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.
Bob Bennett: My name is Bob Bennett. I represent the witness, John Rizzo.
Dror Ladin: My name is Dror Ladin. I represent the plaintiffs.
Avram Frey: Avram Frey, with plaintiffs.
Lawrence Lustberg: Lawrence Lustberg on behalf of plaintiffs.
Hina Shamsi: Hina Shamsi, on behalf of the plaintiffs.
Steven Watt: Steven Watt on behalf of the plaintiffs.
Brooks Hanner: Brooks Hanner, on behalf of Mr. Rizzo.
David Unruh: David Unruh, on behalf of Mr. Rizzo.
Ann Querns: Ann Querns, on behalf of the defendants.
Jim Smith: Jim Smith on behalf of the defendants.
Hank Schuelke: Hank Schuelke on behalf of the defendants.
Elmer Mitchell: James Mitchell, I am the defendant.
Andrew 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.)
Andrew 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.
Jim 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.
Andrew Warden: We appreciate that, Mr. Smith. Thank you.
Jim Smith: Great.
Dror Ladin: All right. Good morning, Mr. Rizzo.
John Rizzo: Good morning.
Dror Ladin: 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?
John Rizzo: No, not at deposition, no.
Dror Ladin: 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?
John Rizzo: Yes.
Dror Ladin: 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?
John Rizzo: Yes.
Dror Ladin: 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?
John Rizzo: That is fair.
Dror Ladin: 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?
John Rizzo: No.
Dror Ladin: 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?
John Rizzo: No.
Dror Ladin: All right. So, you had a deposition scheduled in January in this case, correct?
John Rizzo: I don't remember.
Bob Bennett: You've answered it.
Dror Ladin: All right. Do you remember having a deposition scheduled in this case at some point before today?
John Rizzo: Oh, before today.
Dror Ladin: Yes.
John Rizzo: It was scheduled two weeks ago.
Dror Ladin: And before that time, were you asked to provide a declaration for the defendants in this case?
John Rizzo: Oh, yes, yes.
Dror Ladin: How did that declaration come about?
John Rizzo: 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.
Dror Ladin: And was there some offer that you would get anything in return for this declaration?
John Rizzo: No. No. Not as such, no.
Dror Ladin: Did you understand that if you gave the declaration you might not need to be deposed?
John Rizzo: Yes.
Dror Ladin: And did you read every paragraph of the declaration?
John Rizzo: Yes.
Dror Ladin: Is every paragraph in that declaration truthful?
John Rizzo: Yes.
Dror Ladin: Did you omit anything from the declaration at the request of the defendants?
John Rizzo: Not that I recall, no.
Dror Ladin: Okay. So, you were an attorney at the CIA for how many years?
John Rizzo: Thirty-four.
Dror Ladin: Thirty-four years. And at that time did you maintain a law license?
John Rizzo: Yes.
Dror Ladin: Do you have one now?
John Rizzo: Yes.
Dror Ladin: Did you ever practice criminal law?
John Rizzo: No.
Dror Ladin: 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?
John Rizzo: Before 2002, yes.
Dror Ladin: Had you ever studied the Geneva Convention prior to 2002?
John Rizzo: Not really, no.
Dror Ladin: That is not really something that was looked at a lot at the CIA at the time, right?
John Rizzo: No, no.
Dror Ladin: The CIA didn't really deal with captivity or the law that was associated with it before 2002?
Bob Bennett: Well, excuse me. You say the CIA. That is a big organization. So, could you be more specific?
Dror Ladin: Sure. In your experience in the was it the Office of General Counsel?
John Rizzo: For my career?
Dror Ladin: Yes.
John Rizzo: 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.
Dror Ladin: And, in that office, to the best of your knowledge, during your time there, no one dealt, prior to 2002, with questions of captivity?
John Rizzo: No. Certainly not in my time there.
Dror Ladin: What about any training in psychology? Did you ever study psychology?
John Rizzo: No.
Dror Ladin: Okay. And you've never studied posttraumatic stress disorder?
John Rizzo: No.
Dror Ladin: So, how did you come to know that the CIA was considering the use of an enhanced interrogation program?
John Rizzo: 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.
Dror Ladin: And when you say some people, was that José Rodriguez and James Mitchell?
John Rizzo: 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.
Dror Ladin: Did there come a time when you did meet with José Rodriguez and Jim Mitchell about the EITs?
John Rizzo: Yes, there came a time. Yes.
Dror Ladin: Do you remember roughly when that was?
John Rizzo: 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.
Dror Ladin: Had the people in CTC informed you of the origin of the techniques they were considering?
John Rizzo: 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
Dror Ladin: And what did you understand, or what do you now understand SERE training to be?
John Rizzo: Well, it is survival
Dror Ladin: Yes, we don't need the acronym.
John Rizzo: But, it is training that special forces, Navy officers take to prepare them for possible capture by terrorists or other extra-national organizations.
Dror Ladin: And, what did you understand at the time about the use of SERE techniques in training?
John Rizzo: Well, that they had been a staple of these training programs for some period of time.
Dror Ladin: And did you understand that the techniques that you were considering were identical to the techniques that were used in SERE training?
John Rizzo: No, my recollection is that I was told that these were based on the SERE training techniques, but there was some variation.
Dror Ladin: And, when did you first meet Dr. Mitchell?
John Rizzo: 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.
Dror Ladin: So, you are saying after the techniques had already been used?
John Rizzo: Uh-huh.
Dror Ladin: So, you don't
John Rizzo: Yes.
Dror Ladin: you don't recall a meeting with George Tenet and José Rodriguez, in which James Mitchell presented the techniques?
John Rizzo: No, I don't recall that.
Dror Ladin: Okay. Did you know that neither Mitchell nor Jessen had ever conducted an interrogation prior to the instigation of Abu Zubaydah?
John Rizzo: Did I know that?
Dror Ladin: At the time, yes.
John Rizzo: No.
Dror Ladin: Would it have made any difference to you?
John Rizzo: No. I mean, I wasn't in a position to judge their qualifications and experience. I was the legal advisor.
Dror Ladin: And, they were presented to you as experts on interrogation?
John Rizzo: 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.
Dror Ladin: All right. I'm going to show you a document that has previously been marked Exhibit 17. (Whereupon, previously marked Exhibit 17, first referral.)
John Rizzo: Okay.
Dror Ladin: Are these the enhanced interrogation techniques that were presented to you?
Jim Smith: Objection.
John Rizzo: Do I answer?
Bob Bennett: Yes, you can answer.
John Rizzo: They appear to be some of them. Not all of them.
Dror Ladin: So, which ones
John Rizzo: At least the part that isn't redacted.
Dror Ladin: So, this lists 12 techniques. We can just go through them, and you can tell me whether those are different than the techniques
John Rizzo: You know, how many pages is this? Because I've only got two, and it starts in the middle of a sentence.
Dror Ladin: That is certainly odd.
John Rizzo: Am I missing something?
Dror Ladin: Is that how that is not how my version looks? Well, here, why don't you use mine.
John Rizzo: Oh, I'm sorry. I'm sorry. My mistake no.
Bob Bennett: They just didn't copy the back page here.
John Rizzo: All right. Okay. Here we go.
Dror Ladin: 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?
Jim Smith: Objection.
Bob Bennett: Go ahead.
John Rizzo: Yes, they appear to be.
Dror Ladin: Okay. You said in your book that some of the techniques sounded sadistic and terrifying to you. Do you stand by that characterization?
John Rizzo: 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.
Dror Ladin: How would you describe them now?
John Rizzo: Very tough and very harsh, some of them.
Dror Ladin: Which ones are those?
John Rizzo: Which ones I think now are that, or which ones did I think at the time?
Dror Ladin: Why don't you tell me both.
John Rizzo: 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.
Jim Smith: Mr. Rizzo, could I ask if you could keep your voice up so we could hear you down here.
John Rizzo: Oh, I'm sorry.
Jim Smith: Thank you.
Dror Ladin: 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?
Jim Smith: Objection.
Bob Bennett: Go ahead.
John Rizzo: 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.
Dror Ladin: And what was your understanding in the ways the techniques differed from their use in training?
John Rizzo: Oh, I can't remember that. I can't recall.
Dror Ladin: So, you don't remember, you don't remember what you were told about how the techniques compared to their use in SERE training?
John Rizzo: No. Not specifically.
Dror Ladin: 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?
John Rizzo: Not that I recall, no.
Dror Ladin: 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?
John Rizzo: No.
Dror Ladin: Was that something that you were independently aware of?
John Rizzo: Was what, the false confessions?
Dror Ladin: That that SERE training was based on interrogation programs that had extracted false confessions from American prisoners of war?
John Rizzo: 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.
Dror Ladin: And was your understanding that someone in CTC, aside from Mitchell or Jessen, had experience in the SERE program?
John Rizzo: No, I don't recall that.
Dror Ladin: So, after the techniques were presented to you, did you have an opinion as to their legality?
John Rizzo: 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.
Dror Ladin: And what did you do to determine whether they were, in fact, legal?
John Rizzo: 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.
Dror Ladin: 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?
Bob 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.
Dror Ladin: Sure.
Bob Bennett: So, I would appreciate it if you could reword your objections
Dror Ladin: Sure.
Bob Bennett: your questions.
Dror Ladin: Have you heard of an isolation phase in Abu Zubaydah's interrogation?
John Rizzo: I have heard of an isolation phase, yes.
Dror Ladin: Do you know whether Abu Zubaydah was asked any questions during the isolation phase?
John Rizzo: Again, do I know?
Dror Ladin: Do you know now.
John Rizzo: Do I know now? Yes, I've come to learn that there was a period of time where he was not asked questions.
Dror Ladin: And at the time did you know that?
John Rizzo: At the very beginning that the techniques were being described to me, at that point in time?
Dror Ladin: At the time when you were seeking the Department of Justice's opinion on the techniques.
John Rizzo: No, I don't believe so.
Dror Ladin: Do you recall when you became aware of the fact that he wasn't being questioned during that period?
John Rizzo: I believe it was some months later. It was a while.
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: And do you remember any conclusion that they reached?
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: Yes.
Dror Ladin: 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?
John Rizzo: That is correct.
Dror Ladin: 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
Bob Bennett: Is that a question or a statement? You made a statement.
Dror Ladin: I did, you are right. Let me rephrase. 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. 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.) So, I'm going to ask you about Paragraphs 38 and 39, which are on Page 6 and 7 of your declaration.
John Rizzo: Okay.
Dror Ladin: 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.
Bob Bennett: Which paragraph are you?
John Rizzo: Uh-huh, correct.
Dror Ladin: That is Paragraph 39. 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?
John Rizzo: That's correct.
Dror Ladin: I would like to show you a document that has been previously marked Exhibit Number 18. (Whereupon, previously marked Exhibit 18, first referral.)
Bob Bennett: Which paragraph does that refer to? Do you know? Or is it outside the declaration?
Dror Ladin: Sorry, I didn't understand the question.
Bob Bennett: Well, is this an exhibit to his declaration?
Dror Ladin: No, this was not an exhibit to your declaration.
Bob Bennett: Okay, thank you. Thank you.
Dror Ladin: 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.
Bob Bennett: That is all right.
Dror Ladin: There is very similar text in this
John Rizzo: Let me read this, because I don't believe that I've seen this before.
Dror Ladin: Sure.
John Rizzo: Okay.
Dror Ladin: So, this appears to be a cable in which recommendations and responses to questions are being provided by IC SERE psychologists; is that right?
John Rizzo: It appears to be.
Dror Ladin: And, the IC SERE psychologists, those are Mitchell and Jessen, correct?
John Rizzo: Yes, I assume so.
Bob Bennett: Well, don't assume.
John Rizzo: Okay. I don't know.
Bob Bennett: He is entitled to full and complete answers, but not assumptions.
Dror Ladin: Do you know of any other independent contractor SERE psychologists who were involved in the Abu Zubaydah interrogation?
John Rizzo: Not that I recall.
Dror Ladin: 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?
Jim Smith: Objection.
John Rizzo: I would need to look at the OTS memo to compare.
Dror Ladin: 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?
John Rizzo: Yes, well, there yes, there was a iterative process back and forth, yes.
Dror Ladin: 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?
Jim Smith: Objection.
John Rizzo: I can't say, I'm just, again, reading this for the first time so I can't
Bob Bennett: You have answered the question.
John Rizzo: Okay.
Dror Ladin: 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?
John Rizzo: I'm sorry, you have to clarify. In the aspects of the iterative?
Dror Ladin: Sure. I believe you said there was an iterative process in which OLC would ask CIA for further information.
John Rizzo: Right.
