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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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VII. Secretary Rumsfeld Approves Interrogation Authorities, GTMO Plans to Implement SERE Techniques (U) A. Secretary of Defense Authorizes Aggressive Techniques for use at GTMO (U) On November 27, 2002, Mr. Haynes sent a memo to Secretary of Defense Donald Rumsfeld recommending that the Secretary authorize the Commander of SOUTHCOM to employ, at his discretion, all Category I and II techniques and one Category III technique (''use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing") in the JTF-GTMO October 11, 2002 request. [717] (U) Mr. Haynes's memo stated that he had discussed the issue with Deputy Secretary of Defense Paul Wolfowitz, Undersecretary of Defense for Policy Doug Feith, and Chairman of the Joint Chiefs of Staff (CJCS) General Richard Myers and that they concurred with his recommendation. [718] According to Mr. Haynes, his recommendation came after the Secretary of Defense expressed "some exasperation that he didn't have a recommendation" on the October 11, 2002 GTMO request and told his senior advisors "I need a recommendation." [719] (U) Mr. Haynes's memo concluded that while "all Category III techniques may be legally available, we believe that a blanket approval of Category III techniques is not warranted at this time." [720] While the CJCS, General Myers, said that he "did not recall seeing the November 27, 2002 memo before it was presented to the Secretary," his Legal Counsel, CAPT Dalton, said that she and the Chairman were "satisfied with" the techniques that were recommended to the Secretary for approval. [721] CAPT Dalton also said, however, that she did not think the statement in the DoD General Counsel's memo that "all Category III techniques may be legally available" ''was an appropriate legal analysis." [722] She did not raise that concern with the Chairman. [723] (U) Mr. Haynes stated that he "probably" read LTC Beaver's legal analysis of the request prior to making his recommendation but that he could not recall his opinion of it. [724] He could not recall whether he asked anyone on his staff to review or comment on the analysis or whether his office conducted its own legal review. [725] (U) As discussed above, General Hill, the SOUTHCOM Commander, had requested in his October 25, 2002 memorandum that Department of Justice and Department of Defense lawyers review Category III techniques included in the October 11, 2002 GTMO request. [726] While the Department of Justice's Office of Legal Counsel (OLC) had issued an opinion on August 1, 2002 evaluating standards of conduct for interrogations required under the anti-torture statute, Mr. Haynes testified in July 2006 that he "did not have a copy" of that opinion and that the OLC "had not expressed a view [to him] at that time. [727] In April 2008, however, Mr. Haynes stated that it was "very, very likely" that he had read the OLC opinion prior to making his recommendation to the Secretary and recalled it being "very permissive." [728] Two months later, in June 2008, Mr. Haynes testified that he did not "remember when he first read" the OLC memo. [729] The General Counsel said that he did not know whether anyone in his office consulted the Department of Justice about the October 11, 2002 GTMO request and he did not believe DOJ reviewed the techniques "in the context of [the GTMO] request." [730] (U) Other than his November 27, 2002 memo to Secretary Rumsfeld recommending that the techniques be approved, Mr. Haynes said that he "did not write anything down" to support his legal analysis. [731] GTMO Staff Judge Advocate Diane Beaver stated that she "fully expected" that her legal review would be "carefully reviewed by legal and policy experts at the highest levels before a decision was reached" and was "shocked" that her opinion became the opinion upon which the Department of Defense relied. [732] LTC Beaver stated that she did not expect that her opinion "would become the final word on interrogation policies and practices within the Department of Defense" and that for her "such a result was simply not foreseeable." [733] She stated that she "did not expect to be the only lawyer issuing a written opinion on this monumentally important issue" and that in hindsight, could not "help but conclude that others chose not to write on this issue to avoid being linked to it." [734] (U) Despite the fact that his memo recommended the Secretary of Defense authorize the use of aggressive interrogation techniques including stress positions, deprivation of light and auditory stimuli, hooding, removal of clothing, the use of dogs to induce stress, and pushing and poking detainees, Mr. Haynes stated that he was not recommending blanket approval of other aggressive techniques in the GTMO request (like the use of a wet towel and dripping water to induce the misperception of drowning) because "Our Armed Forces are trained to a standard of interrogation that reflects a tradition of restraint." [735] (U) While several techniques included in the request were similar to techniques used in SERE training and provided by JPRA to the General Counsel's office in the July 26, 2002 memo, Mr. Haynes said that he did not "specifically recall" making a connection between the request and SERE. [736] In comments submitted to the DoD IG's August 25, 2006 report, the DoD General Counsel's office even stated that "There is no evidence that SERE techniques were ever adopted at Guantanamo or anywhere else." [737] Those comments were submitted two years after the SOUTHCOM Commander, General Hill, had said that ''the staff at Guantanamo" had traveled to "SERE school," where they "developed