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Wednesday, Jun 18, 2008, 1:57 pm

White House attorneys and American torture

By Brian Beutler, Media Consortium
Divulged in memos, but largely undiscussed at yesterday's bombshell Senate Armed Services hearing about the origins of American torture was a September 25, 2002 meeting at Guantanamo Bay, Cuba between Major General Michael Dunlavey -- who at the time was overseeing interrogations at the detention facility there -- and several of the administrations top lawyers, including Jim Haynes, then general counsel to the Department of Defense, John Rizzo, acting CIA general counsel, David Addington, counsel to the vice president, and Michael Chertoff, then head of the Criminal Division at the Department of Justice.

The trip report is suspiciously short. It notes for the most part that the group received "briefings on Intel successes, Intel challenges, Intel techniques, Intel problems and future plans for facilities," and that they participated in "private conversations."

But, through interviews with Dunlavey and Lieutenant Colonel Diane beaver, author Philippe Sands got to the bottom of that trip. In his new book, Torture Team, Sands writes that the Washington gang came down, in part, to learn how the military was treating a suspect named Mohammed al-Qahtani. "They wanted to know what we were doing to get to this guy," recalled Dunlavey. Beaver said that the message was loud and clear: do "whatever needed to be done." In Sands words, "a green light from the very top -- from the lawyers for Bush, Cheney, Rumsfeld and the CIA.

That message was crucial, because just one week later, on October 2, nine people, including Beaver and CIA attorney John Fredman convened at Guantanamo for a "Counter Resistance Strategy Meeting", where they discussed the implications of the green light, asking questions like, What techniques can we use? and, What constitutes torture? The answers -- written up in meeting minutes and obtained by the Senate Armed Services committee -- are pretty straightforward.

"We may need to curb the harsher operations while ICRC [the International Committee of the Red Cross] is around. It is better not to expose them to any controversial techniques," Beaver told the group.

One attendee, Dave Becker, who oversaw interrogations for the Defense Intelligence Agency, noted, "We have reports from Bagram [Airfield in Afghanistan] about sleep deprivation being used."

Beaver responded, "True, but officially it is not happening. It is not being reported officially. The ICRC is a serious concern. They will be in and out scrutinizing our operations, unless they are displeased and decide to protest and leave."

Fredman later chimed in, "Under the Torture Convention, torture has been prohibited by international law, but the language of the statutes is written vaguely. Severe mental and physical pain is prohibited. The mental part is explained as poorly as the physical.... It is basically subject to perception. If the detainee dies you're doing it wrong.... When the CIA has wanted to use more aggressive techniques in the past, the FBI has pulled their personnel from the theatre. In those rare instances, aggressive techniques have proven very helpful.

To which Beaver responded, "We will need documentation to protect us."

Fredman also provided a constitutional rationale for the aggressive interrogation techniques -- a pre hoc justification for the United States to abuse all enemy combatants, supposedly without falling afoul of the Geneva conventions. "The Torture Convention prohibits torture and cruel, inhumane, and degrading treatment. The US did not sign up on the second part, because of the 8th amendment.... This gives us more license to use more controversial techniques."

In response, Beaver asked about the applicability of the "wet towel" technique, known now to most as waterboarding. Fredman responded, "If a well-trained individual is used to perform this technique it can feel like you're drowning. The lymphatic system will react as if you're suffocating but your body will not cease to function."

When Mark Fallon, then the deputy commander of the Defense Department's Criminal Investigation Task Force, received the minutes of the meeting from Sam McCahon, his chief legal advisor, he wrote, "This looks like the kinds [sic] of stuff Congressional hearings are made of.... Talk of 'wet towel treatment'...would in my opinion; [sic] shock the conscience of any legal body looking at using the results of the interrogations or possibly even the interrogators. Someone needs to be considering how history will look back at this."
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