A Window Into CIA's Embrace of Secret Jails

NY Times reports:
In March 2003, two C.I.A. officials surprised Kyle D. Foggo, then the chief of the agency’s main European supply base, with an unusual request. They wanted his help building secret prisons to hold some of the world’s most threatening terrorists.

Kyle D. Foggo, who helped build jails for the C.I.A. in the campaign against terrorism, after his arraignment in San Diego in 2007.

Brent R. Wilkes, right, with his lawyer, Mark Geragos, arriving for a 2007 arraignment connected to dealings with Mr. Foggo.

Mr. Foggo, nicknamed Dusty, was known inside the agency as a cigar-waving, bourbon-drinking operator, someone who could get a cargo plane flying anywhere in the world or quickly obtain weapons, food, money — whatever the C.I.A. needed. His unit in Frankfurt, Germany, was strained by the spy agency’s operations in Afghanistan and Iraq, but Mr. Foggo agreed to the assignment.

“It was too sensitive to be handled by headquarters,” he said in an interview. “I was proud to help my nation.”

With that, Mr. Foggo went on to oversee construction of three detention centers, each built to house about a half-dozen detainees, according to former intelligence officials and others briefed on the matter. One jail was a renovated building on a busy street in Bucharest, Romania, the officials disclosed. Another was a steel-beam structure at a remote site in Morocco that was apparently never used. The third, another remodeling project, was outside another former Eastern bloc city. They were designed to appear identical, so prisoners would be disoriented and not know where they were if they were shuttled back and forth. They were kept in isolated cells.

The existence of the network of prisons to detain and interrogate senior operatives of Al Qaeda has long been known, but details about them have been a closely guarded secret. In recent interviews, though, several former intelligence officials have provided a fuller account of how they were built, where they were located and life inside them.

Mr. Foggo acknowledged a role, which has never been previously reported. He pleaded guilty last year to a fraud charge involving a contractor that equipped the C.I.A. jails and provided other supplies to the agency, and he is now serving a three-year sentence in a Kentucky prison.

The C.I.A. prisons would become one of the Bush administration’s most extraordinary counterterrorism programs, but setting them up was fairly mundane, according to the intelligence officials.

Mr. Foggo relied on C.I.A. finance officers, engineers and contract workers to build the jails. As they neared completion, he turned to a small company linked to Brent R. Wilkes, an old friend and a San Diego military contractor.

The business provided toilets, plumbing equipment, stereos, video games, bedding, night vision goggles, earplugs and wrap-around sunglasses. Some products were bought at Target and Wal-Mart, among other vendors, and flown overseas. Nothing exotic was required for the infamous waterboards — they were built on the spot from locally available materials, the officials said.

Mr. Foggo, 55, would not discuss classified details about the jails. He was not charged with wrongdoing in connection with the secret prisons, but instead accused of steering other C.I.A. business to Mr. Wilkes’ companies in exchange for expensive vacations and other favors. Before leaving the C.I.A. in 2006, he had become its third-highest official, and his plea was an embarrassment for the agency.

After the 2001 terrorist attacks, the intelligence world’s embrace of dark-of-night snatch-and-grabs, hidden prisons and interrogation tactics that critics condemned as torture has stained the C.I.A.’s reputation and led to legal challenges, investigations and internal divisions that may take years to resolve. The Justice Department is now considering opening a criminal investigation, with much of the attention focused on the agency’s network of secret prisons, which have become known as the “black sites.”

From Fringes to Spotlight

The demands of the wars in Iraq and Afghanistan had transformed Mr. Foggo from a fringe player into the C.I.A.’s indispensable man. Before the 9/11 attacks, the Frankfurt base was a relatively sleepy resupply center, running one or two flights a month to outlying stations. Within days of the attacks, Mr. Foggo had a budget of $7 million, which quickly tripled.

He managed dozens of employees, directing nearly daily flights of cargo planes loaded with pallets of supplies, including saddles, bridles and horse feed for the mounted tribal forces that the spy agency recruited. Within weeks, he emptied the C.I.A.’s stockpile of AK-47s and ammunition at a Midwest depot.

He was a logical choice for the prison project: aggressive, resourceful, patriotic, ready to dispense a favor; some inside the C.I.A. jokingly compared him to Milo Minderbinder, the fictional character who rose from mess hall officer to the black-market magnate of Joseph Heller’s World War II novel “Catch-22.”

Early in the fight against Al Qaeda, agency officials relied heavily on American allies to help detain people suspected of terrorism in makeshift facilities in countries like Thailand. But by the time two C.I.A. officials met with Mr. Foggo in 2003, that arrangement was under threat, according to people briefed on the situation. In Thailand, for example, local officials were said to be growing uneasy about a black site outside Bangkok code-named Cat’s Eye. (The agency would eventually change the code name for the Thai prison, fearing it would appear racially insensitive.) The C.I.A. wanted its own, more permanent detention centers.

Eventually, the agency’s network would encompass at least eight detention centers, including one in the Middle East, one each in Iraq and Afghanistan and a maximum-security long-term site at Guantánamo Bay, Cuba, that was dubbed Strawberry Fields, officials said. (It was named after a Beatles song after C.I.A. officials joked that the detainees would be held there, as the lyric put it, “forever.”)

The C.I.A. has never officially disclosed the exact number of prisoners it once held, but top officials have put the figure at fewer than 100.

At the detention centers Mr. Foggo helped build, several former intelligence officials said, the jails were small, and though they were built to house about a half-dozen detainees they rarely held more than four.

The cells were constructed with special features to prevent injury to the prisoners during interrogations: nonslip floors and flexible, plywood-covered walls to soften the impact of being slammed into the wall.

The detainees, held in cells far enough apart to prevent communication with one another, were kept in solitary confinement 23 hours a day. For their one hour of daily exercise, they were taken out of their cells by C.I.A. security officers wearing black ski masks to hide their identities and to intimidate the detainees, according to the intelligence officials.

Just like prisons in the United States, the jailers imposed a reward and punishment system: well-behaved detainees received books, DVDs and other forms of entertainment, which were taken away if they misbehaved, the officials said.

C.I.A. analysts served 90-day tours at the prison sites to assist the interrogations. But by the time the new prisons were built in mid-2003 or later, the harshest C.I.A. interrogation practices — including waterboarding — had been discontinued.

Winning a Promotion

Mr. Foggo’s success in Frankfurt, including his work on the prisons, won him a promotion back in Washington. In November 2004, he was named the C.I.A.’s executive director, in effect its day-to-day administrative chief.

The appointment raised some eyebrows at the agency. “It was like taking a senior NCO and telling him he now runs the regiment,” said A. B. Krongard, the C.I.A.’s executive director from 2001 to 2004. “It popped people’s eyes.”

Mr. Foggo soon became embroiled in agency infighting. The C.I.A. was reeling from criticism that it had exaggerated Iraq’s weapons programs. Mr. Foggo came to Washington as part of a new team that almost immediately began firing top C.I.A. officials, causing anger among veteran clandestine officers. Mr. Foggo’s fast rise and blunt approach unsettled some headquarters officials, according to Brant G. Bassett, a former agency officer and friend who served with Mr. Foggo.

“Dusty went in there with a blowtorch,” Mr. Bassett said. “Some people were overjoyed, but there were a few others who said, we’ve got to take this guy down.”

In 2005, before he came under investigation, Mr. Foggo and other officials, including John Rizzo, the agency’s top lawyer, paid a rare visit to some of the prison sites, assuring C.I.A. employees that their activities were legal, according to former intelligence officials. Mr. Foggo also met with representatives of Eastern European security services that had helped with the prisons. He expressed gratitude and offered assistance — a gesture the officials politely declined.

In February 2007, Mr. Foggo and Mr. Wilkes were indicted. Prosecutors believed that the C.I.A. had paid an inflated price to Archer Logistics, a business connected to Mr. Wilkes that had a $1.7 million C.I.A. supply contract. In return, the prosecutors claimed, Mr. Wilkes had taken Mr. Foggo on expensive vacations, paid for his meals at expensive restaurants and promised him a lucrative job when he retired.

“I was taking a trip with my best friend,” Mr. Foggo said in his defense. “It looked bad, but we had been taking trips together since we were 17 years old.”

Mr. Foggo said he had turned to Mr. Wilkes’ companies to bypass the cumbersome C.I.A. bureaucracy, not to provide a sweetheart deal to his oldest friend. “I needed something done by someone I trusted in private industry,” Mr. Foggo said.

Downfall in Court

Mr. Wilkes maintains his innocence, but he was eventually convicted in a bribery scandal involving former Representative Randall Cunningham of California. Mr. Foggo pleaded guilty and is serving a sentence on the fraud count, but he still maintains that he was unfairly prosecuted.

His lawyer, Mark J. MacDougall, said he believed that Mr. Foggo’s legal problems stemmed in part from controversies over his stint as executive director. “Nobody ever accused Dusty Foggo of putting a dime in his pocket, failing to do his job, or compromising national security,” Mr. MacDougall said. “Dusty may have made some mistakes, but this case was driven by professional animosity at C.I.A. and personal ambition.”

When Mr. Foggo’s lawyers tried unsuccessfully to obtain access to agency files about his role in the prison program, prosecutors complained that he was trying to disclose a secret program. Mr. Foggo claimed that he was reluctant to divulge his role in classified programs and pleaded guilty, in part, to avoid revealing his secrets.

In an Aug. 1, 2007, letter, a C.I.A. lawyer informed Mr. Foggo’s lawyers that they could not review any classified files related to the prisons. The agency’s letter concluded, “In light of the president’s statements regarding the extraordinary value and sensitivity of the C.I.A. terrorist detention and interrogation program, the C.I.A. denies your request in its entirety.”

2 U.S. Architects of Harsh Tactics in 9/11's Wake

NY Times reports:
Jim Mitchell and Bruce Jessen were military retirees and psychologists, on the lookout for business opportunities. They found an excellent customer in the Central Intelligence Agency, where in 2002 they became the architects of the most important interrogation program in the history of American counterterrorism.

Dr. Bruce Jessen joined his Air Force colleague to build a thriving business that made millions of dollars selling interrogation and training services to the C.I.A.

A former Air Force explosives expert and a natural salesman, Dr. Jim Mitchell and his colleague had no expertise on Al Qaeda and had never conducted an actual interrogation. But they had psychological credentials and an intimate knowledge of a brutal treatment regimen used decades ago by Chinese Communists.

They had never carried out a real interrogation, only mock sessions in the military training they had overseen. They had no relevant scholarship; their Ph.D. dissertations were on high blood pressure and family therapy. They had no language skills and no expertise on Al Qaeda.

But they had psychology credentials and an intimate knowledge of a brutal treatment regimen used decades ago by Chinese Communists. For an administration eager to get tough on those who had killed 3,000 Americans, that was enough.

So “Doc Mitchell” and “Doc Jessen,” as they had been known in the Air Force, helped lead the United States into a wrenching conflict over torture, terror and values that seven years later has not run its course.

Dr. Mitchell, with a sonorous Southern accent and the sometimes overbearing confidence of a self-made man, was a former Air Force explosives expert and a natural salesman. Dr. Jessen, raised on an Idaho potato farm, joined his Air Force colleague to build a thriving business that made millions of dollars selling interrogation and training services to the C.I.A.

Seven months after President Obama ordered the C.I.A. interrogation program closed, its fallout still commands attention. In the next few weeks, Attorney General Eric H. Holder Jr. is expected to decide whether to begin a criminal torture investigation, in which the psychologists’ role is likely to come under scrutiny. The Justice Department ethics office is expected to complete a report on the lawyers who pronounced the methods legal. And the C.I.A. will soon release a highly critical 2004 report on the program by the agency’s inspector general.

Col. Steven M. Kleinman, an Air Force interrogator and intelligence officer who knows Dr. Mitchell and Dr. Jessen, said he thought loyalty to their country in the panicky wake of the Sept. 11 attacks prompted their excursion into interrogation. He said the result was a tragedy for the country, and for them.

“I feel their primary motivation was they thought they had skills and insights that would make the nation safer,” Colonel Kleinman said. “But good persons in extreme circumstances can do horrific things.”

For the C.I.A., as well as for the gray-goateed Dr. Mitchell, 58, and the trim, dark-haired Dr. Jessen, 60, the change in administrations has been neck-snapping. For years, President George W. Bush declared the interrogation program lawful and praised it for stopping attacks. Mr. Obama, by contrast, asserted that its brutality rallied recruits for Al Qaeda; called one of the methods, waterboarding, torture; and, in his first visit to the C.I.A., suggested that the interrogation program was among the agency’s “mistakes.”

The psychologists’ subsequent fall from official grace has been as swift as their rise in 2002. Today the offices of Mitchell Jessen and Associates, the lucrative business they operated from a handsome century-old building in downtown Spokane, Wash., sit empty, its C.I.A. contracts abruptly terminated last spring.

With a possible criminal inquiry looming, Dr. Mitchell and Dr. Jessen have retained a well-known defense lawyer, Henry F. Schuelke III. Mr. Schuelke said they would not comment for this article, which is based on dozens of interviews with the doctors’ colleagues and present and former government officials.

In a brief e-mail exchange in June, Dr. Mitchell said his nondisclosure agreement with the C.I.A. prevented him from commenting. He suggested that his work had been mischaracterized.

“Ask around,” Dr. Mitchell wrote, “and I’m sure you will find all manner of ‘experts’ who will be willing to make up what you’d like to hear on the spot and unrestrained by reality.”

A Career Shift

At the time of the Sept. 11 attacks, Dr. Mitchell had just retired from his last military job, as psychologist to an elite special operations unit in North Carolina. Showing his entrepreneurial streak, he had started a training company called Knowledge Works, which he operated from his new home in Florida, to supplement retirement pay.

But for someone with Dr. Mitchell’s background, it was evident that the campaign against Al Qaeda would produce opportunities. He began networking in military and intelligence circles where he had a career’s worth of connections.

He had grown up poor in Florida, Dr. Mitchell told friends, and joined the Air Force in 1974, seeking adventure. Stationed in Alaska, he learned the art of disarming bombs and earned bachelor’s and master’s degrees in psychology.

Robert J. Madigan, a psychology professor at the University of Alaska who had worked closely with him, remembered Dr. Mitchell stopping by years later. He had completed his doctorate at the University of South Florida in 1986, comparing diet and exercise in controlling hypertension, and was working for the Air Force in Spokane.

“I remember him saying they were preparing people for intense interrogations,” Dr. Madigan said.

Military survival training was expanded after the Korean War, when false confessions by American prisoners led to sensational charges of communist “brainwashing.” Military officials decided that giving service members a taste of Chinese-style interrogation would prepare them to withstand its agony.

Air Force survival training was consolidated in 1966 at Fairchild Air Force Base in the parched hills outside Spokane. The name of the training, Survival, Evasion, Resistance, Escape, or SERE, suggests its breadth: airmen and women learn to live off the land and avoid capture, as well as how to behave if taken prisoner.

In the 1980s, Dr. Jessen became the SERE psychologist at the Air Force Survival School, screening instructors who posed as enemy interrogators at the mock prison camp and making sure rough treatment did not go too far. He had grown up in a Mormon community with a view of Grand Teton, earning a doctorate at Utah State studying “family sculpting,” in which patients make physical models of their family to portray emotional relationships.

Dr. Jessen moved in 1988 to the top psychologist’s job at a parallel “graduate school” of survival training, a short drive from the Air Force school. Dr. Mitchell took his place.

