Reports that Matter

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

M. Legal and Operational Challenges in 2005

Section 16 of 55

M. Legal and Operational Challenges in 2005

1. Department of Justice Renews Approval for the Use of the CIA's Enhanced Interrogation Techniques in May 2005

On May 10, 2005, the new acting assistant attorney general for OLC, Steven Bradbury, issued two legal memoranda. The first analyzed whether the individual use of the CIA's 13 enhanced interrogation techniques—including waterboarding, as well as a number of interrogation techniques that had been used in 2003 and 2004, but had not been analyzed in die original August 1, 2002, OLC memorandum—were consistent with the criminal prohibition on torture.874 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. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee. The second memorandum considered the combined use of the CIA's enhanced interrogation techniques.875 See Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven Ci. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, May 10, 2005, Re: Application of 18 U.S.C. §§ 2340-2340A to the Combined Use of Certain Techniques That May Be Used in the Interrogation of High Value al Qaeda Detainees. Both legal memoranda concluded that the use of the CIA's enhanced interrogation techniques did not violate the torture statute.

On May 26, 2005, the CIA inspector general, who had been provided with the two OLC memoranda, wrote a memo to the CIA director recommending that the CIA seek additional legal guidance on whether the CIA's enhanced interrogation techniques and conditions of confinement met the standard under Article 16 of the Convention Against Torture.876 May 26, 2005, Memorandum for Director, Central Intelligence Agency, from John Helgerson, Inspector General, re: Recommendation for Additional Approach to Department of Justice Concerning Legal Guidance on Interrogation Techniques. The inspector general noted that "a strong case can be made that the Agency's authorized interrogation techniques are the kinds of actions that Article 16 undertakes to prevent," adding that the use of the waterboard may be "cruel" and "extended detention with no clothing would be considered 'degrading' in most cultures, particularly Muslim." The inspector general further urged that the analysis of conditions was equally important, noting that the inspector general's staff had "found a number of instances of detainee treatment which arguably violate the prohibition on cruel, inhuman, and/or degrading treatment."877 May 26,2005, Memorandum for Director, Central Intelligence Agency, from John Helgerson, Inspector General, re: Recommendation for Additional Approach to Department of Justice Concerning Legal Guidance on Interrogation Techniques. nil I I III I [Redacted] I llll Illll I

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On May 30, 2005, a third OLC memorandum examining U.S. obligations under the Convention Against Torture was completed.878 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 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 conclusions in this opinion were based largely on the CIA's representations about the effectiveness of the CIA interrogation program in obtaining unique and "otherwise unavailable actionable intelligence." As described later in this summary, and in more detail in Volume II, the CIA's effectiveness representations were almost entirely inaccurate.

2. Abu Faraj Al-Libi Subjected to the CIA's Enhanced Interrogation Techniques Prior to Department of Justice Memorandum on U.S. Obligations Under the Convention Against Torture; CIA Subjects Abu Faraj Al-Libi to the CIA's Enhanced Interrogation Techniques When He Complains of Hearing Problems

On May 2, 2005, when Abu Faraj al-Libi, al-Qa'ida's chief of operations, was captured in Pakistan, the OLC had not yet issued the three aforementioned May 2005 legal memoranda.879 For more information on Abu Faraj al-Libi's detention and interrogation, see Volume III. CIA officers described Abu Faraj al-Libi's capture as the "most important al-Qa'ida capture since Khalid Shaykh Muhammad."880 H E A D Q U A R T E R [Redacted] (251840Z MAY 05) Shortly after al-Libi's capture, the CIA began discussing the possibility that Abu Faraj al-Libi might be rendered to U.S. custody.881 See, for example, [Redacted] 0 8 5 1 [Redacted] (describing meetings on May 6 and 7, 2005).

On May [Redacted] 2005, four days before the rendition of Abu Faraj al- Libi to CIA custody, Director of CTC Robert Grenier asked CIA Director Porter Goss to send a memorandum to the national security advisor and the director of national intelligence "informing them of the CIA's plans to take custody of Abu Faraj al-Libi and to employ interrogation techniques if warranted and medically safe."882 May [Redacted] , 2005, Memorandum for Director, Central Intelligence Agency, via Acting Deputy Director, Central Intelligence Agency, Executive Director, Deputy Director for Operations from Robert Grenier, Director, DCI Counterterrorist Center, re: Interrogation Plan for Abu Faraj al-Libi. On May 24, 2005, the White House informed the CIA that a National Security Council Principals Committee meeting would be necessary to discuss the use of the CIA's enhanced interrogation techniques on Abu Faraj al-Libi, but the travel schedule of one of the principals was delaying such a meeting.883 Email [Redacted] to: Robert Grenier, John Mudd, [REDACTED], [REDACTED], [Redacted] [Redacted] [Redacted] R E D ACTED], [Redacted] [Redacted] cc: | [REDACTED], [REDACTED], [REDACTED]; subject: Possible significant delay in EITs for AFAL; date: May 24, 2005. mi 11 iii i [Redacted] o ^ f i N CIA Director Goss instructed CIA officers to proceed as planned, indicating that he would call the principals individually and inform them that, if Abu Faraj al-Libi was found not to be cooperating and there were no contraindications to such an interrogation, he would approve the use of all of the CIA's enhanced interrogation techniques other than the waterboard, without waiting for a meeting of the principals.884 Email [Redacted] to: Robert Grenier, John Mudd, [REDACTED], [REDACTED], [Redacted] [Redacted] [Redacted] cc: [Redacted] [Redacted] ! ! '^^^^•JREDACTED], [Redacted] [REDACTED], [REDACTED], [REDACTED]; subject: Possible significant delay in EITs for AFAL; date: May 24, 2005. Abu Faraj al-Libi was rendered to CIA custody at DETENTION SITE ORANGE on May [Redacted] 2005,885 [Redacted] [Redacted] and transferred to DETENTION SITE BLACK on May [Redacted]

