I emphasized to the president that Tenet also believed that the techniques approved by Justice were effective. It was during this conversation that I first raised the subject of waterboarding. But President Bush had already talked to Tenet about it. He seemed to be reassured about moving forward by the fact that thousands of our own military troops had been subjected to this procedure as part of their survival training.
I informed the president that Tenet had asked me why we were so worried from an international law standpoint. “I told him the truth,” I said to the president. “Because some ICC prosecutor might try to pick us all up someday!’ ”
After my conversation with the president, I spoke again with George Tenet. He was now nervous about moving forward with the enhanced interrogations. He wanted something in writing, declaring they were legal and that the CIA could proceed. “You’ll have it shortly,” I promised. The lawyers in my office and I had been reading a draft of the opinion from DOJ that very afternoon. I encouraged him that if he felt the country was at risk, based on the verbal go-ahead from Justice, he could proceed. He responded that he was having trouble with his group. He needed to get them back on board. He also expressed concern about being brought to The Hague for prosecution.
I had mixed emotions about the CIA interrogations after our conversation. The agents lived to gather information to protect our country, but they would be placing their careers in jeopardy by doing these interrogations. It was hard to view this as strictly a legal judgment. Even with a DOJ opinion, in the future, agents could be subject to second-guessing and criticism by a hostile Congress, and most certainly by the international community. Although Congress was quite cooperative with the president following the devastating attacks on 9/11, the atmosphere could change quickly. There was no guarantee that our own senators or congressmen would not decide at some future date to come back and demand—on the basis of legal guidance from the Justice Department—that the agents be prosecuted for doing their jobs.9
While having an opinion from the DOJ made it unlikely that agents would actually go to jail—unless they acted beyond the scope of the opinion—the enormous expenses and prolonged inconveniences incurred by an agent having to hire lawyers to defend himself or herself would decimate most, if not all. It was a ludicrous situation: if the agents did their jobs well, getting the information we needed to protect our nation from attack, the agents themselves might be attacked in court. And worse yet, our DOJ could not protect our interrogators from potential lawsuits and prosecutions in foreign courts, where they might lose. They were at risk, not because they had violated a legal standard applicable to Americans but rather one that had been rejected by the United States and adopted by other countries.
I was glad that Tenet was thinking about these possibilities. It was a time of courage, regardless of the consequences.
On July 30, I received a call from Senior Attorney John Rizzo at the CIA. He reported that Tenet was ready to go forward with the enhanced interrogation of Zubaydah. These past four days must have been interesting at the CIA, I thought, as Tenet worked to reassure his team.
The OLC legal opinion—stating that it was lawful to proceed in questioning detainees such as Zubaydah by using enhanced interrogations—was signed by Jay Bybee, the assistant attorney general for the Office of Legal Counsel. It came out August 1, 2002, and was addressed to John Rizzo. Because we might have to rely on it someday, the OLC issued a second important opinion addressed to me that examined the United States anti-torture statute in relation to the president’s commander in chief authority.
Think about that: we captured Zubaydah on March 28, 2002, and it took four months to weigh out the issues surrounding his interrogation. Some of the most brilliant lawyers in our government grappled with the questions of how, why, in what manner, and the ramifications of interrogating the terrorists who had perpetrated the 9/11 act of terrorism. These were not knee-jerk reactions, casual conclusions drawn in haste or in the heat of emotion. These techniques were analyzed from every angle and deemed necessary to gather information that would protect our citizens. And the decisions were made by people who love our country and who were willing to risk their careers and reputations to protect it in accordance with the law.
The OLC opinion regarding the CIA-designed techniques, including waterboarding, was the first attempt by the executive branch of our government to interpret the scope of the domestic anti-torture statute.
Until recently, most Americans had little idea what the enhanced interrogations entailed. When the media and others decried the Bush administration for authorizing “torture,” understandably many people imagined the worst—needles under the fingernails, piercing of eyeballs, electrodes to genitals, and broken limbs—all of which were prohibited by the administration guidelines. Yet in a day when ISIS is decapitating Christians with swords, CIA efforts to extract vital information regarding future al-Qaeda plans might seem embarrassingly benign to many people, especially those American families who have lost loved ones to terrorism. From the OLC order originally classified as top secret but recently declassified, this is the description of the ten enhanced techniques that the CIA was initially authorized to perform:
(1) Attention grasp. The attention grasp consists of grasping the individual with both hands, one hand on each side of the collar opening, in a controlled and quick motion. In the same motion, the individual is drawn toward the interrogator.
(2) Walling. A flexible false wall is constructed and the individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall, so his shoulder blades hit the wall. The head and neck are supported to prevent whiplash.
(3) Facial hold. The facial hold is used to hold the head immobile.
