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The Senate Committee found that Rumsfeld in November 2002 had nipped in the bud an in-depth legal review of interrogation techniques at precisely the time when all interested parties were eager for an authoritative ruling as to their lawfulness.
Rumsfeld's order was conveyed to Myers by William "Jim" Haynes II, then the Defense Department counsel, who told Myers to cease and desist. Assured of Myers' and Dalton's cooperation (Dalton was later promoted to Admiral), and relying on the uniformed JAGs not to risk speaking out, Rumsfeld was able to stop the inquiry cold.
The summer of 2002 had brought to interrogators at Guantanamo new techniques adopted from the Korean War practices of Chinese Communist and North Korean interrogators who extracted false confessions from captured American soldiers.
And, as Bush famously told a TV interviewer, "The lawyer said it was legal." Sadly, hired-hand, malleable lawyers were not lacking. On Aug. 1, a memo drafted by John Yoo and signed by the head of the Justice Department's Office of Legal Counsel, Jay Bybee (who was then John Yoo's boss and is now a federal judge), stated that for an act to qualify as "torture":
--"Physical pain " must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.
--"Purely mental pain or suffering...must result in significant psychological harm of significant duration, e.g., lasting for months or even years."
In other words, Bybee was loosening the definition of torture to permit a wide range of abuses that the United States had previously regarded as torture, especially when inflicted on Americans.Adapting/Adopting Chinese Torture Techniques
During the week of Sept. 16, 2002, a group of interrogators from Guantanamo flew to Fort Bragg, North Carolina, for training in the use of these SERE (Survival, Evasion, Resistance, & Escape) techniques, which were originally designed to help downed pilots withstand the regimen of torture employed by China and North Korea.
Now, SERE techniques were being "reverse engineered" and placed in the tool kit of U.S. military and CIA interrogators.
As soon as the Guantanamo interrogators returned from Fort Bragg, senior administration lawyers, including the Pentagon's Haynes, John Rizzo of CIA, and David Addington (counsel to Vice President Dick Cheney) visited Guantanamo to underscore that top administration lawyers were all on board.
And, just to make quite sure there was no doubt about the new license given to interrogators, Jonathan Fredman, chief counsel to CIA's Counterterrorist Center, arrived and gathered the Guantanamo staff together on Oct. 2, 2002, to resolve any lingering questions regarding unfamiliar aggressive interrogation techniques, like the sensation of drowning induced by water-boarding.
Fredman stressed that "the language of the [torture] statutes is written vaguely." He repeated Bybee's Aug. 1 guidance and summed up the legalities in this way: "It is basically subject to perception. If the detainee dies, you're doing it wrong."More Authoritative Guidance Sought
Small wonder that on Oct. 11, 2002, Gen. Michael Dunlavey, the commander at Guantanamo, saw fit to double check with his superior, SOUTHCOM commander Gen. James Hill and request formal authorization to use aggressive interrogation techniques, including water-boarding.
On Oct. 25, 2002, Hill forwarded the request to Gen. Myers and Secretary Rumsfeld, commenting that, while lawyers were saying the techniques could be used, "I want a legal review of it, and I want you to tell me that, policy-wise, it's the right way to do business."
Hill later told the Army Inspector General that he (Hill) thought the request "was important enough that there ought to be a high-level look at it ... [there] ought to be a major policy discussion of this and everybody ought to be involved." Gen. Myers, in turn, solicited the views of the military services on the Dunlavey/Hill request.
The Army, Navy, Marines and Air Force all expressed serious concerns about the legality of the techniques and called for a comprehensive legal review. The Marine Corps, for example, wrote, "Several of the techniques arguably violate federal law, and would expose our service members to possible prosecution."
The Defense Department's Criminal Investigative Task Force (CITF) at Guantanamo joined the services in expressing grave misgivings. Reflecting the tenor of the four services' concerns, CITF's chief legal adviser wrote that the "legality of applying certain techniques" for which authorization was requested was "questionable."