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The National Security Committee Knew They Were Going to Get FALSE Confessions from Torture

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Jason Leopold [update: and Jeff Kaye] have an important article on a key document used to develop the torture program, but I think its title should be stronger. As his article shows, Condi Rice and several high level Bush officials were briefed at a key meeting in May 2002 and in several follow-up National Security Council meetings on a number of torture techniques the CIA would eventually (and had, to some extent–I’ll have more to say about this in a follow-up) integrated into its torture program.The JPRA document used in the meeting makes it clear the the point of these techniques is to train students to resist “political exploitation” (see page 6; elsewhere the document talks about media exploitation).

As Leopold and Jeff Kaye have previously reported, “exploitation” has a specific meaning, including not just interrogation, but also recruitment as double agents and for propaganda purposes.

“The Jessen notes clearly state the totality of what was being reverse-engineered – not just ‘enhanced interrogation techniques,’ but an entire program of exploitation of prisoners using torture as a central pillar,” he said. “What I think is important to note, as an ex-SERE Resistance to Interrogation instructor, is the focus of Jessen’s instruction. It is exploitation, not specifically interrogation. And this is not a picayune issue, because if one were to ‘reverse-engineer’ a course on resistance to exploitation then what one would get is a plan to exploit prisoners, not interrogate them. The CIA/DoD torture program appears to have the same goals as the terrorist organizations or enemy governments for which SV-91 and other SERE courses were created to defend against: the full exploitation of the prisoner in his intelligence, propaganda, or other needs held by the detaining power, such as the recruitment of informers and double agents. Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.”

As the examples of Ibn Sheikh al-Libi and Jabir al-Fayfi make clear, we used coercive methods for both of these purposes, in addition to whatever intelligence goals we had.

Thus, as Steven Kleinman notes for today’s article, Condi and others were shown what amounts to a how to manual on false confessions before they approved techniques from it for use with Abu Zubaydah and other detainees.

Air Force Col. Steven Kleinman, a career military intelligence officer recognized as one of the DOD’s most effective interrogators as well a former SERE instructor and director of intelligence for JPRA’s teaching academy, said he immediately knew the true value of the PREAL manual if employed as part of an interrogation program.

“This is the guidebook to getting false confessions, a system drawn specifically from the communist interrogation model that was used to generate propaganda rather than intelligence,” Kleinman said in an interview. “If your goal is to obtain useful and reliable information this is not the source book you should be using.”

So it’s important that we know top Bush officials got this document not just because they approved these techniques for the war on terror, but because the May meeting took place between the two dates–February 22 and July 31–when DIA expressed doubts about al-Libi’s claim, made under torture, that there were ties between al Qaeda and Iraq.

Bush’s top advisors knew what they were getting when they approved torture. And they approved them knowing they could be used to get false confessions.

Boxes and Burials in the CIA’s Torture Plans

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In this post, I’m going to test a hypothesis that OLC may not have included “cramped confinement” in its torture plans until it removed “mock burial.” If I’m right, it means after having been told OLC would not approve mock burial, OLC and CIA instead just renamed what they were doing as “cramped confinement” so as to get it past those in DOJ who were opposed to allowing the US to use mock burial in its torture program.

This is a weedy post even by my standards. But the key points are:

  • Many of the discussions about which techniques OLC was approving appear to have taken place orally, not in written form
  • The one written document we know exists–a JPRA Physical Pressures document–was an attempt made during the key three days of the Bybee Memo process to pretend that JPRA sanctioned waterboarding (at least) as it either already had been used or would be used on Abu Zubaydah, rather than as the Navy used it in training
  • The section on small box confinement also seems to have been created in response to this process, meaning it is possible that JPRA adjusted both the name and the description of the technique to provide JPRA sanction for mock burial as it had been done on AZ

The OPR Report’s list of torture techniques is neither the original nor the final list of planned torture techniques

The OPR Report includes a list of torture techniques Mitchell and Jessen proposed to use with Abu Zubaydah that includes both cramped confinement and mock burial, which seems to suggest that the CIA tried to get both approved at once. But the OPR Report provides absolutely no explanation for the source or the date of its list (on PDF 41) of the torture techniques. It says simply:

The CIA psychologists eventually proposed the following twelve EITs to be used in the interrogation of Abu Zubaydah:

In addition to the use of the word “eventually” in this description, there’s further evidence this list is not the first incarnation of the torture techniques requested. That’s because this description of sleep deprivation…

Sleep deprivation: The subject is prevented from sleeping, not to exceed 11 days at a time;

Includes this footnote:

As initially proposed, sleep deprivation was to be induced by shackling the subject in a standing position, with his feet chained to a ring in the floor and his arms attached to a bar at head level, with very little room for movement.

Compare that with the description of sleep deprivation as it appears in the Bybee Two memo.

Sleep deprivation may be used. You have indicated that your purpose in using this technique is to reduce the individual’s ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate. The effect of sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction. You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted. [my emphasis]

The description in the OPR Report for this torture technique, at least, matches what appears in the Bybee Two memo.

