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Intelligence interrogation, U.S., George W. Bush Administration

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Contents

For more information, see: Intelligence interrogation, U.S..
See also: Intelligence interrogation, U.S., review
U.S. interrogation policy in the George W. Bush Administration was based on the Administration position that certain individuals captured in what it termed the war on terror were not entitled to prisoner of war status, which, in turn, allowed the use of interrogation techniques outside the scope of the Third Geneva Convention and other relevant agreements. The legal and political context evolved since the 9-11 attack, partially due to a shortage of trained interrogators and a demand for immediate tactical information, starting in Afghanistan. On February 7, 2002, George W. Bush wrote
"I determined.... that members of al-Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war." [1]

Multiple organizations performed interrogation, often with quite different policies and procedures, especially before 2007:

Policies and practices did not develop at once, but in response to events:

In this article, not all timelines are completely consistent. The date of publication of the various orders and opinions do not always seem in a logical sequence; some guidance for interrogation procedures for Iraq were issued before the equivalent procedures for Guantanamo. Not all legal opinions have been released.[2]

Recent developments

Before the Obama Administration took office, the Justice Department rescinded a number of the main legal opinions written by the Office of Legal Counsel.[3] The Obama administration has ordered the closing of the foreign sites.

Intelligence experts increasingly questioned the emphasis on coercive approaches. One conference concluded "Non-coercive, traditional, rapport-based interviewing approaches provide the best possibility for obtaining accurate and complete intelligence." The participants described the proper approach as analogous to seduction. "For anyone who has been involved in a seduction, it will be immediately clear that coercion simply will not work. What works is the exact opposite – a careful and thoughtful exchange of ideas and attitudes that will help the interrogator find a path to the desired intelligence."[4] This differs with the policies from 2002 to 2007. Such feedback, along with court decisions, led the Bush Administration to modify some policies, and, just before the end of the Administration, to disavow some.

Shortly after taking office, President Obama revoked Executive Order 13440 of July 20, 2007. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by CIA from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order.[5]

The most controversial enhanced interrogation techniques authorized have been argued variously as inside or outside, or in a gray area, of U.S. and international law. President Barack Obama's decision to release documents detailing the methods was a compromise between the views of civil libertarians and intelligence officials.[6] He made the points that

  • "I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer.
  • "...the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release.
  • "First, the interrogation techniques described in these memos have already been widely reported [...] withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

After reviewing the Office of Legal Counsel opinions declassified on April 16, Steven Aftergood, of the Federation of American Scientists' Project on Government Secrecy, commented that "it appears that the OLC authors proceeded not out of sadism or indifference, but out of desperation."[7] See Pressure for results. According to Michael Hayden, former Bush administration Director of the Central Intelligence Agency and Michael Mukasey, former Attorney General, "The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001..."[8] Hayden and Mukasey made the argument "public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them." That argument is not trivial, and needs to be examined in the overall context of interrogation theory. They said "fully half of the government's knowledge about the structure and activities of al Qaeda came from those interrogations...Details of these successes, and the methods used to obtain them, were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006. Any protestation of ignorance of those details, particularly by members of those committees, is pretense."[8]

Obama did say that CIA personnel who had used the techniques would not be prosecuted, and the U.S. would defend any that faced personal legal action. He left open the issue of prosecutions of the legal advisers.[9]

Constitutional authority

In broad terms, the Administration based its initial position on interpretations of Presidential authority, which allowed him to make such determinations in places outside the United States. This was substantially based on a theory that Article II of the United States Constitution, establishing Presidential authority to conduct war, was independent of the Article I authority of the Congress to declare war, and outside the authority of the U.S. judicial system. There were precedents for such interpretations, such as Johnson v. Eisentrager. There were also precedents that could be argued for such authority in the domestic U.S., including ex parte Quirin and Korematsu v. United States. The underlying assumption was that Presidential authority was more general over prisoners in extrajudicial detention than those given prisoner of war status.

The first known legal opinion, following the September 14, 2001 Authorization for the Use of Military Force, is from September 25, 2001, from John Yoo, in the Office of Legal Counsel of the U.S. Department of Justice, to the Associate Counsel to the President, Timothy Flanigan.[10]

Following a cabinet meeting on September 17, 2001, Bush signed a Presidential Finding giving the Central Intelligence Agency much more authority for covert action in counterterrorism, including lethal measures. He authorized a $800-900m emergency budget authorization on the next day.[11] This Finding, however, does not appear to have had details of interrogation techniques. James Risen wrote that the CIA Inspector General never found any evidence the President was briefed on interrogation techniques. Vice-President Cheney and others were briefed, as discussed below, but there may have been a conscious attempt to give the President plausible deniability on interrogation and possibly rendition.[12]

Questions about policy

Soon after the Afghanistan War (2001-) began, the George W. Bush Administration made a policy determination that certain individuals captured there were not "lawful combatants" and thus not entitled to prisoner of war status as defined by the Third Geneva Convention. Donald Rumsfeld issued a memorandum to the Chairman of the Joint Chiefs of Staff denying POW status to members of al-Qaeda and the Taliban.[13]

This was not universally accepted inside the government. Colin Powell, then the U.S. Secretary of State, first pointed out that treating Afghanistan as a "failed state" completely outside the Geneva Conventions would be a reversal of previous U.S. policy that sought to engage the Taliban. Powell rejected the idea that the Conventions would not apply to new kinds of conflict. He challenged the White House Counsel that the President was not being presented with what Powell saw as the main choices:[14]

  1. Declare that the Geneva Convention does not apply to the failed state, but treat all prisoners consistently with the U.S. agreement to the Conventions
  2. Declare that the Geneva Convention does not apply to the failed state, treat all prisoners consistently with the U.S. agreement to the Conventions, but reject prisoner of war status for the all members of al-Qaeda, and Taliban members on a case-by-case basis

Questions about technique

U.S. extrajudicial detention, as a part of a broader counterterrorism approach, had been part of U.S. policy well before the 9-11 attacks, but following events such as the 1983 Beirut barracks bombings, the FBI counterterrorism official Jack Cloonan described the process as being taken out of the judicial system "...by design, because we have declared a war, have we not? " [15] The FBI has been criticized as too focused on the law enforcement process to work effectively on counterterrorism, since agents have been conditioned to use interrogation techniques that can be described in court without causing evidence to be rejected. Cloonan said this could even apply to a military tribunal. This indeed became the case with Susan Crawford, a retired judge and former Army general counsel appointed by the Bush Administration, threw out an indictment as tainted by torture.[16]

LTC Diane Beaver, who was the legal adviser to the interrogation task force commander at Guantanamo, testified that the early interrogation procedures were not well controlled: "Detainees were beaten to death at Bagram, Afghanistan. That happened in December, before the [Secretary of Defense] even had time to get out something [i.e., guidelines], and those detainees were beaten to death."[17]

Legal analysis of interrogation techniques

Much of the timeline about approval of interrogation methods is, so far, documented in legal correspondence and opinions, rather than requests from the field. It may well be that these documents are responses to real field questions, or, alternatively, they may have been initiated by Washington policymakers. The information is not yet available to make this clear.

Inquiry into SERE

The first inquiry about potential enhanced interrogation techniques, to the Joint Personnel Recovery Agency (JPRA), the military organization that conducts SERE training, came from the office of the General Counsel of the Department of Defense in December 2001. The first joint interrogation unit began deploying at the end of November, so it is unclear what interrogation problems had been encountered in the field.[18] Did the General Counsel, William "Jim" Haynes II, initiate this inquiry, or was he doing so in response to either higher-level or military request? This is a key and unanswered question.

