Chapter 5, Part 2 - The Battle Lab

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Marching Orders

Discovered in a police raid in the U.K. a year before the September 11, 2001 attacks, “The Manchester Document” is a frank, fervent guide to al Qaeda's tactics and methods, but its instructions on resisting interrogations are neither novel nor especially sophisticated. “From the first moment in captivity, the brother should proudly take a firm and opposing position against the enemy and not obey orders,” the manual counsels. Stay “psychologically and mentally calm and maintain alertness and foresight.” Don't trust benevolent-seeming interrogators. Don't talk to cell mates. Don't think that revealing something will improve your situation; “The one who gives one piece of information to avoid the lashes of the whip is deluding himself because the torture would intensify.” Remember that “when I talk under torture, I do not mention unknown dates and places to the security personnel, but well known ones. When I mention dates or names, it is important to memorize them because they will ask about them again to know if I was truthful.” 1

Much less commonplace and far more detailed is the document's description of the two-tier interrogation process captives can expect to encounter:

Interrogation: Consists of a psychological warfare and intellectual combat between the intelligence agent and the suspect through questions and answers related to one or more topics. The interrogation uses all kinds of physical and psychological techniques to break the will of the suspect and lead him to a total collapse. The agency that conducts the interrogation is the government's questioning apparatus that belongs to the Ministry of Interior Affairs. The officers of that apparatus graduate from the police academy. In our country, that apparatus has no values or code of ethics. It does not hesitate to use all kinds of torture and bodily and emotional harm to obtain evidence that could incriminate the suspect.

Questioning: Questioning is similar to interrogation in that they are both forms of psychological warfare and intellectual combat. The questioning, however, is conducted by the prosecution [office of district attorney], which is under the judicial branch. That authority is (apparently) independent from the government (executive branch) and from the people's parliament (legislative branch). The prosecution officials graduate from law school and use the technique of confrontation and repeated questioning, but without torture.”2

The reader is warned that in the first interrogation session he will be blindfolded and handcuffed, but his interrogators will be friendly, urging him to confess or face painful torture. As he is questioned, his reaction is studied and “a plan is devised for dealing with the brother.” Then,

[A]nother session is held using torture in order to control the brother through fright and orders (sit down, don't sit down, face the wall, don't talk, don't raise your voice, curses and insults). The brother should not weaken, but should try to disobey the interrogator's orders or take his time executing them. If the interrogators find that the torture technique is successful, they would intensify it. However, if they find that the brother is dodging them, they would resort to psychological torture techniques.

Some interrogators may try to confuse the brother, distort his reasoning, and tangle his thoughts by throwing many questions at him at the same time and not allowing him the chance to answer them. If the brother delays his answers, he would be struck. During that torture [session], the brother is given a chance to speak, even tell a lie, in return for halting the torture. He is given a sheet of paper and asked to write whatever he wants in return for his release, for not prosecuting him, etc.3

The document goes on to list the specific torture techniques captives may face:

Torture Methods: Secret agents use two methods of torture: A) Physical torture; B) Psychological torture
A. Methods of Physical Torture:
•  Blindfolding and stripping of clothes
•  Hanging by the hands.
•  Hanging by the feet [upside down]
•  Beating with sticks and electrical wires
•  Whipping and beating with sticks and twisted rubber belts
•  Forcing the brother to stand naked for long periods of time
•  Pouring cold water on the brother's head
•  Putting out lighted cigarettes on the brother's skin
•  Shocking with an electrical current
•  Kicking and punching
•  Attacking the brother with vicious dogs
•  Making the brother sit on a stake
•  Throwing in a septic tank
•  Pulling out the nails and hair
•  Dragging
•  Tying the hands and feet from behind
•  Utilizing sharp objects, such as a pocketknife or piece of glass
•  Burning with fire
•  Sleeping on a bare marble floor without a cover and flooding the cell with salt water
•  Standing on toes and against a wall pressing with the fingers for long hours. The brother may be denied sleep, food, drink, and medicine
•  Beating on cuts and sore parts of the body
•  Giving the brother a lot of water or very watery fruits, such as watermelon, after denying him food and drink. After the brother drinks or eats the fruit, his hands and penis will be tied so the brother will not be able to urinate
•  Placing drugs and narcotics in the brother's food to weaken his will power
•  Placing the brother in a solitary confinement where the cells are made of a special kind of cement that gets extremely hot in the summer and cold in winter
•  Hitting the brother's genitals with a stick or squeezing them by hand
•  Dragging the brother over barb wires and fragments of glass and metal

B. Methods of Psychological Torture:
•  Isolating the brother socially, cutting him off from public life, placing him in solitary confinement, and denying him news and information in order to make him feel lonely
•  Forbidding calling him by name, giving the brother a number, and calling him by that number in order to defeat his morale
•  Threatening to summon his sister, mother, wife, or daughter and rape her
•  Threatening to rape the brother himself
•  Threatening to confiscate his possessions and to have him fired from his employment
•  Threatening to cause a permanent physical disability or life imprisonment
•  Offer the brother certain enticements (apartment, car, passport, scholarship, etc.)
•  Using harsh treatment, insults, and curses to defeat his morale
•  Controlling everything the brother does, even in private, whether he is awake or asleep, to convince him that they are in charge. They would force him to bow his head and look down while talking with the guards.

The list ends with this admonition:

Further, let no one think that the aforementioned techniques are fabrications of our imagination, or that we copied them from spy stories. On the contrary, these are factual incidents in the prisons of Egypt , Syria , Jordan , Saudi Arabia , and all other Arab countries.4

Where the Manchester Document instructs its reader to “ask that evidence of his torture be entered in subsequent legal proceedings,” it is not directing him to fabricate abuse claims. Written in the expectation that its recruits would be detained by one of these enemy Arab regimes, the manual anticipates torture as an inevitable fact, and simply urges captives to report the treatment they receive. Through the years, senior Bush administration officials repeatedly distorted these instructions to cast doubt on abuse claims. “These detainees are trained to lie, they're trained to say they were tortured,” Defense Secretary Donald Rumsfeld said in a June 21, 2005 interview on Fox News's “Tony Snow Show,” “and the minute we release them or the minute they get a lawyer, very frequently they'll go out and they will announce that they've been tortured.”5

Matthew Alexander 10/01/10: The Manchester Document was never widely read by members of Al Qaeda. The resistance techniques described within are nothing less than an amateur's approach to evading interrogation. Lying, alleging mistreatment, collaborating on cover stories... these are the techniques used by teenagers who conspire to steal candy from a convenience store.

***

It was the Manchester Document that former Air Force psychologist James Mitchell studied in December 2001 with future business partner John “Bruce” Jessen when they were preparing their paper proposing countermeasures to overcome al Qaeda's resistance training. 6

On January 11, 2002, a plane carrying the first 20 supposedly non-Geneva eligible enemy combatants arrived at Guantánamo. At a press briefing that afternoon in Washington, Defense Secretary Donald Rumsfeld and Joint Chiefs of Staff Chairman General Richard B. Myers described the group as “very very dangerous people.” “I mean, these are people that would gnaw hydraulic lines in the back of a C-17 to bring it down,” Myers famously added. Rumsfeld had hinted that one of the detainees had been sedated en route, and a reporter pressed for details, asking if he had in fact tried to chew through a hydraulic line. “'No, no' (laughter) ‘Hyperbole,'” the transcript records Rumsfeld's answer, and Myers echoes, “'That was hyperbole' (More laughter).”7

Neither Myers nor Rumsfeld claimed the group contained al Qaeda leaders; rather, Rumsfeld suggested that they were “people who probably reached a certain phase of interrogation” in Afghanistan and it was important to “free up openings there.” Reporters grilled them on what standard of treatment the new arrivals would receive in Guantánamo:

Q: Mr. Secretary, you said, that for the most part, the detainees will be treated in a manner consistent with the Geneva Convention. Exactly which parts, which rights, privileges of the Geneva Convention will they have, and who will decide, and when will it be decided on an ad hoc basis? And just as a follow-up, can you say if there's been any –

Rumsfeld: Well, let me work on that for a minute. That's a mouthful.

What we've said from the beginning is that these are unlawful combatants in our view, and we're detaining them. We call them detainees, not prisoners of war. We call them detainees. We have said that, you know, being the kind of a country we are, it's our intention to recognize that there are certain standards that are generally appropriate for treating people who were—are prisoners of war, which these people are not, and—in our view—but there—and, you know, to the extent that it's reasonable, we will end up using roughly that standard. And that's what we're doing. I don't—I wouldn't want to say that I know in any instance where we would deviate from that or where we might exceed it. But I'm sure we'll probably be on both sides of it modestly….

Q: But why is it important that you not consider them—in other words, why not just treat them as prisoners of war? If prisoners of war get additional rights and protections, why not just treat them that way?

Rumsfeld: That's basically what we're doing. That's what I've said. We're generally conforming to the Geneva Convention as it applies to prisoners of war. That's what that—

Q: Why not let it officially apply?

Rumsfeld: Well, first of all, we don't have to. And second, I—we're still in the very early stages of this, and we're in the process of trying to figure out the answers to all of this and how—what's the best way to do it? What's the proper way to do it? How will we feel good about having done it a certain way? And what is appropriate? And those are the kinds of things that we're going through, because, as I say, there's hundreds of these people, and more coming from the ones that are being detained by our friends.

And so we're trying to rapidly build detention areas that are appropriate, and we're trying to train people to—military people to handle hard-case detainees, and—when that isn't what they normally do when they get up in the morning. And we're just trying to get it right. 8

Over the next month, Rumsfeld's deliberately ambiguous comments were cemented as official policy. On January 18, 2002, White House Counsel Alberto Gonzales briefed President Bush on the Yoo-Delahunty memo, and Bush sanctioned its conclusions. The next day, Rumsfeld ordered the Joint Chiefs to instruct all field commanders that Taliban and al Qaeda members are “not entitled to prisoner of war status,” though they should “treat [detainees] humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneval Conventions of 1949”; the order was relayed down the line two days later.9 On January 25, Gonzales delivered his memo dismissing Secretary of State Colin Powell's objections to suspending Geneva protections, and on February 7, 2002, President Bush issued the order accepting the Yoo-Delahunty legal conclusions and echoing Rumsfeld's instructions that detainees were not entitled to the protections but that

Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.10

Mohammed al Qahtani was delivered to Guantánamo six days later. Qahtani had been captured by the Pakistani military on December 15, 2001, one of a wave of alleged militants fleeing the battle of Tora Bora in Afghanistan . The Pakistanis turned him over to U.S. forces, and on February 13, 2002 he became detainee 063 in Guantánamo's hastily-rigged Camp X-Ray . By then Navy Seabees had built more of the camp's open-air cells, eight by eight by ten foot metal-roofed cages guards would throw tarps over when it rained. Even at night, an FBI agent assigned to the base in those early days reported, “the entire camp was bathed with light”; she said she “could see light shining on the camp from her hootch.” When she toured the camp, an agent from the Army's Criminal Investigation Division told her “they were keeping the lights on both as a security measure and a sleep deprivation technique.”11 Like all detainees, Qahtani was weighed during inprocessing. The 5' 6”, 22 or 23 year-old Saudi weighed 132 pounds that day.12

Months later, another FBI agent arriving for a shift at the base was shown a film of detainee inprocessing in those early days; the agent later described the scene in an interview with the Justice Department's Inspector General:

[Redacted] recalled one portion of the video where the detainees were hooded and kneeling in what was referred to as the “pumpkin patch.” Various military personnel were yelling and screaming at the detainees while they were kneeling in the pumpkin patch. [Redacted] advised that the “pumpkin patch” refers to the manner in which the detainees are placed on the tarmac when they arrive and are removed from the aircraft. [Redacted] recalled that while one soldier was yelling at a detainee in the pumpkin patch the detainee just passed out. [Redacted] characterized the video as “hard core.” Also, [Redacted] thought at the time that it was bizarre the military was showing them this video. [Redacted] recalled that there were some military dogs in the video that were apparently used to control and disorient the detainees when they first arrived.13

The transfer to a prison camp on a tropical island thousands of miles from Central Asia and the Middle East and the treatment on arrival and in Camp X-Ray clearly had an effect. An FBI supervisor who “was in the tower when the plane landed” with the first group of detainees and who regularly returned to the base to debrief FBI interrogators reported that agents who were assigned to question Guantánamo's early arrivals told him that “many of the detainees came into the interviews shaking or visibly upset.”

The Agents often had to calm the detainees down b/c the detainees thought that there were going to be killed after entering the interview shacks. The detainees were used to a much different environment in Afghanistan or their home country. Some detainees clearly felt that they were going to be harshly treated or killed as part of being questioned. The Agents had to reassure the detainees that all they wanted to do [was] to talk to them. 14

In April 2002, a Chinese Uighur detainee who had been captured in Afghanistan and transferred to Guantánamo in January was interrogated in X-Ray's primitive, plywood interrogation rooms—not by the FBI or military interrogators, but by what the Justice Department's Inspector General identifies only as “Chinese officials.” The detainee told an FBI agent that before the session he had been “awakened at 15 minute intervals the entire night and into the next day” and that he was “exposed to low room temperatures for long periods of time and was deprived of at least one meal.” The treatment was evidently repeated with other Uighurs who were transferred to Guantánamo later that year. According to the Inspector General, “the agent stated that he understood that the treatment of the Uighur detainees was either carried out by the Chinese interrogators or was carried out by U.S. military personnel at the behest of the Chinese interrogators.”15

Forty-five years earlier, a 1956 CIA study entitled “Communist Control Techniques: An Analysis of the Methods Used by Communist State Police in the Arrest, Interrogation, and Indoctrination of Persons Regarded as “Enemies of the State” assessed the impact of post-capture anxiety and the manipulation of sleep, temperature, and diet this way:

Even in the absence of isolation, profound and uncontrolled anxiety is disorganizing…The newly arrested prisoner does not know how long he will be confined, how he will be punished, or with what he will be charged. He does know that his punishment may be anything up to death or permanent imprisonment. Many prisoners say that uncertainty is the most unbearable aspect of the whole experience….

But, if these alone are not enough to produce the desired effect, the officer in charge has other simple and highly effective ways of applying pressure. Two of the most effective of these are fatigue and lack of sleep . The constant light in the cell and the necessity of maintaining a rigid position in bed compound the effects of anxiety and nightmares in producing sleep disturbances. If these are not enough, it is easy to have the guards awaken the prisoners at intervals. This is especially effective if the prisoner is always awakened as soon as he drops off to sleep. The guards can also shorten the hours available for sleep, or deny sleep altogether. Continued loss of sleep produces clouding of consciousness and a loss of alertness, both of which impair the victim's ability to sustain isolation. It also produces profound fatigue.

Another simple and effective type of pressure is that of maintaining the temperature of the cell at a level which is either too hot or too cold for comfort. Continuous heat, at a level at which constant sweating is necessary in order to maintain body temperature, is enervating and fatigue producing. Sustained cold is uncomfortable and poorly tolerated. Yet another method of creating pressure is to reduce the food ration to the point at which the prisoner is constantly hungry. This usually involved loss of weight, which is often associated with weakness and asthenia. Furthermore, deprivation of food produces lassitude, loss of general interest and some breakdown of courage. Some people become profoundly depressed when deprived of food….

The Communists do not look upon these methods as “torture.” Undoubtedly, they use the methods which they do in order to conform, in a typical legalistic manner to overt Communist principles which demand that “no force or torture be used in extracting information from prisoners.” But these methods do, of course, constitute torture and physical coercion. All of them lead to serious disturbances of many bodily processes.” 16

The same year as that CIA study, U.S. Air Force sociologist Albert Biderman presented a paper at the New York Academy of Medicine that analyzed how communist Chinese interrogators had employed a range of such techniques to extract false confessions from U.S. airmen captured during the Korean War. In probing how these interrogators “gained compliance” from U.S. servicemen to the point that they were able to extort admissions that were in fact lies, Biderman was surprised to discover that the techniques they used were hardly novel and rarely involved physical abuse. Physical torture, Biderman found, interferes with the “teaching process” necessary to shape confessions by setting up a contest between the interrogator and the captive. “Can he endure pain beyond the point to which the interrogator will go in inflicting pain? The answer for the interrogator is all too frequently yes,” Biderman wrote in a journal article on his research the following year.

“Generally,” Biderman reported, “[physical violence] appears to have been limited to cuffs, slaps, and kicks, and sometimes merely to threats and insults.” The exception, he noted, was forced standing, which pits the detainee against himself; “Returnees who underwent long periods of standing and sitting…report no other experience could be more excruciating.” By avoiding violence—“by formal adherence,” as Biderman put it, “to twisted norms of humaneness and legality”—interrogators were able both to shape prisoner compliance in the desired direction and “gain a considerable propaganda advantage when victims who are released truthfully state that no one laid a hand on them.” 17

Biderman's paper concluded with a chart of methods Chinese interrogators used to move POWS from “complete resistance” to “defensive resistance” to “defensive compliance,” and then to “active” and “complete” compliance:

CHART 1 – COMMUNIST COERCIVE METHODS FOR ELICITING INDIVIDUALCOMPLIANCE

 

 General Method

 

Effects (Purposes?)

