Dents in the “Golden Shield”: the CIA’s Conflict of Interest in Classifying Evidence of Torture

Last week, military commission attorneys for the defendants in the September 11 trial asked President Obama to declassify evidence of their clients’ torture in CIA custody.  The attorneys argued that the government’s censorship of the defendants’ descriptions of their own treatment violates the Convention Against Torture, and makes it impossible to prepare a constitutionally adequate defense against a death sentence.

Similarly, last April, the Constitution Project’s Task Force on Detainee Treatment (for which I was staff investigator) unanimously concluded that:

acts of torture, war crimes, and crimes against humanity are not legitimate “intelligence sources and methods” under the National Security Act, and evidence of these acts cannot be properly classified, unless their disclosure would endanger specific individuals or violate specific, valid, agreements with foreign countries.

The Task Force found that ongoing secrecy about torture prevented the United States from complying with its obligations under the Convention Against Torture. It called on the Executive Branch to declassify several key documents, including a 6000 page report on the CIA program by the Senate Select Committee on Intelligence (SSCI), and stop censoring former CIA detainees’ descriptions of their own treatment.

The White House has not followed any of these recommendations. Instead, it has remained publicly neutral–which in practice means deferring entirely to the CIA. The CIA opposes the release of the SSCI report, and takes the position that the details of individual detainee’s treatment in its custody are classified.

 A few pieces of evidence about the medical condition of former CIA detainees recently emerged from the military commissions despite these restrictions. At a hearing last week, a lawyer for September 11 accused Ammar al-Baluchi said Baluchi’s medical records showed he suffered a head injury in CIA custody that caused hallucinations, headaches, and memory loss. Khalid Sheikh Mohammed’s attorney petitioned the court for permission to photograph scars on Mohammed’s wrists and ankles that he allegedly sustained in CIA custody, and to call medical witnesses to testify about his condition.

Ramzi Binalshibh has made repeated allegations of guards disrupting his sleep with noise and “vibrations,” which military prosecutors suggested might be delusions. In response, Binalshibh’s counsel offered evidence from a military psychiatrist who found that Binalshibh was not delusional, but “may be overreacting to sound stimulus due to past experiences.” Binalshibh’s actual diagnosis is redacted.

Months before, a military mental health board found that Abd al Rahim al-Nashiri, the accused mastermind of the U.S.S. Cole bombing, is competent to stand trial but suffers from posttraumatic stress disorder and depression. But the experiences that led to these symptoms are classified.

Even more secrecy surrounds the past treatment and current condition of former CIA detainees who are not facing military commissions charges. According Abu Zubaydah’s counsel, for example, Zubaydah’s torture exacerbated a prior head injury and caused “permanent brain damage and physical impairment,” including hundreds of seizures, headaches, hypersensitivity to sound, and memory loss. But they cannot reveal the details of his medical condition.

When the CIA was seeking legal authorization for the black site program from the Office of Legal Counsel (OLC), the Agency assured OLC that:

The limited public information about former high value CIA detainees’ medical conditions contradict these claims, as do high value detainees’ accounts of abuse to the Red Cross. The reliance on health professionals’ monitoring of interrogations to ensure detainees’ “safety” also conflicts with the most fundamental principles of medical ethics. The World Medical Association, American Medical Association, and United Nations prohibit clinicians from monitoring interrogation sessions where torturous or cruel methods are used, which they regard as a form of complicity in torture. As the Constitution Project Task Force found, “[h]ealth professionals cannot ethically condone any deliberate infliction of pain and suffering on detainees, even if it falls short of torture or cruel treatment.” (Chapter 6 of the Constitution Project Task Force Report includes much more information on the ethical problems with health professionals’ involvement in interrogation–including allegations on psychologists’ role in designing the CIA interrogation program and personally waterboarding detainees.)

Detainees’ medical records and accounts of their own treatment would provide much more definitive proof that the CIA misstated the facts to the OLC, and that medical monitoring provided no real safeguard against torture. So would the release of the Senate Intelligence Committee’s report on the CIA program. According to a document recently released by Senator Mark Udall of Colorado, the SSCI report contains a 128-page section on “discrepancies between the factual record” and information that the CIA provided to OLC.  