Aftergood quoted former CIA Director Michael Hayden, in an MSNBC interview, that the interrogation program “began life as a covert action.” Covert actions require a Presidential Finding, disclosed minimally to 8 key members of Congress, but such a document has not yet been revealed. He said "As a covert action, the program may also have entailed active deception." [7] If there was a Presidential Finding, it might explain the period between the first ABC news reports of CIA interrogation practices in March 2002, and the first Office of Legal Counsel opinions in July and August.

Senior official briefings

Then-Assistant to the President for National Security Affairs Condoleeza Rice[19] were briefed by the CIA in mid-May 2002, regarding the approval of enhanced interrogation on Abu Zubaydah.[20] She gave approval to George Tenet, then the Director of Central Intelligence on July 17, following a meeting on July 13 with CIA lawyers and other Executive Branch staff[21] A Washington Post article goes on to say that Secretary of State Donald Rumsfeld and Secretary of State Colin Powell were not briefed, presumably on the specific CIA techniques since they issued earlier memos on military guidance, until September 2003. [22] Unless other documentation clarifies this, it may be inferred that there were parallel, separate lines between the White House and CIA, and between the White House and Defense Department.

To avoid a requirement for a Presidential finding, which had previously been restricted to covert action, the CIA interrogation requests were determined to be intelligence collection. The first significant decisions surrounded the handling of Abu Zubaydah. Further, while the CIA had previously detained defectors, such as Yuri Nosenko, at length, and, briefly on ships before extraordinary rendition to nations that did the interrogation, in the Clinton Administration, the CIA had no institutional experience with running large detention and interrogation centers.[23]

A key legal opinion for much of the administration's policy is often cited as the (later) August 1, 2002, memorandum from Jay Bybee, Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice went to White House Counsel Alberto Gonzales. [24] This document, however, evolved from earlier opinions and working policies. Declassifications by the Obama Administration in April 2009 now show that Bybee issued more than one document on August 1, 2002; one gave specific guidance to the CIA regarding the intensified interrogation of a specific prisoner, Abu Zubaydah, believed to have critical information. [25] It should be noted that a FBI Supervisory Special Agent, Ali Soufan, involved in Abu Zubaydah's interrogation before the enhanced methods were used, said he was providing actionable intelligence with conventional interrogation. [26] Jack Goldsmith, who took over the OLC in October 2003, questioned and superseded some of these opinions. This was unusual for OLC, whose decisions were often treated as binding precedent. [27]

Legal opinions released in August 2009 regarding CIA guidance, as well as earlier documents showing military policy, highlight the reservations made by the Senate when it ratified the Convention against Torture. These are the basis of authorization of some interrogation techniques that many observers call torture, while others say they are within the letter of U.S. law and were justified under the circumstances. Techniques can be coercive interrogation without crossing the line into torture, and to be torture, a technique does not need to be as dramatic as the iconic thumbscrews and burning irons of the Inquisition. See below for the qualifications with which the U.S. ratified the Convention against Torture, in an effort to make the agreement consistent with U.S. law.


Article 16 of the Convention against Torture

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.[28]

Senate reservation on ratifying the CAT (emphasis added)

That the U.S. considers itself bound by the obligations of Article 16 to prevent "cruel, inhuman or degrading treatment or punishment" only insofar as the term "cruel, inhuman or degrading treatment or punishment" means the cruel, unusual or inhumane treatment punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States


A key concept was that Article 16, with the Senate reservation, is limited to "territory under [United States]] jurisdiction." Guidance to CIA concluded that Article 16 was inapplicable to interrogation not in such territory, but would be constrained by the Federal law defining torture. That law includes the language (emphasis added), according to the opinion, "that a defendant charged with torture 'specifically intend [to] inflict severe physical or mental pain or suffering,' and Congress narrowly defined 'severe mental pain and suffering' to mean 'the prolonged mental harm caused by' enumerated predicate acts, including 'the threat of imminent death' and 'procedures calculated to disrupt profoundly the senses or personality." [24] The italicized words were analyzed in detail in Jay Bybee's memorandum to White House Counsel Alberto Gonzales, and also to CIA General Counsel John Rizzo, both dated August 1, 2002.

Philip Zelikow, then Counselor of the State Department, and having background as executive director of the 9-11 Commission, was briefed on the opinions in 2005.[29] makes three observations now that the relevant material has been declassified. First, overemphasizing waterboarding, which was used on few of the prisoners, distracts from an overall assessment of what he reminds "was a program". Second, "measuring the value of such methods should be done professionally and morally before turning to lawyers...Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results..." The lawyers can "say it might be legal. They don't know about OK." Third, he believed the legal opinions had "grave weaknesses". While Zelikow has a law as well as international relations degree, "My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo."

He summarized his argument as:

  • "the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA's methods;
  • "the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.
  • "the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law -- whatever the alleged gain."

OLC restated policy guidance to the CIA in 2005. [30] The italicized text was interpreted in the context of specific CIA procedures, and, in some cases, decisions about individuals.[25] A April 2008 letter to a member of the Senate Intelligence Committee, from deputy assistant attorney general Brian A. Benczkowski said the policy in effect included “The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act.” [31]

Some of the same principles applied to evolving military guidance, but were somewhat more restrictive.

Impetus to policy change

To understand the development of the guidance, it is necessary first to understand the first efforts in Afghanistan, growing frustration of operational and political commanders with not getting desired information, and the context in which ad hoc decisions were made to use intensified interrogation methods, derived from Survival, Evasion, Resistance and Escape training used by the U.S. military. This training was not intended for interrogation, but was meant to prepare possible U.S. military personnel, captured by enemies that principally intended to coerce confessions, for the stresses they would face. See SERE influences below.

The first opinion assumes a “certain” belief that Abu Zubaydah "is withholding information regarding terrorist networks in the United States...and information regarding plans to conduct attacks within the United States” and that “he refuses to divulge” the information. The CIA judged the threat was “equal to that which preceded the September 11 attacks;” to which OLC responded. “This opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply.”

Evolution of legal structure

See also: Extrajudicial detention, U.S., George W. Bush Administration
See also: Extraordinary rendition, U.S., George W. Bush Administration

Over time, however various U.S. courts ruled parts of these theories of sole presidential authority unconstitutional, as in the 2004 Hamdi v. Rumsfeld decision. One key determination was Bismullah v. Gates, which denied the presumption that Guantanamo Bay detention camp, in the context of prisoner petitions, was outside the jurisdiction of the U.S. court system.

One Percent Doctrine

Vice President Cheney expressed a guiding principle shortly after 9/11:
if there was even a 1 percent chance of terrorists getting a weapon of mass destruction — and there has been a small probability of such an occurrence for some time — the United States must now act as if it were a certainty.[32]

Within that context, Cheney and others believed that it was obligatory on them to use whatever methods might reveal the needed information.

Early Afghanistan Operations

Some of the first U.S. personnel in Afghanistan, possibly before 9/11 (i.e., during the Afghanistan War (1978-92), probably from no earlier than 1997 on in the intermediate Taliban period, and definitely on September 27, 2001, were from the CIA. [33] The CIA, focused on High Value Detainees identified by their longer-term studies in the Counterterrorism Center and elsewhere, may have had different rules for interrogation.

