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Central Intelligence AgencyInspector General

SPECIAL REVIEW

~) COUNTERTERRORISM DETENTION ANDINTERROGATION ACTIVITIES

(SEPTEMBER 2001- OCTOBER 2003)(2003-7123-1 G)

7 May 2004

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Page

INTR 0 DUCTI 0 N 1

SUMMARY ' 2

BA CK GROUND 9

D ISCU 88.!ON . ~ 11

GENESIS OF POST 9/11 AGENCY DETENTION AND iNTERROGATION

A'CTIVITIES '''!'''''''' ...11

THE CAPTURE OFABU ZUBA YDARAND DEVELOPMENT OF EITs 12

Do JLEGAL ANALYSIS ; 16

NOTICE TO AND CONSULTATION WITH EXECUTIVE AND CONGRESSIONAL

OFFICIALS ...~ .:.. "."""'" .23

GUIDANCE ON CAPTURE, DETENTION, AND INTERROGATION ~ 24

25

DCI Confinement Gui deline s 27

D CI Interrogation Guidelines ~. 29

Medical Guidelines ".""'''''''''''''''' '."" 31

Training £0r Interrogations m 31. '.

DETENTION AND INTERROGATION OPERATIONS AT

............. ..... . ........ ........ .................33

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Videotapes of Interrogations ; '."" 36

, 37

Background and Detaine es. 38..' ~~. \.':' 1#" .J:~

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Guidance Prior to DCI Guidelines 40

Specific Unauthorized or Undocumented Techniques 41

Handgun and .Power Drill ~ ~ 41Threats 42

Sm oke 43

Stress Positions , ... 44

Stiff Brush and ,Shackles .~ ~ ; 44

W aterboard Technique. ''','''''''''''''''''''''''''''' 44

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Specific Unauthorized or Undocumented Techniques 69Pressure Points 69

Mock Executions 70

Use. of Smoke 72

'U se of Col d ' 73

Water Dousing '''''''''''''''''''''''' 76

Hard T akedown 77

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Abuse at Other Locations Outside of the CTC

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ANALYTICAL SUPPORT TO INTERROGATIONS 82

EFFECTIVENESS 85

POLICY CONSIDERATIONS AND CONCERNS REGARDING THE DETENTION

AND IN'IERROGATION PROGRAM 91

Policy Considerations ...n 92

Concerns Over Participation in the CTC Program 94

ENDGAME ., : :..95

CON CL US ION S. .~ ~... 100

RECOMMEND ATIO N S '"'''''''''''''''''''' 106

APPENDICES

A. Procedures and Resources

B. Chronology of Significant Events

C. Memorandum forJohn Rizzof ActingGeneralCounselof theCentral Intelligence AgencYf Re: Interrogation of an AI-QafidaOperative, 1 August 2002

. D. DCI Guidelines on Confinement Conditions for CIA Detaineesf28 January 2003

E. DCI Guidelines on Interrogations Conducted Pursuant to the

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F. Draft Office of Medical Services Guidelines on Medical and

Psychological Support to Detainee InterrogatioI;lS,4 September2003 .

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rOFFICE OF INSPECTOR GENERAL

SPECIAL REVIEW

(~ COUNTERTERRORISM DETENTION AND. .

INTERROGATION ACTIVITIES(SEPTEMBER 2001 -OCTOBER 2003)

(2003-7123-IG)

. 7 May 2004

INTRODUCTION

. 2.. ~ In November 2002, the Deputy Director forOperations (DDO) informed the Office of Inspector General (OIG) .

. that the Agency had established a program in the CounterterroristCenter to detain and interrogate terrorists at sites abroad (litheCTCProgram"). He also informed OIG that he had iust learned of and haddisvatched a team to investigate

January 2003,the DDO informed OIG. that he had receivedallegations that Agencypersonnelhad usedunauthorized interrogation techniques with a detainee,'Abd Al~RahimAl-Nashiri, at another foreign site, and requ~sted that

