July 12, 2011

II. Torture of Detainees in US Counterterrorism Operations

The CIA Detention Program

On September 15, 2001, CIA Director George Tenet presented the National Security Council (NSC) with options for covert CIA operations involving the abduction of terrorism suspects abroad.[33] Two days later, on September 17, President Bush signed a directive authorizing the CIA to kill, capture, detain, and interrogate suspected al Qaeda-linked terrorists.[34]

On September 26, Tenet reportedly briefed Bush and the NSC on CIA renditions operations in which suspects were transferred into the custody of third countries such as Jordan and Egypt for detention and interrogation.[35]

Meanwhile, CIA and US military personnel in Afghanistan began to interrogate detainees apprehended there, or in Pakistan and handed over to US forces in Afghanistan. At the Qali Jangi fort in northern Afghanistan, CIA and military Special Forces personnel had begun questioning individuals.[36] Detainees also began arriving at a newly created US base near Kandahar in southern Afghanistan in November 2001 and at the Bagram air base outside Kabul in December 2001. Within weeks, media reports began to surface alleging mistreatment of detainees at Qali Jangi and at the Kandahar base.[37]

Allegations of abuse against detainees by US personnel in Afghanistan continued in 2002. According to US Army documents released in 2004 and 2005, four Special Forces personnel “murdered” an Afghan in custody in August 2002.[38] In September 2002, an unnamed detainee died while in CIA custody near Kabul, reportedly of hypothermia.[39] In December 2002, two detainees at Bagram air base were beaten to death by US military guards detailed to work with military intelligence personnel on interrogations.[40] A December 2008 investigation by the Senate Armed Services Committee showed that many of the abusive techniques being considered for formal approval at Guantanamo in October 2002 were in fact already in use in Afghanistan by that time.[41] A 2004 Department of Defense report by former Secretary of Defense James R. Schlesinger acknowledged that “aggressive” interrogations were underway in Afghanistan from late 2001 through 2002, beyond what was approved in the relevant US army field manual on interrogation.[42]

Secret Detention Sites

Pursuant to President Bush’s September 17, 2001, order, the CIA began to set up secret detention facilities. Although much remains to be learned about the operation of these “black sites,” whose locations have never been acknowledged by the United States, there is strong evidence that the US established secret detention sites for interrogation or transfer in Afghanistan, Guantanamo, Iraq, Lithuania, Morocco, Pakistan, Poland, Romania, and Thailand.[43] The CIA's prisons, which are thought to have held some 100 detainees since 2002,[44] were the site of some of the most egregious human rights violations, many of which are described below.

The International Committee of the Red Cross (ICRC), which interviewed 14 of the former CIA black site detainees after their transfer to Guantanamo, gave the following description of their detention regime:

Throughout the entire period during which they were held in the CIA detention program—which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years—the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real—let alone regular—contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers.
None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons. In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment.
In addition, the detainees were denied access to an independent third party. In order to ensure accountability, there is a need for a procedure of notification to families, and of notification and access to detained persons, under defined modalities, for a third party, such as the ICRC. That this was not practiced, to the knowledge of the ICRC, neither for the fourteen nor for any other detainee who passed through the CIA detention program, is a matter of serious concern. [45]

After news of the sites became public, Bush in September 2006 officially acknowledged the existence of the secret CIA sites, saying:

[A] small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency.... Many specifics of this program, including where these detainees have been held and the details of their confinement, cannot be divulged.[46]

He ordered what he said were the remaining 14 detainees in CIA custody transferred to Guantanamo Bay.[47]

On January 22, 2009, his second full day in office, President Obama issued an executive order to close the CIA’s secret detention program.[48]

The Case of Abu Zubaydah: the First Detainee in the CIA Interrogation Program

In late March 2002, the CIA in Faisalabad, Pakistan, apprehended Zayn al Abidin Muhammad Husayn, more commonly known as Abu Zubaydah. Zubaydah was shot during his arrest and taken to a hospital in Lahore, Pakistan, before being transferred to a secret CIA facility, apparently in Bangkok, Thailand.[49]

Zubaydah was originally believed to be a top al Qaeda operative, and his interrogation became a test case for the CIA’s evolving new role in detention and interrogation under Bush’s September 17, 2001 directive.

A 2009 “Declassified Narrative Describing the Department of Justice Office of Legal Counsel's Opinions on the CIA's Detention and Interrogation Program,” released by the Senate Select Committee on Intelligence in 2009 describes in detail the NSC approval process of the CIA interrogation policy regarding Abu Zubaydah:

CIA records indicate that members of the National Security Council (NSC) and other senior Administration officials were briefed on the CIA’s detention and interrogation program throughout the course of the program. In April 2002, attorneys from the CIA’s Office of General Counsel began discussions with the Legal Adviser to the National Security Council and OLC concerning the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation. CIA records indicate that the Legal Adviser to the National Security Council [John Bellinger] briefed the National Security Adviser [Condoleezza Rice], Deputy National Security Adviser [Stephen Hadley], and Counsel to the President [Alberto Gonzales], as well as the Attorney General [John Ashcroft] and the head of the Criminal Division of the Department of Justice [Michael Chertoff].
According to CIA records, because the CIA believed that Abu Zubaydah was withholding imminent threat information during the initial interrogation sessions, attorneys from the CIA's Office of General Counsel [headed by John Rizzo] met with the Attorney General [John Ashcroft], the National Security Adviser [Condoleezza Rice], the Deputy National Security Adviser [Stephen Hadley], the Legal Adviser to the National Security Council [John Bellinger], and the Counsel to the President [Alberto Gonzales], in mid-May 2002 to discuss the possible use of alternative interrogation methods that differed from the traditional methods used by the US military and intelligence community. At this meeting, the CIA proposed particular alternative interrogation methods, including waterboarding.
The CIA's Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques. To enable OLC to review the legality of the techniques, the CIA provided OLC with written and oral descriptions of the proposed techniques. The CIA also provided OLC with information about any medical and psychological effects of DoD's [Department of Defense] Survival, Evasion, Resistance and Escape (SERE) School, which is a military training program during which military personnel receive counter‑interrogation training.[50]

The SERE techniques had been used by the Defense Department’s Joint Personnel Recovery Agency (JPRA) to train US Special Forces to withstand interrogation methods used by enemies who did not abide by the Geneva Conventions.[51] These SERE techniques were described in a 2008 Senate Armed Services Committee report (“Levin Report” or “SASC Report”) as including:

[S]tripping 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…, it included waterboarding.[52]

The CIA and NSC, in essence, were advising that CIA interrogators use techniques modeled on interrogations conducted by past enemies of the US that did not abide by the Geneva Conventions.

In his memoirs, Bush describes approving the waterboarding of Abu Zubaydah:

At my direction, Department of Justice and CIA lawyers conducted a careful legal review. They concluded that the enhanced interrogation program complied with the Constitution and all applicable laws, including those that ban torture.
I took a look at the list of techniques. There were two that I felt went too far, even if they were legal. I directed the CIA not to use them. Another technique was waterboarding, a process of simulated drowning. No doubt the procedure was tough, but medical experts assured the CIA that it did no lasting harm.
…I would have preferred that we get the information another way. But the choice between security and values was real. Had I not authorized waterboarding on senior al Qaeda leaders, I would have had to accept a greater risk that the country would be attacked. In the wake of 9/11, that was a risk I was unwilling to take. My most solemn responsibility as president was to protect the country. I approved the use of the interrogation techniques.[53]

The SSCI Narrative Report continues:

On July 13, 2002, according to CIA records, attorneys from the CIA's Office of General Counsel met with the Legal Adviser to the National Security Council, a Deputy Assistant Attorney General from OLC, the head of the Criminal Division of the Department of Justice, the chief of staff to the Director of the Federal Bureau of Investigation, and the Counsel to the President to provide an overview of the proposed interrogation plan for Abu Zubaydah. On July 17, 2002, according to CIA records, the Director of Central Intelligence (DCI) [George Tenet] met with the National Security Advisor[Condoleezza Rice], who advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah. This advice, which authorized CIA to proceed as a policy matter, was subject to a determination of legality by OLC.
On July 24, 2002, according to CIA records, OLC orally advised the CIA that the Attorney General had concluded that certain proposed interrogation techniques were lawful and, on July 26, that the use of waterboarding was lawful. OLC issued two written opinions and a letter memorializing those conclusions on August 1, 2002.[54]                                       

The two August 1 OLC memos, signed by Assistant Attorney General Jay Bybee and largely written by Deputy Assistant Attorney General John Yoo, included what has become known as the “First Bybee Memo” or “Torture Memo.” It found that torturing al Qaeda detainees in captivity abroad may be “justified,” and that international laws against torture "may be unconstitutional if applied to interrogations" conducted in the “circumstances of the current war.” The memo added that the doctrines of "necessity and self-defense could provide justifications that would eliminate any criminal liability" on the part of officials who tortured al Qaeda detainees.[55]

The memo also took an extremely narrow view of which acts might constitute torture. It referred to seven practices that US courts have ruled constitute torture: severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person. It then advised that “interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law.” The memo asserted that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The memo also suggested that "mental torture" only included acts that resulted in "significant psychological harm of significant duration, e.g., lasting for months or even years."[56]

A second Bybee memo, declassified in 2009, addressed the legality of 10 specific interrogation tactics, including waterboarding, against Abu Zubaydah (who was incorrectly described in the memo as “one of the highest ranking members of the al Qaeda terrorist organization”). The opinion described in great detail how the techniques should be used, including placing the detainee “in a cramped confinement box with an insect” as “he appears to have a fear of insects” as well as waterboarding, which the Bybee memo concluded did not constitute torture because it did not result in “prolonged mental harm.”[57]

With these approvals, CIA officials began using more abusive interrogation methods on Zubaydah. According to The New York Times, “At times, Mr. Zubaydah, still weak from his wounds, was stripped and placed in a cell without a bunk or blankets. He stood or lay on the bare floor, sometimes with air-conditioning adjusted so that, one official said, Mr. Zubaydah seemed to turn blue. At other times, the interrogators piped in deafening blasts of music by groups like the Red Hot Chili Peppers.”[58]According to the ICRC report, Zubaydah claimed he was slammed directly against a hard concrete wall. Zubaydah was waterboarded 83 times.[59]

Zubaydah later told the ICRC that while being waterboarded he struggled against the straps, causing pain in his wounds, and that he usually vomited after each “suffocation”:

I was ... 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. 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. I lost control of my urine. Since then I still lose control of my urine when under stress.
I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me…. I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.[60]

In 2007, Zubaydah told a tribunal at Guantanamo Bay that much information he provided to interrogators while he was subjected to what he called “torture” were not true.[61]

The CIA videotaped Zubaydah’s interrogations. In 2005, however, the agency destroyed 90 videotapes of Zubaydah's interrogations, which resulted in a criminal investigation of officials. In November 2010, Justice Department officials confirmed that no charges would be filed in connection with the destruction of the tapes.[62]

As of this writing, Zubaydah remains in Guantanamo. He has not been charged with any offense. Although Bush had described Zubaydah as “one of al Qaeda’s top operatives plotting and planning death and destruction on the United States,”[63] in 2009 the Justice Department recognized that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001.”[64] While there is much debate over the value of the information he provided, the Washington Post concluded that, “not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions according to former senior government officials who closely followed the interrogations.”[65]


Growth of the CIA Program

Many of the same interrogation methods used on Zubaydah were later used on other detainees in CIA custody, including Abd al-Rahim al-Naishiri, who was apprehended in the United Arab Emirates in August 2002; Ramzi Bin al Shibh, apprehended in Pakistan in September 2002; Khalid Sheikh Mohammad, apprehended in Pakistan in March 2003; and Riduan Isamuddin, also known as Hambali, apprehended in Bangkok in August 2003.