(4) Facial slap. The interrogator slaps the individual’s face with fingers slightly spread. The purpose of the facial slap is not to inflict pain but to induce shock, surprise, and/or humiliation.
(5) Cramped confinement. This restricts the individual’s movement in a dark, confined space.
(6) Wall standing. Standing with arms stretched out, fingers against the wall to produce muscle fatigue.
(7) Stress positions. These are not bodily contortions, but positions such as sitting on the floor with the legs stretched out or arms above the head.
(8) Sleep deprivation.
(9) Insects placed in a confinement box. The individual is placed in a box along with a “stinging insect,” that is actually a harmless insect such as a caterpillar.
(10) Waterboarding. The individual is bound securely to an inclined bench, feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This produces the perception of “suffocation and incipient panic,” i.e., the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated.10
Legal support for four additional techniques was provided and the “insect” technique removed in a May 10, 2005, memo to Rizzo from OLC’s Steven Bradbury. The added techniques were diet manipulation, nudity, abdominal slapping, and water dousing.
These were the techniques that OLC advised could be done. Certainly most people would consider some or all of these techniques unpleasant, perhaps even cruel, inhumane, and degrading. I surely would consider it awful if they were applied to me. Some people might even regard them as “torture,” but according to the Justice Department, these techniqu
es, when administered in a controlled environment with the appropriate safeguards, fell within the guidelines of our domestic and international legal obligations.11
The following week, the CIA briefed key members of the congressional Intelligence Committee regarding the enhanced techniques they planned to use. I worried that by informing Congress, we ran the risk of leaks that might alert our enemies of our plans, but the CIA understood it was only a matter of time before their actions would become public. They wanted the White House and the Congress alongside when the critics started howling and everything hit the fan. Over time, congressional leaders, both Democrat and Republican, would receive more than thirty briefings about the interrogations. For our so-called leaders to say later on that they were never informed about these matters or did not understand is not only a lie, it is unconscionable and cowardly.
Nevertheless, concerned about another attack and our inability to collect helpful intelligence, the CIA—not the military, which ran Gitmo—sought and received approval to use enhanced techniques when questioning senior-level detainees who might have knowledge of impending attacks. The two key questions President Bush repeatedly asked me regarding the enhanced interrogation techniques were: “Is it lawful?” and “Is it effective?” In both cases, I replied, “Yes.” To my knowledge, during my time in the Bush administration, enhanced techniques were approved and applied to only three senior-level detainees.
Of course, as a Christian, I grappled with the morality of any actions that hinted at treating another human being—even a known terrorist—inhumanely. Every step of the way, however, these techniques were deemed lawful by the Department of Justice and accepted by key members of the National Security Council, unlike the abuse of Iraqi detainees by a few miscreants that took place at Abu Ghraib prison.
Indeed, over time, OLC rendered several legal opinions, signed by three separate top-tier lawyers and approved by three separate attorneys general, regarding enhanced interrogation techniques. President Obama’s FBI director, in his former capacity as deputy attorney general, also agreed the techniques were lawful, when applied individually, so it wasn’t Bush’s war on terror or Cheney’s advocacy of interrogation that carried the day.12 These techniques were declared legal and necessary because they were.
These were not arbitrary decisions made in a moral vacuum. Even after receiving Department of Justice approval, CIA director George Tenet was concerned about going forward with enhanced interrogations for fear of future political witch-hunts. But as Condi Rice reminded us in the Situation Room, this was a group decision and we all had to hold hands and assume responsibility as we took a leap of faith together, believing that our course was not only effective, but lawful and just.
According to Tenet, NSA director Mike Hayden, and others testifying under oath, the valuable information obtained through the interrogation methods helped save many lives.
Using the enhanced methods, CIA interrogators helped Zubaydah loosen his tongue. He provided key information that led to the capture of Ramzi bin al-Shibh, a Yemeni student who had studied with three of the 9/11 hijackers and possibly would have been one of them, but he could not obtain a US visa. Instead, he served as the communications link between the hijackers and the planners of the 9/11 attacks. Following 9/11, bin al-Shibh was in Pakistan plotting to use commercial airliners to strike London when he was captured by Pakistani authorities on the first anniversary of 9/11.
It was bin al-Shibh who then led to the capture of Khalid Sheikh Mohammed, KSM as we came to refer to him, the so-called mastermind of the 9/11 attacks and the preeminent source on al-Qaeda. Similar enhanced interrogations helped KSM to provide information on future al-Qaeda attack plans and probable targets. It was KSM who disclosed a terrorist cell in Karachi, Pakistan, where al-Qaeda terrorists were thought to be plotting to fly a hijacked plane into the tallest building on the West Coast.13
The guidance from the DOJ was for interrogations done by agents of the CIA, not the military. Historically, our soldiers have long abided by the interrogation methods outlined in the US Army Field Manuals. Consequently, at the beginning of Operation Enduring Freedom, our military interrogated enemy combatants according to those standards. The al-Qaeda training manual, however, taught their recruits how to defeat or resist the well-known US interrogation techniques. Not surprisingly, our soldiers were frustratingly unsuccessful at getting valuable information from the combatants they questioned. Clearly, there was a national security need for the Department of Defense to develop alternatives.
