An Overview of Enhanced : the Pros and Cons Dr. Jeff Dailey jeff.dailey@angelo.edu 325-486-6755
Keys to understanding what happened and why Reaction to national threat Definition (torture) changed for political reasons Public wanted a response to Sept 11, 2001 attacks CIA smarting under intel failure assertion President had given CIA direct responsibility for preventing another attack (9/17/2001) Necessity defense methods that would otherwise violate 18 U.S.C. 2340 2340A Belief that non coercive techniques wouldn t work Members of Al Qaeda were not POW status and AQ activity was not a criminal offense
Controlling Legal Constraint DOJ s Office of Legal Counsel (OLC) and CIA s Office of General Counsel determined that in instances relevant to CT, Detention, and, the controlling legal constraint on interrogation of detainees outside the U.S. was 18 U.S.C. 2340 2340B
18 U.S.C. 2340 Def of Torture (1) torture means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control; (2) severe mental pain or suffering means the prolonged mental harm caused by or resulting from (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality; and (3) United States means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
Enhanced Techniques In Aug 2002 DOJ provided to CIA a legal opinion in which 10 specific Enhanced Techniques (EITs) would not violate the above prohibition
EITs (from CIA IG Report, completed 2004, released 2009, p. 15) Attention grasp Walling technique Facial Hold used to keep the head immobile Facial or Insult slap Cramped confinement small or large box Insects placed in box with detainee Wall standing det stands 4 5 feet from wall Stress positions kneeling, leaning 45 deg Sleep deprivation not to exceed 11 days Waterboarding
of Abu Zubaydah Zubaydah, first high value detainee, captured in March 2002; rendition to Black site in Thailand OLC concluded in legal document (8 1 2002) that use of EITs on Zubaydah would not violate 18 U.S.C. 2340 because Agency personnel: (1) would not specifically intend to inflict severe pain or suffering, and (2) would not in fact inflict severe pain or suffering (CIA IG Report, p. 20)
Enhanced of KSM at Salt Pit "The guards monitored detainees using headlamps and loud music was played constantly in the facility," according to the report. "While in their cells, detainees were shackled to the wall and given buckets for human waste. Four of the 20 cells at the facility included a bar across the top of the cell." Other accounts cited in the report describe detainees being shackled to the bar with their hands above their heads, forcing them to stand, and therefore not allowing the detainees to sleep. Mohammed, known by the acronym KSM, was subjected to enhanced interrogation techniques within two days of his arrival, according to the report. "According to CIA records, interrogators began using the CIA's enhanced interrogation techniques at Detention Site Cobalt a 'few minutes after the questioning of KSM began," it stated. "KSM was subjected to facial and abdominal slaps, the facial grab, stress positions, standing sleep deprivation (with his hands at or above head level), nudity, and water dousing." In addition, "(the) chief of interrogations (at Cobalt) also ordered the rectal rehydration of KSM without a determination of medical need, a procedure that the chief of interrogations would later characterize as illustrative of the interrogator's 'total control over the detainee.' (CIA IG Report)
2001 September 11: al Qaeda backed terrorists hijack four passenger airliners and execute an attack on the World Trade Center in New York and the Pentagon in Washington, killing 2,996 people. September 17: President Bush gives the CIA the authority to capture, detain, and kill Al Qaeda operatives around the world.