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886 2005.

0 ° May [Redacted] 2005, CIA Director Goss formally notified National Security Advisor Stephen Hadley and Director of National Intelligence (DNI) John Negroponte that Abu Faraj al-Libi would be rendered to the unilateral custody of the CIA.887 Memorandum for Assistant to the President for National Security Affairs, Director of National Intelligence, from Porter Goss, Director, Central Intelligence Agency, May [Redacted] 2005, re: Interrogation Plan for Abu Faraj al-Libi. Director Goss's memorandum stated:

"[s]hould Abu Faraj resist cooperating in CIA debriefings, and pending a finding of no medical or psychological contraindictations [sic], to interrogation, I will authorize CIA trained and certified interrogators to employ one or more of the thirteen specific interrogation techniques for which CIA recently received two signed legal opinions from the Department of Justice (DOJ), Office of Legal Counsel (OLC) that these techniques, both individually and used collectively, are lawful."888 Memorandum for Assistant to the President for National Security Affairs, Director of National Intelligence, from Porter Goss, Director, Central Intelligence Agency, May [Redacted] 2005, re: Interrogation Plan for Abu Faraj al-Libi.

The memorandum from Director Goss described Abu Faraj al-Libi as holding the third most important position in al-Qa'ida, and "playfing] a leading role in directing al-Qa'ida's global operations, including attack planning against the US homeland." Abu Faraj al-Libi was also described as possibly overseeing al-Qa'ida's "highly compartmented anthrax efforts."889 Memorandum for Assistant to the President for National Security Affairs, Director of National Intelligence, from Porter Goss, Director, Central Intelligence Agency, May [Redacted] 2005, re: Interrogation Plan for Abu Faraj al-Libi.

On May [Redacted] 2005, one day after al-Libi's arrival at DETENTION SITE BLACK, CIA interrogators received CIA Headquarters approval for the use of the CIA's enhanced interrogation techniques on Abu Faraj al-Libi.890 [Redacted] HEADQUARTERS [Redacted] CIA interrogators began using the CIA's enhanced interrogation techniques on Abu Faraj al-Libi on May 28, 2005, two days before the OLC issued its memorandum analyzing whether the techniques violated U.S. obligations under the Convention Against Torture.891 [Redacted] 2336 (282003Z MAY 05)

The CIA interrogated Abu Faraj al-Libi for more than a month using the CIA's enhanced interrogation techniques. On a number of occasions, CIA interrogators applied the CIA's enhanced interrogation techniques to Abu Faraj al-Libi when he complained of a loss of hearing, repeatedly telling him to stop pretending he could not hear well.892 [Redacted] 12499 (262123Z TUN 05) Although the interrogators indicated that they believed al-Libi's complaint was an interrogation resistance technique, Abu Faraj al-Libi was fitted for a hearing aid after his transfer to U.S. military custody at Guantanamo Bay in 2006.893 893 [Redacted] [Redacted] [Redacted] [Redacted] Despite the repeated and extensive use of the CIA's enhanced interrogation techniques on Abu Faraj al-Libi, CIA Headquarters continued to insist throughout the summer and fall of 2005 that Abu Faraj al-Libi was withholding information and pressed for the renewed use of the techniques. The use of the CIA's enhanced interrogation techniques against Abu Faraj al-Libi was eventually discontinued because CIA officers stated that they had no intelligence to demonstrate that Abu Faraj al-Libi continued to withhold information, and because CIA medical officers expressed concern that additional use of the CIA's enhanced interrogation techniques "may come with unacceptable medical or psychological risks."894 Email from: [Redacted] to: [Redacted] c : [REDACTED], [Redacted] [REDACTED],| [Redacted] [REDACTED], [ R E D A C T E [Redacted] [REDACTED], [Redacted] subject: [Redacted] Response to DDO Tasking of 7 July on Abu Faraj Interrogation; date: July 8,2005, at 06:16 PM. After the discontinuation of the CIA's enhanced interrogation techniques, the CIA asked Abu Faraj al-Libi about UBL facilitator Abu Ahmad al- Kuwaiti for the first time.895 DIRECTOR [Redacted] (121847ZJUL05); HEADQUARTERS [Redacted] • [Redacted] N 04); [Redacted] 20361 (291232Z JAN 04); DIRECTOR [Redacted] (040522Z MAY 04) Abu Faraj al-Libi denied knowledge of al-Kuwaiti.896 [Redacted] 29454 (131701Z JUL 05)

