Interrogation Techniques Revealed By the United States

A number of interrogation techniques have been discussed internally by the United States government as used of approved for use. They include standard Army methods in compliance with the Third Geneva Convention, as well as other approaches which are either questionable or clearly exceed the strictures protecting POWs. Several of the latter may also violate other limitations outside the scope of this article.

The Army Intelligence Interrogation Field Manual

Army FM 34-52, Intelligence Interrogation¹ is the Army’s standard for interrogation of captured enemy personnel. It was the basis for the initial interrogation techniques used at Guantanamo.² The DOD says that from January 11, 2002, when the first detainees arrived at Guantanamo "... doctrine contained in Field Manual 34-52 guided interrogations" until December 2002. It says that ...initial approaches governing interrogations at Guantanamo were in accordance with the standing doctrine outlined in FM 34-52. These procedures include 17 techniques such as direct questioning and providing incentives."³

That, Field Manual,, requires in Chapter 1, under the heading Prohibition Against Use of Force that:

The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorized nor. condoned by the US Government. Experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear. However, the use of force is not to be confused with psychological ploys, verbal trickery, or other nonviolent and noncoercive ruses used by the interrogator in questioning hesitant or uncooperative sources.

The psychological techniques and principles outlined should neither be confused with, nor construed to be synonymous with, unauthorized techniques such as brainwashing, mental torture, or any other form of mental coercion to include drugs. These techniques and principles are intended to serve as guides in obtaining the willing cooperation of a source. The absence of threats in interrogation is intentional, as their enforcement and use normally constitute violations of international law and may result in prosecution under the UCMJ.

Additionally, the inability to carry out a threat of violence or force renders an interrogator ineffective should the source challenge the threat. Consequently, from both legal and moral viewpoints, the restrictions established by international law, agreements, and customs render threats of force, violence, and deprivation useless as interrogation techniques.

In its discussion of proper interrogation techniques, FM 34-52 identifies two pertinent phases; approach and questioning. It notes that "...all approaches in interrogations have the following purposes in common: to establish and maintain control over the source and the interrogation; to establish and maintain rapport between the interrogator and the source; and to manipulate the source's emotions and weaknesses to gain his willing cooperation.⁴ It adds that "The number of approaches used is limited only by the interrogator's imagination and skill. Almost any ruse or deception is usable as long as the provisions of the Geneva Conventions are not violated. The Geneva Conventions do not permit an interrogator to pass himself off as a medic, chaplain, or as a member of the Red Cross (Red Crescent or Red Lion)."⁵

Interrogation then shifts to the questioning phase. "Although there is no fixed point at which the approach phase ends and the questioning phase begins, generally the questioning phase commences when the source begins to answer questions pertinent to the specific objectives of the interrogation."⁶ The questioning techniques discussed are not dissimilar to those found in domestic police investigations: the use of non-pertinent questions, for example, to conceal objectives or strengthen rapport, and of repeated questions to assess the source.⁷

The Development of Additional "Counter Resistance Strategies"

Following the creation of the detention center at Guantanamo Bay, interrogators apparently used methods approved by FM 34-52 but with limited success.⁸ By October, 2002, Joint Task Force authorities were seeking approval for the use of additional means.

The Request For Approval of Counter Resistance Strategies

In early October, 2002, Joint Task Force 170,⁹ the SouthCom entity charged with prisoner interrogation at Guantanamo Bay forwarded a Request for Approval of Counter Resistance Strategies¹⁰ of 11 October, 02¹¹. That, in turn, was forwarded to the Joint Chiefs of Staff by Commander SouthCom on 25 October, 02.¹²

The Request noted¹³ that "current" interrogation guidelines¹⁴ "limit the ability of interrogators to counter advanced resistance." It proposed three categories of interrogation techniques.¹⁵

Category I included an initial comfortable environment but if the detainee was determined by the interrogator to be uncooperative, could include 1) yelling (but not loudly enough to cause physical pain), and 2) techniques of deception including multiple interrogators and misidentification of the interrogator as a citizen of a foreign country "with a reputation for harsh treatment of detainees."

Category II, which required the permission of the General in Charge of the Interrogation Section, included "...the use of stress positions (like standing), for a maximum of four hours," the use of falsified documents or reports, solitary confinement for up to thirty days,¹⁶ interrogation in other than the standard interrogation booth, sensory deprivation,¹⁷ hooding with unrestricted breathing, "removal of all comfort items (including religious items)," feeding cold Army rations, removal of clothing, "forced grooming (shaving of facial hair etc.)," and "use of detainees individual phobias (such as fear of dogs) to induce stress."¹⁸

Category III techniques¹⁹ include the use of "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family," "exposure to cold weather or water (with appropriate medical monitoring),"²⁰ "use of a wet towel and dripping water to induce the misperception of suffocation,"²¹ and use of "mild, non injurious physical contact such as grabbing, poking in the chest with the finger and light pushing."

Approval of Additional Counter Resistance Techniques

On 2 December, 2002, Secreatry of Defense Rumsfeld,²² approved Category I and II techniques and the fourth technique in Category III ("mild, non-injurious physical contact").²³ The use of death threats to family, exposure to cold weather and water, and simulated drowning was not approved although DOD General counsel advised they "may be legally available."²⁴ A number of those techniques were apparently used.²⁵ On 15 January, 2003, Secretary Rumsfeld rescinded his approval of Category II and one Category III techniques pending a study by DOD General Counsel.²⁶ He noted that "Should you determine that particular techniques in either of these categories are warranted in an individual case, you should forward that request to me."²⁷ Approval of Category I techniques apparently remained in effect.

