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INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY-- REPORT OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE |
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II. Development of New Interrogation Authorities (U) A. CIA's Interrogation Program and the Interrogation of Abu Zubaydah (U) (U) Abu Zubaydah was captured by Pakistani and CIA forces on March 28, 2002. According to former CIA Director George Tenet, once Zubaydah was in custody, the CIA "got into holding and interrogating high-value detainees" (HVDs) "in a serious way." [110] Then-National Security Advisor Condoleezza Rice said that "in the spring of 2002, CIA sought policy approval from the National Security Council to begin an interrogation program for high-level al-Qaida terrorists." [111] Then-NSC Legal Advisor John Bellinger said that he asked CIA to have the proposed program reviewed by the Department of Justice and that he asked CIA to seek advice not only from DoJ's Office of Legal Counsel (OLC) but also from the Criminal Division. [112] Ms. Rice said that she asked Director of Central Intelligence George Tenet to brief NSC Principals on the proposed CIA program and asked Attorney General Ashcroft "personally to review the legality of the proposed program. [113] She said that all of the meetings she attended on the CIA's interrogation program took place at the White House and that she understood that DoJ's legal advice "was being coordinated by Counsel to the President Alberto Gonzales." [114] (U) According to President Bush, the agency developed an "alternative set" of "tough" interrogation techniques, and put them to use on Zubaydah and other HVDs. [115] Though virtually all of the techniques that were used on Zubaydah remain classified, CIA Director Michael Hayden confirmed that waterboarding was used on Zubaydah. [116] Assistant Attorney General for the Office of Legal Counsel (OLC) Steven Bradbury testified before Congress that the "CIA's use of the waterboarding procedure was adapted from the SERE training program." [117] When asked whether she was present for discussions about physical and/or psychological pressures used in SERE training, Secretary Rice recalled "being told that U.S. military personnel were subjected in training to certain physical and psychological interrogation techniques." [118] Mr. Bellinger, the NSC Legal Advisor, stated that he was "present in meetings at which SERE training was discussed." [119] (U) Public reports have identified a retired U.S. Air Force SERE psychologist, Dr. James Mitchell, as having participated in the CIA's interrogation of Zubaydah. [120] Dr. Mitchell, who retired from the Air Force in 2001, agreed to speak to the Committee about his time at DoD. [Big delete] [Big delete] (U) An unclassified version of a May 2008 report by the Department of Justice (DoJ) Inspector General (IG) confirmed that FBI agents "initially took the lead in interviewing Zubaydah at the CIA facility," but that "CIA personnel assumed control over the interviews" when they arrived at the facility. [125] [Big delete] [Big delete] [Big delete] (U) The FBI Special Agent told the DoJ Inspector General that he also "raised objections to these techniques to the CIA and told the CIA it was 'borderline torture." [130] According to the unclassified DoJ Inspector General's report, a second FBI agent present did not have a "'moral objection'" to the techniques and noted that he had "undergone comparable harsh interrogation techniques as part of the U.S. Army Survival, Evasion, Resistance and Escape (SERE) training." [131] [Big delete] (U) According to the DoJ Inspector General's report, FBI Counterterrorism Assistant Director Pat D' Amuro gave the instruction to both FBI agents to "come home and not participate in the CIA interrogation." The first FBI Special Agent left immediately, but the other FBI agent remained until early June 2002. [133] The report said that around the time of Zubaydah's interrogation, FBI Director Robert Mueller decided that FBI agents would not participate in interrogations involving techniques the FBI did not normally use in the United States, even though the OLC had determined such techniques were legal. [134] Then-National Security Advisor Condoleezza Rice said that she had a "general recollection that FBI had decided not to participate in the CIA interrogations" but "was not aware that FBI personnel objected to interrogation techniques used or proposed for use with Abu Zubaydah." [135] B. JPRA Assistance to Another Government Agency (U) [delete] [delete] As [delete] interrogation of Abu Zubaydah was ongoing, [big delete]. The Chief of JPRA's Operational Support Office (OSO), Christopher Wirts, told the Committee that he had five or fewer meetings with [delete] [delete] where they discussed [delete] interrogations. [136] [delete] [delete] At some point in the first six months of 2002, JPRA assisted with the preparation of a [delete] sent to interrogate a high level al Qaeda operative. [137] In a June 20, 2002 memo to JPRA's Commander Randy Moulton, JPRA's Deputy Commander Col John Prior, characterized the assistance as ''training'' and noted that the psychologist had suggested "exploitation strategies" to [delete] officer. [138] [delete] [delete] Dr. Bruce Jessen JPRA's senior SERE psychologist, told the Committee that he had met with a [delete] who was en route to an interrogation. [139] He said he may have offered the [big delete] but that he did not discuss [big delete]. [delete] [delete] JPRA also conducted training and pre-mission preparation for a group of [delete] officers. [140] On June 17, 2002, [delete] sent a request to the Joint Staff seeking DoD approval for the two-day JPRA training. [141] That request was drafted by an [big delete] and Mr. Wirts, JPRA's OSO Chief. [142] DoD General Counsel Jim Haynes told the Committee that he had been made aware of a [delete] request for JPRA training at least as early as late summer 2002. [143] [delete] request asked that JPRA provide training [delete] on topics such as [delete] "deprivation techniques," "exploitation and questioning techniques," and "developing countermeasures to resistance techniques." [144] The training was intended to "prepare [delete] officers for rotations in Afghanistan and elsewhere." [145] [delete] In response to that request, JPRA Deputy Commander Col John Prior recommended to the JPRA Commander: Because of the urgent need to extract information from captured al Qaeda operatives, and because JPRA has the sole repository of the required skill set JPRA personnel should provide this expertise and training to [delete]. To prevent compromise and inadvertent modification of JPRA's charter, personnel will avoid linking JPRA directly to this training. . . . Having the true exploitation and captivity environment experts and specialists, JPRA may be called upon in extremis to actually participate in future exploitation of foreign prisoners; this request would clearly fall outside JPRA's chartered responsibilities; if this request is made, JPRA would require a SecDef policy determination ... [146] [delete] Col Prior's memo stated that the JFCOM J-3 or his office had been apprised of [delete] support requests. [147] A Joint Staff Action Processing Form indicated that [delete] request was endorsed by JPRA, JFCOM, Joint