Boxes and Burials in the CIA’s Torture Plans

In this post, I’m going to test a hypothesis that OLC may not have included “cramped confinement” in its torture plans until it removed “mock burial.” If I’m right, it means after having been told OLC would not approve mock burial, OLC and CIA instead just renamed what they were doing as “cramped confinement” so as to get it past those in DOJ who were opposed to allowing the US to use mock burial in its torture program.

This is a weedy post even by my standards. But the key points are:

  • Many of the discussions about which techniques OLC was approving appear to have taken place orally, not in written form
  • The one written document we know exists–a JPRA Physical Pressures document–was an attempt made during the key three days of the Bybee Memo process to pretend that JPRA sanctioned waterboarding (at least) as it either already had been used or would be used on Abu Zubaydah, rather than as the Navy used it in training
  • The section on small box confinement also seems to have been created in response to this process, meaning it is possible that JPRA adjusted both the name and the description of the technique to provide JPRA sanction for mock burial as it had been done on AZ

The OPR Report’s list of torture techniques is neither the original nor the final list of planned torture techniques

The OPR Report includes a list of torture techniques Mitchell and Jessen proposed to use with Abu Zubaydah that includes both cramped confinement and mock burial, which seems to suggest that the CIA tried to get both approved at once. But the OPR Report provides absolutely no explanation for the source or the date of its list (on PDF 41) of the torture techniques. It says simply:

The CIA psychologists eventually proposed the following twelve EITs to be used in the interrogation of Abu Zubaydah:

In addition to the use of the word “eventually” in this description, there’s further evidence this list is not the first incarnation of the torture techniques requested. That’s because this description of sleep deprivation…

Sleep deprivation: The subject is prevented from sleeping, not to exceed 11 days at a time;

Includes this footnote:

As initially proposed, sleep deprivation was to be induced by shackling the subject in a standing position, with his feet chained to a ring in the floor and his arms attached to a bar at head level, with very little room for movement.

Compare that with the description of sleep deprivation as it appears in the Bybee Two memo.

Sleep deprivation may be used. You have indicated that your purpose in using this technique is to reduce the individual’s ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate. The effect of sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction. You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted. [my emphasis]

The description in the OPR Report for this torture technique, at least, matches what appears in the Bybee Two memo.

Also note the admission (which I had never noticed before) that CIA had already subjected AZ to sleep deprivation but don’t worry, AZ was A-Okay as a result.

you have previously kept him awake for 72 hours

Though their admission to 72 hour sessions of sleep deprivation doesn’t accord with AZ’s memory of his first several weeks in the black site, which describe being kept awake for weeks at a time (perhaps 11 days?), using the shackling technique that OLC would go on to eliminate from their description of sleep deprivation:

I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next 2 to 3 weeks.


I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water on my face.

From all this we can make several educated assumptions about the list included in the OPR Report. First, it includes the torture techniques as ultimately incorporated in the torture memos; this is not the list that CIA first brought to OLC. Moreover, we know that the description of sleep deprivation, at least, was watered down to hide the most appalling aspects of the technique that, even though they weren’t described, had already taken place.

Oh, and they were probably lying about the one detail they admitted to, how long they had subjected AZ to sleep deprivation.

But we already knew that.

That said, we know the OPR Report’s list isn’t the final list, either. The OPR Report list still shows, in unredacted form, diapering as a technique. We have no idea when or why that we eliminated from the list. And we know the redacted 12th technique is mock burial, which was eliminated some time after July 24, 2002, though we don’t know when, specifically, that happened. Note that the description of that 12th technique–mock burial–continues onto PDF page 43, so the description of it may include more detail on how it was eliminated from the list.

In other words, at best, this is an interim list. The list may simply reflect the final form that each torture technique request had before it was either incorporated into the Bybee Two memo or eliminated from the list.

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Did DOJ “Lose” the Smoking Gun Torture Document?

You know what I find surprisingly absent from the OPR Report?

Any discussion of how–just days after potentially receiving a document making clear that SERE techniques were torture and that torture was not effective–John Yoo still authorized the use of torture in US interrogations.