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OIG investigate. Separately, OrG received information that soineemployees were concerned that certain covert Agency activities at anoverseas detention and interrogation site might involve violations ofhuman rights. In January 2003,OrG Wtiated a review of Agencycounterterrorism detention and interrogation activities-

and the incident with

Al-Nashiri.1 This Review covers the period Seeiember 2001 to mid-October 2003.2

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SUMMARY

the DCI assigned responsibility for"implementing capture and detention authority to the DDO and to theDirector of the DCI Counterterrorist Center (D/CTC). When U.S.military forces began"d~tainID~individuals in Af~hanistan and atGuantanamo Bay, Cuba,l

the Agency began to detain and interrogatedirectly a number of suspected terrorists. The capture and initialAgency "interrogation of the first high value detainee, Abu Zubaydah,

1 ~ Appendix A addresses the Procedures and Resources that OIG employed inconducting this Review. The Review does not address renditions conducted by the Agency orinterrogations conducted jointly wi e U.S. military.

2 (D) Appendix B is a chronology of significant events that occurred during the period of thisReview.

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in March 2002,presented the Agency with a significant dilemma,4The Agency was under pressure to do everything possible to preventadditional terrorist attacks. Senior Agency officialsbelieved AbuZubaydah was withholding information that could no.tbe obtainedthrough then-authorized interrogation techniques. Agency officialsbelieved that a more robust approach w~s necessary to elicit threatinformation from Abu Zubaydah and possibly from other seniorAl-Qa'ida' high value detainees. '

. 5. (~ The conduct of detention and interr~gationactivities presented new challenges for CIA. These includeddetermining where detention and interrogation facilities could besecurely located and operated, and identifying and preparingqualified personnel to manage and carry out detention andinterrogation activities. With the knowledge that AI-Qa'idapersonnel had been trained in the use of resistance techniques,another challenge was to identify interrogation techniques thatAgency personnel could lawfully use to overcome the resistance. Inthis context, CTC, with the assistance of the Office of Technical

Service (OTS), proposed certain more coercive physical techniques touse on Abu Zubaydah. All of these considerations took place againstthe backdrop of pre-September 11,2001 CIA avoidance ofinterrogations and repeated U.S. policy statements condemning'torture and advocating thehiunane treatment of polltical prisonersand detainees in the international community. .

. 6. (~ The Office of General Counsel (OGC) tookthe lead in determining and documenting the legal parameters andconstraints for interrogations. aGC conducted independent research

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4 ~ The use of "high value" or "medium value" to describe terrorist targets anddetainees in this Review is based on how they have been generally categorized by CTC. CTCdistinguishes targets according to the quality of the intelligence that they are believed likely to beable to pro,:,ide about current terrorist threats against the United States. 'Senior Al-Qa'idaplarmers and operators, such as Abu Zubaydah and Khalid Shaykh Muhammad, fall into thecategory of "high value" and are given the highest priority for capture, detention, andinterrogation. CTCcategorizes those individuals who are believed to have lesser directknowledge'of such threats, but to have information of intelligence value, as "medium value"targets Idetainees.

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and consulted extensively with Department of Justice (DoJ)andNational Security Council (NSC) legal and policystCclff.Working withDoJ's Office of Legal Counsel (OLC), OGC determined that in mostinstances relevant to the counterterrorism detention and

interrogation activities Utecriminal prohibitionagainst torture, 18 V.S.C.2340-2340B,is the controlling legal

. constraint on interrogations of detainees outSide the United States. InAugust 2002,Do}provided to the Agency a legal opinion in which itdetermined that 10 specific "Enhanced Interrogation Techniques"(EITs) would not violate the torture prohibition. This work providedthe foundation for the policy and administrative decisions that guidethe CTC Program.

7. ~ By November 2002,the Agency had AbuZubaydah and another high value detainee, 'Abd AI-RahimAI-Nashiri, in custod

and' the Office of Medical Services (OMS)provided medical care to the detainees, .

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From the beginning, OGe briefed DO officersassigned to thes~acilities on their legal authorities, and Agencypersonnel staffing these facilities documented interrogations and thecondition of detainees in cables.

10. ~ There were few instances of deviationsfrom approved procedure with onenotable exception described in this Review. With respect to twodetainees at those sites, the use and frequency of one EIT, thewaterboard, went beyond the projected use of the technique asoriginally described to DoJ. The Agency, on 29 July 2003, securedoral Do} concurrence that certain deviations are not significant forpurposes of Dol's legal opinions.