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3. CIA Acquires Two Detainees from the U.S. Military

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I" ' a t e 2005, during the period the U.S. Senate was debating the Detainee Treatment Act bailing "cruel, inhuman, or degrading treatment or punishment,"900 [Redacted] Email from: [REDACTED]; to: [Redacted] [REDACTED], [REDACTED]; cc: [Redacted] [Redacted] [REDACTED], [REDACTED]; Subject: McCain Amendment on Detainee Treatment; date: October 6,2005, at 12:37 PM. the CIA subjected Abu Ja'far al-Iraqi to its enhanced interrogation techniques.901 According to CIA records, Abu Ja'far al-Iraqi was subjected to nudity, dietary manipulation, insult slaps, abdominal slaps, attention grasps, facial holds, walling, stress positions, and water dousing with 44 degree Fahrenheit water for 18 minutes. He was shackled in the standing position for 54 hours as part of sleep deprivation, and experienced swelling in his lower legs requiring blood thinner and spiral ace bandages. He was moved to a sitting position, and his sleep deprivation was extended to 78 hours. After the swelling subsided, he was provided with more blood thinner and was returned to the standing position. The sleep deprivation was extended to 102 hours. After four hours of sleep, Abu Ja'far al-Iraqi was subjected to an additional 52 hours of sleep deprivation, after which CIA Headquarters informed interrogators that eight hours was the minimum rest period between sleep deprivation sessions exceeding 48 hours. In addition to the swelling, Abu Ja'far al-Iraqi also experienced an edema on his head due to walling, abrasions on his neck, and blisters on his ankles from shackles. S e e [Redacted] 1810 A draft Presidential Daily Brief (PDB) stated that Abu ja'far al-Iraqi provided "almost no information that could be used to locate former colleagues or disrupt attack plots"—the type of information sought by the CIA, and the CIA's justification for the use of its enhanced interrogation techniques.902 DEC05[Redacted]813[Redacted]C05);H[Redacted]19^[Redacted]5)|J|[Redacted]47 [Redacted] DEC 05); [Redacted] 1848 DEC 05); H E A D Q U A R T E R [Redacted] [Redacted] C O ? ) . See additional information on Abu Ja'far al-lraqi in Volume PI. Draft titled: [Redacted] Date: December 13, 2005, ALT ID#: -2132586. Director Goss notified the national security advisor that he had authorized the use of the CIA's enhanced interrogation techniques on Abu Ja'far al-Iraqi because "CIA believes that Abu Ja'far possesses considerable operational information about Abu Mu'sab al-Zarqawi." See December 1, 2005, Memorandum for the National Security Advisor, Director of National Intelligence, from Porter Goss, Central Intelligence Agency, subject, "CountertetTorist Interrogation Techniques." Later, the statement that Abu Ja'far al-Iraqi provided "almost no information that could be used to locate former colleagues or disrupt attack plots" was deleted from the draft PDB.903 PDB Draft titled: [Redacted] Date: December 2005, ALT ID: 20051217 PDB on Abu Jafar al-Iraqi. Urging the change to the draft PDB, one of the interrogators involved in Abu Ja'far al-lraqi's interrogation wrote, "If we allow the Director to give this PDB, as it is written, to the President, I would imagine the President would say, 'You asked me to risk my presidency on your interrogations, and now you give me this that implies the interrogations are not working. Why do we bother?' We think the tone of the PDB should be tweaked. Some of the conclusions, based on our experts' observations, should be a m e n d e d T h e g k i s s i s half full, not half empty, and is getting more full every day." See email from: [REDACTED] [Redacted] to: [Redacted] [REDACTED], [REDACTED], [REDACTED]; cc: [REDACTED], [REDACTED], [REDACTED]; subiectjPDBon [AbuJa'far al-lraqi]; date: December 15, 2005, at 12:25 AM. Abu Ja'far al-Iraqi remained in CIA custody until early September 2006, when he was transferred to U.S. military custody in Iraq.904 [Redacted] 2031 [Redacted] In June 2007, inaccurate information about the effectiveness of the CIA's enhanced interrogation techniques on Abu Ja'far al-Iraqi was provided to the Committee. See CIA Response to Senate Select Committee on Intelligence Questions for the Record, June 18, 2007 (DTS #2007-2564); \ [Redacted] 32732 [Redacted] O C T O s [Redacted] 3 2 7 0 [Redacted] O C T 0 5 [Redacted] 32726 [Redacted] OCT 05); [Redacted] [Redacted] [Redacted] [Redacted] 11 ii 11111 [Redacted] i M I ii

