….Yet torture continues to be practiced around the world by rogue regimes whose cruel methods match their determination to crush the human spirit….

Notorious human rights abusers…have sought to shield their abuses from the eyes of the world by staging elaborate deceptions and denying access to international human rights monitors….

The United States is committed to the worldwide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture an din undertaking to prevent other cruel and unusual punishment.42

Coming in the midst of Helgerson's review, the statement rattled the agency. Muller reportedly called the White House, worried about the morale and potential liability of CIA interrogators who had been following the president's program, and George Tenet met with the Principles to request new written approval for EITs that would plug the legal holes Helgerson had spotted. Sometime in July, the White House issued a still-classified memo that supposedly gave the agency its reinforced shield.43 Then, Helgerson reports,

On 29 July 2003, the DCI and the General Counsel provided a detailed briefing to selected NSC Principals on CIA's detention and interrogation efforts involving “high value detainees,” to include the expanded use of EITs. According to a Memorandum for the Record prepared by the General Counsel following that meeting, the Attorney General confirmed that DoJ approved the expanded use of various EIT's including multiple applications of the waterboard. The General Counsel said he believes everyone in attendance was aware of exactly what CIA was doing with respect to detention and interrogation, and approved of the effort.44

At the time, dozens of High Value Detainees had disappeared into CIA black sites, and floating around the agency was a Mitchell and Jessen business plan that presented black site interrogations as a project with a bright, booming future. One of the few unredacted pages reads:

2.2 Anticipated Future Demand

Results from the first Al Qaeda HVT interrogated using the aforementioned enhanced techniques, Abu Zubayda, have been outstanding. Abu Zubayda reached a satisfactory level of compliance in August 2002. Since April, the interrogation team has produced [redacted] actionable intelligence disseminations from Abu Zubaydah. This has ultimately led to some instances of the US Government being able to neutralize Al Qaeda capabilities worldwide before there was an opportunity for those capabilities to engage in operations harmful to the United States. Because of this, US Government decision makers have a positive view o the program, and there is pressure to increase HVT Interrogation Program capabilities in the shortest time possible.

As the success of the program and of other counter Al Qaeda activities continues to lead to the capture of additional HVT candidates, it can be reasonably expected that intelligence disseminations will lead to even more HVT candidate captures and the likewise increase in demand for more HVT program services.

2.3 Operational Assumptions

Required resources will be approved and available for the HVT Interrogation Program as depicted in Section 4. Such resources are critical to the success of the Program's ability to meet identified customer requirements.

The program will provide for the increase in demand of fully qualified [redacted] psychological services by carefully increasing the number of interrogation psychologists from a limited pool of appropriate candidates, maintaining expertise through an aggressive training and mentoring program with well documented oversight of all activities to ensure quality control.45

Marcy Wheeler 12/10/09: The following section, which is really critical, is confusing as is. Ideally, it would capture the mounting tension on several fronts:

• The impending election

• The brewing scandal at Abu Ghraib (note, DOD knew it was coming in January, and spent a good deal of time trying to convince 60 Minutes not to publish

• The other leaking of memos and whatnot

• The Hamdi and Padilla cases (along with the Administration apparently not being fully forthcoming with Solicitor General's office)

• The 9/11 Commission's attempts to get more detainee information, and the Administration's worries about their report

• Goldsmith's withdrawal, first, of the March 2003 DOD memo—he was prepping to withdraw Bybee One the whole time the IG Report was pending

• The IG Report

• The capture of new detainees and the (possibly trumped) election-eve attack which drove the tension around the torture of Ghailani, Ghul, and others, leading to the 2004 approvals

It'd probably be most readable if you had an introduction to the entire first half of 2004 to talk about all of these currents, then deal with each separately, then show how it all came at once in May to June.

***

For months, the question of what to do with the videotapes seemed settled. A 13-page cable discussing the disposition of the tapes was sent just after the July 28, 2003 Principles meeting, and they had remained since then locked quietly in the vault in the black site in Thailand.46

Then, on April 28, 2004, CBS 60 Minutes II broadcast the first photographs of prisoner abuse at Abu Ghraib prison in Iraq. Just over a week later, on May 7, 2004, Helgerson circulated his completed, classified review of the CIA's RDI program within the CIA and the White House.

Any sense of security the CIA had derived from the 2003 legal assurances vanished. The visceral power of the pictures and their instant, global transmission drove home the particular dangers visual images pose, and Helgerson's report was just a hint of how the public, confronted not with candid snapshots by soldiers on the night shift but with film of hundreds of hours of Washington-directed torture, would react. As more photos surfaced in subsequent days in The New Yorker and The Washington Post , the CIA took the question of the tapes back to the White House.

On May 24, 2004, Scott Muller met with a group of lawyers that included Alberto Gonzales, David Addington, and NSA legal advisor John Bellinger about the photo scandal and the IG's report. Muller told the group that the CIA wanted to destroy the tapes, and meeting notes reportedly record that Bellinger advised against it. There are conflicting reports on how the others reacted. One New York Times account held that “one person familiar with the discussion said that in light of concerns raised in the inspector general's report that agency officers would be legally liable for harsh interrogations, there was a view at the time among some administration lawyers that the tapes should be preserved.”47 Another reported that “the emerging picture of White House involvement is more complex,” and that “one former senior intelligence official with direct knowledge of the matter said there had been ‘vigorous sentiment' among some top White House officials to destroy the tapes.”48 Jane Mayer, who gave the first account of the meeting in The Dark Side, wrote that Addington, aware they were discussing the possible destruction of evidence, was angry that the group was even being consulted on the question. One participant told her his attitude “was along the lines of ‘Don't bring this into the White House.'”49

Meanwhile, the White House's Office of Legal Counsel was scrambling to contain the potential damage of Helgerson's report. On the same day the attorneys discussed the tapes, Jack Goldsmith sent a letter to Helgerson:

