Moreover, in Footnote 34, the IG reports that “According to the General Counsel, the period was reduced to 48 hours in December 2003.”

But the Dec. 30, 2004 memo, also released on Monday, this one from the CIA to the Justice Department’s Office of Legal Counsel concerning the treatment of high-value detainees at CIA “black sites” says on page 13 that “sleep deprivation may continue to the 70 to 120 hour range, or possibly beyond for the hardest resisters, but in no case exceed the 180-hour time limit.”

So it appears that at some point after the IG report was completed, the CIA increased the permissible number of hours of sleep deprivation from 48, in December 2003, to 180, in 2004.  That’s 132 hours more of sleep deprivation than the CIA’s general counsel had allowed.

And we know that it stayed at that much higher level for years afterwards, because the May 10, 2005 memo from the Office of Legal Counsel that we’ve previously reported on also approved 180 hours of sleep deprivation. (Remember, this can be accompanied by food deprivation, nakedness, diapering, extreme hot and cold and shackling into stress positions.)

So why the change? How was only 48 hours of sleep deprivation legal in December 2003, but more than three times as long was legal just a year later? Who was changing the rules, and why?

We know that at some point, Jack Goldsmith, hired to head the head of the Office of Legal Counsel in October 2003, withdrew some of the earlier memos authorizing extreme interrogation practices because he worried the memos were “legally flawed.” But then, Goldsmith resigned in June 2004.

Did his resignation open the way for the Justice Department to boost the permissible duration of the sleep deprivation technique back up to 180 hours?

I’ve put in a call to Goldsmith about this, and will report back if I hear anything.

–

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• “Agency senior managers believe that lives have been saved as a result of the capture and interrogation of terrorists who were planning attacks, in particular, Khalid Shaykh Muhammad, Abu Zubaydah, Hambali, and Al-Nashiri.” page 88 para 217.

Read the sentence that precedes it: “This Review did not uncover any evidence that these plots were imminent.” There’s a difference between belief and reality — and if you read the section of the report on “Effectiveness” (it begins at page 85) in context, it’s clear that the former CIA inspector general, John Helgerson, took great pains to distinguish the two and provide explicit skepticism on those claims. The CIA’s detention program “has been effective,” he writes, insofar as it got the terrorists apprehended. “Measuring the effectiveness of EITs [enhanced interrogation techniques], however, is a more subjective process and not without some concern.” He then spends two pages providing a dispassionate account of information detainees “provided… on al-Qa’ida and other terrorist groups” that “assisted” in the “identification of terrorists.” He does not vouch for the information.

But starting on page 89, at paragraph 220, Helgerson pours cold water — you’ll pardon the pun, right? — on the GOP memo’s claims:

Inasmuch as EITs have been used only since August 2002, and they have not all been used with every high value detainee, there is limited data on which to assess their individual effectiveness. This Review identified concerns about the use of the waterboard, specifically whether the risks of its use were justified by the results, whether it has been unnecessarily used in some instances, and whether the fact that it is being applied in a manner different from its use in SERE training brings into question the continued applicability of the DoJ opinion to its use. Although the waterboard is the most intrusive of the EITs, the fact that precautions have been taken to provide on-site medical oversight in the use of all EITs is evidence that their use poses risks.

[REDACTED] Determining the effectiveness of each EIT is important in facilitating Agency management’s decision as to which techniques should be used and for how long. Measuring the overall effectiveness of EITs is challenging for a number of reasons including: (1) the Agency cannot determine with any certainty the totality of the intelligence the detainee actually possesses; (2) each detainee has different fears of and tolerance foe EITs; (3) the application of the same EITs by different interrogators may have different results; and [REDACTED].

With admirable intellectual honesty, Helgerson analyzes the waterboarding cases of the three detainees on whom the technique was used. With the first, Abu Zubaydah, the number of intelligence reports provided before and after his waterboarding is redacted, and there is no attempt at adjudicating the claims of those reports. “It is not possible to say definitively that the waterboard is the reason for Abu Zubaydah’s increased production, or if another factor, such as the length of detention, was the catalyst,” he writes, but still says that “since the use of the waterboard” Abu Zubaydah has “appeared to be cooperative,” which will convince everyone who believes the post-hoc-ergo-propter-hoc fallacy that waterboarding worked.