In February 2008, CIA Director Michael Hayden and OLC head Stephen Bradbury confirmed that waterboarding was used on CIA detainees; Hayden mentioned waterboarding being used on al-Nashiri, Zubaydah, and Khalid Sheikh Mohammed specifically.[66]The ICRC interviewed the 14 “high-value” detainees after they had been moved to Guantanamo and found that three had allegedly been waterboarded, among other unlawful methods.[67]According to its report:

The methods of ill-treatment alleged to have been used include the following:
Suffocation by water poured over a cloth placed over the nose and mouth [waterboarding], alleged by three of the fourteen.
Prolonged stress standing position , naked, held with the arms extended and chained above the head, as alleged by ten of the fourteen, for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves.
Beatings by use of a collar held around the detainee’s neck and used to forcefully bang the head and body against the wall, alleged by six of the fourteen.
Beating and kicking , including slapping, punching, kicking to the body and face, alleged by nine of the fourteen.
Confinement in a box to severely restrict movement alleged in the case of one detainee.
Prolonged nudity alleged by eleven of the fourteen during detention, interrogation and ill-treatment; this enforced nudity lasted for periods ranging from several weeks to several months.
Sleep deprivation was alleged by eleven of the fourteen through days of interrogation, through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noise or music. One detainee was kept sitting on a chair for prolonged periods of time.
Exposure to cold temperature was alleged by most of the fourteen, especially via cold cells and interrogation rooms, and for seven of them, by the use of cold water poured over the body or, as alleged by three of the detainees, held around the body by means of a plastic sheet to create an immersion bath with just the head out of the water.
Prolonged shackling of hands and/or feet was alleged by many of the fourteen.
Threats of ill-treatment to the detainee and/or his family, alleged by nine of the fourteen.
Forced shaving of the head and beard, alleged by two of the fourteen.
Deprivation/restricted provision of solid food from 3 days to 1 month after arrest, alleged by eight of the fourteen.
…each specific method was … in fact applied in combination with other methods, either simultaneously, or in succession.[68]

The CIA inspector general’s report, finally released in heavily redacted form in 2009, details incidents including mock executions, waterboarding, execution threats using an unloaded semi-automatic handgun, smoke inhalation to provoke vomiting, threatening a naked and hooded detainee with a revving power drill, death threats and threats against family members, and pressing on pressure points to provoke repeated fainting.[69]

The expansion of the CIA program was later discussed and authorized, after the fact, in a meeting at the White House in early 2003. As the 2009 SSCI narrative states:

In the spring of 2003, the DCI [George Tenet] asked for a reaffirmation of the policies and practices in the interrogation program. In July 2003, according to CIA records, the NSC Principals met to discuss the interrogation techniques employed in the CIA program. According to CIA records, the DCI [George Tenet] and the CIA’s General Counsel [John Rizzo] attended a meeting with the Vice President [Dick Cheney], the National Security Adviser [Condoleezza Rice], the Attorney General [John Ashcroft], the Acting Assistant Attorney General for the Office of Legal Counsel, [Ed Whelan],[70] a Deputy Assistant Attorney General [possibly John Yoo],the Counsel to the President [Alberto Gonzales], and the Legal Adviser to the National Security Council [John Bellinger] to describe the CIA’s interrogation techniques, including waterboarding. According to CIA records, at the conclusion of that meeting, the Principals reaffirmed that the CIA program was lawful and reflected administration policy [emphasis added].[71]

The report adds that on September 16, 2003, “pursuant to a request from the National Security Adviser [Rice], the Director of Central Intelligence [Tenet] subsequently briefed the Secretary of State [Powell] and the Secretary of Defense [Rumsfeld] on the CIA’s interrogation techniques.”[72]

The CIA detention and interrogation program appears to have been scaled back temporarily in 2004, after the Abu Ghraib scandal and a critical report by the CIA inspector general that was sent to the White House in May 2004.

There had been significant controversy within the CIA about the program, leading to an investigation by the CIA Office of Inspector General which took place through 2003 and into 2004. On May 7, 2004, only a few weeks after news of the abuse of detainees at Abu Ghraib broke, the CIA’s Inspector General John Helgerson, despite being reprimanded by a reportedly furious Vice President Cheney,[73] issued a classified report, a copy of which was sent to the highest levels of the White House, the CIA, and to the committee chairman and vice chairman and senior staff of the Senate Select Committee on Intelligence.[74]

The CIA inspector general’s report appears to have caused considerable anxiety within the White House. According to the SSCI narrative, CIA General Counsel John Rizzo attended a meeting in May 2004 with Alberto Gonzales, David Addington, John Bellinger, and several “senior Department of Justice officials” to discuss the CIA’s program and the Inspector General’s report.[75] The new OLC head, Jack Goldsmith, apparently also raised concerns with the legal analysis in earlier OLC memos, and in June 2004 Goldsmith withdrew the OLC’s unclassified August 1, 2002 opinion on the federal torture statute.[76] For reasons that are unclear, the OLC did not withdraw the classified August 1, 2002 opinion on the Zubaydah interrogation.

However, in May 2005, the new OLC head, Stephen Bradbury, issued three memoranda to the CIA embracing many of the earlier arguments in the Bybee memorandum applicable to Abu Zubaydah, and—years after the fact—formally authorizing the expansion of the techniques originally approved in 2002 to other detainees.[77] The Bradbury memoranda were declassified in 2009 along with the Second Bybee Memo.

After the Bradbury memoranda were approved, the NSC Principals Committee met on May 31, 2005. The Principals Committee, now chaired by Stephen Hadley and including Alberto Gonzales, Condoleezza Rice, and David Addington, among others, “approved” all of the techniques discussed in the May 2005 memoranda, presumably recommending to the president that he reauthorize the program, which he did.[78]

President Bush revealed the existence of the CIA detention and interrogation program a year later, in a public speech at the White House on September 6, 2006, acknowledging that suspects had been held “secretly” “outside the United States.” “[A] reason the terrorists have not succeeded,” he stated while introducing his justifications for the CIA program, “is because our government has changed its policies and given our military, intelligence and law enforcement personnel the tools they need to fight this enemy and protect our people and preserve our freedoms.”[79] Bush reauthorized the program in July 2007.[80]

The CIA Rendition Program

The CIA has regularly transferred detainees to countries known to routinely practice torture, a practice often referred to as “extraordinary rendition.”

While the US practice of rendering terrorist suspects abroad predates the September 11 attacks, the CIA’s rendition practices changed after they occurred. Rather than returning people to their home or third countries to face “justice” (albeit justice that often included torture and grossly unfair trials), the CIA began handing people over to their home or third countries, apparently to facilitate abusive interrogations.[81]

The secrecy surrounding the rendition program means that no accurate statistics exist. One study found 53 such cases, excluding those sent to Afghanistan or into US custody.[82] One such country, Jordan, was notorious for torturing security detainees, which would have been well known to US officials at the time of the transfers. Many detainees were returned to CIA custody immediately after intensive periods of abusive interrogation in Jordan.

Numerous detainees so rendered are known or believed to have been tortured. The following cases are illustrative:

Maher Arar, a Syrian-born Canadian national in transit from a family vacation through John F. Kennedy Airport in New York City was detained by US authorities acting on incorrect information from the Royal Canadian Mounted Police.[83] After holding him incommunicado for nearly two weeks, US authorities flew him to Jordan, where he was driven across the border and handed over to Syrian authorities, despite his statements to US officials that he would be tortured if sent there. Indeed, he was tortured during his confinement in a Syrian prison, often with cables and electrical cords.[84] Following an extensive investigation by the Canadian government, which cleared Arar of all terror connections, Canada offered him a formal apology and compensation of 10.5 million Canadian dollars (US$10.75 million) plus legal fees for providing the unsubstantiated information to US officials.[85] In contrast, the Bush administration refused to assist the Canadian inquiry and disregarded Canadian Prime Minister Stephen Harper’s request that the US acknowledge its inappropriate conduct. When Arar sued the US for denying him his civil rights, the Bush administration—and later the Obama administration—successfully argued the case should never be allowed to come to trial for reasons of national security.[86]

In early October 2001, Australian citizen Mamdouh Habib was arrested in Pakistan. Pakistan’s interior minister later said that Habib was sent to Egypt on US orders and in US custody.[87] Habib says that while detained in Egypt for six months, he was suspended from hooks on the wall, rammed with an electric cattle prod, forced to stand on tiptoe in a water-filled room, and threatened by a German shepherd dog.[88] In 2002, Habib was transferred from Egypt to Bagram air base in Afghanistan, then to Guantanamo Bay. On January 28, 2005, Habib was sent home from Guantanamo to Sydney, Australia.[89] In 2010, Habib sued the Australian government, claiming Australian officials were complicit in his false imprisonment and assault in Pakistan, Egypt, and Guantanamo.[90] In January 2011, the Australian government paid Habib an undisclosed amount to absolve it of legal liability in the case.[91]

In December 2001, Swedish authorities handed two Egyptians, Ahmed Agiza and Mohammed al-Zari, to CIA operatives at Bromma Airport in Stockholm. The operatives stripped them, inserted suppositories into their rectums, dressed them in a diaper and overalls, blindfolded them, and placed a hood over their heads. They were then placed aboard a US government-leased plane and flown to Egypt.[92] There the two men were reportedly regularly subjected to electric shocks and other mistreatment, including in Cairo’s notorious Tora prison.[93]

On November 16, 2003, Osama Moustafa Nasr—also known as “Abu Omar”—went missing in Milan. Sometime in 2004, he phoned his wife and friends in Milan and reportedly described being stopped in the street “by Western people,” forced into a car, and taken to an air force base.[94] From the airbase, Nasr was flown to Cairo via Germany and turned over to Egypt's secret police, the State Security Intelligence, at Tora prison.[95] There, Nasr alleged being tortured with electric shocks, beatings, rape threats, and genital abuse.[96] The UK’s Sunday Times reported that Nasr “claimed he had been tortured so badly by secret police in Cairo that he had lost hearing in one ear.”[97] In February 2007, after four years of detention, Nasr was released by an Egyptian court, which found that his detention was “unfounded.”[98] Following a subsequent police investigation and indictment, on November 4, 2009, a judge in Milan convicted, in absentia, 22 CIA agents, a US Air Force colonel, and two Italian secret agents for the kidnapping—the first and only convictions anywhere in the world against people involved in the CIA’s extraordinary renditions program.[99] The convictions were confirmed on appeal, and the sentences increased. Each received a sentence of between seven and nine years’ imprisonment, and were ordered to pay €1 million (US$1.44 million) to Nasr and €500,000 (US$720,469) to Nasr's wife.[100] The Italian government has, to date, refused the prosecutor’s request to seek extradition of the US agents.[101]

