Summary

It is now well established that following the attacks on the United States on September 11, 2001, the US Central Intelligence Agency (CIA) operated a global, state-sanctioned program in which it abducted scores of people throughout the world, held them in secret detention—sometimes for years—or “rendered” them to various countries, and tortured or otherwise ill-treated them. While the program officially ended in 2009, the cover-up of these crimes appears to be ongoing.

Many detainees were held by the CIA in pitch-dark windowless cells, chained to walls, naked or diapered, for weeks or months at a time. The CIA forced them into painful stress positions that made it impossible for them to lie down or sleep for days, to the point where many hallucinated or begged to be killed to end their misery. It used “waterboarding” and similar techniques to cause near suffocation or drowning, crammed detainees naked into tiny boxes, and prevented them from bathing, using toilets, or cutting their hair or nails for months. “We looked like monsters,” one detainee said of his appearance while in CIA custody.

Much new information about detention and interrogation in the CIA program became public with the release in redacted form of the 499-page summary of the Senate Select Committee on Intelligence report in December 2014 (“Senate Summary”). The Senate Summary reported that the CIA subjected at least five detainees to “rectal feeding,” described in one case as infusing the pureed contents of a lunch tray into the detainee’s rectum via a medical tube, done “without evidence of medical necessity.” The Senate Summary also found that during a waterboarding session, one detainee became “completely unresponsive, with bubbles rising through his open, full mouth.” The CIA forced some detainees to stand for days on end without sleep while they had broken bones in their legs and feet, even though CIA personnel knew this would cause them long-term physical injury. A CIA cable described one detainee as "clearly a broken man" and "on the verge of complete breakdown."

The US government has not adequately accounted for these abuses. It has an obligation under international law to prosecute torture where warranted and provide redress to victims, but it has done neither. No one with real responsibility for these crimes has been held accountable and the government has actively thwarted attempts on the part of victims to obtain redress and compensation in US courts.

The Obama administration asserted that it conducted a criminal investigation of the CIA program through a Department of Justice inquiry led by a career prosecutor, Assistant US Attorney John Durham. The Durham investigation closed on August 30, 2012 without bringing any criminal charges. The apparent failure of the investigation to question current or former detainees undercuts any claims that it was thorough or credible.

As set out in this report, Human Rights Watch concludes there is substantial evidence to support the opening of new investigations into allegations of criminal offenses by numerous US officials and agents in connection with the CIA program. These include torture, assault, sexual abuse, war crimes, and conspiracy to commit such crimes. In reaching this conclusion, we have drawn on our own investigations, media and other public reports, and the declassified information in the Senate Summary. But more evidence exists that has yet to be made public.

We believe that an independent and impartial investigation that has access to the full Senate report, other information that the government continues to keep classified, and interviews with current and former detainees, would yield further evidence of crimes and identify more suspects than we do here.

US officials who played a role in the process of creating, authorizing, and implementing the CIA program should be among those investigated for conspiracy to torture as well as other crimes. They include: Acting CIA General Counsel John Rizzo, Assistant Attorney General for Office of Legal Counsel (OLC) Jay Bybee, OLC Deputy Assistant Attorney General John Yoo, an individual identified as “CTC Legal” in the Senate Summary, CIA Director George Tenet, National Security Legal Advisor John Bellinger, Attorney General John Ashcroft, White House Counsel Legal Advisor Alberto Gonzales, Counsel to the Vice President David Addington, Deputy White House Counsel Timothy Flanigan, National Security Advisor Condoleezza Rice, Defense Department General Counsel William Haynes II, Vice President Dick Cheney, and President George W. Bush. In addition, James Mitchell and Bruce Jessen, CIA psychologist contractors who devised the program, proposed it to the CIA, and helped carry it out, should also be investigated for their role in the initial conspiracy.

We believe there is also sufficient evidence to investigate others who were not necessarily part of the initial conspiracy but who later joined it. Individuals can join an already existing conspiracy if they are aware of the conspiracy’s unlawful aims, in this case torture, and take steps intended to help the conspiracy succeed. These would include those who reauthorized the program after the legal memos endorsing it—the “Torture Memos”— were withdrawn, those who supplied false information to the Justice Department upon which the Justice Department relied in providing reauthorization, and those who later oversaw operation of the CIA program.

Others should not only be investigated for torture but also for offenses such as war crimes, assault, and sexual abuse. Even if individuals who carried out the torture can be said to have reasonably relied in good faith upon OLC memos or CIA guidance to justify their conduct—which, as detailed below, there is serious reason to doubt—considerable evidence exists that CIA officers and interrogators tortured detainees in ways that went beyond what was authorized.

This report also considers and rebuts arguments that barriers to prosecution under US law—such as statutes of limitation, certain defenses, or a “specific intent” requirement—might make it impossible to pursue criminal cases.

The failure to credibly investigate and prosecute torture committed in any territory under US jurisdiction violates US obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and other treaties to which the US is a party. Other countries and entities should open their own investigations into CIA torture and should exercise universal jurisdiction, where applicable, over US nationals and others implicated in torture or other abuses. Additionally, countries that were complicit or otherwise unlawfully assisted the CIA program should also conduct investigations into the alleged illegal conduct of their own nationals.

Besides violating international law, the US government’s inaction in the face of clear evidence of torture sends a message to future US policymakers and officials that they too can commit torture and other ill-treatment and not fear being held accountable. Several presidential candidates for the 2016 elections have already indicated they would consider using so-called “enhanced interrogation techniques” if they were to be elected.

Holding government officials accountable for serious abuses is never easy; when high-level officials are involved, it can be politically divisive. But Human Rights Watch research over the past 25 years in dozens of countries has shown that forgoing criminal accountability carries a high price. (See particularly Human Rights Watch, Selling Justice Short (2009)). Lack of accountability may fuel future abuses and weaken the rule of law.

Globally, the US unwillingness to prosecute CIA torture weakens US authority to oppose torture and other abuses abroad, provides a ready excuse for countries unwilling to prevent or prosecute torture in their own countries, and undermines global respect for the rule of law.

The egregious abuse of prisoners in CIA custody and failure to hold anyone accountable has undermined global efforts to fight terrorism. Detainee abuse, including abuse of prisoners by the US military, has been used by terrorist groups to obtain new recruits and contributed to anti-US sentiment in many countries.

Ultimately, the guilt or innocence of any of the US officials involved in organizing or carrying out the CIA program will rest with the criminal justice system. Suspects should be tried in criminal proceedings that comport with international due process and fair trial standards, including allowing them to challenge evidence, present defenses, and raise mitigating circumstances. But before these fundamental institutions of democratic rule can even be set in motion, US criminal justice officials need to first conduct credible investigations and bring charges where appropriate, requirements that have gone unmet for well over a decade since the first revelations of CIA torture after 9/11.

This report is organized into three parts—credible investigations and prosecutions, redress, and international justice—reflecting different steps the US and other countries should take to pursue accountability for CIA program abuses.

Credible Investigations and Prosecutions: The first part of this report examines some of the specific federal criminal charges that could be brought against US officials involved the CIA program. The most senior responsible officials should not be able to avoid culpability on the grounds that they relied on advice from White House lawyers stating that the interrogation techniques used on detainees did not amount to torture. This defense is weak not only because the legal reasoning was so poor that it was soon repudiated by other Bush administration lawyers and virtually all other legal professionals, but also because, in this case, those involved in the CIA program themselves helped create the legal advice being used as a shield to protect them from accountability for their alleged crimes.

Officials in the CIA and at the White House should have known, from the moment the techniques in question were proposed, that they were violating the federal Torture Statute: the techniques were reverse-engineered from a program designed to train US special forces to endure torture, some were explicitly designated as torture by US courts, and many were banned in the US Army Field Manual for Intelligence Interrogations in effect at the time the abuse was approved.

And there is evidence in the Senate Summary that officials actually knew that the techniques violated the Torture Statute. According to a Department of Justice Office of Professional Responsibility investigation (OPR investigation), the CIA, through its acting General Counsel John Rizzo, expressed concern about “criminal liability” under the Torture Statute and sought, but failed to obtain, a guarantee from the Justice Department’s Criminal Division that employees would not be prosecuted for use of the techniques.

The Senate Summary also contains a reference to a draft letter to the attorney general from “CTC Legal” —a likely reference to someone in the legal department of the CIA’s counterterrorism center—acknowledging that the “aggressive methods” of interrogation the CIA was planning would violate the Torture Statute. While there are no records showing that the letter was sent, its existence shows that at least some CIA advisers believed from the beginning that the techniques being proposed were illegal. Finally, the OPR investigation also noted that in mid-2002 senior White House and CIA officials appear to have been involved in shaping the contents of the soon-to-be issued legal memos authorizing abusive interrogation techniques, with sections likely added at their request after the Justice Department refusal to give a non-prosecution guarantee.

Viewed in this context, there is strong reason to conclude that the infamous and since discredited “Torture Memos” issued by the OLC in August 2002 authorizing techniques that many others had previously determined to be torture, should be viewed as little more than a legal fig leaf. “The position taken by the government lawyers in these legal memoranda amount to counseling a client as to how to get away with violating the law,” said John Gibbons, former chief judge of the US Court of Appeals for the Third Circuit, after the memos had been released.

Other White House and CIA officials and OLC lawyers later joined the conspiracy by knowingly keeping in the dark government officials they knew would oppose the CIA program, allowing the conduct to continue despite knowledge detainees were being mistreated, and reauthorizing the program once original authorizations were revoked after news of torture by the US military at the Abu Ghraib prison in Iraq became public.