4. The CIA Seeks "End Game" for Detainees in Early 2005 Due to Limited Support From Liaison Partners

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early 2005, the CIA again sought an "endgame" policy for its detainees, citing its unstable relations with host governments and its difficulty in identifying additional countries to host CIA detention facilities.905 The CIA's June 2013 Response stales that an "important factor" contributing to the slower pace of CIA detention operations was al-Qa'ida's relocation to the FATA, which "made it significantly more challenging [for the Pakistani government] to mount capture operations resulting in renditions and detentions by the RDI program." A review of CIA records by the Committee found that legal, policy, and other operational concerns dominated internal deliberations aboutthe program. In 2005, CIA officers asked [Redacted] officials to render two detainees to CIA one [Redacted] a n d one [Redacted] [Redacted] neither detainee was transferred to CIA custody. CIA officers noted that obtaining custody of detainees held by a foreign government during this period was becoming increasingly difficult, highlighting that [Redacted] [Redacted] In March 2006, Director Goss testified to the Committee that lack of space was the limiting factor in taking custody of additional detainees. See H E A D Q U A R T E [Redacted] [Redacted] ADQUARTERS [Redacted] [Redacted] a i l from: [REDACTED], [Redacted] [Redacted] cc: [REDACTED], [ R E D A C T E [Redacted] , [REDACTEDUREDACTEDL [REDACTED], [REDACTED], [REDACTED]; subject: for coord, pis: D/CIA t a l k i n g p o i n [Redacted] re rendition of [Redacted] 67[Redacted]ADQUARTERS [Redacted] [Redacted] and transcript of Senate Select Committee on Intelligence briefing, March 15, 2006 (DTS #2006-1308). Talking points prepared for the CIA director for a meeting with the national security advisor made the following appeal:

"CIA urgently needs [the President of the United States] and Principals Committee direction to establish a long-term disposition policy for the 12 High-Value detainees (HVD)s we hold in overseas detention sites. Our liaison partners who host these sites are deeply concerned by [REDACTED]905 press leaks, and they are increasingly skeptical of the [U.S. government's] commitment to keep secret their cooperation.... A combination of press leaks, international scrutiny of alleged [U.S. government] detainee abuse, and the perception that [U.S. government] policy on detainees lacks direction is eroding our partners' trust in U.S. resolve to protect their identities and supporting roles. If a [U.S. government] plan for long-term [detainee] disposition does not emerge soon, the handful of liaison partners who cooperate may ask us to close down our facilities on their territory. Few countries are willing to accept the huge risks associated with hosting a CIA detention site, so shrinkage of the already small pool of willing candidates could force us to curtail our highly successful interrogation and detention program. Fear of public exposure may also prompt previously cooperative liaison partners not to accept custody of detainees we have captured and interrogated. Establishment of a clear, publicly announced [detainee] 'endgame' - one sanctioned by [the President of the United States] and supported by Congress - will reduce our partners' concerns and rekindle their enthusiasm for helping the US in the War on Terrorism."907 See CIA document dated, January 12,2005, entitled, "DCI Talking Points for Weekly Meeting with National Security Advisor."

Tn March 2005, talking points prepared for the CIA director for a discussion with the National Security Council Principals Committee stated that it was:

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"only a matter of time before our remaining handful of current blacksite hosts concludes that [U.S. government] policy on [detainees] lacks direction and... [the blacksite hosts] ask us to depart from their soil.... Continuation of status quo will exacerbate tensions in these very valuable relationships and cause them to withdraw their critical support and cooperation with the [U.S. government]."908 See CIA Talking Points for Principals Committee Meeting on Long-Term Disposition of High-Value Detainees, 8 March 2005.

During this period, the U.S. solicitor general, however, expressed concern that if CIA detainees were transferred back to Guantanamo Bay, Cuba, they might be entitled to file a habeas petition and have access to an attorney.909 to: See email from: [Redacted] J°l i n Rizzo; subject: Meeting this am with WH counsel on endgame planning; date: January 14,2005. ^^^^^^^^ Meanwhile, the National Security Council continued to discuss a public roll-out, and as described later in this summary, the CIA engaged the media directly in order to defend and promote the program.910 Email f r o m [Redacted] t o J [Redacted] R E D A C T E D J , [Redacted] [REDACTED], John A. Rizzo, [Redacted] [Redacted] [Redacted] subject: Re: Brokaw Take date: April 14, 2005, at 9:22:32 AM. In 2006, Vice President Cheney expressed reservations about any public release of information regarding the CIA program. See CIA Memorandum for the Record from [REDACTED], C / C T [Redacted] subject, "9 March 2006 Principals Committee Meeting on Detainees."

The question of what to do with the remaining detainees in CIA custody remained unresolved throughout 2005, during which time the CIA pursued agreements with additional countries to establish clandestine CIA detention facilities.911 Negotiations with Countries [Redacted] and [Redacted] to host CIA detention facilities are described in this summary, and in greater detail in Volume I. The Detainee Treatment Act was passed by Congress on December 23, 2005, as part of the National Defense Authorization Act for Fiscal Year 2006. That day, the CIA suspended its interrogation program again.912 HEADQUARTERS [Redacted] (232040Z DEC 05) As described later in this summary, in February 2006, the CIA informed the National Security Council principals that the CIA would not seek continued use of all of the CIA's enhanced interrogation techniques.913 DDCIA Talking Points for 10 February 2006 Un-DC re Future of the CIA Counterterrorist Rendition, Detention,

5. Press Stories and the CIA's Inability to Provide Emergency Medical Care to Detainees Result in the Closing of CIA Detention Facilities in Countries [Redacted] and [Redacted]