In November 2001, Muhammad Haydar Zammar, a German citizen of Syrian descent,[102] was arrested in Morocco and flown to Syria.[103] Moroccan government sources have told reporters that the CIA asked them to arrest Zammar and send him to Syria,[104] and that CIA agents took part in his interrogation sessions in Morocco.[105] Zammar was taken to the same Syrian prison where Maher Arar was held.[106] On July 1, 2002, TimeMagazine reported:

US officials tell Time that no Americans are in the room with the Syrian who interrogate Zammar. US officials in Damascus submit written questions to the Syrians, who relay Zammar’s answers back. State Department officials like the arrangement because it insulates the US government from any torture the Syrians may be applying to Zammar. And some State Department officials suspect that Zammar is being tortured.[107]

Muhammad Saad Iqbal Madni, a Pakistani national, was arrested in Jakarta, Indonesia on January 9, 2002. Indonesian officials and diplomats told The Washington Post this was done at the CIA’s request. Several days later, Egypt made a formal request that Indonesia extradite Madni for unspecified, terrorism-related crimes. However, according to “a senior Indonesian government official … [t]his was a US deal all along.… Egypt just provided the formalities.”[108] On January 11, the Indonesian officials said, Madni was taken onto a US registered Gulfstream V jet at a military airport, and flown to Egypt for interrogation.[109]The New York Times reported that “Iqbal said he had been beaten, tightly shackled, covered with a hood and given drugs, subjected to electric shocks and, because he denied knowing Bin Laden, deprived of sleep for six months”; in his own words, “[t]hey make me blind and stand up for whole days.”[110] On September 11, 2004, the Times of London reported that despite repeated inquiries by Madni’s relatives, “nothing has been seen or heard from” him since he was taken from Jakarta.[111] However, he was later transferred to Bagram air base in Afghanistan,[112] and from there to Guantanamo Bay.[113] He later stated that he had attempted suicide.[114] He was ultimately repatriated in August 2008, after spending more than six years in US custody. At that time, he was reported to have difficulty walking, his left ear was infected and was operated on by a Pakistani surgeon, he was receiving physical therapy for back problems, and he was “dependent on a cocktail of antibiotics and antidepressants.”[115]

Coercive Interrogations by the Military

The NSC’s approval of coercive interrogation techniques by the CIA in 2002 set the stage for approval of similar unlawful methods for military interrogators at Guantanamo Bay, Afghanistan, and Iraq.

Abuses by Military Interrogators in Afghanistan, Guantanamo, and Iraq

Abusive interrogations by the military appear to have begun in Afghanistan as early as December 2001 and continued despite high-profile media accounts, and perhaps encouraged by the sidelining and disparaging of the Geneva Conventions by US officials.

Reports by civilian Federal Bureau of Investigation (FBI) agents who witnessed detainee abuse by military personnel at Guantanamo—including forcing chained detainees to sit in their own excrement—reinforced accounts by former detainees describing the use of painful stress positions, extended solitary confinement, military dogs to threaten them, threats of torture and death, and prolonged exposure to extremes of heat, cold, and noise.[116] Videotapes of military riot squads subduing suspects reportedly show the guards punching some detainees, tying one to a gurney for questioning and forcing a dozen to strip from the waist down.[117] Former detainees said they were subjected to weeks and even months in solitary confinement—which was at times either suffocatingly hot, or cold from excessive air conditioning—as punishment for not cooperating in interrogations or for violating prison rules.[118]

Many techniques used on detainees by military personnel at Abu Ghraib prison and other Iraqi locations resembled abuse seen earlier in Afghanistan and Guantanamo, including forced standing and exercise, shackling detainees in painful positions or close confinement, extensive long-term sleep deprivation, and exposure to cold.[119]

Abuse spread throughout Iraq from late 2003 and into 2004. Documented cases included beatings and suffocation,[120] sexual abuse,[121] mock executions,[122] and electro-shock torture.[123] Human Rights Watch reported in 2006 on serious abuses by military Special Mission Unit Task Force units in Iraq, including allegations of beatings, exposure to extreme cold or heat, threats of death, sleep deprivation, various forms of psychological torture or mistreatment, painful stress positions, and in one instance, giving a prisoner urine to drink.[124] These abuses received considerable internal military attention and media coverage from 2004 to 2006.[125]

Approving Illegal Techniques for Military Interrogation

While the Bush administration sought to portray the decision to allow the military to use aggressive interrogation methods as originating from Guantanamo,[126] reconstructions of the events, including those provided in a book by lawyer Philippe Sands, indicate the decision came from above, from Defense Secretary Rumsfeld, Defense General Counsel Haynes, Vice President Cheney’s legal counsel David Addington, and White House Counsel Alberto Gonzales, among others.[127]

The Office of the Secretary of Defense began in December 2001 to inquire about Joint Personnel Recovery Agency’s aggressive SERE techniques.[128] Not long after, JPRA personnel provided: training materials to Guantanamo interrogators in February 2002;[129] training to DIA personnel deploying to Afghanistan and Guantanamo in March 2002; at least one written “Draft Exploitation Plan” for possible dissemination to various military and intelligence-gathering agencies in April 2002;[130] and written materials and advice on the use of SERE mock interrogation techniques to psychologists working with interrogators in Guantanamo in June and July 2002.

The tactics used in mock SERE interrogations resembled many of the practices used immediately afterwards in Afghanistan and Guantanamo. These included stripping detainees naked for degradation purposes, exploiting cultural or religious taboos, and use of forced standing, exposure to cold, and prolonged sleep deprivation.

In July 2002, as the Bybee memos were being drafted to permit abusive techniques on Abu Zubaydah, Defense Deputy General Counsel Richard Shiffrin, on behalf of General Counsel Haynes, requested SERE instructor lesson plans, a list of the mock interrogation techniques used in SERE training, and a memorandum describing the “long-term psychological effects” of SERE training on students, and in particular the effects of waterboarding, a document which was also given to the CIA and OLC when they were drafting the August 1, 2002 Abu Zubaydah memorandum.[131] The SASC Report explains:

The list of SERE techniques included such methods as sensory deprivation, sleep disruption, stress positions, waterboarding, and slapping.… Mr. Shiffrin, the DoD Deputy General Counsel for Intelligence, confirmed that a purpose of the request was to “reverse engineer” the techniques.[132]

In mid-September 2002, JPRA staff trained Guantanamo personnel, using abusive techniques used in SERE schools.[133]

A week later, on September 25, 2002, a delegation of senior officials visited Guantanamo to discuss interrogations there.[134] The group included Defense General Counsel Haynes, CIA General Counsel Rizzo, Chief of the Criminal Division of the Department of Justice Michael Chertoff, the Vice President’s counsel Addington (“the guy in charge” according to the military lawyer present),[135] and Gonzales, counsel to the president. According to the SASC Report, Guantanamo commander Maj. Gen. Michael Dunlavey briefed the group on a number of issues including “policy constraints” affecting interrogations. Gen. Dunlavey told Philippe Sands that the group discussed the interrogation of Mohamed al-Qahtani, a detainee suspected of direct involvement in the September 11 attacks. “They wanted to know what we were doing to get to this guy … and Addington was interested in how we were managing it.” Lt. Col. Diane Beaver, Gen. Dunlavey’s senior counsel, confirmed Dunlavey’s account, telling Sands the group had essentially delivered the message to do “whatever needed to be done.”[136]

By October 11, 2002, Dunlavey sent a memo and an attached legal opinion by Lt. Col. Beaver to Gen. James Hill of Southern Command requesting authority to use aggressive interrogation techniques.[137] They included techniques aimed at humiliation and sensory deprivation including use of stress positions, forced standing, isolation for up to 30 days, deprivation of light and sound, 20-hour interrogations, removal of religious items, removal of clothing, forcible grooming such as the shaving of facial hair, and exploiting individual phobias such as fear of dogs. A higher category of techniques included the use of “mild, non-injurious physical contact,” described as grabbing, poking, and light pushing; use of scenarios designed to convince the detainee that death or severely painful consequences were imminent for him or his family; exposure to cold weather or water; and, notably, waterboarding.

In late October 2002, the documents were sent from Gen. Hill to Gen. Richard Meyers, the chairman of the Joint Chiefs of Staff, with recommendations that the secretary of defense authorize the techniques listed.

On November 14, 2002, Col. Britt Mallow, a senior commander at the Criminal Investigation Task Force (CITF) at Guantanamo who had already raised concerns about abusive interrogations with senior Pentagon officials, together with others expressed his legal concerns to Guantanamo commander Gen. Geoffrey Miller and Defense General Counsel Haynes.[138]

One FBI agent, Jim Clemente, an attorney and former prosecutor, warned that the proposed interrogation plans violated the federal torture statute and that interrogations could lead to prosecution,[139] concerns that were shared with FBI Director Robert Mueller, and senior attorneys in the Defense Department’s General Counsel’s office.[140] At the same time, the FBI reported already ongoing abuses to the Defense Department General Counsel’s office.[141]

Nevertheless, General Counsel Haynes submitted the techniques to Defense Secretary Rumsfeld for approval in late November 2002, with a one-page cover letter recommending he approve most of the methods—but not waterboarding.[142] Rumsfeld approved the recommended techniques, including:

“The use of stress positions (like standing) for a maximum of four hours”;
“Use of the isolation facility for up to 30 days”;
“The detainee may also have a hood placed over his head during transportation and questioning”;
“Deprivation of light and auditory stimuli”;
“Removal of all comfort items (including religious items)”;
“Forced grooming (shaving of facial hair, etc)”;
“Removal of clothing”; and
“Using detainees’ individual phobias (such as fear of dogs) to induce stress.”[143]

Rumsfeld appended a handwritten note to his authorization of these techniques: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?”[144]

Those captured or otherwise taken into custody during the international armed conflict in Iraq and Afghanistan should have been presumptively classified as POWs, and afforded the protections due to POWs under the Third Geneva Convention.[145] In any case, the coercive interrogation methods used were in violation of the protections afforded to all detainees under article 3 common to the four Geneva Conventions of 1949 (Common Article 3) and other prohibitions on inhuman treatment found in customary international law.[146] And individuals responsible for carrying out or ordering torture or other inhuman treatment of detainees, whether or not they have POW status, may be prosecuted for war crimes.

Within weeks, JPRA SERE school personnel were again training Guantanamo interrogators.[147] But controversy continued to brew after Rumsfeld’s order.

