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How CIA Avoided Negligent Homicide Charges in the Salt Pit Killing

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Since the AP story on the Salt Pit death, reporters have focused a lot of attention to a particular footnote in Jay Bybee’s second response to the OPR Report and what it claims about intent (and, to a lesser degree, what it says about Jay Bybee’s fitness to remain on the 9th Circuit). In it, Jay Bybee references a memo CIA’s Counterterrorism Center wrote in response to Gul Rahman’s death at the Salt Pit; the memo argued that the CIA officer in charge should not be prosecuted under the torture statute because he did not have the specific intent to make Rahman suffer severe pain when he doused him with water and left him exposed in freezing temperatures.

Notably, the declination memorandum prepared by the CIA’s Counterterrorism Section regarding the death of Gul Rahman provides a correct explanation of the specific intent element and did not rely on any motivation to acquire information. Report at 92. If [redacted], as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute. And it is also telling that the declination did not even discuss the possibility that the prosecution was barred by the Commander-in-Chief section of the Bybee memo.

As Scott Horton noted the other day, analysis of the torture statute should not have been the only thing in the declination memo. Prosecutors should have analyzed whether or not Rahman’s killing constituted negligent homicide, among other things.

Note that the declination, issued by politically loyal U.S. attorneys who were subsequently rewarded with high postings at Main Justice, carefully follows the rationalizations that Yoo and Bybee advanced for not prosecuting deaths or serious physical harm resulting from state-sanctioned torture. But the obvious problem, as John Sifton notes at Slate, is that torture and homicide are hardly the only charges that could be brought in such a circumstance. Negligent homicide or milder abuse charges would have obviously been available, and a survey of comparable cases in the setting of state and local prisoners suggests that they are far more common. By looking only at homicide and torture, the prosecutors were paving the way for a decision not to charge.

But the OPR Report and the Legal Principles/Bullet Points documents it describes may explain why this didn’t happen. The Legal Principles/Bullet Points document shows that CIA claimed–possibly, with the tacit approval of the Principals Committee–that the only two criminal statutes that could be applied to its interrogation program were the Torture Statute and the War Crimes Statute.

As a threshold matter, Horton appears to be misstating what the declination memo described in the footnote is and–more importantly–who wrote it. “Politically loyal US Attorneys” did not write the declination described here. Some lawyer at CIA’s CTC wrote it. That’s because, as the OPR Report explains in the section preceding the entirely redacted passage that discusses this letter (the declination letter appears on PDF 98, which appears in the same section as the following quotes from pages PDF 96 and 97), DOJ told CIA to go collect facts about the abuses they reported in January 2003 (which include the Salt Pit killing and threats of death used with Rahim al-Nashiri) themselves.

According to a CIA MFR drafted by John Rizzo on January 24,2003, Scott Muller (then CIA General Counsel), Rizzo and [redacted] met with Michael Chertoff Alice Fisher, John Yoo, and [redacted–probably Jennifer Koester] to discuss the incidents at [redacted]. According to Rizzo, he told Chertoff before the meeting that he needed to discuss “a recent incident where CIA personnel apparently employed unauthorized interrogation techniques on a detainee.”

[snip]

Chertoff reportedly commented that the CIA was correct to advise them because the use of a weapon to frighten a detainee could have violated the law. He stated that the Department would let CIA OIG develop the facts and that DOJ would determine what action to take when the facts were known. According to Rizzo, “Chertoff expressed no interest or intention to pursue the matter of the [redacted].

On January 28, 2003, CIA Inspector General John Helgerson called Yoo and told him that the CIA OIG was looking into the [redacted] matter. According to Helgerson’s email message to Rizzo, Yoo “specifically said they felt they do not need to be involved until after the OIG report is completed.” Rizzo responded to Helgerson: “Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division’s decision on whether or not some criminal law was violated here will be predicated on the facts that you gather and present to them.”

Alerted that, in the course of interrogating detainees, CIA had killed one and threatened to kill another detainee, DOJ’s first response (at least according to two different CIA versions of what happened) was to tell CIA to go collect information on the events themselves. Only after CIA finished investigating and presented the facts of the case would DOJ weigh in on whether a crime had been committed.

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How John Yoo Negated the Mental Suffering of Death Threats in the Bybee Two Memo

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It’s time to read the Bybee Two memo again.

