[Senate Hearing 110-720]
[From the U.S. Government Publishing Office]
S. Hrg. 110-720
THE TREATMENT OF DETAINEES IN U.S. CUSTODY
=======================================================================
HEARINGS
before the
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JUNE 17 AND SEPTEMBER 25, 2008
__________
Printed for the use of the Committee on Armed Services
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COMMITTEE ON ARMED SERVICES
CARL LEVIN, Michigan, Chairman
EDWARD M. KENNEDY, Massachusetts JOHN McCAIN, Arizona
ROBERT C. BYRD, West Virginia JOHN WARNER, Virginia,
JOSEPH I. LIEBERMAN, Connecticut JAMES M. INHOFE, Oklahoma
JACK REED, Rhode Island JEFF SESSIONS, Alabama
DANIEL K. AKAKA, Hawaii SUSAN M. COLLINS, Maine
BILL NELSON, Florida SAXBY CHAMBLISS, Georgia
E. BENJAMIN NELSON, Nebraska LINDSEY O. GRAHAM, South Carolina
EVAN BAYH, Indiana ELIZABETH DOLE, North Carolina
HILLARY RODHAM CLINTON, New York JOHN CORNYN, Texas
MARK L. PRYOR, Arkansas JOHN THUNE, South Dakota
JIM WEBB, Virginia MEL MARTINEZ, Florida
CLAIRE McCASKILL, Missouri ROGER F. WICKER, Mississippi
Richard D. DeBobes, Staff Director
Michael V. Kostiw, Republican Staff Director
(ii)
C O N T E N T S
__________
CHRONOLOGICAL LIST OF WITNESSES
The Origins of Aggressive Interrogation Techniques: Part I of the
Committee's Inquiry into the Treatment of Detainees in U.S. Custody
(A.M. Session)
june 17, 2008
Page
Shiffrin, Richard L., Former Deputy General Counsel for
Intelligence, Department of Defense............................ 17
Baumgartner, Lt. Col. Daniel J., Jr., USAF (Ret.), Former Chief
of Staff, Joint Personnel Recovery Agency...................... 17
Ogrisseg, Jerald F., Former Chief, Psychology Services, 336th
Training Group, United States Air Force Survival School........ 21
Beaver, LTC Diane E., USA (Ret.), Former Staff Judge Advocate,
Joint Task Force 170/JTF Guantanamo Bay........................ 64
Dalton, RADM Jane G., USN (Ret.), Former Legal Advisor to the
Chairman, Joint Chiefs of Staff................................ 66
Mora, Alberto J., Former General Counsel, United States Navy..... 67
The Origins of Aggressive Interrogation Techniques: Part I of the
Committee's Inquiry into the Treatment of Detainees in U.S. Custody
(P.M. Session)
june 17, 2008
Haynes, William J., II, Former General Counsel, Department of
Defense........................................................ 110
The Authorization of Survival, Evasion, Resistance, and Escape (SERE)
Techniques for Interrogations in Iraq: Part II of the Committee's
Inquiry into the Treatment of the Detainees in U.S. Custody
september 25, 2008
Moulton, Col. John R., II, USAF (Ret.), Former Commander, Joint
Personnel Recovery Agency...................................... 169
Kleinman, Col. Steven M., USAFR, Former Director of Intelligence,
Personnel Recovery Academy, Joint Personnel Recovery Agency.... 174
Annex A (documents released during June 17, 2008, hearing)....... 202
Annex B (documents released during September 25, 2008, hearing).. 266
(iii)
THE ORIGINS OF AGGRESSIVE INTERROGATION TECHNIQUES: PART I OF THE
COMMITTEE'S INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY
(A.M. SESSION)
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TUESDAY, JUNE 17, 2008
U.S. Senate,
Committee on Armed Services,
Washington, DC.
The committee met, pursuant to notice, at 9:34 a.m. in room
SD-106, Dirksen Senate Office Building, Senator Carl Levin
(chairman) presiding.
Committee members present: Senators Levin, Lieberman, Reed,
Akaka, Bill Nelson, E. Benjamin Nelson, Pryor, Webb, McCaskill,
Warner, Inhofe, Sessions, Collins, Chambliss, Graham, Dole,
Cornyn, Thune, and Martinez.
Committee staff members present: Richard D. DeBobes, staff
director; and Leah C. Brewer, nominations and hearings clerk.
Majority staff members present: Joseph M. Bryan,
professional staff member; Ilona R. Cohen, counsel; Mark R.
Jacobson, professional staff member; Gerald J. Leeling,
counsel; Peter K. Levine, general counsel; William G.P.
Monahan, counsel; and Michael J. Noblet, professional staff
member.
Minority staff members present: Michael V. Kostiw,
Republican staff director; William M. Caniano, professional
staff member; David G. Collins, research assistant; David M.
Morriss, minority counsel; and Dana W. White, professional
staff member.
Staff assistants present: Kevin A. Cronin, Jessica L.
Kingston, Ali Z. Pasha, Benjamin L. Rubin, Brian F. Sebold, and
Breon N. Wells.
Committee members' assistants present: Jay Maroney,
assistant to Senator Kennedy; James Tuite, assistant to Senator
Byrd; Frederick M. Downey, assistant to Senator Lieberman;
Elizabeth King, assistant to Senator Reed; Bonni Berge and
Darcie Tokioka, assistants to Senator Akaka; Christopher Caple,
assistant to Senator Bill Nelson; Andrew R. Vanlandingham,
assistant to Senator Ben Nelson; Jon Davey, assistant to
Senator Bayh; M. Bradford Foley, assistant to Senator Pryor;
Gordon I. Peterson, assistant to Senator Webb; Peg Gustafson,
assistant to Senator McCaskill; Sandra Luff, assistant to
Senator Warner; Anthony J. Lazarski and Nathan Reese,
assistants to Senator Inhofe; Mark J. Winter, assistant to
Senator Collins; Clyde A. Taylor IV, assistant to Senator
Chambliss; Jennifer Olson, assistant to Senator Graham; Lindsey
Neas, assistant to Senator Dole; David Hanke, assistant to
Senator Cornyn; Jason Van Beek, assistant to Senator Thune; and
Erskine W. Wells III, assistant to Senator Wicker.
OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN
Chairman Levin. Good morning everybody.
Today's hearing will focus on the origins of aggressive
interrogation techniques used against detainees in U.S.
custody. We have three panels of witnesses today, and I want to
thank them for their willingness to voluntarily appear before
the committee.
Intelligence saves lives. Knowing where an insurgent has
buried an improvised explosive device (IED) can keep a vehicle
carrying marines in Iraq from being blown up. Knowing that an
al Qaeda associate visited an Internet cafe in Kabul could be
the key piece of information that unravels a terrorist plot
targeting our embassy. But, how do we get people who know the
information to share it with us? Does degrading them or
treating them harshly increase the chances that they'll be
willing to help?
Just a couple of weeks ago, I visited our troops in
Afghanistan. While I was there, I spoke to a senior
intelligence officer who told me that treating detainees
harshly is actually an impediment, a roadblock, to use that
officer's word, to getting intelligence from them. Here's why.
He said that al Qaeda and Taliban terrorists are taught to
expect Americans to abuse them; they're recruited based on
false propaganda that says that the United States is out to
destroy Islam. Treating detainees harshly only reinforces their
distorted view and increases their resistance to cooperate. The
abuse at Abu Ghraib was a potent recruiting tool for al Qaeda
and handed al Qaeda a propaganda weapon that they could use to
peddle their violent ideology.
So, how did it come about that American military personnel
stripped detainees naked, put them in stress positions, used
dogs to scare them, put leashes around their necks to humiliate
them, hooded them, deprived them of sleep, and blasted music at
them? Were these actions the result of a ``few bad apples''
acting on their own? It would be a lot easier to accept if it
were, but that's not the case. The truth is that senior
officials in the U.S. Government sought information on
aggressive techniques, twisted the law to create the appearance
of their legality, and authorized their use against detainees.
In the process, they damaged our ability to collect
intelligence that could save lives.
Today's hearing will explore how it came about that the
techniques called survival, evasion, resistance, and escape
(SERE) training, which are used to teach American soldiers to
resist abusive interrogations by enemies that refuse to follow
the Geneva Conventions, were turned on their head and
sanctioned by Department of Defense (DOD) officials for use
offensively against detainees. Those techniques included use of
stress positions, keeping detainees naked, use of dogs, and
hooding during interrogation.
Some brief background on SERE training. The United States
military has five SERE schools to teach certain military
personnel, whose missions create a high risk that they might be
captured, the skills needed to survive in hostile enemy
territory, evade capture, and escape, should they be captured.
The resistance portion of SERE training exposes students to
physical and psychological pressures designed to simulate
abusive conditions to which they might be subject if taken
prisoner by enemies that may abuse them.
The Joint Personnel Recovery Agency (JPRA) is DOD's agency
that oversees SERE training. JPRA's Instructor Guide states
that a purpose of using physical pressures in training is
``stress inoculation,'' building soldiers' immunities so that
they, should they be captured and be subject to harsh
treatment, are better able to resist.
The techniques used in SERE training can include things
like stripping students of their clothing, placing them in
stress positions, putting hoods over their heads, disrupting
their sleep, treating them like animals, subjecting them to
loud music and flashing lights, and exposing them to extreme
temperatures. It can also include face and body slaps, and
until recently, for some sailors who attended the Navy's SERE
school, it included waterboarding, which is mock drowning.
The SERE schools obviously take extreme care to avoid
injuring our own soldiers. Troops are medically screened to
make sure that they're fit for the SERE course. Prior to the
training, each student's physical limitations are carefully
documented to reduce the chance that the SERE training and the
use of SERE techniques will cause injury.
There are explicit limitations on the duration and
intensity of physical pressures. For example, when
waterboarding was permitted at the Navy SERE school, the
instructor manual stated that a maximum of 2 pints of water
could be used on a student who was being waterboarded, and, if
a cloth was used to cover a student's face, it could stay in
place a maximum of 20 seconds.
SERE training techniques are legitimate and important
training tools. They prepare our forces, who might fall into
the hands of an abusive enemy, to survive by getting them ready
for what might confront them.
Strict controls are also in place during SERE training to
reduce the risk of psychological harm to students.
Psychologists are present throughout SERE training to
intervene, should the need arise, and to talk to students
during and after the training to help them cope with associated
stress.
Those who play the part of interrogators in the SERE school
drama are not real interrogators, nor are they qualified to be.
As the Deputy Commander for the Joint Forces Command (JFCOM)
put it, ``The expertise of JPRA lies in training personnel how
to respond and resist interrogations, not in how to conduct
interrogations.'' Now, that is a fundamental, important
distinction.
Some might say that if our personnel go through it in SERE
school, what's wrong with doing it to detainees? Well, our
personnel are students, and they can call off the training at
any time. SERE techniques are based on abusive tactics used by
our enemies. If we use those same techniques offensively
against detainees, it says to the world that they have
America's stamp of approval. That puts our troops at greater
risk of being abused if they're captured. It also weakens our
moral authority and harms our efforts to attract allies to our
side in the fight against terrorism.
So, how did SERE techniques come to be considered by DOD
for detainee interrogation? In July 2002, Richard Shiffrin, a
Deputy General Counsel in DOD and a witness at today's hearing,
called Lieutenant Colonel Daniel Baumgartner, also a witness
today and then-Chief of Staff at JPRA, which is the agency that
oversees the SERE training, and asked for information on SERE
techniques. In response to Mr. Shiffrin's request, Lieutenant
Colonel Baumgartner drafted a two-page memo and compiled
several documents, including excerpts from SERE instructor
lesson plans that he attached to his memo, saying that JPRA
would ``continue to offer exploitation assistance to those
government organizations charged with the mission of gleaning
intelligence from enemy detainees.'' The memo was hand-
delivered to the General Counsel's Office on July 25, 2002
(Appendix A).
Again, it's critical to remember that these techniques are
not used in SERE school to obtain intelligence, they are to
prepare our soldiers to resist abusive interrogation.
The next day, Lieutenant Colonel Baumgartner drafted a
second memo, which included three attachments (Appendix A). One
of those attachments listed physical and psychological
pressures used in SERE training, including sensory deprivation,
sleep disruption, stress positions, waterboarding, and
slapping. It also made reference to a section of the JPRA
instructor manual that talks about coercive pressures, like
keeping the lights on at all times and treating a person like
an animal. Another attachment, written by Dr. Ogrisseg, also a
witness today, assessed the long-term psychological effects of
SERE training on students, and the effects of the waterboard.
(Appendix A)
This morning, the committee will have a chance to ask Mr.
Shiffrin, Lieutenant Colonel Baumgartner, and Dr. Ogrisseg
about these matters.
On August 1, 2002, a week after Lieutenant Colonel
Baumgartner sent his memo to the DOD General Counsel, the
Department of Justice's (DOJ) Office of Legal Counsel (OLC)
issued two legal opinions. One, commonly known as the first
Bybee Memo, was addressed to the then-White House counsel,
Alberto Gonzales, and provided OLC's opinion on standards of
conduct in interrogation required under the federal torture
statute. The memo concluded that, ``For an act to constitute
torture as defined in the statute, it must inflict pain that is
difficult to endure; physical pain amounting to torture must be
equivalent in intensity to the pain accompanying serious
physical injury, such as organ failure, impairment of bodily
function, or even death. For purely mental pain or suffering to
amount to torture under the federal torture statute, it must
result in significant psychological harm of significant
duration; e.g., lasting for months or even years.''
The other OLC opinion, issued the same day and known as the
second Bybee Memo, responded to a Central Intelligence Agency
(CIA) request and addressed the legality of specific
interrogation tactics. While the interrogation tactics reviewed
by the OLC in the second Bybee Memo remain classified, General
Hayden, in public testimony before the Senate Select Committee
on Intelligence in February, said that the waterboard was one
of the techniques that the CIA used with detainees. Stephen
Bradbury, the current Assistant Attorney General for the OLC,
testified before the House Judiciary Committee earlier this
year that ``CIA's use of water-boarding procedure was adapted
from the SERE training program.''
During the time the DOD General Counsel's Office was
seeking information from JPRA, JPRA staff, responding to a
request from Guantanamo Bay (GTMO), were finalizing plans to
conduct training for interrogation staff from U.S. Southern
Command's (SOUTHCOM) Joint Task Force 170 at GTMO. During the
week of September 16, 2002, a group from GTMO, including
interrogators and behavioral scientists, traveled to Fort
Bragg, NC, and attended training conducted by instructors from
the JPRA SERE school. None of the three JPRA personnel who
provided the training was a trained interrogator.
On September 25, just days after the GTMO staff returned
from that training, a delegation of senior administration
lawyers, including Jim Haynes, General Counsel for DOD; John
Rizzo, acting CIA General Counsel; David Addington, counsel to
the Vice President; and Michael Chertoff, head of the Criminal
Division of the DOJ, visited GTMO. An after-action report
produced by military lawyers after the visit noted that one
purpose of the trip was to receive briefings on intelligence
techniques. (Appendix A)
On October 2, 2002, a week after John Rizzo, the acting CIA
General Counsel, visited GTMO, a second senior CIA lawyer,
Jonathan Fredman, who was chief counsel to the CIA's
Counterterrorism Center, went to GTMO, attended a meeting of
GTMO staff, and discussed a memo proposing the use of
aggressive interrogation techniques. That memo had been drafted
by a psychologist and psychiatrist from GTMO who, a couple of
weeks earlier, had attended that training, given at Fort Bragg
by instructors from the SERE school.
While the memo remains classified, minutes from the meeting
where it was discussed are not. Those minutes clearly show that
the focus of the discussion was aggressive techniques for use
against detainees. (Appendix A)
When the GTMO chief of staff suggested at the meeting that
GTMO ``can't do sleep deprivation,'' Lieutenant Colonel Beaver,
GTMO's senior lawyer, responded, ``Yes, we can, with
approval.'' Lieutenant Colonel Beaver added that GTMO, ``may
need to curb the harsher operations while the International
Committee of the Red Cross (ICRC) is around.''
Mr. Fredman, the senior CIA lawyer, suggested that it's
``very effective to identify detainee phobias, and to use
them,'' and described to the group the so-called wet-towel
technique, which we know as waterboarding. Mr. Fredman said,
``It can feel like you're drowning. The lymphatic system will
react as if you're suffocating, but your body will not cease to
function.'' Mr. Fredman presented the following disturbing
perspective on legal obligations under our anti-torture laws,
saying, ``It is basically subject to perception. If the
detainee dies, you're doing it wrong.'' If the detainee dies,
you're doing it wrong? How on Earth did we get to the point
where a senior U.S. Government lawyer would say that whether or
not an interrogation technique is torture is ``subject to
perception,'' and that if ``the detainee dies, you're doing it
wrong?''
The GTMO senior Judge Advocate General (JAG) Officer
Lieutenant Colonel Beaver's response was, ``We'll need
documentation to protect us.''
Nine days after that October 2, 2002, meeting, General
Dunlavey, the Commander of Joint Task Force 170 at GTMO, sent a
memo to SOUTHCOM requesting authority to use interrogation
techniques, which the memo divided into three categories of
progressively more aggressive techniques. Category 1 was the
least aggressive; category 2 more so, and included the use of
stress positions, exploitation of detainee fears, such as fear
of dogs, removal of clothing, hooding, deprivation of light and
sound; and category 3 techniques included techniques like the
so-called ``wet-towel treatment,'' or waterboard, that was the
most aggressive. (Appendix A)
A legal analysis by GTMO's staff judge advocate, Lieutenant
Colonel Diane Beaver, justifying the legality of the
techniques, was sent with that request. (Appendix A)
On October 25, 2002, General James Hill, the SOUTHCOM
Commander, forwarded General Dunlavey's request to the Chairman
of the Joint Chiefs of Staff (JCS). Nine days later, the Joint
Staff solicited the view of the military Services on the GTMO
request. (Appendix A)
Now, that was October 25. The military Services reacted
strongly against using many of the techniques in the GTMO
request. In early November 2002, in a series of memos, the
Services identified serious legal concerns with the techniques,
and they called urgently for additional analysis.
The Air Force cited, ``serious concerns regarding the
legality of many of the proposed techniques,'' and stated that
``the techniques described may be subject to challenge as
failing to meet the requirements outlined in the military order
to treat detainees humanely.'' The Air Force also called for an
in-depth legal review of the request.
The chief legal advisor to the Criminal Investigative Task
Force (CITF) at GTMO wrote that category 3 techniques and
certain category 2 techniques may, ``subject servicemembers to
punitive articles of the Uniform Code of Military Justice
(UCMJ),'' and called, ``the utility and legality of applying
certain techniques in the request, questionable,'' and stated
that he could not advocate, ``any action, interrogation or
otherwise, that is predicated upon the principle that all is
well if the ends justify the means and others are now aware of
how we conduct our business.''
The chief of the Army's International and Operational Law
Division wrote that techniques like stress positions,
deprivation of light and auditory stimuli, and use of phobias
to induce stress, ``crosses the line of humane treatment,'' and
``would likely be considered maltreatment under the UCMJ, and
may violate the torture statute.'' The Army labeled the request
legally insufficient and called for additional review.
The Navy response recommended a more detailed interagency
legal and policy review of the request, in their words.
The Marine Corps expressed strong reservations, stating
that ``several of the category 2 and category 3 techniques
arguably violate Federal law and would expose our
servicemembers to possible prosecution.'' The Marine Corps said
the request was not ``legally sufficient,'' and, like the other
Services, called for ``a more thorough legal and policy
review.''
Now, while it has been known for some time that military
lawyers voiced strong objections to interrogation techniques in
early 2003 during the DOD Detaining Working Group process,
these November 2002 warnings from the military Services were
expressed before the Secretary of Defense (SECDEF) authorized
the use of aggressive techniques, and were not publicly known
until now.
When the Joint Staff received the military Services'
concerns, Rear Admiral Jane Dalton, then-legal advisor to the
Chairman of the JCS, began her own legal review of the proposed
interrogation techniques, but that review was never completed.
Today, we'll have the opportunity to ask Rear Admiral Dalton
about that.
Notwithstanding concerns raised by the military Services,
DOD General Counsel Jim Haynes sent a memo to Secretary Donald
Rumsfeld on November 27, 2002, recommending that he approve all
but 3 of the 18 techniques in the GTMO request. (Appendix A)
Techniques like stress positions, removal of clothing, use of
phobias, such as fear of dogs, and deprivation of light and
auditory stimuli were all recommended for approval.
Five days later, on December 2, 2002, Secretary Rumsfeld
signed Mr. Haynes' recommendation, adding the handwritten note,
``I stand for 8 to 10 hours a day, why is standing limited to 4
hours?'' (Appendix A).
When Secretary Rumsfeld approved the use of abusive
techniques against detainees, he unleashed a virus which
ultimately infected interrogation operations conducted by the
U.S. military in Afghanistan and Iraq.
Discussions about reverse-engineering SERE techniques for
use in interrogations at GTMO had already prompted strong
objections by the DOD's CITF at GTMO. CITF Deputy Commander
Mark Fallon said that the SERE techniques were ``developed to
better prepare U.S. military personnel to resist
interrogations, and not as a means of obtaining reliable
information,'' and that, ``CITF was troubled with the rationale
that techniques used to harden resistance to interrogations
would be the basis for the utilization of techniques to obtain
information.''
In the week following the Secretary's December 2, 2002,
authorization, senior staff at GTMO set to work drafting a
standard operating procedure (SOP) specifically for the use of
SERE techniques in interrogations. The first page of one draft
of that SOP stated that, ``The premise behind this is that the
interrogation tactics used at U.S. military SERE schools are
appropriate for use in real-world interrogations. These tactics
and techniques are used at SERE school to break SERE detainees.
The same tactics and techniques can be used to break real
detainees during interrogation.'' The draft described how to
slap, strip, and place detainees in stress positions. It also
described hooding, manhandling, and walling detainees.
(Appendix A)
When they saw the draft SOP, the CITF and Federal Bureau of
Investigation (FBI) personnel again raised a red flag. A draft
of their comments on the SOP said that the use of aggressive
techniques only, ``ends up fueling hostility and strengthening
a detainee's will to resist,'' but those objections did not
stop GTMO from taking the next step: training interrogators on
how to use techniques offensively.
On December 30, 2002, two instructors from the Navy SERE
school arrived at GTMO. The following day, in a session with
approximately 24 interrogation personnel, the two demonstrated
how to administer stress positions and various slaps, just like
they do in SERE school.
Around this time, General Hill, the Commander of SOUTHCOM,
spoke to General Miller and discussed the fact that a debate
was occurring over the Secretary's approval of the techniques.
In fact, CITF's concerns had made their way up to then-Navy
General Counsel Alberto Mora, and a battle over interrogation
techniques was being waged at senior levels in the Pentagon.
On January 3, 2003, 3 days after they conducted the
training, the SERE instructors met with Major General Miller,
and, according to some who attended, General Miller stated he
did not want his interrogators using the techniques that the
Navy SERE instructors had demonstrated. That conversation took
place after the training had already occurred, and not all of
the interrogators who attended the training got the message.
Now, 2 weeks earlier, on December 20, 2002, Alberto Mora,
who is a witness here today, had met with DOD General Counsel
Jim Haynes. In a memo describing that meeting, Mr. Mora said
that he told Mr. Haynes that he thought that interrogation
techniques that had been authorized by the SECDEF on December
2, 2002, ``could rise to the level of torture,'' and he asked
them, ``What did deprivation of light and auditory stimuli
mean? Could a detainee be locked in a completely dark cell? For
how long? A month? Longer? What exactly did the authority to
exploit phobias permit? Could a detainee be held in a coffin?
Could phobias be applied until madness set in?'' (Appendix A)
On January 9, Alberto Mora met with Jim Haynes again. This
is 2003, now. According to his memo, Mora expressed frustration
that the Secretary's authorization had not been revoked, and
told Haynes that the policies could threaten Secretary
Rumsfeld's tenure and even damage the presidency.
On January 15, 2003, having gotten no word that the
Secretary's authority would be withdrawn, Mora delivered a
draft memo to Haynes's office stating that, ``The majority of
the proposed category 2 and all of the category 3 techniques
were violative of domestic and international legal norms, and
that they constituted, at a minimum, cruel and unusual
treatment, and, at worst, torture.''
In a phone call, Mora told Haynes that he would be signing
that memo later that day unless he heard definitively that the
use of the techniques was being suspended. In a meeting that
same day, Haynes returned the draft memo and told Mora that the
Secretary would rescind the techniques, which the Secretary did
that day, January 15, 2003.
At the same time that the Secretary did that, he directed
the establishment of a working group to review interrogation
techniques.
What happened next has already become well known. For the
next few months, the judgments of senior military and civilian
lawyers critical of legal arguments supporting aggressive
interrogation techniques were rejected in favor of a legal
opinion from the OLC's John Yoo. The Yoo opinion, the final
version of which was dated March 14, 2003, was requested by Jim
Haynes and repeated much of what the first Bybee Memo had said
6 months earlier. Mr. Mora, who was one of the working group
participants, said that soon after the working group was
established it became evident that the group's report ``would
contain profound mistakes in its legal analysis, in large
measure because of its reliance on the flawed OLC memo.''
In a meeting with Yoo, Mora asked whether the law allowed
the President to go so far as to order torture, and Yoo
responded, ``Yes.''
The August 1, 2002, Bybee memo, again, had said that to
violate the federal anti-torture statute, physical pain that
resulted from an act would have to be ``equivalent in intensity
to the pain accompanying serious physical injury, such as organ
failure, impairment of bodily function, or even death.'' John
Yoo's March 14, 2003, memo stated that criminal laws, such as
the federal anti-torture statute, would not even apply to
certain military interrogations, and that interrogators could
not be prosecuted by the Justice Department for using
interrogation methods that would otherwise violate the law.
One CIA lawyer reporter called the Bybee memo of August
2002 a ``golden shield.'' Combining it with the Yoo memo of
March 2003, the Justice Department had attempted to create a
shield to make it difficult or impossible to hold anyone
accountable for their conduct.
Ultimately, the working group report, finalized in April
2003, included a number of aggressive techniques that were
legal, according to John Yoo's analysis. The full story of
where the working group got those techniques remains
classified. However, the list itself reflects the influence of
SERE. Removal of clothing, prolonged standing, sleep
deprivation, dietary manipulation, hooding, increasing anxiety
through the use of a detainee's aversions, like dogs, and face
and stomach slaps were all recommended. Top military lawyers
and Service general counsels had objected to these techniques
as the report was being drafted. Those who had objected, like
Navy General Counsel Alberto Mora, were simply excluded from
the process, not even told that a final report had been issued.
On April 16, 2003, less than 2 weeks after the working
group completed its report, the SECDEF authorized the use of 24
specific interrogation techniques for use at GTMO. While the
authorization included such techniques as dietary manipulation,
environmental manipulation, and sleep adjustment, it was silent
on most of the techniques in the working group report. However,
the Secretary's memo said that, ``If, in your view, you require
additional interrogation techniques for a particular detainee,
you should provide me, via the Chairman of the JCS, a written
request describing the proposed technique, recommending
safeguards, and the rationale for applying it with an
identified detainee.'' (Appendix A)
Now, how did SERE techniques make their way to Afghanistan
and Iraq? Shortly after the Secretary approved Jim Haynes's
recommendation, on December 2, 2002, the techniques and the
fact that the Secretary had authorized them became known to
interrogators in Afghanistan. A copy of the Secretary's memo
was sent from GTMO to Afghanistan. The officer in charge of the
intelligence section at Baghram Air Field in Afghanistan has
said that, in January 2003, she saw, in Afghanistan, a
PowerPoint presentation listing the aggressive techniques
authorized by the Secretary on December 2, 2002. Documents and
interviews also indicate that the influence of the Secretary's
approval of aggressive interrogation techniques survived their
January 15, 2003, rescission.
On January 24, 2003, 9 days after Secretary Rumsfeld's
rescission, the staff judge advocate for Combined Joint Task
Force (CJTF)-180, Central Command's conventional forces in
Afghanistan, produced an interrogation techniques memo. While
that memo remains classified, the unclassified version of a
report by Major General George Fay stated that the CJTF-180
memo, ``recommended removal of clothing,'' a technique that had
been in the Secretary's December 2, 2002, authorization, and
discussed exploiting Arab fear of dogs, another technique
approved by the Secretary on December 2, 2002.
From Afghanistan, the techniques made their way to Iraq.
According to the DOD Inspector General (IG), at the beginning
of the Iraq war, the special mission unit forces in Iraq ``used
a January 2003 SOP which had been developed for operations in
Afghanistan.'' According to the DOD IG, the Afghanistan SOP had
been ``influenced by the counter-resistance memorandum that the
SECDEF approved on December 2, 2002, and incorporated
techniques designed for detainees who were identified as
unlawful combatants. Subsequent battlefield interrogation SOPs
included techniques such as yelling, loud music, and light
control, environmental manipulation, sleep deprivation
adjustment, stress positions, 20-hour interrogations, and
controlled fear, muzzled dogs.''
Special mission unit techniques eventually made their way
into SOPs issued for all U.S. forces in Iraq. The interrogation
officer in charge at Abu Ghraib obtained a copy of the special
mission unit interrogation policy and submitted it virtually
unchanged to her chain of command as proposed policy for the
conventional forces in Iraq, led at the time by Lieutenant
General Ricardo Sanchez.
On September 14, 2003, General Sanchez issued the first
CJTF-7 interrogation SOP. That policy authorized interrogators
in Iraq to use stress positions, environmental manipulation,
sleep management, and military working dogs to exploit
detainees' fears in interrogations.
In the report of his investigation into Abu Ghraib, Major
General George Fay said that interrogation techniques developed
for GTMO became ``confused and were implemented at Abu
Ghraib.'' Major General Fay said that removal of clothing,
while not included in CJTF-7's procedures, was imported to Abu
Ghraib, and could be traced ``through Afghanistan and GTMO,''
and contributed to an environment at Abu Ghraib that appeared
to ``condone depravity and degradation rather than humane
treatment of detainees.''
Following a September 9, 2004, committee hearing on his
report, I asked Major General Fay whether the policy approved
by the SECDEF on December 2, 2002, contributed to the use of
aggressive interrogation techniques at Abu Ghraib, and he
responded, ``Yes.''
Not only did SERE training techniques make their way to
Iraq, but instructors from JPRA's SERE school followed. The DOD
IG reported that, in September 2003, at the request of the
commander of the Special Mission Unit Task Force, JPRA deployed
a team to Iraq to provide assistance to interrogation
operations. During that trip, SERE instructors were authorized
to participate in the interrogation of detainees in U.S.
military custody. Accounts of that trip will be explored at a
later time, and I'll be sending a letter to DOD asking that
those accounts and other documents relating to JPRA's
interrogation-related activities be declassified.
Major General James Soligan, the Chief of Staff of the U.S.
JFCOM, which is the JPRA's higher headquarters, issued a
memorandum referencing JPRA's support to interrogation
operations. Soligan wrote that, ``Recent requests from the
Office of the Secretary of Defense (OSD) and Combatant Commands
have solicited JPRA support based on knowledge and information
gained through the debriefing of former U.S. Prisoners of War
(POWs) and detainees and their application to U.S. strategic
debriefing and interrogation techniques. These requests, which
can be characterized as offensive support,'' he said, ``go
beyond the chartered responsibilities of JPRA. The use of
resistance to interrogation knowledge for offensive purposes
lies outside the roles and responsibilities of JPRA.''
(Appendix A)
Lieutenant General Robert Wagner, the deputy commander of
JFCOM, has likewise said that, ``Relative to interrogation
capability, the expertise of JPRA lies in training personnel
how to respond and resist interrogations, not in how to conduct
interrogations. Requests for JPRA interrogation support were
both inconsistent with the unit's charter and might create
conditions which task JPRA to engage in offensive operational
activities outside of JPRA's defensive mission.'' (Appendix A)
The DOD IG's report, completed in August 2006, said that
the techniques in Iraq and Afghanistan had derived, in part,
from JPRA and SERE.
Many have questioned why we should care about the rights of
detainees. On May 10, 2007, General David Petraeus answered
that question in a letter to his troops. This is what General
Petraeus wrote, ``Our values and the laws governing warfare
teach us to respect human dignity, maintain our integrity, and
do what is right. Adherence to our values distinguishes us from
our enemy. This fight depends on securing the population, which
must understand that we, not our enemies, occupy the moral high
ground.''
He continued, ``I fully appreciate the emotions that one
experiences in Iraq. I also know firsthand the bonds between
members of the brotherhood of the close fight. Seeing a fellow
trooper killed by a barbaric enemy can spark frustration,
anger, and a desire for immediate revenge. As hard as it might
be, however, we must not let these emotions lead us, or our
comrades in arms to commit hasty, illegal actions. In the event
that we witness or hear of such actions, we must not let our
bonds prevent us from speaking up. Some might argue that we
would be more effective if we sanctioned torture or other
expedient methods to obtain information from the enemy. They
would be wrong. Beyond the basic fact that such actions are
illegal, history shows that they are also frequently neither
useful nor necessary.''
He concludes, ``We are, indeed, warriors. We train to kill
our enemies. We are engaged in combat. We must pursue the enemy
relentlessly, and we must be violent at times. What sets us
apart from our enemies in this fight, however, is how we
behave. In everything we do, we must observe the standards and
values that dictate that we treat noncombatants and detainees
with dignity and respect. While we are warriors, we are also
all human beings.''
Senator Warner has asked Senator Graham to be the acting
ranking member today.
STATEMENT OF SENATOR JOHN WARNER
Senator Warner. That's correct, Mr. Chairman. Senator
Graham is a full colonel in the JAG Corps of the United States
Military Reserve. I collaborated with him and Senator McCain
when we did the Detainee Treatment Act (DTA), and I've asked,
and Senator McCain joined in this, that he represent our side
as the ranking, here this morning and throughout the context of
these hearings.
I would like to say, Mr. Chairman, that we have to look at
this situation in the context of the aftermath of September 11,
when this country was struggling to come to a full recognition
about our vulnerability to attacks such as we experienced on
that fateful day. I think men and women in uniform, as well as
in the civilian community, did everything we could to try and
preserve and protect our great Nation, a nation that is founded
under the rule of law; and there should be no deviation from
that.
I also, Mr. Chairman, draw your attention to the letter
that you received, and the committee, from the counsel for one
of the witnesses today, and in your reply you said, ``On those
rare occasions when a witness believed that he or she should
not answer a question without divulging classified information,
the witness has so informed the committee.'' Could the Chair
advise the committee how we will avail ourselves of such
classified information that the witnesses may possess, at the
same time protecting them?
Chairman Levin. Of course, we would request, if it's
appropriate, that information be declassified, but we cannot
receive classified information at this hearing.
Senator Warner. Absolutely. I see.
Let's also reflect on the fact that in April 2004 through
2006 this committee, recognizing there were problems in this
area, conducted 17 hearings and briefings with regard to
detainee abuse, military commissions, and the new Army Field
Manual. That was largely out of the Abu Ghraib. You and I
worked together on that, Mr. Chairman, and that led to the DTA.
So, I think this committee has a long record, both under
Republican control and Democratic control, to examine this
matter.
Chairman Levin. It is an important tradition, and I'm glad
that you made reference to it, that this committee conduct this
kind of oversight hearing. It is our responsibility, and I am
grateful for your reference to that effort on our part.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
Thank you, to the witnesses, for testifying before us
today.
Let me begin by saying I have made it clear a long time ago
that I believed administration lawyers used bizarre legal
theories to justify harsh interrogation techniques. I've also
been troubled by the fact that they implemented these
procedures over the strenuous objections of military lawyers
and many others with expertise in these areas.
I think our military community, particularly our legal
community, Mr. Chairman, has been saying, ``What about the shoe
on the other foot?'' I don't doubt for one moment what al Qaeda
will do to anyone they capture wearing our uniform. That's not
the issue. We know what they do. As a matter of fact, I saw a
video last night of a Taliban group, showing a 14-year-old
about to slit the throat of one of their captives. Obviously,
the video did not go to conclusion, but that is a bit about who
we're fighting. The question is, how do we beat these people?
Do we behave like them, or do we behave differently? Do we
marginalize them, or do we empower them? I would argue that
anytime that we can be associated with techniques that go down
their road, we're empowering them and marginalizing ourselves.
In this regard, what we're trying to do here today is
important.
Now, the guidance that was provided during this period of
time, I think, will go down in history as some of the most
irresponsible and shortsighted legal analysis ever provided to
our Nation's military and intelligence communities. I do not
believe the members of the administration who played a major
role in developing interrogation policy were motivated by
anything other than a desire to protect our Nation. I know that
to be true, that the men and women in question felt America was
under attack--and we were--and they were motivated to protect
the Nation. That, to me, is clear, and in that regard, their
service is to be appreciated.
However, if the administration had adhered to the letter
and spirit of the law, our treaty obligations, and adequately
consulted with Congress, I do not believe we would be here
today.
It is important that we all understand and agree that the
high ground in this war against Islamic extremism is the moral
high ground. The high ground is often a military term used
where the advantage to those occupying the high ground is
clear, and those below are in a very precarious situation. In
this war, there is no capital to conquer, no air force to shoot
down, no navy to sink. The high ground in this war against
radical Islamic extremism is the moral high ground.
We're not going to conquer this enemy on a battlefield.
There will be no surrender with a white flag. It is truly a
battle of ideas and values. The issues we're going to discuss
today represent a lost opportunity in this war.
I'd like to briefly outline where we were in the aftermath
of the tragic events of September 11, and where we are today,
in terms of the interrogation, detention, and trial of enemy
combatants for war crimes.
Let's face the cold, hard facts. On September 10, 2001,
America was unprepared. We were not ready to fight an enemy
that claimed no country and wore no uniform. We weren't ready
to capture, detain, and interrogate terror suspects who
represent no nation-state and indiscriminately kill civilians
and soldiers alike.
After we invaded Iraq, we underestimated the threat of an
insurgency, and we were slow to adapt to the situation on the
ground. We were ill-equipped to manage Abu Ghraib, and
perplexed by what to do with unlawful combatants in
Afghanistan.
I don't offer our lack of preparation for this long war
against radical Islam as an excuse, but, rather, as the context
in which a series of extraordinarily poor decisions were made
at the Pentagon, DOJ, and the White House with respect to
detainees.
To the great regret of many of us, the administration
pursued a go-it-alone strategy when it came to the treatment
and detention of unlawful enemy combatants. Under the rubric of
the Commander in Chief's inherent authority in a time of war
and armed with the authorization to use military force, which
Congress passed in the days after September 11, the
administration implemented policies that were drafted,
implemented, revised, rescinded, and reissued in an endless
loop.
Interrogation techniques which were supposed to be limited
to GTMO may have migrated to Iraq and Afghanistan. The chaos
was created by administration lawyers' decision to ignore the
advice of our senior military leaders and military lawyers, and
depart from decades of adherence to the Army Field Manual, the
UCMJ, and the Geneva Conventions. It's hard to fathom that our
Nation and the world would have to hear the United States
discuss documents like the Torture Memo.
Eventually, the departure from the time-honored standards
of the Geneva Convention--and they are well known in respect to
rules of restraint--were replaced with a new set of untested
procedures which became dangerously and disastrously confused.
The alleged detainee abuse was the unfortunate result.
Now, this, at Abu Ghraib, was not just a few bad apples.
Clearly, they were people acting on their own inappropriately
in a very perverse fashion regarding detainees. But, I think it
is best to say that Abu Ghraib was a result of system failure.
Mr. Haynes, who will come before the committee today, wrote
in an official document that waterboarding ``may be legally
available'' to the military; never mind the fact that it is
clearly prohibited under the UCMJ.
As a personal aside, Mr. Chairman, one of the great
concerns I've had about this whole process is the legal
exposure that you place men and women in uniform if they go
down this road. The UCMJ could not be more clear when it comes
to the guidelines and guidance provided to those in uniform
regarding detainees.
We have a very clear policy of nonabuse. Why? General
Petraeus said it better than I could. We're trying to be
different than our enemy, and I regret the fact that some of
our military members were giving advice that would expose them
to prosecution if they had followed that advice.
The final report of the working group on interrogation,
convened by Mr. Haynes, reiterated an OLC opinion that, ``In
order to respect the President's inherent constitutional
authority to manage a military campaign, the prohibition
against torture must be construed as inapplicable to
interrogations undertaken pursuant to the Commander in Chief
authority.''
I would just add that these treaties that we're talking
about, the Convention Against Torture (CAT), signed by Ronald
Reagan, has served this country and the world well. Would we
sit on the sidelines if some executive in another country said,
``I have the inherent authority, because my nation is at risk,
to set this treaty aside''? Would we object if some airman were
in the hands of a nation-state and the executive of that nation
said, ``Even though I signed up to the Geneva Convention, I
believe I have the inherent authority to protect my people, to
set it aside, in this case''? If we go down that road, the law
means nothing.
Regarding detention and prosecution of detainees, we follow
a similar pattern. I've fought for years with the
administration to ensure the policies, implemented for
determining who is an enemy combatant and who should be tried
for violation of war crimes, follow the Law of War. Here again,
the administration tried to play cute with the law on evidence
obtained by coercive means and access to classified evidence,
just to name two areas.
I remember very vividly the initial Military Commissions
Act (MCA) would allow the military jury to receive classified
information never shared with the accused. It could be shared
with the defense attorney, but not provided to the accused, on
the theory that it would compromise national security. My
belief has always been, what would we do in a trial in some
foreign land, with a CIA agent or a military member of our
Special Forces or a downed airman, where the trial went forward
and the jury, or the equivalent thereof, was provided
information regarding the innocence or guilt of the American in
question, and they were never allowed to see what they were
charged with or to be able to confront the evidence--what would
we do? I think we would object.
Congress was late in exercising its authority in these
matters, but the key point is that we eventually did. The
passage of the McCain Amendment ensured that this Nation would
not engage in interrogation techniques that constituted cruel,
inhumane, or degrading treatment. The Bush administration
fought Senator McCain on the prohibition, but Congress passed
it overwhelmingly. The McCain Amendment started putting us back
on the road to upholding the best traditions of our Nation and
restoring our standing in the world.
In the same bill, the DTA, the Army Field Manual became the
standard for all DOD interrogations. With the passage of the
MCA, we have ensured that all of our interrogators are fully
compliant with the CAT, Common Article 3 of the Geneva
Conventions, and the War Crimes Statute. The MCA put in place
procedures that our Nation could be proud of when it comes to
prosecuting detainees for war crimes.
I deeply regret that--the Supreme Court ruling providing a
constitutional right of habeas corpus to noncitizen terror
suspects. I think this is a very bad decision for America. I
think the American people are going to be deeply disturbed to
learn that the mastermind of September 11, Khalid Sheikh
Mohammed, has the same constitutional rights as they do. As
Chief Justice Roberts argued in his dissenting opinion, ``So,
who has won? Not the detainees. The Court's analysis leaves
them with only the prospect of future litigation to determine
the content of their new habeas right, followed by further
litigation to resolve their particular cases, followed by
further litigation before the DC Circuit, where they could have
started, had they invoked the DTA procedure. Not Congress,
whose attempt to determine through democratic means how best to
balance the security of the American people with the detainee's
liberty interests has been unceremoniously brushed aside. Not
the Great Writ, whose majesty is hardly enhanced by the
extension to a jurisdictional quirky outpost with no tangible
benefit to anyone. Not the rule of law, unless by that it is
meant the rule of lawyers, who will now arguably have a greater
role than military and intelligence officials in shaping policy
for alien enemy combatants. Certainly not the American people,
who today lose a bit more control over the conduct of this
Nation's foreign policy to unelected, politically unaccountable
judges.''
Unfortunately, the administration did not want to give the
detainees an inch. Congress eventually gave them a few hundred
yards, and now the Supreme Court has given them miles. We have
gone from one extreme to the other.
As long as these investigations go on, I'm confident that
we will continue to find mistakes and uncover more poor policy
decisions. But, the overriding question is, have we learned
from our mistakes? Are we all moving forward on a solid basis?
The answer, in my opinion, is yes. The fact that the legal and
policy decisions made from 2002 to 2005 were based on
inadequate legal analysis, used to justify harsh treatment of
detainees, is not new news to me. I don't think it is new news
to anyone on the committee or anyone who has followed or
reviewed any of the 15 different DOD investigations that had
been launched in the last 5 years or the numerous hearings held
in the House and Senate. This committee alone has had 17
separate briefings and hearings on detainee abuses.
Senator Warner is to be commended to making the difficult
decision to have the committee fully investigate the Abu Ghraib
scandal so that the American people and the world would know
that when this country makes mistakes, it doesn't hide from
them or cover them up.
So, respectfully, Mr. Chairman, we're not breaking new
ground here. The abuses, the inconsistencies, the pattern of
poor judgment in these matters are well-documented. The fact is
that we have come a long way in the past 5 years. Secretary
Rumsfeld is gone. Wolfowitz, Cambone, and Feith are all gone.
John Yoo and Jim Haynes are gone. I look forward to hearing
from the witnesses today. I hope that we can continue to try to
find a way to protect our Nation that recognizes, even though
that we're at war, we must operate within the bounds of the
laws and the treaties that make our Nation strong.
As do you, Mr. Chairman, I appreciate the willingness to
cooperate. I think the country has been well-served by these
hearings, and that we have learned from our mistakes and we
have made adjustments accordingly. In that regard, Congress has
fulfilled it obligations under the Constitution and made us a
stronger nation.
Chairman Levin. Thank you very much, Senator Graham. Your
experience as a military lawyer is an invaluable resource for
this committee and for the country. We're very, very grateful
for you and for it.
Our first panel today consists of Richard Shiffrin, who is
the former Deputy General Counsel for Intelligence at DOD;
retired Lieutenant Colonel Dan Baumgartner, who is the former
chief of staff of the JPRA; and Dr. Jerry Ogrisseg, former
chief of psychology services at the U.S. Air Force Survival
School.
I think, Mr. Shiffrin, that you are going to go first,
followed by Mr. Baumgartner, and then Dr. Ogrisseg. If you have
opening statements, we would welcome them at this time.
Mr. Shiffrin?
STATEMENT OF RICHARD L. SHIFFRIN, FORMER DEPUTY GENERAL COUNSEL
FOR INTELLIGENCE, DEPARTMENT OF DEFENSE
Mr. Shiffrin. Mr. Chairman, members of the committee, I do
not have an opening statement. I am here to answer questions of
the committee and will do my best to recall events that
occurred 5 or 6 years ago.
Chairman Levin. Thank you, Mr. Shiffrin.
Next, we would call upon retired Lieutenant Colonel Dan
Baumgartner.
STATEMENT OF LT. COL. DANIEL J. BAUMGARTNER, JR., USAF (RET.),
FORMER CHIEF OF STAFF, JOINT PERSONNEL RECOVERY AGENCY
Colonel Baumgartner. Thank you, Mr. Chairman. I do have an
opening statement.
Chairman Levin, Senator Graham, and distinguished members
of the committee, thank you for providing me the opportunity at
this hearing to answer the questions the committee may have
relative to interrogation techniques for use with detainees in
U.S. custody. I am currently the acting director and senior
analyst, personnel recovery policy, in the Defense Prisoner of
War Missing Personnel Office, Personnel Recovery Policy
Directorate OSD.
I served on Active Duty as an officer in the United States
Air Force from 1979 to 2003, and from 1990 I was assigned to
the Air Force Survival School. From then until my retirement
ceremony in March 2004, I've served in a variety of capacities
involving the DOD Personnel Recovery Mission. My final
assignment, from 1998 until May 2003, was as the Chief of Staff
to the JPRA.
The JPRA is the United States JFCOM's office of primary
responsibility for the DOD Personnel Recovery Mission.
Personnel Recovery Mission involves a sum of military,
civil, and diplomatic efforts to prepare for and execute the
recovery and reintegration of captured, detained, isolated, or
missing United States personnel who become separated from their
organization while participating in a U.S.-sponsored military
activity or mission outside of the United States, and who are,
or may be, in a situation where they may be isolated,
beleaguered, detained, captured, or having to evade, resist, or
escape.
In accordance with the committee's specific request, I've
provided written testimony about my recollection of any
assistance to interrogators provided by JPRA personnel. The
JPRA commander at the time, and my boss, Colonel Randy Moulton,
had prohibited JPRA personnel from becoming involved in actual
interrogations of detainees, and, as far as I know, JPRA
personnel did not participate in detainee interrogations at any
time prior to my retirement.
In late 2001 or possibly early 2002, intelligence came to
JPRA's attention that might apply to detainee questioning. We
shared the information with the Defense Intelligence Agency
(DIA), because their strategic debriefers would most likely be
called upon for detainee questioning. DIA accepted our offer to
provide briefings to a couple of their deploying groups. I,
myself, did not provide any briefings to DIA personally, but I
believe the DIA groups received briefings centered on
resistance techniques, questioning techniques, and general
information, how exploitation works.
I was also personally provided a 30-minute briefing to the
CITF, located at Fort Belvoir, which worked under the Under
Secretary of the Army. This briefing occurred in 2002. I
provided information on resistance techniques, questioning
techniques, and general information on how exploitation works,
and also JPRA's mission and role in the Department. We also
briefed one other agency.
In addition to this assistance in approximately mid-2002,
Army Lieutenant Colonel Dr. Morgan Banks, the Director of
Psychological Services at Fort Bragg, NC, requested that JPRA
personnel travel to Fort Bragg, NC, to provide briefings to
Army psychologists and other mental-health personnel. That
briefing occurred in September 2002. I coordinated the support,
in terms of scheduling and obligating the JPRA to respond to
Dr. Banks' request.
The briefings were designed to assist the Army in training
Army psychologists and other mental health personnel on what it
would mean to be assigned to duty at GTMO. To my best
recollection, the course had instruction in exploitation,
oversight, and treatment of detainees and staff in a captivity
environment, and what the professional ethical issues might be
for clinical psychologists operating in a captivity
environment.
I also provided written testimony of my recollections of my
communications with the Office of the General Counsel of DOD.
Although I have no personal recollection, I understand, from a
review of the documents, that in December 2001 JPRA provided
the Office of the General Counsel information involving the
exploitation process and historical information on captivity
and lessons learned. That request came from Mr. Richard
Shiffrin.
I do recall that in July 2002, Mr. Shiffrin requested
information from the JPRA about interrogation techniques used
against a United States POW. In response to this request, I
provided some papers on exploitation interrogation and lesson
plans used to train our U.S. personnel on the psychological
aspects of detention, exploitation threats and pressures,
methods of interrogation, and resistance to interrogations.
After a follow-up request for the use of physical
pressures, I provided that additional information, which
consisted of the use of physical pressures in our personnel
recovery training, with information compiled from JPRA experts,
and one paper from the Air Force SERE school psychologist,
Captain and Dr. Jerry Ogrisseg, on the effects of resistance
training.
I followed up with one or two more phone calls to make sure
I had provided the information requested to the Office of the
General Counsel. I do not recall any further communications
with the Office of General Counsel about these issues after the
summer of 2002.
I thank the committee for allowing me to provide an opening
statement, and look forward to your questions.
[The prepared statement of Colonel Baumgartner follows:]
Prepared Statement by Lt. Col. Daniel J. Baumgartner, Jr., USAF (Ret.)
Chairman Levin, Senator McCain, and distinguished members of the
committee. On 27 May 2008, I was requested to voluntarily testify at
today's hearing to discuss issues relating to the committee's inquiry
into the treatment of detainees in U.S. custody. I was informed the
hearing would explore the development, consideration, and approval of
interrogation techniques for use with detainees in U.S. custody. My
testimony today is in response to that request.
In August and September 2007, I was questioned by committee staff
members with respect to my knowledge, while at my final military
assignment as the Chief of Staff, Joint Personnel Recovery Agency
(JPRA), of the matters addressed in the committee's May 27, 2008
letter. In accordance with the committee's specific request, my written
testimony today addresses my recollection of: (a) my communications
with the Office of the General Counsel (OGC) of the Department of
Defense (DOD) relative to [interrogation] techniques for use with
detainees in U.S. custody; (b) my communication with JPRA personnel and
the then-Chief of Psychology Services at the Department of the Air
Force's Air Education and Training Command that resulted from requests
made by the OGC [relative to interrogation techniques for use with
detainees in U.S. custody]; (c) and my knowledge of any assistance to
interrogators provided by JPRA personnel, [relative to interrogation
techniques for use with detainees in U.S. custody].
Before I address these specific questions, it is helpful to provide
some background information about my military career from 1979 until my
retirement in May 2003 (my final day of duty was March 19, 2003).
I graduated from the United States Air Force (USAF) Academy in 1979
and spent my first 11 years in the Air Force flying T-37, C-130, and T-
38 aircraft. In 1990 I was assigned to the USAF Survival School. From
then until my retirement ceremony in March 2003, I served in a variety
of capacities involving the personnel recovery mission. My final
assignment was as Chief of Staff to the JPRA at their headquarters at
Fort Belvoir, VA, from the fall 1998 until my last day of Active Duty
on March 19, 2003. As the Chief of Staff, I was the manager of internal
processes, overseer of internal staff work as the chief ``staff
officer,'' and staff director. While I was aware of many things
involving the JPRA, I was not privy to everything. JPRA directors had
the authority and ability to go directly to the commander and deputy
commander.
The JPRA is the U.S. Joint Forces Command's Office of Primary
Responsibility for the DOD personnel recovery mission and executes the
Commander, United States Joint Forces Command (USJFCOM), Executive
Agent duties with respect to the personnel recovery mission. The JPRA
shapes the planning, preparation, and execution of personnel recovery
for the DOD to enable commanders, individuals, recovery forces, and
supporting organizations to effectively execute their personnel
recovery responsibilities.
``Personnel recovery'' is the sum of military, civil, and
diplomatic efforts to prepare for and execute the recovery and
reintegration of captured, detained, isolated, or missing personnel
from uncertain or hostile environments and denied areas. ``Personnel''
for purposes of the personal recovery mission include United States
military members, DOD civilian employees, or contractor service
employees who are separated from their organization while participating
in a U.S. sponsored military activity or mission outside the U.S., and
are, or may be, in a situation where they may be isolated, beleaguered,
detained, captured or having to evade, resist, or escape.
a. My communications with the OGC of the DOD relative to
[interrogation] techniques:
My recollection of my first communication with OGC relative to
techniques was with Richard Shiffrin in July 2002. However, during my
two interviews with committee staff members last year I was shown
documents that indicated I had some communication with Mr. Shiffrin
related to this matter in approximately December 2001. Although I do
not specifically recall Mr. Shiffrin's request to the JPRA for
information in late 2001, my previous interviews with committee staff
members and review of documents connected with Mr. Shiffrin's December
2001 request have confirmed to me the JPRA, at that time, provided Mr.
Shiffrin information related to this committee's inquiry. From what I
reviewed last year with committee staff members, the information
involved the exploitation process and historical information on
captivity and lessons learned. But, until today, I have never met Mr.
Shiffrin.
With respect to Mr. Shiffrin's July 2002 request, he contacted the
JPRA and asked for information on interrogation resistance techniques
used against U.S. prisoners of war. I asked my Commander, Colonel
Moulton, for approval to support the request, which he granted. I then
passed the request for support to our higher headquarters through
USJFCOM J3 for approval. After USJFCOM approved supporting the request,
I asked our resident JPRA experts for assistance in obtaining the
information Mr. Shiffrin requested. My response memorandum to Mr.
Shiffrin included a couple of papers on exploitation, and interrogation
and lesson plans used to train our U.S. personnel (i.e., potential
isolated personnel) in the psychological aspects of detention,
exploitation-threats and pressures, methods of interrogation, and
resistance to interrogations. After having the package delivered I
believe there were some phone calls between Mr. Shiffrin and me to
clarify parts of the package (I don't recall what the specific
questions were, but essentially they involved follow-up questions about
the material I sent).
A few days later I received another phone call from Mr. Shiffrin
requesting information on the use of physical pressures, which, after
notifying Colonel Moulton, I provided. The information on the use of
physical pressures in our personal recovery training consisted of a
memorandum with information compiled from JPRA experts and one paper
from an Air Force Survival, Evasion, Resistance, and Escape school
psychologist, Captain (Dr.) Jerry Ogrisseg, on the effects of
resistance training. I followed-up with one or two phone calls to make
sure I had provided the information Mr. Shiffrin requested. I do not
recall any further communications with Mr. Shiffrin or other DOD, OGC
personnel about these issues after the July 2002 requests for
information.
b. My communication with JPRA personnel and the then-Chief of
Psychology Services at the Department of the Air Force's Air
Education and Training Command that resulted from requests made
by the OGC
As noted, in response to Mr. Shiffrin's requests for information I
spoke with the then-Chief of Psychology Services at the Department of
the Air Force's Air Education and Training Command, Dr. Jerry Ogrisseg,
about information his office had on the psychological effects on
trainees of resistance training. That communication resulted in our
compiling and sending to Mr. Shriffrin the second memorandum noted
above with some attachments.
c. My knowledge of any assistance to interrogators provided by JPRA
personnel
The JPRA commander prohibited JPRA personnel from becoming involved
in actual interrogations of detainees. As far as I know, JPRA personnel
did not participate in detainee interviews at any time prior to my
retirement.
In late 2001 (or possibly early 2002), intelligence came to the
JPRA's attention that might apply to detainee questioning. We shared
that information with the Defense Intelligence Agency (DIA) because
their strategic debriefers would most likely be called upon for
detainee questioning. DIA accepted our help to provide briefings to a
couple of their deploying groups. I myself did not provide any
briefings to DIA, but I believe the DIA groups received less than a
day's worth of briefings, centered on resistance techniques,
questioning techniques, and general information on how exploitation
works.
I also provided a more limited briefing (about 30 minutes) to the
Criminal Investigation Task Force located at Fort Belvoir, which worked
under the Army. JPRA also briefed one other agency. These organizations
were also briefed on resistance techniques, questioning techniques, and
general information on how exploitation works.
Army Lieutenant Colonel (Dr.) Morgan Banks, the Director of
Psychological Services, at Fort Bragg, NC, also asked the JPRA for
support. I recall the request was to travel to Fort Bragg to provide
briefings to Army psychologists and other mental health personnel,
which occurred in September 2002. I coordinated the support in terms of
scheduling and obligating the organization to respond to Dr. Banks'
request. The briefings were designed to assist the Army in training
Army Psychologists and other mental health personnel on what it would
mean to be assigned to duty at Guantanamo Bay. To my best recollection,
the course had instruction in exploitation, oversight and treatment of
detainees and staff in a captivity environment, and what the
professional ethical issues might be for clinical psychologists
operating in a captivity environment.
I thank the committee for allowing me to provide this written
testimony in response to the committee's request and look forward to
answering your questions.
Chairman Levin. Thank you.
Mr. Ogrisseg? Or, Dr. Ogrisseg, excuse me.
STATEMENT OF JERALD F. OGRISSEG, FORMER CHIEF, PSYCHOLOGY
SERVICES, 336TH TRAINING GROUP, UNITED STATES AIR FORCE
SURVIVAL SCHOOL
Dr. Ogrisseg. Thank you, sir.
Mr. Chairman and members of the committee, thank you for
allowing me to appear before you today. Before testifying, I
want to provide some background information about me.
I received my bachelor's of science degree from The Ohio
State University, and my master's and Ph.D. degrees in clinical
psychology from Bowling Green State University in Ohio. I
joined the Air Force in 1995, and I went through residency
training in psychology at Wilford Hall Medical Center in San
Antonio, TX. I then served as a clinical psychologist in Air
Force behavioral health clinics at Lackland Air Force Base and
Onizuka Air Station in California. In those positions, I
provided a wide range of basic psychological services.
I then served as the SERE psychologist for the United
States Air Force Survival School at Fairchild Air Force Base in
Washington from February 4, 1999, to July 28, 2002. There, I
was the commander's representative for all psychological
aspects of training. My primary purpose was to safeguard the
integrity of the training by providing risk management
oversight of training activities and to conduct research to
address questions of training effectiveness and training risk.
I separated from Active Duty service at the grade of major
in 2002 to accept a civilian position with the JPRA. I serve,
currently, as the SERE research psychologist for the JPRA,
where I've been assigned since July 29, 2002. In that capacity,
my job is to conduct research, conduct operational release
handling of recovered, returned, and repatriated U.S.
personnel, and to recommend policies in these areas. I also
provide expert knowledge in human decisionmaking, behavioral
adaptation, learning in stressful environments, learned
helplessness, and learning to enhance human resiliency. I chair
an international research panel on survival psychology through
the Human Resources and Performances Group of the Technical
Cooperation Program, which includes fellow survival
psychologists from Australia, Canada, New Zealand, the United
Kingdom, and the United States.
Thank you for the opportunity to speak with you today, and
I look forward to answering any questions you have.
[The prepared statement of Dr. Ogrisseg follows:]
Prepared Statement by Dr. Jerald Ogrisseg
Mr. Chairman and members of the committee, thank you for allowing
me to appear before you today. My testimony will address my July 2002
communications with the Chief of Staff of the Joint Personnel Recovery
Agency (JPRA) relating to interrogations and resistance training
techniques, my July 24, 2002 memorandum ``Psychological Effects of
Resistance Training,'' and the role of Survival, Evasion, Resistance,
and Escape (SERE) psychologists, and the use of physical and
psychological pressures in resistance training for U.S. soldiers.
First, I want to provide some personal background information. I
received my Bachelor's of Science degree from The Ohio State University
and my Masters and Ph.D. degrees in clinical psychology from Bowling
Green State University in Ohio. I joined the Air Force in 1995. I went
through residency training in psychology at Wilford Hall Medical Center
in San Antonio, TX. I then served as a clinical psychologist in Air
Force Behavioral Health clinics at Lackland Air Force Base and at
Onizuka Air Station. In those positions, I provided a wide range of
basic psychological services. I then served as the SERE Psychologist
for the United States Air Force Survival School at Fairchild Air Force
Base, WA, from 4 February 1999 to 28 July 2002. There I was the
Commander's representative for all psychological aspects of training.
My primary purpose was to safeguard the integrity of training by
providing risk management oversight of training activities, and to
conduct research to address questions of training effectiveness and
training risk. I separated from active duty service at the grade of
major in 2002 to accept a civilian position with the JPRA. I serve
currently as the SERE Research Psychologist for the JPRA where I have
been assigned since 29 July 2002. In that capacity, my job is to
conduct research, operational release handling of recovered, returned,
and repatriated U.S. personnel, recommend policies in these areas, and
provide expert knowledge in human decisionmaking, behavioral
adaptation, learning in stressful environments, learned helplessness,
and learning to enhance human resiliency. I also Chair an international
research panel on Survival Psychology through the Human Resources and
Performance Group of the Technical Cooperation Program which includes
fellow survival psychologists from Australia, Canada, New Zealand, the
United Kingdom, and the United States. This panel was recognized by
each of those countries with a team achievement award for creating and
demonstrating the effectiveness of a selection program for Resistance
Training instructors which served to select appropriate people to
become instructors and thereby mitigate training risks.
Mr. Chairman, with regards to my July 2002 communications with then
Lt. Col. Dan Baumgartner, the then Chief of Staff of JPRA, my
recollection is that Lieutenant Colonel Baumgartner called me directly,
probably on the same day that I generated my 24 July 2002 memorandum
that I referenced earlier. He indicated that he was getting asked
``from above'' about the psychological effects of resistance training.
I had no idea who was asking Lieutenant Colonel Baumgartner ``from
above'' and did not ask him to clarify who was asking. I recall
reminding Lieutenant Colonel Baumgartner in general terms about program
evaluation data I'd presented in May of 2002 at the SERE Psychology
Conference. These data, which were collected on Air Force survival
students at different points of time during training, indicated that
training significantly improves students confidence in their ability to
adhere to the Code of Conduct.
Then, I recall Lieutenant Colonel Baumgartner asking me if I
thought training was harmful to students. This question and my
responses to it formed the basis of my 24 July 2002 memorandum to
Lieutenant Colonel Baumgartner, which is the best record of the
conversation that we had. In general terms, I indicated that a very
small percentage of students (4.3 percent) had adverse psychological
reactions to our training, but we (the survival psychology staff) were
able to remotivate almost all of those having adverse reactions (96.8
percent) to complete training. Thus, less than .2 percent of the
roughly 14,000 students were unable to complete training due to
psychological problems which arose during training. The exact numbers I
cited in the memorandum were retrieved from the annual risk reports we
kept. In order to ensure that our program was safe and effective, I
also told Lieutenant Colonel Baumgartner that students received three
debriefings during training, two of which were conducted by the
Psychology Services staff, and that the other was a detailed, thorough
operational debriefing. These debriefings normalized the students'
performance and reactions during training, and reinforced the training
objectives to increase their skill and confidence. As an additional
point on this question, I indicated that very few complaints were made
following training. These indicators combined led me to conclude that
long-term negative effects of training are likely minimal. I did
caveat, however, that we did not routinely survey students in the years
following training to confirm this conclusion.
Finally, as indicated in my 24 July 2002 memorandum, Lieutenant
Colonel Baumgartner asked me if I'd ever seen the waterboard used, and
what I thought of it. I told him that I had seen it used while
observing Navy training the previous year, and that I would never
recommend using it in training. He asked me why and if I thought it was
physically dangerous. I responded that I didn't see anyone getting
physically injured when I observed it, and as stated in my memorandum,
the Navy was applying it to medically screened trainees with medical
personnel immediately available to monitor and intervene if necessary.
However, that wasn't the point, as psychologically the waterboard
produced capitulation and compliance with instructor demands 100
percent of the time. During debriefings following training, students
who had experienced the waterboard expressed extreme avoidance
attitudes such as a likelihood to further comply with any demands made
of them if brought near the waterboard again. I told Lieutenant Colonel
Baumgartner that waterboarding was completely inconsistent with the
stress inoculation paradigm of training that we used, and was more
indicative of a practice that produces learned helplessness--a training
result we tried strenuously to avoid. The final area I recall
Lieutenant Colonel Baumgartner asking me about were my thoughts on
using the waterboard against the enemy. I asked responded by asking,
``wouldn't that be illegal?'' He replied that some people were asking
from above about the utility of using this technique against the enemy
for the same reasons I wouldn't use it in training. I replied that I
wouldn't go down that path because, aside from being illegal, it was a
completely different arena that we in the Survival School didn't know
anything about. When we concluded the talk, Lieutenant Colonel
Baumgartner asked if I would write him a memo reflecting what we'd just
discussed regarding the psychological effects of training so he could
include it with other materials he was sending up. He also asked if I
would comment on both the physical and psychological effects of the
waterboard. I replied that I would, and drafted the memo.
Mr. Chairman, with regards to the role of SERE psychologists, as I
mentioned earlier, the intent is to provide expert knowledge and
research to advise the commander in order to prevent in-role behavioral
drift or role creep within the training, prevent moral disengagement of
staff while providing training, and maintain the effectiveness of
training within a stress inoculation-based approach. These aims are
accomplished through: psychologically screening instructors; training
instructors and out-of-role supervisors on indicators of behavioral
drift and moral disengagement, and associated preventative actions;
immediately conducting incident reviews following any adverse training
events; and advising on administrative or retraining actions when
indicated.
Mr. Chairman, physical and psychological pressures are used in
resistance training for several reasons. Historically, coercive
pressures have been used against U.S. soldiers in numerous captivity
situations. Including simulated physical and psychological stresses to
our training adds more realism and effectiveness to the training.
Additionally, in the realm of the training science world, simulated
physical and psychological stresses would be recognized during the task
analysis as some of the conditions under which the resistance skills
must be applied. The overall goal is to instill good habits in trainees
and the ability to think clearly and solve problems during repeated
exposure to stressful situations to ensure that performance does not
degrade under stress.
In SERE resistance training, physical and psychological pressures
consist of contact with a student, as well as use of threats and ploys
that are designed to test the students' resistance. The pressures are
designed to cause some physical and emotional discomfort. These
pressures are definitely not designed to cause injury or anything other
than minor, temporary irritation. All pressures are reviewed by medical
and psychological staff before they are used to ensure that a good
margin of physical and psychological safety exists when they are used,
and to limit their use on personnel with pre-existing medical and
psychological concerns. Additionally, when physical pressures are used,
the use is continuously monitored by multiple levels of out of role
school personnel to ensure that the pressures are used within
established limits. The psychological purpose of physical and
psychological pressures at the Air Force Survival School was always to
enhance student decisionmaking, resistance, confidence, resiliency, and
stress inoculation, and not to break the will of the students or to
teach them helplessness.
