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The Torture Report Diary
The Torture Report, an initiative of the ACLU’s National Security Project, aims to give the full account of the Bush administration’s torture program. It will bring together everything we know from government documents, investigations, press reports, witness statements and other publications into a single narrative – one that is updated regularly and subject to critical review and improvement as it unfolds.
This Diary page will guide you through newly added sections, recent additions and changes and other relevant information about the Report.
MS. PERINO: Because we follow the law.
Q: --if you don't know what was in the other opinions, the classified opinions?
MS. PERINO: Because all of the opinions and all of the discussions, everything has to be within the law and the policy, and the policy of the United States is that we don't torture.
Q: Well, we'd like to believe that, but there's no way to assure us, is there?
MS. PERINO: I think to a certain extent, yes, and that's why we have, for example, that December 4 2004 opinion that lays out broadly how we interpret the law.
Q: Taking your word for it, though, is not true—
MS. PERINO: Well, I think that the American people can understand—I believe that the American people can understand why there are certain pieces of information and tools that we use in the global war on terror that remain classified in order to protect them—
Q: Why do you believe that?
MS. PERINO: --and I believe they have every right to know that.
Q: Why do you believe they are not disgraced and shamed when torture is attached to our name?
MS. PERINO: Helen, the United States policy is not to torture, and we do not.
Q: I hear what you're saying, the policy. But what do we really do—
MS. PERINO: The American people have every right to be very proud of what we've done, and we have not had another terrorist attack on this country. And they should be glad of that, as well.
Q: So the end justifies the means.
MS. PERINO: Our end is that we don't—our means are that we don't torture, and the end result is that we've not had a terrorist attack.
Subject: CARE OF DETAINEE USCIT [redacted]
The materials are Vaughn indexes containing brief descriptions of 165 internal CIA electronic communications relating to the reasons behind the destruction of the tapes. The CIA continues to withhold the documents themselves, but descriptions of several of the documents are illuminating.
A few of the things we learn:
- The conversation about destroying the tapes began during the torture of Abu Zubaydah. Two cables sent from the black site to CIA headquarters on August 19, 2002 discuss “lessons for the future based on CIA experience” and an August 20, 2002 cable discusses “a proposed policy regarding the use of videotapes in interrogations.”
- There were extensive conversations about destroying the videotapes in December 2002, right after a CIA lawyer had traveled to the Thai black site to review the tapes and just as the CIA’s inspector general was beginning his special review of the CIA’s RDI program. This conversation, carried out in numerous cables between December 19 and the end of the month, included “proposals on how to handle the possible destruction of the videotapes” and culminated in a memo to CIA Director George Tenet on “the disposition of the videotapes.”
- Chapter 3 suggested that, after the July 38, 2003 Principals meeting, the question of the tapes “seemed settled” until the publication of the Abu Ghraib photos in April 2004. In fact, the Vaughn index shows the conversation continuing even during this period, with a sequence of emails around September 22, 2008 “concerning a draft memo on the destruction of the videotapes” and a February 19, 2004 email with attachment “concerning the legalities as to whether the CIA is legally required to retain the videotapes.”
- There are numerous emails in the days leading up to destruction of the videotapes on November 8, 2005, just after the Washington Post published Dana Priest’s front-page exposé of CIA secret prisons and the day before The New York Times published a story on the CIA inspector general’s damning report. The CIA is clearly bracing for these leaks: on October 31, there is a 13-page email chain “discussing whether to publically acknowledge the counterterrorism program” and on November 1, an email with attachment “that discusses the Agency’s detention and interrogation program from a legal standpoint.” There are communications orchestrating how the agency will talk about the destruction of the tapes—a November 4 email “that contains proposed language regarding the disposition of the tapes,” and a November 10 email with the subject “Language for tapes” that discusses “communication between CIA officers relating to the tapes.” Finally, there are destruction orders themselves: a one-page cable on November 8 from the black site to headquarters “requesting permission to destroy the videotapes” and a two-page cable that same day, under the subject “Approval to destroy videotapes,” “discussing a proposal and granting permission to destroy.”
