The Senate Intelligence Committee Report on Torture: Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (27 page)

Shortly after the September 2007 extension, CIA personnel were directed to stop the use of the CIA’s enhanced interrogation techniques on Rahim. Rahim was then left in his cell with minimal contact with CIA personnel for approximately six weeks.
1016
On September 10, 2007, Rahim’s interrogators reported to CIA Headquarters that Rahim had “demonstrated that the physical collective measures available to HVDIs
1017
have become predictable and bearable.”
1018
The use of the CIA’s enhanced interrogation techniques on Rahim resumed on November 2, 2007, with a sleep deprivation session that lasted until November 8, 2007, for a total of 138.5 hours. This sleep deprivation session, the longest to which Rahim had been subjected, was his eighth and final session. Rahim was also subjected to dietary manipulation during this period.
1019

According to CIA records, intermittent questioning of Rahim continued until December 9, 2007, when all questioning of Rahim ceased for nearly three weeks. During this time, CIA detention site personnel discussed and proposed new ways to encourage Rahim’s cooperation. These new proposals included suggestions that Rahim could be told that audiotapes of his interrogations might be passed to his family, or that
██████████████████████████████████████████████████████
Rahim was cooperating with U.S. forces. On December 18, 2007, CIA Headquarters directed the detention site to stand down on the proposals.
1020

The CIA’s detention and interrogation of Mohammad Rahim resulted in no disseminated intelligence reports.
1021
On March ██, 2008, Muhammad Rahim was █████ by the CIA to
████████████
, where
████████
took custody of Rahim. The █████ government immediately transferred Rahim to the custody of ██████, at which point Rahim was transferred back to CIA custody and rendered by the CIA to U.S. military custody at Guantanamo Bay.
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6. CIA After-Action Review of Rahim Interrogation Calls for Study of Effectiveness of Interrogation Techniques and Recommends Greater Use of Rapport-Building Techniques in Future CIA Interrogations

On April 21, 2008, and April 22, 2008, the CIA’s RDG convened an after-action review of the CIA’s interrogation of Muhammad Rahim. According to summary documents, the CIA review panel attempted to determine why the CIA had been unsuccessful in acquiring useful information from Rahim. The summary documents emphasized that the primary factors that contributed to Rahim’s unresponsiveness were the interrogation team’s lack of knowledge of Rahim, the decision to use the CIA’s enhanced interrogation techniques immediately after the short “neutral probe” and subsequent isolation period, the lack of clarity about whether the non-coercive techniques described in the Army Field Manual were permitted, the team’s inability to confront Rahim with incriminating evidence, and the use of multiple improvised interrogation approaches despite the lack of any indication that these approaches might be effective.
1023
The summary documents recommended that future CIA interrogations should incorporate rapport-building techniques, social interaction, loss of predictability, and deception to a greater extent.
1024
The documents also recommended that the CIA conduct a survey of interrogation techniques used by other U.S. government agencies and other countries in an effort to develop effective interrogation methods.
1025

Muhammad Rahim was the last CIA detainee in the CIA’s Detention and Interrogation Program.
1026

7. CIA Contracting Expenses Related to Company Formed by SWIGERT and DUNBAR

CIA contractors SWIGERT and DUNBAR, who played a central role in the development of the CIA’s enhanced interrogation techniques in the summer of 2002, and then used the techniques as contract interrogators, formed a company in 2005
████
[“Company Y”].
1027
In addition to providing interrogators for the CIA’s interrogation program, Company Y was granted a sole source contract to provide operational psychologists, debriefers, and security personnel at CIA detention sites.
1028
Under the contract, Company Y was tasked with conducting ongoing conversations with CIA detainees to learn about the terrorist mind set (this project was named the “Terrorist Think Tank” or “T
3
”), developing ███████ strategies, and writing the history of the CIA’s Detention and Interrogation Program.
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Later descriptions of their services note that—on behalf of the CIA—Company Y officers participated in the interrogations of detainees held in foreign government custody and served as intermediaries between entities of those governments and the CIA.
1030