Staff, and the Office of the Undersecretary of Defense for Policy and approved on June 27, 2002. [148] [delete] In advance of the training, JPRA developed a two day lesson for [delete] [delete] the "full spectrum [of] exploitation," including both explanations and demonstrations of physical pressures that were approved for use at JPRA's SERE school. [149] At the time, JPRA-approved techniques included body slaps, face slaps, hooding, stress positions, walling, immersion in water, stripping, isolation, and sleep deprivation, among others. [150] [delete] The two day training took place at [delete] headquarters on July 1-2, 2002. [151] According to a July 16, 2002 after action memo prepared for Col Moulton, the training covered [Big delete]. [152] Time was also set aside for [delete] who had recently been conducting interrogations in Afghanistan to discuss their experiences. Other time was spent covering the physical and psychological pressures used at SERE school. Dr. Gary Percival, a JPRA instructor at the training, said that in their demonstration of physical pressures, JPRA instructor Joseph Witsch acted as the "beater" while he was the "beatee." [53] [delete] In addition to explaining and demonstrating the physical pressures used at SERE school, the JPRA personnel also provided instruction on waterboarding. [154] (D) At the time, waterboarding was only used by the U.S. Navy SERE school and its use was prohibited at the JPRA, Army, and Air Force SERE schools. [155] The U.S. Navy has since abandoned its waterboarding at its SERE schools. None of the JPRA personnel who provided the assistance had ever conducted waterboarding and would not have been qualified to do so at SERE school. [156] [delete] [delete] The July 16, 2002 after action memo stated that two agency legal personnel were also present for the training. [157] According to the memo, [delete] personnel "requested and were granted time to present the legal limits of physiological and psychological pressures that were acceptable at the present time." [158] The after action memo described the legal briefing: Their 30-40 [minute] brief was very supportive. Basically, [delete] were told they could use all forms of psychological pressure discussed and all of the physiological pressures with the exception of the 'water board.' They were advised that should they feel the need to use the water board, they would need prior approval. They were also briefed on the ramifications for participating in torture, which under international law is defined as a 'capital crime' and could result in a death sentence if convicted. An eye opener to say the least. [159] [delete] The JPRA instructors who conducted the training did not recall [delete] lawyers providing any further guidance about how to seek approval for use of the waterboard in an interrogation. [160] (D) However, Chief Counsel to the [delete] Jonathan Fredman later described an approval process for the use of aggressive interrogation techniques reportedly explaining that "[t]he CIA makes the call internally on most of the types of techniques," but that "[s]ignificantly harsh techniques are approved through the DOJ." [161] [delete] In his after action memo from [delete] training, JPRA instructor Joseph Witsch stated that ''the training seemed well received and beneficial for the majority of the personnel present." [162] He observed that some of the class participants had "little to no[ ] experience" in interrogation and others had "recently returned from conducting actual interrogations in Afghanistan." [163] [Delete] [delete] In his memo, Mr. Witsch also commented on JPRA's future support to interrogations, writing: I believe our niche lies in the fact that we can provide the ability to exploit personnel based on how our enemies have done this type of thing over the last five decades. Our enemies have had limited success with this methodology due to the extreme dedication of [American] personnel and their harsh and mismanaged application of technique. The potential exists that we could refine the process to achieve effective manipulation / exploitation. We must have a process that goes beyond the old paradigm of military interrogation for tactical information or criminal investigation for legal proceedings. These methods are far too limited in scope to deal with the new war on global terrorism." [164] [delete] Mr. Witsch recommended that JPRA develop two courses for future JPRA customers - a basic course and an advanced course to deal with "senior, hardcore, and resistance trained detainees." [165] The courses, he said, will need "immediate attention and will require a total role reversal from current methodology and our standard approaches to training. It will take a cross section of SERE experienced personnel -- SERE instructors, psychologists, MDs and intelligence personnel to effectively develop this new approach to captive handling and manipulation." [166] C. Senior SERE Psychologist Detailed From Department of Defense to Other Government Agency (U) [delete] In July 2002, after the JPRA training for [delete] the senior SERE psychologist, Dr. Bruce Jessen was detailed to [delete] for several days. [167] At the conclusion of this assignment, Dr. Jessen retired from the Department of Defense and began working as an independent contractor to [delete]. [168] [Big delete] (U) Dr. Jessen did tell the Committee that, in some circumstances, physically coercive techniques are appropriate for use in detainee interrogations. He said that the use of physically coercive techniques may be appropriate when (1) there is good reason to believe that the individual has perishable intelligence, (2) the techniques are lawful and authorized, (3) they are carefully controlled with medical and psychological oversight, (4) someone (who is not otherwise involved in the interrogation) can stop the use of the techniques, and (5) the techniques do not cause long-term physical or psychological harm. [170] Dr. Jessen acknowledged that empirically, it is not possible to know the effect of a technique used on a detainee in the long-term, unless you study the effects in the long-term. However, he said that his conclusion about the long-term effects of physically coercive techniques was based on forty years of their use at SERE school. [171] (U) Subsequent to his retirement from DoD, Dr. Jessen joined Dr. Mitchell and other former JPRA officials to form a company called Mitchell Jessen & Associates. Mitchell Jessen & Associates is co-owned by seven individuals, six of whom either worked for JPRA or one of the service SERE schools as employees and/or contractors. [I72] As of July 2007, the company had between 55 and 60 employees, several of whom were former JPRA employees. [173] D. Department of Defense General Counsel Seeks Information on SERE Techniques From JPRA (U) (U) Just weeks after the JPRA provided assistance to the OGA, DoD Deputy General Counsel for Intelligence Richard Shiffrin contacted JPRA Chief of Staff Daniel Baumgartner seeking a list of exploitation and interrogation techniques that had been effective against Americans. [174] In testimony to the DoD Inspector General (IG), Mr. Shiffrin stated that he made the request after several conversations with General Counsel Jim Haynes. [175] Mr. Shiffiin later said that everything he asked for from JPRA was to respond to