by Mark Fallon
Dunlavey developed a plan that apparently involved grabbing al-Qahtani out of his cell, hooding him, and then driving around Guantanamo Bay to disorient him, stripping him to his underwear, and using an interrogator pretending to be an Egyptian. Detainees were well aware of the brutality of Egyptian interrogations.
I was already planning on flying down to Gitmo the next day, September 24, 2002. A delegation of senior government lawyers would be visiting on September 25. I wanted to make sure they got the real story about interrogation before Dunlavey’s plans for al-Qahtani were approved.
CHAPTER 7
* * *
THE TORTURE ARCHITECTS
On September 24, 2002, I was on the early morning UC-35 Citation jet to Guantanamo. A group of distinguished visitors—DVs in military speak—was arriving the next day. These were some of the most important lawyers in the Global War on Terror, including Bush’s lawyer, Alberto Gonzales; Vice President Dick Cheney’s lawyer, David Addington; acting CIA general counsel John Rizzo; and Deputy Attorney General Michael Chertoff.
The trip was intended to give the group an update on the progress of the military commission cases. But this made no sense; CITF was the agency that was running the military commissions investigations. And CITF’s executive headquarters wasn’t in Guantanamo but Fort Belvoir. Instead of driving twenty minutes south from the Pentagon to get an update, they were flying to Cuba?
“Something stinks,” I said to Mike Gelles. “And it’s not on my shoes.”
While I hadn’t known the details of their trip at the time, it seemed obvious this all-star legal team was flying down to Gitmo to meet with Dunlavey. In counterintelligence, I learned to develop indications and warnings about when an attack might occur. Because you never have all the facts, counterintelligence officials learn to look at the whole field of circumstances and pinpoint anomalies. In this case, the most senior lawyers in the new war on terror were coming to Gitmo right in the middle of our struggle with JTF-170 over how to interrogate al-Qahtani. It set off screaming threat-warning alarms. I was afraid Dunlavey was going to sell the lawyers a bill of goods—that torture was necessary and effective—and, worse, that he would likely be successful. I was also developing a new rule of thumb for the war on terror: where lawyers go, bad things follow.
As the plane looped around the southern tip of Cuba, I thought, I just need to get in the room with these guys and explain to them how an interrogation really works and persuade them why more enhanced procedures won’t.
They weren’t experts. Dunlavey was probably trying to pull the wool over their eyes. His first step in taking unprecedentedly harsh measures with al-Qahtani would be getting policy approval from this team. But I was going to get my two cents in first. I couldn’t let Dunlavey’s ridiculous plans win approval.
We bumped down on the runway that was already wavy with heat. Thirty minutes later, the ferry pulled up on the east side of the bay. An iguana was sunning itself down the pier. I looked north up the hill, covered in grass that had browned over the summer. About 200 yards away sat the building originally designated for military commissions. It hadn’t seen much action in the nine months since Gitmo had opened. If Dunlavey’s plan got approved, we might as well close it up.
• • •
The CITF headquarters was just a ten-minute drive from the ferry landing. We had taken over the old daycare center, right in the middle of the residential section of the base. I walked in the door to bad news.
“Hey, Mark,” said XXXX XXXXXX. “How was the flight?”
“Not bad.”
“Things are heating up.”
“Already pretty hot,” I said, grabbing a bottle of water.
“No. Dunlavey’s been talking to Haynes.” Jim Haynes was Rumsfeld’s counsel at the Department of Defense. He was also part of the DVs delegation arriving the next day.
Jeff continued. “He’s telling Haynes his interrogators are constrained. He wants to use more aggressive techniques.” It was more complicated than that, though. Jim Haynes was also at the top of CITF’s command chain. Dunlavey had the ear of the man we reported to at the Pentagon. Something stunk, all right.
I winced. But it’s OK, I told myself. I had actual experience investigating terrorists. CITF and the FBI had discovered the identity of the twentieth hijacker. JTF-170 had nothing. Of course, this was probably part of the problem: Dunlavey was desperate to have anything to show for his miserable command at Gitmo.
