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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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VIII. New Interrogation Policy Developed for GTMO (U) (U) When he rescinded authority for GTMO to use aggressive interrogation techniques, Secretary Rumsfeld directed the DoD General Counsel to set up a "Detainee Interrogation Working Group" within the Department "to assess the legal, policy, and operational issues relating to the interrogations of detainees held by the United States Armed Forces in the war on terrorism." [857] (U) Two days later, on January 17, 2003, Mr. Haynes directed Air Force General Counsel Mary Walker to convene the Working Group. [858] Per the Secretary's guidance, the Working Group was comprised of representatives from the Office of the Undersecretary of Defense (Policy), the Defense Intelligence Agency, the General Counsels of the Air Force, Army, and Navy, and Counsel to the Commandant of the Marine Corps, the Judge Advocates General of the Air Force, Army, and Navy, the Staff Judge Advocate for the Marine Corps, and the Joint Staff Legal Counsel and the Joint Staff Directorate for Strategic Plans and Policy (J5). [859] A. The Working Group Solicits Information on Interrogation Techniques (U) As Working Group participants began considering issues relating to interrogations of detainees, they sought information on interrogation techniques to evaluate. Within the first two weeks, Working Group participants solicited information about interrogation techniques from the Defense Intelligence Agency (DIA) and the Combatant Commands. [860] 1. The Defense Intelligence Agency Provides Information on Specific Interrogation Techniques (U) (U) The Working Group's principals and their action officers met for the first time on January 23, 2003. [861] At that meeting, the Working Group received a briefing from the DIA about specific interrogation techniques. [862] A proposed agenda for the first Working Group meeting tasked David Becker with providing an overview of interrogation techniques to the Group. [863] [Delete] Mr. Becker, the former JTF-GTMO Interrogation Control Element (ICE) Chief, had recently returned from GTMO to a civilian job at DIA. Mr. Becker told the Committee that he discussed interrogation operations as well as particular interrogation techniques with the Working Group's senior JAG officers and their civilian counterparts. [864] He told the Committee that he was asked about aggressive techniques and was encouraged to talk about techniques that inflict pain. [865] He also said that he advised the Working Group to consider SERE resistance training techniques. [866] [Delete] The Working Group tasked DIA with providing a list of interrogation techniques and their effectiveness so that the Group could assess their legality. [867] DIA relied on Mr. Becker to produce that list. [868] [Delete] Mr. Becker compiled a list of 36 techniques for the Working Group. [869] The list included techniques from Army Field Manual 34-52; techniques from Category II of the October 11, 2002 GTMO request, including stress positions, isolation, deprivation of light and auditory stimuli, hooding, 20 hour interrogations, forced grooming, and use of phobias, such as dogs; and all four techniques from Category III of the GTMO request, i.e., use of scenarios to convince the detainee that death or severely painful consequences are imminent, exposure to cold weather or water, use of a wet towel and dripping water, and the use of mild, non-injurious physical contact. [870] Mr. Becker also listed three "less common techniques" for the Working Group's consideration, i.e., use of drugs, use of female interrogators, and sleep deprivation." [871] Mr. Becker's memo identified each technique, assessed its effectiveness, and in some instances, also assessed legal and policy considerations. [872] [Delete] [delete] Mr. Becker's memo stated that the Category III techniques from the October 11, 2002 GTMO request were '"the most aggressive and controversial" techniques. [873] Mr. Becker stated that the techniques were "currently used against U.S. soldiers in SERE schools, with their consent," but that they would "not comport with the Geneva Conventions" if applied to Prisoners of War (POWs). [874] His memo recommended that the Working Group conduct a policy review on the "reciprocity of treatment of captured U.S. personnel" before implementing any of the Category III techniques. [875] Mr. Becker said that attorneys who consulted with him on the memo added this recommendation. [876] [Delete] [delete] Mr. Becker's memo stated [delete] may have already been using the Category III techniques and stated that [delete] had apparently obtained assistance from JPRA. [877] He wrote: These [Category III] techniques may be employed by [delete] against the detainees they have in custody overseas. We understand [delete] office of the General Counsel did a legal review and established a finding similar to the legal review of the [GTMO SJA]. [Big delete]. The U.S. military uses standardized SOPs and training in their SERE schools. The SOPs establish the necessary checks and oversight that make SERE training both safe and effective. If adopted, those same standards should be applied when interrogating detainees in the GWOT. The SERE SOPs should resolve most of the policy issues regarding the use of the Category [III] counter-resistance techniques. [878] [Delete] [delete] In describing one Category III technique - ''use of a wet towel and dripping water" - Mr. Becker's memo stated that the technique is "very effective," but that there are "wide ranging policy issues." [879] According to the memo, "[t]his particular method is no longer in use at SERE schools, but a similar method, called the waterboard, is very effective and it is understood that the waterboard is one of the techniques used with effect by [delete] interrogators." [880] [Delete] [delete] As to the three "less common techniques" in his memo - use of drugs, use of female interrogators, and sleep deprivation - Mr. Becker stated that "interrogation approaches are limited only by the imagination of interrogators" and that it would be "impossible to list every possible interrogation approach." [881] His memo stated that "drugs such as sodium pentothal and demerol may be used with some effectiveness," that female interrogators could be used to make the detainee feel ''unclean,'' and that "sleep deprivation" can be effective. [882] Mr. Becker told the Committee that he based his statement about the effectiveness of the use of drugs on a rumor that [delete] had used drugs in their interrogation program. [883] [Delete] In addition to asking DIA for a list of interrogation techniques, the Working Group also requested that the Joint Staff provide a list of techniques "currently in effect or previously employed in CENTCOM and SOUTHCOM, techniques the combatant commanders have found to be effective, and techniques the combatant commanders desire to implement with accompanying rationale." [884] [Delete] [delete] SOUTHCOM relied on the JTF-GTMO Commander to respond to the Joint Staff tasking. MG Miller sent SOUTHCOM Commander General Hill a memo on January 21, 2003 on the effectiveness of techniques that had been rescinded by the Secretary of Defense earlier that month. [885] In his memo, MG Miller stated that "[t]he command must have the ability to conduct interrogations using a wide variety of techniques" and listed nine techniques as "essential to mission success." Those nine included use of an isolation facility; interrogating the detainee in an environment other than the standard interrogation room at Camp Delta such as Camp X-Ray; varying levels of deprivation of light and auditory stimuli to include the use of a white room for up to three days; the use of up to 20-hour interrogations; the use of a hood during transportation and movement; removal of all comfort items (including religious items); serving of meals ready to eat (MREs) instead of hot rations; forced grooming, to include shaving of facial hair and head; and the use of false documents and reports. [886] [Delete] MG Miller's January 21, 2003 memo stated that he believed that those nine techniques were lawful and stated: These techniques are not intended to cause gratuitous, severe, physical pain or suffering or prolonged mental harm, but are instead intended to induce cooperation over a period of time by weakening the detainee's mental and physical ability to resist. [887] [Delete] Miller attached another memo to his January 21, 2003 memo for General Hill. That attached