Avoiding the Torture Taint: Advice from Military Lawyers

Before the Pentagon’s detainee interrogation policy was finalized in 2002, military officials – both supporters and opponents of the controversial techniques it condoned – concerned themselves primarily with protecting their organizations from scrutiny rather than with preventing the techniques from being instituted in the first place. One senior Pentagon official even recommended removing detainees from the U.S. detention facility in Guantanamo Bay, Cuba, so that techniques that appeared to violate the U.S. Code of Military Justice could not be attributed to his agency.

On November 4, 2002, Sam McCahon, chief legal adviser to the Defense Department’s Criminal Investigation Task Force, raised objections to a legal opinion authored by Lieutenant Colonel Diane Beaver of the Army’s Judge Advocate General Corps that greenlighted a number of controversial interrogation tactics. In a memo to CITF Commander Brittain Mallow, McCahon wrote: ​“Any policy decision to use [techniques that could violate the Constitution’s prohibition on cruel and unusual punishment] will be contrary to my recommendation.”

McCahon was particularly concerned about the harshest techniques outlined in the Beaver memo, including waterboarding, cold weather or water exposure, ​“the use of non-injurious physical contact,” or ​“scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/​or his family.”

“Nonetheless,” McCahon went on, ​“if the application of the requested measures is approved, I recommend the following actions to mitigate the adverse impact on the CITF.”

McCahon suggested first that detainees subjected to harsh treatment be interrogated at a facility other than Guantanamo. In addition, though, he recommended that those selected for harsh interrogations ​“not be a (sic) considered for referral to the Military Commission” in order to ​“reduce the risk that the more aggressive techniques used against a few detainees [will] be revealed.” His last request was that ​“CITF personnel should not participate in aggressive techniques… [to] preserve the integrity of our investigations [and] insulate CITF personnel from potential administrative or criminal liability.”

The goal, in other words, was to keep blood off CITF’s hands.

McCahon wasn’t alone in this thinking. On October 2, 2002, just one month before he sent off his own memo, military and government attorneys – including Beaver – met in Cuba with the official purpose of discussing what they called ​“counter resistance strategy” with Guantanamo officials. In reality, though, they negotiated the implementation and legality of a series of controversial detainee interrogation tactics that would soon become the official policy of the Department of Defense.

“We may need to curb the harsher operations while ICRC is around,” Beaver told the group, according to minutes of the meeting. ​“It is better not to expose them to any controversial techniques…. They will be in and out, scrutinizing our operations, unless they are displeased and decide to protest and leave. This would draw a lot of negative attention.”

The ICRC refers to the International Committee of the Red Cross, which monitors the conditions in which detainees at Guantanamo are kept.

Although Beaver, now retired from the military, was strongly of the opinion that the techniques under discussion were legally permissible, her advice echoed concern over the potential for a public relations disaster expressed by military and law enforcement officials who opposed the use of harsh interrogation techniques.

Bernard Barrett, spokesperson for the ICRC in Washington, DC, said leaders of his organization knew that the military was not providing the group access to all prisoners when they began meeting with detainees at Guantanamo Bay in January, 2002.

To maintain access to the detainees and a working relationship with the government, he said, the ICRC doesn’t divulge to reporters its findings or deliberations with officials. But, he added, ​“any attempt [on the part of the government] to mislead us is not conducive” to maintaining a cooperative relationship. He also said the ICRC is confident that the situation was rectified in September 2004 – almost two years after the harsh interrogation regime was first approved by the Pentagon.

Guantanamo officials weren’t the only ones hoping to distance themselves and their organizations from the so-called coercive techniques. A May 2008 Department of Justice inspector general audit found that senior officials at the Federal Bureau of Investigation had raised concerns about detainee treatment as early as 2002, instructing FBI agents not to participate in questioning sessions alongside military or CIA interrogators using controversial techniques.

However, the FBI did not require agents to report incidents of abuse until the Abu Ghraib scandal broke in 2004. The inspector general report showed ​“a failure of leadership on the part of senior FBI officials,” according to Jameel Jaffer, national security director of the American Civil Liberties Union.