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Context of 'Shortly After April 28, 2004-February 2005: CIA Temporarily Suspends Use of Some Aggressive Interrogation Techniques, Including Waterboarding'

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The CIA comes up with a list of 10 “Enhanced Interrogation Techniques” that it will allow to be used on captured high-ranking al-Qaeda detainees. In 2005, ABC News will reveal six of the techniques on the list and describe them as follows:
bullet The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
bullet The Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
bullet The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
bullet Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
bullet The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
bullet Waterboarding: The prisoner is bound to an inclined board, feet raised, and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt. [ABC News, 11/18/2005]
The New York Times will later reveal that there are actually four more techniques on the list, but will not detail what they are. [New York Times, 11/9/2005]
Waterboarding Most Controversial Technique - Waterboarding will be the most controversial technique used. In centuries past, it was considered by some to be the most extreme form of torture, more so than thumbscrews or use of the rack. [Harper's, 12/15/2007] “The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law,” says John Sifton of Human Rights Watch. CIA officials who allowed themselves to be waterboarded lasted, on average, 14 seconds before caving in. In addition, such confessions are dubious at best. “This is the problem with using the waterboard. They get so desperate that they begin telling you what they think you want to hear,” says one of the CIA sources. [ABC News, 11/18/2005]
List Compiled with Help from Egypt, Saudi Arabia - The list is secretly drawn up by a team including senior CIA officials, and officials from the Justice Department and the National Security Council. The CIA got help in making the list from governments like Egypt and Saudi Arabia that are notorious for their widespread use of torture (see Late 2001-Mid-March 2002). [New York Times, 11/9/2005] Apparently, “only a handful” of CIA interrogators are trained and authorized to use these techniques. Later this month, al-Qaeda leader Abu Zubaida will be captured and the CIA will begin using all of these techniques on him (see March 28, 2002). However, the White House will not give the CIA clear legal authority to do so until months after the CIA starts using these techniques on Zubaida (see March 28-August 1, 2002).
Techniques 'Cruel, Inhuman, and Degrading' under Treaty - In 2004, CIA Inspector General John Helgerson will determine in a classified report that these techniques appear to constitute cruel, inhuman, and degrading treatment under the Convention Against Torture, an international treaty signed by the US (see October 21, 1994 and May 7, 2004). Former CIA officer Robert Baer calls the use of such techniques “bad interrogation,” and notes, “[Y]ou can get anyone to confess to anything if the torture’s bad enough.” [ABC News, 11/18/2005]

Entity Tags: John Sifton, John Helgerson, Abu Zubaida, ABC News, Central Intelligence Agency, Robert Baer

Timeline Tags: Torture of US Captives, Civil Liberties

Mohammed Omar Abdul-Rahman.Mohammed Omar Abdul-Rahman. [Source: Public domain]In 2007, NBC News will report that the CIA uses aggressive interrogation techniques on at least 13 high-ranking al-Qaeda detainees between 2002 and 2004. These techniques are first used on Abu Zubaida, captured in March 2002 (see March 28, 2002), and some of the techniques are discontinued in the wake of the Abu Ghraib scandal around the middle of 2004 (see April 28, 2004), which is also around the time the CIA’s Inspector General issues a secret report suggesting many of these techniques could be a violation of an international treaty against torture (see May 7, 2004). Euphemistically called “enhanced interrogation,” these techniques include:
bullet Sleep deprivation.
bullet Exposure to extreme heat and cold.
bullet Confined quarters.
bullet Psychological and physical abuse.
bullet The use of psychotropic drugs.
bullet Waterboarding. However, waterboarding is allegedly only used on about four of the detainees (see May 2002-2003).
All 13 of these detainees will later be transferred to Guantanamo prison to stand trial before a military tribunal there (see September 2-3, 2006). (Two others similarly transferred - Abu Faraj al-Libbi and Abd al-Hadi al-Iraqi - are captured after the Abu Ghraib scandal and thus are not subjected to as many interrogation techniques.) [MSNBC, 9/13/2007] However, there are other “ghost detainees” not officially acknowledged as captured by the US government (see June 7, 2007). Some, like Hassan Ghul, Abdul Rahim al-Sharqawi, and Mohammed Omar Abdul-Rahman, are held in the same secret prison as most of the “official” high-ranking detainees later transferred to Guantanamo, so it would seem likely that aggressive techniques have been used on many of them as well. In 2007, President Bush will sign an executive order allowing the CIA to use most of these aggressive techniques again (see July 2007).

