Committee Study of the Central Intelligence Agency's Detention and Interrogation Program · 2014
Acce.ss to Documents
Acce.ss to Documents
¶Study Claim: [Redacted] "The CIA subsequently resisted efforts by then-
Vice Chairman John D. Rockefeller, IV, tc investigate the program, including by refusing in 2006 to provide requested documents."421 SSCI Study, Findings and Conclusions, December 3, 2014, pp. 5-6.
¶Fact: [Redacted] > The CIA provided access to the documents requested.
¶[Redacted] The Study asserts that the CIA refused to provide requested documents. However, this misrepresents both the Vice Chairman's document request and the Intelligence Community's response. As noted in the Study, on January 5, 2006, the Director of National Intelligence's Chief of Staff wrote a letter to Vice Chairman Rockefeller which denied an earlier request for full Committee access to over 100 documents related to the Inspector General's May 2004 Special Review.422 SSCI Study, Executive Summary, December 3, 2014, p. 442. However, this denial of "full Committee access," did not mean that the documents were not made available to the CIA's congressional overseers. In fact, the Chief of Staffs letter stated, "Consistent with the provisions of the National Security Act of 1947, the White House has directed that specific information related to aspects of the detention and interrogation program be provided only to the SSCI leadership and staff directors."423 Letter from David Shedd to Andy Johnson, January 5, 2006 (DTS 2006-0373). The letter concluded by advising Vice Chairman Rockefeller that the documents "remain available for review by SSCI leadership and staff directors at any time through arrangements with CIA's Office of Congressional Affairs."424 Letter from David Shedd to Andy Johnson, January 5, 2006 (DTS 2006-0373).
¶Breadth of Congressional Access
¶Study Claim: [Redacted] The CIA impeded congressional oversight by
restricting access to information about the Program from members of the Committee beyond the Chairman and Vice Chairman.425 SSCI Study, Findings and Conclusions, December 3, 2014,,P- 6.
¶Fact: f F [Redacted] F ) The CIA's limitation of access to sensitive covert
action information is a long-standing practice codified in Section 503 of the National Security Act of 1947, as amended.
¶[Redacted] The Study notes numerous times that the CIA refused to provide information on its Detention and Interrogation Program to Committee members and staff426 SSCI Study, Executive Summary, December 3,2014, pp. 439-441. The underlying assertion is that the CIA's restriction of access to the Chairman and Vice Chairman somehow constituted an attempt to avoid or impede congressional oversight of the Program. This is simply untrue. According to section 503(c)(2) of the National Security Act of 1947, as amended:
632If the president determines that it is essential to limit a c c e s s to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding m a y b e reported to the chairmen and ranking minority m e m b e r s o f the c o n g r e s s i o n a l intelligence committees, the Speaker and minority leader of the H o u s e of Representatives, the majority and minority leaders of the Senate, and such other m e m b e r or members of the congressional leadership as may b e included by the President.
¶T h e C I A ' s d e c i s i o n to limit the briefing of this particularly sensitive covert action program to the Chairman and V i c e Chairman w a s in keeping with customary practice and c o m p l i e d with the law. The C o m m i t t e e has conducted oversight o f other sensitive covert action programs under similar a c c e s s limitations and continues to do s o at this time.
¶f F [Redacted] F ) The Study notes that the C I A briefed a number of additional senators w h o were not on the Select C o m m i t t e e on Intelligence. 4 2 7 A s cited a b o v e , the law a l l o w s the President discretion to provide senators with information about covert action programs at his discretion, without regard to C o m m i t t e e membership. Moreover, providing a briefing to inform key senators working on legislation relevant to the C I A ' s program is inconsistent with the narrative that the CIA sought to avoid congressional scrutiny.
¶Conclusion 7 (CIA Impeded While House Oversight)
¶C o n c l u s i o n 7 states, "[t]he CIA impeded e f f e c t i v e W h i t e H o u s e oversight and d e c i s i o n - m a k i n g . " 4 2 8 It is important to place this serious allegation within its proper c o n t e x t — the C I A ' s D e t e n t i o n and Interrogation Program was c o n d u c t e d as a covert action 4 2 9 Covert action is the sole responsibility of the White H o u s e , a principle enshrined in law since the National Security A c t of 1 9 4 7 . 4 3 u The President, w o r k i n g with his National Security Staff, approves and o v e r s e e s all covert action programs. T h e congressional intelligence c o m m i t t e e s also c o n d u c t o n g o i n g oversight of all covert actions and receive quarterly covert action briefings. G i v e n this e x t e n s i v e covert action oversight regime, this c o n c l u s i o n s e e m s to imply falsely that the C I A w a s operating a rogue intelligence operation d e s i g n e d to "impede" the W h i t e House. W e reject this unfounded implication and it appears the C I A has rejected it as w e l l :
633¶TOP T E C I T E T / . W B M M M H M ^ A ' C R O R ^
While we were able to find points in the preceding themes with which to both agree and disagree, the Study seems to most seriously diverge from the facts and, indeed, from simple plausibility in its characterizations of the manner in which CIA dealt with others with regard to the RDI program. The Study would have the reader believe that CIA 'actively' avoided and interfered with oversight by the Executive Branch and Congress . . . [and] withheld information from the President....
We would observe that, to accomplish this, there would have had to have been a years-long conspiracy among CIA leaders at all levels, supported by a large number of analysts and other line officers. This conspiracy would have had to include three former CIA Directors . . . .
We cannot vouch for every individual statement that was made over the years of the program, and we acknowledge that some of those statements were wrong. But the image portrayed in the Study of an organization that-on an institutional scale- intentionally misled and routinely resisted oversight from the White House, the Congress, the Department of Justice, and its own OIG simply does not comport with the record. . ..
[The] CIA did not, as the Study alleges, intentionally misrepresent to anyone the overall value of the intelligence acquired, the number of detainees, the propensity of detainees to withhold and fabricate, or other aspects of the program.431 CIA Study Response, Comments (TAB A), June 27, 2013, pp: 15-16 (emphasis in original).
¶Our analysis of the documentary record demonstrates that most of the CIA's representations about the Detention and Interrogation Program were accurate.
¶Executive Branch Oversight
¶Study Claim: f F S [Redacted] l i ) "According to CIA records, no CIA officer, up
to and including CIA Directors George Tenet and Porter Goss, briefed the President on the specific CIA enhanced interrogation techniques before April 2006. By that time, 38 of the 39 detainees identified as having been subjected to the CIA's enhanced interrogation techniques had already been subjected to the techniques."432 SSCI Study, Findings and Conclusions, December 3, 2014, p. 6.
¶Fact: (U) CIA records are contradictory and incomplete regarding when the
President was briefed, but President Bush himself says he was briefed in 2002, before any techniques were used.433 George W. Bush. Decision Points. Broadway Paperbacks, New York, 2010, p. 169.
¶[Redacted] The Study finds that the CIA "impeded" executive branch oversight, not just by withholding information about the Program, but by providing inaccurate urn 111 in i B i W I H I i M W i B f t H l minimi information about its operation and effectiveness. Beginning with the premise that the Cf A did not obtain approval from the President or the National Security Council prior to using enhanced interrogation techniques on Abu Zubaydah, the Study identifies records that cast some doubt on whether the President was briefed before April 2006.434 See, e.g., SSCI Study, Findings and Conclusions, December 3, 2014, p. 18 n.17. SSCI StudyExecutive Summary, December 3, 2014, pp. 38-40. However, CIA records are inconsistent on this point.
634¶[Redacted] program, dated April 2008, lists a meeting held on August 1, 2002, between the President and the Deputy Director of the CIA concerning the "Next Phase of the Abu Zubaydah Interrogation," which strongly suggests that the President had been briefed on the interrogation. Another undated chronology, however, notes that, according to a July 31, 2002, memorandum, the National Security Council communicated to the CIA that the President would not be briefed.435 Chronology of Renditions, Detainees and Interrogations Program and Interrogation Approvals: 2001-2008. undated; see also April 3, 2014, SSCI Study, Executive Summary, December 3, 2014, p. 40 n. 179. An Inspector General interview with former DCI Tenet also suggests that he did not brief the President on enhanced interrogation techniques (EITs). Tenet said "he had never spoken to the President regarding EITs, nor was he aware of whether the President had been briefed by his staff."436 Office of the General Counsel. Comments on the Inspector General, Special Review, Counterterrorism Detention and Interrogation Activities (September 2001 - October 2003), May 7, 2004 (DTS 2004-2710). An interview of the former Director or his staff, or a review of Director Tenet's e-mail communications and those of his staff, might also have helped clarify this point.
¶Since no interviews were conducted and since—as we learned during the course of our review of the Study material—the majority never requested e-mail communications from Director Tenet or other senior CIA leaders, such a clarification was impossible. In fact, as noted earlier, we learned that the majority did not request the e-mail communications of any senior CIA leaders who likely would have discussed the Program with the President—not Director Tenet, Director Goss, Deputy Director McLaughlin, Director of Operations Pavitt, Director of Operations Kappes, Director of the Counterterrorism Center Bob Grenier, and many others. Because of this gap in emails from critical participants, the majority's document review is incomplete. In the absence of interviews and with the gap in documents, the Study's reliance oh the CIA records it did review, therefore, is simply not definitive on whether the President was briefed on the use of interrogation techniques on Zubaydah. Yet the Study interprets the absence of clarity on this point as confirmation that the CIA must have withheld information from the President.
¶There is at least one person, however, who disputes this mutative and says that the President was briefed and approved the use of enhanced techniques on Zubaydah—President George W. Bush. In his book, Decision Points, the President has a different recollection than Director Tenet. The President recalls being told that Abu Zubaydah was withholding information; that "CIA experts drew up a list of interrogation techniques that differed from those Zubaydah had successfully resisted ;" and that "Department of Justice and CIA lawyers conducted a careful legal review."437 Bush, p. 169, He describes looking at the list of techniques, including waterboarding, and approving their use, while directing the CTA not to use two of thern that he "felt went too far, even if they were legal/'438 Bush, p. 169. President Bush also confirms that he approved the use of enhanced interrogation techniques, including the waterboard, on KSM439 Bush, p. 170, ("George Tenet asked if he had permission to use enhanced interrogation techniques, including waterboarding, on Khalid Sheikh Mohammed. 1 thought about my meeting with Danny Pearl's widow, who was pregnant with his son when he was murdered- I thought about the 2,973 people stolen from their families by al Qaeda on 9/11. And I thought about mv duty to protect the country from another act of tenor. 'Damn right,' I said"). So while the Study assumes the President did not give his approval prior to the use of enhanced techniques on Abu Zubaydah because the majority cannot find CIA records that unequivocally say when and how it happened, the President's own words set the record su-aight.440 The CIA Study response also made reference to President Bush's autobiography, noting that "he discussed the program, including the use of enhanced techniques, with then (DCI [Tenet in 2002, prior to the application of the techniques on Abu Zubaydah, and personally approved the techniques." CIA Study Response, Conclusions, p. 6. The Study chooses to rebut President Bush's recollections of these events by stating, "A memoir by former Acting CIA General Counsel John Rizzo disputes the President's autobiographical account." SSCI Study, Findings and Conclusions, December 3, 2014, p. 18 nl7. Again, further clarification of these events was hampered by the lack of witness interviews.
635¶[Redacted] Regardless, even if it were true that the President had not been briefed by the CIA, we find it odd that the Study would assign blame for "withholding information" to the CIA, when the Study itself acknowledges the role of officials outside the CIA in making determinations about what should be briefed to policymakers. For example, the Study correctly notes that the description of the waterboard was removed from the 2002 Deputy DCI (DDCI) talking points for the meeting with the President, but its account of why this change was made is misleading.441 SSCI Study, Executive Summary, December 3,2014, p. 38. In describing an e-mail regarding the planned briefing, the Study states that "per an agreement between DCI Tenet and White House Counsel Gonzales, the briefing would include no 'further details about the interrogation techniques than those in the (revised) talking points."'442 SSCI Study, Volume I, March 31, 2014, p. 135. In reality, the e-mail says that the "WH asks that DDCI brief POTUS tomorrow at 0800 meeting without any further details about the interrogation techniques than those in the talking points."443 CIA, E-maii to DDCI, dated July 31, 2002, Briefing of POTUS tomorrow (1 Aug) re AZ interrogation. Thus, it was at the request of the White House—not the CIA, that only a broad description of the nature of the techniques would be provided; specifically, that the "techniques incorporate mild physical pressure, while others may place Abu Zubaydah in fear for his life" and they "include an intense physical and psychological stressor used by the U.S. Navy in its interrogation resistance training for the Navy SEALS."444 DDCI Talking Points for Meeting with the President, 31 July 2001 (sic).