In conclusion Mr. Chairman, let me emphasize again that the purpose
of our training of U.S. military personnel is to increase their level
of confidence that they can survive captivity and interrogation
situations, comply with the Code of Conduct, and return with the least
amount of physical and psychological damage. Our basic concept for this
training is that if a servicemember has met the types of interrogation
conditions even once before, they will begin to be familiar with them
and thus more able to cope with an otherwise extremely stressful and
confusing situation. Although there are many sacrifices and harrowing
circumstances that our soldiers, marines, sailors, and airmen are
called to task to face, I can think of none more amazing and confusing
than being held captive by your enemy. I believe we have a moral
obligation to provide our personnel this training. Through our
training, we prepare our Nation's best for the worst, so that if they
fall into the hands of the enemy, they can see that situation through
the lens of an experience that they've already dealt with
successfully--providing them with hope and courage to survive and
return with honor.
Thank you for the opportunity to speak with you today. I look
forward to answering any questions you may have.
Chairman Levin. Let's start with an 8-minute round.
Let me start with you first, Mr. Shiffrin. When you were
the Deputy General Counsel for Intelligence for the DOD, I
understand you had some discussions with the DOD General
Counsel, Jim Haynes, about interrogations in the spring or
summer of 2002. Is that correct?
Mr. Shiffrin. That's correct, Mr. Chairman.
Chairman Levin. Did you talk about SERE during those
discussions?
Mr. Shiffrin. My recollection, Mr. Chairman, is that, at
some point in the spring--late spring, early summer--I had some
discussions with Jim Haynes about where expertise might lie,
within the DOD, on interrogation. The sense that I and others
had was that DOD had been out of this business for a long, long
time, at least since the Vietnam war, and that there wasn't a
skilled cadre of investigators/interrogators outside of the law
enforcement context, the Air Force Office of Special
Investigations and Naval Criminal Investigative Service or Army
Criminal Investigation Division (CID). I think those folks, at
least Army CID, were already being used for their expertise in
trying to develop effective interrogation methods.
I don't know whether Mr. Haynes suggested trying to contact
the SERE JPRA folks or whether I--and I was aware of JPRA
through some of my other work--said, ``Well, maybe the folks at
JPRA have some information. There has to be some scholarly
professional literature on the subject, and perhaps they have
some.''
Chairman Levin. Is that what he said?
Mr. Shiffrin. No, I think I said----
Chairman Levin. All right.
Mr. Shiffrin.--at least that part, about finding historical
scholarly, professional journals, medical journals,
psychological journals that may be in existence. I assumed that
this stuff was still actively being investigated, analyzed,
pursued by professionals.
Chairman Levin. Was it after those discussions with Mr.
Haynes that you talked to Colonel Baumgartner?
Mr. Shiffrin. I don't remember who I contacted at Fort
Belvoir.
Chairman Levin. Did you talk with Colonel Baumgartner after
you had discussions with Haynes?
Mr. Shiffrin. I talked to someone at Fort Belvoir in JPRA,
yes.
Chairman Levin. You don't know that it was Colonel
Baumgartner.
Mr. Shiffrin. The name--it could have been.
Chairman Levin. All right.
Mr. Shiffrin. I'm not suggesting it wasn't.
Chairman Levin. Do you--
Mr. Shiffrin. I think I talked to two people.
Chairman Levin. You're saying that you can't remember
whether or not those requests that you had, or the
conversations with folks at JPRA, were based on Jim Haynes's
request to you. You don't remember that.
Mr. Shiffrin. Oh, no, I think they were initiated by that.
Chairman Levin. Oh.
Mr. Shiffrin. As to whether specifically he said, ``Contact
JPRA,'' I don't know. He may have said, ``Can you think of
anyone who might have information on this subject?''
Chairman Levin. Gotcha. Was this effort because there was
some frustration with the lack of intelligence that was coming
up?
Mr. Shiffrin. That's the sense I got, not just from that
discussion, but in previous meetings I was at, that I attended,
generally, of our office, where there was discussion about
progress or lack of progress in exploitation of detainees.
Chairman Levin. Now, Colonel Baumgartner, in your written
testimony you say that Mr. Shiffrin called and asked you, in
July 2002, for information on the use of physical pressures in
SERE training. Is that correct? Your written testimony says
that.
Colonel Baumgartner. Yes, sir.
Chairman Levin. In response, you sent to Mr. Shiffrin a
list of physical pressures, including stress positions,
walling, degradation, sensory deprivation, and waterboarding.
You also sent him a memo from Dr. Ogrisseg about the
psychological effects of that training. Is that correct?
Colonel Baumgartner. Yes, sir.
Chairman Levin. Now, if you look at tab 2, was that your
memo that you sent to the General Counsel's office? (Appendix
A)
Colonel Baumgartner. Yes, sir.
Chairman Levin. Was, attached to that memo, some
attachments, the ones that appear at tabs 3 and 4? [Pause.]
Colonel Baumgartner. Well, there are actually three tabs,
but these two were----
Chairman Levin. Those two were two of the attachments----
Colonel Baumgartner. Yes, sir.
Chairman Levin. Is that correct? The first attachment, in
number 4 was the Ogrisseg memo that you had obtained from Dr.
Ogrisseg. Is that correct?
Colonel Baumgartner. Yes, sir. Number 4 was from Dr.
Ogrisseg.
Chairman Levin. All right. Now, tab 3 is a memo entitled
``Physical Pressures Used in Resistance Training and Against
American Prisoners and Detainees,'' is that correct? That's tab
3? (Appendix A)
Colonel Baumgartner. Yes, it's a talking paper.
Chairman Levin. But, is that the title of it?
Colonel Baumgartner. Yes, sir.
Chairman Levin. All right, let me just turn to Dr.
Ogrisseg, here.
In your prepared testimony, Dr. Ogrisseg, this is what
you've said, that--with regards to that July 2002 communication
with Colonel Baumgartner, who was then chief of staff for JPRA,
it was your recollection that Colonel Baumgartner called you
directly, probably on the same day that you generated that July
24, 2002, memorandum; he indicated he was getting asked, ``from
above,'' about the psychological effects of resistance
training. You didn't know who was asking Lieutenant Colonel
Baumgartner from above, and did not ask him to clarify who was
asking. You recalled reminding Colonel Baumgartner, in general
terms, about the program evaluation data that you had presented
at the SERE Psychology Conference, and you also indicated, on
page 4 of your written testimony, that you told Colonel
Baumgartner that ``waterboarding was completely inconsistent
with the stress inoculation paradigm of training that we use;
it was more indicative of a practice that produces learned
helplessness, a training result that we tried strenuously to
avoid. The final area I recall Colonel Baumgartner asking about
were my thoughts on the use of the waterboard against the
enemy.'' You responded by saying, ``Wouldn't that be illegal?''
He replied that ``Some people were asking, from above, about
the utility of using this technique against the enemy, for the
same reasons I wouldn't use it in training.'' ``I replied, `I
wouldn't go down that path, because, aside from being illegal,
it was completely different arena that we in survival school
didn't know anything about.' '' Is that your written testimony?
Dr. Ogrisseg. Yes, that is.
Chairman Levin. Is that accurate?
Dr. Ogrisseg. Yes, sir.
Chairman Levin. Colonel Baumgartner, do you remember that?
Colonel Baumgartner. Yes, sir, I do.
Chairman Levin. Now, if you look at tab 4, Dr. Ogrisseg,
you agree that is your memo? (Appendix A)
Dr. Ogrisseg. Yes, Mr. Chairman, that is my memo.
Chairman Levin. All right. Now, as I understand it, the
purpose of SERE training is stress inoculation, or to build up
immunities of American military personnel so that, if they
should be captured and subject to illegal and abusive
treatment, they'd be better prepared to resist. During that
training, that SERE training, there are numerous safety
measures in place to reduce the likelihood that our people will
be injured. Is that correct?
Dr. Ogrisseg. Yes, sir.
Chairman Levin. Are the physical and psychological
pressures, which are designed for use in SERE school for
training students, intended to be used against detainees to
obtain intelligence?
Dr. Ogrisseg. No, Mr. Chairman.
Chairman Levin. Why not?
Dr. Ogrisseg. Those techniques are derived from what has
historically happened to our personnel who have been detained
by the enemy. From those, we derived some learning objectives
and some situations to put students through so that we can test
their decisionmaking-building, and also use some of those
strategies to increase their resistance and the confidence that
they would be able to survive if they are subjected to them.
It's not the same at all as something that would be applied in
an interrogation setting.
Chairman Levin. Now, during the resistance phase of
training, where SERE school instructors play the role of
interrogators, is there a way--a phrase that you give to
students which they could use to make the training stop?
Dr. Ogrisseg. Yes, sir.
Chairman Levin. Are SERE instructors trained interrogators?
Dr. Ogrisseg. No, they are not, Mr. Chairman.
Chairman Levin. Do you know why you were being asked for
the information by Colonel Baumgartner?
Dr. Ogrisseg. I assumed it was related to questioning, just
as the title says, the psychological effects of resistance
training.
Chairman Levin. But, do you know why he was asking you? Did
he say anything about higher-ups?
Dr. Ogrisseg. He did. As I said in my written statement, he
said that he was being asked from above about that matter. But,
I did not question him further as to who was asking him, or
why.
Chairman Levin. Do you remember saying that, Colonel
Baumgartner?
Colonel Baumgartner. Yes, sir.
Chairman Levin. Who was ``above''?
Colonel Baumgartner. The Office of General Counsel.
Chairman Levin. All right. Did you know, Dr. Ogrisseg, that
they were considering using these techniques against detainees
when you sent this information?
Dr. Ogrisseg. The only hint of that, that I got, was the
question from Lieutenant Colonel Baumgartner, that someone was
asking about it. I certainly never would have assumed, based on
my memo, which clearly pertains to medically screened,
medically monitored trainees, that there would be inferences
about this that would be used to try to promote these types of
procedures in real-world detainee handling.
Chairman Levin. So, you did not believe, when you sent this
memo, that--what you said about the lack of psychological harm,
given the controls there, that these techniques would be used
against detainees?
Dr. Ogrisseg. That's correct.
Chairman Levin. Okay, thank you.
Senator Graham.
Senator Graham. Mr. Shiffrin--is that right? Am I saying
your name right?
Mr. Shiffrin. Yes, Senator.
Senator Graham. Thank you. It was my understanding that Mr.
Haynes was expressing some concern that we were not getting
good intelligence based on rapport-building techniques, and
that we had to do something new and different. Is that correct?
Mr. Shiffrin. I'm not sure, specifically, Senator. My
recollection is, over a period of time, weeks or months, I was
privy to--or attended meetings where the discussion was
progress, or lack of progress, in the exploitation of
detainees. I remember attending at least two or three meetings
with Major General Dunlavey, for example, when he would come
up. He came up once every month or two, briefed the Secretary,
briefed the Deputy Secretary, and briefed the General Counsel,
in separate meetings. I, along with five or six other members
of our office, attended those meetings. During those meetings,
there was often discussion about what was working, what wasn't
working, at GTMO. There was a general sense that we ought to be
more effective, but, for some reason, were not.
Senator Graham. So basically, this was driven by a desire
to get better information from the detainees at GTMO, and the
feeling was that, ``We're not getting enough, something else
needs to be tried.'' Is that the general proposition here?
Mr. Shiffrin. Something else needed to be tried. My sense
was that maybe we're not smart about this, and that's why my
first request to JPRA was for all historical materials they had
that--of what worked and what didn't work. In fact, I have a
specific recollection of being told, by the person I spoke to
on the phone, that we have this information, we have a library,
but--it's at Fairchild Air Force Base, near Spokane--and it was
going to take some time to get it. I, of course--the way our
office ran, it--Jim Haynes asked me to look in to this, and, a
few hours later or the next day, said, ``Well, what have you
got?'' and I said, ``I've found where some material lies, but
it's 3,000 miles away and it's going to take more than a day to
get here,'' and he said, ``that's not good enough.'' I probably
called back to Fort Belvoir and said, ``Gee, I'm under pressure
to get this material here as quickly as possible.'' I think,
within 4 or 5 days, two members, is my recollection, drove up
from Fort Belvoir with several boxes of materials. I think they
occupied 2 or 3 board feet on my shelf in my small office. I
went through them. Ninety-eight percent of it was from the
1950s, post-Korean-War studies, professional journals,
articles, analysis of the experience of our servicemen in
Korea.
Senator Graham. Okay.
Colonel Baumgartner?
Colonel Baumgartner. Yes, Senator.
Senator Graham. Do the techniques we're talking about work?
Colonel Baumgartner. In what frame of reference, sir?
Senator Graham. Getting intelligence?
Colonel Baumgartner. I'm not an intelligence officer, sir,
I don't know. But, they work in our training process, to
demonstrate to students how to resist somebody getting
intelligence from you. That's what they're for.
Senator Graham. So, you don't have an opinion as to whether
or not they yield good information.
Colonel Baumgartner. I don't, sir. I wasn't there.
Senator Graham. Doctor, do you have an opinion about----
Dr. Ogrisseg. Senator, my expertise comes in the realm of
training, and I certainly know that these techniques are
effective in getting our trainees to learn the skills and
develop the confidence that we need to in order to survive and
return with honor from captivity.
Senator Graham. Based on your studies of this subject
matter, is it fair to say that you can get almost anybody to
say anything if you're hard enough on them over time?
Dr. Ogrisseg. I would say that that's true, but that's also
the problem. You could get them to say anything.
Senator Graham. Thank you.
Chairman Levin. Thanks.
Senator Lieberman.
Senator Lieberman. Thanks, Mr. Chairman.
Let me first thank you and the staff of the committee for
an extraordinary exercise in governmental oversight,
congressional oversight, of a very important topic with an
exhaustive and, I think, important investigation that you've
done. I want to thank you and Senator Graham for your
outstanding opening statements.
This is one of those cases where hindsight is always the
clearest kind of sight, but, nonetheless, it's important to
look back so that we can learn from what's happened in the
past.
I would start by echoing what Senator Levin said at the
beginning of his remarks, which is that the members of this
committee know that intelligence gathered from detainees is
critical to our success, our safety, and the safety of our
troops and our allies in the war against--with Islamic
terrorists. We've had more than one commander, particularly
from Iraq or Afghanistan, tell us that information gained from
detainees is the most significant form of intelligence, still,
that we obtain in order to confront the enemy that we're facing
in Iraq and Afghanistan and throughout the world. So, this is
an important matter.
But, obviously, we're a nation, as my colleagues have said,
and I need belabor it, that is a nation of law; and therefore,
to me, the standard that we have to hold up in our attempts to
obtain information from detainees is, is it legal, and is it
effective? In other words, does it produce information that is
helpful, or does it have other effects, and might it produce,
as Dr. Ogrisseg said in response to Senator Graham, information
that's not truthful, or, in the larger context, as we've seen
after Abu Ghraib, might it affect our standing, generally, in
our effectiveness of the war on terrorism?
I remember, once, being with Senator McCain and Senator
Graham, meeting at Camp Bucca in Iraq--which is a large
detention center--meeting a former member of al Qaeda in Iraq
who said that one of the reasons he was motivated to join al
Qaeda in Iraq was what he heard had happened at Abu Ghraib. So,
this is important stuff.
What I find in this story, that the investigation of the
committee has revealed in hindsight, is, looking back, some
people who acted in ways, I assume well-motivated, that look
now like they were wrong, and some people who said some things
which, in hindsight, are jarring and unacceptable. The comment,
``If the detainees die, you're doing it wrong,'' with regard to
waterboarding is not, obviously, what any of us want to hear
from anybody working for the United States Government. Even
Secretary Rumsfeld's statement, which--it's hard to read with
certain clarity, but it certainly has an edge to it that seems
to be unacceptable, about how long the detainees could be
forced to stand, him saying, ``I stand, what, 8 to 10 hours a
day. Why are they only forced to stand 4 hours a day?'' That's
not really what this is about.
But, there are heroes that emerged from this. Chairman
Levin's statement of the record of the investigation shows
that. The lawyers for the military Services spoke up quite
clearly--I think--I presume both from a context of law and of
effectiveness of the interrogation of detainees. Mr. Mora is
obviously, in hindsight, a hero, here, who acted in the best
traditions of American law and military.
I want to go to my questions now, and begin--because
there's a lot to learn with--in hindsight.
Mr. Shiffrin, at the beginning, in your brief answer to
Chairman Levin's first question, you began to answer a question
that I had, which was, why in the world would we have gone to
the people training--the SERE group training--preparing our
military for the kind of harsh interrogation techniques that
the enemy might impose on them, to find out what we might do?
My own question to myself was, why weren't we prepared,
ourselves? I want to ask you to deal with that again. In other
words, the Pentagon is a vast operation--we have a lot of
military lawyers, we have a lot of people with previous or
present prosecutorial experience, interrogation experience, we
have a lot of psychologists--I take it from what you're saying
that we really weren't ready to deal with these detainees. I
wanted to ask you to comment on that, as to why you went to the
folks at SERE to ask for their help.
Mr. Shiffrin. As I stated, Senator, my recollection is, the
primary motivation for my initial inquiry was to find the font
of wisdom on the subject, that there had to be some place where
we had all the learning on this, because we hadn't been able to
find people within the Pentagon and within the Services who
were experienced in conducting interrogations outside of the
criminal justice area.
The second--I can't deny that there was probably some
discussion, at some point, about reverse-engineering SERE
techniques. I don't know where it came from, but it seemed to
me that that was another part of this. When I answered the
earlier question, I guess from Senator Graham, I said that,
``Well, the first tranche was this historical stuff from the
1950s.'' I think Mr. Haynes came back to me and said, ``No, no,
this isn't what I'm looking for.'' In fact, I think at the end
that stuff sat on my shelf for several months, and I don't know
if anyone else looked at it besides me--but, I remember, at the
time of my leaving the General Counsel's Office, I called down
to Fort Belvoir and said, ``You guys better come and get this
back, because a lot of it is original material.''
Senator Lieberman. Let me ask you this question. Did you
ever call, or, as far as you know, did anybody in the General
Counsel's Office at the Pentagon ever call, for instance, the
interrogation experts at the DIA or the Army's interrogation
school?
Mr. Shiffrin. Not to my knowledge.
Senator Lieberman. How about any of the folks--I know,
later on, people in criminal investigations within the Pentagon
got involved in the discussion, particularly through the
military Services, but did anybody in the General Counsel's
Office ever think to call people in criminal intelligence about
interrogation tactics that worked?
Mr. Shiffrin. I do recall Army CID being involved. I can't
give you a precise timeframe, but I recall, fairly early on,
some participation by Army CID.
Senator Lieberman. How about reaching out to prosecutors in
the civilian sector who do a lot of interrogating, or police
officers who have developed techniques? Now, obviously,
criminal defendants in U.S. courts have more constitutional
protections than detainees, at least prior to the decision of
the Supreme Court last week, but did anyone at General
Counsel's Office at the Pentagon ever reach out to law
enforcement in the United States?
Mr. Shiffrin. Not to my knowledge. I think that would have
been inconsistent with the way the Pentagon acted under
Secretary Rumsfeld.
Senator Lieberman. Dr. Ogrisseg, one last question, because
my time really is running. At any point, did anyone ask you, or
did you understand that the questions you were being asked from
Lieutenant Colonel Baumgartner, who was, in turn, responding to
the General Counsel's Office, about your judgment as a mental
health professional about the effectiveness of the techniques
that you were listing--not to train our people, but to elicit
evidence from detainees?
Dr. Ogrisseg. Mr. Senator, the only questions that I was
really asked about this pertained to the memo that I had
written in 2002 which is part of the record here, and at some
point----
Senator Lieberman. So, in that memo you did not feel that
you had to make a judgment or offer your professional judgment
about how effective these techniques might be in eliciting
testimony from--or information from the detainees.
Dr. Ogrisseg. No, I felt like, in the discussion with
Lieutenant Colonel Baumgartner, that I indicated, one of my
ethical issues as a psychologist, since I'm not a legal
practitioner, not a judge, not a lawyer, but with regards to
ethics within my field--that one of the main things is, you
don't practice outside of your bounds of competence. That would
have been outside of the bounds of my competence to have gone
there, because I was someone who is in the training business
and understood the training population. So, when I said this is
something that we at the Air Force Survival School don't know
about, I was giving my opinion there, and also giving my
opinion about the waterboard with respect to training. I don't
believe that it should be used anywhere, that was my stance
that I was taking at that time.
Senator Lieberman. Understood. Thank you.
Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator Lieberman.
Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Mr. Shiffrin, my questions follow up on the questions that
Senator Lieberman just asked you. I'm trying to get a better
understanding of why DOD did not seek assistance from the FBI,
for example, which has probably the most extensive experience
in interrogating hostile detainees of perhaps anyone in the
Federal Government. Obviously, we know, later, that there was
disagreement between DOD and the FBI on the proper approach to
use with detainees.
You talked about the great frustration within the
Department about the lack of information that was being secured
or obtained from the detainees, and you also said, in response
to questions from Senator Levin, that the Department had been
out of the business of interrogation for some time. It seems to
me that it was more logical for the Department to go to the FBI
for assistance than to try to figure out how the SERE
techniques could be re-engineered to be used for interrogation,
since that's not at all what the purpose of the SERE techniques
were. Could you give us more understanding of your perception
of why the Department, under Secretary Rumsfeld, would be
reluctant to turn to the FBI for assistance?
Mr. Shiffrin. Assuming the correctness of your premise--and
that is, they did not go to the FBI; I have no personal
knowledge as to whether they did or didn't, but it seems like
they didn't--my answer is somewhat my personal observation in
my limited dealings with the Secretary, and that was, the
Secretary was very jealous of other agencies, and specifically
with respect to DOD's inherent capabilities. I can remember one
incident that came up two or three times, somewhat unrelated,
and that was the CIA's ability to get things done in
Afghanistan, and the Secretary was quite upset that the CIA was
more effective in Afghanistan than we were, in some cases,
especially at the onset of hostilities or before hostilities.
Of course, it was understandable; the CIA had been there for 25
years, and the military hadn't set foot in Afghanistan for 25
years. But, that was never a satisfactory answer to him. In
fact, he ended up building a capability that mirrored the CIA.
I think it would have been unthinkable to say to the
Secretary that, ``the people who were really good at this are
law enforcement; we should talk to the FBI, talk to the Drug
Enforcement Agency, talk to other law enforcement agencies that
have been conducting interrogations for their entire careers.''
Now, I just don't think he would have accepted that answer.
Senator Collins. I suspect that you're correct, based on
the discussions that we had with the Secretary's office when we
were trying to do intelligence reform, which the Secretary was
very resistant to and wanted, instead, to build up a
duplicative capability within DOD.
But, how about the Army Field Manual, which had been the
guidance for the Army, at least, in conducting interrogations?
Was there discussion within DOD of why that was inadequate in
dealing with these detainees?
Mr. Shiffrin. I was not privy to that.
Senator Collins. Colonel, are you aware of any discussions
about why the Army Field Manual's guidance on interrogation was
not adequate?
Colonel Baumgartner. No, Senator, I'm not.
Senator Collins. Let me ask you another question based on
the SERE training. Prior to 2002, are you aware of any time in
which the interrogation techniques based on SERE training were
ever employed successfully by military interrogators or by
members of other U.S. Government agencies?
Colonel Baumgartner. Let me answer the question this way.
What the committee is calling ``SERE techniques'' with regards
to interrogation, they're not just SERE techniques; they're
used by police, they're used by priests, they're used by your
mom and dad. I mean, good-cop/bad-cop. We didn't invent that,
but we use it in training. So, a lot of these interrogation
techniques are nothing more than interview techniques. In some
of them, it's a friendly interviewer; and some of them, the
interviewer is not so friendly.
We've taken what we have found, as Dr. Ogrisseg said, and
internalized those to our training, because we know they work
against us, and they have in the past; that's why we do
lessons-learned on every detention, POW, peacetime governmental
situation that we come across, so we can train our folks more
effectively. When you start looking at what other folks were
doing, we really didn't investigate how we do enemy POW or
detention operations, because they're just not applicable to
our training.
Senator Collins. But the SERE training was never intended
to teach interrogation techniques, correct?
Colonel Baumgartner. No, we don't teach interrogation
techniques to our students.
Senator Collins. It's resistance and survival correct?
Colonel Baumgartner. Yes, we teach our instructors
interviewing techniques, we teach them how to use physical
pressures so that we can teach students how to resist a
determined adversary. They learn those, not to employ them as
offensive capabilities, but to teach students how to employ the
techniques we're trying to teach them on how to resist enemy
captivity.
Senator Collins. But, the irony here is that the SERE
training is intended to help our troops resist inappropriate
interrogation methods----
Colonel Baumgartner. Yes, ma'am.
Senator Collins.--inhumane methods.
Colonel Baumgartner. Yes, ma'am.
Senator Collins. So, by the very nature of the SERE
training, we're trying to help our troops resist and survive
interrogation techniques that are not sanctioned, that are
inhumane or outside the pale. That's why I think it's so
troubling to many of us that those techniques were investigated
for use by our interrogators, when, in fact, the whole purpose
of SERE training is to teach our troops how to survive when
they're being questioned by people who do not obey the
international standards of humane treatment. Is that an
accurate statement?
Colonel Baumgartner. Yes, Senator, I believe it is.
Senator Collins. Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator Collins.
Senator Akaka, I believe, is next in line.
Senator Akaka. Thank you very much, Mr. Chairman.
Mr. Shiffrin, I'm very interested in the circumstances
surrounding your initial request to the Colonel. Prior to your
July 2002 request, how familiar were you with the training
conducted at the JPRA? More specifically, to what extent were
you aware of the specifics of the resistance phase of SERE
training and that these techniques were designed to simulate
the conditions employed by enemies who did not abide by the
Geneva Convention?
Mr. Shiffrin. Not familiar at all, Senator. I only knew of
JPRA through another program. I had no detailed knowledge of
SERE. I knew about SERE, but no more than you could get from
reading a paragraph on it.
Senator Akaka. Colonel, it is my understanding from your
advance testimony, that you were assigned to the USAF Survival
School in a variety of capacities from 1990 until your
retirement in 2003, and that in your last assignment, as chief
of staff, you had broad oversight and knowledge of internal
processes. My question is, prior to the July request regarding
interrogation resistance techniques used against U.S. POWs, to
your knowledge had the JPRA ever been contacted by the DOD's
Office of General Counsel regarding this type of information?
In other words, to what extent did this seem to you to be an
unusual request at that time?
Colonel Baumgartner. Sir, there was contact between JPRA
and the Office of General Counsel prior to July 2002. As I said
in my opening statement, in interviews with the committee
staffers, I came to realize that they had actually requested
the historical material back in December 2001. So, that was the
first contact.
The next contact was in early July, when they asked us for
information on exploitation interrogation, and I cleared that
with the U.S. JFCOM Headquarters and my commander, to provide
the information.
Senator Akaka. At that time, what was your understanding of
the purpose of the request?
Colonel Baumgartner. I don't want to speculate or put any
thoughts in anybody's minds on that, but we used it for
training. The only other purpose you could use it for is if you
were to use it in a different environment. We weren't part of
that decision process. We were tasked by higher headquarters
for information, and we provided the information.
Senator Akaka. Colonel, you assert that the September 2002
Fort Bragg briefings were to assist the Army in training Army
psychologists and other mental health personnel on what it
meant to be assigned to duty at GTMO, including instruction in
exploitation oversight and treatment of detainees and staff in
a captivity environment. To your knowledge, were aggressive
interrogation techniques demonstrated at this briefing? Also,
to what extent were you aware of the potential for the
information of the JPRA briefing to be used as a model for the
types of interrogation techniques recommended in the JTF GTMO
SERE interrogation SOP? (Appendix A)
Colonel Baumgartner. Senator, I know that the interrogation
techniques were brief. They talked about exploitation. I'm
pretty sure--I don't know for a fact, but I know that they
talked about how you oversee--when you have folks in detention,
whether you're training or in another venue, we have to be very
careful how we handle our students, how they're moved, how
they're detained, how they're restrained, if restraint is
deemed necessary as part of the training. Some of these things
that you find in the training environment are certainly issues
that would have to be dealt with in an offensive detention
environment.
As far as actual techniques being demonstrated, I have no
knowledge of that. I know they were going to get briefed, and I
hope that answers your question.
Senator Akaka. Dr. Ogrisseg, one of my deepest concerns in
reviewing the material available prior to this hearing was what
appears to me to be the deliberate decision by this
administration to use the techniques developed to assist our
Armed Forces members to survive forms of mistreatment and
torture perpetuated by enemy combatants who do not adhere to
the Geneva Convention to develop our Nation's own SOPs with
regards to treatment of detainees, yet it is not even clear
whether use of aggressive interrogation techniques is the most
effective method of gathering information. My question, Doctor,
is, how effective is the resistance training given our own
military members? Isn't it likely that enemy combatants have
been given similar resistance training, making these methods
less viable than other options, such as rapport-building?
Dr. Ogrisseg. Senator, I can certainly answer that question
with regards to how effective our training is, because we've
studied it. One of the purposes of my job is to do program
evaluations of this type of training, to ensure that our
students come through feeling confident that they're able to
handle these situations, and therefore, we use some of the
techniques that we do to actually enhance their confidence.
Much like a lot of other fields that want people to make
decisions, in very difficult spots, we put them into
circumstances that model what people have experienced in the
past. Firefighters use physical pressures. They teach people
skills, and then they put them in burning buildings so that
during training they develop those learned skills and make them
less vulnerable to being degraded by stress. In our training,
we both approximate some of the things that have been done to
people in the past, but we also ensure that they're structured
in a way, so that the students can succeed. We have surveyed
how confident they are when they go through these experiences
untrained, versus how confident they are afterwards, and
they're significantly greater. We know that they definitely
take in the skill sets, because we have ways of assessing which
skill sets that they're applying. So, I'm very confident that
we know our students are getting what they need from training.
Senator Akaka. Colonel, in your advance testimony, you note
that while you were aware of many things involving the JPRA,
you were not privy to everything. You also note that JPRA
directors had the authority and ability to go directly to the
commander and deputy commander as well. My question to you,
Colonel, is, why would decisions have been made without the
input of the chief of staff's input or knowledge?
Colonel Baumgartner. Senator, the chief of staff at a
military organization is not like a chief of staff for, say, a
political organization. You're not the gatekeeper for
everything. ``Staff director'' is probably known as managing
the formats, managing staff packages, being the chief staff
officer for the commander, making sure things are done
correctly, and making sure the directors play well with each
other in the day-to-day conduct of your business. So each
director has the ability to go to the commander without going
through the chief of staff, if they so choose. The commander
will sometimes reach out for especially sensitive issues, like
personnel issues or things of that nature, and go directly to
the director, and not use the chief of staff, because of the
sensitivity of the issue. So usually everything goes right
through the office, not always. But there is a tremendous
volume of things that went through the office.
Senator Akaka. Thank you very much, Mr. Chairman.
Chairman Levin. Thank you, Senator Akaka.
Senator Bill Nelson.
Senator Bill Nelson. Thank you, Mr. Chairman.
Mr. Ogrisseg, I want to follow up. In your training, you
spoke about waterboarding. Do you also use sleep deprivation in
your training?
Dr. Ogrisseg. Senator, in Air Force training we've never
used waterboarding. Never. In my statement, I was talking about
the training that was done at the Navy school in San Diego. So
we've never done it, and would never do it for the reasons that
I outlined there, that it's detrimental to a stress-inoculation
approach to this training. We want them to come through more
resistant to stress.
We do, however, use some sleep deprivation within the
training. Our students get tired and fatigued, because in real
situations in the past, historically, they've been interrogated
while they are tired and fatigued.
Senator Bill Nelson. I want to get to your testimony, with
regard to waterboarding and training. In your testimony, and I
quote you, ``I told him''--Lieutenant Colonel Baumgartner--
``that I had seen waterboarding used while observing Navy
training during the previous year''----
Dr. Ogrisseg. Yes, sir.
Senator Bill Nelson.--``and I would never recommend it
being used in training''----
Dr. Ogrisseg. Yes, sir.
Senator Bill Nelson. So, you've seen it. You further say,
``The waterboard produced capitulation and compliance with
instructor demands 100 percent of the time,'' and you finish up
by saying that the waterboard expressed extreme avoidance
attitudes, such as a likelihood to further comply with any
demands made of them if brought near the waterboard again. So
why don't you give us some further observations about that.
Dr. Ogrisseg. Senator, when I observed the Navy training, I
not only watched when folks were being put on the waterboard,
but also went to observe when they were being debriefed,
following training. I'm not exactly sure how many, but with
three or four of these students that I saw that experienced the
waterboard, I heard their comments about that pressure. The
gist of the comments is, as I stated there, ``If they had
brought me near that thing again, I would have complied with
anything that they told me to do, and done anything to avoid
it.''
Senator Bill Nelson. It's to prepare our troops for
captivity. Now, the Chairman, in his opening comments, said
that this technique is limited to 20 seconds. Our Navy
students, primarily SEALs, they would know that they were not
going to be killed in this operation, that it was a training
exercise. So, it's to prepare them for it. So, your
observations of that are that, at the end of the day, whatever
the captor wants the captee to do as a result of waterboarding,
the captee is going to do? Is that your observation?
Dr. Ogrisseg. What my observation was, was that certainly
they would comply with what was wanted. As far as the
information that they gave, I have no way of knowing whether or
not that was true or not.
Senator Bill Nelson. You said earlier, to someone's
question, that there was a way for the trainee to stop the
interrogation technique. Tell us about that.
Dr. Ogrisseg. In all of the school programs that I have
seen, there is a term that can be used for them to say, ``Hey,
I need to talk to someone,'' get them out of role and an
opportunity to bring them back online. With the waterboard,
when I saw it in 2001, there was essentially not a similar
mechanism for that, that would allow them before being placed
in that pressure, to avert it. Even with the specialists that
you're talking about the SEALs going through, it doesn't take
very long, with that device, to instill a very real fear of
drowning and death for anyone who's going through it, even if
they know what the rules of engagement are for using it during
training.
Senator Bill Nelson. All right.
Now, let's talk about lack of sleep. In chapter 5 of the
``Code of Conduct and the Psychology of Captivity,'' it says,
``Lack of sleep for prolonged periods may result in anxiety,
irritability, memory problems, confusions, hallucinations,
paranoia, disorientation, and, ultimately, death.'' What's your
observation of that, as you saw it in this SERE training?
Dr. Ogrisseg. Certainly people were not pushed to the point
of anything approximating death within our training, but most
of the other reactions that you're talking about are typical
reactions to being put into an experience like this. Obviously
our goal is to have them experience that first with the good
guys, and have a chance to apply the strategies that they've
been taught to counteract those.
Senator Bill Nelson. On the basis of what you saw in the
SERE training, do you have a feeling about how accurate the
information received using the technique of sleep deprivation
is?
Dr. Ogrisseg. Senator, are you talking about how good they
learn the material?
Senator Bill Nelson. No.
Dr. Ogrisseg. I'm not sure I understand the question, sir.
Senator Bill Nelson. Information that would be gathered
from a detainee as a result of taking them through sleep
deprivation, is that reliable information?
Dr. Ogrisseg. Senator, you're talking about interrogation,
and I'm talking about training, which is where my specialty
area lies. I'm not sure that I'm qualified----
Senator Bill Nelson. You don't have any observation, having
seen the people deprived of sleep during training, as to
whether or not the information they would give is good or not?
Dr. Ogrisseg. I'm not sure that I'm qualified to assess
that for real-world detainee-handling circumstance, because, in
training, the skill sets that we want them to apply are to
resist the attempts that the captor is making in exploiting
them. So, they're actively applying skill sets that hopefully
will degrade the quality of information that the captor gets.
Senator Bill Nelson. Mr. Chairman, maybe I need to ask this
of some of the further witnesses, but let me ask one more
question.
Under the Army Field Manual, the standard by which we are
trying to put into law, the standard by which you can
interrogate detainees, it says this, ``Use of separation must
not preclude the detainee getting 4 hours of continuous sleep
every 24 hours.'' That's the standard in the Army Field Manual,
for detainees.
Now, we know, and it has been reported publicly, that al
Qahtani was interrogated sometime in late 2002 at GTMO, where
he was deprived of sleep by interrogating him for 18 to 20
hours a day for 48 of 54 days. So, what would be your opinion
of his mental capacity when interrogated for that long?
Dr. Ogrisseg. Senator, I have no familiarity with the
subject that you're talking about. I was not there, and I don't
feel qualified to offer an opinion on that.
Senator Bill Nelson. When you were doing the training for
the Air Force, did you go through sleep deprivation, yourself?
Dr. Ogrisseg. I certainly did.
Senator Bill Nelson. Okay. Then, on the basis of your sleep
deprivation, what is your answer to my question?
Dr. Ogrisseg. I did not go through anything as prolonged as
what you have described there.
Senator Bill Nelson. How much time?
Dr. Ogrisseg. It certainly varies within the courses, but
certainly in the range of 4 to 12 hours.
Senator Bill Nelson. Of sleep deprivation within a 24-hour
period?
Dr. Ogrisseg. Yes, sir.
Senator Bill Nelson. You don't have any opinion as to my
question?
Dr. Ogrisseg. You're asking me to try to----
Senator Bill Nelson. I'm asking your opinion.
Dr. Ogrisseg. Yes, sir. You are, but you're also asking me
to generalize, from my own experience, to that----
Senator Bill Nelson. That's what I'm asking.
Dr. Ogrisseg.--to that of--an al Qaeda member, and I don't
know what the circumstances were prior to that experience that
you described. I don't know specifically what was done to him.
So as an ethical obligation as a psychologist, I don't feel
that I can answer that question.
Senator Bill Nelson. I disagree with you. I think you have
an opinion, but so be it.
Mr. Chairman, thank you.
Chairman Levin. Thank you.
That reminds me, your reference to Qahtani, that there were
portions of my statement that I left out because it was
obviously a long statement; and so, my entire statement will be
made part of the record, including the paragraphs relating to
Mr. Qahtani.
[The prepared statement of Chairman Levin follows:]
Prepared Statement by Senator Carl Levin
Today's hearing will focus on the origins of aggressive
interrogation techniques used against detainees in U.S. custody. We
have three panels of witnesses today and I want to thank them for their
willingness to voluntarily appear before the committee.
Intelligence saves lives. Knowing where an insurgent has buried an
improvised explosive device can keep a vehicle carrying marines in Iraq
from being blown up. Knowing that an al Qaeda associate visited an
internet cafe in Kabul could be the key piece of information that
unravels a terrorist plot targeting our embassy. Intelligence saves
lives.
But how do we get the people who know the information to share it
with us? Does degrading them or treating them harshly increase the
chances that they'll be willing to help? Just a couple of weeks ago I
visited our troops in Afghanistan. While I was there I spoke to a
senior intelligence officer who told me that treating detainees harshly
is actually an impediment--a ``roadblock'' to use that officer's word--
to getting intelligence from them.
Here's why, he said--al Qaeda and Taliban terrorists are taught to
expect Americans to abuse them. They're recruited based on false
propaganda that says the United States is out to destroy Islam.
Treating detainees harshly only reinforces their distorted view and
increases their resistance to cooperate. The abuse at Abu Ghraib was a
potent recruiting tool for al Qaeda and handed al Qaeda a propaganda
weapon they could use to peddle their violent ideology.
So, how did it come about that American military personnel stripped
detainees naked, put them in stress positions, used dogs to scare them,
put leashes around their necks to humiliate them, hooded them, deprived
them of sleep, and blasted music at them. Were these actions the result
of ``a few bad apples'' acting on their own? It would be a lot easier
to accept if it were. But that's not the case. The truth is that senior
officials in the United States Government sought information on
aggressive techniques, twisted the law to create the appearance of
their legality, and authorized their use against detainees. In the
process, they damaged our ability to collect intelligence that could
save lives.
Today's hearing will explore part of the story: how it came about
that techniques, called Survival, Evasion, Resistance, and Escape
(SERE) training, which are used to teach American soldiers to resist
abusive interrogations by enemies that refuse to follow the Geneva
Conventions, were turned on their head and sanctioned by Department of
Defense (DOD) officials for use offensively against detainees. Those
techniques included use of stress positions, keeping detainees naked,
use of dogs, and hooding during interrogations.
Some brief background on SERE training. The U.S. military has five
SERE schools to teach certain military personnel--whose missions create
a high risk that they might be captured--the skills needed to survive
in hostile enemy territory, evade capture, and escape should they be
captured. The resistance portion of SERE training exposes students to
physical and psychological pressures designed to simulate abusive
conditions to which they might be subject if taken prisoner by enemies
that may abuse them. The Joint Personnel Recovery Agency (JPRA) is the
DOD agency that oversees SERE training. JPRA's instructor guide states
that a purpose of using physical pressures in the training is ``stress
inoculation,'' building soldiers' immunities so that should they be
captured and subject to harsh treatment, they will be better prepared
to resist. The techniques used in SERE resistance training can include
things like stripping students of their clothing, placing them in
stress positions, putting hoods over their heads, disrupting their
sleep, treating them like animals, subjecting them to loud music and
flashing lights, and exposing them to extreme temperatures. It can also
include face and body slaps and until recently, for some sailors who
attended the Navy's SERE school, it included waterboarding--mock
drowning.
The SERE schools obviously take extreme care to avoid injuring our
own soldiers. Troops are medically screened to make sure they're fit
for the SERE course. Prior to the training, each student's physical
limitations are carefully documented to reduce the chance that the SERE
training and the use of SERE techniques will cause injury. There are
explicit limitations on the duration and intensity of physical
pressures. For example, when waterboarding was permitted at the Navy
SERE school, the instructor manual stated that a maximum of 2 pints of
water could be used on a student who was being waterboarded and, if a
cloth was used to cover a student's face, it could stay in place a
maximum of 20 seconds.
SERE resistance training techniques are legitimate and important
training tools. They prepare our forces who might fall into the hands
of an abusive enemy to survive by getting them ready for what might
confront them.
Strict controls are also in place during SERE resistance training
to reduce the risk of psychological harm to students. Psychologists are
present throughout SERE training to intervene should the need arise and
to talk to students during and after the training to help them cope
with associated stress.
Those who play the part of interrogators in the SERE school drama
are not real interrogators--nor are they qualified to be. As the Deputy
Commander for the Joint Forces Command (JFCOM) put it ``the expertise
of JPRA lies in training personnel how to respond and resist
interrogations--not in how to conduct interrogations.'' That
distinction is a fundamental one.
Some might say that if our personnel go through it in SERE school,
what's wrong with doing it to detainees. Well, our personnel are
students and can call off the training at any time. SERE techniques are
based on abusive tactics used by our enemies. If we use those same
techniques offensively against detainees, it says to the world that
they have America's stamp of approval. That puts our troops at greater
risk of being abused if they're captured. It also weakens our moral
authority and harms our efforts to attract allies to our side in the
fight against terrorism.
So, how did SERE techniques come to be considered by DOD for
detainee interrogations. In July 2002, Richard Shiffrin, a Deputy
General Counsel in the DOD and a witness at today's hearing, called
Lieutenant Colonel Daniel Baumgartner, also a witness today and then
the Chief of Staff at JPRA--the agency that oversees the SERE
training--and asked for information on SERE techniques.
In response to Mr. Shiffrin's request, Lieutenant Colonel
Baumgartner drafted a two-page memo, and compiled several documents,
including excerpts from SERE instructor lesson plans, that he attached
to his memo saying JPRA would ``continue to offer exploitation
assistance to those government organizations charged with the mission
of gleaning intelligence from enemy detainees.'' The memo was hand
delivered to the General Counsel's office on July 25, 2002. Again, it
is critical to remember here; these techniques are not used in SERE
school to obtain intelligence, they are to prepare our soldiers to
resist abusive interrogations.
The next day, Lieutenant Colonel Baumgartner drafted a second memo,
which included three attachments. One of those attachments listed
physical and psychological pressures used in SERE resistance training
including sensory deprivation, sleep disruption, stress positions,
waterboarding, and slapping. It also made reference to a section of the
JPRA instructor manual that talks about ``coercive pressures'' like
keeping the lights at all times, and treating a person like an animal.
Another attachment, written by Dr. Ogrisseg, also a witness today,
assessed the long-term psychological effects of SERE resistance
training on students and the effects of the waterboard.
This morning, the committee will have the chance to ask Mr.
Shiffrin, Lieutenant Colonel Baumgartner, and Dr. Ogrisseg about these
matters.
On August 1, 2002, a week after Lieutenant Colonel Baumgartner sent
his memos to the DOD General Counsel, the Department of Justice's (DOJ)
Office of Legal Counsel (OLC) issued two legal opinions. One, commonly
known as the first Bybee memo, was addressed to then-White House
Counsel Alberto Gonzales and provided OLC's opinion on standards of
conduct in interrogation required under the Federal torture statute.
That memo concluded:
For an act to constitute torture as defined in the Federal
torture statute, it must inflict pain that is difficult to
endure. Physical pain amounting to torture must be equivalent
in intensity to the pain accompanying serious physical injury,
such as organ failure, impairment of bodily function, or even
death. For purely mental pain or suffering to amount to torture
under the Federal torture statute, it must result in
significant psychological harm of significant duration, e.g.,
lasting for months or even years.
The other OLC opinion, issued the same day and known commonly as
the second Bybee memo, responded to a Central Intelligence Agency (CIA)
request, and addressed the legality of specific interrogation tactics.
While the interrogation tactics reviewed by the OLC in the second
Bybee memo remain classified, General Hayden, in public testimony
before the Senate Select Committee on Intelligence in February of this
year, said that the waterboard was one of the techniques that the CIA
used with detainees. Steven Bradbury, the current Assistant Attorney
General of the OLC, testified before the House Judiciary Committee
earlier this year that the ``CIA's use of the waterboarding procedure
was adapted from the SERE training program.''
During the time the DOD General Counsel's office was seeking
information from JPRA, JPRA staff, responding to a request from
Guantanamo (GTMO), was finalizing plans to conduct training for
interrogation staff from U.S. Southern Command's (SOUTCHOM) Joint Task
Force 170 at GTMO. During the week of September 16, 2002, a group from
GTMO, including interrogators and behavioral scientists, travelled to
Fort Bragg, NC, and attended training conducted by instructors from the
JPRA SERE school. None of the three JPRA personnel who provided the
training was a trained interrogator.
On September 25, 2002, just days after GTMO staff returned from
that training, a delegation of senior administration lawyers, including
Jim Haynes, General Counsel to the DOD, John Rizzo, acting CIA General
Counsel, David Addington, Counsel to the Vice President, and Michael
Chertoff head of the Criminal Division at the DOJ, visited GTMO. An
after action report produced by a military lawyer after the visit
noted, that one purpose of the trip was to receive briefings on ``intel
techniques.''
On October 2, 2002, a week after John Rizzo, the acting CIA General
Counsel visited GTMO, a second senior CIA lawyer, Jonathan Fredman, who
was chief counsel to the CIA's Counterterrorism Center, went to GTMO,
attended a meeting of GTMO staff and discussed a memo proposing the use
of aggressive interrogation techniques. That memo had been drafted by a
psychologist and psychiatrist from GTMO who, a couple of weeks earlier,
had attended the training given at Fort Bragg by instructors from the
JPRA SERE school.
While the memo remains classified, minutes from the meeting where
it was discussed are not. Those minutes clearly show that the focus of
the discussion was aggressive techniques for use against detainees.
When the GTMO Chief of Staff suggested at the meeting that GTMO
``can't do sleep deprivation,'' Lieutenant Colonel Beaver, GTMO's
senior lawyer, responded ``Yes we can--with approval.'' Lieutenant
Colonel Beaver added that GTMO ``may need to curb the harsher
operations while International Committee of the Red Cross is around.''
Mr. Fredman, the senior CIA lawyer, suggested it's ``very effective
to identify detainee phobias and use them'' and described for the group
the so-called ``wet towel'' technique, which we know as waterboarding.
Mr. Fredman said ``it can feel like you're drowning. The lymphatic
system will react as if you're suffocating, but your body will not
cease to function.''
Mr. Fredman presented the following disturbing perspective of our
legal obligations under anti-torture laws, saying ``It is basically
subject to perception. If the detainee dies you're doing it wrong.''
If the detainee dies, you're doing it wrong? How on Earth did we
get to the point where a senior United States Government lawyer would
say that whether or not an interrogation technique is torture is
``subject to perception'' and that ``if the detainee dies you're doing
it wrong.'' What was GTMO's senior JAG officer, Lieutenant Colonel
Beaver's response? ``We will need documentation to protect us.''
Nine days after that October 2, 2002, meeting, General Dunlavey,
the Commander of Joint Task Force 170 at GTMO, sent a memo to U.S.
SOUTHCOM requesting authority to use interrogation techniques which the
memo divided into three categories of progressively more aggressive
techniques. Category I was the least aggressive. Category II was more
so and included the use of stress positions, exploitation of detainee
fears (such as fear of dogs), removal of clothing, hooding, deprivation
of light and sound. Category III techniques included techniques like
the so-called wet towel treatment, or ``waterboard,'' that were the
most aggressive. A legal analysis by GTMO's Staff Judge Advocate,
Lieutenant Colonel Diane Beaver justifying the legality of the
techniques, was sent with the request.
On October 25, 2002, General James Hill, the U.S. SOUTHCOM
Commander forwarded General Dunlavey's request to the Chairman of the
Joint Chiefs of Staff. Days later, the Joint Staff solicited the views
of the military Services on the GTMO request.
The military Services reacted strongly against using many of the
techniques in the GTMO request. In early November 2002, in a series of
memos, the Services identified serious legal concerns with the
techniques and they called urgently for additional analysis.
The Air Force cited ``serious concerns regarding the
legality of many of the proposed techniques'' and stated that
``the techniques described may be subject to challenge as
failing to meet the requirements outlined in the military order
to treat detainees humanely.'' The Air Force also called for an
in depth legal review of the request.
The Chief Legal Advisor to the Criminal Investigative
Task Force (CITF) at GTMO wrote that Category III techniques
and certain Category II techniques ``may subject servicemembers
to punitive articles of the Uniform Code of Military Justice
(UCMJ),'' called ``the utility and legality of applying certain
techniques'' in the request ``questionable,'' and stated that
he could not ``advocate any action, interrogation or otherwise,
that is predicated upon the principle that all is well if the
ends justify the means and others are not aware of how we
conduct our business.''
The Chief of the Army's International and Operational
Law Division wrote that techniques like stress positions,
deprivation of light and auditory stimuli, and use of phobias
to induce stress ``crosses the line of `humane' treatment,''
would ``likely be considered maltreatment'' under the UCMJ, and
``may violate the torture statute.'' The Army labeled the
request ``legally insufficient'' and called for additional
review.
The Navy response recommended a ``more detailed
interagency legal and policy review'' of the request.
The Marine Corps expressed strong reservations,
stating that ``several of the Category II and III techniques
arguably violate Federal law, and would expose our
servicemembers to possible prosecution.'' The Marine Corps said
the request was not ``legally sufficient,'' and like the other
Services, called for ``a more thorough legal and policy
review.''
While it has been known for some time that military lawyers voiced
strong objections to interrogation techniques in early 2003 during the
DOD Detainee Working Group process, these November 2002 warnings from
the military Services--expressed before the Secretary of Defense
(SECDEF) authorized the use of aggressive techniques--were not publicly
known before now.
When the Joint Staff received the military Services' concerns, Rear
Admiral Jane Dalton, then-Legal Advisor to the Chairman of the Joint
Chiefs of Staff, began her own legal review of the proposed
interrogation techniques, but that review was never completed. Today
we'll have the opportunity to ask RADM Dalton about that.
Notwithstanding concerns raised by the military Services, DOD
General Counsel Jim Haynes sent a memo to SECDEF Donald Rumsfeld on
November 27, 2002, recommending that he approve all but 3 of the 18
techniques in the GTMO request. Techniques like stress positions,
removal of clothing, use of phobias (such as fear of dogs), and
deprivation of light and auditory stimuli were all recommended for
approval.
Five days later, on December 2, 2002, Secretary Rumsfeld signed Mr.
Haynes's recommendation, adding the handwritten note ``I stand for 8-10
hours a day. Why is standing limited to 4 hours?'' When Secretary
Rumsfeld approved the use of the use of abusive techniques against
detainees, he unleashed a virus which ultimately infected interrogation
operations conducted by the U.S. military in Afghanistan and Iraq.
Discussions about ``reverse engineering'' SERE techniques for use
in interrogations at GTMO had already prompted strong objections by the
DOD's CITF at GTMO. CITF Deputy Commander Mark Fallon said that SERE
techniques were ``developed to better prepare U.S. military personnel
to resist interrogations and not as a means of obtaining reliable
information'' and that ``CITF was troubled with the rationale that
techniques used to harden resistance to interrogations would be the
basis for the utilization of techniques to obtain information.''
The dispute over the use of aggressive techniques came to a head
with the military's plan for interrogating Mohammed al-Khatani. Both
CITF and FBI strongly opposed the military's plan and CITF took their
concerns up the Army Chain of Command and even to the DOD General
Counsel's office; but over CITF's objections, the military's plan was
approved. The Khatani interrogation began on November 23, 2002, just
over a week before the Secretary signed the Haynes memo.
SOUTHCOM Commander General James Hill described the Khatani
interrogation in a June 3, 2004, press briefing. He said: ``The staff
at Guantanamo working with behavioral scientists, having gone up to our
SERE school and developed a list of techniques which our lawyers
decided and looked at, said were OK.'' General Hill said ``we began to
use a few of those techniques . . . on this individual . . .''
Key documents relating to Khatani's interrogation remain
classified. Published accounts, however, indicate that Khatani was
deprived of adequate sleep for weeks on end, stripped naked, subjected
to loud music, a dog was used to scare him, and a leash was placed
around his neck as he was forced to perform dog tricks.
On May 13, 2008, the Pentagon announced in a written statement that
the Convening Authority for military commissions had ``dismissed
without prejudice the sworn charges against Mohamed al Khatani.'' The
statement does not indicate the role his treatment played in that
decision.
In the week following the Secretary's December 2, 2002,
authorization, senior staff at GTMO set to work drafting a Standard
Operating Procedure (SOP) specifically for the use of SERE techniques
in interrogations. The first page of one draft of that SOP stated that
``The premise behind this is that the interrogation tactics used at
U.S. military SERE schools are appropriate for use in real-world
interrogations. These tactics and techniques are used at SERE school to
`break' SERE detainees. The same tactics and techniques can be used to
break real detainees during interrogation.'' The draft described how to
slap, strip, and place detainees in stress positions. It also described
``hooding,'' ``manhandling,'' and ``walling'' detainees.
When they saw the draft SOP, CITF and FBI personnel again raised a
red flag. A draft of their comments on the SOP said the use of
aggressive techniques only ``ends up fueling hostility and
strengthening a detainee's will to resist.'' But those objections did
not stop GTMO from taking the next step--training interrogators on how
to use the techniques offensively.
On December 30, 2002, two instructors from the Navy SERE school
arrived at GTMO. The following day, in a session with approximately 24
interrogation personnel, the two demonstrated how to administer stress
positions, and various slaps--just like they do it in SERE school.
Around this time, General Hill, the Commander of the U.S. SOUTHCOM
spoke to General Miller and discussed the fact that a debate was
occurring over the Secretary's approval of the techniques. In fact,
CITF's concerns had made their way up to then-Navy General Counsel
Alberto Mora and a battle over interrogation techniques was being waged
at senior levels in the Pentagon.
On January 3, 2003, 3 days after they conducted the training, the
SERE instructors met with Major General Miller. According to some who
attended, General Miller stated that he did not want his interrogators
using the techniques that the Navy SERE instructors had demonstrated.
That conversation took place after the training had already occurred
and not all the interrogators who attended the training got the
message.
Two weeks earlier, on December 20, 2002, Alberto Mora had met with
DOD General Counsel Jim Haynes. In a memo describing the meeting, Mr.
Mora says he told Mr. Haynes that he thought interrogation techniques
that had been authorized by the SECDEF on December 2, 2002, ``could
rise to the level of torture'' and asked him, ``What did `deprivation
of light and auditory stimuli' mean? Could a detainee be locked in a
completely dark cell? For how long? A month? Longer? What exactly did
the authority to exploit phobias permit? Could a detainee be held in a
coffin? Could phobias be applied until madness set in?''
On January 9, 2003, Alberto Mora met with Jim Haynes again.
According to his memo, Mora expressed frustration that the Secretary's
authorization had not been revoked and told Haynes that the policies
could threaten Secretary Rumsfeld's tenure and even damage the
presidency.
On January 15, 2003, having gotten no word that the Secretary's
authority would be withdrawn, Mora delivered a draft memo to Haynes's
office stating that ``the majority of the proposed category II and all
of the category III techniques were violative of domestic and
international legal norms in that they constituted, at the minimum,
cruel and unusual treatment and, at worst, torture.'' In a phone call,
Mora told Haynes he would be signing his memo later that day unless he
heard definitively that the use of the techniques was being suspended.
In a meeting that same day, Haynes returned the draft memo and told
Mora that the Secretary would rescind the techniques.
On January 15, 2003, the Secretary rescinded his December 2, 2002,
authorization. At the same time, he directed the establishment of a
``Working Group'' to review interrogation techniques. What happened
next has already become well known. For the next few months the
judgments of senior military and civilian lawyers critical of legal
arguments supporting aggressive interrogation techniques were rejected
in favor of a legal opinion from OLC's John Yoo. The Yoo opinion, the
final version of which was dated March 14, 2003, was requested by Jim
Haynes, and repeated much of what the first Bybee memo had said 6
months earlier.
Mr. Mora, who was one of the Working Group participants, said that
soon after the Working Group was established, it became evident the
group's report ``would contain profound mistakes in its legal analysis,
in large measure because of its reliance on the flawed OLC memo.'' In a
meeting with Yoo, Mora asked whether the law allowed the President to
go so far as to order torture. Yoo responded ``Yes.''
The August 1, 2002, Bybee memo, again, had said that to violate the
Federal anti-torture statute, physical pain that resulted from an act
would have to be ``equivalent in intensity to the pain accompanying
serious physical injury, such as organ failure, impairment of bodily
function, or even death.'' John Yoo's March 14, 2003 memo stated that
criminal laws, such as the Federal anti-torture statute, would not even
apply to certain military interrogations and that interrogators could
not be prosecuted by the Justice Department for using interrogation
methods that would otherwise violate the law. One CIA lawyer reportedly
called the Bybee memo of August 2002 a ``golden shield.'' Combining it
with the Yoo memo of March 2003, the Justice Department had attempted
to create a shield to make it difficult or impossible to hold anyone
accountable for their conduct.
Ultimately the Working Group report, finalized in April 2003,
included a number of aggressive techniques that were legal according to
John Yoo's analysis. The full story of where the Working Group got
those techniques remains classified. However, the list itself reflects
the influence of SERE. Removal of clothing, prolonged standing, sleep
deprivation, dietary manipulation, hooding, increasing anxiety through
the use of a detainee's aversions like dogs, and face and stomach slaps
were all recommended. Top military lawyers and service General Counsels
had objected to these techniques as the report was being drafted. Those
who had objected, like Navy General Counsel Alberto Mora, were simply
excluded from the process and not even told that a final report had
been issued.
On April 16, 2003, less than 2 weeks after the Working Group
completed its report, the SECDEF authorized the use of 24 specific
interrogation techniques for use at GTMO. While the authorization
included such techniques as dietary manipulation, environmental
manipulation, and sleep adjustment, it was silent on most of the
techniques in the Working Group report.
However, the Secretary's memo said that ``If, in your view, you
require additional interrogation techniques for a particular detainee,
you should provide me, via the Chairman of the Joint Chiefs of Staff, a
written request describing the proposed technique, recommended
safeguards, and the rationale for applying it with an identified
detainee.''
Just a few months later, one such request arrived at the Pentagon.
The detainee was Mohamedou Ould Slahi. While several documents relating
to the Slahi interrogation plan remain classified, the recent report
from the DOJ Inspector General (IG) includes newly declassified
information suggesting the plan included hooding Slahi and subjecting
him to sensory deprivation and ``sleep adjustment.'' The IG's report
says that an FBI agent who saw a draft of the interrogation plan said
it was similar to Khatani's interrogation plan. Secretary Rumsfeld
approved the Slahi plan on August 13, 2003.
How did SERE techniques make their way to Afghanistan and Iraq?
Shortly after the Secretary approved Jim Haynes's recommendation on
December 2, 2002, the techniques--and the fact the Secretary had
authorized them--became known to interrogators in Afghanistan. A copy
of the Secretary's memo was sent from GTMO to Afghanistan. The Officer
in Charge of the Intelligence Section at Bagram Airfield, in
Afghanistan has said that in January 2003 she saw--in Afghanistan--a
power point presentation listing the aggressive techniques authorized
by the Secretary on December 2, 2002.
Documents and interviews also indicate that the influence of the
Secretary's approval of aggressive interrogation techniques survived
their January 15, 2003 rescission.
On January 24, 2003--9 days after Rumsfeld's rescission--the Staff
Judge Advocate for CJTF-180, CENTCOM's conventional forces in
Afghanistan, produced an ``Interrogation techniques'' memo. While that
memo remains classified, the unclassified version of a report by Major
General George Fay stated that the CJTF-180 memo ``recommended removal
of clothing--a technique that had been in the Secretary's December 2
authorization'' and discussed ``exploiting the Arab fear of dogs''
another technique approved by the Secretary on December 2, 2002.
From Afghanistan, the techniques made their way to Iraq. According
to the DOD IG, at the beginning of the Iraq war, the special mission
unit forces in Iraq ``used a January 2003 Standard Operating Procedure
(SOP) which had been developed for operations in Afghanistan.''
According to the DOD IG, the Afghanistan SOP had been:
``influenced by the counterresistance memorandum that the
Secretary of Defense approved on December 2, 2002 and
incorporated techniques designed for detainees who were
identified as unlawful combatants. Subsequent battlefield
interrogation SOPs included techniques such as yelling, loud
music, and light control, environmental manipulation, sleep
deprivation/adjustment, stress positions, 20-hour
interrogations, and controlled fear (muzzled dogs) . . .''
Special mission unit techniques eventually made their way into SOPs
issued for all U.S. forces in Iraq. The Interrogation Officer in Charge
at Abu Ghraib obtained a copy of the special mission unit interrogation
policy and submitted it, virtually unchanged, to her chain of command
as proposed policy for the conventional forces in Iraq, led at the time
by Lieutenant General Ricardo Sanchez.
On September 14, 2003, Lieutenant General Sanchez issued the first
Combined Joint Task Force 7 interrogation SOP. That SOP authorized
interrogators in Iraq to use stress positions, environmental
manipulation, sleep management, and military working dogs to exploit
detainees' fears in interrogations.
In the report of his investigation into Abu Ghraib, Major General
George Fay said that interrogation techniques developed for GTMO became
``confused'' and were implemented at Abu Ghraib. Major General Fay said
that removal of clothing, while not included in CJTF-7's SOP, was
``imported'' to Abu Ghraib, could be ``traced through Afghanistan and
GTMO,'' and contributed to an environment at Abu Ghraib that appeared
``to condone depravity and degradation rather than humane treatment of
detainees.'' Following a September 9, 2004, Committee hearing on his
report, I asked Major General Fay whether the policy approved by the
SECDEF on December 2, 2002, contributed to the use of aggressive
interrogation techniques at Abu Ghraib, and he responded ``Yes.''
Not only did SERE resistance training techniques make their way to
Iraq, but instructors from the JPRA SERE school followed. The DOD IG
reported that in September 2003, at the request of the Commander of the
Special Mission Unit Task Force, JPRA deployed a team to Iraq to
provide assistance to interrogation operations. During that trip, SERE
instructors were authorized to participate in the interrogation of
detainees in U.S. military custody. Accounts of that trip will be
explored at a later time.
I will be sending a letter to DOD asking that those accounts and
other documents relating to JPRA's interrogation-related activities be
declassified.
Major General James Soligan, the Chief of Staff of the U.S. JFCOM,
which is the JPRA's higher headquarters, issued a memorandum
referencing JPRA's support to interrogation operations. Soligan wrote
that:
``Recent requests from OSD and the Combatant Commands have
solicited JPRA support based on knowledge and information
gained through the debriefing of former U.S. POWs and detainees
and their application to U.S. Strategic debriefing and
interrogation techniques. These requests, which can be
characterized as `offensive' support, go beyond the chartered
responsibilities of JPRA. The use of resistance to
interrogation knowledge for `offensive' purposes lies outside
the roles and responsibilities of JPRA.''
Lieutenant General Robert Wagner, the Deputy Commander of JFCOM,
has likewise said that ``Relative to interrogation capability, the
expertise of JPRA lies in training personnel how to respond and resist
interrogations--not in how to conduct interrogations. Requests for JPRA
`interrogation support' were both inconsistent with the unit's charter
and might create conditions which tasked JPRA to engage in offensive
operational activities outside of JPRA's defensive mission.''
The DOD IG report completed in August 2006 said techniques in Iraq
and Afghanistan had derived, in part from JPRA and SERE.
Many have questioned why we should care about the rights of
detainees. On May 10, 2007, General David Petraeus answered that
question in a letter to his troops. General Petraeus wrote:
``Our values and the laws governing warfare teach us to
respect human dignity, maintain our integrity, and do what is
right. Adherence to our values distinguishes us from our enemy.
This fight depends on securing the population, which must
understand that we--not our enemies--occupy the moral high
ground.
I fully appreciate the emotions that one experiences in Iraq.
I also know firsthand the bonds between members of the
`brotherhood of the close fight.' Seeing a fellow trooper
killed by a barbaric enemy can spark frustration, anger, and a
desire for immediate revenge. As hard as it might be, however,
we must not let these emotions lead us--or our comrades in
arms--to commit hasty, illegal actions. In the event that we
witness or hear of such actions, we must not let our bonds
prevent us from speaking up. Some may argue that we would be
more effective if we sanctioned torture or other expedient
methods to obtain information from the enemy. They would be
wrong. Beyond the basic fact that such actions are illegal,
history shows that they also are frequently neither useful nor
necessary.
We are, indeed, warriors. We train to kill our enemies. We
are engaged in combat, we must pursue the enemy relentlessly,
and we must be violent at times. What sets us apart from our
enemies in this fight, however, is how we behave. In everything
we do, we must observe the standards and values that dictate
that we treat noncombatants and detainees with dignity and
respect. While we are warriors, we are also all human beings.''
Chairman Levin. Senator Ben Nelson.
Senator Ben Nelson. Thank you, Mr. Chairman. Again, let me
add my appreciation to you for calling this important hearing.
Dr. Ogrisseg, the purpose of the training for our troops is
to help them be able to survive, under the most extraordinary
of circumstances, these techniques. Is it designed to keep them
from telling secrets or giving up information that would be
harmful, as well?
Dr. Ogrisseg. Yes, Senator, it is.
Senator Ben Nelson. That may work, under certain
circumstances, but, at least based on the four or five U.S.
Navy troops who were subjected to waterboarding, it probably
wouldn't keep them from telling anything that the captor wanted
them to tell. Is that accurate, based on what they said,
``Bring the board next to me again, I'll tell them whatever
they want to know''?
Dr. Ogrisseg. Based on what they said, I can determine,
certainly that they were going to talk. I don't necessarily
know what they would say once they started talking. But,
certainly this would get them talking. What they were
indicating was they would do whatever they could to stay off of
that situation.
Senator Ben Nelson. As somebody involved in the training,
you probably have an opinion as to whether or not they would
give up anything, once they started talking, to keep from
having the board used against them?
Dr. Ogrisseg. Sir, I would like to believe that the folks
going through the training would be equipped enough to sustain
that; but based on the limited amount of time that we have with
them, I think this is more like the resistance training
metaphor. The resistance training metaphor is much like
resistance training with weights.
Senator Ben Nelson. It's not foolproof.
Dr. Ogrisseg. It's not foolproof. This is like putting a
400-pound bar on them when they are only prepared to lift one
that's maybe a couple hundred pounds.
Senator Ben Nelson. But, it's also safe to say that--if
they'll say anything to avoid having the board brought to them
again, that they could give misinformation just as easily.
They'd answer any question, potentially, that is presented to
them, whether it's accurate information or not. Is that
accurate?
Dr. Ogrisseg. Yes, Senator, that's true.
Senator Ben Nelson. But, the purpose is really not so much
to keep them from giving up secrets, it's for their survival.