Navy General Counsel Alberto Mora took his concerns to the secretary of the Navy, Gordon England, and with England’s approval spoke with Defense’s Haynes three times to warn him about the potential criminal liability associated with the al-Qahtani interrogation and Rumsfeld’s December 2, 2002 memorandum. Mora’s concerns were also put before Deputy Secretary of Defense Paul Wolfowitz, Jane Dalton, the general counsel to the Joint Chiefs, and Rumsfeld himself.[148] On January 9, 2003, Mora warned Haynes that the “interrogation policies could threaten Secretary Rumsfeld’s tenure and could even damage the presidency.”[149] Mora also left a memorandum with Haynes written by Navy JAG Corps Commander Stephen Gallotta, stating that some of the techniques authorized by Rumsfeld in his December 2, 2002 order, taken alone and especially when taken together, could amount to torture; that some constituted assault; and that most of the techniques, absent lawful purpose, were “per se unlawful.”[150]

On January 15, 2003, Mora sent Haynes a draft memo that he planned to sign concluding that the techniques were illegal and triggered criminal liability, and stated that he would sign the document, unless Rumsfeld’s December 2, 2002 authorization was rescinded. Haynes told Mora that he raised Mora’s concern with Rumsfeld, and that Rumsfeld in fact rescinded his December 2, 2002 authorization that same day, January 15, 2003, and created a “working group review” of the interrogation policy.[151] After the OLC provided a draft legal interpretation and a March 2003 memorandum reusing many of the arguments in the 2002 memoranda for the CIA, Rumsfeld issued a new memorandum on April 16, 2003, which, while more restrictive than the December 2002 rules, still allowed techniques that went beyond what the Geneva Conventions permitted for POWs or detained civilians.[152] Indeed, the defense secretary's memo itself states in relation to several techniques—including isolation and removing privileges from detainees—that “those nations that believe detainees are subject to POW protections” may find the techniques violate those protections.

Despite Rumsfeld’s January 15, 2003 rescission of authority the SASC report implies that, “[Rumsfeld’s] initial approval six weeks earlier continued to influence interrogation policies.”.[153]

Migration of the Approved Techniques

The Defense Department investigation chaired by James R. Schlesinger found that “the augmented techniques [approved by Rumsfeld] for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.”[154]

Contrary to the attention given interrogation techniques at Guantanamo, there was no prescribed interrogation regime for prisoners in Afghanistan. According to the review of Defense Department interrogation operations conducted by Vice Adm. Albert T. Church, III, the US military command in Afghanistan in January 2003 submitted, as requested, a list of interrogation techniques to the military's Joint Staff and Central Command.[155] The list included techniques “ similar” to those approved by Rumsfeld for Guantanamo, but were said by Church to have been reached locally. When the command in Afghanistan didn’t hear complaints, it “interpreted this silence to mean that the techniques … were unobjectionable to higher headquarters, and therefore could be considered approved policy.”[156]

A 2006 Defense Department Inspector General report on detainee abuse explained how the techniques put in place in late 2002 and re-crafted in early 2003 “cross-fertilized” with abuses occurring in Afghanistan and migrated to Iraq.[157] The 2008 SASC Report details how Special Mission Unit Task Force (SMU TF) officials from Afghanistan visited Guantanamo in late 2002, compared notes on techniques from JPRA, and started drawing up a more formal list of techniques to be specifically authorized. Officials in Afghanistan appear to have begun drawing up a set of policies based both on the techniques they were already utilizing and others they had learned from their trip to Guantanamo.

A large portion of the SMU TF policies were based on Rumsfeld’s December 2, 2002 authorization of techniques for Guantanamo, and the overarching legal reasoning contained in President Bush’s February 7, 2002 decision to reject the application of the Geneva Conventions to al Qaeda and Taliban detainees—even though the detainees in Iraq were a different and distinct set of combatants. Curiously, the techniques from Rumsfeld’s December 2002 Guantanamo authorization appear in January 2003 SMU TF policy documents even though the original authorization was rescinded.

The abuses involving the SMU TF in Iraq, discussed above, appeared to be based on SMU TF policies from Afghanistan.[158] The 2006 Defense Department inspector general’s report and 2008 SASC report specifically found that the SMU TF in Iraq had based its first interrogation policies on the “Standard Operating Procedure”(SOP) used by SMU TF in Afghanistan.[159]

Other military intelligence personnel in Iraq also based their interrogation policies on the Afghanistan-Iraq SMU TF policies. Capt. Carolyn Wood, who had helped develop interrogation policies for non-special forces in Afghanistan in late 2002—and who was implicated in the beating deaths of two detainees there in December 2002—was stationed in Iraq and put in command of Abu Ghraib interrogation operations in mid-2003, under the new Combined Joint Task Force 7 (CJTF-7). In July 2003, Capt. Wood drafted a proposed interrogation policy, based on the Afghanistan and Iraq SMU TF guidelines, including proposed use of sleep deprivation and “’vary comfort positions’ (sitting, standing, kneeling, prone); presence of military working dogs; 20-hour interrogations; isolation, and yelling, loud music, and light control.”[160] Wood admitted that, even when she began, interrogators were already using “stress positions” on detainees.[161] CJTF-7 appears to have also sought input from other intelligence personnel for a “wish list” of interrogation techniques.[162] On August 27, 2003, Wood resubmitted her list of techniques, adding “sensory deprivation” to the list.[163]

The overall military commander for Iraq, Gen. Ricardo Sanchez, approved Wood’s proposed policy, which was promulgated on September 14, 2003. The abusive techniques approved, along with the techniques used by SMU TF units, were among those being used at Abu Ghraib through the beginning of 2004.[164]

[33] An account of the September 15, 2001 NSC meeting was provided by a member of the NSC Principals Group and Secretary of the Treasury Paul O’Neill, corroborated by additional administration sources, in Ron Suskind, The Price of Loyalty, p. 186.

[34] See for example, Mark Danner, “US Torture: Voices from the Black Sites,” New York Review of Books, April 9, 2009, http://www.nybooks.com/articles/archives/2009/apr/09/us-torture-voices-from-the-black-sites/ (accessed June 15, 2011). A few weeks later, on October 25, 2001, as the war in Afghanistan was unfolding, Bush signed National Security Presidential Directive 9, “Defeating the Terrorist Threat to the United States.” The directive extended the underlying orders of the September 17, 2001 memorandum and other orders and essentially introduced the concept of a “global war on terrorism,” not only against al Qaeda and the Taliban but against all terrorist groups that threatened the United States. In the words of the September 11th Commission Report, the United States would “strive to eliminate all terrorist networks, dry up their financial support, and prevent them from acquiring weapons of mass destruction. The goal was the ‘elimination of terrorism as a threat to our way of life.’” See National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report, July 2004, http://govinfo.library.unt.edu/911/report/index.htm (accessed June 24, 2011), chapter 10.

[35] An account of the September 26, 2001 NSC meeting, based on numerous interviews of Bush administration officials including George Bush, Condoleezza Rice, Colin Powell, and George Tenet, is provided in Bob Woodward, Bush at War, (New York: Simon and Schuster, 2002), p. 146 (discussing renditions as “capturing or snatching” suspects overseas). There are also compelling allegations that the CIA also rendered suspects to Morocco and Syria. See Human Rights Watch, Getting Away with Torture? http://www.hrw.org/en/reports/2005/04/23/getting-away-torture-0, chapter IV.

[36] See for example, Alex Perry, “Inside the Battle at Qala-I-Jangi,” Time, December 1, 2001, http://www.time.com/time/nation/article/0,8599,186592-2,00.html (accessed June 17, 2011).

[37] Human Rights Watch, as well as several media correspondents, interviewed numerous detainees who were held at Kandahar and who alleged being beaten, stripped naked, and intentionally exposed to extreme cold, among other abuses. See Human Rights Watch, ‘Enduring Freedom’: Abuses by US Forces in Afghanistan, March 2004, vol. 16, no. 3(C), http://www.hrw.org/en/reports/2004/03/07/enduring-freedom-0, footnotes 94-98 and accompanying text. See also Carlotta Gall, “Released Afghans Tell of Beatings,” New York Times, February 11, 2002, http://www.nytimes.com/2002/02/11/world/a-nation-challenged-captives-released-afghans-tell-of-beatings.html?scp=1&sq=Carlotta%20Gall,%20%93Released%20Afghans%20Tell%20of%20Beatings,%94%20%20February%2011,%202002%20&st=cse (accessed June 15, 2011); Ellen Knickmeyer, “Survivors of raid by US forces say victims were among America's best friends,” Associated Press, February 6, 2002; Molly Moore, “Villagers Released by American Troops Say They Were Beaten, Kept in ‘Cage,’” Washington Post, February 11, 2002; Eric Slater, “US Forces Beat Afghans After Deadly Assault, Ex-Prisoners Say,” Los Angeles Times, February 11, 2002, http://articles.latimes.com/2002/feb/11/news/mn-27467 (accessed June 15, 2011) ; James Meek, “People The Law Forgot,” Guardian, December 3, 2003, http://www.guardian.co.uk/world/2003/dec/03/guantanamo.usa1 (accessed June 15, 2011). Former Prime Minister Tony Blair was aware of US military abuse of detainees in Afghanistan as early as January 2002. See Ian Cobain, “Tony Blair Knew of Secret Policy on Terror Interrogations,” Guardian, June 28, 2009, http://www.guardian.co.uk/politics/2009/jun/18/tony-blair-secret-torture-policy (accessed June 22, 2011).

[38] See Department of the Army, “Commander’s Report of Disciplinary or Administrative Action, 0114-02-CID369-23525,” May 23, 2003, http://www.aclu.org/torturefoia/released/745_814.pdf (accessed June 24, 2011), pp. 11-12, 27; see also “Afghanistan: Killing and Torture by US Predate Abu Ghraib,” Human Rights Watch news release, May 20, 2005, http://www.hrw.org/en/news/2005/05/20/afghanistan-killing-and-torture-us-predate-abu-ghraib.

[39] This case was first revealed in a media report in 2005: Dana Priest, “CIA Avoids Scrutiny of Detainee Treatment,” Washington Post, March 3, 2005, http://www.washingtonpost.com/wp-dyn/articles/A2576-2005Mar2.html (accessed June 15, 2011). It was subsequently confirmed in a report by the CIA Office of the Inspector General (OIG) in 2004, declassified in August 2009: CIA Office of the Inspector General, “Special Review: Counterterrorism Detention and Interrogation Activities (September 2001 – October 2003),” May 7, 2004, http://graphics8.nytimes.com/packages/pdf/politics/20090825-DETAIN/2004CIAIG.pdf (accessed June 24, 2011)(“CIA OIG report”). See also Douglas Jehl and Tim Golden, “CIA to Avoid Charges in Most Prisoner Deaths,” New York Times, October 23, 2005, http://www.nytimes.com/2005/10/23/international/asia/23intel.html (accessed June 15, 2011).

[40] See Carlotta Gall, "U.S. Military Investigating Death of Afghan in Custody," New York Times, March 4, 2003, http://www.nytimes.com/2003/03/04/international/asia/04AFGH.html (accessed June 24, 2011).Information about these cases is also based on extensive conversations with journalists who have researched the cases and requested information from US military spokespeople in Kabul during 2003.