¶Accuracy of Information Provided
¶Study Claim: f F [Redacted] F } "The information provided connecting the
636CIA's detention and interrogation program directly to [the "Dirty Bomb" Plot/Tall Buildings Plot, the Karachi Plots, Heathrow and Canary Wharf
Plot, and the Identification/Capture of Iyman Faris] was, to a great extent, inaccurate."445 SSCI Study, April 1, 2014, Volume II, p. 446.
¶Fact: (U) The information provided to the White House attributing the arrests of
these terrorists and the thwarting of these plots to the CIA's Detention and Interrogation Program was accurate.
¶The Study accuses the CIA of providing inaccurate information to the White House and the National Security Council Principals about the Program and its effectiveness. Pivotal to this allegation is a July 29, 2003, briefing that the CIA Director and General Counsel had with executive branch officials, including the Vice President, the National Security Advisor, the White House Counsel, and the Attorney General. According to the six-page memorandum for the record prepared by the CIA General Counsel on August 5, 2003, the purpose of the meeting was to "discuss current, past and future CIA policies and practices concerning the interrogation of certain detainees held by CIA,"446 CIA General Counsel Memorandum for the Record, August 5, 2003, Review of Interrogation Program on 29 July 2003.
¶[Redacted] The Study notes that the memorandum provided four of the eight "most frequently cited examples from 2002-2009" as evidence of the effectiveness of CIA's interrogation program, including: "the 'dirty bomb' plot/tall buildings plot (also referenced as the Capture of Jose Padilla), the Karachi Plots, the Heathrow and Canary Wharf Plot, and the Identification/Capture of Iyman Faris."447 SSCI Study, Volume II, April 1, 2014, p. 446. While the Study asserts, "the information provided connecting the CIA's detention and interrogation program directly to the above disruptions and captures was, to a great extent, inaccurate," we found that the examples provided were, in fact, accurate.448 See supra, The Thwarting of the Dirty Bomb/Tall Buildings Plot and the Capture of Jose Padilla, pp. 33-36; The Thwarting of the Karachi Plots, pp. 45-47; The Heathrow and Canary Wharf Plots, pp. 47-50; and The Arrest and Prosecution of Iyman Faris, pp. 58-61.
¶Conclusion 8 (CIA Impeded National Security Missions of Executive Branch Agencies)
¶Conclusion 8 states, "|t |he CIA's operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch agencies."449 SSCI Study, Findings and Conclusions, December 3, 2014, p. 7. 105 f T [Redacted] F ) The standard by which the Study claims the CIA "impeded" national security missions of other executive branch agencies is based entirely on subjective standards (hat are never defined in the text. Equally problematic are statements that the CIA blocked or denied requests for information from other executive branch agencies. By inference this implies the President and the National Security Council did not control access to the covert action program. However, the September 17, 2001, Memorandum of Notification authorizing the detainee program, states: "Approval of the Principals shall be sought in advance whenever feasible with respect to such operations "4S0 As noted in the CIA response to the Study, "the National Security Council established the parameters for when and how CIA could engage on the program with other executive branch agencies."451 CIA Study Response, Comments (TAB A). June 27, 2013, p. 11. 4:,r The CIA was not responsible nor did it have control over the sharing or dissemination of information to other executive branch agencies or members of the Principals Committee itself. That responsibility rested solely with the White House.
637¶Access to the Covert Action Program
¶Study Claim: f F [Redacted] F ) "The CIA blocked State Department leadership
from access to information crucial to foreign policy decision-making and diplomatic activities."452 SSCI Study, Findings and Conclusions, December 3, 2014. p. 7.
¶Fact: [Redacted] The National Security Staff controlled access to
the covert action program and there is no evidence that the CIA refused to brief State Department leadership when directed.
¶[Redacted] The Study does not provide any evidence that the CIA deliberately impeded, obstructed or blocked the State Department from obtaining information about the Program inconsistent with directions from the White House or the National Security Council. In fact, the Study acknowledges that CIA officers were in close and constant contact with their State Department counterparts where detention facilities were located and among senior leadership to include the Secretary of State and the U.S. Deputy Secretary of State. For example, leading to the establishment of a facility in Country[Redacted] the Study notes that the chief of station (COS) was coordinating activities with the ambassador. Because the Program was highly compartmented, the ambassador was directed by the National Security Council not to discuss with his immediate superior at headquarters due to the highly compartmented nature of the covert action. Instead, the COS, sent feedback from the ambassador through CIA channels, to the NSC, whereby the Deputy Secretary of State with the knowledge of the Secretary, would discuss any issues or concerns with the ambassador in country.453 [Redacted] a c a b l e [Redacted] c [Redacted] A CABLI [Redacted]CIA CAB[Redacted] While the process was less direct, the security precautions to protect sensitive information did not impede the national security mission of the State Department.
¶CIA Denied FBI Requests
¶Study Claim: [Redacted] "The CIA denied specific requests from FBI
638Director Robert Mueller, HI, for FBI access to CIA detainees that the FBI believed was necessary to understand CIA detainee reporting on threats to the U.S. Homeland."454 SSCI Study, Findings and Conclusions, December 3, 2014, p. 7.
¶Fact: While the FBI's participation in the
interrogation of detainees was self-proscribed, the Bureau was still able to submit requirements to the CIA and received reports on interrogations.
¶C-[Redacted][Redacted]^ 1 ) This Study claim appears to focus on FBI access to KSM in 2003 after FBI Director Mueller read an intenogation report that vaguely referenced possible threats to New York, Washington, DC, Chicago, Dallas, and San Francisco.455 SSCI Study, Volume I, M a r c h 3 1 ^ 0 1 4 ^ 4 1 4 . However, the Study acknowledges the FBI's fear that the use of enhanced techniques activity would place FBI agents at future legal risk if they participated in interrogations.456 Email from: James Pavitt; to: [Redacted] s u b j e c t : R e . Mueller's Interest in FBI Access to KSM; Date- April 24, 2003, 2:35 PM. Recognizing the need for FBI access to detainees, bothaggngigs finalized a memorandum of understanding in the fall of 2003
¶FBI [Redacted] agents would be provided access to detainees [Redacted]
¶The ODNI was Provided with Inaccurate and Incomplete Information
¶Study Claim: [Redacted] 'The ODNI was provided with inaccurate and
incomplete information about the program, preventing the ODNI from effectively carrying out its statutory responsibility to serve as the principal advisor to the President on intelligence matters."458 SSCI Study, Findings and Conclusions, December 3,2014, p. 8.
¶Fact: [Redacted] > The Study incorrectly claims that inaccurate
information was provided to the Office of the Director of National Intelligence.
¶The updated Study treats this claim differently than it did in the version that was adopted by the Committee during the 112th Congress. The original Study sought to dispute claims regarding the use of enhanced interrogation techniques and disruption of several plots. However, the updated Study drops the direct reference to coercive measures and instead focuses on the Detention and Interrogation Program in general459 SSCI Study, Findings and Conclusions, December 3, 2014, p. 8. The 2006 press release from the Office of Director of National Intelligence460 ODNI Press Release, September 6, 2006, "Information on the High Value Terrorist Detainee Program." does not reference the use of enhanced interrogation techniques, but states unequivocally: "The detention of terrorists disrupts—at least temporarily—the plots they were involved in." To claim that the detention and interrogation of terrorists did not yield intelligence of value is simply not credible.
¶Conclusion 5 (CIA Provided Inaccurate Information to the Department of Justice)
¶Conclusion 5 states, "[t]he CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the CIA's detention and Interrogation
639¶Program." Our analysis of the claims used in support of this c o n c l u s i o n revealed that many or the S t u d y ' s c l a i m s w e r e t h e m s e l v e s inaccurate or otherwise without merit.
¶"Novel" Use of the Necessity Defense
¶Study Claim: [Redacted] "CIA attorneys stated that 'a novel application
of using the necessity defense' could be used 'to avoid prosecution of U.S. officials who tortured to obtain information that saved many lives."'462 SSCI Study, Findings and Conclusions, December 3, 2014. p. 5.
¶Fact: ( T [Redacted] ) The draft CIA Office of General Counsel (OGC)
legal appendix cited by the report contained a cursory discussion of the necessity defense that did not support the use of such defense in the context of the CIA's Detention and Interrogation Program.463 See CIA Office of General Counsel draft Legal Appendix: Paragraph 5-Hostile Interrogations: Legal Considerations for CIA Officers, November 26, 2001, pp. 5-6 (CIA. Draft Appendix on Necessity Defense). This document is attached as Appendix IV, see infra, p. IV-1.
¶T h i s particular c l a i m appears to be a remnant from what had b e e n "Conclusion 2" in the original version of the Study approved by the S S C I during the 1I2 l h Congress. Our original minority v i e w s w e r e very critical o f the claims made in support o f the "necessity d e f e n s e " c o n c l u s i o n . W e w e r e pleased to see that the original "Conclusion 2" w a s dropped from the c o n c l u s i o n s in the updated version o f the Study; h o w e v e r , w e are disappointed to see this factually and legally incorrect claim repeated here in support o f a c o n c l u s i o n alleging that the C I A provided inaccurate information to the Department of Justice.
¶T h i s c l a i m advances the faulty proposition that a "novel application" o f the necessity d e f e n s e c o u l d be used by participants in the C I A ' s Detention and Interrogation Program to avoid criminal liability. O n its face, this claim leaves the reader with the f a l s e impression that CIA attorneys endorsed the possible use of the "necessity" d e f e n s e in the c o n t e x t o f the C I A ' s D e t e n t i o n and Interrogation Program, when, in fact, the draft legal appendix cited by the Study 4 6 4 actually reached the opposite c o n c l u s i o n 4 6 5
¶[Redacted] Contrary to the S t u d y ' s claim, the legal analysis provided in the cited draft l e g a l appendix did not support the use o f the necessity d e f e n s e in the context of the C I A ' s program. T h e Study achieved this erroneous result by m o d i f y i n g the f o l l o w i n g original quote that it cherry picked from the legal analysis: "It w o u l d , therefore, be a novel application of the necessity d e f e n s e to avoid prosecution o f U.S. o f f i c i a l s w h o tortured to obtain information that s a v e d many lives " 4 6 6 S p e c i f i c a l l y , the Study m o d i f i e d this quote by separating portions o f the text and inserting its o w n factually misleading text, w h i c h w a s not supported by the legal analysis, to achieve the f o l l o w i n g result: "CIA attorneys stated that a novel application of the necessity defense could he used to avoid prosecution of U.S. officials who tortured to obtain information that saved lives."467 SSCI Study, Findings and Conclusions, December 3, 2014, p. 5 (Erroneous text indicated by italics). Fortunately, this erroneously doctored quotation only appears once in the Study—in this Conclusion.
640¶f F S ^ H ^ H H H ^ t F ) The Study does, however, cite the original "novel application" quotation in at least 12 different places in its updated report to support its incorrect assertion that CIA attorneys viewed necessity "as a defense" or as a "potential legal defense."468 See SSCI Study. Executive Summary, December 3, 2014. pp. 19 and 179: SSCI Study, Volume I, March 31, 2014, pp. 55, 220, 255, 262 n.1700, and 283 n.1854; SSCI Study, Volume II, April 1,2014, pp. 28, 316, and 1753 and SSCI Study, Volume III, March 31, 2014,, pp. 1179 and 1723 n.10679. While this quotation is technically accurate, it is consistently removed from its context within the legal analysis to create the false impression that the defense of necessity might have been available to CIA employees engaged in interrogation activities. The legal appendix clearly conceded that since "U.S. courts have not yet considered the necessity defense in the context of torture/murder/assault cases. . . [i]t would, therefore, be a novel application of the necessity defense to avoid prosecution "469 CIA, Draft Appendix on Necessity Defense, p. 6. When the "novel application" quote is placed back into its proper original context, it becomes clear that the legal analysis did not conclude that the necessity defense could be used to avoid prosecution. The use of the word "novel" in this context clearly suggests the drafting attorney viewed the approach as problematic.470 The CIA confirmed that the use of "novel" in the context of this document meant tenuous' or "untested," because U.S. courts had not accepted such an argument. See CIA Study Response, Comments, p. 7 and CIA Study Response, Conclusions, pp. 4-5.
¶[Redacted] entitled, "The Origins of CIA Representations Regarding the Effectiveness of the CIA's Enhanced Interrogation Techniques As Having "Saved Lives," "Thwarted Plots" and "Captured Terrorists."471 SSCI Study, Executive Summary. December 3, 2014, p. 179. In that section, the Study cites to the "novel application" of the necessity defense contained in the draft legal appendix. This "Origins" section, when combined with the erroneous necessity defense claim made here, appears to have been designed to guide the reader into falsely inferring that the CIA represented that the enhanced interrogation techniques were necessary to acquire "otherwise unavailable" intelligence that "saved lives" because of the draft legal appendix's discussion of the necessity defense.
