by Mark Fallon
Even more important, teaching “helplessness” through electric shocks or sleep deprivation or beating people with sticks or however else the Nazis and North Koreans might have done it simply wasn’t legal. The Geneva Conventions and the Eighth Amendment to the US Constitution forbid cruel and unusual punishment.
That’s got to be firewall enough, I told myself.
* * *
I. To quote from Biderman’s article, “Communist Methods”:
The kind of “confession” we are discussing consists of considerably more than the signing of a piece of paper, which says: “On such and such a date I committed such and such a crime—signed John Jones.” It consists of considerably more than making an equivalent oral statement in a court. These “confession”-extortion efforts involved the attempt to manipulate the individual so that he behaves over an extended period as if:
he actually committed certain concrete acts which he can “describe” with meticulous detail;
these acts were “criminal,” in the sense of being violations of the most fundamental standards of human decency;
these acts were not isolated transgressions but manifestation of a “criminal” pattern in his thought and action;
his “crimes” were part and parcel of a larger nefarious political conspiracy;
his “criminal” role was motivated by a self-seeking alignment with this political conspiracy, of which he was only a pawn;
he is now remorseful and repentant;
his changed attitude is due to new-found political conviction for which he is indebted to his patient captors.
In this extreme form of “confession”-elicitation, as encountered by our men, the objective was not merely having the prisoner “confirm” that certain acts were committed, but rather to have his behavior confirm the entire world-view of the Communists relevant to those acts. (From the Bulletin of the New York Academy of Medicine, Vol. 33, No. 9, September 1957.)
II. An independent review headed by David H. Hoffman wrote in the Report to the Special Committee of the Board of Directors of the AMA: “At the close of the meeting, the group had made ‘six policy recommendations aimed at winning a victory that will lastingly contain global terrorism’: Isolate Jihad Islam from Moderate Islam worldwide; [n]eutralize Saudi support for jihad Islamic fundamentalism worldwide; [p]olice the Arab Diaspora in Western Europe forcefully; [s]ubvert the social structure of terrorist organizations; [b]reak the link between the terrorists and the pyramid of sympathizers; [and] [b]uild American knowledge of Arab and Muslim culture and language.”
CHAPTER 3
* * *
A PLAGUE OF LAWYERS
It’s too simple to say the actual war on terror was waged by brave men and women risking everything while the war against terrorists was fought by psychologists and lawyers. But simple is not always wrong. Even before Marty Seligman’s comments at Wynnewood inspired at least several of his fellow psychologists to dream big torture dreams, some of the government’s top attorneys were hard at work assuring the war footing Dick Cheney sought and the intelligence-gathering tools Jim Mitchell, Bruce Jessen, and others would soon propose as most effective would meet as little legal resistance as possible.
In the last three months of 2001, everything seemed to be happening at once. The nation was recovering from a horrible shock. Bodies were still being removed from the rubble of the World Trade Center towers. Every news cycle added fresh details to our understanding of the hijackers, and Osama bin Laden and Al Qaeda behind them. US Special Forces were already operational in Afghanistan. The Bush administration was talking darkly of biological weapons and weapons of mass destruction—WMDs as they became known—stockpiled in Iraq.
Yet for all the fervor that so colored events in the aftermath of 9/11, the series of legal decisions that would ultimately be used to justify torture unfolded more like an avalanche seen in extra-slow motion: a boulder comes loose at the top of the mountain and begins rolling downhill, leisurely picking up more rocks and stones and boulders as it goes along until the whole mass—which in slow motion looked so much like a geological ballet when it began—suddenly ends up crashing into the valley below in a deafening roar. That’s where I was standing, in the valley at the bottom of the mountain, when the onslaught arrived. But that gets ahead of the story.
