Updated: 7:34 p.m. PT Oct 23, 2006
Speaking publicly for the first time, senior U.S. law enforcement investigators say they waged a long but futile battle inside the Pentagon to stop coercive and degrading treatment of detainees by intelligence interrogators at Guantanamo Bay, Cuba.
Their account indicates that the struggle over U.S. interrogation techniques began much earlier than previously known, with separate teams of law enforcement and intelligence interrogators battling over the best way to accomplish two missions: prevent future attacks and punish the terrorists.
In extensive interviews with MSNBC.com, former leaders of the Defense Department’s Criminal Investigation Task Force said they repeatedly warned senior Pentagon officials beginning in early 2002 that the harsh interrogation techniques used by a separate intelligence team would not produce reliable information, could constitute war crimes, and would embarrass the nation when they became public knowledge.
The investigators say their warnings began almost from the moment their agents got involved at the Guantanamo prison camp, in January 2002. When they could not prevent the harsh interrogations and humiliation of detainees at Guantanamo, they say, they tried in 2003 to stop the spread of those tactics to Iraq, where abuses at Abu Ghraib prison triggered worldwide outrage with the publishing of graphic photos in April 2004.
Their account, confirmed by the Navy's former general counsel, outlines a fierce debate within the Defense Department over the competing goals of justice and security in the war on terror. President Bush has said repeatedly that the detentions at Guantanamo were intended not only to secure intelligence information to prevent al-Qaida attacks, but also to "bring to justice" the terrorists.
As a result, a dual structure of intelligence gathering and criminal investigation, with two arms of the U.S. military, with overlapping missions, interrogating the same prisoners, continues today.
The law enforcement agents, who were building criminal cases against the detainees, also say that military prosecutors told them that abusive interrogations at Guantanamo compromised the chance to bring some suspected terrorists to trial. Among them, the agents say, is Mohammed al-Qahtani, a Saudi whom the Pentagon has described as the intended 20th hijacker in the Sept. 11, 2001, terror attacks.
"We were told by the Office of Military Commissions, based on what was done to him, it made his case unprosecutable," said Mark Fallon, the deputy commander and special agent in charge of the Criminal Investigation Task Force from 2002 to 2004. "It would taint any confession if obtained under coercion. They were unwilling to move forward with any prosecution of al-Qahtani."
A Pentagon spokesman on Friday dismissed this as "speculation," but would not say whether al-Qahtani would be tried. He is not among the 10 detainees who have been approved for a military trial.
It was two years before the photos emerged from Abu Ghraib, the Pentagon cops said, when they began arguing that coercive or abusive interrogations would not serve war-fighting or justice.
"No. 1, it’s not going to work," said Col. Brittain P. Mallow, the commander of the task force from 2002 to 2005.
"No. 2, if it does work, it’s not reliable. No. 3, it may not be legal, ethical or moral. No. 4, it’s going to hurt you when you have to prosecute these guys. No. 5, sooner or later, all of this stuff is going to come to light, and you’re going to be embarrassed."
The members of the criminal task force who spoke with MSNBC.com are experienced criminal investigators. The task force drew from the Army, Navy and Air Force, as well as from the FBI, Secret Service and other law enforcement agencies. These agents are not whistleblowers. Those still serving inside the Department of Defense received authorization to be interviewed by MSNBC.com.
Working in the shadow of Sept. 11, under pressure to prevent another attack on the nation, the investigators found themselves pitted in a war of principle against a unit of young intelligence interrogators, often reservists, with little or no experience.
Based on their experience interrogating al-Qaida members involved in the bombing of the USS Cole and other attacks, the agents preferred an approach to interrogation they called "rapport building."
"We had agents who knew how to do adversarial interviews, had sat across from bad guys," Col. Mallow said. "Interviews and interrogations are not about making someone talk. They are about making them want to."
Early in 2002, when the first detainees were brought from the Afghan front to the barbed wire of Guantanamo, the law enforcement agents said, they saw intelligence interrogators struggle to apply to suspected al-Qaida terrorists the techniques taken from the Army Field Manual. They said frustrated intelligence interrogators were trying whatever they thought might work: One interrogator fancied blaring country and western music and a full cowboy getup during his sessions.
By the summer of 2002, the agents said, the intelligence unit was experimenting with harsher tactics, such as using a cinderblock to hold a detainee in a "stress position" by forcing him to sit on it with his hands chained to the floor.
By the fall of 2002, believing that some detainees had al-Qaida training in resisting interrogation, the intelligence team sought greater leeway from Secretary of Defense Donald H. Rumsfeld. He approved new rules allowing stress positions for up to four hours, deprivation of light and sound, interrogation for up to 20 hours straight, removal of all comfort items (including the Koran and toilet paper), removal of clothing, forced shaving of facial hair, and use of military dogs to scare detainees.
