C. Following Suspension of the Use of the CIA's Enhanced Interrogation Techniques, the CIA Obtains Approval from the OLC for the Intenogation of Three Individual Detainees

¶The May 2004 CIA Inspector General Special Review recommended that the CIA's general counsel submit in writing a request for the Department of Justice to provide the CIA with a "formal, written legal opinion, revalidating and modifying, as appropriate, the guidance provided" in the August 1, 2002, memorandum. It also recommended that, in the absence of such a written opinion, the DCI should direct that the CIA's enhanced interrogation techniques "be implemented only within the parameters that were mutually understood by the Agency and DoJ on 1 August 2002."²³¹⁹²³¹⁹ CIA Office of Inspector General, Special Review - Counterterrorism Detention and Interrogation Program, (2003-7123-IG), May 2004. After receiving the Special Review, Assistant Attorney General Jack Goldsmith informed the CIA that the OLC had never formally opined on whether the CIA's enhanced interrogation techniques would meet constitutional standards.²³²⁰²³²⁰ May 25, 2004, Talking Points for DC! Telephone Conversation widi Attorney General: DOJ's Legal Opinion Re: CIA's Counterterrorist Program (CT) Interrogation. This position was confirmed in a June 10, 2004, letter (Letter from Assistant Attorney General Jack L. Goldsmith III, to Scott Muller, General Counsel, Central Intelligence Agency, June 10,2004). On May 24, 2004, DCI Tenet, Deputy Director John McLaughlin, General Counsel Scott Muller, and others met to discuss the Department of Justice's comments, after which DCI Tenet directed that the use of the CIA's enhanced interrogation techniques, as well as the use of the CIA's "standard" techniques, be suspended²³²¹²³²¹ May 24, 2004, Memorandum for the Record from [Redacted] [Redacted] Legal Group, DCI Counterterrorism Center, Subject: Memorandum of Meeting with the DCI Regarding DOJ's Statement that DOJ has Rendered No Legal Opinion on Whether the CIA's Use of Enhanced Interrogation Techniques would meet Constitutional Standards; email from: [Redacted] C/RDG; to: [REDACTED]; cc: Jose Rodriguez, [REDACTED], [Redacted] [Redacted] [REDACTED], [REDACTED], [Redacted] subject: Interim Guidance for Standard and Enhanced Interrogations; date: May 25, 2004.Show full note On June 4, 2004, DCI Tenet issued a formal memorandum suspending the use of the techniques, pending policy and legal review. 2322

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¶As described in this summary, on July 2, 2004, Attorney General Ashcroft and Deputy Attorney General James Comey attended a meeting of select National Security Council principals, the topic of which was the proposed CIA interrogation of Janat Gul.²³²³²³²³ Janat Gul's interrogation is detailed in Volume III and more briefly in this summary. According to CIA records, the attorney general stated that the use of the CIA's enhanced interrogation techniques against Gul would be consistent with U.S. law and treaty obligations, although Ashcroft made an exception for the waterboard, which he stated required further review, "primarily because of the view that the technique had been employed in a different fashion than that which DOJ initially approved."²³²⁴²³²⁴ Letter from Assistant Attorney General Ashcroft to General Counsel Muller, July 7 , 2 0 0 4 (DTS #2009-1810, Tab 3); July 2, 2004, CIA Memorandum re Meeting with National Security Advisor Rice in the White House Situation Room, Friday 2 July Re: Interrogations and Detainee Janat Gul; July 6, 2004, Memorandum from Condoleezza Rice, Assistant to the President for National Security Affairs, to George Tenet, Director of Central Intelligence, Re: Janat Gul.Show full note On July 20, 2004, Ashcroft, along with Patrick Philbin and Daniel Levin from the Department of Justice, attended a National Security Council Principals Committee meeting at which Ashcroft stated that the use of the CIA's enhanced interrogation techniques described in the August 1, 2002, OLC memorandum, with the exception of the waterboard, would not violate U.S. statutes, the U.S. Constitution, or U.S. treaty obligations. The attorney general was then "directed" to prepare a written opinion addressing the constitutional issues, and the CIA was directed to provide further information to the Department of Justice with regard to the waterboard.²³²⁵²³²⁵ July 29, 2004, Memorandum for the Record from CIA General Counsel Scott Muller Re: Principals Meeting relating to Janat Gul on 20 July 2004. On July 22, 2004, Attorney General Ashcroft sent a letter to Acting DCI John McLaughlin stating that nine interrogation techniques (those addressed in the August 1, 2002, memorandum, with the exception of the waterboard) did not violate the U.S. Constitution or any statute or U.S. treaty obligations, in the context of the CIA interrogation of Janat Gul.²³²⁶²³²⁶ The one-paragraph letter did not provide legal analysis or substantive discussion of the interrogation techniques. (See letter from Attorney General John Ashcroft to Acting DCI John McLaughlin, July 22, 2004 (DTS #2009-1810, Tab 4).) :

