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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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IV. GTMO Seeks Authority to Use Aggressive Interrogation Techniques (U) A. GTMO Requests Counter-Resistance Techniques Influenced by SERE (U) (U) On October 11, 2002, just days after the JTF-170 moved Khatani back to the Navy Brig and shortly after meeting with the Chief Counsel of the CIA's CounterTerrorist Center Jonathan Fredman, LTC Phifer submitted a memorandum to JTF-170 Commander MG Dunlavey requesting approval to use "counter-resistance" interrogation techniques. [437] LTC Phifer's memo was largely drawn from the October 2, 2002 memorandum that the GTMO Behavioral Science Consultation Team (BSCT) had written upon their return from the JPRA training at Fort Bragg. [438] The memo requested approval for three categories of progressively more aggressive interrogation techniques, many of which were similar to techniques used at SERE schools to increase U.S. soldiers' resistance to illegal enemy interrogation. [439] (U) Of the three categories of proposed techniques, those in Category I were the least aggressive. Category I proposed yelling at the detainee and using certain "techniques of deception," such as using multiple interrogators or having an interrogator "identify himself as a citizen of a foreign nation or as an interrogator from a country with a reputation for harsh treatment of detainees." [440] (U) The proposed Category II techniques were more aggressive and included several techniques similar to those used in SERE schools, such as stress positions, isolation, deprivation of light and auditory stimuli, using a hood during transport and questioning, removal of clothing, and using detainees' individual phobias to induce stress. [441] [Delete] An August 19, 2002 email from LTC Beaver reflected discussions among JTF-170 staff about stress positions, which she said resulted in an agreed upon policy of "no stress positions" at GTMO. [442] When asked how stress positions came to be included in LTC Phifer's memo, given the agreement referenced in her earlier email, LTC Beaver said that she did not know, but added that LTC Phifer later advocated for their use. [443] LTC Beaver said that she relied on Mr. Becker and LTC Phifer to decide which techniques to put in the memo and that she never commented or changed their drafts. [444] (U) The proposed Category III techniques in the October 11, 2002 request were the most aggressive and included the use of scenarios designed to convince the detainee that death or severely painful consequences were imminent for him and/or his family; exposure to cold weather or water; the use of a wet towel and dripping water to induce the misperception of suffocation; and the use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing. [445] According to the October 11, 2002 memo, Category III techniques "and other aversive techniques, such as those used in U.S. military resistance training or by other U.S. government agencies" would be utilized to interrogate "exceptionally resistant detainees," which LTC Phifer estimated as "less than 3%" of the detainees held at GTMO. [446] (U) Two of the Category III techniques in LTC Phifer's memo - the use of phobias and the use of the wet towel and dripping water to induce the misperception of suffocation - were not derived from the October 2, 2002 BSCT memo. [447] CIA lawyer Jonathan Fredman, however, had reportedly discussed both of these techniques during his October 2, 2002 meeting with GTMO personnel, noting that the use of phobias was "very effective" and that the use of the "wet towel technique" makes a body react as is if it's suffocating. [448] Mr. Becker told the Committee that he (the ICE Chief) may have recommended adding those two techniques to the request for authority. [449] (U) LTC Phifer said that he drafted his memo with Mr. Becker. [450] Mr. Becker, however, told the Committee that he was provided a draft only after it was nearly complete. He said that he thought the techniques memo was "stupid," though he did not share his view with LTC Phifer at the time. [451] LTC Phifer told the Committee that he was uncomfortable with the idea of using some of the techniques in his memo but that MG Dunlavey pressured him to finish the request. [452] B. GTMO Staff Judge Advocate Conducts "Legal Review of Aggressive Interrogation Techniques" (U) (U) The October 11, 2002 techniques memo was accompanied by a cover memo and legal brief written by GTMO's Staff Judge Advocate (SJA) LTC Diane Beaver. The cover memo stated simply that ''the proposed strategies