Unjustifiable Means

by Mark Fallon

  Phifer currently works for intelligence contractor InCadence on a project for the DIA.

  XXXXXXXX XXXXXXX

  CIA XXXXXX counsel

  XXXXXXX counseled General Dunlavey’s torture architects on the legality of aggressive interrogation in October 2002, helping torture spread from the CIA black sites to Guantanamo. Among the advice XXXXXXX offered about torture laws was, “the language of the statute is written vaguely. . . . Severe physical pain [is] described as anything causing permanent damage to major organs or body parts. Mental torture [is] described as anything leading to permanent, profound damage to the senses or personality. It is subject to perception. If the detainee dies, you’re doing it wrong.”

  At the Senate Armed Services Committee hearing, Michigan senator Carl Levin expressed his own shock at XXXXXXXXX “advice.” “ ‘If the detainee dies, you’re doing it wrong’? How on Earth did we get to the point where a senior US government lawyer would say that whether or not an interrogation technique is torture is ‘subject to perception’ and that if ‘the detainee dies, you’re doing it wrong’?”

  XXXXXXX is currently a member of the Council on Foreign Relations and a senior lawyer in the CIA Office of General Counsel.

  MAJOR GENERAL GEOFFREY MILLER

  First commander of the unified Joint Task Force Guantanamo

  Miller applied for and oversaw the increasingly aggressive torture techniques under his command. In late October 2003 Miller visited Abu Ghraib. During his visit, he insisted the treatment of detainees wasn’t harsh enough and that the prison should be “Gitmo-ized” so detainees could be broken psychologically. In April 2004 Secretary of Defense Rumsfeld picked Miller to become deputy commanding officer for detention operations at Abu Ghraib.

  In 2006, when two soldiers were facing charges for using dogs to intimidate prisoners at Abu Ghraib, Miller was called to testify. Miller asserted his Fifth Amendment right not to incriminate himself. Later that year, Miller retired from the US Army as a major general. At a ceremony in the Pentagon’s Hall of Heroes, the army vice chief of staff presented him with the Distinguished Service Medal for “exceptionally commendable service.” Miller was also praised as an innovator.

  In 2013 Miller was banned from entering the Russian Federation for alleged human rights violations.

  In 2014 two former Guantanamo Bay prisoners asked a French judge to investigate “war crimes and acts of torture inflicted on detainees” at Guantanamo, including issuing a subpoena for Miller. In 2015 the Paris court of appeals approved a request for Miller to appear for questioning. Miller did not respond.

  In 2016 French magistrates again issued a subpoena for Miller to answer questions about his role in the detention and torture of former Guantanamo detainees Mourad Benchellali and Nizar Sassi. Miller did not reply to the summons or appear in court.

  Miller is currently retired.

  DAVE BRANT

  Former director of NCIS

  Brant played an important role in supporting CITF’s attempts to block torture from becoming policy at Guantanamo. He retired from NCIS in 2005 after leading the agency through the attack on the USS Cole and the 9/11 attacks. Brant is currently CEO at the National Law Enforcement Officers Memorial Fund and Executive Director at the National Law Enforcement Museum.

  MIKE GELLES

  NCIS operational psychologist

  Gelles trained interrogators in rapport-based approaches and was actively involved in the early pushback against the abusive tactics embraced by other psychologists. Gelles is the author of the book Insider Threat: Prevention, Detection, Mitigation, and Deterrence. He is currently managing director at Deloitte consulting. For his service to the CITF, Gelles was awarded the US Army Civilian Public Service Award and Medal.

  BOB MCFADDEN

  NCIS special agent

  Arabic speaking and extremely knowledgeable about Al Qaeda hierarchy, Bob trained our team in the Middle Eastern mindset and rapport-based interrogations. Like Mike Gelles, he was awarded the US Army Civilian Public Service Award and Medal for his service to CITF. Bob is currently a senior manager at Deloitte consulting.