¶On July 30, 2004, anticipating the interrogation of Janat Gul, the CIA provided the OLC for the first time a description of dietary manipulation, nudity, water dousing, the abdominal slap, standing sleep deprivation, and the use of diapers, all of which the CIA described as a "supplement" to the interrogation techniques outlined in the August 1, 2002, memorandum.²³²⁷²³²⁷ ' Letter from [Redacted] C Legal [Redacted] to Acting Assistant Attorney General Daniel Levin, July 30, 2004 (DTS #2009-1809). The CIA's descriptions of the interrogation techniques were incongruent with how the CIA had applied the techniques in practice. The CIA description of a minimum calorie intake was incongruent with the history of the program, as no minimum calorie intake existed prior to May 2004 and the March 2003 draft OMS guidelines allowed for food to be withheld for one to two days. 328 The CIA represented to the OLC that nude detainees were "not wantonly exposed to other detainees or detention facility staff," even though nude detainees at the CIA's DETENTION SITE COBALT were "kept in a central area outside the interrogation room" and were "walked around" by guards as a form of humiliation.²³²⁹²³²⁹ Interview Report, 2003-7123-1G, Review of Interrogations for Counterterrorism Purposes, [Redacted] April 14,2003. The CIA's description of water dousing made no mention of cold water immersion, which was used on CIA detainees and taught in CIA interrogator training.²³³⁰²³³⁰ Email from: [REDACTED] ( [Redacted] to: [Redacted] subject: Memo; date: March 15, 2004. See detainee reviews of Abu Hudhaifa and Muhammad Umar 'Abd al-Rahman aka Asadallah. The CIA representation describing a two-hour limit for the shackling of detainees' hands above their heads is incongruent with rccords of CIA detainees whose hands were shackled above their heads for extended periods, as well as the draft March 2003 OMS guidelines permitting such shackling for up to four hours²³³¹²³³¹ OMS Guidelines on Medical and Psychological Support to Detainee Interrogations, "First Draft," March 7, 2003; [Redacted] [Redacted] 2 8 2 4 6 lmerview Report, 2003-7123-IG, Review of The CIA further represented to the OLC that the use of diapers was "for sanitation and hygiene purposes," whereas CIA records indicate that in some cases, a central "purpose" of diapers was "[t]o cause humiliation" and "to induce a sense of helplessness."²³³²²³³² Interrogations for Counterterrorism P i i r p o s e [Redacted] April 5,2003; Interview Report, 2003-7123-IG, Review of Interrogations for CoLinterterrorism P u r p o s e [Redacted] April 30, 2003; Memorandum for [REDACTED] from [REDACTED] [Redacted] November [Redacted] 2002, Subject: Legal Analysis of [REDACTED] Personnel Participating in Interrogation at the CIA Detention Facility in [Redacted] '[DETENTION SITE COBALT]"). For example, Ridha al-Najjar was reported to have undergone "hanging," described as "handcuffing one or both of his wrists to an overhead horizontal bar" for 22 hours each day for two consecutive days. See Memorandum for [REDACTED], November [Redacted] 2002, Subiect^egal Analysis of [REDACTED] Personnel Participating in Interrogation at the CIA Detention Facility in [Redacted] [Redacted] (aka "[DETENTION SITE COBALT]". See also [Redacted] 10171 (101527Z J AN 03), indicating that Abd al-Rahim al-Nashiri "remained in the standing position, with hands tied overhead, overnight." 2332 [Redacted] interview of [Redacted] [CIA OFFICER 1], December 19, 2002; CIA Interrogation Program Draft Course Materials, March 11, 2003, pg. 28; CTC/RDG Interrogation Program, December 15,2003, pg. 10. DIRECTOR [Redacted] (251609Z JUL 02). See also "Standard Interrogation Techniques," attachment to email from: [Redacted] T S c o t t W. Muller, John Rizzo, [REDACTED], [Redacted] subject: revised interrogation discussion; date: July 19,2004. 1 1Show full note