Since the OPR Report came out, we’ve learned the following (some of it was already out there, but I, at least, hadn’t noticed it):

  • After his 63rd interrogation session, Abu Zubaydah experienced what his torturers call “hard dislocation”
  • An “issue arose” during the interrogation of Abu Zubaydah that two CIA lawyers discussed via email on July 10, 2002
  • In the days following CIA lawyers’ discussion of that issue, Criminal Division Chief Michael Chertoff got his own briefing on the torture memo (July 11), followed the next day by a meeting with Alberto Gonzales and probably David Addington (July 12), followed the next day by a larger briefing including Gonzales, Chertoff, John Rizzo and FBI Chief of Staff Daniel Levin that covered both the planned torture techniques and the torture memo (July 13)
  • After Chertoff told CIA at that July 13 meeting that he would not issue an advance declination of prosecution for torture, Rizzo asked for and received a memo laying out “the elements of the torture statute;” the July 13 memo focused closely on the definition of intent to cause mental suffering; Yoo’s supervisors John Ashcroft and Jay Bybee claim to be unaware of the memo
  • In his cable to AZ’s torture team written after both Bybee Memos were completed, Counterterrorism Center lawyer Jonathan Fredman relied on the language on intent from the July 13 memo, not the Bybee One memo
  • Also after the meeting at which Chertoff refused an advance declination, David Addington appears to have directed John Yoo to include several affirmative defenses in the Bybee One memo
  • The next draft of the memo–dated July 23 and for the first time addressed to Alberto Gonzales–included the affirmative defenses Addington had asked for as well as language on intent to cause mental harm adopted from the July 13 memo
  • In the days following that draft, several things happened to change the approach to torture authorization
  • CIA removed mock burial on its list of torture techniques because approving it would hold up the overall memo
  • CIA asked for a separate letter addressing specific techniques–what would become the Bybee Two memo
  • As part of several packets of information they received from CIA on the long term mental effects of torture, Yoo and Jennifer Koester almost certainly received a draft psychological evaluation noting that AZ had experienced “hard dislocation” after session 63, though we can’t prove that they saw that phrase because the copy of the document they received has been altered before being released in FOIA
  • A large packet of information received on the same day as one of the draft psychological evaluations disappeared from the OLC SCIF

All those details make it fairly clear that the Bybee Two memo was designed to respond to the July 13 memo. But they also help to prove that it failed to do what it was intended to do.

How John Yoo told the CIA to “negate” their specific intent to torture

Yoo’s July 13 memo stated that several things were necessary to prosecute torture for the infliction of mental suffering:

  • The commission of certain kinds of predicate acts, that included but were not limited to the use of procedures designed to profoundly disrupt the senses and/or the threat of imminent death
  • The infliction of prolonged mental harm as a result of those predicate acts
  • The specific intent to inflict the severe mental suffering from those predicate acts

But even if someone had the specific intent to commit those predicate acts and prolonged mental harm resulted, Yoo included an escape hatch. He basically said that if a person had conducted studies and based on those studies had concluded that prolonged mental harm would not result, then he could claim to have been operating with a good faith belief that those actions did not cause prolonged mental harm.

Specific intent can be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture. If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions undertaken relying on that advice would have be [sic] undertaken in good faith. Due diligence to meet this standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience.

In other words, to “negate” the specific intent to cause prolonged mental harm that constituted torture, you could do a bunch of study and if that study showed no prolonged mental harm had resulted from these actions in the past, you could then claim that you had no idea that those actions might cause prolonged mental harm in the future, and therefore any deliberate actions that ended up causing prolonged mental harm weren’t really torture.

Abracadabra!!!

As I’ll show below, the Bybee Two memo was designed to show that CIA had done that kind of study. (Note, this is not an original observation; I’m fairly certain both Jeff Kaye and William Ockham have made this observation in the past.) But, as I’ll show in a follow-up post, it fails in what it was designed to do.

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Abu Zubaydah Experienced “Hard” Dislocation After Session 63

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Whoever wrote Abu Zubaydah’s psychological evaluation claimed to have succeeded in subjecting Abu Zubaydah to “hard” dislocation after his 63rd session of torture. And that claim was made before OLC approved the use of torture with him.