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15. ~ Agency efforts to'providesystematic,clear and timely guidance to those involved in the eTe Detention,and Interrogation Program was inadequate at first but have'

, improved considerably during the life of the Program as problemshave been identified and addressed. eTe implemented trainingprograms for interrogators and debriefers.6 Moreover, building uponoperational and legal guidance previously sent to the field, the DCI

6 ~ Before 11 September (9/11) 2001, Agency personnel sometimes used theterms interrogation/interrogatorand debriefing/debrieferinterchangeably. The use of these terms hassince evolved and, today, ere more clearly distinguishes their meanings. A debriefer engages adetainee solely through question and answer. An interrogator is a person who completes atwo-week interrogations training program, which is designed to train, qualify, and certify aperson to administer E;ITs.An interrogator can administer EITs during an interrogation of adetainee only after the field, in coordination with Headquarters, assesses the detainee as'withholding information. An interrogator transitions the detainee from a non-cooperative to acooperative phase in order that a debriefer can elicit actionable int~lligence throughnon-aggressive techniques during"debriefing sessionS. An interrogator may debrief a detaineeduring an interrogation; however, a debriefer may not interrogate a detainee.

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on 28January 2003signed "Guidelineson ConfinementConditions .

for CIA Detainees" and "Guidelines on Interr~ations ConductedPursuant

be made aware of the

guidelines and sign an acknowledgment that they have read them.The DCI Interrogation Guidelines make formal the existing CTCpractice of requiring the field to obtain specific Headquartersapprovals prior to the application of all EITs. Although the DCIGuidelines are an improvement over the absence of such DCIGuidelines in the past, they still leave substantial room formisinterpretation and do not cover all Agency detention andinterrogation activities.

16. ~ The Agency's detention and interrogationof terrorists has provided intelligence that has enabled theidentification and apprehension of other terrorists and warned ofterrorist plots planned for the United States and around the world.The CTC Program has resulted in the issuance of thousands ofindividual intelligence reports a,ld analytic products supporting theCOtmterterrorism efforts of U.S.:policymakers and militarycommanders.

17. ~ Thecu~entCTCDetentionandInterrogation Program has been subject to DoJ legal review andAdministration approval but diverges sharply from previous Agencypolicy and rules that govern interrogations by U.S. military and lawenforcement officers. Officers are concerned that public revelation ofthe CTC Program will seriously damage Agency officers' personalreputations, as well as the reputation and effectiveness of the Agencyitself.

18. ( recognized that detainees maybe held in U.S.Government custody indefinitely if appropriate lawenforcement jurisdiction is not asserted. Although there has beenongoing discussion of the issue inside the Agency and among NSC,

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19. ,~ The Agency faces potentially seriouslong-term political and legal challenges as a result of the CTC, ''Detention and Interrogation Program, particularly its use of EITs and

, the inability of the U.S.Governmentto decidewhat it will ultimatelydo with terrorists, detained by the Agency.

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, 20. ~ ThisReviewmakes a number ofrecommendations that are designed to strengthen the managementand conduct of Agency detention and interrogation activities.Although the DCI Guideliries were an important step forward, theywere only designed to address the CTC Pro~am, rather than allA2:encv debriefing or interrogation activities.

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BACKGROUND

22~ ~ The Agencyhas had intermittent involvement in theinterrogation of individuals whose interests are opposed to those ofthe United States. After the Vietnam War, Agency personnelexperienced in the field of interrogations left the Agency or moved toother assignments. In the early 1980s,a resurgence of mterest inteaching interrogation teclmiques developed as one of severalmethods to foster foreign liaison relationships. Because of politicalsensitivities the then-Deputy Director of Central Intelligence (DDCI)forbade Agency officers from using the word "interrogation." TheAgency then developed the Human Resource Exploitation (HRE).

training program designed to train foreign liaison services oninterrogation techniques.

. 23. ~ In 1984,OIG investigated allegations 6f misconduct onthe part of two Agency officerswho were involved in interrogations

. and the death of one individual

. Followingthat investigation,the Agencytook steps to ensure Agency personnel understood its policy on

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interrogations, debriefings, and human rights issues. Headquarters'sent officers to brief Stations and Bases and provided cable guidanceto the field. .