By 2006, the value of the base contract for their company, with all options exercised, was in excess of $180 million.
1031
As of May 2007, Company Y had hired ███ former CIA staff officers, many of whom had previously been involved with the CIA’s Detention and Interrogation Program. Company Y’s chief operating officer was the former chief of
████████████
, the division of the CIA supervising the Renditions and Detention Group. In addition, Company Y hired at least
██
CIA security protective officers to work on Company Y’s CIA contracts. In March 2006, a list of projected staff and contractors within CIA’s Renditions and Detention Group included
███
separate positions.
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Of those
███
positions,
███
[73%] were for contractors, the majority of whom were contractors from Company Y.
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By June 2007, RDG reported having ██ staff officers and █████ contractors.
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By 2008, RDG had a total of ███ positions, with ██ staff officers and ███ [85%] contractors, according to the CIA.
1035

The CIA’s contract with Company Y was terminated in mid-2009. From the time of the company’s creation in 2005 through the close-out of its contract in 2010, the CIA paid Company Y more than $75 million for services in conjunction with the CIA’s Detention and Interrogation Program.
1036
The CIA also certified Company Y’s office in
███████████████
, as a Secure Compartmented Information Facility (SCIF), which required a CIA officer to be detailed to
█████
, and provided Company Y access to CIA internal computer networks at its facility. In 2008, the CIA authorized an additional payment to Company Y of approximately $570,000, after Company Y indicated that it had incurred costs for conducting countersurveillance of its officers when
████████████████
appeared in the press in conjunction with the program. The CIA agreed to a $5 million indemnification contract for the company that covered, among other expenses, criminal prosecution.
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Company Y hired a prominent ████████ law firm for representation in 2007,
1038
and billed the CIA $1.1 million for legal expenses from 2007 through 2012 per its indemnification agreement.
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Part of these expenses included legal presentation at a Committee staff briefing by SWIGERT and DUNBAR on November ██, 2008.
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Under the CIA’s indemnification contract, the CIA is obligated to pay Company Y’s legal expenses through 2021.
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8. The CIA’s Detention and Interrogation Program Ends

On December 5, 2007, fewer than nine months after Director Hayden told the European Union that the CIA’s Detention and Interrogation Program was not a CIA program, but “America’s program,” the House-Senate conference for the Fiscal Year 2008 Intelligence Authorization Act voted to include an amendment that banned coercive interrogation techniques and established the Army Field Manual on Human Intelligence Collector Operations as the interrogation standard for all U.S. government interrogations.
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The conference report passed both the House and the Senate with bipartisan majorities.
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On March 8, 2008, President Bush vetoed the Intelligence Authorization Act for Fiscal Year 2008 that banned coercive interrogations. In a radio address explaining the decision, the president stated “[t]he bill Congress sent me would take away one of the most valuable tools in the war on terror—the CIA program to detain and question key terrorist leaders and operatives.” Addressing the use of the CIA’s enhanced interrogation techniques, President Bush stated that the “main reason” the CIA program “has been effective is that it allows the CIA to use specialized interrogation procedures to question a small number of the most dangerous terrorists under careful supervision.” The president stated that the CIA program had a “proven track record,” and that the CIA obtained “critical intelligence” as a result of the CIA’s enhanced interrogation techniques related to the Camp Lemonier plotting, the Karachi plotting, the Second Wave plotting, and the Heathrow Airport plotting. The president then repeated a warning the CIA had previously provided to the White House, that to “restrict the CIA to [interrogation] methods in the [Army] Field Manual,” “could cost American lives.”
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As is described in this summary, and detailed more extensively in the full Committee Study, the CIA’s representations to the White House regarding the role of the CIA’s enhanced interrogation techniques in the thwarting of the referenced plots were inaccurate.