requests from Mr. Haynes. [176] Mr. Haynes testified to the Committee that he could not remember "specifically" asking Mr. Shiffiin for information on SERE techniques, but that he "asked generally" about that subject sometime in the summer of 2002. He also said that he remembered being "interested" in that information, and that if he had requested it, he would have requested it through Mr. Shiffrin. [177] Although Mr. Haynes did not say why he was interested in this information, when asked whether he had discussed "SERE techniques with [] Messrs. Gonzales, Addington, Rizzo, Yoo, or any of the other senior lawyers he met with "regularly," Mr. Haynes testified to the Committee that he "did discuss SERE techniques with other people in the administration." [178] (U) JPRA Chief of Staff Lt Col Daniel Baumgartner said that when the request from the General Counsel's office came in, he called Col Moulton and Brig Gen Thomas Moore, the JFCOM Director for Operations (13), and received permission to provide the requested information to the General Counsel's office. [179] JPRA initially responded to the General Counsel's inquiry on July 25, 2002 with a memorandum signed by Lt Col Baumgartner. [180] [Delete] [delete] The JPRA memorandum stated that "JPRA has arguably developed into the DoD's experts on exploitation." It continued: Recognizing the typical training for strategic debriefers in the intelligence community did not include either SERE training (as a student) or grounding in exploitation strategy and associated interrogation techniques, JPRA offered assistance to intelligence organizations charged with interviewing enemy detainees. JPRA [Big delete] will brief the Criminal Investigative Task Force (CITF) next Tuesday to determine their requirements. [181] (U) JPRA attached several lesson plans on exploitation and interrogation to the memo. [182] In closing, the memo stated: The enclosed documents provide a thorough academic grounding in exploitation and were built on what has been effective against Americans in the past. The ability to exploit, however, is a highly specialized skill set built on training and experience. JPRA will continue to offer exploitation assistance to those governmental organizations charged with the mission of gleaning intelligence from enemy detainees. [183] (U) The memorandum and its attachments were delivered to the Deputy General Counsel Richard Shiffrin by a JPRA employee and were emailed to relevant personnel at both JPRA and Brig Gen Moore's office at JFCOM. [I84] DoD General Counsel Jim Haynes did not recall whether or not he saw the memo at the time, but said that "in all likelihood," he would have received the memo, and that the timing of the memo coincided with his recollection of his meeting with JPRA personnel. [185] (U) According to Lt Col Baumgartner, prior to the July 25, 2002 memo being delivered to the General Counsel's office, Mr. Shiffrin called him to ask for additional information, including a list of techniques used by JPRA at SERE school. Mr. Shiffrin testified to the Committee that he was ''under pressure" from Mr. Haynes to get the material to his office as quickly as possible. [186] (U) Lt Col Baumgartner said that he thought the General Counsel's office was asking for information on exploitation and physical pressures to use them in interrogations. Mr. Shiffrin confirmed that one of the purposes for seeking information from JPRA was to "reverse-engineer" the techniques. [187] Lt Col Baumgartner said that he wanted to be helpful, but that he told Mr. Shiffrin that JPRA's techniques were designed to show Americans the worst possible treatment that they may face, and that any recommendation for the use of techniques on detainees would require Administration approval. [188] (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 ..."[189] [Delete[ delete] 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." [191] [Delete] 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. [Delete] JPRA's description of the waterboarding technique provided in that first attachment was inconsistent in key respects from the U.S. Navy SERE school's description of waterboarding. According to the Navy SERE school's operating instructions, for example, while administering the technique, the Navy limited the amount of water poured on a student's face to two pints. However, the JPRA attachment said that "up to 1.5 gallons of water" may be poured onto a "subject's face." While the Navy's operating instructions dictated that "[n]o effort will be made to direct the stream of water into the student's nostrils or mouth," the description provided by JPRA contained no such limitation for subjects of the technique. While the Navy limited the use of the cloth on a student's face to twenty seconds, the JPRA's description said only that the cloth should remain in place for a "short period of time." And while the Navy restricted anyone from placing pressure on the chest or stomach during the administration of this technique, JPRA's description included no such limitation for subjects of the technique. [194] [Delete] Attachment one also listed tactics derived from JPRA SERE school lesson plans that were designed to "induce control, dependency, complia[n]ce, and cooperation," including isolation or solitary confinement, induced physical weakness and exhaustion, degradation, conditioning, sensory deprivation, sensory overload, disruption of sleep and biorhythms, and manipulation of diet. [195] (U) DoD General Counsel Jim Haynes told the Committee that although he could not recall if he had seen the specific list of SERE physical pressures sent to his office on July 26, 2002, he knew that he had seen a list of physical pressures used in JPRA resistance training. [196] [Delete] Mr. Haynes also recalled that he may have been "asked that information be given to the Justice Department for something they were working on," which he said related to a program he was not free to discuss with the Committee, even in a classified setting. [197] (U) A second attachment to the July 26, 2002 JPRA memo to the General Counsel's office was entitled "Operational Issues Pertaining to the use of Physical/Psychological Coercion in Interrogation." [198] In attachment two, JPRA stated that the memo did not purport to address the "myriad legal, ethical, or moral implications of torture; rather, [the memo focused on] the key operational considerations relative to the use of physical and psychological pressures."