The Torture Papers: The Road to Abu Ghraib, edited by Karen

Your relationship with government is simple: government knows everything about you, and you know nothing about government. In practice this means government can do whatever it wants to you before you know it's going to happen. Government policy makers think this is a good way of ensuring citizen compliance. Thus, all of these investigations are retrospective -- they look back at the squirrely shit that government has pulled, and occasionally wring their hands about trying to avoid it happening in the future. Not inspiring reading, but necessary if you are to face the cold reality that Big Brother is more than watching.

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Sun Oct 13, 2013 4:06 am

PART 1 OF 2 (American Bar Report)

AMERICAN BAR ASSOCIATION REPORT TO THE HOUSE OF DELEGATES

August 9, 2004

REVISED 10-B

Adopted by Voice Vote
August 9, 2004

AMERICAN BAR ASSOCIATION

ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
TASK FORCE ON TREATMENT OF ENEMY COMBATANTS
CRIMINAL JUSTICE SECTION
SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES
SECTION OF INTERNATIONAL LAW AND PRACTICE
SECTION OF LITIGATION
CENTER FOR HUMAN RIGHTS
BEVERLY HILLS BAR ASSOCIATION
BAR ASSOCIATION OF SAN FRANCISCO
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE
SECTION OF BUSINESS LAW
NEW YORK STATE BAR ASSOCIATION
VIRGIN ISLANDS BAR ASSOCIATION
NEW YORK COUNTY LAWYERS’ ASSOCIATION

Table of Contents

• Recommendation
• Introduction
• Background
• Legal Standards
o The Convention Against Torture
o The Geneva Conventions
o Application of Geneva Conventions and the Anti-Torture Statute to Civilians
o Other International Legal Standards that Bind the United States
• Recommendations
• Conclusion
• General Information Form
o 1. Summary of Recommendation(s)
o 2. Approval by Submitting Entity
o 3. Has this or a similar recommendation been submitted to the House or Board previously?
o 4. What existing Association policies are relevant to this recommendation and how would they be affected by its adoption?
o 5. What urgency exists which requires action at this meeting of the House?
o 6. Status of Legislation.
o 7. Cost to the Association.
o 8. Disclosure of Interest.
o 9. Referrals.
o 10. Contact Persons (Prior to the meeting).
• Supplement
o Human Rights Standards Applicable To The United States' Interrogation of Detainees
o Recent Developments
o Application of the Geneva Conventions to the Occupation of Iraq
o Are There Exceptions To The Geneva Conventions For "Security" Detainees Or Detainees Who Possess "High Value Intelligence"?
o The Applicability of the Minimal Safeguards of Common Article 3 of the Geneva Conventions
o Enforcement of the Geneva Conventions and the Anti-Torture Statute against Civilians
o Conclusion
o Appendix A: Interrogation Rules of Engagement

REPORT TO THE HOUSE OF DELEGATES

RECOMMENDATION


RESOLVED, That the American Bar Association condemns any use of torture or other cruel, inhuman or degrading treatment or punishment upon persons within the custody or under the physical control of the United States government (including its contractors) and any endorsement or authorization of such measures by government lawyers, officials and agents;

FURTHER RESOLVED, That the American Bar Association urges the United States government to comply fully with the Constitution and laws of the United States and treaties to which the United States is a party, including the Geneva Conventions of August 12, 1949, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and related customary international law, including Article 75 of the 1977 Protocol I to the Geneva Conventions, to take all measures necessary to ensure that no person within the custody or under the physical control of the United States government is subjected to torture or other cruel, inhuman or degrading treatment or punishment;

FURTHER RESOLVED, That the American Bar Association urges the United States government to: (a) comply fully with the four Geneva Conventions of August 12, 1949, including timely compliance with all provisions that require access to protected persons by the International Committee of the Red Cross; (b) observe the minimum protections of their common Article 3 and related customary international law; and (c) enforce such compliance through all applicable laws, including the War Crimes Act and the Uniform Code of Military Justice;

FURTHER RESOLVED, That the American Bar Association urges the United States government to take all measures necessary to ensure that all foreign persons captured, detained, interned or otherwise held within the custody or under the physical control of the United States are treated in accordance with standards that the United States would consider lawful if employed with respect to an American captured by a foreign power;

FURTHER RESOLVED, That the American Bar Association urges the United States government to take all measures necessary to ensure that no person within the custody or under the physical control of the United States is turned over to another government when the United States has substantial grounds to believe that such person will be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment;

FURTHER RESOLVED, That the American Bar Association urges that 18 U.S.C. §§2340(1) and 2340A be amended to encompass torture wherever committed, and regardless of the underlying motive or purpose;

FURTHER RESOLVED, That the American Bar Association urges the United States government to pursue vigorously (1) the investigation of violations of law, including the War Crimes Act and the Uniform Code of Military Justice, with respect to the mistreatment or rendition of persons within the custody or under the physical control of the United States government, and (2) appropriate proceedings against persons who may have committed, assisted, authorized, condoned, had command responsibility for, or otherwise participated in such violations;

FURTHER RESOLVED, That the American Bar Association urges the President and Congress, in addition to pending congressional investigations, to establish an independent, bipartisan commission with subpoena power to prepare a full account of detention and interrogation practices carried out by the United States, to make public findings, and to provide recommendations designed to ensure that such practices adhere faithfully to the Constitution and laws of the United States and treaties to which the United States is a party, including the Geneva Conventions, the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and related customary international law, including Article 75 of the 1977 Protocol I to the Geneva Conventions;

FURTHER RESOLVED, That the American Bar Association urges the United States government to comply fully and in a timely manner with its reporting obligations as a State Party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

FURTHER RESOLVED, That the American Bar Association urges that, in establishing and executing national policy regarding the treatment of persons within the custody or under the physical control of the United States government, Congress and the Executive Branch should consider how United States practices may affect (a) the treatment of United States persons who may be captured and detained by other nations and (b) the credibility of objections by the United States to the use of torture or other cruel, inhuman or degrading treatment or punishment against United States persons.

REPORT

INTRODUCTION


The use of torture and cruel, inhuman or degrading treatment by United States personnel in the interrogation of prisoners captured in the Afghanistan and Iraq conflicts has brought shame on the nation and undermined our standing in the world. While the U.S. government has acknowledged, and is moving to punish, the acts at Abu Ghraib that have been documented on videotape, this does not address the substantial, fundamental concerns regarding U.S. interrogation policy and the treatment of detainees.

The U.S. government maintains that its policies comport with the requirements of law, and that the violations at Abu Ghraib represent isolated instances of individual misconduct. But there apparently has been a widespread pattern of abusive detention methods. Executive Branch memoranda were developed to justify interrogation procedures that are in conflict with long-held interpretations and understandings of the reach of treaties and laws governing treatment of detainees. Whether and to what extent the memoranda were relied upon by U.S. officials may be open to question, but it is clear that those legal interpretations do not represent sound policy, risk undercutting the government’s ability to assert any high moral ground in its “war on terrorism”, and put Americans at risk of being tortured or subjected to cruel, inhuman or degrading treatment by governments and others willing to cite U.S. actions as a pretext for their own misconduct.

The American public still has not been adequately informed of the extent to which prisoners have been abused, tortured, or rendered to foreign governments which are known to abuse and torture prisoners. There is public concern that the investigations under way to identify those accountable for prisoner abuse are moving slowly, and are too limited in scope. We do not yet know who is being detained, where they are, what are the conditions of their detention and interrogation, which agencies and personnel are exercising authority over them, who made the decisions regarding U.S. detention policy, and what, precisely, is the U.S. policy toward treatment of detainees.

It is incumbent upon this organization, which makes the rule of law its touchstone, to urge the U.S. government to stop the torture and abuse of detainees, investigate violations of law and prosecute those who committed, authorized or condoned those violations, and assure that detention and interrogation practices adhere faithfully to the Constitution, laws and treaties of the United States and related customary international law.

BACKGROUND

In conducting military operations in Afghanistan and Iraq, and in undertaking other acts related to the “war on terrorism”, the United States has detained large numbers of persons believed to be involved in activities in furtherance of terrorism or in opposition to U.S. military actions. There was great interest in obtaining information from these detainees regarding upcoming actions against U.S. forces and planned terrorist attacks. From the outset, questions were raised regarding the lengths to which United States personnel could go to extract information from detainees [1]. High-level legal memoranda dating from early 2002 [2] sketched out the legal positions which could be advanced to defend interrogation techniques which had not previously been considered legal or appropriate for use by U.S. personnel and were beyond standard military doctrine. [3]

Allegations of the use of interrogation techniques long considered to be torture or cruel, inhuman or degrading treatment began to surface in connection with interrogations of persons captured during the conflict in Afghanistan. The first public acknowledgement of these allegations came in December 2002, when the U.S. military announced that it had begun a criminal investigation into the death of a 22 year-old Afghan farmer and part-time taxi driver who had died of “blunt force injuries to lower extremities complicating coronary artery disease” while in U.S. custody at Bagram Air Force Base in Afghanistan. [4]

The American public has now learned that in December 2002, Secretary of Defense Rumsfeld approved a series of harsh questioning techniques for use in Guantanamo; novel techniques, including use of dogs to scare prisoners, were authorized in Iraq; and only after the Abu Ghraib scandal brought U.S. interrogation procedures into public view was there a substantial scaling back of the authorized techniques in Iraq. [5] In addition, while the Department of Defense (“DOD”) exercises control over thousands of detainees, the Central Intelligence Agency (“CIA”) is conducting a secret detention operation, including an extensive program in Afghanistan. [6] While the details of this operation are not being disclosed, Secretary of Defense Donald Rumsfeld has admitted to keeping the identity of a suspect secret, and hiding him from the International Committee of the Red Cross (“ICRC”), at the request of the CIA. [7] The ICRC has criticized the U.S. for not providing the ICRC with notification of, or access to, other persons in U.S. custody. [8]

Allegations of abusive techniques reportedly being practiced by DOD and CIA personnel and U.S. government contractors at U.S. detention facilities in Iraq and Afghanistan include: forcing detainees to stand or kneel for hours in black hoods or spray- painted goggles, 24-hour bombardment with lights, “false-flag” operations meant to deceive a captive about his whereabouts, withholding painkillers from wounded detainees, confining detainees in tiny rooms, binding in painful positions, subjecting detainees to loud noises, and sleep deprivation. [9] In addition, the U.S. is reportedly “rendering” suspects to the custody of foreign intelligence services in countries where the practice of torture and cruel, inhuman or degrading treatment during interrogation is well-documented. [10]

The abusive treatment of detainees became consistent front-page news in April 2004, when videotapes circulated showing extensive torture and abusive treatment by United States personnel of detainees in the Abu Ghraib prison in Baghdad. These disclosures were followed by further charges of severe mistreatment by former detainees in Afghanistan, Iraq and the Guantanamo Naval Base. Military sources indicate that over 30 prisoners have died in U.S. custody [11] and military officials have acknowledged two prisoner deaths they consider to be homicides and are investigating another 12 deaths. [12] Prison guards charged that intelligence officers told them to “soften up” the Iraqi prisoners, with no explanation as to what that meant. [13] Over 100 cases of misconduct in Iraq and Afghanistan have now been reported. [14]

As the Department of Defense and the CIA were preparing and implementing their approach to interrogations, a series of memoranda were being prepared by various high-ranking legal officials in the Executive Branch which appear designed to provide a legal basis for going beyond established policies with regard to treatment of detainees. These memoranda set out a series of arguments for restrictive interpretation of the laws and treaties relevant to the subject, so as to greatly curb their effect. One example, in the August 1, 2002 memorandum from the Department of Justice Office of Legal Counsel to Alberto R. Gonzales, Counsel to the President, (recently rescinded by the Justice Department) concluded that for an act to constitute torture as defined in 18 U.S.C. §2340, “it must inflict pain that is difficult to endure”, “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” [15]

Beyond their strained interpretation of the law, the memoranda attempted to craft an overall insulation from liability by arguing that the President has the authority to ignore any law or treaty that he believes interferes with the President’s Article II power as Commander-in-Chief. In one such example, government lawyers argued that, for actions taken with respect to “the President’s inherent constitutional authority to manage a military campaign, 18 U.S.C. §2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.” [16]

These documents, [17] which were released publicly after they were widely leaked, purported to provide authority for an aggressive effort to extract information from detainees using means not previously sanctioned. We do not construe the giving of good faith legal advice to constitute endorsement or authorization of torture. Moreover, it is unclear to what extent these memoranda represented or formed the basis for official policy. However, what does seem clear is that the memoranda and the decisions of high U.S. officials at the very least contributed to a culture in which prisoner abuse became widespread.

The Administration has acknowledged that the conduct that was featured in the Abu Ghraib tapes violated the law, and pledged that those who committed the violations would be brought to justice. In addition, at least six investigations are under way with regard to the abuse of detainees. [18] It is important these investigations be thorough and timely, and that they be conducted by officers and agencies with the scope and authority to reach all those who should be held responsible.

LEGAL STANDARDS

The Convention Against Torture


The United States’ obligation to prohibit and prevent the torture and cruel, inhuman or degrading treatment of detainees in its custody is set forth in the Convention Against Torture And Other Cruel, Inhuman, or Degrading Treatment (“CAT”), to which the U.S. is a party. [19] Under CAT, there are no exceptional circumstances that warrant torture, and extradition or other rendering of a person to a country that would likely subject that person to torture is prohibited. The United Nations Committee Against Torture, created by CAT, monitors implementation of CAT, considers country reports and issues decisions.

When the U.S. ratified CAT in 1994, it did so subject to a reservation providing that the U.S. would prevent “cruel, inhuman or degrading treatment” insofar as such treatment is prohibited under the Fifth, Eighth, and/or Fourteenth Amendments. [20] Thus, the U.S. is obligated to prevent not only torture, but also conduct considered cruel, inhuman or degrading under international law if such conduct is also prohibited by the Fifth, Eighth and Fourteenth Amendments.

In interpreting U.S. obligations, we look to the U.N. Committee Against Torture’s interpretations of CAT as well as U.S. case law decided in the immigration and asylum law context, under the Alien Tort Claims and Torture Victim Protection Acts and concerning the treatment of detainees and prisoners under the Fifth, Eighth or Fourteenth Amendments. Under these interpretations, measures such as severe sleep deprivation, the threat of torture, and forcing someone to sleep on the floor of a cell while handcuffed following interrogation constitutes torture [21] The U.N. Committee found that such measures as physical restraints in very painful conditions, being hooded, and using cold air to chill – all measures of which United States interrogators are accused of using – constitute cruel, inhuman or degrading treatment. [22]

The United States’ attempt to comply with its obligation under CAT to criminalize torture is codified in 18 U.S.C. §2340A. Section 2340A criminalizes conduct by a U.S. national or a foreign national present in the U.S. who, acting under color of law, commits or attempts to commit torture outside the United States. The statute is exclusively criminal and may not be construed as creating any right enforceable in a civil proceeding. It is also narrower in scope than CAT. Section 2340A generally applies to acts committed by U.S. nationals overseas (everywhere except “all areas under the jurisdiction of the United States, including any of the places described in sections 5 and 7 of this title and §46501(2) of Title 49.”) When the section was enacted the reach of the cross-referenced provisions, notably 18 U.S.C. §7, was uncertain. [23] However, §7 was broadened in the USA PATRIOT Act to clarify jurisdiction over crimes committed against U.S. citizens on U.S. property abroad by extending U.S. criminal jurisdiction over certain crimes committed at its foreign diplomatic, military and other facilities (which would encompass extraterritorial detention centers under U.S. jurisdiction) and by cross-reference excluded those places from the reach of §2340A.

Section 2340A defines torture to be any “act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain…” The Administration has interpreted this “specific intent” language to virtually eliminate its use against torturers: [E]ven if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith.” [24] So long as the purpose is to get information, this interpretation suggests that any means may be used. This language clearly needs to be restricted to facilitate meaningful enforcement of CAT by the United States. The U.S. did not enact a specific criminal statute outlawing torture within the United States, out of deference to federal-state relations and because it determined that existing federal and state criminal law was sufficient to cover any domestic act that would qualify as torture under CAT. [25]

The Uniform Code of Military Justice may be used to prosecute in courts-martial certain acts of ill-treatment carried out, whether in the United States or overseas, by American military personnel and possibly certain civilians, such as CIA agents, accompanying such personnel. The UCMJ is the most substantively extensive body of federal criminal law relating to interrogation of detainees by U.S. military personnel. The UCMJ prohibits such persons from subjecting detainees to torture and “cruelty and maltreatment” regardless of the applicability of the constitutional rights exception to CAT. [26] There is no civilian parallel to the provisions of the UCMJ. Recent events make a persuasive case that the inapplicability of state law to U.S. facilities abroad and the lack of other federal criminal law comparable to §2340A leaves a gap in anti-torture law that should be filled.

Unfortunately the U.S. has never enforced 18 U.S.C. § 2340A, and has thereby fallen far short of its obligations under international law and its professed ideals. It has failed to utilize the statute to prosecute either U.S. agents suspected of committing torture outside the jurisdiction of the U.S. or foreign torturers living within the United States. [27] In addition, the United States is out of compliance with the requirement under Article 19 of CAT that it report to the United Nations Committee Against Torture every four years on measures taken to give effect to its undertakings under the Convention. The Second report was due in 1999, and the U.N. Committee has written to the United States asking for submission of the overdue report by October 1, 2004.

The Geneva Conventions

Geneva Convention III Relative to the Treatment of Prisoners of War (“Geneva III”) flatly prohibits “any form of coercion” of POWs in interrogation – the most protective standard of treatment found in international law. Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (“Geneva IV”) protects “civilian” detainees who qualify as “protected persons” from “coercion.” [28]

The U.S., Iraq and Afghanistan are all parties to the Geneva Conventions. Article 2 common to all four Conventions provides that the Conventions “apply to all cases of declared war or of any other armed conflict” between two or more parties to the Conventions so long as a state of war is recognized by a party to the conflict. The Conventions also apply to all cases of partial or total occupation of the territory of a signatory, even if the occupation meets with no armed resistance. See Geneva Conventions, Art. 2. Signatories to the Conventions are bound by its terms regardless of whether any other party to the conflict is a signatory. Id.

The requirements of humane treatment embodied in Common Article 3 of the Geneva Conventions and Article 75 of Additional Protocol I protect all detainees captured in situations of international or internal armed conflict, regardless of “legal” status. [29] Of course, all detainees - including those captured outside of Afghan territory or in connection with the “War on Terror” - are entitled to the protection provided by human rights law, including CAT, the ICCPR and customary international law.

The Administration’s official position is that the Geneva Conventions apply to the War in Afghanistan [30] and the occupation of Iraq, [31] but do not apply to Al Qaeda detainees, and that neither the Taliban nor Al Qaeda detainees are entitled to prisoner of war (“POW”) status thereunder. Initially, the Administration’s position was that the Geneva Convention did not apply to the Taliban, but it relented, except with regard to withholding POW status. [32] The legal underpinning of this approach is found in the internal government documents dating from early 2002 cited above. [33] The stated purposes of this analysis were to preserve maximum flexibility with the least restraint by international law and to immunize government officials from prosecution under the War Crimes Act, which renders certain violations of the Geneva Conventions violations of U.S. criminal law.

The Administration has stated that it is treating Taliban and Al Qaeda detainees “humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949,” and that the detainees “will not be subjected to physical or mental abuse or cruel treatment.” [34] However, the Administration has never explained how it determines what interrogation techniques are “appropriate” or “consistent with military necessity,” or how it squares that determination with U.S. obligations under human rights and customary international law.

Furthermore, the Administration’s approach raises serious issues regarding the application of the Geneva Conventions to the War on Terror, notably the minimal protections of Common Article 3 and the actual standards applied in the field. The internal Administration memoranda argue that Common Article 3 does not apply at all to Al Qaeda’s activities in the Afghanistan conflict because, inasmuch as Al Qaeda operated cross-border and with support from persons in countries outside Afghanistan, that conflict is not an armed conflict of a noninternational character within the meaning of Article 3. In fact, the Geneva Conventions are structured in terms of international armed conflicts (between State parties) and non-international (non-inter-State) conflict. There is no indication that there is any category of armed conflict that is not covered by the Geneva Conventions. [35] The Geneva Conventions apply to the totality of a conflict including the regular forces, irregulars (whether or not privileged combatants) and civilians.

With respect to interrogation in armed conflict, Common Article 3 requires humane treatment generally and specifically forbids “cruel treatment and torture” or “outrages upon personal dignity, in particular humiliating and degrading treatment.” Such provisions were violated not only by the conduct photographed at Abu Ghraib, but also by practices reported to have been engaged in at other U.S. facilities in Iraq, and, if reports are accurate, also in Afghanistan.

The U.S. has acknowledged that its presence in Iraq is an “occupation” within the meaning of Geneva IV. [36] The U.S., as occupying power, is consequently subject to provisions for the benefit of “protected persons,” [37] including Article 31’s prohibition of “physical or moral coercion to obtain information from them or third parties”. [38] Should the occupation be considered terminated, in any armed conflict that may continue between remaining U.S. armed forces in Iraq and Iraqi resistance – a non-international (non-state) armed conflict – the minimal protections of Common Article 3 of the Geneva Conventions would apply.

It is clear that not only the abuses in Abu Ghraib but also certain practices contemplated by the “Interrogation Rules of Engagement” [39] – such as extended sleep deprivation and stressful positions – amount to “physical or moral coercion” and are, therefore, violations of Geneva IV. [40]

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U.S. military authorities maintain that interrogation of certain detainees possessing “high value intelligence” does not have to comply with certain restrictions of Geneva IV because of an exception provided in Article 5 of Geneva IV with respect to persons who threaten the security of a state so-called “security detainees”. [41] This view is based on a misinterpretation of the plain meaning and purpose of Article 5.

Article 5 provides for two categories of temporary exceptions to certain of its standards in the case of detainees who are definitely suspected of being threats to the security of a Party. The first paragraph of Article 5 provides that “where in the territory of a Party to the conflict,” that Party determines that an individual protected person is definitely suspected of, or engaged in, activities hostile to the security of the State, the Party can suspend that person’s rights and privileges under Geneva IV, where the exercise of such rights are prejudicial to the security of the State. [42] The plain language of this paragraph limits a Party’s ability to suspend certain protections of Geneva IV to situations where a party to the conflict determines that a protected person is posing a security risk in that party’s territory. Accordingly, this paragraph plainly has no application to protected persons detained by the U.S. in Iraq, because such detainees are not persons posing a security risk in the territory of the United States. [43]

The second exception [44] applicable to occupation permits the Occupying Power, where absolute military necessity so requires, to temporarily deny “rights of communication” – but no other rights – for a person detained as a spy or saboteur or as a threat to the security of the Occupying Power. Therefore, during occupation, even detainees who pose a security risk to the Occupying Power have the same protection against coercion as any other detainee.

Application of Geneva Conventions and the Anti-Torture Statute to Civilians

The War Crimes Act [45] criminalizes as a “war crime” the commission in the U.S. or abroad of a “grave breach” of the Geneva Conventions, violation of Common Article 3, and certain other international offenses, where the perpetrator or the victim is a member of the Armed Forces or a U.S. national. (With respect to the military, given the other recourse against active service members, the statute applies only to those who may have been discharged before prosecution and therefore were outside the jurisdiction of courts martial or who are being prosecuted jointly with civilians.)

The jurisdictional basis for enforcing the War Crimes Act against civilian contractors or others “accompanying” the Armed Forces outside the U.S. is likely to be the Military Extraterritorial Jurisdiction Act (“MEJA”). [46] Indeed, the Department of Justice has recently announced that it is asserting jurisdiction over, and is prosecuting, a civilian contractor in Iraq. [47] A significant issue under MEJA is whether a contractor was “employed” by the Armed Forces (expressly covered by the Act), was employed by a contractor serving the Armed Forces or was employed by the CIA. In the latter cases, the reach of MEJA would depend on whether the defendant was “accompanying” the Armed Forces, a factual matter to be determined on a case-by-case basis.

Other International Legal Standards that Bind the United States

International law offers guidance in interpreting CAT. Some of these international legal standards are, without question, binding on the U.S., such as: the International Covenant on Civil and Political Rights (the “ICCPR”), [48] the law of jus cogens and customary international law. The Human Rights Committee established under the ICCPR has found prolonged solitary confinement, threatening a victim with torture, and repeated beatings to violate the Covenant’s prohibition against cruel, inhuman or degrading treatment or punishment. [49] Other sources, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, [50] also provide guidance.

Customary international law has long prohibited the state practice of torture, without reservation, in peace or in wartime. [51] In 1975, the United Nations General Assembly adopted by consensus the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Punishment. [52] The Torture Resolution together with CAT and the ICCPR – ratified by 133 and 151 States, respectively – embody the customary international law obligation to refrain from behavior which constitutes torture. [53] The prohibition of torture is, moreover, one of the few norms which has attained peremptory norm or jus cogens status, and is recognized as such by United States courts. [54] Jus cogens is defined as a peremptory norm “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” [55] While many international agreements expressly prohibit both torture and cruel, inhuman and degrading treatment, [56] it remains an open question as to whether jus cogens status extends to the prohibition against cruel, inhuman or degrading treatment. What is clear, however, is that cruel, inhuman and degrading treatment or punishment is prohibited by customary international law.

RECOMMENDATIONS

The above facts and law support the Recommendations, which address the following issues:

1. The United States must condemn the torture and abusive treatment of detainees within the custody or under the physical control of the U.S. government, including U.S. government contractors. Abuses at Abu Ghraib and elsewhere are strong evidence that in the war on terror this nation’s detention policies have lost their moral compass. Rather than seek to excuse or minimize these failings, the U.S. must take responsibility for violations of treaties and international law, condemn those violations, investigate all plausible allegations of violations, and punish all those responsible, no matter how high ranking. It is vital to ensure that this disgraceful behavior does not happen again. Any individual who alleges that he or she has been subjected to torture must be provided with a meaningful opportunity to complain to, and to have his/her case promptly and impartially examined by, competent authorities. Steps must be taken to ensure that the complainant and witnesses are protected against ill- treatment and intimidation.

2. The U.S. government must ensure compliance with the Geneva Conventions, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and related customary international law. In doing so, it should accept the time-honored interpretations of these instruments. They were designed to stop torture, not to stimulate an effort to narrow their scope beyond common sense meaning. The U.S. government should fully renounce the misguided interpretations found in its internal memoranda and clearly state a policy for treatment of detainees that would restore this nation’s standing among the countries of the world.

3. The U.S. government must honor and implement fully the four Geneva Conventions. It must acknowledge the applicability of Common Article 3 to all armed conflicts. There are no “black holes” in the Conventions’ scheme. Similarly, the Administration must acknowledge the very limited reach of the security exception of Article 5, and understand that the protections in the Convention are substantial, such that no POW’s may be coerced in any way. The United States should adhere to Geneva III’s requirement that any detainee whose POW status is in “doubt” is entitled to POW status — and, therefore, cannot be subjected to coercive treatment — until a competent tribunal, which must be convened promptly, determines otherwise. [57]

4. The U.S. government should recognize its responsibility to treat detainees in accordance with standards it would consider legal if perpetrated against an American prisoner. Before adopting restrictive interpretations of binding prohibitions against torture or other cruel, inhuman or degrading treatment, it should consider how such interpretations would affect captured U.S. service members or others serving abroad were such interpretations to be adopted by our adversaries.

5. The United States must not render detainees to nations that it has reason to believe would subject them to torture or other cruel, inhuman or degrading treatment. Rendition not only violates all basic humanitarian standards, but violates treaty obligations which make clear that a nation cannot avoid its obligations by having other nations conduct unlawful interrogations in its stead.

6. 18 U.S.C. §2340 should be amended in two significant ways. First, the definition of torture in §2340(1) should be revised to apply to all acts of torture regardless of the underlying motive or purpose of the perpetrator. This change would prevent this or any future administration from again arguing that the required showing of “specific intent” means that a jailer or interrogator should not be found liable under the statute when his underlying motive or purpose was not to inflict severe physical or mental pain or suffering but only to extract information. That interpretation truly makes a mockery of all the United States purports to stand for regarding human rights. Second, consistent with its obligation under Article 4 of CAT to ensure that all acts of torture are offenses under its criminal law, the U.S. must expand the geographic reach of §2340 so that the prescriptions of CAT are applicable to torture and cruel, inhuman or degrading treatment wherever committed.

7. The U.S. government must investigate violations of law with regard to mistreatment of persons under its control and bring appropriate proceedings against those responsible.

8. The extent of the prisoner abuse scandal is so great, and its ramifications so broad and lasting, that an independent investigation is necessary to identify how these practices evolved and their extent, and to make recommendations to assure they will not recur. This investigation should not be confined to allegations of criminal behavior. Rather, it should extend to all actions, decisions and policy development regarding the interrogation of detainees in the post- September 11th “war on terrorism” that played even a small part in creating a culture that could allow such extensive abuse to happen.

9. The United States, as a State Party to the Convention Against Torture and Other Cruel, Unusual or Degrading Treatment or Punishment, must fulfill its requirement under Article 19 of the Convention to report to the United Nations Committee Against Torture every four years on measures taken to give effect to its undertakings under the Convention.

10. The actions urged by these recommendations are necessary to protect American troops who may be detained by other nations that would be disinclined to honor their treaty commitments in light of the U.S. government’s failure to honor its own. Furthermore, these actions are necessary to re-establish the nation’s credibility in asserting the rights of people everywhere. The world’s most powerful nation must exercise its power while demonstrating its respect for the rule of law.

CONCLUSION

Al Qaeda and other terrorist organizations pose a real threat to the United States and other nations. That threat creates a tension between the need to obtain potentially life-saving information through interrogation and the legal standards banning torture and other cruel, inhuman or degrading treatment. But as a nation long pledged to the rule of law, we cannot resolve the tension by seeking to overcome that threat by violations of law. Condoning torture under any circumstances erodes one of the most basic principles of international law and human rights, places captured U.S. personnel at inordinate risk, and contradicts the basic values of a democratic state. Moreover, these violations feed terrorism by painting the United States as an arrogant nation above the law. The American Bar Association must go on record as supporting adherence to the rule of law as a fundamental principle, for when the rule of law suffers all who claim its benefits are less secure.

Respectfully submitted,

Bettina B. Plevan, President
Association of the Bar of the City of New York

Neal R. Sonnett, Chair
ABA Task Force on Treatment of Enemy Combatants

August 2004

GENERAL INFORMATION FORM

Submitting Entities: Association of the Bar of the City of New York
Bettina B. Plevan, President

Task Force on Treatment of Enemy Combatants
Neal R. Sonnett, Chair

1. Summary of Recommendation(s).

Through these Recommendations, the American Bar Association expresses its condemnation of any use of torture or other cruel, inhuman or degrading treatment or punishment upon persons within the custody or under the physical control of the United States government (including its contractors) and any approval or condoning of such measures by government lawyers, officials and agents.

The Recommendations urge the government to fully comply with the Constitution and laws of the United States and treaties to which the United States is a party, to ensure that no such person is subjected to such treatment or is turned over to another government when the United States has substantial grounds to believe that the person will be in danger of being subjected to such treatment.

