Individuals subjected to rendition and secret detention have also been subjected to torture and other cruel, inhuman and degrading treatment and punishment. A small number of individuals have been subjected to torture under the CIA’s Counter-Terrorist Programme. A much larger number have been subjected to torture by proxy, during their detention by the security agents of third party states.
Most of what we know about the CIA’s use of torture comes from a series of previously classified memos exchanged between the CIA’s Office of General Counsel and the US Department of Justice Office of Legal Counsel (OLC), as well as from an investigation under taken by the CIA Inspector General into the interrogation activities of the CIA between 2001 and 2003. The CIA Inspector General’s report was completed in 2004. It was not declassified until 2009.
Approval of Torture under the CIA’s Counter-Terrorist Program
CIA Standard and Enhanced Interrogation Techniques
Prior to 9/11, CIA agents were permitted to use a number of ‘Standard Interrogation Techniques’ (SITs) during questioning of terror suspects. These included sleep deprivation up to 72 hours, continual use of light or darkness in a cell, loud music, and white noise. From late 2001, the CIA tasked an independent contractor psychologist, with experience of the US Air Force’s Survival, Evasion, Resistance, and Escape (SERE) training program, to research the resistance of Al Qaida suspects to interrogation techniques. The psychologist, in collaboration with a Department of Defense psychologist, developed a set of eleven more aggressive ‘Enhanced Interrogation Techniques’ (EITs) that they recommended for use in interrogations.
Meanwhile, in March 2002, Abu Zubaydah, a so-called ‘High Value Detainee’ (HVD) was captured in Pakistan and was being interrogated by the CIA using the SITs.
In July 2002, the CIA began to brief selected US policymakers on the proposed EITs. In the same month, the CIA’s Office of General Counsel wrote to the US Department of Justice Office of Legal Counsel (OLC), seeking permission for use of the EITs. The justification for their use, it was argued, was that Abu Zubaydah was proving resistant to the SITs. On being advised that the 11th technique would delay the legal review of the other ten, the CIA stated that it was eliminated as an option, and permission was sought only for use of the first ten techniques. (The nature of the 11th technique has never been declassified).
The ten approved techniques, along with a brief description provided by the CIA to the OLC, were:
The attention grasp
Consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator.
The detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.
The facial hold
Used to hold the detainee’s head immobile. The interrogator places an open palm on either side of the detainee’s face and the interrogator’s fingertips are kept well away from the detainee’s eyes.
The facial insult or slap
The fingers are slightly spread apart. The interrogator’s hand makes contact with the area between the tip of the detainee’s chin and the bottom of the corresponding earlobe.
The detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours.
Confinement with insects
Involves placing a harmless insect in the box with the detainee
The detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet.
May include having the detainee sit on the floor with his legs extended straight out in front of him with his arms raised above his head or kneeling on the floor while leaning back at a 45 degree angle.
Will not exceed 11 days at a time.
Involves binding the detainee to a bench with his feet elevated above his head. The detainee’s head is immobilized and an interrogator places a cloth over the detainee’s mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and the technique produces the sensation of drowning and suffocation.
Office of Legal Counsel Approval of Enhanced Interrogation Techniques (EITs)
On behalf of the OLC, Jay Bybee, in a classified memo, approved all of the ten EITs for which the CIA had sought approval (listed above) on 1 August 2002, albeit with some restrictions. For example, confinement in larger spaces should not exceed 18 hours, or 4 hours for smaller spaces, and sleep deprivation should not last longer than 11 days at a time.
Bybee sought to offer an interpretation of what was meant by the term torture, concluding that ‘Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering whether mental or physical’. He also concluded that the acts must be of an ‘extreme nature’ and that ‘certain acts may be cruel, inhuman, or degrading, but will not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture’. His understanding of what it would mean to inflict pain of the ‘requisite intensity’ was as follows:
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. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g. lasting months or even years.
