Committee Study of the Central Intelligence Agency's Detention and Interrogation Program · 2014
D. May 2005 OLC Memoranda Rely on Inaccurate Representations from the CIA Regarding the Interrogation Process, the CIA's Enhanced Interrogation Techniques, and the Effectiveness of the Techniques
D. May 2005 OLC Memoranda Rely on Inaccurate Representations from the CIA Regarding the Interrogation Process, the CIA's Enhanced Interrogation Techniques, and the Effectiveness of the Techniques
¶On May 4, 2005, Acting Assistant Attorney General Steven Bradbury faxed to CIA Associate General Counsel [Redacted] a s e t °f questions related to the CIA's enhanced interrogation techniques, in which Bradbury referenced medical journal articles. The following day, [Redacted] sent a letter to Bradbury stating that the CIA's responses had been composed by the CIA's Office of Medical Services (OMS). The CIA response stated that any lowering of the threshold of pain caused by sleep deprivation was "not germane" to the program, because studies had only identified differences in sensitivity to heat, cold, and pressure, and the CIA's enhanced interrogation techniques "do not involve application of heat, cold, pressure, any sharp objects (or indeed any objects at all)."2355 Letter from [Redacted] Associate General Counsel, CIA, to Steve Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, May 4, 2005. Multiple interrogation plans for CIA detainees called for "uncomfortably" cool temperatures along with sleep deprivation. See [Redacted] 10361 [Redacted] [Redacted] 1758 [Redacted] [Redacted] 10654 (030904Z MAR 03). With regard to the effect of sleep deprivation on the experience of water dousing, the CIA response stated that "at the temperatures of water we have recommended for the program the likelihood of induction of pain by water dousing is very low under any circumstances, and not a phenomenon we have seen in detainees subject to this technique."2356 Letter from [Redacted] Associate General Counsel, CIA, to Steve Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, May 4, 2005. The CIA had subjected detainees to cold water baths during periods of sleep deprivation. As a CIA psychologist noted, "I heard [Abu Hudhaifa] gasp out loud several times as he was placed in the tub." (See email from: [REDACTED]; to: [REDACTED]; subject: Memo; date: March 15, 2004.) The inspector general later reported that, as a result of being bathed in ice water, Abu Hudhaifa was "shivering" and interrogators were concerned about his body temperature dropping (2005-8085-IG, at 12). See also [Redacted] [Redacted] [Redacted] In response to Bradbury's query as to when edema or shackling would become painful as a result of standing sleep deprivation, the CIA responded, "[w]e have not observed this phenomenon in the interrogations performed to date, and have no reason to believe on theoretical grounds that edema or shackling would be more painful," provided the shackles are maintained with "appropriate slack" and "interrogators follow medical officers' recommendation to end standing sleep deprivation and use an alternate technique when the medical officer judges that edema is significant in any way." The CIA response added that the medical officers' recommendations "are always followed," and that "[d]etainees have not complained about pain from edema." Much of this information was inaccurate.2357 Letter from [Redacted] s o c i ate General Counsel, CIA, to Steve Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, May 4, 2005. Numerous detainees subjected to standing sleep deprivation suffered from edema. (See[Redacted] 34098 [Redacted] [Redacted] (12502 1309Z AUG 03); [Redacted] (251619Z JUN [Redacted] 1246 (171946Z AUG 03); [Redacted] 9 ^ 1 6 1 5 2 9 Z FEB 03); [Redacted] 10429 ( 1 0 1 2 1 5 Z F E B 0 3 [Redacted] l 0 9 0 9 (201918Z MAR 03); [Redacted] 42206 (191513Z JUL 03).) Detainees sometimes complained of pain and swelling [Redacted] not always discontinued with the onset of edema.
