This is reference material. I have gone through the two reports
“OLC Opinions on the CIA Detention and Interrogation Program” , the timeline released by the Senate Intelligence Committee on April 22,
http://intelligence.senate.gov/pdfs/olcopinion.pdf
and
“Inquiry into the Treatment of Detainees in U.S. Custody”, the Report of the Senate Armed Services Committee
http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf
and copied the significant references to campus faculty. Some of the text may be a little strange: lifted from PDF by character recognition.
Enjoy. Or not. Much of the substance regarding Rice has been reported, e.g.
“Rice gave early approval for CIA waterboarding, Senate report reveals”
http://www.guardian.co.uk/world/2009/apr/23/condoleezza-rice-cia-waterboarding
but primary source material is very powerful.
References to Rice and NSC Principals Committee in
OLC OPINIONS ON THE CIA DETENTION AND INTERROGATION PROGRAM
RELEASE OF DECLASSIFIED NARRATIVE DESCRIBING
THE DEPARTMENT OF JUSTICE OFFICE OF LEGAL COUNSEL’S OPINIONS ON
THE CIA’S DETENTION AND INTERROGATION PROGRAM
April 22, 2009
pp. 2-4
The capture of Abu Zubaydah and the initiation of the CIA detention and interrogation program
In late March 2002, senior Al-Qa’ida operative Abu Zubaydah was captured. Abu Zubaydah was badly injured during the firefight that brought him into custody. The CIA arranged for his medical care, and, in conjunction with two FBI agents, began interrogating him. At that time, the CIA assessed that Abu Zubaydah had specific information concerning future Al-Qa’ida attacks against the United States.
CIA records indicate that members of the National Security Council (NSC) and other senior Administration officials were briefed on the CIA’s detention and interrogation program throughout the course of the program.1 In April 2002, attorneys from the CIA’s Office of General Counsel began discussions with the Legal Adviser to the National Security Council and OLC concerning the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation. CIA records indicate that the Legal Adviser to the National Security Council briefed the National Security Adviser, Deputy National Security Adviser, and Counsel to the President, as well as the Attorney General and the head of the Criminal Division of the Department of Justice.
According to CIA records, because the CIA believed that Abu Zubaydah was withholding imminent threat information during the initial interrogation sessions, attorneys from the CIA’s Office of General Counsel met with the Attorney General, the National Security Adviser, the Deputy National Security Adviser, the Legal Adviser to the National Security Council, and the Counsel to the President in mid-May 2002 to discuss the possible use of alternative interrogation methods that differed from the traditional methods used by the U.S. military and intelligence community. At this meeting, the CIA proposed particular alternative interrogation methods, including waterboarding.
The CIA’s Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques. To enable OLC to review the legality of the techniques, the CIA provided OLC with written and oral descriptions of the proposed techniques. The CIA also provided OLC with information about any medical and psychological effects of DoD’s Survival, Evasion, Resistance and Escape (SERE) School, which is a military training program during which military personnel receive counter-interrogation training.
On July 13, 2002, according to CIA records, attorneys from the CIA’s Office of General Counsel met with the Legal Adviser to the National Security Council, a Deputy Assistant Attorney General from OLC, the head of the Criminal Division of the Department of Justice, the chief of staff to the Director of the Federal Bureau of Investigation, and the Counsel to the President to provide an overview of the proposed interrogation plan for Abu Zubaydah.
On July 17, 2002, according to CIA records, the Director of Central Intelligence (DCI) met with the National Security Adviser, who advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah. This advice, which authorized CIA to proceed as a policy matter, was subject to a determination of legality by OLC.
On July 24, 2002, according to CIA records, OLC orally advised the CIA that the Attorney General had concluded that certain proposed interrogation techniques were lawful and, on July 26, that the use of waterboarding was lawful. OLC issued two written opinions and a letter memorializing those conclusions on August 1, 2002.
pp. 6-9
Events after issuance of August 1, 2002 OLC opinion
According to CIA records, after receiving the legal approval of the Department of Justice and approval from the National Security Adviser, the CIA went forward with the interrogation of Abu Zubaydah and with the interrogation of other high-value Al-Qa’ida detainees who were then in, or later came into, U.S. custody. Waterboarding was used on three detainees: Abu Zubaydah, Abd al-Rahim al-Nashiri, and Khalid Sheikh Muhammad. The application of waterboarding to these detainees occurred during the 2002 and 2003 timeframe.
