500 Days (56 page)

Just as the tussle seemed to be moving toward all-out legal warfare, the government blinked. It filed papers that included, without explanation, a link to a Web page where it had posted the Manchester Manual and attached a two-page declaration about Hamdi from Michael Mobbs, special advisor to Douglas Feith, the undersecretary of defense for policy.

In the document, Mobbs said that, based on a review of relevant records, he was familiar with the circumstances surrounding Hamdi’s capture and
detention. Hamdi had received weapons training from the Taliban, Mobbs wrote, and he had surrendered to Northern Alliance forces following an intense battle. He had relinquished his rifle, was taken to a Northern Alliance prison, and had been present during an uprising there. Military screeners determined that Hamdi fitted the criteria for an enemy combatant. He was then handed over to American forces.

Doumar reviewed the filing. And he wasn’t happy with what he read.

•  •  •  

At Fort Belvoir, Colonel Baumgartner was gathering information about the psychological effects of the SERE program. He knew next to nothing about the topic, but Shiffrin from the Pentagon had asked him to write a memo describing how the harsh interrogations—especially waterboarding—affected the mental health of soldiers.

For research, Baumgartner brought together some subordinates—a group he called “the exploitation answer stuckee team”—and they were forwarding any useful material they found. Baumgartner also did his own digging and telephoned Dr. Jerald Ogrisseg, chief psychologist at the air force’s SERE school.

“I wanted to get your thoughts on waterboarding the enemy,” Baumgartner said.

Ogrisseg was taken aback. “Wouldn’t that be illegal?”

That wasn’t a judgment for Baumgartner to make. “People from above are asking about using waterboarding in real-world interrogations,” he replied.

The whole idea seemed misguided, Ogrisseg thought. No one at SERE was an expert in interrogations.

“Well, aside from being illegal,” he said, “this is a completely different arena than we at the survival school know anything about.”

Even so, Ogrisseg agreed to review the data. He found that, in SERE, the long-term psychological effects from aggressive interrogations were minimal.

There were sound reasons for that. The air force worked hard to prevent temporary damage to a trainee’s mental state from spiraling into something harmful. During training, the air force performed three extensive debriefings, giving participants the opportunity to describe their experiences; this mitigated the risk that a dramatic experience would transform into a traumatic one. Also, air force personnel who took SERE training knew that they would be waterboarded for a short period of time, were aware of what to expect, and had the chance to stop the process at any point if panic set in.

None of those controls would be incorporated into a real interrogation. Whatever happened at the SERE schools was irrelevant in assessing the psychological impact of waterboarding an enemy.

•  •  •  

Baumgartner wrote his memo in the most diplomatic tone he could muster. A lieutenant colonel couldn’t exactly send a message to the Pentagon saying, “Are you people crazy?”

The JPRA, he wrote, indeed had at its disposal experts on the use of harsh interrogations, called exploitation techniques. His unit had already briefed intelligence agencies on those methods and would be happy to do the same for the military. He was sending some documents, he wrote, that contained academic analyses of interrogation tactics, based on what had been effective against captured American soldiers in the past.

Then he tiptoed toward a warning. “The ability to exploit, however, is a very specialized skill set built on training and experience,” he wrote. This was not for amateurs.

The memo sparked some questions from the general counsel’s office, so Baumgartner set to work on a follow-up the next day, July 26. He tossed subtlety aside—this memo included an unsigned attachment that was the bureaucratic equivalent of flashing lights and sirens.

“Upwards of 90 percent of interrogations have been successful through the exclusive use of the direct approach, where a degree of rapport is established with the prisoner,” the document read.

Translation: The law enforcement approach works. As for aggressive tactics?

“Once any means of duress has been purposely applied to the prisoner, the formerly cooperative relationship can not be reestablished. In addition, the prisoner’s resolve to resist cooperating with the interrogator will likely be increased as a result of harsh or brutal treatment.”