[199] (U) Attachment two described operational risks associated with using "physical and/or psychological duress" (a phrase that JPRA used interchangeably with ''torture'' throughout most of attachment two) in interrogations. [200] The attachment said that one risk was that the use of these methods would increase the "prisoner's level of resolve to resist cooperating." [201] JPRA explained that "[O]nce any means of duress has been purposefully applied to the prisoner, the formerly cooperative relationship cannot be reestablished. In addition, the prisoner's level of resolve to resist cooperating with the interrogator will likely be increased as a result of harsh or brutal treatment." [202] (U) According to attachment two, another risk to using techniques that increase physical and psychological duress was that it created doubts about the reliability and accuracy of information obtained. [203] JPRA explained in attachment two that "[i]f an interrogator produces information that resulted from the application of physical and psychological duress, the reliability and accuracy of this information is in doubt. In other words, a subject in extreme pain may provide an answer, any answer, or many answers in order to get the pain to stop." [204] (U) A third operational risk was the potential impact that the physical and psychological duress could have on treatment of US. personnel. [205] JPRA explained in attachment two that: 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. [206] (U) The third attachment to JPRA's July 26, 2002 memo was a memo from the Chief of Psychology Services at the Air Force SERE school, Jerald Ogrisseg, on the "Psychological Effects of Resistance Training." [207] That memorandum, which was generated in response to a specific request from the General Counsel's office, described available evidence on the long-term psychological effects of Air Force SERE training on U.S. personnel and commented from a psychological perspective on the effects of using the waterboard. (U) JPRA Chief of Staff Daniel Baumgartner said that when the General Counsel's office requested a memo on the psychological effects of resistance training, he called Dr. Ogrisseg at the Department of the Air Force's Air Education and Training Command. [208] Dr. Ogrisseg said that Lt Col Baumgartner asked his opinion during the phone call about his thoughts on waterboarding the enemy. [209] Dr. Ogrisseg recalled asking, "wouldn't that be illegal?" [210] According to Dr. Ogrisseg, Lt Col Baumgartner replied that people were asking "from above" about using waterboarding in real world interrogations. [211] Dr. Ogrisseg recalled telling Lt Col Baumgartner, "aside from being illegal, it was a completely different arena that we in the Survival School didn't know anything about." [212] (U) Subsequent to that call, Dr. Ogrisseg reviewed the data on the effects of Air Force SERE resistance training on students and produced his memo, concluding that "if there are any long-term psychological effects of [U.S. Air Force Resistance Training], they are certainly minimal." [213] The memo attributed this conclusion to efforts the Air Force SERE program undertook to minimize the risk of temporary psychological effects of resistance training becoming long- term effects. [214] The Air Force minimized the risk by, among other things, performing three extensive debriefings during training. Dr. Ogrisseg said that "affording students these opportunities to discuss their training experiences in open group environments mitigates the risk of turning a 'dramatic' experience into a 'traumatic' experience." [215] He told the Committee that there are numerous controls in place at SERE school to ensure that the training does not become "traumatic" for its students. [216] (U) Dr. Ogrisseg said that Lt Col Baumgartner also asked him "to comment on both the physical and psychological effects of the waterboard," which he described in his memo as an "intense physical and psychological stressor" used at the U.S. Navy SERE school. [217] Although Dr. Ogrisseg had not used the waterboard himself, he had observed its use in a visit to the Navy SERE School. He stated that, based on that visit, he did not believe that the ''water[] board posed a real and serious physical danger to the students" who experienced it at the SERE school, stating that the "Navy had highly qualified medical personnel immediately available to intervene, and their students had all been medically screened prior to training. Psychologically, however, the water[] board broke the students' will to resist providing information and induced helplessness." [218] (U) Dr. Ogrisseg said that he was surprised when he found out later that Lt Col Baumgartner had forwarded his memo to the General Counsel's office along with a list of the physical and psychological techniques used in SERE school. [219] Dr. Ogrisseg said that his analysis was produced with students in mind, not detainees. He stated that the conclusions in his memo were not applicable to the offensive use of SERE techniques against real world detainees and he would not stand by the conclusions in his memo if they were applied to the use of SERE resistance training techniques on detainees. (U) In a written response to a question posed by Senator Carl Levin after the Committee's June 17, 2008 hearing, Dr. Ogrisseg elaborated on that point noting several "important differences between SERE school and real world interrogations that would limit [the] conclusions [in his memo] to the SERE school training population." [220] Among those differences Dr. Ogrisseg identified were (1) the extensive physical and psychological pre-screening processes for SERE school students that are not feasible for detainees, (2) the variance in injuries between a SERE school student who enters training and a detainee who arrives at an interrogation facility after capture, (3) the limited risk of SERE instructors mistreating their own personnel, especially with extensive oversight mechanisms in place, compared to the risk of interrogators mistreating non-country personnel, (4) the voluntary nature of SERE training, which can be terminated by a student at any time, compared to the involuntary nature of being a detainee, (6) the limited duration of SERE training, which has a known starting and ending point, compared to the often lengthy, and unknown, period of detention for a detainee, and (7) the underlying goals of SERE school (to help students learn from and benefit from their training) and the mechanisms in place to ensure that students reach those goals compared to the goal of interrogation (to elicit information). (U) In addition, Dr. Ogrisseg also stated that, since writing his memo in July 2002, he had reviewed studies about the effects of near death experiences, and that he had become concerned about the use of waterboarding even as a training tool. [221] The U.S. Navy SERE school abandoned its use of the waterboard in November 2007. (U) Lt Col Baumgartner testified to the Committee that, subsequent to sending his two memos and their attachments - including the list of SERE techniques - to the General Counsel's office, another government agency asked for the same information. Lt Col Baumgartner said that he provided that information to the OGA. [222] [Delete] In his interview with the Committee, Lt Col Baumgartner said that [delete] personnel had contacted him requesting a copy of the same information that had been sent to the DoD General Counsel. Lt Col Baumgartner recalled speaking to an attorney and a psychologist at [delete] about the request and sending the information to the [delete]. [223] E. The Department of Justice Changes the Rules (U) (U) On August 1, 2002, less than a week after JPRA sent the DoD General Counsel's Office its memoranda and attachments, the Department of Justice issued two legal opinions signed by then-Assistant Attorney General for the Office of Legal Counsel (OLC) Jay Bybee. (U) Before drafting the August 1, 2002 opinions, Deputy Assistant Attorney General for the OLC John Yoo had met with Counsel to the President Alberto Gonzales and Counsel to the Vice-President David Addington to discuss the subjects that he intended to address. [224] Then-National