Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority and the CIA: Part 3

Below you will find the third in our running comparison of broad areas of agreement and disagreement as between the Executive Summary to the Senate Intelligence Committee's Study on the CIA's Detention and Interrogation Program, the report by the Committee's Minority, and the response by the CIA itself.   The Study, you'll recall, sets forth twenty broad "findings and conclusions," many of which the Minority and the CIA address. Our first two posts covered the SSCI's first eight findings; here is a discussion of findings nine through twelve.

Committee Conclusion #9: The CIA impeded oversight by the CIA’s Office of Inspector General.

The Study observes that, for example, the CIA did not brief the Office of the Inspector General (“OIG”) until after a detainee had died, “by which time the CIA had held at least 22 detainees at two different CIA detention sites.” And while the Inspector General thereafter investigated and conducted oversight, “CIA personnel provided OIG with inaccurate information on the operation and management of the CIA’s Detention and Interrogation Program, as well as on the effectiveness of the CIA’s enhanced interrogation techniques.” The leadership played a role here, too. “In 2005, CIA Director Goss requested in writing that the inspector general not initiate further reviews until reviews already underway were completed.”  Likewise, “[i]n 2007, Director Hayden ordered an unprecedented review of the OIG itself in response to the OIG’s inquiries into the CIA’s Detention and Interrogation Program.”

Minority Views as to Conclusion #9

The Minority pulls no punches here, calling Conclusion #9 “among the most serious charges the Study levels at the CIA. As such, the Study should back up this charge with clear and convincing evidence. In our opinion it not only fails in that effort, but the Study itself is replete with examples that lead to the opposite conclusion---that the CIA did not significantly impede” OIG oversight. The OIG itself never claimed that it had less than the legally-required “full and direct access to all information” needed to fulfill its duties.  To the contrary, it certified that it indeed had such access throughout all four semiannual reports it filed during the Interrogation Program’s lifespan. According to the Minority, the OIG likewise never complained to the intelligence committees about any CIA obstruction, as the OIG was required by law to do immediately upon encountering any. Instead, in 2006 Inspector General Helgerson testified that he undertook a comprehensive look at alleged cases of detainee abuse. And small wonder: the OIG’s reports speak of access to “more than 38,0000 pages of documents and …. more than 100 interviews” in one review of rendition, detention and interrogation practices. In another, writes the Minority, OIG personnel “had access to facilities and individuals responsible for managing and operating three detention sites.”  OIG officials were “able to review documentation on site, observe detainees through closed-circuit television or one-way mirrors, and the IG even observed the transfer of a detainee aboard a transport aircraft.”   With respect to CIA leadership, Director Goss never “directed” OIG to put off further reviews of the Program until others had been completed; in fact, for resource and performance reasons, his memorandum simply asked that a newly sought OIG inquiry be “rescheduled until mutually agreed-upon date.” [In a footnote, the Minority observes that the Study’s initial claim, that Goss “directed” the OIG in this regard, was altered in the Study’s final version---and changed to “requested in writing,”] As for Director Hayden, his request for a review “stemmed from a disagreement between CIA’s Office of General Counsel and OIG, regarding certain legal authorities undergirding the CIA’s detention and interrogation activities. Thus, the Director asked a Special Counselor to examine the legal interactions between the two offices, and to examine alleged instances of OIG bias against CIA officers. That process yielded a presentation to the Inspector General, as well as several recommendations to OIG---”a number of which were adopted by the Inspector General.”  The interaction thus appeared to bolster, not impede, internal oversight activities by OIG.