The CIA has responded that there was no evidence “that any information was known to be false when it was provided,” and no evidence that accurate information “would have altered OLC’s key judgments” about the legality of its interrogation methods.  But OLC documents, particularly from 2004 onwards, repeatedly say that their legal advice about interrogation is “based on, and limited by” the CIA’s factual assertions. Acting OLC head Steven Bradbury wrote in 2005 that the CIA’s representations about medical monitoring were “essential” to his conclusion that the CIA techniques did not rise to the level of torture even when used in combination. Bradbury’s opinions also gave great weight to the CIA’s claims that “this program is largely responsible for preventing a subsequent attack on the United States,” and quoted at length from CIA documents touting the program’s successes. We now know that many of those claims were false, and many others are unsupported by the public record. According to Senators, the SSCI report proves far more conclusively that the CIA misrepresented the efficacy of “enhanced interrogation” to both Congress and the Department of Justice. 

Former OLC head Jack Goldsmith has written that the CIA regarded the OLC memos as a “golden shield” against liability for brutal treatment of detainees. If the Senate report proves that the CIA’s legal shield rested on a foundation of false factual claims by the same agency, it will weaken the CIA’s legal defense of its treatment of prisoners. At this point, criminal investigations and prosecutions are a very remote risk–but disclosure would also greatly embarrass the individuals responsible and the CIA as a whole.

These are not valid justifications for secrecy, however. The Executive Order that governs classified information forbids agencies from keeping information classified in order to “conceal violations of law” or “prevent embarrassment to a person, organization, or agency.” The White House needs to enforce this prohibition, enforce the Convention Against Torture, and finally let the truth come out.

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“You can’t gag somebody and then want to kill them”

On Tuesday, October 22, the lawyers for the September 11 accused argued that the Guantanamo military commissions’ protective order violates the United Nations Convention Against Torture. The protective order states that the defendant’s “observations and experiences” of torture at CIA black sites are classified. Defense counsel say that this violates the Convention Against Torture’s requirement that victims of torture have “a right to complain” to authorities in the countries where they are tortured, and makes the commission into “a co-conspirator in hiding evidence of war crimes.”

It is not only the defendants’ lawyers who object to the protective order. The ACLU has called the restrictions on detainees’ testimony “chillingly Orwellian.” Earlier this year, the Constitution Project’s bipartisan, independent Task Force on Detainee Treatment (for which I served as staff investigator) found that the military commissions’ censorship of detainees’ descriptions of their own torture could not be justified on grounds of national security, and violated “the public’s First Amendment right of access to those proceedings, the detainees’ right to counsel, and counsel’s First Amendment rights.” This month, the European Parliament passed a resolution that called on the United States “to stop using draconian protective orders which prevent lawyers acting for Guantánamo Bay detainees from disclosing information regarding any detail of their secret detention in Europe.”

All of this must be somewhat embarrassing to military prosecutors, who adopted the motto, “Fairness, Transparency, Justice” for the reformed commissions in 2011. But they argue that the judge has no choice but to defer to the CIA on matters of classification.

President Obama has increasingly done the same. Early in his presidency, he was sometimes willing to override the intelligence community on secrecy matters. In April 2009, over the CIA’s objections, Obama declassified four Office of Legal Counsel (OLC) opinions that described in graphic detail the brutal techniques that the CIA used against captives after September 11, because in his judgment their release was “required by the rule of law.”

But today, the administration takes the position that the release of the OLC memos only declassified the CIA’s use of torturous interrogation techniques “in the abstract.” The details of any individual detainee’s treatment in CIA custody are still top secret. The CIA claims this is necessary because disclosures about individual interrogations would “provide future terrorists with a guidebook on how to evade such questioning,” and “provide ready-made ammunition for al-Qa’ida propaganda.”