420¶Bradbury further inquired whether it was "possible to tell reliably (e.g. from outward physical signs like grimaces) whether a detainee is experiencing severe pain." The CIA responded that "all pain is subjective, not objective,"2358 Letter from [Redacted] Associate General Counsel, CIA, to Steve Bradbury, Acting Assistant Attorney General, Office ofLegalCounsel, May 4, 2005. adding:
"Medical officers can monitor for evidence of condition or injury that most people would consider painful, and can observe the individual for outward displays and expressions associated with the experience of pain. Medical officer [sic] can and do ask the subject, after the interrogation session has concluded, if he is in pain, and have and do provide analgesics, such as Tylenol and Aleve, to detainees who report headache and other discomforts during their interrogations. We reiterate, that an interrogation session would be stopped if, in the judgment of the interrogators or medical personnel, medical attention was required."2359 Letter from [Redacted] Associate General Counsel, CIA, to Steve Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, May 4, 2005.
¶As described elsewhere, multiple CIA detainees were subjected to the CIA's enhanced interrogation techniques despite their medical conditions.2360 See, for e x a m p l [Redacted] 10536 (151006Z JULY 0 2 ) ; A L E [Redacted] (182321Z JUL 02); [Redacted] 10647 (201331Z AUG 02); [Redacted] 10618 (121448Z AUG 02); [Redacted] 6 7 9 (250932Z AUG 02); DIRECTOR [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] 38161 (131326ZMAY 03); D I R E C T O [Redacted] B [Redacted] A Y 03); DIRECTOR [Redacted] [Redacted] [Redacted]34098 [Redacted] [Redacted] 3 4 [Redacted] 134310 [Redacted] See also detainee reports and reviews in Volume HI.
¶Bradbury's fax also inquired whether monitoring and safeguards "will effectively avoid severe physical pain or suffering for detainees," which was a formulation of the statutory definition of torture under consideration. Despite concerns from OMS that its assessments could be used to support a legal review of the CIA's enhanced interrogation techniques,2361 On April 11, 2005, after reviewing a draft OLC opinion, OMS personnel wrote a memorandum [Redacted] [Redacted] that stated, "[s]imply put, OMS is not in the business of saying what is acceptable in causing discomfort to other human beings, and will not take on that burden.... OMS did not review or vet these techniques prior to their introduction, but rather came into this program with the understanding of your office and DOJ that they were already determined as legal, permitted and safe. We see this current iteration [of the OLC memorandum] as a reversal of that sequence, and a relocation of those decisions to OMS. If this is the case, that OMS has now the responsibility for determining a procedure's legality through its determination of safety, then we will need to review all procedures in that light given this new responsibility." See email from: [Redacted] to [Redacted] cc: [REDACTED], [Redacted] [Redacted] [Redacted] [Redacted] l [Redacted] subject: 8 April Draft Opinion from DOJ - OMS Concerns; date: April 11,2005, at 10:12 AM. IIII 11 III i [Redacted] 'I m i "iiii the CIA's response stated:
¶in their lower extremities. (See, for e x a m p l [Redacted] 2615 (201528Z AUG [Redacted] 2619 (211349Z AUG O T [Redacted] 2620 (221303Z AUG 0 7 ) [Redacted] 6 2 3 (231234Z AUG 0 7 ) [Redacted] 6 2 9 (251637Z AUG 07); [Redacted] 4 2 (27134IZ AUG 07); [Redacted] 6 4 3 (271856Z AUG 07).) As noted, standing sleep deprivation was
421"[i]t is OMS's view that based on our limited experience and the extensive experience of the military with these techniques, the program in place has effectively avoided severe physical pain and suffering, and should continue to do so. Application of the thirteen techniques2362 -pjle OLC was, at the time, analyzing the legality of 13 techniques, including the 10 techniques outlined in the OLC's August 1, 2002, memorandum, and additional techniques for which die CIA sought OLC approval in 2004. has not to date resulted in any severe or permanent physical injury (or any injury other than transient bruising), and we do not expect this to change."2363 Letter from [Redacted] Associate General Counsel, CIA, to Steve Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, May 4, 2005.