Skilled interrogators relied on subtle, nonverbal behaviors to assess a prisoner’s psychological state, gaining insights that could be used to foster cooperation and to judge the veracity of the subject’s statements.

“The prisoner’s physical response to the pain inflicted by an interrogator would obliterate such nuance and deprive the interrogator of these key tools.”

The paradox was that the harsh techniques that reduced the ability to gauge a prisoner’s truthfulness simultaneously increased the probability of lying.

“If an interrogator produces information that resulted from the application of physical and psychological duress, the reliability and accuracy of this information is in doubt,” the attachment said. “In other words, a subject in extreme
pain may provide an answer, any answer, or many answers in order to get the pain to stop.”

Baumgartner assembled the packet of information and sent it to the Pentagon. The CIA received no such warning that conducting brutal interrogation was foolish.

•  •  •  

In a secret prison, a CIA operations officer had both of his hands wrapped around a detainee’s neck. He manipulated his fingers, then pressed down on the carotid arteries to cut off the blood flow to the man’s brain.

The detainee nodded off, close to passing out. The officer released his grip and shook him.

“Come on,” he shouted. “Wake up.”

Then he did it again. And again.

Years later, when questioned about the event, the officer would inform investigators that he had never been trained in interrogation techniques before he began questioning al-Qaeda suspects.

•  •  •  

At Guantanamo, the interviews of Mohammed al-Qahtani weren’t going well. In the week since the discovery of evidence suggesting he was the twentieth hijacker, FBI agents and military personnel had interrogated him every day, without much luck. He was combative and evasive. He projected unbridled arrogance.

He had never traveled to the United States, Qahtani insisted, and if anyone was saying that he had, well, they were lying. The interrogators then revealed that they had records showing he had tried to enter the country the year before in Orlando. Qahtani changed his story—that was just a business trip, he said. He had come to America to sell used cars. Despite the obvious contradiction, Qahtani would not budge from his cover story. The interrogators decided to try isolating Qahtani to see if a lack of social support from other detainees might make him more compliant. They moved him to the maximum-security facility at Camp Delta on July 27, but Qahtani’s resistance didn’t change.

Frustrated, the case agent decided that he needed the help of Ali Soufan, the crack FBI agent whose questioning of Abu Zubaydah had identified Sheikh Mohammed and José Padilla.

•  •  •  

Four lawyers from the Office of Legal Counsel were seated around a coffee table on a couch and two overstuffed chairs. They had gathered in the office of Jay
Bybee, the assistant attorney general in charge of the unit, for one last debate about CIA interrogation tactics.

The resolution of the “severe pain” issue had dealt with only half of the restrictions in the antitorture laws. The infliction of “severe mental pain or suffering” that caused prolonged psychological harm was also illegal, and now the lawyers were wrestling with whether any of the proposed CIA practices violated that prohibition. The meanings were fairly explicit in the statutes—issuing threats of death, or inflicting pain that caused psychological problems, or using mind-altering drugs were all forbidden. So each proposed method had to be checked against those restrictions.

Even before the meeting was called, the lawyers had tossed out one of the CIA’s suggestions without much debate—interrogators could not bury detainees alive. While the coffins would have hidden oxygen tanks and cameras to watch for trouble, the people inside wouldn’t know about those safeguards or of their interrogators’ intent to pull them out if necessary. Clearly, the lawyers agreed, the tactic constituted a threat of death, so it was illegal. Also, warning detainees that they might be turned over to other countries for torture—something the CIA had already done—was against the law.

All but one of the other tactics passed muster. Slapping, stress positions, confinement, sleep deprivation—none of those, the lawyers decided, caused prolonged mental harm. A technique called “walling”—in which a thick collar would be placed around a detainee’s neck and used to slam him into a wall—was also acceptable, so long as the wall was false and flexible. But one method remained that John Yoo feared
could
cross the line.

“I’m concerned that the waterboarding measure might violate the statute,” he told the others. “I don’t have a problem with the other ones. I don’t think they come close. But that one, it’s either on the line or it’s a little over the line.”

