(Photo: Rory Kennedy)
The seeds for the Bush administration's policy of torture were planted in December 2001, nearly a year before the Justice Department issued its first legal opinion that authorized CIA interrogators to torture "war on terror" prisoners, and the creation of the policy involved senior White House officials, according to a newly declassified report released late Tuesday by the Senate Armed Services Committee.
By December 2001, the Department of Defense (DoD)had already begun to solicit information on "detainee exploitation" from the Joint Personnel Recovery Agency (JPRA), a DoD agency that trained the military to withstand interrogation methods considered illegal under the Geneva Conventions. The JPRA oversees a training program known as Survival Evasion Resistance and Escape (SERE) training.
"As one JPRA instructor explained, SERE training is 'based on illegal exploitation (under the rules listed in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War) of prisoners over the last 50 years,' the Armed Services Committee report said. "The techniques used in SERE school, based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy's SERE school, it included waterboarding."
The SERE program, however, was reverse-engineered and used against "high-value" detainees at Guantanamo Bay and Abu Ghraib prison in Iraq. All of the methods described above, as well as several other brutal techniques, were used during the interrogations of prisoners at Guantanamo, according to four Justice Department "torture" memos released last week.
The report, released by Sen. Carl Levin, the chairman of the Armed Services Committee, is the most detailed account to date of the roles senior Bush administration and DoD officials played in implementing a policy of torture. The report is 232 pages and contains 1,800 footnotes. It is based on the testimony of 70 people and more than 200,000 pages of internal government documents. It was unanimously accepted by the committee last November and has been going through the declassification process since then.
In a statement accompanying the report, Levin said he has recommended that Attorney General Eric Holder "select a distinguished individual or individuals - either inside or outside the Justice Department, such as retired federal judges - to look at the volumes of evidence relating to treatment of detainees, including evidence in the Senate Armed Services Committee's report, and to recommend what steps, if any, should be taken to establish accountability of high-level officials - including lawyers.."
Calls for Investigations
Coming on the heels of the "torture" memos, the Armed Services Committee report puts enormous pressure on the Obama administration and Congress to immediately launch a full-scale inquiry into the Bush administration's policy of torture, in violation of federal and international laws.
On Tuesday, in a departure from statements he has made since his January 20 inauguration, Obama said he was open to the idea of a 9/11-type commission to probe the Bush administration's torture policies, but he said he was concerned "about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out critical national security operations."
As for the possibility of prosecuting former Bush administration lawyers who drafted the memos, Obama said, "that is going to be more of a decision for the attorney general within the parameters of various laws, and I don't want to prejudge that."
Levin's report identifies former Defense Secretary Donald Rumsfeld as one of the principal architects of the program and said a Feb. 7, 2002 memorandum signed by George W. Bush suspending the Geneva Conventions for "war on terror" prisoners was directly responsible for the abuse.
The report found that "in July 2002, at the request of [DoD] General Counsel Jim Haynes's office, the [JPRA] ... provided Haynes's office a list of techniques used in SERE school and an assessment of the psychological effect of using those techniques on students."
A military behavioral scientist told the Armed Services Committee "by early October  there was increasing pressure to get 'tougher' with detainee interrogations" at Guantanamo.
The behavioral scientist said he was told by the head of intelligence at Guantanamo that an interrogation memo needed to explicitly authorize "coercive techniques or it 'wasn't going to go very far.'"
"Declassified excerpts from that memo indicate that it included stress positions, food deprivation, forced grooming, hooding, removal of clothing, exposure to cold weather or water, and scenarios designed to convince a detainee that 'he might experience a painful or fatal outcome,'" the report said.
"On October 11, 2002, Maj. Gen. Michael Dunlavey, the Commander of [Joint Task Force-170 at Guantanamo] requested authority to use aggressive techniques," according to the report. "Dunlavey's request was based on the memo produced by the behavioral scientists."
Dunlavey's request eventually made its way to Haynes's desk. Haynes recommended that Rumsfeld approve 15 of the interrogation techniques. Rumsfeld issued a verbal and written authorization in December 2002 allowing interrogators to use "stress positions, isolation for up to 30 days, removal of clothing and the use of detainees' phobias (such as the use of dogs)."
Rumsfeld's approval of certain interrogation methods outlined in a December 2002 action memorandum was criticized by Alberto Mora, the former general counsel of the Navy.
"The interrogation techniques approved by the Secretary [of Defense] should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture, a degree of mistreatment not otherwise proscribed by the memo because it did not articulate any bright-line standard for prohibited detainee treatment, a necessary element in any such document," Mora, who was forced out of his position, wrote in a 14-page letter to the Navy's inspector general.
The Armed Services Committee probe also revealed that immediately after Rumsfeld approved of the interrogation techniques, senior officials at Guantanamo "drafted a standard operating procedure (SOP) for the use of SERE techniques, including stress positions, forcibly stripping detainees, slapping, and 'walling' them."