2002 February: President Bush signs an executive order that says Common Article 3 of Geneva Convention, which prohibits mutilation, cruel treatment and torture, does not apply to Qaeda or Taliban captives March: Abu Zubaydah becomes first CIA detainee, sent to Black site in Thailand; interrogations are videotaped
2002 August: A memo issued by Jay Bybee, head of DOJ s Office of Legal Counsel, gives CIA after thefact authority to use enhanced interrogation August: CIA officers and contractors use waterboarding at least 83 times against Abu Zubaydah (CIA IG Report) September: Leaders of Intel Committees in both House and Senate are briefed on CIA EI techniques
2002 November: Coercive interrogations, including waterboarding, of Abd al Rahim al Nashiri, a CIA detainee, are videotaped November: Gul Rahman, another detainee at a CIA Black site in Afghanistan (Salt Pit), dies (reportedly of exposure) after being doused with cold water and left partially unclothed, sitting on concrete floor (CIA IG Report)
2003 January: CIA IG begins an investigation of the program; CIA Director George Tenet issues formal guidelines for RDI program February: Top CIA lawyer informs House and Senate Intel Committee leaders about existence of interrogation tapes; is advised (by House and Senate IC leaders) against destroying tapes
2003 March: Khalid Shaikh Mohammed (KSM), the selfdescribed planner of the September 11, 2001 terrorist attacks, is captured in Pakistan. He is waterboarded 183 times while held in CIA custody in Poland (CIA IG Report) September: Secretary of State Colin Powell and Defense Secretary Donald Rumsfeld are briefed on specifics of CIA s RDI program (Powell not told earlier because CIA afraid he would go off )
2004 January: Hassan Ghul, a key courier for Osama bin Laden, is captured and taken to a Black site in Romania. While there, he provides information which leads to the killing of OBL. Arguably, he provided this information either before or during enhanced interrogation May: CIA IG completes report that challenges legality of some interrogation methods and questions effectiveness of RDI; CIA Director orders halt to harshest methods used
2004 June: New head of DOJ s Office of Legal Counsel, Jack Goldsmith, rescinds 2002 DOJ memo giving CIA authority to use EITs December: Daniel Levin, acting head of DOJ s OLC (after Goldsmith resigned), issues new memo denouncing torture and broadening its definition
2005 May: Newly appointed head of DOJ s OLC, Steven Bradbury, issues new classified memos that endorse CIA s enhanced interrogation techniques November 2 nd : Washington Post reports the existence of CIA secret prison program; also reports CIA has been using rendition to Black sites in Eastern Europe
2005 November: Jose Rodriguez, Director of CIA s Clandestine Service, orders tapes of Zubayda and al Rahim al Hashiri destroyed December: The House approves a Senate measure to outlaw cruel and inhumane treatment of prisoners in American custody; CIA Director writes a memo to WH saying the CIA would carry out no harsh interrogations without DOJ approval
2006 April: President Bush receives first CIA briefing on enhanced interrogation techniques June: Supreme Court rules that Common Article 3 of Geneva Convention applies to all American detainees September: Members of Senate Select Committee on Intelligence (other than Chair and Vice Chair) are briefed on RDI program
2006 September: President Bush reveals existence of RDI program to public and says it led to capture of KSM; announces transfer of detainees from Black sites to Guantanamo Bay, Cuba; says all Black sites are empty; says 14 high value detainees (inc KSM) sent to Gitmo October: President Bush signs Military Commissions Act, which creates new rules for prosecuting and interrogating terror suspects
2007 July: President Bush issues Executive Order (13440) which allows CIA to use some interrogation methods (not WB) that are banned for military interrogations but DOJ says do not violate Geneva Convention December: New York Times reports on destruction of the interrogation tapes by CIA
2008 February: CIA Director Hayden testifies before Senate Intel Committee, saying that less than 100 people were held at CIA Black sites (since 9 11 01), and approximately one third of those were exposed to enhanced interrogation techniques; he said that 3 were waterboarded
2009 January: President Obama issues Executive Order ending CIA secret prison network, Rendition, Detention, and program, and enhanced interrogation of detainees March: Senate begins investigation of CIA RDI program April: Red Cross issues report on detainee treatment
2011 May: Osama bin Laden killed by Seal Team 6; his body is buried at sea 2012 January: Senate Intelligence Committee completes its 6000 page report 2013 January: CIA Director Brennan releases a rebuttal to Senate report
Summary of Senate Report The 6,000 page report produced 20 key findings. They are, verbatim from the unclassified summary report: The CIA's use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees. The CIA's justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness. The interrogations of CIA detainees were brutal and far worse than the CIA represented to policymakers and others. The conditions of confinement for CIA detainees were harsher than the CIA had represented to policymakers and others. The CIA repeatedly provided inaccurate information to the Department of Justice (DOJ), impeding a proper legal analysis of the CIA's Detention and Program. The CIA has actively avoided or impeded congressional oversight of the program. The CIA impeded effective White House oversight and decision making. The CIA's operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch agencies. The CIA impeded oversight by the CIA's Office of Inspector General. The CIA coordinated the release of classified information to the media, including inaccurate information concerning the effectiveness of the CIA's enhanced interrogation techniques.
