Unjustifiable Means

by Mark Fallon

  In theory, having Lindh in navy hands should have served our purposes at NCIS—we were, after all, navy-based. But the ongoing high-level debate about who would have access to Lindh and for what purposes meant we were still unable to interview him for days. Intel groups from the United States Marine Corps, the Defense Intelligence Agency, and the FBI joined us in urgently requesting to interview Lindh and the other detainees. The Australians also wanted to talk to Hicks. But we were still stymied by a lack of clear policy or guidance. An American Taliban posed a unique challenge that hidebound bureaucrats simply could not respond to. Regulations were out the window. Precedent didn’t exist. Suddenly, important policy decisions were being made ad hoc at the most senior levels, often by lawyers with no technical expertise. Even if John Walker Lindh was a minor foot soldier, or not even that, he had thrown the counterterrorism mechanism off kilter.

  Equally alarming was the quick reemergence of a kind of “agency tribal” behavior. My USS Cole presentation that had been scheduled for September 11 focused on this phenomenon. The US has seventeen separate intel agencies, many with overlapping responsibilities. Each developed its own culture—the FBI was not the CIA was not the NSA. Even within the armed forces, the NCIS had little in common with the army CID. Cooperation didn’t come easily. I had friends in, and access to, the CIA, but I still had trouble convincing case officers that we weren’t competitors. “Look,” I’d say, “While you guys are working the champagne circuit XX XXX XXXXXXXXX, we’re working the beer and whiskey circuit in the ports.” Not that secrets didn’t sometimes get served along with the hors d’oeuvres at black-tie events, but plenty of good intel came from the ports too.

  I’d also seen military or legal missions undermined when the power or status of a particular tribe—be it an agency, branch of the service, or prosecutor’s office in the legal system—took precedence over larger mission goals. Honestly, it was a big part of what stopped us from connecting the dots before 9/11. Now, three months later, just as we were gearing up for what should be a coordinated effort to interrogate detainees and begin moving them into the military justice system, it was happening again.

  Just as alarming, I was getting hints that what constituted acceptable interrogation practices might be open to question. One friend told me that Richard Shiffrin, the Defense Department lawyer I was working with to get directives on Lindh, had called up the JPRA, the agency responsible for SERE training. This was right at the start of 2002. Mitchell and Jessen’s papers advocating learned helplessness hadn’t yet been published, but like me, Shiffrin had picked up word that the CIA was exploring new “scientific” measures to overcome Al Qaeda resistance to interrogation and that these measures somehow dovetailed with SERE “exploitation tactics.”

  I don’t know if the call to the JPRA was at Shiffrin’s own initiative or if he was directed to call. As far as I know, no one at the JPRA told him the measures entailed torture tactics, not interrogation techniques, but perhaps that should have been obvious.

  • • •

  The first consensus that developed around Lindh was an agreement not to refer to him as a “captive” or “prisoner of war” but rather as an “unlawful belligerent.” The word choice was not just semantic. Prisoners of war have clear judicial rights under the Geneva Conventions and federal law. Unlawful belligerents do not. The different labels created a whole new category of person with practically no existing applicable precedent or legislation to protect them. That allowed government lawyers a lot more latitude in dealing with, for example, the ACLU lawsuit over secret shipboard detention.

  About a week after Lindh and the four others were transferred to the Peleliu, we finally got clarity on the ground rules for interrogation. Our NCIS investigators were going to be allowed to use an interview room in the ship’s rear brig. They were first instructed not to issue Lindh any warnings about his rights. The interview would be purely for intel exploitation. I wasn’t thrilled by the conditions, but at least we were going to be able to talk to a potentially valuable source.

  • • •

  Then the lawyers struck again. On December 27, 2001, Secretary of Defense Donald Rumsfeld announced that prisoners from Afghanistan would be transferred to the naval base at Guantanamo Bay, or GTMO (pronounced Gitmo) in military abbreviation. The next day, Deputy Assistant Attorneys General Patrick Philbin and John Yoo sent a memorandum to William “Jim” Haynes, the general counsel at the Department of Defense that gave a bit more insight into why they were considering Guantanamo.