do not violate applicable federal law." [453] (U) LTC Beaver told the Committee that she drafted the legal brief with her staff over the course of the 2002 Columbus Day weekend. [454] She told the Committee that she had not seen either of the legal memoranda produced by the Department of Justice Office of Legal Counsel on August 1, 2002 and that she did not receive input on the legal brief from anyone outside of GTMO. The minutes of the October 2, 2002 meeting with CIA lawyer Jonathan Fredman, however, reflect that LTC Beaver was present when he discussed the Torture Convention (and the federal law implementing the treaty). In that discussion, Mr. Fredman described "severe physical pain" as "anything causing permanent damage to major organs or body parts." [455] The idea that "severe physical pain" constituting torture had to rise to the level of "organ failure, impairment of bodily functions or even death" had been discussed in the OLC legal memo of August 1 2002, known as the First Bybee memo. [456] (U) LTC Beaver began her analysis of the "aggressive" techniques by stating that the "detainees currently held at Guantanamo Bay ... are not protected by the Geneva Conventions." [457] LTC Beaver stated that the Office of the Secretary of Defense "had not adopted specific guidelines regarding interrogation techniques for detainee operations at GTMO" and she dismissed the longstanding guidance on interrogation of detainees contained in the Army Field Manual (FM) 34-52 as not binding. [458] (U) In her memo, LTC Beaver stated that U.S. obligations under the Convention Against Torture restricted only those cruel, inhuman, or degrading acts that were also prohibited by the "current standard articulated in the Eighth Amendment" against "cruel and unusual punishment." [459] The memo concluded that the proposed interrogation techniques would be consistent with the Eighth Amendment standard so long as any force used could "plausibly have been thought necessary ... to achieve a legitimate governmental objective and it was applied in a good faith effort and not maliciously or sadistically for the very purpose of causing harm." [460] (U) LTC Beaver also concluded that the proposed interrogation techniques would not violate the federal anti-torture statute so long as they were not specifically intended to cause severe physical pain or suffering or prolonged mental harm. LTC Beaver conducted her analysis with the "assum[ption] that severe physical pain [would not be] inflicted" and "absent any evidence that any of these strategies [would] in fact cause prolonged and long lasting mental harm." [461] LTC Beaver told the Committee that she did not conduct any research to determine whether the use of the techniques described in the accompanying request for authority would, in fact, result in long-term mental harm. [462] [Delete] [delete] The October 2, 2002 BSCT memo, however, had specifically cautioned that the techniques "could affect the short term and/or long term physical and/or mental health of the detainee ... [and that] physical and/or emotional harm from the ... techniques may emerge months or even years after their use." [463] (U) LTC Beaver also found that some of the proposed tactics would constitute a "per se violation" of the Uniform Code of Military Justice (UCMJ) Article that prohibits military personnel from committing assault, and could violate the Article that prohibits military personnel from communicating a threat. [464] As a result, LTC Beaver said it would be "advisable to have permission or immunity in advance from the convening authority for military members utilizing these methods." [465] In a November 4, 2002 letter to the Joint Staff J-5, the Marine Corps commented on the SJA's recommendation to convey "permission or immunity in advance," noting that "[w]e are unaware of any authority that would allow a convening authority to give 'permission or immunity' in advance to commit a criminal violation." [466] Likewise, military lawyers from the Judge Advocate General's Legal Center and School later said that LTC Beaver's "proposal to immunize interrogators, given that a number of the proposed techniques in issue constituted violations of the UCMJ, was not only unprecedented, but lacked any basis in law." [467] (U) Based on her legal review, LTC Beaver recommended that the "proposed methods of interrogation be approved," but that interrogators be trained to use the methods and that "interrogations involving category II and III methods" undergo a legal, medical, behavioral science, and intelligence review prior to commencement. [468] (U) LTC Beaver told the Committee that she called