Notes Show Confusion on Interrogation Methods
June 18, 2008

By Mark Mazzetti and Scott Shane, The New York Times

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WASHINGTON — When military officers at Guantánamo Bay, Cuba, struggled in the fall of 2002 to find ways to get terrorism suspects to talk, they turned to the one agency that had spent several months experimenting with the limits of physical and psychological pressure: the Central Intelligence Agency.

They took the top lawyer for the C.I.A.’s Counterterrorist Center to Guantánamo, where he explained that the definition of illegal torture was “written vaguely.”

“It is basically subject to perception,” said the lawyer, Jonathan M. Fredman, according to meeting minutes released Tuesday at a Senate hearing. “If the detainee dies, you’re doing it wrong.”

The minutes of the October 2002 meeting give an extraordinary glimpse of the confusion among government lawyers about both the legal limits and the effectiveness of interrogation methods. The new documents also reveal for the first time the close collaboration between the C.I.A. and the Defense Department on harsh interrogation methods.

At the meeting, lawyers talked openly about the “need to curb the harsher operations” during visits from observers with the International Committee of the Red Cross and about moving some prisoners to keep them out of sight at those times.

And Mr. Fredman, the C.I.A. lawyer, warned his military counterparts never to videotape aggressive interrogations because they will “look ugly.” His comment came more than five years before the Justice Department opened a criminal investigation into the destruction of C.I.A. interrogation videotapes.

The hearing was the first in a series of sessions planned by the Senate Armed Services Committee, which has spent the last two years investigating the origins of the harsh methods that found their way to Iraq and Afghanistan.

Much of the hearing focused on how interrogation techniques used by the Pentagon to train military personnel to withstand the rigors of captivity were reverse engineered for use against detainees in American custody. The techniques, based on the treatment American prisoners might expect from cold war enemies, were used both by the C.I.A. at its secret overseas jails for suspected high-level members of Al Qaeda and at Guantánamo and other military detention centers.

A military psychologist who studies the effect of those techniques on American forces told the Senate panel how concerned he was upon learning in 2002 that one of the techniques, waterboarding, was being considered for use against terrorism suspects.

“I responded by asking, ‘Wouldn’t that be illegal?’ ” said the psychologist, Dr. Jerald Ogrisseg.

The military never used waterboarding, which simulates the experience of drowning, but the C.I.A. used it on three prisoners with the approval of the Justice Department.

The 2002 meeting at Guantánamo showed how C.I.A. lawyers believed they had found a legal loophole permitting the agency to use “cruel, inhuman or degrading” methods overseas as long as they did not amount to torture.

In “rare instances, aggressive techniques have proven very helpful,” Mr. Fredman said, according to the minutes.

A military lawyer at Guantánamo, Lt. Col. Diane Beaver, interjected, “We will need documentation to protect us.”

“Yes,” Mr. Fredman said, “if someone dies while aggressive techniques are being used, regardless of cause of death, the backlash of attention would be severely detrimental.”

The documents revealed deep divisions inside the military as the possibility of harsh methods was debated.

Three weeks after the October 2002 meeting, Mark Fallon, the deputy commander of the Criminal Investigation Task Force at Guantánamo, wrote an e-mail message expressing shock at the language of Mr. Fredman and others in the meeting minutes.

“This looks like the kinds of stuff Congressional hearings are made of,” Mr. Fallon wrote. “Someone needs to be considering how history will look back at this.”

Asked about Mr. Fredman’s reported remarks, a C.I.A. spokesman, George Little, said he could not comment on “purported remarks in an e-mail account of a meeting held nearly six years ago.” But Mr. Little said the C.I.A. interrogations had been approved by the Justice Department and “saved innocent lives.” (Mr. Fredman, now a lawyer for the director of national intelligence, was not available for comment.)

The hearing also provided rare public testimony from William J. Haynes II, the Defense Department’s general counsel until March, who sparred at length with senators seeking to pin on him some responsibility for the harsh tactics and the worldwide outrage they provoked.

Documents released Tuesday show that some of Mr. Haynes’s aides in July 2002 sought out information about aggressive interrogations.

Mr. Haynes fended off attacks by Democrats and some Republicans, noting that the Defense Department has 10,000 lawyers and saying he had no time to conduct legal research himself on which methods were permitted.

Moreover, Mr. Haynes said, “as the lawyer, I was not the decision maker. I was the adviser.”

Senator Jack Reed, Democrat of Rhode Island, said he thought Mr. Haynes’s advice had led American soldiers drastically astray. “You degraded the integrity of the United States military,” Mr. Reed said.

Even as Congress continued this week to rake over the Bush administration’s decisions in 2002, 17 former F.B.I., C.I.A. and military officers with interrogation experience gathered in Washington to discuss how interrogation programs should be revamped under the next president. Human Rights First, an advocacy group, organized the meeting in part because both Senators Barack Obama and John McCain, the expected presidential nominees, are outspoken opponents of harsh physical pressure in interrogation.

The Bush administration “took a serious wrong turn that led to terrible, terrible consequences,” said one of the former interrogators, Stuart A. Herrington, a retired Army colonel who conducted interrogations in Vietnam and Panama and during the Persian Gulf war of 1991.

“We need to get our act together and do this right going forward,” Mr. Herrington said.

 

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