Chapter 5, Part 3 - The Battle Lab

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Force Drift

Donald Rumsfeld's January 15, 2003 memorandum suspending the interrogation techniques to which Qahtani had been subjected read,

My December 2, 2002 approval of the use of all Category II techniques and one Category III technique during interrogations at Guantanamo is hereby rescinded. Should you determine that particular techniques in either of these categories are warranted in an individual case, you should forward that request to me. Such a request should include a thorough justification for the employment of those techniques and a detailed plan for the use of such techniques.1

The day after Rumsfeld signed this rescission memo, General Miller's JTF-GTMO interrogators issued a draft interrogation plan titled “Methods and Approaches to Employ, Special Interrogation Operation of ISN 760,” in which they proposed submitting a 32 year-old Mauritanian detainee named Mohamedou Ould Slahi to an ordeal very similar to the one Qahtani had suffered. Slahi was to face 20-hour interrogations, during which interrogators would douse him with water to keep him awake and “enforce control.” Military dogs would be used “to agitate the detainee and provide shock value.” He would wear signs saying “liar,” “coward,” and “dog” and be forced to perform dog tricks “to reduce the detainee's ego.” He would be forcibly shaved, strip-searched, and made to wear a burka. He would be refused opportunities to pray, and interrogators would exploit “religious taboos” like “close physical contact” with female interrogators to raise his stress level. Moreover, because Slahi “believes music is forbidden,” his interrogation booth—“a bare white room designed to reduce outside stimuli and present an austere environment”—would be flooded with loud music and lurid red lighting; at other times, a strobe light would be used to “disorient [Slahi] and add to [his] stress level,” or he would be hooded “to isolate him and increase his stress level.”2

Ten months before, on March 6, 2002, CNN ran a story headlined “Al Qaeda Online for Terrorism” that featured an interview with a man who correspondent Mike Boettcher introduced as a “hacker” “who operates an Internet monitoring service from this Spartan loft in Zurich Switzerland”; in Guido Rudolphi's hands, Boettcher told viewers, “a keyboard can be a digital crime lab.” Rudolphi, Boettcher said, was a private citizen who had been conducting a kind of free-lance investigation since the 9/11 attacks and had stumbled upon Slahi.

First, he tracked down a classified French secret service report on bin Laden, including a secret list of suspected bin Laden associates. One name in particular caught Rudolphi's eye, a Mauritanian named Mohambedou Ould Slahi. Rudolphi became curious because Slahi operated an Internet site through a Swiss web space provider….Rudolphi discovered Slahi had twice been brought in for questioning during the investigation of two al Qaeda plots: the failed plan to blow up Los Angeles International Airport during the millennium celebration, and the successful September 11 attacks. Each time, Slahi had been released.”3

According to Boettcher, “by cracking a code on Slahi's website,” Rudolphi found a digital trail leading to Duisberg, Germany, where Slahi had contact with several 9/11 hijackers, and then to Canada, “where he attended the same mosque” as Millennium bomb plotter Ahman Ressam, was questioned by Canadian intelligence after Ressam's arrest, and days later “fled.” The story continued,

RUDOLPHI: We were able to locate him…

BOETTCHER: Geuido Rudolphi and his colleagues were able to find Slahi using the web. They tracked him to his native country of Mauritania, in West Africa, where Slahi operates an Internet café, another fact that raised Rudolphi's suspicion.

RUDOLPHI: If I want to use the Internet on a really sensitive matter, and under no circumstances want to run the risk that anybody can trace me back, I go to the Internet café.

BOETTCHER: Or public libraries, where some of the September 11 th hijackers went to access the Internet

(on camera): What did you do with this information when you saw it and thought it looked suspicious?

RUDOLPHI: First, I got in contact with the Swiss police. They were interested, but since then, I never heard back.

BOETTCHER: (voice-over) But other law enforcement and intelligence agencies did have Slahi on their radar. Last September, the Mauritanian government detained and questioned Slahi at the request of the FBI, then released him. The FBI will not comment on Slahi.

As far as we know, Mohambedou Ould Slahi is still in Mauritania. Not only did we try to contact him via the Internet or via fax, we had personal CNN representatives on the ground go to his family and friends to try to deliver a message to him that we wanted to speak to him. And in all cases we got nowhere. 4

Had CNN reporters actually contacted Slahi's family in Mauritania , they would have learned that a little over three months before, on November 20, 2001, Mauritanian police had come calling for Slahi. It was five o'clock in the evening, and he had just returned from work; he was in the shower when police arrived. They asked him to accompany them to the police station. Slahi was indeed used to being questioned by law enforcement and had always submitted willingly, and this time, too, he followed the police in his own car, telling his mother when he left home not to worry, he would return soon. He was never arrested. He also never returned. He was questioned for a week by Mauritanian officials and FBI agents, and on the eighth day, November 28, 2001, the U.S. took custody of Slahi, put him on a CIA rendition flight, and delivered him to a prison in Jordan.5

The Jordanians worked to connect Slahi with Ahmed Ressam. “Your government captured me for the wrong reasons; they thought I was part of the millennium plot,” Slahi told the Military Commission at his CSRT hearing in Guantánamo late in 2004. “In Jordan, they made me crazy to admit I had something to do with it. Because there was so much pressure and bad treatment, I admitted to this. Your intelligence later realized this was not true and a mistake.” On July19, 2002, after eight months in Jordan, a team of masked men retrieved Slahi. At his Administrative Review Board hearing two years later, Slahi recalled,

They took my clothes off and I said this is an American technique not an Arabic one because Arabs don't usually take all your clothes off. So they stripped me naked like my mom bore me, and they put new clothes on me. The guy moved his mask a little bit and I could see he was pale and that way I knew he was American. It was like I know my life is God's, I didn't want my family to see me in such a condition on T.V. because I know Americans are about T.V. media. I did not want them to take my picture. I was in chains, a very bad suit, I had lost so much weight in Jordan I was like a ghost and I did not want my family to see me in this situation, that was my worst fear in the world. Besides that I had to keep my water (could not go to the restroom) for eight hours straight. Because the Americans [had me put] in a diaper but psychologically I couldn't [urinate] in the diaper. I tried to convince myself it was okay but I couldn't.

The leased CIA rendition jet flew Slahi from Amman to Kabul, where he was helicoptered and trucked on to Bagram. He was delivered to Guantánamo a month later, on August 14, 2002.6

Throughout the fall, as the military was gaining control of Qahtani's interrogation, Criminal Investigation Task Force agents managed to keep Slahi out of the hands of JTF interrogators. He was questioned by CITF investigator Britt Mallow, by three German intelligence agents, and by an FBI team, one agent in particular who reportedly managed to gain his trust. But by January, despite the service-wide outcry against the Qahtani interrogation and the apparent success of Mora's rebellion, General Miller's interrogators were now planning more of the same with Slahi. Indeed, Rumsfeld's rescission memo had little effect on the base. In a meeting with General Miller two days after the memo was issued, CITF Deputy Commander Mark Fallon and Naval Criminal Investigation Service Chief Psychologist Michael Gelles pressed investigators' concerns about abusive interrogations. Miller—who had lobbied to continue Qahtani's interrogation even after Rumsfeld's memo was suspended—told the two “you have got to put on the same jersey if you want to be on the team.”7 An FBI agent who arrived in Cuba the day Qahtani's interrogation ended later recalled discussing interrogation methods with a psychiatrist from Walter Reed hospital who was on the base to consult with JTF-GTMO; “rapport building [is] for tree huggers,” the psychiatrist told her.8

***

Rumsfeld issued a second memo on January 15, 2003, this one to his chief counsel Jim Haynes, directing him to “Establish a working group within the Department of Defense to assess the legal, policy, and operational issues relating to the interrogations of detainees held by the U.S. Armed Forces in the war on terrorism.” It instructed,

The working group should consist of experts from your Office, the Office of the Under Secretary of Defense for Policy, the Military Departments, and the Joint Staff. The working group should address and make recommendations as warranted on the following issues:

Legal considerations raised by interrogation of detainees held by U.S. Armed Forces.

Policy considerations with respect to the choice of interrogation techniques, including:
•  contribution to intelligence collection

•  effect on treatment of captured US military personnel

•  historical role of US armed forces in conducting interrogations

Recommendations for employment of particular interrogation techniques by DoD interrogators.

You should report your assessment and recommendations to me within 15 days.9

Alberto Mora was assigned to this Working Group, as were the general counsels of the Army and Air Force, the Judge Advocates General of the three services, and the staff judge advocate of the Marines. The Joint Chiefs had two representatives, including Legal Counsel Jane Dalton, and Doug Feith, Undersecretary of Defense for Policy, had one. Haynes appointed Air Force General Counsel Mary Walker to chair the group.

Mora went to work immediately to develop information and legal analyses that the group could use to counter what he knew was coming: another John Yoo memorandum, one that Haynes informed the group would provide the “definitive guidance” for Defense Department interrogations. He assigned Navy attorneys to write a paper on the applicability of the 5 th , 8 th , and 14 th Amendments of the Constitution, and on January 17, 2003, he met with Gelles and Fallon. As he recorded in his memorandum for the record,

In the meeting, I mentioned my concern that simple opposition to the use of the coercive interrogation techniques may not be sufficient to prevail in the impending bureaucratic reexamination of which procedures to authorize. We couldn't fight something with nothing; was there anything in the scientific or academic literature that would support the use of non-coercive interrogation techniques? Dr. Gelles replied that there was. Most behavioral experts working in the field, he said, viewed torture as illegal, but also as ineffective. The weight of expert opinion held that the most effective interrogation techniques to employ against individuals with the psychological profile of the al Qaeda or Taliban detainees were “relationship-based,” that is, they relied on the mutual trust achieved in the course of developing a non-coercive relationship to break down the detainee's resistance to interrogation. Coercive interrogations, said Dr. Gelles, were counter-productive to the implementation of relationship-based strategies.

At my direction, Dr. Gelles began the preparation of two memos, the first to be a summary of the thesis intended to be injected as quickly as possible into the Working Group and inter-agency deliberations, and the second a comprehensive discussion of the subject.10

At the Working Group's first meeting on January 23, 2003, David Becker, formerly JTF GTMO's Interrogations Chief and now a civilian employee of the Defense Intelligence Agency, was asked to present the specific techniques DIA wanted the group to consider. Becker drew up a list of 36 techniques: the standard techniques in the Army Field Manual; the Category II and all four of the Category III techniques from General Dunlavey's October 11, 2002 request memo, including mock executions and other threats to the detainee or his family, exposure to cold and water dousing, simulating drowning, and mild, non-injurious physical contact; and three new, “less common” techniques:11

[1] Use of Drugs: Drugs such as sodium pentothal and demerol may be used with some effectiveness. Significant policy issues must be resolved. [2] Use of Female Interrogators: One al-Qaida resistance method is to pray during interrogations. Prayer is only allowed if the detainee is ‘clean.' Having a woman rub scented oil on the detainee's arms and face makes the detainee perceive that he is unclean and he cannot pray until he cleans himself, which he is unable to do until he returns to his cell. The use of female interrogators to put oil on a detainee does not exceed limits already established by DoD policy or the Geneva Conventions. [3] Sleep Deprivation: This can be effective; however, there are obvious policy considerations. Guidelines as to the use of sleep deprivation would have to be established.12

The Working Group received input from two other sources. General Miller submitted a memo titled “Effectiveness of the Use of Certain Category II Counter-Resistance Strategies” that described the techniques used in the Qahtani interrogation as “essential to mission success.” “These techniques are humane, whether employed singly or in combination over a period of time and are within the spirit and intent of humane detention,” Miller asserted. “After consultation with the Staff Judge Advocate I believe they are not in violation of the 8 th Amendment of the United States Constitution prohibiting cruel and unusual punishment; or Title 18 of the United States Code, Section 2340 et seq. (the Federal Torture Statute)”13

The group also received a list of requested techniques from Afghanistan. When the Justice Department's Inspector General was investigating the FBI's involvement in detainee abuse in Guantánamo, Afghanistan, and Iraq, one of its investigators recorded in his debriefing notes that an FBI agent he was interviewing, after describing Qahtani's interrogation, stated that “Camp X-ray was locally where harsh techniques were used,” but “if you think this is tough, you should see what's happening in Afghanistan.” The memo the Deputy Staff Judge Advocate of Afghanistan's CJTF-180 submitted to the Working Group on January 24, 2003 made clear that Category II and III techniques were in common use there, in addition to five others he was recommending be added to the list: “deprivation of clothing” for the purposes of placing detainees in a “shameful, uncomfortable situation”; “food deprivation”; “sensory overload—loud music or temperature regulation”; “controlled fear through the use of muzzled, trained, military working dogs”; and “use of light and noise deprivation.”14

The Working Group also returned to the source of abusive methods, requesting information about the techniques directly from the Joint Personnel Recovery Agency and SERE instructors. By now, though, JPRA had grown skittish about the proliferating use of SERE-based interrogations and stalled, referring the group to information it had already provided to Haynes and the DIA. SERE instructor Joseph Witsch wrote to Daniel Baumgartner, the JPRA's Chief of Staff, alarmed. “The physical and psychological pressures we apply in training violate national and international laws,” Witsch wrote in an email at the end of January. “We are only allowed to do these things based on permission from DOD management and intense oversight by numerous organizations within DOD. I hope someone is explaining this to all these folks asking for our techniques and methodology.” Like Mora, Witsch clearly foresaw dangers of “force drift.” “What do you think is more likely to happen when one of these organizations gets exposed and because of the significant ‘drift' and a lack of oversight they go beyond what we do at SERE schools?” he asked. “The first question will be ‘Where did you get your guidance?' Then we get investigated and exposed.” “This is getting out of control!!” he concluded.15

The Working Group had specifically been instructed to “address and make recommendations” on the “legal considerations raised by interrogation of detainees held by U.S. Armed Forces,” and by January 25, 2003, Mora, Dalton, and the rest of the group had produced a “Survey of Legal and Policy Considerations” to serve as the framework for evaluating the individual techniques. The Senate Armed Services Committee, which was allowed to review that document but not to keep a copy, found

The draft reviewed U.S. obligations under international law and concluded that “obligations under the Torture Convention…apply to the interrogation of Operation Enduring Freedom detainees…” The draft analysis also included a review of articles of the UCMJ and the U.S. legal standards that were potentially applicable to U.S. interrogators….