Is that fair?
Dr. Ogrisseg. It's both. Information is one way that our
forces could be exploited, but obviously we want them to
survive and return with honor. So, it's both survival and
resistance.
Senator Ben Nelson. Lieutenant Colonel Baumgartner, did you
have any concerns with providing the SERE techniques to the
interrogators?
Colonel Baumgartner. No, sir, I did not.
Senator Ben Nelson. Did you know what they were going to
use them for, the purpose?
Colonel Baumgartner. I knew, when we provided information
on resistance or interrogation techniques, that somebody way
above my paygrade was going to make a decision what was
appropriate and what was inappropriate. We were never part of
those discussions.
Senator Ben Nelson. Mr. Shiffrin, did you have any legal
opinion at the time that this request was made for the kind of
information by Mr. Haynes that went beyond the studies and the
research information on techniques?
Mr. Shiffrin. I didn't, Senator. My sole effort, as I
recall, was to merely find out what information was out there.
Senator Ben Nelson. Nobody asked you what your opinion was
under the UCMJ or Geneva Conventions or any other base for
providing against torture?
Mr. Shiffrin. Correct. I don't remember ever being part of
any discussion of specific techniques.
Senator Ben Nelson. But did you wonder, in your own mind,
whether this information being passed on might not be in
compliance with such laws?
Mr. Shiffrin. Honestly, Senator, I don't recall having that
concern at the time, but, again, some of the techniques--and I
think it was mentioned here--are relatively benign techniques.
They're effective interrogation techniques. Some don't work,
and maybe people were going to look at them and say, ``Let's
not use these.'' But, the colonel mentioned ``good-cop/bad-
cop,'' and that's been around for centuries.
Senator Ben Nelson. But, the waterboarding is not in that
category. Is that accurate to say?
Mr. Shiffrin. Yes. I never heard of waterboarding until I
think I had retired from DOD and found out it had been used. I
did not, at any time, participate in any discussion of specific
harsh techniques.
Senator Ben Nelson. I think that's everything that I have,
Mr. Chairman. Thank you.
Chairman Levin. I believe Senator Pryor is next.
Senator Pryor.
Senator Pryor. Thank you, Mr. Chairman.
I have just a few questions for Lieutenant Colonel
Baumgartner, and that is, just for clarification--I know you've
been asked about this in different contexts, but just for
clarification in my mind, did JPRA ever advocate using the SERE
techniques in an offensive manner against detainees?
Colonel Baumgartner. No, Senator, we did not. What we did
was, we provided the information, asked by higher headquarters,
on exploitation, which, because of the nature of our training,
we have experts in exploitation, we have folks that have
studied interrogation and interview techniques. We offered up
what information we had.
Senator Pryor. Would you, today, recommend these techniques
with detainees?
Colonel Baumgartner. I'm really not qualified to answer
that, Senator. What we do as an administration in questioning
detainees is something that has to be discussed by legal
counsel and administration officials far above my paygrade.
Senator Pryor. Where did the techniques that you all do in
your SERE training--where did those techniques originate?
Colonel Baumgartner. Sir, those originated through studying
lessons-learned of past conflicts and how our folks have been
held by an adversary.
Senator Pryor. So, for example, World War II, Vietnam,
Korea.
Colonel Baumgartner. World War II, Korea, Vietnam, the Cold
War, the Iranian hostage crisis, for example. We even study
other detention situations, civilian detention situations that
have lessons that might be useful for our training.
Senator Pryor. So, in your mind, since other nations or
entities are using those against U.S. forces, does that justify
our use of these techniques?
Colonel Baumgartner. Sir, I--once again, I'm not qualified
to render an opinion on that. I'm not a legal expert.
Senator Pryor. But, do you have a personal opinion on it?
Colonel Baumgartner. I have a personal opinion that a
country needs to sit down and decide that ahead of time, before
you launch.
Senator Pryor. I know you mentioned the legal opinion, but
isn't there also a moral dimension to this, as well?
Colonel Baumgartner. We certainly go to great lengths in
our training to look at the moral/ethical considerations behind
how we treat our students and how the training is structured so
they get the best learning out of it. Now, in a detention
situation, that's not my realm of expertise.
Senator Pryor. Is it your understanding that some of the
techniques that you use in the SERE training do violate the
Army Field Manual, U.S. law, and the Geneva Conventions?
Colonel Baumgartner. One, sir, I don't think we conduct
training that's going to violate U.S. law.
Senator Pryor. But----
Colonel Baumgartner.--I'm not going to torture students.
Senator Pryor. No, I understand that. But you're simulating
techniques that may be used against them.
Colonel Baumgartner. We are trying to create, in that
student's mind, a hostile environment, where they have to
practice, like Dr. Ogrisseg said, the strategies that they're
offered in training before they get the opportunity to practice
it for real both in training and then downstream, if they
happen to be taken captive.
Senator Pryor. But, some of the activities you're trying to
simulate would violate the Army Field Manual----
Colonel Baumgartner. We are simulating an enemy that is not
complying with the Geneva Conventions----
Senator Pryor. Right.
Colonel Baumgartner.--that's true.
Senator Pryor. When did you find out that someone somewhere
was trying to take what you all are doing in the SERE program
and actually use it offensively with detainees? When did you
discover that?
Colonel Baumgartner. Sir, the request for the information,
like Dr. Ogrisseg said, it wasn't for training, therefore it
had to be for our decisionmakers to make a decision on what
DOD, or what the Government, was going to use, in terms of
techniques.
Senator Pryor. Yes. What I'm asking is, did you know about
it? Did you know, at the time, when you were providing
information, that someone somewhere was working on a new policy
on how we were going to treat detainees?
Colonel Baumgartner. I didn't know that for a fact,
Senator, but, like I said, I had an idea that they were
probably going to look at, as a matter of policy, what was
appropriate for the United States to use.
Senator Pryor. Did you ever offer any opinion about what
you felt would or would not be appropriate?
Colonel Baumgartner. No, Senator, we were not part of that
decisionmaking process at all.
Senator Pryor. So, in other words, your testimony is, you
just provided the information?
Colonel Baumgartner. We provided the information, and then,
after that, we were not in that loop anymore.
Senator Pryor. Mr. Chairman, that's all I have.
Chairman Levin. Thank you, Senator Pryor.
Senator Reed.
Senator Reed. Thank you very much, Mr. Chairman.
Colonel Baumgartner, did anyone outside of the DOD ever ask
you for the information that you sent to the General Counsel's
Office, which is a list of physical pressures in the memo from
Dr. Ogrisseg?
Colonel Baumgartner. We had support requests from, like I
said, the DIA. We also had a support request from another
agency that----
Senator Reed. What's the other agency?
Colonel Baumgartner. I think that discussion might go into
classified, sir.
Senator Reed. Did you send them the information?
Colonel Baumgartner. Yes, sir, we did.
Senator Reed. Thank you.
I just want to follow up in the line of questioning, very
briefly, that Senator Pryor, in your response, confirmed my
experience, after 12 years in the Army, which is--the basic
premise of SERE training is that our enemies will not follow
the Geneva Convention--some of them--that they will not follow
any rules of international conduct. I'll just ask you--and I'll
start with you, Colonel--if that's the premise, that all of
these techniques are, per se, violative of the Geneva
Convention, or certainly if they're--without some modifications
or some sort of changes, what was the logic of trying to
incorporate them in our interrogation practices?
Colonel, do you have any thoughts?
Colonel Baumgartner. I'm really not qualified to answer
that, sir. We received a request for information from the
Office of General Counsel. We had that information, based on
our training, based on the research of conducting this training
for 53 years. So we provided the information.
After that point, it's not up to Dan Baumgartner what they
do with it.
Senator Reed. No, but, sir, first of all, I think you've
said before, that the premise is that our adversaries would
likely not follow the Geneva Conventions, the rules of war. Is
that correct?
Colonel Baumgartner. I think it depends on the adversary.
I think with our current adversaries, that's probably true.
Senator Reed. But you were training, not against
adversaries that you were training against the real possibility
that our adversaries would not follow----
Colonel Baumgartner. Absolutely, sir.
Senator Reed. That's correct.
Colonel Baumgartner. Absolutely.
Senator Reed. The thrust of the training was to prepare
these individuals for the worst case, not for the best case.
Colonel Baumgartner. Right, sir.
Senator Reed. Which leads, again, to the conclusion that
these techniques are probably, per se, violative of the Geneva
Convention. Now, did it ever cross your mind, when you were
sending this information over to the General Counsel's Office,
why they needed it? Did you ever officially raise the question,
why do they need this?
Colonel Baumgartner. When you're tasked by the OSD at a
level that we are, if they needed the information--and, quite
frankly, I had no idea what they were going to do with it, what
they were going to use, what they would decide not to use, and
what the country would use that information, or the
administration would use that information, for, in terms of
making a decision. So, when I'm tasked by higher headquarters
to provide information they can legitimately have, I can't
really turn around and tell the flag officer and the senior
executive service guys no.
Senator Reed. No one is suggesting that you were not
complying with a legitimate request, but did it--again, the
question is not so much what you did--but, did anyone in your
organization ask the question, even around the water cooler,
what the heck's going on?
Colonel Baumgartner. We discussed detention operations--of
course we did--because we have experts in exploitation, we have
experts in interrogation methods and questioning, and
everything that surrounds SERE training. So, of course it was
of professional interest to us what--how the United States was
going to deal with this particular question.
Senator Reed. Do you think, on your expertise, that it
would be a challenge to incorporate these techniques and comply
with the Geneva Conventions?
Colonel Baumgartner. I really never came to any
conclusions. There was a lot of discussion, but not a lot of
conclusions.
Senator Reed. Right.
Colonel Baumgartner. This is just a very difficult
question.
Senator Reed. Right.
Colonel Baumgartner. Because when you go to war, you have
to figure out how you're going to conduct detainee treatment.
Senator Reed. Right.
Colonel Baumgartner. Usually it's really best if you do
that ahead of time, before you get in the middle of things.
Senator Reed. Let me, Mr. Shiffrin, ask you the same
question with respect to--the premise of this type of training
was that our adversaries--not all of them, but at least some of
them--would not follow Geneva Convention, would not follow the
CAT, would not follow any rules of civilized conduct. Is that a
fair judgment?
Mr. Shiffrin. My personal view, yes. I don't think it was
something I thought about at the time.
Senator Reed. Okay.
Mr. Shiffrin. But, I understand that's what's--but, the--as
I understand the training, it's pretty wide-ranging.
If I may just offer one point, a lot of the discussion that
I was privy to was not the idea of harsh treatment, but being
able to offer carrots. There's a lot of people who felt that if
we offer some inducement to detainees--cable TV, an extra
pillow----
Senator Reed. Yes, but those inducements didn't seem to
appear in the category 1, 2, and 3 recommendations.
Mr. Shiffrin. No, I'm just saying that, from an abstract
point of view, a discussion about what might be effective or
not, when you say, ``Let's find out everything there is out
there on the subject,'' I assume that some of it would be,
``Well, you could offer inducements.''
Senator Reed. That assumption might be debatable. But,
given what we've seen, in terms of the recommendations, there
weren't many inducements. But, gentlemen, thank you for your
testimony this morning.
Chairman Levin. Thank you.
Senator Sessions.
Senator Sessions. Thank you.
Mr. Shiffrin, would you tell us again what your position
was at this time, and who you reported to?
Mr. Shiffrin. I took the position of Deputy General Counsel
for Intelligence in DOD in December 1997. I left the DOJ, where
I was at OLC. I had that position until I was demoted, or
transferred, at the end of the 2002. I then became the Acting
General Counsel at DIA for my last 6 months at the DOD, and I
retired, July of--
Senator Sessions. Let me just ask you a couple of things.
Were you aware that these techniques that were eventually
approved and then modified for GTMO interrogations--that was
based on a request from the commanding general or the
commanders, somebody at GTMO, right? Were you there then, when
that came up?
Mr. Shiffrin. I had no knowledge of that. I had no
knowledge of any of the techniques or what was being used,
methodology, at GTMO.
Senator Sessions. Okay.
What I'd like to say is, on behalf of the military and the
men and women who try to serve our country, this is what I
understood happened. There were three incidences of this so-
called waterboarding, according to the Director of the CIA.
None of them were done at GTMO, and none of them were done by
the FBI. What I understand is that the military was working to
deal with a small, but valuable, group of individuals who had,
they believed, critical information. One was the so-called 20th
hijacker that had met Mohamed Atta in the United States and was
eventually captured. He did not go on the flight to attack the
Capitol or the White House, he was captured in Iraq--or
Afghanistan--and brought back over here. During that time, the
interrogators asked for authority to interrogate aggressively.
Are any of you familiar with this, personally? They asked
for it, and it went up to the chief counsel, and they went
through all the lawyers and reviewed it, and they approved not
all that they requested. Mr. Haynes approved some of those
techniques, and he denied some of those techniques. Then, after
that, other JAG officers objected, and they expressed concern
that those that were approved went too far, and a working group
was formed. The SECDEF listened to that group, and discussed it
all openly among JAG officers at the Navy, Air Force, and Army,
and they cut back on those.
But, I would point out to my colleagues that this was all
before--isn't it, Mr. Shiffrin?--the Hamdan case, that ruled on
Common Article 3. That was 2 years later, was it not?
Mr. Shiffrin. Senator, I confess, I don't remember the date
of the Hamdan case.
Senator Sessions. It was several years later, probably 2 or
3 years later that this case came out. So, they were operating
under a piece of legislation passed by the United States
Congress and supported by our Judiciary Committee members,
Senators Leahy, Biden, and Kennedy, and Senator Levin and
others who were present in Congress at that time. It defined
``torture,'' and it prohibited torture, but it didn't just
prohibit isolation, or it didn't prohibit stress techniques; it
said that you could not subject someone to ``severe physical or
mental pain or suffering.'' So, that was an operable statute,
was it not, all along? Do any of you know that? [No response.]
So, that's essentially what they are wrestling with.
Now, Mr. Goldsmith was OLC, was he not, Mr. Shiffrin? Is
that what his title was in the DOJ?
Mr. Shiffrin. He was the assistant attorney general----
Senator Sessions. Of Legal Counsel.
Mr. Shiffrin.--OLC, yes.
Senator Sessions. Right, Legal Counsel. So, he was not
happy with some of these techniques that were used, and he
wrote a book about it, ``The Terror Presidency,'' and this is
what he said in his book. He's been widely renowned here as a
critic of the Bush administration, but he said this, as to the
lawyers and trying to do the right thing: ``Many people believe
the Bush administration had been indifferent to these legal
constraints in the fight against terrorism. In my experience,
the opposite is true; the administration has paid scrupulous
attention to the law.'' He goes on to add: ``Many people think
the Bush administration has been indifferent to wartime legal
constraints, but the opposite is true; the administration has
been strangled by law, and, since September 11, 2001, this war
has been lawyered to death.''
So, all I would say to my distinguished chairman, who's
conducted an extensive investigation into all of these matters,
I would just say, truthfully, whether these legal opinions were
correct, whether the Supreme Court later changed the law--and
they did change the law in several important aspects, and it's
unfair to hold the military accountable if the current law--if
you're complying with the current law and it's later changed.
So, we have a situation in which the people on the ground felt
they were dealing with some high-value targets, and DOD
approved certain techniques that they felt did not violate the
terrorism statute that prohibits severe pain being inflicted.
It didn't say you couldn't stress an individual or other things
like that.
So if we went too far on some of those areas--I hope we
didn't, but if we did, then I think, in the process of the
Supreme Court and all these hearings and all--for goodness
sakes, we certainly are doing much better in that regard. But,
it is not the kind of rogue activity that has been suggested.
There was no doubt about it, our military felt that this
country was threatened after September 11, and they were able
to apprehend some of the key players in that, and they
desperately wanted intelligence, to make sure that if there was
another cell group out there planning a similar attack, they
could be stopped. I believe they consulted the legal system,
all the way up to the DOJ. Hopefully, in the future, we can
create a policy that we can all agree on, but I just don't
think we ought to disrespect our men and women in uniform who
have done their best to serve their country at a time when this
Nation saw itself under real threat.
Thank you, Mr. Chairman.
Chairman Levin. Thank you.
Senator McCaskill.
Senator McCaskill. Mr. Chairman, with the utmost respect
for my friend from Alabama, I think that we disrespect the men
and women in uniform if we don't have this hearing. I think
that this hearing is incredibly important for those men and
women, and for the rule of law that they stand for, and for the
kind of democracy that we want to be, and that we want the rest
of the world to be.
Mr. Shiffrin, I know that you are a lawyer, and I would
like to ask you, did you review the legal memorandum, that was
written by Lieutenant Colonel Beaver, that issued the opinion
that these aggressive techniques of interrogation were, in
fact, legal under Federal law?
Mr. Shiffrin. No.
Senator McCaskill. So, have you ever read it?
Mr. Shiffrin. No. Not to my recollection.
Senator McCaskill. If you were reading a legal document, as
a trained lawyer, and you came across the phrase ``immunity in
advance,'' would it cause you to pause?
Mr. Shiffrin. Yes, Senator. In my former life, I was a
prosecutor, and----
Senator McCaskill. Me, too.
Mr. Shiffrin.--and that is something to be scrupulously
avoided, at least my training was----
Senator McCaskill. ``Immunity in advance''--I want to make
sure that we get on the record what ``immunity in advance''
actually contemplates. If I were a police officer, or I were an
officer of the court, and I said to someone, ``Now, if you go
drive the getaway car for the armed robbery, and, afterwards,
if you tell us all about it, we'll make sure that you're not
prosecuted for the armed robbery,'' that would, in fact, be
``immunity in advance,'' wouldn't it?
Mr. Shiffrin. That would be one example, yes.
Senator McCaskill. What you'd really be doing, as an
officer of the court, or as an officer sworn to uphold the
UCMJ, is, you would be saying, ahead of time, ``It's okay if
you break the law.''
Mr. Shiffrin. You're saying that. Whether it's legally
effective or not is another question.
Senator McCaskill. That's another whole line of
questioning. I'm talking about that phrase and whether or not
any lawyer who would read that phrase would go, ``What planet
are we on? There is no such thing as 'immunity in advance.'
That would be a crime.''
Mr. Shiffrin. I can say, from my personal experience, I
never used--or made sure that it was never used, giving someone
immunity in advance.
Senator McCaskill. In fact, as I just said, if someone
actually visits with someone about committing a crime, and
says, ``Don't worry about it. You can commit a crime, and I'm
going to give you immunity,'' wouldn't they, under our
principles of law in this country, be guilty of a crime?
Mr. Shiffrin. They could be, Senator.
Senator McCaskill. That's what I am trying to figure out
here. This legal memorandum, that was the basis for our SECDEF
saying, ``It's okay to hood someone when they're naked and sic
dogs on them,'' contained a legal theory called ``immunity in
advance,'' and no one--I assume that you never had a discussion
with your boss, who got this memo, about this.
Mr. Shiffrin. That's correct.
Senator McCaskill. He is a trained lawyer.
Mr. Shiffrin. That's correct.
Senator McCaskill. Has he had experience as a prosecutor?
Has he had any experience in a criminal courtroom?
Mr. Shiffrin. I don't recall.
Senator McCaskill. It's just mind-boggling to me that that
phrase would be written, and that no one would hear the raging
sirens and flashing red lights that that phrase would, in fact,
embrace under the rule of law in the United States of America.
It's hard for me to understand.
Let me ask you, what are the names of the people that gave
you the impression that we needed to have different, or more
aggressive, interrogation techniques? Who told you that?
Mr. Shiffrin. I don't think that's what I said. My
recollection is that, in discussion or meetings with a number
of people, people in the General Counsel's Office--I mentioned
meetings when General Dunlavey would report--there was the
discussion about the progress, or sometimes the lack of
progress, in obtaining useful, actionable intelligence out of
detainees. The meetings were usually chaired by Jim Haynes.
There could have been any--three, four, five, six other lawyers
there.
Senator McCaskill. Could you give me the names of the other
lawyers that were there, where you would have gotten this
impression that we needed to do something different than we
were doing, in terms of our interrogation techniques? Besides
Jim Haynes, who was in the room?
Mr. Shiffrin. Again, the way I characterized it was that
there was some frustration with the quantity and quality of
information being obtained. I didn't say that we needed to
change techniques.
Senator McCaskill. Okay.
Mr. Shiffrin. Lawyers who were participating, there was
Deputy General Counsel for Legal Counsel, Witt Cobb; I believe
that the Deputy General Counsel for International Affairs,
Charles Allen, was probably in some of these meetings; there
was a marine major or lieutenant colonel who worked in the
Legal Counsel Office, Bill Leitzau. Again, I can't attribute
any particular statement to any of them, but those were the--
there was a lawyer who's now my successor, in intelligence,
Eliana Davidson, who was responsible for the detainee
operations matters. I think those were the lawyers who at least
would have been present at the time these discussions took
place.
Senator McCaskill. Were you ever present in a meeting with
Mr. Haynes at, near, or after the time he recommended to
Secretary Rumsfeld that he approve most of these interrogation
techniques? Some of them that he didn't approve, in category
III, but he certainly approved hooding naked people and siccing
dogs on them.
Mr. Shiffrin. If you gave me the date--I, of course, met
with Mr. Haynes every day.
Senator McCaskill. I can give you the date. The date would
have been--he recommended the approval of these interrogation
techniques that had been deemed legal in the same memorandum
that talked about ``immunity in advance,'' on November 27,
2002. The recommendations were approved on December 2, 2002.
Mr. Shiffrin. I don't remember having--or being part of a
discussion on them. I have a vague recollection of hearing that
the memorandum had been approved.
Senator McCaskill. So you were aware the memorandum
existed.
Mr. Shiffrin. I--yes, but it could have--I could have been
aware in the beginning of January, or later. In other words, I
don't have a recollection or contemporaneous knowledge of it.
Senator McCaskill. I think you're probably a really good
lawyer, and I think you probably care deeply about your
country. I'm trying not to be--well, we're trying to figure out
here who decided that we were going to go down this road, and
when did it get decided?
Mr. Shiffrin. It wasn't me, Senator.
Senator McCaskill. I understand that. But, you were much
closer to it than any of us were, and we're trying to figure
out, did this come from Dick Cheney to Donald Rumsfeld? Mr.
Addington is still at the White House. Did this come from
Gonzales's shop? Did this--Michael Chertoff was down at the
meeting in GTMO talking about this. There are still people
involved in the periphery of this that are in positions of
responsibility today in our Government, so our frustration is,
we would like to hold someone responsible. It's like trying to
catch shadows here, because no one is willing to say where this
came from, this move towards imploding the traditions of our
country, in terms of the example we set for the world.
Mr. Shiffrin. The only other explanation I can offer,
Senator, is that the General Counsel's Office often operated in
a sort of compartmentalized fashion, that it was not unusual
for me to get a request from Jim Haynes to, for example, see
what information I could find out about interrogation and JPRA
and SERE, and I'd find out, just accidentally, 2 weeks later,
that someone else was doing the same thing; or that it was
going to be used at GTMO, I might find out 6 months later, and
never have any knowledge--never be part of any discussion that,
``Oh, this is what we want to do with it.'' The question was,
``Can you find out if there's any material that is available on
effective interrogation?'' ``Yes, sir, I can.''
Senator McCaskill. Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator.
Senator Martinez is next.
Senator Martinez. Mr. Chairman, thank you very much.
I believe that context is terribly important in this very
difficult subject which we're treating. I know that many well-
intended people were dealing under incredibly stressful
circumstances, and the need to obtain actionable intelligence
so that our country could be protected was, I know, uppermost
in their mind. Obviously, mistakes that have harmed our Nation
were probably made in excesses that were, as I think one of our
next witnesses will discuss, were simply cruel, are not a part
of what America is about.
So, with that, I don't have any questions of the current
panel, Mr. Chairman. Thank you very much.
Chairman Levin. Thank you.
We'll just have a brief second round.
Mr. Shiffrin, Colonel Baumgartner testified that you asked
for a list of physical pressures relative to interrogation.
That's his testimony today.
Mr. Shiffrin. I don't recall that, Senator.
Chairman Levin. You deny it?
Mr. Shiffrin. I don't recall it. I note that the memo that
you referred to in the book is not directed to me, it's
directed to the General Counsel.
Chairman Levin. I understand, but I'm asking you whether
the testimony was that you had requested from him that list.
Mr. Shiffrin. I don't believe I ever used the term
``physical pressures.'' I believe the only thing I ever asked
for, after the initial tranche, was how-to briefings, manuals,
anything like that. I would never say--I don't think I ever
said ``I need something on physical pressure,'' because I had
no----
Chairman Levin. Colonel, do you stick to your testimony?
Colonel Baumgartner. Yes, sir.
Mr. Shiffrin. Senator, may I add one thing?
Chairman Levin. Sure.
Mr. Shiffrin. The memo refers to a follow-on question
resulting from a meeting with JPRA and the General Counsel, OSD
General Counsel. That would be Mr. Haynes. I've never met, in
person, Colonel Baumgartner before. I did not attend the
meeting with Colonel Baumgartner. So, to the extent these memos
are responsive to requests at a meeting, I didn't attend that
meeting.
Chairman Levin. All right. I think Colonel Baumgartner was
referring to a phone conversation.
Mr. Shiffrin. He did. But the memo itself says, ``This is
follow-on questions from a meeting.''
Chairman Levin. I think, though, his testimony relates to a
phone conversation.
Mr. Shiffrin. I understand.
Chairman Levin. You deny that you used the term ``physical
pressures,'' and he sticks with his testimony, so there's
clearly a difference there.
Did he ask you for a list of ``carrots''? You talked about
``carrots.'' You were never asked for a list of ``carrots,''
were you?
Mr. Shiffrin. No. By Mr. Haynes or--
Chairman Levin. Yes, by anybody.
Mr. Shiffrin. The only discussion I specifically recall
having was with Major General Dunlavey.
Chairman Levin. All right.
Now, when you--Colonel, you've testified here in a very
forthcoming way, that the use of these tactics in an offensive
way was not what this program was designed to do. It was not
designed to use the tactics in the SERE program against
detainees. Is that correct? Offensively?
Colonel Baumgartner. Mr. Chairman, I believe I said that we
developed these tactics for use in training. That's their
purpose and to export them is the decision of folks above my
paygrade.
Chairman Levin. All right. But, you're aware of the fact
that the export of those is not the way the program is
designed. Is that correct?
Colonel Baumgartner. Yes, sir.
Chairman Levin. Do you know who Major General James Soligan
is? He's the Chief of Staff of the JFCOM.
Colonel Baumgartner. Yes, sir.
Chairman Levin. Okay. He was--that is the JPRA's higher
headquarters, is that correct?
Colonel Baumgartner. Yes, sir.
Chairman Levin. The memorandum that I referred to in my
opening statement, where he says, ``The use of resistance to
interrogation knowledge for offensive purposes lies outside of
the roles and responsibilities of JPRA,'' did you hear me quote
from his memo on that? (Appendix A)
Colonel Baumgartner. Yes, sir.
Chairman Levin. Do you agree with that?
Colonel Baumgartner. Sir, I wasn't privy----
Chairman Levin. No, but do you agree that it's outside the
responsibility of the JPRA?
Colonel Baumgartner. So, used to----
Chairman Levin. ``The use of resistance to interrogation
knowledge for offensive purposes lies outside the roles and
responsibilities of JPRA.''
Colonel Baumgartner. I would say that, like my commander's
philosophy was when I was still Active Duty, use of our guys in
an offensive manner was not what we were all about; we were
about training.
Chairman Levin. Right. Now, when that was misused in that
way, which it obviously has been, from everyone's testimony
here and from the material that I presented, has anyone, to
your knowledge, been held accountable for the misuse of that
program? It's not intended to be used offensively. It was. Do
you know of anybody that's been held accountable for the misuse
of that program? That's my question.
Colonel Baumgartner. Sir, I have no recollection of any of
that, no.
Chairman Levin. Are you aware of the fact that the SERE
training techniques made their way to Iraq in the way I
describe it; also, instructors from the JPRA SERE school went
to Iraq; that the IG reported that, in September 2003, at the
request of the Commander of the Special Mission Unit Task
Force, the JPRA deployed a team to Iraq to provide assistance
to interrogation operations?
Colonel Baumgartner. Sir, I was retired by then.
Chairman Levin. All right. I understand. But, assistance to
interrogation operations is not the purpose of----
Colonel Baumgartner. Sir, I have no knowledge of that.
Chairman Levin. I know, but you would--you do have an
opinion as to whether that is the purpose of the program.
Colonel Baumgartner. Sir, I was not part of that
decisionmaking process, and I don't have a comment on that.
Chairman Levin. You don't know whether or not assistance to
interrogation operations, being present at interrogations, is
part of the program?
Colonel Baumgartner. Sir, I was not part of the
decisionmaking process that led to the decision to send those
folks, whether they went or not, so I----
Chairman Levin. I'm aware of that fact. Do you disagree
with General Soligan on the question of whether or not ``the
use of resistance to interrogation knowledge for offensive
purposes lies outside the roles and responsibilities of JPRA''?
Do you disagree with him?
Colonel Baumgartner. No, sir, I didn't say that. If that's
what General Soligan says, then I don't have a problem with
that, because they were under his control, certainly not mine.
Chairman Levin. All right. The Deputy Commander of JFCOM,
Lieutenant General Wagner, when he said, ``relative to
interrogation capability, the expertise of JPRA lies in
training personnel how to respond and resist interrogations,
not in how to conduct interrogations,'' do you agree with that?
(Appendix A)
Colonel Baumgartner. Yes, sir.
Chairman Levin. Do you agree that what he said, following
the request for JPRA ``interrogation support were both
inconsistent with the unit's charter and might create
conditions which tasked JPRA to engage in offensive operational
activities outside of JPRA's defensive mission''? Do you agree
with that? (Appendix A)
Colonel Baumgartner. Sir, that's consistent with what we
had in place for policy when I was still Active Duty.
Chairman Levin. All right. Again, I want to ask you--I know
you weren't there, but, do you know of anybody that has been
held accountable when the charter of JPRA and its purpose was
violated and it was misused? I'm just asking you, do you know
of anybody?
Colonel Baumgartner. I have no knowledge, sir.
Chairman Levin. One of the problems here is that the SECDEF
just said the other day when he fired two top officials in the
Air Force, Secretary Gates said that during his tenure, ``I've
emphasized to all Services that accountability must reach all
the way up the chain of command, and that the military as a
whole must be willing to admit mistakes when they've made them.
That's the only way to fix it, and it's the only way to ensure
that they don't reoccur in the future. When systemic problems
are found, I believe that accountability must reach beyond
noncommissioned officers and even colonels.'' It sure as heck
hasn't in this situation yet, at least that anybody knows of,
unless any of the other witnesses know of anybody here that's
been held accountable for the violation of JPRA's mandate,
purpose, and mission. We don't know of any. That goes to the
heart of the problem here.
Senator Warner.
Senator Warner. Thank you, Mr. Chairman.
Earlier in the testimony today, a question was asked about,
whether information that you gathered from the JPRA and SERE
interrogation methods were shared with any other U.S.
Government department or agency? Your response was ``the DIA,''
which was clear, and another recipient, of which--it's a
classified nature. But, the question I wish to push further on
that. The information you gathered, in what form did you convey
that information to those two entities? Was it a written
memorandum?
Colonel Baumgartner. Sir, there was some written
information, and they requested briefings.
Senator Warner. All right. So, there is in existence a
document that's in writing as to what went to these two
recipients, is that correct?
Colonel Baumgartner. Yes, sir, I believe there is.
Senator Warner. Mr. Chairman, do we have that among our
files? [Pause.]
Chairman Levin. Senator, I believe that there is no
documentation in our possession of that; however, there is
testimony in our possession, I believe, that is classified.
Senator Warner. Is it the desire of the committee, then, to
have those documents?
Chairman Levin. If there are such documents--of course,
we've asked for documents. By the way--how many of them came
over last week?
Senator Warner. It seems to me that the record----
Chairman Levin. 38,000 documents were presented to us this
week by DOD.
We're not sure what's in those documents, but they sure are
about a year late. But, putting that aside, I really--we can't
answer what is in those documents. We have not identified a
document yet which contains that information, but I, again,
would reiterate that we do have testimony----
Senator Warner. Testimony----
Chairman Levin.--our staff has obtained that is classified.
Senator Warner. I'm aware of that. Then going beyond
documents, did the SERE organization of JPRA provide
individuals to go and perform training?
Colonel Baumgartner. Senator, I believe they sent a team to
do briefings, instruction. I don't know that they conducted
training.
Senator Warner. ``Instruction'' is pretty close to
``training.'' I think they're interchangeable words.
Colonel Baumgartner.--a really good expression. I really
want to use it, but I won't.
Instruction and training are really different. Instruction
really implies imparting academic knowledge. Whereas training,
in our context, implies skill sets.
Senator Warner. Okay. Then what was done? Just instruction
and not skill sets?
Colonel Baumgartner. I didn't attend the training, but the
one--some of the e-mail stuff that I've seen, which is all on a
classified net, was basically instruction in exploitation
interrogations, very similar to what we provided DIA and CITF.
Senator Warner. Was that sharing an issue that your
organization sought higher authority to approve? For instance,
did it go up to the SECDEF?
Colonel Baumgartner. It didn't go to the SECDEF, sir, but
it did go up to the flag level and JFCOM.
Senator Warner. Wait a minute. I spent 5 years in the
building. I never knew what a flag level was. There are flags
all over. It went from where to where?
Colonel Baumgartner. It went from JPRA headquarters to the
JFCOM, J-3, and, I think, into the chief of staff's office.
Senator Warner. Chief of staff of?
Colonel Baumgartner. JFCOM.
Senator Warner. Now, I'm referring to a document, 26 July
2002, DOD memorandum for the OSD General Counsel, and it says,
paragraph 1, unclassified, ``The purpose of this memorandum is
to answer follow-on questions resulting from the meeting
between JPRA and OSDGC on 25 July 2002.'' Are you familiar with
that meeting? (Appendix A)
Colonel Baumgartner. Sir, I believe I'm talking about
telephone conversations. As Mr. Shiffrin said, I have never met
Mr. Shiffrin before today, but we did have a few conversations
to try to figure out what information they wanted so that we
could support their request.
Senator Warner. So, the meeting consisted of a telephone
conversation?
Colonel Baumgartner. Two or three, sir.
Senator Warner. Two or three telephone conversations.
Colonel Baumgartner. Yes, sir.
Senator Warner. But, there was no gathering in a room or
exchange of documents.
Colonel Baumgartner. No, sir, not that I recall.
Senator Warner. Thank you, Mr. Chairman. I know you're
anxious to get the next panel.
Chairman Levin. Thank you, Senator.
Senator Lieberman.
Senator Lieberman. Thanks, Mr. Chairman. I'll be real
brief.
Dr. Ogrisseg, I wanted to ask you whether the training
we're giving our military personnel to resist interrogation
techniques alters, or has altered over time, in other words,
are we training people differently today, because we're facing
Islamic terrorists, than we were, for instance, when we were
facing the Soviet Union or the Vietcong?
Dr. Ogrisseg. Yes, Senator, the training has changed. We
obviously want the training to be relevant. So, in order to do
that, we've had to make sure that we are covering the spectrum
of different types of ways that someone could be detained,
either by terrorist elements factions that we're at war with,
or even with other governments that we're not at war with.
Senator Lieberman. Does the goal that we assume our enemy
interrogators will have alter the methods and the means of
responding? In other words, it seems to me that, in a lot of
cases in previous conflicts, the aim--unfortunately, we know
about Senator McCain's experience, the primary aim of the
torture he endured was to compel him to sign a confession of
some kind for propaganda purposes, not for the purpose of
eliciting information, as was the case that the Pentagon was
seeking here. Unfortunately, there's some reason to believe
that--the current enemy's likely course is to put a captive on
television and kill them. So, does the goal alter the
training--the goal of the interrogators?
Dr. Ogrisseg. It does. The way that people have been
processed and detained before, in some instances, was focused
on information, but that's just one way that someone can be
exploited by an enemy. The situation that you described with a
terrorist network, their goal may be to make a statement, in
that instance, for whatever purpose they think they're going to
serve. So you have to address that. You cannot, within the
training, necessarily determine which goals, which actions that
the students are going to take, because they have to make those
decisions themselves.
Senator Lieberman. The enemy we're facing now, the Islamist
extremists, obviously have a unique--both a cultural
background, but also a theological extremism about them. As
Colonel Baumgartner said, when you were asked for this
information about SERE techniques by the General Counsel's
Office in the Pentagon, since you knew they were not involved
in training, it was natural to assume that they may have been
asking for it to employ against detainees that we had in the
war on terrorism. Was there any information that you conveyed
that was based on the unique cultural background of the
Islamist terrorists?
Dr. Ogrisseg. Senator, are you asking me that question, or
are you asking----
Senator Lieberman. Either one of you who cares to answer.
Colonel Baumgartner. No, sir, not that I'm aware of.
Senator Lieberman. So, let me ask you this question. One
form of harsh interrogation that you haven't been asked about
is the use of dogs. In some of the material I've read from
somewhere comes the suggestion that Muslims or Arabs have some
special phobia or fear of dogs. I don't know whether there's
any premise for that. Did you, at any point, deal with that in
the submission you made to the General Counsel's Office?
Colonel Baumgartner. No, Senator, we had nothing to do with
that.
Senator Lieberman. Okay.
Mr. Shiffrin, let me ask this question. In trying to find
additional information to assist in improving the interrogation
of the detainees in the war on terrorism, did you ever reach
out for tactics or information that were based on unique
cultural characteristics or phobias or fears of the kinds of
people we were likely to be detaining in the war on Islamist
terrorism?
Mr. Shiffrin. No, Senator. My request was just, ``Send me
everything you have. Whatever you have in existence in your
library, please send to me.''
Senator Lieberman. Right.
Mr. Shiffrin. I was never specific on techniques, on the
nature of the interrogator, or anything else.
Senator Lieberman. Do you remember, in any of the material
that came by you, whether any of it dealt with what somebody
might have thought were unique phobias or vulnerabilities of
people we'd be detaining in the war on terrorism?
Mr. Shiffrin. No. No.
Senator Lieberman. Thank you.
Mr. Shiffrin. Everything I got was historical, from the
1950s.
Senator Lieberman. Obviously that was a totally different
enemy.
Mr. Shiffrin. Correct.
Senator Lieberman. Thanks, Mr. Chairman.
Chairman Levin. Thank you.
Just on that question, I think--Mr. Shiffrin, earlier today
in a response to a question from Senator Lieberman, you said
that one of the purposes of seeking information from JPRA was
likely to ``reverse-engineer,'' SERE techniques.
Did you just say that?
Mr. Shiffrin. I did.
Chairman Levin. Today. Then you said, 2 minutes ago, that
you didn't ask about techniques.
Mr. Shiffrin. Any specific techniques. I never inquired of
any specific techniques--the efficacy, the wisdom, or anything
else.
Chairman Levin. But, just 10 seconds ago, I just asked you
this question. In response to Senator Lieberman, you said that
one of the purposes of seeking information from JPRA was likely
to ``reverse-engineer SERE techniques.''
Mr. Shiffrin. That----
Chairman Levin. You said yes, you did say that.
Mr. Shiffrin. I said that----
Chairman Levin. That was an hour ago, not----
Mr. Shiffrin. I said it to Senator Lieberman.
Chairman Levin. Right.
Mr. Shiffrin. My primary purpose, as I understood it, was
to find all the information we had, and----
Chairman Levin. I understand.
Mr. Shiffrin.--I also intuited that there might be some
possibility of reverse-engineering an effective SERE technique.
Just logical.
Chairman Levin. I see. You believe that might have been one
of the purposes.
Mr. Shiffrin. Yes.
Chairman Levin. Okay.
Just, Dr. Ogrisseg, one other question for you. In an
article, or a book, that you wrote, the book called, ``Code of
Conduct and the Psychology of Captivity: Training, Coping, and
Reintegration of Military Life,'' you said that, ``The use of
physical torture has historically yielded poor information and,
paradoxically, serves to enhance resistance.''
Dr. Ogrisseg. Yes, sir.
Chairman Levin. ``Furthermore, the practices serves to
decrease the legitimacy of the offending organization or
country. Physical torture, in most instances, has produced
false confessions or inaccurate or reliable information.'' Is
that true? Did you write that?
Dr. Ogrisseg. Yes, I did, Mr. Chairman.
Chairman Levin. Is that your belief?
Dr. Ogrisseg. Yes, it is, Mr. Chairman.
Chairman Levin. On the page that came immediately
thereafter, on page 99, this is what you said about sleep
deprivation: ``Sleep deprivation has often been used by captors
to enhance dependency and malleability of behavior. Lack of
sleep for prolonged periods may result in anxiety,
irritability, blurred vision, memory problems, confusion,
slurred speech, hallucinations, paranoia, disorientation, and,
ultimately, death. However, sleep deprivation, even for one
night, has recently been revealed in brain scans to affect the
areas of the brain used for language, attention, working memory
function, suggesting that even minor disruptions in sleep can
degrade the captive's ability to cope effectively with
challenges faced in captivity.'' Is that still your opinion?
Dr. Ogrisseg. Mr. Chairman, I don't believe that I wrote
that section.
Chairman Levin. I see.
Dr. Ogrisseg. There were multiple authors on that chapter.
If I may comment back to the question I was being asked to
answer earlier, when you were trying to define what 18 hours or
17 hours of sleep deprivation is, well, if you're talking
about--without knowing anything more, getting up at 5 a.m. and
going to bed at 10 or 11 o'clock at night, I think most people
do that every day, so that's why I was saying I need more
context.
Chairman Levin. Sure. No, that's okay. But, you said ``lack
of sleep for prolonged periods may result.''
Dr. Ogrisseg. Yes, sir.
Chairman Levin. So, you stay with that statement, if it's
``prolonged periods of sleep deprivation.''
Dr. Ogrisseg. I don't believe that I wrote that section in
that chapter, but I would agree with that.
Chairman Levin. All right. When you went through SERE
training, or witnessed SERE training the sleep deprivation you
talked about there, that our people were trained to be
inoculated against were shorter periods than that. You said 4
hours, perhaps?
Dr. Ogrisseg. Mr. Chairman, I don't know that we actually
inoculate them to that during our----
Chairman Levin. To sleep deprivation.
Dr. Ogrisseg. We don't have enough time to, and I'm not
sure that you could inoculate them----
Chairman Levin. To sleep deprivation.
Dr. Ogrisseg.--to sleep deprivation, that's right. However,
we certainly recognize that that's a condition that they face,
and we try to simulate that during the training.
Chairman Levin. How do you simulate it?
Dr. Ogrisseg. We simulate that by keeping them up.
Certainly they are doing some of the things that----
Chairman Levin. Keeping them up for how long?
Dr. Ogrisseg. Sometimes overnight. We don't have an
infinite amount of time.
Chairman Levin. How many hours, though, about?
Dr. Ogrisseg. It varies by training program, but in the
range of about 4 to 10 hours or so.
Chairman Levin. Okay, thank you.
Any other questions? Any other questions? [No response.]
Thank you. We thank this panel very much, and you're
excused. [Pause.]
Our next panel is made up of Alberto Mora, former general
counsel of the Department of the Navy; retired Rear Admiral
Jane Dalton, former legal advisor to the Chairman of the JCS;
and retired Lieutenant Colonel Diane Beaver, former Staff Judge
Advocate at the JTF GTMO.
We thank our witnesses for their presence. I believe we
have an opening statement for the record from each of you, and
then, what we'll do is, we'll start, I think, with Lieutenant
Colonel Beaver, followed by Rear Admiral Dalton, and then Mr.
Mora.
So, if you would proceed, Colonel Beaver.
Colonel Beaver. Yes, sir.
Chairman Levin. Thank you.
STATEMENT OF LTC DIANE E. BEAVER, USA (RET.), FORMER STAFF
JUDGE ADVOCATE, JOINT TASK FORCE 170/JTF GUANTANAMO BAY
Colonel Beaver. Mr. Chairman and committee members, I
appear today voluntarily, in my private capacity. Although I am
currently an employee of DOD, I do not speak today on its
behalf. I am here to testify truthfully and completely
regarding my knowledge of the development and implementation of
interrogation policies and practices at GTMO from June 2002 to
June 2003.
As the staff judge advocate for the detention facility at
GTMO, I wrote a legal opinion in October 2002. In it I
concluded that certain aggressive interrogation techniques, if
appropriately reviewed, controlled, and monitored, were lawful.
Since DOD publicly released my opinion in June 2004, it has
received considerable attention and scrutiny. I have been
vilified by some because of it, and discounted and forgotten by
many others. Regardless, I accept full responsibility for my
legal opinion. It was based on my own independent research and
analysis, it represents the best work I could do under the
constraints and circumstances I faced at the time.
No one improperly influenced me to write this opinion, or,
to my knowledge, even attempted to do so. I tried to consult
experts and superiors on the content of the opinion prior to
issuing it, but received no feedback. I do not say that to
shift blame. As I said, the blame for any error in that opinion
is mine, and mine alone.
I cannot, however, accept responsibility for what happened
to my legal opinion after I properly submitted it to my chain
of command. I fully expected that it would be carefully
reviewed by legal and policy experts at the highest levels
before a decision was reached. I did not expect that my
opinion, as a lieutenant colonel in the Army Advocate General's
Corps, would become the final word on interrogation policies
and practices within DOD. For me, such a result was simply not
foreseeable. Perhaps I was somewhat naive, but I did not expect
to be the only lawyer issuing a written opinion on this
monumentally important issue.
In hindsight, I cannot help but conclude that others chose
not to write on this issue to avoid being linked to it. That
was not an option for me. My commander was responsible for
detention and interrogation operations for the most dangerous
group of terrorists the world has ever seen. The specter of
another catastrophic attack on the American people loomed large
in our thoughts and haunted our dreams. We knew that accurate,
actionable intelligence was necessary to prevent another such
attack. We did our jobs, knowing that if we failed, the
American people would pay a price.
I have repeatedly been asked whether I was pressured to
write my October 2002 legal opinion. I felt a great deal of
pressure, as did all of us at the facility. I felt the pressure
of knowing that thousands of innocent lives might be lost if we
got it wrong. I knew that many honest, decent Americans would
condemn our actions if we did not balance our efforts to
protect them with due respect to the rule of law.
I believed, at the time, and still do, that such a balance
could be reached if the interrogations were strictly reviewed,
controlled, and monitored. My legal opinion was not a blank
check authorizing unlimited interrogations. Throughout the
opinion, I emphasized the need for medical, psychiatric, and
legal reviews to be conducted prior to the approval of these
interrogation plans. My judge advocates and I were intent on
monitoring the interrogations and would stop any excessive or
abusive behavior if we saw it.
What I accomplished in my legal opinion has largely gone
unnoticed. My command did not conduct interrogations
independently without the notice or approval of higher
authorities. Individual interrogators were not given the
opportunity to improvise techniques without command approval or
control. In short, the interrogation techniques discussed in my
legal opinion would not have been conducted in an abusive or
unlawful manner if the approval and control procedures I had
outlined were followed. In this way, what happened at GTMO
stands in stark contrast to the anarchy that occurred at Abu
Ghraib.
I close this statement as I began it, by accepting
responsibility. I reached my legal conclusions after careful
analysis and, at all times, acted in good faith. I discussed my
ideas openly with my colleagues and encouraged full debate.
Some of my critics chose not to participate in these
discussions. Had they, their concerns and reservations would
have received fair consideration.
That my colleagues and I openly discussed these issues
should not be surprising. The American people, including many
legal experts, were having similar conversations at homes,
schools, and workplaces across the Nation.
If my legal opinion was wrong, then I regret the error very
much. I am a proud professional. I feel very keenly any failure
on my part to be precise and accurate in the advice I render. I
freely accept sincere dissent and criticism. But, there is
something very important that I will never have to regret; at a
time of great stress and danger, I tried to do everything in my
lawful power to protect the American people.
Thank you.
[The prepared statement of Colonel Beaver follows:]
Prepared Statement by LTC Diane E. Beaver, USA (Ret.)
Mr. Chairmen and committee members, I appear today voluntarily and
in my private capacity. Although I am currently an employee of the
Department of Defense, I do not speak today on its behalf. I am here to
testify truthfully and completely regarding my knowledge of the
development and implementation of interrogation policies and practices
at Guantanamo Bay, Cuba, from June 2002 to June 2003.
As the Staff Judge Advocate for the detention facility at
Guantanamo Bay, I wrote a legal opinion in October 2002. In it, I
concluded that certain aggressive interrogation techniques, if
appropriately reviewed, controlled, and monitored, were lawful. Since
the Department of Defense publicly released my opinion in 2004, it has
received considerable attention and scrutiny. I have been vilified by
some because of it, and discounted and forgotten by many others.
Regardless, I accept full responsibility for my legal opinion. It was
based on my own independent research and analysis. It represents the
best work I could do under the constraints and circumstances I faced at
the time. No one improperly influenced me to write this opinion or--to
my knowledge--even attempted to do so. I tried to consult experts and
superiors on the content of the opinion prior to issuing it, but
received no feedback. I do not say that to shift blame. As I said, the
blame for any error in that opinion is mine and mine alone.
I cannot, however, accept responsibility for what happened to my
legal opinion after I properly submitted it to my chain of command. I
fully expected that it would be carefully reviewed by legal and policy
experts at the highest levels before a decision was reached. I did not
expect that my opinion, as a Lieutenant Colonel in the Army Judge
Advocate General's Corps, would become the final word on interrogation
policies and practices within the Department of Defense. For me, such a
result was simply not foreseeable. Perhaps I was somewhat naive, but I
did not expect to be the only lawyer issuing a written opinion on this
monumentally important issue. In hindsight, I cannot help but conclude
that others chose not to write on this issue to avoid being linked to
it. That was not an option for me. My commander was responsible for
detention and interrogation operations for the most dangerous group of
terrorists the world has ever seen. The specter of another catastrophic
attack on the American people loomed large in our thoughts, and haunted
our dreams. We knew that accurate, actionable intelligence was
necessary to prevent another such attack. We did our jobs knowing that
if we failed, the American people would pay a terrible price.
I have repeatedly been asked whether I was pressured to write my
October 2002 legal opinion. I felt a great deal of pressure, as did all
of us at the detention facility. I felt the pressure of knowing that
thousands of innocent lives might be lost if we got it wrong. I knew
that many honest, decent Americans would condemn our actions if we did
not balance our efforts to protect them with due respect for the rule
of law. I believed at the time, and still do, that such a balance could
be reached--if the interrogations were strictly reviewed, controlled,
and monitored. My legal opinion was not a ``blank check'' authorizing
unlimited interrogations. Throughout the opinion, I emphasized the need
for medical, psychiatric, and legal reviews to be conducted prior to
the approval of each and every interrogation plan. My judge advocates
and I were intent on monitoring each interrogation, and would stop any
excessive or abusive behavior if we saw it. What I accomplished in my
legal opinion has largely gone unnoticed. My command did not conduct
interrogations independently, without the notice or approval of higher
authorities. Individual interrogators were not given the opportunity to
improvise techniques without command approval or control. In short, the
interrogation techniques discussed in my legal opinion would not have
been conducted in an abusive or unlawful manner, if the approval and
control procedures I outlined were followed. In this way, what happened
at Guantanamo Bay stands in stark contrast to the anarchy that occurred
at Abu Ghareb.
I close this statement as I began it, by accepting responsibility.
I reached my legal conclusions after careful analysis and at all times
acted in good faith. I discussed my ideas openly with my colleagues and
encouraged full debate. Some of my critics chose not to participate in
these discussions. Had they, their concerns and reservations would have
received fair consideration. That my colleagues and I openly discussed
these issues should not be surprising. The American people, including
many legal experts, were having similar conversations at homes,
schools, and work places across the Nation.
If my legal opinion was wrong, then I regret the error very much. I
am a proud professional. I feel very keenly any failure on my part to
be precise and accurate in the advice I render. I freely accept sincere
dissent and criticism. But there is something very important I will
never have to regret. At a time of great stress and danger, I tried to
do everything in my lawful power to protect the American people.
Thank you.
Chairman Levin. Thank you, Colonel Beaver.
Admiral Dalton?
STATEMENT OF RADM JANE G. DALTON, USN (RET.), FORMER LEGAL
ADVISOR TO THE CHAIRMAN, JOINT CHIEFS OF STAFF
Admiral Dalton. Thank you, Mr. Chairman and distinguished
members of the committee. Thank you for the opportunity to
appear before the committee today to discuss the matter of
detainee interrogation policy.
From June 2000 until June 2003, it was my privilege to
serve as Legal Counsel to the Chairman of the JCS. During that
time, I drew upon my years of service as a career military
lawyer, studying and applying the laws of war to advise the
Chairman and other senior DOD officials on legal issues posed
by the extraordinary security challenges confronting our Nation
following the terrorist attacks of September 11, 2001.
Those challenges called on lawyers at DOD, as never before,
to provide legal advice to enable our Nation's leaders to
aggressively meet the unprecedented threat to our national
security without compromising our adherence to the rule of law
and the United States international treaty obligations.
That we undertook this task at a time of war and amidst a
continuous stream of credible intelligence pointing to a
substantial and resilient terrorist threat made our work as
lawyers all the more difficult.
Through it all, I did my best to provide clear, unvarnished
legal advice without fear or favor of how my advice would be
received. Working within the structure of the military chain of
command and the statutory organization of DOD, I also took
those actions I deemed appropriate to follow up on issues that
arose concerning the treatment of detainees.
I understand the importance of congressional oversight of
the executive branch and our constitutional system, and I
appreciate the sensitivity of the matters under review. I have
faith that the committee will fulfill its oversight role with
wisdom, perspective, and fairness.
Thank you, again, for the opportunity to contribute to
today's hearing, and I look forward to answering your
questions.
[The prepared statement of Admiral Dalton follows:]
Prepared Statement by RADM Jane G. Dalton, USN (Ret.)
Mr. Chairman and distinguished members of the committee, thank you
for the opportunity to appear before the committee today to discuss the
matter of detainee interrogation policy.
From June 2000 until June 2003, it was my privilege to serve as
Legal Counsel to the Chairman of the Joint Chiefs of Staff. During that
time, I drew upon on my years of service as a career military lawyer
studying and applying the laws of war to advise the Chairman and other
senior Department of Defense officials on legal issues posed by the
extraordinary security challenges confronting our Nation following the
terrorist attacks of September 11, 2001.
Those challenges called on lawyers at the Department, as never
before, to provide legal advice to enable our Nation's leaders to
aggressively meet the unprecedented threat to homeland security without
compromising our adherence lo the rule of law and the United States'
international treaty obligations. That we undertook this task at a time
of war, and amidst a continuous stream of credible intelligence
pointing to a substantial and resilient terrorist threat, made our work
as lawyers all the more difficult.
Through it all, I did my best to provide clear, unvarnished legal
advice without fear or favor of how my advice would be received.
Working within the structure of a military chain of command and the
statutory organization of the Department of Defense, I also look those
actions I deemed appropriate to follow up on issues that arose
concerning the treatment of detainees.
I understand the importance of congressional oversight of the
executive branch in our constitutional system, and I appreciate the
sensitivity of the matters under review. I hope that the committee will
fulfill its oversight role with wisdom, perspective, and fairness.
Thank you again for the opportunity to contribute to today's
hearing, and I look forward to answering your questions.
Chairman Levin. Thank you, Admiral.
Mr. Mora?
STATEMENT OF ALBERTO J. MORA, FORMER GENERAL COUNSEL, UNITED
STATES NAVY
Mr. Mora. Chairman Levin and members of the committee, it
is a privilege to appear before you today.
These hearings are critical to better understanding both of
our Nation's interrogation practices and, of even greater
importance, of the consequences to our Nation if we were to
continue to employ cruelty in the interrogation of detainees.
Permit me first, however, to thank the members and staff
for their many courtesies to me during my tenure as general
counsel of the Department of the Navy. Throughout my time in
public service, I witnessed the committee unfailingly live up
to its reputation for civility, diligence, professionalism, and
nonpartisanship as it attended to the legislative affairs of
our Nation's defense.
Mr. Chairman, our Nation's policy decision to use so-called
``harsh interrogation techniques'' during the war on terror was
a mistake of massive proportions. It damaged, and continues to
damage, our Nation. This policy, which may aptly be labeled a
policy of cruelty, violated our founding values, our
constitutional system, the fabric of our laws, our overarching
foreign policy interests, and our national security. The net
effect of this policy of cruelty has been to weaken our
defenses, not to strengthen them.
Before examining the damage, it may be useful to draw some
basic legal distinctions.
The choice of the adjectives harsh or enhanced to describe
these interrogation techniques is euphemistic and misleading.
The legally correct adjective is cruel. Many of the
counterresistance techniques authorized for use at GTMO in
December 2002, constitute cruel, inhuman, or degrading
treatment that could, depending on their application, easily
rise to the level of torture.
Many Americans are unaware that there is a distinction
between cruelty and torture, cruelty being the less severe
level of abuse. This has tended to obscure important elements
of the interrogation debate. For example, the public may be
largely unaware that the government could evasively, if
truthfully, claim, and did claim, that it was not torturing,
even as it was simultaneously applying cruelty. Yet, Americans
should know that there is little or no moral distinction
between cruelty and torture, for cruelty can be as effective as
torture in savaging human flesh and spirit and in violating
human dignity. Our efforts should be focused not merely on
banning torture, but on banning cruelty.
Except in egregious cases, it is difficult for outsiders to
gauge the precise legal category of abuse inflicted on any
detainee, because it hinges on the specific facts, including
the techniques used and the medical and psychological impact.
In general, however, it is beyond dispute that interrogation
constituting cruel treatment was conducted, and certainly the
admission that waterboarding, a classic and reviled method of
torture, was applied to some detainees, creates the presumption
that those detainees were tortured.
The United States was founded on a principle that every
person, not just a citizen, possesses inalienable rights that
no government may violate, including our own. Among these
rights is, unquestionably, the right to be free from cruel
punishment or treatment, as is evidenced by the clear language
of the 8th amendment and the constitutional jurisprudence of
the 5th and 14th amendments. If we can apply the policy of
cruelty to detainees, it is only because our founders were
wrong about the scope of our inalienable rights. For this
reason, cruel interrogations necessarily corrupt our founding
values and corrode our constitutional structure and the fabric
of our legal system.
Because the international legal system, the legal system of
many countries, and the international human rights system are
all largely designed to protect human dignity, the decision of
the United States to adopt cruelty has had a devastating
foreign policy consequence. The cruel treatment of detainees is
a criminal act for most, and perhaps all, of our traditional
allies. As these nations came to recognize the true dimensions
of our policy, political fissures between us and them began to
emerge, because none of them would follow our lead into the
swamp of legalized abuse. These fissures deepened into chasms
as awareness grew about the effect of our policies on
fundamental human rights, on the Geneva Conventions, on the
Nuremberg precedents and on the incidence of prisoner abuse
worldwide. Respect in political support abroad for the United
States decreased sharply and rapidly.
These adverse foreign policy consequences inevitably came
to damage our national security strategy and our operational
effectiveness in the war on terror. Our ability to build and
sustain the broad alliance required to fight the war was
compromised. International cooperation, including in the
military intelligence and law enforcement arenas, diminished as
foreign officials became concerned that assisting the United
States in detainee matters could constitute aiding and abetting
criminal conduct in their own countries. As the difficulties of
Prime Ministers Blair, Howard, and Aznar demonstrated,
seemingly every foreign politician who sought to ally his
country with the U.S. effort on the war incurred a political
penalty.
All of these factors contributed to the difficulties our
Nation has experienced in forging the strongest possible
coalition to fight the war, but the damage to our national
security also occurred down at the tactical or operational
level. I'll cite four examples I heard about during my tenure.
First, some U.S. flag-rank officers maintained that the
first and second identifiable causes of U.S. combat deaths in
Iraq, as judged by their effectiveness in recruiting insurgent
fighters into combat, are, respectively, the symbols of Abu
Ghraib and GTMO. There are others who are convinced that the
proximate cause of Abu Ghraib was the legal advice authorizing
abusive treatment of detainees that issued from the DOJ's OLC
in 2002.
Second, some allied nations reportedly hesitated to
participate in combat operations if there was the possibility
that captured individuals could be abused by U.S. forces.
Third, some allied nations have refused to train with us in
joint detainee capture and handling operations because of
concerns about U.S. detainee policies.
Fourth, senior North Atlantic Treaty Organization officers
in Afghanistan are reported to have left the room when issues
of detainee treatment were raised by U.S. officials, out of
fear that they could become complicit in any abuse.
Mr. Chairman, Albert Camus cautioned nations fighting for
their values against selecting those weapons whose very use
would destroy those values. In this war on terror, the United
States is fighting for our values, and cruelty is such a
weapon.
Thank you.
[The prepared statement of Mr. Mora follows:]
Prepared Statement by Alberto J. Mora
Chairman Levin, Senator McCain, and members of the committee, it is
a pleasure and an honor to appear before you today and to have been
asked to testify on the treatment of detainees in U.S. custody. I
regard these hearings as critical both to a better understanding of the
interrogation policies and practices adopted by our Government since
September 11 and--perhaps of even greater importance--to a better
understanding of the costs and consequences to our Nation if we were to
continue to employ cruelty in the interrogation of detainees.
Two prefatory comments are in order.
First, I wish to thank the members and the committee staff for
their many courtesies to me during my tenure as General Counsel of the
Department of the Navy. Both during my confirmation process and while
serving as Navy General Counsel, I witnessed the committee unfailingly
live up to its well-earned reputation for civility, diligence,
professionalism, and non-partisanship as it attended to the legislative
affairs of our Nation's defense.
Second, in my brief testimony today I intend not to recount my
record on interrogation while serving as Navy General Counsel, but to
summarize briefly my views on the policy consequences of the use of
cruelty as a weapon of war. My official conduct on this issue is
already a matter of record inasmuch as I prepared and submitted a
comprehensive account of these matters to the Navy Inspector General in
2004, following the Abu Ghraib scandal. This memorandum is in the
public domain and may be accessed on the Web.\1\ Similarly, I wish to
note that I have spoken at greater length in various venues on the
issues I will touch on today, and I draw the committee's attention to
my speech to the American Bar Association in February of this year.\2\
I ask that both of these documents be included as part of the record of
these proceedings.
---------------------------------------------------------------------------
\1\ ``Statement for the Record: Office Of General Counsel
Involvement in Interrogation Issues,'' (July 7, 2004)(May be accessed
at www.newyorker.com/images/pdfs/moramemo.pdf).
\2\ The speech was given at the ABA's Center for Human Rights
Fourth Annual House of Delegates Luncheon. The text is located at
www.abavideonews.org/ABA496/media/pdf/navycounsel--OMKall.pdf.
---------------------------------------------------------------------------
Mr. Chairman, our Nation's policy decision to use so-called
``harsh'' interrogation techniques during the war on terror was a
mistake of massive proportions. It damaged and continues to damage our
Nation in ways that appear never to have been considered or imagined by
its architects and supporters, whose policy focus seems to have been
narrowly confined to the four corners of the interrogation room. This
interrogation policy--which may aptly be labeled a ``policy of
cruelty''--violated our founding values, our constitutional system and
the fabric of our laws, our over-arching foreign policy interests, and
our national security. The net effect of this policy of cruelty has
been to weaken our defenses, not to strengthen them, and has been
greatly contrary to our national interest.
Before turning to this damage, it may be useful to draw some of the
basic legal distinctions pertinent to interrogation. The choice of the
adjectives ``harsh'' or ``enhanced'' to describe these interrogation
techniques is euphemistic and misleading. The more precise legal term
is ``cruel.'' Many of the ``counter-resistance techniques'' authorized
for use at Guantanamo in December 2002 constitute ``cruel, inhuman, or
degrading'' treatment that could, depending on their application,
easily cross the threshold of torture.
Many Americans are unaware that there is a legal distinction
between cruelty and torture, cruelty being the less severe level of
abuse. This has tended to obscure important elements of the
interrogation debate from the public's attention. For example, the
public may be largely unaware that the government could evasively if
truthfully claim (and did claim) that it was not ``torturing'' even as
it was simultaneously interrogating detainees cruelly. Yet there is
little or no moral distinction between cruelty and torture, for cruelty
can be as effective as torture in savaging human flesh and spirit and
in violating human dignity. Our efforts should be focused not merely on
banning torture, but on banning cruelty.
Except in egregious cases, gauging the precise legal category of
abuse inflicted on a detainee is difficult because it depends on
specific facts, including the techniques used and the medical and
psychological impact. In general, however, it is beyond dispute that
techniques constituting cruel treatment were authorized and applied.
Tragically, credible reporting also makes it appear probable that some
detainees were tortured. Certainly, the admission that waterboarding--a
classic and reviled method of torture--was applied to some detainees
creates the presumption that those detainees so interrogated were
tortured.
The United States was founded on the principle that every person--
not just each citizen--possesses certain inalienable rights that no
government, including our own, may violate. Among these rights is
unquestionably the right to be free from cruel punishment or treatment,
as is evidenced in part by the clear language of the eighth amendment
and the constitutional jurisprudence of the 5th and 14th amendments. If
we can apply the policy of cruelty to detainees, it is only because our
Founders were wrong about the scope of inalienable rights. With the
adoption of this policy our founding values necessarily begin to be
redefined and our constitutional structure and the fabric of our legal
system start to erode.
Because the international legal system, the legal system of many
countries, and the international human rights system are all largely
designed to protect human dignity, the decision of the United States to
adopt cruelty has had devastating foreign policy consequences. For
most, perhaps all, of our traditional allies, the cruel treatment of
detainees is a criminal act. As these nations came to recognize the
dimensions of our policy of cruelty, political fissures between us and
them began to emerge because none of them would follow our lead into
the swamp of legalized abuse, as we should not have wished them to.
These fissures only deepened as awareness grew about the effect of our
policies on fundamental human rights principles, on the Geneva
Conventions, on the Nuremberg precedents, and on the incidence of
prisoner abuse worldwide. Respect and political support for the United
States and its polices decreased sharply abroad.
These adverse foreign policy consequences would inevitably damage
our national security strategy and our operational effectiveness in the
war on terror. Our ability to build and sustain the broad alliance
required to fight the war was compromised. International cooperation,
including in the military, intelligence, and law enforcements arenas,
diminished as foreign officials became concerned that assisting the
U.S. in detainee matters could constitute aiding and abetting criminal
conduct in their own countries. As the difficulties of Prime Ministers
Tony Blair and Jose Maria Aznar demonstrated, seemingly every European
politician who sought to ally his country with the U.S. effort on the
war on terror incurred a political penalty.
All of these factors contributed to the difficulties our Nation has
experienced in forging the strongest possible coalition in the war on
terror. But the damage to our national security also occurred down at
the tactical or operational level. I'll cite four examples:
First, there are serving U.S. flag-rank officers who maintain that
the first and second identifiable causes of U.S. combat deaths in
Iraq--as judged by their effectiveness in recruiting insurgent fighters
into combat--are, respectively the symbols of Abu Ghraib and
Guantanamo. There are other senior officers who are convinced that the
proximate cause of Abu Ghraib was the legal advice authorizing abusive
treatment of detainees that issued from the Department of Justice's
Office of Legal Counsel in 2002.
Second, allied nations reportedly hesitated on occasion to
participate in combat operations if there was the possibility that, as
a result, individuals captured during the operation could be abused by
U.S. or other forces.
Third, allied nations have refused on occasion to train with us in
joint detainee capture and handling operations because of concerns
about U.S. detainee policies.
Fourth, senior North Atlantic Treaty Organization officers in
Afghanistan have been reported to have left the room when issues of
detainee treatment have been raised by U.S. officials out of fear that
they may become complicit in detainee abuse.
Mr. Chairman, Albert Camus cautioned nations fighting for their
values against selecting those weapons whose very use would destroy
those values. In this war on terror, the United States is fighting for
our values, and cruelty is such a weapon.
I thank you and the committee for your laudatory focus on this
issue and for the invitation to appear today.
Chairman Levin. Thank you very much, Mr. Mora.
Colonel Beaver, let me start with you. In September 2002,
behavioral scientists and interrogators from GTMO attended
training at Fort Bragg, NC, and on September 25, 2002, less
than a week after they got back from training, Jim Haynes,
David Addington, John Rizzo, and Michael Chertoff traveled to
GTMO, where you were the senior JAG officer. A week later, on
October 2, Jonathan Fredman, the Chief Counsel of the CIA's
Counterterrorism Center, came down to GTMO and attended a
meeting with you, where SERE techniques were discussed. That's
October 2.