Security Advisor Condoleezza Rice said that she understood that the Department of Justice's legal advice to the CIA "was being coordinated by Counsel to the President Alberto Gonzales." [225] (U) The first of the two August 1, 2002 OLC memoranda, known to many as the "First Bybee" memo, presented OLC's narrow interpretation of what constituted torture under U.S. law. The memo stated that the federal anti-torture statute of 1994 prohibited "only extreme acts" and that in order to constitute torture, physical pain would have to be equivalent in intensity to that accompanying "serious physical injury, such as organ failure, impairment of bodily functions or even death." [226] For mental pain to rise to the level of torture, according to the memo, it would have to result in "significant psychological harm of significant duration, e.g., lasting for months or even years." [227] The First Bybee memo also found that the federal anti-torture statute may not be applicable to interrogations ordered by the President if he acted pursuant to his Constitutional commander-in-chief powers. Further, the memo argued that even if the federal anti-torture statute could be construed to apply to such interrogations, the defenses of necessity and self-defense could potentially eliminate criminal liability under the statute. [228] (U) The First Bybee memo also effectively dispensed with the "specific intent" requirement of the federal anti-torture statute by narrowly defining that requirement. The federal anti-torture statute states that, in order to constitute torture, an act must be "specifically intended to inflict severe physical or mental pain or suffering." [229] The First Bybee memo stated that in order "for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act." [230] Under that interpretation, to violate the law, a person must expressly intend to commit torture and the memo stated that "knowledge alone that a particular result is certain to occur does not constitute specific intent." (U) Jack Goldsmith, who succeeded Jay Bybee as Assistant Attorney General of the OLC in 2003, described the First Bybee memo's conclusions and their effect: [V]iolent acts aren't necessarily torture; if you do torture, you probably have a defense; and even if you don't have a defense, the torture law doesn't apply if you act under color of presidential authority. CIA interrogators and their supervisors, under pressure to get information about the next attack, viewed the opinion as a 'golden shield,' as one CIA official later called it, that provided enormous comfort. [231] (U) The second August 1, 2002 OLC legal opinion was also signed by Assistant Attorney General Jay Bybee. [232] According to a declaration made to the United States District Court for the Southern District of New York by the Information Review Officer for the CIA, the so-called "Second Bybee" memo is an 18-page legal memorandum from the OLC to the Office of General Counsel of the CIA containing "information relating to the CIA's terrorist detention and interrogation program" and 'advice to' the CIA regarding potential interrogation methods." [233] According to the filing, the CIA requested the legal guidance from the Department of Justice. [234] A February 1, 2005 letter from the Justice Department to Senator Arlen Specter, then-Chairman of the Senate Judiciary Committee, stated that the Second Bybee memo gave the CIA "specific advice concerning specific interrogation practices, concluding that they are lawful." [235] And the unclassified report of the Department of Justice Inspector General explained that the opinion analyzed "specific techniques approved for use on Zubaydah includ[ing] waterboarding ..." [236] [Big delete] [237] John Bellinger, the NSC Legal Advisor, said that he "expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations. [238] (U) The Committee has been denied the Second Bybee memo and does not know which specific interrogation practices, other than waterboarding, were analyzed in the memo. A heavily redacted version of the Second Bybee memo, released on July 24, 2008, provides no further details about the specific interrogation practices that were analyzed by the OLC. [239] The unredacted sections only make clear that the OLC applied its analysis in the First Bybee memo to a set of (redacted) facts at issue in the Second Bybee memo. [240] And while public sources have suggested that the OLC's analysis applied to Zubaydah, then-Deputy Assistant Attorney General John Yoo suggested in recent testimony that it "perhaps" applied to others "similarly situated." [241] (U) According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was "the vehicle" for getting the interrogation practices analyzed in the Second Bybee memo to the Department of Justice." [242] [Delete] Lt Col Baumgartner, the JPRA Chief of Staff, recalled sending a copy of the same information that he had sent to the DoD General Counsel - including the list of SERE techniques and Dr. Ogrisseg's memo on the psychological effects of Air Force SERE training and on waterboarding - to [delete] attorney. [243] Mr. Haynes, the DoD General Counsel, recalled that in the context of reviewing the list of SERE techniques provided to his office, that he may have been "asked that information be given to the Justice Department for something they were working on." [244] (U) With respect to the issues addressed in Dr. Ogrisseg's memo relating to the psychological effects of resistance training, Mr. Haynes said that he knew that there was a government interest in that subject, but that he did not know if that information was used as support in any OLC legal analysis, and if he did know, he did not recall. [245] (U) Then-NSC Legal Advisor John Bellinger said that some of the legal analysis of proposed interrogation techniques prepared by the Department of Justice referred to ''the psychological effects of military resistance training." [246] In fact, Jay Bybee, the Assistant Attorney General who signed the two August 1, 2002 opinions, said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said the assessment - which to the best of his recollection had been provided by the CIA - informed the August 1, 2002 OLC legal opinion that has not been released publicly. [247] In his June 26, 2008 testimony before the House Judiciary Committee, John Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the August 1, 2002 memos were being drafted. [248] (U) While Judge Bybee said that he did not recall "any written advice provided to any governmental agency prior to August 1, 2002, on the meaning of the standards of conduct required for interrogation under the federal anti-torture statute or on specific interrogation methods," the August 1, 2002 memos were not the only occasion on which DOJ provided legal advice on the CIA's interrogation program. [249] John Bellinger, the NSC Legal Advisor, said that he understood that in 2002 and 2003, the OLC provided "ongoing advice to CIA regarding CIA's interrogation program." [250] And then-National Security Advisor Condoleezza Rice said that she was present at "several" meetings in the White House at which Mr. Yoo provided legal advice. [251] Ms. Rice said that she asked Attorney General John Ashcroft "personally to review and confirm" DoJ's legal guidance. [252] F. JPRA's Special Program In Support of [delete] (U) 