On September 18, 2001, exactly one week after the carnage in lower Manhattan, the Pentagon, and near Shanksville, Pennsylvania, President Bush signed Senate Joint Resolution 23, “Authorization for Use of Military Force.” The resolution, Bush said in his signing statement, “recognizes the seriousness of the terrorist threat to our nation and the authority of the president under the constitution to take action to deter and prevent acts of terrorism against the United States. . . . Our whole nation is unalterably committed to a direct, forceful, and comprehensive response to these terrorist attacks and the scourge of terrorism directed against the United States and its interests.”
All that’s a matter of public record. As yet, though, there has been no release of the “Memorandum of Notification” the president signed a day earlier, authorizing the Central Intelligence Agency to captureX XXXXX XXX interrogate Al Qaeda leaders. While the gist of the memorandum is public and portions have been released, the memorandum remains so secret that even the font it was typed in is still classified. The document became known as the Gloves Come Off memo. At roughly the same time, Bush signed off XX X XXX XXXXXXXXXXX XXXXXX XXXXX XXXXXXX XX XXXXXXX XXXXX XXX XXXXX XXXXXX XXX XXXX XXXXXXXX XX XXXXXX XXXXXX XXX XXXX XX XXX XXXXXXXXX XXXXXXXX
None of that threatened the rule of law, but it cracked the door slightly, and a few weeks later, Roger Ailes, then the head of Fox News, gave it a further push. According to Bob Woodward’s Bush at War, Ailes used Karl Rove as the go-between for a memo that implored the president to use “the harshest measures possible” in dealing with the terrorism network behind the September attacks. Otherwise, Ailes cautioned, the public would quickly lose patience with his administration.
Whatever the influence Ailes’s memo might have had on the president’s subsequent decision making—and Woodward thinks it was significant—on November 13, 2001, Bush signed a military order titled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.”
Three items in particular near the end of the presidential “findings” began to define the new world I would soon be operating in: One, individuals “subject to the order” henceforth “were to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.” Two, given the situation, it was “not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” And three, given the probability of further terrorist attacks on the homeland, “an extraordinary emergency exists for national defense purposes.”
In section 2 of the memorandum, “Definition and Policy,” Bush and his lawyers further clarified who would be subject to this order: “any individual who is not a United States citizen” and whom the president has “reason to believe” might be a member of Al Qaeda and/or “has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, threatened to cause, or have as their aim to cause injury to or averse effects on the United States, its citizens, national security, foreign policy, or economy; or has knowingly harbored one or more individuals” who have done any of the preceding.
Not only were rules of evidence being dispensed with in this “extraordinary emergency,” the detention gates—and military tribunals—were being thrown wide open to anyone the president had “reason to believe” was a terrorist, threatened to do harm to America or Americans, or gave aid and comfort to same. That, I told myself, was potentially a very large gene pool. Given the sweeping vagueness of the “definition,” it also could end up being just about any size the president and his people wanted it to be.
• • •
One other thing the November memorandum did: it effectively took the 9/11 investigation out of the hands of the FBI—the agency legally responsible for federal crimes, including terrorism—and placed it instead with DOD, the Department of Defense.
Was that a big surprise to me? Not really. Washington is a constant power-grab, especially in times of crisis. Donald Rumsfeld, then the defense secretary, had been playing that game for a long time, going back to the Nixon administration, while Bob Mueller had taken over at the FBI just seven days before 9/11. With power-grabbing, practice makes perfect. But I can’t say I was happy with the change. The FBI has some of the best counterterrorism people I’ve ever worked with, and the USS Cole investigation had given me a front seat on maybe the finest counterterrorism investigation and interrogations I’ve ever been involved in.