CIA personnel also engaged in practices that went well beyond the illegal techniques “authorized” by the Torture Memos. Practices such as “rectal feedings,” use of water to induce near suffocation, and certain painful stress positions, were either not authorized or administered in ways that were not authorized. As such, the memos should not even be contemplated as a defense for such actions.

Lastly, while the five-year federal statute of limitations for most federal crimes might be thought to present an insurmountable bar to prosecution, it should not apply to many of the crimes committed as part of the CIA program. It is not a bar to prosecutions for torture or conspiracy to torture when there is a “foreseeable risk that death or serious bodily injury” may result, or to prosecutions for the types of sexual abuse allegedly committed by CIA program personnel. For all federal conspiracy charges, moreover, the statute of limitations can be extended if perpetrators conceal a central component of the conspiracy, as seems to have been the case here.

Redress: The second part of this report looks at the US government’s obligation to provide redress to victims of abuse, including compensation and rehabilitation services, guarantees of non-repetition (including through legislation and public statements), and public disclosure of relevant information. The Convention against Torture and other treaties require the US to provide redress for torture and other serious abuses, including arbitrary detention and enforced disappearance. Not only has the US failed to provide compensation or any other form of redress to detainees in CIA custody, the Obama administration has blocked every attempt by former detainees to bring civil suits in US courts by invoking doctrines of state secrecy, state immunity, and national security.

International Justice: The third part of this report looks at the efforts of other governments to investigate CIA torture and related abuses that occurred in their countries. Investigations in other countries have targeted US officials as well as national officials alleged to have participated in or been complicit in CIA abuses.

The duty to prosecute serious violations of international law lies primarily with domestic judicial authorities in the country with principal jurisdiction over the crime. This normally requires having a territorial link to the crime or the persons involved. However, third countries can also investigate and prosecute on the basis of universal jurisdiction—laws embodying the idea that certain crimes, including torture and war crimes, are so egregious that every state has an interest in bringing perpetrators to justice.

The Convention against Torture contains a universal jurisdiction clause that places an affirmative duty on governments to prosecute suspects who come on their territory regardless of where the torture took place. The Geneva Conventions of 1949 relating to war crimes contains similar provisions. The US government’s failure to conduct its own thorough and credible investigations into allegations of torture increases the importance of states exercising universal jurisdiction for crimes alleged to have been carried out as part of the CIA program.

Although the United States is not a party to the International Criminal Court (ICC), the ICC may also be an avenue to accountability for alleged abuses by US nationals in Afghanistan. The ICC is conducting a preliminary examination of the situation in Afghanistan, which includes alleged torture of detainees by US armed forces there. Whether the preliminary examination will lead to a formal investigation was not known as this writing.

Methodology

The report was assembled using the numerous public source materials that now exist documenting CIA renditions, detentions, torture and other ill-treatment. This includes our own Human Rights Watch reporting and the declassified information in the Senate Summary, but also books, media, and other public reports, both by governmental and non-governmental organizations. It is also informed by nearly 15 years of our own research, reporting and analysis on US counterterrorism abuses post 9/11.

We took this extensive factual record and supplemented it with legal research into the various charges that could be brought for certain offenses under US law. In doing so we focused on the main charges that would be available for the conduct in question and did not include other charges such as obstruction of justice or false reporting that do not center on the actual conduct in question. We also tried to include the most viable charges and intentionally excluded those for which we thought a case might be made but for which it was not clear whether there was sufficient evidence to support. We also supplemented the factual record with legal research into civil remedies and international law.

Key Recommendations

To US Authorities

The Attorney General, with the support of the president, should appoint a special prosecutor to conduct a thorough, independent, and credible criminal investigation into the CIA torture that examines all evidence, including statements from current and former detainees.

The president should acknowledge wrongdoing, apologize to victims of torture, and devise policies ensuring that victims receive appropriate redress, compensation, and rehabilitation services.

The president should declassify the full Senate Intelligence Committee Report on the CIA rendition, detention, and interrogation program, redacting only what is strictly necessary to protect national security, to ensure there is a full public accounting of government wrongdoing and that victims of torture can obtain redress.

To Foreign Governments

Governments that provided support to the CIA program should ensure impartial and independent criminal investigations of complicity in torture and other criminal offenses allegedly committed in their countries by national and US officials in connection with CIA renditions or interrogations, and prosecute those implicated in crimes. Unless and until US officials show a willingness to pursue meaningful accountability for CIA torture, other governments should exercise universal jurisdiction or other forms of jurisdiction provided under international and domestic law to investigate and, evidence permitting, prosecute US officials for their alleged role in torture and other abuses.

I. Background

Short History of the CIA Program

The September 11, 2001 attacks on the United States took the lives of nearly 3,000 people and had an impact that reverberated, and still reverberates, around the globe. Following those attacks, President George W. Bush publicly sought and soon obtained from Congress the authority to use force against those responsible for the attacks and those assisting them.

Six days after the attacks, on September 17, Bush secretly issued what is known as a Memorandum of Notification (MON)—a covert action directive that granted the CIA unprecedented counterterrorism authority, including to capture and detain individuals "posing a continuing, serious threat of violence or death to U.S. persons and interests or planning terrorist activities." The MON made no reference to interrogations or coercive interrogation techniques.

The CIA immediately began developing a plan to detain individuals under the MON. Senior agency leadership acknowledged that the CIA had limited experience running detention facilities and considered acquiring expertise from the Defense Department and the Federal Bureau of Prisons. In late March 2002 the CIA captured Abu Zubaydah, who became its first detainee. Plans then intensified to establish the use of certain aggressive interrogation techniques. Arguments ensued between the Federal Bureau of Investigation (FBI) and the CIA over the types of interrogation techniques that should be used. The FBI wanted to use methods that they had developed for years that did not involve violence or force. FBI agents and officers involved in these discussions said the aggressive techniques the CIA sought to use were not only ineffectual, but would taint any evidence they acquired for use in criminal trials.

The CIA proposed the use of 12 interrogation techniques. The techniques, proposed by two CIA contractors, had previously been used by the military’s Joint Personnel Recovery Agency (JPRA) to train US Special Forces to better endure interrogation methods used by enemies who did not abide by the Geneva Conventions.

The 12 “enhanced interrogation techniques” proposed were: (1) the attention grasp; (2) “walling”; (3) facial hold; (4) facial slap; (5) cramped confinement; (6) wall standing; (7) stress positions; (8) sleep deprivation; (9) waterboarding; (10) use of diapers; (11) use of insects; and (12) mock burial. When it was clear that the CIA was going to use such methods, the FBI refused to participate in any further interrogations using “enhanced interrogation techniques” or participate in any further discussions about the matter.

As detailed below, the decision to use these techniques was discussed extensively among senior US officials, including but not limited to: CIA General Counsel John Rizzo, Assistant Attorney General and OLC head Jay Bybee, OLC Deputy Assistant Attorney General John Yoo, an unnamed individual identified as “CTC Legal” in the Senate Summary, CIA Director George Tenet, National Security Legal Advisor John Bellinger, Attorney General John Ashcroft, White House Counsel Alberto Gonzales, Counsel to the Vice President David Addington, Deputy White House Counsel Timothy Flanigan, and National Security Advisor Condoleezza Rice.

Before the CIA used the full panoply of these techniques on Abu Zubaydah, the agency sought a guarantee that the Justice Department Criminal Division would not prosecute any US personnel involved. The Criminal Division refused. Following this, the CIA began working intensely with the attorneys in the OLC to obtain memos that would authorize the techniques proposed. (Meetings and deliberations about the content of the memos are discussed in detail below.) Two memos were eventually issued on August 1, 2002. The principal author of the memos was Yoo and they were signed by Assistant Attorney General Jay Bybee.

The first memo was addressed to Gonzales and became known as the “Bybee I Memo.” It was unclassified and analyzed the domestic and international legal prohibitions on torture and, among other things, articulated an exceedingly high threshold, later repudiated by the Bush administration, for what constitutes torture: physical pain equivalent in intensity to that accompanying “organ failure, impairment of bodily function, or even death.” It did not discuss the legality of any particular technique nor the legality of applying any type of technique on a specific detainee. It was not made public until it was leaked to the media in June 2004.

The second memo, which was classified, was addressed to John Rizzo but also signed by Bybee, became known as the “Bybee II Memo.” It was not released publicly until 2009 and discussed the legality of each of the techniques individually, approving 10 specific interrogation tactics proposed for use on detainee Abu Zubaydah.[15] (“Diapering” and the “mock burial,” though initially proposed, were not discussed in the memo). These two memos collectively have publicly become known as the “Bybee Memos,” the “August 1, 2002 OLC Memos,” or the “Torture Memos.”

After these memos were issued, the CIA began using what they called “enhanced interrogation techniques” with little guidance. The CIA now admits that its guidance was poor during this period. At some point after “enhanced interrogation techniques” and detentions were contemplated, the CIA began opening and operating a number of secret detention centers around the world. The US government has still not disclosed exactly where and how many sites it operated. Though a number of CIA sites are identified in the Senate Summary, they are designated using pseudonyms for their locations. But the media and others have long reported that the CIA operated detention centers in at least Afghanistan, Lithuania, Poland, Romania, and Thailand. Additionally, the CIA worked in conjunction with a number of other countries to operate, run or use detention sites in locations that included but were not limited to Morocco, Jordan, Pakistan, and Egypt.

During the course of the CIA program, the agency held at least 119 individuals in CIA-run detention centers, according to the Senate Summary. This is a conservative estimate and does not include a number of detainees who were unlawfully rendered as part of the CIA program.

