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DOJ Office of Professional Responsibility Report: Investigation into the OLC's Memoranda Concerning Issues Relating to the CIA's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists

July 29, 2009 | OPR | ACLU-RDI 5022

The DOJ's Office of Professional Responsibility (OPR) released this report investigating whether Department of Justice attorneys violated their ethical obligations in issuing several memoranda authorizing the use of Enhanced Interrogation Techniques (EITs) on suspected terrorists outside of the United States. These materials included an August 1, 2002 memorandum drafted by then Assistant Attorney General Jay S. Bybee of the DOJ's Office of Legal Counsel (OLC) and then Deputy Assistant Attorney General John Yoo (the Bybee Memo) that analyzed a criminal statute prohibiting torture (18 U.S.C. §§ 2340-2340A), concluding that, among other things, torture "covers only extreme acts" and that "even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability." The OPR Report also examined a second, classified memorandum (dated August 1, 2002) accompanying the Bybee Memo which the OPR learned of during its investigation, as well as a classified memorandum addressed to the Department of Defense relating to the military interrogation of unlawful combatants held outside the U.S. (March 14, 2003) (the Yoo Memo). The OPR Report concluded that the Bybee and Yoo Memos "contained seriously flawed arguments and that they did not constitute thorough, objective or candid legal advice," accusing both attorneys of professional misconduct and announcing its intent to refer its finding to state bar disciplinary authorities. The Report faulted the unclassified Bybee Memo for its "[i]nconsisten[cy] with the [p]rofessional [s]tandards [a]pplicable to Department of Justice [a]ttorneys," the classified Bybee Memo for its flawed justification for EIT application (in particular its provisions concerning water torture, sleep deprivation, and stress positions), and the Yoo Memo for its violation of the Convention Against Torture (CAT) and for its incomplete analysis of the ICC Treaty. Associate Deputy Attorney General David Margolis later reviewed the OPR Report, and in a memorandum dated January 5, 2010 rejected the OPR Report's conclusion on the grounds that the OPR did not show that "professional misconduct" in this case depended on the "application of a known, unambiguous obligation or standard to the attorney's conduct." Nonetheless, Margolis found that Yoo and Bybee "exercised poor judgment by overstating the certainty of their conclusions and underexposing countervailing arguments."

This report was originally released on February 19, 2010.  On July 19, 2010, the government released slightly less-redacted versions of 7 of the pages in the report.  This version of the report incorporates those 7 pages (here is an annotated version). The 7 pages are: 72, 110–11, 113–14, 123, and 126.

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AUTHORING AGENCIES:
INCIDENTS OF ABUSE MENTIONED:
  • 2002-11-15
    • According to a CIA OIG Report cited in this OPR release, on November 15, 2002, Abd Al-Rahim Al-Nashiri was brought to a CIA black site where psychologist/interrogators immediately initiated use of EITs. On the twelfth day at this location, the Report noted that psychologist/interrogators used the waterboard twice without success, while the application of other EITs continued. The Report also described the use of a series of unauthorized techniques used on Al-Nashiri simultaneous with EIT application. It recounted an incident near the end of December in which a debriefer attempted to frighten Al-Nashiri by cocking an unloaded pistol near the detainee's head while he was shackled in a sitting position in his cell. On what was perhaps the same day, the Report continued, the prisoner was required to stand in his cell naked and hooked while the debriefer operated a power drill, with the implicit threat of using it on Al-Nashiri. The Report found that on a separate occasion in December 2002, a debriefer confronted Al-Nashiri with the threat that his mother and family would be brought to the interrogation facility if he did not talk. The Report also mentioned other occasions in which a CIA debriefer blew cigar smoke in Al-Nashiri's face, manhandled him while he was tied in stress positions, and stood on his shackles to cause pain. The aforementioned applications of unauthorized techniques were confirmed to the CIA OIG by the CIA's Deputy Director of Operations in January 2003. The DOJ was notified on January 24, 2003.
  • 2003-03-01
    • A CIA OIG Report cited in the OPR release indicated that Khalid Sheik Muhammed was captured in Pakistan on March 1, 2003, taken to a CIA black site, and subject to EITs. The Report alleged that Muhammed underwent roughly 183 applications of the waterboard. The Report also found that on one occasion, a CIA psychologist/interrogator threatened the prisoner by stating that, "if anything else happens in the United States, 'We're going to kill your children.'"
  • Unknown date
    • The OPR release cites a CIA-OIG Report detailing the use of EITs on Abu Zubaydah. That report followed the examination of 92 videotapes taken during Abu Zubaydah's interrogation sessions at an unnamed CIA detention facility. Twelve of those 92 videotapes documented the use of EITs on Abu Zubaydah, including 83 applications of the waterboard, most of which lasted less than ten seconds. According to the CIA OIG Report, one of the videos documented an interrogator verbally threatening Abu Zubaydah by announcing, "If one child dies in America, and I find out you knew something about it, I will personally cut your mother's throat." The Report stated that the use of the waterboard was temporarily discontinued after the on-site interrogation team concluded that Abu Zubaydah had ceased his resistance to interrogation, though it was resumed when Senior CIA officials heeded a CTC suggestion that he was still withholding information. The CIA OIG Report found that the method of waterboarding used on Abu Zubaydah in the tapes was different from the one described in the SERE training and the Classified Bybee Memo; in this case, the CIA interrogators continuously applied large amounts of water to the detainee's mouth and nose, while the method outlined in the DOJ memorandum involved a damp cloth and small volumes of water. A psychologist involved in the interrogation program allegedly informed the CIA OIG that the distinct method of waterboarding practiced in Abu Zubaydah's case was "for real" and thus more "poignant and convincing."
  • Unknown date
    • A DOJ OIG Report cited by the OPR release reported that Mohammed Al-Khatani ("Al-Qahtani" in the Report) was one of the military detainees subjected to aggressive techniques despite the objections of the FBI.
  • Unknown date
    • The OPR release cites a CIA finding that by 2005, approximately thirty detainees had been subjected to EIT administration.
  • Unknown date
    • The OPR Report cites a September 8, 2006 report of the Senate Select Committee on Intelligence on "Postwar Findings About Iraq's WMD Programs and Links to Terrorism and How They Compare with Prewar Assessments" (SSCI Report), which found that the CIA "relied heavily on the information obtained [in 2002] from the debriefing of detainee Ibn al-Shaykh al-Libi, a senior al-Qa'ida operational planner, to assess Iraq's potential [chemical and biological weapons] training of al-Qa'ida." The SSCI Report continued that Al-Libi offered said information in 2004 and claimed that, after having been harshly treated by CIA debriefers, he "decided he would fabricate any information the interrogators wanted in order to gain better treatment and avoid being handed over to [a foreign government]." He was transferred to a foreign government's custody and reportedly subjected to threats and harsh physical treatment. He stated later that he continued to fabricate information in order to prevent harsh treatment, the Report indicated.