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¶On August 13, 2004, CIA attorneys, medical officers, and other personnel met with Department of Justice attorneys to discuss some of the techniques for which the CIA was seeking approval, in particular sleep deprivation, water dousing, and the waterboard. When asked about the possibility that detainees subjected to standing sleep deprivation could suffer from edema, OMS doctors informed the Department of Justice attorneys that it was not a problem as the CIA would "adjust shackles or [the] method of applying the technique as necessary to prevent edema, as well as any chafing or over-tightness from the shackles." With regard to water dousing, CIA officers represented that "water is at normal temperature; CIA makes no effort to 'cool' the water before applying it." With respect to the waterboard, CIA officers indicated that "each application could not last more than 40 seconds (and usually only lasted about 20 seconds)."²³³³²³³³ August 11, 2004, Letter from [REDACTED], Assistant General Counsel, to Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel; August 27,2004, Memorandum for the Record from [REDACTED] Re: Meeting with Department of Justice Attorneys on 13 August, 2004, Regarding Specific Interrogation Techniques, Including the Waterboard. As detailed in the full Committee Study, each of these representations was incongnient with the operational history of the CIA program.

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£ [Redacted] ) On August 25, 2004, the CIA's Associate General Counsel [Redacted] [Redacted] a letter to the OLC stating that Janat Gul, who had been rendered to CIA custody

¶on July [Redacted] 2004, had been subjected to the attention grasp, walling, facial hold, facial slap, wall standing, stress positions, and sleep deprivation. The letter further stated that CIA interrogators "assess Gul not to be cooperating, and to be using a sophisticated counterinterrogation strategy," and that the further use of the same enhanced interrogation techniques would be "unlikely to move Gul to cooperate absent concurrent use" of dietary manipulation, nudity, water dousing, and the abdominal slap. The letter referenced the reporting from a CIA source,²³³⁴²³³⁴ As described in this summary, and in more detail in the Committee Study, the source later admitted to fabricating information related to the "pre-election" threat. stating: "CIA understands that before his capture, Gul had been working to facilitate a direct meeting between the [Redacted] CIA [Redacted] source reporting on the pre-election threat and Abu Faraj [al-Libi]

¶2335 himself."