Entity Tags: Mohamad Farik Amin, Majid Khan, Mustafa Ahmed al-Hawsawi, Khallad bin Attash, Ramzi bin al-Shibh, Mohammed Nazir Bin Lep, Khalid Shaikh Mohammed, Mohammed Omar Abdul-Rahman, Hambali, Abdul Rahim al-Sharqawi, Abd al-Rahim al-Nashiri, Abd al-Hadi al-Iraqi, Hassan Ghul, Abu Faraj al-Libbi, Ali Abdul Aziz Ali, Ahmed Khalfan Ghailani, Central Intelligence Agency, Abu Zubaida, Gouled Hassan Dourad

Timeline Tags: Torture of US Captives, Complete 911 Timeline

This picture of US soldiers supervising the waterboarding of North Vietnamese prisoners was published in a US newspaper in 1968, resulting in an investigation and convictions.This picture of US soldiers supervising the waterboarding of North Vietnamese prisoners was published in a US newspaper in 1968, resulting in an investigation and convictions. [Source: Bettmann / Corbis]In 2007, it will be reported that the CIA used the controversial interrogation technique of waterboarding on at least three detainees. The Associated Press will claim the detainees are:
bullet Abu Zubaida, who is captured in March 2002 and tortured around May 2002 (see March 28, 2002 and Mid-May 2002 and After).
bullet Abd al-Rahim al-Nashiri, who is captured in November 2002 (see Early October 2002 and (November 2002)).
bullet Khalid Shaikh Mohammed (KSM), who is allegedly captured in early 2003 (see February 29 or March 1, 2003 and Shortly After February 29 or March 1, 2003). [Associated Press, 12/11/2007]
bullet NBC News will report a list of three that includes Hambali, who is captured in August 2003 (see August 12, 2003 and Shortly After August 12, 2003). NBC’s list also mentions KSM and Zubaida, but does not mention al-Nashiri. [MSNBC, 9/13/2007] In a 2007 book, former CIA Director George Tenet will hint that slightly more than three may have been waterboarded, writing, “The most aggressive interrogation techniques conducted by CIA personnel were applied to only a handful of the worst terrorists on the planet, including people who had planned the 9/11 attacks…” [Tenet, 2007, pp. 242] ABC News will claim in September 2007, “It is believed that waterboarding was used on fewer than five ‘high-value’ terrorist subjects…” [ABC News, 9/14/2007] Prior to 2002, waterboarding was classified by the US government as a form of torture, and treated as a serious criminal offense. US soldiers were court-martialled for waterboarding captives as recently as the Vietnam War. The technique is said to simulate death by drowning. [New Yorker, 8/6/2007] In the 1600s, King James I of England wrote about the torture his government was using and stated that waterboarding was the most extreme form of torture used, worse than the rack and thumbscrews. [Harper's, 12/15/2007] In 2007, it will be revealed that at least some of the interrogations of Zubaida and al-Nashiri were videotaped, and it is suspected by some that their waterboarding may have been taped (see Spring-Late 2002). These tapes will later be destroyed under controversial circumstances (see November 2005). A government official will later claim that waterboarding is no longer used after 2003. The CIA and US military will prohibit the use of waterboarding in 2006. [Associated Press, 12/11/2007]

Entity Tags: George J. Tenet, Central Intelligence Agency, Abd al-Rahim al-Nashiri, Hambali, Khalid Shaikh Mohammed, Abu Zubaida

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Following its failure to get direct access to high-ranking al-Qaeda detainees (see October 2003 and November 5, 2003-January 2004), the 9/11 Commission has the CIA ask the detainees more questions about how the plot developed. This is a second round of questions from the Commission, which was dissatisfied with the answers produced by the first round. According to CIA and 9/11 Commission staffers, as well as an MSNBC analysis in 2008, this second round is “specifically to answer new questions from the Commission.” Analysis of the 9/11 Commission report indicates this second round includes more than 30 separate interrogation sessions. Based on the number of references attributed to each of the sessions, they appear to have been “lengthy.” The Commission is aware that the detainees are being harshly treated (see Late 2003-2004), but it is unclear whether they are further tortured during these additional sessions. The CIA is still using some or all of its “enhanced techniques” at this time (see Shortly After April 28, 2004-February 2005). [MSNBC, 1/30/2008]

