"If the Detainee Dies, You're Doing it Wrong"

Editors' Note: This article has been corrected.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Correction: The former deputy general counsel for intelligence mentioned in this article is named Richard Shiffrin, not Paul Schiffrin.

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