…
In the spring of 2003, the DCI asked for a reaffirmation of the policies and practices in the interrogation program. In July 2003, according to CIA records, the NSC Principals met to discuss the interrogation techniques employed in the CIA program. According to CIA records, the DCI and the CIA’s General Counsel attended a meeting with the Vice President, the National Security Adviser, the Attorney General, the Acting Assistant Attorney General for the Office of Legal Counsel, a Deputy Assistant Attorney General, the Counsel to the President, and the Legal Adviser to the National Security Council to describe the CIA’s interrogation techniques, including waterboarding. According to CIA records, at the conclusion of that meeting, the Principals reaffirmed that the CIA program was lawful and reflected administration policy.
According to CIA records, pursuant to a request from the National Security Adviser, the Director of Central Intelligence subsequently briefed the Secretary of State and the Secretary of Defense on the CIA’s interrogation techniques on September 16, 2003.
References to Rice and NSC Principals Committee
in
Inquiry into the Treatment of Detainees in U.S. Custody
Report of the
Committee on Armed Services
United States Senate
November 20, 2008
Released 23 April, 2009
p. xv
(U) Mr. Haynes was not the only senior official considering new interrogation techniques for use against detainees. Members ofthe President’s Cabinet and other senior officials attended meetings in the White House where specific interrogation techniques were discussed. Secretary of State Condoleezza Rice, who was then the National Security Advisor, said that, “in the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists.” Secretary Rice said that she asked Director of Central Intelligence George Tenet to brief NSC Principals on the program and asked the Attorney General John Ashcroft “personally to review and confirm the legal advice prepared
by the Office of Legal Counsel.” She also said
that Secretary of Defense Donald Rumsfeld participated in the NSC review ofthe CIA’s program.
(U) Asked whether she attended meetings where SERE training was discussed, Secretary Rice stated that she recalled being told that U.S. military personnel were subjected in training to
“certain physical and psychological interrogation techniques.” National Security Council (NSC) Legal Advisor, John Bellinger, said that he was present in meetings “at which SERE training was discussed.”
p. xx-xxi
(U) NSC Legal Advisor John Bellinger said that, on several occasions, Deputy Assistant
Attorney General Bruce Swartz raised concerns with him about allegations of detainee abuse at
GTMO. Mr. Bellinger said that, in tum, he raised these concerns “on several occasions with DoD officials and was told that the allegations were being investigated by the Naval Criminal Investigative Service.” Then-National Security Advisor Condoleezza Rice said that Mr. Bellinger also advised her “on a regular basis regarding concerns and issues relating to DoD detention policies and practices at Guantanamo.” She said that as a result she convened a “series of meetings of NSC Principals in 2002 and 2003 to discuss various issues and concerns relating to detainees in the custody ofthe Department of Defense.”
(U) Between mid-December 2002 and mid-January 2003, Navy General Counsel Alberto Mora spoke with the DoD General Counsel three times to express his concerns about interrogation techniques at GTMO, at one point telling Mr. Haynes that he thought techniques that had been authorized by the Secretary of Defense “could rise to the level of torture.” On January 15, 2003, having received no word that the Secretary’s authority would be withdrawn, Mr. Mora went so far as to deliver a draft memo to Mr. Haynes’s office memorializing his legal concerns about the techniques. In a subsequent phone call, Mr. Mora told Mr. Haynes he would sign his memo later that day unless he heard definitively that the use of the techniques was suspended. In a meeting that same day, Mr. Haynes told Mr. Mora that the Secretary would rescind the techniques. Secretary Rumsfeld signed a memo rescinding authority for the techniques on January 15, 2003.
