The road to torture: How the CIA’s “enhanced interrogation techniques” became legal after 9/11

How CIA Torture Became Legal After 9/11

Joseph Hickman & John Kiriakou on enhanced interrogation

The CIA’s torture techniques—10 in total—increased in severity as one went down the list

EnlargeThe Convenient Terrorist by John Kiriakou and Joseph Hickman; Abu Zubaydah (Credit: Hot Books/AP/U.S. Central Command)

Excerpted with permission from “The Convenient Terrorist” by John Kiriakou and Joseph Hickman. Copyright 2017, Skyhorse Publishing, Inc. Available for purchase on Amazon, Barnes & Noble and IndieBound.

The FBI allows agents to take one of two approaches when conducting an interrogation. The Informed Interrogation Approach calls for the interrogator to become as fully informed on issues important to the subject as possible, and then to establish a rapport with the target. Under this approach, the interrogator builds trust over a period of time until the subject begins to supply useful information. In contrast, the Coercive Interrogation Approach—sometimes called the Coercive Interrogation Technique—calls for interrogators to employ force and pain, and to create a feeling of helplessness and isolation which will make the subject more likely to talk to his interrogator.

But the FBI would not be the only ones interrogating Abu Zubaydah.

Investigators for the Senate Select Committee on Intelligence found that the CIA, at the time of the 9/11 attacks, had in place “longstanding formal standards for conducting interrogations.” These standards did not include torture or “enhanced techniques” of any kind. Indeed, according to the 2012 Senate Intelligence Committee report on CIA torture:

“In January 1989, the CIA informed the Committee that ‘inhumane physical or psychological techniques are counterproductive because they do not produce intelligence and will probably result in false answers.’ Testimony of the CIA deputy director for operations in 1988 (Richard Stolz) denounced coercive interrogation techniques, stating, ‘[p]hysical abuse or other degrading treatment was rejected, not only because it is wrong, but because it has historically proven to be ineffective.’ By October 2001, CIA policy was to comply with the Department of the Army Field Manual ‘Intelligence Interrogation.’ A CIA Directorate of Operations Handbook from October 2001 states that the CIA does not engage in ‘human rights violations,’ which it defined as: ‘Torture, cruel, inhuman, degrading treatment or punishment, or prolonged detention without charges or trial.’ The handbook further stated that 
‘[i]t is CIA policy to neither participate directly in nor encourage interrogation which involves the use of force, mental or physical torture, extremely demeaning indignities or exposure to inhumane treatment of any kind as an aid to interrogation.’”

Yet the rules that had worked so well in the past didn’t seem to fit the world of late 2001, at least according to the CIA leadership. By November 2001, CIA Director George Tenet had ordered his attorneys and senior officers of the Agency’s Counterterrorism Center to draft new protocols for interrogation that would allow for harsher approaches than the Agency had ever allowed before.

In a classified memo entitled “Hostile Interrogations: Legal Considerations for CIA Officers,” dated November 21, 2001, “the Israeli example” is cited as a possible basis for arguing before courts and the American people that “torture was necessary to prevent imminent, significant, physical harm to persons, where there is no other available means to prevent the harm.”

But the CIA was already on record with the Senate Intelligence Committee as saying that torture didn’t work. Committee investigators wrote, “Despite the CIA’s previous statements that coercive physical and psychological interrogation techniques ‘result in false answers’ and have ‘proven to be ineffective.’” Nonetheless, by the end of November 2001, CIA attorneys began circulating a draft memorandum suggesting “novel” legal defenses for CIA officers who might, in the future, engage in torture. According to Senate investigators, “The memorandum stated that the ‘CIA could argue that the torture was necessary to prevent imminent, significant, physical harm to persons, where there is no other available means to prevent the harm,’ adding that ‘states may be very unwilling to call the US to task for torture when it resulted in saving thousands of lives.’”

Still, it wasn’t up to the CIA’s leadership to decide when and if torture should be employed. That remained a policy decision, and it would have to have the support of the Principals’ Committee, chaired by the President, and including the Vice President, the National Security Advisor, the Attorney General, and the Secretaries of State and Defense—in addition to the CIA Director.