 

 Variants

1. Isolation Deprives Victim of all Social Support of his Ability to Resist
Develops an Intense Concern with Self
Makes Victim Dependent on Interrogator
Complete Solitary Confinement
Complete Isolation
Semi-Isolation
Group Isolation

2. Monopolization of Perception

Fixes Attention upon Immediate
Predicament; Fosters Introspection
Eliminates Stimuli Competing with those Controlled by Captor
Frustrates all Actions not Consistent with Compliance

Physical Isolation
Darkness or Bright Light
Barren Environment
Restricted Movement
Monotonous Food

3. Induced Debilitation;
Exhaustion

Weakens Mental and Physical Ability to Resist

Semi-Starvation
Exposure
Exploitation of Wounds; Induced
Illness
Sleep Deprivation
Prolonged Constraint
Prolonged Interrogation or Forced Writing
Over Exertion

4. Threats

Cultivates Anxiety and Despair

Threats of Death
Threats of Non-repatriation
Threats of Endless Isolation and
Interrogation
Vague threats
Threats Against Family
Mysterious Changes of Treatment

5. Occasional Indulgences

Provides Positive Motivation for
Compliance
Hinders Adjustment to Deprivation

Occasional Favors
Fluctuations of Interrogators' Attitudes
Promises
Rewards for Partial Compliance
Tantalizing

6. Demonstrating “Omnipotence” and “Omniscience”

Suggests Futility of Resistance

Confrontations
Pretending Cooperation Taken for Granted
Demonstrating Complete
Control over Victim's Fate

 
7. Degradation
 
Makes Costs of Resistance Appear
More Damaging to Self-Esteem than Capitulation
Reduces Prisoner to “Animal Level” Concerns

Personal Hygiene Prevented
Filthy, Infested Surroundings
Demeaning Punishments
Insults and Taunts
Denial of Privacy

8. Enforcing Trivial
Demands

Develops Habit of Compliance

Forced Writing
Enforcement of Minute Rules

It was out of these Cold War-era studies that the U.S. armed services developed their Survival, Evasion, Resistance, Escape (SERE) training programs, where American soldiers at risk of enemy capture have, for years, been trained to resist a range of pressures from insult slaps and sleep deprivation to a tightly controlled simulation of waterboarding. The SERE role-playing sessions are often constructed to test whether trainees can be coerced into signing a confession admitting to war crimes. Now, in April 2002, the U.S. military was facilitating the use of sleep deprivation and temperature manipulation by Chinese interrogators in Guantánamo's Camp X-Ray; SERE psychologist Bruce Jessen was circulating his “Exploitation Draft Plan” detailing how SERE techniques would be used on detainees held incommunicado at secret “exploitation facilities”; and James Mitchell was rushing to put the plan into practice, sending the first cables to CIA headquarters chronicling the interrogation of Abu Zubaydah at the CIA black site in Thailand.

In developing the “Exploitation Draft Plan,” Mitchell and Jessen knew they had two audiences: the CIA and the Pentagon. Their December 2001 paper on overcoming al Qaeda resistance training had reached the Joint Chiefs in February, with a recommendation from Colonel John “Randy” Moulton, commander of the military's SERE-overseeing Joint Personnel Recovery Agency, that the JPRA send a team to Guantánamo to conduct a “short course” on “basic and advanced techniques and methods" that JPRA had used in its SERE training courses. The Defense Intelligence Agency responded with an official request for support, and in early March, Jessen and JPRA instructor Joseph Witsch held a two week “ad hoc ‘crash course on interrogation' for the next crew (rotation) going to SOUTHCOM,” the military command responsible for Guantánamo. They also held a teleconference with military interrogators in Guantánamo, which they followed with a pitch on how JPRA could assist. 18

At the March training, Jessen and Witsch presented a PowerPoint presentation titled “Al Qaeda Resistance Contingency Training: Contingency Training for [redacted] Personnel Based on Recently Obtained al Qaeda Documents.” In its 2008 “Inquiry into the Treatment of Detainees in U.S. Custody,” the Senate Armed Services Committee reported,

Matthew Alexander 10/01/10: A couple of points -- first, neither of these psychologists had ever performed an interrogation. Secondly, why did the DoD and former Administration not turn to veteran interrogators? Why not consult those who had interrogated in the First Gulf War? Or those who had interrogated "hardcore" Japanese POWs during WWII? The answer, appears to lie in the prejudice that these individuals held against Arabs and Muslims.

The presentation on detainee “exploitation” described phases of exploitation and included instruction on initial capture and handling, conducting interrogations, and long-term exploitation. The exploitation presentation also included slides on “isolation and degradation,” “sensory deprivation,” “physiological pressures,” and “psychological pressures.” At SERE school, each of these terms has special meaning.

The [redacted] instructor guide describes “isolation” as “a main building block of the exploitation process” and says that it allows the captor total control over personal inputs to the captive.” With respect to degradation, the guide contains examples of the methods used by SERE instructors to take away the “personal dignity” of students at SERE school. Examples of degradation techniques used at SERE school include [redacted]. Mr. Witsch, the JPRA instructor who led the March 8, 2002 training, told the Committee that stripping could also be considered a degradation tactic.”19

In a footnote, the Committee added,

Another slide describing captor motives states: establish absolute control, induce dependence to meet needs, elicit compliance, shape cooperation….In other JPRA materials, techniques designed to achieve these goals include isolation or solitary confinement, induced physical weakness and exhaustion, degradation, conditioning, sensory deprivation, sensory overload, disruption of sleep and biorhythms, and manipulation of diet.Physical Pressures Used in Resistance Training and Against American Prisoners and Detainees.”20

On March 18, 2002, just after the training, Jessen sent an email with a vision for future trainings, where one day would “cover the basics of the SERE techniques and another three days would be devoted to ‘role play.'”21

As with the CIA, Mitchell and Jessen saw opportunity in the early chaos of Guantánamo. SOUTHCOM, whose sphere is the Americas , had little experience with the region from which Guantánamo was receiving its detainees. Few of its interrogators had a background in terrorist networks or investigations, and many were reservists who had never questioned an actual prisoner. Its own linguists “were worthless,” Major General Mike Dunlavey would say later. “They came out of school and could order coffee, but they were getting smoked by the detainees.” 22

Dunlavey was Commander of Joint Task Force 170, created on February 16, 2002—nine days after President Bush issued the Geneva Conventions directive—to run interrogation operations at Guantánamo. While he nominally reported to SOUTHCOM Commander General James Hill, Dunlavey had been installed from above, as he explained in a sworn statement in 2005:

How I became the JTF-170 Commander? I was working at the National Security Agency. On 14 February 2002, I was contacted to meet with the SECDEF. I received a joint service billet description. I met with the SECDEF on the 20 th or 21 st of February 2002, along with the Deputy SECDEF, Wolfowitz and a number of other personnel.

The SECDEF told me that DoD had accumulated a number of bad guys. He wanted to set up interrogation operations and to identify the senior Taliban and senior operatives and to obtain information on what they were going to do regarding their operations and structure.

The SECDEF said he wanted a product and he wanted intelligence now. He told me what he wanted; not how to do it.

Initially, I was told that I would answer to the SECDEF and USSOUTHCOM. I did not have to deal with USCENTCOM. Their mission had nothing to do with my mission. Everything had to go up to USSOUTHCOM then to JCS. The directions changed and I got my marching orders from the President of the United States . I was told by the SECDEF that he wanted me back in Washington DC every week to brief him. 23

In the spring and summer of 2002, Dunlavey shared the command of the camp with Brigadier General Rick Baccus, whose Joint Task Force 160, composed largely of military police units, ran detention operations. When Baccus assumed the command of JTF 160 on March 27, X-Ray had reached its maximum capacity of 300 detainees, and Baccus's troops had their hands full just policing the swelling prison population. “It was a very manpower-intensive situation,” Baccus recalled in a 2005 Frontline Interview. “Camp X-Ray didn't have any internal facilities at all—not bathrooms, no source of water…[I]f [the detainees] wanted to do the smallest thing like go to the bathroom, the MPs were required to go in, shackle them, and then move them to a Port-A-John to have them go to the bathroom and take them back again.”24 By then construction had begun on a more permanent facility, and on April 28 and 29, the population of Camp X-Ray was transferred to newly-constructed cellblocks in Camp Delta, where the open-air cells contained flush toilets, metal bed frames, and sinks with running water. Camp Delta added cellblocks through the spring and summer; by the end of June, Baccus's MPs were running a prison for 536 detainees.

Among the June arrivals was an 18 year-old Yemeni youth named Mohamed Hassan Odaini, who had been seized in a raid on a rooming house for Koranic studies students in Faisalabad , Pakistan in March. Far from a “very bad guy” or committed militant, Odaini was a serious student who was quite literally in the wrong place at the wrong time, having accepted an invitation to stay overnight at the house after joining the residents for dinner. That he was an innocent bystander was clear to his U.S. captors by the time he was shipped with 14 of the guesthouse's residents to Guantánamo. The U.S. District Court that reviewed his habeas corpus petition eight years later found that an interrogator who interviewed Odaini just after his arrival concluded that he “appeared to be telling the truth” and recommended that he “be utilized to identify individuals at house in Faisalabad ” and then he “should be considered for repatriation.” “He was told shortly after being taken into custody and upon arrival at Guantánamo Bay that he would be released within two weeks,” noted the court that finally ordered his release almost eight years later. 25

In fact, by the summer of 2002 it was clear that Guantánamo's swelling population, which now ranged in age from early teens to mid-nineties, included many who didn't belong there. As the New York Times would report two months later, “[S]ome clues were obvious. Some of the detainees were elderly or infirm. One of those was Faiz Muhammad, a genial old man with a long wispy beard whom interrogators nicknamed “Al Qaeda Claus.” Another, who was able to make the trip only after extensive medical care from Army doctors in Afghanistan , quickly became known as “Half-Dead Bob.” 26 The notion that Camp Delta's cells were filled with hardened fighters steeped in the Manchester document was undercut by the fact that many of the detainees had never been to training camps and couldn't read or write; now, supposedly, they were receiving resistance training at the camp itself. “Although many of the detainees are illiterate and have not read the manual, a JFT source said there is a segment of the detained population who were trainers in the various terrorist camps and that these trainers have either, by example or through different modes of communication, disseminated the document's principles to the larger detainee population,” an article on Joint Task Force Guantánamo's website later insisted. 27

In his press conference announcing the delivery of the first group of detainees to Guantánamo in January, Rumsfeld had suggested what role he expected the island's population to play in intelligence gathering:

Q: If these guys are so dangerous and they're so –

Rumsfeld: The implication being they're not?

Q: No, No, No.

Rumsfeld: Oh.

Q: I'm just saying, since they are, how is it that we're able to get specific information on, you know, al Qaeda leaders? In other words, they're obviously not willing to give us that kind of information. Are some of them just deciding that it's best for them to give us the information? Is there a large number of them that are willing to do the interviews?

Rumsfeld: There's several aspects to it, and one aspect is that there are Taliban who know things about al Qaeda. And they may not be as hard-core as the al Qaeda, but they may have worked in close proximity with them. They may have been functionaries for them. They may have been couriers for them. They may have been whatever. And so that's one location. Some other people just may decide that the better—you know, that—“that's enough of that, and maybe I'll just go ahead and cooperate and see if I can get myself in a better circumstance.”28

FBI agents and military HUMINT (“human intelligence”) agents had been questioning detainees separately since around the time Mohammed al Qahtani arrived at Camp X-Ray in February. In May, “Tiger Teams” were created in an effort to coordinate military and FBI interrogations; each team included an FBI agent and a “BAU” analyst from the agency's Behavioral Analysis Unit, one military HUMINT interrogator, a contract linguist, and two investigators from the military's Criminal Investigation Task Force, which like the FBI questions suspects with an eye toward building cases for prosecution. Each team interviewed two detainees a day. The FBI agents and BAU analysts were generally the most experienced members of the team, and “tiger team” interrogations followed FBI protocol, under which detainees were not issued Miranda warnings but otherwise were questioned according to the agency's Legal Handbook requirement “that no attempt be made to obtain a statement by force, threats, or promises,” and with the FBI's traditional emphasis on rapport-building.

The FBI considered these interrogations successful. But Washington was pressing Dunlavey for more “product,” and Dunlavey in turn was demanding more from military interrogators. David Becker, who was Chief of the military's Interrogation Control Element (ICE) in Guantánamo at the time, told the Senate Armed Services Committee that during the summer of 2002 Dunlavey and Lieutenant Colonel Jerald Phifer, Dunlavey's Director for Intelligence, “urged him to be more aggressive in interrogations,” and “repeatedly asked him during this period why he was not using stress positions in interrogations,” even though a Standard Operating Procedure issued later in the summer explicitly stated “DETAINEES WILL NOT BE PLACED IN STRESS POSITIONS.” Furthermore,

Mr. Becker also told the Committee that on several occasions, MG Dunlavey had advised him that the office of Deputy Secretary of Defense had called to express concern about the insufficient intelligence productions at GTMO. Mr. Becker recalled MG Dunlavey telling him after one of these calls, that the Deputy Secretary himself said that GTMO should use more aggressive techniques.29

In its investigation, the Armed Services Committee found evidence suggesting that the pressure from Washington was driven not by concerns about the quantity of intelligence being gathered so much as a desire for a particular kind of information. Becker told the Committee that military interrogators were required to ask detainees about possible links between al Qaeda and Iraq . Two years before Becker's Senate testimony, military psychiatrist Major Paul Burney described this pressure for the Army's Inspector General,

[T]his is my opinion, even though they were giving information and some of it was useful, while we were there a large part of the time we were focused on trying to establish a link between Al Qaeda and Iraq and we were not being successful in establishing a link between Al Qaeda and Iraq. The more frustrated people got in not being able to establish this link … there was more and more pressure to resort to measures that might produce more immediate results.30

Major Burney arrived in Guantánamo in June as part of a three man team from the Army's 85 th Medical Detachment Combat Stress Control Team; he and his teammates, a psychologist and a psychiatric technician, thought they had been deployed to the base to provide psychological services to U.S. servicemen working in the prison. Instead, as Burney told the Armed Services Committee,

Three of us; [redacted] [the enlisted psychiatric technician], and I, were hijacked and immediately inprocessed into Joint Task Force 170, the military intelligence command on the island. It turns out we were assigned to the interrogation element because Joint Task Force 170 had authorizations for a psychiatrist, a psychologist, and a psychiatric technician on its duty roster but nobody had been deployed to fill these positions. Nobody really knew what we were supposed to do for the unit, but at least the duty roster had its positions filled.31

There was, in fact, a plan: the three were to become JTF 170's first Behavioral Science Consultation Team, or “BSCT.” Like the FBI's BAU agents, the “biscuits,” as they came to be known, were meant to analyze detainees and give interrogators advice on approaches and strategies. Complete novices in supporting interrogations, Burney and his team were pointed to the military's Joint Personnel Recovery Agency for instruction in how SERE techniques might be used in Guantánamo interrogations, and Burney began working with top JPRA psychologists to organize a training session aimed at drawing up a wish list of potentially useful SERE techniques.

That month, an FBI agent stumbled on a scene in which a detainee was “short-shackled” in “what appeared to be a stress position on his knees.” A translator was yelling at the detainee, who was massaging his leg, while “two young soldiers” stood by, “laughing and snickering.” The agent asked the soldiers if the treatment had been authorized. As the Justice Department's Inspector General later reported, “One soldier told the agent that the activity was authorized, but the agent was not convinced and he sought out a CITF legal advisor. The two of them brought this incident to the attention of Commanding General's JAG.”

