“If the Detainee Dies, You’re Doing it Wrong”

When former Defense Secretary Donald Rumsfeld approved the use of harsh techniques, he did so over the objections of senior military attorneys from all branches of the armed services. Before the Senate Armed Services Committee, key players in the drama that led to the use of torture in Guantanamo answered questions.

Over the objections of senior lawyers across the military, former Secretary of Defense Donald Rumsfeld, acting on the advice of Department of Defense General Counsel William “Jim” Haynes, approved the use of 15 harsh interrogation techniques requested by officials at the U.S. detention center at Guantanamo Bay, Cuba, to be used on alleged “enemy combatants.”

Rumsfeld’s December 2, 2002, decision has been widely reported, but the fact that the techniques he approved were heavily questioned just one month earlier — including by senior military officials in the Army, Navy, Air Force, and Marines — was revealed at a Tuesday hearing before the Senate Armed Services committee.

“While it has been known for some time that military lawyers voiced strong objections to interrogation techniques in early 2003,” said committee Chairman Carl Levin, D-Mich., “these November 2002 warnings from the military services — expressed before the Secretary of Defense authorized the use of aggressive techniques — were not publicly known before now.”

At the hearing, former defense officials, including Haynes and Richard Shiffrin, former deputy general counsel for intelligence, as well as retired Lieutenant Colonel Daniel Baumgartner, faced tough questioning from Democratic members of the panel about their roles in institutionalizing those very techniques. According to documents distributed by the committee, Shiffrin, acting on Haynes’ behalf in 2002, called upon Baumgartner to provide defense attorneys with a list of harsh interrogation methods — specifically, methods deployed against American soldiers during training to prepare them for the possibility that they may one day be captured by a torturing regime. Both Shiffrin and Baumgartner denied knowing that the information they provided to Haynes would be used as the basis for detainee interrogations in three countries. Haynes said he could not recall the details of his role in the process.

Also testifying on Tuesday was retired Lieutenant Colonel Diane Beaver, who in October 2002 penned a legal opinion in which she “concluded that certain aggressive interrogation techniques…were lawful.” “I have been vilified by some because of it,” she told the panel, “and discounted and forgotten by many others.”

Under questioning from Sen. Lindsey Graham, R-S.C., about the legal soundness of her memo, Beaver, whose writings greenlighted the use of techniques like waterboarding and sleep deprivation, demurred. “If I asked you if the UCMJ [Uniform Code of Military Justice] prohibited waterboarding, what would you say?” asked Graham, a former attorney for the Judge Advocate General of the Air Force. “It’s difficult to say,” Beaver responded.

In that memo, though, Beaver writes that, in order to circumvent various legal prohibitions to techniques like waterboarding, “[i]t would be advisable to have permission or immunity in advance from the convening authority, for military members utilizing these methods.” Nonetheless, her opinion, which panelist and former Navy General Counsel Alberto Mora described as “an inadequate treatment of very serious and sensitive issues,” met almost no opposition from civilian and military officials and, for a short time, became the legal basis for the DOD’s use of harsh interrogation tactics. In his testimony before the committee, Mora referred to the techniques as “cruel,” saying they “could easily rise to the level of torture.”

During a brief recess, I asked Mora how the U.S. government can mitigate the harm done to the country by these policies, and how best to hold the architects accountable for their actions. Mora suggested that the government leaders need to “create a common language with our allies that goes beyond the protections of Geneva,” referring to the United Nations Agreements on Human Rights known as the Geneva Conventions. How to hold former public officials accountable for implementing these methods, he added, “is a difficult question. Politically speaking, achieving an agreed-upon framework with our allies going forward may require forgiving past transgressions. And that’s a concern. That’s a problem.”

In his opening statement — an unusually long and thorough statement for a congressional hearing — Levin provided an exhaustive history of the origins of the government’s program of torturing prisoners at Guantanamo Bay — a program that later spread to Afghanistan, and finally to Iraq.

In 2002, senior Pentagon officials, including Shiffrin, sought and received information from the Defense Department’s Joint Personnel Recovery Agency about techniques used in the military’s Survival Evasion Resistance and Escape training schools, or SERE. At those facilities, members of the military are subjected to mock interrogations, to prepare them for the possibility that they’ll one day be captured and detained by governments that do not adhere to the Geneva Conventions.

