Torture: Stress hooding noise nudity dogs

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Stress hooding noise nudity dogs

It was the young officials at Guantánamo who dreamed up a list of new aggressive interrogation techniques, inspired by Jack Bauer from the TV series, 24. But it was the politicians and lawyers in Washington who set the ball rolling. Philippe Sands follows the torture trail right to the top

Philippe Sands

The Guardian,

Saturday April 19 2008

On Tuesday, December 2 2002, Donald Rumsfeld signed a piece of paper that changed the course of history. That same day, President Bush signed a bill to put the Pentagon in funds for the next year. The US faced unprecedented challenges, Bush told a large and enthusiastic audience, and terror was one of them. The US would respond to these challenges, and it would do so in the "finest traditions of valour". And then he signed a large increase in the defence budget.

Elsewhere in the Pentagon, an event took place for which there was no comment, no fanfare. With a signature and a few scrawled words, Rumsfeld reneged on the tradition of valour to which Bush had referred. Principles for the conduct of interrogation, dating back more than a century to President Lincoln's famous instruction of 1863 that "military necessity does not admit of cruelty", were discarded. He approved new and aggressive interrogation techniques that would produce devastating consequences.

The document had been drafted a few days earlier by the general counsel at the Defence Department, William J Haynes II (known as Jim Haynes), Rumsfeld's most senior lawyer. The Haynes memo was addressed to Rumsfeld and copied to two colleagues: General Richard Myers, chairman of the joint chiefs of staff and the most senior military official in the US, and Doug Feith, under-secretary of defence for policy and number three at the department.

Attached to the memorandum were four short documents.

• The first was a legal opinion written by Lieutenant Colonel Diane Beaver, a staff judge advocate at Guantánamo.
  
• The second, a request for approval of new methods of interrogating detainees from Beaver's boss, Major General Mike Dunlavey, the army's head of interrogation at Guantánamo.
• The third was a memorandum on similar lines from General Tom Hill, commander of US Southern Command (Southcom, covering Central and South America).
  
• Last, and most important, was a list of 18 techniques of interrogation, set out in a three-page memorandum.

These techniques were new to the military.

• Category I comprised two techniques, yelling and deception.
  

• Category II included 12 techniques, aiming at humiliation and sensory deprivation, including
  
• stress positions, such as standing for a maximum of four hours;
  
• isolation;
  
• deprivation of light and sound;
  
• hooding;
  
• removal of religious and all other comfort items;
  
• removal of clothing;
  
• forced grooming, such as shaving of facial hair; and the use of
  
• individual phobias, such as fear of dogs, to induce stress. Finally came

• Category III. These methods were to be used for only a very small percentage of detainees - the most uncooperative (said to be fewer than 3%) and exceptionally resistant individuals - and required approval by the commanding general at Guantánamo. In this category were four techniques:
  
• the use of "mild, non-injurious physical contact", such as grabbing, poking and light pushing;
  
• the use of scenarios designed to convince the detainee that death or severely painful consequences were imminent for him or his family;
  
• exposure to cold weather or water; and, finally,
  
• the use of a wet towel and dripping water to induce the misperception of suffocation. This last technique came to be known as water-boarding, described on a chat show by the vice-president, Dick Cheney, as a "dunk in the water" and a "no-brainer" if it could save lives.

The Haynes memo recommended "blanket approval" of 15 of the 18 techniques, including just one of the four techniques listed in Category III: mild, non-injurious physical contact. However, he did not reject the others, nor did he advise that they were contrary to the Geneva conventions. Rumsfeld signed his name next to the word "Approved", and added his comment at the bottom of the page: "I stand for eight to 10 hours a day. Why is standing limited to four hours?"

The techniques were devised with at least one specific detainee in mind. Detainee 063 had been refused entry to the US just before 9/11 and captured in Afghanistan in November 2001. In January 2002 he joined the first captives to be transported to Guantánamo, one of a group labelled by the administration as "the worst of the worst".

"The faster we can interrogate these people and identify them, and get what they have in them out of them, in as graceful a way as is possible," Rumsfeld said,"we have a better chance of saving some people's lives."