On 6 March the Working Group issued a Draft Report,²⁸ and on 4 April a final version of the document.²⁹

The Working Group Report

The Working Group consisted of representatives from a broader spectrum than the government’s prior analytical reports on interrogation.³⁰ They produced a document³¹ which, except for one central flawed assumption, is sophisticated, well wrought and legally supportable.³² That flawed assumption is the validity of the Presidential determination that the detainees were facially uncovered by the Third Geneva Convention.³³ Thus, the Report opines,³⁴ that:

Due to the unique nature of the war on terrorism in which the enemy covertly attacks innocent civilian populations without warning, and further due to the critical nature of the information believed to be known by certain of the al-Qaida and Taliban detainees regarding future terrorist attacks, it may be appropriate for the appropriate approval authority to authorize as a military necessity the interrogation of such unlawful combatants in a manner beyond that which may be applied to a prisoner of war who is subject to the protections of the Geneva Conventions.

Id at 3, (Emphasis added).

After extensive discussion³⁵ of domestic and international legal implications³⁶ the Working Group discusses considerations affecting policy.³⁷ That discussion noted the policies articulated by FM 34-52³⁸ and its predecessor, FM 30-15.³⁹:

The fundamental policy [of doctrine prior to FM 34-52] concerning intelligence operations...is that the commander may utilize all available resources and lawful means in the accomplishment of his mission and for the protection and security of his unit. However, a strong caveat to this principle noted "treaty commitments and policy of the United States, international agreements, international law and the UCMJ require the conduct of military to conform with the law of war." FM 30-15 also recognized that Army intelligence interrogations must conform to the "specific prohibitions, limitations and restrictions established by the Geneva Conventions...for the handling and treatment of personnel captured or detained by military forces."

Id at 51, emphasis added.⁴⁰

The Working Group also noted that FM 30-15 "emphasized a prohibition on the use of force during interrogations", including "...actual use of force, mental torture, threats and exposure to inhumane treatment of any kind."⁴¹ It pointed out that:

FM 30-15 stated that experience revealed that the use of force was unnecessary...and was a poor interrogation technique, given that its use produced unreliable information, damages future interrogations, and induced those being interrogateed to offer [false] information... However, [it said] that the prohibition on the use of force must not be confused with the use of psychological tools and deception techniques...

Id at 52.

In its discussion of FM 34-52, the Working Group noted that it had adopted the principles and framework for conducting interrogations of FM 30-15,⁴² and that it, along with the curriculum at the U.S. Army Intelligence Center "continue to emphasize a prohibition on the use of force." It noted:

The underlying basis for this prohibition is the proscriptions contained in international and domestic U.S. law. ...Army interrogation experts view the use of force as an inferior technique that yields intelligence of questionable value.

Id at 53. Emphasis added.

The Working Group also identified a number of policy considerations articulated by the Department of Defense.⁴³ The core of that policy is that:

Choice of interrogation techniques involves a risk benefit analysis in each case bounded by the limits of DOD policy and U.S. law.

Id at 55.⁴⁴

The DOD policy guidance confirmed that priority was being given to intelligence gathering but stated that there would be continued assessment of "the value of information for prosecution considerations."⁴⁵ In the event of a request to shift that priority, it noted, factors to be considered would include "...potential benefit from an effective interrogation compared to potential benefit from a better opportunity for effective prosecution."⁴⁶

It provided that:

For interrogations involving exceptional techniques approved by [Secretary Rumsfeld] standard doctrine may be used as well as specifically authorized exceptional techniques. However, such interrogations may only be applied in limited, designated settings approved by [Mr. Rumsfeld or designee] staffed by personnel specifically trained in their use and subject to a command/decision authority at a level [designated by Mr. Rumsfeld].

Id at 55.⁴⁷

Is it in its discussion of the potential effect of interrogation techniques on prosecutions that the Working Group Report is most directly relevant to the analysis here. It notes, "depending on the techniques employed, the admissibility of any information may depend on the forum considering the evidence." Id at 56.⁴⁸ It then considers two issues of direct relevance here; prosecution by the United States before a military commission, court martial or Article III court, and the effect of the Geneva Conventions if they are indeed applicable despite the Presidential Determination.

The Working Group’s Analysis of Admissibility of Evidence Obtained By Extraordinary Interrogation Techniques Before A Commission, Court Martial or District Court

The Working Group noted that although the standard of admissibility for military commissions is "fairly low"⁴⁹ "many of the [interrogation] techniques may place a burden on the prosecution’s ability to convince commission members that the evidence meets even the lower standard."⁵⁰ Their analysis is encouraging, even if it is incongruent with the past history of the evidentiary standard:⁵¹

As the interrogation methods increase in intensity, the likelihood that the information will be deemed coerced and involuntary and thus held inadmissible increases. Although voluntariness of the confession is not a specific threshold question on admissibility, it can reasonably be expected that the defense will raise voluntariness, challenging the probative value of the information and hence, its admissibility. If the statement is admitted, voluntariness will undoubtedly be a factor considered by the members in determining the weight given to the information.

Id at 56-57. Emphasis added.

The Working Group’s speculation that a fair approximation of at least the policies underlying the exclusionary rule would be applied in a commission unbound by law and precedent is, unfortunately, contrary to past experience. As previously noted, examination of past applications of the Quirin evidence rule include substantial abuses, often offensive to basic notions of fair play. Their analysis of the admissibility of extraordinary interrogation results in a court martial or U.S. District Court, is much more congruent with precedent.

Under those standards the Working Group noted:

If the actions taken to secure a statement constitute torture the statement would be inadmissible.⁵² It should be noted that conduct does not need to rise to the level of "torture" or "cruel, inhuman and degrading treatment or punishment" for it to cause a statment to be involuntary, and therefore inadmissible. As such, the more aggressive the interrogation technique used, the greater the likelihood it could adversely affect the admissibility of any acquired statements or confessions.

