Haynes: How our country deals with this unprecedented threat. This is as it should be. The end of this can only come with history’s judgment of how our Administration served in protecting America. We know that America’s enemies are relentless. I look forward to watching our nation’s leaders to advancing our nation’s security and freedom.

[Alright, Levin, just like you did to Ickes.]

Levin: In July 2002, Shiffrin, contacted JPRA asked about SERE techniques. Did you ask him to obtain info on SERE.

Haynes: Six years ago. Memory not perfect. What I remember is a govt wide concern about poss of another terrorist attack. A widespread belief that the people captured in war on terror. [filibuster filibuster 9/11 9/11 9/11] As Chief legal officer I was interested and concerned. I inquired generally about where sources of expertise might be. Shiffrin would have been the person I asked for that kind of info.

Levin: Specifically about SERE.

Haynes Late summer, did get info (refreshed memory form doct).

Levin: Don’t remember about SERE.

Haynes: Not specifically.

Levin: Addington, Gonzales, Yoo, Philbin, and Rizzo. Did this request to Shiffrin come from that group?

Haynes: Six years ago. a long time. I had ten meetings a day. I met with many groups. I met with many lawyers. To key into one particular meeting.

[Does this remind anyone of Scooter Libby’s defense?]

Levin I wasn’t asking that. Do you remember if it came from that group?

Haynes: No sir.

Levin: Tab 2. Do you remember seeing this memo at the time?

Haynes: Not at the time, But I’ve seen it before, and I’ve seen it a long time ago.

Levin: Tab 3. Did you see that? Do you remember whether you saw it?

Haynes: I don’t remember when I saw this.

Levin: Another attachment to Baumgartner’s memo. Tab 4. Did you obtain info from Shiffrin on SERE training. Did you see Egrisseg’s memo?

Haynes: Yes.

Levin: Do you remember whether you saw this memo?

Haynes: I don’t remember when I saw this?

Levin: what would you have done when you got it? Do you remember doing something with it?

Haynes I don’t remember doing something with this. What I recall was the environment I described earlier. I can’t remember what prompted my concern. There may have been some other catalyst.

[missed some]

Haynes: My memory is not great. If I were just to discuss any further I would have to talk about classified info.

Levin Would you remember better if it was a classified session?

Haynes I wouldn’t be able to discuss it. Did I ever discuss SERE techniques with others in the Admin, the answer is yes.

Levin What was the jist of those conversations.

Haynes I couldn’t go into jist without going into classified information. I cannot discuss it further without getting into classified information.

Levin: You say you don’t remember any more clearly than what you said. I don’t know what going into classified session would add.

Graham: Try to put this in context of this puzzle. Goal was better info.

Haynes: Goal was not Gitmo. Goal was to understand what capabilities country had to elicit info from terrorist who attacked and might attack the country.

Graham: the reason was trying to get better infor from HVTs.

Haynes: That would be an objective of people involved in interrogation. Yes sir.

Graham: New programs not on the books that would allow us to get better infor.

Hayes; No I was a senior lawyer, the senior lawyer in the Dept. The detention and questioning of HVDs in war on terror. Also senior member of Admin in inter-agency activities.

Graham. I’m not saying this is wrong. The Bybee memo. The legal analysis about CAT?

Haynes: I believe I am. There have been a lot of names associate..

Graham Were you aware that unless there was major organ failure there was not a violation of CAT?

Haynes: Yes sir.

Graham: were you aware of that before Rummy approved interrogation techniques.

Haynes don’t remember.

Graham: 35 categories.

Haynes: A lot of confusion. When you talk about 35 techniques. Product of working group January 2003 to March 2003. What Rummy approved for interrogation of Qahtani, a decision in November [No December], there were not 35 techniques.

Graham: Qahtani involved use of dogs and nudity.

Haynes: Some conflation. Two of items for Qahtani included clothing and use of phobia. What was approved by SecDef. Widely held understanding of what was in those two categories. Use of dogs not intended to be dogs in interrogation room with detainee. Muzzled dogs in perimeter. Removal of clothing not nudity. You then jumped to dogs in room and naked people.

[Removal of clothing is not nudity, that’s what we’ve learned today.]

Hanyes: Years after the fact, looking into belatedly disclosed emails that came to light at HQ level 2 years after the fact. Schmitt investigated 20000 interrogations identified less than a handful of problematic interrogations.

Graham: Your testimony is that they were not authorized. That’s my point, that if it did happen it was never authorized by your or Rummy in manner used?

Haynes: yes.

Graham: These techniques mirror SERE program in uncanny way. Where did it come from.

Haynes: People closer to Gitmo than I was. I’ve never seen the 1, 2, 3.

Graham: Who made up the list.

Haynes: I don’t have firsthand knowledge. There’s some documentation that DOD has provided to the committee that talked about how they came up with their list.

Graham: This list you client (Rummy) approved.

Haynes: A subset.

McCaskill: You’ve just said you were the senior lawyer for DOD. Correct? You had a lot of lawyers under you?

Haynes: Over 10000 lawyers in DOD.

McCaskill: You had received legal input about this prior to you presenting this doct for approval by Rummy. Correct?

Haynes: Six years ago. Let me understand your question. I do not recall seeing the memoranda that were in the earlier panel’s testimony. Not to say there wasn’t a lot of anxiety about how to question terrorists. That was present from the moment war began. Law enforcement v. collection of intelligence.

McCaskill: Let me go down that path. Relied on analysis of Beaver.

Haynes Based on my own analysis.

McCaskill Do you have memoranda that you prepared.

Haynes reflected in the memo you have.

McCaskill DOes not cite any legal precedent. Any legal document that you relied on?

Haynes Package that came up with it.

McCaskill No legal opinion other than her legal opinion. Was there any legal opinion that lawyers do based on law and precedent, other than Beaver’s opinion.

Haynes Important that you understand how DOD works. When I put initials on a document, it said I found it legally sufficient. Package is important. Reflects where it comes from, but also understanding of judgment employed by people proposing it. Sec has less time than I have. Chairman initials things.

McCaskill Lot of lawyers, experts in military law, saying red light red light, only document was Beaver’s anlaysis. I’m trying to get you to acknowledge that that is what you used.

Haynes: That, Dunleavy (his opinion),

McCaskill He referred on her opinion

Haynes He said I believe these are legal. General Hill also said he believed all of Cat one and two were legal. Those three layers coming up, together with my discussions with my staff and Dalton’s staff.

McCaskill: Dunleavy not a lawyer, is he? [Judge] Hill not a lawyer?

Haynes Beaver’s difficulty with Staff JAG at next higher level, news to me.

McCaskill: The idea of getting intell is getting reliable info, it appears to me that the most experienced people in the country are in fact law enforcement, they understand interrogation techniques much better. We have to get really solid good information.

Haynes: Very interesting proposition. I agree law enforcement people do good work. Lots of people at Gitmo who were frustrated, including FBI. I’m not saying favoring one over another. Existence of two conflicting philosophical propositions. Law enforcement to protect us. Because of our constitutional system, we have a very generous set of procedural underpinings, that law

McCaskill: I’m talking about what’s effective. What has been talked about is not just a matter of legal analysis. People will tell you what you want to hear.

Haynes: No one has advocated torture. I appreciate your profession that effective interrogation is what we’re after. My job is to talk about what law permits and what it prohibits. Did I know there were people who had problems with the approaches. I believe it sprang from those things. In my experience as an observer, is that it is case by case person by person, and type of information of what is the best approach.

Inhofe: All the things we did to stop plots.

Haynes: When this proposal came up, Fall 2002, DOD had discovered months after he arrived that Qahtani was 20th hijacker. [9/11 9/11 9/11–hey, Haynes, has the anthrax case been solved yet???]

Inhofe: Did you agree with all new techniques. You’re led to believe that there’s a lot of torture. A lot of political use. Abu Ghraib. Were techniques used at Abu Ghraib endorsed by Rummy?

Haynes: No. Not endorsed or approved by anyone above Centcom. Most people think about abuses that were not interrogation. These incidents have been investigated greater than any other incident. So there is a lot of data. It was just flatout abuse by people not being supervised.

[I don’t often hate people. But I’m feeling that emotion right now.]

Inhofe: Army started taking steps and let me give you a blow job. [Oh wait, that’s not what he said?]

Reed; You were aware of JAG memos concerned about these techniques.

Haynes You’re referring to a group of memoranda, shown them about a month ago, first time I saw those memoranda. I don’t want anyone to walk away to suggest I didn’t know about concerns about DOD interrogate prisoners. That’s what I was, we had a long exchange, about chronic debate about how to interrogate.

Reed; Senior COunsel to JCS, commenting on this Beaver memo. They prepared written statements about all these techniques, opinion of at least 4 legal officers and law enforcement officers. You were aware of those but weren’t curious enough to be asked to read them.

Haynes I don’t recall being aware of memoranda.

Reed; You’re trying to make a judgment about GC, UCMJ, you’re aware of a debate, but you have not–forget legal obligation–but you have no curiosity to find out what was going on. Your fundamental responsibility was to render a legal responsibility to DOD. Your obligation was to give him the best legal opinion.

Reed: Where in your memorandum is it restricted to Qahtani?

Haynes: youc can read my memorandum.

Reed: Your statement that this was about Qahtani, but that’s not the opinion rendered.

Haynes: We don’t do these things in a vacuum.

Reed; You did it in a vacuum. You communicated to Myers that she should cease her response to these concerns.

Haynes: I accept her representation. I looked at this hard. You’re a West Point grad. You know how Pentagon works. This was one decision, it came in context that I described a moment ago. My client needed a recommendation. It had been sitting in HQ for a month. There are 10000 lawyers in DOD. There has been a portrayal in the press as if the military lawyers all objected, there are military lawyers whose job it is to counsel this chain of command. Southcom not as involved as he might have been Looked at it carefully, looked at it under the circumstances. My job is not just to say no, but to say where is the area of discretion for the client.

Reed: What did you rely upon?

Haynes: US Constitution, we believed, did not apply. GC did not apply. CAT would apply, non self-executing treaty. Implementation signed by President, prohibition reflected in that applied. President’s order to treat would apply. UMCJ would apply to some degree.

Reed; If UMCJ applied, do you agree with Beaver’s analysis that it would be a violation to poke or push.

Haynes: No. I wrote the memorandum before you.

Reed; how did you communicate decision to Southcom and GItmo?

Haynes: As the lawyer I was the advisor, SecDef made the decision. Normal transmittal through Joint Staff.

Reed; You don’t know how it was commnuicated.

