NIAC: Conflict with IHRL

Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority and the CIA: Part 2

By Cody M. Poplin, Benjamin Bissell
Tuesday, December 9, 2014, 9:46 PM

Below, you will find the second installment in our ongoing effort to identify, in summary form, key areas of dispute as between the SSCI, the SSCI minority, and the CIA with regard the CIA's detention and interrogation program. As you surely know by now, all three today released long-anticipated reports regarding the CIA's post-9/11 detention and interrogation activities. 

A little reminder about structure: the two Committee reports both follow the same basic setup, in that the SSCI's Study (among other things) made twenty separate findings and conclusions, and the minority responded to each. The CIA’s submission, by contrast, was written in reaction to an earlier draft of the Study, so it’s therefore organized differently. As noted in our first installment, our overview follows the majority report’s organization---and seeks to set forth, as simply as possible, places where the three parties agree an disagree with respect to the Committee's twenty factual findings.

Our first post in the series detailed the first four of those findings; below, you'll find a summary of findings five through eight. Stay tuned for more.

Committee Conclusion #5: The CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the CIA's Detention and Interrogation Program.

According to the Study, the Office of Legal Counsel (OLC) relied on the CIA to provide information on the following topics: (1) the conditions of the detainees’ confinement; (2) the application of the CIA’s enhanced interrogation techniques; (3) the physical effects of the EITs on detainees; and (4) the efficacy of the EITs in producing actionable intelligence. But there was a caveat. If the facts were to change, the OLC warned Langley, its legal conclusions might no longer apply. Yet when the CIA determined that the information it had provided earlier was no longer correct, it “rarely” told the DOJ, according to the Committee.

Additionally, the CIA’s attorneys told the DOJ that a “necessity defense” could be used to justify EITs; in other words, to the extent they might trigger criminal prosecution, the techniques nevertheless might pass muster if their use was also arguably necessary to save lives. Taking a cue from CIA counsel, OLC included the “necessity defense” as a justification for the techniques’ legality in the Office’s now-infamous August 2002 memorandum. That same day, the OLC approved the use of 10 specific techniques against Abu Zubaydah. However, the CIA misled the OLC about Zubaydah’s standing in Al Qaeda, about the CIA’s certainty as to whether he was deliberately withholding information, and the way in which the techniques would be applied. The Study also argues that in March 2005, the CIA submitted examples that inaccurately displayed---overstated---the techniques’ effectiveness in producing valuable intelligence; these examples would later be used by the OLC in 2005 and 2007 to further substantiate the legality of the EITs.

Minority Views as to Conclusion #5

In general, the minority found many of the claims of the Study to be inaccurate. They note that the cursory discussion in the CIA memorandum regarding “necessity defense” as a “novel” way of avoiding prosecution for US officials who tortured did not support the use of such defense but rather the opposite. This claim, they allege, is a remnant of an earlier Conclusion 2 that was dropped from the final version of the Study. Unfortunately, this point remains and was cherry-picked by the Study’s authors and used to falsely infer that “necessity defense” was important to the CIA’s representations about the program. Additionally, the Study initially advanced inaccurate claims about the CIA’s opinion of Abu Zubaydah. While the CIA should have kept the OLC more up-to-date, they never provided information to the body that they knew to be inaccurate. The minority also found that the CIA’s representations of the EITs’ effectiveness were accurate. The minority’s response to Conclusion 5 also includes several other assertions that appear to have been incorporated into the Study’s current version. Among other assertions, the minority here argues that the Study inaccurately criticized the CIA for advancing misinformation about high-value al Qaeda figures. Also, the minority says the Study incorrectly faulted the CIA for applying EITs to other detainees without advance OLC approval.

CIA Comments

Echoing the minority, the CIA says that while the draft memo in 2001 did list “necessity defense” as a way of avoiding potential criminal torture charges from EIT activities, the CIA denies that the agency relied on the memo in implementing the program. To be sure, the CIA acknowledges that seeking to invoke the necessity defense, in advance, as a means of avoiding torture prosecution would be “novel.” However, the CIA asserts that its use of the word “novel” does not convey any support for actually taking that position. Rather, the memo means to say that utilizing a “necessity defense” as a way to clear officials charged with torture is an argument no US court has ever considered or accepted. Additionally, the memo’s mention of the Israeli example---it had cited a ruling of Israeli courts---signifies its belief that “necessity defense” could not be used in this fashion to provide authority for the program. The gist of the Agency’s claim is therefore that the Study overstates the draft memo’s significance; in the end, it was merely an attempt by the CIA’s legal team to research the body of laws that could be applied to the program. Finally, the CIA reiterates that it "at all times sought to obtain legal guidance from DOJ based on the best information then available." Again with the minority, it says that it never provided information to the DOJ that it believed was/knew to be inaccurate at the time. This included information about Abu Zubaydah's role and status within Al Qaeda.

