Authors: Senate Select Committee on Intelligence
The August 31, 2006, OLC memorandum applying the terms of the Detainee Treatment Act to the conditions of confinement at CIA detention facilities stated that “over the history of the program, the CIA has detained a total of 96 individuals.” This was based on a representation made by ████████CTC Legal on April 23, 2006.”
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As of the date of the OLC memorandum, the CIA had detained at least 118 individuals. The OLC memorandum also stated that “we understand that, once the CIA assesses that a detainee no longer possesses significant intelligence value, the CIA seeks to move the detainee into alternative detention arrangements.” CIA records indicate that detainees had remained in CIA custody long after the CIA had determined that they no longer possessed significant intelligence. Finally, the OLC memorandum repeated a number of earlier inaccurate CIA representations on the effectiveness of the program, citing both the CIA’s “Effectiveness Memo” and its own May 30, 2005, memorandum. Notably, the August 31, 2006, OLC memorandum repeated the same inaccurate representation, which first appeared in an August 2002 OLC memorandum, 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.” As described, CIA records as early as 2002 did not support these representations, and two weeks prior to the issuance of the August 2006 memorandum, the CIA had published an intelligence assessment stating that Abu Zubaydah had been rejected by al-Qa’ida and explaining how the CIA had come to “miscast Abu Zubaydah as a ‘senior al-Qa’ida lieutenant.’ ”
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F. July 2007 OLC Memorandum Relies on Inaccurate CIA Representations Regarding CIA Interrogations and the Effectiveness of the CIA’s Enhanced Interrogation Techniques; CIA Misrepresents Congressional Views to the Department of Justice
On July 20, 2007, the OLC issued a memorandum applying the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to the CIA’s enhanced interrogation techniques. The memorandum noted that, while the
Hamdan
decision “was contrary to the President’s prior determination that Common Article 3 does not apply to an armed conflict across national boundaries with an international terrorist organization such as al Qaeda,” this challenge to the CIA program was resolved by the Military Commissions Act, which “left responsibility for interpreting the meaning and application of Common Article 3, except for the grave breaches defined in the amended War Crimes Act, to the President.”
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The OLC memorandum determined that six proposed interrogation techniques were legal: dietary manipulation, extended sleep deprivation, the facial hold, the attention grasp, the abdominal slap, and the insult (or facial) slap. The memorandum accepted the CIA’s representation that, over the life of the program, the CIA had detained 98 individuals, of whom 30 had been subjected to the CIA’s enhanced interrogation techniques.
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At the time of the OLC memorandum the CIA had detained at least 119 individuals, of whom at least 38 had been subjected to the CIA’s enhanced interrogation techniques.
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The inaccurate statistics provided by the CIA to the OLC were used to support OLC’s conclusion that the program was “proportionate to the government interest involved,” as required by the “shocks the conscience” test. The OLC also noted that “careful screening procedures are in place to ensure that enhanced techniques will be used only in the interrogations of agents or members of al Qaeda or its affiliates who are reasonably believed to possess critical intelligence that can be used to prevent future terrorist attacks against the United States and its interests.”
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In practice, numerous individuals had been detained by the CIA and subjected to the CIA’s enhanced interrogation techniques, despite doubts and questions surrounding their knowledge of terrorist threats and the location of senior al-Qa’ida leadership. Examples include, among others: Asadullah,
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Mustafa al-Hawsawi,
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Abu Hudhaifa,
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Arsala Khan,
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ABU TALHA AL-MAGREBI and ABU BAHAR AL-TURKI,
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Janat Gul,
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Ahmed Ghailani,
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Sharif al-Masri,
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and Sayyid Ibrahim.
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The July 20, 2007, OLC memorandum also stated that the CIA’s enhanced interrogation techniques “are not the first option for CIA interrogators confronted even with a high value detainee.”
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As described in this summary, numerous CIA detainees were subjected to the CIA’s enhanced or “standard” interrogation techniques on their first day of CIA custody,
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while other detainees provided significant information prior to the use of the CIA’s enhanced interrogation techniques. The OLC memorandum also accepted the CIA representation that “[t]he CIA generally does not ask questions during the administration of the techniques to which the CIA does not already know the answers,” that the CIA “asks for already known information” during the administration of the CIA’s enhanced interrogation techniques, and that when CIA personnel believe a detainee will cooperate, “the CIA would discontinue use of the techniques and debrief the detainee regarding matters on which the CIA is not definitely informed.” As the memorandum concluded, “[t]his approach highlights the intended psychological effects of the techniques and reduces the ability of the detainee to provide false information solely as a means to discontinue their application.”