I understand that your office has been working on a report that, in part, discusses advice provided to CIA by my Office concerning interrogations in the war on terrorism. Scott Muller, the General Counsel of the CIA, recently provided me with a copy of the report and I would appreciate it if I could have time to review the description of my Office's advice and provide comments before the report is sent to Congress.50

Goldsmith had taken over as head of the OLC in October 2003, replacing Jay Bybee, who had resigned earlier in the year, and from the start he had misgivings about the OLC legal advice. He challenged standing positions on the applicability of the Geneva conventions and was deeply uneasy with the August 1, 2002 torture memos, which he reportedly learned of two weeks after taking office. On May 27, 2004, he wrote a letter to Muller noting the IG's report “has raised concerns about certain aspects of interrogations in practice.” He concluded

In light of the assertions in the Inspector General's Report, and the factual assumptions underlying our advice, we strongly recommend that any use of [the waterboard] remain suspended until we have had a more thorough opportunity to review the Report and the factual assertions in it. We recommend that with respect to the use of the other nine techniques, you review the steps you have already taken to ensure that in actual practice any use of those techniques adheres closely to the assumptions and limitations stated in our opinion of August 2002. Finally, the Report also includes information concerning interrogations that are not part of the enhanced interrogation techniques program. As you know, we have not provided advice on practices described in those portions of the Report.51

A little over a week later, on June 8, 2004, the Washington Post ran an article by Dana Priest and R. Jeffrey Smith titled “Memo Offered Justification for the Use of Torture,” which began, “In August 2002, the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad ‘may be justified,' and that international laws against torture ‘may be unconstitutional if applied to interrogations' conducted in President Bush's war on terrorism, according to a newly obtained memo.” It went on to describe the “Standards of Conduct for Interrogation” memo in detail.52 A week later, the newspaper posted a copy of the full memo online. Two days later, Goldsmith informed Attorney General John Ashcroft that he intended to withdraw the Yoo memo and planned to resign.

Once again, the agency sought additional legal cover. Tenet, who had announced his own resignation at the beginning of the month, returned to the White House to appeal for a new memo, and Scott Muller met with Bellinger and Deputy Asistant Attorney General James Comey on July 2, a meeting he summarized afterwards in a memo to Bellinger:

Subsequent to today's meeting we have had further discussions that clarified the extent of today's approval of certain techniques. The authorized techniques are those previously approved for use with Abu Zubaydah (with the exception of the waterboard) and the 24 approved by the Secretary of Defense on 16 April 2003 for use by the Department of Defense. I have relayed this information to the CIA's Counterterrorism Center.53

Finally, after a meeting in which the Principals echoed the need for a new memo and a July 20, 2004 written request from the Agency for legal advice, the CIA reportedly received yet another still-secret legal shield that month.54

Marcy Wheeler 12/10/09: The implications of the memo Warrick refers to are slightly different than an OLC approval. Tenet was reportedly looking for policy approval, as opposed to legal approval (which is why Harman's inquiry about whether Bush had signed off was so important) — some kind of written document proving the White House had bought off on the policy, in addition to DOJ giving its legal okay.

Also, two of the documents that went into this discussion appear to be these:

• A June 4 Tenet request, issued the day after he resigned—note too that there are at least two false pieces of information in the document, when the approval was first given and the briefing to Congress): http://www.aclu.org/torturefoia/released/052708/052708_Other_3.pdf

• And this one, which appears to be Condi's first response to Tenet (she puts him off and says go to DOJ); this is from June 11: http://www.aclu.org/files/assets/06112004_memotociadirector_0.pdf

Also, while it's tangential, on June 29, 2004, John McLaughlin told the 9/11 Commission that CIA had handed over all documents related to detainee interrogation, after a long battle over detainee materials. http://www.fas.org/irp/news/2007/12/zelikow121307.pdf

By then, Helgerson had briefed Pat Roberts and Jay Rockefeller, the Chairman and ranking Democrat of the Senate Intelligence Committee, and Porter Goss and Jane Harman on the House side, on his report. Though a Bush reelection strategy calculated to keep Democrats on the defensive about national security managed to suppress Congressional anxieties over detainee abuse through November, Rockefeller began pushing the agency on Helgerson's findings. In May 2005, he wrote Helgerson formally requesting documents cited in the report, including those relating to the General Counsel's 2002 review of the videotapes.

Marcy Wheeler 12/10/09: In their briefing on the IG report in July 2004, CIA and Roberts/Rockefeller specifically discussed the Convention Against Torture: http://intelligence.senate.gov/pdfs/olcopinion.pdf

It appears clear from later issues that Rockefeller was pushing the Agency on whether the program complied with CAT.

It would be useful to deal with the early 2005 events in a similar way to the way I’ve suggested dealing with the spring 2004 events. There are: the ousting of Daniel Levin and his replacement with Bradbury, the 2005 drafting of the Bradbury memos, along with Comey’s objections (and proof that Addington and others were pressuring Bradbury, not to mention making his job contingent on it), the questions in briefings (as well as McCarthy’s accusation that some CIA person lied in briefings), and—very importantly—the debates around what became the Detainee Treatment Act. Remember that Bradbury was already working out a way for torture to be possible even if Congress passed something strengthening CAT, there was a trip to Gitmo that summer for Graham and McCain, Cheney and Goss briefed McCain personally on October 20, and then the Administration started working around McCain to force him to compromise on DTA, basically by leaving “following orders” as a defense. Add in the Brinkema dates (she asks for video on November 3, they tell her they don’t have any on November 14 after they’ve destroyed them). And like the May-June 2004 period, the November 2005 one is one where the Courts are getting nosy, where Congress is pressing for DTA, where CIA/DOJ is lying to Congress about the program again, where the press has a bunch of leaks.

