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INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY-- REPORT OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE |
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(U) In the final week of 2003, the OLC notified the Department of Defense that the March 14, 2003 OLC legal opinion, upon which DoD had been relying for interrogations, was being withdrawn. [1136] According to the then- Assistant Attorney General for the OLC Jack Goldsmith, the March 2003 memo was one of a "short stack" of OLC opinions that his OLC colleague Patrick Philbin had identified, shortly after Mr. Goldsmith arrived at DoJ, as problematic and possibly containing "serious errors." [1137] Also included in that "short stack" were the two August 1, 2002 "Bybee" memos - the "First Bybee" memo, which presented OLC's narrow interpretation of what constituted torture under U.S. law and the "Second Bybee" memo, which included OLC's "advice to the CIA regarding potential interrogation methods." [1138] (U) After reviewing the opinions, Mr. Goldsmith identified two that he ultimately rescinded, the March 14, 2003 "Yoo Memo" (withdrawn in December 2003) and the August 1, 2002 "First Bybee" memo (withdrawn in June 2004). [1139] (U) Mr. Goldsmith told the Committee that he called Jim Haynes in December 2003 and told him the March 14, 2003 OLC opinion was under review and could not be relied on by the Department. [1140] That opinion had been presented to the Working Group as the controlling authority for all questions of domestic and international law and was the legal foundation for the Secretary's April 2003 authorization of techniques for GTMO. Mr. Goldsmith told the Committee that he informed Mr. Haynes in December 2003 that he had determined that only 20 of the 24 techniques authorized by Secretary Rumsfeld were lawful, and that the remaining four techniques were under review. [1141] Mr. Goldsmith also advised Mr. Haynes in December that the Department should come back to OLC for additional legal guidance before approving any technique not among those 24 specifically identified in the Secretary's April 2003 memo. [1142] Mr. Goldsmith told the Committee that Mr. Haynes did not inquire about the use of additional techniques during his tenure at OLC, which ended in June 2004. [1143] [Delete] Notwithstanding the late December direction from the head of the OLC that DoD could not rely on the March 14 2003 OLC memo a March 26, 2004 memorandum for the record suggested that [big delete]." [1144] The frequent flyer program involved moving a detainee every few hours from one cell to another to disrupt their sleep. [Big delete]. [Delete] Continuous cell transfer was discussed at least as early as August 2003. An August 3, 2003 email from GTMO's ICE Operations Officer described interrogating a detainee for 15 hours, allowing him 5 hours of uninterrupted rest in his cell and then moving the detainee to a new cell every half hour until the 24 hour period expired whereby, according to the Operations Officer the cycle would restart and "the fun begins again." [1146] (U) According to an FBI agent who was on assignment to GTMO in fall 2003, the agent received a briefing "that non cooperative detainees could be placed on a list for a specific interrogation technique involving interruption of sleep pattern, called the 'frequent flyer program." [1147] The agent stated that detainees were moved with all of their personal belongings and that the duration of the program for detainees "seemed to depend on the cooperativeness of the detainee." [1148] In fact, an investigation by the Department of Justice Inspector General found that "many FBI agents described a program of sleep disruption employed by the military as designed to disorient detainees and thereby obtain their cooperation, which was known as the 'frequent flyer program." [1149] (U) Keeping detainees awake except for a period of four-hours of uninterrupted sleep using "Continuous cell transfer" or other means was not on the list of 24 techniques OLC advised the DoD General Counsel were permitted. The Committee is unaware of a request from DoD to OLC for legal guidance on whether that technique comported with techniques on that list of 24 approved by the Secretary. _______________ Notes: 1136. Goldsmith, The Terror Presidency at 153-54. 1137. Ibid. at 142; Committee staff interview of Jack Goldsmith (February 4, 2008). 1138. Committee staff interview of Jack Goldsmith (February 4, 2008); Sixth Decl. of Marilyn A. Dorn, ¶ 56, American Civil Liberties Union, et al. v. Department of Defense, et al., No. 04-Civ. 4151 (January 5, 2007). 1139. Assistant Attorney General Goldsmith said that his personal standard for rescinding prior OLC memos was to rescind opinions only after he determined they were legally flawed and he could affirmatively provide guidance on "precisely what interrogation practices were legally available under a proper analysis." Goldsmith reiterated the second part of this standard when asked if he considered withdrawing the third "problematic" opinion, known as the "Second Bybee" memo. He told the Committee that he had not completed his analysis of the Second Bybee memo by the time he submitted his resignation and left the Department. Committee staff interview of Jack Goldsmith (February 4, 2008); Goldsmith, The Terror Presidency at 152. 1140. In his book, Goldsmith stated that he placed the call between Christmas and New Years 2003. Goldsmith, The Terror Presidency at 153. 1141. In his interview with Committee staff, Mr. Goldsmith said he eventually determined that all 24 were lawful. That account differs slightly from Goldsmith's account in his book, in which he said that he told Mr. Haynes in December that all 24 techniques were lawful. Ibid. at 154; Committee staff interview of Jack Goldsmith (February 4, 2008). 1142. Committee staff interview of Jack Goldsmith (February 4, 2008). 1143. Ibid. 1144. Schmidt-Furlow Report at 10. 1145. Memo for Record, Continuous Cell Transfer (Frequent Flyer Program) (March 26, 2004). 1146. Email from Maj. James Rogers to COL Jack Farr (August 3, 2003). 1147. FBI Electronic Communication from Administrative Services (SAAPU) to Inspection Division (July 15, 2004). 1148. Ibid. 1149. DoJ IG Report at 183.
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