Chapter 2 - Experimenting With Torture

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When the International Committee of the Red Cross finally got to see Abu Zubaydah late in 2006, four and a half years after he disappeared into a secret CIA prison, this is what he said:

I woke up, naked, strapped to a bed, in a very white room. The room measured approximately 4m x 4m. The room had three solid walls, with the fourth wall consisting of metal bars separating it from a larger room. I am not sure how long I remained in the bed. After some time, I think it was several days, but can't remember exactly, I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next 2 or 3 weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go the toilet, which consisted of a bucket. Water for cleaning myself was provided in a plastic bottle.

I was given no solid food during the first two or three weeks, while sitting on the chair. I was only given Ensure and water to drink. At first the Ensure made me vomit, but this became less with time.

The cell and room were air-conditioned and were very cold. Very loud, shouting type music was constantly playing. It kept repeating every fifteen minutes twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.

The guards were American, but wore masks to conceal their faces. My interrogators did not wear masks.
During this first two to three week period I was questioned for about one to two hours each day. American interrogators would come to the room and speak to me through the bars of the cell. During the questioning the music was switched off, but was then put back on again afterwards. I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water in my face.

After about two or three weeks I began to receive food, rice, to eat on a daily basis. They gave it once a day. I could eat with my hand, but I was not allowed to wash. It was also around this time that I was allowed to lie on the floor. I remained naked and in shackles, but I could sleep a little. It went on like this for about another one and a half months.

During the first few days a doctor came and gave me an injection. I was told it was an anti-biotic. After about one and a half to two months I was examined by a female doctor who asked why I was still naked. My measurements were taken and the next day, I was provided with orange clothes to wear. This was followed however, by more threats that worse was to follow.

Indeed, the next day guards came into my cell. They told me to stand up and raise my arms above my head. They then cut the clothes off of me so that I was again naked and put me back on the chair for several days. I tried to sleep on the chair, but was again kept awake by the guards spraying water in my face.

When my interrogators had the impression that I was cooperating and providing the information they required, the clothes were given back to me. When they felt I was being less cooperative the clothes were again removed and I was again put back on the chair. This was repeated several times.

Eventually (I don't remember after how long), I was allowed to have a mattress and was given a towel to use as a sheet to cover myself with while sleeping. I was allowed some tissue paper to use when going to toilet on the bucket.

There then followed a period of about one month with no questioning. During this period I was given food, rice and beans, on a daily basis, varying between once and twice a day. They also continued to give me Ensure to drink. My cell was still very cold and the loud music no longer played, but there was a constant loud hissing or crackling noise, which played twenty-four hours a day. I tried to block out the noise by putting tissue in my ears.

There then followed a period of about one month with no questioning. Then, about two and a half or three months after I arrived in this place, the interrogation began again, but with more intensity than before. Then the real torturing started.

Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow, measuring perhaps 1m x 0.75m and 2m in height. The other was shorter, perhaps only 1 meter in height. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face. As I was still shackled, the pushing and pulling around meant that the shackles pulled painfully on my ankles.

I was then put into the tall box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside. It had a bucket inside to use as a toilet and had water to drink provided in a bottle. They put a cloth of cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck. I think that the plywood was there to provide some absorption of the impact of my body. The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury.

During these torture sessions many guards were present, plus two interrogators who did the actual beating, still asking questions, while the main interrogator left to return when the beating was over. After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don't know how long I remained in the small box, I think I may have slept or maybe fainted.

I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me. I remained in the box for several hours, maybe overnight. I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before. I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold.

This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation.

During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved everyday.

I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.

I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.

At the end of this period two women and a man came to interrogate me. I was still naked and, because of this, I refused to answer any questions. So they again repeatedly slapped me in the face and smashed me against the wall using the towel around my neck. The following day I was given a towel to wear around my waist, but I was still very cold.

Then, little by little, things started to get better. I was again given rice to eat. Then my mattress was returned. I was allowed to clean my cell. The tall box was removed, but the short one remained in the room outside my cell, I think as a deliberate reminder as to what my interrogators were capable of. One week after the end of torture I was given a pair of green shorts and a top to wear. The food also improved with the addition of beans and fruit.

I was provided with water and allowed to wash inside the cell. However, the loud noise continued throughout the nine months I spent in that place. I was never given any outdoor time. 1

In his September 2006 speech announcing the transfer of the fourteen “high value detainees” from CIA black sites to Guantánamo, President Bush described the group as “dangerous men with unparalleled knowledge about terrorist networks and their plans for new attacks.” He reported that one of these men, Abu Zubaydah, a “senior terrorist leader and trusted associate of Osama bin Laden,” had run a terrorist training camp in Afghanistan where some of the 9/11 hijackers trained and had helped smuggle al-Qaeda leaders out of Afghanistan. Zubaydah was severely wounded during his capture and survived thanks to medical care arranged by the CIA, the president said, and though he initially disclosed some “nominal” information during questioning, he ultimately proved “defiant and evasive.”