It also would be useful to trace the continuity of Rodriguez and Goss through all of this period: Goss in first Congressional briefing that was likely given by Rodriguez; Goss and Rodriguez both come in in the wake of the Tenet/McLaughlin/Muller resignations after the IG Report, and both involved in the legal discussions to get rid of the tapes. Also, the tape was “rediscovered” in 2007 within two weeks of the time Rodriquez retired. It’d be really useful to trace the continuity of John Rizzo’s involvement, as well.

He wasn't the only one now on the trail of the tapes. That same month a federal judge presiding over the trial of Zacarias Moussaoui, who stood accused of planning to act as the “20 th hijacker” in the 9/11 attacks, ordered the Justice Department to disclose whether the interrogation of Abu Zubaydah and others had been recorded. With the circle of those to whom the videotapes might eventually be produced expanding, pressure to destroy them was again on the rise. In July, Porter Goss, who had known of the debate over the tapes since he was briefed with Jane Harman in 2003 and who had replaced George Tenet as Director of the CIA in September, brought the problem of the tapes to John Negroponte, the newly installed Director of National Intelligence. Negroponte emphatically advised against destroying the tapes. A CIA attorney rendered a legal opinion on Negroponte's advice in an email to his “client” on July 28, 2005.

Again the tapes survived, and they survived again in September, when Rockefeller wrote to protest the CIA's refusal to respond to his request and to renew his demand for documents about the tapes.

Then, on November 2, 2005, The Washington Post published a front-page, 2,700-word Dana Priest report that exposed the network of secret CIA prisons in Afghanistan, Thailand, Guantanamo, and Eastern Europe. “More than 100 suspected terrorists have been sent by the CIA into the covert system,” the piece revealed. “The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or otherwise verify their well-being.”55

Less than a week later, still reeling from this leak, the agency learned that The New York Times was preparing to print a story that publicly revealed the existence of Helgerson's report and summarized its damning conclusions. “A classified report issued last year by the Central Intelligence Agency's inspector general warned that interrogation procedures approved by the CIA after the September 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say,” Douglas Jehl's piece would begin.56

On November 8, 2005, the day before this story ran, two cables were sent from the field to headquarters requesting permission to destroy the 92 videotapes. On November 9, someone at the CIA sent a 14-page email with the subject “Request approval to destroy field videotapes” that included three cables relating to the decision on their destruction. That same day, as the world was first learning of the report by the last person to view the tapes, a cable was sent to CIA headquarters confirming they had been destroyed.57

***

In the midst of the November 2005 revelations of the black sites and the IG's investigation, Judge Leonie Brinkema, the presiding judge in the Zacarias Moussaoui trial, ordered the CIA to disclose whether the CIA had videotaped any interrogations that might have a bearing on Moussaoui's case, including the interrogation of Abu Zubaydah. It was her second such order; the first, in May 2003, had produced a sworn CIA declaration that no tapes existed. On November 14, 2005, five days after the tapes were destroyed, the CIA again swore it had no videotapes.

Two years later, with Moussaoui's conviction up on appeal, federal prosecutors finally told the court that there were videotapes—and not, mysteriously, in the past tense, but rather two interrogation tapes the CIA had somehow discovered in September and October. The US attorneys told the court they had personally reviewed the tapes and found them identical to a written transcript and related cables they were submitting to the court; all showed that the tapes had no relevance to Moussaoui's case, they insisted.

A month and a half later, on December, 6, 2007, CIA employees received an email from Michael Hayden, who had succeeded Porter Goss in 2006, headed “Message from Director: Taping of Early Detainee Interrogations”:

The press has learned that back in 2002, during the initial stage of our terrorist detention program, CIA videotaped interrogations, and destroyed the tapes in 2005. I understand that the Agency did so only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative, or judicial inquiries—including the trial of Zacarias Moussaoui. The decision to destroy the tapes was made within the CIA itself. The leaders of our oversight committees were informed of the videos years ago and of the Agency's intention to dispose of the material. Our oversight committees also have been told that the videos were, in fact, destroyed.

If past public commentary on the Agency's detention program is any guide, we may see misinterpretations of the facts in the days ahead. With that in mind, I want you to have some background now.

CIA's terrorist detention and interrogation program began after the capture of Abu Zubaydah in March 2002. Zubaydah, who had extensive knowledge of al-Qa'ida personnel and operations, had been seriously wounded in a firefight. When President Bush officially acknowledged in September 2006 the existence of CIA's counter-terror initiative, he talked about Zubaydah, noting that this terrorist survived solely because of medical treatment arranged by CIA. Under normal questioning, Zubaydah became defiant and evasive. It was clear, in the President's words, that "Zubaydah had more information that could save innocent lives, but he stopped talking."

That made imperative the use of other means to obtain the information -- means that were lawful, safe, and effective. To meet that need, CIA designed specific, appropriate interrogation procedures. Before they were used, they were reviewed and approved by the Department of Justice and by other elements of the Executive Branch. Even with the great care taken and detailed preparations made, the fact remains that this effort was new, and the Agency was determined that it proceed in accord with established legal and policy guidelines. So, on its own, CIA began to videotape interrogations.

The tapes were meant chiefly as an additional, internal check on the program in its early stages. At one point, it was thought the tapes could serve as a backstop to guarantee that other methods of documenting the interrogations -- and the crucial information they produced -- were accurate and complete. The Agency soon determined that its documentary reporting was full and exacting, removing any need for tapes. Indeed, videotaping stopped in 2002.

As part of the rigorous review that has defined the detention program, the Office of General Counsel examined the tapes and determined that they showed lawful methods of questioning. The Office of Inspector General also examined the tapes in 2003 as part of its look at the Agency's detention and interrogation practices. Beyond their lack of intelligence value -- as the interrogation sessions had already been exhaustively detailed in written channels -- and the absence of any legal or internal reason to keep them, the tapes posed a serious security risk. Were they ever to leak, they would permit identification of your CIA colleagues who had served in the program, exposing them and their families to retaliation from al-Qa'ida and its sympathizers.