the SOUTHCOM Staff Judge Advocate COL Manny Supervielle, likely on Sunday, October 10, 2002 and sent SOUTHCOM a draft of the legal memo that same day. [469] She said that she told COL Supervielle that she "really needed some help" but that she received no comments from SOUTHCOM prior to submitting the final memo the next day. [470] LTC Beaver said that she also talked to the Legal Counsel to the Chairman of the Joint Chiefs of Staff CAPT Jane Dalton and asked for her help, but was told that she should talk to COL Supervielle. [471] CAPT Dalton said that she did not recall that conversation with LTC Beaver. [472] LTC Beaver also told the Committee that MG Dunlavey did not comment on drafts of the memo and that she did not discuss it with him after it was completed. [473] (U) On October 11, 2002, MG Dunlavey submitted LTC Phifer's memo and LTC Beaver's legal analysis to General James Hill, the Commander of the United States Southern Command (SOUTHCOM). He also sent his own memo requesting approval to use the interrogation techniques. [474] MG Dunlavey wrote: I am fully aware of the techniques currently employed to gain valuable intelligence in support of the Global War on Terrorism. Although these techniques have resulted in significant exploitable intelligence, the same methods have become less effective over time. I believe the methods and techniques delineated in the accompanying J-2 memorandum will enhance our efforts to extract additional information. Based on the analysis provided by the JTF-170 SJA, I have concluded that these techniques do not violate U.S. or international laws. [475] (U) On October 25, 2002, GEN Hill forwarded the JTF-170 request to Chairman of the Joint Chiefs of Staff, Gen Richard Myers, with a memorandum stating that "despite our best efforts, some detainees have tenaciously resisted our current interrogation methods." [476] He continued: "[O]ur respective staffs, the Office of the Secretary of Defense, and Joint Task Force 170 have been trying to identify counter-resistant techniques that we can lawfully employ." [477] When later asked, GEN Hill could not recall whether SOUTHCOM produced a written opinion analyzing the GTMO request separate from LTC Beaver's opinion. [478] (U) As to techniques in the GTMO request for interrogation techniques, GEN Hill said that he "did discuss the topic of SERE training in a general manner with MG Dunlavey." [479] Years later, in a June 3, 2004 press briefing, GEN Hill noted the influence of the Fort Bragg trip and SERE school techniques on the request, stating: The staff at Guantanamo working with behavioral scientists, having gone up to our SERE school and developed a list of techniques which our lawyers decided and looked at, said were OK. I sent that list of techniques up to the Secretary and said, in order for us to get at some of these very high-profile, high- value targets who are resistant to techniques, I may need greater flexibility. But I want a legal review of it and you to tell me that, policy-wise, it's the right way to do business. [480] (U) In his October 25, 2002 memo, GEN Hill stated that, although he believed Categories I and II techniques were "legal and humane," 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." [481] Nevertheless, GEN Hill said that he "desire[d] to have as many options as possible at [his] disposal" and asked that Departments of Defense and Justice attorneys review the Category III techniques. [482] (U) One SOUTHCOM Assistant Staff Judge Advocate LTC Mark Gingras testified to the Army IG that lawyers for SOUTHCOM had concerns about Category II and Category III techniques. [483] Regarding the GTMO request for techniques, LTC Gingras told the Army IG: As lawyers we're talking about adherence to the rule of law being important, and that's what we're trying to tell everybody as we travel around the world to these other countries. That's paramount to democracy. And so suddenly we look like we're brushing this aside or we're twisting the law. The feeling was that decision makers within the Pentagon didn't much care about that. They cared about winning the War on Terrorism. And if that meant you had to pull out fingernails you'd pull out fingernails, figuratively speaking. [484] D. Military Services React to GTMO Request/or Interrogation Techniques (U) (U) On October 30, 2002, after receiving Gen Hill's memo and the GTMO request, the Joint Staff J-5 requested that the military services comment on the request. [485] (U) On November 1, 2002, the Air Force responded, expressing "serious concerns regarding the legality of many of the proposed techniques" and stating that "some of these