We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful. I cannot describe the specific methods used – I think you understand why – if I did, it would help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe, and lawful, and necessary. 2

The ICRC had no trouble ascertaining what these specific methods were from its interviews with the fourteen. Although they had been held in complete isolation in black sites scattered around the globe and interviewed separately in Guantánamo after their transfer, their accounts were so consistent that the ICRC assembled a list of abusive techniques. It included suffocation by water; prolonged stress standing positions, naked, with arms extended and chained above the head; beatings by use of a collar; beating and kicking; confinement in a box; prolonged nudity; sleep deprivation; exposure to cold temperature or cold water; prolonged shackling of the hands and feet; threats of ill-treatment to the detainee or his family; forced shaving; and deprivation or restricted provision of solid food.

The Red Cross also discovered from those interviews that doctors or psychologists had monitored their interrogations, at times instructing interrogators on whether to continue, adjust, or stop particular methods. Noting that the “accepted role of the physician, or any health professional, clearly does not extend to ruling on the permissibility, or not, of any form of physical or psychological ill-treatment,” and that in any case the presence of doctors and psychologists belies any claim that these methods are safe, the ICRC definitively concluded that the treatment of Abu Zubaydah and the other “high value detainees” included both torture and cruel, inhuman, and degrading treatment, both prohibited under the Geneva Conventions and the 1984 UN Convention Against Torture.3

It's hardly a surprising conclusion, considering the genesis of these “alternate procedures.”

 

In the first days of 2002, a soldier working as a translator for a team interrogating incoming prisoners at Kandahar Detention Facility in Afghanistan filed a sworn statement dutifully reporting what she recognized as illegal abuse of a detainee. She had taken a break with her team to review their notes. When they left the interrogation booth, she saw several “special forces” members enter, she wrote; when she returned from her break, she found the special forces members crouched around the prisoner.

They were blowing cigarette smoke in his face. The prisoner was extremely upset. It took a long time to calm him down and find out what had happened. The prisoner was visibly shaken and crying. [redacted] immediately told them to get out and not to come back anywhere near anyone that we were talking to. I could tell something was wrong. The prisoner was extremely upset. He said that they hit him, told him that he was going to die, blew smoke in his face, and had shocked him with some kind of device. He used the term “electricity.”

In her statement, she notes that she reported the abuse and that the “chain of command took action to ensure that nothing of that sort could happen again.” Nevertheless, she wrote,

I was very upset that such a thing could happen. I take my job and my responsibilities as an interrogator and as a human being very seriously. I understand the importance of the Geneva Convention and what it represents. If I don't honor it, what right do I have to expect any other military to do so? 4

As she was writing these words, two military psychologists were finalizing a paper titled “Recognizing and Developing Countermeasures to al-Qaeda Resistance to Interrogation Techniques,” the first in a series of proposals that would turn this country's relationship to the Geneva Conventions upside-down.

In December 2001, the CIA had asked Dr. James Mitchell to prepare a paper on overcoming training al-Qaeda members receive to resist divulging information during interrogations. Mitchell, a recently-retired psychologist from the Air Force's Survival Evasion Resistance Escape (SERE) program, enlisted Dr. John “Bruce” Jessen, the program's active-duty senior psychologist, to help prepare a plan. The Department of Defense, too, was interested in their work; that same month, the DoD's General Counsel's office had contacted the Joint Personnel Recovery Agency (JPRA), which oversees SERE programs for all the armed services, looking for ideas on detainee “exploitation.”5

SERE training, as the United States Senate Armed Services Committee explained in its November 2008 report on detainee abuse, is designed to simulate conditions U.S. military personnel might endure “if captured by an enemy that did not abide by the Geneva Conventions.” All three of the services run SERE programs that expose service members at high risk of capture to forms of “illegal exploitation” U.S. prisoners of war have endured over the last 50 years.

The techniques used in SERE school, based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy's SERE school, it included waterboarding.” 6

Neither Mitchell nor Jessen had any experience as interrogators. As SERE psychologists, their role was to ensure that volunteers were not harmed or traumatized by their experiences. Jessen had at one point acted the part of an enemy interrogator, but SERE interrogators are role players who have no experience in intelligence gathering or eliciting information. The whole exercise is tightly controlled and designed to fortify students to endure torture. Commanders and psychologists monitor instructors and make sure they don't suffer from “moral disengagement” and start to view students as prisoners or detainees. Students volunteer for the training, are regularly debriefed, and are given safe words to use in case the mock interrogations become too stressful.7

But Mitchell and Jessen proposed “reverse engineering” the process – which meant, essentially, returning the abuse to its original purpose. As they began formulating a plan, the Bush administration was working around the obvious hypocrisy of adopting interrogation techniques developed by some of the 20 th century's most abusive regimes. On January 9, 2002, John Yoo of the Justice Department's Office of Legal Counsel and Robert Delahunty, Special Counsel to Defense Department General Counsel William J. Haynes II, sent a legal memorandum to Haynes advising him that the Geneva Conventions, and particularly the Third Geneva Convention governing the treatment of prisoners of war, do not apply to captured Taliban fighters and members of al Qaeda.8

David Frakt 10/19/09: It is not quite accurate to say that they were returning the abuse to its original purpose. The techniques designed by the Chinese Communists, and further perfected by the Russians and North Vietnamese were not necessarily intended to gather accurate (or, in the modern parlance, "actionable" intelligence). Rather, the techniques utilized at SERE were designed to elicit confessions, regardless of the truth of the contents of the confession, which could be exploited for propaganda purposes or used to frame individuals for crimes they did not commit. Psychologists who have studied these techniques have learned that those subjected to the techniques are likely to tell their captors whatever they think they want to hear in order to stop the abuse.