The full name for the CIA Program was the “Rendition, Detention and Interrogation” (RDI) program. Unlawful renditions were a part of the program but the Senate Summary did not address this aspect of it.[25] The summary lists only the names of 119 individuals it considers to be “detainees” in that there was “clear evidence of detention in CIA custody.”[26] Left off the list are an unknown number of individuals whom the CIA unlawfully rendered to countries where it was known or recognized as likely that they would be tortured, whether as part of their interrogation or as punishment.[27] Many of those rendered described being held by the CIA or by another government with the CIA’s cooperation, either before or after their transfer.[28]

Of the 119 individuals the CIA considers to have been CIA “detainees,” according to the Senate Summary, at least 26 were “wrongfully held,” and did not meet the CIA’s own standards for detention. “CIA records provide insufficient information to justify the detention of many other detainees.”

In November 2002, detainee Gul Rahman died from hypothermia after being shackled half-naked to a concrete floor overnight in CIA custody at a detention site in Afghanistan. His death spurred an investigation by the CIA Office of the Inspector General (OIG), including into the broader CIA program. The findings, issued in classified form in a May 2004 report (“CIA OIG Report”), were sharply critical of the both the CIA’s use of techniques in an authorized manner, and the use of techniques not authorized.

While the OIG investigation was ongoing, media outlets began reporting that the US was using abusive interrogation methods on detainees in secret detention centers. To counter these reports, the Bush administration began putting out a number of statements aimed at alleviating concerns that the US might be abusing or torturing prisoners. These statements attempted to discount any possibility that the US was using torture and to emphasize that all detainees were being treated humanely even if they were not, in the administration’s view, protected by international law.

These statements caused concern among the CIA leadership that other parts of the executive branch were not backing the CIA’s program. The CIA began to seek assurances from Secretary of State Rice, the OLC, and other executive branch departments that they continued to support the CIA program. This generated another series of high-level meetings during which the CIA secured reassurance that the White House and the Justice Department backed the program.

After the CIA OIG Report was issued, CIA Director Tenet suspended both the use of what were called “standard” interrogation techniques, as well as “enhanced interrogation techniques,” pending a legal and policy review. The CIA OIG Report also called for the CIA to justify the usefulness and necessity of the “enhanced interrogation” program.

Even before the OLC and the CIA approved the use of “enhanced interrogation techniques,” the US military had already begun using some of the tactics later authorized in the August 1, 2002 OLC Memos and had trained military interrogators in their use. Formal OLC and CIA approval set the stage for more widespread use of abusive techniques by the military.

In March 2004, reports and photographs emerged about detainee abuse by US military personnel at Abu Ghraib prison in Iraq causing a national scandal. And in June 2004, the Bybee I Memo was leaked to the media. By this time Yoo had left OLC, and Jack Goldsmith was named to replace him.

Goldsmith reexamined the August 1, 2002 memos and concluded that the Bybee I Memo was “riddled with error” and a “one-sided effort to eliminate any hurdles posed by the torture law.” On May 3, 2004, in an attempt to get reassurance from OLC that they still endorsed the use of “enhanced interrogation techniques,” Muller wrote Goldsmith asking that he reaffirm OLC approval of the techniques as well as approve new ones. On May 27, Goldsmith wrote back to Muller saying that he "strongly recommended” that the CIA suspend use of waterboarding and review steps taken to ensure that in actual practice any use of CIA techniques “adheres closely to the assumptions and limitations in the August 2002 opinion [the Bybee memos].” On June 15, 2004, Goldsmith withdrew the Bybee I Memo and submitted his letter of resignation the following day. Goldsmith kept in place OLC approval for all of the enhanced interrogation techniques other than waterboarding but subject to the assumptions, limitations, and safeguards laid out in the Bybee II Memo, which had not been withdrawn.

Daniel Levin, who took over as acting head of the OLC after Goldsmith’s departure, inherited the task of issuing replacement memos for the Bybee I and Bybee II memos. On August 6, 2004, he issued a memo authorizing waterboarding and on December 30, 2004, issued a new legal opinion to replace the unclassified Bybee I Memo. Levin’s replacement memo, like the Bybee I memo, analyzed the legal limits of the prohibitions on torture but it acknowledged that the prior legal reasoning was wrong. Levin planned to draft a new memo to replace the classified Bybee II Memo as well but he left the office in February 2005 before he had finished those memos.

The OLC deputy head, Stephen Bradbury, temporarily took over Levin’s vacant position. He issued two new memos, both on May 10, 2005, intended to replace the Bybee II classified memo. One discussed the legality of individual interrogation techniques and authorized all of the same techniques approved in the Bybee II memo, but with new legal reasoning (“Bradbury Individual Techniques Memo”). The memo also authorized several techniques that had not been the subject of OLC opinions but had already been used by the CIA, such as “water dousing” and “nudity.” The second May 10, 2005 memo addressed the techniques covered in the Bradbury Individual Techniques Memo but clarified that their use in combination with one another would not violate the Torture Statute (“Bradbury Combined Techniques Memo”). Though previously not approved by official OLC memo on any detainee other than Abu Zubaydah, and even then only in cursory fashion, the CIA had since the start of the program frequently used multiple “enhanced interrogation techniques” in combination. A third memo, issued on March 30, 2005, analyzed whether the techniques would violate the prohibition against cruel, inhuman, or degrading treatment or punishment prohibited under the Convention against Torture, and found that they would not (“Bradbury CIDT Memo”).

In December 2005, the US Congress passed the Detainee Treatment Act, which barred the use of cruel, inhuman, or degrading treatment or punishment against any detainee in US custody and required the Defense Department to follow the US Army Field Manual on Intelligence Interrogations when conducting interrogations.

In a speech on September 6, 2006, President Bush formally disclosed the existence of the CIA interrogation program to the public. He announced that a “small number” of detainees had been held by the CIA in locations that he could not disclose and praised the program for having “saved innocent lives.” He also announced that the remaining 14 detainees in CIA custody at the time would be sent to the military detention facility at Guantanamo Bay. But he did not end the CIA program at this time. He said it needed to continue because it was “crucial to getting lifesaving information.” As late as July 20, 2007, the OLC issued yet another memo authorizing the CIA to use techniques that were abusive, asserting that they would not violate US laws against torture and other ill-treatment or the newly enacted Detainee Treatment Act.

President Barack Obama, on his second full day in office on January 22, 2009, signed an executive order closing the CIA’s secret detention facilities and ending the use of “enhanced interrogation techniques.”

The CIA Program: What Was Known before the Senate Summary

Before release of the Senate Summary, substantial information had already been published about the CIA program. As early as December 2002, accounts began to emerge of the CIA subjecting detainees to stress positions, unlawful renditions, and other forms of abuse. Following these initial reports, various media outlets and human rights organizations sought to document CIA activities more extensively. As early as 2003, Human Rights Watch had already interviewed persons in Afghanistan with information about CIA detention and, in a series of reports on “Ghost Detainees,” we had published initial information on dozens of detainees who had disappeared into US custody.

Especially after news broke of torture and other abuse of detainees by the US military at Abu Ghraib, media outlets and rights organizations frequently reported on CIA abuse of detainees, US efforts to circumvent laws prohibiting torture and other ill-treatment, and the existence of secret CIA detention sites.

The US Military’s Approval and Use of Torture and Other Ill-Treatment The harm of CIA torture was compounded by the US military’s adoption of many of the CIA-approved interrogation techniques. The military’s use of the techniques dates to December 2001, when the Office of the Secretary of Defense inquired into the Survival, Evasion, Resistance, and Escape (SERE) program. SERE methods were being used by the military’s Joint Personnel Recovery Agency (JPRA) to train US Special Forces to endure interrogation methods used by enemy forces that did not abide by the laws of armed conflict. These techniques, many drawn from the experiences of US service members captured by North Korea during the Korean War, included stripping detainees naked for degradation purposes, exploiting cultural or religious taboos, use of forced standing, exposure to cold, and prolonged sleep deprivation. The CIA later drew on these same SERE techniques to create its “enhanced interrogation” program. In February 2002, JPRA personnel began providing training and written materials to personnel in or headed to Guantanamo and Afghanistan. In July the CIA proposed the use of SERE-derived interrogation techniques with the first detainee held by the CIA, Abu Zubaydah. In mid-September 2002, just after the OLC issued its first memo authorizing CIA torture, JPRA staff began training Guantanamo personnel in the use of abusive SERE school techniques. In late September 2002, a delegation of senior officials, including Defense General Counsel William Haynes, White House General Counsel Alberto Gonzales, CIA General Counsel John Rizzo, and Chief of the Criminal Division of the Justice Department Michael Chertoff, visited the military detention facility at Guantanamo to discuss how interrogations were being managed there. The evidence available suggests that the group encouraged the practices. By October 2002 Guantanamo commander Maj. Gen. Michael Dunlavey was requesting authority to use more aggressive interrogation techniques including stress positions; isolation for up to 30 days; deprivation of light and sound; exploiting individual phobias such as fear of dogs; forced grooming; use of scenarios designed to convince the detainee that death or severely painful consequences were imminent for him or his family; and waterboarding.