[41] Senate Committee of Armed Services, “Report on Inquiry into the Treatment of Detainees in US Custody,” November 20, 2008, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf (accessed June 21, 2011) (“SASC Report”), p. 54 (citing minutes from an October 2002 Counter Resistance Strategy meeting between military intelligence officers, military attorneys, and a senior attorney from the CIA. The minutes reveal that several abusive interrogation methods under discussion at the meeting and later approved for Guantanamo were known to be already in use in Afghanistan. For example, it was noted by one meeting participant, David Becker, that sleep deprivation was already in use in Afghanistan, as another participant added that “officially it is not happening.”).

[42] James R. Schlesinger, Department of Defense, “Final Report of the Independent Panel to Review DoD Detention Operations,” August 24, 2004, http://www.defense.gov/news/Aug2004/d20040824finalreport.pdf (accessed June 21, 2011) (“Schlesinger Report”), pp. 8-9.

[43] David Johnston and Mark Mazzetti, “A Window Into C.I.A.’s Embrace of Secret Jails,” New York Times, August 12, 2009, http://www.nytimes.com/2009/08/13/world/13foggo.html (accessed June 24, 2011) and Matthew Cole, “Lithuania Hosted Secret CIA Prison,” ABC News, August 20, 2009, http://abcnews.go.com/Blotter/story?id=8373807 (accessed June 24, 2011). See also United Nations Human Rights Council, Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, et al., Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism, A/HRC/13/42, February 12, 2010, http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-42.pdf (accessed June 24, 2011), chapter 4, paras. 98-140. The location and set up of CIA secret detention sites in various locations was documented in numerous sources from 2005 to 2009, including “US Operated Secret ‘Dark Prison’ in Kabul,” Human Rights Watch press release, December 19, 2005, http://www.hrw.org/en/news/2005/12/18/us-operated-secret-dark-prison-kabul; Parliamentary Assembly of the Council of Europe (PACE), Committee on Legal Affairs and Human Rights, report of Rapporteur Dick Marty, “Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report,” doc. 11302 rev., June 11, 2007, http://assembly.coe.int/Documents/WorkingDocs/Doc07/edoc11302.pdf (accessed June 15, 2011). See also Dana Priest, “CIA Holds Terror Suspects in Secret Prisons" Washington Post, November 2, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/11/01/AR2005110101644.html (accessed June 15, 2011).

[44] In 2007, Human Rights Watch and five other human rights organizations published the names and details of 39 people who are believed to have been held in secret US custody abroad and whose whereabouts where then unknown. Human Rights Watch, Off the Record: US Responsibility for Enforced Disappearances in the “War on Terror,” June 7, 2007, http://www.hrw.org/legacy/backgrounder/usa/ct0607/ct0607web.pdf. According to CIA Director Hayden, “fewer than 100 people have been detained at CIA’s facilities.” Remarks of Central Intelligence Agency Director Gen. Michael V. Hayden at the Council on Foreign Relations, September 7, 2007, transcript at http://www.cfr.org/terrorism/conversation-michael-hayden-rush-transcript-federal-news-service/p14162 (accessed June 24, 2011).

[45] International Committee of the Red Cross (ICRC), Regional Delegation for United States and Canada, “Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody,” February 2007, http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf (accessed June 15, 2011).

[46] “Transcript—President Bush’s Speech on Terrorism,” New York Times, September 6, 2006, http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?pagewanted=print, (accessed June, 16 2011).

[47] Sheryl Gay Stolberg, “Bush Signs New Rules to Prosecute Terror Suspects,” New York Times, October 18, 2006, http://www.nytimes.com/2006/10/18/washington/18detain.html (accessed June 15, 2010).

[48] Executive Order 13491, “Ensuring Lawful Interrogations,” signed January 22, 2009, http://edocket.access.gpo.gov/2009/pdf/E9-1885.pdf (accessed June 15, 2011). CIA Director Leon Panetta confirmed that the president's order had been implemented in an April 9, 2009 memorandum to all CIA staff that stated unequivocally: "The CIA no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites." “Message from the Director: Interrogation Policy and Contracts,” CIA press release, April 9, 2009, https://www.cia.gov/news-information/press-releases-statements/directors-statement-interrogation-policy-contracts.html (accessed June 15, 2011).

[49]SeePACE, Committee on Legal Affairs and Human Rights, “Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report,” June 11, 2007, http://assembly.coe.int/Documents/WorkingDocs/Doc07/edoc11302.pdf, para. 70 (stating that “Thailand hosted the first CIA ‘black site,’ and that Abu Zubaydah was held there after his capture”).

[50] Senate Select Committee on Intelligence (SSCI), “Declassified Narrative Describing the Department of Justice Office of Legal Counsel’s Opinions on the CIA’s Detention and Interrogation Program,” document released April 22, 2009, http://intelligence.senate.gov/pdfs/olcopinion.pdf (accessed June 24, 2011), pp. 2-3.

[51] “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 techniques used in SERE school are based, in part, on Chinese Communist techniques used during the Korean War…” A former senior JPRA psychologist, James Mitchell, began working for the CIA in December 2001; he and another JPRA psychologist, Bruce Jessen, provided consultation services for CIA in early 2002. JPRA also provided training for Defense Intelligence Agency interrogators deploying to Afghanistan and Guantanamo in February-March 2002 and training for “other government agencies”—CIA interrogators—in July 2002. SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, pp. xiii, 6-11.

[52] Ibid., p. xiii.

[53]George W. Bush, Decision Points, p. 169.

[54] SSCI, “Declassified Narrative,” April 22, 2009, http://intelligence.senate.gov/pdfs/olcopinion.pdf, pp. 3-4. According to the account of Ali Soufan, an FBI agent involved in the first parts of Abu Zubaydah’s interrogation, however, some of the harsher techniques such as prolonged sleep deprivation, stripping the detainee naked, and placing him in painful positions in a small box started on Zubaydah in May 2002. According to Soufan, a CIA official told him in April 2002 that the aggressive techniques already had gotten approval from the "highest levels" in Washington. The official even waved a document in front of Soufan, saying the approvals "are coming from [White House counsel Alberto] Gonzales.” Michael Isikoff, “‘We Could Have Done This the Right Way’: How Ali Soufan, an FBI agent, got Abu Zubaydah to talk without torture,” Newsweek, April 25, 2009, http://www.newsweek.com/id/195089 (accessed June 15, 2011.

[55] Memorandum from Jay S. Bybee, assistant attorney general, to Alberto R. Gonzales, counsel to the president, regarding "Standards for Conduct of Interrogation under 18 U.S.C. Sections 2340-2340A," August 1, 2002, http://news.findlaw.com/wp/docs/doj/bybee80102mem.pdf (accessed June 15, 2011) (“First Bybee Memo”), p. 2, 39.

[56] Ibid., pp. 1, 24.

[57] Memorandum from Jay S. Bybee, assistant attorney general, to John Rizzo, acting general counsel of the CIA, regarding “Interrogation of al Qaeda Operative,” August 1, 2001, http://image.guardian.co.uk/sys-files/Guardian/documents/2009/04/16/bybee_to_rizzo_memo.pdf (accessed June 25, 2011) (“Second Bybee Memo”), pp. 2, 10-11.

[58] Johnston, “At a Secret Interrogation, Dispute Flared Over Tactics,” New York Times, http://www.nytimes.com/2006/09/10/washington/10detain.html.

[59]Memorandum from Steven G. Bradbury, principal deputy assistant attorney general, to John A. Rizzo, senior deputy general counsel, CIA, regarding “Application of United States Obligations under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees,” May 30 2005, http://ccrjustice.org/files/05-30-2005_bradbury_40pg_OLC%20torture%20memos.pdf (accessed June 15, 2011), p. 37. See also “The CIA Interrogation of Abu Zubaydah,” http://www.aclu.org/files/assets/CIA_Interrogation_of_AZ_released_04-15-10.pdf (accessed June 15, 2011).

[60] See ICRC, “Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody,” http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf, p. 30.

[61] See “Verbatim Transcript of Guantanamo Bay Combatant Status Review Tribunal hearing of ISN 10016 [Zayn al Abidin Muhammad Husayn aka Abu Zubaydah],” March 27, 2007, http://www.defenselink.mil/news/transcript_ISN10016.pdf (accessed June 15, 2011), p. 23-4.

[62] “Statement on the Investigation into the Destruction of Videotapes by CIA Personnel,” Department of Justice news release, November 9, 2010, http://www.justice.gov/opa/pr/2010/November/10-ag-1267.html (accessed June 15, 2011).

[63] George W. Bush, “Remarks by the President at Connecticut Republic Committee Luncheon,” Hyatt Regency Hotel, Greenwich, Connecticut, April 9, 2002, http://georgewbush-whitehouse.archives.gov/news/releases/2002/04/20020409-8.html (accessed June 22, 2001).

[64]Zayn Al Abidin Muhammad Husayn v. Robert Gates, Respondents Memorandum of Points and Authorities in Opposition to Petitioner’s Motion for Discovery and Petitioner’s Motion for Sanctions, United States District Court for the District of Columbia, Civil Action No. 08-cv-1360, October 27, 2009, http://archive.truthout.org/files/memorandum.pdf (accessed June 22, 2011), p. 82.

[65] Peter Finn and Joby Warrick, “Detainee’s Harsh Treatment Foiled No Plots, Washington Post, March 29, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/03/28/AR2009032802066.html (accessed June 15, 2011). See in particular Testimony of Ali Soufan, chief executive, The Soufan Group, Before the Subcommittee on Administrative Oversight and the Courts of the Senate Committee on the Judiciary, “What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration,” 111th Congress , May 13, 2009, http://www.fas.org/irp/congress/2009_hr/wrong.html (accessed June 15, 2011) (“many of the claims made in the memos about the success of the enhanced techniques are inaccurate. … simply by putting together dates cited in the memos with claims made, falsehoods are obvious.”). According to Bush and others, however, the enhanced techniques were “highly effective.” Bush, Decision Points, p. 169.

[66] Testimony of Michael Hayden, CIA director, Before the Senate Select Committee on Intelligence, “Current and Projected Threats to the National Security,” 110th Congress, February 5, 2008, http://intelligence.senate.gov/pdfs/110824.pdf (accessed June 25, 2011), pp. 71-2; Testimony of Steven G. Bradbury, principal deputy assistant attorney General, Office of Legal Counsel, Before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Committee on the Judiciary, “Justice Department’s Office of Legal Counsel,” 110th Congress, February 14, 2008, http://judiciary.house.gov/hearings/printers/110th/40743.PDF (accessed June 25, 2011), p. 6.

[67] See ICRC, “Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody,” http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf, p. 8.

[68] Ibid., pp. 8-9.

[69] CIA OIG Report, http://graphics8.nytimes.com/packages/pdf/politics/20090825-DETAIN/2004CIAIG.pdf, pp. 41-3, 69-73.

[70] Ed Whelan has denied attending this meeting. See Scott Horton, “Straight to the Top—Correction,” Harper’s Magazine, April 29, 2009, http://harpers.org/archive/2009/04/hbc-90004849 (accessed January 11, 2011).