Id at 57. Emphasis added.⁵³

To the extent that court martial or district court standards apply, the emphasized language above is a direct refutation of Judge Bybee’s torture analysis. It straightforwardly supports a core proposition of this article; that use of evidence obtained through violations of the Third Geneva Convention would violate a POWs rights under GC3 Article 102.⁵⁴

Following its analysis of domestic legal issues, the Working group discusses its view of problems with the interrogation techniques under international law. It finesses the Presidential Declaration of inapplicability with a statement that the law "...although not binding on the United states, could be cited by other countries to support the proposition that the interrogation techniques used by the U.S. contravene international legal standards."Id at 58. While it says its purpose is to inform the DOD’s policy considerations when deciding how to treat "unlawful" combatants, the discussion constitutes a clear and direct warning of the potential problems arising from violations of the Third Geneva Convention.

The Working Group’s Analysis of the Effects of Application of the Geneva Conventions

The Working Group notes that "to the extent that other nation states do not concede the U.S. position..."⁵⁵ Articles 13⁵⁶, 14⁵⁷, 17⁵⁸, 130⁵⁹ and 129⁶⁰ may be relevant to considerations of interrogation techniques. It warns that:

These articles of the Third Geneva Convention may provide an opportunity for other States Parties to allege that they consider the United States to be in violation of the Convention through its treatment of detainees. To the extent any such treatment could be considered by them to be torture or inhumane treatment, such acts could be considered "grave breaches" and punishable as war crimes.

Id. Emphasis added.⁶¹

Despite these warnings, the Working Group, operating on the assumption that the Presidential Directive of inapplicability of GC3 is mandatory, recommends an interrogation program containing many of the elements previously discussed. It is, however, substantially limited in their application.

iii

The Working Group’s Recommended Interrogation Techniques

The Working Group recommends⁶² limited use of many of the non-standard techniques⁶³ previously approved by Secretary Rumsfeld but hedged with numerous limitations, safeguards and caveats. Its core is the statement that:

The purpose of all interviews and interrogations is to get the most information from a detainee with the least intrusive method, always applied in a humane and lawful manner with sufficient oversight by trained investigators or interrogators.

Id at 62.

The steps it proposes to ensure compliance with that standard are enlightening, both because they circumscribe interrogator conduct, and because they explain in clear terms the psychological and emotional manipulation at the core of effective interrogation techniques.⁶⁴ The Report notes that interrogations must consider "often interlocking factors, such as ... a detainee’s emotional and physical strengths and weaknesses...[and] an effort to gain the trust of the detainee..." They add:

Interrogation approaches are designed to manipulate the detainee’s emotions and weaknesses to gain his willing cooperation. Interrogation operations are never conducted in a vacuum; they are conducted in close cooperation with the units detaining the individuals. ...Detainee interrogation involves a plan tailored to an individual and approved by senior interrogators. Strict adherence to policies/standard operating procedures governing the administration techniques and oversight is essential.

Id at 62. Emphasis added.

Secretary Rumsfeld’s Approval

On 16 April, 2002, after considering the Working Group’s Report, Secretary Rumsfeld informed the Commander of SOUTHCOM that he had approved counter-resistance techniques⁶⁵ limited to interrogations of unlawful combatants held at Guantanamo Bay, Cuba.⁶⁶ He declined to approve some of the interrogation methods recommended by the Working Group including most of the methods in Categories I and II of the original request,⁶⁷ and noted that as to Incentive/Removal of Incentive, Pride and Ego Down, O. Mutt and Jeff, and Isolation "...you must specifically determine that military necessity requires its use and notify me in advance." Id.

The Department of Defense has verified that some of the techniques eventually approved by Secretary Rumsfeld were used, between 2 December, 2002 and 15 January, 2003.⁶⁸ They were applied by the Joint Task Force 170⁶⁹ at Guantanamo under the Command of a Military Intelligence officer, Major General Geoffrey Miller.⁷⁰

^{1.

http://www.globalsecurity.org/intell/library/policy/army/fm/fm34-52/toc.htm.}

^{2. Beaver Brief, supra at fn __.}

^{3. Department of Defense News Release, DOD Provides Details on
Interrogation Process, 22 June, 2004.

http://www.defenselink.mil/releases/2004/nr20040622-0930.html.
See Appendix 1.}

^{4. Id at Chapter 3.}

^{5. Id.}

^{6. Id.}

^{7. Id.}

^{8. The use of those methods, and their limitations is discussed in
Request for Approval of Counter Resistance Strategies of 11 October, 02,

http://www.defenselink.mil/news/Jun2004/d20040622doc3.pdf. The
limitations of FM 34-52, and the Third Geneva Convention, however, were
apparently not entirely observed even prior to this date. At least from the time
prisoners were shipped to Guantanamo, their beards were forcibly shaved. U.S.
Authorities justified the act as necessary for hygiene. http://www.ccr-ny.org/v2/reports/docs/ltr%20to%20Sentate%2012may04v2.pdf.
Article 14 of GC3 provides in part,that "Prisoners of war are entitled in all
circumstances to respect for their persons and their honour," and Article 16
provides for no adverse distinction based upon, inter alia, "religious belief."
Article 34 provides that "Prisoners of war shall enjoy complete latitude in the
exercise of their religious duties, including attendance at the service of their
faith, on condition that they comply with the disciplinary routine prescribed by
the military authorities." In 1945, Australian authorities
prosecuted Japanese guards who shaved the beards of Sikh prisoners of war and
forced them to smoke cigarettes in violation of their religious beliefs. U.N.
war crimes series [cite]}