Here are the last two paragraphs of that document:

(U) Another important aspect of the debate over the use of torture is the consideration of its potential impact on the safety of U.S. personnel captured by current and future adversaries. The unintended consequence of a U.S. policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured U.S. personnel. While this would have little impact on those regimes or organizations that already employ torture as a standard means of operating, it could serve as the critical impetus for those that are currently weighing the potential gains and risks associated with the torture of U.S. persons to accept torture as an acceptable option.

(U) CONCLUSION: The application of extreme physical and/or psychological duress (torture) has some serious operational deficits, most notably, the potential to result in unreliable information. This is not to say that the manipulation of the subject’s environment in an effort to dislocate their expectations and induce emotional responses is not effective. On the contrary, systematic manipulation ofthe subject’s environment is likely to result in a subject that can be exploited for intelligence information and other national strategic concerns. [my emphasis]

This document was written by JPRA–the people that administer the SERE program from which our torture program was purportedly reverse-engineered. It provides clear evidence that, on July 25, 2002, JPRA was aware of an ongoing debate over whether or not to use torture with prisoners in US custody. The document clearly states that torture leads to unreliable information. And the document calls these techniques “torture.”

You’d think, if there were proof Yoo had read it, that OPR would include some discussion of how JPRA’s expert opinion that this was torture should have affected Yoo’s own definition of torture (heck–JPRA’s language here would be more on point than the “organ failure” language that Yoo and Jennifer Koester used to define torture). You’d think, given the experts’ opinion that torture produced unreliable information, OPR would have challenged Yoo’s acceptance of the CIA’s claims that torture was the only way to get Abu Zubaydah to reveal the intelligence they claimed he had. You’d think OPR would ask Yoo why–given his reliance on the same JPRA experts to claim that waterboarding didn’t cause psychological harm–he chose to ignore this document from JPRA.

This document, in other words, ought to be a cornerstone of OPR’s analysis of Yoo’s failure to provide independent analysis and include all relevant information about what constituted torture. It ought to be used as proof that Yoo knew he was authorizing what the experts deemed to be torture.

If OPR had proof Yoo read this document, it would be the “smoking gun” that when he wrote the torture memo he knew he was deliberately authorizing torture.

But it’s not clear whether Yoo did read it. And it’s not clear that if he did, proof to that fact would still have been in OLC’s collection of torture documents by the time OPR got around to reviewing those documents.

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JPRA’s Advice Has Gone Missing

As I noted earlier, ACLU got a new Vaughn Index today, covering the OLC documents pertaining to CIA’s torture program.

But what ACLU really got is a long admission from Acting OLC head David Barron that OLC has lost ten or more of the documents included on a Vaughn Index provided in 2007.

And one of those documents–apparently referred to as Document 6 in both Vaughn Indices–is one of the packets of information JPRA provided to Jim Haynes and from there to OLC as back-up to the Bybee Two Memo (though note, given the date of July 25, this does not appear to be the document compiled urgently that described waterboarding).

The 2007 Index refers to the document as a 46-page document, dated July 25, 2002, providing legal advice. Yesterday’s Index refers to the document as a 59-page document, from and to the DOD, dated July 25, 2002, providing legal advice.

The page discrepancy, by itself is interesting (that is, if they don’t have the document, then how do they know that the original index listed the page numbers wrong?). 

And then there’s the fact that this document is missing. Some of these documents discussed SERE techniques as torture. In the SASC report, both Jim Haynes and John Rizzo were very squirmy about discussing how DOD advice to to OLC for CIA’s torture memos; if we had the document itself, we might be able to explain that definitively. And then there’s the possibility that someone took notes on this document.

But, if my reading of the two Vaughn Indices is correct, we can’t answer those questions. Because somehow, one of the key documents in the generation of the torture memos has just disappeared from a SCIF facility.

Haynes’ Multiple Choice Memos

Back in May, I wrote a post observing that when David Addington testified before the House Judiciary Committee, he seemed to be carefully choosing which August 1, 2002 Bybee Memo he answered questions about. For example, when Debbie Wasserman Schultz asks Addington whether he discussed torture methods described in the memo the Committee had been discussing (by context, the Bybee One memo), he response that that memo didn’t discuss torture methods.