(U) That same day, GTMO suspended its use of aggressive techniques on Khatani. While key documents relating to the interrogation remain classified, published accounts indicate that military working dogs had been used against Khatani. He had also been deprived of adequate sleep for weeks on end, stripped naked, subjected to loud music, and made to wear a leash and perform dog tricks. In a June 3, 2004 press briefing, SOUTHCOM Commander General James Hill traced the source oftechniques used on Khatani back to SERE, stating: “The staff at Guantanamo working with behavioral scientists, having gone up to our SERE school and developed a list of techniques which our lawyers decided and looked at, said were OK.” General
Hill said “we began to use a few ofthose techniques … on this individual.”
(U) On May 13, 2008, the Pentagon announced in a written statement that the Convening Authority for military commissions “dismissed without prejudice the sworn charges against Mohamed al Khatani.” The statement does not indicate the role his treatment may have played in that decision.
p. xxvi
Conclusion 2: Members of the President’s Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA’s interrogation program during that period.
pp. 16-19
II. Development of New Interrogation Authorities (U)
A. CIA’s Interrogation Program and the Interrogation of Abu Zubaydah (U)
(U) Abu Zubaydah was captured by Pakistani and CIA forces on March 28, 2002. According to former CIA Director George Tenet, once Zubaydah was in custody, the CIA “got into holding and interrogating high-value detainees” (HVDs) “in a serious way.”uo Then National Security Advisor Condoleezza Rice said that “in the spring of 2002, CIA sought policy approval from the National Security Council to begin an interrogationprogram for high-level al-Qaida terrorists.”lll Then-NSC Legal Advisor John Bellinger said that he asked CIA to have the proposed program reviewed by the Department of Justice and that he asked CIA to seek advice not only ~om DoJ’s Office of Legal Counsel (OLC) but also from the Criminal Division. 112 Ms. Rice said that she asked Director of Central Intelligence George Tenet to brief NSC Principals on the proposed CIA program and asked Attorney General Ashcroft “personally to review the legality of the proposed program. ll3 She said that all ofthe meetings she attended on the CIA’s interrogation program took place at the White House and that she understood that DoJ’s legal advice “was being coordinated by Counsel to the President Alberto Gonzales.,,114
(U) According to President Bush, the agency developed an “alternative set” of ,”tough” interrogation techniques, and put them to use on Zubaydah and other HVDs. 115 Though virtually all of the techniques that were used on Zubaydah remain classified, CIA Director Michael Hayden confirmed that waterboarding was used on Zubaydah. 116 Assistant Attorney General for the Office of Legal Counsel (OLC) Steven Bradbury testified before Congress that the “CIA’s use ofthe waterboarding procedure was adapted from the SERE training program.,,117 When asked whether she was present for discussions about physical and/or psychological pressures used in SERE training, Secretary Rice recalled “being told that U. S. military personnel were subjected in training to certain physical and psychological interrogation techniques.” 118 Mr. Bellinger, the NSC Legal Advisor, stated that he was “present in meetings at which SERE training was discussed.,,119
(U) Public reports have identified a retired U.S. Air Force SERE psychologist, Dr. James Mitchell, as having participated in the CIA’s interrogation of Zubaydah. 120 Dr. Mitchell, who retired from the Air Force in 2001, agreed to speak to the Committee about his time at DoD.
[redacted]
(U) An unclassified version of a May 2008 report by the Department of Justice (DoJ) Inspector General (IG) confirmed that FBI agents “initially took the lead in interviewing Zubaydah at the CIA facility,” but that “CIA personnel assumed control over the interviews” when they arrived at the facility. 125
[redacted]
(U) The FBI Special Agent told the DoJ Inspector General that he also “raised objections to these techniques to the CIA and told the CIA it was ‘borderline torture. “,130 According to the unclassified DoJ Inspector General’s report, a second FBI agent present did not have a “‘moral objection'” to the techniques and noted that he had “undergone comparable harsh interrogation techniques as part of the U.S. Army Survival, Evasion, Resistance and Escape (SERE) training.,,131
(U) According to the DoJ Inspector General’s report, FBI Counterterrorism Assistant Director Pat D’ Amuro gave the instruction to both FBI agents to “come home and not participate in the CIA interrogation.” The first FBI Special Agent left immediately, but the other FBI agent remained until early June 2002. 133 The report said that around the time of Zubaydah’s interrogation, FBI Director Robert Mueller decided that FBI agents would not participate in interrogations involving techniques the FBI did not normally use in the United States, even though the OLC had determined such techniques were legal. 134 Then-National Security Advisor Condoleezza Rice said that she had a “general recollection that FBI had decided not to participate in the CIA interrogations” but “was not aware that FBI personnel objected to
interrogation techniques used or proposed for use with Abu Zubaydah.” 135
pp. 31-35
E. The Department ofJustice Changes
the Rules (U)
(U) On August 1,2002, less than a week after JPRA sent the DoD General Counsel’s Office its memoranda and attachments, the Department of Justice issued two legal opinions signed by then-Assistant Attorney General for the Office of Legal Counsel (OLC) Jay Bybee.