  RALPH BLINCOE

  NCIS deputy director

  Blincoe resisted Dunlavey’s attempts to advance torture as policy. In 2010 Blincoe began his second career, as a law enforcement and counterintelligence consultant for both corporate and government clients. He led a yearlong study into the use of the polygraph in the Department of Defense. Blincoe is currently the senior consultant to the Department of Defense Insider Threat Management and Analysis Center (DITMAC), and in this capacity he works closely with Mike Gelles and Bob McFadden, who are also consultants to the project.

  COLONEL STEVE KLEINMAN

  Air force intelligence officer and former CIA agent

  Kleinman reported and refused to participate in abusive interrogation in Iraq. He has testified before congressional hearings and continues to work closely with behavioral scientists on interrogation-related research.

  Kleinman was a founding member and is the current chair of the High-Value Detainee Interrogation Group (HIG) research committee, succeeding me in that position. He also serves on the executive committee for the International Investigative Interviewing Research Group. Kleinman is an active spokesman against torture on behalf of Human Rights First and was named by that organization to the list of Nine Heroes Who Stood Up Against Torture.

  Kleinman retired from the US Air Force in March 2015.

  SERGEANT JOSEPH DARBY

  Whistle-blower who gave a CD with images of abuse at Abu Ghraib to army CID

  Darby was promised anonymity by army CID, but his cover was publicly blown when Defense Secretary Rumsfeld mentioned him by name on national television. Darby faced a mixed reaction from the other members of his unit. After receiving death threats, he was evacuated from Iraq under armed guard and held in protective custody. His wife also faced persecution at home, including threats to her husband and graffiti on her property. After being released from protective custody, Darby and his wife relocated to an undisclosed town.

  In 2004, Darby was selected as one of three ABC News People of the Year. He also received a John F. Kennedy Profile in Courage Award in 2005.

  ARMY COLONEL LOUIS “MORGAN” BANKS

  SERE psychologist at Fort Bragg who provided training for XXXX XXXX, Paul Burney, and others from Guantanamo Bay in 2002

  The training Banks provided became instrumental in developing the three categories of interrogation tactics used on detainees at Gitmo. General Miller wrote that Banks later came to Guantanamo to conduct an “assessment visit” on the Battle Lab and that he had provided “very valuable insights.” Banks also spent four months in 2001–2002 at Bagram, the airbase in Afghanistan where detainees were—often brutally—processed for shipment to Guantanamo.

  As of this writing, Morgan Banks still holds the contract to instruct Behavioral Science Consultation Team psychologists at the Army Intelligence Center in Fort Huachuca, Arizona.

  COLONEL LARRY JAMES

  Army psychologist

  James became personally involved in the spread of, and medical justification for, torture at both Guantanamo and Abu Ghraib. James recommended his former protégé, XXXX XXXX, for General Dunlavey’s Behavioral Science Consultation Team. He later arranged for XXXX to meet Morgan Banks, who set up the SERE-based interrogation training sessions. In 2003 James became the chief psychologist for Guantanamo’s interrogation team. In 2004 he became director of the behavioral science unit at Abu Ghraib before moving back to Guantanamo in 2007.

  In 2008, James published Fixing Hell, in which he describes an interrogation he watched from behind a one-way mirror at Abu Ghraib: “The prisoner had been forced into pink woman’s panties, lipstick and a wig; the men then pinned the prisoner to the floor in an effort to outfit him with the matching pink nightgown.” In response James “poured a cup of coffee, and watched the episode play out, hoping it would take a better turn and not wanting to interfere withou
t good reason.”

  James is currently the dean of the School of Professional Psychology at Wright State University in Dayton, Ohio, as well as a Council of Representatives member of the American Psychological Association, division of military psychology. Along with Morgan Banks, James remains a strong advocate for the Behavioral Science Consultation Team’s role in interrogations.

  MOHAMMED AL-QAHTANI

  Alleged twentieth 9/11 hijacker and inmate at Guantanamo

  Al-Qahtani was the first test case for SERE-based interrogation techniques at Gitmo. He was interrogated and tortured for fifty days in the Guantanamo Battle Lab between November 2002 and January 2003. He was further held in an isolation cell until April 2003. In an attempt to gain control over him, interrogators subjected al-Qahtani to sexual abuse, beatings, temperature extremes, and humiliations based on religious and cultural beliefs.