¶There are a number of problems with this false inference. If this inference is based simply on the fact that the CIA's representations were made after the circulation of the draft legal appendix's discussion of the necessity defense, then the claim is little more than a classic example of "post hoc " erroneous reasoning. Simply put, just because the CIA represented that the Program saved lives does not mean that such representations were caused by the draft legal appendix.
¶[Redacted] It seems unlikely that the single appearance of the phrase "saved many lives" in the context of the draft legal appendix's discussion of the necessity defense was the reason behind the use of similar terminology in subsequent accounts of the Program. Aside from the false inference made in the "Origins" section, there is no evidence to support this leap of logic.
641¶necessity defense did not apply in the context of the CIA's Detention and'Interrogation Program, Therefore, this false inference—that the CIA's representations regarding the "otherwise unavailable intelligence" that "saved lives" were the result of efforts to preserve the necessity defense—does not make sense because the draft legal appendix had already concluded that the necessity defense raised in the context of a torture prosecution was unlikely to succeed in a U.S. court.
¶In this conclusion, the Study appears to buttress its argument about the applicability of the necessity defense in the context of the CIA's Detention and Interrogation Program by noting that OLC included a discussion of the "necessity defense" in its August 1, 2002, memorandum to the White House.472 SSCI Study, Findings and Conclusions, December 3, 2014, p. 5 (citing DOJ, Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, DOJ. to Alberto R. Gonzales. Counsel to the President, re: Standards of Conduct for Interrogation. August 1,2002). That memorandum opinion stated: "under the current circumstances, necessity or self-defense may justify interrogation methods that might violate" the criminal prohibition against torture.473 DOJ, Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, DOJ, to Alberto R. Gonzales, Counsel to the President, re: Standards of Conduct for Interrogation, August 1, 2002, p. 46 (emphasis added). Not surprisingly, this August 1, 2002, memorandum opinion was withdrawn in June 2004 and formally superseded in its entirety on December 30, 2004. Specifically, the superseding memorandum stated, "Because the discussion in that memorandum concerning the President's Commander-in-Chief power and the potential defenses to liability was—and remains—unnecessary, it has been eliminated from the analysis that follows."474 DOJ, Memorandum from Daniel Levin, Acting Assistant Attorney General. Office of Legal Counsel, to James B. Comey, Deputy Attorney General, Re: Legal Standards Applicable under 18 U.S.C, §§ 2340-2340A, December 30, 2004, p. 2. Although the Study acknowledges this subsequent withdrawal of the necessity defense analysis in a footnote475 SSCI Study, Executive Summary, December 3, 2014, p. 181 n.1069. it suggests that OLC included its discussion of the necessity defense at the request of the CI A476 See SSCI Study, Executive Summary, December 3, 2014, p. 181.
¶The August 1, 2002, memorandum opinion, however, did finally conclude with the somewhat more definitive statement: "even if an interrogation method might violate [the criminal prohibition against torture], necessity or self-defense could provide justifications that would eliminate any criminal liability."477 SSCI Study, Executive Summary, December 3,2014, p. 180 n.1065 (citing DOJ, Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, DOJ, to Alberto R. Gonzales, Counsel to the President, re: Standards of Conduct for Interrogation, August 1, 2002, p. 46). Regardless, the Study's apparent reliance upon this withdrawn OLC opinion is misplaced, because it actually seems to undermine its conclusion that the CIA provided inaccurate information to the Department of Justice. Assuming for the sake of argument that the CIA provided OLC with a copy of its legal analysis on the necessity defense— which seems highly unlikely—the CIA legal opinion was correct about necessity being a "novel" application, while the OLC opinion reached a different result by concluding incorrectly that the defense of necessity would eliminate criminal liability.
642¶Accuracy of Claims about Abu Zubaydah
¶Study Claim: The OLC "relied on inaccurate CIA
representations about Abu Zubaydah's status in al-Qa'ida and the interrogation team's 'certain[ty]' that Abu Zubaydah was withholding information about planned terrorist attacks."478 SSCI Study, Findings and Conclusions, December 3, 2014, p. 5.
[Redacted] The CIA assessment that Abu Zubaydah was the "third or fourth man" in al-Qa'ida was "based on single-source reporting that was recanted prior to the August 1,2002, OLC memorandum."479 SSCI Study, Executive Summary, December 3,2014, p. 410.
[Redacted] "The CIA later concluded that Abu Zubaydah was not a member of al-Qa'ida."480 SSCI Study, Executive Summary, December 3, 2014, p. 410.
¶Fact: [Redacted] The information relied upon by the Study to
criticize the CIA's representations about Abu Zubaydah withholding of information about planned terrorists attacks neglected to include important statements from within that same intelligence cable, which supported those representations by the CIA.
[Redacted] The CIA was in possession of multiple threads of ; Abu Zubaydah's prominent role in al-Qa'ida. The [Redacted] [Redacted]
[Redacted] The level of detail that the detainee had previously provided about Abu Zubaydah undermined his later attempts to retract his earlier admissions about his involvement in future terrorist attacks [Redacted] and his denials about meeting with Abu Zubaydah.
[Redacted] The Study's incredible assertion that the "CIA later concluded that Abu Zubaydah was not a member of al-Qa'ida" is factually incorrect.
¶[Redacted] On August 1, 2002, the OLC provided the CIA with a memorandum on its legal analysis of the application of enhanced interrogation techniques to Abu Zubaydah. The Study asserts that "[m]uch of the information provided by the CIA to the OLC, however, was unsupported by CIA records."481 SSCI Study, Executive Summary, December 3,2014, p. 410. While the CIA acknowledges that it should have kept OLC better informed and up-to-date, the Agency found no evidence that any information was known to be false when it was provided to OLC.*82
643¶The Study claims that the CIA's unsupported representations to OLC included the characterization of Abu Zubaydah as withholding critical threat information.483 SSCI Study, Executive Summary, December 3, 2014, p. 411. The Study cites an email from the CIA's interrogation team that included the sentence; "[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."484 CIA, [REDACTED] 73208, July 23, 2003, p. 3: Email from: CIA staff officer; to: [REDACTED1, (REDACTED1, [Redacted] subject: Addendum from [Redacted] [REDACTED] 73208 (231043Z JUL 02); date: July 23, 2004, at 07:56:49 PM. See also email from: [REDACTED]; to: [REDACTED]; subject: Re: Grayson SWIGERT and Hammond DUNBAR: date: August 8, 21, 2002, at 10:21 PM. * However, this carefully chosen text omits critical statements from later in the same cable: "[t]here is information and analysis to indicate that subject has information on terrorist threats to the United States" and "[h]e is an incredibly strong willed individual which is why he has resisted this long."485 CIA, [REDACTED] 73208, July 23, 2003, p. 3; email from: CIA staff officer; to: [REDACTED"], , [REDACTED], [Redacted] subject: Addendum from [Redacted] [REDACTED] 73208 (23I043Z JUL 02); date; July 23, 2004, at 07:56 PM. See also Email from: [REDACTED]; to: [REDACTED]: subject: Re: Grayson SWIGERT and Hammond DUNBAR; date: August 8, 21, 2002, at 10:21 PM.
¶[Redacted] The Study argues that the CIA provided inaccurate information to OLC which was subsequently included in the OLC legal guidance contained in its August 1, 2002, memorandum486 SSCI Study, Executive Summary, December 3,2014, p. 410. Specifically, the Study argues that the CIA information about Abu Zubaydah's status in al-Qa'ida was inaccurate because the representation that Abu Zubaydah was the "third or fourth man" in al-Qa'ida was based on single source reporting of a
¶[Redacted] who had recanted prior to the issuance of the memorandum, and unbelievably, "ftjhe CIA later concluded that Abu Zubaydah was not a member of al- Qa'ida.,"487 SSCI Study, Executive Summary, December 3,2014, p. 410 (emphasis added). Our review of the underlying documents revealed that both of these Study assertions were wrong.
¶[Redacted]
¶Zubaydah was the "third or fourth man" in al-Qa'ida was based on a single source who had recanted prior to the drafting of the August 1, 2002, OLC memorandum488 SSCI Study, Executive Summary, December 3, 2014, p. 410. The CIA counters this criticism by stating that the Agency had:
644multiple threads of reporting indicating that Zubaydah was a dangerous terrorist, close associate of senior al Qa'ida leaders, and was aware of critical logistical and operational details of the organization, whether or not he held formal rank in al- Qa'ida. Analysts did not alter their fundamental assessment of Zubaydah's
intelligence value as a result of anything said or later recanted by the single source.489 "
¶[Redacted] [who had admitted that he was sent by Abu Zubaydah to conduct terrorist operations [Redacted] [Redacted] including an attack on a U.S. embassy.490 C J A, A L EC [Redacted] had also reported to interrogators that Abu Zubaydah was considered the "third or fourth ranking individual after Bin Ladin."491 CIA, CIA [Redacted] He provided the following additional information that Abu Zubaydah: (!) was considered the financial officer; (2) handled the "fraudulent" operations; (3) was considered to be responsible for the Gulf networks; and (4) was considered to be experienced in military affairs.492 CIA, CIA [Redacted] also admitted to meeting with Abu Zubaydah at least twice493 CIA, CIA [Redacted] An intelligence cable indicates that "as of 2 October 2001, [[Redacted] had retracte^ii^revious admissions . . . to cany out a terrorist attack against the U.S. embassy . . . ."494 CIA, CIA [Redacted] See also CIA, ALEC [Redacted] [Redacted] were certain, however, that despite retraction of his admissions concerning a plot against a U.S. embassy, he was involved in terrorist planning activity against unknown targets. They also assessed that [Redacted] d not been previously aware of the September 11, 2001, terrorist attacks by al-Qa'ida when he made his earlier admissions related to Abu Zubaydah495 See CIA, CIA [Redacted]
¶[Redacted] [Redacted] further "denied that he ever met [Abu Zubaydah]" and "also denied any affiliation" with al-Qa'ida.496 See CIA, CIA] Given the level of detail [Redacted]
¶[Redacted] provided about Abu Zubaydah, including Abu Zubaydah's rank within al-Qa'ida, his denials of meeting with Abu Zubaydahdonotrino true. Moreover, Abu Zubaydah himself admitted to at least one meeting with [Redacted] which undermines the [Redacted] denials abmUsuchmeetings.497 CIA, ALEC [Redacted] CIA, ALEC [Redacted] Abu Zubaydah and [ [Redacted] accounts differ as to the location of this meeting(s). Based on this information, we are not so quick to dismiss the validity of
¶[Redacted] original assessments of Abu Zubaydah's stature within al-Qa'ida, especially since the timing of his recantation [Redacted] [Redacted]
¶[Redacted] The Study cites to a finished intelligence product entitled, Countering Misconceptions About Training Camps in Afghanistan, 1990-2001, as support for its stunning claim that Abu Zubaydah was not a member of al-Qa'ida. In a text box, this intelligence product makes the following assertions:
645A common misperception in outside articles is that Khaldan camp was run by al- Qa'ida. Pre-911 September 2001 reporting miscast Abu Zubaydah as a "senior al-Qa'ida lieutenant," which led to the inference that the Khaldan camp he was administering was tied to Usama Bin Ladin . . . .
Al-Qa'ida rejected Abu Zubaydah's request in 1993 to join the group and that Khaldan was not overseen by Bin Ladin's organization.498 CIA, Countering Misconceptions About Training Camps in Afghanistan, 1990-2001, August 16, 2006, p. 2 (emphasis added).
¶At best, this text supports the rather useless assertion that in August 2006, a CIA intelligence product stated that Abu Zubaydah was not a member of al-Qa'ida in 1993—not the Study's erroneous claim that the CIA later concluded in 2006 that "Abu Zubaydah was not a member of al-Qa'ida." This misrepresentation of the actual text is another example of poor analytical tradecraft by the Study. As previously noted, there were multiple threads of intelligence demonstrating Abu Zubaydah's leadership role in al-Qa'ida prior to September 11, 2001.499 See CIA Study Response, Conclusions (TAB B), June 27, 2013, p. 32. Moreover, by the Study's own count, the interrogations of Abu Zubaydah resulted in 766 sole-source disseminated intelligence reports.500 SSCI Study, Volume III, March 31,2014, pp. 282-283. There should be absolutely no doubt in the Study that Abu Zubaydah was a senior and very-well informed member of al-Qa'ida.