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This description of the program was inaccurate. As described in this summary, and in more detail in the full Committee Study, CIA interrogators always questioned detainees during the application of the CIA’s enhanced interrogation techniques seeking new information to which the CIA did not have answers, and numerous detainees fabricated information while being subjected to the interrogation techniques.
The July 20, 2007, OLC memorandum repeated CIA representations that “many, if not all, of those 30 detainees” who had been subjected to CIA’s enhanced interrogation techniques received counter interrogation training, and that “al Qaeda operatives believe that they are morally permitted to reveal information once they have reached a certain limit of discomfort.”
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Neither of these representations is supported by CIA records.
The memorandum also repeated CIA representations that interrogators were “highly trained in carrying out the techniques,” and “psychologically screened to minimize the risk that an interrogator might misuse any technique.” These presumptions were central to the OLC’s determination that the limitations on interrogations contained in the Army Field Manual were not “dispositive evidence” that the CIA’s interrogation program fell outside “traditional executive behavior and contemporary practice,” an analysis required as part of the substantive due process inquiry. Specifically, the OLC distinguished U.S. military interrogations from the CIA program by stating that the CIA program “will be administered only by trained and experienced interrogators who in turn will apply the techniques only to a subset of high value detainees.”
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As described in this summary, and in greater detail in the full Committee Study, the CIA’s representations to the OLC were incongruent with the history of the CIA’s Detention and Interrogation Program with regard to the training, screening, and experience of interrogators, and the detainees against whom the CIA used its enhanced interrogation techniques.
The July 2007 OLC memorandum based its legal analysis related to the six interrogation techniques under consideration on CIA representations that were incongruent with the operational history of the program. In reviewing whether standing sleep deprivation was consistent with the War Crimes Act, the OLC noted that its understanding that the technique would be discontinued “should any hallucinations or significant declines in cognitive functioning be observed” was “crucial to our analysis.” The memorandum repeated CIA representations that diapers employed during standing sleep deprivation “are used solely for sanitary and health reasons and not to humiliate the detainee,” and that, more generally, “[t]he techniques are not intended to humiliate or to degrade.”
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The OLC’s understanding, which, as described, was not consistent with the operational history of the CIA program, was part of its analysis related to the prohibition on “outrages upon personal dignity” under Common Article 3.
As in the May 30, 2005 OLC memorandum, the July 20, 2007, OLC memorandum conducted an analysis of the “shocks the conscience” test under the Fifth Amendment of the U.S. Constitution, emphasizing the fact-specific nature of the analysis. Citing both the CIA’s March 2005 “Effectiveness Memo” and the president’s September 6, 2006, speech describing the interrogation program, the July 2007 OLC memorandum repeated the CIA assertion that the CIA’s enhanced interrogation techniques produced “otherwise unavailable intelligence.” It also repeated CIA representations related to KSM’s reporting on the “Second Wave” plotting and Abu Zubaydah’s reporting on Jose Padilla, both of which were inaccurate.
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The OLC memorandum also stated that the use of the CIA’s enhanced interrogation techniques had “revealed plots to blow up the Brooklyn Bridge and to release mass biological agents in our Nation’s largest cities.”‘
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Finally, the July 20, 2007, OLC memorandum asserted—based on CIA representations—that members of Congress supported the CIA interrogation program, and that, by subsequently voting for the Military Commissions Act, those members effectively endorsed an interpretation of the Act that would be consistent with the continued use of the CIA’s enhanced interrogation techniques. This interpretation of congressional intent also supported the OLC’s constitutional analysis, which stated that there could be “little doubt” that the Act “reflected an endorsement” from Congress that the CIA program “was consistent with contemporary practice, and therefore did not shock the conscience.”
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Specifically, the OLC memorandum noted that according to CIA representations, prior to the passage of the Military Commissions Act, “several Members of Congress, including the full memberships of the House and Senate Intelligence Committees and Senator McCain, were briefed by General Michael Hayden, director of the CIA, on the six techniques,” and that “in those classified and private conversations, none of the Members expressed the view that the CIA interrogation program should be stopped, or that the techniques at issue were inappropriate.”
