A US flag flies over the US military prison at Guantanamo Bay, Cuba. (Photo: Getty Images)
CIA interrogators were given legal authorization to slam an alleged "high-value" detainee's head against a wall, place insects inside a "confinement box" to induce fear and force him to remain awake for 11 consecutive days, according to a closely guarded August 1, 2002, legal memo released publicly by the Justice Department for the first time on Thursday.
The memo, signed by the former head of the Justice Department's Office of Legal Counsel (OLC), Jay Bybee, was written about a week after Bybee's office had given the CIA verbal authorization that subjecting the detainee to seven other brutal interrogation methods would not violate torture laws.
"This letter memorializes our previous oral advice given on July 24, 2002 and July 26, 2002, that the proposed conduct would not violate the prohibition against torture," wrote Bybee, who now has a lifetime judgeship on the Ninth Circuit US Court of Appeals. CIA interrogators would not be in violation of torture laws, Bybee wrote, because they would not be acting with the intent to inflict "severe pain or suffering" by subjecting detainees to the brutal interrogation methods outlined in the memo.
"To violate the [torture] statute, an individual must have the specific intent to inflict severe pain or suffering," Bybee wrote. "Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture.
"Based on the information you have provided us, we believe that those carrying out these procedures would not have the specific intent to inflict severe pain or suffering. The objective of these techniques is not to cause severe physical pain. First, the constant presence of personnel with medical training who have the authority to stop the interrogation should it appear it is medically necessary indicates that it is not your intent to cause severe physical pain."
However, Bybee added, "we wish to emphasize that this is our best reading of the law; however, you should be aware that there are no cases construing this statute, just as there have been no prosecutions brought under it."
Three other torture memos, written in May 2005 by Steven Bradbury, the former acting head of OLC, were also released on Thursday as part of a Freedom of Information Act lawsuit the ACLU filed against the Bush administration.
The Justice Department's Office of Professional Responsibility investigated Bradbury, Bybee and former OLC attorney John Yoo, who is believed to be the principal author of the memo Bybee signed. The probe is said to have concluded that all three provided the Bush administration with poor legal advice and acted as advocates for administration policy rather than independent lawyers.
Bradbury's reinstated the torture methods and their legal justification after his predecessor, Jack Goldsmith, withdrew the torture memos in 2004. Goldsmith said the torture memos were "sloppily reasoned" and "legally flawed."
One of Bradbury's memos said, "Interrogators may combine water dousing with other techniques, such as stress positions, wall standing, the insult slap, or the abdominal slap."
The release of the memos followed weeks of intense debate and pit the White House and Justice Department against the CIA, which argued against releasing the documents. Unnamed CIA officials were quoted as saying that releasing the memos would provide al-Qaeda with a recruitment tool despite the fact that much of the information in the documents has been known for some time.
Former CIA Director Michael Hayden sharply criticized President Barack Obama's decision to release the memos, telling The Associated Press the documents will now "deter other governments from cooperating with the United States because it shows the US can't keep anything secret.
Bybee's August 1, 2002, memo is one of two legal opinions that was written on that date. Another memo, written by Yoo, had provided the Bush administration with the legal framework for torturing prisoners and has been previously released. Yoo relied upon an obscure 2000 health benefits statute to narrow the definition of torture in a way that permitted waterboarding.
The August 1, 2002, memo released on Thursday authorized specific techniques CIA interrogators could use to try and extract information from prisoners.
That memo indicates that it was written specifically to allow CIA interrogators to use ten techniques against Abu Zubaydah, an alleged al-Qaeda lieutenant, who was captured in Pakistan in March 2002 and flown to a CIA "black site" prison where he was tortured. Zubaydah's systematic torture was documented in a February 14, 2007, report prepared by the International Committee of the Red Cross, which was published in its entirety a couple of weeks ago.
Bybee's memo contains choreographed instructions from the CIA on how the techniques would be administered to Zubaydah.
"For walling, a flexible wall will be constructed," Bybee wrote. "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. It is the individual's shoulder blades that hit the wall. During this motion the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash."
In describing the use of waterboarding, Bybee wrote:
"You have also orally informed us that it is likely that this procedure would not last more than twenty minutes in any one application. As we understand it, when the waterboard is used, the subject's body responds as if the subject were drowning - even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain.
"As we explained in the Section 2340A Memorandum, 'pain and suffering' as used in Section 2340 is best understood as a single concept, not distinct concepts of 'pain' as distinguished from 'suffering'.... The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict 'severe pain and suffering.' Even if one were to parse the stature more 'finely' to attempt to treat suffering as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering."