In January 2002, according to Senate investigators, the principals began debating whether to apply Geneva Convention protections to captured prisoners from Al Qaeda and the Taliban. Director Tenet sent a letter to President Bush urging “that the CIA be exempt from any application of these protections,” arguing that application of Geneva would significantly hamper the ability of the CIA to obtain critical threat information necessary to save American lives. On February 1, 2002—approximately two months prior to the detention of the CIA’s first prisoner—a CIA attorney wrote that if CIA detainees were covered by Geneva there would be “few alternatives to simply asking questions.” The attorney concluded that, if that were the case, “then the optic becomes how legally defensible is a particular act that probably violates the convention, but ultimately saves lives.”

Preparations for implementing a torture program thus pre-dated Abu Zubaydah’s capture by many months. Senior CIA officers had already bought into the use of “Ticking Time Bomb” scenarios, in which it was argued that captured terrorists had to be tortured to reveal the locations of operations still underway that might result in the deaths of innocent people. However, as FBI agent and interrogator Ali Soufan would later testify before the Senate Judiciary Committee, these scenarios never actually arise. But that didn’t stop the CIA’s senior-most officials from creating a list of torture techniques, euphemistically called “enhanced interrogation techniques,” to be used on high-profile prisoners.

According to the CIA’s inspector general at the time, “the capture of senior Al Qaeda operative Abu Zubaydah on 27 March 2002 presented the Agency with the opportunity to obtain actionable intelligence on future threats to the United States from the most senior Al Qaeda member in US custody at the time. This accelerated CIA’s development of an interrogation program.”

That development took the form of two CIA contract psychologists, Bruce Jessen and James Mitchell. Jessen and Mitchell had been psychologists with the US Air Force Survival, Evasion, Resistance, and Escape (SERE) school, where military personnel are exposed to the kinds of intense and hostile interrogation techniques to which they might be subjected if they were to be shot down and fall into enemy hands. The two founded a consulting company in 2005 to offer the CIA, apparently through a friend who worked in the CIA’s Office of Technical Services, a “reverse-engineered” version of SERE training that could be carried out on prisoners to force them to talk. Senate investigators noted that neither Jessen nor Mitchell had any firsthand experience as interrogators, “nor did either have specialized knowledge of Al Qaeda, a background in terrorism, or any relevant regional, cultural, or linguistic expertise. Jessen had reviewed research on ‘learned helplessness,’ in which individuals might become passive and depressed in response to adverse or uncontrollable events. He theorized that inducing such a state could encourage a detainee to cooperate and provide information.” Yet it was Jessen and Mitchell who first suggested a list of ten coercive techniques that would be used on prisoners

CIA officers then sent this list of techniques to the Justice Department’s Office of Legal Counsel (OLC) for clearance. OLC attorney John Yoo drafted a series of memos approving each of the proposed techniques as legal. OLC director and assistant attorney general Jay Bybee signed the memos in early August 2002 after clearing them with attorneys on the National Security Council. Vice President Richard Cheney later confirmed that he “and others” had “signed off” on the torture techniques. For the first time in US history, it was now legal to torture prisoners.

The CIA’s torture techniques—ten in total—increased in severity as one went down the list. They were largely modeled on techniques used by Chinese communists against captured American servicemen during the Korean War, according to Senator Carl Levin, former chairman of the Senate Armed Services Committee. As outlined in the CIA Inspector General’s Report, they included Attention Grasp; Walling; Facial Hold; Facial Slap or Insult Slap; Cramped Confinement; Insect Placement; Wall Standing; Stress Positioning; Sleep Deprivation; and Waterboarding:

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.

During the walling technique, 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 is 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.

With the facial or insult 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.

In cramped confinement, 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 eighteen hours.

Insects placed in a confinement box involve placing a harmless insect in the box with the detainee. [Authors’ Note: This was to enhance the mental strain on prisoners like Abu Zubaydah, who had an irrational fear of insects.]

During wall standing, the detainee may stand about four to five 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.

The application of stress positions 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.

Sleep deprivation will not exceed eleven days at a time.

The application of the waterboard technique 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 twenty to forty seconds and the technique produces the sensation of drowning and suffocation.