techniques could be construed as 'torture,' as that crime is defined by 18 U.S.C. 2340." [486] The Air Force memorandum added that, with respect to potential prosecutions, the use of Category III techniques would "almost certainly" result in any statements obtained being inadmissible. [487] The memorandum stated that admissibility of evidence obtained using Categories I and II techniques, the latter of which included stress positions, the use of dogs, removal of clothing, and deprivation of light and auditory stimuli, among other techniques, would be "fact specific, but the same concerns remain." [488] The Air Force memo continued: "Additionally, the techniques described may be subject to challenge as failing to meet the requirements outlined in the military order to treat detainees humanely... Implementation of the proposed techniques would require a change in Presidential policy." [489] The memo stated that the Air Force "concurs in the need to conduct an in-depth legal and policy assessment, as recommended by [the SOUTHCOM Commander], prior to implementation of the proposed counter-resistance interrogation techniques." [490] (U) On November 4, 2002, the Navy responded to the Joint Staff's request for comment, stating that it "concur[red] with developing a range of advanced counter-resistance techniques," but recommending "a more detailed interagency legal and policy review be conducted on the ... proposed techniques." [491] (U) That same day, the Marine Corps submitted its written comments, which concluded that "several of the Category II and III techniques arguably violate federal law, and would expose our service members to possible prosecution." [492] The Marine Corps memo stated that the use of the techniques would also create "exposure to criminal prosecution under the UCMJ." [493] Again, Category III techniques included the use of scenarios designed to convince the detainee that death or severely painful consequences were imminent for him or his family, exposure to cold weather or water, use of a wet towel and dripping water to induce the misperception of suffocation, and non-injurious physical contact such as grabbing, poking and light pushing. [494] Category II included such techniques as stress positions, deprivation of light and auditory stimuli, the use of a hood during questioning, 20 hour interrogations, removal of clothing, and the use of detainee phobias, such as dogs, to induce stress. The memo also stated the Marine Corps "disagree[d] with the position that the proposed plan is legally sufficient." [495] (U) A few days later, the Army submitted comments from both the Office of the Judge Advocate General (OTJAG) and the CITF. [496] The Army's cover memo stated that "Army interposes significant legal, policy and practical concerns regarding most of the Category II and all of the Category III techniques proposed" and that the Army "concurs in the recommendation for a comprehensive legal review of this proposal in its entirety by the Department of Defense and the Department of Justice." [497] The OTJAG's memorandum, which was attached, stated that Category III techniques "violate the President's order [on humane treatment] and various UCMJ articles" and that the use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family and the use of a wet towel and dripping water to induce the misperception of suffocation "appear to be clear violations of the federal torture statute." [498] The OTJAG memorandum also stated that Category II techniques of stress positions, deprivation of light and auditory stimuli, and using individual phobias to induce stress "crosses the line of 'humane' treatment, would likely be considered maltreatment under Article 93 of the [Uniform Code of Military Justice], and may violate the Federal torture statute." [499] The memo continued that removal of clothing and forced grooming "may be considered inhumane" if done only for interrogation purposes and stated "if we mistreat detainees, we will quickly lose the moral high ground." [500] The Army concurred with GEN Hill's request for a legal review before techniques were adopted. [501] (U) Military lawyers were not the only personnel to object to GTMO's request for aggressive techniques. CITF Deputy Commander Mark Fallon told the Committee that it was CITF's view that the techniques proposed by JTF-170 would actually strengthen, rather than weaken, detainee resistance. He explained: Our view was that employing techniques that validated [the detainees] prior training and adverse views would serve to harden resistance and reinforce what they had been told to expect... We pointed out that SERE school tactics