1. August 2002 Training Proposal (U) [Delete] [delete] On August 12, 2002, a week and a half after the OLC issued its two legal opinions, the [delete] sent JPRA Chief of Staff Lt Col Baumgartner and JPRA OSO Chief Christopher Wirts a draft memorandum outlining the [delete] request for additional JPRA training support. [253] [Big delete] [254] The draft requirement continued: [I]nformation that your organization has already provided, coupled with our officers' experience confirms our opinion that JPRA assets are more than capable of providing the necessary training that we need to start our initiatives. Basically, [Big delete] consisting of academic training and practical exercises aimed at learning both interrogation and resistance to interrogation techniques. [255] [delete] [delete] [delete] draft described four areas of "training [sought] from JPRA:" (1) "Academic Training," including "legal perspectives," [big delete] (2) "Resistance Training," including academic lessons in interrogation and resistance to interrogation techniques, such as psychological or physiological pressures; (3) "Practice Interrogations/Resistance to [] Interrogations/[F]eedback," including practice on "[p]hysical pressures techniques and training"; and (4) "Review and Training of Resistance Training Operating Instructions." [256] [Big delete] [Big delete] [Big delete] (U) The Operating Instruction used to implement DOD directive 1300.7 are those instructions that JPRA uses to implement its SERE-school training program. 2. JPRA Creates Project 22B (U) [Delete] [delete] Also on August 12, 2002, a meeting was held at JPRA headquarters "to discuss future JPRA support to [delete] actions to obtain actionable intelligence from Detained Unlawful Combatants." [266] A memo from JPRA's Co Col Randy Moulton describing that meeting reported that the JPRA training performed [delete] to date had been well-received and that "information and training that JPRA has provided [delete] coupled with feedback from the [delete] confirmed that JPRA assets are more than capable of providing the necessary training necessary to support their initiative." [267] [Big delete] [Delete] [delete] Col Moulton directed his team to develop a Concept of Operations (CONOP) for continued support, stating that the JPRA CONOP would be staffed through the Joint Staff and Office of the Secretary of Defense "to ensure proper oversight and approval prior to execution of the plan." [269] A draft of that CONOP, circulated later in the year, described how JPRA planned to fulfill [delete] requirement for training, including how they would facilitate the practice interrogation sessions - i.e., with JPRA members "portray[ing] resisters of different skill levels" and [delete] interrogators "demonstrat[ing] the ability to use exploitation methods and concepts taught ... as well as us[ing] authorized physical pressures." [270] Among the risks described in that CONOP was "injury [to JPRA personnel] as a result of physical pressures administered by [delete] during the training." [271] (U) At the August 12, 2002 meeting, JPRA created a special program which it called Project 22B, to "limit JPRA distribution of sensitive activities in support of [delete]." [272] [Delete] In his memo, Col Moulton wrote that protecting information associated with these activities was "of paramount concern" to [delete] and noted that [delete] anticipates a congressional investigation into this activity at some time in the future." [273] _______________ Notes: 110. George Tenet, At The Center Of The Storm (New York: Harper Collins Publishers 2007) at 241. 111. Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 112. John Bellinger answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 113. Secretary Rice said that in 2002-2003, she "participated in a number of discussions of specific interrogation techniques proposed for use by the CIA" Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 114. Ibid. 115. In a September 6, 2006 speech, President Bush stated that since September 11, 2001, a "small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency." The President stated that the CIA used "an alternative set of procedures" in interrogating the detainees. According to the President, the CIA techniques "were tough, and they were safe, and lawful, and necessary." The President identified Abu Zubaydah as one detainee who was subject to the CIA's alternative techniques. Press Briefing with President George W. Bush (September 6, 2006); see also Tenet, At The Center Of The Storm at 241. 116. Current and Projected National Security Threats, Senate Select Committee on Intelligence, 110th Cong. (February 5, 2008). 117. Justice Department's Office of Legal Counsel, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (February 14, 2008). 118. Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 119. John Bellinger answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 120. Jane Mayer, The Experiment, The New Yorker (July 11-18, 2005); Jane Mayer, The Black Sites, The New Yorker (August 13, 2007) ("According to an eyewitness, one psychologist advising on the treatment of Zubaydah, James Mitchell, argued that he needed to be reduced to a state of 'learned helplessness.' (Mitchell disputes this characterization)."); Katherine Eban. Rorschach and Awe, Vanity Fair Online (July 17, 2007), available at http://www.vanityfair.com/politics/features/2007107Itorture200707. 121. Committee staff interview of James Mitchell (July 10, 2007); Letter to Senator Carl Levin (June 22, 2007). 122. Committee staff interview of FBI Special Agent (December 21, 2007). 123. Ibid. 124. Ibid. 125. DoJ IG Report at 68. 126. Committee staff interview of James Mitchell (July 10, 2007); Committee staff interview of FBI Special Agent (December 21, 2007). 127. Committee staff interview of FBI Special Agent (December 21, 2007). 128. Ibid. 129. [Big delete] 130. U.S. Department of Justice, Office of the Inspector General, A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq (May 2008) at 68 (hereinafter "DoJ IG Report''). 131. Ibid. at 69. 132. Committee staff interview of FBI Special Agent (December 21, 2007). 133. DoJ IG Report at 69; see also CounterResistance Strategy Meeting Minutes at 4. (Months later, in an October 2, 2002 meeting with DoD officials at Guantanamo Bay, Chief Counsel to the CIA's CounterTerrorist Center (CTC) reportedly Jonathan Fredman confirmed that "[w]hen the CIA has wanted to use more aggressive techniques in the past, the FBI has pulled their personnel from theater.") 134. DoJ IG Report at 73. 135. Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 136. Committee staff interview of Christophe (January 4, 2007); see also JPRA/OSO, [delete] Concept of Operations for JPRA support to anticipated [delete] requirements (October 3, 2002). The memo states, [delete] has made informal requests for JPRA support to prepare [delete] to use exploitation/interrogation techniques ... Five separate meetings have been conducted between [delete] and JPRA representatives..." 137. [delete] Memo from Col John Prior II to JPRNCC (Col Randy Moulton), Request from [delete] for Interrogation Training Support (June 20, 2002). 