Top Pentagon officials developed the harsh interrogation methods used against detainees at Guantanamo less than a month before the Justice Department issued two now repudiated memorandums that gave interrogators legal cover to employ the tactics, according to documents released Tuesday by the Senate Armed Services Committee.
The documents undercut assertions by President Bush, Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld, and other senior administration officials that the brutal interrogations were the result of "a few bad apples" who acted on their own accord.
"How did it come about that American military personnel stripped detainees naked, put them in stress positions, used dogs to scare them, put leashes around their necks to humiliate them, hooded them, deprived them of sleep, and blasted music?" said Sen. Carl Levin, the Michigan Democrat who chairs the Armed Services Committee, in an opening statement before the hearing.
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"Were these actions the result of 'a few bad apples' acting on their own? It would be a lot easier to accept if it were,” Levin added. “But that's not the case. The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality, and authorized their use against detainees. In the process, they damaged our ability to collect intelligence that could save lives."
Tuesday’s hearing provided the most revealing look yet at the White House’s so-called “enhanced interrogation” program and offers up new details about the time frame in which the policy was drafted.
The hearing comes two weeks after a letter signed by 56 House Democrats was sent to Attorney General Michael Mukasey, requesting that he appoint a special prosecutor to investigate whether White House officials, including President Bush, violated the War Crimes Act when they allowed interrogators to use brutal interrogation methods against detainees suspected of ties to terrorist organizations.
“The Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law," the letter to Mukasey says. “We believe that these serious and significant revelations warrant an immediate investigation to determine whether actions taken by the President, his Cabinet, and other Administration officials are in violation of the War Crimes Act, the Anti-Torture Act, and other U.S. and international laws.”
The Armed Services Committee’s 18-month investigation, which generated 38,000 pages of documents, singled out former Secretary of Defense Donald Rumsfeld and William “Jim” Haynes II, the Pentagon’s former general counsel, as the officials who sought guidance on implementing more aggressive interrogation methods.
The committee is expected to release a full report later this year. So far, the probe has found that Rumsfeld and Haynes solicited input from military psychologists in July 2002, far earlier than they had previously acknowledged, about developing harsh methods interrogators could use against detainees held at Guantanamo Bay.
The report states that as early as July 2002, Rumsfeld, Haynes and other officials queried military psychologists about the use of waterboarding, and other brutal methods, interrogators could use against detainees at Guantanamo in order to easily extract information that would otherwise not be gained through more conventional interrogations methods.
Rumsfeld and Haynes’ questions were raised one month before John Yoo, a former deputy in the Justice Department's Office of Legal Counsel, issued two memos that authorized interrogators to use stress positions, military dogs, and other still unknown methods against suspected terrorists being held at Guantanamo.
Interrogation methods developed in July 2002, a summary of the Armed Services Report says, derived from the Army and Air Force’s Survival, Evasion, Rescue, and Escape (SERE) training program. But those techniques were meant to prepare U.S. soldiers for abuse they might suffer if captured by a brutal regime, not as methods for U.S. interrogations.
The documents contradicted previous statements made by Haynes who told a Senate committee in 2006 that lower-level military personnel were responsible for raising questions with the DOD in October 2002 about the possibility of using more aggressive techniques against detainees.
Richard Shiffrin, Haynes' former deputy on intelligence issues testified to the committee that in July 2002 Haynes became interested in using the SERE techniques, such as waterboarding and sleep deprivation, as a form of interrogation against detainees, which Rumsfeld signed off on in December 2002.
Haynes was grilled by the committee Tuesday and repeatedly said he could not recall receiving written and oral communications from military attorneys who warned that the methods being implemented at Guantanamo appeared to be illegal.
“We did not operate in a vacuum,” Haynes said in response to questions by Sen. Jack Reed, (D-RI). The secretary of defense made the final decision” on interrogation methods.
Haynes repeated said he “could not recall,” and “I don’t remember“ dozens of times in response to specific questions about interrogation methods. Haynes hired a criminal attorney after he resigned from the Pentagon. He is now an executive at Chevron.
In one document, Jonathan Fredman, who was chief counsel to the CIA’s Counterterrorism Center, discussed how interrogators could use the “wet towel” technique, also known as waterboarding, against detainees to extract information.
“It can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function,” Fredman said in October 2002 during a meeting with military officials where specific techniques were discussed, according to a copy of the meeting minutes released by the Armed Services Committee.
Fredman added that the “wet towel” technique would only be defined as torture “if the detainee dies.”
“It is basically subject to perception,” Fredman said, according to the minutes of the meeting. If the detainee dies you’re doing it wrong.”
Fredman’s comment during the October 2002 meeting prompted Lt. Col. Diane Beaver, then the chief military lawyer at Guantanamo, to respond “We will need documentation to protect us.”
Following the October 2002 meeting, Beaver drafted a legal memo that authorized military personnel at Guantanamo to use some of the harshest methods during interrogations at the facility.
