Katherine Hawkins is the National Security Fellow at OpenTheGovernment.org, a nonprofit organization that advocates for more government transparency. She previously served as the investigator for the Constitution Project’s Task Force on Detainee Treatment.

“Waterboarding is torture. . . . And thus, illegal,” Attorney General nominee Loretta Lynch said during her confirmation hearing Wednesday.

Lynch is not the first AG nominee to definitively label waterboarding as such; Eric Holder made the same declaration during his 2009 appearance before the Senate Judiciary Committee.


But speaking more recently, the attorney general was unwilling to say that CIA officers who engaged in waterboarding and other acts of torture had committed crimes. In December, he told MSNBC that “I can’t honestly say that crimes were committed,” Holder said. “They might have been ‘legal’ in the strictest sense of the word, but in many ways they were immoral.”

This is nonsense.

In fact, a close reading of the Office of Legal Counsel memos that authorized the CIA’s “enhanced interrogation techniques” shows they relied not only on flawed legal analysis but on a series of factual claims by the CIA to the Department of Justice that served as the underpinnings for the legal protections the memos purported to bestow.

In the days after the Senate torture report was released, John Yoo, the architect of the original Department of Justice memos, said that the report indicated some of the CIA officers involved went beyond the strict guidance they were given and engaged in acts that “were not approved by the Justice Department at the time.” However, as the dust has settled from the report’s release, a closer, detailed reading of the report makes clear that the program’s legality was undermined because of how the agency misled the Justice Department lawyers looking over their shoulders.

The CIA, for example, said that its techniques had been safely used in training exercises for U.S. service members; that they would be carefully monitored by doctors and psychologists who would keep detainees safe; that no detainee had suffered pain or injury or showed any long term ill-effects; that they were necessary to disrupt terrorists plots, and had saved lives. What if none of them were true? What if the CIA knew they were false—and failed to inform the Justice Department?

CIA Director John Brennan has asserted that the “overwhelming majority” of CIA personnel had complied with the limits in the Office of Legal Counsel memos, and said they should not be “criticized” for their actions. The torture report released last month by the Senate Select Committee on Intelligence makes clear this is untrue, shattering the legal justification for the CIA program.

The Abu Zubaydah Torture Memos

The first set of OLC torture memos, written by John Yoo and signed by Jay Bybee on August 1, 2002, were meant to shield the CIA from liability for its planned “enhanced interrogation” of Abu Zubaydah, the first detainee held at a black site. Abu Zubaydah, captured after a gunfight in Pakistan in late March 2002, was believed at the time to be the highest level Al Qaeda suspect in U.S. custody.

The OLC addressed one of the torture memos to CIA General Counsel John Rizzo. That memo, classified until 2009, advised that waterboarding, placing prisoners in coffin-sized boxes, and a series of other techniques did not violate the torture statute. But the Senate uncovered evidence that several weeks before this advice was delivered, a high-ranking CIA lawyer had internally conceded that the interrogation techniques did run afoul of that law. The torture report’s executive summary states that in early July 2002, a lawyer in the CIA’s counterterrorism center (CTC)

drafted a letter to Attorney General John Ashcroft asking the Department of Justice for “a formal declination of prosecution, in advance, for any employees acting on behalf of the United States, who may employ methods in the interrogation of Abu Zubaydah that otherwise might subject those individuals to prosecution.” The letter added that these “aggressive methods” would otherwise be prohibited by the torture statute, “apart from potential reliance upon the doctrines of necessity or of self-defense.”

This letter was reportedly “circulated internally at the CIA” but never sent to the attorney general . The CIA ultimately asked Michael Chertoff, then the head of the Justice Department’s criminal division, for a guarantee that CIA employees who used “enhanced” techniques would not be prosecuted. Chertoff refused. But Yoo soon came to the rescue, telling the CIA that its proposed interrogation would not violate the anti-torture statute, effectively providing the shield Chertoff would not.

On August 1, OLC sent the CIA the final memos, confirming this advice in writing. The memo to Rizzo included this disclaimer:

Our advice is based on the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply.

The classified memo reiterates the CIA’s assertion that the proposed techniques were used in Survival, Evasion, Resistance, and Escape (SERE) training on tens of thousands of U.S. servicemembers without lasting harm. It claims that the coffin-sized and smaller “confinement boxes” in which the CIA planned to place Zubaydah were “physically uncomfortable because their size restricts movement,” but “not so small as to require the individual to contort his body.” Despite wounds from his capture and subsequent surgeries, the agency assured that “Zubaydah remains quite flexible.” Placing an insect inside the coffin-sized-box “may produce trepidation” but “certainly does not cause physical pain.”