  Attempts to bring charges against al-Qahtani have failed. In early 2008 charges were entered only to be dropped that May. Al-Qahtani was recharged in November 2008. Two months later, on January 14, 2009, Judge Susan Crawford, the convening authority for military commissions, publicly acknowledged al-Qahtani would not be referred to trial due to his torture. “We tortured Qahtani,” Crawford said. “His treatment met the legal definition of torture. And that’s why I did not refer the case.” It was the first time the Bush administration had admitted to torture; the admission came one week before a new president was sworn in.

  Soon after taking office, President Obama ordered the closure of Guantanamo Bay. Al-Qahtani was one of seventy-one individuals who fell into a strange legal limbo. Although it was unlikely the government could win a trial against him, he was still considered too dangerous to release. Obama set up a periodic reviews board, representing various US national security agencies, to review the information available on this category of detainee. Al-Qahtani was denied approval for transfer on July 18, 2016. He has been held at Guantanamo for more than fifteen years.

  MOHAMEDOU OULD SLAHI

  Mauritanian, suspected Al Qaeda member, inmate at Guantanamo

  Slahi became the second Guantanamo prisoner slated for the same kind of abusive interrogation program as al-Qahtani. Under General Miller’s command, Slahi was beaten, sexually abused, and subjected to a mock execution, repeated water dousing, and temperature extremes.

  Slahi learned English in prison, and in 2015, Guantanamo Diary, a handwritten diary of his treatment at the hands of his American captors, was released. The book became an international bestseller, although Slahi was not allowed to have a copy.

  In July 2016 a periodic review board concluded that Slahi had never posed a “continuing significant threat to the security of the United States.” His almost fourteen years in detention were based more on a fear that he would reveal his treatment at Guantanamo. On October 17, 2016, Slahi was released and returned to Mauritania.

  MOHAMMED JAWAD

  Teenage detainee at Guantanamo

  Following an abusive interrogation by Afghani authorities, Jawad confessed to throwing a grenade at US troops and was transferred to Gitmo. After showing signs of depression and hallucinations, Jawad was targeted for extreme treatment by psychologist Diane Zierhoffer, including complete isolation and being moved from his cell an average of every three hours for two weeks. Jawad attempted suicide on Christmas Day 2003.

  During Jawad’s military commission proceedings in August 2008, his defense counsel, USAF Major David Frakt, argued that the US started “down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of ‘the ends justify the means,’ before plummeting further into the bleak underworld of barbarism and cruelty, of ‘anything goes,’ of torture.”

  On July 30, 2009, the US district court for the District of Columbia ordered Jawad’s release. The next day, the Office of Military Commissions dismissed the charges against him. On August 24, 2009, after six years, Jawad was released from custody at Guantanamo and returned to Afghanistan.

  A few months after his release, Jawad was interviewed by the English-language United Arab Emirates–based newspaper the National. Asked about the war in his native Kabul that had heightened while he was away, Jawad answered, “The situation will get worse because it’s impossible to finish fighting with fighting. It’s impossible to clean blood with blood.”

  GUL RAHMAN

  Afghan detainee

  On March 28, 2010, the Associated Press identified Rahman as the CIA prisoner who had frozen to death eight years earlier while being held at a secret XXXXXXXXXXXX detention facility XXXXXXXXXX XXXX XXX. Rahman had been rounded up with XXXX XXXXX XXXXXXXXX XXXXXXXXX XXXXXX XX XXXXXXX XXX XXXXX XXXX XX XXXXXXXXX XXXXXX X XXXXX XXXXXXXXXXXX XXXXXXXXXX XXXXX XX XXX XXXX XXXX XXXX XXXXX, Rahman is said to have been violently uncooperative, at one point even throwing a latrine bucket at his captors. For that, his hands were shackled over his head.

  XXXXX XXXXX XXXXXX XX XXXXXXXX XX, Rahman was in his unheated cell, stripped naked from the waist down, when the temperature dropped to near freezing. Within hours, he was dead. A CIA on-site medic determined the cause of death was hypothermia.