Based on these arguments, in case after case, courts have denied Freedom of Information Act requests for CIA documents about the torture program, and denied torture victims’ ability to sue for damages. To give only a few examples: the CIA Office of the Inspector General (OIG) wrote a 98-page report on the homicide of Manadel al-Jamadi, the CIA “ghost detainee” detainee whose corpse is shown in several of the Abu Ghraib photographs. The CIA successfully argued that every single sentence of that report, and eleven other OIG reports on abuses in its detention and interrogation program, is classified. Every lawsuit filed in U.S. court by victims of CIA “rendition” to torture has been dismissed on national security grounds–including suits brought by detainees now widely acknowledged to have been completely innocent.

Most of the civil suits challenging official secrecy about CIA torture have ended. But the issue will not go away so easily in the Guantanamo military commissions, because the U.S. government has two conflicting objectives. The prosecution is trying to execute six former high value CIA detainees for their role in September 11 and the bombing of the U.S.S. Cole. It is also trying to conceal the details of defendants’ torture in CIA custody, and its lasting medical and psychological effects.

This is a problem, because the defendants’ torture is the most crucial factor weighing against a death sentence. Cheryl Bormann, the lawyer for defendant Walid bin Attash, argued in court Wednesday that “[y]ou can’t gag somebody and then want to kill them….As a death-penalty lawyer, and under the Eighth Amendment, I’m required to investigate every aspect of mitigation.” But “[e]verywhere I turn in investigating this issue, we hit a brick wall. And we hit a brick wall in large part because of the classification regime that we operate under.” Borman said, “[i]f you really want to have a fair trial and execute them, then you have to ungag them.”

Prosecutor Clay Trivett argued that the defendants’ attempt to disclose the details of their torture was a form of “graymail,” and that the military commission lacked jurisdiction to enforce the Convention Against Torture or override executive classification decisions. Trivett said that the defense would have an opportunity to present relevant evidence of their clients’ treatment during the mitigation phase of the case (in secret, presumably).

The defense argued that the CIA had a clear conflict of interest: “the same government agency that tortured Mr. Mohammad is seeking to silence Mr. Mohammad,” said Major Jason Wright, Khalid Sheikh Mohammed’s military defense lawyer. Bormann noted that the CIA had allowed former employee Jose Rodriguez to publish detailed factual claims about individual detainees’ interrogations, even as it censored defendants’ statements about their own treatment.

The only point that the prosecution, defense, and Judge James Pohl agreed on was that President Obama had the authority to resolve these issues. “If the President of the United States wants to declassify this information, he certainly can and we would not be having this discussion,” Pohl said.

But the Obama White House is unwilling to even acknowledge that authority, let alone exercise it. Asked what the White House role was in resolving classification disputes in military commissions, and whether anyone in the administration could override the CIA’s classification decisions, National Security Council spokeswoman Caitlin Hayden replied:

the White House does not play a role in determining the classification of filings at the military commissions, or the classification of information presented orally at commission hearings. I’d refer you to DOD, who is responsible for the military commissions process.

Hayden was equally noncommittal in response to questions on the White House’s position on the Senate Intelligence committee’s report on the CIA program.

Important New Details on the SSCI Report

Jane Mayer of the New Yorker has just posted former CIA General Counsel and newly confirmed DoD General Counsel Stephen Preston’s answers to questions submitted by Senator Mark Udall, about Senate Select Intelligence Committee’s secret 6000-page study on torture and the CIA’s response. Mayer’s article focuses on Preston’s answers, but Senator Udall’s questions are equally revealing. They provide a wealth of new details about a heated conflict between the CIA and the Senate intelligence committee that, until now, had largely occurred behind closed doors.

Udall writes that despite taking over six months to draft, the CIA response

largely responds to a small summary portion of the Committee Study, not to the material in the 300-page Executive Summary, or to the larger 6,300-page document. CIA personnel have confirmed that when the CIA response makes an affirmative statement about what the CIA believes is not in the Committee Study, the CIA response is merely referencing bullet points in a short 50-page section of the Committee Study that precedes the Executive Summary, not the larger Committee Study or its full Executive Summary. CIA personnel have further relayed that no one person at the CIA has read the full 6,300-page report.