The draft analysis also assessed the legality of the techniques that had been requested for approval by GTMO in October 2002 including some of those that the Secretary of Defense had approved for use at GTMO in December 2002. In its draft, the Working Group adopted the conclusion that Navy JAG Corps CDR Stephen Gallotta had reached in his January 9, 2003 memo, writing that:
Category III techniques that threaten death to the detainee or his family (#1) or which create the misapprehension of suffocation (#3) would likely be judged to constitute torture under the statute and customary international law. They reflect conduct specifically defined as torture in [18 U.S.C.] §2340 and recognized as torture in international law. Category III, technique #4, mild, non-injurious grabbing and poking, is an assault under the UCMJ. Absent lawful purposes [defined elsewhere as inherent and necessary to custodial conduct], these techniques may be per se unlawful.

Category II techniques [] could also, depending in their implementation, i.e., frequency of use, degree of pain inflicted, or combinations of techniques, rise to a level where they could be determined to be torture. Thus, additional analysis with specific guidance for implementation is recommended.16

But Working Group chair Mary Walker already had in hand a draft of Yoo's new memorandum, addressed to Haynes and with the subject line “Military Interrogations of Alien Unlawful Combatants Held Outside the United States.” The 81-page memo dismissed almost every level of domestic and international legal restraint on the treatment of detainees in military custody. The Fifth and Eighth Amendments do not apply to interrogations outside the U.S. The War Crimes Act is not in force because al Qaeda and Taliban detainees are not protected by the Geneva Conventions. The torture statute, which codifies the Convention Against Torture in U.S. law, does not apply on U.S. territory or permanent military bases outside the U.S. Even if any of these prohibitions did apply, they were trumped by the president's absolute power to conduct war as Commander in Chief. If, for example, customary international law bans cruel, inhuman, and degrading treatment, “the President may decide to override customary international law at his discretion.” And if the president ordered torture, “such an order would amount to a suspension or termination of the Convention [Against Torture]. In so doing, the President's order and the resulting conduct would not be a violation of international law because the United States would no longer be bound by the treaty.”17

“Although the lengthy memo covered many issues and did so with seeming sophistication,” Mora recalled in his 2004 Statement for the Record, “I regarded it as profoundly in error in at least two central elements.”

First, the memo explicitly held that the application of cruel, inhuman, and degrading treatment to the Guantanamo detainees was authorized with few restrictions or conditions. This, I felt, was a clearly erroneous conclusion that was at variance with applicable law, both domestic and international, and trends in constitutional jurisprudence, particularly those dealing with the 8 th Amendment protections against cruel and unusual punishment and 14 th Amendment substantive due process protections that prohibited conduct “shocking to the conscience.” And second, the memo espoused an extreme and virtually unlimited theory of the extent of the President's commander-in-chief authority….In summary, the OLC memo proved a vastly more sophisticated version of the Beaver Legal Brief, but it was a much more dangerous document because the statutory requirement that OLC opinions are binding provided much more weight to its virtually equivalent conclusions.”18

The Working Group was not silent about its objections. Yoo and memo co-author Jennifer Koester, an OLC staff attorney two years out of law school, attended Working Group meetings from the outset, and Koester—whose name is redacted throughout the July 29, 2009 Justice Department's Office of Professional Responsibility report summarizing its investigation into the Bush administration's OLC memos but inadvertently appears in a footnote—got an earful when she met with members of the group on January 28, 2003 and summarized the Yoo memo's conclusions. “Several members of the Working Group were highly critical of the advice provided by Yoo and [Koester],” the OPR reported. After the meeting, according to the OPR report,

She reported back to Yoo by email that some members of the Working Group expressed concern that:
•  the commander-in-chief section sweeps too broadly

•  the necessity defense sweeps too broadly and doesn't make clear enough that it would not apply in all factual scenarios

•  the c-in-c argument (as with other defenses) is a violation of our international obligations.

[Koester] added that she was “not worried about the first two concerns but with respect to the third, I pointed them to national right of self-defense but I sense serious skepticism.” Yoo responded that she should keep “plugging away” and that they would address the concerns in the editing process.

Yoo told us that he had “a lot of arguments” with members of the Working Group who disagreed with OLC's analysis. According to Yoo, he generally responded by pointing out that the criticism involved matters of policy, not legal analysis. 19

In fact, there was no substantive editing process. Two days after the meeting with Koester, Walker emailed Mora objecting to his efforts to correct the memo's 8 th Amendment analysis. Mora, who would call the Yoo memo “a travesty of applicable law” in later testimony before the Armed Services Committee, wrote back to Walker warning that “The OLC draft paper is fundamentally in error: it spots some of the legal trees, but misses the constitutional forest. Because it identifies no boundaries to action—more, it alleges there are none—it is virtually useless as guidance as now drafted and dangerous in that it might give some a false sense of comfort.” The reply was categorical: “Ms. Walker's response dismissed my warning. ‘I disagree and moreover I believe DOD GC [Haynes] disagrees.'”20 “There was a point where we were told that we could not argue against the OLC opinion…that any other legal ideas that we had would not be accepted, particularly when we commented on the draft report,” Joint Chiefs legal counsel Captain Jane Dalton told the Committee 21

By early February, Walker was circulating a draft of what would become the group's report and recommendations; titled “Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal Historical, Policy, and Operational Considerations,” the report incorporated Yoo's legal analysis and applied it, in a literal, vivid red light-green light grid, to Becker's list of 36 techniques. Decisions on whether to “green light” a technique would be made in the framework of Yoo's vision of near-limitless presidential power and expediency; the process was “essentially a risk benefit analysis that generally takes into account the expected utility of the technique, the likelihood that any technique will be in violation of domestic or international law, and various policy considerations.” The second consideration was clearly subordinate to the first and third: “the lawfulness of the application of any particular technique, or combination of techniques, may depend on the practical necessity for imposition of the more exceptional techniques,” and “legal justification for action that could otherwise be unlawful…depends in large part on whether the specific circumstances would justify the imposition of more aggressive techniques.”22

Early drafts of the report juxtaposed a column labeled “Utility” (all rated “high” save for silence and threatened transfer to a third country, which were “medium”) with four columns representing bodies of relevant law: the Torture Convention's ban on torture; its prohibition on cruel, inhuman, and degrading treatment; U.S. domestic law; and Customary International Law. The last column, a “very angry” Jane Dalton told the Senate Armed Services Committee, provided a particularly graphic example of how the working group process was “geared toward a particular conclusion” that was preordained by the White House via the OLC memo:

[T]here was a column originally…in the stoplight chart, that was labeled “Customary International Law.” So one of the things we were supposed to assess was whether or not the techniques were consistent with customary international law. The stoplight chart had all 36 techniques green under customary international law because the OLC opinion and thus the Working Group report maintained that customary international law did not impose any constraints on the actions…That green light was absolutely wrong legally…it was embarrassing to have it in there, and one of my comments to the report was…You need to delete that column entirely because it's embarrassing to have it in there and it's not reflective of the law.23

But Dalton and Mora were bucking an administration that had come to specialize in gearing information to a particular conclusion, regardless of facts or internal dissent; worse, it was an administration deeply invested in torture as a means of corroborating its conclusions. The Working Group had been presented with the first draft of its “Final Report” on February 4, 2003. The next day, Secretary of State Colin Powell appeared before the United Nations Security Council to present the case for invading Iraq. In that speech, Powell told the world,

Al Qaida continues to have a deep interest in acquiring weapons of mass destruction. As with the story of Zarqawi and his network, I can trace the story of a senior terrorist operative telling how Iraq provided training in these weapons to Al Qaida.

Fortunately, this operative is now detained, and he has told his story. I will relate it to you now as he, himself, described it.

This senior Al Qaida terrorist was responsible for one of Al Qaida's training camps in Afghanistan. His information comes first-hand from his personal involvement at senior levels of Al Qaida. He says bin Laden and his top deputy in Afghanistan, deceased Al Qaida leader Muhammad Atta, did not believe that Al Qaida labs in Afghanistan were capable enough to manufacture these chemical or biological agents. They needed to go somewhere else. They had to look outside of Afghanistan for help. Where did they go? Where did they look? They went to Iraq.

The support that (inaudible) describes included Iraq offering chemical or biological weapons training for two Al Qaida associates beginning in December 2000. He says that a militant known as Abu Abdula Al-Iraqi had been sent to Iraq several times between 1997 and 2000 for help in acquiring poisons and gases. Abdula Al-Iraqi characterized the relationship he forged with Iraqi officials as successful.24

The supposedly loquacious source for this story was Ali Abdul Aziz al-Fakhiri, a Libyan who went by the name Ibn al-Shaykh al-Libi. Captured crossing into Pakistan in December 2001 during the battle of Tora Bora, al-Libi was questioned at Bagram air base by an FBI team led by two New York-based agents, Jack Cloonan and Russell Fincher. Fincher, a conservative Christian, developed a particular rapport with the former head of the al-Khalden training camp by praying alongside him and discussing religion, and al-Libi shared information about former camp trainees Zacarias Moussaoui and Richard Reid and an al Qaeda-approved plot to attack the U.S. embassy in Yemen—information that did not, however, include any suggestions of connections between al Qaeda and Saddam Hussein. After several days, “Albert”—the same CIA agent who would threaten Abd al-Rahim al-Nashiri with a handgun and drill a year later in Poland—interrupted one of Fincher's sessions and announced that on White House orders, the CIA was taking over al-Libi's interrogation; “You're going to Egypt,” Albert told al-Libi, “and while you're there, I'm going to find your mother, and fuck her.” Soon after, Albert returned with a team that bound and hooded al-Libi and strapped him to a stretcher for the flight to Cairo. “We believed that al-Libi was withholding critical threat information at the time so we transferred him to a third country for further debriefing,” George Tenet explained antiseptically in his 2007 memoir.25

Al-Libi spent two years in Egypt's “Scorpion” maximum-security prison, where he was tortured into creating the tale Powell related to the United Nations. When he was finally returned to U.S. custody in February 2004, he immediately recanted the story; citing CIA operational cables describing his debriefing, the Senate Select Committee on Intelligence reported in 2006,

After his transfer to a foreign government [redacted], al-Libi claimed that during his initial debriefings “he lied to the [foreign government service] [redacted] about future operations to avoid torture.” Al-Libi told the CIA that the foreign government service [redacted] explained to him that a “long list of methods could be used against him which were extreme” and that “he would confess because three thousand individuals had been in the chair before him and that each had confessed.”

According to al-Libi, the foreign government service [redacted] “stated that the next topic was al-Qa'ida's connections with Iraq ….This was a subject about which he knew nothing and had difficulty even coming up with a story.” Al-Libi indicated that his interrogators did not like his responses and then “placed him in a small box approximately 50cm x 50 cm.” He claimed he was held in the box for approximately 17 hours. When he was let out of the box, al-Libi claims that he was given a last opportunity to “tell the truth.” When al-Libi did not satisfy the interrogator, al-Libi claimed that “he was knocked over with an arm thrust across the chest and he fell on his back.” Al-Libi told CIA debriefers that he was “was punched for 15 minutes.”