In 2001, United States Central Command (CENTCOM) commander GEN Tommy Franks, requested permission, from the U.S. Secretary of Defense to establish an “interagency coordination cell” and assistance in soliciting participation from national-level agencies. Donald Rumsfeld, U.S. Secretary of Defense authorized a Joint Interagency Coordination Group (JIACG) that October, with authority to work directly with non-military agencies.[34] In November 2001, a JIATF–CT, was formed under BG Gary Harrell; its advance team went to Afghanistan the day after Thanksgiving 2001. This became an interdisciplinary unit with representation from many agencies in the United States intelligence community, United States Special Operations Command, the U.S. Department of State, and law enforcement organizations. It both operated an intelligence-gathering fusion center and Afghanistan’s main interrogation facility at Bagram Airport, JIATF–CT comprised 36 U.S. military, 57 non-DOD, and several British and Australian special forces personnel.

The first prisoners were sent to Guantanamo in January 2002.

Mackey wrote that the guidance, from the intelligence chain of command, to the first interrogators in Afghanistan was strict adherence to the Geneva Conventions, but there was pressure from Special Forces to increase the length of interogation, but not necessarily sleep deprivation. He was told that prisoners tended to start to break after 14 hours, and his Special Forces adviser suggested the number was based on experience. His team interpreted that extended interrogation techniques would not be inhumane as long as a single interrogator kept the same hours, including breaks, as the prisoner. Multiple interrogator techniques were used only when the interrogators all were in the room; they were not used to give the interrogators any rest. He called it "adjusted sleep routine", a phrase found elsewhere in policy documents, and distinguished it from sleep deprivation interrogation techniques; they found more information came from the latter part of an interrogation. Informally, the lengthened periods were called "monstering". [35]

Policy for military operations outside the U.S.

See also: Intelligence interrogation, U.S., George W. Bush Administration/Catalog

After 9-11, the working assumption was that military bases outside U.S. soil are under military, not civilian justice, systems. The initial creation was assigned to military personnel, although the U.S. civilian leadership later changed some initial military assumptions. Karen Greenberg, director of the Center on Law and Security at New York University, said military personnel, in the post-9/11 situation, "chose to follow the rules they knew–primarily, the Geneva Conventions. I can only be speculative here but most likely under the old rules the detainees would have been categorized as prisoners of war under the terms of the Geneva Conventions, which account for all categories of individuals picked up on the battlefield, including civilians...The United States did not hold these routine hearings to establish the detainees’ status as prisoners of war–-so the decision to sidestep the Geneva Conventions seems to have taken place well before prisoners arrived at Guantanamo Bay."[36]

Details of the interrogation techniques are in specific articles, linked to the Catalog principally stays at the level of "name of technique", as the details may be disturbing to some readers; none of the acts described were intended to cause death or permanent injury.

Most interrogation was done by military personnel and subject to Defense Department guidelines. Of these, some, such as simply asking questions, the direct interrogation techniques, are clearly noncoercive. Other techniques, such as Mutt and Jeff and isolation interrogation techniques, were psychologically coercive. Additional "enhanced" techniques including waterboarding and stress positions were authorized on a case-by-case basis; there was no strong theoretical base for these. They were derived, perhaps in desperation, from survival, evasion, resistance and escape (SERE) training, is not intended for the purpose of interrogation, but for resistance to techniques used principally not for extracting accurate intelligence, but for producing coerced confessions of propaganda.
"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."[37]

This testimony also indicates that skilled intelligence interrogators, both in the military and CIA, had retired or went to other work, and not been replaced. The main reserve of interrogation skills were in civilian law enforcement and military criminal investigation, but these communities were very oriented toward operating in a judicial system.

FBI interrogation techniques were not explicitly specified by this administration, but existing FBI policy emphasized the noncoercive. [15] In general, there grew an increasing conflict between the law enforcement personnel involved in counterterrorism, and an ad hoc intelligence model. The latter involved both military and CIA personnel; there also was a difference of opinion among senior military lawyers, and both military intelligence and special operations personnel. There was a Joint (Criminal) Investigation Task Force involving civilian and military law enforcement specialists rather than intelligence personnel.

Pressure for results

Over time, civilian policymakers either pushed military and intelligence interrogators to "get more results" without specifying detail, or, in some cases, providing legal opinions justifying harsher measures. There was a conflict among policymakers, and different factions of both military and Central Intelligence Agency personnel, over the value and appropriate extent of coercive interrogation methods. According to Richard Shiffrin, Deputy General Counsel in the Department of Defense, who had responsibility for intelligence matters, met with Department of Defense General Counsel Jim Haynes in the late spring or early summer of 2002. In discussion with Sen. Carl Levin, Shiffrin said that there was frustration about the level of results from intelligence interrogation.
The sense that I and others had was that DOD had been out of this business for a long, long time, at least since the Vietnam war, and that there wasn't a skilled cadre of investigators/interrogators outside of the law enforcement context, the Air Force Office of Special Investigations and Naval Criminal Investigative Service or Army Criminal Investigation Division (CID). I think those folks, at least Army CID, were already being used for their expertise in trying to develop effective interrogation methods.[38]

SERE influences

COL Steven M. Kleinman, former director of intelligence for the JPRA, the Joint Personnel Recovery Agency, the military organization that conducts survival, evasion, resistance and escape (SERE) training, summarized the intelligence situation after 9-11: the U.S. faced a new kind of enemy, against whom the strengths of technological intelligence disciplines such as signals intelligence, imagery intelligence, and measurement and signature intelligence were not useful; what were needed were human-source intelligence skills directed at interrogating detainees.
A stereotyped caricature of this enemy soon emerged and it did not take long for us to decide that special treatment, including the so-called enhanced interrogation methods, were required, even though those were prohibited by the standards of conduct that we previously adhered to. ...[under 24 to 48 hour time cycle pressure] we erred in simply pressing interrogation and interrogators beyond the edge of the envelope. As a result, interrogation was no longer an intelligence collection method; rather, in many cases it had morphed into a form of punishment for those who would not cooperate... When this proved ineffective in producing the type of actionable intelligence that senior leaders required, ...we had the choice of getting smarter or getting tougher. Unfortunately, we chose the latter. Nonetheless, the intelligence shortfall continued, and operational commanders demanded more intelligence.[39]
It was not an intelligence interrogation organization, and its charter forbade it to engage in interrogation. According to Congressional testimony by its then chief of staff, LTC Daniel J. Baumgartner, Jr.,
In late 2001 (or possibly early 2002), intelligence came to the JPRA's attention that might apply to detainee questioning. We shared that information with the Defense Intelligence Agency (DIA) because their strategic debriefers would most likely be called upon for detainee questioning. ... [He also briefed] the Joint (Criminal) Investigation Task Force located at Fort Belvoir, which worked under the Army.[40]
In response to Senator Carl Levin's question, "Are the physical and psychological pressures, which are designed for use in SERE school for training students, intended to be used against detainees to obtain intelligence?" the JPRA psychologist, Dr. Jerald Ogrisseg, testified
Those techniques are derived from what has historically happened to our personnel who have been detained by the enemy. From those, we derived some learning objectives and some situations to put students through so that we can test their decisionmaking-building, and also use some of those strategies to increase their resistance and the confidence that they would be able to survive if they are subjected to them. It's not the same at all.[41]

According to Kleinman, the special operations community "sought solutions outside the Intelligence Community. With clear memories of their experiences during intensive resistance to interrogation exercises that are a key part of SERE training...To the nonintelligence officer, the transfer of SERE methods from the training environment to real-world operations seemed a logical option. However, several critical factors were overlooked.:

  • many of the methods used in SERE training are based on what was once known as a communist interrogation model; a system designed to physically and psychologically debilitate a person, a detainee, as a means of gaining compliance
  • the model's primary objective was to compel a prisoner to generate propaganda, not provide intelligence
  • Third, it was expressly designed to mirror a program whose methods were considered in the west as violations of the Geneva Convention.