The next day at 10:00 AM, I was standing just outside the Camp Delta command post, waiting to meet up with the lawyer delegation. In April we had finally gotten a new camp built for the swelling ranks of detainees and were able to close Camp X-Ray. Camp Delta was still a series of low-slung buildings surrounded by a maze of chain-link fences and concertina wire. Unlike the isolated X-Ray, Delta was plopped down right on the coast, where emerald water lapped up on rocks.
Fifteen minutes later, a small bus approached the post. As I walked out to greet the DVs, Dunlavey blew right past me. I caught up with the group and followed them through one of the new Camp Delta cellblocks. They were an upgrade from the crude conditions at Camp X-Ray, but hardly fancy. The blocks were built out of shipping containers welded together lengthwise to create a larger structure. A metal roof kept the rain out, but the cellblocks were otherwise open-air, their walls made out of a sturdy metal mesh. Each of the 6'x8' cells, barely big enough for one prisoner, had mesh doors with slots at waist height. The slots were just large enough for food trays to go in or hands to come out for cuffing. Inside their cells, about two dozen detainees in flaming-orange jumpsuits looked on as the lawyers silently walked down the narrow hallway in their dark suits. Some glared, others stared blankly.
The next stop for the DVs was an interrogation in another new facility. When they arrived, the detainee—a cooperative one who had been preselected—was talking with interrogators in a spare, beige-paneled room with a one-way mirror. On the other side, the lawyers stood in a darkened observation room. The whole thing was a show. It was the only way to make JTF-170’s interrogation program look good.
Afterward, the group walked out to a waiting bus. I followed them to the door but was pulled aside by one of Dunlavey’s assistants.
“Mark, you’re not allowed on the bus.” He looked a little uneasy.
“Why not?”
“Dunlavey thinks it would be inappropriate. He suggested you wait at the CITF headquarters to meet them following the JTF-170 briefing.”
The group continued on to tour the medical facilities and visit the site of the future building for military commissions. I headed back to my task force headquarters.
While I waited, the senior lawyers sat around a table in a cramped conference room, listening to Dunlavey’s pitch for additional interrogation techniques. “We’d like to take the Koran away from some detainees—hold it as incentive,” suggested Dunlavey. It was just one of a long list of requests.
The other DVs in attendance were mostly silent, but Jim Haynes weighed in, saying Dunlavey should be able to implement additional forms of psychological pressure. Haynes opined, “JTF-170 should have the authority in place to make those calls per POTUS order. JTF-170 would have more freedom to command,” said Haynes.
Though nothing was signed, the message that JTF-170 lawyer Diane Beaver took away was “Do what needs to be done.” The lawyers implicitly green-lighted torture at Gitmo.
Meanwhile, I sat anxiously at my desk for an hour and a half before calling up Dunlavey’s office.
“How long is this briefing going on?” I asked.
“It’s over.”
“OK. Good. Should I expect the DVs now?”
“No. They departed forty-five minutes ago.”
“What?” I was incredulous. Dunlavey knew I would push back on his request in front of the lawyers. There was apparently no way he was going to let me in the room. I wanted to confront Dunlavey for icing me out, but I needed to get back up to Fort Belvoir that night. My pilot
s were telling me we had to leave right then to thread the needle between two potential hurricanes. Ultimately, there was nothing I could do at Gitmo to stop the spread of aggressive interrogations. All my best options at that point involved directly challenging JTF-170 through the official channels. I could do that just as well from Virginia.
• • •
The next week brought more lawyers. Specifically, our senior lawyer, Sam McCahon, and XXXXXXXX XXXXXXX, the XXXXX XXXXXXX at the CIA Counterterrorism Center. XXX XXXXX XXXXXXXX XX XXXXX XXX XXX XXXXXX XX XXX XXXXX XX XX XXX XX XXXXX XX XXXXX XX XXXXXX XXXX XX XXXX XXXXX XXX XXXXXX XXXXXXXXXX XXXXXXXX I wasn’t privy to the specifics XX XXXXX XXXXXXXXX XXXXX, although I did know XXX XXXXXX had been abusing and rendering people around the world.
