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]
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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)").