The memo cites CIA claims about the effects of sleep deprivation—a technique used routinely on a number of detainees. The technique, the agency stated, rarely resulted in “psychosis, loosening of thoughts, flattening of emotions, delusions, or paranoid ideas,” and any symptoms “remit after a few good nights of sleep.” The CIA defended the use of waterboarding—long considered torture by the United States and the international community—because it “inflicts no actual pain or harm whatsoever.” To the extent it inflicts suffering, the memo continued, it is “a controlled acute episode”—a conclusion the CIA said it drew after consulting with experts. The agency further told OLC lawyers that “numerous steps will be taken to ensure that none of these procedures in any way interferes with the proper healing of Zubaydah’s wound” and that “should it appear at any time that Zubaydah is experiencing severe pain or suffering, the medical personnel on hand will stop the use of any technique.”

In short, the CIA assured OLC that it would apply just enough pain—and only long enough—to glean lifesaving intelligence from Zubaydah.

While the CIA and OLC collaborated on this sanitized description of “enhanced techniques” for the memos, the interrogation team in Thailand prepared for the ugly reality. In contrast to the memos’ statement that doctors would stop any technique causing severe pain, CIA cables state that only the black site “chief of Base would be allowed to interrupt or stop an interrogation in process.” CIA officers wrote that if Abu Zubaydah suffered a “heart attack or another catastrophic type of conditions, all efforts will be made to ensure that proper medical care will be provided,” but in the event of his death, he would be cremated.

If Abu Zubaydah lived, the interrogation team wanted to make sure that he would stay disappeared forever:

[E]specially in light of the planned psychological pressure techniques to be implemented, we need to get reasonable assurances that [Abu Zubaydah] will remain in isolation and incommunicado for the remainder of his life.

CIA headquarters readily agreed:

There is a fairly unanimous sentiment within HQS that [Abu Zubaydah] will never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released….all major players are in concurrence that [Abu Zubaydah] should remain incommunicado for the remainder of his life.

Lifelong detention—without any access to the International Committee for the Red Cross, a lawyer, or any other human being outside of the captors—is a grave violation of international law. But when one reads the description of Abu Zubaydah’s worst period of torture, one understands why the CIA wanted to keep him incommunicado.

From August 4 to August 23, 2002, Abu Zubaydah spent 266 hours in the coffin-sized “confinement box” and 11 hours in the 21 inch by 21.5 inch by 2.5 foot box. He was slammed into the wall, and waterboarded repeatedly. Abu Zubaydah cried, pleaded, whimpered and vomited—but denied that he had actionable intelligence about imminent threats to the United States.

Within a few days, the interrogation team in Thailand began to believe him. By August 8, according to email traffic reprinted in the torture report, team members had “the collective opinion that we should not go much further.” The following day, they told headquarters that they had reached a “collective preliminary assessment” that it was unlikely that Abu Zubaydah had actionable information about imminent threats.

The field interrogators began making increasingly insistent requests for CIA headquarters personnel to observe the sessions themselves, either in person or by video. They warned that they were “approach[ing] the legal limit,” a comment that Counterterrorism Center head Jose A. Rodriguez Jr. said was “unhelpful” and should be not be put in writing. The interrogation team described Zubaydah as being “compliant” enough that he was conditioned to sit on the water table when an interrogator raised an eyebrow, and to lie flat on the board when an interrogator snapped his fingers. Nonetheless:

CIA Headquarters stated that they continued to believe that Abu Zubaydah was withholding threat information and instructed the CIA interrogators to continue using the CIA’s enhanced interrogation techniques.

Later waterboarding sessions “resulted in immediate fluid intake and involuntary leg, chest and arm spasms.” In one case referenced in emails, Abu Zubaydah “became completely unresponsive, with bubbles rising through his open, full mouth.”

Eventually, a team from headquarters, including the counterterrorism center’s top lawyer, flew to the black site to observe the interrogations. Days after their visit, the “aggressive phase” of Abu Zubaydah’s interrogation ended after CIA personnel in Thailand concluded that Zubaydah, in fact, “did not possess any new terrorist threat information”—as he had claimed before the most intense torture started.

Although this OLC memo only applied to Abu Zubaydah, and many of its factual representations about “enhanced interrogations” were inaccurate, the CIA treated it as a generalized authorization to use the “enhanced” techniques on detainees held at black sites. The agency’s confidence was also likely bolstered by the assertion in a second OLC memo that argued that it was unconstitutional to ban torture if the president believed it was necessary to conduct war or save American lives.