  Technically the land that naval base sits on still belongs to Cuba; the US is just leasing it in perpetuity. This gave a beachhead for Department of Justice lawyers to argue that Guantanamo isn’t actually in US sovereign territory. The Philbin/Yoo memorandum, titled “Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba,” claimed federal courts had no jurisdiction there and could not review Guantanamo detainee mistreatment or mistaken arrest cases. It also stated that international laws did not apply in the “war on terror.” Detainees held there would exist in a sort of legal twilight, neither prisoner of war captured on a traditional battlefield nor inmate held on American territory.

  Three weeks later, President Bush XXXXXX XXXXXXX XXXXXXXXX XXXX seemed to grow organically from Philbin and Yoo’s memorandum. This one stated that XXXXXXXXX XXXXXXXXX XX XXXXX XX XXXXX XX XXXXXXX XXXXXXX XXXX XXXXXX XXXXXXXXXXX XXXXXXXXXXX XX XXX XXXXX XXXXXX XXXXXXXXXX XXX XXXX XXXX XX XX XXXXXX XXX XXXXXX XXX XXXXXXX XXX XXX XXXXXX X X X XXXXXXXXXX XXXX XXXXXXXX XXXXXXXXXXX

  XXXX XXXXXXXX got my attention, but whatever our ideological stances and convictions, we were still dealing with abstractions, like one of those situational ethics exercises from a few decades earlier. After all, the war against Al Qaeda had barely begun. Journalists weren’t even of one mind on how to spell the group’s name.

  In about the same timeframe, Tom Taylor, the army deputy general counsel, visited NCIS, the air force Office of Special Investigations (OSI), and some of the other agencies at CID headquarters at Fort Belvoir, Virginia. He informed us that, by President Bush’s order of November 13, 2001, the army investigative branch, CID, would have the overall responsibility for war crimes and related offenses against the US by Al Qaeda or the Taliban. That didn’t knock us out of the interrogation game, but it did give NCIS lower priority in getting in to see detainees and fulfilling our mission of moving them toward military trials and obtaining counterintelligence information. I would have been more depressed by the news if there hadn’t been such constant flux all around us, but things were changing at such a high rate of speed that I figured they would change yet again, this time in our favor, and we could reestablish our credentials and employ our expertise at the new landing pad for the most important detainees: Guantanamo Bay, a place that Defense Secretary Donald Rumsfeld had just promised would house “the worst of the worst” prisoners being seized in Afghanistan, Iraq, and elsewhere.

  CHAPTER 4

  * * *

  CARIBBEAN WASTA

  American planes aren’t allowed in Cuban airspace, so flights to Guantanamo always end in a hard right turn. One minute I was passing the island with a gorgeous view of the Caribbean stretching off toward Jamaica; the next all I could see out my window was ocean rushing toward me. The ten-seater C-12 banked steeply, turned 180 degrees, and approached the southwest corner of Cuba from the south.

  We landed on Leeward Point Field. Outside sat a very hot tarmac, and then a mile or so past the airfield, the grass and shrubs began climbing up the Sierra Maestra, the largest mountain range in Cuba. I hopped into a waiting car and drove down to the ferry landing.

  Guantanamo Bay divides the base, although almost everything except the airstrip is on the east side. We drove onto the ferry, and I walked up to the deck for a seat with a view of the tropical base to see what had changed since my last visit there in the 1990s. The breeze was wet and salty. Northward up the bay sat dozens of tiny islands dotting the water until it turned back into Cuban t
erritory.

  The United States has occupied Guantanamo since 1898, following the defeat of the Spanish by American and Cuban revolutionary forces. The US turned the rest of Cuba over to the revolutionaries but demanded that they lease the land around the natural harbor for a naval base. Reluctantly, the Cubans agreed. Guantanamo became forty-five square miles of water and land with its own acronym and shorthand pronunciation. The history of Gitmo has been complicated ever since.

