The Senate Torture Report

by Jens David Ohlin

At long last, the Senate Select Committee on Intelligence has released the executive “summary” of its report into torture conducted by the CIA. The report is available here.

Here are some first reactions.

The nature and conditions of the interrogations are indeed horrendous. The report specifically concludes that the CIA interrogations were harsher than previously recognized and the report’s allegations certainly back up this finding. Not only did CIA officers use waterboarding more often than was generally known, but other techniques were brutal. I found it shocking that one detainee was shackled to the floor of a cold facility for so long that he died of hypothermia. The report describes the COBALT black site as a “dungeon.”

Some detainees were subject to “rectal rehydration or rectal feeding without documented medical necessity.” The report is hedging a bit by including the phrase “documented.” If the procedures were medically necessary that’s one thing. But if they were not necessary and performed without the consent of the detainee, then they constituted an assault and arguably a sexual assault.

Parts of the report could be used as an apology for the Office of the Legal Counsel in the Justice Department, which authored the torture memos. The report focuses on the fact that the CIA misled the White House and other executive agencies over the nature of the interrogations and the usefulness of the intelligence gleaned from these sessions. The OLC argued that the necessity defense could exculpate CIA officers accused of unlawfully committing torture because the torture was “necessary to save lives.” According to the Senate report, the torture program saved no lives whatsoever, so the OLC argument on necessity was essentially based on a lie. But the report seems to fault the CIA for this, since the OLC opinion was based on the information it received from the CIA. Although clearly the CIA should be criticized if they provided inaccurate information, the report makes it sound as if the OLC was duped by the CIA — which I find highly unlikely. In any event, there are plenty of problems with the OLC’s legal work even if you assume (which I don’t) that torture can yield actionable and reliable intelligence.

Finally, the report documents the use of trained psychologists who were called in to design and oversee aspects of the interrogation program. There has been a lot of scrutiny in the psychology profession over whether this type of work was appropriate for psychologists. The report documents that the design was based on the concept of “learned helplessness” or the idea that detainees would eventually become so compliant out of a sense of helplessness that they would start assisting their interrogators. This is a fiction and a fanciful one at that. It strikes me as pseudo-science (as applied to interrogational torture). The psychologists formed a corporation to provide these services to the CIA on an outsourced basis and were paid $81 million.

13 Responses

  1. And here is my JURIST essay “The Senate Torture Report and Prior Admissions”


  2. And all lawyers should know or discover that under the CAT and the Geneva law, etc. there is no necessity exception for torture or cruel, inhuman, or degrading treatment.
    The Torture Timeline(see pp. 78-85 in ) demonstrates that OLC was working with several of the actors before and after writing memos in 2002 and 2005, etc.) and that Condi Rice ran the NAS program for about a year and a half with many discussions, viewings, etc. of the tactics.
    No excuses.

  3. as documented in prior writings, death threats and the cold-cell (or variants) are also recognized as torture in judicial decisions, etc.
    The Senate Report reports “mock executions” and “threats o harm children of a detainee, threats to sexually abuse the mother of a detainee and a threat to ‘cut [a detainee’s] mother’s throat'” as well as the cold-cell

  4. Thanks for the post . It should be noted , the very assistance , in whatever form, of psychiatrists or psychologists, in such unlawful activity, violates clearly many conventions, prohibiting any medical staff, to assist and participate in any form of interrogation by national security officers in their official duty or not. exe :

    Istanbul protocol ( Manual on the Effective Investigation and Documentation of Torture and Other Cruel,
    Inhuman or Degrading Treatment or Punishments , provides as follows ( chapter II , ethics of the legal profession , article 55) provides as follows :

    “Participation in torture” includes evaluating an individual’s capacity to withstand ill-treatment; being present at, supervising or inflicting maltreatment; resusci-tating individuals for the purposes of further maltreatment or providing medical treatment immediately before, during or after torture on the instructions of those likely to be responsible for it; providing professional knowledge or individuals’ personal health information to torturers; and intentionally neglecting evidence and falsifying reports, such as autopsy reports and death certificates.52 The United Nations Principles also incorporate one of the fundamental rules of health-care ethics by emphasizing that the only ethical relationship between prisoners and health professionals is one designed to evaluate, protect and improve prisoners’ health. Thus, assessment of detainees’ health in order to facilitate punishment or torture is clearly unethical ” .


  5. Response…And all lawyers should know or discover that under the CAT and the Geneva law, etc. there is no necessity exception for torture or cruel, inhuman, or degrading treatment.

    True enough. Article 16 of the Lieber Code was still in force after the Civil War, during the so-called “Philippine Insurrection”. It had been widely recognized by many other countries as a reflection of customary law. The Congress asked the Secretary of War to court-martial Major Edwin Glenn for utilizing methods of torture (including waterboarding) to prevent future misconduct and crimes of that nature. The Code explicitly spelled-out that “necessity” is no defense:

    Military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.

  6. Re: sexual assault. Not just arguable, it is rape as torture. Here is the ICC’s elements on rape:

    “The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.”

    The invasion was committed…by taking advantage of a coercive environment.”

    Also allegations of rectal exams with excessive force:

    Also: OLC’s legal opinions, if I remember correctly, were based on the “shock the conscience” standard. Not sure how this conduct doesn’t shock the conscience. Arguing “national security” permits forced rectal feedings or hydration seems patently ridiculous.

  7. “They” are remarkably unrepentant. Some even still argue that some of the tactics identified here are not torture (leaving out the fact that cruel treatment, inhuman treatment are equally violations of jus cogens human rights and laws of war, grave breaches of the Geneva law, etc.).
    The failure of Obama to faithfully execute the laws and initiate prosecution will leave accused without a jury trial when they are arrested abroad (assuming that Obama will also refuse to extradite “them”).

  8. Interesting post thanks Jens.

  9. This process is beginning to remind me of Central America in the 70s and 80s. Security services have committed torture in the name of national security and claimed that makes them heroes. Successor governments have been reluctant to look too closely at what their predecessors have done. But in Central America, the passage of significant periods of time eventually made prosecutions possible. Are we likely to see something similar play out here?

  10. Response…$81M? How was that broken down? That’s … crime does pay.

  11. UN Human Rights Council’s Special Rapporteur on Counter Terrorism and Human Rights, Ben Emmerson, said “The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes.” See

  12. Here is an interesting and telling interview with Ben Davis
    link to interview:

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