¶The following day, August 26, 2004, Acting Assistant Attorney General Daniel Levin informed CIA Acting General Counsel John Rizzo that the use of the four additional interrogation techniques did not violate any U.S. statutes, the U.S. Constitution, or U.S. treaty obligations. Levin's advice relied on the CIA's representations about Gul, including that "there are no medical and psychological contraindications to the use of these techniques as you plan to employ them on Gul."²³³⁶²³³⁶ Letter to John Rizzo, Acting General Counsel, CIA; from Daniel Levin, Acting Assistant Attorney General, August 26, 2004 (DTS #2009-1810, Tab 6). In May 2005, the OLC again accepted the CIA's representations that a psychological assessment found that Gul was "alert and oriented and his concentration and attention were appropriate," that Gul's "thought processes were clear and logical; there was no evidence of a thought disorder, delusions, or hallucinations," and that there "were not significant signs of depression anxiety or other mental disturbance." See memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, May 10, 2005, Re: Application of 18 U.S.C. Sections 2340-2340A to Certain Techniques That May be Used in the Interrogation of a High Value al Qaeda Detainee (DTS #2009-1810, Tab 9).Show full note At the time, CIA records indicated: (1) that standing sleep deprivation had already caused significant swelling in Gul's legs; (2) that standing sleep deprivation continued despite Gul's visual and auditory hallucinations and that Gul was "not oriented to time or place";²³³⁷²³³⁷ [Redacted] 1 5 3 0 (081633Z AUG 04); [Redacted] 1541 (101228Z AUG 04) 11 II 11111 [Redacted] "MII (3) that CIA interrogators on-site did not believe that "escalation to enhanced pressures will increase [Gul's] ability to produce timely accurate locational and threat information";²³³⁸²³³⁸ [Redacted] 1567 (161730Z AUG 04) and (4) that CIA interrogators did not believe that Gul was "withholding imminent threat information."²³³⁹²³³⁹ 11574 (191346Z AUG 04)

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¶Levin's August 26, 2004, letter to Rizzo was based on the premise that "[w]e understand 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."²³⁴⁰²³⁴⁰ Letter to John Rizzo, Acting General Counsel, CIA; from Daniel Levin, Acting Assistant Attorney General, August 26, 2004 (DTS #2009-1810, Tab 6). Levin's understanding was based on the CIA's representation that "Gul had been working to facilitate a direct meeting between the [Redacted] CIA [Redacted] source reporting on the pre-election threat and Abu Faraj [al-Libi]."²³⁴¹²³⁴¹ Letter [Redacted] Associate General Counsel, CIA, to Dan Levin, Acting Assistant Attorney General, August 25,2004 (DTS #2009-1809). This information later proved to be inaccurate. As detailed elsewhere in this summary, the 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.²³⁴²²³⁴² from: [Redacted] to: [Redacted] [Redacted] [REDACTED], [Redacted] [Redacted]; subject: could AQ be testing [ASSET Y] and [Source Name REDACTED]?; date: March [Redacted] 2004, at 06:55 AM; email [Redacted] to [Redacted] c c : [Redacted] [Redacted] [Redacted] [Redacted] [REDACTED], [Redacted] j e c t : Re: could AQ be testing [ASSET Y] and [Source Name REDACTED]?; date: MarchH[Redacted]0047at7-52i32 AM. The fabricated source reporting is described elsewhere in this summary. ^^^^^^^ 2343 [Redacted] 1411 [Redacted] I L 2344 [Redacted] [Redacted] [Redacted] [Redacted] Email from: [REDACTED]; to: | subject: re ALEC [Redacted] November 10, 2004.Show full note The same CIA source admitted to fabricating the information after a [Redacted] in [Redacted] October 2004.2343 In November 2004, after the use of the CIA's enhanced interrogation techniques on Janat Gul, CIA's chief of Base at DETENTION SITE BLACK, where Janat Gul was interrogated, wrote that "describing [Gul] as 'highest ranking' gives him a stature which is undeserved, overblown and misleading." The chief of Base added that "[s]tating that [Gul] had 'long standing access to senior leaders in al-Qa'ida' is simply wrong."2344 In December 2004, CIA officers concluded that Janat Gul was "not the link to senior AQ leaders that [CIA Headquarters] said he was/is,"²³⁴⁵²³⁴⁵ CIA "Comments on Detainees," December 19, 2004, Notes from a CD from [DETENTION SITE BLACK]. and in April 2005 CIA officers wrote that "[t]here simply is no 'smoking gun' that we can refer to that would justify our continued holding of [Janat Gul]."²³⁴⁶²³⁴⁶ [Redacted] Email from: [REDACTED] (COB DETENTION SITE BLACK); to: [Redacted] cc: | [Redacted] [Redacted] subject: re [Redacted] date: April 30,2005. [Redacted] to: [Redacted] n [Redacted] [Redacted] [Redacted] i S d [REDACTED]; subject: questions from OLC for Art 16 opinion; date: April 12, 2005; email from: [Redacted]