Entity Tags: 9/11 Commission, Central Intelligence Agency, Al-Qaeda

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

CIA Director George Tenet orders a suspension of waterboarding and some other aggressive interrogation techniques. Intelligence officials will later claim that the Abu Ghraib scandal publicized in April 2004 (see April 28, 2004), is a major factor in the decision. Additionally, the CIA’s Inspector General finishes a secret report around the same time the Abu Ghraib scandal breaks, an it suggests that many aggressive techniques may violate an international treaty against torture that the US has signed (see May 7, 2004). NBC News will later claim that the biggest reason is the worry: “Could CIA officials, including both the interrogators and their superiors, ultimately be prosecuted?” [MSNBC, 9/13/2007] The CIA approved a list of about 10 aggressive techniques, including waterboarding, in March 2002 (see Mid-March 2002), and used them on many high-ranking al-Qaeda detainees until this time (see March 28, 2002-Mid-2004). But the CIA suspends their use until the Justice Department can conduct a legal review. One former senior CIA official will say in June 2004, “Everything’s on hold. The whole thing has been stopped until we sort out whether we are sure we’re on legal ground.” [Washington Post, 6/27/2004] In December 2004, the Justice Department will publicly issue a new and public memo allowing the use of some aggressive techniques (see December 30, 2004). Then, in February 2005, it will secretly issue another memo that goes further, and will even allow the CIA to use waterboarding again. The New York Times will later call it “an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency” (see February 2005). The CIA presumably then resumes using most of these techniques but it does not resume waterboarding, as it had already stopped doing that in 2003 (see May 2002-2003).