¶Breadth of Application of Enhanced Interrogation Techniques
¶Study Claim: [Redacted] "[T]lie CIA applied its enhanced interrogation
techniques to numerous other CIA detainees without seeking additional formal legal advice from the OLC."501 SSCI Study, Executive Summary, December 3,2014, p. 411.
¶Fact: ( T S [Redacted] F ) The CIA appropriately applied the legal principles of the August 1,2002, OLC memorandum to other CIA detainees.
¶f F [Redacted] F ) The Study authors appear to misunderstand the role of the OLC. The OLC does not exercise line management responsibility for CIA organizations, nor is it responsible for day-to-day legal advice to the agency. The OLC does provide legal analysis on specific questions of law applicable to a defined set of facts. The CIA then applies the OLC's guidance to similar scenarios under the guidance of its own legal counsel. The fact that the CIA felt comfortable enough with OLC's August 1, 2002, legal opinion to apply the same legal principles to other detainees does not constitute an impediment to DOJ's legal analysis of the Program. In fact, the Attorney General later expressed the view that "the legal principles reflected in DOJ's specific original advice could appropriately be extended to allow use of the same approved techniques (under the same conditions and subject to the same safeguards) to other individuals besides the subject of DOJ's specific original advice."502 See Memorandum from Jack Goldsmith I'll, Assistant Attorney General, Office of Legal Counsel, Department of Justice, to John Helgerson, Inspector General, Central Intelligence Agencv, June 18, 2004, Addendum, p. 2 (DTS 2004-2730).
646¶Detainees' Importance Overstated
¶Study Claim: ( ^ j H H S H N ^ Tt»e CIA made inaccurate representations to
DOJ that Janat Gul and Ahmed Khalfan Ghailani were high-value al Qaeda operatives with knowledge of a pre-election plot against the United States when seeking legal guidance on whether the use of four additional interrogation techniques might violate U.S. law or treaty obligations.303
[Redacted] '[T]he threat of a terrorist attack to precede the November 2004 U.S. election was found to be based on a CIA source whose information was questioned by senior CTC officials at the time and who admitted to fabricating the information after a [Redacted] >n [Redacted] c t o b e r 2004."504 SSCI Study, Executive Summary, December 3, 2014, p. 417.
¶Fact: [Redacted] Contrary to the Study's claim, the CIA believed
the representations to be true at the time it made them to the OLC. The CIA did not learn that some of these representations had been fabricated by a sensitive CIA source until months after OLC had approved the use of enhanced interrogation techniques against Janat Gul and Ahmed Khalfan Ghailani.
[Redacted] The email relied upon by the Study does not support the proposition that senior CTC officials questioned the veracity of the sensitive CIA source. Also, while the source did admit to fabricating information about a meeting that never occurred, the Study does not acknowledge that the Chief of Base believed that the source was "generally truthful" about his discussions on the pre-election threat, despite [Redacted] I [Redacted] result on that issue.
¶[Redacted] The Study notes that the August 26, 2004, OLC letter advising that the use of four particular interrogation techniques on Janat Gul outside of the United States would not violate U.S. law or treaty obligations was based on the understanding that Janat Gul is a "high-value al Qaeda operative who is believed to possess information concerning an imminent terrorist threat to the United States."505 DOJ, Letter from Dan Levin, Acting Assistant Attorney General, to John A. Rizzo, Acting General Counsel, August 26,2004, p. 1; SSCI Study. Executive Summary. December 3, 2014, p. 417. The Study also notes that the September 6, 2004, OLC letter advising that the use of twelve particular interrogation techniques outside of the United States on Ahmed Khalfan Ghailani would not violate U.S. law or treaty obligations was based on the understanding that "Ghailani is an al-Qa'ida operative who 'is believed to be involved in the operational planning of an al-Qa'ida attack or attacks to take place in the United states prior to the November elections."'506 DOJ, Letter from Dan Levin, Acting Assistant Attorney General, to John A. Rizzo, Acting General Counsel. September 6, 2004, p. 1: SSCI Study. Executive Summary, December 3. 2014, p. 417-418. With the benefit of faulty hindsight, the Study claims that these representations were inaccurate.507 SSCI Study, Executive Summary, December 3, 2014, p. 417.
647¶This claim gives the false impression that the CIA intentionally withheld information from OLC about known fabrications from a questionable source. The truth is that the sensitive CIA source did not recant some of the underlying threat information that was contained in the CIA representations until Octobe[Redacted]anc® 2004,40 days after the issuance of the OLC letter for Gul and 29 days after the issuance of OLC letter for Ghailani. Thus, the CIA made its August and September representations to OLC in good faith, believing them to be accurate.
¶[Redacted] As the subject of the email implies—"Re: could AQ be testing ASSET Y and [source name REDACTED]?"—the concerns raised were not about the credibility of the sources, but more about the possibility that al-Qa'ida might be using this threat information to test the sources who had provided the pre-election threat information. The email raising the concern specifically states, "this is not to say that either ASSET Y or [source name REDACTED] are wrong or that the AQ statement below509 The referenced statement was issued" by al-Qa'ida on March 17, 2004, and asserted that al-Qa'ida would not operate any large-scale operation prior to the election is anything more than disinformation."510 Email from [Redacted] to: [Redacted] [Redacted] [Redacted] [REDACTED [Redacted] [Redacted] , subject: could AQ be testing [ASSET Y | and [source name REDACTED!?: date: Marc [Redacted] 2004^3t06:55 AM; Email f r o [Redacted] t [Redacted] cc: [Redacted] [Redacted] [Redacted] [REDACTED], [Redacted] could AQ be testing [the source] u n [Redacted] ; date: Miirc[Redacted] 2 0 0 4 ^ i ^ 5 2 J 2 A M j i . 1 (footnote added). [Redacted] [Redacted] [Redacted] [Redacted] subject: could AQ be testing [ASSET Y] and[source name REDACTED]?; [Redacted]te: March [Redacted] 2 0 ^ 3 1 0 6 : 5 5 AM; Email iron [Redacted] [Redacted] [REDACTED], [Redacted] : Re: could AQ be testing [the source] a m [Redacted] date: Marct[Redacted]004, at 7:52:32 AM, p. 1 (footnote added). This email confirms that the sensitive source who subsequently admitted to fabricating information was not the only source providing information related to a possible The reply email stated that it was possible the sources were just hearing the same rumors, but recollected that when al-Qa'ida put out similar rumors in the summer of 2001, those turned out to be true.511 terrorist threat. [Redacted] ' [Redacted] These emails do not support any inference about early suspicions of the source's credibility nor do they dismiss the legitimacy of the threat information provided by the sources.
648¶[Redacted] [Redacted] that ASSET Y was "deceptive in response to questions regarding . . . the pre-election threat,"512 SSCI Study, Executive Summary. December 3,2014, p. 348. This assertion is not entirely accurate. In fact, the cited cable indicated that the source |
¶I [Redacted] on the issue of the pre-election threat | _
¶|." [Redacted] Moreover, the assessment paragraph in the cited cable states: "Based on ASSET Y's seemingly genuine concern and constant return to the issue, COB believes that ASSET Y is being generally truthful about his discussions . . . on the pre-election threat."514 CIA, CIA CABLE 141 l . [Redacted] 2004, p. 5.
¶Effectiveness of the Program
¶Study Claim: [Redacted] The CIA's "representations of 'effectiveness'
were almost entirely inaccurate and mirrored other inaccurate information provided to the White House, Congress, and the CIA inspector general."515 SSCI Study, Executive Summary, December 3,2014, p. 426.
¶Fact: f £ [Redacted] F ) The CIA's Detention and Interrogation
Program, to include the use of enhanced interrogation techniques, was effective and yielded valuable intelligence. The Study's exaggerated and absolute claims about inaccurate "effectiveness" representations by the CIA have been largely discredited by these minority views and the CIA's June 27, 2013, response to the Study.
¶[Redacted] In our view, the CIA's June 27, 2013, response to the Study identified significant problems with the original Study approved by the SSCI during the 112lh Congress. Their response also fairly addressed the Study's many allegations of inaccurate representations in the context of the effectiveness of the Detention and Interrogation Program. For the most part, we found that the CIA acknowledged those representations that were made in error or could have benefited from the inclusion of additional clarification.
¶[Redacted] As previously discussed, our own review of the documentary record in response to these serious allegations against the CIA found that many of the Study's claims of alleged misrepresentations were themselves inaccurate. As a reminder of these inaccurate Study claims, we provide the following sampling of our findings related to the CIA's effectiveness representations: (1) "There is considerable evidence that the information Abu Zubaydah provided identifying KSM as 'Mukhtar' and the mastermind of 9/11 was significant to CIA analysts, operators, and FBI interrogators";516 See supra, pp. 29-31. (2) "CIA records clearly indicate that sleep deprivation played a significant role in Abu Zubaydah's identification of Jose Padilla as an al-Qa'ida operative tasked to carry out an attack against the United States";517 See supra, pp. 33-36. (3) "Abu Zubaydah provided information about how he would go about locating, Hassan Ghul and other al-Qa'ida associates in Karachi. This information caused [Redacted] Pakistani authorities to intensify their efforts and helped lead them to capture Ramzi bin al-Shibh and other al-Qa'ida associates during the Karachi safe house raids conducted on September 10-11, 2002" ;518 See supra. pp. 37-41. (4) "Information produced through detainee interrogation was pivotal to the retention of a key CIA asset whose cooperation led directly to the capture of KSM";519 See supra. pp. 41-45. (5) "CIA documents show that key intelligence collected through the CIA's Detention and Interrogation Program, including information obtained after the use of enhanced interrogation techniques, played a major role in disrupting the Karachi hotels bombing plot";520 See supra, pp. 45-47. (6) "The CIA interrogation program played a key role in disrupting the Heathrow and Canary Wharf plotting";521 See supra. pp. 47-50. (7) "CIA documents show that the interrogation of KSM and al-Qa'ida operative Zubair, during and after the use of enhanced interrogation techniques on both individuals, played a key role in the capture of Hambali";522 See supra. PP- 50-53. (8) "The CIA interrogation program played a key role in disrupting the "Second Wave" plot and led to the capture of the 17-member al-Ghuraba group";523 See supra. PP- 53-56. (9) "CIA, FBI, and Department of Justice documents show that information obtained from detainees in CIA custody was important to identifying Ja'far al-Tayyar";524 See supra. pp. 56-57. (10) "KSM provided valuable intelligence that helped to clarify Saleh al-Marri's role in al Qa'ida operations";525 See supra. pp. 57-58. (1 1) "CIA, FBI, and Department of Justice documents show that information obtained from KSM after he was waterboarded led directly to Faris's arrest and was key in his prosecution"526 See supra, pp. 58-61. (12) "Information obtained from detainee reporting, particularly KSM, provided otherwise unavailable intelligence that led to the identification of Saifullah Paracha as an al-Qa'ida operative involved in a potential plot, which spurred FBI action against him and his son, Uzhair";527 See- supra. pp. 61.64. (13) "Representations about the thwarting of an attack against Camp Lemonier in Djibouti, specifically President Bush's 2006 comments that 'Terrorists held in CIA custody have also provided information that helped stop a planned strike on U.S. Marines at Camp Lemonier in Djibouti,' were accurate and have been mischaracterized by the Study";528 See supra. pp. 67-68. and (14) "CIA documents show that detainee information served as the "tip-off and played a significant role in leading CTA analysts to the courier Abu Ahmad al-Kuwaiti. While there was other information in CIA databases about al-Kuwaiti, this information was not recognized as important by analysts until after detainees provided information on him."529 See supra. pp. 73-75.
649¶[Redacted]
650¶Use of Constant Light, White Noise, and Shaving of Detainees
¶Study Claim: f F S f l H H H H H N ^ C I A assertions to the OLC that loud music and
white noise, constant light, and 24-hour shackling were all for security purposes were inaccurate.®30
¶Fact:
[Redacted] The CIA disclosed to OLC that these confinement conditions were both for security and for other purposes. [Redacted]
¶purpose for c o n f i n i n g detainees in conditions including loud music, w h i t e noise, constant light, 2 4 - h o u r shackling, and shaving of the head and face. 5 3 1 T h e C I A ' s response asserts that this characterization takes the C I A ' s representations out o f context. T h e A g e n c y claimed that such c o n d i t i o n s w e r e necessary for security, not that the m e c h a n i s m s served no other purpose. The A g e n c y noted that in responding to a draft O L C opinion, the C I A tried to correct the misunderstanding, noting that "these conditions are also used for other valid reasons, such as to create an e n v i r o n m e n t c o n d u c i v e to transitioning captured and resistant terrorist to detainees participating in debriefings." 5 3 2
¶Conclusion 9 (CIA Impeded Oversight by CIA Office of Inspector General)
¶C o n c l u s i o n 9 states, "[t]he C I A impeded oversight by the C I A ' s O f f i c e o f Inspector General." 5 3 3 This,allegation is a m o n g the most serious charges the Study levels against the CIA. A s such, the Study should back up this charge with clear and c o n v i n c i n g e v i d e n c e . In our o p i n i o n it not o n l y fails in that effort, but the Study itself is replete with e x a m p l e s that lead to the opposite c o n c l u s i o n — t h a t the CIA did not significantly i m p e d e oversight by the C I A O f f i c e of the Inspector General (OIG).