The agent and CITF legal advisor followed up with a meeting with Dunlavey's Deputy Commander. “[T]he Deputy Commander quickly lost his temper during this meeting,” both the agent and the legal advisor told the Inspector General. “The FBI agent told us that the Deputy Commander misinterpreted the agent's concern as constituting a torture investigation.” But in this first skirmish in what would become a running battle over the treatment of detainees, the agents thought they had prevailed; after the meeting, the two were told that the conduct in question was “unacceptable and required further training and supervision, but that an investigation was unnecessary.” Henceforth, “detainees would have the opportunity to be seated during FBI and CITF interviews,” they were assured, and the Defense Intelligence Agency's supervisor was also “instruct[ing] Defense HUMINT service interrogators to observe this rule.”32

***

Days later, FBI investigators in Washington , sifting through fingerprints of Guantánamo detainees, matched the fingerprint of Mohammed al Qahtani to that of a man who had been refused entry to the United States when he arrived at Orlando Airport from Dubai via London the month before the September 11 terrorist attacks. On July 15, word of the possible 9/11 connection was relayed to FBI agents in Guantánamo, who alerted the military. Attorney General John Ashcroft and President Bush were briefed as well, and word came back down from the White House that “there was no interest in prosecuting al Qahtani in a U.S. court”; David Nahmias, counsel to the Justice Department's Criminal Division, told the department's Inspector General that “someone had made a determination that ‘not one single [detainee] will see the inside of a courtroom in the United States.'”33

In Guantánamo, Qahtani was suddenly “the ticket everybody wanted,” as an FBI agent stationed there at the time put it.34 The FBI moved quickly to assert its authority to lead Qahtani's interrogation, arguing that it had discovered the link and had overall control of the 9/11 investigation. Qahtani was moved to a new cell in Camp Delta and interviewed every day for a week by FBI and CITF agents, where he first claimed he had never been to the United States, and then admitted he had traveled to Florida but insisted it was in order to buy and sell used cars. On July 27, 2002, he was transferred again, to the maximum security cell block of Camp Delta “to minimize influence and social support from other detainees.” The FBI then called on Ali Soufan, who four months earlier had questioned the wounded Abu Zubaydah in the CIA black site in Thailand and later faced down Mitchell's interrogation team over Zubaydah's treatment there. 35 Soufan “had already obtained confessions from [redacted] detainees” in Guantánamo and “was recognized by Michael E. Dunlavey as ‘a national treasure,'” one of Soufan's FBI colleagues told the Inspector General, adding that, to his credit “when the Federal Bureau of Investigation had a .400 hitter in [redacted] down here, [Dunlavey] recognized it.” DOJ OIG interviews, 1000

In late July, as Mitchell's crew was gearing up for its month-long, White-House orchestrated torture of Abu Zubaydah in Thailand , Ali Soufan interviewed Mohammed al Qahtani in Guantánamo. After that session, Soufan recommended that Qahtani “should go into some sort of isolation or segregation if the Federal Bureau of Investigation was going to have some shot of making progress with this guy,” and came up with the idea of putting him in a “non-standard arrangement in the Navy Brig.” 36 The recommendation raised concerns; as the Inspector General noted in a footnote to his 2008 report, “severe isolation of the type used on al Qahtani for interrogation purposes rather than as a disciplinary or security measure would like be considered to be coercive and contrary to FBI interviews in the United States.” Nevertheless, Soufan's request was approved up the FBI chain of command, and on August 8, 2002, Qahtani was forcibly removed from his cell and delivered by military ambulance to a specially prepared wing of the Guantánamo naval brig evidently modeled on the environment in which Jose Padilla was then being held at the naval brig in South Carolina . “There was a concerted effort to try to isolate him from any human contact with the guards,” Soufan told the Inspector General. “A protocol was designed so that [Qahtani] would not be able to see the guards' faces”; “some guards covered their faces in some fashion and other times [he] was supposed to turn away so as not to look at the guards.” 37 In a February 27, 2007 interview with the Inspector General, Qahtani himself called the Brig “the worst place I was taken to.” The IG recorded,

He said he did not know when to pray because the window was covered up and he could not tell what time of day it was. In addition, he said that he did not know the direction of Mecca . Al-Qahtani told the OIG that the entire time he was at the Brig the guards covered their faces when they dealt with him. He also said he was not allowed any recreation, and while he was allowed into the hallway outside his cell, he never saw the sun. Al-Qahtani said the lights in his cell were left on continuously for the entire time he was there, which he said was half a year. Al-Qahtani also described the Brig as very, very cold. He said he sometimes had a mattress, but if the interrogators did not like his answers, they would take things like that away. 38. Explaining Qahtani's exaggerated sense of how long his experience in the Brig lasted, Soufan told the IG, “One of the side-effects of isolating a detainee is that they lose their anchor to time or a sense of time.”

Immediately after the move, Soufan sat with Qahtani and told him “this is your place until you change your story.” Qahtani told the Inspector General that Soufan had “some sense of humanity” and that he “did not use aggression or physical violence.” He did, however, make “actual or implied threats” that the IG found troublesome:

According to Al-Qahtani, [Soufan] said things such as “you will find yourself in a difficult situation if you don't talk to me” and “if you're not going to talk now, you will talk in the future.” When asked if he took this as a “warning or a threat,” Al-Qahtani replied that it was “a little bit of both.”

Soufan and other FBI agents questioned Qahtani for a month in the naval brig. They offered to return him to Camp Delta if he would just give them “a small piece of information”; he countered that if they moved him, he would talk. They left him alone in his cell for long periods without interrogating him. In one crisis moment, Soufan had to be “tracked down at chow hall” and summoned to the brig by guards “concerned about his behavior”; he had to walk Qahtani around outdoors to calm him down. Soufan himself began to observe “strange behavior,” noting that Qahtani's “ritual washing before prayer started to turn into excessive compulsive behavior, and that “he would use his blanket to make a cocoon-like structure in his cell.” 39

Soufan's FBI supervisor told the Inspector General that “within two weeks” of learning of the possible 9/11 connection, the military decided it “wanted a piece of al-Qahtani.” Soufan himself reported that by mid-August, military interrogators were asking, “Is it soup yet?” 40 Over the previous month, senior Pentagon lawyers had written to JPRA Chief of Staff Daniel Baumgarten requesting a list of exploitation and interrogation techniques “that had been effective against Americans,” and Baumgarten sent Jim Haynes a responsive memo noting that JPRA had already been “assist[ing] in the training of interrogators/exploiters from other governmental agencies” and assuring Haynes that “[s]everal of the techniques highlighted (Atch 1) as training tools in JPRA courses, used by other SERE schools, and used historically may be effective in inducing learned helplessness and ‘breaking' the [Operation Enduring Freedom] detainees' will to resist.” The attached list of techniques included facial and abdominal slaps, walling, stress positions, use of smoke, cramped confinement, water dousing, and waterboarding. The same July 26, 2002 memo and attachments were forwarded to the CIA in support of the OLC memos sanctioning the torture of Abu Zubaydah that were completed four days later, on August 1, 2002. 41

On August 18, 2002, two and a half weeks into the Abu Zubaydah interrogation in Thailand and ten days into the FBI's sessions with Qahtani in the Guantánamo brig, the Los Angeles Times ran a story entitled “No Leaders of Al Qaeda Found at Guantanamo.” “Despite intense interrogations and investigations, U.S. authorities have yet to identify any senior Al Qaeda leaders among the nearly 600 terrorism suspects from 42 countries in U.S. military custody at Guantanamo Bay , Cuba ,” the article announced. It quoted government sources who said there were “no big fish” in custody there and the island's detainees were not “high enough in the command and control structure to help counter-terrorism experts unravel al Qaeda's tightknit cell and security systems.” “Some of these guys literally don't know the world is round,” one of the sources added. Moreover, in recent weeks three detainees had “tried to hang themselves in their cells with camp-issued ‘comfort items' such as towels and sheets, and another tried to slit his wrists with a plastic razor,” the Times reported. 42

That Los Angeles Times story appeared just after a CIA analyst had spent a week at Guantánamo conducting a survey of detainees. The analyst's top secret report, circulated in Washington a month later, mirrored the Times article's conclusion that a large number of the camp's detainees were either innocent or low-level militants who had rushed to the defense of the Taliban in Afghanistan after the October 2001 U.S. invasion. [Tim Golden and Don Van Natta, Jr., “U.S. Said to Overstate Value of Guantánamo Detainees, The New York Times , June 21, 2004 The CIA's report only confirmed what many foreign governments had been telling the United States about their own citizens in U.S. custody, and in August the subject of how to deal with the many obviously wrongfully imprisoned detainees began to dominate Secretary of State Colin Powell's morning briefings. As Powell's Chief of Staff Col. Lawrence B. Wilkerson testified in March 2010 in the habeas corpus proceeding of detainee Abel Hassan Hamad,

[I]t became apparent to me as early as August 2002, and probably earlier to other State Department personnel who were focused on these issues, that many of the prisoners detained at Guantánamo had been taken into custody without regard to whether they were truly enemy combatants, or in fact whether many of them were enemies at all. I soon realized from my conversations with military colleagues as well as foreign service officers in the field that many of the detainees were, in fact, the victims of incompetent battlefield vetting….

In fact, by late August 2002, I found that of the initial 742 detainees that had arrived at Guantánamo, the majority of them had never seen a U.S. soldier in the process of their initial detention and their captivity had not been subject to any meaningful review…. Secretary Powell was…trying to bring pressure to bear regarding a number of specific detentions because children as young as 12 or 13 and elderly as old as 92 or 93 had been shipped to Guantánamo. By that time, I also understood that the deliberate choice to send detainees to Guantánamo was an attempt to place them outside the jurisdiction of the U.S. legal system. 43

Even within Guantánamo, protests were mounting. JTF 160 Commander Rick Baccus told journalists touring the camp in August that his own uniformed officers were questioning the continuing designation of detainees as “enemy combatants” rather than “prisoners of war” entitled to Geneva protections. 44

Against this backdrop, the Pentagon was conducting a Guantánamo review of its own—not grappling with the question of how detainees might receive some due process, but rather how to wring more intelligence out of the camp. The Joint Chiefs appointed Colonel John P. Custer, the assistant Commandant of the U.S. Army Intelligence Center and School at Ft. Huachuca , Arizona to carry out the study. Custer's report, which he delivered on September 10, 2002, reinforced a growing desire at the Pentagon to replace JTF 160 and JTF 170 with a single task force whose primary mission was interrogations. He specifically recommended melding the approaches of the FBI's Behavioral Analysis Unit and the BSCTs to create conditions “conducive to extracting information by exploiting detainee's vulnerabilities.” In his report, Custer called Guantánamo “ America 's Battle Lab.” The term, and concept, stuck. Colonel Britt Mallow, the Commander of the Criminal Investigative Task Force, told the Senate Armed Services Committee,

MG Dunlavey and later MG Miller referred to GTMO as a “ Battle Lab” meaning that interrogators and other procedures there were to some degree experimental, and their lessons would benefit DOD in other places. While this was logical in terms of learning lessons, I personally objected to the implied philosophy that interrogators should experiment with untested methods, particularly those in which they were not trained.45

***

The day after Custer delivered his report, on the first anniversary of the terrorist attacks, CITF Commander Brittain Mallow met with DoD General Counsel Jim Haynes to discuss his concerns over what everyone in Guantánamo could now see was coming. After that meeting, Mallow began to take steps to separate the men and women under his command from the military's plans to use SERE techniques in interrogations, drafting a Memorandum for the Record to “Provide additional guidance to Criminal Investigative Task Force (CITF) agents regarding the use of various techniques and methods” in Guantánamo detainee interviews. Under the heading “Guidance,” Mallow wrote,

The President's 7 Feb 2002 POTUS memo states, “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principle of Geneva .” Therefore, CITF will employ interview methods or techniques that are consistent with the Geneva protections and the President's memo. These methods are designed to ensure that all information from [Detained Persons] is taken voluntarily. 46

Mallow then listed techniques and methods consistent with the President's memo and permissible for CITF agents: prolonged interviews of up to 12 hours, interrupting sleep to interview detainees early in the morning or late at night (“to catch the [detainee] when he is less guarded, not to wear [him] down into confessing”), and a variety of conventional police interrogation techniques. “Unacceptable methods” that were “not necessarily in compliance with the President's memo” and off-limits to CITF agents included threats and “discomfort,” specifically temperature manipulation, stress positions, and sensory deprivation. Mallow's draft concluded, “CITF agents will use methods and techniques that comply with the President's memo, and specifically designed to ensure all information from [detainee] is provided voluntarily.”

On September 16, 2002, six days after Custer submitted his report, Major Burney's three-man BSCT team and four Defense Intelligence Agency interrogators flew from Guantánamo to Fort Bragg for a four day training session with Joseph Witsch and Gary Percival, Bruce Jessen's replacement as senior SERE psychologist. The training mirrored one Witsch and Percival had offered CIA interrogators in June and followed the principles outlined in Jessen's April 2002 Exploitation Draft Plan. 47 In addition to guidance on such SERE techniques as walling, exposing students to cold until they shiver, and the use of phobias such as fear of spiders, the curriculum included slides suggesting the use of punishments that “might be offensive for Arab and Islamic detainees” and listing among possible resistance “countermeasures” “invasion of personal space by a female.” The presentations came with caveats, however: Burney later told both Army and Senate investigators that the instructors didn't think that the SERE techniques should be brought back to Guantánamo and “stressed time and time again that psychological investigations have proven that harsh interrogations do not work. At best it will get you information that a prisoner thinks you want to hear to make the interrogation stop, but that information is strongly likely to be false.” 48

That hesitation is reflected in post-training communications from SERE instructor Joseph Witsch. In his after-action report, Witsch cautioned his superiors at JPRA,

I highly recommend we continue to remain in an advisory role and not get directly involved in the actual operations—GTMO in particular. We have no actual experience in real world prisoner handling. The concepts we are most familiar with relate to our past enemies and we have developed our Code of Conduct based on these experiences. Without actual experience with [Designated Unlawful Combatants] we are making the assumption that procedures we use to exploit our personnel will be effective against the current detainees.

Witsch followed this a week later with a memo to the Chief of JPRA's Operational Support Office:

What do we bring to the table? We are Code of Conduct instructors with a vast amount of experience training highly intelligent, disciplined, and motivated DoD personnel to resist captivity… We base our role-play laboratories on what we know our former enemies have done to our personnel in captivity. It is based on illegal exploitation (under the rules listed in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War) or prisoners over the last 50 years….

We are out of our sphere when we begin to profess the proper ways to exploit these detainees. We are now attempting to educate lower level personnel in DoD and OGAs with concepts and principles that are somewhat foreign to them and while it all sounds good they are not in a position nor do they have the depth of knowledge in these matters to effect change and do it in reasonable safety.

The handling of [Designated Unlawful Combatants] is a screwed up mess and everyone is scrambling to unscrew the mess.” 49

But back in Guantánamo, a newly-created JTF “special projects” team was already preparing to tell Ali Soufan and the FBI to “step aside” so it could assume control of Qahtani's interrogation. 50 On September 23, 2002, an alarmed CITF agent wrote to CITF's Deputy Commander,

DoD Intelligence personnel contacted FBI [Supervisory Special Agent] in order to conduct an interview of a detainee assigned to the FBI. The DoD personnel indicated that they intend to employ the following interrogation techniques: drive the hooded detainee around the island to disorient him, disrobe him to his underwear, have an interrogator with an Egyptian accent (it is known among the detainees that Egyptians are aggressive interrogators and commonly use coercion, to include maiming)….

As a law enforcement agency, CITF is clearly prohibited from participating in these techniques and we also do not want to turn a deaf ear when we learn of these issues.51

Two days later, flush with Mitchell and Jessen's inflated claims of the success of the CIA's torture of Abu Zubaydah the month before in Thailand , the lawyers of the “War Council” flew from Washington to tour Guantánamo and the naval brig where Jose Padilla was being held in South Carolina . Jack Goldsmith, invited by Jim Haynes the night before to join the trip when “a spot opened up on the plane,” condensed the Guantánamo visit to a single paragraph in his book The Terror Presidency:

The purpose of the trip was to review the facilities for Taliban and al Qaeda detainees in U.S. military custody. On the plane I was introduced to many important legal players in the administration, including David Addington, Patrick Philbin, John Rizzo (then the number-two lawyer in the CIA, and now its acting General Counsel), Alice Fisher (now head of the Criminal Division at the Department of Justice), and several Pentagon lawyers. A little over three hours later, we landed in tropical Cuba , took a twenty-minute ferry across Guantanamo Bay , and boarded a bus for a brief ride to Camp Delta , the new detention facility. After a briefing on the operation of the camp from military officials, we walked through a detention building that held two-dozen orange jumpsuit-clad prisoners in mesh cells, each of which contained a bed, a sink, a toilet, and a copy of the Koran. Some of the detainees ignored us. Some stared at us with an empty gaze. Some looked at us with an anger that I had never before experienced. We next witnessed an ongoing interrogation, toured the camp's medical facilities, and saw the spot where construction was about to begin on a building to house military commissions. And then we took the bus and ferry trip back to the plane and, three hours after we arrived, left the island.52

In fact, as the Senate Armed Services Committee discovered in its review of the Defense Department's official trip report, DoD General Counsel Haynes and the group were briefed “on intelligence successes, failures, and problems at the JTF,” and that

MG Dunlavey held private conversations with Mr. Haynes and a few others and briefed the entire group on a number of issues including “policy constraints” affecting interrogations at the JTF. For example, MG Dunlavey told the group that JTF-170 would “like to take Koran away from some detainees—hold it as incentive” but that the issue was undergoing a policy determination by SOUTHCOM. The trip report noted that Mr. Haynes “opined that JTF-170 should have the authority in place to make those calls, per [the President's] order, adding that he “[t]hought JTF-170 would have more freedom to command.” MG Dunlavey told the Committee that he may have told the group during their visit that JTF-170 was working on a request for authority to use additional interrogation techniques.”53

***

Two days later, on the morning of September 27, 2002, an FBI Behavioral Analysis Unit agent working in Camp Delta received a call asking him to return to the FBI's Guantánamo command post immediately. “FBIHQ [redacted] etc. had issues regarding #63, surprise, surprise,” he later told the Justice Department's Inspector General. The call followed an email from the agent to headquarters referring to the “fun and games” the military had planned for Qahtani. 54 On September 30, the agent emailed again to report the military's plan involved moving Qahtani from the brig to Camp Delta briefly to see if he would cooperate and then sending him to Camp X-Ray for an open-ended phase of 20-hour interrogation sessions. The agent asked his supervisor for guidance because military intelligence agents wanted him to be part of one of the interrogation teams; he was told that “as long as there was no torture involved” he could participate and “provide FBIHQ with updates of what was happening.” 55

On October 1, 2002, the agent wrote again:

Here's the latest regarding our friend.

