The Semantics of Bush's Torture Policy
By Jason Leopold
The Bush administration built a legal framework – relying on semantics and secrecy – to subject detainees at Guantanamo Bay to brutal interrogation techniques and then to hide the reality from human rights observers, according to internal government documents.
The documents, made public by the Senate Armed Services Committee, undercut assertions by President George W. Bush, Vice President Dick Cheney, former Defense Secretary Donald Rumsfeld and other senior administration officials who have blamed cruel treatment of detainees on "a few bad apples" who acted on their own.
Instead, the documents show that the pattern of humiliation, abuse and even torture inflicted on detainees was a deliberate policy of the Bush administration – debated by mid-level lawyers at the CIA and the Pentagon, given legal cover at the Justice Department and approved at the highest levels of government.
According to one document, Jonathan Fredman, chief counsel to the CIA’s Counterterrorism Center, discussed with U.S. military officials how interrogators could use the “wet towel” technique, also known as waterboarding, against detainees to extract information.
“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,” Fredman said on Oct. 2, 2002, during a meeting where specific techniques were reviewed and debated, according to the meeting minutes.
Fredman added that the “wet towel” technique would only be defined as torture “if the detainee dies.”
“It is basically subject to perception,” Fredman said. “If the detainee dies you’re doing it wrong.”
Fredman’s comments prompted Lt. Col. Diane Beaver, then the chief military lawyer at the U.S. military base at Guantanamo Bay, Cuba, to respond: “We will need documentation to protect us.”
Beaver also discussed hiding detainees from the International Committee of the Red Cross (ICRC), which visited Guantanamo to ensure interrogators were complying with the Geneva Conventions.
Beaver urged interrogators to "curb the harsher operations while ICRC is around," according to the meeting minutes.
"Officially it is not happening," Beaver is quoted as saying. "It is not being reported officially. The 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."
‘How Did It Come About?’
In opening hearings by the Senate Armed Services Committee on the abusive techniques Tuesday, Chairman Carl Levin said the documents shed light on the administration’s decision-making that led to the abuse of U.S.-held detainees – what became an international scandal when photos surfaced in spring 2004 of naked and abused prisoners at Abu Ghraib prison in Iraq.
"How did it come about that American military personnel stripped detainees naked, put them in stress positions, used dogs to scare them, put leashes around their necks to humiliate them, hooded them, deprived them of sleep, and blasted music?" the Michigan Democrat asked.
"Were these actions the result of 'a few bad apples' acting on their own? It would be a lot easier to accept if it were,” Levin said. “But that's not the case.
“The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality, and authorized their use against detainees. In the process, they damaged our ability to collect intelligence that could save lives."
Apparently seeking to shift the blame away from President Bush and other higher-ups, Sen. Lindsey Graham, R-South Carolina, said the legal advice about brutal interrogation methods will "go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation's military and intelligence community."
The Armed Services Committee’s 18-month investigation, which generated 38,000 pages of documents, singled out Rumsfeld and William “Jim” Haynes II, the Pentagon’s former general counsel, as the officials who sought guidance on implementing more aggressive interrogation methods.
The committee is expected to release a full report later this year. So far, the probe has found that Rumsfeld and Haynes solicited input from military psychologists in July 2002, months earlier than they had previously acknowledged, about developing harsh methods interrogators could use against detainees held at Guantanamo Bay.
The report states that as early as July 2002, Rumsfeld, Haynes and other officials queried military psychologists about the use of waterboarding and other brutal methods to extract information that might not be gained through more conventional interrogations methods.
The questions from Rumsfeld and Haynes were raised one month before John Yoo, a deputy in the Justice Department's Office of Legal Counsel, issued two memos that authorized interrogators to use stress positions, military dogs and other still unknown methods against terror suspects at Guantanamo.
The interrogation methods, which were developed in July 2002, derived from the Army and Air Force’s Survival, Evasion, Rescue, and Escape (SERE) training program, meant to prepare U.S. soldiers for abuse they might suffer if captured by an outlaw regime, not as methods for U.S. interrogations.
The newly released documents don’t square with previous statements made by Haynes, who testified in 2006 that the impetus for the harsh tactics came from below, from lower-level military personnel who asked the Pentagon in October 2002 about using more aggressive techniques against detainees.
Richard Shiffrin, Haynes' former deputy on intelligence issues, told the Senate committee that in July 2002 Haynes became interested in using the SERE techniques, such as waterboarding and sleep deprivation, as a form of interrogation against detainees.
Haynes was grilled by senators, but repeatedly said he could not recall receiving written and oral communications from military attorneys who warned that the methods being implemented at Guantanamo appeared to be illegal.
“We did not operate in a vacuum,” Haynes said in response to questions from Sen. Jack Reed, D-Rhode Island. “The secretary of defense [Rumsfeld] made the final decision” on interrogation methods.
Haynes hired a criminal attorney after he resigned from the Pentagon. He is now an executive at Chevron.
Following the October 2002 meeting with CIA lawyer Fredman, Lt. Col. Beaver, the chief military lawyer at Guantanamo, drafted a legal memo that authorized military personnel to use some of the harshest methods during interrogations at the facility.
Testifying before the Senate Armed Services Committee on Tuesday, Beaver said she was surprised that the Defense Department implemented the interrogation methods contained in her legal opinion.