memo, also dated January 21, 2003 and entitled "Methods Employed X-Ray Interrogation of ISN 63," bore the same title as a memo dated January 17, 2003. (The earlier memo is described in detail above). Despite describing the same events and being written just days apart, the January 21, 2003 and the January 17, 2003 memos contain substantive differences. [Delete] Several interrogation techniques that the January 17, 2003 memo identified as techniques used in the Khatani interrogation were omitted from the January 21, 2003 version. Among the techniques left out of the latter memo were "physical posturing," "search/strip search," and the presence of "K-9 military police" dogs. [888] In addition, the description of certain techniques differed in the two versions of the memo. For example, in the latter version, "denial of prayer" was removed and replaced with "postponement of prayer" and reference to the [Big delete] to deny him the ability to pray was omitted. [889] [Delete] CENTCOM sent the Working Group's request for a list of techniques to CJTF-180, in Afghanistan. In response, LTC Robert Cotell, the CJTF-180 Deputy Staff Judge Advocate (SJA) produced a memo on January 24, 2003 describing "current and past" interrogation techniques used by CJTF-180 interrogators. [890] LTC Cotell's memo was sent to the Working Group and to the Office of the Secretary of Defense. [891] [Delete] [delete] LTC Cotell's January 24, 2003 memo stated that "[p]rior to their rescission, CJTF-180 used selected techniques contained in SOUTHCOM's [Category] II and III techniques." [892] He identified interrogation techniques used by CJTF-180, including up to 96 hours of isolation; the use of female interrogators to create "discomfort" and gain more information; sleep adjustment, defined as "four hours of sleep every 24 hours, not necessarily consecutive;" use of individual fears; removal of comfort items; use of safety positions; isolation; deprivation of light and sound in living areas; the use of a hood during interrogation; and mild physical contact. [894] Several of these techniques were similar to those approved by the Secretary of Defense for use at GTMO in December 2002. CJTF-180 had obtained a list of those GTMO techniques prior to the time that LTC Cotell had drafted his January 24, 2003 memo. [894] [Delete] [delete] The January 24, 2003 memo also recommended use of five additional techniques, including "deprivation of clothing" to put detainees in a "shameful, uncomfortable situation;" "food deprivation;" "sensory overload - loud music or temperature regulation;" "controlled fear through the use of muzzled, trained, military working dogs;" and ''use of light and noise deprivation." [895] (U) LTG John Abizaid, the Deputy Commander (Forward) U.S. Central Command, stated that the January 24, 2003 memorandum "was thoroughly reviewed" by the Working Group. [896] 3. The Working Group Requests Information from JPRA (U) (U) The Working Group also sought information on interrogation techniques from the SERE community. On January 30, 2003, MAJ Nick Lovelace, an action officer at the Joint Staff Directorate for Intelligence (J2), contacted JPRA on behalf of the Working Group. [897] [Delete] MAJ Lovelace called Mr. Joseph Witsch, the JPRA instructor who had previously conducted training for [delete] and had served as Team Chief at the September 2002 training for GTMO interrogators and behavioral science personnel at Fort Bragg. [898] [Delete] MAJ Lovelace requested material from JPRA "identifying interrogation techniques and methodologies used by the SERE community." [899] According to Mr. Witsch, MAJ Lovelace had already received information from the Army SERE school, but he described the information provided as "insufficient for his tasking." [900] [Delete] Mr. Witsch advised MAJ Lovelace that information on interrogation techniques had already been provided to the Department of Defense General Counsel and to the DIA and he suggested that the Joint Staff action officer coordinate with them. [901] MAJ Lovelace indicated, however, that he was familiar with those materials but that he was looking for "more detail on exact procedures, techniques, and constraints" than had already been provided. [902] [Delete] MAJ Lovelace's request on behalf of the Working Group prompted a discussion at JPRA about the advisability of providing "SERE school methodology in support of the GWOT" to the Working Group and other organizations. [903] In an email to JPRA Chief of Staff Daniel Baumgartner, Mr. Witsch expressed four "serious concerns" about sharing the requested information. [904] [Delete] [delete] First among his concerns was the potential effect that sharing SERE school techniques could have on the training of American personnel. Mr. Witsch wrote: Open source intel and media is flooded with what the USG/OGAs and DOD are currently doing with [Designated Unlawful Combatants (DUCs)]. How long will it take before we see some discussion on SERE school methods and techniques being used to interrogate DUCs. I'll take bets that it will occur in days and weeks versus months! It ain't healthy for our operators to expose how we prepare them to deal with interrogation and captivity in open source media. [905] [Delete] Second, Mr. Witsch stated that the SERE techniques violated national and international laws. He wrote: Our training is based on simulating our captors' passed [sic] performance while tapering the physical/psychological severity and harm to our students. The physical and psychological pressures we apply in training violate national and international laws. We are only allowed to do these things based on permission from DOD management and intense oversight by numerous organizations within DOD. I hope someone is explaining this to all these folks asking for our techniques and methodology! [906] [Delete] [delete] His third concern was that a lack of proper oversight could give rise to significant drift, which, in turn, could pose a risk of investigation and exposure of the organization. Mr. Witsch asked: What do you think is more than likely to happen when one of these organizations gets exposed and because of significant 'drift' and a lack of oversight they go beyond what we do in the SERE schools? The first question will be 'Where did you get your guidance?' Then we get investigated and exposed []. [907] [Delete] [delete] Mr. Witsch's fourth concern was that JPRA would have no control over how the information would be used. He asked: What's been handed out in hard copy and electronically from [] us and the SERE community to meet numerous requests from everybody? We use [sic] to have some general idea when we were dealing with primarily the SERE community. Now it's anybody's guess where the JTTP has gone and how it's being incorporated and used. [908] [Delete] [delete] Mr. Witsch added: I know this is cool stuff and may provide some utility when dealing with DUCs. I'm not saying that we should totally remove ourselves from this endeavor. We must get a handle on all these people seeking information on our stuff within the USG and DOD and control the amount [of] exposure our SERE community/programs are getting. This is getting out of control! [909] [Delete] Lt Col Baumgartner recalled that he managed to delay providing information to the Working Group, but that JPRA later briefed The Judge Advocate General of the Air Force, who was a member of the Working Group, on SERE techniques, including physical pressures. [910] (U) At the initial meeting of the Working Group, in addition to a briefing from the DIA, participants also received a briefing from the Department of Justice's Office of Legal Counsel (OLC). [911] Despite the Secretary's guidance that the Working Group assess the legal issues relating to the interrogations of detainees, DoD General Counsel Jim Haynes, who knew that the OLC "had already done some work" on the issues, requested that the OLC produce a legal opinion to guide the Working Group's deliberations. [912] (U) In the early stages of the Working Group's deliberations, Working Group members had set out to develop their own legal analysis and utilize that analysis in the evaluation of interrogation techniques. [913] A draft of that analysis, dated January 25, 2003, was shared with the DoD General Counsel's office and the OLC. [914] [Delete] The draft reviewed U.S. obligations under international law and concluded that "obligations under the Torture Convention... apply to the interrogation of Operation Enduring Freedom detainees ..." [915] The draft analysis also included a review of articles of the UCMJ and other U.S. legal standards that were potentially