¶In May 2005, Principal Deputy Assistant Attorney General Steven Bradbury signed three memoranda that relied on information provided by the CIA that was inconsistent with CIA's operational records. On May 10, 2005, Bradbury signed two memoranda analyzing the statutory prohibition on torture with regard to the CIA's enhanced inteiTogation techniques and to the use of the intenogation techniques in combination.2364 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); 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 the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees (DTS #2009-1810, Tab 10). On May 30, 2005, Bradbury signed another memorandum examining U.S. obligations under the Convention Against Torture.2365 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). 23<i6 ah Q f t j l e s e a s s e i-ti o n s w e r e inaccurate. See Volume III for examples of CIA detainees being immediately subjected to the CIA's enhanced interrogation techniques, including [Redacted] 34491 (051400Z MAR 03). See also Volume III for details on other interrogations in 2003, when at least six detainees that year were stripped and shackled, nude, in the standing stress position for sleep deprivation or subjected to other enhanced interrogation techniques prior to being qui RECTOR [Redacted] [Redacted] FEB 39077 (271719Z MAY 03)). The memoranda approved 13 techniques: (1) dietary manipulation, (2) nudity, (3) attention grasp, (4) walling, (5) facial hold, (6) facial slap or insult slap, (7) abdominal slap, (8) cramped confinement, (9) wall standing, (10) stress positions, (11) water dousing, (12) sleep deprivation (more than 48 hours), and (13) the waterboard. The three memoranda relied on numerous CIA representations that, as detailed elsewhere, were incongruent with CIA records, including: (1) the CIA's enhanced interrogation techniques would be used only when the interrogation team "considers them necessary because a detainee is withholding important, actionable intelligence or there is insufficient time to try other techniques," (2) the use of the techniques "is discontinued if the detainee is judged to be consistently providing accurate intelligence or if he is no longer believed to have actionable intelligence," (3) the "use of the techniques usually ends after just a few days when the detainee begins participating," (4) the interrogation techniques "would not be used on a detainee not reasonably thought to possess important, actionable intelligence that could not be obtained otherwise," and (5) the interrogation process begins with "an open, non-threatening approach" to discern if the CIA detainee would be cooperative.2366
422¶The OLC memoranda also relied on CIA representations regarding specific interrogation techniques that were incongruent with the operational history of the program. For example, the CIA informed the OLC that it maintained a 75 degree minimum room temperature for nude detainees as "a matter of policy," with a minimum of 68 degrees in the case of technical problems. This information was inconsistent with CIA practice both before and after the CIA's representations to the OLC.2367 Letter from [Redacted] l C Legal [Redacted] to Acting Assistant Attorney General Levin, December 30, 2004 (DTS #2009-1809). See, for example, [Redacted] 131118 [Redacted] [Redacted] 131429(1613032 [Redacted] DEC 02); [Redacted] 110006 (070902Z DEC 02); [REDACTED] 33962 (211724Z FEB 03); [Redacted] 134031 (231242ZFEB 0 3 [Redacted] 4 5 7 5 [Redacted] 134354 [Redacted] [Redacted] 03); I HI I I IIII [Redacted] [Redacted] I I 03). Email to: [Redacted]romOREDACTED]; subject: Medical Evaulation/Updat[Redacted]047);date: March|[Redacted] 2004. Email to: [Redacted] o m . [REDACTED]; subject: Medical Evaluation/Update [Redacted] (047); date: March 8, 2004. E m a i l t [Redacted] from: [REDACTED]; subject: Medical Evaluation/Update [Redacted] (047); date: March 9, 2004. [Redacted] 7 ( 3 0 0 6 2 4 Z MAY 05); [Redacted] 9 7 (021612Z DEC 05). The OLC relied on