Authors: Senate Select Committee on Intelligence
The OLC repeated the CIA’s representations that “the effect of the waterboard is to induce a sensation of drowning,” that “the detainee experiences this sensation even if he is aware that he is not actually drowning,” and that “as far as can be determined, [Abu Zubaydah and KSM] did not experience physical pain or, in the professional judgment of doctors, is there any medical reason to believe they would have done so.” The OLC further accepted that physical sensations associated with waterboarding, such as choking, “end when the application ends.”
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This information is incongruent with CIA records. According to CIA records, Abu Zubaydah’s waterboarding sessions “resulted in immediate fluid intake and involuntary leg, chest and arm spasms” and “hysterical pleas.”
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A medical officer who oversaw the interrogation of KSM stated that the waterboard technique had evolved beyond the “sensation of drowning” to what he described as a “series of near drownings.”
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Physical reactions to waterboarding did not necessarily end when the application of water was discontinued, as both Abu Zubaydah and KSM vomited after being subjected to the waterboard.
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Further, as previously described, during at least one waterboard session, Abu Zubaydah “became completely unresponsive, with bubbles rising through his open, full mouth.” He remained unresponsive after the waterboard was rotated upwards. Upon medical intervention, he regained consciousness and expelled “copious amounts of liquid.”
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The CIA also relayed information to the OLC on the frequency with which the waterboard could be used that was incongruent with past operational practice.
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The May 10, 2005, memorandum analyzing the individual use of the CIA’s enhanced interrogation techniques accepted the CIA’s representations that CIA interrogators are trained for “approximately four weeks,” and that “all personnel directly engaged in the interrogation of persons detained... have been appropriately screened (from the medical, psychological and security standpoints).”
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The CIA representations about training and screening were incongruent with the operational history of the CIA program. CIA records indicate that CIA officers and contractors who conducted CIA interrogations in 2002 did not undergo any interrogation training. The first interrogator training course did not begin until November 12, 2002, by which time at least 25 detainees had been taken into CIA custody.
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Numerous CIA interrogators and other CIA personnel associated with the program had either suspected or documented personal and professional problems that raised questions about their judgment and CIA employment. This group of officers included individuals who, among other issues, had engaged in inappropriate detainee interrogations, had workplace anger management issues, and had reportedly admitted to sexual assault.
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Finally, the OLC accepted a definition of “High Value Detainee” conveyed by the CIA
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that limited the use of the CIA’s enhanced interrogation techniques to “senior member[s]” of al-Qa’ida or an associated terrorist group who have “knowledge of imminent terrorist threats” or “direct involvement in planning and preparing” terrorist actions. However, at the time of the OLC opinion, the CIA had used its enhanced interrogation techniques on CIA detainees who were found neither to have knowledge of imminent threats nor to have been directly involved in planning or preparing terrorist actions. Some were not senior al-Qa’ida members,
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or even members of al-Qa’ida.
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Others were never suspected of having information on, or a role in, terrorist plotting and were suspected only of having information on the location of UBL or other al-Qa’ida figures,
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or were simply believed to have been present at a suspected al-Qa’ida guesthouse.
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A year later,
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CTC Legal wrote to Acting Assistant Attorney General Steven Bradbury suggesting a new standard that more closely reflected actual practice by allowing for the CIA detention and interrogation of detainees to be based on the belief that the detainee had information that could assist in locating senior al-Qa’ida leadership.
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The OLC modified the standard in a memorandum dated July 20, 2007.
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By then, the last CIA detainee, Muhammad Rahim, had already entered CIA custody.
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The May 30, 2005, OLC memorandum analyzing U.S. obligations under the Convention Against Torture relied heavily on CIA representations about the intelligence obtained from the program. Many of these representations were provided in a March 2, 2005, CIA memorandum known as the “Effectiveness Memo,” in which the CIA advised that the CIA program “works and the techniques are effective in producing foreign intelligence.” The “Effectiveness Memo” stated that “[w]e assess we would not have succeeded in overcoming the resistance of Khalid Shaykh Muhammad (KSM), Abu Zubaydah, and other equally resistant high-value terrorist detainees without applying, in a careful, professional and safe manner, the full range of interrogation techniques.”