In 2003, several media outlets began to report on CIA interrogation techniques.[88] In March 2004 details of an army investigation into prisoner abuse in Iraq began to surface.[89] In April CBS published photos of the abuse at Abu Ghraib prison. And in May The New Yorker published an extensive expose about the abuse.[90] Then in June, one of the Bybee memos purportedly authorizing the CIA’s use of “enhanced interrogation techniques” was leaked to the media.[91]

Haynes submitted a memo to Rumsfeld asking that he approve most of the methods Dunlavey requested, with the exception of waterboarding. On December 2, 2002, Rumsfeld approved most of the recommended techniques and appended a handwritten note to his authorization of these techniques: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?” Roughly two weeks later after concerns about Rumsfeld’s order were raised with Navy General Counsel Alberto Mora, Mora in turn, raised his concerns with Haynes among others. After asserting pressure but still not receiving assurances that the orders would be rescinded, Mora met with Haynes warning him that the “interrogation policies could threaten Secretary Rumsfeld's tenure and could even damage the presidency.”[75] On January 15 2003, uncertain whether there would be any change to the interrogation policy, Mora delivered a draft memorandum to Haynes stating that the majority of the proposed techniques violated domestic and international laws, at minimum constituting “cruel and unusual treatment and, at worst, torture.” Mora told Haynes that he would not sign the memorandum unless Rumsfeld rescinded his order. Rumsfeld did so on January 15, 2003 but at the same time said that commanders could get approval for the techniques if they asked for it and provided justification. On April 16, 2003, Rumsfeld issued a new memorandum that, while more restrictive than the December 2002 rules, still allowed techniques that went beyond what the laws of war permitted, including isolation, dietary manipulation, and sleep adjustment. Because of President Bush’s February 7, 2002 decision to reject the applicability of the Geneva Conventions to Al-Qaeda and Taliban prisoners in Afghanistan, there was no overarching prescribed interrogation regime for prisoners held there. In late 2002, Special Mission Unit Task Force (SMU TF) officials from Afghanistan visited Guantanamo, compared notes on techniques from JPRA, and started drawing up a more formal list of techniques to be specifically authorized. A large portion of the SMU TF policies were based on Rumsfeld’s December 2, 2002 authorization and the legal reasoning behind the denial of wartime protections to Al-Qaeda and Taliban prisoners. In January 2003, in response to a Joint Staff inquiry from US Central Command, the US military command in Afghanistan submitted a list of interrogation techniques then in use in Afghanistan. The list included techniques “similar” to those Rumsfeld had approved for Guantanamo even though that memo had been technically rescinded. When the command in Afghanistan received no complaints, it interpreted the silence to mean the techniques were unobjectionable. Many US military and intelligence personnel sent to Iraq then based their interrogation policies on those formulated by the SMU TF in Afghanistan. For example, Capt. Carolyn Wood, who had helped develop interrogation policies for regular US forces in Afghanistan in late 2002—and who was implicated in the beating deaths of two detainees there in December 2002—was stationed in Iraq and put in command of Abu Ghraib interrogation operations in mid-2003. In July 2003, Captain Wood drafted a proposed interrogation policy based on the Afghanistan and Iraq SMU TF guidelines. This included the presence of military working dogs, stress positions, sleep management, loud music, and light control. Around the same time, in August 2003, Gen. Geoffrey Miller, who oversaw Guantanamo interrogation efforts, went to Iraq to conduct a counterterrorism assessment. He brought with him interrogation policy guidelines for Guantanamo that he gave to Gen. Ricardo Sanchez, the overall US military commander for Iraq, and proposed them as a model. Sanchez used both Wood’s proposed policy and the Guantanamo guidelines to come up with interrogation guidelines for Iraq that he issued on September 14, 2003. The abusive techniques approved, along with other techniques used by the SMU TF units, were among those being used at Abu Ghraib prison when the scandal connected to abuse there became public in 2004. The US military record on criminal accountability for abuse of detainees post-9/11 has been abysmal. In 2007, Human Rights Watch collected information on some 350 cases of alleged abuse involving more than 600 military personnel. Few had been punished. The highest-ranking officer prosecuted for the abuse of prisoners was a lieutenant colonel, Steven Jordan, court-martialed in 2006 for his role in the Abu Ghraib scandal. He was acquitted in 2007.

In subsequent years, media outlets and human rights groups documented or obtained information relating to the abusive interrogations of roughly 25 CIA detainees,[92] but information on the treatment of scores of other detainees remains unavailable. Freedom of Information Act requests and lawsuits brought by the American Civil Liberties Union (ACLU) and others compelled the government to disclose a number of documents related to the CIA program.[93] But many other documents remain classified, including the September 17, 2001 Memorandum of Notification purportedly granting the CIA authority to covertly capture and detain individuals posing “a continuing, serious threat of violence or death to U.S. persons and interests or planning terrorist activities," and 11 CIA Office of Inspector General reports related to the CIA program.[95]

Justice Department Inquiry into CIA Torture

In 2007 reports emerged that the CIA had destroyed 92 videotapes depicting two CIA detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri, being interrogated and subjected to the use of CIA torture techniques—including waterboarding. In 2008, the US Department of Justice appointed Special Prosecutor John Durham to look into the tape destruction.[97] After Barack Obama took office, his attorney general, Eric Holder, expanded the Durham investigation to include a preliminary investigation into whether federal laws were violated as part of the CIA interrogation program.

Holder said his decision to expand the investigation was based in part on a report produced by the Justice Department’s Office of Professional Responsibility (OPR) finding that two OLC attorneys, John Yoo and Jay Bybee (see below), had engaged in professional misconduct in authorizing the CIA’s use of “enhanced interrogation techniques” and recommending that prior determinations by the Justice Department not to prosecute CIA abuses be reexamined. (The OPR Report had not been made public at the time of Holder’s announcement and was not disclosed until February 2010). It was also based on a then still-classified 2004 CIA Inspector General report.

Holder, however, also set strict limits to the Durham inquiry, making clear that “the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.” That preliminary investigation looked into 101 cases of alleged CIA abuse.

On November 9, 2010, Holder announced that the Justice Department would not press charges against anyone for destruction of the CIA videotapes depicting the interrogation of two detainees. On June 30, 2011, he announced the closure, with no charges filed, in 99 of the 101 cases. Holder provided little explanation for the decision not to press charges other than to say that Durham had concluded that many of the 101 detainees were never in CIA custody. If that is the case it raises questions about who had custody of the detainees, where they were, and why this meant CIA personnel were not responsible for any wrongdoing. Holder also said that he would open full investigations into the cases of the two remaining detainees, both of whom had died in US custody.[109] A year later, on August 30, 2012, Holder announced the closure of these cases without bringing any charges.[110] In closing the investigation, Holder said he made his decision because “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”[111]

The Durham investigation was primarily focused only on CIA abuse that went beyond what was authorized. This limitation was always too narrow in scope because the authorizations not only permitted interrogation methods in violation of US and international law, but also because they appear to have been designed specifically to create a legal escape hatch for what would otherwise be the illegal use of torture.

Even within the administration-imposed restraints, the investigation appears wholly inadequate. There is no evidence that Durham investigators interviewed any of the detainees in the CIA program, whether still detained or since released.[113] In November 2014 five former CIA detainees who alleged that they had been badly tortured by the CIA asserted in a public letter that Durham never spoke to them during his investigation. They urged the UN Committee against Torture to question the US delegation about this during the impending review of US compliance with the Convention against Torture. Other organizations working with former detainees held by the CIA and detainee defense counsel also report that the Durham team never spoke to their clients.

When the Committee against Torture, charged with reviewing state compliance with the Convention against Torture, asked the US delegation whether any former detainees had been interviewed, the delegation was unwilling to provide an answer. Instead, David Bitkower, deputy assistant attorney general in the Justice Department’s Criminal Division, newly disclosed that the Durham investigation had interviewed approximately 96 witnesses, but he would not say whether any of them were former CIA detainees.[117] The US response provoked the following statement from the committee:

The Committee regrets … that the delegation was not in a position to describe the investigative methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed. Thus, the Committee remains concerned about information before it that some former CIA detainees, who had been held in U.S. custody abroad, were never interviewed during the investigations, casting doubts as to whether this high-profile inquiry was properly conducted. [118]

Click to expand Image Barbed wire fence surrounding a military area near Stare Kiejkuty village, where Polish prosecutors are investigating allegations the CIA ran a secret “black site.” © 2014 REUTERS/Kacper Pempel

New Details in the Senate Summary

The SSCI report is the product of six years of investigation by Senate Intelligence Committee staff members who had access to more than six million pages of CIA materials. These included operational cables, intelligence reports, internal memoranda, and emails, briefing materials, interview transcripts, contracts, and other records. Notably, the staff members did not have access to more than 9,400 documents that the CIA withheld, reportedly asserting the executive privilege on behalf of the White House. The full 6,700-page report was completed in December 2012.[121] However, it took nearly two years for the Senate Intelligence Committee to decide to release the Summary and for the US government to conduct declassification review. The Summary, still partially redacted, was released on December 9, 2014. It is 499 pages long; the remainder of the full report remains classified.

The Summary—and likely the full report—focuses exclusively on the CIA; it does not cover abuses by other US government agencies, including the military. It also does not address the issue of CIA renditions abroad. The Summary’s main findings are that the use of “enhanced interrogation techniques” was not an effective means of gathering useful intelligence; that the CIA inflated claims that the techniques were necessary to thwart terrorist attacks; and that the techniques used were far more brutal than previously thought.

The Summary covers many facts that were already well-known, but also includes many new details, including:

A list of all detainees that the US government says it detained in the CIA detention and interrogation program. However, the US has still not released the names and identities of detainees the CIA did not itself hold for a significant time period but instead rendered to other countries.

New details about the methods used in the CIA program. For example, the Summary discloses that the CIA subjected detainees to “rectal feedings,” in which CIA personnel forcibly inserted tubes into the rectums of detainees and infused pureed food into their bodies, which the Summary and medical experts conclude was not medically necessary.

Evidence of interrogators’ intent to cause severe pain and suffering. This includes, for example, details on how interrogators used excessively large tubes to conduct rectal feedings, or forced detainees into positions that required them to stand for days in order to deprive them of sleep when they already had broken bones in their legs, knowing it would cause permanent and lasting physical injury.