24. ~ In 1986,the Agency ended the HRE training'programbecause of allegations of human rights abuses in Latin America.

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which remains in effect, explains the Agency's general interrogationpolicy: :

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DISCUSSION

GENESIS OFPOST 9/11 AGENCY DETENITON AND INTERROGATION

ACTIVITIES

25. ~ The statutorY basis for CIA's invill detentions and interrogations is -

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27. ~. The DCI delegated responsibility forimplementation to the DDO and D fCTC. Over timefCTC also solicited ass.' ce from other Agency components,illcludillg OGCf OMS and OTS.

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7 (D/ /FOUO) DoJ takes the position that as Commander-in-Chief, the President independentlyhas the Article II constirutional authority to order the detention and interrogation of enemycombatants to gain intelligence information.S

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acc researched, analyze.d,'andwrote "draft" papers on multiple legal issues. These includeddiscussions of the

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THE CAPTURE OF ABU ZUBA YDAR AND DEVELOPMENT OF EITs. .

30. ~ The capture of senior Al-Qa'ida operativeAbu Zubaydah on 27 March 2002presented the Agency with theopportunity to obtain actionable intelligence on future threats to theUnited States from the most senior Al-Qa'ida member in U.S.custody

at that time. This accelerated CIA's development of an interroiationprogram

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31. ~ To treat the severe wOlUldsthat AbuZubaydah suffered upon his capture, the Agency provIded himintensive medical care from the outset and deferred his questioningfor several weeks pending his recovery. The Agency then assembleda team that interrogated Abu Zubaydah using non-aggressive,non-physical elicitation techrrlques.

The Agency believed that Abu Zubaydahwas withhold~g immli1ent threat information.

. 32. ~) Several months earlier, in late 2001, CIAhad tasked an independent contractor psychologist, who had._experience in the U:S.Air Force's Survival, Evasion,.~ce, and Escape (SERE)training program, to research and .

write a paper on Al-Qa'ida's resistance to interrogation techniques.13This psychologist collaborated with a Deparbnent of Defense (DoD)'psychologist who had_SERE experience in the U.S. AirForce and DoD to pro~per, "Recognizingand DevelopingCountermeasures to Al-Qa'ida Resistance to InterrogationTechniques: A Resistance Trainmg Perspective." Subsequently, thetwo psychologists developed a list of riew and more aggressive EITsthat they recommended for use in interrogations.

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13 (D((FOUO) The SERE.training program falls W1derthe DoDJoint Personnel RecoveryAgency (JPRA). JPRA is r~sponsible for missions to include the training for SEREand Prisoner ofWar and Missing In Action operational affairs including repatriation. SERETraining is offeredby the U.S. Army, Navy, and Air Force to its personnel, partiCularly air crews and specialoperations forces wh~ are of greatest risk of being captured during military operations. SEREstudents are taught how to survive in vcujous terrain, evade and endure captivity, resistinterrogations, and conduct themselves to prevent harm to themselves and fellow prisoners ofwar.

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33. ~ CIA's OTSobtained data on the use of theproposed EITs and their potential long-term psychological effects on ,

, detainees. OTS input was based in part on information solicited froma number .ofpsychologists and knowledgeable academics in the areaof psychopathology.

34. ~ OTS also solicited input from DaD/JointPersonnel Recovery Agency (JPRA)regarding techniques used in itsSERE training and any subsequent psychological effects on students.DaD /JPRA concluded no long-term psychological effects resulted'from use of the BITs, induding the most taxing technique, thewaterboard, on SEREswdents.14 The OTSanalysis was used by aGCin evaluating the legality of techniques.

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35. ~ Eleven EITs were proposed for adoptionin the CTC Interrogation Program. As proposed, use of EITswould,be subject to a competent evaluation of the medical and psychologicalstate of the detainee. The Agency eliminated one proposed'techniqu after learnirig from DoJ that this coulddelay the leg review. e following textbox identifies the 10 EITsthe Agency described to DoJ.

14~ According to individuals with authoritative knowledge of the SEREprogram, thewaterboard was used for demonstration purposes on a very small number of students :ina class.Except for Navy SERE training, use of the waterboard was discontinued because of its dramaticeffect on the students who were subjects.