In October 2005, the CIA learned that Washington Post reporter Dana Priest had information about the CIA's Detention and Interrogation Program, [Redacted] [Redacted] ^he then a negotiations with the Washington Post in which it sought to prevent the newspaper from publishing information on the CIA's Detention and Interrogation Program.914 [Redacted] [Redacted] [Redacted] [Redacted]; HEADQUARTERS [Redacted] [Redacted] [Redacted] Fearful that

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The publication of the Washington Post article resulted in a demarche to A ^ n i t e ^ t a t e s f r o m [Redacted] which also suggested that [Redacted] contribution [Redacted] be in jeopardy.920 33053 [Redacted] [Redacted] The United States also

[Redacted]21 received a d e m a r c h ^ o [Redacted] According to a CIA cable, U.S. representatives to [Redacted] "if another shoe were to drop," there would be considerable ramifications for U.S. relations with [Redacted] on a number of issues that depended on U.S. credibility in the area of human rights. The representatives also "questioned whether the gravity of this potential problem is fully appreciated in Washington."922

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The CIA catalogued how the Washington Post story created tensions in its bilateral counterterrorism relations with [Redacted] allies and determined that:

"[t]he article is prompting our partners to reassess the benefits and costs of cooperating with the [U.S. government] and CIA. These services have conducted aggressive, high-impact operations with CIA against... targets, including [Redacted] We no longer expect the services to be as aggressive or cooperative.»923 [Redacted] [Redacted]

informed CIA officers that press stories on the CIA's Detention and Interrogation Program led the [Redacted] government to prohibit [Redacted] from providing "information that could lead to the rendition or detention of al-Qa'ida or other terrorists to U.S. Government custody for interrogation, including CIA and the Department of Defense."924 See email f r o m [Redacted] R E D A C T E D ] ; cc: [REDACTED], [REDACTED], [REDACTED], [REDACTED], [ R E D A C T E [Redacted] [REDACTED], [REDACTED], [REDACTED]; subject: sensitive do not forward - draft Intel; date: April 7, 2006, at 04:12:59 AM. See also September 2, 2006, Fax from [Redacted] DD/CTC, to Steve Bradbury, John Bellinger i n , Steve Cambone, forwarding September 1, 2006 Memorandum, "Anticipated Foreign Reactions to the Public Announcement of the US Secret Terrorist Detention Center." [Redacted] begun raising legal and policy concerns related to [any potential] support and assistance to the CIA in rendition, detention, and interrogation operations in M a r c l ^ 0 0 ^ J [Redacted] i c e t ^ n d i c a t e c U h a U h e y believed the International Covenant on Civil and Political Rights and the [Redacted] prohibited [Redacted] from aiding or assisting in these CIA operations. For additional backgroundor[Redacted] legal concerns about Renditions and Detention, see email from: [REDACTCDLCOS [Redacted] o . John A. Rizzo^c^REDACTED], [REDACTED], [REDACTED]; subject: more from [Redacted] I [Redacted] [Redacted] v i s i t ; date: [Redacted] a t 11:09 AM. ^ ^ ^ ^ ^

Media leaks also created tensions with countries that had hosted or continued to host CIA detention facilities. For example, leaks prompted Country [Redacted] officials to convey their intent to communicate directly with the Departments of Justice and State. They then formally demarched the U.S. government.923 As late as [Redacted] 2009, the [Redacted] Country [Redacted] raised with CIA Director Panetta the "problem of the secret detention facility" that had "tested and strained" the bilateral partnership. The [Redacted] of Country [Redacted] also stated that assurances were needed that future cooperation with the CIA would be safeguarded.926 [REDACTED] 2328 [Redacted] P

After publication of the Washington Post article, [Redacted] Country [Redacted] demanded the closure of DETENTION SITE BLACK within [Redacted] hours927 [REDACTED] 7885 ([REDACTED] [REDACTED]) The CIA transferred the [Redacted] remaining CIA detainees out of the facility shortly thereafter.928 [REDACTED] 4895 ([REDACTED] [REDACTED]) l l l l 'ill III I [Redacted] "I llll Mill I

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[Redacted] [Redacted] [Redacted] [Redacted] [Redacted]

[Redacted] Country [Redacted] [Redacted] officers refused to admit CIA detainee Mustafa Ahmad al-Hawsawi to a local hospital despite earlier discussions with country representatives abouUiow a detainee's medical emergency would be handled.930 [REDACTED] 5014[Redacted] While the CIA understood the [Redacted] officers' reluctance to place a CIA detainee in a local hospital given media reports, CIA Headquarters also questioned the "willingness of [Redacted] t 0 participate as originally agreed/planned with regard to provision of emergency medical care."931 HEADQUARTERS [Redacted] _ _ After failing to gain assistance from the Department of Defense932 See CIA Request Letter to DOD for Medical Assistance, dated [Redacted] [Redacted] 2006, from DCIA Porter Goss. This letter was written four days after the CIA Headquarters cable noting the emerging difficulties in relying on host- country medical care. See also CIA document entitled, Summary and Reflections of Chief of Medical Services on OMS Participation in the RDI Program. While the document is undated, it includes information updated through 2007. the CIA was forced to seek assistance from three third-party countries in providing medical care to al-Hawsawi and four other CIA detainees with acute ailments. Ultimately, t h e [Redacted] i o [Redacted] n for th^reatment of [Redacted] n ( [Redacted] a i d t h e [Redacted] r o x i m a t e h $ [Redacted] foiMh^reatmentof [Redacted] 3 4 and made arrangements for [Redacted]