Ms. WASSERMAN SCHULTZ. On any of the trips, did you discuss interrogation methods that were directly referenced in the memo that we have been discussing here for this hearing?

Mr. ADDINGTON. I am not sure I remember this memo having methods discussed in it, frankly. [my emphasis]

So he never answers a much more interesting question–whether he shared the Bybee Two memo–which did list torture methods–with those at Gitmo.

Curiously, Jim Haynes seems to be doing the same in the Questions for the Record following up on his testimony before the Senate Armed Services Committee.

36. Senator CLINTON. Mr. Haynes, do you recall when you received the August 1, 2002, OLC memorandum from Jay Bybee to Attorney General Gonzales regarding the legality of interrogation methods?

Mr. HAYNES. I do not recall precisely when I received a copy of the August 1, 2002 opinion interpreting 18 U.S.C. §§ 2340–2340A. Too much time has passed and I have now seen the memo in so many contexts that I can no longer be certain when I saw it for the first time. I cannot even recall whether I simply read the opinion al some point or whether I received a copy of the opinion and, if so, who transmitted the copy. I did, eventually, get a copy of that opinion, but I do not remember when I first got it.

From the context, Hillary may have referred to the Bybee One memo (the one equating torture with organ failure) using a description more apt for the Bybee Two memo (since the latter discussed the legality of interrogation methods).

But regardless of what Hillary meant to ask, Haynes crafts his answer to answer the question he wants to answer. She asks about the memo describing interrogation methods (which would be Bybee Two); he responds about the memo interpreting the statute (which would by Bybee One). 

Someone really ought to ask these thugs these same questions about the Bybee Two memo.

The JPRA Memo Described the “Improvised” Techniques Later Used

Remember this post, in which I argued that a JPRA memo sent to DOD (and probably to CIA and OLC) on July 26, 2002, was probably the description of torture for which OLC gave an oral authorization on that same day? Now that we’ve seen the CIA’s IG Report and many of the documents requesting approval for "new" torture techniques, it’s clear that this document not only described waterboarding as it was practiced, but also a number of other other torture techniques integrated in the program.

Here’s how the SASC Report described the contents of this memo.

On July 26, 2002, JPRA completed a second memorandum with three attachments to respond to the additional questions from the General Counsel’s office. The memo stated that "JPRA has arguably developed into the DoD’s experts on exploitation and as such, has developed a number of physical pressures to increase the psychological and physical stress on students …"

In the memo, JPRA informed the General Counsel’s office that it had already "assist[ed] in the training of interrogator/exploiters from other governmental agencies charged with OEF exploitation of enemy detainees."190 The memo also stated:

Within JPRA’s evolving curriculum to train interrogators/exploiters many interrogation approaches are taught along with corresponding options for physical pressures to enhance the psychological setting for detainee interrogation. Several of the techniques highlighted (Atch 1) as training tools in JPRA courses, used by other SERE schools, and used historically may be very effective in inducing learned helplessness and ‘breaking’ the OEF detainees’ will to resist."

The first attachment to the July 26,2002 memo was ”Physical Pressures used in Resistance Training and Against American Prisoners and Detainees."192 That attachment included a list of techniques used to train students at SERE school to resist interrogation. The list included techniques such as the facial slap, walling, the abdomen slap, use of water, the attention grasp, and stress positions. 193 The first attachment also listed techniques used by some of the service SERE schools, such as use of smoke, shaking and manhandling, cramped confinement, immersion in water or wetting down, and waterboarding.

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Dick Cheney: I’m Proud I Tortured to Protect Our Country But Not Our Allies

One key to Dick Cheney’s defense today is the proud boast that his torture policy worked.

I guess the other thing that offends the hell out of me, frankly, Chris, is we had a track record now of eight years of defending the nation against any further mass casualty attacks from Al Qaeda.


I’m very proud of what we did in terms of defending the nation for the last eight years successfully.


Chris, my sort of overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives and preventing further attacks against the United States, and giving us the intelligence we needed to go find Al Qaeda, to find their camps, to find out how they were being financed. Those interrogations were involved in the arrest of nearly all the Al Qaeda members that we were able to bring to justice. I think they were directly responsible for the fact that for eight years, we had no further mass casualty attacks against the United States. 