When the Haynes memo reached Guantánamo on December 2, Detainee 063 was in an isolated, plywood interrogation booth at Camp X-Ray.

• He was bolted to the floor and secured to a chair, his hands and legs cuffed.
  
• He had been held in isolation since August 8, nearly four months earlier.
  
• He was dehydrated and in need of regular hook-ups to an intravenous drip.
  
• His feet were swollen.
  
• He was urinating on himself.

During Detainee 063's first few months at Guantánamo, the interrogators had followed established practices for military and law enforcement interrogations. Building rapport is the overriding aim of the US Army Field Manual 34-52, the rule book for military interrogators, colloquially referred to as "FM 34-52". Legality was also essential, which meant operating in accordance with the rules set out in the US military's Uniform Code of Military Justice and international law, in particular the four Geneva conventions.

At the heart of them lies "Common Article 3", which expressly prohibits cruel treatment and torture, as well as "outrages upon personal dignity, in particular, humiliating and degrading treatment". Tactics that had conformed to these principles changed dramatically. The interrogation log describes what happened immediately after Rumsfeld signed the Haynes memo.

The pattern was always the same:

20-hour interrogation sessions, followed by four hours of sleep. Sleep deprivation appears as a central theme, along with stress positions and constant humiliation, including sexual humiliation. These techniques were supplemented by the use of water, regular bouts of dehydration, the use of IV tubes, loud noise (the music of Christina Aguilera was blasted out in the first days of the new regime), nudity, female contact, pin-ups. An interrogator even tied a leash to him, led him around the room and forced him to perform a series of dog tricks. He was forced to wear a woman's bra and a thong was placed on his head.

Rumsfeld led the charge for war in Iraq; in part he did so because of Saddam Hussein's contempt for human life. "Torture is systematic in Iraq, and the most senior officials in the regime are involved," Rumsfeld said, a few months before Saddam was overthrown. "Electric shock, eye gouging, acid baths, lengthy confinement in small metal boxes are only some of the crimes committed by this regime." He spoke those words one day after secretly signing the Haynes memo and approving his own techniques of aggressive interrogation at Guantánamo.

Ironically, it was the Iraq war - in particular, events at Abu Ghraib prison - that brought the Haynes memo into the open two years later. By the autumn of 2003, Abu Ghraib was being run by the US as a detention facility. On April 28 2004, a CBS television report revealed the nature and scale of abuse being inflicted upon Iraqi prisoners. Photographs taken by US military participants were published, including one, now notorious, showing a prisoner standing on a box with his head covered and wires attached to his fingers. Another showed Private Lynndie England holding a leash tied to the neck of a naked man on the floor.

Was there a connection between the abuses at Abu Ghraib and the Bush administration's secret interrogation policies at other places, including Guantánamo? In June 2004, President Bush, hosting the G8 summit in Savannah, Georgia, was asked by the media if he had authorised any kind of interrogation techniques necessary to pursue the "war on terror"? No, he said, his authorisation was that anything the US did would conform to US law and be consistent with international treaty obligations. "We're a nation of law. We adhere to laws. We have laws on the books."

Four days later, the administration unexpectedly declassified and released a number of documents relating to interrogation in the belief that this would reflect the thorough process of deliberation that, it was claimed, took place, and demonstrate a commitment to the rule of law. At the briefing, conducted by three lawyers from Bush's inner circle, Alberto Gonzales, the president's counsel, Jim Haynes from the Defence Department, and his deputy, Dan Dell'Orto, it was made clear that particular documents were crucial: the Haynes memo, and a decision taken a few months previously by the president, on February 7 2002, that none of the detainees at Guantánamo, whether Taliban or al-Qaida, could rely on any of the protections granted by the Geneva conventions, not even Common Article 3.

The second set of documents were legal opinions issued on August 1 2002. One of these, by two senior lawyers at the Justice Department, concluded that physical torture occurred only when the pain was "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death". Mental torture required "lasting psychological harm". The memo concluded that torture of suspected terrorists under interrogation would not be unlawful if it could be justified on grounds of necessity or self-defence.