[Redacted] [Redacted] t o b e t r e a t e d i [Redacted] 9 3 5 T h e medical issues resulted in the closing of DETENTION SITE VIOLET in C o u n t r y [Redacted] in [Redacted] 2006.936 See Volume I for additional details. The CIA then transferred its remaining detainees to DETENTION SITE BROWN. At that point, all CIA detainees were located in Country [Redacted] 9 3 7

Meanwhile, the pressures on the CIA's Detention and Interrogation Program brought about by the Washington Post story prompted the CIA to consider new options among what it called the "[d]windling pool [Redacted] partners willing to host CIA Blacksites."938 See CIA Counterterrorist Rendition, Detainee, and Interrogation Program; dated [Redacted] February 2006, "Un-DC" Meeting slides. The CIA thus renewed earlier efforts to establish a detention facility in Country [Redacted] The CIA had earlier provided $ [Redacted] million to Country [Redacted] s [Redacted] in preparation for a potential CIA detentior^ite^rompting the chief of Station to comment, "Do you realize you can buy [Country [Redacted] o [Redacted] 9 3 9 On December [Redacted] 2005, the chief of Station in Country [Redacted] met with the

[Redacted] who was not concerned about the CIA's detention of terrorists in his country, but wanted assurances that the CIA interrogation program did not include the use of torture.940 [REDACTED] 1938 In providing his approval, the [Redacted] agreed to a request from the chief

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941 of Station not to inform the U.S. ambassador in Country [Redacted] The CIA also reached an agreement with another country, Country [Redacted] to establish a CIA detention facility in that country and arranged with the leadership of Country [Redacted] not to inform the U.S. ambassador there942 [REDACTED] 3145 The CIA ultimately did not detain individuals in either country.

In late October 2005, days before the publication of the Washington Post article, the CIA asked a separate country, Country [Redacted] to temporarily house [Redacted] CIA detainees.943 HEADQUARTERS [Redacted] [Redacted] The chief of Station briefed the U.S. ambassador in Country [Redacted] who requested that the National Security Council and the White House be bricfech)iUh^>lan.944 [REDACTED] 6481 There are no CIA records to indicate the briefing occurred. Country [Redacted] s [Redacted] then provided approval, while seeking assurances that the CIA would develop a c o n t i n g e n c ^ l a r ^ r ^ a s ^ h e detention site was exposed in the press.945 [REDACTED] 6481 [Redacted] While the CIA Station and the [Redacted]

[Redacted] considered [Redacted] i n Country [Redacted] CIA Headquartersdirectedthat a long-term CIA detention facility be established in t h ^ o u n t r ^ C o u n [Redacted] t [Redacted] approved a plan to build a CIA detention facility [Redacted] but noted his ongoing concerns about the lack of a CIA "exit strategy."946 [Redacted] [REDACTED] 6877

The lack of emergency medical care for detainees, the issue that had forced the closing of DETENTION SITE VIOLET in Country [Redacted] was raised repeatedly in the context of the construction of the CIA detention facility in Country [Redacted] On March [Redacted] 2006, CIA Headquarters requested that the CIA Station in Country [Redacted] ask Country [Redacted] to arrange discreet access to the nearest hospital and medical staff. The cable stated that the CIA "look[s] forward to a favorable response, prior to commencing with the construction of our detention facility."947 HEADQUARTERS [Redacted] [Redacted] Construction nonetheless began on the facility without the issue of emergency medical care having been resolved. In [Redacted] 2006, after the deputy chief of the CIA Station in Country [Redacted] the deputy chief of RDG, and an OMS officer met with [Redacted] officers, the Station reported that the establishment of emergency medical care proximal to the site was "not tenable."948 [Redacted] [REDACTED] 7670 In July 2006, an OMS representative informed the chief of [Redacted] a t CIA Headquarters that the facility in Country [Redacted] "should not be activated without a clear, committed plan for medical provider coverage."949 [Redacted] See email from: [REDACTED]; to: [Redacted] [Redacted]^REDACTED]; cc: • • [Redacted] subject: [Redacted] C T C [Redacted] meetin ;re. [Redacted] date: [Redacted] at 4:57:29PM. The June discussion is also referenced in [Redacted]; Memorandum for the Record; to: C / C T C [Redacted] from: C / C T C [Redacted] R D G ; subject: Site Visit to [Redacted]and Recommendations. As described, in June 2006, the CIA inspector general issued an audit that concluded that while CIA detention facilities lacked sufficient debriefers, they "were constructed, equipped, and staffed to securely and safely contain detainees and prompt intelligence exploitation of detainees." The audit further determined that the facilities "are not equipped to provide medical treatment to detainees who have or develop serious physical or mental disorders, and operable plans are not in place