While this may include some accurate information, the subjects will also fabricate voluminous information in their desperation to provide something to stem the torture, and they will readily agree to whatever is suggested to them by their interrogators. This is why such techniques, in addition to being immoral and illegal, are largely worthless as intelligence-gathering tools.

White House Counsel Alberto Gonzales briefed President Bush on the memo on January 18, and the president agreed with its conclusion. The following day, Secretary of Defense Donald Rumsfeld instructed General Richard Myers, Chairman of the Joint Chiefs of Staff, to inform all field commanders that al Qaeda and Taliban members are “not entitled to prisoner of war status” under the Geneva Conventions, though they should “treat [detainees] humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.”9

Secretary of State Colin Powell pushed the president to reconsider the decision. He argued that the policy put U.S. soldiers at risk of torture if they are captured; encouraged other countries to skirt the Conventions; discouraged countries from handing over terrorism suspects to the U.S.; hurt the U.S.'s international image; and undermined the high standards of U.S. military culture. Powell said he could agree that al Qaeda and Taliban fighters might not be afforded POW status, but only on a case-by-case basis after a status hearing before a military board.

Gonzales pushed back. In a January 25, 2002 memorandum to the President, in which he famously suggested that the war on terrorism is a new kind of war that “renders obsolete Geneva's strict limitations on questioning of enemy prisoners” and “renders quaint some of its provisions,” Gonzales dismissed Powell's arguments as “unpersuasive.” In their place, he offered two in favor of denying Geneva Convention protections: first, that doing so “preserves flexibility” precisely because it eliminates the need for case-by-case determinations; and second, that it “substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).” As Gonzales noted,

That statute, enacted in 1996, prohibits the commission of a "war crime" by or against a U.S. person, including U.S. officials. "War crime" for these purposes is defined to include any grave breach of [Geneva Convention III on the Treatment of Prisoners of War (GPW)] or any violation of common Article 3 thereof (such as "outrages against personal dignity"). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban.10

“Your determination [that GPW does not apply] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution,” Gonzales concluded.

On February 7, 2002, President Bush signed a memorandum to Dick Cheney, Colin Powell, Donald Rumsfeld, Alberto Gonzales, Andrew Card, George Tenet, Condoleezza Rice, and General Richard Myers memorializing the position on the inapplicability of the Geneva Conventions. Five days later, Mitchell and Jessen began circulating their paper to the CIA and the Defense Department, which was overseeing a growing number of prisoners in Afghanistan and Guantánamo.11

Within days, Mitchell, who was now working as a contract employee for the CIA, and Jessen began giving training courses to put their ideas into action. The Senate Armed Services Committee has documented how, responding to a February 2002 request from the DoD's Defense Intelligence Agency, Jessen and JPRA instructor Joseph Witsch gave an “ad hoc ‘crash' course” for a group of military interrogators headed for Guantánamo and held a video teleconference to “pitch” how JPRA could assist with interrogations. By March 8, they were presenting slide shows on detainee “exploitation.”12

In April, Jessen circulated his “Exploitation Draft Plan” to “[h]old, manage, and exploit detainees to elicit critical information” at an “exploitation facility” that would be inaccessible to non-essential personnel, press, ICRC, or foreign observers.13 In June, he led a two-day training session for military interrogators headed for rotations “in Afghanistan and elsewhere,” and he held another one in July where Joseph Witsch acted as the “beater” in a demonstration of SERE school scenarios and which included instruction on waterboarding.14

Shortly after that training, Jessen retired from the Air Force and joined Mitchell as a contract employee of the CIA. By then, Mitchell was in a secret CIA prison in Thailand overseeing the use of “enhanced interrogations techniques” in the questioning of Abu Zubaydah, personally delivering the news, as Zubaydah would tell the ICRC five years later, that he “was one of the first to receive these interrogation techniques, so no rules applied.”

 

There are two photographs from the night of Abu Zubaydah's capture, March 28, 2002. One is of two parallel, curving trails of blood leading into or out of a doorway. The other is an ABC news photograph of Zubaydah in the bed of a pickup truck, head on the tailgate, clean-shaven and wild-haired, obviously gravely wounded.

That night, U.S. and Pakistani forces had simultaneously raided 14 safehouses in and around Faisalbad, Pakistan, where the U.S. believed Zubaydah might be staying. Zubaydah, a Saudi-born Palestinian who had grown up in the West Bank, went to Afghanistan in 1991 to fight the Soviets and stayed on after the war, eventually becoming a coordinator of the Khalden training camp, which had trained mujahadeen fighters during the war and continued to operate until late 2000 or early 2001. The U.S. had been trying to track him since before 9/11, and by March 2002, based either on massive surveillance or on tips purchased from Pakistani authorities,15 the search was narrowing.

During the raid, Zubaydah was shot in the stomach, testicle, and thigh. He was driven to a local hospital, and then quickly transferred to a better hospital in Lahore , where a team of doctors rushed from the United States performed surgery. Immediately afterwards – on March 31, 2002 – he was strapped to a gurney and flown to a prison cell the CIA had set up in Thailand for his interrogation.