Interestingly, in a related affidavit summarizing the agency’s reasons for continuing to withhold these communications, the CIA says it was willing to release parts of thirteen of the documents.
Prior to releasing the documents, however, the Agency was informed by the Department of Justice that Special Prosecutor John Durham was asserting Freedom of Information Act (FOIA) Exemption (b)(7)(a) over the proposed-for-release portions of 10 of the 13 documents that the CIA was prepared to release in part. The other three documents the CIA proposed for partial release have Congressional equities that require consultation with Congress before a final determination can be made. Therefore, all of the documents are currently withheld in full.
The three documents being withheld pending consultation with Congress relate to the February 2003 briefings of two members each of the House and Senate Intelligence Committees—the briefings that prompted Jane Harman’s letter counseling against destroying the tapes.
The 10 documents that Durham is apparently blocking from release, on the grounds that their release would interfere with an ongoing criminal investigation, are:
- a 11/9/05 email with embedded cable “confirming the destruction of the videotapes that were stored at a field location”;
- an 10/25/02 cable from CIA Headquarters to the field “discussing a proposal to destroy the videotapes”;
- a 10/27/02 document consisting of “excerpts of two cables discussing the use of the videotapes”;
- a 12/02/02 cable with the subject “Destruction of classified materials” that contains “excerpts from two cables discussing a proposal to destroy the videotapes;
- a 12/03/02 cable with the same subject line “discussing the proposed destruction of classified material”;
- the 11/08/05 cable requesting permission to destroy the videotapes;
- the 11/08/05 cable granting permission to destroy the videotapes;
- an undated memo that is a “two-page timeline” “regarding the destruction of the AZ tapes;
- an undated three-page memo with the subject line “Interview Questions” that is a “list of questions regarding the CIA’s RDI program”; and
- an undated document with the subject “CIA Interrogation Techniques” that is a “thirteen-page memo with handwritten marginalia discussing the CIA’s interrogation of Abu Zubaydah.”
We know from these most recent Vaughn indices, which follow similar indices of documents relating to the tapes’ destruction that the CIA has forwarded to the ACLU in recent months, that there is a substantial paper trail surrounding the destruction of the videotapes. We know Durham has been down that trail. Where is his investigation going?
One of the most fascinating aspects of huge caches of official documents is how, the more you look at them, the more human, and less coldly bureaucratic, they reveal themselves to be.
Last week, the Justice Department released another round of documents in response to the ACLU’s torture documents FOIA, these mainly connected to the DOJ’s Office of Inspector General’s 2008 review of the FBI’s involvement in interrogations in Guantánamo, Afghanistan, and Iraq.
Two in particular caught my eye.
The first is, on the surface, one of the least personal of the bunch. This 6-page document (which begins on page 25 of this batch), headed “Potentially Relevant Federal Criminal Statutes,” simply lists the laws under which abusive interrogators might be tried – not just the torture and war crimes statutes, but also federal laws barring assault, maiming, sexual abuse, obstruction of justice, conspiracy, and others.
The second, on the opposite end of the spectrum, is 9 pages of handwritten notes evidently summarizing interviews with FBI agents in Guantánamo (this document begins on page 13 of this batch). It includes such striking notations as:
Camp X-ray was locale where harsh techniques were used.
“if you think this is tough – you should see what’s happening in Afghanistan”
-- During [illegible] meeting [name redacted] learned he was in hospital w/ hypothermia
-- [name redacted] asked about him
-- Colonel: not hypothermia. Low core temp & low B/P. Corpsman was present
Clear to [name redacted] that they didn’t get it.
BAU – not effective but also skews into abuse
-- stuff w/in boundary of their guidelines just gets out of control
It is the kind of document you can spend hours staring at, first deciphering the handwriting, then trying to connect shorthand references to what is known about the cases they refer to (#63 is Mohammed al-Qahtani), and then trying to picture the conversations the notes summarize.