Dror Ladin: Would that flow through your office?
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: 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.
Bob Bennett: Your hand.
John Rizzo: Okay.
Dror Ladin: And you've said you've not seen this cable before?
John Rizzo: 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.
Dror Ladin: 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.
Bob Bennett: Which paragraph are we talking about now?
Dror Ladin: Sure. So, take Paragraph 22 of your declaration on Page 4.
John Rizzo: Okay.
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: So, is what you mean that as far as you know Drs. Mitchell and Jessen didn't directly speak with OLC?
John Rizzo: As far as I know.
Dror Ladin: But you are not saying that they did not provide information that was considered by OLC?
John Rizzo: At this point in time, I can't remember what they provided and what they didn't.
Dror Ladin: Sure. Let's look at, I think this was Exhibit J to your declaration.
Bob Bennett: Here, let's go to J here.
Dror Ladin: Court Reporter, could you please mark this as 46. (Exhibit Number 46 marked for identification.)
Bob Bennett: Take that book. That is your declaration and your exhibits. We are talking about J.
Dror Ladin: And, what I'm going to ask you about is on the page marked Bates 1763.
John Rizzo: Okay.
Dror Ladin: 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.
John Rizzo: I'm sorry. Can you just tell me where on that page you are reading from?
Dror Ladin: Sure. It is in the middle. It is Paragraph 7. And it well, take your time.
John Rizzo: So, the question is?
Dror Ladin: Sure. So, it says, "The legal conclusion turns upon the following factors." And then it lists a series of factors, correct?
John Rizzo: Correct.
Dror Ladin: 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?
John Rizzo: Yes.
Dror Ladin: And so when they say we understand from the SERE psychologists on the interrogation team, that is Drs. Mitchell and Jessen, correct?
John Rizzo: Again, I don't know specifically.
Bob Bennett: You answered it.
Dror Ladin: 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?
John Rizzo: I do, yes.
Dror Ladin: 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?
Bob Bennett: Well, I look, I object, because the document speaks for itself.
Dror Ladin: I understand.
Bob Bennett: Okay, so
John Rizzo: That is what it says.
Bob Bennett: He says he doesn't remember seeing this.
John Rizzo: So, your question is?
Dror Ladin: 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?
John Rizzo: That is a double negative. I do not I'm sorry.
Dror Ladin: You don't have specific knowledge
John Rizzo: Right.
Dror Ladin: that Mitchell and Jessen did not provide their views on the likelihood of PTSD to the Office of Legal Counsel?
John Rizzo: I do not have specific knowledge of that.
Dror Ladin: 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?
John Rizzo: No I mean, yes.
Dror Ladin: Sorry?
John Rizzo: I don't recall. I don't recall that ever happening, no.
Dror Ladin: Okay. But you don't have a specific recollection that information provided by Mitchell and Jessen was not considered by OLC?
John Rizzo: No.
Dror Ladin: Okay. Thank you. Let's take a break for just a moment, if that is all right.
John Rizzo: 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.) 10:57 a.m., on the record.
Dror Ladin: So, I just want to return to the cable we have been discussing that was Exhibit J to your declaration.
John Rizzo: Right.
Dror Ladin: So, you describe that as a conversion of the August 1, 2002, Bybee memo in Paragraph 44 of your declaration
John Rizzo: Yes.
Dror Ladin: that you had sent to Green, the black site identified as Green.
John Rizzo: Correct.
Bob Bennett: Keep your voice up, please.
Dror Ladin: So, you have seen this cable before?
John Rizzo: I'm sure I did.
Dror Ladin: Well, who drafted this paragraph of your declaration?
John Rizzo: I did.
Dror Ladin: And, in doing so, did you examine the cable at Exhibit J?
John Rizzo: Yes.
Dror Ladin: 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?
Bob Bennett: Then or now?
Dror Ladin: Do you now know who those SERE psychologists are?
John Rizzo: I believe so, yes.
Dror Ladin: And is that Drs. Mitchell and Jessen?
John Rizzo: Yes.
Dror Ladin: 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?
Bob Bennett: I'm going to object on the basis that the document speaks for itself. He has identified it as an exhibit, so
Dror Ladin: I understand. I just want to get his take on the document.
Bob Bennett: Go ahead, over my objection, go ahead.
John Rizzo: I'm sorry, could you
Dror Ladin: 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?
Bob Bennett: And where are you referring to?
Jim Smith: Objection.
Dror Ladin: So that is the bottom paragraph.
Bob Bennett: Objection. Go ahead.
John Rizzo: I'm just reading it again. Yes, that is what it says, yes.
Dror Ladin: 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?
Jim Smith: Objection. You can answer.
John Rizzo: 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.
Dror Ladin: But, in fact, they did provide information that OLC considered in assessing the legality of the techniques?
John Rizzo: Appears to be the case, yes.
Dror Ladin: 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?
John Rizzo: Yes, all of the 12 original techniques, yes, asked for a collective evaluation.
Dror Ladin: And did you ask for the evaluation of any other techniques?
John Rizzo: No. Just the ones that, the 12 that had become part of the record.
Dror Ladin: And these 12 techniques were recommended by Mitchell and Jessen?
John Rizzo: Well, they were recommended by CTC management.
Dror Ladin: And as far as you know, was someone besides Mitchell and Jessen involved in selecting the techniques?
Jim Smith: Objection.
John Rizzo: Yes, I think, my recollection was there were a number of people in CTC involved in that process.
Dror Ladin: Now, once you turned over the assessment process to OLC, would it be correct to say that you wanted legal cover from OLC?
Bob Bennett: Well, I'm going to object. What do you mean by cover?
Dror 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.
Bob Bennett: But I want to be sure his use of the term and yours is the same. That is my concern.
Dror Ladin: I appreciate that. And I think the best way will probably be to have Mr. Rizzo explain it.
Brooks Hanner: Could you tell us which pages?
Dror Ladin: Sure. It is on Page 188.
Brooks Hanner: Thank you.
Dror Ladin: And it is the paragraph at the middle of the page.
Bob Bennett: Beginning with, "I arrived at the meeting"?
Dror Ladin: No, it says, "Above all I," on Page 188.
John Rizzo: 188. This looks familiar.
Dror Ladin: Yes.
John Rizzo: I'm sorry. So, what paragraph are we talking to, about here?
Dror Ladin: So, the one that begins, "Above all."
John Rizzo: 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."
Dror Ladin: So, what do you mean by that?
John Rizzo: 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.
Dror Ladin: And, would you say that you were agnostic as to the outcome of OLC's process?
Bob Bennett: I'm going to object to the word, agnostic. I don't know what that means in terms of
Dror Ladin: Sure. 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?
John Rizzo: No, not really. I just wanted something definitive in writing, one way or the other, so the agency would have that.
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: Let's take a look at Bates 1160. Let's mark this as, I think, Exhibit 47, please. Oh, I believe we forgot to mark your book. I'm sorry. Thank you. (Exhibit Number 47 marked for identification.)
Bob Bennett: Okay. So, we are on 48, then?
Dror Ladin: Yes.
Bob Bennett: Right?
Dror Ladin: Sorry, let's mark the book as 47, or the book excerpt as 47. (Exhibit Number 48 marked for identification.) Yes. What I'm going to ask you about is Paragraph 7.
John Rizzo: Right.
Dror Ladin: 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?
John Rizzo: 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?
Dror Ladin: Well, let's start with the cable. Have you seen this cable before?
John Rizzo: Ever? I, I can't remember.
Dror Ladin: 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?
John Rizzo: I'm generally aware of it. I'm generally aware of that.
Dror Ladin: Were you consulted during that process?
John Rizzo: I'm sure I was.
Dror Ladin: 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?
John Rizzo: No, I don't remember that.
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: Had you ever sought a formal declination of prosecution prior to that?
John Rizzo: No.
Dror Ladin: Have you ever sought one subsequently?
John Rizzo: No.
Dror Ladin: So, do you agree it is a fairly extraordinary thing to seek?
Bob Bennett: I object to the form of the question. The word, extraordinary, means different things to different people.
John Rizzo: Should I answer?
Bob Bennett: Go ahead. Over my objection.
John Rizzo: Well, it was extraordinary times.
Dror Ladin: Did Chertoff tell you why he would not provide a declination of prosecution?
John Rizzo: He said they never do that.
Dror Ladin: And it was your idea to seek it from him?
John Rizzo: Well, it was my idea to ask about the possibility, yes.
Dror Ladin: And was that because there was a possibility that this might transgress criminal law?
John Rizzo: No. I mean, I was just asking because I wanted to secure maximum legal protection for the agency, in any feasible and legitimate form.
Dror Ladin: 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?
John Rizzo: That was my understanding, yes.
Dror Ladin: So, if no criminal law is violated, the declination of prosecution would not serve any particular function?
John Rizzo: That is correct.
Dror Ladin: Eventually OLC came back and authorized all of the Mitchell and Jessen techniques, except for mock burial, right?
John Rizzo: Correct.
Dror Ladin: Did you have an understanding as to why mock burial was being treated differently?
John Rizzo: 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.
Dror Ladin: When you say difficulty getting there, what do you mean?
John Rizzo: Well, I didn't say it. He did. I'm just quoting to you what he said to me.
Dror Ladin: So, what did you understand him to mean?
John Rizzo: Well, I understood him to mean that they were not sure legally that they could authorize, justify the use of that particular technique.
Dror Ladin: And did they say we won't approve it, or did they say it might take more time?
John Rizzo: 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.
Dror Ladin: And then you relayed that holdup to the interrogation team; is that right?
John Rizzo: Yes, I basically asked the question, is this technique something in your experience and expertise that is absolutely a must-have.
Dror Ladin: And if they had said yes, you would have gone back to John Yoo?
John Rizzo: Yes.
Dror Ladin: But they didn't say they needed it?
John Rizzo: 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.
Dror Ladin: And did they have a different view of the necessity of the waterboard that was communicated to you?
Bob Bennett: Well, I'm going to object to the form. I don't know who they is.
Dror Ladin: Sure. Thank you.
Bob Bennett: Would you be specific.
Dror Ladin: Yes. Did the interrogation team have a different view that they communicated to you as to the necessity for the waterboard?
Jim Smith: Objection.
John Rizzo: 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.
Dror Ladin: Well, if we could go back to Exhibit 18.
John Rizzo: All right.
Dror Ladin: I'm going to ask you about Paragraph 4.
John Rizzo: Okay.
Dror Ladin: So, this is feedback that the IC SERE psychologists are providing as part of the OLC approval process.
John Rizzo: Yes.
Dror Ladin: 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."
John Rizzo: Correct.
Dror Ladin: Is it your understanding that OLC had some concerns about the waterboard, that this is feedback that is responsive to those concerns?
John Rizzo: 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.
Dror Ladin: Would you have been aware of any techniques, aside from these 12 that were submitted to OLC for approval?
John Rizzo: I'm sorry, I don't could you, was I aware at the time, or have I ever been aware, or what?
Dror Ladin: 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?
John Rizzo: No.
Bob Bennett: Let him finish his question before you answer.
Dror Ladin: And, would you have been aware at the time if CIA was seeking legal advice from OLC about the use of different techniques?
John Rizzo: Yes.
Dror Ladin: 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?
Jim Smith: Objection.
Bob Bennett: I object to that possible. I mean, anything is possible.
Dror Ladin: Sure. 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?
John Rizzo: Yes. For approval for the legality, yes.
Dror Ladin: 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?
John Rizzo: They, being CTC?
Dror Ladin: CTC.
John Rizzo: They could not have made a decision well, they would have had to go through our office to secure legal approval.
Dror Ladin: And no techniques were submitted by your office to CTC, except for those 12 techniques in 2002?
John Rizzo: Those were the 12 techniques that were submitted to me, yes.
Dror Ladin: And the only techniques that OLC evaluated and approved in 2002 were these Mitchell and Jessen techniques?
Jim Smith: Objection. You can answer.
John Rizzo: Yes, as best I can recall.
Dror Ladin: Okay. Turning back to your declaration. So, at Paragraph 50 on Page 9.
John Rizzo: Wait a second. Yes.
Dror Ladin: You say within a few months of the August 1, 2002 Bybee memo
Bob Bennett: Which paragraph?
John Rizzo: 50.
Dror Ladin: 50.
Bob Bennett: Okay, I'm sorry. Go ahead.
Dror Ladin: You say the OLC confirmed that the EITs could be used on other HVDs. How did that work?
Bob Bennett: I am not sure what that means. I object to the form.
Dror Ladin: Sure. Let me ask it another way. 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?
John Rizzo: That's correct.
Dror Ladin: How did the OLC confirm that?