Now, tab 7 in your book are the minutes from that meeting.
On page 3 of the minutes, Mr. Fredman is quoted as saying that
the anti-torture statutes are vaguely written and that, ``It is
basically subject to perception. If the detainee dies, you're
doing it wrong.'' According to the minutes, you said, ``We'll
need documentation to protect us.'' If the aggressive
techniques were legal, why would you need protection? (Appendix
A)
Colonel Beaver. This e-mail was not written by me, so I
can't account for its accuracy, except that of--somebody from
the CITF wrote it. But, separate from that, regarding Jonathan
Fredman participating in a meeting that I held, I had held a
number of meetings to discuss interrogation techniques once the
military intelligence personnel wanted to do more aggressive
techniques. So, I thought it was in the best interests of all
concerned that everyone participate in meetings, including the
law enforcement community, to understand where everybody was
coming from. CITF was invited, and did participate.
I don't remember what Mr. Fredman said, nor do I remember
what I said, specifically. But, certainly when--in terms of
requesting additional techniques, I can only think that what I
was referring to was--these techniques were not contained in
the Army Field Manual, and they were not contained in an
approved manual of some sort that was recognized by the
Services. So, in terms of obtaining command approval, I believe
I was referring to just that, that these techniques, whatever
was going to be recommended by the Military Intelligence
Community, would need to be approved by the appropriate
authority, because they are--weren't already techniques that
were trained and taught at Fort Huachuca, and contained in the
Army Field Manual.
Chairman Levin. What was the reference to protection? You
said, ``If the''--why would you need--first of all, did you
say, ``We'll need documentation to protect us''? What were you
referring to? Legal opinion?
Colonel Beaver. Again, this is not my e-mail so I can't say
with certainty I said that.
Chairman Levin. All right. What about Mr. Fredman's
statement? Do you remember him saying, ``If the detainee dies,
you're doing it wrong''?
Colonel Beaver. I do not recall anything he--it's 6 years
ago, so I just honestly cannot recall what was specifically
said. What I thought was valuable, in terms of his
contribution, was bringing in other views so that others,
besides myself, in terms of my colleagues in that room, could
listen to another person essentially discuss the Torture
Convention and so forth, and that you could have an open
discussion about this. So, I recall that we did have a good
discussion, and that it was collegial, and that everyone
participated. That's basically what I recall from that meeting.
Chairman Levin. Now, on page 4 of those minutes, you are
quoted as asking, ``Does SERE employ the wet-towel technique?''
Do you remember discussing the SERE techniques? (Appendix A)
Colonel Beaver. I remember the J-2 at the time, Lieutenant
Colonel Jerry Phifer, had brought up the wet-towel technique. I
had never seen waterboarding. I still haven't, as of today.
I've never seen any kind of wet-towel technique. So, that was
one of the things that the DIA personnel and military
intelligence personnel wanted to request. I believe I was
asking about that because I had not ever seen that, myself.
Chairman Levin. Your reference to, ``Does SERE employ the
wet-towel''----
Colonel Beaver. Right.
Chairman Levin.--``technique?''--is that an accurate
reference?
Colonel Beaver. I can say I probably did. I don't remember,
specifically. But, I know that that was one of the techniques
that the interrogators had raised as something that they might
wish to employ.
Chairman Levin. Do you remember discussion about SERE
techniques being used?
Colonel Beaver. What I remember about SERE being discussed
was the fact that if something was going to be approved by a
higher command, which I thought, in this case, would be General
Hill--I had, really, no idea it would go higher than General
Hill--that you would then have to have an SOP, you would have
to have people trained, you would have to do all the kinds of
things to ensure that techniques were used properly and they
would not go beyond what was lawful. So because SERE already
had SOPs on many of these types of techniques, I know I
certainly thought if something got approved--again, a technique
that SERE used--that that could be a good starting point for an
SOP. So it made sense, if somebody were already doing it, is
all I'm saying. So, we could not employ these techniques
without the proper training and controls.
Chairman Levin. Were you aware of the fact that the SERE
program was to be used defensively and not offensively against
detainees? Were you aware of that?
Colonel Beaver. Yes, sir.
Chairman Levin. So, why would you be talking about SERE
techniques in terms of interrogations, since its purpose was
not the interrogation purpose?
Colonel Beaver. Right. From my intelligence colleagues who
were looking to do, basically--or who said, including General
Dunlavey, who was insistent that the detainees were showing
signs of being counter-resistance trained, they were looking
for additional techniques. Because the President had determined
that the Geneva Conventions did not apply, that they were not
to be treated as POWs, then, in the world of, I guess, what--
I'm just--this is my own words, or makes sense to me--if you
know there might be something out there that's within the
military community that might be found to be legal--it wasn't
determined yet, but might be found to be legal--then they would
look to that, because they already understood that things that
were illegal, of course, like torture, was illegal. Of course
they weren't going to ask for something like that. So you look
to something that's already being done, that you can either
``cut-and-paste'' from and learn something from, as opposed to
creating something new that's never been done.
So, I have to assume, because most people know of SERE or
have--some, even at GTMO, had been trained--that that was a
natural sort of jump to--maybe some of the SERE techniques, not
all of them, would be permissible and would be effective. So
they reached out to SERE, and the only people who had
psychologists were the SERE people. So our psychologists, who
weren't trained in that, except in human behavior--also, I
think, it was a natural leap for them to think, ``Perhaps my
colleagues at the SERE school, in behavioral psychology, might
be helpful to me.''
Chairman Levin. You call a ``natural leap,'' though--but,
you were aware that, as a matter of fact, it was exactly the
reverse purpose.
Colonel Beaver. No, I understand what you're saying,
Senator Levin. I'm just----
Chairman Levin. But, were you aware of it at the time, when
you talked about SERE techniques----
Colonel Beaver. Well----
Chairman Levin. Well, wait a minute.
Colonel Beaver. Yes, sir.
Chairman Levin.--that the purpose of those techniques being
used was to inoculate our troops, and that these were students
that were being trained to be prepared for the application of
those Geneva-violative techniques against them? Were you aware
of all that? Yet, you call that a ``natural leap,'' when----
Colonel Beaver. Well, I----
Chairman Levin.--the purpose was exactly the opposite
purpose of what that program is intended to provide?
Colonel Beaver. Sir, later I became aware of much of this.
At the time, General Dunlavey did not include me in these
conversations. The people he sent to the SERE school at North
Carolina--was not in any conversation I was involved in. So,
I'm just posturing what I think my colleagues thought about
when they're thinking, ``If--again, an interrogation technique
that might be useful, that SERE employs, go to the SERE school
and check it out for ourselves.'' I'm just, again, saying that
on behalf of my colleagues.
Chairman Levin. Were you surprised that neither the DOD
General Counsel nor any of the staff there produced a written
legal analysis for General Dunlavey's request?
Colonel Beaver. I can only speak from the military chain of
command, up to Jane Dalton--Rear Admiral, sorry, retired, Jane
Dalton. I tried to get help from Colonel Manny Superville, the
staff judge advocate at SOUTHCOM, and he was silent on my
request. In fact, I reached him at the golf course on Columbus
Day weekend, which was a 4-day holiday for SOUTHCOM, and spoke
to him, and said, ``I'm sending up this draft. I really need
your help.'' There was no response.
At some point--and I can't say what date--I talked to
Captain Dalton and asked for her help, and she told me that I
needed to speak to Colonel Superville, which, of course, I said
I did and he wouldn't help. So, I basically understood I was on
my own, as it were, regarding the military.
I really had no idea, until 2004, when Mr. Haynes released
my legal opinion at a June 22, 2004, press conference, of many
of the other things that had occurred since I had retired from
Active Duty. So, I reached out within my military community and
no help--and also, once I submitted my opinion, with the
request from General Dunlavey, to SOUTHCOM, I never received a
phone call, I never received an e-mail, I never received
anything from Colonel Superville or his staff asking me
anything, like, ``are you a lunatic? what were you thinking?''
or, ``great opinion,'' or--I received nothing from him; and,
until it came back down from the SECDEF, I had no idea what was
going on. I fully expected General Hill to make that policy
decision.
Chairman Levin. Did you expect there would be different
additional legal analysis and that your----
Colonel Beaver. Yes, sir.
Chairman Levin.--opinion----
Colonel Beaver. I certainly----
Chairman Levin.--wait a minute--that your opinion would not
be the one that would be relied upon?
Colonel Beaver. No, sir. In fact, one of the reasons----
Chairman Levin. ``No, sir,'' you----
Colonel Beaver. Oh, sorry.
Chairman Levin. My question was----
Colonel Beaver. I'm sorry.
Chairman Levin.--were you surprised that your opinion
became the opinion that was relied upon? Did----
Colonel Beaver. Shocked.
Chairman Levin.--you expect--shocked, okay. Why were you
shocked?
Colonel Beaver. Because one of the reasons I had explained
to Colonel Superville that I needed his input was because--and
people that are in the moment, or the people that are
participating on the island in the interrogations, don't always
have the best perspective, and so, to get it off the island was
my goal, to get it to General Hill, where people had all the
resources at their command; they could call military justice
experts, whatever--anyone they needed to. To make, if you want
to say, a calm, rational, objective decision, I thought, was
the best thing possible. So, I fully expected General Hill's
staff to write up something and then also perhaps approve a
very narrow set of interrogation practices; and, again, was
very surprised when that did not happen.
Chairman Levin. General Hill was the SOUTHCOM Commander.
Colonel Beaver. Yes, he was.
Chairman Levin. Okay, thank you.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
Admiral Dalton, did you ever see Lieutenant Colonel
Beaver's memo?
Admiral Dalton. Yes, Senator, I did.
Senator Graham. Did you ever get a request from her to give
her your opinion?
Admiral Dalton. Senator, I don't recall the telephone
conversation that Colonel Beaver related.
Senator Graham. So, when you saw it, what did you think?
Admiral Dalton. When I saw the memo, I believed that there
were some serious deficiencies in it.
Senator Graham. Who did you tell?
Admiral Dalton. The first thing as I recall, I discussed
the memo with my staff. I don't recall that, at that time, I
discussed the memo with anyone else.
Senator Graham. Mr. Mora, did you ever--do you recall
seeing Lieutenant Colonel Beaver's memo?
Mr. Mora. Yes, Senator.
Senator Graham. What did you think?
Mr. Mora. Sir, I thought it was an inadequate treatment of
very sensitive and very difficult issues.
Senator Graham. What did you do?
Mr. Mora. I immediately took it to Mr. Haynes and pointed
out that fact to him.
Senator Graham. Lieutenant Colonel Beaver, I understand--I
think I understand, better than I've ever understood, the role
you played in this. Bottom line, no one made you write this
memo. That was your own work product, correct?
Colonel Beaver. Yes. Based on Lieutenant Colonel Dunlavey's
request to send up interrogation techniques to General Hill, it
would not have been appropriate for me to simply say ``no legal
objection'' or ``no comment.''
Senator Graham. But, there was no pressure for you to reach
the conclusion----
Colonel Beaver. No. There was no pressure. It was generated
by me and my staff at the request of the Military Intelligence
Task Force.
Senator Graham. You felt you were hung out a bit?
Colonel Beaver. I have no animosity, but I understood, at
the time, I was hung out by the SOUTHCOM Staff Judge Advocate--
--
Senator Graham. Okay.
Colonel Beaver.--certainly.
Senator Graham. Fair enough. During this debate about what
kind of techniques may be employed in the future, it was all to
try to get better information. That's correct?
Colonel Beaver. Yes, sir.
Senator Graham. All right. Was waterboarding mentioned?
Colonel Beaver. The discussion--maybe in two parts I can
answer this. One, there was a Navy doctor who just happened to
be assigned on the hospital staff, who was deployed there for 6
months, and he had been at the Navy SERE school for--I could be
wrong--2-years assignment. He relayed to myself, as well as
members of the intelligence community at GTMO, that he had
observed--and, again, I could be wrong, if it was 2,000 or
3,000 sailor servicemembers who had been through that school
and had endured waterboarding. He described it to me and said
that, out of that number, only two failed--and I'm using his
words--failed to give it up, and that was that--there were two
SEALs who were used to controlled drowning. He said everyone
else gave it up. So, I became aware of that for the first time,
as well as members of the intelligence--and I say
``community,'' because there were many different people there
from different commands, as well as DIA. So what Jerry Phifer
and a few of the others discussed was not the--literally the
board, but putting a wet towel on your face to make you----
Senator Graham. So, bottom line, it's fair to say that
someone was contemplating potentially using this technique.
Colonel Beaver. If it could be done legally, and in terms
of the medical review of the detainee and those kinds of
things, in a very controlled, supervised setting, yes.
Senator Graham. Sure. Okay.
Colonel Beaver. But only--and part of this is that you
don't jump to one thing first. Much of it that I learned from
the professionals, is that you build, you use what works.
Senator Graham. Sure.
Colonel Beaver. That could be just interviewing, and so,
it's not just a matter of, I think, an impression of ``everyone
gets the waterboard.''
Senator Graham. If I asked you the question, ``Does the
UCMJ prohibit waterboarding?'' What would you say?
Colonel Beaver. I think that's a difficult answer, and
that's what I struggled with in my opinion. I'm not a military
justice expert, and I tried to raise----
Senator Graham. What is your legal background?
Colonel Beaver. I'm a jack-of-all-trades, basically. I've
done a little bit of everything--administrative law, criminal
law, I've been a prosecutor, intel law. I've deployed with
Special Operations Command in Operations Desert Shield/Desert
Storm psychological operations. So, just really, a number of--
I've been a----
Senator Graham. So, when you called Admiral Dalton, what
were you trying to get from her?
Colonel Beaver. Because Manny wouldn't help me, I was
trying to get help from her staff in dealing with some of these
difficult issues.
Senator Graham. Admiral Dalton, why didn't you come in and
help?
Admiral Dalton. As I indicated, sir, I don't recall that
specific conversation.
Senator Graham. Once you saw the memo and you had concerns
about it, why didn't you do what Mr. Mora did?
Admiral Dalton. What I did, Senator, when I received the
memo, was--I recognized that there were policy and legal issues
involved, and I decided that what I needed to do at my level
was to conduct a further legal and policy review, as General
Hill's memo had requested.
Senator Graham. Yes.
Admiral Dalton. So I asked my staff to begin doing legal
research, and we began setting up a legal and policy review.
Senator Graham. What were your conclusions?
Admiral Dalton. Of the legal and policy review, that--I did
not actually conclude that process at that time.
Chairman Levin. Mr. Mora, how long did it take you to
understand this was the wrong road to go down?
Mr. Mora. Sir, as soon as I heard the rumor that abuse was
going on in GTMO, I acted, every single day, until the
rescission of those interrogation authorizations were made by
Secretary Rumsfeld, approximately 3 weeks later. But, when I
saw the December 2nd Rumsfeld memo, and then reviewed
Lieutenant Colonel Beaver's legal memorandum, when I saw that
the memorandum was completely unbounded concerning the limit of
abuse that could be applied to the detainees, I knew
instantaneously, sir, that this was a flawed policy decision
based upon inadequate legal analysis.
Senator Graham. Is it fair to say, some of the senior judge
advocates shared that view?
Mr. Mora. Sir, every judge advocate I've ever spoken to on
this issue shares that view.
Senator Graham. Given what you know about the way we're
doing business now, do you think we're in the right place?
Mr. Mora. Senator, I'm not current on what the actual
policies and practices are today. My impression is that the
military is in the right place. I have doubts about the
intelligence community, however.
Senator Graham. Thank you. All right.
Nothing further.
Chairman Levin. Senator Pryor.
Senator Pryor. Thank you, Mr. Chairman.
Lieutenant Colonel Beaver, let me start with you, if I may.
Just for clarification, you did not attend that September 2002
conference up at Fort Bragg.
Colonel Beaver. No, I did not.
Senator Pryor. You really don't know, really, the purpose
of that conference? For example, you don't know if it was
recommended there that we use these SERE techniques in an
offensive manner. You don't know anything about that, right?
Colonel Beaver. I think what I knew at the time was that
the psychological--or, we called them the ``Biscuits,'' the
Behavioral Science Team (BSCT), which was a psychiatrist and, I
believe, a psychologist, would gain benefit by talking to their
counterparts at the SERE school, and that also the--I think the
military intelligence contingent that went was there on a so-
called factfinding mission.
Senator Pryor. Is it your view that the purpose of that
factfinding mission was to try to take some of the techniques,
et cetera, from SERE and begin to use them offensively against
detainees?
Colonel Beaver. To see if any of the techniques were--
should be considered to be used, yes.
Senator Pryor. Yes, that's an important question. In other
words, your understanding at the time was, part of the purpose,
at least, of that conference was to see if you could apply the
SERE techniques to the detainees at GTMO.
Colonel Beaver. I believe, based on what General Dunlavey
told us at a staff meeting after the fact, I mean after the
participants had gone there, that his purpose was to find out
what could be used, because he was looking at sending up a
request for additional techniques. So, yes.
Senator Pryor. Okay. That's interesting. Let me ask this.
In your opening statement, you said, ``In short, the
interrogation techniques discussed in my legal opinion would
not have been conducted in an abusive or unlawful manner if the
approval and control procedures I outlined were followed.'' So,
are you saying that waterboarding should--is justified, as long
as there's the proper controls there?
Colonel Beaver. No, what I meant was--I didn't approve
anything; I wrote a legal opinion. So, whatever the commander--
well, as it turned out, the SECDEF approved, it would be
applied in a manner to prevent it from being used abusively.
So, the SECDEF never approved waterboarding, so it was never
anything that was considered. But, I did not--I was not the
approval authority. So, I think what I was trying to refer to
was that an aggressive interrogation had to have a legal
review; there had to be a full--the medical team, everyone had
to be involved before you could apply a plan, because it has to
have a purpose. It can't be sadistic; it has to be for a
governmental purpose. This isn't about just doing something
because you can; it's about eliciting intelligence.
Senator Pryor. Okay.
Colonel Beaver. So, if we had a plan in place that had been
reviewed and approved by the commander, and--again, assuming
whatever had been approved by, in this case, the SECDEF--then
you would have a lawful interrogation plan, conducted lawfully,
not abusively.
Senator Pryor. Okay. Let me ask--you've referred to this
legal opinion. Are you referring to the October 11, 2002,
opinion signed off on by General Phifer? (Appendix A)
Colonel Beaver. Jerry Phifer is a Lieutenant Colonel.
Senator Pryor. I'm sorry.
Colonel Beaver. J-2.
Senator Pryor. Colonel Phifer, yes. Is that the memo----
Colonel Beaver. That's my legal opinion, yes, sir.
Senator Pryor. Okay. So, in other words, you drafted that.
Colonel Beaver. Yes. Ultimately, I had some subordinates
that helped me, but I signed off on the final.
Senator Pryor. All right. Let me ask, if I can--at tab 7,
there's a memo that we've referred to already. It's tab 7, it's
a 5-page memo, and I'm going to go right to page 2 of 5. At the
beginning of the memo, it says, ``The following notes were
taken during the aforementioned meeting at 13:40 on October 2,
2002. All questions and comments have been paraphrased.''
(Appendix A)
Colonel Beaver. Yes, sir, that was done by the CITF
personnel.
Senator Pryor. You referred to this with Senator Levin, and
that it is a paraphrase, and you don't know how accurate it is.
Some of this, you don't recall. Is that right?
Colonel Beaver. Not from 6 years ago, no, sir.
Senator Pryor. When did you first see this memo?
Colonel Beaver. I think, March, before I spoke to the
Senate staff.
Senator Pryor. Okay, so in the last year, sometime this
year?
Colonel Beaver. This past March.
Senator Pryor. Okay. You've reviewed this memo, right?
Colonel Beaver. I've seen it, yes, sir.
Senator Pryor. Do you have any questions about the accuracy
of your statements in there?
Colonel Beaver. There's no way for me to know if my
statements are accurate, because it's 6 years ago, and there's
no way for me to recollect what I exactly said or how the CITF
personnel chose to phrase a particular issue or the importance
they put on it. So, I don't ascribe any malintent towards them,
but I'm just saying there's no way for me to say what they are
saying is accurate.
Senator Pryor. Let me ask about an impression I have, and
that is on page 3, for example. You come across in this as
being eager to have these techniques used. Colonel Cummings
says, ``We can't do sleep deprivation.'' You say, ``Yes, we
can, with approval.'' Then, I think this next statement is
attributed to you, although it's not clear. It says,
``Disrupting the normal camp operation is vital. We need to
create an environment of controlled chaos.'' We could go down
through some of the statements in here. But, at that time, do
you remember, were you trying to get to the answer that we
could use these SERE techniques against the detainees?
Colonel Beaver. I can say that my counterparts in the CITF
were very unhappy with this line of discussion. I offered them,
always, to participate. I offered them to write their own legal
opinion, which they never did. They wrote a policy piece,
which--I understood the policy concerns already, but I never
received any legal objections based in the law. So, I know that
they were all very unhappy with me at that point.
Senator Pryor. Unhappy with your conclusions?
Colonel Beaver. With me having discussions at all about
aggressive interrogation techniques.
Senator Pryor. In other words, they did not like this
policy direction?
Colonel Beaver. No, they wanted the law enforcement
techniques only, and so you had the clash of law enforcement
and intelligence interrogators, which--they saw their role as
being the one that should be taken.
Senator Pryor. Let me ask this. There's a conversation in
here about sleep deprivation, and you're quoted as saying--
again, I know this is----
Colonel Beaver. Right, I understand.
Senator Pryor.--paraphrased--you're paraphrased as saying--
--
Colonel Beaver. Yes.
Senator Pryor.--``True, but officially it is not happening.
It is not being reported officially. The ICRC is a serious
concern,'' which is the Red Cross.
Colonel Beaver. Yes.
Senator Pryor. So, it sounds to me like, in addition to
advocating this, you maybe were trying to cover this up, as
well.
Colonel Beaver. No, sir. I was the liaison to the ICRC, and
I worked very well with them. I believe--and, again, it's hard
to reconstruct something 6 years later--if you have someone in
active interrogation, and then the ICRC visits and wants to see
that person, you can't stop your interrogation to take them
out, and disrupt what you're trying to do. So at different
times, the ICRC would be down there; and so, they would be
there for 6 weeks and leave. So, I can only, the hazard that
what I was referring to is, if you're going to do a more
intense interrogation that would last a longer period of time,
you had to make sure that you had the time to do it, and that
you weren't disrupted.
Senator Pryor. Did--and when you say ``disrupted''--in
other words, you would rather not have the ICRC----
Colonel Beaver. No, they had access to the--they talked to
all the detainees. But, if you're in the middle of an
interrogation and they want access to a particular detainee,
you can't disrupt your interrogation to have them be
interviewed by the ICRC.
Senator Pryor. Let me ask this, because I'm just about out
of time. In response to one of Senator Graham's questions, you
said that you were not that familiar with UCMJ?
Colonel Beaver. No, I said I wasn't a military law expert.
We have experts in the Army who do this for a living, and my
hope was that, when my opinion went up to General Hill, that my
concerns about military personnel being involved with these
aggressive techniques would be appropriately addressed by
people who do this full time. We call it Trial Counsel
Assistance Program. But, anyway, the people that look at these
issues and would have the time and the resources to address
those issues. But, I was very concerned about the military.
Senator Pryor. This will be my last question, Mr. Chairman;
thank you for your patience--but, in your legal analysis at the
time, did you look at the UCMJ?
Colonel Beaver. Yes.
Senator Pryor. Did you look at U.S. Law?
Colonel Beaver. Yes, sir.
Senator Pryor. Did you look at the U.S. Constitution?
Colonel Beaver. Yes, sir.
Senator Pryor. Did you look at the Geneva Conventions? Did
you look at the Army Field Manual?
Colonel Beaver. Yes, sir.
Senator Pryor. Do you have memos or documents with your
legal analysis based on your review of all those materials?
Have you provided those to the committee?
Colonel Beaver. Whatever was retrieved from GTMO, the
committee would have. I was not--6 years later--I didn't take
things with me. It was classified. So, whatever I used came
from human rights courts opinions, all sorts of things. But,
that would have been what the--if DOD had it, DOD would have
provided it. But, the legal opinion was what my analysis
provided on those issues.
Senator Pryor. In other words, at GTMO, did you keep a file
with all your legal research in it?
Colonel Beaver. I don't know if someone would have kept it,
6 years later.
Senator Pryor. But, did you have one?
Colonel Beaver. At the time, yes, it was on a shared Secret
Internet Protocol Router Network, a secured network.
Senator Pryor. You don't know if that's been provided to
the committee?
Colonel Beaver. I would have no idea. I left GTMO in 2003.
Senator Pryor. Thank you.
Colonel Beaver. But, I provided the basis for it in the
opinion, so you would have seen citations to the various things
that I looked at.
Senator Pryor. Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator Pryor.
Senator Warner.
Senator Warner. Thank you, Mr. Chairman.
I thank this panel for their contribution to this very
serious issue.
I'd like to address my questions to Admiral Dalton. First,
may I congratulate you on a very distinguished career in the
United States Navy, and to have, as a consequence of your
professional abilities, recognized and were given the first
flag rank in the long history of the Navy JAG Corps. Am I not
correct?
Admiral Dalton. Yes, sir. For a woman, yes, sir.
Senator Warner. That's a great commendation to you.
Admiral Dalton. Thank you.
Senator Warner. I listened very carefully to your testimony
today, and I'd like to start off by referring to the Vanity
Fair article, which I presume you've read more than once. On
page 13 of the 17 pages it says, ``At the level of the Joint
Chiefs, the memo should have been subject to a detailed review,
including close legal scrutiny by Myers's own counsel, Captain
Jane Dalton. But, that never happened. It seems that Jim Haynes
short-circuited the approval process. Albert Mora, the General
Counsel of the Navy, says he remembered Dalton telling him,
`Jim pulled us away. We never had a chance to complete the
assessment.' ''
Now, having spent some wonderful years myself in that
building at the Department of the Navy, I have always found,
historically, going back to the times of George Washington, we
have civilian control of the military. That's the way it should
be. It has functioned, and functioned well, throughout the
history of our country. But, within that structure, there's a
certain amount of independence that's accorded the chiefs of
the various military branches--Chief of Naval Operations, so
forth. Then, when we structured the JCS organization and the
Chairman was designated, he was the focal point of the chiefs,
and his responsibility is the chief military advisor to the
SECDEF and the President.
What interests me is the degree to which the chiefs at that
time exercised their independence. This committee--and I was
privileged to be a part of the committee and very active in
writing Goldwater-Nichols, and that was the law at the time
this situation occurred, and that gave an avenue by which
members of the JCS--indeed, the Chairman--if they had
disagreements with certain policy matters, could address them
directly to SECDEF and, if necessary, to the President. You're
familiar with that procedure. Have I stated it correctly?
Admiral Dalton. Yes, sir.
Senator Warner. Was any consideration given at that time by
the senior military, either the Chairman or members of the
tank, to exercise the rights under Goldwater-Nichols to bring
to the attention of higher authority their concerns about this
policy change?
Admiral Dalton. Senator, I'm not sure what policy change--
--
Senator Warner. The use of more aggressive techniques for
the detainees at GTMO, the memorandum that we've been
discussing here in some detail.
Admiral Dalton. Yes, sir. At the--well----
Senator Warner. In other words, this article--and I think
you've confirmed it's correct--you stopped your analysis, which
you were doing for the Chairman--at that time, Richard Myers,
am I correct?
Admiral Dalton. Yes, Senator.
Senator Warner. All right. Now, to me, that was a variance
in normal procedures, and the Chairman was entitled to the
benefit of your professional expertise and knowledge in your
own independent legal analysis. He had, I think, a duty as
chief, to go into the tank and discuss it. Was it ever
discussed in the tank?
Admiral Dalton. Senator, let me just clarify. When the memo
came in from General Hill asking for the enhanced techniques
on--the memo was distributed to the Services, and the Services,
as has already been mentioned, provided their inputs.
Senator Warner. Correct.
Admiral Dalton. They asked for--they--the Services----
Senator Warner. Now, the ``they'' being the Services
``asked for''?
I want to define who ``they'' is.
Admiral Dalton. I'm sorry. Yes, sir. The Services sent in
responses to the Joint Staff tasker asking for inputs on the
General Hill memo. All of the Services expressed concerns about
the techniques that were listed in the memo. They also
expressed their understanding and appreciation for the need for
intelligence, and good intelligence.
Senator Warner. Correct.
Admiral Dalton. Then my recollection is that all four of
them suggested that there needed to be further legal and policy
review, as General Hill had suggested in his memo.
Senator Warner. Correct.
Admiral Dalton. So, the next step, then, was to proceed
with a larger general and policy review, which is what I
intended to do.
Senator Warner. Correct. Not only intended, but you
initiated.
Admiral Dalton. I initiated--yes, that's right, Senator.
When I learned that Mr. Haynes did not want that broadbased
legal and policy review to take place, then I stood down from
the plans.
Senator Warner. Let's now clarify exactly how you were told
to stand down. Was it in writing, or was it verbal?
Admiral Dalton. It was not in writing, Senator, and the
best of my recollection as to how this occurred is that the
Chairman called me aside and indicated to me that Mr. Haynes
did not want this broadbased review to take place, and that I
should not continue to interact with--the Chairman's words were
not this detailed; it was a very brief meeting, where he called
me aside and said, ``Mr. Haynes does not want this process to
proceed.''
However, that did not mean that I then stopped doing all
legal analysis or all legal review. I continued to engage with
Mr. Haynes's office. This is the piece that I think has not
necessarily been clear, is that when I stopped the analysis
that would have included the Services and the DIA and Fort
Huachuca and all of those various agencies, nevertheless, I
continued to work with Mr. Haynes's office and with the
Chairman, in terms of reviewing and analyzing General Hill's
request.
So, at that time, there was no perceived need to go to the
chiefs and complain about anything, or to the President and
complain, or the Secretary, because the process was still
proceeding, in that I understood that this was a very sensitive
issue, that Mr. Haynes wanted this to be held very close-hold,
and I believed that his prerogative as the chief legal officer
of the Department was to have his office take the lead; I would
provide support to the Chairman and work with Mr. Haynes's
office.
Senator Warner. When he created the final product, what was
your professional analysis, at that time, and advice to the
Chairman?
Admiral Dalton. Sir, based on the discussions and the
interaction that I had had with Mr. Haynes's office, with GTMO,
with SOUTHCOM, I believed that the techniques that the
Secretary approved, in the context in which they were discussed
and in which he approved them, could, in fact, be conducted
humanely, in accordance with the President's----
Senator Warner. Humanely? Is that the word you used?
Admiral Dalton.--yes, Senator, humanely--in accordance with
the President's direction that the detainees were to be treated
humanely.
Senator Warner. Did you feel they were consistent with
international and domestic law and other laws of the United
States?
Admiral Dalton. If they were conducted consistent with the
discussions that we had had, in terms of the oversight, the
supervision by the commander, with, in fact, supervision by the
staff judge advocate, and, again, in the context in which they
were discussed.
Let me explain, if I may, that the removal of clothing was
not nudity. There was never a discussion that that would
involve nudity. The use of military working dogs was not to
have working dogs in an interrogation booth, unmuzzled and
snarling at detainees. That's not what the Secretary approved.
The use of stress techniques was limited to standing for 4
hours. So, when you put all of these factors together with the
oversight, with the fact that the President had mandated that
the detainees be treated humanely, then I believe that, in
fact, they could be conducted--those techniques could be
conducted consistent with both international and domestic law.
Senator Warner. It's noted in this article that General
Myers made a point that, ``My initials are not on the
document.'' Does that indicate that he had some reservations
about this? Did he express some of those reservations with you?
It says, ``Normally, he would have initialed a memo to indicate
approval, but there was no confirmation that Myers had seen the
memo or formally signed off on it.''
I can't digest this that quickly. Can you clarify that at
all?
Admiral Dalton. Just one second, sir, please. [Pause.]
Senator Warner. What's this? Who handed me this? What am I
supposed to do? What does it say?
Would you finish? I'm sorry.
Admiral Dalton. Excuse me, Senator.
Senator, in the days leading up to Mr. Haynes's memo of
November 27, which was then approved by the Secretary on
December 2, there were meetings at the SECDEF level, involving
General Myers, involving Mr. Haynes, and myself. In those
meetings, we discussed the various techniques, the safeguards
that would be applied. My understanding and my recollection is
that General Myers was satisfied with the techniques that the
Secretary approved.
Senator Warner. All right, thank you. My time is up.
Chairman Levin. Thank you, Senator Warner.
Senator Reed.
Senator Reed. Thank you very much, Mr. Chairman.
Admiral Dalton, as you've indicated in your testimony, when
you received the request--when General Myers received the
request, the Joint Staff solicited the opinion of Service JAGs.
You say they raised concerns, but these are very significant
concerns. The Army JAG said that the stress positions,
deprivation of light and auditory stimuli, and use of phobias
to induce stress crosses the line of humane treatment.
The Chief Legal Advisor of the CITF at GTMO said that
certain techniques may subject servicemembers to punitive
articles of the UCMJ.
The Air Force said that the techniques may fail to meet
requirements ``to treat detainees humanely.''
The Marine Corps said several techniques arguably violate
Federal law and would expose our servicemembers to possible
prosecution.
Admiral Dalton. Yes, sir.
Senator Reed. That was an accurate summary?
Admiral Dalton. Yes, Senator.
Senator Reed. Did you make General Myers aware of all those
concerns?
Admiral Dalton. Senator, my recollection is that the
decisionmakers were aware that there had been concerns----
Senator Reed. No, I'm asking you specifically, as the
counsel to the Chairman of the JCS, did you make him fully
aware of the various serious concerns that were raised by
uniformed officers of the United States military?
Admiral Dalton. Senator, I don't recall the specific
conversations that I had with the Chairman, but, it is my
recollection that he was aware of these concerns and that I
made him aware of those concerns, yes, sir.
Senator Reed. Did he make Mr. Haynes aware of those
concerns?
Admiral Dalton. I don't know, sir. Senator, in the
conversations that we had and the meetings that we had, my
recollection is that those concerns were taken into account and
addressed as a part of the overall context of the
conversations. I don't recall that anyone specifically pulled
out memos and showed the memos, but that we were aware that
there were concerns, and those concerns were addressed in our
discussion of the safeguards and the way that the techniques
would be implemented.
Senator Reed. You just said that you continued discussions
with Mr. Haynes, although you were told--and I think you made
it very clear, you were essentially told, through General
Myers, to stop any formal legal analysis to reach a formal
conclusion. Is that correct?
Admiral Dalton. I was told to stop the broadbased legal
review and policy review that would have involved the Services
and the other agencies, like Fort Huachuca and DIA. I was told
to stop the broadbased analysis.
Senator Reed. But, you were told--or, not dissuaded by
General Myers, to continue to evaluate all of these options in
conjunction with Mr. Haynes.
Admiral Dalton. I'm sorry, sir, I didn't understand--
General Myers did not prevent me from continuing the
discussions with Mr. Haynes, sir.
Senator Reed. So, were you privy to all discussions with
Mr. Haynes on these topics?
Admiral Dalton. I'm sure I was not, sir.
Senator Reed. So, selectively, you participated. You
participated not in every discussion, but in ``several
discussions'' is fair.
Admiral Dalton. Yes, Senator, I--yes, sir.
Senator Reed. Did you raise these concerns? Not in citing
formal memoranda, but raise specific concerns, the violation of
UCMJ?
Admiral Dalton. Senator, I don't--again, I have a hard time
recalling the specifics of any particular conversation in a
particular meeting. I believe these concerns were known and
addressed, and as I said before, in the context of the meetings
and the conversations that we had, we recognized that there
were issues related to UCMJ concerns, there were issues related
to Federal- and domestic-law concerns, as well as international
law.
Senator Reed. You were satisfied these concerns were fully
addressed by Mr. Haynes, or by someone.
Admiral Dalton. I was satisfied--yes, Senator, I was
satisfied that in the context of the discussions we had, those
concerns were addressed.
Senator Reed. You mentioned the fact that--and, I think, in
response to Senator Warner--that General Myers signed off on
the techniques.
Admiral Dalton. Yes, sir, he's--I'm sorry, he--as stated
in----
Senator Reed. He failed to object.
Admiral Dalton.--as stated in Mr. Haynes's memo, he agreed
that the approval of those techniques could be conducted
consistent----
Senator Reed. Right.
Admiral Dalton.--with----
Senator Reed. You read Mr. Haynes's memo?
Admiral Dalton. Yes, Senator.
Senator Reed. At the time it was released? Contemporaneous
with the release?
Admiral Dalton. Shortly after the release.
Senator Reed. Did you have any questions about the legal
sufficiency of this memorandum?
Admiral Dalton. I specifically did--I was not asked to
opine, and I don't recall that I opined on the details, but I--
there was one phrase in the memorandum which said that,
arguably, all of the techniques would be legal or authorized,
including the three that were not authorized. I was not asked
to opine on the memo, but I did not necessarily believe that
that was correct.
Senator Reed. Did you feel you had an obligation to General
Myers, since he was referenced in this memo, as concurring or
at least giving some non-objection to advise him that there
were elements here that you thought had serious legal problems?
Admiral Dalton. Sir, I wasn't aware of the memo until after
Mr. Haynes had initiated it and the Secretary had signed it. It
was shortly----
Senator Reed. If the memorandum had legal conclusions that
you significantly disagreed with, didn't you feel an obligation
to at least make General Myers aware of this?
Admiral Dalton. After the fact, Senator?
Senator Reed. Sure.
Admiral Dalton. Since the Secretary had not authorized
those techniques, I didn't feel that it was necessary to go
into a lot of detail with the Chairman about whether or not
every word in the memorandum was correct. The Secretary
authorized less than the full category of techniques, and
that's what I was satisfied with and what General Myers was
satisfied with.
Senator Reed. The memorandum essentially said that all
these techniques are legal, the category 3 techniques, but, as
a matter of policy, we're not going to have a blanket approval.
(Appendix A)
Admiral Dalton. Right. Yes, Senator.
Senator Reed. Leaving it up to--leaving the issue that
these are legal techniques--at least the official opinion
endorsed by the SECDEF is, these are legal techniques, correct?
Admiral Dalton. I would not----
Senator Reed. What did----
Admiral Dalton. I'm sorry.
Senator Reed. No, I--go ahead. Excuse me.
Admiral Dalton. Senator, I would not say that that was the
legal opinion endorsed by the SECDEF. The SECDEF was approving
the use of particular techniques. As to whether or not other
techniques might or might not be legal, if the combatant
commander wanted to use those techniques, he would then have to
come up and ask, and there could then be a separate and
additional review. It was not necessary to reach that question,
given that the Secretary approved the ones that he did.
Senator Reed. But, the only reason that this is not a
blanket approval is a matter of policy, not of law. As I read
this, category 3 techniques may be legally available, but, as a
matter of policy--that's what this--what it says, essentially.
You didn't think--you thought that was an appropriate legal
analysis?
Admiral Dalton. No, sir, I did not think that was an
appropriate legal analysis. I did not think it was necessary to
engage on that subject, since the Secretary had already
approved the techniques, and that was what we were providing to
the combatant commander.
Senator Reed. You are aware of Lieutenant Colonel Beaver's
memorandum, is that correct?
Admiral Dalton. I am, Senator.
Senator Reed. You read it?
Admiral Dalton. I did, sir.
Senator Reed. In her memorandum, she said, ``Regarding
UCMJ, the proposal to grab, poke in the chest, push lightly,
and place a wet towel or hood over the detainee's head would
constitute a per-se violation of Article 128 assault.'' One of
the techniques that you approved was pushing or poking lightly.
Do you disagree with her analysis?
Admiral Dalton. I disagree with that analysis, yes.
Senator Reed. How about Article 93 of the UCMJ, which
forbids maltreatment of anyone under the control of military
personnel?
Admiral Dalton. Senator, I did not view light pushing and
poking with a finger to be maltreatment.
Senator Reed. All right. You would also disagree with
Colonel Beaver in her suggestion that, because of the potential
violation of UCMJ, there would have to be some type of immunity
or--you disagree with that?
Admiral Dalton. That's correct, sir. I don't believe that's
correct.
Senator Reed. Mr. Mora, what's your view with respect to
Article 128 and Article 93 of the UCMJ?
Mr. Mora. Senator, I'm not a specialist in that area. I
never focused on those specific matters. My concern with the
memorandum is that it did not include a bright line of abuse
which could not be transgressed. For example, you look at
Lieutenant Colonel Beaver's memorandum, and nowhere does it say
that, ``You may engage in these tactics just until you reach
the point where it reaches cruel, inhuman, and degrading
treatment, and you may go no further.'' Because there was no
such boundary anywhere in the memorandum, it was all subject to
abuse.
Senator Reed. Colonel Dalton, I have a final question. Part
of your rationale for agreeing with the conclusion is the fact
that you object--and you've indicated certain objection to
techniques that may or may not have been approved legally by
Mr. Haynes. But, you keep citing the ``conditions.'' Where, in
any of these materials, are there those conditions, as Mr. Mora
refers to, that would give specific guidance? I don't think the
SECDEF signed a memorandum that talked about the conditions.
Are you aware of those conditions that he approved?
Admiral Dalton. Senator, the conditions were in several
different contexts. In the Colonel Phifer memo that came up, it
specifically said--that was attached to General Hill's memo,
Colonel Phifer's memo was the one that listed the techniques--
and that one made it clear that the use of the techniques, at
least the category 3 techniques----
Senator Reed. The Phifer memo said the techniques were
needed. Where is there a direction of the SECDEF that these are
mandatory as part of the use of these techniques?
Admiral Dalton. The only thing in writing from the SECDEF
was his approval of Mr. Haynes's memo. There were meetings
leading up to the Secretary's approval of the memo, and the
context of the conversation was--and of the discussions--were
one particular detainee, the particularly high-value detainee
who had resisted. It was in the context of the discussions.
Senator Reed. Thank you.
Thank you, Mr. Chairman.
Chairman Levin. Senator McCaskill?
Senator McCaskill. Let me start by saying how proud, as an
American, I am of you, Mr. Mora. Courage comes in all forms,
and you showed great courage.
Let me cut to the chase here and see if we can reach some
agreement.
Ms. Dalton and Ms. Beaver, do you both believe that putting
a group of detainees together completely naked, hooded, and
siccing dogs on them is legal under the UCMJ or anything else
that our military should be paying attention to? Do you think
that's legal?
Admiral Dalton. Senator, I don't believe that's legal, and
that was never approved by the SECDEF.
Senator McCaskill. Okay. Ms. Beaver, do you think that's
legal?
Colonel Beaver. No, ma'am, and it never occurred at GTMO.
Senator McCaskill. Okay. All right. I'm reading this legal
memo, and I'm reading the memo by Mr. Feith. Now, I have to
tell you--you're both trained lawyers, correct?
Colonel Beaver. Yes, ma'am.
Senator McCaskill. You both know that words matter a lot in
the law. The difference of one word can make a huge impact on a
legal analysis, and that's what you're trained, as a lawyer, to
understand. Is that correct?
Ms. Beaver?
Colonel Beaver. Yes.
Senator McCaskill. Admiral Dalton?
Admiral Dalton. Yes, Senator.
Senator McCaskill. All right. I'm looking at this memo. It
says, removal of clothing, under category 2, and it says, under
category 2, using detainee phobias, such as fear of dogs.
(Appendix A) Now, I'm trying to figure out, as a lawyer, how
removal of clothing and using fear of dogs does not envision
naked people--and, by the way, the hood is in there, too--naked
people having dogs sicced on them. How does it not occur to
either of you, that that might be envisioned?
Colonel Beaver. Because, ma'am, in the discussions that the
staff had, when you develop a plan, a professional plan of
interrogation, there are limits and there are conditions, and
there's command approval. If somebody said, ``Let's sic the
dogs on them,'' that would have never happened. That's just not
professional. That indicates something----
Senator McCaskill. But, it did happen.
Colonel Beaver. It did not happen, ma'am.
Senator McCaskill. Dogs were used with naked people.
Colonel Beaver. In the context that you're saying it, I'm
not aware that that ever happened at GTMO.
Senator McCaskill. I'm not talking about GTMO. I'm talking
about within our military, it happened.
Colonel Beaver. My experience is GTMO, and so, I can't
comment on how it came to be that this happened in Iraq.
Senator McCaskill. Ms. Dalton, can you comment on how it
happened?
Admiral Dalton. No, Senator. Those techniques that we're
talking about were approved for GTMO, and GTMO only. They did
not involve nudity, they did not involve siccing snarling
dogs----
Senator McCaskill. You say it doesn't involve nudity. It
says ``removal of''----
Colonel Friend. Can I ask that the witness be allowed to
finish her answer before the question comes again?
Senator McCaskill. I apologize. Go ahead, Ms. Dalton.
Admiral Dalton. Senator, as I was saying, the techniques
approved by the Secretary did not involve nudity, they did not
involve siccing snarling dogs on detainees.
Senator McCaskill. All right. ``Removal of clothing.'' Now,
when you were discussing the safeguards, Ms. Dalton, in these
discussions you had about safeguards, did anybody talk about
putting in the word ``all''? ``Not allowed''? Did anybody talk
about that phrase, that removal of clothing--if I saw ``removal
of clothing,'' and I was trying to get information out of a
detainee, there's nothing there that says ``removal of some
clothing.'' It says ``removal of clothing.'' How would anyone
know, from that guidance, that nudity was not allowed?
Admiral Dalton. Senator, that was one of the specific
questions that was addressed in discussions with GTMO, with
General Miller, and with others concerning these techniques. I
specifically recall that we had discussions about that
particular issue--the people I spoke with--and my recollection
is that it was General Miller--said it did not involve nudity.
Colonel Beaver. Right.
Senator McCaskill. It doesn't say that. There's nothing in
this, as a legal analysis, as a lawyer, that would tell you
that nudity is prohibited. It says ``removal of clothing.'' It
doesn't say ``removal of some clothing.'' It just says
``removal of clothing.'' So, I don't understand how that is a
safeguard.
Let me ask you about this concept I talked about with the
last panel, advance immunity. Are you aware of any concept in
the law, Ms. Dalton, concerning immunity in advance?
Admiral Dalton. I'm not.
Senator McCaskill. Did you read that phrase in Lieutenant
Colonel Beaver's legal opinion?
Admiral Dalton. I did.
Senator McCaskill. Did it jump out at you?
Admiral Dalton. Yes, Senator, it did. It was one of the
issues in the legal memo that I thought was not accurate or
correct.
Senator McCaskill. Did it concern you that a legal opinion
that people were relying on contained a concept that, on its
face, would be illegal, which it would be, to give somebody
immunity in advance?
Admiral Dalton. Senator, that's my understanding of why
both Colonel Beaver and General Hill asked for additional legal
and policy review. That's why I believe that there needed to be
additional legal and policy review at the Joint Chiefs or at
the OSD General Counsel level.
Senator McCaskill. Okay. Your opinion--and, by the way,
Lieutenant Colonel Beaver, I feel for you today. This is hard,
and I think you're a good American, and I think that you were
asked to do something. I don't really understand how it
happened. My job is to figure that out and try to make sure it
never happens again.
I'm reading from your legal memo, where you say, ``I
agree''--you say, ``The proposed strategies do not violate
applicable Federal law.'' Do you still stand by that opinion?
Colonel Beaver. At the time I wrote that opinion, the law
was such that I believed that the law allowed a lot. I'm not
talking about policy. I'm talking about the law at that time,
with the Geneva Conventions not applying. If you would look at
European Court of Human Rights (ECHR) opinion, when you mention
``hoods,'' frequently even the ECHR would tell you that--I'm
not advocating anything, I'm telling you hoods are allowed in
interrogation.
Senator McCaskill. Okay.
Colonel Beaver. So, even in decisions by the ECHR, which I
looked at--for example, hooding, by itself, is allowed and is
not cruel, and it also is not torture. So, I tried to weigh all
of these things, but I understood that I was at the bottom of
the bottom of the food chain, and that I might not have all the
facts, and I might not be aware of all the issues. I didn't
think of many of the things that I later saw in the opinion--
the 50-page opinion written by the DOJ. So, I was confident
that if this got off the island, and then it went to a command
that was in the continental United States, like SOUTHCOM, where
it could be looked at by people who were not directly involved
in the interrogation of--in the instance of this high-value
detainee, that we thought might have knowledge about another
attack against the United States--that the right policy
decision would be made.
On the military justice point, I did not artfully craft
that section, and that's the only part of my opinion I regret,
because I was trying to highlight my extreme concern for the
military personnel under the command of Major General Miller,
that if techniques weren't lawful, that military police
personnel, in particular, could find themselves maybe--be
prosecuted later. So I did not draft that very well, and I
admit that. But, for me, it was a red flag to people like
Captain Dalton, at the time, to say, ``I'm very concerned about
the military personnel. Please take a look at this.''
Unfortunately, Colonel Superville never responded, so I never
got any feedback until----
Senator McCaskill. Right.
Colonel Beaver. --the SECDEF's memo----
Senator McCaskill. No, I get what happened here. You felt
you were at the bottom, and you needed to move it off the
island, and somebody, I think you said, in a calm and rational
way, was going to look at it. The scary thing for me is that
you put your name on it as the lawyer----
Colonel Beaver. Absolutely.
Senator McCaskill. --who was asked to give a legal opinion,
and then, of course everyone wanted to glob on your opinion,
because--why should they have to take the heat if you'd already
done it for them? Here's what I want to--if I can, before--I
know my time's up, but let me just finish this point. In your
statement, you have said, in interviews with the staff, that
you didn't feel pressure from anyone.
Colonel Beaver. I did not, ma'am.
Senator McCaskill. Okay. I'm trying to figure this out. You
said in your memo, ``The proposed strategy is not violative of
applicable Federal law,'' but the whole phrase is, ``agree that
proposed strategies do not violate Federal law.'' Who were you
agreeing with?
Colonel Beaver. I'm not sure. It was my opinion. I don't
recall that phrase. I'm sorry. I just----
Senator McCaskill. Yes. Well, that's what you said. You
wrote, ``I have reviewed the memorandum, and I agree that the
proposed strategies do not violate applicable''----
Colonel Beaver. Oh, that's just my----
Senator McCaskill. --``Federal law.''
Colonel Beaver. --personal opinion. Perhaps I just didn't
write that artfully. But, I--my opinion is that it doesn't
violate the law.
Senator McCaskill. Okay.
Colonel Beaver. That's with--I had built-in conditions. I
had built-in safeguards with legal opinion, medical
involvement, and so forth. So it was not a blank check. It was
from--what was from my view. If we did this professionally--
there was a legitimate government purpose, there were
safeguards--then there wouldn't be abuses. Because
interrogation is always a gray area, you--unlike what Mr. Mora
says with--there weren't these specific conditions--you can't
come up with all the conditions of an interrogation that, ahead
of time, you can say, ``When it comes to 4 days,'' I don't
know--anyway, and so, I knew that if you would do these reviews
and have these safeguards in place for these interrogations,
that the law would be met. I felt very strongly about that, and
I believed in my colleagues from the intelligence community,
that we would not allow the law to be violated or detainees to
be harmed. I still believe that today, and that's why I believe
there was no violation of the law at GTMO, despite what others
may believe.
Detainees were beaten to death at Bagram, Afghanistan. That
happened in December, before the SECDEF even had time to get
out something, and those detainees were beaten to death. So,
it's more than just what I said.
Senator McCaskill. It's a sad day in this hearing room when
we say, ``Well, it's not that bad. At least they weren't beaten
to death.''
Colonel Beaver. No, I didn't say that, ma'am.
Senator McCaskill. Well, it----
Colonel Beaver. They did not----
Senator McCaskill. --sounded that way.
Colonel Beaver. --the law was not violated at GTMO.
Detainees were not abused. They were treated humanely within
the bounds of the law.
Senator McCaskill. We're--what we're trying to do--and I--
my time's up, and I'll wait for my next round, Mr. Chairman.
Chairman Levin. Thank you.
Senator Graham.
Senator Graham. Thank you.
Colonel Beaver, it's my understanding that the Schmidt-
Furlow report found that, in October 2002, a military working
dog was used as part of an interrogation of a high-value
target, and the dog was brought into the room, directed to
growl, bark, and show the teeth at the detainee. Is that
correct?
Colonel Beaver. I only heard that later. I was not aware of
it at the time. My understanding of the use of the dogs,
because they were bomb dogs, they were not protection dogs,
were that, by roaming the perimeter----
Senator Graham. When did you leave GTMO?
Colonel Beaver. June 2003, sir.
Senator Graham. So, were you there in October 2002?
Colonel Beaver. Yes, sir, I was there. I said, at the time,
I was not aware that that happened. I found out about it later.
Senator Graham. Do you doubt that it happened?
Colonel Beaver. If an investigator found that it happened,
I'm not disputing that, I'm just saying I was not aware of it
at the time.
Senator Graham. So when you said this didn't happen at
GTMO, you're not right.
Colonel Beaver. What I said was approved by the commander
and what was authorized by the commander did not happen.
Senator Graham. Well, who did this?
Colonel Beaver. I don't----
Senator Graham. Did somebody make it up on their own?
Colonel Beaver. I don't know, sir. I didn't do the----
Senator Graham. The report found that it was part of an
interrogation plan.
Colonel Beaver. The interrogation plan that was written did
not authorize the use of dogs in that manner.
Senator Graham. Okay. The report also found that a
detainee--the same detainee was strip-searched in front of
female personnel. Is that correct?
Colonel Beaver. I heard that that happened, yes, sir.
Senator Graham. Okay. Do you know who authorized that?
Colonel Beaver. I do not know.
Senator Graham. So, based on this independent
investigation, we know, at least on one occasion, dogs were
used as part of an interrogation technique at GTMO, and a
person was stripped naked, a man stripped naked in front of
female personnel at GTMO. Is that correct?
Colonel Beaver. Sir, I've heard that that's what the
Schmidt-Furlow investigation found.
Senator Graham. Okay.
Colonel Beaver. I've not seen it for myself. I'm just
saying I take your word for it that that's what was found in
the investigation.
Senator Graham. Mr. Mora, wrap this up. It's my
understanding that when you saw the interrogation techniques
being proposed, you felt a need to speak up, and you did. You
felt a need to continue to speak up, and you did. Is that
correct?
Mr. Mora. That's right, sir.
Senator Graham. You had a lot of military lawyers speaking
up to you that this is not right, what they're proposing, this
creates problems. That's correct?
Mr. Mora. That's also correct, Senator.
Senator Graham. I think we had 35 techniques at one time,
and some of your criticism was listened to and the techniques
were ratcheted down, in terms of number. Is that correct?
Mr. Mora. I'm not sure about how it ended up, Senator. But,
if you're referring to the working group report----
Senator Graham. Yes. This is important for later on. We had
a list of techniques that Rumsfeld signed off on. Then you had
pushback, and you were part of the pushback. Then they re-
evaluated these techniques, and, Admiral Dalton, a new group
came out. That's where the Joint Chiefs and others said, ``We
need to look at this thing again,'' and they did.
Admiral Dalton. Yes, Senator.
Senator Graham. As I understand it, you were never involved
in any final approval of the new techniques. You were sort of
shut out. Is that true?
Mr. Mora. That's correct. We were all engaged in the
working--so-called working group process, and it was--the
working group was generating a draft that was to be issued on
behalf of all the Services. To my knowledge, I thought that the
draft was never finalized, although I learned later, after Abu
Ghraib, that, in fact, the draft was finalized. So, yes, I was
not part of the final approval that led to the final working
group report.
Senator Graham. Colonel Beaver, do you ever recall General
Miller going from GTMO to Iraq as the invitation of General
Sanchez?
Colonel Beaver. Yes, sir. After I left GTMO, he asked me to
travel with him to Iraq at end of August, beginning of
September 2003.
Senator Graham. Now, as I understand his testimony, he went
there to--sent--General Sanchez, said, ``We need to get better
intelligence. We need to know more about these IEDs. Come over
here and help us.'' Is that the nature of the visit?
Colonel Beaver. Yes. They had a number of problems, from
the use of their classified network systems to just basic
interrogation, and also General Karpinski was having
difficulties just in detaining Iraqis, separate from
interrogation, so some military police experts were brought
along.
Senator Graham. Was there any information provided by
General Miller or yourself to people in Iraq that Arabs are
afraid of dogs, and one way to get information is to use dogs
or to humiliate them by taking their clothes off in front of
women?
Colonel Beaver. I don't recall being in a conversation that
that was discussed at all.
Senator Graham. What did you tell the people in Iraq to do?
Colonel Beaver. I had conversations with a number of the
lawyers--Colonel Warren on down--about a number of--if you want
to say, a number of different issues, not just interrogation,
but even detention. I was appalled at how detainees were being
held at a Corps holding area that Karpinski was in charge of,
and the conditions were so severe and so disgusting that it was
hard to believe that Americans were detaining people in that
manner. General Miller was so disgusted, he called up General
Sanchez to get this corrected as soon as possible.
Senator Graham. But, do you--thank you--do you think it's
an accident that the techniques that we're talking about in
GTMO, on at least one occasion--and that's the use of dogs in
interrogation and the stripping down of a detainee in front of
female personnel--wound up migrating to Iraq?
Colonel Beaver. I can say I was certainly surprised when I
saw Captain Wood in Iraq, who had been the MI commander at
Bagram when the two detainees were beaten to death. I was
shocked to see her there, quite frankly. So, I know there were
people that went from Afghanistan to Iraq. She showed me an SOP
that she had written that contained techniques and that she
said the lawyers had approved. So I went up the legal chain of
Mark Warren's to see who had approved these, because I knew, in
a Geneva setting, it was potentially a problem, and I brought
that to the attention of Colonel Warren.
Senator Graham. Thank you.
Chairman Levin. Mr. Mora, you've heard that what happened
at GTMO did not constitute abuse of detainees. Do you agree
with that?
Mr. Mora. Sir, I think abuse occurred, and potentially even
torture of some detainees.
Chairman Levin. In terms of what was authorized by the
Secretary, do you believe that that constituted abuse? In other
words, what he has said was okay, those category 2 and some of
the category 3 techniques that he approved on December 2, in
your judgment were those abuses permissible under Geneva or
under other law?
Mr. Mora. Senator, it depends upon how those techniques
would be applied.
Chairman Levin. How about nakedness, nudity? Would that be
permitted?
Mr. Mora. I think it would not be permitted.
Chairman Levin. How about use of dogs to induce stress?
Mr. Mora. It would not be permitted under Geneva.
Chairman Levin. All right.
Now, Admiral Dalton, I think you said that part of the
reason that you understood to--that was the reason why you were
told to stop your legal review was because Mr. Haynes did not
want the Services' critical comments disseminated. Is that
correct?
Admiral Dalton. Senator, I don't recall if those were my
exact words.
Chairman Levin. Was that one of the reasons?
Admiral Dalton. I believe that--I understood that Mr.
Haynes did not want broadbased discussions of this topic and of
these issues, and dissemination of various memos and memoranda
and that sort of thing.
Chairman Levin. All right. Now, did you see the memorandum
from the various Services objecting to these techniques? Did
you read those memoranda?
Admiral Dalton. Yes, Senator.
Chairman Levin. Those memoranda came before the decision of
the SECDEF on December 2, is that correct?
Admiral Dalton. That's correct.
Chairman Levin. I think it's very important--and this is
really what is one of the things that is new here this
morning--is that the protests, the objections of the military,
the JAG officers in the Services, came both before and after
the December 2, 2002, memorandum. Is that correct? In other
words, when that task force was appointed, later on there were
some objections. Mr. Mora was involved in those. But, prior to
December 2, prior to the SECDEF signing that category 2 and
some category 3 techniques were going to be authorized, the
military JAG officers and the military lawyers objected
strongly to the recommendation that came from GTMO. Is that
correct?
Admiral Dalton. Senator, the memos were not all written by
JAG officers, they came from the staff planners, generally with
input from some of the JAG officers----
Chairman Levin. Fine. It came from the Services.
Admiral Dalton. From the Services, yes, Senator. While they
raised serious concerns about the use of, particularly, the
category 3 techniques, they also identified the need for
valuable intelligence and suggested that there should be
further legal and policy review.
Chairman Levin. Of course. That legal and policy review,
you were undertaking until you were stopped. Is that correct?
Admiral Dalton. Yes, sir.
Chairman Levin. So, that didn't occur, the way they
recommended.
Admiral Dalton. The broadbased legal and policy review,
such as the one that took place later, January to April 2003,
did not occur.
Chairman Levin. That's what you were told you were supposed
to do, until you were stopped.
Admiral Dalton. Senator, that's what I took upon myself to
do.
Chairman Levin. Weren't you asked to give a legal analysis
by the Chairman of the Joint Chiefs?
Admiral Dalton. Senator, that was a part of my job. I
didn't have to be asked; I understood that there was a
requirement for a legal and policy review, and I initiated
such.
Chairman Levin. All right. Now, let's take a look at some
of those objections from the Army.
Army interposes significant policy and practical concerns
regarding most of category 2--not just category 3--category 2
and all of category 3 techniques proposed. The International
Operational Law Division of the Army, the chief, said that the
stress positions, deprivation of light and auditory stimuli,
and use of phobias to induce stress ``crosses the line of
humane treatment and will likely be considered maltreatment
under the UCMJ, and may violate the Torture Statute.''
(Appendix A)
Did that trouble you when you read that? Were you troubled
when you read that?
Admiral Dalton. Yes, Senator, I recognized that there were
concerns, absolutely.
Chairman Levin. I'm asking you whether you were troubled.
Is the answer yes?
Admiral Dalton. I'm not sure----
Chairman Levin. Were you troubled that there was a request
to authorize the treatment of detainees, which, in the judgment
of lawyers and the judgment of the military, said, their
judgment, that case of, now, the Chief of the Army's
International Operational Law Division--stress positions,
deprivation of light, use of phobias to induce stress crosses
the line of humane treatment, would likely be considered
maltreatment under the UCMJ--were you troubled that you were
being requested that the SECDEF was being requested to approve
something which, in the judgment of that Chief of the Army's
International Operational Division, would do that? Was that
troubling to you? Did it cause you concern?
Admiral Dalton. Senator, those comments were made by the
Army--in this case, the International Law Division--without a
complete analysis being done. It was the initial response from
the Service that occurred--that came to the Joint Staff within
2 to 4 days after the initial tasker went to them.
Chairman Levin. Right.
Admiral Dalton. It certainly was of concern. My own office
had concerns. I had concerns when we saw the request come in.
However, I felt that we owed it to the combatant commander to
do a full and complete review, and not to simply turn around
and deny the request.
Chairman Levin. Of course.
Admiral Dalton. The initial responses from the Services
indicated that there were concerns, and that's what I took them
for, as concerns.
Chairman Levin. You were stopped right in the middle of
that review, is that correct?
Admiral Dalton. I was stopped from conducting----
Chairman Levin. The review you were conducting--you were
stopped in the middle of the review you were conducting.
Admiral Dalton. --of coordinating with the Services and
engaging other agencies to come in, that's----
Chairman Levin. That's the review you were conducting.
Admiral Dalton. Yes, sir.
Chairman Levin. You were stopped in the middle. Or was it
the beginning, or was it two-thirds through it? You were
stopped during that review from finishing it, isn't that
correct?
Admiral Dalton. Yes, sir.
Chairman Levin. Why is that so hard, to say yes, if you
were?
Admiral Dalton. Because I want to be very clear that what I
was stopped from doing was engaging in a broad and open
discussion with all of the Services. That does not mean that I
completely divorced myself from the process. I continued to
work with Mr. Haynes and his office. My staff continued to work
with Mr. Haynes and his office.
Chairman Levin. You were stopped from doing what you
thought was appropriate, what you should be doing. How's that?
Admiral Dalton. I was stopped from conducting the
broadbased review that I had intended to conduct, Senator.
Chairman Levin. Which you thought was an appropriate
review.
Admiral Dalton. Yes, sir.
Chairman Levin. Okay.
Now, in terms of the dog that was there, I think it was
you, Admiral, that said the purpose of the dog--what was the
purpose of the request for the use of a dog? I think it was
you, Admiral, who said it wasn't to scare, it was something
else. Or was that you, Colonel Beaver?
Colonel Beaver. From the perspective at GTMO, it was
explained to me that the purpose of the dog, it could be used
as perimeter security, which would be fine, and that if that
unsettled the detainee, then it would work a dual purpose,
because part of interrogation is to keep you unsettled, when
you play the mental chess game. So, when I asked about the dog,
because I am a former military police officer before I was an
attorney, I know that you don't take dogs into a detention cell
or any other kind of cell or whatever. I was assured that that
would not happen. I found out, after I left GTMO, during the
Schmidt-Furlow investigation, that it had happened on one
occasion. I was unaware of that at the time.
Chairman Levin. Colonel, was the purpose of that dog to
induce stress on the part of detainees?
Colonel Beaver. If the detainee was actually afraid of a
dog--by patrolling the perimeter, if that kept the detainee off
balance or unsettled, then that was the purpose of it. I can't
say with certainty that he was afraid of a dog.
Chairman Levin. Was the purpose of the dog being brought
there to induce stress?
Colonel Beaver. I would say----
Chairman Levin. It's a very direct question.
Colonel Beaver. --my understanding--yes, I would say, from
my understanding, yes.
Chairman Levin. How about the words of the request, ``Using
detainees' individual phobias, such as fear of dogs, to induce
stress.'' That was the request that you approved.
Colonel Beaver. Right.
Chairman Levin. So, it wasn't ``if'' the----
Colonel Beaver. Yes, sir.
Chairman Levin. --detainee did something, or if the
perimeter walk did something. That was the purpose stated in
the request that you approved.
Colonel Beaver. I'm not disagreeing, sir.
Chairman Levin. Sounded like you were.
Colonel Beaver. Oh. Sorry. I'm not disagreeing.
Chairman Levin. Last question this round.
Admiral Dalton, was it clear to you that Mr. Haynes was
aware of the fact that the Services had real problems with this
request before he recommended to the SECDEF that that be
signed?
Admiral Dalton. Senator, it's my recollection that my staff
briefed his staff on the issues that were brought to--in the
memos from the Services, and that he was aware of those
concerns. Now, again, those concerns were addressed very early
on in the process without the benefit of knowing what the
safeguards would be, what the oversight would be, and so, I
cannot say what the Services' opinions would have been, had
they had the same knowledge that Mr. Haynes and the rest of us
had, after the process had gone through.
Chairman Levin. Now, that wasn't my question, was it,
``what their opinions would have been if''? My question was,
``was Mr. Haynes aware of the opinions of the Services at that
time?'' That's my question.
Admiral Dalton. Senator, I believe that he was aware that
the Services had concerns, yes, sir.
Chairman Levin. Was aware of those letters?
Did you brief his staff on those letters?
Admiral Dalton. My staff briefed his staff.
Chairman Levin. On those letters.
Admiral Dalton. Yes, sir.
Chairman Levin. Thank you.
Senator McCaskill.
Senator McCaskill. Before you wrote your legal opinion
stating that all of these techniques--the techniques that we've
referenced--all of 1, all of 2, and some of 3--were legal under
the Federal law, you attended a meeting that's been discussed
here, where there was a strategy meeting on counterresistance,
Lieutenant Colonel Beaver, and there were a number of people at
that meeting, including the CIA lawyer and the chief of
interrogation control, Dave Becker. Do you remember that
meeting?
Colonel Beaver. These meetings were mine. I started them
in, I think it was late August, when I became aware that the
military intelligence personnel wanted--were considering
requesting additional techniques, so I thought it best if I
held the meetings, brainstorming sessions, for lack of a better
way to describe it, and invited everyone, including the law
enforcement agencies, that there would be a more open
discussion, as opposed to just the military intelligence
people. So, that was a regularly scheduled meeting that Mr.
Fredman, who just happened to come down to the island that day,
was there for. So, it wasn't held for him, it was a meeting
that I had--I scheduled those meetings and invited everyone.
Senator McCaskill. Okay. So, the CIA lawyer was just
invited in for that meeting that was already planned.
Colonel Beaver. Yes.
Senator McCaskill. Okay.
Colonel Beaver. That's how I recall it.
Senator McCaskill. Okay. I want to go through some of the
notes about this meeting, and I know that you didn't write
these notes. I just need to know whether you think that this
recollection of what was said is flat wrong and just absolutely
not true. It's important to know whether you deny that these
things were said in front of you or that you said these things.