The schools’ training guidelines — which, at some facilities, include waterboarding — quickly became the practical basis for the department’s own methods of interrogating prisoners at Guantanamo Bay. Under questioning from Sen. Joe Lieberman, I-Conn., Shiffrin admitted that “there was probably some discussion at some point about ‘reverse engineering’ SERE techniques.” And, indeed, on December 30, 2002, two Navy SERE instructors arrived in Cuba to teach approximately two dozen interrogation personnel how to question detainees. Some of those trained by the SERE teachers were later instructed by their own superiors not to use those methods. Others were not.

Once greenlighted for use in Guantanamo, the SERE techniques were forwarded to U.S. military officials in Afghanistan and shown to interrogators in January 2003, just one month after Rumsfeld approved them. Several weeks later, after the Iraq war had begun, the techniques became standard operating procedure for all U.S. forces there, including those stationed at Abu Ghraib.

A month after he approved them, Rumsfeld rescinded his approval of the 15 techniques, at least in part because of objections Mora brought to Haynes. But, just as quickly, Rumsfeld established a “working group” to examine interrogation techniques and erect a legal framework that would protect military and defense officials from reprisals in the event that their conduct was later deemed to be torture. Shortly after the working group completed its report, Rumsfeld authorized another set of techniques — 24 in all– and this time he included some wiggle room: “If, in your view,” the secretary wrote, “you require additional interrogation techniques for a particular detainee, you should provide me… a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee.”

It’s difficult, therefore, to know precisely what limits governed DOD-approved interrogation for months thereafter. But if the DOD took the advice of the Central Intelligence Agency, there may have been very few. On October 2, 2002, senior CIA attorney Jonathan Fredman met with staff at Guantanamo Bay to discuss harsh interrogation. “It’s basically subject to perception,” Fredman said, according to minutes of the meeting. “If the detainee dies, you’re doing it wrong.”

See more tagged with: civil liberties, government accountability, iraq, senate armed services and torture

The Stuff Congressional Hearings Are Made Of

Divulged in memos, but largely undiscussed at yesterday’s bombshell Senate Armed Services hearing about the origins of American torture, was a September 25, 2002, meeting at Guantanamo Bay, Cuba, between Major General Michael Dunlavey — who at the time was overseeing interrogations at the detention facility there — and several of the administration’s top lawyers, including William “Jim” Haynes, then general counsel to the Department of Defense, John Rizzo, acting CIA general counsel, David Addington, counsel to the vice president, and Michael Chertoff, then head of the Criminal Division at the Department of Justice.

The trip report is suspiciously short. It notes for the most part that the group received “briefings on Intel successes, Intel challenges, Intel techniques, Intel problems and future plans for facilities,” and that its members participated in “private conversations.”

But, through interviews with Dunlavey and Lieutenant Colonel Diane Beaver, author Philippe Sands got to the bottom of that trip. In his new book, Torture Team, Sands writes that the Washington gang came down, in part, to learn how the military was treating a suspect named Mohammed al-Qahtani. “They wanted to know what we were doing to get to this guy,” recalled Dunlavey. Beaver said that the message was loud and clear: do “whatever needed to be done.” In Sands’s words, “a green light from the very top — from the lawyers for Bush, Cheney, Rumsfeld and the CIA.

That message was crucial, because just one week later, on October 2, nine people, including Beaver and CIA attorney John Fredman convened at Guantanamo for a “Counter Resistance Strategy Meeting,” where they discussed the implications of the green light, asking questions like, “What techniques can we use?” and, “What constitutes torture?” The answers — written up in meeting minutes and obtained by the Senate Armed Services committee — are pretty straightforward.

“We may need to curb the harsher operations while ICRC [the International Committee of the Red Cross] is around,” Beaver told the group, according to the minutes. “It is better not to expose them to any controversial techniques.”

One attendee, Dave Becker, who oversaw interrogations for the Defense Intelligence Agency, noted, “We have reports from Bagram [Airfield in Afghanistan] about sleep deprivation being used.”

Beaver responded, “True, but officially it is not happening. 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.”

Fredman later chimed in, “Under the Torture Convention, torture has been prohibited by international law, but the language of the statutes is written vaguely. Severe mental and physical pain is prohibited. The mental part is explained as poorly as the physical…. It is basically subject to perception. If the detainee dies you’re doing it wrong…. When the CIA has wanted to use more aggressive techniques in the past, the FBI has pulled their personnel from the theatre. In those rare instances, aggressive techniques have proven very helpful.”