Abu Zubaydah, whose real name is Zayn al-Abidin Muhammad Husayn, was first questioned by two FBI agents who were flown to the black site right after Zubaydah's capture. One of the agents, then 30-year-old Ali Soufan, was one of the FBI's leading experts on al Qaeda and a skilled interrogator who had been involved in many of the major terrorism investigations of the previous decade. Philip Zelikow, who served as Executive Director of the 9/11 Commission before joining the Bush administration in 2005, called him “one of the most impressive intelligence agents – from any agency” that the 9/11 Commission encountered.16

Soufan and his partner nursed Zubaydah as he recuperated, changing his dressings and holding ice to his lips for a fever, and Zubaydah was soon divulging important information. In testimony before the Senate Judiciary Committee in May 2009, Soufan explained his approach as “Informed Interrogation,” the careful process of rapport-building that the intelligence agencies, law enforcement, and the military used, exclusively and successfully, to produce information. Under his questioning, Zubaydah identified Khalid Shaikh Mohammed by his alias “Mukhtar” and revealed Mohammed's role as the mastermind behind the 9/11 attacks. As Soufan told the Committee:

The information was so important that, as I later learned from open sources, it went to CIA Director George Tenet, who was so impressed that he initially ordered us to be congratulated. That was apparently quickly withdrawn as soon as Mr. Tenet was told that it was FBI agents who were responsible. He then immediately ordered a CIA [ Counterterrorist Center ] team to leave DC and head to the location to take over from us.17

Over the next two months, Soufan clashed repeatedly with the CIA team, led by Dr. Mitchell, over Mitchell's proposed methods – methods Soufan insists were both abusive and ineffective:

A few days after we started questioning Abu Zubaydah, the CTC interrogation team finally arrived from DC with a contractor who was instructing them on how they should conduct the interrogations, and we were removed. Immediately, on the instructions of the contractor, harsh techniques were introduced, starting with nudity….

The new techniques did not produce results as Abu Zubaydah shut down and stopped talking. At the time nudity and low-level sleep deprivation (between 24 and 48 hours) was being used. After a few days of getting no information, and after repeated inquiries from DC asking why all of a sudden no information was being transmitted (when before there had been a steady stream), we again were given control of the interrogation.

We then returned to using the Informed Interrogation Approach. Within a few hours, Abu Zubaydah again started talking and gave us important actionable intelligence.18

But Mitchell again interrupted the process:

After a few days, the contractor attempted to once again try his untested theory and he started re-implementing the harsh techniques. He moved this time further along the force continuum, introducing loud noise and then temperature manipulation.

Throughout this time, my fellow FBI agent and I, along with a top CIA interrogator who was working with us, protested, but we were overruled. I should also note that another colleague, an operational psychologist for the CIA, had left the location because he objected to what was being done.

Again, however, the technique wasn't working and Abu Zubaydah wasn't revealing any information, so we were once again brought back in to interrogate him. We found it harder to reengage him this time, because of how the techniques had affected him, but eventually, we succeeded, and he re-engaged again.

Once again, the contractor insisted on stepping up the notches of his experiment, and this time he requested the authorization to place Abu Zubaydah in a confinement box, as the next stage in the force continuum. While everything I saw to this point were nowhere near the severity later listed in the [OLC] memos, the evolution of the contractor's theory, along with what I had seen till then, struck me as “borderline torture.”

As the Department of Justice IG report released last year states, I protested to my superiors in the FBI and refused to be a part of what was happening. The Director of the FBI, a man I deeply respect, agreed, passing the message that “we don't do that,” and I was pulled out….” 19

The departure of the FBI team did not give Mitchell a free hand, however. Every step of the interrogation process was coordinated with Washington, and every session was painstakingly documented. Cables began flowing from the Thai black site to CIA headquarters in Langley, Virginia, on April 13, 2002; at least 500 and likely many more would be sent from the site to headquarters during the interrogation of Abu Zubaydah. These cables were more than mere summary reports. John Kiriakou, one of the agents on Mitchell's team, told Brian Ross in a 2007 ABC news interview that the contents of the cable traffic was “extremely specific.”

Matthew Alexander 10/19/09: Why did our government not turn to experienced, competent interrogators like the FBI's George Cloonan and Ali Soufan or the Air Force's Colonel Steve Kleinman for advice? One has to question, if their intent was effective interrogations, why would they not include our nation's foremost experts on interrogations in the discussion? Instead they relied on the advice of two psychologists, neither of whom had ever conducted an interrogation.

It wasn't up to individual interrogators to decide, “Well, I'm gonna slap him. Or I'm going to shake him. Or I'm gonna make him stay up for 48 hours.” Each one of these steps, even though they're minor steps, like the attention shake, or the open-handed belly slap, each one of these had to have the approval of the Deputy Director for Operations. So before you laid a hand on him, you had to send in the cable saying, “He's uncooperative. Request permission to do X.” And that permission would come. “You're allowed to slap him one time in the belly with an open hand.” 20

It wasn't just Kirakou's superiors at CIA headquarters at the other end of those cables. Though it was taking place in an underground cell in a secret CIA prison in Thailand , Mitchell and Jessen's experiment was unfolding in full view of the President and his closest circle of advisors. Starting in the spring of 2002, then-National Security Advisor Condoleezza Rice chaired a series of meetings in the White House situation room where CIA Director George Tenet repeatedly briefed the “Principals Committee,” which included Defense Secretary Rumsfeld, Secretary of State Powell, and Attorney General John Ashcroft, on the agency's plans for Abu Zubaydah. President Bush's September 17, 2001 order had authorized the CIA to capture terrorism suspects and hold and interrogate them in clandestine prisons, but Tenet sought specific approval for its interrogations program for “high value detainees.”