In practice, these new rules were interpreted broadly: According to interrogation logs made public, al-Qahtani, the suspected 20th hijacker, was dressed in women's clothing and led around on a leash while performing dog tricks.
Warnings and alternatives
With increasing frustration, the agents said, they worked for change within the Pentagon in these ways:
- Suggested alternatives to the Army commanders in charge of the Guantanamo intelligence interrogations, Maj. Gen. Michael E. Dunlavey and his replacement, Maj. Gen. Geoffrey D. Miller. They said Dunlavey wouldn’t listen, and Miller questioned their loyalty and patriotism, saying, "If you want to be on the team, you’ve got to put on the uniform." Miller acknowledges saying this. He said he was trying to get the intelligence and law enforcement groups to work together, to repair a situation where they were barely speaking. Dunlavey says he was a supporter of the rapport-building approach, and "torture doesn't work," but he can't say more because he is a defendant in two lawsuits brought by former detainees.
- Refused to participate in interrogations they felt were abusive; reported any signs of criminal acts by the intelligence interrogators; blocked an FBI plan to move al-Qahtani to another country where he could be tortured; and threatened to remove their investigators from Guantanamo entirely if they were forced to watch abusive interrogations.
- Pushed their warnings up the chain of command to the Pentagon’s general counsel, William J. Haynes III, and to officials in Rumsfeld's office. "In some cases, they listened to what we said," said Col. Mallow, the unit’s commander. "In other cases, we just got head nods."
The agents said they were shut out of briefings when senior lawyers from the Bush administration toured Guantanamo on Sept. 25, 2002, while the plan for the aggressive interrogation of al-Qahtani was being formed. The VIP visitors included White House counsel Alberto R. Gonzales, now the attorney general; David S. Addington, legal counsel to Vice President Dick Cheney, now his chief of staff; and Justice Department attorney John Yoo, who helped write memos narrowly defining torture.
They also were surprised not to be contacted during subsequent Pentagon investigations of detainee treatment at Abu Ghraib and Guantanamo, which concluded that there was no policy of abuse. Fallon, Col. Mallow and other investigators recently provided written answers to questions from Sen. Carl Levin of Michigan, the ranking Democrat on the Senate Armed Services Committee, who has told the investigators he plans to issue a report as soon as this week calling for an investigation of Bush administration policies on detainees.
'We will not be a party to this'
"What makes me intensely proud of all these individuals was they said, ‘We will not be party to this, even if we're ordered to do so,’" said Alberto J. Mora, the former general counsel of the Navy, who ultimately got Secretary Rumsfeld to roll back permission for some of the harshest interrogation techniques. "They are heroes, and there's no other way to describe them. They demonstrated enormous personal courage and personal integrity in standing up for American values and the system we all live for."
In the end, the law enforcement investigators said, they were not able to stop abusive interrogations, but they were able to slow them.
"We always said, there are no secrets, just delayed disclosures," said Fallon, the chief investigator. "And what we told our folks is, your grandchildren are going to ask, ‘What did you do during the war?’ We wanted our folks to be proud of what they did."
Mark Fallon is a cop.
The grandson of a police commissioner and son of a deputy chief, he married the daughter of his father’s partner from the detective bureau. He grew up in Harrison, N.J., now best known as "Sopranos" family territory. (The television version of Big Pussy’s auto body shop is just down the street from Fallon's boyhood home, and his boat is the "Bada Bing.") After college, Fallon took his father’s advice to "go federal," first as a deputy U.S. marshal and then in 1981 as an agent for the Naval Criminal Investigative Service.
Working undercover and wearing a rattail haircut as a young agent, he busted Filipino drug dealers in Subic Bay before the ships came in, hoping to discourage sales to American sailors. In 1993, he worked with the FBI on the investigation of the blind sheik, Abdul Omar Abdel-Rahman, who planned to blow up the United Nations and other New York City landmarks. In 1998, he was the lead agent investigating the joyriding Marine aviators from Aviano Air Base who clipped a cable-car wire in Italy, killing 20 tourists. As chief of counterintelligence operations in Europe and the Middle East, Fallon commanded the Navy’s USS Cole Task Force, investigating with the FBI the 2000 al-Qaida suicide bombing that killed 17 sailors in the Yemeni port of Aden.
As an investigator, Fallon has been trained to collect the facts and challenge assumptions. As a civilian who has served the Navy and Marine Corps in 31 countries, he has grown accustomed to speaking truth to people in uniforms – with a New Jersey bluntness if necessary. "If you’re honest and act with integrity," he says, "what else do you need?"
'This Is Your Life'
In January 2002, Fallon was lent by the Navy to the Army to serve as deputy commander and special agent in charge of a new Criminal Investigation Task Force. Based at Fort Belvoir, Va., he supervised agents working in Afghanistan, Iraq and Naval Station Guantanamo Bay, commonly known as "Gitmo," building cases against detainees believed to be al-Qaida members or supporters.