The most recent Interrogation Plan has been signed off on by the appropriate (all the way up to the 2 star) DOD individuals. As it presently stands, tomorrow night (10/2/2002 – Wednesday @ 2300 hours) # 063 will be picked up at the Brig (totally manacled, hooded, and gagged) for transport to Delta. After the transport, the detainee will be unhooded, allowed to look around to ensure that he is in fact at Delta. He will then be taken to one of the CTC trailers where he will be asked four (4) ‘core' questions. If he is uncooperative, as everyone believes he will be, he will then be immediately transported to a holding cell at Camp X-Ray .

Once at X-Ray, the DHS will begin the interrogation process with 2 interrogators and one of their ‘Behavioral Scientists' observing. After a 6 hour session, the DHS has another team to continue with the scenario. The lead team will then take the third 6 hour sessions (myself and [redacted] been specifically asked to observe this team from a strictly behavioral perspective). After this 18 hour period, the detainee will be allowed to rest for 4 hours before the process will begin again for a yet-to-be determined time frame.

[Redacted] and I made it very clear that we would be available for observation only for the initial time at Delta and then for the initial lead DHS team 6 hour session. After that, we will be “on call” should something positive happen. We had an hour meeting this afternoon with all DHS team personnel to get everyone up to speed on what was happening. The DHS group, including Lt. Col. [redacted] feels confident that this will do what needs to be done to obtain # 063's cooperation.

SSA [redacted] has been fully briefed of this session.

[Redacted] It is our recommendation [redacted] and myself) that should FBIHQ want to send anyone down to question # 063 concerning FBI issues, that they wait at least a week after the aforementioned DHS mission has been completed. 56

The next day, [Major] General Dunlavey sent a memo to Brigadier General Rick Baccus, commander of JTF-160, requesting support for an operation involving an interrogation plan that, he assured his counterpart, “has been reviewed by my Staff Judge Advocate and determined to be legally sufficient.” 57 That same day, BSCT Major Burney submitted a memo he had drafted in response to a request from Lieutenant Colonel Jerald Phifer, Dunlavey's Director for Intelligence, requesting SOUTHCOM approval for new interrogation authorities. Burney told the Senate Armed Services Committee that “by early October there was increasing pressure to get ‘tougher' with detainee interrogations but nobody was quite willing to define what ‘tougher' meant'; the task evidently fell to Burney, who was coached to the extent he was told that if his memo didn't contain coercive techniques it “wasn't going to go very far.” He reported that he drafted the memo in one evening, and that he had learned some of its interrogation approaches during the Fort Bragg training and made up some of them himself. 58

The memo suggested three categories of interrogation techniques be used in the interrogation booth “to develop rapport, promote cooperation, and counter resistance.” Category I included incentives and “mildly adverse approaches” such as telling detainees they would be in Guantánamo forever unless they cooperated. Category II, for “high priority” detainees “suspected of having significant information relative to the security of the United States," included stress positions, isolation of up to 30 days, deprivation of food, and back to back 20 hour interrogation sessions once a week. In Category III, “detainees that have evidenced resistance and are suspected of having significant information pertinent to national security” could be isolated without the right of visitation by treating medical professional or the Red Cross and subjected to daily 20-hour interrogations, death threats, forced nudity, and exposure to cold weather or water until they began to shiver. Not entirely comfortable with his work, Burney added this statement:

Experts in the field of interrogation indicate the most effective interrogation strategy is a rapport-building approach. Interrogation techniques that rely on physical or adverse consequences are likely to garner inaccurate information and create an increased level of resistance….There is no evidence that the level of fear or discomfort evoked by a given technique has any consistent correlation to the volume or quality of information obtained….The interrogation tools outlined could affect the short term and/or long term physical and/or mental health of the detainee. Physical and/or emotional harm from the above techniques may emerge months or years after their use. It is impossible to determine if a particular strategy will cause irreversible harm if employed….Individuals employing Category II and Category III interrogation techniques must be thoroughly trained…[and] carefully selected, to include a mental health screening (such screenings are SOP for SERE and other Special Operations personnel). 59

Lieutenant Colonel Diane Beaver, Dunlavey's Staff Judge Advocate, convened a meeting that afternoon to discuss Burney's memo. In addition to JTF-170 personnel including Burney, BSCT teammate Leso, Phifer, and David Becker, JTF-170's chief of intelligence, the meeting had an unusual guest: Jonathan Fredman, chief counsel to the CIA's Counterterrorism Center , who had flown from Washington to participate. The meeting opened with Burney and Leso reporting on the Fort Bragg training and echoing the memo's warning that fear-based approaches are “unreliable, ineffective in almost all cases.” The meeting minutes show that Phifer challenged Burney, asking, “Harsh techniques used on our service members have worked and will work on some, what about those?” Leso and Becker countered that force is risky and likely to be ineffective since the detainees “are used to seeing much more barbaric treatment.” 60 At this point, the minutes record, “a discussion about ISN 63 ensued, recalling how he has responded to certain types of deprivation and psychological stressors.” Then:

BSCT continued:

•  Psychological stressors are extremely effective (ie, sleep deprivation, withholding food, isolation, loss of time)

COL Cummings: We can't do sleep deprivation

LTC Beaver: Yes, we can – with approval

•  Disrupting the normal camp operations is vital. We need to create an environment of “controlled chaos”

LTC Beaver: We may need to curb the harsher operations while ICRC is around. It is better not to expose them to any controversial techniques. We must have the support of the DOD.

Becker: We have had many reports from Bagram about sleep deprivation being used.

LTC Beaver: True, but officially it is not happening. It is not being reported officially. The ICRC is a serious concern. They will be in and out, scrutinizing our operations, unless they are displeased and decide to protest and leave. This would draw a lot of negative attention.

COL Cummings: The new PSYOP plan has been passed up the chain

LTC Beaver: It's at J3 at SOUTHCOM

At this point, Fredman takes the floor:

Fredman: The DOJ has provided much guidance on this issue. The CIA is not held to the same rules as the military. In the past when the ICRC has made a big deal about certain detainees, the DOD has “moved” them away from the attention of the ICRC. Upon questioning from the ICRC about their whereabouts, the DOD's response has repeatedly been that the detainee merited no status under the Geneva Convention.

The CIA has employed aggressive techniques on less than a handful of suspects since 9/11.

Under the Torture Convention, torture has been prohibited by international law, but the language of the statutes is written vaguely. Severe mental and physical pain is prohibited. The mental part is explained as poorly as the physical. Severe physical pain described as anything causing permanent damage to major organs or body parts. Mental torture described as anything leading to permanent profound damage to the senses or personality. It is basically subject to perception. If the detainee dies you're doing it wrong. So far, the techniques we have addressed have not proved to produce these types of results, which in a way challenges what the BSCT paper says about not being able to prove whether these techniques will lead to permanent damage. Everything on the BSCT white paper is legal from a civilian standpoint [Any questions of severe weather or temperature conditions should be deferred to medical staff.] Any of the techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual. Medical personnel should be present to treat any possible accidents. The CIA operates without military intervention. When the CIA has wanted to use more aggressive techniques in the past, the FBI has pulled their personnel from theatre. In those rare instances, aggressive techniques have proven very helpful.

LTC Beaver: We will need documentation to protect us

Fredman: Yes, if someone dies while aggressive techniques are being used, regardless of cause of death, the backlash of attention would be detrimental. Everything must be approved and documented.

When Becker steps in to note that the FBI and CITF have indicated they will not participate in harsh techniques, Beaver insists that there is no legal reason why they can't, and that their decision is “more ethical and moral as opposed to legal.” Yet when the question of videotaping interrogations arises, the group quickly agrees that “videotapes are subject to too much scrutiny in court,” and that “videotapes of even totally legal techniques will look ugly.” Fredman resumes,

Fredman: The Torture Convention prohibits torture and cruel, inhumane and degrading treatment. The US did not sign up to the second part, because of the 8 th amendment (cruel and unusual punishment), but we did sign the part about torture. This gives us more license to use more controversial techniques.

LTC Beaver: Does SERE employ the “wet towel” technique?

Fredman: If a well-trained individual is used to perform this technique it can feel like you're drowning. The lymphatic system will react as if you're suffocating, but your body will not cease to function. It is very effective to identify phobias with them (ie, insects, snakes, claustrophobia). The level of resistance is directly related to person's experience

MAJ Burney: Whether or not significant stress occurs lies in the eyes of the beholder. The burden of proof is the big issue. It is very difficult to disprove someone else's PTSD

Fredman: These techniques need involvement from interrogators, psych, medical, legal, etc.

Becker: Would we get blanket approval or would it be case by case?

Fredman: The CIA makes the call internally on most of the types of techniques found in the BSCT paper, and this discussion. Significantly harsh techniques are approved through DOJ.

LTC Phifer: Who approves ours? The CG? COUTHCOM CG?

Fredman: Does the Geneva Convention apply? The CIA rallied for it not to.

LTC Phifer: Can we get DOJ opinion about these topics on paper?

LTC Beaver: Will it go from DOJ to DOD?

LTC Phifer: Can we get to see a CIA request to use advanced aggressive techniques?

Fredman: Yes, but we can't provide you with a copy. You will probably be able to look at it.

The meeting concludes with a brainstorming session on ways to manipulate the lives of all Guantánamo detainees to create an environment of “controlled chaos.” The list includes “let[ting] detainee rest long enough to fall asleep and wake him about every thirty minutes and tell him it's time to pray again,” and “Truth serum; even though it may not actually work, it does have a placebo effect.”61

These meeting minutes would find their way to CITF agent Blaine Thomas, who forwarded them to CITF legal advisor Sam McCahon with the note, “Sam, very interesting reading on how detainees are being treated for info.” Mark Fallon, who was copied on that note, forwarded it again to McCahon with a note of his own:

Sam:

We need to ensure seniors at OGC are aware of the [JTF]170 strategies and how it might impact CITF and Commissions. This looks like the kinds of stuff Congressional hearings are made of. Quotes from LLTC Beaver regarding things that are not being reported give the appearance of impropriety. Other comments like “It is basically subject to perception. If the detainee dies you're doing it wrong” and “Any of the techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual. Medical personnel should present to treat any possible accidents” seem to stretch beyond the bounds of legal propriety. Talk of “wet towel treatment” which results in the lymphatic gland reacting as if you are suffocating, would in my opinion, shock the conscience of any legal body looking at using the results of the interrogations or possibly even the interrogators. Someone needs to be considering how history will look back at this.62

Two days after the meeting with Feldman, Major Burney wrote to Lieutenant Colonel Louie “Morgan” Banks, the chief psychologist for JPRA, relaying JTF 170's continuing interest in “pursuing the potential use of more aversive techniques.” Burney asked Banks “where task force personnel could go to receive such training” and whether he knew “any consultants who could assist if any of these measures are eventually approved." Banks answered emphatically:

I do not envy you. I suspect I know where this is coming from. The answer is no, I do not know of anyone who could provide that training….The training that SERE instructors receive is designed to simulate that of a foreign power, and to do so in a manner that encourages resistance among the students. I do not believe that training interrogators to use what SERE instructors use would be particularly productive.63

***

Within hours of the meeting with the CIA attorney, Qahtani was taken according to plan from the naval brig to Camp Delta . There, two FBI agents joined in an unproductive two hour, four-question interview, after which Qahtani was sent, hooded and shackled in the back of an ambulance, to one of the abandoned interview shacks in Camp X-Ray . The two agents are referred to pseudonymously in the Justice Department Inspector General's description of what happened next:

Al-Qahtani was interrogated by another military interrogation team from October 3 until the early morning hours of October 4. Lyle said Al-Qahtani was “aggressively” interrogated and that the plan was to “keep him up until he broke.” Foy said he did not know if that ultimately is what happened, because he and Lyle stopped observing the process. Foy stated in an e-mail to the FBI Unit Chief and the OSC at GTMO the next morning that an FBI approach to Al-Qahtani the following week would not be worthwhile “due to the current mental/physical status of the detainee.”

Foy and Lyle returned to Camp X-Ray in the late afternoon of October to continue their observations. Lyle told the OIG that one of the interrogators, a Marine Captain, had been interrogating Al-Qahtani by yelling at him and calling him names. Lyle stated that the Captain got up on the table in the room to yell at Al-Qahtani in a more intimidating fashion, at which point he squatted over a Koran that had been provided to Al-Qahtani. This action incensed Al-Qahtani, who lunged toward the Captain and the Koran. Al-Qahtani was quickly subdued by the military guards in the room. Foy gave a similar account of this incident….

Lyle and Foy also described an incident the next day in which a guard received a signal to bring a working dog into the interrogation room where Al-Qahtani was being interrogated. Lyle said that the use of dogs as an interrogation tool was exclusively the military's idea, based on their belief that Arabs feared dogs because they viewed dogs as unclean. Lyle said that the guard handling the dog first agitated the dog outside the interrogation room, and then brought the dog into the room close to Al-Qahtani. Lyle said that the dog barked, growled, and snarled at Al-Qahtani in very close proximity to him, but was never allowed to have contact with him. Foy gave a similar account of the incident, and told the OIG that he and Lyle were not comfortable with the situation with the dog so they left the interrogation.64

Matthew Alexander 10/01/10: We continue to see this theme repeated throughout The Torture Report -- prejudice-based stereotypes influencing the interrogation techniques.
Repeatedly you ask yourself -- Where are the commanders? Where is the leadership? Where is the mature voice of reason?

Five days later, Qahtani was returned to the brig, and one of these agents reported to FBI headquarters,

Hello from GTMO,

As of 10/08/2002 (Tuesday) @ 1800 hours, DHS will discontinue their current efforts regarding # 063. Besides the sleep deprivation, they utilized loud music, bright lights, and “body placement discomfort,” all with negative results. The asked [redacted] and I to participate in an ‘after action' on this phase which we will probably do. At present, the plan is for DHS to initiate their Phase II on # 063 sometime this weekend.

The detainee is down to around 100 pounds but is still as fervent as ever. That's it for now, more to follow after the aforementioned meeting.65

According to the Armed Services Committee, another FBI agent wrote headquarters that same day “reflect[ing] upon the failed interrogation.” “I think we should consider leaving him alone, let him get healthy again, and do something ‘different'” 66

Three days later, Major General Dunlavey sent a memorandum to General Hill, Commander of SOUTHCOM, requesting formal approval to use 19 SERE-based techniques in Guantánamo interrogations. The techniques, laid out in three categories in an accompanying memo prepared by Lieutenant Colonel Phifer, were the same ones suggested in the October 2, 2002 Burney memo, with two additions from that day's brainstorming session with the CIA attorney: the use of phobias and “the use of a wet towel and dripping water to induce the misperception of suffocation.” Phifer would later tell the Senate Armed Services Committee that he was uncomfortable with the idea of using some of the techniques, but that he had been under pressure from Dunlavey to produce the memo; Dave Becker, JTF 170's intelligence chief, told the Senators simply that he thought the memo was “stupid.” Dunlavey's request conveyed no such ambivalence, however. “I believe the methods and techniques delineated in the accompanying J-2 memorandum will enhance our efforts to extract additional information,” he wrote, adding “I have concluded that these techniques do not violate U.S. or international laws.” 67

Dunlavey attached the document on which he said he was basing that conclusion, a legal brief prepared by his Staff Judge Advocate, Lieutenant Colonel Diane Beaver. Although there is no evidence that Beaver had seen the secret August 1, 2002 Yoo memos, Fredman had semaphored the essentials of Yoo's arguments at the October 2 meeting, including his conclusion that “severe physical pain” was on the order of organ failure or death; he had also signaled that the CIA had received official approval for techniques up to and including waterboarding. The gist of the White House's position was clear, and Beaver, thus instructed, wrote her seven-page memo the following weekend.

