Unjustifiable Means

by Mark Fallon

  According to XXXX and Burney, Category II was for detainees “with intelligence relative to the security of the United States.” It permitted, for example, hooding detainees, shackling them to the wall, and “dietary manipulation”—starving them for up to twelve hours.

  The final level, Category III, was designed for detainees “that have evidenced resistance and are suspected of having significant information pertinent to national security.” These detainees could be locked up with no human contact, including access to doctors. They could be dragged from those cells by soldiers yelling at them, shackled to the floor in a room, and interrogated for twenty hours a day, indefinitely. They could be left exposed in the cold “until such time as the detainee begins to shiver.” Interrogators could pretend they were going to kill a detainee, even acting out the parts leading up to execution.

  The doctors also recommended implementing a “controlled chaos” plan for the general population within the prison camp. Resistant detainees should be limited to four hours of sleep a day and deprived of “comfort items,” such as sheets, blankets, mattresses, washcloths, toilet paper, Korans, and other religious items. Fans and generators could be used to create white noise.

  “All aspects of the [detention] environment,” the doctors recommended, “should enhance capture shock, dislocate expectations, foster dependence, and support exploitation to the fullest extent possible.”

  The paper included a disclaimer: “Experts in the field of interrogation indicate the most effective interrogation strategy is a rapport-building approach.” It also mentioned that physical pressures would not necessarily increase the flow of accurate information. These warnings only served to prove XXXX and Burney knew what they were doing was unscientific. In fact, they knew it was wrong. And, finally, they were probably still not totally comfortable with this document Dunlavey had asked them to produce. But instead of standing up to Dunlavey, they gave him exactly what he wanted: medical cover to ratchet up pressure on al-Qahtani.

  That same evening, JTF-170, the pseudo-BSCT unit, and interrogators from the Defense Intelligence Agency got busy. They seized al-Qahtani from FBI control in the naval brig and transported him to Camp X-Ray. Initially X-Ray had been used because there were no other alternatives. This time, it was an interrogation tactic.

  The camp had been crowded when he first arrived; now al-Qahtani was alone. He sat at Camp X-Ray for days by himself. Blinding lights kept him awake. Speakers were aimed at him, playing loud music such as Christina Aguilera’s “Dirrty” over and over again. At other times military dogs were brought into his cage to bark and scare him.

  The FBI allowed their personnel to observe al-Qahtani’s interrogations, but if they saw abusive activity, they were to report it to their unit chief. As long as there was no torture involved, the FBI could participate. We pulled our people out. If they actually witnessed—much less took part in—felonies and didn’t take action, it would put them in a very tight spot legally. In future cases, for example, defense attorneys could impeach them as witnesses. And if they did intervene—stop the action in progress and report it—it’s likely the abusive interrogator(s) would have just been turned over to Dunlavey for referral. The general probably wouldn’t have done squat. We also felt that our very presence might make it appear as if we sanctioned the actions.

  A few days into the more aggressive treatment of al-Qahtani, psychiatrist Paul Burney sent an e-mail to psychologist Morgan Banks at Fort Bragg. It read, in part, “[P]ersons here at this operation are still interested in pursuing the potential use of more aversive interrogation tactics. . . . Were more aversive techniques approved for use in the future by appropriate people, the operation would like to have a few task force personnel specifically trained in various techniques.”

  “I do not envy you,” Banks wrote back. He declined to provide any contact information for people who could train Gitmo personnel in even more abusive techniques than the SERE he had already trained them in. Banks told Burney that additional SERE techniques would probably not be useful. “The training that SERE instructors use is designed to simulate that of a foreign power [to] encourage resistance among students.” Banks, who had eagerly arranged training for XXXX and Burney, seemed to be distancing himself from SERE tactics.

  Whatever his real motivations, Banks was right. Al-Qahtani had originally been talkative. Toward the end of the FBI investigation, he began clamming up. But once the enhanced techniques began, al-Qahtani shut down completely. The FBI felt al-Qahtani’s health was deteriorating. JTF-170 became convinced their techniques weren’t enough to get additional intel out of al-Qahtani. On October 10, 2002, they moved him back to the navy brig.

