On Jan. 17, 2003, Mary Walker, the Air Force general counsel, received an urgent memo from the Pentagon's top attorney. Attached to the classified document was a set of directives drafted two days earlier by Secretary of Defense Donald Rumsfeld.
"Establish a working group within the Department of Defense to assess the legal, policy and operational issues relating to the interrogations of detainees held by the U.S. Armed Forces in the war on terrorism," the directives said.
Among the issues to be addressed were “policy considerations with respect to the choice of interrogation techniques, including contribution to intelligence collection, effect on treatment of captured U.S. military personnel, effect on detainee prosecutions, historical role of U.S. armed forces in conducting interrogations, recommendations for employment of particular interrogation techniques by [Defense Department] interrogators."
Earlier this week, the Defense Department turned over an 81-page document to the American Civil Liberties Union in a Freedom of Information Act lawsuit that provides further insight into the extraordinary Executive Branch powers granted to President George W. Bush following the 9/11 attacks.
John Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, drafted the document, dated March 14, 2003. It essentially provided military interrogators with legal cover if they resorted to brutal and violent methods to extract information from prisoners.
"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," Yoo wrote. "In that case, we believe that he could argue that the Executive Branch's constitutional authority to protect the nation from attack justified his actions."
The legal opinion for military interrogators was virtually identical to an earlier memo that Yoo had written in August 2002 for CIA interrogators. Widely called the “Torture Memo,” it provided CIA interrogators with the legal authority to use long-outlawed tactics, such as waterboarding, when interrogating so-called high-level terrorist suspects.
But Yoo’s legal opinions were not entirely the work of Yoo.
In early January 2003, commanders stationed at Guantanamo Bay prison in Cuba complained to Rumsfeld that military officials were unable to glean information from prisoners about alleged terrorist plots in the U.S. and abroad using conventional interrogation methods.
Following his conversation with military officials, on Jan. 15, 2003, Rumsfeld sent William Haynes II, the Pentagon's general counsel, a memo requesting that he form a "working group" to determine what methods military interrogators could use to extract information from a prisoner at Guantanamo Bay.
Haynes asked the Justice Department's Office of Legal Counsel for guidance and selected Walker to chair a "working group" to write a report on legally permissible interrogation techniques.
The members of the group included former Undersecretary of Defense for Policy Douglas Feith, officials from the Defense Intelligence Agency, representatives of the Joint Chiefs of Staff, and judge advocate generals (JAGs) from all four branches of the military.
By the time Walker's group had settled in for its first meeting, interrogators at Guantanamo Bay had already begun to violate the Geneva Convention.
To ratchet up pressure on prisoners, U.S. military personnel were experimenting with unusual tactics, including placing women's underwear on prisoners’ heads, a technique that later reappeared in Iraq's Abu Ghraib prison.
A military official, who took part in discussions with Mary Walker’s group, told the Wall Street Journal in June 2004 that there was a growing frustration among interrogators.
"We'd been at this for a year-plus and got nothing out of them," the official said, adding that threats were even made against the families of detainees.
The official said the message to a detainee would be: "I'm on the line with somebody in Yemen and he's in a room with your family and a grenade that's going to pop unless you talk."
Framing the Debate