Haynes: I don’t know.

Reed: Dalton went to some length to say that her opinion was based on the conditions. Where is that communicated in your memo. If those conditions were central to the legality of your advice, don’t you have an obligation to communicate this to him? Shouldn’t you also communicate to him that his concurrence was contigent on some conditions?

Haynes: All understood that those conditions apply.

Reed; Can you list them?

Haynes: You’ve got more documents than I’ve ever seen on this. There were plans that had to be developed with each detainee. [filibuster filibuster filibuster]

Reed; Where does it reference those conditions.

Haynes: Not to mention the training that that question maligns.

Reed; I reject that. You empowered them to ignore the UMCJ. The only thing you sent them was these techniques apply. Don’t go around claiming you protect the integrity of the military. You degrade the integrity of the US military.

Sessions. blahblah blah blah blah My job is to be your friend and give you time to prepare for the next Democrat.

Graham: Before Rummy signed off on the memo, the FBI witnessed abusive conduct. Is it your testimony that neither Rummy or you approved such techniques for the 20th hijacker.

Haynes: SecDef had no knowledge, nor did I.

Graham: GC for Navy came to you with concerns before the memo was signed. Did he threaten that if you do not revisit I will draft a memo and go public with this?

Haynes I remember him coming in at least twice, very passionately, and understandably, he had been hearing things, in each case, I reported up the chain, and asked Dalton to look into it.

Graham: His testimony is that he had to release these opinions to the public at large. That had nothing to do with you revisiting that December memo.

Haynes: I don’t remember the edge to these discussions.

Graham when was memo repealed and replaced?

Haynes 12 January recision.

Graham: What happened in that intervening period to recommend to him that we need to take this off the table.

Haynes I had my own misgivings. It’s hard to identify a single thing.

Graham: It wasn’t the threat.

Haynes I don’t recall him doing that. I want to be responsive.

Graham: that’s a pretty quick turnaround, from Dcember 2 to January 12. Something earthshattering had to occur.

Haynes Chronic passion. So many competing concerns.

Graham [going ummhmm in background, doesn’t believe him]:

Haynes: My recollection was.

Graham: No, we’re not going to do that. A group of people did not find out about memo until a year later. Are they correct? There’s so much passion about this? You can’t verify that they working group didn’t get to look at the final product? Where did all the passion go?

Haynes: My passion was to get the SecDef good legal adivce.

Graham: these people read in paper that you found a new way of doing things.

Haynes: The entire DOD felt like working group led to very good result.

Graham. The working group was formed bc you got criticism from Mora. The working group never got to see the final product. Back to December 2 memo. One Cat 3 technique was waterboarding. DO you think that’s legal? Would it violate UMCJ to grab someone and put a cloth over their face to simulate drowning?

Haynes: Now,yes.

Graham: You don’t think it was illegal then?

Haynes: not at that point.

Graham: I guess thing I’m left with, attitude we may be attacked law took on impediment to our safety, not our strength. A lot of people saw the laws made us more at risk. When the law in this war is a strength, not a weakness. Clear that memo never limited to one person. Clear that the techniques migrated all over the military. One of the great tragedies that we allowed our enemies to take advantage of this situation. For a period of time we could not have done more to help them.

Levin: October 2002.

Levin: Were you aware at the time of these objections.

Haynes: I don’t recall objections of this nature.

Levin: were you aware of Army’s Intl Law Div of their objections?

Haynes: (After some stalling) I don’t recall seeing this.

Levin: Air Force.

Haynes: I don’t recall seeing this memorandum. I’ve told the panel I knew there were concerns. I don’t recall these.

Levin: Marine Corps response.

Haynes: I don’t recall seeing this document.

Levin: Do you recall Eleana Davidson say further assessment needed?

Haynes I don’t recall, but we did further assessing, so maybe she said that at the beginning and maybe we did it.

Levin: Before SecDef, services lawyers let your office know that they had serious problems. You vaguely remember, but you never took the time to ask for those documents. Yet when you were asked, did you pay scrupulous attention to the law, you ignored those memos taht came to your office and then you cut off the review that you requested and Dalton was conducting. You ignored the lawyers and then when there was a review you send word that you wanted that review stopped. That is stymying consideration of one of the most significant legal decisions that this country made. The errors made in those opinions have cost this country tremendous damage. Do you agree that you cut off the DAlton review in the middle.

Haynes: What I heard her say was she restricted the broad review.

Levin: No, she said you told her to stop the broad review. She said it had never happened before never knows of it happening afterwards.

Haynes: I don’t remember it. That is stymying a review of the law to make sure that what we’re doing comports with the law.

Levin Then you have the audacity to say that there are two group sin conflict, one the law enforcement people, another those who want info in interrogation. There’s a third group, the lawyers to the military. You ignored them, you don’t remember seeing them, and then when taht broad review was taking place, you stymied that review. How can you say there are only two groups? Your office was definitely sent those memos, your staff had discussions with the people who sent those memos. Why aren’t they in your equation.

Haynes Vigorous disagreement of your characterization. I did not ignore concerns, I addressed concerns. There has to be a decision-maker, when you have multiple different opinions, I made a decision it was my practice to be as open as I could. There are physical constraints. I’ve never denied that there were disagreements, legal disagreements. If I didn’t see them I didn’t ignore them. I didn’t know they existed. I don’t recall seeing them and I don’t recall knowing about the memoranda. I probably saw millions and millions and millions of pages of information FOr you to suggest that because I didn’t see every single piece of paper.

Levin: Have you ever expressed publicly that you had misgivings about that opinion.

Haynes: I don’t know.

Levin: You said there’re two groups that caused this tension. The military services who told your office in memo after memo they wanted much more analysis, that came to your office, concerns that their people might be subject to criminal action.

Haynes: that’s a misperception of the reality that I experienced. If you think the two extraordinarily gifted lawyers up here before. It talked to her.

Levin She testified you stopped the review in the middle.

Haynes A limited degree of time and high degree of urgency. Alien enemy combatants outside of geneva conventions.

Sessions: blah blah blah blah. I’d love to rub your penis if I could tell the difference between 10 and 11.

Sessions: And to demonstrate what a piss poor lawyer you are, I’m even going to make myself look smart by pointing out the stuff you couldn’t find on your own to defend yourself.

Levin: Focus of our investigation is where they all began. General Fay stated in his report that a Jan 24 03 memo called an interrogation techniques memo, that memo recommended removal of clothing, and it discussed "exploiting the Arab fear of dogs." From Afghanistan how did they get to Iraq. DOD IG said at the beginning of Iraq war used Jan 03 SOP which had been developed for ops in Afghanistan, that had been influenced by counter resistance memo approved by Rummy on December 2. Included techniques such as sleep deprivation stress positions, and controlled fear, muzzled dogs. And then General Fay said removal of clothing was imported to Abu Ghrab from Afghanistan and Gitmo. When I asked Fay at a hearing whether the policy adopted by Rummy on December 2, 2002, he said "yes." Now. My questoin. Did you ever discuss the SERE techniques with Dunleavy.

Haynes: I don’t recall. I may have, I don’t recall.

Levin: Bybee memo. Did you read it?

Haynes: I have read it.  I don’t know when I first read that. I don’t remember when I read that. I have told you what I relied on.

Levin Did you tell our staff that it’s likely you read it before November 2002. This is a memo that would be binding on the entire executive branch.

Haynes: Sure.

Levin: Why would you not have read that before recommending a decision to SecDef.

Haynes: It was addressed to someone else.

Levin So you may have.

Haynes There were a lot of things going on.

Levin Where you aware of the contents of it.

Haynes I just don’t remember.

Sessions. blah blah blah blah.  

Graham: I understand from Schmitt-Furlow report that a dog was used in interrogation.

Beaver: I was not aware of it.

Graham when you said this didn’t happen at Gitmo, you’re not right.

Beaver: What was approved did not happen.

Graham Who did this?

Beaver: I don’t know.

Graham it was part of interrogation plan. Also strip-searched in front of female personnel. Based on this report we know in at least one interrogation dogs were used a person was stripped.

Beaver I haven’t read it, but I take your word for it.

Graham Mora, you spoke up, you continued to speak up, other lawyers continued to speak up, some of your criticism was listened to, they were ratcheted down.

Mora: I’m not sure

Graham They reevaluated the techniques, and a new group came up, Dalton. You were never involved in any final approval of new techniques.

Mora: that’s correct. To my knowledge, I thought draft was never finalized, not part of final approval.

Graham Dalton, Do you ever remember Miller going to Iraq?

Beaver: asked me to travel with him.

Graham: Sanchez said we need better intell. Was that the nature of the visit?

Beaver: A number of problems.

Graham: Any discussion of Muslims afraid of dogs? What did you tell them to do?

Beaver: I was appalled of detainees being held at core detainee area. I was disgusted that they were held like that.

Graham Do you think it’s an accident that the techniques: stripping in front of female personnel and dogs?

Beaver I was surprised to see Col Wood in Iraq, she had been in charge in Afghanistan when two detainees had died. I went up the chain, I knew in a Geneva setting it could be a problem.

Levin: You’ve heard that what happened at Gitmo did not constitute abuse.

Mora: Abuse occurred and potentially torture.

Levin: What was authorized, do you believe taht constitued abuse? Dogs? Nudity?

Mora: not under geneva.

Levin: Did not want service’s critical comments disseminated?

Dalton: Haynes did not want broad-based discussions of these issues.

Levin: did you read those memoranda objecting. those memoranda came before the decision of SecDef. This is one of the things that is new this morning. The protests came before and after 12/2/2002 memorandum. When that task force was appointed, prior to 12/2/02 those category 2 and some 3 techniques would be authorized, the JAG officers objected.

Dalton: Not all JAG.

Levin: From the services.

Dalton While they raised serious concerns. They suggested further legal and policy review.

Levin And you were undertaking until you were stopped.

Dalton Broad-based until you were stopped. I took it upon myself.

Levin: Weren’t you asked to give areview?

Dalton That was part of my job.

Levin Concerns with most of category 2. Were you troubled when you read that?

Dalton [nothing]

Levin: Were you troubled when the Chief of Army’s Intl Law div crosses line of humane treatment. You were being requested to approve something that in the judgment of that Chief would cross the line.

Dalton: Those were made without complete analysis being done. It was a concern. My own office had concerns. However, I felt we owed it to combatant commander to do a full review. Initial responses indicated there were concerns.

Levin You were stopped right in the middle of the review.

Dalton Of coordinating with the agencies.

Levin You were stopped during that review. Why’s that so hard to say "yes" if you were?