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The CIA “Effectiveness Memo” further stated that “[p]rior to the use of enhanced techniques against skilled resistors [
sic
] like KSM and Abu Zubaydah—the two most prolific intelligence producers in our control—CIA acquired little threat information or significant actionable intelligence information.” As described in this summary, the key information provided by Abu Zubaydah that the CIA attributed to the CIA’s enhanced interrogation techniques was provided prior to the use of the CIA’s enhanced interrogation techniques. KSM was subjected to CIA’s enhanced interrogation techniques within minutes of his questioning, and thus had no opportunity to divulge information prior to their use. As described elsewhere, CIA personnel concluded the waterboard was not an effective interrogation technique against KSM.
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Under a section entitled, “Results,” the CIA “Effectiveness Memo” represented that the “CIA’s use of DOJ-approved enhanced interrogation techniques, as part of a comprehensive interrogation approach, has enabled CIA to disrupt terrorist plots, capture additional terrorists, and collect a high volume of critical intelligence on al-Qa’ida.” It then listed 11 examples of “critical intelligence” acquired “after applying enhanced interrogation techniques”:
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the “Karachi Plot,” the “Heathrow Plot,” the “Second Wave,” the “Guraba Cell,” “Issa al-Hindi,” “Abu Talha al-Pakistani,” “Hambali’s Capture,” “Jafaar al-Tayyar,” the “Dirty Bomb Plot,” the “Shoe Bomber,” and intelligence obtained on “Shkai, Pakistan.” These representations of “effectiveness” were almost entirely inaccurate and mirrored other inaccurate information provided to the White House, Congress, and the CIA inspector general.
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In addition, on April 15, 2005, the CIA provided the OLC with an eight-page document entitled, “Briefing Notes on the Value of Detainee Reporting.” The CIA “Briefing Notes” document repeats many of the same CIA representations in the “Effectiveness Memo,” but added additional inaccurate information related to the capture of Iyman Faris.
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The OLC’s May 30, 2005, memorandum relied on the CIA’s inaccurate representations in the “Effectiveness Memo” and the “Briefing Notes” document in determining that the CIA’s enhanced interrogation techniques did not violate the Fifth Amendment’s prohibition on executive conduct that “shocks the conscience,” indicating that this analysis was a “highly context-specific and fact-dependent question.” The OLC also linked its analysis of whether the use of the CIA’s enhanced interrogation techniques was “constitutionally arbitrary” to the representation by the CIA that its interrogation program produced “substantial quantities of otherwise unavailable actionable intelligence.”
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The CIA’s representations to the OLC that it obtained “otherwise unavailable actionable intelligence” from the use of the CIA’s enhanced interrogation techniques were inaccurate.
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The OLC memorandum repeated specific inaccurate CIA representations, including that the waterboard was used against Abu Zubaydah and KSM “only after it became clear that standard interrogation techniques were not working”; that the information related to the “Guraba Cell” in Karachi was “otherwise unavailable actionable intelligence”; that Janat Gul was a “high value detainee”; and that information provided by Hassan Ghul regarding the al-Qa’ida presence in Shkai, Pakistan, was attributable to the CIA’s enhanced interrogation techniques.
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Citing CIA information, the OLC memorandum also stated that Abu Zubaydah was al-Qa’ida’s “third or fourth highest ranking member” and had been involved “in every major terrorist operation carried out by al Qaeda,” and that “again, once enhanced techniques were employed,” Abu Zubaydah “provided significant information on two operatives... who planned to build and detonate a ‘dirty bomb’ in the Washington DC area.” The OLC repeated additional inaccurate information from the CIA related to KSM’s reporting, including representations about the “Second Wave” plotting, the Heathrow Airport plotting, and the captures of Hambali, Iyman Paris, and Sajid Badat.
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The OLC relied on CIA representations that the use of the CIA’s enhanced interrogation techniques against ‘Abd al-Rahim al-Nashiri produced “notable results as early as the first day,” despite al-Nashiri providing reporting on the same topics prior to entering CIA custody. The OLC also repeated inaccurate CIA representations about statements reportedly made by Abu Zubaydah and KSM.