And yet I keep returning to the first one, and the fact that, as Office of Legal Counsel attorneys were occupied with twisting and distorting the Torture Convention to accommodate SERE techniques and enhanced interrogation methods, someone took the time to sit down and simply list the laws prohibiting the kinds of treatment detainees were being subjected to in Guantánamo, Afghanistan, and Iraq. As such, it, too, is a very human document, striking in its intellectual and moral clarity.
1. The French Merchant Vessel Limburg incident.
2. The USS COLE bombing.
3. The rockets in Saudi Arabia .
4. The plan to bomb American ships in the gulf.
5. Relationship with people committing bombings in Saudi Arabia .
6. Usama Bin Laden having a nuclear bomb.
7. A plan to hijack a plane and crash it into a ship.
We post the first of Chapter 3's five sections today, and will add sections every day over the next week.
In reading your latest post about the mystery document, I recognized many of the quotes, and wanted to share the sources with you and our readers.
1. Describe how each technique is consistent with “traditional executive behavior, contemporary practice, and the standards of blame generally applied to them.” This is a quote from the Supreme Court opinion, County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998) ”in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them.”
2. To what extent are the techniques designed to “instill stress, hopelessness, and fear, and to break resistance.” I believe that the source of this quote is a federal appellate opinion Cooper v. Dupnik, 963 F.2d 1220, 1229 (9thCir. 1992) “ In accord with the plan, the record amply demonstrates that Cooper was subjected to Barkman's interrogation techniques designed to instill stress, hopelessness, and fear, and to break his resistance.”
This case sets forth a standard for what it takes to overcome the qualified immunity standard in a civil rights lawsuit against government officials. The Supreme Court denied certiorari on this case. Here is the Lexis-Nexis overview of Cooper v. Dupnik:
3. Do any of the techniques cause “severe mental distress or suffering”? This language paraphrases the Convention Against Torture, Article I: “torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession” The prohibition on torture in the CAT has been codified into U.S. criminal law in the U.S. War Crimes Act, which provides the following definition of torture: “ an act 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 for the purpose of obtaining information or a confession” 18 U.S. C. § 2441 (d) (1)(A)
4. How close is each technique to the “rack and screw”? This is a quote from Rochin v. California, 342 U.S. 165, 172 (1952) , a Supreme Court case which established the premise that evidence derived from outrageous government conduct could be excluded and convictions based on such evidence could be overturned. The full quote from Rochin: “ This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents -- this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”
5. Do the techniques “offend hardened sensibilities”? Another quote from Rochin v. California , 342 U.S. 165, 172 (1952)
6. Do the techniques violate “the whole community sense of decency and fairness that has been woven by common experience into the fabric of acceptable conduct”? This is a quote from another Supreme Court case, Breithhaupt v. Abram , 352 U.S. 432, 436 (1957) : “ Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of "decency and fairness" that has been woven by common experience into the fabric of acceptable conduct. It is on this bedrock that this Court has established the concept of due process.” (A sphygmogram is a tracing made by a sphygmograph and consisting of a series of curves that correspond to the beats of the heart.)
7. Do the techniques “violate the decencies of civilized conduct”? Another quote from Rochin v. California , 342 U.S. 165, 173 (1952): “It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion. These decisions are not arbitrary exceptions to the comprehensive right of States to fashion their own rules of evidence for criminal trials. They are not sports in our constitutional law but applications of a general principle. They are only instances of the general requirement that States in their prosecutions respect certain decencies of civilized conduct. Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend "a sense of justice."
8. Are the techniques “so egregious, so outrageous, that they fairly may be said to shock the contemporary conscience”? This is a quote from another U.S. Supreme Court opinion, County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998) : I n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them.
The County of Sacramento quote is a paraphrasing of Rochin v. California , “ This is conduct that shocks the conscience.”
What the series of questions in this mystery document suggests is that those reviewing the interrogation techniques were concerned that the use of the techniques could subject them to criminal charges for torture or civil lawsuits for damages, and could result in the exclusion of the evidence obtained and/or dismissal of entire charges in subsequent criminal prosecutions of the persons being interrogated utilizing the proposed techniques on the basis of a due process violation.
This questionnaire also shows the author's awareness that the Supreme Court would likely find that Constitutional due process standards would apply to detainees when ultimately tried, even in military commissions.