It was good policy. It was properly carried out. It worked very, very well.


The thing I keep coming back to time and time again, Chris, is the fact that we’ve gone for eight years without another attack. Now, how do you explain that? 

The critics don’t have any solution for that. They can criticize our policies, our way of doing business, but the results speak for themselves.

I wonder how Jose Maria Aznar feels about Dick Cheney’s proud defense of torture? Spain’s former Prime Minister who staked much on supporting Cheney’s unpopular war in Iraq had that support rewarded with a vicious attack on Madrid’s subway. The attack happened a year after we started torturing Khalid Sheikh Mohammed. But somehow, all the torture of al Qaeda’s mastermind somehow failed to prevent the Madrid attack.

I wonder what the families of those who died in the Madrid attack think, hearing Cheney defend his torture program by boasting of eight years with no attack?

Or what do the Indonesians think to hear of Cheney’s boast? Several months after we tortured Abu Zubaydah in 2002, Indonesia suffered from its worst terrorist attack, in Bali. Yet somehow waterboarding Abu Zubaydah did little to prevent those more than 200 deaths.

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The Waterboarding Authorization the Torturers Used?

I wanted to fully explain what I think may be the backstory to the LAT’s revelation that the torturers weren’t aware of the limits in the Bybee Two memo. Here’s what the LAT said:

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

A number of you have suggested (correctly, on the merits as presented by LAT) that if the torturers didn’t know what, specifically, was in the OLC memos, then they couldn’t very well think their torture was legal.

But that assumes they don’t have another document that, they may have been led to believe, authorized the torture they did.

On July 24, 2002, OLC verbally authorized a number of torture techniques, not including waterboarding. Around the same time, DOD urgently asked JPRA–the entity that administered SERE–to provide a list of its techniques so it could reverse-engineer interrogation techniques from them. In response, JPRA sent a memo with an attachment that described its techniques. Sort of.

(U) On July 26, 2002, JPRA completed a second memorandum with three attachments to respond to the additional questions from the General Counsel’s office. The memo stated that "JPRA has arguably developed into the DoD’s experts on exploitation and as such, has developed a number of physical pressures to increase the psychological and physical stress on students …"

In the memo, JPRA informed the General Counsel’s office that it had already "assist[ed] in the training of interrogator/exploiters from other governmental agencies charged with OEF exploitation of enemy detainees."190 The memo also stated:

Within JPRA’s evolving curriculum to train interrogators/exploiters many interrogation approaches are taught along with corresponding options for physical pressures to enhance the psychological setting for detainee interrogation. Several of the techniques highlighted (Atch 1) as training tools in JPRA courses, used by other SERE schools, and used historically may be very effective in inducing learned helplessness and ‘breaking’ the OEF detainees’ will to resist."

The first attachment to the July 26,2002 memo was ”Physical Pressures used in Resistance Training and Against American Prisoners and Detainees."192 Read more

John Rizzo Pre-Empts the OPR Report

As we speak, the CIA–including, by all appearances, John Rizzo–is reviewing the Office of Professional Responsibility’s report on OLC’s torture memos.

As if on cue, the LAT has a story profiling him. (Also, as if on cue, I take up Spencer’s bait.)

Given its scope, the OPR report must focus on two different periods: the months leading up to the August 2002 OLC memos, and the months leading up to the May 2005 OLC memos (as well as, probably, the time leading up to the March 2003 OLC memo, but that was a DOD memo, not a CIA one).

Those are, not surprisingly, the two years, at least, that appear in this story. We are told–with no sourcing–that Rizzo never dealt with legal questions about torture before the capture of Abu Zubaydah.

Rizzo had never dealt with legal questions about interrogation until officials from the agency’s Counterterrorism Center approached him in 2002 with a list of techniques they wanted to employ to get a suspected Al Qaeda captive, Abu Zubaydah, to talk. Among them was waterboarding, in which a prisoner is strapped to a plank and doused to make him feel he is drowning.