After earlier contacts in December 2001, on July 25, 2002, Shiffrin requested LTC Daniel Baumgartner, then the Chief of Staff at the Joint Personnel Recovery Agency, requested JPRA provide training, on the SERE simulated Communist interrogation methods, for Guantanamo and for Special Operations personnel at Fort Bragg.

CIA interrogation development

The dates of CIA authorizations are not completely clear. ABC News describes preparation in March 2002, and a public statement by the Director of National Intelligence said that the first High Value Terrorist Detainee, Abu Zubaydah, was captured in March 2002. [42] The DNI statement says that senior Congressional leadership was briefed on CIA's detention and interogation programs shortly after 9/11, the full intelligence committees were briefed within weeks, and subsequent briefings were given to staff directors.

In April 2002, CIA officials discussed how best to interrogate Abu Zubaydah. [43] Much guidance on intensifying the interrogation came from two retired government psychologists on contract to the CIA, James E. Mitchell and John "Bruce" Jessen, but who also objected to orders, from CIA, to use the most intense pressure.

According to ABC News, in mid-March 2002, CIA had selected fourteen interrogators and trained them in six techniques, the use of which had to be preapproved by the Deputy Director for Operations. [44] These were used together with sleep restriction and orders for constant movement, although not in stress positions. In the room played "rap artist Eminem's "Slim Shady" album. The music was so foreign to them it made them frantic".

Abu Zubaydah was held in a secret prison in Bangkok, Thailand. The initial interrogation team involved both FBI and CIA personnel. FBI agents Ali Soufan and Steve Gaudin were with the prisoner on his first night, when he went into septic shock. "Soufan, a Lebanese American, later described the FBI's method as 'informed interrogation.' It was based on 'leveraging our knowledge of the detainee's culture and mind-set, together with using information we already know about him,' he told a Senate panel. Gaudin and Soufan dabbed his lips with ice, told him to ask God for strength and cleaned him up after he soiled himself." This led to the first specific piece of information, the identification of Khalid Sheikh Mohammed.

CIA Headquarters sent Mitchell, R. Scott Shumate, a CIA psychologist; two agency officers who worked undercover; and a small team of analysts and support staff, including security personnel to Bangkok. When the prisoner was discharged from the hospital, Soufan and Gaudin were removed from the interrogation, when Mitchell began "creating the atmosphere", starting by forced nudity and low-intensity questioning. Mitchell added sleep deprivation and a constant bombardment of loud music. After each escalation, he would send an interrogator in to ask a single question: "Tell me what I want to know."

According to an official who spoke to the Washington Post, "The program was fully put together, vetted and run by the counterterrorism folks at the agency...CIA headquarters was involved directly in every detail of interrogation. Permission had to be obtained before every technique was used, and the dialogue was very heavy. There were cables and also an IM system. All Mitchell's communications were with the Counterterrorist Center."

A legal opinion from Steven Bradbury of the U.S. Department of Justice, dated May 10, discussed applications of specific techniques to High Value Detainees.[30] If ABC's March date is correct, no document has yet been released showing authorization from outside the CIA, although the DNI statement suggests that there had been at least oral approval as well as notification of Congress.[42] This document divided approved techniques into three categories:

  • Conditioning techniques to wear the detainee down to a “dependent state”
  • Corrective techniques are used to “correct, startle, or ... achieve another enabling objective” All of the corrective interrogation techniques involve physical contact between interrogator and prisoner, but were not intended to cause damage or severe pain.
  • Coercive techniques “place the detainee in more physical and psychological stress”

In the fall of 2005, additional briefings for the Detainee Treatment Act detailed the interrogation techniques.[42]

Some CIA documents were released in response to Freedom of Information Act requests by the American Civil Liberties Union, but are almost completely censored.[45] Nevertheless, several documents contain at least the word "waterboarding". It is almost the only text that appears in the context of an Inspector General review of interrogation techniques used on Khalid Sheikh Mohammed. [46] On March 2, 2009, the office of the U.S. Attorney for the Southern District of New York released a letter, sent to U.S. District Judge Alvin K. Hellerstein, acknowledging that the CIA had destroyed 92 videotapes of "enhanced interrogations". Judge Hellerstein is addressing the ACLU requests; a criminal investigation is in progress by the U.S. Attorney for the Eastern District of Virginia. [47] On March 9, the CIA said that 12 of the 92 tapes included enhanced interrogation techniques. [48]

Established military interrogation doctrine

Existing military guidance stated constraints in international law. In the most recent unclassified document, consistent with earlier [de]classified and unclassified guidance, an interrogator is allowed to use ruses of war to build rapport with interrogation sources, which may include posing or “passing himself off” as someone other than a military interrogator. However, the collector must not pose as:

  • A doctor, medic, or any other type of medical personnel.
  • Any member of the International Committee of the Red Cross (ICRC) or its affiliates. Such a ruse is a violation of treaty obligations.
  • A chaplain or clergyman.
  • A journalist.
  • A member of the the civilian government, such as a Member of Congress. [49] These were relaxed quickly, as in the false flag interrogation techniques, which are not necessarily coercive; false flags, apparently of friendly nations, are common intelligence tradecraft for recruiting spies.

Attempts to improve Guantanamo production

In March 2002, MG Dunlavey requested a review of JTF 170 procedures by COL (Ret.) Stuart Herrington, a counterintelligence and interrogation officer with experience in Vietnam and West German, as well as against Soviet penetration agents in the U.S. At the time of his visit, JTF 160 and 170 were still separate, and he was concerned that the military police doctrines were not always conducive to the interrogation efforts. While he said that the intelligence personnel lacked training in strategic interrogation, and there were critical deficiencies in Arabic language, he also said "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 [i.e., interrogators] 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 ..." He recommended that military police not be present in interrogation rooms, and that shackling could be counterproductive.

Another report, in April, with details redacted in the Senate report, came from COL Mike Fox (SOUTHCOM's Director of Intelligence Operations); it agreed conditions were not conducive to interrogation.[50]

Expansion of military guidance

For more information, see: Intelligence interrogation, U.S., George W. Bush Administration/Catalog.

In 2002, requests to approved intensified interrogation came from the staff at Guantanamo, and were eventually approved by Secretary of State Donald Rumsfeld in April 2003.[51] While they requested SERE-derived techniques, they were not approved in his 2003 guidance. He revised this guidance in 2004, for operations in Iraq.

Rumsfeld, however, was not privy to the CIA approvals of SERE-derived techniques until later in 2003. [22] The preliminary legal memos from the Department of Justice's Office of the Legal Counsel went to the White House and CIA, not to the Office of the Secretary of Defense. Yet there were discussions and documents on SERE from the General Counsel of the Department of Defense, William "Jim" Haynes II, as early as December 2001. SERE personnel briefed USSOCOM personnel in September, if not earlier; some of the Guantanamo October requests derive from those discussions. Rumsfeld's April memo went to USSOCOM and Guantanamo. In August 2002, JPRA set up a special program to advise some organization on SERE techniques, but its identity is redacted in the Senate documents. CIA is one possibility, but, if it was not CIA, it might have been USSOCOM; USSOCOM definitely received briefings in September. No documents have been released showing senior Defense Department guidance to USSOCOM; it literally is unknown what the policies were, if any, guiding the SMU TF in Afghanistan.