Bybee’s judgment was based, in part, on the work of the two psychologists who had developed the EITs. One of their tasks had been to investigate the long term psychological effects resulting from the SERE methods among US military personnel who had undergone SERE training, including water boarding. But the comparison between its use on military personnel in SERE training and on actual detainees is flawed. In training exercises the military personnel know that the experience, however traumatic, will be short-lived, that doctors are on hand, that they are not going to be killed, and that they have access to legal counsel. Actual detainees, by contrast, are deliberately disoriented, in many cases in the ‘War on Terror’ have been held for months if not years on end, do not know if the practice is going to kill them, have no knowledge of whether they will be treated medically, and crucially, have no access at all to the outside world, including legal representatives. They are definitely not made aware of measures that are being taken to avoid killing them. Furthermore, the above techniques were used after detainees had been subjected to many SITs. None of this was lost on Bybee, who in his memo, acknowledged that the detainee would not be made aware of any of the ‘precautions’ that his captors were taking to ‘ensure the subject’s mental and physical safety’, and that the use of the water board ‘constitutes a threat of imminent death’ since it ‘creates in the subject the uncontrollable physiological sensation that the subject is drowning’.
Under the Convention Against Torture there can be no derogation from the prohibitions set out in the Convention. Bybee’s reliance on his reinterpretation of a single statute of US law as a means of providing cover for US personnel in the event that they did violate the Convention was flawed. It could in no way counter the substantial body of international law that prohibits torture, inhuman and degrading treatment in all circumstances. It is difficult to see how Bybee’s counsel would offer any real protection to agents of the CIA who had been complicit in the sanctioning and use of torture in the ‘War on Terror’, a conclusion reached by the CIA Inspector General in his 2004 report.
Unauthorised Torture by the CIA (2002-2004)
The CIA Inspector General’s investigation into the use of the EITs by the CIA, demonstrates that CIA interrogators went much further in the use of these various techniques than Bybee had sanctioned.
The CIA Inspector General’s report shows that frequently interrogators deviated from the guidelines, using methods than had not been sanctioned, and using those that had been sanctioned in more prolonged and harsher ways than had been permitted:
- In practice, the use of water boarding was far more severe than the Bybee memo had permitted. Instead of the controlled pouring of a small amount of water over the damp cloth, placed over the mouth and nose, consistent with SERE training, the IG found that water boarding involved ‘the continuous application of large volumes of water’;
- Interrogators also developed various ‘improvised techniques’. These included the threatening of a detainee, Al-Nashiri, at an undisclosed location, with a power drill and handgun: “The debriefer entered the cell where Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri’s head. On what was probably the same day, the debriefer used a power drill to frighten An-Nashiri ... the debriefer entered the detainee’s cell and revved the drill while the detainee stood naked and hooded”;
- Threats were made to detainees that their families would be tortured and murdered;
- Al-Nashiri was bathed by his captors using a stiff floor cleaning brush, and his captors stood on his ankle shackles causing cuts and bruising;
- A ‘pressure point’ technique was applied to one detainee. Here, the interrogator put ‘both of his hands on the detainee’s neck, [name redacted] manipulated his fingers to restrict the detainee’s carotid artery. [Name redacted], who was facing the shackled detainee, reportedly watched his eye to the point that the detainee would nod and start to pass out; then, [name redacted] shook the detainee to wake him’;
- Detainees were forced to inhale tobacco smoke to the point that they were sick;
- Mock executions were staged, with detainees shown ‘dead bodies’ (really CIA agents acting dead) in an attempt to have them believe that their life was in danger.
These unauthorised sets of abusive techniques found by the CIA’s Inspector General conform to wider accounts of abuse at CIA prisons by the detainees themselves.
Between 2002 and 2004, it is clear that the use of EITs by the CIA went far beyond what had been sanctioned by the OLC. The CIA Inspector General’s report was pretty damning, raising serious questions about the effectiveness of the EITs, expressing considerable concern that they violate US and international law, despite the assurances given by Bybee, and that CIA personnel were at considerable risk of prosecution for their use of the EITs. The CIA Inspector General also encountered a system out of control, with poor and inadequate training, disregard for the requirements to keep records of all interrogation sessions, and the deliberate destruction of evidence in relation to the interrogations, including video tapes of a number of the water-boarding sessions. For a full analysis, of the CIA IG’s findings, see Ruth’s article, ‘Dirty Hands, Clean Conscience'.
Expansion of Torture, 2005
By 2005, the CIA was seeking further permission from the OLC for expanded EITs that it was already using. Permission for these was granted in a classified memo by Steven Bradbury, Principal Deputy Assistant Attorney General, to John Rizzo, Senior Deputy General Counsel for the CIA, on 10 May 2005. The additional techniques included:
The Bradbury memo increased the limit on sleep deprivation, permitting it for up to 180 hours.
Involves the substitution of commercial liquid meal replacements for normal food, presenting detainees with a bland, unappetizing, but nutritionally complete diet.