Al-Libi told debriefers that “after the beating,” he was again asked about the connection with Iraq and this time he came up with a story that three al-Qa'ida members went to Iraq to learn about nuclear weapons. Al-Libi said that he used the names of real individuals associated with al-Qa'ida so that he could remember the details of his fabricated story and make it more believable to the foreign intelligence service. Al-Libi noted that “this pleased his [foreign] interrogators, who directed that al-Libi be taken back to a big room, vice the 50 square centimeter box and given food.”

According to al-Libi, several days after the Iraq nuclear discussion, the foreign intelligence service debriefers [redacted] brought up the topic of anthrax and biological weapons. Al-Libi stated that he “knew nothing about a biological program and did not even understand the term biological.” Al-Libi stated that “he could not come up with a story and was then beaten in a way that left no marks.” According to al-Libi, he continued “to be unable to come up with a lie about biological weapons” because he did not understand the term “biological weapons.”26

The CIA cables from which the Senate Intelligence Committee constructed this account are dated February 4, 2004. But the intelligence community had long known that what al-Libi was telling the Egyptians was likely the fruit of torture. A Defense Intelligence Agency summary from February 2002—somewhere between a month and two months after al-Libi's rendition—flagged Egyptian intelligence reports that al-Libi was claiming three al Qaeda operatives had sought nuclear weapons training in Iraq, cautioning,

This is the first report from Ibn al-Shaykh in which he claims Iraq assisted al-Qaida's [Chemical, Biological, Radiological, and Nuclear] efforts. However, he lacks specific details on the Iraqis involved, the CBRN materials associated with the assistance, and the location where training occurred. It is possible he does not know any further details; it is more likely this individual is intentionally misleading the debriefers. Ibn al-Shaykh has been undergoing debriefs for several weeks and may describing [sic] scenarios to the debriefers that he knows will retain their interest.27

It was these scenarios, sharpened by subsequent rounds of abusive interrogations, that Powell presented, without qualification or reservation, in his February 2003 speech before the U.N. Security Council.

The following day, Alberto Mora met directly with John Yoo himself to challenge the architecture of the legal memo the Working Group knew would not only govern military interrogations at Guantánamo and in Afghanistan, but very likely—and soon—in Iraq as well. As Mora recalled,

The principal author of the OLC Memo, Mr. Yoo glibly defended the provisions of his memo, but it was a defense of provisions that I regarded as erroneous. Asked whether the President could order the application of torture, Mr. Yoo responded, “Yes.” When I questioned this, he stated that his job was to state what the law was, and also stated that my contrary view represented an expression of legal policy that perhaps the administration may wish to discuss and adopt, but was not the law. I asked: “Where can I have that discussion?” His response: “I don't know. Maybe here in the Pentagon?”28

A few days later, and less than a month after Mora had met with Haynes and Deputy Defense Department General Counsel Daniel Dell'Orto and threatened to circulate his memo denouncing the Rumsfeld-approved techniques, he again met with Haynes and Dell'Orto to discuss the Working Group report.

I informed them that the draft report was not a quality product. It was the product of a flawed working group process and deeply flawed OLC Memo. I believe I urged him to keep the report in draft form and not finalize it. I do recall suggesting that he should take the report, thank the Working Group leadership for its efforts, and the stick the report in a drawer and “never let it see the light of day again.”

***

At 6:59 p.m. on Friday, March 7, 2003, an FBI agent stationed in Guantánamo sent an email to headquarters that begins, “Since I've got nothing else to do, a couple of Friday night thoughts.” “I've been trying to get a handle on Detainees of interest to the FBI,” says the agent. “In looking at the many lists that have been prepared on the ongoing FBI Special Projects, I've come up with 33 ISNs. Here they are with * denoting [FBI Terrorist Financing Operations Section] interest, ** [indicating] FBI lists, and other agency interest in parenthesis.” One of the 33 detainees on his list, and one of eight he indicated were ongoing FBI “special projects, is ISN 760, Mohamedou Ould Slahi.

The agent asked HQ to review his list and confirm that these were indeed the FBI's priority cases, and then moved on to a second, and obviously more pressing, area of concern.

2. Given the DHS/DIA “incursion” which I believe will develop steam, I strongly believe we have to come up with a strategy that will make sense to the [Commanding General] and which does not sound like turf protection. From my perspective, there are several aspects of the strategy.

a. No real evidence that other techniques work (somebody has to do a real analysis of the 63 material and make that case but be careful. I've heard a lot of folks downplay purported DHS successes such as getting the detainee to salute but we also use very fuzzy behavioral standards such as he's talking to us/doesn't keep his head down etc).

b. Sufficiently articulated real potential for a detainee to be a[n Article III] Court witness where any technique used will be at issue. While clearly this will also be at issue in the Commission cases, there is no indication that the exclusionary provisions will be as strict. (DOJ's take on the proposed Interrogation procedures and this issue will be critical.)

c. No real exigencies which require extraordinary techniques.

I'm sure these are not new issues, but I would like to get folks take on this. I don't like to lose and I do not feel completely comfortable with the arguments I've heard, especially if the new procedures get the DOJ nod. I think our strategy/argument must be sharper, and should probably include some level of collaboration with DHS/DIA. Which raises additional issues. If the new procedures are approved, DOJ and FBI OGC must also opine re: an agent's connection to a process which includes such techniques even if approved. We can't put our agents anywhere close to a problem area EVEN if DOJ says DOJ can employ. e.g. I can envision a collaborative process where Art III testimony may be relevant and where we develop a strategy where the FBI takes first crack for ____ weeks, DIA/DHS involved as analysts/monitors, Progress assessed as time goes on with DHS waiting in the wings for entry with their approved techniques if no FBI success. Does that still put FBI [Special Agents] at risk because they are knowingly part of a process which uses techniques not condoned in U.S. courts? In any event, couple thoughts. Would appreciate yours.29

Rumsfeld's suspension of authorization for the Category II and Category III techniques meant that as of January 16, 2003 JTF GTMO interrogators were confined to the traditional Field Manual methods, but in the wake of the Qahtani interrogation military interrogators were regularly improvising variations on Qahtani's ritual humiliations. Around the time the FBI agent wrote this email, two of his colleagues were interviewing a detainee named Yussef Mohammed Mubarak al-Shihri. They later told the Justice Department's Inspector General that they had managed to build rapport with al-Shihri over the course of three interviews, but then, during the fourth interview,

Al-Shihri told them that “the mean ladies” came and got him from his cell in the middle of the night and interrogated him for hours. Al-Shihri said that during this interrogation he was also forced to listen to a recorded loop of the “meow mix” jingle for hours, was sprayed with perfume, and had a woman's dress draped on him. The agent told us he confronted a young female military intelligence contract interrogator whose name was unknown. She admitted to “poaching” his detainee and subjecting him to the treatment that he had alleged. The agent told us that after this incident al-Shihri became uncooperative and that the techniques employed on Al-Shihri were counterproductive.30

Perfume was evidently the idea of Miller's Chief Interrogator. While he was overseeing the Qahtani interrogation in December, Becker directed one of his female interrogators assigned to another detainee to purchase rose oil at the base PX and rub it on the detainee during questioning; the detainee “responded by attempting to bite the interrogator and lost his balance, fell out of his chair, and chipped his tooth,” Lieutenant General Randall Schmidt and Brigadier General John Furlow military investigators reported in their 2005 “Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility.”31 “The interrogator was not disciplined for rubbing perfume on a detainee since this was an authorized technique” that report concluded, citing the then-authorized Category III “mild, non-injurious physical touching.” But the practice did not end when Rumsfeld rescinded approval for such techniques. A sergeant who served as a military interrogator at Guantánamo at the time told Furlow under oath that one of his female colleagues “used either perfume or Vaseline during interrogations” routinely. “She would put the lotion/perfume in her hand and then rub the detainee's hand and arms,” he recalled. “She used Victoria Secret perfume so the detainees would smell like a woman.”32

Explaining the concept of “force drift,” Alberto Mora had warned, “if some force is good, [interrogators] come to believe, then the application of more force must be better”; so, too, if some religion-based gender coercion is good, more must be better. This dynamic appears to have been in play in March 2003, when a female interrogator rubbed not Victoria's Secret perfume but red ink on a detainee's arm. “She touched the detainee on the shoulder, showed him the red ink on her hand, and said, “by the way, I am menstruating,” the Schmidt-Furlow report recorded. “The detainee threw himself on the floor and started banging his head.”33

But rather than reining in his interrogators, General Miller was concentrating on winning renewed approval for the techniques that had been used to torture Qahtani. In advance of a February meeting with Deputy Defense Secretary Paul Wolfowitz—and with a draft interrogation plan for Slahi on the table—Miller had Diane Beaver write a memo to Haynes' staff insisting “We must have interrogation technique approval immediately and will speak to Mr. Wolfowitz about this. The hallmark is isolation and up to 20 hour interrogation” “We need commitment from senior leadership to let us do this mission,” Beaver wrote. Wolfowitz told Miller the techniques would be approved within a week.

Almost a month later, Rumsfeld still had not acted. He had before him a draft of the Working Group's report that recommended approval of the 36 techniques Becker had proposed in January—26 for general use, including hooding, dietary manipulation, sleep adjustment, and threat of transfer; and 10 “exceptional” techniques for use with some limitations. These 10 were isolation, prolonged interrogations, forced grooming, prolonged standing, sleep deprivation, physical training, face slap/stomach slap, removal of clothing, increased anxiety by use of aversions, and waterboarding. Of these, waterboarding—which had earned red lights under domestic and international law—would require approval by “no lower than the Secretary of Defense.” The draft listed three other techniques it said the Working Group lacked sufficient information to evaluate: stress positions, deprivation of light and auditory stimuli, and water immersion/wetting down. 34

Also available to Rumsfeld were memos from the Judge Advocates General of the Army and Nave, the Deputy Air Force JAG, and the Staff Judge Advocate to the Commandant of the Marine Corps, all warning that that the Yoo memo failed to address the Uniform Code of Military Justice; that many of the techniques could place interrogators and their superiors at risk of criminal prosecution at home and abroad; that they were ineffective; that they could poison future attempts to prosecute detainees; and that they would leave U.S. servicewomen and men vulnerable to reciprocal treatment if captured.35

At a meeting with Rumsfeld and SOUTHCOM Commander General James Hill on March 12, 2003, Joint Chiefs Chairman General Richard Myers echoed these warnings. An email a staffer sent to Diane Beaver afterwards reported that Myers suggested some of the techniques “could be illegal depending on how far they were used.” Alarmed, Beaver wrote to Haynes office, “This email is not good news. It appears something went wrong.” Hill followed up with a memo to General Myers insisting “both Geoff Miller and I believe that we need as many appropriate tools as possible,” and insisted the previously-approved Category II and III techniques, including stress positions, deprivation of light and auditory stimuli, use of detainee phobias such as dogs, and “mild- non injurious physical touching” were “critical to maximizing our ability to accomplish the mission, now and in the future.”36

A week later, Rumsfeld met with Wolfowitz, Haynes, Myers, Dalton, and Undersecretaries of Defense Stephen Cambone, Douglas Feith, and Marshall Billingslea. After the meeting, Rumsfeld announced he would authorize 24 of the proposed techniques, 19 from the Army Field Manual plus dietary manipulation, environmental manipulation, sleep adjustment, and one of the techniques the Working Group had recommended for restricted use only, isolation. Myers subsequently submitted a memo formally requesting an approval memo along these lines; Billingslea countered with a memo of his own urging Rumsfeld to go further, approving the rest of these techniques in the Working Group's final report for use on a case-by-case basis with the Secretary's approval. That report, which had been selectively disseminated the previous day, retained the Yoo memo's legal architecture and endorsed 35 techniques, eliminating only waterboarding and the three techniques prior drafts suggested the Working Group lacked sufficient information to evaluate. Shockingly, at the direction of Daniel Dell'Orto, Haynes's deputy general counsel, the final report was withheld from the Working Group itself. “I should note that neither I, the Navy's [General Counsel] nor—to my knowledge—anyone else in the [Department of the Navy] ever received a completed version of the WG report,” Mora wrote in his Statement for the Record. “It was never circulated for clearance. Over time, I would come to assume the report had never been finalized.”