To which Beaver responded, “We will need documentation to protect us.”

Fredman also provided a constitutional rationale for the aggressive interrogation techniques — a pre hoc justification for the United States to abuse all enemy combatants, supposedly without falling afoul of the Geneva conventions. “The Torture Convention prohibits torture and cruel, inhumane, and degrading treatment. The US did not sign up on the second part, because of the 8th amendment…. This gives us more license to use more controversial techniques.”

In response, Beaver asked about the applicability of the “wet towel” technique, known now to most as waterboarding. Fredman responded, “If a well-trained individual is used to perform this technique 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.”

When Mark Fallon, then the deputy commander of the Defense Department’s Criminal Investigation Task Force, received the minutes of the meeting from Sam McCahon, his chief legal advisor, he wrote, “This looks like the kinds [sic] of stuff Congressional hearings are made of…. Talk of ‘wet towel treatment’…would in my opinion; [sic] shock the conscience of any legal body looking at using the results of the interrogations or possibly even the interrogators. Someone needs to be considering how history will look back at this.”

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Torture Overseas

The ACLU–conducting more oversight these days than Congress and the mainstream media combined–has gotten a hold of some previously unreleased documents detailing the torture of detainees at Guantanamo Bay and other overseas facilities. Here (PDF file), for instance:

[Wisam] Abd-Al-Rahman described his reported period of detention in Afghanistan from January 2002 until April 2003 as moving from ‘one American prison to another’, staying in cold, dark, and crowded rooms. He said he stayed, without charges or interrogation, with nine other persons in a 25 square foot room without sunlight and fed only bread and rice for a period of about 77 days. He said that sanitary and hygiene conditions were terrible, and that he did not receive medical care nor see the sun during the period of detention in Afghanistan. He also reported sleep deprivation, undressing in front of female soldiers, desecration of the Koran by a dog, beatings, and threats of harm from barking dogs while blindfolded.

Abd-al-Rahman was later found to be innocent.

Here’s a series of accounts (PDF file) of the deaths of four detainees killed in captivity in Iraq.

Here’s a list of talking points (PDF file) about torture, as conveyed in a State Department cable transmission. Note that the people who received them were warned that they should “not be given to non-usg [U.S. Government] persons or left behind after meetings.”

And there’s plenty more that I haven’t read through yet. Give them a look yourself, and I’ll post anything interesting I come across as I peruse them.

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Total Online Awareness

New questions have arisen about what, exactly, the government hopes to surveil. On Monday, Kenneth Wainstein, the Assistant Attorney General for National Security spelled it out:

At the breakfast yesterday, Wainstein highlighted a different problem with the current FISA law than other administration officials have emphasized. Director of National Intelligence Mike McConnell, for example, has repeatedly said FISA should be changed so no warrant is needed to tap a communication that took place entirely outside the United States but happened to pass through the United States.But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA’s current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because “essentially you don’t know where the recipient is going to be” and so you would not know in advance whether the communication is entirely outside the United States.

Ryan Singel at Wired magazine thinks there’s something to this. “That would make sense,” he writes, “since email doesn’t go directly to a device in most cases, it goes to a server that holds the email until the recipient(s) come to pick up the email — which could be and often is from different parts of the world — think of any business traveler.”

And indeed, that would seem to be a big problem. Back in August 2007, an extremely large, bipartisan majority in Washington sought to make an extremely small, technical change to FISA to account for the fact that the NSA can’t know, a priori, where the recipient of a call will be located: Under the theoretical terms of the agreement, the NSA would be allowed to listen to calls of foreign origin making their way through a U.S. switch. If the recipient happened to be in a foreign country, surveillance could continue unmolested. If the recipient happened to be located in the U.S., then the NSA could either continue surveillance with a warrant, or minimize the data.