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This representation was inaccurate. For example, according to CIA records, during a briefing on September 11, 2006, Senator John McCain informed the CIA that he believed the CIA’s enhanced interrogation techniques, including sleep deprivation and the waterboard, were “torture.”
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On September 27, 2006 Senator Dianne Feinstein, a member of the Senate Select Committee on Intelligence, wrote a letter to CIA Director Hayden stating that she was “unable to understand why the CIA needs to maintain this program.”
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On September 6, 2006, when the CIA provided its first and only briefing to the full Committee on the CIA program prior to the vote on the Military Commissions Act, Committee staff access was limited to the two Committee staff directors.
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In May 2007, shortly after the CIA allowed additional Committee staff to be briefed on the program, other members of the Committee prepared and provided letters to Director Hayden. On May 1, 2007, Senator Russ Feingold wrote that “I cannot support the program on moral, legal or national security grounds.”
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On May 11, 2007, Senators Chuck Hagel, Dianne Feinstein, and Ron Wyden wrote a letter expressing their long-standing concerns with the program and their “deep discomfort with the use of EITs.”
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A. After Memorandum of Notification, the CIA Disavows Torture and Assures the Committee Will Be Notified of Every Individual Detained by the CIA
Following the September 11, 2001, terrorist attacks and the signing of the September 17, 2001, Memorandum of Notification (MON), the Senate Select Committee on Intelligence (“the Committee”) held a series of hearings and briefings on CIA covert actions, including the new authority to detain terrorists. At a November 13, 2001, briefing for Committee staff, ███████CTC Legal, ████████, described the CIA’s new detention authorities as “terrifying” and expressed the CIA’s intent to “find a cadre of people who know how to run prisons, because we don’t.”
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Deputy Director of Operations (DDO) James Pavitt assured the Committee that it would be informed of each individual who entered CIA custody. Pavitt disavowed the use of torture against detainees while stating that the boundaries on the use of interrogation techniques were uncertain—specifically in the case of having to identify the location of a hidden nuclear weapon.
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In meetings with the CIA in February 2002, the month before the capture and detention of Abu Zubaydah, Committee staff expressed concern about the lack of any legal review of the CIA’s new detention authorities. █████████ noted that the discussion with Committee staff was “the only peer review” the CIA lawyers had engaged in with regard to the MON authorities, and that the discussion helped refine the CIA’s understanding of what MON-authorized activity was in fact legally permissible and appropriate.
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B. The CIA Notifies Committee of the Detention of Abu Zubaydah, but Makes No Reference to Coercive Interrogation Techniques; the CIA Briefs Chairman and Vice Chairman After the Use of the CIA’s Enhanced Interrogation Techniques; the CIA Discusses Strategy to Avoid the Chairman’s Request for More Information
On April 18, 2002, the CIA informed the Committee that it “has no current plans to develop a detention facility.”
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At the time of this representation, the CIA had already established a CIA detention site in Country ██ and detained Abu Zubaydah there. On April 24, 2002, the CIA notified the Committee about the capture of Abu Zubaydah with the understanding that the location of Abu Zubaydah’s detention was among the “red lines” not to be divulged to the Committee.
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The notification and subsequent information provided to the Committee included representations that Abu Zubaydah was a “member of Bin Ladin’s inner circle” and a “key al-Qa’ida lieutenant.”
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These representations were inaccurate. Briefings to the Committee in the spring of 2002 emphasized the expertise of FBI and CIA interrogators engaged in the Abu Zubaydah interrogations and provided no indication that coercive techniques were being used or considered, or that there was significant disagreement between the CIA and the FBI on proposed interrogation approaches.
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In early August 2002, after the Department of Justice determined that the use of the CIA’s enhanced interrogation techniques on Abu Zubaydah would be legal, the CIA considered briefing the Committee on the CIA’s interrogation techniques, but did not.
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In early September 2002, the CIA briefed the House Permanent Select Committee on Intelligence (HPSCI) leadership about the CIA’s enhanced interrogation techniques. Two days after, the CIA’s
███████
CTC Legal,
██████████
, excised from a draft memorandum memorializing the briefing indications that the HPSCI leadership questioned the legality of the program by deleting the sentence: “HPSCI attendees also questioned the legality of these techniques if other countries would use them.”