Dalton I want to be clear that what I was stopped from doing was engaging in a broad and open discussion.

Levin You were stopped from doing what you thought was appropriate from doing.

Dalton I was stopped from conducting the review.

Levin That you thought was appropriate?

Dalton Yes sir.

Levin What was the purpose of the dog? It wasn’t to scare?

Beaver: From perspective it was explained to me that purpose it could be used as perimeter security and if that unsettled detainee, it would serve a dual purpose. I know you don’t take dogs into detention cell. I was assured that that would not happen. I found out it happened. I was unaware of that at the time.

Levin: Was the purpose to keep the detainee unsettled? To induce stress?

Beaver: it may have.

Levin: Using detainees individual phobias such as fear of dogs to induce stress. That was the purpose stated in the request.

Beaver: I’m not disagreeing

Levin Dalton, did Haynes know services had real problems?

Dalton: those concerns were addressed without benefit of knowing what the safeguards would be. My staff briefed his staff.

McCaskill. Before you wrote your legal opinion you attended a meeting where couter-resistance was discussed. Do you remember that meeting?

Beaver: I started them in late August. They were my meetings. Brainstorming sessions. That there would be a more open discussion. That was a regularly scheduled meeting that Fredman who happened to come down that day, it wasn’t held for him.

McCaskill So CIA lawyer just invited in for meeting already planned. I need to know whether you think this recollection is flat wrong and not true. Attributed to you: We need to curb the harsher operations when Red Cross around. We must have support of DOD.

Beaver: Mr Pryor asked a similar question. I do not recall anything I said. What I believe I would have said is that when you are conducting an operation, you can’t disrupt an interrogation for this purpose.

McCaskill That’s not what this said.

Beaver I dont’ think I would have said something in that manner. They came in six week cycles. They might be there for six weeks. When they’re not there, you would do your more aggressive interrogation.

McCaskill Why would there be a problem? Why would you delineate harsh?

Beaver I’m just using it in context of this conversation. There were many engagements like that.

McCaskill, written by CID of DOD. These are criminal investigators who are trained in taking accurate notes.

Beaver I can’t recall what I said in a meeting.

McCaskill Part of their training is note-taking. Fredman said DOJ has provided much guidance. CIA not held to same rules. In past, DOD has moved them away from attention from ICRC. Upon questioning the DOD said Detainees merited no status under convention. Do you recall that?

Beaver: I don’t recall with any kind of specificity. Qahatni, which the law enforcement folks had custody of him, FBI and CITF did not allow ICRC to speak to him. ICRC was allowed to see him in brig. In July August, this particular detainee had been of interest to law enforcement and intelligence community. I can’t attribute anything Fredman said. DOD had different rules about ICRC.

McCaskill Chief interrogation control, Becker, videotapes subject to to much scrutiny in court.

McCaskil Law enforcement choose not to participate. It’s more ethical and moral as opposed to legal. Fredman; Videotaping of even totally legal techniques will look ugly. The implication is that there are illegal.

Beaver What he is saying is even if you have a legal custodial interrogation can make people uncomfortable. Video taping unnecessary. Close circuit TVs, watch 24/7. When you’ve never witnessed interrogation.

[from audience I object to this line of questioning." Defense counsel for Beaver. ]

Defense counsel: I object to my client being asked about what someone else said.

McCaskill I was asking you if these things were said in front of you, as the staff JAG, attributing some statements to you. Do you recall those statements being made. Fredman said this. In your capacity as the JAG at Gitmo Bay.

Beaver: non-attribution purposes so people could speak their minds and not worry about it being held against them. I wanted people to have a good collegial discussion. The law enforcement people were very unhappy with me. I thought it better to do in the light of day.

McCaskill. I think it important that law enforcement people were there, Like me, they have seen many many many interrogations. I think it important that they took notes. I’d like to read into the record. "This is the stuff Congressional hearings are made of. … seems to stretch beyond the bounds … would shock the conscience of this, someone needs to be considering how history will look back at this."

Beaver I invited them to put in writing so we could put it through to Miller, not a single person except in one occasion, came to me and said there’s a violation of the law. They never came to me and said there’s a violation of the law. If they felt the way at the time, they could have given me the same consideration I gave them."

Levin: Tab 11, a letter from CI taskforce, giving an assessment.

Beaver It was never shared with me. They never shared it in writing with me. Told by attorney at OGC that their objections were policy, not legal.

Levin You did not mean to suggest they never put it in writing did you? You were asked your opinion, they then were asked of their opinion. Dated November 4, a month prior to SecDef signing his memo.

Levin: Did you work to develop SOP?

Beaver: No, done by folks at interrogation cell. I had nothing to do with that.

Levin were you familiar with it?

Beaver: I recall seeing it. Some of the personnel on the intelligence side were preparing an SOP, so they wouldn’t be behind the timeline.

Levin Did you have conversations with them?

Beaver I told them they needed a SOP. What chain of command was.

Levin You never saw any of the drafts.

Beaver I can’t say with certainty.

Levin If you can read on page 2. Basis used is SERE. Is it possible you saw this?

Beaver: Never left Intell sector. Miller didn’t see it. Didn’t ever receive serious consideration.

Levin: Did you participate in drafting?

Beaver: Gave them legal piece of it. List of things from my briefing. Not this SOP. One that listed the procedures approved.

Levin Have you ever been asked to stop analyzing something that came up for your review.

Dalton Previous incident where I was told I could not attend inter-agency discussions.

Levin Let me asked before–have you ever been asked to stop analyzing something that came up for your review.

Dalton No.

Levin Two questions, Mora. You heard my description of your activities that came in January. Was that accurate. When Sec approved on December 2, he was handed hand-written note that said why is standing limited to 4 hours? What impact might that have?

Mora: I was shocked. Even though it may have been intended jocularly, it might invite people to go beyond limits.

Levin You said allies might stop supporting combat operations. That would put more troops in harms way. Do you have specific example?

Mora: One specific one, but I’d prefer to discuss in closed session.

Levin Meetings about Yoo memo.

Mora: One meeting. I felt memo was a travesty of applicable law. Very dangerous led into what we see here.

Levin You were not told of working group’s final product. How did final memo influence working group report.

Mora It was dispositive of all issues in working group memo.

Graham I can see why this hearing is important.  It’s very hard to interpret this.  Was McCain Detinee Treatment Act important?

Mora Yes. 

Here are the documents released by the committee.

Are here are some links to Spencer Ackerman’s work on this: here, here, here, and here.

McCaskill: We disrespect men and women who serve if we don’t have this hearing. Did you review Beaver opinion?

Shiffrin:No

McCaskill: If you came across phrase, "immnuity in advance," would it cause you pause?

Shiffrin: yes.

McCaskill: Any lawyer would ask what planet are we on? That would be a crime!

McCaskill: In fact, as I just said, if someone visits with someone about committing a crime and I’ll give you immunity, wouldn’t they be guilty of a crime.

Shiffrin: they could be, Senator.

McCaskill: This legal memorandum, basis for SOD to sick dogs on them, contained a legal theory called immunity in advance, and no one, your boss got this, he is a trained prosecutor. Has he had experience as a prosecutor, experience in a court room. It is mindboggling to me that no one would hear the raging offense to rule of law.

McCaskill: what are the names of people who gave you impression we needed more aggressive techniques. WHo told you.

Shiffrin: Not what I said. Discussoin of progress, lack of progress, obtaining actionable intelligence out of detainees. Chaired by Haynes, 5-6 other lawyers.

McCaskill: Who was in the room?

Shiffrin: frustration, didn’t say we needed to change techniques. Whit Cobb, DGCIA Charles Allen, Marine worked in Counsel office, Bill Lietsow, there was a lawyer now my successor, Eleana Davidson, responsible for detainee matters. Those were the lawyers would have been present.

McCaskill: ever present after Haynes recommended approval of these techniques?

Shiffrin: Met with Haynes every day. I forget the date.

McCaskill: I can give the date. November 27, 2002, Approved December 2, 2002.

Shiffrin: Vague recollection that memorandum approved.

McCaskill: Aware memorandum existed. I think you’re a good lawyer care about your country. We’re trying to figure out who decided. Did this come from David Addington and Cheney, Gonzales’ shop? Chertoff. There are people still in responsibility in our govt. No one is willing to say where this came from. This move towards imploding the traditions of this country.

Shiffrin: The GC office often operated in compartmentalized fashion. Not unusual to get request about SERE and I’d find out that someone else was doing the same thing, or that it was going to be used at Gitmo, never be part of discussion about what they were going to do.

Martinez: Context. Mistakes have harmed our nation. No further questions.

Levin: Baumgartner said you requested physical pressures.

Shiffrin: Memo from GC.

Levin: Baumgartner. Do you stick to your testimony?

Shiffrin: Refers to meeting with OSD GC. I never met Baumgartner before. To extent these memos responsive to requests at meeting, I didn’t attend meeting.

Levin: Baumgartner, phone conversation. You deny that you used term physical pressures, he sticks by his testimony. Did he ever use the term carrots?

Shiffrin: I recall conversation with Dunleavy.

Levin: You testified you never discussed using these tactics offensively. You’re aware that export of those not way program designed.

Baumgartner: yes

Levin: Major General Solagan is? JPRA higher HQ, right? Memo I used, offensive purposes lies outside responsibilty of JPRA.

Baumgartner: Use of our guys in offensive manner not what we were about. We were about training.

Levin: when misused in that way, has anyone been held accountable for misuse of program?

Baumgartner: No

Levin: are you aware that SERE techniques went to Iraq. Instructors went to Iraq at request of special mission unit taskforce. JPRA provided assistance to interrogation operations.

Baumgartner: I was retired by then. I don’t have a comment. I was not part of decision-making process.

Levin: Do you disagree with Solagan on question on whether or not use of interrogation knowledge lies out side of JPRA.

Baumgartner: I didn’t say that.

Levin Dep Comm

Levin: Gates said the other day, when he fired two Air Force people, during his tenure, accountability much reach all the way up chain of commend. Accountability must reach beyond Colonels. And that hasn’t happened.

Warner: Was SERE info shared with anyone else, DIA, and another recipient, classified nature. I wish to push further. This question was the information you gathered, in what form did you convey that info.

Baumgartner: Briefing and document.

Warner: Do we have that document?

Levin: Testimony that is classified. We got 38,000 documents this week, they sure are about a year late.

Warner: did JPRA provide training?

Baumgartner: instructions, not training. Emails I’ve seen say instruction and exploitation training.