On using sleep deprivation against Zubaydah, Bybee said:
"You have indicated that your purpose in using this technique is to reduce the individual's ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate. The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation.
"Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction. You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted."
On using insects, Bybee said:
"You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us he has a fear of insects. As we understand it, no actually harmful insect will be placed in the box. Thus, though the introduction of an insect may produce trepidation in Zubaydah it certainly does not cause physical pain."
However, Bybee wrote, the CIA "must inform [Zubaydah] that the insects will not have a sting that would produce death or severe pain." Ultimately, this technique was never used against Zubaydah.
According to Zubaydah's account to the International Committee of the Red Cross, he was subjected to brutal methods.
"Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow," Zubaydah told an ICRC representative, according to the organization's report. "Measuring perhaps in area [3 1/2 by 2 1/2 feet by 6 1/2 feet high]. The other was shorter, perhaps only [3 1/2 feet] in height. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face....
"I was then put into the tall black box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside.... They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe.
"When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck. I think that the plywood was put there to provide some absorption of the impact of my body. The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury."
In his book "The One Percent Doctrine," author Ron Suskind reported that President George W. Bush had become obsessed with Zubaydah and the information he might have about pending terrorist plots against the United States.
"Bush was fixated on how to get Zubaydah to tell us the truth," Suskind wrote. Bush questioned one CIA briefer, "Do some of these harsh methods really work?"
Besides the use of insects, Bybee's memo said the authorized interrogations methods included the near-drowning technique waterboarding, slamming the detainee's head against a wall (referred to as "walling"), "facial hold," "facial slap (insult slap)," "cramped confinement," "wall standing," "stress positions" and "sleep deprivation."
"Our advice is based upon the following facts, which you have provided us," says Bybee's memo sent to John Rizzo, then the CIA's acting general counsel. "Zubaydah is currently being held by the United States. The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas.
"Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently a level of 'chatter' equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogation into what you have described as an ‘increased pressure phase.'"
Approved by Top Bush Officials
At the time OLC provided verbal authorization to the CIA, according to documents released by a Senate committee last year, senior Bush administration officials met to discuss the specific techniques to use against detainees.
In July 2002, a meeting was convened at the White House, where former White House counsel Alberto Gonzales, Justice Department attorney John Yoo, Vice President Dick Cheney, Cheney's attorney David Addington and unknown CIA officials discussed whether the CIA could interrogate Zubaydah more aggressively in order to get him to respond.
It was at this July 2002 meeting that Yoo, Gonzales and Addington gave the CIA the green light to use a wide variety of techniques, including waterboarding, on Zubaydah and other detainees at several secret prisons to "break" them and force them to cooperate with interrogators, according to an account published in Newsweek in late December 2003.
Additionally, Secretary of Defense Donald Rumsfeld and his legal counsel, William Haynes, solicited input from military psychologists about developing harsh methods that interrogators could use against detainees who were being held at the US naval base at Guantanamo Bay, Cuba.
"Mr. Haynes was not the only senior official considering new interrogation techniques for use against detainees," the report said. "Members of the President's Cabinet and other senior officials attended meetings in the White House where specific interrogation techniques were discussed."
John B. Bellinger, the legal adviser to National Security Adviser Condoleezza Rice, said he recalled participating in meetings with Ashcroft and Rumsfeld in July 2002 about an Army and Air Force survival training program called Survival, Evasion, Resistance and Escape (SERE); SERE was meant to prepare US soldiers for abuse they might suffer if captured by an outlaw regime. But it was reverse engineered and used against detainees.
According to Bybee's memo, under this new "phase" of interrogation, Zubaydah would only have contact with a new "interrogation specialist" and a psychologist who specialized in the military's SERE program "who has been involved with the interrogations since they began."
"This phase will likely last no more than several days but could last up to thirty days," Bybee's memo says.
Zubaydah Mentally Ill
According to Suskind, Zubaydah's captors soon discovered that their prisoner was mentally ill and knew nothing about terrorist operations or impending plots. That realization was "echoed at the top of CIA and was, of course, briefed to the President and Vice President," Suskind wrote.
Still, in public statements, President Bush portrayed Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States" and added, "So, the CIA used an alternative set of procedures" to get Zubaydah to talk.
The president did not want to "lose face" because he had stated Zubaydah's importance publicly, Suskind wrote.