a list of techniques ..." and despite the fact that some of the techniques in the October 11, 2002 GTMO request were specifically identified as ''those used in U.S. military interrogation resistance training." [738] (U) Mr. Haynes said that he raised legal concerns about the October 11, 2002 GTMO request with the Secretary prior to making his recommendation. [739] On December 2, 2002, however, Secretary Rumsfeld approved Mr. Haynes's recommendation that SOUTHCOM be given authority to use all Categories I and II techniques and one Category III technique in interrogations at GTMO. [740] In approving the techniques, the Secretary added a handwritten note at the bottom of the memo that questioned one of the limitations in the JTF-GTMO request, [741] In reference to ''the use of stress positions (like standing) for a maximum of four hours," the Secretary wrote: "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?" [742] [Delete] Despite having previously approved the Khatani plan, which included a phase to employ Category III techniques, MG Geoffrey Miller told the Committee that shortly after the authorization was issued, he told the SOUTHCOM Commander that he did not intend to use the Category III techniques at GTMO. [743] (U) However, following the Secretary of Defense's December 2, 2002 authorization, JTF-GTMO senior staff began developing standard operating procedures to implement stress positions, stripping detainees, and non-injurious physical contact, such as pushing and poking detainees, all of which were authorized by the Secretary of Defense. The CITF Special Agent in Charge at GTMO, Timothy James, said that when he saw the Secretary's authorization, he was "in shock" and that it "told us we had lost the battle." [744] [Delete] [delete] On December 14, 2002, just prior to a staff meeting, GTMO's Director for Intelligence, LTC Phifer, gave Mr. James, the CITF Special Agent in Charge, a document entitled "JTF-GTMO 'SERE' Interrogation Standard Operating Procedure" and asked for his comments on the document. [745] The techniques described in the draft SOP, such as stress positions, non-injurious physical contact, removal of clothing, and hooding, had all been authorized by the Secretary of Defense on December 2, 2002. [746] [Delete] [delete] The Department of Defense provided the Committee with two versions of the draft SERE SOP, one dated December 18, 2002 and another earlier undated draft. The draft SOPs were based on the Navy SERE school manual. [747] (U) Under "purpose" both drafts of the SOP stated: This SOP document promulgates procedures to be followed by JTF-GTMO personnel engaged in interrogation operations on detained persons. The premise behind this is that the interrogation tactics used at U.S. military SERE schools are appropriate for use in real-world interrogations. These tactics and techniques are used at SERE school to 'break' detainees. The same tactics and techniques can be used to break real detainees during interrogation operations. ... Note that all tactics are strictly intended to be non-lethal. [748] (D) The December 18, 2002 draft stated that "interrogators will undergo training by certified SERE instructors prior to being approved for use of any of the techniques described in this document" and stated that the draft SOP was "applicable to military and civilian interrogators assigned to Joint Task Force Guantanamo Bay, Cuba." [749] (U) In addition, the December 18, 2002 draft included a section describing "interrogation control and safety" that listed safeguards to "avoid injuries to the detainee, especially his head and/or neck" and stated that a "corpsman or medic should be onsite, and a doctor on-call should medical care be necessary." [750] The December 18, 2002 draft was unsigned but contained signature blocks for the JTF-GTMO's new ICE Chief, Lt Col Moss, the new JIG Commander, COL Sanders, and the JTF-GTMO Commander, MG Miller. [Delete] [delete] Under "Degradation Tactics" the draft SOPs described the "shoulder slap," the "insult slap," the "stomach slap," and "stripping," all of which were included in the Secretary of Defense's December 2, 2002 authorization. [751] [Delete] [delete] Regarding the shoulder slap, John Rankin, a Navy SERE Training Specialist who reviewed the draft SOPs at the time, noted that the SOPs' description of the shoulder slap differed from the technique as applied at the Navy SERE school. [752] The Navy instruction manual described the shoulder slap [Big delete]." [753] However, the draft GTMO SOPs described the shoulder slap as [Big delete]." [754] [Delete] [delete] The draft SOPs described how to administer "insult slap[s]" and "stomach slap[s]" to "shock and intimidate the detainee." [755] The draft SOPs explained that the use of "stripping" involved the "forceful removal of detainees' c1othing." [756] The drafts also stated that "[i]n addition to degradation of the detainee, stripping can be used to demonstrate the omnipotence of the captor or to debilitate the detainee." [757] [Delete] [delete] Under "Physical Debilitation Tactics" the draft SOPs described various stress positions and said the purpose of using them was to "punish detainees." [758] Among the stress positions listed was the "kneeling position," [Big delete]. Another stress position, the "standing position," [Big delete]." [760] The draft SOPs also listed "Worship- the-Gods" where a detainee would [Big delete] ." [761] [Delete] [delete] [Delete] [delete] The draft SERE SOPs described a number of other techniques including hooding; "manhandling," described as "pulling or pushing a detainee," and "walling," described as "placing a detainee forcibly against a specially constructed wall." [762] According to the draft SOPs, the purpose of walling