Torture Trickles Down to Afghanistan
The Armed Services Committee report said "the influence of Secretary Rumsfeld's December 2, 2002, authorization was not limited to interrogations at [Guantanamo]."
"Newly declassified excerpts from a January 11, 2003, legal review by a Special Mission Unit (SMU) Task Force lawyer in Afghanistan state that 'SECDEF's approval of these techniques provides us the most persuasive argument for use of "advanced technique" as we capture possible [high value targets] … the fact that SECDEF approved the use of the… techniques at GTMO, [which is] subject to the same laws, provides an analogy and basis for use of these techniques [in accordance with] international and U.S. law.'"
"Secretary of Defense Donald Rumsfeld's authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there," the Armed Services Committee report concluded. "Secretary Rumsfeld's December 2, 2002 approval of Mr. Haynes's recommendation that most of the techniques contained in [Guantanamo's] October 11, 2002 request be authorized, influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq."
The report also for the first time highlights the numerous warnings the Bush administration received about using the SERE program in an offensive manner.
"On October 2, 2002, Lieutenant Colonel Morgan Banks, the senior Army SERE psychologist warned against using SERE training techniques during interrogations in an email to personnel at GTMO, writing that:
'[T]he use of physical pressures brings with it a large number of potential negative side effects … When individuals are gradually exposed to increasing levels of discomfort, it is more common for them to resist harder … If individuals are put under enough discomfort, i.e. pain, they will eventually do whatever it takes to stop the pain. This will increase the amount of information they tell the interrogator, but it does not mean the information is accurate. In fact, it usually decreases the reliability of the information because the person will say whatever he believes will stop the pain … Bottom line: the likelihood that the use of physical pressures will increase the delivery of accurate information from a detainee is very low. The likelihood that the use of physical pressures will increase the level of resistance in a detainee is very high …'"
Additionally, the Deputy Commander of the Pentagon's Criminal Investigative Task Force at Guantanamo told Levin's committee in an interview in 2006 that his department "was troubled with the rationale that techniques used to harden resistance to interrogations would be the basis for the utilization of techniques to obtain information."
Newly declassified emails also reveal that in June 2004, the use of SERE tactics was considered for use at Guantanamo Bay. That prompted a SERE psychologist to warn Pentagon officials: "[W]e need to really stress the difference between what instructors do at SERE school (done to INCREASE RESISTANCE capability in students) versus what is taught at interrogator school (done to gather information). What is done by SERE instructors is by definition ineffective interrogator conduct … Simply stated, SERE school does not train you on how to interrogate, and things you 'learn' there by osmosis about interrogation are probably wrong if copied by interrogators."
The report concluded that "members of [Bush's] Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA's interrogation program during that period."
John Yoo, a deputy assistant attorney general at the Justice Department's Office of Legal Counsel, participated in several of these meetings prior to writing a legal opinion authorizing interrogators to subject detainees to waterboarding and other brutal techniques.
Last year, in response to questions by Armed Services Committee Chairman Carl Levin, Condoleezza Rice, who was the national security adviser when interrogation methods were discussed, said that beginning as early as the summer of 2002, Yoo provided legal advice at "several" meetings that she attended and that the Department of Justice's advice on the interrogation program "was being coordinated by Counsel to the President Alberto Gonzales."
Yoo met with Gonzales and David Addington, counsel to Vice President Dick Cheney, to discuss the subjects he intended to address in the August 2002 torture memos, the report said.
"Senior Administration lawyers, including Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, were consulted on the development of legal analysis of CIA interrogation techniques," according to the report. "Legal opinions subsequently issued by the Department of Justice's Office of Legal Counsel (OLC) interpreted legal obligations under U.S. anti-torture laws and determined the legality of CIA interrogation techniques.
"Those OLC opinions distorted the meaning and intent of anti-torture laws, rationalized the abuse of detainees in U.S. custody and influenced Department of Defense determinations as to what interrogation techniques were legal for use during interrogations conducted by U.S. military personnel."
Rice told Levin that when the CIA sought approval of the interrogation program she asked Tenet to brief the principals and asked Attorney General John Ashcroft to "personally advise NSC Principals whether the program was lawful."
John Bellinger, Rice's legal adviser, told Levin that he asked CIA lawyers to seek legal advice not only from the OLC, but also from the Criminal Division of the Department of Justice, headed at the time by Michael Chertoff.
Chertoff reportedly advised the CIA general counsel Scott Muller and his deputy, John Rizzo, that the August 1, 2002, legal opinion protected CIA interrogators from prosecution if they used waterboarding or other harsh tactics.
In February 2005, during his Senate confirmation hearing to become Homeland Security secretary, Chertoff said he provided the CIA broad guidance in response to its questions about interrogation methods, but never addressed the legality of specific techniques.
"Torture Memo" Author
Last June, Levin said he sent Jay Bybee, the former assistant attorney general at OLC who signed the infamous August 1, 2002 torture memo, a list of questions about the implementation of SERE methods.
