B. The CIA Interprets the August 1, 2002, Memorandum to Apply to Other Detainees, Despite Language of the Memorandum; Interrogations of Abu Zubaydah and Other Detainees Diverge from the CIA's Representations to the OLC

¶The CIA broadly interpreted the August 1, 2002, OLC memorandum to allow for greater operational latitude. For example, the memorandum stated that the legal advice was specific to the interrogation of Abu Zubaydah and the specific CIA representations about Abu Zubaydah; however, the CIA applied its enhanced interrogation techniques to numerous other CIA detainees without seeking additional formal legal advice from the OLC. As detailed elsewhere, the other detainees subjected to the CIA's enhanced interrogation techniques varied significantly in terms of their assessed role in terrorist activities and the information they were believed to possess. CIA records indicate that it was not until July 29, 2003, almost a year later, that the attorney general stated that the legal principles of the August 1, 2002, memorandum could be applied to other CIA detainees.²³⁰⁸²³⁰⁸ Letter from Assistant Attorney General Jack L. Goldsmith III to Director Tenet, June 18, 2004 (DTS #2004- 2710). In an August 2003 interview with the O I G [Redacted] T C Legal, [Redacted] stated that "every detainee interrogated is different in that they are outside the opinion because the opinion was written for Zubaydah." The context for [Redacted] s statement was the legality of the waterboarding of KSM. See interview of [Redacted] [Redacted] by [REDACTED], [REDACTED], and [REDACTED], Office of the Inspector General, August 20, 2003. _ _ 111111Show full note

¶The August 1, 2002, OLC memorandum also included an analysis of each of the CIA's proposed enhanced interrogation techniques with a description of how the CIA stated the techniques would be applied.²³⁰⁹²³⁰⁹ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, August 1, 2002, Interrogation of al Qaeda Operative (DTS #2009-1810, Tab I). However, in the interrogations of Abu Zubaydah and subsequent CIA detainees, the CIA applied the techniques in a manner that a Department of Justice attorney concluded "was quite different from the [description] presented in 2002."²³¹⁰²³¹⁰ Department of Justice Office of Professional Responsibility; Report, Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of 'Enhanced Interrogation Techniques' on Suspected Terrorists, July 29, 2009, pp. 140-41 (DTS #2010-1058). As reported by the CIA's inspector general, the CIA used the waterboarding technique against Abu Zubaydah, and later against KSM, in a manner inconsistent with CIA representations to the OLC, as well as the OLC's description of the technique in the August 1, 2002, memorandum. In addition, the CIA assured the OLC that it would be "unlikely" that CIA detainees subjected to sleep deprivation would experience hallucinations, and that if they did, medical personnel would intervene.²³¹¹²³¹¹ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, August 1, 2002, Interrogation of al Qaeda Operative (DTS #2009-1810, Tab 1). ^ ^ ^ ^ ^ However, multiple CIA detainees subjected to prolonged sleep deprivation experienced hallucinations, and CIA interrogation teams did not always discontinue sleep deprivation after the detainees had experienced hallucinations.²³¹²²³¹² [Redacted] [Redacted] [Redacted] ( [Redacted] N 0 4 ) ; [Redacted] 1308 i [Redacted] A [Redacted] 1 3 1 [Redacted] A N 0 4 [Redacted] 1530 [Redacted] 04) The CIA further represented to the OLC that Abu Zubaydah's recovery from his wound would not be impeded by the use of the CIA's enhanced interrogation techniques.²³¹³²³¹³ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, August 1, 2002, Interrogation of al Qaeda Operative (DTS #2009-1810, Tab 1). However, prior to the OLC memorandum, DETENTION SITE GREEN personnel stated, and CIA Headquarters had confirmed, that the interrogation proccss would take precedence over preventing Abu Zubaydah's wound from becoming infected.²³¹⁴²³¹⁴ [Redacted] 10536 (151006Z JUL 02); A U E C [Redacted] (I82321Z JUL 02). After the use of the CIA's enhanced interrogation techniques on Abu Zubaydah, [Redacted] reported that "[d]uring the most aggressive portions of [Abu Zubaydah's] interrogation, the combination of a lack of hygiene, sub-optimal nutrition, inadvertent trauma to the wound secondary to some of the stress positions utilized at that stage and the removal of formal, obvious medical care to further isolate the subject had an overall additive effect on the deterioration of the wound." See [Redacted] 10679 (250932Z AUG 02).Show full note Other CIA detainees were also subjected to the CIA's enhanced interrogation techniques, notwithstanding concerns that the interrogation techniques could exacerbate their injuries.²³¹⁵²³¹⁵ See Volume IE, including detainee reviews of Abu Hazim and Abd al-Kurim. The CIA also repeatedly used interrogation techniques beyond those provided to the OLC for review, including water dousing, nudity, abdominal slaps, and dietary manipulation.²³¹⁶²³¹⁶ As described later, the CIA sought OLC approval for these techniques on July 30, 2004, almost two years after the August 1,2002, memorandum. See letter from [Redacted] Legal [Redacted] to Acting Assistant Attorney General Levin, July 30, 2004 (DTS #2009-1809). 1 iiii 11111 [Redacted] "1"

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¶At the July 29, 2003, meeting of select National Security Council principals, Attorney General John Ashcroft expressed the view that "while appropriate caution should be exercised in the number of times the waterboard was administered, the repetitions described do not contravene the principles underlying DOJ's August 2002 opinion."-317 Records do not indicate that the attorney general opined on the manner (as opposed to the frequency) with which the waterboard was implemented, or on interrogation techniques not included in the August 2002 opinion. The differences between the CIA's enhanced interrogation techniques, as described by the CIA to the OLC in 2002, and the actual use of the techniques as described in the CIA Inspector General May 2004 Special Review, prompted concerns at the Department of Justice. On May 27, 2004, Assistant Attorney General Jack Goldsmith sent a letter to the CIA general counsel stating that the Special Review "raises the possibility that, at least in some instances and particularly early in the program, the actual practice may not have been congruent with all of these assumptions and limitations." In particular, Goldsmith's letter highlighted the statement in the Special Review that the use of the waterboard in SERE training was "so different from subsequent Agency usage as to make it almost irrelevant."²³¹⁸²³¹⁸ Letter from Assistant Attorney General Goldsmith to CIA General Counsel Scott Muller, May 27, 2004.

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