was to "physically intimidate a detainee." [763] (U) In an email sent shortly after the December 14, 2002 staff meeting where LTC Phifer provided him the draft SOP, CITF Special Agent in Charge Timothy James said that LTC Phifer briefed MG Miller and his staff on the draft SOP at the meeting. [764] [Delete] Several senior GTMO staff reviewed drafts of the GTMO SERE SOP. On December 14, LTC Beaver sent an email to LTC Phifer, Lt Col Moss (the newly arrived ICE Chief) and members of the GTMO Behavioral Science Consultation Team (BSCT) proposing changes to the draft SERE SOP. [765] LTC Beaver recommended: [S]trictly prohibiting use of force to the head such as when detainee looks away. Pressure to head and neck must be avoided. Guiding chin up with two fingers for example or using other techniques to make detainee comply. This would avoid inadvertent injury... We can gain some control with use of pressure to shoulder and arms or upper body and less charge of injury to face, neck or head. [766] (U) LTC Beaver later testified to the Committee that she might have recalled seeing a SERE SOP at the time but that she "had nothing to do" with drafting the December 18, 2002 version of the SOP and did not participate at all in drafting it. [767] [Delete] On December 16, 2002, BSCT psychiatrist MAJ Paul Burney responded to LTC Beaver's email, stating that "if these techniques are employed at GTMO, our training/preparation must match that of the instructors who are allowed to use these same techniques at SERE school." [768] MAJ Burney described some of the requirements for SERE instructors, such as having them "go through SERE school themselves," ''undergo strict psychiatric screening," and be strictly supervised while doing their jobs at the SERE school. [769] MAJ Burney said that "there are still times when instructors go a bit too far and have to be redirected by other instructors. The SERE school takes this training VERY seriously. It clearly is not a see one, do one, teach one kind of situation" [770] The psychiatrist warned: The environment down here is much different than at SERE school. There is not a cadre of experienced SERE instructors. The interrogators have not gone through SERE school or been subjected to this treatment themselves. There is not a psychiatric screening process in place. The interrogators are away from home, family, friends and are under a lot more stress than SERE instructors at the SERE school. The detainees being questioned are the enemy and are not U.S. personnel posing as the enemy... All these factors make using this kind of pressure much more dangerous in this environment compared to at the SERE school. [771] [Delete[ As to the utility of the SERE resistance techniques, MAJ Burney also stated that "[i]t is quite possible that employing these techniques exactly as employed in SERE school may actually strengthen a detainee's ability to resist interrogation rather than overcome it." [772] MAJ Burney stated that he was "not suggesting that the use of physical pressures should be totally abandoned," but recommended that they should bring an experienced senior SERE trainer to GTMO to discuss the issue stating "the interrogation element feels these tools will greatly assist the interrogations process. It would be very interesting to me to know if senior SERE trainers... agree with this assessment or not." [773] MAJ Burney also recommended that, if JTF-GTMO determined the techniques might be effective, then they should institute the same screening processes that SERE schools use and that SERE school instructors be "sent to GTMO to help with the interrogation process." [774] (U) Mr. Becker, the ICE Chief who left GTMO in December 2002, told the Committee that prior to his departure he had begun drafting the SOP and had discussed it with LTC Phifer. [775] (U) As discussed above, contemporaneous documents suggest that LTC Phifer gave a copy of the draft SERE SOP to Timothy James, the CITF Special Agent in Charge, and briefed the draft to a JTF-GTMO staff meeting. [776] LTC Phifer was also a recipient of the December 14, 2002 email from LTC Beaver that proposed changes to the draft SERE SOP. [777] However, LTC Phifer testified to the Army IG that he had "never heard of [the SOP] or saw [the SOP]." [778] He later told the Committee that he did not recall the SOP or the December 14, 2002 staff meeting and said that he would not have been comfortable briefing the SOP. [779] (U) LTC Phifer was replaced on or about December 17, 2002 by COL Richard Sanders, who was given the title of Joint Intelligence Group (JIG) Commander. [780] COL Sanders, whose signature block was included on the December 18, 2002 draft SERE SOP, did not recall seeing the SOP, but said he vaguely recalled discussions about it. [781] Lt Col Moss, the new ICE Chief whose signature block was also on the draft SERE SOP, told the Committee that he recalled the draft SOP but that he never signed it. [782] (U) LTC Beaver told the Committee that she did not know who directed the development of the SOP and could not recall whether she discussed it with MG Miller. [783] MAJ Burney told the Committee that he recalled being provided a copy of the Navy SERE school's SOP but did not recall seeing a document drafted by GTMO personnel. [784] [Delete] Despite having approved an interrogation plan that included SERE techniques and telling the Committee that, in the context of the Khatani interrogation, he was "willing to consider" SERE tactics, MG Miller testified to the Army IG that the techniques in the SOP ''were too aggressive and not appropriate for use [at GTMO]." [785] (U) While a contemporaneous document suggests that LTC Phifer briefed MG Miller on the SOP, MG Miller told the Army IG that the SOP was never brought