Entity Tags: Central Intelligence Agency, George J. Tenet

Timeline Tags: Torture of US Captives, Complete 911 Timeline

The CIA’s inspector general, John Helgerson, releases a highly classified report from his office that examines allegations of torture from the time period between September 2001 (after the 9/11 attacks, when the CIA first began detaining suspected terrorists and informants) and October 2003. In the report, Helgerson warns that some aggressive interrogation techniques approved for use by the CIA since early 2002 (see Mid-March 2002) might violate some provisions of the international Convention Against Torture (see October 21, 1994). The report doubts the Bush administration position that the techniques do not violate the treaty because the interrogations take place overseas on non-US citizens. It will be released, in heavily redacted form, to the public in August 2009 (see August 24, 2009). From what becomes known of the report’s contents, the CIA engaged in a number of illegal and ethically questionable tactics on the part of its interrogators. Some of these tactics include the use of handguns, power drills, threats, smoke, and mock executions. Many of the techniques used against detainees were carried out without authorization from higher officials. The report says that the CIA’s efforts to provide “systematic, clear, and timely guidance” to interrogators were “inadequate at first” and that that failure largely coincided with the most significant incidents involving the unauthorized coercion of detainees, but as guidelines from the Justice Department accumulated over several years, oversight “improved considerably.” The report does not conclude that the techniques reviewed constitute torture, but it does find that they appear to constitute cruel, inhuman, and degrading treatment under the Convention. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 11/9/2005; MSNBC, 8/24/2009; Washington Post, 8/24/2009]
Physical Abuse - The report defines torture as an act “intended to inflict severe physical or mental pain and suffering.” It then begins detailing such acts. Incidents of physical abuse include:
bullet One incident caused the death of an Afghani detainee. According to the report: “An agency independent contractor who was a paramilitary officer is alleged to have severely beaten the detainee with a large metal flashlight and kicked him during interrogation sessions. The detainee died in custody.” [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009] In a 2009 statement, Helgerson will write: “In one extreme case, improvisation took a disastrous turn when an agency contractor in rural Afghanistan—acting wholly outside the approved program and with no authorization or training—took it upon himself to interrogate a detainee. This officer beat the detainee and caused his death. Following an investigation of the incident, this contract employee was convicted of assault and is now in prison.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
bullet Waterboarding was routinely used, in a manner far exceeding previously issued guidelines. Interrogators “continuously applied large volumes of water,” and later explained that they needed to make the experience “more poignant and convincing.” The CIA interrogators’ waterboarding technique was far more aggressive than anything used in military survival training such as the SERE program (see December 2001). Eventually, the agency’s Office of Medical Services criticized the waterboarding technique, saying that the “frequency and intensity” with which it was used could not be certified as “efficacious or medically safe.” [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; Washington Post, 8/24/2009] The report refers in particular to the treatment of 9/11 mastermind Khalid Shaikh Mohammed (KSM), who was reportedly waterboarded more than once (see Shortly After February 29 or March 1, 2003). Waterboarding is considered torture and is illegal in the US. The report also raises concern that the use of these techniques could eventually cause legal troubles for the CIA officers who used them. [New York Times, 11/9/2005]
Helgerson will write: “We found that waterboarding had been utilized in a manner that was inconsistent with the understanding between CIA and the Department of Justice. The department had provided the agency a written legal opinion based on an agency assurance that although some techniques would be used more than once, repetition would ‘not be substantial.’ My view was that, whatever methodology was used to count applications of the waterboard, the very large number of applications to which some detainees were subjected led to the inescapable conclusion that the agency was abusing this technique.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
bullet In July 2002, a CIA officer used a “pressure point” technique “with both of his hands on the detainee’s neck, the officer manipulated his finger to restrict the detainee’s carotid artery.” The carotid artery supplies the brain with oxygenated blood; such “manipulat[ion]” could lead to unconsciousness or even death. A second officer “reportedly watched his eyes to the point that the detainee would nod and start to pass out. Then the officer shook the detainee to wake him. This process was repeated for a total of three applications on the detainee.”
bullet A technique routinely used by CIA interrogators was the “hard takedown,” which involves an interrogator grabbing a detainee and slamming him to the floor before having the detainee moved to a sleep-deprivation cell. One detainee was hauled off his feet by his arms while they were bound behind his back with a belt, causing him severe pain.
bullet Another routinely used technique is “water dousing,” apparently a variant of waterboarding, in which a detainee is laid on a plastic sheet and subjected to having water sluiced over him for 10 to 15 minutes. The report says that at least one interrogator believed the technique to be useful, and sent a cable back to CIA headquarters requesting guidelines. A return cable explained that a detainee “must be placed on a towel or sheet, may not be placed naked on the bare cement floor, and the air temperature must exceed 65 degrees if the detainee will not be dried immediately.”
- - Detainee Abd al-Rahim al-Nashiri, suspected of plotting the 2000 bombing of the USS Cole (see October 12, 2000), was repeatedly “bathed” with hard-bristled scrub brushes in order to inflict pain. The brushes caused abrasions and bleeding. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009]
Helgerson will write: “Agency officers who were authorized to detain and interrogate terrorists sometimes failed in their responsibilities. In a few cases, agency officers used unauthorized, threatening interrogation techniques. The primary, common problem was that management controls and operational procedures were not in place to avoid the serious problems that arose, jeopardizing agency employees and detainees alike.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
Mental Abuse - Numerous instances of mental and emotional abuse were also documented.
bullet In 2002, interrogators staged a mock execution to intimidate a detainee. CIA officers began screaming outside the room where the detainee was being interrogated. When leaving the room, he “passed a guard who was dressed as a hooded detainee, lying motionless on the ground, and made to appear as if he had been shot to death.” The report says that after witnessing this performance, the detainee “sang like a bird.”