Warner: was that sharing an issue that your organization sought higher authority to approve.

Baumgartner: Went to flag level. JPRA into Chief of Staff’s office.

Warner: 26 July 02,3 memo for OSD GC. To answer follow-on questions July 25 meeting. Were you familiar with that meeting?

Baum: Phone conversations.

Warner: 2-3 telephone conversations.

Holy Joe: Ogrisseg: Training we’re giving personnel alters with enemy or purpose of interrogation?

Ogrisseg: Yes, changes with the enemy.

Holy Joe: Does it change with the aim of the torture. Senator McCain was to sign a confession for propaganda purposes. Not for eliciting information, which is the purpose here. Current enemy likely to put captive on TV and kill him.

Ogrisseg: Way that people processed before. One way that it can be exploited by enemy. Terrorist network may be to make a statement. Can’t determine which actions the students are going to make.

Holy Joe: Islamist extremists, theological extremists, since you were knew they were not for training, natural to assume to use against detainees. Any info that was based on unique cultural background of Islamist terrorists?

Ogrisseg: Are you asking me?

BAumgartner: NO.

Holy Joe; Use of dogs. Muslims have special phobia of dogs. Did you deal with that in submission to GC.

Baumgartner: no.

Holy Joe: Shiffrin? In trying to find additional info to assist in interrogations, did you ever reach out for tactics or info based on unique cultural characteristics or phobias or fears?

Shiffirn: No, my request was just send me everything you have.

Holy Joe: Any material dealth with unique phobias?

Shiffirn: Everything I got was historical.

Levin: Shiffrin, reverse engineer SERE techniques. You said two minutes ago, you didn’t ask about techniques. Ten seconds ago I asked you this question.

Shiffrin: My primary purpose was to find all the info. I intuited we could reverse engineer a SERE technique.

Levin: I see, you believed that might be one of the purposes.

Levin: You said that torture increases resistence and is not reliable?

Ogrisseg: Yes

Levin: Sleep deprivation, disorientation, even one night affects language attention. memory function can degrade captives ability to cope with challenges

Ogrisseg: I don’t believe I wrote that section. I need more context on what sleep deprivation means. I would agree that prolonged periods of sleep deprivation would be bad. We don’t innoculate them to sleep deprivation. We don’t have enough time. We try to simulate that. We keep them up overnight.

Levin: how many hours

Ogrisseg: 4-10 hours.

Panel 2: Beaver, Dalton, and Mora

Thank you to Mr. Mora.

Levin: Beaver, in Sept 2002, behavioral scientists attended training at Fort Bragg, 9/25 Jim Haynes, Addington, Rizzo, and Chertoff traveled to Gitmo. A week later Jonathan Fredman came attended meeting with you and discussed SERE. Fredman says "anti-torture" basically subject to perception, "the detainee dies you’re doing it wrong." You said, "we’ll need documentation to protect us." Why would you need protection.

Beaver: I can’t account for accuracy of email. WRT Fredman, I had held a number of meetings once military intel wanted to do more techniques, I thought it important that everyone participate in meetings. CITF was invited. I don’t remember what Fredman said, nor what I said, in terms of requesting additional techniques, these techniques not in Field Manual, not in recognized manual, in terms of obtaining command approval, whatever was going to be recommended by MI need to be approved weren’t already trained at Fort Huachuca.

Levin: Reference to protection? Did you say we’ll need documentation to protect us?

Beaver; I can’t say with certainty. Fredman, another view, open discussion.

Levin: Do you remember talking about wet towel technique?

Beaver: DI personnel wanted to request, I had not seen it myself.

Levin: You referenced SERE employed wet towel technique.

Beaver: Interrogators raised technique as one they wanted to employ.

Levin: What about SERE?

Beaver: I thought Hill would approve. Need SOP, people trained, all kinds of things to ensure used properly. Because SERE already had SOPs on these techniques, if something got approved, something SERE used, it made sense as a starting point for SOP.

Levin: Why would you be talking about SERE since its purpose was not interrogation?

Beaver: Detainees showing signs of counter-resistence trained, GC did not apply, they were not to be treated as POWs, if you know there’s something out there that is in the military community, they would look to that. Things that were illegal, torture was illegal, of course they weren’t going to ask for something like that, you look to something you can cut and paste from. I assume that since most people knew SERE, it was a natural jump, and so they reached out to SERE, the only people who had psychologists were SERE.

Levin: You call a natural leap. Were you aware that it was a reverse purpose? Were you aware of all that and yet you say it’s a natural leap?

Beaver: At the time Dunleavy did not include me, the people he sent to SERE school I was not part of that conversation. I’m just imaging why my colleagues would go to SERE school.

Levin: were you surprised there was no written legal analysis.

Beaver: I can only speak to Jane Dalton. I tried to get help from Southcom supervisor, reached him at golf course at Southcom, I sent a draft, I said, I need your help. Dalton told me I needed to speak to Col Superville. I had no idea until 2004 when Haynes released my opinion of many of the other things that had happened. When I submitted by request to Southcom. Until it came from SecDef, I didn’t know what had happened, I thought that Hill made the decision.

Levin: were you surprised that your opinion was relied upon?

Beaver: Shocked. One of the reasons I needed help from Southcom to get it off the island get it to Hill, call military justice experts, to make an objective decision, I thought was the best thing possible, I fully expected Hill’s staff to approve a very narrow set of practices.

Levin: Hill was Southcom commander.

Graham: Dalton, did you see Beaver’s memo. Did you get request to give opinions?

Dalton: Don’t recall the telephone conversation that Beaver related. When I saw memo I believed serious deficiencies.

Graham: Who did you tell?

Dalton: I discussed with my staff, at that time I did not discuss with anyone else.

Graham; Mora, did yous ee memo?

Mora: Inadequate treatment of sensitive issue, took it to Haynes and pointed out to him.

Graham: no one made you write this memo.

Beaver: Based on Dunleavy’s request. No pressure. Generated by me and staff.

Graham: You felt you were hung out a bit.

Beaver: No animosity. I understood at the time that I was hung out by Soutchcom SJA.

Graham: All to get better info. Was waterboarding mentioned?

Beaver: Navy doctor deployed for six months. SERE 2 years assignment. Relayed to myself that he had observed 2000 or 3000 sailors who had been through that school, described to me, only 2 failed to give it up, 2 seals used to controlled drowning. Became aware of that for the first time. What Jerry Feifer discussed was not the board, but a wet towel.

Graham: Someone was contemplating this technique?

Beaver: If it could be done legally, yes. You don’t jump to one thing first. You build, you use what works. That could be just interviewing.

Graham: If I asked you if UCMJ prohibts waterboarding, what would you say?

Beaver: um um

Graham: What is your background?

Beaver: Jack of all trades.

Graham: When you called Dalton why did you call?

Beaver; Help

Graham: Why not help?

Dalton: I don’t recall that conversation.

Graham: When you saw it, why didn’t you do what Mora did?

Dalton: Conduct further legal and policy review.

Graham: Conclusions?

Dalton: I did not conclude that process at that time.

Graham: How long did it take you to conclude this was wrong?

Mora: As soon as I heard, I did everything I could do, until this was rescinded. When I reviewed memo, when I saw it was unbounded, I knew instantaneously, based on inadequate legal analysis. Every JAG shares that view.

Graham: Are we in the right place.

Mora: Impression is military is in right case, doubts about intelligence community.

Pryor: You did not attention September conference at Fort Bragg. You don’t know if it was recommended there that we use SERE in offensive manner.

Beaver: The psychological team would gain benefit by talking to their counterparts at SERE and MI contigent went on fact-finding mission.

Pryor: Purpose was to take SERE techniques and use offensively.

Beaver To see if anything should be used.

Pryor: Part of the purpose was to see if you could apply the techniques at Gitmo.

Beaver; Based on what Dunleavy told us afterwards.

Pryor: You said In short, the techniques would not have been conducted in abusive manner if approval techniques followed. Waterboading is justified if there’s the proper controls.

Beaver: I wrote a legal opinion. Whatever approved, it would be approved so it would not be abusive. SecDef did not approve waterboarding. I was not approval authority.

Pryor: Tab7, notes from October 2002. Comments paraphrased. You referred to this, you don’t know how accurate it is. When did you first see this memo?

Beaver: This past March.

Pryor: You’ve reviewed this. Any questions about accuracy?

Beaver: No way for me to recollect what I said six years ago. No way for me to say if what they say is accurate.

Pryor; You come across as being eager to have these techniques used. You say, yes we can do sleep deprivation if it’s approved.

Beaver; My counterparts were unhappy with this line of discussion. They wrote policy piece. Never received legal objections.

Pryor: They didn’t want these techniques?

Beaver: No, they wanted the law enforcement techniques to be used.

Pryor: sleep deprivation. You’re paraphrased, officially it is not happening. The ICRC is a serious concern. You maybe were trying to cover it up.

Beaver: I was the liaison officer with ICRC, if you’ve got someone in active interrogation, you can’t stop the interrogation, so the ICRC would be down there and leave. If you’re going to do a more intense interrogation, you had to have time to do it,make sure it wasn’t disrupted. If you’re in the middle of an interrogation, you can’t interrupt it to be interviewed by ICRC.

Pryor: You weren’t that familiar with UCMJ,

Beaver: my hope was that when my opinion went to Hill, my concerns would be appropriately addressed by people who do it full time. I was very concerned about the military.

Pryor: did you look at UMCJ, Army field memo, Constitution. Do you have notes?

Beaver: Whatever was retrieved from Gitmo the committee can have. DOD had it, DOD would have provided it.

Pryor: Did you keep a file with all your legal research?

Beaver: It was on a shared supernet. I would have no idea if it was there. I provided the basis for it in the opinion.

Warner: Dalton, First flag rank in JAG career, right?

Dalton: For a woman, yes.

Warner: Vanity Fair, should have been reviewed by Dalton. That never happened. Haynes short-circuited the review process. There’s a certain amount of independence accorded the chiefs of each branch. At that time, to what degree did the Chiefs exercise their independence? Was any consideration given at that time, to exercise rights under Goldwater Nichols their concerns about this policy change?

Dalton: I’m not sure what policy change?

Warner: interrogation techniques.

Dalton: Uh, yes sir.

Warner: You stopped your analysis what you were doing for the Chairman and Richard Myers, is that correct. Chief had a duty to discuss.

Dalton: When memo came in asking for enhanced techniques. Memo distributed to services. Provided inputs. They (the services) sent in responses to joint staff tasker asking for inputs on Hill memo. All services expressed concerns about techniques. ALso expressed appreciation for need for good intelligence. Needed further legal and policy review. next step larger review. What I intended to do.

