We have recently learned that although waterboarding was initially described as "harmless" by the CIA, between 2002 and 2005 the CIA changed their waterboarding rules to require a medical doctor and a tracheotomy kit (surgical tools to establish an emergency airway) be present for all waterboarding.
Having an MD and surgical tools present is a degree of medical attention higher than an intensive care unit (ICU) in a US hospital. Below I explore what happened to make the CIA realize that waterboarding was far from harmless, and in fact caused a response that would result in "permanent and serious physical damage in the absence of immediate medical treatment." Because the Bush Administration reasoned that waterboarding was not torture (it "inflicts no pain or actual harm whatsoever"), it is critical to understand when and how the CIA knew that waterboarding could kill.
The OLC gave the CIA Approval in 2002 for "harmless" waterboarding.
Two August 1, 2002 memos authored by John Yoo on behalf of Jay Bybee established the OLC definition of torture and gave approval for waterboarding. The ""2002 Techniques Memo" (PDF)" described waterboarding as harmless.
Coupled with this description of waterboarding as harmless, the ""2002 Torture Definition Memo" (PDF)" held that a technique would only be torture if it caused severe harm:
They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that to constitute torture 'severe pain' must rise to a similarly high level -- the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.
Thus the OLC definition of torture from August 1, 2002 until it was withdrawn by Jack Goldsmith in June 2004, considered torture to be what happens when, but for medical intervention, a technique causes death, organ failure, or serious impairment of body functions.
The Waterboarding Began With Tapes Rolling
The CIA waterboarded Abu Zubaydah "at least 83 times during August 2002". In November 2002 the CIA acquired the alleged USS Cole mastermind, Abd al Rahim al Nashiri, from Dubai, and used the waterboard on him at least 2 times. The CIA recorded (PDF) 90 videotapes of interrogation sessions with Abu Zubaydah and 2 tapes of sessions with al-Nashiri in 2002. A heavily redacted description (PDF) of the videotapes notes the tapes captured 12 [enhanced interrogation sessions] including the waterboarding of al-Nashiri. The taping stopped in 2002. Although initial reporting by Mark Mazetti suggested that Two of the 90 videotapes were destroyed in 2005, later reporting indicated that all the tapes were destroyed together. Regardless, destruction of the videotape of the two detainees who were waterboarded suggests cover-up:
They were destroyed in part because officers were concerned that tapes documenting controversial interrogation methods could expose agency officials to greater risk of legal jeopardy, several officials said.
What was on the tapes?
I am convinced that the videotapes captured events that "shocked the conscience" that occurred during the waterboarding of Abu Zubaydah in August 2002 and al-Nashiri in December 2002. This conclusion is supported by important evidence that one or more major "ADVERSE EVENTS" occurred in the CIA enhanced interrogation program before January 1, 2003:
Timing
- Robert Mueller ordered FBI agents to withdraw from Zubaydah interrogation because he thought enhanced techniques were illegal. This is consistent with FBI agents witnessing "ADVERSE EVENTS" in the waterboarding of Zubaydah, August 2002.
- The CIA totally stopped videotaping after December 2002 and the CIA allegedly told the Chair and Vice Chair of the SSIC they wanted to destroy videotapes in February 2003. This is consistent with "ADVERSE EVENTS" on videotapes (through December 2002).
- "Interrogation Guidelines"- The CIA changed the rules for interrogation in January 2003, and two memos, both dated January 28, 2003, memorialize the changes. The first Memo signed by George Tenet is heavily redacted, but part of its title and its contents are referenced in the recently released 2005 Memo from Stephen Bradbury ("2005 Bradbury Memo" (PDF)):
If the plan calls for the use of any of the interrogation techniques discussed herein [enhanced interrogation techniques], it is submitted to CIA Headquarters, which must review the plan and approve the use of any of these interrogation techniques before they may be applied. See George J. Tenet Director of Central Intelligence Guidelines on Interrogations Conducted Pursuant to the [redacted] (Jan 28, 2003) ("Interrogation Guidelines")
. This rule change suggests a CIA response to "ADVERSE EVENTS" that occurred prior to January 2003.
- "Confinement Guidelines"- The Second Tenet Memo of January 28, 2003 is also cited in the "2005 Bradbury Memo" (PDF), and has not yet been released, even in redacted form. This memo, Guidelines on Confinement Conditions for CIA Detainees (Jan. 28,2003) ("Confinement Guidelines") may require medical personnel at CIA interrogation facilities, as it is cited after this paragraph:
Medical and psychological personnel are on-scene throughout (and,as detailed below, physically present or otherwise observing during the applicatlon of many techniques; including all techniques involving physical contact with detainees), and "[d)aily physical and
psychological evaluations are continued throughout the period of [enhanced interrogation technique] use"
Together with the Interrogation Guidelines memo of the same date, this memo indicates major internal changes to the CIA program in January 2003, likely in response to "ADVERSE EVENTS" from December 2002 or before.
- In January, 2003, the CIA Office of Inspector General initiated "a special review" of the CIA terrorist detention and interrogation program. Although the CIA stated that the review was not initiated in response to an allegation of wrongdoing, the timing suggests this may have been coincident with unrest in the intelligence community over enhanced techniques employed before January 2003.
Evidence that the "ADVERSE EVENTS" occurred during waterboarding of Zubaydah and al-Nashiri
The sequence of waterboarding was:
Abu Zubaydah- 83 times in August 2002
al-Nashiri- at least 2 times in November-December 2002
Khalid Sheik Mohammed (KSM)- 183 times in March 2003
- The only high-value detainees in custody before January 2003 were Zubaydah, Binalshib and al-Nashiri, of whom only Zubaydah and al-Nashiri were waterboarded. Videotapes of Zubaydah and al Nashiri tapes were destroyed, implicating adverse events in interrogations of both men.