One of the subjects in that interrogation was a Yemeni, Jamal Badawi, suspected of helping run the logistics cell for the Cole attack. The interrogators were NCIS special agent Ken Reuwer and FBI agent XXX XXXXXX, an Arabic speaker who had grown up in the Middle East. Ken didn’t speak Arabic, so XXX did most of the talking during the interrogation, but Ken would hear what the translator said and pass XXX notes. It was all respectful, all in keeping with prosecutorial requirements—Badawi was even read his Miranda rights. There was no strong-arming, no threats, nothing that might have come anywhere near appearing on Albert Biderman’s torture chart or in one of Marty Seligman’s introductory lectures on learned helplessness. Yet in the end Jamal Badawi rolled on everybody—an intelligence-collection bonanza. He not only admitted to his own role in the USS Cole attack cell; he also identified other Al Qaeda members and safe houses. Badawi even implicated Fahd al-Quso, who later emerged as the second-in-command of Al Qaeda in the Arabian Peninsula. As was the case with Badawi, XXXXXX and NCIS special agent Robert McFadden skillfully interrogated al-Quso. The results were the same: actionable intelligence and untainted evidence.
With the FBI down a rank or two in the pecking order, it was going to be harder to bring people like XXX XXXXXX in on the action. But we had gone to school on all this at NCIS, and our duty was fundamentally unchanged by the decrees issued to date. We were a military resource. This was now a military command-and-control issue, with DOD at the top. George Bush had written in his November memorandum that he would base his prosecutorial decisions on “reasons to believe.” Our job was to produce those reasons to believe for the president, with an eye to military tribunals, and all our efforts would be pointed in that direction. Then, just when our work was becoming clearer, something totally unexpected happened.
• • •
I was thrust into the middle of this emerging legal battlefield at 5:45 in the morning by the secure telephone at my home. It was Sunday, December 9, 2001. When that phone rings in the early morning or on weekends, it is never a good sign. This was no exception.
“Hello?”
“Mark? It’s Jimmy. Sorry to get you out of bed on a Sunday, but there’s been a development in Afghanistan.” Jim MacFarlane was the number two at NCIS’s Middle East Field Office.
“No problem. What’s up, Jimmy?” I asked.
“The Northern Alliance found an American with a bunch of other Taliban POWs. He’s gonna be taken to either Camp Rhino or the USS Bataan.”
“Really?” I said. My mind was racing. An American fighting with the Taliban? What was he thinking? None of our planning included that possibility. This was going to change everything. “What’s his name?”
“John Walker Lindh,” said Jim. “Apparently he was fingered by one of the other prisoners as an English speaker. He initially told the CIA he was Irish.”
“Well, that didn’t work.” I reached for the legal codebooks I kept next to the phone.
There were two laws regarding aiding the enemy: Article 104 of the UCMJ (Uniformed Code of Military Justice) and 10USC904 of the US Criminal Code. They both basically agreed. Under UCMJ, if Lindh had aided the Taliban or Al Qaeda with materials or passed them information, he was subject to court-martial. If guilty, he could be sentenced to a number of penalties, including execution. But whether Lindh ended up in a military or civilian court, he had the same basic rights. He got to see a lawyer and he didn’t have to talk. Also, we couldn’t just hold Lindh at Camp Rhino, in the far south of Afghanistan, indefinitely. That might work with Afghan detainees, but this guy was a bona fide American, whatever he had done. At some point down the road—and not too far—we would probably have to find a way to move him onto American soil. Where that might be was anyone’s guess.
“Listen,” I told Jimmy. “It doesn’t matter whether this ends up being a criminal investigation or counterintelligence matter. We need to get agents there to talk to this guy.”
“Agreed. We’re on it,” said Jimmy.
We planned to talk again soon. I walked over to my home office and closed the door quietly so as not to wake my wife.
I worked most of the day, only taking a break to eat and watch my Giants lose an ugly game at Dallas. I headed into the NCIS’s Anti-Terrorist Alert Center (now the Multiple Threat Alert Center) at about 3:30 Monday morning. Lindh’s capture had the place abuzz. Netting a young, white US citizen, born in Washington, DC, added a scary new dimension for a nation already on edge. Ever since 9/11, we’d ramped up additional screening at ports of entry into the United States, but Lindh didn’t come anywhere near fitting the stereotypical profile of an Islamic terrorist.
Even if he was just a foot soldier for the Taliban or low-level Al Qaeda, Lindh’s existence prompted critical questions: How was an upper-middle-class kid from suburban California recruited into militant Islam? What training had he received? What was his mission? How many other Westerners were there? Were there sleeper cells in the United States? We wanted to know who, what, when, where, how, and why. Of course, we weren’t alone.