On October 11 2002, Guantánamo had request that additional techniques beyond those in FM 34-52 be approved for use against high-value detainees, in particular a Saudi Arabian, Mohammed al-Qahtani - otherwise known as Detainee 063. The underlying message of the briefing was spelled out: Rumsfeld had merely responded to a request from Guantánamo, and in doing so had acted reasonably. By contrast, the abuses at Abu Ghraib were unauthorised and unconnected to actual policies.

Much later, in March 2006, Time magazine published on its website the interrogation log of Detainee 063. Some of the Abu Ghraib images bore a resemblance to what Detainee 063 had been through: humiliation, stress, hooding, nudity, female interrogators, shackles, dogs. Was this just a coincidence?

A few days after the president made his decision that the detainees were not covered by the Geneva conventions, Rumsfeld appointed the head of military interrogations at Guantánamo - Major General Michael E Dunlavey, a reservist, in civilian life a judge in Erie, Pennsylvania. Rumsfeld told Dunlavey to report directly to him on a weekly basis, bypassing the usual chain of command. When we met, I asked Dunlavey about the mission Rumsfeld gave him. He paused. "He wanted me to maximise the information. He wanted me to identify who was there and get the intelligence, to prevent the next 9/11."

When Dunlavey arrived at Guantánamo, "plane loads" of detainees were being delivered on a daily basis. Many posed no threat; some were very elderly; others posed a serious threat. The focus of attention soon shifted to Mohammed al-Qahtani. Dunlavey had no doubts about his identity or the threat he posed: al-Qahtani was the 20th hijacker on September 11. (How many "20th hijackers" are there, I asked, alluding to Zacarias Moussaoui, who'd recently been convicted. Dunlavey smiled.) "This guy may have been the key to the survival of the US," he told me. By August, Dunlavey was clear that the rule book FM 34-52 was too restricting for someone like al-Qahtani, who was trained to resist interrogation. In his memo of October 11 2002 he set out the key facts as he saw them. The usefulness of the existing techniques had been exhausted. Some detainees had more information. He requested that aggressive new techniques be approved.

Dunlavey told me that at the end of September a group of the most senior Washington lawyers visited Guantánamo, including David Addington, the vice president's lawyer, Gonzales and Haynes. "They brought ideas with them which had been given from sources in DC." When the new techniques were more or less finalised, Dunlavey needed them to be approved by Lieutenant Colonel Diane Beaver, his staff judge advocate in Guantánamo. "We had talked and talked, brainstormed, then we drew up a list," he said. The list was passed on to Diane Beaver."

Apart from Beaver's legal input, no one else seemed to have provided any detailed legal advice on the new techniques. It seemed strange that on so important a decision the legal advice of a relatively junior lawyer, with limited experience of these issues, could be definitive. Several months passed before I met Beaver. By then, like Dunlavey, she was being sued in American courts, although the cases were later dropped.

Beaver told me she arrived in Guantánamo in June 2002. In September that year there was a series of brainstorming meetings, some of which were led by Beaver, to gather possible new interrogation techniques. Ideas came from all over the place, she said. Discussion was wide-ranging. Beaver mentioned one source that I didn't immediately follow up with her: "24 - Jack Bauer."

It was only when I got home that I realised she was referring to the main character in Fox's hugely popular TV series, 24. Bauer is a fictitious member of the Counter Terrorism Unit in LA who helped to prevent many terror attacks on the US; for him, torture and even killing are justifiable means to achieve the desired result. Just about every episode had a torture scene in which aggressive techniques of interrogations were used to obtain information.

Jack Bauer had many friends at Guantánamo Bay, Beaver said, "he gave people lots of ideas." She believed the series contributed to an environment in which those at Guantánamo were encouraged to see themselves as being on the frontline - and to go further than they otherwise might.

Under Beaver's guidance, a list of ideas slowly emerged. Potential techniques included

• taking the detainees out of their usual environment, so they didn't know where they were or where they were going;
  
• the use of hoods and goggles;
  
• the use of sexual tension, which was "culturally taboo, disrespectful, humiliating and potentially unexpected";
  
• creating psychological drama.

• Beaver recalled that smothering was thought to be particularly effective, and that Dunlavey, who'd been in Vietnam, was in favour because he knew it worked.
  