Haynes told the Senate Armed Service Committee that he had been reviewing SERE because he "may have been 'asked that information be given to the Justice Department for something they were working on.'...but 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"[52] It is not at all impossible that senior government lawyers consulted between departments, and this related to the OLC work, not anything in DOD.

It may be inferred, but is not definitely known, if all these techniques, with the approval and guidance caveats, were approved for use at facilities other than Guantanamo, but the existence of guidance strongly suggests that A-Q were approved, as does Mackey's description of their use in Afghanistan.[35] The Befuddled Interrogator is not in Rumsfeld's memo, but, since listed by Mackey, was probably a standard and approved method.

In no guidance, however, do the humiliation methods used by guards at Abu Ghraib prison appear. The techniques used on Abed Hamed Mowhoush, at a forward interrogation center, which resulted in his death, do not appear in either military or CIA guidance.

JTF 170 Requests

Some of the more coercive techniques, apparently from derived from JPRA briefings on SERE methods, needed the approval of a general or senior civilian official. The most extensive list of military-approved coercive techniques were in a October 11, 2002 memorandum from LTC Jerald Phifer, staff intelligence director for JTF 170.
"The use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family"[53]

This was approved up the chain of command through through MG Michael Dunlavey, the Guantanamo interrogation task force commander, up to Rumsfeld, with various legal reviews along the way. Approval of the use of some methods, after Rumsfeld's policy approval, may have been delegated to the Commander, United States Southern Command. Military techniques in Iraq, at times, followed different but closely related techniques; the more coercive methods required the preapproval of LTG Ricardo Sanchez, the field commander at the time.[54]

Phifer's memorandum broke the techniques into Roman numeral categories, representing the intensity of the technique, from I as mildly to III as strongly coercive; see techniques in Intelligence interrogation, U.S., George W. Bush Administration/Catalog. This memo was reviewed and approved by the JTF Staff Judge Advocate (legal officer), LTC Diane Beaver.[55] and recommended to the Commander of USSOUTHCOM by MG Michael Dunlavey. Dulavey was of the opinion that these were necessary to overcome increased resistance, but he believed they would not violate U.S. or international law. [56]

Beaver's memo did say that some of the acts could be violations the Uniform Code of Military Justice (UCMJ), and it would "advisable to have permission or immunity in advance from the convening authority for military members utilizing these methods. She also said she prepared the memo over the Columbus Day weekend and repeatedly requested, but did not receive, senior legal review, nor did she receive review or discussion from MG Dunlavey. CAPT Jane Dalton, Legal Counsel to the Joint Chiefs of Staff, who later raised significant objections, said she did not remember a request from Beaver.[57]

Review of JTF 170 Request

USSOUTHCOM commander Hill forwarded the request on October 25, saying "he believed Categories I and II techniques were "legal and humane," but he was uncertain about techniques in Category III and was "particularly troubled by the use of implied or expressed threats of death of the detainee or his family." He wanted Defense and Justice Department legal review of these techniques. LTC Mark Gingras, a USSOUTHCOM legal officer, testified that Hill's attorneys had concerns about Category II and III.[58]

The Plans and Policy Directorate (J-5) of the Joint Staff, on October 30, sent it to the military services, asking for their legal review.

  • Air Force, November 1: ...."serious concerns regarding the legality of many of the proposed techniques" ... "some of these techniques could be construed as 'torture,' as that crime is defined by 18 U.S.C. 2340.'. They did not believe evidence gained through Category III methods would be admissible.[59]
  • Navy, November 4: "concur[red] with developing a range of advanced counter-resistance techniques," but with "a more detailed interagency legal and policy review be conducted on the ... proposed techniques."[60]
  • Marines, November 4: ""several of the Category II and III techniques arguably violate federal law, and would expose our service members to possible prosecution."
  • Army, November 7:"Army interposes significant legal, policy and practical concerns regarding most of the Category II and all of the Category III techniques proposed."[61]
When she received the October 11 request, "CAPT Jane Dalton, the Legal Counsel to the Chairman of the Joint Chiefs of Staff (CJCS), said it was 'obvious to [her] that there were some legal issues' with the request...she found LTC Beaver's legal analysis "woefully inadequate" and said it relied on a methodology and conclusions that were "very strained"'". She was told, by Department of Defense General Counsel William "Jim" Haynes II,
According to CAPT Dalton, after she and her staff initiated their analysis, CJCS GEN Myers directed her to stop that review. CAPT Dalton said that GEN Myers returned from a meeting and "advised me that [DoD General Counsel] Mr. Haynes wanted me ... to cancel the video teleconference and to stop" conducting the review because of concerns that "people were going to see" the GTMO request and the military services' anaysis of it. According to CAPT Dalton, Mr. Haynes "wanted to keep it much more close hold." When CAPT Dalton "learned that [the DoD General Counsel] did not want that broad based legal and policy review to takeplace," she and her staff stopped their review. This was the only time that CAPT Dalton had ever been asked to stop analyzing a request that came to her for her review.[62]

Approvals

Secretary of Defense Donald Rumsfeld established a Working Group for legal review in January 2003.

He approved, with some procedures requiring prior or approval or at least higher-level notification, in April 2003.[51]These were generally based on those in standard military intelligence documents. The memo did not include the SERE-derived methods.

He revised his approvals in 2004.

Guantanamo operations

For more information, see: Guantanamo detention camp.

The George W. Bush Administration established the Guantanamo detention camp, at the Naval Station Guantanamo Bay in Cuba. A general principle of U.S. laws is that military bases outside U.S. soil are under military, not civilian justice, systems, although this was partially upset, specifically for Guantanamo, in the Hamdan v. Rumsfeld Supreme Court decision.

Reporting to United States Southern Command (USSOUTHCOM), the camp was made up two organizations: separately commanded detention (TF 160) and intelligence interrogation (TF 170) task forces. Later, at first for reasons of simplified adminnistration, these were combined into Joint Task Force-Guantanamo (JTF-GTMO).

Merger

USSOUTHCOM also established the Joint Interagency Interrogation Facility (JIIF), designated Joint Task Force 170 (JTF 170) on January 22 and immediately began interrogations focused on intelligence collection, force protection, and planned terrorist activities. This interrogation effort also supports law enforcement agencies, and tribunal efforts.

Horton also observed that MG (U.S. Army Reserve) Michael E. Dunlavey, the commander of JTF 170, outranked the detention force commanders (Lenhart and later Baccus). In principle, Dunlavey, an intelligence rather than police specialist, reported to USSOUTHCOM, but actually had a direct line of communication to Rumsfeld. [36]

Policy Changes

In the summer of 2002, GEN Jack Keane, Vice Chief of Staff for the U.S. Army, visited GTMO; and found quality of intelligence gathered unsatisfactory finding "... the police are guarding the detainees, and the interrogators are trying to get information out of them, and the two never work together towards common objectives." unified command. [63] It certainly is reasonable to have a common senior leadership, but, as discussed above, police and intelligence approaches to information gathering are different.