Zubaydah was strapped to a waterboard and, fearing imminent death, he spoke about a wide range of plots against a number of US targets, such as shopping malls, the Brooklyn Bridge and the Statue of Liberty. Yet, Suskind wrote, Zubaydah's information under duress was judged not credible.
Still, that did not stop "thousands of uniformed men and women [who] raced in a panic to each ... target," Suskind wrote. "The United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."
CIA Interrogators Protected
Moments before the memos were released, the White House issued a statement from Obama, who was in Mexico on Thursday, which said that CIA interrogators who carried out the torture of 28 of the 94 "high-value" detainees and who relied "in good faith upon legal advice from the Department of Justice ... will not be subject to prosecution."
"This is a time for reflection, not retribution," Obama said in a statement released by the White House. "I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."
However, documents released by the Justice Department last week in connection with a separate lawsuit the ACLU filed over the destruction of interrogation videotapes says the CIA began videotaping interrogations of two alleged "high value" terrorist detainees in April 2002, four months before Bybee issued his memo.
Attorney General Eric Holder said on Thursday he told the CIA that the federal government would provide legal representation "to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee's behalf and asserting any available immunities and other defenses in the proceeding itself."
"To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations," Holder said. "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department."
Director of National Intelligence Dennis Blair said the methods used by CIA interrogators, "read on a bright, sunny, safe day in April 2009, appear graphic and disturbing. As the President has made clear, and as both CIA Director Panetta and I have stated, we will not use those techniques in the future. But we will absolutely defend those who relied on these memos and those guidelines."
Two members of Congress said the contents of the memos beg for some sort of investigation. The memos were shared with members of Congress before they were released on Thursday.
Senate Judiciary Committee Chairman Patrick Leahy reiterated his calls for a bipartisan "truth commission."
"The Bush administration not only ran roughshod over our values and law, they undercut the public trust of the American people and tarnished American's prestige and authority throughout the world," Leahy said. "These legal memoranda demonstrate in alarming detail exactly what the Bush administration authorized for 'high value detainees' in US custody. The techniques are chilling. This was not an 'abstract legal theory,' as some former Bush administration officials have characterized it. These were specific techniques authorized to be used on real people.
"We cannot continue to look the other way; we need to understand how these policies were formed if we are to ensure that this can never happen again. This is why my proposal for a Commission of Inquiry is necessary. We must take a thorough accounting of what happened, not to move a partisan agenda, but to own up to what was done in the name of national security, and to learn from it."
But Leahy has previously said that such a committee would never get off the ground without the support of Republicans.
Sen. Carl Levin (D-Michigan), who chairs the Senate Armed Services Committee, said, "If we are to retain our status as a leader in the world, we must acknowledge and confront these abuses. Only then can we credibly object to the use of abusive tactics on our troops when they are captured."
Levin's committee is expected to release the full-declassified report on the roles senior Bush administration officials played in implementing torture at Abu Ghraib and Guantanamo. The report, which is 200 pages and contains 2,000 footnotes, is in the process of being declassified by the Defense Department.
House Judiciary Committee Chairman John Conyers, who requested a couple of weeks ago that Holder appoint a special prosecutor to begin a criminal investigation into the Bush administration's use of torture, did not renew those calls following the release of the memos.
"The legal analysis and some of the techniques in these memos are truly shocking and mark a disturbing chapter in our nation's history," Conyers said. "Hopefully these practices have been ended for all time. Critical questions still remain, including the role and legal culpability of high-ranking officials in the former administration in directing and approving the use of these troubling techniques. I urge the administration to continue to ensure that the rule of law is upheld concerning this matter."
Jameel Jaffer, director of the ACLU's National Security Project, said Bybee's memo along with three others written in May 2005 by former acting OLC head Steven Bradbury "are based on legal reasoning that is spurious on its face, and in the end these aren't legal memos at all - they are simply political documents that were meant to provide window dressing for war crimes."
Before leaving the vice presidency, Cheney acknowledged that he personally "signed off" on the waterboarding of al-Qaeda suspect Abu Zubaydah and two other alleged terrorist detainees and personally approved brutal interrogations of 33 others.
"I was aware of the program, certainly, and involved in helping get the process cleared, as the [Central Intelligence] Agency, in effect, came in and wanted to know what they could and couldn't do," Cheney said in an interview last December with "ABC News." "And they talked to me, as well as others, to explain what they wanted to do. And I supported it."