Summary of Senate Report (cont) The CIA was unprepared as it began operating its Detention and Program more than six months after being granted detention authorities. The CIA's management and operation of its Detention and Program was deeply flawed throughout the program's duration, particularly so in 2002 and early 2003. Two contract psychologists devised the CIA's enhanced interrogation techniques and played a central role in the operation, assessments, and management of the CIA's Detention and Program. By 2005, the CIA had overwhelmingly outsourced operations related to the program. CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorized by CIA Headquarters. The CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention. The CIA's claims about the number of detainees held and subjected to its enhanced interrogation techniques were inaccurate. The CIA failed to adequately evaluate the effectiveness of its enhanced interrogation techniques. The CIA rarely reprimanded or held personnel accountable for serious or significant violations, inappropriate activities, and systematic and individual management failures. The CIA marginalized and ignored numerous internal critiques, criticisms, and objections concerning the operation and management of the CIA's Detention and Program. The CIA's Detention and Program was inherently unsustainable and had effectively ended by 2006 due to unauthorized press disclosures, reduced cooperation from other nations, and legal and oversight concerns. The CIA's Detention and Program damaged the United States' standing in the world, and resulted in other significant monetary and non monetary costs.
Contractors Contractors that developed the "enhanced interrogation techniques" (John "Bruce" Jessen and James Mitchell), received US$81 million for their services, out of an original contract worth more than US$180 million. NBC Newsidentified the contractors, who were referred to in the report via pseudonyms, as Mitchell, Jessen & Associates. Jessen was a senior psychologist at the Defense Department who taught special forces how to resist and endure torture (SERE). The report states that neither man had prior knowledge of Al Qaeda, nor were they practised interrogators,but they nevertheless "developed the list of enhanced interrogation techniques and personally conducted interrogations of some of the CIA's most significant detainees using those techniques. The contractors also evaluated whether the detainees' psychological state allowed for continued use of the techniques, even for some detainees they themselves were interrogating or had interrogated." The contractors developed a list of 20 forms of torture for use against detainees, which was cut down to 10 since some forms were considered too harsh. The list included waterboarding, sleep deprivation and stress positions.john Rizzo, the CIA acting general counsel who met with the contractors, described them as "sadistic and terrifying" in his book Company Man.Mitchell and Jessen were formerly SERE psychologists who have been accused of "reverse engineering" SERE techniques for use against detainees.
Brennan s CIA Rebuttal The C.I.A. acknowledged that its statements were sometimes inaccurate or speculative, and promised to do better in the future. But it said the committee s report unfairly dismissed the value of intelligence gathered from detainees, particularly in understanding Al Qaeda and tracking Osama bin Laden.
CIA Rebuttal Killing of bin Laden No counterterrorism mission was more successful or higher profile than the secret raid that killed Osama bin Laden in 2011. Almost immediately, C.I.A. officials began telling Congress that its interrogation program led them to a secretive courier, Abu Ahmed al Kuwaiti, who in turn led the C.I.A. to the doorstep of the world s most wanted terrorist.
CIA Rebuttal But in page after page of previously classified evidence, the committee calls those statements inaccurate. The report shows that, as early as 2002, the C.I.A. received a wealth of evidence about the courier, including his alias and his association with Bin Laden, as well as a physical description and family connections that would later prove crucial in finding him. By the end of the year, the C.I.A. was wiretapping his phone number and email address and had recordings of his voice. The linchpin in the hunt for the courier was a detainee named Hassan Ghul. But Mr. Ghul was cooperative from the outset. One officer said he sang like a tweetie bird. Mr. Ghul spoke expansively about the courier, describing him as Bin Laden s closest assistant. Despite the cooperation, the C.I.A. decided to torture Mr. Ghul, subjecting him to sleep deprivation and stress positions. He hallucinated. His heart fell out of rhythm. But he provided no actionable threat information. Nevertheless, after the Bin Laden raid, the C.I.A. provided Congress with a document listing Mr. Ghul as a detainee who had been subjected to enhanced interrogation and provided valuable intelligence on Bin Laden s courier. The document did not make clear that the valuable intelligence came before the harsh tactics.
CIA Rebuttal Thwarting of Dirty Bomb and Capture of Jose Padilla José Padilla, who was accused of plotting a radiological dirty bomb attack inside the United States, was one of the first American citizens designated an enemy combatant. The Bush administration credited the interrogation of Abu Zubaydah with uncovering the plot and leading investigators to Mr. Padilla. His arrest has been held up for years as proof that waterboarding and other tactics worked. COMMITTEE S CONCLUSION But Abu Zubaydah's information on Mr. Padilla was sketchy, and he provided it well before he was waterboarded. Mr. Padilla, in fact, was arrested in May 2002, three months before the C.I.A. interrogation program began.