After subsequent problems such as Abu Ghraib, it became clear that while the intent of Army regulations were that military police did not take part in intelligence interrogation, the current versions, applicable when Keane made his assessments, were not clear on the subject.[64]

Intensified interrogation request

On October 11, 2002, MG Michael Dunlavey, JTF-170 commander, requested permission to intensify interrogation methods, including the Category III methods described above. [56] His legal officer, Beaver, assumed that Bush could also decide that the Uniform Code of Military Justice did not apply, and thus that torture-like methods could be utilized. Beaver testified to Congress that she gave her best opinion, in a situation where her command was under heavy time pressure, but "I fully expected that it would be carefully reviewed by legal and policy experts at the highest levels before a decision was reached. I did not expect that my opinion, as a lieutenant colonel in the Army Advocate General's Corps, would become the final word on interrogation policies and practices within DOD. "[65]

Rumsfeld approved some, but not all, the requests, in some cases reserving methods for situations where he personally gave prior consent. [66]

Reports of methods

Various reports of detailed interrogation records have been made, although verification is a challenge for what were usually anonymous leaks. One record, according to Time, was confirmed by the Department of Defense, that of Mohammed al-Qahtani, [67] alleged to be the "20th hijacker" for the 9-11 attack, who was denied entry to the U.S. by immigration officers, was a high-priority target and had strong methods authorized. Other reports, not necessarily naming the same suspect, are highly consistent with the Time story; the magazine said it had the full 84-page log. The log terminology reflects some standard interrogation theory, such as the goal of inducing a sense of futility. One specific example states "He is beginning to understand the futilityof his situation ... He is much closer to compliance and cooperation than at the beginning of the operation," which followed his being given 3.5 liters of intravenous fluid, refused access to a toilet, and told to urinate in his clothing.

Individuals detained in the U.S.

See also: Jose Padilla

At least one U.S. citizen, Jose Padilla, was arrested in the U.S. and then transferred from law enforcement to military custody. Another citizen, Yaser Hamdi, was captured in Afghanistan while fighting with the Taliban, and sent to U.S. military custody in the U.S. Jack Goldsmith found the detention of Padilla to be legally marginal, but that Hamdi's custody was lawful although he questioned "whether it was prudent to do so."[68] The Supreme Court partially affirmed the detention in Hamdi v. Rumsfeld.

In 2002, Padilla was arrested by the FBI, as a material witness for an investigation of a potential dirty bomb. A subsequent opinion from Jay Bybee, Assistant Attorney General for the Office of Legal Counsel, stated that the military had the authority to detain him "as a prisoner captured in an international armed conflict", in part based on ex parte Quirin, which also involved individuals captured on U.S. soil. Padilla, as opposed to Quirin et al., was an American citizen. Also, the memo determined that the Posse Comitatus Act did not apply to such captures, since the context was warfare rather than civilian law enforcement. [69] The Supreme Court, however, rejected this argument in Rumsfeld v. Padilla. His subsequent handling, resulting in court charges in 2007, went from the noncoercive FBI approach, to a coercive special case of an American citizen in the U.S. but in a coercive nonjudicial system, and eventually to judicial proceedings. The opinion was repudiated by the Office of Legal Counsel in January 2009, before the Obama Administration took office.

Jack Cloonan of the FBI cited the value of Behavioral Science Consultation Teams (BSCTs) in planning the early establishment of rapport with Padilla. They advised "You know what he needs? He needs a father figure," leading to Cloonan being selected as the preferred interrogator, because he was the oldest man on the FBI team.

Proxy interrogation

Under the Bush Administration, the United States interpreted its obligations under the Convention against Torture[28] to be applicable only to activities taken in U.S. territory, not in foreign operations. [70] Not all transfers to a state are for purposes of interrogation, but sometimes simply to end the U.S. role of keeping an individual in custody. In some cases, while the U.S. is aware the country may torture, there are cases where the United States detains someone it strongly believes to be a terrorist, no state has filed criminal charges against him, and his state of nationality is much better positioned than the United States to interrogate him, given issues related to language and knowledge of networks, clan structures, and culture."[71]

Development of Afghanistan operations

In December 2002, two prisoners died during interrogation at Bagram. CPT Carolyn Wood, operations officer of the interrogation unit, responded, when alerted that her unit might be going to Kuwait to participate in the invasion, with a number of requests for guidance to prevent abuses there. LTG Dan McNeill, commanding U.S. forces in Afghanistan, had a study group evaluate interrogation methods in use, which was forwarded to CENTCOM on January 24, 2003. It included requests to use "mild physical contact". LTG Ricardo Sanchez wrote that it indicated most of the Guantanamo Category I-III techniques had been used. [72]

On January 27, 2003, McNeill received the report of the investigation into the deaths. It indicated that methods had gone well beyond the Geneva Conventions. Twenty-eight soldiers in the XVIII Airborne Corps were named as suspects in torture and death. McNeill requested guidance from CENTCOM, the Chief of Staff of the Army, and the Joint Chiefs of Staff.

Once large-scale U.S. forces were in Afghanistan, an additional U.S. Army task force, based in Kandahar, conducted basic interrogations of prisoners, to obtain information of immediate value to tactical commanders there, and to select those of significant intelligence interest. The latter group would be sent to the strategic interrogation center at Guantanamo; field interrogators were told to select al-Qaeda personnel, Taliban leadership, and "non-Afghan Taliban/foreign fighters; and any other who may pose a threat to U.S. interests, may have [strategic] intelligence value, or may be of interest for U.S. prosecution." In some cases, the Army interrogators in Afghanistan, objected because they were close to getting tactically useful information, but the decision on transfer to Guantanamo were made at a higher level. Mackey said, however, there was an advantage to sending long-term prisoners out of Afghanistan; if they were seen, in reasonable condition. by new arrivals, the fear of bad treatment was reduced.[73] MG Dunleavy, however, complained that prisoners of no strategic value were being sent to Guantanamo. One of the basic rules was that any Arab was sent, even those that had been injured and could not communicate.[74]

Final decisions on the high-value prisoners were made by a board at United States Central Command forward headquarters in Kuwait. That group had representation from U.S. Army intelligence, the Federal Bureau of Investigation, Army military police, and the Central Intelligence Agency and other civilian intelligence organizations.[75]

The CIA had its initial Afghanistan interrogation and detention center center at Bagram, then in a facility called the "Salt Pit" in Kabul, which was demolished by 2005. A new facility was established at Bagram, then moved elsewhere.[76] It also had representation at the military facilities in Bagram and Kandahar.[77]

Iraq War

Several different organizations interrogated in Iraq:

Preparation

Before the start of the war, there had been considerable targeting of Ba'ath Party officials for detention and interrogation, although interrogation preplanning was not evident. The 55 prime candidates' pictures and biographies were put on a deck of playing cards distributed to troops.[79] These prisoners were taken by military authority in a war zone. They were interrogated by U.S. and allied personnel, but except for the few cleared of guilt, eventually turned over to the new Iraqi government several years later.

In contrast, in the preparation for the Second World War occupation of Germany, Operation RANKIN, there was a thick volume of several tens of thousands of Nazi Party members and their presumed risk, an in-place denazification mechanism for rehabilitating those running the fire service and the water system, and a Constabulary security police of tens of thousands of soldiers. There were also preformed counterintelligence and military government organizations, and the evidence-gathering mechanism for war crimes tribunals of yet-unknown form.