This series of questions highlights the importance of the President's decision that the Geneva Conventions, even Common Article 3, did not apply to those captured in the war on terror. If these standards applied, then you wouldn't need all these questions, because you would only need to ask one question about any proposed interrogation technique: “Is it humane?” (Common Article 3 requires that persons detained in an armed conflict “shall in all circumstances be treated humanely.”) “Is it humane?” is the one question you will never see in any of the Bush Administration memos.
- Describe the importance of each technique as applied to this person. What do you reasonably hope to accomplish? Describe past successes of each technique in detail.
- Describe how each technique is consistent with “traditional executive behavior, contemporary practice, and the standards of blame generally applied to them.” Describe any other traditions – in state law, or in foreign practice – in which these techniques are used or approved.
- To what extent are the techniques designed to “instill stress, hopelessness, and fear, and to break resistance.”
- Do any of the techniques cause “severe mental distress or suffering”?
- How close is each technique to the “rack and screw”?
- Do the techniques “offend hardened sensibilities”?
- Do the techniques violate “the whole community sense of decency and fairness that has been woven by common experience into the fabric of acceptable conduct”?
- Do the techniques “violate the decencies of civilized conduct”?
- Are the techniques “so egregious, so outrageous, that they fairly may be said to shock the contemporary conscience”
Leave aside the shock of seeing the phrase “rack and screw” in a document evidently intended for someone preparing or approving an interrogation plan. What I find deeply disturbing is the way it mirrors and encourages the kind of sophistry that pervaded the OLC's torture memos.
In other words, the only examples the OLC can point to where “contemporary practice” includes the enhanced interrogation methods are the military's SERE training – where they are used in carefully controlled scenarios to mimic the torture methods of authoritarian regimes – and in countries whose detention and interrogation practices are criticized in the U.S. State Department's annual human rights reports. And so, despite the fact that in both those situations we call the methods what they are, torture, somehow, by virtue of the fact they're used somewhere, they don't shock the conscience.
One of the most striking things to me as I work my way through the documents is how much opposition there was to the Bush torture program, from within the administration and from men and women in the U.S. military and intelligence services, from the very beginning.
Recounting the clash over Zubaydah's interrogation, the OIG's report describes a 2002 meeting with Director Mueller, FBI Assistant Director for Counterterrorism Pasquale D'Amuro, and Andrew Arena, Section Chief of the FBI's International Terrorism Operations. “Arena stated that there were discussions with the FBI regarding “should we go down that track?” the report relates. “Arena told the OIG that during the meeting D'Amuro predicted that the FBI would have to testify before Congress some day and that the FBI should be able to say that it did not participate.”
But operating in the same climate, the FBI – the one agency with real interrogation experience and a proven record of eliciting information from al-Qaeda detainees – declared from the outset that abusive interrogations were ineffective, short-sighted, and wrong.
“I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied,” Zubaydah tells the ICRC. “It felt like they were experimenting and trying out techniques to be used later on other people.”
The more we learn about his interrogation, the more we see how right he was.
Today we launch The Torture Report. On this site, over the next several months, we will construct a comprehensive account of the Bush administration’s torture program.
The goal is simple: to tell the whole story and to get it right. How to do this – how to bring together everything we know from tens of thousands of formerly secret documents, from official and independent investigations, from press reports and the many good books that have recently appeared, and from the growing number of first-hand accounts of those who witnessed, participated in, or suffered mistreatment, how to register it all so we can come to some conclusions – is a daunting challenge.
But it’s a challenge we all share. In a way, as the Report’s lead writer, I’m just trying to do what any one of us should be doing in the face of evidence that our elected officials presided over gross human rights violations: to piece together exactly what happened and who is responsible.
I have help, fortunately. As sections are posted, a group of expert Contributors will offer comments; you’ll see their annotations, which will include corrections, elaborations, questions, and suggestions, in-line in the text. We invite your comments as well; these will appear at the end of the chapters. The Report will be constantly updated to incorporate the best of these suggestions and the very latest information.