Disagreement widespread within US government over 2002 harsh interrogations
Even some military lawyers opposed the techniques, according to congressional testimony this week.
The Army lawyer's memo could not have been blunter. It argued that a plan to employ harsh interrogation techniques on prisoners at the US detention camp in Guantánamo Bay, Cuba, would be legally questionable and morally wrong – and risk a public-relations nightmare.
Plus, there was no evidence that shackling prisoners into stressful positions, disrupting their sleep, or subjecting them to cold would actually work, wrote Army Col. John Ley in a secret 2002 memo to the Pentagon's Joint Chiefs of Staff.
"The plan does not adequately lay out how using these techniques will result in our forces getting any useful information," wrote Colonel Ley in his now-declassified two-page analysis.
Six years on, it is increasingly clear that the Bush administration's 2002 decision to proceed with harsh questioning of some terror suspects interned at Guantánamo was a matter of tremendous controversy within the United States government itself.
Last month, a Justice Department audit revealed that many FBI agents deployed to the Cuban base refused to participate when military interrogators used harsh techniques and protested the use of those techniques to their superiors.
In recent days a series of congressional hearings also has made plain that some military lawyers shared these concerns. Indeed, a few were aghast that the US was turning to techniques which, depending on their application, might cross the threshold of torture.
The policy decision to approve these methods "damaged and continues to damage our nation in ways that appear never to have been considered or imagined by its architects and supporters, whose policy focus seems to have been narrowly confined to the four corners of the interrogation room," Alberto Mora, former Navy general counsel, told the Senate Armed Services Committee on June 17.
Democratic congressional leaders billed coordinated hearings in House and Senate committees over the last two weeks as an effort to discover the origins of the Bush administration's interrogation policy.
In December 2002, Secretary of Defense Donald Rumsfeld approved the use of harsh techniques, including stress positions, on Guantánamo prisoners. This move paved the way for detainee abuse that occurred later in Afghanistan and Iraq, said Senate Armed Services chairman Carl Levin (D) of Michigan on June 18.
Documents and testimony in the House and Senate over the last 10 days established that senior Pentagon lawyers as early as July 2002 sought background information on a training program known as "Survival, Evasion, Resistance and Escape" (SERE) that prepares US service members for experience as a prisoner. In the past, SERE participants have been briefly exposed to waterboarding, a technique that induces a sense of drowning.
But as to who first broached the idea of changing interrogation rules – whether it was a low-level interrogator or a White House level official – lawmakers learned little.
"So our frustration is: We would like to hold someone responsible, and it's like trying to catch shadows here, because no one is willing to say where this came from," said Sen. Claire McCaskill (D) of Missouri at one point.
Among the most damaging items unearthed by congressional investigators was the minutes of an October 2002 meeting on "counter-resistance strategy" at Guantánamo in which a CIA lawyer advised a group of military officials about the use of harsh techniques.
According to the minutes, John Fredman, the CIA attorney, argued that determining what actions constitute torture is subject to perception.
"If the detainee dies, you're doing it wrong," the minutes quote Mr. Fredman as saying.
At the same meeting, Lt. Col. Diane Beaver, a staff judge advocate at the Guantánamo base, said that it would be better to curb harsh techniques when the International Committee of the Red Cross was making one of its periodic inspection visits.
"It is better not to expose them to any controversial techniques," said Colonel Beaver, according to the meeting minutes.
Testifying before the Senate on June 18, Beaver denied that she had implied that the US should hide any actions from the Red Cross. Intensive interrogations, done properly, take time, she said – and it would be best not to interrupt them with a visit from a Red Cross representative.
Beaver – author of an October 2002 memo that argued that abusive methods could legally be used against Guantánamo prisoners – portrayed herself as a scapegoat in Senate hearings.
She said she was "shocked" to find out that her memo became the basis for Secretary of Defense Rumsfeld's approval of harsh techniques, she said. She said that she had considered it a virtual draft that would be critiqued and expanded by higher-level Pentagon lawyers with greater expertise and resources.
At one point she called her boss, the staff judge advocate at the US Southern Command, for guidance. She reached him on the golf course during Columbus Day weekend, she said, and after stating her request, she received no response.
"I was hung out [to dry]," she said.
The context of the original decision to approve harsh interrogations is important to keep in mind, defenders of the move argued before Congress this month.
It was only one year after the attacks of 2001 and many in the US national security structure expected another attack to occur soon in the US. Furthermore, the anthrax attacks in Washington had raised fears that terrorists would use weapons of mass destruction.
Meanwhile, some terror suspects thought to be privy to key information were proving hard to crack. Commanders at Guantánamo suspected that some key Al Qaeda suspects there had been trained in interrogation-resistance techniques.
"I ... remember a widespread belief that the people that the United States had captured in the war on terror were not producing as much information as we believed they had," William Haynes, former general counsel at the Department of Defense, told senators. "Similarly, there was widespread frustration that the existing doctrine was inadequate and that the country's capabilities were inadequate to the task."
Harsh techniques applied by trained personnel under supervised conditions were an attempt to surmount this problem, Mr. Haynes and other defenders of the move argued. The techniques approved by the Pentagon were not unlimited, they said. While "removal of clothing" was an approved technique, they did not mean detainees should be stripped naked, they said. Use of muzzled dogs was approved, but Pentagon officials thought that meant that muzzled dogs would walk the perimeter of the detainee camp, not – as happened on at least occasion – used to directly confront a prisoner in his cell.
"It can't be sadistic. It has to be for a governmental purpose," Beaver told senators.
That was not the way lawyers for the military services saw things. Before Rumsfeld made his decision in 2002, Air Force, Navy, and Army lawyers all submitted memos strenuously objecting to the use of any new, tougher interrogation methods.
In general, the services thought that any short-term gain would be overwhelmed by longer term disadvantages, including the loss of respect for the US around the world when the techniques were inevitably exposed and greater danger for any US service personnel captured in future conflicts.
Ley, for instance, noted that in his view both waterboarding and the use of threats to convince a detainee he faced imminent death or severely painful consequences constituted possible violations of statutes prohibiting torture.
"If we mistreat detainees, we will quickly lose the moral high ground and public support will erode," wrote Ley. "The techniques noted above will not read well in either the New York Times or the Cairo Times."