Reports that Matter

Committee Study of the Central Intelligence Agency's Detention and Interrogation Program · 2014

J. The CIA Seeks Reaffirmation of the CIA's Detention and Interrogation Program in 2003

Section 13 of 55

J. The CIA Seeks Reaffirmation of the CIA's Detention and Interrogation Program in 2003

1. Administration Statements About the Humane Treatment of Detainees Raise Concerns at the CIA About Possible Lack of Policy Support for CIA Interrogation Activities

On several occasions in early 2003, CIA General Counsel Scott Muller expressed concern to the National Security Council principals, White House staff, and Department of Justice personnel that the CIA's program might be inconsistent with public statements from the Administration that the U.S. Government's treatment of detainees was "humane."685 February 12,2003, MFR from Scott Muller, Subject: "Humane" treatment of CIA detainees; March 7, 2003, Memorandum for DDCIA from Muller, Subject: Proposed Response to Human Rights Watch Letter. CIA General Counsel Muller therefore sought to verify with White House and Department of Justice personnel that a February 7, 2002, Presidential Memorandum requiring the U.S. military to treat detainees humanely did not apply to the CIA.686 January 9, 2003, Draft Memorandum for Scott Mueller [sic], General Counsel of the Centra] Intelligence Agency, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, re: Application of the President's m i 111111 [Redacted] 1 mi inn 1 February 7, 2002, Memorandum on the Geneva Convention (HI) of 1949 to the Release of an al Qaeda Detainee to the Custody of the CIA. The memorandum stated that neither al-Qa'ida nor Taliban detainees qualified as prisoners of war under Geneva, and that Common Article 3 of Geneva, requiring humane treatment of individuals in a conflict, did not apply to al-Qa'ida or Taliban detainees Following those discussions in early 2003, the White House press secretary was advised to avoid using the term "humane treatment" when discussing the detention of al-Qa'ida and Taliban personnel.687 March 18, 2003, Memorandum for the Record from [Redacted] Subject: meeting with DOJ and NSC Legal Adviser.

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In mid-2003, CIA officials also engaged in discussions with the Department of Justice, the Department of Defense, and attorneys in the White House on whether representations could be made that the U.S. Government complied with certain requirements arising out of the Convention Against Torture, namely that the treatment of detainees was consistent with constitutional standards in the Fifth, Eighth, and Fourteenth Amendments.688 See, for example, March 18, 2003, email from: [Redacted] t o : S c o t t Muller; subject: Memorandum for the Record - T e l c o i ^ i t l ^ L C ^ a t e : March 13, 2003^mailfronrScott W. Muller; to: Stanley M. Moskowitz, John H. Moseman; cc: [Redacted] John A. Rizzo, [Redacted] subject: Interrogations; date: April 1,2003, at 1:18:35 PM; [Redacted] to: Scott Muller; cc: John Rizzo, [REDACTED], [REDACTED], [REDACTED]; subject: Black letter law on Interrogations; Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa'ida Personnel; date: April 17, 2003. In late June 2003, after numerous inter-agency discussions, William Haynes, the general counsel of the Department of Defense, responded to a letter from Senator Patrick Leahy stating that it was U^SjDolicy to compl^vittUhes^jtandards.689 June 25, 2003, Letter from William J. Haynes, II, General Counsel of the Department of Defense to Patrick Leahy, United States Senate. According to a memorandum from the CIA's