Abd al-Rahim al-Nashiri, Helgerson writes, was initially compliant after waterboarding, but then his interrogators thought he was holding out on him, so he was tortured further but not waterboarded. “Because of the litany of techniques used by different interrogators over a relatively short period of time, it is difficult to identify why exactly al-Nashiri became more willing to provide information,” he writes, but — again with the post-hoc-ergo-propter-hoc construction — Helgerson does write that after being tortured, al-Nashiri “provided information about his most operational planning.” So I’ll cede that one to be charitable.

Then there is Khalid Shaikh Mohammed, whom the CIA says is its “preeminent source” about al-Qaeda. Helgerson says that KSM wasn’t compliant before his waterboarding, providing “outdated, inaccurate or incomplete” information. But the rest of the paragraph detailing what Helgerson judges about Khalid Shaikh Mohammed is redacted.

This is also context that the GOP memo, perhaps unsurprisingly, omits and ignores. Similarly, Helgerson follows the “effectiveness” section with an extensive discussion of the policy implications of embracing torture, beginning with the flat statement that “the EITs used by the Agency under the CTC [Counterterrorist Center] Program are inconsistent with the public policy positions that the United States has taken regarding human rights.” He continues to provide the dreaded Equivalence, citing examples of the State Department criticizing foreign countries for performing their own “enhanced interrogation techniques.” It’s laughable, but perhaps not surprising, that those who defend the torture program the loudest and misrepresent its contents the greatest consider themselves to be stalwart advocates of liberty.

These techniques include, but are not limited to, all lawful forms of questioning employed by U.S. law enforcement and military interrogation personnel. Among standard interrogation techniques are the use of isolation, sleep deprivation not to exceed 72 hours [reduced in December 2003 to 48 hours' maximum], reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainee), deprivation of reading material, use of loud music or white noise (at a decibel level calculated to avoid damage to the detainee’s hearing), the use of diapers for limited periods (generally not to exceed 72 hours), [REDACTED] at moderate psychological pressure. The DCI [Director of Central Intelligence] Interrogation Guidelines do not specifically prohibit improvised actions. A CTC/Legal officer has said, however, that no one may employ any technique outside specifically identified standard techniques without Headquarters approval.

Before then-Defense Secretary Donald Rumsfeld began the process of expanding the definitions of what military interrogation personnel were allowed to do in November 2002 and culminating in April 2003 — a process significantly based, in chicken-and-egg fashion, on what the CIA was already doing to detainees — none of these listed techniques would have been acceptable for U.S. military interrogators. And FBI interrogators (like Ali Soufan) objected to similar treatment of detainees witnessed in 2003 at Guantanamo Bay. It’s unclear what basis Tenet had for thinking that keeping someone in a diaper for up to three days was acceptable for non-CIA interrogators. But it’s also an example of how torture, once adopted, spreads — and becomes normative. Remember, these techniques aren’t even “enhanced” ones.

A few months before the March 2002 capture of Abu Zubaydah prompted discussion at the highest levels of the Bush administration as to what interrogation policy ought to be, the CIA in late 2001 solicited a report from James Mitchell and Bruce Jessen, two former SERE officials, about how to overcome “countermeasures” al-Qaeda developed to resist interrogation. As a result, the report states, the CIA’s Office of Technical Services “obtained data on the use of the proposed” torture techniques listed in Mitchell and Jessen’s report and the techniques’ “potential long-term psychological effects on detainees.” OTS also got input from the Defense Department’s Joint Personnel Recovery Agency, which oversees the SERE program, as documented in the Senate Armed Services Committee’s torture report from last year. That OTS report was the basis for the information about proposed torture techniques provided to the Justice Department in spring 2002 that Yoo and Bybee, in their August 2002 torture memos, consider for application to Abu Zubaydah.

In the August 1, 2002 memo written by Bybee and Yoo, the lawyers summarize and refer repeatedly to what the CIA told them about how the “enhanced interrogation techniques” are supposed to work, as well as to assurances that the lawyers then consider material for whether the proposed actions violate U.S. laws. For instance, discussing waterboarding, they write, that water would be applied “in a controlled manner,” and that the CIA orally informed them that “this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning.”