I’ve long been aware that we got two versions of Abu Zubaydah’s psychological evaluation last August: the copy purportedly faxed to John Yoo on July 24, 2002. And the copy faxed to the Inspector General on January 31, 2003 as it began its investigation. I had reviewed them last August and–while I found some weird details I’ll get to in a second–had concluded that they were effectively the same content.

They’re not.

The key difference appears in the top paragraph on the fourth page of the evaluation. The copy purportedly sent to Yoo includes these sentences:

In addition, he showed strong signs of sympathetic nervous system arousal (possibly fear) when he experienced the initial “confrontational” dislocation of expectation [] during an interrogation session. Due to his incredibly strong resolve, expertise in civilian warfare, resistance to interrogation techniques (the latter two which he trained hundreds of others on) this experience was one of the few that led to him providing significant actionable intelligence. [my emphasis]

In the copy sent to the IG the following year, that passage reads this way.

In addition, he showed strong signs of sympathetic nervous system arousal (possibly fear) when he experienced the initial “hard” dislocation of expectation intervention following session 63. Due to his incredibly strong resolve, expertise in civilian warfare, resistance to interrogation techniques (the latter two which he trained hundreds of others on) this experience was one of the few that led to him providing significant actionable intelligence. [my emphasis]

The copy sent to the IG identifies precisely when this dislocation happened–after session 63–and calls it “hard” dislocation rather than “confrontational.”

I’ll leave it to the psychologists in the crowd to explain precisely what they mean by the phrase “dislocation of expectation.” And while we don’t know what numbering system the torturers were using for their torture sessions, if they had daily sessions the 63rd would have come some time in mid-June. Long before this memo was written. Whatever else this detail shows, it shows that the torturers were far down the path of torture before they wrote this assessment and they had already broken Abu Zubaydah.

Now, I said above that the first assessment linked here was “purportedly” sent to John Yoo on July 24. That’s because (as I and I think others have pointed out before) the document provides conflicting dates. The cover sheet is dated July 24. The instruction for Yoo to “call me at work or at home, whenever” reflects some degree of urgency. But the following pages clearly show a fax timestamp from July 25 at 5:02 PM. Unless this was a dateline issue (that is, unless it was sent from Thailand or something), then the copy we’ve got–the one with the session number removed–is a later iteration of the assessment.

Also note that the fax cover sheet of the July 24/25 version says the document includes 7 pages. And indeed, we do get seven pages. But the Bates stamp in the bottom right hand corner are missing a page from the series, 0000001 (in fact, the series seems to be different, given the “T” that appears on the cover sheet). Note, too, the Bates numbers from the top right hand corner, which show someone couldn’t decide whether this was document 71 or document 79 (the number 71 is the number from IG’s FOIA response).

One more interesting detail. Both of these assessments came from CIA’s IG. (Though the second number on the front page of the July 24/25 document bears a number showing it was once in Counterterrorism Center’s legal department.) Thus, even though we know OLC probably got at least two drafts of the assessment (one on July 24 and one on July 25), we haven’t seen the copy they should have in their SCIF.

Oh wait. OLC’s SCIF.

That would be OLC’s leaky SCIF, from which documents have a way of disappearing. In fact, one of the documents we know to have disappeared from OLC’s SCIF bears the date July 25, 2002. The missing document is probably not the same document (the missing document is much longer). But as I’ve said, it’s an awfully suspicious day to be losing documents.

The Context of the July 13 Fax

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As I pointed out in an earlier post, when Counterterrorism Center lawyer Jonathan Fredman sent the torturers in Thailand a green light for torture in August 2002, he relied on language about intent from a July 13, 2002 fax from John Yoo to John Rizzo rather than the finalized August 1 Bybee Memo. In a second post on this, I also showed that both of Yoo’s nominal supervisors–Jay Bybee and John Ashcroft–claim they knew nothing about that fax. In this post, I’m going to show how that fax appears to arise out of DOJ discomfort with CIA’s torture program.

As the timeline below shows, Yoo dated (but did not send) the fax the same day that the numerous parties involved in reviewing the Bybee Memo had an apparently contentious meeting at which they discussed the draft memo as well as the CIA’s torture plan (I’m doing a big update on the Torture Timeline, so some of this is not reflected in the timeline yet).

July 10, 2002: John Yoo tells Jennifer Koester that they will present the Bybee memo to NSC at 10:45 on July 12 (and names the Bybee Memo the “bad things opinion”!).