During the flight, Sam recalled Fredman leaning in toward him. “I know we disagree on the permissible techniques,” said XXXXXXX, “but I have a memo from the attorney general saying they are legal and authorized.”
“Really?” asked XXX. “I’d love to see that.”
“I don’t carry a copy around with me,” said XXXXXXX.
“Maybe you should,” said XXX sarcastically.
• • •
It turned out that XXXXXXX was not coming down to Gitmo to meet with XXX XXX XXXXXX. He was meeting with Dunlavey’s lawyer, Diane Beaver, and a half dozen others, among them psychologist XXXX XXXX and psychiatrist Paul Burney, the two behavioral scientists who had been drafted into JTF-170’s pseudo-BSCT. They’d received training in SERE counterresistance techniques and had been developing plans to exploit al-Qahtani, but so far no one was able to define what “getting tougher” meant from a legal standpoint. I wasn’t at the meeting, but it wasn’t hard to guess what everyone hoped to get out of it. The delegation of lawyers that had met with Dunlavey the previous week talked about harsher interrogation on a policy level. But Dunlavey wasn’t doing the interrogations. XXXXXXX was meeting with the people who actually had to carry out Dunlavey’s orders. He was there to offer XXX XXXXX advice on the legal nuts and bolts of what actually happened in an interrogation booth.
Among the other attendees was David Becker, a squirrely guy with the strange title of chief of the interrogation control element. Becker was part of the DIA contingent who had begun staffing JTF-170’s interrogation teams. Rounding out the main players were Dunlavey’s intel chief Jerry Phifer, a skinny guy who never seemed well-liked, even by his own team, and Colonel Cummings, a broad-chested member of Dunlavey’s staff whom I always figured for a stand-up guy.
When I found out about the meeting, I immediately sent one of my lawyers in to take detailed notes. “If someone burps,” I said, “I want to know who.”
Diane Beaver had called the meeting, but it was driven by Dunlavey’s increasing frustration with his team’s intel collection. He particularly wanted information that proved the link between Al Qaeda and Iraq.
Up to that point, the only such evidence had come from the head of a training camp director, Ibn Al-Shaykh al-Libi, who was captured in November 2001. He was initially interrogated by the FBI at Bagram Airfield in Afghanistan. During this period, the FBI agents had convinced al-Libi to give up some useful information on Richard Reid, the so-called Shoe Bomber, who in December 2001 tried to blow up Flight 63, en route from Paris to Miami, with plastic explosives packed into the hollowed-out bottom of his work boot.
But al-Libi didn’t start talking about Al Qaeda in Iraq until a XXX officer marched into the FBI interrogation session and began yelling at him in Arabic: “You’re going to XXXXX! And while you’re there, I’m going to find your mom and fuck her!”
XXX XXX and military police then grabbed al-Libi and carried him out of the room by his arms as the FBI agents watched. Al-Libi was strapped to a stretcher and thrown on an airplane to Egypt, where he was brutalized, eventually admitting there were high level connections between Al Qaeda and Iraq.
The Counter Resistance Strategy Meeting was called to order at 1:40 PM. Everyone present knew the CIA was already using enhanced interrogation techniques at black sites. They wanted XXXXXXX to explain the legal nuances of these techniques. They wanted to know what they could get away with legally. However, XXXX and Burney started out by mentioning that rapport-based techniques were likely more effective.
“Harsh techniques used on our service members have worked and will work on some,” argued Phifer. “What about those?”
“Force is risky,” said XXXX, “and may be ineffective due to the detainees’ frame of reference. They are used to seeing much more barbaric treatment.”
Having offered the truth about interrogation processes to a mostly uninterested room, XXXX continued by advocating for the camp-wide program that could “manipulate all aspects of the detainees’ environment to foster and complete compliance.” This would include isolation and disrupting sleep patterns. The meeting’s tone and content turned increasingly conspiratorial.
“We can’t do sleep deprivation,” said Colonel Cummings.