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G I S [Redacted] [Redacted] P ) By the time a CIA team visited the Country [Redacted] detention site in late 2006, the CIA had already invested [Redacted] million in the new facility. Describing the absence of adequate emergency medical care options as "unacceptable," the chief of RDG recommended in a draft memo that construction efforts be abandoned for this reason.950 [Redacted] 2006, Memorandum for the Record, to: C / C T [Redacted] from: C / C T C [Redacted] R D G , re: Site Visit to [Redacted] 1 Recommendations. The following day, an edited version of the same memo described the issue as a "challenge," but did not recommend that the CIA cease construction of the facility.951 Memorandum for the Record, to: C / C T [Redacted] from: C / C T C [Redacted] R D G , re: Site Visit to [Redacted] a n d Recommendations (2). The resulting CIA detention facility, which would eventually cost [Redacted] million, was never used bythe CIA. Press reports about the CIA's Detention and Interrogation Program that appeared in [Redacted] and [Redacted] eventually forced the CIA to pass possession of the unused facility to the Country [Redacted] government.952 Congressional Notification: Central IntelligenceAgency Response to Host Country Government Order to Vacate an Inactiv^Blacksit^Detention Facility, [Redacted] (DTS #2009-3711); SSCI Memorandum for the Record, [Redacted] CIA Document, RDI Program Background Brief for Leon Panetta, 2009.

In early January 2006, officials at the Department of Defense informed CIA officers that Secretary of Defense Rumsfeld had made a formal decision not to accept any CIA detainees at the U.S. military base at Guantanamo Bay, Cuba.953 DCIA Talking Points for 6 January 2006 Breakfast with Secretary of Defense, re: SecDef Refusal to Take CIA Detainees on GTMO. At the time, the CIA was holding 28 detainees in its two remaining facilities, DETENTION SITE VIOLET, in Country [Redacted] and DETENTION SITE ORANGE, in Country [Redacted] 9 5 4 In preparation for a meeting with Secretary of Defense Rumsfeld on January 6, 2006, CIA Director Goss was provided a document indicating that the Department of Defense's position not to allow the transfer of CIA detainees to U.S. military custody at Guantanamo Bay "would cripple legitimate end game planning" for the CIA.955 DCIA Talking Points for 6 January 2006 Breakfast with Secretary of Defense, re: SecDef Refusal to Take CIA Detainees on GTMO. 111111 The talking points for that meeting suggested that Director Goss tell Secretary Rumsfeld that the:

"only viable 'endgame' for continued US Government custody of these most dangerous terrorists is a transfer to GTMO... [a]bsent the availability of GTMO and eventual DoD custody, CIA will necessarily have to begin transferring those detainees no longer producing intelligence to third countries,

to provide inpatient care for detainees," and concluded that CIA detention facilities were not equipped to provide emergency medical care to detainees. The audit team did not visit the facility in Country [Redacted] but stated, with regard to another country, Country [Redacted] that "CIA funds have been wasted in constructing and equipping a medical facility that was later determined not to be a viable option for providing inpatient care for detainees." See Report of Audit, CIA-controlled Detention Facilities Operated Under the 17 September 2001 Memorandum of Notification, Report No. 2005-0017-AS, June 14, 2006, at DTS # 2006-2793. The CIA's [Redacted] supervised the CIA's Renditions and Detention Group.

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which may release them, or [the CIA itself may need to] outright release them."956 DC1A Talking Points for 6 January 2006 Breakfast with Secretary of Defense, re: SecDef Refusal to Take CIA Detainees on GTMO.

After Secretary Rumsfeld declined to reconsider his decision not to allow the transfer of CIA detainees to U.S. military custody at Guantanamo Bay, CIA officers proposed elevating the issue to the president. CIA officers prepared talking points for Director Goss to meet with the president on the "Way Forward" on the program on January 12, 2006.957 DCI A Talking Points for 12 January 2006 Meeting with the President, re: Way Forward on Counterterrorist Rendition, Detention and Interrogation Program. The talking points recommended that the CIA director "stress that absent a decision on the long-term issue (so called 'endgame') we are stymied and die program could collapse of its own weight."958 DCIA Talking Points for 12 January 2006 Meeting with the President, re: Way Forward on Counterterrorist Rendition, Detention and Interrogation Program. There are no records to indicate whether Director Goss made this presentation to the president.

In 2005 and 2006, the CIA transferred detainees from its custody to at least nine countries, including [Redacted] [Redacted] w e l l as to the U.S. military in Iraq. Many of these detainees were subsequently released.959 See Volume 1 for additional details. By May 2006, the CIA had 11 detainees whom it had identified as candidates for prosecution by a U.S. military commission. The remaining detainees were described as having "repatriation options open."960 May 18,2006, Deputies Committee (Un-DC) Meeting, Preliminary Detainee End Game Options. For additional information, see Volume I.