the CIA representation that standing sleep deprivation would be discontinued in the case of significant swelling of the lower extremities (edema), whereas in practice the technique was repeatedly not stopped when edema occurred.2368 See, for e x a m p l [Redacted] 1 0 9 ° 9 (201918Z MAR 0 3 X [Redacted] 2 2 (230851Z AUG 07). The OLC also repeated CIA representations that constant light was necessary for security, even though the CIA had subjected detainees to constant darkness.2369 According to a CIA cable, cells at DETENTION SITE COBALT were "blacked out at alHime^ising curtains plus painted exterior windows. And double doors. The lights are never turned on." (See [Redacted] [Redacted] 28246 [Redacted] Upon finding Ramzi bin al-Shibh "cowering in the corner, shivering" when the light in his cell burned out, interrogators decided to use darkness as an interrogation technique. He was then placed in sleep deprivation "standing, shackled feet and hands, with hands over his head, naked, in total darkness." See [Redacted] 10521 (191750Z FEB 0 3 ) [Redacted] 0 5 2 5 (200840Z FEB 03). Additional CIA representations accepted by the OLC—and found to be inconsistent with CIA practice —related to: (1) the exposure of nude detainees to other detainees and detention facility staff,2370 [Redacted] interview of [Redacted] [CIA OFFICER 1], December 19, 2002. CIA Interrogation Program Draft Course Materials, March 11, 2003, p. 28. CTC/RDG Interrogation Program, December 15, 2003. D l R E C T O [Redacted] (251609Z JUL 02). See also "Standard Interrogation Techniques," attachment to email from: [Redacted] o : Scott W. Muller, John Rizzo, [REDACTED], [Redacted] subject: revised interrogation discussion; date: July 19, 2004. (2) the use of water dousing—specifically the inaccurate representation that the technique did not involve immersion, (3) the use of shackles in standing sleep deprivation, (4) the likelihood of hallucinations during sleep deprivation, (5) the responsibility of medical personnel to intervene when standing sleep deprivation results in hallucinations, and (6) the purpose and the use of diapers on CIA detainees.2371 Letter from [Redacted] T C Legal [Redacted] to Acting Assistant Attorney General Levin, December 30, 2004 (DTS #2009-1809).
¶The OLC repeated the CIA's representations that "the effect of the waterboard is to induce a sensation of drowning," that "the detainee experiences this sensation even if he is aware that he is not actually drowning," and that "as far as can be determined, [Abu
¶03)); Abu Yasir al-Jaza'iri [Redacted] [Redacted] I I Abdullah
¶[Redacted] 35787 (1 [Redacted] [Redacted] [Redacted] Abu Hudhaifa [Redacted] 3 8 5 7 [Redacted] A Y 03)); H a m b [Redacted] 1241
¶[Redacted] and Majid Khan [Redacted] 46471 (241242Z MAY 03)7[Redacted]
423¶Zubaydah and KSM] did not experience physical pain or, in the professional judgment of doctors, is there any medical reason to believe they would have done so." The OLC further accepted that physical sensations associated with waterboarding, such as choking, "end when the application ends."2372 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); 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 the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees (DTS #2009-1810, Tab 10); 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). This information is incongruent with CIA records. According to CIA records, Abu Zubaydah's waterboarding sessions "resulted in immediate fluid intake and involuntary leg, chest and arm spasms" and "hysterical pleas."2373 [Redacted] 106[Redacted]AUG [Redacted] See from: [Redacted] [Redacted] t 0 : cc: [Redacted] subject: More; A medical officer who oversaw the interrogation of KSM stated that the waterboard technique had evolved beyond the "sensation of drowning" to what he described as a "series of near drownings."2374 April 10, 2003, at 5:59: 27 PM. Physical reactions to waterboarding did not necessarily end when the application of water was