¶T h e law requires the CIA Inspector General to certify that "the Inspector General has had full and direct a c c e s s to all information relevant to the performance of his function." 5 3 4 If the C I A O I G had b e e n impeded in its oversight related to the C I A ' s Detention and Interrogation Program, it w o u l d have had to report that it w a s unable to m a k e the required certification with respect to its o v e r s i g h t of this program. Yet, during the timeframe of the Program, the Inspector General certified in every one of its semiannual reports that it had "full and direct a c c e s s to all CIA information relevant to the performance of its oversight duties." 5 3 5 T h e law also requires the Inspector General to immediately report to the congressional intelligence committees if the Inspector General is "unable to obtain significant documentary information in the course of an investigation, inspection or audit "33S Again, we are not aware of any such report being made to the SSCI during the relevant time period. We do know, however, that John Helgerson, the CIA Inspector General, testified before SSCI prior to the commencement of the SSCI's review of the CIA Detention and Interrogation Program in February 2007 and did not complain of access to Agency information.537 Instead, he said that, during 2006, the IG took a comprehensive look at the operations of the CIA's Counterterrorism Center and conducted a separate, comprehensive audit of detention facilities. General Helgerson also testified,
651I W|c look carefully at all cases of alleged abuse of detainees. The first paper of this kind that came to the Committee was in October 2003, not long after these programs had begun, when we looked at allegations of unauthorized interrogation techniques used at one of our facilities. It proved that indeed unauthorized techniques had been used. I'm happy to say that the processes worked properly. An Accountability Board was held. The individuals were in fact disciplined. The system worked as it should.
On this subject, Mr. Chairman, 1 cannot but underscore that we also look at a fair number of cases where, at the end of the day, we find that we cannot find that there was substance to the allegation that came to our attention. We, of course, make careful record of these investigations because we think it important that you and others know that we investigate all allegations, some of which are borne out, some of which are not.538
¶Thus, the allegation made by this conclusion is attacking the credibility and integrity of both the CIA OIG and the CIA. Issues of credibility and integrity can rarely be resolved by resorting to a documentary record alone. They are best resolved by personally interviewing and assessing the performance of relevant witnesses, which, with some limited exceptions, was not done during the course of this Study. The absence of evidence relating to these statutory reporting requirements is a strong indicator the CIA OIG was not impeded in its oversight of the CIA's Detention and Interrogation Program,
¶Another possible indicator of impeded oversight would be evidence that the CIA OIG was blocked from conducting or completing its desired reviews of the program. If such oversight had been impeded, we would expect to see few, if any, completed investigations, reviews, or audits of the Program. Instead, it appears that the opposite took place. The Study itself acknowledges the existence of at least 29 OIG investigations on detainee-related issues,
¶January-June 2003, p. 5 (DTS 2003-3327); CIA Study Response, Comments (TAB A), June 27, 2013, pp. 4-6; and 10; and CIA Study Response, Conclusions (TAB B). June 27, 2013, pp. 7-9. 336
¶50 U.S.C. 3517(d)(3)(E). 337
¶See SSCI Transcript, Hearing on the Central Intelligence Agency Rendition Program, February 14, 2007, p. 24 (DTS 2007-1337). 338
¶SSCI Transcript, Hearing on the Control Intelligence Agency Rendition Program, February 14, 2007, p. 25 (DTS 2007-1337) (emphasis added).
652¶including 23 that were open or had been completed in 2005.339 We would also expect to see indications in completed OIG reports that the investigation was hampered by limited access to documents, personnel, or site locations necessary for completing such investigations. Again, according to the OIG's own reports, we found evidence that the OIG had extensive access to documents, personnel, and locations. For example, in its May 2004 Special Review of the RDI program, the CIA OIG reported that it was provided more than 38,000 pages of documents and conducted more than 100 interviews, including with the DCI, the Deputy Director of the CIA, the Executive Director, the General Counsel, and the Deputy Director of Operations. The OIG made site visits to two interrogation facilities [Redacted] a n d reviewed 92 videotapes of the interrogation of Abu Zubaydah. The CIA IG's 2006 Audit is another good example of extensive access to documents, personnel, and locations. During this audit, the OIG not only conducted interviews of current and former officials responsible for CIA-controlled detention facilities, but it also reviewed operational cable traffic in extremely restricted access databases, reports, other Agency documents, policies, standard operating procedures, and guidelines pertaining to the detention program. The OIG also had access to the facilities and officials responsible for managing and operating three detention sites. The OIG was able to review documentation on site, observe detainees through closed-circuit television or one-way mirrors, and the IG even observed the transfer of a detainee aboard a transport aircraft. They even reviewed the medical and operational files maintained on each detainee in those locations.540 CIA OIG, CIA-controlled Detention Facilities Operated Under the 17 September 2001 Memorandum of Notification, July 14, 2006, APPENDIX A, pp. 1-2 (DTS 2006-2793).
¶The Study's case in support of this conclusion seems to rest mainly upon the following four observations: (I) the CIA did not inform the CIA OIG of the existence of the Program until November 2002; (2) some CIA employees provided the OIG with some inaccurate information about the Program; (3) CIA Director Goss directed the Inspector General in 2005 not to initiate planned review of the Program until the reviews already underway were completed; and (4) Director Hayden ordered a review of the OIG itself in 2007,541 SSCI Study, Findings and Conclusions, April 3.2014. p. 8. ffThis factual error and misrepresentation of events was corrected in the December 3,2014, version of the Findings and Conclusions by editing the text to read. "In 2005, CIA Director Goss requested in writing that the inspector general not initiate further reviews of the CIA's Detention and Interrogation Program until review already underway were completed." (emphasis added). Compare SSCI Study, Findings and Conclusions, April 3, 2014, p. 8 with SSCI Study, Findings and Conclusions, December 3, 2014, p. 8. ]J 64 Our examination of these observations supports our conclusion that the CIA OIG was not impeded in its oversight of the CIA's Detention and Interrogation Program.
¶The Study seems to fault the CIA for not briefing the CIA Inspector General on the existence of the Detention and Interrogation Program until November 2002, but does not really pursue why this fact alone was a problem or how it actually "impeded" the CIA OIG. Acting under the authority of the President's September 17, 2001, Memorandum of Notification, the CIA initiated the Program in late-March, 2002, when the first detainee was taken into its custody.542 The CIA's Detention and Interrogation Program was part of a highly classified and compartmented covert action program. As the Program was being implemented, the CIA sought legal guidance from the Department of Justice and began briefing the White House.543 See CIA OIG, Special Review: Counterterrorism Detention and Interrogation Activities, (September 2001 - October 2003J, May 7, 2004., p. 4 (DTS 2004-27»). Congressional access to details about the Program was restricted to leadership of the congressional intelligence committees during that same timeframe.544 The CIA briefed HPSC1 leadership on September 4, 2002, shortly after the August recess. SSCI leadership was briefed on the Program on September 27, 2002. See CIA Study Response, Conclusions, June 27, 2013, p. 36. The CIA Inspector General was notified in November about the Program's existence in November 2002, because of the need for an OIG investigation into the death of a detainee who had been in the custody of the CIA.545 CIA OIG, Special Review: Counterterrorism Detention and Interrogation Activities, (September 2001 - October 2003), May 7, 2004, p. 52 (DTS 2004-2710). At that point, the OIG had a clear "need to know" about the Program. We see nothing sinister in these events.
653¶The second "impeding" observation concerned the fact that CIA personnel provided the OIG with inaccurate information on the operation and management of the Detention and Interrogation Program, which was subsequently not corrected by the CIA and was included in the OIG's final report. The CIA has acknowledged in two cases that it made "mistakes that caused the IG to incorrectly describe in its 2004 Special Review the precise role that information acquired from KSM played in the detention of two terrorists involved in plots against targets in the [United States]."546 CIA Study Response, Conclusions (TAB B), June 27, 2013, p. 22 (emphasis in original). The inclusion of erroneous information in an oversight report is disappointing, but absolute precision in matters such as these is rarely obtainable. Overall, these errors did not fundamentally alter the overall representations the CIA made about the RDI program to the OIG and policy makers.
¶The Study's third observation about CIA Director Goss contains an error. It states that in 2005, "CIA Director Goss directed the Inspector General not to initiate planned reviews of the CIA Detention and Interrogation Program until reviews already underway were completed."547 SSCI Study, Findings and Conclusions, April 3. 2014, p. 8 (emphasis added). [[This factual error and misrepresentation of events was corrected in the December 3, 2014, version of the Findings and'Conclusions by editing the text to read, "In 2005, CIA Director Goss requested in writing that the inspector general not initiate further reviews of the CIA's Detention and Interrogation Program until review already underway were completed." (emphasis added). Compare SSCI Study, Findings and Conclusions, April 3, 2014, p. 8 with SSCI Study, Findings and Conclusions, December 3, 2014, p. 8.]] In fact, Director Goss did not "direct," but rather asked that a newly proposed review by the OIG be rescheduled until a mutually agreed-upon date. We find that the actual text from Director Goss's request provides sufficient justification against any allegation of "impeding" OIG oversight with the respect to the timing of the proposed OIG review. The memorandum states;
¶ALEC [Redacted]
654Given its mission, CTC unquestionably must be subjected to rigorous independent oversight. This, in fact, has been the case, as evidenced by the 20 or so ongoing, incomplete OIG reviews directed at the Center. I am increasingly concerned about the cumulative impact of the OIG's work on CTC's performance. As I have said in previous correspondence to you, I believe it makes sense to complete existing reviews, particularly resource-intensive investigations such as those now impacting CTC, before opening new ones. As CIA continues to wage battle in the Global War on Terrorism, I ask that you reschedule these aspects of the new CTC review until a mutually agreeable time in the future.548 CIA, Memorandum from Porter J, Goss, Director, Central Intelligence Agency to CIA Inspector General, re: New IG Work Impacting the CounterTerrorism Center. July 21,2005 (emphasis added). In this same memorandum, Director Goss did exercise his statutory authority to direct the Inspector General to stand down from talking directly with high-value detainees until he received a compelling explanation. Ibid., p. 1. See 50 U.S.C. 403q. A few days later, a compromise was reached that permitted the audit of the CIA black sites with the agreement that no high value detainees would be interviewed by the OIG during the audit. See July 28, 2005,08:54 AM, email from [REDACTED], DCI/OlG/Audit Staff/Operations Division to: [REDACTED] cc: [Redacted] [REDACTED], [REDACTED], [REDACTED!], [REDACTED], Robert Grenier, [Redacted] E D A C T E D ] , John P. Mudd, [REDACTED], [REDACTED], CIA attorney, CIA attorney, [REDACTED], [REDACTED]Re: Request for TDY Support; CIA OIG, CIA-controlled Detention Facilities Operated Under the 17 September 2001 Memorandum of Notification, July 14, 2006, Appendix A, p. 3 (DTS 2006-2793). Director Goss's lawful exercise of his statutory authority cannot be labeled as "impeding" oversight, especially here, where a reasonable accommodation was reached within a matter of days.
¶The final observation in support of this "impeding" conclusion was that CIA Director Michael Hayden ordered a review of the OIG itself in 2007. The law governing the CIA OIG states, "The Inspector General shall report directly to and be under the general supervision of the Director."549 w 50 U.S.C. 403q. Director Hayden's request for this review stemmed from a disagreement between the Office of the General Counsel (OGC) and the OIG over a legal interpretation related to the CIA's Detention and Interrogation Program. Director Hayden tasked Special Counselor Robert Dietz to assess how OGC and OIG interacted on legal issues. He also subsequently tasked Dietz with reviewing complaints of alleged OIG bias and unfair treatment of CIA officers as part of this review. On October 24, 2007, Deitz and his review team made an oral presentation to the Inspector General and his senior staff. They presented a number of recommendations regarding modifications to the OIG's procedures and practices, a number of which were adopted by the Inspector General. Director Hayden subsequently sent a message to the CIA workforce, stating that the Inspector General had "chosen to take a number of steps to heighten the efficiency, assure the quality, and increase the transparency of the investigative process." Director Hayden's message listed the agreed-upon recommendations.550 See Letter from DCIA Michael Hayden to Senator John D. Rockefeller, January 29. 2008 (DTS 2012-0606). _ _ _ _ _ _ _ _ _ _ _ _ 102 Mill I I III I [Redacted] , , (|||||l| Rather than impeding the CIA OIG's oversight, it appears that Director Hayden's order resulted in agreed-upon improvements to that office.