  • • •

  Two days later, I learned General Rick Baccus, the commander of JTF-160, was going to be relieved of command, after just seven months. It wasn’t much of a surprise, as Dunlavey hated Baccus. Just as Dunlavey accused me of being unpatriotic, he accused Baccus of “coddling detainees.” As head of Military Police at Gitmo, Baccus not only treated prisoners well; he accommodated meal times for Ramadan, the month-long Islamic holiday when Muslims have to fast during daylight hours. For Dunlavey, this kind of respectful treatment by JTF-160 was making it harder for him to break down the detainees. With his intel coup still elusive and the clock ticking on his tenure, Dunlavey was doing anything possible to turn up the heat on the detainees.

  The general may only have had a few weeks left, but he was still intent on removing all opposition to the psychologically abusive plans developed by his pseudo-BSCT. I kept empty boxes and a handcart in my office. Dunlavey had friends in high places. I wondered if I’d be fired next. In a way, getting booted might be a relief. While at Gitmo, I kept my demeanor professional. I said hello to Diane Beaver or Dave XXXX if I passed them on the base. But it was getting harder. I hoped one day I’d see them, or Dunlavey, in an interrogation room, where I’d be reading them their Article 31B rights—the military equivalent of Miranda rights—before questioning.

  Gitmo was also forcing me to expend energy protecting the people we wanted to see prosecuted. Al-Qahtani was likely the twentieth hijacker. He was fully prepared to fly a plane into the White House or Capitol. I didn’t like him; I just didn’t want our people breaking the law.

  What’s more, Guantanamo was just one aspect of CITF’s mission. I still had people in Afghanistan flying helicopters and chasing bin Laden. Two hours after hearing the latest unsettling news from Gitmo, I’d be on the phone talking about a sensitive site exploitation, or an agent who had to hop on the back of a tank to get into a village.

  • • •

  On October 11, 2002, the day after al-Qahtani was moved back to the navy brig, Dunlavey requested authority for the Battle Lab to expand its ways of making him talk. Dunlavey had the legal cover provided by XXXXXXX along with the medical authority offered by XXXX and Burney. He leveraged all this expert opinion to ask for official approval from the SOUTHCOM commander, General James T. Hill, to use the three categories of interrogation that his pseudo-BSCT had developed. In addition to the seventeen tactics described by Burney and XXXX, there were two new ones: the use of phobias, and covering a detainee’s face with a wet towel and dripping water on it to create the sense of suffocation—what some people call waterboarding or water treatment. These additional tactics may have appeared as a result of the CIA counsel XXX XXXXXXXXX recommendations at the October 2 meeting.

  Accompanying Dunlavey’s official request was a cover memo by Diane Beaver bluntly stating, “the proposed strategies do not violate applicable federal law.”

  Beaver had written this far-reaching memorandum with the limited legal resources available at Guantanamo. Though two weeks earlier she had met with some of the most powerful lawyers in the government, they had only offered policy cover. To justify the specific techniques the pseudo-BSCT had developed, she was now forced to rely on her own admittedly incomplete knowledge of the applicable laws. Beaver cobbled together some additional information fr
om the Internet, such as it was in Gitmo in 2002. In a sense, this lack of complete access to precedents and huge bodies of law may have made the process easier. Beaver didn’t know anything about international law, so she primarily steered clear of those issues. She figured someone further up the chain of command would have a better understanding of the subject matter, anyway. And the president had already said the Geneva Conventions didn’t apply to these detainees, so she didn’t challenge that. Beaver focused on American law, but even there she might have lost her critical edge.

  Dunlavey was under huge pressure to get intel—and it came right down the chain of command to Beaver. She knew the general wanted an opinion in favor of these enhanced interrogation techniques. Like so many other people, Beaver also felt that national security was at risk if the United States couldn’t figure out a way to get information from detained terrorists. Squelching the terrorist threat was also a personal mission to her; Beaver had been in the Pentagon on 9/11 when the plane hit. Moreover, the most popular TV show at Gitmo that year, 24, suggested torturing terrorists was the kind of thing heroic and attractive people do to save lives. So it’s possible that all these factors were weighing on Beaver’s mind as she compared each of the techniques Dunlavey had requested against the Eighth Amendment’s ban on cruel and unusual punishment. In the end she found the amendment did not ban any tactic “applied in a good faith effort and not maliciously and sadistically for the very purpose of causing harm.”