  Following the country’s Communist takeover with Fidel Castro’s victory in 1959, some Cubans fled to Gitmo, seeking asylum and making the base a permanent thorn in the side of the Castro regime. The US and Cuba began planting huge gardens of cacti and land mines to seal their respective borders, creating the second-largest minefield in the world. In the 1960s Castro accused the US of not paying for fresh water that flowed into the camp from Cuban territory. In response, the navy built a huge desalination plant and removed a chunk of the pipe that went into Cuba. And so it has gone ever since—a never-ending tit-for-tat, often petty stuff but sometimes deadly serious, as I was reminded by the navy patrol boat with a large-caliber gun mounted on the front that shot by us as we were about halfway across the bay.

  After about a twenty-minute crossing, the ferry docked on the east side of Guantanamo Bay. A five-minute walk along the water’s edge would take one to Fisherman’s Point, the spot where Christopher Columbus had landed in Cuba more than 500 years earlier. Farther up the hill was a large windowed building. It had been used as the intel collection center in the 1950s. That’s where the NCIS office was. During the Cold War, Guantanamo had been the only US naval base in a Communist country. NCIS agents would run along the shoreline trying to get pictures of the antennae arrays of the Soviet fleet as they sailed by. But in the post-Soviet world of satellite imagery, Gitmo’s intel value had become diminished.

  In the 1990s Gitmo was used as an international no-man’s-land to hold Cuban and Haitian refugees seeking asylum in the United States. The flow of refugees quickly overwhelmed the vetting process. The camps around the base became tent cities surrounded by fences with concertina wire and guard towers. There were riots due to desperate conditions, so Camp X-Ray was established in the far northeast corner of Guantanamo. It was a crude, temporary jail just meant to separate the troublemakers from the rest of the camp.

  The Pentagon created a multi-branch team called Joint Task Force 160 to keep order within those camps. I had been down to Guantanamo in the ’90s as a member of the NCIS Hostage Negotiation Mobile Training Team but hadn’t been back since.

  Guantanamo was beautiful and historic, but Gitmo wasn’t the most high-profile naval base. The people who wanted the action were on bases in places like the Philippines and Bahrain, or naval shipyards and marine bases. The pace at Guantanamo was more like Key West South. It was comfortable, with the only Baskin-Robbins, Subway, and McDonald’s in Cuba. There was also a golf course that looked like a slightly grassier version of the moon—everyone carried around a small piece of AstroTurf to put under their ball. The pace was relatively relaxed and . . . Caribbean. You clocked in, did your job, and then went fishing or diving.

  Now its unique location was bringing Gitmo a new mission. The Pentagon was going to reactivate JTF-160 and Camp X-Ray to deal with a different kind of prisoner. Gitmo is a hard base to get to, especially considering it is on an island just ninety miles from Florida. It is both the oldest overseas US military installation and the only one in a country with which the United States had no diplomatic ties. After more than a century, Cuba still rejects the legitimacy of the base’s existence. But that was the point. Gitmo was a legal no-man’s-land, making it a perfect spot for detaining a new category of prisoner.

  • • •

  Back up at the Navy Yard in DC, I had to admit there was a lot to like about the idea of a special interrogation zone at Gitmo for Rumsfeld’s worst of the worst. Of course, I wasn’t crazy about the FBI and NCIS taking a backseat to the army CID. But experience still counted, and we at NCIS—and the FBI, for that matter—had a ton of it to offer. True, the army would have the final say on things, but I knew for a fact that CID lacked any counterintelligence or counterterrorism expertise, or any meaningful experience in terrorism investigations or operations. We had all that, and I was confident our expertise would be needed in a common cause, and because Guantanamo was a naval base, NCIS already had a presence there, a nice leg up. I got busy developing a plan for us to expand our presence to accommodate the new detainees. We would need more physical space, more agents, and a broader skill set to meet our investigative and counterintelligence responsibilities.

  Finding Al Qaeda operatives was the most critical job. Even though many of the prisoners were originating from a country where Pashto and Dari were the main languages, I needed Arabic speakers—the common language of Al Qaeda’s inner circle—with extensive Middle East interrogation and counterintelligence experience. Fortunately, the USS Cole task force had included numerous pros who fit that bill. I felt Guantanamo detainees might even possess information useful in that investigation.