John Rizzo: 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.
Dror Ladin: You said similar techniques. Were they not identical?
John Rizzo: I don't think they were absolutely identical. That is my recollection.
Dror Ladin: Do you recall any differences?
John Rizzo: 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.
Dror Ladin: And when you say tailored to Zubaydah, in what way was it tailored to Zubaydah?
John Rizzo: 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.
Dror Ladin: Now, in the next paragraph of your declaration, you point to Exhibit N, which are specific guidance for the interrogations of detainees
John Rizzo: Right.
Dror Ladin: held at the black sites. This has been marked as Exhibit 38. (Whereupon, previously marked Exhibit 38, first referral.) This is 38. And so, you said, I believe, that these are the guidelines for interrogations at the black sites; is that correct?
John Rizzo: Yes.
Dror Ladin: 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?
John Rizzo: Yes, as I recall, yes.
Dror Ladin: And this appears to have been sent to Cobalt; is that right?
John Rizzo: That is what it says on the document. The word, Cobalt, is contained there.
Dror Ladin: So, does this document describe the EIT program in 2003?
John Rizzo: Yes.
Dror Ladin: And it lists, it lists on Page 1172 the enhanced techniques that were part of the EIT program in 2003?
John Rizzo: Correct.
Dror Ladin: 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?
John Rizzo: Appear to be.
Dror Ladin: So, was the EIT program a duplication of the techniques that were authorized for Abu Zubaydah that could now be used on other detainees?
Jim Smith: Objection.
John Rizzo: 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.
Dror Ladin: Do you see any technique listed here that is different than the ones that were approved on Abu Zubaydah?
John Rizzo: No, they appear to be the ones.
Dror Ladin: Okay. And these were the techniques that are contained in Exhibit 17?
John Rizzo: Well, again you gave me the one with the blank page.
Dror Ladin: Oh, I do apologize for that.
John Rizzo: Get rid of this one. Yes.
Dror Ladin: And, eventually, the programs, the techniques that were part of the EIT program changed; is that correct?
John Rizzo: Yes.
Dror Ladin: But, certain of the core enhanced interrogation techniques persisted throughout the life of the interrogation program; is that correct?
John Rizzo: I don't know what you mean by core.
Dror Ladin: Were there a number of techniques that were present in the enhanced interrogation program for the lifetime of that program?
John Rizzo: Yes.
Dror Ladin: And other of the techniques were dropped?
John Rizzo: That's correct.
Dror Ladin: Had you kept up with Drs. Mitchell and Jessen during the years of the program?
John Rizzo: Had I kept up with them?
Dror Ladin: Did you consult with them periodically?
John Rizzo: I would, as the years went on, sure, I talked to them. And they talked to me. Yes.
Dror Ladin: And did you get reports about their activities in the program?
John Rizzo: I'm sure they told me what they were doing at any particular time, yes.
Dror Ladin: 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?
John Rizzo: I do.
Dror Ladin: So, your understanding was that they taught other interrogators how to use their techniques?
John Rizzo: Yes.
Dror Ladin: How do, they trained other CIA interrogators in the program?
John Rizzo: That was my understanding, yes.
Dror Ladin: 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?
John Rizzo: Well, that is correct. I mean, I was involved in it after that point, too.
Dror Ladin: 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?
John Rizzo: Okay.
Dror Ladin: So, if you look at the end of the excerpt, it is Pages 269 to 270. If you want to take a look.
John Rizzo: All right.
Dror Ladin: So, it should be the, right by the end of the copy.
John Rizzo: Right, right, right. Right. Beginning with a failed nomination. Yes. I remember that. Yes.
Dror Ladin: 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?
John Rizzo: Yes.
Dror Ladin: And you said Secretary of State Rice wanted a personal briefing on the EIT program?
John Rizzo: Yes.
Dror Ladin: And she wanted to get it directly from the original architects?
John Rizzo: Yes.
Dror Ladin: And those original architects are Drs. Mitchell and Jessen?
John Rizzo: Yes.
Dror Ladin: 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?
John Rizzo: Yes. Based on my recollection, as I was writing, yes.
Dror Ladin: So, Drs. Mitchell and Jessen described the genesis of the original techniques they came up with?
John Rizzo: That was my recollection.
Dror Ladin: And they described the safeguards?
John Rizzo: Yes.
Dror Ladin: Do you remember what those safeguards were?
John Rizzo: 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.
Dror Ladin: And some of those safeguards changed over the years, correct?
John Rizzo: No. I'm not aware of that. Could you be more specific?
Dror Ladin: 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?
John Rizzo: Yes, vaguely, yes.
Dror Ladin: Okay. There were also changes to the amount of time sleep deprivation was authorized for?
John Rizzo: That's correct, that's correct.
Dror Ladin: So, you write here that they described the way the program had evolved and been refined over the years.
John Rizzo: Correct.
Dror Ladin: What did you mean by that?
John Rizzo: 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.
Dror Ladin: And, do you know what Drs. Mitchell and Jessen role was in the refinement of the program at that time?
John Rizzo: 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.
Dror Ladin: And what were the techniques Secretary Rice was concerned about during this meeting?
Bob Bennett: Well, I object. Because you are assuming she was concerned.
Dror Ladin: Sure. Was Secretary Rice concerned about any techniques at this meeting?
John Rizzo: 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.
Dror Ladin: Uh-huh. What did you
John Rizzo: 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.
Dror Ladin: Do you remember what her concern about nudity was?
John Rizzo: 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.
Dror Ladin: 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.
John Rizzo: Right.
Dror Ladin: And we can mark that one. Oh, sorry, it has already been marked as Exhibit 35. (Whereupon, previously marked Exhibit 35, first referral.)
John Rizzo: Okay.
Dror Ladin: So, is this a contemporaneous record of the meeting that took place with Secretary Rice?
John Rizzo: It appears to be, yes.
Dror Ladin: And if you look on the second page, it says that the Secretary expressed her concern about a particular sleep deprivation method.
Bob Bennett: Where are you referring to?
Dror Ladin: Sure, sorry. So, the paragraph begins on the second page. 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?
John Rizzo: Yes, it refreshes my recollection. Yes. I believe I remember something, a discussion along those lines, yes.
Dror Ladin: And her concern was that a detainee who was nude and shackled in a standing sleep deprivation posture evoked images of Abu Ghraib?
John Rizzo: That it what it says, yes.
Dror Ladin: And that is what you recall being expressed in the meeting?
John Rizzo: Yes, I do now. But I didn't when I was writing my book, because I didn't have contemporaneous documents to look at.
Dror Ladin: 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?
John Rizzo: No, I don't recall that.
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: Do you know why it would be Mitchell and Jessen who would be tasked with devising a new form of sleep deprivation?
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: No, I there could well have been. They just didn't, were not in the room with the Secretary at the time.
Dror Ladin: And that is because the Secretary wanted the architects of the program there?
John Rizzo: Yes.
Dror Ladin: I would like to show you the Office of Professional Responsibility report.
John Rizzo: Okay.
Dror Ladin: So, if we could mark this as Exhibit 49. It is quite long. (Exhibit Number 49 marked for identification.)
John Rizzo: Yes, I remember it.
Dror Ladin: You've seen the, this report before, correct?
John Rizzo: Yes, I have.
Dror Ladin: And you were interviewed as part of it?
John Rizzo: I submitted to a voluntary interview, yes.
Dror Ladin: If you look on Page 126?
Ann Querns: Are you marking this?
Dror Ladin: Yes, I am sorry. I think it has been marked. What is the exhibit number? I'm sorry. Did you
THE REPORTER: 49.
Dror Ladin: 49.
Bob Bennett: What page?
Dror Ladin: If you look at the bottom paragraph, this refers to an interview with Dan Levin. Do you remember Dan Levin?
John Rizzo: Oh, sure, sure.
Dror Ladin: Did you interact with him as part of your
Ann Querns: What page are you on?
Dror Ladin: 126. Did you interact with Mr. Levin as part of your work in the General Counsel's Office?
John Rizzo: Sure.
Dror Ladin: 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?
John Rizzo: I see it.
Dror Ladin: 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.
John Rizzo: Yes, I see that.
Dror Ladin: Is that your recollection as well that no one at OLC had asked CIA for information about how sleep deprivation was administered?
John Rizzo: No, I just have no recollection one way or the other about that.
Dror Ladin: 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?
John Rizzo: As I recall, yes.
Dror Ladin: Now, do you think sleep deprivation is fairly similar to jet lag?
Bob Bennett: I object.
Dror Ladin: Sure.
Bob Bennett: But, if you can, answer that.
John Rizzo: I have no idea. I have no idea. I don't
Dror Ladin: 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.
John Rizzo: Oh, wait. I've got to go back. Are we done with this or should I keep it?
Dror Ladin: You should keep it.
John Rizzo: Okay. That is exhibit what, what was that?
Bob Bennett: U.
John Rizzo: Okay. I'm back there. Go ahead.
Dror Ladin: Sure. So, it says Dr. Mitchell this is on the second page near the bottom.
John Rizzo: Uh-huh.
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: And so when her decision was firm, that means she was saying no more nudity?
John Rizzo: That is correct.
Dror Ladin: And had the idea, going into the meeting with Drs. Mitchell and Jessen, had you discussed the nudity EIT?
John Rizzo: I don't recall whether you mean we discussed, that I discussed it with Drs. Mitchell and Jessen?
Dror Ladin: That's right.
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: As I recall, again it was CTC that thought nudity was a valuable and important feature of the program.
Dror Ladin: Okay. So, getting back to that guidance we looked at, that was Exhibit N to your declaration, marked as Exhibit 38.
John Rizzo: Okay.
Dror Ladin: You said that the, this guidance appears to have been sent to Cobalt in January of 2003. Is that right?
John Rizzo: 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.
Dror Ladin: Do you have a reason to believe this document was not sent to Cobalt?
John Rizzo: No.
Dror Ladin: And you've identified this as the guidance that went out to black sites, right?
John Rizzo: That's correct, yes. (Whereupon, previously marked Exhibit 21, first referral.)
Dror Ladin: 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.
John Rizzo: Okay.
Dror Ladin: Here is one for you.
Bob Bennett: Thank you.
Dror Ladin: Have you seen that document before?
John Rizzo: No.
Dror Ladin: 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."
John Rizzo: Yes, I've got it.
Jim Smith: Give us a second.
Dror Ladin: Sure. I'm going to ask you about the second paragraph here.
Jim Smith: The paragraph that begins with "We also believe"?
Dror Ladin: That's correct.
John Rizzo: Okay, I see it.
Dror Ladin: 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?
John Rizzo: No, no.
Dror Ladin: 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?
John Rizzo: That was my understanding, yes. (Whereupon, previously marked Exhibit 10, first referral.)
Dror Ladin: 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?
John Rizzo: That is the IG report.
Dror Ladin: Yes.
John Rizzo: Yes, I've seen that.
Dror Ladin: And you were interviewed as part of it?
John Rizzo: I must have been. I was being interviewed a lot in those days.
Dror Ladin: Yes. If you go to the page marked Bates 1392.
John Rizzo: 1392. That doesn't compute.
Dror Ladin: 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.
John Rizzo: Okay. So, if I go to D63, I will find it
Dror Ladin: You will. Unless this is also multiply paginated. And the paragraph I'm asking you about is 122.
John Rizzo: Okay, I've got it. Okay.
Dror Ladin: And it says, the word, Cobalt, is sort of inserted there, above a redaction.
John Rizzo: Right.
Dror Ladin: 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?
John Rizzo: Yes.
Dror Ladin: 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?
John Rizzo: If there was an approval, yes, that is how it would work.
Dror Ladin: And this appears to indicate that that process was in place at Cobalt?
John Rizzo: 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.
Dror Ladin: So, is it your understanding that EITs were not authorized at Cobalt?
John Rizzo: That's correct.
Dror Ladin: 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?
John Rizzo: That is my recollection.
Dror Ladin: What is your recollection based on?
John Rizzo: My memory. I mean. Is that
Dror Ladin: So, to return to Exhibit N to your declaration, that is the guidance that went out to black sites, correct?
John Rizzo: Right, right. January, yes, '03.
Dror Ladin: And that guidance went out to Cobalt; is that correct?
John Rizzo: It appears to have been.
Dror Ladin: And it describes the process whereby detainees at Cobalt could be subjected to enhanced interrogation techniques; is that correct?
Bob Bennett: Well, it speaks for itself. So I object.
Dror Ladin: 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.
John Rizzo: 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.
Dror Ladin: Uh-huh.
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: Yes. What I've said, yes.