On April 16, 2003, Rumsfeld issued a memo to General Hill with the subject line “Counter-Resistance Techniques in the War on Terrorism” authorizing the 24 techniques. Four of these—incentive/removal of incentive, Pride and Ego Down, Mutt and Jeff, and isolation—required a determination of “military necessity” and advance notification to Rumsfeld personally, and came with caveats. Under Pride and Ego Down, for instance, the memo noted,

Caution: Article 17 of Geneva III provides, “Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasantness or disadvantageous treatment of any kind.” Other nations that believe that detainees are entitled to POW protections may consider these techniques inconsistent with the provisions for Geneva. Although the provisions of Geneva are not applicable to the interrogation of unlawful enemy combatants, consideration must be given to these views prior to application of the techniques.37

Likewise, for isolation,

Caution: The use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extensions of the length of isolation by the appropriate level in the chain of command. This technique is not known to have been generally used for interrogation purposes for longer than 30 days. Those nations that believe detainees are subject to POW protections may view the use of this technique as inconsistent with the requirements of Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation; Article 14 which provides that POWs are entitled to respect for their person; Article 34 which prohibits coercion and Article 126 which ensures access and basic standards of treatment. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique.

At the same time, Rumsfeld made clear that the list of 24 techniques was not definitive, and that other techniques would remain available to Miller's interrogators:

If, in your view, you require additional interrogation techniques for a particular detainee, you should provide me, via the Chairman of the Joint Chiefs of Staff, a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with the identified detainee.

***

The transcript of Mohamedou Ould Slahi's November 22, 2005 hearing before the Administrative Review Board at Guantánamo contains this passage:

Detainee: Then the FBI at GTMO Bay during the time era of General Miller, they released a list of the highest priority detainees here at GTMO Bay. It was a list of 15 people and I was, guess which number, number ONE. Then they sent a special FBI team and the leader was [redacted] and I worked with him especially for my case. He said ‘you fucked up' and I was insulted because in Arabic that is a very bad word. That's like saying I have been raped or a homosexual or something. I asked why did he say that and he said because you are in a very bad situation. I did not believe him because the problem is interrogators lie and if a group of people lie, it is hard to tell who is telling the truth. But he was telling the truth on many aspects. I thought he was a truthful guy. I thought he was a decent guy. Since they are interrogators I guess it was a part of their job to lie. I thought he was just making fun of me when he said I was number ONE in the camp, but he was not lying he was telling the truth as future events would prove. He stayed with me until May 22, 2003.

Presiding Officer: He stayed with you meaning he came back and interrogated you off and on?

Detainee: No, he stayed on this island and interrogated me on a daily basis until May 22, 2003.

Presiding Officer: Okay. Now I understand you.

Detainee: His command, his boss told him I was involved in the millennium plot and I told him I had nothing to do with the millennium plot. They gave me a list of allegations with a lot of suspicious answers. He wanted me to give him something and I wouldn't give him anything because I didn't really do it, I didn't kill anybody, I did not hijack anyone, but I did see this dude [Ramzi Binalshibh]. I didn't know his name but I didn't tell him that I just said I have never seen him. He said how did you know? Then I took a polygraph and [Binalshibh] refused to take a polygraph for many reasons. It turns out he is very contradictory and he lies. They said that to me themselves. They said my credibility is high because I took the polygraph. This guy was also subjected to torture because I do my own investigations too.

Presiding officer: [Ramzi] was?

Detainee: Yes, I asked the Yemenis, man, [Ramzi] said I sent him to Afghanistan. I knew him I seen him but I didn't send him, why did he say so. They said man you believe everything that they tell you (this was a Yemeni guy who was captured with Ramzi). He said, “The interrogators lie” and I said “no, they don't lie” I have seen him but I did not send him to Afghanistan. They said you forgot about something, that [Ramzi] was tortured. We would hear his cries every night, we would hear his moans every night.

“Ramzi” is Ramzi Binalshibh, who had roomed with American Airlies Flight 11 hijacker-pilot Mohamed Atta in Germany and had been the subject of an international manhunt after 9/11 for his alleged role in coordinating the “Hamburg cell.” On the first anniversary of the attacks, and just over a month after Slahi arrived in Guantánamo, via Bagram, from his eight and a half-month interrogation in Jordan, Binalshibh was captured with several other al Qaeda suspects in a shootout in a suburb of Karachi. Five days after that raid, the Los Angeles Times reported that the United States was seeking to extradite him from Pakistan to the U.S. for a criminal trial, pledging to seek the death penalty. In fact, he was already in the hands of CIA agents, who had him shackled to the ceiling and were bombarding him with blaring music in a facility in Afghanistan, likely the “Dark Prison”; the following day the Times learned the U.S. authorities had “whisked” the men elsewhere “for interrogation at a secret location.” That location was Morocco. Binalshibh was interrogated at the same facility near Rabat where Binyam Mohamed was then being tortured, remaining there through the fall and winter. Then, in March, 2003, days after Khalid Sheikh Mohammed was apprehended, Binalshibh was bundled and shipped to the CIA black site in Poland where Dr. James Mitchell was orchestrating Mohammed's enhanced interrogation, with its 183 episodes of simulated drowning.38

“Anyway,” Slahi told the Administrative Review Board, “that is none of my business.” He went on:

FBI said that I was playing games with them. Then on 22 May, 2003, [redacted], he said this was our last session, he told me that I was not going to enjoy the time to come. I am advising you to just tell the truth. I told him I don't care and he said goodbye, good friend. A couple of days later the new interrogators led by a female name [redacted], they called her [redacted], a very beautiful lady and decent lady, came to me as a task force it was Simmons from the FBI and another weird guy, I think he was CIA or something but he was very young. They said we will give you an opportunity to tell the truth or we will leave you in jail forever. I said, “Whatever you want to do, do it.” “Why did you put me in jail what did I do?” We have proof and you just got to tell us. I said, “I haven't done anything, I told you everything. I am tired.” [Redacted] and an army guy, [redacted], that's his real name, I found out his real name. Someone accidentally called his name and I remember he was the First Sgt. I didn't hate him but he was a very hateful guy. Anyway she assigned him to me [redacted]. A couple of days later, [redacted], I don't know if that was her real name but I heard them call her that. It was [redacted] who was in charge. They assigned another guy named [redacted] or [redacted], he was a special guy and we would never see his face.

Presiding Officer: When you said covered, I am not sure what you mean?

Detainee: You know like in Saudi Arabia, how the women are covered.

Presiding Officer: With a veil type thing, were there openings for his eyes?

Detainee: He did have openings for his eyes. He also had gloves, OJ Simpson gloves on his hands. He was assigned to this special mission. They started to talk to me and said, “look we are not FBI and we need you to admit to the crime we have here. That you were involved with the 11 September attack and that you were involved in the millennium plot.” I said “no I wasn't.” They said okay, forget about it. Around June 18 th 2003, I was taken from Mike Block and put in India Block for total isolation. They took all of my stuff from me. I complained to [redacted] because I thought she was a decent lady. I could not bear sleeping on the metal because of my back and you never know how much pain I could take. I could end up dead or something. She said, ‘no, you are not going to die.' They tried to give me painkillers and I refused them out of protest. How could you give me a painkiller? Just give me something to sleep on and I will be all right. They took me to the doctor here, a Navy doctor, and he was a good guy. I told him that I am in a very bad situation and he said okay I am going to recommend that they give you some items, because you have a very serious condition of Sciatic Nerve. But I cannot promise you because those people decide not me. I would like for you to check my medical records.

At this point in the hearing, according to a bold-faced aside in the transcript, something remarkable happened:

During this portion of the ARB, the recording equipment began to malfunction. This malfunction has caused the remainder of tape 3 of 4 tapes from clicks 3487 to 4479 to become distorted. The Detainee discussed how he was tortured while here at GTMO by several individuals. The recording machine was swapped out with a new one and we finished out the session. The following is the board's recollection of the 1000 click malfunction:

The Detainee was explaining his medical treatment and noticed a Board Member passing a note to the Presiding Officer. The Detainee inquired as to why the Board Member was passing a note. The Presiding Officer told the Detainee the Board Member had a question regarding the Detainee's medical treatment. The Board Member asked the Detainee to summarize his medical treatment and the treatment he received at the hands of his interrogators. The Detainee stated the medical treatment he received was “good,” however he decided to continue to go into great detail regarding the abuse he received from the hands of his interrogators.

The Detainee began discussing the alleged abuse he received from a female interrogator known to him as [redacted]. The Detainee attempted to explain to the Board [redacted's] actions but he became distraught and visibly upset. He explained that he was sexually harassed and although he does like women he did not like what [redacted] had done to him. The Presiding Officer noticed the Detainee was upset and told him he was not required to tell the story. The Detainee was very appreciative and elected not to elaborate on the alleged abuse from [redacted]. The Detainee gave detailed information regarding the alleged abuse from [redacted] and [redacted]. The Detainee stated that [redacted] and [redacted] entered a room with their faces covered and began beating him. They beat him so badly that [redacted] became upset. [Redacted] did not like the treatment the Detainee was receiving and started to sympathize with him. According to the Detainee, [redacted] was crying and telling [redacted] and [redacted] to stop beating him. The Detainee wanted to show the Board his scars and location of injuries, but the board declined the viewing. The Board agrees that this is a fair recap of the distorted portion of the tape. 39

The Justice Department's 2008 investigation of the FBI's role in abusive interrogations confirmed Slahi's account that FBI agents turned him over to Guantánamo's military interrogators in March, 2003. A military Memo for the Record dated March 23, 2003 blamed the FBI for the move. “FBI Special Agents have built strong rapport with [Slahi], but have generally not used that rapport to gain intelligence,” the memo recorded. “While rapport is normally used as a means by which to gain intelligence, it seems as though FBI agents have not been willing to offend detainee or push him on matters on which he is uncomfortable because of the desire to maintain rapport.”40 The DOJ report also corroborated Slahi's account of being interviewed in June, after the turnover, by an interrogator who identified herself to him as FBI Agent ‘Samantha Martin”—but who was in fact an Army Sergeant on the DIA's GTMO “Special Projects Team.” “Dressing casually and telling detainees they were FBI agents” turned out to be a popular ruse during 2003, and not only for military interrogators. The FBI's supervising agent in Guantánamo that summer reported it was also “common practice for CIA agents to say they were FBI so as not to reveal their presence” in the facility.41

Having military and CIA interrogators pose as FBI agents—a practice obviously intended to exploit the agency's reputation for non-abusive interrogation—threatened months of efforts by the agency to keep its personnel clear of the military's “fun and games.” When one of its agents discovered later that year that Slahi had been interrogated in June by a counterfeit agent and that this interrogator continued to play this role throughout the Special Interrogation that was to follow, the agent flagged this episode in particular in relaying accounts of military abuses up the chain of command. “These tactics produce no intelligence of a threat neutralization nature to date and CITF believes that techniques have destroyed any chance of prosecuting this detainee,” the message reported, and went on to warn, “If this detainee is ever released or his story made public in any way, DOD interrogators will not be held accountable because these torture techniques were done [by] the “FBI” interrogators. The FBI will [be] left holding the bag before the public.”42

Slahi's Special Interrogation, in fact, would feature a series of increasingly brutal deceptions. The interrogation plan was revised in the weeks following Rumsfeld's second approval memo, and on July 1 General Miller signed a request for “Special Projects Status for Slahi and a 90-day interrogation to include “techniques not specified in the Secretary of Defense guidance document.” In Miller's plan, the interrogation was to begin by reenacting a favorite savagery of the Argentine military junta: after three to five days of questioning in Camp Delta, a team of MPs in full riot gear would force him from his cell, escort him past menacing dogs, and bundle him onto a helicopter, where he would be flown out over the ocean and threatened with death or rendition to another middle eastern dungeon. He would then be returned to the island and delivered to the recently-completed Camp Echo solitary confinement facilities just outside Camp Delta, where he would be subjected to “drastic changes in his environment,” “shackled to the floor and left in the room for up to four hours while sound is playing continually,” and interrogated for 16 hours followed by four hours of sleep for several days. 43

Miller's interrogators did not wait for Rumsfeld's approval to launch Slahi's Special Interrogation. The Senate Armed Services Committee reviewed military memos from July 2003 and reported,

The memoranda indicated that, on several occasions from July 8 through July 17, Slahi was interrogated by a masked interrogator called “Mr. X.” On July 8, 2003, Slahi was interrogated by Mr. X and “exposed to variable lighting patterns and rock music, to the tune of Drowning Pool's ‘Let the Bodies Hit [the] Floor.'” On July 10, 2003, Slahi was placed in an interrogation room handcuffed and standing while the air conditioning was turned off until the room became “quite warm.” The next day, Slahi was brought into the interrogation booth and again remained standing and handcuffed while the air conditioning was again turned off. After allowing Slahi to sit, the interrogator later “took [Slahi's] chair and left him standing for several hours.” According to the memo, Slahi was “visibly uncomfortable and showed signs of fatigue. This was 4 th day of long duration interrogations.”