The Principals had before them Mitchell and Jessen's list of 11 proposed “enhanced interrogation techniques” imported from SERE training. Rice told the Senate Armed Services Committee in 2008 that she asked the Attorney General “personally to review the legality of the proposed program,” and that she understood that the legal advice “was being coordinated by Counsel to the President Alberto Gonzales.”21 Since December, Gonzales had been chairing meetings of a group of lawyers that included David Addington, Vice President Dick Cheney's legal counsel, Jim Haynes, General Counsel of the Department of Defense, and Timothy Flanigan and John Yoo of the Office of Legal Counsel. For the group, which took to calling itself the “War Council,” “coordinating legal advice” meant more than analyzing the legality of proposals the various administration agencies submitted. Yoo, in his book War By Other Means , said the lawyers met repeatedly in late 2001 and 2002 “to develop policy in the war on terrorism.”22

David Frakt 10/19/09: In my opinion, John Yoo, and other Administration lawyers clearly overstepped their role. The function of the Office of Legal Counsel, according to their own website <http://www.usdoj.gov/olc"> is to provide "authoritative legal advice to the President and all the Executive Branch agencies." Their role is essentially a reactive one - to respond to inquiries from the Executive Branch and to review proposed legislation. To the extent that it is appropriate for lawyers like the White House Counsel and DoD General Counsel to be proactive, it should be to help steer their clients away from problematic legal areas, not guide them directly into legal minefields. What Mr. Yoo and his colleagues did was to step out of the role of legal advisor or counselor and become advocates, seeking creative ways to advance their personal agenda and pet legal theories (such as unitary executive theory) or the agenda of the White House. While advocacy is certainly an appropriate role for some government legal offices, such as DOJ trial lawyers and the Solicitor General, it was a singularly inappropriate role for this group of legal advisors to assume.

Two weeks before Abu Zubaydah was captured and disappeared into the CIA's black site, Yoo had issued a memo declaring the CIA's rendition program was legal;23 now he turned his attention to advising on Zubaydah's interrogation, which by June 2002 was entirely in Mitchell's hands. At the NSC Principals meetings, Tenet would report on the CIA team's latest sessions and relay requests to move to more aggressive methods. Yoo and his colleagues would verbally declare the proposed treatment legal. So thorough was Tenet in sharing details of the interrogation and in seeking specific permission to proceed that Ashcroft would eventually object. “Why are we talking about this in the White House?” he is widely reported to have asked after one of the meetings. “History will not judge this kindly.”24

As Mitchell progressed up the “force continuum,” however, the CIA wanted more than oral approval. In his account to the ICRC, Abu Zubaydah described a month-long lull in his questioning “about two and a half or three months” after he had arrived at the black site. That would have been late June or early July, 2002. So far, he had been subjected to prolonged shackling, dietary manipulation, incessant loud noise, and had spent weeks naked in a bare, frigid cell, but at that point had only faced one of the 11 proposed EITs, sleep deprivation. Before Mitchell could move further into physical abuse and waterboarding, CIA attorneys ordered a pause to give Yoo and the OLC time to prepare formal legal opinions declaring that methods that had been perfected by regimes that scorned the Geneva Conventions do not constitute torture. According to the CIA's Inspector General,

Eleven EITs were proposed for adoption in the CTC Interrogation Program. As proposed, use of EITs would be subject to a competent evaluation of the medical and psychological state of the detainee. The Agency eliminated one proposed technique – [REDACTED] – after learning from DoJ that this could delay the legal review. 25

That eleventh technique was evidently mock execution, a standard component of SERE training that is explicitly prohibited under the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment and under U.S. law codifying the Convention. The law specifically lists “the threat of imminent death” as an act that causes severe mental pain and suffering and is therefore criminal under the statute. But the phrase “mock execution” matches the redaction in the OIG's report exactly, and there are clear indications that CIA interrogators initially included it in their repertoire. At the Thai black site, Ali Soufan had erupted when he discovered Mitchell had constructed a coffin-shaped box for Zubaydah, calling Pasquale D'Amuro, the FBI assistant director for counterterrorism, and saying “I swear to God, I'm going to arrest these guys!” Newsweek reported that Mitchell told Soufan the box was for a “mock burial.”26

The CIA ultimately requested formal legal opinions sanctioning 10 Enhanced Interrogation Techniques: the attention grasp, walling, the facial hold, the facial or insult slap, cramped confinement, sleep deprivation, placing an insect in the confinement box, wall standing, stress positions, and waterboarding. As Yoo completed the memos, Rice personally informed Tenet that its interrogation plan could proceed as soon as the OLC issued its opinion. On July 24, the OLC told the CIA the techniques, including waterboarding, were legal and approved for use on Abu Zubaydah. That same day, the CIA delivered Mitchell's psychological assessment of Abu Zubaydah, which was to be attached to the memorandum, declaring Zubaydah physically and mentally fit for the interrogation. Eight days later, on August 1, 2002, the OLC issued two memos written by John Yoo and signed by Jay Bybee, the Assistant Attorney General, giving Mitchell the green light to treat Abu Zubaydah in ways the ICRC would later have no difficulty identifying as torture.