were developed to better prepare U.S. military personnel to resist interrogations and not as a means of obtaining reliable information. CITF was troubled with the rationale that techniques used to harden resistance to interrogations would be the basis for the utilization of techniques to obtain information. [502] (U) CITF's legal view was reflected in a November 4, 2002 memo from CITF Chief Legal Advisor MAJ Sam McCahon, which was also attached to the Army's response to the Joint Staff. MAJ McCahon wrote: [Category] III and certain [Category] II techniques may subject service members to punitive articles of the UCMJ... CITF personnel who are aware of the use or abuse of certain techniques may be exposed to liability under the UCMJ for failing to intercede or report incidents, if an inquiry later determines the conduct to be in violation of either the Eighth Amendment to the U.S. Constitution, the Uniform Code of Military Justice or 18 U.S.C. §2340. [503] (U) MAJ McCahon also raised concerns about the impact of the techniques on evidentiary proceedings: One detainee subjected to these techniques could taint the voluntary nature of all other confessions and information derived from detainees not subjected to the aggressive techniques. [504] (U) MAJ McCahon added that "[b]oth the utility and legality of applying certain techniques" in the October 11, 2002 memo are "questionable," and recommended that CITF personnel not participate in or even observe the use of aggressive techniques. [505] MAJ McCahon concluded: I cannot advocate any action, interrogation or otherwise, that is predicated upon the principle that all is well if the ends justify the means and others are not aware of how we conduct our business. [506] (U) MAJ McCahon told the Committee that his memorandum prompted a subsequent meeting at the Pentagon. [507] (U) When the October 11, 2002 GTMO request arrived in the DoD General Counsel's office, DoD Associate Deputy General Counsel for International Affairs Eliana Davidson said that she was asked to provide her thoughts on the request. Ms. Davidson said that she had a brief conversation with Mr. Haynes where she told him that the GTMO request needed further assessment. [508] Mr. Haynes stated that he did not "recall that specifically." [509] E. Department of Defense General Counsel Quashes Joint Staff Legal Review (U) (U) When the October 11, 2002 GTMO request arrived at the Joint Staff, CAPT Jane Dalton, the Legal Counsel to the Chairman of the Joint Chiefs of Staff, said it was "obvious to [her] that there were some legal issues" with the request. [510] She said that techniques in Category II of the request "needed to be looked at closely" and that Category III techniques "had significant, significant concerns." [511] CAPT Dalton found LTC Beaver's legal analysis ''woefully inadequate" and said it relied on a methodology and conclusions that were "very strained." [512] Rather than simply deny the request, however, CAPT Dalton said that "she owed it to the combatant commander to do a full and complete review." [513] She subsequently directed her staff to set up a secure video teleconference with representatives from the Defense Intelligence Agency (DIA), the Army's intelligence school at Fort Huachuca, U.S. Southern Command (SOUTHCOM), and GTMO to find out more information about the techniques in the request and to "begin discussing the legal issues to see if we could do ... our own independent legal analysis." [514] (U) CAPT Dalton recalled making Chairman of the Joint Chiefs of Staff General Richard Myers aware of the concerns expressed by the military services. [515] The Chairman said, however, that he did "not specifically recall the objections of the Services being raised" to his attention at that time. [516] (U) CAPT Dalton also recalled that her staff briefed the DoD General Counsel's office about the concerns submitted by the military services and that the General Counsel himself "was aware of the concerns." [517] In a February 2008 interview, DoD Associate Deputy General Counsel for International Affairs Eliana Davidson recalled that the service comments were made available to the General Counsel's office. [518] DoD General Counsel Jim Haynes stated, however, that he "did not recall seeing" the memos at that time and "didn't know they existed." [519] He stated that he did not recall being informed by anyone that the military services had concerns about the legality of Category II techniques in the request and that he did not have a "specific recollection" of CAPT Dalton making him aware that there were concerns about the legality of techniques in the GTMO