A still-classified report on the CIA's interrogation program established in the wake of 9/11 sparked a furious row last week between the agency and Senate Intelligence Committee chairwoman Dianne Feinstein. Al Jazeera has learned from sources familiar with its contents that the committee's report alleges that at least one high-value detainee was subjected to torture techniques that went beyond those authorized by George W. Bush's Justice Department.
Two Senate staffers and a U.S. official, who spoke on the condition of anonymity because the information they disclosed remains classified, told Al Jazeera that the committee's analysis of 6 million pages of classified records also found that some of the harsh measures authorized by the Department of Justice had been applied to at least one detainee before such legal authorization was received. They said the report suggests that the CIA knowingly misled the White House, Congress and the Justice Department about the intelligence value of detainee Zain Abidin Mohammed Husain Abu Zubaydah when using his case to argue in favor of harsher interrogation techniques.
The committee's report, completed in 2012, must go through a declassification review before any part of it may be released, but conflicts between the CIA — the original classification authority for the documents on which the report is based — and the Senate Intelligence Committee have complicated the process. Even if the report was declassified, releasing it would require Senate approval, and it's not clear that Feinstein, a California Democrat, could muster enough votes to do so. President Barack Obama last week expressed support for releasing the report "so that the American people can understand what happened in the past … That can help guide us as we move forward."
CIA Director John Brennan delivered a rebuttal to the report last June, more than four months after a deadline imposed by the Intelligence Committee. The 120-page CIA response, which addresses what the agency says are flaws in the Senate report, also remains classified.
The Intelligence Committee probe began in 2009 after allegations that detainees had been tortured in CIA captivity after the 9/11 attacks. Feinstein has said that a CIA internal review contradicts statements previously made by the agency, but Brennan insists that the committee never should have seen documents assembled by former CIA Director Leon Panetta — which Panetta claims was not a review — because they contain sensitive material protected by executive privilege.
The CIA alleges that Senate staffers walked out of a secure facility in Northern Virginia in possession of documents they were not authorized to access. Feinstein and Sen. Mark Udall, D-Colo., have accused the CIA of monitoring the computers the agency had set up for Senate investigators to review the classified documents related to the agency’s rendition, detention and interrogation program. The Justice Department and FBI are now reviewing the matter.
Even before accessing the documents, committee staffers received crucial information in a briefing from former FBI agent Ali Soufan in early 2008, according to Al Jazeera’s sources. Soufan — who now runs a private security and intelligence consultancy — told the staffers that he had kept meticulous notes about the methods used by a psychologist under CIA contract to interrogate Abu Zubaydah at a CIA black site in Thailand after his capture in Pakistan in March of 2002. Soufan's account, the staffers say, shows that torture techniques were used on Abu Zubaydah even before some had been sanctioned as permissible by the Bush administration.
Soufan described his briefing of Intelligence Committee researchers in his memoir, “The Black Banners.”
“In early 2008, in a conference room that is referred to as a sensitive compartmented information facility (SCIF), I gave a classified briefing on Abu Zubaydah to staffers of the Senate Select Committee on Intelligence,” Soufan wrote. “The staffers present were shocked. What I told them contradicted everything they had been told by Bush administration and CIA officials. When the discussion turned to whether I could prove everything I was saying, I told them, ‘Remember, an FBI agent always keep his notes.’ ”
The committee tried to gain access to Soufan’s notes — then in possession of the CIA and FBI — after it launched a review of the agency’s detention and interrogation program in 2009. But Senate investigators were told, according to Al Jazeera’s sources, that Soufan’s notes were missing and could not be found in either the FBI’s or CIA’s computer system, where other classified records about the interrogation program were stored.
More than a year later, the notes ended up with the Senate Intelligence Committee, although it's not clear whether they were turned over to committee investigators by the CIA or FBI or if they were in the cache of documents taken by investigators from the secure facility in Northern Virginia in 2010, which Senate staffers refer to as the Panetta review.
Two Senate staffers told Al Jazeera that the Panetta documents question the Bush administration claims about the efficacy of Abu Zubaydah’s torture, and the staffers noted that some of the techniques to which he was subjected early in his captivity had not yet been authorized.
Christopher White, a CIA spokesman, declined to answer questions about the Senate report’s conclusions on Abu Zubaydah, Soufan’s notes or Panetta’s documents.