The disclosure that the CIA paid the company that Mitchell and Jessen formed and was put in charge of implementing, carrying out and evaluating the effectiveness of the CIA program, $81 million dollars.

The disclosure that Federal Bureau of Prisons officials visited one of several CIA detention facilities in November 2002 in Afghanistan and were “wow’ed” by the degree of sensory deprivation there.

Accounts of multiple detainees being subjected to water torture in ways that, according to an interrogator, were virtually “indistinguishable” from waterboarding and were unauthorized. Such accounts and prior reporting contradict Senate testimony by then-CIA Director Michael Hayden that only three detainees had ever been waterboarded.

Evidence that the CIA recognized that the “enhanced interrogation techniques” were unlawful. This can be inferred from, among other things, the CIA’s request for Justice Department guarantees not to prosecute such practices under federal laws prohibiting torture and CIA lawyers’ acknowledgment in a draft letter to the US attorney general that use of “enhanced interrogation techniques” would be barred by anti-torture laws.

Details about the various steps the CIA took to cover up possible criminal activity and obstruct the democratic process, including by making false claims to the Justice Department, the White House, and Congress about the scope, nature, successes, and necessity of the interrogation program.

Efforts the administration took to keep senior members of its National Security Council and Defense Department team in the dark about the program.

The Senate Summary also places these and other facts in the context of US decision-making and explains how the Bush administration came to adopt, authorize, and approve a government-sanctioned program of torture and enforced disappearance around the globe. It should be recognized, however, that although the Senate Summary provides important new details about the interrogation program, it remains an account told largely from the government’s perspective. The voices of the detainees who were subjected to torture are not included.

US Response to the Senate Summary

Evidence has long been available that US officials and agents violated US federal law, as well as international law, in connection with the CIA’s rendition, detention, and interrogation program.[124] Failure to prosecute torture is itself a violation of the Convention against Torture. The release of the Senate Summary puts forward further evidence of wrongdoing that the US government is obligated under international law to investigate and appropriately prosecute, as well as provide redress to victims. However, the US has largely failed to act.

The Obama administration and others have put forward three broad reasons why the US need not and should not conduct criminal investigations into alleged abuses by US officials connected to the CIA interrogation program:

“An investigation was already conducted”: The Obama administration’s main argument to justify no action is that it already conducted an investigation into these events, pointing to the Durham inquiry.

“Prosecutions would be politically harmful”: President Obama famously said after his election but before taking office that he “had a belief that we need to look forward as opposed to looking backwards.” Commentators supporting this approach contend that prosecutions, brought largely against Bush-era officials, would invariably be divisive for the nation.

“Prosecutions of those involved in the CIA program are not viable under US law”: Some observers have concluded that it may not be possible to charge those responsible for CIA abuses due to difficulties in proving intent, the expiration of statutes of limitations, and the applicability of other defenses. [129]

As mentioned above, international human rights law, notably the Convention against Torture and the International Covenant on Civil and Political Rights (ICCPR), obligates states to conduct impartial investigations and appropriately prosecute government officials responsible for torture and other cruel, inhuman, or degrading treatment or punishment.

The UN Committee against Torture has stated that a government’s obligation “to investigate, punish, and prevent further torture or ill-treatment in the future” should give “particular attention to the legal responsibility of both the direct perpetrators and officials in the chain of command, whether by acts of instigation, consent or acquiescence.” The Committee considers it “essential” that the “responsibility of any superior officials, whether for direct instigation or encouragement of torture or ill-treatment or for consent or acquiescence therein, be fully investigated through competent, independent and impartial prosecutorial and judicial authorities.”

The UN Human Rights Committee, the independent expert body that monitors state compliance with the ICCPR, has stated that where investigations uncover human rights violations, governments “must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant.” The Committee noted that impunity for arbitrary detention, torture and enforced disappearances, among other abuses, “may well be an important contributing element in the recurrence of the violations.”

Neither the Durham inquiry with its narrow mandate and inadequate investigation, nor Obama’s decision to give priority to political considerations, overcome US obligations under international law to prosecute serious human rights violations.

In the following section we will discuss in detail the third reason proffered not to prosecute, that prosecutions of US officials for torture may not or may no longer be legally viable.

II. Bringing Criminal Prosecutions in the US

There are several federal offenses that senior US officials, as well as other US personnel, can be charged with concerning the CIA’s use of “enhanced interrogation techniques.” The following sections discuss the main charges that should be considered. Not discussed here are possible charges against those alleged to have made false claims to federal officials or government bodies, or to have obstructed justice.

Substance of Potential Charges

The key charges are torture, conspiracy to torture, and conspiracy as a stand-alone crime. Assault, sexual abuse, war crimes and murder, as well as conspiracy to commit some of these crimes, are separate offenses that prosecutors can also pursue.[133]

The level of culpability of those charged will vary widely depending on such factors as their involvement in authorizing and implementing or carrying out the program, whether their acts were authorized by the Justice Department, and whether mitigating circumstances apply. Charges could be brought for the actual completed offense or for attempting, or aiding and abetting, the offense.

Torture and Conspiracy to Torture

The US enacted what is referred to here as the Torture Statute to comply with its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture).[134] President Ronald Reagan had signed the Convention in 1988 and Congress enacted the Torture Statute in 1994 to comply with the Convention. Reagan said at the time the treaty was ratified that the US “will demonstrate unequivocally our desire to bring an end to the abhorrent practice of torture.”

The Torture Statute provides criminal penalties for torture, conspiracy to commit torture, and attempts to commit torture occurring outside the territorial jurisdiction of the United States, regardless of the citizenship of the perpetrator or victim.[136]

The Torture Statute defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control.”[137] To prosecute the crime of conspiracy to torture, prosecutors would have to prove the elements of conspiracy, as well as conspiracy to commit the offense of torture under the Torture Statute.

Legal Standards

Intent Required to Prove Torture

The definition of torture under the Convention against Torture requires that it be “intentionally inflicted.”[138] When ratifying the treaty, the US included an understanding containing similar wording—that in order for an act to constitute torture, it must be “specifically intended” to inflict severe physical or mental pain or suffering.[139] The US later included this “specifically intended” language in the Torture Statute.[140] The Senate Summary provides evidence of numerous instances in which US officials demonstrably sought to inflict severe pain or suffering. Even absent such specific intent, there are other serious crimes with which officials might be charged.

Federal courts have not interpreted the term “specifically intended” in reviewing a criminal case. However, several US courts have interpreted the language in the immigration context in deciding whether individuals have valid challenges to removal because they face torture in the country to which they would be transferred.[142] In most of these cases courts have followed the lead of Auguste v. Ridge, a 2005 appellate court decision upholding an order of removal, which found that the “specifically intended” language in the Senate’s reservation requires a showing of the “specific intent” standard used in US criminal prosecutions.[143] The court noted that the specific intent standard is a “term of art” that is “well-known in American jurisprudence” meaning that “in order for an individual to have acted with specific intent, he must expressly intend to achieve the forbidden act.”[144]

But in the criminal context, the meaning of “specific intent” is anything but clear.[145] As a respected treatise on criminal law notes, courts apply the meaning of “specific intent” in a variety of ways.[146] Some courts suggest that specific intent requires a conscious desire, or “purpose” to produce the proscribed result—in this case severe pain and suffering—“whatever the likelihood of that result happening from the conduct.”[147] Other cases suggest that only knowledge or notice that an act will likely result in the proscribed outcome is necessary for “specific intent” and that the notice element will be satisfied by the reasonable foreseeability of the natural and probable consequences of one’s act.[148]

Some academics have challenged the notion that the Senate even intended to create a “specific intent” crime with its reservation to the treaty.[149] And, while the infamous Bybee Torture Memos of August 1, 2002 interpreted the Torture Act’s language as including a heightened specific intent requirement, less than two years later, the OLC would repudiate that interpretation (see below). Regardless, even using the heightened standard articulated in Auguste, the available evidence indicates that the architects of the CIA Program specifically intended torture. Proof of that intent may be inferred from the total facts and circumstances of the case and does not require direct evidence of the accused's mental state. In fact, the process that led to the creation of the Torture Memos, and the memos themselves, are evidence of intent to torture.

Elements of Conspiracy

Senior US officials who devised and authorized the CIA program did not actually carry out torture themselves, but there is a strong case that they engaged in a conspiracy to torture. In order to prove conspiracy under US law, there must be: (1) an agreement, (2) among two or more persons, (3) for an unlawful purpose, and (4) at least one overt act committed in furtherance of the conspiracy.[153] The overt act need not be illegal. It is also necessary to demonstrate that conspirators intended to agree to commit elements of the underlying offense, in this case torture.

For conspiracy, the agreement can be inferred from direct or circumstantial evidence.[155] No proof of an express agreement is required. As one court noted, “criminal conspiracies are by their very nature clandestine, and a tacit agreement inferred from the surrounding circumstances can—and often does—suffice to ground a finding of willing participation.”

The crime is frequently established as a result of inferences drawn from the acts of persons accused.[157] Relevant circumstantial evidence can include: “the joint appearance of defendants at transactions and negotiations in furtherance of the conspiracy; the relationship among codefendants; mutual representation of defendants to third parties; and other evidence suggesting unity of purpose or common design and understanding among conspirators to accomplish the objects of the conspiracy.”[158]

Individuals can also join a conspiracy if there is sufficient evidence they did so with some knowledge of the conspiracy's “unlawful aims”—in this case torture—and with the intent of helping the conspiracy succeed.[159] In addition, under the doctrine of “conscious avoidance,” knowledge can be found where a defendant consciously avoided learning the fact while aware of the high probability of its existence, even if there is no evidence that the defendant possessed actual knowledge.[160]

Evidence of Conspiracy to Torture

There is substantial evidence supporting charges of conspiracy to torture against senior US officials and CIA contractors, including evidence that some individuals joined the conspiracy after it was first established.