The memo begins by reviewing international, domestic, and military laws that constrain interrogations. Although Beaver finds that the European Court of Human Rights held that Britain's use of hooding, forced standing, white noise, and food and sleep deprivation on IRA prisoners in the 1970s violated the Convention Against Torture's prohibition on cruel, inhuman, and degrading treatment, she waves off international law entirely in light of the determination that Guantánamo detainees are not protected by the Geneva Conventions. Under U.S. law, she acknowledges, interrogators are bound by the Torture Statute's incorporated Eighth Amendment prohibition on “cruel and unusual punishment,” but that

so long as the force used could plausibly have been thought necessary in a particular situation to achieve a legitimate governmental objective, and it was applied in a good faith effort and not maliciously or sadistically for the very purpose of causing harm, the proposed techniques are likely to pass constitutional muster. The federal torture statute will not be violated so long as any of the proposed strategies are not specifically intended to cause severe physical pain or suffering or prolonged mental harm. Assuming that severe physical pain is not inflicted, absent any evidence that any of these strategies will in fact cause prolonged and long lasting mental harm, the proposed methods will not violate the statute.68

She then proceeds through the three categories of proposed techniques: “The use of mild and fear related approaches such as yelling at the detainee is not illegal because in order to communicate a threat, there must also exist an intent to injure.” Category II techniques including stress positions, forced standing, prolonged isolation, and 20-hour interrogations “are all legally permissible so long as no severe physical pain is inflicted and prolonged mental harm intended, and because there is a legitimate governmental objective in obtaining the information necessary that the high value detainees on which these methods would be utilized possess, for the protection of the national security of the United States, its citizens, and allies.” Finally,

With respect to the Category III advanced counter-resistance strategies, the use of scenarios designed to convince the detainee that death or severely painful consequences are imminent is not illegal for the same aforementioned reasons that there is a compelling governmental interest and it is not done intentionally to cause harm. However, caution should be utilized with this technique because the torture statute specifically mentions making death threats as an example of inflicting mental pain and suffering. Exposure to cold weather or water is permissible with appropriate medical monitoring. The use of a wet towel to induce the misperception of suffocation would also be permissible if not done with the specific intent to cause prolonged mental harm, and absent medical evidence that it would. Caution should be exercised with this method, as foreign courts have already advised about the potential mental harm that this method may cause. The use of physical contact with the detainee, such as pushing and poking will technically constitute an assault under Article 128, UCMJ.69

Having reached the conclusion that some of the techniques are per se violations of the Uniform Code of Military Justice, Beaver suggests “It would be advisable to have permission or immunity in advance from the convening authority for military members to utilize these methods.”70

Matthew Alexander 10/01/10: Another theme throughout the The Torture Report is the military leadership's refusal to acknowledge that EITs violate the Uniformed Code of Military Justice. This willingness to ignore UCMJ for interrogations certainly led to other crimes being committed by U.S. soldiers who believed 'the gloves were off.'

If Phifer and Becker had misgivings about the list of techniques they were proposing, Beaver had grave doubts about her legal analysis. She had asked for help from lawyers at SOUTHCOM and the Pentagon in drafting the memo, and when that wasn't forthcoming, she assumed that her brief would be “carefully reviewed by legal and policy experts at the highest levels before a decision was reached.” In a 2008 hearing before the Senate Armed Services Committee, Beaver said she was “shocked” to learn later that her memo “would become the final word on interrogation policies and practices within the Department of Defense,” something that, for her, “was simply not foreseeable.” As the Committee reported, “She stated she did not expect to be the only lawyer issuing an opinion on this monumentally important issue” and that “in hindsight, [she] could not ‘help but conclude that the others chose not to write on this issued to avoid being linked to it.'” 71

In fact, when SOUTHCOM Commander James Hill relayed Dunlavey's request for approval of the 19 techniques to the Joint Chiefs two weeks later, he expressed uneasiness with Beaver's conclusion and specifically requested addition legal review.

I am uncertain whether all the techniques in the third category are legal under U.S. law, given the absence of judicial interpretation of the U.S. torture statute. I am particularly troubled by the use of implied or expressed threats of death of the detainee or his family. However, I desire to have as many options as possible at my disposal and therefore request the Department of Defense and Department of Justice lawyers review the third category of techniques.72

One of Hill's SOUTHCOM lawyers, Assistant Staff Advocate Mark Gingras, later told the Army's Inspector General that Hill's team had doubts about both the Category II and Category III techniques, but that it was clear that in conveying their reservations to Washington they were bucking a headwind:

As lawyers we're talking about adherence to the rule of law being important, and that's what we're trying to tell everybody as we travel around the world to these other countries. That's paramount to democracy. And so suddenly we look like we're brushing this aside or we're twisting the law. The feeling was that the decision makers within the Pentagon didn't much care about that. They cared about winning the War on Terrorism. And if that meant you had to pull out fingernails you'd pull out fingernails, figuratively speaking.73

When Dunlavey's request reached the Pentagon, Captain Jane Dalton, the Joint Chief's legal counsel, also found Beaver's legal analysis “woefully inadequate.” Dalton forwarded the request and attachments to each of the branches of the armed services for comment, and received a chorus of protests in return. The Air Force came back with a memo expressing “serious concerns regarding the legality of many of the proposed techniques” and suggesting that “some of these techniques could be construed as ‘torture' as that crime is defined by 18 U.S.C. 2340.” The Navy called for “a more detailed interagency legal and policy review.” The Marine Corps concluded that “several of the Category II and III techniques arguably violate federal law, and would expose our service members to possible prosecution” under U.S. law and the UCMJ. The Army submitted two memoranda, one from its Office of the Judge Advocate General and one from its Criminal Investigative Task Force. The Judge Advocate General's office warned that death threats and waterboarding “appear to be clear violations of the federal torture statute” and that techniques such as stress positions, deprivation of light and auditory stimuli, the use of individual phobias, removal of clothing, and forced grooming “crosses the line of ‘humane' treatment” and could well violate the UCMJ and the Federal anti-torture statute. The CITF's memo concurred that “[Category] III and [Category] II techniques may subject service members to punitive articles of the UCMJ” and warned that military personnel who witness or become aware of the use of such techniques could be exposed to criminal liability for failing to intercede or report the abuses. The CITF's legal advisor concluded, “I cannot advocate any action, interrogation or otherwise, that is predicated on the principle that all is well if the ends justify the means and others are not aware of how we conduct our business.”74

Captain Jane Dalton briefed Joint Chiefs Chairman General Richard Myers on the services' reactions and set up a teleconference with the Defense Intelligence Agency, the Army's Ft. Huachuca Intelligence School , SOUTHCOM, and Guantánamo to learn more about the proposed techniques and prepare for an independent legal review. She also drafted a memo for Myers to send to SOUTHCOM stating, “We do not believe the proposed plan is legally sufficient” and warning that “several of the Category III techniques arguably violate federal law, and could expose interrogators to possible prosecution.”75 The Myers memo was to recommend “in-depth technical, policy, and legal assessment” of the techniques before they were approved. But as the Senate Armed Services Committee reported,

According to CAPT Dalton, after she and her staff initiated their analysis, CJCS GEN Myers directed her to stop that review. CAPT Dalton said that GEN Myers returned from a meeting and “advised me that [DoD General Counsel] Mr. Haynes wanted me…to cancel the video teleconference and to stop” conducting the review because of concerns that “people were going to see” the GTMO request and the military services' analysis of it. According to CAPT Dalton, Mr. Haynes “wanted to keep it much more close hold.” When CAPT Dalton “learned that [the DoD General Counsel] did not want that broad based legal and policy review to take place,” she and her staff stopped the review. This was the only time that CAPT Dalton had ever been asked to stop analyzing a request that came to her for her review.76

Matthew Alexander 10/01/10: This is one of the most important moments in the entire decision-making process that resulted in the torture and abuse of detainees. The senior ranking military officer in the United States stops a legal review of the techniques by the services when they advise that EITs violate the law. This was a perfect opportunity for General Myers to stand up and say that these techniques violated everything we stand for in the military and he would have had the full support of all four services behind him. Instead, he decided to 'play game', sacrificing our principles in exchange for what was politically convenient, but morally incomprehensible. If the military had investigated torture and abuse as a crime, as it should have, this would have led to several charges being filed against Gen Myers including abuse of authority and conspiracy, just to name two.

***

It was now early November. Over the past month, following their one-week interrogation of Qahtani in Camp X-Ray, military interrogators had been expanding their use of aggressive techniques in other interrogations as well, regardless of the lack of official approval for anything beyond the Field Manual's proven methods. On October 15, 2002, two FBI agents were questioning a detainee in Camp Delta when a “giggling” military interrogator entered the interrogation room and told them “You guys have to come see this.” They were shown to a nearby room where a detainee sat handcuffed to the I-bolt in the floor, his head wrapped in duct tape. Two guards and two military interrogators were in the room, one of whom was screaming at the detainee. “Was he spitting on someone?” one of the FBI agents asked. “No, he just wouldn't stop chanting the Koran,” their guide answered.77 FBI agents were reporting other incidents as well—of sleep deprivation, of a female interrogator exposing her breasts to a detainee, of an interrogator smearing a detainee with vegetable oil while telling him it was “pig's oil.” 78 “Stupid, demeaning, and ineffective” is how David Nahmias, Assistant Attorney General for the Criminal Division, later characterized such improvisations.79

Nahmias and the head of the FBI's Military Liaison and Detainee Unit traveled to Guantánamo on October 15, 2002. During their three-day visit, the military boasted to Nahmias that it had “broken” Qahtani, and that deep into a marathon interrogation he had blurted Mohammed's Atta's name. Agents from the FBI's Behavioral Analysis Unit dismissed the claim, insisting that Qahtani “was just giving the interrogators what they wanted so they would let him eat or go to the bathroom.” Nahmias and the MLDU Unit Chief challenged the military on its claim directly during a videoconference with Major General Geoffrey Miller, the incoming Commander of the combined JTF-GTMO, Lieutenant Colonel Phifer, the chief CITF psychologist, Pentagon officials, and a representative of the CIA. During that teleconference, Phifer presented the military's plan for an even more aggressive interrogation of Qahtani, trumpeting the information military intelligence had extracted in its recent sessions. According to the Justice Department's Inspector General,

At that point the FBI Unit Chief said he spoke up and said “look, everything you've gotten thus far is what the FBI gave you on Al-Qahtani from its paper investigation.” The Unit Chief said the conversation became heated. According to the Unit Chief, the Chief CITF Psychologist and Nahmias agreed that the information the Lieutenant Colonel presented had been provided by the FBI and that the Lieutenant Colonel's suggested interrogation methods were not effective and were not providing positive intelligence. The Unit Chief said that the meeting ended because of the controversy.80

Nahmias and the Unit Chief left Guantánao on October 18, convinced that the military's interrogation plan wouldn't work and that the military was “completely ineffective in getting any kind of intelligence” out of Qahtani. 81 Back in Washington, Nahmias shared his concerns with Michael Chertoff, then Assistant Attorney General for the Criminal Division, and the two of them brought the issue to Attorney General John Ashcroft and Deputy AG Larry Thompson. Ashcroft and Chertoff reportedly supported the FBI's position, raising questions about the effectiveness of the military's interrogation of Qahtani and suggesting that the DoD's descriptions of the information Qahtani had provided was often inaccurate, either because he was lying or because the military was misrepresenting what he said. 82 By early November, the dispute over Qahtani's treatment was the subject of “ongoing, long-standing trench warfare in the interagency discussions” between the FBI and the military, including at the Principals Committee,” Ashcroft's Chief of Staff later told the Justice Department's Inspector General. According to Nahmias, Chertoff and Ashcroft “were continually frustrated by their inability to get any changes or make progress with regard to the Al-Qahtani matter.” 83

In early November, General Geoffrey Miller assumed command of Joint Task Force GTMO, which replaced the divided JTF 160 and JTF 170 command structure at Guantánamo. Miller arrived with a clear sense of his mission: Baccus had been relieved of the command of JTF 160 in October, four days after the Washington Times reported on the growing rift between Baccus and Dunlavey over the treatment of prisoners; the Times article pointed in particular to a decision by Baccus to allow the Red Cross to hang posters informing inmates they were required to provide only name, rank, and serial numbers to interrogators. Pentagon sources quoted in the article berated Baccus, who allegedly had begun greeting detainees with “Peace be with you,” as “too nice,” and insinuated he had been interfering with Dunlavey's intelligence gathering operations. As a combined unit whose primary emphasis was the production of intelligence, JTF-GTMO was meant to eliminate such tensions and reorganize camp life to better serve that purpose. 84

On November 12, 2002, having received none of the extra legal guidance he requested and over the expressed reservations of all four services, the FBI, the CITF, and those two agency's most seasoned interrogators, SOUTHCOM Commander General Hill gave Miller verbal approval for the use of the Category I and Category II techniques on Qahtani—a list that included stress positions, isolation of up to 30 days, sensory deprivation, hooding, nudity, forced grooming, and the use of individuals phobias and 20-hour interrogations. That same day, Lieutenant Colonel Phifer sent an email to General Miller with a four page attachment stating, “[h]ere is the Interrogation Plan for ISN:063 as approved by you. Request you fwd to Gen. Hill, info J2/J3/COS. We will begin at 0001 15 Nov per your guidance.” 85

The attached “Special Interrogation Plan” described a four-phase operation whose purpose was to “break the detainee and establish his role in the attacks of September 11, 2001.” “Prior to the Interrogation, we would like to have the detainee's head and beard shaved,” the plan began. “This is to be done for both psychological and hygiene purposes.” Qahtani would be interrogated in 20 hour sessions and allowed four hours rest in an indefinitely repeating cycle. “During the interrogation the detainee will at all times be placed in stress positions and blindfolded. If necessary the detainee may have his mouth taped shut in order to keep him from talking. Written approval for the tape and for the presence of dogs will be submitted and obtained prior to implementation.” The tape had a particular purpose: in Phase I of the plan, interrogators would harangue and berate Qahtani for days and not allow him to speak, with the idea that, when finally given the opportunity, he would “provide his whole story.”

In Phase II, a military translator posing as a detainee would be placed in a Camp X-Ray cell near Qahtani's in a ruse to get him to reveal the secrets he was withholding between interrogation sessions. If this didn't work,

The third phase of the plan to exploit 063 requires OSD approval for the SERE interrogation technique training and approval of the level three counter interrogation resistance training submitted by JTF-GTMO. Once the approvals are in place, those interrogation techniques will be implemented to encourage 063 to cooperate.

Finally, if this phase employing the Category II and III techniques failed, the military would move to Phase IV, titled “Coalition Exploitation”:

The fourth phase of the plan to exploit 063 required that he be sent off-island either temporarily or permanently to either Jordan or Egypt, or another country to allow those countries to employ interrogation techniques that will enable them to obtain the requisite information.86

On November 14, 2002, anticipating the furious objections that were to follow, Lieutenant Colonel Beaver sent an email to Major Sam McCahon, the CITF's legal advisor, saying, “[c]oncerning 63, my understand is that NSC has weighed in and stated that intel on this guy is utmost matter of national security…We are driving forward with support from SOUTHCOM. Not sure anything else needs to be said.” 87 But both CITF and the FBI were determined to derail the plan. That same day, CITF Commander Colonel Britt Mallow emailed General Miller directly:

I strongly disagree with the use of many of the proposed [Category] 3 and some [Category] 2 techniques. I feel they will be largely ineffective, and that will have serious negative material and legal effects on our investigations. I also am extremely concerned that the use of many of these techniques will open our military members up for potential criminal charges, and that my agents, as well as other [military personnel] will face both legal and ethical problems if they become aware of their use.” 88

The next day, unaware that Captain Dalton's legal review had been aborted, McCahan submitted a legal memo to Miller stating that CITF had raised “formal legal objections” to the interrogation and that SOUTHCOM was in no position to approve a plan that was “currently under legal review” at the Pentagon General Counsel's office. McCahon reiterated that “the reliability of any information gained from aggressive techniques will be highly questionable.” He specifically objected to all of the SERE-based “physical stresses” in Phase III of the plan, and decried Phase IV's implication “that third country nationals with harsher interrogation standards could be used to convey threats to persons of family or inflict harm contrary to the Convention Against Torture.” 89

FBI agents who saw the interrogation plan likewise judged it “deeply flawed.” Two BAU agents who had recently arrived in Guantánamo reported to headquarters that at least one of the “techniques,” preventing Qahtani from speaking in anticipation he would later tell all, had an especially dubious provenance: “It is our information,” the agents wrote, “that this interrogation technique was recommended by…an Army linguist, who claims to have a number of years of ‘Agency' experience. Other than the word of this agent, there has been no data proffered which justifies the use of this technique.” Objecting in particular to the proposed Phase IV rendition to Egypt or Jordan , the two concluded, “[u]nless this plan is modified to exclude aspects that have not been approved for FBI personnel, we cannot be a signatory.” 90 A few days later, these two agents carried these concerns into an “interrogation strategy session” with defense intelligence officers. Disturbed by the “utter lack of sophistication” and “circus-like atmosphere” of the meeting, the agents later described to the Justice Department's Inspector General the “‘glee' with which the would-be participants discussed their respective roles in carrying out the techniques.” 91

As protests grew, Miller postponed the plan's start date by a week and told his interrogators and the FBI and CITF to find some “common ground.” In preparation for a meeting on November 20, the FBI and CITF drew up an alternative interrogation plan that would rely on long-term rapport building. According to the Inspector General, their joint plan pointed out that Qahtani's negative interrogation “only reinforces Al-Qaeda stereotypes about evil Americans and validates their expectation of harsh treatment and potential torture.” The FBI pressed its approach at a meeting with General Miller himself, stressing the effectiveness of rapport-buildig methods with even the most hardened criminals and pointing out that, in the case of suspected al Qaeda militants, inflicting suffering on someone who believes his suffering will be rewarded by God is almost certainly counterproductive. Miller acknowledged “positive aspects of rapport building” at the meeting, but clearly backed the military plan, which he described as “relentless” and “a sustained attack.”

