Fordham Law


'Zero Dark Thirty,' the CIA and 'enhanced interrogation techniques'

Karen Greenberg in MSNBC News, January 11, 2013

Media Source

By Robert Windrem, Senior Investigative Producer, NBC News

Whatever its artistic merits, the movie “Zero Dark Thirty” is giving Americans a shocking first-hand look at the “enhanced interrogation techniques” used by the CIA on suspected terrorists and rekindling that most polarizing of national security debates: Did waterboarding and other practices amount to torture and were they even effective?

The movie, which opens in wide release on Friday, is unlikely to resolve those issues, particularly given that critics – including acting CIA Director Michael Morell -- say it misrepresents the role the interrogations played in the eventual tracking and killing of al-Qaida leader Osama bin Laden.

But more than a decade after the harsh techniques were authorized, the movie does offer an opportunity to examine the methodical, legalistic, bureaucratic process that led to the use of waterboarding and other physically and mentally stressful interrogation techniques.

Their development illustrates what former CIA Director George Tenet wrote in his memoir, “At the Center of the Storm”: “Despite what Hollywood would have you believe, in situations like this, you don’t call in the tough guys; you call in the lawyers.”

Interviews over three years with former high-ranking U.S. officials, and a review of documents and memoirs of participants by NBC News, provide a detailed picture of the how the intelligence community and Justice Department crafted the “enhanced interrogation techniques” – known as EITs in CIA jargon -- that were used on some of America’s most wanted terrorists.

The approval process for the techniques – many of which are prohibited for use on battlefield adversaries by the Geneva Conventions – created not just a list of those that were permitted, but included detailed instructions covering everything from the dimensions of the waterboard to how long detainees were to be strapped down and their airflow restricted.  Specific legal procedures also were prescribed before each technique could be administered.

The process of developing a “menu” of interrogation techniques that could be used on suspected terrorists began in the spring of 2002, and moved quickly -- even feverishly – at first.

The CIA, which lacked interrogation expertise, needed to develop a plan for questioning alleged al-Qaida terrorist training camp operator Abu Zubaydah, the first major jihadi captured after the 9-11 attacks.

Wounded in a shootout in Pakistan at the end of March 2002, Zubaydah was initially interrogated by FBI agents. But CIA agents soon joined the questioning and the bureau withdrew its agents by June out of a concern that the agency’s interrogators had crossed the line. (That suggests that Zubaydah’s harsh treatment began even before enhanced interrogation techniques were approved in August 2012, since the 9-11 Commission’s final report included references to at least five CIA interrogations between late May and early July.) 

“Interrogation wasn’t a big deal till we got a big deal guy,” said one former intelligence official who spoke with NBC News on condition of anonymity.  “We had reporting from prior to 9-11 as well as afterward that Abu Zubaydah might well know about future operations.  So … we get him in our clutches…we figure we might need to do something to find out what he knows.”

To come up with a “menu” of harsh interrogation tactics, the agency turned to the Pentagon’s SERE (Survival, Evasion, Resistance, Escape) program, which trains U.S. servicemen to resist harsh treatment that might be inflicted on them by an enemy that doesn’t abide by the Geneva Conventions. In other words, torture.

Agency officials made first contact with the SERE trainers in April 2002, not long after Zubaydah was captured, according to staff investigators with the Senate Armed Services Committee. Richard Shiffrin, the Defense Department’s deputy general counsel for Intelligence, later confirmed in congressional testimony that the purpose was to “reverse engineer” the techniques that U.S. servicemen were being subjected to for use on al-Qaida detainees.

Some techniques were demonstrated to CIA officials in an initial two-day tutorial on July 1-2, 2002, with SERE instructors playing the roles of both prisoner and the interrogator. A CIA lawyer decided following the tutorial that "significantly harsh techniques” would have to be approved by the Justice Department.

In late July, Dr. John “Bruce” Jessen, then a senior psychologist at the Defense Department agency that administered SERE training, was sent to the CIA “for several days” to discuss the techniques, according to congressional investigators. 

Immediately after the assignment ended, Jessen resigned from the Air Force and, along with another recently retired colleague, Dr. James Mitchell, founded Mitchell Jessen & Associates.

The business -- co-owned by seven individuals, six of whom either worked in the SERE program as employees or contractors – quickly signed a  contract with the CIA, a deal that provided the two men with $1,000-a-day tax-free retainers, according to ABC News.