These decisions were made years ago. But it is my responsibility, as Director today, to explain to you what was done, and why. What matters here is that it was done in line with the law. Over the course of its life, the Agency's interrogation program has been of great value to our country. It has helped disrupt terrorist operations and save lives. It was built on a solid foundation of legal review. It has been conducted with careful supervision. If the story of these tapes is told fairly, it will underscore those facts.

—Mike Hayden

The next day, The New York Times ran a Mark Mazetti story titled “C.I.A. Destroyed Two Tapes Showing Interrogations.” Mazetti reported that Jose Rodriguez, Jr., who at the time directed the CIA's clandestine services, had ordered the tapes' destruction. Follow-up reporting by Mazetti and Scott Shane over the next three weeks established that Rodriguez had received legal advice from CIA attorneys Steven Hermes and Robert Eatinger sanctioning the action and that conversations about the tapes' fate over the years had included the top lawyers in the White House.

Hayden's assertion that the videotapes were “not relevant to any internal, legislative, or judicial inquiries” provoked a storm of protest. When Jane Harman warned the agency not to destroy the tapes in 2003, the chief legal question was whether doing so would violate the Federal Records Act; by the time they were destroyed, the number of requests for information that would include the videotapes, and the CIA's failure to acknowledge their existence or respond to these requests, meant the potential crimes had multiplied. Harman, who now pressed the CIA to declassify her correspondence counseling against the destruction, told the Times , “How in the world could the CIA claim that these tapes were not relevant to a legislative committee?”58 Thomas Kean and Lee Hamilton, the Chairman and Vice Chairman of the 9/11 Commission, published an op-ed entitled “Stonewalled by the CIA,” asserting that the agency “failed to respond to our lawful requests for information about the 9/11 plot. Those who knew about the videotapes—and did not tell us about them—obstructed our investigation.”59 Judge Brinkema had been lied to and her orders defied twice. A September 2004 order by another federal judge overseeing the ACLU's Freedom of Information Act lawsuit, which instructed the CIA, Defense Department, and a number of other governmental agencies “to produce or identify all records related to the treatment of detainees apprehended after September 1, 2007 and held in US custody abroad,” had been similarly, and repeatedly, defied.

On January 2, 2008, Attorney General Michael Mukasey announced that, “Following a preliminary inquiry into the destruction by CIA personnel of videotapes of detainee interrogations, the Department's National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter.” Mukasey appointed John Durham, a US Attorney based in Connecticut, to conduct the investigation with the FBI. Since then, Durham has subpoenaed a number of CIA officials and employees to testify before a federal grand jury in Virginia.

Meanwhile, under a Contempt of Court motion filed shortly after the destruction of the tapes was revealed, the ACLU has been pursuing all written records that describe or refer to the interrogations depicted in the tapes, including the interrogation logs and the back-and-forth cable traffic between the Thai black site and CIA headquarters. The CIA tried to argue that the tapes and related materials did not fall under the ACLU's FOIA request, but on August 20, 2008, Judge Alvin Hellerstein ordered the agency to produce a list describing each of the destroyed records; a list of any summaries, transcripts, or memoranda regarding the records, and of any reconstruction of the records' contents; and identification of any eyewitnesses who may have viewed the videotapes or retained custody of the videotapes before their destruction.”60 Judge Hellerstein twice deferred his order in consideration of Durham's criminal probe. When the second stay expired at the end of February, government attorneys wrote to Hellerstein:

With the termination of the stay, the CIA is now gathering information and records responsive to the Court's order….In the meantime, the CIA can now identify the number of videotapes that were destroyed, which is information implicated by Point 1 of the August 20, 2008 Order. Ninety-two videotapes were destroyed. This information is included in the CIA Office of the Inspector General's Special Review Report, a redacted version of which was previously produced to the Plaintiffs. The CIA will unredact this information from the report and produce it to the Plaintiffs.”61

The government subsequently produced several lists of cables and other key documents, but continued to withhold the documents themselves on two grounds: first, that they fall under an exemption to the Freedom of Information Act requests for materials that protect “intelligence sources and methods”; and second, that releasing the descriptions of the interrogations contained in the documents could serve as enemy propaganda—an argument the government is also advancing in a separate portion of the same FOIA action to block the release of more photographs of prisoner abuse in Iraq and Afghanistan. The ACLU countered that under the law, FOIA exemptions cannot be used to hide illegal acts or save government agencies from embarrassment; the CIA should no longer be allowed to hide the records because President Obama has banned the enhanced interrogation techniques, because the techniques are no longer secret, and because they violate the Convention Against Torture and are therefore outside the mandate of the CIA. As for propaganda, the ACLU pointed out that no court has ever allowed the withholding of purely textual description of government misconduct on the argument that the words would inflame our enemies.

In a hearing on September 30, 2009 in federal district court in New York, after reading several of the cables in a secret briefing in his chambers, Judge Hellerstein ruled that he would not address the question of whether, by committing torture, the CIA had forfeited its right to exempt the documents from the FOIA request. “I am not able to comment, particularly in the context of FOIA, on the nature of legality or illegality in the development of intelligence” the Judge said. “That has been a subject of intense comment and discussion for some time in our nation. And I have very strong personal views on the subject as well. But these personal views have to be cabined in and put into the context of my thoughts and thinking and activities as a private citizen, not as a judge.”62

The court, Hellerstein asserted, was constrained by precedent from interfering with intelligence gathering and required to defer to the decisions of the agency on what to classify—and CIA Director Leon Panetta had submitted a classified affidavit insisting that the information remain secret to protect intelligence sources and methods. “Personally, I think the courts ought to have a more active role, but that's not what the law is,” he said. “The Director of the CIA has made a strong representation about the needs of the CIA in relationship to its job to gather information and sources, and unless I am convinced that it is wrong, I have to give deference.”63

ACLU attorneys insisted that little would be revealed by releasing descriptions of the Abu Zubaydah and Al-Nashiri videotapes that is not already known from now-public documents like the OLC memos. Furthermore, any deference that might normally be due the agency had been surrendered by its willful destruction of the tapes.

