E. After Passage of the Detainee Treatment Act, OLC Issues Opinion on CIA Conditions of Confinement, Withdraws Draft Opinion on the CIA's Enhanced Interrogation Techniques After (he U.S. Supreme Court Case of Hamdan v. Rumsfeld

¶On December 19, 2005, anticipating the passage of the Detainee Treatment Act. Acting CIA General Counsel John Rizzo requested that the OLC review whether the CIA's enhanced interrogation techniques, as well as the conditions of confinement at CIA detention facilities, would violate the Detainee Treatment Act.²⁴⁰¹²⁴⁰¹ -4PI The Detainee Treatment Act passed on December 30, 2005. Letter from Senior Deputy General Counsel John Rizzo to Acting Assistant Attorney General Bradbury, December 19, 2005 (DTS #2009-1809). In April 2006, attorneys at OLC completed initial drafts of two legal memoranda addressing these questions.²⁴⁰²²⁴⁰² -4n2 April 19,2006, Fax from [Redacted] [Redacted] Legal Group, CIA Counterterrorism Center to DOJ Command Center for Steve Bradbury {DTS #2009-1809). In June 2006, however, the U.S. Supreme Court case of Hamdan v. Rumsfeld prompted the OLC to withdraw its draft memorandum on the impact of the Detainee Treatment Act on the CIA's enhanced interrogation techniques. As [Redacted] T C Legal explained, the OLC would prepare "a written opinion 'if we want'... but strongly implied wc shouldn't seek it" 2403 As described in a July 2009 report of the Department of Justice Office of Professional Responsibility, the Administration determined that, after the Hamdan decision, it would need new legislation to support the continued use of the CIA's enhanced interrogation techniques²⁴⁰⁴²⁴⁰⁴ 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 T ~ )58).

¶Even as it withdrew its draft opinion on the CIA's enhanced interrogation techniques, the OLC continued to analyze whether the CIA's conditions of confinement violated the Detainee Treatment Act. To support this analysis, the CIA asserted to the OLC that loud music and white noise, constant light, and 24-hour shackling were all for security purposes, that shaving was for security and hygiene purposes and was conducted only upon intake and not as a "punitive step," that detainees were not exposed to an "extended period" of white noise, and that CIA detainees had access to a wide array of amenities.²⁴⁰⁵²⁴⁰⁵ Letter from Senior Deputy General Counsel John Rizzo to Acting Assistant Attorney General Bradbury, December 19, 2005 (DTS #2009-1809). January 25, 2006, L e t t e ^ o S t e v ^ m d b u r y ^ c t i n g Assistant Attorney General, Office of Legal Counsel, Department of Justice, from [Redacted] [Redacted] T C Legal, CIA (DTS #1809-2009). This information is incongruent with CIA records. Detainees were routinely shaved, sometimes as an aid to interrogation; detainees who were "participating at an acceptable level" were permitted to grow their hair and beards.²⁴⁰⁶²⁴⁰⁶ See, f o r e x a m p [Redacted] 3 6 9 (151028ZDEC02); [Redacted] 103611 [Redacted] HEADQUARTERS [Redacted] 5 1 9 5 5 Z SEP 05); HEADQUARTERS [Redacted] (212005Z JUN 05); HEADQUARTERS (202036Z JUN 05). The CIA had used music at decibels exceeding the representations to the OLC. The CIA had also used specific music to signal to a detainee that another interrogation was about to begin.²⁴⁰⁷²⁴⁰⁷ As one example, CIA records indicate that in the CIA interrogation of Ramzi bin al-Shibh, the "the Blues Brothers rendition of 'Rawhide' [was] played." CIA records state diat bin al-Shibh's reaction to hearing the song was evidence of his conditioning, as bin al-Shibh "knows when he hears the music where he is going and what is going to happen." (See [Redacted] 10602 (262020Z FEB 03); [Redacted] 10591 (252002Z FEB 03); [REDACTED] 1889 (091823Z MAR 03); [REDACTED] 1924 (151729Z M A R 0 4 ) [Redacted] 10361 [Redacted] "Loud noise" was also used to "prevent concentrating, planning, and derailing of the exploitation/interrogation process widi interrogation countermeasures (resistance)." See, for example, detainee reviews detailing the detention and interrogations of Lillie and Hambali in Volume III.Show full note Numerous CIA detainees were subjected to the extended use of white noise.²⁴⁰⁸²⁴⁰⁸ See, for example, [Redacted] 2505 (272059Z JUN 05). The amenities described by the CIA to the OLC were not available to detainees duringeariienter^ion^nhe program. The CIA further inaccurately represented that "[mjedical personnel will advise ending sleep deprivation in the event the detainee appears to be experiencing hallucinations, transient or not."²⁴⁰⁹²⁴⁰⁹ April 23, 2006, Fax from [Redacted] [Redacted] Legal Group, CIA Counterterrorism Center to DOJ Command Center for Steve Bradbury (DTS #2009-1809). In a May 18, 2006, letter, [Redacted] Legal, [Redacted] wrote to the Department of Justice that "some of these conditions provide the additional benefit of setting a detention atmosphere conducive to continued intelligence collection from the detainee." While the letter referred generally to "constant light in the cells, use of white noise, use of shackles, hooding, and shaving/barbering," it described an intelligence collection purpose only for shaving, which "allows interrogators a clear view of the terrorist-detainee's facial clues."²⁴¹⁰²⁴¹⁰ May 18. 2006, Letter to Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from [Redacted] [Redacted] C Legal, CIA, re: Request for Information on Security Measures (DTS # 2009-1809).