Warner You initiated.

Dalton: Yes. When I learned that Haynes did not want that broad-based policy review to take place. I stood down.

Warner: How were you told to stand down? Was it in writing?

Dalton: It was not in writing. Chariman indicated to me that Haynes did not want this broad-based review to take place. I continued to engage with Mr. Haynes’ office. This piece has not necessarily been clear. When I stopped review, nevertheless I worked with Haynes’ office and with Chairman in reviewing Hill’s request. At that time there was no perceived need to complain bc process still proceeding. I understood sensitive, Haynes wanted close hold, his prerogative, his office take lead, I would support Chair and work with Haynes.

Warner: Final product?

Dalton: Based on discussions, with Gitmo, Soutcom, I believed that techniques that secretary approved could be conducted humanely.

Warner: Consistent with US and intl law?

Dalton: If conducted with oversight. In context in which discussed. Removal of clothing not nudity, working dogs not dogs unmuzzled and snarling, stress limited to standing for four hours. When you put them together, those techniques could be consistent with domestic and intl law.

Warner Myers made a point, my initials not on doct. Reservations? Did he express them with you?

[Dalton looks behind her, perhaps for legal counsel. And an officer consults with Beaver too.]

Dalton: Days leading up to approval meetings involving Haynes, Myers, Sec Def, and myself. We discussed the techniques. My recollection was that Myers satisfied.

Reed; Dalton, when you received request, Joint Staff solicited opinion of JAGs, extraordinary concerns. "Crossing lines of humane treatment." "Several techniques arguably violate federal law and will expose our service members to prosecution." Did you make Myers aware of serious concerns raised by uniformed officers.

Dalton It is my recollection that he was aware and that I made him aware.

Reed; Did he make Haynes aware?

Dalton: Recollection that we were aware of concerns. Discussed in safeguards.

Reed; You continued discussions with Haynes. You were told to stop analysis.

Dalton I was told to stop broad-based analysis.

Reed you were not dissuaded by Myers to continue to work with Haynes.

Dalton: Myers did not prevent me from continuing discussion.

Reed; You participated in several discussions, not all discussions. Did you raise these concerns? Violation of UCMJ?

Dalton: Hard time recalling particular concerns. I believe known and addressed, we recognized issues related to UCMJ.

Reed; Myers approved techniques?

Dalton: [balks slightly] Agreed that those techniques could be used.

Reed; Did you have concerns.

Dalton: There was one phrase that all techniques, including the three not authorized, I did not necessarily agree with that.

Reed: Did you tell Myers that there were elements that might be serious legal problems.

Dalton: Did not see it until after SecDef signed it.

Reed; Did you tell Myers.

Dalton; After the fact sir? Since SecDef did not approve those techniques,

Reed; Memo said all techniques were legal. But as policy matter would not use them.

Dalton SecDef was approving a set of techniques. It was not necessary to reach the question given that SecDef approved the ones he did.

Reed Those techniques were not approved as a matter of policy, not of law.

Reed: Beaver’s memo. Push, wet towel, would constitute violation of assault. One of the techniques you approved was push. Do you disagree?

Dalton: I disagree. I did not view light pushing and poking to be maltreatment.

Reed; You would also disagree that bc of violation of UCMJ there would have to be immunity.

Dalton: That’s correct.

Mora: Probelm was no bright line. All subject to abuse.

Reed; Part of your rationale for agreeing to conclusion, you objected, you keep citing to conditions, where are those conditions? I don’t think SecDef signed memo that approved of conditions.

Dalton: Pfeifer memo attached, use of techniques…

Reed; Where is the direction by SecDef that those conditions are mandatory?

Dalton: Meetings leading up to approval. In context of one HVD (Qahtani). In that context.

McCaskill: I’m proud as an American, Mr. Mora. Let me cut to the chase. Ms. Dalton and Beaver. Putting detainees together hooded, siccing dogs on them, is legal?

Dalton I don’t believe that’s legal. Not approved by SecDef

Beaver: No ma’am. It never occurred at Gitmo

McCaskill Reading memo. You understand words matter. Removal of clothing. It says Using detainee phobias such as fear of dogs. I’m trying to figure out as a lawyer, how that does not envision naked people having dogs sicced on them. How does that not occur?

Beaver When you develop a plan, if someone had said, lets sic the dogs on them. That did not happen.

McCaskill Dogs were used with naked people.

Beaver Not at Gitmo

mcCaskill Within our military. It happened/

Beaver I can’t comment..

McCaskill Ms Dalton

Dalton: Those approved for Gitmo and did not involve nudity.

McCaskill Removal of clothing. When you were discussing safeguards. Did any one talk putting in the word all. If I saw removal of clothing and I was trying to get info, how would anyone know?

Dalton General Miller said it did not involve nudity.

McCaskill there’s nothing here that would say removal of clothing. It’s not in there.

McCaskill Ms Dalton are you aware of any concept called advance immunity? Did it jump out at you.

Dalton It was one I thought was not correct.

McCaskill did it concern you that it included a concept that would itself be illegal.

Dalton That’s why I believed there needed to be additional review.

McCaskill And btw, I feel for you today, Beaver, this is hard. Proposed strategies do not violate law

Beaver I believed the law allowed a lot. With GC not applying. Even European Human Rights say hoods are allowed. I was at the bottom of the food chain. I didn’t think of many of the things that was written in the 50 page opinion written by DOJ. If it was looked at people not directly involved. I was trying to highlight my extreme concern that MPs could be prosecuted later. For me it was a red flag for people like Dalton to say, I’m concerned about this. Unfortunately Superville never responded.

McCaskill You felt you needed to move it off the island. You put your name on it as the lawyer who was asked to give an opinion, why should they take the heat. Here’s what I want. Let me finish this point. You have said you didn’t feel pressure from anyone. You said in your memo the proposed strategies do not violate applicable law. You said "Agree" that proposed strategies don’t violate law. Who were you agreeing with?

Beaver I don’t know.  Perhaps it’s just my opinion. I had built in safeguards. Legal opinion, medical safeguards, legitimate govt purpose. Interrogation is always a grey area. You can’t come up with all the conditions of an interrogation. If you had these reviews, these safeguards, I believed in my colleagues from the intelligence community. That’s why I believe there was no violation of the law at Gitmo. Detainees were beaten to death at Bagram.

McCaskill It’s a sad day in this hearing room when we say at least they weren’t beaten to death.

Beaver Detainees were not abused. 

Joby Warrick maps out what we can expect from today’s Senate Armed Services Committee hearing, now showing on CSPAN3.

A Senate investigation has concluded that top Pentagon officials began assembling lists of harsh interrogation techniques in the summer of 2002 for use on detainees at Guantanamo Bay and that those officials later cited memos from field commanders to suggest that the proposals originated far down the chain of command, according to congressional sources briefed on the findings.

The sources said that memos and other evidence obtained during the inquiry show that officials in the office of then-Defense Secretary Donald H. Rumsfeld started to research the use of waterboarding, stress positions, sensory deprivation and other practices in July 2002, months before memos from commanders at the detention facility in Cuba requested permission to use those measures on suspected terrorists.

The reported evidence — some of which is expected to be made public at a Senate hearing today — also shows that military lawyers raised strong concerns about the legality of the practices as early as November 2002, a month before Rumsfeld approved them. The findings contradict previous accounts by top Bush administration appointees, setting the stage for new clashes between the White House and Congress over the origins of interrogation methods that many lawmakers regard as torture and possibly illegal.

This is a well-constructed hearing–and I say that not just because my Senator, Carl Levin, put it together. It has three panels. The first features the people who turned SERE techniques into torture techniques:

Mr. Richard L. Shiffrin
Former Deputy General Counsel for Intelligence
Department of Defense

Lieutenant Colonel Daniel J. Baumgartner, Jr., USAF (Ret.)
Former Chief of Staff
Joint Personnel Recovery Agency

Dr. Jerald F. Ogrisseg
Former Chief, Psychology Services
336th Training Group
United States Air Force Survival School

The second panel will expose the debate among military lawyers about whether or not to use torture:

Mr. Alberto J. Mora
Former General Counsel
United States Navy

Rear Admiral Jane G. Dalton, USN (Ret.)
Former Legal Advisor to the Chairman
Joint Chiefs of Staff

Lieutenant Colonel Diane E. Beaver, USA (Ret.)
Former Staff Judge Advocate
Joint Task Force 170/JTF Guantanamo Bay

And the third features Jim "Chevron" Haynes, who is under some pressure for his changing testimony, potentially amounting to perjury:

Mr. William J. Haynes II
Former General Counsel
Department of Defense

Here are the documents that will be discussed during the hearing (courtesy of WO and Marty Lederman).

I’ll be doing a light liveblog all day. Right now, Carl Levin is up reading his statement.

10:35 Levin and Lindsey Graham both gave opening statements. Levin is in a typical Levin mood (ornery but principled). Graham (who is serving as acting Ranking Member, in lieu of John McSame) sounded reasonable for about 2/3 of his statement. He said, clearly, that Abu Ghraib was not done by a few bad apples. He also sounded like he’s ready to take it to Jim "Chevron" Haynes. But then he said, golly, can we stop investigating our mistakes now? It was 9/11 9/11 9/11. Graham also used this opportunity to attack the Boumediene decision, setting up his and Holy Joe’s legislative attack on it and the Constitution.

Note who didn’t provide written statements: Shiffrin and Haynes, those in most legal risk.

Finally, consider some of the political tensions here:

• McCain appears to be hiding, letting his chief apologist Lindsey Graham to take his place. Frankly, I’m happy to have Graham–as a JAG officer, occasionally he commits reasonableness (as he did in his opening statement). Still, it is telling that the Republicans presidential candidate doesn’t want to talk about torture.
• We’re missing Ted Kennedy and (I think) Robert Byrd, due to health reasons. That’s unfortunate. We’ll miss their voices in such an important hearing.
• Given the absence of Kennedy and (I assume) Byrd, and Holy Joe’s presence as a "Democrat," the Republicans effectively have a majority today.
• There are seven Republicans on the committee up for re-election (plus McCain). In declining order of electoral threat, they are: Dole, Wicker, Collins, Cornyn, Inhofe, Chambliss, and Graham. Let’s see whether the prospect of a tough re-election makes these people reasonable or leads them to sit out this hearing.

Levin: Shiffrin: you had discussions with Jim Haynes about interrogations. And did you talk about SERE?