Abd al Rahim al Nashiri—the alleged mastermind of the 2000 attack in Yemen of the USS Cole—was tortured using techniques that OLC never authorized. Khalid Sheikh Mohammed, who U.S. officials say orchestrated the 9/11 attacks, was waterboarded more extensively than Abu Zubaydah, in what a medical officer who observed the sessions called “a series of near drownings.” Dozens of lower value prisoners passed through a CIA dungeon in Afghanistan that the Senate report calls DETENTION SITE COBALT, where detainees were kept in complete darkness and shackled to the ceilings or walls for extended periods. The Senate report states in a footnote:

One senior interrogator, told the CIA [Office of Inspector General] that “literally, a detainee could go for days or weeks without anyone looking at him,” and that his team found one detainee who, “‘as far as we could determine,’ had been chained to the wall in a standing position for 17 days.” According to the CIA interrogator, some of the CIA detainees at DETENTION SITE COBALT “‘literally looked like a dog that had been kenneled.’” When the doors to their cells were opened, they cowered.”

A prisoner name Gul Rahman died in COBALT—more commonly known in the press as the Salt Pit—in December 2002.

In May 2004, almost two years after the first “torture memo” was written, the CIA Inspector General completed an investigation into the program, which pointed out discrepancies between the Yoo memo written to CIA general counsel Rizzo and the CIA’s actual practices. On May 27, OLC head Jack Goldsmith wrote to the CIA’s general counsel to recommend that the CIA suspend the use of waterboarding, and ensure that the use of the other techniques follows “the assumptions and limitations” in the Yoo-Rizzo memo.

A few weeks later, Yoo’s other August 1 2002 torture memo—addressed to then-White House Counsel Alberto Gonzales—was leaked to the press. The White House asked Goldsmith to confirm his support for its conclusions. Goldsmith said that he could not do so, withdrew the memo and resigned the next day.

The CIA’s legal shield for torture had fallen to pieces. The agency and the Office of Legal Counsel set about to rebuild it.

The Bradbury Memos

In May 2005, Acting OLC head Steven Bradbury issued three opinions to CIA general counsel Rizzo on the “enhanced” techniques. One memo discussed whether each individual technique violated the torture statute. A second analyzed whether the techniques violated the torture statute when combined. A third discussed whether they constituted “cruel, inhuman or degrading” treatment.

By the time Bradbury wrote his memos, OLC had abandoned Yoo’s claim that torture had to involve pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” It had dropped the argument that banning torture was unconstitutional. As a result, Bradbury, even more than Yoo, relied on the CIA’s representations of facts about its use of “enhanced interrogation.”

The executive summary methodically demonstrates that the memo’s depictions were, in the report’s restrained words, “incongruent with” the CIA’s own documents.

For example, the memos claim that CIA interrogation personnel were “appropriately screened;” the Senate report found that they included individuals who “had engaged in inappropriate detainee interrogations, had workplace anger management issues, and had reportedly admitted to sexual assault.” The Bradbury memos also claim that the use of diapers on detainees during sleep deprivation were “used solely for sanitary and health reasons” and “not in order to humiliate the detainee ”; Senate investigators found CIA records that said “a central ‘purpose’ of diapers was ‘[t]o cause humiliation’ and induce a sense of helplessness.’”

The memos further assert that none of the CIA detainees subjected to sleep deprivation “has exhibited any lasting mental harm.” Yet the Senate report notes that after being subjected to sleep deprivation, Abd al Rahim al Nashiri was diagnosed by some CIA psychologists as suffering from anxiety and major depressive disorder, although others denied these symptoms. Another CIA detainee, Majid Khan, had engaged “in acts of self-harm that included attempting to cut his wrist on two occasions, an attempt to chew into his arm at the inner elbow” and “an attempt to cut a vein in the top of his foot.” A third, Ramzi Bin Al Shibh, “exhibited behavioral and psychological problems, including visions, paranoia, insomnia, and attempts at self-harm.”

Also asserted in the Bradbury memos was the claim that “enhanced” techniques “are considered only if the on-scene interrogation team determines that the detainee is withholding or manipulating information” and only after an initial interview “in a relatively benign environment.” The Senate report identifies at least six cases in 2003 where detainees “were stripped and shackled, nude, in the standing stress position for sleep deprivation or subjected to other enhanced interrogation techniques prior to being questioned.”

The Bradbury memos concluded that the CIA program did not “shock the conscience” or violate the prohibition on cruel treatment because it accepted CIA representations that the program produced “substantial quantities of otherwise unavailable actionable intelligence.” It relied on a CIA document—the “Effectiveness memo”—that listed 11 examples of “critical intelligence” obtained “ after applying enhanced interrogation techniques.” The Senate report examined these representations in great detail and found them “almost entirely inaccurate.”

The Department of Justice has withdrawn the 2005 Bradbury memos, and two others that repeat many of the same false statements. That was the right decision. But without any form of accountability, or limits on the government’s power to classify evidence of crimes, it is unclear what would prevent a future CIA and OLC from crafting new and deeply flawed memos to justify torture.