The two men became part of what some Defense Department officials called the “resistance mafia,” experts on how to resist enemy interrogations. Both lieutenant colonels and both married with children, they took weekend ice-climbing trips together.

While many subordinates considered them brainy and capable leaders, some fellow psychologists were more skeptical. At the annual conference of SERE psychologists, two colleagues recalled, Dr. Mitchell offered lengthy put-downs of presentations that did not suit him.

At the Air Force school, Dr. Mitchell was known for enforcing the safety of interrogations; it might surprise his later critics to learn that he eliminated a tactic called “manhandling” after it produced a spate of neck injuries, a colleague said.

At the SERE graduate school, Dr. Jessen is remembered for an unusual job switch, from supervising psychologist to mock enemy interrogator.

Dr. Jessen became so aggressive in that role that colleagues intervened to rein him in, showing him videotape of his “pretty scary” performance, another official recalled.

Always, former and current SERE officials say, it is understood that the training mimics the methods of unscrupulous foes.

Mark Mays, the first psychologist at the Air Force school, said that to make the fake prison camp realistic, officials consulted American P.O.W.’s who had just returned from harrowing camps in North Vietnam.

“It was clear that this is what we’d expect from our enemies,” said Dr. Mays, now a clinical psychologist and lawyer in Spokane. “It was not something I could ever imagine Americans would do.”

Start of the Program

In December 2001, a small group of professors and law enforcement and intelligence officers gathered outside Philadelphia at the home of a prominent psychologist, Martin E. P. Seligman, to brainstorm about Muslim extremism. Among them was Dr. Mitchell, who attended with a C.I.A. psychologist, Kirk M. Hubbard.

During a break, Dr. Mitchell introduced himself to Dr. Seligman and said how much he admired the older man’s writing on “learned helplessness.” Dr. Seligman was so struck by Dr. Mitchell’s unreserved praise, he recalled in an interview, that he mentioned it to his wife that night. Later, he said, he was “grieved and horrified” to learn that his work had been cited to justify brutal interrogations.

Dr. Seligman had discovered in the 1960s that dogs that learned they could do nothing to avoid small electric shocks would become listless and simply whine and endure the shocks even after being given a chance to escape.

Helplessness, which later became an influential concept in the treatment of human depression, was also much discussed in military survival training. Instructors tried to stop short of producing helplessness in trainees, since their goal was to strengthen the spirit of service members in enemy hands.

Dr. Mitchell, colleagues said, believed that producing learned helplessness in a Qaeda interrogation subject might ensure that he would comply with his captor’s demands. Many experienced interrogators disagreed, asserting that a prisoner so demoralized would say whatever he thought the interrogator expected.

At the C.I.A. in December 2001, Dr. Mitchell’s theories were attracting high-level attention. Agency officials asked him to review a Qaeda manual, seized in England, that coached terrorist operatives to resist interrogations. He contacted Dr. Jessen, and the two men wrote the first proposal to turn the enemy’s brutal techniques — slaps, stress positions, sleep deprivation, wall-slamming and waterboarding — into an American interrogation program.

By the start of 2002, Dr. Mitchell was consulting with the C.I.A.’s Counterterrorist Center, whose director, Cofer Black, and chief operating officer, Jose A. Rodriguez Jr., were impressed by his combination of visceral toughness and psychological jargon. One person who heard some discussions said Dr. Mitchell gave the C.I.A. officials what they wanted to hear. In this person’s words, Dr. Mitchell suggested that interrogations required “a comparable level of fear and brutality to flying planes into buildings.”

By the end of March, when agency operatives captured Abu Zubaydah, initially described as Al Qaeda’s No. 3, the Mitchell-Jessen interrogation plan was ready. At a secret C.I.A. jail in Thailand, as reported in prior news accounts, two F.B.I agents used conventional rapport-building methods to draw vital information from Mr. Zubaydah. Then the C.I.A. team, including Dr. Mitchell, arrived.

With the backing of agency headquarters, Dr. Mitchell ordered Mr. Zubaydah stripped, exposed to cold and blasted with rock music to prevent sleep. Not only the F.B.I. agents but also C.I.A. officers at the scene were uneasy about the harsh treatment. Among those questioning the use of physical pressure, according to one official present, were the Thailand station chief, the officer overseeing the jail, a top interrogator and a top agency psychologist.

Whether they protested to C.I.A. bosses is uncertain, because the voluminous message traffic between headquarters and the Thailand site remains classified. One witness said he believed that “revisionism” in light of the torture controversy had prompted some participants to exaggerate their objections.

As the weeks passed, the senior agency psychologist departed, followed by one F.B.I. agent and then the other. Dr. Mitchell began directing the questioning and occasionally speaking directly to Mr. Zubaydah, one official said.

In late July 2002, Dr. Jessen joined his partner in Thailand. On Aug. 1, the Justice Department completed a formal legal opinion authorizing the SERE methods, and the psychologists turned up the pressure. Over about two weeks, Mr. Zubaydah was confined in a box, slammed into the wall and waterboarded 83 times.

The brutal treatment stopped only after Dr. Mitchell and Dr. Jessen themselves decided that Mr. Zubaydah had no more information to give up. Higher-ups from headquarters arrived and watched one more waterboarding before agreeing that the treatment could stop, according to a Justice Department legal opinion.

Lucrative Work

The Zubaydah case gave reason to question the Mitchell-Jessen plan: the prisoner had given up his most valuable information without coercion.

But top C.I.A. officials made no changes, and the methods would be used on at least 27 more prisoners, including Khalid Shaikh Mohammed, who was waterboarded 183 times.

The business plans of Dr. Mitchell and Dr. Jessen, meanwhile, were working out beautifully. They were paid $1,000 to $2,000 a day apiece, one official said. They had permanent desks in the Counterterrorist Center, and could now claim genuine experience in interrogating high-level Qaeda operatives.

Dr. Mitchell could keep working outside the C.I.A. as well. At the Ritz-Carlton in Maui in October 2003, he was featured at a high-priced seminar for corporations on how to behave if kidnapped. He created new companies, called Wizard Shop, later renamed Mind Science, and What If. His first company, Knowledge Works, was certified by the American Psychological Association in 2004 as a sponsor of continuing professional education. (A.P.A. dropped the certification last year.)

In 2005, the psychologists formed Mitchell Jessen and Associates, with offices in Spokane and Virginia and five additional shareholders, four of them from the military’s SERE program. By 2007, the company employed about 60 people, some with impressive résumés, including Deuce Martinez, a lead C.I.A. interrogator of Mr. Mohammed; Roger L. Aldrich, a legendary military survival trainer; and Karen Gardner, a senior training official at the F.B.I. Academy.

The company’s C.I.A. contracts are classified, but their total was well into the millions of dollars. In 2007 in a suburb of Tampa, Fla., Dr. Mitchell built a house with a swimming pool, now valued at $800,000.

The psychologists’ influence remained strong under four C.I.A. directors. In 2006, in fact, when Secretary of State Condoleezza Rice and her legal adviser, John B. Bellinger III, pushed back against the C.I.A.’s secret detention program and its methods, the director at the time, Michael V. Hayden, asked Dr. Mitchell and Dr. Jessen to brief State Department officials and persuade them to drop their objections. They were unsuccessful.

By then, the national debate over torture had begun, and it would undo the psychologists’ business.

In a statement to employees on April 9, Leon E. Panetta, President Obama’s C.I.A. director, announced the “decommissioning” of the agency’s secret jails and repeated a pledge not to use coercion. And there was another item: “No C.I.A. contractors will conduct interrogations.”

Agency officials terminated the contracts for Mitchell Jessen and Associates, and the psychologists’ lucrative seven-year ride was over. Within days, the company had vacated its Spokane offices. The phones were disconnected, and at neighboring businesses, no one knew of a forwarding address.


This article has been revised to reflect the following correction:

Correction: August 15, 2009
An article on Wednesday about two former military psychologists who designed the Central Intelligence Agency’s interrogation program in 2002 misstated the credentials of an Air Force officer who criticized the interrogation methods but suggested that the two psychologists had acted out of patriotic motives. The officer, Steven M. Kleinman, is a career intelligence officer and former interrogator; he is not a psychologist and is not “Dr. Kleinman.” (He has master’s degrees in strategic intelligence and forensic sciences, but does not have a doctorate.)

Torture Memos: Inquiry Suggests No Prosecutions

The New York Times reports:

An internal Justice Department inquiry has concluded that Bush administration lawyers committed serious lapses of judgment in writing secret memorandums authorizing brutal interrogations but that they should not be prosecuted, according to government officials briefed on its findings.

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask state bar associations to consider possible disciplinary action, which could include reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.

The conclusions of the 220-page draft report are not final and have not yet been approved by Attorney General Eric H. Holder Jr. The officials said that it is possible that the final report might be subject to further revision but that they did not expect major alterations in its main findings or recommendations.

The findings, growing out of an inquiry that started in 2004, would represent a stinging rebuke of the lawyers and their legal arguments.

But they would stop short of the criminal referral sought by some human rights advocates, who have suggested that the lawyers could be prosecuted as part of a criminal conspiracy to violate the anti-torture statute. President Obama has said the Justice Department would have to decide whether the lawyers who authorized the interrogation methods should face charges, while pledging that interrogators would not be investigated or prosecuted for using techniques that the lawyers said were legal.

The draft report is described as very detailed, tracing e-mail messages between the Justice Department lawyers and officials at the White House and the Central Intelligence Agency. Among the questions it is expected to consider is whether the memos were an independent judgment of the limits of the federal anti-torture statute or were deliberately skewed to justify the use of techniques proposed by the C.I.A.

At issue is the question of whether the lawyers acted ethically and competently in writing a series of Justice Department legal opinions from 2002 to 2007.

The opinions permitted the Central Intelligence Agency to use a number of methods that human rights groups and legal experts have condemned as torture, including waterboarding, wall-slamming and shackling for hours in a standing position. The opinions allowed many of these practices to be used repeatedly and in combination.

The main targets of criticism are John Yoo, Jay S. Bybee and Steven G. Bradbury, who, as senior officials of the department’s Office of Legal Counsel, were principal authors of the opinions.

It was unclear whether all three would be the subject of bar association referrals. One person who saw the report said it did not recommend bar action against Mr. Bradbury.

Mr. Bradbury, and lawyers for Mr. Yoo, now a law professor at Berkeley, and for Mr. Bybee, now a federal appeals court judge in Nevada, all declined to comment Tuesday, saying Justice Department rules require confidentiality for ethics reviews.

The work of other lawyers in the counsel’s office was also questioned in the report, the officials said, but none are believed to be the subject of disciplinary recommendations. The report reaches no conclusions about the role of lawyers at the White House or the C.I.A. because the jurisdiction of the ethics unit does not extend beyond the Justice Department.

The draft report on the interrogation opinions was completed in December and provoked controversy inside the Bush administration Justice Department. But criticism of the legal work in the memos has intensified since last month when the Obama administration disclosed one previously secret opinion from 2002, drafted mainly by Mr. Yoo and signed by Mr. Bybee, and three from 2005, signed by Mr. Bradbury, which for the first time described the coercive interrogation methods in detail.

Michael B. Mukasey, attorney general when the draft report was first completed, was said by colleagues to have been critical of its quality and upset over its scathing conclusions. He wrote a 10-page rebuttal to its findings, and, in his farewell speech to employees, warned against second-guessing the legal work of the department’s lawyers.

Several legal scholars have remarked that in approving waterboarding, the near-drowning method Mr. Obama and his aides have described as torture, the Justice Department lawyers did not cite cases in which the United States government previously prosecuted American law enforcement officials and Japanese World War II interrogators for using the procedure.

In a letter on Monday, the Justice Department advised two Democratic senators on the Judiciary committee, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island, that the former department lawyers who wrote the opinions had until May 4 to submit written appeals to the findings.

The letter, written by Ronald Weich, an assistant attorney general, also said the report had been given to the C.I.A. for review and declassification, and some officials said they expected a version to be made public, probably late this month.

Mr. Durbin and Mr. Whitehouse, who have criticized the Bush administration’s interrogation policies, have repeatedly demanded the release of the report. Mr. Whitehouse is scheduled to hold a hearing on May 13, to examine issues related to the report.

The professional responsibility office first began examining the actions of the lawyers nearly five years ago. Recently, Mr. Holder named Mary Patrice Brown, a senior federal prosecutor in Washington to head the office, moving its longtime chief, H. Marshall Jarrett, to another job within the Justice Department.

Ex-CIA Official: Agency Brass Lied To Congress About Interrogations

"A CIA employee of two decades, McCarthy became convinced that 'CIA people had lied' in that briefing, as one of her friends said later, not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane or degrading," the Washington Post reported in May 2006.

At The Public Record, Jason Leopold writes:

Last week, former CIA Director Michael Hayden and former Attorney General Michael Mukasey sharply criticized President Obama’s decision to release four “torture” memos writing in an op-ed published in the Wall Street Journal that the “disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption.”

Buried in their column was the claim that the methods the CIA used against “high-value” detainees, such as waterboarding, beatings, and stress positions, “were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006.”


“Any protestation of ignorance of those details, particularly by members of those committees, is pretense,” the former Bush officials wrote.

Several prominent Republicans, including Rep. John Boehner, (R- Ohio), and Rep. Pete Hoekstra (R-MI), the ranking Republican on the House Permanent Select Committee on Intelligence, have echoed Hayden’s claims, in an attempt to show Democrats were complicit because they did not protest when they were briefed about the “enhanced interrogation” program and the techniques CIA interrogators intended to use.

“It was not necessary to release details of the enhanced interrogation techniques, because members of Congress from both parties have been fully aware of them since the program began in 2002,” Hoekstra wrote in an op-ed also published in the Wall Street Journal Thursday. “We believed it was something that had to be done in the aftermath of the 9/11 terrorist attacks to keep our nation safe. After many long and contentious debates, Congress repeatedly approved and funded this program on a bipartisan basis in both Republican and Democratic Congresses.”

On Thursday, House Speaker Nancy Pelosi, who had been the ranking minority member of the House Intelligence Committee, vehemently denied that she was told the CIA planned on waterboarding detainees or intended to use other brutal techniques to try and extract information from “war on terror” prisoners.

"My colleague [Porter Goss], the chairman of the committee, has said 'if they say that it's legal you have to know they are going to use them,'" Pelosi said Thursday. "Well, his experience is that he was a member of the CIA, later went on to head the CIA and maybe his experience is that if they tell you one thing they may mean something else. My experience is that they did not tell us they were using that. Flat out. And any -- any contention to the contrary is simply not true.

“They told us they had opinions from the [Justice Department’s] Office of Legal Counsel that they could, but not that they were' using enhanced techniques, 'and that if and when they were used, they would brief Congress at that time. As a member of Intelligence, I thought I was being briefed. I realized that was not true when I became ranking member.”

Questions about what the Democrats knew about the CIA’s torture program were raised two years ago when it was revealed that the CIA had destroyed 92 interrogation videotapes in November 2005 and that the agency had informed Democratic lawmakers about its plans.

Following that disclosure, Rep. Harman’s office released a February 2003 letter she wrote to the CIA advising the agency against destroying the videotapes. The CIA declassified Harman's letter at the congresswoman's request.

“You discussed the fact that there is videotape of [high-level al-Qaeda operative] Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry,” Harman wrote. “I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency.”

