Since the December 9, 2014 release of the Senate Intelligence Committee’s report (Report) on CIA torture, much of the news media has focused its attention on whether the torturous “enhanced interrogation techniques” (EITs) employed by the agency in the wake of 9/11 produced “reliable, actionable intelligence.”


This top-heavy focus on the quality of information gained from the EITs should not be the only debate surrounding the report. A little discussed, but equally important question is whether those who ordered, supervised, and conducted the EITs are criminally liable.


Federal law, 18 U.S.C. Sec. 2340, prohibits torture which is defined as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” It is a also a criminal violation to commit torture outside of the U.S.


It is also against established international law to commit acts of torture.


One of the first “high-valued” terror suspects captured by the CIA was Abu Zubaydah. Captured in March 2002 in Pakistan, he was the highest ranking member of al-Qaeda captured at the time. Allegedly, the senior al-Qaeda operative was the personal confidant of Osama bin Laden. At some point it must have become clear to the CIA that he was not going to voluntarily cooperate with American authorities about al-Qaeda’s past or future terrorist attacks against the United States and its allies.


From the moment of his capture, the CIA had aggressively interrogated Zubaydah to force his cooperation without much success. The intelligence agency decided to escalate from harsh interrogation methods to EITs to get him to talk. The agency, knowing torture is explicitly prohibited by U.S. law, and being fearful of future congressional and media backlash, sought, and received, legal cover from the U.S. Justice Department to employ the EITs.


The Justice Department first provided the CIA with “legal cover” on July 24 and July 26, 2002 with verbal EIT approvals before providing the intelligence agency with written approvals beginning on August 1, 2002. The Justice Department based its approval decision on information provided by the CIA that Zubaydah had information about al-Qaeda but had refused to divulge it. The CIA informed the Justice Department that more aggressive techniques would have to be employed to get him to reveal that information. The Justice Department gave its first written “torture memos” to John Rizzo, the CIA’s Acting General Counsel, that the intelligence agency could employ EITs against Zubaydah because:


“… he is withholding information regarding terrorist networks in the United States or Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently a level of ‘chatter’ equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an ‘increased pressure phase’.”


The Justice Department approved the ten interrogation techniques suggested by the CIA, hoping to force Zubaydah to give up the information it was seeking:


1. Attention Grasp – grasping the suspect with both hands, “one hand on each side of the collar opening [and] in a controlled and quick motion” drawing the suspect toward the interrogator.
2. Walling – the suspect is placed against a flexible false wall with his heels touching the wall. The interrogator snatches the individual forward and then slams him against the wall. A rolled towel or hood is placed around the head and neck to prevent whiplash. The wall is designed so that a loud noise is made when the suspect is slammed into it inducing shock and surprise in the suspect.


3. Facial Hold – an open palm is placed on either side of the suspect’s face to keep the head immobile.
4. Facial Slap (Insult Slap) – a slap across the face designed to induce humiliation, shock, surprise; something particularly offensive to men.
5. Cramped Confinement – placing the suspect in a confined space, usually dark, that severely restricts his movements, and based upon the size of the space, the suspect is held virtually immobile for 2 to 18 hours.
6. Wall Standing – the suspect is forced to stand four to five feet from a wall with feet spread shoulder width with his arms stretched out in front of him with fingertips touching the wall. The suspect’s entire body weight, therefore, is supported by his fingertips. He cannot move or re-position his hands or feet. The muscle fatigue induced can be excruciating.
7. Stress Positions – a variety is positions which, like wall standing, produce severe muscle fatigue. Two of the positions used on Zubaydah included forcing him to sit on the floor with his legs extended straight out in front of him with his arms raised above his head; and kneeling on the floor with his body leaning back at a 45 degree angle.
8. Sleep Deprivation – deprives a suspect of his normal ability to think and resist; and produces abnormal reactions. The Justice Department authorized that Zubaydah could be deprived of sleep for up to 11 days.
9. Insects Placed In Confinement Box – Zubaydah had an abnormal fear of poisonous insects. The Justice Department authorized that CIA interrogators could place a non-poisonous stinging insect in a cramped box with Zubaydah but lead him to believe the insect was poisonous.
10. Waterboarding – a suspect is bound tightly to a declining board four to seven feet in length with his feet elevated, and a cloth placed over his forehead and eyes. Water is then poured over the cloth as the cloth is lowered to cover the nose and mouth restricting the suspect’s air flow and increasing the level of carbon dioxide his blood. The increased level of carbon dioxide produces a suffocation-drowning effect. The suspect does not breathe any water into his lungs. The water pouring continues for 20 to 40 seconds before the cloth is removed and the suspect allowed to take three or four full breaths. The process is repeated, and repeated, and repeated during 20 minute sessions.


Licensed with this official approval, the CIA decided it could further enhance the effectiveness of the EITs with blatant torture methods not only against Zubaydah but a host of other terror suspects captured after him. Here is a list of some of the CIA’s actual EITs:


• Rectal dehydration – at least five detainees had their food pureed and were forced fed through a tube inserted up their rectum without any documented medical necessity for using this dangerous and degrading procedure.
• Waterboarding – On dozens of occasions, high-valued detainees had water pour over their mouth and nose to the point of near suffocation. Khalid Sheikh Mohammed, for example, was waterboarded 183 times. Zubaydah was rendered unconscious and completely unresponsive in one drowning session.
• Sexual assault/humiliation –detainees were raped, shackled, and dragged down corridors for behavioral control. Some detainees were threatened with sexual abuse and violence against their mothers and children. At least one detainee had anal fissure and symptomatic rectal prolapse indicating a violent anal rape. At least two detainees were subjected to “excessive force” rectal exams.
• Sensory deprivation – detainees forced to stand on broken legs or go up to 180 consecutive hours without sleep. Some were shackled with hands above their heads while suffering from broken bones in their legs and feet.
• Solitary confinement – detainees held in foreign dungeons where they were subjected to physical brutality with only a bucket for their waste. The bucket was frequently taken from them forcing them to sleep and eat with their own waste.
• Mock executions – detainees were threatened with death and subjected to Russian roulette. At least two detainees were subjected to mock executions.
• Forced medication – detainees were given injections or other medications without their consent. High doses of Larium were used by the military on detainees which produced psychosis and suicidal thoughts and behavior among them.
• Use of dogs to scare detainees – unmuzzled working dogs used to threaten and attack detainees, forcing them to urinate and defecate on themselves out of fear.
• Temperature extremes –detainees were chained to the floor nude and subjected to freezing temperatures resulting in several dying from hypothermia.
• Sensory bombardment (noise) – detainees were flooded bright lights and loud noises, such as music, to disorient them and deprive them of sleep. At least one detainee was kept in a coffin for 11 days.
• Psychological techniques – detainees were subjected to non-stop interrogation for days or weeks at a time. The CIA told the interrogators that securing information should take “precedence over medical care” in the case of Zubaydah who lost his left eye during these EITs. At least one detainee was so psychologically traumatized that he was “a broken man.” Other detainees suffered from dementia, paranoia, and insomnia while still others became suicidal.


Former Vice President Dick Cheney has repeatedly said that he not only supported these EITs but would utilize them again given the opportunity. Some conservative media personalities have called those who employed the EITs “patriots” and said America was “awesome” for implementing them.


Former President George W. Bush has publicly admitted that he authorized the use a “waterboarding,” a universally recognized torture interrogation technique, on several terrorist suspects. He made this decision after being informed by the CIA that the suspects possessed credible information about possible terror attacks against the United States. In fact, the former president, while promoting his memoir Decision Points (Random House 2010), has been widely quoted in the media as saying “damn right” when the CIA sought “waterboarding” authorization.


In recent interviews, Vice President Cheney said Bush was aware all along of the nature and substance of the EITs. The former president, however, has always shielded himself from any involvement in possible criminal wrongdoing by saying he approved the EITs only after U.S. Justice Department attorneys advised him that it was “legal” to do so. To this day Bush still maintains that he does not consider waterboarding a form of torture, but he has been relatively quiet about new revelations concerning the way the EITs were actually conducted.


In his book The Perfect Storm (W.W. Norton & Company 1997), Sebastian Junger described in incredible detail the experience of drowning: “The instinct not to breathe underwater is so strong that it overcomes the agony of running out of air. No matter how desperate the drowning person is, he doesn’t inhale until he’s on the verge of losing consciousness. At that point there’s so much carbon dioxide in the blood, and so little oxygen, that chemical sensors in the brain trigger an involuntary breath whether he’s underwater or not. This is called the ‘break point’… Until the break point, a drowning person is said to be undergoing ‘voluntary apnea,’ choosing not to breathe. Lack of oxygen to the brain causes a sensation of darkness closing in from all sides, as in a camera aperture stopping down.”


CIA waterboarding interrogators took the terrorist suspects almost to, and even beyond, the “break point” with the water pouring only to bring him back to the proverbial surface for a few seconds to inhale just three or four breaths of oxygen before initiating the water pouring again. While Justice Department attorneys said these interrogation sessions could last no more than 20 minutes, the Report makes it clear that there is no way to know exactly how long they really lasted. Videos of the sessions were destroyed along the way. The point is that each suspect was led to believe that each water pouring session would be his last because even though the suspect was snatched back from the “break point” each time, he never knew when a particular session would be his last, when the “drowning process” would actually be carried to its final end.


That’s torture. When you waterboard a suspect 183 times and waterboard another into unresponsiveness, along with a host of other violent and brutal EITs, you are torturing. Waterboarding is the EIT that gets the most attention because of its historical association with torture.


In 1994, this country ratified a treaty titled “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” Torture was defined by that treaty as “… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession” … when it is “inflicted by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity.”


Put simply, America joined the international community in saying that presidents, dictators, military leaders, and other government officials do not have the authority to either carry out torture or authorize it, regardless of who may say they have the legal power to do so. While President Bush and Vice President may not consider waterboarding to be torture, University of Pennsylvania historian Ed Peters in 2007 told National Public Radio that the interrogation technique known as the “water cure” or tormenta de toca was a “normal incident of law [enforcement]” in the effort to extract confession from suspects before the period of Enlightment.


NPR reported that Americans first used waterboarding during the Spanish-American War. At least one American soldier was tried and convicted for using what an Army judge called “torture.” Again 1947 the United States convicted a Japanese officer named Yukio Asano for using waterboarding on American civilians during World War II. And, finally, in 1968, the Washington Post published a photograph of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption under the photo said the waterboarding produced “a flooding sense of suffocation, drowning, meant to make him talk. The Army conducted an investigation and two months later court martialed the American soldier shown in the photo.


It has been reported that an estimated 100 detainees died during administration of our government’s enhanced interrogation techniques. Some were literally tortured to death. These are homicides and should be investigated as such, no matter what the legal memos say.


The “torture issue” before this nation is quite simple: did CIA interrogators go beyond the EIT protocols spelled out in the Justice Department’s “terror memos?” If so, and there is compelling evidence that they did, should the Justice Department launch a criminal investigation into the allegations put forth in the Report? Republicans and Democrats alike do not seem to have a political appetite for such an investigation. It’s also clear that President Obama is not going to take the moral lead on this issue—and, in all fairness, the political climate may not be tolerant of enough for him to take such a lead.


But there is little doubt remaining that CIA employees and its contractors violated the federal torture statute with its EIT program. At the end of the day, we will probably be left only with the Report to let the American people decide whether the CIA was “awesome” or “criminal” in its management of the Justice Department-approved EIT program. Our position is clear: conduct a criminal investigation, put the evidence of that investigation before a grand jury, and if indictments are handed down, let American juries decide whether there was criminal wrongdoing associated with the EIT program.