Colonel Beaver. Okay.
Senator McCaskill. The first thing is attributed to you,
``We need to curb the harsher operations when the Red Cross is
around. It's better not to expose them to any controversial
techniques. We must have support of the DOD.'' (Appendix A)
Colonel Beaver. Mr. Pryor, I think when you were absent,
asked a similar question, and what I can say is, I do not
recall, of course, 6 years later, anything that I actually said
in that meeting. What I do--because I, as a liaison to the
ICRC, and I have great respect for what they do--what I believe
that I think I would have said is that when you are conducting
an interrogation, if the ICRC is on the island and they want to
see a particular detainee, you can't disrupt the interrogation
for that purpose. So that automatically, if you want to say,
can cause some controversy. So, I----
Senator McCaskill. That's not what this says. This says you
need to curb----
Colonel Beaver. But, I didn't write it. All I can say is,
ma'am----
Senator McCaskill. Okay.
Colonel Beaver. --I don't know what actually happened or
what was actually said. I'm just saying I don't think I would
have said something in that manner, because I worked with the
ICRC very closely, and we had an excellent relationship, and I
have great respect for what they do. But, they came in 6-week
cycles. They might be there for 6 weeks and then gone for 6
weeks. So, I don't know, all I can guess is, I might have been
referring to--when they're not there, you would be doing your
more aggressive interrogation, because then there wouldn't be
any problems, and then, when they come back, if they wanted to
see that particular detainee, they were allowed to see the
detainee. They had access to all the detainees.
Senator McCaskill. Why would there be a problem of them
ever seeing the detainee?
Colonel Beaver. When you're conducting an interrogation,
you can't disrupt it for just the purpose of an ICRC visit.
Senator McCaskill. Whether it's harsh or not?
Colonel Beaver. Correct.
Senator McCaskill. Then why would you delineate ``harsh''
in your statement just now? Why would it make a difference
whether it was harsh?
Colonel Beaver. I'm just using it in context of this
conversation. But, yes, there were many times when detainees
were undergoing--like, they had just arrived on the island, and
the ICRC was told they would not have access to them for 2
weeks while we processed them.
Senator McCaskill. All right.
Colonel Beaver. So, there were many engagements like that,
where we explained why they could or could not see a detainee.
Senator McCaskill. The notes--I want to make sure the
record's clear who wrote these notes. These notes were written
by the CITF of DOD.
Colonel Beaver. That's correct, ma'am.
Senator McCaskill. Okay.
Colonel Beaver. They're the executive agent of the
Secretary of the Army.
Senator McCaskill. Okay. So, these are criminal
investigators that are used to contemporaneously taking notes
and making sure that they're reliable, because they must rely
on them in a criminal investigation.
Colonel Beaver. Again, all I'm saying is, I didn't write
them, and, 6 years later, I cannot recall what I said in a
meeting.
Senator McCaskill. Part of their professional training, in
fact, is the ability to take notes contemporaneously with an
event so they can recall, later, for purposes of the
investigation, what happened. Is that correct?
Colonel Beaver. I don't dispute that.
Senator McCaskill. Okay. Now, let me ask you about
something else that was said there.
Mr. Fredman, the CIA attorney, said, ``The DOJ has provided
much guidance on this issue. The CIA is not held to the same
rules as the military. In the past, when the ICRC has made a
big deal about certain detainees, the DOD has, `moved them away
from the attention of the ICRC.' Upon questioning from the ICRC
about their whereabouts, the DOD's response has repeatedly been
that the detainees merited no status under the Geneva
Conventions. The CIA has employed aggressive techniques on less
than a handful of suspects since September 11.'' (Appendix A)
Do you recall that--those words being said by the lawyer
from the CIA, that there was a habit of moving these detainees
if the ICRC started asking questions?
Colonel Beaver. Again, I would say, I don't recall, with
any kind of specificity, what was said at that meeting. I know
how we handled these issues. In fact, Qahtani, which the law
enforcement folks had custody of him at the brig before JTF-170
did, and the FBI and the CITF agents did not allow the ICRC to
speak to him. He was seen through the--the ICRC was allowed, if
they wished, to go in and see him in the brig, that he was
alive and well. That was in the July-August timeframe. So, this
was one of the detainees, this particular gentleman, ISN-63,
that had been of interest to the law enforcement community, as
well as the intelligence community, and there had been many
discussions. So, again, I can't attribute anything to what Mr.
Fredman said about the CIA, but I knew that DOD had different
rules regarding the ICRC and how we operated on a DOD
installation.
Senator McCaskill. All right. Going further in the notes
that were taken by law enforcement contemporaneous with this
meeting, the chief interrogation control person, Mr. Becker,
``Videotapes are subject to too much scrutiny in court. We
don't want the law enforcement authority (LEA) people in
aggressive sessions anyway.''
Lieutenant Colonel Beaver, LEA's choice not to participate
in these types of interrogations is more ethical and moral, as
opposed to legal.
Then, this line from Mr. Fredman, ``The videotaping of even
totally legal techniques will look ugly.''
Now, that phrase is particularly troubling to me, because
inherent is that phrase that videotaping even the totally legal
ones would look bad; for God's sakes, let's don't tape the ones
that are illegal.
Colonel Beaver. For people who have never participated in a
police interrogation, I would just say that it would make
anyone uncomfortable. So without a context, without
understanding the situation, again, I'm not trying to be in Mr.
Fredman's mind. I'm saying I understand, probably, what he is
saying is, is that even when you have a legal police custodial
interrogation, that people can be uncomfortable. I would just
say, videotaping is not necessary unless your military
intelligence people need it, for whatever purpose, because we
had closed-circuit TVs where the people could watch the
interrogations 24/7, and so, it wasn't necessary to videotape
it unless there was an intelligence purpose. So, my only point
is that even when again, if you've never witnessed a police
interrogation for hours and hours when you're interviewing a
suspect, it can be very uncomfortable. It's not pleasant.
Senator McCaskill. I will tell you, Lieutenant Colonel
Beaver, I have witnessed----
Colonel Beaver. I'm not saying you personally.
Colonel Friend. I must object to this line of questioning,
ma'am, with all due respect, Senator.
Chairman Levin. Excuse me. Excuse me.
Colonel Friend. Mr. Chairman----
Chairman Levin. Excuse me.
Colonel Friend. Yes, sir.
Chairman Levin. Can you, first of all, identify yourself?
Colonel Friend. Yes, Mr. Chairman. I'm Lieutenant Colonel
James Friend. I'm the defense counsel for Lieutenant Colonel
Beaver.
My objection, sir, if I may.
Chairman Levin. Yes, I'll tell you what, can you consult
with your client, there, and then either you or her speak into
the microphone--one or the other? You need to speak into the
microphone.
Colonel Friend. I would like to object to my client being
asked about what someone else said, and the inference is it's
attributed to her. I think that's an unfair----
Chairman Levin. All right. Let me just--your objection is
noted.
Okay. Senator?
Senator McCaskill. Yes, I was asking you, Lieutenant
Colonel Beaver, if these things were said in front of you; in
your capacity as the staff judge advocate, if this--if you
recall--these were notes taken by CITF within DOD,
contemporaneous with this meeting, attributing some statements
to you and some statements to Mr. Fredman. I was asking, do you
recall those statements being made. I was not saying--and I
think I was very clear--that Mr. Fredman said this, not
Lieutenant Colonel Beaver. Do you recall those statements being
made in front of you in your capacity as the staff judge
advocate at GTMO?
Colonel Beaver. Ma'am, the meeting was for non-attribution
purposes, so that people could speak their minds and that
opinions not be held against someone in an adverse way. It was
a brainstorming session. People spoke up and had different
opinions. I don't recall what was said 6 years ago. But, the
purpose of the session was to allow people to speak freely and
address their concerns, whether it be the law enforcement
community, the Intelligence Community, the lawyers, the
military police, and so that we would get a genuine discussion
of the issues. So, if you restrict what can be said, then
you're going to have people doing things, perhaps, in darkness,
and you won't know about it. So, I wanted people to have a good
collegial discussion. As I recall, we had a good collegial
discussion. But, I cannot recall precisely what was said by a
particular person or whether law enforcement--and the law
enforcement people were particularly hostile towards me, and
were very unhappy with me that I was even having these
conversations. But, I still thought it was best to do it in the
light of day and include everyone than to just limit it to
military intelligence personnel. But, I'm sorry, I really
cannot recall with any certainty what was said 6 years ago.
Senator McCaskill. I think it's important that the law
enforcement personnel were included in these meetings, and I'm
sure they have witnessed, as I have, many, many, many
interrogations. I'm sure that's why they thought it was
important to take notes.
Let me close my questioning by reading into the record, Mr.
Chairman, what one of those law enforcement task force--the
Deputy Commander of the CITF said in an e-mail within a month
of this meeting, in looking at the notes from the meeting:
``This looks like the kind of stuff congressional hearings are
made.'' Quotes from Lieutenant Colonel Beaver regarding things
that are not being reported give the appearance of impropriety.
Other comments, like `It's basically subject to perception. If
the detainee dies, you're doing it wrong,' and `any of the
techniques that lie in the harshest end of spectrum must be
performed by a highly trained individual. Medical personnel
should be present to treat any possible accidents,' seem to
stretch beyond the bounds of legal propriety. Talk of `wet-
towel treatment,' which results in the lymphatic reacting as if
you are suffocating, would, in my opinion, shock the conscience
of any legal body looking at using the results of the
interrogations or possibly even in the interrogators. Someone
needs to be considering how history will look back at this.''
(Appendix A)
Colonel Beaver. Mr. Chairman, I just--please, one comment--
I invited the CITF, law enforcement, if they had concerns, to
put them in writing and put them through to General Miller so
that they could be considered. They did not. I also said that
if they had any concerns about violations of the law, that was
never--not a single FBI agent or CITF person ever, ever, ever,
except on one occasion, where they said Dave Becker put tape on
a detainee's mouth, ever came to me and said, ``There's a
violation of the law.'' They had policy arguments and ethical
arguments, but they never came to me and said, ``Right now
there is something going on. I think it's a violation of the
law.'' This has all been years later, through e-mails and
hearsay. So, if they felt that way at the time, they could have
given me the same courtesy that I gave them.
Senator McCaskill. I couldn't agree with you more.
Colonel Beaver. It did not happen. They went to Mr. Mora.
That's fine. I didn't know about that. But, at the time, I
would have looked at anything seriously, and they knew that.
Senator McCaskill. I couldn't agree with you more, and
that's why I called Mr. Mora a hero.
Thank you, Mr. Chairman.
Chairman Levin. Thank you.
If you could look at tab 11, Colonel Beaver, I think you'll
find there a letter from the CITF giving an assessment of the
JTF-170 counterresistance strategies.
Colonel Beaver. It was never shared with me, Chairman.
Chairman Levin. But, they shared it in writing.
Colonel Beaver. Not with----
Chairman Levin. You didn't mean to imply that they never
put in writing their objections, did you?
Colonel Beaver. In terms of meetings I had and discussions
I had, they did not provide me anything in writing with
specific interrogation techniques of that nature. I understood
that they were discussing it with the Army Office of the
General Counsel, and also, I didn't know Mr. Mora, but I knew
higher headquarters, and I was told by an attorney at the
Office of the Army General Counsel that their objections were
policy-based, and not legal-based.
But, I never----
Chairman Levin. Let me read you this from that, if you
could take a look at that exhibit. (Appendix A)
Colonel Beaver. Sure.
Chairman Levin. ``CITF personnel who are aware of the use
or abuse of certain techniques may be exposed to liability
under the UCMJ.'' Sounds legal to me. This is what they
provided to the SECDEF. This is what they provided to Admiral
Dalton. Admiral Dalton says she saw this. I mean, this is--this
is the----
Colonel Beaver. I never saw it.
Chairman Levin. I know you didn't see it. I'm not asking
you if you saw it.
Colonel Beaver. Right.
Chairman Levin. I'm saying that you didn't mean to imply,
in your testimony, that they never set out their objections to
what you were recommending, in writing. It's just that you say
you never saw them. Is that correct?
Colonel Beaver. We lived and worked together there, and I'm
just saying they didn't afford me the same opportunity that I
afforded them, which I gave them----
Chairman Levin. I'm just asking you a very direct question.
You're not suggesting that they didn't put their strong----
Colonel Beaver. I don't--sorry, sir.
No, I'm sorry.
Chairman Levin. You didn't mean to suggest that, did you?
You just didn't--weren't aware of it.
Colonel Beaver. Until today, this is the first time I've
seen this memo.
Chairman Levin. That's fine.
Colonel Beaver. Thank you.
Chairman Levin. It's just that you were not brought into
that loop. You had already sent your opinion on. The Joint
Chiefs had asked for an opinion in Washington, ``What do they
think about your opinion?'' They then asked the Services, what
did they think? This is a response from one of the Services as
to what----
Colonel Beaver. Okay.
Chairman Levin. --they thought of your opinion.
Colonel Beaver. This is after the discussions.
Chairman Levin. Whether they should----
Colonel Beaver. --the discussions.
Chairman Levin. It's after what?
Colonel Beaver. This--no, sorry. I'm sorry, sir.
Chairman Levin. It's after what?
Colonel Beaver. I thought you were done. No, this is after
discussions that we had on the island.
Chairman Levin. It's dated November 4, 2002, which is a
month, to the day prior to the SECDEF signing his memo. Is that
correct?
Colonel Beaver. Yes.
Chairman Levin. All right.
Now, Colonel Beaver, after the SECDEF approved the
techniques, on December 2, did you work with the senior staff
at GTMO to develop the SOP at tab 16? If you could take a look
at tab 16. (Appendix A)
Colonel Beaver. No, I did not, sir. That was done by some
of the folks at the interrogation cell. But, I had nothing to
do with that.
Chairman Levin. Were you familiar with this document?
Colonel Beaver. I recall seeing it when the staff showed it
to me. I might have recalled seeing it at the time at GTMO, but
I know that some of the personnel at GTMO, the intelligence
side, in preparation, should the Secretary approve something,
they were preparing an SOP so that they wouldn't be behind the
timeline. But, that was not at the direction of General Miller
or certainly myself.
Chairman Levin. Did you have communications with them about
the SOPs to implement the Secretary's December 2, 2002,
decision?
Colonel Beaver. Right, I certainly told them that anything
that they did, they needed to have a military doctrine, a SOP,
so that it was clear to everybody concerned what the right and
left limits were, and what the chain of command was, who to
report things to. So, yes, I'm aware of that.
Chairman Levin. All right. You never saw any of the drafts,
though.
Colonel Beaver. I can't say with certainty I saw this draft
or not at the time. I've certainly seen it since.
Chairman Levin. Okay.
Colonel Beaver. I know who Ted Moss is, but I----
Chairman Levin. Is it possible you saw this draft at the
time?
Colonel Beaver. I could have, sir.
Chairman Levin. All right. If you could read on page 80--I
think it's page 2----
Colonel Beaver. Okay.
Chairman Levin. --where it says, ``The basis for this
document is the standard operating''--it's about halfway down.
Do you see that? ``The basis for this document is the SOP used
at the U.S. Navy SERE School in Brunswick, Maine, as defined by
reference (a).'' Do you see that reference?
Colonel Beaver. On page 2?
Chairman Levin. The heading of the page is ``JTF''--well,
that's the first page.
Colonel Beaver. Oh, oh, I'm sorry.
Chairman Levin. No, I said page 2, so I misled you.
Colonel Beaver. Right, I see where you're referring to.
Chairman Levin. See where it says ``JTF GTMO SERE''----
Colonel Beaver. Right.
Chairman Levin. ``SERE standard''----
Colonel Beaver. Right.
Chairman Levin. --``operating procedure''?
Colonel Beaver. I don't recall.
Chairman Levin. Then you see ``JTF GTMO SERE
interrogation''----
Colonel Beaver. Yes.
Chairman Levin. SOP? Then you see ``Guidelines for
employing SERE,'' crossed out----
Colonel Beaver. Right.
Chairman Levin. --``management techniques during detainee
interrogations.'' It's that page I'm asking you to look at.
Colonel Beaver. Right.
Chairman Levin. Then, if you would look at the ``purpose,''
would you follow me? ``This SOP document promulgates procedures
to be followed by JTF GTMO personnel engaged in interrogation
operations on detained persons.''
Colonel Beaver. Right.
Chairman Levin. ``The premise behind this is that the
interrogation tactics used at U.S. military SERE schools are
appropriate for use in real-world interrogations. These tactics
and techniques are used at SERE school to break SERE detainees.
The same tactics and techniques can be used to break real
detainees during interrogation operations. The basis for this
document is the SOP used at the U.S. Navy SERE School in
Brunswick, ME, and is defined by reference (a).'' Did you
follow all that?
Colonel Beaver. Yes, sir.
Chairman Levin. Is it possible you saw this when you were
at GTMO?
Colonel Beaver. I can't say. I know it certainly never left
the intelligence sector, or--what were they called then? I
think they were--it was the ICE.
Chairman Levin. Did you----
Colonel Beaver. It's nothing that came to the attention of
General Miller for approval. It was a beginning draft, as I
recall, that Ted Moss took, on his own initiative, to start
drafting. But, I don't think it ever received any serious
consideration. But, that's my just basic recollection.
Chairman Levin. Did you participate in drafting at all?
Colonel Beaver. No, sir, not this.
Chairman Levin. But, did you participate in any of the SOP
drafts to implement that order of the SECDEF?
Colonel Beaver. I gave them a--as part of the SOP, the
legal brief, or the legal piece of it, the--I don't know what
to call it. But, they had a list of things that were in there
from my legal briefing in their SOP.
Chairman Levin. All right, and you gave your approval of
that.
Colonel Beaver. It's not this SOP.
Chairman Levin. In other SOPs, did you give your----
Colonel Beaver. It was a different SOP, as I recall, that
actually listed the actual procedures that were approved, and
all of the nuts and bolts that go into preparing an
interrogation plan, who has to approve it, at what level.
Chairman Levin. Right.
Colonel Beaver. --and all the way up to General Miller. So
that's the SOP, I think, that I recall.
Chairman Levin. Were the SERE techniques in that particular
document that you saw?
Colonel Beaver. No.
Chairman Levin. Were they based on the SERE techniques?
Colonel Beaver. It was based on the SECDEF's memo.
Chairman Levin. Which incorporated category 2--certain----
Colonel Beaver. But----
Chairman Levin. --category 3--is that right?
Colonel Beaver. It wasn't----
Chairman Levin. Were they specified in the SOP?
Colonel Beaver. Right, but it wasn't specified as SERE; it
was specified as, ``This is what's authorized.'' The SECDEF's
memo.
Chairman Levin. All right.
Colonel Beaver. Then, here's who has to approve what, as I
recall.
Chairman Levin. Gotcha.
Finally, Admiral Dalton, have you ever, before this event,
been told to stop analyzing a request or issue that came up for
your review?
Admiral Dalton. Senator, there was a previous occasion
where I was directed that I could not attend interagency
meetings and participate in an interagency discussion of the
issues. But, again, like this time, I was----
Chairman Levin. Let me just ask my question again. Had you
ever before been told to stop analyzing a request that came up
for your review?
Admiral Dalton. Senator, no.
Chairman Levin. Do you know whether the Joint Staff has
ever been asked to stop analyzing a request that came up for
their review?
Admiral Dalton. I don't know, sir.
Chairman Levin. You don't know that--or, you don't know
whether----
Admiral Dalton. I don't know whether that has occurred.
Chairman Levin. All right.
Now--do you have any more questions of this panel? All
right. There's a vote on. The panel is excused. Thank you, all.
No, I want to ask you, Mr. Mora--I'm sorry. There are two
questions I must ask you.
First of all, you heard my description in my opening
statement of your activities which came in January, I believe,
after the SECDEF entered his order, and your efforts to get
that rescinded were recounted in my opening statement.
Mr. Mora. Yes, Senator, I heard that.
Chairman Levin. Was that accurate?
Mr. Mora. That's accurate.
Chairman Levin. Thank you.
Now, when the Secretary approved, on December 2, the
recommendation for aggressive interrogation techniques for
GTMO, he was handed a handwritten note which said, ``Why is
standing limited to 4 hours? I stand for 8 to 10 hours a day.''
What impact might that note have on military personnel who read
it?
Mr. Mora. Senator, when I first saw that note, I was
shocked that any such note would appear on this kind of
document, and I was reacting as a litigator to seeing a
client's comment of this nature on a document. I felt, at the
time, that, even though it may have been intended jocularly,
and Secretary Rumsfeld has that style, in this kind of document
such a handwritten notation might be interpreted as a wink and
a nod to go beyond the limits of the document.
Chairman Levin. You said, in your opening statement, that,
``Allied nations have hesitated to participate in combat
operations, given the possibility that individuals captured
during the operation could be abused by U.S. or other forces.''
Now, if our allies aren't willing to support combat operations,
that would put more U.S. forces in harm's way. Would that be
true?
Mr. Mora. That's correct.
Chairman Levin. Is that something where you have specific
examples, or was that your fear?
Mr. Mora. Senator, I have one specific example that was
relayed to me, but I would prefer to discuss that in a closed
session rather than an open hearing.
Chairman Levin. You had an opinion of the so-called ``Yoo
memo,'' which had been commissioned by Mr. Haynes. How would
you say that--you had meetings with Mr. Yoo, I believe, about
that memo. How would you describe his defense of his memo?
Mr. Mora. I only had one meeting with Mr. Yoo, Senator, and
I thought the memo was a travesty of the applicable law, and a
very dangerous memo, because it led the DOD into what we see
here and what the working group ultimately would issue.
Chairman Levin. You were not told about the working group's
final product, you were left out, according to my opening
statement, which you said was accurate. How did the Yoo memo
influence that final working group report?
Mr. Mora. The Yoo memo essentially created the contours and
content for the working group report. So, it was dispositive of
all the legal issues that were addressed within the Yoo memo.
Chairman Levin. Senator Graham.
Senator Graham. Looking forward, Mr. Mora, I think we now
understand why we needed to bring some certainty to this whole
area, because, like you say, it's very hard to interpret this,
these policies and procedures. They do migrate, they do get
people confused. People get overzealous sometimes, they don't
know what the boundaries are. Do you think it's a good thing
that we passed the DTA, the McCain language, outlawing cruel,
inhumane, and degrading treatment? That was necessary, given
the history of all this?
Mr. Mora. Absolutely necessary, Senator.
Senator Graham. Okay, thank you.
Chairman Levin. Thank you all very much. You're all
excused.
We will be back after this vote. Let's say--is it 2:40 now?
We'll begin at 3 o'clock. The next panel will be at 3 o'clock.
[Whereupon, at 2:40 p.m., the committee adjourned.]
TO CONTINUE TO RECEIVE TESTIMONY ON THE ORIGINS OF AGGRESSIVE
INTERROGATION TECHNIQUES: PART I OF THE COMMITTEE'S INQUIRY INTO THE
TREATMENT OF DETAINEES IN U.S. CUSTODY (P.M. SESSION)
----------
TUESDAY, JUNE 17, 2008
U.S. Senate,
Committee on Armed Services,
Washington, DC.
The committee met, pursuant to notice, at 3:09 p.m. in room
SD-106, Dirksen Senate Office Building, Senator Carl Levin
(chairman) presiding.
Committee members present: Senators Levin, Lieberman, Reed,
Akaka, Bill Nelson, E. Benjamin Nelson, Pryor, Webb, McCaskill,
Warner, Inhofe, Sessions, Collins, Chambliss, Graham, Dole,
Cornyn, Thune, and Martinez.
Committee staff members present: Richard D. DeBobes, staff
director; and Leah C. Brewer, nominations and hearings clerk.
Majority staff members present: Joseph M. Bryan,
professional staff member; Ilona R. Cohen, counsel; Mark R.
Jacobson, professional staff member; Gerald J. Leeling,
counsel; Peter K. Levine, general counsel; William G.P.
Monahan, counsel; and Michael J. Noblet, professional staff
member.
Minority staff members present: Michael V. Kostiw,
Republican staff director; William M. Caniano, professional
staff member; David G. Collins, research assistant; David M.
Morriss, minority counsel; and Dana W. White, professional
staff member.
Staff assistants present: Kevin A. Cronin, Jessica L.
Kingston, Ali Z. Pasha, Benjamin L. Rubin, Brian F. Sebold, and
Breon N. Wells.
Committee members' assistants present: Jay Maroney,
assistant to Senator Kennedy; James Tuite, assistant to Senator
Byrd; Frederick M. Downey, assistant to Senator Lieberman;
Elizabeth King, assistant to Senator Reed; Bonni Berge and
Darcie Tokioka, assistants to Senator Akaka; Christopher Caple,
assistant to Senator Bill Nelson; Andrew R. Vanlandingham,
assistant to Senator Ben Nelson; Jon Davey, assistant to
Senator Bayh; M. Bradford Foley, assistant to Senator Pryor;
Gordon I. Peterson, assistant to Senator Webb; Peg Gustafson,
assistant to Senator McCaskill; Sandra Luff, assistant to
Senator Warner; Anthony J. Lazarski and Nathan Reese,
assistants to Senator Inhofe; Mark J. Winter, assistant to
Senator Collins; Clyde A. Taylor IV, assistant to Senator
Chambliss; Jennifer Olson, assistant to Senator Graham; Lindsey
Neas, assistant to Senator Dole; David Hanke, assistant to
Senator Cornyn; Jason Van Beek, assistant to Senator Thune; and
Erskine W. Wells III, assistant to Senator Wicker.
OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN
Chairman Levin. The committee will come back into session.
Our third and final panel is Jim Haynes, who is the former
general counsel of the Department of Defense (DOD).
We welcome you, Mr. Haynes. If you have an opening
statement, we'd be happy to hear from you now.
STATEMENT OF WILLIAM J. HAYNES II, FORMER GENERAL COUNSEL,
DEPARTMENT OF DEFENSE
Mr. Haynes. Thank you, Mr. Chairman.
I don't have a formal opening statement, except to observe
that this hearing today is part of a process that's been going
on for some time now and will continue for many years to come,
I'm sure. How our country deals with this unprecedented threat
is the subject of discussion among Members of Congress, the
executive and the judiciary, the media, and many politically
active citizens. This is as it should be.
Ultimately, however, the end of these discussions can only
come with history's larger judgment of how well our leaders in
the various branches of government performed in work--in the
work of protecting Americans after an attack, and, of course,
how well the country remains equipped to deal with this threat
in the future.
So, I just want to say, I think this hearing today can
serve a larger purpose and a most useful purpose. We all
rightly fear another assault on our country, one perhaps even
more horrific than the last. We know that America's enemies,
while thwarted, are unrelenting. Indeed, some of those who have
been released from Guantanamo (GTMO) have already shown their
recidivism, committing acts of terrorism that have left
innocent people maimed or killed.
So, along with members of this committee and many other
Americans, I look forward, in the years ahead, to watching our
Nation's leaders advance the cause of America's security and
freedom.
Finally, Mr. Chairman, I'd like to acknowledge my
appreciation of all the members of the previous two panels for
their service, their good faith, their hard work in trying to
deal with a very difficult issue.
I'm ready for your questions.
Chairman Levin. Thank you very much, Mr. Haynes.
In July 2002, your deputy general counsel, Mr. Shiffrin,
contacted the Joint Personnel Recovery Agency (JPRA), and asked
for information about survival, evasion, resistance, and escape
(SERE) techniques. Did you ask Mr. Shiffrin to obtain
information on SERE techniques?
Mr. Haynes. Mr. Chairman, the summer of 2002 was 6 years
ago, and my memory is not perfect. My memory is not perfect
even in more recent times, but 6 years ago is surely the case.
What I remember in the summer of 2002 is a government-wide
concern about the possibility of another terrorist attack as
the anniversary of September 11 approached. I also remember a
widespread belief that the people that the United States had
captured in the war on terror were not producing as much
information as we believed they had. Similarly, there was
widespread frustration that the existing doctrine was
inadequate and that the country's capabilities were inadequate
to the task. So, as the chief legal officer of DOD, I was
interested in that and concerned about it.
I remember inquiring generally about where the sources of
information and expertise in the government might be, as a
senior leader of DOD and a potential advisor on different
matters. Richard Shiffrin would have been the person I would
have asked for that kind of information.
Chairman Levin. Okay. Do you remember asking Mr. Shiffrin
to obtain information specifically on SERE techniques?
Mr. Haynes. I don't remember that, specifically. What I do
remember is what I've said, asking generally about that, and I
do also remember, sometime in the late summer--and this is a
recollection somewhat refreshed from a recent review of some
documents--that I did get some information from the JPRA.
Chairman Levin. But, you don't remember requesting it.
Mr. Haynes. I don't remember requesting, but I do remember
being interested in it, and I would have requested it through
Richard.
Chairman Levin. If you requested it.
Mr. Haynes. Yes, sir.
Chairman Levin. But, again, just to be very precise, you
don't remember requesting information on SERE techniques.
Mr. Haynes. I don't remember that, specifically, sir.
Chairman Levin. All right. Now, you met regularly with a
small group of senior administration lawyers, including Mr.
Gonzales, the President's counsel, Mr. Addington, the Vice
President's counsel, Mr. Rizzo, the acting CIA general counsel,
and the Department of Justice (DOJ) Office of Legal Counsel
(OLC) attorneys, Mr. Yoo and Patrick Philbin, to discuss legal
matters relating to the war. Did this request to Mr. Shiffrin
for the information that you've described you did request, did
that come from that group? Was it a result of discussions with
that group?
Mr. Haynes. Senator, again, 6 years ago is a long time. I
had probably 10 meetings a day during the course of my time as
general counsel. I met with many people, many groups. I met
with subsets of that group, I met with larger sets of lawyers.
There were interagency meetings of all types throughout my
tenure as general counsel. So, to key into one particular
meeting with a particular group of people with a specific
request is very difficult for me to do.
Chairman Levin. I wasn't asking you for that. Do you
remember whether your request to Mr. Shiffrin was the result of
discussions with that group?
Mr. Haynes. No, sir, I don't.
Chairman Levin. Now, tab 2 (see Annex A), if you'll take a
look at it, is a July 26, 2002, memo from Lieutenant Colonel
Baumgartner to your office, and it relates to a JPRA memorandum
dated July 25 and about SERE training programs. Do you remember
seeing----
Mr. Haynes. Sir, I'm sorry to interrupt--this says
December--or, July 26.
Chairman Levin. All right. Did I miss--did I say July 25?
Mr. Haynes. I thought you did.
Chairman Levin. The reference was to a July 25 JPRA
memorandum. You see that? Where it says ``reference''?
Mr. Haynes. Oh, yes----
Chairman Levin. Third line down.
Mr. Haynes.--I do, yes.
Chairman Levin. Do you remember seeing this memo at the
time?
Mr. Haynes. No, sir, I don't remember it at the time, but
I've seen it before; and I've seen it a long time ago, not just
recently.
Chairman Levin. All right, but you don't remember seeing
that at the time it was sent.
Mr. Haynes. No, sir, I don't.
Chairman Levin. Is it possible you did see it then?
Mr. Haynes. It's possible I did see it. The addressee is
the Office of the Secretary of Defense General Counsel, which
is not my precise title, or was not my precise title, but if it
was so addressed, I would have seen it, probably.
Chairman Levin. Now, tab 3 (see Annex A) is an attachment
to the July 26 memo, if you could take a look at that. It's a
list of physical and psychological pressures used in SERE
training, including stress positions, walling, degradation,
sensory deprivation, exposure to bright flashing lights, sleep
disruption, and water boarding. Did you see this document at
the time?
Mr. Haynes. Was this an attachment to the other one, sir?
Chairman Levin. Yes.
Mr. Haynes. If I had seen the other one, if it was
attached, I would have seen it.
Chairman Levin. But, do you remember specifically whether
you saw this attachment at the time?
Mr. Haynes. I don't remember specifically when I saw this.
Chairman Levin. All right. Now, there's another attachment
to Lieutenant Colonel Baumgartner's July 26 memo.
Mr. Haynes. Is that number 4?
Chairman Levin. Tab 4 (see Annex A), on the long-term
effects of resistance training on SERE school students, and it
was written by Dr. Ogrisseg, who was a witness on our first
panel, as you heard, and it includes a psychological assessment
of the techniques used at the Air Force SERE School and one
technique used at the Navy SERE School--water boarding. Did you
ask Mr. Shiffrin to obtain information on the psychological
effects of SERE resistance training?
Mr. Haynes. I may have.
Chairman Levin. Did you see Dr. Ogrisseg's memo at the
time?
Mr. Haynes. We're now--this is an attachment to the other--
--
Chairman Levin. Yes.
Mr. Haynes.--one, you said? If I had seen the first one and
it was attached, I----
Chairman Levin. But, do you remember specifically whether
you saw this memo at the time, this attachment?
Mr. Haynes. I don't specifically remember when I saw this.
Chairman Levin. All right. Now, do you remember receiving
this--what would you have done with this information when you
got it? Do you remember doing something with this information?
Mr. Haynes. I don't remember doing something with this
information. What I remember, Senator--and I'm sorry about----
Chairman Levin. It's all right. If you don't remember,
that's okay.
Mr. Haynes. My recollection--what I recall was the
environment that I described earlier.
Chairman Levin. I understand.
Mr. Haynes. I've forgotten what prompted my interest, other
than the general concerns; there may have been some other
catalyst. I can't be more specific.
Chairman Levin. Did you ever discuss SERE techniques with
Messrs. Gonzales, Addington, Rizzo, Yoo, or any other senior
lawyers with whom you met regularly?
Mr. Haynes. I believe I did discuss SERE techniques with
other people in the administration.
Chairman Levin. Prior to the December 2 memo signed by the
Secretary of Defense (SECDEF)?
Mr. Haynes. Yes.
Chairman Levin. Would that have happened on more than one
occasion?
Mr. Haynes. I can't remember.
Chairman Levin. What was the gist of those conversations?
Mr. Haynes. I think that--first off, my memory is not
great, but if I were to discuss anything further, I think I
would have to talk about classified information.
Chairman Levin. But, would you remember it better if this
were a classified setting?
Mr. Haynes. I wouldn't be able to discuss it.
Chairman Levin. I understand that, but you say your
memory's not great, and then you say you want to talk in
classified setting.
Mr. Haynes. No, sir. I don't know what the transcript might
say, but what I'm trying to respond to is, did I ever discuss
SERE techniques with others in the administration? The answer
is yes. Maybe that's the answer to your question.
Chairman Levin. No, you answered that clearly. The other
one was, what was the gist of those conversations?
Mr. Haynes. I could not tell you the gist of those
conversations without going into classified information.
Chairman Levin. But, you do remember them.
Mr. Haynes. I don't remember them any more clearly than
what I've just said, that I have seen information of this
nature before. I don't know precisely when, and I cannot
discuss it further without getting into classified information.
Chairman Levin. You say you don't remember it any more
clearly than what you've said. Therefore, going into classified
session isn't going to give us any more information than what
you've said, which is, you had conversations, but your memory
is bad. That's all you've said.
Mr. Haynes. Correct.
Chairman Levin. That's all you remember.
Mr. Haynes. Correct.
Chairman Levin. I don't know what going into classified
session would add to it then.
Mr. Haynes. Okay.
Chairman Levin. Senator Graham?
Senator Graham. Thank you, Mr. Haynes. I appreciate 6 years
ago is a very long time. Try to put this in context of this
puzzle, so to speak, at least from my point of view. The goal
was to get better information from people at GTMO. That was the
desire of this whole project. We were afraid we were going to
be attacked again. We weren't getting the information we hoped
to obtain, so we were going to try to come up with a new
program to get better information. That was sort of the task at
hand?
Mr. Haynes. I think the goal was broader than--the goal was
not GTMO.
Senator Graham. Okay. The goal was to get better
information.
Mr. Haynes. The goal was to understand what capabilities
the country had to elicit information from terrorists who had
attacked, and might attack, the country.
Senator Graham. Now, I totally understand that. I'm not
saying that's a bad goal. I just want to know--there's a reason
for everything. The reason this project and all this talk about
interrogation techniques and what we can and can't do was a
result of trying to get better information from high-value
targets.
Mr. Haynes. That would be an objective of people who were
involved in interrogation, yes, sir.
Senator Graham. Okay. So, you and others were tasked with
the job of trying to come up with new programs, that were not
on the books at that time, that would allow you to get better
information. Is that not what started all this?
Mr. Haynes. No, sir, I wasn't tasked with such a project. I
was the senior lawyer in DOD, and one of the missions that our
department had was the detention and questioning of terrorists
captured in the war on terror.
Senator Graham. Right.
Mr. Haynes. As the senior lawyer, I had to be--or felt I
needed to be--aware of what my client was up to. I was also a
senior member of the administration involved in interagency
activities.
Senator Graham. Right. There's nothing wrong with doing
this. I'm not trying to say anybody did anything wrong. It
makes perfect sense that we're going to try--if we don't have
adequate information, then let's look for a way to get better
information. The Bybee memo--are you familiar with the Bybee
memo, the legal analysis about the Convention Against Torture
(CAT) and other statutes and treaties?
Mr. Haynes. I believe I am, yes, sir. I think that there
have been a lot of labels and names associated with----
Senator Graham. Yes.
Mr. Haynes.--a memo that I understand to be in August of--
--
Senator Graham. Were you aware that it was the opinion of
the DOJ OLC that unless there was major organ failure involved,
it would not be a violation of CAT?
Mr. Haynes. Yes, sir.
Senator Graham. Okay. So, there is a line of legal
reasoning that you're aware of that was pretty aggressive when
it came to existing laws, in terms of--I would argue that
something short of major organ failure not being torture is a
pretty aggressive point of view.
Now, were you aware of that before Secretary Rumsfeld
approved the interrogation techniques?
Mr. Haynes. I don't know when I became aware of that,
Senator.
Senator Graham. Okay, fair enough. Now, these
interrogation----
Mr. Haynes. I don't remember that.
Senator Graham. I understand. These interrogation
techniques that Secretary Rumsfeld initially signed off on, the
three categories--I think that there were 35, is that correct?
Mr. Haynes. No, sir, I think there's a lot of confusion out
there, and perhaps in this room. When you talk about 35
techniques, what I think about is a product of the working
group, which operated from January 2003 until sometime in the
end of March 2003. When you talk about what Secretary Rumsfeld
approved for the interrogation of Mohammad al Qahtani, the 20th
hijacker, you're talking about a decision in November 2002.
There were not 35 techniques, that I know of, associated with
that analysis in 2002.
Senator Graham. No, I understand. That's a good point. The
interrogation of the 20th hijacker, al Qahtani, if I have his
name right, Qahtani. We know who we're talking about.
Mr. Haynes. I think it's al Qahtani.
Senator Graham. Okay.
Mr. Haynes. Yes, sir.
Senator Graham. That involved the use of dogs and having
him stripped naked in front of female personnel. Was that
correct? That's what this report found?
Mr. Haynes. Which report are you referring to?
Senator Graham. The Schmidt-Furlow report.
Mr. Haynes. Okay. Senator, let me try to untangle that,
because I think there's some conflation there.
I sat through the earlier testimony of the earlier panels,
and, frankly, was enlightened from some things I don't think I
ever knew and some things that I had forgotten. But, the
immediate previous panel went into great detail about what was
approved by SECDEF in December 2002 for use with al Qahtani,
the 20th hijacker. Two of the items in category 2, as I
recall--and I don't know if those documents are in here that I
can look at or not; if it's important, you can point them to
me--involved clothing and use of phobias.
Senator Graham. Right.
Mr. Haynes. Admiral Dalton and Colonel Beaver testified at
great length before this panel about what was approved by the
SECDEF and what was not approved by the SECDEF. I think they
were very clear that the very widely-held understanding among
people who were knowledgeable about what was approved in each
of those two categories is not as you've described it. The use
of dogs was not intended to be, or authorized to be, dogs in an
interrogation room with the detainee; it was to be muzzled dogs
walking perimeter.
Senator Graham. Okay. The report found that it was a
muzzled dog in a room.
Mr. Haynes. Let me get to that in a minute. The other thing
that was authorized and widely understood by people
knowledgeable about the decision was that ``removal of
clothing'' was not nudity.
Senator Graham. Okay.
Mr. Haynes. So, that's what was approved. Now, let me----
Senator Graham. I have--okay.
Mr. Haynes. Sir, but I haven't responded to your question.
Senator Graham. Right.
Mr. Haynes. You then jumped to say that it involved use of
dogs in a room and naked people.
Senator Graham. Right.
Mr. Haynes. What I think you're referring to--and I have
looked at it since this exchange that you had--was an
investigation by a Lieutenant General Schmidt----
Senator Graham. Right.
Mr. Haynes.--in conjunction with a General or Admiral
Furlow, years after the fact----
Senator Graham. Right.
Mr. Haynes.--looking into some belatedly disclosed e-mails
that came to light at the headquarters level, 2 years after the
fact. General Schmidt investigated some 24,000 interrogations
conducted between early 2002 and early 2005, when he issued his
report, and identified less than a handful of problematic
interrogations, two of which you've identified.
Senator Graham. Right.
Mr. Haynes. One was when somebody walked into a room with a
dog.
Senator Graham. Right.
Mr. Haynes. I have the pages here of his report.
Senator Graham. Your testimony is that they were never
authorized. If it happened, it was unauthorized.
Mr. Haynes. That is. But, I'd just refer you to pages 15
and 19 of that report.
Senator Graham. Right. But, that's my point. You agree that
if it did happen, it was never authorized by you or Secretary
Rumsfeld in the fashion described.
Mr. Haynes. Yes, sir.
Senator Graham. Okay, fair enough. Now, these techniques
that we're talking about, that were approved in December and
later modified, mirror the SERE program in an uncanny way.
Mr. Haynes. I can't speak to that, Senator.
Senator Graham. Where did they come from? Somebody
somewhere had to sit down and make a list of--these are the
three categories, these are the things that you can use in
different combinations. Somebody somewhere had to sit down and
write this stuff down. Who was that somebody, and where did
they get this information from?
Mr. Haynes. I think the last panel spoke to that, and I
would just refer you to the people who were involved closer to
GTMO than I was.
I'd also say, unless--I don't know if you can point me to
something else, I've not seen any other documents or any other
categorization of interrogation techniques like that which came
up from GTMO--1, 2, and 3--with those particular groupings.
There are a couple--as I recall, of itemizations in that list
that fall in some categories, like the Army Field Manual.
Senator Graham. Who made up the list? Who made up the list?
Mr. Haynes. I don't have firsthand knowledge of who made up
the list, but Colonel Beaver testified as to how it came about.
Senator Graham. Okay.
Mr. Haynes. I think there's also, if I may, Senator, some
documentation that DOD has provided to the committee that--I
can refer you to the Bates stamp--that talked about how they
came up with their list. The Bates stamp numbers are 008771 and
008779.
Senator Graham. Yes, right. I know my time's up, but this
list that somebody came up with, your client approved, right?
Secretary Rumsfeld.
Mr. Haynes. Secretary Rumsfeld approved a subset of the
list that was proposed by GTMO and by General Hill.
Senator Graham. Okay, and you had knowledge of that list.
Mr. Haynes. Oh, yes, sir.
Senator Graham. Okay, thank you.
Chairman Levin. Thank you.
Senator McCaskill.
Senator McCaskill. You have just said, Mr. Haynes, that you
were the senior lawyer for DOD, correct?
Mr. Haynes. Yes, ma'am, that's correct.
Senator McCaskill. So you had a lot of lawyers under you?
Mr. Haynes. I'll put it this way, there are over 10,000
lawyers in DOD.
Senator McCaskill. A year and a half ago, that would have
shocked me. It doesn't surprise me today. I'm not sure that's a
good thing.
You have 10,000 lawyers there, and you had received
information about this request for more aggressive
interrogation techniques. You had received legal input about
this prior to you presenting this document for approval by
Secretary Rumsfeld, correct? You had received the information
from the various lawyers in the Services and other lawyers,
Criminal Investigation Task Force (CITF). You had received
information from a number of lawyers that were asking questions
about these techniques, legal questions about these techniques.
Mr. Haynes. Let me try to make sure I understand your
question. This is, again, 6 years ago, so my memory is not
perfect, but I do not recall seeing the memoranda that I think
were referenced in the earlier panel's testimony. That's not to
say I wasn't aware that there was a lot of anxiety about how
DOD would question terrorists. That concern was present from
the moment the war began, and it remains a very interesting and
difficult issue. It tends to be fueled by two different
approaches. It tends to be fueled, on the one hand, by law
enforcement-minded people, people of good faith, intelligent,
with great intentions, who come at a problem with a law-
enforcement mind; and, from the other perspective, people
interested in the collection of intelligence during the conduct
of warfare, who are less concerned about preserving a record
for ultimate criminal trial.
Senator McCaskill. Okay, let me go down that path. I don't
mean to interrupt you, but I don't have a lot of time, and I
have to go preside, so I apologize if I appear to be rude.
You have said that you relied on the legal analysis of
Lieutenant Colonel Beaver. Is that correct?
Mr. Haynes. I read her opinion, and I made my own decision,
based on my own analysis, which would have included considering
her memorandum.
Senator McCaskill. Did you have a legal analysis that you
performed? Do you have any legal memorandum that you prepared
that would have augmented her legal opinion?
Mr. Haynes. My decision and advice is reflected in the memo
that you have, which is a one-page memorandum.
Senator McCaskill. The one-page memorandum that does not
cite any legal precedent whatsoever.
Mr. Haynes. That's correct.
Senator McCaskill. In fact, it doesn't even talk about
legal precedent or Geneva or Constitution or the laws against
cruel and unusual punishment.
Mr. Haynes. That's correct.
Senator McCaskill. Is there any legal document that you
relied on that you can refer to today, other than the memo
written by Lieutenant Colonel Beaver?
Mr. Haynes. There was the package that came up with it.
But, let me----
Senator McCaskill. Wait, wait, wait. There was no legal
opinion in that package, other than her legal opinion. Was
there any other legal opinion you relied on? Of those 10,000
lawyers in DOD, was there any legal opinion, written legal
opinion, written analysis that lawyers do, based on law and
precedent, that you relied on, other than Lieutenant Colonel
Beaver's legal opinion?
Mr. Haynes. I'd like to respond to your question----
Senator McCaskill. Okay.
Mr. Haynes.--Senator. Because it's important that you
understand how DOD works.
DOD has 2.5 million employees, $700+ billion budget,
worldwide operations, and I was the chief legal officer of DOD.
When I would put my initials on a document that was passing on
its way to the SECDEF, that was an indication that I had
reviewed it and I found it legally sufficient. I didn't have
time, and it wasn't my practice--in fact, that memorandum that
you have is one of the longer reflections of something that I
would have done personally. I typed that memo myself.
Senator McCaskill. Okay.
Mr. Haynes. So, if I may, Senator, the package is
important, because it reflects not only where it comes from,
who's empowered if it's approved to do what's in there, but
also an understanding of the pattern and practice and standard
operating procedures (SOPs) and judgment employed by the people
who are proposing it and sent it down. Because the Secretary
has even less time than the general counsel does. Same thing
with the Chairman of the Joint Chiefs of Staff (JCS). The
Chairman doesn't write long memoranda; he initials things. So,
the fact that there's not a detailed legal memorandum
associated with that was not unusual.
Senator McCaskill. I'm not saying it was unusual, sir. I am
just trying to get to the bottom of whether or not the legal
analysis that you were supposed to be performing as your job,
whether you relied--we have a lot of lawyers that were experts
in military law, that have been saying, ``Red light, red light,
problem, problem.'' The only analysis I can find in all of the
material I've reviewed, and I've reviewed a lot of it, that
really legally try to lay down a premise supporting this was,
in fact, Lieutenant Colonel Beaver's analysis. I am trying to
get you to acknowledge that that is, in fact, what you used.
Mr. Haynes. There was that. There was also the endorsement
by General Dunlavey, the Commander of Joint Task Force (JTF)
180, I think--or 170--at the time, who expressed his opinion.
He didn't write his opinion as a----
Senator McCaskill. I think he referred to her opinion,
didn't he?
Mr. Haynes. You can look at it. I don't have it in front of
me.
Senator McCaskill. I think he did. I think what he said in
his is----
Mr. Haynes. May I----
Senator McCaskill.--``I'm relying on Lieutenant Colonel
Beaver's opinion.''
Mr. Haynes. May I finish?
Senator McCaskill. Yes, you may.
Mr. Haynes. I think he also said, ``I believe these are
legal.'' General Hill, who was the next layer of command, made
a similar assertion. He made the assertion, as I recall--and I
don't know if it's in these documents or not--that he believed
all of category 1 and category 2 were legal, and he had some
questions about category 3. So, those three layers coming up,
together with my understanding of the package, my discussions
with my staff and Captain Dalton and her staff, to the extent
that there was one--there was a very close working relationship
between our two offices--led me to make the conclusion that I
did.
Senator McCaskill. Okay. I don't believe----
Mr. Haynes.--and it's my decision.
Senator McCaskill.--General Hill was a lawyer. Is he?
Mr. Haynes. No, he's not.
Senator McCaskill. I don't believe Major Dunlavey was a
lawyer. Is he?
Mr. Haynes. He's a judge.
Senator McCaskill. He's a judge. Okay.
Mr. Haynes. General Hill has a lawyer. Now, I also heard
the earlier--or had a lawyer. He was the combatant commander;
he had a legal staff--a staff judge advocate (SJA) with a legal
staff, and he wrote the memorandum, as is reflected in your
files, and you can read it. But, I heard the exchange on the
earlier panel about----
Senator McCaskill. Immunity in advance?
Mr. Haynes. No, Lieutenant Colonel Beaver's difficulties
with the SJA at the next-higher level, which was news to me.
Senator McCaskill. Okay. A minute ago, you talked about the
two approaches, and you said there's the people from law
enforcement, and then there's the people that are in a time of
war and they're trying to get intelligence. The idea of getting
intelligence is getting reliable information. It appears to me
that the most experienced people in our country at getting
reliable information from people who are wanting to harm other
people are, in fact, law enforcement. That's what they do.
They understand interrogation techniques much better, and
that's what their profession embraces, is interrogation
techniques. I can assure you that there are many instances of
tough, tough interrogation techniques within the framework of
criminal interrogations within the constitutional framework of
our country, but, nonetheless, we have to get really solid,
good information in order to keep people from dying, in order
to keep people from being hurt, on a constant, ongoing basis.
I'm trying to figure out why there should be two sets of laws
associated with that--if the goal is to get good information,
why there would be two different sets of rules.
Mr. Haynes. That's a very interesting proposition with a
lot of pieces, and let me try to address that.
First, let me tell you that I have only the highest regard
for the law enforcement community. I agree with you that
they're skilled, professional, well-intentioned people, who do
great work in a particular environment. By the way, there were
lots of law enforcement people at GTMO who were equally
frustrated, including the Federal Bureau of Investigation
(FBI). So, I don't mean, for a minute, in trying to describe
the environment that the country faced at the time--and still
faces, frankly--as favoring one over another; I'm just
describing the existence of a set of conflicting philosophical
approaches that are fueled by very different purposes.
The law enforcement community, to be sure, as you say, is
there to protect us. It's there to enforce the laws and to
protect us, and, ultimately, to develop a record to prosecute
and punish wrongdoers. Because of our constitutional system and
our fantastic system of criminal justice in our country, we
have a very generous set of procedural underpinnings that the
law enforcement community has to be mindful of in the way it
interrogates people.
Senator McCaskill. I'm not talking about that, sir. I'm
talking about what works. I'm talking about what's effective.
I'm talking about how you get good information. What has been
talked about over and over and over again in the Senate, in
this room, in other rooms like this throughout this Capitol,
it's not just a matter of legal analysis, it's also what works.
Mr. Haynes. Oh, I agree.
Senator McCaskill. People will tell you what you want to
hear. If you're torturing them, they'll tell you what you want
to hear.
It's not an effective way to get good information, and law
enforcement knows that. Frankly, I wish I didn't have to go
preside, but I know my time is up, Mr. Chairman.
Mr. Haynes. But, Senator, I need to respond to that,
because nobody has advocated torture, period. I don't advocate
torture. I don't question your appreciation that effective
interrogation is what we're after. I agree with that. I'm not
an interrogator. I'm not an intelligence officer. I'm not an
FBI person. I'm a lawyer. My job in this exercise that we're
probably going to get into at this point is to talk about, what
does the law permit, and what does the law prohibit? It's
important to understand those two conflicting approaches from
the experts, of which I am not. In appreciating how I can
respond to your question, did I know that there were people who
had problems with the approaches? Absolutely, and I believe,
and I believed at the time, that it sprang from those things,
because I saw it repeatedly, and I see it now.
The effectiveness of interrogation approaches is something
that we all want. But, in my experience as an observer, a
reluctant observer over the last 6 years, as general counsel in
doing some of these kinds of things that I had no idea I was
going to get into when I took the job, is that it is case-by-
case, person-by-person, situation-by-situation, and type-of-
information by type-of-information, as to what is the best and
what is the most appropriate approach.
Chairman Levin. Thank you, Senator McCaskill.
Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
Mr. Haynes, how are you? I appreciate your being here
today.
We can all remember, right after September 11, everyone was
expecting something else to happen, and I think we have
documentation now that there were a lot of plans out there that
we successfully were able to stop, to thwart, in one way or
another--the Fort Dix plot, the JFK Airport plot, the liquid
explosives plot. The media had quite a few things for the
Washington Post, ``The U.S. has thwarted the dirty bomb
terrorist plot a year after''--this is the one that was in the
L.A. Times by Josh Meyer--signals high risk on new attacks,
terrorism alerts, and all of that.
Now, I would assume that a number of things led to and
prompted the use of new techniques, and I assume that that's
part of what led to the new techniques. Would you tell us, how
does DOD change techniques, and where do the new techniques
come from?
Mr. Haynes. I'll try to answer that, Senator, but let me
respond to your opening.
You're absolutely right that the context is very important.
You've listed a number of incidents that I had forgotten about,
frankly. But, at the time that this particular proposal that
we're talking about today came up, the fall of 2002, DOD had
discovered, months after he had arrived, that a person named
Mohammad al Qahtani was likely the 20th hijacker that would
have been the pilot on the plane that went down in
Pennsylvania.
Now, in the fall of 2002, we had just passed the
anniversary of September 11, and our intelligence people tell
us that anniversary dates are important to the al Qaeda. The
Bali bombings, which killed hundreds of innocent people,
happened on October 12, 2002. The DC snipers, which terrorized
this city, had just been captured, and people weren't certain
where they were from, whether they were associated with the
external threat or whether they were what they turned out to
be. The anthrax cases of a year earlier had still not been
solved. Zawahiri, who was Osama bin Laden's number two, issued
a video threat on October 8, 2002, saying, ``God willing, we
will continue targeting the keys to the American economy.''
Early in the summer of 2002, there were deadly attacks in
Pakistan and Tunisia. There was a capture earlier that year of
an America citizen who was suspected of being involved in a
dirty bomb plot. Plenty of other still-classified threat
information.
One of the things that the Intelligence Community was
concerned about was that al Qahtani, who is the person who came
into Orlando Airport in August 2001, a month before September
11, to be met by Mohamed Atta, the pilot--the ring leader of
the September 11 attacks, and had been turned away, whether he
had a companion on that plane, because other hijackers had come
into the country in pairs, and there were people roaming around
the country, and whether al Qahtani had information about other
plots. So, there was a high degree of urgency to deal with
this.
Now, your question, how do they come up with other
interrogation techniques? Again, I would refer, in this case,
to the previous panel that talked about that, and to the Bates
stamped documents that I told you. But, the bottom-line
understanding that I have, Senator, is that the Intelligence
Community didn't know how to deal with this, nor did the law
enforcement community know how to deal with this. For al
Qahtani himself, nobody had been able to get him to talk. He
claimed to be a----
Senator Inhofe. I think that's very significant. So, we're
dealing with something here that no one had dealt with before.
This was all new to us.
Now, on the resistance portion of the SERE program, do
other countries train their people--what about Israel, Great
Britain, and some of the others--do they train them--have a
similar type of program?
Mr. Haynes. Senator, I suspect that they do, because
they're a sophisticated--they have sophisticated militaries,
but I am not an expert in that.
Senator Inhofe. Are you familiar with the Manchester
document that was found in Manchester, England?
Mr. Haynes. I am. I've seen it. It's widely reported and
available, and it talks about, among other things, training for
al Qaeda members who may be captured, how to resist
interrogation and what things they should claim, such as
torture; whenever they're questioned, they should claim that
they're being tortured.
Senator Inhofe. Now, how does an interrogator--maybe you
don't know this, because it may not have been a--but, I'm
wondering how an interrogator determines whether or not
resistance techniques are being used by a detainee.
Mr. Haynes. I don't know.
Senator Inhofe. Okay, that's fine.
Mr. Haynes. I assume that they don't talk, for one thing,
if they know they have information.
Senator Inhofe. In a Frontline interview with Mark
Jacobson, you answered several questions, probing questions
about the Field Manual 34-52, and the new techniques that
Secretary Rumsfeld approved. Did you agree with all of the new
techniques that were approved by Secretary Rumsfeld in, I think
it was, December 2002?
Mr. Haynes. Oh, yes, sir, the ones that he approved in
December 2002, I did agree with.
Senator Inhofe. All right. In the same interview, you talk
about tiers and percentages relating to the different
interrogation techniques, and detainees that they were used
against, respectively. Can you explain to the committee which
of these tiers, and what percentage of detainees they were used
against, that resulted from the 2002 memo?
Mr. Haynes. Senator, I'm not sure I know what you're
talking about.
Senator Inhofe. Okay. I'm talking about the tiers and the
percentages of detainees that had used these. Let me rephrase
that.
What rules and regulations or guidance was in place with
regards to the use of these techniques at that time?
Mr. Haynes. I believe, before the Secretary approved the
techniques listed in that proposal from Southern Command
(SOUTHCOM), what the Command was using was existing doctrine,
which was the old Army Field Manual and then whatever the law
enforcement community used.
Senator Inhofe. Okay. We hear a lot about the category 3
techniques. Were these ever used at GTMO, or do you know?
Category 3?
Mr. Haynes. Okay, if you're referring to the proposal from
GTMO in the fall of 2002, there were, I believe, four category
3 techniques. Only one of those was approved by the Secretary,
and I'm told that that was not used at all.
So, if they did what they were authorized to do, none of
the category 3 techniques would have been used.
Senator Inhofe. Yes. Mr. Haynes, let me just tell you, one
of the concerns I have, and several of us have, about all the
hearings that we've had are how they can be used politically. I
saw a 1-hour--it's supposedly a documentary--I understand that
this documentary is going to be shown sometime prior to the
election. It was called ``Taxi to the Dark Side.'' You watch
this for an hour, you get the impression that the leadership of
the country was encouraging torture, that our troops--it's a
real slam at them--are using it on a regular basis. I remember
so vividly, the last scene of this movie was someone being hung
up by his arms, with his shirt off, being stabbed with electric
probes in the chest, and screaming, and all of that. Now, that
was actually just a Hollywood set, just like a Rambo movie, but
you're led to believe that this is something that is going on.
So, I want you to know that a lot of us are very much
concerned that there is a lot of political use of this that I
don't really think is very appropriate.
I would like to have you comment on the abuses at Abu
Ghraib. Was this sort of thing happening everywhere, to your
knowledge? In your former capacity as DOD General Counsel, were
the techniques that were used at Abu Ghraib in any way
encouraged, approved, endorsed by Secretary Rumsfeld or anyone
else in DOD, to your knowledge?
Mr. Haynes. There are a few things in that to--first off,
to my knowledge, no, they were--they were not endorsed or
approved or even reviewed by anyone above the Central Command
(CENTCOM) level. But, I think it's also very important to point
out that what most people think about when they think about Abu
Ghraib is the abuses that occurred that were not even
interrogation at all. I should add that these incidents have
been investigated to a degree probably greater than any other
incident in DOD history, so there is a lot of data about what
did happen and what didn't happen. I think it's consistently
determined that the photographs that were so widely broadcast
in 2003, and even to this day, reflect nothing that was
approved interrogation. It was just flat-out abuse by people
who were not being supervised.
Senator Inhofe. Thank you very much. That's my feelings
exactly, but I would also add that prior to the time we had our
very first hearing on Abu Ghraib, the Army had started
conducting its own investigation, and it had already taken some
steps to disciplinary action. That was my memory.
Thank you very much, Mr. Haynes.
Mr. Haynes. Thank you, Senator.
Chairman Levin. Thank you, Senator Inhofe.
Senator Reed.
Senator Reed. Thank you very much, Mr. Chairman.
Mr. Haynes, you're aware of the memorandum that were
prepared by the Judge Advocate General (JAG) officers in the
Service branches which expressed significant concerns about
most, if not all, of these techniques?
Mr. Haynes. Senator, you're referring to something that's--
--
Senator Reed. I'm referring to memorandums that the
Chairman of the JCS solicited through Admiral Dalton.
Mr. Haynes. Let me, if I may, try to get some clarity.
You're referring to a group of memoranda that I do not
recall seeing at the time. I believe I was shown a couple of
them when I appeared before your committee in closed session
about a month ago, and that's the first time I recall seeing
those memoranda. But, as I was trying to describe to Senator
McCaskill, I don't want anyone to walk away from my statement
about that to suggest that I don't--or didn't know that there
were concerns about how DOD should interrogate prisoners.
That's what I was--you probably missed it, but we had a long
exchange about this chronic debate about how to interrogate.
Senator Reed. I'm less concerned about this chronic debate,
but the senior counsel for the Chairman of the JCS deliberately
tasked the representatives of the Services to comment on the
specific memorandum that Colonel Beaver prepared that was the
substance, the foundation of your recommendations, that they
prepared written statements expressing significant concerns
about all of these techniques. This is the opinion of at least
four uniformed officers and some law enforcement personnel
who've spent their careers in the uniform of the United States,
both as lawyers and as military personnel. You were aware of
those, but you weren't curious enough to ask them to be given
to you so you could read?
Mr. Haynes. I don't know that I was aware of those----
Senator Reed. You either----
Mr. Haynes.--specifically, as----
Senator Reed.--were or you were not.
Mr. Haynes. I don't recall being aware of any particular
memoranda----
Senator Reed. No, but let me--so, you're trying to make a
judgment about, a very sophisticated legal judgment about, the
Geneva Convention, Law of Torture, UCMJ, and you're aware of a
debate going on within the Services, which express significant
concerns, but you have no--forget legal obligation--no
intellectual curiosity to ask people specifically, ``What's the
problem?''
Mr. Haynes. Oh, Senator----
Senator Reed. Is that just----
Mr. Haynes.--I have lots of curiosity, and I take my
responsibilities, and took my responsibilities, very seriously.
This was a very serious issue.
Senator Reed. All right.
Mr. Haynes. Absolutely, there were a lot of factors
involved, very important questions, including the safety of the
country and the urgency of the circumstances to try to get
information from this individual, who we knew----
Senator Reed. No, no.
Mr. Haynes.--was to be a hijacker on the 20th plane, who
continued to claim he was a falconer.
Senator Reed. Your fundamental responsibility was to render
a legal opinion to the SECDEF.
Mr. Haynes. It was, and it----
Senator Reed. His responsibilities included many of the
things you referred to, the overall danger of the country. In
fact, you could certainly have given him an opinion that, in
your view, that there were certain matters which would not be
consistent, and he could have overruled you. But, your
obligation, I think, was to give him the best legal opinion.
So, let's just stick to that.
The other factor here is, where in your memorandum is there
a reference to, ``This is restricted to the Qahtani case
only''?
Mr. Haynes. You can read my memorandum.
Senator Reed. I did, and there's no such reference. In
fact, category 1 and category 2 are given a blanket approval by
the Secretary, at the discretion of General Hill, at the time.
The only reservation in category 3 is not that it's illegal--
you claim they're all legal--it's just, as a matter of policy,
we won't do a blanket. There's nothing here referencing
Qahtani.
You're continually referencing, that the only thing you
were concerned about was Qahtani, is not substantiated by the
memo. Oh, and by the way, everyone can kibbitz about good
lawyering, but if the case was Qahtani, I would think your memo
would have said, ``In the case of Qahtani, you can do this,
this, and this.''
Mr. Haynes. Senator, I was there, and that was the
catalyst, and that was the purpose, and that was what
everyone----
Senator Reed. But, that's not the opinion you rendered.
Mr. Haynes.--that's what every Senator, we don't do these
things in a vacuum. You missed my exchange with----
Senator Reed. Excuse me, Mr. Haynes, but I think you did it
in a vacuum. You knew there was debate going on among the
military legal officers, great concerns, yet you did not ask
for their written memorandum. In fact, under Admiral Dalton's
testimony, you communicated, through General Myers, that she
should cease her formal analysis in response to these concerns.
Is that accurate?
Mr. Haynes. I have the highest regard for Admiral Dalton,
and I'm sure whatever she said is accurate, to the best of her
recollection. I don't have perfect recollection of that time,
but I accept her word. There's no question about it.
Senator Reed. But----
Mr. Haynes. Let me finish, Senator, because you say I acted
in a vacuum; that's absolutely not true. I looked at this,
hard. You know DOD. You're a West Point graduate, you're a
Harvard-trained lawyer, you're a fantastic Senator; I have the
highest regard for you. But, you know how that place works.
There are thousands and thousands and thousands of decisions
made every day. This was one. It was an important one, but it
was one, and it came in the context that I described a moment
ago, with an extraordinary degree of urgency. My client--my
boss, the SECDEF, needed a recommendation. It had been sitting
in the headquarters for a month, when he--the SECDEF said, ``I
need a recommendation''--to his senior advisors--me, the
Chairman of the JCS, the Deputy SECDEF, the Under Secretary for
Policy, and others who met with him every day--``I need a
recommendation.'' I took it. I looked at it. I looked at the
package. I looked at the circumstances. I made a legal
judgment. I consulted with Captain Dalton during that time. Her
testimony reminds me of the care with which we dealt with it,
and I rendered my opinion.
Senator Reed. But, it doesn't remind you of whether or not
you told her to cease her formal analysis.
Mr. Haynes. I don't remember that, specifically. But,
Senator, let me say, it makes sense to me, even in this remote
time, because there are 10,000 lawyers in DOD. There has been a
portrayal of this event in the press, and in today's hearing by
some people, as if the military lawyers all objected and the
civilians or somebody just ignored them. There were military
lawyers whose job it was to advise those people in that chain
of command--the commander at GTMO, the commander of SOUTHCOM,
the Chairman's lawyer, and then me, for the SECDEF. The
testimony earlier mentioned that CENTCOM--or the SOUTHCOM
lawyer was perhaps not as involved as he might have been, but
the other three people in the chain of command whose job it was
to advise those leaders looked at it carefully, looked at it
under the circumstances. There is a paucity of law that was
applicable at the time, and my job, as the lawyer, is not just
to say no, but to say, ``Where is the area of discretion
available to the client?''--in this case, the SECDEF. That was
my determination, and I stand by it.
Senator Reed. What did you rely upon? What legal analysis,
specifically? Not your just thinking internally about these
great issues, but----
Mr. Haynes. I'll try to go through it with you right now.
The U.S. Constitution, we believed, under the Eisentrager case,
did not apply at GTMO. The President had already determined
that the Geneva Conventions did not apply to the al Qaeda
detainees or the Taliban detainees. The CAT would apply, but
it's a non-self-executing treaty. The implementation of that
was the statute passed by the Congress of the United States and
signed by the President, so the prohibition against torture
reflected in that statute applied. Article 16 of the CAT
prohibiting--or imposing on the United States and undertaking
to prohibit cruel, inhumane, and degrading treatment, was
applicable. The President's order to treat detainees humanely
was a restriction. The application--and the Uniform Code of
Military Justice (UCMJ), to some degree, would apply, as well--
and the application of those strictures to this circumstance
under the operating procedures that all of the decisionmakers
and advisors understood to be applicable led me to believe that
the Secretary had the discretion to authorize the techniques
that we recommended.
Senator Reed. If the UCMJ applied, do you agree with
Colonel Beaver's analysis that it would be a per-se violation
of Article 128 to engage in the poking and light pushing?
Mr. Haynes. I did not think so.
Senator Reed. Did you make that--any clarification why she
didn't agree with you?
Mr. Haynes. I didn't write a memorandum to that effect. I--
--
Senator Reed. Did you write any memoranda to this effect?
Mr. Haynes. I wrote the memorandum that you have in front
of you, and that was actually more expansive than the General
Counsel of the DOD usually does in decisionmaking for packages
going to the SECDEF.