applicable to U.S. interrogators. For example, the analysis found that unlawful force used against a detainee could constitute an offense under Article 128 (assault) of the UCMJ, and stated that assault: May be interpreted to include unreasonably offensive poking, slapping, hitting, prodding, or pushing. Hooding not likely included if used for security reasons. Offensive touching would also include more severe techniques (e.g., wet towels, hand cuffing) if not inherent and necessary to custodial conduct. [916] [Delete] The draft analysis also assessed the legality of the techniques that had been requested for approval by GTMO in October 2002, including some of those that the Secretary of Defense had approved for use at GTMO in December 2002. In its draft, the Working Group adopted the conclusion that Navy JAG Corps CDR Stephen Gallotta had reached in his January 9, 2003 memo, writing that: 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. [917] [Delete] The draft Working Group analysis recommended "[a]dditional factual information and legal analysis" to "establish both the legality of the proposed techniques and any limits to be applied to their use." [918] The draft also expressed "significant concerns with some of the substantive measures in the [October 11, 2002 GTMO] proposal as submitted, particularly in Category II and almost all of Category 111." [919] The Working Group's legal analysis was, however, soon superseded by that of the OLC. [920] (U) Within the first two weeks of the Working Group's deliberations, the OLC delivered a draft legal memo to Air Force General Counsel Mary Walker. [921] The OLC's memo, which would be finalized on March 14, 2003, was presented to the Working Group as the "controlling authority for all questions of domestic and international law." [922] Among the Working Group members there was a "great deal of disagreement" with the OLC analysis and "serious concerns and objections over some of the legal conclusions reached by OLC." [923] [Delete] Nevertheless, at Mr. Haynes's direction, Ms. Walker instructed the Working Group to consider the "OLC memorandum as authoritative" and directed that it "supplant the legal analysis being prepared by the Working Group action officers." [924] (U) CAPT Dalton, the Legal Counsel to the Chairman of the Joint Chiefs of Staff, said she was ''very angry" when told that the Working Group would be governed by the OLC's legal analysis. [925] She told the Committee: "There was a point [during the Working Group process] where we were told that we could not argue against the OLC opinion ... that any other legal ideas that we had would not be accepted, particularly when we commented on the draft report." [926] Likewise, Alberto Mora, the Navy General Counsel and a participant in the Working Group, said that "[s]oon upon receipt of the OLC memo, the Working Group leadership began to apply its guidance to shape the content of its report." [927] Mr. Mora stated that "contributions from the members of the Working Group, including [contributions from his office], began to be rejected if they did not conform to the OLC guidance." [928] (U) The final OLC memo, signed by John Yoo on March 14, 2003 (and known commonly as the "Yoo memo"), adopted many of the same conclusions as those of the First Bybee memo (dated August 1, 2002), in which the OLC had significantly narrowed the scope of what constituted torture under federal law. For example, Mr. Yoo's memo repeated OLC's previous analysis of the federal anti-torture statute, 18 U.S.C. § 2340, finding that the statute prohibited "only extreme acts" and that in order to constitute torture, physical pain would have to be equivalent in intensity to that accompanying "serious physical injury, such as organ failure, impairment of bodily functions or even death." [929] (U) The final March 14, 2003 OLC memo, however, added that general criminal statutes, such as the federal anti-torture statute, were inapplicable to the military during the conduct of a war. [930] The OLC concluded that the assault, maiming, interstate stalking, and anti-torture statutes do not apply to the "properly-authorized interrogation of enemy combatants by the United States Armed Forces during an armed conflict." [931] (U) The OLC's conclusion was based, in part, on its analysis of the President's Commander in Chief authority. In the First Bybee memo, the OLC had asserted that "any effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." [932] In keeping with that finding, the March 14, 2003 final OLC memo held that the power to detain and interrogate enemy combatants arose out of the President's constitutional authority as Commander in Chief. [933] "In wartime," according to the memo, "it is for the president alone to decide what methods to use to best prevail against the enemy." [934] (U) In the March 14, 2003 final opinion, the OLC used its broad reading of the Commander-in-Chief authority to conclude that "even if" federal criminal statutes "were misconstrued to apply" to interrogations, the "Department of Justice could not enforce this law or any of the other [applicable] criminal statutes." [935] According to the OLC, "[e] ven if an interrogation method arguably were to violate a criminal statute; the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context." [936] (U) The First Bybee memo and the March 14, 2003 final OLC memo were withdrawn in June 2004 and December 2003, respectively. [937] According to Assistant Attorney General for OLC Jack Goldsmith, the memos were "legally flawed, tendentious in substance and tone, and overbroad ..." [938] (U) The Navy General Counsel Alberto Mora called the OLC memo relied on by the Working Group in 2003 "profoundly in error" and a "travesty of the applicable law." [939] According to Mr. Mora, the "OLC memo proved a vastly more sophisticated version of the Beaver Legal Brief, but it was a much more dangerous document because of the statutory requirement that OLC opinions are binding provided much more weight to its virtually equivalent conclusions." [940] He stated that it became evident to those on the Working Group that the "report being assembled would contain profound mistakes in its legal analysis, in large measure because of its reliance on the flawed OLC Memo." [941] CAPT Dalton likewise said that "to the extent that [the Working Group report] relied on the OLC memo, it did not include what I considered to be a fair and complete legal analysis of the issues involved." [942] She added that being told what their legal opinion had to be "severely constrained [the Working Group's] ability to do an adequate job." [943] The report, she said, had been "geared toward a particular conclusion[]" and the legal analysis was written to support that conclusion. [944] C. Working Group Drafts Report Recommending Interrogation Techniques (U) (U) When the Secretary of Defense directed the DoD General Counsel to set up the Working Group, the Secretary instructed him to complete the work within 15 days. [945] Although that goal was not met, the Working Group produced several drafts during that time frame and circulated a draft "Final Report" on February 4, 2003. [946] [Delete] According to VADM Church's report, the General Counsel of the Department of Defense, Jim Haynes, "participated in several meetings" from the "initiation of the Working Group until the report was finalized" at which "the Working Group progress and recommendations were discussed." [947] [Delete] Drafts of their report from this time period reflect the influence that SERE had on the Working Group's consideration of interrogation techniques. In a draft of the Working Group report, dated January 27, 2003, the report identified two categories of "interrogation techniques proven to be effective" - (1) those techniques that were "currently used by trained interrogators in accordance with U.S. Military Doctrine and policy" and (2) "additional techniques" deemed "acceptable for use in accordance with ancillary military training processes such as SERE schools." [948] [Delete] The first category of techniques, which the January 27, 2003 draft report identified as those already in use and "proven to be effective," included techniques not listed in Army Field Manual 34-52, such as isolation, hooding, use of prolonged interrogations, mild physical contact, removal of clothing, forced grooming, dietary manipulation, use of phobias to increase levels of stress, deprivation of light and auditory stimuli, environmental manipulation, sleep adjustment, prolonged standing, and deception. [949] In describing one of these techniques - deprivation of