Referring to the sample of the cable traffic he had just read in camera, Hellerstein responded:

It is not the subtraction or the addition of details. It is the use in actual cases that makes a dramatic difference with the type of information that is presented….You get a certain quality of information from a composite or an abstract or an exemplar or a summary, but you get a different quality of information in seeing how different things are used in different ways with different people at different times, what sequences are used, what order is used, what evaluations are made and so on. That's the very essence of intelligence gathering. It is not as if a generalized format is imposed by computer….

You said something to the effect that deference is not owed when the government has admitted that what it did was wrong and where there is a tendency sometimes to use classification as a way of avoiding embarrassment. It is a strong argument. But the fact that something was wrong, that it was admitted as wrong, does not change the bar, in my opinion, of deference…

If the tapes had been produced, the rationale to defer for classification probably would have been operative with regard to those tapes as well.”64

***

One of the documents ACLU attorneys pointed to as an example of the wealth of information about black site interrogations now publicly available is a “Background Paper on CIA's Combined Use of Interrogation Techniques” that the CIA sent Daniel Levin, who was preparing a replacement for the Yoo memo in the Office of Legal Counsel, on December 30, 2004. The paper, submitted under a cover sheet with the note “Dan, A generic description of the process,” explains:

In support of information previously sent to the Department of Justice, this paper provides additional background on how interrogation techniques are used, in combination and separately, to achieve interrogation objectives. Effective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic, and cumulative manner to influence HVD behavior, to overcome a detainee's resistance posture. The goal of interrogation is to create a state of learned helplessness and dependence conducive to the collection of intelligence in a predictable, reliable, and sustainable manner. For the purposes of this paper, the interrogation process can be broken into three separate phases: Initial Conditions; Transition to Interrogation; and Interrogation.65

The paper summarizes Rendition (“during the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods…”), Reception at Black Site (“the HVD finds himself in the complete control of Americans….the procedures he is subject to are precise, quiet, and almost clinical, and no one is mistreating him…”), and Transitioning to Interrogation (“The standard on participation is set very high during the Initial Interview. The HVD would have to willingly provide information on actionable threats and location information on High-Value Targets at large—not lower level information—for interrogators to continue with the neutral approach…”). It describes Interrogation as a three-step process of Conditioning Techniques, Corrective Techniques, and Coercive Techniques, and lists the permissible Enhanced Interrogation Techniques, minus the now-proscribed waterboard. Then it includes a section headed “Interrogation – A day-to-day look,” which it explains “provides a look at a prototypical interrogation with an emphasis on the application of interrogation techniques, in combination and separately.”

2) Session One

a. The HVD is brought into the interrogation room, and under the direction of the interrogators, stripped of his clothes, and placed into shackles [redacted]

b. The HVD is place standing with his back to the walling wall. The HVD remains hooded.

c. Interrogators approach the HVD, place the walling collar over his head and around his neck, and stand in front of the HVD. [redacted]

d. The interrogators remove the HVD's hood and [redacted] explain the HVD's situation to him, tell him that the interrogators will do what it takes to get important information, and that he can improve his conditions by participating with the interrogators. The insult slap is normally used as soon as the HVD does or says anything inconsistent with the interrogators' instructions.

e. [redacted] If appropriate, an insult slap or abdominal slap will follow.

f. The interrogators will likely use walling once it becomes clear that the HVD is lying, withholding information, or using other resistance techniques.

g. The sequence [redacted] may continue for several more iterations as the interrogators continue to measure the HVD's resistance posture and apply a negative consequence to the HVD's resistance efforts

h. The interrogators, assisted by security officers (for security purposes) will place the HVD in the center of the interrogation room in the vertical shackling position and diaper the HVD to begin sleep deprivation . The HVD will be provided with Ensure Plus (liquid dietary supplement) to begin dietary manipulation . The HVD remains nude . White noise (not to exceed 79db) is used in the interrogation room. The first interrogation session terminates at this point.66

And later:

4) Session Three

a. [redacted]. In addition, the medical and psychological personnel observing the interrogations must find no contraindications to continued interrogation.

b. The HVD remains in Sleep deprivation , dietary manipulation and is nude. [redacted]

c. Like the earlier sessions, the HVD begins the session standing against the walling wall with the walling collar around his neck.

d. If the HVD is still maintaining a resistance posture, interrogators will continue to use walling and water dousing. All of the Corrective Techniques ( insult slap, abdominal slap, facial hold, attention grasp ) may be used several times during this session based on the responses and actions of the HVD. Stress positions and wall standing will be integrated into interrogations [redacted] Intense questioning and walling would be repeated multiple times. Interrogators will often use one technique to support another. As an example, interrogators would tell an HVD in a stress position that he (HVD) is going back to the walling wall (for walling) if he fails to hold the stress position until told otherwise by the HVD. This places additional stress on the HVD who typically will try to hold the stress position for as long as possible to avoid the walling wall. [redacted] interrogators will remind the HVD that he is responsible for this treatment and can stop it at any time by cooperating with the interrogators

e. The interrogators, assisted by security officers, will place the HVD back into the vertical shackling position to resume sleep deprivation. Dietary manipulation also continues, and the HVD remains nude. White noise (not to exceed 79db) is used in the interrogation room. The interrogation session terminates at this point. In this example of the third session, the following techniques were used: sleep deprivation, nudity, dietary manipulation, walling, water dousing, attention grasp, insult slap, abdominal slap, stress positions, and wall standing.67

Noting that “The entire interrogation process outlined above, including transition, may last for thirty days,” the paper concludes:

[T]here is no template or script that states with certainty when and how these techniques will be used in combination during interrogation. However, the exemplar above is a fair representation of how these techniques are actually employed.68

The paper was circulated eight months after the CIA's Inspector General completed his review—a review that revealed that even when CIA interrogators adhered exactly to an OLC-approved script they were likely violating the Convention Against Torture; that the OLC's memos only offered the illusion of legal protection; and that, in any event, interrogators often strayed from the script. It came, as well, eight months after the Abu Ghraib photos showed how the sense of control and almost technological efficiency the paper strives to convey was an elaborate fiction, and that in fact the CIA program was nothing but a sum of abusive methods, many of which had mutated and spread. It also came one month after George Bush was reelected to a second term, an election he would call his “accountability moment.”