Generating Legal Cover for Torture

After the US apprehension of Abu Zubaydah on March 28, 2002, someone identified as “CTC Legal” in the Senate Summary recommended that a psychologist working on contract in the CIA's Office of Technical Services (OTS)—identified in the Senate Summary as Dr. Grayson Swigert—be used by the CIA to “provide real-time recommendations to overcome Abu Zubaydah’s resistance to interrogation.” Not long thereafter Swigert, since identified as James Mitchell, and another psychologist identified in the Senate Summary as Dr. Harold Dunbar, since identified as Bruce Jessen, proposed that the CIA use 12 interrogation techniques on detainees.[162] These techniques included waterboarding, painful stress positions, walling, prolonged sleep deprivation, and cramped confinement among others— most of which were eventually approved for use by the OLC.[163] Mitchell and Jessen were ultimately hired as contractors by the CIA to develop the “enhanced interrogation technique” program, carry it out, and assess its effectiveness.[164]

Officials in the CIA and at the White House knew or should have known, from the moment these techniques were proposed, that they violated the Torture Statute. First, the techniques were derived from those used in the Defense Department’s Survival, Evasion, Resistance and Escape (SERE) program—a program designed to train US Special Forces to endure interrogation methods used by enemies who do not abide by the Geneva Conventions and the laws of war, which prohibit torture.[165] Second, the US Army’s field manual for intelligence investigations at the time prohibited many of the techniques the CIA was considering and ultimately approved using, such as “abnormal sleep deprivation” and “forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time,” and “food deprivation,” explicitly defining them as forms of torture.[166]

Indeed, the Senate Summary includes strong evidence that CIA and senior White House officials did know, practically from the moment that they were first being considered, that these techniques violated the Torture Statute. According to a Department of Justice Office of Professional Responsibility investigation (OPR investigation), the CIA, through its acting General Counsel John Rizzo, expressed concern about “criminal liability” under the Torture Statute and sought a guarantee from the Justice Department that employees would not be prosecuted for use of these techniques. The Senate Summary also contains reference to a draft letter to the attorney general from “CTC Legal” —a likely reference to someone in the legal department of the CIA’s counterterrorism center, headed by Jonathan Fredman at the time[168] —asking for an advance guarantee not to prosecute any US employees or agents using “aggressive methods” of interrogation and acknowledging that these methods would otherwise be prohibited by the Torture Statute. The letter was drafted in July 2002 and circulated internally at the CIA, as well as to Mitchell, though the Senate Summary says there are no records showing that it was ever sent. The existence of the letter indicates that CIA legal advisers believed from the beginning that the techniques being proposed were likely illegal.

At a July 13, 2002 meeting where the guarantee not to prosecute was discussed, Michael Chertoff, head of the Justice Department Criminal Division, refused to provide such a guarantee.[171] At that same meeting, Daniel Levin, chief of staff to the FBI director at the time, also reportedly said that the FBI would not participate in any interrogations employing “enhanced interrogation techniques,” whether they were found legal or not and that the FBI would not further discuss the matter.[172] Also present at the meeting was Rizzo; “CTC Legal”; legal advisor to the National Security Council John Bellinger; and Department of Justice OLC attorneys, including John Yoo.

At that point, senior White House officials, including Counsel to Vice President David Addington and White House Counsel Alberto Gonzales; CIA officials, including Rizzo; and the OLC’s Yoo engaged in a series of meetings and consultations in an apparent effort to generate novel legal cover for interrogation techniques that the CIA and others knew likely constituted torture. Eventually, these meetings led to the production of the first official memos, both issued on August 1, 2002, purporting to authorize the use of what the CIA referred to as “enhanced interrogation techniques.”

Evidence of the process by which the Bybee Memos were developed includes:

At some point after Abu Zubaydah’s apprehension, the CIA asked the OLC for an opinion as to the legality of the proposed interrogation techniques. Attorney General John Ashcroft instructed Yoo to draft the opinion.[175] Yoo began doing so after an April 16, 2002 meeting with unnamed individuals at the National Security Council.[176] Bellinger, having been told by CIA attorneys that they wanted to use “aggressive” interrogation techniques on Abu Zubaydah and that they wanted a guarantee that the Justice Department would not prosecute (known as a “declination of prosecution”), facilitated contact and meetings among the CIA, OLC, and Justice Department Criminal Division. He also reportedly told Yoo that access to the interrogation program was extremely limited and that the State Department should not be informed.

Sometime around July 8, 2002, as noted above, “CTC Legal” apparently drafted a letter, identified as a “draft” in the summary, to the attorney general asking that his office provide a guarantee not to prosecute in advance to any US employees or personnel who carry out interrogations on Abu Zubaydah that otherwise might subject them to criminal prosecution. The letter acknowledged that use of the “aggressive methods” would otherwise be prohibited by the Torture Statute “apart from potential reliance upon the doctrines of necessity or of self-defense.” The letter was circulated internally at the CIA but there are no records to indicate it was provided to the attorney general.

On July 12, 2002, Yoo met at the White House Counsel’s office with Gonzales and likely Addington about his memo, which Yoo reportedly referred to internally as the “bad things opinion.” [182] At this point Yoo’s draft memo focused on the definition of torture, the ratification and negotiating history of the Torture Statute, and an analysis of what had been considered torture in prior cases. [183] It did not contain any arguments about whether the statute required specific intent to torture as an element; nor did it address any potential defenses to the statute in the case of prosecution. [184]

At this point Yoo’s draft memo focused on the definition of torture, the ratification and negotiating history of the Torture Statute, and an analysis of what had been considered torture in prior cases. It did not contain any arguments about whether the statute required specific intent to torture as an element; nor did it address any potential defenses to the statute in the case of prosecution. On July 13, 2002, the meeting where Chertoff refused to provide a guarantee not to prosecute and Levin said the FBI would not participate in interrogations, took place. After this, the OLC memos seem to have become more important to the CIA and senior officials at the White House, as they would need to rely upon them to justify the legality of the techniques.

The same day as the July 13 meeting, at Rizzo’s request, Yoo drafted and two days later sent Rizzo a summary of the elements of the Torture Statute and how the specific intent required under it could be negated. In a separate email to Rizzo on July 15, likely in follow-up to the letter, Yoo also suggested to Rizzo “one other thing to include … a footnote saying that we do not address because not asked” the following:(1) how Commander-in-Chief power affects enforcement of the Torture Statute; and (2) possible defenses to violations of the Torture Statute. [186]

The next day, July 16, Yoo met yet again with Gonzales and likely Addington. [187] After this meeting, Yoo began adding new sections to the memo on the Commander-in-Chief power and possible defenses to violations of the Torture Statute. [188] He also added in arguments about how specific intent could be negated. [189] A colleague of Yoo’s, Deputy Assistant Attorney General Patrick Philbin, noticed that the new sections were added and suggested they were “superfluous” and should be removed. [190] Yoo responded: “They want it in there.” [191] The arguments remained in the analysis.

Yoo provided regular briefings about the draft memorandums to Attorney General Ashcroft. He explained to him that the Justice Department Criminal Division had refused to provide the advance declination. At some point Ashcroft asked if it would be possible to issue advance pardons. Yoo informed Ashcroft it would not.

On July 17, CIA director George Tenet met with National Security Adviser Condoleezza Rice, who told him that the CIA could proceed with its proposed interrogation of Abu Zubaydah, subject to the CIA providing more details about the techniques, an explanation as to why they would not cause lasting irreparable harm to Zubaydah, and a determination of legality by the OLC.

The CIA gathered the requested information over the course of the following week. The CIA asked Mitchell and Jessen about the possible psychological impact of using the waterboard or proposed “mock burial” techniques on Abu Zubaydah. Through a cable from the CIA Chief of Base, they responded that while SERE techniques are applied on volunteer students in a harmless way with no measurable psychological impact, they could not guarantee the same with Abu Zubaydah. While interrogation personnel will “make every effort” to ensure Abu Zubaydah is not “permanently physically or mentally harmed … we should not say … that there is no risk.”

On July 24, the OLC orally advised the CIA that Attorney General Ashcroft had concluded that, with the exception of waterboarding, the proposed techniques—including the attention grasp, walling, the facial hold, the facial slap (insult slap), cramped confinement, wall standing, stress positions, sleep deprivation, use of diapers, and use of insects—could be used and were lawful.

In apparent response to Rice’s request, Defense Department General Counsel William Haynes obtained two memos from JPRA staff. The first dated July 25, 2002 listed lesson plans on “exploitation and interrogation” based on what had been effective against “Americans” in the past. A second, dated July 26, 2002 had three attachments. The first included a list of techniques used to train SERE students to resist abusive interrogations; the second included operational risks, associated with the use of SERE-techniques (such as the danger of obtaining false information and that a detainee’s resistance will increase), which were described interchangeably throughout the memo as “physical and psychological duress” and “torture;” and the third included information on the impact of SERE techniques used on SERE students which was described as “minimal”—though this was attributed to the voluntary nature of the program and extensive steps taken to ensure that the students suffered no long term harm. On July 26, Ashcroft orally approved the use of waterboarding.

Sometime around July 26, and perhaps the same day, the CIA informed OLC that it wanted the approval in writing. On July 26, the White House also told Yoo that they wanted the memos done “as soon as possible.” Yoo then incorporated comments from Gonzalez, Chertoff, and Philbin into his drafts.