On July 17, 2003, the masked interrogator told Slahi about a dream he had had where he saw “four detainees that were chained together at the feet. They dug a hole that was six feet long, six feet deep, and four feet wide. Then he observed the detainees throw a plain, unpainted, pine casket with the number 760 [Slahi's internment serial number (ISN)] painted on it in orange on the ground.”44

“The masked interrogator told the detainee that his dream meant that he was never going to leave GTMO unless he started to talk, that he would indeed die here from old age and be buried on “Christian . . . sovereign American soil,” the military's own investigators found in 2005. “Mr. X” followed this two days later by telling Slahi “that his family was ‘incarcerated.'” Over the next two weeks, as Miller's request was forwarded, with recommendations for approval, from Hill to Billingslea to Wolfowitz, interrogators denied Slahi sleep for extended stretches by bombarding him with strobe lights and music and by placing him in the “freezer,” where guards doused him with ice and cold water to keep him awake.45 Then, on August 1 st or 2 nd , a “messenger” visited Slahi. According to the August 2, 2003 memorandum for the record,

That message was simple: Interrogator's colleagues are sick of hearing the same lies over and over and are seriously considering washing their hands of him. Once they do so, he will disappear and never be heard from again. Interrogator assured detainee again to use his imagination to this of the worst possible scenario he could end up in. He told Detainee that beatings and physical pain are not the worst thing in the world. After all, after being beaten for a while, humans tend to disconnect the mind from the body and make it through. However, there are worse things than physical pain. Interrogator assured Detainee that, eventually, he will talk, because everyone does. But until then, he will very soon disappear down a very dark hole. His very existence will become erased. His electronic files will be deleted from the computer, his files will be packed up and filed away, and his existence will be forgotten by all. No one will know what happened to him and, eventually, no one will care.”46

On August 2, 2003, Slahi received another visitor, this time Miller's ICE chief posing as “Captain Collins,” a Naval Captain dispatched directly from the White House. As the Schmidt-Furlow report recorded,

[“Captain Collins”] indicated he was from the White House in an effort to convince the subject of the second special interrogation that he needed to cooperate with his interrogators. The Special Team Chief presented a letter to the subject of the second special interrogation, which indicated that because of the subject of the second special interrogation's lack of cooperation, U.S. authorities in conjunction with authorities from the country of origin of the subject of the second Special Interrogation Plan would interrogate the mother of the subject of the second Special Interrogation Plan. The letter further indicated that if his mother was uncooperative she would be detained and transferred to U.S. custody at GTMO for long term detention.47

That letter, the Senate Armed Services Committee found, stressed that Slahi's mother would become the only female to be detained in “this previously all-male prison environment.”48

On August 7, 2003, Slahi asked to see “Captain Collins” again. Military interrogators recorded in a memo for the record the following day that they “understood that detainee had made an important decision and that the interrogator was anxious to hear what Detainee had to say.” Slahi, the memo reported, “was not willing to continue to protect others to the detriment of himself and his family.”49 Evidently not satisfied, Rumsfeld approved the Special Interrogation Plan for Slahi five days later, on August 13, 2003, with one change: instead of a helicopter, Slahi would be ferried off the island on a boat. Becker himself later told the FBI's on-site supervisor that “Miller had decided that [the helicopter] was too difficult logistically to pull off, and that too many people on the base would have to know about it to get this done.”50

By August 21, 2003, a construction crew was preparing a Camp Echo cell for Slahi, sealing it on the inside to “prevent light from shining” in and draping a tarp over the exterior to “prevent him from making visual contact with guards.”51 Then, on August 24, 2003, Slahi was fitted with blackout goggles, shackled, and taken aboard a boat that sailed out into Guantánamo Bay, where, as the 2005 Church report described it, “he was permitted to hear pre-planned deceptive conversations among other passengers.”52. The Wall Street Journal reported in 2007 that the boat trip “apparently led Mr. Slahi to think he was being killed and, in fear, he urinated in his pants.”53

 

Slahi recounted the experience when recording resumed in his November 22, 2005 Administrative Review Board hearing:

Presiding Officer: ….Okay, could you take us from [before the 24 th ] because I got the August 2003 stuff between there, so if you could go to August 24 th because you said that was a big day. Take us from there to this secret place so that we can move on a little bit.

Detainee: Okay, exactly, I was taken by those two guys and the trip took about an hour, it was in a boat. Then they took me to a place and I was moaning and I recognized a voice and he was talking to two Arab guys, one claiming to be Egyptian and one claiming to be Jordanian. He was telling them how grateful he is that they are helping him. They told him in Arabic that they were there to torture me and they could not take me to Jordan or Egypt or something like that. Then they were telling him look into this. Then they gave me to the Arabic team and they took me to a place for about an hour and they took me to a place I don't know. They were hitting me all over (Detainee demonstrated the blows). They put ice in my shirt until it would melt. Then I arrived at that place and they gave me back to (redacted) when I arrived at the place and I was there and they brought in a doctor, who was not a regular doctor he was part of the team. He was cursing me and telling me very bad things. He gave me a lot of medication to make me sleep and I had special guards with masks so I couldn't see anybody. For like two or three weeks I was unconscious and after that I decided it is not worth it. Because they said to me either I am going to talk or they will continue to do this. I said I am going to tell them everything they wanted. I told them while I was in Canada, I was planning for a terrorist attack but I couldn't get it straight with Ressam because he was not talking back then and he was cooperating completely with the FBI, and of course he said he didn't know me because he didn't know me. But I told them I was on my own trying to do things and they said write it down and I wrote it and I signed it. I brought a lot of people, innocent people with me because I got to make a story that makes sense. They though my story was wrong so they put me on a polygraph and I passed it. Then they wanted everything, they wanted me to tell them that I would tell them. I just wanted to get some peace. If nobody understands then they don't understand because I am the one who suffered with no food, the guards beat me, it was a very bad place.54

Slahi's “special interrogation” continued through September and October despite the fact, as Miller reported repeatedly in his weekly wrap-ups during that period, that he “continues to be cooperative.” He was also beginning to exhibit some disturbing symptoms. On October 17, 2003, a JTF GTMO interrogator emailed Lieutenant Colonel Diane Zierhoffer, one of the BSCT psychologists, to report, “Slahi told me he is ‘hearing voices' now…He is worried as he knows this is not normal . . . . Is this something that happens to people who have little external stimulus such as daylight, human interaction, etc???? Seems a little creepy.” Zierhoffer wrote back, “sensory deprivation can cause hallucinations, usually visual rather than auditory, but you never know . . . . In the dark you create things out of what little you have.”55

***

On June 26, 2003, as JTF-GTMO interrogators were finalizing Slahi's “Special Interrogation Plan” for Rumsfeld's approval, President Bush issued a statement marking the 16 th anniversary of the enactment of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment:

Today, on the United Nations International Day in Support of Victims of Torture, the United States declares its strong solidarity with torture victims across the world. Torture anywhere is an affront to human dignity everywhere. We are committed to building a world where human rights are respected and protected by the rule of law.

Freedom from torture is an inalienable human right. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, ratified by the United States and more than 130 other countries since 1984, forbids governments from deliberately inflicting severe physical or mental pain or suffering on those within their custody or control. Yet torture continues to be practiced around the world by rogue regimes whose cruel methods match their determination to crush the human spirit. Beating, burning, rape, and electric shock are some of the grisly tools such regimes use to terrorize their own citizens. These despicable crimes cannot be tolerated by a world committed to justice.

Notorious human rights abusers, including, among others, Burma, Cuba, North Korea, Iran, and Zimbabwe, have long sought to shield their abuses from the eyes of the world by staging elaborate deceptions and denying access to international human rights monitors. With Iraq's liberation, the world is only now learning the enormity of the dictator's three decades of victimization of the Iraqi people. Across the country, evidence of Baathist atrocities is mounting, including scores of mass graves containing the remains of thousands of men, women, and children and torture chambers hidden inside palaces and ministries. The most compelling evidence of all lies in the stories told by torture survivors, who are recounting a vast array of sadistic acts perpetrated against the innocent. Their testimony reminds us of their great courage in outlasting one of history's most brutal regimes, and it reminds us that similar cruelties are taking place behind the closed doors of other prison states.

The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment. I call on all nations to speak out against torture in all its forms and to make ending torture an essential part of their diplomacy. I further urge governments to join America and others in supporting torture victims' treatment centers, contributing to the UN Fund for the Victims of Torture, and supporting the efforts of non-governmental organizations to end torture and assist its victims.56

The statement came amid an increasingly pointed exchange of letters between the Pentagon and Senator Patrick Leahy about American adherence to CAT. In April, as reports continued to circulate that detainees in U.S. custody were being subjected to “stress and duress” techniques that included shackling in stress positions, food and sleep deprivation, and beatings, Haynes had written Ken Roth, Executive Director of Human Rights Watch, to say that “United States policy condemns and prohibits torture.” “When questioning enemy combatants, U.S. personnel are required to follow this policy and applicable laws prohibiting torture,” Haynes declared. Moreover, “If the war on terrorists of global reach requires transfer of enemy combatants to other countries for continued detention on our behalf, U.S. government instructions are to seek and obtain appropriate assurances that such combatants are not tortured.”57

Leahy, as the ranking Democrat on the Senate Judiciary Committee, wanted to know more about how the administration viewed the applicable laws. In June, he made the first of several formal requests for copies of the secret OLC memos, and posed six specific questions to National Security Advisor Condoleezza Rice:

First, Mr. Haynes' letter states that when questioning enemy combatants, U.S. personnel are required to follow “applicable laws prohibiting torture.” What are those laws? Given that the United States has ratified the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT), is this Convention one of those laws, and does it bind U.S. personnel both inside and outside the United States?

Second, does the Administration accept that the United States has a specific obligation under CAT not to engage in cruel, inhuman and degrading treatment?

Third, when the United States ratified the CAT, it entered a reservation regarding its prohibition on cruel, inhuman and degrading treatment, stating that it interprets this terms to mean “the cruel, unusual and inhumane treatment or punishment prohibited by the 5 th , 8 th , and/or 14 th amendments to the Constitution.” Are all U.S. interrogations of enemy combatants conducted in a manner consistent with this reservation?

Fourth, in its annual country Reports on Human Rights Practices, the State Department has repeatedly condemned many of the same “stress and duress” interrogation techniques that U.S. personnel are alleged to have used in Afghanistan. Can you confirm that the United States is not employing the specific methods of interrogation that the State Department has condemned in countries such as Egypt, Iran, Eritrea, Libya, Jordan and Burma?

Fifth, the Defense Department acknowledged in March that it was investigating the deaths from blunt force injury of two detainees who were held at Bagram air base in Afghanistan. What is the status of that investigation and when do you expect it to be completed? Has the Defense Department or the CIA investigated any other allegations of torture or mistreatment of detainees, and if so, with what result? What steps would be taken if any U.S. personnel were found to have engaged in unlawful conduct?

Finally, Mr. Haynes' letter offers a welcome clarification that when detainees are transferred to other countries, “U.S. government instructions are to seek and obtain appropriate assurances that such enemy combatants are not tortured.” How does the Administration follow up to determine if these pledges of humane treatment are honored in practice, particularly when the governments in question are known to practice torture?58

Leahy signed the letter with a handwritten note: “Condi – I want to make sure we are on the right moral plane if an American is held abroad. Pat.”

Rice kicked Leahy's letter back to Haynes to answer, and on June 25, 2003, the day before the President's Torture Day statement, Haynes wrote Leahy that “we can assure you that it is the policy of the United States to comply with all of its legal obligations in its treatment of detainees, and in particular with legal obligations prohibiting torture.” Those obligations, Haynes conceded disingenuously, included “undertak[ing] to prevent other acts of cruel, inhuman, or degrading treatment or punishment,” as defined by the “cruel and unusual” standard incorporating 5 th , 8 th , and 14 th Amendment protections. Haynes also insisted that the U.S. was in full compliance with CAT's prohibitions on renditions to torture, reiterating that the U.S. secured assurances in advance of renditions and “would take steps to investigate credible allegations of torture and take appropriate action if there were reason to believe that those assurances were not being honored.”59

On September 9, 2003—days after Slahi had been subjected to the Rumsfeld-approved mock rendition and threatened execution—Leahy wrote back to Haynes welcoming his “clear statement” of U.S. compliance with CAT and its obligations regarding “cruel, unusual, and degrading treatment.” “This statement of policy rules out the use of many of the “stress and duress” interrogation techniques that have been alleged in press reports over the last several months,” Leahy observed pointedly. “At the same time,” he noted, “the ultimate credibility of this policy will depend on its implementation by U.S. personnel around the world.” “In that spirit,” he continued,

I would appreciate it if you could clarify how the administration's policy to comply with the CAT is communicated to those personnel directly involved in detention and interrogation? As you note in your letter, the U.S. obligation under Article 16 of CAT is to “undertake . . . to prevent” cruel, inhuman or degrading treatment or punishment. What is the administration doing to prevent violations? Have any recent directives, regulations or general orders been issued to implement the policy your June 25 letter describes? If so, I would appreciate receiving a copy.

