Harsh Tactics Readied (by Bush Admin officials) Before Their (Legal) Approval

(U) On December 17, 2002, two weeks after the Secretary authorized the interrogation techniques for use at GTMO and with the Khatani interrogation underway, David Brant, the
NCIS Director informed Navy General Counsel Alberto Mora about recent objections raised by
CITF.825 The next day, Mr. Mora met with NCIS Chief Psychologist Dr. Michael Gelles, who
had been to GTMO and was familiar with the interrogation techniques in use there. Dr. Gelles
provided Mr. Mora excerpts ofinterrogation logs reflecting detainee mistreatment. Dismayed by
what he read and heard, Mr. Mora met with Steven Morello, the Army General Counsel, and for
the first time had the opportunity to review the October 11,2002 GTMO request, LTC Beaver's
legal analysis, and the Secretary of Defense's December 2, 2002 authorization of interrogation
techniques for use in GTMO interrogations, which included stress positions, removal ofclothing,
dogs, deprivation of light and auditory stimuli, 20 hour interrogations, forced grooming, and
grabbing, pushi~ and poking detainees. 826 Mr. Mora testified to the Committee: "hen I saw
the December 2 Rumsfeld memo, and then reviewed Lieutenant Colonel Beaver's legal
memorandum, when I saw that the memorandum was completely unbounded concerning the
limit ofabuse that could be applied to the detainees, I knew instantaneously ... that this was a
flawed policy based upon inadequate legal analysis.,,827


The following day, Mr. Mora briefed Navy Secretary Gordon England on the NCIS
report ofdetainee mistreatment and received authorization to meet with DoD General Counsel
Jim Haynes.828 That afternoon, Mr. Mora met with Mr. Haynes and advised him that in his view
"some ofthe authorized techniques could rise to the level oftorture.,,829 He recalled urging the
DoD General Counsel to "think. about the techniques more closely" questioning him "What did
'deprivation oflight and auditory stimuli' mean? Could a detainee be locked in a completely
dark cell? And for how long? A month? Longer? What precisely did the authority to exploit
phobias pennit? Could a detainee be held in a coffm? Could phobias be applied until madness
set in?,,8~O
814



IIIn his January 9,2003 memo, CDR Gallotta concluded:
Category III techniques that threaten death to the detainee or his family (#1) or
which create the misapprehension of suffocation (#3) would likely be judged to
constitute torture under the statute and customary intemationallaw. They reflect
conduct specifically defmed as torture in <18 U.S.C.> § 2340 and recognized as
torture in international law. Category III, technique #4, mild, non-injurious
grabbing and poking, is an assault under the UCMJ. Absent lawful purpose, these
techniques may be per se unlawful.
Category II techniques could also, depending in their implementation, i.e.,
frequency of use, degree ofpain inflicted, or combinations oftechniques, rise to a
level where they could be detennined to be torture. Thus, additional analysis with
specific guidance for implementation is recommended.838
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In the First Bybee memo, the OLe had asserted that "any effort
by Congress to regulate the interrogation ofbattlefield detainees would violate the Constitution's
sole vesting ofthe Commander-in-Chiefauthority in the President.,,932 In keeping with that
finding, the March 14, 2003 fmal OLC memo held that the power to detain and interrogate
enemy combatants arose out ofthe President's constitutional authority as Commander in
Chief. 933 "In wartime," according to the memo, "it is for the president alone to decide what
methods to use to best prevail against the enemy.,,934
(U) In the March 14, 2003 final opinion, the OLC used its broad reading ofthe
Commander-in-Chiefauthority to conclude that "even if' federal criminal statutes "were
misconstrued to apply" to interrogations, the "Department ofJustice could not enforce this law
or any ofthe other criminal statutes.,,935 According to the OLC, "ven ifan
interrogation method arguably were to violate a criminal statute; the Justice Department could
not bring prosecution because the statute would be unconstitutional as applied in this
context.,,93