Authors: Senate Select Committee on Intelligence
On May 26, 2005, the CIA inspector general, who had been provided with the two OLC memoranda, wrote a memo to the CIA director recommending that the CIA seek additional legal guidance on whether the CIA’s enhanced interrogation techniques and conditions of confinement met the standard under Article 16 of the Convention Against Torture.
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The inspector general noted that “a strong case can be made that the Agency’s authorized interrogation techniques are the kinds of actions that Article 16 undertakes to prevent,” adding that the use of the waterboard may be “cruel” and “extended detention with no clothing would be considered ‘degrading’ in most cultures, particularly Muslim.” The inspector general further urged that the analysis of conditions was equally important, noting that the inspector general’s staff had “found a number of instances of detainee treatment which arguably violate the prohibition on cruel, inhuman, and/or degrading treatment.”
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On May 30, 2005, a third OLC memorandum examining U.S. obligations under the Convention Against Torture was completed.
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The conclusions in this opinion were based largely on the CIA’s representations about the effectiveness of the CIA interrogation program in obtaining unique and “otherwise unavailable actionable intelligence.” As described later in this summary, and in more detail in Volume II, the CIA’s effectiveness representations were almost entirely inaccurate.
2. Abu Faraj Al-Libi Subjected to the CIA’s Enhanced Interrogation Techniques Prior to Department of Justice Memorandum on U.S. Obligations Under the Convention Against Torture; CIA Subjects Abu Faraj Al-Libi to the CIA’s Enhanced Interrogation Techniques When He Complains of Hearing Problems
On May 2, 2005, when Abu Faraj al-Libi, al-Qa’ida’s chief of operations, was captured in Pakistan, the OLC had not yet issued the three aforementioned May 2005 legal memoranda.
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CIA officers described Abu Faraj al-Libi’s capture as the “most important al-Qa’ida capture since Khalid Shaykh Muhammad.
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Shortly after al-Libi’s capture, the CIA began discussing the possibility that Abu Faraj al-Libi might be rendered to U.S. custody.
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On May ██, 2005, four days before the rendition of Abu Faraj al-Libi to CIA custody, Director of CTC Robert Grenier asked CIA Director Porter Goss to send a memorandum to the national security advisor and the director of national intelligence “informing them of the CIA’s plans to take custody of Abu Faraj al-Libi and to employ interrogation techniques if warranted and medically safe.
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On May 24, 2005, the White House informed the CIA that a National Security Council Principals Committee meeting would be necessary to discuss the use of the CIA’s enhanced interrogation techniques on Abu Faraj al-Libi, but the travel schedule of one of the principals was delaying such a meeting.
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CIA Director Goss instructed CIA officers to proceed as planned, indicating that he would call the principals individually and inform them that, if Abu Faraj al-Libi was found not to be cooperating and there were no contraindications to such an interrogation, he would approve the use of all of the CIA’s enhanced interrogation techniques other than the waterboard, without waiting for a meeting of the principals.
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Abu Faraj al-Libi was rendered to CIA custody at DETENTION SITE ORANGE on May ██ 2005,
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and transferred to DETENTION SITE BLACK on May ██, 2005.
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On May ██, 2005, CIA Director Goss formally notified National Security Advisor Stephen Hadley and Director of National Intelligence (DNI) John Negroponte that Abu Faraj al-Libi would be rendered to the unilateral custody of the CIA.
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Director Goss’s memorandum stated:
“[should Abu Faraj resist cooperating in CIA debriefings, and pending a finding of no medical or psychological contraindictations [
sic
], to interrogation, I will authorize CIA trained and certified interrogators to employ one or more of the thirteen specific interrogation techniques for which CIA recently received two signed legal opinions from the Department of Justice (DOJ), Office of Legal Counsel (OLC) that these techniques, both individually and used collectively, are lawful.”
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The memorandum from Director Goss described Abu Faraj al-Libi as holding the third most important position in al-Qa’ida, and “play[ing] a leading role in directing al-Qa’ida’s global operations, including attack planning against the US homeland.” Abu Faraj al-Libi was also described as possibly overseeing al-Qa’ida’s “highly compartmented anthrax efforts.”