• The younger men would get particularly agitated, excited even: "You could almost see their dicks getting hard as they got new ideas." A wan smile crossed Beaver's face. "And I said to myself, you know what, I don't have a dick to get hard. I can stay detached."

Beaver confirmed what Dunlavey had told me, that a delegation of senior lawyers came down to Guantánamo well before the list of techniques was sent up to Washington. They talked to the intelligence people, they even watched some interrogations. The message from the visitors was that they should do "whatever needed to be done", meaning a green light from the very top - from the lawyers for Bush, Cheney, Rumsfeld and the CIA.

By the first week of October, the list of 18 techniques was more or less completed and it fell to Beaver to provide the legal sign-off. She was conscious of her relatively lowly position - "the dirt on the ground", as she put it, too self-deprecatingly - but also acutely aware of the time constraints, the pressures. Relations with Dunlavey were now very tense. It was rumoured that Dunlavey was leaving, that he'd become paranoid, lost the plot. She tried getting help from more senior lawyers in Florida and Washington, but got nowhere. So she ploughed on alone, proceeding methodically through the 18 techniques. Each was tested against the standards set by US law, namely,

• the Eighth Amendment of the constitution (which prohibited "cruel and unusual punishments"),
  
• the federal Torture Statute, and
  
• the military law of the Uniform Code of Military Justice. Her standard was elastic. The federal Torture Statute, she wrote, would not be violated so long as none of the proposed techniques was "specifically intended to cause severe physical pain or suffering or prolonged mental harm". Legality was thus boiled down to intent.

The techniques were justified because there was "a legitimate governmental objective in obtaining the information for the protection of the national security of the United States". The ends always justified the means. Rumsfeld had described the detainees as "the worst of the worst"; Beaver herself had unambiguous views about some of them. "Psychopaths," she told me. "Skinny, runty, dangerous, lying psychopaths."

Beaver explained what she had tried to do, and her sense of shock about the way in which her advice was made public. "They gave me an hour's notice, no warning, no preparation." They left her name on the advice when they released it; Haynes could have blacked it out but didn't. She took the flak and the lawsuits personally.

General James T Hill visited Guantánamo a week before he took over command of Southcom in August 2002. He had not closely followed all the comings and goings over new interrogation techniques, but he had become increasingly concerned about a "dysfunctional" command leadership. He worried that the full intelligence value of the detainees may not be fully exploited. He was also concerned that the interrogators hadn't been properly trained. "They were just kind of swimming by themselves," he said. However, he was not happy about the suggestion from the Pentagon that he should be the one to approve the new techniques. "I said no, no, no. This is way too important to leave at our level." He pushed the decision back to Washington.

Hill's memo reached General Dick Myers, chairman of the joint chiefs of staff, the most senior person in the US armed forces, on October 25 2002. "There was a sense of urgency that in my 40 years of military experience hadn't existed in other contingencies," he explained when we met. There was the real fear that one of the detainees may know when the next attack would happen, and that they would miss vital information.

The first big decision was Geneva. For historic, cultural and training reasons, Myers insisted that the Geneva conventions should apply, even to a rogue, lawless actor such as al-Qaida. It became clear to me that Myers was a little confused about the decision that was actually taken. He claimed to be satisfied with the president's decision of February 7 2002. "After all the arguments were done, the decision was, we don't think it applies in a technical sense, but we're going to behave as if it does." That wasn't what the president decided.

The actual decision distinguished between the Taliban - to whom Geneva applied, although detainees could not invoke rights under it because they were not wearing uniforms or insignia - and al-Qaida, to whom it didn't apply at all because they were not a state. Had Myers understood what had been decided? Did he appreciate the consequences for interrogation techniques? If the chairman of the joint chiefs of staff was confused, then inevitably soldiers in the field would also be confused. As one seasoned observer of military affairs put it to me, Myers was "well and truly hoodwinked".

So what did Myers think about the new techniques? "We thought, OK, all the techniques came out of the book, there weren't any techniques invented." I stopped him.

"Out of which book?" I asked.

"Out of 34-52," he replied. "I think all of these are in the manual." They were not - not one of them. "They aren't?" he asked, surprised. Not only that, but most of them violated Geneva's Common Article 3. Such an answer from the chairman of the joint chiefs surprised me.