  XXX XXXXXXXX XXXXXX XXXXXXX XXXXX XXX XXXXXX XXXXXXXX XXXXXXX XXX XXXXXXX XXXXX XXX XXXXXXXXX XXX XXXXXXX XX XXXXXXX XXXXXXXXXX XXXX XXXX XXX X XXXXXXXX XXXXX XXXXXX XXXXX XX XXXXXXX XXXXXXX XXXXX XXXXXXXXX XX XXXXX XXXXXX XX X XXXXXXX XXX XXXXXXX XXXXXXXXXX In Rahman’s case, the CIA inspector general investigated the death and said those in charge of the interrogation had used “poor judgment” in leaving the prisoner exposed to harsh weather. When the case rose to the attention of Kyle Foggo, then the Agency’s third-ranking officer, he refused to take any action against Rahman’s captors. Two federal prosecutors who also looked into his death concluded that no CIA officer involved in the incident had meant to intentionally harm Rahman. Rahman’s body was never returned to his family for burial. No one at the CIA has ever been held responsible.

  JOHN WALKER LINDH

  US citizen captured in November 2001 during the US invasion of Afghanistan

  Lindh, known in the media as the American Taliban, was held at Camp Rhino before being transported to the USS Peleliu in December 2001. His secret shipboard detention was challenged by the ACLU.

  On February 5, 2002, Lindh was indicted by a grand jury for ten charges, including conspiracy to murder American citizens and supporting terrorist organizations. He pleaded not guilty to all charges. Proceeding with the case would have allowed Lindh to testify in public about any abuse he had suffered during interrogation. On July 15, 2002, Lindh accepted a plea bargain carrying a twenty-year term. He could be released as early as 2019.

  JAMES MITCHELL

  JOHN “BRUCE” JESSEN

  SERE psychologists turned CIA contractors who were the co-fathers of enhanced interrogation techniques

  Mitchell and Jessen’s paper “Recognizing and Developing Countermeasures to Al-Qa’ida Resistance to Interrogation Techniques: A Resistance Training Perspective” introduced the concept of using abusive SERE techniques to overcome reputed Al Qaeda interrogation resistance training. These included an attention grasp, shoving a detainee into a wall, and grabbing and slapping a detainee. The psychologists recommended a detainee be placed in a cramped and dark confinement box and that insects could be placed inside the boxes to exploit any potential phobias. Mitchell and Jessen’s work was the cornerstone of the tactics used by CIA interrogators at black sites.

  Some of the CIA officers observing the use of these EITs during the interrogation of Al Qaeda suspect Abu Zubaydah were disturbed by them. CIA correspondence describes them as being “profoundly affected . . . some to the point of tears and choking up.” Two of three of the CIA personnel there wanted to be transferred from the facility if the torture of Zubaydah continued. Those involved reported Zubaydah “was unable to effectively communicate” and that he “cried,” “begged,” and “whimpered” due to his torment.

  When asked to evaluate their program’s effectiveness, Mitchell Je
ssen & Associates reported that the manner in which Zubaydah was tortured served “as a template for future interrogations of high-value captives.”

  In November 2016 Mitchell’s book Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America was released.

  There have been numerous calls for investigation and prosecution of Mitchell and Jessen, including a 2014 editorial in the New York Times and a 2015 request by Human Rights Watch. In 2015 the American Civil Liberties Union filed a lawsuit against Mitchell and Jessen.

  Mitchell is retired and lives in a wealthy suburb of Tampa, Florida.

  Bruce Jessen is retired and lives in a $1.5 million house outside Spokane, Washington.

  AMERICAN PSYCHOLOGICAL ASSOCIATION

  Largest professional organization for psychologists in the United States

  The APA has repeatedly refused calls for its members involved in abusive interrogations to be held accountable. The APA’s role in promoting torture as an interrogation tactic was revealed in the fall of 2014 by New York Times reporter James Risen’s book Pay Any Price: Greed, Power and Endless War. Risen focused on the billions being spent by the military and intelligence agencies on APA-member contractors, as well as James Mitchell and Bruce Jessen’s role in justifying torture.