Also note the admission (which I had never noticed before) that CIA had already subjected AZ to sleep deprivation but don’t worry, AZ was A-Okay as a result.

you have previously kept him awake for 72 hours

Though their admission to 72 hour sessions of sleep deprivation doesn’t accord with AZ’s memory of his first several weeks in the black site, which describe being kept awake for weeks at a time (perhaps 11 days?), using the shackling technique that OLC would go on to eliminate from their description of sleep deprivation:

I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next 2 to 3 weeks.

[snip]

I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water on my face.

From all this we can make several educated assumptions about the list included in the OPR Report. First, it includes the torture techniques as ultimately incorporated in the torture memos; this is not the list that CIA first brought to OLC. Moreover, we know that the description of sleep deprivation, at least, was watered down to hide the most appalling aspects of the technique that, even though they weren’t described, had already taken place.

Oh, and they were probably lying about the one detail they admitted to, how long they had subjected AZ to sleep deprivation.

But we already knew that.

That said, we know the OPR Report’s list isn’t the final list, either. The OPR Report list still shows, in unredacted form, diapering as a technique. We have no idea when or why that we eliminated from the list. And we know the redacted 12th technique is mock burial, which was eliminated some time after July 24, 2002, though we don’t know when, specifically, that happened. Note that the description of that 12th technique–mock burial–continues onto PDF page 43, so the description of it may include more detail on how it was eliminated from the list.

In other words, at best, this is an interim list. The list may simply reflect the final form that each torture technique request had before it was either incorporated into the Bybee Two memo or eliminated from the list.

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Did DOJ “Lose” the Smoking Gun Torture Document?

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You know what I find surprisingly absent from the OPR Report?

Any discussion of how–just days after potentially receiving a document making clear that SERE techniques were torture and that torture was not effective–John Yoo still authorized the use of torture in US interrogations.

Here are the last two paragraphs of that document:

(U) Another important aspect of the debate over the use of torture is the consideration of its potential impact on the safety of U.S. personnel captured by current and future adversaries. The unintended consequence of a U.S. policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured U.S. personnel. While this would have little impact on those regimes or organizations that already employ torture as a standard means of operating, it could serve as the critical impetus for those that are currently weighing the potential gains and risks associated with the torture of U.S. persons to accept torture as an acceptable option.

(U) CONCLUSION: The application of extreme physical and/or psychological duress (torture) has some serious operational deficits, most notably, the potential to result in unreliable information. This is not to say that the manipulation of the subject’s environment in an effort to dislocate their expectations and induce emotional responses is not effective. On the contrary, systematic manipulation ofthe subject’s environment is likely to result in a subject that can be exploited for intelligence information and other national strategic concerns. [my emphasis]

This document was written by JPRA–the people that administer the SERE program from which our torture program was purportedly reverse-engineered. It provides clear evidence that, on July 25, 2002, JPRA was aware of an ongoing debate over whether or not to use torture with prisoners in US custody. The document clearly states that torture leads to unreliable information. And the document calls these techniques “torture.”

You’d think, if there were proof Yoo had read it, that OPR would include some discussion of how JPRA’s expert opinion that this was torture should have affected Yoo’s own definition of torture (heck–JPRA’s language here would be more on point than the “organ failure” language that Yoo and Jennifer Koester used to define torture). You’d think, given the experts’ opinion that torture produced unreliable information, OPR would have challenged Yoo’s acceptance of the CIA’s claims that torture was the only way to get Abu Zubaydah to reveal the intelligence they claimed he had. You’d think OPR would ask Yoo why–given his reliance on the same JPRA experts to claim that waterboarding didn’t cause psychological harm–he chose to ignore this document from JPRA.

This document, in other words, ought to be a cornerstone of OPR’s analysis of Yoo’s failure to provide independent analysis and include all relevant information about what constituted torture. It ought to be used as proof that Yoo knew he was authorizing what the experts deemed to be torture.

If OPR had proof Yoo read this document, it would be the “smoking gun” that when he wrote the torture memo he knew he was deliberately authorizing torture.

But it’s not clear whether Yoo did read it. And it’s not clear that if he did, proof to that fact would still have been in OLC’s collection of torture documents by the time OPR got around to reviewing those documents.

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It’s Not Just the Emails DOJ Lost, It’s the Backup Documentation

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We’ve been talking quite a bit about John Yoo and Patrick Philbin’s emails on the torture memos that OLC deleted: with a rebuttal of John Yoo’s claims there were no email, a report on the National Archives’ attempts to learn what happened, and a catalog of damning facts we learned from the few emails left over.

But it’s not just the emails that are missing. It’s also some of the backup documentation. Some of the documents that went into the production of the torture memos–and should have been reviewed by OPR over the course of its investigation–disappeared some time in the last 5 years.

As I reported last September, after some delay in a FOIA response, Acting head of OLC, David Barron confessed that OLC could not find all of the documents that it had first listed on a 2006 FOIA response.