At roughly the same time, starting July 13, 2002, White House and Justice Department lawyers began drafting the memos approving the techniques. By July 22, John Yoo, then deputy assistant attorney general in the DoJ’s Office of Legal Counsel, had prepared his eventually famous secret memo to Alberto Gonzalez, then counsel to President George W. Bush. In it, Yoo suggested that the Geneva Conventions don't apply to terrorism cases.  Furthermore, he wrote, international law “lacks domestic legal effect, and in any event can be overridden by the president.”

Meanwhile, within days of hiring Mitchell Jessen & Associates, the CIA asked the Defense Department for a rush “list of exploitation and interrogation techniques that had been effective against Americans” in the SERE training.

The Pentagon quickly replied with a memo, “Physical Pressures used in Resistance Training and Against American Prisoners and Detainees,” according to the Senate investigators.

Working with Mitchell Jessen & Associates, the CIA soon developed a menu of 20 enhanced techniques – a list that was ultimately whittled down to 10, mainly because some of proposed techniques were considered too harsh even for terrorists.

“Not everything they proposed was part of the final menu,” said a former senior intelligence official, also speaking on condition of anonymity. “They came up with some stuff people didn’t like and were not approved. … There were legal tests. … Does it shock the conscience?  Does it lead to deep long-lasting injuries?”

The official said he was unaware specifically which techniques had been rejected or why.  Two other Bush administration officials familiar with the approval process for enhanced interrogation techniques, also speaking on condition of anonymity, said they were unaware that any techniques had been rejected prior to approval of the final “menu.”

Approval of the 'menu'
By Aug. 1, 2002, only five days after the Pentagon’s memo had been delivered to the CIA, use of the 10 techniques was approved in a memo signed by Assistant Attorney General Jay S. Bybee, now a federal appeals court judge.  The approved techniques were: “attention grasp,” “walling,” “facial hold,” “facial slap (insult slap),” “cramped confinement,” “wall standing,” “stress positions,” “sleep deprivation,” “insects placed in a confinement box” and “waterboarding.” 

Waterboarding, probably the most controversial of the techniques, was at the time only used by the U.S. Navy SERE school and  prohibited by the Army and Air Force, according to the committee. The Navy has since abandoned waterboarding.

While the techniques were undeniably harsh, senior CIA officials were comforted by the fact that they had been used by the U.S. against its own servicemen, said the former intelligence official.

“A big factor in people’s thinking was that these techniques were used in the training of U.S. Special Operations Forces,” the ex-official said. “If it was something that had been done to U.S. forces … although admittedly very tough … then it couldn’t be considered torture.”

Indeed, Jose Rodriguez, who as director of the CIA’s clandestine service ultimately controlled the EIT program, has written in his memoir, “Hard Measures,” that “waterboarding had been used on 26,829 U.S. Air Force personnel between 1992 and 2001.” Eventually the Air Force stopped using it, he added, because “the airmen subjected to it found it impossible to resist.”

While waterboarding received most attention, “walling” also was controversial because of reports that detainees’ heads would be thrown against the wall.

Rodriguez, however says that was not the case.  In his memoir, he wrote that “special ‘rooms within rooms’” were constructed with flexible plywood walls to prevent injury.

Among the proposed interrogation techniques that didn’t make the cut were “smoke,” “immersion” and “grounding,” according to Senate investigators.

In “smoke,” detainees were to have been blasted for up to five minutes with “an extraordinary amount of thick, sickening smoke” created by a mechanism that used dry tobacco as fuel. “Immersion” called for detainees to be placed in a makeshift cold water bath where “depending on wind and temperature, the subject may be either fully clothed or stripped.” In “grounding,” detainees were to be “forcefully guided…to the ground, (with the interrogator) never letting go.”

While no evidence exists to suggest that “smoke” or “grounding” were ever used against the al-Qaida detainees, the International Red Cross Committee has reported that at least three of the detainees claim they were subjected to “immersion” and their description of the technique precisely matches what was laid out in the original menu the Pentagon provided the CIA.

Rodriguez, who oversaw the use of EIT program, has offered some of the most detailed descriptions of how the techniques were applied.

Writing in “Hard Measures,” he said the 10 approved techniques were broken down into the three categories, “neutral probe,” “corrective” and “coercive.”

Under “neutral probe,” detainees were subjected to sleep deprivation, dietary manipulation and enforced nudity.

If detainees refused to cooperate, Rodriguez said the “corrective” measures were introduced. “Attention grasp,” “facial hold” and finally “insult slap” met the definition of “corrective.”