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¶On August 31, 2006, the OLC finalized two legal analyses on the conditions of confinement at CIA detention sites. The first was a memorandum that evaluated whether six detention conditions in the CIA's detention program were consistent with the Detainee Treatment Act.²⁴¹¹²⁴¹¹ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, August 31, 2006, Re: Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Detention Facilities (DTS #2009-1810, Tab 13). The second, provided in the form of a letter, concluded that those same six conditions did not violate the requirements of Common Article 3 of the Geneva Conventions.²⁴¹²²⁴¹² Letter for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, August 31,2006 (DTS #2009-1810, Tab 12). The OLC relied on the CIA's representations related to conditions of confinement for its analysis.²⁴¹³²⁴¹³ The OLC did not apply the Detainee Treatment Act or Common Article 3 to the use of shaving or other conditions of confinement in terms of their use as an interrogation technique. The OLC stated that while "the primary purpose of the conditions of confinement we consider here is to maintain the security of the CIA's detention facilities... [m]any of these conditions may also ease the obtaining of crucial intelligence information from the detainees." Nonetheless, the OLC concluded that "the security rationale alone is sufficient to justify each of the conditions of confinement in question." See memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, August 31,2006, Re: Application of the detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Detention Facilities (DTS #2009-1810, Tab 13).Show full note The OLC wrote that "underlying our analysis of all these methods [conditions of confinement] is our understanding that the CIA provides regular and thorough medical and psychological care to the detainees in its custody."²⁴¹⁴²⁴¹⁴ Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, August 31, 2006, Re: Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Detention Facilities (DTS #2009-1810 Tab 13). As detailed in this summary, the lack of emergency medical care for CIA detainees was a significant challenge for the CIA.²⁴¹⁵²⁴¹⁵ For additional detailed information, see Volume I and Volume III.

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¶The August 31, 2006, OLC memorandum applying the terms of the Detainee Treatment Act to the conditions of confinement at CIA detention facilities stated that "over the history of the program, the CIA has detained a total of 96 individuals." This was based on a representation made by [Redacted] T C Legal on April 23, 2006.²⁴¹⁶²⁴¹⁶ ^April 23, 2006, Fax to DOJ Command Center for Steve Bradbury, Office of Legal Counsel, from [Redacted] [Redacted] [Redacted] Legal Group, CIA Counterterrorism Center. As of the date of the OLC memorandum, the CIA had detained at least 118 individuals. The OLC memorandum also stated that "we understand that, once the CIA assesses that a detainee no longer possesses significant intelligence value, the CIA seeks to move the detainee into alternative detention arrangements." CIA records indicate that detainees had remained in CIA custody long after the CIA had determined that they no longer possessed significant intelligence. Finally, the OLC memorandum repeated a number of earlier inaccurate CIA representations on the effectiveness of the program, citing both the CIA's "Effectiveness Memo" and its own May 30, 2005, memorandum. Notably, the August 31, 2006, OLC memorandum repeated the same inaccurate representation, which first appeared in an August 2002 OLC memorandum, 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." As described, CIA records as early as 2002 did not support these representations, and two weeks prior to the issuance of the August 2006 memorandum, the CIA had published an intelligence assessment stating that Abu Zubaydah had been rejected by al-Qa'ida and explaining how the CIA had come to "miscast Abu Zubaydah as a 'senior al-Qa'ida lieutenant.'"²⁴¹⁷²⁴¹⁷ CIA Intelligence Assessment, August 16, 2006, "Countering Misconceptions About Training Camps in Afghanistan, 1990-2001." For additional details, see the Abu Zubaydah detainee review in Volume III. [Redacted]

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