The problem with these techniques is that—the opinions of John Yoo and Jay Bybee notwithstanding—they were specifically prohibited by law. The Federal Torture Act, 18 US Code § 2340, clearly defines torture:

“torture means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

“Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

the intentional infliction of threatened infliction of severe physical pain or suffering;

the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

the threat of imminent death; or

the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

3. “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

The remainder of the Act could not be any clearer:

Offense.—

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

Jurisdiction.—There is jurisdiction over the activity prohibited in subsection (a) if—

the alleged offender is a national of the United States; or

the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

1. Conspiracy.—

A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

The ten approved methods seem to meet the criteria for torture even when applied exactly as described. Yet the CIA officers involved did not always adhere strictly to the techniques. At least two prisoners were killed by CIA officers (or persons acting on behalf of the CIA) during interrogations. These instances—and many more near misses—often involved variations on the ten approved methods.

It wasn’t just US law that prohibited what the CIA was doing. The United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment—of which the United States was the primary author and an original signatory—specifically bans anything approaching “enhanced interrogation” techniques. As Article 1 of the convention states:

“torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity.”

There was precedent for punishing Americans involved in torture, and specifically for involvement in waterboarding. On January 21, 1968, the Washington Post ran a front-page photograph of an American soldier waterboarding a North Vietnamese prisoner. On the day that the photo was published, Defense Secretary Robert McNamara ordered an investigation, and the soldier eventually was court martialed and convicted of torturing a prisoner.

The government had found waterboarding to be an inappropriate form of torture as recently as 1968. No law had been changed since. The Bush Administration merely pretended—thirty-four years later—that this and other precedents did not exist.

President George W. Bush approved the torture of Abu Zubaydah in writing on August 1, 2002. However, it turned out that there was already a backstory, and the torture had already begun, apparently in anticipation of the President’s approval.

The CIA had flown Abu Zubaydah from Pakistan to his “onward location,” a secret prison in a foreign country, codenamed Detention Site Green, in late March 2002. He was too severely wounded to be questioned initially, however, and the Johns Hopkins physician had set up shop on the scene to care for his charge. The CIA medical team decided after his arrival that they could not handle the severity of his injuries, and Abu Zubaydah was again moved to a hospital for treatment. FBI Agent Ali Soufan recalled before the Senate Judiciary Committee: “At the hospital, we continued our questioning as much as possible, while taking into account his medical condition and the need to know all information he might have on existing threats.”

Some weeks later, Abu Zubaydah had recovered enough to be interrogated. As Soufan told the Senate Judiciary Committee:

“Immediately after Abu Zubaydah was captured, a fellow FBI agent and I were flown to meet him at an undisclosed location. We were both very familiar with Abu Zubaydah and have successfully interrogated Al Qaeda terrorists. We started interrogating him, supported by CIA officials who were stationed at the location, and within the first hour of the interrogation, using the Informed Interrogation Approach, we gained important actionable intelligence. The information was so important that, as I learned later from open sources, it went to CIA Director George Tenet, who was so impressed that he initially ordered us to be congratulated.”

Traditional FBI techniques were working. Those techniques instructed agents to “know your subject, establish a rapport with him, and engage him in conversation.” This was happening, and it was yielding results. Soufan told the Senate Judiciary Committee that when Abu Zubaydah returned to the secret site from the hospital: “We were once again very successful and elicited information regarding the role of Khalid Shaikh Muhammad as the mastermind of the 9/11 attacks, and lots of other information that remains classified. It is important to remember that before this, we had no idea of KSM’s role in 9/11 or his importance in the Al Qaeda leadership structure. All this happened before the CTC team (the CIA’s Counterterrorism Center) arrived.”

This was pivotal information. The CIA had had no idea that Khalid Shaikh Muhammad had been the mastermind of the September 11 attacks. They knew only that an individual named “Mukhtar” had been in charge at the time. Muhammad was on the FBI’s most wanted list because he had been indicted in 1996 for his role in a plot to detonate explosives on twelve US airliners flying over the Pacific. On April 10, 2002, during an interrogation conducted by Soufan, Abu Zubaydah identified a photograph of Muhammad as “Mukhtar” and said, correctly, that he was a relative of Ramzi Ahmed Yousef, who was in a US prison after having detonated a bomb at the World Trade Center in 1993.

