Unjustifiable Means

by Mark Fallon

  The approach phase actually begins when the interrogator first comes in contact with the source and continues until the prisoner begins answering questions pertinent to the objective of the interrogation effort. Interrogators do not “run” an approach by following a set pattern or routine. Each interrogation is different, but all approaches in interrogations have the following purposes in common:

  Establish and maintain control over the source and the interrogation.

  Establish and maintain rapport between the interrogator and the source.

  Manipulate the source’s emotions and weaknesses to gain his willing cooperation.

  CHAPTER 6

  * * *

  BATTLE LAB

  Our success with al-Qahtani only heightened General Dunlavey’s frustration with the lack of information his team was getting out of detainees. He had noticed that our task force had its own Behavioral Science Consultation Team. The idea behind our BSCT—pronounced “biscuit”—was to improve our rapport-based interrogations by having a consulting group of psychologists and other professionals, such as Mike Gelles, XXXXX XXXXXXX, and Joseph Krofcheck.

  Dunlavey decided his JTF-170 team needed that kind of expertise. But instead of asking for help from us, he built up his own team with inexperienced clinicians, which we called pseudo-BSCT. In early June 2002, Dunlavey had three people reassigned to Gitmo to staff his new team, including army clinical psychologist XXXXX XXXX XXXX as well as psychiatrist Major Paul Burney. Neither of the doctors had any training or experience in interrogation. In fact, when they got off the plane at Gitmo, Burney and XXXX were under the impression they were being assigned there to care for US service members dealing with battle-related stress.

  XXXX wasn’t able to smoothly transition to his new job initially. Not long after arriving, the psychologist called up Larry James, his mentor at the Walter Reed National Military Medical Center in Bethesda, Maryland. XXXX said he was extremely uncomfortable in his unfamiliar role. According to James, XXXX sounded distraught and anxious. The pseudo-BSCT he had joined was planning how to introduce terror tactics into al-Qahtani’s world.

  James promised he’d get XXXX some help. He called up his colleague, psychologist Morgan Banks. The two were both concerned over XXXXXX lack of expertise, but James saw a positive side: As James wrote in his book, Fixing Hell, he and Banks had an opportunity “to do the right thing and influence the interrogation process, assuming [they] could get Major XXXX the appropriate training.” Unfortunately, Banks agreed.

  Banks wasn’t just another clinician, but the military psychologist assigned to Fort Bragg, the place where the SERE program was first developed. Banks was working with the Special Operation forces that made up forward-deployed Special Mission Units. His predecessor had been James Mitchell, the psychologist entranced by Martin Seligman’s concept of learned helplessness who, with Bruce Jessen, was one of the fathers of the CIA’s enhanced interrogation techniques. Banks was a lower profile than Mitchell, but he was also an advocate for adopting the SERE techniques to interrogations.

  There was one important distinction between them. Mitchell was a private contractor to the CIA—he had no contracts to provide interrogation theory or training to anyone in the defense department. Banks, though, was a well-positioned army officer promoting SERE techniques within the military. However, like Mitchell and Jessen, Banks had no expertise in lawful interrogations. He arranged for XXXX and Burney to fly up to Fort Bragg to get their first training in SERE interrogation techniques. Because SERE was initially developed to help service members develop a resistance to the brutal treatment they could expect from foreign governments, the education XXXX and Burney received included harsh and illegal intel exploitation techniques. In fact, within the SERE community, “exploitation techniques” was the code phrase for torture.

  On June 9, 2002, about a week after XXXX and Burney’s arrival, I was on a plane down to Gitmo with my colleagues Ralph Blincoe and Mike Gelles. We were making the trip to try and squelch the growing enthusiasm for SERE-based interrogation. Since XXXX had arrived, CITF had been trying to nudge him in the opposite direction as Larry James, Morgan Banks, and Dunlavey. We wanted to make sure he knew about the proven rapport-building interrogation CITF used. But XXXX was still heading down the path favored by Dunlavey. With Morgan Banks’s assistance, XXXX and Burney were planning to begin “psychological exploitation” of al-Qahtani. And they were doing so with techniques that looked suspiciously like Mitchell and Jessen’s EITs. In a sense, they were serving a similar role as Mitchell and Jessen, but instead of providing medical cover for torture in the CIA, they were doing so in the DOD. The programs they were developing also owed a debt to Martin Seligman’s concept of learned helplessness. Of course, Seligman had observed learned helplessness in dogs that had received a constant battery of electric shocks. XXXX and Burney were designing treatment for human beings.