“I did not expect that my opinion, as a lieutenant colonel in the Army Judge Advocate General's Corps, would become the final word on interrogation policies and practices within the Department of Defense,” Beaver said.
An earlier report by the Justice Department’s inspector general, Glenn Fine, concluded that Rumsfeld authorized the use of brutal interrogation techniques despite warnings from the FBI that the methods were inhumane, possibly illegal and ineffective in producing reliable intelligence.
In October 2002, FBI agents raised concerns with Marion Bowman, the Justice Department’s deputy general counsel in charge of national security, about the methods used during interrogations at Guantanamo Bay, according to Fine.
An FBI agent stationed at Guantanamo then sent the agency an analysis on Nov. 27, 2002, calling into question the legality of the interrogation techniques, stating that the methods used appeared to violate the U.S. anti-torture statute. Bowman then alerted Pentagon general counsel Haynes.
Fine concluded that Rumsfeld, with the support of top White House officials, ignored FBI concerns about the treatment of detainees and signed off on the interrogations in December 2002, insisting the tactics stopped short of torture.
Alberto Mora, general counsel of the Navy, criticized Rumsfeld’s approval of certain interrogation methods outlined in the December 2002 action memorandum.
“The interrogation techniques approved by the Secretary [of Defense] should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture, a degree of mistreatment not otherwise proscribed by the memo because it did not articulate any bright-line standard for prohibited detainee treatment, a necessary element in any such document,” Mora wrote in a 14-page letter to the Navy’s inspector general.
Mora testified Tuesday that the “policy decision to use so-called 'harsh' interrogation techniques during the war on terror was a mistake of massive proportions.”
Mora also took issue with the use of the words “harsh” and “enhanced” to describe interrogations that he believed amounted to torture and a “policy of cruelty.”
“The choice of the adjectives ‘harsh’ or ‘enhanced’ to describe these interrogation techniques is euphemistic and misleading,” Mora said. “The more precise legal term is ‘cruel.’ Many of the ‘counter-resistance techniques’ authorized for use at Guantanamo in December 2002 constitute ‘cruel, inhuman, or degrading’ treatment that could, depending on their application, easily cross the threshold of torture.”
In January 2003, facing questions from the FBI and military lawyers about the brutal methods already in use, Rumsfeld asked Haynes to form a “working group” to draft a report on legally permissible interrogation techniques to use at Guantanamo.
The members of the group included former Undersecretary of Defense for Policy Douglas Feith, officials from the Defense Intelligence Agency, representatives of the Joint Chiefs of Staff, and judge advocate generals (JAGs) from all four branches of the military.
Early drafts of the report advocated intimidating prisoners with dogs, removing prisoners' clothing, shaving their beards, slapping prisoners in the face and waterboarding. Though some of the more extreme techniques were dropped as the list was winnowed down to 24 from 35, the final set of methods still included tactics for isolating and demeaning a detainee, known as "pride and ego down."
Stress positions were prohibited at Guantanamo under Pentagon policy beginning in January 2003. However, Justice Department inspector general Fine said FBI agents’ "observations confirm that prolonged short-shackling continued at Guantanamo for at least a year after the revised DOD policy took effect."
"Short-shackling in which a detainee’s hands were shackled close to his feet to prevent him from standing or sitting comfortably, was another of the most frequently reported techniques observed by FBI agents at Guantanamo. This technique was sometimes used in conjunction with holding detainees in rooms where the temperature was very cold or very hot in order to break the detainees’ resolve,” Fine said.
The more extreme interrogation methods that made it into the final list of administration-approved tactics rankled some of the JAGs, who feared the methods would put U.S. soldiers in danger if they were captured – and would tarnish the reputation and image of the U.S. abroad.
"Will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values,” wrote Rear Adm. Michael Lohr, a member of the “working group," in a February 2003 letter to the working group's chairwoman, Mary Walker, the Air Force general counsel.
“How would such perceptions affect our ability to prosecute the Global War on Terrorism?" asked Lohr.
The admiral was so upset with the draft report and the advice provided by the Justice Department that he requested that Walker include a sentence in the final report making it clear that the legal findings were based exclusively on attorneys in the Justice Department's Office of Legal Counsel, where John Yoo worked.
Lohr was not alone. Maj. Gen. Jack Rives, who at the time was judge advocate general of the Air Force, also wrote a letter to Walker warning that the interrogation techniques in the report would violate military law.
"Several of the exceptional techniques, on their face, amount to violations of domestic criminal law and the [Uniform Code of Military Justice]," Rives wrote. "Treating detainees inconsistently with the [Geneva] Convention arguably ‘lowers the bar’ for the treatment of U.S. POW's in future conflicts."
Maj. Gen. Thomas Romig, an Army JAG, and Brig. Gen. Kevin M. Sandkuhler, a Marine Corps JAG, also voiced concerns, specifically the determination that the President has the power to override the Uniform Code of Military Justice and other federal statutes and international treaties in the name of national security.
Despite the concerns of legal officials in the military community, Rumsfeld signed off on the final 81-page working group report on April 2, 2003.
Rumsfeld, who resigned in November 2006, immediately after Republicans lost control of Congress in the mid-term elections, has vehemently denied that he approved of brutal interrogation methods.