July 11, 2002: John Yoo and Jennifer Koester have briefing session with Michael Chertoff on Bybee Memo.

July 11, 2002: An OLC paralegal cite-checks the draft, and someone schedules a July 12 meeting with Alberto Gonzales and a July 13 meeting with (effectively) NSC.

July 12, 2002: First draft of Bybee Memo distributed outside of OLC.

July 12, 2002: John Yoo meets with Alberto Gonzales (and either David Addington or Tim Flanigan) on Bybee Memo.

July 13, 2002: John Yoo and Jennifer Koester present July 12 draft to John Rizzo, John Bellinger, Michael Chertoff, Daniel Levin, and Alberto Gonzales. Rizzo provides overview of interrogation plan. Chertoff refuses to give CIA advance declination of prosecution. Levin states that FBI would not participate in any interrogation using torture techniques, nor would it participate in discussions on the subject.

July 13, 2002: Rizzo asks Yoo for letter “setting forth the elements of the torture statute.”

July 15, 2002: John Yoo faxes John Rizzo July 13 letter on the torture statute.

July 15, 2002: John Yoo sends Jennifer Koester an email telling her to include a footnote in the opinion stating that they had not been asked about affirmative defenses like necessity, self-defense, or commander-in-chief powers.

July 16, 2002: John Yoo and Jennifer Koester meet with Alberto Gonzales and (probably) David Addington and Tim Flanigan. Yoo shared the July 13 fax with them. At the meeting, it is decided that Yoo will include Commander-in-Chief and other affirmative defenses in Bybee Memo.

July 16, 2002: In response to earlier request from Michael Chertoff (perhaps as early as July 13), John Yoo has Jennifer Koester draft, but not send, a letter to CIA refusing a letter of declination of prosecution.

July 17, 2002: George Tenet meets with Condi Rice, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

Of course, two things are going on in the background. First, when Ali Soufan left the black site in May because James Mitchell threatened Abu Zubaydah with mock burial, DOJ got official notice that one of its top terrorism agents believed that the CIA was using torture with Zubaydah. Yet, two months later, the torturers were almost certainly already using the most aggressive torture with Abu Zubaydah.

What seems to have happened is the following. Yoo and Koester were all set for an NSC meeting on July 12, perhaps until they had a July 11 briefing with Chertoff. In any case, something made them reschedule that NSC meeting to arrange an Alberto Gonzales (and presumably, Addington) meeting first. After which they appear to have had an incredibly contentious meeting with Bellinger, Chertoff, Levin and others. Perhaps the fact that John Rizzo presented the latest interrogation plan (which, we suspect, was already in process anyway) made things worse. We do know, for example, that mock burial remained in the plan, even after Soufan had balked when Mitchell tried to use it two months earlier. Whether because of Rizzo’s presentation or Yoo’s draft memo, at the meeting Chertoff definitively refused an advance declination and Levin announced that FBI would have nothing more to do with CIA’s torture program.

And so Rizzo, perhaps noting that the head of DOJ’s Criminal Division and the FBI Chief of Staff were reacting rather unfavorably to CIA’s torture plan, asked Yoo for some kind of cover. In response, Yoo wrote a memo raising the bar for prosecution of inflicting severe mental suffering incredibly high.

What I find particularly interesting is the 2-day delay before Yoo sent the fax, dated July 13, to Rizzo on July 15. That likely coincided with another delay; we know Chertoff asked Yoo to send Rizzo a letter refusing advance declination sometime between July 13 and July 16, but Yoo didn’t act on that request until he had sent Rizzo his July 13 fax already.

Did Yoo get both the request for the letter refusing advance declination and the request for the letter laying out the torture statute at the same contentious meeting?

And then there’s one more unexplainable coincidence. On the same day Yoo sent the July 13 memo (on July 15), Yoo instructed Koester they not only wouldn’t include any affirmative defenses in the memo, but they would claim they weren’t asked for such things. Yet that happened just a day before heading into a meeting with Gonzales and (almost certainly) Addington, at which they did decide to include such things. And incidentally–a fact I hadn’t noted before–Yoo gave Gonzales and (almost certainly) Addington a copy of his July 13 fax at the same meeting where it was decided to add affirmative defenses to the Bybee Memo.