I understand that interrogations conducted by the U.S. military are governed at least in part by Field Manual 34-52, which prohibits “the use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind.” This field manual rightly stresses that “the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he things the interrogator wants to hear.” Are there further guidelines that in any way add to, define, or limit the prohibitions contained in this field manual? What mechanisms exist for ensuring compliance with these guidelines?

Most important, I hope you can assure me that interrogators working for other agencies, including the CIA, operate from the same guidelines as the Department of Defense. If CIA or other interrogation guidelines in use by any person working for or on behalf of the U.S. government differ, could you clarify how, and why?

As for renditions, wrote Leahy,

I remain concerned…that mere assurances from countries that are known to practice torture systematically are not sufficient. While you state that the United States would follow up on any credible information that such detainees have been mistreated, how would such information emerge if no outsiders have access to these detainees? Has the administration considered seeking assurances that an organization such as the International Committee of the Red Cross have access to detainees after thay have been turned over? If not, I urge you to do so. 60

***

Two weeks, later, a Boeing 737 with no tail markings retrieved alleged 9/11 financier Mustafa al-Hawsawi from the Salt Pit prison and took off from Kabul for Szymany, Poland. After collecting Khalid Sheikh Mohammed, Abu Zubaydah, Abd al Rahim al Nashiri, and Ramzi Binalshibh and delivering Mohammed to a new black site in Bucharest, Romania, the CIA-leased aircraft made a stop in Morocco, taking off from Rabat at 8:10 p.m. on September 23, 2003 and arriving in Guantánamo before dawn the following morning. As Slahi was telling his interrogators in Camp Echo what they wanted to hear, Binalshibh, al-Nashiri, Zubaydah, and al-Hawsawi were installed in a new, secret facility outside Camp Delta dubbed “Strawberry Fields.”61

Days later—and almost a year to the day after CIA attorney Jonathan Fredman visited Guantánamo and counseled Becker, Diane Beaver, and others to move selected detainees “away from the attention of” the ICRC—a Red Cross delegation carried out an official inspection of detention facilities on the base. By then, Fredman's advice had been incorporated into Camp Delta Standard Operating Procedures:

17-4. Levels of Visitation

All detainees will have a level of ICRC contact designated for them. These different levels are as follows:
•  No Access. No contact of any kind with the ICRC. This includes the delivery of ICRC mail.

•  Restricted: ICRC is allowed to ask the detainee about health and welfare only. No prolonged questions.

•  Unrestricted: ICRC is allowed full access to talk to the detainee.

•  Visual: Access is restricted to visual inspection of the detainee's physical condition. No form of communication is permitted. No delivery of ICRC mail.62

In flagrant violation of international law, which guarantees the Red Cross access to all POWs and civilians interned as a result of armed conflict, the presence of Guantánamo's four newest arrivals was not even disclosed to ICRC delegates during their October 2003 visit. Abu Zubaydah, Binalshibh, al-Nashiri, and al-Hawsawi remained as secret detainees on the island for seven months, and then, on March 27, 2004, were abruptly transferred back to CIA black sites—just as the Supreme Court was preparing to hear Rasul v. Bush , the case in which the court affirmed that Guantánamo detainees are entitled to file habeas corpus petitions.

The ICRC was, however, informed that four other detainees were “off limits” to the delegation “due to military necessity”: Slahi, Abdullah Tabarak, Abdurahman Khadr, and Moazzam Begg. At a contentious one hour meeting with Miller at the end of the visit on October 9, 2003, ICRC Team Leader Vincent Cassard told the General,

[T]he ICRC does not feel bound by the previous SOP that was created between JTF and a previous ICRC team. MG Miller asked Mr. Cassard to point out the part(s) of the SOP they disagreed with. [ICRC team member Christophe] Girod responded by stating that the ICRC has their own SOP that they follow worldwide, which grants them unrestricted access to all areas and to all detainees. The ICRC acknowledged the JTF SOP, they will live with it but do not like it.63

During the meeting, Cassard warned Miller about the impact interrogations were having on the mental health of detainees, challenging in particular the “attempt to control the detainees through use of isolation” and “psychological pressure and . . . coercion.” Miller insisted that detainees were being treated humanely; he insisted that 85% of Camp Delta detainees “get privileges above and beyond basic [Geneva Conventions] requirements, adding sarcastically, “Does the ICRC object to these additional privileges?” Cassard pressed ahead:

Mr. Cassard stated that the ICRC has a serious concern with the treatment of the Koran in the camps, particularly in August. Specifically, an incident of mishandling of the Koran. The ICRC heard from detainees that the MPs are mishandling the Koran. MG Miller responded by informing the ICRC that he conducted a complete investigation into that incident and he found that it was an accidental incident. MG Miller explained that cell searches were being conducted and an MP, while lifting up a mattress during a cell search, accidentally bumped the surgical mask that was holding the Koran. The Koran fell to the floor of the cell as a result of this accident. MG Miller continued by stating that the detainees were trying to use this incident to create disturbances throughout the camp. This was during a time when new MPs had just arrived at GTMO. Over 1200 new MPs arrived to GTMO during this time period. MG Miller emphasized that this was an accident and that JTF has the utmost respect for religion and the Koran. Mr. Cassard stated that he was pleased that such a thorough investigation was conducted. However, the ICRC takes the allegation very seriously and 20 detainees have informed the ICRC that as punishment for the disturbances they have been shaved. MG Miller stated that detainees were shaved only for hygienic purposes by a qualified barber. The approval to shave a detainee comes from the JDOG commander and is never done as a punishment.64

Miller also denied that interrogators were using medical files to gain information to develop interrogation plans—a breach of confidentiality between a physician and a patient, Cassard insisted. When the general claimed that “interrogators do not have access to detainee medical files, only medical personnel may use the medical files of detainees” and told the ICRC to “confirm their facts,” Cassard “raised a concern that MG Miller was not taking the discussion seriously.” Finally, Miller lied outright to the delegation about the nature of Slahi's incarceration in Camp Echo and the reasons he was off limits to the ICRC:

Mr. Cassard stated that the ICRC was shocked to see that Camp Echo had expanded. The ICRC believes that Camp Echo is extremely harsh and has very strict interrogations. MG Miller explained that Camp Echo was built to hold detainees that are awaiting the commissions process. Camp Echo is an appropriate facility that allows detainees to have private conversations with their attorneys. Also that there are currently very few detainees in Camp Echo and they are there for serious assaults against MPs.

The Red Cross knew nothing, of course, of Miller's “special projects” or Rumsfeld's approval memos or the outlandish legal contortions of Diane Beaver and John Yoo. Neither did another visitor who arrived in Guantánamo a few weeks after the ICRC team's departure. Lieutenant Colonel Stuart Couch, a former Marine pilot turned Navy prosecutor, had retired from active service in 1999 for private legal practice, but returned to the military following the 9/11 attacks—in which his close friend Michael Horrocks was killed when the plane he was piloting was hijacked and crashed into the World Trade Center's south tower—to serve as a prosecutor for the Guantánamo Military Commissions. “I did that to get a crack at the guys who attacked the United States,” he explained to Wall Street Journal reporter Jess Bravin in 2007. He had reported to the Commission's Crystal City, Virginia offices in August 2003 and was happy to find among those he was assigned to prosecute Mohamedou Ould Slahi, an alleged 9/11 recruiter. “You got one of the most important cases of all,” his colleagues congratulated him.

When Lieutenant Colonel Couch landed in Guantánamo for the first time two months later, he was given a tour of the offices and future courtroom of the military commissions, and then reported to Camp Delta's interrogation rooms, where he was to observe his first interrogation. “I was going to sit in and watch the interrogation of one of the [other] cases that I was working on,” he told an interviewer in 2007.65

I was going to watch him through a two-way mirror, just to kind of get an idea of what his demeanor was like. And it was while I was waiting for that—for the detainee to be brought over from his cell that I heard this really loud—you know, best way to describe it, “head-banger” you know, hardcore rock and roll being played—Metallica-type rock music, just down the hall. And so I came out of the booth were I was, and I looked down the hall. And I heard this, you know, head-banger music blaring out. And I could see what appeared to be like strobe light coming out of the doorway. And so I walked down the hallway and the door was open. And I turned around and I looked inside. And I saw a detainee sitting on the floor. He was in the orange jumpsuit. He was shackled. His hands were shackled, his feet were shackled, and from what I could see, his hands were next to the floor. So I'm assuming it was shackled to the floor. And the room was blacked out with the exception of the strobe light. And he was just—he was rocking back and forth. And I could see that he was praying; his lips were moving. And about that time these two civilian guys, you know, immediately got in the doorway and asked me, “Who are you? What do you want?” And I said I'm Lieutenant Colonel Couch, and you gotta—what's going on here? Turn that stuff down.” And I was just so shocked by what I was seeing that, you know, I was having a hard time sort of registering. And they stepped out of the door and pulled the door behind them. And then they just said, you know, “Just move along,” or words to that effect. And so I went back to the booth and there was a—there was an Air Force attorney that was accompanying me, giving me the tour. And I just said. “Did you see that?” And he goes, “Well, yeah.” And I said, “You know, I got a problem with that.” And he goes, “Well, that's approved.”66

Couch's experience was hardly unusual. Emails from FBI agents who worked in Guantánamo in 2002 and 2003 recount several such incidents: “I was situated in the observation booth in between two interview rooms, observing an interview,” one begins.

The booth was quite crowded because there were several individuals present who were observing an “interview” in the room on the other side of the booth. In that room, the detainee was seated in a chair and was secured in the same method as I'd seen for all of the other detainees, shackled at his feet so that he could not leave the room. However, there wasn't much talking going on, because the lights had been turned off and a strobe light was flickering on and off, and loud rock music was being played. I estimate this went on for 30 to 60 minutes. I was told by quite a few FBI personnel that tactics such as this were quite common there at the time. 67

Another reports a similar scene, with a strange variation:

Following a detainee interview exact date unknown, while leaving the interview building at Camp Delta at approximately 8:30 p.m. or later, I heard and observed in the hallway loud music and flashes of light. I walked from the hallway into the open door of a monitoring room to see what was going on. From the monitoring room, I looked inside the adjacent interview room. At that time I saw another detainee sitting on the floor of the interview room with an Israeli flag draped around him, loud music being played and a strobe light flashing. I left the monitoring room immediately after seeing this activity. I did not see any other persons inside the interview room with the Israeli flag draped detainee, but suspect that this was a practice used by the DOD DHS since the only other persons inside the hallway near this particular interview room were dressed in green military fatigues, similar to the ones worn by DOD DHS and the DOD MP Uniformed Reservists.68

“Is yelling, loud music, and strobe lights environmental manipulation?” asks an undated military memo entitled “Historic Look at Inappropriate Techniques Used at GTMO.” That document, which is still secret but which was described by the Senate Armed Services Committee in its 2008 report, reviewed interrogation practices under General Miller in Guantánamo and found it was “clear” that interrogators were routinely using “several if not all of the techniques that require SECDEF notification.”69 A third FBI account from the time vividly illustrates what Miller's interrogators believed could be done within the parameters of Rumsfeld's vaguely-defined temperature and environmental manipulation:

On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor with no chair and no water. Most times they had urinated or defecated on themselves and had been left there for 18 – 24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold. When I asked the MP's what was going on, I was told that interrogations from the day prior had ordered this treatment, and the detainee was not to be moved. On another occasion, the A/C had been turned off, making the temperature in the unventilated room probably well over 100 degrees. The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night. On another occasion, not only was the temperature unbearably hot but extremely loud rap music was being played in the room, and had been since the day before with the detainee chained hand and foot in the fetal position on the tile floor.70

By the summer of 2003 it was clear just how flexible an instrument even the revised list of approved techniques was meant to be. In Rumsfeld's April 16, 2003 memo, “sleep adjustment” is defined as “adjusting the sleeping times of the detainee (e.g., reversing sleep cycles from night to day.) This technique is NOT sleep deprivation.” But when does “adjustment” become “deprivation”? On June 2, 2003, SOUTHCOM's General Hill issued clarifying instructions: interrogators were barred from keeping detainees awake for more than 16 hours or allowing a detainee to rest briefly and then repeatedly awakening him, not to exceed four days in succession.”71 But an FBI agent who arrived in Guantánamo just after these guidelines were issued found himself in a command staff meeting with General Miller and GTMO department heads at which a new strategy, dubbed “Operation Sandman,” was unveiled. An August 3, 2003 email from Maj. James Rogers, then Operations Officer for GTMO's Intelligence Control Element, described the “Sandman” scheme this way: interrogating a detainee for 15 hours, letting him rest for five hours in his cell, and then having him transferred to a new cell every half hour for the rest of the 24-hour cycle—at which point, he reported, “the fun begins again.” By the fall, “non-cooperative” detainees camp-wide were being assigned to the “frequent flyer program,” the duration of which was determined not by Hill's guidelines but by the “cooperativeness of the detainee.”72.