Just one problem: CIA medical personal objected to the description that OTS gave to the Justice Department as factually inaccurate.

Addressing the discrepancies between how waterboarding worked in the SERE school and how it worked at CIA and other torture techniques that changed between on-paper justification and in-the-field practice, a footnote to the inspector general’s 2004 report reads:

According to the Chief, Medical Services, OMS [the CIA's Office of Medical Services] was neither consulted nor involved in the initial analysis of the risk and benefits of EITs [“enhanced interrogation techniques,” nor provided with the OTS report cited in the OLC opinion. In retrospect, based on the OLC extracts of the OTS report, OMS contends that the reported sophistication of the preliminary EIT review was probably exaggerated, at least as it related to the waterboard, and that the power of this EIT was appreciably overstated in the report. Furthermore, OMS contends that the expertise of the SERE psychologist/interrogators on the waterboard was probably misrepresented at the time, as the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.

This is hardly the only time during the Bush administration where the CIA cut out of the loop elements from within its own ranks that might not ratify a decision desired by the Bush administration. During the lead-up to the war with Iraq — indeed, during this same time period of early-mid 2002 — the CIA’s chief analyst, Jami Miscik, cut out of CIA analysis on the alleged relationship between Saddam Hussein and al-Qaeda the agency’s own Mideast analysts, who were dubious of any substantive connection.

It is unclear if Yoo or Bybee would have changed their analysis had they been treated to a full account of OMS’s perspective. But it’s crystal clear from the report that fateful decisions were made without the benefit of complete information.

OIG’s [Office of the Inspector General's] review of the videotapes revealed that the waterboard technique employed at [REDACTED] was different from the technique as described in the DoJ opinion and used in the SERE training. The difference was in the manner in which the detainee’s breathing was obstructed. At the SERE School and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contest, the Agency interrogator [REDACTED] continuously applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique differed from that used in SERE training and explained that the Agency’s technique is different because it is “for real” and is more poignant and convincing.

As mentioned in the previous post, OIG saw 183 waterboarding applications, “most of which” lasted less than 10 seconds, presumably because when the CIA performed waterboarding, it was “too real” for someone to withstand. One of the detainees to undergo the treatment, 9/11 mastermind Khalid Shaikh Mohammed, said he would “make up stories” so the torture would stop, thereby defeating the ostensible intelligence-gathering purpose of the technique.

Also, chances are the “psychologist/interrogator” referred to here is either Bruce Jessen or James Mitchell, two former SERE officials who had contracts with the CIA for its “enhanced interrogation” program.

Message from the Director: Release of Material on Past Detention Practices

Today, as part of a number of Freedom of Information Act cases, the government is responding to court orders to release more documents related to the Agency’s past detention and interrogation of foreign terrorists. The CIA materials include the 2004 report from our Office of Inspector General and two papers—one from 2004 and the other from 2005—that discuss the value of intelligence acquired from high-level detainees. The complete package is hundreds of pages long. The declassification process, a mandatory part of the proceedings, was conducted in accord with established FOIA guidelines.

This is in many ways an old story. The outlines of prior interrogation practices, and many of the details, are public already. The use of enhanced interrogation techniques, begun when our country was responding to the horrors of September 11th, ended in January. For the CIA now, the challenge is not the battles of yesterday, but those of today and tomorrow. It is there that we must work to enhance the safety of our country. That is the job the American people want us to do, and that is my responsibility as the current Director of the CIA.

My emphasis on the future comes with a clear recognition that our Agency takes seriously proper accountability for the past. As the intelligence service of a democracy, that’s an important part of who we are. When it comes to past detention and interrogation practices, here are some facts to bear in mind on that point:

* The CIA itself commissioned the Inspector General’s review. The report, prepared five years ago, noted both the effectiveness of the interrogation program and concerns about how it had been run early on. Several Agency components, including the Office of General Counsel and the Directorate of Operations, disagreed with some of the findings and conclusions.