Senator Reed. How did you communicate this decision to
SOUTHCOM and to GTMO? Did you send them a copy of the
memorandum?
Mr. Haynes. I did not. I think it's important also to note,
Senator--and I'm sure you'll appreciate this--as the lawyer, I
was not the decisionmaker. I was an advisor. The SECDEF made
the decision, based, in part, on my advice, as well as the
Chairman of the JCS's advice. The normal transmittal of a
decision of that nature would be through the Joint Staff, and I
would assume that's how it was passed.
Senator Reed. So, once the Secretary signed off in it, you
had no followup on this at all. You don't know how it was
communicated.
Mr. Haynes. I would think it was communicated in the normal
fashion.
Senator Reed. Was this memorandum sent down to----
Mr. Haynes. I--Senator, I don't--I mean----
Senator Reed. You don't know.
Mr. Haynes.--I don't--that's----
Senator Reed. Admiral Dalton----
Mr. Haynes.--not part of my job to do.
Senator Reed.--went to great length to say that her
recommendation to you, her concurrence was based upon the
conditions that would govern the use of these techniques. How
were these conditions communicated by the SECDEF, and where are
they reflected in your memo?
Mr. Haynes. They're not in my memo. But, as I told you,
most decision documents that would go to the SECDEF would--I
wouldn't write, nor would most of the other staff people who
would sign a--on a block, would not write extensive----
Senator Reed. But, if those----
Mr. Haynes.--``Don't do this''----
Senator Reed.--conditions were----
Mr. Haynes.--``don't do that.''
Senator Reed. If those conditions were central to the
legality of your advice, wouldn't you have a legal obligation
to make the Secretary aware of them? This goes to a more
fundamental----
Mr. Haynes. Can I----
Senator Reed. Did you----
Mr. Haynes.--answer, or----
Senator Reed. Did you tell the Secretary how difficult and
close a call this was and how that there was significant
adverse conclusions by subordinates, and that his--if you
follow Admiral Dalton's logic, that his concurrence would
require significant conditions that he also must approve, or at
least be aware of?
Mr. Haynes. Senator, you're assuming something that's not
so. You're assuming that there were no understood conditions.
Senator Reed. But, understood by who?
Mr. Haynes. Understood by everybody involved in the
process. People who were knowledgeable about the proposal and
how it would be applied all understood what was meant by the
proposal. Captain Dalton talked at length about that in the
earlier panel, and I don't know if you were here to hear that--
--
Senator Reed. I was here.
Mr. Haynes.--to listen to it. But----
Senator Reed. Could you list the conditions----
Mr. Haynes.--as--sir, as well as----
Senator Reed.--that were applicable? Could you list the
conditions that an interrogator had to follow?
Mr. Haynes. Could I list them?
Senator Reed. Yes. Everyone understood them.
They were clear to the interrogators, clear to everyone
else.
Mr. Haynes. Senator, you've probably got access to more
documents than I----
Senator Reed. No, no, I'm asking you----
Mr. Haynes. Let me finish.
Senator Reed.--Can you list the conditions?
Mr. Haynes. If I may----
Senator Reed. No, I'd like you to answer the question.
Mr. Haynes. If you'd let me finish, I'd say you have more
documents than I've ever seen on this, and you will have, in
the documents that you have, the SOPs, the people assigned to
monitor. You had testimony earlier. There were interrogation
plans that were supposed to be designed for each individual
detainee who was to be interrogated. That would involve a
psychological review. There had to be medical care associated
with it. There had to be a legal review. There had to be
substantial command monitoring. There was a step process that
they were supposed to go through. They were supposed to stop if
anything came up. There were all sorts of conditions, and not
to mention, Senator----
Senator Reed. Where in this memorandum is the reference to
those conditions?
Mr. Haynes. Sir, not to mention the training and the
quality of the soldiers that I think these questions malign.
Senator Reed. I object strenuously to that. You did a
disservice to the soldiers of this Nation. You empowered them
to violate basic conditions which every soldier respects, the
UCMJ, the Geneva Conventions. Here's what soldiers do. You said
the Geneva Conventions don't apply, and they honestly asked,
``What does apply?'' The only thing you sent them was, ``These
techniques apply.'' No conditions, nothing. So, don't go around
with this attitude of you're protecting the integrity of the
military. You degraded the integrity of the United States
military.
I have finished my questions.
Mr. Haynes. Senator, I object to that, and I disagree with
that. I would also point out that the President of the United
States, with the advice of the entire Cabinet, made the
determination about the applicability of the Geneva
Conventions.
Chairman Levin. Senator Sessions.
Senator Sessions. Thank you, Mr. Haynes, and thank you for
your service. You've served your country in uniform. I know
your son is in ROTC now, and seeking to be a military officer,
and I know you love and respect the military, and I know that
you care about getting this matter right.
But, I would just ask you this question, because, despite
what the accusations have been made here today, and criticisms
and second-guessings, I think the evidence shows that it was
intensely legal studied all throughout this process. I believe
Mr. Goldsmith, who thought that President Bush was too
aggressive in some of these matters, and, after he left the
DOJ, wrote a book--and I'll ask you if you agree with him--
``Many people believe the Bush administration had been
indifferent to these legal constraints in the fight against
terrorism. In my experience the opposite is true; the
administration has paid scrupulous attention to law.''
Do you think you paid scrupulous attention to law in trying
to get this right?
Mr. Haynes. Every time I acted, I understood the enormous
responsibilities of my job, and I tried to do that.
Senator Sessions. He also wrote, ``Many people think the
Bush administration has been indifferent to wartime legal
constraints, but the opposite is true; the administration has
been strangled by law, and, since September 11, 2001, this law
has been lawyered to death.'' Is there some truth in that, in
your opinion?
Mr. Haynes. Oh, yes, sir, I think so.
Senator Sessions. With regard to these techniques that were
discussed and approved, did you say that Major General--two-
star General Dunlavey, who headed the GTMO JTF, was a judge?
Mr. Haynes. He's a judge in civilian life.
Senator Sessions. So, this is a lawyer and a judge, and he
has the advice of a JAG attorney on his staff, and they
concluded that they had a high-value individual there who
claimed to be a falconer, but who had met with Mohammad Atta
and been rearrested in--was it Iraq or Afghanistan?
Mr. Haynes. I think he was captured in Afghanistan.
Senator Sessions. In Afghanistan. The normal interrogation
techniques had not worked, and they submitted a request to do
enhanced techniques. Is that right?
Mr. Haynes. Yes, sir.
Senator Sessions. That came up through General Hill, and
he's the SOUTHCOM Commander, a four-star general.
Mr. Haynes. Yes, sir.
Senator Sessions. You evaluated the categories and the
requested techniques, and you had to make a recommendation to
the SECDEF. You were his lawyer, and you had to recommend that.
Mr. Haynes. Yes, sir.
Senator Sessions. Now, you had other things on your plate
at this time, too, did you not?
Mr. Haynes. I did.
Senator Sessions. But, did you rubberstamp what they asked
you, or did you pare back in any way the requests that they had
made?
Mr. Haynes. Did not rubberstamp. Indeed, I recommended that
only a subset of the requested techniques be applied.
Senator Sessions. You say a ``subset,'' but you rejected
the category 4 techniques and the category 3 techniques, so it
all--I think, all of those--is that correct?
Mr. Haynes. There were three category 3 techniques that I
recommended not be used.
Senator Sessions. So, that was your recommendation to the
SECDEF, and he approved that.
Mr. Haynes. Yes, sir.
Senator Sessions. Now, after that, is it not so that other
JAG officers raised questions about this and the wisdom of some
of these techniques, and a working group came together?
Mr. Haynes. Sir, that requires some explanation. As I've
said in response to some other questions, the difficulty of
these issues never abated. After the Secretary approved, in
other words, there was a difficult decision leading up to the
one that the Secretary made, and then, after that decision,
that continued, including in my own--I mean, these are not easy
questions. This is not something that I did, as you say, as a
rubber stamp or did lightly. I continued to stew on that,
frankly. I talked with people, and I heard from Mr. Mora, made
sure that I alerted the Secretary. I had daily meetings with
the Secretary and the Chairman, and so forth, and I made sure
they were aware of this continuing concern.
Over time, I went back, from time to time, to the Secretary
and ultimately convinced him that we needed to take another
look at what he had recommended, or what he had approved--what
I had recommended, what he had approved--and convinced him that
he should rescind his approval, which he did on January 12, as
I recall. I believe it was a Sunday, because I got a call from
General Hill. That decision was memorialized on January 15.
In preparing that rescission document for the Secretary, I
recommended that he instruct me to set up a working group to
look at this more thoroughly, which I did. I don't want to take
up all of your time, but the point is that there was a very,
very thorough, broad-gauged, multidisciplined look at how we,
DOD, should deal with this problem, going forward.
Senator Sessions. Do you think you were aware of the
tensions between too much aggressiveness and the need to get
information and the legality and the treaties and the law and
the policies of the United States? Do you feel like you were
wrestling with all those issues as you made these decisions in
a fair and objective way?
Mr. Haynes. Sir, let me point out again, the decision to
employ particular techniques was not mine to make, but, in the
course of trying to come up with recommendations for the
Secretary, all of those things that you've described were in
the mix, so to speak.
Senator Sessions. You concluded they were lawful.
Mr. Haynes. Yes, sir, but the ``they'' that you're talking
about now, when you're talking about the working group, is a
different set of interrogation techniques that the SECDEF
approved in April 2003.
Senator Sessions. Okay. Let's get that straight. So, after
the first approval, or disapproval, of a number of the
requested techniques, and you approved a certain number, you
continued to look at that, and you recommended to the SECDEF
that some of those not be approved in the future and to be
taken off the approved list, and you restricted further the
request of the GTMO Task Force for approval of techniques.
Mr. Haynes. Yes, sir, that's generally correct. There were
other people involved in that, but that was my view.
Senator Sessions. Take a moment and explain what you meant
when you and Senator Reed discussed the question of medical
review being--the people being interrogated being monitored for
medical review or psychological review, that there be a command
review, and--of these conditions; and what role of approval did
General Hill, the four-star Commander of SOUTHCOM--what role
did he play in having to approve the utilization of
extraordinary techniques?
Mr. Haynes. There is a document that lays that out what was
embodied with the SECDEF's decision in April 2003, that lays
out those approval levels. Some things could be delegated--some
decisions about interrogation approaches could be delegated
below General Hill, but some decisions needed to be approved by
the combatant commander--General Hill, in that case.
Senator Sessions. What requirements did they have on them
with regard to observing the physical condition of a individual
being interrogated or did they have to watch out for their
health?
Mr. Haynes. Oh, yes, sir.
Senator Sessions. What requirements were placed on that?
Mr. Haynes. That was a fundamental requirement. There is an
obligation to safeguard the people who had been captured, and
to keep them healthy and safe and secure. So, there was the
fundamental humane-treatment requirement that the President had
demanded of the Armed Forces from the beginning of the war,
but, even during the interrogations, of course, there was
particular attention required of those people who were involved
in the interrogations, including medical care and psychological
care, as well as the interrogator and legal oversight.
Senator Sessions. Failure to do that would have been in
violation of military standards.
Mr. Haynes. Of the direct order.
Senator Sessions. Now, just to wrap that up, there was the
Bybee memo by the DOJ, not DOD, and that memo has been
criticized, and that's the one that was withdrawn, is that not
correct, as going too far?
Mr. Haynes. I believe you're referring to a memorandum
interpreting the United States Code provision on torture,
prohibiting torture. If I recall correctly, that memorandum--
that legal opinion was rescinded by the DOJ in the middle part
of 2004 and replaced with a different opinion at the end of
2004.
Senator Sessions. Let me just point out, category 2
techniques in your--that you approved--stress position; maximum
4 hours standing; falsified documents--presumably, you could
present falsified documents to encourage discussion or
admissions; isolation for up to 30 days only--Federal prisoners
are often kept in isolation longer than that; nonstandard
interrogation environments, hooding, 20-hour interrogation
periods, and so forth. But, the torture statute that Congress
passed in 1994, 92 to 8, prohibits severe physical or mental
pain or suffering--``severe.'' I just don't think the things
that are mentioned in there are in violation of the
congressional definition of torture. I think that's what
Attorney General Ashcroft said at a Judiciary Committee lunch,
``I didn't define `torture,' Senators, you defined it.'' So,
Congress defined ``torture,'' did it not?
Mr. Haynes. Yes, sir, and they used the words that you
described.
Senator Sessions. Severe physical pain or suffering.
Thank you, Mr. Chairman. I just would conclude and say, I'm
not sure we got it right. I know President Bush was concerned
about America. I know he was determined to get better
intelligence, as we all were. I'm not sure we've yet figured it
out precisely. But, I object strenuously to the suggestion that
DOD went out with a policy of reckless disregard for law and
were systematically abusing prisoners. Indeed, those in Abu
Ghraib who were not part of an interrogation, but were really
abused prisoners--those people--many of them went to jail. They
were tried and convicted in the military court-martial. So, I
just want to emphasize that it's never been our policy to
torture people, and then, the definition of what's permissible,
I guess we can all agree or disagree.
Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator Sessions.
Senator Graham.
Senator Graham. As we conclude, here--at least my part of
it will be concluded--I'd like to go through some scenarios,
here, and make sure I understand what your testimony is.
According to the FBI, in the October-November timeframe
2002, before the Rumsfeld memo was approved, FBI agents
indicated they witnessed interrogation techniques against the
20th hijacker that included making him pray to an idol shrine;
abusive conduct, including having a dog used in interrogation.
That's what the Schmidt-Furlow report revealed. Is it your
testimony that Secretary Rumsfeld--neither Secretary Rumsfeld
nor yourself ever approved any such techniques for the 20th
hijacker?
Mr. Haynes. I tell you today that, to my knowledge, the
SECDEF had no knowledge of that, nor did I.
Senator Graham. That's all I'm asking.
Mr. Haynes. I think that's what General Schmidt concluded
in his report.
Senator Graham. Okay. That's all I'm asking. I just wanted
to get that right.
All right. Now, the General Counsel for the Navy came to
you with concerns before the memo was signed in December, is
that correct? Or after?
Mr. Haynes. After.
Senator Graham. Okay. Did he threaten that, ``If you do not
revisit this, I will draft up a memo, and I will go public
about this?''
Mr. Haynes. I think I heard him say that today, and I've
seen accounts of that. I don't remember that exchange. I
remember him coming in at least twice, very passionately and
understandably concerned, because he had been hearing things.
In each case--my recollection--in each case, I listened to him,
I reported up the chain, and I asked Captain Dalton to look
into it, to see whether there was anything untoward going on.
Senator Graham. Okay. Right. So, it's your testimony that
he's saying today, and other days, that he had to threaten the
release of his opinion about these interrogation techniques to
the public at large, and it would look bad for the
administration, that he felt compelled to go on the record, so
to speak, about this, that had nothing to do with you
revisiting the December memo?
Mr. Haynes. There's an assumption in that question that I'm
not rejecting, I'm not accepting it. I don't remember that
particular edge to the discussions.
Senator Graham.--Mr. Haynes, from December to January, I
believe it is--when was the memo repealed and replaced?
Mr. Haynes. There are two significant dates: January 12,
when there was an oral rescission and January 15, when there
was a writing.
Senator Graham. I got you. From December 2, I think was
when he approved this memo until January 12, what happened in
that intervening period to make you recommend to him, ``We need
to take this thing off the table''?
Mr. Haynes. I think I said, earlier today, that all through
this period, I had my own misgivings. So, it's hard to identify
a single thing.
Senator Graham. Right, your testimony is that certainly you
don't recall that it was the threat that Mr. Mora made about
going public if nothing was done.
Mr. Haynes. I don't recall him doing that. I do recall him
being very passionate about his objection to what was approved.
But I want to be----
Senator Graham. Okay. Yes, please.
Mr. Haynes.--I want to be responsive.
Senator Graham. That's a pretty quick turnaround, from
December 2 to January 12. Something had to happen that was
fairly earthshattering, I would think to create a policy for
DOD and have it rescinded 6 weeks later.
Mr. Haynes. No, sir, because--I've tried to impart the
chronic and very intense passion about how one goes about doing
this. It's one of the reasons that I felt very strongly that
the Secretary ought to get this working group with all the
players involved, because there were so many competing
concerns.
Senator Graham. Okay, that's right. Now, did the working
group that was formed ever review the final product that was
later approved?
Mr. Haynes. You and I have had a discussion about this in
another context, where I think we were talking past each other.
So, I can tell you great detail about that, but let me just
tell you what my recollection was, briefly. The answer was----
Senator Graham. No, we're not going to do it that way. I'm
tired of doing it that way. Here's what we're going to do.
Mr. Haynes. Okay.
Senator Graham. We're going to get to the bottom of this.
Mr. Haynes. Okay.
Senator Graham. The point of the matter is that other
people have testified that they were assembled as part of a
working group, giving input; a memo was issued that they never
saw, and they didn't find out about it until a year later. Are
they correct when they say that?
Mr. Haynes. I don't have firsthand knowledge about that. My
understanding then was that they saw the final report.
Senator Graham. If there's so much passion about this, and
everybody's so upset, you can't verify the fact that the
working group got to look at the final product?
Mr. Haynes. I thought they did. I thought they did.
Senator Graham. They say they didn't.
Mr. Haynes. I wrote a letter that explained my view of
that.
Senator Graham. Where did all the passion go?
Mr. Haynes. I don't know how to answer that, Senator.
Senator Graham. Where did your passion go?
Mr. Haynes. My passion was to try to get the Secretary some
good counsel. What this working group did, which I think was a
great exercise of government, frankly----
Senator Graham. Their point of view is that they were
assembled to give input; and they read about, in the paper,
what the final product was. Now, that's what they've testified,
under oath, that these guys and gals had no clue about what the
final product was. They were brought in to be part of a working
group, and they read in the paper, a year later, that you found
out a new way of doing this, and they looked at it and still
had concerns.
Mr. Haynes. I wasn't running the working group.
Senator Graham. Okay.
Mr. Haynes. But, I will tell you that the entire leadership
of DOD felt like that the work of the working group led to a
very good result. When I say that, I'm talking about, not just
the Secretary, not just the Chairman of the Chiefs and the
Service Secretaries who advised----
Senator Graham. With all due respect, Mr. Haynes--and I
know you had a very difficult job, and a lot of this is
uncertain. I'm just worried about the process. The process
here, to me, is clear. Just my two cents worth is that the
working group was formed because you got criticism from Mora,
and you had to deal with that criticism, and you did rescind
the memo. To your credit--to your credit, you did that. But,
the working group never really got to see the final product,
and I'm not so sure that's much of a working group.
Now, let's go back to the December 2nd memo. One of the
techniques, the category 3 techniques that were never used, was
water boarding. Is that correct? Water boarding was a category
3 technique?
Mr. Haynes. I think it was described as a cloth with water
dripped on it, not--I've never really understood--what that
technique was, but it was listed and it was not approved.
Senator Graham. I understand. Now, do you think that's
legal? Would that violate the UCMJ? Would it violate the UCMJ
for one of our--a couple of our military personnel to grab
somebody, hold them down, put a cloth over their face, and
simulate drowning?
Mr. Haynes. As we sit here today, absolutely yes, it would
be illegal.
Senator Graham. Okay.
Mr. Haynes. At the time? I don't know.
Senator Graham. Okay.
Mr. Haynes. But, the law is very clear now.
Senator Graham. Yes. You don't think it was clear then that
waterboarding a prisoner was a violation of Article 90--Article
128 in--the Maltreatment of Prisoner Article?
Mr. Haynes. I didn't reach that question, Senator.
Senator Graham. Okay. Thank you for your service. I know
you were dealt a difficult hand.
Mr. Chairman, I appreciate this hearing.
I guess the thing that I'm left with is that there
certainly was an attitude that we may be attacked again, and
people were rightly concerned. The law took on the view of
being an impediment to our safety, not our strength. I think
what got us to this problem--got us in this mess was that a lot
of people saw the laws that regulated conduct made us more at
risk, not safe. I guess we've learned--if we've learned
anything from this, that the rule of law in this war is a
strength, not a weakness. Now I think we have it right, and I
appreciate those who were trying to do this early on after
September 11.
But, it is clear to me, Mr. Chairman, the memo was never
limited to one person. It is clear to me that these techniques
do encompass techniques that we were defending against, and it
became an offensive weapon. It is clear to me they migrated all
over the military. It is clear to me that we created confusion
for those serving this country, and it was a--one of the great
tragedies of--after September 11, that we allowed our enemy to
take advantage of this situation, because they surely have. In
an effort to make us safe and to conquer our enemy, I think,
for a period of time, we could not have done more to help them
by creating this confusion and this mess. In that regard, these
hearings have been helpful.
Chairman Levin. Thank you, Senator Graham.
Mr. Haynes, I want to go back now to October 2002. This is
when the GTMO request was forwarded by General Hill to the JCS.
On October 30, General Myers, Chairman of the JCS, circulated
that request from GTMO to the military Services for comment. I
want to go through those military Services comments with you.
Tab 12 (see Annex A), that's a November 7, 2002, memorandum
from the Army. Paragraph 2, the memorandum says, ``The Army
interposes significant legal, policy, and practical concerns
regarding most of category 2 and all of category 3
techniques.'' Were you aware that the Army had concerns with
those techniques?
Mr. Haynes. Senator, I think I've testified to this--I
don't recall seeing this memorandum before. I'm not even sure
this is one I've seen before, but you----
Chairman Levin. I mean at the time. Were you aware, at the
time----
Mr. Haynes. I don't recall seeing----
Chairman Levin. All right.
Mr. Haynes.--memorandum, and I don't recall specific
objections of this nature.
Chairman Levin. The next page on that tab 12 is a memo from
the chief of the Army's International Operational Law Division.
It says, ``Stress positions, deprivation of light and auditory
stimuli, the use of phobias to induce stress crosses the line
of humane treatment and would likely be considered maltreatment
under the UCMJ, and may violate the torture statute.'' Were you
aware of the Army's International Operational Law Division,
that they had concerns with these techniques?
Mr. Haynes. You--I'm sorry, I was--I lost you. Is this the
third--there are three----
Chairman Levin. Memo from the chief of the Army's
International Operational Law Division.
Mr. Haynes. Is that the one that has ``IO'' at the top?
Chairman Levin. Yes, it's tab 12 (see Annex A).
Mr. Haynes. All right, the third one at tab 12. I'm sorry,
and your question is, was I aware of this----
Chairman Levin. Were you aware of that?
Mr. Haynes.--memorandum? I don't recall seeing this
memorandum.
Chairman Levin. All right. Tab 11 (see Annex A) is a memo
from the chief legal advisor to the CITF at GTMO. It says
category 3 techniques and certain category 2 techniques, ``may
subject servicemembers to punitive articles of the UCMJ,''
called the ``utility and legality of applying certain
techniques questionable.'' That's tab 11. Were you aware that
the CITF had concerns with those techniques?
Mr. Haynes. This is the----
Chairman Levin. Tab 11 (see Annex A).
Mr. Haynes. This is the unsigned thing at tab 11, with--is
that the three-page document?
Chairman Levin. Tab 11.
Mr. Haynes. I----
Chairman Levin. The memo from----
Mr. Haynes. I'm at tab 11, but you've read a bunch of
things that I can't find, so--so, am I looking at the right
document?
Chairman Levin. You're looking at the right document.
Mr. Haynes. I don't recall seeing this document----
Chairman Levin. All right, thank you.
Next, tab 10 (see Annex A)--it's the Air Force's memo. It
says, ``The Air Force has serious concerns regarding the
legality of the proposed techniques''--that's in quotes--states
that the techniques described may be subject to challenges
failing to meet the requirements outlined in the military order
to treat detainees humanely. Were you aware that the Air Force
had those concerns with those techniques?
Mr. Haynes. I don't recall seeing this memorandum, either.
Chairman Levin. Were you aware of their concerns?
Mr. Haynes. I don't recall specific concerns. I've told the
panel, sir, with all due respect, I knew there were concerns. I
don't recall these, and I don't recall seeing these memoranda.
Chairman Levin. Tab 14 (see Annex A) is the Marine Corps
response--mind you, they're responding, now, to a request of
the JCS to comment on a recommendation for treatment--relative
to treatment of detainees. Each one of the Services now
responding. Tab 14 is the Marine Corps. It says, in the third
full paragraph, ``Several of the category 2 and 3 techniques
arguably violate Federal law, would expose our servicemembers
to possible retribution''--were you aware of the Marine Corps'
concerns with those techniques?
Mr. Haynes. Sir, I think I've answered that before. I can't
even read this document, but I don't remember seeing it.
Chairman Levin. Okay. Now, when the GTMO request got to
your office, do you recall Eliana Davidson, who worked in your
office, telling you that she thought the request needed further
assessment?
Mr. Haynes. I don't recall that, specifically.
Chairman Levin. Do you know who Eliana Davidson is?
Mr. Haynes. Oh, absolutely. Yes, sir.
Chairman Levin. You don't recall her telling you that there
was further assessment needed.
Mr. Haynes. I don't recall that, specifically, but there
was a long period of time, and we did some further assessing,
so maybe she said that at the beginning, and maybe we did it.
Chairman Levin. All right. Now, before the SECDEF signed an
order approving these--all of category 2 and some of category 3
techniques--the Services' lawyers let your office know that
they had serious problems with that request. You vaguely
remember that there may have been something, but apparently you
never took the time to ask for those documents. Yet, when you
were asked, ``Did you pay scrupulous attention to the law?''
you studiously ignored the memos from the lawyers of the
Services that came to your office. You studiously ignored them.
Mr. Haynes. I disagree with that characterization.
Chairman Levin. Then you cut off the review, which had been
requested, and that Admiral Dalton was carrying out. Now, I
don't know how anybody can testify that you paid attention to
the law when you ignored the lawyers in the Services who
brought to your office these concerns, and then, when there was
a review going on by an attorney for the JCS, you sent the
word, which you don't doubt, that you wanted that review
stopped. That is not studious attention to the law.
It's quite the opposite. It is stymying consideration of
one of the most significant legal decisions which this country
has made, and that is how to treat detainees. The errors that
result in those opinions have caused this country tremendous
security damage.
So, now I'm going to ask you this question.
Mr. Haynes. May I respond to your comments? Because I
don't----
Chairman Levin. Yes.
Mr. Haynes.--I don't----
Chairman Levin. I know--I'm going to ask you a question,
and then you're more than free to do it.
Mr. Haynes. Okay.
Chairman Levin. Do you agree that you cut off the Dalton
review in the middle?
Mr. Haynes. I don't remember doing that.
Chairman Levin. How often have you ever cut off review--how
many times has this happened?
Mr. Haynes. Senator----
Chairman Levin. She says it's never happened.
Mr. Haynes. Senator, what I heard her say was that we
restricted the number of people involved. That's----
Chairman Levin. No.
Mr. Haynes. That's what I heard her say.
Chairman Levin. No. She said that she stopped the broad
review. That's what she said.
Mr. Haynes. She said she stopped----
Chairman Levin. It had never happened before or after, as
far as she knew. This is the one time that that had ever
happened, as far as she knows, and this is the one time where
you intervened--and you don't doubt this, apparently--to stop
that review.
Mr. Haynes. I don't remember it.
Chairman Levin. That is not paying attention to the law.
Mr. Haynes. Senator----
Chairman Levin. That is stymying a review of the law to
make sure that what we are doing comports with the law.
Mr. Haynes. Senator, I don't agree with that
characterization. There are plenty of examples of restricting
people who have a need to know, for security and speed reasons.
Chairman Levin. Of course. That's not what she was
testifying here. She was testifying to a review which was
taking place.
Mr. Haynes. A broad review.
Chairman Levin. A broad review which----
Mr. Haynes. A broad review.
Chairman Levin.--was taking place for the JCS, at their
request. She says she never had had that kind of a request
stopped in the middle before. She never knows of it happening
afterward.
Then you say--then you have, to me, the audacity to say
that all of this is caused because there's two groups that are
in conflict--two groups in conflict--one are the law
enforcement people and the other are the people who want
information from interrogation, ignoring the third group, which
you ignored in November 2002. It's the third group, you
ignored. That third group were the lawyers for the military.
The military Services, to your office while this was under
review, sent those memos, raising all kinds of red flags, and
you ignored them, you don't remember seeing them. Then, when
that broad review was taking place by Admiral Dalton, stymied
that review.
Now, how can you say that there's only two groups here that
are involved, and this is tension between two groups--on the
one hand, the law enforcement folks; on the other hand, the
people who are doing the interrogation, who want information--
when there's that third group that sent to your office--and we
have testimony today that your office was definitely sent those
memos, and your staff had discussions about those memos with
the people who sent you those memos--how do you ignore that
third group of those Services and their lawyers who raised
those red flags? How do you ignore that? Why aren't they in
your equation?
Mr. Haynes. Okay. Senator, let me just make, at the outset,
my vigorous disagreement with your characterization. Just so--
--
Chairman Levin. How do you ignore the presence of those
lawyers?
Mr. Haynes.--just so we understand, Chairman.
Chairman Levin. I'm sure.
Mr. Haynes.--I disagree with your----
Chairman Levin. We understand.
Mr. Haynes.--characterization. I----
Chairman Levin. Now my question.
Mr. Haynes.--did not----
Chairman Levin. Now my question.
Mr. Haynes. I did not ignore concerns. I addressed the
concerns that--of the legality. There has to be a
decisionmaker. That was the job of the General Counsel of the
DOD. When you have multiple different perspectives and
opinions, when you have a short period of time, when you have a
novel situation, I made a decision. I did not ignore anything.
It was my practice to be as open as I possibly could.
Now, there are physical constraints to that. There is
other--there's time, there's classification, there's volume,
there's a certain amount of redundancy when one sees different
perspectives replayed from time to time. I've never denied that
there were disagreements, including legal disagreements,
about----
Chairman Levin. What you have denied is seeing them, asking
for them----
Mr. Haynes. Well----
Chairman Levin.--remembering them. That's----
Mr. Haynes. Senator, if----
Chairman Levin.--what's----
Mr. Haynes.--I may finish, I----
Chairman Levin. You may finish, but----
Mr. Haynes. I----
Chairman Levin.--I ask that you----
Mr. Haynes. I have----
Chairman Levin.--answer those questions.
Mr. Haynes. I told you that I don't recall seeing these
things. So, for you to say that I ignored them----
Chairman Levin. You did ignore them.
Mr. Haynes. If I----
Chairman Levin. You didn't ask for them.
Mr. Haynes.--didn't see them--if I didn't see them, I
didn't ignore them.
Chairman Levin. You mean--well, you knew there were
concerns.
Mr. Haynes. I----
Chairman Levin. Why not ask to see the memos that contained
those concerns?
Mr. Haynes. I told you, I didn't know that they existed. I
don't recall----
Chairman Levin. You didn't know those memos----
Mr. Haynes. I don't----
Chairman Levin.--existed?
Mr. Haynes. Senator, I don't recall seeing them, and I
don't recall knowing about the memoranda. I knew--I recall--
listen, this is 6 years ago. We had--I probably saw millions
and millions and millions of pages of information over the 7
years that I served in that job. So, for you to suggest that
because I didn't see every single piece of paper that a lawyer
might have expressed a view on an issue is ignoring it, I
think, is an unfair characterization.
Chairman Levin. I think it's very fair. I think it's right
on target. You indicated, a few moments ago, you had
misgivings, yourself, through this period.
Mr. Haynes. Sure.
Chairman Levin. What did----
Mr. Haynes. I did.
Chairman Levin. I've never heard you----
Mr. Haynes. I still do.
Chairman Levin.--never heard you express that before.
Mr. Haynes. I still do. I think this is a----
Chairman Levin. Have you ever----
Mr. Haynes.--very----
Chairman Levin.--expressed that, before today----
Mr. Haynes. Oh, sure.
Chairman Levin.--publicly----
Mr. Haynes. Absolutely.
Chairman Levin.--publicly, that you had misgivings about
that opinion?
Mr. Haynes. Oh--well, I don't--I don't know. But, I----
Chairman Levin. I don't either.
Mr. Haynes. But, I tell you, this is a very hard question.
Chairman Levin. It is very hard. It's a very hard question
which has a----
Mr. Haynes. But, it's more than just a legal issue----
Chairman Levin.--very critically important answer. I just
want to--I just want to be--you said there's two groups--and
then I'm going to turn this over to Senator Sessions--there's
two groups, you said, out there that cause this tension. You
haven't answered my question about that third group, the
military Services, who told your office, in memo after memo
after memo, all four Services--they wanted much more analysis,
they had great concerns about this. It may open up their troops
and their men and women to legal action, including criminal
action. That came to your office, concerns of the military
Services that their people may be subject to criminal action--
--
Mr. Haynes. Sir----
Chairman Levin.--and you say that, ``Gee, I don't remember
if I saw those. I don't.
Mr. Haynes. Mr. Chairman, I don't.
Chairman Levin.--``remember. Gosh''--that's the third
group, and you have not answered the question.
Mr. Haynes. Mr. Chairman----
Chairman Levin. Is there not that third group which you
should have consulted and considered?
Mr. Haynes. Mr. Chairman, I think that's also a
misperception of the reality that I experienced, because if you
think that the two extraordinarily gifted women lawyers that
were up here before, Admiral Dalton and Colonel Beaver, are not
military lawyers who expressed views, then I don't know what
they are.
Chairman Levin. I'm not talking about their views here now.
I'm not talking about their views here today.
Mr. Haynes. I'm talking about----
Chairman Levin. I'm saying that----
Mr. Haynes.--their views then.
Chairman Levin. Admiral Dalton was in the middle of a
review, which you squelched.
Mr. Haynes. No--sir, I talked with her at--she testified
that----
Chairman Levin. I heard her.
Mr. Haynes.--she talked at length.
Chairman Levin. You stopped that review in the middle, and
she balked when I said ``the middle.'' I said, ``Well, was it
two-thirds or one-third?'' She finally acknowledged it was
stopped in the middle. It's the only time she's ever heard
that.
Mr. Haynes. Again, I've told you what my views are on that.
I think that there was substantial discussion between me and
her, and evidently with our staffs, as well. I mean--and there
was a limited amount of time and a high degree of urgency and
a--and an uncertain set of rules because of the--because of the
conflict that we're in--alien enemy combatants outside the
United States not covered by the Geneva Conventions, with
potentially nation-threatening information.
Chairman Levin. Thank you.
Senator Sessions?
Senator Sessions. Thank you.
Mr. Haynes, I know these hearings are difficult and
Senators care deeply about these issues. I think it's healthy
in our country that they do. But, I do think you deserve
fairness.
I'm looking at Exhibit 11 (see Annex A), which was the Air
Force memorandum concerning these matters. The Chairman quoted
where it said that the problems and liabilities might occur if
all these techniques are used. But, if you go back up to the
top--first of all, let me ask you, was that directed to you?
Mr. Haynes. This is Exhibit 11, which is the three-page
unsigned document----
Senator Sessions. From the Air Force--Air Force document.
Mr. Haynes. My tab 11 is----
Senator Sessions. Are you not----
Mr. Haynes.--is CITF.
Senator Sessions. Maybe it's 10 (see Annex A). Excuse me,
10. I'm incorrect. So, it raised questions about these
techniques, but--all right, but was it directed to you?
Mr. Haynes. No, sir, this is directed to the United Nations
and Multilateral Affairs Decision, J-5 of the JCS, Commander
Lippold.
Senator Sessions. That's not you. It wasn't directed to
you. Is that right?
Mr. Haynes. Yes, you're right.
Senator Sessions. Then, look at the first paragraph,
``General Comment. The Air Force has serious concerns regarding
the legality of many of the proposed techniques, particularly
those under category 3. Some of these techniques could be
construed as torture as that crime is defined by 18 U.S.C.
2340. One of the proposed techniques is the use of scenarios
designed to convinced a detainee that death may--or severely
painful consequences are imminent for him or his family.'' Now,
did you approve that technique when you recommended to the
attorney general your recommendation as to what, within the
request, should be approved, or did you disapprove that?
Mr. Haynes. I did not recommend that. I'm glad you pointed
that out, Senator. Having not seen these before, and not being
able to read it while I was being asked questions, I didn't see
that the concern highlighted here is that which was not
recommended, nor approved.
Senator Sessions. In fact, this memorandum was directed to
the request from CENTCOM, General Hill's office, originating
from GTMO, not your memorandum. Isn't that correct?
Mr. Haynes. Yes, sir, that's correct.
Senator Sessions. So, it wasn't your decision that they are
complaining about here, but the request from GTMO, which you
didn't approve.
Now, look at the next one you were asked about, on Exhibit
13 (see Annex A). It originally starts out--it's a Memorandum
for Legal Counsel to Chairman of JCS, but that was struck
through. That's not you, either, is it?
Mr. Haynes. Again, I think we have--we're looking at
something different.
Senator Sessions. Okay. Well, maybe it's 12 (see Annex A).
Mr. Haynes. Oh, this is----
Senator Sessions. Excuse me, 12.
Mr. Haynes. Okay.
Senator Sessions. All right. Do you see that? So, this
memorandum that the Chairman asked you about, that he said
you're supposed to know about, it wasn't directed to you,
either, was it?
Mr. Haynes. No, sir, it's addressed to the J-5 UNMA,
attention Commander Lippold.
Senator Sessions. Their criticism, is it not, in paragraph
1, states that ``The Army has reviewed the request of the
Commander U.S. SOUTHCOM''--that's General Hill, four-star
general--``for further legal review by the DOD and the DOJ of
the proposal to employ counter-resistance techniques in the
intelligence interrogation of enemy combatants detained at GTMO
Naval Base Station.''
So, that again was a reference to the request that was sent
to you, an expression of concern. It was not directed to you,
so we shouldn't presume that you saw it. Number two, it didn't
refer to your decision, which rejected many of the requests
that came from GTMO. Is that right?
Mr. Haynes. That's right, Senator.
Senator Sessions. Looking at, I guess, number 12--or within
that--2 pages further on is the memorandum for the Office of
the Army General Counsel. Now, you're not the Army General
Counsel, are you?
Mr. Haynes. I was not, at the time.
Senator Sessions. You were counsel for the DOD. This
memorandum says, from John Ley, whoever that is, ``I have
reviewed the proposed request''--that's General Hill's
request--``for approval of counter-resistance strategies. I
concur in proposed category 1 techniques, but have significant
concerns--legal, policy, and practical--regarding most of
category 2 and all of category 3 techniques.'' Is that correct?
Mr. Haynes. That's what it says.
Senator Sessions. That was not sent to you, not directed to
you.
Mr. Haynes. Yes, sir.
Senator Sessions. With regard to Exhibit 14 (see Annex A),
this would be a memorandum--I think you were asked about this
one--it was a memorandum for the Director of J-5, the JCS.
Would that be a memorandum directed to you or to somebody else
in the DOD?
Mr. Haynes. It would be to somebody else.
Senator Sessions. So, if the routing had been appropriate,
it wouldn't have come to you, is that right?
Mr. Haynes. It might have--it might have gotten up to my
office eventually. I just don't recall seeing it.
Senator Sessions. It wasn't directed to you.
Mr. Haynes. Correct.
Senator Sessions. --what office--who is that from, do you
see, there, what department? Is that an Army----
Mr. Haynes. This says the one I'm looking at is Captain,
U.S.----
Senator Sessions. That's the Marine----
Mr. Haynes.--this is Captain, U.S. Navy, the one I'm
looking at. Is that----
Senator Sessions. No, no.
Mr. Haynes. You're at a different one?
Senator Sessions. We're still on the wrong page. You and
Senator Levin couldn't get on the same page, and neither can
you and I.
Mr. Haynes. I'm looking at 13.
Senator Sessions. I'm looking at, I guess, 14.
Mr. Haynes. 14. This is the one that's very blurry.
Senator Sessions. Yes, it's blurry.
Mr. Haynes. It does say ``U.S. Marine Corps Reserve'' at
the bottom.
Senator Sessions. Yes. That's--it says ``Memorandum for the
Director J-5, the Joint Staff,'' not directed to you, either.
Mr. Haynes. Yes, sir, that's right.
Senator Sessions. The first paragraph says, ``We concur
with the general proposition of developing a more robust
interrogation plan.'' Then it goes on to say, ``We're
concerned, however, with the measures proposed in the subject
documents, especially category 3,'' which you rejected all but
one of those techniques.
Mr. Haynes. Like----
Senator Sessions.--so, there again, referring to the
proposal from GTMO, not from your and the--your recommendation
to the Secretary that he put in the policy document.
Mr. Haynes. Yes, sir, that's correct.
Senator Sessions. One question--there was some suggestion
about this issue, and I'll just ask you directly. When you
visited GTMO in September 2002, did you or any of the senior
administration lawyers suggest to Major General Dunlavey that
he request harsh techniques, based on the SERE program, when
you talked with him?
Mr. Haynes. I sure don't recall doing anything like that,
and I can't imagine I would have. The purpose of that visit, as
I recall, was to visit three different detention facilities in
a single day.
Senator Sessions. I just would say I--this is a difficult,
difficult thing. You were under great pressure. The American
people wanted intelligence. We had great criticism of our
failure to have good intelligence. People were afraid this
country was going to be attacked again. They felt this 20th
hijacker, particularly, had information that could perhaps
prevent another attack. I hope that--and believe--that you
tried your best to strike the right balance. Some can question
that, and maybe in the future we'll see it a different way.
But, at this point, I believe you did your best to serve your
country.
Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator Sessions.
It's been said that this matter has been investigated over
and over again, at least the part of it that relates to how
these techniques got to Afghanistan and Iraq. The focus of our
investigation, of course, is not that; it's where they all
began, not where they ended up.
But, in terms of those investigations, just again for the
record, General Fay stated in his report that a January 24,
2003, memo, called an ``Interrogation Techniques Memo''--and
this was 9 days after the rescission by Secretary Rumsfeld--
that memo, according to General Fay in an unclassified
statement, recommended removal of clothing, a technique that
had been in the Secretary's December 2 authorization, in
General Fay's words, and it discussed, ``exploiting the Arab
fear of dogs,'' another techniques which was approved by the
Secretary on December 2, I point out.
Now, from Afghanistan, how did they get to Iraq? This is
another report. It's been stated that this trail of these
techniques from GTMO to Afghanistan and then Iraq have been
investigated. Yes, they have been, and here's what the DOD
Inspector General (IG) said, that at the beginning of the Iraq
war, the Special Mission Unit forces in Iraq, ``used a January
2003 SOP which had been developed for operations in
Afghanistan.'' Here's what the DOD IG said about the
Afghanistan SOP, that that had been ``influenced by the
counter-resistance memorandum that the SECDEF approved on
December 2, 2002, and incorporated techniques designed for
detainees who were identified as unlawful combatants.
Subsequent battlefield interrogation standard operation
procedures included techniques such as yelling, loud music,
light control, environmental manipulation, sleep deprivation
adjustment, stress positions, 20-hour interrogations, and
controlled fear, muzzled dogs.''
Then, General Fay, again in his report, said that the
removal of clothing was imported to Abu Ghraib, and it could be
traced through Afghanistan and GTMO and contributed to an
environment at Abu Ghraib that appeared to ``condone depravity
and degradation rather than humane treatment of detainees.''
Again, as I mentioned in my opening remarks, that when I
asked General Fay at a hearing whether the policy approved by
SECDEF on December 2, 2002, contributed to the use of
aggressive interrogation techniques at Abu Ghraib, he responded
simply, ``Yes.''
So, yes, there's been a number of investigations of the
events in 2003 and 2004, but what this focuses on today--number
one, that shows the connection, those investigations, between
what happened at GTMO between the December 2, 2002, decision of
the SECDEF and what happened a year later or so in Afghanistan
and Iraq.
Now, my question--just a couple of more questions and then
I'll be done, Mr. Haynes. Did you ever discuss the SERE
techniques with Major General Dunlavey?
Mr. Haynes. I don't recall. I may have. I don't recall.
Chairman Levin. All right. Now, there is a memo of Mr.
Bybee from the OLC, which was dated August 1, 2002, that
provided guidance on interrogations prior to your
recommendation to the Secretary. That was an OLC memo. Did you
read it?
Mr. Haynes. I have read it.
Chairman Levin. No, at the time. Had you read it before you
made your recommendation to the Secretary?
Mr. Haynes. I don't know when I first read the memorandum.
Chairman Levin. Did you rely on that memo in your
recommendation to the Secretary?
Mr. Haynes. Senator, since I don't remember when I read
that, I have told you what I relied on. But that----
Chairman Levin. Was that included in what you told us?
Mr. Haynes. I don't think so. I think----
Chairman Levin. I don't either.
Mr. Haynes.--what I told you is what I--is the thought
process that I remember employing in determining that the
request that I--the subset of the request that I recommended be
approved was legal.
Chairman Levin. Did you tell our staff that it's likely
that you did read it before November 27?
Mr. Haynes. I may have. I just don't remember when I first
read it.
Chairman Levin. Now, this is an OLC legal memo which would
be binding on the entire Government, right?
Mr. Haynes. Would be authoritative----
Chairman Levin. For you. As General Counsel at the DOD.
Mr. Haynes. Sure. Yes, sir. If it expressed an opinion on
the law for the executive branch, that would be authoritative
within the executive branch.
Chairman Levin. So, why would you not have read that before
recommending a decision to the SECDEF?
Mr. Haynes. I----
Chairman Levin. It was dated before that.
Mr. Haynes. For one thing, that one is addressed to
somebody else.
Chairman Levin. So, you may not have known about it.
Mr. Haynes. I just don't remember, Senator, when I read it.
I just don't remember. I may have. I just don't remember. It's
6 years ago. There were a lot of things going on, Mr. Chairman.
Chairman Levin. Even though you may not have read it, were
you aware of the contents of it when you made the
recommendation to the Secretary to sign his December 2, 2002,
order?
Mr. Haynes. Chairman, I just--I told you, I just don't
remember.
Chairman Levin. Senator Sessions, are you all set?
Senator Sessions. Attorney General Casey, in his
confirmation, pointed out a Bybee memo, which apparently
attempted to set forth the full power of the executive branch
during a time of war in dealing with prisoners. As he said, not
only was--it was a mistake; it was worse, because it was
unnecessary. I think that's--was unwise for us to try to
anticipate and set the Bybee memo to anticipate all kinds of
possible scenarios, and then to approve or disapprove them.
You're much better off going case-by-case by carefully
considering all the circumstances in a fact-based circumstance.
While I think it did set some constitutional limits, I have
doubts about its wisdom. I guess it's fair to say the DOD, as a
matter of policy, did not feel, with regard to these
interrogations, that it was appropriate to use every single
power you may have, because some of the things that you
prohibited were policy decisions, as well as legal decisions,
were they not?
Mr. Haynes. Yes, but let me remind everyone that the
lawyers don't decide what gets used. We give advice, and that's
what I did.
Senator Sessions. So, your advice was what?
Mr. Haynes. My advice was--well, it depends on what the
question was, but in the case of the--I guess it was the
December 2 decision by the Secretary, based on my
recommendation that was--that was shared with the Chairman of
the JCS, the Deputy SECDEF, and the Under Secretary for
Policy--was that only a subset of those techniques requested by
GTMO be approved, and implicitly--and I'm sure I said so
explicitly--that those that we recommended, that I recommended,
were legal--as did Colonel Beaver and as did Admiral Dalton--
that they were legal.
Now, the next go-round, which was as a result not only of
the working group--and this is where I--I just wish that
exercise had a better appreciation by Chairman Levin and some
others, because it was very valuable to the leadership of the
DOD--that second round that resulted in Secretary Rumsfeld's
decision in April of 2003 about what techniques should employ--
should be employed, was also----
Senator Sessions. Where he restricted some he had
previously approved.
Mr. Haynes. He restricted, or outright did not authorize at
all, a different of, I believe, 24 techniques, with
extraordinary safeguards and approval levels. Far short of what
the DOJ advised the law would allow.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Levin. To go beyond that would require approval of
the Secretary, is that correct?
Mr. Haynes. Yes, sir. That's my recollection of what the
documents say, and it--I think that's what it says.
Senator Sessions. One more question, Mr. Haynes. With
regard to Secretary Rumsfeld, on either of those occasions did
he impose a personal action to approve a technique that you
didn't recommend, to your recollection?
Mr. Haynes. I'm not sure I can tell you about that kind of
thing, I think I'm restricted in what deliberative and
attorney-client communications I've had. So, I probably should
not answer that question. But, there's not a sinister answer.
Chairman Levin. Mr. Haynes, we thank you.
What today's hearing is focused on is the SERE techniques
which were incorporated into interrogation documents which were
never intended to be incorporated into interrogation rules.
Those SERE procedures were properly designed to help our men
and women survive, should they be exposed to the actions that
violated Geneva of our enemies. They were never intended to be
taught to interrogators, used by interrogators against our
enemies. That testimony was very, very clear in the panels that
we had today. Yet, we found those techniques, including
stripping detainees, including the use of dogs to induce
stress--we found those techniques--not only were they adopted
at GTMO and used in special instances, but then they moved over
to Afghanistan and Iraq in ways that the various investigations
have disclosed.
We've paid a huge price, as a country, for what was
unleashed when that December 2, 2002, order of the SECDEF was
signed. When it was rescinded, 6 weeks later, and then a
different document was put in its place a couple of months
after that, by then what had spread to Afghanistan and Iraq was
what we, I'm afraid, saw in those tragic pictures at Abu
Ghraib, because, while they were not the interrogators that
were photographed, they were the guards, and those guards,
according to our own--the investigations that have been shared
with this country, were influenced by the techniques which were
the interrogation techniques which had been shipped over to
Afghanistan and then Iraq. So, we paid a very large price for
what happened.
We will continue this investigation by asking people who
have been named in this investigation as being present in
meetings where SERE techniques have been discussed, whether or
not they were present at those meetings in GTMO, what was
discussed. We will, of course, continue our effort to find out
what happened to those Services' documents, those Services'
recommendations, those Services' red flags that were shared
with the SECDEF's legal counsel. They may not have been
addressed there. They were not addressed to the Legal Counsel,
but the testimony today indicated that, as a matter of fact,
they were shared with the General Counsel, excuse me, of the
SECDEF. That's what the testimony was today.
The General Counsel--or, the former General Counsel, Mr.
Haynes, isn't sure that he saw them. He heard about concerns,
does not remember whether he saw the documents or asked for the
documents. That is a--to put it mildly, a very disappointing
kind of a response to what is an extraordinarily serious
question, which is, how do you deal with detainees? The legal
response here was inadequate, and--to put it, I think--to
understate it. But, we will continue to get into the various
questions that I have just indicated, and others.
It's been a long day, I know, for our witnesses. We thank
all of our witnesses. We thank you, Mr. Haynes, for being here
voluntarily. We thank our colleagues for participating in this.
We will stand adjourned.
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator Carl Levin
ogrisseg memo
1. Senator Levin. Dr. Ogrisseg, given the differences between
training conducted at survival, evasion, resistance, and escape (SERE)
school and real world interrogations, would the conclusion in your July
24, 2002, memo to Lieutenant Colonel Baumgartner be that you felt
reasonably certain that SERE resistance training does not cause long-
term psychological harm apply if resistance training techniques were
used against detainees?
Dr. Ogrisseg. The conclusion in my July 24, 2002, memo to
Lieutenant Colonel Baumgartner was very specific to medically and
psychologically screened personnel with medical and psychological staff
monitoring the training and immediately available to intervene if
necessary. There are a number of important differences between SERE
school and real world interrogations that would limit my conclusions to
the SERE school training populations. I will review those differences
that I am aware of below:
1. Previous level of functioning and demographic factors.
Military SERE training students are screened multiple times prior
to participating in training to ensure that they are physically and
psychologically healthy. They get screened prior to entering the
service to ensure that they don't have certain disorders. Students are
required to get screened by military doctors at their home bases prior
to traveling for SERE training to ensure that they meet the physical
and psychological standards for participating in training. Most SERE
schools also mandate that students complete screening questionnaires
after they arrive at SERE school as a final safety check and for
additional help or interventions if needed, to include being restricted
from experiencing particular training procedures. Furthermore, the
students arrive with their medical records in hand or available
electronically to document their entire medical history, and
indications of prior psychological diagnoses since their original
military-entry physicals. These procedures are used not only to screen
people out of participating in training, but also for identifying
people who could be provided preventative interventions in order to
increase their probably of success in training.
Obviously, no such screening can take place with detainees. In the
SERE training environment nearly 100 percent of the trainees graduate.
However, in nearly every instance in my experience when students did
not graduate (outside of those who were injured during field survival
training) we subsequently found out that they had pre-existing
psychological conditions which were not reported on the screening
forms.
Detainees frequently arrive in interrogation facilities with
substantial injuries they sustained during battle prior to their
capture. Numerous studies of American prisoners of war (POWs) indicate
that being physically injured increases the likelihood of developing
psychological disorders. Furthermore, from extensive studies of allied
World War II and Korean War POWs, severe nutritional deprivation
increases the likelihood of developing psychological disorders. These
factors are not present in SERE training.
Students may arrive to the resistance training facility with minor
injuries such as minor bumps and bruises from spending several days in
the field. However, if they have acquired any significant injuries, or
arrive with histories of previous injuries that the medical staff deems
significant, they will be medically restricted from selected training
situations if necessary to avoid further injury. Likewise, to gain a
sense of what food deprivation is like and to motivate them to work as
teams to take care of their own nutritional needs, they certainly
aren't provided with three square meals per day as they would be in
garrison. However, they are never close to deprivation that would cause
nutritional disorders.
Aside from physical and mental health status, SERE training student
populations may be different from detainee populations in other
important ways. For example, previous successful coping with tough
realistic training that many in our military populations have
experienced likely makes them more resilient to start with. Differences
at the behavioral and hormonal levels between how special forces and
non special forces personnel respond to SERE training have been
published numerous times in peer reviewed professional journals.
Similarly, studies of POWs from World War II, the Korean War, and
Vietnam have consistently found differences in follow-up mental health
status based the POWs' age and military rank at time of capture, with
older and higher ranking personnel faring better. I would assume that
SERE training students are more homogeneous along these dimensions than
are enemy detainees.
2. Purpose of the experience.
SERE resistance training instruction is provided to increase the
survivability, enhance the resistance capabilities of the students, and
increase their confidence in their abilities to resist and survive. To
achieve all of these goals, SERE students need to experience a very
challenging environment and learn how to succeed in it. Students learn
to be more confident because of the challenge, not in spite of it.
Aggressive, coercive training approaches are a realistic part of this
challenging training environment because they've been used by nearly
all of our adversaries in past conflicts. Under these circumstances of
simulated captivity, students learn to reset their mental schema of
what success means. In this context, the aggressive, coercive training
approaches serve to increase resistance. As part of the overall process
however, students, like nearly all previous American POWs, will make
mistakes. One of the chief aims of training is to learn how to bounce
back from mistakes after they occur and continue to apply resistance
and survival skills. The operating instructions and rules of engagement
for training are all geared towards reinforcing these student-centered
goals.
Real world interrogation and detention facilities exist to elicit
information from the enemy that will be used to shape future and
ongoing military operations and provide our troops with tactical,
operational, and strategic advantages. As such, the detention
environment is another form of the conflict between adversaries. Unlike
in SERE training where the goal is not to defeat the student, the real
world interrogator wants to win. As in the SERE training situation, the
subject of the interrogation will make mistakes. Regardless of whether
aggressive, coercive interrogations methods are used or not, the aim is
certainly not to have the subject or detainee bounce back from these
mistakes and continue to resist, but rather to have them continue to
provide valid information to the allies. The goal of the interrogator
would seem to be to alter the detainee's mental schema about the
``mistakes'' in a manner that would lower the barriers to cooperation
with the interrogator. In any event, the mistakes made by a cooperating
detainee and the effect on his/her confidence is not a significant
concern or cause for corrective action by a real world interrogator
like it is for a resistance training instructor.
3. Risk management oversight functions.
Within the SERE training environment, there are multiple levels of
oversight mechanisms in place to reinforce the purpose of the training
and the training objectives, and to prevent harmful behavioral drift.
These include detailed operating instructions, and multiple levels of
out-of-role personnel, including out-of-role instructors, command
staff, and SERE psychologists. The primary purpose of the oversight
mechanisms is to watch the instructors to ensure they are complying
with the operating instructions. The secondary purpose is to watch the
students for indications that they are not coping well with training
tasks, provide corrective interventions with them long before they
become overwhelmed, and if need be, remotivate students who have become
overwhelmed to enable them to succeed.
Comparable oversight mechanisms to prevent behavioral drift should
exist within a real world detention facility. In this environment, it
is still necessary to have detailed operating instructions and have
personnel monitoring the operations who are removed from direct
interaction with detainees. However, rather than being geared towards
training aims, the operating instructions would be geared towards
standards and procedures that effectively elicit information while
upholding our obligations to Federal laws and international
conventions. The oversight personnel would monitor and control for
drift away from these standards in order to ensure effective detention
operations and to protect the national integrity. Unlike the training
environment, remotivating detainees to succeed is not an oversight
responsibility or concern. While it is U.S. policy to have physical and
mental health services available to detainees, it is not ethical to
have these services provided by practitioners serving other roles
within the detention environment.
4. Propensity for moral disengagement.
Moral disengagement is a term that refers to the attitude changes
that allow someone to violate their internal moral standards and act in
more aggressive and reprehensible ways. As part of the risk management
oversight role, SERE psychologists train the resistance training staff
on attitudinal and behavioral signs of moral disengagement, monitor the
instructors for signs of moral disengagement, and then intervene if
necessary to bring instructors back in line within the spirit of
training operational instructions.
A significant barrier to moral disengagement is removed in the
transition from SERE training to real world detention operations. While
moral disengagement can still occur in a SERE resistance training
setting (which is why the oversight mechanisms are in place), the
instructors are still dealing with their own country personnel. When
dealing with non-country personnel, as in the case of detainee
handling, there is greater risk of dehumanization of these personnel,
and thus a greater likelihood of worse treatment that exceeds the
limits of operational instructions.
5. Psychological and operational debriefings.
As I described in my July 24, 2002 memo to Lieutenant Colonel
Baumgartner, SERE training students receive several training debriefs
that serve to reinforce training objectives and decrease the students'
risk of developing psychological disorders by normalizing the students'
training experiences and reactions.
These debriefings are obviously not available to real world
detainees like they are to our students.
6. ``Voluntary'' nature of training.
SERE training, to an extent, is a voluntary experience. Students
can withdraw from training. It is not entirely voluntary, in that
completing training is a job requirement for many military specialties.
Failing to complete training can result in administrative consequences,
disqualification from worldwide deployment, and possibly retraining
into a different career specialty if students aren't ultimately able to
complete training. Nonetheless, students may terminate the training
experience if they desire to.
Being a detainee, like being incarcerated in the criminal prison
system, is not voluntary. Detainees cannot choose to withdraw from
their detention.
7. Limited duration of the experience.
The SERE training experience is of limited duration and has defined
starting and ending points. While the actual duration of training
events may vary depending upon how long it takes for students to
accomplish the training objectives, the variance in duration is usually
a matter of minutes or hours. At a minimum, trainees arrive on a
certain date and know that they will depart on a specified date.
Detainees do not know when their detention will end. Some
detentions last only over a span of hours, while others can last for
years. While long-term psychological harm can occur from relatively
brief distressing experiences, the likelihood of psychological harm is
generally increased by more lengthy and uncertain detentions.
8. Adjustment to the experience and follow-on support.
Numerous studies of POWs and hostages indicate that captivity does
increase the likelihood of long-term psychological dysfunction. As a
SERE psychologist, I've worked with a number of people who have
returned from captivity, and analyzed the circumstances and coping
strategies of a numerous other returnees that my colleagues have worked
with. As a result of my experience in this area, I do not assume that
people return from captivity broken or psychologically damaged. Indeed,
a majority of personnel returning from harsh captivity circumstances
exhibit no long-term psychological disorders.
What is clear to me is that captivity causes captives to have to
adjust. Some returnees adjust in maladaptive ways. Other returnees
exhibit what has been termed ``post-traumatic growth'', indicating that
the manner in which they adjusted to their experience (not the
experience itself) enhanced their lives in significant ways. For
example, Terry Waite, after his return from nearly 5 years of being
held hostage by the Islamic Jihad, the first 4 years of which was in
total solitary confinement, indicated that he learned to enjoy solitude
in a manner which he could never do prior to his kidnapping.
The simulated captivity experience we put people through in SERE
training causes students to have to adjust as well. Unlike real world
detention, SERE training is structured in a way to enhance and
reinforce positive adjustments and coping styles that have helped past
POWs and hostages to survive and return with honor.
Finally, the operational and psychological debriefing processes
used in SERE training help students adjust by understanding and
normalizing their responses to training dilemmas rather than
pathologizing them. The reintegration processes we have in place for
our personnel returned from captivity perform the same functions,
helping returnees successfully manage their re-emergence into everyday
life, and aiding future trainees to learn from their experiences. In
addition we help them develop action plans for how to handle future
situations the returnee may find challenging. Obviously, we cannot
assume that enemy detainees have comparable reintegration programs to
aid their adjustment, thus increasing the likelihood of them developing
long-term problems.
2. Senator Levin. Lieutenant Colonel Baumgartner, when you received
Mr. Shiffrin's request for information, why did you call Dr. Ogrisseg
at the Air Force SERE school and not the senior psychologist at the
Joint Personnel Recovery Agency (JPRA)?
Lieutenant Colonel Baumgartner. Having been stationed at the Air
Force SERE School from 1900 to mid-1993 I knew that SERE psychologists
had done research on various aspects of SERE training because of the
large annual student population the school afforded. Additionally, when
stationed at the Pentagon on the Air Staff from mid-1993 to fall 1996,
I answered several congressional inquiries with regard to SERE training
and my investigation for the inquiries indicated some research had been
completed at the SERE school. Having had a close familiarity with JPRA
and its predecessor organizations, I was unaware of any such research
specifically by JPRA.
october 2, 2002 meeting minutes
3. Senator Levin. Lieutenant Colonel Beaver, do you know who wrote
the October 2, 2002, meeting minutes?
Lieutenant Colonel Beaver. I do not but I assume it was someone
from the Criminal Investigation Task Force (CITF) because the e-mail
addresses containing the minutes referred to in this question were to
and from CITF personnel.
4. Senator Levin. Lieutenant Colonel Beaver, Jonathan Fredman
attended the October 2, 2002, meeting with you and other Guantanamo
(GTMO) personnel and discussed interrogations. Prior to that meeting,
had you discussed interrogations with anyone else from the Central
Intelligence Agency (CIA)? If so, please indicate the person with whom
you had discussions and describe those discussions.
Lieutenant Colonel Beaver. No.
memo for the department of the navy inspector general
5. Senator Levin. Mr. Mora, you said in your July 7, 2004, memo
that you spoke with Jim Haynes on January 15, 2003, to tell him that
you intended to sign out a memo objecting to the use of techniques
unless you ``heard definitively that the use of the interrogation had
been or was being suspended.'' Did Mr. Haynes give you any indication
during your conversations with him that the techniques had already been
orally rescinded?
Mr. Mora. On January 15, 2003, Mr. Haynes indicated to me initially
that Secretary Rumsfeld was ``considering'' rescinding the
interrogation techniques he had previously authorized for use in
Guantanamo. As I was weighing whether to sign or not sign out my memo
in light of the Secretary's promise to ``consider'' the withdrawal of
the interrogation techniques, Mr. Haynes interjected that he would
inquire further and get back to me. A few hours later that same day he
called me to say that the Secretary had ``rescinded'' his authorization
of the techniques. At no time did Mr. Haynes give me any indication
that the techniques had been previously rescinded. Had this been the
case, Mr. Haynes could have simply informed me of the fact upon our
first conversation that day.
national security council's principals committee meetings
6. Senator Levin. Mr. Haynes, did you attend any meetings of the
National Security Council's Principals Committee in 2002 or 2003 where
detainee interrogations were discussed? If so,
a. When and where did those meetings take place?
Mr. Haynes. During 2002-2003, I attended a number of Principals
Committee meetings. While it is very difficult to remember with clarity
meetings from many years ago, I recall attending one meeting with the
Principals Committee of the National Security Council in that time
period in which I recall interrogations were discussed, and I think
that was in early 2003. Principals Committee meetings often covered
many topics, but I think I remember one meeting in this time period
touching on the Department of Defense's (DOD) plans to convene a
working group to address the challenges posed by the Qatani matter as
discussed in part during the June 17, 2008 hearing. In my experience,
Principals Committee meetings took place in the Situation Room in the
West Wing of the White House.
b. Who else attended those meetings?
Mr. Haynes. I do not have a specific memory of everyone who
attended, but such meetings normally would have included the Principals
of the National Security Council, and occasionally supporting staff
from the National Security Council staff and the attending agencies.
c. Was there any discussion at those meetings of specific
interrogation techniques used or proposed for use in detainee
interrogations?
Mr. Haynes. My memory is not perfect, but I think the discussion of
interrogations primarily concerned a brief description of the challenge
presented by an uncooperative suspected 20th hijacker from the
September 11 attacks, the history of interrogation efforts at
Guantanamo Bay Naval Station, Cuba, to date, and the DOD's plans to use
a working group representing many different perspectives to develop
recommendations for the way ahead.
d. Was there any discussion about using techniques derived
from military SERE training in detainee interrogations?
Mr. Haynes. See answer to question 6c above.
e. Was there a briefing for the Principals on legal issues
associated with detainee interrogations? If so, who provided
that briefing?
Mr. Haynes. See answer to question 6c above.
f. Did any of the Principals or their advisors express
concern with any of the interrogation techniques or legal
guidance discussed? If so, please identify the person who
raised the concern and describe their concerns.
Mr. Haynes. See answer to question 6c above.
detainee working group
7. Senator Levin. Mr. Haynes, on January 15, 2003, Secretary
Rumsfeld directed you to set up a working group to assess the legal,
policy, and operational issues relating to interrogations. On April 4,
2003, the working group recommended a number of aggressive techniques,
but omitted stress positions and deprivation of light and auditory
stimuli, because they ``lacked sufficient information'' to fully
evaluate them. On November 27, 2002, you had recommended that the
Secretary approve those two techniques for use at GTMO. What
information had you based your November 27, 2002, recommendation on?
Mr. Haynes. Again, recognizing that these events occurred almost 6
years ago, I have trouble remembering such details. That being said, I
based my November 27, 2002 recommendation on a number of things
including among other things: the proposal forwarded by U.S. Southern
Command; the legal opinions and recommendations of Lieutenant Colonel
Beaver, Major General Dunlavey, and General Hill; my discussions with
Deputy Secretary Wolfowitz, General Myers, Under Secretary Feith and
then-Captain Dalton; a high degree of confidence in the integrity,
motivations, and judgment of the men and women of the Armed Forces at
Southern Command who would implement any proposal approved by the
Secretary of Defense; the law applicable at the time; and my own
experience and judgment.
8. Senator Levin. Mr. Haynes, did you make that information
available to the working group?
Mr. Haynes. The working group was provided broad access to
materials to conduct its review.
general hill memo
9. Senator Levin. Mr. Haynes, in General James T. Hill's October
25, 2002 memorandum on counter-resistance techniques sent to the
Chairman, Joint Chiefs of Staff, U.S. Southern Command Commander, he
requested that ``Department of Justice (DOJ) lawyers review the third
category of techniques.'' Did you or anyone in your office request a
DOJ legal review of the third category of JTF-170's proposed counter-
resistance techniques? If not, why not? If so, how did the DOJ respond?
Mr. Haynes. Lawyers within the DOD, not the DOJ, normally review
requests from DOD commanders. I recommended against three of the four
requested category III techniques. The only category III technique that
I recommended be approved was the ``use of mild, non-injurious physical
contact such as grabbing, poking in the chest with the finger, and
light pushing.'' I felt confident that, if done humanely and with the
appropriate safeguards and command supervision, this technique was
lawful. Accordingly, further DOJ review would have been unnecessary.
______
Questions Submitted by Senator Edward M. Kennedy
rendition policies
10. Senator Kennedy. Mr. Haynes, at your judicial confirmation
hearing in 2003, when asked whether you knew details surrounding the
``extraordinary rendition'' of Maher Arar, a Canadian and Syrian
citizen, you responded that you had no knowledge of his transfer. You
also advised the Judiciary Committee to direct related questions to the
Department of Homeland Security and the DOJ, implying that the DOD had
no role in operations involving Mr. Arar. Since that time, numerous
reports have confirmed that Mr. Arar was tortured and held in abhorrent
conditions in Syria. When did you first become aware of the rendition
of Mr. Arar?
