A. August 1, 2002, OLC Memorandum Relies on Inaccurate Information Regarding Abu Zubaydah

¶The Office of Legal Counsel (OLC) in the Department of Justice wrote several legal memoranda and letters on the legality of the CIA's Detention and Interrogation Program between 2002 and 2007. The OLC requested, and relied on, information provided by the CIA to conduct the legal analysis included in these memoranda and letters. Much of the information the CIA provided to the OLC was inaccurate in material respects.

¶On August 1, 2002, the OLC issued a memorandum advising that the use of the CIA's enhanced interrogation techniques against Abu Zubaydah would not violate prohibitions against torture found in Section 2340A of Title 18 of the United States Code.²²⁹⁶²²⁹⁶ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, August 1, 2002, Interrogation of al Qaeda Operative (DTS #2009-1810, Tab 1). Also on August 1, 2002, OLC issued an unclassified, but non-public, opinion, from Deputy Assistant Attorney General John Yoo to White House Counsel Alberto Gonzales analyzing whether certain interrogation methods violate 18 U.S.C. §§ 2340-2340A.Show full note The techniques were: (1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard. The memorandum relied on CIA representations about Abu Zubaydah's status in al-Qa'ida, his role in al-Qa'ida plots, his expertise in interrogation resistance training, and his withholding of information on pending terrorist attacks.²²⁹⁷²²⁹⁷ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, August 1, 2002, Interrogation of al Qaeda Operative (DTS #2009-1810, Tab 1). The OLC memorandum included the following statement about OLC's reliance on information provided by the CIA:

"Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply."²²⁹⁸²²⁹⁸ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, August 1, 2002, Interrogation of al Qaeda Operative (DTS #2009-1810, Tab 1). During a 2008 hearing of die Senate Select Committee on Intelligence, dien-Acting Assistant Attorney General Steven Bradbury stressed that the OLC's opinions relied on factual representations made by the CIA. As Bradbury testified, "all of our advice addressing the CIA's specific interrogation methods has made clear that OLC's legal conclusions were contingent on a number of express conditions, limitations and safeguards adopted by the CIA and designed to ensure that the program would be administered by trained professionals with strict oversight and controls, and that none of the interrogation practices would go beyond the bounds of the law." When asked whether information could be elicited from detainees using techniques authorized by the Army Field Manual, Bradbury responded, "I will have to defer, because on those kinds of questions in terms of the effectiveness and the information obtained I have to rely on the professional judgment of the folks involved at the agency, and General [Michael] Hayden I think has spoken to this issue before this Committee." (See transcript of hearing of the Senate Select Committee on Intelligence, June 10, 2008 (DTS #2008-2698).) General Hayden's representations to the Committee are described elsewhere in this summa^an^i^re|itei^etm me II.Show full note

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¶T h e f a c t s provided by the CIA, and relied on by the OLC to support its legal analysis, were cited in the August 1, 2002, memorandum, and many were repeated in subsequent OLC memoranda on the CIA's enhanced interrogation techniques. Much of the information provided by the CIA to the OLC was unsupported by CIA records. Examples include:

Abu Zubaydah's Status in Al-Qa'ida: The OLC memorandum repeated the CIA's representation that Abu Zubaydah was the "third or fourth man" in al-Qa'ida.²²⁹⁹²²⁹⁹ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, August 1, 2002, Interrogation of al Qaeda Operative (DTS #2009-1810, Tab 1). This CIA assessment was based on single-source reporting that was recanted prior to the August 1, 2002, OLC legal memorandum. This retraction was provided to several senior CIA officers, including [Redacted] C Legal, to whom the information was emailed on July 10, 2002, three weeks prior to the issuance of the August 1, 2002, OLC memorandum.²³⁰⁰²³⁰⁰ Email from: [Redacted] to: [Redacted] with multiple cc's; subject: AZ information; date: July 10, 2002, at 1:18:52 PM. This claim was included in subsequent OLC memoranda. See Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, May 30, 2005, Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May be Used in the Interrogation of High Value Al Qaeda Detainees (DTS #2009-1810, Tab 11).Show full note The CIA later concluded that Abu Zubaydah was not a member of al- Qa'ida.²³⁰¹²³⁰¹ CIA Intelligence Assessment, August 16, 2006, "Countering Misconceptions About Training Camps in Afghanistan, 1990-2001."

Abu Zubaydah's Role in Al-Qa'ida Plots: The OLC memorandum repeated the CIA's representation that Abu Zubaydah "has been involved in every major terrorist operation carried out by al Qaeda,"²³⁰²²³⁰² Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, August 1, 2002, Interrogation of al Qaeda Operative (DTS #2009-1810, Tab 1). This claim was included in subsequent OLC memoranda. See Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, May 30, 2005, Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May be Used in the Interrogation of High Value Al Qaeda Detainees (DTS #2009-1810, Tab 11).Show full note and that Abu Zubaydah "was one of the planners of the September 11 attacks."²³⁰³²³⁰³ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, August 1, 2002, Interrogation of al Qaeda Operative (DTS #2009-1810, Tab 1). CIA records do not support these claims.

Abu Zubaydah's Expertise in Interrogation Resistance Training: The OLC memorandum repeated the CIA's representation that Abu Zubaydah was "well-versed" in resistance to interrogation techniques, and that "it is believed Zubaydah wrote al Qaeda's manual on resistance techniques."²³⁰⁴²³⁰⁴ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, August 1,2002, Interrogation of al Qaeda Operative (DTS #2009-1810, Tab 1). A review of CIA records found no information to support these claims. To the contrary, Abu Zubaydah later stated that it was his belief that all

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individuals provide information in detention, and that captured individuals should "expect that the organization will make adjustments to protect people and plans when someone with knowledge is captured."²³⁰⁵²³⁰⁵ 110496 [Redacted] (162014Z FEB 03)

Abu Zubaydah's Withholding of Information on Pending Terrorist Attacks: The OLC memorandum repeated CIA representations stating that "the interrogation team is certain" Abu Zubaydah was withholding information related to planned attacks against the United States, either within the U.S. homeland or abroad.²³⁰⁶²³⁰⁶ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, August 1, 2002, Interrogation of al Qaeda Operative (DTS #2009-1810, Tab 1). CIA records do not support this claim. Abu Zubaydah's interrogation team was not "certain" that Abu Zubaydah was withholding "critical threat information." To the contrary, the interrogation team wrote to CIA Headquarters: "[o]ur assumption is the objective of this operation [the interrogation of Abu Zubaydah] is to achieve a high degree of confidence that [Abu Zubaydah] is not holding back actionable information concerning threats to the United States beyond that which [Abu Zubaydah] has already provided."²³⁰⁷²³⁰⁷ [REDACTED] 73208 (231043Z JUL 02); email from: [Redacted] to: [REDACTED], [REDACTED], [Redacted] subject: Addendum from [DETENTION SITE GREEN], [REDACTED] 73208 (231043Z JUL 02); July 23, 2004, at 07:56:49 PM. See also email from: [REDACTED]; to: [REDACTED]; subject: Re: [SWIGERT and DUNBAR]: date: August 8, 21,2002, at 10:21 PM.