  In a few pages, Beaver wiped away all of the many legal safeguards against torture. But just in case some interrogation techniques violated the uniform code of military justice, Beaver had one more legal innovation: granting interrogators “advance immunity” from punishment for these crimes.

  When the head of SOUTHCOM, General Hill, received the request, he fully endorsed the Category I and II techniques XXXX and Burney had developed, although he was unsure about the legality of the Category III measures. His lawyers, and those at the army, navy, air force, and marines, had plenty of additional concerns about the audacious document. In the end, the most senior lawyers for each of the four military services were on record opposing JTF-170’s “counter-resistance strategies.”

  Even when Dunlavey’s request made it up to the chairman of the Joint Chiefs of Staff, the counsel to the chairman, Navy Captain Jane Dalton, found Beaver’s legal analysis “woefully inadequate” and believed there were “significant, significant concerns” with the Category II and III techniques. But with the strongly worded endorsement from Hill, Dalton was unwilling to unilaterally oppose the request. Instead she began a legal review and set up a video conference with Gitmo, DIA, and SOUTHCOM.

  That was as far as Dalton got. The chairman of the Joint Chiefs of Staff, General Richard Myers, ordered her to stop the review. The draft memos Dalton’s staff had begun writing stated: “We do not believe the proposed plan to be legally sufficient.” That’s lawyer talk for illegal. But no one ever saw the memos.

  CHAPTER 8

  * * *

  HONOR BOUND TO DEFEND FREEDOM

  I first met the incoming commander of the new unified Joint Task Force Guantanamo (JTF-GTMO), General Geoffrey Miller, at 12:30 PM on October 28, 2002. Miller was an artillery officer with no background in intel who had previously served as the army’s deputy chief of staff for personal and installation management. Artillery guys are trained to hold ground and repeatedly pound a target with kinetic energy to achieve an objective. It was a very different culture from the intel world, but we were still excited to have a regular general taking over at Guantanamo. Not only had Dunlavey been pursuing abusive interrogation tactics but his bizarre behavior was undermining discipline. Maybe Miller could provide the levelheaded leadership so lacking during Dunlavey’s tenure. To get our relationship off on the right foot, Britt Mallow and I invited Miller down to the glamorous CITF headquarters to share all the intel and interrogation expertise Dunlavey had ignored.

  First appearances don’t necessarily mean much, but I couldn’t help noticing when Miller walked in the door he had an extraordinarily rigid posture, even for a career military officer. We shook hands as he walked into the office, and then I led him over to the conference room. His posture, I would soon find out, wasn’t the only thing unyielding about the man. During the two hours we spent together, Miller made it clear that his primary objective was to unify and integrate the detention and intelligence operations at Guantanamo. He told us he’d learned at his Pentagon pre-briefings that CITF was constantly interfering with the Gitmo intelligence-collection mission. He wanted our function to be subordinate to him, rather than having a separate reporting chain of command. In fact, he wanted complete control of everything pertaining to detainees at Guantanamo.

  Miller also had a curious verbal tick—ending his sentences in “hoo-ah.” For example, “CITF needs to be a team player, hoo-ah.” Was he just being gung-ho? Maybe, but the way he said “hoo-ah” made me think of small-arms fire. The more I listened to him, the more I found myself worrying that Guantanamo was going to be led not by a voice of reason but by its exact opposite—a guy who insisted on doing things his own way and damn the results. Sort of like the general who was just departing—but a more competent hard-ass.

  After Miller left, I sat back down in my seat, deflated. The phone rang. The army assistant chief of staff for intelligence, Terry Ford, was on the line to let me know the Guantanamo request for aggressive interrogation techniques had already been forwarded to the Joint Chiefs of Staff. This was unusually fast—and not hard to figure out. Just like Dunlavey, Miller could bypass the chain of command and directly contact the secretary of defense. Miller wanted the authorities for advanced interrogations in place for his arrival, and Rumsfeld’s office was going to get it for him. Miller wasn’t coming to Gitmo to fix Dunlavey’s mess. He was being brought in to execute the strategy that Dunlavey began.