The problem, Yoo said, was twofold. Since waterboarding creates the sensation of drowning, couldn’t that be considered as a threat of death? Also, he and Jennifer Koester had reviewed records from the military’s SERE training, in which soldiers and seaman were subjected to waterboarding. While there were no instances of long-term physical damage, some percentage of the subjects felt so traumatized by waterboarding that they requested psychological counseling.

“If soldiers are experiencing psychological issues from a controlled exposure to waterboarding, then we really have to consider what it would mean when it’s used in a real interrogation,” Yoo said.

It might be still possible for the CIA to use waterboarding, Yoo said, but
only if the issue was kicked up to the president. Under his commander-in-chief powers, Bush had the authority to order actions he deemed to be of military necessity. If he instructed the agency to conduct waterboarding, Yoo said, then it might make a technical violation of the antitorture statute allowable.

Bybee and another lawyer, Pat Philbin, disagreed.

“I don’t think we need to address the constitutional issue, because I think under our statutory analysis, it’s okay to do,” Philbin said.

Yoo sat back on the couch. “Look, if it’s something we’re doubtful about, we should go ahead and discuss the constitutional side of it, because there could be disagreement,” he said. “There may be people who think it’s a violation of the statute. And in that case, we haven’t provided a complete answer about the legal issue.”

The two lawyers stuck to their guns. “We’re headed in a circle here,” Bybee said. “Let’s mull it over.”

•  •  •  

The next day, Bybee contacted Yoo.

“I thought about it, let’s go ahead and do it,” he said. “Write up the constitutional issue.”

In a few days, the language was inserted into the next draft of the memo analyzing the CIA interrogation procedures. The president had the constitutional power in a time of war, it read, to order the performance of actions that otherwise might be deemed a violation of the relevant part of the antitorture statute—Section 2340A.

“We conclude,” the memo said, “that the Department of Justice could not enforce Section 2340A against federal officials acting pursuant to the President’s constitutional authority to wage a military campaign.”

Not only were prosecutors prohibited from charging the interrogators with a crime, but no laws—none—could be used to restrict Bush’s directive.

“Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the President,” the memo said. “Just as statutes that order the President to conduct warfare in a certain manner for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.”

Now the lawyers were satisfied with the verdict on waterboarding. The technique, the memo said, was legal. But even if it wasn’t, the president could order waterboarding, and nothing in the law could stop him.

•  •  •  

In his large corner office at Shearman & Sterling, Tom Wilner was behind his desk, angrily gripping a small sheaf of papers. It was past 2:00
P.M.
on July 31, and federal judge Colleen Kollar-Kotelly had just handed down her ruling in the
Rasul
and
al-Odah
cases, brought by Wilner and other defense lawyers on behalf of several Guantanamo detainees. The decision was a slam dunk for the government.

She could not consider the merits of either case, Kollar-Kotelly wrote, because she had no authority over foreigners held at Guantanamo. “As the Court finds that no court would have jurisdiction to hear these actions, the Court shall dismiss both suits with prejudice.”

With prejudice.
While the lawyers could appeal her decision, Kollar-Kotelly was barring them from ever refiling a petition.

As Wilner flipped each page, his rage grew. Not only was Kollar-Kotelly wrong, he thought; she was misrepresenting the case law to maneuver her way to what seemed like a predetermined outcome.

Guantanamo was not a United States territory, just a place that America leased—even though it had full control and authority there, and refused to comply with Cuban demands to nullify the treaty. Wilner felt sure that the
Ralpho
case, which established that the United States was required to grant rights to residents in Micronesia after World War II, established that an area where America was in control but had no sovereignty was governed by the Constitution. But, no—Kollar-Kotelly flipped
Ralpho
on its head: The ruling in that case had compared the status of Micronesia with that of American territories like Guam. Therefore, she concluded, Micronesia was, for legal analysis, a territory of the United States and Guantanamo was not. Wilner read that portion of the decision several times, dumbstruck; it made no sense.