Harman's letter did not raise concerns or express disapproval about the CIA's use of so-called "enhanced interrogation techniques." Instead, her letter advised the agency against destroying the videotapes were made out of concern the footage CIA agents captured "would be the best proof that the written record is accurate, if such record is called into question in the future.”

Still, claims that Democrats were fully briefed on the Bush administration’s torture program have been leveled as recently as last December by Vice President Dick Cheney and in books by former Bush officials such as John Yoo, the former Deputy Assistant Attorney General at the OLC who helped draft one of the four memos released last week.

But the veracity of those assertions have been called into question by former CIA official Mary O. McCarthy, who said senior agency officials lied to members of Congress during an intelligence briefing in 2005 when they said the agency did not violate treaties that bar, cruel, inhumane, or degrading treatment of detainees during interrogations, according to a May 14, 2006, front-page story in The Washington Post.

"A CIA employee of two decades, McCarthy became convinced that 'CIA people had lied' in that briefing, as one of her friends said later, not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane or degrading," the Washington Post reported.

"In addition to CIA misrepresentations at the session last summer, McCarthy told the friends, a senior agency official failed to provide a full account of the CIA's detainee-treatment policy at a closed hearing of the House intelligence committee in February 2005, under questioning by Rep. Jane Harman (California), the senior Democrat," The Washington Post reported.

"McCarthy also told others she was offended that the CIA's general counsel had worked to secure a secret Justice Department opinion in 2004 authorizing the agency's creation of "ghost detainees" - prisoners removed from Iraq for secret interrogations without notice to the International Committee of the Red Cross - because the Geneva Conventions prohibit such practices."

In 2004, McCarthy was tapped by the CIA's Inspector General John Helgerson to assist him with internal investigations about the agency’s interrogation methods. The report Helgerson prepared remains classified, but the ACLU filed a Freedom of Information Act lawsuit to have it released publicly.

"McCarthy was not an ideologue, her friends say, but at some point fell into a camp of CIA officers who felt that the Bush administration's venture into Iraq had dangerously diverted US counterterrorism policy. After seeing - in e-mails, cable traffic, interview transcripts and field reports - some of the secret fruits of the Iraq intervention, McCarthy became disenchanted, three of her friends say," the Post reported.

In May 2005, just a few months after the CIA briefed Congress on interrogation methods, Sen. Jay Rockefeller, ranking Democrat on the Senate Intelligence Committee, requested “to see over a hundred documents referred to in [Helgerson’s] report on detention inside the black prison sites," New Yorker reporter Jane Mayer wrote in her book, The Dark Side. "Among the items Rockefeller specifically sought was a legal analysis of the CIA's interrogation videotapes.

"Rockefeller wanted to know if the intelligence agency's top lawyer believed that the waterboarding of [alleged al-Qaeda operative Abu] Zubaydah and [alleged 9/11 mastermind] Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal. The CIA refused to provide the requested documents to Rockefeller.

"But the Democratic senator's mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request he made for these documents to [former CIA Director Porter] Goss in September 2005."

The May 2005 request from Rockefeller took place during the same month that Steven Bradbury, the former head of the OLC, wrote three legal opinions reinstating the torture techniques his predecessor, Jack Goldsmith, had withdrawn.

Bradbury’s memos, released last Thursday, include several footnotes to Helgerson’s report one of which states that the CIA used waterboarding “with far greater frequency than initially indicated” and used “large volumes of water” as opposed to the smaller amount the CIA said it intended to use. In fact, Bradbury's memos, while authorizing brutal techniques, also disputes the conclusions of Helgerson's still classified report that the interrogation techniques violated the Convention Against Torture.

According to a November 9, 2005 story in the New York Times published the same month 92 interrogation videotapes were destroyed, Helgerson’s report “raised concern about whether the use of the techniques could expose agency officers to legal liability.”

"They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhumane and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States," the Times reported. "The officials who described the report said it discussed particular techniques used by the CIA against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world.”

Mayer reported that Helgerson’s report “known as a 'special review,' was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply 'sickening.'"

“The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized. The source said, ‘You couldn't read the documents without wondering, 'Why didn't someone say, "Stop!'""

Mayer wrote that Vice President Dick Cheney stopped Helgerson from fully completing his investigation. That proves, Mayer contends, that as early as 2004 "the Vice President's office was fully aware that there were allegations of serious wrongdoing in The [interrogation] Program."

"Helgerson was summoned repeatedly to meet privately with Vice President Cheney" before his investigation was "stopped in its tracks." Mayer said that Cheney's interaction with Helgerson was "highly unusual."

As a result, McCarthy "worried that neither Helgerson nor the [CIA’s] Congressional overseers would fully examine what happened or why," according to the Post report.

McCarthy told a friend, according to the Post’s account: "She had the impression that this stuff has been pretty well buried. In McCarthy's view and that of many colleagues, friends say, torture was not only wrong but also misguided, because it rarely produced useful results."

In April 2006, 10 days before she was due to retire, McCarthy was fired from the CIA for allegedly leaking classified information to the media, a CIA spokeswoman told reporters at the time.

In October 2007, Hayden ordered an investigation into Helgerson’s office, focusing on internal complaints that the inspector general was on “a crusade against those who have participated in controversial detention programs.”

The CIA said McCarthy had spoken with numerous journalists, including The Washington Post's Dana Priest, who in November 2005 exposed the CIA's secret prison sites, where in 2002 the CIA videotaped its agents interrogating a so-called high-level detainee, Abu Zubaydah.

Following news reports of her dismissal from the CIA, McCarthy, through her attorney Ty Cobb, vehemently denied leaking classified information to the media. McCarthy, who is now in private practice as an attorney, did not return calls for comment.

The CIA said she failed a polygraph test after the agency launched an internal investigation in late 2005. The agency said the investigation was an attempt to find out who provided The Washington Post and The New York Times with information about its covert activities, including domestic surveillance, and it promptly fired her.

After Hayden ordered launched an investigation into Helgerson’s work, the Washington Post reported, citing unnamed sources, that in 2002 Pelosi, Sen. Bob Graham, D-FL, and Rep. Jane Harman, D-CA, and a handful of Republican lawmakers, were “given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make the prisoners talk.”

“Among the techniques described [to the lawmakers], said two officials present, was water-boarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill,” the Post reported. “But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two US officials said.”

The Post story also made identical claims that Hayden and Mukasey leveled in their Wall Street Journal column last week: that Pelosi and other Democratic leaders were privately briefed at least 30 times. Those briefings, according to the Post, “included descriptions of [water-boarding] and other harsh interrogations methods.”

But Graham disputed claims that he and other members of Congress were briefed about the interrogation program.

“Speaking for myself as chairman of the Senate Intelligence Committee from mid-2001 to the end of 2002, I was not briefed on these interrogation techniques,” Graham told National Public Radio Thursday . “[I] am frankly very frustrated that there are these allegations made that everybody knew about it. I think the policy of the Bush administration was to try to bring as many people into the net when they were going to engage in some questionable activity in order to give them cover. In this case, I was not in the net.”

A declassified narrative released Wednesday by the Senate Select Committee on Intelligence says about the politics of the Bush administration’s torture program says Intelligence Committee chairs in both Houses were briefed about the interrogation program in 2002 and 2003. What they were told, however, remains a mystery.

In an interview with Newsweek last month, Sen. Dianne Feinstein, who now chairs the Senate Intelligence Committee and has launched a “review” and “study” of the CIA’s interrogation methods, said, “"I now know we were not fully and completely briefed on the CIA program.”

Feinstein was reacting to a secret report by the International Committee of the Red Cross that was leaked, which described, in shocking detail, the techniques used to interrogate 14 “high-value” detainees.

Interestingly, the magazine quoted an unnamed “U.S. Official” who disputed the charge, and claimed, in language nearly identical to what Hayden wrote in the Wall Street Journal and what was leaked to the Washington Post, “that members of Congress received more than 30 briefings over the life of the CIA program and that Congressional intel panels had seen the Red Cross report.”

Whether that unnamed official was Hayden is unknown. A representative for the former CIA chief did not return calls for comment.

CIA Chief Leon Panetta Orders Closure of Secret Rendition Sites

The Guardian reports:

The head of the CIA moved yesterday to formalise the new Obama administration's break with the past in its approach to national security, when he ordered the final decommissioning of secret overseas sites where the US had held, and in some cases tortured, al-Qaida prisoners.

Leon Panetta told the agency's staff that he was overturning one of the causes of complaint of human rights groups about detentions of terrorist suspects under the Bush regime: the use of private contractors to secure prisoners. From now on private security firms will no longer have any role in the sites, a shift that has the added benefit of saving the CIA some $4m (£2.7m).

The rejection of the services of private security firms in itself marks a clean break with past practices. During the Bush era, contractors enjoyed a bonanza – particularly in Iraq, where they were used to perform many of the roles of the overstretched military.

Panetta said that the sites – which are now empty, having received no new detainees since he took over the agency in February – would be decommissioned under the auspices of the agency itself. His announcement puts into practice the signal given by President Obama on the second day of his administration that he would have the facilities closed.

The overseas detention sites, in Afghanistan, eastern Europe, Thailand and elsewhere, became one of the most potent symbols of George Bush's controversial reign in the White House. Human rights groups protested that they were used for "renditions" of suspects to locations where they were withheld habeas corpus and subjected to harsh interrogations, in some cases amounting to torture.

Up to 100 suspects were held in the sites, about a third of whom were put through interrogation methods that were toughened up after 9/11 well beyond the limitations previously laid down in the army field manual. That included the technique known as water-boarding in which the prisoner has water poured over a cloth placed over his face, inducing the sensation of drowning.

In his email statement to CIA employees, Panetta also made clear that suspects would no longer be "renditioned" to foreign security forces in order for them to be tortured outside the ethical rules set by the US. Under the Bush administration, several suspects are understood to have been flown to countries such as Syria and put at the mercy of their interrogators.

"CIA officers do not tolerate, and will continue to promptly report, any inappropriate behaviour or allegations of abuse. That holds true whether a suspect is in the custody of an American partner or a foreign liaison service," he said.

This week the Red Cross issued a report in which it said that CIA doctors had been used to monitor the health impacts of torture, which it condemned as a "gross breach of medical ethics".

Waterboarding aside, the methods used included slamming prisoners heads against walls and making them stand naked with arms above their heads for two or three days.

Is Bagram Obama's Guantanamo?

The first and last legacy of the Bush detention era is the prison at Bagram Air Base. But torture expert Karen Greenberg writes that there are no signs so far that the Obama administration is going to make any changes there. And still unclear: Who is being held there? Were all the prisoners captured in Aghanistan, or were some brought from other countries? What status do they have? Are they classified as 'prisoners of war' or as Bushian 'unlawful enemy combatants'? How are they being treated?

At Neiman Watchdog, Karen Greenberg writes:

Just when you think you've woken up from a bad dream…

When it comes to offshore injustice and secret prisons, especially our notorious but little known prison at Bagram Air Base in Afghanistan, let's hope the Obama years mean never having to complete that sentence.

In the Bush era, those of us who followed his administration's torture, detention, and interrogation policies often felt like we were unwilling participants in a perverse game of hide-and-seek. Whenever one of us stumbled upon a startling new document, a horrific new practice, a dismal new prison environment, or yet another individual implicated in torture policy, the feeling of revelation would soon be superseded by a sneaking suspicion that we were once again looking in the wrong direction, that the Bush administration was playing a Machiavellian game of distraction with us.

Okay, call it paranoia -- a state of mind well suited to the Age of Cheney -- but when Abu Ghraib finally came to light, it turned out that our real focus should have been on the administration's program of "extraordinary rendition" and the CIA secret flights to the foreign countries that were serving as proxy torturers for the United States. And when one case of torture by proxy, that of Maher Arar, achieved some prominence, we began looking at proxy torturers for the United States, when we should have been looking at legalized policies of torture by the U.S.

Several years ago, British human rights lawyer Clive Stafford Smith placed that jewel in the Bush administration's offshore crown of injustice, Guantanamo, in the category of distraction as well -- distraction, that is, from the far grimmer and more important American detention facility at Bagram Air Base in Afghanistan.

Distracted or not, for at least five years some of us have been seeking the hidden outlines of the torture story. Now, President Obama has given it a visible shape by providing a potential endpoint if not to our investigations, then to our focus. Much of what we focused on in these last years he's declared to be history. Guantanamo will be closed within a year and the American role in the war in Iraq will end as well; torture will once again be banned; a new task force, already assembled, will review all the Bush administration's detention policies; and people like me will, assumedly, finally be out of work and able to write those novels we used to dream about. For us, no more unwelcome obsessions with detention, abuse, and torture.

Bad Times at Bagram

Still, ever since the Oval Office changed hands in January, I've had a nagging feeling that something was amiss. And when I finally focused on it, a single question kept coming to mind: Whatever happened to the U.S. prison at Bagram?

I knew that it had been opened in 2002 on an abandoned Soviet air base the U.S. had occupied and was being massively upgraded after the invasion of Afghanistan, and that its purpose was to hold prisoners in the Global War on Terror at a place as far removed as possible from the prying eyes of American courts or international oversight bodies of any sort. In fact, many of those eventually transported to Guantanamo were originally held under even worse conditions at Bagram and, from early on, they had reported beatings, abuse, and a startlingly wide range of other forms of mistreatment there.

But what else did I know? Thanks to New York Times reporters Carlotta Gall, David Rohde, Tim Golden, and Eric Schmitt, as well as to Alex Gibney's documentary film Taxi to the Dark Side, I knew that two Afghans, Dilawar and Jullah Habibullah, had been beaten to death by U.S. Army interrogators at the prison in December 2002. I also knew that the use of such beatings, as well as various other forms of torture, had been normalized at Bagram at the very beginning of the Bush administration's long march of pain that led to Guantanamo and then on to Abu Ghraib and other prisons in Iraq as well as foreign torture chambers.

From the 2004 Church Report (written by Naval Inspector General Admiral T. Church), I knew that military interrogators and guards at Bagram had been given next to no relevant training for the mission of detention and interrogation. I knew as well that a secret CIA prison was allegedly located apart from the regular detention cells at Bagram. I knew that military officials had declared that the interrogation techniques at Bagram seemed to work better than those being used at Guantanamo in the same period. And that, after the Supreme Court issued a decision in 2004 to allow prisoners at Guantanamo to challenge their detentions, the prison population at Bagram began to grow.

What We Don't Know About a Prison Nightmare

But that was the past. What did I know about the situation in the first weeks of the Obama era?

The unnerving answer was precious little. So, as I had done with Guantanamo and Abu Ghraib, I began by asking the simple questions that had once been so difficult to answer about so many offshore detention facilities of the Bush era: Who was being held at Bagram? How many prisoners were there and from which countries? What status did they have? Were they currently classified as "enemy prisoners of war" or -- in the phrase the Bush administration had so favored in an attempt to confound U.S. courts -- "unlawful enemy combatants"? How were they being treated? What reports on prison conditions had either the U.S. government or interested non-governmental organizations released?

Setting aside the frustrations of the past seven years, I naively tried a basic Google search to see just what was instantly available, only to discover that the answer was essentially nothing.

It turns out that we can say very little with precision or confidence about that prison facility or even the exact number of prisoners there. News sources had often reported approximately 500-600 prisoners in custody at Bagram, but an accurate count is not available. A federal judge recently asked for "the number of detainees held at Bagram Air Base; the number of Bagram detainees who were captured outside Afghanistan; and the number of Bagram detainees who are Afghan citizens," but the information the Obama administration offered the court in response remains classified and redacted from the public record.