The problem, as Barron explained in his declaration, seems to stem from three things: CIA, not OLC, did the original FOIA search in 2005 and at that time did not make a copy of the documents responsive to FOIA; for long periods OPR had the documents, lumped in with a bunch of other torture documents, so it could work on is investigation; the documents got shuttled around for other purposes, as well, including other investigations and one trip to the CIA for a 2007 update to the FOIA Vaughn Index. [Here’s the 2007 Vaughn Index and here’s the Vaughn Index that accompanied Barron’s declaration last September.]

And, somewhere along the way, at least 10 documents originally identified in 2005 as responsive to the FOIA got lost.

Poof!

The 10 Missing Documents

Here’s a list of the short descriptions of what disappeared:

  • Document 6, 07/25/2002, 46 [or 60 or 59] page Top Secret [or Secret] memo providing legal advice
  • Document 20, 09/12/2003, 1 page Top Secret memo requesting legal advice
  • Document 47, 07/07/2004, 1 page Top Secret memo providing legal advice
  • Document 77, 08/16/2004, 2 page Top Secret memo providing legal advice
  • Document 142, undated 2 page Top Secret memo requesting legal advice
  • Document 155, undated 3 page Top Secret draft memo with attached handwritten notes requesting legal advice
  • Document 172, undated 5 page Top Secret memo requesting legal advice
  • Document 175, undated 6 page Top Secret draft memo providing legal advice
  • Document 177, undated 10 page Top Secret draft memo providing legal advice
  • Document 181, undated 127 page Top Secret draft memo providing legal advice

Why did CIA do the FOIA responses?

Now, before I get into why this is troubling in terms of the OPR Report, let me just challenge a claim Barron made in his declaration. He explained that CIA, rather than OLC, had done the first and second FOIA searches this way:

CIA attorneys were initially given access to the OLC Sensitive Compartmented Information Facility (“SCIF”) in 2005 to search for documents responsive to the FOIA request at issue in this litigation. CIA attorneys conducted the search because no OLC attorneys assigned at the time to the processing of FOIA requests had the clearances needed to access and review the documents.

It’s not entirely clear when CIA would have been rifling through OLC’s SCIF drawers in 2005 (and Barron apparently doesn’t feel like telling us). But it would have come after Judge Alvin Hellerstein ordered the CIA to respond to the FOIA on February 2, 2005 (they had been refusing to respond to his order to do so from the previous fall). And they would have done it over the next year and a half. In any case, it would have happened after Daniel Levin wrote his unclassified torture memo, about which the OPR Report explains,

Virtually all of OLC’s attorneys and deputies were included in the review process,

And it would have happened during or after the drafting of the Bradbury memos, about which the OPR Report explains,

Bradbury circulated drafts of his memoranda widely within the Department.

Granted, the OPR Report doesn’t say the Bradbury Memos were circulated widely within OLC, but when they had an incentive to make the claim, DOJ later claimed that the torture memos, which would have been the same compartment as all the FOIA documents, were widely circulated. It seems unlikely that Levin’s memo was reviewed by “virtually all of OLC’s attorneys,” but that the following year they couldn’t find a single OLC lawyer to put together a FOIA response.

And what seems even more curious is that rather than invite CIA to OLC’s SCIF to do the updated FOIA response in 2007–at a time when the documents were under investigation–DOJ would instead send all the documents over to CIA for them to do it.

In 2007, the documents were recalled from OPR by OLC so that they could be sent to the CIA for processing and for purposes of updated the unclassified Vaughn Index submitted in this matter.

It’s sort of funny that DOJ took fewer cautions with these documents after they were actively under investigation than they did beforehand. Here, DOJ seems to have said to the CIA, see if you can’t make some of these documents accidentally blow into the Potomac on your way back to DOJ…

Three Troubling Documents

Now, it’s hard to tell what disappeared, since we don’t actually get to see either the documents that disappeared or those the DOJ thinks might be close matches. But three of the documents, in particular, trouble me.

Document 6, 07/25/2002, 46 [or 60 or 59] page Top Secret [or Secret] memo providing legal advice

Here’s the longer description of this document submitted in the 2007 FOIA response:

Document No. 6 is a 60-page document dated 25 July 2002 that consists of a 3-page memorandum and six attachments of 2 pages, 7 pages, 10 pages, 13 pages, 13 pages, and 12 pages, respectively. It is classified SECRET.

The memorandum and attachments contain confidential client communications from the CIA on a matter in which it requested legal advice from OLC.

Aside from the fact that DOJ has said, at different times, this packet of information was 46, 60, and 59-pages long (and that the same FOIA claims it is classified both Top Secret and Secret), the questions about this document alarm me because I’m fairly certain this is the packet of JPRA information sent OLC in the last days of drafting of the first torture documents. It’s going to take me a full post to explain the many reasons questions about this document’s provenance is problematic–tune in next post for the next installment of disappearing evidence!

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