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--""~ -EnhancedInterrogationTechniques

t The attention grasp consists of grasping the detainee with both hands, with onehand on each side of the collar opening, in a controlled and quick motion. In thesame motion as the grasp, the detainee is drawn toward the interrogator.

. During the walling teclmique, the detainee is pulled forward and then quickly and.firmly pushed into a flexible false wall so that his shoulder blades hit the wall. Hishead and neck are supported with a rolled towel to prevent whiplash.

+ The facial hold is used to hold the detainee's head immobile. The interrogatorplaces an open palm on either side of the detainee's face and the interrogator'sfingertips are kept well away from the detainee's eyes.

+ With the facial or insult slap, the fingers are slightly spread apart. Theinterrogator's hand makes contact with the area between the tip of the detainee'schin and the bottom of the corresponding earlobe.

. In cramped confinement, the detainee is placed in a confined space, typically asmall or large box, which is usually dark. Confinement in the smaller space lastsno more than two hours and in the larger space it can last up to 18hours.

. Insects placed in a confinement box involve placing a harmless insect in the boxwith the detainee.

. During wall standing, the detainee may stand about 4 to 5 feet from a wall withhis feet spread approximately to his shoulder width. His arms are stretched out infront of him and his fingers rest on the wall to support all of his body weight. Thedetainee is not allowed to reposition his hands or feet.

. The application of stress positions may include having the detainee sit on the floorwith his legs extended straight out in front of him with his arms raised above hishead or kneeling on the floor while leaning back at a 45 degree angle.

t Sleep deprivation will not exceed 11 days at a time.

. The application of the waterboard technique involves binding the detainee to abench with his feet elevated above his head. The detainee's head is immobilized

and an interrogator places a cloth over the detainee's mouth and nose whilepouring water onto the cloth in a controlled manner. Airflow is restricted for 20to40 seconds and the technique produces the sensation of drowning and suffocation.

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Do J LEGAL ANALYSIS

. . 36. ~ CIA's OGC sought guidance from DoJreltarding the legal bounds of EITsvis-a-vis individuals detained

The ensumg legal opinions focus onthe Convention Against Torture and Other Cruel, Inhumane andDegrading Treatment or Punishment (Torture Convention),15especially as implemented in the U.s. criminal code, 1.8D.S.C.2340-2340A.

37. (U IIFODO) The Torture Convention specifically prohibits"torture," which it defines in Article 1 as: .

. any act by which severepain or suffering, whether physical ormental, is intentionally inflicted on a person for such purposes asobtaining from him or a third person information or a confession,punishing him for an act he or a third person has committed or issuspected of having committed, or intimidating or coercing him ora third person, or for any reason based on discrimination of any.kind, when such pain or suffering is inflicted by or at theinstigati?n of or with the consent or acquiescence of a public officialor other person acting in an official capacity. It does not inclu~epain or suffering arising only from, inherent in or incidental tolawful sanction. [Emphasis added.]

Article 4 of the Torture Convention provIdes that states party to theConvention are to ensure that all acts of "tortUIe" are offenses illlder

their criminal laws. Article 16 additionally provides that each stateparty "shall undertake to prevent in any territory under itsjurisdiction other acts of cruel, inhuman or degrading treatment orpunishment which do not amount to acts of torture as defined inArticle 1."

15 (U / /FOUO) Adopted 10 December 1984,S.Treaty Doc;No. 100-20(1988)1465V.N.T.S. 85(entered into force 26 June 1987). The Torture Convention entered into force for the United States

. on 20November1994.

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38. (VIIFOVO) The Torture Convention applies to the UnitedStates only in accordance with the reservations and understandingsmade by the United States at the time of ratification.16As explainedto the Senate by the Executive Branch prior to ratification:

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Article 16 is arguably broader than existing U.S. law. The phrase"cruel, inhuman or degrading treatment or p'unishrnent" is astandard formula in international instruments and is found in the