Sanchez said that while CPT Carolyn Wood had asked, in Afghanistan, for guidance on how to prevent the interrogation abuses that had taken place at Bagram, leading to deaths, there "had been no guidance, no new interrogation procedures, and no training...everybody was too busy focusing on the invasion."[80]

Start of war

During the initial high-intensity combat phase of the war, beginning on March 10, 2003, CENTCOM Land Forces Component (CFLCC), under LTG David McKiernan, formed an intermediate headquarters between CENTCOM and the corps headquarters that managed the tactical land battle, or Phase III of the overall plan. U.S. Army V Corps (LTG [[William Wallace | William "Scott" Wallace) and I Marine Expeditionary Force (LTG James Conway).

At the start of the Iraq War in March 2003, there still were no overall policies for interrogators, with conventional forces, beyond FM 34-52. Supplementary guidance had been issued in Afghanistan, in January adding some of the Guantanamo techniques. As opposed to the conventional forces, the JSOC Special Mission Unit (SMU) Task Force (TF) in Iraq had a policy that was the same as JSOC used in Afghanistan, established in February 2002.

"Phase IV"

JTF-7 did not receive an intelligence brigade until July. No interrogation policy for conventional forces was established until September 2003. That September 2003 policy was also influenced by techniques authorized for use at GTMO.[81]

Legislation and opinions

Some of the Bush Administration determinations about prisoners taken in Afghanistan, and later in Iraq and elsewhere, were overruled by the United States Congress, in the Detainee Treatment Act and in Rasul v. Bush.

In the spring of 2004, CIA Inspector General John Helgerson advised Director of Central Intelligence, Porter Goss, that some of the interrogation techniques in use, even if not considered torture, might violate the Convention against Torture. That convention, ratified with reservations in 1994, bans not only torture, but bans lesser abuses if they are "cruel, inhuman or degrading." The report, according to unnamed sources that spoke to the New York Times, addressed techniques used three dozen terror suspects being held in secret locations around the world, in particular, Khalid Sheikh Mohammed.[82]

In the summer of 2004, the administration disavowed the August 2002 opinion by Jay Bybee[24], and released, in December 2004, a new opinion approved by James B. Comey, then the deputy attorney general, explicitly rejected torture and adopted more restrictive standards to define it.[83] It had a footnote, however, about the "treatment of detainees" under still-classified directives, meaning that the 2002 policy could still be used in selective cases.

Iraq Survey Group

ISG interrogated high-level Iraqi figures, such as former members of the government. Some of those had been captured by the SMU TF or conventional units. From the onset, ISG, which its own interrogation staff, had concerns about the SMU TF's treatment of detainees.[84]. On August 8, MG Dayton also issued an order that CIA personnel not be allowed to interrogate ISG prisoners without his staff being present, although accounts differ whether this concerned potential abuse, or an issue of responsibility for intelligence. CIA officials said it reinforced a cable sent by the C.I.A's Baghdad station to headquarters on July 16, 2003. That cable expressed concern that SMU TF personnel, on joint teams, had used techniques that had become too aggressive.[85]

Interrogation rules of engagement

Some of the procedures established in Afghanistan, as well as Guantanamo, which were outside current Army doctrine, were used in early Iraq War operations. LTC Beaver testified she accompanied MG Miller on a trip to Iraq, in August or September 2003, to advise LTG Sanchez on detainee and interrogation. Beaver said she was "certainly surprised when I saw [CPT Carolyn] Captain Wood in Iraq, who had been the [Military Intelligence] MI commander at Bagram when the two detainees were beaten to death.[86]

In August 2003, according to the New York Times, the officer-in-charge of the Joint Interrogation and Debriefing Center, CPT Carolyn Wood, issued a list of approved coercive techniques that went well beyond the "rules of engagement" later approved by LTG Sanchez. Beaver told the Senate Committee that Wood showed me an SOP that she had written that contained techniques and that she said the lawyers had approved. So I went up the legal chain of [COL Mark Warren, CJTF7 legal officer]'s to see who had approved these, because I knew, in a Geneva setting, it was potentially a problem, and I brought that to the attention of Colonel Warren."

Wood had brought interrogators from Afghanistan to work in Iraq. The JIDC, formally established on Sept. 20, was not part of the cellblock where the highly publicized abuses by guards took place. She reported to LTC Steven Jordan, the 519th Military Intelligence Battalion commander. [87]

Also in August, a junior officer in the CJTF-7 C2X office (HUMINT and counterintelligence) asking for a "wish list" of techniques with the comment "the gloves are coming off."

Preliminary policy

Sanchez had issued unsigned interrogation guidance on on Sept. 10 and Sept. 28, and signed directives on Sept. 14 and Oct. 12, all of which were different. The September 10 draft, according to COL Marc Warren, the chief legal officer at Multi-National Corps-Iraq, added sensory deprivation, which could be done with hoods. The September 14 document added "sleep management" and stress positions, with limitations: 4 hours sleep in 24, and forced standing or crouching for up to 60 minutes. Col. Warren said that the October revision narrowed these measures, bringing them into compliance with the Third Geneva Convention. It allowed measures such as long-term isolation of a prisoner only with Sanchez' approval. Note that isolation was in Rumsfeld's list of techniques permitted with his approval.

The Oct. 12 directive also ordered that interrogators take control of the 'lighting, heating, and configuration of the interrogation room, as well as food, clothing and shelter' given to those questioned at Abu Ghraib, a Senate aide said. The memo directed interrogators to work closely with military police guarding the prisoners to 'manipulate internees' emotions and weaknesses' to gain their cooperation."

A poster with the Sanchez-approved techniques included all of the techniques in Rumsfeld's April 2003 memo, but went beyond them. The additional methods, requiring his approval, were:[54] An anonymous source told the Public Broadcasting Service that Sanchez' chart did not list "a number of techniques that were in use at the time: removal of clothing, forced grooming, hooding, and yelling, loud music and light control. Given the detail otherwise noted ... the failure to list some techniques left a question of whether they were authorized for use without approval." Sanchez also specified, as controls:

  • "Techniques must be annotated in questioning strategy
  • "Approaches must always be humane and lawful
  • "Detainees will NEVER be touched in a malicious or unwanted manner
  • "Wounded or medically burdened internees must be medically cleared prior to interrogation
  • "The Geneva Conventions apply within CTF-7 [Sanchez' command]"

Some of the humiliation methods later seen in the Abu Ghraib cellblock clearly violated the controls.

Incidents after policy

Abed Hamed Mowhoush was an Iraqi Major General, under Saddam Hussein. He surrendered in November 2003, after his sons were in custody, and died while undergoing interrogation in December 2003. The autopsy report designated the death a homicide, secondary to asphyxia and chest compression.[88] His interrogators believed that Mowhoush had knowledge about the role of Ba'ath Party leadership in the Iraqi resistance.