This would suggest the War Council–David Addington, Jim Haynes, John Yoo, and Rizzo–weren’t already talking about torture in December 2001, when Mitchell and Jessen first started developing their torture program. It would also suggest that Rizzo never weighed in on the treatment of Ibn Sheikh al-Libi and others rendered to torture. It would repeat the same myth the Cheney apologists like to tell–that these ideas bubbled up from CTC, rather than were imposed from the top.

It’s an interesting story. If true, then I wonder why it’s taking CIA so long to review that OPR report?

And then there are the 2005 dates. As Spencer describes, at some point in 2005 Rizzo personally observed the Salt Pit.

Rizzo kept close watch on the interrogation program. Once, during a 2005 trip by senior CIA executives to Kabul, Afghanistan, Rizzo disappeared from the crowd after dinner with Afghan intelligence officials.

It wasn’t until the next day, one participant remembered, that Rizzo revealed he had arranged a midnight trip to the Salt Pit, a secret CIA prison on the outskirts of the city, to see detention operations up close.

A CIA detainee had died at the site in 2002. But Rizzo came away newly assured that the operation was well-run, former officials said.

The story would have you believe that Rizzo thought, in 2005, that the torture we were conducting at the Salt Pit was all hunky dory. Read more

More on the Field Trip to Gitmo

Just wanted to point to two tiny details from this passage about the "field trip" of the War Council (Addington, Yoo, Haynes, Gonzales, and Rizzo, plus friends) to Gitmo on September 25, 2002.

According to a trip report prepared by a Deputy Staff Judge Advocate at SOUTHCOM, MG Dunlavey held private conversations with Mr. Haynes and a few others and briefed the entire group on a number of issues including "policy constraints" affecting interrogations at the JTF. 354 For example, MG Dunlavey told the group that JTF-170 would "like to take Koran away from some detainees – hold it as incentive" but that the issue was undergoing a policy determination by SOUTHCOM.355 The trip report noted that Mr. Haynes "opined that JTF-170 should have the authority in place to make those calls, per POTUS order," adding that he "[t]hought JTF-170 would have more freedom to command. 356 MG Dunlavey told the Committee that he may have told the group during their visit that JTF-170 was working on a request for authority to use additional interrogation techniques. 357 Mr. Haynes said he did not recall discussing specific interrogation techniques or GTMO’s work on a request for authority to use additional interrogation techniques. 358

According to the Staff Judge Advocate (SJA) at GTMO, LTC Diane Beaver, there was discussion among senior staff at GTMO as to whether or not the JTF required explicit authorization to use interrogation approaches that had not been taught to interrogators at the U.S. Army Intelligence Center at Fort Huachuca, Arizona. While some felt that JTF-170 already had the authority to use additional interrogation techniques, MG Dunlavey directed his staff to draft a request for new authorities to submit to SOUTHCOM for approval.

The Discussion of the Bybee Two Memo?

First, remember that when Addington testified before the Assholes Who Torture hearing last year, he made clear when asked whether he had discussed the Bybee One memo on this Gitmo trip that it was the Bybee One memo–and not the Bybee Two memo (the one that described torture methods)–about which he was responding. That left the distinct possibility that he discussed the Bybee Two memo on the trip. 

Note this conversation with General Dunlavey then: he speaks with Haynes "and a few others," all in the context of a discussion of harsher methods to use at Gitmo.

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Did Bybee Say No to Waterboarding on July 24, 2002?

Earlier today, I showed that Jim Haynes personally pushed the SERE people to come up with some materials on waterboarding on July 25, 2002, just one day after OLC had given CIA clearance to use some–but not all–of the techniques they had asked for. The same day Haynes got that information and forward it to OLC (or had John Rizzo do it, depending on whom you ask), OLC approved the use of waterboarding.

I wish I had read this passage from this Charlie Savage story before I wrote that post.

One thing could change that dynamic, however. The Justice Department’s Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted.

If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law.

This is the second time we’ve heard about emails.



Imagine there were emails between–say, Addington–and Yoo, discussing what it would take to get Bybee to sign off on the torture memos? Imagine those emails were dated July 25, 2002, the same day that Haynes was pushing  JPRA to come up with some description of waterboarding that–since we did it to our own Navy men, could get past the bar of legality.

I want these guys to pay for their crimes. But I’d take special pleasure if they somehow didn’t manage to destroy all the emails.