The Recommendations also call for the amendment of 18 U.S.C. 2340 to encompass torture wherever committed, and whenever intentionally inflicted, without requiring proof of specific intent to torture, and urges the United States government to pursue vigorously the investigation of violations of law and bring appropriate proceedings against persons who may have committed, assisted, authorized, condoned, had command responsibility for, or otherwise participated in such violations.

The Recommendations call for an independent, bipartisan commission with subpoena power to prepare a full account of detention and interrogation practices carried out by the United States, to make public findings, and to provide recommendations designed to ensure that such practices adhere faithfully to the Constitution and laws of the United States and treaties to which the United States is a party.

Finally, the Recommendations urge that, in establishing and executing national policy regarding the treatment of persons within the custody or under the physical control of the United States government, Congress and the Executive Branch should consider how U.S. practices may affect the treatment of United States persons who may be captured and detained by other nations and the credibility of United States objection to such treatment against United States persons.

2. Approval by Submitting Entity:

This Recommendation and Report has been approved by the submitting entities, the Association of the Bar of the City of New York and the ABA Task Force on Treatment of Enemy Combatants. In addition, it has been approved by the governing bodies of the original cosponsors, the Criminal Justice Section, the Section of Individual Rights and Responsibilities, the Section of International Law and Practice, the Section of Litigation, the Center for Human Rights, the Beverly Hills Bar Association, and the Bar Association of San Francisco.

3. Has this or a similar recommendation been submitted to the House or Board previously?

No similar Recommendations are known to have been previously submitted.

4. What existing Association policies are relevant to this recommendation and how would they be affected by its adoption?

The ABA has a long history of advocating respect for the rule of law and treaties to which the United States is a party, including the Geneva Conventions of August 12, 1949, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and related customary international law, including Article 75 of the 1977 Protocol I to the Geneva Conventions,

This Recommendation would complement and extend those existing policies by urging that persons within the custody or under the physical control of the United States government (including its contractors) are not subjected to torture or other cruel, inhuman or degrading treatment or punishment, that such treatment is not approved or condoned by government lawyers, officials and agents, and that our nation fully respects and complies with its obligations under the Constitution, laws, and treaties of the United States.

5. What urgency exists which requires action at this meeting of the House?

Recent reports regarding the use of torture and cruel, inhuman or degrading treatment by United States personnel in the interrogation of prisoners captured in the Afghanistan and Iraq conflicts have brought international condemnation and undermined our standing in the world. United States interrogation policies and treatment of detainees present substantial, fundamental concerns that are currently being addressed by the Congress, and the American Bar Association should be heard on these critical issues.

6. Status of Legislation.

On May 6, 2004, House passed H. Res. 627, deploring the abuse of prisoners in the custody of the United States in Iraq and urging the Secretary of the Army to bring to swift justice any member of the Armed forces who has violated the Uniform Code of Military Justice.

On May 10, 2004, the Senate passed S. Res. 356, condemning the abuse of Iraq prisoners at Abu Ghraib prison, urging a full and complete investigation to ensure justice is served, and expressing support for all Americans serving nobly in Iraq.

On June 16, 2004, the United States Senate approved an amendment introduced by Senator Richard Durbin (D-IL) to S. 2400, the Defense Authorization bill for Fiscal Year 2005, which passed the Senate as amended on June 23, 2004. That amendment reaffirms the American commitment to refrain from engaging in torture or cruel, inhuman, or degrading treatment or punishment. It would require the Defense Secretary to issue guidelines to ensure compliance with this standard, provide these guidelines to Congress, and report to Congress any suspected violations of the prohibition on torture or cruel, inhuman or degrading treatment.

On June 23, 2004 Rep. Edward Markey (D-MA) introduced HR 4674, a bill to prohibit rendition of terrorism suspects to nations known to practice torture, which was referred to the House International Relations Committee.

On June 25, 2004, Rep. John Conyers (D-MI) introduced H. Res. 700, directing the Attorney General to transmit to the House of Representatives documents in his possession relating to the treatment of prisoners and detainees in Iraq, Afghanistan, and Guantanamo Bay. H. Res. 700 was scheduled for markup by the House Judiciary Committee on July 21, 2004.

On July 14, 2004, Rep. Duncan Hunter (D-CA) introduced H. Con. Res. 472, expressing the sense of Congress that the apprehension, detention, and interrogation of terrorists are fundamental elements in the successful prosecution of the Global War on Terrorism and the protection of the lives of United States citizens at home and abroad.

7. Cost to the Association.

The adoption of the Recommendation would not result in any direct costs to the Association. The only anticipated costs would be indirect costs that might be attributable to lobbying to have the Recommendations adopted and implemented by Congress and the Executive Branch. Such costs should be negligible since lobbying efforts would be conducted by existing staff members who already are budgeted to lobby on behalf of Association policies.

8. Disclosure of Interest. (If applicable)

No known conflict of interest exists.

9. Referrals.

Concurrently with submission of this report to the ABA Policy Administration Office, it is being circulated to the following entities in addition to the listed sponsors:

Standing Committees/Task Forces:
Law and National Security

Sections, Divisions and Forums:
Administrative Law
Government and Public Sector Lawyers
Judicial Division
National Conference of Federal Trial Judges
Law Student Division
Litigation
Young Lawyers Division

Affiliated Organizations:
The American Judicature Society
The Federal Bar Association
The National Conference of Bar Presidents

Other Entities:
United States Department of Defense
United States Department of Justice
United States Department of State

10. Contact Persons (Prior to the meeting).

Alan Rothstein
The Association of the Bar of the City of New York
42 West 44th Street
New York, NY 10036
Phone: 212-382-6623
Fax: 212-398-6634
Email: arothstein@abcny.org

Neal R. Sonnett, Chair
Task Force on Treatment of Enemy Combatants
Two South Biscayne Boulevard, Suite 2600
Miami, FL 33131-1804
Tel: 305-358-2000
Fax: 305-358-1233
Email: nrs@sonnett.com

Mark D. Agrast, Immediate Past Chair
Section of Individual Rights and Responsibilities
805 Fifteenth Street, N.W., Suite 400
Washington, D.C. 20005
Tel: 202-682-1611
Fax: 202-682-1867
Email: magrast@americanprogress.org

Jerome J. Shestack, Chair
Center for Human Rights
Wolf Block Schorr & Solis-Cohen
1650 Arch Street, 22nd Floor
Philadelphia, PA 19103-2097
Tel: 215-977-2290
Fax: 215-977-2787
Email: jshestack@wolfblock.com

Stephen Saltzburg, Delegate
Criminal Justice Section
George Washington University School of Law
2000 H Street, NW - Room 301
Washington, DC 20052
Tel: 202-994-7089
Fax: 202- 994-7143
Email: ssaltz@law.gwu.edu

C. Elisia Frazier, Delegate,
Section of Individual Rights and Responsibilities
1310 W. Lexington Avenue
Fort Wayne, IN 46807
Tel: 260-745-3044
Fax: 260-455-5403
Email: cef1938@comcast.com

William M. Hannay III, Delegate
Section of International Law and Practice
Schiff Hardin & Waite
233 S. Wacker Drive
Chicago, IL 60606-6306
Tel: 312-258-5617
Fax: 312-258-5700
Email: whannay@schiffhardin.com

Albert J Krieger, Delegate
National Association of Criminal Defense Lawyers
1899 South Bayshore Drive
Miami, FL 33133-3307
Tel: 305-854-0050
Fax: 305-285-1761
Email: ajkrieger@ajkriegerlaw.com

11. Contact Persons (Who will present the report to the House)

Bettina B. Plevan, President
The Association of the Bar of the City of New York
42 West 44th Street
New York, NY 10036
Tel: 212-382-6700 (ABCNY) or 212-969-2900 (Office)
Fax: 212-768-8116
Email: bplevan@proskauer.com

Neal R. Sonnett, Chair
Task Force on Treatment of Enemy Combatants
Two South Biscayne Boulevard, Suite 2600
Miami, FL 33131-1804
Tel: 305-358-2000
Fax: 305-358-1233
Email: nrs@sonnett.com

Mark D. Agrast, Immediate Past Chair
Section of Individual Rights and Responsibilities
805 Fifteenth Street, N.W., Suite 400
Washington, D.C. 20005
Tel: 202-682-1611
Fax: 202-682-1867
Email: magrast@americanprogress.org

Jerome J. Shestack, Chair
Center for Human Rights
Wolf Block Schorr & Solis-Cohen
1650 Arch Street, 22nd Floor
Philadelphia, PA 19103-2097
Tel: 215-977-2290
Fax: 215-977-2787
Email: jshestack@wolfblock.com

Stephen Saltzburg, Delegate
Criminal Justice Section
George Washington University
School of Law
2000 H Street, NW - Room 301
Washington, DC 20052
Tel: 202-994-7089
Fax: 202- 994-7143
Email: ssaltz@law.gwu.edu

C. Elisia Frazier, Delegate,
Section of Individual Rights and Responsibilities
1310 W. Lexington Avenue
Fort Wayne, IN 46807
Tel: 260-745-3044
Fax: 260-455-5403
Email: cef1938@comcast.com

William M. Hannay III, Delegate
Section of International Law and Practice
Schiff Hardin & Waite
233 S. Wacker Drive
Chicago, IL 60606-6306
Tel: 312-258-5617
Fax: 312-258-5700
Email: whannay@schiffhardin.com

Albert J Krieger, Delegate
National Association of Criminal Defense Lawyers
1899 South Bayshore Drive
Miami, FL 33133-3307
Tel: 305-854-0050
Fax: 305-285-1761
Email: ajkrieger@ajkriegerlaw.com

_______________
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Sun Oct 13, 2013 4:13 am

PART 2 OF 2 (American Bar Association Report)

Footnotes:

1. See, e.g., Dana Priest & Bradley Graham, U.S. Struggled Over How Far to Push Tactics, WASH. POST, June 24, 2004, at A01 (hereinafter “U.S. Struggled”).

2. See Memorandum from John Yoo, Deputy Assistant Attorney General, to William J. Haynes, General Counsel, DOD (January 9, 2002)

3. See Douglas Jehl, Detainee Treatment; U.S. Rules on Prisoners Seen as a Back and Forth of Mixed Messages to G.I.’s, N.Y. TIMES, June 22, 2004 at A1 (hereinafter, “Detainee Treatment”); U.S. Struggled, supra note 1.

4. Carlotta Gall, U S. Military Investigating Death of Afghan In Custody, N.Y. TIMES, Mar. 4, 2003, at A14. According to the New York Times, another Afghan man died of a pulmonary embolism or a blood clot in the lung while in U.S. custody at Bagram on December 3, 2002. Both men died within days of arriving at Bagram. Human Rights Watch criticized the U.S. government for failing, one year after the first two deaths at Bagram — which were classified as homicides, to release the results of its investigation. See Press Releases & Documents, Voice of America, Rights Group Criticizes U.S. Military for Treatment of Afghan Detainees (Dec. 1, 2003) (printed at 2003 WL 66801402).

5. See, e.g., U.S. Struggled, supra note 1; Editorial, Torture Policy, WASH. POST, June 16, 2004, at A26; Julian Coman, Interrogation abuses were ‘approved at highest levels’, London Daily Telegraph, June 13, 2004 (http://www.portal.telegraph.co.uk/core/ ... ws/2004/06).

6. See Dana Priest & Joe Stephens, Secret World of U.S. Interrogation; Long History of Tactics in Overseas Prisons in Coming to Light, WASH. POST, May 11, 2004, ar A01; Seymour M. Hersh, Annals of National Security; The Gray Zone, NEW YORKER, May 24, 2004 (http://www.newyorker.com/printable/?fact/040524fa_fact).

7. See U.S. Struggled, supra note 1.

8. See U.S. Hiding Terror Suspects? Red Cross Wants Access to Detainees, ASSOC. PRESS, June 13, 2004.

9. See, e.g., Dana Priest & Barton Gellman, U.S. Decries Abuse but Defends Interrogations; “Stress and Duress” Tactics used on Terrorism Suspects Held in Secret Overseas Facilities, WASH. POST, Dec. 26, 2002, at A01 (hereinafter “U.S. Decries Abuse”); Eric Lichtblau & Adam Liptak, Questioning to Be Legal, Humane and Aggressive, The White House Says Now, N.Y. TIMES, Mar. 4, 2003, at A13; Jess Bravin & Gary Fields, How do U.S. Interrogators Make A Captured Terrorist Talk, WALL ST. J., Mar 4, 2003, at B l; Tania Branigan, Ex-Prisoners Allege Rights Abuses By U.S. Military, WASH. POST, Aug. 19, 2003, at A02.

10. Captives have reportedly been “rendered” by the U.S. to Jordan, Egypt, Morocco, Saudi Arabia and Syria, in secret and without resort to legal process. See, e.g., Peter Finn, Al Qaeda Recruiter Reportedly Tortured; Ex-Inmate in Syria Cites Others’ Accounts, WASH. POST, Jan. 31, 2003, at A14; U.S. Decries Abuse, supra note 8; Rajiv Chandrasekaran & Peter Finn, US. Behind Secret Transfer of Terror Suspects, WASH. POST, Mar. 11, 2002, at A01.

11. New Probes Of Prison Deaths, CBSNEWS.com, June 30, 2004.

12. 14 prisoner deaths under investigation, MSNBC (http://www.msnbc.msn.com/id/4901264), May 5, 2004.

13. See Detainee Treatment, supra note 3.

14. Editorial, Remedies for Prisoner Abuse, WASH. POST, June 7, 2004, at A18.

15. Memorandum, at 1. It should be noted there are JAG officers who have expressed concerns regarding the approach of DOD and that outlined in these internal memoranda with regard to compliance with the Geneva Conventions and the methods used to interrogate detainees. See, e.g., Adam Liptak, U.S. Barred Legal Review of Detentions, Lawyer Says, N.Y. TIMES, May 19, 2004, at A14.

16. Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations, 6 March 2003, at 21 (hereinafter Working Group Report).

17. See A Guide to the Memos on Torture, http://www.nytimes.com/ref/internationa ... GUIDE.html (posted June 26, 2004).

18 .See “Detainee Treatment”, supra note 3.

19. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, G.A. Res. 46, U.N. GAOR 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984) (“CAT”).

20. 136 Cong. Rec. S17486-01, 1990 WL 168442.

21. Concluding Observations concerning Republic of Korea (1996), U.N. Doc. No. a/52/44, at para. 56; Concluding Observations concerning New Zealand (1993), U.N. Doc. No. A/48/44, at para. 148; See Inquiry under Article 20: Committee Against Torture, Findings concerning Peru (2001), U.N. Doc. No. A/56/44, at para. 35.

22. Concluding Observations concerning Israel (1997), U.N. Doc. No. A/52/44, at para. 257.

23. Compare U.S. v. Gatlin, 216 F.3d 207 (2d Cir 2000) with U.S. v. Corey, 232 F.3d 1166 (9th Cir 2000). However, the question was substantially mooted for most purposes by the passage of the Military Extraterritorial Jurisdiction Act of 2000, PUB. L. 106-503, 112 STAT. 2488, which subjects persons accompanying the armed forces abroad to U.S. civilian criminal jurisdiction, even if outside the “special maritime and territorial jurisdiction.”

24. Working Group Report, supra note 15, at 9.

25. See U.S. Dept. of State, Initial Report of the United States of America to the U.N. Committee against Torture, U.N. Doc. CAT/C/28/Add.5 (1999), at para. 178.

26. 10 U.S.C.§893.

27 Amnesty International Report Charges U.S. is “Safe Haven” for Torturers Fleeing Justice; Eight Years On, U.S. Has Failed to Prosecute Single Individual for Torture, Amnesty International Press Release (2002) (available at http://www.amnestyusa.org/news/2002/usa04102002.html). See also William J. Aceves UNITED STATES OF AMERICA: A SAFE HAVEN FOR TORTURERS (Amnesty International USA Publications 2002), at 50.

28. See Section II(C) for a discussion of who qualifies as a “protected person” under Geneva IV.

29. “Common Article 3” provides that detainees “shall in all circumstances be treated humanely” and prohibits the following acts “at any time and in any place whatsoever”: “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;” and “outrages upon personal dignity, in particular humiliating or degrading treatment.” Common Article 3 also provides that the “wounded and sick shall be collected and cared for.”

Although neither the United States nor Afghanistan is a party to Additional Protocol I, it is generally acknowledged that relevant sections of Protocol I constitute either binding customary international law or good practice, in particular the minimum safeguards guaranteed by Article 75(2). See Michael J. Matheson, Remarks on the United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, reprinted in The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT’L L. & POL’Y 415, 425-6 (1987).

Article 75 provides that “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions” “shall be treated humanely in all circumstances” and that each state Party “shall respect the person, honour, convictions and religious practices of all such persons.” Paragraph 2 of Article 75 prohibits, “at any time and in any place whatsoever, whether committed by civilian or military agents”: “violence to the life, health, or physical or mental well- being of persons, in particular ... torture of all kinds, whether physical or mental,” “corporal punishment,” and “mutilation”; “outrages upon personal dignity, in particular humiliating and degrading treatment . . . and any form of indecent assault”; and “threats to commit any of the foregoing acts.”

The U.S. rejection of Additional Protocol I was explained in a presidential note to the Senate in the following terms: “Protocol I ... would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves. These problems are so fundamental in character that they cannot be remedied through reservations. . . .” See 1977 U.S.T. LEXIS 465.

30. See, e.g., Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 96 AM. J. INT’L L. 461, 476-77 (2002).

31. S.C. Res. 1483, U.N. Doc s/Res/1483 (2003).

32. See White House Fact Sheet: Status of Detainees at Guantanamo (February 7, 2002) (available at http://www.whitehouse.gov/news/releases ... 07-13.html).

33. See, e.g., Michael Isikoff, “Double Standards? A Justice Department memo proposes that the United States hold others accountable for international laws on detainees—but that Washington did not have to follow them itself” Newsweek, May 22, 2004, available at <www.msnbc.msn.com/id/5032094/site/newsweek/>.

34. See White House Fact Sheet: Status of Detainees at Guantánamo (Feb. 7, 2002) (available at http://www.whitehouse.gov/news/releases ... 07-13.html).

35. The authoritative ICRC Commentary refers to the application of the Conventions “to all cases of armed conflict, including internal ones” at 26 (italics in original). Whether a particular event is “armed conflict” is another question. There is no doubt that initial U.S. air and ground operations in Afghanistan and certainly the invasion of Iraq were armed conflict. In circumstances not constituting armed conflict, other legal standards apply, including CAT and the International Covenant on Civil and Political Rights (“ICCPR”), as more fully discussed in the Report.

36. Security Council Resolution 1483, passed on May 22, 2003, constitutes a formal recognition by the UN of the occupation. See S.C. Res. 1483, U.N. Doc S/Res/1483 (2003). This resolution also notes the letter from the Permanent Representatives of the U.S. and U.K. to the President of the Security Council, which formally announced to the UN the creation of the Coalition Provisional Authority “to exercise powers of government temporarily.” See Letter, from the Permanent Representatives of the UK and the US to the UN addressed to the President of the Security Council, U.N. Doc. S/2003/538 (May 8, 2003).

37. On the Geneva Conventions and Geneva IV generally, see Part Il of our Report.

38. The ICRC Report also cites Articles 5, 27, 32 and 33 of Geneva IV. See ICRC Report at ¶8.

39. In Senate hearings the Pentagon disclosed “Interrogation Rules of Engagement”, which listed certain interrogation practices and specified a second group of practices that required approval of the Commanding General (Lt. Gen. Ricardo Sanchez). This second group included: “Isolation [solitary confinement] for longer than 30 days, Presence of Mil [Military] Working Dogs, Sleep Management (72 hrs max), Sensory Deprivation (72 hours max), Stress Positions (No longer than 45 min)”. A week following the disclosure of this document, General Sanchez announced that none of the practices in this second group, except for isolation, would now be permitted.

Such form of Rules of Engagement is understood to be one of at least four versions adopted at various times in the fall of 2003 for use in one or more Coalition facilities. It is cited here as illustrative of the approach taken to interrogation standards.

40. A February 2004 report of the International Committee of the Red Cross (“ICRC”), only recently disclosed, describes abuses that are “part of the process” in the case of persons arrested in connection with suspected security offenses or deemed to have “intelligence value.” Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq during Arrest, Internment and Interrogation, February 2004 (“ICRC Report”) http://www.derechos.ore/nizkor/us/doc/i ... b-2004.pdf .

41. For example, in a December 24, 2003 Letter from Brigadier General Janis L. Karpinski to the ICRC regarding ICRC’s visits to Camp Cropper and Abu Ghraib in October 2003 , General Karpinski states: “[W]hile the armed conflict continues, and where `absolute military security so requires’ security internees will not obtain full GC protection as recognized in GCIV/5, although such protection will be afforded as soon as the security situation in Iraq allows it.” See also Douglas Jehl & Neil A. Lewis, U.S. Disputed Protected Status of Iraq Inmates, May 24, 2004.

42. Specifically, Article 5 provides in part:

Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State…


See Geneva IV, Art. 5 (emphasis added).

43. Even in a case covered by paragraph I of Article 5, the detainee must be treated “with humanity.” See the definition of humane treatment in Common Article 3 of the Geneva Conventions quoted and discussed below, which would clearly exclude the abuses found at Abu Ghraib and probably a number of the practices contemplated by the “Interrogation Rules of Engagement.” If the first paragraph’s broad right of derogation were interpreted to apply to occupied territory, it would make the second paragraph’s narrow derogation superfluous, contrary to principles of interpretation that seek to give meaning to all provisions.

44. The second paragraph of Article 5 provides, in part:

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.


45. 18 U.S.C. § 2441 (2004) provides, in relevant part:

(a) Offense. Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances. The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States…

(c) Definition. As used in this section, the term “war crime” means any conduct -

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party… … (3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with noninternational armed conflict…


See 18 U.S.C. § 2441. An internal Administration document referenced above argued against application of the Geneva Conventions specifically to develop a defense against application of the War Crimes Act, in case government officials were alleged to have committed grave breaches of the Geneva Conventions and other offenses thereunder.

46. The Military Extraterritorial Jurisdiction Act provides, in relevant part:

(a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States—

(1) while employed by or accompanying the Armed Forces outside the United States; or

(2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice), shall be punished as provided for that offense.


See 18 U.S.C. § 3261. Application to members of the Armed Forces is, however, limited to those no longer subject to the UCMJ (usually because of discharge) or accused of committing an offense with civilian defendants.

47. David Kravets, Patriot Act used to prosecute U.S. civilian, CLEVE. PLAIN DEALER, June 19, 2004.

48. G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316.

49. See Floyd Howell v. Jamaica, Communication No. 798/1998 (20 January 1998), CCPR/C/79/D/798/1998; Víctor Alfredo Polay Campos, Communication No. 577/1994 (6 November 1997), CCPR/C/61/D/577/1994; Dave Marais, Jr. v. Madagascar, Communication No. 49/1979 (19 April 1979), U.N. Doc. Supp. No. 40 (A/38/40) at 141 (1983); Raul Sendic Antonaccio v. Uruguay, Communication No. R.14/63 (28 November 1979), U.N. Doc. Supp. No. 40 (A/37/40) at 114 (1982). In ratifying the ICCPR, the U.S. Senate declared that the Articles 1 through 27 (which cover the subject at hand) are not self-executing.

50. 213 U.N.T.S. 221.

51. In order for a state’s practice to be recognized as customary international law, it must fulfill two conditions:

Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinion juris sive necessitas. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.


North Sea Continental Shelf (F.R.G. v. Den.), 1969 I.C.J. 3, 44. See also Military and Paramilitary Activities (Nicar v. U.S.), 1986 I.C.J. 14, 14; R. JENNINGS & A. WATTS, OPPENHEIM’S INTERNATIONAL LAW, (9th ed. 1996); The Paquete Habana, 175 U.S. 677, 700 (1900) (cited with approval in First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 623 (1983)); U.S. v. Yousef, 327 F.3d 56, 92 (2d Cir. 2002).

52. GA Res. 3452 (XXX), U.N. GAOR, Supp. No. 34 at 91 (hereinafter the “Torture Resolution”).

53. See Report by the Special Rapporteur, U.N. Economic and Social Council, E/CN.4/1986/15, at para. 3. The report details state practice and opinio juris with respect to national legislation prohibiting torture. See also HERMAN J. BURGERS & HANS SANELIUS, THE UNITED NATIONS CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (Martinus Nijhoff Publishers/Kluwer Academic Publishers 1988), at 1-12. The widespread ratification of regional human rights instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights and the African Charter on Human and Peoples’ Rights further reinforce the argument that torture is prohibited by customary international law.

54. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 702 (1986). See also Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir. 1996); In re Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 716 (9th Cir. 1992); Cornejo- Barreto v. Seifert, 218 F.3d 1004, 1006 (9th Cir. 2000); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003); Mehinovic v. Vuckovic, 198 Supp. 2d 1322 (N.D. Ga. 2002); Doe v. Islamic Salvation Front, 993 F. Supp. 3, 7 (D.D.C. 1998); Doe v. Unocal, 963 F. Supp. 880, 890 (C.D. Cal. 1997).

55. Vienna Convention on the Law of Treaties, 1969, Art. 53, 1155 U.N.T.S. 331.

56. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., Art. 5, U.N. Doc. A/810 (1948) (“no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”); Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452, 30 U.N. GAOR, Supp. No. 34, U.N. Doc. A/10034 (1976), at Art. 3 (“Exceptional circumstances such as a state of war or a threat of war, internal political stability or any other public emergency may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.”); ICCPR, supra note 118, at Art. 7 (“no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”); Additional Protocol I, supra note 20, at Art. 75; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non- international Armed Conflicts (“Additional Protocol II”), reprinted in 16 I.L.M. 1442 (1977), at Art. 4; European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1950), at Art. 3 (declaring that torture and inhuman or degrading treatment or punishment is prohibited); American Convention, supra note 128, at Art. 5 (providing that every person retain the right to be free from torture and ill-treatment); African Charter on Human and Peoples’ Rights, reprinted in 21 I.L.M. 58 (1981), at Art. 5 (prohibiting torture and ill-treatment).

57. Geneva III, Art. 5.

58. Geneva III, Art. 5.

59. Id., Art. 4.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 1 OF 27 (Inquiry Into the Treatment of Detainees in U.S. Custody)

INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY-- REPORT OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE

110th Congress, 2nd Session, Committee Print

November 20, 2008

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Table of Contents

Note on Source Material Used in the Preparation of the Report (U)
List of Acronyms Used in the Report (U)
Executive Summary and Conclusions (U)