to his attention and that he had no knowledge of it. [786] MG Miller later told the Committee that he did not recall being briefed on the draft SOP. [787] As noted above, he also told the Committee that he opposed stress positions, removal of clothing, and the use of non-injurious physical contact - all techniques described in the draft SERE SOP - and that he had made his opposition clear to his staff prior to the time that the SOPs were drafted. [788] (U) In response to LTC Phifer's request for comments on the draft SERE SOP, CITF raised concerns about the SOP verbally to LTC Phifer and drafted written comments about the SOP. [789] A draft of CITF's written comments (which they coordinated with FBI) was addressed to LTC Phifer and stated: [There is a] fundamental difference between the military and [CITF and FBI] regarding which style of interrogation should be used... the military model is based on SERE tactics...This school teaches coercion and aggressive interrogation techniques as a way to "break" soldiers who are being trained in methods to resist interrogation by a foreign power... [CITF and FBI] believe these techniques discourage, rather than encourage, detainee cooperation. [790] (U) CITF and FBI also argued that the use of the methods "only serves to reinforce" the negative perception of the detainees toward Americans and would create "real potential for mistreatment" of detainees. [791] CITF and FBI called the SERE techniques "unsuitable" and "ineffective" and said there were "serious concerns about the legal implications of the techniques." [792] (U) On December 18, 2002, CITF Special Agent in Charge Timothy James sent an email to Mr. Fallon stating "at this moment the JTF-GTMO staff is working the SOP issue, and [MG Miller] will most likely make a decision in the next day or so." [793] (U) Individuals interviewed by the Committee stated that the SOP was never signed or implemented at GTMO. [794] Less than two weeks after the December 18, 2002 draft SERE SOP was written, however, two instructors from the Navy SERE school traveled to GTMO to train interrogators on how to perform some of the physical pressures authorized by the Secretary of Defense and contained in the draft SERE SOPs. C. SERE School Trainers Provide Instruction/or GTMO Interrogators (U) (U) On December 30, 2002, a SERE Training Specialist, John Rankin, and a SERE Coordinator, Christopher Ross from the Navy SERE school in Brunswick, Maine arrived at GTMO to "provide [JTF-GTMO Interrogation Control Element] personnel with the theory and application of the physical pressures utilized during [Navy SERE school] training evolutions." [795] Lt Col Moss told the Committee that his predecessor, Mr. Becker, had invited the SERE school trainers to GTMO. [796] MG Miller told the Committee that he was aware of the visit. [797] (U) The trainers arrived on December 30, 2002 and met with Lt Col Moss and the ICE Operations Officer. [798] Lt Col Moss told them that "a high level directive had initiated [their] subsequent trip for the purpose of providing 'physical pressures' training." According to the SERE Training Specialist, John Rankin, that directive was a letter from the Secretary of Defense which was shown to him by Lt Col Moss. [799] Lt Col Moss also gave the two Navy SERE school personnel a copy of the December 18, 2002 draft SERE SOP. [800] (U) The next day, the two Navy SERE school instructors led training for GTMO interrogators and other ICE personnel at Camp Delta. [801] The training included instruction on "Biderman's Principles," including lessons from a chart that was originally included in a 1957 article about how communists elicited false confessions. [802] (U) The training also consisted of both lectures and instruction on the application of physical pressures. [803] The SERE Training Specialist John Rankin told the Committee that the instructors showed interrogators how to administer the insult slap, the shoulder slap, the stomach slap and demonstrated at least one stress position. [804] Mr. Rankin also said that they discussed the walling technique but did not demonstrate it because the facility lacked the specially constructed wall used at SERE school. [805] Two JTF-GTMO interrogators who attended the training stated that, following the demonstration, the interrogators broke off into pairs and practiced slapping each other. [806] (U) Two interrogators who attended the training said that they understood that the techniques were available for interrogators to put in their ''toolbox." [807] One of those interrogators recalled being told that if interrogators wanted to use the techniques, they would need to notify their interrogation team chief. [808] A third interrogator who attended the training told the Committee that he believed Lt Col Moss said the techniques could not be used while they were pending approval. [809] (U) The JIG Commander, COL Sanders, testified to the Army IG that he attended the initial portion of the training and "made it quite clear, at least I believe I made it quite clear [to the interrogators] ... the use of physical measures was not one of the things that we should consider was appropriate and would not be permitted." [810] COL Sanders also testified that he expressed the same concerns to MG Miller. [811] Those statements are inconsistent with the recollections of others. (U) Of the three interrogators interviewed by the Committee who attended the training, none recalled COL Sanders making such a statement. [812] Lt Col Moss, the ICE Chief at the time, did not recall COL Sanders being present at the training. [813] MG Miller told the Committee that no one on his staff expressed concern to him about the training. [814] (U) On the morning of January 2, 2003 the Navy