light and auditory stimuli - the draft report noted (in an apparent reference to SERE resistance training) that it was an "effective technique used in military training." [950] [Delete] [delete] The second category of techniques in the January 27, 2003 draft Working Group report identified as "proven to be effective" were those in use "with ancillary military training processes such as SERE schools." [951] The draft report noted that this second category of techniques "should only be applied for detainees who are extremely resistant" to the first category of techniques and "who the interrogators strongly believe have vital information." [952] The techniques include use of stress positions, sleep deprivation, enforced physical training. face slap/stomach slap, water immersion, walling, use of wet towel on face or the "waterboard," use of smoke pipe, and use of drugs. [953] In describing these techniques, the Working Group draft made repeated reference to use of the techniques at SERE schools - e.g., "selected stress positions are used in U.S. Military Survival Evasion Resistance and Escape (SERE) schools," the "face slap/stomach slap ... is used in SERE training," "water immersion . . . . is effectively used in SERE courses," ''use of a wet towel on face or the 'waterboard' ... is the most severe technique used at U.S. Military SERE schools," ''use of smoke pipe ... is also used at the SERE School." [954] [Delete] According to JPRA's operating instructions, the purpose of subjecting students to physical pressures in SERE school is not to obtain information, but ''to project the student's focus into the resistance scenario and realistically simulate conditions associated with captivity and resistance efforts." [955] The JPRA operating instructions state that ''the application of physical pressure is necessary to produce the correct emotional and physiological projection a student requires for stress inoculation ..." [956] [Delete] While the draft report described the two lists of techniques as "proven to be effective," it did not discuss the purpose for which the techniques were proven effective. [Delete] As Working Group participants made revisions to the draft report, the list of interrogation techniques in the report remained largely unchanged. A February 2, 2003 draft report shows virtually the same list of interrogation techniques as the earlier draft. [957] However, unlike the earlier draft, the February 2, 2003 draft excluded almost all references to "SERE schools" or to techniques used in "military training." [958] For example, the entire category of techniques previously identified as techniques in use "with ancillary military training processes such as SERE schools" were instead described in the February 2, 2003 draft as techniques "considered effective by interrogators and for which USSOUTHCOM and USCENTCOM have requested approval." [959] [Delete] By the time the Working Group issued its draft "Final Report" on February 4, 2003, the report made no reference to SERE schools or techniques used in "military training," [960] despite the fact that most of the SERE techniques remained in the report. [961] [Delete] The February 4, 2003 draft "Final Report" recommended approval of 36 interrogation techniques for use with unlawful combatants outside the United States. [962] (U) The report also listed, but did not recommend approval of, three additional techniques that the Working Group said it lacked sufficient information to evaluate fully - use of stress positions, deprivation of light and auditory stimuli, and water immersion/wetting down. [963] Two of the three techniques that the Working Group lacked enough information to make a judgment on, i.e., stress positions and deprivation of light and auditory stimuli, were among those recommended for approval by Mr. Haynes and approved by the Secretary of Defense two months earlier, on December 2, 2002. [Delete] Of the 36 recommended interrogation techniques in the February 4, 2003 draft, 26 techniques were recommended for general use and 10 techniques were recommended for use with certain limitations. [964] The 26 techniques recommended in the February 4, 2003 report for general use included 19 techniques from Army Field Manual 34-52 or its predecessor, and seven techniques that did not comport with the Field Manual, i.e., hooding, mild physical contact, dietary manipulation, environmental manipulation, sleep adjustment, false flag, and threat of transfer. [965] The report also recommended approval of 10 additional "exceptional" techniques for use with certain limitations. [966] The 10 "exceptional" techniques included isolation, prolonged interrogations, forced grooming, prolonged standing, sleep deprivation, physical training, face slap/stomach slap, removal of clothing, increasing anxiety by use of aversions, and the waterboard. [967] (U) Many of the 10 "exceptional" techniques in the report, were similar to techniques identified in earlier versions of the report as either having originated in SERE school or among those previously approved for use at GTMO and identified by Mr. Becker, the former GTMO ICE Chief, in his list for the Working Group. (U) Each of the 36 recommended techniques was included in a color-coded matrix or a "stoplight" chart and designated as either "green," "yellow," or "red" to signify the Working Group's assessment of legal and policy considerations. [968] [Delete] Waterboarding was the only technique evaluated as "red" in any area of consideration in the February 4, 2003 report, but the Working Group report continued to recommend at that time that it be approved for use. [969] That "red" designation meant that the Working Group determined that there was a major issue in law or policy with respect to waterboarding "that cannot be eliminated." [970] The Working Group rated the waterboard as red under U.S. domestic law and the prohibition against cruel, inhuman and degrading treatment in the Torture Convention. [971] The Working Group also indicated that the waterboard was not consistent with historical U.S. forces' interrogation role; prior U.S. public statements; or major partner nation reviews. In addition, the report indicated that the technique could have an effect on the treatment of captured U.S. forces, could potentially affect detainee prosecutions; was "inconsistent with modern U.S. military perceptions in decency in dealing with prisoners" and was "a significant departure from contemporary American military approach to the laws of war." [972] The February 4, 2003 Working Group Report gave the waterboard its only overall red rating and recommended that the approval authority for the technique be "no lower than the [Secretary of Defense]." [973] (U) The Working Group's assessment of the techniques on the stoplight chart was governed by the Office of Legal Counsel (OLC) memo. The result, according to then-CAPT (now RADM) Dalton, was that drafts of the stoplight chart were "absolutely wrong legally." [974] According to RADM Dalton: [T]here was a column originally . . . in the stoplight chart, that was labeled "Customary International Law." So one of the things we were supposed to assess was whether or not the techniques were consistent with customary international law. The stoplight chart had all 36 techniques green under customary international law because the OLC opinion and thus the Working Group report maintained that customary international law did not impose any constraints on the actions . . . That green column was absolutely wrong legally . . . it was embarrassing to have it in there, and one of my comments to the report was ... You need to delete that column entirely because it's embarrassing to have it in there and it's not reflective of the law. [975] (D) In addition to concerns raised by then-CAPT Dalton, almost immediately, the February 4, 2003 draft final report and its recommended techniques generated objections from top military lawyers. Within days of receiving the report and continuing over the next month, the Deputy Judge Advocate General (JAG) of the Air Force Jack Rives, the Navy JAG Michael Lohr, the Army JAG Thomas Romig, and the Staff Judge Advocate to the Commandant of the Marine Corps Kevin Sandkuhler submitted memoranda expressing serious concerns about the report and the techniques it recommended. (U) The senior military lawyers raised the following concerns:
(U) According to DoD General Counsel Jim Haynes, the Secretary of Defense met with participants of the Working Group and was aware of concerns reflected in the comments made by the senior military lawyers. [984] (U) On March 6, 2003, the Working Group circulated another version of its report entitled "Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations." [Delete] According to the Church Report, when circulated, the March 6, 2003 version was considered final, but at some point, it was later re-characterized as a draft. [985] Over the objections of the military lawyers, all 36 techniques from the February 4, 2003 draft report remained a part of the Working Group's recommendations and were included in the March 6, 2003 report. [986] The three techniques that the Working Group could not evaluate fully also remained in the March 6, 2003 report, but were not recommended for approval. [987] By March 6, 2003, the Working Group still "had not received adequate information" regarding these three techniques, including two that had been approved by the Secretary in December 2002, to conduct a "legal or policy analysis." [988] (U) Upon receiving the March 6, 2003 version, senior military lawyers continued to raise concerns that the recommendations were based on a flawed OLC legal analysis. One JAG noted that the draft report's introduction, which said it was '''informed' by [the] OLC opinion ... create[d] an incorrect impression" since "[m]ost (if not all) working group members and TJAGs disagree[d] with significant portions of [the] OLC opinion, but were forced to accept it." [989] The military lawyers also continued to express the view that the recommended techniques would expose American soldiers to potential prosecution; would invite reciprocal treatment of captured U.S. personnel; could affect the admissibility of detainee statements in criminal prosecutions, including military commissions; and were not proven to result in obtaining reliable information from those being interrogated. [990] D. SOUTHCOM Presses for Additional Techniques (U) [Delete] As the various Working Group drafts were being discussed, JTF-GTMO and SOUTHCOM pressed for authority to use additional interrogation techniques at GTMO. On February 12, 2003, in advance of a planned briefing by MG Miller to Deputy Secretary of Defense Wolfowitz, LTC Beaver sent an email to the Department of Defense's Associate Deputy General Counsel for International Affairs Eliana Davidson stating that "we must have interrogation technique approval immediately and will speak to Mr. Wolfowitz about this. The hallmark is isolation and up to 20 hour interrogation. Without that we can't be successful in the community environment. We need commitment from the senior leadership to let us do this mission." [991] [Delete] Three days later, LTC Beaver followed up with the General Counsel's office, stating that MG Miller "was informed by DEPSECDEF that we would have interrogation techniques (isolation and up to 20 hours) approved by Wednesday [February 19, 2003]. We hope this happens." [992] [Delete] A month later, on March 12, 2003, a Deputy Staff Judge Advocate at SOUTHCOM sent LTC Beaver an email informing her about a March 11, 2003 meeting that was attended by Secretary of Defense Donald Rumsfeld, SOUTHCOM Commander GEN James Hill, and Chairman of the Joint Chiefs of Staff (CJCS) Gen Richard Myers, where interrogation techniques were discussed. [993] According to the Deputy SJA at SOUTHCOM, during the meeting, Gen Myers, raised a concern that some of the techniques discussed for GTMO "could be illegal depending on how far they were used." [994] The Deputy SJA informed LTC Beaver that GEN Hill "promised the Chairman a paper discussing the techniques we want" and that SOUTHCOM wanted to get a draft memo to GEN Hill by close of business March 20, 2003. [995] LTC Beaver forwarded the email to DoD Associate Deputy General Counsel Eliana Davidson and told her "This email is not good news. It appears something went wrong." [996] Ms. Davidson replied that Mr. Haynes had been at the meeting where interrogation techniques were discussed and that she was trying to get some clarification on the meeting. [997] [Delete] On March 21, 2003, GEN Hill sent a memorandum to Gen Myers regarding the interrogation techniques that had been rescinded in January. While MG Miller's January 21, 2003 letter to General Hill had listed only nine Category II techniques as "essential," General Hill's March 21, 2003 memo stated that both he and MG Miller felt that approval of all of the previously authorized techniques (in Categories I, II and III) was "essential." [998] General Hill stated that "both Geoff Miller and I believe that we need as many appropriate tools as possible" and called Category II and the one previously authorized Category III technique "critical to maximizing our ability to accomplish the mission, now and in the future." [999] The "critical" techniques referred to by General Hill included stress positions, deprivation of light and auditory stimuli, removal of clothing, use of detainee phobias such as dogs, and the one Category III technique the Secretary had authorized, which included grabbing, poking, and light pushing. E. JPRA Briefs Members of the Working Group on SERE Techniques (U) [Delete] Prior to issuing a final report on April 4, 2003, members of the Working Group again sought information from JPRA on SERE techniques. The JAG of the Air Force, Maj Gen Thomas Fiscus, and two other military officers, visited JPRA and were briefed on SERE physical pressures. [1000] At the briefing, JPRA described its previous support to "high value target" interrogations, discussed the processes and procedures used in SERE training, and reviewed the "application of physical pressures in an operational environment." [1001] JPRA Chief of Staff Daniel Baumgartner told Maj Gen Fiscus that JPRA had previously provided information on techniques used in SERE schools to DoD Deputy General Counsel Richard Shiffrin. [1002] [Delete] On March 28, 2003, the Secretary of Defense met with a number of senior advisors including Deputy Secretary Paul Wolfowitz, DoD General Counsel Jim Haynes, and Chairman of the Joint Chiefs of Staff Gen Richard Myers, to discuss the interrogation techniques being considered by the Working Group. [1003] After that meeting, the Secretary decided to expressly authorize 24 interrogation techniques, including five that were not listed in the Army Field Manual (one of these five was classified as an "exceptional" technique). [1004] [Delete] The Joint Chiefs of Staff met on March 31, 2003, and were briefed about Secretary Rumsfeld's decision. According to CAPT Dalton, the Legal Counsel to the Chairman of the Joint Chiefs of Staff, the "Chiefs recognized that the approved strategies would not hamper the combatant commander in the accomplishment of his mission, because the door was open to request additional strategies on a case-by-case basis if needed in compelling cases." [1005] [Delete] The last and final version of the Working Group report was issued on April 4, 2003. The report was similar to the March 6, 2003 version, except that it did not recommend waterboarding or list the three other exceptional techniques that the Working Group could not evaluate fully - stress positions, deprivation of light and auditory stimuli, and water immersion/wetting down. [1006] At the direction of the DoD Principal Deputy General Counsel Daniel Dell'Orto, the April 4, 2003 report was not circulated to the participants of the Working Group. [1007] (U) In fact, when it came to finalizing the report, some participants of the Working Group who had raised objections to the report were excluded from the process and did not even know that the report had been completed. [1008] According to Alberto Mora, the Navy General Counsel, "Neither I, [the Navy Office of the General Counsel], nor - to my knowledge - anyone else in the [Department of Navy] ever received a completed version of the Working Group report. It was never circulated for clearance. Over time, I would come to assume that the report had never been finalized." [1009] Mr. Mora said that he only learned of the final report nearly a year later while watching a "televised congressional hearing on the Abu Ghraib scandal." [1010] [Delete] On April 5, 2003, Gen Myers forwarded a memo proposing that the Secretary of Defense authorize 24 of the interrogation techniques reviewed during the Working Group process. [1011] In response, Marshall Billingslea, the Principal Deputy Assistant Secretary of Defense for Special Operations/Low-Intensity Conflict sent a memo to the Secretary of Defense raising concerns about the omission of certain techniques and recommending that the Secretary approve all 35 techniques "endorsed by the Working Group." [1012] Mr. Billingslea's memo stated: The current memo omits some