• I. Early Influences on Interrogation Policy (U)
o A. Redefining the Legal Framework For the Treatment of Detainees (U)
o B. Department of Defense Office of General Counsel Seeks Information from the Joint Personnel Recovery Agency (JPRA) (U)
o C. JPRA Collaboration with Other Government Agencies (OGAs) (U)
o D. JPRA Support to the Defense Intelligence Agency (DIA) (U)
o E. JPRA Recommendations for GTMO (U)
o F. Colonel Herrington's Assessment of GTMO (U)
o G. JPRA Prepares Draft Exploitation Plan (U)
• II. Development of New Interrogation Authorities (U)
o A. CIA's Interrogation Program and the Interrogation of Abu Zubaydah (U)
o B. JPRA Assistance to Another Government Agency (U)
o C. Senior SERE Psychologist Detailed From Department of Defense to Other Government Agency (U)
o D. Department of Defense General Counsel Seeks Information on SERE Techniques From JPRA (U)
o E. The Department of Justice Changes the Rules (U)
o F. JPRA 's Special Program In Support of [delete] (U)
 1. August 2002 Training Proposal (U)
 2. JPRA Creates Project 22B (U)
• III. Guantanamo Bay as a "Battle Lab" for New Interrogation Techniques (U)
o A. GTMO Stands Up a Behavioral Science Consultation Team (BSCT) (U)
o B. Behavioral Science Consultation Team (BSCT) Personnel Contact the U.S. Army Special Operations Command (USASOC) (U)
o C. U.S. Southern Command Seeks External Review of GTMO (U)
o D. GTMO Personnel Attend Training at Fort Bragg (U)
o E. Delegation of Senior Government Lawyers Visits Guantanamo (U)
o F. JTF-170 BSCT Produces Interrogation Policy Memo (U)
o G. CIA Lawyer Advises GTMO on Interrogations (U)
o H. DoD Takes Lead on the Interrogation of Mohammed al Khatani (U)
• IV. GTMO Seeks Authority to Use Aggressive Interrogation Techniques (U)
o A. GTMO Requests Counter-Resistance Techniques Influenced by SERE (U)
o B. GTMO Staff Judge Advocate Conducts "Legal Review of Aggressive Interrogation Techniques" (U)
o C. Chain of Command Considers the Requestfor Interrogation Techniques as CITF and FBI Raise Objections (U)
o D. Military Services React to GTMO Requestfor Interrogation Techniques (U)
o E. Department of Defense General Counsel Quashes Joint Staff Legal Review (U)
o F. GTMO and JPRA Plan for Additional Interrogation Training (U)
• V. Command Change at Guantanamo as Dispute over Aggressive Techniques Continues (U)
o A. Major General Geoffrey Miller Takes Command of JTF-GTMO (U)
o B. Khatani Interrogation Plan Fuels Dispute Over Aggressive Techniques (U)
 1. JTF-GTMO Staff Circulate Khatani Interrogation Plan (U)
 2. CITF and FBI Object to Proposed Interrogation Techniques (U)
 3. JTF-GTMO Briefs DoD General Counsel's Office on Interrogation Plan (U)
 4. "Final" Khatani Interrogation Plan (U)
 5. FBI and ClTF Continue to Object to Khatani Interrogation Plan (U)
 6. Khatani Interrogation Begins, CITF Directed To "Stand Clear" (U)
 7. Techniques Used During Khatani Interrogation (U)
• VI. JPRA's Assistance to Another Government Agency (U)
• VII. Secretary Rumsfeld Approves Interrogation Authorities, GTMOPlans to Implement SERE Techniques (U)
o A. Secretary of Defense Authorizes Aggressive Techniques for use at GTMO (U)
o B. JTF-GTMO Develops Standard Operating Procedure (SOP) for the Use of SERE Techniques in Interrogations (U)
o C. SERE School Trainers Provide Instruction for GTMO Interrogators (U)
o D. Navy General Counsel Raises Concerns About Interrogation Techniques, Secretary Rumsfeld Rescinds Authority (U)
o E. National Security Council (NSC) Principals Discuss DoD Interrogations (U)
• VIII. New Interrogation Policy Developed for GTMO (U)
o A. The Working Group Solicits Information on Interrogation Techniques
 1. The Defense Intelligence Agency Provides Information on Specific Interrogation Techniques (U)
 2. The Working Group Solicits Information About Interrogation Techniques From CENTCOM and SOUTHCOM (U)
 3. The Working Group Requests Information from JPRA (U)
o B. Department of Justice Office of Legal Counsel's Analysis Is Presented As Controlling Authority (U)
o C. Working Group Drafts Report Recommending Interrogation Techniques (U)
o D. SOUTHCOM Presses for Additional Techniques (U)
o E. JPRA Briefs Members of the Working Group on SERE Techniques, Including Physical Pressures (U)
o F. The Working Group Finalizes Its Report and the Secretary of Defense Issues a New Interrogation Policy For GTMO (U)
• IX. Aggressive Interrogations at GTMO (U)
o A. Allegations of Detainee Mistreatment (U)
o B. Special Interrogation Plans Modeled on Khatani Interrogation (U)
 1. JTF-GTMO Plans for Interrogation of Slahi (U)
 2. JTF-GTMO Formally Submits Special Interrogation Planfor Slahi (ISN 760) (U)
 3. Interrogation Begins Before the Special Interrogation Plan Is Approved (U)
 4. Special Interrogation Plan Approved and Implemented Despite Apparent Cooperation (U)
 5. FBI Concerns with Special Interrogation (U)
 6. Special Project at GTMO Uses Aggressive Interrogation Techniques (U)
 7. CITF Reissues Order for Agents to "Stand Clear" of Aggressive Interrogations (U)
 8. GTMO Seeks Approval for Two Additional Special Interrogation Plans (U)
 a. Special Interrogation Plan #3 (U)
 b. Special Interrogation Plan #4 (U)
 c. SOUTHCOM and OSD SO/LIC Recommend Approval of Special Interrogation Plans #3 & #4 (U)
• X. DOJ Office of Legal Counsel Withdraws March 14, 2003 Legal Opinion Governing DoD Interrogations (U)
• XI. Development of Interrogation Policy in Afghanistan (U)
o A. Assessment Team Visit to Guantanamo Bay (U)
o B. The Deaths of Dilawar and Habibullah (U)
o C. Questions Raised About Task Force Participation in OGA Interrogations (U)
o D. January 2003 Task Force Interrogation SOP (Afghanistan) (U)
o E. CJTF-180 Produces Memorandum on Interrogation Techniques (U)
o F. CENTCOM Raises Concerns About Interrogation Techniques (U)
• XII. Development of Interrogation Policy in Iraq (U)
o A. Special Mission Unit Task Force Interrogation Policies (U)
 1. SMU Task Force Uses Afghanistan Interrogation Policy (U)
 2. OGA Comments on SMU TF Interrogation Techniques (U)
 3. July 2003 Interrogation SOP Drafted for Iraq SMU TF (U)
 4. Iraq Survey Group Concerns with SMU TF Detainee Treatment (U)
o B. Interrogation Policies for Conventional Forces in Iraq (U)
 1. CJTF-7 Stands Up (Summer 2003) (U)
 2. Interrogation Operations Begin at Abu Ghraib (U)
 3. 519th MI Battalion at Abu Ghraib Seeks Additional Guidance (U)
 4. 519th MI BN Proposes Interrogation Policy (U)
 5. CJTF-7 Solicits "Wish List" of Interrogation Techniques (U)
 6. Interrogation OIC at Abu Ghraib Resubmits the Proposed Interrogation Policy for 519th MI BN (U)
o C. JPRA Provides "Offensive" SERE Training in Iraq (U)
 1. Special Mission Unit Task Force in Iraq Seeks Assistance from JPRA (U)
 2. Awareness of the JPRA Trip to Iraq at Headquarters, Joint Forces Command (JFCOM) (U)
 3. JPRA Provides Interrogation Support to the Special Mission Unit Task Force in Iraq (U)
 4. JPRA Team Authorized to Participate in Interrogations (U)
 5. JPRA Present as Interrogator Uses Stress Positions and Slaps (U)
 6. JPRA Team Authorized to Use SERE Techniques (U)
 7. JPRA Team Chief Seeks Legal Guidance (U)
 8. JPRA Training Manager and Contractor Participate in an Interrogation (U)
 9. JPRA Team Chief Objects to SMU TF Interrogation (U)
 10. JPRA Develops a Concept of Operations (CONOP) (U)
 11. JPRA Team Leaves Iraq (U)
 12. U.S. Joint Forces Command (JFCOM) Reviews JPRA Concept Of Operations (CONOP) (U)
 13. JFCOM Verifies Team Chief's Account of Events in Iraq (U)
o D. Major General Geoffrey Miller Leads GTMO Assessment Team to Iraq (U)
 1. CJTF-7 Commander Identifies Deficiencies (U)
 2. GTMO Assessment Team Travels to Iraq (U)
 3. GTMO Team Visits Iraq Survey Group (ISG) (U)
 4. GTMO Team Visits Special Mission Unit Task Force (U)
 5. GTMO Team Discusses Interrogations with CJTF-7 (U)
 6. GTMO Commander Recommends CJTF-7 Develop an Interrogation Policy (U)
 7. JTF-GTMO Assessment Team Produces Trip Report (U)
 8. MG Miller Briefs Senior DoD Officials on Assessment Visit (U)
o E. Interrogation and Counter-Resistance Policy Established (U)
 1. CJTF-7 Commander Issues Policy Including Aggressive Interrogation Techniques (U)
 2. Interrogation and Counter Resistance Policy Implemented at Abu Ghraib (U)
 3. CENTCOM Raises Concerns About CJTF-7 Policy (U)
 4. CJTF-7 Issues New Interrogation Policy (U)
o F. SMU Task Force Issues a New Interrogation SOP (U)
o Footnotes
• XIII. Interrogation Techniques and Detainee Mistreatment at Abu Ghraib (U)
o A. Use of Military Working Dogs (U)
o B. Stress Positions and Physical Training (U)
o C. Removal of Clothing (U)
o D. Sleep Adjustment/Sleep Management (U)
o E. Sensory Deprivation and Isolation (U)
o F. "Lost Opportunity" to Fix Problems at Abu Ghraib (U)
 1. Retired Army Intelligence Officer Leads Assessment Team (U)
 2. Assessment Team Visits Abu Ghraib and CJTF-7 Headquarters (U)
 3. Team Hears Reports of Detainee Mistreatment (U)
 4. COL Herrington Reports Findings (U)
• XIV. Interrogation Policies Following Abu Ghraib (U)
o A. February 2004 CJSOTF Interrogation SOP (U)
o B. Interrogation Plan in Iraq Derived from SERE (U)
o C. March 2004 Interrogation SOPfor Conventional Forces in Afghanistan (U)
o D. Special Mission Unit Task Force Interrogation Polices (U)
• XV. CENTCOM Seeks JPRA Interrogation Assistance in Afghanistan (U)
o A. May 2004 CENTCOM Request (U)
o B. CENTCOM Makes Another Request for JPRA Interrogation Assistance in Afghanistan (U)
o C. U.S. Joint Forces Command Issues Policy Guidance For JPRA "Offensive" Support (U)
• The Origins of aggressive interrogation techniques: Part I of the Committee's inquiry into the treatment of detainees in U.S. custody -- Index of Documents
o (Tab 1 - EXTRACTS) July 25, 2002 Memorandum from JPRA Chief of Staff for Office of the Secretary of Defense General Counsel, Subject: Exploitation.
o (Tab 2 - EXTRACTS) July 26, 2002 Memorandum from JPRA Chief of Staff for Office of the Secretary of Defense General Counsel, Subject: Exploitation and Physical Pressures.
o (Tab 3 - EXTRACTS) July 25, 2002 document entitled "Physical Pressures used in Resistance Training and Against American Prisoners and Detainees." Attached to JPRA Memorandum of July 26, 2002.
o (Tab 4 - July 24, 2002 Memorandum from Chief of Psychology Services at the 336th Training Support Squadron, Surgeon General Flight to JPRA Chief of Staff. Attached to JPRA Memorandum of July 26, 2002.
o (Tab 5) August 1, 2002 Department of Justice, Office of Legal Counsel, Memorandum for Alberto Gonzales, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A.
o (Tab 6 - EXTRACTS) September 27, 2002 USSOUTHCOM (Office of the Staff Judge Advocate) document entitled "Trip Report, DoD General Counsel Visit to GTMO."
o (Tab 7) October 24, 2002 email between DoD CITF Personnel, Subject: FW: Counter Resistance Strategy Meeting Minutes [Minutes of an October 2, 2002 meeting at Guantanamo Bay, Cuba].
o (Tab 8) October, 11 2002 Memorandum from MG Michael Dunlavey to Commander USSOUTHCOM, Subject: Counter-Resistance Strategies. Two Attachments: JTF-170 J2 Memo, Subject: Request for Approval of Counter-Resistance Strategies and JTF-170 SJA Memo, Subject: Legal Brief on Proposed Counter-Resistance Strategies.
o (Tab 9) October 25, 2002 Transmittal Memorandum from USSOUTHCOM (General Hill) to Chairman, Joint Chiefs of Staff, Subject: Counter-Resistance Techniques.
o (Tab 10) November 4, 2002 Memorandum from Headquarters U.S. Air Force to Joint Staff: Review of SOUTHCOM/GTMO Request for Techniques.
o (Tab 11) November 4, 2002 Memorandum from Criminal Investigative Task Force (CITF) to Joint Staff: Review of SOUTHCOM/GTMO Request for Techniques.
o (Tab 12) November 7, 2002 Memorandum from Headquarters, Department of the Army to Joint Staff: Review of SOUTHCOM/GTMO Request for Techniques.
o (Tab 13) November 4, 2002 Memorandum from Chief of Naval Operations to Joint Staff: Review of SOUTHCOM I GTMO Request for Techniques.
o (Tab 14) November 4, 2002 Memorandum from Headquarters United States Marine Corps to Joint Staff: Review of SOUTHCOM/GTMO Request for Techniques.
o (Tab 15) November 27, 2002 Memorandum from William J. Haynes (DoD GC) to Secretary of Defense Donald Rumsfeld, Subject: Counter-Resistance Techniques.
o (Tab 16) (First Page and EXTRACTS) December 18, 2002 "JTF GTMO 'SERE' Interrogation Standard Operating Procedure."
o (Tab 17) December 17, 2002 Memorandum from CJTF Memorandum to the JTF-GTMO J-2, Subject: "JTF GTMO 'SERE' Interrogation SOP."
o (Tab 18) July 7, 2004 Memorandum from Alberto Mora for Inspector General, Department of the Navy, Subject: Statement for the Record of Alberto Mora for the Department of the Navy Inspector General.
o (Tab 19) January 15, 2003 Memorandum from Navy SERE School Training Specialist and SERE Coordinator to Officer in Charge, Subject: After Action Report, Joint Task Force Guantanamo Bay (JTF GTMO) Training Evolution.
o (Tab 20) January 15, 2003 Memorandum from Secretary of Defense Donald Rumsfeld to the USSOUTHCOM Commander; January 15, 2003 Memorandum from Secretary of Defense Donald Rumsfeld to USSOUTHCOM Commander to DoD General Cousel William J. Haynes.
o (Tab 21) March 14, 2003 Department of Justice, Office of Legal Counsel, Memorandum from John Yoo to William J. Haynes, Re: Military Interrogations of Alien Unlawful Combatants Held Outside of the United States.
o (Tab 22) April 4, 2003 Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations.
o (Tab 23) April 16, 2003 Memorandum from Secretary of Defense Donald Rumsfeld to USSOUTHCOM Commander, Subject: Counter-Resistance Techniques in the War on Terrorism.
o (Tab 24) September 29, 2004 Memorandum from MG Soligan, Chief of Staff, JFCOM for Commander, JPRA, Subject: JPRA Mission Guidance.
o (Tab 25) February 10, 2005, Memorandum from LTG Wagner, Deputy Commander, JFCOM for the Department of Defense Inspector General.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Sun Oct 13, 2013 4:18 am

PART 2 OF 27 (Inquiry Into the Treatment of Detainees in U.S. Custody)

COMMITTEE ON ARMED SERVICES

CARL LEVIN, Michigan, Chairman

EDWARD M. KENNEDY, Massachusetts
JOHN McCAIN, Arizona
ROBERT C. BYRD, West Virginia
JOHN WARNER, Virginia
JOSEPH 1. LIEBERMAN, Connecticut
JAMES M. INHOFE, Oklahoma
JACK REED, Rhode Island
JEFF SESSIONS, Alabama
DANIEL K. AKAKA, Hawaii
SUSAN M. COLLINS, Maine
BILL NELSON, Florida
SAXBY CHAMBLISS, Georgia
E. BENJAMIN NELSON, Nebraska
LINDSEY O. GRAHAM, South Carolina
EVAN BAYH, Indiana
ELIZABETH DOLE, North Carolina
HILLARY RODHAM CLINTON, New York
JOHN CORNYN, Texas
MARK L. PRYOR, Arkansas
JOHN THUNE, South Dakota
JIM WEBB, Virginia
MEL MARTINEZ, Florida
CLAIRE McCASKILL, Missouri
ROGER F. WICKER, Mississippi

RICHARD D. DEBOBES, Staff Director
MICHAEL V. KOSTIW, Republican Staff Director

INVESTIGATION STAFF

JOSEPH M. BRYAN, Majority Professional Staff Member
ILONA R. COHEN, Majority Counsel
MARK R. JACOBSON, Majority Professional Staff Member

WILLIAM M. CANIANO, Minority Professional Staff Member
DAVID M. MORRISS, Minority Counsel
BRYAN D. PARKER, Minority Investigative Counsel

BRIAN F. SEBOLD, Staff Assistant

Note on Source Material Used in the Preparation of the Report

(U) Over the course of the its inquiry into the treatment of detainees in U.S. custody, the Committee reviewed more than 200,000 pages of classified and unclassified documents, including detention and interrogation policies, memoranda, electronic communications, training manuals, and the results of previous investigations into detainee abuse. The majority of those documents were provided to the Committee by the Department of Defense. The Committee also reviewed documents provided by the Department of Justice, documents in the public domain, a small number of documents provided by individuals, and a number of published secondary sources including books and articles in popular magazines and scholarly journals.

(U) The Committee interviewed over 70 individuals in connection with its inquiry. Most interviews were of current or former Department of Defense employees, though the Committee also interviewed current and/or former employees of the Department of Justice and the Federal Bureau of Investigation. The Committee issued two subpoenas and held two hearings to take testimony from subpoenaed witnesses. The Committee also sent written questions to more than 200 individuals. The Committee held public hearings on June 17, 2008 and September 25, 2008. (U) Military personnel referred to in the report are identified by their rank at the time the events in question took place.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 3 OF 27 (Inquiry Into the Treatment of Detainees in U.S. Custody)

List of Acronyms

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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 4 OF 27 (Inquiry Into the Treatment of Detainees in U.S. Custody)

Executive Summary

“What sets us apart from our enemies in this fight … is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect. While we are warriors, we are also all human beings”
-- General David Petraeus, May 10, 2007


(U) The collection of timely and accurate intelligence is critical to the safety of U.S. personnel deployed abroad and to the security of the American people here at home. The methods by which we elicit intelligence information from detainees in our custody affect not only the reliability of that information, but our broader efforts to win hearts and minds and attract allies to our side.

(U) Al Qaeda and Taliban terrorists are taught to expect Americans to abuse them. They are recruited based on false propaganda that says the United States is out to destroy Islam. Treating detainees harshly only reinforces that distorted view, increases resistance to cooperation, and creates new enemies. In fact, the April 2006 National Intelligence Estimate “Trends in Global Terrorism: Implications for the United States” cited “pervasive anti U.S. sentiment among most Muslims” as an underlying factor fueling the spread of the global jihadist movement. Former Navy General Counsel Alberto Mora testified to the Senate Armed Services Committee in June 2008 that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo.”

(U) The abuse of detainees in U.S. custody cannot simply be attributed to the actions of “a few bad apples” acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority. This report is a product of the Committee’s inquiry into how those unfortunate results came about.

Presidential Order Opens the Door to Considering Aggressive Techniques (U)

(U) On February 7, 2002, President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections afforded by the Third Geneva Convention. The President’s order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees. While the President’s order stated that, as “a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions,” the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in U.S. custody.

(U) In December 2001, more than a month before the President signed his memorandum, the Department of Defense (DoD) General Counsel’s Office had already solicited information on detainee “exploitation” from the Joint Personnel Recovery Agency (JPRA), an agency whose expertise was in training American personnel to withstand interrogation techniques considered illegal under the Geneva Conventions.

(U) JPRA is the DoD agency that oversees military Survival Evasion Resistance and Escape (SERE) training. During the resistance phase of SERE training, U.S. military personnel are exposed to physical and psychological pressures (SERE techniques) designed to simulate conditions to which they might be subject if taken prisoner by enemies that did not abide by the Geneva Conventions. As one JPRA instructor explained, SERE training is “based on illegal exploitation (under the rules listed in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War) of prisoners over the last 50 years.” The techniques used in SERE school, based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy’s SERE school, it included waterboarding.

(U) Typically, those who play the part of interrogators in SERE school neither are trained interrogators nor are they qualified to be. These role players are not trained to obtain reliable intelligence information from detainees. Their job is to train our personnel to resist providing reliable information to our enemies. As the Deputy Commander for the Joint Forces Command (JFCOM), JPRA’s higher headquarters, put it: “the expertise of JPRA lies in training personnel how to respond and resist interrogations – not in how to conduct interrogations.” Given JPRA’s role and expertise, the request from the DoD General Counsel’s office was unusual. In fact, the Committee is not aware of any similar request prior to December 2001. But while it may have been the first, that was not the last time that a senior government official contacted JPRA for advice on using SERE methods offensively. In fact, the call from the DoD General Counsel’s office marked just the beginning of JPRA’s support of U.S. government interrogation efforts.

Senior Officials Seek SERE Techniques and Discuss Detainee Interrogations (U)

(U) Beginning in the spring of 2002 and extending for the next two years, JPRA supported U.S. government efforts to interrogate detainees. During that same period, senior government officials solicited JPRA’s knowledge and its direct support for interrogations. While much of the information relating to JPRA’s offensive activities and the influence of SERE techniques on interrogation policies remains classified, unclassified information provides a window into the extent of those activities.

(U) JPRA’s Chief of Staff, Lieutenant Colonel Daniel Baumgartner testified that in late 2001 or early 2002, JPRA conducted briefings of Defense Intelligence Agency (DIA) personnel on detainee resistance, techniques, and information on detainee exploitation.

(U) On April 16, 2002, Dr. Bruce Jessen, the senior SERE psychologist at JPRA, circulated a draft exploitation plan to JPRA Commander Colonel Randy Moulton and other senior officials at the agency. The contents of that plan remain classified but Dr. Jessen’s initiative is indicative of the interest of JPRA’s senior leadership in expanding the agency’s role.

U) One opportunity came in July 2002. That month, DoD Deputy General Counsel for intelligence Richard Shiffrin contacted JPRA seeking information on SERE physical pressures and interrogation techniques that had been used against Americans. Mr. Shiffrin called JPRA after discussions with William “Jim” Haynes II, the DoD General Counsel.

(U) In late July, JPRA provided the General Counsel’s office with several documents, including excerpts from SERE instructor lesson plans, a list of physical and psychological pressures used in SERE resistance training, and a memo from a SERE psychologist assessing the long-term psychological effects of SERE resistance training on students and the effects of waterboarding. The list of SERE techniques included such methods as sensory deprivation, sleep disruption, stress positions, waterboarding, and slapping. It also made reference to a section of the JPRA instructor manual that discusses “coercive pressures,” such as keeping the lights on at all times, and treating a person like an animal. JPRA’s Chief of Staff, Lieutenant Colonel Daniel Baumgartner, who spoke with Mr. Shiffrin at the time, thought the General Counsel’s office was asking for the information on exploitation and physical pressures to use them in interrogations and he said that JFCOM gave approval to provide the agency the information. Mr. Shiffrin, the DoD Deputy General Counsel for Intelligence, confirmed that a purpose of the request was to “reverse engineer” the techniques. Mr. Haynes could not recall what he did with the information provided by JPRA.

(U) Memos from Lieutenant Colonel Baumgartner to the Office of Secretary of Defense General Counsel stated that JPRA would “continue to offer exploitation assistance to those government organizations charged with the mission of gleaning intelligence from enemy detainees.” Lieutenant Colonel Baumgartner testified that he provided another government agency the same information he sent to the DoD General Counsel’s office.

(U) Mr. Haynes was not the only senior official considering new interrogation techniques for use against detainees. Members of the President’s Cabinet and other senior officials attended meetings in the White House where specific interrogation techniques were discussed. Secretary of State Condoleezza Rice, who was then the National Security Advisor, said that, “in the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists.” Secretary Rice said that she asked Director of Central Intelligence George Tenet to brief NSC Principals on the program and asked the Attorney General John Ashcroft “personally to review and confirm the legal advice prepared by the Office of Legal Counsel.” She also said that Secretary of Defense Donald Rumsfeld participated in the NSC review of CIA’s program.

(U) Asked whether she attended meetings where SERE training was discussed, Secretary Rice stated that she recalled being told that U.S. military personnel were subjected in training to “certain physical and psychological interrogation techniques.” National Security Council (NSC) Legal Advisor, John Bellinger, said that he was present in meetings “at which SERE training was discussed.”

Department of Justice Redefines Torture (U)

(U) On August 1, 2002, just a week after JPRA provided the DoD General Counsel’s office the list of SERE techniques and the memo on the psychological effects of SERE training, the Department of Justice’s Office of Legal Counsel (OLC) issued two legal opinions. The opinions were issued after consultation with senior Administration attorneys, including then-White House Counsel Alberto Gonzales and then-Counsel to the Vice President David Addington. Both memos were signed by then-Assistant Attorney General for the Office of Legal Counsel Jay Bybee. One opinion, commonly known as the first Bybee memo, was addressed to Judge Gonzales and provided OLC’s opinion on standards of conduct in interrogation required under the federal torture statute. That memo concluded:

[F]or an act to constitute torture as defined in [the federal torture statute], it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under [the federal torture statute], it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.


(U) In his book The Terror Presidency, Jack Goldsmith, the former Assistant Attorney General of the OLC who succeeded Mr. Bybee in that job, described the memo’s conclusions:

Violent acts aren’t necessarily torture; if you do torture, you probably have a defense; and even if you don’t have a defense, the torture law doesn’t apply if you act under the color of presidential authority.


(U) The other OLC opinion issued on August 1, 2002 is known commonly as the Second Bybee memo. That opinion, which responded to a request from the CIA, addressed the legality of specific interrogation tactics. While the full list of techniques remains classified, a publicly released CIA document indicates that waterboarding was among those analyzed and approved. CIA Director General Michael Hayden stated in public testimony before the Senate Intelligence Committee on February 5, 2008 that waterboarding was used by the CIA. And Steven Bradbury, the current Assistant Attorney General of the OLC, testified before the House Judiciary Committee on February 14, 2008 that the CIA’s use of waterboarding was “adapted from the SERE training program.”

(U) Before drafting the opinions, Mr. Yoo, the Deputy Assistant Attorney General for the OLC, had met with Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, to discuss the subjects he intended to address in the opinions. In testimony before the House Judiciary Committee, Mr. Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the memos were being drafted. When asked whether he had discussed SERE techniques with Judge Gonzales, Mr. Addington, Mr. Yoo, Mr. Rizzo or other senior administration lawyers, DoD General Counsel Jim Haynes testified that he “did discuss SERE techniques with other people in the administration.” NSC Legal Advisor John Bellinger said that “some of the legal analyses of proposed interrogation techniques that were prepared by the Department of Justice… did refer to the psychological effects of resistance training.”

(U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released. Judge Bybee also recalled discussing detainee interrogations in a meeting with Attorney General John Ashcroft and John Yoo in late July 2002, prior to signing the OLC opinions. Mr. Bellinger, the NSC Legal Advisor, said that “the NSC’s Principals reviewed CIA’s proposed program on several occasions in 2002 and 2003” and that he “expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations.”

JPRA and CIA Influence Department of Defense Interrogation Policies (U)

(U) As senior government lawyers were preparing to redefine torture, JPRA – responding to a request from U.S. Southern Command’s Joint Task Force 170 (JTF-170) at Guantanamo Bay (GTMO) – was finalizing plans to train JTF-170 personnel. During the week of September 16, 2002, a group of interrogators and behavioral scientists from GTMO travelled to Fort Bragg, North Carolina and attended training conducted by instructors from JPRA’s SERE school. On September 25, 2002, just days after GTMO staff returned from that training, a delegation of senior Administration lawyers, including Mr. Haynes, Mr. Rizzo, and Mr. Addington, visited GTMO.

(U) A week after the visit from those senior lawyers, two GTMO behavioral scientists who had attended the JPRA-led training at Fort Bragg drafted a memo proposing new interrogation techniques for use at GTMO. According to one of those two behavioral scientists, by early October 2002, there was “increasing pressure to get ‘tougher’ with detainee interrogations.” He added that if the interrogation policy memo did not contain coercive techniques, then it “wasn’t going to go very far.”

(U) JPRA was not the only outside organization that provided advice to GTMO on aggressive techniques. On October 2, 2002, Jonathan Fredman, who was chief counsel to the CIA’s Counter Terrorist Center, attended a meeting of GTMO staff. Minutes of that meeting indicate that it was dominated by a discussion of aggressive interrogation techniques including sleep deprivation, death threats, and waterboarding, which was discussed in relation to its use in SERE training. Mr. Fredman’s advice to GTMO on applicable legal obligations was similar to the analysis of those obligations in OLC’s first Bybee memo. According to the meeting minutes, Mr. Fredman said that “the language of the statutes is written vaguely… Severe physical pain described as anything causing permanent damage to major organs or body parts. Mental torture [is] described as anything leading to permanent, profound damage to the senses or personality.” Mr. Fredman said simply “It is basically subject to perception. If the detainee dies you’re doing it wrong.”

(U) On October 11, 2002, Major General Michael Dunlavey, the Commander of JTF-170 at Guantanamo Bay, sent a memo to General James Hill, the Commander of U.S. Southern Command (SOUTHCOM) requesting authority to use aggressive interrogation techniques. Several of the techniques requested were similar to techniques used by JPRA and the military services in SERE training, including stress positions, exploitation of detainee fears (such as fear of dogs), removal of clothing, hooding, deprivation of light and sound, and the so-called wet towel treatment or the waterboard. Some of the techniques were even referred to as “those used in U.S. military interrogation resistance training.” Lieutenant Colonel Diane Beaver, GTMO’s Staff Judge Advocate wrote an analysis justifying the legality of the techniques, though she expected that a broader legal review conducted at more senior levels would follow her own. On October 25, 2002, General Hill forwarded the GTMO request from Major General Dunlavey to General Richard Myers, the Chairman of the Joint Chiefs of Staff. Days later, the Joint Staff solicited the views of the military services on the request.

(U) Plans to use aggressive interrogation techniques generated concerns by some at GTMO. The Deputy Commander of the Department of Defense’s Criminal Investigative Task Force (CITF) at GTMO told the Committee that SERE techniques were “developed to better prepare U.S. military personnel to resist interrogations and not as a means of obtaining reliable information” and that “CITF was troubled with the rationale that techniques used to harden resistance to interrogations would be the basis for the utilization of techniques to obtain information.” Concerns were not limited to the effectiveness of the techniques in obtaining reliable information; GTMO’s request gave rise to significant legal concerns as well.

Military Lawyers Raise Red Flags and Joint Staff Review Quashed (U)

(U) In early November 2002, in a series of memos responding to the Joint Staff’s call for comments on GTMO’s request, the military services identified serious legal concerns about the techniques and called for additional analysis.

(U) The Air Force cited “serious concerns regarding the legality of many of the proposed techniques” and stated that “techniques described may be subject to challenge as failing to meet the requirements outlined in the military order to treat detainees humanely…” The Air Force also called for an in depth legal review of the request.

(U) CITF’s Chief Legal Advisor wrote that certain techniques in GTMO’s October 11, 2002 request “may subject service members to punitive articles of the [Uniform Code of Military Justice],” called “the utility and legality of applying certain techniques” in the request “questionable,” and stated that he could not “advocate any action, interrogation or otherwise, that is predicated upon the principle that all is well if the ends justify the means and others are not aware of how we conduct our business.”

(U) The Chief of the Army’s International and Operational Law Division wrote that techniques like stress positions, deprivation of light and auditory stimuli, and use of phobias to induce stress “crosses the line of ‘humane’ treatment,” would “likely be considered maltreatment” under the UCMJ, and “may violate the torture statute.” The Army labeled GTMO’s request “legally insufficient” and called for additional review.

(U) The Navy recommended a “more detailed interagency legal and policy review” of the request. And the Marine Corps expressed strong reservations, stating that several techniques in the request “arguably violate federal law, and would expose our service members to possible prosecution.” The Marine Corps also said the request was not “legally sufficient,” and like the other services, called for “a more thorough legal and policy review.”

(U) Then-Captain (now Rear Admiral) Jane Dalton, Legal Counsel to the Chairman of the Joint Chiefs of Staff, said that her staff discussed the military services’ concerns with the DoD General Counsel’s Office at the time and that the DoD General Counsel Jim Haynes was aware of the services’ concerns. Mr. Haynes, on the other hand, testified that he did not know that the memos from the military services existed (a statement he later qualified by stating that he was not sure he knew they existed). Eliana Davidson, the DoD Associate Deputy General Counsel for International Affairs, said that she told the General Counsel that the GTMO request needed further assessment. Mr. Haynes did not recall Ms. Davidson telling him that.

(U) Captain Dalton, who was the Chairman’s Legal Counsel, said that she had her own concerns with the GTMO request and directed her staff to initiate a thorough legal and policy review of the techniques. That review, however, was cut short. Captain Dalton said that General Myers returned from a meeting and advised her that Mr. Haynes wanted her to stop her review, in part because of concerns that people were going to see the GTMO request and the military services’ analysis of it. Neither General Myers nor Mr. Haynes recalled cutting short the Dalton review, though neither has challenged Captain Dalton’s recollection. Captain Dalton testified that this occasion marked the only time she had ever been told to stop analyzing a request that came to her for review.

Secretary of Defense Rumsfeld Approves Aggressive Techniques (U)

(U) With respect to GTMO’s October 11, 2002 request to use aggressive interrogation techniques, Mr. Haynes said that “there was a sense by the DoD Leadership that this decision was taking too long” and that Secretary Rumsfeld told his senior advisors “I need a recommendation.” On November 27, 2002, the Secretary got one. Notwithstanding the serious legal concerns raised by the military services, Mr. Haynes sent a one page memo to the Secretary, recommending that he approve all but three of the eighteen techniques in the GTMO request. Techniques such as stress positions, removal of clothing, use of phobias (such as fear of dogs), and deprivation of light and auditory stimuli were all recommended for approval.

(U) Mr. Haynes’s memo indicated that he had discussed the issue with Deputy Secretary of Defense Paul Wolfowitz, Under Secretary of Defense for Policy Doug Feith, and General Myers and that he believed they concurred in his recommendation. When asked what he relied on to make his recommendation that the aggressive techniques be approved, the only written legal opinion Mr. Haynes cited was Lieutenant Colonel Beaver’s legal analysis, which senior military lawyers had considered “legally insufficient” and “woefully inadequate,” and which LTC Beaver herself had expected would be supplemented with a review by persons with greater experience than her own.

(U) On December 2, 2002, Secretary Rumsfeld signed Mr. Haynes’s recommendation, adding a handwritten note that referred to limits proposed in the memo on the use of stress positions: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?”

(U) SERE school techniques are designed to simulate abusive tactics used by our enemies. There are fundamental differences between a SERE school exercise and a real world interrogation. At SERE school, students are subject to an extensive medical and psychological pre-screening prior to being subjected to physical and psychological pressures. The schools impose strict limits on the frequency, duration, and/or intensity of certain techniques. Psychologists are present throughout SERE training to intervene should the need arise and to help students cope with associated stress. And SERE school is voluntary; students are even given a special phrase they can use to immediately stop the techniques from being used against them.