CIA Comment

The Agency’s rejoinder is along similar lines as the Minority’s. In his cover letter to SSCI Chairman Senator Dianne Feinstein, DCIA John Brennan writes that “the factual record maintained by the Agency does not support” the Study’s claim that the “Agency resisted internal and external oversight.” Another part of the Agency response, the summarized views of a specially-appointed Agency review team, says that the Study most “seriously diverge[s] from the facts and indeed, from simple plausibility” in its assertions about how “CIA dealt with others with regard to the CIA program”---internal overseers included. Elsewhere in the CIA’s submission, the CIA contends (again in a manner comparable to the SSCI Minority) that the Agency’s “engagement with the OIG over the years was robust,” that OIG personnel was obligated to complain to congressional overseers---but didn’t---about CIA obstruction, and that OIG in fact conducted “nearly 60 investigations on RDI-related matters.”  And while the CIA acknowledges CIA officers’ suspicions about the OIG’s “lack of objectivity,” the Agency also says “[m]any OIG investigations associated with the RDI program were initiated as a result of concerns expressed by Agency employees, evidence that employees believed they could reach out to OIG and have their views taken seriously.”  The Agency likewise rejects any suggestion that CIA leadership sought to hinder OIG activities, essentially for the same reasons as those cited by the majority. The Agency says its people generally furnished accurate information to OIG, with “rare exceptions.”  “There were,” writes the CIA, “two factual errors conveyed to OIG by CIA officers for the 2004 [detention] report that we did not rectify at the time,” but the errors do not suggest any pervasive lack of candor on the CIA’s part.

Committee Conclusion #10: The CIA coordinated the release of classified information to the media, including inaccurate information concerning the effectiveness of the CIA’s enhanced interrogation techniques.

The Study alleges that the CIA’s Office of Public Affairs ("OPA"), in conjunction with senior CIA officials, shared classified information on the Detention and Interrogation Program to members of the media. This, they claim, was done in part to counter public criticism of the program, to shape public opinion about enhanced interrogation techniques ("EITs") and to avoid potential congressional action to restrict the program’s authorities and budget. Furthermore, the disclosures happened when the program was still covert and before the full Committee was briefed on it. To highlight one instance, the Study produces an email written by the then-deputy director of the CIA’s counterterrorism center in 2005, wherein he writes that “we [the CIA] either get out and sell, or we get hammered, which has implications beyond the media.” This was done immediately before the same official was interviewed by a media outlet over the program. Finally, the Study repeats the claim that the information the CIA provided to the media regarding the program’s effectiveness and operation was inaccurate.

Minority Views as to Conclusion #10

In the eyes of the Minority, the Study is again parroting the false claim that the CIA released inaccurate information about the EITs’ effectiveness, a claim which they purport to debunk elsewhere. As for the Study’s claims about inappropriate media disclosures, the Minority suggests that the Study confuses authorized disclosures and unauthorized leaks. It notes that the National Security Council Policy Coordinating Committee designated the CIA as “the lead” on the “public diplomacy issue regarding detainees” on April 15th, 2005. Once that approval was given, they say, the CIA was authorized to independently determine what information related to the covert program could be released; White House approval was not needed. Furthermore, it is within the President’s discretion to decide which congressional members beyond the “gang of eight” can be briefed on the program, not the CIA’s. There is absolutely no requirement that the White House brief the full Committee as a precursor to declassifying certain information to the media. The Minority also points out that the Study provides no examples of the White House objecting to CIA activities concerning media disclosures. Also, in case the Study’s authors did not know, the Minority says, it is the explicit function of the CIA’s OPA to share classified information with select members of the media. This ignorance of the OPA was systematic, they claim, in that there was no effort by the Study to review established procedures at the body. Additionally, the Study does not provide the context for media inquiries that resulted in stories about the Detention and Interrogation Program. In response to the emails quoted in the report, the Minority reminds the Committee that specific comments made by CIA officials do not constitute Agency policy.

CIA Comment

The CIA takes a similar tack as the Minority, saying that while Agency did engage with the media on the RDI program, it did not do so in order to avoid oversight. Furthermore, the Agency did not launch any coordinated, systemic public relations campaign to garner support for the program. The CIA points to a series of concededly incomplete OPA documents, as proof of the fact that the vast majority of the CIA’s engagement with the media occurred as a result of press queries for Agency comments on information gleaned elsewhere. In responding to these, the CIA sought to safeguard sensitive intelligence as much as possible and to minimize inaccuracies that could harm the US government. While the CIA did meet with Tom Brokaw in April 2005, it was NBC who initiated contact, not the Agency. Furthermore, the CIA did not discuss with NBC the possibility of making first-time, classified disclosures, and no public disclosures of classified information were made in the final broadcast. Finally, Langley disagrees with the allegation that the information it provided to the public regarding the value of the intelligence gleaned from the program was inaccurate. The Agency also repeats the point made by the minority that, with White House approval, the CIA OPA is authorized to make disclosures to the media.

