by Mark Fallon
UN reports have a way of dying slow, slow deaths, if they are even noticed, but the summer of 2008 was an election season, and a momentum was building that Washington couldn’t ignore. In August of that year, the Department of Defense disbanded its Counterintelligence Field Activity, based on allegations of unauthorized collection of information on US persons and unlawful procurement practices. Although CIFA’s budget and staffing were never made public, best estimates are that the agency spent more than $1 billion during its four-year existence and had perhaps 500 full-time employees and as many as 900 contractors working for it at the time it was closed.
Almost simultaneously, the Department of Justice’s Office of Professional Responsibility issued a report titled “Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists.” The report concluded that the FBI Guantanamo unit chief had indeed so advised that Mohammed al-Qahtani be subjected to interrogation techniques, and that such advocacy “appears to conflict with the spirit if not the letter of Director [Robert] Mueller’s instructions.” It did much more than that. It helped contribute to the narrative created by the CIA that torture was necessary and effective. It may have also been a violation of the laws the FBI is responsible for investigating.
But the report was as notable for those who didn’t sign off on it as those who did. David Addington, the former counsel to Vice President Cheney, and Timothy Flanigan, former deputy White House counsel under Alberto Gonzales, did not respond to requests for interviews. Attorneys for both CIA headquarters and the CIA Counterterrorism Center likewise declined to be interviewed in the investigation. So did Attorney General John Ashcroft.
Late December 2008 saw the release of the Senate Armed Services Committee report on detainee abuse, a document that explicitly spelled out the connections between detainee abuse in Guantanamo, Iraq, and Afghanistan and high-level authorization and cover-ups—exactly the dynamics I had spent two years of my life watching develop. The SASC report also laid out the story of how SERE techniques were repurposed for harsh interrogations.
In a letter accompanying the report’s release, Michigan Senator Carl Levin, the chairman of the Senate armed services committee, recounted how he asked some questions of Jay Bybee, the former assistant attorney general for the Department of Justice’s Office of Legal Counsel. On August 1, 2002, Bybee had issued two important opinions about the legal standards applicable to interrogations. One was sent to the White House, the other to the CIA. This much was already known; what was interesting was the backstory behind them. Not only did Bybee make clear that senior administration lawyers, including Alberto Gonzales, David Addington, and John Ashcroft, were consulted in the writing of the opinions, but so was the CIA itself.
In July 2002 the Agency had provided OLC with an assessment of the psychological impact of SERE-based interrogation techniques. Bybee wrote to Levin that the CIA assessment was used to “inform” his opinion about whether or not the techniques were legal. In essence, the top lawyers in the government were asking the CIA to tell them whether or not their program was abusive before they approved it. As Levin said, they “twisted the law to create the appearance of legality.”
The SASC report also thoroughly debunked the claims of top administration lawyers and officials that the abuses were the result of a “few bad apples,” concluding that, among other things, the well-known detainee abuses at Abu Ghraib in late 2003 “appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO.” The report also laid responsibility for the abuse at the feet of Donald Rumsfeld, whose “authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there . . . including military working dogs, forced nudity, and stress positions.”
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The granddaddy of all the reports on detainee abuse was the Senate Select Committee on Intelligence’s “Report on Torture,” one of the most comprehensive bipartisan congressional oversight investigations in history. The SSCI spent almost six years on the study and analyzed approximately 6.3 million pieces of documentary evidence from CIA cables, e-mails, briefing materials, memos, interview transcripts, and intelligence reports, as well as the CIA’s own internal reviews of the program. When the 500-page executive summary of the report was made public on December 9, 2014, Dianne Feinstein stood on the floor of the US Senate and told her colleagues and the world the report “shows that the CIA’s actions a decade ago are a stain on our values and on our history.”
John McCain followed: The report, he said, is “a thorough and thoughtful study of the practices that I believe not only failed their purpose—to secure actionable intelligence to prevent further attacks on the US and our allies—but actually damaged our national security interests, as well as our reputation as a force for good in the world.”
I couldn’t agree more. Even in executive summary format, what became quickly known as the “Torture Report” is unequivocal in its findings and conclusions, which included:
1. The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees.
2. The CIA’s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness.
3. The interrogations of CIA detainees were brutal and far worse than the CIA represented to policymakers and others.
4. The conditions of confinement for the CIA detainees were harsher than the CIA had represented to policymakers and others.
5. The CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the CIA’s Detention and Interrogation Program.
6. The CIA had actively avoided or impeded congressional oversight of the program.
7. The CIA impeded effective White House oversight and decision making.
8. The CIA’s operation and management of the program complicated, and in some cases impeded, the national security mission of other executive branch agencies.
9. The CIA coordinated the release of classified information to the media, including inaccurate information concerning the effectiveness of the CIA’s enhanced interrogation techniques.
10. The two contract psychologists who devised the CIA’s enhanced interrogation techniques also played a central role in the operation, assessments, and management of the CIA’s Detention and Interrogation Program. By 2005 the CIA had overwhelmingly outsourced operations related to the program.
11. CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice or had not been authorized by CIA Headquarters.
12. The CIA did not conduct a comprehensive or accurate accounting of the number of individuals it detained and held individuals who did not meet the legal standard for detention. The CIA’s claims about the number of detainees held and subjected to its enhanced interrogation techniques were inaccurate.
13. The CIA failed to adequately evaluate the effectiveness of its enhanced interrogation techniques.
14. The CIA rarely reprimanded or held personnel accountable for serious and significant violations, inappropriate activities, and systemic and individual management failures.
15. The CIA marginalized and ignored numerous internal critiques, criticisms, and objections concerning the operation and management of the CIA’s Detention and Interrogation Program.
16. The CIA’s Detention and Interrogation Program was inherently unsuitable and had effectively ended by 2006 due to unauthorized press disclosures, reduced cooperation from other nations, and legal oversight concerns.
17. The CIA’s Detention and Interrogation Program damaged the United States’ standing in the world, and resulted in other significant monetary and nonmonetary costs.
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In August 2014, while the CIA was publicly criticizing the conclusions in the “Torture Report,” the Agency quietly conceded many of the issues raised there in a “public” document called “Note to Readers.” In the note, the CIA admitted it had misrepresented the importance of information obtained from Khalid Sheikh Mohammed (KSM) and that in some cases, it already possessed the information purported to be “unavailable” prior to KSM’s interrogation. The CIA also admitted it misrepresented the number of detainees in custody and did not notify the secretary of state of all of its black-site prisons, and it further acknowledged that information used by President Bush in a 2006 speech was in error.
Such admissions are rare in the Agency’s history, and this one was clearly meant to be hard to see. Even the Senate Intelligence Committee was unaware of the note’s existence for at least a year after it was first made public. Except for the alert attention of BuzzFeed journalist Ali Watkins, the CIA’s correction for the record might well have gone completely unnoticed.
The takeaway from all these reports and investigative panels: The progress forward—away from condoning torture and protecting torturers—has been painfully slow and incomplete. Tens of thousands of pages of articles, reports, programs, and documents covering the matter have been printed in the past decade or so, some of them with fascinating, even horrifying revelations. But the record on holding those responsible for the abuses accountable for their actions has been spotty at best. What follows is a sampling.
ARMY MAJOR GENERAL MICHAEL DUNLAVEY
First commanding officer of the Joint Task Force 170 at Guantanamo
Dunlavey started the abusive Behavioral Science Consultation Team and applied to expand enhanced interrogation techniques, such as locking up detainees, restricting human contact including doctors, shackling detainees to the floor, and leaving them shivering in the cold. A lawyer and state judge, Dunlavey added his legal opinion to the EIT request, stating: “I have concluded that these techniques do not violate US or international law.”
After being relieved of his command at Guantanamo in November 2002, Dunlavey became the assistant director for homeland security at the CIA. During his time there, he contacted Britt Mallow to see if he could visit the CITF headquarters on Fort Belvoir. Mallow said no—he was persona non grata.
Dunlavey retired from the army in 2004 and returned to his position as a judge of the Pennsylvania Court of Common Pleas for the 6th Judicial District, based in Erie, Pennsylvania. In 2012 he retired. In November 2016 Dunlavey spoke to a veterans group in support of Donald Trump’s selection of retired army lieutenant general Michael Flynn as national security advisor.
LIEUTENANT COLONEL DIANE BEAVER
Counsel for Joint Task Force 170 at Gitmo
Beaver’s flawed legal arguments were used as cover for torture at Guantanamo. After leaving Gitmo, she was promoted to the staff of the Pentagon’s Office of General Counsel.
Beaver was later called to testify before the Senate Armed Services Committee (SASC), where she faced tough questioning from Missouri senator Claire McCaskill about her suggestion that interrogators be granted “advance immunity.”
“What planet are we on?” asked McCaskill. “There is no such thing as ‘immunity in advance.’ That would be a crime.”
Beaver also said she believed there were no violations of law at Gitmo, adding that detainees “were beaten to death at Bagram, Afghanistan.”
McCaskill replied: “It’s a sad day in this hearing room when we say, ‘Well, it’s not that bad. At least they weren’t beaten to death.’ ”
Under questioning by other senators, Beaver claimed she wasn’t a military justice expert and that she had been hung out by the SOUTHCOM staff judge advocate. She further claimed she was “shocked” that her opinion “would become the final word on interrogation policies and practices within the Department of Defense.”
When asked about Beaver’s legal opinion during the same hearings, Alberto Mora testified, “I knew instantaneously, sir, that this was a flawed policy decision based upon inadequate legal analysis.” When asked if other staff judge advocates shared Mora’s views, he replied: “Sir, every judge advocate I’ve ever spoken to on this issue shared that view.”