The investigators faced an almost insurmountable challenge at Guantanamo.
They didn’t have names for many of the detainees. It often wasn’t clear what country they were from. A detainee might claim he was a Saudi, then visiting law enforcement agents would recognize him as a Yemeni. Most weren’t picked up by U.S. forces, but were handed over by bounty hunters in the early days of the war in Afghanistan. They were transferred with scant records, often without any "pocket litter," the possessions and documents that can be invaluable to investigators.
The law enforcement team’s mission was to conduct criminal investigations, prepare cases for prosecution, recommend which detainees should be released or held, and pass on intelligence information to other agencies.
But this was no ordinary criminal case. Rumsfeld had called the detainees "the worst of the worst," but what crime had they committed?
"Instead of having a crime scene, a suspect, we had suspects," Fallon said. "So we had to take a suspect … then track that particular person, once we identified who they actually were, through various levels of their life, through possible radicalization, through a possible visit to … a training camp in Afghanistan or elsewhere where they might have learned some of the tradecraft of terrorism. We would then have to determine where they might have been at any particular point in their life, from there determine if any acts occurred in that particular area, and then if the individual might have been involved in any of those acts, and if those acts then would have been a criminal violation. So it was very much different from the way you would traditionally work a criminal investigation."
They called the process "This Is Your Life," after the biographical radio and television show.
Although Pentagon officials have referred to an "elaborate screening process" before detainees were sent to Guantanamo, the law enforcement agents said evidence of criminal activity or intelligence value in some cases was flimsy.
Fallon said two detainees were suspected in a rocket attack against U.S. forces in Afghanistan. The evidence against them was that they were found wearing dark olive green jackets similar to the one worn by the attacker. "I’ve been to Kabul," he said. "That’s the only color jacket I’ve seen."
Because they saw so many detainees they thought didn’t belong there, the investigators decided early in 2002 to expand operations to Afghanistan, to help evaluate detainees before they were sent to Guantanamo. In the end, they were able to develop criminal cases against only about 100 of the roughly 775 detainees who came to Guantanamo.
Out of 445 detainees still remaining at Guantanamo, the Pentagon says "more than 70" are in line for military trials. (See sidebar, In Limbo: Cases are few against Gitmo detainees.)
"There are some mean, nasty people down there," said Jeffery K. Sieber, a former resident agent in charge of the law enforcement task force at Guantanamo. "There’s always been some hard-core people down there who want to do very bad things to the United States. And some who weren’t — but now they’re very upset."
Intelligence unit held lead role
The law enforcement investigators don't control the operations at Guantanamo. The lead role is played by a separate military intelligence unit, the Army’s Joint Task Force 170, later known as the Joint Task Force Guantanamo, which runs the prison and interrogates detainees for intelligence information. Rumsfeld has made clear in public statements that the Bush administration considers the intelligence mission more important than the law enforcement mission.
"Once September 11th occurred and the global war on terror began, people … had in their mind that when you arrested somebody like a car theft or a bank robber, what you do is you put him in jail, then you give him a lawyer, then you have a trial, and then you punish them," Rumsfeld said in a 2004 radio interview. "Of course in this instance, the people in Guantanamo Bay, these are people that were picked up on the battlefield for killing innocent men, women and children in Afghanistan. … They're not car thieves. The purpose is to keep them off the battlefield so they don't kill more innocent men, women and children, and to try to interrogate them and find out what they know so we can stop other terrorists from killing still additional Americans and friends of ours. It isn't a law enforcement task. It's a war on terrorism task."
The Pentagon also has said that the intelligence interrogations at Guantanamo are "guided by a very detailed plan, conducted by trained professionals in a controlled environment, and with active supervision."
But the cops at Guantanamo said the intelligence interrogators were "very challenged."
"The first time most of these interrogators were actually ... in the room with a real bad guy was at Guantanamo Bay," Fallon said, "with this tremendous challenge of trying to elicit information from someone who’s a suspected terrorist."
'Futility' or French fries?
The intelligence team had mostly completed a course at the U.S. Army Intelligence Center at Fort Huachuca in Arizona, where they learned a series of interrogation scenarios described in the Army Field Manual with catchy names: Fear Up Harsh, Pride and Ego Down, Mutt and Jeff, We Know All, Isolation, Futility.
These scenarios are open to wide interpretation. An intelligence officer in Afghanistan was asked by an Army investigator to describe the Fear Up scenario. "Disrespect for the Koran," he began, though there’s nothing about that in the Army Field Manual. "Insult the PUC," or person under custody, "throw a chair inside a room. Have a room upstairs with spotlights. Turn on music very loud, under constant supervision of an MP guard."