The first, the now-infamous Memorandum to Alberto Gonzales on “Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A,” narrows the Convention on Torture's proscriptions on acts inflicting severe physical and mental pain or suffering to the “most extreme” acts. According to the memo, severe physical pain must rise to the level “ordinarily associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions” in order to constitute torture.27 Severe mental pain or suffering can only result from the four scenarios listed in the Convention – the intentional infliction of physical pain, the administration of mind-altering drugs, the threat of imminent death, or threats that another person will be tortured or killed in the prisoners place – and then only if they result in prolonged, which is defined as lasting if not permanent mental harm.28

To commit torture, the memo suggests, an interrogator's specific intention must be to inflict serious physical or mental pain or suffering, rather than, say, to extract information. Yoo ends by suggesting possible defenses in the event a prosecutor were to disagree with the memo's radical analysis: first, that the President's complete authority in the conduct of war includes the right to ignore the Convention Against Torture; and second, that the torture was a necessary act of self defense.

The second August 1, 2002 memo, directed to John Rizzo, Acting General Counsel of the CIA, is titled “Interrogation of an al Qaeda Operative.”29 “You have asked for this Office's views on whether proposed conduct would violate the prohibition against torture found at Section 2340A of Title 18 of the United States Code,” it begins. “You have asked for this advice in the course of conducting interrogations of Abu Zubaydah….This letter memoralizes our previous advice, given on July 24, 2002 and July 26, 2002, that the proposed conduct would not violate this prohibition.” The memo summarizes the CIA's plan:

As part of this increased pressure phase, Zubaydah will have contact only with a new interrogation specialist, whom he has not met previously, and the Survival, Evasion, Resistance, Escape (“SERE”) training psychologist who has been involved with the interrogations since they began. This phase will likely last no more than several days but could last up to thirty days. In this phase, you would like to employ ten techniques that you believe will dislocate his expectations regarding the treatment he believes he will receive and encourage him to disclose the crucial information mentioned above. These ten techniques are: (1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10 the waterboard. You have informed us that the use of these techniques would be on an as-needed basis and that not all of these techniques will necessarily be used. The interrogation team would use these techniques in some combination to convince Zubaydah that the only way he can influence his surrounding environment is through cooperation. You have, however, informed us that you expect these techniques to be used in some sort of escalating fashion, culminating with the waterboard, though not necessarily ending with this technique. 30

It then proceeds one-by-one down the list, affecting a naïve, disinterested tone: “You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects,” it says at one point, and later, “Finally, you would like to use a technique called the ‘waterboard.'” It breezily dismisses concerns about the impact of each, based on the terms outlined in the “Standards for Conduct” memo:

The facial hold and attention grasp involve no physical pain. In the absence of such pain it is obvious that they cannot be said to inflict severe pain and suffering. 31

As for sleep deprivation, it is clear that depriving someone of sleep does not involve severe physical pain within the meaning of the statute. 32

Walling plainly is not a procedure calculated to disrupt profoundly the senses or personality. While walling involves what might be characterized as rough handling, it does not involve the threat of imminent death or, as discussed above, the infliction of severe physical pain. 33

Nor does the use of the boxes threaten Zubaydah with severe physical pain or suffering. While additional time spent in the boxes may be threatened, their use is not accompanied by any express threats of severe physical pain or suffering. 34

Only waterboarding poses a challenge. “We find that the use of the waterboard constitutes a threat of imminent death,” the memo concedes.

As you have explained the waterboard procedure to us, it creates in the subject the uncontrollable physiological sensation that the subject is drowning. Although the procedure will be monitored by personnel with medical training and extensive SERE school experience with this procedure who will ensure the subject's mental and physical safety, the subject is not aware of any of these precautions. From the vantage point of any reasonable person undergoing this procedure in such circumstances, he would feel as if he is drowning at very [sic] moment of the procedure due to the uncontrollable physiological sensation he is experiencing. Thus, this procedure cannot be viewed as too uncertain to satisfy the imminence requirement. Accordingly, it constitutes a treat of imminent death and fulfills the predicate act requirement under the statute. 35

But even though waterboarding simply and literally violates the prohibition on threatening death, Yoo's memo argues that it is permissible because it does not result in prolonged mental harm. “Indeed, you have advised us that the relief is almost immediate when the cloth is removed from the mouth and nose,” it observes. “In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted and the use of these procedures would not constitute torture within the meaning of the statute.”36 While acknowledging that it has just evaluated EITs individually and that their use in combination could conceivably affect their impact and produce pain or suffering, the memo concludes that the regime would only constitute torture if the interrogators actually caused severe injury or prolonged mental harm – and then only if the interrogator specifically intended to inflict severe pain or suffering.