(U) Neither those differences, nor the serious legal concerns that had been registered, stopped the Secretary of Defense from approving the use of the aggressive techniques against detainees. Moreover, Secretary Rumsfeld authorized the techniques without apparently providing any written guidance as to how they should be administered.

SERE Techniques at GTMO (U)

(U) Following the Secretary’s December 2, 2002 authorization, senior staff at GTMO began drafting a Standard Operating Procedure (SOP) specifically for the use of SERE techniques in interrogations. The draft SOP itself stated that “The premise behind this is that the interrogation tactics used at U.S. military SERE schools are appropriate for use in real-world interrogations. These tactics and techniques are used at SERE school to ‘break’ SERE detainees. The same tactics and techniques can be used to break real detainees during interrogation.” The draft “GTMO SERE SOP” described how to slap, strip, and place detainees in stress positions. It also described other SERE techniques, such as “hooding,” “manhandling,” and “walling” detainees.

(U) On December 30, 2002, two instructors from the Navy SERE school arrived at GTMO. The next day, in a session with approximately 24 interrogation personnel, the two SERE instructors demonstrated how to administer stress positions, and various slapping techniques. According to two interrogators, those who attended the training even broke off into pairs to practice the techniques.

(U) Exemplifying the disturbing nature and substance of the training, the SERE instructors explained “Biderman’s Principles” – which were based on coercive methods used by the Chinese Communist dictatorship to elicit false confessions from U.S. POWs during the Korean War – and left with GTMO personnel a chart of those coercive techniques. Three days after they conducted the training, the SERE instructors met with GTMO’s Commander, Major General Geoffrey Miller. According to some who attended that meeting, Major General Miller stated that he did not want his interrogators using the techniques that the Navy SERE instructors had demonstrated. That conversation, however, took place after the training had already occurred and not all of the interrogators who attended the training got the message.

(U) At about the same time, a dispute over the use of aggressive techniques was raging at GTMO over the interrogation of Mohammed al-Khatani, a high value detainee. Personnel from CITF and the Federal Bureau of Investigations (FBI) had registered strong opposition, to interrogation techniques proposed for use on Khatani and made those concerns known to the DoD General Counsel’s office. Despite those objections, an interrogation plan that included aggressive techniques was approved. The interrogation itself, which actually began on November 23, 2002, a week before the Secretary’s December 2, 2002 grant of blanket authority for the use of aggressive techniques, continued through December and into mid-January 2003.

(U) NSC Legal Advisor John Bellinger said that, on several occasions, Deputy Assistant Attorney General Bruce Swartz raised concerns with him about allegations of detainee abuse at GTMO. Mr. Bellinger said that, in turn, he raised these concerns “on several occasions with DoD officials and was told that the allegations were being investigated by the Naval Criminal Investigative Service.” Then National Security Advisor Condoleezza Rice said that Mr. Bellinger also advised her “on a regular basis regarding concerns and issues relating to DoD detention policies and practices at Guantanamo.” She said that as a result she convened a “series of meetings of NSC Principals in 2002 and 2003 to discuss various issues and concerns relating to detainees in the custody of the Department of Defense.”

(U) Between mid-December 2002 and mid-January 2003, Navy General Counsel Alberto Mora spoke with the DoD General Counsel three times to express his concerns about interrogation techniques at GTMO, at one point telling Mr. Haynes that he thought techniques that had been authorized by the Secretary of Defense “could rise to the level of torture.” On January 15, 2003, having received no word that the Secretary’s authority would be withdrawn, Mr. Mora went so far as to deliver a draft memo to Mr. Haynes’s office memorializing his legal concerns about the techniques. In a subsequent phone call, Mr. Mora told Mr. Haynes he would sign his memo later that day unless he heard definitively that the use of the techniques was suspended. In a meeting that same day, Mr. Haynes told Mr. Mora that the Secretary would rescind the techniques. Secretary Rumsfeld signed a memo rescinding authority for the techniques on January 15, 2003.

(U) That same day, GTMO suspended its use of aggressive techniques on Khatani. While key documents relating to the interrogation remain classified, published accounts indicate that military working dogs had been used against Khatani. He had also been deprived of adequate sleep for weeks on end, stripped naked, subjected to loud music, and made to wear a leash and perform dog tricks. In a June 3, 2004 press briefing, SOUTHCOM Commander General James Hill traced the source of techniques used on Khatani back to SERE, stating: “The staff at Guantanamo working with behavioral scientists, having gone up to our SERE school and developed a list of techniques which our lawyers decided and looked at, said were OK.” General Hill said “we began to use a few of those techniques … on this individual...”

(U) On May 13, 2008, the Pentagon announced in a written statement that the Convening Authority for military commissions “dismissed without prejudice the sworn charges against Mohamed al Khatani.” The statement does not indicate the role his treatment may have played in that decision.

DoD Working Group Ignores Military Lawyers and Relies on OLC (U)

(U) On January 15, 2003, the same day he rescinded authority for GTMO to use aggressive techniques, Secretary Rumsfeld directed the establishment of a “Working Group” to review interrogation techniques. For the next few months senior military and civilian lawyers tried, without success, to have their concerns about the legality of aggressive techniques reflected in the Working Group’s report. Their arguments were rejected in favor of a legal opinion from the Department of Justice’s Office of Legal Counsel’s (OLC) John Yoo. Mr. Yoo’s opinion, the final version of which was dated March 14, 2003, had been requested by Mr. Haynes at the initiation of the Working Group process, and repeated much of what the first Bybee memo had said six months earlier.

(U) The first Bybee memo, dated August 1, 2002, had concluded that, to violate the federal torture statute, physical pain that resulted from an act would have to be “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Mr. Yoo’s March 14, 2003 memo stated that criminal laws, such as the federal torture statute, would not apply to certain military interrogations, and that interrogators could not be prosecuted by the Justice Department for using interrogation methods that would otherwise violate the law.

(U) Though the final Working Group report does not specifically mention SERE, the list of interrogation techniques it evaluated and recommended for approval suggest the influence of SERE. Removal of clothing, prolonged standing, sleep deprivation, dietary manipulation, hooding, increasing anxiety through the use of a detainee’s aversions like dogs, and face and stomach slaps were all recommended for approval.

(U) On April 16, 2003, less than two weeks after the Working Group completed its report, the Secretary authorized the use of 24 specific interrogation techniques for use at GTMO. While the authorization included such techniques as dietary manipulation, environmental manipulation, and sleep adjustment, it was silent on many of the techniques in the Working Group report. Secretary Rumsfeld’s memo said, however, that “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 an identified detainee.”

(U) Just a few months later, one such request for “additional interrogation techniques” arrived on Secretary Rumsfeld’s desk. The detainee was Mohamedou Ould Slahi. While documents relating to the interrogation plan for Slahi remain classified, a May 2008 report from the Department of Justice Inspector General includes declassified information suggesting the plan included hooding Slahi and subjecting him to sensory deprivation and “sleep adjustment.” The Inspector General’s report says that an FBI agent who saw a draft of the interrogation plan said it was similar to Khatani’s interrogation plan. Secretary Rumsfeld approved the Slahi plan on August 13, 2003.

Aggressive Techniques Authorized in Afghanistan and Iraq (U)

(U) Shortly after Secretary Rumsfeld’s December 2, 2002 approval of his General Counsel’s recommendation to authorize aggressive interrogation techniques, the techniques – and the fact the Secretary had authorized them – became known to interrogators in Afghanistan. A copy of the Secretary’s memo was sent from GTMO to Afghanistan. Captain Carolyn Wood, the Officer in Charge of the Intelligence Section at Bagram Airfield in Afghanistan, said that in January 2003 she saw a power point presentation listing the aggressive techniques that had been authorized by the Secretary.

(U) Despite the Secretary’s January 15, 2003 rescission of authority for GTMO to use aggressive techniques, his initial approval six weeks earlier continued to influence interrogation policies.

(U) On January 24, 2003, nine days after Secretary Rumsfeld rescinded authority for the techniques at GTMO, the Staff Judge Advocate for Combined Joint Task Force 180 (CJTF-180), U.S. Central Command’s (CENTCOM) conventional forces in Afghanistan, produced an “Interrogation techniques” memo. While that memo remains classified, unclassified portions of a report by Major General George Fay stated that the memo “recommended removal of clothing – a technique that had been in the Secretary’s December 2 authorization” and discussed “exploiting the Arab fear of dogs” another technique approved by the Secretary on December 2, 2002.

(U) From Afghanistan, the techniques made their way to Iraq. According to the Department of Defense (DoD) Inspector General (IG), at the beginning of the Iraq war, special mission unit forces in Iraq “used a January 2003 Standard Operating Procedure (SOP) which had been developed for operations in Afghanistan.” According to the DoD IG, the Afghanistan SOP had been:

[I]nfluenced by the counterresistance memorandum that the Secretary of Defense approved on December 2, 2002 and incorporated techniques designed for detainees who were identified as unlawful combatants. Subsequent battlefield interrogation SOPs included techniques such as yelling, loud music, and light control, environmental manipulation, sleep deprivation/adjustment, stress positions, 20-hour interrogations, and controlled fear (muzzled dogs)…


(U) Techniques approved by the Secretary of Defense in December 2002 reflect the influence of SERE. And not only did those techniques make their way into official interrogation policies in Iraq, but instructors from the JPRA SERE school followed. The DoD IG reported that in September 2003, at the request of the Commander of the Special Mission Unit Task Force, JPRA deployed a team to Iraq to assist interrogation operations. During that trip, which was explicitly approved by U.S. Joint Forces Command, JPRA’s higher headquarters, SERE instructors were authorized to participate in the interrogation of detainees in U.S. military custody using SERE techniques.

(U) In September 2008 testimony before the Senate Armed Services Committee, Colonel Steven Kleinman, an Air Force Reservist who was a member of the interrogation support team sent by JPRA to the Special Mission Unit Task Force in Iraq, described abusive interrogations he witnessed, and intervened to stop, during that trip. Colonel Kleinman said that one of those interrogations, which took place in a room painted all in black with a spotlight on the detainee, the interrogator repeatedly slapped a detainee who was kneeling on the floor in front of the interrogator. In another interrogation Colonel Kleinman said the two other members of the JPRA team took a hooded detainee to a bunker at the Task Force facility, forcibly stripped him naked and left him, shackled by the wrist and ankles, to stand for 12 hours.

(U) Interrogation techniques used by the Special Mission Unit Task Force eventually made their way into Standard Operating Procedures (SOPs) issued for all U.S. forces in Iraq. In the summer of 2003, Captain Wood, who by that time was the Interrogation Officer in Charge at Abu Ghraib, obtained a copy of the Special Mission Unit interrogation policy and submitted it, virtually unchanged, to her chain of command as proposed policy.

(U) Captain Wood submitted her proposed policy around the same time that a message was being conveyed that interrogators should be more aggressive with detainees. In mid-August 2003, an email from staff at Combined Joint Task Force 7 (CJTF-7) headquarters in Iraq requested that subordinate units provide input for a “wish list” of interrogation techniques, stated that “the gloves are coming off,” and said “we want these detainees broken.” At the end of August 2003, Major General Geoffrey Miller, the GTMO Commander, led a team to Iraq to assess interrogation and detention operations. Colonel Thomas Pappas, the Commander of the 205th Military Intelligence Brigade, who met with Major General Miller during that visit, said that the tenor of the discussion was that “we had to get tougher with the detainees.” A Chief Warrant Officer with the Iraq Survey Group (ISG) said that during Major General Miller’s tour of the ISG’s facility, Major General Miller said the ISG was “running a country club” for detainees.

(U) On September 14, 2003 the Commander of CJTF-7, Lieutenant General Ricardo Sanchez, issued the first CJTF-7 interrogation SOP. That SOP authorized interrogators in Iraq to use stress positions, environmental manipulation, sleep management, and military working dogs in interrogations. Lieutenant General Sanchez issued the September 14, 2003 policy with the knowledge that there were ongoing discussions about the legality of some of the approved techniques. Responding to legal concerns from CENTCOM lawyers about those techniques, Lieutenant General Sanchez issued a new policy on October 12, 2003, eliminating many of the previously authorized aggressive techniques. The new policy, however, contained ambiguities with respect to certain techniques, such as the use of dogs in interrogations, and led to confusion about which techniques were permitted.

(U) In his report of his investigation into Abu Ghraib, Major General George Fay said that interrogation techniques developed for GTMO became “confused” and were implemented at Abu Ghraib. For example, Major General Fay said that removal of clothing, while not included in CJTF-7’s SOP, was “imported” to Abu Ghraib, could be “traced through Afghanistan and GTMO,” and contributed to an environment at Abu Ghraib that appeared “to condone depravity and degradation rather than humane treatment of detainees.” Major General Fay said that the policy approved by the Secretary of Defense on December 2, 2002 contributed to the use of aggressive interrogation techniques at Abu Ghraib in late 2003.

OLC Withdraws Legal Opinion - JFCOM Issues Guidance on JPRA “Offensive” Support (U)

(U) As the events at Abu Ghraib were unfolding, Jack Goldsmith, the new Assistant Attorney General for the Office of Legal Counsel was presented with a “short stack” of OLC opinions that were described to him as problematic. Included in that short stack were the Bybee memos of August 1, 2002 and Mr. Yoo’s memo of March 2003. After reviewing the memos, Mr. Goldsmith decided to rescind both the so-called first Bybee memo and Mr. Yoo’s memo. In late December 2003, Mr. Goldsmith notified Mr. Haynes that DoD could no longer rely on Mr. Yoo’s memo in determining the lawfulness of interrogation techniques. The change in OLC guidance, however, did not keep JPRA from making plans to continue their support to interrogation operations. In fact, it is not clear that the agency was even aware of the change.

(U) In 2004, JPRA and CENTCOM took steps to send a JPRA training team to Afghanistan to assist in detainee interrogations there. In the wake of the public disclosure of detainee abuse at Abu Ghraib, however, that trip was cancelled and JFCOM subsequently issued policy guidance limiting JPRA’s support to interrogations.

(U) On September 29, 2004 Major General James Soligan, JFCOM’s Chief of Staff, issued a memorandum referencing JPRA’s support to interrogation operations. Major General Soligan wrote:

Recent requests from [the Office of the Secretary of Defense] and the Combatant Commands have solicited JPRA support based on knowledge and information gained through the debriefing of former U.S. POWs and detainees and their application to U.S. Strategic debriefing and interrogation techniques. These requests, which can be characterized as ‘offensive’ support, go beyond the chartered responsibilities of JPRA… The use of resistance to interrogation knowledge for ‘offensive’ purposes lies outside the roles and responsibilities of JPRA.


(U) Lieutenant General Robert Wagner, the Deputy Commander of JFCOM, later called requests for JPRA interrogation support “inconsistent with the unit’s charter” and said that such requests “might create conditions which tasked JPRA to engage in offensive operational activities outside of JPRA’s defensive mission.”

(U) Interrogation policies endorsed by senior military and civilian officials authorizing the use of harsh interrogation techniques were a major cause of the abuse of detainees in U.S. custody. The impact of those abuses has been significant. In a 2007 international BBC poll, only 29 percent of people around the world said the United States is a generally positive influence in the world. Abu Ghraib and Guantanamo have a lot to do with that perception. The fact that America is seen in a negative light by so many complicates our ability to attract allies to our side, strengthens the hand of our enemies, and reduces our ability to collect intelligence that can save lives.

(U) It is particularly troubling that senior officials approved the use of interrogation techniques that were originally designed to simulate abusive tactics used by our enemies against our own soldiers and that were modeled, in part, on tactics used by the Communist Chinese to elicit false confessions from U.S. military personnel. While some argue that the brutality and disregard for human life shown by al Qaeda and Taliban terrorists justifies us treating them harshly, General David Petraeus explained why that view is misguided. In a May 2007 letter to his troops, General Petraeus said “Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right. Adherence to our values distinguishes us from our enemy. This fight depends on securing the population, which must understand that we -- not our enemies -- occupy the moral high ground.”

Senate Armed Services Committee Conclusions

Conclusion 1: On February 7, 2002, President George W. Bush made a written determination that Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, did not apply to al Qaeda or Taliban detainees. Following the President’s determination, techniques such as waterboarding, nudity, and stress positions, used in SERE training to simulate tactics used by enemies that refuse to follow the Geneva Conventions, were authorized for use in interrogations of detainees in U.S. custody.

Conclusion 2: Members of the President’s Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA’s interrogation program during that period.

Conclusions on SERE Training Techniques and Interrogations

Conclusion 3: The use of techniques similar to those used in SERE resistance training – such as stripping students of their clothing, placing them in stress positions, putting hoods over their heads, and treating them like animals – was at odds with the commitment to humane treatment of detainees in U.S. custody. Using those techniques for interrogating detainees was also inconsistent with the goal of collecting accurate intelligence information, as the purpose of SERE resistance training is to increase the ability of U.S. personnel to resist abusive interrogations and the techniques used were based, in part, on Chinese Communist techniques used during the Korean War to elicit false confessions.

Conclusion 4: The use of techniques in interrogations derived from SERE resistance training created a serious risk of physical and psychological harm to detainees. The SERE schools employ strict controls to reduce the risk of physical and psychological harm to students during training. Those controls include medical and psychological screening for students, interventions by trained psychologists during training, and code words to ensure that students can stop the application of a technique at any time should the need arise. Those same controls are not present in real world interrogations.

Conclusions on Senior Official Consideration of SERE Techniques for Interrogations

Conclusion 5: In July 2002, the Office of the Secretary of Defense General Counsel solicited information from the Joint Personnel Recovery Agency (JPRA) on SERE techniques for use during interrogations. That solicitation, prompted by requests from Department of Defense General Counsel William J. Haynes II, reflected the view that abusive tactics similar to those used by our enemies should be considered for use against detainees in U.S. custody.

Conclusion 6: The Central Intelligence Agency’s (CIA) interrogation program included at least one SERE training technique, waterboarding. Senior Administration lawyers, including Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, were consulted on the development of legal analysis of CIA interrogation techniques. Legal opinions subsequently issued by the Department of Justice’s Office of Legal Counsel (OLC) interpreted legal obligations under U.S. anti-torture laws and determined the legality of CIA interrogation techniques. Those OLC opinions distorted the meaning and intent of anti-torture laws, rationalized the abuse of detainees in U.S. custody and influenced Department of Defense determinations as to what interrogation techniques were legal for use during interrogations conducted by U.S. military personnel.

Conclusions on JPRA Offensive Activities

Conclusion 7: Joint Personnel Recovery Agency (JPRA) efforts in support of “offensive” interrogation operations went beyond the agency’s knowledge and expertise. JPRA’s support to U.S. government interrogation efforts contributed to detainee abuse. JPRA’s offensive support also influenced the development of policies that authorized abusive interrogation techniques for use against detainees in U.S. custody.

Conclusion 8: Detainee abuse occurred during JPRA’s support to Special Mission Unit (SMU) Task Force (TF) interrogation operations in Iraq in September 2003. JPRA Commander Colonel Randy Moulton’s authorization of SERE instructors, who had no experience in detainee interrogations, to actively participate in Task Force interrogations using SERE resistance training techniques was a serious failure in judgment. The Special Mission Unit Task Force Commander’s failure to order that SERE resistance training techniques not be used in detainee interrogations was a serious failure in leadership that led to the abuse of detainees in Task Force custody. Iraq is a Geneva Convention theater and techniques used in SERE school are inconsistent with the obligations of U.S. personnel under the Geneva Conventions.

Conclusion 9: Combatant Command requests for JPRA “offensive” interrogation support and U.S. Joint Forces Command (JFCOM) authorization of that support led to JPRA operating outside the agency’s charter and beyond its expertise. Only when JFCOM’s Staff Judge Advocate became aware of and raised concerns about JPRA’s support to offensive interrogation operations in late September 2003 did JFCOM leadership begin to take steps to curtail JPRA’s “offensive” activities. It was not until September 2004, however, that JFCOM issued a formal policy stating that support to offensive interrogation operations was outside JPRA’s charter.

Conclusions on GTMO’s Request for Aggressive Techniques

Conclusion 10: Interrogation techniques in Guantanamo Bay’s (GTMO) October 11, 2002 request for authority submitted by Major General Michael Dunlavey, were influenced by JPRA training for GTMO interrogation personnel and included techniques similar to those used in SERE training to teach U.S. personnel to resist abusive enemy interrogations. GTMO Staff Judge Advocate Lieutenant Colonel Diane Beaver’s legal review justifying the October 11, 2002 GTMO request was profoundly in error and legally insufficient. Leaders at GTMO, including Major General Dunlavey’s successor, Major General Geoffrey Miller, ignored warnings from DoD’s Criminal Investigative Task Force and the Federal Bureau of Investigation that the techniques were potentially unlawful and that their use would strengthen detainee resistance.

Conclusion 11: Chairman of the Joint Chiefs of Staff General Richard Myers’s decision to cut short the legal and policy review of the October 11, 2002 GTMO request initiated by his Legal Counsel, then-Captain Jane Dalton, undermined the military’s review process. Subsequent conclusions reached by Chairman Myers and Captain Dalton regarding the legality of interrogation techniques in the request followed a grossly deficient review and were at odds with conclusions previously reached by the Army, Air Force, Marine Corps, and Criminal Investigative Task Force.

Conclusion 12: Department of Defense General Counsel William J. Haynes II’s effort to cut short the legal and policy review of the October 11, 2002 GTMO request initiated by then-Captain Jane Dalton, Legal Counsel to the Chairman of the Joint Chiefs of Staff, was inappropriate and undermined the military’s review process. The General Counsel’s subsequent review was grossly deficient. Mr. Haynes’s one page recommendation to Secretary of Defense Donald Rumsfeld failed to address the serious legal concerns that had been previously raised by the military services about techniques in the GTMO request. Further, Mr. Haynes’s reliance on a legal memo produced by GTMO’s Staff Judge Advocate that senior military lawyers called “legally insufficient” and “woefully inadequate” is deeply troubling.

Conclusion 13: Secretary of Defense Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there. Secretary Rumsfeld’s December 2, 2002 approval of Mr. Haynes’s recommendation that most of the techniques contained in GTMO’s October 11, 2002 request be authorized, influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq.

Conclusion 14: Department of Defense General Counsel William J. Haynes II’s direction to the Department of Defense’s Detainee Working Group in early 2003 to consider a legal memo from John Yoo of the Department of Justice’s OLC as authoritative, blocked the Working Group from conducting a fair and complete legal analysis and resulted in a report that, in the words of then-Department of the Navy General Counsel Alberto Mora contained “profound mistakes in its legal analysis.” Reliance on the OLC memo resulted in a final Working Group report that recommended approval of several aggressive techniques, including removal of clothing, sleep deprivation, and slapping, similar to those used in SERE training to teach U.S. personnel to resist abusive interrogations.

Conclusions on Interrogations in Iraq and Afghanistan

Conclusion 15: Special Mission Unit (SMU) Task Force (TF) interrogation policies were influenced by the Secretary of Defense’s December 2, 2002 approval of aggressive interrogation techniques for use at GTMO. SMU TF interrogation policies in Iraq included the use of aggressive interrogation techniques such as military working dogs and stress positions. SMU TF policies were a direct cause of detainee abuse and influenced interrogation policies at Abu Ghraib and elsewhere in Iraq.

Conclusion 16: During his assessment visit to Iraq in August and September 2003, GTMO Commander Major General Geoffrey Miller encouraged a view that interrogators should be more aggressive during detainee interrogations.

Conclusion 17: Interrogation policies approved by Lieutenant General Ricardo Sanchez, which included the use of military working dogs and stress positions, were a direct cause of detainee abuse in Iraq. Lieutenant General Sanchez’s decision to issue his September 14, 2003 policy with the knowledge that there were ongoing discussions as to the legality of some techniques in it was a serious error in judgment. The September policy was superseded on October 12, 2003 as a result of legal concerns raised by U.S. Central Command. That superseding policy, however, contained ambiguities and contributed to confusion about whether aggressive techniques, such as military working dogs, were authorized for use during interrogations.

Conclusion 18: U.S. Central Command (CENTCOM) failed to conduct proper oversight of Special Mission Unit Task Force interrogation policies. Though aggressive interrogation techniques were removed from Combined Joint Task Force 7 interrogation policies after CENTCOM raised legal concerns about their inclusion in the September 14, 2003 policy issued by Lieutenant General Sanchez, SMU TF interrogation policies authorized some of those same techniques, including stress positions and military working dogs.

Conclusion 19: The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO. Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Sun Oct 13, 2013 5:17 am

PART 5 OF 27 (Inquiry Into the Treatment of Detainees in U.S. Custody)

I. Early Influences on Interrogation Policy (U)

A. Redefining the Legal Framework For the Treatment of Detainees (U)


(U) From the time of their ratification until the invasion of Afghanistan in 2001, the United States government had accepted the terms of the Geneva Conventions and the U.S. military had trained its personnel to apply the Conventions during wartime. Soon after the launch of Operation Enduring Freedom (OEF), however, Administration lawyers constructed a new legal framework that abandoned the traditional U.S. application of the Geneva Conventions. [1]

(U) On January 9, 2002 attorneys at the Department of Justice wrote a memorandum to Department of Defense (DoD) General Counsel William "Jim" Haynes II, advising him that the Third Geneva Convention did not apply to the conflict with al Qaeda or the Taliban in Afghanistan. [2] The attorneys wrote the memo with the understanding that the Defense Department had established a long-term detention site at the U.S. Naval Base, Guantanamo Bay, Cuba (GTMO) for al Qaeda and Taliban members captured by U.S. military forces or transferred from U.S. allies in Afghanistan. [3]

(U) On January 18, 2002, White House Counsel Alberto Gonzales advised the President of the Department of Justice (DoJ) opinion. [4] After being briefed by Judge Gonzales, the President concluded that the Third Geneva Convention did not apply to the conflict with al Qaeda or to members of the Taliban, and that they would not receive the protections afforded to Prisoners Of War (POWS). [5]

(U) On January 19, 2002, Secretary of Defense Donald Rumsfeld instructed the Chairman of the Joint Chiefs of Staff, General Richard Myers, to inform all Combatant Commanders that al Qaeda and Taliban members are "not entitled to prisoner of war status" under the Geneva Conventions. [6] Secretary Rumsfeld added that combatant commanders should "treat [detainees] humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949." [7] Secretary Rumsfeld also instructed that his order be transmitted to the subordinate command at Guantanamo Bay for implementation. On January 21, 2002 the Chairman informed the combatant commanders of the new policy. [8]

(U) During the next few weeks - after Secretary of State Colin Powell asked the President to reconsider his decision - Administration attorneys debated the rationale for denying legal protections under the Geneva Conventions to members of al Qaeda and the Taliban. [9] On January 25, 2002, Judge Gonzales argued in a memorandum to the President that the war on terror had "render[ed] obsolete Geneva's strict limitations on questioning of enemy prisoners and render[ed] quaint some of its provisions ..." He recommended that the President stand by his order to set aside the Geneva Conventions. [10]

(U) On February 7, 2002, President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees (designated as ''unlawful combatants" in the memorandum) were not entitled to POW status or the legal protections afforded by the Third Geneva Convention. [11] While the President also found that Common Article 3 (requiring humane treatment) did not apply to either al Qaeda or Taliban detainees, his order stated that as "a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions." [12]

(U) The President's policy statement was directed at the United States Armed Forces. The Committee is unaware of a similar Presidential policy statement governing other agencies' treatment of detainees. A February 2, 2002 State Department memo reflected that Administration lawyers involved in the discussion about the application of the Third Geneva Convention to the Taliban and al Qaeda had "all agree[d] that the CIA is bound by the same legal restrictions as the U.S. military." [13] The memo also stated, however, that "CIA lawyers believe[d] that, to the extent that the [Third Geneva Convention's] protections do not apply as a matter of law but those protections are applied as a matter of policy, it is desirable to circumscribe that policy so as to limit its application to the CIA." [14] According to the memo, "other Administration lawyers involved did not disagree with or object to the CIA's view." [15] Months later, in an October 2, 2002 meeting with DoD officials at Guantanamo Bay, Chief Counsel to the CIA's CounterTerrorist Center (CTC) Jonathan Fredman reportedly stated that the "CIA rallied" for the Conventions not to apply. [16]

(U) Several military officers, including members of the Judge Advocate General (JAG) Corps, have described difficulties in interpreting and implementing the President's February 7, 2002 order. A former Staff Judge Advocate (SJA) for the Joint Forces Command (JFCOM) stated that he thought the President's order was a tough standard for the Department of Defense (DoD) to apply in the field because it replaced a well-established military doctrine (legal compliance with the Geneva Conventions) with a policy that was subject to interpretation. [17] The President's order was not, apparently, followed by any guidance that defined the terms "humanely" or "military necessity." As a result, those in the field were left to interpret the President's order.