discontinued, as both Abu Zubaydah and KSM vomited after being subjected to the waterboard.2375 [Redacted] 10644 (201235Z AUG 02); email from: [REDACTED]; to: [Redacted] and [REDACTED]; subject: Re: So it begins; date: August 4, 2002, at 09:45:09 AM; [Redacted] 10803(131929Z MAR 03). Further, as previously described, during at least one waterboard session, Abu Zubaydah "became completely unresponsive, with bubbles rising through his open, full mouth." He remained unresponsive after the waterboard was rotated upwards. Upon medical intervention, he regained consciousness and expelled "copious amounts of liquid."2376 See Abu ZubaydahandKSM detainee reviewsinVolume 111, including [Redacted] 1 0 8 0 3 (131929Z MAR 03). See email from: [Redacted] QMS; to: [Redacted] and [REDACTED]; subject: Re: Departure; date: March 6, 2003, at 7:11:59 PM; email from: [Redacted] M S ; to [REDACTED] and [REDACTED]^ubiect: Re: Acceptable lower ambient temperatures; date: March 7, 2003, at 8:22 PM; email from: [Redacted] OMS; to: [REDACTED] and [REDACTED]; subject: Re: Talking Points for review and comment; date: August 13, 2004, at 10:22 AM; email from: [Redacted] to: [REDACTED], [REDACTED], [REDACTED], [REDACTED], and [REDACTED]; subject: Re: DiscussionwithDanLevin- AZ; date: October 26, 2004, at 6:09 PM. The CIA also relayed information to the OLC on the frequency with which the waterboard could be used that was incongruent with past operational practice.2377 Letter from [Redacted] T C Legal [Redacted] to Acting Assistant Attorney General Dan Levin, August 19, 2004 (DTS# 2009-1809). The OLC, having been informed by the CIA that 40 seconds was the maximum length of a single waterboard application, noted that "you have informed us that this maximum has rarely been reached." This is inaccurate. KSM was subjected to 40-second exposures at least 19 times. [Redacted]
¶The May 10, 2005, memorandum analyzing the individual use of the CIA's enhanced interrogation techniques accepted the CIA's representations that CIA interrogators are trained for "approximately four weeks," and that "all personnel directly engaged in the interrogation of persons detained... have been appropriately screened (from the medical, psychological and security standpoints)."2378 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 jaeda Detainee (DTS #2009-1810, Tab 9). As described in this summary, when [Redacted] T C Legal, [Redacted] [Redacted], insisted that CTC Legal vet and review the background of CIA personnel involved in the CIA's interrogations, he directly linked this review to the legality of the CIA's enhanced interrogation techniques. [Redacted] wrote: "we will be forced to Disapprove [sic] the participation of specific personnel in the use of enhanced techniques unless we have ourselves vetted them and are satisfied with their qualifications and suitability for what are clearly unusual measures that are lawful only when practiced correctly by personnel whose records clearly demonstrate their suitability for that role." The chief of CTC, Jose Rodriguez, objected to this proposal. Sec email from: [Redacted] T [Redacted] / L G L ; to: [REDACTED]; cc: Jose Rodriguez, [REDACTED], [ R E D A C T E [Redacted] b i e c t : EYES ONLY; date: November [Redacted] 2002, at 03:13:01 PM; email from: Jose R o d r i g u e z [Redacted] [Redacted]TC/LGL; cc: [REDACTED], [REDACTED], [REDACTED], [REDACTED], [Redacted] e c t : EYES ONLY; date: N o v e m b e [Redacted] 2002, at 04:27 PM. The CIA representations about training and screening were incongruent with the operational history of the CIA program. CIA records indicate that CIA officers and contractors who conducted CIA interrogations in 2002 did not undergo any interrogation training. The first interrogator training course did not begin until November 12, 2002, by which time at least 25 detainees had been taken into CIA custody.2379 Y j l e f i n i n g to conduct the CIA's enhanced interrogation techniques required only approximately 65 hours of classroom