That became even more obvious when a captured al-Qaeda member, Mohammed al-Qahtani, was detained at Guantanamo Bay. A skilled liar, al-Qahtani flicked away FBI questions and those of the military officers at Gitmo. But interrogators were convinced that he knew about the inner workings of al-Qaeda, and the information he held could be important. The intercepted terrorist chatter throughout the late summer and early fall increased, causing us concern that al-Qaeda was planning something big—soon.
Meanwhile, a detainee with potentially valuable information sat comfortably in Guantanamo Bay. Military intelligence believed that al-Qahtani knew information related to ongoing al-Qaeda activities or another attack. But they weren’t getting anywhere questioning him according to the US Army Field Manuals techniques.
Consequently, on October 11, 2002, officials at Guantanamo asked for permission to use additional methods. During the next two months, Jim Haynes worked with John Yoo to develop a set of interrogation techniques that would be effective and would also satisfy domestic and international anti-torture standards. These would be presented to Defense Secretary Rumsfeld.
Jim kept me generally informed about the legal issues affecting DOD, but I did not get involved in these discussions to the depth that I had initially concerning the CIA interrogations standards. We discussed the DOD progress, but whenever Jim raised an issue regarding the techniques with me, I told him he needed to work it out with DOJ. I anticipated that the methods the military would be comfortable adopting would not be as aggressive as those of the CIA. But I trusted Jim and John Yoo to work through these matters. For the same reasons previously noted, I did not have conversations with the president regarding specific details of the DOD plans, except to let him know that DOD was working on it and would review their plans with DOJ for effectiveness and legality.
Following the receipt of legal advice from OLC, on December 2, Jim Haynes presented three categories of interrogation techniques for Don Rumsfeld’s approval. Understand, we’re not talking about pulling off a detainee’s fingernails or applying electric shocks to his genitals—as had been done to some American POWs. No, in category one, interrogators could yell at a captive; in category two, they could deprive the detainee of light and sound or do other things that might cause him or her to feel isolated or disoriented, such as making him stand in the same place or standing with his face to a wall for hours; they might even deprive the detainee of hot meals and make him eat military-style packaged meals. In category three, the techniques included subjecting the detainee to cold temperatures, removal of his clothing, making the detainee believe that he or his family member might suffer pain or death if he did not cooperate, poking a detainee in the chest with a finger, pushing, grabbing, and other mild physical contact, water dousing, up to the use of waterboarding.14
Although all three categories of interrogation techniques were approved by the DOJ, the military JAGs responded with strong criticism and pressure. Within a month, the secretary of defense withdrew permission for categories two and three and sent a written directive approving only the techniques in the Army Field Manuals. He also directed the formulation of a group chaired by Mary Walker, air force general counsel, to examine military interrogation techniques.
All the while, al-Qahtani remained in a cell in Guantanamo.
And US officials worried about another possible plot. But again, contrary to the public’s perception fostered by movies, the military culture is strongly averse to using questionin
g techniques beyond those in the Army Field Manuals. US military personnel know that one of the fastest ways they can find themselves in a court-martial situation is to act contrary to the field manuals.
It was my understanding that the field manual pertaining to interrogation was designed with the assumption that the United States would be dealing with prisoners of war, a status to which we granted the highest protections—including protections from torture. I do not believe the manual was ever intended to deal with unlawful enemy combatants—terrorists—who violate the laws of war. The military, however, made no such distinction between those it detained.
Don Rumsfeld expected the results from Walker’s working group within a couple of weeks. That didn’t happen. Their work stretched from two weeks to two months. When Khalid Sheik Mohammed was captured in early March 2002, the urgency to complete the DOD rules of interrogation heightened.
Exacerbating matters, by the end of March, the CIA inspector general launched an investigation into possible wrongdoing by CIA agents in connection with the death of a detainee. I also heard rumors of an interrogator waving a gun at a detainee—something that an American interrogator was not permitted to do. That went beyond the legal guidance DOJ had provided to the CIA.
Additionally, the Senate Select Committee on Intelligence requested a copy of the DOJ opinion to the CIA. Keep in mind, from the outset of the program, the senators had received periodic briefings on the CIA’s enhanced interrogations. But now they had also been briefed about the death of a detainee and the possible gun-waving incident. They wanted to know what was going on.
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