Committee Conclusion #6: The CIA has actively avoided or impeded congressional oversight of the program.

The CIA did not brief the SSCI on the enhanced interrogation techniques until after the techniques had been approved and used. Until September 6, 2006, the CIA restricted information about the program to the Chairman and Vice Chairman of the committee, and refused to provide documents on the program until around that time.  This came somewhat late in the day: By September 2006, 117 of the 119 detainees had already left CIA custody. Additionally, the CIA provided briefings that contained numerous inaccuracies, including inaccurate depictions of techniques and the quality and type of information obtained.

Minority Views as to Conclusion #6

According to the Minority, the overall pattern of engagement with Congress shows that the CIA attempted to keep Congress actively informed of its activities as related to the enhanced interrogation program. Between the years of 2002 to 2008, the CIA gave more than 35 briefings to SSCI members and staff, more than 30 briefings to HSPCI members and staff, and provided more than 20 congressional notifications. The CIA began providing information to the Committee shortly after the signing of the Memorandum of Notification on September 17, 2001. The Committee’s own review cites CIA hearing testimony from November 7, 2001, which discussed uncertainty in the boundaries of the techniques. Moreover, writes the Minority, the use of DOJ-approved EIT’s began during a congressional recess. The CIA briefed leaders of HPSCI on September 4, 2002, and the SSCI received a briefing on September 27, 2002. Vice Chairman John D. Rockefeller was provided access to documents he requested. The Minority agrees that the full Committee should have been briefed much earlier on the EITs, but notes that the CIA’s limitation of access to sensitive covert action information is a long-standing practice codified in Section 503 of the National Security Act of 1947. The Committee report also notes that the CIA briefed a number of senators who were not on the SSCI, which is inconsistent with a narrative that the CIA sought to avoid congressional oversight.

CIA Comments

CIA rejoins that its leaders made an effort to keep oversight committee leaders briefed on the EIT program consistent with the parameters set by the White House on information access. The CIA acknowledges that it did not share all available information with all members of the Committees, but the CIA does not determine the level of access provided to Congress. The CIA briefed SSCI members or staff on rendition, detention, or interrogation more than 35 times from 2002-2008 and provided 30 briefings to HPSCI members or staff during the same period. Both HPSCI and SSCI leaders were briefed on the program in September 2002, including background on the authorities to use the techniques, coordination between DOJ and the White House, a description of the techniques, and some information on the intelligence acquired. The CIA also argues that it briefed oversight committees on the deviation from approved techniques and the death of Gul Rahman on February 4 and 5, 2003, reviewing what happened, what intelligence was collected, a discussion the the techniques employed, and that the CIA intended to destroy tapes of the interrogation sessions. The CIA’s Inspector General initiated a review of the EIT program in January 2003, which was subsequently concluded in May 2004. At its conclusion, members of oversight committees were briefed on July 13 and 15, and notes from the briefing indicate that it involved discussion of the practical, legal, and moral issues involved.

Leadership of both oversight committees were briefed in March 2005. The Agency contends that while Director Michael Hayden’s April 2007 testimony contained some inaccuracies, there is no evidence that there was any intent on the part of the Agency or the Director to misrepresent the facts. Where his testimony erred, he was either not informed of circumstances prior to his joining the Agency in 2005, or failed to clarify that where unauthorized techniques were performed, the CIA had moved to sanction the employees who had used them.

The CIA contends that it is inherently unknowable whether the Agency could have acquired the same information without EITs, but that Hayden was not misleading Congress by expressing his opinion as Director. The CIA was not authorized by the White House to share the location of “black sites.” Congress was aware of interrogation videotapes in January 2003 and was made aware of the CIA’s intent to destroy them.

Committee Conclusion #7: The CIA impeded effective White House oversight and decision-making.

The study claims that the CIA provided inaccurate and incomplete information to the White House regarding its detention and interrogation program. Furthermore, its doing so prevented executive oversight and decision-making on the issue. For instance, the study asserts, no CIA officer briefed the President on specific CIA EITs before 2006. By that year, 38 of the 39 detainees who are known to have been subjected to the CIA’s EITs had already been subjected to them. In addition, the CIA did not inform the President or Vice President of the countries the CIA detention facilities were located in, apart from one. The Study goes on to say that the White House ordered the CIA not to brief the Secretaries of State or Defense until September 2003, in part over fears that Colin Powell would “blow his stack” if he found out about the program.

The CIA also provided incomplete and inaccurate information regarding the program’s operation and effectiveness. In briefings with the White House and the National Security Council, the CIA advocated for the program and said that its termination would result in loss of life, “possibly extensive.”