Shiffrin; yes. My recollection is that at some point in the spring I had discussions about where expertise about interrogation might be. DOD had been out of the business of interrogation since Vietnam. I said finding historical professional journals. I assumed this stuff was still being investigated by professionals.

Levin: Was it after Haynes that you talked to Baumgartner?

Shiffrin: I spoke to someone, it could have been Baumgartner.

Levin: You don’t remember whether those requests were based on Haynes.

Shiffrin: No, based on that. As to whether he told me to contact JPA, I don’t know.

Levin: Frustration with lack of intelligence?

Shiffrin: Discussion about progress or lack of progress?

Levin: You sent physical methods and document from Ogrisseg. [checks whether his memo is the one submitted as evidence] The first attachment was Ogrisseg memo. Get’s title of the memo.

[You think we can borrow Levin for the McClellan hearing on Friday?]

Levin: Ogrisseg, in your prepared testimony, you said wrt July 2002 communication with Baumgartner, was your recollection that Baumgartner called you directly. He indicated that he was getting asked from above. [Reviews Ogrisseg’s opposition to using SERE offensively, verifies that his memo is the one submitted as evidence, asks whether SERE should be used to interrogate.]

Ogrisseg: Those techniques are derived from what has happened to our personnel from the enemy. We put students through it so we can increase their resistance and their confidence that they will be able to survive.

Levin: Is there a way those being trained can get the treatment to stop?

Ogrisseg: Yes.

Levin: Are SERE instructors trained interrogators.

Ogrisseg: No.

Levin: Baumgartner, do you remember saying you got the order from above?

Baumgartner: Yes sir.

Levin: Who was above?

Baumgartner: Office of General Counsel [that is, Haynes].

Levin: You did not believe that these techniques would be used against detainees?

Ogrisseg: Yes.

Graham: Haynes concerned that we’re not getting good intelligence using rapport based techniques.

Shiffrin: I remember attending at least 2-3 meetings were topic was frustration with whether we were getting information.

Graham: Was the sense that something else needed to be tried?

Shiffrin: My request was about what worked and what didn’t worked. This info in Spokane, and it was going to take some time to get it. I told Haynes it’s 3000 miles away, it’ll take more than a day to get here. I got some stuff from 1950s.

Graham: Baumgartner. Do the techniques work? Do they get good intelligence?

Baumgartner: In what frame of reference? I’m not an intelligence officer. They work to demonstrate to a student how to resist getting intelligence.

Graham: No opinion whether they yield good information?

Ogrisseg: These are effective for getting our people to survive from captivity.

Graham: You can get anyone to say anything over time?

Ogrisseg: That’s the problem. You could get them to say anything.

Holy Joe: Blah blah blah. Congressional oversight. Bestill! I might burn myself, it’s been so long since I had any oversight.

Holy Joe: Hindsight 20-20. People on this committee know intelligence is important.

[I guess Joe is the designated apologist for torture. Nice. Anyone rethinking their support of Holy Joe against Lamont?]

Holy Joe: We’re a nation of law. Looking back, some people, I assume, well-motivated, that were wrong. And some people who said some things, that in hindsight, were jarring. Even Rummy’s statement, which is hard to read with certain clarity, it has an edge, about how long detainees could be forced to stand. That’s not what this is about. There are heros that emerge. Levin’s statement shows that. Mr. Mora is, in hindsight, a hero. I want to go to my questions [thanks, Joe]

Holy Joe: Shiffrin, why in the world would we have gone to the people training the SERE group, my only question to myself was, why weren’t we prepared ourselves?

[Today’s drinking game: drink a coffee when Holy Joe says "hindsight."]

Shiffrin: Initial motivation was to find the font of learning. There was a discussion about reverse engineering SERE. I don’t know where it came from. I think Haynes came back to me and said, "no this 50s stuff isn’t what we’re looking for." [Note Shiffrin said he was looking for stuff that wasn’t criminal interrogation.]

Holy Joe: Did you ever call, or did anyone call, the interrogation experts at the DIA? CID?

Shiffrin: Not to my knowledge. I do recall Army CID fairly early on.

Holy Joe: Prosecutors in civilian setting? Of course criminal detainees have more protection–at least prior to SCOTUS decision last week.

Shiffrin: Not to my knowledge.

Holy Joe: Ogrisseg Did anyone ask you about your judgment as a mental health professional about effectiveness of techniques? Not to train our people, but to elicit information. In your memo, you did not have to offer your professional judgment?

Ogrisseg: That would have been outside the bounds of my competence.

Collins: Shiffrin. Why not seek assistance from FBI?

Shiffrin: I have no personal knowledge whether they went to FBI. My personal observation in limited dealings with Secretary. Secretary very jealous of other agencies, specifically wrt inherent capabilities. I brought up CIA’s ability to get things done in Afghanistan. Secretary was quite upset. CIA had been there fore 25 years. That was never a satisfactory answer to him. It would have been unthinkable to say, the people that are really good at this are CIA, DIA, others who have been conducting interrogations.

Collins: Secretary’s intent to build up duplicative ability. What about Army Field Manual. Was there a discussion about why that was inadequate?

Shiffrin. Not Aware.

Collins: Baumgartner?

Baumgartner: no, I’m not.

Collins: Are you aware of a time when techniques based on SERE training were successfully employed.

Baumgartner: Not just SERE techniques, used by FBI, by priests, by mom and day, good cop, bad cop, a lot of them are nothing more than interview techniques. We’ve taken what we’ve found because we know they work against us.

Collins: SERE never meant to be interrogation techniques. The irony here is that the SERE training is intended to help our troops resist inappropriate interrogation methods. By very nature of SERE training, we’re trying to help our troops resist techniques that are not sanctioned.

Akaka: Shiffrin, circumstances surrounding original request. How familiar were you with JPRA?

Shiffrin: I only knew of JPRA through another program. I knew what SERE was, but no more than you could get from reading a paragraph.

Akaka: Baumgartner, My understading that assigned to SERE until 2003 and that as your last assignment, you brought oversight of internal processes. Prior to July request, had JPRA ever been contacted by DOD regarding this type of information. Was this unusual.

Baumgartner: Back in December, that was the first contact. The next contact early July, asked us for information on exploitation interrogation. We used it for training.

Akaka: Were the techniques briefed?

Baumgartner: Some were, but as to specific techniques, I don’t know.

Akaka: How effective is resistance training given our own members. Haven’t enemy combatants been given similar training?

Ogrisseg: WRT our training. We studied it. Our students are confident.

Akaka: Baumgartner, You were not privvy to everything. JPRA have ability to go to Commanders and Deputy Commanders. Why would decisions be made without COS input.

Baumgartner: You’re not the gatekeeper for everything. Each Director has ability to go to Commander without going through COS.

Bill Nelson: Waterboard expressed extreme compliance techniques. Why don’t you give further observations?

Ogrisseg: When I observed the Navy training, I watched their debriefing, following training, with these students that experienced it, the jist of the comments was that "If they had brought me near that thing again, I would have done anything they wanted to be done."

Nelson: Chairman said limited to 20 seconds. Those Seals would know they would not be killed. It’s to prepare them for it. Your observations of that are that at the end of the day, whatever the captor wants the captee to do, the captee is going to do.

Ogrisseg: Certainly they would comply with what was wanted. With waterboard, it doesn’t take very long to instill very real fear of drowning, even if they know what the rules of engagement are.

Nelson: Lack of sleep. You haven’t seen people deprived of sleep on whether or not the information would be good or not?

Ogrisseg: In training the skillsets that we want them to apply will hopefully degrade the quality of information they’ll get.

Nelson: Under Field Manual. Detainee must get four hours of sleep each day. Al-Qahtani in late 2002 at Gitmo, deprived of sleep 18-20 hours a day for 48 of 54 days. Opinion of mental capacity?

[What does Bill Nelson not get about Ogrisseg’s own expertise?]

Ogrisseg: I have no familiarity with subject.

Levin: Portions of my statement that I left out–paragraphs relating to Qahtani.

Ben Nelson: No one asked your opinion on torture.

Shiffrin: Above my pay grade. I never remember being aware of specific techniques.

Shiffrin: I don’t recall having any concern that these techniques would be used. But then some of them were relatively benign.

Ben Nelson: waterboarding is not in that category.

Shiffrin: Never heard of waterboarding until I retired. Did not participate in discussion of specific harsh techniques.

Pryor: Baumgartner. Did the JPRA ever advocate using the SERE techniques in offensive manner against techniques.

Baumgartner: No, we provided the information. We have folks who have studied interview techniques.

Pryor: Would you, today, recommend these techniques?

Baumgartner: I’m not qualified to answer that. This has to be discussed by legal counsel and Admin officials far above my pay grade. Must be decided beforehand.

Pryor: When did you learn about SERE used for interrogation?

Baumgartner: It wasn’t for training. So it was for something else. I had an idea they would look as a matter of policy what the US would use. Was not part of decision making process at all.

Reed: Did anyone ask you for list of physical methods.

Baumgartner: We had a requet from DOD and another agency.

Reed: What other agency?

Baumgartner: That’s classified.

Reed: Basic premise of SERE is that our enemies will not follow Geneva. If that’s the premise, What logic of using those techniques for our detainees?

Baumgartner: Not qualified to answer that.

Reed: Premise is that our adversaries won’t follow rules of war. You were training against real possibility that our adversaries would not follow Geneva. Thrust to prepare for worst case. These techniques probably per se violative of GC. Any question why they needed it? You just quietly, without raising the question?

Baumgartner: When tasked by OSD, if they needed the information, I had no idea what they were going to do it. When I’m tasked to provide info they can legitimately have, I provide it.

Reed: Did anyone discuss this around the water cooler?

Baumgartner: We discussed it. It was of professional interest.

Reed: Did you think it would be a challenge how to integrate without violating GC?

Baumgartner: it’s best if you do this beforehand.

Reed: Shiffrin, premise, would not follow GC.

Shiffrin: It’s not something I thought about at the time. Training pretty wide-ranging. A lot of the discussion I was privvy to, offer an inducement. Cable TV, extra pillow.

Reed: Those did not seem to appear in Category 1, 2, 3.

Sessions: Shiffrin, your position, who you reported to?

Shiffrin: DGC Intelligence for DOD in December 1997. Was at OLC. Had that position until I was demoted or transferred at end of 2002. Became acting GC at DIA.

Sessions: Aware that these techniques, based on request from Commander at Gitmo.

[Sessions trying to help out Haynes and Rummy]

Shiffrin: I had no knowledge of that.