Mr. Haynes. I do not recall when I first became aware of Mr. Arar's
alleged rendition.
11. Senator Kennedy. Mr. Haynes, would you please describe in
detail your knowledge of, and activities relating to, U.S. rendition
policies during your tenure at the DOD?
Mr. Haynes. While I am not permitted to discuss classified
information in this setting, I would point out that it is my
understanding that the Senate Select Committee on Intelligence has been
provided extensive information on classified programs involving
apprehension and treatment of detained terrorists in the war on terror.
12. Senator Kennedy. Mr. Haynes, would you please describe in
detail your knowledge of the DOD's renditions of terrorist suspects,
foreign citizens, or other individuals for purposes of interrogation or
detention?
Mr. Haynes. While I am not permitted to discuss classified
information in this setting, I would point out that it is my
understanding that the Senate Select Committee on Intelligence has been
provided extensive information on classified programs involving
apprehension and treatment of detained terrorists in the war on terror.
13. Senator Kennedy. Mr. Haynes, you were also asked in 2003 about
presidential findings authorizing foreign renditions of terrorist
suspects, but you declined to comment at that time. Would you please
describe your knowledge of such findings?
Mr. Haynes. While I am not permitted to discuss classified
information in this setting, I would point out that it is my
understanding that the Senate Select Committee on Intelligence has been
provided extensive information on classified programs involving
apprehension and treatment of detained terrorists in the war on terror.
convention against torture
14. Senator Kennedy. Mr. Haynes, in response to written questions
during your confirmation proceedings in 2003, you said that the DOD
``takes its compliance with U.S. obligations very seriously, including
the Convention Against Torture (CAT).'' Article 16 of this Convention,
which you testified has always been applicable in the administration's
fight against terrorism, binds the United States to ``undertake . . .
to prevent'' cruel, inhuman, or degrading treatment. In order to
prevent cruel, inhuman, or degrading treatment under our CAT
obligations, policies that clearly and unambiguously define boundaries
are necessary. Do you think that the DOD fulfilled its CAT obligations
when it issued policies that safeguarded detainees' dignity only by the
``understanding'' that tacit limits of those policies would be
respected?
Mr. Haynes. I believe that the DOD's policies were consistent with
the U.S. Government's obligations under the CAT.
15. Senator Kennedy. Mr. Haynes, when asked about interrogation
practices that you approved, you said at last week's hearing that it
was ``widely understood by people knowledgeable about the decision''
what was meant by the practices you said might be permissible. Do you
have any documents--training manuals, memoranda, etc.--that would
support the claim that these details were ``widely understood'' by the
individuals who would be applying them?
Mr. Haynes. I am no longer an employee of the DOD, and I do not
have any such documents. I believe, however, that the committee has
available to it ample materials which show that Southern Command
intended to employ safeguards such as, among other things, legal,
medical, behavioral science, and intelligence review of interrogation
plans as well as local training of interrogators in approved methods of
interrogation.
16. Senator Kennedy. Mr. Haynes, on what do you base your belief
that interrogators ``understood'' the precise limits of these approved
techniques?
Mr. Haynes. I was not assigned to Guantanamo Bay, Cuba. I cannot
opine as to what any particular interrogator understood. I do believe
the members of our uniformed services are highly professional,
competent and ethical and can be entrusted to supervise and execute the
most sensitive of missions. Military commands routinely establish
standard operating procedures to execute complex missions that are
supervised by leaders within the command at multiple levels. I had no
reason to believe that this would not take place when the command at
Guantanamo implemented the approved subset of the techniques it had
requested. Notwithstanding questions about a few incidents out of
thousands of interrogations, I continue to believe that they did so.
17. Senator Kennedy. Mr. Haynes, did you ever ask to see or approve
the operating procedures that were developed to implement the policies
you recommended?
Mr. Haynes. I assume this question refers to the recommendation of
late November 2002, discussed in part during the June 17, 2008 hearing.
I do not recall asking to see such operating procedures at that time.
This would not be something normally done at the General Counsel's
level. I also would not have been the appropriate person to approve any
such procedures.
interrogation recommendations
18. Senator Kennedy. Mr. Haynes, in the packet of memoranda
containing the analysis by Lieutenant Colonel Beaver upon which you
based your interrogation recommendations to Secretary Rumsfeld, there
was a memo by General Hill stating that he was ``uncertain whether all
the techniques in the third category are legal.'' He was ``particularly
troubled'' by some of the techniques. Yet in your recommendation to
Secretary Rumsfeld, you expressed the opinion that those tactics may be
legal while providing no additional rationale on which to base that
view. We now know that not only General Hill, but also many others
raised serious concerns that you failed to act on. Four different
opinions solicited by General Myers and Admiral Dalton contradicted
your conclusions. In fact, the Office of Army's General Counsel
indicated that it would need a ``more detailed'' explanation of the
techniques to begin to assess their legality. Mr. Mora testified that
every Judge Advocate General he'd spoken to believed Lieutenant Colonel
Beaver's analysis was deficient. Yet, you not only cut off the review
of her analysis, you never even asked to see what assessments had been
gathered to date. You claim that stopping the more extensive review was
based on ``a sense of urgency.'' Yet it appears you did not convey your
recommendation memo to Secretary Rumsfeld until 3 weeks after the
Services' views were communicated. Is this correct?
Mr. Haynes. There are a number of implicit assumptions within this
question that are incorrect. For example, I did not need to reach a
definitive legal conclusion that all of the category III techniques
were legal. Such a conclusion was unnecessary because I recommended
against the approval of three of the four category III techniques. It
is not an unusual practice to defer answering legal questions that are
premature. I also disagree with the characterization that I failed to
act on serious concerns raised by others. Indeed, in retrospect, it
appears that the three techniques that I recommended against approving
were the techniques that raised the most concerns in the memoranda you
cite. Moreover, I recall there was a sense by the DOD leadership that
this decision was taking too long. There was a sense throughout the
Government that another attack might be imminent and that information
known by Qatani--the person believed to be the 20th hijacker in the
September 11 attacks--might help to thwart such an attack. I do not
recall at this time seeing the ``four different opinions'' to which you
refer before I made my recommendation to the Secretary.
admiral dalton's legal review
19. Senator Kennedy. Mr. Haynes, who or what, specifically, gave
you the impression that there was not enough time to complete the
review that Admiral Dalton had begun?
Mr. Haynes. See responses to question 18 above and 30 below.
20. Senator Kennedy. Mr. Haynes, did anyone request or authorize,
or was anyone else otherwise involved in, your decision to halt Admiral
Dalton's review of the legality of the proposed interrogation
practices?
Mr. Haynes. I do not recall at this time specifically stopping such
a review, but do not dispute that I did so if Admiral Dalton remembers
this. See responses to question 12 above and question 24 below. In any
case, since the Secretary of Defense made his decision to approve a
subset of the requested techniques, a review antecedent to such a
decision would become unnecessary. Moreover, weeks later a much broader
and more inclusive review was chartered by the Secretary of Defense.
21. Senator Kennedy. Mr. Haynes, is there any other reason why you
stopped the review?
Mr. Haynes. I do not recall at this time specifically stopping such
a review, but do not dispute that I did so if Admiral Dalton remembers
this. Many decisions within DOD are made without an in-depth review by
the Joint Staff because such review is unnecessary, inappropriate, or
too time consuming. I recall that there was a sense by the DOD
leadership that this decision was taking too long. There was a sense
throughout the Government that another attack might be imminent and
that information known by certain detainees might help to thwart such
an attack. There had been a number of terrorist-related attacks and
significant intelligence reports during the timeframe of this decision,
which heightened the sense of urgency. I had decided to recommend
against three of the four category III techniques including the
techniques that in retrospect raised the most concerns. Accordingly, if
such a Joint Staff review was not completed, that would not be
extraordinary under the circumstances.
dismissal of the review of top military lawyers
22. Senator Kennedy. Mr. Haynes, at your confirmation hearings in
2003, you acknowledged that your responsibilities as General Counsel of
the DOD included acting as the ``final legal authority'' for the
Department. You were the last stop for legal advice that would reach
the Secretary of Defense. Given that there were differences in opinion
about whether the use of certain tactics would violate both civilian
and military law, even as between the opinions you acknowledge that you
read (those of Lieutenant Colonel Beaver and Generals Hill and
Dunlavey), do you think it would have been wise to seek and scrutinize
the competing views before sending your recommendation on permissible
techniques to Secretary Rumsfeld?
Mr. Haynes. I believed I understood in general the concerns
inherent in this decision and appropriately balanced those concerns in
conferring with Deputy Secretary Wolfowitz, Chairman Myers, Under
Secretary Feith, and then-Captain (now retired Rear Admiral) Dalton in
making my recommendation to the Secretary. During my time in DOD, I
believe I did take into consideration competing points of view on
issues including this one.
23. Senator Kennedy. Mr. Haynes, given the immense responsibility
you bore in acting as the final legal authority for decisions affecting
the entire DOD, do you see why many people find it so troubling that
you apparently dismissed the reservations of Army Generals and top
military lawyers on an important matter without explaining your
rationale to them or to your superiors?
Mr. Haynes. It is erroneous to say that I dismissed the
reservations of others. I understand that people have differences of
opinion. I understand how those who have the benefit of hindsight and
who disagree with policy judgments that were made by the administration
can be ``troubled'' by and continue to disagree with some decisions.
There are thousands of lawyers within the DOD. The views of these
lawyers are not uniform. They also have differences of opinion. It was
my practice, given the constraints of time, resources, and the need-to-
know, to listen and appropriately take into consideration the views of
civilian and military lawyers within DOD as well as the views of
commanders.
documentation of contacts
24. Senator Kennedy. Mr. Haynes, at last week's hearing, you said
that your office and Admiral Dalton's office enjoyed a ``close working
relationship.'' Yet you claim to be unaware of the memoranda on
interrogation that she, on General Myers's direction, solicited from
the Services. Do you have any documentation of the contacts made
between your office and Admiral Dalton's regarding interrogation
policy?
Mr. Haynes. I am no longer employed by the DOD and do not have such
documentation nor do I know which documents on these matters, if any,
may be available. I would refer you to the Department.
25. Senator Kennedy. Mr. Haynes, please indicate what documents--
including memoranda, letters, phone records, and e-mails--you believe
exist.
Mr. Haynes. See answer to question 24 above.
haynes memo
26. Senator Kennedy. Mr. Haynes, your memo from November 27, 2002,
states that you believed that the Under Secretary of Defense for
Policy, Douglas Feith, and General Myers joined your recommendation on
permissible interrogation techniques. Yet General Myers never initialed
your memorandum or, it seems, saw it at all. Why did you believe that
he had, and do you continue to stand by that claim?
Mr. Haynes. General Myers is an honorable man. I have the highest
respect for his integrity and his service to our country over decades,
including during these recent years. I am honored to have served with
him, and I continue to consider him a friend. I stand by my statements
regarding his role in the process.
correspondence with the white house
27. Senator Kennedy. Mr. Haynes, during your testimony last
Tuesday, you acknowledged that the following legal restrictions were
applicable during the time periods discussed at the hearing:
The categorical Federal prohibition on torture inside
or outside the United States under 8 U.S.C. 2340-2340A.
The requirement in Article 16 of the CAT that the
United States undertake to prohibit cruel, inhuman, and
degrading treatment.
The Uniform Code of Military Justice's (UCMJ)
prohibition on U.S. Armed Forces engaging in cruelty,
oppression, or maltreatment of prisoners (art. 93); assaulting
prisoners (art. 128); or communicating a threat to wrongfully
injure a detainee (art. 134).
The 2001 Presidential Order that all detainees be
treated ``humanely.''
Yet, if you had read the November 4, 2002, memorandum on
interrogation from Air Force Headquarters, you would have been informed
that several of the tactics you approved--even some in Category II--
clearly violated the President's policy on detainees. Virtually every
legal analyst who has considered the issue has found that many of the
techniques you approved violate all of the legal restrictions listed
above. Did you ever seek approval from the White House to effect a
deviation from its stated policy on humane treatment of detainees? Why
or why not?
Mr. Haynes. Many elements of this question are inaccurate. For
example, the Air Force memorandum to which you refer apparently
represents the view of one lawyer who had provided a preliminary
analysis and was not addressed to me. Second, I did not approve any
techniques; I, along with other advisors, recommended that certain
techniques be approved by the Secretary. Third, I believe that all of
the techniques that I recommended be approved were lawful if conducted
with the safeguards to be applied by U.S. Southern Command and the
joint task force at Guantanamo Bay Naval Station, Cuba and consistent
with the President's directive. Accordingly, the Department did not
seek a deviation from the President's policy.
28. Senator Kennedy. Mr. Haynes, did you ever seek or receive any
legal advice from the White House or from any other executive
department, such as the DOJ, that the prohibitions on torture in the
UCMJ, the CAT, or the criminal code may not apply to U.S. personnel in
certain circumstances? If so, would you please describe any such
contacts in detail?
Mr. Haynes. The testimonial guidelines from the DOD do not permit
me to discuss specific deliberative communications or the predecisional
advice, recommendations, or other positions taken by individuals or
entities. With the exception of the specific disclosures authorized by
the Department's guidance to me, the Department has not waived
deliberative process or attorney-client privileges. I became aware of
legal opinions from the DOJ from time to time, although I cannot recall
specifically when I became aware of those opinions. In early 2003, I
sought an opinion from the Office of Legal Counsel (OLC) regarding the
legal standards governing military interrogations of alien unlawful
combatants held outside the United States for the use of the DOD
working group. That opinion was provided to me on March 14, 2003 and
previously has been released publicly.
29. Senator Kennedy. Mr. Haynes, you testified that the law
enforcement community did not know how to deal with the impasse it had
encountered in interrogating Mohammad Al-Qatani. Before turning to the
JPRA and its SERE training program for recommendations on
interrogation, did you consult with actual law enforcement officials or
with the Federal Bureau of Investigation (FBI)?
Mr. Haynes. Without accepting your characterization of my testimony
or other assumptions inherent within this question, I nevertheless
would point out that the FBI and other law enforcement entities were
well-represented al Guantanamo Bay Naval Station, Cuba, during the
period in which Mr. Qatani was detained and questioned.
It is my understanding that numerous interrogation efforts over
many months in 2002 by the FBI and other law enforcement professionals,
as well as numerous interrogation efforts by intelligence professionals
using then-existing doctrine, were uniformly unsuccessful in eliciting
truthful information from Qatani, the intended 20th hijacker in the
September 11 attacks on the United States.
Indeed, it is my understanding that agents of the FBI questioned
Qatani at some substantial length--without success--before JTF-170
requested permission to use more aggressive techniques.
consideration of more aggressive interrogation techniques
30. Senator Kennedy. Mr. Haynes, would you please provide details
of how the decision was made to consider more aggressive techniques
than those which were initially used against Mr. Al-Qatani and others?
Mr. Haynes. Please see the transcript of the Senate Armed Services
Committee hearing conducted on June 17, 2008.
I can only answer with regard to my own recollection,
understanding, and belief. During the 2001 and 2002 timeframe, many
individuals throughout the Government were engaging in efforts to
collect information that might be useful during the war on terror
including lessons learned or new ideas relating to detainee operations
and interrogations. This was a new kind of conflict against a new kind
of enemy that presented complex and novel questions.
During the summer and fall of 2002, as the country approached the
1-year anniversary of the September 11 attack, there were increasing
indications from the world scene and intelligence reports that
additional attacks on America might be imminent. There was a sense in
Government, across all branches, that U.S. agencies like the DOJ (i.e.,
the FBI), the CIA and the DOD, in practice and as reflected in policy
decisions made in prior administrations, had been overly cautious and
constrained, and that those choices had contributed to the failure to
prevent the treacherous and deadly attack against America on September
11, 2001. This critique had been widely discussed and was not an
uncommon sentiment throughout the country, including in Congress.
As I have explained, my understanding is that Mr. Qatani had been
interrogated for some time using more traditional law enforcement
oriented or Army field manual interrogation techniques. My
understanding is that, consistent with the training he received from al
Qaeda, Mr. Qatani resisted providing useful information in response to
those techniques. My understanding is that, despite his status as the
intended 20th highjacker on the flights that struck America on
September 11, 2001, Mr. Qatani maintained that he was an ``innocent
falconer.'' My understanding is that those on the ground at Guantanamo,
who were responsible for collecting intelligence from the detainees,
were frustrated by Mr. Qatani's duplicity and lack of cooperation.
In this context, I understand that the command from Guantanamo
generated a list of additional techniques that they requested be
approved for use at Guantanamo Bay, Cuba. This request was reviewed by
command lawyers and command personnel, in accordance with normal
procedure. The local legal review conditioned its approval of the
requested techniques upon the existence of certain conditions including
legal, medical, behavioral science, and intelligence review as well as
local training of interrogators in approved methods of interrogation.
These additional techniques were to be implemented and supervised by
the local command and, so I and others understood, would be implemented
in accordance with those restrictions. This list of requested
techniques was forwarded to the Secretary for consideration.
Ultimately, based upon my and others' recommendations, the Secretary
approved a subset of those requested techniques for use at Guantanamo
Bay.
special handling of memos
31. Senator Kennedy. Mr. Haynes, Professor Philippe Sands, who
testified at a recent Senate Judiciary Committee hearing, has written
that the November 27, 2002, Haynes memorandum on interrogation
techniques received special handling. Professor Sands's research shows
that the memo was missing a buck slip that would have shown the memo's
circulation path, as is done in normal practice. Further, the legal
review by the DOD and the DOJ that had been requested by General Hill
in his October 25, 2002, memo to the Chairman was never documented. Did
your memo receive special handling by you or by others? Please explain.
Mr. Haynes. I am not familiar with this specific critique by Mr.
Sands. I do not believe my November 27, 2002 memo was handled in a way
that was inappropriate.
32. Senator Kennedy. Mr. Mora, based on your experience in military
legal practice, did this memo receive special handling, and, if so,
what does that suggest about the motivations of those involved?
Mr. Mora. I am not sufficiently knowledgeable of DOD or Joint Staff
document handling procedures or protocols to state with assurance that
the November 27, 2002, Haynes memorandum on interrogation received
special or unusual handling. I am aware that the Joint Staff did not
complete its review of General Hill's request, including the legal
review of the request, but I do not have enough knowledge of Joint
Staff procedures to say whether the intervention by Secretary
Rumsfeld's staff to assume control of the issue was unusual or usual.
Accordingly, I am unable to extrapolate a view on the motivations of
those involved based on this fact alone.
army field manual standards
33. Senator Kennedy. Mr. Mora, do you believe that the Army Field
Manual (AFM) standards on interrogation should apply to all U.S.
interrogations?
Mr. Mora. The baseline AFM standard on interrogations is the
standard that should apply to all interrogations conducted directly or
indirectly by all agencies of the United States Government or anyone
acting on its behalf. Simply stated, the United States does not apply
torture or cruel, inhuman, or degrading treatment to anyone in its
direct or indirect custody or control. Violation of this treatment
standard should constitute a criminal act under Federal statutes.
Whether the AFM (as opposed to its standards) is applied to non-DOD
agencies is a separate issue. Because the AFM is complex and geared to
the military, it is my view that non-DOD agencies, particularly in the
intelligence and law enforcement communities, should adopt separate
manuals that embody the AFM standard without reference to DOD-specific
procedures. However, if (for political or other reasons) the choice is
between applying the AFM to all agencies, on the one hand, or only to
DOD, on the other, then I would opt for applying it across the board to
all agencies.
______
Questions Submitted by Senator Hillary Rodham Clinton
office of legal council memo
34. Senator Clinton. Mr. Shiffrin, when did you recall first seeing
the August 1, 2002, OLC memorandum from Jay Bybee to Attorney General
Gonzales regarding the legality of interrogation methods?
Mr. Shiffrin. I never saw nor knew of the existence of this
memorandum during my service at the DOD. The only OLC memorandum on the
subject of interrogation I recall seeing was a draft opinion authored
by Deputy Assistant Attorney General John Yoo shared with a DOD lawyers
working group early in 2003. I also recall attending at least one
meeting of that working group at which John Yoo was present.
35. Senator Clinton. Mr. Shiffrin, did you discuss the memo with
other lawyers in the General Counsel's office at the DOD?
Mr. Shiffrin. I never discussed the Jay Bybee memorandum with other
lawyers in the DOD General Counsel's office, nor do I recall discussing
the draft John Yoo memorandum with those lawyers.
36. Senator Clinton. Mr. Haynes, do you recall when you received
the August 1, 2002, OLC memorandum from Jay Bybee to Attorney General
Gonzales regarding the legality of interrogation methods?
Mr. Haynes. I do not recall precisely when I received a copy of the
August 1, 2002 opinion interpreting 18 U.S.C. Sec. Sec. 2340-2340A. Too
much time has passed and I have now seen the memo in so many contexts
that I can no longer be certain when I saw it for the first time. I
cannot even recall whether I simply read the opinion al some point or
whether I received a copy of the opinion and, if so, who transmitted
the copy. I did, eventually, get a copy of that opinion, but I do not
remember when I first got it.
37. Senator Clinton. Mr. Haynes, do you recall who first sent you a
copy of that memorandum?
Mr. Haynes. Please see the answer to question 36 above.
conversation on waterboarding
38. Senator Clinton. Lieutenant Colonel Baumgartner, in his
testimony Dr. Ogrisseg recalls a conversation with you in which you
said that individuals from above were asking about the utility of using
the technique of waterboarding against the enemy. Do you recall having
a conversation with Dr. Ogrisseg specifically about the use of
waterboarding?
Lieutenant Colonel Baumgartner. I do recall a conversation on the
use of physical pressures in an offensive interrogation setting, as
opposed to SERE training, but I do not recall the specific pressures we
discussed.
39. Senator Clinton. Lieutenant Colonel Baumgartner, do you recall
which individuals from above you were referencing in that conversation?
Lieutenant Colonel Baumgartner. I was referring generally to the
Office of the Secretary of Defense (OSD) Office of the General Counsel.
As I testified, Mr. Shiffrin had contacted our office about obtaining
information.
july 26, 2002, memo
40. Senator Clinton. Lieutenant Colonel Baumgartner, in a July 26,
2002, memorandum you wrote that the purpose of the memorandum was to
``answer follow-on questions'' that resulted ``from the meeting between
JPRA and OSD Office of General Counsel (OGC) on 25 July 02.'' What can
you tell us about this meeting and the questions it produced?
Lieutenant Colonel Baumgartner. I recall answering this question
during my testimony. I was responded to OSD OGC requests for
information as a result of a few phone conversations with Mr. Schifrin
earlier in July. These led to the two memos written at request of OSD
OGC that were supplied to OGC at the end of July. Until the June 2008
hearing I had never met Mr. Shiffrin.
september 29, 2004, memo
41. Senator Clinton. Lieutenant Colonel Baumgartner, when did you
first see the memorandum dated September 29, 2004, from Major General
James N. Soligan regarding JPRA Mission Guidance?
Lieutenant Colonel Baumgartner. I believe I saw the memo the first
time when my lawyer and I went over documents supplied to us from OGC
that the staffers wanted to discuss during their interviews. As I
testified, I had retired from my position at JPRA in the spring 2003.
42. Senator Clinton. Lieutenant Colonel Baumgartner, do you have
any knowledge about the circumstances that led to the drafting of this
memorandum?
Lieutenant Colonel Baumgartner. No.
43. Senator Clinton. Lieutenant Colonel Baumgartner, prior to your
retirement, had any concerns been communicated to you from within the
Air Force or any other component of DOD about the use of SERE
techniques for offensive purposes in connection with DOD
interrogations?
Lieutenant Colonel Baumgartner. The use of physical pressures or
other techniques to interview detainees was discussed at length. Some
individuals had positive views and some had negative views. These
matters were of professional interest since many of the same techniques
were used to train our SERE students.
counter-resistance strategy meeting
44. Senator Clinton. Lieutenant Colonel Beaver, can you please
describe the chain of events that led to the creation of the October 2,
2002, counter-resistance strategy meeting?
Lieutenant Colonel Beaver. I organized meetings to discuss
interrogation issues and invited members from JTF-170 and CITF to
participate in the discussions. I held the meetings because I thought
it was important to have an exchange of ideas from all concerned and
not just members of the Intelligence Community. I established a ``non-
attribution policy'' to ensure that personnel could express their
opinions without fear of retribution. I started holding these ad hoc
meetings in August 2002 when the intelligence personnel first
approached me about the use of additional interrogation techniques.
45. Senator Clinton. Lieutenant Colonel Beaver, whose idea was it
to hold the meeting?
Lieutenant Colonel Beaver. See answer to question 44.
46. Senator Clinton. Lieutenant Colonel Beaver, who organized the
meeting?
Lieutenant Colonel Beaver. I organized the meeting.
47. Lieutenant Colonel Beaver, who invited officials from
intelligence agencies to the meeting?
Lieutenant Colonel Beaver. I don't recall exactly how this happened
but I invited personnel from JTF-170 and CITF. I encouraged these
organizations to bring anyone who could provide substantive input on
interrogation matters. Mr. Fredman just happened to be at Guantanamo
Bay, Cuba visiting his personnel the day this meeting was scheduled. I
invited him to attend. I thought the involvement of many different
personnel with different backgrounds would lead to the best discussion
of the issues--legal and policy. These were brain storming sessions and
the ideas expressed were not to be attributed to the individual but
just the group's discussion on that particular day. Without the
establishment of a non-attribution policy it was unlikely that
personnel would have felt comfortable expressing opinions about this
controversial topic.
48. Senator Clinton. Lieutenant Colonel Beaver, how many similar
meetings were held, and when?
Lieutenant Colonel Beaver. I don't recall but I believe I held
approximately three such meetings during the period August to October
2002.
49. Senator Clinton. Lieutenant Colonel Beaver, the minutes of the
counterresistance strategy meeting on October 2, 2002, include a
passage in which John Fredman is quoted as saying, ``In the past when
the International Committee of the Red Cross (ICRC) has made a big deal
about certain detainees, the DOD has moved them away from the attention
of ICRC.'' Are you familiar with any cases where this has happened, and
if so, can you describe the circumstances?
Lieutenant Colonel Beaver. I do not know. Regarding Guantanamo Bay,
Cuba, the ICRC had access to interview detainees privately. The ICRC
did not have a permanent presence on Guantanamo Bay, Cuba. ICRC
personnel usually were at Guantanamo for 6-week periods and would leave
for 6-8 weeks. When the ICRC returned to Guantanamo for a scheduled
visit, its personnel were provided an updated list of detainees, as
necessary, by the Commander, Military Police, so that the ICRC could
schedule its interviews with detainees. There were times when the
Commander, JTF-170 and later, JTF GTMO denied the ICRC access to a
particular detainee for a limited period of time for reasons of
operational security. These reasons were discussed with the ICRC
personnel by the Commander, JTF-170 and JTF GTMO. Sometimes, these
situations were documented by memorandum. These situations were rare.
discussion of interrogation methods
50. Senator Clinton. Mr. Haynes, when did you become aware that CIA
and Defense Intelligence Agency personnel were meeting with officers at
GTMO in October 2002 to discuss interrogation methods?
Mr. Haynes. I do not recall exactly when I first learned this
information. I would point out, however, that it was very widely known,
including among Members and staff of Congress, that all manner of
attention and resources were being devoted to the difficult challenge
of eliciting information from those detained at Guantanamo Bay Naval
Station, Cuba, throughout 2002. It also was known that many
representatives of many agencies were present at Guantanamo Bay Naval
Station, Cuba, and were actively participating in discussions regarding
matters pertaining to detainees, including interrogation.
51. Senator Clinton. Mr. Haynes, were you aware of those meetings
at the time they were taking place?
Mr. Haynes. Please see the answer to question 50 above.
armed forces memos
52. Senator Clinton. Mr. Haynes, you testified that you had not
seen the memoranda from the Air Force, Army, Navy, and Marine Corps
raising concerns about the proposed counter-resistance interrogation
techniques until a month before the hearing. However, were you aware at
any point earlier than that that those memoranda had been written?
Mr. Haynes. As I testified to at the June 17 hearing, I do not
remember seeing the memoranda from the various Service lawyers
concerning the JTF-170 request for additional interrogation techniques
in the fall of 2002. The first time I recall seeing these memoranda was
at my voluntary interview with the Senate Armed Services Committee on
April 25, 2008. Six years later, I am not sure whether I even knew such
memoranda existed prior to that time, although I cannot rule out that I
may have been told the memoranda existed at the time. I do not believe
I was provided with copies of these memos before the April Senate Armed
Services Committee interview, and I do not recall seeing them again
until the June 17 Senate Armed Services Committee hearing. I would note
that the memoranda were not addressed to me and that internal Joint
Staff staffing memoranda were frequently retained within the Joint
Staff.
53. Senator Clinton. Mr. Haynes, outside of your conversations with
former General Counsel Mora, were you aware at any point earlier than
that that any of the four Services held the views expressed in that
memorandum?
Mr. Haynes. I would not characterize the ``Services'' as holding a
view expressed in any particular memorandum. Individual lawyers from
the Services apparently expressed some preliminary views in memoranda
that were part of the Joint Staff staffing process and were not
addressed to me. It is very difficult to recall with precision the
timing of what I knew about any specific topic given the length of time
that has passed, the number of issues I dealt with as General Counsel,
and information concerning these topics that I have learned after the
fact. I did know that there were concerns regarding what techniques
were appropriate for detainee interrogations. It is not surprising that
there would be differences of opinion on such an issue. I took these
general concerns into consideration. I believe others did as well. Some
of the proposed additional techniques that were ultimately approved
were not particularly controversial. I recommended against the use of
the three category III techniques that would have raised the most
concerns. I recommended approval of other techniques that were less
controversial, but that nevertheless with which some people take issue.
In doing so, I attempted to strike a balance and accommodate competing
points of view while always adhering to applicable legal standards.
[Whereupon, at 5:15 p.m., the committee adjourned.]
THE AUTHORIZATION OF SURVIVAL, EVASION, RESISTANCE, AND ESCAPE (SERE)
TECHNIQUES FOR INTERROGATIONS IN IRAQ: PART II OF THE COMMITTEE'S
INQUIRY INTO THE TREATMENT OF THE DETAINEES IN U.S. CUSTODY
----------
THURSDAY, SEPTEMBER 25, 2008
U.S. Senate,
Committee on Armed Services,
Washington, DC.
The committee met, pursuant to notice, at 9:36 a.m. in room
SD-106, Dirksen Senate Office Building, Senator Carl Levin
(chairman) presiding.
Committee members present: Senators Levin, Dole, and Thune.
Committee staff members present: Richard D. DeBobes, staff
director; and Leah C. Brewer, nominations and hearings clerk.
Majority staff members present: Joseph M. Bryan,
professional staff member; Ilona R. Cohen, counsel; Mark R.
Jacobson, professional staff member; and Peter K. Levine,
general counsel.
Minority staff members present: Michael V. Kostiw,
Republican staff director; William M. Caniano, professional
staff member; and David M. Morriss, minority counsel.
Staff assistants present: Jessica L. Kingston, Brian F.
Sebold, and Breon N. Wells.
Committee members' assistants present: Jay Maroney,
assistant to Senator Kennedy; Elizabeth King, assistant to
Senator Reed; Caroline Tess, assistant to Senator Bill Nelson;
Gordon I. Peterson, assistant to Senator Webb; Mark J. Winter,
assistant to Senator Collins; Andi Fouberg and Jason Van Beek,
assistants to Senator Thune.
OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN
Chairman Levin. Good morning, everybody.
In June 2008, this committee held a hearing on the origins
of aggressive interrogation techniques used against detainees
in U.S. custody at Guantanamo Bay (GTMO), Abu Ghraib, and
elsewhere. At that hearing, the committee heard how techniques
such as stress positions, forced nudity, and sleep deprivation
used in military survival, evasion, resistance, and escape
(SERE) training to teach U.S. personnel to resist abusive
interrogations, and based in part on Chinese communist
techniques used during the Korean War to elicit false
confessions, were turned on their head and authorized at senior
levels of our government for use in interrogations of detainees
in U.S. custody.
Today's hearing will cover one way that those techniques
made their way to Iraq. While some have claimed that detainee
abuses at Abu Ghraib and elsewhere were simply the result of a
few bad apples acting on their own, at our June hearing we
heard that as far back as December 2001 senior Department of
Defense (DOD) officials, including General Counsel William
``Jim'' Haynes' office, sought out information from the Joint
Personnel Recovery Agency (JPRA), the DOD agency responsible
for overseeing SERE training. We heard how, when he later
received a request from GTMO to use techniques similar to those
used in SERE training, Mr. Haynes ignored strong concerns, from
the military Services themselves, that some of the techniques
were illegal. He cut short an effort by the legal counsel to
the Chairman of the Joint Chiefs of Staff to conduct a legal
and policy review of the techniques, and he recommended that
the Secretary of Defense approve most of them for use against
detainees.
In December 2002, Secretary Rumsfeld approved Mr. Haynes'
recommendation, sending the message that stripping detainees,
placing them in stress positions, and using dogs to intimidate
them was acceptable. Policies authorizing some of those same
abusive techniques in Afghanistan and Iraq followed the
Secretary's decision.
This morning, we'll hear how one military commander in Iraq
sought and obtained interrogation support from JPRA, the agency
whose expertise is in teaching soldiers to resist abusive
interrogations conducted by our enemies. We'll hear from
Colonel Steven Kleinman, the former Director of Intelligence at
JPRA's Personnel Recovery Academy, and we'll hear from retired
Colonel John Moulton II, former Commander of JPRA. Both
witnesses have been cooperative with the committee's inquiry.
We thank them for their appearance here today, and we thank
them for their service to our Nation.
Some new information and recently declassified documents
provide further insight into the extent to which SERE training
techniques influenced detainee interrogations conducted by U.S.
personnel and the role of senior officials in approving
policies authorizing the use of those techniques against
detainees.
At our June 17 hearing, we heard that the DOD General
Counsel's Office, led by Jim Haynes, sought advice from JPRA as
far back as December 2001. Specifically, in mid-December 2001,
Deputy General Counsel for Intelligence Richard Shiffrin
solicited information from JPRA on detainee exploitation. JPRA
chief of staff, Lieutenant Colonel Daniel Baumgartner,
responded to Mr. Shiffrin's call with a six-page fax. An
unclassified fax cover sheet addressed to Mr. Shiffrin and
dated December 17, 2001, states that the document provided
JPRA's ``spin on exploitation,'' and that if the General
Counsel's Office needed ``experts to facilitate this process,
the JPRA stood ready to assist.'' That December 2001 call from
Mr. Shiffrin appears to have been JPRA's first foray into what
are called offensive interrogation operations, but other
efforts soon followed.
On April 16, 2002, Dr. Bruce Jessen, who was then the
senior SERE psychologist at JPRA, circulated a draft
exploitation plan to the JPRA Commander, Colonel Randy Moulton,
and other senior officials at the agency. E-mails exchanged
between Dr. Jessen and Colonel Moulton suggest that JPRA
intended to seek approval of the exploitation plan.
Also in the spring of 2002, the Central Intelligence Agency
(CIA) sought approval from the National Security Council (NSC)
to begin an interrogation program for high-level al Qaeda
detainees. In a written response to questions dated September
12, 2008, which I sent to her in July 2008, Secretary of State
Condoleezza Rice, who was then the National Security Advisor to
the President, stated that in 2002 and 2003 there were meetings
at the White House where specific CIA interrogation techniques
were discussed.
I also asked Secretary Rice whether she attended meetings
where SERE training was discussed. Secretary Rice responded
that she recalled being told that U.S. military personnel were
subjected in training to ``physical and psychological
interrogation techniques,'' and her legal advisor at the time,
John Bellinger, said in his September 12, 2008, written answers
to my questions that he was present in meetings at the White
House or the Eisenhower Executive Office Building next door,
``at which SERE training was discussed.''
Secretary Rice also wrote, in her September 12 response
that John Yoo, Deputy Assistant Attorney General at the
Department of Justice's (DOJ) Office of Legal Counsel (OLC)
provided legal advice at several meetings that she attended,
and that the DOJ's advice on the program ``was being
coordinated by Counsel to the President Alberto Gonzales.'' She
wrote that CIA's interrogation program was reviewed by NSC
principals, and that Secretary of Defense Rumsfeld participated
in that review.
Secretary Rice said that when CIA sought approval of the
interrogation program, she asked Director of Central
Intelligence George Tenet to brief the NSC principals, and
asked Attorney General John Ashcroft to ``personally advise NSC
principals whether the program was lawful.''
Mr. Bellinger, her legal advisor, wrote us that he asked
CIA lawyers to seek legal advice, not only from the OLC, but
also from the criminal division of DOJ, which was headed at
that time by Michael Chertoff.
The meetings referred to by Secretary Rice and Mr.
Bellinger were not meetings between some low-level bureaucrats.
These are the most senior officials in the United States
Government, advisors to the President, meeting in the White
House.
Mr. Bellinger said that some of the legal analyses of
proposed interrogation techniques that were prepared by DOJ
referred to the ``psychological effects of military resistance
training,'' and that during that 2002-2003 timeframe he
``expressed concern that the proposed CIA interrogation
techniques comply with applicable U.S. law, including our
international obligations.''
At our June 17 hearing, the committee heard that, in July
2002, prompted by a request from DOD General Counsel Jim
Haynes, Deputy General Counsel for Intelligence Richard
Shiffrin called JPRA and asked for a list of physical and
psychological pressures used in SERE training. In response to
that request, on July 26, 2002, JPRA provided a list of
techniques that included stress positions, water boarding,
slapping, sleep disruption, and sensory deprivation. The JPRA
list also made reference to a section of the JPRA manual that
talks about ``coercive pressures'' including treating a person
like an animal. Mr. Shiffrin testified that part of the reason
that the General Counsel's Office sought the information was
its interest in reverse-engineering the techniques for use
offensively in detainee interrogations.
At that hearing a few months ago, we also heard that in
October 2002, Major General Michael Dunlavey, the Commander at
GTMO, requested authority to use some of the same SERE training
techniques that had been on the list which JPRA provided to Mr.
Haynes' office in July.
The military Services registered serious concerns about the
legality of some of the techniques in Major General Dunlavey's
request. Rear Admiral Jane Dalton, who was the legal counsel to
the Chairman of the Joint Chiefs of Staff, testified that she
initiated a broad-based legal and policy review of the request,
but, at Mr. Haynes' request, her review was cut short by
General Richard Myers, the Chairman of the Joint Chiefs of
Staff at that time.
Mr. Haynes subsequently recommended that Secretary of
Defense Donald Rumsfeld approve most of the techniques in Major
General Dunlavey's request. Again, on December 2, 2002,
Secretary Rumsfeld approved Mr. Haynes' recommendation
authorizing the use of aggressive interrogation techniques at
GTMO, including stress positions, instilling fear through the
use of dogs, and removal of clothing.
At the June 17 hearing, we heard from then-Navy General
Counsel Alberto Mora about concerns that he raised in December
2002 and January 2003 with Mr. Haynes about interrogations at
GTMO. We learned, from John Bellinger, the NSC Advisor, in his
September 12 response to my questions, that on several
occasions Deputy Assistant Attorney General Bruce Swartz raised
concerns with him about allegations of detainee abuse at GTMO.
Mr. Bellinger wrote to me that he, in turn, raised these
concerns ``on several occasions with DOD officials.''
In her September 12 response, Secretary Rice wrote that Mr.
Bellinger also advised her ``on a regular basis regarding
concerns and issues relating to DOD detention practices and
policies at GTMO.'' She wrote that, as a result, she convened
``a series of meetings of NSC principals in 2002 and 2003 to
discuss various issues and concerns relating to detainees in
the custody of DOD.''
At our last hearing, I described how aggressive techniques
authorized by the Secretary of Defense for use at GTMO made
their way to Afghanistan and Iraq. Many of these same
techniques were authorized by senior military commanders.
For instance, on September 14, 2003, Lieutenant General
Ricardo Sanchez, the Commander of the Combined Joint Task
Force-7 in Iraq, authorized the use of dogs, stress positions,
and other aggressive techniques in interrogations. In the
summer of 2003, the commander of a special mission unit task
force in Iraq went further. He contacted JPRA for help with
interrogations. Again, JPRA's expertise is in training soldiers
to resist abusive interrogations by enemies that refuse to
follow the Geneva Conventions. In response to the commander's
request and with explicit approval from the U.S. Joint Forces
Command (JFCOM), JPRA's higher headquarters, JPRA sent an
interrogation support team to Iraq. Colonel Kleinman, who is
here with us this morning, was the team leader during that
visit.
Here's some of what we know about the Iraq trip from
unclassified or declassified sources:
The task force's request for JPRA ``interrogator support''
was submitted through official channels, and was approved by
JFCOM on August 27, 2003. JPRA put together a three-person team
to support the request.
On September 4, 2003, just as the JPRA team was arriving in
Iraq, Lieutenant General Robert Wagner, the Deputy Commander of
JFCOM, which is JPRA's senior command, sent an e-mail to
Colonel Moulton, the JPRA Commander, about the trip, asking,
``What in JPRA's charter places JPRA in the business of
intelligence collection?''
Again, just a week earlier, JFCOM had approved the trip.
Colonel Moulton replied to Lieutenant General Wagner's e-mail
that ``there is nothing in our charter or elsewhere that points
us toward the offensive side of captivity conduct,'' and that
JPRA was ``well aware of the problems associated with crossing
the Rubicon into intelligence collection (or anything close).''
A second e-mail from Colonel Moulton, however, sent on
September 9, 2003, to the JFCOM Director of Operations stated
that ``recent history, to include discussions and training with
the Defense Intelligence Agency (DIA), U.S. Special Operations
Command (SOCOM), and CIA shows that no DOD entity has a firm
grasp on any comprehensive approach to strategic debriefing/
interrogation. Our subject-matter experts and certain SERE
psychologists currently have the most knowledge and depth
within DOD on the captivity environment and exploitation.''
While Colonel Moulton's e-mail said that JPRA was ``not
looking to expand our involvement to active participation,'' he
noted that JPRA's ``potential participation is predicated
solely on the request of the combatant commander.''
A recently declassified summary of a 2005 interview with
Colonel Moulton, and Colonel Moulton's prepared statement for
today's hearing, both describe conversations which he had with
Colonel Kleinman while the JPRA team was in Iraq. Colonel
Moulton acknowledges telling Colonel Kleinman that the JPRA
team was authorized to participate in interrogations using SERE
training techniques. Colonel Moulton said he granted that
authority only after seeking approval from JFCOM.
Colonel Kleinman has said he objected to the use of SERE
training techniques during the trip, and that he told Colonel
Moulton both that those techniques were inconsistent with the
Geneva Conventions and that granting authority for the team to
use them was an illegal order.
This morning, we will hear both Colonel Moulton's and
Colonel Kleinman's account of those conversations and events
that occurred during that trip.
Toward the end of their trip, members of the JPRA team
produced a draft concept of operations (CONOP) for the
interrogation of detainees. E-mails from Captain Daniel
Donovan, JFCOM Staff Judge Advocate, reveal some of what the
CONOP proposed and what JPRA thought was acceptable.
Captain Donovan, in a September 26, 2003, e-mail to Colonel
Moulton and others at JPRA, raised a concern that techniques
proposed in the CONOP would ``not be legal under the Geneva
Conventions.'' A few days later, in an e-mail to JFCOM
leadership, Captain Donovan reiterated his concern that a
``number of the interrogation techniques suggested by JPRA in
their draft CONOP are highly aggressive, such as the water
board, and it probably goes without saying that if JPRA is to
include such techniques in a CONOP they prepare for an
operational unit in another area of responsibility, that they
need to be damn sure they're appropriate in both a legal and
policy sense.''
Captain Donovan added, ``JPRA got its list of techniques
from a DOD General Counsel working group report dated March 6,
2003, so I'm sure that they felt that their list might have
already been `blessed by Pentagon lawyers.' ''
The working group referred to by Captain Donovan's e-mail
had been established at Secretary Rumsfeld's direction in
January 2003. As the committee heard at our June 17 hearing,
over the strong objections of senior military lawyers, the
working group relied on a March 14, 2003, legal opinion from
DOJ's OLC written by John Yoo. The working group's final
report, issued on April 4, 2003, recommended several aggressive
techniques, including removal of clothing, prolonged standing,
sleep deprivation, dietary manipulation, hooding, increased
anxiety through the use of a detainee's aversions, like dogs,
and face and stomach slaps. While the final working group
report did not mention SERE, many of the techniques it
recommended were strikingly similar to techniques used in
JPRA's SERE training.
Captain Donovan's e-mail said that the techniques which
were approved by Secretary Rumsfeld for use at GTMO in April
2003 were not the same as those in the working group report,
and said that what the Secretary had approved was more
restrictive. As we heard at our June 17 hearing, Secretary
Rumsfeld's April 2003 memo to the U.S. Southern Command
(SOUTHCOM), GTMO's higher headquarters, was silent on most of
the techniques in the working group's report. The Secretary's
memo said that if techniques beyond the 24 that he specifically
authorized were required, SOUTHCOM should ``provide a written
request describing the proposed technique, recommending
safeguards and the rationale for applying it with an identified
detainee.'' We heard at our last hearing that one such request
arrived at the Pentagon just a few months later and was
approved by the Secretary.
Secretary of Defense Rumsfeld's original December 2, 2002,
authorization of aggressive interrogation techniques, including
stress positions, use of dogs, and removing detainees'
clothing, and his working group's April 2003 recommendation of
many other additional aggressive techniques conveyed the
message that senior officials felt that the physical pressures
and degrading tactics were appropriate for use during
interrogations of detainees in U.S. military custody. Many of
the aggressive techniques that the Secretary approved in
December 2002, including the three that I just mentioned--
stripping detainees, putting them in stress positions, and
using dogs to intimidate them--were used against detainees at
Abu Ghraib.
However, even the public disclosure of abuses at Abu Ghraib
apparently did not eliminate interest in using SERE specialists
to provide advice on interrogations. The DOD Inspector General
(IG) said in its 2006 report that it was only after a request
to send a JPRA team to Afghanistan in 2004 that JFCOM finally
issued guidance that the use of SERE for offensive purposes
lies outside the roles and responsibilities of JPRA.
I see that there are no other Senators here for an opening
statement so I'm going to call first on Colonel Moulton.
If you would provide us with your statement. Again, thank
you so much for being with us and for your cooperation with
this committee.
STATEMENT OF COL. JOHN R. MOULTON II, USAF (RET.), FORMER
COMMANDER, JOINT PERSONNEL RECOVERY AGENCY
Colonel Moulton. Yes, sir. Mr. Chairman, thank you for
allowing me to appear before your committee today. The issue of
treatment of detainees in U.S. custody is a critically
important matter, and I'm pleased to provide information and
testimony relative to the questions raised in the memo to me,
dated September 12.
In accordance with the committee's specific request, I have
written testimony addressing my recollections of the events
cited in that memo.
I do want to take this opportunity to say that I've read
some of Colonel Kleinman's previous testimony and some of the
papers he had written, and I feel that we are pretty much of
one mind when it comes to the treatment of detainees in U.S.
custody. I commend his service and contribution to this
important effort.
I'd like to provide a brief background on my service to the
United States, focusing particularly on my time and efforts at
JPRA.
I graduated from the United States Air Force Academy in
1978 and spent the first 10 years of my career flying
operational jobs with WC-130s and rescue HC-130s. From 1989 to
2000, I served in various command and staff positions, twice at
the Air Staff. I was a research fellow at Georgetown
University, where I taught American defense policy. I was also
a legislative liaison for SOCOM and held the positions of
director of operations and commander for operational squadrons.
In July 2000, I was assigned as the Deputy Commander of
JPRA, and assumed command in March 2001. I served as commander
until September 2004, and retired in December of that year.
JPRA's mission is to shape personnel recovery for DOD
interagency and partner nations to enable commanders, forces,
and individuals to effectively accomplish their personnel
recovery responsibilities. As part of that mission, JPRA
provides training to DOD personnel on critical tasks essential
to SERE. JPRA's mission has never been to conduct
interrogations of captured personnel, nor were the JPRA
personnel that I commanded trained to do that mission.
Commanding the professional men and women of JPRA was,
without a doubt, the most rewarding assignment of my career.
The value of the myriad services performed by that agency is
unparalleled and is only superceded by the commitment of the
men and women working there.
Upon assuming command, I had three primary goals for my
command tenure. The first of those was to restructure the
organization to mirror that of other joint organizations. This
restructuring included placing uniformed personnel in charge of
directorates which had previously been headed by government
civilians. I determined this restructuring to be critical to
the accountability associated with our many varied missions.
My second priority was to create the Personnel Recovery
Academy using our training facilities at Fairchild Air Force
Base as the nucleus for that. I also wanted to create a
uniformed command position equivalent to that of squadron
commander to oversee their programs and to report directly to
me.
Due to the geographic separation and the different missions
from the JPRA headquarters, I determined it was necessary to
have full-time oversight by a uniformed officer. That change
had nothing to do with any old perceptions I had of the
personnel working at Fairchild Air Force Base. I believed it
would provide them with more unit identity and cohesion.
My third priority was to create a core captivity curriculum
that would bring all the Service survival schools together with
one standardized approach to SERE training.
After the events of September 11, 2001, JPRA refocused its
attention on the training curriculum and personnel recovery
planning essential to support the warfighter in a new and
ambiguous operating environment. With operations in Afghanistan
and, later, Iraq, we immediately became focused on developing
new area survival and evasion charts, ``pointy-talkies,'' which
are cards that help us communicate with indigenous, mostly
illiterate personnel, and also to develop a survival crib sheet
for deploying soldiers, sailors, and airmen who had not
previously had SERE training.
Permission was especially difficult during this time,
because we were faced, for the first time in history, with a
conflict where our Armed Forces were in an operational
environment where they could find themselves detained as either
prisoners of war (POWs), peacetime governmental detainees, or
hostages. Each of these situations requires the detainee to
comport himself differently, and there are different legal
ramifications with each scenario and how U.S. personnel are
trained to interact with their captors.
Synthesizing these requirements into something that junior
servicemembers focused on their primary mission could easily
understand and retain was our most critical task. The
requirement resulted in a significant increase in deployment
operations tempo for JPRA to ensure that all forces were
trained properly.
As Commander of JPRA, I reported directly to the Commander
of JFCOM. On a day-to-day basis, I worked through the chief of
staff or the director of operations, the J-3.
As had been my direction when I had assumed command of
JPRA, all requests for support would be forwarded through
JFCOM, who would then task JPRA after their review and
approval. The JFCOM J-3 had an officer and a J-35 who was
directly responsible for dealing with the requests from other
combatant commands and Services that the JPRA support.
While JPRA routinely provided support teams in theater to
conduct SERE training and also supported other DOD
organizations with subject-matter experts on captivity
psychology and counter-resistance, prior to September 2003 I'm
not aware of any other direct support to interrogation
operations in the field.
Throughout my tenure, I had discussions with JFCOM
leadership about our mission and my reservations about
extending support to interrogation operations. I believe there
is a consensus among JFCOM leadership and my staff that JPRA as
an organization was limited by its authorities. There was also
a common agreement that the only personnel within DOD with
subject-matter expertise on captivity psychology and counter-
resistance were the training instructors assigned to JPRA in
the Service SERE schools.
The dilemma we faced was how to provide support in these
areas, while not extending past JPRA's charter. My
recommendation to senior leadership at JFCOM, as early as
February 2002, was to provide support requests by having
individual Service subject-matter experts. This approach was
endorsed by JFCOM and followed throughout my tenure and
command.
I believe now, as I did during these events, that JPRA
should not be in the business of conducting interrogations or
interrogator training. Our personnel were not trained
interrogators, and JPRA is not organized, trained, and equipped
to perform that mission. However, the unique knowledge and
expertise of the JPRA professionals did provide invaluable
support for DOD's intelligence collection efforts. At the time,
the confluence of events, especially the infusion of unlawful
combatants into the conflict, the lack of clear guidance on
their legal status in written operating procedures, and the
lack of knowledge within the Intelligence Community about the
psychology of captivity required tough decisions to be made. I
believe that JPRA's efforts expanded the knowledge of captivity
psychology, which led to improvements in the collection of
actual human intelligence.
I appreciate the opportunity to speak today, and look
forward to answering any questions you may have.
[The prepared statement of Colonel Moulton follows:]
Prepared Statement Col. John R. Moulton II (Ret.), USAF
Mr. Chairman, distinguished members of the committee. Thank you for
allowing me to appear before your committee today. The issue of
treatment of detainees in U.S. custody is a critically important matter
and I am pleased to provide information and testimony relative to the
questions raised in your memo to me dated September 12, 2008.
In accordance with the committee's specific request, my written
testimony today addresses my recollections of: (1) Joint Personnel
Recovery Agency (JPRA) support to the Special Mission Unit Task Force
(SMU TF) operations, including the September 2003 assistance visit to
the SMU TF; (2) the purpose of the September 2003 visit; (3) any
discussions I had with the SMU TF Commander relative to that visit; (4)
any discussions I had with the JPRA Team Chief during that visit; (5)
authorities granted to the JPRA team during that visit; and (6) any
discussions I had with the U.S. Joint Forces Command (JFCOM) relative
to the September 2003 visit to the SMU TF and other JPRA assistance to
interrogation operations.
Before I address these specific questions, I would like to provide
a brief background on my service in the United States Air Force,
particularly focusing on my time and efforts at JPRA. I graduated from
the United States Air Force Academy in 1978 and spent the first 10
years of my career in various operational positions as a navigator in
weather WC-130s and search and rescue HC-130s. From 1989 to 2000, I
served in various command and staff positions to include two
assignments to Headquarters, U.S. Air Force, National Defense Fellow at
Georgetown University, legislative liaison for the U.S. Special
Operations Command, and Director of Operations and Commander of
Operational squadrons. In July 2000, I was assigned as the Deputy
Commander of JPRA and assumed command in March 2001. I served as the
Commander of JPRA until September 2004 and retired from Active Duty in
December 2004.
JPRA's mission is to shape Personnel Recovery (PR) for the DOD,
interagency, and partner nations and to enable commanders, forces, and
individuals, to effectively accomplish their Personnel Recovery
responsibilities. As part of that mission JPRA provides training to DOD
personnel on critical tasks essential to survive, evade, resist, and
escape captivity. JPRA's mission has never been to conduct
interrogations of captured personnel nor were the JPRA personnel that I
commanded trained to do that mission.
Commanding the professional men and women of JPRA was without a
doubt the most rewarding assignment of my career. The value of the
myriad services performed by that agency in support of the Department
of Defense (DOD) is dwarfed only by the commitment of the men and women
working there. Upon assuming command I had three primary goals for my
command tenure. First I wanted to restructure the organization to
mirror that of other joint commands. This restructuring included
placing uniformed personnel in charge of directorates, most of which
were previously headed by government civilians. I determined this
restructuring to be critical to the accountability associated with our
many varied missions. My second priority was to create a Personnel
Recovery Academy (PRA) using our training facilities at Fairchild Air
Force Base (AFB), WA, as the nucleus and to create a uniformed command
position equivalent to that of a squadron commander to oversee their
programs and report directly to me. Due to geographic separation and
difference in mission from the JPRA headquarters, I determined it was
necessary to have full-time oversight by a uniformed officer. This
change had nothing to do with any ill perceptions of the personnel
working at Fairchild AFB, but rather I believed it would provide them
with more unit identity and cohesion. My third priority was to create a
core captivity curriculum that would bring all the service survival
schools together with one standardized approach to survival, evasion,
resistance, and escape (SERE) training.
After the events of September 11, 2001, JPRA refocused its
attention on the training curriculum and personnel recovery planning
essential to support the warfighter in new and ambiguous operating
environments. With operations in Afghanistan (and again later for Iraq)
we immediately became focused on developing new area survival and
evasion charts, ``pointy-talkies'' (cards that allowed DOD personnel to
communicate with indigenous personnel), and trying to develop a
survival crib sheet for deploying soldiers, sailors, and airmen who had
not previously received any SERE training.
JPRA's mission was especially difficult during this time because we
were faced for the first time in the history of the United States with
a conflict where our Armed Forces were in an operational environment
where they could find themselves detained as prisoners of war,
peacetime governmental detainees, or hostages. Each of these situations
requires the detainee to comport himself differently. There are
different legal ramifications with each scenario and how U.S. personnel
are trained to interact with their captors is also different.
Synthesizing these requirements into something junior servicemembers--
focused on their primary missions--could easily understand and retain
was our most critical task. This requirement resulted in a significant
increase deployment operations tempo for JPRA to ensure all forces were
trained properly.
As the JPRA Commander, I reported directly to Commander, JFCOM. On
a daily basis, I worked with the Command primarily through the Chief of
Staff and the Director of Operations (J-3). As had been my direction to
JPRA staff upon assuming command, all requests for JPRA assistance were
required to be forwarded through JFCOM who would then task JPRA after
their review and approval. The JFCOM J-3 had an officer in the J-35 who
was directly responsible for dealing with the requests from other
combatant commanders and the Services for JPRA support.
While JPRA routinely provided support teams in theater to conduct
SERE training and also supported other DOD organizations with subject
matter experts (SMEs) on captivity psychology and counterresistance
prior to September 2003, I am not aware of any other direct support to
interrogation operations in the field. Throughout my tenure, I had
discussions with JFCOM leadership about our mission and my reservations
about extending support to interrogation operations, I believe there
was consensus among JFCOM leadership and my staff that JPRA as an
organization that was limited by its authorities. There was also common
agreement that the only personnel within DOD with subject matter
expertise on captivity psychology and counter-resistance were the
training instructors assigned to JPRA and the Service SERE schools. The
dilemma we faced was how to provide support on these areas while not
extending past JPRA's charter. My recommendation to senior leadership
at JFCOM as early as February 2002 was to support requests by having
individuals serve as SMEs. This approach was endorsed by JFCOM and
followed throughout my tenure in command.
The request for support from the SMU TF came in late July or early
August 2003 when I received a call from the TF Commander. We had served
together off and on during our careers. The purpose of his call was to
enlist JPRA's assistance in identifying resistance techniques being
used by some of the high value target detainees they were capturing. I
relayed to the TF commander that if he wanted assistance he would have
to request SME support through the proper channels. In this case the
request went through the U.S. Central Command chain of command, to the
Joint Staff, and then down through JFCOM to JPRA.
After receiving the call from the SMU TF Commander, I notified the
JFCOM J-3. In the follow-up e-mail to the J-3, dated September 9, 2003.
I reiterated and clarified my intent not to pursue an expansive JPRA
role (to avoid the risk of mission creep). When the request for support
came down from JFCOM, we identified a three person team to deploy. I
specifically asked by name for Lieutenant Colonel Kleinman to lead the
group so I would have an experienced, uniformed officer on the ground.
JFCOM leadership was briefed and after their approval the team
departed.
At some point during the trip, I was called by Lieutenant Colonel
Kleinman on my secure phone at my personal residence. Lieutenant
Colonel Kleinman relayed that the SMU TF wanted training on
counterresistance measures, something we had not planned for. I asked
Lieutenant Colonel Kleinman what the legal status of the detainees was
and what techniques the TF wanted to see demonstrated. I was told that
the detainees were designated unlawful combatants and that the
techniques being requested were ones used by JPRA personnel during SERE
training. Lieutenant Colonel Kleinman did mention he had some
reservations and I asked him to talk with the TF legal adviser. I then
discussed the request with JFCOM senior leadership. The decision was
made to have Lieutenant Colonel Kleinman check again with the SMU TF
legal advisor and support, if the request for training was given the
okay.
Later, I received another request from Lieutenant Colonel Kleinman.
He said the TF was now asking for the JPRA instructors to demonstrate
the counterresistance techniques with a detainee. Again Lieutenant
Colonel Kleinman expressed his concern. I again contacted JFCOM
leadership and relayed the request and Lieutenant Colonel Kleinman's
concerns. The JFCOM decision was to permit the demonstrations to
proceed, but only after coordinating with the TF legal adviser. I
relayed this to Lieutenant Colonel Kleinman who again voiced his
concern. I relayed the directions from JFCOM and said something to the
effect that he was there on the ground and if he thought it was going
beyond what he felt comfortable with that he could make the call on
whether to proceed.
At some point during the demonstration, Lieutenant Colonel Kleinman
did intercede and stopped it. Shortly thereafter, the JPRA personnel
were sent back home. I called the TF commander back to inquire about
the support provided by my team and he indicated the team had delivered
to his expectations and that he was satisfied with the support he got.
I asked for and got after action reports from all the team members.
While recollections differed, I got the sense from these reports that
the TF Director of Intelligence (J-2) desired more participation from
the deployed personnel than they were prepared to provide and the
mission was terminated. I had no further contact with the TF commander
on this matter after I got his feedback.
I do not recall providing a formal debriefing to JFCOM leadership,
but the trip was covered in my weekly classified updates to JFCOM
Commander. The after action reports were forwarded to JFCOM through
secure channels to the J-35.
I believe now, as I did during these events, that JPRA should not
be in the business of conducting interrogations or interrogator
training. Our personnel were not trained interrogators and JPRA is not
organized, manned, or equipped to perform that mission. However, the
unique knowledge and expertise of JPRA professionals did provide
invaluable support to DOD's intelligence collection efforts. At the
time, the confluence of events, especially the infusion of unlawful
combatants into the conflict, the lack of clear guidance on their legal
status and written operating procedures, and the lack of knowledge
within the Intelligence Community about the psychology of captivity
required tough decisions to be made. I believe that JPRA's efforts
expanded the knowledge of captivity psychology which led to
improvements in the collection of actionable human intelligence. I
appreciate the opportunity to speak with you today and look forward to
answering any questions you may have.
Chairman Levin. Thank you very much, Colonel. We'll put
your entire statement in the record. I noted that you shortened
it.
Colonel Moulton. Yes, sir.
Chairman Levin. If there's no objection, we'll put the
entire statement in the record.
Colonel Moulton. Yes, sir.
Chairman Levin. Colonel Kleinman?
STATEMENT OF COL. STEVEN M. KLEINMAN, USAFR, FORMER DIRECTOR OF
INTELLIGENCE, PERSONNEL RECOVERY ACADEMY, JOINT PERSONNEL
RECOVERY AGENCY
Colonel Kleinman. Mr. Chairman, it's a pleasure and
certainly an honor to appear before you today, and I thank you
for the invitation.
The military resume that I submitted along with my written
statement, I offer up as the bona fides for a career that was
involved with human intelligence, interrogation, special
survival training, and special operations, and I hope that
supports the credibility of the statements and observations
that I make today.
Clearly, of particular interest to the committee are the
events that transpired in conjunction with the deployment of
the JPRA team in September 2003 to Iraq, but I must admit that
the problematic event was just symptomatic of much larger
issues that transcend any single command. But, I think, in
sifting through the answer to a single question, we might
uncover some very surprising and useful truths. The question
is: Why did the special operations community feel that it was
necessary and appropriate to request interrogation support from
a command that you've pointed out has a mission of not
interrogation, but providing resistance to interrogation
training?
To adequately address that question, I need to detail
several contributing events that began after the horrific
attacks on September 11 and our invasion of Iraq in 2003.
The Armed Forces and intelligence services of this country
were shifting their focus from a conventional strategic threat
to one defined as asymmetric and operational. But, much about
that new threat was unavailable through our strength in
technical intelligence. Surprising to most, that gap was filled
by the interrogation of detainees. We are now literally face to
face with an enemy that most described as unlike any we'd ever
encountered. A stereotyped caricature of this enemy soon
emerged and it did not take long for us to decide that special
treatment, including the so-called enhanced interrogation
methods, were required, even though those were prohibited by
the standards of conduct that we previously adhered to.
From the beginning, there was incredible pressure placed on
interrogators to elicit actionable information--information
that operators can act upon within a 24- to 48-hour cycle--from
almost every individual that we took into custody. Some of
these detainees were complicit, and some were innocent. Some
were truly knowledgeable, and some were truly clueless.
Nonetheless, we erred in simply pressing interrogation and
interrogators beyond the edge of the envelope. As a result,
interrogation was no longer an intelligence collection method;
rather, in many cases it had morphed into a form of punishment
for those who would not cooperate.
We sent very young, very inexperienced interrogators to
collect this intelligence. We asked them to do that in an
asymmetric battlespace, even though they were trained for a
Cold War tactical model. We matched them against detainees
about whom we know so little. So, we should not be surprised
that the results were less than optimal.
When this proved ineffective in producing the type of
actionable intelligence that senior leaders required, other
viable strategies, such as those I hope to be able to outline
today, were ignored or rejected as irrelevant in this new
battlespace in the 21st century. Instead, we opted to do more
of the same, only now we have ratcheted up the pressure, and in
some cases to an alarming degree.
We had the choice of getting smarter or getting tougher.
Unfortunately, we chose the latter. Nonetheless, the
intelligence shortfall continued, and operational commanders
demanded more intelligence.
The resourceful special operations community, to which I'm
assigned right now, then sought solutions outside the
Intelligence Community. With clear memories of their
experiences during intensive resistance to interrogation
exercises that are a key part of SERE training, their search
led them to the cadre of very talented survival instructors who
demonstrated exceptional skill in conducting interrogations
using the high pressure, often threatening tactic deployed by
countries that were not signatories to the Geneva Convention.
These special operators were understandably impressed by the
ability of these instructors to compel compliance with both
force and subterfuge.
To the nonintelligence officer, the transfer of SERE
methods from the training environment to real-world operations
seemed a logical option. However, several critical factors were
overlooked. First, many of the methods used in SERE training
are based on what was once known as a communist interrogation
model; a system designed to physically and psychologically
debilitate a person, a detainee, as a means of gaining
compliance. Second, the model's primary objective was to compel
a prisoner to generate propaganda, not provide intelligence.
Third, it was expressly designed to mirror a program whose
methods were considered in the west as violations of the Geneva
Convention.
The problems with employing SERE techniques in the
interrogation of detainees did not stop there. I want to
emphasize, Mr. Chairman, that the survival instructors are some
of the most dedicated professionals in the Armed Forces. Their
tireless work is in support of a single mission, and that is to
help others return with honor. But, I'd be remiss if I did not
make abundantly clear that they are not interrogators. While
there's much in common between interrogation and teaching
resistance to interrogation, there are very profound
differences. Survival instructors, for example, operate in the
domestic environment with students who share a language and a
culture. In contrast, interrogators operate worldwide,
interacting with foreign nationals, often across a very
substantial cultural and linguistic divide. If questions arise
about a student's veracity in the course of role play, the
survival instructor need only call the student's unit of
assignment to verify the information. Clearly, that's not an
option for an interrogator for whom detecting deception is a
critical skill.
While resistance to interrogation role play is limited in
duration, frequency, and scope, interrogations of custodial
detainees may last hours and continue over a span of months.
Finally, the survival instructor's focus is on the
performance of the student, not collecting information. An
interrogator must doggedly pursue and record every detail of
intelligence information detainees possess. With little
expertise in interrogation operations at the senior level--and
it should be noted that the CIA did not get involved in
interrogation until after September 11--the legal, operational,
and moral factors that should govern the employment of SERE
methods went largely unrecognized. There were very few internal
safeguards that should have maintained a clear separation
between these two activities.
It is this lack of expertise at the senior level that
provides the final piece of the puzzle. As an experienced
interrogator and a former director of the Air Force Combat
Interrogation Course, I am acutely aware of how the laws of
armed conflict apply to interrogation of detainees. Therefore,
I was stunned upon my return from Iraq at the number of senior
officers who challenged my on-the-ground assessment of the
unlawful interrogation methods with the argument that
psychologically and physically punishing interrogations are
precisely what they would expect had they found themselves
captured. In a sense, they deferred the standards to the enemy.
In summary, the following are the key factors contributing
to our current state of affairs:
Number one, our approach to interrogation has failed to
keep pace with our understanding of the operational environment
or with knowledge of the behavioral sciences. In addition,
interrogation continues to be viewed as a simple task that we
can assign to our most junior military personnel.
Number two, pressed to find a solution to the critical
intelligence shortfall, special operators followed their
professional instincts. They could not wait for the
intelligence community to catch up.