[71] SSCI, “Declassified Narrative,” April 22, 2009, http://intelligence.senate.gov/pdfs/olcopinion.pdf, p. 7.

[72] Ibid.

[73]Mayer, The Dark Side, p.288.

[74] See Scott Shane and Mark Mazzetti, “Interrogation Debate Sharply Divided Bush White House,” New York Times, May 3, 2009, http://www.nytimes.com/2009/05/04/us/politics/04detain.html?pagewanted=all (accessed June 15, 2011) (describing how CIA personnel in mid 2003 were already concerned that the program involved illegal activities); see also Jeffrey Smith, “Hill Panel Reviewing CIA Tactics: Investigators Examining Interrogations, Legal Advice,” Washington Post, May 10, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/05/09/AR2009050902489.html (accessed June 25, 2011); Jeffrey Smith and Joby Warrick, “CIA Fights Full Release Of Detainee Report” Washington Post, June 17, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/06/16/AR2009061603516.html (accessed June 15, 2011).

[75] SSCI, “Declassified Narrative,” http://intelligence.senate.gov/pdfs/olcopinion.pdf, p. 8.

[76] SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. 147.

[77] Mark Mazzetti and Scott Shane, “Interrogation Memos Detail Harsh Tactics by the C.I.A.,” New York Times, April 16, 2009, http://www.nytimes.com/2009/04/17/us/politics/17detain.html (accessed June 15, 2011). For the three May 2005 memos by Steven Bradbury, see ACLU, “The Bush Admin’s Secret OLC Memos,” Accountability for Torture (website), http://www.aclu.org/accountability/olc.html (accessed June 15, 2011).

[78] Email communication from James Comey, deputy attorney general, to his chief of staff, Chuck Rosenberg, May 31, 2005, publicized on June 6, 2009 (on file with Human Rights Watch), posted by the Torturing Democracy Project, http://www.gwu.edu/~nsarchiv/torturingdemocracy/documents/20050531.pdf (accessed June 27, 2011).

[79] “Transcript—President Bush’s Speech on Terrorism,” http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?pagewanted=print.

[80] Executive Order 13440, “Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency,” signed July 20, 2007, http://edocket.access.gpo.gov/2007/pdf/07-3656.pdf (accessed June 15, 2011). See alsoKaren DeYoung, “Bush Approves New CIA Methods,” Washington Post, July 21, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/07/20/AR2007072001264.html (accessed June 15, 2011) ; Mark Mazzetti, “Rules Lay Out C.I.A.’s Tactics in Questioning,” New York Times, July 21, 2007, http://www.nytimes.com/2007/07/21/washington/21intel.html (accessed June 15, 2011).

[81] Human Rights Watch, Double Jeopardy: CIA Renditions to Jordan, April 7, 2008, http://www.hrw.org/en/reports/2008/04/07/double-jeopardy-0, p. 6.

[82] Peter Bergen and Katherine Tiedemann, “Disappearing Act: Rendition by the Numbers,” The New America Foundation, March 3, 2008, http://www.newamerica.net/publications/articles/2008/disappearing_act_rendition_numbers_6844 (accessed June 15, 2011) (“We found information on 117 renditions that have occurred since September 11, 2001. When we excluded renditions to Afghanistan, CIA secret prisons (or ‘black sites’), Guantanamo, or American custody, we found 53 cases of extraordinary rendition. All individuals for whom the rendition destination is known were sent to countries that have been criticized by the State Department's annual Country Reports on Human Rights Practices, which document ‘torture or other cruel, inhuman or degrading treatment or punishment.’").

[83] Editorial, “No Price to Pay for Torture,” New York Times, June 15, 2010, http://www.nytimes.com/2010/06/16/opinion/16wed2.html (accessed June 15, 2011).

[84] Maher Arar, “Statement,” CanWest news service, November 4, 2003, http://www.cbc.ca/news/background/arar/arar_statement.html (accessed June 25, 2011).

[85] “Harper’s apology ‘means the world’: Arar,” CBC News.com, January 26, 2007, http://www.cbc.ca/news/canada/story/2007/01/26/harper-apology.html (accessed June 25, 2011).

[86] Editorial, “The Unfinished Case of Maher Arar,” New York Times, February 17, 2009, http://www.nytimes.com/2009/02/18/opinion/18wed2.html (accessed June 15, 2011). For more information on this case and 10 others, compiled from news reports, see Association of the Bar of the City of New York & Center for Human Rights and Global Justice, Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions” (New York: ABCNY & NYU School of Law, 2004), http://www.chrgj.org/docs/TortureByProxy.pdf (accessed June 15, 2011).

[87] “The Trials of Mamdouh Habib,” Dateline, SBS News (television broadcast, Australia), July 7, 2004, transcript posted by reporter Bronwyn Adcock, “Bronwyn Adcock” (blog), March 8, 2010, http://bronwynadcock.com/2010/03/08/the-trials-of-mamdouh-habib/ (accessed June 25, 2011).

[88]See Habib v. Bush, Declaration of Joseph Margulies, attached to Plaintiff’s Application for Temporary Restraining Order, United States District Court for the District of Columbia, Civil Action 02-CV-1130, November 24, 2004. According to The New Yorker, “Hossam el Hamalawy said that Egyptian security forces train German shepherds for police work, and that other prisoners have also been threatened with rape by trained dogs, although he knows of no one who has been assaulted this way.” Jane Mayer, “Outsourcing Torture,” New Yorker, February 14, 2005, p. 118. Dr. Hajib Al-Naumi, Qatar’s former justice minister, told the Australian television program “Dateline” that according to reports from contacts of his in Egypt, Habib “was in fact tortured. He was interrogated in a way which a human cannot stand up…We were told that he - they rang the bell that he will die and somebody had to help him.” “The Trials of Mamdouh Habib,” Dateline. See also Natalie O'Brien, “Australians saw Habib tortured, says officer,” Sydney Morning Herald, February 13, 2011, http://www.smh.com.au/national/australians-saw-habib-tortured-says-officer-20110212-1aran.html?from=smh_sb (accessed June 15, 2011).

[89] Raymond Bonner, “Australian’s Long Path in US Antiterrorism Maze,” New York Times, January 29, 2005, http://www.nytimes.com/2005/01/29/international/29habib.html (accessed June 25, 2011).

[90] “Habib drops torture case against Government,” ABC News (Australia), January 8, 2011, http://www.abc.net.au/news/stories/2011/01/08/3108799.htm (accessed June 15, 2011).

[91] “Habib free to sue Government,” ABC News (Australia), February 25, 2010, http://www.abc.net.au/news/stories/2010/02/25/2830398.htm (accessed June 15, 2011).

[92] “Sweden Violated Torture Ban in CIA Rendition, Human Rights Watch news release, November 9, 2006, http://www.hrw.org/en/news/2006/11/09/sweden-violated-torture-ban-cia-rendition; ACLU, Biography of Plaintiff Ahmed Agiza, May 30, 2007,http://www.aclu.org/national-security/biography-plaintiff-ahmed-agiza (accessed June 15, 2011).

[93] “The Broken Promise,” Kalla Fakta, Swedish TV4, May 17, 2004, English transcript available from Human Rights Watch, http://hrw.org/english/docs/2004/05/17/sweden8620.htm; Craig Whitlock, “A Secret Deportation of Terror Suspects,” Washington Post, July 25, 2004, http://www.washingtonpost.com/wp-dyn/articles/A11976-2004Jul24.html (accessed June 25, 2011).

[94] Stephen Grey, "US Agents ‘Kidnapped Militant’ for Torture in Egypt," The Sunday Times, February 6, 2005, http://www.timesonline.co.uk/tol/news/world/article511059.ece, (accessed June 17, 2011).

[95] “Parla l'avvocato di Abu Omar ‘L'imam sarà liberato a giorni’,”La Republica, October 17, 2006, http://www.repubblica.it/2006/10/sezioni/cronaca/sismi-mancini6/abu-omar-presto-libero/abu-omar-presto-libero.html (accessed January 11, 2011).

[96] “First CIA rendition trial begins,” Guardian, June 8, 2007, http://www.guardian.co.uk/world/2007/jun/08/italy.usa (accessed January 11, 2011).

[97] Grey, “US Agents ‘Kidnapped Militant’ for Torture,” http://www.timesonline.co.uk/tol/news/world/article511059.ece.

[98] “Italy indicts 31 in alleged CIA kidnapping,” MSNBC, February 16, 2007, http://www.msnbc.msn.com/id/17184663/ns/world_news-terrorism/ (accessed January 11, 2011).

[99] “CIA agents guilty of Italy kidnap,” BBC News, November 4, 2009, http://news.bbc.co.uk/2/hi/europe/8343123.stm (accessed January 11, 2011).

[100] Colleen Barry, “Italy convicts Air Force O-6 in CIA kidnap case, Associated Press, November 4th, 2009, http://militarytimes.com/news/2009/11/airforce_italy_case_110409/ (accessed June 15, 2011); Nicole Winfield, “Italy Appeals Court Ups US Sentences in CIA Trial,” Associated Press, December 15, 2010, http://abcnews.go.com/International/wireStory?id=12402877&page=1 (accessed June 15, 2011).

[101] “Italian Judge Convicts 23 in CIA Kidnap Case,” Associated Press, April 11, 2009, http://www.msnbc.msn.com/id/33620676/ns/world_news-europe/t/italian-judge-convicts-cia-kidnap-case/ (accessed June 23, 2011).

[102] As in Arar’s case, Zammar was technically a dual citizen because Damascus does not allow those born in Syria to renounce their citizenship.

[103]Peter Finn, “Al Qaeda Recruiter Reportedly Tortured,” Washington Post, January 31, 2003, http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A3684-2003Jan30&notFound=true (accessed June 25, 2011).

[104] Douglas Frantz, “War of Secrets: Sharing Information; Learning to Spy with Allies,” New York Times, September 8, 2002, http://www.nytimes.com/2002/09/08/weekinreview/war-of-secrets-sharing-information-learning-to-spy-with-allies.html; John Crewsdon, “Bid for New Witness Could Slow Plot Trial,” Chicago Tribune, January 29, 2003, http://articles.chicagotribune.com/2003-01-29/news/0301290341_1_mohammed-haydar-zammar-ramzi-binalshibh-mounir-el-motassadeq (both accessed June 25, 2011).

[105]Peter Finn, “Al Qaeda Recruiter Reportedly Tortured,” http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A3684-2003Jan30&notFound=true.

[106] See Amnesty International, “Syria: Syrian German Held Three Years Without Charge in Rat-Infested Syrian ‘Tomb,’” October 7, 2004, http://www.amnesty.org/en/library/asset/MDE24/066/2004/en/c53b2335-d575-11dd-bb24-1fb85fe8fa05/mde240662004ar.html (accessed June 16, 2011).