  As part of the USS Cole investigation, we had developed culturally specific interrogation methods. For example, wasta is an Arabic term without an exact English translation. The meaning ranges from “nepotism” to “clout” to “connections.” For example, if you asked someone how they got tickets to a sold-out show, they might just respond, “Wasta.” Ultimately, it’s a way of getting things done. This kind of Middle Eastern Arab cultural knowledge would also be very important to how we got information from detainees at Gitmo.

  The average interview and interrogation approaches American law enforcement use don’t have this background and insight, a big disadvantage in trying to get a confession or other information from Middle Eastern Arabs. Take the difference between guilt and shame. In the West, and also in parts of the Far East, we live in guilt-based societies. A Western suspect might feel guilty about what he did. Guilt is held inside him; it can begin to eat them up. The best way to relieve this internal guilt is to let it out and admit to the crime. The interrogator’s job is to make this as easy as possible. He might, for example, suggest that extenuating circumstances played a role in the crime as a way of encouraging the subject to relieve his guilt.

  But as we had learned during the USS Cole investigation, this approach doesn’t play so well in Middle East Arab cultures. Their culture is not guilt-, but shame-based. The main motivation of detainees at Gitmo would be to avoid bringing shame on themselves and, by extension, their family, tribe, or terrorist brothers-in-arms. In a shame-based society, an undisclosed crime doesn’t eat away at someone from the inside. In fact, it’s the opposite. As long as the crime is hidden, it will not create shame. Offering a safe place for absolution is not effective. So what approach would work?

  Not guilt, for sure. Not threats, either. Or screaming and shouting, or any of the other standards of movie and TV interrogations. In practice—as opposed to on-screen—those techniques are likely to make a detainee feel shamed and thus more resistant. What worked best with suspects beyond any doubt was a rapport-based approach.

  This often takes an enormous amount of patience and time. Initially, the interrogator may spend hours in a room listening to the suspect talk about, say, his native country. Instead of coming in and firing off direct questions, such as, “Where is bin Laden hiding?” the interrogator tries to find commonalities, based on families, wives, education, etc. Eventually—maybe days or weeks later—the interrogator creates a relationship strong enough that he or she can leverage it for information. This may be a quid pro quo situation. Say the interrogator grants the detainee a wish, such as sending a letter home, or offers him fruit or tea. Using the theory of reciprocity, he can ask for something in return. The suspect may view maintaining his personal relationship with the interrogator as more important than withholding information.

  Basically, this all amounted to shared helpfulness, as opposed to shared helplessness. We wouldn�
��t play tough guy at Gitmo because, quite simply, it doesn’t work. To get things started, I invited three of the top behavioral science specialists in the business—my good friend Mike Gelles, CIA psychologist XXXXX XXXXXXX, and XXXXXX XXXXXXXXX, a psychiatrist—to join my team as we developed a game plan for training our staff at Guantanamo. If it had worked with the Al Qaeda operatives in the USS Cole investigation, it would work there.

  • • •

  While I was working up in DC putting together our team for Gitmo, General Donald Ryder, the commander of the army CID, had called me in for a meeting. He was a critical figure, the top guy at the division in charge of conducting criminal investigations of the Gitmo detainees.

  The following day, I walked into the army CID headquarters and saw its slogan hanging on the wall: DO WHAT HAS TO BE DONE. Hmm, I thought. It’s not exactly “Veritas”—the NCIS motto.

  Inside the general’s conference room, I saw a few people I knew from the FBI and the air force’s OSI. But the presentation itself was by and for the army. It began with a talk about doctrine and went on from there. It was command and control on steroids.

  When I got back to NCIS headquarters, I briefed director Dave Brant and his leadership group. Dave doesn’t look particularly charismatic on first glance—he’s a lanky guy with a brown mustache—but he’s endlessly inquisitive, he never stops searching for different perspectives, and he’s the kind of boss good people just love working under. He also doesn’t have much tolerance for BS, especially when it comes to briefings.