'If the detainee dies you're doing it wrong'

McClatchy NewspapersJune 17, 2008 

Following are excerpts from some of the documents released today by the Senate Armed Services Committee:

"The CIA is not held to the same rules as the military. In the past when the ICRC (International Committee of the Red Cross) has made a big deal about certain detainees, the DOD has 'moved' them away from the attention of the ICRC. Upon questioning from the ICRC about their whereabouts, the DOD's response has repeatedly been that the detainee merited no status under the Geneva Convention. The CIA has employed aggressive techniques on less than a handful of suspects since 9/11.

"Under the Torture Convention, torture has been prohibited by international law, but the language of the statutes is written vaguely. Severe mental and physical pain is prohibited. The mental part if explained as poorly as the physical. Severe physical pain described as anything causing permanent damage to major organs or body parts. Mental torture described as anything leading to permanent, profound damage to the senses or personality. It is basically subject to perception. If the detainee dies you're doing it wrong.

" . . . Any of these techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual. Medical personnel should be present to treat any possible accidents. . . . When the CIA has wanted to use more aggressive techniques in the past, the FBI has pulled their personnel from the theatre.

" . . . if someone dies while aggressive techniques are being used, regardless of cause of death, the backlash of attention would be severely detrimental. Everything must be approved and documented."

_ Jonathan Fredman, chief counsel, CIA Counter-terrorism Center, according to the minutes of an Oct. 2, 2002, Counter Resistance Strategy Meeting.

"This looks like the kind of stuff Congressional hearings are made of. Quotes from LTC (lieutenant colonel) Beaver regarding things that are not being reported gives the appearance of impropriety. Other comments like 'It is basically subject to perception. If the detainee dies you're doing it wrong' and 'Any of the techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual. Medical personnel should be present to treat any possible accidents' seem to stretch beyond the bounds of legal propriety. . . . Someone needs to be considering how history will look back at this."

_ e-mail from Mark Fallon, deputy commander, Defense Department Criminal Investigation Task Force to five other DOD officials, Oct. 28, 2002.

"I am forwarding Joint Task Force 170's proposed counter-resistance technologies. I believe the first two categories of techniques are legal and humane. I am uncertain whether all the techniques in the third category are legal under US law, given the absence of judicial interpretation of the US torture statute. I am particularly troubled by the use of implied or expressed threats of death of the detainee or his family. However, I desire to have as many options as possible at my disposal and therefore request that the Department of Defense and Department of Justice lawyers review the third category of techniques."

_ Gen. James T. Hill, USA, Commander, U.S. Southern Command, in a memo to the Chairman of the Joint Chiefs of Staff, Oct. 25, 2002.

"The Air Force has serious concerns regarding the legality of many of the proposed techniques, particularly under Category III. Some of these techniques could be construed as 'torture,' as that crime is defined by 18 U.S.C. 2340.

" . . . Implementation of these techniques could preclude the ability to prosecute the individuals interrogated. Successful prosecutions in military commissions or subsequent use of detainee statements in Federal prosecutions will require that the evidence obtained be admissible.

" . . . The Level III techniques will almost certainly result in any statements being declared as coerced and involuntary, and therefore inadmissible. Such a finding may also exclude any evidence derived from the coerced statement. . . . Additionally, the techniques described may be subject to challenge as failing to meet the requirements outlined in the military order to treat detainees humanely and to provide them with adequate food, water, shelter and medical treatment. Defense counsel will undoubtedly argue that any evidence derived by the prosecution must be excluded because the Government did not abide by its own rules."

_ Col. Donald E. Richburg, USAF, in a memo to the United Nations and Multilateral Affairs Division of the Joint Chiefs of Staff, Nov. 4, 2002

"The suggested Tier III and certain Tier II techniques may subject service members to punitive articles of the UCMJ (Uniform Code of Military Justice).

" . . . any information derived from the aggressive techniques, although admissible, will be of diminished value during any subsequent proceedings. The taint concerning the diminished weight accorded the statements would apply not only to the detainee making the statements, but also against those individuals about whom the detainee has provided incriminating information.

" . . . One detainee subjected to these techniques could taint the voluntary nature of all other confessions and information derived from detainees not subjected o the aggressive techniques."

_ Maj. Sam W. McCahon, Chief Legal Advisor, Department of Defense Criminal Investigation Task Force, in a memo to the commander of the CITF, Nov. 4, 2002

"As set forth in the enclosed memoranda, the Army interposes significant legal, policy and practical concerns regarding most of the Category II and all of the Category III techniques proposed.

" . . . From a policy standpoint, employing many of the suggested techniques would create a PA (public affairs) nightmare. The War on Terror is expected to last many years and ultimate success requires strong domestic and international support. Whatever interrogation techniques we adopt will eventually become public knowledge. If we mistreat detainees, we will quickly lose the morale (cq) high ground and public support will erode."

_ Memo from John Ley to the Office of the Army General Counsel, undated

"Navy staff recommends, however, that more detailed interagency policy review be conducted on proposed techniques. Such policy review should address the possibility, if not the likelihood, that techniques will be inadvertently disclosed through the visits to the detainees in Cuba by the International Red Cross or foreign government delegations, which could lead to international scrutiny. Navy staff also recommends that the classification level of counter-resistance techniques be increased to the Top Secret level."

_ Memo from Capt. D.D. Thompson, USN, special assistant to the Chief of Naval Operations for Joint Chiefs of Staff matters, to the Director for Strategic Plans and Policy Directorate of the Joint Staff.

"I have discussed this with the Deputy (Secretary of Defense Paul D. Wolfowitz), (Under Secretary of Defense for Policy) Doug Feith and (Chairman of the Joint Chiefs of Staff) Gen. (Richard) Myers. I believe that all concur in my recommendation that, as a matter of policy, you authorize the Commander of USSOUTHCOM to employ, at his discretion, only Categories I and II and the fourth technique listed in Category III ('Use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing').

" . . . While all Category III techniques may be legally available, we believe that, as a matter of policy, a blanket approval of Category III techniques is not warranted at this time. Our Armed Forces are trained to a standard of interrogation that reflects a tradition of restraint."

_ Memo to then-secretary of defense Donald H. Rumsfeld from William J. Haynes II, General Counsel of the Department of Defense, Nov. 27, 2002. Rumsfeld, who used a stand-up desk in this Pentagon office, approved the recommendation, but wrote at the bottom:

"However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?"

"LEA (law enforcement agency) does not believe that coercive interrogation techniques are effective. However, on those rare occasions when these techniques have yielded results, the reliability of the information gathered has proven to be highly questionable. Detainees who are coerced into making admissions often develop strong feelings of anger and resentment toward their interrogators. Instead of creating an environment conducive to fostering continued cooperation, the interrogation process ends up fueling hostility and strengthening a detainee's will to resist.

"A recovered Al Qaeda training manual instructs its members to expect Americans to use coercive interrogation tactics, even torture, to elicit information. The manual draws attention to these techniques and characterizes them as further proof of the evil and unjust acts which Americans commit against Muslims. Thus, the use of coercive techniques only serves to reinforce these erroneous perceptions. In essence, we end up proving ourselves worthy of the detainees' righteous resolve and inspiring continued resistance.

"Despite the advice of LEA behavioral experts who have consistently advocated the use of a rapport-based approach, there seems to be a tendency to revert to a shortsighted coercive model of interrogation."

_ Memo from Timothy C. James, Special Agent in Charge, Criminal Investigation Task Force, Guantanamo, to Joint Task Force-Guantanamo, Dec. 17, 2002.

McClatchy Newspapers 2008

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