6. The CIA Considers Changes to the CIA Detention and Interrogation Program Following the Detainee Treatment Act, Hamdan v. Rumsfeld

Following the passage of the Detainee Treatment Act in December 2005, the CIA conducted numerous discussions with the National Security Council principals about modifications to the program that would be acceptable from a policy and legal standpoint. In February 2006, talking points prepared for CIA Director Goss noted that National Security Advisor Stephen Hadley:

"asked to be informed of the criteria CIA will use before accepting a detainee into its CIA Counterterrorist Rendition, Detention, and Interrogation Program, stating that he believed CIA had in the past accepted detainees it should not have."961 DCIA Talking Points for 9 February 2006 Un-DC, re: Future of the CIA Counterterrorist Rendition, Detention, and Interrogation Program - Detainees. mi 11 in i [Redacted] i nii imi i

The CIA director proposed future criteria that would require not only that CIA detainees meet the standard in the MON, but that they possess information about threats to the citizens of the United States or other nations, and that detention in a CIA facility wa^ppropriate for intelligence exploitation.962 DCIA Talking Points for 9 February 2006 Un-DC, re: Future of the CIA Counterterrorist Rendition. Detention, and Interrogation Program - Detainees. A few months later, [Redacted] Legal,

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[Redacted] wrote to Acting Assistant Attorney General Steven Bradbury suggesting a modified standard for applying the CIA's enhanced interrogation techniques. The suggested new standard was that "the specific detainee is believed to possess critical intelligence of high value to the United States." While the proposed modification included the requirement that a detainee have "critical intelligence of high value," it represented an expansion of CIA authorities, insofar as it covered the detention and interrogation of an individual with information that "would assist in locating the most senior leadership of al-Qa'ida of [sic] an associated terrorist organization," even if that detainee was not assessed to have knowledge of, or be directly involved in, imminent terrorist threats.963 Letter from [Redacted] T C Legal [Redacted] to Acting Assistant Attorney General Bradbury, May 23, 2006. (DTS #2009-1809); 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 #2009J8K) i Tub9), citing Fax for Daniel Levin, Acting Assistant Attorney General^ffice of Legal Counsel, from [Redacted] Assistant General Counsel, CIA (Jan. 4, 2005) ('January 4 [ [Redacted] Fax'); 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).

Discussions with the National Security Council principals also resulted in a March 2006 CIA proposal for an interrogation program involving only seven of the CIA's enhanced interrogation techniques: sleep deprivation, nudity, dietary manipulation, facial grasp, facial slap, abdominal slap, and the attention grab.964 DCIA Talking Points for 9 March 2006 Principals Committee Meeting. This proposal was not acted upon at the time. The proposal for sleep deprivation of up to 180 hours, however, raised concerns among the National Security Council principals.965 Memorandum for the Record from [REDACTED], C / C T [Redacted] re: 9 March 2006 Principals Committee Meeting on Detainees.

In April 2006, the CIA briefed the president on the "current status" of the CIA's Detention and Interrogation Program. According to an internal CIA review, this was the first time the CIA had briefed the president on the CIA's enhanced interrogation techniques.966 See CIA document entitled, "DCIA Meeting with the President," dated ApriI 8, 2006. As previously noted, the president expressed concern at the April 2006 briefing about the "image of a detainee, chained to the ceiling, clothed in a diaper, and forced to go to the bathroom on himself."967 Email from: Grayson SWIGERT; to: [REDACTED]; cc: [Redacted] subject: Dr. [SWIGERT's] 7 June meeting with DCI; date: June 7, 2006.

On June 29, 2006, the Supreme Court issued its decision in the case of Harridan v. Rumsfeld, concluding that the military commission convened to try Salim Hamdan, a detainee at Guantanamo Bay, was inconsistent with statutory requirements and Common Article 3 of the Geneva Conventions. The implication of the decision was that treating a detainee in a manner inconsistent with the requirements of Common Article 3 would constitute a violation of federal criminal law. CIA attorneys analyzed the Hamdan decision, noting that it could have a significant impact on "current CIA interrogation practices."968 CIA memorandum from the CIA's Office of General Counsel, circa June 2006, entitled, "Hamdan v. Rumsfeld." Their memorandum also referenced that Acting Assistant Attorney General Steven Bradbury had the "preliminary view ... that the opinion 'calls into real question' whether CIA could continue its CT interrogation program involving enhanced interrogation techniques," as the CIA's enhanced interrogation techniques "could be construed as inconsistent with the provisions of Common Article 3 prohibiting 'outrages upon personal dignity' and violence to life and person."969 CIA memorandum from the CIA's Office of General Counsel, circa June 2006, entitled, "Hamdan v. Rumsfeld."

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The case of Hamdan v. Rumsfeld prompted the OLC to withdraw a draft memorandum on the impact of the Detainee Treatment Act on the CIA's enhanced interrogation techniques.970 Email from: [Redacted] to: [REDACTED]; cc: [Redacted] John Rizzo; subject: FW: Summary of Hamdan Decision; date: June 30, 2006, at 4:44 PM. Department of Justice Office of Professional Responsibility; Report, Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to die Central Intelligence Agency's Use of 'Enhanced Interrogation Techniques' on Suspected Terrorists, July 29, 2009 (DTS #2010-1058). The CIA did not use its enhanced interrogation techniques again until July 2007, by which time the OLC had interpreted the Military Commissions Act, signed by the president on October 17, 2006, in such a way as to allow the CIA to resume the use of the techniques.971 Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Acting 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.