B. Department of Defense Office of General Counsel Seeks Information from the Joint Personnel Recovery Agency (JPRA) (U)

(U) As Administration lawyers began to reconsider U.S. adherence to the Geneva Conventions, the DoD Office of the General Counsel also began seeking information on detention and interrogation. In December 2001, the DoD General Counsel's office contacted the Joint Personnel Recovery Agency (JPRA), headquartered at Fort Belvoir, Virginia, for information about detainee "exploitation." [18]

(U) JPRA is an agency of the Department of Defense under the command authority of the U.S. Joint Forces Command (JFCOM). Part of JPRA's mission is to oversee military Survival Evasion Resistance and Escape (SERE) training. [19] In the "resistance" phase of SERE training, students are subject to physical and psychological pressures (SERE techniques) designed to simulate conditions to which they might be subject if captured by an enemy that did not abide by the Geneva Conventions. Exposing U.S. military personnel to these physical and psychological pressures in a highly controlled environment equips them with the skills needed to increase resistance to hostile interrogations. Among the physical and psychological pressures used at SERE schools are stress positions, sleep deprivation, face and abdomen slaps, isolation, degradation (such as treating the student like an animal), and "walling." Until November 2007, waterboarding was also an approved training technique in the U.S. Navy SERE school. [20]

[Delete] [delete] The SERE schools employ a number of strict controls to limit the physical or psychological impact of these techniques on their students. [21] For example, there are limits on the frequency, duration, and/or intensity of certain techniques. Instructors are also required to consider the extensive medical and/or psychological screening records of each student before administering any technique. [22] Students are even given a phrase they can use to make the instructor immediately cease application of all pressures. [23]

(U) SERE instructors are themselves psychologically prescreened prior to hiring, and must submit to a nearly year-long training process, annual psychological screening, and extensive monitoring and oversight during practical exercises. These requirements are designed to prevent instructor behavioral drift, which if left unmonitored, could lead to abuse of students. [24]

(U) JPRA's expertise lies in training U.S. military personnel who are at risk for capture, how to respond and resist interrogations (a defensive mission), not in how to conduct interrogations (an offensive mission). [25] The difference between the two missions is of critical importance. SERE instructors play the part of interrogators, but they are not typically trained interrogators. SERE instructors are not selected for their roles based on language skills, intelligence training, or expertise in eliciting information. [26]

[Delete] [delete]. The risk of using SERE physical pressures in an interrogation context, instead of in the highly controlled SERE school environment, was highlighted by the senior Army SERE psychologist LTC Morgan Banks in an email to personnel at Guantanamo Bay, Cuba. He stated:

Because of the danger involved, very few SERE instructors are allowed to actually use physical pressures. It is extremely easy for U.S. Army instructors, training U.S. Army soldiers, to get out of hand, and to injure students. The training, from the point of the student, appears to be chaotic and out of control. In reality, everything that is occurring [in SERE school] is very carefully monitored and paced; no one is acting on their own during training. Even with all these safeguards, injuries and accidents do happen. The risk with real detainees is increased exponentially. [27]


(U) Despite the differences between the simulated interrogations at SERE school and real world interrogations of detainees, in December 2001, the DoD General Counsel's office sought JPRA's advice on the "exploitation" of detainees. The Committee is not aware of JPRA activities in support of any offensive interrogation mission prior to that request from the General Counsel's office. In response to the request, JPRA Chief of Staff Lt Col Daniel Baumgartner sent Deputy General Counsel for Intelligence Richard Shiffrin a memorandum on the "exploitation process" and a cover note offering further JPRA assistance on "exploitation and how to resist it." [28]

[Delete] The memorandum outlined JPRA's view on "obtaining useful intelligence information from enemy prisoners of war" (EPWs). [29]

(U) [Delete] The memo provided the JPRA perspective on how their SERE school staff would handle the "initial capture," "movement," and "detention" of prisoners. [30] It also provided advice on interrogation and recommended various approaches, including the use of undefined "deprivations." [31]

[Delete] [delete] The memo cautioned, however, that while "[p]hysical deprivations can and do work in altering the prisoners' mental state to the point where they will say things they normally would not say," use of physical deprivations has "several major downfalls." [32] JPRA warned that physical deprivations were "not as effective" a means of getting information as psychological pressures, that information gained from their use was "less reliable," and that their use "tends to increase resistance postures when deprivations are removed." [33] JPRA also warned that the use of physical deprivations has an "intolerable public and political backlash when discovered." [34]

C. JPRA Collaboration with Other Government Agencies (OGAs) (U)

[Delete] In December 2001 or January 2002, a retired Air Force SERE psychologist, Dr. James Mitchell, [delete] asked his former colleague, the senior SERE psychologist at JPRA, Dr. John "Bruce" Jessen, to review documents describing al Qaeda resistance training. [35] The two psychologists reviewed the materials, [Big delete] and generated a paper on al Qaeda resistance capabilities and countermeasures to defeat that resistance.

[Delete] On February 12, 2002, Dr. Jessen sent the paper to JPRA Commander Colonel John "Randy" Moulton, who in turn, emailed the paper to his chain of command at JFCOM with a recommendation that it be forwarded to the Joint Staff for dissemination. [36] In his email, Col Moulton wrote:

While JPRA is not in the business of strategic debriefing (interrogation), we do apply the most sophisticated techniques available in order to better prepare our [personnel] for resistance. After over 30 years of training we have become quite proficient with both specialized resistance and the ways to defeat it. [37]


[Delete] [delete] Col Moulton also recommended in his email that a JPRA team travel to Guantanamo Bay, Cuba to "provide instruction on basic and advanced techniques and methods" that JPRA had found effective in countering resistance in students at SERE courses. [38] Col Moulton suggested that JPRA create a "short course" to teach relevant U.S. personnel about "interrogation from the resistance side" noting that JPRA had already received an informal request to conduct training for the [delete] whose personnel were supporting interrogation operations at Guantanamo Bay and in Afghanistan. [39] The JPRA Commander described the potential collaboration between JPRA and [delete] as a "win-win opportunity." [40]

[Delete] [delete] In a subsequent email to Brigadier General (BG) Galen Jackman, the Operations Chief at United States Southern Command (SOUTHCOM), Brigadier General (Brig Gen) Thomas Moore, JFCOM's Director for Operations and Plans (13), stated that JPRA was "prepared to support [SOUTHCOM] in any potential collaboration," but that they would not assist without an official request from SOUTHCOM or GTMO. [41]

[Delete] The JPRA [delete] paper and Col Moulton's recommendations were further circulated by email from JFCOM to officers at the Joint Staff and to several Combatant Commands, including those with responsibility for Afghanistan, Iraq, and Guantanamo Bay. [42]

D. JPRA Support to the Defense Intelligence Agency (DIA) (U)

[Delete] In February 2002, the Defense Intelligence Agency's (DIA) [delete] sent an official request for support to JFCOM's J3, Brig Gen Moore. [43]

[Delete] The request memo stated that [Big delete].

[Delete] [delete] In response to the request, two JPRA personnel - senior SERE psychologist Bruce Jessen and JPRA instructor Joseph Witsch [Big delete] .The two week class was described as an "ad hoc 'crash' course on interrogation" for the "next crew (rotation) going to SOUTHCOM." [46] The JPRA team also participated in a separate video teleconference with [delete] leadership and GTMO interrogation staff where issues [delete] were discussed. [47] Dr. Jessen said that he and Mr. Witsch went to make a "pitch" to [delete] about how JPRA could assist. [48]

[Delete] Mr. Witsch stated that he worked with Dr. Jessen to develop a set of briefing slides for the [delete] training. [49] The Department of Defense provided the Committee with slide presentations that appeared to have been produced by JPRA for the March 8, 2002 training. Mr. Witsch testified that two slide presentations (1) [delete]. Based on Recently Obtained AI Qaeda Documents" and (2) "Exploitation" - appeared to be the same as those used by JPRA in the March 8, 2002 training. [50] Dr. Jessen told the Committee that he did not recognize the slides as those that he presented [delete] but that the vast majority of the slides were consistent with what he would have taught at the training session. [51]

[Delete] The "Al Qaeda Resistance Contingency Training" presentation described methods used by al Qaeda to resist interrogation and exploitation and [delete]

The presentation also described countermeasures to defeat al Qaeda resistance, including [Big delete]. [53] Mr. Witsch testified to the Committee that the countermeasures identified in the slides were "just an interpretation of what we were doing at the time and what we constantly did when we trained SERE students." [54]

[Delete] The presentation on detainee "exploitation" described phases of exploitation and included instruction on initial capture and handling, conducting interrogations, and long-term exploitation. [55] The exploitation presentation also included slides on "isolation and degradation," "sensory deprivation," "physiological pressures," and "psychological pressures." [56] At SERE school, each of these terms has special meaning.

[Delete [delete] The [delete] instructor guide describes "isolation" as "a main building block of the exploitation process" and says that it "allows the captor total control over personal inputs to the captive." [57] With respect to degradation, the guide contains examples of the methods used by SERE instructors to take away the "personal dignity" of students at SERE school. [58] Examples of degradation techniques used at SERE school include [Big delete]. Mr. Witsch, the JPRA instructor who led the March 8, 2002 training, told the Committee that stripping could also be considered a degradation tactic. [60]

[Delete] Mr. Witsch could not recall what the JPRA team discussed as part of the instruction to [delete] relating to degradation. [61]

[Delete] [delete] JPRA materials also describe "sensory deprivation" and its place in the exploitation process. [62] In testimony to the Committee, Mr. Witsch described hooding (placing a hood over the head of a student) and white noise (such as radio static) as sensory deprivation methods used on students in SERE school. [63] In materials provided to Department of Defense lawyers in July 2002, JPRA explained that "[w]hen a subject is deprived of sensory input for an [un]interrupted period, for approximately 6-8 hours, it is not uncommon for them to experience visual, auditory and/or tactile hallucinations. If deprived of input, the brain will make it up." [64]

[Delete] Mr. Witsch could not recall the discussion of "sensory deprivation" at the [delete] training. [65]

(U) When used in the context of simulated interrogations conducted at SERE school, JPRA uses the term "physiological pressures" synonymously with approved physical pressures. [66]

[Delete] Mr. Witsch could not recall what the discussion of "physiological and psychological pressures" at [delete]. [67] He said that he provided [delete] personnel with a ''vision of how we (JPRA) prepare, train, and equip our personnel" in SERE school. [68] Mr. Witsch could not recall if physical pressures were discussed at the training. [69] Dr. Jessen, the senior SERE psychologist who also provided instruction to [delete] personnel, said that physical pressures were not discussed at the March 8, 2002 training. [70]

[Delete] [delete] Following the training, Dr. Jessen sent an email to JPRA Commander Col Randy Moulton stating that the JPRA team "provided instruction to [delete] personnel on the content of US Level "C" Resistance to Interrogation training and how this knowledge can be used to exploit al Qaeda detainees." [71] Level "C" training includes the physical and psychological pressures used at SERE school. Dr. Jessen also stated, however, that the JPRA team provided suggestions on "how to exploit al Qaeda detainees for intelligence within the confines of the Geneva Conventions." [72] Dr. Jessen told the Committee, however, that he would not have known at the time if isolation, degradation, sensory deprivation, or other topics referenced in the slides would have been within the confines of the Geneva Conventions. [73]

[Delete] Days later, Dr. Jessen sent Col Moulton another email with his thoughts about additional training for interrogators. Dr. Jessen explained that for future training, one day would be sufficient to "cover the basics of DOD Level 'C' Resistance training and the special contingency information" that they addressed [delete]. However, he said that if he added "role-play" to the curriculum, he would need at least four days. [74]

[Delete] Dr. Jessen stated: "My impression is [delete] requires a more 'exploitation oriented' approach than the students received. [JPRA's Personnel Recovery Academy (PRA)] instructors do this better than anyone. If JPRA provided role play it would be manpower intensive, require more time and space (rooms) and video monitor equipment (which PRA has)." [75] Dr. Jessen recommended that he come up with a course curriculum with input from others, if JPRA planned to "go[] this direction." [76]

E. JPRA Recommendations for GTMO (U)

[Delete] [delete] training was not the first time JPRA provided advice to GTMO personnel. Just before [delete] training, JPRA prepared a memo on "Prisoner Handling Recommendations" at GTMO for Col Cooney, the Executive Officer for the Directorate of Operations (13) at SOUTHCOM. [77] The memo had been drafted by Dr. Jessen, the senior SERE psychologist, and Christopher Wirts, the Chief of JPRA's Operational Support Office (OSO). [78] The memo noted that its recommendations were based on a "limited understanding of the procedures and conditions that exist[ed]" at the detention facility at Guantanamo Bay. [79]

[Delete] [delete] The JPRA memo contained specific recommendations for GTMO, including that GTMO "enforce the strictest 'base line' prison behavior policy possible within [Rules of Engagement]" by imposing and enforcing punishment consequences more restrictive than base line rules and [Big delete]. [80] JPRA also recommended that GTMO tailor punishment to maximize cultural undesirability and tailor rewards to maximize cultural desirability.

F. Colonel Herrington's Assessment of GTMO (U)

(U) At the time of the JPRA memo, GTMO was seeking assistance from other quarters as well. In March 2002, Commander of Joint Task Force 170 (ITF-170) Major General (MG) Michael Dunlavey invited Colonel Stuart A. Herrington (Ret.), an experienced Army intelligence officer, to Guantanamo Bay to conduct an assessment of operations at the facility. [81] Following his three day assessment visit, COL Herrington submitted a formal written report on March 22, 2002 to MG Dunlavey as well as to the Command at SOUTHCOM and the Army Deputy Chief of Staff for Intelligence. [82]

(U) At the time of COL Herrington's visit, the mission at Guantanamo was under the control of two different task forces, each commanded by a different Major General: ITF-170 for intelligence exploitation and JTF-160 for detention and security operations. [83] COL Herrington noted in his assessment that there was ''unanimity among all military and interagency participants in TF-170 that the security mission is sometimes the tail wagging the intelligence dog" and stated:

To effectively carry out its intelligence exploitation mission, TF 170 and its interagency collaborators need to be in full control of the detainees' environment. Treatment, rewards, punishment, and anything else associated with a detainee should be centrally orchestrated by the debriefing team responsible for obtaining information from that detainee. [84]


(U) COL Herrington also expressed concern that actions (positive or negative) which guards might take as routine, such as singling a detainee out for a shakedown or providing an extra chaplain's visit, might impact the ability of interrogators and debriefers from setting the tone of the questioning sessions. [85]

(U) COL Herrington found that facilities and procedures at GTMO for handling detainees posed serious problems. He said that design flaws at GTMO's current and planned detention sites hampered intelligence collection, noting that the "open" facilities, for example, facilitated communications among the detainees and discouraged detainee cooperation by permitting detainees to support each other's resistance efforts. [86]

(U) COL Herrington also warned that certain security procedures in place at the time could have a negative impact on intelligence collection, stating:

The austere nature of the facilities and the rigorous security movement procedures (shackles, two MPs with hands on the detainee, etc.) reinforces to detainees that they are in prison, and detracts from the flexibility that debriefers require to accomplish their mission... These views have nothing to do with being "soft" on the detainees. Nor do they challenge the pure security gains from such tight control. The principal at work is that optimal exploitation of a detainee cannot be done from a cell ... [87]


(U) Specifically, COL Herrington recommended that MPs not be in the room during interrogations and warned that, while shackling a detainee might make sense from a security standpoint, it could be counterproductive to intelligence collection:

Shackling one of the detainee's feet to the floor during interrogation might make sense from a security perspective (although, with one or two MPs present, it is arguable overkill). However, such shackling is either a) humiliating, or b) sends a message to the detainee that the debriefer is afraid of him, or c) reminds him of his plight as a prisoner. [88]


(U) COL Herrington observed that most of the interrogators at GTMO lacked the requisite training in strategic elicitation or the experience required to be effective with the detainees. [89] He said that, of the 26 interrogators present at the time, only one had enough Arabic language experience to interrogate without an interpreter. [90]

[Delete] A memo written by Colonel Mike Fox (SOUTHCOM's Director of Intelligence Operations) just a month after COL Herrington's report, also discussed how conditions at GTMO inhibited successful interrogations. [Big delete]

[Big delete]

G. JPRA Prepares Draft Exploitation Plan (U)

(U) As experienced intelligence officers were making recommendations to improve intelligence collection, JPRA officials with no training or experience in intelligence collection were working on their own exploitation plan. In April 2002, senior SERE psychologist Bruce Jessen drafted an exploitation plan and circulated that plan to Commander of the JPRA, Col Randy Moulton, and the senior civilian leadership of the organization. [94]

[Delete] The exploitation plan drafted by the senior SERE psychologist contained recommendations for JPRA involvement in the detainee exploitation process at an undisclosed facility.

[Delete] [delete] The "Exploitation Draft Plan," which was circulated on April 16, 2002, stated that its objective was to "[h]old, manage and exploit detainees to elicit critical information." [95] The plan proposed an "exploitation facility" be established at a [delete] off limits to non-essential personnel, press, ICRC, or foreign observers." [96] The plan also described the fundamentals -- [Big delete] "exploitation of select al Qaeda detainees." [97]

[Delete] [delete] The first option was for JPRA to field, deploy, direct, and sustain an entire interrogation team. [98] The plan recommended that JPRA not pursue this course stating, "No - Too much of a manpower drain and we [JPRA] are not prepared to provide this kind of support infrastructure." [99] A second option was for JPRA to field a "lead captivity/exploitation expert (JPRA Senior SERE Psychologist) to advise and support" the exploitation process and to have a "sponsor" provide all other personnel and direct the process. This option was also rejected as "ineffective," noting that if JPRA could "direct" the exploitation process, there would be a "good chance of [JPRA] making a real difference," but "if not," there are "too many other responsibilities to expend ... energy on." [100]

[Delete] [delete] The third option was described as follows:

JPRA fields and deploys core captivity/exploitation team - This team directs the process under the lead of the JPRA Senior SERE Psychologist and receives all additional specified support from a sponsor - Those sponsor individuals who directly assist in the exploitation process will receive training from the JPRA cadre. [101]


[Delete] [delete] While this option was recommended as the "[b ]est match of expertise and capability," the plan cautioned that JPRA "need[ed] to be careful in establishing this relationship" and that JPRA should retain ''the authority to direct the entire process or current mistakes will be repeated (GTMO, lack of experience of in-theater interrogators, ineffective captivity handling and facility routine) - [The] JPRA plan should be implemented from the start of detention through holding, transport, and exploitation." [102]

[Delete] Dr. Jessen's draft exploitation plan described the means by which JPRA would implement that recommendation, and included requirements for an undisclosed exploitation facility and the means by which detainees would be transported and held there. [103]

[Delete] [delete] A section of Dr. Jessen's draft exploitation plan also identified "Critical Operational Exploitation Principles" for interrogation operations. Those principles included:

[Big delete] (The only restricting factor should be the Torture Convention), [7] Established latitude and process to offer and validate information for concessions, [Big delete]


[Delete] [delete] When asked about the plan, which his email referred to as "my" plan, Dr. Jessen said that there are elements that he did not draft. [105] For example, he told the Committee that he did not believe that the Torture Convention was the only controlling authority for exploitation Rules of Engagement. [106] Dr. Jessen, however, did not reject the idea of having JPRA support the exploitation process. Dr. Jessen said that he knew how to set up training programs, had observed numerous "interrogations" at SERE school, and thought that some JPRA instructors could make excellent interrogators. [107] He also told the Committee that he supported having SERE psychologists observe interrogations and provide advice and assistance to interrogators, but that that he did not support having SERE psychologists in the interrogation booth with interrogators and detainees.

(U) Upon receiving the plan, JPRA Commander Col Randy Moulton asked Dr. Jessen to craft a briefing to ''take up for approval," which included "why we (USG) need it, how it falls within our chartered responsibilities (or if not, why we should do it) and then make a recommendation." [108] Col Moulton testified to the Committee that he did not recall any subsequent JPRA briefings for U.S. Joint Forces Command on Dr. Jessen's draft exploitation plan and did not remember whether or not the plan was implemented. [109]

_______________

Notes:

1. According to Jack Goldsmith, Special Counsel in the Department of Defense (2002-2003) and Assistant Attorney General, Office of Legal Counsel (2003-2004): "never in the history of the United States had lawyers had such extraordinary influence over war policies as they did after 9/11. The lawyers weren't necessarily expert on al Qaeda, or Islamic fundamentalism, or intelligence, or international diplomacy, or even the requirements of national security. But the lawyers -- especially White House and Justice Department lawyers -- seemed to 'own' issues that had profound national security and political and diplomatic consequences." These Administration lawyers "dominated discussions on detention, military commissions, interrogation, GTMO, and many other controversial terrorism policies." Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W.W. Norton & Company 2007) at 130-31 (hereinafter "Goldsmith, The Terror Presidency").

2. Memo from Deputy Assistant Attorney General John Yoo and Special Counsel Robert Delahunty of Defense General Counsel William J. Haynes II. Application of Treaties and Laws to al Qaeda and Taliban Detainees (January 9, 2002).

3. Ibid.; Department of Defense News Briefing (December 27, 2001), available at http://www.defnselink.mil/TranscriptsfT ... iptID=2696 (Secretary of Defense Donald Rumsfeld announced plans to hold detainees at the U.S. Naval Station at Guantanamo Bay, Cuba in a news conference).

4. In a memo to the President, from White House Counsel Alberto Gonzales to President George W. Bush, Decision Re Application Of The Geneva Convention on Prisoners Of War To The Conflict With Al Qaeda And The Taliban (January 25, 2002).

5. In a memo to the President, White House Counsel Gonzales noted "I understand that you decided that the [Third Geneva Convention] does not apply [to the conflicts with al Qaeda or the Taliban] and, "accordingly, that al Qaeda and Taliban detainees are not prisoners of war" under the [Third Geneva Convention]. See Memo from White House Counsel Alberto Gonzales to President George W. Bush, Decision Re Application Of The Geneva Convention on Prisoners Of War To The Conflict With Al Qaeda And The Taliban (January 25, 2002).

6 .Memo from Secretary of Defense Donald Rumsfeld to Chairman of the Joint Chiefs of Staff General Richard Myers Status of Taliban and Al Qaeda (January 19, 2002).

7. Ibid.

8. Cable from the Chairman of the Joint Chiefs of Staff Richard Myers to U.S. Military Unified Commands and Services (January 21, 2002).

9. Memo from White House Counsel Alberto Gonzales to President George W. Bush, Decision Re Application Of The Geneva Convention on Prisoners Of War To The Conflict With Al Qaeda And The Taliban (January 25, 2002).

10. Judge Gonzales dismissed as ''unpersuasive'' legal and policy arguments that such an order would reverse longstanding U.S. policy and practice; undermine the protections afforded to U.S. or coalition forces captured in Afghanistan; limit prosecution of enemy forces under the War Crimes Act (which only applies if the Geneva Conventions apply); provoke widespread international condemnation, even if the U.S. complies with the core humanitarian principles of the treaty as a matter of policy; may encourage other countries to look for "technical loopholes" to avoid being bound by the Geneva Conventions; may discourage allies from turning over terrorists to the U.S. or providing legal assistance to the U.S.; may undermine U.S. military culture which emphasizes maintaining the highest standard of conduct in combat; and could introduce an element of uncertainty in the status of adversaries. According to Gonzales, the "positive" consequences of setting aside the Third Geneva Convention included "preserving flexibility" in the war and "substantially reduc[ing] the threat of domestic criminal prosecution under the War Crimes Act." Memorandum from White House Counsel Alberto Gonzales to President George W. Bush, Decision Re Application Of The Geneva Convention on Prisoners Of War To The Conflict With Al Qaeda And The Taliban (January 25, 2002).

11. Memo from President George W. Bush, Humane Treatment of al Qaeda and Taliban Detainees (February 7, 2002).

12. Memo from President George W. Bush, Humane Treatment of al Qaeda and Taliban Detainees (February 7, 2002) .

13.The State Department memo reflected the views of lawyers from the Department of Justice, Department of Defense, Department of State, White House Counsel's office, Office of the Vice President, Joint Chiefs of Staff, and the Central Intelligence Agency. Memorandum from State Department Legal Adviser William Taft, IV to White House Counsel Alberto Gonzales, Comments on Your Paper on the Geneva Convention (February 2, 2002).

14. Ibid.

15. Ibid.

16. Counter Resistance Strategy Meeting Minutes (undated) at 4, attached to email from Blaine Thomas to Sam McCahon, [delete] and Mark Fallon (October 24, 2002) (hereinafter "Counter Resistance Strategy Meeting Minutes").

17. Committee staff interview of Daniel Donovan (November 28, 2007).

18. "Exploitation" is a term that JPRA uses to describe the means by which captors use prisoners for their own tactical or strategic needs. Interrogation is only one part of the exploitation process. Other examples of exploitation [Big delete]. Hearing to Receive Information Relating To The Treatment of Detainees, Senate Committee on Armed Services, 110th Cong. (August 3, 2007) (Testimony of Terrence Russell) at 32 (hereinafter "Testimony of Terrence Russell (August 3, 2007)"); Fax cover sheet from Lt Col Daniel Baumgartner to Richard Shiffrin (December 17, 2001).

19. Oversight of SERE training is only part of JPRA's mission. JPRA is responsible for coordinating joint personnel recovery capabilities. Personnel recovery is the term used to describe efforts to obtain the release or recovery of captured, missing, or isolated personnel from uncertain or hostile environments and denied areas.

20. Joint Personnel Recovery Agency, Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees (undated), attached to Memo from Lt Col Daniel Baumgartner to Office of the Secretary of Defense General Counsel (July 26, 2002) (hereinafter "Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees'').

21. Responses of Jerald Ogrisseg to Questions for the Record (July 28, 2008); Testimony of Terrence Russell (August 3, 2007) at 123.

22. Responses of Jerald Ogrisseg to Questions for the Record (July 28, 2008) ("Military SERE training students are screened multiple times prior to participating in training to ensure that they are physical and psychologically healthy. They get screened prior to entering the service to ensure that they don't have certain disorders. Students are required to get screened by military doctors at their home bases prior to traveling for SERE training to ensure that they meet the physical and psychological standards for participating in training. Most SERE schools also mandate that students complete screening questionnaires after they arrive at SERE school as a final safety check and for additional help or interventions if needed, to include being restricted from experiencing particular training procedures. Furthermore, the students arrive with their medical records in hand or available electronically to document their entire medical history, and indications of prior psychological diagnoses since their original military-entry physicals. These procedures are used not only to screen people out of participating in training, but also for identifying people who could be provided preventative interventions in order to increase their probab[ility] of success in training.'')

23. The Origins of Aggressive Interrogation Techniques: Part I of the Committee's Inquiry Into the Treatment of Detainees in U.S. Custody, Senate Committee on Armed Services, 110th Cong. (June 17, 2008) (hereinafter "SASC Hearing (June 17, 2008)"); FASO Detachment Brunswick Instruction 3305.C (January 1, 1998).

24. According to Dr. Jerald Ogrisseg, the former Chief of Psychology Services at the Air Force SERE school and current JPRA Chief Human Factors, instructors are constantly monitored by other JPRA personnel, command staff, and SERE psychologists to minimize the potential for students to be injured. These oversight mechanisms are designed to ensure that SERE instructors are complying with operating instructions and to check for signs that instructors do not suffer from moral disengagement (e.g., by becoming too absorbed in their roles as interrogators and starting to view U.S. military SERE students as prisoners or detainees). These oversight mechanisms are also designed to watch students for "indications that they are not coping well with training tasks, provide corrective interventions with them before they become overwhelmed, and if need be, re-motivate students who have become overwhelmed to enable them to succeed." Responses of Jerald Ogrisseg to Questions for the Record (July 28, 2008); Committee staff interview of Jerald Ogrisseg (June 26, 2007).

25. Department of Defense Office of the Inspector General, Review of DoD-Directed Investigations of Detainee Abuse (U) (August 25, 2006) at 24 (hereinafter "DoD IG Report'').

26. A trained interrogator is expected to be familiar with the social, political and economic institutions and have an understanding of the geography, history and language of "target" countries. Additionally, the more proficient an interrogator is with languages the "better he will be able to develop rapport with his source" and "follow up on source leads to additional information." Army Field Manual (FM) 34-52, 1-14.

27. Email from LTC Morgan Banks to MAJ Paul Burney and [delete] (October 2, 2002).

28. Fax cover sheet from LTC Daniel Baumgartner to Richard Shiffrin (December 17, 2001).

29. Exploitation Process at 1, attached to fax from LTC Daniel Baumgartner to Richard Shiffrin (December 17, 2001).

30. [Delete] Exploitation Process at 1-3 [Big delete]

31. Ibid. at 3-4.

32. Ibid. at 4.

33. Ibid.

34. Ibid.

35. Committee staff interview of Bruce Jessen (July 11, 2007); Email from Col John R. (Randy) Moulton to MAJ Jack Holbein, BGen Thomas Moore, CAPT Darryl Fengya, and [delete] (February 14, 2002).

36. Email from Bruce Jessen to Col Randy Moulton (February 12, 2002).

37. Email from Col Randy Moulton to MAJ Jack Holbein, BGen Thomas Moore, CAPT Darryl Fengya, [delete] (February 14, 2002).

38. Ibid.

39. Ibid.; Memo from Col Mary Moffitt (via BG Ronald Burgess) to BGen Thomas Moore (undated) at 1.

40. Email from Col Randy Moulton to MAJ Jack Holbein, BGen Thomas Moore, CAPT Darryl Fengya, [delete] (February 14, 2002).

41. Email from BGen Thomas Moore to BG Galen Jackman et al. (February 14, 2002).

42. Email from LTC Michael McMahon to Lt Col Steven Ruehl, COL Jim Sikes, COL Daniel Bolger, Steve Wetzel, CAPT Bill Pokorny, COL Cos Spofford, COL Edward Short, Col Kevin Kelley (February 14, 2002).

43. Memo from Col Mary Moffitt (via BG Ronald Burgess) to BGen Thomas Moore (undated).

44. Ibid.

45. Email from Bruce Jessen to Col Randy Moulton (March 12, 2002); see also SASC Hearing (June 17, 2008) (Testimony of Lt Col Daniel Baumgartner) ("DIA accepted [JPRA's] help ... with their deploying groups" and JPRA instruction "centered on resistance techniques, questioning techniques, and general information on how exploitation works.")

46. Email from Jim Perna to Christopher Wirts, Bruce Jessen, and Joseph Witsch (February 20, 2002).

47. Email from Bruce Jessen to Col Randy Moulton (March 12, 2002).

48. Committee staff interview of Bruce Jessen (November 13, 2007).

49. Hearing to Receive Information Relating To The Treatment of Detainees, Senate Committee on Armed Services, 110th Cong. (September 4, 2007) (Testimony of Joseph Witsch) at 20 (hereinafter "Testimony of Joseph Witsch (September 4, 2007)'').

50. Testimony of Joseph Witsch (September 4, 2007) at 20.

51. Committee staff interview of Bruce Jessen (November 13, 2007).

52. [Delete] Joint Personnel Recovery Agency, Al Qaeda Resistance Contingency Training: Contingency Training for [delete] Personnel Based on Recently Obtained Al Qaeda Documents (undated).

53. Ibid.

54. Testimony of Joseph Witsch (September 4, 2007) at 46.

55. Joint Personnel Recovery Agency, Exploitation (undated).

56. [Delete] Another slide describing captor motives states: establish absolute control, induce dependence to meet needs, elicit compliance, shape cooperation. Joint Personnel Recovery Agency, Exploitation (undated). In other JPRA materials, techniques designed to achieve these goals include isolation or solitary confinement, induced physical weakness and exhaustion, degradation, conditioning, sensory deprivation, sensory overload, disruption of sleep and biorhythms, and manipulation of diet. Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees.

57. Level C Peacetime Governmental Detention Survival JPRA Instructor Guide, Exploitation: Threats and Pressures, Module 6.0, Lesson 6.1, para 5.3.1 (Version GO1.1).

58. Ibid. at para 5.3.3.

59. Ibid.

60. Testimony of Joseph Witsch (September 4, 2007) at 22.

61. Ibid.

62. Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees.

63. Testimony of Joseph Witsch (September 4, 2007) at 23-24.

64. Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees; See Section II D, infra.

65. Testimony of Joseph Witsch (September 4, 2007) at 22.

66. Committee staff interview of Bruce Jessen (July 11, 2002).

67. Testimony of Joseph Witsch (September 4, 2007).

68. Ibid. at 44.

69. Ibid. at 25.

70. Committee staff interview of Bruce Jessen (July 11, 2002).

71. Email from Bruce Jessen to Col Randy Moulton (March 12, 2002).

72. Ibid.

73. Dr. Jessen told the Committee that, at the time, he did not know that the scope of the Geneva Conventions protections were different for Prisoners of War than they were for al Qaeda or Taliban detainees. Committee staff interview of Bruce Jessen (November 13, 2007).

74. Email from Bruce Jessen to Col Randy Moulton et a1. (March 18, 2002).

75. Ibid.

76. Ibid.

77. Memo for Col Cooney, Prisoner Handling Recommendations (February 28, 2002), attached to email from Bruce Jessen to Joseph Witsch (March 13, 2002).

78. Email from Bruce Jessen to Joseph Witsch (March 13, 2002). Committee staff interview of Bruce Jessen (November 13, 2007).

79. Memo for Col Cooney, Prisoner Handling Recommendations (February 28, 2002).

80. Memo for Col Cooney, Prisoner Handling Recommendations (February 28, 2002), attached to email from Bruce Jessen to Joseph Witsch (March 13, 2002).