We don't even know the exact size of the prison or much about the conditions there, although they have been described as more spartan and far cruder than Guantanamo's in its worst days. The International Committee of the Red Cross has visited the prison, but it remains unclear whether they were able to inspect all of it. A confidential Red Cross report from 2008 supposedly highlighted overcrowding, the use of extreme isolation as a punishment technique, and various violations of the Geneva Convention.

We do know that a planned expansion of the facility is underway and will -- if President Obama chooses to continue the Bush project there -- enable up to 1,100 prisoners to be held (a step which will grimly complement the "surge" in American troops now underway in Afghanistan). There are no figures available on how long most of Bagram's prisoners have been held -- although some, it seems, have been imprisoned without charges or recourse for years -- or how legal processes are being applied there, if at all. Last spring, the International Herald Tribune reported that Afghans from Bagram were sometimes tried in Afghan criminal proceedings where little evidence and no witnesses were presented.

To students of Guantanamo, this sounds uncomfortably familiar. And there's more that's eerily reminiscent of Gitmo's bleak history. According to the New York Times, even four years after Bagram was established, wire cages were being used as cells, with buckets for toilets -- as was also true of the original conditions at Camp X-Ray, the first holding facility at Guantanamo. Similarly, as with Guantanamo, the U.S. has no status of forces agreement with Afghanistan, and so the base and prison can be closed or turned over to the Afghans only on U.S. say-so. Above all, while some Bagram detainees do have lawyers, most do not.

The Prison Where It All Began

While I was wondering about the state of our black hole of incarceration in Afghanistan, the Obama administration issued its first terse statement on the subject. When it came to granting Bagram detainees habeas rights (that is, the right to challenge their detention in U.S. courts), the administration simply stated that it "adheres to [the Justice Department's] previously articulated position": habeas would not be granted.

After all, reasoned the new government lawyers (like their predecessors), Bagram is in an indisputable war zone and different legal considerations should apply. But here's the catch neither the Bush administration, nor evidently the Obama administration, has cared to consider: It's quite possible that these four individuals, like others at Bagram, were not captured on an Afghan battlefield (as the prisoners claim), but elsewhere on what Bush officials liked to think of as the "global battlefield" of the War on Terror, and then conveniently transported to Bagram to be held indefinitely.

The U.S. government refuses to make public any documentation that would support its case and the new court documents, submitted by the lawyers of the Obama Justice Department, are frustratingly blacked out just as those of the Bush era Justice Department always were. At least for the moment then, when it comes to Bagram, tactics and arguments remain unchanged from the Bush years. No wonder journalists and human rights lawyers have lately taken to referring to that prison as the "other Guantanamo," or "Guantanamo II," or more combatively, "Obama's Guantanamo."

Sadly, however, even this is inaccurate. From the get-go, Guantanamo was actually the "other Bagram." The obvious question now is: How will the Obama administration deal with this facility and, in particular, with matters of detention, "enforced disappearance," and coerced testimony? Will these be allowed to continue into the future, Bush-style, or will the Obama administration extend its first executive orders on Guantanamo and torture practices to deal in new ways with the prison where it all began?

Facing Crimes of the Bush Era

President Obama has given a newly convened task force six months -- a long time when people are being held in harsh conditions without charges or recourse -- to consider the matter of Bush administration detention practices and formulate new policies (or, of course, retain old ones). Here are some guidelines that may prove helpful when it comes to Bagram:

1. On secrecy: The appeal to secrecy and national security has been an all-purpose refuge of official rogues for the last seven years. Reconsider it. A sunshine policy should apply, above all else, to detention practices. Ideally, the U.S. should simply release full information on Bagram and the prisoners being held there. When, in specific cases, information is not divulged, the reasons for not doing so should be fully revealed. Otherwise, the suspicion will always arise that such withheld information might be part of a cover-up of government incompetence or illegality. That must be ruled out. It is imperative that President Obama's administration not double down on the Bush administration's secrecy policy from a desire not to look back and so to avoid future prosecutions of Bush officials.

2. On classification of prisoners: The Obama administration should seriously consider declaring the prisoners at Bagram to be "prisoners of war," and so subject to the Geneva Conventions. Currently, they are classified as enemy combatants, as are the prisoners at Guantanamo, and so, in the perverse universe of the Bush administration, free from any of the constraints of international law. The idea that the Conventions are too "rigid" for our moment and need to be put aside for this new extra-legal category has always been false and pernicious, primarily paving the way for the use of "enhanced interrogation techniques."

3. On "ghost prisoners": The Obama administration should reject out of hand the idea that prisoner invisibility is acceptable anywhere, including at Bagram. The International Committee of the Red Cross must be granted access to all of the prisons or prison areas at Bagram, while conditions of detention there should be brought into accordance with humane treatment and standards. No "ghost prisoners" should be allowed to exist there.

4. On guilt and innocence: The belief that there is a categorical difference between guilt and innocence, which went by the wayside in the last seven years, must be restored. All too often, the military brass still assumes that if you were rounded up by U.S. forces, you are, by definition, guilty. It's time to change this attitude and return to legal standards of guilt.

In the Bush years, we taught the world a series of harmful lessons: Americans can be as cruel as others. Americans can turn their backs on law and reciprocity among nations as efficiently as any tribally organized dictatorship. Americans, relying on fear and the human impulse toward vengeance, can dehumanize other human beings with a fervor equal to that of others on this planet.

It's time for a change. It's time, in fact, to face the first and last legacy of Bush detention era, our prison at Bagram Air Base, and deal with it.

Call me a perpetual optimist, but President Obama has the right team in place to address this nightmarish legacy in a wise and timely way. We should expect no less from them than a full restoration of a government responsible to the law, and confident of its power to deter enemies legally -- be it on the battlefield or in the courtroom. So, too, we must expect them to possess the courage to confront truths, even if those truths mean heading down the path towards the prosecution of crimes of the Bush years.

Karen J. Greenberg is the Executive Director of the Center on Law and Security at New York University School of Law. She is the author of The Least Worst Place: Guantanamo's First 100 Days, the editor of the NYU Review of Law and Security, co-editor of The Torture Papers: The Road to Abu Ghraib, and editor of Al Qaeda Now and The Torture Debate in America (Cambridge University Press).

Transcript of Senate Armed Services Committee Hearing on Interrogation of Detainees in U.S. Custody

The Senate Armed Services Committee looks at who approved the use of interrogation techniques at Guantanamo Bay and Abu Ghraib prisons at Afghanistan.

Witnesses testified about interrogation techniques and methods used to question suspected terrorists at U.S. detention facilities in Cuba and Afghanistan. In the final panel, William Haynes answered questions about the use of torture and testified about the role senior Pentagon officials played in developing policies for detainee interrogations and the degree to which the Justice Department and Central Intelligence Agency participated in the decision-making process. In his testimony he did not recall several memos indicating the use and scope of several techniques. However, he acknowledged that several officials had objected to the use of enhanced interrogation techniques despite the desire by Bush administration officials to produce intelligence and results in their efforts to combat terrorism and avoid future terrorist attacks.

Transcript:

00:00:12 Levin, Carl -- THE DEPARTMENT OF DEFENSE, WE WELCOME YOU MR. HAINES. AND IF YOU HAVE AN OPENING STATEMENT, WE WOULD BE HAPPY TO HEAR IT FROM YOU NOW. YOU PUT YOUR MIC ON.
00:00:24 Haynes, William THANK YOU, MR. CHEARM. CHAIRMAN. I DON'T HAVE A FORMAL OPENING STATEMENT EXCEPT TO OBSERVE THAT THIS HEARING TODAY IS PART OF A PROCESS THAT'S BEEN GOING ON FOR SOMETIME NOW AND WILL CONTINUE FOR MANY YEARS TO COME, I'M SURE. HOW OUR COUNTRY DEALS WITH THIS UNPRECEDENTED THREAT IS THE SUBJECT OF DISCUSSION AMONG MEMBERS OF CONGRESS, EXECUTIVE AND THE JUDICIARY, THE MEDIA AND MANY POLITICALLY ACTIVE CITIZENS. THIS IS AS IT SHOULD BE. ULTIMATELY HOWEVER THE END OF THESE DISCUSSIONS CAN ONLY COME WITH HISTORY'S LARGER JUDGMENT OF HOW WELL OUR LEADERS AND VARIOUS BRANCHS OF GOVERNMENT PERFORMED IN WORK, AND THE WORK OF PROTECTING AMERICANS AFTER AN ATTACK AND, OF COURSE, HOW WELL THE COUNTRY REMAINS EQUIPPED TO DEAL WITH THIS THREAT IN THE FUTURE. I WANT TO SAY THAT THIS HEARING TODAY COULD SERVE A LARGER PURPOSE AND A MOST USEFUL PURPOSE. WE ALL RIGHTLY FEAR ANOTHER ASSAULT ON OUR COUNTRY, ONE PERHAPS EVEN MORE HORRIFIC THAN THE LAST. WE KNOW THAT AMERICA'S ENEMIES ARE UNRELENTING. INDEED, SOME OF THOSE WHO HAVE BEEN RELEASED FROM GUANTANIMO HAVE SHOWN THEIR RECIDIVISM THAT HAVE LEFT INNOCENT PEOPLE MAIMED OR KILLED. ALONG WITH MEMBERS OF THIS COMMITTEE AND MANY OTHER AMERICANS, I LOOK FORWARD TO WATCHING OUR NATION'S LEADERS ADVANCE THE CAUSE OF AMERICA'S SECURITY AND FREEDOM. AND FINALLY, MR. CHAIRMAN, I'D LIKE TO ACKNOWLEDGE MY APPRECIATION OF ALL THE MEMBERS OF THE PREVIOUS TWO PANELS FOR THEIR SERVICE, GOOD FAITH, THEIR HARD WORK, AND TRYING TO DEAL WITH THE VERY DIFFICULT ISSUE. I'M READY FOR YOUR QUESTIONS.
00:02:05 Levin, Carl THANK YOU VERY MUCH, MR. HAYNES. IN JULY OF 2002, YOUR COUNSEL CONTACTED THE RECOVERY AGENCY AS WE HEARD EARLIER AND ASKED FOR INFORMATION ABOUT SERE TECHNIQUES. DID YOU ASK THEM TO OBTAIN INFORMATION ON SERE TECHNIQUES?
00:02:28 Haynes, William MR. CHAIRMAN, 2002 -- THE SUMMER OF 2002 WAS SIX YEARS AGO. AND MY MEMORY IS NOT PERFECT. MY MEMORY'S NOT PERFECT EVEN IN MORE RECENT TIMES, BUT SIX YEARS AGO IS SURELY THE CASE. WHAT I REMEMBER IN THE SUMMER OF 2002, A GOVERNMENT-WIDE CONCERN ABOUT THE POSSIBILITY OF ANOTHER TERRORIST ATTACK AS THE ANNIVERSARY OF 9/11 APPROACHED. I ALSO REMEMBER A WIDESPREAD BELIEF THAT THE PEOPLE THAT THE UNITED STATES HAD CAPTURED IN THE WAR ON TERROR WERE NOT PRODUCING AS MUCH INFORMATION AS WE BELIEVED THEY HAD. SIMILARLY, THERE WAS WIDESPREAD FRUSTRATION THAT THE EXISTING DOCTRINE WAS INADEQUATE, AND THAT THE COUNTRY'S CAPABILITIES WERE INADEQUATE TO THE TASK. SO AS THE CHIEF LEGAL OFFICER OF THE DEPARTMENT OF DEFENSE, I WAS INTERESTED IN THAT AND CONCERNED ABOUT IT. I REMEMBER INQUIRING GENERALLY ABOUT WHERE THE SOURCES OF INFORMATION AND EXPERTISE AND THE GOVERNMENT MIGHT BE AS A SENIOR LEADER OF THE DEPARTMENT OF DEFENSE AND A POTENTIAL ADVISOR ON DIFFERENT MATTERS. AND RICHARD WOULD HAVE BEEN THE PERSON I WOULD HAVE ASKED FOR THAT KIND OF INFORMATION.
00:03:51 Levin, Carl OKAY. DO YOU REMEMBER ASKING HIM TO OBTAIN INFORMATION SPECIFICALLY ON SERE TECHNIQUES?
00:03:59 Haynes, William I DON'T REMEMBER THAT SPECIFICALLY, WHAT I DO REMEMBER IS WHAT I SAID ASKING GENERALLY ABOUT THAT. AND I DO ALSO REMEMBER SOMETIME IN THE LATE SUMMER AND THIS IS RECOLLECTION SOMEWHAT REFRESHED FROM RECENT REVIEW OF SOME DOCUMENTS THAT I DID GET SOME INFORMATION. FROM THE JOINT PERSONNEL RECOVERY AGENCY.
00:04:25 Levin, Carl YOU DON'T REMEMBER REQUESTING
00:04:29 Haynes, William WELL, I DON'T REMEMBER REQUESTING, BUT I DO REMEMBER BEING INTERESTED IN IT AND I WOULD HAVE REQUESTED IT THROUGH RICHARD.
00:04:35 Levin, Carl IF YOU REQUESTED IT.
00:04:38 Haynes, William YES, SIR.
00:04:41 Levin, Carl BUT AGAIN, JUST TO BE VERY PRECISE, YOU DON'T REMEMBER REQUESTING INFORMATION ON SERE TECHNIQUES TECHNIQUES.
00:04:47 Haynes, William I DON'T REMEMBER THAT
00:04:48 Levin, Carl ALL RIGHT. YOU MET REGULARLY WITH A SMALL GROUP OF SENIOR ADMINISTRATION LAWYERS INCLUDING MR. GONZALEZ, THE PRESIDENT'S COUNSEL, THE VICE PRESIDENT'S COUNSEL, THE ACTING CIA GENERAL COUNSEL, AND THE DEPARTMENT OF JUSTICE OFFICE, ILLEGAL COUNSEL ATTORNEYS, YOU AND PATRICK PHILBIN DISCUSSING LEGAL MATTERS RELATING TO THE WAR. THIS REQUEST TO FOR THE INFORMATION YOU DESCRIBED YOU DID REQUEST, DID THAT COME FROM THAT GROUP? WAS IT A RESULT OF DISCUSSIONS WITH THAT GROUP?
00:05:24 Haynes, William AGAIN, SIX YEARS AGO IS A LONG TIME. I HAD PROBABLY TEN MEETINGS A DAY. DURING THE COURSE OF MY TIME AS GENERAL COUNSEL. I MET WITH MANY PEOPLE, MANY GROUPS, I MET WITH SUBSETS OF THAT GROUP, MET WITH LARGER SETS OF LAWYERS. THEY WERE INNER AGENCY MEETINGS OF ALL TYPES THROUGHOUT MY TENURE AS GENERAL COUNSEL. SO TO KEY INTO ONE PARTICULAR MEETING WITH A PARTICULAR GROUP OF PEOPLE WITH A SPECIFIC REQUEST IS VERY DIFFICULT FOR ME TO DO.
00:06:02 Levin, Carl I WASN'T ASKING YOU FOR THAT. DO YOU REMEMBER WHETHER YOUR REQUEST WAS AS A RESULT OF DISCUSSIONS WITH THAT GROUP?
00:06:09 Haynes, William NO, SIR, I DON'T.
00:06:11 Levin, Carl NOW TAB TWO, IF YOU'LL TAKE A LOOK AT IT IS THE JULY 26th, 2002, MEMO FROM LIEUTENANT COLONEL TO YOUR OFFICE. AND IT RELATES TO JPRA MEMORANDUM DATED JULY 25th AND ABOUT SERE TRAINING PROGRAMS. DO YOU REMEMBER --
00:06:36 Haynes, William I'M SORRY TO INTERRUPT. THIS SAYS DECEMBER -- OR JULY 26th.
00:06:39 Levin, Carl ALL RIGHT. DID I SAY JULY 25th?
00:06:44 Haynes, William I THOUGHT YOU DID.
00:06:46 Levin, Carl THE REFERENCE WAS TO JULY 25th JCRA MEMORANDUM. DO YOU SEE WHERE THAT SAYS REFERENCE?
00:06:52 Haynes, William I DO.
00:06:53 Levin, Carl DO YOU REMEMBER SEEING THIS MEMO AT THE TIME?
00:07:04 Haynes, William NO, SIR, I DON'T REMEMBER IT AT THE TIME, BUT I'VE SEEN IT BEFORE, AND I'VE SEEN IT A LONG TIME AGO, NOT JUST RECENTLY.
00:07:11 Levin, Carl YOU DON'T REMEMBER SEEING THAT AT THE TIME IT WAS SENT?
00:07:16 Haynes, William NO, SIR, I DON'T.
00:07:19 Levin, Carl IS IT POSSIBLE YOU DID SEE IT THEN?
00:07:22 Haynes, William IT'S POSSIBLE I DID SEE IT. AND THE ADDRESSEE IS THE SECRETARY OF DEFENSE GENERAL COUNSEL, WHICH IS NOT PRECISE TITLE OR WAS NOT MY PRECISE TITLE. BUT IF IT WAS SO ADDRESSED, I WOULD HAVE SEEN IT, PROBABLY.
00:07:40 Levin, Carl NOW, TAB THREE IS AN ATTACHMENT TO THE JULY 26th MEMO IF YOU COULD TAKE A LOOK AT THAT. IT'S A LIST OF PHYSICAL AND PSYCHOLOGICAL PRESSURES USED IN SERE TRAINING, INCLUDING STRESS POSITIONS, WALLING, DEG, EXPOSURE TO BRIGHT FLASHING LIGHTS, SLEEP DEPRIVATION, AND WATERBOARDING. DID YOU SEE THIS DOCUMENT AT THE TIME?
00:08:08 Haynes, William WAS THIS AN ATTACHMENT TO THE OTHER ONE?
00:08:10 Levin, Carl YES.
00:08:11 Haynes, William WELL, IF I'D SEEN THE OTHER ONE AND IF I WAS ATTACHED, I WOULD HAVE SEEN IT.
00:08:16 Levin, Carl DO YOU REMEMBER SPECIFICALLY WHETHER YOU SAW THIS ATTACHMENT AT THE TIME?
00:08:22 Haynes, William I DON'T REMEMBER SPECIFICALLY
00:08:23 Levin, Carl ALL RIGHT. NOW, THERE'S ANOTHER ATTACHMENT. TO LIEUTENANT COLONEL'S JULY 26th MEMO.
00:08:39 Haynes, William IS THAT NUMBER FOUR?
00:08:42 Levin, Carl NUMBER FOUR, AND THE LONG-TERM TRAINING ON STUDENTS. WRITTEN BY THE WITNESS ON OUR FIRST PANEL, AS YOU HEARD AND INCLUDES A PSYCHOLOGICAL ASSESSMENT OF THE TECHNIQUES USED AT THE AIR FORCE, SERE SCHOOL, AND ONE TECHNIQUE USED AT THE NAVY SERE SCHOOL OF WATERBOARDING. DID YOU ASK HIM TO OBTAIN INFORMATION ON THE PSYCHOLOGICAL EFFECTS OF SERE RESISTANCE TRAINING.
00:09:09 Haynes, William I MAY HAVE.
00:09:10 Levin, Carl DID YOU SEE HIS MEMO AT THE TIME?
00:09:20 Haynes, William WE'RE NOW -- THIS IS AN ATTACHMENT TO THE OTHER ONE YOU SAID?
00:09:23 Levin, Carl YES.
00:09:25 Haynes, William IF I HAD SEEN THE FIRST ONE AND IT WAS ATTACHED.
00:09:28 Levin, Carl DO YOU REMEMBER SPECIFICALLY WHETHER YOU SAW THIS MEMO AT THE TIME, THIS ATTACHMENT?
00:09:39 Haynes, William I DON'T SPECIFICALLY REMEMBER WHEN I SAW THIS.
00:09:46 Levin, Carl NOW, DID -- WHEN YOU GOT -- DO YOU REMEMBER RECEIVING THIS? WHAT WOULD YOU HAVE DONE WITH THIS INFORMATION WHEN YOU GOT IT? DO YOU REMEMBER DOING SOMETHING WITH THIS INFORMATION?
00:10:03 Haynes, William I DON'T REMEMBER DOING SOMETHING WITH THIS INFORMATION. WHAT I REMEMBER, SENATOR, AND I'M SORRY ABOUT --
00:10:09 Levin, Carl IT'S ALL RIGHT. IF YOU DON'T REMEMBER, THAT'S OKAY.
00:10:11 Haynes, William MY RECOLLECTION. WHAT I RECALL WAS THE ENVIRONMENT THAT I DESCRIBED EARLIER.
00:10:21 Levin, Carl I UNDERSTAND.
00:10:24 Haynes, William AND I'VE FORGOTTEN WHAT PROMPTED MY INTEREST OTHER THAN THE GENERAL CONCERNS, THERE MAY HAVE BEEN SOME OTHER CATALYST -- BUT, YOU KNOW, I CAN'T BE MORE SPECIFIC.
00:10:50 Levin, Carl DID YOU EVER DISCUSS YOUR TECHNIQUES WITH ANY OTHER SENIOR LAWYERS WITH WHOM YOU MET REGULARLY?
00:11:06 Haynes, William I BELIEVE I DID. DISCUSS SERE TECHNIQUES WITH OTHER PEOPLE IN THE ADMINISTRATION.
00:11:11 Levin, Carl PRIOR TO THE DECEMBER 2 MEMO SIGNED BY THE SECRETARY OF DEFENSE?
00:11:16 Haynes, William YES.
00:11:18 Levin, Carl AND WOULD THAT HAVE HAPPENED ON MORE THAN ONE OCCASION?
00:11:20 Haynes, William I CAN'T REMEMBER.
00:11:21 Levin, Carl WHAT WAS THE GIST OF THOSE CONVERSATIONS?
00:11:28 Haynes, William WELL, I THINK THAT FIRST OFF MY MEMORY IS NOT GREAT. BUT IF I -- IF I WERE TO DISCUSS ANYTHING FURTHER, I THINK I WOULD HAVE TO TALK ABOUT CLASSIFIED INFORMATION.
00:11:49 Levin, Carl WOULD YOU REMEMBER IT BETTER IF THIS WERE A CLASSIFIED SET?
00:11:52 Haynes, William I WOULDN'T BE ABLE TO DISCUSS IT.
00:11:59 Levin, Carl BUT YOU SAY YOUR MEMORY'S NOT --
00:12:01 Haynes, William I DON'T KNOW WHAT THE TRANSCRIPT MIGHT SAY, BUT WHAT I'M TRYING TO RESPOND TO YOUR QUESTION IS DID I EVER DISCUSS SERE TECHNIQUES WITH OTHERS IN THE ADMINISTRATION, AND THE ANSWER IS YES. AND MAYBE THAT'S THE ANSWER TO YOUR QUESTION.
00:12:19 Levin, Carl NO, YOU ANSWERED THAT CLEARLY. THE OTHER ONE WAS WHAT WAS THE GIST OF THOSE CONVERSATIONS?
00:12:27 Haynes, William I COULD NOT -- I COULD NOT TELL YOU THE GIST OF THOSE CONVERSATIONS WITHOUT GOING INTO CLASSIFIED INFORMATION.
00:12:36 Levin, Carl BUT YOU DO REMEMBER THEM?
00:12:37 Haynes, William I DON'T REMEMBER THEM ANYMORE CLEARLY THAN WHAT I'VE ALREADY SAID. I HAVE SEEN INFORMATION OF THIS NATURE BEFORE. I DON'T KNOW PRECISELY WHEN. AND I CANNOT DISCUSS IT FURTHER WITHOUT GETTING INTO CLASSIFIED INFORMATION.
00:12:58 Levin, Carl YOU SAY YOU DON'T REMEMBER IT ANYMORE CLEARLY THAN WHAT YOU'VE SAID. GOING INTO CLASSIFIED SESSION ISN'T GOING TO GIVE US ANYMORE INFORMATION THAN WHAT YOU'VE SAID, YOUR MEMORY'S BAD. THAT'S ALL YOU'VE SAID.
00:13:11 Haynes, William CORRECT.
00:13:12 Levin, Carl THAT'S ALL YOU REMEMBER?
00:13:14 Haynes, William CORRECT.
00:13:17 Levin, Carl I DON'T KNOW WHAT GOING INTO CLASSIFIED SESSION WOULD GO ADD TO IT THEN?