  On November 4, 2002, Miller officially became JTF-GTMO’s first commander. He started his term with a new motto: “Honor bound to defend freedom.”

  When soldiers on base saluted each other, one would say: “Honor bound!”

  The other would respond: “Defend freedom!”

  Signs adorned with the new logo went up everywhere, on the base entrances and in the lobbies of buildings. It was painted, one letter at a time, on the cement barriers outside the prison camp fences.

  Miller also immediately established his totalitarian management style, one that seemed to mesh well with Rumsfeld’s. He had little patience for anything that didn’t comport with the manner in which he wanted to execute his mission. Miller’s approach to interrogation was just as nuanced. He even had a tag line for how to deal with detainees: “We’ve got to show them that we have more teeth than they have ass, hoo-ah!”

  Miller’s forceful style did win him some adherents. Psychologist Larry James—XXXXXX former mentor who had arranged for him to get SERE training—couldn’t say enough good things about Miller. James described Miller as “the kind of commander you wanted to be around—a soldier’s soldier, all business and no bullshit.”

  After initially just advising XXXX, James joined Miller’s pseudo-BSCT and took over running it. Once at Gitmo, he told Miller the Army Field Manual FM 34-52 “Intelligence Interrogation” wasn’t the best guidance on the subject. “[W]hat I can bring to the table, sir, is my knowledge of psychology and how to best get people to talk. There are better ways, more effective ways, to get this intel.” James viewed Gitmo as a career opportunity to psychologically exploit detained prisoners. In exchange, Miller told him to advise the interrogators on tactics, even though James had no interrogation experience himself.

  James wasted no time. “Everything about General Miller screamed ‘action,’ ” he later wrote in Fixing Hell. “You felt like you should always be doing something productive, getting things done, not standing around like a slack-ass. So with that in mind, I didn’t waste any time getting to my main task at Gitmo—improving the way we interrogated pris
oners.”

  With authority granted to utilize additional interrogation tactics, some of them untested, James was in the right place. Detainees at Gitmo would become part of an experiment to test psychological theories and control human behavior in custodial conditions. JTF-GTMO called their new psychologist-driven activities Behavior Management Plans. One plan called for immediate thirty-day isolation for detainees upon arrival at Gitmo. Their objective was, before any other tactics were used, to create dread and make the detainees totally dependent on the interrogators. The pseudo-BSCT was practicing the theory of “learned helplessness, but they renamed it “demonstrated omnipotence.”

  CITF’s treatment didn’t improve either. We retained our separate chain of command, which made us the loose cannon on Miller’s deck—the one unit he didn’t have total control over. It was obvious that our freedom irked him to no end. It was equally obvious that he had no time or patience for other perspectives on how to handle interrogations. We tried to get Mike Gelles—who had more interrogation consultation experience than everyone on the pseudo-BSCT combined—in to speak with Miller. But the new commander was much less accessible than Dunlavey. He required an appointment in advance, as well as a briefing package, with bullets on what was going to be discussed for his staff to analyze in advance. Miller told CITF he only believed in “by-the-numbers staffing” and wasn’t going to accept any appointments for discussions. The meeting with Gelles never even happened.

  Eight days after he arrived, Miller used the authority he’d been given and requested final approval for an enhanced interrogation plan for al-Qahtani. At this point, support for psychologically harsh interrogation at Gitmo had been voiced in some form or another by top lawyers in the administration, the military, and the CIA. Miller’s team also had support for efficacy of the procedures as well as medical cover from Morgan Banks. So why did Dunlavey and then Miller keep asking for additional approval? First, they were working in a command-and-control structure; a novel undertaking in the army simply means filling out lots of paperwork. But there was also something darker than bureaucratic protocol at work: the generals knew they were breaking the law. In fact, all the way up the chain of command, the numerous legal reviews and secret memos were not just an exercise in ass covering but a kind of guilty gesture.