81. COL Herrington had acquired experience in interrogation and debriefing during more than thirty years of military service. Memo from COL Stuart Herrington to MG Michael Dunlavey, Report of Visit and Recommendations (March 22, 2002) at 8.

82. See COL Herrington, Report of Visit and Recommendations; COL Herrington also provided an additional list of "suggestions" for MG Dunlavey and his 12, LTC Ron Buikema. See Memo from COL Stuart Herrington to MG Michael Dunlavey, Suggestions (March 25, 2002)

83. ITF-160 was established at Guantanamo Bay in the mid-1990s to support relief and migrant processing centers for Haitian and Cuban migrants.

84. COL Herrington, Report of Visit and Recommendations at 1-2.

85. Ibid. at 2.

86. Ibid. at 3.

87. Ibid. at 4.

88. COL Herrington also identified additional deficiencies in intelligence collection, which he said could be improved by arming GTMO with the ability to translate and review relevant documents onsite and monitor interrogations using video technology. Ibid.

89. Ibid. at 6.

90. COL Herrington's report also criticized the screening criteria in place, which may have resulted in detainees with less intelligence value being sent to GTMO and those with more valuable detainees being set free. COL Herrington, Report of Visit and Recommendations at 6.

91. COL Mike Fox, JTF-170 Methods and Techniques Info Paper (April 22, 2002).

92. Ibid.

93. Ibid.

94. Email from Dr. Bruce Jessen to Christopher Wirts, Mike Dozier and Randy Moulton (April 16, 2002).

95. Joint Personnel Recovery Agency, Exploitation Draft Plan (undated), attached to email from Bruce Jessen to Col Randy Moulton, Christopher Wirts, and Mike Dozier (April 16, 2002) (hereinafter "JPRA, Exploitation Draft Plan'").

96. Ibid.

97. [Big delete]

98. Ibid

99. Ibid.

100. Ibid.

101. Ibid.

102. Ibid.

103 The plan also described requirements for the management of the facility identical to those included in the "Prisoner Handling Recommendations" previously prepared by JPRA for SOUTHCOM. Ibid.; Memo for Col Cooney, Prisoner Handling Recommendations (February 28, 2002).

104. JPRA, Exploitation Draft Plan (emphasis added).

105. The Department of Defense confirmed that the "Exploitation Draft Plan" in the Committee's possession was, in fact, attached to Dr. Jessen's April 16, 2002 email, making it the same document Dr. Jessen referred to as "my initial draft plan."

106. Committee staff interview of Bruce Jessen (July 11, 2007).

107. Committee staff interview of Bruce Jessen (November 13, 2007).

108. Email from Col Randy Moulton to Bruce Jessen, Christopher Wirts, Mike Dozier (April 17, 2002).

109. The Authorization of Survival Evasion Resistance and Escape (SERE) Techniques for Interrogations in Iraq: Part II of the Committee's Inquiry Into the Treatment of Detainees in U.S. Custody, Senate Committee on Armed Services, 110th Cong. (September 25, 2008) (hereinafter "SASC Hearing (September 25, 2008)").
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Sun Oct 13, 2013 5:18 am

PART 6 OF 27 (Inquiry Into the Treatment of Detainees in U.S. Custody)

II. Development of New Interrogation Authorities (U)

A. CIA's Interrogation Program and the Interrogation of Abu Zubaydah (U)


(U) Abu Zubaydah was captured by Pakistani and CIA forces on March 28, 2002. According to former CIA Director George Tenet, once Zubaydah was in custody, the CIA "got into holding and interrogating high-value detainees" (HVDs) "in a serious way." [110] Then-National Security Advisor Condoleezza Rice said that "in the spring of 2002, CIA sought policy approval from the National Security Council to begin an interrogation program for high-level al-Qaida terrorists." [111] Then-NSC Legal Advisor John Bellinger said that he asked CIA to have the proposed program reviewed by the Department of Justice and that he asked CIA to seek advice not only from DoJ's Office of Legal Counsel (OLC) but also from the Criminal Division. [112] Ms. Rice said that she asked Director of Central Intelligence George Tenet to brief NSC Principals on the proposed CIA program and asked Attorney General Ashcroft "personally to review the legality of the proposed program. [113] She said that all of the meetings she attended on the CIA's interrogation program took place at the White House and that she understood that DoJ's legal advice "was being coordinated by Counsel to the President Alberto Gonzales." [114]

(U) According to President Bush, the agency developed an "alternative set" of "tough" interrogation techniques, and put them to use on Zubaydah and other HVDs. [115] Though virtually all of the techniques that were used on Zubaydah remain classified, CIA Director Michael Hayden confirmed that waterboarding was used on Zubaydah. [116] Assistant Attorney General for the Office of Legal Counsel (OLC) Steven Bradbury testified before Congress that the "CIA's use of the waterboarding procedure was adapted from the SERE training program." [117] When asked whether she was present for discussions about physical and/or psychological pressures used in SERE training, Secretary Rice recalled "being told that U.S. military personnel were subjected in training to certain physical and psychological interrogation techniques." [118] Mr. Bellinger, the NSC Legal Advisor, stated that he was "present in meetings at which SERE training was discussed." [119]

(U) Public reports have identified a retired U.S. Air Force SERE psychologist, Dr. James Mitchell, as having participated in the CIA's interrogation of Zubaydah. [120] Dr. Mitchell, who retired from the Air Force in 2001, agreed to speak to the Committee about his time at DoD.

[Big delete]

[Big delete]

(U) An unclassified version of a May 2008 report by the Department of Justice (DoJ) Inspector General (IG) confirmed that FBI agents "initially took the lead in interviewing Zubaydah at the CIA facility," but that "CIA personnel assumed control over the interviews" when they arrived at the facility. [125]

[Big delete]

[Big delete]

[Big delete]

(U) The FBI Special Agent told the DoJ Inspector General that he also "raised objections to these techniques to the CIA and told the CIA it was 'borderline torture." [130] According to the unclassified DoJ Inspector General's report, a second FBI agent present did not have a "'moral objection'" to the techniques and noted that he had "undergone comparable harsh interrogation techniques as part of the U.S. Army Survival, Evasion, Resistance and Escape (SERE) training." [131]

[Big delete]

(U) According to the DoJ Inspector General's report, FBI Counterterrorism Assistant Director Pat D' Amuro gave the instruction to both FBI agents to "come home and not participate in the CIA interrogation." The first FBI Special Agent left immediately, but the other FBI agent remained until early June 2002. [133] The report said that around the time of Zubaydah's interrogation, FBI Director Robert Mueller decided that FBI agents would not participate in interrogations involving techniques the FBI did not normally use in the United States, even though the OLC had determined such techniques were legal. [134] Then-National Security Advisor Condoleezza Rice said that she had a "general recollection that FBI had decided not to participate in the CIA interrogations" but "was not aware that FBI personnel objected to interrogation techniques used or proposed for use with Abu Zubaydah." [135]

B. JPRA Assistance to Another Government Agency (U)

[delete] [delete] As [delete] interrogation of Abu Zubaydah was ongoing, [big delete]. The Chief of JPRA's Operational Support Office (OSO), Christopher Wirts, told the Committee that he had five or fewer meetings with [delete] [delete] where they discussed [delete] interrogations. [136]

[delete] [delete] At some point in the first six months of 2002, JPRA assisted with the preparation of a [delete] sent to interrogate a high level al Qaeda operative. [137] In a June 20, 2002 memo to JPRA's Commander Randy Moulton, JPRA's Deputy Commander Col John Prior, characterized the assistance as ''training'' and noted that the psychologist had suggested "exploitation strategies" to [delete] officer. [138]

[delete] [delete] Dr. Bruce Jessen JPRA's senior SERE psychologist, told the Committee that he had met with a [delete] who was en route to an interrogation. [139] He said he may have offered the [big delete] but that he did not discuss [big delete].

[delete] [delete] JPRA also conducted training and pre-mission preparation for a group of [delete] officers. [140] On June 17, 2002, [delete] sent a request to the Joint Staff seeking DoD approval for the two-day JPRA training. [141] That request was drafted by an [big delete] and Mr. Wirts, JPRA's OSO Chief. [142] DoD General Counsel Jim Haynes told the Committee that he had been made aware of a [delete] request for JPRA training at least as early as late summer 2002. [143]

[delete] request asked that JPRA provide training [delete] on topics such as [delete] "deprivation techniques," "exploitation and questioning techniques," and "developing countermeasures to resistance techniques." [144] The training was intended to "prepare [delete] officers for rotations in Afghanistan and elsewhere." [145]

[delete] In response to that request, JPRA Deputy Commander Col John Prior recommended to the JPRA Commander:

Because of the urgent need to extract information from captured al Qaeda operatives, and because JPRA has the sole repository of the required skill set JPRA personnel should provide this expertise and training to [delete].

To prevent compromise and inadvertent modification of JPRA's charter, personnel will avoid linking JPRA directly to this training.

. . . Having the true exploitation and captivity environment experts and specialists, JPRA may be called upon in extremis to actually participate in future exploitation of foreign prisoners; this request would clearly fall outside JPRA's chartered responsibilities; if this request is made, JPRA would require a SecDef policy determination ... [146]


[delete] Col Prior's memo stated that the JFCOM J-3 or his office had been apprised of [delete] support requests. [147] A Joint Staff Action Processing Form indicated that [delete] request was endorsed by JPRA, JFCOM, Joint Staff, and the Office of the Undersecretary of Defense for Policy and approved on June 27, 2002. [148]

[delete] In advance of the training, JPRA developed a two day lesson for [delete] [delete] the "full spectrum [of] exploitation," including both explanations and demonstrations of physical pressures that were approved for use at JPRA's SERE school. [149] At the time, JPRA-approved techniques included body slaps, face slaps, hooding, stress positions, walling, immersion in water, stripping, isolation, and sleep deprivation, among others. [150]

[delete] The two day training took place at [delete] headquarters on July 1-2, 2002. [151] According to a July 16, 2002 after action memo prepared for Col Moulton, the training covered [Big delete]. [152] Time was also set aside for [delete] who had recently been conducting interrogations in Afghanistan to discuss their experiences. Other time was spent covering the physical and psychological pressures used at SERE school. Dr. Gary Percival, a JPRA instructor at the training, said that in their demonstration of physical pressures, JPRA instructor Joseph Witsch acted as the "beater" while he was the "beatee." [53]

[delete] In addition to explaining and demonstrating the physical pressures used at SERE school, the JPRA personnel also provided instruction on waterboarding. [154]

(D) At the time, waterboarding was only used by the U.S. Navy SERE school and its use was prohibited at the JPRA, Army, and Air Force SERE schools. [155] The U.S. Navy has since abandoned its waterboarding at its SERE schools. None of the JPRA personnel who provided the assistance had ever conducted waterboarding and would not have been qualified to do so at SERE school. [156]

[delete] [delete] The July 16, 2002 after action memo stated that two agency legal personnel were also present for the training. [157] According to the memo, [delete] personnel "requested and were granted time to present the legal limits of physiological and psychological pressures that were acceptable at the present time." [158] The after action memo described the legal briefing:

Their 30-40 [minute] brief was very supportive. Basically, [delete] were told they could use all forms of psychological pressure discussed and all of the physiological pressures with the exception of the 'water board.' They were advised that should they feel the need to use the water board, they would need prior approval. They were also briefed on the ramifications for participating in torture, which under international law is defined as a 'capital crime' and could result in a death sentence if convicted. An eye opener to say the least. [159]


[delete] The JPRA instructors who conducted the training did not recall [delete] lawyers providing any further guidance about how to seek approval for use of the waterboard in an interrogation. [160]

(D) However, Chief Counsel to the [delete] Jonathan Fredman later described an approval process for the use of aggressive interrogation techniques reportedly explaining that "[t]he CIA makes the call internally on most of the types of techniques," but that "[s]ignificantly harsh techniques are approved through the DOJ." [161]

[delete] In his after action memo from [delete] training, JPRA instructor Joseph Witsch stated that ''the training seemed well received and beneficial for the majority of the personnel present." [162] He observed that some of the class participants had "little to no[ ] experience" in interrogation and others had "recently returned from conducting actual interrogations in Afghanistan." [163]

[Delete] [delete] In his memo, Mr. Witsch also commented on JPRA's future support to interrogations, writing:

I believe our niche lies in the fact that we can provide the ability to exploit personnel based on how our enemies have done this type of thing over the last five decades. Our enemies have had limited success with this methodology due to the extreme dedication of [American] personnel and their harsh and mismanaged application of technique. The potential exists that we could refine the process to achieve effective manipulation / exploitation. We must have a process that goes beyond the old paradigm of military interrogation for tactical information or criminal investigation for legal proceedings. These methods are far too limited in scope to deal with the new war on global terrorism." [164]


[delete] Mr. Witsch recommended that JPRA develop two courses for future JPRA customers - a basic course and an advanced course to deal with "senior, hardcore, and resistance trained detainees." [165] The courses, he said, will need "immediate attention and will require a total role reversal from current methodology and our standard approaches to training. It will take a cross section of SERE experienced personnel -- SERE instructors, psychologists, MDs and intelligence personnel to effectively develop this new approach to captive handling and manipulation." [166]

C. Senior SERE Psychologist Detailed From Department of Defense to Other Government Agency (U)

[delete] In July 2002, after the JPRA training for [delete] the senior SERE psychologist, Dr. Bruce Jessen was detailed to [delete] for several days. [167] At the conclusion of this assignment, Dr. Jessen retired from the Department of Defense and began working as an independent contractor to [delete]. [168]

[Big delete]

(U) Dr. Jessen did tell the Committee that, in some circumstances, physically coercive techniques are appropriate for use in detainee interrogations. He said that the use of physically coercive techniques may be appropriate when (1) there is good reason to believe that the individual has perishable intelligence, (2) the techniques are lawful and authorized, (3) they are carefully controlled with medical and psychological oversight, (4) someone (who is not otherwise involved in the interrogation) can stop the use of the techniques, and (5) the techniques do not cause long-term physical or psychological harm. [170] Dr. Jessen acknowledged that empirically, it is not possible to know the effect of a technique used on a detainee in the long-term, unless you study the effects in the long-term. However, he said that his conclusion about the long-term effects of physically coercive techniques was based on forty years of their use at SERE school. [171]

(U) Subsequent to his retirement from DoD, Dr. Jessen joined Dr. Mitchell and other former JPRA officials to form a company called Mitchell Jessen & Associates. Mitchell Jessen & Associates is co-owned by seven individuals, six of whom either worked for JPRA or one of the service SERE schools as employees and/or contractors. [I72] As of July 2007, the company had between 55 and 60 employees, several of whom were former JPRA employees. [173]

D. Department of Defense General Counsel Seeks Information on SERE Techniques From JPRA (U)

(U) Just weeks after the JPRA provided assistance to the OGA, DoD Deputy General Counsel for Intelligence Richard Shiffrin contacted JPRA Chief of Staff Daniel Baumgartner seeking a list of exploitation and interrogation techniques that had been effective against Americans. [174] In testimony to the DoD Inspector General (IG), Mr. Shiffrin stated that he made the request after several conversations with General Counsel Jim Haynes. [175] Mr. Shiffiin later said that everything he asked for from JPRA was to respond to requests from Mr. Haynes. [176] Mr. Haynes testified to the Committee that he could not remember "specifically" asking Mr. Shiffiin for information on SERE techniques, but that he "asked generally" about that subject sometime in the summer of 2002. He also said that he remembered being "interested" in that information, and that if he had requested it, he would have requested it through Mr. Shiffrin. [177] Although Mr. Haynes did not say why he was interested in this information, when asked whether he had discussed "SERE techniques with [] Messrs. Gonzales, Addington, Rizzo, Yoo, or any of the other senior lawyers he met with "regularly," Mr. Haynes testified to the Committee that he "did discuss SERE techniques with other people in the administration." [178]

(U) JPRA Chief of Staff Lt Col Daniel Baumgartner said that when the request from the General Counsel's office came in, he called Col Moulton and Brig Gen Thomas Moore, the JFCOM Director for Operations (13), and received permission to provide the requested information to the General Counsel's office. [179] JPRA initially responded to the General Counsel's inquiry on July 25, 2002 with a memorandum signed by Lt Col Baumgartner. [180]

[Delete] [delete] The JPRA memorandum stated that "JPRA has arguably developed into the DoD's experts on exploitation." It continued:

Recognizing the typical training for strategic debriefers in the intelligence community did not include either SERE training (as a student) or grounding in exploitation strategy and associated interrogation techniques, JPRA offered assistance to intelligence organizations charged with interviewing enemy detainees. JPRA [Big delete] will brief the Criminal Investigative Task Force (CITF) next Tuesday to determine their requirements. [181]


(U) JPRA attached several lesson plans on exploitation and interrogation to the memo. [182] In closing, the memo stated:

The enclosed documents provide a thorough academic grounding in exploitation and were built on what has been effective against Americans in the past. The ability to exploit, however, is a highly specialized skill set built on training and experience. JPRA will continue to offer exploitation assistance to those governmental organizations charged with the mission of gleaning intelligence from enemy detainees. [183]


(U) The memorandum and its attachments were delivered to the Deputy General Counsel Richard Shiffrin by a JPRA employee and were emailed to relevant personnel at both JPRA and Brig Gen Moore's office at JFCOM. [I84] DoD General Counsel Jim Haynes did not recall whether or not he saw the memo at the time, but said that "in all likelihood," he would have received the memo, and that the timing of the memo coincided with his recollection of his meeting with JPRA personnel. [185]

(U) According to Lt Col Baumgartner, prior to the July 25, 2002 memo being delivered to the General Counsel's office, Mr. Shiffrin called him to ask for additional information, including a list of techniques used by JPRA at SERE school. Mr. Shiffrin testified to the Committee that he was ''under pressure" from Mr. Haynes to get the material to his office as quickly as possible. [186]

(U) Lt Col Baumgartner said that he thought the General Counsel's office was asking for information on exploitation and physical pressures to use them in interrogations. Mr. Shiffrin confirmed that one of the purposes for seeking information from JPRA was to "reverse-engineer" the techniques. [187] Lt Col Baumgartner said that he wanted to be helpful, but that he told Mr. Shiffrin that JPRA's techniques were designed to show Americans the worst possible treatment that they may face, and that any recommendation for the use of techniques on detainees would require Administration approval. [188]

(U) On July 26, 2002, JPRA completed a second memorandum with three attachments to respond to the additional questions from the General Counsel's office. The memo stated that "JPRA has arguably developed into the DoD's experts on exploitation and as such, has developed a number of physical pressures to increase the psychological and physical stress on students ..."[189]

[Delete[ delete] In the memo, JPRA informed the General Counsel's office that it had already "assist[ed] in the training of interrogator/exploiters from other governmental agencies charged with OEF exploitation of enemy detainees." [190] The memo also stated:

Within JPRA's evolving curriculum to train interrogators/exploiters many interrogation approaches are taught along with corresponding options for physical pressures to enhance the psychological setting for detainee interrogation. Several of the techniques highlighted (Atch 1) as training tools in JPRA courses, used by other SERE schools, and used historically may be very effective in inducing learned helplessness and 'breaking' the OEF detainees' will to resist." [191]


[Delete] The first attachment to the July 26, 2002 memo was "Physical Pressures used in Resistance Training and Against American Prisoners and Detainees." [192] That attachment included a list of techniques used to train students at SERE school to resist interrogation. The list included techniques such as the facial slap, walling, the abdomen slap, use of water, the attention grasp, and stress positions. [193] The first attachment also listed techniques used by some of the service SERE schools, such as use of smoke, shaking and manhandling, cramped confinement, immersion in water or wetting down, and waterboarding.

[Delete] JPRA's description of the waterboarding technique provided in that first attachment was inconsistent in key respects from the U.S. Navy SERE school's description of waterboarding. According to the Navy SERE school's operating instructions, for example, while administering the technique, the Navy limited the amount of water poured on a student's face to two pints. However, the JPRA attachment said that "up to 1.5 gallons of water" may be poured onto a "subject's face." While the Navy's operating instructions dictated that "[n]o effort will be made to direct the stream of water into the student's nostrils or mouth," the description provided by JPRA contained no such limitation for subjects of the technique. While the Navy limited the use of the cloth on a student's face to twenty seconds, the JPRA's description said only that the cloth should remain in place for a "short period of time." And while the Navy restricted anyone from placing pressure on the chest or stomach during the administration of this technique, JPRA's description included no such limitation for subjects of the technique. [194]

[Delete] Attachment one also listed tactics derived from JPRA SERE school lesson plans that were designed to "induce control, dependency, complia[n]ce, and cooperation," including isolation or solitary confinement, induced physical weakness and exhaustion, degradation, conditioning, sensory deprivation, sensory overload, disruption of sleep and biorhythms, and manipulation of diet. [195]

(U) DoD General Counsel Jim Haynes told the Committee that although he could not recall if he had seen the specific list of SERE physical pressures sent to his office on July 26, 2002, he knew that he had seen a list of physical pressures used in JPRA resistance training. [196]

[Delete] Mr. Haynes also recalled that he may have been "asked that information be given to the Justice Department for something they were working on," which he said related to a program he was not free to discuss with the Committee, even in a classified setting. [197]

(U) A second attachment to the July 26, 2002 JPRA memo to the General Counsel's office was entitled "Operational Issues Pertaining to the use of Physical/Psychological Coercion in Interrogation." [198] In attachment two, JPRA stated that the memo did not purport to address the "myriad legal, ethical, or moral implications of torture; rather, [the memo focused on] the key operational considerations relative to the use of physical and psychological pressures."[199]

(U) Attachment two described operational risks associated with using "physical and/or psychological duress" (a phrase that JPRA used interchangeably with ''torture'' throughout most of attachment two) in interrogations. [200] The attachment said that one risk was that the use of these methods would increase the "prisoner's level of resolve to resist cooperating." [201] JPRA explained that "[O]nce any means of duress has been purposefully applied to the prisoner, the formerly cooperative relationship cannot be reestablished. In addition, the prisoner's level of resolve to resist cooperating with the interrogator will likely be increased as a result of harsh or brutal treatment." [202]

(U) According to attachment two, another risk to using techniques that increase physical and psychological duress was that it created doubts about the reliability and accuracy of information obtained. [203] JPRA explained in attachment two that "[i]f an interrogator produces information that resulted from the application of physical and psychological duress, the reliability and accuracy of this information is in doubt. In other words, a subject in extreme pain may provide an answer, any answer, or many answers in order to get the pain to stop." [204]

(U) A third operational risk was the potential impact that the physical and psychological duress could have on treatment of US. personnel. [205] JPRA explained in attachment two that:

Another important aspect of the debate over the use of torture is the consideration of its potential impact on the safety of U.S. personnel captured by current and future adversaries. The unintended consequence of a U.S. policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured U.S. personnel. While this would have little impact on those regimes or organizations that already employ torture as a standard means of operating, it could serve as the critical impetus for those that are currently weighing the potential gains and risks associated with the torture of U.S. persons to accept torture as an acceptable option. [206]


(U) The third attachment to JPRA's July 26, 2002 memo was a memo from the Chief of Psychology Services at the Air Force SERE school, Jerald Ogrisseg, on the "Psychological Effects of Resistance Training." [207] That memorandum, which was generated in response to a specific request from the General Counsel's office, described available evidence on the long-term psychological effects of Air Force SERE training on U.S. personnel and commented from a psychological perspective on the effects of using the waterboard.

(U) JPRA Chief of Staff Daniel Baumgartner said that when the General Counsel's office requested a memo on the psychological effects of resistance training, he called Dr. Ogrisseg at the Department of the Air Force's Air Education and Training Command. [208] Dr. Ogrisseg said that Lt Col Baumgartner asked his opinion during the phone call about his thoughts on waterboarding the enemy. [209] Dr. Ogrisseg recalled asking, "wouldn't that be illegal?" [210] According to Dr. Ogrisseg, Lt Col Baumgartner replied that people were asking "from above" about using waterboarding in real world interrogations. [211] Dr. Ogrisseg recalled telling Lt Col Baumgartner, "aside from being illegal, it was a completely different arena that we in the Survival School didn't know anything about." [212]

(U) Subsequent to that call, Dr. Ogrisseg reviewed the data on the effects of Air Force SERE resistance training on students and produced his memo, concluding that "if there are any long-term psychological effects of [U.S. Air Force Resistance Training], they are certainly minimal." [213] The memo attributed this conclusion to efforts the Air Force SERE program undertook to minimize the risk of temporary psychological effects of resistance training becoming long- term effects. [214] The Air Force minimized the risk by, among other things, performing three extensive debriefings during training. Dr. Ogrisseg said that "affording students these opportunities to discuss their training experiences in open group environments mitigates the risk of turning a 'dramatic' experience into a 'traumatic' experience." [215] He told the Committee that there are numerous controls in place at SERE school to ensure that the training does not become "traumatic" for its students. [216]

(U) Dr. Ogrisseg said that Lt Col Baumgartner also asked him "to comment on both the physical and psychological effects of the waterboard," which he described in his memo as an "intense physical and psychological stressor" used at the U.S. Navy SERE school. [217] Although Dr. Ogrisseg had not used the waterboard himself, he had observed its use in a visit to the Navy SERE School. He stated that, based on that visit, he did not believe that the ''water[] board posed a real and serious physical danger to the students" who experienced it at the SERE school, stating that the "Navy had highly qualified medical personnel immediately available to intervene, and their students had all been medically screened prior to training. Psychologically, however, the water[] board broke the students' will to resist providing information and induced helplessness." [218]

(U) Dr. Ogrisseg said that he was surprised when he found out later that Lt Col Baumgartner had forwarded his memo to the General Counsel's office along with a list of the physical and psychological techniques used in SERE school. [219] Dr. Ogrisseg said that his analysis was produced with students in mind, not detainees. He stated that the conclusions in his memo were not applicable to the offensive use of SERE techniques against real world detainees and he would not stand by the conclusions in his memo if they were applied to the use of SERE resistance training techniques on detainees.

(U) In a written response to a question posed by Senator Carl Levin after the Committee's June 17, 2008 hearing, Dr. Ogrisseg elaborated on that point noting several "important differences between SERE school and real world interrogations that would limit [the] conclusions [in his memo] to the SERE school training population." [220] Among those differences Dr. Ogrisseg identified were (1) the extensive physical and psychological pre-screening processes for SERE school students that are not feasible for detainees, (2) the variance in injuries between a SERE school student who enters training and a detainee who arrives at an interrogation facility after capture, (3) the limited risk of SERE instructors mistreating their own personnel, especially with extensive oversight mechanisms in place, compared to the risk of interrogators mistreating non-country personnel, (4) the voluntary nature of SERE training, which can be terminated by a student at any time, compared to the involuntary nature of being a detainee, (6) the limited duration of SERE training, which has a known starting and ending point, compared to the often lengthy, and unknown, period of detention for a detainee, and (7) the underlying goals of SERE school (to help students learn from and benefit from their training) and the mechanisms in place to ensure that students reach those goals compared to the goal of interrogation (to elicit information).

(U) In addition, Dr. Ogrisseg also stated that, since writing his memo in July 2002, he had reviewed studies about the effects of near death experiences, and that he had become concerned about the use of waterboarding even as a training tool. [221] The U.S. Navy SERE school abandoned its use of the waterboard in November 2007.

(U) Lt Col Baumgartner testified to the Committee that, subsequent to sending his two memos and their attachments - including the list of SERE techniques - to the General Counsel's office, another government agency asked for the same information. Lt Col Baumgartner said that he provided that information to the OGA. [222]

[Delete] In his interview with the Committee, Lt Col Baumgartner said that [delete] personnel had contacted him requesting a copy of the same information that had been sent to the DoD General Counsel. Lt Col Baumgartner recalled speaking to an attorney and a psychologist at [delete] about the request and sending the information to the [delete]. [223]

E. The Department of Justice Changes the Rules (U)

(U) On August 1, 2002, less than a week after JPRA sent the DoD General Counsel's Office its memoranda and attachments, the Department of Justice issued two legal opinions signed by then-Assistant Attorney General for the Office of Legal Counsel (OLC) Jay Bybee.

(U) Before drafting the August 1, 2002 opinions, Deputy Assistant Attorney General for the OLC John Yoo had met with Counsel to the President Alberto Gonzales and Counsel to the Vice-President David Addington to discuss the subjects that he intended to address. [224] Then-National Security Advisor Condoleezza Rice said that she understood that the Department of Justice's legal advice to the CIA "was being coordinated by Counsel to the President Alberto Gonzales." [225]

(U) The first of the two August 1, 2002 OLC memoranda, known to many as the "First Bybee" memo, presented OLC's narrow interpretation of what constituted torture under U.S. law. The memo stated that the federal anti-torture statute of 1994 prohibited "only extreme acts" and that in order to constitute torture, physical pain would have to be equivalent in intensity to that accompanying "serious physical injury, such as organ failure, impairment of bodily functions or even death." [226] For mental pain to rise to the level of torture, according to the memo, it would have to result in "significant psychological harm of significant duration, e.g., lasting for months or even years." [227] The First Bybee memo also found that the federal anti-torture statute may not be applicable to interrogations ordered by the President if he acted pursuant to his Constitutional commander-in-chief powers. Further, the memo argued that even if the federal anti-torture statute could be construed to apply to such interrogations, the defenses of necessity and self-defense could potentially eliminate criminal liability under the statute. [228]

(U) The First Bybee memo also effectively dispensed with the "specific intent" requirement of the federal anti-torture statute by narrowly defining that requirement. The federal anti-torture statute states that, in order to constitute torture, an act must be "specifically intended to inflict severe physical or mental pain or suffering." [229] The First Bybee memo stated that in order "for a defendant to have acted with specific intent, he must expressly intend to achieve the forbidden act." [230] Under that interpretation, to violate the law, a person must expressly intend to commit torture and the memo stated that "knowledge alone that a particular result is certain to occur does not constitute specific intent."

