In June 2004, Gonzales, Haynes and Dell'Orto told the assembled media that the new techniques had worked and America was a safer place: al-Qahtani had admitted he had met Osama bin Laden, that he knew one of the 9/11 pilots, and had been sent to the US by Khalid Sheikh Mohammed. It was also claimed that he had provided detailed information about a number of key people, including José Padilla, the dirty bomber, and Richard Reid, the British shoe bomber. No details were given to support these assertions.
On the face of it, al-Qahtani's interrogation log provided little support for any of these claims. (Nonetheless, he faces trial on terrorism charges at a military commission - possibly later this year.)
At the time al-Qahtani's aggressive interrogation began, Cal Temple, a Defence Department intelligence expert, was in charge of an exploitation team created to support interrogations at Guantánamo.
Had the pressure from the Pentagon produced anything useful?
A measured and thoughtful man, Temple chose his words with care, indicating a negative response to my question. "There was a lot of data of interest," he said. "It was contextual in nature, confirming in nature. Did it help us catch Osama bin Laden? No."
In that same June 2004 press briefing, Gonzales and Haynes went to great lengths to crush any suggestion of a connection between Guantánamo and Abu Ghraib. The facts, however, suggest that there was a link between the two places, and that the Haynes memo had a malign influence over time and distance.One army investigator compared the treatment of al-Qahtani to that displayed so graphically in the Abu Ghraib photos. "Here's this guy manacled, chained down, dogs brought in, put [in] his face, told to growl, show teeth," he said of al-Qahtani, "If you had a camera and snapped that picture, you'd be back to Abu Ghraib."
In August 2003, General Miller made a trip from Guantánamo, where he had taken over as commander from Dunlavey, to Baghdad. He was accompanied by Diane Beaver. They visited Abu Ghraib and found shocking conditions of near-lawlessness. Miller made recommendations to General Ricardo Sanchez, the commander of Coalition Ground Forces in Iraq, to codify and develop proper interrogation techniques. Within two weeks, on September 14 2003, Sanchez signed a memorandum authorising new techniques that plainly violated the Geneva Conventions, and that were similar to those included in the Haynes memo, including environmental manipulation (temperature adjustment), the presence of military dogs, sleep management (four hours' sleep per 24-hour period) and stress positions.
These would have been very familiar to al-Qahtani. The photographic evidence showed abuse beginning at Abu Ghraib on October 17 - one month later. In August 2006, the Pentagon inspector general released his own damning report. This concluded unequivocally that interrogation techniques had migrated to Iraq because operations personnel believed traditional techniques were no longer effective for all detainees. The clear conclusions from the various reports - three in three years - reinforced what Gelles told me about "force drift", the situation where interrogators come to believe that if some force is good, then more will be even better. "If you let slip the dogs, they will run," was the way a former Defence Department official put it.
And so they did, from Guantánamo, to Baghdad, to Basra. A group of British soldiers were charged with allowing or participating in the abuse of Iraqi detainees in Basra in September 2003. The detainees there had been subjected to conditioning processes to prepare them for interrogation, involving "maintaining a stress position and deprivation of sleep whilst hooded and cuffed". One of the detainees died. At least one of the techniques (sleep deprivation) had been approved by Sanchez on September 14, just days after Miller's visit. Colonel Jorge Mendonca, the most senior officer charged, argued that he was advised that sleep deprivation, stress positions and other conditioning processes had been cleared by the chain of command.
The Court Martial Board accepted this defence and dismissed the charges.
But the climate was changing. In June 2006, the Supreme Court overturned President Bush's decision on Geneva, ruling it to be unlawful. The court confirmed that Common Article 3 applied to all Guantánamo detainees. It was as simple as that. Whether they were Taliban or al-Qaida, every one of the detainees had rights under Common Article 3 - and that included Mohammed al-Qahtani.
The majority opinion, reaffirming the "minimal protection" offered by Common Article 3, was written by Justice John Paul Stevens. One of the Justices went even further: Common Article 3 was part of the law of war and of a treaty that the US had ratified. "By Act of Congress," Justice Anthony Kennedy wrote pointedly, "violations of Common Article 3 are considered 'war crimes', punishable as federal offences, when committed by or against United States nationals and military personnel."
Justice Kennedy's remark put the issue of war crimes on the American political agenda. Individuals who had contributed to a violation of Common Article 3 would know that they were at risk of criminal investigation and prosecution. Even more ominously, it underscored the risk of being investigated outside the US. Parties to the international Torture Convention are required to investigate any person who is alleged to have committed torture. If appropriate, they must then prosecute - or extradite the person to a place where he will be prosecuted.
The Torture Convention is also more explicit than Geneva in that it criminalises any act that constitutes complicity or participation in torture. Complicity or participation could certainly be extended not only to the politicians and but also the lawyers involved in the condoning of the 18 techniques. After all, the scheme applied to al-Qahtani was devised by lawyers, reviewed by lawyers, overseen by lawyers.
Interrogation Log of Detainee 063
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