Sessions: I know there will be other panels afterwards. On behalf of the military, this is what I understood happened. Three incidences of waterboarding, none at Gitmo, none by FBI. Military working to deal with small with group of indivs. One, 20th hijacker. They went through lawyers and reviewed some of these techniques. I would point out to my colleagues, this was all before Hamdan.

Shiffrin: I don’t remember date of Hamdan.

Sessions: operating under leg supported by Leahy, Biden, Kennedy, and it defined torture, but it didn’t just prohibit isolation or stress techniques, said you could subject someone to severe suffering.

Sessions: I would just say to the Chairman, whether these opinions were correct, whether SCOTUS changed the law. We’ve got a situation is that the people on the ground felt they were dealing with high value targets and DOD approved techniques they felt did not violate statute that prohibited extreme pain. Didn’t say you couldn’t stress them or things like that. For goodness sakes, it is not the kind of rogue activity that has been suggested. Our military felt they were threatened after 9/11. Wanted intell that could stop another group. Consulted legal system up to DOJ. Hopefully we can create policy we can all agree upon. Shouldn’t disrespect men and women in Uniform. 

Marcy is in Minneapolis at the Wide Stance Film Festival National Conference for Media Reform (a really cool program I might add, the link is worth a look) and Ted Stevens clogged my tubes last night, but things look to be A-OK this morning.

Guantanamo The Showcase is starting to seep into the conscience. Marcy has pointed out the rather curious intersection of the right wing family value of hating on same sex marriage, and those who would wish to practice it, with military commission procedure. By far and away, the best national reporting on the Guantanamo Show is, and has long been, done by Carol Rosenberg at the Miami Herald. Marcy thinks it is Pulitzer Prize good; by the time the year is out, I’ll bet she may be right. Our friend drational has done a couple of posts reminding us that the Gitmo Showcase is much more than a macabre puppet play for the Cheney/Bush torture fiends, it is also a big campaign commercial for the "law and order" set at the GOP.

But I want to bring attention to something that really sank in for me yesterday morning and that a few people are starting to pick up on, but not many, and not nearly enough. Rosenberg laid out the background on the day long arraignment proceedings for the detainees at Gitmo at the link cited above:

But the day was remarkable — a 9 a.m. to 6:30 p.m. court session, including two prayer breaks — in which each man rejected the two to four military and civilian attorneys sitting beside him.

The director of the American Civil Liberties Union, Anthony Romero, watched from the spectators gallery in a fury. He had been building a death penalty defense fund and pool of criminal defense lawyers to help the military lawyers.

”It was one of the saddest days in American jurisprudence,” he said. ‘The word `torture’ was used so abundantly and the legal process continued.”

He blamed Pentagon haste to get the men to trial before the end of the Bush administration. Defense lawyers were not given sufficient time to forge attorney-client relationships ”with men who were tortured for five years,” before Thursday’s arraignment, he said.
…
Some of the men rejected the legitimacy of commissions, in which U.S. military officers serve as judge and jurors. Saudi Mustafa Hawsawi, who allegedly funneled funds for the terror plot, went last and appeared to be echoing the others who came before him.
…
At one point, after earning the right to defend himself, Bin Attash interjected with a question: “If we are executed, will we be buried in Guantánamo or sent back to our home countries?”

Kohlmann didn’t answer.

However, it was a couple of lines in a teevee report by NBC/MSNBC’s Jim Miklaszewski yesterday (Friday) morning that were what pegged the outrage meter for me. I cannot find a clip of the exact report I saw, it was on MSNBC at about 9-9:30 am Pacific time. If anybody knows it and/or has a link, please post it in comments and I will update accordingly. Here is how I described it at the time in an email to Marcy and some other friends you all know:

Usual junk except for what I am sure he thought were a couple of throwaway lines that I found real interesting. The first was the report we already heard about KSM in the courtroom yesterday at the arraignment being the leader and speaking to the other detainees there as a group, clearly exhibiting his authority. But then the reporter relates how a couple of the other detainees seemed hesitant to give up their military lawyers and be martyrs, but how KSM was explicit in commanding the others, and how the government is not necessarily unhappy with this because the more the military lawyers are out of the picture, the easier the detainees all will be to convict (and administer the death penalty to by extension).

Doesn’t seem that earth shattering at first; however, think through the dynamics to date and the blaring significance sets in. The US has assiduously kept the detainees separated and isolated all this time so that they could not communicate and have structural control from the top down and, then, out of the blue, viola! Right in the middle of the courtroom, Khalid Sheikh Mohammed is blithely allowed to huddle them up like Favre does the Packers. When they break huddle, all of them, even the hesitant ones, suddenly want to dismiss their JAG/military lawyers that have been doing such commendable work under impossible conditions. Exactly at the point it is useful to help the US rid themselves of those meddlesome military lawyers that have been beating up their dog and pony shows.

First the Cheney Administration sacked the military judge that had the gall to allow even a shred of due process to the detainees, and now they have effectively sacked the military lawyers that had the temerity to seek it. This was a knowing and intentional play to deny counsel. The US Administration knew what Khalid Sheikh Mohammed would do, and they knew that, given the opportunity, he would command the other detainees to do the same. So the US made sure it happened, so as to suit their demented self serving convenience. In writing this post, I have found one other person (h/t to Siun) that has also realized what occurred, and it is none other than Anthony Romero, the Director of the ACLU; everybody should know and be ashamed of what has been done in our name.

This huge bit of legal depravity is of truly profound significance, I cannot emphasize that enough. It sure will go an awful long way to wedge out and marginalize the only lawyers actually doing their job in this whole mess, and will insure that a competent record of the torture will not be created (even if the detainees do mention it). It will also hasten the death penalty killing of these detainees that are prime evidence of the whole US torture scheme. Pretty much is one big eraser and obscurer of the legal hash the prosecution has made. Brilliant. But morally, ethically and legally craven and deplorable. This is the story from the Guantanamo arraignment last Thursday that should be being discussed and decried. This is the penultimate straw; the last straw will be the snuff films that have been facilitated and hastened by Thursday’s Gitmo arraignment shame.

Marty Lederman links to the DHS OIG report on Maher Arar’s transfer to and subsequent torture in Syria. It’s really really ugly reading, even though they’ve obviously redacted a lot of the paragraphs that ought to reveal the decision making process by which we decided sending Arar home to Canada or even to Switzerland so instead sent him to be tortured (many of the redacted paragraphs are marked with "U’s,"
signifying they’re unclassified).

Anyway, some more light reading to bring with me on my trip to Minneaplis this weekend for the Media Reform Conference.

In the meantime, I’m struck by this bit from Marty:

Interestingly, in his own testimony today, the Homeland Security IG states that "we have reopened our review into the Mr. Arar matter because, less than a month ago, we received additional information that contradicts one of the conclusions in our report. As such, we are in the process of conducting additional interviews to determine the validity of this information to the extent we can."

It’s not clear what the IG is treating as conclusions. But one of the big issues in the report–predictably–was how the hell it was that DOJ reviewed Syria’s human rights record and didn’t notice (right, yeah) that Arar was likely to be tortured. So I’m curious if the IG learned some new details about that decision-making process.

Via POGO, the Pentagon has made two key documents relating to the military’s use of torture available on its website: a March 2003 JAG Memo slamming a draft of the Working Group’s Report on Detainee Interrogation, and the Working Group’s Report which was published the following month. As POGO notes, these documents were declassified some time ago (Marty Lederman had posted the JAG one here and WaPo posted the report here), but they provide important context to the discussions surrounding John Yoo’s March 2003 Torture Memo.

I’ll come back to the Working Group Report (which lays out the potential risks for when the public discovers the US is using torture and has a nifty list of the ways our interrogation techniques would piss off our allies), but for now I just wanted to show how dubious the Judge Advocate general, General Thomas Romig, found John Yoo’s (and the Administration’s) Unitary Executive theories to be:

The Office of Legal Counsel (OLC), Department of Justice (DOJ), provided DOD with its analysis of international and domestic law as it relates to the interrogation of detainees held by the United States Government. This analysis was incorporated into the subject draft Report and forms, almost exclusively, the legal framework for the Report’s Conclusions, Recommendations, and PowerPoint spreadsheet analysis of interrogation techniques in issue. I am concerned with several pivotal aspects of the OLC opinion.

While the OLC analysis speaks to a number of defenses that could be raised on behalf of those who engage in interrogation techniques later perceived to be illegal, the "bottom line" defense proffered by OLC is an exceptionally broad concept of "necessity." This defense is based on the premise that any existing federal statutory provision or international obligation is unconstitutional per se, where it otherwise prohibits conduct viewed by the President, acting in his capacity as Commander-in-Chief, as essential to his capacity to wage war. I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. If such a defense is not available, soldiers ordered to use otherwise illegal techniques run a substantial risk of criminal prosecution or personal liability arising from a civil lawsuit.

The OLC opinion states further that customary international law cannot bind the U.S. Executive Branch as it is not part of the federal law. As such, any presidential decision made in the context of the ongoing war on terrorism constitutes a "controlling" Executive act; one that immediately and automatically displaces any contrary provision of customary international law. This view runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact DOD interests worldwide. On the one hand, such a policy will open us to international criticism that the "U.S. is a law unto itself." On the other, implementation of questionable techniques will very likely establish a new baseline for acceptable practices in this area, putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards the U.S. has worked hard to establish over the past five decades. [bold my emphasis]

I guess this makes clear–as if we didn’t already know–why Cheney wanted to control the promotions process for JAGs. As Romig himself said of Cheney’s efforts,

Retired Major General Thomas Romig, the Army’s top JAG from 2001 to 2005, called the proposal an attempt "to control the military JAGs" by sending a message that if they want to be promoted, they should be "team players" who "bow to their political masters on legal advice."

It "would certainly have a chilling effect on the JAGs’ advice to commanders," Romig said. "The implication is clear: without [the administration’s] approval the officer will not be promoted."

As Marty and Scott Horton and Jane Mayer have reported extensively, this JAG memo (and the others at Marty’s link) show the degree to which DOD was warned against accepting John Yoo’s advice. Curious that the DOD is making this all more accessible now, just as we’re about to start the Gitmo Show Trials.

Update: opps, mistranscribed "broad."

Man, if you had to choose whom to believe between John Yoo or Alice Fisher and Michael Chertoff who would it be? John Yoo is a hack–but he’s an unashamed hack, proud of his accomplishments. Alice Fisher? Michael Chertoff? They’re more of the dishonest hack type.