I can’t prove it. But it appears that Yoo wrote the July 13 fax in response to serious reservations from Chertoff and Levin. And in response to that, Addington directed him to add a bunch more defenses (literal and figurative) into the Bybee Memo.

One last point. As I said, one key difference between the July 13 fax and the Bybee Memo is that Yoo rebutted an obvious objection to his reading of how the Torture Statute treated intent with severe mental suffering.

It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute.

Any bets on whether Chertoff and/or Levin made precisely this argument at that July 13 meeting?

Yoo’s Supervisors Didn’t Know about the July 13, 2002 Fax

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As I pointed out in my last post, when Jonathan Fredman wrote the Abu Zubaydah torture team in Thailand to tell them they had gotten the green light to torture, he cited not the Bybee One memo which had just been signed, but a July 13, 2002 Yoo fax, for his discussion of intent.

This is significant not just because the language on intent in the fax lacks some of the caveats in the Bybee One Memo. But also because it appears Yoo was freelancing when he wrote the July 13 fax.

To be sure, the evidence that Yoo was freelancing when he wrote this fax is not as clear cut as it was for the Legal Principles/Bullet Point documents. Unlike the Legal Principles documents, this fax is on OLC stationary and signed by Yoo, making it appear, at least, like a formal OLC opinion.

But Yoo’s superiors at DOJ claim to have known nothing about it.

In response to July 2008 questions from the Senate Armed Services Committee, Jay Bybee said in October 2008 that he did not recall any written guidance to CIA before the August 1 memo.

Judge Bybee said that he did not recall “any written advice provided to any governmental agency prior to August 1, 2002, on the meaning of the standards of conduct required for interrogation under the federal anti-torture statute or on specific interrogation methods,”

Similarly, when asked in July 2008 whether anyone from his department had authorized torture before August 1, 2002, John Ashcroft claimed he “didn’t know.”

Mr. NADLER. Thank you, Mr. Chairman. Attorney General Ashcroft, in your testimony you mentioned Abu Zubaydah, who was captured in March 2002. The Inspector General report on the FBI’s role in interrogation makes clear that he was interrogated beginning in March of that year. The Yoo-Bybee legal memo was not issued until August 2002. So was the interrogation of Abu Zubaydah before August 2002 done without DOJ legal approval?

Mr. ASHCROFT. I don’t know.

Mr. NADLER. Well, did you offer legal approval of interrogation methods used at that time?

Mr. ASHCROFT. At what time, sir?

Mr. NADLER. Prior to August of 2002, March 2002.

Mr. ASHCROFT. I have no recollection of doing that at all.

Mr. NADLER. And you don’t know if anyone else from the Department of Justice did?

Mr. ASHCROFT. I don’t know.

[snip]

Mr. WEXLER. So from March to August, did you offer any legal approval of the interrogation methods used at that time?

Mr. ASHCROFT. I don’t have any recollection of doing so.

Mr. WEXLER. And did anyone else at the Department of Justice?

Mr. ASHCROFT. I don’t know. I don’t know.

And there is evidence that Jack Goldsmith didn’t learn about it until just before he left DOJ.

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Abu Zubaydah’s Torturers Relied on July 13 Yoo Fax, not Bybee Memo

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There’s an astounding passage in Bybee’s Second Response to the OPR Report that reveals that Abu Zubaydah’s torturers relied on a July 13, 2002 memo Yoo sent to John Rizzo, rather than the Bybee One Memo, for their general torture authorization.

In a passage attempting to refute OPR’s assertion that the Bybee Memo was written so vaguely it could easily be misinterpreted, Jay Bybee’s lawyer, Maureen Mahoney, examines a set of documents the CIA wrote about torture to show (she claims) that CIA never misinterpreted “OLC’s advice,” including the Bybee One Memo. It’s clear that the documents she refers to include at least CIA’s own Interrogation Guidelines, the Bullet Points written to summarize OLC’s advice, the declination memo the Counterterrorism Center wrote in the Salt Pit killing, and a memo Jonathan Fredman, CTC’s top lawyer, wrote to the Abu Zubaydah interrogation team.