Committee Conclusion #11: The CIA was unprepared as it began operating its Detention and Interrogation Program more than six months after being granted detention authorities.

According  to the Study, the President authorized the CIA to covertly capture and detain individuals six days after the attacks of September 11th, but the Agency did not detain its first person until March 2002. Throughout the fall of 2001, the CIA developed the detention program, identifying possible locations of clandestine detention facilities, and reviewing the risks associated with such clandestine detention, eventually concluding that U.S. military bases were the best option for detention. However, with the capture of Abu Zubaydah imminent, CIA officials again considered their options as part of a desire to avoid declaring Abu Zubaydah to the International Committee of the Red Cross---a requirement if he was held on a U.S. military base. While a senior official acknowledged “certain gaps in our planning/preparations,” the CIA chose to present the president with its plan to clandestinely detain Zubaydah, which was eventually approved. In addition to lacking proper facilities, the CIA also lacked a plan for the disposition of detainees. The Study suggests that the CIA failed to coordinate with other agencies and departments in the U.S. government with interrogation expertise, and did not review its previous assessments of coercive interrogations, which had found “inhumane physical or psychological techniques are counterproductive.” After consultations with contract psychologists, the CIA ultimately adopted interrogation tactics modified from those used to train and prepare U.S. military personnel for conditions they may face if taken prisoner in countries that do not adhere to the Geneva Conventions. The CIA deployed personnel who lacked training and experience, and did not begin interrogation training until seven months after detaining Abu Zubaydah. By the time CIA Director George Tenet issued formal guidelines for interrogations and detention in January 2003, the CIA already had possession of 40 of the 119 eventual detainees.

Minority Views as to Conclusion #11

The Minority does not directly address Conclusion 11, but in the final page of their document, says “the Study concludes that the CIA was unprepared to initiate a program of indefinite, clandestine detention using coercive interrogation techniques, something we found to be obvious, as no element of our government was immediately prepared to deal with the aftermath of what had happened on September 11, 2001. " And although the Agency may have initially been caught off guard, "the rendition, detention, and interrogation program that the CIA eventually created - which EITs were only a small part - established a system of collection and intelligence validation that was unprecedented."

CIA Comment

This may be the conclusion with which the CIA most fully agrees. In his introductory remarks, CIA Director John Brennan concurs with the Committee’s conclusion, saying that “the Agency was unprepared and lacked core competencies to respond effectively” in the aftermath of 9/11 to an order to establish an unprecedented program of detention and interrogation. The Agency also agrees that it struggled to formulate a policy for removing detainees from detention facilities; failed to perform an analysis on the effectiveness of the EITs; allowed a conflict of interest to exist wherein the contractors who designed the EITs were also involved in assessing their effectiveness and the fitness of detainees; detained some individuals under a flawed interpretation of the CIA mandate; and failed to hold individuals accountable for poor performance. The CIA also addresses the charge that it was unprepared as one of the four major themes of its comment. The Agency notes that it was unprepared to initiate an RDI effort: it did not have a trained team of interrogators; it had little experience in handling, moving, and interrogating detainees and had no core competency in detention facility management; and the Agency faced the challenge of establishing this system when it was overwhelmed by other aspects of its response to the 9/11 attacks. Later, the CIA notes that it was the March 28, 2002 capture of Abu Zubaydah that prompted the CIA to draw upon previous discussion with the NSC and Department of Defense so as to formally structure an RDI Program. There is some pushback.  The CIA claims that the Committee's Study “tars” the Agency, by focusing inordinately on the mistakes made by the Agency in the detention effort's first few months, conflating distinct chapters in the program’s history. The CIA suggests its biggest mistake was its failure to immediately create a centrally managed office tasked with designing and disseminating operational guidelines for RDI and EIT activities. It was during this initial period that several instances of unauthorized activity occurred. The Agency admits that it took the death of Gul Rahman in November 2002 to “focus management’s attention.” The CIA does not assert that it corrected all problems in early 2003, and notes that resource constraints continued to affect the program throughout its duration.  Still, the CIA argues that the Program substantially improved from early 2003 onward---and that the improvement ought to matter in assessing the Agency's overall performance. Notably, among the Agency's own 8 recommendations for future operations is a suggestion the CIA should “Better plan covert actions by explicitly addressing at the outset the implications of leaks, an exit strategy, lines of authority, and resources.”