¶We find that these observations, whether considered individually or in combination, do not support the conclusion that the CIA improperly impeded oversight of the CIA's Detention and Interrogation Program by the CIA OIG.
655¶Conclusion 10 (The CIA Released Classified Information on EITs to the Media)
¶Conclusion 10 asserts, "|t]he CIA coordinated the release of classified information to the media, including inaccurate information concerning the effectiveness of the CIA's enhanced interrogation techniques."551 " SSCI Study, Findings and Conclusions, December 3, 2014, p. 8. This conclusion insinuates that there was something improper about the manner in which the CIA managed the process by which information about the Detention and Interrogation Program was disclosed to the media. It also repeats one of its main faulty claims—that the CIA released inaccurate information about the Program's effectiveness. Our examination of the record revealed that the CIA's disclosures were authorized and that the CIA's representations about the Program were largely accurate.
¶Study Claim: [Redacted] "The CIA's Office of Public Affairs and senior
CIA officials coordinated to share classified information on the CIA's Detention and Interrogation Program to select members of the media to counter public criticism, shape public opinion, and avoid potential congressional action to restrict the CIA's detention and interrogation authorities and budget. These disclosures occurred when the program was a classified covert action program and before the CIA had briefed the full Committee membership on the program."352
¶Fact: (U) The National Security Council Policy Coordinating Committee
designated the CIA as "the lead" on the "Public Diplomacy issue regarding detainees."
¶The Study seems to confuse the difference between an authorized disclosure of classified information and the unauthorized "leak" of that same information. Despite acknowledging that the "National Security Council Principals Committee discussed a public campaign for the CIA's Detention and Interrogation Program,553 SSCI Study, Executive Summary, December 3,2014, p. 403. the Study tries to cast the authorized disclosures as a "media campaign" that must be "done cleverly,"554 SSCI Study, Volume II, April 1, 2014, pp. 1521-1522. and dwells on CIA officers providing information on the Program to journalists.555 SSCI Study, Executive Summary, December 3, 2014, pp. 403-404. Specifically, on April 15, 2005, the National Security Council (NSC) Policy Coordinating Committee (PCC) determined that the CIA would have "the lead" on the "Public Diplomacy issue regarding detainees."556 Email from: [Redacted] t o : CIA attorney; subject: Brokaw interview: Take one; date: April 15, 2005, at 1:00 PM. Once the PCC designated CIA as "the lead" on this matter, the CIA was authorized to make determinations on what information related to this highly classified covert action could be disclosed to the public on a case-by-case basis, without having to return to the White House for subsequent approvals.
¶The White House did, however, retain its authority with respect to protecting sources and methods in the context of keeping the congressional intelligence fully and currently informed of this particular covert action. Tt is within the President's discretion to determine which members of Congress beyond the "gang of eight," are briefed on sensitive covert action programs. There is no requirement for the White House to brief the full Committee as a prerequisite to the declassification or disclosure of information to the media.
656¶The Study acknowledges the White House's guiding influence on opening aspects of the Program to public scrutiny557 DECISION PAPER: Background for 10 March Principals Committee Meeting on Long-Term Disposition of- Selected High Value Detainees, March 4, 2Q05. See also email from: [Redacted] L. Grenier; cc: John P. Mudd, [Redacted] [ R K D A C T E [Redacted] subject: DCI Briefing Material/Talking points for upcoming PC; date: 3/01/05 11:33 AM. SSCI Study, Volume II, April 1, 2004, pp. 1508-54. in a section entitled, "NSC Principals Agree to Public Campaign Defending the CIA Detention and Interrogation Program."558 SSCI Study, Volume II, April 1, 2014, p. 1521. In a subsequent section, referring to another "media plan," the Study states, "In the fall of 2005, the CIA expanded on its draft public briefing document. One draft, dated November 8, 2005, was specifically intended for National Security Advisor Stephen Hadley, who had requested it."559 SSCI Study, Volume II, April 1, 2014, p. 1528. Later, "[tjhroughout the summer of 2006, the CIA assisted the White House in preparing the public roll-out of the program, culminating in President Bush's September 6, 2006 speech describing specific intelligence obtained from CIA detainees."560 SSCI Study, Volume II, April 1, 2014, p. 1535- The Study cites no examples of the White House objecting to CIA activities that followed from these discussions.
¶The Study is correct that, "The CIA's Office of Public Affairs and senior CIA officials coordinated to share classified information on the CIA's Detention and Interrogation Program to select members of the media."561 SSCI Study, Findings and Conclusions, December 3, 2014, p. 8. That is the function of the Office of Public Affairs (OPA), which is the CIA office primarily responsible for dealing with the routine daily inquiries from the media. The CIA response to the Study indicates that the "vast majority of CIA's engagement with the media on the program was the result of queries from reporters seeking Agency comment on information they had obtained elsewhere.561 The Study made no effort to review established procedures at OPA. The OPA's guidelines and practices include coordinating any information with "senior CIA officials," in order to mitigate or limit the disclosure of classified information. The OPA responds to media requests in a variety of ways that range from "no comment," to, in some cases, working with the media to provide context and improve the accuracy of stories that do not damage the CIA's equities.
¶The Study cites a few select examples of media inquiries that resulted in stories about the Detention and Interrogation Program. The Study does not make clear, in most cases, who initiated these requests, nor does the Study make clear in what way their selected examples represent the body of media exchanges that OPA had with the media during the period of the Program. Interviews with OPA personnel would have rendered some clarity on these questions.
657¶mi 11111 [Redacted] 'HBMBWMWMMI"'i"1111111
¶The Study quotes, inconclusively, emails with various CIA counsels on how to handle the protection of covert action equities against public revelations563 SSCI Study, Executive Summary, December 3, 2014. p. 403-405 and chat sessions between officers in CTC who were tasked to prepare and review talking points for an appearance by senior CIA officials on NBC Dateline with Tom Brokaw. Their exchanges include comments on the rhetorical context of the possible media discussion, ("we either get out and sell, or we get hammered . . . we either put out our story or get eaten, there is no middle ground").564 CIA, Sametime communication, between John P. Mudd and [Redacted] dated April 13.2005, from 19:23:50 to 19:56:05. As noted in the CIA response to the Study, "the informal comments of any one CIA officer do not constitute Agency policy with regard to media interactions."565 CIA Study Response. Conclusions (TAB B), June 27, 2013, p. 40. One officer's speculation in a chat session about the risks of the Congress' reaction to unfavorable media coverage does not support the conclusion that the CIA shaped its public affairs strategy as a means to avoid congressional action. Moreover, the CIA refuted the suggestion that this chat session exchange related to the disclosure of classified information by stating that the NBC Dateline broadcast for which the officers were preparing, "contained no public disclosures of classified CIA, information; indeed, the RDI program was not discussed. "566 CIA Study Response, Conclusions (TAB R), June 27, 2013, p. 40 (emphasis in original). M?
¶Study Claim: [Redacted] "Much of the information the CIA provided to
the media on the operation of the CIA's Detention and Interrogation Program and the effectiveness of its enhanced interrogation techniques was inaccurate and was similar to the inaccurate information provided by the CIA to the Congress, the Department of Justice, and the White House."567 CIA Study Response, Conclusions (TAB B), June 27, 2013, p. 9.
¶Fact: f F [Redacted] F ) The CIA's Detention and Interrogation
Program, to include the use of enhanced interrogation techniques, was effective and yielded valuable intelligence. The Study's exaggerated and absolute claims about inaccurate "effectiveness" representations by the CIA have been largely discredited by these minority views and the CIA's June 27, 2013, response to the Study.
¶[Redacted] As previously discussed, our own review of the documentary record in response to the Study's serious allegations against the CIA found that many of these claims of alleged misrepresentations were themselves inaccurate. The Study's flawed analytical methodology cannot suppress the reality that the CIA's Detention and Interrogation Program set up an effective cycle of events whereby al-Qa'ida terrorists were removed from the battlefield, which had a disruptive effect on their current terrorist activities and often permitted the Intelligence Community to collect additional intelligence, which, in turn, often led back to the capture of more terrorists. We found, with a few limited exceptions, that the CIA generally did a good job in explaining the Program's accomplishments to policymakers. We will not repeat the listing of our specific effectiveness findings here.568 That list may be found in the discussion of Conclusion 5 under the Effectiveness of the Program heading, supra, pp. 96-97.
658CONCLUSION
¶The Study concludes that the CIA was unprepared to initiate a program of indefinite, clandestine detention using coercive interrogation techniques, something we found obvious, as no element of our government was immediately prepared to deal with the aftermath of what had happened on September 11, 2001. In reviewing the information the CIA provided for the Study, however, we were in awe of what the men and women of the CIA accomplished in their efforts to prevent another attack. The rendition, detention, and interrogation program they created, of which enhanced interrogation was only a small part, enabled a stream of collection and intelligence validation that was unprecedented. The most important capability this program provided had nothing to do with enhanced interrogation—it was the ability to hold and question terrorists, who, if released, would certainly return to the fight, but whose guilt would be difficult to establish in a criminal proceeding without compromising sensitive sources and methods. The CIA called the detention program a "crucial pillar of US counterterrorism efforts, aiding intelligence and law enforcement operations to capture additional terrorists, helping to thwart terrorist plots, and advancing our analysis of the al-Qa'ida target."569 Detainee Reporting Pivot£forthe War Against al-Qa'ida, June I, 2005, p. i. We agree. We have no doubt that the CIA's detention program saved lives and played a vital role in weakening al- Qa'ida while the Program was in operation. When asked about the value of detainee information and whether he missed the intelligence from it, one senior CIA operator [Redacted] told members, "I miss it every day."570 [Redacted] h a m b l i s s , [Redacted] conversation between SSCI members and CIA officers, [Redacted] We understand why,
659¶APPENDIX I: CIA, Countering Misconceptions About Training Camps in Afghanistan, 1990-2001, August 16,2006
660¶[Redacted]
[Redacted] [Redacted] [Redacted]
¶fS August 2006
¶Countering [Redacted] Misconceptions About Training Camps in Afghanistan, 1990-2001 [Redacted] [Redacted]
661[Redacted] [Redacted]
¶[Redacted]
-
¶
- Arab mujahidin took courses in explosives, inference that the Khaldan camp be was electronics, and document falsification in private administering was tied to Usama Bin Ladin. residences in Kabul where instructors charged fees of between $50 and S I 00 per month. • The group's flagship camp, al-Faruq, reportedly was created in the late 1980s so that Bin Ladin's
- A Moroccan guesthouse in Kabul provided target new organization could have a training reconnaissance training primarily to Moroccans. infrastructure independent of 'Abdullah Azzam's Maktab al-Khidamat, the nongovernmental
¶» One trainee received informal training on the organization that supported Khaldan.
¶placement, extraction, and camouflage of antitank and antipersonnel mines while on the frontlines in • Al-Qa'ida rejected Abu Zubaydah's request in 1993
¶Bagraml [Redacted] to join the group and that Khaldan was not overseen by Bin Ladin's organization. The degree of al-Qa'ida involvement in the Afghanistan training scene during the 1990s is often •» There were relations between the al-Qa'ida camps overstated. Al-Qa'ida had only a peripheral role in and Khaldan. Trainees, particularly Saudis, who training during the middle part of the decade when had finished basic training at Khaldan were referred Bin Ladin and most of his group were located in to al-Qa' ida camps for advanced courses, and Sudan.From 1993 to 1997, al-Faniq was used to train Khaldan staff observed al-Qa'ida training The two Tajiks with only a few al-Qa'ida members assisting. roups Jiowever. did not exchange trainers. Al-Qa'ida reportedly was "in control of al-Faruq" [Redacted] again in J 997.
-
¶
- An al-Qa'ida facilitator reportedly said that in 1998 • Some of the camps have been nusidentified as Bin Ladin began to pressure other Arabs to close being run by al-Qa'ida, including Khaldan and Abu their facilities because he wanted all the recmits
¶Derunta and Kargha.