Not long after the Washington Post broke the story about the CIA black sites and the New York Times report revealed the Inspector General's probe, the CIA fired a career agent named Mary McCarthy for “discussing operational matters with journalists.” McCarthy had most recently served in the Inspector General's office, where she assisted in John Helgerson's Special Review and headed the office's investigation of CIA abuses in Iraq and Afghanistan. After her firing, the Post reported that “McCarthy became convinced that ‘CIA people had lied'” during a June 2005 Congressional briefing by promising repeatedly that CIA interrogations did not violate the Convention Against Torture, “not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhuman, and degrading.” Similarly, she reportedly told friends that “a senior agency official failed to provide a full account of the CIA's detainee treatment policy at a closed hearing of the House Intelligence committee in February 2005, under questioning by Rep. Jane Harman.”69

There has been no such accountability for those whose excesses McCarthy and Helgerson documented. After investigating the mock execution of Abd al-Rahim al-Nashiri with a handgun and drill, a patent act of torture specifically proscribed by international and US law, Helgerson referred his findings to the Department of Justice's Criminal Division. As he notes in his report, “On September 11, 2003, DoJ declined to prosecute and turned these matters over to CIA for disposition.”70 As for the Salt Pit killing, in which a detainee was doused with water, shackled to the floor, and left to freeze to death, when Helgerson referred the case for prosecution in 2004, the Justice Department refused to act, citing the rationale put forth in the “Legal Principles” memo that agents operating in black sites are off the prosecutorial map because “CIA interrogations of foreign nationals are not within the ‘special maritime or territorial jurisdiction' of the United States where the interrogation takes place on foreign territory in buildings that are not owned or leased by or under the legal jurisdiction of the US government.”71

The CIA officer who oversaw the deadly interrogation and reportedly ordered the body buried in an unmarked grave was not prosecuted or fired, he was promoted.72

Marcy Wheeler 12/10/09: The direction of this last section seems unclear. What’s the end point? It seems like it should be the Durham investigation and the OPR report - not necessarily the ACLU stuff (not least because the other two may provide something to generate activism on). But it seems like you could define a more clear end point, and from that, clean up the narrative in the middle here.