The email situation is, as Singel points out, much more complex. But there’s another reason to think that Total Email Awareness is the goal of this FISA fight, and that is that Director of National Intelligence Mike McConnell has said so himself. In a lengthy New Yorker profile last month, McConnell described the coming surveillance wars to reporter Lawrence Wright:

One day in May, at a meeting with the President and several cabinet members, McConnell asked for authority to wage information warfare against the tech-savvy insurgents in Iraq. First, he described the three aspects of information-warfare operations. Computer-network exploitation—that is, the theft or manipulation of information—is done by the N.S.A. Computer-network attacks are the province of the Department of Defense. The third element, computer-network defense, was not the specialty of any agency. According to someone who was in the Oval Office, McConnell then said, “If the 9/11 perpetrators had focussed on a single U.S. bank through cyber-attack and it had been successful, it would have an order-of-magnitude greater impact on the U.S. economy.” The President blanched and turned to the Secretary of the Treasury, Henry Paulson. “Is that true, Hank?” he said. Paulson said that it was. The President then charged McConnell to come up with a security strategy, not only for government systems but also for American industry and private individuals.One proposal of McConnell’s Cyber-Security Policy, which is still in the draft stage, is to reduce the access points between government computers and the Internet from two thousand to fifty. “The real question is what to do about industry,” McConnell told me. “Ninety-five per cent of this is a private-sector problem.” He claimed that cyber-theft accounted for as much as a hundred billion dollars in annual losses to the American economy. “The real problem is the perpetrator who doesn’t care about stealing—he just wants to destroy.” The plan will propose restrictions that are certain to be unpopular. In order for cyberspace to be policed, Internet activity will have to be closely monitored. Ed Giorgio, who is working with McConnell on the plan, said that would mean giving government the authority to examine the content of any e-mail, file transfer, or Web search. “Google has records that could help in a cyber-investigation,” he said. Giorgio warned me, “We have a saying in this business: ‘Privacy and security are a zero-sum game.’ ”

With the cyber-security initiative, McConnell is asking the country to confront a dilemma: Americans will have to trust the government not to abuse the authority it must have in order to protect our networks, and yet, historically, the government has not proved worthy of that trust. “FISA reform will be a walk in the park compared to this,” McConnell said. “This is going to be a goat rope on the Hill. My prediction is that we’re going to screw around with this until something horrendous happens.” [Emphasis mine]

I’ll make some inquiries about this, but at a glance the FISA fight may just be a bankshot way for McConnell to kick off his sweeping internet spying program while bypassing, for now, the proverbial goat rope.

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No Hearing for Rodriguez…Yet

Jose Rodriguez, Jr., the former Director of the National Clandestine Service who in 2005, over the alleged objections of then-CIA chief Porter Goss, destroyed two videotaped interrogation and torture sessions, has managed to delay his appearance before the House Intelligence committee. Rodriguez has been subpoenaed by the committee–chaired by Rep. Silvestre Reyes (D-Tx.)–but is refusing to appear without a grant of immunity. His attorney is conducting negotiations with House counsel, but the delay comes at a time when the congressional inquiry into the destroyed tapes is being stymied on a number of fronts, and when Reyes may not be too excited about the idea of granting immunity. Stay tuned.

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How Government Snoops Get a Direct Line to Consumer Data

Last week’s revelation that Verizon readily opened phone logs to the feds should come as no surprise. The firm is a standout example of the revolving door between government and telecom.

It seemed like shocking news last week when the telecommunications giant Verizon admitted it has readily allowed warrantless national security investigators to browse customer records on thousands of occasions. But given the revolving door between the telecom industry and federal government, no one should be surprised by their cozy relationship.

According to OpenSecrets.org, a Web site run by the Center for Responsive Politics in Washington, D.C., the worlds are well connected : There are no shortage of government officials who once worked in the telecommunications industry, and no shortage of telecommunications industry execs who once worked for the government.
Read the full report…

See more tagged with: civil liberties, Randal Milch, Verizon, warrentless wiretapping and William Barr

The Democrats’ House of Pain

Congressional Democrats plotted for weeks how they could rewrite the surveillance bill Bush shoved past them this summer. But the battle was barely rejoined when the minority Republicans once again took control and scuttled their bill. 

When the House Democrats prepared to reign in the administration’s surveillance program Wednesday morning, Virginia Republican Eric Cantor knew just what buttons to push to make them panic. He announced a poison pill amendment: Nothing in the bill, Cantor wrote, “shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization … from attacking the United States or any United States person.”
Read the full report…

See more tagged with: civil liberties, FISA, Rep. Nancy Pelosi and wiretapping