Dror Ladin: And the use of EITs in an unauthorized fashion would result in such a report?
John Rizzo: Sure, it would be unauthorized.
Bob Bennett: Keep your voice up.
Dror Ladin: So, let's mark this as is this 50?
THE REPORTER: 50. (Exhibit Number 50 marked for identification.)
Dror Ladin: 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?
John Rizzo: 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?
Dror Ladin: Yes. Or that weren't authorized for that particular detainee.
John Rizzo: Right, right.
Dror Ladin: Does this appear to be one of those investigations?
John Rizzo: I have no idea. I don't know what this is. Disposition Memorandum. Is this an Inspector General document? I don't know.
Dror Ladin: Yes.
John Rizzo: Okay.
Dror Ladin: 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
John Rizzo: Okay.
Dror Ladin: 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"?
Jim Smith: Objection.
John Rizzo: Yes.
Dror Ladin: And then there was a response with authorization to use the EITs?
John Rizzo: In this particular case, or just as a procedural matter?
Dror Ladin: 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?
John Rizzo: Yes, it describes the process.
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: Well, let's
Jim Smith: Could we ask you to keep your voice up, please?
John Rizzo: I'm sorry. I am a quiet guy. I will try to talk louder.
Dror Ladin: So, actually, let's just turn back to the CIA response, which is, I think, Exhibit 21 over there in your pile.
John Rizzo: Oh, the one I haven't seen, okay. Right?
Dror Ladin: Yes. Right below the special review.
John Rizzo: Okay. Okay.
Dror Ladin: And if you go to Page 56.
Jim Smith: Which one?
Dror Ladin: Sure. It is 21. And it's page 56. And if there is multiple 56s, this is the one that begins, "We agree." So, I just want to ask you about that paragraph.
John Rizzo: Uh-huh.
Dror Ladin: 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?
Jim Smith: Objection.
John Rizzo: It appears to.
Dror Ladin: In your view, if headquarters approved the use of EITs on a detainee, was that detainee part of the EIT program?
John Rizzo: Yes, if the EITs were approved on a detainee, yes, that would be part of the EIT program.
Dror Ladin: 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.) And, a large amount of this document is redacted, but I'm going to ask you about Bates 1580 to 81.
Jim Smith: Sorry?
Dror Ladin: 1580 to 81.
John Rizzo: Okay.
Dror Ladin: 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."
John Rizzo: I see that, yes.
Dror Ladin: Would the CIA have a reason to lie about using techniques on a detainee that it didn't actually use EITs on?
Bob Bennett: I'm going to object to that.
John Rizzo: They would have no reason to lie about that.
Dror Ladin: In your experience did the CIA keep records about which EITs were used on detainees in the EIT program?
John Rizzo: That is my understanding, yes.
Dror Ladin: And in your understanding, those records were accurate?
John Rizzo: I can't guarantee that every one of them were accurate, but ...
Dror Ladin: Do you have any reason to suspect that the CIA's records were inaccurate?
Jim Smith: Objection.
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: Yes.
Dror Ladin: And is it your understanding that there were many such cases in which the CIA used EITs on unauthorized detainees?
Bob Bennett: I'm going to object to the word, many, because that means different things to different people.
Dror Ladin: Sure.
John Rizzo: I would use the word, occasionally.
Dror Ladin: Occasionally.
John Rizzo: Yes.
Dror Ladin: 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.
Bob Bennett: Good. You read my mind.
Dror Ladin: Yes. Would the lack of I've learned from you.
Bob Bennett: Thank you. Any time.
Dror Ladin: 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?
John Rizzo: Yes, I mean, if there was no investigation, then of course that means the techniques were approved, had been approved.
Dror Ladin: 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?
Jim Smith: Objection.
John Rizzo: I'm sorry?
Dror Ladin: That is page 1580.
John Rizzo: 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?
Dror Ladin: 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?
Jim Smith: Object to the characterization of the document.
John Rizzo: Right.
Bob Bennett: And what is the question?
Dror Ladin: 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?
Jim Smith: Objection.
John Rizzo: Well, it indicates he underwent the following EITs. That is what it says.
Dror Ladin: And does that indicate to you that this individual was part of the EIT program?
Jim Smith: Objection.
John Rizzo: Not necessarily. I, you know, it doesn't say he underwent the following approved EITs.
Dror Ladin: Well, if we can go back to the document you were just looking at which was the CIA's response.
John Rizzo: Okay. Okay. Direct me to a page.
Dror Ladin: Sure. It is Page 56. It is the document we were just looking at.
John Rizzo: Right.
Dror Ladin: And it says, "In the cases involving those detainees, Abu Hazim and Abd al-Karim, headquarters ultimately approved the techniques.
John Rizzo: That's correct, right.
Dror Ladin: Does that indicate to you that those two detainees were part of the CIA's EIT program?
Jim Smith: Objection.
John Rizzo: If headquarters ultimately approved the techniques, I would say they were part of the EIT program.
Dror Ladin: 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?
Jim Smith: Objection.
John Rizzo: That is what it seems to indicate.
Dror Ladin: Do you have any reason to doubt that he was part of the CIA's EIT program?
Jim Smith: Objection.
John Rizzo: I have no understanding either way. I honestly don't remember this case.
Dror Ladin: And turning back to the document with the biographies, which is Exhibit Number 44. If you could just turn to page 1567.
John Rizzo: Okay. Got it.
Dror Ladin: And do you see there a description of another detainee was subjected to a list of EITs?
John Rizzo: Give me a second.
Dror Ladin: Sure.
John Rizzo: Yes, I see where it says he underwent the following EITs.
Dror Ladin: And those EITs are the EITs of the CIA's EIT program?
John Rizzo: They look like it. Yes, they appear to be.
Dror Ladin: Do you have any reason to believe that this person was not part of the CIA's EIT program?
Jim Smith: Objection.
John Rizzo: I have no reason to dispute it or confirm it. Again, I don't remember this name or this case.
Dror Ladin: 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?
Bob Bennett: I'm going to object. There is no basis that the defendants had nothing to do with the preparation of the declaration.
Dror Ladin: Did the defendants see the declaration before it was finalized?
Bob Bennett: I don't know. I don't think so.
Dror Ladin: Well, did you, did you speak with the defendants about your declaration?
John Rizzo: The defendants?
Dror Ladin: Yes.
John Rizzo: No.
Dror Ladin: Did you speak with their attorneys about the declaration?
John Rizzo: No.
Dror Ladin: How did you decide what your declaration would include?
John Rizzo: Well, my attorneys indicated the areas that I should try to cover in the declaration and
Bob Bennett: I'm going to object beyond that.
Dror Ladin: And that would be on the basis of privilege?
Bob Bennett: Well, I don't think you have any right to ask him why I decided to include certain things in his declaration.
Dror Ladin: Sure. And
Bob 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.
Dror Ladin: 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.
John Rizzo: Right.
Dror Ladin: Your declaration makes no statements about the other plaintiffs in this case. Your declaration was provided as part of this case.
John Rizzo: Right.
Dror Ladin: 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?
John Rizzo: No.
Dror Ladin: Okay. Did you ever seek OLC guidance for a separate EIT program that was distinct from the EIT program we have been discussing?
John Rizzo: 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?
Dror Ladin: Yes.
John Rizzo: No.
Dror Ladin: 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?
John Rizzo: No recollection of doing any such thing.
Dror Ladin: Did you ever hear about investigations of EIT use on either Salim Abdullah or Mohamed al-Karim?
John Rizzo: 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.
Dror Ladin: Okay.
Hank Schuelke: I'm told that the staff has got lunch outside. Is this a good time?
Dror 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.) 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.
Dror Ladin: Mr. Rizzo, I would like to direct your attention to document that we will mark Is this 51? (Exhibit Number 51 marked for identification.) 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.
John Rizzo: Okay, I'm there.
Dror Ladin: 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?
John Rizzo: I do.
Dror Ladin: Is it your understanding that stress positions are an enhanced interrogation technique?
John Rizzo: I don't believe they were I don't believe they were listed as such.
Dror Ladin: Maybe we can compare it to Exhibit N to your declaration, which is the interrogation guidance.
John Rizzo: Okay.
Dror Ladin: Do you see where it lists the enhanced techniques?
John Rizzo: Let's see. Is that Paragraph 2? I know I've looked at them before. I just can't remember
Bob 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.
John Rizzo: I see, okay.
Bob Bennett: Do you see what I mean?
John Rizzo: Yes, I understand.
Bob Bennett: Okay.
John Rizzo: 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.
Dror Ladin: And do you see sleep deprivation listed there?
John Rizzo: I do.
Dror Ladin: What about facial slap?
John Rizzo: Yes.
Dror Ladin: 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?
Jim Smith: Objection.
John Rizzo: Yeah. I mean, it would, that is what it says.
Dror Ladin: Okay. And it is saying, "Additional interrogation methods for Cobalt detainees." Do you see that at the top?
John Rizzo: Yes.
Dror Ladin: Okay. Do you have any reason to doubt that the CIA IG report is accurate?
Jim Smith: Objection.
John Rizzo: 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.
Dror Ladin: Have you ever encountered an IG report that made up, say, a cable from whole cloth?
John Rizzo: No.
Dror Ladin: As part of your job, would you review the IG reports that were created as part of the interrogation program?
John Rizzo: Well, sure. Yes. I'm sure I read this one when it was completed, yes.
Dror Ladin: 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?
John Rizzo: Sure.
Dror Ladin: Do you have any recollection of identifying misstatements in this report?
John Rizzo: I don't.
Dror Ladin: 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.) And I'm going to ask you about the second page of this cable.
John Rizzo: Okay, I've read it.
Dror Ladin: 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."
John Rizzo: That is correct.
Dror Ladin: Do you know what HVT stands for?
John Rizzo: I believe it is high value terrorist.
Dror Ladin: So, this person who is being evaluated is being evaluated for techniques including HVT enhanced measures?
John Rizzo: That is what it says, yes.
Dror Ladin: And then the next paragraph makes the recommendation that employing enhanced measures is not the first or best option to yield positive results?
John Rizzo: Wait a minute. Let me I have to read that next paragraph. Okay, yes.
Dror Ladin: Does this cable appear to set forth an assessment of whether to employ enhanced measures on the subject of the cable?
John Rizzo: It appears to, yes.
Dror Ladin: Now, you wrote in your declaration that Gul Rahman was not part of the high value detainee enhanced interrogation technique program.
John Rizzo: That's correct.
Dror Ladin: Why did you write that?
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: I don't, I don't know. I just don't know.
Dror Ladin: 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?
John Rizzo: Well, as I said earlier, my recollection was that detainees at Cobalt were not part of the enhanced interrogation program.
Dror Ladin: 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
John Rizzo: I'm sorry. Which document?
Dror Ladin: This was just the exhibit that we just marked. I believe it was Exhibit 51.
John Rizzo: Oh, the IG report. Okay. Refer me to the paragraph you want me to look at again.
Dror Ladin: Sure. So, it is Bates 1287.
John Rizzo: Okay. You are talking about the paragraph at the top. Correct?
Dror Ladin: Yes, which says, which talks about additional interrogation methods for Cobalt detainees.
John Rizzo: Yes.
Dror Ladin: And it suggests using interrogation pressures that you've identified as enhanced interrogation techniques?
John Rizzo: Well, it says it requested permission to apply these certain EITs, yes.
Dror Ladin: Yes. Does that change at all your recollection of whether enhanced interrogation techniques were used at Cobalt?
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: All right. Let's return to the larger IG report, which Do you remember what exhibit that is? Yes, I previously marked as Exhibit 10.
Jim Smith: 10?
John Rizzo: This?
Dror Ladin: Yes.
John Rizzo: Okay. Just one second. So, if you go to page
Dror Ladin: Bless you.
Bob Bennett: Thank you.
Dror Ladin: If you go to either Page D63 or U.S. Bates 1392. And if you look again at Paragraph 122.
John Rizzo: All right. I see it.
Dror Ladin: This seems to describe a change in the use of EIT at Cobalt after the promulgation of the guidance. Is that accurate?
John Rizzo: It appears to be what it says.
Dror Ladin: And it says that there are procedures for using EITs, and that written interrogation plans are prepared and sent to headquarters for each detainee.
John Rizzo: That is what it says.
Dror Ladin: Do you have a reason to believe that is not accurate?
John Rizzo: No.
Dror Ladin: When you look at this, does it change at all your recollection as to whether enhanced interrogation techniques were used at Cobalt?
John Rizzo: Well, no. I mean my recollection remains the same. This speaks for itself.
Dror Ladin: Okay. But you don't have a reason to believe that this is inaccurate?