-
¶
- lbn al-Shaykh al-Libi initially foiled attempts to • Recent reporting suggests that the degree to which shut down Khaldan, but by April 2000 the camp al-Qa'ida financed nott-al-Qa'ida camps may have had closed. been exaggerated. For example, a senior al-Qa'ida leader reportedly said that he did not know of • The Libyan Islamic Fighting Group and Abu al-Qa'ida providing any money, material, or trainers Mus'ab al-Suri were able to bribe or convince to non-al-Qa'ida [Redacted] camps! Taliban officials to allow them to continue operating their camps despitelal-Oa'ida's pressure By the late 1990s, al-Qa'ida—with the assistance of on the Taliban to close t h e [Redacted] the Taliban—sought to gain hegemony over training in Afghanistan, but the group never controlled al! the camps.
¶Khaldan Not Affiliated With Al-Qa'ida [Redacted]
¶.A common misperception in outside articles is that Khaldan camp was run by al-Qa'ida. Pre-11 September 2001 reporting miscast Abu Zubaydah as a "senior al-Qa'ida lieutenant," which led to the
662¶<U) APPENDIX II: CIA, Briefing Notes on the Value of Detainee Reporting. August 2005
¶/
663¶Briefing Notes cm ihe Value of Detainee Reporting
¶August 2005
¶I'm glad to speak to you today about the results we have seen from high and mid value detainee reporting, which since 9/11 has become a crucial pillar of US counterterrorism efforts. To get a sense for the importance of this reporting to CIA's overall collection effort, let me share some statistics with you: • Since we began the program in March 2002, detainees have produced over 6,000 disseminated intelligence reports.
-
¶
- Approximately half of CTC's disseminated intelligence reporting in 2004 on al-Qa'ida came from CIA-held detainees.
¶For both warning and operational purposes, detainee reportincn^isseminated
JS intelligence and law enforcement e n t r t [Redacted] [Redacted] (3//NF) ^ ^ ^ ^ ^ ^ ^
¶For today's briefing, I'm going to highlight five key areas in which detainee reporting has played a critical role: aiding intelligence and law enforcement operations to capture additional terrorists, helping to thwart terrorist plots, advancing our analysis of the al-Qa'ida target, illuminating other collection, and validating sources. (S//NT)
¶Capturing Other Terrorists
¶Detainees have given us a wealth of useful targeting information on al-Qa'ida members and associates. Detainees have played some role—from identification of photos to providing initial lead and in depth targeting information—in members and associates since 2002, i n c l u d i [Redacted] t « i t i o n s we assess as "key" because the indiviaual^e^necnepresented a significant threat to the United States or were playing leading roles in assisting al-Qa'ida.
¶I have handed you graphics that tell the story of two such cases:
¶Unraveling Hambali's network. In March 2003, al-Qa'ida operations chief Khalid Shaykh Muhammad (KSM) provided information about an al-Qa'ida operative, Majid Khan, whom he was aware had recently been captured. KSM— possibly believing the detained operative was "talking"—admitted to having tasked Majid with delivering a large sum of money to individuals working for another senior al-Qa'ida associate.
¶«In an example of how information from one detainee can be used in debriefing another detainee in a "building block" process, Khan—confronted with KSM's [Redacted]
664[Redacted] [Redacted]
¶information about the money—acknowledged that he delivered the money to an operative named "Zubair" and provided Zubair's physical description and contact number. Based on that information, Zubair was captured in June 2003.
-
¶
- During debriefings, Zubair revealed that he worked directly for Jemaah Islamlyah (Jl) leader and al-Qa'ida's South Asia representative Hambali. Zubair provided information[Redacted] [Redacted] [Redacted]
- Next, KSM—when explicitly queried on the issue—identified Hambali's brother, 'Abd al-Hadi, as a prospective successor to Hambali. Information from multiple detainees, including KSM. narrowed down 'Abd al-Hadi's location and enabled his capture[Redacted]
- Bringing the story full circle, 'Abd al-Hadi identified a cell of Jl operatives- some of them pilots—whom Hambali had sent to Karachi for possible al-Qa'ida operations. When confronted with his brother's revelations, Hambali admitted that he was grooming members of the cell for US operations—at the behest of KSM—probably as part of KSM's ptoyofhHjjiacked planes into the tallest building on the US West Coast. [Redacted]
¶The Arrest of Dhiren Barot (aka Issa al-Hindi). KSM also provided the first lead to an operative known as "Issa al-Hindi," whife other detainees gave additional identifying information. KSM also provided the first lead to an operative known as "Issa al-Hindi," while other detainees gave additional identifying information. Issa was well known in jihadi circles because he penned a book about his time fighting in Kashmir under his "al-Hindi" nom de guerre; however, no one seemed to know his true name. In March 2004, our hunt for Issa intensified when we receive reporting about a possible attack against the US Homeland. [Redacted]
¶[Redacted] i positively identities the photo as issa al-Hindi, and we are able to identified through a new search mechanism a separate individual who had traveled to the United States with Issa prior to 9/11. • Issa and his former traveling companion —who were arrested in 2004—appear to have been involved in plots in the UK. Moreover, in early 2004, Issa had briefed US targeting packages to al-Qa'ida senior leadership in Pakistan. Issa was well known in jihadi circles because he penned a book about his time fighting in Kashmir under his "al-Hindi" nom de guerre; it was only
:>!ice work coupled with detainee confirmation on his identity, [Redacted] that] [Redacted] i/ere able to find him. [Redacted] [Redacted]
¶[Redacted]
665W-SEERETJMH^HUOIWMMR IMCRSSIRED
¶In addition to these two prominent cases, a number of other significant captures have resulted thanks to detainee reporting, ft is important to highlight that a number of these cases involve law enforcement's use of our detainee reporting:
-
¶
- Arrest of key al-Qa ida facilitator] In debriefings, KSM in March 2003 noted that he it t^ommunicate with seniorj[Redacted]
¶[Redacted] CIA then determined that K S ^ j a d been using this account actively in ongoing operationaSDlanning for a n [Redacted] r e a t , which KSM confirmed.
¶Analysis of [Redacted] after KSM's detention led to his being located and a r r e s t e o [Redacted] 0 0 3 .
-
¶
- identifying the "other" shoe bomber. Leads provided by KSM in November 2003 led directly to the arrest of shoe bomber Richard Reid's one-time partner Sajid Badat in the UK. KSM had volunteered the existence of Badat—whom he knew as "Issa al-Pakistani"—as the operative who was slated to launch a simultaneous shoe bomb attack with Richard Reid in December 2001.
- Jose Padilla. After his capture in March 2002, Abu Zubaydah provided information leading to the identification of alleged al-Qa'ida operative Jose Padilla. Arrested by the FBI in 2002 as he arrived at O'Hare Airport in Chicago, he was transferred to military custody in Charleston, South Carolina, where he is currently being held. The FBI began participating in the military debriefings in March 2003, after KSM reported Padilla might know the true name of a US-bound al-Qa'ida operative known at the time only as Jafar al-Tayyar. Padilla confirmed Jafar's true name as Adnan El Shukrijumah.
- Iyman Faris. Soon after his arrest, KSM described an Ohio-based truck driver whom the FBI identified as Iyman Faris, already under suspicion for his contacts with al-Qa'ida operative Majid Khan. FBI and CIA shared intelligence from interviews of KSM, Khan, and Faris on a near real-time basis and quickly ascertained that Faris had met and accepted operational taskings from KSM on several occasions. Faris is currently serving a 20-yeaygnignn^Qr conspiracy and material support to a terrorist organization. [Redacted] [Redacted]
¶Bringing new targets to light A variety of detainee reporting has provided our nitial information about individuals having links to al-Qa'ida and has given us nsight into individuals about whom we had reporting but whose al-Qa'ida nvolvementwa^ncleai^or example, detainees in mid-2003 helped us build a Dist °f [Redacted] individuals—many of whom we had never heard of before—that al-Qa'ida deemed suitable for Western operations. We have shared this list broadly within the US intelligence and law enforcement communities,! [Redacted] [Redacted]
¶MI MIL' 11A. II ini [Redacted] I I II NHI 11MI i
666-
¶
- Jafar al-Tayyar first came to FBI's attention when Abu Zubaydah named him as one of the most Eikeiy Individuals to be used by al-Qa'ida for operations in the United States or Europe. Jafar was further described by detainees, whose description of Jafar's family in the United States was key to uncovering Jafar's true name. An FBI investigation identified Gulshair El Shukrijumah, leader of a mosque in Hollywood, Florida, as having a son named Adnan who matched the biographical and physical descriptions given by the detainees. A "Be On The Lookout" notice has been issued for Adnan El Shukrijumah.
- Most recently, for example, Abu Faraj al-Libi has revealed that an [Redacted] [Redacted] [Redacted] [Redacted]
¶Revealing Plots, Potential Targets (9//NF)
¶One of the fail-outs of detaining these additional! terrorists has been the unearthing and at least temporary thwarting of a number of al-Qa'ida operations in the United States and overseas.
¶Possible Nuclear Threat to the United States. In some of the most groundbreaking information on al-Qa'ida collected in 2004, detainee Sharif al- Masri provided at least 11 intelligence reports on nuclear and biological issues related to al-Qa'ida and may have revealed a new nuclear threat to the US Homeland associated with al-Qa'ida's key explosives expert Abu 'Abd al- Rahman al-Muhajir.
¶Heathrow Airport plot Shortly after his capture in March 2003, KSM divulged limited information about his plot to use commercial airliners to attack Heathrow Airport and other targets in the United Kingdom; he discussed this plot probably because he believed that key Heathrow plotter Ramzi bin al-Shibh, who had been detained six months previously, had already revealed the information.
667¶mil 11 mi [Redacted] II'III linn i
-
¶
- Debriefers used KSM's and Bin al-Shibh's reporting to confront Khallad and Ammar al-Baluchi, who were caught two months after KSM. Khallad admitted to having been involved in the plot and revealed that he directed group leader Hazim al-Sha'ir to begin locating pilots who could hijack planes and crash them into the airporM<halfad said he and operative Abu Talha al-Pakistani considered [Redacted] n t r i e s as possible l a u n c | ^ i t e ^ o y h ^ i i j a d < i n c ^ ^ ^ attemot^jncHhatUiey narrowed the options [Redacted] [Redacted]
- Khallad's statements provided leverage tn debriefings of KSM. KSM fleshed out the status of the operation, including identifying an additional target in the United Kingdbm, Canary Wharf. (S//NO
¶Revealing the Karachi plots. When confronted with information provided by al- Qa'ida senior facilitator Ammar al-Baluchi, Khallad admitted during debriefings that al-Qa'ida was planning to attack the US Consulate in Karachi, Westerners at the Karachi Airport, and Western housing areas. (S//MF)
¶Aiding Our Understanding Of Al-Qaida (S//NF)
¶The capture and debriefing of detainees has transformed our understanding of al-Qa'ida and affiliated terrorist groups, providing Increased avenues for sophisticated analysis. Prior to the capture of Abu Zubaydah in March 2002, we had large gaps in knowledge of al-Qa'ida's organizational structure, key members and associates, intentions and capabilities, possible targets for the next attack, and its presence around the globe.
-
¶
- Within months of his arrest, Abu Zubaydah provided details about al- Qa'ida's organizational structure, key operatives, and modus operandi. Ot also was Abu Zubayda hearty in his detention, who identified KSM as She mastermind of 9/11. [Redacted] ln the years since 9/11, successive detainees have helped us gauge our progress in the fight against aO-Qa'ida by providing updated information on the changing structure and health of the organization.
¶Hassan Ghul. After his early 2004 capture, Hassan Ghul provided considerable intelligence on al-Qa'ida's senior operatives in Waziristan and elsewhemjuhe tribal regions of Pakistan. We had fragmentary i n f o r m a t [Redacted]
¶[Redacted] Shkafvalle^s^i satehave»Ho^Ri!pHf^mcn!s^ before Ghul's capture; however, Ghul's reporting brought instant credibility to all this disparate reporting and added minute details to what had previously been a murky, nascent picture. Ghul helped us assess that this valley, as of December 2003, was not just one haven for al-Qa'ida in Waziristan, but the home base for al- Qa'ida in the area and one that al-Qa'ida was reluctant to abandon.