Matthew Alexander 10/19/09: The legal memos justifying enhanced interrogation techniques (aka Torture and Abuse), never included obvious legal precedents that would have been easily retrievable through Lexus/Nexus by any novice attorney straight out of law school. For a comprehensive analysis of legal precedents establishing waterboarding as torture, read: Drop by Drop: Forgetting the History of Water Torture in U.S. Courts <http://www.columbia.edu/cu/jtl/vol_45_2_files/Wallach.pdf> by Evan Wallach.

As an interrogator and criminal investigator, I was trained to know that what is not said is often more important than what is said. The fact that flagrantly obvious, relevant legal precedents were omitted from the DOJ analysis and recommendations is evidence that the whole process was a rubber stamp for methods of torture and abuse that were already in use and that were to be continued.

With these legal assurances secured, “the real torturing started,” as Zubaydah told the ICRC. He was walled, confined in the tall box, walled again, confined in the small box, and waterboarded twice. He was confined again in a box, walled, and waterboarded some more. Zubaydah estimated that the process was repeated five times over the course of the week. In fact, he was waterboarded 82 times in August, 2002 before Mitchell and his team judged he was not concealing information. Washington , incredibly, was unconvinced. As the CIA's Inspector General recorded in his 2004 report,

According to a senior CTC officer, the interrogator team [REDACTED] considered Abu Zubaydah to be compliant and wanted to terminate EITs. [REDACTED] believed Abu Zubaydah continued to withhold information, [3 LINES REDACTED] at the time it generated substantial pressure from Headquarters to continue use of the EITs. According to this senior officer, the decision to resume use of the waterboard on Abu Zubaydah was made by senior officers of the DO[REDACTED] to assess Abu Zubaydah's compliance and witnessed the final waterboard session, after which, they reported back to Headquarters that the EITs were no longer needed on Abu Zubaydah. 37

The incident makes its way into a footnote of a May 30, 2005 memo rearguing the legality of EITs:

This is not to say that the interrogation program has worked perfectly. According to the IG Report , the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information….On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements within CIA headquarters still believed he was withholding information. [REDACTED]…At the direction of CIA Headquarters interrogators therefore used the waterboard one more time on Zubaydah. 38

Abu Zubaydah's entire five-month interrogation, including this final session of waterboarding, was videotaped. Interrogators started recording their sessions as soon as he arrived at the black site “to ensure a record of Abu Zubaydah's medical condition and treatment should he succumb to his wounds and questions arise about the medical care provided him by CIA,” the Inspector General reported. But as Mitchell's team took over, the “intense interest” at CIA Headquarters in “keeping abreast of all aspects of Abu Zubaydah's interrogation” now meant the videotapes served to document “compliance with the guidance provided to the site relative to the use of EITs.

What the tapes showed was that the sessions proceeded exactly according to plan. “There are 92 videotapes, 12 of which include EIT applications,” the IG Report noted. “An OGC attorney reviewed the videotapes in November and December 2002 to ascertain compliance with the August 2002 DoJ opinion and compare what actually happened with what was reported to Headquarters. He reported that there was no deviation from the DoJ guidance or the written record.”39

The Inspector General himself reviewed the videotapes several months later, during the investigation that culminated in his May 2004 report. He found 11 interrogation videotapes were blank; two were blank except for one or two minutes of recording; and two others were broken and could not be reviewed. When he compared the videotapes to the interrogation logs and cables, he calculated that 21 hours of interrogation, including two waterboarding sessions, were missing from the tapes.40

In November 2005, all of the tapes were destroyed.

Matthew Alexander 10/19/09: For military personnel there was never a question of the legal definitions of torture and abuse or the prohibition against them. The Army Field Manual 34-52 <http://www.fas.org/irp/doddir/army/fm34-52.pdf> (replaced in September 2006 by Army Field Manual 2-22.3) which governed interrogations stated:

"The GWS, GPS, GC, and US Policy expressly prohibit acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhuman treatment as a means of or aid to interrogation."

Hence, although arguments about the legality of CIA personnel using enhanced interrogation techniques may be argued under the DOJ legal memos, military personnel conducting interrogations were always subject to the Army Field Manual prohibitions. Therefore, within the military, any use of enhanced interrogation methods would have been a direct violation of the Army's own regulations, at a minimum.

It is interesting to note as well that the Army Field Manual also specifically listed several of the counterproductive effects of using torture and abuse. Would those who authorized and used these methods contradict our own military's conclusions regarding these negative consequences?

The American people should realize that torture and abuse was not only harmful to the prisoners who were its victims. It also cost us the lives of Americans. Al Qaida used our policy as their most effective recruiting tool and those recruits killed American soldiers in Iraq.