^{9. United States Southern Command established Joint Task Force 160/170,
which was responsible for operating the detainee detention facility and
conducting interrogations to collect intelligence in support of the War on
Terrorism. Joint Task Force 160 was established in January 2002 and was tasked
with taking care of captured enemy combatants from the war on terrorism. Joint
Task Force 170 was stood up by Southern Command on 16 February 2002, and tasked
with handling interrogation operations for the Department of Defense as well as
ensuring coordination among government agencies involved in the interrogation of
the suspected terrorists.

http://www.globalsecurity.org/military/agency/dod/jtf-gtmo.htm.}

^{10. Id at fn __.}

^{11. The Request was accompanied by a Legal Brief on Proposed
Counter-Resistance Strategies. Id at fn __. That Brief, by Diane E. Beaver, a
USA Army JAG LTC, presumed the correctness of the proposition that detainees at
Guantanamo were unprotected by the Geneva Conventions. Paragraph 2. It is
discussed in more detail in Section VI(B) below.}

^{12.

http://www.defenselink.mil/news/Jun2004/d20040622doc4.pdf.}

^{13. See, Appendix 2, supra.}

^14.The Beaver Brief, id at fn__, identified "current techniques" as those outlined in FM 34-52.

The Field Manual discusses low intensity conflicts in chapter 9. It provides that:

EPW interrogations are conducted in support of wartime military operations and are governed by the guidelines and limitations provided by the Geneva Conventions and FM 27-10. However, insurgent subversive underground elements who are seeking to overthrow an established government in an insurgency do not hold legal status as belligerents (see DA Pam 27-161-1). Since these subversive activities are clandestine or covert in nature, individuals operating in this context seek to avoid open involvement with host-government police and military security forces. Hence, any insurgent taken into custody by host-government security forces may not be protected by the Geneva Conventions beyond the basic protections in Article 3. The insurgent will be subject to the internal security laws of the country concerning subversion and lawlessness. Action of US forces, however, will be governed by existing agreements with the host country and by the provisions of Article 3 of the 1949 Geneva Conventions.

Id.

Under the heading Handling of Insurgent Captives and Suspects FM 34-52 provides:

Insurgency is identified as a condition resulting from a revolt or insurrection against a constituted government which falls short of civil war. It is not usually a conflict of international character, and it is not a recognized belligerency. Therefore, insurgent captives are not guaranteed full protection under the articles of the Geneva Conventions relative to the handling of EPWs. However, Article 3 of the Conventions requires that insurgent captives be humanely treated and forbids violence to life and person -- in particular murder, mutilation, cruel treatment, and torture. It further forbids commitment of outrages upon personal dignity, taking of hostages, passing of sentences, and execution without prior judgment by a regularly constituted court.

Humane treatment of insurgent captives should extend far beyond compliance with Article 3, if for no other reason than to render them more suceptible to interrogation. The insurgent is trained to expect brutal treatment upon capture. If, contrary to what he has been led to believe, this mistreatment is not forthcoming, he is apt to become psychologically softened for interrogation. ...

Id. (Emphasis added).

15. If from no other source, the Joint Task Force was aware of certain cultural issues involving the detainees through discussions with the International Committee of the Red Cross. In notes from a meeting between inter alia Judge Advocates from SOUTHCOM and JTF 160 and ICRC representatives on 21 January, 2002, the Red Cross raised the issues of privacy and beards. JAG notes from that meeting include "Islamic people are very private as concerns their bodies" and "Could closely trimmed beards be tolerated?" They also note regarding "red/orange colored clothing" that "In their culture, red clothing as a sign that someone is about to be put to death." The ICRC also articulated the detainees’ desires for prayer caps, prayer beads, Korans, and prayer tapes. Two days later, in a Memo to File dated 24 January, 2002, the JTF 160 SJA noted initial responses to the issues raised including the placing of opaque plastic around the showers because "Showering in front of the guards is a great embarrassment to the detainees. Men of the Muslim culture are much more sensitive about their privacy than men in the Western culture." Regarding the issue that "Detainees wish to grow a short beard in accordance with their religion," it was noted the matter, along with return of prayer beads, was "under consideration." Korans were distributed. http://www.washingtonpost.com/wp-srv/nation/documents/gitmomemos.html.

16. "Extensions beyond the initial 30 days must be approved by the Commanding General. For selected detainees, the OIC [Officer in Charge], Interrogation Section, will approve all contacts with the detainee, to include medical visits of a non-emergent [sic] nature." Request, supra, fn ___, at paragraph (b)(3).

17. Described as "Deprivation of light and auditory stimuli." Id at (b)(5).

18. Id, items 1-12.

19. Which could only be used after approval by the Commanding General following a request by the Director of the Joint Interrogation Group, with "appropriate legal review" and information to the SOUTHCOM Commander. Id at Paragraph (c). They "may be utilized in a carefully coordinated manner to help interrogate exceptionally resistant detainees. Any of these techniques that requoire light grabbing, poking or pushing will be administered only by individuals specifically trained in their safe application."

20. See Robert Lifton, Doctors and torture, 351 New England Journal of Medicine 415 (29 July, 2004) http://content.nejm.org/cgi/content/full/351/5/415.

21. The technique is similar to the so-called "water cure" used by American troops against Philippine insurgents at the beginning of the last century. "Water cure is a form of interrogation In one variation, of which the subject is tied or held down in a chair and with his face covered with a cloth, water is poured over his face. The subject feels like he is drowning and this is done to encourage the subject to talk. Another variation is to pour water down the thoat of the subject being careful not to drown the subject but to make the subject feel the sensation of drowning." http://www.campusprogram.com/reference/en/wikipedia/w/wa/water_cure.html.

22. Based on a recommendation from DOD General Counsel William J. Haynes II, Deputy General Counsel Douglas Feith and General Richard Myers, Chairman of the Joint Chiefs of Staff.

23. See Appendix 3.

24. http://www.defenselink.mil/news/Jun2004/d20040622doc5.pdf.