interrogation techniques that are not controversial from either a legal, or policy standpoint. For instance, blindfolding ('hooding'), lightly touching a detainee, and threatening transfer to a 3rd country all seem reasonable techniques to approve. The draft memo also omits some techniques which the Working Group found to be legally-permissible, but which should be done only with appropriate oversight. While the Working Group felt that the Combatant Commander could approve these measures, we recommend requiring that you be notified prior to their use. The measures in question include using prolonged interrogations, prolonged standing in non-stress positions, forced grooming, requiring physical exercise, face/stomach slaps to cause surprise but not pain or injury, etc. Finally, we recommend delegating certain techniques to General Miller at GTMO. [1013] (U) On April 16, 2003, the Secretary of Defense authorized the Commander of SOUTHCOM to use 24 interrogation techniques. [1014] Of the 24 techniques, four - Mutt and Jeff, incentive/removal of incentive, pride and ego down, and isolation - required that the SOUTHCOM Commander make a determination of "military necessity" and notify the Secretary in advance of using them. [1015] The Secretary authorized the use of the other 20 techniques with all detainees at GTMO so long as GTMO personnel adhered to certain safeguards. Those authorized techniques included dietary manipulation, environmental manipulation, sleep adjustment, and false flag, none of which were listed in the Army Field Manual. (U) In addition to expressly authorizing the 24 techniques listed in his April 16, 2003 memorandum, Secretary Rumsfeld wrote in his memo: "If, in your view, you require additional interrogation techniques for a particular detainee, you should provide me, via the Chairman of the Joint Chiefs of Staff, a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee." [1016] (U) CAPT Dalton told the Committee that all of the techniques recommended by the Working Group were available for request. [1017] That understanding was shared by the Joint Chiefs, who she said believed that the door was open to request additional strategies on a case-by-case basis if needed in compelling cases." [1018] The GTMO Commander would soon seek and receive authority to use additional techniques that went beyond the 24 expressly approved in the Secretary's April 16, 2003 memo. _______________ Notes: 857. Memorandum from the Secretary of Defense for the General Counsel of the Department of Defense, Detainee Interrogations (January 15, 2003). In this memo, the Secretary also directed the Working Group to address the "[l]egal considerations raised by interrogation of detainees held by US. Armed Forces;" "[p]olicy considerations with respect to the choice of interrogation techniques, including contribution to intelligence collection, effect on treatment of captured U.S. military personnel, effect on detainee prosecutions, [and] historical role of U.S. armed forces in conducting interrogations;" and "[r]ecommendations for employment of particular interrogation techniques by DoD interrogators." 858. Memorandum from Department of Defense General Counsel William J. Haynes to Air Force General Counsel Mary Walker, Working Group to Assess Legal, Policy, and Operational Issues Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism (January 17, 2003). 859. Department of Defense, Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations (April 4, 2003); Memorandum from the Secretary of Defense for the General Counsel of the Department of Defense, Detainee Interrogations (January 15, 2003). 860. Proposed Agenda, Working Group Meeting (January 23, 2003). 861. Church Report at 124. 862. Ibid.; Proposed Agenda, Working Group Meeting (January 23, 2003). 863. Proposed Agenda, Working Group Meeting (January 23, , 2003). 864. Committee staff interview of David Becker (September 17, 2007). 865. Ibid. 866. Ibid. The proposed agenda for the Working Group meeting (dated January 23, 2003) includes handwritten comments that reflect a discussion about "All [service] SEER [sic] guidelines" and "techniques." Since this document was produced to the Committee as a part of the source materials collected by VADM Church for his report, the Committee cannot determine whether these handwritten comments are those of a Working Group participant or VADM Church's team. Proposed Agenda, Working Group Meeting (January 23, 2003). 867. [Delete] Proposed Agenda, Working Group Meeting (January 23, 2003); (U) Proposed Detainee Interrogation Working Group Responsibilities (Initial) (Undated) [Delete] DIA's role was described in the memo as, "List, describe and assess the effectiveness of all interrogation techniques that may be effective in obtaining useful information from detainees in the war on terrorism. Suggest relevant policy considerations affecting each." 868. Committee staff interview of David Becker (September 17, 2007). 869. [Delete] Committee staff interview of David Becker (September 17, 2007). The 36 techniques included Direct, Incentive, Emotional Love, Emotional Hate, Fear Up Harsh, Fear Up Mild, Decreased Fear, Pride and Ego Up, Pride and Ego Down, Futility, We Know All, Establish Your Identity, Repetition Approach, File and Dossier, Mutt and Jeff, Rapid Fire, Silence, Change of Scenery, Use of Stress Positions, Use of Falsified Documents and Reports, Use of Isolation Facility, Interrogating Detainees in an Environment other than the Standard Interrogation Booth, Deprivation of Light and Auditory Stimuli, Hooding, Use of 20-Hour Interrogations, Switching the Detainee from Hot Rations to MREs, Removal of All Comfort Items, Forced Grooming, Use of Detainee Phobias, Use of Scenarios Designed to Convince the Detainees that Death or Severely Painful Consequences are Imminent, Exposure to Cold Weather or Water, Use of a Wet Towel and Dripping Water, Use of Mild, Non-Injurious Physical Contact, Use of Drugs, Use of Female Interrogators, and Sleep Deprivation. Defense Intelligence Agency memo, List, describe and assess the effectiveness of all interrogation techniques that may be effective in obtaining useful information from detainees in the war on terrorism. Suggest relevant policy considerations affecting each (undated) (hereinafter "List of interrogation techniques compiled by DIA.") 870. [Delete] List of interrogation techniques compiled by DIA. In describing one technique - use of mild, non injurious physical contact - the ICE Chief explained that "[i]ssues such as grabbing and poking have very minimal policy issues and play a part in the interrogator's efforts to be sincere. Other non-injurious contact such as a face slap or stomach slap are effective in gaining compliance and are used at SERE school. UCMJ policy issues should be resolved." 871. List of interrogation techniques compiled by DIA. 872. Ibid. 873. Ibid. at 3. 874. Ibid. 875. Ibid. 876. Committee staff interview of David Becker (September 17, 2007). 877. List of interrogation techniques compiled by DIA at 3. 878. Ibid. 879. Ibid. 880. Ibid. 881. Ibid at 4. 882. [Delete] [delete] "[1] Use of Drugs: Drugs such as sodium pentothal and demerol may be used with some effectiveness. Significant policy issues must be resolved. [2] Use of Female Interrogators: One al-Qaida resistance method is to pray during interrogations. Prayer is only allowed if the detainee is 'clean.' Having a woman rub scented oil on the detainee's arms and face makes the detainee perceive that he is unclean and he cannot pray until he cleans himself, which he is unable to do until he returns to his cell. The use of female interrogators to put oil on a detainee does not exceed limits already established by DoD policy or the Geneva Conventions. [3] Sleep Deprivation: This can be effective; however there are obvious policy considerations. Guidelines as to the use of sleep deprivation would have to be established." List of interrogation techniques compiled by DIA at 4. 883. Committee staff interview of David Becker (September 17, 2007). 884. Proposed Detainee Interrogation Working Group Responsibilities (Initial) (undated) at 1; Proposed Agenda, Working Group Meeting (January 23, 2003). 885. Memo from MG Geoffrey Miller for Commander, U.S. Southern Command, Effectiveness of the Use of Certain Category n Counter-Resistance Strategies (January 21, 2003) (hereinafter "MG Miller memo, Effectiveness of Certain Category II Strategies (January 21, 2003)"). 