High ranking officials at the Department of Defense undertook the process of authorizing illegal interrogation tactics in the year following the Sept. 11 terrorist attacks, according to the Chairman of the Armed Services Committee.
“Senior officials in the United States government sought out information on aggressive techniques, twisted the law to create the appearance of their legality, and authorized their use against detainees,” said Sen. Carl Levin (D-Mich.) in his opening statement. “In the process, they damaged our ability to collect intelligence that could save lives.”
Assisted by questionable legal council from military and CIA lawyers, techniques that would qualify as torture were eventually authorized by Defense Secretary Donald Rumsfeld, according to documents released by the Senate Armed Services Committee at a June 17 hearing.
In the most glaring evidence presented by the committee, CIA counterterrorism lawyer Jonathan Fredman pointed out weaknesses in the definition of torture in international laws.
His statements were taken at a private meeting of military lawyers held at Guantanamo Bay on Oct. 2, 2002.
“Torture has been prohibited by international law, but the language of the statutes is written vaguely,” said CIA counterterrorism lawyer Fredman. “…It is basically subject to perception. If the detainee dies you’re doing it wrong.”
Officials, nonetheless, offer the caveat that the transcript for the meeting, provided by the Criminal Intelligence Task Force (CITF) of the DOD, was not taken verbatim.
Shortly following the Guantanamo meeting, the legal opinion of one official in attendance, Lt. Col. Dianne Beaver, was used in an Oct. 11 memo requesting authorization of the abusive interrogation techniques discussed in the meeting by the U.S. Southern Command. The military base at Guantanamo Bay falls under their control.
In her analysis, Beaver found no legal issue with the tactics recommended by DOD.
Yet the committee found multiple other legal opinions that strongly disagree with Beaver’s finding. In an email circulating the Oct. 2 meeting minutes, CITF Deputy Commander Mark Fallon wrote that the tactics being discussed for approval would “shock the conscience of any legal body looking at using the results of the interrogations.”
He added, “This looks like the kind of stuff Congressional hearings are made of.”
The committee’s documents trace the source of the legalization efforts to a request from Deputy General Counsel Richard L. Shiffrin to the Joint Personnel Task Recovery Agency (JPRA) made in July 2002. Shiffrin asked for information on the SERE training program used by JPRA to prepare military personnel to resist harsh interrogation techniques used by the enemy when captured.
William J. Haynes II, the senior lawyer at DOD at the time of the requests, denies any knowledge of specifically asking for information about SERE techniques. He would only comment on the general concerns of DOD when the documents say his office began research of SERE training.
“What I remember about the summer of 2002 was a government-wide concern about the possibility of another terrorist attack as the anniversary of September 11 [approached],” said Haynes.
Haynes added that at the time there was a growing frustration over the intelligence being obtained from interrogations.
The result of his office’s request was a GTMO Joint Task Force (JTF) document providing guidelines for the use of SERE techniques during detainee interrogations dated Dec. 18 2002. The document provided by the committee shows copy-edits replacing the word “SERE” with “management.”
A handwritten side-note assures that “all reference to SERE will be removed.”
Originally subtitled “SERE Interrogation Standard Operating Procedure,” the document authorizes and outlines the use of degradation tactics such as slapping and stripping, as well as multiple stress positions.
These were the techniques eventually discussed at the Guantanamo meeting. The transcripts quote Beaver, then Staff Judge Advocate of the Guantanamo JTF, expressing concern over the appearance of harsh techniques.
“The ICRC (International Committee of the Red Cross) 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.”
She later added, “We will need documentation to protect us.”
Rumsfield, who approved the techniques partly based on Beaver’s analysis, would take away that documentation when he rescinded his authorization a little more than one month later.
Beaver testified that she understood the complexity of the issue she analyzed and sought legal help, but received none. She intimated that she may have been “hung out to dry” for her legal opinion.
“In hindsight, I cannot help but conclude that others chose not to write on this issue to avoid being linked to it,” said Beaver.
Despite the apparent paucity of evidence of abuse at Gitmo, lawmakers from both parties are rushing to the nearest microphone to deny the concept. Regardless of whom the committee found most responsible for the actions taken by DOD and its legal counsel, Sen. Lindsay Graham (R-S.Car.) expressed his concern over what he called a “lost opportunity” to distinguish the U.S. from the very detainees being interrogated.
“The guidance that was provided during this period of time, I think,” said Graham, “will go down as some of the most irresponsible and short-sighted legal analysis ever provided to our nation’s military and intelligence communities.”
Ben Giles is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.