  Once we landed at Guantanamo and got across the bay, Blincoe and I went up the hill to JTF-170’s headquarters to talk with Dunlavey. The trip was a waste; the general gave us the usual runaround. Back down at CITF’s office, I saw Mike Gelles walk in, hyperventilating. “I can’t believe these psychologists are getting directly involved in interrogations. They’re actually advocating for using SERE and that learned helplessness shit,” he fumed. He gripped the back of a chair. “They have no fucking experience! I almost feel sorry for them. They’re gonna lose their licenses.”

  Gelles had more experience than anyone on the pseudo-BSCT. But like all our operational psychologists, he never participated in interrogations. Gelles explained his job as similar to an NFL offensive or defensive coordinator. He sat anonymously and high up in the box seats, observing plays from above, viewing activities through a different lens and giving those on the field a different perspective than they might see in the thick of the action. Medical professionals on the pseudo-BSCT were planning on being involved at all levels of the interrogation process.

  I was personally pissed at Banks for the whole mess. When Mike and I had first heard Dunlavey was considering using SERE tactics for interrogation, we’d gotten in touch with Banks, who had advised us that the techniques were not appropriate. As interest in using SERE-based interrogation grew at Gitmo, I had used Banks’s expert opinion to make the arguments that personnel involved in SERE training were not interrogators. Even in the controlled conditions at Fort Bragg, where both detainees and interrogators were American military personnel, abuses occurred. Much more serious abuses at Gitmo seemed an almost foregone conclusion. But now Banks had flipped his script. He was using his psychological expertise to train Gitmo personnel in breaking down detainees.

  • • •

  Whatever tactics JTF-170 was developing, they still had to wait to get their hands on al-Qahtani, and believe me, everyone wanted a piece. Given that we were the ones who had identified al-Qahtani as a potentially high-value target for both intel and prosecution—an actual worst of the worst—I was able to convince the Pentagon to let CITF arrange a pecking order, and we put the FBI at the top of it, mostly because I was familiar with XXX XXXXXX from the USS Cole investigation and thought he was the best possible person to take on al-Qahtani.

  XXX had an amazing knack for developing rapport with subjects. He would sit on the floor with them and discuss politics or religion in his fluent Arabic. In the spring of 2002, XXX had used his rapport-based techniques while interrogating a high-profile detainee XX XXXXXXXX named Abu Zubaydah. During this time, Zubaydah gave up several important pieces of intel, including naming Khalid Sheikh Mohammed as the 9/11 mastermind and disclosing information about dirty bomber Jose Padilla.

  In July 2002, XXX and other FBI agents arrived at Gitmo, hoping to match their progress XX XXXXXXXX, and initially, they made some moderate progress in interrogating al-Qahtani—intel as well as evidence—but eventually they hit a roadblock. Al-Qahtani shut down and stopped talking. XXX was sent home while the other FBI investigators continued the interrogation.

>   This was the moment Dunlavey was waiting for. “Law enforcement had their chance,” he said. “They failed. Now we need to get serious.”

  Dunlavey realized al-Qahtani was potentially much more valuable than what he called the “Mickey Mouse prisoners” at Gitmo. Getting intel out of al-Qahtani would be a huge boost to his career. Dunlavey’s interrogators were claiming that Manchester Document resistance techniques were stopping them from being successful. The general was also convinced that the solution to his intel exploitation problems was harsher measures. He believed getting tougher was the best way to get intel on Al Qaeda in Iraq, prevent attacks, and save battlefield lives. Dunlavey proposed to have al-Qahtani “sent off island” to either Jordan, Egypt, or another third country. Basically, he wanted to do a CIA-style rendering of al-Qahtani to see what could be tortured out of him. XXXX XXXXXX XXXX XX XXXXX XXXXXXXX XXXXXXXX XXX XXXX XXXXX XX XXX XXX XXXX XX XXXXXXXXX XX XXXXXXXXXXXXX XXXXXXXXXX XXXX XXX XXXXXXXXXX XXXXXXX XXXXXXX XXX XXX XXXX XXXX XXXX XXXXXXXX XXX XXXX XX XXX XXXXXX XXXXXXX XXXXXXXX XXXX XX XX XXXXXXX XXXXX XXXXX XXXXXXXXX X XXXXXXX XXX XXXXX XXX XXXXX XX XXXXXXX XXX XXXXX.