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After
██████████
blind-copied Jose Rodriguez on the email in which he transmitted the changes to the memorandum, Rodriguez responded to
███████
’s email with: “short and sweet.”
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The first briefing for Senate Select Committee on Intelligence Chairman Bob Graham and Vice Chairman Richard Shelby—and their staff directors—occurred on September 27, 2002, nearly two months after the CIA first began subjecting Abu Zubaydah to the CIA’s enhanced interrogation techniques. The only record of the briefing is a one-paragraph CIA memorandum stating that the briefing occurred.
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The Committee does not have its own records of this briefing.
Shortly thereafter, in late 2002, Chairman Graham sought to expand Committee oversight of the CIA’s Detention and Interrogation Program, including by having Committee staff visit CIA interrogation sites and interview CIA interrogators.
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The CIA rejected this request. An internal CIA email from █████CTC Legal ███████████ indicated that the full Committee would not be told about “the nature and scope of the interrogation process,” and that even the chairman and vice chairman would not be told in which country or “region” the CIA had established its detention facilities.
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Other emails describe efforts by the CIA to identify a “strategy” for limiting the CIA’s responses to Chairman Graham’s requests for more information on the CIA’s Detention and Interrogation Program, specifically seeking a way to “get off the hook on the cheap.”
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The CIA eventually chose to delay its next update for the Committee leadership on the CIA’s program until after Graham had left the Committee.
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At the same time, the CIA rejected a request for the Committee staff to be “read-in” and provided with a briefing on the CIA program.
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C. No Detailed Records Exist of CIA Briefings of Committee Leadership; the CIA Declines to Answer Questions from Committee Members or Provide Requested Materials
On February 4, 2003, the CIA briefed the new chairman, Senator Pat Roberts, and the two staff directors. Vice Chairman John D. Rockefeller IV was not present. The only record of the briefing, a two-page CIA memorandum, states that CIA officers:
“described in great detail the importance of the information provided by [Abu] Zubayda[h] and [‘Abd al-Rahim al-] Nashiri, both of whom had information of on-going terrorist operations, information that might well have saved American lives, the difficulty of getting that information from them, and the importance of the enhanced techniques in getting that information.”
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As described in this summary, and in greater detail in the full Committee Study, Abu Zubaydah and al-Nashiri did not provide actionable intelligence on ongoing plotting, and provided significant reporting prior to the use of the CIA’s enhanced interrogation techniques. The CIA declined to provide information pursuant to a request from Chairman Roberts on the location of the CIA’s detention site. Finally, the CIA memorandum states that Chairman Roberts “gave his assent” to the destruction of interrogation videotapes; however, this account in the CIA memorandum was later disputed by Chairman Roberts.
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The Committee has no independent record of this briefing.
Throughout 2003, the CIA refused to answer questions from Committee members and staff about the CIA interrogations of KSM and other CIA detainees.
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The CIA produced talking points for a September 4, 2003, briefing on the CIA interrogation program exclusively for Committee leadership; however, there are no contemporaneous records of the briefing taking place. The CIA talking points include information about the use of the CIA’s enhanced interrogation techniques, their effectiveness, and various abuses that occurred in the program.
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Many of the CIA representations in the talking points were inaccurate.
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The CIA continued to withhold from the Committee, including its leadership, any information on the location of the CIA’s detention facilities. On more than one occasion the CIA directed CIA personnel at Guantanamo Bay, Cuba, not to brief a visiting Committee member about the CIA detention facility there, including during a July 2005 visit by Chairman Roberts.
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In 2004, the Committee conducted two hearings on the CIA’s role in interrogating U.S. military detainees at Abu Ghraib prison in Iraq. CIA witnesses stressed that the CIA was more limited in its interrogation authorities than the Department of Defense, but declined to respond to Committee questions about the interrogation of KSM or press reports on CIA detention facilities.
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During the first briefing, on May 12, 2004, Committee members requested Department of Justice memoranda addressing the legality of CIA interrogations. Despite repeated subsequent requests, limited access to the memoranda was not granted until four years later, in June 2008, by which time the CIA was no longer detaining individuals.
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While the CIA continued to brief the Committee leadership on aspects of the CIA’s Detention and Interrogation Program, there are no transcripts of these briefings. One briefing, on July 15, 2004, discussed the detention of Janat Gul.
