illegal under the Geneva Conventions. The strategies are partly based on tactics used by Chinese Communists during the Korean War to gain false confessions. The Senate report cites the deputy commander of the Joint Forces Command (JFCOM), the Joint Personnel Recovery Agency (JPRA)’s higher headquarters, saying that “the expertise of JPRA lies in training personnel how to respond and resist interrogations—not in how to conduct interrogations.”
The wisdom of the Senate report was not available on September 16, 2002, when, following up on the earlier assistance, a group of military interrogators and behavioral scientists from Gitmo went to JPRA, in Ft. Belvoir, Virginia, for SERE training. On September 25, 2002, a delegation of senior Bush administration lawyers, including Jim Haynes and David Addington, along with John Rizzo and Michael Chertoff, then with the criminal division of the Justice Department (later director of Homeland Security), traveled to Gitmo for discussions on how interrogations should be run.
On October 2, 2002, the chief counsel to the CIA’s Counterterrorism Center met with Gitmo staff. The Senate Armed Services Committee report notes: “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.”
By the time the CTC chief counsel was giving this briefing, CIA contractors interrogating Abu Zubaydah had already been employing the aggressive techniques that I had [6 words redacted] objected to, and which FBI director Robert Mueller had ordered his agents not to use. But when Mark Fallon and other members of CITF, and the FBI, tried to gain access to the September 25 and October 2 meetings, to argue against the use of aggressive interrogation techniques, they were turned away. It appeared to CITF members that a decision had been made to employ harsh techniques, and the Bush delegation didn’t want to hear any contrary opinions. It was a strange situation, with lawyers giving orders on how interrogations should be run, and experienced practitioners not allowed to offer their views.
Following these meetings, on October 11, General Dunlavey sent a memo to his military superior, Gen. James Hill, requesting authorization for aggressive interrogation techniques. There were three progressively harsh categories. Category I included yelling at the detainee and allowing the interrogator to claim he was the citizen of a foreign country known for the harsh treatment of detainees. Among Category II techniques were the use of stress positions, isolation, twenty-hour interrogations, the removal of clothing, and the use of phobias (such as fear of dogs) to induce stress in the detainee. Category III techniques included scenarios designed to make the detainee believe that imminent harm was about to befall either him or his family, and the use of water to induce the “misperception” of suffocation. The techniques were defended in a legal memo by then Lt. Col. Diane Beaver, the senior-most lawyer at Guantanamo.The request passed through General Hill’s office up through the chain of command and landed on Jim Haynes’s desk for his recommendation to Donald Rumsfeld, then secretary of defense.
The way the legal system in the military worked was that lawyers from all services could offer opinions, but ultimate legal authority rested with the defense secretary’s general counsel. The Senate report details various objections that different services had to the techniques. The Marine Corps, for example, stated that several techniques “arguably violate federal law, and would expose our service members to possible prosecution,” and called for “a more thorough legal and policy review.”
Ignoring the warnings, Haynes sent a one-page memo to Secretary Rumsfeld on November 27, as the Senate report notes, “recommending that he approve all but three of the eighteen techniques in the GTMO request.… Mr. Haynes’s memo indicated that he had discussed the issue with Deputy Secretary of Defense Paul Wolfowitz, Undersecretary of Defense for Policy Doug Feith, and General Myers and that he believed they concurred in his recommendation.”
On December 2, 2002, Secretary Rumsfeld signed the recommendation, adding a handwritten note at the bottom of the page regarding limits on the use of stress positions: “I stand for 8–10 hours a day. Why is standing limited to 4 hours?”
While Secretary Rumsfeld only officially approved the techniques on December 2, some were already being introduced in early October, after the Bush administration lawyers and the CIA’s CTC general counsel left the base. Dogs were used to intimidate Qahtani and he was put into stress positions. Later a host of much more aggressive techniques were used on him over a period of three months. These included, according to the Senate Committee, being stripped naked and “made to wear a leash and perform dog tricks.”
When Mark Fallon was shown the proposed interrogation plan for Qahtani by members of the military command at Gitmo, he said that it was “illegal” and that he would recommend that CITF members be barred from taking part in the interrogations.
“It can’t be illegal, the secretary of defense authorized it,” was the reply.
“The secretary of defense doesn’t have the ability to change the law. He can’t determine what is legal and illegal.”
Fallon’s boss, Brittain Mallow, initially disagreed with him: while he was completely opposed to the techniques, he thought that CITF agents could go in as observers and temper what the military interrogators did. Fallon’s response was unequivocal: “It will put agents in a bad position. Either they’ll watch the law being broken, or, as sworn law enforcement officers, seeing laws being broken, they may try to arrest the military interrogators. Nothing good can come of this.”
Mark Fallon, a New Jersey native from a family of law enforcement officials, found himself in a position he had warned his staff members about during their orientation. “Even if I give you an illegal order,” he told them, “you can’t follow it. You are bound by the Constitution. Remember that at Nuremberg we prosecuted Nazis who claimed just to be following orders. And remember in the United States there are no secrets, only delayed disclosures. One day, whether one year away or ten years away, people will be looking at what we did, so make sure you act with the utmost integrity.” He told Mallow that he would resign from CITF and from the government, if necessary, if Mallow authorized CITF agents to sit in on harsh interrogations. Mallow saw the wisdom in Fallon’s logic and ordered CITF personnel not to take part in any interrogation in which harsh techniques were being used. This angered General Miller, who lambasted the CITF commanders: “You either are with us or you are against us, and your guys are out.”
Like Fallon, NCIS chief psychologist Mike Gelles objected to what the military interrogators were doing, and together they went to see NCIS director David Brant. He agreed with them and they spoke to Alberto J. Mora, the navy’s general counsel. Mora told them: “I don’t understand how they can be doing these things. You guys are the ones with the interrogation experience. I suggest you go back to Gitmo and try talking to General Miller.”
Fallon and Gelles flew to Gitmo to see General Miller and again explained their objections. Based on their experience dealing with terrorists, they told him, these techniques didn’t get results. Furthermore, they were illegal under U.S. law. Miller dismissed them: “You have got to put on the same jersey if you want to be on the team.”
“Listen, General,” Fallon replied, “we don’t work for you. We’ve got a separate chain of command. We’re not going to participate and will continue to oppose these techniques.”
When Mora learned of the conversation, he contacted Jim Haynes a few times to object to the use of the techniques. At one point, the Senate report states, he told Haynes that he thought the techniques authorized by Rumsfeld “could rise to the level of torture.” Haynes ignored Mora’s warnings.
Having failed to get Haynes or his superiors in the Pentagon to listen, on January 15, 2003, Mora drafted a memo saying that the techniques were clearly illegal and sent it to Haynes, warning him that he’d sign the memo by the end of the day unless the use of the techniques ended. A senior administration lawyer calling what the administration was doing “illegal” would cause serious problems; Rumsfeld, later that day, signed an order rescinding his approval of the techniques.
Mora’s victory was short-lived, however. In March 2003, Rumsfeld secretly reauthorized twenty-four techniques, at which point Mora had left the navy for private practice.
The Pentagon, at the time of this back-and-forth, declared that Qahtani’s questioning was “worthwhile,” and a spokesman from the Defense Department said that he was “a valuable source of information.” Unnamed Bush administration officials told reporters that his interrogation provided information about planned attacks and the financial networks used by terrorists.
Later, when the techniques were no longer being used, I was asked to go back to interrogate Qahtani because basic information was still missing. Despite claims of success, not only did those employing the harsh
