In this post, we proceed with Lawfare's ongoing, side-by-side comparison of the SSCI Study's key findings, and responses to them by both the SSCI Minority as well as the CIA.
By way of reminder, the SSCI's Study made twenty findings and conclusions about the CIA's detention and interrogation practices after 9/11---twelve of which the blog has summarized so far, along with any corresponding Minority and CIA remarks.
A breakdown of findings 13-16 can be found below, the lone goal being to isolate areas of dispute as between the SSCI, its Minority, and the CIA.
Committee Conclusion #13: Two contract psychologists devised the CIA's enhanced interrogation techniques and played a central role in the operation, assessments, and management of the CIA's Detention and Interrogation Program. By 2005, the CIA had overwhelmingly outsourced operations related to the program.
The Study criticizes the CIA’s use of two contract psychologists in the development and execution of the interrogation program. For starters, “[n]either psychologist had any experience as an interrogator, nor did either have specialized knowledge of al-Qa'ida, a background in counterterrorism, or any relevant cultural or linguistic expertise.”
The contractors, who would ultimately receive $81 million for their services between the start of the program and its termination in 2009, played an extensive role throughout this period. Among their various duties, the Study finds that the psychologists “developed the list of enhanced interrogation techniques that was approved for use,” “personally conducted interrogations of some of the CIA's most significant detainees using these techniques,” “evaluated whether detainees' psychological state allowed for the continued use of the CIA's enhanced interrogation techniques,” and “assess[ed] the effectiveness of the interrogation program.”
By 2008, contractors would make up 85% of the CIA’s Rendition, Detention, and Interrogation Group.
Minority Views as to Conclusion #13
The Minority does not specifically address Conclusion #13 and does not discuss the role of contractors in the development or execution of the CIA’s interrogation operations.
The CIA recognizes the Study’s concern with the “multiple roles performed by contracted psychologists.” In fact, their involvement in performing interrogations, assessing detainees’ psychological fitness, and assessing the effectiveness of the interrogation program prompted internal CIA deliberations and that led the Agency to rein in the contractors in 2003. The Agency’s management issued internal guidance “on the scope of the contractor psychologists' involvement in individual interrogations.”
The Agency also acknowledges the conflict of interest created by allowing the contractors “to evaluate the effectiveness of the techniques they had devised.” The CIA has since ensured that future contracts do not allow contractors to “grad[e] their own work.”
On the other hand, the CIA strongly contests the Study’s claims that the contract psychologists lacked adequate experience to develop the interrogation program. Both psychologists has spent years with the U.S. Air Force’s Survival Resistance Evasion and Escape (SERE) training program and one of them “had conducted academic research and written a number of research papers on such topics as resistance training, captivity familiarization, and learned helplessness.” These two psychologists were, at the time, the best means available to the CIA in developing “non-standard means of interrogation.” The Agency’s feels so strongly about this that it says it “would have been derelict had we not sought them out when it became clear that CIA would be heading into the uncharted territory of the program.”
Finally, the Agency defends its decision to use contractors so extensively for this program, explaining that by relying on outside assistance in interrogating detainees and managing detention facilities, the contractors ensured that this would not become a “long-term CIA core mission.” Nor is it surprising that so many CIA employees were “lured away” to the company founded by the contract psychologists. In the wake of the September 11, 2001, attacks, the government was “heavily dependent on the services of a variety of contractors, which created a strong demand for cleared personnel and, for too many of our employees, an irresistible financial lure.”
Committee Conclusion #14: CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorized by CIA Headquarters.
According to the Study, the CIA interrogators used techniques on detainees that were not approved by the Department of Justice until mid-2004—including nudity, dietary manipulation, abdominal slaps, and cold water dousing. They also subjected seventeen detainees to enhanced interrogation techniques without authorization from CIA Headquarters, while other detainees were subjected to techniques used in ways that diverged from specific authorization or by interrogators that were not authorized to use those techniques. Corrective action was “rarely taken” against those responsible for such abuses.
Minority Views as to Conclusion #14
The Minority does not specifically address Conclusion #14, but does note in a few footnotes that dietary manipulation, nudity, and sleep deprivation were ultimately authorized by the Department of Justice. The response also notes in multiple footnotes that the CIA Inspector General conducted almost 60 investigations related to the detention and interrogation program, which produced a felony conviction, termination of a contractor, and six accountability reviews.
The Agency rejects the Study’s implication that interrogators frequently acted beyond the authorization of CIA Headquarters. While some interrogators admittedly used “unauthorized techniques” during the early days of the program, the DCI Guidelines nearly eliminated “significant improvisation in interrogations” and those “isolated incidents” that did occur were reported to and investigated by the Inspector General. Further, the Study erroneously included use of cold water dousing and sleep deprivation in the count for unauthorized techniques, when such techniques “were categorized as standard” at the time and did not need CIA Headquarters authorization for each use.
The CIA also responds to the claim that those who violated interrogation policies were rarely held accountable. While acknowledging that there were “significant shortcomings in CIA's handling of accountability for problems in the conduct and management of CIA's RDI activities,” the CIA argues that the Study gives short shrift to the accountability measures that the CIA did take. For example, six accountability proceedings assessed the performance of thirty individuals and meted out sanctions to sixteen.