Universal Declaration of Human Rights, the International Covenant. on Civil and Political Rights, and the European ConventiononHuman Rights. To the extent the phrase has been interpreted in thecontext of those agreements, "cruel"and "inhuman" treatment orpunishment appears to be roughly equivalent to the treatment orpunishment barred in the United States by the Fifth, Eighth andFourteenth Amendments. "Degrading" treatment or punishment,.however, has been interpreted as potentially including treatmentthat would probably not be prohibited by the U.S. Constitution.'[Citing a ruling that German refusal to recognize individual'sgender change might be considered "degrading" treatment.] Tomake clear that the United States construes the phrase to becoextensivewith its constitutionalguaranteesagainstcruel, .

uTIusual; and inhumane treatment, the following understanding isrecommended:

"The United States understands the term 'cruel, inhuman or

degrading treatment or punishment,' as u'sed in Article 16 ofthe Convention, to mean the cruel, unusual, and inhumane.

treatment or punishment prohibited by the Fifth, Eightharid/ or Fourteenth Amendments to the Constitution of the

United States."17 [Emphasis added.]

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16 (U) Vielma Convention on the Law ofTreaties, 23 May 1969,1155U.N.T.S.331(entered intoforce 27 January 1980). The United States isnot a party to the Vienna Convention on treaties, butit generally regards its provisions as customary intemationallaw. .

17 (U/ /FOUO) S. Treaty Doc. No. 100-20,at 15-16.

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39. (U/ /FOUO) In accordancewith the Convention,theUnited States crinrinalized acts of torture in 18V.S.C.2340A(a),which provides as follows:

Whoever outside the United States commits or attempts to committorture shall be fined under this title or imprisoned not more than20 years, or both, and if death results to any person from conductprohibited by this subsection, shall be punished by death orimprisoned for any term of years or for life.

The statute adopts the Convention definition of "torture" as "an actconunitted by a person acting under the color of law specificallyintended to inflict severe physical or mental pain or suffering (otherthan pam or suffering incidental to lawful sanctions) upon anotherperson within his custody or physical contro1.1118"Severephysicalpain and suffering" is not further defined, but Congress added C).

definition of "severe mental pain or suffering:"

[T]he prolonged mental harm caused by or resulting from-

(A) the mtentional infliction or threatened infliction of severephysical pain or sufferingi .

(B) the administration or application, or threatenedadministration or application, of mind-altering substances orother procedures calculated to disrupt profoundly the senses orthe p€rsonalityi

(C) the threat of imminent deathi or

(D) the threat that another person will imminently be subjectedto death, severe physical pain or suffering, or the administrationor application of mind-altering substances or other procedurescalculated to disrupt profoundly the senses or personality. . . .19

These statutory definitions are consistent with the understandingsand reservations of the United States to the Torture Convention.

18 (UIIFOUO) 18 D.S.C. 2340(1).

19 (Ol/FOOO) 18 U.s.e. 2340(2).

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40. (U/ /FOUO) DoJhas never prosecuted a violation of thetorture statute, 18 U.S.C. §2340,and there is no case law construingits provisions. OGC presented the results of its research into relevantissues under U.S. and intemationallaw to DoI's otc in,the summerof 2002 and received a preliminary summary of the elements of thetorture statute from OLC in July 2002. An imclassified 1August 2002OLC legal memorandum set out OLC's conclusions regarding theproper :interpretation of the torture statute and concluded that"Section 2340Aproscribes acts inflicting, and that are specificallyintended to inflict, severe pain or suffering whether mental'orphysica1."20 Also, OLC stated that the acts must be of an "extreme

'nature" and that "certain acts may be cruel, inhuman, or degrading,but still not produce pain'and suffering of the requisite intensity tofall within Section 2340A'sproscription against torture." Further

, ~escribing the requisite level of futended pain, OLC stated:

Physical pain amqunting to torture must be equivalent in intensityto the pain accompanying serious physical injury, such as organfailure, impairment of bodily function, or even death. For purelymental pain or suffering to amount to torture under Section 2340,itmust result in significant psychological harm of significant'duration, e.g., lasting for months or even years.21

OLC determined that a violation of Section 2340 requires that the:infliction of severe pain be the defendant's "precise objective." OLCalso concluded that necessity or self-defense might justify , '

interrogation methods that would otherwise violate Section 2340A.22The August 2002 OLC opinion did not address whether any otherprovisions of U.S. law are relevant to the detention, treatment, andinterrogation of detainees outside the United States.23

20 (DI I FODO) Legal Memorandum, Re: S~andards of Conduct for Interrogation under18 U.S.c. 2340-2340A(1 August 2002).