According to Senate investigators in the Senate torture report released in December 2014, “Abu Zubaydah told the FBI officers that Mukhtar trained the 9/11 hijackers and also provided additional information on KSM’s background, to include that KSM spoke fluent English, was approximately 34 years old, and was responsible for Al Qaeda operations outside Afghanistan.” It was the FBI and Soufan that collected this critical information. There was no CIA involvement. But interestingly, Senate investigators noted, “Subsequent representations on the success of the CIA’s Detention and Interrogation Program consistently describe Abu Zubaydah’s identification of KSM’s role in the September 11, 2001 attacks, as well as his identification of KSM’s alias (Mukhtar), as being ‘important’ and ‘vital’ information.” The CIA was taking credit for the FBI’s success.

Actionable intelligence notwithstanding, the CTC team’s arrival presaged a sea change in the treatment of Abu Zubaydah.

Unbeknownst to Soufan and his FBI colleagues, a decision had been made in Washington that would change everything. The President had signed the order allowing Abu Zubaydah’s torture to begin, and the CTC team already on its way to the site included untrained interrogators and also Jessen and Mitchell, who had created the torture program by reverse-engineering the SERE training.

As Soufan told the Senate Judiciary Committee:

“A few days after we started interrogating Abu Zubaydah, the CTC interrogation team finally arrived from DC with a contractor who was instructing them on how they should conduct the interrogations, and we (the FBI) were removed. Immediately, on the instructions of the contractor, harsh techniques were introduced, starting with nudity.

“The new techniques did not produce results as Abu Zubaydah shut down and stopped talking. At that time, nudity and low-level sleep deprivation (between 24 and 48 hours) was being used. After a few days of getting no information, and after repeated inquiries from DC asking why all of a sudden no information was being transmitted, when before there had been a steady stream, we were again given control of the interrogation.”

Soufan soon returned to his Informed Interrogation Approach. Abu Zubaydah, again clothed and with a good night’s sleep, started talking. He gave the FBI details on Jose Padilla, the so-called “dirty bomber” whom Abu Zubaydah said was planning to detonate a radiological bomb. Thanks to this information, Padilla was arrested in Chicago, charged with criminal conspiracy, convicted, and eventually sentenced to twenty-one years in a federal prison.

But that wasn’t good enough for the CIA, and the contractor again began using torture techniques, this time employing constant loud noise and temperature manipulation, in addition to nudity and sleep deprivation. Soufan and a fellow FBI agent objected to this, but were overruled. A CIA psychologist who had objected earlier left the site in protest.¹⁰⁸ The harsher techniques failed—again—and Soufan was once more asked to reengage with Abu Zubaydah. He had been traumatized by the torture techniques, but, eventually, Abu Zubaydah began speaking with Soufan.

While this was happening, Soufan sent formal objections to both FBI Headquarters and CIA Headquarters. In a cable to his leadership, he said that the CIA psychologist:

“believe[s] AZ is offering ‘throw away information’ and holding back from providing threat information. (It should be note [sic] that we have obtained critical information regarding AZ thus far and have now got him speaking about threat information, albeit from his hospital bed and not [an] appropriate interview environment for full follow-up (due to his health). Suddenly the psychiatric team here wants AZ to only interact with their [CIA officer] as being the best way to get the threat information…We offered several compromise solutions…all suggestions were immediately declined without further discussion…This again is quite odd as all information obtained from AZ has come from FBI lead interviewers and questioning…I have spent an un-calculable [sic] amount of hours at [Abu Zubaydah’s] bedside assisting with medical help, holding his hand and comforting him through various medical procedures, even assisting him in going [to] the bathroom…We have built tremendous [rapport] with AZ and now that we are on the eve of ‘regular’ interviews to get threat information, we have been ‘written out of future interviews’.”

