Authors: Senate Select Committee on Intelligence
Despite the CIA’s previous statements that coercive physical and psychological interrogation techniques “result in false answers”
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and have “proven to be ineffective,”
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as well as the aforementioned early November 2001 determination that “[s]pecific methods of interrogation w[ould] be permissible so long as they generally comport with commonly accepted practices deemed lawful by U.S. courts,”
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by the end of November 2001, CIA officers had begun researching potential legal defenses for using interrogation techniques that were considered torture by foreign governments and a non-governmental organization. On November 26, 2001, attorneys in the CIA’s Office of General Counsel circulated a draft legal memorandum describing the criminal prohibition on torture and a potential “novel” legal defense for CIA officers who engaged in torture. The memorandum stated that the “CIA could argue that the torture was necessary to prevent imminent, significant, physical harm to persons, where there is no other available means to prevent the harm,” adding that “states may be very unwilling to call the U.S. to task for torture when it resulted in saving thousands of lives.”
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An August 1, 2002, OLC memorandum to the White House Counsel includes a similar analysis of the “necessity defense” in response to potential charges of torture.
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In January 2002, the National Security Council principals began to debate whether to apply the protections of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (“Geneva”) to the conflict with al-Qa’ida and the Taliban. A letter drafted for DCI Tenet to the president urged that the CIA be exempt from any application of these protections, arguing that application of Geneva would “significantly hamper the ability of CIA to obtain critical threat information necessary to save American lives.”
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On February 1, 2002—approximately two months prior to the detention of the CIA’s first detainee—a CIA attorney wrote that if CIA detainees were covered by Geneva there would be “few alternatives to simply asking questions.” The attorney concluded that, if that were the case, “then the optic becomes how legally defensible is a particular act that probably violates the convention, but ultimately saves lives.”
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On February 7, 2002, President Bush issued a memorandum stating that neither al-Qa’ida nor Taliban detainees qualified as prisoners of war under Geneva, and that Common Article 3 of Geneva, requiring humane treatment of individuals in a conflict, did not apply to al-Qa’ida or Taliban detainees.
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From the issuance of the MON to early 2002, there are no indications in CIA records that the CIA conducted significant research to identify effective interrogation practices, such as conferring with experienced U.S. military or law enforcement interrogators, or with the intelligence, military, or law enforcement services of other countries with experience in counterterrorism and the interrogation of terrorist suspects.
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Nor are there CIA records referencing any review of the CIA’s past use of coercive interrogation techniques and associated lessons learned. The only research documented in CIA records during this time on the issue of interrogation was the preparation of a report on an al-Qa’ida manual that was initially assessed by the CIA to include strategies to resist interrogation. This report was commissioned by the CIA’s Office of Technical Services (OTS) and drafted by two CIA contractors, Dr. Grayson SWIGERT and Dr. Hammond DUNBAR.
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Both SWIGERT and DUNBAR had been psychologists with the U.S. Air Force Survival, Evasion, Resistance and Escape (SERE) school, which exposes select U.S. military personnel to, among other things, coercive interrogation techniques that they might be subjected to if taken prisoner by countries that did not adhere to Geneva protections. Neither psychologist had experience as an interrogator, nor did either have specialized knowledge of al-Qa’ida, a background in terrorism, or any relevant regional, cultural, or linguistic expertise. SWIGERT had reviewed research on “learned helplessness,” in which individuals might become passive and depressed in response to adverse or uncontrollable events.
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He theorized that inducing such a state could encourage a detainee to cooperate and provide information.
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2. The CIA Renders Abu Zubaydah to a Covert Facility, Obtains Presidential Approval Without Inter-Agency Deliberation
In late March 2002, Pakistani government authorities, working with the CIA, captured al-Qa’ida facilitator Abu Zubaydah in a raid during which Abu Zubaydah suffered bullet wounds. At that time, Abu Zubaydah was assessed by CIA officers in ALEC Station, the office within the CIA with specific responsibility for al-Qa’ida, to possess detailed knowledge of al-Qa’ida terrorist attack plans. However, as is described in greater detail in the full Committee Study, this assessment significantly overstated Abu Zubaydah’s role in al-Qa’ida and the information he was likely to possess.
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On the day that Abu Zubaydah was captured, CIA attorneys discussed interpretations of the criminal prohibition on torture that might permit CIA officers to engage in certain interrogation activities.
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An attorney in CTC also sent an email with the subject line “Torture Update” to
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CTC Legal
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, listing, without commentary, the restrictions on interrogation in the Geneva Conventions, the Convention Against Torture, and the criminal prohibition on torture.
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In late March 2002, anticipating its eventual custody of Abu Zubaydah, the CIA began considering options for his transfer to CIA custody and detention under the MON. The CIA rejected U.S. military custody
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, in large part because of the lack of security and the fact that Abu Zubaydah would have to be declared to the International Committee of the Red Cross (ICRC).
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The CIA’s concerns about custody at Guantanamo Bay, Cuba, included the general lack of secrecy and the “possible loss of control to US military and/or FBI.”
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Rendition to Country ██ was rejected because of the perception that the results of that country’s recent interrogations had been disappointing, as well as the intense interest in Abu Zubaydah from CIA leadership. As ALEC Station wrote, the CIA needed to participate directly in the interrogation, “[n]ot because we believe necessarily we can improve on [Country
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] performance, but because the reasons for the lack of progress will be transparent and reportable up the line.”
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Over the course of four days, the CIA settled on a detention site in Country ██ because of that country’s “
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,” and the lack of U.S. court jurisdiction. The only disadvantages identified by the CIA with detention in Country
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were that it would not be a “USG-controlled facility” and that “diplomatic/policy decisions” would be required.