He was interviewed in a tactical environment, not at a strategic interrogation center, under the direction of CWO2 Lewis Welshofer. Welshofer, an interrogator assigned to the 3rd Armored Cavalry Regiment, who had responded to the August "wish list" memo with
Today's enemy, particularly those in [Southwest Asia], understand force, not psychological mind games or incentives. I would propose a baseline interrogation technique that at a minimum allows for physical contact resembling that used by SERE schools (This allows open handed facial slaps from a distance of no more than about two feet and back handed blows to the midsection from a distance of about 18 inches. Again, this is open handed.) ...Other techniques would include close confinement quarters, sleep deprivation, white noise, and a litany ofharsher fear-up approaches. . . fear of dogs and snakes appear to work nicely. I firmly agree that the gloves need to come off.[89]

On November 10, Welshofer questioned Mowhoush without coercion, but, according to an interview with Mowhoush's son, Welshofer's approach changed late in the same week. He bound Mowhoush and slapped him in front of Iraqi detainees, to, in Welshofer's words, "to show Mowhoush who was in charge."[90]

MAJ Jessica Voss, Welshofer's commanding officer, testified that she refused permission to use methods including slapping prisoners during interrogation, but she had approved restraint with a sleeping bag, although forbidding interrogators to sit on the bagged prisoner. [91] Rejali states that Welshofer then gave the prisoner to a CIA officer, "Brian" and Iraqi personnel, who beat him into unconsciousness. It is not known if "Brian" was one of the 14 CIA trained interrogators.[92] The Iraqi members of the CIA team, however, were members of the Scorpions (Iraq War) organization.

Welshofer was fined but received no prison time. [93] The issues involved include whether he was authorized to use methods that bordered on, or were, torture; if he was trained in using them with the minimum possible risk; if his overall approach to interrogation was sound. He was convicted but given a light sentence, partially in recognition that his orders were ambiguous. The Washington Post reported he had received a reprimand; his attorney argued that he had been ordered to use harsh techniques and had received conflicting orders. [94]

Abu Ghraib

It is worth noting that the currently controversial "torture photos" are applicable to Abu Ghraib, not to principally CIA interrogation programs. There is a separate inquiry, in U.S. Federal Court, about destruction of CIA "torture tapes"

For more information, see: Abu Ghraib prison.

The original command structure that affected the prison was that all operations were under LTG Richard Sanchez, commanding Joint Task Force 7, the initial military field organization for the occupation of Iraq. Reporting to Sanchez' staff, including his staff intelligence officer, MG Barbara Fast, were the 800th Military Police (MP) Brigade under BG (U.S. Army Reserve) Janis Karpinski, and an Military Intelligence (MI) command under COL Thomas Pappas.

After his work in Guantanamo, then-MG Miller was transferred to detainee operations in Iraq. While he first discussed his work in broad terms, he was associated with the attempts to pressure detainees at Abu Ghraib prison.[95] According to a report by investigative journalist Seymour Hersh, who first publicized the situation, Miller had recommended, “Detention operations must act as an enabler for interrogation . . . to provide a safe, secure and humane environment that supports the expeditious collection of intelligence,”[96]

Karpinski's command, however, had responsibility for all military police activities in Iraq, not just the prison. The prison cellblock was run by a unit two levels below her, the 372nd Military Police Company of the 320th Military Police Battalion.

A series of press reports later broke regarding interrogation tactics and prisoner treatment at Abu Ghraib; MG Anthony Taguba was ordered to investigate. [97] MG Taguba, in his report, said Sanchez' decision to put the prison under the control of the 205th Military Intelligence Brigade was an unwise decision, because it “effectively made an MI Officer, rather than an MP officer, responsible for the MP units conducting detainee operations at that facility. This is not doctrinally sound due to the different missions and agenda assigned to each of these respective specialties.” He also criticized Miller's assumptions about priorities, saying "the intelligence value of detainees held at...Guantánamo is different than that of the detainees/internees held at Abu Ghraib and other detention facilities in Iraq....There are a large number of Iraqi criminals held at Abu Ghraib."[96]

With the caveat that the method had been preapproved, assuming case-by-case approval at the three-star CJTF7 level, Testimony indicated that Pappas personally ordered pressure techniques including the use of dogs. According to a military prosecutor, MAJ Matthew Miller, Pappas approved a request from interrogators to use dogs on three resistant detainees, "admitted he failed to ask" LTG Sanchez for approval as the CJTF7 procedures required.[98]

In addition to Central Intelligence Agency programs, Secretary Rumsfeld established a Special Access Program (SAP) codenamed COPPER GREEN, for interrogating prisoners, at Abu Ghraib prison amd elsewhere. In general, U.S. intelligence programs are in the Sensitive Compartmented Information (SCI) compartment run by the United States intelligence community, not the Department of Defense. Placing a program into SAP, however, may, in some legal opinions, exempt it from Congressional oversight required for SCI programs.

Its methods were criticized as inappropriate for a structured military counterinsurgency, in a zone of substantial control, rather than for the early activity in Afghanistan. Alfred McCoy cited a former intelligence officer as saying "No way. We signed up for the core program in Afghanistan — preapproved for operations against high-value terrorist targets — and now you want to use it on cabdrivers, brothers-in-law, and people pulled off the street." The CIA withdrew from the program.[99]

Changes and review

For more information, see: Intelligence interrogation, U.S., review.

Given that interrogation is part of intelligence, and intelligence is a sensitive area with publication restrictions, it is harder to find information on current practices, especially when they are not producing scandals triggering press and Congressional investigation. Some books and articles have been published, which both went through military security review, but seem generally accepted by journalists and analysts, and also have some external validation, such as the fact of the successful attacks on confirmed al-Qaeda targets. The interrogator names and unit identities are often pseudonymous, but there may be circumstantial corroboration. The accounts tend to be more plausible when they describe successful information gathering based on interrogation methods not unique to this time period, but that have been seen to be effective in earlier conflicts. Some current programs appear to be consistent with proposed reforms suggested by COL Kleinman in his September 2008 testimony to the Senate Armed Forces Committee. Kleinman spoke of two recent criteria, a legal framework for realistic rights of detainees, which does limit coercive measures. [100], and a conference, by interrogation experts from intelligence and law enforcement, sponsored by Human Rights First.[101]

The most effective reforms appear to have started in Iraq, driven by tactical realities rather than the legal battles at Guantanamo and other areas far from a battlefield. One account, How to Break a Terrorist, explains the human-source intelligence that led to the attack that killed the leader of al-Qaeda in Iraq, Abu Musab al-Zarqawi. It is plausible in that it describes the interrogation strategies and choices of noncoercive techniques, along with the intelligence analysis, in a joint military quick-response interrogation center in early 2006. In this center, there was, at last, a critical mass of interrogators, closely working with analysts, who focused on methods that were primarily noncoercive. [102]

Executive Order 13440

With Executive Order 13440, President George W. Bush reaffirmed, in July 2007, his determination "that the Military Commissions Act of 2006 defines certain prohibitions of Common Article 3 for United States law, and it reaffirms and reinforces the authority of the President to interpret the meaning and application of the Geneva Conventions." He approved CIA programs that:[1]

  • Do not torture, as defined by 2340 of title 18USC2340 or constitute other acts defined by 18USC2441
  • Violate the Military Commissions Act of 2006 or the Detainee Treatment Act
  • Are applied to an alien detainee, who is determined, by the Director of the Central Intelligence Agency (DCIA) "to be a member or part of or supporting al Qaeda, the Taliban, or associated organizations; and [is] likely to be in possession of information that:
    • could assist in detecting, mitigating, or preventing terrorist attacks, such as attacks within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror with the United States, or their armed forces or other personnel, citizens, or facilities; or
    • could assist in locating the senior leadership of al Qaeda, the Taliban, or associated forces"
  • Are determined, by the DCIA, "based upon professional advice, to be safe for use with each detainee with whom they are used
  • Provide detainees in the program receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.

References

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