Indeed, by the time Lieutenant Colonel Couch arrived in Guantánamo, it was clear inside the “The Battle Lab” that the rebellion that led to the rescission of Rumsfeld's December 2002 memo had failed: FBI agents were avoiding certain interview trailers completely because the military's interrogations were so harsh and obtrusive, and in October 2003, the Criminal Investigative Task Force once again ordered CITF agents to stand clear of abusive interrogations. “[P]hysical torture, corporal punishment, and mental torture are not acceptable interrogation tactics and are not allowed under any circumstances,” the memo read.

When CITF personnel are conducting a joint interrogation with another U.S. government organization, and a member of that other organization employees tactics that are, or appear to the investigator to be, inhumane or cruel and unusual, the CITF personnel will immediately disengage from the interrogation, report the incident to their CITF chain of command, and document the incident in a memorandum for record.73

Couch, who as a Marine pilot had been through SERE training, told a Spiegel reporter in 2008 he understood immediately what he was happening that day. “I was looking at the treatment of a prisoner-of-war in enemy detention. It resembled the abuse I had been trained to resist if captured”—abuse rogue nations use in violation of the Geneva Conventions, his SERE instructors had explained. He returned to the military commissions office in Virginia, but the incident “started keeping me up at night,” he would later say. “I couldn't stop thinking about it.” He wondered if he, too, should just stand clear. Barred from recounting his experience to family and friends, he sought the advice of a senior judge advocate of the Marine Corps, someone he knew was in a position “to know some of the aspects of the Guantánamo operation.74

“I described for him what I'd seen and how I felt about it,” Couch said in the 2007 interview. “And he says, “Nope, you're not imagining things. You're not crazy. This is a real issue. This is a problem. And you need to work this—you need to work this problem.”75

***

Days before Lieutenant Colonel Couch's first visit to Guanánamo, President Bush nominated Jim Haynes for a federal judgeship on the U.S. Fourth Circuit Court of Appeals. Haynes hoped to follow Jay Bybee, who had seen his service as head of the Office of Legal Counsel rewarded with a seat on the 9 th Circuit Court of Appeals earlier in the year. Yoo had moved on, too, accepting visiting scholar positions at the American Enterprise Institute and University of Chicago. In October, Jack Goldsmith—who had served under Jim Haynes in the Defense Department but who had been excluded from the Working Group process—took over as head of the OLC. By the time the Senate Judiciary Committee began gearing up for the first hearings on Haynes' nomination six weeks later, Goldsmith had concluded that the March 2003 Yoo memo that had guided the Working Group and the August 1, 2002 “Standards of Conduct” Bybee memo were “legally flawed, tendentious in substance and tone, and overbroad.” “My main concern,” Goldsmith wrote in his 2007 memoir The Terror Presidency, “was that someone might rely on their green light to justify interrogations much more aggressive than ones specifically approved and then maintain, not without justification, that they were acting on the basis of OLC's view of the law.”76

The week after Christmas, Goldsmith called Haynes to tell him the military could no longer rely on the March 14, 2003 legal opinion. Yet even the news that military interrogators were now operating without the cover of Yoo's memo seemed to have little impact on GTMO operations. On January 2, 2004, the Pentagon approved two more Special Interrogation plans, the contents of which remain classified.77 But two weeks later, Army Specialist Joseph Darby, an MP in the 372 nd MP Company deployed in Abu Ghraib, left a CD full of photographs and an anonymous note for a CITF investigator stationed in the prison. Most of the photos had been taken between October 18 and October 31, 2003—just two months after General Miller led a Pentagon survey team to review detention and interrogation operations in Iraq and urged his counterparts to “GTMO-ize” their facilities. “You haven't broken [the detainees] psychologically,” Miller complained to Major General Keith Dayton, Commander of the Iraq Survey Group, during his visit. Within days, plans had begun circulating to incorporate military working dogs, stress positions, “sleep management,” 24-hour interrogations, isolation, loud music, light control, and nudity.78

In the three months before Army Specialist Darby's photos were broadcast on 60 Minutes II , Lieutenant Colonel Couch was piecing together a picture of what had happened to Mohamedou Ould Slahi that previous summer and fall in Guantánamo.

As Slahi's designated prosecutor, Couch had been monitoring intelligence summaries of Slahi's interviews, and in the fall, he'd noticed that the Mauritanian suddenly “was being very prolific with what he was saying.”

There were a lot of reports coming out. And just the volume—I got to the point where I just couldn't keep up with everything he was saying. I've got in mind what I had seen on that first trip. And I've also been told that Slahi is under “special project.” All of that's kind of coming together. And I'm thinking, okay, why is he being the prolific? What's going on?79

During this time, Slahi provided what Couch would call “a Who's Who of al Qaeda in Germany and all of Europe”; he also reportedly corroborated Ramzi Binalshibh's allegations, extracted in the CIA's black sites, that Slahi had directed him and three of the Germany-based hijackers to al Qaeda camps in Afghanistan to train for attacks on the United States . Couch knew those allegations: they were among the elements in Slahi's file that “got my attention,” as he put it, and made him so enthusiastic to prosecute a person who might possibly have connections with the terrorist attack that killed his friend. But the file said nothing about the circumstances under which Binalshibh had offered this information. Later, when Slahi seemed to turn talkative, there was likewise no information about the conditions of his interrogation in Guantánamo. Slahi's confession came in sanitized 10-page summaries, the text all upper-case. “Why is he being this prolific?” Couch kept asking. “Is it physical coercion? Are they promising him things?” But even his top-secret clearance wasn't sufficient to see information about the circumstances of Slahi's interrogation. Anything beyond the interview summaries was off-limits and classified.

Couch had gathered that Slahi, as a “special project,” had faced some kind of “enhanced” interrogation techniques, and he had a hint, from his October 2003 visit, of what the source of those techniques might be. And he knew, from his own SERE training, what those techniques were meant to do. That training involved “a mock invasion, and then you were captured,” he explained in that 2007 interview. “It was clear that the fingerprints of Vietnam and the treatment of our Aviators at the hands of the North Vietnamese was the genesis of all the guiding principles they were trying to teach. What they were trying to get at was complete and total control of the individual. They controlled where you were, what you were wearing, what you were eating, what you're drinking, when you sleep—total and complete control.” That control, in SERE exercises, is exerted toward coercing participants to sign false confessions. “Did you confess?” the interviewer asked. “I'm not going to go there,” Couch answered.

It wasn't hard for Couch to imagine how the SERE techniques could come to form the backbone of a post-9/11 interrogation program. “They were seeing servicemen and women, Marines, Army Air Force, Navy seals, special operations-type folks in these environments, and some of them were breaking,” he said. “And they felt okay about adopting these techniques because the mantra is, we've been utilizing these same techniques with our own people.”

But what gets dropped out of that analysis is that when we go to SERE school, we're volunteers. We go there, we know that we're going to be trained, and that that form of discipline, that form of harsh treatment, is ultimately for our good. And we know that it's going to be over in a week. Not so an individual who doesn't know that they're going to be released from captivity after a week, who has not volunteered to be there.

I do want to note here, I was not the only one in the office that had concerns about these interrogation techniques. There were two other senior prosecutors, a Navy commander and another Marine, a lieutenant colonel, and there were other prosecutors in the office that had a concern. And we were looking at, what was the nature of the treatment of these detainees, from the moment we picked them up off the battlefield until today? What is this going to look like in a courtroom? What is this going to look like when we're standing in front of the military commission members and trying to convince them that this evidence is good evidence?80

Couch put those concerns in writing in a March 2004 “Operational Assessment” to Brigadier General Scott Black: “Prosecutors in our office are very concerned about the allegations of detainee abuse at GTMO and Afghanistan, and we have individually taken steps to address this issue,” he reported. “The techniques employed by the intelligence community in obtaining information is a policy decision that obviously affects our prosecution efforts, yet we are powerless to influence such activities.”81 Meanwhile, Couch was working with an NCIS agent assigned to Slahi's case to piece together the “great, big jigsaw puzzle” of his ordeal. With no official information forthcoming, the agent worked “under the table,” talking to interrogators, hunting for documents like interrogation logs, bringing back bigger and bigger pieces. Then, in the spring, the agent turned up the letter the phony White House emissary had shown Slahi reporting that his mother was in custody and was going to be brought to Guantánamo. “It was a clear implication that she was going to be harmed or could be harmed,” Couch remembered. “We've got your family. We took them into custody, and they started crying. You better start telling us what you know.” “And for me,” Couch said, “That was it.”

Slahi, Couch saw, had been tortured—and because Article 15 of the Convention Against Torture requires every country that has signed the convention to “ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings,” nothing in the interview summaries could be used even in the context of the relaxed evidentiary standards of the military commissions. But for Couch, who describes himself as an evangelical Christian, what to do about Slahi's prosecution cut much deeper than a question of what evidence he was willing to present. “The very cornerstone of the Christian faith is the dignity of human beings,” Couch has said. “We believe that because as it says in the Bible, we were created in God's image. We were created in his image, and we owe each other a certain level of dignity—a certain level of respect.” Exercising that respect, Couch concedes, is difficult in the face of visceral emotions like vengeance or fear, but “there's another aspect to it, too, and that is what God expects us to be doing to our fellow human being? Somebody that's been detained, they're off the battlefield, we are responsible for their care and feeding and their welfare, is it appropriate to treat them in a cruel and inhumane and degrading manner to get the information?”

Couch said he “had this abiding sense that God's not going to honor this. And I'm not honoring God by prosecuting a man with this type of evidence.” But he worried that he was copping out, and struggled with pride—pride in his work, his “willingness to do the hard things, go the extra mile.” Then,

Right in the middle of this time, when I had received this information from the NCIS agent—the documents, the State Department letterhead—and it was at the end of this, hearing all of this information, reading all this information, months and months and months of wrangling with the issue, that I was in church this Sunday, and we had a baptism. We got to the part of the liturgy where the congregation repeats—I'm paraphrasing here, but the essence is that we respect the human dignity of every human being and seek peace and justice on earth. And when we spoke those words that morning, there were a lot of people in that church, but I could have been the only one there. I just felt this incredible, all right, there it is. You can't come in here on Sunday, and as a Christian, subscribe to this belief of dignity of every human being and say I will seek justice and peace on the earth, and continue to go with the prosecution using that kind of evidence. And at that point I knew what I had to do. I had to get off the fence.82

Couch resigned. In a meeting with Colonel Bob Swann, the chief prosecutor of the military commissions, he called the techniques to which Slahi had been subject “morally repugnant,” and made clear that for that reason alone he refused to participate further in his prosecution. According to a Wall Street Journal account of that meeting, Swann reacted indignantly, asking Couch, “What makes you think you're so much better than us?” “That's not the issue at all, that's not the point!” Couch shouted back. In the ensuing argument, Swann argued that the president's military commissions weren't bound by the Torture Convention; Couch countered by pressing Swann to cite one legal precedent establishing that the President of the United States could ignore a treaty the U.S. had ratified. Following the meeting, Couch wrote a formal letter of resignation and specifically requested that Haynes be informed of his concerns. A military commission spokesman told the Wall Street Journal , “Mr. Haynes was not informed of the issued raised by Lt. Col Couch nor did he expect to be told about all internal operations within the Office of Military Commissions.”83

In the 2007 interview, Couch talked of his outrage at discovering “that these types of things were being done by the United States.”

And one of the reasons was, when we're going through SERE school—just being in the military—we always think of ourselves as the good guys. The United States has always stood for goodness and fair play, is a good way to look at it. And we've always been outraged, as a nation, when other countries were using coercive methods and methodology on their prisoners. When I was in high school, I read several accounts of the prisoners of war that were held by the North Vietnamese, and what they endured at their hands in the Hanoi Hilton. I always had the utmost respect for them, and frankly a lot of outrage against the North Vietnamese for their treatment. In those accounts there's a lot of discussion about the Geneva Conventions, and about how these men and women who were being held in the prisoner of war camps always had that hope that somehow, with the Geneva Conventions as a backdrop, that world would be able to see what was wrong with what was being done to them and they would get justice.