25. On 22 June, 2004, the office of the DOD General Counsel released a document entitled GTMO Interrogation Techniques. http://www.washingtonpost.com/wp-srv/world/daily/graphics/interrogation_062304.htm. That document identifies Category I and II techniques used between December 2002, and 15 January, 2003. They include under Category I yelling (not directly into ear) and deception through introduction of a confederate detainee and "role playing by interrogator in next cell." Category II applied techniques include removal from social support, segregation, isolation, interrogation in a different location (still at Guantanamo), deprivation of light (using a red light), introducing strees through use of a female interrogator, up to 20 hour interrogations, removal of all comfort items including religious items, serving MREs instead of hot rations, forced grooming (to include shaving facial hair and head), and use of false documents.

26. Memorandum for Commander SOUTHCOM, from Secretary Rumsfeld, 15 Jan. 2003, http://www.defenselink.mil/news/Jun2004/d20040622doc7.pdf. Secretary Rumsfeld simultaneously directed the establishment of a working group within the DOD "to assess the legal, policy and operational issues relating to the interrogation of detainees.." http://www.defenselink.mil/news/Jun2004/d20040622doc6.pdf.

27. Id.

28. Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations, 6 March, 2003. http://www.ccr-ny.org/v2/reports/docs/PentagonReportMarch.pdf.

29. Id at http://www.defenselink.mil/news/Jun2004/d20040622doc8.pdf.

30. Those included representatives from the Offices of the Undersecretary of (Defense Policy), the Defense Intelligence Agency, the General Counsels of the Air Force, Army and Navy and Counsel to the Commandant of the Marine Corps, the Judge Advocates General of the Army, Navy, Air Force and Marines, and the Joint Staff Legal Counsel and J5. Id at Introduction, p.2.

31. The Working Group Report constitutes both factual and legal analysis. It is discussed here, but also is compared and contrasted with the Bybee and Beaver memoranda below in Section __.

32.The sea change reflected in the Working Group Report may indicate the shift to at least considering some input from military lawyers.

Lawyers from the military's Judge Advocate General's Corps, or JAG, had been urging Pentagon officials to ensure protection for prisoners for two years before the abuses at Iraq's Abu Ghraib prison came to light, current and former JAG officers told ABCNEWS. But, the JAG lawyers say, political appointees at the Pentagon ignored their warnings, setting the stage for the Abu Ghraib abuses, ... "If we — 'we' being the uniformed lawyers — had been listened to, and what we said put into practice, then these abuses would not have occurred," said Rear Admiral Don Guter (ret.), the Navy Judge Advocate General from 2000 to 2002. Specifically, JAG officers say they have been marginalized by Douglas Feith, undersecretary of defense for policy, and William Haynes II, the Pentagon's general counsel, whom President Bush has nominated for a judgeship on the United States Court of Appeals for the Fourth Circuit.

See, ABC News, JAG Lawyers Say Political Appointees Ignored Their Warnings on Prisoner Treatment, 16 May, 2004. http://abcnews.go.com/sections/WNT/US/JAG_detainees_040515-1.html.

33. Thus, the Report states that "The laws of war contain obligations relevant to the issue of interrogation techniques and methods. It should be noted, however, that it is to al Qaida detainees because, inter alia, al Qaida is not a High Contracting Party...As to the Taliban, the U.S. position is that the provisions of Geneva apply to our present conflict with the Taliban, but that Taliban detainees do not qualify as prisoners of war under Article 4 of the Geneva Convention," citing for both propositions the Presidential Determination of 7 Feb. 2002. That Presidential Determination is based on the Attorney General’s and OLC’s legal memoranda above discussed.

34. Again, based on the Presidential Determination id.

35. Again, limited by the Presidential Declaration of inapplicability of GC3.

36. Discussed below at Section__.

37. Working Group Report, id at Section IV, page 51 et seq.

38. Discussed supra at __.

39. Army Field Manual 30-15 was in effect from 1945 until its replacement in 1987 by FM 34-52. Its provisions were also applied by the other armed services of the United States. Working Group Report at p.51.

40. FM 30-15 noted that violations of customary and treaty law would normally also violate the UCMJ and be prosecuted under it, as well as giving rise to potential command liability. Id at 51.

41. Id at 51.

42. Id at 53.

43. The policy statement was provided by the Office of the Assistant Secretary of Defense (Special Operations and Low-Intensity Conflict. Id at 54. The Assistant Secretary is Thomas O’Connell. See, http://www.results.gov/leadership/bio_540.html.

44. The Assistant Secretary’s policy guidance also includes what the author considers a wise and highly perceptive statement of a core policy reason for the importance of international law to the armed forces of the United States:

When assessing whether to use exceptional interrogation techniques, consideration should be given to the possible adverse effects on U.S. Armed Forces culture and self-image, which at times in the past may have suffered due to perceived law of war violations. DOD policy, reflected in the DOD Law of War Program implemented in 1979 and in subsequent directives, greatly restored the culture and self-image of U.S. Armed Forces by establishing high benchmarks of compliance with the principles and spirit of the law of war and thereby humane treatment of all persons in U.S. Armed Forces’ custody. In addition consideration should be given to whether implementation of such exceptional techniques is likely to result in adverse effects on DOD personnel who becaome POWs, including possible perceptions by other nations that the United states is lowering standards relating to the treatment of prisoners generally.

Id at 55.

45. Id at 54.

46. It is at this point that the DOD seems to recognize on the record that the two might be mutually exclusive, a point which seemed lost on the Department of Justice. See, eg. The Yoo/Delahunty Memorandum, infra at __.

47. The DOD policy also required all interrogations involving "exceptional" methods had to be applied in the context of a comprehensive plan which had to include at least appropriate approval authority.