On March 11, 2008, by a vote of 225–188, the House of Representatives failed to override the presidential veto.
1045

In December 2008 and January 2009, CIA officers briefed the transition team for President-elect Barack Obama on the CIA’s Detention and Interrogation Program. CIA Director Hayden prepared a statement that relayed, “despite what you have heard or read in a variety of public fora, these [enhanced interrogation] techniques and this program did work.”
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The prepared materials included inaccurate information on the operation and management of the CIA’s Detention and Interrogation Program, as well as the same set of examples of the “effectiveness” of the CIA’s enhanced interrogation techniques that the CIA had provided to policymakers over several years.
1047
The examples provided were nearly entirely inaccurate.

On January 22, 2009, President Obama issued Executive Order 13491, which required the CIA to “close as expeditiously as possible any detention facilities that it currently operates and . . . not operate any such detention facility in the future.” The Executive Order prohibited any U.S. government employee from using interrogation techniques other than those in the Army Field Manual 2-22.3 on Human Intelligence Collector Operations.
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A. Background on CIA Effectiveness Representations

From 2002 through 2009, in order to obtain policy authorizations and legal approvals, the CIA made a series of representations to officials at the White House,
1049
the Department of Justice, and the Congress, asserting that the CIA’s enhanced interrogation techniques were uniquely effective and necessary to produce otherwise unavailable intelligence that the U.S. government could not obtain from other sources.
1050
The CIA further represented that the CIA’s enhanced interrogation techniques “saved lives” and “enabled the CIA to disrupt terrorist plots, capture additional terrorists, and collect a high volume of critical intelligence on al-Qa’ida.”
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The Department of Justice used these representations of effectiveness to assess whether the CIA’s enhanced interrogation techniques were legal;
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policymakers at the White House used these representations—and the legal analysis by the Department of Justice—to assess whether the CIA interrogation program should be approved as a matter of policy;
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and members of Congress relied on the CIA representations in overseeing and assessing the program, providing funding, and crafting related legislation.
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In CIA presentations to the executive and legislative branches, the CIA represented that other parties had consented to, or endorsed, the CIA’s interrogation program. As an example, during a policy review of the CIA’s enhanced interrogation techniques in July 2003, the CIA informed a subset of the National Security Council principals that the use of the CIA’s enhanced interrogation techniques was “approved by the attorney general,” and was “fully disclosed to the SSCI and HPSCI leadership.” In the same presentation, the CIA represented that the CIA interrogation program “had produced significant intelligence information that had, in the view of CIA professionals, saved lives.” The CIA then provided examples of “attacks averted” as a direct result of the CIA interrogation program, and warned policymakers that “[t]ermination of this program will resultin loss of life, possibly extensive.”
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When the CIA was asked by White House officials to review and provide further evidence for the effectiveness of the CIA’s enhanced interrogation techniques in 2004, the CIA responded that it was “difficult, if not impossible” to conduct such a review, but assured White House officials that “this program works,” “the techniques are effective,” and the program produces “results.”
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The “results” provided by the CIA consisted of the “disruption” of specific terrorist plots and the capture of specific terrorists. The CIA further represented that the information acquired as a result of the CIA’s enhanced interrogation techniques was unique and “otherwise unavailable.”
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These specific CIA claims played an especially important role in the Department of Justice’s legal review of the CIA’s enhanced interrogation techniques.
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Department of Justice documents stated that an analysis of the legality of the CIA’s enhanced interrogation techniques was a “highly context-specific, fact-dependent question” and highlighted the importance of the CIA representation that the CIA’s enhanced interrogation techniques produced “substantial quantities of otherwise unavailable actionable intelligence,” and were “largely responsible for preventing a subsequent attack within the United States.”
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B. Past Efforts to Review the Effectiveness of the CIA’s Enhanced Interrogation Techniques