886. [Delete] MG Miller, Effectiveness of Certain Category II Strategies (January 21, 2003). Although MG Miller identified only nine "essential" techniques on January 21, 2003, a subsequent memo sent by the SOUTHCOM Commander GEN Hill called all the Category II and the one Category III technique (non-injurious physical contact such as poking and pushing) that the Secretary had authorized in December "critical to maximizing our ability to accomplish the mission, now and in the future." See Church Report at 135 and Section VIII D, infra. 887. MG Miller, Effectiveness of Certain Category II Strategies (January 21, 2003). 888. Methods Employed X-Ray Interrogation ISN 63.(January 17, 2003); Methods Employed X-Ray Interrogation ISN 63 (S) (January 23, 2003), attached to MG Miller's memo, Effectiveness of Certain Category II Strategies (January 21, 2003). 889. Ibid. 890. Church Report at 197; Memo from LTC Robert Cotell to CENTCOM SJA, CJTF 180 Interrogation Techniques (January 24, 2003) at 1. 891. US Central Command Action Processing Form, Approval for the Use of Certain Interrogation Techniques in CJTF-180's AOR (April 4, 2003); Memorandum from GEN John P. Abizaid to VADM Church, Responses to Request for Information from VADM Church (August 6, 2004). 892. Memo from LTC Robert Cotell to CENTCOM SJA, CJTF 180 Interrogation Techniques (January 24, 2003) at 1. 893. Memo from LTC Robert Cotell to CENTCOM SJA, CJTF 180 Interrogation Techniques (January 24, 2003) at 8. The Church Report called the distinction between stress positions and safety positions at the Bagram Collection Point "largely academic." Church Report at 200. 894. Secretary of Defense Approval of Counter-Resistance Techniques (December 2, 2002); Memo from LTC Robert Cotell to CENTCOM SJA, CJTF 180 Interrogation Techniques (January 24, 2003) at 1. 895. Memo from LTC Robert Cotell to CENTCOM SJA, CJTF 180 Interrogation Techniques (January 24, 2003) at 1, 4-5, and 9. 896. Memorandum from GEN John Abizaid to VADM Church, Responses to Request for 1nformationfrom VADM Church (August 6, 2004). 897. Email from Joseph Witsch to Lt Col Dan Baumgartner (January 30, 2003). 898. Ibid. 899. The Joint Staff action officer stated that they needed the information immediately, since the "'blue ribbon panel' organized by the AF General Counsel" intended to "work through the weekend to meet this immediate requirement." Email from Joseph Witsch to Dan Baumgartner (January 30, 2003). 900. Ibid. 901. Ibid. 902. Ibid. 903. Ibid. 904. Email from Joseph Witsch to Lt Col Daniel Baumgartner (January 31, 2003). 905. Ibid. 906. Ibid. 907. Ibid. 908 Ibid. 909. Ibid. 910. Committee staff interview of Lt Col Dan Baumgartner (August 8, 2007); See Section VIII F, infra. 911. Church Report at 124; Proposed Agenda, Working Group Meeting (January 23, 2003). 912. Memorandum from the Secretary of Defense for the General Counsel of the Department of Defense, Detainee Interrogations (January 15, 2003); Committee staff interview of William J. Haynes II (April 25, 2008) at 250; Hearing on the Nomination of William James Haynes II to be U.S. Circuit Judge for the Fourth Circuit, U.S. Senate Committee on the Judiciary, 109th Cong. (July 11, 2006) at 14. 913. Church Report at 124. 914. [Delete] Committee staff interview of Eliana Davidson (February 21, 2008); Detainee Interrogations: Survey of Legal and Policy Considerations (draft) (undated). The Department of Defense allowed the Committee to review this document, but would not permit the Committee to keep a copy of the document. 915. [Delete] Detainee Interrogations: Survey of Legal and Policy Considerations at 1-8. 916. Ibid. at 10. 917. Ibid. at 20. 918. Ibid. 919. Ibid. 920. In comments to the Air Force General Counsel Mary Walker about a March 6, 2003 draft of the Working Group report, the Navy TJAG RADM Michael Lohr encouraged the Working Group to incorporate a reference to the OLC opinion into its report, noting that the draft report "contain[ed] large segments of DoJ work product, rather than being 'informed' by DOJ." Memo from RADM Michael Lohr to Mary Walker, Comments on the 6 March 2003 Detainee Interrogation Working Group Report (March 13, 2002) at 1. 921. Mora, Statement for the Record at 16; Hearing on the Nomination of William Haynes II to be U.S. Circuit Judge for the Fourth Circuit, U.S. Senate Committee on the Judiciary (July 11, 2006) at 14. 922. Church Report at 124. 923. Ibid. 924. Church Report at 126 (citing February 2, 2003 Working Group draft) 925. Committee staff interview of Jane Dalton (April 10, 2008) at 167. 926. Ibid. at 165. 927. Mora, Statement for the Record at 17. Other participants of the Working Group confirmed that "in drafting the subject report and recommendations, the legal opinions of the [OLC] were relied on almost exclusively." Memo from Air Force Deputy JAG Jack Rives to Air Force General Counsel, Final Report and Recommendations of the Working Group to Assess the Legal Policy and Operational Issues Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism (February 5, 2003). 928. Mora, Statement for the Record at 17. 929. Memorandum from John Yoo to William J. Haynes II, Re: Military Interrogations of Alien Unlawful Combatants Held Outside the United States (March 14, 2003) at 34-47 (hereinafter "Yoo Memo (March 14, 2003)"). 930. Those canons included "the avoidance of constitutional difficulties, inapplicability of general criminal statutes to the conduct of the military during war, inapplicability of general statutes to the sovereign, and the specific governs the general." Yoo Memo (March 14, 2003) at 11-19. 931. Yoo Memo (March 14, 2003) at 11-19. Despite concluding that such statutes are inapplicable to the military during the conduct of a war, the OLC memo nonetheless considered whether use of certain specific techniques by an interrogator would constitute an offense under those laws. For example, the OLC memo considered whether slapping (or attempting to slap) a detainee would constitute assault or run afoul of U.S. constitutional standards. See Yoo Memo (March 14, , 2003) at 25, 28, 62, 68. 932. According to Assistant Attorney General for the Office of Legal Counsel Jack Goldsmith, who withdrew both the First Bybee memo and the March 14, 2003 final OLC memo, "this extreme conclusion has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law." Goldsmith continued: "And the conclusion's significance sweeps far beyond the interrogation opinion or the torture statute. It implies that many other federal laws that limit interrogation -- anti-assault laws, the 1996 War Crimes Act, and the Uniform Code of Military Justice -- are also unconstitutional, a conclusion that would have surprised the many prior presidents who signed or ratified those laws, or complied with them during wartime." The conclusion was even more "inappropriate," according to Goldsmith because "it rested on cursory and one-sided legal arguments that failed to consider Congress's competing wartime constitutional authorities, or the many Supreme Court decisions potentially in tension with the conclusion." Goldsmith, The Terror Presidency at 148-149. 933. Yoo Memo (March 14, , 2003) at 2-6. 934. Ibid. at 5. 935. Ibid. at 18. 936. Ibid. 937. Goldsmith, The Terror Presidency at 159; In December 2003, Assistant Attorney General Jack Goldsmith advised the Department of Defense General Counsel William J. Haynes not to rely on the March 14, 2003 final OLC memo. Committee staff interview of Jack Goldsmith (February 4, 2008). 938. Goldsmith, The Terror Presidency at 151. 939. Mora, Statement for the Record at 17; SASC Hearing (June 17, 2008). 940. Mora, Statement for the Record at 17. Legal Counsel to the Joint Chiefs then-CAPT Jane Dalton also noted that the March 14, 2003 final OLC opinion was "similar to the Beaver analysis" in "approaches and methodology." Committee staff interview of RADM Jane Dalton (April 10, 2008) at 171. 941. Mora, Statement for the Record at 17. 942. Committee staff interview of RADM Jane Dalton (April 10, 2008) at 173. 943. Committee staff interview of RADM Jane Dalton (April 10, 2008) at 167. 944. Ibid. at 171. 945. Memorandum from Secretary of Defense Donald Rumsfeld to Department of Defense General Counsel William J. Haynes II, Detainee Interrogations (January 15, 2003). 946. Church Report at 130. 947. Ibid. 948. DoD Working Group draft report (January 27, 2003) at 25-28. 949. Ibid. at 26-28. 950. Ibid. at 27. 951. Ibid. at 28. 952. Ibid. 953. Ibid. 954 Ibid. 955. JPRA, OL-FA JSSA Instructor Guide, Section 5.1 (September 21, 1994) (emphasis added) 956. Ibid. 957. The one exception was that the "deception" technique in the January 27, 2003 draft was replaced with the "false flag" technique in the February 2, 2003 draft. False flag is a type of deception technique used to try and "convince the detainee that individuals from a country other than the United Sates are interrogating him." DoD Working Group draft report (February 2, 2003). 