request. [520] (U) 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' analysis of it. [521] According to CAPT Dalton, Mr. Haynes "wanted to keep it much more close hold." [522] When CAPT Dalton "learned that [the DoD General Counsel] did not want that broad based legal and policy review to take place," she and her staff stopped their review. [523] This was the only time that CAPT Dalton had ever been asked to stop analyzing a request that came to her for her review. [524] [Delete] CAPT Dalton recalled that prior to being directed to stop the review, her staff had begun writing draft comments on the GTMO request. [525] An undated draft of a memorandum from GEN Myers to SOUTHCOM Commander GEN Hill, analyzing the October 11, 2002 GTMO request, stated "We do not believe the proposed plan is legally sufficient." [526] The draft memo stated that "several of the Category III techniques arguably violate federal law, and could expose interrogators to possible prosecution" under the federal anti-torture laws. [527] The draft stated that techniques in the request "may be subject to challenge as failing to meet the requirements outlined in the military order to treat detainees humanely" and recommended an "in-depth technical, policy, and legal assessment" of the techniques prior to their implementation. [528] (U) GEN Myers said that he had "no specific recollection" of discussing with CAPT Dalton her efforts to conduct an analysis of the October 11, 2002 GTMO request. [529] He said that while he "did not dispute" asking her to stop working on her analysis and acknowledged that Joint Staff records indicated that she did stop work on her analysis, he had "no recollection or doing so" and did "not recall anyone suggesting" to him that she stop her review. [530] DoD General Counsel Jim Haynes said that while it was "possible" that the issue could have come up in a conversation with the Chairman of the Joint Chiefs of Staff, he did not "recall that specific conversation" or expressing any opinion of any kind with respect to CAPT Dalton's review. [531] F. GTMO and JPRA Plan for Additional Interrogation Training (U) [Delete] While GTMO's request for approval to use aggressive interrogation techniques was pending, JPRA staff was developing an agenda for possible follow-up training for interrogation personnel at GTMO. [Delete] In mid-October 2002, JPRA developed a plan of instruction to provide training on the techniques to GTMO interrogators. [532] The training plan was virtually identical to a draft agenda developed for the Fort Bragg training of GTMO personnel that took place in September, which included instruction of the ''use of physiological pressures." [533] [Delete] (FOUO) David Becker, the GTMO ICE Chief, told the Committee that once they received authority to use the techniques in the October 11, 2002 memo, GTMO interrogators would need training on the techniques. [534] A draft message order circulated between GTMO and JPRA staff in late October requested "mission critical training support" for "approximately [delete] personnel" at GTMO. [535] The draft message order stated that the training would "provide the necessary tools ITF-GTMO interrogators require to accomplish their mission critical tasks. [536] [Delete] [delete] A November 15, 2002 staff memo to the Joint Staff J-2 stated that JTF-GTMO had requested training on the SERE school techniques and that the trainers were expected to arrive in the first week of December. [537] The JPRA Operational Support Office (OSO) Chief Christopher Wirts told the Committee that the requirement for JPRA to provide the training was never approved and that his agency never conducted the training. [538] However, in January 2003, two instructors from the Navy SERE school, John Rankin and Christopher Ross, travelled to GTMO to train interrogators on the use of physical pressures, including slapping, walling, and stress positions. [539] _______________ Notes: 437. Memo from LTC Jerald Phifer to MG Michael Dunlavey, Request for Approval of Counter-Resistance Strategies (October 11, 2002) (hereinafter LTC Phifer to MG Michael Dunlavey, Request for Approval of Counter-Resistance Strategies'). 438. MAJ Burney told the Army IG that the October 11, 2002 memo "wasn't the exact same document that we had written but the general structure and overall organization-a lot of the things did remain intact from our original brainstorm to what was eventually requested." Army IG, Interview of MAJ Paul Burney (August 21, 2007) at 11. 439. The October 11 memo also stated that "current guidelines for interrogation procedures at GTMO limit the ability of interrogators to counter advanced resistance." LTC Phifer to MG Michael Dunlavey, Request for Approval of Counter- Resistance Strategies". 