48.The Report points out that admissibility is necessarily fact specific depending on the exact techniques used. Id.

49. "Probative value to a reasonable person, see discussion, infra at__.

50.Working Group Report at 56.

51. See discussion supra at __. The analysis would be much more persuasive if the appellate process was through the courts rather than the executive branch.

52. Citing Brown v. Mississippi, 297 U.S. 278 (1936) "(confessions procured by means ‘revolting to the sense of justice’ could not be used to secure a conviction."

53. The Working Group raises a number of other concerns including public reaction to methods of interrogation, and balancing the "stated objective of open proceedings with the need not to publicize interrogation techniques.’ Id at 57.

54. "A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed."

55. Id.

56. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.

57. Prisoners of war are entitled in all circumstances to respect for their persons and their honour. ...

58. Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. ...No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

59. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

60. ...Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts....

61. The Working Group also notes that even if other States Party concur that POW status is inapplicable they may still claim coverage under Article 75 of the First Additional protocol to the Geneva Conventions. " ...persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons. [Prohibited acts include violence to the life, health, or physical or mental well-being of persons including murder, torture of all kinds, whether physical or mental; corporal punishment; and mutilation; outrages upon personal dignity, in particular humiliating and degrading treatment; taking of hostages; collective punishments; and threats to commit any of the foregoing acts]. ‘

62. See Appendix 4.

63. Many of the techniques discussed are standard interrogation methods found in FM 34-52.

64. Thus the Working Group notes that interrogations "must always be planned, deliberate actions" with operating instructions "based on command policies to ensure uniform, careful and safe application of interrogations of detainees. id at 62. It adds this caveat emphasized in the original "While techniques are considered individually within this analysis, it must be understood that in practice, techniques are usually used in combination; the cumulative effect of all techniques used must be considered before any decisions are made regarding approval for particular situations...

65. See Appendix 5.

66. http://www.defenselink.mil/news/Jun2004/d20040622doc9.pdf,

67. The methods eliminated from the Working Group recommendations included Hooding; Mild Physical Contact; Threat of Transfer; Use of Prolonged Interrogations; Forced Grooming; Prolonged Standing; Sleep deprivation; Physical Training; Face slap/Stomach slap; Removal of Clothing; and Increasing Anxiety by Use of Aversions. Secretary Rumsfeld noted, however, that if the SOUTHCOM commander determined that he required "...additional interrogation techniques for a particular detainee, you should provide me...a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee." Id at p.1.

68.DOD Background Briefing, May 20, 2004. Sr. Defense Official: "I believe that there were some techniques that eventually were approved were used in the initial phase which began and then stopped." http://www.defenselink.mil/transcripts/2004/tr20040520-0788.html.

69. Later the Joint Interrogation Task Force Guantanamo.

70. General Miller assumed command at Guantanamo in November, 2002. http://www.globalsecurity.org/military/facility/guantanamo-bay_delta.htm.

Appendix 1

Interrogation Techniques Permitted In FM 34-52 (Appendix H)

1. Direct Approach

2. Incentive Approach

3. Emotional Love

4. Emotional Hate

5. Fear Up Harsh

6. Fear Up Mild

7. Decreased Fear Down

8. Pride and Ego Up

9. Pride and Ego Down

10. Futility Technique

11. We Know All

12. Establish Your Identity

13. Repetition

14. File and Dossier

15. Mutt and Jeff

16. Rapid Fire

17. Silence

For a complete description of these techniques see FM 34-52, Appendix H, at http://www.globalsecurity.org/intell/library/policy/army/fm/fm34-52/app-h.htm.

Appendix 2

Interrogation Techniques Requested BY Joint Task Force 170, 11 October, 2002

Category I Techniques

1) Yelling at the detainee (Not directly in his ear or at the level it would cause physical pain or hearing problems)

2) Techniques of deception:

a) Multiple-interrogator techniques

b) Interrogator-identity. The interviewer may identify himself as a citizen of a foreign nation or as an Interrogator from a country with a reputation for harsh treatment of detainees.

Category II Techniques

1) The use of stress positions (like standing) for a maximum of four hours.

2) The use of falsified documents or reports.

3) Use of the isolation facility for up to 30 days. Request must be made to [sic] through the OIC, Isolation Section, to the Director, Joint Interrogation Group (JIG). Extensions beyond the initial 30 days must be approved by the Commanding General. For selected detainees, the OIC, Interrogation Section, will approve all contacts with the detainee, to include medical visits of a non-emergent [sic] nature.

4) Interrogating the detainee in an environment other than the standard interrogation booth.

5) Deprivation of light and auditory stimuli.

6) The detainee may have a hood placed over his head during transportation and questioning. The hood should not restrict breathing in any way and the detainee should be under direct observation when hooded.

7) The use of 20 hour interrogations.

8) Removal of all comfort items (including religious items).

9) Switching the detainee from hot rations to MREs.

10) Removal of clothing.

11) Forced grooming (shaving of facial hair etc.).

12) Using detainees individual phobias (such as fear of dogs) to induce stress.

Category III Techniques

Techniques in this category may be used only by submitting a request through the Director, JIG, for approval by the Commanding General with appropriate legal review and information to Commander, USSOUTHCOM. These techniques are required for a very small percentage of the most uncooperative detainees (less than 3%). The following techniques, and other aversive techniques, such as those used in U.S. military interrogation resistance training or by other U.S. government agencies, may be utilized in a carefully coordinated manner to help interrogate exceptionally resistant detainees. Any of these techniques that require more than light grabbing, poking or pushing, will be administered only by individuals specifically trained in their safe application.

1) The use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family.

2) Exposure to cold weather or water (with appropriate medical monitoring).

3) Use of a wet towel and dripping water to induce the misperception of suffocation.