The reason I ask is that there’s a seeming contradiction between what Yoo claims in his March 2003 torture memo regarding DOD practices and Alice Fisher and Michael Chertoff’s statements to DOJ’s OIG regarding related events. At issue is whether the Criminal Division of DOJ–Fisher was the Deputy Assistant Attorney General in 2003, and just resigned from Criminal Division Chief; Chertoff was head of the Criminal Division when the Administration was developing its torture policies–told OLC how they would treat certain actions criminally. The Yoo Torture Memo claims that OLC had consulted with the Criminal Division about which statutes would not apply to the military during the conduct of war:

The Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war.

But the DOJ OIG report on torture records Alice Fisher stating that the Criminal Division did not give advice–at least not on the techniques themselves.

Fisher stated that at some point she became aware that the CIA requested advice regarding specific interrogation techniques and that OLC had conducted a legal analysis. She also said she was aware of two OLC memoranda on that topic, but they did not relate to the FBI. Fisher also told the OIG that Chertoff was very clear that the Criminal Division was not giving advice on which interrogation techniques were permissible and was not "signing off" in advance on any techniques. (page 70fn; 113/438)

And Chertoff claims that he was asked–but refused to give–sign off on particular techniques.

Chertoff said that the Criminal Division was asked to provide an "advance declination" in connection with the CIA’s use of some techniques, but that he had refused to provide it.  (page 100-101; 143-4/438)

In the sentence immediately following the description of Chertoff’s denial, it also describes Chertoff admitting that he reviewed the memo.

In testimony before the U.S. Senate on February 2, 2005, Chertoff stated that he was asked to review a draft of an OLC memorandum that eventually became the August 1, 2002, OLC memorandum regarding "Standards of Conduct for Interrogation," which is sometimes referred to as the "Yoo memorandum." Chertoff stated in his Senate testimony and his OIG interview that at least some of the CIA "techniques" were described to him at the time.

And then in a footnote, it reminds that the memo Chertoff reviewed did specifically address whether torture would or would not be charged.

This general opinion did not describe any specific interrogation techniques, but did include an examination of "possible defenses that would negate any claim that certain interrogation methods violate the statute" prohibiting torture. A separate DOJ opinion issued the same day stated that the specific techniques approved …

The reason this matters is because if Chertoff did sign off on what would and would not be charged, then the memos basically become attempts to make the illegal legal. Marty Lederman explains,

From all that appears, John was not acting entirely on his own with respect to the March 14th Opinion. Section II of the memo is where much of the most astounding legal analysis appears. In that section, John concludes that the federal statutes against torture, assault, maiming, and stalking (i.e., threats) simply do not apply to the military in the conduct of war, by virtue of four "canons of construction": (i) that criminal statutes should not be construed to apply to the military during war; (ii) that they should not be construed to apply to the sovereign more broadly; (iii) that they are superseded as to the military by the Uniform Code of Military Justice; and (iv) of course, that if Congress did mean for them to apply in this context, it would be a violation of the Commander in Chief’s prerogatives.

The memo’s application of these canons to these statues (especially the torture statute) is, in my opinion, fairly outrageous, for reasons I’ll discuss in further posts. And this section is the heart of the Opinion — the belts and suspenders in support of the basic conclusion that the military need not worry itself about all of these (and other) criminal laws in interrogation of al Qaeda suspects.

Here’s the remarkable thing: Page 11 of the Opinion states that "[t]he Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war."

In other words, John Yoo checked with the Criminal Division as to whether the military could torture and maim detainees in a war, and that Division, which ordinarily strongly resists narrowing constructions of criminal statutes, agreed that the torture and maiming (and other) statutes were inapplicable.

Now, as I said upthread, this is a seeming contradiction. What Fisher and Chertoff appear to be denying is that they bought off on any specific torture techniques. That’s different, of course, than buying off on the concept that the Criminal Division would not prosecute torture per se during wartime.

So actually, with their carefully parsed responses, Fisher and Chertoff are probably not lying. They’re just trying to distract from the fact that Chertoff bought off on the larger concept that DOJ would not prosecute torture in time of war–and then gave Yoo the leeway to decide for himself what kinds of torture he wanted to authorize. 

The ACLU has a bunch of new documents on water-boarding posted–including a very heavily redacted draft of the 2004 CIA OIG report on the CIA’s interrogation methods. The report is interesting for three reasons:

• The way they refer to water-boarding
• The timing
• The rationale

The Waterboard

One of the very few things they’ve left unredacted (in all these heavily redacted documents) are the references to water-boarding. But they don’t use it as a verb, "to water-board." Rather, they almost always refer to it as "the waterboard."

The water board technique

interrogators administered [redacted] the waterboard to Al-Nashiri

interrogators used the waterboard on Khalid Sheykh Mohammad

Cables indicate that interrogators [redacted] applied the waterboard technique to Khalid Sheykh Mohammad

waterboard session of Abu Zubaydah

waterboard on Abu Zubaydah

The waterboard has been used on three detainees: Aby Zubaydah, Al-Nashiri, and Khalid Sheykh Mohammad

I don’t know why this bugs me so much, but it does. It really emphasizes the clinical and bureaucratic nature of this practices, and pretends that human beings are not the ones inflicting it.

The Timing

The ACLU refers to this as a "draft document," though there is nothing on what is visible on the cover page to suggest this wasn’t a final draft–so we can’t be sure whether the date on the report is the date when it was finally released.

Still, I find the date worthy of note: May 7, 2004. Here’s how that date works into the torture timeline:

April 7, 2004 (approximately): 60 Minutes II acquires photos authenticating Abu Ghraib story.

Mid-April, 2004: General Myers calls Dan Rather to ask him to delay story.

Mid-April, 2004: Taguba begins to brief officers on his report ("weeks" before his May 6 meeting with Rummy).

April 28, 2004: Hamdi and Padilla argued before SCOTUS. Paul Clement assures the Court that we don’t torture. 60 Minutes breaks Abu Ghraib story and proves he’s wrong.

May 2004 (within days after Abu Ghraib becomes public): CIA briefing for Addington, Bellinger, and Gonzales on torture tapes.

May 6, 2004: Taguba meets with Rummy, Wolfowitz, Cambone, Myers, and others

In the meeting, the officials professed ignorance about Abu Ghraib. "Could you tell us what happened?" Wolfowitz asked.

[snip]

“Here I am,” Taguba recalled Rumsfeld saying, “just a Secretary of Defense, and we have not seen a copy of your report. I have not seen the photographs, and I have to testify to Congress tomorrow and talk about this.”

May 7, 2004: Rummy testifies before Congress on Abu Ghraib.

May 7, 2004: CIA OIG draft report on interrogation techniques. Though this document is heavily redacted, reports say the investigation found interrogation techniques constitute cruel and inhuman treatment.

May 10 2004: Sy Hersh’s Abu Ghraib story.

In other words, this draft of the report, at least, bears the same date as Rummy had to testify before Congress. And the report came out right in the middle of the panic over Abu Ghraib and probably early enough to be included in the May briefing of Addington, Bellinger, and Gonzales on the torture tapes.

They would have freaked out about this report in any case. But the timing of it surely exacerbated their panic.

The Rationale

As Doug Jehl reported at almost the same time as the torture tapes were destroyed, the report concluded that some of the interrogation methods might constitute cruel and inhuman treatment, and as such, violate the Convention against Torture.

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

The previously undisclosed findings from the report, which was completed in the spring of 2004, reflected deep unease within the C.I.A. about the interrogation procedures, the officials said. A list of 10 techniques authorized early in 2002 for use against terror suspects included one known as waterboarding, and went well beyond those authorized by the military for use on prisoners of war.

The convention, which was drafted by the United Nations, bans torture, which is defined as the infliction of "severe" physical or mental pain or suffering, and prohibits lesser abuses that fall short of torture if they are "cruel, inhuman or degrading." The United States is a signatory, but with some reservations set when it was ratified by the Senate in 1994.

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

While the CIA isn’t showing us that part of the conclusion, it does show enough of the discussion on the legal issues surrounding the interrogation methods to show how they got to that conclusion. I find two parts of that discussion noteworthy.

First, after reviewing how the US interpreted Article 16 of the Convention–which prevents cruel, inhuman, or degrading treatment or punishment which do not amount to torture–to be limited to that "cruel, unusual, and inhumane treatment or punishment prohibited by the 5th, 8th, and/or 14th Amendments to the Constitution," it notes that:

Although the Torture Convention expressly provides that no exception circumstances whatsoever, including war or any other public emergency, and no order from a superior officer, justifies torture, no similar provision was included regarding acts of "cruel, inhuman or degrading treatment or punishment."

This suggests that one thing the OIG considered was whether this no exception provision would apply to the cruel and inhuman clause. After all, if it did, it would present trouble for all the Yoo Memos that invoke exceptional circumstances and Commander in Chief authority.

The report also notes that Yoo’s August 2002 did not consider whether any law–aside from the torture statute–relevant to the detention and interrogation of detainees outside of the US, suggesting that Yoo didn’t address these concerns about the Convention.

Then there’s the part I really like. The report uses the State Department’s own reporting to show that the techniques used by the US are considered offensive to the US:

Annual U.S. State Department Country Reports on Human Rights Practices have repeatedly condemned harsh interrogation techniques used by foreign governments.

[snip]

[from the 2002 Report issued in March 2003] In a world marching toward democracy and respect for human rights, the United States is a leader, a partner and a contributor. We have taken this responsibility with a deep and abiding belief that human rights are universal. They are not grounded exclusively in American or western values. But their protection worldwide serves a core U.S. national interest.

The State Department Report identified objectionable practices in a variety of countries including, for example, patterns of abuse of prisoners in Saudi Arabia by such means as "suspension from bars by handcuffs, ad threats against family members … [being] forced constantly to lie on hard floors [and] deprived of sleep …." Other reports have criticized hooding and stripping prisoners naked.

In other words, the report uses our country’s own principled statements against torture techniques–precisely some of the ones we have used on detainees since 2001–to show that the US considers these practices to be objectionable.

Now, in spite of the fact that they’ve shown how the OIG arrived at its conclusion that these interrogation methods violated the Convention, they’ve still invoked some kind of secrecy rule in order to redact that bit.

I guess that’s the "we don’t want to admit we broke the law" FOIA exception.

The comments on the previous thread on the DOJ OIG Torture Report just closed.

But I’ve been meaning to start a new thread with a link to the searchable report that Selise made. Selise adds:

1. Appendix B and C I did not convert.
2. I compressed the file when I was done (it got up to 72MB) so it’s back to about 6 MB.
3. if there are any important errors I should correct, just let me know…