CIA Lawyer’s Torture Definition: ‘If the Detainee Dies, You’re Doing It Wrong'

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Updated: Documents released yesterday indicate that CIA lawyers advised the Pentagon about permissible harsh interrogation techniques at Guantanamo. In one instance a CIA lawyer apparently indicated the definition of torture is flexible, the Washington Post reports.

Minutes of one Guantanamo meeting in October 2002, which don’t provide a verbatim transcript, had CIA counterterrorism lawyer Jonathan Fredman saying that torture “is basically subject to perception.”

“If the detainee dies, you’re doing it wrong,” he reportedly said.

The minutes indicate Fredman talked about how to avoid interference by the International Committee of the Red Cross and defended waterboarding, used by the CIA but never approved by the Defense Department, according to the Post account. He also said the detainees should be monitored by medical experts to prevent their deaths while aggressive techniques are being used.

Two months after the meeting, then-Defense Secretary Donald Rumsfeld approved techniques at Guantanamo that included stress positions, sleep deprivation and forced nudity.

The Senate Armed Services Committee held a hearing yesterday on development of interrogation polices. Sen. Carl Levin, D-Mich., the committee chairman, was critical of Fredman’s reported statements. “How on Earth did we get to the point where a United States government lawyer would say that … torture is subject to perception?” Levin asked.

Another lawyer, Richard Schiffrin, recently told the New York Times he researched psychological studies about the effects of interrogation after his superiors at the Pentagon expressed frustration about Guantanamo detainees withholding information. The information he obtained included studies of North Koreans’ attempted mind-control experiments on American prisoners during the Korean War. “It was real Manchurian Candidate stuff,” he told the Times.

The Post story says other officials who trained the U.S. military in surviving interrogations by captors were asked to write memos about techniques with the greatest psychological impact.

Former Defense Department general counsel William Haynes II testified yesterday that decisions about interrogations were fueled by fears of further terrorist attacks. “What I remember about the summer of 2002 was a government-wide concern about the possibility of another terrorist attack as the anniversary of Sept. 11” approached, he said.

“As the lawyer, I was not the decision maker,” Haynes said, according to a New York Times account of his remarks. “I was the adviser.”

But the decision to adopt harsh techniques was not backed by all lawyers in the department. Mark Fallon, deputy commander of the Defense Department’s Criminal Investigation Task Force, warned of repercussions if harsh techniques were adopted, the Post story says. He wrote in an October 2002 e-mail to Pentagon colleagues that techniques being considered would “shock the conscience of any legal body” that might review the interrogations.

“This looks like the kind of stuff congressional hearings are made of,” he wrote.

Update: In stories published respectively in 2009 and 2011, the Washington Times and the National Journal reported that Fredman told the Senate Armed Forced Committee in a memo that he never made the statement, “It is basically subject to perception. If the detainee dies you’re doing it wrong.” The supposed statement was based on meeting notes that were incorrect, Fredman asserted. To the contrary, Fredman told the Armed Forces Committee, “I … emphasized that all interrogation practices and legal guidance must not be based upon anyone’s subjective perception; rather they must be based upon definitive and binding legal analysis from the Department of Justice.” Fredman’s memo said he warned authorities that violating the U.S. torture statute could result in severe penalties, including the death penalty. Fredman’s denial was not included in the Senate committee’s report.

Updated at 8:40 a.m. to include information from a New York Times story. Updated on Oct. 29, 2012, to include Fredman’s denial.

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