I called up Klain Garriga, the head of NCIS’s office in the Middle East. Klain was a Vietnam vet who had come out of the war with a Silver Star and shrapnel still lodged in his body. I had met him decades ago at NCIS basic training, and we worked together on the streets in the Philippines.
Klain didn’t waste time. “I’ve got a C-130 ready to leave within an hour,” he said. The four-person team included an Arabic speaker, an interrogator, an operational psychologist, and a Judge Advocate General’s Corps (JAGC) lawyer—all ready to fly to Camp Rhino and talk to Lindh.
“Does the JAGC think Lindh is subject to UCMJ [Uniform Code of Military Justice]?” I asked.
“Yeah, that’s what he’s telling me,” said Klain.
“Yeah, that’s what I read too.”
The ongoing USS Cole investigation had given NCIS the most experience in the military with investigating Islamic terrorist networks. We were ready to go and find out what Lindh could tell us. If only it was that simple. Later that day I got word from another JAGC lawyer that we were not to interrogate Lindh: “Stand by for twenty-four hours.” Hurry up and wait.
Lindh was a popular guy. When I talked with FBI headquarters, it was clear the Bureau was sore that the marines had custody of Lindh. I understood their position. The army also wanted its criminal investigation division to hold on to Lindh as a prisoner of war so that US Army Criminal Investigation Command (CID) could interrogate him. Problem was, while CID agents were good at processing crime scenes and routine criminal investigations on army posts, they lacked any counterintelligence training or experience. The uniqueness of these circumstances was simply beyond CID’s capabilities.
Meanwhile the Department of Defense was talking to the Department of Justice, also trying to figure out who got first dibs on Lindh. Everyone was lining up to interview him at Camp Rhino, ourselves included. Over the rest of the week, I worked the phones but couldn’t get clarity on just about anything. Richard Shiffrin, a top Department of Defense attorney for intelligence matters, was advising on Lindh for the Pentagon, and had been helpful at first, but the ground kept shifting bene
ath all of us. On Tuesday, for example, Shiffrin advised me that NCIS should conduct interviews in theater, probably Afghanistan. The next day, though, we were stood down; the army had refused to let us in. Meanwhile, more enemy prisoners of war were piling up at Camp Rhino, including another Westerner, a blond-haired Australian named David Hicks.
To cover all my bases, I was requesting a 31B form for interrogations—the military version of Miranda rights, such as remaining silent and having access to a lawyer. Even though I was a civilian, I was working for the military and had to go through its legal channels. But I still didn’t know whether a rights waiver was required for our NCIS guys when we finally got to interview Lindh. The JAGC and US attorneys said yes. My contact at the Department of Defense, Shiffrin, had shifted his focus from criminal investigation to purely intelligence exploitation.
Then the Pentagon began parsing words about Lindh’s interrogation being an intelligence interview versus a criminal interview. Instead of one interview to serve both ends, they started talking about separate interviews to avoid tainting any of the information that we might end up using on the criminal side. Translation: the tactics used during the intel interview would be harsher than what is allowed during a criminal interview.
• • •
Then, before any of our investigators got to Lindh, he was gone. On December 14, under the cover of darkness, Lindh, Hicks, and three other detainees were hustled on board a navy helicopter and flown to the USS Peleliu in the north Arabian Sea. There, the ship’s masters-at-arms assumed custody of Lindh. The American Taliban, as he became known, was in navy hands now.
The transfer didn’t stay a secret long. Four days later, a headline in the Washington Post read 5 DETAINEES HELD ON US SHIP. The article gave the details of the fly-by-night transfer. The American Civil Liberties Union quickly filed a suit challenging both the constitutionality and necessity of a military commission process, as opposed to charging the prisoners in a criminal court. The media exposure of a secret shipboard detention program was not what anyone wanted. Agencies were ducking responsibility left and right.