Here’s how she describes the Fredman memo:

In addition, the documents OPR uses to reveal the CIA’s understanding of the standards in the Bybee Memo (e.g., Report at 65-66) do not suggest there was any misinterpretation going on. As shown in subsequent sections, these documents (which Bybee never wrote or saw) were actually correct statements of the law. [Redacted] memo to the Abu Zubaydah interrogation team, for instance, which quoted from Yoo’s July 13, 2002 fax to Rizzo, provided a correct summary of the specific intent element. Report at 66; infra Section N.A. It is correct, as Yoo wrote, that if an individual “undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture.” Report at 48; infra Section IV.A. [PDF 32; my emphasis]

We know this memo was from Jonathan Fredman, because Mahoney refers to it again on the next page, and in that reference, the name “Fredman” is not redacted.

As this passage makes clear, Fredman wrote a memo to the Abu Zubaydah torture team including an analysis of how intent plays into Torture Statute. Now, the passage of the OPR Report that discusses this memo (document pages 65-66; PDF pages 71-72) is entirely redacted. But it appears after discussion of the finalization of the Bybee Memo on August 1, 2002, suggesting Fredman’s memo was sent after that date. Indeed, the first passage after the long redacted section refers to “a cable [] sent out last week, following the issuance of the opinions,” which would seem to be a reference to Fredman’s memo. In other words, the memo appears to post-date the Bybee One memo.

Nevertheless, the memo doesn’t refer to the Bybee One Memo for its discussion of intent. Rather, it refers to the July 13, 2002 memo that John Yoo faxed John Rizzo. While we can’t prove it with the redactions, it appears that Fredman made a conscious decision not to refer to the finished, official OLC memo, but instead referred to the more informal fax Yoo had sent earlier in the month.

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Jonathan Fredman on Approvals

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As you probably recall, there was a Counter Resistance Strategy Meeting at Gitmo on October 2, 2002 (the minutes for it start on page 219 of this PDF). At the meeting, Jonathan Fredman, then the Counterterrorism Center’s top lawyer, famously said, "If the detainee dies, you’re doing it wrong."

More interesting (for my present purposes, anyway) are his comments about how the CIA got approval for torture. First, he claims that the US did not sign Article 16 of the Convention Against Torture because the 8th Amendment covers that already.

Fredman: The Torture Convention prohibits torture and cruel, inhumane and degrading treatment. The US did not sign up on the second part, because of the 8th amendment (cruel and unusual punishment), but we did sign the part about torture. This gives us more license to use more controversial techniques.

It’s a bizarre argument to make, not just because it’s false, but because at other times the CIA and DOJ rationalized ignoring Article 16, they focused on the 5th Amendment, not the 8th.

Later, Fredman has a conversation about what approval process DOD might use to be able to use torture.

[GTMO Interrogation Control Element (ICE) Chief Dave] Becker: Would we get blanket approval or would it be case by case?

Fredman: The CIA makes the call internally on most of the types of techniques found in the BSCT paper, and this discussion. Significantly harsh techniques are approved through the DOJ.

[Director for Intelligence (J-2)] LTC Phifer: Who approves ours? The CG? SOUTCOM CG?

Fredman: Does the Geneva Convention apply? The CIA rallied for it not to.

Phifer: Can we get DOJ opinion about these topics on paper?

LTC Diane Beaver: Will it go from DOJ to DOD?

Phifer: Can we get to see a CIA request to use advanced aggressive techniques?

Fredman: Yes, but we can’t provide you with a copy. 

As you know, I’ve been tracking the way that Jim Haynes and David Addington parsed answers about when they saw the Bybee Two memo, describing the torture techniques approved for Abu Zubaydah; Addington even seemed to be dodging questions about whether or not he showed anyone at Gitmo the memo. And this exchange seems to suggest CTC was willing to share its DOJ backup with Gitmo officers.

Mind you, this meeting took place a week after Addington and Haynes went on their Gitmo field trip and the context seems to suggest that Phifer, at least, has not seen the Bybee Two memo. Read more →

The July 2002 Torture Training Session

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As I suggested, I’m working on a narrative of the known torture approvals. As part of that, I wanted to look at the approvals the CIA claimed were in place in early July, 2002–before the first known OLC opinion relating specifically to torture.

The Senate Armed Services Committee Report describes a training session JPRA conducted for CIA officers headed to Afghanistan and elsewhere on July 1-2, 2002 (we know it’s CIA because it later quotes Jonathan Fredman, then the Counterterrorism Center’s top lawyer). The training covered a range of torture techniques–apparently including some, like water dousing, not later approved by OLC for use with Abu Zubaydah.