¶By April 2005, as the OLC ncarcd completion of a new memorandum analyzing the legality of the CIA's enhanced interrogation techniques, the OLC sought information from the CIA on "what [the CIA] got from Janat Gul, was it valuable, [and] did it help anything...." The CIA did not immediately respond to this request, and the CIA's Associate General Counsel [Redacted] noted that DOJ personnel had "taken to calling [him] daily" for additional information.2347 Subsequently, on April 15, 2005, the CIA informed the OLC that "during most of Gul's debriefings, he has sought to minimize his knowledge of extremist activities and has provided largely non-incriminating information about his involvement in their networks."²³⁴⁸²³⁴⁸ April 15, 2 0 0 5 i f a x t o D O J Command Center, for [Redacted] Office of Legal Counsel, U.S. Department of Justice, from [Redacted] [Redacted] Legal Group, DCI Counterterrorist Center, re: Janat Gul. On May 10, 2005, the OLC issued a memorandum that stated, "[y]ou informed us that the CIA believed Gul had information about al Qaeda's plans to launch an attack within the United States... [o]ur conclusions depend on these assessments." The OLC referenced [Redacted] August 25, 2004, letter on Gul and the pre-election threat.²³⁴⁹²³⁴⁹ Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, May 10, 2005, Re: Application of 18 U.S.C. Sections 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee. In a May 30, 2005, memorandum, the OLC referred to Janat Gul as "representative of the high value detainees on whom enhanced techniques have been, or might be used," and wrote that "the CIA believed [that Janat Gul] had actionable intelligence concerning the pre-election threat to the United States."²³⁵⁰²³⁵⁰ Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, May 30, 2005, Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May be Used in the Interrogation of High Value Al Qaeda Detainees (DTS #2009-1810, Tab 11).Show full note In the same memorandum, the OLC conveyed a new CIA representation describing the effectiveness of the CIA's enhanced interrogation techniques on Janat Gul, which stated:

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"Gul has provided information that has helped the CIA with validating one of its key assets reporting on the pre-election threat."²³⁵¹²³⁵¹ Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, May 30, 2005, Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May be Used in the Interrogation of High Value Al Qaeda Detainees (DTS #2009-1810, Tab 11), citing Janat Gul Memo pp. 1-2. See April 15. 2005, fax to DO J Command Center, for [Redacted] Office of Legal Counsel, U.S. Department of Justice, from [Redacted] [Redacted] Legal Group, DCI Counterterrorist Center, re: Janat Gul.Show full note

¶There are no indications in the memorandum that the CIA informed the OLC that it had concluded that Gul had no information about the pre-election threat, which was the basis on which the OLC had approved the use of the CIA's enhanced interrogation techniques against Gul in the first place, or that CIA officers had determined that Gul was "not the man we thought he was." In September 2004, the OLC advised the CIA that the use of the CIA's enhanced interrogation techniques against Ahmed Khalfan Ghailani and Sharif al-Masri was also legal, based on the CIA representations that the two detainees were al- Qa'ida operatives involved in the "operational planning" of the pre-election plot against the United States.²³⁵²²³⁵² Letter to John A. Rizzo, Acting General Counsel, CIA; from Daniel Levin, September 6,2004 (DTS #2009- 1810, Tab 7); Letter to John A. Rizzo, Acting General Counsel, CIA; from Daniel Levin, September 20, 2004 (DTS #2009-1810, Tab 8). This CIA assessment was based on the same fabrications from the same CIA to: [Redacted] [Redacted] [Redacted] [Redacted] and questions from OLC for Art 16 opinion; date: April 14,2005.

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¶source.-3 Like Janat Gul, Ghailani and al-Masri were subjected to extended sleep deprivation and experienced hallucinations.²³⁵⁴²³⁵⁴ [Redacted] [REDACTED) 3242 ( [Redacted] ° 4 )