The CIA tactics had shifted once more. Rather than sitting across a table from Soufan, Abu Zubaydah was now interrogated by CIA officers wearing all black uniforms—which included boots, gloves, balaclavas, and goggles—to keep Abu Zubaydah from identifying the officers, as well as to prevent him from “seeing the guards as individuals who he may attempt to establish a relationship or dialogue with.” Meanwhile, Abu Zubaydah was kept naked, deprived of sleep, and after being returned to Detention Site Green from the hospital, kept in a small white room with no windows and four halogen lights.

The CIA-FBI pissing match was coming to a head. The contractor again insisted on taking over, and he asked CIA Headquarters for permission to put Abu Zubaydah into what was called a “confinement box.” Accordingly, Soufan again protested to his superiors at the FBI. He refused to further assist in interrogating Abu Zubaydah. FBI Director Robert Mueller agreed with Soufan’s assessment—that the CIA’s techniques constituted torture—and ordered that all FBI personnel return to the US.

By the summer of 2002, the CIA was fully in control of Abu Zubaydah’s fate. In June 2002, the CIA team decided to put Abu Zubaydah into isolation (solitary confinement) where he remained for forty-seven days. This isolation ended on August 4, 2002, after the President signed the memorandum allowing torture.

The problem for the CIA was that Abu Zubaydah was not providing actionable intelligence on Al Qaeda’s next attack. This was because he simply didn’t know any further information. But the “good cops” were out, while Jessen, Mitchell, and the “bad cops” were in. The CIA saw Abu Zubaydah’s inability to provide the information as “unwillingness,” and deemed him “uncooperative.”

It was this determination that Abu Zubaydah was only being uncooperative that convinced CIA Headquarters to employ increasingly severe forms of interrogation upon their subject. As US Senate investigators subsequently found, in July of 2002 the CIA’s leadership held several meetings specifically to discuss the use of “novel interrogation methods” on Abu Zubaydah.¹¹²These were the “enhanced interrogation techniques” that had previously been cleared by the Justice Department.

It was during this period, at the end of July 2002, that a senior officer at the Counterterrorism Center approached John Kiriakou and asked if he wanted to be “certified in the use of enhanced interrogation techniques.”

“What’s that mean?” Kiriakou asked in the moment.

“It means we’re going to start getting rough with these guys!” was the immediate response.

The CTC officer quickly explained the new techniques that were in the offing.

“That sounds an awful lot like torture,” Kiriakou said.

But then he added that he would take a couple of hours to think about it.

Kiriakou made an appointment to see a very senior CIA officer with whom he’d had a friendly relationship for a decade. That same afternoon he went to the seventh floor, the CIA’s executive level, for the meeting. A moment after sitting down, he told the senior officer about the approach from CTC.

“What do you think?” he asked.

The response was not what he’d been expecting.

“First let’s call it what it is,” the senior officer said. “It’s torture. They can use any euphemism they want, but it’s still torture. And torture is a slippery slope. Eventually, somebody is going to go overboard and they’re going to kill a prisoner. When that happens, there’s going to be a Congressional investigation. Then there’s going to be a Justice Department investigation. And in the end, somebody’s going to go to prison. Do you want to go to prison?”

Kiriakou didn’t.

Kiriakou walked back down to CTC, found the officer, and said bluntly: “This is a torture program. I don’t want to be associated with it.”

But others did.

More than a dozen CIA officers accepted the invitation to be trained in the new techniques. This dozen became the core cadre of “interrogators,” a designation the CIA had never had before.

Yet prior to the actual torture beginning, the CIA found it had more paperwork to take care of. Following the July meetings, the CTC General Counsel and other CIA legal officials sent a letter to Attorney General John Ashcroft asking for a formal declination letter. This would be a letter from the Justice Department specifically declining to prosecute any CIA officer, or any person working on behalf of the CIA, “who may employ methods in the interrogation of Abu Zubaydah that otherwise might subject those individuals to prosecution.”¹¹³ The letter would also specify that “the interrogation team had concluded that the use of more aggressive methods is required to persuade Abu Zubaydah to provide the critical information we need to safeguard the lives of innumerable innocent men, women, and children within the United States and abroad.” It concluded, tellingly, that these “aggressive methods” would otherwise be prohibited by the torture statute.

The CIA knew that what they were planning to do was torture. They admitted as much in this letter. That was why they were asking for a “Get out of Jail Free” card for their torturers

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