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Finally, the May 30, 2005, OLC memorandum referenced the CIA Inspector General May 2004 Special Review, stating; “we understand that interrogations have led to specific, actionable intelligence as well as a general increase in the amount of intelligence regarding al Qaeda and its affiliates.”
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The OLC memorandum cited pages in the Special Review that included inaccurate information provided by CIA personnel to the CIA’s OIG, including representations related to Jose Padilla and Binyam Muhammad, Hambali and the “Al-Qa’ida cell in Karachi,” the Parachas, Iyman Paris, Saleh al-Marri, Majid Khan, the Heathrow Airport plotting, and other “plots”.
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E. After Passage of the Detainee Treatment Act, OLC Issues Opinion on CIA Conditions of Confinement, Withdraws Draft Opinion on the CIA’s Enhanced Interrogation Techniques After the U.S. Supreme Court Case of
Hamdan v. Rumsfeld
On December 19, 2005, anticipating the passage of the Detainee Treatment Act, Acting CIA General Counsel John Rizzo requested that the OLC review whether the CIA’s enhanced interrogation techniques, as well as the conditions of confinement at CIA detention facilities, would violate the Detainee Treatment Act.
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In April 2006, attorneys at OLC completed initial drafts of two legal memoranda addressing these questions.
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In June 2006, however, the U.S. Supreme Court case of
Hamdan v. Rumsfeld
prompted the OLC to withdraw its draft memorandum on the impact of the Detainee Treatment Act on the CIA’s enhanced interrogation techniques. As ███████CTC Legal explained, the OLC would prepare “a written opinion ‘if we want’ . . . but strongly implied we shouldn’t seek it.”
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As described in a July 2009 report of the Department of Justice Office of Professional Responsibility, the Administration determined that, after the Hamdan decision, it would need new legislation to support the continued use of the CIA’s enhanced interrogation techniques.
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Even as it withdrew its draft opinion on the CIA’s enhanced interrogation techniques, the OLC continued to analyze whether the CIA’s conditions of confinement violated the Detainee Treatment Act. To support this analysis, the CIA asserted to the OLC that loud music and white noise, constant light, and 24-hour shackling were all for security purposes, that shaving was for security and hygiene purposes and was conducted only upon intake and not as a “punitive step,” that detainees were not exposed to an “extended period” of white noise, and that CIA detainees had access to a wide array of amenities.
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This information is incongruent with CIA records. Detainees were routinely shaved, sometimes as an aid to interrogation; detainees who were “participating at an acceptable level” were permitted to grow their hair and beards.
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The CIA had used music at decibels exceeding the representations to the OLC. The CIA had also used specific music to signal to a detainee that another interrogation was about to begin.
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Numerous CIA detainees were subjected to the extended use of white noise.
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The CIA further inaccurately represented that “[m]edical personnel will advise ending sleep deprivation in the event the detainee appears to be experiencing hallucinations, transient or not.”
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In a May 18, 2006, letter,
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CTC Legal,
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, wrote to the Department of Justice that “some of these conditions provide the additional benefit of setting a detention atmosphere conducive to continued intelligence collection from the detainee.” While the letter referred generally to “constant light in the cells, use of white noise, use of shackles, hooding, and shaving/barbering,” it described an intelligence collection purpose only for shaving, which “allows interrogators a clear view of the terrorist-detainee’s facial clues.”
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On August 31, 2006, the OLC finalized two legal analyses on the conditions of confinement at CIA detention sites. The first was a memorandum that evaluated whether six detention conditions in the CIA’s detention program were consistent with the Detainee Treatment Act.
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The second, provided in the form of a letter, concluded that those same six conditions did not violate the requirements of Common Article 3 of the Geneva Conventions.
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The OLC relied on the CIA’s representations related to conditions of confinement for its analysis.
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The OLC wrote that “underlying our analysis of all these methods [conditions of confinement] is our understanding that the CIA provides regular and thorough medical and psychological care to the detainees in its custody.”
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As detailed in this summary, the lack of emergency medical care for CIA detainees was a significant challenge for the CIA.
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