4) Use of mild non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing.

Appendix 3

Interrogation Techniques Approved by the Secretary of Defense

The Interrogation Techniques Requested by Joint Task Force 170 on 11 October, 2002 were forwarded by General James T. Hill, Commanding General of the Southern Command to General Richard Myers, Chairman of the Joint Chiefs of Staff with a recommendation that he believed Categories I and II were "legal and humane." He noted, however, that:

I am uncertain whether all the techniques in the third category are legal under U.S. law, given the absence of judicial interpretation of the US torture statute. I am particularly troubled by the use of implied or expressed threats of death of the detainee or his family. However, I desire to have as many option as possible at my disposal and therefore request that Department of defense and department of Justice lawyers review the third category of techniques.

http://www.defenselink.mil/news/Jun2004/d20040622doc4.pdf

On 2 December, 2002, Secretary Rumsfeld approved¹⁶² an Action Memo from William J. Haynes II, General Counsel of the DOD.¹⁶³ His approval permitted the use of counter-resistance techniques at Guantanamo limited to categories I and II and the fourth technique in Category III.¹⁶⁴

Accordingly, the interrogation techniques approved and implemented for Guantanamo on 2 December, 2002, were as follows:

Category I Techniques

1) Yelling at the detainee (Not directly in his ear or at the level it would cause physical pain or hearing problems)

2) Techniques of deception:

a) Multiple-interrogator techniques

b) Interrogator-identity. The interviewer may identify himself as a citizen of a foreign nation or as an Interrogator from a country with a reputation for harsh treatment of detainees.

Category II Techniques

1) The use of stress positions (like standing) for a maximum of four hours.

2) The use of falsified documents or reports.

3) Use of the isolation facility for up to 30 days. Request must be made to [sic] through the OIC, Isolation Section, to the Director, Joint Interrogation Group (JIG). Extensions beyond the initial 30 days must be approved by the Commanding General. For selected detainees¹⁶⁵, the OIC, Interrogation Section, will approve all contacts with the detainee, to include medical visits of a non-emergent [sic] nature.

4) Interrogating the detainee in an environment other than the standard interrogation booth.

5) Deprivation of light and auditory stimuli.

7) The use of 20 hour interrogations.

8) Removal of all comfort items (including religious items).

9) Switching the detainee from hot rations to MREs.

10) Removal of clothing.

11) Forced grooming (shaving of facial hair etc.).

12) Using detainees individual phobias (such as fear of dogs) to induce stress.

Category III Techniques

1) Use of mild non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing.

Appendix 4

Interrogation Techniques Recommended By the DOD Working Group Report, 4 April, 2003

1. Direct: Asking straightforward questions.

2. Incentive/Removal of Incentive: Providing a reward or removing a privilege, above and beyond those required by the Geneva Convention, from detainees. (Privileges above and beyond POW-required privileges).

3. Emotional Love: Playing on the love a detainee has for an individual or group.

4. Emotional Hate: Playing on the hate a detainee has for an individual or group.

5. Fear Up Harsh: Significantly increasing the fear level in a detainee.

6. Fear Up Mild: Moderately increasing the fear level in a detainee.

7. Reduced Fear: Reducing the fear level in a detainee.

8. Pride and Ego Up: Boosting the ego of a detainee.

9. Pride and Ego Down: Attacking and insulting the ego of a detainee, not beyond the limits that would apply to a POW.

10. Futility: Invoking the feeling of futility of a detainee.

11. We Know All: Convincing the detainee that the interrogator knows the answer to questions he asks the detainee.

12. Establish Your Identity: Convincing the detainee that the interrogator has mistaken the detainee for someone else.

13. Repetition Approach: Continuously repeating the same question to the detainee within interrogation periods of normal duration.

14. File and Dossier: Convincing the detainee that the interrogator has a damning and inaccurate file, which must be fixed.

15. Mutt and Jeff: A team consisting of a friendly and a harsh interrogator. The harsh interrogator might employ the Pride and Ego Down technique.

16. Rapid Fire: Questioning in rapid succession without allowing detainee to answer.

17. Silence: Staring at the detainee to encourage discomfort.

18. Change of Scenery Up: Removing the detainee from the standard interrogation setting (generally to a location more pleasant, but no worse).

19: Change of Scenery Down: Removing the Detainee from the standard interrogation setting and placing him in a setting that may be less comfortable; would not constitute a substantial change in environmental quality.

20: Hooding: This techniques is questioning the detainee with a blindfold in place. For interrogation purposes, the blindfold is not on other than during interrogation.

21: Mild Physical Contact: Lightly touching a detainee or lightly poking the detainee in a completely non-injurious manner. This also includes softly grabbing of shoulders to get the detainee’s attention or to comfort the detainee.

22: Dietary Manipulation: Changing the diet of a detainee; no intended deprivation of food or water; no adverse medical or cultural effect and without intent to deprive subject of food or water, e.g., hot rations to MREs.

23: Environmental Manipulation: Altering the environment to create moderate discomfort (e.g. adjusting temperature or introducing an unpleasant smell). Conditions would not be such that they would injure the detainee. Detainee would be accompanied by interrogator at all times.

24: Sleep Adjustment: Adjusting the sleeping times of the detainee (e.g. reversing sleep cycles from night today.) This technique is NOT sleep deprivation.

25:False Flag: Convincing the detainee that individuals from a country other than the United states are interrogating him.

26: Threat of Transfer: Threatening to transfer the subject to a 3^rd country that subject is likely to fear would subject him to torture or death. (The threat would not be acted upon nor would the threat include any information beyond the naming of the receiving country).