In July 2003, after the White House made a number of statements again suggesting that U.S. treatment of detainees was "humane," the CIA asked the national security advisor for policy reaffirmation of the CIA's use of its enhanced interrogation techniques. During the time that request was being considered, CIA Headquarters stopped approving requests from CIA officers to use the CIA's enhanced interrogation techniques.691 See, for example, email from: [Redacted] to: [REDACTED] and [REDACTED]; subject: FYI - Draft Paragraphs for the DCI on the Legal Issues on Interrogation, as requested by the General Counsel; date: March 14, 2003; June 26, 2003, Statement by the President, United Nations International Day in Support of Victims of Torture, http://www.whitehouse.gov/news/releases/2003/06/2003Q626-3.htm; email from: John Rizzo; to: John Moseman, [Redacted] cc: Buzzy Krongard, Scott Muller, William Harlow; subject: Today's Washington Post Piece on Administration Detainee Policy; date: June 27, 2003; July 3, 2003, Memorandum for National Security Advisor from Director of Central Intelligence George J. Tenet, Subject: Reaffirmation of the Central Intelligence Agency's Interrogation Program. Because of this stand-down, CIA interrogators, with CIA Headquarters approval, instead used repeated applications of the CIA's "standard" interrogation techniques. These "standard" techniques were coercive, but not considered to be as coercive as the CIA's "enhanced" interrogation techniques. At this time, sleep deprivation beyond 72 hours was considered an "enhanced" interrogation technique, while sleep deprivation under 72 hours was defined as a "standard" CIA interrogation technique. To avoid using an "enhanced" interrogation technique, CIA officers subjected Khallad bin Attash to 70 hours of standing sleep deprivation, two hours less than the maximum. After allowing him four hours of sleep, bin Attash was subjected to an additional 23 hours of standing sleep deprivation, followed immediately by 20 hours of seated sleep deprivation.692 Bin Attash has one leg, which swelled during standing sleep deprivation, resulting in the transition to seated sleep deprivation. He was also subjected to nudity and dietary manipulation during this period. See [Redacted] 12371 (2I2121Z JUL 03); [Redacted] 12385 (222045Z JUL 03); and [Redacted] 12389 (232040Z JUL 03). en H V T x r a i n j n g a l K j Curriculum, November 2,2002, at 17.

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Unlike during most of the CIA's interrogation program, during the time that CIA Headquarters was seeking policy reaffirmation, the CIA responded to infractions in the interrogation program as reported through CIA cables and other communications. Although [Redacted] the chief of the interrogations program in RDG, does not appear to have been investigated or reprimanded for training interrogators on the abdominal slap before its use was approved,693 H V T Training and Curriculum, November 2,2002, at 17. training significant numbers of new interrogators to conduct interrogations on potentially compliant detainees 694 or conducting large numbers of water dousing on detainees without requesting or obtaining authorization;695 See, for example, [Redacted] 10168 (092130Z JAN 03); Interview Report, 2003-7123-IG, Review of Interrogations for Counterterrorism Puqwses, [Redacted] April 7, 2003; CIA Office of Inspector General, Special Review: Counterterrorism Detention and Interrogation Activities(September2001 - October 2003) (2003- T ^ S ^ G l J i ^ a ^ M M [Redacted] 10168 (092130Z JAN 0 3 [Redacted] [Redacted] 340981 [Redacted] [Redacted] 34179 (262200Z FEB 03); [Redacted] 2 9 4 [Redacted] 1 1 3 4 [Redacted] [Redacted] 5 7 (101742ZMAR 03); and [Redacted] 135025 (161321ZMAR03). the CIA removed his certification to conduct interrogations in late July 2003 for placing a broom handle behind the knees of a detainee while that detainee was in a stress position.696 April 7, 2005, Briefing for Blue Ribbon Panel: CIA Rendition, Detention, and Interrogation Programs at 22; Memorandum for C h [Redacted] [Redacted] CTC LegaHrou^hief, CTC/RDG. July 28, 2003, Subject: Decertification of former Interrogator. Document not signed by [Redacted] because he was "not available for signature." CIA Headquarters also decertified two other interrogators, [Redacted] [CIA OFFICER 1] and [Redacted] >n the same period, although there are no official records of why those decertifications occurred.697 via See Memorandum for Chief, [Redacted] [Redacted] C L e g a l f r o m Chief, CTC/RDG, July 28, 2003, Subject: Decertification of former Interrogator, signed [Redacted] [CIA OFFICER 1] on July 29, 2003; and April 7,2005, Briefing for Blue Ribbon Panel: CIA Rendition, Detention, and Interrogation Programs via at 22; Memorandum for Chief, [Redacted] [Redacted] CTC Legal from Chief, CTC/RDG, July 28, 2003, Subject: Decertification of former Interrogator.

2. The CIA Provides Inaccurate Information to Select Members of the National Security Council, Represents that "Termination of This Program Will Result in Loss of Life, Possibly Extensive "; Policymakers Reauthorize Program