bullet Handguns and power drills were used to threaten detainees with severe bodily harm or death. One such instance involved al-Nashiri. An American, whose name is not released but who is identified as not being a trained interrogator and lacking authorization to use “enhanced methods,” used a gun and a power drill to frighten him. The American pointed the gun at al-Nashiri’s head and “racked” a round in the chamber. The American also held a power drill near al-Nashiri and revved it, while al-Nashiri stood naked and hooded. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; MSNBC, 8/24/2009; MSNBC, 8/25/2009]
In 2009, reporter David Ignatius will say he finds the “image of a CIA interrogator standing with a power drill next to somebody he’s interrogating… particularly horrific, because that’s a technique that’s been used in torturing people in Iraq.” [PBS, 8/24/2009]
bullet A CIA interrogator told al-Nashiri that if he did not cooperate with his captors, “we could get your mother in here” and “we can bring your family in here.” The report says that the interrogator wanted al-Nashiri to infer for “psychological” reasons that his female relatives might be sexually abused. The interrogator has denied actually threatening to sexually abuse al-Nashiri’s mother or other relatives.
bullet An interrogator threatened the lives of one detainee’s children. According to the report, an “interrogator said to Khalid Shaikh Mohammed that if anything else happens in the United States, quote, ‘we’re going to kill your children.’” According to the report, the debriefer was trying to exploit a belief in the Middle East that interrogation techniques included sexually abusing female relatives in front of the detainees. It was during these same interrogation sessions that Mohammed was waterboarded 183 times in a single month (see April 16, 2009). [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; MSNBC, 8/24/2009; MSNBC, 8/25/2009]
Fear of Recriminations - According to the report, there was concern throughout the agency over the potential legal consequences for agency officers. Officers “expressed unsolicited concern about the possibility of recrimination or legal action” and said “they feared that the agency would not stand behind them,” according to the report. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009] According to the report, CIA personnel “are concerned that public revelation” of the program will “seriously damage” personal reputations as well as “the reputation and effectiveness of the agency itself.” One officer is quoted as saying he could imagine CIA agents ending up before the World Court on war crimes charges. “Ten years from now, we’re going to be sorry we’re doing this,” another officer said. But “it has to be done.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009] Helgerson will write: “This review of the agency’s early detention and interrogation activities was undertaken in part because of expressions of concern by agency employees that the actions in which they were involved, or of which they were aware, would be determined by judicial authorities in the US or abroad to be illegal. Many expressed to me personally their feelings that what the agency was doing was fundamentally inconsistent with long established US government policy and with American values, and was based on strained legal reasoning. We reported these concerns.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
Recommendations - The report lists 10 recommendations for changes in the treatment of detainees, but it will not be reported what these are. Eight of the recommendations are apparently later adopted. Former CIA assistant general counsel John Radsan will later comment, “The ambiguity in the law must cause nightmares for intelligence officers who are engaged in aggressive interrogations of al-Qaeda suspects and other terrorism suspects.” [New York Times, 11/9/2005]
Approval, Contradictory Statements by Attorney General - The report says that Attorney General John Ashcroft approved all of these actions: “According to the CIA general counsel, the attorney general acknowledged he is fully aware of the repetitive use of the waterboard and that CIA is well within the scope of the DOJ opinion that the authority given to CIA by that opinion. The attorney general was informed the waterboard had been used 119 times on a single individual.” In 2009, reporter Michael Isikoff will say that the contents of the report “conflict… with the public statements that have been made over the years by Bush administration officials and CIA directors.” In 2007, then-CIA Director Michael Hayden will tell the Council on Foreign Relations that the agency’s detention and interrogation program was “very carefully controlled and lawfully conducted—has been carefully controlled and lawfully conducted.” Isikoff will say, “It’s kind of hard to square that with… what was in the CIA inspector general report that had been presented five years ago in 2004.” [Central Intelligence Agency, 5/7/2004 pdf file; MSNBC, 8/25/2009]
Questions of Effectiveness - The report does document that some interrogations obtained critical information to identify terrorists and stop potential plots, and finds that some imprisoned terrorists provided more information after being exposed to brutal treatment (see August 24, 2009). It finds that “there is no doubt” that the detention and interrogation program itself prevented further terrorist activity, provided information that led to the apprehension of other terrorists, warned authorities of future plots, and helped analysts complete an intelligence picture for senior policymakers and military leaders. But whether the harsh techniques were effective in this regard “is a more subjective process and not without some concern,” the report continues. It specifically addresses waterboarding as an illegal tactic that is not shown to have provided useful information. “This review identified concerns about the use of the waterboard, specifically whether the risks of its use were justified by the results, whether it has been unnecessarily used in some instances,” the report reads, and notes that in many instances, the frequency and volume of water poured over prisoners’ mouths and noses may have exceeded the Justice Department’s legal authorization. In the instance of detainee Abu Zubaida, the report finds, “It is not possible to say definitively that the waterboard is the reason for Abu [Zubaida]‘s increased production [of intelligence information], or if another factor, such as the length of detention, was the catalyst.” In 2009, Isikoff will note that the effectiveness of torture is not clarified by the report. “As you know, Vice President [Dick] Cheney and others who had defended this program have insisted time and again that valuable intelligence was gotten out of this program. You could read passages of this report and conclude that that is the case, that they did get—some passages say important intelligence was gotten. But then others are far more nuanced and measured, saying we don’t really know the full story, whether alternative techniques could have been used.” [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; MSNBC, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009]
Cheney Blocked Report's Completion - Reporter Jane Mayer later learns that Cheney intervened to block Helgerson from completing his investigation. Mayer will write that as early as 2004, “the vice president’s office was fully aware that there were allegations of serious wrongdoing in the [interrogation] program.” Helgerson met repeatedly and privately with Cheney before, in Mayer’s words, the investigation was “stopped in its tracks.” She will call the meetings “highly unusual.” In October 2007, CIA Director Michael Hayden will order an investigation of Helgerson’s office, alleging that Helgerson was on “a crusade against those who have participated in controversial detention programs.” [Public Record, 3/6/2009]