21 (DI I FOUO) Ibid.,p. 1.

22 (VIIFOUO) Ibid., p. 39.

23 (VI I FOUO) Ole's analysis of the torture statute was guided in part by judicial decisionsunder the Torture Victims Protection Act (TVPA) 28 U.S.c. 1350,which provides a tort remedyfor victims of torture. OLC noted that the courts in this context have looked at the entire course

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41. (U / /FODO) A second llllc1assified1 August 2002OLCopinion addressed the international law aspects of suchinterrogations.24 This opinion concluded that interrogation methodsthat do not violate 18 V.S.C. 2340 would not violate the Torture

Convention and would not come withID the jurisdiction of theInternational Criminal Court.

42. ~ In addition to the two unclassifiedopinions, OLC produced another legal opinion on 1 August 2002 atthe request of CIA.25 (Appendix C:) This opinion, addressed toCIA's Acting General Counsel, discussed whether the proposed useof EITs in interrogating Abu Zubaydah would violate the Title 18prohibition on torture. The opinion concluded that use of EITs onAbu Zubaydah would not violate the torture statute because, amongother. things, Agency personnel: (1) would not specifically intend toinflict severe pain or suffering, and (2) would not in fact inflict severepain or suffering.

43. ~ This OLC opinion was based uponspecific representations by CIA concerning the manner in which EITswould be applied in the interrogation of Abu Zubaydah. Forexample, OLC was told that the EIT "phase" would likely last "nomore than several days but could last up to thirty days." The EITswould be used on "an as-needed basis" and all would not necessarilybe used. Further, the EITswere expected to be used "in some sort ofescalating fashion, culminating with the waterboard though notnecessarily ending with this technique." Although some of the EITs

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of conduct, although a single incident could constitute torture. OLC also noted that courts maybe willing to find a wide range of physical pain can rise to the level of "severe pain andsuffering." Ultimately, however, OLC concluded that the cases show that only acts "ofanextreme nature have been redressed under the TVPA';; civil remedy for torture." White HouseCounsel Memorandum at 22 - 27. .

24 (U I IFODO) OLC Opinion by John C. Yoo, Deputy Assistant Attorney General, OLC. (1 Augt1£>t2002). .

25 ~ Memorandum for John Rizzo, Acting General Counsel of the CentralIntelligence Agency, ."Interrogation of al Qaida Operative" (1 August 2002)at 15.

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might be used more than once, "that repetition will not be substantialbecause the techniques generally lose their effectivenessafter severalrepetitions." With respect to the waterboard, it was explained that:

. . . the individual is bound securely to an inclined bench. . .. Theindividual's feet are generally elevated. A cloth is placed over theforehead and eyes. Water islhen applied to the cloth in acontrolled manner. As this is done, the cloth is lowered until itcovers both the nose and mouth. Once the cloth is saturated andcompletely covers the mouth and nose, the air flow is slightlyrestricted for 20 to 40 seconds due to the presence of the cloth. Thiscauses an increase in carbon dioxige level in the individual's blood.This increase in the carbon dioxide level stimulates increased effort

to breathe. This effort plus' the cloth produces the perception of"suffocation and incipient panic," Le.,the perception of drowning.The individual does not breathe water into his lungs. During those20 to 40 seconds, water is continuously applied from a height of [12to 24] inches. After this period, the cloth is lifted, and theindividual is allowed to breathe unimpeded for three or four fullbreaths. The sensation of drowning is immediately relieved by theremoval of the cloth. The procedure may then be repeated. Thewater is usually applied £rom a canteen cup or small watering canwith a spout. . .. [T]hisprocedure triggers an automaticphysiological sensation of drowning that the individual cannotcontrol even though he may be aware that he is in fact notdrowning. [I]t is likely that this procedure would not last morethan 20 minutes in anyone application.

Finally, the Agency presented OLC with a psychological profile ofAbu Zubaydah and with the conclusions of officialsandpsychologists associated with the SEREprogram that ~e use of EITswould cause no long term mental harm. OLC relied on theserepresentations to support its conclusion that no physical harm orprolonged mental harm would result from the use on him of the .