That Vietnamese experience had a profound impact on interpretations of the Code of Conduct. It was directly attributable to even having SERE school to begin with, because that kind of behavior was out there. And so, for me, that was part of the backdrop when I started seeing what was being done to Slahi. I was just outraged, because if we stoop and we compromise on our ideals as a nation, then these guys have accomplished much more than driving airplanes into the World Trade Center and the Pentagon.

“It is the classic slippery slope,” Couch concluded.

I believe when, as a government, we adopt a policy that allows for the degradation and dehumanization of another human being, whoever they may be, whatever they may be charged with or alleged to have done, when we adopt this as an acceptable and authorized method of interrogation with that individual, we have now embarked on a slippery slope that we can easily slip down ourselves. I go back to my Christian belief. We are human beings who are just inherently sinful. We are sinful beings. If we embark on a policy that allows us, by sanction of government, basically, to mistreat another human being, it can quickly get out of control when it's carried out by sinful human beings.84
    Footnotes
  1. 1. Memorandum for Commander USSOUTHCOM, January 15, 2003, available at http://www.aclu.org/files/projects/foiasearch/pdf/DOJOLC000020.pdf
  2. 2. Senate Armed Services Committee report, 135-136
  3. 3. Transcript of March 6, 2002 CNN report “Al Qaeda Online for Terrorism” available at http://edition.cnn.com/TRANSCRIPTS/0203/06/lt.15.html
  4. 4. “Al Qaeda Online for Terrorism,” CNN, March 6, 2002
  5. 5. See “From Germany to Guantanamo: The Career of Prisoner No. 760,” Der Spiegel , September 10, 2008, available at http://www.spiegel.de/international/world/0,1518,583193,00.html
  6. 6. Transcript of Mohamedou Ould Slahi's Administrative Review Board Hearing available at http://online.wsj.com/public/resources/documents/couch-slahiARB-03312007.pdf ; Combatant Status Review Board transcript available at http://projects.nytimes.com/guantanamo/detainees/760-mohamedou-ould-slahi
  7. 7. United States Senate Armed Services Committee Report, “Inquiry into the Treatment of Detainees in U.S. Custody,” November 20, 2008, 107-108, available at http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_...
  8. 8. DOJ OIG Witness Interviews, 468, available at http://www.aclu.org/files/pdfs/natsec/dojfbi20100514/27_interview1_7pp.pdf
  9. 9. Memorandum for the General Counsel of the Department of Defense, January 15, 2003, available at http://www.dod.gov/pubs/foi/detainees/additional_detainee_documents/07-F-2406%20doc%207.pdf
  10. 10. 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
  11. 11. Becker's memo asserted that the four Category III techniques were being used, with OLC approval, by the CIA. This was not entirely true: the August 2, 2002 Yoo memo specifically left off mock executions and did not extend approval for exposure to cold. Nevertheless, two months before, CIA agents had killed a detainee in its Salt Pit facility in Afghanistan by dousing him with water and leaving him exposed to the elements (see Chapter 3)
  12. 12. Senate Armed Services Committee Report, 113. Becker told the Senate Armed Services Committee in 2007 he had included the use of drugs as an option and his description of their efficacy based "on a rumor that [the CIA] had used drugs in their interrogation program.
  13. 13. Memo available at http://americantorture.com/documents/gitmo/04.pdf; see also Senate Armed Services Committee report, 113-115
  14. 14. Senate Armed Services Committee report, 114-115; handwritten interview notes available at http://www.aclu.org/files/pdfs/natsec/dojoig_5_007132_876179_2.pdf
  15. 15. Senate Armed Services Committee report, 116-117
  16. 16. Senate Armed Services Committee report, 118-119.
  17. 17. Memorandum for William J. Haynes III, March 14, 2003, 73, 58, available at http://www.justice.gov/olc/docs/memo-combatantsoutsideunitedstates.pdf
  18. 18. Alberto Mora, Statement for the Record
  19. 19. Office of Professional Responsibility Report, Investigation in the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of Enhanced Interrogation Techniques” on Suspected Terrorists, 78, July 29, 2009, available at http://cdm266901.cdmhost.com/cdm4/item_viewer.php?CISOROOT=/p266901coll4&CISOPTR=2317&CISOBOX=1&REC=3
  20. 20. Alberto Mora Statement for the Record
  21. 21. Senate Armed Services Committee report, 120
  22. 22. Working Group Report, “Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations”, April 4, 2003, 65-66, available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/03.04.04.pdf
  23. 23. Senate Armed Services Committee report, 122
  24. 24. Full text of Colin Powell's speech to the U.N. on Iraq available at http://www.washingtonpost.com/wp-srv/nation/transcripts/powelltext_020503.html
  25. 25. See Michael Isikoff and David Corn, Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War, Crown Books, 2006, 120-121; Jane Mayer, The Dark Side , 104-108 and 134-138; George Tenet, At the Center of the Storm , Harper Collins, 2007, 353; and Adam Goldman, “Ex-CIA officer linked to detainee abuse,” Associated Press, September 8, 2010, available at http://www.philly.com/inquirer/world_us/20100908_Ex-CIA_officer_linked_to_detainee_abuse.html
  26. 26. Senate Select Committee on Intelligence Report, “Postwar Findings About Iraq's WMD Programs and Links to Terrorism and How They Compare With Prewar Assessments,” September 8, 2006, 80-81, available at http://intelligence.senate.gov/phaseiiaccuracy.pdf
  27. 27. Defense Intelligence Agency DITSUM #044-02, February 2002, cited in letter from John D. Rockefeller IV and Carl Levin to Vice Admiral Lowell E. Jacoby, October 18, 2005, available at http://levin.senate.gov/newsroom/supporting/2005/DIAletter.102605.pdf
  28. 28. Alberto Mora Statement for the Record
  29. 29. Email available at www.aclu.org/files/pdfs/natsec/dojoig_2_006979_876175.pdf , 12-13
  30. 30. 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, 195, available at www.justice.gov/oig/special/s0805/final.pdf
  31. 31. Schmidt-Furlow report, “Army Regulation 15-6: Final Report Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility,” 7, available at http://www.defense.gov/news/Jul2005/d20050714report.pdf
  32. 32. Attachments to Schmidt-Furlow report, 858, available at http://action.aclu.org/torturefoia/released/061906/Schmidt_FurlowEnclosures.pdf
  33. 33. Schmidt-Furlow report, 8
  34. 34. Senate Armed Services Committee report, 128-129
  35. 35. Senate Armed Services Committee report, 126-128
  36. 36. Senate Armed Services Committee report, 129
  37. 37. Memorandum for the Commander, US Southern Command, “Counter-Resistance Techniques in the War on Terrorism, April 16, 2003, available at http://www.aclu.org/files/projects/foiasearch/pdf/DOJOLC000023.pdf
  38. 38. See John Daniszewski and Shamim Ur-Rehman, “Terror Suspect Likely to Face Charges in U.S.,” Los Angeles Times, September 16, 2002, available at http://articles.latimes.com/2002/sep/16/world/fg-pakistan16 ; John Daniszewski, “Al Qaeda Suspect in U.S. Hands,” Los Angeles Times, September 17, 2002, available at http://articles.latimes.com/2002/sep/17/world/fg-ramzi17 ; and Adam Goldman and Matt Apuzzo, “CIA Tapes of Terrorist Interrogation Found Under Desk,” Associated Press, August 17, 2010, available at http://www.huffingtonpost.com/2010/08/17/cia-tapes-of-terrorist-in_n_684366.html
  39. 39. Summary of Administrative Review Board Proceedings for ISN 760, 24-27, available at http://online.wsj.com/public/resources/documents/couch-slahiARB-03312007...
  40. 40. DOJ IG report, 298
  41. 41. DOJ IG report, 200
  42. 42. DOJ IG report, 126
  43. 43. DOG IG report, 126-127 and Senate Armed Services Committee report, 136-138
  44. 44. Senate Armed Services Committee report, 139.
  45. 45. DOJ IG report, 124
  46. 46. Schmidt-Furlow report, 25
  47. 47. Schmidt-Furlow report, 24
  48. 48. Senate Armed Services Committee report, 140
  49. 49. Schmidt-Furlow report 25
  50. 50. DOJ IG report, 127; also DOJ IG Witness Interviews, 1007, available at http://www.aclu.org/national-security/doj-ig-witness-interviews
  51. 51. Senate Armed Services Committee report, 140
  52. 52. DOJ IG report, 123
  53. 53. Jess Bravin, “The Conscience of the Colonel,” The Wall Street Journal, March 31, 2007, available at http://pierretristam.com/Bobst/07/wf040107.htm
  54. 54. Administrative Review Board hearing transcript, 27. The Schmidt-Furlow report recorded that Slahi “reported ‘rib contusions' from an altercation with MPs when moved between camps and that notes from a doctor's examination recorded an “‘edema of the lower lip' and a ‘small laceration' on his head,” but that the notes gave “no indications of swelling or contusions to support a conclusion that the subject of the second special interrogation was hit “very hard all over.”
  55. 55. Senate Armed Services Committee report, 140-141
  56. 56. President Bush statement available at http://www.usembassy.it/viewer/article.asp?article=/file2003_06/alia/A30...
  57. 57. Letter from William J. Haynes III to Kenneth Roth, April 2, 2003, available at Appendix, www.abcny.org/pdf/HUMANRIGHTS.pdf
  58. 58. Letter from Sen. Patrick Leahy to Condoleezza Rice, June 2, 2004, available in Appendix at www.abcny.org/pdf/HUMANRIGHTS.pdf
  59. 59. Letter from William J. Haynes III to Sen. Patrick Leahy, June 25, 2003, available at Appendix at www.abcny.org/pdf/HUMANRIGHTS.pdf
  60. 60. Letter from Sen. Patrick Leahy to Silliam J. Haynes III, September 9, 2003, available at Appendix to www.abcny.org/pdf/HUMANRIGHTS.pdf
  61. 61. Adam Goldman and Matt Apuzzo, “CIA Flight Carried Secret from Gitmo,” AP, August 6, 2010, available at http://abcnews.go.com/Politics/wireStory?id=11339130
  62. 62. Camp Delta Standard Operation Procedure, March 28, 2003, 17.1, available at http://www.comw.org/warreport/fulltext/gitmo-sop.pdf
  63. 63. Memorandum for Record, “ICRC Meeting with MG Miller,” October 9, 2003, available at http://www.washingtonpost.com/wp-srv/nation/documents/GitmoMemo10-09-03.pdf
  64. 64. Memo for the Record, ICRC meeting
  65. 65. Jess Braver,
    The Conscience of the Colonel”
  66. 66. Interview with Lt. Col. Stuart Couch, October 9, 2007, available at http://www.gwu.edu/~nsarchiv/torturingdemocracy/interviews/stuart_couch.html
  67. 67. FBI email available at http://www.aclu.org/torturefoia/released/FBI_4744_4745.pdf
  68. 68. FBI email available at http://www.aclu.org/torturefoia/released/FBI.121504.4737_4738.pdf
  69. 69. Senate Armed Services Committee report, 134. That document noted that “[d]espite these revelations by interrogators, the supervisory chain of command reports that these techniques are not used.”
  70. 70. FBI email available at http://www.aclu.org/torturefoia/released/FBI.121504.5053.pdf
  71. 71. Schmidt-Furlow report, 10
  72. 72. DOJ IG report, 184; Senate Armed Services Committee report, 148
  73. 73. Senate Armed Services Committee Report, 143
  74. 74. “From Germany to Guantanamo : The Career of Prisoner No. 760,” Speigel, September 9, 2008; also Jess Bravin, “The Conscience of the Colonel,” The Wall Street Journal , March 31, 2007, available at http://pierretristam.com/Bobst/07/wf040107.htm
  75. 75. Interview with Lt. Col. Stuart Couch, available at http://www.gwu.edu/~nsarchiv/torturingdemocracy/interviews/stuart_couch....
  76. 76. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration, Norton, 2007 , 153
  77. 77. Senate Armed Services Committee Report, 146
  78. 78. see Senate Armed Services Committee Report, 190-200
  79. 79. Interview with Lt. Col Stuart Couch
  80. 80. Interview with Lt. Col. Stuart Couch
  81. 81. Senate Armed Services Committee report, 141
  82. 82. Interview with Lt. Col. Stuart Couch
  83. 83. Jess Bravin, “The Conscience of the Colonel”
  84. 84. Interview with Lt. Col. Stuart Couch

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