00:13:21 Haynes, William OKAY.
00:13:23 Graham, Lindsey THANK YOU. AND I APPRECIATE SIX YEARS AGO IS A VERY LONG TIME. TRY TO PUT THIS IN CONTEXT OF THIS PUZZLE, SO TO SPEAK, AT LEAST FROM MY POINT OF VIEW. THE GOAL WAS TO GET BETTER INFORMATION FROM PEOPLE AT GUANTANIMO BAY, THAT WAS THE DESIRE OF THIS WHOLE PROJECT. WE'RE AFRAID WE'RE GOING TO BE ATTACKED AGAIN, WE WEREN'T GETTING THE INFORMATION WE WERE HOPED TO OBTAIN. SO WE'RE GOING TO TRY TO COME UP WITH A NEW PROGRAM TO GET BETTER INFORMATION. THAT WAS SORT OF THE TASK AT HAND. I THINK THE GOAL WAS BROADER THAN -- WELL, THE GOAL WAS NOT GUANTANIMO BAY. THE GOAL WAS TO GET BETTER INFORMATION.
00:14:13 Haynes, William THE GOAL WAS TO UNDERSTAND WHAT CAPABILITIES THE COUNTRY HAD TO ELICIT INFORMATION FROM TERRORISTS WHO HAD ATTACKED AND MIGHT HAVE ATTACKED THE COUNTRY.
00:14:24 Graham, Lindsey I TOTALLY UNDERSTAND THAT. I'M NOT SAYING THAT'S NOT A BAD GOAL. I JUST WANT TO KNOW -- THERE'S A REASON FOR EVERYTHING. THE REASON THIS PROJECT AND ALL OF THIS TALK ABOUT INTERROGATION TECHNIQUES AND WHAT WE CAN AND CAN'T DO WAS A RESULT OF TRYING TO GET BETTER INFORMATION FROM HIGH VALUE TARGETS.
00:14:43 Haynes, William WELL, THAT WOULD BE AN OBJECTIVE OF PEOPLE WHO WERE INVOLVED IN THE INTERROGATION, YES, SIR.
00:14:50 Graham, Lindsey OKAY. SO YOU AND OTHERS WERE TASKED WITH THE JOB OF TRYING TO COME UP WITH NEW PROGRAMS THAT WERE NOT ON THE BOOKS AT THAT TIME. THAT WOULD ALLOW US TO GET BETTER INFORMATION. IS THAT NOT WHAT STARTED ALL OF THIS?
00:15:06 Haynes, William NO, SIR, I WASN'T TASKED WITH SUCH A PROJECT. I WAS A SENIOR LAWYER, THE SENIOR LAWYER IN THE DEFENSE DEPARTMENT. AND ONE OF THE MISSIONS THAT OUR DEPARTMENT HAD WAS THE DETENTION AND QUESTIONING OF TERRORISTS CAPTURED IN THE WAR ON TERROR. AS THE SENIOR LAWYER, I HAD TO BE -- FELT I NEEDED TO BE AWARE OF WHAT MY CLIENT WAS UP TO. I WAS ALSO SENIOR MEMBER OF THE ADMINISTRATION INVOLVED IN INNER AGENCY.
00:15:39 Graham, Lindsey RIGHT, I MEAN --
00:15:41 Haynes, William ACTIVITIES.
00:15:42 Graham, Lindsey THERE'S NOTHING WRONG WITH DOING THIS. I'M NOT TRYING TO SAY ANYBODY DID ANYTHING WRONG. IT MAKES PERFECT SENSE WE'RE BEGINNING TO TRY. IF WE DON'T HAVE ADEQUATE INFORMATION, LOOK FOR A WAY TO GET BETTER INFORMATION. AND THE -- ARE YOU FAMILIAR WITH THE MEMO? THE LEGAL ANALYSIS ABOUT THE CONVENTION AGAINST TORTURE AND OTHER STATUTES AND TREATIES?
00:16:05 Haynes, William I BELIEVE I AM, YES, SIR. I THINK THERE HAVE BEEN A LOT OF LABELS AND NAMES ASSOCIATED WITH A MEMO THAT I UNDERSTAND TO BE IN AUGUST.
00:16:14 Graham, Lindsey WERE YOU AWARE IT WAS THE OPINION OF THE DEPARTMENT OF JUSTICE OFFICE OF LEGAL COUNSEL THAT UNLESS THERE WAS MAJOR ORGAN FAILURE INVOLVED IT WOULD NOT BE A VIOLATION OF THE CONVENTION AGAINST TORTURE?
00:16:25 Haynes, William YES, SIR.
00:16:27 Graham, Lindsey SO THERE A LINE OF LEGAL REASONING THAT YOU'RE AWARE OF THAT WAS PRETTY AGGRESSIVE WHEN IT CAME TO THE EXISTING FLAWS IN TERMS OF, WELL, I WOULD THAT SOMETHING SHORT OF MAJOR ORGAN FAILURE, NOT BEING TORTURED IS A PRETTY AGGRESSIVE POINT OF VIEW. WERE YOU AWARE OF THAT BEFORE SECRETARY RUMSFELD APPROVED THE INTERROGATION TECHNIQUES?
00:16:51 Haynes, William I DON'T KNOW WHEN I BECAME AWARE OF THAT, SENATOR.
00:16:56 Graham, Lindsey FAIR ENOUGH. NOW, THESE INTERROGATION TECHNIQUES.
00:16:58 Haynes, William I DON'T REMEMBER THAT.
00:16:59 Graham, Lindsey I UNDERSTAND. THESE INTERROGATION TECHNIQUES THAT SECRETARY RUMSFELD INITIALLY SIGNED OFF ON, THE THREE GROWERS, I THINK THEY WERE 35, IS THAT CORRECT?
00:17:08 Haynes, William NO, SIR, I THINK THERE'S A LOT OF CONFUSION.
00:17:10 Graham, Lindsey OKAY.
00:17:11 Haynes, William OUT THERE, AND PERHAPS IN THIS ROOM. WHEN YOU TALK ABOUT 35 TECHNIQUES, WHAT I THINK ABOUT IS A PRODUCT OF THE WORKING GROUP, WHICH OPERATED FROM JANUARY OF 2003 UNTIL SOMETIME IN THE END OF MARCH, 2003. WHEN YOU TALK ABOUT WHAT SECRETARY RUMSFELD APPROVED FOR THE INTERROGATION OF THE 20th HI-JACKER, YOU'RE TALKING ABOUT A DECISION IN 2002. THERE WERE NOT 35 TECHNIQUES THAT I KNOW OF ASSOCIATED WITH THAT ANALYSIS.
00:17:47 Graham, Lindsey RIGHT. NO, I UNDERSTAND. SO THAT'S A GOOD POINT. THE INTERROGATION OF THE 20th HI-JACKER, AL ZATANI -- IF I GOT HIS NAME RIGHT. THAT INVOLVED THE USE OF DOGS AND HAVING HIM STRIPPED NAKED IN FRONT OF FEMALE PERSONNEL. WAS THAT CORRECT? THAT'S WHAT THIS REPORT FOUND?
00:18:14 Haynes, William WHICH REPORT ARE YOU REFERRING?
00:18:19 Graham, Lindsey THE SCHMITT-FURLOW REPORT.
00:18:22 Haynes, William LET ME UNTANGLE THAT. I SAT THROUGH THE EARLIER TESTIMONY OF THE EARLIER PANELS, AND FRANKLY, WAS ENLIGHTENED FROM SOME THINGS I DON'T THINK I EVER KNEW AND SOME THINGS I'D FORGOTTEN. BUT THE PREVIOUS PANEL WENT INTO GREAT DETAIL ABOUT WHAT WAS APPROVED BY THE SECRETARY OF DEFENSE IN DECEMBER OF 2002 FOR USE OF THE 20th HI-JACKER. AND TWO OF THE ITEMS IN CATEGORY TWO, IF I RECALL, AND I DON'T KNOW IF THOSE DOCUMENTS ARE IN HERE IF I CAN LOOK AT OR NOT. IF IT'S IMPORTANT, YOU CAN POINT THEM TO ME. INVOLVED CLOTHING AND USE OF PHOBIA.
00:19:04 Graham, Lindsey RIGHT.
00:19:07 Haynes, William AND CAPTAIN DALTON AND COLONEL -- EXCUSE ME ADMIRAL DALTON AND COLONEL BEAVER, TESTIFIED AT GREAT LENGTH FOR THIS PANEL ABOUT WHAT WAS APPROVED BY THE SECRETARY OF DEFENSE AND WHAT WAS NOT APPROVED BY THE SECRETARY OF DEFENSE. AND I THINK THEY WERE VERY CLEAR THAT THE VERY WIDELY HELD UNDERSTANDING AMONG PEOPLE WHO WERE KNOWLEDGEABLE ABOUT WHAT WAS APPROVED IN EACH OF THOSE TWO CATEGORIES IS NOT AS YOU'VE DESCRIBED IT. THE USE OF DOGS WAS NOT INTENDED TO BE OR AUTHORIZED TO BE DOGS IN AN INTERROGATION ROOM WITH A DETAINEE. IT WAS TO BE MUZZLED DOGS
00:19:47 Graham, Lindsey OKAY. THE REPORT, THE REPORT FOUND THAT IT WAS A MUZZLED DOG IN A ROOM.
00:19:54 Haynes, William LET ME GET TO THAT IN A MINUTE. AND THE OTHER THING THAT WAS AUTHORIZED AND WIDELY UNDERSTOOD BY PEOPLE KNOWLEDGEABLE ABOUT THE DECISION WAS THAT REMOVAL OF CLOTHING, CLOTHING WAS NOT NEWTY. NUDITY.
00:20:11 Graham, Lindsey OKAY.
00:20:12 Haynes, William I HAVEN'T RESPONDED TO YOUR QUESTION. YOU THEN JUMPED TO SAY THAT IT INVOLVED USE OF DOGS IN A ROOM AND NAKED PEOPLE.
00:20:20 Graham, Lindsey RIGHT.
00:20:22 Haynes, William AND WHAT I THINK YOU'RE REFERRING TO AND I'VE LOOKED AT IT SINCE THIS EXCHANGE THAT YOU HAD WAS A -- AN INVESTIGATION BY LIEUTENANT GENERAL SCHMITT IN CONJUNCTION WITH FURLOW YEARS AFTER THE FACT LOOKING INTO SOME DISCLOSED E-MAILS THAT CAME TO LIGHT AT THE HEADQUARTERS LEVEL TWO YEARS AFTER THE FACT. AND GENERAL SCHMITT INVESTIGATED SOME 24,000 INTERROGATIONS CONDUCTED BETWEEN EARLY 2002 AND EARLY 2005 WHEN HE ISSUED HIS REPORT AND IDENTIFIED LESS THAN A HANDFUL OF PROBLEMATIC INTERROGATIONS. TWO OF WHICH YOU'VE IDENTIFIED. ONE WAS WHEN SOMEBODY WALKED INTO A ROOM WITH A DOG AND I'VE GOT THE PAGES HERE.
00:21:22 Graham, Lindsey YOUR TESTIMONY IS THAT THEY WERE NEVER AUTHORIZED. IF IT HAPPENED, IT WAS UNAUTHORIZED.
00:21:27 Haynes, William THAT IS, BUT I REFER YOU TO PAGES 15 AND PAGE 19.
00:21:34 Graham, Lindsey RIGHT, BUT THAT'S MY POINT. YOU AGREE IF IT DID HAPPEN IT WAS NEVER AUTHORIZED BY YOU OR SECRETARY RUMSFELD?
00:21:40 Haynes, William YES, SIR.
00:21:41 Graham, Lindsey FAIR ENOUGH. NOW, THESE TECHNIQUES THAT WE'RE TALKING ABOUT THAT WERE APPROVED IN DECEMBER AND LATER MODIFIED, THE SERE PROGRAM IN AN UNCANNY WAY WAS MIRRORED.
00:21:55 Haynes, William WELL, I CAN'T SPEAK TO THAT, SENATOR.
00:21:57 Graham, Lindsey WHERE DID THEY COME FROM? SOMEBODY SOMEWHERE HAD TO SIT DOWN AND MAKE A LIST OF THESE ARE THE THREE CATEGORIES, THESE ARE THE THINGS THAT YOU CAN USE IN DIFFERENT COMBINATIONS. SOMEBODY SOMEWHERE HAD TO WRITE THIS STUFF DOWN. WHO WAS THAT SOMEBODY? AND WHERE DID THEY GET THIS INFORMATION FROM?
00:22:14 Haynes, William WELL, I THINK THE LAST PANEL TALKED TO THAT. AND I WOULD JUST REFER YOU TO THE PEOPLE WHO WERE INVOLVED CLOSER TO GUANTANIMO THAN I WAS. I'D ALSO SAY -- I DON'T KNOW IF YOU CAN POINT ME TO SOMETHING ELSE. I'VE NOT SEEN ANY OTHER DOCUMENTS OR ANY OTHER CATEGORIZATION, LIKE CAME FROM GUANTANIMO, ONE, TWO, AND THREE, WITH THOSE PARTICULAR GROUPINGS. THERE WERE A COUPLE, AS I RECALL, A COUPLE OF ITEMIZATIONS THAT FALL IN SOME CATEGORIES.
00:22:56 Graham, Lindsey WHO MADE UP THE LIST?
00:22:57 Haynes, William I DON'T HAVE FIRSTHAND KNOWLEDGE OF WHO MADE UP THE LIST. COLONEL BEAVER TESTIFIED TO HOW
00:23:03 Graham, Lindsey OKAY.
00:23:06 Haynes, William I THINK THERE'S ALSO, IF I MAY, SENATOR, SOME DOCUMENTATION THAT THE DEFENSE DEPARTMENT HAS PROVIDED TO THE COMMITTEE THAT I CAN REFER YOU TO THE DATE STAMP. THAT TALKED ABOUT HOW THEY CAME UP WITH THEIR LIST. AND THE STAMP NUMBERS ARE 008771 AND 00879.
00:23:42 Graham, Lindsey I KNOW MY TIMES, BUT THIS LIST THAT YOUR CLIENT CAME UP WITH, SOMEBODY APPROVED. SECRETARY RUMSFELD?
00:23:52 Haynes, William SECRETARY RUMSFELD APPROVED A SUBSET PROPOSED BY GENERAL HILL.
00:23:54 Graham, Lindsey AND YOU HAD KNOWLEDGE OF THAT LIST?
00:23:56 Haynes, William OH, YES, SIR.
00:24:01 Graham, Lindsey OKAY, THANK YOU.
00:24:06 Levin, Carl THANK YOU.
00:24:08 McCaskill, Claire YOU'VE JUST SAID MR. HAYNES, YOU WERE THE SENIOR LAWYER FOR THE DEPARTMENT OF DEFENSE? CORRECT?
00:24:17 Haynes, William YES, MA'AM, THAT'S CORRECT.
00:24:18 McCaskill, Claire AND SO YOU HAD THAT LOT OF LAWYERS UNDER YOU?
00:24:23 Haynes, William I'LL PUT IT THIS WAY, THERE ARE OVER 10,000 LAWYERS IN THE DEPARTMENT OF DEFENSE.
00:24:28 McCaskill, Claire YOU KNOW A YEAR AND A HALF AGO, THAT WOULD HAVE SHOCKED ME. IT DOESN'T SURPRISE ME TODAY. I'M NOT SURE THAT'S A GOOD THING. YOU HAD RECEIVED INFORMATION ABOUT THIS REQUEST FOR MORE AGGRESSIVE INTERROGATION TECHNIQUES, YOU'VE RECEIVED LEGAL INPUT ABOUT THIS PRIOR TO YOU PRESENTING THIS DOCUMENT FOR APPROVAL BY SECRETARY RUMSFELD, CORRECT? YOU HAD RECEIVED THE INFORMATION FROM THE VARIOUS LAWYERS IN THE SERVICES AND OTHER LAWYERS CRIMINAL INVESTIGATION TASK FORCE? YOU HAD RECEIVED INFORMATION FROM A NUMBER OF LAWYERS THAT WERE ASKING QUESTIONS ABOUT THESE TECHNIQUES, LEGAL QUESTIONS ABOUT THESE TECHNIQUES.
00:25:11 Haynes, William WELL, LET ME TRY TO MAKE SURE I UNDERSTAND YOUR QUESTION. THIS IS AGAIN, SIX YEARS AGO, SO MY MEMORY'S NOT PERFECT. BUT I DO NOT RECALL SEEING THE MEMORANDA THAT I THINK WERE REFERENCED IN THE EARLIER PANEL'S TESTIMONY. THAT'S NOT TO SAY THAT I WASN'T AWARE THAT THERE WAS A LOT OF ANXIETY ABOUT HOW THE DEFENSE DEPARTMENT WOULD QUESTION TERRORISTS. THAT CONCERN WAS PRESENT FROM THE MOMENT THE WAR BEGAN. AND IT REMAINS A VERY INTERESTING AND DIFFICULT ISSUE. AND IT TENDS TO BE FUELLED BY TWO DIFFERENT APPROACHES. IT TENDS TO BE FUELLED ON THE ONE HAND BY LAW ENFORCEMENT-MINDED PEOPLE, PEOPLE OF GOOD FAITH, INTELLIGENT, WITH GREAT INTENTIONS WHO COME AT A PROBLEM WITH A LAW ENFORCEMENT MIND. AND FROM THE OTHER PERSPECTIVE, PEOPLE INTEREST IN THE COLLECTION OF INTELLIGENCE DURING THE CONDUCT OF WARFARE WHO ARE LESS CONCERNED ABOUT PRESERVING A RECORD FOR ULTIMATE CRIMINAL TRIAL.