(U) Before drafting the August 1,2002 opinions, Deputy Assistant Attorney General for the OLC John Y 00 had met with Counsel to the President Alberto Gonzales and Counsel to the Vice-President David Addington to discuss the subjects that he intended to address. 224 Then National Security Advisor Condoleezza Rice said that she understood that the Department of Justice’s legal advice to the CIA “was being coordinated by Counsel to the President Alberto Gonzales.,,225
(U) The first ofthe two August 1,2002 OLC memoranda, known to many as the “First Bybee” memo, presented OLC’s narrow interpretation of what constituted torture under U.S. law. The memo stated that the federal anti-torture statute of 1994 prohibited “only extreme acts” and that in order to constitute torture, physical pain would have to be equivalent in intensity to that accompanying “serious physical injury, such as organ failure, impairment of bodily functions or even death.,,226 For mental pain to rise to the level of torture, according to the memo, it would have to result in “si~flcant psychological harm of significant duration, e.g., lasting for months or even years.,,22 The First Bybee memo also found that the federal antitorture statute may not be applicable to interrogations ordered by the President if he acted pursuant to his Constitutional commander-in-chief powers. Further, the memo argued that even if the federal anti-torture statute could be construed to apply to such interrogations, the defenses of necessity and self-defense could potentially eliminate criminal liability under the statute. 228
(U) The First Bybee memo also effectively dispensed with the “specific intent” requirement of the federal anti-torture statute by narrowly defining that requirement. The federal anti-torture statute states that, in order to constitute torture, an act must be “specifically intended to inflict severe physical or mental pain or suffering.,,229 The First Bybee memo stated that in order “for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act.,,230 Under that interpretation, to violate the law, a person must expressly intend to commit torture and the memo stated that “knowledge alone that a particular result is certain to occur does not constitute specific intent.”
(U) Jack Goldsmith, who succeeded Jay Bybee as Assistant Attorney General of the OLC
in 2003, described the First Bybee memo’s conclusions and their effect:
[V]iolent acts aren’t necessarily torture; if you do torture, you probably have a
defense; and even if you don’t have a defense, the torture law doesn’t apply if you
act under color of presidential authority. CIA interrogators and their supervisors,
under pressure to get information about the next attack, viewed the opinion as a
‘golden shield,’ as one CIA official later called it, that provided enormous
comfort. 231
(U) The second August 1,2002 OLC legal opinion was also signed by Assistant Attorney General Jay Bybee. 232 According to a declaration made to the United States District Court for
the Southern District ofNew York. by the Information Review Officer for the CIA, the so-called “Second Bybee” memo is an I8-page legal memorandum from the OLC to the Office of General
Counsel of the CIA containing “information relating to the CIA’s terrorist detention and interrogation program” and “advice to’ the CIA regarding potential interrogation methods.” 233 According to the filing, the CIA requested the legal guidance from the Department of Justice. 234 A February 1, 2005 letter from the Justice Department to Senator Arlen Specter, then-Chairman of the Senate Judiciary Committee, stated that the Second Bybee memo gave the CIA “specific advice concerning specific interrogation practices, concluding that they are lawful.” 235 And the unclassified report of the Department of Justice Inspector General explained that the opinion analyzed “specific techniques approved for use on Zubaydah includ[ing] waterboarding … ,,236
[redacted]
John Bellinger, the NSC Legal Adviser, said that he “expressed concern that the proposed CIA interrogation techniques comply with applicable u.s. law, including our international obligations. 238
(U) The Committee has been denied the Second Bybee memo and does not know which specific interrogation practices, other than waterboarding, were analyzed in the memo. A heavily redacted version ofthe Second Bybee memo, released on July 24, 2008, provides no further details about the specific interrogation practices that were analyzed by the OLC. 239 The unredacted sections only make clear that the OLC applied its analysis in the First Bybee memo to a set of (redacted) facts at issue in the Second Bybee memo.240 And while public sources have suggested that the OLC’s analysis applied to Zubaydah, then-Deputy Assistant Attorney General John Yoo suggested in recent testimony that it “perhaps” applied to others “similarly situated.,,241