The law enforcement investigators, on the other hand, had their own ways of making the detainees talk.
In captured al-Qaida training handbooks, jihadists are told what to expect during interrogation. The U.S. will whip you, use dogs, give you water but not allow you to urinate, isolate you, insult your family. The handbooks say nothing of French fries.
"Some of them really became fond of some fast food French fries, and cheeseburgers," Fallon said, noting that the law enforcement agents made frequent visits to a McDonald’s on the U.S. base.
Wearing polo shirts instead of uniforms, the law enforcement investigators would take off the detainees’ leg irons and handcuffs. Aside from the lack of a lawyer and a Miranda warning, the investigators said they tried to treat the captives as they would any suspect.
The cops call it rapport-building.
"Our folks would sit on the ground with detainees having tea," Fallon said. "Many of the detainees wanted also to be released. And our goal was to obtain accurate information. A good investigator works hard to prove guilt or innocence."
Before the interrogation, they would study. Fallon sought help from a friend from the Naval Criminal Investigative Service, chief psychologist Michael Gelles, to develop training that included Arab culture and social networking, tribal origins, al-Qaida camps, the roles of shame, obedience and secrecy. They brought in Arabic speakers and agents with Middle Eastern experience, who had worked on the USS Cole and East African embassy bombings.
But their main weapon was their experience as cops.
"We were not browbeating them. We were not fussing with them," said Randy Carter, the director of operations at the Guantanamo interrogation "boxes" for the task force.
'In the tropics, beautiful views of the ocean'
"We would create an environment where they were comfortable talking with us. Asking about their families. Have they had any correspondence with them? Is their food acceptable?"
Agents would say, ‘You’re in the tropics, beautiful views of the ocean,’ and some of them would chuckle with that, and that would bring down the barriers that they had built up on themselves," Carter said.
Some were "head hangers," who wouldn't even acknowledge an interrogator, but others loved to talk.
Carter recalled an Australian detainee "coming in to discuss things, and just loving a pepperoni pizza, which is pork, and him being a good Muslim. He knew it. And smoking his Marlboros. Building a rapport is not what they’re used to, and it worked for us. As we built a rapport, it would be ‘yes’ or ‘no.’ Then it would be telling us whether they did or did not do it, and if they didn’t, who did."
At first, the two sets of interrogators, intelligence and law enforcement, tried to work together, crowding into the box with the detainee and an interpreter. These efforts did not go well. The scripted scenarios of the intelligence interrogators, such as Rapid Fire – repeatedly asking the same question with slightly different phrasings no matter what the answer - frustrated the criminal investigators as well as the detainees.
In August 2002, the two teams agreed to take turns, each choosing 200 detainees for an exclusive period of interrogation. But that plan broke down frequently, because the intelligence group had priority.
"If we had a cooperating detainee," Carter said, "we would share that information, but then JTF 170 would get him up in the middle of the night to have him tell them the same information. It impeded our process."
Of greater concern was a different attitude toward abusing or degrading the detainees.
The law enforcement investigators said they saw early on in Afghanistan, before the detainees were shipped to Guantanamo, that the temptation to cross the line would be great - not out of sadism in most cases, but out of confusion about what would work.
"I watched the intelligence community, military and civilian, struggle with how to develop a coherent strategy to deal with terrorist subjects," Col. Mallow said.
"I wish they had asked our law enforcement folks more, had invited us to the table more. We sure did not have all the answers, but I think we could have helped."
On guard against runaway emotions
The messages from the Bush administration and the Pentagon had been mixed: The detainees were to be treated humanely, "consistent with" the Geneva Conventions on treatment of prisoners of war. But they also said that the Geneva Conventions did not apply: These were not prisoners of war, but "enemy combatants."
"We were very, very concerned," Fallon said, "to ensure that we would not, in the heat of battle, in a highly emotional period, in an effort to do the right thing, commit criminal acts."
That moral and legal line was patrolled by Carter, who monitored the interrogation booths in Guantanamo’s Camp Delta. From his observation booth in a triple-wide interrogation trailer, where he could see into two interrogation boxes at once, he was charged with ensuring that the intelligence interrogations, with their flashing lights, stress positions or the man in the cowboy outfit, didn’t contaminate the evidence from legal investigations.
"I told ICE — Interrogation Control Element — I do not want any of our interrogations or interviews in the same trailer as the intel collectors are," Carter said. "We are not to partake of any of their tactics, we are not to witness any of their tactics. We can’t have the foolishness from those folks in the mix."
At this stage, in the summer of 2002, said Col. Mallow, the commander of the law enforcement unit, "We’re not talking about grievous abuse. But frankly some of the things my agents saw were just plain silly and stupid. They were obviously amateurish and not likely to produce good results.
"It would get worse."