Used to cause psychological discomfort, particularly if a detainee, for cultural or other reasons, is especially modest. During and between interrogation sessions, a detainee may be kept nude. No sexual abuse or threats of sexual abuse are permitted. Permission was granted for female interrogators involved in the interrogation process to ‘see the detainees naked’, clearly a means of humiliating and degrading detainees, particularly since many were devout Muslims.
The interrogator strikes the abdomen of the detainee with the back of his open hand. The interrogator must have no rings or other jewelry on his hand.
Cold water is poured on the detainee either from a container or from a hose without a nozzle. The water poured on the detainee must be potable, and the interrogators must ensure that water does not enter the detainee’s nose, mouth or eyes. (Water dousing was identified by the IG report as an improvised technique that was widely used in interrogations but had not been sanctioned by the Bybee memo, although the IG noted that they were included in draft guidelines as a standard measure as early as 2003).
Additional Stress Position
The Bybee memo made specific reference to two types of stress position, the first being forcing detainees to sit on the floor with legs extended in front of him and arms above his head, and the second, forcing the detainee to kneel on the floor while leaning back at a 45 degree angle. The Bradbury memo adds a third more extreme position, in which the detainee is forced to lean against a wall about three feet away from the detainees feet, with only his head touching the wall, while his wrists are handcuffed in front of him or behind his back.
According to the Bradbury memo, this was increased to two hours on 19 August in either 2002, 2003 or 2004, in a further letter that was sent to the CIA’s Office of General Counsel. That letter remains classified, and the year in which the letter was sent has been redacted from the Bradbury memo. Nevertheless, it is clear from the IG report that as early as August 2002, water boarding sessions were lasting longer than Bybee had permitted, and the quantity of water used in each application far exceeded the guidelines. By 2005, Bradbury, on behalf of the OLC, was advising the CIA that water boarding sessions should be restricted as follows:
The waterboard may be authorized for, at most, one 30-day period, during which the technique can actually be applied on no more than five days [...] Further, there can be no more than two sessions in any 24-hour period. Each session – the time during which the detainee is strapped to the waterboard – lasts no more than two hours. There may be at most six applications of water lasting ten seconds or longer during any one session, and water may be applied for a total of no more than twelve minutes during any 24-hour period
This would mean detainees could not be subjected to no more than 10 water boarding sessions, and 60 individual applications of water in a 30-day period. The implementation of these rules would therefore suggest that the OLC was influenced by the IG’s conclusions that the treatment of Zabaydah and Khalid Sheikh Mohammed had been excessive.
Click here for an account from Abu Zubaydah, the first High Value Detainee subjected to EITs, of how these techniques were employed in combination. This account was told to the ICRC, and represents one of the only accounts in the public record of how the specific EITs, as authorised, were used in practice.
Click here for the ICRC's assessment that these EITs, along with other conditions of detention and interrogation experienced by the HVDs, amounted to torture. Given the role that the ICRC plays in upholding international humanitarian law, this assessment is hugely significant.
Torture by Proxy
In the detention facilities of third countries, detainees have also reported being subjected to other forms of torture, including the beatings of the soles of the feet, sexual abuse, and torture using electricity.
We were in a specially made room with iron rings on the wall, and they chained my hands to the ceiling. They also tied a rubber string on my penis that didn’t allow me to pee. They left it on the whole time I was with them, except sometimes they would briefly undo it. It was terribly painful.
Marwan Jabour, held by Pakistan's ISI
They came in and cuffed my hands behind my back. Then three men came in with black ski masks that only showed their eyes ... one stood on each of my shoulders and the third punched me in the stomach. The first punch ... turned everything upside down. I felt I was going to vomit. I was meant to stand, but I was in so much pain I'd fall to my knees. They'd pull me back up and hit me again. They'd kick me in the thighs as I got up. They just beat me up that night ... I collapsed and they left. I stayed on the ground for a long time before I lapsed into unconsciousness. My legs were dead. I could not move. I'd vomited and pissed on myself ... [Later] one of them took my penis in his hand and began to make cuts. He did it once and they stood for a minute, watching my reaction. I was in agony, crying, trying desperately to suppress myself, but I was screaming. They must have done this 20 or 30 times, in maybe two hours. There was blood all over. They cut all over my private parts. One of them said it would be better just to cut it off, as I would only breed terrorists ... there were even worse things, too horrible to remember, let alone talk about.
Binyamin Mohamed, held and tortured in Morocco