The Black Banners_ 9_11 and the War Against Al-Qaeda - Ali H. Soufan [224]
Following these meetings, on October 11, General Dunlavey sent a memo to his military superior, Gen. James Hill, requesting authorization for aggressive interrogation techniques. There were three progressively harsh categories. Category I included yelling at the detainee and allowing the interrogator to claim he was the citizen of a foreign country known for the harsh treatment of detainees. Among Category II techniques were the use of stress positions, isolation, twenty-hour interrogations, the removal of clothing, and the use of phobias (such as fear of dogs) to induce stress in the detainee. Category III techniques included scenarios designed to make the detainee believe that imminent harm was about to befall either him or his family, and the use of water to induce the “misperception” of suffocation. The techniques were defended in a legal memo by then Lt. Col. Diane Beaver, the senior-most lawyer at Guantánamo.The request passed through General Hill’s office up through the chain of command and landed on Jim Haynes’s desk for his recommendation to Donald Rumsfeld, then secretary of defense.
The way the legal system in the military worked was that lawyers from all services could offer opinions, but ultimate legal authority rested with the defense secretary’s general counsel. The Senate report details various objections that different services had to the techniques. The Marine Corps, for example, stated that several techniques “arguably violate federal law, and would expose our service members to possible prosecution,” and called for “a more thorough legal and policy review.”
Ignoring the warnings, Haynes sent a one-page memo to Secretary Rumsfeld on November 27, as the Senate report notes, “recommending that he approve all but three of the eighteen techniques in the GTMO request. . . . Mr. Haynes’s memo indicated that he had discussed the issue with Deputy Secretary of Defense Paul Wolfowitz, Undersecretary of Defense for Policy Doug Feith, and General Myers and that he believed they concurred in his recommendation.”
On December 2, 2002, Secretary Rumsfeld signed the recommendation, adding a handwritten note at the bottom of the page regarding limits on the use of stress positions: “I stand for 8–10 hours a day. Why is standing limited to 4 hours?”
While Secretary Rumsfeld only officially approved the techniques on December 2, some were already being introduced in early October, after the Bush administration lawyers and the CIA’s CTC general counsel left the base. Dogs were used to intimidate Qahtani and he was put into stress positions. Later a host of much more aggressive techniques were used on him over a period of three months. These included, according to the Senate Committee, being stripped naked and “made to wear a leash and perform dog tricks.”
When Mark Fallon was shown the proposed interrogation plan for Qahtani by members of the military command at Gitmo, he said that it was “illegal” and that he would recommend that CITF members be barred from taking part in the interrogations.
“It can’t be illegal, the secretary of defense authorized it,” was the reply.
“The secretary of defense doesn’t have the ability to change the law. He can’t determine what is legal and illegal.”
Fallon’s boss, Brittain Mallow, initially disagreed with him: while he was completely opposed to the techniques, he thought that CITF agents could go in as observers and temper what the military interrogators did. Fallon’s response was unequivocal: “It will put agents in a bad position. Either they’ll watch the law being broken, or, as sworn law enforcement officers, seeing laws being broken, they may try to arrest the military interrogators. Nothing good can come of this.”
Mark Fallon, a New Jersey native from a family of law enforcement officials, found himself in a position he had warned his staff members about during their orientation. “Even if I give you an illegal order,” he told them, “you can’t follow it. You are bound by the Constitution. Remember