(U) Jack Goldsmith, who succeeded Jay Bybee as Assistant Attorney General of the OLC in 2003, described the First Bybee memo's conclusions and their effect:

[V]iolent acts aren't necessarily torture; if you do torture, you probably have a defense; and even if you don't have a defense, the torture law doesn't apply if you act under color of presidential authority. CIA interrogators and their supervisors, under pressure to get information about the next attack, viewed the opinion as a 'golden shield,' as one CIA official later called it, that provided enormous comfort. [231]


(U) The second August 1, 2002 OLC legal opinion was also signed by Assistant Attorney General Jay Bybee. [232] According to a declaration made to the United States District Court for the Southern District of New York by the Information Review Officer for the CIA, the so-called "Second Bybee" memo is an 18-page legal memorandum from the OLC to the Office of General Counsel of the CIA containing "information relating to the CIA's terrorist detention and interrogation program" and 'advice to' the CIA regarding potential interrogation methods." [233] According to the filing, the CIA requested the legal guidance from the Department of Justice. [234] A February 1, 2005 letter from the Justice Department to Senator Arlen Specter, then-Chairman of the Senate Judiciary Committee, stated that the Second Bybee memo gave the CIA "specific advice concerning specific interrogation practices, concluding that they are lawful." [235] And the unclassified report of the Department of Justice Inspector General explained that the opinion analyzed "specific techniques approved for use on Zubaydah includ[ing] waterboarding ..." [236]

[Big delete] [237] John Bellinger, the NSC Legal Advisor, said that he "expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations. [238]

(U) The Committee has been denied the Second Bybee memo and does not know which specific interrogation practices, other than waterboarding, were analyzed in the memo. A heavily redacted version of the Second Bybee memo, released on July 24, 2008, provides no further details about the specific interrogation practices that were analyzed by the OLC. [239] The unredacted sections only make clear that the OLC applied its analysis in the First Bybee memo to a set of (redacted) facts at issue in the Second Bybee memo. [240] And while public sources have suggested that the OLC's analysis applied to Zubaydah, then-Deputy Assistant Attorney General John Yoo suggested in recent testimony that it "perhaps" applied to others "similarly situated." [241]

(U) According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was "the vehicle" for getting the interrogation practices analyzed in the Second Bybee memo to the Department of Justice." [242]

[Delete] Lt Col Baumgartner, the JPRA Chief of Staff, recalled sending a copy of the same information that he had sent to the DoD General Counsel - including the list of SERE techniques and Dr. Ogrisseg's memo on the psychological effects of Air Force SERE training and on waterboarding - to [delete] attorney. [243] Mr. Haynes, the DoD General Counsel, recalled that in the context of reviewing the list of SERE techniques provided to his office, that he may have been "asked that information be given to the Justice Department for something they were working on." [244]

(U) With respect to the issues addressed in Dr. Ogrisseg's memo relating to the psychological effects of resistance training, Mr. Haynes said that he knew that there was a government interest in that subject, but that he did not know if that information was used as support in any OLC legal analysis, and if he did know, he did not recall. [245]

(U) Then-NSC Legal Advisor John Bellinger said that some of the legal analysis of proposed interrogation techniques prepared by the Department of Justice referred to ''the psychological effects of military resistance training." [246] In fact, Jay Bybee, the Assistant Attorney General who signed the two August 1, 2002 opinions, said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said the assessment - which to the best of his recollection had been provided by the CIA - informed the August 1, 2002 OLC legal opinion that has not been released publicly. [247] In his June 26, 2008 testimony before the House Judiciary Committee, John Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the August 1, 2002 memos were being drafted. [248]

(U) While Judge Bybee said that he did not recall "any written advice provided to any governmental agency prior to August 1, 2002, on the meaning of the standards of conduct required for interrogation under the federal anti-torture statute or on specific interrogation methods," the August 1, 2002 memos were not the only occasion on which DOJ provided legal advice on the CIA's interrogation program. [249] John Bellinger, the NSC Legal Advisor, said that he understood that in 2002 and 2003, the OLC provided "ongoing advice to CIA regarding CIA's interrogation program." [250] And then-National Security Advisor Condoleezza Rice said that she was present at "several" meetings in the White House at which Mr. Yoo provided legal advice. [251] Ms. Rice said that she asked Attorney General John Ashcroft "personally to review and confirm" DoJ's legal guidance. [252]

F. JPRA's Special Program In Support of [delete] (U)

1. August 2002 Training Proposal (U)


[Delete] [delete] On August 12, 2002, a week and a half after the OLC issued its two legal opinions, the [delete] sent JPRA Chief of Staff Lt Col Baumgartner and JPRA OSO Chief Christopher Wirts a draft memorandum outlining the [delete] request for additional JPRA training support. [253] [Big delete] [254] The draft requirement continued:

[I]nformation that your organization has already provided, coupled with our officers' experience confirms our opinion that JPRA assets are more than capable of providing the necessary training that we need to start our initiatives. Basically, [Big delete] consisting of academic training and practical exercises aimed at learning both interrogation and resistance to interrogation techniques. [255]


[delete] [delete] [delete] draft described four areas of "training [sought] from JPRA:" (1) "Academic Training," including "legal perspectives," [big delete] (2) "Resistance Training," including academic lessons in interrogation and resistance to interrogation techniques, such as psychological or physiological pressures; (3) "Practice Interrogations/Resistance to [] Interrogations/[F]eedback," including practice on "[p]hysical pressures techniques and training"; and (4) "Review and Training of Resistance Training Operating Instructions." [256]

[Big delete]

[Big delete]

[Big delete]

(U) The Operating Instruction used to implement DOD directive 1300.7 are those instructions that JPRA uses to implement its SERE-school training program.

2. JPRA Creates Project 22B (U)

[Delete] [delete] Also on August 12, 2002, a meeting was held at JPRA headquarters "to discuss future JPRA support to [delete] actions to obtain actionable intelligence from Detained Unlawful Combatants." [266] A memo from JPRA's Co Col Randy Moulton describing that meeting reported that the JPRA training performed [delete] to date had been well-received and that "information and training that JPRA has provided [delete] coupled with feedback from the [delete] confirmed that JPRA assets are more than capable of providing the necessary training necessary to support their initiative." [267] [Big delete]

[Delete] [delete] Col Moulton directed his team to develop a Concept of Operations (CONOP) for continued support, stating that the JPRA CONOP would be staffed through the Joint Staff and Office of the Secretary of Defense "to ensure proper oversight and approval prior to execution of the plan." [269] A draft of that CONOP, circulated later in the year, described how JPRA planned to fulfill [delete] requirement for training, including how they would facilitate the practice interrogation sessions - i.e., with JPRA members "portray[ing] resisters of different skill levels" and [delete] interrogators "demonstrat[ing] the ability to use exploitation methods and concepts taught ... as well as us[ing] authorized physical pressures." [270] Among the risks described in that CONOP was "injury [to JPRA personnel] as a result of physical pressures administered by [delete] during the training." [271]

(U) At the August 12, 2002 meeting, JPRA created a special program which it called Project 22B, to "limit JPRA distribution of sensitive activities in support of [delete]." [272]

[Delete] In his memo, Col Moulton wrote that protecting information associated with these activities was "of paramount concern" to [delete] and noted that [delete] anticipates a congressional investigation into this activity at some time in the future." [273]
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Sun Oct 13, 2013 9:08 am

PART 7 OF 27 (Inquiry Into the Treatment of Detainees in U.S. Custody)

Notes:

110. George Tenet, At The Center Of The Storm (New York: Harper Collins Publishers 2007) at 241.

111. Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008).

112. John Bellinger answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008).

113. Secretary Rice said that in 2002-2003, she "participated in a number of discussions of specific interrogation techniques proposed for use by the CIA" Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008).

114. Ibid.

115. In a September 6, 2006 speech, President Bush stated that since September 11, 2001, a "small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency." The President stated that the CIA used "an alternative set of procedures" in interrogating the detainees. According to the President, the CIA techniques "were tough, and they were safe, and lawful, and necessary." The President identified Abu Zubaydah as one detainee who was subject to the CIA's alternative techniques. Press Briefing with President George W. Bush (September 6, 2006); see also Tenet, At The Center Of The Storm at 241.

116. Current and Projected National Security Threats, Senate Select Committee on Intelligence, 110th Cong. (February 5, 2008).

117. Justice Department's Office of Legal Counsel, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (February 14, 2008).

118. Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008).

119. John Bellinger answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008).

120. Jane Mayer, The Experiment, The New Yorker (July 11-18, 2005); Jane Mayer, The Black Sites, The New Yorker (August 13, 2007) ("According to an eyewitness, one psychologist advising on the treatment of Zubaydah, James Mitchell, argued that he needed to be reduced to a state of 'learned helplessness.' (Mitchell disputes this characterization)."); Katherine Eban. Rorschach and Awe, Vanity Fair Online (July 17, 2007), available at http://www.vanityfair.com/politics/feat ... ture200707.

121. Committee staff interview of James Mitchell (July 10, 2007); Letter to Senator Carl Levin (June 22, 2007).

122. Committee staff interview of FBI Special Agent (December 21, 2007).

123. Ibid.

124. Ibid.

125. DoJ IG Report at 68.

126. Committee staff interview of James Mitchell (July 10, 2007); Committee staff interview of FBI Special Agent (December 21, 2007).

127. Committee staff interview of FBI Special Agent (December 21, 2007).

128. Ibid.

129. [Big delete]

130. U.S. Department of Justice, Office of the Inspector General, A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq (May 2008) at 68 (hereinafter "DoJ IG Report'').

131. Ibid. at 69.

132. Committee staff interview of FBI Special Agent (December 21, 2007).

133. DoJ IG Report at 69; see also CounterResistance Strategy Meeting Minutes at 4. (Months later, in an October 2, 2002 meeting with DoD officials at Guantanamo Bay, Chief Counsel to the CIA's CounterTerrorist Center (CTC) reportedly Jonathan Fredman confirmed that "[w]hen the CIA has wanted to use more aggressive techniques in the past, the FBI has pulled their personnel from theater.")

134. DoJ IG Report at 73.

135. Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008).

136. Committee staff interview of Christophe (January 4, 2007); see also JPRA/OSO, [delete] Concept of Operations for JPRA support to anticipated [delete] requirements (October 3, 2002). The memo states, [delete] has made informal requests for JPRA support to prepare [delete] to use exploitation/interrogation techniques ... Five separate meetings have been conducted between [delete] and JPRA representatives..."

137. [delete] Memo from Col John Prior II to JPRNCC (Col Randy Moulton), Request from [delete] for Interrogation Training Support (June 20, 2002).

138. lbid.

139. [delete] Initially, the senior SERE psychologist could not recall if he provided this assistance to the [delete] while he was still working at JPRA or if the assistance had occurred after he left JPRA. After he left JPRA in 2002, the senior SERE psychologist began working as a contractor to [delete] but was restricted from discussing the nature of his work with the Committee. Committee staff interview of Bruce Jessen (November 13, 2007).

140. [delete] Memo from [delete] Focal Point Branch [delete] to Joint Staff, J-3/DDIO, Special Activities Branch, (U) Request for JPRA Personnel/or Training (June 17, 2002) (hereinafter [delete] Request for JPRA Personnel for Training (June 17, 2002)").

141. [delete] Request for JPRA Personnel/or Training (June 17, 2002).

142. [delete] Fax cover sheet from [delete] to Christopher Wirts (via Colin Junkins) (June 18, 2002).

143. Committee staff interview of William J. Haynes II (April 25, 2008) at 40.

144. [delete] Request for JPRA Personnel or Training (June 17, 2002). In a draft of the request written by JPRA's OSO Chief Christopher Wirts and sent to [delete] on June 14, 2002, Mr. Wirts identified the same topics for training. Mr. Wilts explained to his point of contact at [delete] that their ability to support the request was hindered by Dr. Jessen's availability, who Mr. Wilts described as "critical in providing the degree of support that [delete] is requiring." Memo from Christopher Wirts (via [delete] to [delete] Support to Operation Enduring Freedom (OEF) (June 14, 2002).

145. [delete] Request for JPRA Personnel for Training (June 17, 2002).

146. [delete] Memo from Col John Prior II to JPRA/CC (Col Randy Moulton), Request from [delete] for Interrogation Training Support (June 20, 2002).

147. [delete] Memo from Col John Prior II to JPRA/CC (Col Randy Moulton), Request from [delete] for Interrogation Training Support (June 20, 2002). Although Col John Prior told the Committee that he could not recall the June 20, 2002 memo, JPRA Commander Col Randy Moulton recalled receiving it at the time. Since the Committee's interview of Col Prior, the Department of Defense has provided the Committee with a copy of the memo that was signed by him.

148. [delete] Joint Staff Action Processing Form, (U) JPRA Personnel for Training (June 27, 2002).

149. Testimony of Joseph Witsch (September 4,2 007) at 63-64,69.

150. Ibid. at 64-69.

151. [delete] Memo from Joseph Witsch to Col Randy Moulton and Christopher Wirts, Exploitation Training for [delete] [delete] (July 16, 2002).

152. Ibid.

153. Committee staff interview of Gary Percival (July 25, 2007).

154. Testimony of Joseph Witsch (September 4, 2007) at 69.

155. Memo from Dr. Percival to JPRA CC (Col Moulton), Comments on Physical Pressures used for CoC Training (June 18, 2004).

156. Testimony of Joseph Witsch (September 4, 2007) at 69.

157. [delete] Memo from Joseph Witsch to Col Randy Moulton and Christopher Wirts, Exploitation Training for [delete] [delete] (July 16, 2002).

158. Ibid.

159. Ibid. (emphasis in original).

160. Testimony of Joseph Witsch (September 4, 2007) at 75.

161. Counter Resistance Strategy Meeting Minutes at 4.

162. [delete] Memo from Joseph Witsch to Col Randy Moulton and Christopher Wirts, Exploitation Training for [delete] [delete] (July 16, 2002).

163. Ibid.

164. Ibid.

165. Ibid.

166. Ibid.

167. Committee staff interview of Bruce Jessen (July 11, 2007).

168. Ibid.

169. Ibid.; Letter to Chairman Levin (June 22, 2007).

170. Committee staff interview of Bruce Jessen (November 13, 2007). Lawyers for Dr. Mitchell informed the Committee that he shares the same view as his colleague, Dr. Jessen.

171. Committee staff interview of Bruce Jessen (November 13, 2007).

172. Committee staff interview of James Mitchell (July 10, 2007); Committee staff interview of Bruce Jessen (July 11, 2007).

173. Committee staff interview of James Mitchell (July 10, 2007); Committee staff interview of Christopher Wirts (January 4, 2008).

174. Email from Lt Col Dan Baumgartner to Col Randy Moulton et al. (July 25, 2002).

173. DoD!G, Interview of Richard Shiffrin (July 24, 2006) at 6.

176. Committee staff interview of Richard Shiffrin (May 22, 2007).

177. SASC Hearing (June 17, 2008).

178. Ibid.

179. Committee staff interview of Lt Col Daniel Baumgartner (August 8, 2007); see also email from Col Moulton to [delete] (June 30, 2006) ("We [JPRA] initially received a call from OSD General Counscil (sic) requesting information about resistance techniques used against U.S. POWs. I believe this was early on in Operation Enduring Freedom. We were requested to provide that information within hours and were authorized by JFCOM to forward it to OSD.... Once we understood what OSD/GC was looking for, we provided a list of techniques.")

180. Memo from Lt Col Daniel Baumgartner to Office of the Secretary of Defense General Counsel, Exploitation (July 25, 2002).

181. Ibid. at 1.

182. Ibid. at 2-3.

183. Ibid. at 2; see also email from Lt Col Daniel Baumgartner to Col Randy Moulton et al. (July 25, 2002) (Thanking ''the 'exploitation answer stuckee' team" for "an outstanding job answering [] Mr. Hanes (sic) and Mr. Schiffren (sic) (OSD Dep GC for Intel) on their question 'what exploitation techniques have worked against Americans?")

184. Email from Lt Col Daniel Baumgartner to Col Randy Moulton et al., copying Darrell Venture (JFCOM Directorate of Operations) (July 25, 2002).

185. Committee staff interview of William 1. Haynes II (April 25, 2008) at 51, 59.

186. SASC Hearing (June 17, 2008).

187. Ibid.

188. Committee staff interview of Lt Col Daniel Baumgartner (August 8, 2007).

189. Memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel, Exploitation and Physical Pressures (July 26, 2002) at 1.

190. Ibid.

191. Memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel, Exploitation and Physical Pressures (July 26, 2002) at 1.

192. JPRA, Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees, attached to memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel (July 26, 2002).

193. Ibid.

194. Compare FASO Detachment Brunswick Instruction 3305.C (January 1, 1998) at E-5 with Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees at 3-4.

195. Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees.

196. Committee staff interview of William J. Haynes II (April 25, 2008) at 87.

197. Ibid. at 88.

198. JPRA, Operational Issues Pertaining to the Use of Physical/Psychological Coercion in Interrogation (undated), attached to memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel (July 26, 2002).

199. Ibid.

200. Ibid.

201. Ibid.

202. Ibid.

203. Ibid.

204.. Ibid.

205. Ibid.

206. Ibid.

207. Dr. Jerald Ogrisseg, Psychological Effects of Resistance Training (July 24, 2002), attached to memo from Lt Col Daniel Baumgartner to Office of the Secretary of Defense General Counsel (July 26, 2002) (hereinafter "Psychological Effects of Resistance Training''').

208. Dr. Jerald Ogrisseg, the Chief of Psychology Services at the Department of the Air Force's Air Education and Training Command, told the Committee that he had accepted a position at JPRA prior to writing the memo but had yet to officially change jobs. Committee staff interview of Jerald Ogrisseg (June 26, 2007).

209. SASC Hearing (June 17, 2008).

210. Ibid.

211. Ibid.

212. Ibid.

213. Psychological Effects of Resistance Training

214. Psychological Effects of Resistance Training at 1.

215. Ibid.

216. Committee staff interview of Jerald Ogrisseg (June 26, 2007).

217. SASC Hearing (June 17,2008); Psychological Effects of Resistance Training at 2.

218. [delete] When providing this memo to the General Counsel's office, Lt Col Baumgartner stated: "While there is not much empirical data on the long term effects of physical pressures used in SERE schools (which fall well short of causing 'grave psychological damage'), the psychological staff at the Air Force SERE school makes some interesting observations [] that suggest training techniques can be very effective in producing compliance while not causing any long term damage." Memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel, Exploitation and Physical Pressures (July 26, 2002); Psychological Effects of Resistance Training at 2.

219. Committee staff interview of Jerald Ogrisseg (June 26, 2007).

220. Dr. Ogrisseg also explained that "[w]hile long-term psychological harm can occur from relatively brief distressing experiences, the likelihood of psychological harm is generally increased by more lengthy and uncertain detentions." Responses of Dr. Jerald Ogrisseg to Questions for the Record (July 28, 2008).

221. Committee staff interview of Jerald Ogrisseg (June 26, 2007).

222. SASC Hearing (June 17, 2008).

223. Committee staff interview of Lt Col Daniel Baumgartner (August 8, 2007).

224. According to Mr. Addington, he met "regularly" with a group of lawyers that included DoD General Counsel Jim Haynes, White House Counsel Alberto Gonzales, and the CIA General Counsel John Rizzo. This group that met regularly - which Mr. Addington said was referred to as the "War Council" by Mr. Haynes - also included OLC lawyers John Yoo and Tim Flanigan. According to Mr. Addington, the group of lawyers met about a "range of issues," including interrogation of enemy combatants in the war on terror. When Mr. Haynes was asked whether he had discussed "SERE techniques with [] Messrs. Gonzales, Addington, Rizzo, Yoo, or any of the other senior lawyers" he met with "regularly," Mr. Haynes testified to the Committee that he "did discuss SERE techniques with other people in the administration." These conversations occurred prior to the December 2, 2002 approval of aggressive interrogation techniques, including those derived from SERE, by the Secretary of Defense. See From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (June 26, 2008) (Testimony of David Addington); SASC Hearing (June 17, 2008) (Testimony of William J. Haynes II); The Terror Presidency at 22.

225. Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008).

226. The memo was leaked to the press in June 2004 and was rescinded by the OLC later that month. Memo from Assistant Attorney General Jay Bybee to White House Counsel Alberto Gonzales, Standards o/Conduct/or Interrogation under 18 U.S.C. §§ 2340-2340A (August I, 2002).

227. Ibid.

228. Ibid.

229. 18 U.S.C. § 2340(1) (2008).

230. Memo from Assistant Attorney General Jay Bybee to White House Counsel Alberto Gonzales, Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (August 1, 2002).

231. Former Assistant Attorney General for the OLC Jack Goldsmith, who rescinded the memo, criticized the First Bybee memo as legally flawed, redundant and one-sided, tendentious in tone, unnecessarily narrow in its definition of torture, and widely broader than necessary in its assessment of Presidential authorities. The Terror Presidency at 143-51.

232. The Second Bybee memo has been withheld from the Committee.

233. Sixth Decl. of Marilyn A Dorn, ¶ 56, American Civil Liberties Union, et al. v. Department of Defense, et al, No. 04-Civ. 4151 (January 5, 2007).

234. Sixth Decl. of Marilyn A Dorn, ¶ 62, American Civil Liberties Union, et al. v. Department of Defense, et al, No. 04-Civ. 4151 (January 5, 2007).

235. Letter from Assistant Attorney General William E. Moschella to Chairman of the Senate judiciary Committee Arlen Specter (February 1, 2005); see also The Terror Presidency at 150-151 (According to Jack Goldsmith, the First Bybee memo "analyzed the torture statute in the abstract, untied to any concrete practices" and then the Second Bybee Memo, "applied this abstract analysis to approve particular" interrogation techniques.)

236. DoJ IG Report at 101, fn. 73; see also From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (June 26, 2008) (prepared testimony of John Y00) ("OLC was asked to evaluate the legality of interrogation methods proposed for use with Zubaydah.")

237. DoJ IG Report.

238. John Bellinger answers to July 31,2008 written questions from Senator Carl Levin (September 12, 2008).

239. The remainder of the Second Bybee memo has not been released publicly.

240. Deputy Assistant Attorney General for the OLC John Yoo, who participated in the drafting of the Second Bybee memo, added that in the context of the Zubaydah interrogation, application of the federal anti-torture statute to the facts "depend[ed] not just on the particular interrogation method, but on the subject's physical and mental condition." From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (June 26, 2008).

241. From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (June 26, 2008).

242. Nomination of John Rizzo to be CIA General Counsel, Senate Select Committee on Intelligence, 110th Cong. (June 19, 2007).

243. Committee staff interview of Lt Col Daniel Baumgartner (August 8, 2007).

244. Committee staff interview of William J. Haynes II (April 25, 2008) at 88.

245. Ibid. at 104, 106; see also Redacted version of Memo from Assistant Attorney General Jay Bybee, Interrogation of [redacted] (August 1, 2002) (In the unredacted sections of the Second Bybee memo, the memo states: "Your review of the literature uncovered no empirical data on the use of these procedures, with the exception [redacted].")

246. John Bellinger answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008).

247. Jay Bybee answers to July 31, 2008 written questions from Senator Carl Levin (October 14, 2008).

248. From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III, House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (June 26, 2008).

249. Jay Bybee answers to July 31, 2008 written questions from Senator Carl Levin (October 14, 2008).

250. John Bellinger answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008).

251. Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008).

252. Ibid.

253. [delete] Memo from [delete] to Chief of Staff, JPRA (Lt Col Daniel Baumgartner) and Chief, Mission Support (Christopher Wirts), Request for Training Support (August 12, 2002) (hereinafter [delete] to JPRA, Request for Training Support (August 12, 2002)").

254. Ibid. (emphasis added).

255. Ibid.

256. [delete] to JPRA, Request for Training Support (August 12, 2002). Mr. Wirts said that JPRA did not have the expertise to teach "legal perspectives" and in his discussions with [delete] about the training, [delete] indicated that JPRA would not be expected to teach that topic. Committee staff interview of Christopher Wirts (January 4, 2008).

257. [delete] to JPRA, Request for Training Support (August 12, 2002).

258. Ibid.

259. Ibid.

260. Ibid.

261. Ibid.

262. Ibid.

263. Ibid.

264. Ibid. (emphasis in original).

265. Ibid.

266. Memo from JPRA/CC (Col Randy Moulton) to JPRA J3/J7/PRA, [delete] Support to [delete]/Project 22B (August 13, 2002) at 1.

267. Ibid.

268. Ibid.

269. Ibid.

270. Memo from JPRA OSO, [delete] Concept of Operations for JPRA support to anticipated. requirements (October 3, 2002).
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Sun Oct 13, 2013 9:10 am

PART 8 OF 27 (Inquiry Into the Treatment of Detainees in U.S. Custody)

III. Guantanarno Bay as a "Battle Lab" for New Interrogation Techniques (U)

[Big delete] JPRA was also developing a plan to support Department of Defense interrogation operations at Guantanamo Bay (GTMO). In the summer of 2002, following a request from the Army's Special Operations Command (USASOC) to develop a training regimen for GTMO interrogation personnel, JPRA modified the training plan it had developed for [delete] [delete] to produce a plan to train the GTMO personnel. In September, JPRA sent a team of instructors, including two instructors who had discussed and demonstrated SERE physical pressures to [delete] officers in July, to Fort Bragg, North Carolina to provide instruction at a four day conference attended by the GTMO personnel.

(U) Just weeks after the JPRA training at Fort Bragg, two GTMO personnel who attended the Fort Bragg training drafted a memo proposing the use of physical and psychological pressures in interrogations at GTMO, including some pressures used at SERE schools to teach U.S. soldiers how to resist interrogation by enemies that do not follow the Geneva Conventions.

(U) On October 11, 2002, Major General Michael Dunlavey, Commander of GTMO's Joint Task Force 170 (JTF-170) submitted a modified version of that memo for approval by his Chain of Command. On December 2, 2002, Secretary of Defense Rumsfeld approved many of those techniques for use in interrogations at GTMO.

A. GTMO Stands Up a Behavioral Science Consultation Team (BSCT) (U)

(U) In June 2002, members of the Army's 85th Medical Detachment's Combat Stress Control Team deployed to Guantanamo Bay. Upon arrival, three members of the team - psychiatrist Major Paul Burney, psychologist [delete] and a psychiatric technician - were informed that MG Michael Dunlavey, the Commander of JTF-170, had assigned them to support interrogation operations as part of a newly created Behavioral Science Consultation Team (BSCT) at the JTF. This assignment came as a surprise to MAJ Burney and [delete] because, when they were deployed, the two understood that their mission would be to care for U.S. soldiers dealing with deployment-related stress. [274] In a written statement provided to the Committee, MAJ Burney described the assignment:

Three of us, [the enlisted psychiatric technician], and I, were hijacked and immediately in processed into Joint Task Force 170, the military intelligence command on the island. It turns out we were assigned to the interrogation element because Joint Task Force 170 had authorizations for a psychiatrist, a psychologist, and a psychiatric technician on its duty roster but nobody had been deployed to fill these positions. Nobody really knew what we were supposed to do for the unit, but at least the duty roster had its positions filled. [275]


(U) MG Dunlavey told the Committee that he was in the hospital for much of the month of June and did not know who initiated the creation of the JTF-170 BSCT. [276]

(U) Prior to their arrival at GTMO, neither MAJ Burney nor [delete] had any training to support interrogations and there was no standard operating procedure in place for the team at GTMO. [277] MAJ Burney told the Committee that the team was "very aware of how little we knew about the whole spectrum of detention and interrogation, we decided we needed help. [278]

B. Behavioral Science Consultation Team (BSCT) Personnel Contact the Army Special Operations Command (USASOC) (U)

(U) Shortly after arriving at GTMO, the BSCT contacted the Chief of the Psychological Applications Directorate (PAD) at the U.S. Army's Special Operations Command (USASOC), LTC Louie "Morgan" Banks. [279] At the time LTC Banks was also the senior Army SERE Psychologist. The BSCT psychologist, [delete] had met LTC Banks prior to deploying to GTMO but told the Committee that he was unaware at the time of the connections LTC Banks had with the Army's SERE School.

[delete] LTC Banks told the Committee that it was apparent to him that the BSCT lacked the proper training for the mission and that, when asked to help, he felt obliged to assist. [280] LTC Banks contacted the Joint Personnel Recovery Agency (JPRA) for assistance in organizing training for the BSCT. [281] After speaking to Col Moulton, the JPRA Commander, LTC Banks informed the BSCT that JPRA was willing to modify its prior [delete] interrogation training sessions to suit the BSCT's needs. [282]

(U) BSCT members told the Committee that they sought the training to better understand the interrogation process. [283] They also told the Committee, however, that GTMO's Director for Intelligence (J-2), LTC Jerald Phifer, approved their trip with the expectation that the BSCT would learn about and bring back interrogation techniques that could be considered for use in interrogations at GTMO; a point that the LTC Phifer confirmed in his testimony to the Department of the Army Inspector General (Army IG). [284] The Staff Judge Advocate at GTMO, LTC Diane Beaver, confirmed LTC Phifer's account, but said that MG Dunlavey told staff he had been considering a request for authority to use additional interrogation techniques and that MG Dunlavey's purpose in sending the staff to the training was to "find out what could be used." [285]

(U) MAJ Burney said that he and [delete] made LTC Banks "aware that there was interest within JTF-170 to see if we could use 'SERE tactics' to try to elicit information from detainees." [286] [Delete] told the Committee that he believed that the two discussed the GTMO command's interest in obtaining a list of resistance training techniques with LTC Banks. [287] The JPRA Operational Support Office Chief Christopher Wirts, told the Committee that he believed that he and LTC Banks also talked about the need to demonstrate physical pressures used in SERE schools at the Fort Bragg training. [288] LTC Banks, however, told the Committee that he did not recall a discussion of physical pressures at the training and that he was surprised when he later learned that the BSCT had expected to become familiar with resistance training techniques used in SERE school while at the training session. [289]

(D) At the time, there was a view by some at GTMO that interrogation operations had not yielded the anticipated intelligence, [290] MAJ Burney testified to the Army IG regarding interrogations:

[T]his is my opinion, even though they were giving information and some of it was useful, while we were there a large part of the time we were focused on trying to establish a link between Al Qaeda and Iraq and we were not being successful in establishing a link between Al Qaeda and Iraq. The more frustrated people got in not being able to establish this link ... there was more and more pressure to resort to measures that might produce more immediate results. [291]


[Delete] The GTMO Interrogation Control Element (ICE) Chief, David Becker told the Committee that at one point interrogation personnel were required to question [delete] [big delete] but that he was unaware of the source of that requirement. [292] Others involved in JTF-170 interrogation operations agreed that there was pressure on interrogation personnel to produce intelligence, but did not recall pressure to identify links between Iraq and al Qaeda. [293]

[Delete] delete] Mr. Becker told the Committee that during the summer of 2002, the JTF-170 Commander, MG Dunlavey, and his Director for Intelligence (J-2), LTC Phifer, had urged him to be more aggressive in interrogations. [294] Mr. Becker also told the Committee that MG Dunlavey and LTC Phifer repeatedly asked him during this period why he was not using stress positions in interrogations, even though the August 2002 Standard Operating Procedure for JTF-170 expressly prohibited the use of the technique. [295] MG Dunlavey told the Committee that he did not recall asking his staff why they were not using stress positions or telling them that they should be more aggressive. [296]

[Delete] Mr. Becker also told the Committee that, on several occasions, MG Dunlavey had advised him that the office of Deputy Secretary of Defense Wolfowitz had called to express concerns about the insufficient intelligence production at GTMO. [297] Mr. Becker recalled MG Dunlavey telling him after one of these calls, that the Deputy Secretary himself said that GTMO should use more aggressive interrogation techniques. [298] MG Dunlavey told the Committee that he could not recall ever having a phone call with Deputy Secretary Wolfowitz or his staff. [299]

C. U.S. Southern Command Seeks External Review of GTMO (U)

[Delete] Just as the JTF-170 BSCT was reaching out to LTC Banks for assistance, SOUTHCOM was looking for advice to improve GTMO operations. In June 2002, Major General Gary Speer, the Acting Commander of SOUTHCOM, requested that the Joint Staff conduct an external review of intelligence collection operations at Guantanamo Bay. [300] In response, the Joint Staff directed COL John P. Custer, then-assistant commandant of the U.S. Army Intelligence Center and School at Ft. Huachuca, Arizona, to lead a review team.