A Toronto Globe and Mail review of the documentary movie The Guantanamo Trap: Four Ways of Looking at Torture wrote that Beaver “looks like any suburban neighbor, in a polo shirt and Bermuda shorts” before going on to note she will go down in history as “the torture lady.”
Beaver was last known to be practicing commercial litigation for the Bryan Cave law firm in St. Louis, Missouri.
MAJOR XXXX XXXX
Psychologist on the Behavioral Science Consultation Team at Gitmo
Although he had no training in interrogation when he arrived at Guantanamo, XXXX helped give medical cover for the SERE-base enhanced interrogation tactics that were used there. XXXX cowrote a paper detailing three categories, culminating with tactics such as twenty-hour-a-day interrogations and acting out mock executions. XXXX, who has a PhD in psychology, then became personally involved in the dehumanization of Mohammed al-Qahtani, including giving advice on how to break down the detainee and assessing al-Qahtani to ensure his abuse could continue.
In 2013 a psychologist and ethical campaigner named Trudy Bond asked the American Psychological Association to investigate XXXXXX role in torture at Guantanamo. The Center for Justice & Accountability also asked the APA to expel XXXX. The APA has declined both requests.
Complaints were also filed against XXXXXX license to practice psychology in the state of New York. The NY attorney general concluded XXXX “apparently, was asked to use his skills as a weapon; not to help the mental health of the detainees.” However, since there was no “therapist-patient” relationship between XXXX and the detainees, he did not consider XXXXXX behavior the “practice of psychology” under New York law.
MAJOR PAUL BURNEY
Psychiatrist on the Behavioral Science Consultation Team at Gitmo
Like XXXX, Burney helped give medical cover for the SERE-based enhanced interrogation tactics at Guantanamo. In addition to working with XXXX on a paper detailing three categories of interrogation tactics for approval, Burney became personally involved in al-Qahtani’s abuse. He was present when al-Qahtani was stripped, when he was forcibly groomed, when a female interrogator invaded his personal space, when he was threatened with a military working dog, and when he was treated like an animal.
When interviewed by the Senate Armed Services Committee in 2008, Burney admitted the purpose of his and XXXXXX 2002 trip to Fort Bragg was to find out how to use brutal SERE tactics for interrogations at Guantanamo. Burney said Morgan Banks was fully aware that the purpose of the visit was to “see if we could use SERE tactics to try to elicit information from detainees.”
Burney is currently a psychiatrist in Menasha, Wisconsin.
LIEUTENANT COLONEL DIANE ZIERHOFFER
Psychologist on the Behavioral Science Consultation Team at Gitmo
Zierhoffer consulted on the case of teenage detainee Mohammed Jawad. She noted that Jawad XXXXXXXX XX XX XXXXXX XXXXXXXXXXX XXX XXXXX XX XX XX XXXXX XXXXX XXXXXX XX XX XXXX XXXXXXXX XXXX XXX XXXXXXX XXXXXXX XXX XXXX XX XXXX XXXXXX XX XXX XXXXXXXXXXXXXX Zierhoffer then recommended to the interrogators: XXXXX XXX XX XXXXXXXXXXXXX XX XXXXXXXXX XXXX XXX XX XXXX XX XXXXXXXXXX
When called to testify in Jawad’s military commission hearing, Zierhoffer invoked her right against self-incrimination and refused to testify about her role in encouraging the detainee’s regimen of sleep deprivation, prolonged isolation, or other involvement in aiding, abetting, and encouraging detainee abuse.
During the trial, Jawad’
s defense counsel, USAF Major David Frakt, said, “What has this country come to when a licensed psychologist, a senior officer in the US armed forces, someone trained in the art of healing broken hearts and mending broken minds, someone with a duty to do no harm, turns her years of training and education to the art of breaking people, to the international devastation of a lonely, homesick teenage boy?”
Frakt also stated that Zierhoffer’s written report was “one of the most chilling documents that has been produced so far.”
Zierhoffer is currently a psychologist at the Department of Defense.
DAVID BECKER
Chief of the Interrogation Control Element at Guantanamo for the Defense Intelligence Agency
Becker served as a surrogate for General Dunlavey in enthusiastically advocating for the use of EITs at Gitmo, repeatedly citing their effectiveness in Afghanistan. Becker specifically requested SERE training for the military interrogators. Among other interrogation tactics the DIA officers used was forcing detainees to watch gay pornography and wrapping them in the Israeli flag.
Becker is currently a senior executive at the Department of Defense.
ARMY LIEUTENANT COLONEL JERRY PHIFER
General Dunlavey’s intelligence chief
Phifer worked with Becker to promote the use of EITs at Guantanamo, purporting they were essential for mission accomplishment. Jerry Phifer personally approved the SERE training, with the specific intention of using those tactics on al-Qahtani. Just as the CIA had done, Phifer argued that the detainees possessed critical intelligence that could save lives and that the detainees had sophisticated counterresistance training and were thus able to defeat traditional interrogation practices. No useful intelligence was ever extracted at Guantanamo using these tactics.