By Joby Warrick | A senior CIA lawyer advised Pentagon officials about the use of harsh interrogation techniques on detainees at Guantanamo Bay in a meeting in late 2002, defending waterboarding and other methods as permissible despite U.S. and international laws banning torture, according to documents released yesterday by congressional investigators.
Torture “is basically subject to perception,” CIA counterterrorism lawyer Jonathan Fredman told a group of military and intelligence officials gathered at the U.S.-run detention camp in Cuba on Oct. 2, 2002, according to minutes of the meeting. “If the detainee dies, you’re doing it wrong.”
The document, one of two dozen released by a Senate panel investigating how Pentagon officials developed the controversial interrogation program introduced at Guantanamo Bay in late 2002, suggests a larger CIA role in advising Defense Department interrogators than was previously known. By the time of the meeting, the CIA already had used waterboarding, which simulates drowning, on at least one terrorism suspect and was holding high-level al-Qaeda detainees in secret prisons overseas — actions that Bush administration lawyers had approved.
The new evidence, along with hours of questioning of former Pentagon officials at a hearing of the Senate Armed Services Committee yesterday, shed light on efforts by top aides to then-Defense Secretary Donald H. Rumsfeld to research and reverse-engineer techniques used by military survival schools to prepare U.S. service members for possible capture by hostile forces. The techniques — sensory deprivation, forced nudity, stress positions and exploitation of phobias, such as fear of dogs — would eventually be approved for use at Guantanamo Bay and would spread to U.S. detention facilities in Afghanistan and Iraq, including the Abu Ghraib prison. Nearly all were later rescinded.
The newly released documents show that in the summer of 2002, Pentagon officials compiled lists of aggressive techniques, soliciting opinions from the CIA and others, and ultimately implementing the practices over opposition from military lawyers who argued that the proposed tactics were probably illegal and could harm U.S. troops.
The memos and other evidence evoked intense bipartisan condemnation from members of the Armed Services Committee who spent nearly eight hours grilling some of the former and current officials involved with the decisions.
“The guidance that was provided during this period of time, I think, will go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation’s military and intelligence communities,” said Sen. Lindsey O. Graham (R-S.C.).
Sen. Carl M. Levin (D-Mich.), the committee chairman, asked: “How on Earth did we get to the point where a United States government lawyer would say that . . . torture is subject to perception?”
One of the most explosive memos was the account of the October 2002 Guantanamo Bay meeting in which the CIA’s Fredman joined 10 Defense Department officials and lawyers to discuss how to extract better intelligence from detainees there. Fredman, whose agency had been granted broad latitude by Justice Department lawyers to conduct harsh interrogations of suspected terrorists, listed key considerations for setting a similar program at the Cuban prison. He discussed the pros and cons of videotaping, talked about how to avoid interference by the International Committee of the Red Cross and offered a strong defense of waterboarding.
“If a well-trained individual is used to perform this technique, it can feel like you’re drowning,” he said, according to the meeting’s minutes, which do not provide a verbatim transcript.
Fredman said medical experts should monitor detainees. “If someone dies while aggressive techniques are being used, regardless of the cause of death, the backlash of attention would be severely detrimental,” he was quoted as saying.
CIA spokesman George Little declined to comment on the remarks attributed to Fredman. “The far more important point is the fact that CIA’s terrorist interrogation program has operated on the basis of measured, detailed legal guidance from the Department of Justice,” he said. “The agency program, which has been carefully reviewed within our government, has disrupted terrorist plots and saved innocent lives.”
White House spokesman Tony Fratto said the administration’s consistent policy has been to treat detainees humanely and within the law. “Abuse of detainees has never been, is not, and will never be the policy of this government,” he said at a news briefing yesterday.
But some of Fredman’s advice was apparently persuasive for top Pentagon officials, who in the following weeks approved the first formal program for harsh interrogations at the facility in Cuba. While the outlines of the Guantanamo Bay program are widely known, the new documents suggest a common interest by the CIA and Pentagon in the use of tactics from a program known as Survival, Evasion, Resistance and Escape. In testimony, officials involved in SERE training acknowledged being asked to write memos for senior Pentagon officials about which techniques had the greatest psychological effect.
Among those questioned yesterday about decisions was William J. “Jim” Haynes II, a former Defense Department general counsel who acknowledged pressing for more aggressive techniques but said the decisions were driven by the administration’s fear of more terrorist strikes.
“What I remember about the summer of 2002 was a government-wide concern about the possibility of another terrorist attack as the anniversary of September 11” approached, Haynes said. He also cited “widespread frustration” among Pentagon officials that summer about the slow progress on obtaining information from Guantanamo Bay detainees.
But Haynes and other Pentagon officials acknowledged that the proposed methods faced opposition at the time from experts in military and international law. Among them was Mark Fallon, deputy commander of the Defense Department’s Criminal Investigation Task Force. He warned in an October 2002 e-mail to Pentagon colleagues that the techniques under discussion would “shock the conscience of any legal body” that might review how the interrogations were conducted.
“This looks like the kind of stuff Congressional hearings are made of,” Fallon wrote. He added: “Someone needs to be considering how history will look back at this.”