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On May ██, 2005, one day after al-Libi’s arrival at DETENTION SITE BLACK, CIA interrogators received CIA Headquarters approval for the use of the CIA’s enhanced interrogation techniques on Abu Faraj al-Libi.
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CIA interrogators began using the CIA’s enhanced interrogation techniques on Abu Faraj al-Libi on May 28, 2005, two days before the OLC issued its memorandum analyzing whether the techniques violated U.S. obligations under the Convention Against Torture.
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The CIA interrogated Abu Faraj al-Libi for more than a month using the CIA’s enhanced interrogation techniques. On a number of occasions, CIA interrogators applied the CIA’s enhanced interrogation techniques to Abu Faraj al-Libi when he complained of a loss of hearing, repeatedly telling him to stop pretending he could not hear well.
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Although the interrogators indicated that they believed al-Libi’s complaint was an interrogation resistance technique, Abu Faraj al-Libi was fitted for a hearing aid after his transfer to U.S. military custody at Guantanamo Bay in 2006.
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Despite the repeated and extensive use of the CIA’s enhanced interrogation techniques on Abu Faraj al-Libi, CIA Headquarters continued to insist throughout the summer and fall of 2005 that Abu Faraj al-Libi was withholding information and pressed for the renewed use of the techniques. The use of the CIA’s enhanced interrogation techniques against Abu Faraj al-Libi was eventually discontinued because CIA officers stated that they had no intelligence to demonstrate that Abu Faraj al-Libi continued to withhold information, and because CIA medical officers expressed concern that additional use of the CIA’s enhanced interrogation techniques “may come with unacceptable medical or psychological risks.”
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After the discontinuation of the CIA’s enhanced interrogation techniques, the CIA asked Abu Faraj al-Libi about UBL facilitator Abu Ahmad al-Kuwaiti for the first time.
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Abu Faraj al-Libi denied knowledge of al-Kuwaiti.
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3. CIA Acquires Two Detainees from the U.S. Military
Another legal issue in late 2005 was related to the U.S. Department of Defense’s involvement in CIA detention activities. In September 2005, the CIA and the Department of Defense signed a Memorandum of Understanding on this subject,
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and the U.S. military agreed to transfer two detainees, Ibrahim Jan and Abu Ja’far al-Iraqi, to CIA custody.
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Both were held by the U.S. military without being registered with the ICRC for over 30 days, pending their transfer to CIA custody. The transfer of Abu Ja’far al-Iraqi took place notwithstanding Department of State concerns that the transfer would be inconsistent with statements made by the secretary of state that U.S. forces in Iraq would remain committed to the law of armed conflict, including the Geneva Conventions.
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In late 2005, during the period the U.S. Senate was debating the Detainee Treatment Act barring “cruel, inhuman, or degrading treatment or punishment,”
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the CIA subjected Abu Ja’far al-Iraqi to its enhanced interrogation techniques.
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A draft Presidential Daily Brief (PDB) stated that Abu Ja’far al-Iraqi provided “almost no information that could be used to locate former colleagues or disrupt attack plots”—the type of information sought by the CIA, and the CIA’s justification for the use of its enhanced interrogation techniques.
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Later, the statement that Abu Ja’far al-Iraqi provided “almost no information that could be used to locate former colleagues or disrupt attack plots” was deleted from the draft PDB.
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Abu Ja’far al-Iraqi remained in CIA custody until early September 2006, when he was transferred to U.S. military custody in Iraq.
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4. The CIA Seeks “End Game” for Detainees in Early 2005 Due to Limited Support From Liaison Partners
In early 2005, the CIA again sought an “endgame” policy for its detainees, citing its unstable relations with host governments and its difficulty in identifying additional countries to host CIA detention facilities.