  Then I got a call from Bill Lietzau, a high-ranking marine corps judge advocate assigned to the DOD office of general counsel working on detainee matters and the military commissions process.

  “Mark, did the FBI ever run a rendition plan by you?” he asked.

  “What?” I said. “Rendition for who?”

  “They wanted to have al-Qahtani sent to Jordan for interrogation by local authorities.” I closed my eyes.

  What is happening? I thought. The FBI was on our side fighting JTF-170 when they wanted to torture al-Qahtani. Now they want to do an end run around me? The premiere law enforcement agency in the United States is actually going to send a prisoner to be tortured?

  Once Lietzau got wind of the plan, he referred the FBI back to us. Lietzau knew it stank and that we wouldn’t approve it. The FBI also knew we wouldn’t approve it. To short-circuit Lietzau’s resistance, the FBI took their case higher up the command chain to the office of Special Operations and Low Intensity Conflict (SOLIC), which oversees all special operations within the Pentagon. They found a receptive ear in Marshall Billingslea, the head of SOLIC. To counter their efforts, we brought in our own big gun, Major General Thomas Romig, the army’s top lawyer. But Billingslea didn’t slow down when Romig protested the interrogation procedures.

  “Guys,” he said. “It’s time to wake up and smell the coffee. It’s time to take the gloves off.”

  When Britt Mallow, the CEO of CITF, explained that SERE aren’t interrogation techniques and simply don’t work, Billingslea quickly replied: “You don’t know what you’re taking about.”

  Despite the support their idea got in the upper echelons of the military, the FBI never got to render al-Qahtani. In fact, it’s not clear exactly where the idea originated. It’s possible it began and ended with the FBI Guantanamo unit chief, but the FBI has kept those details a closely guarded secret. One thing was clear to me now: torturing detainees for intel was looked on favorably by some of the top brass in DOD and, at some levels, even within the FBI.

  • • •

  While I was pushing back on the aggressive interrogation of al-Qahtani at Gitmo, another event far above my pay grade in DC had already changed the playing field. On August 1, 2002, President Bush’s lawyer, Alberto Gonzales, received a fifty-page memo from Assistant Attorney General John Yoo titled “Standards of Conduct for Interrogation under 18 U.S.C.”

  The first paragraph began to answer the question of what constitutes torture, specifically in terms of conduct outside the United States. Acts that were intended to “inflict severe pain or suffering” were illegal, claimed the legal team, before adding that they must be of an “extreme nature” to qualify as torture. If that didn’t leave the door open wide enough, the next sentence declared that “certain acts may be cruel, inhuman and degrading” but not actually be considered torture.

  The arguments continued in that vein until the last three pages of the memo, an appendix of activity that had been found to actually meet the definition of torture. This list included a man who was pistol-whipped into submission, given only a robe to wear, held for more than five years, forced to play Russian roulette, beaten, chained outside in winter, left in a rodent- and scorpion-infested cell, randomly beaten, and subjected to some unexplained surgical procedure. Other cases included a nun who was blindfolded, burned with cigarettes, and raped, and a man who was doused in gasoline and burned to death. This was indicative of the low bar the memo set for acceptable behavior. The opinion in the memo was passed to top lawyers at the CIA and Pentagon.

  Because I didn’t know about the August memo at the time, I just thought the enthusiasm some people at the Pentagon had for torture tactics was the result of being poorly informed. I figured they were acting stupidly because they didn’t have the facts. Once the right professionals at CITF or NCIS, or even the FBI, educated people like Billingslea on what actually worked with detainees, things would settle down. I didn’t know I was fighting against the White House.

  Although explicit knowledge of the August memo was very exclusive, the result of the legal opinion echoed around the world. XX XXXXXXXX, the CIA took suspected Al Qaeda member Abu Zubaydah from the FBI interrogators and began so-called enhanced interrogation techniques on him. This kind of activity is hard to compartmentalize. Once torture is accepted in limited doses, it begins to spread like a virus.