and operational instruction. December 4, 2002, Training Report, High Value Target Interrogation and Exploitation (HVTIE) Training Seminar 12-18 Nov 02, (pilot running). Numerous CIA interrogators and other CIA personnel associated with the program had either suspected or documented personal and professional problems that raised questions about their judgment and CIA employment. This group of officers included individuals who, among other issues, had engaged in inappropriate detainee interrogations, had workplace anger management issues, and had reportedly admitted to sexual assault.2380 / \ m o n g other abuses, [Redacted] had engaged in "Russian Roulette" with a detainee. (See Memorandum for A ril Chief, Staff and Operations Branch from [REDACTED], [Redacted] P '980, Subject: [Redacted] [Redacted]l984, Memorandum for Inspector General from [REDACTED], Inspector, via Deputy Inspector General, re [Redacted] [Redacted] [Redacted] [CIA OFFICER 2], who threatened 'Abd al- Rahim al-Nashiri with a gun and a power drill, [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [REDACTED], [Redacted] [Redacted] See email from: [REDACTED]; to [REDACTED], [REDACTED], [REDACTED], and [REDACTED]; subject: [Redacted]
424 425¶Finally, the OLC accepted a definition of "High Value Detainee" conveyed by the CIA2381 Fax to Acting Assistant Attorney General Levin from [Redacted] January 4, 2005 (DTS #2009-1809). that limited the use of the CIA's enhanced interrogation techniques to "senior member[s]" of al-Qa'ida or an associated terrorist group who have "knowledge of imminent terrorist threats" or "direct involvement in planning and preparing" terrorist actions, However, at the time of the OLC opinion, the CIA had used its enhanced interrogation techniques on CIA detainees who were found neither to have knowledge of imminent threats nor to have been directly involved in planning or preparing terrorist actions. Some were not senior al-Qa'ida members,2382 See detainee reviews for Suleiman Abdullah and Janat Gul in Volume III for additional information. or even members of al-Qa'ida.2383 See detainee review for Rafiq bin Bashir bin Halul Al-Hami in Volume III for additional information. Others were never suspected of having information on, or a role in, terrorist plotting and were suspected only of having information on the location of UBL or other al-Qa'ida figures,2384 See detainee review for Ridha Ahmad al-Najjar in Volume 111 for additional information. or were simply believed to have been present at a suspected al-Qa'ida guesthouse.2385 See detainee reviews for Tawfiq Nasir Awad al-Bihani and Arsala Khan in Volume III for additional information. A year later, [Redacted] Legal wrote to Acting Assistant Attorney General Steven Bradbury suggesting a new standard that more closely reflected actual practice by allowing for the CIA detention and interrogation of detainees to be based on the belief that the detainee had information that could assist in locating senior al-Qa'ida leadership.2386 Letter from [Redacted] Legal [Redacted] to Acting Assistant Attorney General Bradbury, May 23, 2006 (DTS #2009-1809). The OLC modified the standard in a memorandum dated July 20, 2007.2387 Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, July 20, 2007, Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees (DTS #2009-1810, Tab 14). By then, the last CIA detainee, Muhammad Rahim, had already entered CIA custody.2388 [Redacted] 6439 [Redacted] ; [Redacted] 7 5 1 6 [Redacted] Muhammad Rahim entered CIA i n iml nn lul [Redacted] 'INI 11 II 11111 [Redacted] I II I IN