958. Ibid. 959. In the February 2, 2003 draft, the technique known as "deprivation of light and auditory stimuli," which was identified in the earlier draft as an "effective technique used in military training" was moved into this category. DoD Working Group draft report (January 27, 2003) at 28; DoD Working Group draft report (February 2, 2003). 960. DoD Working Group draft report (February 4, 2003) at 60-64. 961. Ibid. at 60-64. 962. Ibid. at 70; Church Report at 130. 963. Church Report at 136. 964. Church Report at 130; Working Group draft report (February 4, 2003). 965. [Delete] According to the Church Report, "The first 19 of the techniques were identical to the 17 specifically enumerated in FM 34-52, except that the draft added one technique ('Mutt and Jeff,' which the draft described as 'a team consisting of a friendly and harsh interrogator') that was in the 1987 version of FM 34-52 but was not found in the [then] current version, and the draft also listed Change of Scenery Up and Change of Scenery Down as separate techniques, rather than using the more general Change of Scene technique listed in FM 34-52." Church Report at 127. 966. [Delete] The report stated that use of techniques listed in the report would be subject to conditions, i.e., "Limited to specified interrogation centers; There is a good basis to believe that the detainee possesses critical intelligence; The detainee is medically and operationally evaluated as suitable (considering all techniques in combination); Interrogators are specifically trained for the technique(s); Subject to a special interrogation plan (including reasonable safeguards, limits on duration, intervals between applications, termination criteria and the presence or availability of qualified medical personnel); Appropriate supervision; and Appropriate specified senior level approval for use with any specific detainee (after considering the foregoing and receiving legal advice)." Working Group draft report (February 4, 2003) at 60-64, 70. 967. Church Report at 130; [Delete] Working Group Report at 60-64, 70 (February 4, 2003) "Increasing anxiety by use of aversions" replaced a technique referred to as "use of phobias to increase levels of stress" in previous versions of the report. Despite their differing names, the techniques were described similarly and included use of dogs as examples of the technique. 968. Green indicated "no significant constraint on use raised by the respective" law or policy under consideration, assuming adequate procedural safeguards; Yellow indicated that the law or policy under consideration did "not preclude use," but that there were "problematic aspects that cannot be eliminated by procedural safeguards; and "Red" indicated a "major issue" in the law or policy under consideration "that cannot be eliminated." Working Group draft report (February 4, 2003). 969. Ibid. 970. Church Report at 130; Working Group draft report (February 4, 2003). T 971. [delete] The Working Group also rated the waterboard as yellow under the prohibition against torture in the Torture Convention. Working Group draft report (February 4, 2003). 972. Working Group draft report (February 4, 2003). 973. Ibid.; Church Report at 130. 974. Committee staff interview of RADM Jane Dalton (April 10, 2008) at 175. 975. Ibid. at 175-176. 976. Memo from Maj Gen Jack Rives to Mary Walker, Final Report and Recommendations of the Working Group to Assess the Legal, Policy and Operational Issues Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism (February 5, 2003) (hereinafter "Rives to Walker (February 5, 2003)"); Memo from Brig Gen Kevin Sandkuhler to Mary Walker, Working Group Recommendations on Detainee Interrogations (February 27, 2003) (hereinafter Sandkuhler to Walker (February 27, 2003)"); Memo from U.S. Navy Judge Advocate General RADM Michael Lohr to Air Force General Counsel Mary Walker, Working Group Recommendations Relating to Interrogation of Detainees (February 6, 2003) (hereinafter "Lohr to Walker (February 6, 2003)''). 977. Rives to Walker (February 5, 2003); Memo from Air Force Deputy Judge Advocate General MG Jack Rives to Air Force General Counsel Mary Walker, Comments on Draft Report and Recommendations of the Working Group to Assess the Legal, Policy and Operational Issues Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism (February 6, 2003) (hereinafter "Rives to Walker (February 6, 2003)"). 978. Rives to Walker (February 5, 2003); Rives to Walker (February 6, 2003); Sandkuhler to Walker (February 27, 2003); Memo from MG Thomas Romig to Mary Walker, Draft Report and Recommendations of the Working Group to Access [sic] the Legal, Policy and Operational Issues Related to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism (March 3, 2003) (hereinafter "Romig to Walker (March 3, 2003)"). 979. Rives to Walker (February 5, 2003); Rives to Walker (February 6, 2003); Sandkuhler to Walker (Feb 27, 2003); Romig to Walker (March 3, 2003). 980. Rives to Walker (February 5, 2003); Rives to Walker (February 6, 2003); Lohr to Walker (February 6, 2003); Sandkuhler to Walker (February 27, 2003). 981. Rives to Walker (February 6, 2003); Sandkuhler to Walker (February 27, 2003). 982. Rives to Walker (February 5, 2003); Rives to Walker (February 6, 2003); Sandkuhler to Walker (February 27, 2003). 983. Sandkuhler to Walker (February 27, 2003). 984. Committee staff interview of William J. Haynes II (April 25, 2008) at 263. 985. Church Report at 5. 986. [Delete] "An additional caution was incorporated into the March 6, 2003 recommendations regarding technique 36, the waterboard: 'As a matter of policy, technique 36 should be used only in instances of extreme necessity. Some members of the working group believed that it should not be used by U.S. Armed Forces personnel.'" Church Report at 34; Working Group draft report (March 6, 2003) at 68-69. 987. Working Group draft report (March 6, 2003) at 68-69. 988. Ibid. 989. Email from Col James Walker to Daniel Ramos (March 10, 2003). 990. Church Report at 134-135. 991. Email from LTC Diane Beaver to Eliana Davidson (February 12, 2003). 992. Ibid. 993. Email from COL Terrence Farrell to LTC Diane Beaver (March 12, 2003). 994 Ibid. 995. Ibid. 996. Email from LTC Diane Beaver to Eliana Davidson (March 13, 2003). 997. Email from Eliana Davidson to LTC Diane Beaver (March 13, 2003). 998. Memo from GEN Hill to Chairman of the Joint Chiefs of Staff, Information on Interrogation Techniques (March 21, 2003). 999. Ibid. 1000. Committee staff interview of Lt Col Daniel Baumgartner (August 8, 2007). 1001. JPRA Power Point presentation, Project 22B (June 2003). 1002. Committee staff interview of Lt Col Daniel Baumgartner (August 8, 2007). 1003. [Delete] "According to the Secretary's daily schedule, the advisors at the meeting included Mr. Haynes, Gen Myers, the Deputy Secretary of Defense, Paul Wolfowitz, the Undersecretary of Defense for Intelligence, Stephen Cambone, the Under Secretary of Defense for Policy, Douglas Feith, the Principal Deputy Assistant Secretary of Defense for Special Operations and Low Intensity Conflict, Marshall Billingslea, and CAPT Dalton." Church Report at 136. By the time the Secretary met with his advisors, the Working Group had removed waterboarding from consideration. Ibid. at 135-6. 1004. Ibid. at 136. 1005. Memo from RADM Jane Dalton to VADM Church, Request for Information (August 10, 2004) at 5. 1006. Department of Defense, Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations (April 4, 2003). 1007. Church Report at 136. 1008. SASC Hearing (June 17, 2008) (Testimony of Alberto Mora); Military Justice and Detention Policy in the Global War on Terrorism, Senate Committee on Armed Services, Subcommittee on Personnel, 109th Cong. (July 14, 2005) (Testimony of MG Thomas Romig). 1009. Mora, Statement for the Record at 20. 1010. Ibid 1011. Church Report at 137. 1012. Memo from Marshall Billingslea to Secretary Rumsfeld, Interrogation Methods for GTMO (April 10, 2003). 1013. Ibid. 1014. Memorandum from Secretary of Defense Donald Rumsfeld to GEN James T. Hill, Counter-Resistance Techniques in the War on Terrorism (April 16, 2003) (hereinafter "Secretary Rumsfeld to GEN Hill (April 16, 2003)"). 1015. Secretary Rumsfeld to GEN Hill (April 16, 2003). 1016. Ibid 1017. Committee staff interview of RADM Jane Dalton (April 10, 2008) at 225. 1018. Memo from RADM Jane Dalton to VADM Church, Request for Information (August 10, 2004) at 5.
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