  • • •

  By August 2002, JTF-170’s intelligence collection was being looked at as a failure, and its shortcomings became the subject of an army investigation. JTF-170 was certainly a shambles, but the way the army went about fixing it was strange, if not suspicious. Army colonel John P. Custer was asked to lead the review. Colonel Custer was reputedly directly related to the more infamous General Custer. What was certain is that the colonel was the assistant commandant of Fort Huachuca, the place where JTF-170 interrogators were trained in field manual techniques. Why was the army sending Custer to evaluate what was essentially his own program? It was sort of like asking the fox to rebuild the chicken coup.

  If you looked at the whole process a little cynically, however, it became less surprising when Custer agreed with Dunlavey’s assessments. The colonel recommended that Dunlavey’s pseudo-BSCT’s methods could create the conditions that would be “conducive to extracting information by exploiting detainees’ vulnerabilities.” Given what I know now, it seems entirely possible that Custer was selected to “review” the program with the ultimate goal of amping up interrogation practices from the beginning. It certainly wouldn’t be the first army investigation with a predetermined conclusion.

  But Custer went one step further. Though JTF-160 had a more limited operation than it had when Gitmo had reopened in February, the group still operated independently, which undoubtedly drove the control-obsessed Dunlavey even more bonkers. What’s worse, in Dunlavey’s view, JTF-160 actually treated the detainees decently. President Bush had said that, though the Geneva Conventions didn’t apply to them, those detained would be treated at conditions comparable to the Geneva Conventions. The marine general in charge, Michael Lehnert, had followed that order, as had his replacement, army general Rick Baccus. It wasn’t a summer camp, but detainees had access to books, including Korans, and food that was appropriate for Muslims, including separate containers for meat and vegetables. Custer’s second proposal gave Dunlavey another gift. He proposed merging JTF-160 and JTF-170 into JTF-GTMO, a new structure that gave one general total control over the operation.

  Custer’s last flourish became the best-known. In the report he filed on September 10, 2002, Custer called Guantanamo Bay “America’s Battle Lab.” The next day, CITF’s Britt Mallow met with Rumsfeld’s counsel, Jim Haynes, to complain. Calling a prison and interrogation center a “lab” evoked unpleasant images of Nuremburg. It would further encourage the psychologists and psychiatrists on the pseudo-BSCT to experiment
on detainees with untested techniques. Not only was that sort of behavior illegal, it was totally unscientific. Trying to determine whether something is effective on a live detainee when you’re trying to exploit their intelligence is not how behavioral research works. CITF opposed the description of Gitmo as America’s Battle Lab, or the contention that it was a place to experiment with detainees. It was duly noted and ignored. The army loved the phrase.

  • • •

  Two weeks later, Dunlavey followed up Custer’s supportive report with a power grab. On September 23, 2002, XXXXXXX XXXXXX, the CITF supervising agent at Gitmo, called me. “Mark, they’re stealing our interrogation. Dunlavey is taking al-Qahtani before we get a chance.”

  Once the FBI was done with al-Qahtani, we were supposed to get the second pass, before JTF-170. But Dunlavey was a man enraged. He’d come into Gitmo thinking his success there would secure his legacy in the new war against terror. By this point, he’d found out he was being relieved of command early instead. He’d had very little success in intel collection, and reports of his strange behavior had been elevated up the chains of command. He was convinced his lack of success had something to do with the reputed Manchester Document training Al Qaeda operatives received. He needed to figure out a way to crush their resistance.

  At the same time as Dunlavey was struggling, the CIA was claiming they were having enormous success with their enhanced interrogation techniques. The Agency was boasting about finding links between Al Qaeda and Iraq as well as intelligence that was used to disrupt attacks on the US. My sources were telling me the CIA wasn’t having nearly the success they claimed. In fact, it turned out their intel on a stream of imminent attacks on the US was mostly successful at stressing out Americans and wasting law enforcement resources. But Dunlavey bought the CIA’s claims hook, line, and sinker. The general wanted his third star—and he wasn’t going to get it without an intel coup. He knew the CIA was using much tougher tactics during their interrogations. Turning up the pressure on al-Qahtani seemed like his best bet.