Beaver testified Tuesday that she was surprised the Defense Department implemented the interrogation methods contained in her legal opinion.
“I did not expect that my opinion, as a lieutenant colonel in the Army Judge Advocate General's Corps, would become the final word on interrogation policies and practices within the Department of Defense,” Beaver said. “For me, such a result was simply not foreseeable. Perhaps I was somewhat naïve, but I did not expect to be the only lawyer issuing a written opinion on this monumentally important issue.”
At the same meeting, Beaver discussed hiding detainees from the International Committee of the Red Cross (ICRC). The ICRC visited Guantanamo to ensure interrogators were complying with the Geneva Conventions. Beaver, according to the minutes of the meeting, urged interrogators to "curb the harsher operations while ICRC is around."
"Officially it is not happening," Beaver is quoted as saying, according to minutes of an Oct. 2, 2002 meeting between the CIA and military officials. "It is not being reported officially. The ICRC is a serious concern. They will be in and out, scrutinizing our operations, unless they are displeased and decide to protest and leave. This would draw a lot of negative attention."
Sen. Lindsey Graham, (R-SC), said during Tuesday's hearing that the revelations about the brutal interrogation methods will" go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation's military and intelligence community."
Earlier Reports Scrutinized Rumsfeld
Rumsfeld was first identified as authorizing specific interrogation methods in a Dec. 20, 2005, Army Inspector General report, related to the capture and interrogation of Mohammad al-Qahtani, which included a sworn statement by Lt. Gen. Randall M. Schmidt. It said Secretary Rumsfeld was “personally involved” in the interrogation of al-Qahtani and spoke “weekly” with Maj. Gen. Geoffrey Miller, the commander at Guantanamo, about the status of the interrogations between late 2002 and early 2003.
Gitanjali S. Gutierrez, an attorney with the Center for Constitutional Rights who represents al-Qahtani, said in a sworn declaration that his client, imprisoned at Guantanamo, was subjected to months of torture based on verbal and written authorizations from Rumsfeld.
“At Guantánamo, Mr. al-Qahtani was subjected to a regime of aggressive interrogation techniques, known as the ‘First Special Interrogation Plan,’ that were authorized by U.S. Secretary of Defense Donald Rumsfeld,” Gutierrez said.
“Those techniques were implemented under the supervision and guidance of Secretary Rumsfeld and the commander of Guantánamo, Major General Geoffrey Miller. These methods included, but were not limited to, 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs.”
According to the Schlesinger report, orders signed by Bush and Rumsfeld in 2002 and 2003 authorizing brutal interrogations “became policy” at Guantanamo and Abu Ghraib.
DOJ IG: Rumsfeld Authorized Methods
Last week, the Justice Department's inspector general, Glenn Fine, gave last week before the Senate Judiciary Committee.
During that hearing, Fine testified that Rumsfeld authorized the use of brutal interrogation techniques despite warnings from the FBI that the methods amounted to inhumane treatment, was possibly illegal, and would not produce reliable intelligence.
"The FBI believed that these techniques were not getting actionable information, that they were unsophisticated and unproductive," said Glenn Fine, the DOJ’s inspector general, in testimony before the Senate Judiciary Committee. "They raised their concerns with the Department of Defense, but the Department of Defense, from what we were told, dismissed those concerns and that no changes were made in the Department of Defense's strategy."
Rumsfeld, who resigned immediately after the 2006-midterm elections, has vehemently denied that he approved of the brutal interrogation methods.
But Fine's 437-page report last month on the Bush administration’s interrogation policies, concluded that Rumsfeld and other top White House officials ignored FBI concerns about the treatment of detainees and signed off on the interrogations.
In October 2002, Fine said, FBI agents raised concerns with Marion Bowman, the Justice Department’s deputy general counsel in charge of national security, about the methods used during interrogations at Guantanamo Bay. An FBI agent stationed at Guantanamo then sent the agency an analysis on November 27, 2002, calling into question the legality of the interrogation techniques, stating that the methods used appeared to violate the U.S. Torture statute. Bowman then alerted Jim Haynes, the DOD’s general counsel.
The same day Bowman raised concerns with Haynes, Haynes advised Rumsfeld to approve of “enhanced interrogation” methods, according to Sen. Dianne Feinstein, (D-Calif.), who chaired last Tuesday’s committee hearing.
“According to Mr. Bowman, Haynes claimed he didn't know anything about the coercive interrogation techniques that were occurring at Guantanamo, despite the fact that he recommended on November 27, 2002, that Secretary Rumsfeld formally approve the very techniques that were being used at Guantanamo,” Feinstein said.
On Nov. 23, 2002, four days before the FBI agent alerted the DOJ about interrogation tactics he witnessed, Rumsfeld verbally authorized interrogators to used harsh methods during their interrogation of Mohammed al-Qahtani, the so-called 20th hijacker, who was being held at Guantanamo. The Pentagon initially wanted the death penalty for Al-Qahtani, but dropped war-crimes charges against him last month.