[Delete] COL Custer's team visited GTMO in August and submitted its findings to the Joint Staff on September 10, 2002. [301] Like COL Herrington's assessment six months earlier, the Custer review identified a number of issues hampering GTMO's intelligence collection mission, [Big delete]

[Delete] COL Custer also noted deficiencies in interrogation approaches used by JTF-170, stating that:

[Big delete]


[Delete] COL Custer recommended that SOUTHCOM, in coordination with JTF-170, provide written guidance "delineating what tools and measures are available and permissible to leverage control over the detainees while providing acceptable guidelines for questioning." [304] He also recommended combining the FBI's Behavioral Analysis Unit and the JTF-170 BSCT to use both military and law enforcement approaches to create an environment that would be "conducive to extracting information by exploiting the detainee's vulnerabilities." [305]

[Delete] In his report, COL Custer referred to GTMO as "America's 'Battle Lab" in the global war on terror, observing that "our nation faces an entirely new threat framework," which must be met by an investment of both human capital and infrastructure. [306]

(U) Several witnesses expressed concerns to the Committee about using the term "Battle Lab" to describe operations at GTMO. [307] In written answers to questionnaires from Senator Carl Levin, COL Britt Mallow, the Commander of the Criminal Investigative Task Force (CITF), stated:

MG Dunlavey and later MG Miller referred to GTMO as a "Battle Lab" meaning that interrogations and other procedures there were to some degree experimental, and their lessons would benefit DOD in other places. While this was logical in terms of learning lessons, I personally objected to the implied philosophy that interrogators should experiment with untested methods, particularly those in which they were not trained. [308]


(U) CITF's Deputy Commander, Mark Fallon, echoed the CITF Commander's concern. Mr. Fallon stated that CITF did not concur with the Battle Lab concept because the task force "did not advocate the application of unproven techniques on individuals who were awaiting trials." [309] He emphasized that the CITF position was that "there were many risks associated with this concept ... and the perception that detainees were used for some 'experimentation' of new unproven techniques had negative connotations." [310]

(U) MG Dunlavey told the Committee he did not think he would have used the term to describe GTMO. [311] MG Miller told the Committee that he did not recall using the term and that it would be inappropriate to apply it to an operational unit. [312]

D. GTMO Personnel Attend Training at Fort Bragg (U)

(U) On September 16, 2002, less than a week after COL Custer submitted his report to the Joint Chiefs of Staff, seven personnel from JTF-170 at GTMO, including three members of the BSCT and four interrogators, arrived at Fort Bragg for training organized by LTC Banks and JPRA They were joined by a CIA psychologist and several Army personnel. [313] Joint Forces Command (JFCOM) was formally notified on September 5, 2002 that JPRA intended to provide training support to Army psychologists, but did not mention Guantanamo Bay or interrogation. [314]

(U) JPRA sent senior SERE psychologist Gary Percival, who had recently assumed that position after Dr. Jessen's departure, and two instructors to conduct the training at Fort Bragg.

[Delete] Dr. Percival and one of the two trainers, Joseph Witsch, had been instructors at the exploitation training for [delete] in July, where they had discussed and demonstrated physical pressures. [315] In testimony before the Committee, the other JPRA trainer, Terrence Russell, stated that the team had designed the training to provide attendees a "familiarization with the academic or the theoretical application of exploitation from a SERE perspective." [316] A contemporaneous email from JPRA Operational Support Office (OSO) Chief Christopher Wirts, who was involved in planning the training, explained that it was intended to be "similar in nature to what we did for OGA on the last iteration." [317] None of the three instructors sent by JPRA to Fort Bragg was a trained interrogator. [318]

[Delete] According to a JPRA plan of instruction dated August 28, 2002, the first day of training included instruction on the stages of [big delete] [big delete]. The next three days of training in the plan included a range of topics, including [big delete]." [319]

[Delete] [delete] JPRA developed a number of presentations to support the training uncluding one called [big delete]. A slide from that presentation stated that ''the exploitation process is fairly simple but needs to be adhered to [to] be successful if the goal is to increase the likelihood of obtaining useful intelligence information from enemy prisoners..." [320] The presentation listed a number of "Critical Operational Exploitation Principles" including [big delete]." [321]. The "Principles" listed in the Fort Bragg training presentation were substantially the same as those described in the Exploitation Draft Plan, circulated by Dr. Jessen in April, which described a JPRA-directed exploitation process. [322]

[Delete] Though GTMO was a facility that dealt with detainees after they had been removed from the battlefield, the presentation also included information on "Tactical Questioning," stating that tactical interrogators should [big delete] [Big delete]." [323] Mr. Witsch, the JPRA instructor who acted as Team Chief for the training, testified to the Committee:

Rough handling is you would pull the person up to their feet, you would move them rapidly in the direction that you were going to take them... basically, they have no control. They would feel like the person that has them is in total control of them. That's what we mean by rough handling. [324]


[Delete] Presentation slides used for the training also listed a number of other recommendations for handling detainees including [big delete] [big delete]." [325] Mr. Witsch testified to the Committee that he did not know what was meant by those statements and he could not recall any discussion about what punishments might be culturally undesirable for Arab or Islamic detainees. [326]

[Delete] [delete] The presentation stated that "all daily activities should be on random schedules" and should, among other things "disrupt prisoner sleep cycles." [327] Mr. Witsch said that denying detainees the ability to predict and determine their schedules "keeps them somewhat off guard and guessing." [328]

[Delete] [delete] A second JPRA presentation delivered at Fort Bragg described methods to deal with detainees who were trained to resist interrogation. [329] The presentation, entitled "Counter Measures to Defeat al Qaeda Resistance Contingency Training Based on Recently Obtained AL-QA'IDA Documents" listed several countermeasures to deal with resistant detainees including "invasion of personal space by female." [330] Mr. Witsch explained that "[i]n a lot of cases, it's uncomfortable for a male to have a female in their space. It could also be looked at as uncomfortable having a female in front of an Arab... What this is is a form of pressure in that situation." [331] He testified that lPRA might have become aware that the invasion of the personal space by a female might make an Arab detainee uncomfortable while conducting research in preparation for the training. [332]

[Delete] [delete] The presentation on countermeasures to defeat al Qaeda resistance also explained that "[i]f the prisoner believes that Americans are immoral barbarians and what he sees counters those beliefs then his core beliefs have been shaken and he is more likely to cooperate.. . . If his core beliefs are reinforced by his treatment he is more likely to stick to his resistance." [333] Mr. Witsch told the Committee that it was "hard to say" what the effect of [Big delete] [big delete] would have on a detainee's resistance - whether it would make the detainee more or less likely to cooperate. [334]

(U) In his testimony to the Army IG, MAJ Burney, the GTMO BSCT psychiatrist who attended the training, stated that JPRA personnel at Fort Bragg, "described some of the stuff that they would do in SERE school as far as keeping people in some sort of solitary confinement for a period of time" or "finding out what their fears were before they came so that they would try and use those against them, whether it was fear of spiders, of the dark or whatever..." [335] An interrogator from GTMO who attended the training also recalled a discussion about the use of phobias. [336]

[Delete] [delete] Members of the GTMO BSCT who attended the Fort Bragg training recalled discussions with the JPRA instructors about how they administered physical pressures. [337] MAJ Burney told the Committee that instructors talked about techniques the SERE schools used to teach resistance to interrogation, such as walling, and exposing students to cold until they shiver. [338] [Delete] told the Committee that hooding and hitting in a way that was not injurious were both mentioned at Fort Bragg. [339] An interrogator from JTF-170 who attended the training also recalled a discussion about the use of physical pressures. [340]

(U) That same interrogator said that the instructors spoke about using existing procedures at GTMO to enhance interrogations. [341] For example, the interrogator told the Committee that there was a discussion with JPRA personnel that military working dogs, already present at GTMO for security, could enhance detainee exploitation. Similarly, the interrogator said that the instructors pointed out that hoods, goggles, and ear muffs were already in use with detainees at GTMO for security purposes, and that existing processes utilizing those techniques could also be used to enhance interrogations. The interrogator also recalled requesting additional JPRA training for GTMO personnel on the use of physical pressures.

(U) Neither LTC Banks nor any of the JPRA instructors from the Fort Bragg training could recall if there were discussions of physical pressures. [342] LTC Banks told the Committee that using physical pressures designed for students at SERE school in actual interrogations would almost always be unproductive. [343] For example, he told the Committee that slapping a person would harden their resistance.

(U) Despite the apparent instruction on physical pressures, MAJ Burney told the Army IG that instructors at Fort Bragg believed that the techniques used in SERE training should not be brought back for use at GTMO and that "interrogation tactics that rely on physical pressures or torture, while they do get you information, do not tend to get you accurate information or reliable information." [344] In a written statement provided to the Committee, MAJ Burney reiterated that point, stating that "[i]t was stressed time and time again that psychological investigations have proven that harsh interrogations do not work. At best it will get you information that a prisoner thinks you want to hear to make the interrogation stop, but that information is strongly likely to be false." [345]

[Delete] [delete] During the Fort Bragg training, the GTMO personnel also discussed conditions at GTMO that they felt were hampering intelligence collection efforts. In his after action report summarizing the training, JPRA instructor and training Team Chief Joseph Witsch described some of those conditions stating for example that [big delete] [big delete] " [346] Mr. Witsch also stated in his after action report that "[a] lot of interrogation techniques used in the past are no longer effective against the individual detainees because they have developed an awareness and countermeasures to deal with them." [347] Mr. Witsch added that some of the interrogators had become "frustrated over the controls placed on their ability to extract actionable information," such as restrictions on bringing detainees together in a room to confront inconsistencies or on interrogating detainees for "12-15-20 hours at a time." [348] While Mr. Witsch noted that rapport building had proved to be the most effective interrogation technique in eliciting information and that the positive treatment of detainees at GTMO was having some effect, he stated that the positive effect appeared limited to the "younger, inexperienced" detainees." [349]

[Delete] [delete] In his after action report, Mr. Witsch expressed concerns about JPRA involvement in GTMO operations, writing:

I highly recommend we continue to remain in an advisory role and not get directly involved in the actual operations - GITMO in particular. We have no actual experience in real world prisoner handling. The concepts we are most familiar with relate to our past enemies and we have developed our Code of Conduct procedures based on those experiences. Without actual experience with current [Designated Unlawful Combatants] we are making the assumption that procedures we use to exploit our personnel will be effective against the current detainees. [350]


[Delete] A week later, Mr. Witsch prepared a follow up memo for Mr. Wirts, JPRA's OSO chief, expressing concern about JPRA's involvement with detainee exploitation, stating:

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

[Delete] [delete] Mr. Witsch continued:

I believe the techniques and tactics that we use in training have applicability. What I am wrestling with is the implications of using these tactics as it relates to current legal constraints, the totally different motivations of the detainees, and the lack of direction of senior leadership within the [U.S. Government] on how to uniformly treat detainees.

I think we are well within our sphere of influence if we stick to providing methods to counter resistance trained [Designated Unlawful Combatants]. We are out of our sphere when we begin to profess the proper ways to exploit these detainees. We are now attempting to educate lower level personnel in DoD and OGAs with concepts and principles that are somewhat foreign to them and while it all sounds good they are not in a position nor do they have the depth of knowledge in these matters to effect change and do it in reasonable safety.

The handling of [Designated Unlawful Combatants] is a screwed up mess and everyone is scrambling to unscrew the mess ... If we want a more profound role in this effort we need to sell our capabilities to the top level people in the USG and not spend our time trying to motivate the operators at the lower levels to sway their bosses. This is running the train backwards and that is a slow method to get somewhere. There are a lot of people in the USG intelligence community that still believe in the old paradigm and wonder just what we're doing in their business. [351]


[Delete] The memo concluded with the warning, "[w]e don't have an established track record in this type of activity and we would present an easy target for someone to point at as the problem. The stakes are much higher for this than what you and I have done in any activity before." [352]

E. Delegation of Senior Government Lawyers Visits Guantanamo (U)

(U) On September 25, 2002, less than a week after GTMO personnel returned from the training at Fort Bragg, Counsel to the President Alberto Gonzales, Counsel to the Vice President David Addington, DoD General Counsel Jim Haynes, Acting CIA General Counsel John Rizzo, Assistant Attorney General of the Criminal Division Michael Chertoff, and other senior administration officials travelled to Guantanamo Bay and were briefed on future plans for detention facilities as well as on intelligence successes, failures, and problems at the JTF. [353]

[Delete] [delete] According to a trip report prepared by a Deputy Staff Judge Advocate at SOUTHCOM, MG Dunlavey held private conversations with Mr. Haynes and a few others and briefed the entire group on a number of issues including "policy constraints" affecting interrogations at the JTF. [354] For example, MG Dunlavey told the group that JTF-170 would "like to take Koran away from some detainees - hold it as incentive" but that the issue was undergoing a policy determination by SOUTHCOM. [355] The trip report noted that Mr. Haynes "opined that JTF-170 should have the authority in place to make those calls, per POTUS order," adding that he "[t]hought JTF-170 would have more freedom to command." [356] MG Dunlavey told the Committee that he may have told the group during their visit that JTF-170 was working on a request for authority to use additional interrogation techniques. [357] Mr. Haynes said he did not recall discussing specific interrogation techniques or GTMO's work on a request for authority to use additional interrogation techniques. [358]

F. JTF-170 BSCT Produces Interrogation Policy Memo (U)

(U) According to the Staff Judge Advocate (SJA) at GTMO, LTC Diane Beaver, there was discussion among senior staff at GTMO as to whether or not the JTF required explicit authorization to use interrogation approaches that had not been taught to interrogators at the U.S. Army Intelligence Center at Fort Huachuca, Arizona. While some felt that JTF- 170 already had the authority to use additional interrogation techniques, MG Dunlavey directed his staff to draft a request for new authorities to submit to SOUTHCOM for approval. [359]

(U) The JTF-170 Director for Intelligence, LTC Jerald Phifer, told the Committee that MG Dunlavey wanted to get new techniques on the table and that MG Dunlavey pressured him to draft a memo requesting additional techniques. [360] LTC Phifer asked the BSCT to draft an interrogation policy that could be formally submitted up the chain of command for review. [361] According to MAJ Burney, the BSCT psychiatrist, "by early October there was increasing pressure to get 'tougher' with detainee interrogations but nobody was quite willing to define what 'tougher' meant." [362] MAJ Burney added that there was "a lot of pressure to use more coercive techniques" and that if the interrogation policy memo that LTC Phifer had asked him to write did not contain coercive techniques, then it "wasn't going to go very far." [363]

(U) According to MAJ Burney, he and [delete] wrote a memo of suggested detention and interrogation policies in the course of an evening. [364] MAJ Burney told the Committee that some of the interrogation approaches identified in the memo came from their JPRA training in Fort Bragg and other approaches were simply made up by the BSCT. [365] [Delete] the BSCT psychologist, also told the Committee that the BSCT used information from the JPRA training at Fort Bragg to draft the memo. [366]

[Delete] The BSCT memo, dated October 2, 2002, began:

[Big delete]


[Delete] The memo identified a number of conditions at GTMO that the BSCT judged to be hindering intelligence collection and stated:

[Big delete]


[Delete] The October 2, 2002 memo proposed three categories of interrogation techniques ''for use in the interrogation booth to develop rapport, promote cooperation, and counter resistance." [369] Category I techniques included incentives and "mildly adverse approaches" such as telling a detainee that he was going to be at GTMO forever unless he cooperated. [370] The memorandum stated that an interrogator should be able to ascertain whether a detainee is being cooperative by the end of the initial interrogation and said that if Category I approaches failed to induce cooperation, the interrogator could request approval for Category II approaches. [371]

[Delete] Category II techniques were designed for 'high priority" detainees, defined in the memo as "any detainee suspected of having significant information relative to the security of the United States." [372] Category II techniques included stress positions; the use of isolation for up to 30 days (with the possibility of additional 30 day periods, if authorized by the Chief Interrogator); depriving a detainee of food for up to 12 hours (or as long as the interrogator goes without food during an interrogation); the use of back-to-back 20 hour interrogations once per week; removal of all comfort items including religious items; forced grooming; handcuffing a detainee; and placing a hood on a detainee during questioning or movement. [373]

[Delete] The memo reserved Category III techniques "ONLY for detainees that have evidenced advanced resistance and are suspected of having significant information pertinent to national security." [374] Category III techniques included the daily use of 20 hour interrogations; the use of strict isolation without the right of visitation by treating medical professionals or the International Committee of the Red Cross (ICRC); the use of food restriction for 24 hours once a week; the use of scenarios designed to convince the detainee he might experience a painful or fatal outcome; non-injurious physical consequences; removal of clothing; and exposure to cold weather or water until such time as the detainee began to shiver. [375]

[Delete] In addition to suggesting interrogation techniques, the BSCT memo made recommendations for the treatment of detainees in the cell blocks. Specifically, it proposed that resistant detainees might be limited to four hours of sleep a day; that they be deprived of comfort items such as sheets, blankets, mattresses, washcloths; and that interrogators control access to all detainees' Korans. [376] The BSCT memo described using fans and generators to create white noise as a form of psychological pressure and advocated that "all aspects of the [detention] environment should enhance capture shock, dislocate expectations, foster dependence, and support exploitation to the fullest extent possible." [377]

[Delete] [delete] MAJ Burney and [delete] told the Committee that they were not comfortable with the memo they were asked to produce, and therefore included a statement in the memo reflecting their concerns about the techniques, including concerns about the "long term physical and/or mental impact of the techniques." [378] They wrote:

Experts in the field of interrogation indicate the most effective interrogation strategy is a rapport-building approach. Interrogation techniques that rely on physical or adverse consequences are likely to garner inaccurate information and create an increased level of resistance...There is no evidence that the level of fear or discomfort evoked by a given technique has any consistent correlation to the volume or quality of information obtained... The interrogation tools outlined could affect the short term and/or long term physical and/or mental health of the detainee. Physical and/or emotional harm from the above techniques may emerge months or even years after their use. It is impossible to determine if a particular strategy will cause irreversible harm if employed ... Individuals employing Category II or Category III interrogation techniques must be thoroughly trained ... carefully selected, to include a mental health screening (such screenings are SOP for SERE and other Special Operations personnel). [379]


(U) The BSCT provided a copy of their memo to LTC Banks at U.S. Army Special Operations Command (USASOC), who had helped organize their JPRA training. Upon reviewing the memo, LTC Banks praised the BSCT for their "great job" on the memo, but also raised concerns about the suggested use of physical pressures in interrogation, noting that physical pressures are used with students in SERE school to increase their resistance to interrogation, not break it down. [380]

(U) LTC Banks wrote:

[Delete] [delete] The use of physical pressures brings with it a large number of potential negative side effects... When individuals are gradually exposed to increasing levels of discomfort, it is more common for them to resist harder. That is one of the reasons we use it [in SERE school] - to increase the resistance posture of our soldiers. If individuals are put under enough discomfort, i.e. pain, they will eventually do whatever it takes to stop the pain. This will increase the amount of information they tell the interrogator, but it does not mean the information is accurate. In fact, it usually decreases the reliability of the information because the person will say whatever he believes will stop the pain. Now, there are certain exceptions, like with all generalizations, but they are not common. Bottom line: The likelihood that the use of physical pressures will increase the delivery of accurate information from a detainee is very low. The likelihood that the use of physical pressures will increase the level of resistance in a detainee is very high...

[Delete] [delete] It is important to remember that SERE instructors use these techniques [physical pressures] because they are effective at increasing resistance ... Because of the danger involved, very few SERE instructors are allowed to actually use physical pressures ... everything that is occurring [in SERE school] is very carefully monitored and paced... Even with all these safeguards, injuries and accidents do happen. The risk with real detainees is increased exponentially.

(U) My strong recommendation is that you do not use physical pressures ... [If GTMO does decide to use them] you are taking a substantial risk, with very limited potential benefit. [381]


G. CIA Lawyer Advises GTMO on Interrogations (U)

(U) On October 2, 2002, the GTMO Staff Judge Advocate LTC Diane Beaver convened a meeting to discuss the BSCT memo. Minutes from that meeting reflect the attendance of JTF- 170 personnel and the then-chief counsel to the CIA's CounterTerrorist Center Jonathan Fredman. [382]

(U) Mr. Fredman's visit took place just a week after the acting CIA General Counsel John Rizzo and DoD General Counsel Jim Haynes's September 25, 2002 visit to GTMO. Mr. Haynes did not recall discussing with Mr. Rizzo during their visit the possibility of having a CIA lawyer travel to GTMO to talk to DoD personnel there. [383] Mr. Haynes said he later found out in a discussion with Mr. Rizzo that a CIA lawyer had gone to GTMO and discussed legal authorities applicable to interrogations, but said he could not recall when he first learned of that CIA lawyer's visit.

(U) While LTC Beaver could not recall what she or others said, the minutes of the October 2, 2002 meeting indicate that it began with a briefing by the BSCT on the JPRA training at Fort Bragg. [384] The BSCT briefer told the group that rapport building and the "friendly approach" were proven methods to overcome resistance, while "fear based approaches" were ''unreliable'' and "ineffective in almost all cases." [385] According to the meeting minutes, however, the BSCT did report that psychological stressors such as sleep deprivation, withholding food, isolation, and loss of time were "extremely effective." [386] The BSCT also identified "campwide, environmental strategies designed to disrupt cohesion and communication among detainees" as potentially helpful to improve the effectiveness of interrogations and explained that the detention "environment should foster dependence and compliance." [387]

(U) Despite the BSCT comment on the effectiveness of rapport building, the meeting minutes reflect little discussion of that approach. In fact, according to the meeting minutes, the GTMO Director for Intelligence LTC Jerald Phifer questioned the BSCT assessment, stating that "harsh techniques used on our service members have worked and will work on some, what about those?" [388] [Delete] responded that force was "risky, and may be ineffective." [389] Nevertheless, the remainder of the meeting appears to have revolved around a discussion of aggressive interrogation techniques and how to obtain the approval to use them.

(U) Interrogation Control Element (ICE) Chief David Becker noted at the meeting that there were many reports about sleep deprivation used at Bagram in Afghanistan. [390] According to the meeting minutes, LTC Beaver agreed but stated that "officially it is not happening." [391] Nevertheless, LTC Beaver suggested that sleep deprivation could be used on GTMO detainees ''with approval." [392] The group also discussed ways to manage the detainees' sleep cycles, i.e., by letting the detainee rest ''just long enough to fall asleep and wake him up about every thirty minutes and tell him it's time to pray again." [393]

(U) According to the meeting minutes, LTC Beaver suggested that the JTF might "need to curb the harsher operations while [the International Committee of the Red Cross (ICRC)] is around," and that it would be "better not to expose them to any controversial techniques." [394] LTC Beaver explained that "[t]he 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." [395] The minutes reflect that the CIA lawyer added his view:

In the past when the ICRC has made a big deal about certain detainees, the DOD has 'moved' them away from the attention of the ICRC. Upon questioning from the ICRC about their whereabouts, the DOD's response has repeatedly been that the detainee merited no status under the Geneva Convention. [396]


(U) At the meeting, the minutes reflect that CIA lawyer Jonathan Fredman also discussed whether or not the techniques in the BSCT memo complied with applicable legal standards. Mr. Fredman explained:

Under the Torture Convention, torture has been prohibited by international law, but the language of the statutes is written vaguely. Severe mental and physical pain is prohibited. The mental part is explained as poorly as the physical. Severe physical pain [is] described as anything causing permanent damage to major organs or body parts. Mental torture [is] described as anything leading to permanent, profound damage to the senses or personality. It is basically subject to perception. If the detainee dies you're doing it wrong. So far the techniques we have addressed have not proven to produce these types of results, which in a way challenges what the BSCT paper says about not being able to prove whether these techniques will lead to permanent damage. Everything in the BSCT [memo] is legal from a civilian standpoint. [397]


(U) According to the minutes, when the participants of the meeting discussed whether or not to videotape the "aggressive sessions or interrogations," Mr. Fredman said that videotaping of "even totally legal techniques will look 'ugly.'" [398] Mr. Becker, who agreed with the CIA lawyer's assessment, added that "videotapes are subject to too much scrutiny in court." [399]

(U) When an attendee at the meeting mentioned that law enforcement agents (presumably referring to CITF and FBI) had concerns about the use of aggressive tactics, the minutes reflect that Mr. Fredman responded that "[w]hen CIA has wanted to use more aggressive techniques in the past, the FBI has pulled their personnel from theatre. In those rare instances, aggressive techniques have proven very helpful." [400] LTC Beaver added that there was no legal reason why law enforcement personnel could not participate in those operations. [401]

(U) While LTC Beaver testified in 2008 that she was aware that SERE training was not designed for offensive use with detainees, the minutes of the October 2, 2002 meeting reflect that she nevertheless asked about use of the "wet towel" technique in SERE school. [402] The CIA lawyer replied:

If a well-trained individual is used to perform this technique it can feel like you're drowning. The lymphatic system will react as if you're suffocating, but your body will not cease to function. It is very effective to identify phobias and use them (i.e., insects, snakes, claustrophobia). The level of resistance is directly related to person's experience. [403]


(U) According to the meeting minutes, ICE Chief David Becker asked whether GTMO could get blanket approval for the use of techniques or whether techniques would be approved on a case-by-case basis. [404] Mr. Fredman responded that the "CIA makes the call internally on most of the techniques found in the BSCT" memo and referenced in their meeting, but that "significantly harsh techniques are approved through the DOJ." [405] As to whether Geneva Conventions would apply, Mr. Fredman noted that the "CIA rallied for it not to." [406]

(U) The meeting minutes also reflect Mr. Fredman thoughts on other interrogation techniques, such as threats of death. Mr. Fredman noted that such threats "should be handled on a case by case basis. Mock executions don't work as well as friendly approaches, like letting someone write a letter home, or providing them with an extra book." [407]

(U) Weeks later, CITF Deputy Commander Mark Fallon wrote an email to CITF's Chief Legal Counsel Major Sam McCahon regarding the meeting minutes:

Quotes from LTC Beaver regarding things that are not being reported give the appearance of impropriety. Other comments like "It is basically subject to perception. If the detainee dies you're doing it wrong" and "Any of the techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual. Medical personnel should be present to treat any possible accidents." Seem to stretch beyond the bounds of legal propriety. Talk of "wet towel treatment" which results in the lymphatic gland reacting as if you are suffocating, would in my opinion; shock the conscience of any legal body looking at using the results of the interrogations or possibly even the interrogators. Someone needs to be considering how history will look back at this. [408]


[Delete] The October 2, 2002 meeting minutes indicated that the group discussed Mohammed al Khatani, a high value detainee suspected of being connected to the September 11, 2001 attacks. A week before the meeting, JTF-170 had assumed the lead on Khatani's interrogation. [409] By the October 2, 2002 meeting, JTF-170 had already developed an aggressive interrogation plan for Khatani.

[Delete] Two days after the meeting, BSCT psychiatrist MAJ Paul Burney sent an email to LTC Banks, stating that "persons here at this operation are still interested in pursuing the potential use of more aversive interrogation techniques ... Were more aversive techniques approved for use in the future by appropriate people, the operation would like to have a few task force personnel specifically trained in various techniques." [410] MAJ Burney asked whether LTC Banks knew "where task force personnel could go to receive such training" and whether he knew of "any consultants who could assist if any of these measures are eventually approved." [411]

[Delete] LTC Banks replied "I do not envy you. I suspect I know where this is coming from. The answer is no, I do not know of anyone who could provide that training... The training that SERE instructors receive is designed to simulate that of a foreign power, and to do so in a manner that encourages resistance among the students. I do not believe that training interrogators to use what SERE instructors use would be particularly productive." [412]

H. DoD Takes Lead on the Interrogation of Mohammed al Khatani (U)

[Delete] [delete] According to the Department of Defense, Pakistani authorities captured Mohammed al Khatani along the Pakistani-Afghanistan border on December 15, 2001 and turned him over to U.S. forces on December 26, 2001. [413] He was transferred to Guantanamo Bay on February 13, 2002, where he was initially interrogated by JTF-170, CITF and FBI personnel at Camp X-Ray.

[Delete] [delete] In the summer of 2002, Khatani was identified as a possible "twentieth hijacker" of the September 11 attacks. [414] From July 27, 2002 until September 19, 2002, Khatani was questioned by the FBI. [415] During this period, Khatani was held at the recently built Camp Delta until August 8, 2002 when he was transferred to the Naval Brig at Guantanamo Bay. [416] While he was in FBI custody, JTF-170 began drafting an interrogation plan for Khatani.

(U) On September 23, 2002, the CITF Special Agent in Charge sent a memorandum to CITF's Deputy Commander raising concerns about JTF-170's proposed interrogation plan for Khatani. The memo stated:

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

As a law enforcement agency, CITF is clearly prohibited from participating in these techniques and we also do not want to turn a deaf ear when we learn of these issues... [417]


[Big delete]

[Big delete]

[Big delete]

(U) While MG Dunlavey's memo stated that the request had "been reviewed by my Staff Judge Advocate and determined to be legally sufficient," the SJA, LTC Diane Beaver, told the Committee that she had not been consulted on the interrogation plan and did not recall reviewing the memo or providing the Commander with guidance regarding the legal sufficiency of the request. [425] Major General Dunlavey said that he did not recall whether or not he personally consulted with LTC Beaver, that the letter would likely have been drafted by his Director for Intelligence, LTC Jerald Phifer, and that it was possible that the statement in the letter that LTC Beaver had been consulted was based on a representation by his staff. [426]

[Delete] From October 2 until October 10, 2002, ITF-170 personnel interrogated Khatani. According to multiple witness accounts, on or about October 5, 2002, military working dogs were brought into the room where Khatani was being interrogated. [427] A summarized statement of testimony provided by one of the FBI agents present at the time indicated that the FBI objected to the use of dogs and raised those objections to Mr. Becker, the ITF-170 ICE Chief. [428] In testimony to the Army IG, Mr. Becker acknowledged that he permitted the military working dog to enter the interrogation in order to raise the detainee's stress level. [429]

[Delete] Mr. Becker told the Committee that he had authorized dogs entering the interrogation room on two occasions and that the dog barked but was not permitted to place its paws on Khatani. [430] Mr. Becker also told the Committee that LTC Phifer provided verbal authority for the dogs to be used in this manner. LTC Phifer recalled discussing dogs with Mr. Becker as a technique because Arabs "saw dogs as a dirty animal and they didn't like them," not because they should be "used as a fear factor." [431] LTC Phifer told the Army IG, however, that Mr. Becker never told him that he had approved the use of a dog during the Khatani interrogation. However, in written answers to questions posed by Vice Admiral Church, LTC Phifer stated that dogs were used in the Khatani interrogation and that " w]e would bring the dog around to within 10 feet [of Khatani] and he would be somewhat unnerved by it. We did it to keep him off balance as well as to enhance security." [432] Major General Dunlavey said that he did not recall being aware that a dog was used in the interrogation of Khatani. [433]

[Delete] [delete] In an October 8, 2002 email to his colleague, an FBI agent described JTF- 170's interrogation of Khatani, stating that DoD had tried "sleep deprivation," "loud music, bright lights, and 'body placement discomfort,' all with negative results" and that DoD interrogators planned to stop the interrogation. [434] Mr. Becker told the Committee that the interrogation plan did not work and that JTF-170 ceased the interrogation after approximately a week and moved Khatani back to the Navy brig. [435]

(U) Another FBI agent reflected upon the failed interrogation in his own email of October 8, 2002, observing that "I think we should consider leaving him alone, let him get healthy again and do something different." [436]
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