( ¥ [Redacted] i O n July 29, 2003, DCI Tenet and CIA General Counsel Muller attended a meeting with Vice President Cheney, National Security Advisor Rice, Attorney General Ashcroft, and White House Counsel Gonzales, among others, seeking policy reaffirmation of its coercive interrogation program. The presentation included a list of the CIA's standard and enhanced interrogation techniques. CIA General Counsel Muller also provided a description of the waterboard interrogation technique, including the inaccurate representation that it had been used against KSM 119 times and Abu Zubaydah 42 times.698 CIA records indicate that KSM received at least 183 applications of the waterboard technique, and that Abu Zubaydah received at least 83 applications of the waterboard technique. In April 2003, CIA Inspector General John Helgerson asked General Counsel Scott Muller about the repetitious use of the waterboard. In early June 2003, White House Counsel Alberto Gonzales and the Vice President's Counsel, David Addington, who were aware of the inspector general's concerns, asked Muller whether the number of waterboard repetitions had been too high in light of the OLC guidance. This question prompted Muller to seek information on the use of the waterboard on Abu Zubaydah and KSM. (See interview of Scott Muller, by [REDACTED], [REDACTED], [REDACTED] and [REDACTEDl^Offic^fth^nspector General, August 20, 2003; and email from: Scott Muller; to: John Rizzo; cc: [Redacted] [Redacted] [REDACTED], [Redacted] [REDACTED]; subject: "Report from Gitmo trip (Not proofread, as usual)"; date: June [Redacted] 2003, 05:47 PM.) As Muller told the OIG, he could not keep up with cable traffic from CIA detainee interrogations and instead received monthly briefings. According to OIG records of the interview, Muller "said he does not know specifically how [CIA guidelines on interrogations] changed because he does not get that far down into the weeds," and "each detainee is different and those in the field have some latitude." (See interview of Scott Muller, Office of the Inspector General, August 20, 2003.) Despite this record and others detailed in the full Committee Study, the CIA's June 2013 Response asserts that the CIA's "confinement conditions and treatment of high profile detainees like Abu Zubaydah were closely scrutinized at all levels of management from the outset." The presentation warned National Security Council principals in attendance that "termination of this program will result in loss of life, possibly extensive." The CIA officers further noted that 50 percent of CIA intelligence reports on al-Qaida were derived from detainee reporting, and that "major threats were countered and attacks averted" because of the use of the CIA's enhanced interrogation techniques. The CIA provided specific examples of "attacks averted" as a result of using the CIA's enhanced interrogation techniques, including references to the U.S. Consulate in Karachi, the Heathrow Plot, the Second Wave Plot, and Iyman Faris.699 August 5, 2003 Memorandum for the Record from Scott Muller, Subject: Review of Interrogation Program on 29 July 2003; Briefing slides, CIA Interrogation Program, July 29, 2003. As described later in this summary, and in greater detail in Volume II, these claims were inaccurate. After the CIA's presentation, Vice President Cheney stated, and National Security Advisor Rice agreed, that the CIA was executing Administration policy in carrying out its interrogation program.700 August 5, 2003, Memorandum for the Record from Scott Muller, Subject: Review of the Interrogation Program on 29 July 2003. A briefing slide describing the "Pros" and "Cons" associated with the program listed the following under the heading "Con": (1) "Blowback due to public perception of 'humane treatment,'" (2) "ICRC continues to attack USG policy on detainees," and (3) "Congressional inquiries continue." See Volume II for additional details.

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The National Security Council principals at the July 2003 briefing initially concluded it was "not necessary or advisable to have a full Principals Committee meeting to review and reaffirm the Program."701 August 5, 2003, Memorandum for the Record from Scott Muller, Subject: Review of Interrogation Program,July 29, 2003. A CIA email noted that the official reason for not having a full briefing was to avoid press disclosures, but added that:

"it is clear to us from some of the runup meetings we had with [White House] Counsel that the [White House] is extremely concerned [Secretary of State]

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Powell would blow his stack if he were to be briefed on what's been going on."702 Email from: John Rizzo; to: [Redacted] subject: Rump PC on interrogations; date: July 31, 2003.

National Security Advisor Rice, however, subsequently decided that Secretary of State Colin Powell and Secretary of Defense Donald Rumsfeld should be briefed on the CIA interrogation program prior to recertification of the covert action.703 August 5,2003, Memorandum for the Record from Scott Muller, Subject: Review of Interrogation Program, July 29, 2003. As described, both were then formally briefed on the CIA program for the first time in a 25 minute briefing on September 16, 2003.704 September 26,2003, CIA Memorandum for the Record from Muller, Subject: CIA Interrogation Program.

On September 4, 2003, CIA records indicate that CIA officials may have provided Chairman Roberts, Vice Chairman Rockefeller, and their staff directors a briefing regarding the Administration's reaffirmation of the program.705 September 4,2003, CIA Memorandum for the Record, Subject: Member Briefing Neither the CIA nor the Committee has a contemporaneous report on the content of the briefing or any confirmation that the briefing occurred.