Entity Tags: Office of Medical Services (CIA), International Criminal Court, Jane Mayer, John Helgerson, David Ignatius, John Radsan, John Ashcroft, Convention Against Torture, Abu Zubaida, Bush administration (43), US Department of Justice, Richard (“Dick”) Cheney, Central Intelligence Agency, Michael Hayden, Abd al-Rahim al-Nashiri, Khalid Shaikh Mohammed, Michael Isikoff

Timeline Tags: Torture of US Captives, Complete 911 Timeline

The Justice Department issues a 17-page memo which officially replaces the August 2002 memo (see August 1, 2002), which asserted that the president’s wartime powers supersede international anti-torture treaties and defined torture very narrowly, describing it as a tactic that produces pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The new memo, authored by acting chief of the Office of Legal Counsel (OLC) and Acting Assistant Attorney General Daniel Levin, is ostensibly meant to deflect criticisms that the Bush administration condones torture. In fact, the very first sentence reads, “Torture is abhorrent both to American law and values and to international norms.” But the White House insists that the new memo does not represent a change in policy because the administration has always respected international laws prohibiting the mistreatment of prisoners. The primary concern of the new memo is to broaden the narrow definition of torture that had been used in the August memo. Levin adopts the definition of torture used in Congressional anti-torture laws, which says that torture is the infliction of physical suffering, “even if it does not involve severe physical pain.” But the pain must still be more than “mild and transitory,” the memo says. Like the original memo, Levin says that torture may include mental suffering. But to be considered so it would not have to last for months or years, as OLC lawyers Jay Bybee and John Yoo had asserted two years earlier. The most contested conclusions of the August 2002 memo—concerning the president’s wartime powers and potential legal defense for US personnel charged with war crimes—are not addressed in the Levin memo. “Consideration of the bounds of any such authority would be inconsistent with the president’s unequivocal directive that United States personnel not engage in torture,” the memo says. [US Department of Justice, 12/30/2004 pdf file; Associated Press, 12/31/2004]
National Security Not a Justification for Torture - The memo also attempts to quell concerns that the administration believes national security may be used as justification for tactics that could be considered as torture. It states, “[A] defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute.” [US Department of Justice, 12/30/2004 pdf file]
Memo Divided White House Officials - Many in the White House opposed the issuance of the memo, but were rebuffed when other administration officials said the memo was necessary to ease the confirmation of Alberto Gonzales as Attorney General. [New York Times, 10/4/2007]
Torture Opponents Disappointed - Civil libertarians and opponents of torture within the Justice Department are sharply disappointed in the memo. While it gives a marginally less restrictive definition of the pain required to qualify as torture, and gives no legal defenses to anyone who might be charged with war crimes, it takes no position on the president’s authority to override interrogation laws and treaties, and finds that all the practices previously employed by the CIA and military interrogators were and are legal. Yoo will later write that “the differences in the opinions were for appearances’ sake. In the real world of interrogation policy, nothing had changed. The new opinion just reread the statute to deliberately blur the interpretation of torture as a short-term political maneuver in response to public criticism.” [Savage, 2007, pp. 196-197]
Secret Memo Will Allow Waterboarding; Dissidents Purged - A secret memo is completed a short time later that allows such torture techniques as waterboarding to be used again (see February 2005). The Levin memo triggers a department-wide “purge” of dissidents and torture opponents; some will resign voluntarily, while others will resign after being denied expected promotions. [Savage, 2007, pp. 197]