In advance ofthe training, JPRA developed a two day lesson for [redacted] covering the "full spectrum [of] exploitation," including both explanations and demonstrations of physical pressures that were approved for use at JPRA’s SERE school. 149 At the time, JPRA-approved techniques included body slaps, face slaps, hooding, stress positions, walling, immersion in water, stripping, isolation, and sleep deprivation, among others. 150

At the training, instructors demonstrated waterboarding, even though they weren’t qualified by SERE guidelines to do so.

In addition to explaining and demonstrating the physical pressures used at SERE school, the JPRA personnel also provided instruction on waterboarding.

[snip]

None of the JPRA personnel who provided the assistance had ever conducted waterboarding and would not have been qualified to do so at SERE school.

That’s the range of torture techniques trained at the session. And here’s what two CIA lawyers instructed participants with regard to the legality of using those techniques.

The July 16, 2002 after action memo stated that two agency legal personnel were also present for the training. 157 According to the memo, [redacted] personnel "requested and were granted time to present the legal limits of physiological and psychological pressures that were acceptable at the present time." 158 The after action memo described the legal briefing:

Their 30-40 [minute] brief was very supportive. Basically, [redacted] were told they could use all forms of psychological pressure discussed and all of the physiological pressures with the exception of the ‘water board.’ They were advised that should they feel the need to use the water board, they would need prior approval. They were also briefed on the ramifications for participating in torture, which under international law is defined as a ‘capital crime’ and could result in a death sentence if convicted. An eye opener to say the least. 159

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If the Detainee Dies, Doing Sleep Deprivation Is Wrong

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afghandrawing1.thumbnail.jpgOne of the most shocking quotes from the Senate Armed Services Committee torture report came from Jonathan Fredman, then the Counsel for CounterTerrorism Center at CIA, now working for the Director of National Intelligence, told some interrogators at Gitmo, "It is basically subject to perception. If the detainee dies you’re doing it wrong." Fredman is reported to have said that on October 2, 2002. A month later, on November 1, 2002, the staff JAG for a Special Ops unit in Bagram judged there was a risk to participating in CIA interrogations; "we are at risk as we get more ‘creative’ and stray from standard interrogation techniques and procedures taught at DoD and DA schools and detailed in official interrogation manuals." A month after that, two prisoners at Bagram died as a result of torture; Habibullah on December 3 and Dilawar on December 9 or 10.

This is not news. Their deaths–particularly that of Dilawar–have received a good deal of attention. There was an extensive report on their treatment in the NYT. (And as Loo Hoo notes, Dilawar was the subject of Taxi to the Dark Side.)

What I did not know, though, is that the criminal report on their deaths found the use of stress positions and sleep deprivation, "combined with other mistreatment," to have "caused" or have been "direct contributing factors" in the two homicides. From the SASC report:

In December 2002, two detainees were killed while detained by CITF-180 at Bagram. Though the techniques do not appear to have been included in any written interrogation policy at Bagram, Army investigators concluded that the use of stress positions and sleep deprivation combined with other mistreatment at the hands of Bagram personnel, caused or were direct contributing factors in the two homicides. 1174 In the wake ofthe deaths of Habibullah and Dilawar, CITF-180 and the SMU TF began developing written standard operating procedures (SOPs) for interrogations. [my emphasis]

This report was dated October 8, 2004.

Mind you, this is the best demonstration available that (as Jeff Kaye has explained) "sleep deprivation"–as described in the torture program–is never just sleep deprivation. 

What this … demonstrates is the proclivity of the CIA and other government torturing agencies to twist the meaning of words, and stuff into the nomenclature of one "technique" or procedures a veritable cornucopia of different torture methods. In this "enhanced interrogation" version of sleep deprivation, forced sleep deficit was combined, as we can see, with shackling, forced positions and forced standing, humiliation, manipulation of diet, sensory overload, and possibly other torture procedures.

Rather, "sleep deprivation" is the excuse for shackling prisoners, in the case of Dilawar, hanging him from the ceiling by his arms.

That October 8, 2004 criminal investigation report, then, was effectively an admission that the "sleep deprivation," as practiced, combined with other harsh treatment (in the case of Dilawar, extensive beatings to his legs while he was hanging from his arms), could kill.

Now look at that date once more: October 8, 2004, Read more →