¶The May 30, 2005, OLC memorandum analyzing U.S. obligations under the Convention Against Torture relied heavily on CIA representations about the intelligence obtained from the program. Many of these representations were provided in a March 2, 2005, CIA memorandum known as the "Effectiveness Memo," in which the CIA advised that the CIA program "works and the techniques are effective in producing foreign intelligence." The "Effectiveness Memo" stated that "|w]e assess we would not have succeeded in overcoming the resistance of Khalid Shaykh Muhammad (KSM), Abu Zubaydah, and other equally resistant high-value terrorist detainees without applying, in a careful, professional and safe manner, the full range of interrogation techniques."2389 CIA Memorandum for Sieve Bradbury at die Department of Justice, dated March 2,2005, from [Redacted] [Redacted] [Redacted] Legal Group, DCI Counterterrorist Center, subject "Effectiveness of the CIA Counterterrorist Interrogation Techniques." The CIA "Effectiveness Memo" further stated that "[p]rior to the use of enhanced techniques against skilled resistors [sic] like KSM and Abu Zubaydah—the two most prolific intelligence producers in our control—CIA acquired little threat information or significant actionable intelligence information." As described in this summary, the key information provided by Abu Zubaydah that the CIA attributed to the CIA's enhanced interrogation techniques was provided prior to the use of the CIA's enhanced interrogation techniques. KSM was subjected to CIA's enhanced interrogation techniques within minutes of his questioning, and thus had no opportunity to divulge information prior to their use. As described elsewhere, CIA personnel concluded the waterboard was not an effective interrogation technique against KSM.2390 Interview of [Redacted] y [REDACTED] and [REDACTED], Office of the Inspector General, May 15,2003; I n t e r v i e [Redacted] by [REDACTED] and [REDACTED], Office of the Inspector General, October 22, 2003; [Redacted] 1715 (201047Z MAY 03); Sametime Communication, [Redacted] a n d [Redacted] [Redacted] 15/Aug/06, 10:28:38 to 10:58:00; Interview of [Redacted] E D A C T E D ] and [REDACTED], Office of the Inspector General, April 3, 2003; Sametime C o m m u n i c a t i [Redacted] and [REDACTED], 02/May/05, 14:51:48 to 15:17:39; Interview of [Redacted] by [REDACTED], [REDACTED], and [REDACTED], Office of the Inspector General, August 20, 2003.
¶[Redacted] [Redacted] [Redacted]
426[ [Redacted] [REDACTED], [Redacted] [Redacted] For more information, see Volume III.
¶Under a section entitled, "Results," the CIA "Effectiveness Memo" represented that the "CIA's use of DOJ-approved enhanced interrogation techniques, as part of a comprehensive interrogation approach, has enabled CIA to disrupt terrorist plots, capture additional terrorists, and collect a high volume of critical intelligence on al-Qa'ida." It then listed 11 examples of "critical intelligence" acquired "after applying enhanced interrogation techniques":2391 Emphasis in the original. the "Karachi Plot," the "Heathrow Plot," the "Second Wave," the "Guraba Cell," "Issa al-Hindi," "Abu Talha al-Pakistani," "Hambali's Capture," "Jafaar al-Tayyar," the "Dirty Bomb Plot," the "Shoe Bomber," and intelligence obtained on "Shkai, Pakistan." These representations of "effectiveness" were almost entirely inaccurate and mirrored other inaccurate information provided to the White House, Congress, and the CIA inspector general.2392 See list of 20 CIA representations included in this summary and additional details in Volume II. Representations regarding Abu Talha al-Pakistani. which were less frequent, are also described this summary and in greater detail in Volumes II and III. In addition, on April 15, 2005, the CIA provided the OLC with an eight-page document entitled, "Briefing Notes on the Value of Detainee Reporting." The CIA "Briefing Notes" document repeats many of the same CIA representations in the "Effectiveness Memo," but added additional inaccurate information related to the capture of Iyman Faris.2393 April 15, 2005,10:47AM, fax to DOJ Command Center for [Redacted] Office of Legal Counsel, U.S. Department of Justice, from [Redacted] [Redacted] Legal Group, DCI Counterterrorist Center. Cover note: [Redacted] , Answers to some of your questions," with attachment entitled "Briefing Notes on the Value of Detainee Reporting."