SERE school personnel presented additional instruction on interrogation fundamentals and resistance to interrogation. [815] Later that day the instructors "presented an abbreviated theoretical physical pressures and peacetime guidance (government and hostage) to Marine JTF-GTMO personnel and two JTF-GTMO Staff Judge Advocate (SJA) officials." [816] LTC Beaver told the Committee that she was not aware the SERE instructors were coming to GTMO and did not attend any of the sessions. [817] (U) In the weeks following the Secretary of Defense's December 2, 2002 authorization of the interrogation techniques, word had spread that serious concerns were emerging about the techniques. In mid-to-late December, prior to the SERE trainers' arrival at GTMO, General Hill, the SOUTHCOM Commander, alerted MG Miller that a debate had ensued regarding the Secretary's decision to authorize the techniques. [818] (U) Prior to their departure on January 3, 2003, the two Navy SERE instructors met with MG Miller. [819] The GTMO Commander told the Committee that he informed the SERE instructors, in the presence of his staff, that he did not want the techniques they had demonstrated used in interrogations at GTMO. [820] Others who attended the meeting confirmed the Commander's account. [821] Mr. Rankin told the Committee that MG Miller said that he did not want interrogators using techniques that might "bite them" later on. [822] [Delete] [delete] Before leaving, Mr. Rankin provided a memo for the ICE Operations Chief on the use of physical and psychological pressures during interrogations. The memo stated: [The] use of physical and psychological pressures during interrogations, if deemed appropriate, are tools that can be applied in order to establish and reinforce [Biderman's] principles... these principles and associated pressures allow the interrogation system to establish and maintain control of the exploitation process... The application of physical pressures is only part of the overall captive management process. They are initially used to shock and intimidate by setting the stage and establishing control. There must be a statement made by demonstrating there are rewards and punishments for compliant and combative or resistive behavior. [823] (U) CITF had been established as a joint military organization composed of personnel from the Army Criminal Investigative Division (CID), the Naval Criminal Investigative Service (NCIS), and Air Force Office of Special Investigations. While CITF's Commander COL Britt Mallow was an Army Colonel assigned to CITF from CID, Deputy Commander Mark Fallon was an NCIS civilian employee on detail to the CITF. While COL Mallow reported concerns about JTF-GTMO interrogation techniques through his Army chain of command, Mr. Fallon also brought the concerns to NCIS leadership. [824] (U) On December 17, 2002, two weeks after the Secretary authorized the interrogation techniques for use at GTMO and with the Khatani interrogation underway, David Brant, the NCIS Director informed Navy General Counsel Alberto Mora about recent objections raised by CITF. [825] The next day, Mr. Mora met with NCIS Chief Psychologist Dr. Michael Gelles, who had been to GTMO and was familiar with the interrogation techniques in use there. Dr. Gelles provided Mr. Mora excerpts of interrogation logs reflecting detainee mistreatment. Dismayed by what he read and heard, Mr. Mora met with Steven Morello, the Army General Counsel, and for the first time had the opportunity to review the October 11, 2002 GTMO request, LTC Beaver's legal analysis, and the Secretary of Defense's December 2, 2002 authorization of interrogation techniques for use in GTMO interrogations, which included stress positions, removal of clothing, dogs, deprivation of light and auditory stimuli, 20 hour interrogations, forced grooming, and grabbing, pushing and poking detainees. [826] Mr. Mora testified to the Committee: "[W]hen I saw the December 2 Rumsfeld memo, and then reviewed Lieutenant Colonel Beaver's legal memorandum, when I saw that the memorandum was completely unbounded concerning the limit of abuse that could be applied to the detainees, I knew instantaneously ... that this was a flawed policy based upon inadequate legal analysis." [827] (U) The following day, Mr. Mora briefed Navy Secretary Gordon England on the NCIS report of detainee mistreatment and received authorization to meet with DoD General Counsel Jim Haynes. [828] That afternoon, Mr. Mora met with Mr. Haynes and advised him that in his view "some of the authorized techniques could rise to the level of torture." [829] He recalled urging the DoD General Counsel to "think about the techniques more closely" questioning him "What did 'deprivation of light and auditory stimuli' mean? Could a detainee be locked in a completely dark cell? And for how long? A month? Longer? What precisely did the authority to exploit phobias permit? Could a detainee be held in a coffin? Could phobias be applied until madness set in?" [830] (U) Mr. Mora also urged Mr. Haynes not to rely on LTC Beaver's legal analysis, characterizing it as "an incompetent product of legal analysis." [831] Mr. Mora left the meeting feeling confident that the Secretary's authorization for interrogation techniques would be suspended. [832] (U) More than two weeks later, on January 6, 2003, the NCIS Director informed Mr. Mora that the Secretary's December 2, 2002 memo had not been suspended and that detainee mistreatment was continuing at GTMO. [833] Two days later, Mr. Mora met with a Special Assistant to both the Secretary of Defense and the Deputy Secretary of Defense and informed him of the concerns. On January 9, 2003, Mr. Mora met again with DoD General Counsel Jim Haynes, warning him that the "interrogation