Entity Tags: Office of Legal Counsel (DOJ), Bush administration (43), Daniel Levin, Alberto R. Gonzales, Jay S. Bybee, John C. Yoo

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

The Justice Department issues a secret opinion that countermands and contradicts the administration’s official policy that torture is “abhorrent” and will not be practiced by US military or law enforcement officials (see December 30, 2004). The secret opinion is, the New York Times writes two years later while publicly revealing its existence, “an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.” The opinion gives explicit authorization to abuse detainees with a combination of physical and psychological abuse, including head-slapping, stress positioning, simulated drowning (“waterboarding”), and prolonged exposure to intense cold. New attorney general Alberto Gonzales (see November 10, 2004) approves the memo over the objections of deputy attorney general James Comey, himself preparing to leave the Justice Department after a series of battles over the legality of torture and the domestic surveillance program (see March 10-12, 2004). Comey says at the time that everyone at the department will be “ashamed” of the new opinion once the world learns of it. [New York Times, 10/4/2007]

Entity Tags: US Department of Justice, Alberto R. Gonzales, Central Intelligence Agency, New York Times

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

In his first exit interview after the November 2008 elections, Vice President Dick Cheney unapologetically acknowledges that the US used waterboarding on suspected terrorists, and says that the Guantanamo Bay prison should remain open until terrorism has been eradicated. Methods such as waterboarding were indeed used on at least one subject, suspected 9/11 plotter Khalid Shaikh Mohammed (see May 2002-2003, Shortly After February 29 or March 1, 2003, March 7 - Mid-April, 2003, After March 7, 2003, and May 2003), Cheney says, but he goes on to claim that those methods do not constitute torture. “On the question of so-called torture, we don’t do torture,” he says. “We never have. It’s not something that this administration subscribes to. I think those who allege that we’ve been involved in torture, or that somehow we violated the Constitution or laws with the terrorist surveillance program, simply don’t know what they’re talking about.” Asked if he authorized the waterboarding of Mohammed, Cheney says: “I was aware of the program, certainly, and involved in helping get the process cleared, as the agency [CIA] in effect came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.” Cheney says that waterboarding Mohammed produced critically important information: “There was a period of time there, three or four years ago, when about half of everything we knew about al-Qaeda came from that one source. So it’s been a remarkably successful effort. I think the results speak for themselves.” Cheney adds that the invasion of Iraq and the overthrow of Saddam Hussein were justified regardless of whether that nation possessed weapons of mass destruction. The only thing US intelligence got wrong, he says, “was that there weren’t any stockpiles. What they found was that Saddam Hussein still had the capability to produce weapons of mass destruction. He had the technology, he had the people, he had the basic feed stock.” [ABC News, 12/15/2008; ABC News, 12/15/2008] In the US, waterboarding has been considered a war crime at least as far back as World War II (see 1947, January 21, 1968, and November 29, 2007); in 2007, a judge concurred (see November 4, 2007). A former senior Justice Department official determined that waterboarding is torture (see Late 2004-Early 2005), as did a former deputy secretary of state who was subjected to waterboarding as part of his military training (see January 21, 2009) and a US senator who was a prisoner of war in Vietnam (see April 20, 2009). The CIA suspended the use of waterboarding in 2005 after determining that the technique was most likely ineffective and certainly illegal (see Shortly After April 28, 2004-February 2005), and banned it entirely in 2006 (see Between May and Late 2006); the CIA’s Inspector General determined that the practice was torture (see March 6, 2009). The FBI and DIA have forbidden their agents from using the technique (see May 13, 2004 and February 7, 2008). The US military banned its use in 2006 (see September 6, 2006). The king of Saudi Arabia will accuse the Bush administration of torturing prisoners in its custody (see April 24, 2009). The information derived from torturing Mohammed and other prisoners is widely considered unreliable (see August 6, 2007, April 16, 2009, December 18, 2008, and March 29, 2009), and may well have been initially designed to elicit false confessions (see April 22, 2009).

Entity Tags: Central Intelligence Agency, Al-Qaeda, Bush administration (43), Richard (“Dick”) Cheney, Saddam Hussein, Khalid Shaikh Mohammed

Timeline Tags: Torture of US Captives

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