¶The OLC's May 30, 2005, memorandum relied on the CIA's inaccurate representations in the "Effectiveness Memo" and the "Briefing Notes" document in determining that the CIA's enhanced interrogation techniques did not violate the Fifth Amendment's prohibition on executive conduct that "shocks the conscience," indicating that this analysis was a "highly context-specific and fact-dependent question." The OLC also linked its analysis of whether the use of the CIA's enhanced interrogation techniques was "constitutionally arbitrary" to the representation by the CIA that its interrogation program produced "substantial quantities of otherwise unavailable actionable intelligence."2394 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. The CIA's representations to the OLC that it obtained "otherwise unavailable actionable intelligence" from the use of the CIA's enhanced interrogation techniques were inaccurate.2395 See specific CIA examples of the "Results" of using the "CIA's use of DOJ-approved enhanced interrogation techniques" in March 2, 2005, Memorandum for Steve Bradbury from [Redacted] [Redacted] Legal Group, DCI Counterterrorist Center, "Effectiveness of the CIA Counterterrorist Interrogation Techniques." The specific representations in the "Briefing Notes" document were similar to those in the CIA's "Effectiveness Memo" and included references to detainee reporting on Jose Padilla, Hambali, Dhiren Barot, Sajid Badat, Iyman Faris, Jaffar al- Tayyar, the Heathrow Airport plotting, and the Karachi plotting.
427¶The OLC memorandum repeated specific inaccurate CIA representations, including that the waterboard was used against Abu Zubaydah and KSM "only after it became clear that standard interrogation techniques were not working"; that the information related to the "Guraba Cell" in Karachi was "otherwise unavailable actionable intelligence"; that Janat Gul was a "high value detainee"; and that information provided by Hassan Ghul regarding the al-Qa'ida presence in Shkai, Pakistan, was attributable to the CIA's enhanced interrogation techniques.2396 p o r example, as detailed elsewhere in this review, Hassan Gul provided detailed information on al-Qa'ida's presence in Shkai, Pakistan, prior to the use of the CIA's enhanced interrogation techniques. Citing CIA information, the OLC memorandum also stated that Abu Zubaydah was al-Qa'ida's "third or fourth highest ranking member" and had been involved "in every major terrorist operation carried out by al Qaeda," and that "again, once enhanced techniques were employed," Abu Zubaydah "provided significant information on two operatives... who planned to build and detonate a 'dirty bomb' in the Washington DC area." The OLC repeated additional inaccurate information from the CIA related to KSM's reporting, including representations about the "Second Wave" plotting, the Heathrow Airport plotting, and the captures of Hambali, Iyman Faris, and Sajid Badat.2397 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. The OLC relied on CIA representations that the use of the CIA's enhanced interrogation techniques against 'Abd al- Rahim al-Nashiri produced "notable results as early as the first day," despite al-Nashiri providing reporting on the same topics prior to entering CIA custody. The OLC also repeated inaccurate CIA representations about statements reportedly made by Abu Zubaydah and KSM2398 The OLC memorandum stated that "[b]oth KSM and Zubaydah had 'expressed their belief that the general US population was 'weak,' lacked resilience, and would be unable to 'do what was necessary' to prevent the terrorists from succeeding in their goals.'" As described elsewhere in this summary, and in more detail in the full Committee Study, CIA records indicate that KSM and Abu Zubaydah did not make these statements. The memorandum also repeated CIA representations about KSM's comment, "Soon, you will know," and Abu Zubaydah's reported statements about being "permitted by Allah" to provide information. As described in this summary, these representations are not supported by CIA records.
428¶[Redacted] ) Finally, the May 30, 2005, OLC memorandum referenced the CIA Inspector General May 2004 Special Review, stating: "wc understand that interrogations have led to specific, actionable intelligence as well us a general increase in the amount of intelligence regarding al Qaeda and its affiliates."2399 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. The OLC memorandum cited pages in the Special Review that included inaccurate information provided by CIA personnel to the CIA's OIG, including representations related to Jose Padilla and Binyam Muhammad, Hambali and the "Al- Qa'ida cell in Karachi," the Paruchas, Iyman Faris, Salch al-Marri, Majid Khan, the Heathrow Airport plotting, and other "plots."2400 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 1ftof the Convention Against Torture to Certain Techniques that May be Used in the Interrogation of High Value Al Qaeda Detainees, pp. 10-11, citing 1G Special Review, pp. 85-91.