John Rizzo: That this paragraph no, I don't have any reason to believe it is inaccurate.
Dror Ladin: Okay. Do you think that there was a separate interrogation program that Gul Rahman was part of?
John Rizzo: Separate interrogation program?
Dror Ladin: Separate from the CIA's.
John Rizzo: Enhanced interrogation program?
Dror Ladin: Yes.
John Rizzo: 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.
Dror Ladin: What would that program be?
John Rizzo: What is the name of it? I mean
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: 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.
John Rizzo: Okay, I've got it.
Dror Ladin: If you look at the end of Paragraph 3, when it says HVT enhanced measures, is your understanding that those are enhanced interrogation techniques?
John Rizzo: That says enhanced measures.
Dror Ladin: Do you have an understanding of what that term means?
John Rizzo: Actually I don't. As I say, I refer to it, I've always referred to
Bob Bennett: Keep your voice up.
John Rizzo: I've always referred to the program as enhanced interrogation program.
Dror Ladin: Okay. Do you, sitting here today, do you have any understanding of HVT enhanced measures as including something different than the enhanced interrogation techniques?
John Rizzo: 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.
Dror Ladin: Okay. All right. Well, let's go back to the CIA's response to the Senate report, which What is that one marked? Marked as 21. This is the one that begins with, "Memorandum for."
John Rizzo: Yes. Okay.
Dror Ladin: And you said you had not previously read this document; is that correct?
John Rizzo: That's correct, I have not.
Dror Ladin: Do you have any reason to believe that the CIA's comments to the Senate were inaccurate?
Jim Smith: Objection.
John Rizzo: I have no reason for believing that, no.
Dror Ladin: In your experience, would the CIA make misrepresentations to members of Congress about this enhanced interrogation program?
John Rizzo: No.
Dror Ladin: Okay. If you turn to Page 25. Do you see there the
Jim Smith: Give us a second.
John Rizzo: Hold it.
Dror Ladin: Sure. This is the Page 25 that begins, "CIA remains grateful."
John Rizzo: All right, I have it.
Dror Ladin: Okay. Do you see the second bullet point?
John Rizzo: I do.
Dror Ladin: 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?
John Rizzo: I believe I had that impression, yes.
Dror Ladin: And did that suggest to you the existence of a conflict of interest?
John Rizzo: No, it did not.
Dror Ladin: 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?
John Rizzo: Do I believe that now, or at the time?
Dror Ladin: Yes, do you disagree with the CIA's statement here?
John Rizzo: No. No.
Dror Ladin: 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?
John Rizzo: Yes, I think that is a fair, a fair suggestion.
Dror Ladin: If you look back at the IG report.
John Rizzo: This is a big one?
Dror Ladin: Actually, sorry. Never mind, we don't really need to do that. Let's go back to the office, or professional responsibility report instead.
John Rizzo: Okay.
Dror Ladin: I'm going to ask you about a statement on Page 100.
John Rizzo: Okay.
Dror Ladin: So, it says there that you had an MFR of a March 24, 2003, meeting?
Jim Smith: What exhibit is before the witness?
Avram Frey: This is 239.
Jim Smith: What page?
John Rizzo: What page is this?
Dror Ladin: Page 100.
John Rizzo: I don't see that.
Dror Ladin: 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?
John Rizzo: I'm sorry. Could you rephrase? Are you, am I supposed to be looking at a document here, or
Dror Ladin: 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?
John Rizzo: Yes, yes, I generally remember that episode, yes.
Dror Ladin: Do you remember what happened?
Jim Smith: Objection.
John Rizzo: 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.
Dror Ladin: And do you remember what the conclusion was?
John Rizzo: 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.
Dror Ladin: Do you remember the statement having to be clarified so that it referred only to Department of Defense detainees?
John Rizzo: I don't remember that.
Dror Ladin: Okay.
John Rizzo: I don't remember that.
Dror Ladin: Well, let's look at a letter written by John Bellinger, so this would be Exhibit 52. (Exhibit Number 52 marked for identification.) And the question I'm going to ask you about is on Page 3.
John Rizzo: Okay, I'm at 3.
Dror Ladin: 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."
John Rizzo: Yes, I see that.
Dror Ladin: 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?
Jim Smith: Objection.
Bob Bennett: I'm going to object in that.
John Rizzo: Do I answer or no?
Bob Bennett: Yes.
John Rizzo: Yes, I think it can be humiliating.
Dror Ladin: Do you think it could be considered degrading?
Jim Smith: Objection.
John Rizzo: I think humiliating is, again, is a definitional term. I don't know about degrading.
Dror Ladin: So, you don't think it would be degrading treatment to have someone shackled to the ceiling in a diaper?
John Rizzo: 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.
Dror Ladin: Are you aware that the U.S. courts have found solitary confinement in dark cells with no opportunity for cleanliness to be degrading?
Bob Bennett: Objection. Go ahead, if you know.
John Rizzo: I don't know, I don't know that.
Dror Ladin: Would it make a difference to you if you did know that?
Jim Smith: Objection.
Bob Bennett: Objection, don't answer that.
John Rizzo: No, okay.
Bob Bennett: Well, how can you answer that?
Dror Ladin: Well, I don't know. I would like to
Bob Bennett: Repeat the question.
Dror Ladin: Would it make a difference to you if you knew let me perhaps, let me rephrase it better?
Bob Bennett: Okay.
Dror Ladin: 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?
Jim Smith: Objection.
Bob Bennett: Objection. Go ahead, if you can.
John Rizzo: Yes, that would. I mean that would have an impact if the courts had held that, sure.
Dror Ladin: 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?
John Rizzo: That's correct.
Dror Ladin: And that is the information that you relayed to OLC?
John Rizzo: I believe it was, yes.
Dror Ladin: And, the premise was that the EITs would stop once the detainee became compliant?
John Rizzo: Correct.
Dror Ladin: And so the detainee could make the EITs stop at any time by complying?
John Rizzo: Correct.
Dror Ladin: Okay. Turning back to the CIA Inspector General's report. I'm going to ask you about
John Rizzo: This is the big one, the special review?
Dror Ladin: That's correct. And that is Exhibit 10.
John Rizzo: All right.
Dror Ladin: And I'm going to ask you about Bates 1422, which is Paragraph 206.
John Rizzo: I am sorry. Could you give me the D number? That is easy for me to find that.
Dror Ladin: Sure. But that might take me just a moment.
Jim Smith: 226?
Dror Ladin: 1422.
John Rizzo: Oh, I see.
Dror Ladin: Yes, so, Paragraph D93. Thank you.
John Rizzo: Okay, D93.
Dror Ladin: 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."
John Rizzo: I see that, yes.
Dror Ladin: Have you ever heard of that concern?
John Rizzo: I may have. I don't have any present recollection of hearing it.
Dror Ladin: 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.
John Rizzo: Still in the IG report?
Dror Ladin: No, sorry. I'm about to hand you a document. So, let's, please mark this one. (Exhibit Number 53 marked for identification.) And I'm going to ask you about Paragraph 4 on the second page of the cable.
John Rizzo: Okay. Give me a second. Yes, I see it.
Dror Ladin: Okay. So it says that "At this stage it is unlikely highly unlikely according to the interrogation team that the subject has actionable "
Jim Smith: Paragraph 4.
Dror Ladin: Paragraph 4, yes. "That the subject has actionable new information about current threats." Do you see that?
John Rizzo: Yes.
Dror Ladin: And if you turn to the first page, you see a date of August 10th; is that right?
John Rizzo: That's correct.
Dror Ladin: Okay. If we turn to your book excerpts, which is, is that Exhibit 47?
Bob Bennett: I'm sorry, where is the date August 10th?
Dror Ladin: At the top. Sorry.
John Rizzo: In the middle there.
Bob Bennett: Doesn't that say August 2nd.
Dror Ladin: No, that is August '02, 2002.
John Rizzo: Okay.
Dror Ladin: So, turning to your book excerpt, you wrote, on Page 193
John Rizzo: Wait a minute. Is that part of the book excerpts you handed me earlier?
Dror Ladin: Uh-huh. I think one of your attorneys actually has the book, itself.
John Rizzo: I'm sorry, I can't get used to these double sides. Okay, go ahead.
Dror Ladin: 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?
John Rizzo: On 192. Let's see.
Dror Ladin: I think it is 193, actually.
Jim Smith: Which paragraph?
Dror Ladin: Let's get there.
John Rizzo: Yes, I see where that is now.
Dror Ladin: 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?
John Rizzo: That's right.
Dror Ladin: What did you understand the term learned helplessness to me?
John Rizzo: Well I'm a layman. My understanding is that the notion that the detainee would recognize that further resistance would be futile.
Dror Ladin: And so, therefore, he wouldn't be holding anything back?
John Rizzo: Yes, correct.
Dror Ladin: 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.
John Rizzo: Right.
Dror Ladin: 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?
John Rizzo: I see that, yes.
Dror Ladin: I would like you to look at another document. So, let's mark this. (Exhibit Number 54 marked for identification.) If you turn to the second page.
John Rizzo: Okay.
Dror Ladin: 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."
John Rizzo: I see that.
Dror Ladin: 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.
John Rizzo: Right. I wanted to look at the date of the cable, that is all. August 14th. Yes.
Dror Ladin: 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?
John Rizzo: Uh-huh.
Dror Ladin: 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?
John Rizzo: Yes, I see that.
Dror Ladin: 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?
John Rizzo: I don't remember being told that, no.
Dror Ladin: Please mark this as Exhibit 55. (Exhibit Number 55 marked for identification.) You can see that this cable is dated August 19th
John Rizzo: Right.
Dror Ladin: 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"
John Rizzo: I'm sorry.
Dror Ladin: Sorry.
John Rizzo: Can you direct me to where you are reading from?
Dror Ladin: Sure. It is the comment in the middle of the page.
John Rizzo: "Subject was prepared for application of the waterboard." That one? Okay.
Dror Ladin: Yes.
John Rizzo: Okay, go ahead.
Dror Ladin: 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?
John Rizzo: Yes.
Dror Ladin: "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
John Rizzo: I'm sorry. I can't keep up with you.
Dror Ladin: Sure.
John Rizzo: Is it the same paragraph?
Dror Ladin: Same paragraph.
John Rizzo: Okay.
Dror Ladin: 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."
John Rizzo: Right, I see that.
Dror Ladin: Did you know at the time that waterboarding was continuing ten days after Abu Zubaydah had been assessed as compliant?
John Rizzo: 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.
Dror Ladin: Yes. And this appears to indicate that he was still being waterboarded on Day 16; is that right?
John Rizzo: That is what it appears to say, yes.
Dror Ladin: And it says that he was instructed that revealing the requested information would stop the procedure?
John Rizzo: That is what it says.
Dror Ladin: That he begged and cried, but was not able to produce that information.
John Rizzo: That is what it says, yes.
Dror Ladin: And so he was waterboarded again?
John Rizzo: Yes.
Dror Ladin: Now, if we go back to the IG report, back to that page, which is Bates 1423. And that is D 94.
John Rizzo: Right, I got it.
Dror Ladin: 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.
Jim Smith: Objection. That's not what it says.
Dror Ladin: Sorry. 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."
John Rizzo: Yes, I see that.
Dror Ladin: Were you aware that the interrogation team on the ground had repeatedly recommended that the subject was compliant?
John Rizzo: 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.
Dror Ladin: Would it be accurate to say that Abu Zubaydah could have terminated the use of EITs at any time by complying?
John Rizzo: Well, that was yeah, that was, that was the understanding. That was my understanding.
Dror Ladin: And looking at these cables and at the IG report, do you believe that understanding to be correct?
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: Yes, I see that.
Dror Ladin: Do you understand that to mean that his waterboarding was caused by a lack of ability to properly assess his compliance?
John Rizzo: 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?
Dror Ladin: Sure. Is it your understanding reading this that Abu Zubaydah was capable of terminating the employance of EITs on him by complying?
Bob Bennett: Well, I object because all you are asking him is to read things in the report.
Dror 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.
Bob Bennett: But the report is the report, and it speaks for itself, so
Dror Ladin: Well, I'm trying to understand an aspect of the authorization here and I'm hoping
Bob Bennett: Okay, but I'm just
Dror Ladin: I appreciate that.
Bob Bennett: He is not confirming things. He is just saying he is just confirming these are the words that are in the report.
John Rizzo: That is correct.
Bob Bennett: Go ahead.
John Rizzo: That is what it says here.
Bob Bennett: Go ahead, over my objection, but go ahead.
Dror Ladin: Let's go to the legal guidance that was given from OLC. Tab 11. Let's mark this exhibit, please. (Exhibit Number 56 marked for identification.) Okay. Have you seen this document before?