As we worked through the list of techniques, Myers became increasingly hesitant and troubled. At forced grooming and dogs he became defensive. "Dogs were only to be present, never to be..." his words tailed off. "When you see this, you say, holy mackerel," he exclaimed. "We never authorised torture, we just didn't. Not what we would do." Little by little, my understanding of Myers's role was becoming more focused. He hadn't pushed for these new techniques, but he didn't resist them, either. He didn't inquire too deeply.

With Rumsfeld's verbal approval and Haynes's support, the interrogation of al-Qahtani began. The interrogation log for November 23 2002 recorded the first moment. "The detainee arrives at the interrogation booth at Camp X-Ray. His hood is removed and he is bolted to the floor."

Meanwhile alarm bells were ringing with the FBI. One of the FBI's behavioural psychologists called headquarters in Washington. Concerns were raised by an FBI special agent who arrived to find al-Qahtani already "incarcerated in a darkened cell in the naval Brig". He was interrogated by the FBI, and the plan was for military personnel to continue for 24 hours straight. The FBI agent objected, but was told that this technique was approved by "the Secretary", meaning Rumsfeld.

The agent described how "the reservists yelled and screamed" at al-Qahtani, and "a German shepherd was positioned at the door of the interrogation hut and made to growl and bark at the detainee". At one point, a copy of the Qur'an was placed in front of al-Qahtani while he was handcuffed to a chair, and an interrogator "straddled the Qur'an". The detainee became very angry, but still refused to provide any information.

The FBI agent was not the only one with concerns. Mike Gelles, a clinical forensic psychologist, had worked since 1990 for the Naval Criminal Investigative Service, the primary law enforcement and intelligence arm of the US Navy. He first visited Guantánamo in February 2002, and had concerns from the outset.

By June, the numbers at Guantánamo had grown to more than 500 detainees and interrogations were underway. Were they getting any useful information? The expression on Gelles's face suggested not. Even assuming that they had the right people, nobody discovered what they knew. "I remember being down in Camp X-Ray and wandering around," Gelles recalled, "and seeing a couple of very psychotic folks, and thinking, 'What's going on here, why would you fly a guy who's flagrantly psychotic from Afghanistan to Guantánamo Bay?' It didn't make any sense." Gelles thought that Beaver had tried to rein in some of the greater excesses. "She tried to cool it, but basically she was so immersed and so lost..." Gelles' words trailed off. "She drank the Kool-Aid."

His chief doubts were that the new techniques would produce "unreliable information" - unusable in any court case against al-Qahtani - that they were immoral and they'd "set a pattern that was clearly going to impact our folks overseas when they were captured".

It was because of sustained pressure from dissenters at Guantánamo, such as Gelles and the FBI agent, and in particular Alberto Mora, the navy's top counsel at the Pentagon, that Rumsfeld rescinded the new interrogation techniques on January 15 2003. Subsequently a working group was set up; it approved a revised set of interrogation techniques, which were less harsh than those rescinded but which nevertheless contributed to a climate that was tolerant of abuse.

After 54 days of interrogation using the new aggressive techniques, what information did al-Qahtani give up? In June 2004, Gonzales, Haynes and Dell'Orto told the assembled media that the new techniques had worked and America was a safer place:

• al-Qahtani had admitted he had met Osama bin Laden,
  
• that he knew one of the 9/11 pilots, and
  
• had been sent to the US by Khalid Sheikh Mohammed. It was also claimed that
  
• he had provided detailed information about a number of key people, including José Padilla, the dirty bomber, and
• Richard Reid, the British shoe bomber. No details were given to support these assertions.

On the face of it, al-Qahtani's interrogation log provided little support for any of these claims. (Nonetheless, he faces trial on terrorism charges at a military commission - possibly later this year.)

At the time al-Qahtani's aggressive interrogation began, Cal Temple, a Defence Department intelligence expert, was in charge of an exploitation team created to support interrogations at Guantánamo. Had the pressure from the Pentagon produced anything useful? A measured and thoughtful man, Temple chose his words with care, indicating a negative response to my question. "There was a lot of data of interest," he said. "It was contextual in nature, confirming in nature. Did it help us catch Osama bin Laden? No."