138. lbid. 139. [delete] Initially, the senior SERE psychologist could not recall if he provided this assistance to the [delete] while he was still working at JPRA or if the assistance had occurred after he left JPRA. After he left JPRA in 2002, the senior SERE psychologist began working as a contractor to [delete] but was restricted from discussing the nature of his work with the Committee. Committee staff interview of Bruce Jessen (November 13, 2007). 140. [delete] Memo from [delete] Focal Point Branch [delete] to Joint Staff, J-3/DDIO, Special Activities Branch, (U) Request for JPRA Personnel/or Training (June 17, 2002) (hereinafter [delete] Request for JPRA Personnel for Training (June 17, 2002)"). 141. [delete] Request for JPRA Personnel/or Training (June 17, 2002). 142. [delete] Fax cover sheet from [delete] to Christopher Wirts (via Colin Junkins) (June 18, 2002). 143. Committee staff interview of William J. Haynes II (April 25, 2008) at 40. 144. [delete] Request for JPRA Personnel or Training (June 17, 2002). In a draft of the request written by JPRA's OSO Chief Christopher Wirts and sent to [delete] on June 14, 2002, Mr. Wirts identified the same topics for training. Mr. Wilts explained to his point of contact at [delete] that their ability to support the request was hindered by Dr. Jessen's availability, who Mr. Wilts described as "critical in providing the degree of support that [delete] is requiring." Memo from Christopher Wirts (via [delete] to [delete] Support to Operation Enduring Freedom (OEF) (June 14, 2002). 145. [delete] Request for JPRA Personnel for Training (June 17, 2002). 146. [delete] Memo from Col John Prior II to JPRA/CC (Col Randy Moulton), Request from [delete] for Interrogation Training Support (June 20, 2002). 147. [delete] Memo from Col John Prior II to JPRA/CC (Col Randy Moulton), Request from [delete] for Interrogation Training Support (June 20, 2002). Although Col John Prior told the Committee that he could not recall the June 20, 2002 memo, JPRA Commander Col Randy Moulton recalled receiving it at the time. Since the Committee's interview of Col Prior, the Department of Defense has provided the Committee with a copy of the memo that was signed by him. 148. [delete] Joint Staff Action Processing Form, (U) JPRA Personnel for Training (June 27, 2002). 149. Testimony of Joseph Witsch (September 4,2 007) at 63-64,69. 150. Ibid. at 64-69. 151. [delete] Memo from Joseph Witsch to Col Randy Moulton and Christopher Wirts, Exploitation Training for [delete] [delete] (July 16, 2002). 152. Ibid. 153. Committee staff interview of Gary Percival (July 25, 2007). 154. Testimony of Joseph Witsch (September 4, 2007) at 69. 155. Memo from Dr. Percival to JPRA CC (Col Moulton), Comments on Physical Pressures used for CoC Training (June 18, 2004). 156. Testimony of Joseph Witsch (September 4, 2007) at 69. 157. [delete] Memo from Joseph Witsch to Col Randy Moulton and Christopher Wirts, Exploitation Training for [delete] [delete] (July 16, 2002). 158. Ibid. 159. Ibid. (emphasis in original). 160. Testimony of Joseph Witsch (September 4, 2007) at 75. 161. Counter Resistance Strategy Meeting Minutes at 4. 162. [delete] Memo from Joseph Witsch to Col Randy Moulton and Christopher Wirts, Exploitation Training for [delete] [delete] (July 16, 2002). 163. Ibid. 164. Ibid. 165. Ibid. 166. Ibid. 167. Committee staff interview of Bruce Jessen (July 11, 2007). 168. Ibid. 169. Ibid.; Letter to Chairman Levin (June 22, 2007). 170. Committee staff interview of Bruce Jessen (November 13, 2007). Lawyers for Dr. Mitchell informed the Committee that he shares the same view as his colleague, Dr. Jessen. 171. Committee staff interview of Bruce Jessen (November 13, 2007). 172. Committee staff interview of James Mitchell (July 10, 2007); Committee staff interview of Bruce Jessen (July 11, 2007). 173. Committee staff interview of James Mitchell (July 10, 2007); Committee staff interview of Christopher Wirts (January 4, 2008). 174. Email from Lt Col Dan Baumgartner to Col Randy Moulton et al. (July 25, 2002). 173. DoD!G, Interview of Richard Shiffrin (July 24, 2006) at 6. 176. Committee staff interview of Richard Shiffrin (May 22, 2007). 177. SASC Hearing (June 17, 2008). 178. Ibid. 179. Committee staff interview of Lt Col Daniel Baumgartner (August 8, 2007); see also email from Col Moulton to [delete] (June 30, 2006) ("We [JPRA] initially received a call from OSD General Counscil (sic) requesting information about resistance techniques used against U.S. POWs. I believe this was early on in Operation Enduring Freedom. We were requested to provide that information within hours and were authorized by JFCOM to forward it to OSD.... Once we understood what OSD/GC was looking for, we provided a list of techniques.") 180. Memo from Lt Col Daniel Baumgartner to Office of the Secretary of Defense General Counsel, Exploitation (July 25, 2002). 181. Ibid. at 1. 182. Ibid. at 2-3. 183. Ibid. at 2; see also email from Lt Col Daniel Baumgartner to Col Randy Moulton et al. (July 25, 2002) (Thanking ''the 'exploitation answer stuckee' team" for "an outstanding job answering [] Mr. Hanes (sic) and Mr. Schiffren (sic) (OSD Dep GC for Intel) on their question 'what exploitation techniques have worked against Americans?") 184. Email from Lt Col Daniel Baumgartner to Col Randy Moulton et al., copying Darrell Venture (JFCOM Directorate of Operations) (July 25, 2002). 185. Committee staff interview of William 1. Haynes II (April 25, 2008) at 51, 59. 186. SASC Hearing (June 17, 2008). 187. Ibid. 188. Committee staff interview of Lt Col Daniel Baumgartner (August 8, 2007). 189. Memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel, Exploitation and Physical Pressures (July 26, 2002) at 1. 190. Ibid. 191. Memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel, Exploitation and Physical Pressures (July 26, 2002) at 1. 192. JPRA, Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees, attached to memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel (July 26, 2002). 193. Ibid. 194. Compare FASO Detachment Brunswick Instruction 3305.C (January 1, 1998) at E-5 with Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees at 3-4. 195. Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees. 196. Committee staff interview of William J. Haynes II (April 25, 2008) at 87. 197. Ibid. at 88. 198. JPRA, Operational Issues Pertaining to the Use of Physical/Psychological Coercion in Interrogation (undated), attached to memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel (July 26, 2002). 199. Ibid. 200. Ibid. 201. Ibid. 202. Ibid. 203. Ibid. 204.. Ibid. 205. Ibid. 206. Ibid. 207. Dr. Jerald Ogrisseg, Psychological Effects of Resistance Training (July 24, 2002), attached to memo from Lt Col Daniel Baumgartner to Office of the Secretary of Defense General Counsel (July 26, 2002) (hereinafter "Psychological Effects of Resistance Training'''). 208. Dr. Jerald Ogrisseg, the Chief of Psychology Services at the Department of the Air Force's Air Education and Training Command, told the Committee that he had accepted a position at JPRA prior to writing the memo but had yet to officially change jobs. Committee staff interview of Jerald Ogrisseg (June 26, 2007). 209. SASC Hearing (June 17, 2008). 210. Ibid. 211. Ibid. 212. Ibid. 213. Psychological Effects of Resistance Training 214. Psychological Effects of Resistance Training at 1. 215. Ibid. 216. Committee staff interview of Jerald Ogrisseg (June 26, 2007). 