policies could threaten Secretary Rumsfeld's tenure and could even damage the presidency." [834] The Navy General Counsel also left Mr. Haynes with a draft copy of a memo written by a Navy JAG Corps Commander, Stephen Gallotta. [835] [Delete] In that memo, CDR Gallotta summarized and attached comments that the military Services had submitted in November 2002 in response to the Joint Staff request. [836] CDR Gallotta's memo also assessed the legality of the techniques, concluding that several of the techniques "may violate the President's policy for the treatment of detainees," may violate international legal standards, and may violate the federal anti-torture statute (18 U.S.C. § 2340) and various articles of the Uniform Code of Military Justice (UCMJ). [837] [Delete] In his January 9, 2003 memo, CDR Gallotta concluded: Category III techniques that threaten death to the detainee or his family (#1) or which create the misapprehension of suffocation (#3) would likely be judged to constitute torture under the statute and customary international law. They reflect conduct specifically defined as torture in [18 U.S.C.] § 2340 and recognized as torture in international law. Category III, technique #4, mild, non-injurious grabbing and poking, is an assault under the UCMJ. Absent lawful purpose, these techniques may be per se unlawful. Category II techniques could also, depending in their implementation, i.e., frequency of use, degree of pain inflicted, or combinations of techniques, rise to a level where they could be determined to be torture. Thus, additional analysis with specific guidance for implementation is recommended. [838] (U) On January 15, 2003, "uncertain whether there would be any change to the interrogation policy," Mr. Mora delivered a draft memorandum to Mr. Haynes stating that "the majority of the proposed category II and all of the proposed category III techniques were violative of domestic and international legal norms in that they constituted, at a minimum, cruel and unusual treatment and, at worst, torture." [839] In a phone call that same day, Mr. Mora told the DoD General Counsel that he intended to sign the memo that afternoon if he had not heard that the Secretary's December 2, 2002 memo for interrogation techniques had been or was being suspended. [840] According to Mr. Mora, Mr. Haynes indicated during their conversations that "Secretary Rumsfeld was 'considering' rescinding the interrogation techniques he had previously authorized for use in Guantanamo." [841] In light of Mr. Mora's draft memo, Mr. Haynes also indicated that he would inquire further about the "Secretary's promise to 'consider' the withdrawal of the interrogation techniques." [842] Mr. Haynes called Mr. Mora later that day to tell him the Secretary had suspended his authorization for interrogation techniques. [843] (U) On January 15, 2003, the Secretary of Defense issued a memorandum for GEN Hill, the SOUTHCOM Commander, rescinding blanket authority for one Category III and all Category II techniques at GTMO. [844] GEN Hill said that Secretary Rumsfeld had called him days before formally rescinding authority for the techniques on January 15, 2003 and asked whether the interrogation should continue. GEN Hill said that he told the Secretary that he "would discuss the question with MG Miller, did so that day and reported back to [Secretary Rumsfeld] recommending we continue the interrogation." [845] According to GEN Hill, Secretary Rumsfeld agreed at that time that the interrogation should continue but subsequently called him back and directed that it be stopped. [846] (U) Just days after the Secretary of Defense rescinded authority for JTF-GTMO to use the interrogation techniques he had authorized in December, CITF's Deputy Commander Mark Fallon and NCIS Chief Psychologist Michael Gelles met with MG Miller to discuss their concerns about interrogation approaches. Mr. Fallon said MG Miller was "dismissive" of their concerns and reported that the GTMO Commander said "'you have got to put on the same jersey if you want to be on the team."" [847] [Delete] Following the Secretary's rescission, Khatani was moved out of Camp X-Ray. [848] Beginning on January 15, 2003 only Category I techniques were used in his interrogation. Category I techniques included yelling and techniques of deception. An April 19, 2003 memo from MG Miller the GTMO Commander said that on April 9, 2003, [Big delete]," interrogators and analysts attributed his cooperation to his failing a polygraph test, his being told that his information was becoming less important because other members of al Qaeda were cooperating, and interrogators informing Khatani that release or repatriation to Saudi Arabia depended on his truthfulness. [850] E. National Security Council (NSC) Principals Discuss DoD Interrogations (U) In a June 9, 2008 letter to the DoJ Inspector General, John Bellinger the former NSC Legal Advisor, stated that he "repeatedly asked the Defense Department about conditions and detention policies at Guantanamo Bay" and that he "specifically raised concerns about interrogations practices used at Guantanamo, including concerns raised by the Department of Justice." [851] (U) Mr. Bellinger told the Committee that Deputy Assistant Attorney General Bruce Swartz raised concerns with him "about allegations of abuse of detainees at Guantanamo." [852] Mr. Bellinger said that Mr. Swartz called him on "several occasions" to express his concerns and that, in response, he "raised these concerns on several occasions with DoD officials and was told that the allegations were being investigated by the Naval Criminal Investigative Service." [853] He said that then-National Security Advisor Condoleezza Rice "convened a series of meeting of NSC Principals in order to ensure that concerns about conditions and other issues relating to Guantanamo were fully discussed with the Department of Defense and other agencies." [854] (U) Secretary Rice confirmed Mr. Bellinger's account, stating that he advised her "on a regular basis" regarding concerns and issues relating to Department of Defense detention policies and practices at Guantanamo. [855] She said that, as a result she "convened a series of meetings of NSC Principals in 2002 and 2003 to discuss various issues and concerns relating to detainees in the custody of the Department of Defense." [856] _______________ Notes: 711. Ibid. 712. Testimony of Terrence Russell (August 3. 