EITs, including the waterboard.26

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26 'hs.L- According to the Chief, Medical Services,OMSwas neither consulted norinvolved in the .initialanalysis of the risk and benefits of EITs,nor provided with the OTS reportcited in the OLC opinion. In retrospect, based on the OLC extracts of the OTS rep9rt, OMScontends that the reported sophistication of the preliminary BITreview was exaggerated, at leastas it related to the waterboard, and that the power of this EIT was appreciably overstated in thereport. Furthermore, OMS contends that the expertise of the SEREpsychologist/interrogators onv.

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44. (~ OGC continued to consult with DoJ as theCTC Interrogation Program and the use of EITsexpanded beyond theinterrogation of Abu Zubaydah. This resulted in the production ofan undated and unsigned ,document entitled, "LegalPrinciplesApplicable to CIA Detention and Interrogation of CapturedAl-Qa'ida Personne1.1127According to OGC, this analysis was fullycoordinated with and drafted ITisubstantial part by OLC. In additiohtO'reaffirming the previous conclusions regarding the torture statute, '

the analysis concludes that the federal War Crimes statute, 18 D.S.C.2441, does not apply to'Al-Qa'ida because members of that group arenot entitled to prisoner of war status. The analysis adds that "the[Torture] Convention permits the use of [cruel, inhuman, ordegrading treatment] in exigent circumstances, such as a nationalemergency or war.11 It also states that the interrogationof Al-Qa'idamembers does not violate the Fifth and Fourteenth Amendments

because those provisions do not apply extraterritorially, nor does itviolate the Eighth Amendment because it only applies to personsupon whom criminal sanctions have been imposed. Finally, theanalysis states that a wide range of EITs and other techniques wouldnot constitute conduct of the type that would be prohibited by the '

Fifth, Eighth, or Fourteenth Amendments even were they to beapplicable:

The use of the following techniques and of comparable, approvedtechiUques does not violate a.nyFederal statute or other law, wherethe CIA interrogators do not specifically intend to cause thedetainee to tmdergo severe physical or mental pain or suffering(I.e., they act with the good faith belief that their conduct will notcause such pain or suffering): isolation, reduced caloric intake (solong as the amount is calculated to maintain the general health ofthe detainees), deprivation of reading material, loud music or white

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the waterboard was probably misrepresented at the time, as the SEREwaterboard experience isso different from the subsequent Agency usage as to make it almost irrelevant. Consequently,according to OMS, there was no a priori reason to believe that applying the waterboard with thefrequency and intensity with which it was used by the psychologist/interrogators was eitherefficacious or medically safe.

27 ~ "Legal Principles Applicable to CIA Detention and Interrogation ofCaptured AI-Qa'idaPersonnel,"attached to 16June2003).

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noise (at a decibel level calculated to avoid damage to thedetainees' hearing), the attention grasp, walling, the facial hold, thefacial slap (insult slap), the abdominal slap, cramped confinement,wall standing, stress positions, sleep deprivation, the use ofdiapers, the use of harmless insects, and the water board.

According to OGCf this analysis embodies Do} agreement that thereasoning of the classified 1 August 2002 OLC opinion extendsbeyond the interrogation of Abu Zubaydah and the conditions thatwere specified in that opinion. -

NOTICE TO AND CONSULTATION WITII EXECUTIVE AND CONGRESSIONAL

0 FFICIALS

46. (~ In early 2003fCIA officialsfat the urgingof the General Counset continued to inform senior Administration

officials and the leadership of the Congressional OversightCommittees of the then-current status of the CTC Program. TheAgency specifically wanted to ensure that these officials and theCommittees continued to be aware of and approve CIA's actions.The General Counsel recalls that he spoke and met with White HouseCounsel and others at the NSCf as well as Dol's Criminal Division

and Office of Legal Counsel begirming in December 2002 and briefedthem on the scope and breadth of the CTCfs Detention andInterrogation Program.

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47. ~ Representatives of the DOf in thepresence of the DireCtor of Congressional Affairs and the GeneralCounset continued to brief the leadership of the IntelligenceOversight Committees on the use of EITsand detentions ill February

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