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Talking points prepared for the CIA director for a meeting with the national security advisor made the following appeal:
“CIA urgently needs [the President of the United States] and Principals Committee direction to establish a long-term disposition policy for the 12 High-Value detainees (HVD)s we hold in overseas detention sites. Our liaison partners who host these sites are deeply concerned by [REDACTED]
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press leaks, and they are increasingly skeptical of the [U.S. government’s] commitment to keep secret their cooperation . . . A combination of press leaks, international scrutiny of alleged [U.S. government] detainee abuse, and the perception that [U.S. government] policy on detainees lacks direction is eroding our partners’ trust in U.S. resolve to protect their identities and supporting roles. If a [U.S. government] plan for long-term [detainee] disposition does not emerge soon, the handful of liaison partners who cooperate may ask us to close down our facilities on their territory. Few countries are willing to accept the huge risks associated with hosting a CIA detention site, so shrinkage of the already small pool of willing candidates could force us to curtail our highly successful interrogation and detention program. Fear of public exposure may also prompt previously cooperative liaison partners not to accept custody of detainees we have captured and interrogated. Establishment of a clear, publicly announced [detainee] ‘endgame’—one sanctioned by [the President of the United States] and supported by Congress—will reduce our partners’ concerns and rekindle their enthusiasm for helping the US in the War on Terrorism.”
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In March 2005, talking points prepared for the CIA director for a discussion with the National Security Council Principals Committee stated that it was:
“only a matter of time before our remaining handful of current blacksite hosts concludes that [U.S. government] policy on [detainees] lacks direction and . . . [the blacksite hosts] ask us to depart from their soil . . . Continuation of status quo will exacerbate tensions in these very valuable relationships and cause them to withdraw their critical support and cooperation with the [U.S. government].”
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During this period, the U.S. solicitor general, however, expressed concern that if CIA detainees were transferred back to Guantanamo Bay, Cuba, they might be entitled to file a habeas petition and have access to an attorney.
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Meanwhile, the National Security Council continued to discuss a public roll-out, and as described later in this summary, the CIA engaged the media directly in order to defend and promote the program.
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The question of what to do with the remaining detainees in CIA custody remained unresolved throughout 2005, during which time the CIA pursued agreements with additional countries to establish clandestine CIA detention facilities.
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The Detainee Treatment Act was passed by Congress on December 23, 2005, as part of the National Defense Authorization Act for Fiscal Year 2006. That day, the CIA suspended its interrogation program again.
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As described later in this summary, in February 2006, the CIA informed the National Security Council principals that the CIA would not seek continued use of all of the CIA’s enhanced interrogation techniques.
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5. Press Stories and the CIA’s Inability to Provide Emergency Medical Care to Detainees Result in the Closing of CIA Detention Facilities in Countries ██ and ██
In October 2005, the CIA learned that
Washington Post
reporter Dana Priest had information about the CIA’s Detention and Interrogation Program,
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. The CIA then conducted a series of negotiations with the
Washington Post
in which it sought to prevent the newspaper from publishing information on the CIA’s Detention and Interrogation Program.
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Fearful that
████████████████████████████████████████
, the CIA recommended the immediate transfer of CIA detainees to Department of Defense custody.
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When the Department of Defense rejected the proposal, the National Security Council directed the CIA to prepare other options.
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Meanwhile, two U.S. ambassadors, one in
███████
and another in
███████
, inquired whether Secretary of State Rice had been briefed on the impending
Washington Post
article and sought to speak to the secretary herself to ensure that the CIA program was authorized. According to CIA documents, Secretary Rice was not aware of the specific countries where the CIA detention facilities were located.
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In lieu of a phone call from Secretary Rice, the CIA recommended that the State Department’s Counterterrorism Coordinator and former CTC DDO, Henry Crumpton, call the ambassadors.
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The
Washington Post
published an article about CIA detention sites on November 2, 2005.
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The publication of the
Washington Post
article resulted in a demarche to the United States from
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, which also suggested that
█████████
contribution
████████████████
could be in jeopardy.
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The United States also received a demarche from ██████████.
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According to a CIA cable, U.S. representatives to █████████████ “if another shoe were to drop,” there would be considerable ramifications for U.S. relations with ███████████ on a number of issues that depended on U.S. credibility in the area of human rights. The representatives also “questioned whether the gravity of this potential problem is fully appreciated in Washington.”
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