When the agencies sat down together on the evening of November 20, it was immediately clear to the FBI “that the military could not agree to a plan that did not include the application of SERE techniques and a phase which involved sending Al-Qahtani to a third country where he could be tortured to get information.” 92 But by the end of the meeting the FBI had floated, and believed it had won military support for, a third, “hybrid” interrogation plan that would give the FBI one more week with Qahtani in the hope it might gather enough information to scuttle the rest of the military's plan. The following morning, anticipating a videoconference with Washington later that day that would decide Qahtani's fate, the BAU agents wrote to FBI headquarters,

As promised, attached is a “hybrid” plan for #63 that incorporates a phase where our desired techniques are employed. DOD here on the ground agreed to this plan and will discuss it during the 1600 meeting today. I believe that is the same meeting you are attending. We are also sending the plan to the BAU for their review. We remain ambivalent about this hybrid approach even though they bought off on a rapport building phase one. One of the downsides is that it is not a plan that allows for a long term rapport building technique. Success or failure will be determined in 5-7 days before moving on to the next phase. Also attached is a narrative written by [redacted] which advocates a long term approach—also being sent to BAU. A concern with embracing the hybrid approach is that there will be many variables that we will have no control over. As I understand it, we are not to participate with DOD in the actual interrogation. I think this is wise. However, in order to further diplomacy we met with DOD at its request, to determine if there was any middle ground between their approach and our proposed approach. The hybrid approach was that middle ground. But we still have misgivings:

1. The DHS plan seems better suited for the battlefield and not for long-term detainees

2. Although very enthusiastic, DHS interrogators appear to have limited experience in any kind of interview approach which emphasized patience or being friendly over a long period of time. They appear to be highly susceptible to pressure to get quick results, and this pressure will be reflected in they improvise plans as they go along.

3. The reliability of the interview techniques is questionable. Worse, there appears to be no one on the DHS side who seems to be concerned about this. They are quick to dismiss any approach that extends beyond their experience or imagination.

4. Their embracement of a fear-based approach is consistent with the military environment in which they operate, but may not be conducive to the long term goal of obtaining reliable intelligence.

I know that you may have news for us following your 1600 meet. Please review the documents attached and advise as to whether we should participate further in any way or gracefully back out on this one. If you want us to back out, I request that HQ provide a written communication directing us not to get involved. Otherwise, our continued dealings with the other agencies are cramped.

[From [redacted]>> Although I agree with the above, I think DHS will likely revert back to their original plan, which basically begins with Phase II of this hybrid plan, if we don't give our blessing to the hybrid plan. While the hybrid is not the best plan, I do believe it is the lesser of two evils. I also believe that this hybrid plan does simulate some of the important factors found in Stockholm Syndrome cases. Specifically, extended hours awake under increased stress continuing over a number of days, extended periods of time where rapport may be developed and the interviewer can become humanized in the detainee's eyes, opportunity for the detainee to be convinced that they are going through this ordeal together, all work together to possibly accelerate the bonding process. For these reasons I think this hybrid has more opportunity for success that the DHS original plan.93

During the November 21, 2002 videoconference, which connected Miller, Phifer, and CITF and FBI personnel in Guantánamo with SOUTHCOM in Florida and Jim Haynes' office in Washington, the military made no mention of either the new joint FBI/CITF plan or the FBI's propose hybrid. Instead, Phifer—identified by the Inspector General as “the same Lieutenant Colonel who had falsely claimed in the October 2002 teleconference that the DOD had obtained information from Al-Qahtani using aggressive methods”—now claimed the FBI had helped develop, and supported, the military's interrogation plan. As one of the FBI's BAU agents later reported, during the “awkward teleconference,” Phifer “blatantly misled the Pentagon into believing that the BAU endorsed [military intelligence's] aggressive and controversial Interrogation Plan.” 94

The military's final version of the plan included a new Phase I that mirrored the FBIs proposal to use non-aggressive methods, but under the control of military interrogators, not FBI agents. Phase II, like the first plan's Phase I, would commence with forced shaving and include the shut-up-and-talk routine, for which, the plan specifically noted, General Miller had now approved “the use of hospital gauze to restrain the detainee's mouth to prevent him from becoming argumentative and verbally abusive.” Phase III was now the ruse of the linguist posing as a detainee, and Phase IV the use of SERE techniques, minus stress positions and dogs, which Miller later insisted were removed from the plan on his instructions. “The intent of raising the stakes to this level is to convince 063 that it is futile to resist,” the plan said. “Success of [this phase] is when his sense of futility is raised to a high enough level that source gives in and provides the necessary information.” The phase ends “with success or a standstill, after the exhaustion of all tools JTF-GTMO has to offer. 95

Finally, though Phase V retained the original Phase IV title “Coalition Exploitation,” it hedged the question of what might await Qahtani in the event Phase IV ended in a “standstill.” While still hinting at the possibility of rendition to a third country, it stated, “The fifth phase of the plan to exploit 063 will be determined at the national interagency level where the future disposition of 063 will be determined. 96

The FBI made no move during the videoconference to object to Phifer's claim that the agency backed the military's plan. But the FBI's on-site supervisor and two agents met with Miller afterwards to press their case. Miller reportedly “thanked them for their views, but told them JTF-GTMO staff knew what they were doing. 97 Later that day, the supervisor wrote a memorandum to Miller summarizing for the record the events of the previous week:

From: FBI Guantanamo Bay
Subject: VTC 21 November 2002
To: Major General Miller

The purpose of this correspondence is to bring to the Commanding General's attention concerns that FBI has regarding representations that were made about the FBI's position on the proposed operational approach to [redacted] at the 21 November VTC.

At the direction of the Commanding General and in an effort to find some methodological common ground with respect to an Interrogation Plan for detainee [redacted] the FBI On-site Supervisor and Supervisors from the FBI Behavioral Analysis Unit met with JTF GTMO staff members on the evening of 20 November. During this meeting, DHS presented its draft Interrogation Plan. The FBI voiced misgivings about the overall coercive nature and possible illegality of elements of this plan. The FBI also voiced its strong objections regarding the efficacy of a fear-based approach.

The FBI offered in writing an alternative interrogation approach based on long term rapport-building. This approach was previously discussed extensively between FBI Behavioral experts and DHS and JTF staff members. At the 20 November meeting, DHS and JTF staff members recognized advantages of the FBI's approach, and decided to revise their plan by incorporating some of the FBI's rapport-building aspects. Despite the close working environment of this consultation, JIG and DHS staff never advised FBI personnel that the revised plan would be presented the following day to the Pentagon Office of General Counsel. In fact, the FBI representatives stated clearly to the JIG and DHS representative that the techniques proposed in the plan must be reviewed and formally approved by FBIHQ and BAU officials prior to any implementation.

Had the JIG advised the FBI of his intentions to present the revised DHS plan to DOD at the 21 November VTC as an FBI/DHS plan, FBI representatives would have strenuously objected. Additionally, although all agencies were aware that the NCIS Chief Psychologist, Dr. [redacted] was scheduled to arrive on 21 November for the purpose of evaluating the DHS and FBI plans, the JIG did not solicit Dr. [redacted] professional opinion. 98

That Naval Criminal Investigative Service Chief Psychologist was Michael Gelles, who submitted his review of the military's plan—a plan he concluded “lacks substantive and thoughtful consideration”—the following day. Gelles, too, cautioned that “the choice to use force with this adversary in an interrogation may only reinforce his resistance,” and added, by way of a warning, that if the plan went forward, “I would have trouble not finding myself from a professional perspective, being forced into an adversary position through cross examination in a military tribunal as an expert on interrogation.” 99

Ignoring him as well, Miller approved the military's plan that same day, November 22, 2002, and by 2:25 a.m. the following morning Qahtani was back bolted to the floor of an interrogation booth in Camp X-Ray.

***

Against the FBI's advice that he be allowed to “get well” after his one-week interrogation in Camp X-Ray at the beginning of October, Qahtani had spent the intervening weeks in complete isolation in the navy brig, subjected to bright lights, noise, and sleep deprivation. One hundred and fifty-seven pounds on July 2, 2002, he weighed 108 pounds on November 15, a week before the “Special Interrogation” began. 100 He arrived in the booth depleted and frail—and according to the BSCT psychiatrist who participated in the 7 week interrogation, deliberately disoriented. When he was transferred, Qahtani was “made [to] believe he was sent to a hostile country which advocated torture,” and “led to believe he himself might be killed if he did not cooperate with questioning,” the BSCT told the Senate Armed Services Committee. 101

Two days after the “Special Interrogation” began, CITF legal advisor Sam McCahon emailed Diane Beaver, formally declaring that “CITF is not on board with aggressive techniques including twenty hour [plus] interrogations. Therefore, according to our policy, we will ‘stand clear' and not offer participation, advisements, support, or recommendations as to its implementation.” 102 The FBI was following a similar course, telling its agents to “stand well clear of it” and formally registering protests up the chain of command. On December 2, 2002, an FBI agent and attorney submitted his legal review of the military's Category I through III techniques concluding “All the Category III techniques and many of those in Category II, including hooding, nudity, stress positions, 20 hour interrogations, and the use of individual phobias such as fear of dogs to reduce stress, were “coercive interrogation techniques which are not permitted under the U.S. Constitution's Eighth Amendment prohibition on cruel and unusual punishment”; moreover, many of those techniques are also “examples of coercive interrogation techniques which may violate 18 U.S.C. §2340, the ‘Torture Statute.'” Therefore, the analysis concluded, “It is possible that those who employ these techniques may be prosecuted, and possibly convicted if the trier of fact determines that the user had the requisite intent.” 103

That same day, Defense Secretary Donald Rumsfeld signed a memo approving the use of all of the Category I and Category II interrogation techniques proposed in Dunlavey's October 11 memo and one, the use of “mild, non-injurious physical contact,” from Category III. Rumsfeld's General Counsel Jim Haynes had submitted the recommendation on November 27, 2002, under pressure from Rumsfeld, who had been expressing “exasperation that he didn't have a recommendation.” Rumsfeld could have simply signed his name indicating his approval, but a handwritten note on the bottom of the memo seemed to underscore, as his deputies had for months in their weekly calls with Dunlavey and Miller, which side of the line he wanted military interrogators to lean. “However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?” Rumsfeld asked rhetorically. 104

In “the Battle Lab,” the message came through loud and clear. Timothy James, the CITF's Special Agent in Charge in Guantánamo, told the Senate Armed Services Committee he was “in shock” when he saw Rumsfeld's authorization; it “told us we had lost the battle,” he said. At 8:00 p.m. the following night, Qahtani's interrogation log notes, “Phase 1B” began. Qahtani was told he was being returned to Cuba , bundled hooded in the back of an ambulance and driven to another interrogation booth, where he was bombarded with music and forcibly shaved. Four days later he was in the hospital recovering from a dangerously slow heart beat and low core temperature and hypothermia. Two days after that, he was back in the booth, and the assault resumed.

By then, military interrogations were preparing a document titled “JTF-GTMO ‘SERE' Interrogation Standard Operating Procedure,” which began,

This SOP document promulgates procedures to be followed by JTF-GTMO personnel engaged in interrogation operations on detained persons. The premise behind this is that the interrogation tactics used at U.S. military SERE schools are appropriate for use in real-world interrogations. These tactics and techniques are used at SERE school to ‘break' detainees. The same tactics and techniques can by used to break real detainees during interrogation operations.

“Note that all tactics are strictly intended to be non-lethal,” the authors felt compelled to add. 105

The draft “Standard Operating Procedure” developed protocols for using the Rumsfeld-approved SERE techniques camp-wide: it laid out how the insult slap” and “stomach slap” are administered “to shock and intimidate the detainee”; explained that “stripping” meant “forceful removal of detainee's clothing”; and described kneeling, standing, and “Worship the Gods” stress positions. A December 18 version of the SOP instructed that a “corpsman or medic should be onsite, and a doctor on-call should medical care be necessary,” and that JTF-GTMO's military and civilian interrogators “will undergo training by certified SERE instructors prior to being approved for use of any of the techniques described in this document.”

While the SOP was being drafted, Rumsfeld issued a letter directing the JPRA to send two SERE trainers to Guantánamo to instruct JTF-GTMO's Intelligence Control Element on the “theory and application of the physical pressures” used in the Navy's SERE school. A similar SERE workshop the month before for CIA agents posted to the black sites had been a “fiasco,” according to the SERE psychologist who organized the sessions; there, CIA interrogators had taken the lead in demonstrations, waterboarding one another and showcasing a technique to “enhance” the “pain threshold”—a technique the trainers themselves later said they believed would be “totally inappropriate to do to anybody, whether it's an American or a foreign detainee” for fear it might cause “permanent physical damage.” 106

SERE trainers John Rankin and Christopher Ross arrived in Guantánamo on December 30, 2002. In their sessions with JTF-GTMO, Rankin and Ross concentrated not on the more extreme physical abuses featured in the CIA sessions, but on the “theory” of the Rumsfeld-approved Category II and Category III-level pressures. “On the morning of 31 Dec 02, Mr. Ross and I initiated training with an in-depth class on Biderman's Principles…to approximately 24 ICE personnel,” Rankin recounted in his after action report; he attached the hand-out he had given the ICE with “Biderman's Chart of Coersion.” Rankin and Ross followed this with a class “covering interrogation fundamentals and resistance to interrogation,” a session Rankin said was “specifically requested since it was evident that some of the higher priority detainees had received some kind of resistance training, as evidenced by the Al Qaeda training manual.” Before leaving the island, the two met with General Miller and discussed a “high level” directive that “outlined specific guidance regarding current and proposed ICE operation in dealing with detainees.” Rankin added a handwritten note at the end of his report: “Maybe a good idea to plan/coordinate a return trip to see how things are progressing,” he suggested. 107

But by the time Rankin and Ross left Guantánamo on January 4, 2003, just over a month after Rumsfeld had signed the interrogation techniques memo, a rebellion was gaining force that would bring the Qahtani interrogation—now in its sixth week—to an end and interrupt talk of any future training sessions.

***

On December 17, 2002, the twenty-seventh day of his “special interrogation,” interrogators forced the shackled Qahtani to wear a bra, placed a thong on his head, and began calling him a homosexual and his mother and sister prostitutes and whores. That same day David Brant, who headed he Navy's Criminal Investigative Service, visited Alberto Mora, the Navy's General Counsel, in his Pentagon office. As Mora later reported,

In a late afternoon meeting, NCIS Director David Brant informed me that NCIS agents attached to JTF-160, the criminal investigation task force in Guantanamo, Cuba, had learned that some detainees confined in Guantanamo were being subjected to physical abuse and degrading treatment. This treatment—which the NCIS agents had not participated in or witnessed—was allegedly being inflicted by personnel attached to JTF-170, the intelligence task force, and was rumored to have been authorized, at least in part, at a “high level” in Washington, although NCIS had not seen the text of this authority. The NCIS agents at Guantanamo and civilian and military personnel from other services were upset at this mistreatment and regarded such treatment as unlawful and in violation of American values. Director Brant emphasized that NCIS would not engage in abusive treatment even if ordered to and did not wish to be even indirectly associated with a facility that engaged in such practices.

Director Brant asked me if I wished to learn more. Disturbed, I responded that I felt I had to. We agreed to meet again the following day. That evening, I emailed [Rear Admiral] Michael Lohr, the Navy JAG, and invited him to attend the next morning's meeting with NCIS. 108

In a 2006 profile in The New Yorker, Jane Mayer describes Alberto Mora as “a cautious, cerebral conservative who admired President Reagan and served in both the first and second Bush Administrations as a political appointee.” Mora's parents had fled Communist regimes in Hungary and Cuba; one of his great uncles had been tortured and hanged, and another had been sent to a Nazi concentration camp. “People who went through things like this tend to have very strong views about the rule of law, totalitarianism, and America,” Mora told Mayer.

In that interview, Mora spoke of his reaction to Brant's report, the first he had heard of what was happening to Qahtani, and of the dangerous game of trying to parse what exactly constitutes torture. “To my mind, there's no moral or practical distinction” between torture and other cruel, inhuman, and degrading treatment, Mora insisted.

If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America — even those designated as ‘unlawful enemy combatants.' If you make this exception, the whole Constitution crumbles. It's a transformative issue.”

“[M]y mother would have killed me if I hadn't spoken up,” Mora explained his subsequent actions to Mayer. “No Hungarian after Communism, or Cuban after Castro, is not aware that human rights are incompatible with cruelty.” 109

On the morning of December 18, 2002, Brant returned to Mora's office with NCIS Chief Psychologist Michael Gelles. As part of the CITF team, Gelles had computer access to Guantánamo interrogation logs, and since he had filed his fruitless protest to the Special Interrogation Plan on November 22, he had been tracking the daily reports of Qahtani's interrogation and briefing Brant on what they both believed was the increasingly unlawful behavior of the military interrogators. In his July 7, 2004 “Statement for the Record: Office of General Counsel Involvement in Interrogation Issues,” one of the most vivid and stirring documents in the historical record of the Bush administration torture program, Alberto Mora presented Navy Vice Admiral Albert Church this narrative of that meeting and its aftermath:

18 Dec 02

I met with Director Brant and NCIS Chief Psychologist Dr. Michael Gelles. Dr. Gelles had advised JTF-160 in interrogation techniques and had spent time at the detention facility. Also present were OGC Deputy General Counsel William Molzahn, RADM Michael Lohr, and my Executive Assistant, CAPT Charlette Wise.