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As a March 28, 2002, CIA document acknowledged, the proposal to render Abu Zubaydah to Country ██ had not yet been broached with that country’s officials. The document also warned: “[w]e can’t guarantee security. If AZ’s presence does become known, not clear what the impact would be.”
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The decision to detain Abu Zubaydah at a covert detention facility in Country ██ did not involve the input of the National Security Council Principals Committee, the Department of State, the U.S. ambassador, or the CIA chief of Station in Country ██.
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On March 29, 2002, an email from the Office of the Deputy DCI stated that “[w]e will have to acknowledge certain gaps in our planning/preparations, but this is the option the DDCI will lead with for POTUS consideration.”
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That morning, the president approved moving forward with the plan to transfer Abu Zubaydah to Country ██.
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During the same Presidential Daily Brief (PDB) session, Secretary of Defense Rumsfeld suggested exploring the option of putting Abu Zubaydah on a ship; however, CIA records do not indicate any further input from the principals.
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That day, the CIA Station in Country ██ obtained the approval of Country
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’s
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officials for the CIA detention site.
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The U.S. deputy chief of mission in Country ██, who was notified by the CIA Station after Country
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’s leadership, concurred in the absence of the ambassador,
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.
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Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country ██ where he was held at the first CIA detention site, referred to in this summary as “DETENTION SITE GREEN.”
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CIA records indicate that Country ██ was the last location of a CIA detention facility known to the president or the vice president, as subsequent locations were kept from the principals as a matter of White House policy to avoid inadvertent disclosures of the location of the CIA detention sites.
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3. Tensions with Host Country Leadership and Media Attention Foreshadow Future Challenges
The day after the rendition of Abu Zubaydah to DETENTION SITE GREEN, the
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, which was responsible for the security of the detention facility, linked its support for the CIA’s detention site to a request for
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support from the CIA
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. The CIA eventually provided the requested
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support,
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.
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According to CIA cables and internal documents,
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prompted
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to replace
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individuals responsible for supporting the CIA’s detention facility.
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Those officials were replaced by different officials whom the CIA believed were not supportive of the CIA’s detention site.
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Despite considerable effort by the CIA’s Station in Country ██ to retain support for DETENTION SITE GREEN from its new
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partners,
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called for the closing of the CIA detention facility within three weeks.
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Continued lobbying by the chief of Station, however, eventually led Country ██ to reverse this decision, allowing DETENTION SITE GREEN to remain operational.
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On April █, 2002, the CIA Station in Country ██ attempted to list the number of Country ██ officers who, “[t]o the best of Station’s knowledge,” had “knowledge of the presence of Abu Zubaydah” in a specific city in Country
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. The list included eight individuals, references to “various” personnel
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and the “staff” of
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, and concluded “[d]oubtless many others.”
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By April █, 2002, a media organization had learned that Abu Zubaydah was in Country ██, prompting the CIA to explain to the media organization the “security implications” of revealing the information.
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The CIA Station in Country ██ also expressed concern that press inquiries “would do nothing for our liaison and bilateral relations, possibly diminishing chances that [the
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of Country ██] will permit [Abu Zubaydah] to remain in country or that he would accept other [Abu Zubaydah]-like renderees in the future.”
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In November 2002, after the CIA learned that a major U.S. newspaper knew that Abu Zubaydah was in Country ██, senior CIA officials, as well as Vice President Cheney, urged the newspaper not to publish the information.
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While the U.S. newspaper did not reveal Country ██ as the location of Abu Zubaydah, the fact that it had the information, combined with previous media interest, resulted in the decision to close DETENTION SITE GREEN.
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4. FBI Officers Are the First to Question Abu Zubaydah, Who States He Intends to Cooperate; Abu Zubaydah is Taken to a Hospital Where He Provides Information the CIA Later Describes as “Important” and “Vital”
After Abu Zubaydah was rendered to DETENTION SITE GREEN on March ██, 2002, he was questioned by special agents from the Federal Bureau of Investigation (FBI) who spoke Arabic and had experience interrogating members of al-Qa’ida. Abu Zubaydah confirmed his identity to the FBI officers, informed the FBI officers he wanted to cooperate, and provided background information on his activities. That evening, Abu Zubaydah’s medical condition deteriorated rapidly and he required immediate hospitalization. Although Abu Zubaydah was largely unable to communicate because of a breathing tube, he continued to provide information to FBI and CIA officials at the hospital using an Arabic alphabet chart. According to records, the FBI officers remained at Abu Zubaydah’s bedside throughout this ordeal and assisted in his medical care. When Abu Zubaydah’s breathing tube was removed on April 8, 2002, Abu Zubaydah provided additional intelligence and reiterated his intention to cooperate.
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During an April 10, 2002, debriefing session, conducted in the hospital’s intensive care unit, Abu Zubaydah revealed to the FBI officers that an individual named “Mukhtar” was the al-Qa’ida “mastermind” of the 9/11 attacks. Abu Zubaydah identified a picture of Mukhtar provided by the FBI from the FBI’s Most Wanted list. The picture was of Khalid Shaykh Mohammad (KSM), who had been indicted in 1996 for his role in Ramzi Yousef’s terrorist plotting to detonate explosives on 12 United States-flagged aircraft and destroy them mid-flight over the Pacific Ocean.
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Abu Zubaydah told the interrogators that “Mukhtar” was related to Ramzi Yousef, whom Abu Zubaydah said was in an American jail (Yousef had been convicted for the aforementioned terrorist plotting and was involved in the 1993 World Trade Center terrorist attack).
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