The final drafts of the two Bybee Memos, authored by Yoo, were issued on August 1, 2002. The second memo, addressed to Rizzo, invoked CIA consultations with individuals with extensive experience in the use of SERE techniques in justifying its claim that no prolonged mental harm would result from use of the “enhanced interrogation” methods. [205]

This sequence of meetings, correspondence, and events strongly suggest the involvement of senior White House and CIA officials in the production and content of the Bybee Memos. The OPR investigation came to a similar conclusion: “In view of this sequence of events, we believe it is likely that the sections [of the “August 1, 2002 Memos”] were added because some number of attendees at the July 16, 2002 meeting requested the additions, perhaps because the Criminal Division had refused to issue any advance declinations.”[206] The fact that the CIA’s (CTC Legal’s) July 8 draft letter recognized the importance of “potential reliance upon the doctrines of necessity or of self-defense” to avoid liability under the Torture Statute strengthens this conclusion.

Ultimately, the OPR investigation found that Yoo violated his duty to exercise independent legal judgment, committing “intentional professional misconduct,” and that Bybee acted in “reckless disregard” of his obligations to provide independent legal analysis.[207] The OPR investigation called for both lawyers to be referred to their respective state bar associations for discipline but in 2010 Associate Deputy Attorney General David Margolis rejected this recommendation.[208]

The meetings, correspondence, and events also provide evidence relevant to establishing the elements of a criminal conspiracy in that they are evidence of an agreement, among two or more persons (the senior administration officials involved in the meetings and authorizations above) for an unlawful purpose—the use of interrogation techniques that, individually, and certainly when combined as course of conduct, as discussed in more detail below, amounted to torture. Many of the individuals involved also appear to have engaged in overt acts in furtherance of the conspiracy—such as facilitating contact between parties that could approve use of the techniques, ensuring that relevant government officials who might object were not informed of the techniques, orally approving use of the techniques, drafting the memos or providing input for the content of the memos, approving the memos or techniques, giving orders in accordance with use of the techniques, and hiring psychologists Mitchell and Jessen to implement the program.

Based on the information outlined above, the following individuals should be investigated for their role in the conspiracy: Acting CIA General Counsel John Rizzo, Head of the Justice Department OLC Jay Bybee, OLC Deputy Assistant Attorney General John Yoo, the person identified as “CTC Legal” in the Senate Summary, CIA Director George Tenet, National Security Legal Advisor John Bellinger, Attorney General John Ashcroft, White House Counsel Legal Advisor Alberto Gonzales, Counsel to the Vice President David Addington, Deputy White House Counsel Timothy Flanigan, and National Security Advisor Condoleezza Rice.

President Bush and Vice President Cheney should also be investigated for their roles in approving torture. The Senate Summary indicates that Bush was not briefed on the CIA program until April 8, 2006 and that at that time he “expressed discomfort” at the image of a detainee chained, diapered, and forced to go to the bathroom on himself. However, Bush admits in his autobiography that he discussed the program with Tenet in 2002, prior to application of the first techniques, and personally approved them. Further, a still-classified Memorandum of Notification for covert action, signed by Bush on September 17, 2001, provided the purported basis for authorization of the CIA program, though apparently not for the use of coercive interrogations. More about Cheney’s role after the “Torture Memos” were issued is elaborated on below, but media reports indicate that he, together with Addington, was the principal political force pressing OLC lawyers to justify the use of coercive interrogation methods. As Cheney notably said during a media interview in which he defended the actions of Yoo and other OLC lawyers, the lawyers did “what we asked them to do.”[214]

Mitchell and Jessen should be investigated for their alleged direct participation in torture, often applied in ways beyond how it was authorized, but also for their role in the initial conspiracy to torture as well. As the Senate Summary points out, it was Mitchell who first proposed the use of 12 specific techniques derived from the US Military’s SERE school on Abu Zubaydah (see above) to the CIA.[215] Both Jessen and Mitchell had been psychologists with the US Air Force SERE school so they would have known the school exposed trainees to interrogation methods that would violate the Geneva Conventions and the laws of war.[216] “CTC Legal’s” draft letter to Ashcroft asking for a guarantee to prosecute was circulated to Mitchell. Also in July, Mitchell proposed the CIA enter into a contract with Jessen to aid the CIA in its interrogation process.[218] At some point, Mitchell and Jessen, perhaps not until 2005, formed the company Mitchell Jessen & Associates along with other former JPRA officials and SERE school employees or contractors. They received $81 million on their $180 million contract with the CIA to carry out the program before it was terminated in 2009.[220] The contract was to assess detainees’ fitness for the use of “enhanced interrogation techniques,” conduct interrogations, and to assess the effectiveness of the techniques as applied.[221]

In late July as Yoo was finishing up the August 1, 2002 memos, he received a psychological assessment of Abu Zubaydah and a report from CIA psychologists asserting that the use of harsh interrogation techniques in SERE training had resulted in no adverse long-term effects.[222] The August 1, 2002 memo (Bybee II Memo) to John Rizzo relied in part upon the psychological assessment of Abu Zubaydah sent to Yoo on July 24, 2002.[223] Whether Mitchell, Jessen, or anyone from the company played a role in making these assessments should be investigated. The author of the July 24, 2002 psychological assessment is not clear but the Senate Summary indicates that Mitchell was present during interrogation sessions with Abu Zubaydah and likely produced a psychological assessment of him.[224] The Senate Summary documents concerns raised in CIA cables about a conflict of interest inherent in having Mitchell and Jessen in charge of conducting psychological assessments of detainees, the appropriateness of the application of “enhanced interrogation techniques” on them, as well as the effectiveness of the techniques.[225] The CIA admits the multiple roles of Mitchell and Jessen raised conflict of interest concerns, especially early on in the program.[226]

Defining “Humane Treatment”

Other government documents, related to later stages of the CIA program, provide further evidence that those named above were part of the conspiracy, and that others joined the conspiracy at a later date. Specifically, there is evidence in the public record indicating that senior US officials or government agents, both had knowledge of the “unlawful aims” of the conspiracy—using torture to “enhance” interrogations—or made a deliberate effort to avoid knowing that torture was being used.

In late 2002, CIA officials appear to have grown concerned that President Bush and other senior officials were not fully behind their use of the “enhanced interrogation techniques,” and sought reassurance that they had approval to proceed.

The concern stemmed from a memo that Bush issued on February 7, 2002, declaring that the Geneva Conventions did not apply to Taliban and Al-Qaeda detainees but that the US armed forces would nevertheless treat detainees “humanely.” The CIA’s concerns were compounded by various communications it received about detainee treatment after it began using the OLC-approved techniques. As a result, then-CIA General Counsel Scott Muller decided to draft a “Memorandum for the Record,” dated February 12, 2003, memorializing conversations he had with senior members of the administration confirming that the February 7, 2002 memo did not impose new requirements on the CIA to treat detainees “humanely.”[229] The memo mentioned conversations about a letter from Secretary of Defense Donald Rumsfeld addressed to George Tenet, and received by the CIA on November 26, 2002, raising the requirement of humane treatment articulated in the president’s February 7, 2002 memo in relation to the transfer of a detainee from the Defense Department to CIA custody. It also mentioned conversations between Muller, Gonzales, Addington, Haynes, and Yoo, about a December 27, 2002 letter from Human Rights Watch raising concern about allegations of US abuse of detainees.

In the memo, Muller confirmed that on December 13, 2002, Yoo told him that the February 7, 2002 memo had been “deliberately limited” so it would only be binding on US Armed Forces, not the CIA. Additionally, in two conversations John Bellinger told him that the types of interrogation techniques authorized by the attorney general had been “extensively discussed” and were “consistent with the President’s February 7, 2002 memo.” Muller also noted that at a January 13, 2003 meeting attended by Muller, Gonzales, Addington, Yoo, and Haynes about the Human Rights Watch December 27, 2002 letter, Addington, Gonzalez and Yoo confirmed that the president’s memo was only applicable to the armed forces.

At another meeting three days later, on January 16, 2003, Muller said that there was “an arguable inconsistency between what the CIA was authorized to do and what at least some in the international community might expect in light of the Administration’s public statements about ‘humane treatment’ of detainees on and after the February memo.” At that meeting, attended by Muller, Rice, Rumsfeld, Haynes, Secretary of State Collin Powell, Cheney, and Tenet, the CIA’s past and ongoing use of approved interrogation techniques was “reaffirmed and in no way drawn into question,” according to the Muller memo.

The reassurance provided to the CIA did not put the matter to rest. On June 25, 2003, Haynes wrote to Senator Patrick Leahy, in response to a letter Leahy wrote to Haynes with concerns about detainee treatment, saying that it is US policy to treat all detainees in a manner consistent with its obligations under the Convention against Torture as well as the Constitution’s ban on cruel, inhuman or degrading treatment or punishment. On June 26, 2003, the White House issued a press release in support of International Support for Victims of Torture Day condemning “cruel” treatment of detainees; and on June 27, 2003, a White House spokesman was quoted as saying that the US government was treating detainees “humanely.”[237] All this prompted Tenet to write a letter to National Security Advisor Rice reminding her that the CIA had previously objected to White House statements that all US government detainees were being treated “humanely” and asked that the administration “reaffirm its commitment” to use of the CIA’s enhanced interrogation program.