00:26:31 McCaskill, Claire I DON'T MEAN TO INTERRUPT YOU, BUT I DON'T HAVE A LOT OF TIME AND I HAVE TO GO PRESIDE. I APOLOGIZE IF I APPEAR TO BE RUDE. YOU KNOW, YOU HAVE SAID THAT YOU HAVE RELIED ON THE LEGAL ANALYSIS OF LIEUTENANT COLONEL BEAVER, IS THAT CORRECT?
00:26:48 Haynes, William I READ HER OPINION AND I MADE MY OWN DECISION BASED ON MY OWN ANALYSIS, WHICH WOULD HAVE INCLUDED CONSIDERING HER MEMORANDUM.
00:26:59 McCaskill, Claire DO YOU HAVE ANY THAT YOU PREPARED THAT WOULD HAVE AUGMENTED HER OPINION?
00:27:04 Haynes, William MINE OPINION IS REFLECTED IN THE MEMO YOU HAVE.
00:27:08 McCaskill, Claire THE ONE-PAGE MEMORANDUM THAT DOES NOT CITE ANY LEGAL PRECEDENT WHATSOEVER. IN FACT, IT DOESN'T TALK ABOUT ANY LEGAL PRECEDENT OR GENEVA OR OUR CONSTITUTION OR OUR LAWS?
00:27:19 Haynes, William THAT'S CORRECT.
00:27:20 McCaskill, Claire IS THERE ANY LEGAL DOCUMENT YOU CAN REFER TO TODAY OTHER THAN THE MEMO WRITTEN BY LIEUTENANT COLONEL BEAVER?
00:27:27 Haynes, William WELL, THERE WAS THE PACKAGE THAT CAME UP WITH IT.
00:27:30 McCaskill, Claire WAIT, WAIT, THERE WAS NO LEGAL OPINION IN THAT PACKAGE OTHER THAN HER LEGAL OPINION. WAS THERE ANY OTHER LEGAL OPINION YOU RELIED ON OF THOSE 10,000 LAWYERS IN THE DEPARTMENT OF DEFENSE? WAS THERE ANY LEGAL OPINION WRITTEN LEGAL OPINION, WRITTEN ANALYSIS THAT LAWYERS DO BASED ON LAW AND PRECEDENT THAT YOU RELIED ON OTHER THAN LIEUTENANT COLONEL BEAVER'S OPINION?
00:27:54 Haynes, William I'D LIKE TO RESPOND TO YOUR QUESTION, SENATOR. IT'S IMPORTANT THAT YOU UNDERSTAND HOW THE DEFENSE DEPARTMENT WORKS. D.O.D. HAS 2 1/2 MILLION EMPLOYEES, WORLDWIDE OPERATIONS, AND I WAS THE CHIEF OF LEGAL OFFICER OF THE DEFENSE DEPARTMENT. WHEN I WOULD PUT MY INITIALS ON A DOCUMENT THAT WAS PASSING ON ITS WAY TO THE SECRETARY OF DEFENSE, THAT WAS AN INDICATION THAT I HAD REVIEWED IT AND I FOUND IT LEGALLY SUFFICIENT. I DIDN'T HAVE TIME, IT WASN'T MY PRACTICE. IN FACT, THAT MEMORANDUM THAT YOU HAVE IS ONE OF THE LONGER REFLECTIONS OF SOMETHING THAT I WOULD HAVE DONE PERSONALLY. I TYPED THAT MEMO MYSELF.
00:28:36 McCaskill, Claire OKAY.
00:28:37 Haynes, William IF I MAY, SENATOR, THE PACKAGE IS IMPORTANT. BECAUSE IT REFLECTS NOT ONLY WHERE IT COMES FROM, WHO'S EMPOWERED, BUT ALSO AN UNDERSTANDING OF THE PATTERN AND PRACTICE AND STANDARD OPERATING PROCEDURES AND JUDGMENT EMPLOYED BY THE PEOPLE WHO ARE USING IT. THE SECRETARY HAS LESS TIME THAN THE GENERAL COUNSEL DOES. SAME THING WITH THE CHAIRMAN OF JOINT CHIEFS OF STAFF, HE DOESN'T WRITE LONG MEMORANDUMS, HE INITIALS THINGS. THE FACT THERE'S NOT A DETAILED MEMORANDUM ASSOCIATED WITH THAT IS NOT UNUSUAL.
00:29:19 McCaskill, Claire I'M NOT SAYING IT WAS. I AM JUST TRYING TO GET TO THE BOTTOM OF WHETHER OR NOT THE LEGAL ANALYSIS THAT YOU WERE SUPPOSED TO BE PERFORMING AS YOUR JOB, WHETHER YOU RELIED. WE HAVE A LOT OF LAWYERS THAT WERE EXPERTS IN MILITARY LAW THAT HAVE BEEN SAYING RED LIGHT, RED LIGHT, PROBLEM, THE ONLY ANALYSIS I CAN FIND IN ALL OF THE MATERIAL I'VE REVIEWED AND I'VE REVIEWED A LOT THAT LEGALLY TRY TO LAY DOWN A PREMISE SUPPORTING THIS WAS LIEUTENANT COLONEL BEAVER'S ANALYSIS. AND I AM TRYING TO GET YOU TO ACKNOWLEDGE THAT WAS, IN FACT, WHAT YOU USED.
00:29:57 Haynes, William THERE WAS THAT, THE COMMANDER OF JOINT TASK FORCES, 170 AT THE TIME WHO EXPRESSED HIS OPINION. HE DIDN'T WRITE HIS OPINION AS --
00:30:08 McCaskill, Claire I THINK HE REFERRED TO HER OPINION, DIDN'T HE?
00:30:11 Haynes, William YOU CAN LOOK AT IT.
00:30:13 McCaskill, Claire I THINK WHAT HE SAID IN HIS WAS I'M RELYING ON LIEUTENANT COLONEL BEAVER'S OPINION.
00:30:17 Haynes, William MAY I FINISH?
00:30:18 McCaskill, Claire YES, YOU MAY.
00:30:19 Haynes, William I BELIEVE HE ALSO SAID I THINK THESE ARE LEGAL. GENERAL HILL MADE A SIMILAR ASSERTION. HE MADE THE ASSERTION, AS I RECALL THAT HE BELIEVED ALL OF CATEGORY ONE AND CATEGORY TWO WERE LEGAL AND HE HAD SOME QUESTIONS ABOUT CATEGORY THREE. SO THOSE THREE LAYERS COMING UP TOGETHER WITH MY UNDERSTANDING OF THE PACKAGE, MY DISCUSSIONS WITH MY STAFF AND CAPTAIN DALTON AND HER STAFF TO THE EXTENT THIS WAS ONE. LED ME TO MAKE THE CONCLUSION
00:30:55 McCaskill, Claire OKAY. . AND I DON'T BELIEVE GENERAL HILL IS A LAWYER, IS HE?
00:31:02 Haynes, William NO.
00:31:03 McCaskill, Claire AND I DON'T BELIEVE MAJOR DUNLEAVY IS A LAWYER, IS HE?
00:31:08 Haynes, William HE'S A JUDGE. AND GENERAL HILL HAS A LAWYER. HAD A LAWYER. HE WAS THE COMMANDER. HE HAD A LEGAL STAFF, A STAFF -- AND HE WROTE THE MEMORANDUM AS IS REFLECTED IN YOUR FILES. AND YOU CAN READ IT. BUT I HEARD THE EKE CHANGE ON THE EARLIER PANEL ABOUT --
00:31:33 McCaskill, Claire I IMMUNITY.
00:31:35 Haynes, William NO, THE DIFFICULTIES WITH THE STAFF, WHICH WAS NEWS TO ME.
00:31:38 McCaskill, Claire OKAY. A MINUTE AGO YOU TALKED ABOUT THE TWO APPROACHES. AND YOU SAID THERE'S THE PEOPLE FROM LAW ENFORCEMENT AND THEN THERE'S THE PEOPLE THAT ARE IN A TIME OF WAR AND THEY'RE TRYING TO GET INTELLIGENCE. YOU KNOW THE IDEA OF GETTING INTELLIGENCE IS GETTING RELIABLE INFORMATION. AND IT APPEARS TO ME THAT THE MOST EXPERIENCED PEOPLE IN OUR COUNTRY AT GETTING RELIABLE INFORMATION FROM PEOPLE WHO ARE WANTING TO HARM OTHER PEOPLE ARE, IN FACT, LAW ENFORCEMENT. THAT'S WHAT THEY DO.
00:32:12 Haynes, William SENATOR --
00:32:16 McCaskill, Claire THEY UNDERSTAND INTERROGATION TECHNIQUES, MUCH BETTER. AND THAT'S WHAT THEIR PROFESSION EMBRACES IS INTERROGATION TECHNIQUES. AND I CAN ENSURE YOU THAT THERE ARE MANY INSTANCES OF TOUGH, TOUGH INTERROGATION TECHNIQUES WITHIN THE FRAMEWORK OF CRIMINAL INTERROGATION WITHIN THE CONSTITUTIONAL FRAME BWORK OF OUR COUNTRY, BUT NONETHELESS, WE HAVE TO GET REALLY SOLID GOOD INFORMATION IN ORDER TO KEEP PEOPLE FROM DYING, IN ORDER TO KEEP PEOPLE FROM BEING HURT ON A CONSTANT ONGOING BASIS, I'M TRYING TO FIGURE OUT WHY THERE SHOULD BE TWO SETS OF LAWS ASSOCIATED WITH THAT. IF THE GOAL IS TO GET GOOD INFORMATION, WHY THERE WOULD BE TWO DIFFERENT SETS OF RULES.
00:32:58 Haynes, William IT'S A VERY INTERESTING PROPOSITION WITH A LOT OF PIECES. LET ME TRY TO ADDRESS THAT. FIRST, LET ME TELL YOU THAT I HAVE ONLY THE HIGHEST REGARD FOR THE LAW ENFORCEMENT COMMUNITY. I AGREE WITH YOU THAT THEY'RE SKILLED, PROFESSIONAL, WELL-INTENTIONED PEOPLE WHO DO GREAT WORK IN A PARTICULAR ENVIRONMENT. AND OH, BY THE WAY, THERE WERE LOTS OF LAW ENFORCEMENT PEOPLE AT GUANTANIMO WHO WERE EQUALLY FRUSTRATED, INCLUDING THE FBI. SO I DON'T MEAN FOR A MINUTE IN TRYING TO DESCRIBE THE ENVIRONMENT THAT THE COUNTRY FACED AT THE TIME AND STILL FACES FRANKLY. AS FAVORING ONE OVER ANOTHER. I'M JUST DESCRIBING THE EXISTENCE OF A SET OF CONFLICTING PHILOSOPHICAL APPROACHES THAT ARE FUELLED BY VERY DIFFERENT PURPOSES. THE LAW ENFORCEMENT COMMUNITY TO BE SURE, AS YOU SAY, IS THERE TO PROTECT US. THERE TO ENFORCE THE LAWS AND TO PROTECT US AND ULTIMATELY TO DEVELOP A RECORD TO PROSECUTE AND PUNISH WRONG-DOERS. BECAUSE OF OUR CONSTITUTIONAL SYSTEM AND OUR FANTASTIC SYSTEM OF CRIMINAL JUSTICE IN OUR COUNTRY, WE HAVE A VERY GENEROUS SET OF PROCEDURAL UNDERPINNINGS THAT THE LAW ENFORCEMENT COMMUNITY HAS TO BE MINDFUL OF IN THE WAY IT INTERROGATES PEOPLE.
00:34:21 McCaskill, Claire I'M NOT TALKING ABOUT THAT, SIR, I'M TALKING ABOUT WHAT WORKS. I'M TALKING ABOUT WHAT'S EFFECTIVE. I'M TALKING ABOUT HOW YOU GET GOOD INFORMATION. YOU KNOW, WHAT HAS BEEN TALKED ABOUT OVER AND OVER AND OVER AGAIN IN THE SENATE, IN THIS ROOM, IN OTHER ROOMS LIKE THIS THROUGHOUT THIS CAPITAL IS NOT -- IT'S NOT JUST A MATTER OF LEGAL ANALYSIS.
00:34:42 Haynes, William I AGREE --
00:34:44 McCaskill, Claire PEOPLE WILL TELL YOU WHAT YOU WANT TO HEAR, IF YOU'RE TORTURING THEM. IT'S NOT AN EFFECTIVE WAY TO GET INFORMATION AND LAW ENFORCEMENT KNOWS THAT. AND, YOU KNOW, FRANKLY, I WISH I DIDN'T HAVE TO GO PRESIDE, BUT MY TIME IS UP.
00:35:00 McCaskill, Claire BUT SENATOR, I NEED TO RESPOND THAT. NOBODY HAS ADVOCATED TORTURE, PERIOD. I DON'T ADVOCATE TORTURE. I DON'T QUESTION YOUR APPRECIATION THAT EFFECTIVE INTERROGATION IS WHAT WE'RE AFTER. I AGREE WITH THAT. I'M NOT AN INTERROGATOR. I'M NOT AN INTELLIGENCE OFFICER, I'M NOT AN FBI PERSON, I'M A LAWYER. AND MY JOB IN THIS EXERCISE THAT WE'RE PROBABLY GOING TO GET INTO AT THIS POINT IS WHAT DOES THE LAW PERMIT AND PROHIBIT? AND IT'S IMPORTANT TO UNDERSTAND THOSE TWO CON TLIKTING APPROACHES FROM THE EXPERTS OF WHICH I AM NOT. IN APPRECIATING HOW I CAN RESPOND TO YOUR QUESTION, DID I KNOW THAT THERE WERE PEOPLE WHO HAD PROBLEMS WITH THE APPROACHES? ABSOLUTELY. AND I BELIEVE AND BELIEVED AT THE TIME THAT IT SPRANG FROM THOSE THINGS BECAUSE I SAW IT REPEATEDLY AND I SEE IT NOW. AND THE EFFECTIVENESS OF INTERROGATION APPROACHES IS SOMETHING THAT WE ALL WANT. BUT MANY -- IN MY EXPERIENCE AS AN OBSERVER, A RELUCTANT OBSERVER OVER THE LAST SIX YEARS OF GENERAL COUNSEL DOING THESE KINDS OF THINGS I HAD NO IDEA I WAS GOING TO GET INTO WHEN I TOOK THE JOB IS THAT IT IS CASE BY CASE, PERSON BY PERSON, SITUATION BY SITUATION, AND TYPE OF INFORMATION BY TYPE OF INFORMATION AS TO WHAT IS THE BEST AND WHAT IS THE MOST APPROPRIATE APPROACH.
00:36:36 Levin, Carl THANK YOU, SENATOR.
00:36:42 Inhofe, James THANK YOU, MR. CHAIRMAN.
00:36:44 Inhofe, James THERE WE GO, GOT IT WORK. MR. HAYNES, HOW ARE YOU? HI, APPRECIATE YOU'RE BEING HERE TODAY. IF WE COULD ALL REMEMBER RIGHT AFTER 9/11, EVERYONE WAS EXPECTING SOMETHING ELSE TO HAPPEN, AND I THINK WE HAVE DOCUMENTATION NOW THAT THERE WERE A LOT OF PLANS OUT THERE THAT WERE SUCCESSFULLY ABLE TO STOP IN ONE WAY OR ANOTHER. THE FT. DIX PLOT, THE JFK AIRPORT PLOT, AND THE MEDIA HAD QUITE A FEW THINGS FROM THE WASHINGTON POST, DIRTY BOMB TERRORIST PLOT. A YEAR AFTER, THIS WAS IN THE L.A. TIMES BY JOSH MYER, SIGNALS HIGH RISK ON NEW ATTACKS, TERRORISM ALERTS AND ALL OF THAT. I WOULD ASSUME THAT A NUMBER OF THINGS LED TO AND PROMPTED THE USE OF NEW TECHNIQUES. I ASSUME THAT'S A PART OF WHAT LED TO THE NEW TECHNIQUES. WILL YOU KIND OF TELL US, HOW DOES D.O.D. CHANGE TECHNIQUES? AND WHERE DO THE NEW TECHNIQUES COME FROM?