John Rizzo: I have.
Dror Ladin: Okay. I'm going to ask you about a paragraph on Bates 319.
Jim Smith: Have you marked the document as an exhibit?
Dror Ladin: Sure, I think it is marked.
John Rizzo: 56? 319?
Dror Ladin: Yes.
John Rizzo: Okay, I have it.
Dror Ladin: And do you see the last paragraph there?
Jim Smith: I'm sorry. What page, please?
Dror Ladin: Sure, it is Bates 319, also marked as 262 on this document.
Jim Smith: Is it U.S. 319?
Dror Ladin: Yes.
John Rizzo: All right, okay.
Dror Ladin: So, this is a document from OLC to you; is that correct?
John Rizzo: Correct.
Dror Ladin: And this is based on the information that CIA provided OLC on the use of the techniques?
John Rizzo: Yes.
Dror Ladin: And turning back to the CIA IG report.
John Rizzo: Okay. What page?
Dror Ladin: It is Bates 1443 to 1444. Paragraph 264.
John Rizzo: 1443.
Dror Ladin: To 1444. Do you see Paragraph 264 at the bottom?
John Rizzo: Are you talking about 44 or 43?
Dror Ladin: At the bottom of 43.
John Rizzo: The paragraph that begins, "Agency officers report"?
Dror Ladin: Yep.
John Rizzo: Okay. Right. I see that.
Dror Ladin: 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"?
John Rizzo: Yes, I see that.
Dror Ladin: 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?
Jim Smith: Objection.
John Rizzo: 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.
Dror Ladin: 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
John Rizzo: Yes, yes.
Dror Ladin: the 2003 report is different than how the process is described in this 2007 OLC guidance, isn't it?
John Rizzo: Well, according to well, some agency officers reported that, yes.
Dror Ladin: So, these agency officers would be the people on the ground using the techniques?
John Rizzo: I have no idea who they are. They didn't
Dror Ladin: 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?
John Rizzo: Yes.
Dror Ladin: That is in
John Rizzo: That's correct.
Dror Ladin: And so is what those field operators report inconsistent with the information that the OLC was describing here in the 2007 document?
John Rizzo: It appears to be inconsistent, yes. It is their assertions.
Dror Ladin: 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?
Jim Smith: Objection.
John Rizzo: Well, unless some participants in the program particularly field interrogators apparently believed.
Dror Ladin: And do you know if the program changed as a result of the concerns that were written down in the IG report?
John Rizzo: 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.
Dror Ladin: And you didn't yourself observe interrogations, right?
John Rizzo: I never did, no.
Dror Ladin: And OLC, did they observe interrogations?
John Rizzo: I don't believe so. I don't believe so. Because they would have had to no. Not to my recollection.
Dror Ladin: 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?
John Rizzo: That's correct.
Dror Ladin: And you relied on them to implement faithfully the legal guidance that you were sending?
John Rizzo: Yes.
Dror Ladin: Let's see is this is in the version of the OPR that we have. It is not. Did you ever hear a concern that the waterboard was overused on some detainees?
John Rizzo: I probably, I probably did.
Bob Bennett: Just don't guess. Yes, no, full answer, but do you remember?
John Rizzo: Repeat the question, I'm sorry.
Dror Ladin: Did you ever hear a concern that the waterboard was overused on some detainees?
John Rizzo: Yes, I heard that.
Dror Ladin: Do you remember the details of what you heard?
John Rizzo: No. No. I can't remember which detainees were being talked about.
Dror Ladin: Well, staying with the IG report. If you look at Bates number 1360.
John Rizzo: Okay, I'm on 1360.
Dror Ladin: Do you see the Footnote Number 26?
John Rizzo: I do.
Dror Ladin: 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?
John Rizzo: I do.
Dror Ladin: Do you remember that concern being communicated to you?
John Rizzo: Well, I remember reading about it in the IG report.
Dror Ladin: And did that lead to any changes in the program that you remember?
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: Yes.
Dror Ladin: Do you agree with that criticism?
John Rizzo: 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.
Dror Ladin: Did you ever communicate with OMS about the program?
John Rizzo: I'm sure I must have, yes.
Dror Ladin: Do you recall anything that OMS told you about their views on the program?
John Rizzo: Actually what I remember is the OMS people I talked to about the program was worthwhile and professionally managed.
Dror Ladin: Okay. Let's look at the OPR report.
John Rizzo: Okay.
Dror Ladin: On pages, on Page 140.
John Rizzo: Okay, I have 140.
Dror Ladin: Do you remember Mr. Philbin from the Office of Legal Counsel?
John Rizzo: Pat Philbin, yes.
Dror Ladin: Do you see here at the bottom of Page 140, there is a statement from Mr. Philbin?
John Rizzo: Yes, I see that.
Dror Ladin: He says that, "It had not been known in 2002 that detainees were kept in diapers, potentially for days at a time."
John Rizzo: Yes, I see that.
Dror Ladin: Do you remember whether CIA informed OLC that in 2002, that detainees were kept in diapers for potentially days at a time?
John Rizzo: I can't remember. There were lots of discussions with OLC in 2002.
Dror Ladin: Do you have any reason to doubt Mr. Philbin's account?
John Rizzo: No, I mean, Mr. Philbin is a good attorney and an honorable man.
Dror Ladin: 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?
John Rizzo: No, I would not agree with that statement.
Dror Ladin: So, what part of it do you disagree with?
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: 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.
John Rizzo: Yes, on that one, my recollection is that we did tell OLC about the shackling.
Dror Ladin: Okay. Do you have a specific recollection of that?
John Rizzo: No.
Dror Ladin: 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?
John Rizzo: 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.
Dror Ladin: Does it trouble you that Mr. Philbin had this reaction to the CIA's program?
Bob Bennett: I'm going to object to that, but go ahead and answer, if you can.
John Rizzo: No, it didn't trouble me. I have a lot of respect for Mr. Philbin. So, he is certainly free to express his opinions.
Dror Ladin: 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?
Bob Bennett: Objection, go ahead.
Jim Smith: Objection.
John Rizzo: Does it trouble me that Bellinger said it?
Dror Ladin: Yes.
John Rizzo: No. John was expressing his sincerely held opinions. As we discussed earlier, it also reflected the view of his superior, Secretary Rice.
Dror Ladin: 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?
John Rizzo: Okay. We are going back now to the beginning of the program, when it was first presented
Dror Ladin: At any point?
John Rizzo: 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.
Dror Ladin: Sure. You were presented with a list of techniques.
John Rizzo: Right.
Dror Ladin: You were told they were based to some degree on SERE training.
John Rizzo: Right.
Dror Ladin: You were presented and you presented OLC with data as to the safety of those techniques in terms of SERE.
John Rizzo: Uh-huh.
Dror Ladin: All of that safety data, that was based on SERE training of volunteers; is that correct?
John Rizzo: That was my understanding, yes.
Dror Ladin: And, neither Mitchell nor Jessen nor anyone else pointed you to studies of prisoners of war; is that correct?
John Rizzo: Not that I recall, no.
Dror Ladin: And you didn't, yourself, review, as far as you recall, any studies of actual prisoners of war; is that correct?
John Rizzo: I did not.
Dror Ladin: In fact, I believe, let's mark this as 52 oh, 57. (Exhibit Number 57 marked for identification.) 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?
John Rizzo: Yes, right.
Dror Ladin: And you told the Times that in hindsight
Bob Bennett: Where are you in the article?
Dror 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.
Jim Smith: I don't.
John Rizzo: Is it at the bottom.
Dror Ladin: Sure. It is on Page 5. It says, "Back home in Virginia."
John Rizzo: General Xenakis, yes. Right. I see that.
Dror Ladin: 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?
John Rizzo: I see that, yes.
Dror Ladin: Do you remember any research into the effects of abusive practices at the time that these techniques were being considered?
John Rizzo: Abusive
Dror Ladin: Abusive practices, rather than training on volunteers?
John Rizzo: Yes. No, I don't recall that.
Dror Ladin: 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?
John Rizzo: Yes.
Dror Ladin: Do you stand by that statement?
John Rizzo: Yes, that is what I said, in hindsight. Sure.
Dror Ladin: And you are a lawyer, of course, not a psychologist, correct?
John Rizzo: I am not a psychologist.
Dror Ladin: And you were not aware of the body of social science research that existed about prisoners of war; is that correct?
John Rizzo: I was not, no.
Dror Ladin: And that research was not brought to your attention by either Dr. Jessen nor Dr. Mitchell; is that correct?
John Rizzo: I don't recall, frankly, anyone bringing it to my attention.
Dror Ladin: Okay. Later on Page 6, it says that, "There was little incentive or time to find contrary evidence."
John Rizzo: Sorry. I thought we had left that, sorry.
Dror Ladin: Sorry. It is the second to the last paragraph on that page.
John Rizzo: Let's see. Yes, I see it. Right.
Dror Ladin: 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."
John Rizzo: Right.
Dror Ladin: Do you stand by that assessment?
John Rizzo: 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.
Dror Ladin: And as to the first sentence, sitting here today, do you disagree with that?
John Rizzo: Well, I disagree with, that there was little time to find contrary evidence. I would, I take issue with the idea of little incentive.
Dror Ladin: Okay. And what specifically do you take issue with?
John Rizzo: Well, the word, incentive. As I say, I don't recall using that term when I was talking to the reporter.
Dror Ladin: Okay.
John Rizzo: 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.
Dror Ladin: 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?
John Rizzo: This detainee, being Abu Zubaydah.
Dror Ladin: Abu Zubaydah, yes.
John Rizzo: Yes.
Dror Ladin: And there were experts who would employ those resistance techniques on Abu Zubaydah?
John Rizzo: Yes.
Dror Ladin: And would you say there was a lot of pressure to let these experts do what they said they could do?
John Rizzo: 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.
Dror Ladin: Not what they wanted to do. But what they said they could do. They said they could figure out if he was withholding information.
John Rizzo: Yes, no, no, I mean, that was important to find those things out, sure.
Dror Ladin: 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.
John Rizzo: 242. Oh, you talking about Senator McCain?
Dror Ladin: Yes. Well, you say you couldn't get his terse verdict to Porter, it is all torture, out of your head.
John Rizzo: Yes.
Dror Ladin: Why is that?
John Rizzo: 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.
Dror Ladin: And part of that was because he had actually been tortured, right?
John Rizzo: Right.
Dror Ladin: Did you consult anyone else who had actually been tortured when you were evaluating the techniques?
Bob Bennett: What, you imply that he consulted with McCain?
Dror Ladin: Sorry. That is a good clarification. Did you consult with anyone who had been tortured when you evaluated the techniques?
John Rizzo: 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.
Dror Ladin: And while he told you that, some version of the CIA's EIT program still existed; is that correct?
John Rizzo: Yes.
Dror Ladin: 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?
Jim Smith: Objection.
John Rizzo: No.
Dror Ladin: 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?
John Rizzo: Not that I'm aware, no.
Dror Ladin: Okay. As the years have passed, do you think that mistakes were made in approving the EITs?
John Rizzo: Well, I think mistakes were made in the program.
Dror Ladin: And what are those mistakes?
John Rizzo: 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.
Dror Ladin: I believe when you talk about abuses, you are also referring to what happened to Mr. Rahman; is that right?
John Rizzo: Sure, yes.
Dror Ladin: You've described isolation and freezing temperature as torture?
John Rizzo: Isolation, no. I mean, freezing temperature, it could be. It could be considered torture.
Dror Ladin: Just let's have this marked as Exhibit 58. (Exhibit Number 58 marked for identification.) 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?
John Rizzo: Sorry, I haven't seen this. Let me look at this.
Dror Ladin: Sure.
John Rizzo: Okay. So, what part of this?
Dror Ladin: So, just that second and third paragraph.
John Rizzo: 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.
Dror Ladin: Do you stand by that as to long periods of isolation in darkness?
John Rizzo: It could be considered torture.
Dror Ladin: Would you consider it torture?
Jim Smith: Objection.
John Rizzo: 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.
Dror Ladin: Well, what would your lay assessment be?
John Rizzo: Well, the third sentence, the third, fourth paragraph, quotes me as saying, "So those were clearly abuses."
Dror Ladin: It does. And then it also says, "I would characterize them as torture."
John Rizzo: Yes.
Dror Ladin: I just want to see whether you stand by that.
John Rizzo: I mean, yes, I could, I would live with that, sure.
Dror Ladin: Okay. Now, you are aware that the President of the United States has said that he believes torture works?
John Rizzo: Yes.
Bob Bennett: Which president?
