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 CounterTerrorist 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)
Secretary of Defense Rumsfeld Approves Aggressive Techniques (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.
(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.