2007) at 87-88. 713. Ibid. 714. Ibid. 715. Ibid. 716. Ibid. 717. Action Memorandum from William J. Haynes II to Secretary of Defense, Counter-Resistance Techniques. (November 27, 2002), approved by the Secretary of Defense on December 2, 2002 (hereinafter "Secretary of Defense Approval of Counter-Resistance Techniques (December 2, 2002)"). 718. Secretary of Defense Approval of Counter-Resistance Techniques (December 2, 2002). 719. Committee interview of William J. Haynes II (April 25, 2008) at 193; SASC Hearing (June 17, 2008). 720. Secretary of Defense Approval of Counter-Resistance Techniques (December 2, 2002). 721. Responses of General Richard Myers to April 16, 2008 written questions from Senator Carl Levin (April 30, 2008); SASC Hearing (June 17, 2008). 722. SASC Hearing (June 17, 2008). 723. Ibid 724. Committee staff interview of William J. Haynes II (April 25, 2008) at 172. 725. Ibid. 726. GEN Hill to CJCS, Counter-Resistance Techniques. 727. Confirmation Hearing of William James Haynes II to be Circuit Judge for the Fourth Circuit, Senate Committee on Judiciary, 109th Cong. (July 11, 2006). 728. Committee staff interview of William J. Haynes II (April 25, 2008) at 175-177, 190. 729. Ibid. at 193; SASC Hearing (June 17, 2008). 730. Committee staff interview of William J. Haynes II (April 25, 2008) at 175-177, 186. 731. Ibid. at 177. 732. SASC Hearing (June 17, 2008). 733. Ibid. 734. Ibid. 735. Secretary of Defense Approval of Counter-Resistance Techniques (December 2, 2002). 736. Committee staff interview of William J. Haynes II (April 25, 2008) at 188. 737. Comment matrix, Legal Review of Draft SECRET/NOFORN DoD IG Report, Review of DoD-Directed Investigations of Detainee Abuse (Project No. D2004-DINT01-0174) (U). (June 8, 2006) at 8. 738. Media Availability with GEN Hill (June 3, 2004); MG Dunlavey to GEN Hill, Counter-Resistance Strategies (October 11, 2002). 739. Committee staff interview of William J. Haynes II (April 25, 2008) at 170. 740. Secretary of Defense Approval of Counter-Resistance Techniques (December 2, 2002). 741. Ibid. 742. Ibid. 743. Committee staff interview of MG Geoffrey Miller (December 5, 2007). 744. Committee staff interview of Timothy James (May 18, 2007). 745. Email from Timothy James to Mark Fallon et al. (December 17, 2002). 746. Secretary of Defense Approval of Counter-Resistance Techniques (December 2, 2002). 747. JTF-GTMO "SERE" Interrogation Standard Operating Procedure (undated) (hereinafter "JTF-GTMO SERE SOP (undated)"); JTF-GTMO "SERE" Interrogation Standard Operating Procedure (December 18, 2002); (hereinafter "JTF-GTMO SERE SOP (December 18, 2002)''). 748. JTF-GTMO SERE SOP (undated); JTF-GTMO SERE SOP (December 18, 2002). 749. JTF-GTMO SERE SOP (December 18, 2002). 750. JTF-GTMO SERE SOP (December 18, 2002). 751. Ibid. JTF-GTMO SERE SOP (undated). 752. Committee staff interview of John Rankin (September 25, 2007). 753. FASO Detachment Brunswick Instruction 3305.C (January 1, 1998) (emphasis added). 754. JTF-GTMO SERE SOP (undated); JTF-GTMO SERE SOP (December 18, 2002). 755. JTF-GTMO SERE SOP (undated); JTF-GTMO SERE SOP (December 18, 2002). 756. Ibid. 757. Ibid. 758. Ibid. 759. Ibid. 760. Ibid. 761. Ibid. 762. Ibid. 763. Ibid. 764. Email from Timothy James to Mark Fallon et al (December 17, 2002). 765. Email from LTC Diane Beaver to Lt Col Ted Moss and LTC Jerald Phifer (December 14, 2002). 766. Ibid. 767. SASC Hearing (June 17, 2008). 768. Email from MAJ Paul Burney to LTC Diane Beaver (December 16, 2002). 769. Ibid. 770. Ibid. 771. Ibid. 772. Ibid. 773. Ibid. 774. Ibid. 775. Committee staff interview of David Becker (October 17, 2007). 776. Email from Timothy James to Mark Fallon et a!. (December 17, 2002). 777. Email from LTC Diane Beaver to Lt Col Ted Moss and LTC Jerald Phifer (December 14, 2002). 778. Army IG, Interview of LTC Jerald Phifer (March 16, 2006) at 9. 779. Committee staff interview of LTC Jerald Phifer (June 27, 2007). 780. Ibid. 781. Committee staff interview of COL Richard Sanders (August 10, 2007). 782. Committee staff interview of LTC Ted Moss (October 17, 2007). 783. Committee staff interview of LTC Diane Beaver (November 9, 2007). 784. Committee staff interview of MAJ Paul Burney (August 21, 2007). 785. Army IG, Interview of MG Geoffrey Miller (March 28, 2006); Committee