Preston says that this was the result of a decision to take a “team approach” to the response. He does concede that “the Agency’s response does not constitute an encyclopedic treatment of the SSCI’s study.”

Another question confirms that the $40 million price-tag of the Senate report was largely due to restrictions that the CIA placed on the underlying documents. Udall writes that the CIA not only required the Committee to review documents off site in Virginia, but

 insisted that CIA personnel—and private contractors employed by the CIA—review each document multiple times to ensure unrelated documents were not provided by a small number of fully cleared Committee staff.

Preston points out that these arrangements predated him, and defends them as a sincere effort to protect national security. Personally, I cannot see the risk to national security in allowing the CIA’s oversight committee to review unrelated CIA documents. SSCI staff have very high-level clearances. And contrary to conventional wisdom about Congress, committee staffers have not leaked to the press about its report—at all. Virtually everything we know about it has come from Senators’ official statements or leaks from anonymous CIA officials.

Udall also notes that during the CIA’s document production, “the CIA removed several thousand CIA documents that the CIA believed could be subjected to executive privilege claims by the President,” without an actual decision by the President to invoke the privilege. Preston responds that the decision to withhold the documents did, in fact rest with the White House; the CIA simply set the documents aside for further review and “deferred to the White House” about whether or not they should ultimately be produced.  If so, that adds a new dimension to the Obama White House’s determination to “look forward” with regard to detainee treatment.

Udall’s questions also confirm important similarities between the SSCI report and the bipartisan, independent report that the Constitution Project’s Task Force on Detainee Treatment released in April. (I was the investigator for the Constitution Project’s report, and I have discussed its findings with Senate intelligence committee staff. One of the task force’s major recommendations was declassification of the SSCI report).

Udall writes that the SSCI report contains a 128-page section on the CIA’s factual representations to the Department of Justice about the interrogation program, which demonstrates that a great deal of inaccurate information was provided to the Department of Justice. The CIA has responded that “revisiting its factual representations and updating them as necessary…would not have had a practical effect” on the outcome of the Justice Department’s review.

Perhaps the Bush-era OLC would have found a way to uphold the legality of torture no matter what factual claims the CIA made. But many of the opinions that Udall cites from 2004 onwards say otherwise—particularly the May 2005 and July 2007 memos by acting OLC chief Steven Bradbury. Bradbury’s memos (1, 2, 3, 4) relied very heavily on now-discredited CIA’s claims that “enhanced interrogation” saved lives, and that sessions were carefully monitored by medical and psychological personnel to ensure that detainees’ suffering would not rise to the level of torture.

As chapter 7 of the Constitution Project report states, “[t]he purported efficacy of the techniques was essential to their authorization as legal by the Justice Department’s Office of Legal Counsel during the second Bush administration.”  For a detailed discussion of the problems with the CIA’s factual representations to OLC about the efficacy of torture, see pages 265-275 of the Task Force Report. That is only based on the public record; the Senate report’s discussion is likely far more detailed.

Bradbury relied equally heavily on the CIA’s assurances that personnel from the Office of Medical Services would carefully observe every interrogation, and intervene before a detainee was in danger of severe pain or suffering, or prolonged mental harm.  He wrote over and over that this was “essential” to his conclusion that techniques like waterboarding were legal. But as the Constitution Project wrote to the Senate in July,

It is a grave violation of professional ethics for doctors to participate in torture or cruel treatment, including by monitoring interrogation sessions where torturous or cruel methods are used…. Health professionals cannot ethically condone any deliberate infliction of pain and suffering on detainees, even if it falls short of torture or cruel treatment.

The Obama administration takes the position that former black site detainees’ medical diagnoses and medical records are classified, as are the detainees’ memories about their treatment in CIA custody. But even based on the limited public evidence, the CIA’s representations about lack of pain, suffering or harm to detainees are simply not credible. This is discussed at length in Chapter 6 of the task force’s report, particularly pages 222-235.

It is past time for the CIA to stop trying to conceal this evidence. And it is past time for reporters to ask the White House why President Obama is letting them.