440. Ibid 441. Additional Category II techniques included use of falsified documents or reports, interrogating the detainee in an environment other than the standard interrogation booth, use of 20 hour interrogations, removal of all comfort items (including religious items), switching the detainee from hot rations to MREs, and forced grooming. Ibid 442. Vice Admiral Albert T. Church, Review of Department of Defense Detention Operations and Detainee Interrogation Techniques (March 7, 2005) (hereinafter "Church Report," at 109 (citing email from LTC Beaver (August 19, 2002)). 443. LTC Beaver told the Committee that LTC Phifer advocated the use of stress positions in the interrogation of Mohammed al Khatani (discussed below). Committee staff interview of LTC Diane Beaver (November 9, 2007). 444. Ibid. 445. LTC Phifer to MG Michael Dunlavey, Request for Approval of Counter-Resistance Strategies. 446. Ibid. 447. The use of a wet towel and dripping water to induce the misperception of drowning appears to describe waterboarding. The Navy is the only service that used waterboarding in SERE training. which it ceased in November 2007. 448. Counter Resistance Strategy Meeting Minutes at 5 (The CTC Chief Counsel explained that if a "well-trained individual is used to perform" the "wet-towel 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.") 449. Committee staff interview of David Becker (September 17, 2007). 450. Committee staff interview of LTC Jerald Phifer (June 27, 2007). 451. Committee staff interview of David Becker (September 17, 2007). 452. Committee staff interview of LTC Jerald Phifer (June 27, 2007). 453. Memo from LTC Diane Beaver for Commander, Joint Task Force 170, Legal Review of Aggressive Interrogation Techniques (October 11, 2002). 454. Committee staff interview of LTC Diane Beaver (November 9, 2007). 455. Counter Resistance Strategy Meeting Minutes at 3. 456 Memo from Assistant Attorney General Jay Bybee to White House Counsel Alberto Gonzales, Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (August 1, 2002). 457. Memo from LTC Diane Beaver for Commander, Joint Task Force 170, Legal Brief on Proposed Counter- Resistance Strategies (October 11, 2002) (hereinafter" LTC Beaver, Legal Brief on Proposed Counter-Resistance Strategies"). 458. The SJA concluded that because the techniques in the Army FM 34-52 are "constrained by, and conform to the Geneva Conventions and applicable international law," and that the Geneva Conventions do not apply as a matter of law, the Field Manual was "not binding." See LTC Beaver, Legal Brief on Proposed Counter-Resistance Strategies at 1. 459. LTC Beaver, Legal Brief on Proposed Counter-Resistance Strategies at 2. 460. Ibid. at 5. 461. Ibid. 462. Committee staff interview of LTC Diane Beaver (November 9, 2007). 463. BSCT, Counter-Resistance Strategies (October 2, 2002). 464. LTC Beaver, Legal Brief on Proposed Counter-Resistance Strategies at 5. 465. Ibid. 466. Memo from Marine Corps Service Planner to Director, J-5, The Joint Staff, Counter-Resistance Techniques (November 4, 2002) see also Section IV D, infra. 467. Lt Col Kantwill et al., Improving the Fighting Position, A Practitioner's Guide to Operational Law Support to the Interrogation Process, 2005 Army Lawyer (July 2005) at 12, 14. 468. LTC Beaver, Legal Brief on Proposed Counter-Resistance Strategies at 7. 469. Committee staff interview of LTC Diane Beaver (November 9, 2007). 470. SASC Hearing (June 17, 2008); Committee staff interview of LTC Diane Beaver (November 9, 2007). 471. SASC Hearing (June 17, 2008). 472. Ibid. 473. Committee staff interview of LTC Diane Beaver (November 9, 2007). 474. Memo from MG Michael Dunlavey to USSOUTHCOM Commander GEN James Hill, Counter-Resistance Strategies (October 11, 2002) (hereinafter "MG Dunlavey to GEN Hill, Counter-Resistance Strategies.'') 475. MG Dunlavey to GEN Hill, Counter-Resistance Strategies. 476. Memo from GEN James Hill to Chairman of the Joint Chiefs of Staff GEN Richard Myers, Counter-Resistance Techniques, (October 25, 2002) (hereinafter "GEN Hill to CJCS, Counter-Resistance Techniques.") 477. GEN Hill to CJCS, Counter-Resistance Techniques. 478. GEN James 1. Hill answers to July 31, 2008 written questions from Senator Carl Levin (August 20, 2008). 479. Ibid. 480. June 3, 2004 Media Availability with Commander U.S. Southern Command. 481. GEN Hill to CJCS, Counter-Resistance Techniques. 