The CIA also fully rejects the Study’s claim that there were “multiple accountable offenses that CIA ignored.” Although the Agency acknowledges that “the narrow scope of CIA's accountability efforts yielded outcomes that are, in retrospect, unsatisfying in view of the serious nature of the events,” it also stresses that it would not be “practical or productive to revisit any RDI-related case so long after the events unfolded.” Instead, the CIA implement some of the lessons learned moving forward, including holding managers responsible for the actions of their subordinates.
Committee Conclusion #15: The CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained, and held individuals who did not meet the legal standard for detention. The CIA's claims about the number of detainees held and subjected to its enhanced Interrogation techniques were inaccurate.
The Study finds that the CIA never conducted a comprehensive audit of its detention and interrogation programs and so misreported the number of people detained by the CIA and the number of those subjected to enhanced interrogation techniques. Minimal records from various CIA black sites makes it impossible to measure the full extent of these operations.
Of the 119 individuals that the Committee ultimately was able to determine were detained by the CIA, at least 26 were wrongly held, including an “intellectually challenged” individual who was held “solely as leverage to get a family member to provide information.” Even after the CIA determined that it had improperly detained an individual, it often took months to release that person.
Minority Views as to Conclusion #15
The Minority does not does not address Conclusion #15.
The CIA accepts that it should have kept better records about the number of people it detained and further acknowledges that it detained, and then waited to long to release, at least six individuals improperly under the guidelines. The Agency believes that the Committee “applies too much hindsight,” however, in its determination that the CIA wrongly held as many as 26 people. While the CIA eventually released a number of detainees due to an evolving understanding of the detention standards under the September 2001 Memorandum of Notification, the Study should not assume that all of those detainees were wrongfully held; rather, many of those detention decisions “were reasonable under the MoN standard at the time they were made.” This is particularly the case in 2002 and 2003, when the “national priority was preventing attacks.” In fact, that the CIA continually re-evaluated whether it was authorized to detain certain individuals shows that the Agency has implemented “a functioning ‘safety valve.’”
Committee Conclusion #16: The CIA failed to adequately evaluate the effectiveness of its enhanced interrogation techniques.
The Study casts great doubt on the CIA’s claimed efforts at figuring out whether enhanced interrogation techniques were actually “effective,” arguing that the Agency never “conducted a credible, comprehensive analysis … despite a recommendation by the CIA inspector general and similar requests” by the White House and congressional overseers.
As for examinations that did occur, one was lead by CIA officers unconnected to the Program---and managed somehow both to determine that it would not be possible to assess effectiveness “without violating ‘Federal Policy for the Protection of Human Subjects’ regarding human experimentation,” and to declare the Program generally “a success.” Another review conducted by two other CIA officials was along the same lines, in that one of the pair---a person who admitted to lacking needed expertise to review interrogation practices---deemed the totality of the detainee effort a “great success” without specifically assessing the nexus between threat intelligence and the use of enhanced interrogation. The other simply said there was “no objective way to answer the question of efficacy” with respect to enhanced interrogation.
There was, the Study goes on, no independent effort to validate the CIA’s “effectiveness” claims. The Agency also never sought to determine whether intelligence allegedly wrested from individuals subjected to the techniques “as unique and ‘otherwise available,’ as claimed by the CIA, and not previously obtained from other sources.”
Minority Views as to Conclusion #16
The Minority does not specifically mention the Study’s sixteenth finding.
The Agency largely agrees with the Study here.
The CIA Director’s cover letter proclaims as much. “In particular, we agree that the Agency … [f]ailed to perform a comprehensive and independent analysis on the effectiveness of enhanced interrogation techniques.” Elsewhere in the CIA’s response, an Agency Review team mostly echoes that appraisal, elaborating on it only slightly:
[W]e agree fully with the Study’s critique of the Agency’s failure to perform a comprehensive analysis of the effectiveness of those techniques. As we discuss in the next section, CIA did, for the most part, accurately assess the value of what it derived in its interrogations; but that does not equate to a robust assessment of the efficacy of how it derived that information relative to other approaches. The internal and external studies commissioned in response to an OIG recommendation offered some useful insights, but they fell well short of the kind of systematic, comprehensive, independent assessment of program effectiveness that the Agency should be looking for while assessing its covert actions in the future.
The Agency adds more heft to this view later on in its submission, writing that it agrees with the Committee’s conclusion regarding evaluation “in full … CIA needs to develop the structure, expertise, and methodologies required to more objectively and systematically evaluate the effectiveness of our covert actions.”
Still, and despite the absence of any cross-cutting review, the Agency writes that “[o]fficers concluded that various enhanced techniques were effective based on their own ‘before and after’ observations. A number of officers, having witnessed detainees’ initial demeanor, believed that they would not have succumbed to less coercive approaches, at least not in time for their information to be operationally useful.” With that said, the CIA’s submission also argues that---in the view of the Agency as a whole---it is “impossible in hindsight” to know whether the intelligence at issue could have been obtained from detainees through less coercive means.
- International Law,
- International Law: LOAC: Detention,
- Interrogation: Interrogation Abuses: Civil Liability,
- Interrogation: Abuses,
- Detention & Guantanamo,
- Detention: Law of: Legislative Development,
- NIAC: Conflict with IHRL,
- International Transfers/Deportations,
- Interrogation: CIA Program,
- Interrogation: Legislative Development,
- Non-International Armed Conflict,
- Relationship between LOAC and IHRL,
- Detention: Law of