[107] Mitch Frank, “Help From an Unlikely Ally,” Time Magazine, July 1, 2002, http://www.time.com/time/magazine/article/0,9171,1002753,00.html (accessed June 25, 2011). The Daily Telegraph and The Washington Post also reported that US agents were telling Syrian interrogators what questions to ask Zammar; David Rennie and Toby Helm, “Syrians Reveal Secret Help in al-Qa’eda Hunt,” June 20, 2002, http://www.telegraph.co.uk/news/worldnews/middleeast/syria/1397842/Syrians-reveal-secret-help-in-al-Qaeda-hunt.html (“American agents had been allowed to submit written questions to Zammar and had received a steady flow of information in return”); Glenn Kessler, “U.S.-Syria Relations Not Quite as Cold,” Washington Post, June 20, 2002, http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A13898-2002Jun19&notFound=true (both accessed June 25, 2011)(“While US officials have not been able to question Zammar, Americans have submitted questions to the Syrians”); Howard Schneider, “Syria Evolves as Anti-Terror Ally,” The Washington Post, July 25, 2002 (“it is unclear whether US officials are being allowed to question [Zammar] in person or merely pose questions through Syrian interrogators”).

[108] Rajiv Chandrasekaran and Peter Finn, “U.S. Behind Secret Transfer of Terror Suspects,” Washington Post, March 11, 2002.


[110] Jane Perlez, Raymond Bonner and Salman Masood, “An Ex-Detainee of the U.S. Describes a 6-Year Ordeal,” New York Times, January 5, 2009, http://www.nytimes.com/2009/01/06/world/asia/06iqbal.html (accessed January 11, 2011). It should be noted that The New York Times states that “[m]uch of Mr. Iqbal’s account could not be independently corroborated.”

[111] Daniel McGory, “Ghost Prisoners Haunt Terrorism Hunt,” The London Times, September 11, 2004.

[112] Perlez, Bonner, and Masood, “An Ex-Detainee of the U.S. Describes a 6-Year Ordeal,”http://www.nytimes.com/2009/01/06/world/asia/06iqbal.html.

[113] US Department of Defense, “List of detainees who went through complete CSRT process,” undated, http://ensmp.net/2006/04/21/guantanamo_detainees.html (accessed June 15, 2011).

[114] “Summarized Unsworn Detainee Statement,” ISN# 743, Combatant Status Review Tribunal Transcripts, undated, http://projects.nytimes.com/guantanamo/detainees/743-muhammad-saad-iqbal/documents/4 (accessed June 15, 2011), p.10.

[115] Perlez, Bonner, and Masood, “An Ex-Detainee of the U.S. Describes a 6-Year Ordeal,”http://www.nytimes.com/2009/01/06/world/asia/06iqbal.html.

[116]See Human Rights Watch, Guantanamo: Detainee Accounts, October 2004, http://www.hrw.org/backgrounder/usa/gitmo1004; Center for Constitutional Rights (CCR), Detention in Afghanistan and Guantanamo Bay: Statement of Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed, August 4, 2004, http://ccrjustice.org/v2/legal/september_11th/docs/Guantanamo_composite_statement_FINAL.pdf (accessed June 15, 2011).

[117]Paisley Dodds, "Guantanamo Tapes Show Teams Punching, Stripping Prisoners," Associated Press, February 1, 2005.

[118]See Human Rights Watch, Guantanamo: Detainee Accounts, http://www.hrw.org/backgrounder/usa/gitmo1004/; CCR, Detention in Afghanistan and Guantanamo Bay, http://ccrjustice.org/v2/legal/september_11th/docs/Guantanamo_composite_statement_FINAL.pdf. See alsoUS Department of Justice Office of the Inspector General, “A Review of the FBI’s Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan and Iraq,” May 2008, http://www.justice.gov/oig/special/s0805/final.pdf (accessed June 21, 2011) (“DOJ I-G Report”). Solitary confinement is discussed in this report in chapter 8, section II (F), and chapter 5 in relation to al-Qahtani, particularly at p. 81. See also Army Brig. Gen. John Furlow and Air Force Lt. Gen. Randall M. Schmidt, “Army Regulation 15-6: Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility,” April 1, 2005 (amended June 9, 2005), http://www.defense.gov/news/Jul2005/d20050714report.pdf (accessed June 21, 2011) (“Schmidt-Furlow Report”).

[119] See for example, detainee abuse cases outlined in Maj. Gen. Antonio M. Taguba, Department of the Army, “Article 15-6 Investigation of the 800th Military Police Brigade,” May 2004, http://www.aclu.org/torturefoia/released/TR3.pdf, (accessed June 14, 2011) (“Taguba Report”), annex 26; Maj. Gen. George R. Fay, Department of the Army, “AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade,” and LTG Anthony R. Jones, Department of the Army, “AR 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade,” August 23, 2004, http://www.defense.gov/news/aug2004/d20040825fay.pdf (accessed June 21, 2011) (“Fay/Jones Report”). See also Human Rights Watch, Human Rights First, New York University Center for Human Rights and Global Justice, By the Numbers: Findings of the Detainee Abuse and Accountability Project, April 25, 2006, http://www.hrw.org/en/reports/2006/04/25/numbers-0.

[120] One example is the beating and suffocation death of a 56-year-old former Iraqi general named Abed Hamed Mowhoush at a base near the Syrian border in November 2003. See Army Criminal Investigation Command documents and Autopsy Examination Reports and Death Certificate, obtained under the Freedom of Information Act by the ACLU and other organizations, http://www.aclu.org/torturefoia/released/041905/m001_203.pdf (accessed June 15, 2011), pp. 93-100; Arthur Kane, “Iraqi General Beaten 2 Days Before Death,” Denver Post, April 5, 2005; “Guardsman: CIA beat Iraqis with hammer handles,” Denver Post, July 25, 2005; Josh White, “US Army Officer Convicted in Death of Iraqi Detainee,” Washington Post, January 23, 2006; and notes taken by Human Rights First during court martial, see "Welshofer In His Own Words," January 20, 2006 (on file with Human Rights First), excerpts posted by Human Rights First, https://secure.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed June 15, 2011).

[121] See Fay-Jones Report, http://www.defense.gov/news/aug2004/d20040825fay.pdf, p. 71 (sexual abuse of an Iraqi female detainee at Abu Ghraib in late 2003 by three soldiers in the 519th Military Intelligence Battalion). See also Department of the Army, “Commanders Report of Disciplinary or Administrative Action,” “Agent’s Investigation Report,” October 23, 2003, and “Agent Notes and Supplementary Documents from the Field File,” obtained and posted by the ACLU, http://www.aclu.org/torturefoia/released/22TFa.pdf and http://www.aclu.org/torturefoia/released/22TFb.pdf (both accessed June 15, 2011). See also, Elise Ackerman, “Abu Ghraib Interrogators Involved in Afghan Case,” Knight Ridder, August 22, 2004. Another case of sexual abuse involved a military contractor abusing an Iraqi minor: see the Taguba Report, http://www.aclu.org/torturefoia/released/TR3.pdf, annex 26; and records of Army criminal investigators, May – July, 2004, obtained and posted by the ACLU and others under FOIA litigation, http://www.aclu.org/torturefoia/released/FBI.121504.4311.pdf and http://www.aclu.org/torturefoia/released/294_334.pdf (both accessed June 15, 2011).

[122] For instance, in April 2003 a Marine in the 3rd Battalion, 5th Marine Regiment in Iraq was alleged to have mock executed four Iraqi juveniles by forcing them to kneel next to a ditch while the Marine fired his weapon to simulate an execution. See United States Marine Corps, “USMC Alleged Detainee Abuse Cases Since 11 Sep 01,” August 5, 2004, at http://www.aclu.org/torturefoia/released/navy3740.3749.pdf (accessed June 15, 2011). The Marine was later put before a court martial and found guilty of cruelty and maltreatment and sentenced to 30 days of hard labor without confinement, and a fine of $1,056. For a similar case involving an Army soldier mock executing an Iraqi in January 2004, see Department of the Army Criminal Investigation Division, “CID Report of Investigation,” January 30, 2004, http://www.aclu.org/torturefoia/released/28TF.pdf (accessed June 15, 2011).

[123] In April 2004, three Marines in the 2nd Battalion, 2nd Marine Regiment in Iraq allegedly shocked a detainee “with an electric transformer” during an interrogation. A Marine witness stated that one of the three Marines “held the wires against the shoulder area of the detainee and that the detainee ‘danced’ as he was shocked,” a second Marine operated the transformer, and a third guarded the detainee. See USMC, “Alleged Detainee Abuse Cases,” http://www.aclu.org/torturefoia/released/navy3740.3749.pdf, p. 3. After court-martial, the first Marine was given one year of confinement; the second received eight months, and the third soldier 60 days.

[124] See Human Rights Watch, “No Blood, No Foul”: Soldiers’ Accounts of Detainee Abuse in Iraq, July 22, 2006, http://www.hrw.org/en/reports/2006/07/22/no-blood-no-foul. Many of allegations contained in the 2006 report were confirmed in documents released to the ACLU and other organizations pursuant to Freedom of Information Act litigation. Human Rights Watch also confirmed abuses with veterans and government officials.

[125] See Memorandum from Vice Adm. Lowell E. Jacoby to Undersecretary of Defense for Intelligence [Stephen A. Cambone], regarding “Alleged Detainee Abuse by TF 6-26 Personnel,” June 25, 2004, http://www.aclu.org/torturefoia/released/t2596_0297.pdf (accessed June 15, 2011). See also sworn statement of an Army interrogator (name redacted) in the 1st Engineer Battalion, 3rd Combat Support Brigade, 95th Division, attached to the 519th Military Intelligence Battalion, http://www.aclu.org/torturefoia/released/030905/DOD565_615.pdf, p. DOD 589; sworn statement of a lieutenant colonel (name redacted) in the 115th Military Police Battalion, at http://www.aclu.org/torturefoia/released/030905/DOD780_821.pdf, p. DOD 812; sworn statement of a soldier in the 321st Military Intelligence Battalion, originally in the classified annex of the Fay-Jones report, at: http://www.aclu.org/torturefoia/released/030905/DOD452_517.pdf (p. DOD 508-514); email communication, redacted FBI sender and recipient, regarding “TF 6-26 Update,” June 25, 2004, http://www.aclu.org/torturefoia/released/FBI.121504.4887.pdf; unknown DIA interrogator (name redacted), “Memorandum For Record: Report of Violations of The Geneva Conventions and the International Laws of Land Warfare,” June 10, 2004, http://www.aclu.org/projects/foiasearch/pdf/DODDIA000172.pdf; various investigation files from Army Criminal Investigative Command, Baghdad, Iraq, http://www.aclu.org/torturefoia/released/030705/9117_9134.pdf and http://www.aclu.org/torturefoia/released/030705/9135_9166.pdf (all accessed June 15, 2011). See also Eric Schmitt and Carolyn Marshall, “In Secret Unit’s ‘Black Room’ a Grim Portrait of US Abuse,” New York Times, March 19, 2006, http://www.nytimes.com/2006/03/19/international/middleeast/19abuse.html (accessed June 25, 2011); Josh White, “US Generals in Iraq Were Told of Abuse Early, Inquiry Finds,” Washington Post, December 1, 2004, http://www.washingtonpost.com/ac2/wp-dyn/A23372-2004Nov30?language=printer (accessed June 25, 2011).