In that same June 2004 press briefing, Gonzales and Haynes went to great lengths to crush any suggestion of a connection between Guantánamo and Abu Ghraib. The facts, however, suggest that there was a link between the two places, and that the Haynes memo had a malign influence over time and distance.

One army investigator compared the treatment of al-Qahtani to that displayed so graphically in the Abu Ghraib photos. "Here's this guy manacled, chained down, dogs brought in, put [in] his face, told to growl, show teeth," he said of al-Qahtani, "If you had a camera and snapped that picture, you'd be back to Abu Ghraib."

In August 2003, General Miller made a trip from Guantánamo, where he had taken over as commander from Dunlavey, to Baghdad. He was accompanied by Diane Beaver. They visited Abu Ghraib and found shocking conditions of near-lawlessness. Miller made recommendations to General Ricardo Sanchez, the commander of Coalition Ground Forces in Iraq, to codify and develop proper interrogation techniques. Within two weeks, on September 14 2003, Sanchez signed a memorandum authorising new techniques that plainly violated the Geneva Conventions, and that were similar to those included in the Haynes memo, including environmental manipulation (temperature adjustment), the presence of military dogs, sleep management (four hours' sleep per 24-hour period) and stress positions. These would have been very familiar to al-Qahtani. The photographic evidence showed abuse beginning at Abu Ghraib on October 17 - one month later.

In August 2006, the Pentagon inspector general released his own damning report. This concluded unequivocally that interrogation techniques had migrated to Iraq because operations personnel believed traditional techniques were no longer effective for all detainees. The clear conclusions from the various reports - three in three years - reinforced what Gelles told me about "force drift", the situation where interrogators come to believe that if some force is good, then more will be even better. "If you let slip the dogs, they will run," was the way a former Defence Department official put it. And so they did, from Guantánamo, to Baghdad, to Basra.

A group of British soldiers were charged with allowing or participating in the abuse of Iraqi detainees in Basra in September 2003. The detainees there had been subjected to conditioning processes to prepare them for interrogation, involving "maintaining a stress position and deprivation of sleep whilst hooded and cuffed". One of the detainees died. At least one of the techniques (sleep deprivation) had been approved by Sanchez on September 14, just days after Miller's visit. Colonel Jorge Mendonca, the most senior officer charged, argued that he was advised that sleep deprivation, stress positions and other conditioning processes had been cleared by the chain of command. The Court Martial Board accepted this defence and dismissed the charges.

But the climate was changing. In June 2006, the Supreme Court overturned President Bush's decision on Geneva, ruling it to be unlawful. The court confirmed that Common Article 3 applied to all Guantánamo detainees. It was as simple as that. Whether they were Taliban or al-Qaida, every one of the detainees had rights under Common Article 3 - and that included Mohammed al-Qahtani.

The majority opinion, reaffirming the "minimal protection" offered by Common Article 3, was written by Justice John Paul Stevens. One of the Justices went even further: Common Article 3 was part of the law of war and of a treaty that the US had ratified. "By Act of Congress," Justice Anthony Kennedy wrote pointedly, "violations of Common Article 3 are considered 'war crimes', punishable as federal offences, when committed by or against United States nationals and military personnel."

Justice Kennedy's remark put the issue of war crimes on the American political agenda. Individuals who had contributed to a violation of Common Article 3 would know that they were at risk of criminal investigation and prosecution. Even more ominously, it underscored the risk of being investigated outside the US.

Parties to the International Torture Convention are required to investigate any person who is alleged to have committed torture. If appropriate, they must then prosecute - or extradite the person to a place where he will be prosecuted. The Torture Convention is also more explicit than Geneva in that it criminalises any act that constitutes complicity or participation in torture. Complicity or participation could certainly be extended not only to the politicians and but also the lawyers involved in the condoning of the 18 techniques. After all, the scheme applied to al-Qahtani was devised by lawyers, reviewed by lawyers, overseen by lawyers.

Philipe Sands QC is a practising barrister in the Matrix Chambers and a professor of international law at University College London

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