Committee Conclusion #12: The CIA’s management and operation of its Detention and Interrogation Program was deeply flawed throughout the program’s duration, particularly so in 2002 and early 2003.

The Study ticks off a number of management and operational failures.  Among other things, it alleges that the CIA kept few formal records of the detainees in its custody at COBALT, a facility that started operations in September 2002 and ultimately held more than half of the program’s 119 inmates. At COBALT, untrained officers often conducted “frequent, unauthorized and unsupervised” interrogations of detainees using “harsh, physical” techniques. The latter were not, and never became, part of the formal list of EITs. Most disturbingly, in November 2002, one of the detainees, Gul Rahman, was kept partially nude and chained to a concrete floor---and ultimately died of suspected hypothermia. The Study goes on to criticize the Agency, saying that it placed a junior officer “with no relevant experience” in charge of the COBALT facility, and that no one unit at CIA headquarters clearly was in charge of the detention and interrogation operations. As late as 2003, the CIA’s leadership and senior attorneys did not have a good understanding of COBALT, with some erroneously believing that no EITs were being used there. While CIA Director George Tenet did issue guidances in January 2003, problems, as well as a lack of clear authority, persisted. For instance, in December 2003, officials reported that the Agency was holding detainees in its facilities about whom it knew very little. Officers who were untrained and inexperienced were placed in interrogation and detention roles. To make matters worse, the CIA provided limited analytical and linguistic support to the onsite personnel, which negatively impacted intelligence collection. Indeed, the chief of CIA’s BLACK site himself complained about inexperience among assigned officers: “managers seem to be selecting either problem, underperforming officers, new, totally inexperienced officers or whomever seems to be willing and able to deploy at any given time,” resulting in “the production of mediocre or, I dare say, useless intelligence...” Finally, some officers assigned to the site had documented personal or professional problems, including histories of violence and “abusive treatment of others.” According to the Study, the CIA knew about these agents' histories before assigning them.

Minority Views as to Conclusion #12

The Minority does not provide a specific rebuttal to Conclusion #12. However, in another section, they do note that regarding the abuses, John Helgerson, then the CIA Inspector General, testified to the SSCI in February 2007 that “I'm happy to say that the processes worked properly. An Accountability Board was held. The individuals were in fact disciplined. The system worked as it should.” In an addendum, they also note that the Study provided no “contribution” to the issue because it did not recommend new interrogation protocols. They also pointed out that the practices ended almost a decade ago under President Bush.

CIA Comment 

The Agency says the Study is correct, to the extent that some CIA interrogators used unauthorized techniques, that it detained some people under a flawed legal rationale, that it was unprepared to conduct an RDI effort and that it inadequately developed and monitored its initial activities. However, the CIA here emphasizes the word “initial.” There's more to the story.  Indeed, the Agency asserts that while the “first chapter” of its program had “serious shortcomings,” it argues that the Study conflates “distinct chapters” of the program. While it took the unfortunate death of Gul Rahman in November 2002 to “focus management’s attention,” the CIA says it quickly centralized control of and accountability for the detention facilities within a single office. This improved functioning. It also developed guidelines for operating CIA detention facilities only four months after it “accepted” its first detainee. Significant limitations put on the Agency’s ability to run the facilities included a need for secrecy and a dearth of qualified personnel. Resource constraints did dog the program, Langley admits, and the Agency never did put the facilities under the dedicated management of more senior officers nor bring the facilities up to standard. While there were some personnel problems, the “vast majority” of officers involved were “solid performers and were well trained.” In short, the Agency has assessed its past mistakes and taken them into account in making guidelines for the future.