In the final stage, “coercive,” detainees were placed in a confinement box, at least once with insects (only non-deadly varieties permitted), “wall standing” – where a detainee was directed to stand four or five feet away from a wall with his arms in front of him, fingertips resting on the wall,

Waterboarding was the final technique, only to be used “should all else fail,” Rodriguez wrote. It was to be carried out only with “specific headquarters approval,” and in keeping with a detailed description laid out in the memo drawn up by the Bush Administration DOJ Legal Counsel’s office, one that specified the dimensions of the board (“approximately 4 feet by 7 feet”), the time air flow should be restricted (“20 to 40 seconds”) and the desired effect (“perception of suffocation and incipient panic.”)

It appears from the Bybee memo that the CIA used “experts” in determining whether the techniques had long lasting health effects, something that even administration lawyers understood to be a violation of the Geneva Conventions.   In one reference, Bybee noted that an expert “who has 10 years of SERE training … stated that … insofar as he is aware, none of the individuals who completed the program suffered any adverse mental effects.” In another instance, Bybee wrote, an expert cited by the agency “expressed confidence that the training did not result in any long term psychological impact.” (One Bush administration official theorized that “smoke” had not been approved because tobacco smoke could have had long lasting health effects.)

Also embedded in the documentation of the use of the interrogation techniques is the CIA’s meticulous record-keeping of things like waterboarding.

CIA interrogators used common everyday bottled water in their waterboarding of high value detainees, according to several former and current U.S. officials, both inside the intelligence community and Bush administration.

Rodriguez reported the same thing in a recent Washington Post review of “Zero Dark Thirty.” He wrote, “Instead of a large bucket, small plastic water bottles were used on the three men,” who were subjected to waterboarding.

“The public was only given (quite literally) a cartoon version of what others imagine the technique was like,” he wrote in his memoir. “Irresponsible animations showed detainees practically being dowsed by a fire hose.”

Officials added that each pour from a bottle constituted a single waterboarding procedure.

A one-pint water bottle takes about seven seconds to empty, so four or five bottles would empty in 30 or 40 seconds, the time prescribed by the Justice Department memo approving the process. (Larger two-liter bottles might have been more efficient. Each takes a full 30 seconds to empty.)

Alleged 9-11 mastermind Khalid Sheik Mohammed, reportedly waterboarded 183 times, Zubaydah and Abdelrahim Hussein Abdul Nashiri, a Saudi who allegedly ran al-Qaida operations in the Arabian Peninsula and once planned to assassinate Vice President Al Gore, all told the Red Cross that bottled water was used in their waterboardings.

'It was hopeless'
Zubaydah described to the Red Cross an experience mostly faithful to the technique prescribed in the Bybee memo, albeit less clinical:

“I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited.”

He continued: “The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die.”

Nashiri said he had the same experience, except the water used was cold.

“Injuries to my ankles and wrists also occurred during the waterboarding as I struggled in the panic of not being able to breathe,” he told the Red Cross.

Not everything was approved by the CIA General Counsel’s office.  According to both former intelligence officers and Iraqi Survey Group officials, the Office of the Vice President Cheney wanted to use enhanced interrogation techniques on a recalcitrant Iraqi intelligence officer who they believed had information on Iraqi weapons of mass destruction.

The office angrily refused, according to another former agency official familiar with the request.

Charles Duelfer, the former chief of the Iraq Survey Group, and the man ultimately in charge of interrogations, said at the time that he considered the request reprehensible.

In his 2009 book, “Hide and Seek: The Search for Truth in Iraq,” Duelfer wrote that he heard from “some in Washington at very senior levels (not in the CIA),” who thought the intelligence officer’s interrogation had been “too gentle” and suggested another route, one that they believed has proven effective elsewhere.

“They asked if enhanced measures, such as waterboarding, should be used,” Duelfer writes. “The executive authorities addressing those measures made clear that such techniques could legally be applied only to terrorism cases, and our debriefings were not as yet terrorism-related. The debriefings were just debriefings, even for this creature.”

Duelfer did not disclose who in Washington had proposed the use of waterboarding. But in a recent interview, a former CIA officer, speaking on condition of anonymity, said that agency’s acting general counsel John Rizzo refused to permit the use of waterboarding because those same memos that authorized it for al-Qaida detainees said nothing about it being used in Iraq.

It is just the kind of detail that is missing from the movie. But the back-story of the bureaucratic process that changed the way the American government viewed the parameters of torture is in some ways even more dramatic than the hunt for bin Laden.

“The torture displayed in ‘Zero Dark Thirty’ was the result of systematic legal and policy reasoning at the highest levels of government,” said Karen J. Greenberg, director of the Center on National Security at Fordham Law School and author of “The Least Worst Place: Guantanamo’s First 100 Days.” “Which techniques, how they would be applied, and with what specific legal authorities were all part of the detailed, cold, bureaucratic trail that methodically removed torture from the realm of illegal and forbidden and placed it in the realm of national policy.”