Media outlets have repeatedly reported on the recently released CIA document detailing briefings members of Congress and staff received about harsh interrogation techniques, including what and when House Speaker Nancy Pelosi (D-CA) and other congressional Democrats knew about those techniques, but have largely ignored whether members were told there was significant disagreement within the administration regarding the legality and efficacy of these techniques. The issue is crucial to assessing whether congressional Democrats consented to the methods, as prominent Republicans and media conservatives claim. In the absence of full information, there can be no consent, a point the media have largely ignored in their coverage of the issue. If, as the evidence suggests, Congress was not told that experts within the administration strongly disputed the legality and efficacy of the methods, then the alleged failure on the part of members of Congress to object is irrelevant, and culpability for their alleged failure to respond lies with those who denied them information crucial to making a judgment about whether the administration was acting in the best interest of the nation.

For example, in its coverage of Pelosi's May 14 press conference, The Washington Post did not note that, during the press conference, Pelosi stated that Congress was not provided with “contrary opinions within the Executive Branch [that] concluded that these [enhanced] interrogation techniques were not legal.” Moreover, according to a Media Matters for America review* of the Post's coverage over the past month of what Pelosi knew about these techniques, the Post has not reported on, or raised, the question of whether Pelosi was informed of any dissent within the administration over the use of these techniques. Those who dissented include legal experts from the FBI and military who contested the Justice Department's determination that these EITs were legal; FBI and CIA counterintelligence experts who had reportedly expressed opposition to, and disputed the effectiveness of, the methods; and experts from the military's Survival, Evasion, Resistance, and Escape (SERE) program who similarly expressed concerns about the efficacy of subjecting detainees to harsh interrogation techniques modeled after ones used in the SERE program. Media Matters has previously documented a recent pattern of the media minimizing the Bush administration's role in the torture debate.

LEGAL OBJECTIONS

In a May 15 Washington Post article on Pelosi's press conference, staff writer Paul Kane wrote that Pelosi's critics “contend that top Democrats were aware that CIA interrogators were using waterboarding, or simulated drowning, and that their support waned only after its use became public and led to an outcry from human rights activists.” Similarly, in a May 15 Post analysis, national political correspondent Dan Balz wrote, “Conservatives say that, if Pelosi was so opposed to torture, she should have spoken out forcefully when she learned that these techniques were being employed. Her failure to do so then leaves her in a weakened position to protest now, they argue.” But Kane and Balz did not note that, during her press conference, Pelosi stated that she was not told “there were other opinions within the executive branch that concluded that these interrogation techniques were not legal.”

According to a May 2008 report from the Justice Department's office of the inspector general, following a meeting with FBI counterterrorism assistant director Pasquale D'Amuro “in approximately August 2002,” FBI Director Robert Mueller determined “that the FBI would not participate in joint interrogations of detainees with other agencies in which harsh or extreme techniques not allowed by the FBI would be employed.” D'Amuro recommended that the FBI not participate in part because “the use of the aggressive techniques failed to take into account an 'end game.' ” D'Amuro added, "[E]ven a military tribunal would require some standard for admissibility of evidence. Obtaining information by way of 'aggressive' techniques would not only jeopardize the government's ability to use the information against the detainees, but also might have a negative impact on the agents' ability to testify in future proceedings." Additionally, in a November 27, 2002, legal analysis, FBI deputy director Marion Bowman wrote that several of the enhanced techniques -- including "[u]se of wet towel and dripping water to induce the misperception of drowning" -- “are not permitted by the US Constitution” and may violate the federal torture statute.

Further, a November 20, 2008, Senate Armed Services Committee report, released jointly by chairman Carl Levin (D-MI) and ranking member Sen. John McCain (R-AZ), documented concerns the military services expressed, including that the enhanced techniques -- requested for use at Guantánamo Bay and authorized by Donald Rumsfeld on December 2, 2002 -- could not withstand legal scrutiny. On November 1, 2002, the Air Force commented on the request by expressing “serious concerns regarding the legality of many of the proposed techniques.” The Marine Corps stated in a memo that “several of the Category II and III techniques arguably violate federal law, and would expose our service members to possible prosecution,” and that the Corps “disagree[d] with the position that the proposed plan is legally sufficient.” The Army, in turn, replied that it “interposes significant legal, policy and practical concerns regarding most of the Category II and all of the Category III techniques proposed.” The committee report stated that a legal review subsequently initiated by Capt. Jane Dalton, legal counsel to the Joint Chiefs chairman, was "[q]uashe[d]" by Department of Defense general counsel Jim Haynes.

The committee report stated that Navy general counsel Alberto Mora testified to the committee that he told Haynes in December 2002 that he believed “some of the authorized techniques could rise to the level of torture,” and that the Guantánamo staff judge advocate's legal opinion underlying Rumsfeld's authorization was “an incompetent product of legal analysis.” In January 2003, according to the report, Mora gave Haynes a draft copy of a memo by Navy JAG Corps Cmdr. Stephen Gallotta, which summarized the military services' objections and concluded that several of the techniques may violate international legal standards, the federal anti-torture statute, and various articles of the Uniform Code of Military Justice, and “could be determined to be torture.” Mora also sent a draft memo to Haynes stating that “the majority of the proposed category II and all of the proposed category III techniques were violative of domestic and international legal norms in that they constituted, at a minimum, cruel and unusual treatment and, at worst, torture.”

Moreover, the staff judge advocates general for the Army, the Air Force, and the Navy all wrote memos that were highly critical of the Office of Legal Counsel memos that provided legal authority for the enhanced interrogations. Then-Deputy Air Force Judge Advocate General Jack Rives wrote in a February 5, 2003, memo that “some of the more extreme interrogation techniques, on their face, amount to violations of domestic criminal law and the UCMJ (e.g., assault). Applying the more extreme techniques during the interrogation of detainees places the interrogators and the chain of command at risk of criminal accusations domestically.” In a March 3, 2003, memo, then-Army Judge Advocate General Thomas Romig wrote: “I question whether this theory [that interrogators could use a defense of ”necessity" based on the president's commander-in-chief power] would ultimately prevail in either the U.S. courts or in any international forum. If such a defense is not available, soldiers ordered to use otherwise illegal techniques run a substantial risk of criminal prosecution or personal liability arising from a civil lawsuit."

EFFICACY OBJECTIONS

Objections from the FBI and CIA

In his May 13 testimony to the Senate Judiciary Administrative Oversight subcommittee (retrieved via the Nexis database), former FBI agent Ali Soufan stated that his interrogation team “gained important actionable intelligence” from their interrogation of Al Qaeda operative Abu Zubaydah using the informed interrogation approach, rather than the enhanced interrogation techniques. But Soufan said his team was repeatedly “removed” from questioning Zubaydah and replaced with interrogators who used the harsh techniques. Soufan also said: “Throughout this time, my fellow FBI agent and I, along with a top CIA interrogator who was working with us, protested, but we were overruled. I should also note that another colleague, an operational psychologist for the CIA, had left the location because he objected to what was being done.” Soufan added that "[a]s the Department of Justice IG report released last year states, I protested to my superiors in the FBI and refused to be a part of what was happening. The Director of the FBI, Robert Mueller, a man I deeply respect, agreed passing the message that 'we don't do that,' and I was pulled out." Soufan also discussed his objections to the use of harsh interrogation techniques in an April 22 New York Times op-ed.

Further, the Justice Department inspector general's May 2008 report, which detailed Mueller's determination that the FBI would not participate in harsh interrogations, stated that D'Amuro's recommendation was based on the fact that “he felt that these techniques were not as effective for developing accurate information as the FBI's rapport-based approach, which he stated had previously been used successfully to get cooperation from al-Qaeda members.” He added that he “did not think the [enhanced] techniques would be effective in obtaining accurate information”:

[D'Amuro] met with Director Mueller and recommended that the FBI not get involved in interviews in which aggressive interrogation techniques were being used. He stated that his exact words to Mueller were “we don't do that,” and that someday the FBI would be called to testify and he wanted to be able to say that the FBI did not participate in this type of activity. D'Amuro said that the Director agreed with his recommendation that the FBI should not participate in interviews in which these techniques were used. Based on D'Amuro's description of events and the dates of contemporaneous documents relation to the CIA's request for a legal opinion from the OLC [Office of Legal Counsel], we believe that D'Amuro's meeting with Mueller took place in approximately August 2002.

[...]

D'Amuro gave several reasons to the OIG for his recommendation that the FBI refrain from participating in the use of these techniques. First, he said he felt that these techniques were not as effective for developing accurate information as the FBI's rapport-based approach which he stated had previously been used successfully to get cooperation from al-Qaeda members. He explained that the FBI did not believe these techniques would provide the intelligence it needed and the FBI's proved techniques would. He said the individuals being interrogated came from parts of the world where much worse interview techniques were used, and they expected the United States to use these harsh techniques. As a result, D'Amuro did not think the techniques would be effective in obtaining accurate information.

In her 2008 book, The Dark Side (Doubleday), The New Yorker's Jane Mayer wrote that “many of the [CIA's] own scientists” objected to the use of harsh interrogation techniques, and that "[s]ome top CIA officers, including R. Scott Shumate, the chief operational psychologist for the CTC [Counterterrorist Center] from 2001 until 2003, left the Agency, apparently in disagreement over what he believed was a misuse of the SERE techniques." From The Dark Side:

It's not yet possible to pinpoint exactly how and when the CIA first turned to the SERE program for advice on how to interrogate its own captives. But a well-informed and reliable source who worked closely with the intelligence community after September 11 said that as the Agency struggled to design an interrogation and detention program on the fly, it turned to psychologists in its own scientific division for advice about what might work to “break” terror suspects. Leery about what they saw as potentially unethical and illegal uses of science, many of the Agency's own scientists recoiled. He said their reaction was 'Don't even think about this!' They thought officers could be prosecuted." Like the senior CIA officer who advised [CIA officer John] Kiriakou not to get involved as an interrogator, many in-house scientists sensed a boundary that the U.S. government shouldn't cross. Some top CIA officers, including R. Scott Shumate, the chief operational psychologist for the CTC from 2001 until 2003, left the Agency, apparently in disagreement over what he believed was a misuse of the SERE techniques. At the CIA, Shumate had reported directly to Cofer Black. Shumate then went to the Pentagon, where he became head of the Behavioral Sciences Directorate within the Counterintelligence Field Activity. He declined to comment, but associates described him as upset in particular about the treatment of Zubayda. [Page 162]

Concerns from experts in the SERE program

The Armed Services Committee report recounted how, in 2002, Dr. Jerald Ogrisseg, chief of psychology services at the Air Force SERE school, expressed doubts about the legality of using harsh interrogation techniques on detainees to Daniel Baumgartner, chief of staff to the Joint Personnel Recovery Agency (JPRA), which oversees the SERE program. According to the report, Ogrisseg further concluded that the psychological effects of resistance training “were not applicable to the offensive use of SERE techniques against real world detainees.” From the report:

(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) 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.

In addition, in July 2002, a JPRA memo sent to the Pentagon general counsel's office warned that the use of “physical and/or psychological duress” during an interrogation could produce “unreliable information,” and that “it could be used by our adversaries as justification for the torture of captured U.S. personnel.” From the memo:

In essence, physical and/or psychological duress are viewed as an alternative to the more time-consuming conventional interrogation process. The error inherent in this line of thinking is the assumption that, through torture, the interrogator can extract reliable and accurate information. History and a consideration of human behavior would appear to refute this assumption.

[...]

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.

In an April 25, 2009, article, The Washington Post reported that the memo, which it obtained, “was included among July 2002 memorandums that described severe techniques used against Americans in past conflicts and the psychological effects of such treatment.” The Post also noted that the memo “was sent from the Pentagon to the CIA's acting general counsel, John A. Rizzo, and on to the Justice Department, according to testimony before the Senate Armed Services Committee.”

* Media Matters searched the Nexis database of The Washington Post for Pelosi AND (interr! or waterb! or water board! or enhanced or detain! or harsh).