Dr. Gelles described conditions in Guantanamo and stated that guards and interrogators with JTF-170, who were under pressure to produce results, had begun using abusive techniques with some of the detainees. These techniques included physical contact, degrading treatment (including dressing detainees in female underwear, among other techniques), the use of “stress” positions, and coercive psychological procedures. The military interrogators believed that such techniques were not only useful, but were necessary to obtain the desired information. NCIS agents were not involved in the application of these techniques or witnesses to them, but had learned of them through discussions with personnel who had been involved and through access to computer databases where interrogation logs were kept. Dr. Gelles showed me extracts of detainee interrogation logs evidencing some of this detainee mistreatment.

These techniques, Dr. Gelles explained, would violate the interrogation guidelines taught to military and law enforcement personnel and he believed they were generally violative of U.S. law if applied to U.S. persons. In addition, there was a great danger, he said, that any force utilized to extract information would continue to escalate. If a person being forced to stand for hours decided to lie down, it probably would take force to get him to stand up again and stay standing. In contrast to the civilian law enforcement at Guantanamo, who were trained in interrogation techniques and limits and had years of professional experience in such practices, the military interrogators were typically young and had little or no training or experience interrogations. Once the initial barrier against the use of improper force had been breached, a phenomenon known as “force drift” would almost certainly begin to come into play. This term describes the observed tendency among interrogators who rely on force. If some force is good, these people come to believe, then the application of more force must be better. Thus, the level of force applied against an uncooperative witness tends to escalate such that, if left unchecked, force levels, to include torture, could be reached. Dr. Gelles was concerned that this phenomenon might manifest itself at Guantanamo.

Director Brant reiterated his previous statements that he and the NCIS personnel at Guantanamo viewed any such abusive practices as repugnant. They would not engage in them even if ordered and NCIS would have to consider whether they could even remain co-located in Guantanamo if the practices were to continue. Moreover, this discontent was not limited to NCIS; law enforcement and military personnel from other services were also increasingly disturbed by the practice.

Director Brant also repeated that NCIS had been informed that the coercive interrogation techniques did not represent simply rogue activity limited to undisciplined interrogators or even practices sanctioned only by the local command, but had been reportedly authorized at a “high level” in Washington. NCIS, however, had no further information on this.

The general mood in the room was dismay. I was of the opinion that the interrogation activities described would be unlawful and unworthy of the military services, an opinion that the others shared. I commended NCIS for their values and their decision to bring this to my attention. I also committed that I would try to find out more about the situation in Guantanamo , in particular whether any such interrogation techniques had received higher-level authorization.

19 Dec 02

Knowing that the Department of the Army had Executive Agent responsibility for Guantanamo detainee operations, I called Steven Morello, the Army General Counsel, and told him that I had heard of alleged interrogation abuse in Guantanamo. Mr. Morello responded that he had information on the issue and invited me to visit with him and his deputy, Tom Taylor, to discuss it further.

In the Army OGC offices, Mr. Morello and Mr. Taylor provided me with a copy of a composite document (Att 2) capped by an Action Memo from DOD General counsel William Haynes to the Secretary of Defense entitled “counter-Resistance Techniques.” The memo, which I had not seen before, evidenced that on December 2, 2002, Secretary Rumsfeld had approved the use of certain identified interrogation techniques at Guantanamo, including (with some restrictions) the use of stress positions, hooding, isolation, “deprivation of light and auditory stimuli,” and use of “detainee-individual phobias (such as fear of dogs) to induce stress.” This composite document (further referred to as the December 2 nd Memo”) showed that the request for the authority to employ the techniques had originated with an October 11, 2002, memorandum from MG Michael Dunlavey, the Commander of JTF-170, to the Commander, SOUTHCOM, and had proceeded up the chain of command through the Joint Staff until reaching the Secretary. The Dunlavey memo was accompanied by a legal brief signed by LTC Diane Beaver, the SJF to JTF-170, generally finding that application of the interrogation techniques complied with law.

Mr. Morello and Mr. Taylor demonstrated great concern with the decision to authorize the interrogation techniques. Mr. Morello said that “they had tried to stop it,” without success, and had been advised not to question the settled decision further.

Upon returning to my office, I reviewed the Secretary's December 2nd memo and the Beaver Legal Brief more closely. The brief held, in summary, that torture was prohibited but cruel, inhuman, or degrading treatment could be inflicted on the Guantanamo detainees with near impunity because, at least in that location, no law prohibited such action, no court would be vested with jurisdiction to entertain a complaint on such allegations, and various defenses (such as good motive or necessity) would shield any U.S. official accused of the unlawful behavior. I regarded the memo as a wholly inadequate analysis of the law and a poor treatment of this difficult and highly sensitive issue. As for the December 2nd Memo, I concluded that it was fatally grounded on these serious failures of legal analysis. As described in the memo and supporting documentation, the interrogation techniques approved by the Secretary should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture, a degree of mistreatment not otherwise proscribed by the memo because it did not articulate any bright-line standard for prohibited detainee treatment, a necessary element in such a document. Furthermore, even if the techniques as applied did not reach the level of torture, they almost certainly would constitute “cruel, inhuman, or degrading treatment,” another class of unlawful treatment.

In my view, the alleged detainee abuse, coupled with the fact that the Secretary of Defense's memo had authorized at least aspects of it, could—and almost certainly would—have severe ramifications unless the policy was quickly reversed. Any such mistreatment would be unlawful and contrary to the President's directive to treat the detainees “humanely.” In addition, the consequences of such practices were almost incalculably harmful to U.S. foreign, military, and legal policies. Because the American public would not tolerate such abuse, I felt the political fallout was likely to be severe.

I provided RADM Lohr with a copy of the December 2 nd Memo and requested that Navy JAG prepare a legal analysis of the issues. I also decided to brief Secretary of the Navy Gordon England and take my objections to DOD GC Haynes as quickly as possible.

Later that day, RADM Lohr wrote via email that he had brought the allegations of abuse to the attention of the Vice Chief of Naval Operations, ADM William Fallon. (Att 4)

20 Dec 02

At 1015, in a very short meeting, I briefed Navy Secretary Gordon England on the NCIS report of detainee abuse, on the December 2 nd Memo authorizing the interrogation techniques, and on my legal views and policy concerns. I told him I was planning to see DOD GC Haynes that afternoon to convey my concerns and objections. Secretary England authorized me to go forward, advising me to use my judgment.

That afternoon I met with Mr. Hayes in his office. I informed him that NCIS had advised me that interrogation abuses were taking place in Guantanamo, that the NCIS agents considered any such abuses to be unlawful and contrary to American values, and that discontent over these practices were reportedly spreading among the personnel on the base. Producing the December 2 nd Memo, I expressed surprise that the Secretary had been allowed to sign it. In my view, some of the authorized interrogation techniques could rise to the level of torture, although the intent surely had not been to do so. Mr. Haynes disagreed that the techniques authorized constituted torture. I urged him to think about the techniques more closely. What did “deprivation of light and auditory stimuli” mean? Could a detainee be locked in a completely dark cell? And for how long? A month? Longer? What precisely did the authority to exploit phobias permit? Could a detainee be held in a coffin? Could phobias be applied until madness set in? Not only could individual techniques applied singly constitute torture, I said, but also the application of combinations of them must surely be recognized as potentially capable of reaching the level of torture. Also, the memo's fundamental problem was that it was completely unbounded—it failed to establish a clear boundary for prohibited treatment. That boundary, I felt, had to be at that point where cruel and unusual punishment or treatment began. Turning to the Beaver Legal Brief, I characterized it as an incompetent product of legal analysis, and I urged him not to rely on it.

I also drew Mr. Haynes's attention to the Secretary's hand-written comment on the bottom of the memo, which suggested that detainees subjected to forced standing (which was limited to four hours) could be made to stand longer since he usually stood for longer periods during his work day. Although, having some sense of the Secretary's verbal style, I was confident the comment was intended to be jocular, defense attorneys for the detainees were sure to interpret it otherwise. Unless withdrawn rapidly, the memo was sure to be discovered and used at trial in the military commissions. The Secretary's signature on the memo ensured that he would be called as a witness. I told Mr. Haynes he could be sure that, at the end of what would be a long interrogation, the defense attorney would then refer the Secretary to the notation and ask whether it was not intended as a coded message, a written nod-and-a-wink to interrogators to the effect that they should not feel bound by the limits set in the memo, but consider themselves authorized to do what was necessary to obtain the necessary information. The memos, and the practices they authorized, threatened the entire military commission process.

Mr. Haynes listened attentively throughout. He promised to consider carefully what I had said.

I had entered the meeting believing that the December 2nd Memo was almost certainly not reflective of conscious policy but the product of oversight—a combination of too much work and too little time for careful legal analysis or measured consideration. I left confident that Mr. Haynes, upon reflecting on the abuse in Guantanamo and the flaws in the December 2 nd Memo and underlying legal analysis, would seek to correct these mistakes by obtaining the quick suspension of the authority to apply the interrogation techniques. 110

Mora left Washington the next day for a two-week family vacation. There would be no let-up in the interrogation, now in its second month: the day he left, in fact, interrogators moved to the next phase of the Special Interrogation Plan, introducing the ersatz detainee in a nearby cell in X-Ray; just before midnight that evening he was pinned to the floor by MPs while a female interrogator straddled his chest, taunting him. After five more days of 20 hours interrogations, exposure to frigid temperatures, and repeated “invasions of personal space by a female,” Qahtani would entreat interrogators to let him write his will. That same day, December 26, 2002, the Washington Post ran a front-page story by Dana Priest and Barton Gellman under the headline “U.S. Denies Abuse but Defends Interrogations: ‘Stress and Duress' Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities.” The article revealed the existence of secret CIA interrogation facilities at Bagram Air Base in Afghanistan, on the island of Diego Garcia in the Indian Ocean, and elsewhere where “those who refused to cooperate…are sometimes kept standing or kneeling for hours, in black hoods or spray painted goggles.” “At times they are held in awkward, painful positions and deprived of sleep with a 24-hour bombardment of lights—subject to what are known as “stress and duress,” Priest and Gellman reported. Sources described as witnesses to the interrogations described a process in which MPs and special forces troops “softened up” detainees with beatings and confined them in tiny rooms where they were “blindfolded and thrown into walls, bound in painful positions, subjected to loud noises and deprived of sleep”—a process supposedly aimed at “piercing a prisoner's resistance.”

In some cases, highly trained CIA officers question captives through interpreters. In others, the intelligence agency undertakes a “false flag” operation using fake décor and disguises meant to deceive a captive into thinking he is imprisoned in a country with a reputation for brutality, when, in reality, he is still in CIA hands. Sometimes, female officers conduct interrogations, a psychologically jarring experience for men reared in a conservative Muslim culture where women are never in control.111

Priest and Gellman quoted a number of unnamed administration “national security officials” who “defended the violence against captives as just and necessary”; one insisted “If you don't violate someone's human rights some of the time, you probably aren't doing your job.

The article revealed something else as well: in the fourteen months since the commencement of hostilities in Afghanistan , the U.S. had rendered nearly 100 detainees to Jordan , Egypt , Morocco , and Syria —precisely the kinds of countries whose torture methods are enumerated in the Manchester document. “We don't kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them” said one official who was described as being “directly involved in rendering captives into foreign hands.”

The CIA personnel running these operations had learned their methods in SERE technique trainings like the October “fiasco.” Three days after the Washington Post article ran, SERE trainers Rankin and Ross arrived in Guantánamo to teach many of these techniques to 24 of General Miller's GTMO interrogators. As Mora's vacation wound down, it was business as usual: anticipating the final phase of the Qahtani interrogation plan, the agenda for the January 7, 2003 National Security Council meeting included a discussion of the possible rendition of Qahtani to Egypt or Jordan . 112

Mora returned to the office on Friday, January 3. The following Monday, as he reported to Admiral Church,

6 Jan 03

NCIS director Brant informed me that the detainee mistreatment in Guantanamo was continuing and that he had not heard that the December 2nd Memo had been suspended or revoked. This came as an unpleasant surprise since I had been confident that the abusive activities would have been quickly ended once I brought them to the attention of higher levels within DOD. I began to wonder whether the adoption of the coercive interrogation techniques might not have been the product of simple oversight, as I had thought, but perhaps a policy consciously adopted—albeit through mistaken analysis—and enjoying at least some support within the Pentagon bureaucracy. To get them curbed I would have to develop a constituency within the Pentagon to do so.

Three days later, on January 9, 2002, Mora went back to Haynes:

I met with Mr. Haynes in his office again that afternoon. He was accompanied by an Air Force major whose name I cannot recall. I told him that I had been surprised to learn upon my return from vacation that the detainee abuses appeared to be continuing and that, from all appearances, the interrogation techniques authorized by the December 2nd Memo were still in place. I also provided him a draft copy of the Navy JAG legal memo.

Mr. Haynes did not explain what had happened during the interval, but said that some U.S. officials believed the techniques were necessary to obtain information from the few Guantanamo detainees who, it was thought, were involved in the 9/11 attacks and had knowledge of other al Qaeda operations planned against the United States. I acknowledged the ethical issues were difficult. I was not sure what my position would be in the classic “ticking bomb” scenario where the terrorist being interrogated had knowledge of, say, an imminent nuclear weapon attack against a U.S. city. If I were the interrogator involved, I would probably apply the torture myself, although I would do so with full knowledge of potentially severe personal consequences. But I did not feel this was the factual situation we faced in Guantanamo, and even if I were willing to do this as an individual and assume the personal consequences, by the same token I did not consider it appropriate for us to advocate for or cause the laws and values of our nation to be changed to render the activity lawful. Also, the threats against the United States came from many directions and had many different potential consequences. Does the threat by one common criminal against the life of one citizen justify torture or lesser mistreatment? If not, how many lives must the threat jeopardize? Where does one set the threshold, if at all? In any event, this was not for us to decide in the Pentagon; these were issues for national debate.

My recollection is that I raised the following additional points with Mr. Haynes:
•  The December 26th Washington Post article recounting allegations of prisoner mistreatment at Guantanamo and elsewhere demonstrated that the discontent of those in the military opposed to the practice was leaking to the media, as was inevitable.

•  Even if one wanted to authorize the U.S. military to conduct coercive interrogations, as was the case in Guantanamo, how could one do so without profoundly altering its core values and character? Societal education and military training inculcated in our soldiers American values adverse to mistreatment. Would we now have the military abandon these values altogether? Or would we create detachments of special guards and interrogators, who would be trained and kept separate from the other soldiers, to administer these practices?

•  The belief held by some that Guantanamo 's special jurisdictional situation would preclude a U.S. court finding jurisdiction to review events occurring there was questionable at best. The coercive interrogations in Guantanamo were not committed by rogue elements of the military acting without authority, a situation that may support a finding of lack of jurisdiction. In this situation, the authority and direction to engage in the practice issued from and was under review by the highest DOD authorities, including the Secretary of Defense. What precluded a federal district court from finding jurisdiction along the entire length of the chain of command?

•  The British government had applied virtually the same interrogation techniques against Irish Republican Army detainees in the ‘70s. Following an exhaustive investigation in which the testimony of hundreds of witnesses was taken, the European Commission of Human rights found the interrogation techniques to constitute torture. In Ireland v. United Kingdom , a later lawsuit brought by the victims of the interrogation techniques, the European court of Human Rights in a split decision held that the techniques did not rise to the level of torture, but did amount to “cruel, inhuman, and degrading” treatment, a practice that was equally in violation of European law and international human rights standards. The court awarded damages. Ultimately, the then-Prime Minister, standing in the well of Parliament, admitted that the government had used the techniques, forswore their further use, and announced further investigations and remedial training. This case was directly applicable to our situation for two reasons. First, because of the similarity between U.S. and U.K. jurisprudence, the case helped establish that the interrogation techniques authorized in the December 2 nd Memo constituted, at a minimum, cruel, inhuman, and degrading treatment. Further, depending on circumstances, the same treatment may constitute torture—treatment that may discomfit a prizefighter may be regarded as torture by a grandmother. Second, at present, British Prime Minister Tony Blair had lost significant electoral support and was under heavy political pressure because of his staunch support for the United States in the War on Terror and Operation Iraqi Freedom. What would be the impact on Blair's political standing upon the disclosure that his partner, the United States , was engaged in practices that were unlawful under British and European law? Could the British Government be precluded from continuing to cooperate with us on aspects of the War on Terror because doing so would abet illegal activity? Besides Blair, what impact would our actions have with respect to the willingness of other European leaders, all of whom are subject to the same law, to participate with us in the War on Terror?

•  A central element of American foreign policy for decades had been our support for human rights. By authorizing and practicing cruel, inhuman, and degrading treatment, we were now engaged in the same sort of practices that we routinely condemned. He we jettisoned our human rights policies? If not, could we continue to espouse them given our inconsistent behavior?

Mr. Haynes said little during our meeting. Frustrated by not having made much apparent headway, I told him that the interrogation policies could threaten Secretary Rumsfeld's tenure and could even damage the Presidency. “Protect your client.” I urged Mr. Haynes.