Rumsfeld, Fine told the committee, ignored FBI agents’ warnings and on Dec. 2, 2002, signed an action memorandum approving the use of “enhanced techniques” against prisoners at Guantanamo, concluding that the tactics stopped short of torture.
JAG's Opposed Methods
In January 2003, Rumsfeld asked Haynes to form a “working group” to draft a report on legally permissible interrogation techniques to use at Guantanamo after the legal memo Beaver drafted in October 2002 was withdrawn.
The members of the group included former Undersecretary of Defense for Policy Douglas Feith, officials from the Defense Intelligence Agency, representatives of the Joint Chiefs of Staff, and judge advocate generals (JAGs) from all four branches of the military.
Early drafts of the report advocated intimidating prisoners with dogs, removing prisoners' clothing, shaving their beards, slapping prisoners in the face and waterboarding.
Though some of the more extreme techniques were dropped as the list was winnowed down to 24 from 35, the final set of methods still included tactics for isolating and demeaning a detainee, known as "pride and ego down."
Stress positions were prohibited at Guantanamo under DOD policy beginning in January 2003. However, Fine testified that FBI agents’ "observations confirm that prolonged short-shackling continued at Guantanamo for at least a year after the revised DOD policy took effect."
"Short-shackling in which a detainee’s hands were shackled close to his feet to prevent him from standing or sitting comfortably, was another of the most frequently reported techniques observed by FBI agents at Guantanamo. This technique was sometimes used in conjunction with holding detainees in rooms where the temperature was very cold or very hot in order to break the detainees’ resolve,” Fine testified last week.
The more extreme interrogation methods that made it into the final draft of the report rankled some of the JAGs, who feared the methods would put U.S. soldiers in danger if they were captured – and would tarnish the reputation and image of the U.S. abroad. "Will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values,” wrote Rear Adm. Michael Lohr, a member of the "working group," wrote in a February 2003 letter to the working group's chairwoman, Mary Walker, the Air Force general counsel.
“How would such perceptions affect our ability to prosecute the Global War on Terrorism," asked Lohr.
The admiral was so upset with the draft report and the advice provided by the Justice Department that he requested Walker include a sentence in the final report making it clear that the legal findings were based exclusively on attorneys in the Justice Department's Office of Legal Counsel.
Lohr was not alone. Maj. Gen. Jack Rives, who at the time was judge advocate general of the Air Force, also wrote a letter to Walker warning that the interrogation techniques in the report would violate military law.
"Several of the exceptional techniques, on their face, amount to violations of domestic criminal law and the [Uniform Code of Military Justice]," Rives wrote. "Treating detainees inconsistently with the [Geneva] Convention arguably ‘lowers the bar’ for the treatment of U.S. POW's in future conflicts."
Maj. Gen. Thomas Romig, an Army JAG, and Brig. Gen. Kevin M. Sandkuhler, a Marine Corps JAG, also voiced concerns, specifically the determination that the President has the power to override the Uniform Code of Military Justice and other federal statutes and international treaties in the name of national security.
Despite the grave concerns by the legal officials in the military community, Rumsfeld signed off on the final 81-page working group report on April 2, 2003.
Though some of the more extreme techniques were dropped as the list was winnowed down to 24 from 35, the final set of interrogation methods Rumsfeld approved still included tactics for isolating and demeaning a detainee, known as "pride and ego down."
“The most commonly reported technique used by non-FBI interrogators on detainees at Guantanamo was sleep deprivation or disruption,” Fine testified last Tuesday. “Sleep adjustment” was explicitly approved for use by the military at Guantanamo under the policy approved by the Secretary of Defense in April 2003. Numerous FBI agents told the OIG that they witnessed the military’s use of a regimen known as the “frequent flyer program” to disrupt detainees’ sleep in an effort to lessen their resistance to questioning and to undermine cell block relationships among detainees.”
Alberto Mora, the former general counsel of the Navy, criticized Rumsfeld’s approval of certain interrogation methods outlined in the December 2002 action memorandum.
“The interrogation techniques approved by the Secretary [of Defense] should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture, a degree of mistreatment not otherwise proscribed by the memo because it did not articulate any bright-line standard for prohibited detainee treatment, a necessary element in any such document,” Mora wrote in a 14-page letter to the Navy’s inspector general.
Mora, who was a member of the working group, testified Tuesday that the “policy decision to use so-called 'harsh' interrogation techniques during the war on terror was a mistake of massive proportions.”
Mora also took issue with the use of the words “harsh” and “enhanced” to describe interrogations that he believed amounted to torture and a “policy of cruelty.”
“The choice of the adjectives “harsh” or “enhanced” to describe these interrogation techniques is euphemistic and misleading,” Mora said in an opening statement. “The more precise legal term is “cruel.” Many of the “counter-resistance techniques” authorized for use at Guantanamo in December 2002 constitute “cruel, inhuman, or degrading” treatment that could, depending on their application, easily cross the threshold of torture.
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