During the period in which the CIA’s Detention and Interrogation Program was operational, from 2002 to 2009, there were three reviews that addressed the effectiveness of the CIA’s enhanced interrogation techniques: (1) the CIA Office of Inspector General Special Review, released in May 2004; (2) an internal review conducted by two senior CIA officers in 2004; and (3) a 2005 “Blue Ribbon” panel consisting of two individuals not employed by the CIA. According to CIA records, as of the spring of 2007, the CIA had not “conducted any other studies on the effectiveness of interrogation techniques.”
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Each of the previous reviews relied on interviews with CIA personnel involved in the program, as well as documents prepared by CIA personnel, which represented that the CIA interrogation program was effective, and that the use of the CIA’s enhanced interrogation techniques had “enabled the CIA to disrupt terrorist plots, capture additional terrorists, and collect a high-volume of critical intelligence on al-Qa’ida.”
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CIA personnel represented: “[t]his is information that CTC could not have gotten any other way.”
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There are no indications in CIA records that any of the past reviews attempted to independently validate the intelligence claims related to the CIA’s use of its enhanced interrogation techniques that were presented by CIA personnel in interviews and in documents. As such, no previous review confirmed whether the specific intelligence cited by the CIA was acquired from a CIA detainee during or after being subjected to the CIA’s enhanced interrogation techniques, or if the intelligence acquired was otherwise unknown to the United States government (“otherwise unavailable”), and therefore uniquely valuable.

C. The Origins of CIA Representations Regarding the Effectiveness of the CIA’s Enhanced Interrogation Techniques as Having “Saved Lives,” “Thwarted Plots,” and “Captured Terrorists”

Before the CIA took custody of its first detainee, CIA attorneys researched the limits of coercive interrogations and the legal definitions of torture. On November 26, 2001, CIA Office of General Counsel (OGC) attorneys circulated a draft legal memorandum entitled “Hostile Interrogations: Legal Considerations for CIA Officers.”
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The memorandum listed interrogation techniques considered to be torture by a foreign government and a specific nongovernmental organization, including “cold torture,” “forced positions,” “enforced physical exhaustion,” “sensory deprivation,” “perceptual deprivation,” “social deprivation,” “threats and humiliation,” “conditioning techniques,” and “deprivation of sleep.”
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The draft memorandum described various prohibitions on torture and the potential use of “necessity” as a legal defense against charges of torture, stating:

“[i]t would, therefore, be a novel application of the
necessity
defense to avoid prosecution of U.S. officials who tortured to obtain information that
saved
many lives
. . . A policy decision must be made with regard to U.S. use of torture in light of our obligations under international law, with consideration given to the circumstances and to international opinion on our current campaign against terrorism—states may be very unwilling to call the U.S. to task for torture when it resulted in
saving thousands of lives
.”
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On February 1, 2002, a CTC attorney researched the impact of the application of the Geneva Conventions (GC) on future CIA interrogation activities.
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The attorney wrote:

“If the detainee is a POW and enjoys GC coverage, then the optic becomes how legally defensible is a particular act that probably violates the convention, but ultimately saves lives. I believe that [a named CIA attorney]’s papers reflecting on
necessity and anticipatory self defense
are the two most obvious defenses available.”
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The Department of Justice Office of Legal Counsel (OLC) included the “necessity defense” in its August 1, 2002, memorandum to the White House Counsel, determining, among other things, that “under the current circumstances, necessity or self-defense may justify interrogation methods that might violate” the criminal prohibition against torture.
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The OLC memorandum states:

“It appears to us that under the current circumstances the
necessity defense
could be successfully maintained in response to an allegation of a Section 2340A violation . . . Under these circumstances, a detainee may possess information that could enable the United States to prevent attacks that potentially could equal or surpass the September 11 attacks in their magnitude. Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives.”
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According to a report by the Department of Justice Office of Professional Responsibility (OPR), released in July 2009, Deputy Assistant Attorney General John Yoo “acknowledged that the CIA may have indirectly suggested the new sections [related to Commander-in-Chief authority and possible defenses, including the necessity defense] by asking him what would happen in a case where an interrogator went ‘over the line’ and inadvertently violated the statute.” Yoo also told the OPR that he drafted those relevant sections. Another senior Department of Justice lawyer at the time, Patrick Philbin, informed the OPR that when he told Yoo that the sections were superfluous and should be removed, Yoo responded, “They want it in there.” The CIA’s former Deputy General Counsel John Rizzo told the OPR that the CIA did not request the addition of the sections.
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In his response to the OPR report, Assistant Attorney General Jay Bybee stated that the “ticking time bomb” that could justify the necessity defense was, in fact, a “real world” scenario. According to Bybee, “the OLC attorneys working on the [August 1, 2002] Memo had been briefed on the apprehension of Jose Padilla on May 8, 2002. Padilla was believed to have built and planted a dirty bomb.”
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The August 1, 2002, memorandum states that the “[i]nterrogation of captured al Qaida operatives allegedly allowed U.S. intelligence and law enforcement agencies to track Padilla and to detain him upon his entry into the United States.”
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This information was inaccurate.
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With the issuance on August 1, 2002, of a second OLC memorandum specific to Abu Zubaydah,
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the CIA initiated the use of its enhanced interrogation techniques. After the CIA subjected Abu Zubaydah and other CIA detainees to the techniques, the CIA made increasingly stronger assertions about the effectiveness of the CIA’s interrogation program, eventually asserting that the CIA interrogation program “saved lives,”
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and that the use of the CIA’s enhanced interrogation techniques was necessary, as the intelligence obtained could not have been acquired in any other way.
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Many of the representations made by the CIA about the effectiveness of the CIA’s enhanced interrogation techniques were first made in the spring of 2003 and evolved over the course of the year and into early 2004. In April 2003, CIA officers told the CIA’s Office of Inspector General (OIG) that KSM, who had been subjected to the techniques between March █, 2003, and March 25, 2003, was still not fully cooperative. For example, on April 3, 2003, more than a week after the CIA had discontinued the use of its enhanced interrogation techniques on KSM, the deputy chief of ALEC Station, ████████████, informed the OIG that KSM had made “remarkable progress,” but there was “a lot more to be done.” ██████ did not cite any specific intelligence obtained from KSM in this context.
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On June 27, 2003, more than three months after the CIA had ceased using its enhanced interrogation techniques against KSM, CTC Chief of Operations █████████ told the OIG that he was convinced that KSM “knows more and is just waiting for us to ask the right questions.”
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█████████ then provided two examples of information that KSM had not provided until he was asked specifically about the matters by CIA interrogators: information on the “tallest building in California” plot (also known as the “Second Wave” plot), and the inclusion of a building in Canary Wharf as a target in the plotting against Heathrow Airport.
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Asked if he could think of any instances in which information from CIA detainees had led to the arrest of a terrorist, █████████ stated only that Majid Khan provided information that led to the arrest of Iyman Faris by the FBI.
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This information was inaccurate, as Majid Khan was not in CIA custody when he provided information on Iyman Faris.
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█████████ represented to the OIG that the CIA’s interrogation program was “very effective,” and that the intelligence obtained from CIA detainees was “the main criteria for judging the success of the program; specifically, intelligence that has allowed CTC to take other terrorists off the street and to prevent terrorist attacks.” █████████ also told the OIG that the information obtained from CIA interrogations was “information that CTC could not have gotten any other way.”
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On June 26, 2003, President Bush issued a statement for the United Nations International Day in Support of Victims of Torture. That statement—referenced in multiple news articles—relayed that the:

“United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment.”
1083

The following day, after the
Washington Post
published an article on the Administration’s detainee policy, CIA Deputy General Counsel John Rizzo called John Bellinger, the legal advisor to the National Security Council. According to an email from Rizzo to other senior CIA officers, Rizzo called Bellinger to: