THE VIDEOGRAPHER: We are now on the record.
This is the beginning of Videotape Number 1 in the deposition of John Rizzo in the matter of Suleiman Abdullah Salim versus James Elmer Mitchell and John Bruce Jessen in the United States District Court for the Eastern District of Washington at Spokane, Case Number 2:15-CV-286-JLQ.
Today is Monday March the 20, 2017, the time now is 20 sorry, 10:06 a.m. This deposition is being taken in the office of Blank Rome LLP, 1825 Eye Street, Northwest, Washington, D.C., 20006 at the Blank Rome LLC firm.
My name is Frank Sayers, the videographer with Magna Legal Services, and the court reporter is Lori Goodin, also with Magna Legal Services.
Will counsel and all parties present state their appearance and whom they represent.
MR. BENNETT: My name is Bob Bennett.
I represent the witness, John Rizzo.
MR. LADIN: My name is Dror Ladin.
I represent the plaintiffs.
MR. FREY: Avram Frey, with plaintiffs.
MR. LUSTBERG: Lawrence Lustberg on behalf of plaintiffs.
MS. SHAMSI: Hina Shamsi, on behalf of the plaintiffs.
MR. WATT: Steven Watt on behalf of the plaintiffs.
MR. HANNER: Brooks Hanner, on behalf of Mr. Rizzo.
MR. UNRUH: David Unruh, on behalf of Mr. Rizzo.
MS. QUERNS: Ann Querns, on behalf of the defendants.
MR. SMITH: Jim Smith on behalf of the defendants.
MR. SCHUELKE: Hank Schuelke on behalf of the defendants.
MR. MITCHELL: James Mitchell, I am the defendant.
MR. WARDEN: I am Andrew Warden, from the Department of Justice, and I represent the United States government in connection with this case.
On behalf of the United States government, I have with me here today Joseph Sweeney, Cody Smith, Heather Walcott and Meagan Beckman.
Although the United States government is not a party to this case.
We are here today in order to represent the interests of the United States.
We understand the questions in this deposition will cover topics related to Mr. Rizzo's career as an attorney with the Central Intelligence Agency.
Given the sensitive nature of the positions Mr. Rizzo held while with the CIA and the information he acquired while in those positions, we are here today to protect against the unauthorized disclosure of the classified, protected, or privileged government information.
To guide the parties in the deposition, we provided the parties with classification guidance from the CIA, which we premarked as Exhibit 1.
THE VIDEOGRAPHER: Okay.
Will the court reporter please swear in the witness.
(United States Exhibit Number 1 premarked for identification.)
MR. WARDEN: What I have disclosed is, marked as Exhibit 1, classification guidance from the Central Intelligence Agency that provides a list of categories of information about the CIA's detention and interrogation program that remains classified, and a list of categories of information that is now unclassified.
The government would issue a continuing instruction at the outset of this deposition that in response to any questions, the government instructs the witness, Mr. Rizzo, not to answer with reference to any of the information identified as classified in the guidance.
And we reserve the right to object to any questions posed to Mr. Rizzo consistent with his nondisclosure agreements with the government, and instruct Mr. Rizzo not to answer any questions that would tend to call for the disclosure of classified, protected, or privileged government information.
MR. SMITH: Just as a point of order, Mr. Warden, in the past with these depositions, we had an understanding that if the government had any concern about the question that was asked, and the anticipated answer, to just simply raise your hand.
That will signal to the witness that the government may have a concern, and until you tell us how you want to proceed, the room will be quiet.
MR. WARDEN: We appreciate that, Mr. Smith.
Thank you.
MR. SMITH: Great.
WHEREUPON,
JOHN RIZZO,
having been first duly sworn, was examined and testified as follows:
EXAMINATION
BY MR. LADIN:
Q     All right. Good morning, Mr. Rizzo.
A     Good morning.
Q     My name is Dror Ladin. I am an attorney with the ACLU. Here with me are my colleagues, Mr. Frey, Mr. Lustberg, Ms. Shamsi and Mr. Watt. And we represent the plaintiffs in the matter Salim v. Mitchell. You are represented by counsel today. And I'm sure you have been prepared, but just so we are clear, I'm going to go through some of the instructions on the deposition. Have you ever been deposed before?
A     No, not at deposition, no.
Q     Okay. As you see, we have a stenographer here, and she will transcribe everything that is said today. We also have a videographer, who will be recording your testimony. If this case goes to trial in the future, it is possible that your testimony could be introduced through the transcript or video. Do you understand that?
A     Yes.
Q     And, I'm going to be asking you questions today. And you will be providing responses. Your responses are under oath, and you should treat it just as if you were testifying in court. It is the same solemn oath that would apply, even though we are in a less formal setting. Do you understand?
A     Yes.
Q     Thank you. Mr. Bennett will be defending you. And if he has any objections, he will state those. And if he does, please wait until his objection is finished before you respond. Also, please wait until I'm finished asking questions before you respond. I will extend the same courtesy to you. It is important that we not speak over one another. If you don't understand a question or any part of a question, please ask me to rephrase, and I will be glad to do so. If you do answer a question, I will assume you understood it. Is that fair?
A     That is fair.
Q     I will ask you to verbalize your answers, just because nods of the head or gestures won't show up on the transcript. Are you on any drugs or medications or anything that would impair your ability to testify truthfully today?
A     No.
Q     All right. And, understand that you can take a break at any time. Just let me know, and we will halt it. Do you have any questions of me before we begin?
A     No.
Q     All right. So, you had a deposition scheduled in January in this case, correct?
A     I don't remember.
MR. BENNETT: You've answered it.
BY MR. LADIN:
Q     All right. Do you remember having a deposition scheduled in this case at some point before today?
A     Oh, before today.
Q     Yes.
A     It was scheduled two weeks ago.
Q     And before that time, were you asked to provide a declaration for the defendants in this case?
A     Oh, yes, yes.
Q     How did that declaration come about?
A     Well, I worked with my attorneys here. They, I believe at that point, the defendants saw the declaration. So, I worked with my attorneys in putting together a declaration that covered the subject matters the defendants were interested in.
Q     And was there some offer that you would get anything in return for this declaration?
A     No. No. Not as such, no.
Q     Did you understand that if you gave the declaration you might not need to be deposed?
A     Yes.
Q     And did you read every paragraph of the declaration?
A     Yes.
Q     Is every paragraph in that declaration truthful?
A     Yes.
Q     Did you omit anything from the declaration at the request of the defendants?
A     Not that I recall, no.
Q     Okay. So, you were an attorney at the CIA for how many years?
A     Thirty-four.
Q     Thirty-four years. And at that time did you maintain a law license?
A     Yes.
Q     Do you have one now?
A     Yes.
Q     Did you ever practice criminal law?
A     No.
Q     And you, I think you stated you hadn't had any occasion to look at, for example, the criminal code's definition of torture before 2001 or 2002; is that correct?
A     Before 2002, yes.
Q     Had you ever studied the Geneva Convention prior to 2002?
A     Not really, no.
Q     That is not really something that was looked at a lot at the CIA at the time, right?
A     No, no.
Q     The CIA didn't really deal with captivity or the law that was associated with it before 2002?
MR. BENNETT: Well, excuse me.
You say the CIA.
That is a big organization.
So, could you be more specific?
MR. LADIN: Sure.
BY MR. LADIN:
Q     In your experience in the was it the Office of General Counsel?
A     For my career?
Q     Yes.
A     Yes, I spent one year in the Office of Inspector General and two years in the Office of Congressional Affairs. But, other than that, my entire career was in the Office of General Counsel, yes.
Q     And, in that office, to the best of your knowledge, during your time there, no one dealt, prior to 2002, with questions of captivity?
A     No. Certainly not in my time there.
Q     What about any training in psychology? Did you ever study psychology?
A     No.
Q     Okay. And you've never studied posttraumatic stress disorder?
A     No.
Q     So, how did you come to know that the CIA was considering the use of an enhanced interrogation program?
A     Well, in early 2002, I say early, late March, early April, the, kind of some people from the Counter Terrorism Center came to my office and this was a few months after the capture of, the CIA capture of Abu Zubaydah, the first high value EKD that was captured. They came to my office with a, over a briefing, and told me about some proposed interrogation techniques, new ones, that were being contemplated.
Q     And when you say some people, was that José Rodriguez and James Mitchell?
A     I don't no, I don't believe so. These were people well, José, I guess was Chief Counter Terrorism Center. I'm sure, I'm sure he wasn't there. And I don't believe Mr. Mitchell was there.
Q     Did there come a time when you did meet with José Rodriguez and Jim Mitchell about the EITs?
A     Yes, there came a time. Yes.
Q     Do you remember roughly when that was?
A     Well, I met with José almost immediately after first being told about these proposed techniques and why the people in the CTC thought they were necessary. I don't recall meeting Mr. Mitchell for some months after that, actually.
Q     Had the people in CTC informed you of the origin of the techniques they were considering?
A     We are talking about 15 years ago. But I believe in that initial briefing there was some reference made to them being based on the SERE techniques, which also I had no prior knowledge of, so
Q     And what did you understand, or what do you now understand SERE training to be?
A     Well, it is survival
Q     Yes, we don't need the acronym.
A     But, it is training that special forces, Navy officers take to prepare them for possible capture by terrorists or other extra-national organizations.
Q     And, what did you understand at the time about the use of SERE techniques in training?
A     Well, that they had been a staple of these training programs for some period of time.
Q     And did you understand that the techniques that you were considering were identical to the techniques that were used in SERE training?
A     No, my recollection is that I was told that these were based on the SERE training techniques, but there was some variation.
Q     And, when did you first meet Dr. Mitchell?
A     Well, to the best of my recollection I met the, Dr. Mitchell and Dr. Jessen several months later. Again, sorry to go back in time now, but I would say maybe six, seven, eight months later, somewhere along those lines.
Q     So, you are saying after the techniques had already been used?
A     Uh-huh.
Q     So, you don't
A     Yes.
Q     you don't recall a meeting with George Tenet and José Rodriguez, in which James Mitchell presented the techniques?
A     No, I don't recall that.
Q     Okay. Did you know that neither Mitchell nor Jessen had ever conducted an interrogation prior to the instigation of Abu Zubaydah?
A     Did I know that?
Q     At the time, yes.
A     No.
Q     Would it have made any difference to you?
A     No. I mean, I wasn't in a position to judge their qualifications and experience. I was the legal advisor.
Q     And, they were presented to you as experts on interrogation?
A     I don't know if the word, experts, was used. But, they certainly again, I didn't I don't recall meeting any of them for several months. But I believe the CTC presenters, who presented the techniques said that the, that these were experienced psychologists in this area.
Q     All right. I'm going to show you a document that has previously been marked Exhibit 17.
(Whereupon, previously marked Exhibit 17, first referral.)
THE WITNESS: Okay.
BY MR. LADIN:
Q     Are these the enhanced interrogation techniques that were presented to you?
MR. SMITH: Objection.
THE WITNESS: Do I answer?
MR. BENNETT: Yes, you can answer.
THE WITNESS: They appear to be some of them.
Not all of them.
BY MR. LADIN:
Q     So, which ones
A     At least the part that isn't redacted.
Q     So, this lists 12 techniques. We can just go through them, and you can tell me whether those are different than the techniques
A     You know, how many pages is this? Because I've only got two, and it starts in the middle of a sentence.
Q     That is certainly odd.
A     Am I missing something?
Q     Is that how that is not how my version looks? Well, here, why don't you use mine.
A     Oh, I'm sorry. I'm sorry. My mistake no.
MR. BENNETT: They just didn't copy the back page here.
THE WITNESS: All right.
Okay.
Here we go.
BY MR. LADIN:
Q     I see. So, now it makes sense why you said techniques were missing. Well, looking at this now, are these 12 techniques, the techniques that were presented to you?
MR. SMITH: Objection.
MR. BENNETT: Go ahead.
THE WITNESS: Yes, they appear to be.
BY MR. LADIN:
Q     Okay. You said in your book that some of the techniques sounded sadistic and terrifying to you. Do you stand by that characterization?
A     At the time they were described to me for the first time, that was my immediate reaction. No. I mean, as I got to know more about the way the techniques were to be administered and controlled, no, I wouldn't use those adjectives any longer.
Q     How would you describe them now?
A     Very tough and very harsh, some of them.
Q     Which ones are those?
A     Which ones I think now are that, or which ones did I think at the time?
Q     Why don't you tell me both.
A     Well, at the time when I say at the time, at the time these proposed techniques were first presented to me, the waterboard and the mock burial struck me as the harshest. Some of the others far less so. And, so, putting forth, yes, moving forth to the present, or at least at the time while I was still at the agency, I still consider waterboarding a very harsh technique.
MR. SMITH: Mr. Rizzo, could I ask if you could keep your voice up so we could hear you down here.
THE WITNESS: Oh, I'm sorry.
MR. SMITH: Thank you.
BY MR. LADIN:
Q     So, Dr. Mitchell recalls a meeting that I completely understand if you don't recall, but he says that you and the Director Tenet were very interested in the fact that the techniques that you were discussing had been used on thousands of U.S. military personnel over the years. Was that important to your legal analysis of these techniques?
MR. SMITH: Objection.
MR. BENNETT: Go ahead.
THE WITNESS: Well, the fact that they had been employed previously, sure, that had an impact on the way I viewed them from a potential legal standpoint.
BY MR. LADIN:
Q     And what was your understanding in the ways the techniques differed from their use in training?
A     Oh, I can't remember that. I can't recall.
Q     So, you don't remember, you don't remember what you were told about how the techniques compared to their use in SERE training?
A     No. Not specifically.
Q     Did Mitchell or Jessen ever tell you that SERE techniques were based on techniques used by German, Japanese, Korean and North Vietnamese militaries in past conflicts?
A     Not that I recall, no.
Q     Were you ever told by Mitchell or Jessen that SERE was based on techniques that had been used to extract false confessions from American prisoners of war?
A     No.
Q     Was that something that you were independently aware of?
A     Was what, the false confessions?
Q     That that SERE training was based on interrogation programs that had extracted false confessions from American prisoners of war?
A     I subsequently learned of those allegations. But, at the time, I don't recall doctors Mitchell or Jessen or actually anyone in the CTC telling me that.
Q     And was your understanding that someone in CTC, aside from Mitchell or Jessen, had experience in the SERE program?
A     No, I don't recall that.
Q     So, after the techniques were presented to you, did you have an opinion as to their legality?
A     Well, as I say, I thought, having had no previous experience with the torture statute, I had less of a rudimentary understanding of what the legal lines were. But, hearing about the waterboard, which I had never heard of before, and the mock burial technique, I thought whatever the legal line was, these two in particular were close to it.
Q     And what did you do to determine whether they were, in fact, legal?
A     Well, I mean, keep in mind the time was of the essence. Then the, our, CTC people were convinced that Abu Zubaydah was holding back information. That he was not responding to less coercive interrogation techniques. And that, you know, this was a few months after 9/11 that, you know, there was a great sense of fear and threat that another major attack was coming on the homeland. So, I decided rather than conduct a legal analysis by our office, that I would refer the matter immediately to the Office of Legal Counsel at the Department of Justice.
Q     And were you aware that during this period in which you were told that there was a great deal of urgency to question Abu Zubaydah, Abu Zubaydah was in fact not questioned for over a month?
MR. BENNETT: I might object to the form of the question, because you assume things that are not, not really, are you aware that.
I don't mind you asking him if he knew of something.
But, your questions seem to be predicated on something as an established fact.
MR. LADIN: Sure.
MR. BENNETT: So, I would appreciate it if you could reword your objections
MR. LADIN: Sure.
MR. BENNETT: your questions.
BY MR. LADIN:
Q     Have you heard of an isolation phase in Abu Zubaydah's interrogation?
A     I have heard of an isolation phase, yes.
Q     Do you know whether Abu Zubaydah was asked any questions during the isolation phase?
A     Again, do I know?
Q     Do you know now.
A     Do I know now? Yes, I've come to learn that there was a period of time where he was not asked questions.
Q     And at the time did you know that?
A     At the very beginning that the techniques were being described to me, at that point in time?
Q     At the time when you were seeking the Department of Justice's opinion on the techniques.
A     No, I don't believe so.
Q     Do you recall when you became aware of the fact that he wasn't being questioned during that period?
A     I believe it was some months later. It was a while.
Q     So, what was the extent of the internal CIA process to determine the legality of the techniques before you turned the matter over to OLC?
A     I asked our lawyers in the Counter Terrorism Center to see what they could come up with, in terms of initial legal precedents, legislative history about the torture statute, what they could find in the legal literature. And so they did some of that.
Q     And do you remember any conclusion that they reached?
A     No, I wasn't again, I was determined from the beginning to seek definitive word from the Office of Legal Counsel. As I recall, this was more of a legal research, not a, you know, legal conclusion.
Q     So, as far as you were concerned, was the legality of the techniques an open question when you referred the matter to the Office of Legal Counsel?
A     Yes.
Q     Now, one aspect of that referral was that the Office of Legal Counsel came back to your office with requests for further information. Is that correct?
A     That is correct.
Q     And in your declaration, you point to a particular OTS memo that you provided to OLC to ensure that the CIA was not overselling, that SERE was identical, or the certainty that there would be no harm. Is that so, just to make sure
MR. BENNETT: Is that a question or a statement?
You made a statement.
MR. LADIN: I did, you are right.
Let me rephrase.
BY MR. LADIN:
Q     And, just to sort of smooth this along I'm just going to give you a copy of your declaration. So, we will mark that exhibit. And this one thankfully is copied on both sides.
MR. LADIN: So, Ms. Court Reporter, could you please mark this exhibit.
What number are we up to?
Do you know.
Please mark this as Exhibit 45.
(Exhibit Number 45 marked for identification.)
BY MR. LADIN:
Q     So, I'm going to ask you about Paragraphs 38 and 39, which are on Page 6 and 7 of your declaration.
A     Okay.
Q     So, you see the statement there that you say you provided to the Office of Legal Counsel to ensure that the CIA was not overselling the significance of the EITs used during SERE training.
MR. BENNETT: Which paragraph are you?
THE WITNESS: Uh-huh, correct.
MR. LADIN: That is Paragraph 39.
BY MR. LADIN:
Q     And that was part of a back and forth with OLC in which you provided them with information to allow them to assess legality; is that correct?
A     That's correct.
Q     I would like to show you a document that has been previously marked Exhibit Number 18.
(Whereupon, previously marked Exhibit 18, first referral.)
MR. BENNETT: Which paragraph does that refer to?
Do you know?
Or is it outside the declaration?
MR. LADIN: Sorry, I didn't understand the question.
MR. BENNETT: Well, is this an exhibit to his declaration?
MR. LADIN: No, this was not an exhibit to your declaration.
MR. BENNETT: Okay, thank you.
Thank you.
BY MR. LADIN:
Q     It has previously been marked in a different deposition. At least that is what I believe. It may I don't believe this was part of your declaration. If it was, I apologize.
MR. BENNETT: That is all right.
BY MR. LADIN:
Q     There is very similar text in this
A     Let me read this, because I don't believe that I've seen this before.
Q     Sure.
A     Okay.
Q     So, this appears to be a cable in which recommendations and responses to questions are being provided by IC SERE psychologists; is that right?
A     It appears to be.
Q     And, the IC SERE psychologists, those are Mitchell and Jessen, correct?
A     Yes, I assume so.
MR. BENNETT: Well, don't assume.
THE WITNESS: Okay.
I don't know.
MR. BENNETT: He is entitled to full and complete answers, but not assumptions.
BY MR. LADIN:
Q     Do you know of any other independent contractor SERE psychologists who were involved in the Abu Zubaydah interrogation?
A     Not that I recall.
Q     So, here it says, the paragraph that begins on Page 1, once it is not redacted, appears to be the same as the OTS memo that you provided to the Department of Justice; is that right?
MR. SMITH: Objection.
THE WITNESS: I would need to look at the OTS memo to compare.
BY MR. LADIN:
Q     Sure. All right. I won't ask you to do that. But, what I do want to ask you is, was there, as far as you were aware, a back and forth process in which feedback was solicited from the IC SERE psychologists about the safety and necessity of different techniques?
A     Yes, well, there yes, there was a iterative process back and forth, yes.
Q     And that process resulted in feedback like the feedback presented here in Paragraphs 4, 5, and 6, that is identified as IC SERE psychologists' feedback?
MR. SMITH: Objection.
THE WITNESS: I can't say, I'm just, again, reading this for the first time so I can't
MR. BENNETT: You have answered the question.
THE WITNESS: Okay.
BY MR. LADIN:
Q     Do you remember any aspects of the iterative process by which information was communicated to the Office of Legal Counsel in their evaluation of the techniques?
A     I'm sorry, you have to clarify. In the aspects of the iterative?
Q     Sure. I believe you said there was an iterative process in which OLC would ask CIA for further information.
A     Right.
Q     Would that flow through your office?
A     It would well, it certainly would flow some of it flowed to me from OLC directly. As I recall, other times OLC people would call the lawyers in CTC, and I wouldn't be directly involved in that.
Q     And, if information flowed from CTC in response to DOJ's requests, would that response go through you or might it go would that response go through you?
A     As I recall, a lot of it did, but I can't say all of it. I mean, there are times I weren't there I wasn't there, or I was involved in other things. So, I can't say all of it.
MR. BENNETT: Your hand.
THE WITNESS: Okay.
BY MR. LADIN:
Q     And you've said you've not seen this cable before?
A     I can't say I've never seen it. I just haven't seen it in a long time, if I've seen it at all.
Q     So, to be clear, when you say that Drs. Mitchell and Jessen were not involved let me just get to exactly what you said. So, just to return to your declaration.
MR. BENNETT: Which paragraph are we talking about now?
MR. LADIN: Sure.
BY MR. LADIN:
Q     So, take Paragraph 22 of your declaration on Page 4.
A     Okay.
Q     So, when you say, "To my knowledge, Drs. Mitchell and Jessen had no role in OLC's assessment of these techniques' legality," that is not incorporating, for example, your review of the cable you've just looked at; is that correct?
A     No. I mean I Drs. Mitchell and Jessen, to my knowledge, had no role in the OLC's assessment. The only people who had communications back and forth with OLC were either myself or the, to my knowledge, the CTC attorneys. So, that is what I was trying to get at there.
Q     So, is what you mean that as far as you know Drs. Mitchell and Jessen didn't directly speak with OLC?
A     As far as I know.
Q     But you are not saying that they did not provide information that was considered by OLC?
A     At this point in time, I can't remember what they provided and what they didn't.
Q     Sure. Let's look at, I think this was Exhibit J to your declaration.
MR. BENNETT: Here, let's go to J here.
MR. LADIN: Court Reporter, could you please mark this as 46.
(Exhibit Number 46 marked for identification.)
MR. BENNETT: Take that book.
That is your declaration and your exhibits.
We are talking about J.
BY MR. LADIN:
Q     And, what I'm going to ask you about is on the page marked Bates 1763.
A     Okay.
Q     So, here it appears to say in Paragraph 7 that the Office of Legal Counsel advised that the statute would not prohibit the methods proposed by the interrogation team in light of the specific facts and circumstances of the interrogation process.
A     I'm sorry. Can you just tell me where on that page you are reading from?
Q     Sure. It is in the middle. It is Paragraph 7. And it well, take your time.
A     So, the question is?
Q     Sure. So, it says, "The legal conclusion turns upon the following factors." And then it lists a series of factors, correct?
A     Correct.
Q     And if you look at the bottom paragraph, it says, "We understand from OTS," and there is something redacted, "OMS and the SERE psychologists on the interrogation team that the procedures described above should not, repeat not, produce severe mental or physical pain and suffering." Do you see that?
A     Yes.
Q     And so when they say we understand from the SERE psychologists on the interrogation team, that is Drs. Mitchell and Jessen, correct?
A     Again, I don't know specifically.
MR. BENNETT: You answered it.
BY MR. LADIN:
Q     Okay. And, just before we are done, it also says, "Nor would they be expected to produce prolonged mental harm, continuing from a period of months or years, such as the creation of persistent posttraumatic stress disorder." Do you see that?
A     I do, yes.
Q     So, this says that the Office of Legal Counsel considered it important in their determination as to legality, feedback that they received about whether these techniques would cause posttraumatic stress disorder?
MR. BENNETT: Well, I look, I object, because the document speaks for itself.
MR. LADIN: I understand.
MR. BENNETT: Okay, so
THE WITNESS: That is what it says.
MR. BENNETT: He says he doesn't remember seeing this.
THE WITNESS: So, your question is?
BY MR. LADIN:
Q     So, my question is, I let me phrase it correctly. You don't have specific knowledge that Mitchell and Jessen did not provide their views on the likelihood that posttraumatic stress disorder would result to the Office of Legal Counsel, do you?
A     That is a double negative. I do not I'm sorry.
Q     You don't have specific knowledge
A     Right.
Q     that Mitchell and Jessen did not provide their views on the likelihood of PTSD to the Office of Legal Counsel?
A     I do not have specific knowledge of that.
Q     And when you say in Paragraph 22 of your declaration that Mitchell and Jessen were not involved in OLC's assessment of the legality of the techniques, that is because you don't specifically recall Mitchell and Jessen speaking to OLC?
A     No I mean, yes.
Q     Sorry?
A     I don't recall. I don't recall that ever happening, no.
Q     Okay. But you don't have a specific recollection that information provided by Mitchell and Jessen was not considered by OLC?
A     No.
Q     Okay. Thank you.
MR. LADIN: Let's take a break for just a moment, if that is all right.
THE WITNESS: All right.
THE VIDEOGRAPHER: The time is 10:50 a.m. we are going off the record.
(Recess taken -- 10:50 a.m.)
(After recess -- 10:57 a.m.)
THE VIDEOGRAPHER: 10:57 a.m., on the record.
BY MR. LADIN:
Q     So, I just want to return to the cable we have been discussing that was Exhibit J to your declaration.
A     Right.
Q     So, you describe that as a conversion of the August 1, 2002, Bybee memo in Paragraph 44 of your declaration
A     Yes.
Q     that you had sent to Green, the black site identified as Green.
A     Correct.
MR. BENNETT: Keep your voice up, please.
BY MR. LADIN:
Q     So, you have seen this cable before?
A     I'm sure I did.
Q     Well, who drafted this paragraph of your declaration?
A     I did.
Q     And, in doing so, did you examine the cable at Exhibit J?
A     Yes.
Q     So, turning to that cable, I would just like to walk through it. On the page we were looking at stamped Bates 1763, the cable you had sent to the black site that refers to SERE psychologists on the interrogation team, do you know who those SERE psychologists are?
MR. BENNETT: Then or now?
BY MR. LADIN:
Q     Do you now know who those SERE psychologists are?
A     I believe so, yes.
Q     And is that Drs. Mitchell and Jessen?
A     Yes.
Q     So, in this cable is there an indication that Drs. Mitchell and Jessen made a representation about whether these techniques could cause severe mental or physical pain or suffering?
MR. BENNETT: I'm going to object on the basis that the document speaks for itself.
He has identified it as an exhibit, so
MR. LADIN: I understand.
I just want to get his take on the document.
MR. BENNETT: Go ahead, over my objection, go ahead.
THE WITNESS: I'm sorry, could you
BY MR. LADIN:
Q     Sure. In this document that you had sent to the black site, does it indicate that the SERE psychologists on the interrogation team, which means Mitchell and Jessen, gave an indication of whether their techniques would produce severe mental or physical pain or suffering?
MR. BENNETT: And where are you referring to?
MR. SMITH: Objection.
MR. LADIN: So that is the bottom paragraph.
MR. BENNETT: Objection.
Go ahead.
THE WITNESS: I'm just reading it again.
Yes, that is what it says, yes.
BY MR. LADIN:
Q     Okay. And, with that in mind, do you still maintain that Mitchell and Jessen had no role in the OLC's consideration of the legality of the techniques?
MR. SMITH: Objection.
You can answer.
THE WITNESS: Well, as I indicated earlier, what I meant to say in that paragraph that I was trying to get across, is that they had no, to my knowledge, they had no interactions with the OLC during the course of the OLC deliberation.
BY MR. LADIN:
Q     But, in fact, they did provide information that OLC considered in assessing the legality of the techniques?
A     Appears to be the case, yes.
Q     Now, when you initiated the process with OLC, to review the legality of the techniques, did you ask for evaluations of all of the techniques that Mitchell and Jessen recommended?
A     Yes, all of the 12 original techniques, yes, asked for a collective evaluation.
Q     And did you ask for the evaluation of any other techniques?
A     No. Just the ones that, the 12 that had become part of the record.
Q     And these 12 techniques were recommended by Mitchell and Jessen?
A     Well, they were recommended by CTC management.
Q     And as far as you know, was someone besides Mitchell and Jessen involved in selecting the techniques?
MR. SMITH: Objection.
THE WITNESS: Yes, I think, my recollection was there were a number of people in CTC involved in that process.
BY MR. LADIN:
Q     Now, once you turned over the assessment process to OLC, would it be correct to say that you wanted legal cover from OLC?
MR. BENNETT: Well, I'm going to object.
What do you mean by cover?
MR. LADIN: I'm actually trying to use a term from your book.
So, maybe it is just easiest if we, if we distribute those pages.
MR. BENNETT: But I want to be sure his use of the term and yours is the same.
That is my concern.
MR. LADIN: I appreciate that.
And I think the best way will probably be to have Mr. Rizzo explain it.
MR. HANNER: Could you tell us which pages?
MR. LADIN: Sure.
It is on Page 188.
MR. HANNER: Thank you.
MR. LADIN: And it is the paragraph at the middle of the page.
MR. BENNETT: Beginning with, "I arrived at the meeting"?
BY MR. LADIN:
Q     No, it says, "Above all I," on Page 188.
A     188. This looks familiar.
Q     Yes.
A     I'm sorry. So, what paragraph are we talking to, about here?
Q     So, the one that begins, "Above all."
A     Okay, I see, okay. Yes. "Above all I wanted a written OLC opinion in order to give the agency, for lack of a better term, legal cover."
Q     So, what do you mean by that?
A     The, well, I wanted to, the only reason I went to OLC was to get the agency definitive categorical legal guidance, either that the techniques did not violate the torture statute, or if any of them did. Because I wanted the CIA, my clients, to be protected, and be covered, if you will, down the road, if there were any, any political retribution, because of either course that the CIA was going to take, either to proceed with the program or scrub it before it began.
Q     And, would you say that you were agnostic as to the outcome of OLC's process?
MR. BENNETT: I'm going to object to the word, agnostic.
I don't know what that means in terms of
MR. LADIN: Sure.
BY MR. LADIN:
Q     Did you have a preference you are suggesting or, if I'm understanding you correctly, you are saying you gave the process over to OLC. Did you have a preferred outcome in terms of their decision?
A     No, not really. I just wanted something definitive in writing, one way or the other, so the agency would have that.
Q     And, did you have the sense that others at the agency also had no particular view, one way or the other, as to what the outcome of that process should be?
A     Well, I think it is fair to say that the people in the CTC thought these techniques were absolutely necessary and vital. So, I'm sure they wanted an outcome that would, that would come out in favor of these things being able to be carried out lawfully.
Q     Let's take a look at Bates 1160.
MR. LADIN: Let's mark this as, I think, Exhibit 47, please.
MR. LADIN: Oh, I believe we forgot to mark your book.
I'm sorry.
Thank you.
(Exhibit Number 47 marked for identification.)
MR. BENNETT: Okay.
So, we are on 48, then?
MR. LADIN: Yes.
MR. BENNETT: Right?
MR. LADIN: Sorry, let's mark the book as 47, or the book excerpt as 47.
(Exhibit Number 48 marked for identification.)
BY MR. LADIN:
Q     Yes. What I'm going to ask you about is Paragraph 7.
A     Right.
Q     So, here it says that a formal declination of prosecution might be sought for any specific methods which the team believes would be effective, but which might not otherwise be permissible. Do you remember being involved in a process seeking a formal declination of prosecution?
A     You mean in the context of this, do I remember this being part of this cable or just part of a process to seek declination?
Q     Well, let's start with the cable. Have you seen this cable before?
A     Ever? I, I can't remember.
Q     Do you remember CTC legal being involved in a back and forth with the black site that was considering different interrogation strategies for Abu Zubaydah?
A     I'm generally aware of it. I'm generally aware of that.
Q     Were you consulted during that process?
A     I'm sure I was.
Q     And do you remember the guidance being given that the interrogation team should rule out nothing whatsoever that they believed may be effective, but instead they should come on back to CTC legal, which will get them the approvals?
A     No, I don't remember that.
Q     Do you remember that there was a suggestion made that a formal declination of prosecution could be used to provide further legal cover for the interrogation team?
A     Well, what I remember is in one of my meetings with the Justice Department and the OLC, leading up to this opinion, I posed the question whether declination of prosecution was feasible. And, the assistant Attorney General Criminal Division, Michael Chertoff, immediately told me it was not. And that was the end of that.
Q     Had you ever sought a formal declination of prosecution prior to that?
A     No.
Q     Have you ever sought one subsequently?
A     No.
Q     So, do you agree it is a fairly extraordinary thing to seek?
MR. BENNETT: I object to the form of the question.
The word, extraordinary, means different things to different people.
THE WITNESS: Should I answer?
MR. BENNETT: Go ahead.
Over my objection.
THE WITNESS: Well, it was extraordinary times.
BY MR. LADIN:
Q     Did Chertoff tell you why he would not provide a declination of prosecution?
A     He said they never do that.
Q     And it was your idea to seek it from him?
A     Well, it was my idea to ask about the possibility, yes.
Q     And was that because there was a possibility that this might transgress criminal law?
A     No. I mean, I was just asking because I wanted to secure maximum legal protection for the agency, in any feasible and legitimate form.
Q     And you don't read let me take that back. Now, a declination of prosecution is a request that even if a criminal law is violated, the Justice Department not prosecute; is that correct?
A     That was my understanding, yes.
Q     So, if no criminal law is violated, the declination of prosecution would not serve any particular function?
A     That is correct.
Q     Eventually OLC came back and authorized all of the Mitchell and Jessen techniques, except for mock burial, right?
A     Correct.
Q     Did you have an understanding as to why mock burial was being treated differently?
A     Well, my understanding was several days prior to the issuance of the OLC memo of August 1, 2002, John Yoo, Y-O-O, called me to say that they were having, I believe he said a difficulty getting there, in terms of the torture statute on mock burial. And was it, did we consider it absolutely necessary to have, because it was he said it might slow down the rest of the completion of the memo, OLC memo.
Q     When you say difficulty getting there, what do you mean?
A     Well, I didn't say it. He did. I'm just quoting to you what he said to me.
Q     So, what did you understand him to mean?
A     Well, I understood him to mean that they were not sure legally that they could authorize, justify the use of that particular technique.
Q     And did they say we won't approve it, or did they say it might take more time?
A     He didn't say we will not approve it. He said it would take more time. And they were having trouble getting there, I believe is the phrase he used. And did we actually have to have that particular technique.
Q     And then you relayed that holdup to the interrogation team; is that right?
A     Yes, I basically asked the question, is this technique something in your experience and expertise that is absolutely a must-have.
Q     And if they had said yes, you would have gone back to John Yoo?
A     Yes.
Q     But they didn't say they needed it?
A     No, they said they did not need it and they wanted they didn't want that to hold up the completion of the rest of the memo.
Q     And did they have a different view of the necessity of the waterboard that was communicated to you?
MR. BENNETT: Well, I'm going to object to the form.
I don't know who they is.
MR. LADIN: Sure.
Thank you.
MR. BENNETT: Would you be specific.
BY MR. LADIN:
Q     Yes. Did the interrogation team have a different view that they communicated to you as to the necessity for the waterboard?
MR. SMITH: Objection.
THE WITNESS: No. I mean, the waterboard, that particular technique, OLC didn't, never expressed the same hesitation as they did about the mock burial.
So, all of the techniques that were proposed were deemed important by the CTC.
We never got to the point where I had to ask them whether or not they needed to have the waterboard, because again, John Yoo, only indicated the mock burial technique was posing problems for them.
BY MR. LADIN:
Q     Well, if we could go back to Exhibit 18.
A     All right.
Q     I'm going to ask you about Paragraph 4.
A     Okay.
Q     So, this is feedback that the IC SERE psychologists are providing as part of the OLC approval process.
A     Yes.
Q     And if you look, they say, "IC SERE psychologists recommend using an escalating interrogation strategy that has a high probability of overwhelming subjects' ability to resist. To accomplish this, the escalation must employ" excuse me. "The escalation must culminate with pressure which is absolutely convincing." And then it says, "The plan hinges on the use of an absolutely convincing technique. The waterboard meets this need."
A     Correct.
Q     Is it your understanding that OLC had some concerns about the waterboard, that this is feedback that is responsive to those concerns?
A     At this point I can't, I can't remember. I mean, they asked questions about many of the techniques. I'm sure they asked questions about the waterboard, but I can't remember what they are at this point.
Q     Would you have been aware of any techniques, aside from these 12 that were submitted to OLC for approval?
A     I'm sorry, I don't could you, was I aware at the time, or have I ever been aware, or what?
Q     Sure. Let me ask it in all of those forms. So, are you aware right now of any other techniques that had been submitted to OLC in this 2002 period for approval?
A     No.
MR. BENNETT: Let him finish his question before you answer.
BY MR. LADIN:
Q     And, would you have been aware at the time if CIA was seeking legal advice from OLC about the use of different techniques?
A     Yes.
Q     Would it have been possible for the CIA to make a decision to use other physically coercive techniques without you knowing about it in 2002?
MR. SMITH: Objection.
MR. BENNETT: I object to that possible.
I mean, anything is possible.
MR. LADIN: Sure.
BY MR. LADIN:
Q     As far as your understanding of the way the CIA operated, once a decision was made to use a physically coercive technique, it would go to your office for approval?
A     Yes. For approval for the legality, yes.
Q     So, as far as you know, bearing in mind your experience in the CIA, they could not have made a decision about using physically coercive techniques without going through your office?
A     They, being CTC?
Q     CTC.
A     They could not have made a decision well, they would have had to go through our office to secure legal approval.
Q     And no techniques were submitted by your office to CTC, except for those 12 techniques in 2002?
A     Those were the 12 techniques that were submitted to me, yes.
Q     And the only techniques that OLC evaluated and approved in 2002 were these Mitchell and Jessen techniques?
MR. SMITH: Objection.
You can answer.
THE WITNESS: Yes, as best I can recall.
BY MR. LADIN:
Q     Okay. Turning back to your declaration. So, at Paragraph 50 on Page 9.
A     Wait a second. Yes.
Q     You say within a few months of the August 1, 2002 Bybee memo
MR. BENNETT: Which paragraph?
THE WITNESS: 50.
MR. LADIN: 50.
MR. BENNETT: Okay, I'm sorry.
Go ahead.
BY MR. LADIN:
Q     You say the OLC confirmed that the EITs could be used on other HVDs. How did that work?
MR. BENNETT: I am not sure what that means.
I object to the form.
MR. LADIN: Sure.
Let me ask it another way.
BY MR. LADIN:
Q     You say that the OLC confirmed that EITs could be used on other HVDs within a few months of the Bybee memo; is that correct?
A     That's correct.
Q     How did the OLC confirm that?
A     I asked them if they could. A few months after the Bybee memo, the CIA captured and detained Khalid Sheikh Mohammed. He was the well, he was, at that point in time, at least, the biggest capture. And, the CTC people, again, determined he was not cooperating, would not cooperate. And, so, they wanted to explore the possibility of using similar techniques that had been used on Zubaydah on KSM.
Q     You said similar techniques. Were they not identical?
A     I don't think they were absolutely identical. That is my recollection.
Q     Do you recall any differences?
A     I don't believe that the so-called bug in the box scenario. That was tailored for Zubaydah. I don't believe that that was ever under consideration for Khalid Sheikh Mohammed.
Q     And when you say tailored to Zubaydah, in what way was it tailored to Zubaydah?
A     Well, the assessments of Zubaydah at the time concluded that he was very afraid of insects. So, this is part of his psychological makeup. So, that is why this particular technique was put together for him.
Q     Now, in the next paragraph of your declaration, you point to Exhibit N, which are specific guidance for the interrogations of detainees
A     Right.
Q     held at the black sites. This has been marked as Exhibit 38.
(Whereupon, previously marked Exhibit 38, first referral.)
BY MR. LADIN:
Q     This is 38. And so, you said, I believe, that these are the guidelines for interrogations at the black sites; is that correct?
A     Yes.
Q     And so this is the instructions as to the black sites as to how they are to conduct interrogations in compliance with the legal authorization; is that right?
A     Yes, as I recall, yes.
Q     And this appears to have been sent to Cobalt; is that right?
A     That is what it says on the document. The word, Cobalt, is contained there.
Q     So, does this document describe the EIT program in 2003?
A     Yes.
Q     And it lists, it lists on Page 1172 the enhanced techniques that were part of the EIT program in 2003?
A     Correct.
Q     And these techniques are, except for well, actually it does have the bug in the box. So, these techniques are the 12 Abu Zubaydah techniques sorry. The 11, minus mock burial?
A     Appear to be.
Q     So, was the EIT program a duplication of the techniques that were authorized for Abu Zubaydah that could now be used on other detainees?
MR. SMITH: Objection.
THE WITNESS: Well, they say the Abu Zubaydah, the techniques developed for Abu Zubaydah proved to serve as a template for the enhanced interrogation techniques that were used on a number of subsequent high value detainees.
BY MR. LADIN:
Q     Do you see any technique listed here that is different than the ones that were approved on Abu Zubaydah?
A     No, they appear to be the ones.
Q     Okay. And these were the techniques that are contained in Exhibit 17?
A     Well, again you gave me the one with the blank page.
Q     Oh, I do apologize for that.
A     Get rid of this one. Yes.
Q     And, eventually, the programs, the techniques that were part of the EIT program changed; is that correct?
A     Yes.
Q     But, certain of the core enhanced interrogation techniques persisted throughout the life of the interrogation program; is that correct?
A     I don't know what you mean by core.
Q     Were there a number of techniques that were present in the enhanced interrogation program for the lifetime of that program?
A     Yes.
Q     And other of the techniques were dropped?
A     That's correct.
Q     Had you kept up with Drs. Mitchell and Jessen during the years of the program?
A     Had I kept up with them?
Q     Did you consult with them periodically?
A     I would, as the years went on, sure, I talked to them. And they talked to me. Yes.
Q     And did you get reports about their activities in the program?
A     I'm sure they told me what they were doing at any particular time, yes.
Q     Do you have so, on the, on Frontline I believe you said that, later in the program, Mitchell and Jessen were training CIA people to conduct the interrogations. They were skilled trainers and patient teachers. Do you stand by that?
A     I do.
Q     So, your understanding was that they taught other interrogators how to use their techniques?
A     Yes.
Q     How do, they trained other CIA interrogators in the program?
A     That was my understanding, yes.
Q     And over the years you dealt with different permutations of the EIT program, all of the way up until 2007, when Secretary of State Rice wanted a personal briefing on the program?
A     Well, that is correct. I mean, I was involved in it after that point, too.
Q     All right. We will get there, but let's start with that meeting with Secretary Rice. So, in your book, I don't know which, I don't know what Exhibit Number it is, I think it is maybe 47. Is that?
A     Okay.
Q     So, if you look at the end of the excerpt, it is Pages 269 to 270. If you want to take a look.
A     All right.
Q     So, it should be the, right by the end of the copy.
A     Right, right, right. Right. Beginning with a failed nomination. Yes. I remember that. Yes.
Q     Yes. So, you write there, "Secretary of State Rice wanted a personal briefing on the newly refined slimmed down set of techniques, and she wanted to get it directly from the original architects of the program, two outside psychologists the agency had hired under contract more than five years earlier." When you write two outside psychologists, are you referring to Drs. Mitchell and Jessen?
A     Yes.
Q     And you said Secretary of State Rice wanted a personal briefing on the EIT program?
A     Yes.
Q     And she wanted to get it directly from the original architects?
A     Yes.
Q     And those original architects are Drs. Mitchell and Jessen?
A     Yes.
Q     And then on Page 270, you write, just at the very top, "The two EIT architects," and then you describe the meeting. And then you say, "They talked about their backgrounds," in the second sentence, "the genesis of the original techniques they came up with, the safeguards built into the program, the way the program evolved and had been refined over the years," and so on. Do you stand by that account?
A     Yes. Based on my recollection, as I was writing, yes.
Q     So, Drs. Mitchell and Jessen described the genesis of the original techniques they came up with?
A     That was my recollection.
Q     And they described the safeguards?
A     Yes.
Q     Do you remember what those safeguards were?
A     Well, I'm sure it included the presence of medical personnel. You will need to come back to headquarters for approvals for each technique. Things of that nature.
Q     And some of those safeguards changed over the years, correct?
A     No. I'm not aware of that. Could you be more specific?
Q     Sure. There came a time when the Office of Medical Services made recommendations as to how the use of the waterboard should be different than it was early on in the program. Do you recall that?
A     Yes, vaguely, yes.
Q     Okay. There were also changes to the amount of time sleep deprivation was authorized for?
A     That's correct, that's correct.
Q     So, you write here that they described the way the program had evolved and been refined over the years.
A     Correct.
Q     What did you mean by that?
A     Well, by late 2006, the program had been refined, as we talked about earlier. Some of the techniques were no longer being used like the waterboard. Others like sleep deprivation. The periods of authorized sleep deprivation beginning in late 2006 were shrunk. There was less duration. That kind of thing.
Q     And, do you know what Drs. Mitchell and Jessen role was in the refinement of the program at that time?
A     No, no. At the time I was talking to our CTC lawyers and the head of CTC at the time. So, those were the people that I was communicating with.
Q     And what were the techniques Secretary Rice was concerned about during this meeting?
MR. BENNETT: Well, I object.
Because you are assuming she was concerned.
MR. LADIN: Sure.
BY MR. LADIN:
Q     Was Secretary Rice concerned about any techniques at this meeting?
A     I don't, I don't recall any specific techniques. As I said in the book, my recollection was she was highly complimentary of the way the program had been conducted and managed. She had previously expressed concerns about the use of nudity on the detainees.
Q     Uh-huh. What did you
A     I don't, I don't recall what I was starting to say was I don't recall that specific, her specifically bringing that up at the meeting, though.
Q     Do you remember what her concern about nudity was?
A     Nudity? No, she had expressed it in various principal committee meetings for the previous two years. I mean my impression was she just thought it was unduly undignified and insulting to do that.
Q     If you look at what was Exhibit U to your declaration, which you identified in your declaration as an e-mail memorializing the content of that meeting.
A     Right.
MR. LADIN: And we can mark that one.
Oh, sorry, it has already been marked as Exhibit 35.
(Whereupon, previously marked Exhibit 35, first referral.)
THE WITNESS: Okay.
BY MR. LADIN:
Q     So, is this a contemporaneous record of the meeting that took place with Secretary Rice?
A     It appears to be, yes.
Q     And if you look on the second page, it says that the Secretary expressed her concern about a particular sleep deprivation method.
MR. BENNETT: Where are you referring to?
MR. LADIN: Sure, sorry.
So, the paragraph begins on the second page.
BY MR. LADIN:
Q     It says, "During the discussion of the sleep deprivation EIT, the Secretary of State made it clear that her concern did not center on depriving a detainee of sleep, but the specific method of implementation and the image the EIT evoked. She expressed concern that this image was reminiscent of images associated with Abu Ghraib." Is that accurate?
A     Yes, it refreshes my recollection. Yes. I believe I remember something, a discussion along those lines, yes.
Q     And her concern was that a detainee who was nude and shackled in a standing sleep deprivation posture evoked images of Abu Ghraib?
A     That it what it says, yes.
Q     And that is what you recall being expressed in the meeting?
A     Yes, I do now. But I didn't when I was writing my book, because I didn't have contemporaneous documents to look at.
Q     Now having refreshed your recollection, do you recall whether the Secretary of State asked for some change to be made in the sleep deprivation technique?
A     No, I don't recall that.
Q     Okay. Well, if you look at the last couple of paragraphs on the page, it says that Doctors Jessen and Mitchell indicated the possibility of devising alternative methods to deprive sleep. And then, at the very bottom of the page it says, "Jessen and Mitchell will work on alternative methods for implementing sleep deprivation EIT and proposed courses of action." Does that refresh your recollection?
A     Vaguely, vaguely. I mean, I certainly don't deny that that came up. I have no reason to dispute it. I just don't really remember that part of the conversation.
Q     Do you know why it would be Mitchell and Jessen who would be tasked with devising a new form of sleep deprivation?
A     Well, they were the, you know, it was Dr. Mitchell, Dr. Jessen and me representing the CIA at the meeting. So, I mean, it was a colloquy among us and Secretary Rice. With them being there and them being the experts, she asked them.
Q     And as far as you are aware, there would not be other people in the CIA who would be more appropriately tasked with devising new EITs?
A     No, I there could well have been. They just didn't, were not in the room with the Secretary at the time.
Q     And that is because the Secretary wanted the architects of the program there?
A     Yes.
Q     I would like to show you the Office of Professional Responsibility report.
A     Okay.
MR. LADIN: So, if we could mark this as Exhibit 49.
It is quite long.
(Exhibit Number 49 marked for identification.)
THE WITNESS: Yes, I remember it.
BY MR. LADIN:
Q     You've seen the, this report before, correct?
A     Yes, I have.
Q     And you were interviewed as part of it?
A     I submitted to a voluntary interview, yes.
Q     If you look on Page 126?
MS. QUERNS: Are you marking this?
MR. LADIN: Yes, I am sorry.
I think it has been marked.
What is the exhibit number?
I'm sorry.
Did you
THE REPORTER: 49.
MR. LADIN: 49.
MR. BENNETT: What page?
BY MR. LADIN:
Q     If you look at the bottom paragraph, this refers to an interview with Dan Levin. Do you remember Dan Levin?
A     Oh, sure, sure.
Q     Did you interact with him as part of your
MS. QUERNS: What page are you on?
MR. LADIN: 126.
BY MR. LADIN:
Q     Did you interact with Mr. Levin as part of your work in the General Counsel's Office?
A     Sure.
Q     So, if you look at the last paragraph here on 126, it says that he asked CIA for information about how sleep deprivation was administered. Do you see that?
A     I see it.
Q     And he says he was surprised to learn that no one at OLC had previously asked the CIA about the methods used to keep prisoners awake.
A     Yes, I see that.
Q     Is that your recollection as well that no one at OLC had asked CIA for information about how sleep deprivation was administered?
A     No, I just have no recollection one way or the other about that.
Q     Okay. It says that he learned that detainees were typically shackled in a standing position naked, except for a diaper, with their hands handcuffed at head level to a chain bolted to the ceiling. Is that your understanding of how the sleep deprivation EIT was administered?
A     As I recall, yes.
Q     Now, do you think sleep deprivation is fairly similar to jet lag?
MR. BENNETT: I object.
MR. LADIN: Sure.
MR. BENNETT: But, if you can, answer that.
THE WITNESS: I have no idea.
I have no idea.
I don't
BY MR. LADIN:
Q     Okay. And just finally on that meeting with Secretary Rice, if you look back at the last page of the e-mail that was described in the meeting.
A     Oh, wait. I've got to go back. Are we done with this or should I keep it?
Q     You should keep it.
A     Okay. That is exhibit what, what was that?
MR. BENNETT: U.
THE WITNESS: Okay.
I'm back there.
Go ahead.
BY MR. LADIN:
Q     Sure. So, it says Dr. Mitchell this is on the second page near the bottom.
A     Uh-huh.
Q     It says, "Dr. Mitchell raised the issue of nudity. While the Secretary of State was polite, she was firm. She had already made her decision on nudity, so there was no need for discussion on that issue." Do you recall that?
A     Yes. I mean, you know, I indicated a few minutes ago, I do recall her concerns about nudity being a subject there. I couldn't remember the exact way it came up, until reading this.
Q     And so when her decision was firm, that means she was saying no more nudity?
A     That is correct.
Q     And had the idea, going into the meeting with Drs. Mitchell and Jessen, had you discussed the nudity EIT?
A     I don't recall whether you mean we discussed, that I discussed it with Drs. Mitchell and Jessen?
Q     That's right.
A     We had a, you know, a preparatory that is not the word. We had a discussion about how the meeting, we were going to do the briefing. I don't recall whether we specifically talked about us raising the issue of nudity. But it had been a concern of hers for some time.
Q     And was your understanding that unless she eliminated it let me rephrase that. Was your understanding that Dr. Mitchell wanted to preserve nudity as an enhanced interrogation technique?
A     As I recall, again it was CTC that thought nudity was a valuable and important feature of the program.
Q     Okay. So, getting back to that guidance we looked at, that was Exhibit N to your declaration, marked as Exhibit 38.
A     Okay.
Q     You said that the, this guidance appears to have been sent to Cobalt in January of 2003. Is that right?
A     Well, I'm just reading the word, Cobalt, that are typed here. So, I'm just again, this is a document that was, that is what, 14 years old. I can't specifically remember where it was sent. But I was just reacting to it being these words, Cobalt, on there.
Q     Do you have a reason to believe this document was not sent to Cobalt?
A     No.
Q     And you've identified this as the guidance that went out to black sites, right?
A     That's correct, yes.
(Whereupon, previously marked Exhibit 21, first referral.)
BY MR. LADIN:
Q     So, I would like to show you what we've previously marked as Exhibit Number 21 which is, this is a document the CIA produced in response to the Senate report, the Senate Subcommittee on Intelligence.
A     Okay.
MR. LADIN: Here is one for you.
MR. BENNETT: Thank you.
BY MR. LADIN:
Q     Have you seen that document before?
A     No.
Q     Okay. I would like to direct your attention to Page 58. And it is confusing, because this document is paginated multiple times. But, we will get there. The 58 that I'm referring to begins with the words, "However, nine of the study's examples."
A     Yes, I've got it.
MR. SMITH: Give us a second.
MR. LADIN: Sure.
BY MR. LADIN:
Q     I'm going to ask you about the second paragraph here.
MR. SMITH: The paragraph that begins with "We also believe"?
MR. LADIN: That's correct.
THE WITNESS: Okay, I see it.
BY MR. LADIN:
Q     Okay. So, it says, "After the standard was approved and communicated in January 2003, interrogation operations at," redacted, "were generally in line with the guidance, with some isolated exceptions identified in the study and described elsewhere in the response." And you said you have not seen this document before; is that right?
A     No, no.
Q     All right. Well, let's well, let me first ask, is it your understanding that after January 2003, interrogation operations at Cobalt were generally in line with the guidance that was sent to Cobalt, that is your Exhibit N?
A     That was my understanding, yes.
(Whereupon, previously marked Exhibit 10, first referral.)
BY MR. LADIN:
Q     Okay. I would like to also show you what has been previously marked as Exhibit 10. You've seen this report before I think; is that right?
A     That is the IG report.
Q     Yes.
A     Yes, I've seen that.
Q     And you were interviewed as part of it?
A     I must have been. I was being interviewed a lot in those days.
Q     Yes. If you go to the page marked Bates 1392.
A     1392. That doesn't compute.
Q     Sorry, there is multiple Bates stamps. There is the D series, in which this would be D63. But below that, there a U.S. Bates number.
A     Okay. So, if I go to D63, I will find it
Q     You will. Unless this is also multiply paginated. And the paragraph I'm asking you about is 122.
A     Okay, I've got it. Okay.
Q     And it says, the word, Cobalt, is sort of inserted there, above a redaction.
A     Right.
Q     And it says, "The employment of EITs is now reportedly well codified. Written interrogation plans are prepared and sent to headquarters for each detainee." Is that your understanding of how the EIT program worked?
A     Yes.
Q     So, written interrogation plans would be prepared for different detainees, sent to headquarters for approval, and then that approval would flow back to the black site?
A     If there was an approval, yes, that is how it would work.
Q     And this appears to indicate that that process was in place at Cobalt?
A     Well, could we define our terms? The Cobalt was not a site where the high value detainees that were subjected to the enhanced interrogation program were housed. Those are, when I say black sites, what I mean to say is those secret prisons where the high value detainees, beginning with Abu Zubaydah, were detained.
Q     So, is it your understanding that EITs were not authorized at Cobalt?
A     That's correct.
Q     So, when it says, "At Cobalt the employment of EITs is now reportedly well codified," you understand that to mean that in fact no EITs were authorized at Cobalt?
A     That is my recollection.
Q     What is your recollection based on?
A     My memory. I mean. Is that
Q     So, to return to Exhibit N to your declaration, that is the guidance that went out to black sites, correct?
A     Right, right. January, yes, '03.
Q     And that guidance went out to Cobalt; is that correct?
A     It appears to have been.
Q     And it describes the process whereby detainees at Cobalt could be subjected to enhanced interrogation techniques; is that correct?
MR. BENNETT: Well, it speaks for itself.
So I object.
BY MR. LADIN:
Q     Well, to the extent that, Mr. Rizzo, to the extent that you are testifying about whether EITs were used at Cobalt or not, I'm hoping to refresh your recollection with the exhibit to your declaration.
A     Yes. No, I mean I think my recollection remains what I said, was that no EITs were carried out at Cobalt. I, I would direct your attention to Page 2 of Exhibit N, which describes so-called standard techniques.
Q     Uh-huh.
A     So, those, for lack of detailed terms, my understanding was standard techniques were those, at least the authorized techniques were to be, the standard techniques were to be carried out at Cobalt, not the enhanced interrogation techniques.
Q     Well, let's take a look at Tab 13. Now your understanding is that if EITs were used on a let me rephrase that. You said on Frontline that there were abuses in the program, but that every such abuse would be reported internally by CIA either to the IG or to the Criminal Division of the Department of Justice; is that right?
A     Yes. What I've said, yes.
Q     And the use of EITs in an unauthorized fashion would result in such a report?
A     Sure, it would be unauthorized.
MR. BENNETT: Keep your voice up.
MR. LADIN: So, let's mark this as is this 50?
THE REPORTER: 50.
(Exhibit Number 50 marked for identification.)
BY MR. LADIN:
Q     Okay. So, this is Exhibit 50. And these referrals to the IG, they would be even for people who are in the EIT program but had unauthorized EITs used on them; is that correct?
A     They were people in the EIT program that were administered techniques that were not part of the EIT program. Is that what you are saying?
Q     Yes. Or that weren't authorized for that particular detainee.
A     Right, right.
Q     Does this appear to be one of those investigations?
A     I have no idea. I don't know what this is. Disposition Memorandum. Is this an Inspector General document? I don't know.
Q     Yes.
A     Okay.
Q     All right. So, if you turn to the second page actually, I think there is why don't you turn to Page 10. So, in that first paragraph, 26, on Page 10
A     Okay.
Q     does that describe the approval process for EITs that you are familiar with in that CTC RDG, "Received a cable requesting authorizations to use EITs on a detainee"?
MR. SMITH: Objection.
THE WITNESS: Yes.
BY MR. LADIN:
Q     And then there was a response with authorization to use the EITs?
A     In this particular case, or just as a procedural matter?
Q     Yes. I'm not asking about the facts of this case, but I'm asking if it describes the EIT program procedures as you understand them?
A     Yes, it describes the process.
Q     And so, if you turn to Page 11, it says that a cable describes the interrogation of Abd al-Karim on April 2003. The cable states that improved enhanced techniques of walling and water dousing were used. And then they redact the names of the participants. Is that a description of a detainee receiving EITs in the EIT program?
A     Let me see if I can make sense of this paragraph. Yes, I mean that sounds about right. Again, it is a little difficult to parse what they are talking about. But, yes, that sounds about right.
Q     Well, let's
MR. SMITH: Could we ask you to keep your voice up, please?
THE WITNESS: I'm sorry.
I am a quiet guy.
I will try to talk louder.
BY MR. LADIN:
Q     So, actually, let's just turn back to the CIA response, which is, I think, Exhibit 21 over there in your pile.
A     Oh, the one I haven't seen, okay. Right?
Q     Yes. Right below the special review.
A     Okay. Okay.
Q     And if you go to Page 56.
MR. SMITH: Which one?
MR. LADIN: Sure.
It is 21.
And it's page 56.
And if there is multiple 56s, this is the one that begins, "We agree."
BY MR. LADIN:
Q     So, I just want to ask you about that paragraph.
A     Uh-huh.
Q     So, it says, "CIA used enhanced techniques which could have exacerbated injuries sustained by detainees during capture. As acknowledged in our response to Conclusion 20, techniques that had not been previously approved by headquarters were applied to two Libyan detainees who had foot juries. In cases involving these detainees, headquarters ultimately approved the techniques the following months as components of revised interrogation plans." Does headquarters' approval of an interrogation plan that involves enhanced interrogation techniques follow the procedures that you said the EIT program let me rephrase that. Does this appear to describe two detainees in the EIT program?
MR. SMITH: Objection.
THE WITNESS: It appears to.
BY MR. LADIN:
Q     In your view, if headquarters approved the use of EITs on a detainee, was that detainee part of the EIT program?
A     Yes, if the EITs were approved on a detainee, yes, that would be part of the EIT program.
Q     Okay. So, I would like to show you Tab 16, which was previously marked as Exhibit Number 44.
(Whereupon, previously marked Exhibit 44, first referral.)
BY MR. LADIN:
Q     And, a large amount of this document is redacted, but I'm going to ask you about Bates 1580 to 81.
MR. SMITH: Sorry?
MR. LADIN: 1580 to 81.
THE WITNESS: Okay.
BY MR. LADIN:
Q     And it says, "While in CIA custody Abd al-Karim underwent the following EITs: nudity, sleep deprivation, insult slap, abdominal slap, attention grasp, cramped confinement, water dousing, walling, and stress positions."
A     I see that, yes.
Q     Would the CIA have a reason to lie about using techniques on a detainee that it didn't actually use EITs on?
MR. BENNETT: I'm going to object to that.
THE WITNESS: They would have no reason to lie about that.
BY MR. LADIN:
Q     In your experience did the CIA keep records about which EITs were used on detainees in the EIT program?
A     That is my understanding, yes.
Q     And in your understanding, those records were accurate?
A     I can't guarantee that every one of them were accurate, but ...
Q     Do you have any reason to suspect that the CIA's records were inaccurate?
MR. SMITH: Objection.
THE WITNESS: No, I have no particular reason to believe that.
I just can't, you know, sit here now and say for certain everything that was put down was absolutely accurate, that is all.
BY MR. LADIN:
Q     Sure. And your understanding is that if the CIA used EITs on a detainee who was not authorized for the use of those EITs, that would generate an investigation?
A     Yes.
Q     And is it your understanding that there were many such cases in which the CIA used EITs on unauthorized detainees?
MR. BENNETT: I'm going to object to the word, many, because that means different things to different people.
MR. LADIN: Sure.
THE WITNESS: I would use the word, occasionally.
BY MR. LADIN:
Q     Occasionally.
A     Yes.
Q     And in the absence of such an investigation, would you assume that a detainee had been approved for techniques let me rephrase that to avoid the word, assume.
MR. BENNETT: Good.
You read my mind.
BY MR. LADIN:
Q     Yes. Would the lack of I've learned from you.
MR. BENNETT: Thank you.
Any time.
BY MR. LADIN:
Q     Appreciate it. Would the lack of an investigation as to the use of EITs on a detainee indicate that the EITs had been approved for use on that detainee?
A     Yes, I mean, if there was no investigation, then of course that means the techniques were approved, had been approved.
Q     So, on the basis of this document, does this document indicate to you that Abd al-Karim a/k/a Mohamed Ahmed al-Shoroeiya was part of the CIA's EIT program?
MR. SMITH: Objection.
THE WITNESS: I'm sorry?
BY MR. LADIN:
Q     That is page 1580.
A     I thought we were done with this one. 1580, okay. Yes, I don't know what this document is, honestly, it is so redacted. Like, I can't tell what it is. I can't tell if this is an investigation or just a statement and a memo or what?
Q     Oh, this document was provided in response to a discovery request asking about which EITs were used on particular individuals. And it is a document that you are absolutely right is very redacted. It begins with bios, and it appears to list the biographies of different detainees?
MR. SMITH: Object to the characterization of the document.
THE WITNESS: Right.
MR. BENNETT: And what is the question?
BY MR. LADIN:
Q     The question is, on the basis of this document that was provided by the CIA, does it indicate to you that this individual was part of the EIT program?
MR. SMITH: Objection.
THE WITNESS: Well, it indicates he underwent the following EITs.
That is what it says.
BY MR. LADIN:
Q     And does that indicate to you that this individual was part of the EIT program?
MR. SMITH: Objection.
THE WITNESS: Not necessarily.
I, you know, it doesn't say he underwent the following approved EITs.
BY MR. LADIN:
Q     Well, if we can go back to the document you were just looking at which was the CIA's response.
A     Okay. Okay. Direct me to a page.
Q     Sure. It is Page 56. It is the document we were just looking at.
A     Right.
Q     And it says, "In the cases involving those detainees, Abu Hazim and Abd al-Karim, headquarters ultimately approved the techniques.
A     That's correct, right.
Q     Does that indicate to you that those two detainees were part of the CIA's EIT program?
MR. SMITH: Objection.
THE WITNESS: If headquarters ultimately approved the techniques, I would say they were part of the EIT program.
BY MR. LADIN:
Q     So, specifically, you would say on the basis of the CIA's documents that you have been provided, Abd al-Karim was part of the CIA's EIT program?
MR. SMITH: Objection.
THE WITNESS: That is what it seems to indicate.
BY MR. LADIN:
Q     Do you have any reason to doubt that he was part of the CIA's EIT program?
MR. SMITH: Objection.
THE WITNESS: I have no understanding either way.
I honestly don't remember this case.
BY MR. LADIN:
Q     And turning back to the document with the biographies, which is Exhibit Number 44. If you could just turn to page 1567.
A     Okay. Got it.
Q     And do you see there a description of another detainee was subjected to a list of EITs?
A     Give me a second.
Q     Sure.
A     Yes, I see where it says he underwent the following EITs.
Q     And those EITs are the EITs of the CIA's EIT program?
A     They look like it. Yes, they appear to be.
Q     Do you have any reason to believe that this person was not part of the CIA's EIT program?
MR. SMITH: Objection.
THE WITNESS: I have no reason to dispute it or confirm it.
Again, I don't remember this name or this case.
BY MR. LADIN:
Q     Did the defendants ask you when you were preparing the declaration about additional detainees, beyond Gul Rahman, who you wrote about specifically in your declaration?
MR. BENNETT: I'm going to object.
There is no basis that the defendants had nothing to do with the preparation of the declaration.
MR. LADIN: Did the defendants see the declaration before it was finalized?
MR. BENNETT: I don't know.
I don't think so.
BY MR. LADIN:
Q     Well, did you, did you speak with the defendants about your declaration?
A     The defendants?
Q     Yes.
A     No.
Q     Did you speak with their attorneys about the declaration?
A     No.
Q     How did you decide what your declaration would include?
A     Well, my attorneys indicated the areas that I should try to cover in the declaration and
MR. BENNETT: I'm going to object beyond that.
MR. LADIN: And that would be on the basis of privilege?
MR. BENNETT: Well, I don't think you have any right to ask him why I decided to include certain things in his declaration.
MR. LADIN: Sure.
And
MR. BENNETT: And, you have been operating on the assumption that the defendants participated in that.
And I'm saying that he says that is not correct.
So, go ahead and ask your next question.
BY MR. LADIN:
Q     Sure, I'm not looking to pry. I'm purely curious about whether so, your declaration makes a statement about whether Gul Rahman was part of the EIT program.
A     Right.
Q     Your declaration makes no statements about the other plaintiffs in this case. Your declaration was provided as part of this case.
A     Right.
Q     What I'm trying to ask you, and perhaps you can't answer, is whether the defendants asked you to declare something about the other plaintiffs in this case?
A     No.
Q     Okay. Did you ever seek OLC guidance for a separate EIT program that was distinct from the EIT program we have been discussing?
A     No. I mean we discussed earlier the fact that the EIT program as the years went on was changed or refined. And I sought guidance on well, I sought guidance throughout the course of the program for OLC. But, a, you are asking about a separate, another EIT program separate and apart from that?
Q     Yes.
A     No.
Q     And did you ever promulgate any guidance within the CIA about the use of a separate EIT program than the ones that Mitchell and Jessen had recommended for Abu Zubaydah and were later standardized?
A     No recollection of doing any such thing.
Q     Did you ever hear about investigations of EIT use on either Salim Abdullah or Mohamed al-Karim?
A     You know, sitting here today, I don't remember that. But I'm not saying it, I was not told about these things at the time.
Q     Okay.
MR. SCHUELKE: I'm told that the staff has got lunch outside.
Is this a good time?
MR. LADIN: Sure.
Yes, let's break right here.
THE VIDEOGRAPHER: Off the record at 12:12.
(Recess taken -- 12:12 p.m.)
(After recess -- 12:57 p.m.)
THE VIDEOGRAPHER: We are now on the record.
This is the beginning of Videotape 2 in the deposition of John Rizzo.
The time now is 12:57 p.m.
BY MR. LADIN:
Q     Mr. Rizzo, I would like to direct your attention to document that we will mark
MR. LADIN: Is this 51?
(Exhibit Number 51 marked for identification.)
BY MR. LADIN:
Q     And this is an Inspector General report from the CIA about the death of Gul Rahman. And I'm going to ask you about Page 1287.
A     Okay, I'm there.
Q     Okay. So, do you see it says at the top of the page, "This cable written by Jessen for a different detainee requested permission to apply the following moderate value target interrogation pressures as deemed appropriate by Jessen: isolation, sleep deprivation, sensory deprivation, facial slap, body slap, attention grasp, and stress positions." Do you see that?
A     I do.
Q     Is it your understanding that stress positions are an enhanced interrogation technique?
A     I don't believe they were I don't believe they were listed as such.
Q     Maybe we can compare it to Exhibit N to your declaration, which is the interrogation guidance.
A     Okay.
Q     Do you see where it lists the enhanced techniques?
A     Let's see. Is that Paragraph 2? I know I've looked at them before. I just can't remember
MR. BENNETT: Try not to mumble.
As your thought process is, she has got she doesn't know what to take down and what not to take down.
THE WITNESS: I see, okay.
MR. BENNETT: Do you see what I mean?
THE WITNESS: Yes, I understand.
MR. BENNETT: Okay.
THE WITNESS: Yes, I see in the, on Page 1172, in the first full paragraph, a reference to stress positions as part of the enhanced interrogation technique.
BY MR. LADIN:
Q     And do you see sleep deprivation listed there?
A     I do.
Q     What about facial slap?
A     Yes.
Q     So, does this, turning back to the table that is described on Page 17 of the IG report, would that appear to be proposing the use of enhanced interrogation techniques on a medium value detainee?
MR. SMITH: Objection.
THE WITNESS: Yeah.
I mean, it would, that is what it says.
BY MR. LADIN:
Q     Okay. And it is saying, "Additional interrogation methods for Cobalt detainees." Do you see that at the top?
A     Yes.
Q     Okay. Do you have any reason to doubt that the CIA IG report is accurate?
MR. SMITH: Objection.
THE WITNESS: Honestly, it has been a long time since I looked at this.
In my experience IG reports, sometimes they are totally accurate.
Other times there are things in it that are not accurate.
So, I just can't judge at this point.
BY MR. LADIN:
Q     Have you ever encountered an IG report that made up, say, a cable from whole cloth?
A     No.
Q     As part of your job, would you review the IG reports that were created as part of the interrogation program?
A     Well, sure. Yes. I'm sure I read this one when it was completed, yes.
Q     And if you thought at the time that it had misstatements in it, would it have been part of your job to bring that to the attention of the IG?
A     Sure.
Q     Do you have any recollection of identifying misstatements in this report?
A     I don't.
Q     Okay. I would like to turn your attention to what has been previously marked as Exhibit Number 34.
(Whereupon, previously marked Exhibit 34, first referral.)
BY MR. LADIN:
Q     And I'm going to ask you about the second page of this cable.
A     Okay, I've read it.
Q     Okay. So, do you see at the end of Paragraph Number 3, it says, "There is no indication he suffers from any psychopathology, nor that he would be profoundly or permanently affected by continuing interrogations to include HVT enhanced measures."
A     That is correct.
Q     Do you know what HVT stands for?
A     I believe it is high value terrorist.
Q     So, this person who is being evaluated is being evaluated for techniques including HVT enhanced measures?
A     That is what it says, yes.
Q     And then the next paragraph makes the recommendation that employing enhanced measures is not the first or best option to yield positive results?
A     Wait a minute. Let me I have to read that next paragraph. Okay, yes.
Q     Does this cable appear to set forth an assessment of whether to employ enhanced measures on the subject of the cable?
A     It appears to, yes.
Q     Now, you wrote in your declaration that Gul Rahman was not part of the high value detainee enhanced interrogation technique program.
A     That's correct.
Q     Why did you write that?
A     Because he was, while I remember the Gul Rahman case, he had not been approved, to the best of my recollection and knowledge, for inclusion in the enhanced interrogation program.
Q     And by not been approved, you mean that a cable had been sent to headquarters and had been denied? Or, what do you mean by that?
A     Well, I just didn't have any recollection that, certainly not details about whether a cable had been sent to headquarters or not. My recollection is simply that he was not part of the HVT sorry, the enhanced interrogation program.
Q     And, do you have a sense of why he would be evaluated for HVT techniques by an HVT interrogator if he were not part of the HVT program?
A     I don't, I don't know. I just don't know.
Q     And beyond your recollection that no enhanced interrogation techniques were approved for his use, do you have any other knowledge on which you based your statement that he was not part of the EIT program?
A     Well, as I said earlier, my recollection was that detainees at Cobalt were not part of the enhanced interrogation program.
Q     And that continues to be your understanding, in spite of the document you just looked at that said that well, we can look at the document. If you turn back
A     I'm sorry. Which document?
Q     This was just the exhibit that we just marked. I believe it was Exhibit 51.
A     Oh, the IG report. Okay. Refer me to the paragraph you want me to look at again.
Q     Sure. So, it is Bates 1287.
A     Okay. You are talking about the paragraph at the top. Correct?
Q     Yes, which says, which talks about additional interrogation methods for Cobalt detainees.
A     Yes.
Q     And it suggests using interrogation pressures that you've identified as enhanced interrogation techniques?
A     Well, it says it requested permission to apply these certain EITs, yes.
Q     Yes. Does that change at all your recollection of whether enhanced interrogation techniques were used at Cobalt?
A     Not really. All this says is that Mr. Dr. Jessen I can't, honestly, I can't tell from this paragraph. This is confusing to me. This cable written by Jessen for a different detainee. So, I can't honestly I can't, just looking at it in isolation, I can't tell what this cable is talking about. But, it is requesting permission, whoever it is, to do it.
Q     And, earlier you identified the guidance as the enhanced interrogation techniques as being sent to Cobalt. Did you have an understanding of why that guidance was sent, if enhanced interrogation techniques were not authorized for use at Cobalt?
A     No, as I said earlier, there is a section in there, in the guidance about standard interrogation techniques. Perhaps that was why it was sent.
Q     All right. Let's return to the larger IG report, which
MR. LADIN: Do you remember what exhibit that is?
Yes, I previously marked as Exhibit 10.
MR. SMITH: 10?
THE WITNESS: This?
BY MR. LADIN:
Q     Yes.
A     Okay. Just one second. So, if you go to page
MR. LADIN: Bless you.
MR. BENNETT: Thank you.
BY MR. LADIN:
Q     If you go to either Page D63 or U.S. Bates 1392. And if you look again at Paragraph 122.
A     All right. I see it.
Q     This seems to describe a change in the use of EIT at Cobalt after the promulgation of the guidance. Is that accurate?
A     It appears to be what it says.
Q     And it says that there are procedures for using EITs, and that written interrogation plans are prepared and sent to headquarters for each detainee.
A     That is what it says.
Q     Do you have a reason to believe that is not accurate?
A     No.
Q     When you look at this, does it change at all your recollection as to whether enhanced interrogation techniques were used at Cobalt?
A     Well, no. I mean my recollection remains the same. This speaks for itself.
Q     Okay. But you don't have a reason to believe that this is inaccurate?
A     That this paragraph no, I don't have any reason to believe it is inaccurate.
Q     Okay. Do you think that there was a separate interrogation program that Gul Rahman was part of?
A     Separate interrogation program?
Q     Separate from the CIA's.
A     Enhanced interrogation program?
Q     Yes.
A     Well, he wasn't as I say, my recollection is he wasn't part of the enhanced interrogation program. So, and he wasn't a CIA detainee. So, I guess he was in a separate program, yes.
Q     What would that program be?
A     What is the name of it? I mean
Q     What do you understand to be the contours of the program that was not the EIT program in which Mr. Rahman was evaluated for the use of enhanced measures?
A     Well, it was the use of measures that didn't, that were not part of the EIT menu of techniques. It was, since I mentioned earlier, this so-called standard interrogation.
Q     Well, if we can just return to that cable we were looking at, which is U.S. Bates 1057. It has been marked Exhibit 34.
A     Okay, I've got it.
Q     If you look at the end of Paragraph 3, when it says HVT enhanced measures, is your understanding that those are enhanced interrogation techniques?
A     That says enhanced measures.
Q     Do you have an understanding of what that term means?
A     Actually I don't. As I say, I refer to it, I've always referred to
MR. BENNETT: Keep your voice up.
THE WITNESS: I've always referred to the program as enhanced interrogation program.
BY MR. LADIN:
Q     Okay. Do you, sitting here today, do you have any understanding of HVT enhanced measures as including something different than the enhanced interrogation techniques?
A     Something different than the enhanced interrogation? No, I don't honestly that phrase means, is puzzling to me. I don't know what it, honestly what it entails.
Q     Okay. All right. Well, let's go back to the CIA's response to the Senate report, which
MR. LADIN: What is that one marked?
BY MR. LADIN:
Q     Marked as 21. This is the one that begins with, "Memorandum for."
A     Yes. Okay.
Q     And you said you had not previously read this document; is that correct?
A     That's correct, I have not.
Q     Do you have any reason to believe that the CIA's comments to the Senate were inaccurate?
MR. SMITH: Objection.
THE WITNESS: I have no reason for believing that, no.
BY MR. LADIN:
Q     In your experience, would the CIA make misrepresentations to members of Congress about this enhanced interrogation program?
A     No.
Q     Okay. If you turn to Page 25. Do you see there the
MR. SMITH: Give us a second.
THE WITNESS: Hold it.
BY MR. LADIN:
Q     Sure. This is the Page 25 that begins, "CIA remains grateful."
A     All right, I have it.
Q     Okay. Do you see the second bullet point?
A     I do.
Q     It says, "We agree that CIA should have done more from the beginning of the program to ensure there was no conflict of interest, real or potential, with regard to the contractor psychologists who designed and executed those techniques while also playing a role in evaluating their effectiveness as well as other closely related tasks." Did you have an understanding that the contractor psychologists who designed and executed the techniques played a role in evaluating the techniques' effectiveness?
A     I believe I had that impression, yes.
Q     And did that suggest to you the existence of a conflict of interest?
A     No, it did not.
Q     Do you disagree with the CIA's conclusion that there should have been more done to prevent a conflict of interest from arising with regard to the contractor psychologists?
A     Do I believe that now, or at the time?
Q     Yes, do you disagree with the CIA's statement here?
A     No. No.
Q     So, you would agree that the CIA should have done more to ensure there was no conflict of interest when the contractor psychologists evaluated their own techniques?
A     Yes, I think that is a fair, a fair suggestion.
Q     If you look back at the IG report.
A     This is a big one?
Q     Actually, sorry. Never mind, we don't really need to do that. Let's go back to the office, or professional responsibility report instead.
A     Okay.
Q     I'm going to ask you about a statement on Page 100.
A     Okay.
Q     So, it says there that you had an MFR of a March 24, 2003, meeting?
MR. SMITH: What exhibit is before the witness?
MR. FREY: This is 239.
MR. SMITH: What page?
THE WITNESS: What page is this?
MR. LADIN: Page 100.
THE WITNESS: I don't see that.
BY MR. LADIN:
Q     Sorry. It might begin on the previous page. I'm finding it myself. Sorry, I've pointed you to the wrong page. Did you ever voice any concerns about representations that the United States government had made that all detainees held by the United States were to be treated humanely?
A     I'm sorry. Could you rephrase? Are you, am I supposed to be looking at a document here, or
Q     Well, first, just as to your own recollection. Do you ever recall there being a concern about a statement made by the United States and I see what the issue is here. The issue is that this is not the most recent version of the OPR, so this still contains classification markings, so it is not going to be in this OPR. But, to turn to the question, was there ever a time when the administration made a public statement that all detainees held by the U.S. government were being treated humanely, and a meeting was held to discuss whether that representation was accurate as to detainees being held by the CIA?
A     Yes, yes, I generally remember that episode, yes.
Q     Do you remember what happened?
MR. SMITH: Objection.
THE WITNESS: I remember there was a, the issue was, I believe, a statement the White House was putting out as part of National Day of I mean it was some ceremonial announcement.
And it contained a statement that the United States treated detainees humanely or should treat, believed in humane treatment of detainees.
Something like that.
And there was an issue, if my memory is correct, Scott Moller was the General Counsel at that time.
And he and the General Counsel of the Department of Defense and the White House Counsel engaged in a discussion about whether that statement was accurate.
BY MR. LADIN:
Q     And do you remember what the conclusion was?
A     I believe the statement was allowed to stand. Although, honestly, I wasn't, as I say it was more the General Counsel than I who was involved in that episode. So, I'm just giving you the extent of my recollection of it.
Q     Do you remember the statement having to be clarified so that it referred only to Department of Defense detainees?
A     I don't remember that.
Q     Okay.
A     I don't remember that.
Q     Well, let's look at a letter written by John Bellinger, so this would be Exhibit 52.
(Exhibit Number 52 marked for identification.)
BY MR. LADIN:
Q     And the question I'm going to ask you about is on Page 3.
A     Okay, I'm at 3.
Q     And so here John Bellinger writes that "Nudity combined with shackling a person in order to prevent sleep would be viewed as inconsistent with Paragraph 1C of Common Article 3." And specifically that his understanding is that "A reasonable person, as well as world opinion, would consider such acts to constitute humiliation and degradation of a level to be considered an outrage upon personal dignity."
A     Yes, I see that.
Q     Sitting here today, do you think a reasonable person would agree that shackling a prisoner to the ceiling while they are naked or in a diaper is humiliating?
MR. SMITH: Objection.
MR. BENNETT: I'm going to object in that.
THE WITNESS: Do I answer or no?
MR. BENNETT: Yes.
THE WITNESS: Yes, I think it can be humiliating.
BY MR. LADIN:
Q     Do you think it could be considered degrading?
MR. SMITH: Objection.
THE WITNESS: I think humiliating is, again, is a definitional term.
I don't know about degrading.
BY MR. LADIN:
Q     So, you don't think it would be degrading treatment to have someone shackled to the ceiling in a diaper?
A     I don't know. If you, if I were just to say offhand, I would say it was humiliating. That would be the term I would use to best describe it.
Q     Are you aware that the U.S. courts have found solitary confinement in dark cells with no opportunity for cleanliness to be degrading?
MR. BENNETT: Objection.
Go ahead, if you know.
THE WITNESS: I don't know, I don't know that.
BY MR. LADIN:
Q     Would it make a difference to you if you did know that?
MR. SMITH: Objection.
MR. BENNETT: Objection, don't answer that.
THE WITNESS: No, okay.
MR. BENNETT: Well, how can you answer that?
MR. LADIN: Well, I don't know.
I would like to
MR. BENNETT: Repeat the question.
BY MR. LADIN:
Q     Would it make a difference to you if you knew let me perhaps, let me rephrase it better?
MR. BENNETT: Okay.
BY MR. LADIN:
Q     Would it make a difference to you in your assessment of whether this was degrading whether U.S. courts had found the keeping of prisoners in dark cells in solitary with no opportunity to clean themselves to be degrading?
MR. SMITH: Objection.
MR. BENNETT: Objection.
Go ahead, if you can.
THE WITNESS: Yes, that would.
I mean that would have an impact if the courts had held that, sure.
BY MR. LADIN:
Q     Okay. Now, the way the program was presented to you, EITs would only be used so long as the detainee was using resistance techniques; is that correct?
A     That's correct.
Q     And that is the information that you relayed to OLC?
A     I believe it was, yes.
Q     And, the premise was that the EITs would stop once the detainee became compliant?
A     Correct.
Q     And so the detainee could make the EITs stop at any time by complying?
A     Correct.
Q     Okay. Turning back to the CIA Inspector General's report. I'm going to ask you about
A     This is the big one, the special review?
Q     That's correct. And that is Exhibit 10.
A     All right.
Q     And I'm going to ask you about Bates 1422, which is Paragraph 206.
A     I am sorry. Could you give me the D number? That is easy for me to find that.
Q     Sure. But that might take me just a moment.
MR. SMITH: 226?
BY MR. LADIN:
Q     1422.
A     Oh, I see.
Q     Yes, so, Paragraph D93. Thank you.
A     Okay, D93.
Q     Okay. So, at Paragraph 206, do you see it says, "When a detainee did not respond to a question posed to him, the assumption at headquarters was that the detainee was holding back and knew more. Consequently headquarters recommended resumption of EITs."
A     I see that, yes.
Q     Have you ever heard of that concern?
A     I may have. I don't have any present recollection of hearing it.
Q     Okay. Let's take Abu Zubaydah's interrogation as an example. Can you get Bates 21 I'm sorry. It is at 21. It is Bates 2340.
A     Still in the IG report?
Q     No, sorry. I'm about to hand you a document.
MR. LADIN: So, let's, please mark this one.
(Exhibit Number 53 marked for identification.)
BY MR. LADIN:
Q     And I'm going to ask you about Paragraph 4 on the second page of the cable.
A     Okay. Give me a second. Yes, I see it.
Q     Okay. So it says that "At this stage it is unlikely highly unlikely according to the interrogation team that the subject has actionable "
MR. SMITH: Paragraph 4.
MR. LADIN: Paragraph 4, yes.
BY MR. LADIN:
Q     "That the subject has actionable new information about current threats." Do you see that?
A     Yes.
Q     And if you turn to the first page, you see a date of August 10th; is that right?
A     That's correct.
Q     Okay. If we turn to your book excerpts, which is, is that Exhibit 47?
MR. BENNETT: I'm sorry, where is the date August 10th?
MR. LADIN: At the top.
Sorry.
THE WITNESS: In the middle there.
MR. BENNETT: Doesn't that say August 2nd.
MR. LADIN: No, that is August '02, 2002.
THE WITNESS: Okay.
BY MR. LADIN:
Q     So, turning to your book excerpt, you wrote, on Page 193
A     Wait a minute. Is that part of the book excerpts you handed me earlier?
MR. LADIN: Uh-huh.
BY MR. LADIN:
Q     I think one of your attorneys actually has the book, itself.
A     I'm sorry, I can't get used to these double sides. Okay, go ahead.
Q     So you wrote that, "Just days after the EIT's began, they ended. They ended as soon as Zubaydah's resistance ended. He had reached the stage of what our outside consultants called learned helplessness." Do you see that?
A     On 192. Let's see.
Q     I think it is 193, actually.
MR. SMITH: Which paragraph?
BY MR. LADIN:
Q     Let's get there.
A     Yes, I see where that is now.
Q     Now, when you say "He had reached the stage are what our outside consultants called learned helplessness," the outside consultants are Drs. Mitchell and Jessen?
A     That's right.
Q     What did you understand the term learned helplessness to me?
A     Well I'm a layman. My understanding is that the notion that the detainee would recognize that further resistance would be futile.
Q     And so, therefore, he wouldn't be holding anything back?
A     Yes, correct.
Q     Okay. So, we just looked at a cable on Day 6, in which the team had assessed that Abdullah Zubaydah was not holding back actionable new information about current threats to the United States. That is at Paragraph 4.
A     Right.
Q     But it says that, "The team plans to maintain the current level of pressures to develop and refine this preliminary assessment." Do you see that?
A     I see that, yes.
Q     I would like you to look at another document.
MR. LADIN: So, let's mark this.
(Exhibit Number 54 marked for identification.)
BY MR. LADIN:
Q     If you turn to the second page.
A     Okay.
Q     It says, "Subject has continued to say he knows of no threats to the United States other than those he has already mentioned." And then it says, "In short" that is at the very top. And then right before Paragraph C, it says, "In short, however, no significant new details emerged from sessions, especially in regards to new threat information."
A     I see that.
Q     And you see that this is now Day 11 of the aggressive interrogation phase sorry, that is still on the page you were on before.
A     Right. I wanted to look at the date of the cable, that is all. August 14th. Yes.
Q     And so this is now five days past the previous assessment, that he wasn't holding back information. It says, "He seemed to display" if you look at Paragraph 3, above the redaction. It says, "He seemed to display a desperate resignation at his inability to convince the interrogators that he was not holding back information." Do you see that?
A     Uh-huh.
Q     And do you see at the bottom, it says, "When the interrogators told him that his protest of ignorance regarding additional information about threats against the U.S. would not stop them from using the water board, subject eyes teared, his breathing increased, and he appeared desperate." Do you see that?
A     Yes, I see that.
Q     Were you made aware during the process of Abu Zubaydah's interrogation that several days after he had been assessed as compliant he was still being subjected to advanced interrogation techniques?
A     I don't remember being told that, no.
MR. LADIN: Please mark this as Exhibit 55.
(Exhibit Number 55 marked for identification.)
BY MR. LADIN:
Q     You can see that this cable is dated August 19th
A     Right.
Q     which is Day 16 of the aggressive interrogation phase. Now ten days past the, that first cable you looked at in which he was assessed to be compliant. If you look at the comment, it says, "Subject stated he had no new or additional information to provide at which time the interrogation team"
A     I'm sorry.
Q     Sorry.
A     Can you direct me to where you are reading from?
Q     Sure. It is the comment in the middle of the page.
A     "Subject was prepared for application of the waterboard." That one? Okay.
Q     Yes.
A     Okay, go ahead.
Q     And it says that, "He had no new or additional information to provide at which time the interrogation team brought in the waterboard. "Said he was repeatedly pressed and instructed that revealing the requested information would stop the procedure." Do you see that?
A     Yes.
Q     "He again stated he had no information in addition to that which he had already been provided. And he alternatively begged and cried that the procedure be stopped." Then it says, "He was strapped on to the board and once again given the opportunity to be responsive. After which he was waterboarded until, until he spasmed." Then it says that, "The interrogation team grilled the subject on the issue of operations and identities," and that
A     I'm sorry. I can't keep up with you.
Q     Sure.
A     Is it the same paragraph?
Q     Same paragraph.
A     Okay.
Q     It says that, "He continued to cry and claim ignorance of any additional information." And that, "This continued until he was distressed to the level that he was unable to effectively communicate."
A     Right, I see that.
Q     Did you know at the time that waterboarding was continuing ten days after Abu Zubaydah had been assessed as compliant?
A     I don't recall being aware of how many specific days he had been waterboarded. My recollection was what I described in the book. My recollection was that the waterboarding lasted for about a week.
Q     Yes. And this appears to indicate that he was still being waterboarded on Day 16; is that right?
A     That is what it appears to say, yes.
Q     And it says that he was instructed that revealing the requested information would stop the procedure?
A     That is what it says.
Q     That he begged and cried, but was not able to produce that information.
A     That is what it says, yes.
Q     And so he was waterboarded again?
A     Yes.
Q     Now, if we go back to the IG report, back to that page, which is Bates 1423. And that is D 94.
A     Right, I got it.
Q     And it says here on Paragraph 209, that, "The shortage of accurate and verifiable information available to the field to assess a detainee's compliance is evidenced in the final waterboard session of Abu Zubaydah. "According to Senior CTC officer, the interrogation team considered Abdullah Zubaydah to be compliant and wanted to terminate the EITs." But it looks like the CTC and headquarters believed that he continued to withhold information.
MR. SMITH: Objection.
That's not what it says.
MR. LADIN: Sorry.
BY MR. LADIN:
Q     If you turn the page it says, "CTC believed that Abu Zubaydah continued to withhold information." And then if you turn the page, it says that, "This generated substantial pressure from headquarters to continue the use of EITs."
A     Yes, I see that.
Q     Were you aware that the interrogation team on the ground had repeatedly recommended that the subject was compliant?
A     I don't remember that specifically. I remember there were occasions that the field and headquarters had disagreements about continuation of EITs on a given detainee. But, I don't remember this specific case.
Q     Would it be accurate to say that Abu Zubaydah could have terminated the use of EITs at any time by complying?
A     Well, that was yeah, that was, that was the understanding. That was my understanding.
Q     And looking at these cables and at the IG report, do you believe that understanding to be correct?
A     I can't I'm just, you know, I'm just reading this. It has been a long time. I really, am not I can't, I can't make a judgment on that.
Q     Well, let's, I mean let's look at Paragraph 209 again. It says, "The shortage of accurate and verifiable information available to assess a detainee's compliance is evidenced in the final waterboard session." Do you see that?
A     Yes, I see that.
Q     Do you understand that to mean that his waterboarding was caused by a lack of ability to properly assess his compliance?
A     Let's see. I'm sorry. I didn't follow that. Could you just rephrase it just, I'm trying to read it here, okay. All right. Okay, I'm sorry. Could you ask the question again?
Q     Sure. Is it your understanding reading this that Abu Zubaydah was capable of terminating the employance of EITs on him by complying?
MR. BENNETT: Well, I object because all you are asking him is to read things in the report.
MR. LADIN: Well, this is a report that Mr. Rizzo, part of the production of, this was part of his job to read this report and respond to the questions of the IG.
MR. BENNETT: But the report is the report, and it speaks for itself, so
MR. LADIN: Well, I'm trying to understand an aspect of the authorization here and I'm hoping
MR. BENNETT: Okay, but I'm just
MR. LADIN: I appreciate that.
MR. BENNETT: He is not confirming things.
He is just saying he is just confirming these are the words that are in the report.
THE WITNESS: That is correct.
MR. BENNETT: Go ahead.
THE WITNESS: That is what it says here.
MR. BENNETT: Go ahead, over my objection, but go ahead.
BY MR. LADIN:
Q     Let's go to the legal guidance that was given from OLC. Tab 11.
MR. LADIN: Let's mark this exhibit, please.
(Exhibit Number 56 marked for identification.)
BY MR. LADIN:
Q     Okay. Have you seen this document before?
A     I have.
Q     Okay. I'm going to ask you about a paragraph on Bates 319.
MR. SMITH: Have you marked the document as an exhibit?
MR. LADIN: Sure, I think it is marked.
THE WITNESS: 56? 319?
BY MR. LADIN:
Q     Yes.
A     Okay, I have it.
Q     And do you see the last paragraph there?
MR. SMITH: I'm sorry.
What page, please?
MR. LADIN: Sure, it is Bates 319, also marked as 262 on this document.
MR. SMITH: Is it U.S. 319?
MR. LADIN: Yes.
THE WITNESS: All right, okay.
BY MR. LADIN:
Q     So, this is a document from OLC to you; is that correct?
A     Correct.
Q     And this is based on the information that CIA provided OLC on the use of the techniques?
A     Yes.
Q     And turning back to the CIA IG report.
A     Okay. What page?
Q     It is Bates 1443 to 1444. Paragraph 264.
A     1443.
Q     To 1444. Do you see Paragraph 264 at the bottom?
A     Are you talking about 44 or 43?
Q     At the bottom of 43.
A     The paragraph that begins, "Agency officers report"?
Q     Yep.
A     Okay. Right. I see that.
Q     Do you see that it says, "Some participants judged that CTC assessments, the effect that detainees are withholding information are not always supported by an objective evaluation of available information but are too heavily based on presumptions of what the individual might or should know"?
A     Yes, I see that.
Q     Does that seem to you consistent with the OLC guidance we were just looking at which says that CIA asked for already known information to gauge whether the detainee has reached the point at which he is no longer required to resist?
MR. SMITH: Objection.
THE WITNESS: Well, the paragraph of the OLC letter, memo you referred to is the policy as I recollect it.
The statement in the IG report from three years earlier that predated the OLC memo.
So, I can't, actually I can't judge the relevance of the two.
BY MR. LADIN:
Q     Sure. I'm not asking you to judge the relevance. I'm just saying as a factual matter. Leaving aside the difference in the timeline
A     Yes, yes.
Q     the 2003 report is different than how the process is described in this 2007 OLC guidance, isn't it?
A     Well, according to well, some agency officers reported that, yes.
Q     So, these agency officers would be the people on the ground using the techniques?
A     I have no idea who they are. They didn't
Q     Well it says, doesn't it? It says that some participants in the program, particularly field interrogators. Field interrogators would be the people using the techniques, wouldn't they?
A     Yes.
Q     That is in
A     That's correct.
Q     And so is what those field operators report inconsistent with the information that the OLC was describing here in the 2007 document?
A     It appears to be inconsistent, yes. It is their assertions.
Q     So, at least as far as those field interrogators were concerned, in that earlier 2003 time period, detainees couldn't always avoid the use of EITs by complying, could they?
MR. SMITH: Objection.
THE WITNESS: Well, unless some participants in the program particularly field interrogators apparently believed.
BY MR. LADIN:
Q     And do you know if the program changed as a result of the concerns that were written down in the IG report?
A     Well, I do recall the IG report, there were a number of recommendations that were acted upon. This was the first significant review of the interrogation program. So, as a result of this report, there were changes made. I can't sit here today and tell you specifically whether this was one of them. But, there were changes made. This report was taken very seriously by the agency.
Q     And you didn't yourself observe interrogations, right?
A     I never did, no.
Q     And OLC, did they observe interrogations?
A     I don't believe so. I don't believe so. Because they would have had to no. Not to my recollection.
Q     And as far as you were concerned, you were relying on what people in the field and people in CTC were telling you about the program; is that right?
A     That's correct.
Q     And you relied on them to implement faithfully the legal guidance that you were sending?
A     Yes.
MR. LADIN: Let's see is this is in the version of the OPR that we have.
It is not.
BY MR. LADIN:
Q     Did you ever hear a concern that the waterboard was overused on some detainees?
A     I probably, I probably did.
MR. BENNETT: Just don't guess.
Yes, no, full answer, but do you remember?
THE WITNESS: Repeat the question, I'm sorry.
BY MR. LADIN:
Q     Did you ever hear a concern that the waterboard was overused on some detainees?
A     Yes, I heard that.
Q     Do you remember the details of what you heard?
A     No. No. I can't remember which detainees were being talked about.
Q     Well, staying with the IG report. If you look at Bates number 1360.
A     Okay, I'm on 1360.
Q     Do you see the Footnote Number 26?
A     I do.
Q     Now it says, "Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used with the psychologists and interrogators was either efficacious or medically safe." Do you see that?
A     I do.
Q     Do you remember that concern being communicated to you?
A     Well, I remember reading about it in the IG report.
Q     And did that lead to any changes in the program that you remember?
A     I believe so. Again, this report led to a number of changes. I can't remember specifically whether this particular concern was subsequently addressed or not. I just remember there was, OMS took this position.
Q     It also says that they were not consulted in the initial analysis of the risks and benefits of EITs. And that they believed that the reported sophistication of the preliminary IT review was exaggerated to OLC. Do you see that?
A     Yes.
Q     Do you agree with that criticism?
A     I have no way of knowing. I didn't myself communicate with OMS at the beginning of the program. As I told you, my discussions were with CTC.
Q     Did you ever communicate with OMS about the program?
A     I'm sure I must have, yes.
Q     Do you recall anything that OMS told you about their views on the program?
A     Actually what I remember is the OMS people I talked to about the program was worthwhile and professionally managed.
Q     Okay. Let's look at the OPR report.
A     Okay.
Q     On pages, on Page 140.
A     Okay, I have 140.
Q     Do you remember Mr. Philbin from the Office of Legal Counsel?
A     Pat Philbin, yes.
Q     Do you see here at the bottom of Page 140, there is a statement from Mr. Philbin?
A     Yes, I see that.
Q     He says that, "It had not been known in 2002 that detainees were kept in diapers, potentially for days at a time."
A     Yes, I see that.
Q     Do you remember whether CIA informed OLC that in 2002, that detainees were kept in diapers for potentially days at a time?
A     I can't remember. There were lots of discussions with OLC in 2002.
Q     Do you have any reason to doubt Mr. Philbin's account?
A     No, I mean, Mr. Philbin is a good attorney and an honorable man.
Q     So, on the next Page 141, when he says that, "All of these factors combined to create a picture of the interrogation process that was quite different than the one presented in 2002." Would you agree that that is an accurate statement?
A     No, I would not agree with that statement.
Q     So, what part of it do you disagree with?
A     Well, there are references to the fact that Mr. Philbin says that all of these factors combined to create a picture that the interrogation process that was quite different from the one presented in 2002. I don't believe what the IG report found, its factual determinations were, I don't agree that they were, quote, quite different from the one CIA presented to OLC in 2002.
Q     Well, it seems that he says specifically it had not been known that detainees were kept in diapers, potentially for days at a time. Do you contend that it was known by OLC?
A     I told you, I don't know, I don't know what was told I can't remember everything that was told to OLC during 2002.
Q     Right. And then he says that they also didn't know that the sleep deprivation technique involved keeping detainees awake by shackling their hands to the ceiling.
A     Yes, on that one, my recollection is that we did tell OLC about the shackling.
Q     Okay. Do you have a specific recollection of that?
A     No.
Q     Okay. And then, "Dietary manipulation and water dosing," he says, "had not been described to OLC and were not considered in the classified Bybee memo." Is that accurate?
A     No, I would disagree with that. The, again it is hard to locate a total accuracy, when we told something to justice in a period 15 years ago. I have a firm recollection we told OLC at some point. I can't tell you when exactly, that the, that Ensure, you know, the liquid, was being provided to the detainees.
Q     Does it trouble you that Mr. Philbin had this reaction to the CIA's program?
MR. BENNETT: I'm going to object to that, but go ahead and answer, if you can.
THE WITNESS: No, it didn't trouble me.
I have a lot of respect for Mr. Philbin.
So, he is certainly free to express his opinions.
BY MR. LADIN:
Q     And what about when John Bellinger said that "he viewed nudity combined with shackling a person to prevent sleep to be humiliation and degradation of a level that would be considered an outrage upon personal dignity." Does that trouble you?
MR. BENNETT: Objection, go ahead.
MR. SMITH: Objection.
THE WITNESS: Does it trouble me that Bellinger said it?
BY MR. LADIN:
Q     Yes.
A     No. John was expressing his sincerely held opinions. As we discussed earlier, it also reflected the view of his superior, Secretary Rice.
Q     The data that you at CIA received about the safety of the SERE techniques was entirely about the use of SERE techniques on volunteers; is that correct?
A     Okay. We are going back now to the beginning of the program, when it was first presented
Q     At any point?
A     Well, what I remember about reference to the SERE program was mostly at the beginning, as we discussed earlier. So, I'm sorry. Just repeat the question again.
Q     Sure. You were presented with a list of techniques.
A     Right.
Q     You were told they were based to some degree on SERE training.
A     Right.
Q     You were presented and you presented OLC with data as to the safety of those techniques in terms of SERE.
A     Uh-huh.
Q     All of that safety data, that was based on SERE training of volunteers; is that correct?
A     That was my understanding, yes.
Q     And, neither Mitchell nor Jessen nor anyone else pointed you to studies of prisoners of war; is that correct?
A     Not that I recall, no.
Q     And you didn't, yourself, review, as far as you recall, any studies of actual prisoners of war; is that correct?
A     I did not.
MR. LADIN: In fact, I believe, let's mark this as 52 oh, 57.
(Exhibit Number 57 marked for identification.)
BY MR. LADIN:
Q     You were interviewed by the New York Times about the long-term effects of some people who had been subjected to enhanced interrogation techniques; is that correct?
A     Yes, right.
Q     And you told the Times that in hindsight
MR. BENNETT: Where are you in the article?
MR. LADIN: Sure, you can review it.
I will find out where I am in the article and then I will tell you.
I am on Page 6, but you can probably begin on Page 5.
Specifically, it says that, "General Xenakis found decades of paper decades of papers on the effects of abusive practices." Do you see that.
MR. SMITH: I don't.
THE WITNESS: Is it at the bottom.
BY MR. LADIN:
Q     Sure. It is on Page 5. It says, "Back home in Virginia."
A     General Xenakis, yes. Right. I see that.
Q     It says, "He found decades of papers on the issue, science that had not been considered when the government began crafting new interrogation policies after September 11th." Do you see that?
A     I see that, yes.
Q     Do you remember any research into the effects of abusive practices at the time that these techniques were being considered?
A     Abusive
Q     Abusive practices, rather than training on volunteers?
A     Yes. No, I don't recall that.
Q     And on the next page, there is a quote from you that says, "In hindsight, that should have come to the floor." Do you see that?
A     Yes.
Q     Do you stand by that statement?
A     Yes, that is what I said, in hindsight. Sure.
Q     And you are a lawyer, of course, not a psychologist, correct?
A     I am not a psychologist.
Q     And you were not aware of the body of social science research that existed about prisoners of war; is that correct?
A     I was not, no.
Q     And that research was not brought to your attention by either Dr. Jessen nor Dr. Mitchell; is that correct?
A     I don't recall, frankly, anyone bringing it to my attention.
Q     Okay. Later on Page 6, it says that, "There was little incentive or time to find contrary evidence."
A     Sorry. I thought we had left that, sorry.
Q     Sorry. It is the second to the last paragraph on that page.
A     Let's see. Yes, I see it. Right.
Q     And it says there was little incentive or time well, I will read the full sentence. "With fear of another terrorist attack, there was little incentive or time to find contrary evidence. The government wanted a solution. They wanted a path to get these guys to talk."
A     Right.
Q     Do you stand by that assessment?
A     Well, I stand by the quote that is in quotes. I did say that. With respect to the first sentence, you know, I don't recall telling the reporters that using that phrase, there was little incentive or time to find contrary evidence. I just don't remember saying those words. But, the second, the second sentence is an accurate quote.
Q     And as to the first sentence, sitting here today, do you disagree with that?
A     Well, I disagree with, that there was little time to find contrary evidence. I would, I take issue with the idea of little incentive.
Q     Okay. And what specifically do you take issue with?
A     Well, the word, incentive. As I say, I don't recall using that term when I was talking to the reporter.
Q     Okay.
A     It is clear, it was clear to me and I, this is what I thought I articulated to them, was that there was, there wasn't much time. We didn't have the time to find contrary evidence because of the fear of a second attack, and that one of our detainees would, you know, was withholding back that information.
Q     Yes. So, you had an assessment that this detainee was employing resistance techniques, and that there were methods that would allow CIA to get through that resistance; is that right?
A     This detainee, being Abu Zubaydah.
Q     Abu Zubaydah, yes.
A     Yes.
Q     And there were experts who would employ those resistance techniques on Abu Zubaydah?
A     Yes.
Q     And would you say there was a lot of pressure to let these experts do what they said they could do?
A     No. No. There was a lot, I mean there was a lot of pressure to expose, find out about a second attack on the homeland. But, there was no pressure to determine what these experts, to do what they wanted to do. I don't remember that.
Q     Not what they wanted to do. But what they said they could do. They said they could figure out if he was withholding information.
A     Yes, no, no, I mean, that was important to find those things out, sure.
Q     Now, years later, a former POW gave his verdict on the program, and you write in your report that it affected you. On Page 242 of the excerpt.
A     242. Oh, you talking about Senator McCain?
Q     Yes. Well, you say you couldn't get his terse verdict to Porter, it is all torture, out of your head.
A     Yes.
Q     Why is that?
A     I mean a man with the background and the stature of Senator McCain, and the unique personal perspective and experience. For him, a man of that stature, and also a very powerful influential voice of the Senate to conclude, to say that that was all torture to him, that did have an impact on me, Because I knew that would be, his view would be influential.
Q     And part of that was because he had actually been tortured, right?
A     Right.
Q     Did you consult anyone else who had actually been tortured when you were evaluating the techniques?
MR. BENNETT: What, you imply that he consulted with McCain?
MR. LADIN: Sorry.
That is a good clarification.
BY MR. LADIN:
Q     Did you consult with anyone who had been tortured when you evaluated the techniques?
A     No. No. This portion of the book refers to a talk that the then CIA Director, Porter Goss, had with Senator McCain. I was not present when Senator McCain made that remark I talk about in the book. Porter came back and told me that is what McCain said.
Q     And while he told you that, some version of the CIA's EIT program still existed; is that correct?
A     Yes.
Q     And after you heard that, that verdict from Senator McCain, did you then inquire with anyone who had been tortured what their views on EITs were?
MR. SMITH: Objection.
THE WITNESS: No.
BY MR. LADIN:
Q     And do you know whether anyone else in CIA reached out to people who had actually endured torture to see what they had thought about the EITs?
A     Not that I'm aware, no.
Q     Okay. As the years have passed, do you think that mistakes were made in approving the EITs?
A     Well, I think mistakes were made in the program.
Q     And what are those mistakes?
A     I mean, there were, you know, there were well documented by now, occasional abuses of the program. People, people being subjected to techniques that were not approved. We made mistakes in terms of keeping the Congress informed. We should have, in retrospect, been more open with the details of the program to many more members of Congress earlier. Things of that nature.
Q     I believe when you talk about abuses, you are also referring to what happened to Mr. Rahman; is that right?
A     Sure, yes.
Q     You've described isolation and freezing temperature as torture?
A     Isolation, no. I mean, freezing temperature, it could be. It could be considered torture.
MR. LADIN: Just let's have this marked as Exhibit 58.
(Exhibit Number 58 marked for identification.)
BY MR. LADIN:
Q     So, here it says that you identified freezing temperatures and long periods of isolation in complete darkness as torture. Is that, is that not a statement you stand by?
A     Sorry, I haven't seen this. Let me look at this.
Q     Sure.
A     Okay. So, what part of this?
Q     So, just that second and third paragraph.
A     Okay. Yes, I say in the second paragraph that exposing prisoners to freezing temperature and long periods of isolation in complete darkness were not legally sanctioned. That's correct. I would characterize them as torture.
Q     Do you stand by that as to long periods of isolation in darkness?
A     It could be considered torture.
Q     Would you consider it torture?
MR. SMITH: Objection.
THE WITNESS: Well, I know they weren't I know they were not improved interrogation techniques.
Now, whether that crosses a legal line to torture, I can't say.
BY MR. LADIN:
Q     Well, what would your lay assessment be?
A     Well, the third sentence, the third, fourth paragraph, quotes me as saying, "So those were clearly abuses."
Q     It does. And then it also says, "I would characterize them as torture."
A     Yes.
Q     I just want to see whether you stand by that.
A     I mean, yes, I could, I would live with that, sure.
Q     Okay. Now, you are aware that the President of the United States has said that he believes torture works?
A     Yes.
MR. BENNETT: Which president?
MR. LADIN: The current one, President Donald Trump.
Are you just trying to make me say that?
MR. BENNETT: Yes, yes.
That is precisely what I was trying to do.
MR. LADIN: We still find that hard to say.
MR. BENNETT: You just got tight and you started to sweat.
MR. LADIN: I know.
THE WITNESS: Okay, can we get going here.
BY MR. LADIN:
Q     Absolutely. We are almost done.
MR. BENNETT: You are almost finished, right?
MR. LADIN: Absolutely.
BY MR. LADIN:
Q     So, President Trump has used the word torture in a positive way, hasn't he?
MR. BENNETT: Could you repeat the question?
BY MR. LADIN:
Q     President torture president torture. Sorry, we are almost done. We are almost done.
MR. SMITH: We've got to stop at 3 o'clock.
You know none of this is ever going to get into evidence.
Why are we doing this?
Okay.
MR. LADIN: We can have this conversation later.
MR. SMITH: Let's have it right now, so I can get some time with the witness.
MR. LADIN: Okay.
Would you allow me to finish?
I guarantee it will be quicker.
MR. SMITH: Well, I don't want to open my mouth, but it is quarter after 2.
The witness wants to leave at 3 o'clock to go see his sick wife, and we are asking about his views about President Trump.
What the hell are we doing?
MR. LADIN: Well, if you will allow me to finish, we will find out.
MR. BENNETT: All right.
Let's go.
BY MR. LADIN:
Q     So, President Trump has said that he believes torture works.
A     I read that, yes.
Q     Have you ever spoken with President Trump about torture?
A     I have not.
Q     Okay. Do you think it is dangerous when the President of the United States says that torture works?
MR. BENNETT: I object to that.
And I'm going to instruct him not to answer that.
MR. LADIN: Based on what?
MR. BENNETT: He is in enough difficulty without what is the point of it?
I mean
MR. LADIN: Okay.
MR. BENNETT: Go ahead, if you want to answer it, if you can.
I mean
THE WITNESS: I'm sorry, repeat the question.
MR. BENNETT: Do you think it is dangerous that the President Trump
MR. LADIN: Has endorsed the use of torture?
MR. SMITH: Objection.
THE WITNESS: Do I answer?
MR. BENNETT: Do you want to answer?
THE WITNESS: I wouldn't call it dangerous.
I would say foolish.
BY MR. LADIN:
Q     Why is it foolish?
A     Well, I just, in my view, it doesn't, it doesn't, it doesn't do justice to a complicated issue.
MR. LADIN: Okay.
All right.
I think, I think I am done.
MR. BENNETT: Your turn.
You have 43 minutes.
MR. SMITH: Who is counting?
MR. BENNETT: Me.
MR. SMITH: Okay.
MR. BENNETT: I don't have that authority, but I do appreciate it if you
MR. SMITH: I will move quickly.
EXAMINATION BY SMITH:
Q     Mr. Rizzo, good afternoon. My name is Jim Smith, and I have some questions that I want to ask you. The first thing I want to do is place before you what we are going to mark as Exhibit 45A. And for the record I will identify 45A as the declaration of John Rizzo. That was executed by Mr. Rizzo on January 23, 2017, but containing all of the exhibits.
(Exhibit Number 45A marked for identification.)
BY MR. SMITH:
Q     Do you have that document before you, sir?
A     I think so.
Q     And is that the declaration that you executed on January 23, 2017?
A     Yes.
Q     Okay. And, the exhibits that are attached, are they the exhibits that are referenced in your declaration and now attached thereto?
A     Yes.
Q     Okay. And, I think you testified previously that you, along with the assistance of your counsel, prepared this declaration?
A     That's correct.
Q     Have you ever met me before today?
A     No.
Q     Did you even know I existed before today?
A     No.
Q     Had you talked to any of the lawyers for Drs. Jessen and Mitchell before today
A     No.
Q     about the particulars of the lawsuit? Or about anything for that matter?
A     I never talked to you folks about anything.
Q     Okay. During the lunch hour
A     I'm sorry, let me amend that. I've known Mr. Schuelke for a number of years. I have talked to him in the past, but
Q     But nothing about this lawsuit?
A     Right.
Q     Okay. During the lunch hour, we reached a stipulation. We, being counsel for the plaintiffs, Mr. Lustberg, on behalf of all plaintiffs counsel as I appreciate it, and myself, and we want to set the stipulation on the record. So, here it is. The parties stipulate that if the court permits this deposition transcript to be used at the trial, which is presently scheduled to proceed in June of this year, then we further stipulate that this declaration that you executed and the exhibits thereto are admissible as evidence, with the exception of Paragraphs 22, 31, the last sentence of Paragraph 40, Paragraph 48, Paragraph 69, Paragraph 70, Paragraph 77, and Paragraph 78.
MR. SMITH: Now, let me stop and ask Mr. Lustberg, did I accurately set forth the stipulation?
MR. LUSTBERG: Yes, you did.
BY MR. SMITH:
Q     Okay. So, let me go to the paragraphs for which we do not have a stipulation. I'm going to ask you to turn to Exhibit Number 45, Paragraph 22. 45A has the exhibits. 45 doesn't have the exhibits. You can go to the one without the exhibits or the one with the exhibits. Pick any one that is easily before you.
A     Okay. And you want me to look at what?
Q     Page 24, Paragraph 22.
A     Yes, my declaration. Right, I see it.
Q     Do you see where it says in your declaration, "To my knowledge Drs. Mitchell and Jessen had no role in the OLC's assessment of these techniques' legality and had no contact with OLC personnel as they conducted their assessment." Do you see that?
A     I do.
Q     Now, sir, is it true that Drs. Mitchell and Jessen had no role in determining the legality of the techniques?
A     That is true.
Q     Okay. And you know that they are not lawyers, right?
A     I know that, yes.
Q     And is it fair to say that when your legal counsel was sought, the people that were seeking legal counsel were Mr. Rodriguez and members from the office of the CIA?
A     Yes, members from the CIA, sure. CIA people.
Q     Okay. And then the other part of Paragraph 22 deals with contact. And is it true that Drs. Mitchell and Jessen had no contact with OLC personnel as they conducted their assessment?
A     To my knowledge, they did not.
Q     Okay. So Drs. Jessen and Mitchell weren't lobbying for the OLC to reach a particular conclusion, right?
A     No, no.
Q     Okay. Let's go to Paragraph 31. That is on the next actually two pages later. Paragraph 31 looks to me to be almost identical to the language in Paragraph 22. Would you agree with that?
A     Yes.
Q     And I take it your testimony about the factual basis for Paragraph 31 wouldn't change if I asked you any questions about that.
A     That's correct, that's correct.
Q     So, let's go on to the last sentence of Paragraph 40, which is on the next page. Now, do you remember that you were asked questions during your examination by counsel for the ACLU about possible psychological effects that result or could result from the use of EITs?
A     I remember that, yes.
Q     Okay. Now, in this Paragraph 40, you state in that last sentence, "The JPRA concluded no long-term psychological effects resulted from the use of the EITs." Do you see that?
A     Yes.
Q     Tell us what the JPRA is?
A     It is, it is a DOD entity, and they say in that paragraph, it is called the Joint Personnel Recovery Agency. And, my understanding I was not familiar with it before 9/11, but my understanding became that they were responsible for overseeing all of the SERE programs, training, things of that nature.
Q     And, what was the source of your knowledge that the JPRA concluded no long-term psychological effects resulted from the use of the EITs
A     My recollection is
Q     as it appears in your declaration?
A     My recollection is I learned, that I got some piece of paper, I can't honestly recall whether it was the actual JPRA written conclusion, or if it was the DOD General Counsel, a man named Jim Haynes, who I dealt with regularly during these days, whether he conveyed that conclusion to me.
Q     And Drs. Mitchell and Jessen were not part of the JPRA, were they?
A     Not to my knowledge, no.
Q     Let me show you what we are going to mark as the next exhibit in the case.
MR. SMITH: For the record, I will identify it as bearing U.S. government Bates label last four digits 1913 and 1914.
And we will mark this as Exhibit Number 59.
(Exhibit Number 59 marked for identification.)
BY MR. SMITH:
Q     Do you have 59 before you, sir?
A     This is 59.
Q     It is the document
A     Yes, I do.
Q     You have it in your hands?
A     Yes.
Q     Okay. I want to direct your attention. Well, let's identify it for the record first. This appears to be a cable of some sort, does it not?
A     It does.
Q     Okay. And I take it during the period of time that we are talking about here, when you were acting as Counsel for the CIA, you had occasion to see cables like this?
A     Yes.
Q     I want to direct your attention to the third paragraph of the cable. Do you see it there?
A     Yes.
Q     And I want to go about five lines down, the sentence that starts with, "In an effort to help." Do you see that?
A     Yes.
Q     And let me read this into the record. It states, "In an effort to help HQS obtain the needed approvals so that base can begin the next phase of the interrogation process, request," and then there is a blank, "SERE, that is S-E-R-E, psychologist assistance." Do you see that?
A     Yes.
Q     Okay.
MR. SMITH: And, counsel, can we stipulate that to the extent that the government redacted information about who the SERE psychologists were, when it was Doctors Jessen or Mitchell, the government would type in their name.
Can we agree with that?
MR. LADIN: I'm not sure.
MR. SMITH: Let me ask the government.
MR. WARDEN: On the record, I don't know what this, I don't know what is underneath the redaction.
MR. SMITH: I'm not asking that.
Here is what I'm asking him, so listen carefully.
In the instances where the identity of a SERE psychologist was called out in the document, the names were redacted.
However, in the instances when the SERE psychologist was either Dr. Mitchell or Dr. Jessen, the government would type those names in, in the information that was produced to us in discovery.
Do you agree with that.
MR. WARDEN: Yes, if their names were as stated in the document.
MR. SMITH: Correct.
MR. WARDEN: Yes.
MR. SMITH: So, is it fair to assume then that the name that was redacted of the SERE psychologist was a name other than Dr. Mitchell or Dr. Jessen?
MR. LADIN: I'm going to object because it is not at all clear that this is the name that is being redacted.
It could be any other kind of identifier.
MR. WARDEN: If what was underneath those two redactions were either Dr. Mitchell's name, code name, or another identifier, we would have substituted it.
MR. SMITH: Okay.
MR. WARDEN: If that is not there then what is under the black is something other than those terms.
MR. SMITH: Okay.
And I heard what you said, counsel.
And I don't know what was redacted.
I'm left to my own devices with these documents from the government.
BY MR. SMITH:
Q     But, do you recall looking at this document, if there were other opinions you got from other SERE psychologists as suggested by Exhibit Number 59?
A     Yes, I don't specifically recall this document, but not to say I didn't see it. I just don't remember at this point in time.
Q     So, even though you don't recall the document, what about the subject matter that I'm asking you about? Do you recall if there were SERE psychologists, other than Mitchell and Jessen, who provided opinions to the CIA relating to these enhanced interrogation techniques?
A     No, to the best of my recollection the only SERE psychologists I knew that were providing advice were Drs. Mitchell and Jessen.
Q     Okay. All right. Let's move on then. And to the extent that JPRA came to the conclusion that there were no long-term psychological effects resulting from the use of EITs, you don't know what the source of that agency's information was?
A     No. Not specifically.
Q     Okay. What about generally?
A     You know, I did probably know at some point. I just can't remember now.
Q     Okay. Turn, if you would, to Paragraph 48, which appears on the top of Page 9 of your declaration marked as Exhibit Number 45. Tell me when you are there.
A     I am there.
Q     Paragraph 48 is one sentence. It states, "It is my understanding that all EITs were applied to Zubaydah consistent with the August 1, 2002, Bybee memo." Do you see that?
A     I do.
Q     What is the source of your information for Paragraph Number 48?
A     Well, a couple of things. We had sent one of our attorneys in the Office of General Counsel to review the videotapes of the interrogation of Zubaydah, many hours of videotapes. These were videotapes that were subsequently destroyed. And he returned to say, as I am going through them carefully, that none of the EITs all of the EITs applied to Zubaydah were consistent with the Bybee memo. In other words, there were no unauthorized techniques.
Q     And just so we are clear, the Bybee memo was the memo that served as the legal authority to proceed with 11 of the 12 techniques; is that correct?
A     Correct.
Q     Okay. And mock burials was the one that was removed?
A     That's correct.
Q     Okay. Now I want to ask you about high value detainees. You mentioned high value detainees in your testimony. Do you recall that?
A     Yes.
Q     And do you know, there were other types of detainees, right?
A     Right.
Q     There were medium value detainees, and low value detainees, right?
A     Yes.
Q     Did you, in your capacity as Counsel for the CIA, give advice to members in the field about low value detainees and medium value detainees?
A     I'm sure we did. I don't recall that I did myself, but I'm sure lawyers, my lawyers at CTC did.
Q     Okay. Now I want to focus in on Mitchell and Jessen. Were Mitchell and Jessen involved with high value detainees?
A     Yes.
Q     Do you know if they had any role other than with respect to high value detainees?
A     No. My understanding was that they were brought on and they were, and they were used exclusively on high value detainees.
Q     Okay. Now, you got this document which was previously marked in the case as Exhibit Number 17. Pull it out for a second if you would, please.
A     17.
Q     17.
A     Jim, if you could describe it, I could find it.
Q     It is the 12 techniques that is in the form of a cable, but it is a cut and paste of a memo that was put together by Dr. Mitchell.
MR. HANNER: It is Exhibit C to the declaration as well.
BY MR. SMITH:
Q     It was marked during your testimony today as Exhibit 17, so I want to be consistent.
A     Okay. All right.
Q     Do you have it there?
A     I've used the one as my exhibit. It starts
Q     Okay.
A     unclassified for public release.
Q     Okay. Sometime in the summer of 2002, you were presented with this document, were you not?
A     Yes.
Q     And can you fix an approximate date when you were presented with this document?
A     I, it, you know, it is hard to tell with the redactions whether I was presented with it.
Q     Just give me your best estimate.
A     I was probably presented with it either right prior or right after August 1st. I see there is a reference to a July 8, 2002, meeting. So, it was some time after that. But it was close. It was around, it was near, very near, I suspect, the time of the Bybee memo.
Q     So, Mr. Rizzo, Mr. Bennett is counting my minutes, and I see that he has signaled to me that I have 27 minutes left.
A     If you need to go over a little bit
Q     You don't want to make that concession.
MR. BENNETT: You say that to a lawyer, you are out of your mind.
BY MR. SMITH:
Q     Mr. Rizzo, stay with me on this.
A     Okay.
Q     You were presented this memo in connection with Abu Zubaydah, correct?
A     Yes.
Q     And Abu Zubaydah was what was his category of detainee?
A     He was a high value detainee.
Q     And these, these 12 techniques were related to what kind of detainees?
A     High value detainees.
Q     And initially when you first looked at them and you were asked to opine on the legality of them, it was solely for Abu Zubaydah; isn't that right?
A     That's correct.
Q     And then I think you testified that you went to the Justice Department because you wanted to get an opinion from the Justice Department to protect people within the CIA about the legality, right?
A     Yes, yes.
Q     And you ultimately got that Bybee memo, right?
A     I did.
Q     And then thereafter, the, these techniques were expanded to be used on other high value detainees; is that correct?
A     Correct.
Q     During the period of time that you were at the CIA and acting as counsel, were these techniques that are set forth in Exhibit Number 17, ever expanded to be used on any detainees other than high value detainees?
A     No.
Q     Okay.
A     I should note that Number 12 was a mock burial. That
Q     Right. And that was eliminated. And I think that was on the record. And I want to go to, I want to go to Exhibit Number 38.
A     Okay.
Q     And I want to talk about process. Okay.
MR. BENNETT: What is 38?
MR. SMITH: 38 is, lays out the road map for, if we are going to use enhanced interrogation techniques and other standard techniques, this is what the CIA wants everybody to do after.
BY MR. SMITH:
Q     Do you have that exhibit before you?
A     I'm looking. Is this the January '03?
MR. HANNER: Yes, it is Exhibit N to your declaration.
MR. BENNETT: N.
THE WITNESS: Okay, I have that.
BY MR. SMITH:
Q     And you are familiar with this document.
A     Yes.
Q     And the reason you are familiar with it in your capacity as Counsel for the CIA during the time in question?
A     Yes.
Q     Mr. Rizzo, I want to just make a couple of points here. First I want to talk about is architect. You, I think in your book said you are the legal architect of the enhanced interrogation program?
A     I think, yes, I think that is yes.
Q     Can you tell me what you meant by that?
A     Well, I was the, yeah, I was the, certainly the primary lawyer at CIA in the position of leadership, frankly, the only lawyer who was involved in the program from its inception to its conclusion, seven years later.
Q     So, let me ask you. When you went to the Justice Department to get their view on the legality of these enhanced interrogation techniques, if they would have said no, they are illegal, what would you have done?
A     I would have said thank you very much, and that would have been the end of that. We wouldn't be sitting here.
Q     Who was the architect then, them or you?
A     Well, I think I referred to myself as the CIA's legal architect. Obviously the Justice Department is the ultimate legal arbiter.
Q     Okay. Now I want to talk about your understanding of process. By January of 2003, obviously there were procedures that were now in writing as embodiments in Exhibit 38; is that right?
A     Correct.
Q     Were these procedures actually being followed prior to the preparation of Exhibit Number 38?
A     Yes.
Q     Okay.
A     Yes.
Q     But someone made the decision to memorialize them in a document?
A     Yes, that's correct.
Q     Who made that decision?
A     I believe actually it was made by January 2003, we did have a new General Counsel, Mr. Moller.
Q     Okay.
A     I believe, to give him credit, he was the one, he had arrived shortly before that in November. He said we should get all of this, get the existing procedures down in writing.
Q     I see. So, it wasn't Dr. Mitchell who made this decision?
A     No.
Q     I see. So, let's go to the second page of Exhibit Number 38. Do you see where it talks about permissible interrogation techniques?
A     Right.
Q     And it says, "Unless otherwise approved by headquarters, CIA officer and other personnel acting on behalf of CIA may use only permissible interrogation techniques." Do you see that?
A     Yes.
Q     Was Dr. Mitchell part of this approval process?
A     The approval process for the
Q     Where it says, unless otherwise approved by headquarters, CIA officers, or other personnel acting on behalf of the CIA well actually I misread that. Let me start again. "Unless otherwise approved by headquarters, CIA officers and other personnel acting on behalf of the CIA may use only permissible interrogation techniques." Do you see that?
A     I do.
Q     So, headquarters had to approve the techniques, right?
A     That's correct.
Q     Okay. Dr. Mitchell didn't approve the techniques, right?
A     No.
Q     Dr. Jessen didn't approve the techniques, right?
A     No.
Q     Okay. And then if you read on, it says what the permissible techniques are. Do you see that?
A     I see that.
Q     Now, who decided what the standard techniques were that were permissible within the meaning of this memo?
A     Well, CTC did.
Q     Headquarters did, right?
A     Headquarters, CTC.
Q     Correct. Not Dr. Mitchell, right?
A     No, CTC.
Q     Right. When you say CTC, you mean that people that were responsible for running the day-to-day affairs of the Counter Terrorism Center, right?
A     Staff officers in the Counter Terrorism Center.
Q     And so the record is crystal clear, not Dr. Mitchell, right?
A     Correct.
Q     And not Dr. Jessen?
A     That's correct.
Q     Okay. And then if you look at the standard techniques, there are a series of them called out. And I will mention some. Isolation, sleep deprivation, not to exceed 72 hours, reduced caloric intake, so long as the amount is calculated to maintain the general health of the detainee, deprivation of reading material, use of loud music or white noise. Let me stop right there. You can read them as well as I can, right?
A     Right.
Q     Who determined that these techniques were the techniques that would be used as standard techniques? Is this headquarters again?
A     It was headquarters. It wasn't me. But it was headquarters, yes.
Q     And who from headquarters can you tell me was involved in this decision-making process?
A     Well again, it would be CTC officers and management.
Q     Not Dr. Mitchell, correct?
A     Not to my knowledge.
Q     And not Dr. Jessen, right?
A     That's correct.
Q     Okay. Now, reading on, it makes reference to enhanced techniques. Do you see that?
A     I do.
Q     And then you will see that there are a series of enhanced techniques that are identified in here, right?
A     Correct.
Q     And it says, just so the record is clear, "Enhanced techniques are techniques that do incorporate physical or psychological pressure beyond standard techniques. The use of each specific enhanced technique must be approved by headquarters in advance and may be employed only by approved interrogators for use with the specific detainee with appropriate medical and psychological participation in the process." Do you see that?
A     I do.
Q     Who put this process in place?
A     Again, it would be CTC officers and management.
Q     Correct. Not Dr. Jessen, right?
A     No.
Q     Who would decide which medical doctor would participate in the enhanced interrogations? Headquarters?
A     Headquarters, yes.
Q     And would headquarters also decide which psychological doctor, whether it be a psychiatrist or a psychologist, would participate?
A     That is correct.
Q     I want to ask you further about so, is it fair to say that every decision about when and how and to whom these techniques were going to be utilized was made by headquarters?
A     That is fair to say, yes.
Q     Okay. Now, in addition to that, if you read through this, because I only have about 18 more minutes, it talks about process for who can stop the enhanced interrogation techniques. Do you see it in there?
A     Yes, if you could direct me.
Q     Sure. Go to Paragraph 2.
A     Okay.
Q     And just read it to yourself. Have you read it?
A     Yes.
Q     And again this procedure was determined by headquarters, right?
A     That's correct.
Q     And if you look at interrogation personnel in Paragraph 3, all done by headquarters. Right?
A     That's correct.
Q     All controlled by headquarters, correct?
A     Correct.
Q     And then if you look at finally Item Number 4 and 5, 5 dealing with recordkeeping, and 4 dealing with approvals required, all again directed and orchestrated by headquarters, right?
A     Correct.
Q     So, in fairness, was it your understanding that if enhanced interrogation techniques were to be used, one, they would be done only on a high value detainee?
A     Correct.
Q     Two, they would be done only after headquarters decided which of the 11 techniques were to be used, on which day, for how many times; is that correct?
A     That's correct.
Q     And to the extent that the people out in the field, even if they wanted to stop doing the enhanced interrogation techniques, if headquarters directed that they continue, headquarters expected that direction to be followed?
A     That's correct.
Q     And it was always that way during the period of time 2002, whenever this started, right up through the end of 2004. Correct?
A     To the end of 2004, yes.
Q     Okay. In fairness
MR. BENNETT: You know
BY MR. SMITH:
Q     I will stop the in fairness.
MR. BENNETT: Yes.
BY MR. SMITH:
Q     It is true that Drs. Mitchell and Jessen weren't the architect of this program at all, weren't they?
A     No, it was CTC. It was an agency program, the CTC program.
Q     The agency directed every facet of it along the way; isn't that right?
A     Yes.
Q     Okay. And those 12 techniques that are embodied in the memo that Mitchell, that was cut and pasted for Mitchell marked as Exhibit Number 17, do you know how long those techniques have been around?
A     You mean at the agency? Or, or
Q     Do you know if waterboarding was used during World War II?
A     Apparently some forms of it were, yes.
Q     Okay. Do you know if these other techniques have been around for decades?
A     I understand that a number of them have been, yes.
Q     Okay. Do you know which ones weren't?
A     No. No.
Q     Okay. Go back to Exhibit Number 45. There is a couple of other paragraphs I just want to clean up.
A     What is 45?
Q     Yes.
MR. HANNER: It is the declaration.
MR. BENNETT: Of his declaration?
BY MR. SMITH:
Q     Yes, that is 45.
MR. SMITH: Thank you, Mr. Bennett.
I am working this clock hard, I want to report to you.
MR. BENNETT: I appreciate it very much.
BY MR. SMITH:
Q     Paragraph 69 appears on Page 12. Do you see where it says, "Gul Rahman ("Rahman") was not classified as an HVD." Do you see that?
A     Yes.
Q     By way of background, Mr. Rahman died while in captivity in a black cell, right?
A     At Cobalt, yes.
Q     Okay. And are aware that his estate is a plaintiff in this action?
A     I guess I know that, yes.
Q     Okay. And is it correct that after Rahman died, you became knowledgeable about the facts and circumstances relating to Rahman's captivity because of the death?
A     Yes.
Q     And in the course of learning about those facts and circumstances, is that when you learned that he was not a high value detainee?
A     Yes.
Q     Okay. And is that the basis for the factual allegation that appears in Paragraph 69?
A     Yes.
Q     And, would the same be true with respect to Paragraph 70 which states, "Rahman was not part of the EIT program"?
A     That's correct.
Q     Okay. You learned that as a result of the inquiry that was done by you and others resulting from Rahman's death?
A     Correct.
Q     And then finally, Paragraphs 77 and 78 make reference to a report that is entitled the Senate Select Committee on Intelligence's Study of the Central Intelligence Agency's Detention and Interrogation Program. Do you see that?
A     I do.
Q     And we refer to it as the SSCI report, S-S-C-I. Can you call it that, too, for the purposes of this deposition?
A     I will call it that.
Q     Okay. Do you see in Paragraph 77 you say, "The SSCI report is an errant, inaccurate, one-sided, unremitting, wholesale assault on the CIA's EIT program." Do you see that?
A     I do.
Q     Can you tell us why you said that?
A     Well, in terms of one-sided, it was an investigation that took place over four years. Apparently reviewed millions of documents, but was conducted solely by the one side, one partisan side of the committee. And during, at least for me, the biggest evidence of the one sidedness is that none of us who had been involved in the program, including me, not once during those four years was ever asked was ever interviewed by any of the SSCI investigators.
Q     And did you ever come to understand why none of you were interviewed?
A     Well, I had my, my my conclusion was that they started off with their conclusions already in their head. That the program was worthless, immoral. And they, there was really no and the rest of the time they were building towards solidifying and supporting that forgone conclusion.
Q     I see. And are there instances in the report that you could cite where the information is, as you describe it, errant, inaccurate, one-sided?
A     Yes.
Q     Okay. And, is it fair to say strike that. Is it true that Paragraph 78 through 83 cite some of the instances in the SSCI report where you believe that that report is inaccurate, errant, et cetera?
A     That's correct, correct.
Q     Okay. Let's change subject matters. You were asked questions about learned helplessness. Do you remember that?
A     Yes.
Q     Turn, if you would, to Paragraph 18 of Exhibit Number 46.
A     46 is oh, here it is. I got it.
Q     Yes, it is the same document I'm sorry, I said 46. I meant 45. Forgive me.
A     Oh, my declaration. Okay. All right. I'm looking at what paragraph?
Q     Paragraph 18, which appears on Page 4. In that paragraph you talk about learned helplessness. Do you see that?
A     Right. Right.
Q     And if I'm reading it correctly, you attribute that theory to someone other than Drs. Mitchell and Jessen?
A     That's right.
Q     Okay. Tell me what you meant by that.
A     Well, I mean, first of all, as I let me look. This is a meeting at the White House. Yes. This is a meeting at the White House. Yes, well, I wasn't first of all, Dr. Mitchell and Dr. Jessen were not with me at that meeting at the White House. It was just strictly CTC attorneys. And, my recollection is that they, as I say here, outlined the theory of learned helplessness, and named a, named a psychologist whose name escapes me, but which, who I am certain is neither Dr. Mitchell nor Dr. Jessen.
Q     Okay. And do you remember what you were told about that theory by that doctor whose name you can't remember?
A     Well, as I said earlier, my layman's understanding is that when a detainee reaches the point of self-recognition that further resistance to questioning, further prevarication is useless, and that therefore he becomes compliant.
Q     Turn if you would to what has been marked previously as Exhibit 44.
A     44.
Q     Yes.
A     Again, that is what? So I can
Q     It is a, it is a document that Mr. Warden redacted so much of, that it is impossible for me to say what it is. Maybe he could be kind enough to tell us.
MR. HANNER: Here you go.
THE WITNESS: Okay, I've got it.
BY MR. SMITH:
Q     Now, you were asked a number of questions about this document. Do you remember?
A     I do, yes.
Q     Did you ever see this document before today?
A     I have no idea whether I saw it or not. I mean, it is virtually unrecognizable.
Q     I understand. Well, it is good to know your lawyers are out there protecting your information. But, looking at it in its present form, is it correct to say that you cannot identify this document?
A     Yes, that's correct.
Q     Okay. And you don't know the author of the document?
A     No.
Q     You don't know the reason the document was created?
A     No.
Q     You have no idea if the information that appears in the document is accurate?
A     No. Without any
Q     You are not saying it is inaccurate, but you can't say that it is?
A     No. That's correct.
Q     Okay. You have no idea of the circumstances under which this document was created?
A     Correct.
Q     And if you turn to exhibit, sorry, the same exhibit but Bates page U.S. 1581, which is three or four from the back. You were asked questions about the individual that is identified there. Do you remember?
A     Yes.
Q     And, reference is made in this document to this individual undergoing EITs, right?
A     Right.
Q     And you don't know if that happened, correct?
A     Right. Yes.
Q     If it did, you don't know why, correct?
A     Correct.
Q     Okay. And the same would be true if you turned to Bates page 1567.
A     Yes, yes. The same.
Q     Okay. Let me ask you this because you may have alluded to this earlier in your testimony. During the course of your participation in these black sites, and these various forms of detainees, did you learn from time to time that there were instances where people at black sites holding low or medium value detainees were using enhanced interrogation techniques without authorization and without following the procedure that had been laid out by the CIA?
A     Yes. That came to my attention. That happened from time to time.
Q     Okay. And were those, the people who did that, they were the people responsible for running the black sites?
A     Well, running the prisons that they, the Cobalt and, as I said earlier, my vernacular black sites were the places where the EITs took place.
Q     Okay. So these were prisons where medium value and low value detainees were kept?
A     Correct.
Q     And there were instances where EITs were applied to these detainees, but in direct violation of CIA orders?
A     Yes, certainly unauthorized techniques, yes.
Q     And isn't it true that Dr. Mitchell and Dr. Jessen had absolutely nothing to do with that?
A     Not as far as I know.
Q     Okay. Did you ever come across any evidence that they even knew about these actions being done, these unauthorized actions?
A     I don't recall ever hearing that, no.
Q     Okay. Turn, if you would, to what was previously marked as Exhibit Number 35.
MR. SMITH: There is three minutes left on the disk, Mr. Rizzo.
MR. BENNETT: Well, just remember, Abraham Lincoln's Gettysburg address was three minutes.
So, if he can do it, you can.
MR. SMITH: Thank you for reminding me.
THE WITNESS: What is 35 again?
BY MR. SMITH:
Q     Exhibit 35 is a memo about the meeting that you had with Secretary Rice.
A     Oh, that, yes, yes.
Q     Here is what I want to ask you about. Do you remember that meeting?
A     Oh yes, vividly.
Q     Do you remember if Dr. Mitchell at that meeting said to Secretary Rice that he didn't believe in nudity?
A     That he, Dr. Mitchell, didn't believe in it?
Q     He did not believe in it, wanted it to stop?
A     I don't remember that, no.
Q     Okay. Just so the record is clear, can you sit here today and say if he were to testify to that under oath, can you say that you don't think that is true?
A     No, I just don't remember it, one way or the other.
Q     Okay.
MR. BENNETT: Any kind of nudity at all, Doctor?
MR. SMITH: Not by detainees in connection to the action brought by the ACLU.
BY MR. SMITH:
Q     Do you know, Mr. Rizzo, if the guards determined how long the prisoners would remain awake at the prison?
A     That the guards would determine
Q     It was the guards who made that determination?
A     I don't believe they did. No.
Q     Okay. All right, let's go off the record for a second.
THE VIDEOGRAPHER: 2:56 a.m., off the record.
(Recess taken -- 2:56 p.m.)
(After recess -- 3:00 p.m.)
THE VIDEOGRAPHER: We are now on the record, the beginning of Videotape Number 3 of the deposition of John Rizzo.
The time now is 3:00 p.m.
BY MR. SMITH:
Q     Mr. Rizzo, just a couple more areas, and we will have you out of here. You testified during your examination with counsel for the ACLU that there were refinements made to the program. Do you remember that?
A     Yes.
Q     And the program we are talking about the is enhanced interrogation techniques that were used for high value detainees?
A     Correct.
Q     Okay. Now, who participated in the decision-making process with respect to those changes?
A     Well, I participated.
Q     Yes.
A     And, I, I actually took the lead for the agency in that effort, at the direction of the CIA Director at the time, Michael Hayden. And I had the discussions with appropriate CTC personnel, I remember the Chief of the CTC, about, you know, what kind of techniques do they continue to deem essential. Things of that nature.
Q     Okay. And, how many times did you engage in that effort? Was it a periodic review?
A     Well, it was no, it was intense. I mean it was over a, I would say a six-month period, where this was all being reviewed from top to bottom.
Q     And is it correct to say that neither Dr. Mitchell nor Dr. Jessen were a part of the decision-making process about the refinements that were going to be made?
A     No, that is correct. I don't recall actually talking to them about this.
Q     You didn't even confer with them?
A     I don't recall. I do remember talking to CTC people, yes.
Q     Sure. That would be Mr. Rodriguez and his staff?
A     And the, and the new head of CTC at the time.
Q     Okay. And then, finally, you said that there was a meeting that you had with Mr. Chertoff. Do you remember that?
A     Yes.
Q     And in the course of that meeting, you had raised the subject of advanced immunity, right?
A     Right.
Q     So, you get a declination from the government before conduct occurs as insulation, if you will, for the government being able to charge at a later date.
A     Yes.
Q     How many times did you have that discussion with him?
A     Once.
Q     Did you ever have the subject matter of that discussion with anyone else from the Department of Justice?
A     No. I mean, Chertoff shot it down quite conclusively, so I just let it go.
Q     So, it came up one time, and it never came up again?
A     Yes, and it was my idea only.
Q     It was your idea only. Okay.
MR. SMITH: We have no further questions of the witness thank you Mr. Rizzo.
MR. LADIN: Can I just ask one final question?
MR. BENNETT: Oh, yes, sure.
I didn't know I was a judge, but go ahead.
MR. LADIN: In a way you are.
EXAMINATION
BY MR. LADIN:
Q     So, you testified earlier that you did not personally speak with the defendants' lawyers crafting your declaration; is that right?
A     That's correct.
Q     But your declaration uses as exhibits documents that were produced as part of this litigation; is that right?
A     Well, they were produced they were given to me by my counsel. I assume they came out of the litigation.
Q     And do you have any knowledge of whether Dr. Mitchell and Dr. Jessen's lawyers were part of the process of crafting your declaration, even if you didn't speak with them personally?
A     No. I mean, I relied on the guidance from my attorneys.
Q     Okay. So you don't know whether they were consulted?
A     No, I don't.
MR. LADIN: Okay.
That is all.
MR. BENNETT: I very much appreciate.
THE VIDEOGRAPHER: This concludes the video deposition of John Rizzo.
The time now is 3:04 p.m.
(Whereupon, signature having been waived, the deposition concluded at 3:04 p.m.)