Footnotes

1. Dana Priest, “CIA Avoids Scrutiny of Detainee Treatment,” Washington Post , March 3, 2005, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/03/24/AR200503...
2. 11/20/2009 Vaughn Index, documents 17, 55, 53, available at http://www.aclu.org/files/assets/20091120_Govt_Para_4_55_Hardcopy_Vaughn...
3. 11/20/09 Vaughn Index, documents 50, 11, 8, 46
4. Final Report of Postmortem Examination, December 8, 2002, available at http://action.aclu.org/torturefoia/released/102405/3146.pdf
5. Final Report of Postmortem Examination, December 8, 2002. Within days, another detainee – this one a 22 year-old taxi driver who was incorrectly suspected of involvement in a rocket attack, was murdered by the same group of interrogators at the same facility. These and other homicides will be examined in detail in a later chapter.
6. OIG Report, “Counterterrorism Detention and Interrogation Activities, September 2001 – October 2003 (CIA Office of the Inspector General Special Review, May 7, 2004), 35, available at http://www.aclu.org/oigreport
7. CIA OIG Report, 36, 44
8. CIA OIG Report, 44
9. CIA OIG Report, 6
10. CIA OIG Report, 31-32
11. OIG Report, 43. As in the January 2002 incident at Kandahar Detention Facility described in Chapter 2, this was not an isolated, improvised technique. The OIG Report notes: “A CIA officer [redacted] revealed that cigarette smoke was once used as an interrogation technique in October 2002. Reportedly, at the request of [redacted] an interrogator, the officer, who does not smoke, blew the smoke from a thin cigarette/cigar in the detainee's face for about five minutes. The detainee started talking so the smoke ceased. [Redacted] heard that a different officer had used smoke as an interrogation technique.” And “[Redacted] admitted that he has personally used smoke inhalation techniques on detainees to make them ill to the point where they would start to ‘purge.' After this, in a weakened state, these detainees would then provide [redacted] with information.” CIA OIG Report, 72-73
12. OIG Report, 44
13. In a footnote the OIG explains, “Racking is a mechanical procedure used with firearms to chamber a bullet or simulate a bullet being chambered.”
14. [OIG at 42]
15. 18 U.S.C. 2340(2)
16. OIG Report, 14; see Chapter 2
17. Interview with John Helgerson, Der Spiegel , August 31, 2009, available at http://www.spiegel.de/international/world/0,1518,646010,00.html
18. OIG Report, 1-2
19. OIG Report, 70-72
20. OIG Report, 42-43
21. OIG Report, 69
22. OIG Report, 2
23. Interview with John Helgerson, Der Spiegel , August 31, 2009, available at http://www.spiegel.de/international/world/0,1518,646010,00.html
24. Letter from Jane Harman to Scott Muller, February 10, 2003, available at http://www.house.gov/list/press/ca36_harman/Jan_3.shtml
25. 11/20/2009 Vaughn Index, documents 32, 28
26. Letter from Scott Muller to Jane Harman, February 28, 2003, available at http://www.house.gov/list/press/ca36_harman/Jan_3.shtml
27. International Committee of The Red Cross, “ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody,” February 2007, 34-35, available at www.nybooks.com/icrc-report.pdf
28. ICRC Report, 35
29. Despite the death of the detainee at the Salt Pit, “water dousing” was emerging as a preferred technique in the spring of 2002. The Inspector General report, “According to [redacted] and others who worked [redacted] “water dousing” has been used [redacted] since early 2003 when [redacted] officer introduced this technique to the facility. Dousing involves laying a detainee down on a plastic sheet and pouring water over him for 10 to 15 minutes….A review [redacted] from April and May 2003 revealed that [redacted] sought permission from CTC [redacted] to employ specific techniques for a number of detainees. Included in the list of requested techniques was water dousing. Subsequent cables reported the use and duration of the techniques by detainee per interrogation session. One certified interrogator, noting that water dousing appeared to be a most effective technique, requested CTC to confirm guidelines on water dousing. A return cable directed that the detainee must be placed on a towel or sheet, may not be placed naked on the bare cement floor, and the air temperature must exceed 65 degrees if the detainee will not be dried immediately…The DCI Guidelines do not mention water dousing as a technique. The 4 September 2003 draft OMS Guidelines, however, identify ‘water dousing' as one of 12 standard measures that OMS listed, in ascending degree of intensity, as the 11 th standard measure. OMS did not further address ‘water dousing' in its guidelines.” OIG Report, 76
30. ICRC Report, 36
31. ICRC Report, 36-37
32. “…the individual is bound securely to an inclined bench….The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, the air low is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulated increased effort to breathe. This effort plus the cloth produces the perception of ‘suffocation and incipient panic,' i.e., the perception of drowning. The individual does not breathe water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of [12 to 24] inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout…[T]his procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. [I] is likely that this procedure would not last more than 20 minutes in any one application.” Memorandum for John Rizzo, August 1, 2002, cited in OIG Report, 21
33. OIG Report, 37
34. OIG Report, 37
35. OIG Report, 21-22
36. “Operational Issues Pertaining to the Use of Physical/Psychological Coercion in Interrogation: an Overview,” attached to July 26, 2002 memo from the Joint Recovery Personnel Agency agency to the General Counsel's office of the Department of Defense, available at www.washingtonpost.com/wp-srv/nation/.../JPRA-Memo_042409.pdf
37. OIG Report 83
38. OIG Report, 104
39. OIG Report 89
40. OIG Report 101
41. “Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa'ida Personnel,” April 28, 2003, available at www.aclu.org/torturefoia/released/082409/olcremand/2004olc17.pdf http://www.aclu.org/files/torturefoia/released/082409/olcremand/2004olc1...
42. OIG Report 93-94; full speech available at http://italy.usembassy.gov/viewer/article.asp?article=/file2003_06/alia/...
43. Mark Mazzetti and Scott Shane, “Interrogation Debate Sharply Divided Bush White House,” New York Times, May 4, 2009, available at http://www.nytimes.com/2009/05/04/us/politics/04detain.html, and Joby Warrick, “CIA Tactics Endorsed in Secret Memos,” Washington Post, October 15, 2008, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/10/14/AR200810...
44. OIG Report, 24
45. “HVT” is a High Value Target; Document available at http://www.aclu.org/files/torturefoia/released/082409/cia_ig/oig29.pdf
46. 11/29/09 Vaughn index, document 6
47. Scott Shane and Mark Mazetti, “Tapes by C.I.A. Lived and Died to Save Image, New York Times, December 30, 2007, available at http://query.nytimes.com/gst/fullpage.html?res=9D06E6DC1639F933A05751C1A...
48. Mark Mazetti and Scott Shane, “Bush Lawyers Discussed Fate of C.I.A. Tapes,” New York Times, December 17, 2007, available at http://www.nytimes.com/2007/12/19/washington/19intel.html?_r=1&pagewante...
49. Jane Mayer, The Dark Side, 292
50. Letter from Jack L. Goldsmith III to John Helgerson, May 25, 2004, available at www.aclu.org/torturefoia/released/082409/olcremand/2004olc26.pdf
51. Letter from Jack L. Goldsmith III to Scott Muller, May 27, 2004, available at http://www.aclu.org/torturefoia/released/082409/olcremand/2004olc28.pdf
52. Dana Priest and R. Jeffrey Smith, “Memo Offered Justification for the Use of Torture,” Washington Post, June 8, 2004, available at http://www.washingtonpost.com/wp-dyn/articles/A23373-2004Jun7.html
53. Doc DOJ OLC 001081
54. See Joby Warrick, “CIA Tactics Endorsed In Secret Memos,” Washington Post, October 15, 2008, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/10/14/AR200810...
55. Dana Priest, “CIA Holds Terror Suspects in Secret Prisons,” Washington Post, November 2, 2005, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/11/01/AR200511...
56. Douglas Jehl, “Report Warned C.I.A. on Tactics In Interrogation, New York Times, November 9, 2005, available at http://www.nytimes.com/2005/11/09/politics/09detain.html
57. 11/29/09 Vaughn index, documents 3, 5, 2, and 4
58. Mark Mazetti, “CIA Destroyed Two Videotapes Depicting Interrogations, New York Times , 12/7/07, available at http://www.nytimes.com/2007/12/07/washington/07intel.html
59. Thomas H. Kean and Lee H. Hamilton, “Stonewalled by the C.I.A.,” The New York Times , January 2, 2008, available at http://www.nytimes.com/2008/01/02/opinion/02kean.html
60. Order Regulating Proceedings at 2, Am. Civil Liberties Union v. Dep't of Def ., No. 1:04-CV-4151 (AKH) (S.D.N.Y. Aug. 20, 2008), available at https://www.aclu.org/files/assets/20080820_ORDER_re_regulating_contempt_.... The CIA tried to argue that because Helgerson's inquiry was a “Review” and not an “Investigation,” and because he never physically had the tapes in his possession, they were not covered by the lawsuit. CIA's Mem. in Opp'n to Pls.' Mot. for Contempt and Sanctions at 2, 10-11, Am. Civil Liberties Union v. Dep't of Def ., No. 1:04-CV-4151 (AKH) (S.D.N.Y. Jan. 10, 2008), available at http://www.aclu.org/torturefoia/legaldocuments/Opposition011008.pdf
61. Letter from Lev L. Dessin, Acting United State Attorney, to Hon. Alvin K. Hellerstein, March 2, 2009, available at www.aclu.org/pdfs/.../lettertohellerstein_ciainterrogationtapes.pdf
62. Transcript of Oral Argument at 16, Am. Civil Liberties Union v. Dep't of Def., No. 1:04-CV-4151 (AKH) (S.D.N.Y. Sept. 30, 2009), available at https://www.aclu.org/national-security/transcript-9302009-public-hearing...
63. Transcript of 9/30/09 Oral Argument at 24
64. Transcript of 9/30/09 Oral Argument at 22-23, 26, 28
65. “Background Paper on CIA's Combined Use of Interrogation Techniques,” December 30, 2004, 1, available at www.aclu.org/torturefoia/released/082409/olcremand/2004olc97.pdf
66. “Background Paper on CIA's Combined Use of Interrogation Techniques,” 9-10
67. “Background Paper on CIA's Combined Use of Interrogation Techniques,” 14-15
68. “Background Paper on CIA's Combined Use of Interrogation Techniques,” 17
69. R. Jeffrey Smith, “Fired CIA Officer Believed CIA Lied to Congress,” Washington Post , May 14, 2006, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/05/13/AR200605...
70. OIG Report, 42
71. “Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa'ida Personnel,” April 28, 2003, available at www.aclu.org/torturefoia/released/082409/olcremand/2004olc17.pdf; see Dana Priest, “CIA Avoids Scrutiny of Detainee Treatment,” Washington Post, March 3, 2005
72. Dana Priest, “CIA Avoids Scrutiny of Detainee Treatment,” Washington Post, March 3, 2005, available at http://www.washingtonpost.com/wp-dyn/articles/A2576-2005Mar2.html