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An email from ████████CTC Legal stated that the “only reason” the chairman and vice chairman were informed of the detention of Janat Gul was that the notification could serve as “the vehicle for briefing the committees on our need for renewed legal and policy support” for the CIA’s Detention and Interrogation Program.
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At the July 2004 briefing, the minority staff director requested full Committee briefings and expanded Committee oversight, including visits to CIA detention sites and interviews with interrogators—efforts that had been sought by former Chairman Graham years earlier. This request was denied.
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D. Vice Chairman Rockefeller Seeks Committee Investigation
On February 3, 2005, Vice Chairman Rockefeller began a formal effort to conduct a comprehensive Committee investigation of the CIA’s detention, interrogation and rendition activities, including a review of the legality and effectiveness of CIA interrogations.
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On March 3, 2005, a CIA official wrote that Vice Chairman Rockefeller was “convinced that we’re hiding stuff from him” and that the CIA had planned a detailed briefing to “shut Rockefeller up.”
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The only Committee records of this briefing, which took place on March 7, 2005, are handwritten notes written by Vice Chairman Rockefeller and the minority staff director.
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Shortly after this briefing, the vice chairman reiterated his call for a broad Committee investigation of the CIA’s Detention and Interrogation Program, which he and the ranking member of the HPSCI, Jane Harman, described in a letter to Vice President Cheney.
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There is no Committee record of a response to the letter.
On April 13, 2005, the day before an anticipated Committee vote on the chairman’s proposed investigation of the CIA program, the chief of ALEC Station, ██████████ and the deputy chief of CTC, Philip Mudd, discussed a press strategy to shape public and congressional views of the program. As previously detailed, Mudd wrote:
“we either get out and sell, or we get hammered, which has implications beyond the media, congress reads it, cuts our authorities, messes up our budget, we need to make sure the impression of what we do is positive.”
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The next day, CIA Inspector General John Helgerson briefed several members of the Committee on limited aspects of the CIA’s Detention and Interrogation Program. According to Helgerson, Chairman Roberts’ “motive was to have a presentation that made clear that CIA IG is looking at all appropriate detention and interrogation issues, as (he told me privately beforehand) the Committee will be voting today on whether to launch their own inquiry.” Helgerson added that “Roberts said ‘I know how that vote is going to come out, but I want the minority to go away knowing this is in good hands.’”
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The proposed investigation was not approved by the Committee. The Committee nonetheless subsequently approved legislation requiring CIA reports on renditions and plans for the disposition of high-value CIA detainees, as well as requesting expanded Committee staff access to the program beyond the Committee staff directors.
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In addition, Vice Chairman Rockefeller requested full Committee access to over 100 documents related to the May 2004 Inspector General Special Review.
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On January 5, 2006, after multiple rounds of negotiations with the CIA for the documents, the chief of staff to Director of National Intelligence John Negroponte wrote a letter rejecting the request. The letter had been prepared by the former ██████CTC Legal, ████████████, who was by then serving as a CIA detailee in the Office of the Director of National Intelligence.
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E. In Response to Detainee Treatment Act, the CIA Briefs Senators Not on the Committee; Proposal from Senator Levin for an Independent Commission Prompts Renewed Calls Within the CIA to Destroy Interrogation Videotapes
In October and November 2005, after the Senate passed its version of the Detainee Treatment Act, the CIA, directed by the Office of the Vice President, briefed specific Republican senators, who were not on the Select Committee on Intelligence, on the CIA’s Detention and Interrogation Program. (The full membership of the Committee had not yet been briefed on the CIA interrogation program.)
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The briefings, which were intended to influence conference negotiations,
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were provided to Senator McCain;
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Senators Ted Stevens and Thad Cochran, the chairmen of the Appropriations Committee and Defense Appropriations Subcommittee;
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Majority Leader Bill Frist;
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and Senator John Cornyn (CIA records state that Cornyn was not briefed on the CIA’s specific interrogation techniques).
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Meanwhile, a proposal from Senator Carl Levin to establish an independent commission to investigate U.S. detention policies and allegations of detainee abuse resulted in concern at the CIA that such a commission would lead to the discovery of videotapes documenting CIA interrogations. That concern prompted renewed interest at the CIA to destroy the videotapes.
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Senator Levin’s amendment to establish the commission failed on November 8, 2005.
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The CIA destroyed the CIA interrogation videotapes the following day.
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