[126] “The sequence went like this. I received a proposal from the commander in charge of Guantanamo Bay, to permit a series of techniques to be used for interrogation.” Donald Rumsfeld, interview by David Frost, BBC Breakfast with Frost, BBC News, June 27, 2004, transcript at http://news.bbc.co.uk/2/hi/programmes/breakfast_with_frost/3844047.stm (accessed June 15, 2011).

[127] Philippe Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values (New York: Palgrave Macmillan, 2008).

[128] SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. 6. The SERE techniques are described above in “The Case of Abu Zubaydah.”

[129] SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, pp. 8-11.

[130] These JPRA trainings were in addition to other trainings provided to the CIA, discussed above.

[131] This document was also given to the CIA and OLC when they were drafting the Bybee Memo. See Second Bybee Memo, http://image.guardian.co.uk/sys-files/Guardian/documents/2009/04/16/bybee_to_rizzo_memo.pdf, citing memoranda provided by JPRA personnel. See also SASC report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. xv, stating that JPRA provided “another government agency” with the “same information.”

[132] SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. xv.

[133] Ibid., pp. 43–49.

[134] Accounts of this visit are recounted in various reports and books, including the SASC Report, p. 49; Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W. W. Norton, 2007); and Mayer, The Dark Side, p.198.

[135] This was the view of military lawyer Lt. Col. Diane Beaver, in Mayer, The Dark Side, p. 198.

[136] Sands, Torture Team, p. 76.

[137] Memorandum from LTC Diane Beaver for Commander, Joint Task Force 170, regarding “Legal Brief on Proposed Counter Resistance Strategies,” October 11, 2002, http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdf (accessed June 26, 2011), PDF p. 7-13. Beaver, who had no background in international law and no access to a proper law library later told Philippe Sands that she expected that other attorneys would review and augment her analysis and that “it never occurred to her that on so important an issue she would be the one writing the decisive legal advice.” Sands, Torture Team, p. 77. Additional analysis did not occur, however, and Beaver’s memorandum was among the documents given to Rumsfeld.

[138] See Col. Brittain Mallow, CITF commander, interview by Washington Media Associates, Torturing Democracy Project, September 21, 2007, http://www.gwu.edu/~nsarchiv/torturingdemocracy/interviews/brittain_mallow.html (accessed June 15, 2011).

[139] See SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, pp. 84-86.

[140] Ibid., p. 85.

[141] DOJ I-G Report, http://www.justice.gov/oig/special/s0805/final.pdf, p. 104. See also various sworn statements of FBI special agents to Brig. Gen. John Furlow, January 20, 2005, attached as annexes to the Schmidt-Furlow Report , http://www.aclu.org/torturefoia/legaldocuments/july_docs/(M)%20SCHMIDT-FURLOW%20DEFERRED.pdf (accessed June 15, 2011).

[142] Memorandum from William J. Haynes, II, general counsel, to secretary of defense, regarding “Counter-Resistance Techniques,” (with attachments), November 27, 2002, approved December 2, 2002, http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdf (accessed June 15, 2011).

[143] Memorandum from LTC Jerald Phifer to commander, Joint Task Force 170, regarding “Request for Approval of Counter-Resistance Strategies,” October 11, 2002, attached to Memorandum from Haynes to secretary of defense, “Counter-Resistance Techniques,” http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdf.

[144] Memorandum from Haynes to secretary of defense, “Counter-Resistance Techniques,” (with attachments), http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdf.

[145] Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War (1949) (Third Geneva Convention) states: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” Geneva Convention Relative to the Treatment of Prisoners of War, adopted August 12, 1949, 75 U.N.T.S. 135, entered into force October 21, 1950, http://www1.umn.edu/humanrts/instree/y3gctpw.htm (accessed June 27, 2011).

[146] Common article 3 to the 1949 Geneva Conventions prohibits, “at any time and in any place whatsoever,” violence to life and person of those in custody, cruel treatment and torture, and outrages upon personal dignity, in particular humiliating and degrading treatment. See also, article 31 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) which prohibits “physical or moral coercion” against protected persons (i.e. non-POW detainees), and article 27 states that civilian detainees must “at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.” Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted  August 12, 1949, 75 U.N.T.S. 287, entered into force October 21, 1950. Article 17 of the Third Geneva Convention states, “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.”

[147] Navy instructors from the Brunswick SERE school traveled to Guantanamo and conducted trainings for interrogators there in late December 2002, SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. 103.

[148] The account in this paragraph is based on the SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, pp. 106-107, citing Memorandum from Alberto Mora to the Inspector General of the Department of the Navy, “Statement for the Record: Office Of General Counsel Involvement in Interrogation Issues,” July 7, 2004, http://www.newyorker.com/images/pdf/2006/02/27/moramemo.pdf  (accessed June 26, 2011) ( “Mora Statement for the Record”). See also Washington Media Associates Interview with Alberto Mora, September 17, 2007, http://www.gwu.edu/~nsarchiv/torturingdemocracy/interviews/alberto_mora.html (accessed June 15, 2011).

[149] Mora Statement for the Record, http://www.newyorker.com/images/pdf/2006/02/27/moramemo.pdf, pp. 13-14. See also SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. 107.

[150] SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. 107. Italics in original.

[151] Ibid., p. xxi. Rather than discard the techniques entirely, however, Rumsfeld ordered that any use of the harsher categories of techniques be approved by him personally, thus suggesting that he continued to consider them legitimate: “Should you determine that particular techniques in either of these categories are warranted in an individual case, you should forward that request to me. Such a request should include a thorough justification for the use of such techniques.” Memorandum from Donald Rumsfeld to Commander US, Southern Command, regarding "Counter-Resistance Techniques," January 15, 2003, http://www.washingtonpost.com/wp-srv/nation/documents/011503rumsfeld.pdf (accessed June 15, 2011).

[152] Memorandum from Donald Rumsfeld, secretary of defense, to [James T. Hill,] Commander, US Southern Command, regarding "Counter-Resistance Techniques in the War on Terrorism," April 16, 2003. The memorandum can be found in Karen J. Greenberg and Joshua L. Dratel, ed., The Torture Papers, p. 360. Rumsfeld added, however, that "If, in your view, you require additional interrogation techniques for a particular detainee, you should provide me, via the Chairman of the Joint Chiefs of Staff, a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee." Ibid.

[153]SASC Report,http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. xxii.

[154] James R. Schlesinger, Department of Defense, “Final Report of the Independent Panel to Review DoD Detention Operations,” August 24, 2004, http://www.defense.gov/news/Aug2004/d20040824finalreport.pdf (accessed June 21, 2011) (“Schlesinger Report”), p. 14. The report states that “Interrogators and lists of techniques circulated from Guantanamo and Afghanistan to Iraq,” p. 37. The report also makes this point on p. 14, stating that the confusion caused by the series of Rumsfeld directives from December 2002 through April 1, 2003 allowed abuse to spread: “changes in DoD interrogation policies between December 2, 2002 and April 16, 2003 were an element contributing to uncertainties in the field as to which techniques were authorized. At the operational level, in the absence of specific guidance from CENTCOM [Central Command], interrogators in Iraq relied on Field Manual FM 34-52 and on unauthorized techniques that had migrated from Afghanistan.” There are also suggestions that CIA military support operations may have “infected” military operations as well, see DOD I-G Report, http://www.justice.gov/oig/special/s0805/final.pdf, pp. 48, 49.

[155] Vice Adm. Albert T. Church, III, US Department of Defense, “Review of Department of Defense interrogation operations – Executive Summary,” US Department of Defense, undated, http://www.defense.gov/news/mar2005/d20050310exe.pdf (accessed June 21, 2011) (“Church Report”), p. 6.

[156] Ibid, pp. 6-7.

[157] DOD I-G Report, http://www.justice.gov/oig/special/s0805/final.pdf, pp. 26 - 28.

[158] See SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, pp. 153-154.

[159] See Department of Defense Inspector General, “Review of DoD-Directed Investigations of Detainee Abuse,” Report No. 06-INTEL-10, August 25, 2006, http://www.fas.org/irp/agency/dod/abuse.pdf (accessed June 25, 2011), p. 16. See also SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. 158 (citing classified portions of the Church report). The SASC report explained: “Specifically, in February 2003, prior to the invasion of Iraq in March, the SMU Task Force designated for operations in Iraq obtained a copy of the interrogation SOP in use by the SMU personnel in Afghanistan, changed the letterhead, and adopted the SOP verbatim.” It should be noted that around the same time, late 2003, JPRA personnel were ordered to Iraq to help train interrogators there in mock interrogation methods, just as they had earlier trained CIA personnel, and personnel deployed at Guantanamo and in Afghanistan.

[160] Memorandum from Captain Carolyn Wood to C2X, JTF-7 (Iraq), “Abu Ghraib Saddam Fedayeen Interrogation Facility (SFIF) Detainee Interrogation Policy,”July 26, 2003, quoted in SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. 159-60. One motivation for drafting the policy, she later admitted, was that interrogators under her command had come from a variety of other sites, including Guantanamo and Afghanistan, where they had been authorized to use more abusive techniques than allowed under the baseline Army Field Manual, and that interrogators wished to use the more permissive techniques in Iraq.In order to use those similar techniques from GTMO and Afghanistan in Iraq, we sought approval from the higher command,” she told investigators. Sworn Statement of Capt. Carolyn Wood, December 17, 2004, quoted in SASC Report, p. 166. The SASC report added that Commander Gen. Ricardo Sanchez stated that a “key purpose of his eventually issuing an interrogation policy was to regulate approach techniques believed derived, in part, from techniques used in Guantanamo Bay and Afghanistan. Statement by LTG Ricardo Sanchez to the Department of the Army Inspector General, October 2004, quoted in SASC report, p. 198.

[161] Ibid., p. 166.

[162] On August 14, 2003, Capt. William Ponce, a more senior intelligence officer, sent out an email to subordinate intelligence units (both Capt. Wood’s and others) requesting that they submit their “interrogation techniques wish lists.” Ponce wrote: “Immediately seek input from interrogation elements (Division/Corps) concerning what their special interrogation knowledge base is and more importantly, what techniques would they feel would be effective techniques that SJA could review (basically provide a list). . . . The gloves are coming off gentleman regarding these detainees. Col. Boltz has made it clear that we want these individuals broken. Casualties are mounting and we need to start gathering info to help protect our fellow soldiers from any further attacks.” Email communication from Capt. William Ponce, Jr. to CS165MI, HECC, August 14, 2003, quoted in SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, pp. 167-8.

[163] Memorandum from Cpt. Carolyn Wood, “SFIF Detainee Interrogation Policy,” quoted in SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. 169. According to the SASC Report, p. 169, Wood resubmitted her request because her superiors had made it clear that they “want[ed] these guys broken” and said that her August submission may have been a response the “gloves are coming off” e-mail from Capt. Ponce.

[164] CJTF-7 Interrogation and Counter-Resistance Policy, cited in SASC report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, pp. 201-2.