“Yes, we can,” said Beaver, “with approval.”
“We may need to curb the harsher operations while the ICRC [International Committee of the Red Cross] is around,” warned Beaver. “It’s better not to expose them to any controversial techniques. We must have the support of the DOD.”
“We have had many reports from Bagram about sleep deprivation being used,” said Becker.
“True,” said Beaver, “but officially it is not happening. It’s not being reported officially. The ICRC is a serious concern. They will be in and out, scrutinizing our operations, unless they are displeased and decided to protest and leave. That would draw a lot of negative attention.”
XXXXXXX said the CIA was not held to the same standard as the military. “In the past, when the ICRC made a big deal about certain detainees, the DOD had moved them away from the attention of the ICRC.” There was even a term for these disappearing people, “ghost detainees.” They remained at the prison but were never seen again by the Red Cross.
The room fell briefly silent.
“The CIA has employed aggressive techniques on less than a handful of suspects since 9/11,” said XXXXXXX. “Under the Torture Convention, torture has been prohibited by international law, but language of the statutes is written vaguely.” He continued, “It’s basically subject to perception. If the detainee dies, you’re doing it wrong. So far, the techniques we have addressed have not proven to produce these types of results.”
He added, “Everything in the BSCT white paper is legal from a civilian standpoint,” referring to a document XXXX and Burney had created listing techniques that seemed to go beyond the bounds of acceptable protocol.
“Any of the techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual,” advised XXXXXXX. “Medical personnel should be present to treat any possible accidents. The CIA operates without military intervention. When the CIA has wanted to use more aggressive techniques in the past, the FBI has pulled their personnel from theater. In those rare instances, aggressive techniques have proven very helpful.”
• • •
“We’ll need documentation to protect us,” said Beaver.
“Yes,” replied XXXXXXX. “If someone dies while aggressive techniques are being used, regardless of the cause of death, the backlash of attention would be severely detrimental. Everything must be approved and documented.”
Becker advised that law enforcement agencies (LEAs) such as the FBI “will not participate in harsh sessions.”
“There is no legal reason why LEA personnel cannot participate in these operations. Does SERE employ the wet towel technique?” asked Beaver.
“If a well-trained individual is used to perform this technique, it can feel like you’re drowning,” XXXXXXX answered. “The lymphatic system will react as if you’re suffocating, but your body will not cease to function. It’s very effective to identify phobias and use them [i.e., insects, snakes, claustrophobia]. The level of resistance is direct
ly related to a person’s experience.”
“In the BSCT paper it says something about ‘imminent threat of death,’ ” Beaver noted.
“The threat of death is also subject to scrutiny and should be handled on a case-by-case basis,” said XXXXXXX. “Mock executions don’t work as well as friendly approaches, like letting someone write a letter home, or providing them with an extra book.”
“I like the part about ambient noise,” said Becker.
When the meeting adjourned at 2:50, Dunlavey, Phifer, Becker, and the behavioral scientists had policy cover from the senior interagency lawyer delegation that had visited the previous week. Now they had an argument for efficacy from the XXXXX counsel for the CIA Counterterrorism Center.
Back in Fort Belvoir, I got a phone call that XXXXXXXX XXXXXXX had provided the DOD torture architects with that high-level legal cover. They could counter any opposition from the CITF. I called my superiors at the Pentagon and asked them to do what they could to intercede. They listened, noted that they understood our position, and advised that they would report it up the chain. But ultimately they all worked for Jim Haynes, who was part of the problem. With the CIA touting their successes, no one took the issue on.
• • •
Meanwhile, XXXX and Burney had drafted a memo partially based on the SERE interrogation tactics they had learned at Fort Bragg. Some of the other techniques were made up. After all, Gitmo was the Battle Lab, a place for experimentation.
In academic fashion, XXXX and Burney divided detainee treatment into three categories. Category I techniques were described as “mildly adverse approaches”—such as threatening a detainee that he would be at Guantanamo forever. If, at the end of the session, the detainee was still uncooperative, interrogators could request Category II.