* The CIA referred allegations of abuse to the Department of Justice for potential prosecution. This Agency made no excuses for behavior, however rare, that went beyond the formal guidelines on counterterrorism. The Department of Justice has had the complete IG report since 2004. Its career prosecutors have examined that document—and other incidents from Iraq and Afghanistan—for legal accountability. They worked carefully and thoroughly, sometimes taking years to decide if prosecution was warranted or not. In one case, the Department obtained a criminal conviction of a CIA contractor. In other instances, after Justice chose not to pursue action in court, the Agency took disciplinary steps of its own.

* The CIA provided the complete, unredacted IG report to the Congress. It was made available to the leadership of the Congressional intelligence committees in 2004 and to the full committees in 2006. All of the material in the document has been subject to Congressional oversight and reviewed for legal accountability.

As Director in 2009, my primary interest—when it comes to a program that no longer exists—is to stand up for those officers who did what their country asked and who followed the legal guidance they were given. That is the President’s position, too. The CIA was aggressive over the years in seeking new opinions from the Department of Justice as the legal landscape changed. The Agency sought and received multiple written assurances that its methods were lawful. The CIA has a strong record in terms of following legal guidance and informing the Department of Justice of potentially illegal conduct.

I make no judgments on the accuracy of the 2004 IG report or the various views expressed about it. Nor am I eager to enter the debate, already politicized, over the ultimate utility of the Agency’s past detention and interrogation effort. But this much is clear: The CIA obtained intelligence from high-value detainees when inside information on al-Qa’ida was in short supply. Whether this was the only way to obtain that information will remain a legitimate area of dispute, with Americans holding a range of views on the methods used. The CIA requested and received legal guidance and referred allegations of abuse to the Department of Justice. President Obama has established new policies for interrogation.

The CIA must also keep its focus on the primary responsibility of protecting the country. America is a nation at war. This Agency plays a decisive role in helping the United States meet the full range of security threats and opportunities overseas. That starts with the continuing fight against al-Qa’ida and its sympathizers. There, alongside all its other contributions, the CIA is helping our government chart a new way forward on interrogation, one in keeping with the President’s Executive Order of January 22nd. You, the men and women of this great institution, do the hard work and take the tough risks that intelligence and espionage demand.

I am very proud of what you do, here and abroad, to protect the United States. Your skill, courage, commitment, and focus on mission make the CIA indispensable to the nation. It is a privilege to serve with you.

Leon E. Panetta

The New York Times reports that a different OPR report, prepared for Attorney General Eric Holder, has advised re-opening investigations of CIA interrogators who tortured detainees. That clears the way for the investigation that Holder is widely expected to announce as early as today. But without the OPR inquiry on the Office of Legal Counsel — which Holder has pledged to declassify — the CIA inspector general report will present stories outside of the context that gave rise to them. The CIA constantly went back and forth with the Justice Department during the Bush administration to ensure that the valued interrogation program had the cover of law. Without that context, it won’t be possible to understand what drove interrogators to enter those interrogation chambers, even if the torture they applied was more severe than what the department’s lawyers specified was acceptable.

All of which leads Marcy Wheeler to conclude:

If it is, indeed, DOJ’s plan to release all the other torture documents save the OPR report, it will have the effect of distracting the media with horrible descriptions of threats with power drills and waterboarding, away from the equally horrible description of lawyers willfully twisting the law to “authorize” some of those actions. It will shift focus away from those that set up a regime of torture and towards those who free-lanced within that regime in spectacularly horrible ways. It will hide the degree to which torture was a conscious plan, and the degree to which the oral authorizations for torture may well have authorized some of what we’ll see in the IG Report tomorrow.

If it is, indeed, DOJ’s plan to release the IG Report and announce an investigation without, at the same time, releasing the OPR report, it will serve the goal of exposing the Lynndie England’s of the torture regime while still protecting those who instituted that regime.

“President Obama made a commitment to transparency and accountability, and it’s time for his administration to make good on that promise,” said Amrit Singh, staff attorney with the ACLU. “The CIA Inspector General report is a crucial document that would shed light on the origins and scope of the CIA’s torture program. The American public has a right to know the full truth about the torture that was committed in its name.”

How gruesome are the accounts of torture contained in the 2004 report? According to Newsweek, so bad that Attorney General Eric Holder is considering reversing an earlier inclination against empanelling a prosecutor to investigate the abuse.