staff interview of MG Geoffrey Miller 786. Email from CITF Special Agent in Charge (December 18, 2002); Army IG, Interview of MG Geoffrey Miller (March 28, 2006). 787. Committee staff interview of MG Geoffrey Miller (December 6, 2007). 788. Ibid. 789. Committee staff interview of Timothy James (May 18, 2007). 790. Draft Memo from Timothy James to JTF-GTMO/J2, JTF-GTMO "SERE" Interrogation SOP DTD 10 Dec 02 (December 17, 2002). CITF Special Agent in Charge Timothy James told the Committee that he was sure he shared CITF's concerns with LTC Phifer verbally and thought he gave LTC Phifer a memo documenting those concerns. Committee staff interview of Timothy James (May 18, 2007). 791. Draft Memo from Timothy James to JTF-GTMO/J2, JTF-GTMO "SERE" Interrogation SOP DTD 10 Dec 02 (December 17, 2002). 792. Ibid. 793. Email from Timothy James to Mark Fallon et al. (December 18, 2002). 794. Committee staff interview of Lt Col Ted Moss (October 17, 2007); Committee staff interview of MG Geoffrey Miller (December 6, 2007). 795. Memorandum from John Rankin and Christopher Ross to Officer in Charge, FASOTRAGRULANT Det Brunswick, After Action Report Joint Task Force Guantanamo Bay (JTF-GTMO) Training Evolution (January IS, 2003) (hereinafter "AAR JTF-GTMO Training Evolution (January 15, 2003)"). 796. Committee staff interview of David Becker (October 17, 2007). 797. Committee staff interview of MG Geoffrey Miller (December 5, 2007). 798. AAR JTF-GTMO Training Evolution (January 15, 2003). 799. Committee staff interview of John Rankin (September 24, 2007). 800. Ibid 801. AAR JTF-GTMO Training Evolution (January 15, 2003). 802. Ibid; Intelligence Science Board, Phase I Report: Educing Information: Interrogation: Science and Art (December 2006) at 316. 803. The Navy SERE instructors first provided a lecture on "Biderman's Chart of Coercion," which described the effects of various physical and psychological pressures on individuals in captivity. See AAR JTF-GTMO Training Evolution (January 15, 2003); Committee staff interviews of JTF-GTMO interrogators (July 12, 2007), (November 6, 2007), and (January 9, 2008). 804. Committee staff interview of John Rankin (September 24, 2007). 805. Ibid. 806. Committee staff interviews of JTF-GTMO interrogators (July 12, 2007) and (January 9, 2008). 807. Ibid. 808. Committee staff interview of JTF-GTMO interrogator (July 12, 2007). 809. Committee staff interview of JTF-GTMO interrogator (January 9, 2008). 810. Army IG, Interview of COL Richard Sanders (March 14, 2006). 811. Ibid. at 6. 812. Committee staff interviews of JTF-GTMO interrogators (July 12, 2007), (November 6, 2007), and (January 9, 2008). 813 Committee staff interview of Lt Col Ted Moss (October 17, 2007). 814. Committee staff interview of MG Geoffrey Miller (December 5, 2007). 815. AAR JTF-GTMO Training Evolution (January 15, 2003). 816. Ibid. 817. Committee staff interview of LTC Diane Beaver (November 9, 2007). 818. Committee staff interview of MG Geoffrey Miller (December 6, 2007). 819. AAR JTF-GTMO Training Evolution (January 15, 2003). 820. Committee staff interview of MG Geoffrey Miller (December 5, 2007). 821. Committee staff interview of Lt Col Ted Moss (October 17, 2007); Committee staff interview of John Rankin (September 24, 2007); Committee staff interview of Christopher Ross (September 24, 2007). 822. Committee staff interview of John Rankin (September 24, 2007). 823. Memorandum from John Rankin to Captain Weis, Physical and Psychological Pressures During Interrogations (January 3, 2003). 824. Responses of Mark Fallon to questionnaire of Senator Carl Levin (September 15, 2007). 825. Memo from Alberto J. Mora to the Inspector General, Department of the Navy, Statement for the Record: Office of General Counsel Involvement in Interrogation Issues (July 7, 2004) at 2-3 (hereinafter "Mora, Statement for the Record''). 826. The Army General Counsel also "demonstrated great concern with [the Secretary's] decision to authorize the interrogation techniques." Army lawyers explained to the Navy General Counsel that they had "tried to stop" the authorization "without success, and had been advised not to question the settled decision further." Mora, Statement for the Record at 5-6. 827. SASC Hearing (June 17, 2008). 828. Mora, Statement for the Record at 7. 829. Ibid. 830. Ibid. at 7. 831. Ibid. 832. Ibid. at 8. 833. Ibid. at 9. 834. A series of meetings followed between Mr. Mora and senior officials, where Mr. Mora reiterated his concerns. Mr. Mora met with the Legal Counsel to the Chairman of the Joint Chiefs of Staff CAPT Jane Dalton, the Service General Counsels and senior Judge Advocates General, Army General Counsel Steven Morello, Air Force General Counsel Mary Walker, and the DoD Principal Deputy General Counsel Daniel Dell'Orto. Ibid. at 13- 14. 835. Ibid. at 10. 836. Memo by CDR Stephen Gallotta, Counter-Resistance Techniques (January 9, 2003). The Services raised legal concerns about many of the Categories II and ill techniques and called for further legal review of the proposal. See Section IV D, supra. 837. Gallotta, Counter-Resistance Techniques (January 9, 2003). 838. Ibid. 839. Mora, Statement for the Record at 14. 840. Ibid. at 15. 841. Mora responses to questions for the record from SASC Hearing (June 17, 2008). 842. Ibid. 843. Mora, Statement for the Record at 15; see also Mora responses to questions for the record from SASC Hearing (June 17, 2008) ("At no time did Mr. Haynes give me any indication that the techniques had been previous rescinded. Had this been the case, Mr. Haynes could have simply informed me of the fact upon our first conversation that day."). 844. Memo from the Secretary of Defense to Commander USSOUTHCOM, Counter-Resistance Techniques (January 15, 2003) (hereinafter "SECDEF memo to CDR SOUTHCOM (January 15, 2003)"). 845. GEN James Hill answers to July 31, 2008 written questions (August 20, 2008). 846. Ibid. 847. Responses of Mark Fallon to questionnaire of Senator Carl Levin (September 15, 2006) at 16. 848. Memo from Major General Geoffrey Miller to Commander, U.S. Southern Command., Techniques Used on ISN 63 Since 15 January 2003 (S) (April 19, 2003). 849. Ibid. 850. Ibid. 851. Letter from John Bellinger, III to Glenn Fine (June 9, 2008). 852. John Bellinger answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 853. Ibid. 854. Ibid. 855. Condoleezza Rice answers to July 31, 2008 written questions from Senator Carl Levin (September 12, 2008). 856. Ibid.
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