(U) According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was “the vehicle” for getting the interrogation practices analyzed in the Second Bybee memo to the Department of
Justice.,,242
[redacted] Lt Col Baumgartner, the JPRA Chief of Staff, recalled sending a copy of the same information that he had sent to the DoD General Counsel – including the list of SERE techniques and Dr. Ogrisseg’s memo on the pS1.;chological effects of Air Force SERE training and on waterboarding — to [redacted] attorney. 43 Mr. Haynes, the DoD General Counsel, recalled that in the context of reviewing the list of SERE techniques provided to his office, that he may have been “asked that information be given to the Justice Department for something they were working on.,,244
(U) With respect to the issues addressed in Dr. Ogrisseg’s memo relating to the psychological effects of resistance training, Mr. Haynes said that he knew that there was a government interest in that subject, but that he did not know if that information was used as support in any OLC legal analysis, and ifhe did know, he did not recall. 245
(U) Then-NSC Legal Advisor John Bellinger said that some of the legal analysis of proposed interrogation techniques prepared by the DeEartment of Justice referred to ”the psychological effects of military resistance training.” 46 In fact, Jay Bybee, the Assistant Attorney General who signed the two August 1,2002 opinions, said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Y 00 and two other OLC attorneys. Judge Bybee said the assessment – which to the best of his recollection had been provided by the CIA – informed the August 1, 2002 OLC legal opinion that has not been released publicly.247 In his June 26, 2008 testimony before the House Judiciary Committee, John Y00 refused to say whether or not he ever discussed or received information about SERE techniques as the August 1, 2002 memos were being drafted. 248
(U) While 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,” the August 1,2002 memos were not the only occasion on which DOJ provided legal
advice on the CIA’s interrogation program. 249 John Bellinger, the NSC Legal Advisor, said that
he understood t
hat in 2002 and 2003, the OLC provided “ongoing advice to CIA regarding CIA’s
interrogation program.,,250 And then-National Security Advisor Condoleezza Rice said that she
was present at “several” meetings in the White House at which Mr. Yoo provided legal advice. 251 Ms. Rice said that she asked Attorney General John Ashcroft “personally to review and confIrm” DoJ’s legal guidance. 252
pp. 109-110
E. National Security Council (NSC) Principals Discuss DoD Interrogations
(U) In a June 9, 2008 letter to the DoJ Inspector General, John Bellinger the former NSC Legal Advisor, stated that he “repeatedly asked the Defense Department about conditions and
detention policies at Guantanamo Bay” and that he “specifically raised concerns about interrogations practices used at Guantanamo, including concerns raised by the Department of
Justice. ,,851
(U) Mr. Bellinger told the Committee that Deputy Assistant Attorney General Bruce Swartz raised concerns with him “about allegations of abuse of detainees at Guantanamo.,,852 Mr. Bellinger said that Mr. Swartz called him on “several occasions” to express his concerns and that, in response, he “raised these concerns on several occasions with DoD officials and was told that the allegations were being investigated by the Naval Criminal Investigative Service.,,853 He said that then-National Security Advisor Condoleezza Rice “convened a series of meeting of NSC Principals in order to ensure that concerns about conditions and other issues relating to Guantanamo were fully discussed with the Department of Defense and other agencies.,,854
(U) Secretary Rice confirmed Mr. Bellinger’s account, stating that he advised her “on a regular basis” regarding concerns and issues relating to Department of Defense detention policies and practices at Guantanamo. 855 She said that, as a result she “convened a series of meetings of NSC Principals in 2002 and 2003 to discuss various issues and concerns relating to detainees in the custody of the Department ofDefense.,,856