Minority Views as to Conclusion #7

In the Minority’s opinion, it is important to note that the CIA’s detention and interrogation program was a covert one, and that the President approves all covert actions. It is unfounded, in the Minority's view, to imply---as the Study does---that the CIA was conducting a “rogue intelligence operation” aimed at obstructing the White House's access to information. While the CIA documents regarding when the President was briefed are incomplete, President Bush wrote in his autobiography that he was briefed in 2002, before the techniques were used. Finally, the Minority notes the claim in the Study that “[t]he information provided connecting the CIA's detention and interrogation program directly" to stopping a group of plots "was, to a great extent, inaccurate.” The Minority argues to the contrary.

CIA Comments

The CIA denies that it avoided executive oversight and provided inaccurate information. Indeed, the Agency says it conducted briefings with Executive Branch personnel starting in November 2001. The CIA advances another, related argument also made by the Minority: though it acknowledges that Agency records are incomplete, the CIA notes that Bush said himself that he was briefed on the program in 2002 and specifically approved the use of enhanced interrogation techniques for Abu Zubaydah. The decision to delay briefing the Secretaries of Defense and State on the program was a White House decision, asserts the CIA, and not one Langley had the “unilateral authority” to make.

Committee Conclusion #8: The CIA’s operation and management of the program complicated, and in some cases impeded, the national security missions of other Executive Branch agencies.

Over the course of the enhanced interrogation program, writes the Committee, the CIA withheld or restricted information relevant to the missions of the FBI, State Department, and ODNI. Since the programs did not meet traditional U.S. standards of interrogation and detention, the FBI and Department of Defense limited their interactions with them. At the same time, the CIA denied FBI Director Robert Mueller’s request for FBI access to detainees, and restricted information obtained from detainees, leading to concerns that the limits on information-sharing were undermining overall U.S. counterterrorism efforts. The Study also says the CIA refused to provide two Secretaries of State the locations of CIA detention facilities, even as those facilities stood to influence relations with countries in which they were located. Ambassadors likewise were told not to discuss the facilities with State Department officials. The CIA also told local government officials not to inform ambassadors of CIA detention facilities in their countries. Inaccurate information provided the the ODNI by the CIA prevented the ODNI from providing accurate information to the public.

Minority Views as to Conclusion #8

The CIA was not responsible nor did it have control over sharing of information with other executive branch agencies: The National Security Council, argues the Minority, established the parameters for when and how the CIA could discuss the program with other agencies. CIA officers were in close contact with their State Department counterparts in countries with detention facilities. Owing to the secret nature of the program, one ambassador was directed not to discuss the establishment of a facility with his immediate superior, but to instead send feedback through CIA channels, to the National Security Council, whereby the Deputy Secretary of State, with the knowledge of the Secretary, would address the ambassador’s concerns. For its part, the FBI was able to submit requirements to the CIA and received reports on interrogations. In the fall 2003, a memorandum of understanding was finalized that detailed how FBI agents would be provided access to detainees.

CIA Comments

Intelligence gathered from the detention and interrogation program, argues the Agency, facilitated and enhanced the work of other agencies in executing their national security missions. The CIA provided other agencies, including the FBI, with a wealth of information from detainee interrogations that was instrumental in structuring the US government response after 9/11. To fill gaps in intelligence regarding the structure, membership, capabilities and strategies of Al Qaeda, the CIA fulfilled hundreds of requests from the FBI, Department of Homeland Security, National Counterterrorism Center, Department of Defense, Department of State, and the Department of the Treasury. FBI cables indicate that it used information gathered from detainees in its investigations. For example, in a paper assessing the activities of US-based Al Qaeda sleeper operative Salih al-Marri, more than three quarters of the intelligence reports the FBI cited were sourced to detainee Khalid Sheikh Mohammed.

The FBI’s lack of involvement with the enhanced interrogation program was self-prescribed, based on a decision by its leadership. The Agency relatedly disputes the Committee’s claim that the FBI received “the most significant intelligence” information from Abu Zubaydah using only rapport building---that is, standard and unenhanced---techniques. In truth, FBI officers worked in coordination with CIA officers, as part of an effort that included sleep deprivation.

The allegation that the CIA only shared “actionable” intelligence is wrong, too. According to the Agency, all intelligence collected from KSM, for example, was shared with the FBI, whether it was actionable or not.  The Secretary of State, Deputy Secretary of State, and Ambassadors in detention site host countries were likewise aware of the sites at the times they were operational. CIA station chiefs informed their ambassadors of potential media, legal, or policy issues as they developed and provided a secure means for communicating these measures to Washington.