After the meeting, I reported back to Mr. Durnan by email (Att 9) Two sentences summarized my view of the meeting. Speaking of Mr. Haynes, I wrote: “He listened—as he always does—closely and intently to my arguments and promised to get back to me, but didn't say when. I've got no inkling what impact, if any, I made.113

Over the next six days, Mora met with Joint Chiefs legal advisor Jane Dalton, the Army and Air Force General Counsels, the Deputy General Counsel of the Defense Department, Undersecretary of the Navy Susan Livingstone, and Vice Admiral Kevin Green to make his case and build, as he put it, a constituency in the Pentagon for ending the abuse and repealing the Rumsfeld interrogation authorities. He also prepared to take his case, in writing, to a much wider audience. Finally, on January 15, 2003,

Uncertain whether there would be any change to the interrogation policy and dissatisfied at what I viewed as the slow pace of the discussions, I prepared a draft memorandum addressed to Mr. Haynes and CAPT Dalton (Att 12) providing my views on the JTF-170 October 11, 2002 request (contained as part of the December 2 nd Memo) requesting authority to engage in the counter-resistance interrogation techniques. My memo: (a) stated that the majority of the proposed category II and all of the category III techniques were violative of domestic and international legal norms in that they constituted, at a minimum, cruel and unusual treatment and, at worst, torture; (b) rejected the legal analysis and recommendations of the Beaver Legal Brief; and (c) “strongly non-concurred” with the adoption of the violative interrogation techniques. The memo further cautioned that even “the misperception that the U.S. Government authorizes or condones detention or interrogation practices that do not comply with our domestic and international legal obligations ... probably will cause significant harm to our national legal, political, military and diplomatic interests.”

Matthew Alexander 10/01/10: Here we have a civilian lawyer, with no military service background, having the courage to do what no other senior military member in the Pentagon was willing to do -- take a stand against torture. His actions were no less than heroic and will serve as an example of courageous dissent for future generations of Americans.

I delivered the memo in draft form to Mr. Haynes's office in the morning. In a telephone call, I told Mr. Haynes that I was increasingly uncomfortable as time passed because I had not put down in writing my views on the interrogation issues. I said I would be signing out the memo late that afternoon unless I heard definitively that use of the interrogation techniques had been or was being suspended. We agreed to meet later that day.

In the later meeting, which Mr. Dell'Orto attended, Mr. Haynes returned the draft to me. He asked whether I was not aware of how he felt about the issues or the impact of my actions. I responded that I did not and, with respect to his own views, I had no idea whether he agreed totally with my arguments, disagreed totally with them, or held an intermediate view. Mr. Haynes then said that Secretary Rumsfeld would be suspending the authority to apply the techniques that same day. I said I was delighted and would thus not be signing out my memo. Later in the day and after our meeting, Mr. Haynes called to confirm that Secretary Rumsfeld had suspended the techniques. I reported the news widely, including to the Under Secretary (Att 13) and VADM Green (Att 14).

On that day, the Special Interrogation of Mohammed al Qahtani came to an end. As interrogation experts had predicted for months, the sustained use of techniques that the U.S. long condemned as torture had failed. After seven weeks, the interrogation was at a standstill, but there would be no final phase, no rendition.
    Footnotes
  1. 1. “The Manchester Document, Seventeenth Lesson, Interrogation and Investigation,” available at http://www.thesmokinggun.com/archive/jihad17chap1.html
  2. 2. Manchester Document, 2
  3. 3. Manchester Document, 8-9
  4. 4. Manchester Document, 11-12
  5. 5. Donna Miles, “Al Qaeda Manual Drives Detainee Behavior at Guantanamo Bay ,” American Forces Press Services, June 29, 2005, available at http://www.defense.gov/news/newsarticle.aspx?id=16270
  6. 6. United States Senate Armed Services Committee Report, “Inquiry into the Treatment of Detainees in U.S. Custody,” November 20, 2008, 6-7, available at http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_... As they were completing their draft, John Yoo and Robert Delahunty, Special Counsel to Defense Department General Counsel William J. “Jim” Haynes II, were finalizing a legal opinion titled “Application of Treaties and Laws to al Qaeda and Taliban Detainees,” a document concluding that neither al Qaeda nor Taliban captives were entitled to Geneva Convention protections. On January 6, 2002, three days before they submitted their opinion to Haynes, the Pentagon ordered the navy to refurbish an abandoned complex of chain link pens that had been built to house Haitian refugees at the naval base in Guantánamo Bay in the early 1990s, and to have the camp ready to receive up to 100 detainees in four days.Department of Justice Office of the Inspector General Report, “A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq,” May 2008, 27, available at www.justice.gov/oig/special/s0805/final.pdf
  7. 7. Department of Defense News Briefing, Secretary Rumsfeld and Gen. Myers, January 11, 2002, available at http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2031
  8. 8. January 11, 2002 DoD News Briefing
  9. 9. Senate Armed Services Committee report, 1-2
  10. 10. Memorandum of President of George W. Bush, “Humane Treatment of Taliban and al Qaeda Detainees,” available at http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf
  11. 11. DOJ OIG Witness Interviews, 787, available at http://www.aclu.org/files/pdfs/natsec/dojfbi20100514/55_interview1_5pp.pdf
  12. 12. Weight records of Mohammed al-Qahtani available at http://www.dod.gov/pubs/foi/detainees/measurements/ISN_058-ISN_121.pdf
  13. 13. DOJ OIG Witness Interviews, 85, available at http://www.aclu.org/files/pdfs/natsec/dojfbi20100514/08_interview1_or_in...
  14. 14. DOJ OIG Witness Interviews, 400, available at http://www.aclu.org/files/pdfs/natsec/dojfbi20100514/24_interview1_or_in...
  15. 15. DOJ OIG report, 183
  16. 16. Central Intelligence Agency Directorate of Operations, Technical Services Division, Communist Control Techniques: An Analysis of the Methods Used by Communist State Police in the Arrest, Interrogation, and Indoctrination of Persons Regarded as “Enemies of the State, 25-26, available at http://dspace.wrlc.org/doc/bitstream/2041/70937/00064_560402display.pdf
  17. 17. Albert D. Biderman, “Communist Attempts to Elicit False Confessions From Air Force Prisoners of War,” Bulletin of the New York Academy of Medicine, September 1957, 620-621, available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1806204/
  18. 18. Senate Armed Services Committee report, 7-8
  19. 19. Senate Armed Services Committee Report, 9
  20. 20. Senate Armed Services Committee report, 9
  21. 21. Senate Armed Services Committee report, 11
  22. 22. “Summarized Witness Statement of MG (Retired) Mike Dunlavey,” available at http://www.aclu.org/pdfs/safefree/dod_release_07022009.pdf, 9-15
  23. 23. Summarized Witness Statement, Mike Dunlavey
  24. 24. Interview with Rick Baccus, “The Torture Question,” Frontline, August 27, 2005, available at http://www.pbs.org/wgbh/pages/frontline/torture/interviews/baccus.html
  25. 25. Memorandum Opinion, Abdah et al v. Obama 2010 WL 3270761 (D.D.C.), available https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1254-873
  26. 26. Tim Golden and Don Van Natta, Jr., “U.S. Said to Overstate Value of Guantánamo Detainees,” The New York Times, June 21, 2004, available at http://www.nytimes.com/2004/06/21/politics/21GITM.html
  27. 27. Army Spc. Shanita Simmons, “Manchester Manual the Code of Conduct for terrorism,” August 14, 2007, available at http://www.jtfgtmo.southcom.mil/storyarchive/2007/August/081407-2-manman...
  28. 28. January 11, 2002 DoD News Briefing
  29. 29. Senate Armed Services Committee report, 41.
  30. 30. Senate Armed Services Committee Report, 41
  31. 31. Senate Armed Services Committee report, 39
  32. 32. DOJ OIG report, 181, 204
  33. 33. DOJ OIG report, 78
  34. 34. DOJ OIG Witness Interviews, July 30, 2010 release, 1000, available at www.aclu.org/pdfs/natsec/DOJOIGFOIA_CasemapInterviewSummaries_07302010re...
  35. 35. See Chapter Two, “Experimenting With Torture”
  36. 36. DOJ OIG Witness Interviews, 300, available at http://www.aclu.org/files/pdfs/natsec/dojfbi20100514/21_interview2_8pp.pdf
  37. 37. DOJ OIG Witness Interviews, 300
  38. 38. DOJ OIG report, 81
  39. 39. DOG OIG Witness Interviews, 300. In its 1956 Study “Communist Control Techniques,” CIA researches documented the effects of isolation regimens on prisoners. After four to six weeks in isolation, prisoners weep, mutter, pray aloud in their cells, and follow the orders of guards “with the docility of a trained animal.” Ultimately, “Some prisoners may become delirious and have visual hallucinations. God may appear to such a prisoner and tell him to cooperate with his interrogator. He may see his wife standing beside him…If he is given an opportunity to talk, he may say anything which seems to be appropriate, or to be desired by his listener; for in his confused and befuddled state he may be unable to tell what is ‘actually true' from what ‘might be' or ‘should be' true. He may be highly suggestible and may ‘confabulate' the details of any story suggested to him….[Some prisoners,] especially those with pre-existing personality disturbances, may become frankly psychotic. However, frank psychotic manifestations, other than those of the ‘prison psychosis' described above, are not usual, primarily because those having charge of the prisoners usually break the routine of total isolation when they see that disorganization of the prisoner's personality is imminent.”
  40. 40. DOJ OIG report, 82, and OIG Witness Interviews, 300
  41. 41. Senate Armed Services Committee report, 24-29
  42. 42. Bob Drogin, “No Leaders of Al Qaeda Found at Guantanamo , Los Angeles Times , August 18, 2002, available at http://articles.latimes.com/2002/aug/18/nation/na-gitmo18
  43. 43. Declaration of Colonel Lawrence B. Wilkerson (Ret.), Adel Hassan Hamad v. George Bush et al, [cite, CV 05-1009], 4-5, available at http://www.truthout.org/files/Wilkerson.pdf
  44. 44. Julian Borger, “‘Soft' Guantanamo chief ousted, The Guardian , October 16, 2002, available at http://www.guardian.co.uk/world/2002/oct/16/usa.afghanistan
  45. 45. Senate Armed Services Committee Report, 43
  46. 46. Memorandum for Record from Col. Brittain Mallow, xx September 2002, available at http://www.aclu.org/files/projects/foiasearch/pdf/DOD045174.pdf
  47. 47. Percival later told the Senate Armed Services Committee that at the July 2002 CIA training, Witsch “acted as the ‘beater' while he was the ‘beatee.'” Senate Armed Services Committee Report, 22
  48. 48. Senate Armed Services Committee Report, 47
  49. 49. Senate Armed Services Committee, 48
  50. 50. DOJ OIG report, 82
  51. 51. Senate Armed Services Committee report, 58
  52. 52. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration , W.W Norton & Company, 2007
  53. 53. Senate Armed Service Report, 49
  54. 54. DOJ OIG Witness Interviews, 495, available at http://www.aclu.org/files/pdfs/natsec/dojfbi20100514/32_interview1_or_in...
  55. 55. OIG DOJ Witness Interviews, 495
  56. 56. FBI email, October 1, 2002, available at www.aclu.org/pdfs/natsec/DOJOIG07036.pdf
  57. 57. AR15-6, #40
  58. 58. Senate Armed Services Committee, 50
  59. 59. Senate Armed Services Committee report, 52
  60. 60. October 2, 2002 Meeting Minutes, available at http://www.torturingdemocracy.org/documents/20021002.pdf
  61. 61. October 2, 2002 Meeting Minutes
  62. 62. email from Mark Fallon to Sam McCahon, October 28, 2002, available at http://www.torturingdemocracy.org/documents/20021002.pdf
  63. 63. Senate Armed Services Committee report, 57
  64. 64. DOJ OIG, 83-84. Qahtani, when he was interviewed by the OIG, described how a dog was used “as a tool to intimidate him” during the interrogation. He said that the dog was not ordered to attack him, but rather was walked around the interrogation room and allowed to get very close to him, barking and growling the whole time. Qahtani said the dog tried to bite him but was restrained by its handler.
  65. 65. FBI email, October 8, 2002, available at www.aclu.org/pdfs/natsec/DOJOIG06961.pdf
  66. 66. Senate Armed Services Committee report, 61
  67. 67. Memorandum from MG Michael E. Dunlavey, “Counter-Resistance Strategies,” October 11, 2002, available at http://www.defenselink.mil/news/Jun2004/d20040622doc3.pdf
  68. 68. Memorandum from Lieutenant Colonel Diane Beaver, “Legal Brief on Proposed Counter-Resistance Strategies,” available at http://www.defenselink.mil/news/Jun2004/d20040622doc3.pdf
  69. 69. “Legal Brief on Proposed Counter-Resistance Strategies,” 5-6
  70. 70. “Legal Brief on Proposed Counter-Resistance Strategies,” 5
  71. 71. Senate Armed Services Committee report, 96
  72. 72. Memorandum from General James T. Hill to Chair, Joint Chiefs of Staff, October 25, 2002, available at http://www.torturingdemocracy.org/documents/20021025.pdf
  73. 73. Army Inspector General interview of Lieutenant Colonel Mark Gingras, quoted in Senate Armed Services Committee report, 67
  74. 74. Senate Armed Services Committee report, 67-69
  75. 75. Senate Armed Services Committee report, 72
  76. 76. Senate Armed Services Committee Report, 71
  77. 77. See DOJ OIG report, 191-192 and DOJ OIG Witness Interviews, 442, available at http://www.aclu.org/files/pdfs/natsec/dojfbi20100514/26_interview1_or_in...
  78. 78. DOJ OIG report, 106
  79. 79. DOJ OIG report, 110
  80. 80. DOJ OIG report, 86
  81. 81. DOJ OIG report, 86
  82. 82. DOJ OIG report, 113-115
  83. 83. DOJ OIG report, 115
  84. 84. see Julian Borger, “Soft” Guantanamo chief ousted,” The Guardian , October 16, 2002, available at http://www.guardian.co.uk/world/2002/oct/16/usa.afghanistan/print
  85. 85. Senate Armed Services Committee report, 76
  86. 86. See Senate Armed Services Committee report, 75-78 and DOJ OIG report, 87-88
  87. 87. Senate Armed Services Committee report, 76
  88. 88. Senate Armed Services Committee report, 78
  89. 89. See Senate Armed Services Committee report, 78-79, and DOJ OIG report, 88-89
  90. 90. DOJ OIG report, 88. While the FBI adamantly opposed the rendition plan, its position was clouded by the fact that since September some FBI personnel had been suggesting that Qahtani be sent from Guantánamo to a CIA black site for interrogation. In the course of his 2008 investigation, the Justice Department's Inspector General uncovered a draft of a letter that was to be sent by Attorney General John Ashcroft to the National Security Council proposing the move so that Qahtani could be “debriefed by highly knowledgeable personnel, and dissemination regarding the results of these debriefings would be released to the appropriate U.S. intelligence entities expeditiously. The proposal evidently was developed around the time the military took over Qahtani's interrogation, and seems to have been part of a strategy the FBI devised with Chertoff, Ashcroft, and Thompson to remove Qahtani's interrogation from the military's control. The letter was never finalized or sent. See DOJ OIG report, 93-101
  91. 91. DOJ OIG report, 89
  92. 92. DOJ OIG report, 90-91
  93. 93. FBI email, date redacted, available at www.aclu.org/pdfs/natsec/DOJOIG007034.pdf
  94. 94. DOJ OIG report, 91; FBI email to Marion Bowman et al “To document BAU assistance and challenges encountered during TDY assignment in Guantanamo Bay, May 30, 2003, available at http://action.aclu.org/torturefoia/released/022306/1261.pdf
  95. 95. Senate Armed Services Committee report, 83
  96. 96. Senate Armed Services Committee report, 83
  97. 97. Senate Armed Services Committee report, 87
  98. 98. FBI email to Major General Geoffrey Miller, November 21, 2002, available at www.aclu.org/pdfs/natsec/admin_of_torture_p139.pdf
  99. 99. Senate Armed Services Committee report, 81
  100. 100. Weight records of Mohammed al-Qahtani available at http://www.dod.gov/pubs/foi/detainees/measurements/ISN_058-ISN_121.pdf
  101. 101. Senate Armed Services Committee report, 88
  102. 102. Senate Armed Services Committee report, 87
  103. 103. Senate Armed Services Committee report, 85
  104. 104. Facsimile of memo available at www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.12.02.pdf
  105. 105. Senate Armed Services Committee report, 98
  106. 106. Senate Armed Services Committee report, 91-94
  107. 107. After Action Report of SERE Training Specialist John F. Rankin, January 15, 2003, available at http://www.torturingdemocracy.org/documents/20030115-4.pdf
  108. 108. Alberto Mora, Statement for the Record: Office of General Counsel Involvement in Interrogation Issues, available at http://www.newyorker.com/images/pdf/2006/02/27/moramemo.pdf
  109. 109. Jane Mayer, “The Memo,” The New Yorker, February 27, 2006, available at http://www.newyorker.com/archive/2006/02/27/060227fa_fact
  110. 110. Alberto Mora, Statement for the Record
  111. 111. Dana Priest and Barton Gellman, “U.S. Decries Abuse but Defends Interrogations, The Washington Post , December 26, 2002, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/06/09/AR200606...
  112. 112. DOJ OIG report, 94. An attachment to the agenda included a note claiming that Qahtani's ongoing interrogation was now producing intelligence and so rendition “may not be appropriate.”
  113. 113. Alberto Mora, Statement for the Record

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