217. SASC Hearing (June 17,2008); Psychological Effects of Resistance Training at 2. 218. [delete] When providing this memo to the General Counsel's office, Lt Col Baumgartner stated: "While there is not much empirical data on the long term effects of physical pressures used in SERE schools (which fall well short of causing 'grave psychological damage'), the psychological staff at the Air Force SERE school makes some interesting observations [] that suggest training techniques can be very effective in producing compliance while not causing any long term damage." Memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel, Exploitation and Physical Pressures (July 26, 2002); Psychological Effects of Resistance Training at 2. 219. Committee staff interview of Jerald Ogrisseg (June 26, 2007). 220. Dr. Ogrisseg also explained that "[w]hile long-term psychological harm can occur from relatively brief distressing experiences, the likelihood of psychological harm is generally increased by more lengthy and uncertain detentions." Responses of Dr. Jerald Ogrisseg to Questions for the Record (July 28, 2008). 221. Committee staff interview of Jerald Ogrisseg (June 26, 2007). 222. SASC Hearing (June 17, 2008). 223. Committee staff interview of Lt Col Daniel Baumgartner (August 8, 2007). 224. According to Mr. Addington, he met "regularly" with a group of lawyers that included DoD General Counsel Jim Haynes, White House Counsel Alberto Gonzales, and the CIA General Counsel John Rizzo. This group that met regularly - which Mr. Addington said was referred to as the "War Council" by Mr. Haynes - also included OLC lawyers John Yoo and Tim Flanigan. According to Mr. Addington, the group of lawyers met about a "range of issues," including interrogation of enemy combatants in the war on terror. When Mr. Haynes was asked whether he had discussed "SERE techniques with [] Messrs. Gonzales, Addington, Rizzo, Yoo, or any of the other senior lawyers" he met with "regularly," Mr. Haynes testified to the Committee that he "did discuss SERE techniques with other people in the administration." These conversations occurred prior to the December 2, 2002 approval of aggressive interrogation techniques, including those derived from SERE, by the Secretary of Defense. See From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (June 26, 2008) (Testimony of David Addington); SASC Hearing (June 17, 2008) (Testimony of William J. Haynes II); The Terror Presidency at 22. 225. Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 226. The memo was leaked to the press in June 2004 and was rescinded by the OLC later that month. Memo from Assistant Attorney General Jay Bybee to White House Counsel Alberto Gonzales, Standards o/Conduct/or Interrogation under 18 U.S.C. §§ 2340-2340A (August I, 2002). 227. Ibid. 228. Ibid. 229. 18 U.S.C. § 2340(1) (2008). 230. Memo from Assistant Attorney General Jay Bybee to White House Counsel Alberto Gonzales, Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (August 1, 2002). 231. Former Assistant Attorney General for the OLC Jack Goldsmith, who rescinded the memo, criticized the First Bybee memo as legally flawed, redundant and one-sided, tendentious in tone, unnecessarily narrow in its definition of torture, and widely broader than necessary in its assessment of Presidential authorities. The Terror Presidency at 143-51. 232. The Second Bybee memo has been withheld from the Committee. 233. Sixth Decl. of Marilyn A Dorn, ¶ 56, American Civil Liberties Union, et al. v. Department of Defense, et al, No. 04-Civ. 4151 (January 5, 2007). 234. Sixth Decl. of Marilyn A Dorn, ¶ 62, American Civil Liberties Union, et al. v. Department of Defense, et al, No. 04-Civ. 4151 (January 5, 2007). 235. Letter from Assistant Attorney General William E. Moschella to Chairman of the Senate judiciary Committee Arlen Specter (February 1, 2005); see also The Terror Presidency at 150-151 (According to Jack Goldsmith, the First Bybee memo "analyzed the torture statute in the abstract, untied to any concrete practices" and then the Second Bybee Memo, "applied this abstract analysis to approve particular" interrogation techniques.) 236. DoJ IG Report at 101, fn. 73; see also From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (June 26, 2008) (prepared testimony of John Y00) ("OLC was asked to evaluate the legality of interrogation methods proposed for use with Zubaydah.") 237. DoJ IG Report. 238. John Bellinger answers to July 31,2008 written questions from Senator Carl Levin (September 12, 2008). 239. The remainder of the Second Bybee memo has not been released publicly. 240. Deputy Assistant Attorney General for the OLC John Yoo, who participated in the drafting of the Second Bybee memo, added that in the context of the Zubaydah interrogation, application of the federal anti-torture statute to the facts "depend[ed] not just on the particular interrogation method, but on the subject's physical and mental condition." From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (June 26, 2008). 241. From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (June 26, 2008). 242. Nomination of John Rizzo to be CIA General Counsel, Senate Select Committee on Intelligence, 110th Cong. (June 19, 2007). 243. Committee staff interview of Lt Col Daniel Baumgartner (August 8, 2007). 244. Committee staff interview of William J. Haynes II (April 25, 2008) at 88. 245. Ibid. at 104, 106; see also Redacted version of Memo from Assistant Attorney General Jay Bybee, Interrogation of [redacted] (August 1, 2002) (In the unredacted sections of the Second Bybee memo, the memo states: "Your review of the literature uncovered no empirical data on the use of these procedures, with the exception [redacted].") 246. John Bellinger answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 247. Jay Bybee answers to July 31, 2008 written questions from Senator Carl Levin (October 14, 2008). 248. From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (June 26, 2008). 249. Jay Bybee answers to July 31, 2008 written questions from Senator Carl Levin (October 14, 2008). 250. John Bellinger answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 251. Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 252. Ibid. 253. [delete] Memo from [delete] to Chief of Staff, JPRA (Lt Col Daniel Baumgartner) and Chief, Mission Support (Christopher Wirts), Request for Training Support (August 12, 2002) (hereinafter [delete] to JPRA, Request for Training Support (August 12, 2002)"). 254. Ibid. (emphasis added). 255. Ibid. 256. [delete] to JPRA, Request for Training Support (August 12, 2002). Mr. Wirts said that JPRA did not have the expertise to teach "legal perspectives" and in his discussions with [delete] about the training, [delete] indicated that JPRA would not be expected to teach that topic. Committee staff interview of Christopher Wirts (January 4, 2008). 257. [delete] to JPRA, Request for Training Support (August 12, 2002). 258. Ibid. 259. Ibid. 260. Ibid. 261. Ibid. 262. Ibid. 263. Ibid. 264. Ibid. (emphasis in original). 265. Ibid. 266. Memo from JPRA/CC (Col Randy Moulton) to JPRA J3/J7/PRA, [delete] Support to [delete]/Project 22B (August 13, 2002) at 1. 267. Ibid. 268. Ibid. 269. Ibid. 270. Memo from JPRA OSO, [delete] Concept of Operations for JPRA support to anticipated. requirements (October 3, 2002).
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