668Ghul—a key al-Qa ida facilitator—(pointed out the location :ai valley, Was
¶[Redacted] [Redacted] [Redacted]
¶[Redacted] lough we had a body of reporting from clandestine and other sources indicating that senior al-Qa'ida targets were congregating in the Shkai valley in 2004, Ghul's confirmation and critical narrative helped counterterrorism officer [Redacted] [Redacted]
inedl [Redacted] [Redacted] Ghul
¶then supplied detailed insight into the nature of their training, the al-Qa'ida operatives involved In their grooming, and the location o f [Redacted] c i l i t i e s in Shkai where the operatives trained. [Redacted]arned later through debriefings of Abu Talha a l - P a l ^ ^ ^ ^ ^ ^ ^ p e c n e c r u i t the Pakistanis—that one of the ooeratives. [Redacted] a s attempting to apply for a US student vis* [Redacted]
¶[Redacted] [Redacted]
¶Various operatives discuss capabilities, including CBRN. Detained al-Qa'ida technical experts—some of whom had very focused roles in the organization— have provided unique insight into the origins of the group's efforts to develop weapons and the technical limitations of key al-Qa'ida personnel—in particular, detainees have helped to clarify al-Qa'ida's CBRN program.
senior al-Qa'ida military trainer Ibn al-Shaykh identified [Redacted] -who had been associated with poison training—as the
¶individual who conducted experiments with mustard on rabbits and dogs.
-
¶
- KSM's reporting advanced our understanding of al-Qa'ida's interest in developing a nuclear weapons program, and also revealed important information about al-Qa'ida's program to produce anthrax. Me apparently calculated incorrectly that we had this information already, given that one of the three—Yazid Sufaat—had been in foreign custody [Redacted]
¶[Redacted]
669¶1 After being confronted with KSM's reporting, Yazid eventually admitted his
¶[Redacted]
¶Illuminating Other Collection (S//NF)
¶Detainee reporting has allowed us to confirm reporting from clandestine ajw^thej^ources^richTial^ [Redacted] [Redacted] [Redacted]
¶»As noted earlier, Abu Faraj—^lQQ^jttmyjfly^ainpes—has begun to flesh out threat reporting received [Redacted] i n g 2004, including tasking to send operatives to tnc^iHne^Jlexic^tna hopes to mount an attack prior to the 2004 US Presidential elections. While we are still in the early stages of exploiting the full extent of Abu Faraj's knowledge on Homeland threats, information he and others have provided has confirmed that efforts were underway to mount an attack in the US Homeland beginning in late 2003. [Redacted] [Redacted] [Redacted] [Redacted]
¶•Hassan Ghul's disc containing a message from Zarqawi for Bin Ladin about Zarqawi's plan in Iraq coupled with Ghul's own reporting brought the burgeoning relationship between Zaroawyand al-Qa'ida into clear focus for the first time since the US entry into Iraq. [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] a , s o c a n H ^ H I H I I ^ ^ ^ ^ ^ ^ I ^ H be use^nrontrontin^^ detainees to get them to talk about topics they would otherwise not reveal.
670¶Detainees Have been particularly useful in sorting out the large volumes of documents and computer data seized in raids. Such infommtior^otentiafly ^ a i ^ ^ m s g ^ ^ f i f l a ^ r a c e e d i n a ^ a ^ p h y s i c a l evidence, [Redacted]
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¶
- For example, lists of names found on Mustafa al-Hawsawi's computer seized in March 2003 represented al-Qa'ida members who were to receive money. Debriefers questioned detainees extensively on these names to determine who they were and how important they were to the organization. This information helped us to better understand al-Qa'ida's revenues and expenditures, particularly in Pakistan, and money that was available to families,
- The same computer had a list of e-mail addresses for individuals KSM helped deploy abroad that he hoped would execute operations; most of these names were unknown to us, and we used this iformatiory^lebrU informatioryrylebriefings of KSM and other detainees to unravel KSM's plots. [Redacted]
¶Helping T o Validate Other Sources (C//NF)
¶Detainee information is a key tool for validating clandestine sources who may have reported false information. In one case, the detainee's information proved to be the accurate story, and the clandestine source was confronted and subsequently admitted to embellishing or fabricating some or all the details in his report.
-
¶
- Pakistan-based facilitator Janat Gul's most significant reporting helped us validate a CIA asset who was providing information about the 2004 pre-election threat. The asset claimed that Gul had arranged a meeting between himself and al-Qa'ida's chief of finance, Shaykh Sa'id, a claim that Gul vehemently denied.
- Gul's reporting was later matched with information obtained from Sharif al-Masri and Abu Talha, captured after Gul. With this reporting in hand, CIA [Redacted]the asset, wh^ubsequently admitted to fabricating his reporting about the meeting. [Redacted]
¶In other Instances, detainee information has been useful in identifying clandestine assets who are providing good reporting. For example^Iassan Ghul's reporting on Shkai helped us validate several a s s e [Redacted] h o also told us that al-Qa'ida members had found safehaven at this location.
671-
¶
- Sometimes one detainee validates reporting from others. Sharif corroborated [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted]
¶Challenges of Detainee Reporting (S//NF)
¶I don't want to leave you with the Impression that we do not assess detainee reporting with the same critical eye that we would other sources of intelligence. Detainees' information must be corroborated using multiple sources of Intelligence; uncorroborated information from detainees must be regarded) with some degree of suspicion. A detainee is more likely to budge if the debriefer, using information from another source, can demonstrate that the detainee possesses knowledge of the particular subject.
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¶
- This tendency to reveal information when cornered with facts is one of the [Redacted] [Redacted] [Redacted] [Redacted]
¶<U) APPENDIX III: Email front [Redacted]
¶[[REDACTED" [Redacted] [Redacted] subject: could AQ be testing fthesource! a n d [Redacted] a t e : [Redacted] March! 2004. at 06:55 AM: Email from:
¶[Redacted] o [Redacted] cc: [Redacted] [ R E D A C T E [Redacted] l e i t : Re: could AQ be testing f the source! and
¶[Redacted] date: March[Redacted]00Cat 7:52:32 AM
673¶Re: eould AQ be tesi[Redacted]
¶[Redacted]
ee Subject: could AO be testing [Redacted] Oat®; 3 / [Redacted] 0 O 4 7:52:32 AM
Yes, that occured to me too. I agree w/ your concerns re [Redacted] aa well. It's aiwaya_gos5lble that they are just hearing the same "rumint" as well, however, >»h®n [Redacted] so i don't know. But again, I've been a bit c o n c e r i r e d a b o u [Redacted] K o c ^ . . [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted]
cc: Subject: could AQ be [Redacted] testing!
i1 w a was S I I [Redacted] struckU C K byY X N D thi3 weekend's reporting re an attack or^^ te the [Redacted] jjgnu^j^iMlugnee reported J [Redacted] worthless In terms of actionable i n t e l l i g e n c e , [Redacted] [Redacted] contrast, the 17 march 04 AQ statement below makes i t e x p l l c ! u T y clear that AO has no/no intention of attacking conus before the e l e c t i o n ; they want president bush to stay right where he i s . Now, AC knows a l l threat reporting causes panic in Washington a n ^ t h a ^ ^ ^ l e a k ^ s o o n a f t e r i t i s received - - as w i l l the reports f [Redacted] weekend — and t h i s would be an easy way to t e s t [Redacted] this t o say [Redacted] w r o n 9 ' oc
statement below i s anything more than disinformation, the [Redacted] |rsports [Redacted] and the AQ statement, however, caught my eye. [Redacted] [Redacted] [Redacted] [Redacted]
A word t o the i d i o t Bush[0] He know you l i v e the worst days of your l i f e in fear of the brigades of death that ruined your l i f e . We t e l l you we axe a i l keen that you do not lose the forthcoming elections. Ha are aware that any large-scale operation w i l l destroy your government but we do not want t h i s t o happen. Se will not find a person dumber[0) than you. You adopt force rather than wisdom and shrewdness. Yds, your stupidity and r e l i g i o u s fanaticism i s what we want because our nation w i l l not wake up from i t s sleep unless an enemy emerges that l i e s in wait for the nation. Actually, there i s no difference between
¶1 of 2 5/28/201* 10:00 PM
674¶Re: could AQ be testir
you and I Democratic presidential candidate John] Kerry. Kerry will take our nation unawares arxl Kill i t - Kerry and the Democrats possess enough deception t o give a f a c e - l i f t to atheism and convince the Arab and Islamic nation t o support i t in the name of modern!zation. Therefore, we are very keen that you, criminal Bush(01, will win the upcoming elections. '
¶2 of 2 5/28/2014 10:00 PM
675¶APPENDIX IV: CIA, Office of General Counsel draft Legal Appendix; Paragraph 5- HostUe Interrogations: Legal Considerations for CIA Officers, November 26,2002
676D-R-A-F-T- 26 November 2001 @ 1600
¶I. U.S. federal law makes it a crime for a U.S. citizen to torture someone both al home and abroad, even when directed to do so by superiors.
A. 18 U.S.C. §§ 2340 - 2340B implements the United Nations Coil veution Against Torture and Other Ciruel, Inhumane, or Degrading Treatment or Punishment, and incorporates vert>atUn the definition of "torture" from that treaty; namely, the Convention defines torture as "an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering," where "severe mental suffering" is further defined as "the prolonged mental harm resulting from" either causing or threatening infliction of severe physical pain; the administration or threat of administration of mind-altering drugs; the threat of imminent death; or threatening to do the above to someone else.
¶B. Use of necessity as a defense toprosecution in a U.S. court
- Israel's Supreme Court has recognized that government officials who are prosecuted for torture may use the affirmative defense of necessity—i.e., "for the purpose of. saving the life, liberty, body or property, of either himself or his fellow person, from substantial clanger of serious barm, imminent from the particular state of things , (circumstances), at the requisite timing, and absent alternative means for avoiding the harm."3 That is, a government officer can avoid criminal prosecution if the torture was necessary (o prevent a danger "certain to materialize" and when no other means of preventing the harm are available.
- The niling, however, specifically notes that although necessity can be used as &post factum defense, it cannot serve as a source of positive, ab initio authority for (be systemic (even if rare) use of torture as a valid interrogation tool.
- The U.S. Code does not contain a statutory necessity defense provision, but U.S. common law has recognized an analogous doctrine:
- State v. Marlev. 509 P.Td 1095,1097< 1973): Defendants were charged with criminal trespass on the property of Honeywell Corporation in Honolulu. They argued that they were seeking to stop the Vietnam War and raised as one of their defenses the "necessity defense." The court stated:
The "necessity defense" exonerates persons who commit a crime under the pressure of circumstances if the harm that would have
¶H.C. 5100/94, 4054/95,6536/95,5188/96,7563/97,7628/97,1043/99.
D-R-A-F-T 26 November 2001 # 1600
¶in HI 111 mi [Redacted]
677D-R-A-P-T 26 November 20M ® 1600 resulted front compliance with the law would have significantly exceeded die harm actually resultingfiomthe defendant's breach of the law. Successful use of the "necessity defense" requires (a) that there is no third and legal alternative available, (b) that the harm to be prevented be imminent, and (c) that * direct, causal relationship be reasonable anticipated to exist between defendant's action and the avoidance of harm.
¶Although the Marley court decided the necessity defense was not available to these particular defendants, the standard they set out is the norm.
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¶
- In United States v Seward 68? F.2d 1270,1275 {10* Cir. 1982) (en banc), cert, denied. 459 U.S. 1147 (1983), the court held that a defendant may successfully use a defense of necessity to excuse otherwise illegal acts if (1) there is no legal alternative to violating the law, <2) the harm to be prevented is imminent, and (3) a direct, causal relationship is reasonable anticipated to exist between defendant's action and the
- avoidance of harm. Under the defense of necessity, "one principle remains constant: if there was a reasonable, legal alternative to violating the law, 'a chance both to refuse Do do the criminal act and alsotoavoid the threatened harm,' the defense [] will fail," Id. at 1276, quoting United Slates v. Bai(ev. 444 U.S. 394 ((980). fo proving that there were no legal alternatives available to assist him, a defendant must show he was "confronted with ... a crisis which did not permit a selectionfromamong several solutions, some of which did not involve criminal acts." Id.
- See also United-States v. Contento-Pachon. 723 F.2d69l. 695 n.2 iff" Cir. 1984) (defense of necessity available when person faced with a choice of two evils and must decide whether to commit a crime or an alternative act that constitutes a greater evil); United States v. Nolan. 700 F.2d 479,484 (9* Cir.) (the necessity defense requires a showing that the defendant acted to prevent an imminent harm which no available options coutd similarly prevent).
- In suns: U.S. courts have not yet considered the necessity defense in the contcxt oftorture/murdcfr/assaultcases, primarily because in cases whtere one or two individuals were hurt out of necessity, this was treated as a self-defense analysis. See Tab 2, supra. It would, therefore, be a novel application of the necessity defense to avoid prosecution of U.S. officials who tortured to obtain information that saved many lives; however, if we follow the Israeli example, CIA could argue (hat the torture was necessary to prevent imminent, significant, physical harm to persons, where there is no other available means to pre vent the harm.
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¶inn1 LIHI in [Redacted]
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