A large section of the Intelligence Committee report is devoted to the interrogation of Abu Zubaydah, according to Al Jazeera’s sources. Abu Zubaydah was the first high-value detainee captured after 9/11 and the first subjected to the agency’s enhanced interrogation program, and claims about his case were later used by the Bush administration to justify new guidelines for those interrogation techniques.
A few weeks before the 2009 announcement of the Senate Intelligence Committee’s investigation, Abu Zubaydah’s attorney Brent Mickum was invited to meet with committee staffers in a secure conference room in the Senate Hart Office Building in Washington.
Mickum recalled in an interview with Al Jazeera that committee staffers were interested in Abu Zubaydah’s recollections. “The committee was talking about torture and whether it was effective,” Mickum said. “I was able to relate to them what Abu Zubaydah told me. We talked about where he was tortured. I told them where we thought he was. I told them that the government confirmed he was never a member of Al-Qaeda. The drawings were then passed around the room.”
Mickum and his co-counsel, Amy Jacobsen, presented to the committee staffers a set of ink drawings on yellow legal paper marked top secret by the CIA. Abu Zubaydah, they said, made the sketches to depict his torture and the torture of two other high-value detainees.
One of the highly detailed drawings, according to knowledgeable intelligence officials, depict Abu Zubaydah being waterboarded.
Mickum, who holds a top-secret security clearance, said he could not discuss the contents of the drawings because they are classified. But he said the details were “very impressive … right down to the eyeholes on the leg and hand restraints.”
Senate staffers told Al Jazeera that Abu Zubaydah’s drawings were used in the report’s narrative but that the CIA objected to including copies of the images as exhibits. After the Senate Intelligence Committee voted 9 to 6 in December 2012 to approve the report, copies of the 6,300-page document were sent to the White House, the State Department, the Office of the Director of National Intelligence, the Justice Department and the CIA.
The Congressional Record says the report is divided into three volumes: a comprehensive history of the interrogation program, the value of the intelligence it revealed and the claims about its nature and effectiveness made by the CIA to Congress, the Justice Department and the media.
When Panetta briefed CIA employees on March 16, 2009, about the Senate Intelligence Committee’s review, he said Feinstein and her Republican counterpart, Kit Bond of Missouri, had “assured” him “that their goal is to draw lessons for future policy decisions, not to punish those who followed guidance from the Department of Justice.”
But now that some of the report’s conclusions suggest that some of the techniques used on Abu Zubaydah and other captives either went beyond what was authorized by the Justice Department or were applied before they had been authorized, the congressional staffers and U.S. officials who spoke to Al Jazeera said CIA officials are seeking further assurances against any criminal investigation.
Thus far, no such assurances have been given, according to Al Jazeera’s sources, nor is there any indication that the Senate Intelligence Committee’s report would prompt a criminal investigation.
Chris Anders, senior legislative counsel for the American Civil Liberties Union, told Al Jazeera he's not surprised by the CIA's response, because many of those involved in the creation of the interrogation program still work at the agency and may fear being placed in legal jeopardy.
“Whatever is in the report is big enough and significant enough that the CIA has fought tooth and nail to keep it buried,” Anders said. “If what comes out in this report is as bad as some senators have said, it’s going to require a broader and deeper discussion about what took place, and it will be up to the president and Congress to lead the country through it, figure out what it means and how we need to respond to clean it up.”
Panetta, who also did not return calls or emails seeking comment, announced in 2009 that he, too, planned to review the agency’s detention and interrogation program. He announced the formation of a Director’s Review Group for Rendition, Detention, and Interrogation, whose investigation would run parallel to the one being conducted by the Senate Intelligence Committee.
“Peter Clement, a senior leader from our Directorate of Intelligence, will head this new unit, which will have a small number of officers from across the agency, including the National Clandestine Service,” Panetta’s memo said.
That review group was disbanded and never completed its work, according to the U.S. official and the Senate staffers who spoke on condition of anonymity.
Sen. Martin Heinrich, D-N.M., attempted to get Brennan to go on the record during a congressional hearing in January to explain why the Panetta review group did not finish its work.
“I’ll be happy to address that question at the time when the committee leadership requests that information from me,” Brennan said.