Dror Ladin: The current one, President Donald Trump. Are you just trying to make me say that?
Bob Bennett: Yes, yes. That is precisely what I was trying to do.
Dror Ladin: We still find that hard to say.
Bob Bennett: You just got tight and you started to sweat.
Dror Ladin: I know.
John Rizzo: Okay, can we get going here.
Dror Ladin: Absolutely. We are almost done.
Bob Bennett: You are almost finished, right?
Dror Ladin: Absolutely. So, President Trump has used the word torture in a positive way, hasn't he?
Bob Bennett: Could you repeat the question?
Dror Ladin: President torture president torture. Sorry, we are almost done. We are almost done.
Jim 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.
Dror Ladin: We can have this conversation later.
Jim Smith: Let's have it right now, so I can get some time with the witness.
Dror Ladin: Okay. Would you allow me to finish? I guarantee it will be quicker.
Jim 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?
Dror Ladin: Well, if you will allow me to finish, we will find out.
Bob Bennett: All right. Let's go.
Dror Ladin: So, President Trump has said that he believes torture works.
John Rizzo: I read that, yes.
Dror Ladin: Have you ever spoken with President Trump about torture?
John Rizzo: I have not.
Dror Ladin: Okay. Do you think it is dangerous when the President of the United States says that torture works?
Bob Bennett: I object to that. And I'm going to instruct him not to answer that.
Dror Ladin: Based on what?
Bob Bennett: He is in enough difficulty without what is the point of it? I mean
Dror Ladin: Okay.
Bob Bennett: Go ahead, if you want to answer it, if you can. I mean
John Rizzo: I'm sorry, repeat the question.
Bob Bennett: Do you think it is dangerous that the President Trump
Dror Ladin: Has endorsed the use of torture?
Jim Smith: Objection.
John Rizzo: Do I answer?
Bob Bennett: Do you want to answer?
John Rizzo: I wouldn't call it dangerous. I would say foolish.
Dror Ladin: Why is it foolish?
John Rizzo: Well, I just, in my view, it doesn't, it doesn't, it doesn't do justice to a complicated issue.
Dror Ladin: Okay. All right. I think, I think I am done.
Bob Bennett: Your turn. You have 43 minutes.
Jim Smith: Who is counting?
Bob Bennett: Me.
Jim Smith: Okay.
Bob Bennett: I don't have that authority, but I do appreciate it if you
Jim Smith: I will move quickly. EXAMINATION BY SMITH:
Dror Ladin: 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.)
Jim Smith: Do you have that document before you, sir?
John Rizzo: I think so.
Jim Smith: And is that the declaration that you executed on January 23, 2017?
John Rizzo: Yes.
Jim Smith: Okay. And, the exhibits that are attached, are they the exhibits that are referenced in your declaration and now attached thereto?
John Rizzo: Yes.
Jim Smith: Okay. And, I think you testified previously that you, along with the assistance of your counsel, prepared this declaration?
John Rizzo: That's correct.
Jim Smith: Have you ever met me before today?
John Rizzo: No.
Jim Smith: Did you even know I existed before today?
John Rizzo: No.
Jim Smith: Had you talked to any of the lawyers for Drs. Jessen and Mitchell before today
John Rizzo: No.
Jim Smith: about the particulars of the lawsuit? Or about anything for that matter?
John Rizzo: I never talked to you folks about anything.
Jim Smith: Okay. During the lunch hour
John Rizzo: 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
Jim Smith: But nothing about this lawsuit?
John Rizzo: Right.
Jim Smith: 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. Now, let me stop and ask Mr. Lustberg, did I accurately set forth the stipulation?
Lawrence Lustberg: Yes, you did.
Jim Smith: 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.
John Rizzo: Okay. And you want me to look at what?
Jim Smith: Page 24, Paragraph 22.
John Rizzo: Yes, my declaration. Right, I see it.
Jim Smith: 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?
John Rizzo: I do.
Jim Smith: Now, sir, is it true that Drs. Mitchell and Jessen had no role in determining the legality of the techniques?
John Rizzo: That is true.
Jim Smith: Okay. And you know that they are not lawyers, right?
John Rizzo: I know that, yes.
Jim Smith: 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?
John Rizzo: Yes, members from the CIA, sure. CIA people.
Jim Smith: 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?
John Rizzo: To my knowledge, they did not.
Jim Smith: Okay. So Drs. Jessen and Mitchell weren't lobbying for the OLC to reach a particular conclusion, right?
John Rizzo: No, no.
Jim Smith: 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?
John Rizzo: Yes.
Jim Smith: And I take it your testimony about the factual basis for Paragraph 31 wouldn't change if I asked you any questions about that.
John Rizzo: That's correct, that's correct.
Jim Smith: 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?
John Rizzo: I remember that, yes.
Jim Smith: 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?
John Rizzo: Yes.
Jim Smith: Tell us what the JPRA is?
John Rizzo: 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.
Jim Smith: And, what was the source of your knowledge that the JPRA concluded no long-term psychological effects resulted from the use of the EITs
John Rizzo: My recollection is
Jim Smith: as it appears in your declaration?
John Rizzo: 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.
Jim Smith: And Drs. Mitchell and Jessen were not part of the JPRA, were they?
John Rizzo: Not to my knowledge, no.
Jim Smith: Let me show you what we are going to mark as the next exhibit in the case. 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.) Do you have 59 before you, sir?
John Rizzo: This is 59.
Jim Smith: It is the document
John Rizzo: Yes, I do.
Jim Smith: You have it in your hands?
John Rizzo: Yes.
Jim Smith: 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?
John Rizzo: It does.
Jim Smith: 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?
John Rizzo: Yes.
Jim Smith: I want to direct your attention to the third paragraph of the cable. Do you see it there?
John Rizzo: Yes.
Jim Smith: And I want to go about five lines down, the sentence that starts with, "In an effort to help." Do you see that?
John Rizzo: Yes.
Jim Smith: 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?
John Rizzo: Yes.
Jim Smith: Okay. 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?
Dror Ladin: I'm not sure.
Jim Smith: Let me ask the government.
Andrew Warden: On the record, I don't know what this, I don't know what is underneath the redaction.
Jim 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.
Andrew Warden: Yes, if their names were as stated in the document.
Jim Smith: Correct.
Andrew Warden: Yes.
Jim 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?
Dror 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.
Andrew Warden: If what was underneath those two redactions were either Dr. Mitchell's name, code name, or another identifier, we would have substituted it.
Jim Smith: Okay.
Andrew Warden: If that is not there then what is under the black is something other than those terms.
Jim 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. 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?
John Rizzo: 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.
Jim Smith: 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?
John Rizzo: No, to the best of my recollection the only SERE psychologists I knew that were providing advice were Drs. Mitchell and Jessen.
Jim Smith: 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?
John Rizzo: No. Not specifically.
Jim Smith: Okay. What about generally?
John Rizzo: You know, I did probably know at some point. I just can't remember now.
Jim Smith: 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.
John Rizzo: I am there.
Jim Smith: 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?
John Rizzo: I do.
Jim Smith: What is the source of your information for Paragraph Number 48?
John Rizzo: 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.
Jim Smith: 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?
John Rizzo: Correct.
Jim Smith: Okay. And mock burials was the one that was removed?
John Rizzo: That's correct.
Jim Smith: Okay. Now I want to ask you about high value detainees. You mentioned high value detainees in your testimony. Do you recall that?
John Rizzo: Yes.
Jim Smith: And do you know, there were other types of detainees, right?
John Rizzo: Right.
Jim Smith: There were medium value detainees, and low value detainees, right?
John Rizzo: Yes.
Jim Smith: 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?
John Rizzo: I'm sure we did. I don't recall that I did myself, but I'm sure lawyers, my lawyers at CTC did.
Jim Smith: Okay. Now I want to focus in on Mitchell and Jessen. Were Mitchell and Jessen involved with high value detainees?
John Rizzo: Yes.
Jim Smith: Do you know if they had any role other than with respect to high value detainees?
John Rizzo: No. My understanding was that they were brought on and they were, and they were used exclusively on high value detainees.
Jim Smith: 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.
John Rizzo: 17.
Jim Smith: 17.
John Rizzo: Jim, if you could describe it, I could find it.
Jim Smith: 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.
Brooks Hanner: It is Exhibit C to the declaration as well.
Jim Smith: It was marked during your testimony today as Exhibit 17, so I want to be consistent.
John Rizzo: Okay. All right.
Jim Smith: Do you have it there?
John Rizzo: I've used the one as my exhibit. It starts
Jim Smith: Okay.
John Rizzo: unclassified for public release.
Jim Smith: Okay. Sometime in the summer of 2002, you were presented with this document, were you not?
John Rizzo: Yes.
Jim Smith: And can you fix an approximate date when you were presented with this document?
John Rizzo: I, it, you know, it is hard to tell with the redactions whether I was presented with it.
Jim Smith: Just give me your best estimate.
John Rizzo: 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.
Jim Smith: So, Mr. Rizzo, Mr. Bennett is counting my minutes, and I see that he has signaled to me that I have 27 minutes left.
John Rizzo: If you need to go over a little bit
Jim Smith: You don't want to make that concession.
Bob Bennett: You say that to a lawyer, you are out of your mind.
Jim Smith: Mr. Rizzo, stay with me on this.
John Rizzo: Okay.
Jim Smith: You were presented this memo in connection with Abu Zubaydah, correct?
John Rizzo: Yes.
Jim Smith: And Abu Zubaydah was what was his category of detainee?
John Rizzo: He was a high value detainee.
Jim Smith: And these, these 12 techniques were related to what kind of detainees?
John Rizzo: High value detainees.
Jim Smith: 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?
John Rizzo: That's correct.
Jim Smith: 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?
John Rizzo: Yes, yes.
Jim Smith: And you ultimately got that Bybee memo, right?
John Rizzo: I did.
Jim Smith: And then thereafter, the, these techniques were expanded to be used on other high value detainees; is that correct?
John Rizzo: Correct.
Jim Smith: 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?
John Rizzo: No.
Jim Smith: Okay.
John Rizzo: I should note that Number 12 was a mock burial. That
Jim Smith: 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.
John Rizzo: Okay.
Jim Smith: And I want to talk about process. Okay.
Bob Bennett: What is 38?
Jim 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. Do you have that exhibit before you?
John Rizzo: I'm looking. Is this the January '03?
Brooks Hanner: Yes, it is Exhibit N to your declaration.
Bob Bennett: N.
John Rizzo: Okay, I have that.
Jim Smith: And you are familiar with this document.
John Rizzo: Yes.
Jim Smith: And the reason you are familiar with it in your capacity as Counsel for the CIA during the time in question?
John Rizzo: Yes.
Jim Smith: 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?
John Rizzo: I think, yes, I think that is yes.
Jim Smith: Can you tell me what you meant by that?
John Rizzo: 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.
Jim Smith: 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?
John Rizzo: I would have said thank you very much, and that would have been the end of that. We wouldn't be sitting here.
Jim Smith: Who was the architect then, them or you?
John Rizzo: Well, I think I referred to myself as the CIA's legal architect. Obviously the Justice Department is the ultimate legal arbiter.
Jim Smith: 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?
John Rizzo: Correct.
Jim Smith: Were these procedures actually being followed prior to the preparation of Exhibit Number 38?
John Rizzo: Yes.
Jim Smith: Okay.
John Rizzo: Yes.
Jim Smith: But someone made the decision to memorialize them in a document?
John Rizzo: Yes, that's correct.
Jim Smith: Who made that decision?
John Rizzo: I believe actually it was made by January 2003, we did have a new General Counsel, Mr. Moller.
Jim Smith: Okay.
John Rizzo: 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.
Jim Smith: I see. So, it wasn't Dr. Mitchell who made this decision?
John Rizzo: No.
Jim Smith: I see. So, let's go to the second page of Exhibit Number 38. Do you see where it talks about permissible interrogation techniques?
John Rizzo: Right.
Jim Smith: 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?
John Rizzo: Yes.
Jim Smith: Was Dr. Mitchell part of this approval process?
John Rizzo: The approval process for the
Jim Smith: 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?
John Rizzo: I do.
Jim Smith: So, headquarters had to approve the techniques, right?
John Rizzo: That's correct.
Jim Smith: Okay. Dr. Mitchell didn't approve the techniques, right?
John Rizzo: No.
Jim Smith: Dr. Jessen didn't approve the techniques, right?
John Rizzo: No.
Jim Smith: Okay. And then if you read on, it says what the permissible techniques are. Do you see that?
John Rizzo: I see that.
Jim Smith: Now, who decided what the standard techniques were that were permissible within the meaning of this memo?