Number three, the lack of expertise at the senior level in
managing and conducting interrogation was a single point of
failure that facilitated the introduction of SERE techniques
into the repertoire of allowable interrogation methods. As a
result, adversaries and allies alike have accused this Nation
of gross violations of the Geneva Convention and of violating
the basic human rights of those in detention. The geostrategic
consequences are likely to last decades.
Mr. Chairman, I'm hopeful that we might leverage our
collective wisdom, expertise, and sense of justice to finally
take steps necessary to revisit and refine our policies on the
handling and interrogation of detainees in a manner that
reflects the best of America's core values. Having had the
honor of interviewing a number of World War II-era
interrogators who set the standard for both operational
effectiveness and propriety, I can tell you this; members of
that great generation are watching us carefully. We walk in
their shadows. Let us give them one more reason to be proud of
their country.
Thank you, Mr. Chairman.
[The prepared statement of Colonel Kleinman follows:]
Prepared Statement by Col. Steven M. Kleinman, USAFR
Mr. Chairman and distinguished members of the committee, it is an
honor to appear before you today.
The military resume submitted to the committee along with my
written statement recounts a career invested in human intelligence,
interrogation, special survival training, and special operations. I
offer that as bona fides for the observations and recommendations I
will provide today.
Of particular interest to the committee are the actions that
transpired in conjunction with the deployment of the Joint Personnel
Recovery Agency (JPRA) team to Baghdad in September 2003. That
problematic event was, in my view, symptomatic of much larger issues
that transcend any single command. However, in sifting through the
answer to a single question, we might uncover some surprising truths:
Why did the special operations community find it necessary--
and appropriate--to request interrogation support from an
organization whose mission was, and is, to teach resistance to
interrogation?
To adequately address this question, I need to outline a series of
contributing events that began shortly after the horrific attacks of
September 11, 2001, and the invasion of Iraq in March 2003. At that
time, the Nation's Armed Forces and intelligence services were
struggling to shift the focus from a conventional and strategic threat
to one defined as asymmetric and operational. Much about this new
adversary, however, could not be gathered through our edge in technical
intelligence. In a surprise to many, this critical gap was filled by
the interrogation of detainees.
We were literally face-to-face with an enemy described as unlike
any we had previously encountered. A stereotyped caricature of our
adversary soon emerged and it did not take long for us to determine
that he required special treatment, including so-called enhanced
interrogation techniques that were prohibited under the standards of
conduct we hewed to in the past.
From the beginning, there was incredible pressure on interrogators
to elicit actionable intelligence from practically every individual we
took into custody. Some of these detainees were complicit, others
innocent; some were knowledgeable, some truly clueless. In far too many
cases, we simply erred in pressing interrogation and interrogators
beyond the edge of the envelope. As a result, interrogation was no
longer an intelligence collection method; rather, it had morphed into a
form of punishment for those who wouldn't cooperate.
We sent very young and inexperienced interrogators to collect
intelligence. We tasked them to do so in an asymmetric battlespace
using a Cold War tactical interrogation model. We matched them against
detainees about whom we seemed to know so little. Should we have then
been surprised with less than optimal results?
When this approach proved ineffective in producing the type of
actionable intelligence required by senior leaders, other viable
strategies--such as those I'll describe in a moment--were ignored or
rejected as irrelevant in the ``unique'' battleground of the new
century. We instead opted for more of the same, except the pressure
would be ratcheted up . . . in some cases to an alarming degree. When
presented with the choice of getting smarter or getting tougher, we
chose the latter. Nonetheless, the intelligence shortfall continued and
left commanders demanding more.
I'd like to briefly segue to a relevant event that took place this
summer. I was privileged to join 14 of America's most accomplished
intelligence and law enforcement professionals in an intensive
discussion of best practices in interrogation. Representing the Central
Intelligence Agency, the Department of Defense, and the Federal Bureau
of Investigation, we collectively represented 350 years of operational
experience in conducting thousands of interrogations and debriefings.
Our respective professional experiences led us to a single, emphatic
conclusion: the most effective method for consistently eliciting
accurate and comprehensive information from even the most defiant
individuals--to include terrorists and insurgents--was through a
patient, systematic, and culturally enlightened effort to build an
operationally useful relationship. Similarly, we shared the belief that
coercive tactics that relied on psychological, emotional, and/or
physical pressures were, in the long run, not only ineffective but also
counterproductive.
Ironically, this long-overdue conclave was hosted not by the U.S.
Intelligence Community, but by Human Rights First, a remarkable
organization with a vision that our recommendations might
constructively inform government policy.
Independent from that affair, the resourceful special operations
community sought solutions outside the Intelligence Community. With
clear memories of their experiences during intensive resistance to
interrogation exercises that are a key element of survival, evasion,
resistance, and escape (SERE) training, their search led them to the
cadre of talented survival instructors who had demonstrated exceptional
skill in conducting interrogations using the high-pressure, often
threatening tactics employed by countries that are not signatories to
the Geneva Convention. The special operators were understandably
impressed with the ability of these instructors to compel compliance
with both force and subterfuge.
To the nonintelligence officer, the transfer of SERE methods from
the training environment to real-world operations seemed a logical
option. Several critical factors, however, were overlooked. First, many
of the methods used in SERE training are based on what was once known
as the Communist Interrogation Model, a system designed to physically
and psychologically debilitate a detainee as a means of gaining
compliance. Second, that model's primary objective was to compel a
prisoner to generate propaganda not intelligence. Third, it was
expressly designed to mirror a program that employed methods of
interrogation considered by the West to be violations of the Geneva
Conventions.
The problems with employing SERE techniques in the interrogation of
detainees do not stop there. I want to emphasize that survival
instructors are some of the most dedicated professionals in Armed
Forces. Their tireless work supports a noble mission: to prepare others
to return with honor. I would be remiss, though, if I did not make one
point abundantly clear: survival instructors are not interrogators.
While interrogation and teaching resistance to interrogation have much
in common, they are nonetheless profoundly different activities.
Survival instructors operate in a domestic training
environment and share both a language and culture with the
students they teach. In contrast, interrogators are involved in
worldwide operations and interact with foreign nationals across
an often substantial cultural and linguistic divide.
If questions arise about the student's veracity during
role-play, a survival instructor need only call the student's
unit of assignment to verify the information. Clearly, this is
not an option for an interrogator for whom detecting deception
is a critical skill.
While interrogation role-play is limited in duration,
frequency, and scope, interrogations of custodial detainees may
last hours and continue over a span of months.
The survival instructor's focus is not on information
but the performance of the student while the interrogator must
doggedly pursue--and record--every detail of intelligence
information a detainee possesses.
With little expertise in interrogation operations at the senior
levels--and it must be noted that the Central Intelligence Agency only
became involved in interrogation after September 11--the legal,
operational, and even moral concerns about the employment of SERE
methods went largely unrecognized. There were few internal safeguards
that should have maintained a clear separation between these two
activities.
It is this lack of expertise that provides the final piece of the
puzzle. As an experienced interrogator and former director of the Air
Force Combat Interrogation Course, I am acutely aware of how the laws
of armed conflict apply to the interrogation of detainees. I was
therefore stunned upon my return from Iraq at the number of times
senior officers challenged my on-the-ground assessment of unlawful
interrogation methods with the argument that psychologically and
physically punishing interrogations are acceptable because that is how
they would expect to be treated if captured by the enemy. In other
words, they deferred to the adversary in setting standards of
conduct.\1\
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\1\ The Lexington Principles on the Rights of Detainees, a project
of the Washington and Lee University School of Law, sets forth an
excellent examination of the international legal standards with respect
to the treatment of detainees. The Lexington Principles was produced by
an association of legal scholars, military officers, and
representatives of a cross-section of related disciplines who seek to
implement the 9/11 Commission's recommendation that America engage the
international community on issues that include minimum standards for
prisoner detention and treatment. Additional information may be found
at .
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In summary, the following are the key factors contributing to our
current state:
1. Our approach to interrogation has not kept pace with our
understanding of the operational environment nor with current
knowledge in the behavioral sciences. In addition,
interrogation continues to be viewed as a relatively simple
task that can be assigned to our most junior military
personnel.
2. Pressed to find a solution to a critical intelligence
shortfall, special operators followed their professional
instincts. They could not wait for the intelligence community
to respond.
3. A lack of expertise at the senior levels in managing and
conducting interrogation operations was a single point of
failure that facilitated the introduction of SERE techniques
into the repertoire of allowable interrogation methods.
As a result, adversaries and allies alike have accused this nation
of gross violations of the Geneva Conventions and of violating the
basic human rights of detainees in our custody. The geostrategic
consequences are likely to last decades.
Mr. Chairman, I am hopeful we might leverage our collective wisdom,
expertise, and sense of justice to finally take the steps necessary to
revisit and refine our policies on the handling and interrogation of
detainees in a manner that reflects the best of America's core values.
Having interviewed a number of World War II-era interrogators who
set the standard for both operational effectiveness and propriety, I
can tell you this: members of that Greatest Generation are watching us
carefully; we walk in their shadow. Let us give them one more reason to
be proud of their country.
Chairman Levin. Thank you, Colonel, very much.
Colonel Kleinman, let me start with you. You went to Iraq
with a team of two others, so there were three of you in the
JPRA team. Is that correct?
Colonel Kleinman. That's correct, Mr. Chairman.
Chairman Levin. When you got there, that was during the
week of September 4, 2003? Does that sound right?
Colonel Kleinman. Yes, sir.
Chairman Levin. When you got there, you raised concerns, as
I understand it, about the interrogation tactics which were
being employed against detainees in our custody, and called
Colonel Moulton. Is that correct, Colonel Kleinman?
Colonel Kleinman. Not exactly, Mr. Chairman.
Chairman Levin. Oh. Well then, what happened?
Colonel Moulton. I observed a number of what I thought were
abuses, and during at least one interrogation, I intervened and
stopped it. This is before I fed it back to Colonel Moulton,
because I didn't think there were systemic problems. I did talk
to the Captain who was in charge of the J-2X, which is a
position responsible for overseeing interrogation and human
intelligence operations and counterintelligence. His quote was,
``Your judgment is my judgment.'' So, I stopped the
interrogation. I did brief the task force commander of what I
did and why. He had absolutely no reservations about that
action.
Chairman Levin. The task force commander was whom?
Colonel Kleinman. I've been briefed, sir. I'm not sure if
I'm----
Chairman Levin. All right. Let me ask you this question.
You witnessed an interrogation that you thought was abusive?
Colonel Kleinman. Yes, sir.
Chairman Levin. Can you describe what you saw?
Colonel Kleinman. Yes, sir. Very simply. I walked into an
interrogation room all painted in black with a spotlight on the
detainee. Behind the detainee was a military guard with an iron
bar, literally the caricature or stereotype of the old gangster
movies, slapping it in his hand. The interrogator was sitting
in a chair. The interpreter was to his left. The detainee was
on his knees. A question was asked by the interrogator and
interpreted. The response came back, and upon interpretation
the detainee would be slapped across the face. That continued
with every question and every response. I asked my colleagues
how long this had been going on, specifically the slapping.
They said approximately 30 minutes. They didn't seem to think
there was a problem, because in SERE training there's a facial
slap. But, it's conducted in a very specific way to a very
specific part of the face so that it causes more shock than
pain. This was not conducted in that fashion.
Chairman Levin. Who was conducting it?
Colonel Kleinman. One of the interrogators who was assigned
to the task force. Not one of the JPRA members.
Chairman Levin. Were the other two JPRA members in the
room?
Colonel Kleinman. Yes, sir, they were sitting in chairs
behind the detainee, 2 or 3 yards away. They weren't involved,
other than observing at the time I was there. They made no
comment.
Chairman Levin. Following that incident is when you first
called Colonel Moulton. Is that correct?
Colonel Kleinman. No, sir.
Chairman Levin. When did you call Colonel Moulton? How long
after you witnessed that?
Colonel Kleinman. Thinking that it was an individual
problem that we could handle at the task force level, that
JPRA's interests weren't really involved there, it must have
been a week before I talked to Colonel Moulton, maybe even
longer.
Chairman Levin. All right.
Colonel Kleinman. That time, I was observing the activities
at this interrogation facility and reporting back to the task
force commander with my assessment of where the problems lied
and where the possible solutions were.
Chairman Levin. Was there another incident that you
witnessed which you considered abusive?
Colonel Kleinman. Yes, sir. There was one case. A plan was
laid out on butcher paper for another detainee that involved
extensive stress positions, followed by interrogation, followed
by short periods of sleep, 45 minutes, I think. The idea was
that maybe they would give them 4 hours of sleep over a 24-hour
period, but it wouldn't be continuous, it would be in little
45-minute increments. It was literally specific. This time to
this time, they'd be in stress position. This time to this
time, they would be allowed to sleep. This time to this time,
they would be interrogated. I stopped that, also.
Chairman Levin. Was it at that point you first called
Colonel Moulton?
Colonel Kleinman. No, I think it was shortly after that
point that a disagreement arose between myself and the two
other members of the team. They felt that I had no authority to
have stopped any of the interrogations.
Chairman Levin. This is your JPRA team that you're talking
about?
Colonel Kleinman. Yes, sir.
Chairman Levin. You had stopped the interrogation. You were
arguing with them as to whether you had the authority to do so?
Colonel Kleinman. That's correct.
Chairman Levin. It was at that point you called the
Colonel?
Colonel Kleinman. Yes, at that point.
Chairman Levin. When you called, what was the conversation?
Colonel Kleinman. I want to provide as accurate information
as possible, so let me reflect on this. It was about the point
when I saw other challenges, how things weren't going to get
better, and that my two JPRA colleagues were pushing to get
more involved. I told them that they should, precisely as
advisors. For instance, how to handle prisoners when they first
come in, how to go through pocket litter, et cetera, the things
that I thought JPRA had a strength that they could offer. But,
it was when they started making recommendations about the
treatment of a detainee that would be essentially a replication
of what we do during our role-play exercises, which sometimes
are very intensive, but are supervised by a psychologist, by
medical personnel, by seasoned individuals. That's when I
called.
Chairman Levin. Those were the techniques that you
considered abusive when applied to detainees?
Colonel Kleinman. Yes, sir. I can enumerate what those
were.
Chairman Levin. Please.
Colonel Kleinman. Stripped naked----
Chairman Levin. Well, now, did you see that?
Colonel Kleinman. Ultimately, I did, sir. This was after, I
believe, I talked with Colonel Moulton.
Chairman Levin. All right, that comes afterward, the
stripping naked.
Colonel Kleinman. Yes, sir.
Chairman Levin. Let's go back, now, to the call that you
had with Colonel Moulton.
Colonel Kleinman. All right. I talked to the task force
commander. I expressed my concerns that the SERE methods for
interrogation were unlawful, they violated the Geneva
Convention and national law. The task force commander had,
again, absolutely no reservation about that. He said, ``Well,
of course. Survival training is conducted by people who
volunteer under very controlled measures. This is a whole
different field out here.'' I said, ``Well, my colleagues and
others at the task force are expecting us to use these other
methods.'' So, I told him that I was going to call Colonel
Moulton, and I think, actually, this officer had discussions
with Colonel Moulton beforehand.
Chairman Levin. Following that conversation, you called
Colonel Moulton?
Colonel Kleinman. Yes, sir.
Chairman Levin. Would you now tell us what that
conversation was?
Colonel Kleinman. Yes, sir. I explained that we were being
asked to use the full range of SERE methods in the
interrogation of detainees, and I told him that it was my view
that those were violations of the Geneva Convention, they
weren't authorized, and we should not do them.
Chairman Levin. Did you describe what you had seen?
Colonel Kleinman. Yes, sir. I told him that I had stopped
interrogations, and the approaches that had been used I thought
were unlawful.
Chairman Levin. What was his response?
Colonel Kleinman. I believe, at that time, he said that he
was going to check other sources to make sure that we were
clear on what we could and could not do.
Chairman Levin. Was there anything else in that
conversation that you remember?
Colonel Kleinman. I was directed to call him again 24 hours
later.
Chairman Levin. Did you do that?
Colonel Kleinman. Yes, sir, I did.
Chairman Levin. Tell us about that second conversation.
Colonel Kleinman. The second was very short. I was told,
``We are cleared hot to use SERE methods.'' In the flying
community, especially, when you're cleared hot, weapons-free,
you can act on orders to fire weapons, no further direction
necessary.
So, I asked him specifically if he could enumerate those
approaches, which he did. Maybe he wondered why I was asking. I
just wanted to make sure we were clear that we were talking
about belly slap, walling, we went into the entire list, the
isolation, that sort of thing.
I explained to him that, in my opinion, not as a member of
JPRA, but as an experienced interrogator, that this was a
violation of Geneva Conventions. I might add, the task force
Judge Advocate General (JAG) that I talked to agreed with me
100 percent, and apparently he briefed the task force
commander, but when it was time for him to brief the
interrogators, it kind of fell back to the ``it depends'' mode.
Chairman Levin. Did you explain to your headquarters that
you had stopped the interrogation, you had considered them
illegal? They knew that when you called Colonel Moulton, you
had explained to him what you had done?
Colonel Kleinman. Yes, sir. In addition, one of my team
members had a satellite telephone, and he had made calls to
another individual at JPRA who's pretty much our point of
contact, and briefed them on what I had done, as well.
Chairman Levin. Was stripping one of those methods?
Colonel Kleinman. Subsequent to the conversation I had with
Colonel Moulton, yes, sir.
Chairman Levin. Not what you saw, but, in terms of the list
of JPRA approved tactics?
Colonel Kleinman. Well, I won't testify to that, sir. Only
because it's been years now, and it was an intensive phone
call.
Chairman Levin. No, no. I'm looking at the list of JPRA
methods--body slaps, stripping, immersion in water. Are those
the JPRA techniques that you went through with Colonel Moulton?
Colonel Kleinman. Yes, sir. I'm not sure if we went through
the entire list, Mr. Chairman.
Chairman Levin. But, you talked about specific techniques?
Colonel Kleinman. Right.
Chairman Levin. After that second phone call, did you
witness another incident involving your two JPRA colleagues?
Colonel Kleinman. Yes, Mr. Chairman, I did.
Chairman Levin. Will you describe that incident?
Colonel Kleinman. Yes, sir. After the phone call with
Colonel Moulton----
Chairman Levin. That would be the second phone call?
Colonel Kleinman. Yes, sir. I related to them my discussion
with Colonel Moulton.
Chairman Levin. ``Them'' being?
Colonel Kleinman. The two members of the JPRA team. I
explained the difference of opinion that I had with Colonel
Moulton, that I told him that I thought it was an unlawful
order, and I wasn't going to have any involvement with it, and
I didn't think that they should, either.
One was a contractor, and one was a civilian. The military
line of authority was very unclear at the time. But, they
decided that there was going to be one effort to demonstrate
the way you handled an interrogation. So, there was an
individual that was suspected of being a terrorist. How it
unfolded is, I said, ``Well, let's take control and show them
how to do one in a methodical fashion.'' My plan was for this
person, who hadn't provided any information, ``Why don't we
create a false release sort of scenario. We'll make him think
that we're letting him go, almost kind of a reset button. We'll
bring him back in here, and we'll approach him in a much more
mature, much more systematic fashion, and not threatening,
we'll just be very purposeful. Will we use ploys and
stratagems? Absolutely. But, we didn't need to use any of the
survival methods.''
Chairman Levin. The ``survival methods'' being those SERE
methods, the aggressive physical methods, the stripping and
things like that.
Colonel Kleinman. Yes, Mr. Chairman.
Chairman Levin. That's not what you were proposing.
Colonel Kleinman. That's correct, I was not proposing that.
Chairman Levin. Okay.
Colonel Kleinman. The other two members took charge of the
interrogation.
Chairman Levin. Where was the interrogation?
Colonel Kleinman. It was at the same interrogation center
that was associated with the task force.
Chairman Levin. Was that detainee driven to that place?
Colonel Kleinman. He was driven away, then brought back.
Chairman Levin. He was driven. Was this a cell of some
kind?
Colonel Kleinman. Actually, where it took place was a
bunker that was about a story into the ground; cement, cold,
dark. I think it was either an ammo bunker or even a defensive
position.
Chairman Levin. But, he was driven away first, and then
brought back?
Colonel Kleinman. Yes.
Chairman Levin. What was the purpose of that?
Colonel Kleinman. The idea was to make him think that he
was being released and then picked up by different people.
Chairman Levin. Okay. What happened in that bunker then?
Colonel Kleinman. What happened in that bunker was
something I'd seen hundreds of times. It's the way we go about
some of the survival training.
Chairman Levin. You've seen it hundreds of times in your
survival training of our own people under the very controlled
environment that you've described.
Colonel Kleinman. Yes, Mr. Chairman.
Chairman Levin. That's not what this environment was, I
take it.
Colonel Kleinman. This was an uncontrolled environment by
any measure.
Chairman Levin. Okay, and against a detainee?
Colonel Kleinman. Yes.
Chairman Levin. Now, would you describe what you saw?
Colonel Kleinman. He was literally carried, by two of the
guards, into the bunker, struggling against them. He was taken
down there. My two JPRA colleagues took over from that point.
They ripped his disdasha off, not cut, they ripped it off.
Chairman Levin. His what?
Colonel Kleinman. The traditional Middle Eastern wear, a
long, almost dresslike garment. They ripped it off his body,
ripped off his underwear, and took his shoes. They had hooded
him already. Then they shackled him by the wrists and ankles
and screamed at him in his ear the entire time in English about
essentially what a poor specimen of human that he was. Then,
the orders were given that he was to stand in that position for
12 hours. No matter how much he asked for help, no matter how
much he pleaded, unless he passed out, the guards were not to
respond to any requests for help. It wasn't until after 12
hours that we'd start to interrogate. He was left in that
position, in a cement room about, maybe, 6 foot by 6 foot.
Small enough that, had he lost consciousness and fallen over in
any direction, he would have clearly hit his head on a wall.
Chairman Levin. Okay. So, he was stripped naked and left
standing.
Colonel Kleinman. Yes, sir.
Chairman Levin. That's when you left?
Colonel Kleinman. That's when I left.
Chairman Levin. What did you say to your JPRA colleagues?
Colonel Kleinman. I told them that this is unlawful. I went
into detail about the operational effectiveness, trying to gain
their support in that way. But, I just told them, ``This is
unlawful,'' and we ended up putting a stop to it right there.
There was no reason to continue, at that point.
Chairman Levin. You put a stop to that?
Colonel Kleinman. Yes.
Chairman Levin. Was there another conversation, then, you
had with Colonel Moulton?
Colonel Kleinman. No, sir. At that point, my discussions
were almost daily with the task force commander, telling him
what we could not do and giving him my assessment of what his
options were. At that point, what happened for the remainder of
our time out there is, my two colleagues pretty much stayed
inside a room. They did provide survival training to some of
the Rangers there, refresher training, getting back to their
strength, what they do incredibly well.
Chairman Levin. This is the survival training that they
were trained to do?
Colonel Kleinman. Yes. Both these individuals were career
survival instructors.
Chairman Levin. You said one was a contractor and one was a
civilian.
Colonel Kleinman. Yes, sir. One was a government civilian,
a full-time employee with the Department of the Air Force, and
the other was a contractor.
Chairman Levin. Colonel Moulton, does your memory of these
phone calls differ in any significant way from Colonel
Kleinman's?
Colonel Moulton. Pretty close. First off, our team was sent
in to help identify resistance techniques being employed by
detained unlawful combatants (DUCs). The first call, as I
recall, Colonel Kleinman said that the task force had wanted us
to demonstrate to the task force interrogators some of the
counter-resistance techniques that we had employed in our
survival school. That was one that I took up the chain to
JFCOM, and they came back and said, ``You're authorized to do
that.'' The second call I got from Colonel Kleinman, I believe,
was the one where he said that they now wanted participation.
That's the one that I asked two questions. I wanted to know the
legal status. I said, ``Are these DUCs?'' The response was yes.
Chairman Levin. After the second call, you then made this
inquiry that you're now talking about? That you wanted to know
two things?
Colonel Moulton. This is during the second call.
Chairman Levin. You asked him?
Colonel Moulton. Right. Yes.
Chairman Levin. Colonel Kleinman?
Colonel Moulton. Right. I wanted to know if these were
POWs, or if they were DUCs. I wanted to know if any of the
techniques were over and beyond what we had done in our
survival training. He said, basically, that he was told they
were DUCs, from my recollection, and that they weren't going
over and above what we did in our survival schools.
I took that message back to JFCOM. We talked about the
charter responsibilities. I had that conversation, as I recall,
with the senior leadership. At that time, they said, ``All
right, let them all do it once or twice,'' but I think it was
just one time, ``Demonstrate, one time, with the actual
detainees, and then that's it,'' because my senior leadership,
as well as I, were concerned about us getting involved in the
offensive side of the interrogation business.
Chairman Levin. Did they tell you that it was beyond your
charter to get involved in offensive activity?
Colonel Moulton. I told them it was beyond our charter.
Chairman Levin. Who was it, in the senior leadership, that
you talked to?
Colonel Moulton. I believe it was either Admiral Bird or
General Wagner. I know I talked to both of them. I'm not sure
which one was with which conversation.
Chairman Levin. Did you tell them what Colonel Kleinman had
observed, that he considered it illegal and he had stopped it?
Colonel Moulton. No, and that's probably the only
significant disagreement I had with Colonel Kleinman. I do
remember he said he thought it was not covered under the Geneva
Convention. I did not hear the words ``illegal order.'' In
fact, I specifically remember receiving one of the after-action
reports from one of the other members that mentioned ``illegal
order,'' and obviously, something like that hit me pretty hard.
So, I talked to Colonel Kleinman about it. He was adamant that
he thought it was against the Geneva Convention.
Chairman Levin. Were you told that enemy combatants are not
protected by the Geneva Convention? Is that what you were told?
Colonel Moulton. Yes, sir, that was the assumption that we
were under.
Chairman Levin. Did you assume it or were you told that by
somebody?
Colonel Moulton. We were told that. That's my recollection,
I don't remember where.
Chairman Levin. Do you remember who told you that?
Colonel Moulton. No, sir. There were several discussions,
both publicly and within DOD channels about: What is the legal
status of these terrorists that we're fighting? Are they POWs?
Are they DUCs? In fact, before I sent the team over, I talked
to the task force commander and asked him what the legal status
was. I was told that they were DUCs and not covered under the
Geneva Conventions.
Chairman Levin. That was people in Iraq. You were told that
people in Iraq who were not POWs, not wearing uniforms, but
were illegal combatants were not covered by Geneva Conventions,
even though they were in Iraq?
Colonel Moulton. Yes, sir, that's correct.
Chairman Levin. You don't remember who told you that?
Colonel Moulton. I believe it was the task force commander.
Sir, one other thing I failed to mention was, when I did talk
to the JFCOM leadership they always said that it really has to
go through Central Command's (CENTCOM) legal office or the
people on the ground. I'm pretty positive I relayed that to
Colonel Kleinman.
Chairman Levin. Who was supposed to go through CENTCOM? Was
that something that Colonel Kleinman was supposed to do?
Colonel Moulton. Yes, sir. He was supposed to take the
legal advice from the legal authorities within CENTCOM.
Chairman Levin. Do you remember that, Colonel?
Colonel Kleinman. Yes, sir, I did. I talked to the task
force JAG.
Chairman Levin. What was his reaction to what you saw?
Colonel Kleinman. His reaction was that what I did was the
right thing, that it was unlawful to use those methods.
Chairman Levin. Did you inform Colonel Moulton of that?
Colonel Kleinman. At that point, I informed the task force
commander. I don't know that we had another discussion after
that. The problem was, that's what the JAG officer told me,
that's what he also told me in the presence of the task force
psychologist. But, when it was time to brief the interrogators,
he briefed it that way, then when the question arose, it was,
``Well, it depends.'' There was not any clarity anymore.
Chairman Levin. Colonel Moulton, the bottom line is that
you checked with your command, and you were told that the team
was authorized to use the SERE physical pressures, but not go
beyond those.
Colonel Moulton. Yes, sir, predicated on the legal advice
they got from the CENTCOM legal representative.
Chairman Levin. Well, the legal advice they got was that it
was not proper.
Colonel Moulton. Senator, the first time I heard anything
about an ``illegal order'' was in the after-action report from
one of the other members.
Chairman Levin. Okay. But, your recollection, Colonel
Kleinman, is that you told Colonel Moulton that you thought it
was an illegal order.
Colonel Kleinman. Yes, sir, I told him that the methods
were unlawful, and therefore, the order to execute them would
be unlawful.
Chairman Levin. All right.
Colonel Kleinman. Now, Mr. Chairman, I might want to add,
we were talking over a secure line halfway around the world. I
don't at all question Colonel Moulton's view of what happened
or his judgment based on the context from which he was
operating. I thought I was very clear about it, and if he
doesn't recall it that way, I think it's just a matter of he
didn't hear it.
Chairman Levin. You just have either different
recollections or you didn't hear something.
Colonel Moulton. No, in both phone calls, Colonel Kleinman
specifically said he thought that the actions being taken were
not in accordance with the Geneva Convention. Of course, at
that time, we were under the assumption, from the information
that we had gotten from the task force, that these were DUCs,
and the Geneva Convention did not apply. But, I do not remember
the words ``illegal order.''
Chairman Levin. Well, if Geneva applies in Iraq, that would
be an illegal order, right?
Colonel Moulton. Yes, sir. But, I did not hear those
specific words.
Chairman Levin. All right.
Colonel Kleinman, I understand that it is permissible that
your JPRA colleagues' names be part of the record. As I
understand it, their names are Terrence Russell and Lenny
Miller. Is that correct?
Colonel Kleinman. That's correct, Mr. Chairman.
Chairman Levin. I just want to clarify the point, in the
phone calls, as to whether or not you told Colonel Moulton that
you had stopped the interrogation that you had witnessed, the
first one.
Colonel Kleinman. Yes, I did explain that I had done that.
Chairman Levin. Do you remember that, Colonel Moulton?
Colonel Moulton. I don't remember if that came from the
conversation with Colonel Kleinman or one of the people back at
Fairchild. At some point, I was told that he had stopped and
intervened, but I think it was after the phone calls. I can't
remember exactly when.
Chairman Levin. Colonel Kleinman, you've mentioned these
two JPRA employees. Were either of them trained interrogators?
Colonel Kleinman. No, Mr. Chairman. They both had very
impressive backgrounds as survival instructors. Both were
retired, I believe, master sergeants in the United States Air
Force, where their entire careers were spent. They were never
interrogators. To the best of my knowledge, up to the point
that we appeared in Iraq, they had never actually seen what I
would describe as a real-world interrogation.
Chairman Levin. Colonel Kleinman, you mentioned the task
force psychologist. Did the task force SERE psychologist have a
view on the appropriateness of using SERE techniques in
detainee interrogations?
Colonel Kleinman. Yes, sir, he did.
Chairman Levin. Who was that, if it's appropriate to name
him, and what was his or her view?
Colonel Kleinman. His view was that it was absolutely
inappropriate. It was designed for a very specific purpose,
being resistant to interrogation. It was not designed to be
used against detainees as a method of interrogation.
Chairman Levin. Were you aware of that, Colonel Moulton?
Colonel Moulton. No, sir. Senator Levin, if I may add one
thing?
Chairman Levin. Please.
Colonel Moulton. The only conversations I had with the team
were through Colonel Kleinman, and the only contact I had with
the task force was through the commander there. Once I found
out that there was an intervention, that there might be some
type of an issue, I called back and talked to the task force
commander who told me that he was very satisfied with the
support he was receiving and everything was going fine, which
was a little bit different when the team got back, but that was
the message that was conveyed to me. That's probably why I
wasn't more excited about this.
Chairman Levin. Did the task force commander tell you,
Colonel Moulton, that the Geneva Conventions did not apply?
Colonel Moulton. Sir, I don't know if he specifically told
me that. I specifically asked him the legal status of the
detainees and whether or not they were allowed to do these
things.
Colonel Kleinman. Mr. Chairman, I did have that
conversation with the task force commander specifically.
Chairman Levin. All right. Colonel Kleinman?
Colonel Kleinman. I explained to him, the Brigadier
General, that it was my view that these tactics were unlawful
and were a violation of the Geneva Convention and national law.
He didn't hesitate for a moment, saying very clearly, which
I've heard from others', ``SERE methods have a purpose, they
have a real important purpose under controlled conditions for
training volunteers.'' He emphasized that. He didn't have any
argument about that.
Chairman Levin. Are we talking about the same task force
commander?
Colonel Kleinman. Yes, we are, sir.
Chairman Levin. Who is it? Has he been named here already?
Colonel Kleinman. No, he has not been named.
Chairman Levin. Do you remember the name?
Colonel Moulton. Yes, sir, I do.
Chairman Levin. Who was that?
Colonel Moulton. It's General Koenig.
Chairman Levin. Is that the same person?
Colonel Kleinman. Yes, Mr. Chairman.
Chairman Levin. So, everyone at the task force thought
these SERE techniques should not be used against detainees. Who
on the ground, if anybody, was authorizing these, or did that
authority come from headquarters?
Colonel Kleinman. Initially, there was no real clear
authority given to either employ SERE methods or not. Their
understanding was, JPRA was out there to demonstrate the use of
these SERE methods. When I went back to the task force
commander with concerns it seemed to fall into a void. I would
brief the task force commander very clearly, and he very
clearly agreed with my assessment of it, but there were never
any orders issued. When I'd go over to the interrogation
center, their senior interrogator never got any guidance about
that except from me.
Chairman Levin. You stopped them?
Colonel Kleinman. Yes, sir.
Chairman Levin. Well then, who gave them the order to
proceed after you had stopped them? Where did that come from?
On the ground, everyone seems to be opposed to it.
Colonel Kleinman. I don't know, Mr. Chairman.
Chairman Levin. Everyone who's been identified so far has
been opposed to it. You said the commander agreed with you.
Colonel Kleinman. Right.
Chairman Levin. I don't know who disagreed with him, but
he's the commander.
Colonel Kleinman. Yes, sir.
Chairman Levin. So, the commander agrees with you, you stop
them, you say they're illegal, you say they violate Geneva, and
somehow they start again. Then you stop the second one, or the
one that you saw in that bunker that you described. We don't
know what happened after that, do we, whether or not the
techniques were used after that?
Colonel Kleinman. I don't know.
Chairman Levin. You said that you talked to the task force
legal advisor. Do you remember his name or her name?
Colonel Kleinman. No, I don't recall. No.
Chairman Levin. Colonel Moulton, do you remember his or her
name?
Colonel Moulton. No, sir.
Chairman Levin. Is it accurate that other task force
personnel were not pleased with your decision to stop the use
of those tactics? Is that true?
Colonel Kleinman. That's very accurate, Mr. Chairman.
Chairman Levin. Now, while you were still in Iraq, you
prepared a draft CONOP for the interrogation of detainees, and
your staff sent this CONOP to Captain Dan Donovan, who was the
JFCOM staff judge advocate. You did that, according to our
information, on September 22, 2003.
According to e-mails from Captain Donovan, JPRA based the
CONOP on a draft report on interrogation techniques that had
been written by the DOD Detainee Working Group. So, DOD had a
working group. According to Captain Donovan, this CONOP
included highly aggressive interrogation techniques, including
the water board. I think you also mentioned the draft working
group report. Where did JPRA get a copy of that draft DOD
working group report? Do you know, Colonel Kleinman?
Colonel Kleinman. Let me clarify that, Mr. Chairman. I did
not draft that. That tasking to draft a CONOP came direct from
one of the staff officers.
Chairman Levin. Are you familiar with this?
Colonel Moulton. Yes, sir.
Chairman Levin. Okay.
Colonel Kleinman. We were given direction that we should
capture our experience out there and begin drafting a CONOP,
with the idea that perhaps JPRA was moving down towards an
expansion of the charter. So, I passed that order on to Terry
Russell to prepare that. I told him I wasn't going to draft it
myself because I absolutely disagreed with that type of
expansion of the use of SERE methods, and so, my contribution
would be nothing but contrary. But, the commander asked for a
CONOP, and he'd been, I believe, asked for one in turn, so I
directed Mr. Russell to prepare it.
Chairman Levin. Is that your recollection, too, Colonel
Moulton?
Colonel Moulton. Yes, sir. I think the genesis of that was,
from the after-action reports, the fact that there was no
standardized process involved there. If something like that was
going to happen again, we wanted to make sure that there was
some kind of a comprehensive process.
With respect to the SERE techniques that was, I believe, a
cut-and-paste out of the guide. Our concern was more about
working with the SERE psychologist to make sure that whoever
was doing this understood that there is a very involved
comprehensive process of properly handling detainees.
Just this last week, I reviewed an after-action report. I
noticed, from General Wagner's statement, he said one wasn't
forwarded until 2005. But, we did forward one up to JFCOM
afterwards. Unfortunately, it's classified. But, if you look at
the recommendations that came out of that after-action report,
it really addressed many of the issues that Colonel Kleinman is
talking about, and also may have prevented the types of things
that happened at Abu Ghraib and other places.
Chairman Levin. Okay. There was a draft CONOP report. Is
that correct? You didn't do it, but someone in your party did
it. Is that right?
Colonel Kleinman. Yes, Mr. Chairman.
Chairman Levin. Was the CONOP written before the after-
action reports, do you know?
Colonel Kleinman. Our after-action reports from our trip to
Iraq?
Chairman Levin. Yes.
Colonel Kleinman. Yes, sir, it was.
Chairman Levin. The draft?
Colonel Kleinman. Yes. It was completed and transmitted
before we left Iraq.
Chairman Levin. Captain Donovan said that the CONOP
included highly aggressive interrogation techniques, including
the water board. He specifically made reference, however, to
that working group at DOD. I think I've asked you, Colonel
Kleinman, and you said you don't know where they got that.
Colonel Kleinman. That's correct.
Chairman Levin. Colonel Moulton, do you know?
Colonel Moulton. No, sir.
Chairman Levin. Are either of you familiar with that
working group at DOD?
Colonel Moulton. Sir, I'm very familiar with the working
group.
Chairman Levin. The working group I'm referring to is a
group of senior lawyers. Is that the same working group?
Colonel Moulton. Yes, sir.
Chairman Levin. You're familiar with the product of that
working group?
Colonel Moulton. Parts of it. I was told the draft that was
included in our CONOP came from that working group.
Chairman Levin. Did you see that draft?
Colonel Moulton. I didn't read the whole thing, sir.
Chairman Levin. Did you have a copy of it? Was it available
to you?
Colonel Moulton. Yes, sir. That was what was forwarded to
Captain Donovan.
Chairman Levin. By you?
Colonel Moulton. Well, I don't know if it was me
specifically, but I chop everything before it goes up to JFCOM
so, I would have signed the package.
Chairman Levin. You would have signed the package that
contained that draft of that working group of senior lawyers at
DOD?
Colonel Moulton. No, sir. The SERE resistance techniques
were taken from whatever the working group put together.
Chairman Levin. I'm talking about a specific draft of that
working group. They came up with a draft.
Colonel Moulton. Yes, sir.
Chairman Levin. You had access to it and forwarded that
draft to your commander?
Colonel Moulton. No, sir, I don't think it was the entire
draft, I think it was just resistance-technique portions of
that draft. I'm not sure. I just think that's what it was.
Chairman Levin. Anyway, there was reference to that working
group's draft?
Colonel Moulton. Yes, sir.
Chairman Levin. Did JPRA play any role in the working
group?
Colonel Moulton. No, sir. I believe some of the techniques
were probably part of the documentation that was sent to Mr.
Shiffrin at an earlier time, but we did not actively
participate in the working group.
Chairman Levin. Colonel Moulton, shortly after the JPRA
team left for Iraq in September, you sent an e-mail to JPRA's
liaison office at CENTCOM that discussed a possible trip by you
and a couple other JPRA employees to visit various CENTCOM
interrogation facilities. You said, ``I can support, and have
already presented, the concept to JFCOM. We just need the
invite.'' Did you ever get the invitation from CENTCOM?
Colonel Moulton. Yes, sir, I believe we did.
Chairman Levin. In his report, the DOD IG said that there
was a planned JPRA trip to Afghanistan in May 2004.
Colonel Moulton. I believe that's correct.
Chairman Levin. Who requested the JPRA support in
Afghanistan?
Colonel Moulton. That was CENTCOM, sir.
Chairman Levin. Do you know what they wanted JPRA to do in
Afghanistan?
Colonel Moulton. They wanted us to go and take a look at
the entire process of interrogation, from the constabulary
process all the way through the interrogation process. A lot of
that had to do with the outcome in the after-action that came
out of the trip that Colonel Kleinman's folks took.
Chairman Levin. Was the trip canceled?
Colonel Moulton. Yes, sir.
Chairman Levin. Why was that canceled?
Colonel Moulton. I'm not sure exactly why. I believe
Admiral Giambastiani decided not to go further with it.
Chairman Levin. When would that have been?
Colonel Moulton. I'm not positive. I'd say it was probably
within a week of when the departure was supposed to be.
Chairman Levin. Okay. Just excuse me a minute. [Pause.]
What was Admiral Giambastiani's position?
Colonel Moulton. Sir, he was the Commander of JFCOM.
Chairman Levin. Let me go back to the visit to Iraq.
Colonel Moulton, why did you think that the task force in Iraq
wanted a JPRA team to go to Iraq?
Colonel Moulton. Sir, the request that came from the
commander specifically said he was having problems with
interrogation, and he had heard that our people were able to
identify resistance techniques being used by detainees.
Chairman Levin. Did he make reference to JPRA
interrogators?
Colonel Moulton. I don't believe so, sir.
Chairman Levin. Was there a complaint that you registered
at the time, or did you tell JFCOM that your folks should not
be used as interrogators?
Colonel Moulton. I don't recall that, but that would have
been my position.
Chairman Levin. But, you don't remember telling them that
you didn't want them used as interrogators?
Colonel Moulton. I don't remember that, no, sir.
Chairman Levin. But, that was your position?
Colonel Moulton. Yes, sir, absolutely.
Chairman Levin. Dr. Bruce Jessen, who was the senior SERE
psychologist at JPRA, sent you an e-mail on April 16, 2002 (see
Annex B); and attached to that e-mail was a draft exploitation
plan. Do you know what prompted Dr. Jessen to draft that plan?
Colonel Moulton. Sir, I just don't have the information.
Chairman Levin. We're going back to 2002 now. This was way
before Iraq. Your reply, dated April 17, 2002, said that he
should put together a briefing to take up for approval. Take up
to whom?
Colonel Moulton. That would have been to JFCOM.
Chairman Levin. Did that briefing ever occur?
Colonel Moulton. Sir, I don't believe so. I don't remember
Dr. Jessen going up with me for any briefings. It may have
happened. I just don't recall that, sir.
Chairman Levin. Do you remember whether or not the
exploitation plan was ever implemented?
Colonel Moulton. Sir, I don't remember.
Chairman Levin. Colonel Moulton, a September 9, 2003, e-
mail from you to Rear Admiral Bird, who is the Director of
Operations at JFCOM says, ``A recent history, to include
discussions and training with Defense Human Intelligence
Service (DHS), SOCOM, and CIA, shows that no DOD entity has a
firm grasp on any comprehensive approach to strategic
debriefing/interrogation. Our subject matter experts and
certain Service SERE psychologists currently have the most
knowledge and depth within DOD on the captivity environment and
exploitation.''
What are the discussions and training with DHS, SOCOM, and
CIA that your e-mail makes reference to?
Colonel Moulton. Sir, initially, the training we were
providing was to help those organizations actually do their own
resistance or survival training. The feedback I was getting
from my SERE psychologist was that those folks were not
familiar with the captivity environment, the psychology of
captivity, and they noted that they didn't have any
standardized methodology for doing any kind of strategic
debriefing.
Chairman Levin. Colonel Moulton, the committee has heard
today, and on June 17, about several JPRA offensive activities.
This is a list of what we've heard: JPRA's December 2001
response to a request from the DOD General Counsel's Office for
information on exploitation; briefings by JPRA for deploying
DIA personnel; JPRA's July 2002 response to a request from DOD
General Counsel's Office for information on physical and
psychological pressures used in SERE training; the August 2002
JPRA training for GTMO personnel at Fort Bragg; September 2003
deployment of the JPRA interrogation assistance team to Iraq.
The JFCOM staff judge advocate's account of her interview
with you says that you never deployed a support team without
approval from the JFCOM J-3, the Director of Operations.
Colonel Moulton. Yes, sir, that's correct.
Chairman Levin. I just mentioned all those activities. Who
at JFCOM did you speak to about JPRA's offensive operations?
Colonel Moulton. Sir, it would have been the J-3. That's
where all the tasking went through.
Chairman Levin. Who was that?
Colonel Moulton. Depending on the timeframe, it would have
been either Brigadier General Moore or Rear Admiral Bird.
Chairman Levin. Was that General Thomas Moore?
Colonel Moulton. We called him Tango. I think it might be,
yes.
Chairman Levin. You talked to the JFCOM Director of
Operations?
Colonel Moulton. Yes, sir.
Chairman Levin. Did you talk to the chief of staff, General
James Soligan?
Colonel Moulton. Sir, I probably did, but I'd talk to those
gentleman on a daily basis.
Chairman Levin. Would you have talked about all or some of
those items that I just specified?
Colonel Moulton. I would have talked about every one of
those.
Chairman Levin. What about General Wagner, the Deputy
Commander?
Colonel Moulton. No, sir. I think the first time I got
involved with General Wagner was when Colonel Kleinman's phone
call came in, I think it was on a Friday evening. I couldn't
get ahold of Admiral Bird or General Soligan, the Chief of
Staff, so I went up the chain and spoke with General Wagner.
Chairman Levin. About that conversation?
Colonel Moulton. Yes, sir.
Chairman Levin. What about the commander, Admiral
Giambastiani?
Colonel Moulton. No, sir, I think the only time we got
Admiral Giambastiani involved was when we briefed him on that
2004 trip.
Chairman Levin. Other than that one time with General
Wagner, they never gave their approval of offensive operations?
Colonel Moulton. Yes, sir, they did. Prior to every
deployment we briefed exactly what we were going to do. Our
folks were over there assessing, providing observations and
feedback, but the only time they actually got involved was in
Colonel Kleinman's trip.
Chairman Levin. In terms of active participation in
offensive operations, other than pure observation, that was
approved by any of those folks?
Colonel Moulton. The observation and training was.
Everything we did was approved by JFCOM.
Chairman Levin. So, the list of what I told you, that was
approved, but none of those included the use of those specific
techniques against detainees. Is that correct?
Colonel Moulton. The training may have.
Chairman Levin. Against detainees?
Colonel Moulton. No, sir.
Chairman Levin. Okay. In September 2003, Captain Donovan,
the JFCOM staff judge advocate, found out about JPRA's
offensive activities, the actual use of those activities
against detainees, and he raised concerns about them. Colonel
Moulton, prior to that, did anyone else at JFCOM express
concern about those activities?
Colonel Moulton. Yes, sir. Every time I brought it up to
the leadership, we always had the discussion about whether or
not this was within the charter of JPRA. From the very
beginning, my staff, the JFCOM staff all said it was outside.
However, because there were no subject matter experts within
DOD, outside of those resident with JPRA and the SERE schools,
we decided to go ahead and provide support as subject matter
experts, but not as JPRA personnel.
Chairman Levin. So, it was outside of your charter?
Colonel Moulton. Yes, sir. I think the easiest way to
explain it is if I went to Colonel Kleinman and we needed a
Russian speaker, even though he's intelligence.
Chairman Levin. I understand. This list of things that were
requested were outside of the charter.
Colonel Moulton. Yes, sir.
Chairman Levin. In a February 2005 statement to the DOD IG,
Lieutenant General Wagner, who is the Deputy Commander at
JFCOM, said that, ``relative to interrogation capability, the
expertise of JPRA lies in training personnel how to respond to
and resist interrogations, not in how to conduct
interrogations.'' Do you agree with Lieutenant General Wagner's
statement?
Colonel Moulton. Yes, sir.
Chairman Levin. On September 29, 2004, Major General
Soligan, JFCOM's Chief of Staff, wrote a memorandum for you
saying that requests for JPRA offensive support for the Office
of the Secretary of Defense and combatant commands went
``beyond the chartered responsibility of JPRA.'' In his
February 2005 statement, Lieutenant General Wagner said that
requests for JPRA interrogation support were ``both
inconsistent with the unit's charter and might create
conditions which task JPRA to engage in offensive operational
activities outside of JPRA's defensive mission.''
In a September 8, 2003, e-mail to Lieutenant General
Wagner, you said, ``There is nothing in JPRA's charter or
elsewhere that points us toward the offensive side of captivity
conduct.''
Those are a list of offensive activities in which JPRA
engaged in. I read you that list.
Colonel Moulton. Yes, sir.
Chairman Levin. You said that they had been approved,
despite the fact that there's nothing in the charter or
elsewhere that provides for JPRA doing that. Do you know of
anyone who's been held accountable for those violations of
JPRA's charter?
Colonel Moulton. Sir, as I put in my written statement, we
all had concerns with that, and that's why we only went to
support with subject matter experts, not representatives from
JPRA.
Chairman Levin. All right. But, do you know of anybody
that's been held accountable for the decision to go outside of
JPRA's charter?
Colonel Moulton. No, sir.
Chairman Levin. Colonel Moulton, describe for us the
protections which are in place for our soldiers that go through
SERE training.
Colonel Moulton. Sir, it's very comprehensive. It starts
with the SERE psychologist to monitor them. Obviously, there
are some psychological ramifications to this kind of training.
We have medical doctors on board. We have several instructors
that are just reviewing the entire operation. It's a very
methodical and closely supervised activity.
Chairman Levin. Can our personnel end it when they give a
signal of some kind?
Colonel Moulton. Yes, sir.
Chairman Levin. Colonel Kleinman, do you want to add
anything to that, in terms of protections given in the SERE
program to our people who are being trained?
Colonel Kleinman. Yes, sir. Mr. Chairman, it's an
exceptionally professional program. I was certified as an
instructor in the course; one of the few officers privileged to
do so. It began with a psychological test to weed out those who
have a high propensity for acting out. On a regular basis, I'd
be interviewed by either the psychologist or the technicians to
see how my life is going, to make sure that I didn't come in
one day when I was supposed to use a more aggressive approach
after getting a Dear John letter the day before. It's very
specific about training. You're taught to use the physical
pressures; you receive them, so you know what it feels like;
you're observed all the time; and you're constantly checked and
rechecked. There are no gaps in the way it's conducted.
The psychologists have a dual role. Not only are they
watching the psychological health of the students, but they're
also monitoring, just as closely, the instructor staff to make
sure that somebody who is pushing somebody against a wall is
doing it because it's consistent with the learning objective,
rather than because of anger. So, it's very specific.
Chairman Levin. Colonel Kleinman, were these safeguards in
place at the task force interrogation facility in Iraq that
you've described?
Colonel Kleinman. None of those were in place, Mr.
Chairman.
Chairman Levin. Colonel Moulton, when you heard Colonel
Kleinman's description of what he observed in Iraq and how
these techniques, which were supposed to be used for a totally
different purpose, were used against detainees, what was your
reaction to what you heard here this morning?
Colonel Moulton. Well, obviously I'm disappointed at what
happened there.
Chairman Levin. Is it beyond disappointment? These
techniques were supposed to be used to help people resist
abuse, and were used by our enemies in order to force
confessions. The Communist Chinese didn't care if the
confession was true; they wanted the confession. They wanted
the propaganda value of the confession.When you heard that
these techniques, the way Colonel Kleinman described them, were
used for a purpose which they were never intended to be used,
were you just disappointed?
Colonel Moulton. No, sir. I'm sorry, it's much worse than
that. What's sad about this is I think it was done, initially,
with good intentions. I think we understood that, on what we'd
call the defensive side, we have a focal point, which is JPRA.
There is no focal point within DOD on the offensive side, and
that's one of the messages that we were trying to bring up over
and over again, which lead to all the problems we had, whether
it was at the task force over in Iraq, GTMO, or Abu Ghraib.
That was a very serious concern for us.
So, yes, I'm more than disappointed. I feel terrible that
that's where it went. However, at the time, we were acting on
good intentions. Initially, when we got involved, it was just
to help them identify those detainees who were using resistance
techniques.
Colonel Kleinman. May I add to that comment, Mr. Chairman?
Chairman Levin. Sure.
Colonel Kleinman. I agree 100 percent with Colonel
Moulton's characterization of the need for an overriding
authority, a responsible party to oversee standards of
training, standards of selection, and standards of conduct for
interrogation, which did not, and frankly, still do not exist
today. One of the aspects of JPRA that I was most impressed
with, coming to that agency after being an interrogator, was
their purposeful very professional approach to what they did.
We didn't have those standards of conduct. We didn't have
psychologists monitoring our activities, informing us how we
did what we did.
I think JPRA, in its model, offered a great deal to the
United States Intelligence Community. Had they followed through
and said, ``Well, let's adapt the JPRA model,'' in terms of
systems management, program management, and professionalism,
it's my professional judgment that some of the difficulty we
had today, Abu Ghraib and elsewhere, would have been avoided.
Chairman Levin. What's the price that we've paid for Abu
Ghraib? Do you have an opinion on that?
Colonel Moulton. I think it's pretty severe, as far as
international opinion. That hurt us gravely. It also may have
some ramifications for our own detainees in the future. It's
definitely severe.
Chairman Levin. Let me thank both of our witnesses here.
The abuses of detainees at Abu Ghraib, as we've learned
from these hearings, was not simply the result of a few
soldiers acting on their own interrogation. Techniques similar
to those used in SERE resistance training, such as stripping
detainees of their clothes, placing them in stress positions,
and use of dogs appeared in Iraq only after they had been
approved for use in Afghanistan and at GTMO.
Secretary of Defense Rumsfeld's December 2002 authorization
and subsequent interrogation policies, plans, and techniques
approved by senior military and civilian officials, some of
which we've heard about this morning, conveyed a very clear
message to the troops; that physical pressure and degradation
were appropriate treatment for detainees in U.S. military
custody, and the abuses that resulted from these decisions have
damaged our efforts to win the support of the people of the
world and our allies to our side in the war in which we are
fighting.
I hope that by shedding light on what occurred and how it
occurred, this hearing and the previous hearing and our
committee's inquiry will help us to begin to repair that damage
and to make sure that our men and women never are involved in
these kinds of activities again.
For reasons which you both have given, severe damage has
been done to our security, and to the view of our country by
the rest of the world, whose support we need in the war that
we're waging. The future threat to our troops, as Colonel
Moulton just mentioned, could also be severe. We have to begin
to repair this damage. Your testimony, because of its openness,
and you, Colonel Kleinman, in terms of your behavior at the
time, will help us to show the kind of openness that we can be
proud of in this country. Hopefully the rest of the world will
understand and appreciate that, at least when we make these
kind of horrific mistakes, we own up to them, we acknowledge
them, and we seek to repair them.
Your presence here this morning, and your cooperation with
this committee is helpful. In that regard, we thank you both,
we thank you both for your service to our country and we stand
adjourned.
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator Carl Levin
interrogation
1. Senator Levin. Colonel Moulton, a September 9, 2003, e-mail from
you to Rear Admiral John Bird who was the Director of Operations at
Joint Forces Command (JFCOM), says:
``. . . Recent history (to include discussions and training with
the Defense Human Intelligence Service, United States Special
Operations Command, and the Central Intelligence Agency (CIA)) shows
that no Department of Defense (DOD) entity has a firm grasp on any
comprehensive approach to strategic debriefing/interrogation. Our
subject matter experts (and certain Service Survival, Evasion,
Resistance, and Escape (SERE) psychologist) currently have the most
knowledge and depth within DOD on the captivity environment and
exploitation.''
You testified to the committee that ``initially the training we
were providing was to help those organizations actually do their own
resistance or survival training. . .'' Is training for those
organizations to do their own resistance or survival training what you
were referring to in your e-mail?
Colonel Moulton. In my testimony, the training I was referring to
was specifically resistance to interrogation and basic survival
training that we were providing to personnel from other government
agencies. In the course of this training, as we came into contact with
organizational psychologists, Joint Personnel Recovery Agency (JPRA)
personnel became aware that these other agencies generally were
unfamiliar with the differences between persons being treated in a
clinical environment and the human responses encountered in captivity.
What JPRA has learned over the years or supporting repatriations and
conducting SERE training is that individuals in a captivity situation
often react in a manner that is counter-intuitive to what would be
expected from a person undergoing other types of stress. My comments in
the e-mail regarding the lack of a ``comprehensive approach'' were
specifically addressing the lack of knowledge in the psychology of
captivity and its important role in the debriefing/interrogation
process. I still firmly believe that a better understanding and
promulgation of this knowledge early on in the development of
interrogation policy could have prevented much of the later mishandling
of detainees encountered.
2. Senator Levin. Colonel Moulton, please list each instance in
which the JPRA or personnel employed by JPRA provided support relating
to the interrogation of detainees in U.S. custody during your command.
For each instance please indicate to whom the support was provided and
describe the support, including whether it included providing
information or instruction on physical or psychological pressures used
in military resistance training.
Colonel Moulton. During the tenure of my command, JPRA provided
support relating to the interrogation of detainees in U.S. custody only
one time. This support was provided to a special mission unit task
force and occurred in Iraq in September 2003. The specific
circumstances of this support were the subject of my testimony on
September 25, 2008, and my earlier written statement. In summary, the
JPRA support involved a three-person team of subject matter experts.
The request for support was validated in advance by Central Command and
the team's deployment was approved by JFCOM. The team leader was an
experienced intelligence officer and the accompanying two team members
were both trained, highly experienced SERE instructors. The support
included guidance on captivity psychology and instruction/demonstration
of counter-resistance techniques employed by JPRA cadre during SERE
training. The team's support was approved by the local commander in
consultation with the commander's judge advocate and coordinated in
advance with JPRA's higher headquarters, JFCOM.
______
Questions Submitted by Senator Daniel K. Akaka
mitchell and jessen
3. Senator Akaka. Colonel Kleinman, you have indicated having
professional knowledge of, and work experiences with, Mr. James
Mitchell, the retired military psychologist described in journalist
Jane Mayer's new book, The Dark Side. Described as the CIA team leader
that took over the interrogation of terrorism detainee Abu Zubayda, he
had no background in Middle East culture, Islam, and had never even
conducted an interrogation before.
In your opinion, why would the CIA hire James Mitchell, an ex-
military psychologist that specialized in tortuous practices and their
effect on the human mind, as leader of a team meant to extract
information from Zubayda unless there was clear intent to take a path
that would lead away from adherence to the Geneva Conventions?
Colonel Kleinman. In my professional view, there have been a number
of ill-founded and erroneous assumptions made about the role of the CIA
in the interrogation of detainees and this question probes deep into
the underlying cause-and-effect.
First, in the discourse over whether the CIA should be authorized
to employ so-called enhanced interrogation techniques due to the unique
nature of their mission, it is important to highlight the fact that
prior to the attacks of September 11, the Agency was not specifically
charged with an interrogation mission nor had it assumed one; it
therefore did not possess an organic capability to conduct such
activities. In the aftermath of that horrific event, the Agency not
only became heavily involved in interrogation operations, they also
progressively exerted a curiously unchallenged prerogative to control,
conduct, and/or manage the interrogation of many high value detainees.
Second, to execute this mission, the Agency followed two paths:
a. They sought out volunteers from within the Agency to
conduct interrogations of these critical intelligence sources.
Unfortunately, few of these individuals possessed any prior
experience or training in interrogation or even, in some cases,
in field intelligence collection.
b. They also sought interrogation expertise from outside the
Agency in the form of contractors. Through an inexplicable
decisionmaking process, the Agency did not seek such
professional support from the available cadre of highly
experienced interrogators (e.g.. from the military intelligence
and/or law enforcement communities); rather, they quickly
turned to two former military SERE psychologists (Drs. Mitchell
and Jessen) who collectively possessed neither operational
experience nor training in intelligence interrogation. The
rationale behind this choice appears to be the fact that these
two individuals were acknowledged subject matter experts in
resistance to interrogation, a well-deserved reputation based
on their education, military training, and impressive
contributions to the Nation's SERE training programs.
The decision to pursue this second course highlights a major
competency shortfall: the CIA lacked the substantive corporate
knowledge of interrogation to render a meaningful distinction between:
(1) the conduct of interrogation for intelligence purposes; and (2) a
resistance to interrogation program designed to mirror the strategies
and methods conducted by selected foreign (primarily hostile) nations.
Of critical importance is the fact that many of those strategies and
methods, if employed against U.S. personnel, would be viewed by
American authorities as violations of the Geneva Convention guidelines
on the treatment of prisoners/detainees. In addition, this approach had
historically been primarily focused on compelling individuals to
produce propaganda rather than intelligence.
This melding of cultures--between Geneva Convention-bound
interrogation operations and resistance to interrogation training that
systematically involved practices in violation of these Conventions--
created an atmosphere where significant errors in judgment were almost
certain to occur. When an individual has spent a considerable portion
of his career--as Drs. Mitchell and Jessen have--designing,
supervising, and participating in realistic training scenarios where
slapping, poking, isolation, white noise, forced nudity, and overt
threats of physical abuse for noncompliant behavior were integral
elements of the paradigm, it would seem problematic if that same
individual were given responsibility for setting the standards of
conduct for the interrogation of foreign nationals that would be
consistent with applicable U.S. and international law.
Beyond the framework of any individual's value set or familiarity
with legal guidelines, the longstanding SERE experience would very
likely leave one ill-equipped to recognize the distinctive contextual
differences between activities that are acceptable (and necessary)
within a resistance to interrogation training environment and that
involving the real-world interrogation of foreign nationals. What must
not be overlooked is that many, if not all, of the physical pressures
to which U.S. military personnel are subjected on a short-term basis
during resistance training would clearly cross the legal, moral, and
operational definitions of unacceptable coercive practices--even
torture--if employed in the longer term against foreign detainees in
U.S. custody.
In sum, I can only speculate as to the rationale behind the
selection of Drs. Mitchell and Jessen for this role. I would like to
emphasize that both of these individuals served honorably in defense of
this Nation through their respective decades-long military careers.
Their individual and collaborative contributions to SERE training
remain both distinctive and irreplaceable. While I have profound
disagreement with their perspectives on what constitutes an effective
model of interrogation, I am confident that their intentions upon
accepting the contractual positions with the CIA were to continue to
serve their country. What they did not understand--and, more
importantly, what the leadership at the CIA did not appear to
understand--are the many critical differences between the American way
of interrogation and the systematic application of SERE-related
techniques.
4. Senator Akaka. Colonel Kleinman, James Mitchell and his partner,
John Bruce Jessen, have released a statement defending their
involvement in CIA interrogations that reads: ``We are proud of the
work we have done for our country. The advice we have provided and the
actions we have taken have been legal and ethical. We resolutely oppose
torture. Under no circumstances have we ever endorsed, nor would we
endorse, the use of interrogation methods designed to do physical or
psychological harm.''
From your direct knowledge of working with James Mitchell, do you
consider this to be a truthful statement?
Colonel Kleinman. Continuing on the theme of my previous answer, I
would submit that it is very likely that Dr. Mitchell believed he
answered that question truthfully. My qualification rests on the fact
that, as previously noted, the totality of his professional experience
and knowledge of interrogation prior to his service with the CIA was
limited to SERE training programs where the application of various
degrees of physical, emotional, and psychological stress were de
rigueur. The focus on such training is exclusively to aid others to
return with honor, for the SERE instructors playing the role of the
interrogator during such training, the implications of the laws of
armed conflict and/or the role of the Geneva Conventions are of little
relevance.
Intelligence interrogations conducted in real-world settings with
foreign nationals present an entirely different set of legal, moral,
and operational considerations. As a clinical psychologist with a
specialization in SERE and operational psychology, Dr. Mitchell is, in
my view, not well-prepared to draw meaningful distinctions as to what
is considered acceptable conduct in the interrogation of persons held
in U.S. custody. It is very possible--even probable--that his
experiential background would materially influence his standard for
acceptable conduct and behaviors. As a career intelligence officer and
interrogator (who has also completed an assignment as a resistance to
interrogation instructor), I have serious reservations about the
ability of anyone with extensive experience in resistance to
interrogation training--who therefore has witnessed and orchestrated
literally thousands of facial slaps, hours of isolation, application of
white noise, and both physical and verbal abuse--to render meaningful
judgments as to what constitutes torture or coercion in another,
seemingly familiar yet critically different context.
5. Senator Akaka. Colonel Kleinman, what is your overall impression
of James Mitchell, especially since you considered the CIA's reliance
on him for interrogations ``surreal''?
Colonel Kleinman. Dr. Mitchell has dedicated a substantial portion
of his professional career to the noble cause of SERE training. The
fundamental mission of SERE training, as referenced above, is to
prepare U.S. military personnel to successfully navigate the most
extreme and threatening circumstances of capture by a hostile power and
to return with honor. Dr. Mitchell has invested his considerable
talents and intellect in the continued and invaluable refinement of the
relevant tactics, techniques, and procedures.
On several occasions, I have had the opportunity to discuss with
him the philosophical underpinnings of his perceived model of
interrogation (as well as longer engagements with SERE professionals
who count themselves among the proponents Dr. Mitchell's perspectives).
The model he espoused focused on a systematic effort to undermine an
individual's emotional, psychological, and physical ability to resist
as a central tenant. An essential outcome of this process is the
establishment of a considerable level of dependence on the part of the
detainee toward his/her interrogator.
Beyond my substantial operational experience as an interrogator, I
have also conducted extensive research into the craft, to include the
interview and observation of hundreds of interrogators of various skill
levels. My conclusions--which have been supported by dozens of this
Nation's most gifted and accomplished interrogators--suggest that the
systematic application of psychological, emotional, and/or physical
stress with the objective of overcoming resistance and/or to create
some degree of dependence is not only ineffective, but also largely
counterproductive. Under the protocol that has been championed by Dr.
Mitchell, the ability to explore the full range of the detainee's
knowledgeability (which requires a significant degree of fostered
cooperation as opposed to forced compliance) is severely obstructed. In
addition, the personal and environmental pressures that are integral to
Dr. Mitchell's approach have been shown to undermine an individual's
ability to accurately recall detailed information, which is a
fundamental objective of any interrogation. Further, the model does not
appear to incorporate any emphasis on, or even concern with, the
critically important need to adapt to organic cultural tendencies
present within the detainee's demographic.
In the period following the attacks of September 11, 2001, the
Nation's premier intelligence organization, with longstanding primacy
in the area of human intelligence (i.e., the CIA), when faced with the
requirement to expeditiously develop a strategic- and operational-level
interrogation capability: (1) found it necessary to build that program
from external, contracted resources; and (2) selected an individual
with no previous training or operational experience in the actual
conduct of interrogation for intelligence purposes. This appears to be
a bizarre and unexpected set of circumstances where fact (e.g.,
interrogation is a critical intelligence methodology, American
resistance to interrogation programs are arguably the world standard
for excellence) was mixed with fantasy (e.g., practical exercises
involving SERE instructors in the role of a foreign interrogator and
U.S. military personnel in the role of the detainee mirrors lawful and
effective interrogation methods employed by intelligence officers to
obtain useful information from foreign detainees in U.S. custody) led
to the observations accurately captured by Jane Mayer in her book. The
Dark Side. It was--and remains--surreal.
interrogation techniques
6. Senator Akaka. Colonel Moulton, during the last hearing
conducted by this committee into the background of detainee
interrogations, testimony was given that each of the military Services
had raised legal and ethical concerns over the decision to approve
SERE-style interrogation techniques.
What was your knowledge of the intra-Department conflicts over the
application of SERE school interrogation methods to detainees held at
Guantanamo Bay, and did you have any contact with senior leaders from
any of these Services that highlighted their concerns?
Colonel Moulton. During my tenure as JPRA commander, I did not
participate in any Service-level discussions regarding interrogation
policy, nor, to the best of my knowledge, did any personnel under my
command. To the best of my knowledge, I did not have any particularized
knowledge at the time of intra-Department conflicts over the
application of SERE school interrogation methods to detainees held at
Guantanamo Bay, nor did I have any contact with senior leaders from any
of the Services that highlighted their concerns. JPRA did provide
background information on SERE resistance training in response to a
request for information from the DOD Office of the General Counsel in
2002. JPRA had no further requests from the Office of the General
Counsel or other DOD authorities for information on the SERE resistance
training and did not participate in any internal deliberations with DOD
or the Services on interrogation policy.
[Annexes A and B follow:]
ANNEX A
APPENDIX B
[Whereupon, at 11:20 a.m., the committee adjourned.]