- A heavily censored footnote on page 15 of the "2005 Bradbury Memo" (PDF) discusses what appears to be a near-death episode excerpted from the still-secret CIA Inspector General report:
In our limited experience, extensive use of the waterboard can introduce new risks. Most seriously, for reasons of physical fatigue or psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness. An unresponsive subject should be righted immediately and the interrogator should deliver a sub-xyphoid thrust to expel the water. If this fails to restore normal breathing, aggressive medical intervention is required. Any subject who has reached this degree of compromise is not [censored hereafter].
Zubaydah and KSM are the only detainees known to undergo "extensive waterboarding" by the CIA, and KSM was waterboarded differently than Zubaydah (KSM had medical personnel in the room, see below). Indeed, Zubaydah is the only detainee who reported losing control of his bowel or bladder function or his consciousness during his interrogation. From the recently-leaked International Committee of the Red Cross report on "High Value" Detainees ("ICRC Report (PDF)"), Zubaydah described his interrogation including waterboarding:
On this occassion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled without success to breathe. 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.
<snip>
I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by a doctor.
Thus it appears the IG report footnote is referring to a waterboarding "ADVERSE EVENT" of Zubaydah that required resuscitative medical intervention.
- The CIA only waterboarded al-Nashiri two times. Considering that Zubaydah and KSM were together waterboarded 266 times, this low number for al-Nashiri is consistent with an "ADVERSE EVENT" in his waterboarding in December 2002, that made them reluctant to try again.
- They dramatically altered the protocol for waterboarding by March 2003. Specifically, The ICRC report description of the waterboarding of AZ and KSM is almost identical with the exception of one detail. KSM had a pulse oximeter (a device to measure blood oxygen levels) attached to his finger to measure the level of oxygen in his blood during waterboarding, and he noted that there was a doctor present in the room each time this procedure was used. This suggests that "ADVERSE EVENTS" in the experience of waterboarding Zubaydah or al-Nashiri led to this drastic change in protocol requiring close medical supervision.
- They stopped waterboarding after KSM in March 2003. This suggests they knew waterboarding was prone to "ADVERSE EVENTS".
- After Goldsmith withdrew the 2002 OLC memos in June 2004, the waterboarding was in legal limbo, and as such so were the actions of the waterboarders. A December 2004 memo from the CIA Office of Medical Services (OMS) [OMS Guidelines on Medical and Psychological Support to Detainee Rendition, Interrogation and Detention (Dec. 2004) ("OMS Guidelines")] is cited in the "2005 Bradbury Memo". These OMS guidelines require that a physician with emergency surgical tools be present while waterboarding takes place, in order to resuscitate the detainee should he suffocate. Thus it seems that the most problematic of the enhanced interrogation techniques was waterboarding, and the reason for this is that it could lead to death in the way that the CIA used it on Zubaydah and al-Nashiri.
Conclusion
- Before August 2002- The CIA told the OLC waterboarding was harmless.
- August 2002- In response, the OLC established a definition of torture that excluded "harmless" techniques.
- August 2002- The CIA waterboarded Zubaydah 83 times, to the point he "gave up", and required medical intervention.
- August 2002- The FBI withdraws agents from harsh interrogations.
- Nov/Dec 2002- The CIA started waterboarding al-Nashiri but stopped after 2 sessions, likely after he too almost drowned.
- December 2002- The CIA stopped videotaping interrogations when they realized they were recording torture.
- January 2003- Upset CIA agents, realizing non-harmless waterboarding fit the OLC definition of torture, stirred up the IG investigation and sparked the new January 28, 2003 guidelines requiring CIA headquarters permission and some medical precautions.
- February 2003- The CIA briefed a few select members of Congress, and almost certainly told them that waterboarding was harmless, consistent with the operational definition of torture and what OLC had approved.
- March 2003- The CIA waterboarded KSM, this time using medical personnel and a pulse oximeter to make sure he did not get asphyxiated (drowned) like his predecessors.
- June 2003 (and July 2004)- George Tenet gets Memos from the White House endorsing the harsh techniques the CIA was asked to use.getting retroactive permission for the enhanced interrogation techniques.
- By early 2004- Goldsmith and other OLC lawyers figured out that if the CIA is using advanced medical techniques to resuscitate during waterboarding, they are fitting the 2002 OLC definition of torture.
- June 2004- Jack Goldsmith pulls the 2002 opinions in the wake of Abu Ghraib.
- December 2004- OMS Guidelines published; They finally Consult CIA doctors, who tell them they need a Physician with a tracheotomy kit in the room to waterboard, ending the fantasy that waterboarding is harmless.
- Bradbury writes a new memo ("2005 Bradbury Memo" (PDF)), redefining torture and making it OK to use waterboarding, even though it can lead to death in the absence of medical and surgical intervention.
Sources Cited (PDFs)
8/1/02 ""2002 Techniques Memo""-Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee
8/1/02 ""2002 Torture Definition Memo"" Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency, From Jay S. Bybee
5/10/05 ""2005 Bradbury Memo"" Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency
"ICRC Report" International Committee of the Red Cross report on "High Value" Detainees, 2/14/07
Update:
The concept that there were two "special" CIA videotapes in an original version of this diary was based on the initial report by Mark Mazetti in the NY Times. Subsequent reporting indicated that the tapes may have been destroyed all at once.
Regardless, the destruction of videotape evidence is consistent with cover-up, and I have changed the body of the diary to reflect the more complete picture.