These statements and actions were essentially admissions that, at minimum, the CIA was not treating detainees humanely. They also undermine the credibility of claims that these senior US officials were confident that the authorized techniques did not amount to torture. Additionally, they support the view that at least some officials consciously avoided asking whether the techniques were unlawful and may bring CIA General Counsel Muller, Rumsfeld, Haynes, and possibly Powell, into the ambit of the conspiracy.[239] By January 9 2003, Navy General Counsel Alberto Mora had already informed Rumsfeld and Haynes that many of the same techniques were illegal and demanded orders approving them be rescinded (see above).[240] Documentation from a later July 29, 2003 meeting show Bellinger stating, in response to a question from Vice President Dick Cheney, that there was “no requirement” for a full meeting of the NSC principals to discuss details of the CIA program, which was referred to in the documentation as “controversial.”[241] Such a full principals meeting would include Rumsfeld, Powell and Bush. Also present at the meeting were Rice, Tenet, Muller, Ashcroft, Acting Assistant Attorney General OLC Patrick Philbin, Gonzales, and Cheney. During the meeting, Cheney, Rice, Ashcroft and Tenet all agreed that such full principals meeting to “review and reaffirm” the CIA program was not “necessary or advisable.”[242] Gonzales stated that he was certain Rumsfeld, through his General Counsel William Haynes, was already clearly aware of the substance of the program. Muller and Bellinger agreed.[243] Rice, however, appears to have changed her mind and on August 4, 2003 had Bellinger call Muller and suggest that Powell and Rumsfeld should be briefed before a specific date that is redacted from the memo.[244]

Reauthorization of the Torture Program

In November 2002, a detainee died in CIA custody and the CIA’s Office of Inspector General issued its scathing report on May 7, 2004 about both the use of techniques in an unauthorized manner, and the use of techniques that were never authorized. (“CIA OIG Report”). After the CIA OIG Report, CIA director Tenet suspended both the use of what were called “standard” interrogation techniques, as well as “enhanced interrogation techniques” pending a legal and policy review. The program was later reauthorized in a process that spanned the terms of three CIA directors: Tenet who resigned in June 2004, John McLaughlin who replaced him as acting CIA director until September 2004, and Porter Goss who took over from McLaughlin in September 2004. Daniel Levin, in 2004, and Steven Bradbury, in 2005, wrote memos that reauthorized the program, replacing the one that had been withdrawn by Goldsmith and drafting new ones that authorized additional techniques. These memos rejected the legal reasoning of the prior “Bybee Memos” but then authorized the same and even additional conduct using different legal reasoning.

Prior to re-authorization in 2005, according to the Senate Summary, the CIA provided the Justice Department with numerous descriptions of the interrogation techniques that were false and inconsistent with how the CIA had actually been applying them, the physical and psychological impact of the techniques on detainees, the threat posed by those to whom the techniques were being applied, and their degree of effectiveness.[248] For example, the CIA represented that standing sleep deprivation would be discontinued if it resulted in significant swelling of the lower extremities (edema) but in practice this technique “was repeatedly not stopped when edema occurred.” Additionally, the CIA provided false information about the use of light and cold temperatures on detainees, the claim that interrogations would stop when detainees experienced hallucinations, and a number of other matters. The Senate Summary does not clearly identify who exactly is responsible for supplying this false information, identifying a number of CIA sources, and indicates that more information is available in the still classified sections of the complete report.

There is also information in the Senate Summary that Acting Assistant Attorney General for OLC Steven Bradbury was looking for statements from the CIA that he could use to justify the techniques in his new memo. For example, just days before Bradbury issued new memos on May 10, 2005 re-authorizing the program, he sent a letter to the CIA asking if medical monitoring and other safeguards in place “will effectively avoid severe physical pain or suffering for detainees.” The CIA’s Office of Medical Services (OMS) had expressed discomfort with these types of questions just a few weeks earlier when they received a draft of the OLC authorizing memo for review:

Simply put, OMS is not in the business of saying what is acceptable in causing discomfort to other human beings, and will not take on that burden.... OMS did not review or vet these techniques prior to their introduction, but rather came into this program with the understanding of your office and DOJ [Department of Justice] that they were already determined as legal, permitted and safe. We see this current iteration [of the OLC memorandum] as a reversal of that sequence, and a relocation of those decisions to OMS. If this is the case, that OMS has now the responsibility for determining a procedure's legality through its determination of safety, then we will need to review all procedures in that light given this new responsibility.

Nevertheless, OMS later responded to Bradbury that the CIA’s program “has effectively avoided severe physical pain and suffering, and should continue to do so. Application of the thirteen techniques has not to date resulted in any severe or permanent physical injury (or any injury other than transient bruising), and we do not expect this to change.”

CIA officials who supplied the false information can be considered to have joined the conspiracy. The overt acts are that they supplied the false facts, were aware of the program’s unlawful aims, the infliction of severe pain and suffering, and did so with the intent of the conspiracy to torture succeeding. Similarly, by drafting and issuing new legal memos that reauthorized the same and even additional “enhanced interrogation techniques,” especially in light of the controversy around them and problems with the program reported by the CIA OIG, both Levin and Bradbury can be seen as having undertaken overt acts—drafting of the new memos—with knowledge of the conspiracy’s unlawful aims and with the intent that the use of these techniques continue and thus that the conspiracy succeed.

Evidence against Other Officials in Connection with the Conspiracy

Other individuals who—due to their positions or reported actions—should be included in an investigation in connection with the conspiracy include:

Jose Rodriguez, Cofer Black’s successor, who oversaw operation of the CIA’s program from May 2002-November 2004 and was responsible for ordering the destruction of 92 videotapes documenting the CIA’s use of “enhanced interrogation techniques,” which included waterboarding sessions, over the objections of senior officials at the White House and the CIA, as well as Congress. [254] Later in his memoirs, Rodriguez describes his order to destroy the tapes as “just getting rid of some ugly visuals.” [255]

The CIA’s current deputy general counsel for operations, Robert Eatinger, who is reportedly mentioned by name more than 1,600 times in the Senate’s full report, though his name did not appear in the Senate Summary. [256] Eatinger was a lawyer in the CIA’s Counterterrorism Center when the center managed and carried out the detention and interrogation program, and from mid-2004 until official termination of the program in January 2009, he was the unit’s chief lawyer. He reportedly provided legal advice that Rodriguez had legal authority to destroy the tapes and that the destruction would violate no laws. He is also accused of providing inaccurate information to the OLC about the CIA program upon which the OLC relied when issuing authorizations for CIA action.

Eatinger was a lawyer in the CIA’s Counterterrorism Center when the center managed and carried out the detention and interrogation program, and from mid-2004 until official termination of the program in January 2009, he was the unit’s chief lawyer. He reportedly provided legal advice that Rodriguez had legal authority to destroy the tapes and that the destruction would violate no laws. He is also accused of providing inaccurate information to the OLC about the CIA program upon which the OLC relied when issuing authorizations for CIA action. Cofer Black, head of the CIA’s counterterrorism center from June 1999 until the end of 2002, appeared to play a key role in implementing the program as well, though his exact role is not necessarily clear from the public record. In October 2008, CIA Director Tenet delegated responsibility to him to manage the capture and detention authorities provided in the MON. Black famously said during testimony before Congress on September 26, 2002: “[T]here was ‘before’ 9/11 and ‘after’ 9/11. After 9/11 the gloves come off.” [261]

Someone identified as “CTC legal” in the Senate Summary. “CTC Legal” first proposed to the CIA in April 2002 that they use James Mitchell as a CIA consultant in interrogations and the use of aggressive interrogation techniques. “CTC Legal” also was the author of a July 8, 2002 letter that acknowledged the illegality of the CIA’s proposed enhanced interrogation techniques. This individual was part of a CIA legal team present at the July 13, 2002 meeting, which included Rizzo and other unnamed CIA lawyers, who proposed the use of “enhanced interrogation techniques” and sought a declination from the Justice Department’s Criminal Division. “CTC Legal” also drafted a memo in June 2003 when the CIA was looking at reaffirmation of the CIA program stating that one of the August 1, 2002 memos provided “safe harbor” for the CIA’s use of “enhanced interrogation techniques.” “CTC Legal” was also present, along with Alfreda Bikowski, during “aggressive” interrogations of Abu Zubaydah that included the use of waterboarding.

OLC Memos as Evidence of Conspiracy and Intent to Torture

Beyond CIA efforts to obtain what would be preemptive immunity from prosecution for using torture, the strained legal reasoning of the “Bybee Memos” themselves also suggests that those involved knew they were creating “authorization” as a cover for what would otherwise almost certainly be deemed illegal acts.

The memos themselves were deeply flawed from a legal perspective and have been widely discredited. The Bybee I Memo invented definitional requirements for torture that went far beyond any existing standard by, for example, drawing on irrelevant health benefits statutes to argue that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Mental pain or suffering would only amount to torture if it results in “significant psychological harm of significant duration, e.g., lasting for months or even years.”

The Bybee I Memo advised that the claimed specific intent requirement in the Torture Statute could be negated by a good faith belief that the acts undertaken would not cause prolonged mental harm. A defendant in a criminal case could demonstrate this good faith belief by showing for example that he surveyed the professional literature, consulted with experts, or reviewed evidence gained from past experience. The memo also advised that if an interrogator were to harm a detainee during use of “enhanced interrogation techniques,” he would be doing so to prevent further attacks on the US and therefore would be justified by the Commander-in-Chief’s constitutional authority to prevent the nation from attack. The assertion ignores well-established US Supreme Court precedent making clear that the executive branch does not have unbridled authority in the conduct foreign affairs—it is bound by congressional statues and judicial decisions. Torture is prohibited by US and international human rights and humanitarian law at all times and for all reasons. There is no exception for war or public emergencies.

The Justice Department withdrew the Bybee I Memo in June 2004, in the wake of the Abu Ghraib scandal and just days after its contents were leaked to the media. Jack Goldsmith, who replaced Yoo, headed the OLC from October 2003 to June 2004, and was largely responsible for getting