    Footnotes
  1. 1. International Committee of The Red Cross, “ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody,” February 2007, 28-31. The ICRC was allowed to interview the 14 in Guantánamo in early October and early December 2006
  2. 2. President George W. Bush Speech on Terrorism and High Value Detainees, September 6, 2006, available at http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?pagewanted=all
  3. 3. ICRC Report, 24
  4. 4. Sworn Statement, Kandahar Detention Facility, February 13, 2002 (http://www.aclu.org/accountability/searchdetail_report.php?r=1819&q=+%2B...)
  5. 5. United States Senate Armed Services Committee Report, “Inquiry into the Treatment of Detainees in U.S. Custody, November 20, 2008, 4. The report notes that “'Exploitation is a term the JPRA uses to describe the means by which captors use prisoners for their own tactical or strategic needs. Interrogation is only one part of the exploitation process.”
  6. 6. Senate Armed Services Committee Report, xiii
  7. 7. Senate Armed Services Committee Report, 5
  8. 8. The memorandum is available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.09.pdf
  9. 9. Senate Armed Services Committee Report, 1-2
  10. 10. Alberto Gonzales, Memorandum for the President, Memorandum re Applicability of the Geneva Convention on Prisoners of War to the Conflict With al Qaeda and the Taliban, January 25, 2002, available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.25.pdf and http://www.hereinreality.com/alberto_gonzales_torture_memo.html
  11. 11. Senate Armed Services Committee Report, 7
  12. 12. Senate Armed Services Committee Report, 9-11
  13. 13. Senate Armed Services Committee Report, 14
  14. 14. Senate Armed Services Committee Report, 21
  15. 15. Jane Mayer, in The Dark Side, 140-141. Mayer quotes a CIA source who disclosed that the CIA paid $10 million to Pakistan 's intelligence services for Zubayday's capture
  16. 16. Michael Isikoff, “We Could Have Done This the Right Way,” Newsweek , April 25, 2009
  17. 17. Testimony of Ali Soufan before the United States Senate Committee on the Judiciary, May 13, 2009
  18. 18. Soufan Judiciary Committee testimony
  19. 19. According to several published accounts, Soufan repeatedly confronted Mitchell, at one point shouting “We're the United States, and we don't do that kind of thing.” Mitchell countered that his aggressive techniques were approved by the “highest levels” in Washington, and reportedly showed Soufan a document and said the approvals were coming from Alberto Gonzales. See Michael Isikoff, “We Could Have Done This The Right Way ,” Newsweek , May 4, 2009, and Jane Mayer, The Dark Side.
  20. 20. Brian Ross interview with John Kiriakou, ABC News, December 10, 2007, available at http://abcnews.go.com/images/Blotter/brianross_kiriakou_transcript1_blotter071210.pdf
  21. 21. Senate Armed Services Committee Report, 17
  22. 22. John Yoo, War By Other Means
  23. 23. Memorandum for William J. Haynes, II, Re: The President's power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations
  24. 24. see Jane Mayer, The Dark Side , 143, and Jan Crawford Greenburg, ABC News, April 9, 2008, available at http://abcnews.go.com/print?id=4583256
  25. 25. OIG Report, “Counterterrorism Detention and Interrogation Activities, September 2001 – October 2003 (CIA Office of the Inspector General Special Review, May 7, 2004), 14
  26. 26. Michael Isikoff, “We Could Have Done This the Right Way ,” Newsweek , April 25, 2009
  27. 27. Memorandum for Alberto R. Gonzales, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A , August 1, 2002, 6
  28. 28. Memorandum for Alberto R. Gonzales, August 1, 2002, 7
  29. 29. An index of Bush-Era OLC Memoranda Relating to Interrogation, Detention, Rendition and/or Surveillance, released and still secret, is available at http://www.aclu.org/pdfs/safefree/olcmemos_2009_0305.pdf
  30. 30. Memorandum for John Rizzo, Acting General Counsel of the Center Intelligence Agency, “Interrogation of al Qaeda Operative,” August 1, 2002, 1-2
  31. 31. Memorandum for John Rizzo, August 1, 2002, 10
  32. 32. Memorandum for John Rizzo, August 1, 2002, 10
  33. 33. Memorandum for John Rizzo, August 1, 2002, 13
  34. 34. Memorandum for John Rizzo, August 1, 2002, 14
  35. 35. Memorandum for John Rizzo, August 1, 2002, 15
  36. 36. Memorandum for John Rizzo, August 1, 2002, 15
  37. 37. CIA OIG Report, May 7, 2004, 85
  38. 38. May 30, 2005 Bradbury Memorandum For John A. Rizzo 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,31
  39. 39. CIA OIG Report, 36
  40. 40. CIA OIG Report, 37

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I believe the recent

I believe the recent revelations regarding the torture of Binyam Mohamad should be added to the timeline. He was tortured in Pakistan in April and May 2002 by U.S. agents who operated on the basis of torture techniques that were the same as those described in the Bybee to Rizzo Aug. 1, 2002 Memo, as attested to by United Kingdom judges in a very recently unredacted part of an earlier ruling of theirs. This new information changes, I believe, in substantial ways our understanding of this early period of the implementation of the torture program, which appears to have been more widespread than supposed, at least so early, and possibly portraying the FBI in even a less favorable light than the Soufan narrative would suggest. See Andy Worthington's article, "UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah", Nov. 11/26/09, or my article yesterday at Firedoglake, "UK Revelations Challenge Known Torture Narrative". -- URLs are http://www.andyworthington.co.uk/2009/11/26/uk-judges-compare-binyam-moh... and http://firedoglake.com/2009/12/01/uk-revelations-challenge-known-torture... respectively

Shouldn't the date be "2002"

Shouldn't the date be "2002" not "2001"? "Eight days later, on August 1, 2001...."

 absolutely right -- it's

 absolutely right -- it's fixed, thanks!

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