The following list includes additional techniques that are considered effective by interrogators, some of which have been requested by USCENTCOM and USSOUTHCOM. They are more aggressive counter-resistance techniques that may be appropriate for detainees who are extremely resistant to the above techniques, and who the interrogators strongly believe have vital information. All of the following techniques indicate the need for technique-specialized training and written procedures to insure the safety of all persons, along with appropriate, specified levels of approval and notification for each technique.

27: Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment.

28: Use of Prolonged Interrogations: The continued use of a series of approaches that extend over a long period of time (e.g., 20 hours per day per interrogation).

29: Forced Grooming: Forcing a detainee to shave hair or beard. (Force applied with intention to avoid injury. Would not use force that would cause serious injury.)

30: Prolonged Standing: Lengthy standing in a "normal" position (non-stress). This has been successful, but should never make the detainee exhausted to the point of weakness or collapse. Not enforced by physical restraints. Not to exceed four hours on a 24-hour period.

31: Sleep deprivation: Keeping the detainee awake for an extended period of time. (Allowing individual to rest briefly and then awakening hi, repeatedly.) Not to exceed 4 days in succession.

32: Physical Training: Requiring detainees to exercise (perform ordinary physical exercises actions) (e.g. running, jumping jacks); not to exceed 15 minutes in a two-hour period; not more than two cycles, per 24-hour periods), Assists in generating compliance and fatiguing the detainees. No enforced complaince.

33: Face slap/Stomach slap: A quick glancing slap to the fleshy part of the cheek or stomach. These techniques are used strictly as shock measures and do not cause pain or injury. They are only effective if used once or twice together. After the second time on a detainee, it will lose the shock effect. Limited to two slaps per application; no more than two applications per interrogation.

34: Removal of Clothing: Potential removal of all clothing; removal to be done by military police if not agree to by the subject. Creating a feeling of helplessness and dependence. This technique must be monitored to ensure the environmental conditions are such that this technique does not injure the detainee.

35: Increasing Anxiety by Use of Aversions: Introducing factors that of themselves create anxiety but do not create terror or mental trauma (e.g., simple presence of dog without directly threatening action). This technique requires the commander to develop specific and detailed safeguards to insure the detainee’s safety.

Appendix 5

Interrogation Techniques Approved By Secretary Rumsfeld 16 April, 2003

A. Direct: Asking straightforward questions.

B. Incentive/Removal of Incentive: Providing a reward or removing a privilege, above and beyond those required by the Geneva Convention, from detainees. (Privileges above and beyond POW-required privileges). Caution: Other nations that believe that detainees are entitled to POW protections¹⁶⁷ may consider that provision and retention of religious items (e.g. the Koran) are protected under international law (See, Geneva III, Article 34). Although the provisions of the Geneva Convention are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of this technique.

C. Emotional Love: Playing on the love a detainee has for an individual or group.

D. Emotional Hate: Playing on the hate a detainee has for an individual or group.

E. Fear Up Harsh: Significantly increasing the fear level in a detainee.

F. Fear Up Mild: Moderately increasing the fear level in a detainee.

G. Reduced Fear: Reducing the fear level in a detainee.

H. Pride and Ego Up: Boosting the ego of a detainee.

I. Pride and Ego Down: Attacking and insulting the ego of a detainee, not beyond the limits that would apply to a POW. [Caution: Article 17 of Geneva III provides, "Prisoners of war who refuse to answer may not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind." Other nations that believe that detainees are entitled to POW protections may consider this technique inconsistent with the provisions of Geneva. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of this technique.

J. Futility: Invoking the feeling of futility of a detainee.

K. We Know All: Convincing the detainee that the interrogator knows the answer to questions he asks the detainee.

L. Establish Your Identity: Convincing the detainee that the interrogator has mistaken the detainee for someone else.

M. Repetition Approach: Continuously repeating the same question to the detainee within interrogation periods of normal duration.

N. File and Dossier: Convincing the detainee that the interrogator has a damning and inaccurate file, which must be fixed.

O. Mutt and Jeff: A team consisting of a friendly and a harsh interrogator. The harsh interrogator might employ the Pride and Ego Down technique. [Caution: Other nations that believe that POW protections apply to may consider this technique as inconsistent with Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of this technique.]

P. Rapid Fire: Questioning in rapid succession without allowing detainee to answer.

Q. Silence: Staring at the detainee to encourage discomfort.

R. Change of Scenery Up: Removing the detainee from the standard interrogation setting (generally to a location more pleasant, but no worse).

S: Change of Scenery Down: Removing the Detainee from the standard interrogation setting and placing him in a setting that may be less comfortable; would not constitute a substantial change in environmental quality.

T: Dietary Manipulation: Changing the diet of a detainee; no intended deprivation of food or water; no adverse medical or cultural effect and without intent to deprive subject of food or water, e.g., hot rations to MREs.

U: Environmental Manipulation: Altering the environment to create moderate discomfort (e.g. adjusting temperature or introducing an unpleasant smell). Conditions would not be such that they would injure the detainee. Detainee would be accompanied by interrogator at all times. [Caution: Based on court cases in other countries, some nations may view application of this technique in certain circumstances to be inhumane. Consideration of these views should be given prior to use of this technique.

V: Sleep Adjustment: Adjusting the sleeping times of the detainee (e.g. reversing sleep cycles from night today.) This technique is NOT sleep deprivation.

W: False Flag: Convincing the detainee that individuals from a country other than the United states are interrogating him.

X: Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment. [Caution: The use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extensions of the length of isolation by the appropriate level in the chain of command. This technique is not known to have been generally used for interrogation purposes for longer than 30 days. Those nations that believe detainees are subject to POW protections may view use of this technique as inconsistent with the requirements of Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation; Article 14 which provides that POWs are entitled to respect for their person; Article 34 which prohibits coercion and article 126 which ensures access to basic standards of treatment. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of this technique.]