Dirty Wars (18 page)

To develop new tactics, Rumsfeld and his team looked inward at the very program used to train US forces in how to resist enemy torture. As JSOC reviewed the “failures” of the interrogation program the CIA and DIA were running at Bagram Airfield in Afghanistan, Rumsfeld and his team soon began reviewing the possibility of taking interrogation of enemy combatants captured on the battlefield to the next level. The SERE program, they believed, could be
reverse-engineered
. The medieval tactics they had studied from history's greatest torturers would be their new interrogation manual. “We are at war with an enemy that has
flagrantly violated the laws of war
,” Rumsfeld had declared in late 2001. “They do not wear uniforms. They hide in caves abroad, and among us here at home.” While denouncing the “enemy's” disregard for the laws of war, Rumsfeld and his team were preparing to follow suit. As early as December 2001, Rumsfeld's office began asking JPRA for assistance in detainee “
exploitation
.”

Initially, the leadership at JPRA headquarters pushed back on Rumsfeld's requests to export their training tactics into the interrogation chambers of the war on terror. In a two-page memo to the Pentagon's general counsel, JPRA warned against using SERE's “torture” tactics on enemy prisoners. “The requirement to obtain information from an uncooperative source as quickly as possible—in time to prevent, for example, an impending terrorist attack that could result in loss of life—has been forwarded as a compelling argument for the use of torture.... In essence, physical and/or psychological duress are viewed as an alternative to the more time-consuming conventional interrogation process,” JPRA's command asserted. “The error
inherent in this line of thinking is the assumption that, through torture, the interrogator can extract reliable and accurate intelligence. History and a consideration of human behavior would appear to refute this assumption.” JPRA noted that “upwards of 90 percent of interrogations have been successful” by developing a rapport with the detainee, and warned that after being subjected to harsh interrogation techniques, a prisoner's resolve to resist cooperation is strengthened. JPRA's memo noted that eventually, if tortured enough, prisoners “will provide answers that they feel the interrogator is seeking. In this instance, the information is
neither reliable nor accurate
.”

But Rumsfeld and his team forged ahead. Feith and other Defense officials instructed JPRA to begin providing detailed information on the SERE program to US interrogators. By early 2002, JPRA began briefing DIA personnel on “
detainee resistance
, techniques, and information on detainee exploitation.” Meanwhile, the senior SERE psychologist, Dr. Bruce Jessen, who was also a CIA contractor, began developing an “
exploitation plan
” for the Agency's interrogators to receive instructions on how to use SERE tactics on detainees. In early July 2002, CIA interrogators began
receiving training
from SERE instructors and psychologists on extreme interrogation tactics. Later that month, Rumsfeld's office requested documents from JPRA, “including excerpts from SERE instructor lesson plans, a list of physical and psychological pressures used in SERE resistance training, and a memo from a SERE psychologist assessing the long-term psychological effects of SERE resistance training on students and the
effects of waterboarding
,” according to a Senate Armed Services Committee investigation. “The list of SERE techniques included such methods as sensory deprivation, sleep disruption, stress positions, waterboarding, and slapping. It also made reference to a section of the JPRA instructor manual that discusses ‘coercive pressures,' such as keeping the lights on at all times, and treating a person like an animal.” The Pentagon's deputy general counsel for intelligence, Richard Shiffrin, acknowledged that the Pentagon wanted the documents in order to “reverse-engineer” SERE's knowledge of enemy torture tactics for use against US detainees. He also described how JPRA provided interrogators with documents about “
mind-control experiments
” used on US prisoners by North Korean agents. “It was real ‘Manchurian Candidate' stuff,” Shiffrin said. JPRA's commander also sent the
same information
to the CIA.

The use of these new techniques was discussed at the
National Security Council
, including at meetings attended by Rumsfeld and Condoleezza Rice. By the summer of 2002, the War Council legal team, led by Cheney's consigliere, David Addington, had developed a legal rationale for redefining torture so narrowly that virtually any tactic that did not result in death
was fair game. “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
,” Assistant Attorney General for the Office of Legal Counsel Jay Bybee asserted in what would become an infamous legal memo rationalizing the torture of US prisoners. “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.” A second memo signed by Bybee gave
legal justification
for using a specific series of “enhanced interrogation techniques,” including waterboarding. “There was not gonna be any
deniability
,” said the CIA's Rodriguez, who was coordinating the interrogation of prisoners at the black sites. “In August of 2002, I felt I had all the authorities that I needed, all the approvals that I needed. The atmosphere in the country was different. Everybody wanted us to save American lives.” He added, “We went to the border of legality. We went to the border, but that was within legal bounds.”

In September 2002, the congressional leadership was briefed on these
specific interrogation techniques
. Some Democrats, including Representative Nancy Pelosi, would later say that they were
never briefed
on the use of waterboarding. The CIA briefers and her Republican colleagues
claimed otherwise
, adding that none of the House and Senate leaders briefed on the method raised any objections to it. Pelosi later clarified that, at the time, she had been briefed on the tactic of waterboarding, but not its active use in interrogations. Whatever the truth, the torture program was now operating at full speed and, as far as the White House was concerned, with the legal backing of the US government. “Instead of co-opting these [al Qaeda] operatives and bringing them to our side, we used SERE methodologies, which are purely enemy methodologies,” recalled Nance. “Taking those and inverting them and then taking them way past the safety margins...completely breaks the moral fiber of anyone who raises their hand in oath to support and defend the constitution of the United States.”