Bookmark/Search this post with:

Comments

We intend the comments portion of this blog to be a forum where you can freely express your views on blog postings and on comments made by other people. Given that, please understand that you are responsible for the material you post on the comments portion of this blog. The only postings that we ask that you refrain from posting and that we cannot permit on our website are requests for legal assistance and postings that could cause ACLU to incur legal liability.

One important law in that regard is the prohibition on politically partisan activity. Given our nonprofit status, we may not endorse or oppose candidates for elective office. That means we cannot host comments on our site that show a preference for one candidate or party. Although we in no way wish to discourage you from that activity elsewhere, we ask that you not engage in that activity on our website (or include links to other websites that do so). Additionally, given that we are subject to very specific rules concerning the collection of personally identifying information through our website (names, email addresses, home address, financial information, etc.), we ask that you not use the comments portion of this blog to solicit this information from users of our website. We also ask that you not use the comments portion for advertising or requests for legal assistance, and do not add to your comment links to other websites, as we cannot be responsible for the content on other websites.

We are not able to respond to unsolicited inquiries, complaints or requests for assistance sent to this blog. Please direct your complaint or request for assistance to the ACLU affiliate in your state. Requests for legal assistance left in the blog comments will not receive a response or be published.

Finally, the ACLU cannot guarantee the accuracy, completeness or usefulness of any information in the comment section and expressly disclaims any liability for any information in this section.

In the discussion of the

Submitted on Fri, 12/04/2009 - 14:11.

In the discussion of the OLC's drafting of the Aug. 2002 Bybee memos, it is not made clear that the CIA itself provided the data and assurances regarding the supposed safety and efficacy of the techniques proposed. The CIA's OIG report itself makes clear that the CIA's Office of Technical Support provided the key information for the drafting of the memos. (See Smoking Gun on CIA Torture Conspiracy? Human Experimentation Central to EIT Program, 9/27/09) This is a key aspect of the interaction between CIA and OLC, and has many implications, about which I have explored a few. Perhaps this information is going to be included already in the upcoming parts to Chapter 3? By the way, the OIG reports description of the interchangeability of the usage of debriefer and interrogator pre-9/11 backs up my thesis in an article from last June, “'Targets of Opportunity': Corruption, Contractors, and the Origins of the SERE Torture Program" (http://firedoglake.com/2009/06/14/targets-of-opportunity-corruption-cont...), that James Mitchell had been used for interrogations ("strategic debriefings") in the field for Special Forces operations. This was pre-9/11. The following is from that article: No wonder there seems to be a plethora of small-time contracting agencies, like Spivey’s RS Consulting, or Sere Solutions, Inc., or James Mitchell’s first foray into the field, Knowledge Works, which he ran with an Army Special Operations Psychologist, Lt. Colonel John C. Chin. In 2001, Chin gave an interview (http://cache.zoominfo.com/CachedPage/?archive_id=0&page_id=304214940&pag...) to Psychology Online Journal, and described for outsiders what kind of operations all these agencies and contractors were up to (link available only in cached form — emphasis added to quote): (begin Chin quote) There are several types of debriefings that we use in Special Operations. We debrief Special Operations soldiers after they’ve been in an operational environment. We do critical incidence stress debriefs. In addition, at times, we are involved in debriefing targets of opportunity, that is, individuals who have information relevant to the types of operations that we are about to undertake…. Today about twelve percent of the psychologists in the army are Special Operations Psychologist. We are involved in the assessment and selection of personnel for special missions units as well as training, research, and organizational development. (end Chin quote) "Targets of opportunity" is a term used on the battlefield for enemy forces that opportunistically arise in the course of operations. Debriefing here begins to look very suspiciously like active interrogation. Lt. Col. Chin is careful to assure us that rapport methods of interrogation are used, and de rigeur adherence to the Geneva Conventions — and perhaps that was the case in early 2001, when this interview was given. (The insistence on following Geneva is a tip-off that more than interviews of repatriated or rescued military personnel is taking place.)