John Rizzo: Well, CTC did.
Jim Smith: Headquarters did, right?
John Rizzo: Headquarters, CTC.
Jim Smith: Correct. Not Dr. Mitchell, right?
John Rizzo: No, CTC.
Jim Smith: 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?
John Rizzo: Staff officers in the Counter Terrorism Center.
Jim Smith: And so the record is crystal clear, not Dr. Mitchell, right?
John Rizzo: Correct.
Jim Smith: And not Dr. Jessen?
John Rizzo: That's correct.
Jim Smith: 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?
John Rizzo: Right.
Jim Smith: Who determined that these techniques were the techniques that would be used as standard techniques? Is this headquarters again?
John Rizzo: It was headquarters. It wasn't me. But it was headquarters, yes.
Jim Smith: And who from headquarters can you tell me was involved in this decision-making process?
John Rizzo: Well again, it would be CTC officers and management.
Jim Smith: Not Dr. Mitchell, correct?
John Rizzo: Not to my knowledge.
Jim Smith: And not Dr. Jessen, right?
John Rizzo: That's correct.
Jim Smith: Okay. Now, reading on, it makes reference to enhanced techniques. Do you see that?
John Rizzo: I do.
Jim Smith: And then you will see that there are a series of enhanced techniques that are identified in here, right?
John Rizzo: Correct.
Jim Smith: 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?
John Rizzo: I do.
Jim Smith: Who put this process in place?
John Rizzo: Again, it would be CTC officers and management.
Jim Smith: Correct. Not Dr. Jessen, right?
John Rizzo: No.
Jim Smith: Who would decide which medical doctor would participate in the enhanced interrogations? Headquarters?
John Rizzo: Headquarters, yes.
Jim Smith: And would headquarters also decide which psychological doctor, whether it be a psychiatrist or a psychologist, would participate?
John Rizzo: That is correct.
Jim Smith: 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?
John Rizzo: That is fair to say, yes.
Jim Smith: 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?
John Rizzo: Yes, if you could direct me.
Jim Smith: Sure. Go to Paragraph 2.
John Rizzo: Okay.
Jim Smith: And just read it to yourself. Have you read it?
John Rizzo: Yes.
Jim Smith: And again this procedure was determined by headquarters, right?
John Rizzo: That's correct.
Jim Smith: And if you look at interrogation personnel in Paragraph 3, all done by headquarters. Right?
John Rizzo: That's correct.
Jim Smith: All controlled by headquarters, correct?
John Rizzo: Correct.
Jim Smith: 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?
John Rizzo: Correct.
Jim Smith: 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?
John Rizzo: Correct.
Jim Smith: 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?
John Rizzo: That's correct.
Jim Smith: 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?
John Rizzo: That's correct.
Jim Smith: And it was always that way during the period of time 2002, whenever this started, right up through the end of 2004. Correct?
John Rizzo: To the end of 2004, yes.
Jim Smith: Okay. In fairness
Bob Bennett: You know
Jim Smith: I will stop the in fairness.
Bob Bennett: Yes.
Jim Smith: It is true that Drs. Mitchell and Jessen weren't the architect of this program at all, weren't they?
John Rizzo: No, it was CTC. It was an agency program, the CTC program.
Jim Smith: The agency directed every facet of it along the way; isn't that right?
John Rizzo: Yes.
Jim Smith: 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?
John Rizzo: You mean at the agency? Or, or
Jim Smith: Do you know if waterboarding was used during World War II?
John Rizzo: Apparently some forms of it were, yes.
Jim Smith: Okay. Do you know if these other techniques have been around for decades?
John Rizzo: I understand that a number of them have been, yes.
Jim Smith: Okay. Do you know which ones weren't?
John Rizzo: No. No.
Jim Smith: Okay. Go back to Exhibit Number 45. There is a couple of other paragraphs I just want to clean up.
John Rizzo: What is 45?
Jim Smith: Yes.
Brooks Hanner: It is the declaration.
Bob Bennett: Of his declaration?
Jim Smith: Yes, that is 45. Thank you, Mr. Bennett. I am working this clock hard, I want to report to you.
Bob Bennett: I appreciate it very much.
Jim Smith: 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?
John Rizzo: Yes.
Jim Smith: By way of background, Mr. Rahman died while in captivity in a black cell, right?
John Rizzo: At Cobalt, yes.
Jim Smith: Okay. And are aware that his estate is a plaintiff in this action?
John Rizzo: I guess I know that, yes.
Jim Smith: 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?
John Rizzo: Yes.
Jim Smith: And in the course of learning about those facts and circumstances, is that when you learned that he was not a high value detainee?
John Rizzo: Yes.
Jim Smith: Okay. And is that the basis for the factual allegation that appears in Paragraph 69?
John Rizzo: Yes.
Jim Smith: And, would the same be true with respect to Paragraph 70 which states, "Rahman was not part of the EIT program"?
John Rizzo: That's correct.
Jim Smith: Okay. You learned that as a result of the inquiry that was done by you and others resulting from Rahman's death?
John Rizzo: Correct.
Jim Smith: 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?
John Rizzo: I do.
Jim Smith: 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?
John Rizzo: I will call it that.
Jim Smith: 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?
John Rizzo: I do.
Jim Smith: Can you tell us why you said that?
John Rizzo: 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.
Jim Smith: And did you ever come to understand why none of you were interviewed?
John Rizzo: 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.
Jim Smith: 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?
John Rizzo: Yes.
Jim Smith: 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?
John Rizzo: That's correct, correct.
Jim Smith: Okay. Let's change subject matters. You were asked questions about learned helplessness. Do you remember that?
John Rizzo: Yes.
Jim Smith: Turn, if you would, to Paragraph 18 of Exhibit Number 46.
John Rizzo: 46 is oh, here it is. I got it.
Jim Smith: Yes, it is the same document I'm sorry, I said 46. I meant 45. Forgive me.
John Rizzo: Oh, my declaration. Okay. All right. I'm looking at what paragraph?
Jim Smith: Paragraph 18, which appears on Page 4. In that paragraph you talk about learned helplessness. Do you see that?
John Rizzo: Right. Right.
Jim Smith: And if I'm reading it correctly, you attribute that theory to someone other than Drs. Mitchell and Jessen?
John Rizzo: That's right.
Jim Smith: Okay. Tell me what you meant by that.
John Rizzo: 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.
Jim Smith: Okay. And do you remember what you were told about that theory by that doctor whose name you can't remember?
John Rizzo: 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.
Jim Smith: Turn if you would to what has been marked previously as Exhibit 44.
John Rizzo: 44.
Jim Smith: Yes.
John Rizzo: Again, that is what? So I can
Jim Smith: 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.
Brooks Hanner: Here you go.
John Rizzo: Okay, I've got it.
Jim Smith: Now, you were asked a number of questions about this document. Do you remember?
John Rizzo: I do, yes.
Jim Smith: Did you ever see this document before today?
John Rizzo: I have no idea whether I saw it or not. I mean, it is virtually unrecognizable.
Jim Smith: 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?
John Rizzo: Yes, that's correct.
Jim Smith: Okay. And you don't know the author of the document?
John Rizzo: No.
Jim Smith: You don't know the reason the document was created?
John Rizzo: No.
Jim Smith: You have no idea if the information that appears in the document is accurate?
John Rizzo: No. Without any
Jim Smith: You are not saying it is inaccurate, but you can't say that it is?
John Rizzo: No. That's correct.
Jim Smith: Okay. You have no idea of the circumstances under which this document was created?
John Rizzo: Correct.
Jim Smith: 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?
John Rizzo: Yes.
Jim Smith: And, reference is made in this document to this individual undergoing EITs, right?
John Rizzo: Right.
Jim Smith: And you don't know if that happened, correct?
John Rizzo: Right. Yes.
Jim Smith: If it did, you don't know why, correct?
John Rizzo: Correct.
Jim Smith: Okay. And the same would be true if you turned to Bates page 1567.
John Rizzo: Yes, yes. The same.
Jim Smith: 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?
John Rizzo: Yes. That came to my attention. That happened from time to time.
Jim Smith: Okay. And were those, the people who did that, they were the people responsible for running the black sites?
John Rizzo: 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.
Jim Smith: Okay. So these were prisons where medium value and low value detainees were kept?
John Rizzo: Correct.
Jim Smith: And there were instances where EITs were applied to these detainees, but in direct violation of CIA orders?
John Rizzo: Yes, certainly unauthorized techniques, yes.
Jim Smith: And isn't it true that Dr. Mitchell and Dr. Jessen had absolutely nothing to do with that?
John Rizzo: Not as far as I know.
Jim Smith: Okay. Did you ever come across any evidence that they even knew about these actions being done, these unauthorized actions?
John Rizzo: I don't recall ever hearing that, no.
Jim Smith: Okay. Turn, if you would, to what was previously marked as Exhibit Number 35. There is three minutes left on the disk, Mr. Rizzo.
Bob Bennett: Well, just remember, Abraham Lincoln's Gettysburg address was three minutes. So, if he can do it, you can.
Jim Smith: Thank you for reminding me.
John Rizzo: What is 35 again?
Jim Smith: Exhibit 35 is a memo about the meeting that you had with Secretary Rice.
John Rizzo: Oh, that, yes, yes.
Jim Smith: Here is what I want to ask you about. Do you remember that meeting?
John Rizzo: Oh yes, vividly.
Jim Smith: Do you remember if Dr. Mitchell at that meeting said to Secretary Rice that he didn't believe in nudity?
John Rizzo: That he, Dr. Mitchell, didn't believe in it?
Jim Smith: He did not believe in it, wanted it to stop?
John Rizzo: I don't remember that, no.
Jim Smith: 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?
John Rizzo: No, I just don't remember it, one way or the other.
Jim Smith: Okay.
Bob Bennett: Any kind of nudity at all, Doctor?
Jim Smith: Not by detainees in connection to the action brought by the ACLU. Do you know, Mr. Rizzo, if the guards determined how long the prisoners would remain awake at the prison?
John Rizzo: That the guards would determine
Jim Smith: It was the guards who made that determination?
John Rizzo: I don't believe they did. No.
Jim Smith: 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.) 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.
Jim Smith: 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?
John Rizzo: Yes.
Jim Smith: And the program we are talking about the is enhanced interrogation techniques that were used for high value detainees?
John Rizzo: Correct.
Jim Smith: Okay. Now, who participated in the decision-making process with respect to those changes?
John Rizzo: Well, I participated.
Jim Smith: Yes.
John Rizzo: 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.
Jim Smith: Okay. And, how many times did you engage in that effort? Was it a periodic review?
John Rizzo: 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.
Jim Smith: 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?
John Rizzo: No, that is correct. I don't recall actually talking to them about this.
Jim Smith: You didn't even confer with them?
John Rizzo: I don't recall. I do remember talking to CTC people, yes.
Jim Smith: Sure. That would be Mr. Rodriguez and his staff?
John Rizzo: And the, and the new head of CTC at the time.
Jim Smith: Okay. And then, finally, you said that there was a meeting that you had with Mr. Chertoff. Do you remember that?
John Rizzo: Yes.
Jim Smith: And in the course of that meeting, you had raised the subject of advanced immunity, right?
John Rizzo: Right.
Jim Smith: 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.
John Rizzo: Yes.
Jim Smith: How many times did you have that discussion with him?
John Rizzo: Once.
Jim Smith: Did you ever have the subject matter of that discussion with anyone else from the Department of Justice?
John Rizzo: No. I mean, Chertoff shot it down quite conclusively, so I just let it go.
Jim Smith: So, it came up one time, and it never came up again?
John Rizzo: Yes, and it was my idea only.
Jim Smith: It was your idea only. Okay. We have no further questions of the witness thank you Mr. Rizzo.
Dror Ladin: Can I just ask one final question?
Bob Bennett: Oh, yes, sure. I didn't know I was a judge, but go ahead.
Dror Ladin: In a way you are. So, you testified earlier that you did not personally speak with the defendants' lawyers crafting your declaration; is that right?
John Rizzo: That's correct.
Dror Ladin: But your declaration uses as exhibits documents that were produced as part of this litigation; is that right?
John Rizzo: Well, they were produced they were given to me by my counsel. I assume they came out of the litigation.
Dror Ladin: 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?
John Rizzo: No. I mean, I relied on the guidance from my attorneys.
Dror Ladin: Okay. So you don't know whether they were consulted?
John Rizzo: No, I don't.
Dror Ladin: Okay. That is all.
Bob Bennett: I very much appreciate.
THE VIDEOGRAPHER: This concludes the video deposition of John Rizzo. The time now is 3:04 p.m.