"In his response to my questions, Jay Bybee said that, in July 2002 - just before those two OLC opinions were issued and about the same time Jim Haynes's office requested a list of SERE training techniques and information on the psychological effects of SERE (including waterboarding), the CIA provided OLC with an assessment of the psychological effects of SERE resistance training," Levin said last December. "Jay Bybee wrote me that the assessment provided by the CIA was used to 'inform' the August 1, 2002 OLC legal opinion. (CIA officials, including George Tenet and acting General Counsel John Rizzo declined to answer questions relating to both that assessment and the CIA's interrogation program.)
"Judge Bybee's answers provide insight into how senior officials in the United States government sought information on aggressive techniques used in SERE training, twisted the law to create the appearance of their legality, and authorized their use against detainees."
Bybee is now a judge on the Ninth Circuit Court of Appeals in San Francisco. Last week, the Justice Department declassified his August 1, 2002, legal opinion that permitted the CIA to beat and waterboard detainees.
Abu Zubaydah's Torture
The declassified report also includes a full account about the fierce objections the FBI had toward the CIA's interrogation of Abu Zubaydah, an alleged "high-value" al-Qaeda detainee, and suggests that his torture preceded an August 1, 2002 Justice Department legal opinion.
According to a Justice Department report released last year about the FBI's role in harsh interrogations, inspector general Glenn Fine said two FBI agents, identified by the pseudonyms "Thomas" and "Gibson, interviewed Zubaydah shortly after he was captured in March 2002. One of the agents even tended to Zubaydah's gunshot wounds.
The FBI claimed, according to Fine's report, that Zubaydah had provided valuable intelligence via "rapport building" interviews. However, within a few days CIA interrogators intervened. They claimed Zubaydah had been "only providing ‘throw-away information'" and adopted more aggressive tactics.
When one of the FBI agents complained to the CIA interrogators about the brutal tactics, he was told the techniques were approved "at the highest levels" of government. "Thomas" refused to participate and protested to senior FBI officials about the techniques the CIA used against Zubaydah.
According to Fine's report, "Thomas" did not see Zubaydah being waterboarded, but witnessed other methods being used against him during May 2002 that he said were "borderline torture."
Agent "Thomas's" complaints to the FBI eventually led Pasquale D'Amuro, the FBI's assistant director for counterterrorism, to remove the agents from the interrogations, according to Fine's report. D'Amuro told Fine that he brought the agents' complaints to FBI Director Robert Mueller and "stated that his exact words to Mueller were 'we don't do that' and that someday the FBI would be called to testify and he wanted to be able to say that the FBI did not participate in this type of activity."
According to Fine's report, John Rizzo, the CIA's acting general counsel, refused to allow investigators from the Office of Inspector General to question Zubaydah in January 2007. Fine said Rizzo's refusal to allow investigators access to Zubaydah was "unwarranted" and "hampered" the probe.
Fine said Rizzo told the inspector general's office that he refused the request because Zubaydah "could make false allegations against CIA employees."
At the time of Fine's request, the International Committee of the Red Cross (ICRC) had obtained access to Zubaydah and 13 other "high-value" detainees and concluded that their treatment "constituted torture." The ICRC sent its report to Rizzo on February 14, 2007.
However, neither the ICRC's report nor Fine's include specific dates about the "enhanced" techniques used against Zubaydah.
According to Fine's report, "Gibson" said he "remained at the CIA facility until some time in early June 2002, several weeks after 'Thomas' left, and that he continued to work with the CIA and participate in interviewing Zubaydah."
When he returned to the FBI headquarters in June 2002 to meet with officials about Zubaydah "Gibson" said he had no "moral objection" to the techniques being used against Zubaydah because they were "comparable" to the "harsh interrogation" techniques he "himself had undergone ... as part of the U.S. Army Survival, Evasion, Resistance, and Escape (SERE) training."
According to documents Levin's committee obtained from the Department of Justice, Daniel Levin, the former head of OLC, indicated that in 2002 "in the context of the Zubaydah interrogation, he attended a meeting at the National Security Council (NSC) at which CIA techniques were discussed."
Daniel "Levin stated that a DOJ Office of Legal Counsel (OLC) attorney gave advice at the meeting about the legality of CIA interrogation techniques. Levin stated that in connection with this meeting, or immediately after it, FBI Director Mueller decided that FBI agents would not participate in interrogations involving techniques the FBI did not normally use in the United States, even though OLC had determined such techniques were legal," according to questions directed to Rice by Senator Levin.
Daniel Levin was forced to resign in 2004 when Alberto Gonzales became attorney general because he objected to waterboarding.
In her responses to Senator Levin's questions regarding Zubaydah's interrogation, Rice said she had "general recollection that FBI had decided not to participate in the CIA interrogations but I do not recall any specific discussions about withdrawing FBI personnel from the Abu Zubaydah interrogation."