482. GEN Hill to CJCS, Counter-Resistance Techniques; In testimony to the Army IG, the SOUTHCOM Commander said that he thought the request "was important enough to where there ought to be a high level look at it... There ought to be a major policy discussion of this and everybody ought to be involved." Army IG, Interview of GEN James T. Hill (October 7, 2005), at 7. 483. Army IG, Interview of LTC Mark Gingras (October 11, 2005) at 20. 484. Ibid. 485. Joint Staff Action Processing Form (SJS 02-06697), Counter-Resistance Techniques (October 30, 2002). 486. Department of the Air Force Memo for UN and Multilateral Affair Division (1-5), Joint Staff, Counter-Resistance Techniques (November 1, 2002). 487. Ibid. at 1. 488. Ibid. 489. Ibid. at 2. 490. Ibid. at 1. 491. Department of the Navy Memo for the Director for Strategic Plans and Policy Directorate (1-5) Joint Staff, Navy Planner's Memo WRT Counter-Resistance Techniques (SJS 02-06697) (November 4, 2002). 492. Memo from Marine Corps Service Planner to Director, J-5, The Joint Staff, Counter-Resistance Techniques (November 4, 2002). 493. Ibid. 494. LTC Phifer to MG Dunlavey, Request for Approval of Counter-Resistance Strategies. 495. Memo from Marine Corps Service Planner to Director, J-5, The Joint Staff, Counter-Resistance Techniques (November 4, 2002). 496. Memo from the Army Deputy to the Assistant Deputy Chief of Staff for Operations and Plans (Joint Affairs) to the Joint Staff, J-5/UNMA [UN and Multilateral Affairs Division], SJS 02-06697 (November 7, 2002); Memo from Department of the Army, Office of the Judge Advocate (International and Operational Law) to The Office of the Army General Counsel, Review-Proposed Counter-Resistance Techniques (undated) (hereinafter "DAJA(IO) Memo for Army General Counsel. Proposed Counter-Resistance Techniques.") 497. DAJA(IO) Memo for Army General Counsel, Proposed Counter-Resistance Techniques. 498. Ibid. 499. Ibid. 500. Ibid. 501. Ibid. 502. Responses of Mr. Mark Fallon to questionnaire of Senator Carl Levin (September 15, 2006) at 7. 503. Memo from CITF Chief Legal Advisor MAK Sam McCahon to CITF Commander, Assessment of JTF-170 Counter-Resistance Strategies and the Potential Impact on CITF Mission and Personnel (November 4, 2002) (hereinafter "McCahon to CDR CITF, Assessment of.JTF-170 Counter-Resistance Strategies.") 504. McCahon to CDR CITF, Assessment of JTFF-170 Counter-Resistance Strategies. 505. Ibid. 506. Ibid. 507. Committee staff interview of MAJ Sam McCahon (June 15, 2007). 508. Committee staff interview of Eliana Davidson (May 23, 2008). 509. SASC Hearing (June I7, 2008). 510. Committee staff interview of RADM Jane Dalton (April 10, 2008) at 33. 511. Ibid. at 45. 512. Ibid. at 41. 513. Ibid. at 33. 514. Ibid. at 34. 515. SASC Hearing (June 17, 2008). 516. Responses of General Richard Myers to written questions from Senator Carl Levin (April 30, 2008). 517. SASC Hearing (June 17, 2008). 518. Committee staff interview of Eliana Davidson (February 21, 2008). Ms. Davidson said in a subsequent interview that she was not aware of the military services' comments before discussing the October 11, 2002 GTMO request with the DoD General Counsel. Committee staff interview of Eliana Davidson (May 23, 2008). 519. SASC Hearing (Jooe 17, 2008). 520. Committee staff interview of William J. Haynes II (April 25, 2008) at 163-65. 521. Committee staff interview of RADM Jane Dalton (April 10, 2008) at 34. 522. Ibid. at 35. 523. SASC Hearing (June 17,2008). 524. Ibid. 525. Committee staff interview of RADM Jane Dalton (April 10, 2008) at 37. 526. Draft memo from CJCS Richard Myers to Commander, United States Southern Command, Counter-Resistance Techniques (undated). 527. Ibid. 528. Ibid. 529. Responses of GEN (Ret.) Richard Myers to April 16, 2008 written questions from Senator Carl Levin (April 30, 2008). 530. Ibid. 531. Committee staff interview of William J. Haynes II (April 25, 2008) at 168. 532. Memorandum From Joseph Witsch to JPRNCC, JPRNCD, JPRNCOS, JPRNOSO, Plan of Instruction (POI) for TF-170 Training Support (October 16, 2002). 533. See Section III D, supra; Plan of Instruction (POI) for JTF-170 Training Support (October 16, 2002). 534. Committee staff interview of David Becker (September 17, 2007). 535. Email from Chris Wirts to [delete] Richard Driggers, Joseph Witsch, [delete] [delete] and Gary Percival (October 29, 2002) (hereinafter "Email from Chris Wirts (October 29, 2002).") 536. Email from Chris Wirts (October 29,2(02). 537. JTF-170 and JTF-160 were combined to form JTF-GTMO in October 2002; Memo from [delete] to [Joint Staff], GTMO Detainee [delete] (November 15, 2002). 538. Committee staff interview of Chris Wirts (January 4, 2008). 539. See Section VII C, infra.
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