Years after the black sites had been established and scores of prisoners were shuttled through them, the International Committee of the Red Cross compiled testimonials of fourteen prisoners who had survived.
Some were snatched
in Thailand, others in Dubai or Djibouti. Most were taken in Pakistan. The ICRC report described what would happen once US forces took a prisoner:

The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination)
would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees) was also administered at that moment.

The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied....

The detainee would be shackled by [the] hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times...ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate and defecate into the diaper.

According to the ICRC, some of the prisoners were bounced around to different black sites for more than three years, where they were kept in “continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards.” The US personnel guarding them wore masks. None of the prisoners was ever permitted a phone call or to write to inform their families they had been taken. They simply vanished.

During the course of their imprisonment, some of the prisoners were confined in boxes and subjected to prolonged nudity—sometimes lasting for several months. Some of them were kept for days at a time, naked, in “stress standing positions,” with their “arms extended and chained above the head.” During this torture, they were not allowed to use a toilet and “had to defecate and urinate over themselves.” Beatings and kickings were common, as was a practice of placing a collar around a prisoner's neck and using it to slam him against walls or yank him down hallways. Loud music was used for sleep deprivation, as was temperature manipulation. If prisoners were perceived to be cooperating, they were given clothes to wear. If they were deemed uncooperative, they'd be stripped naked. Dietary manipulation was used—at times the prisoners were put on liquid-only diets for weeks at a time. Three of the prisoners told the ICRC they had been waterboarded. Some of them were moved to as many as
ten different sites
during their imprisonment. “I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied,” one prisoner, taken early on in the war on terror, told the ICRC. “I felt like they were
experimenting
and trying out techniques to be used later on other people.”

As the CIA began applying SERE tactics on more detainees at its black sites, Rumsfeld was not content with the Agency running interrogations. In late 2002, JSOC formed a task force to draw up plans for a potential role for its personnel in interrogating “
designated unlawful combatants
.” The CIA was
reporting to the White House
—specifically Cheney's office—on its progress in using SERE tactics at its black sites, but JSOC could provide far greater flexibility and far less oversight. JSOC operators were tapped by the White House to participate in a parallel interrogation program known by its unclassified code name as
Copper Green
. Internally, the program was called Matchbox. Interrogation would be one of their key tactics, but Cheney and Rumsfeld had much broader plans for a new, unaccountable way of waging a global, secret war.

WITHIN THE US LAWS
governing military and intelligence operations, there are gray areas. Title 50 of the US code, or federal law, sets out the rules and structures for intelligence operations, while Title 10 covers military actions. The code under which a particular operation is performed has serious implications for oversight and accountability. The terms “covert” action and “clandestine” operations are often thrown around as though they mean the same thing. They do not. “Covert action” is a doctrinal and legal term that, broadly speaking, refers to an activity whose sponsorship is meant to be a secret. It is meant to provide the United States with “plausible deniability.” Such operations are extremely risky—not just in terms of the operational danger, but because they often involve secret US agents conducting operations inside the borders of a sovereign country without alerting its government. If the operation is exposed or disrupted, the potential for scandal is very real. The
legal definition of covert action
, according to Title 50, is “An activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.” A covert action requires a presidential finding and for the White House to brief the House and Senate Intelligence Committees on its contents. This briefing must occur before the covert action unless there are “extraordinary circumstances.” The requirements for congressional involvement were established to
prevent scandals
such as the Bay of Pigs invasion of Cuba and Iran-Contra. Those operations were passionately supported by Cheney and Rumsfeld. Although they no doubt regretted the fact that Iran-Contra became public and stirred controversy, they did not regard the operation itself as a scandal but rather as a model for how the United States should conduct its dirty business.

Military doctrine defines another class of activities, “
clandestine operations
,” in which the point of secrecy is to protect the integrity of the mission, not to conceal its sponsor, the US government. The military may conduct operations that are both covert and clandestine, but these are rare. Unlike covert actions, clandestine operations do not require a presidential finding if “future hostilities” are “anticipated” in the country where they are taking place. Nor is the administration required to report the operation to Congress. Such operations are defined as “
Traditional Military Activities
” and offer the intelligence committees
no real-time oversight rights
. Under US law, the military is not required to disclose the specific actions of an operation, but the US role in the “overall operation” should be “apparent” or eventually “acknowledged.”

From where Rumsfeld and Cheney were sitting, the United States was at war, and the world was a battlefield. Therefore, hostilities were “anticipated” in every country on earth, necessitating dozens if not hundreds of potential “Traditional Military Activities” across the globe. Cheney and Rumsfeld realized that by using JSOC—a black-ops force whose activities arguably straddled both Title 10 and Title 50—they could operate in the crevice separating US military and intelligence law. Much of JSOC's operations could be classified under military doctrine as “
Preparing the Battlespace
,” which is defined by the US Special Operations Command as “the umbrella term for all activities conducted prior to D-Day, H-Hour to plan and prepare for potential follow-on military operations...in likely or potential areas of employment, to train and prepare for follow-on military operations.” Such activities could be conducted as Advance Force Operations (AFOs), which are “military operations conducted by forces which precede the main elements into the area of operations to prepare for follow-on operations.” Unlike CIA operations, AFOs can be carried out with minimal external oversight—for a significant period of time—prior to an “overt” hostility, or for a “contingency” that may or may not occur.