00:37:50 Haynes, William I'LL TRY TO ANSWER THAT, SENATOR, BUT LET ME RESPOND TO YOUR OPENING. YOU'RE ABSOLUTELY RIGHT THAT THE CONTEXT IS VERY IMPORTANT. YOU'VE LISTED A NUMBER OF INCIDENTS I'D FORGOTTEN ABOUT, FRANKLY, BUT THE TIME THIS PARTICULAR PROPOSAL WE'RE TALKING ABOUT TODAY CAME UP, THE FALL OF 2002, THE DEFENSE DEPARTMENT HAD DISCOVERED MONTH AFTER HE HAD ARRIVED THAT A PERSONAL PERSON WAS LIKELY THE 20th HI-JACKER THAT WOULD HAVE BEEN THE PILOT ON THE PLANE THAT WENT DOWN IN PENNSYLVANIA. NOW IN THE FALL OF 2002, WE HAD JUST PAST THE ANNIVERSARY OF 9/11. AND OUR INTELLIGENCE PEOPLE TELL US THAT ANNIVERSARY DATES ARE IMPORTANT TO AL QAEDA. THE BOMBINGS, WHICH KILLED HUNDREDS OF INNOCENT PEOPLE HAPPENED ON OCTOBER 12th, 2002, THE D.C. SNIPERS, WHICH TERRORIZED THIS CITY HAD JUST BEEN CAPTURED, AND PEOPLE WEREN'T CERTAIN WHERE THEY WERE FROM, WHETHER THEY WERE ASSOCIATED WITH THE EXTERNAL THREAT OR WHETHER THEY WERE WHAT THEY TURNED OUT TO BE. THE ANTHRAX CASES OF A YEAR EARLIER HAD STILL NOT BEEN SOLVED. ISSUED A VIDEO THREAT ON OCTOBER 8th, 2002 SAYING, QUOTE, GOD WILLING, WE WILL CONTINUE TARGETING THE KEYS TO THE AMERICAN ECONOMY. IN EARLY IN THE SUMMER OF 2002, THERE WERE DEADLY ATTACKS IN PAKISTAN AND TY NEARBY YA, THERE WAS A CAPTURE EARLIER THAT YEAR OF AN AMERICAN CITIZEN WHO WAS WHO WAS SUSPECTED OF BEING INVOLVED IN A DIRTY BOMB PLOT AND PLENTY OF OTHER CLASSIFIED INFORMATION. ONE OF THE THINGS THAT THE INTELLIGENCE COMMUNITY WAS CONCERNED ABOUT WAS THAT THE PERSON WHO CAME INTO ORLANDO AIRPORT IN AUGUST OF 2001, A MONTH BEFORE 9/11 TO BE MET BY MUHAMMAD -- THE PILOT -- THE RING LEADER OF 9/11 ATTACKS AND HAD BEEN TURNED AWAY, WHETHER HE HAD A COMPANION ON THAT PLANE, BECAUSE OTHERS HAD COME INTO THE COUNTRY IN PAIRS. AND THERE WERE PEOPLE ROAMING AROUND THE COUNTRY AND WHETHER HE HAD INFORMATION ABOUT OTHER PLOTS. SO THERE WAS A HIGH DEGREE OF URGENCY TO DEAL WITH THIS. NOW YOUR QUESTION, HOW DO THEY COME UP WITH OTHER INTERROGATION TECHNIQUES? AGAIN, I WOULD REFER IN THIS CASE TO THE PREVIOUS PANEL THAT TALKED ABOUT THAT AND TO THE DATE STAMP DOCUMENTS I TOLD YOU ABOUT. BUT THE BOTTOM LINE UNDERSTANDING THAT I HAVE, SENATOR, IS THAT THE INTELLIGENCE COMMUNITY DIDN'T KNOW HOW TO DEAL WITH THIS, NOR DID THE LAW ENFORCEMENT COMMUNITY KNOW HOW TO DEAL WITH THIS. FOR ALQATANI HIMSELF --
00:40:51 Inhofe, James WE'RE DEALING WITH SOMETHING HERE THAT NO ONE HAD DEALT WITH BEFORE. THIS WAS NEW TO US. NOW ON THE RESISTANCE PORTION OF THE SERE PROGRAM, DO OTHER COUNTRIES TRAIN THEIR PEOPLE? WHAT ABOUT ISRAEL, GREAT BRITAIN, AND SOME OF THE OTHERS? DO THEY HAVE A SIMILAR TYPE OF PROGRAM?
00:41:13 Haynes, William SENATOR, I SUSPECT THAT THEY DO BECAUSE THEY'RE SOPHISTICATED -- THEY HAVE SOPHISTICATED MILITARIES. BUT I AM NOT AN EXPERT IN THAT.
00:41:21 Inhofe, James ARE YOU FAMILIAR WITH THE MANCHESTER DOCUMENT FOUND IN MANCHESTER, ENGLAND?
00:41:25 Haynes, William I AM. I'VE SEEN IT. IT'S WIDELY REPORTED AND AVAILABLE. AND IT TALKS ABOUT AMONG OTHER THINGS TRAINING FOR AL QAEDA'S MEMBERS WHO MAY BE CAPTURED, HOW TO RESIST INTERROGATION, AND WHAT THINGS THEY SHOULD CLAIM, SUCH AS TORTURE, WHENEVER THEY'RE CAPTURED CLAIM THEY'RE TORTURED.
00:41:49 Inhofe, James HOW DOES AN INTERROGATOR -- I WONDER HOW AN INTERROGATOR DETERMINES WHETHER OR NOT RESISTANCE TECHNIQUES ARE BEING USED BY A DETAINEE.
00:42:01 Haynes, William I DON'T KNOW.
00:42:02 Inhofe, James OKAY, THAT'S FINE.
00:42:03 Haynes, William I ASSUME THEY DON'T TALK FOR ONE THING.
00:42:08 Inhofe, James OKAY.
00:42:10 Inhofe, James IN A FRONT LINE INTERVIEW WITH MARK JACOBSON, YOU ANSWERED SEVERAL PROBING QUESTIONS THAT -- ABOUT THE FIELD MANUAL 3452 AND THE NEW TECHNIQUES THAT SECRETARY RUMSFELD APPROVED. DID YOU AGREE WITH ALL OF THE NEW TECHNIQUES APPROVED BY SECRETARY RUMSFELD, I THINK IN DECEMBER OF '02?
00:42:31 Haynes, William OH, YES, SIR. THE ONES THAT HE APPROVED IN SEPTEMBER OF '02, I DID AGREE WITH.
00:42:40 Inhofe, James YOU TALK ABOUT TIERS AND PERCENTAGES RELATED TO THE DIFFERENT TECHNIQUES AND DETAINEES THEY WERE USED. CAN YOU EXPLAIN TO THE COMMITTEE WHICH OF THESE TIERS AND WHAT PERCENTAGES OF DETAINEES THEY WERE USED AGAINST THAT RESULTED FROM THE 2002 MEMO?
00:42:59 Haynes, William SENATOR, I'M NOT SURE I KNOW WHAT YOU'RE TALKING --
00:43:02 Inhofe, James OKAY, TALKING ABOUT THE TIERS AND THE PERCENTAGES OF DETAINEES THAT HAD USED THE -- LET ME REPHRASE THAT, WHAT RULES AND REGULATIONS OF GUIDANCE WAS PUT IN PLACE TO THE USE OF THESE TECHNIQUES AT THAT TIME?
00:43:21 Haynes, William WELL, THE -- I BELIEVE BEFORE THE SECRETARY APPROVED THE TECHNIQUES LISTED IN THAT PROPOSAL FROM SOUTHERN COMMAND, I BELIEVE WHAT THE COMMAND WAS USING WAS EXISTING DOCTRINE, WHICH WAS THE OLD ARMY FIELD MANUAL AND THEN WHATEVER THE LAW ENFORCEMENT USED.
00:43:42 Inhofe, James WE HEAR A LOT ABOUT THE CATEGORY THREE TECHNIQUES. ARE YOU -- WERE THESE EVER USED TO GET -- AT GITMO OR DO YOU KNOW?
00:43:54 Haynes, William IF YOU'RE REFERRING TO THE PROPOSAL FROM GUANTANIMO IN THE FALL OF 2002, THERE WERE I BELIEVE FOUR CATEGORY THREE TECHNIQUES, ONLY ONE OF WHICH WAS APPROVED BY THE SECRETARY. AND I'M TOLD THAT WAS NOT USED AT ALL. SO IF THEY DID WHAT THEY WERE AUTHORIZED TO DO, NONE OF THE CATEGORY THREE TECHNIQUES WOULD HAVE BEEN USED.
00:44:17 Inhofe, James MR. HAYNES, LET ME TELL YOU, ONE OF CONCERNS I HAVE AND SEVERAL OF US HAVE ABOUT THE HEARINGS WE'VE HAD ARE HOW THEY CAN BE USED POLITICALLY. I SAW A ONE-HOUR SUPPOSEDLY DOCUMENTARY. I UNDERSTAND THIS DOCUMENTARY'S GOING TO BE SHOWN SOMETIME PRIOR TO THE ELECTION. IT WAS CALLED "TAXI TO THE DARK SIDE." YOU WATCH THIS FOR AN HOUR, GET THE IMPRESSION THAT THE LEADERSHIP OF THE COUNTRY WAS ENCOURAGING TORTURE, THAT OUR TROOPS -- IT'S A REAL SLAM AT THEM, ARE USING IT ON A REGULAR BASIS. I REMEMBER SO VIVIDLY THE LAST SCENE OF THIS MOVIE WAS SOMEONE BEING HUNG UP BY HIS ARMS, THE SHIRT OFF, BEING STABBED WITH ELECTRIC PROBES AND SCREAMING AND ALL OF THAT. THAT WAS JUST A HOLLYWOOD -- JUST LIKE A RAMBO MOVIE. A LOT OF US ARE VERY MUCH CONCERNED THERE IS A LOT OF POLITICAL USE OF THIS THAT I DON'T THINK IS VERY APPROPRIATE. I WOULD LIKE TO HAVE YOU COMMENT ON THE ABUSES AT ABU GHRAIB. WAS THIS SORT OF THING HAPPENING EVERYWHERE SO YOUR KNOWLEDGE? AND IF-IN YOUR FORMER CAPACITY, WERE THE TECHNIQUES THAT WERE USED ABU GHRAIB IN ANY WAY ENCOURAGED, APPROVED, ENDORSED BY SECRETARY RUMSFELD OR ANYONE ELSE IN D.O.D.? TO YOUR KNOWLEDGE?
00:45:46 Haynes, William WELL, THERE ARE A FEW THINGS IN THAT. FIRST OFF, TO MY KNOWLEDGE, NO, THEY WERE NOT ENDORSED OR APPROVED OR EVEN REVIEWED BY ANYONE ABOVE THE CENTRAL COMMAND LEVEL. BUT I THINK IT'S ALSO VERY IMPORTANT TO POINT OUT THAT WHAT MOST PEOPLE THINK ABOUT WHEN THEY THINK ABOUT ABU GHRAIB IS THE ABUSES THAT OCCURRED THAT WERE NOT INTERROGATION AT ALL. AND I SHOULD ADD THAT THESE INCIDENTS HAVE BEEN INVESTIGATED TO A DEGREE PROBABLY GREATER THAN ANY OTHER INCIDENT IN THE DEFENSE DEPARTMENT HISTORY. SO THERE A LOT OF DATA ABOUT WHAT DID HAPPEN AND WHAT DIDN'T HAPPEN. AND I THINK IT'S CONSISTENTLY DETERMINED THAT THE PHOTOGRAPHS THAT WERE SO WIDELY BROADCAST IN 2003 AND EVEN TO THIS DAY REFLECT NOTHING THAT WAS APPROVED INTERROGATION. IT WAS JUST FLAT OUT ABUSE BY PEOPLE WHO WERE NOT BEING SUPERVISED.
00:46:47 Inhofe, James THANK YOU VERY MUCH. AND THAT'S MY FEELINGS EXACTLY. BUT I WOULD ALSO ADD THAT PRIOR TO THE TIME WE HAD OUR VERY FIRST HEARING ON ABU GHRAIB, THE ARMY HAD STARTED CONDUCTING ITS OWN INVESTIGATION, TAKEN SOME STEPS TO DISCIPLINARY ACTION, THAT WAS MY MEMORY.
00:47:06 Haynes, William THANK YOU, SENATOR.
00:47:10 Levin, Carl THANK YOU, SENATOR.
00:47:12 Reed, Jack THANK YOU VERY MUCH, MR. CHAIRMAN. MR. HAYNES, YOU WERE AWARE OF THE MEMORANDUM PREPARED BY THE SERVICE BRANCHS, WHICH EXPRESSED SIGNIFICANT CONCERNS ABOUT MOST, IF NOT ALL OF THESE TECHNIQUES?
00:47:29 Haynes, William WELL, SENATOR, YOU'RE REFERRING TO --
00:47:32 Reed, Jack MEMORANDUMS THAT THE CHAIRMAN OF JOINT CHIEFS OF STAFF.
00:47:36 Haynes, William WELL, LET ME IF I MAY TRY TO GET SOME CLARITY. YOU'RE REFERRING TO A GROUP OF MEMORANDA THAT I DO NOT RECALL SEEING AT THE TIME. I BELIEVE I WAS SHOWN A COUPLE OF THEM WHEN I APPEARED BEFORE YOUR COMMITTEE IN A CLOSE SESSION ABOUT A MONTH AGO AND THAT'S THE FIRST TIME I RECALL SEEING THOSE MEMORANDA. BUT AS I WAS TRYING TO DESCRIBE TO YOU, I DON'T WANT ANYONE TO WALK AWAY FROM MY STATEMENT ABOUT THAT TO SUGGEST THAT I DON'T OR DIDN'T KNOW THERE WERE CONCERNS ABOUT HOW THE DEFENSE DEPARTMENT SHOULD INTERROGATE PRISONERS. THAT'S WHAT I WAS YOU PROBABLY MISSED IT, BUT WE HAD A LONG EXCHANGE ABOUT THIS CHRONIC DEBATE ABOUT HOW TO INTERROGATE.
00:48:29 Reed, Jack WELL, I'M LESS CONCERNED ABOUT THIS CHRONIC DEBATE. BUT THE SENIOR COUNSEL FOR THE JOINT CHIEFS OF STAFF, THE REPRESENTATIVES OF THE SERVICES TO COMMENT ON THIS SPECIFIC REM RAN DUMB THAT COLONEL BEAVER PREPARED, THAT WAS THE SUBSTANCE, THE FOUNDATION OF YOUR RECORD THAT THEY PREPARED WRITTEN STATEMENTS EXPRESSING SIGNIFICANT CONCERNS ABOUT ALL THESE TECHNIQUES. AND THIS IS THE OPINION OF AT LEAST FOUR UNIFORMED OFFICERS AND SOME LAW ENFORCEMENT PERSONNEL WHO SPENT THEIR CAREERS IN THE UNIFORM OF THE UNITED STATES, BOTH AS LAWYERS AND AS MILITARY PERSONNEL. AND YOU WERE AWARE OF THOSE, BUT YOU WEREN'T CURIOUS ENOUGH TO ASK FOR THEM TO READ?
00:49:19 Haynes, William I DON'T KNOW THAT I WAS WORRIED ENOUGH.
00:49:21 Reed, Jack YOU WERE EITHER WORRIED OR YOU WERE NOT.
00:49:24 Haynes, William I DON'T RECALL BEING AWARE OF ANY PARTICULAR MEMORANDA. NOW, LET ME --
00:49:31 Reed, Jack SO YOU'RE TRYING TO MAKE A JUDGMENT ABOUT A VERY SOPHISTICATED JUDGMENT ABOUT THE GENEVA CONVENTION, LAW OF TORTURE, UCMJ, AND YOU'RE AWARE OF A DEBATE GOING ON WITHIN THE SERVICES, WHICH EXPRESSED SIGNIFICANT CONCERNS. BUT YOU HAVE NO -- FORGET LEGAL OBLIGATION, NO INTELLECTUAL CURIOSITY TO ASK WHAT IS THE PROBLEM?
00:49:54 Haynes, William I'VE GOT LOTS OF CURIOSITY, AND I TAKE MY RESPONSIBILITIES AND TOOK MY RESPONSIBILITIES VERY SERIOUSLY. THIS WAS A VERY SERIOUS ISSUE. ABSOLUTELY, THERE WERE A LOT OF FACTORS INVOLVED. VERY IMPORTANT QUESTIONS, INCOLLUDING THE SAFETY OF THE COUNTRY AND THE URGENCY OF THE CIRCUMSTANCES TO TRY TO GET INFORMATION FROM THIS INDIVIDUAL WHO WE KNEW --
00:50:21 Reed, Jack NO, NO.
00:50:24 Haynes, William WHO WE KNEW WAS A HI-JACKER ON THE 20th PLANE. WHO CONTINUED TO CLAIM HE WAS A FALCONTER.
00:50:35 Reed, Jack HIS RESPONSIBILITIES INCLUDED MANY OF THE THINGS YOU REFER TO. THE OVERALL DANGER OF THE COUNTRY, IN FACT, YOU COULD VERY CERTAINLY HAD GIVEN HIM AN OPINION IN YOUR VIEW THAT THERE WERE CERTAIN MATTERS WHICH WOULD NOT BE CONSISTENT. HE COULD HAVE OVERRULED YOU. LET'S JUST STICK TO THAT. AND THE OTHER FACTOR HERE IS WHERE IN YOUR MEMORANDUM IS THERE A REFERENCE TO THIS IS RESTRICTED TO THE THIS CASE ONLY?
00:51:03 Haynes, William WELL, YOU CAN READ MY MEMORANDUM?
00:51:05 Reed, Jack I DID, ASK THERE WAS NO SUCH REFERENCE. CATEGORY ONE AND CATEGORY TWO ARE GIVEN A BLANKET APPROVAL. THE ONLY RESERVATION IN CATEGORY THREE IS NOT THAT IT'S ILLEGAL, YOU CLAIM THEY'RE ALL LEGAL, IT'S A MATTER OF POLICY WE WON'T DO A BLANKET. THERE'S NOTHING HERE REFERENCING. AND YOU'RE CONTINUALLY REFERENCING THAT THE ONLY THING YOU WERE CONCERNED ABOUT WAS QUATANI. BY THE WAY, IF THAT WAS THE CASE, I THINK YOUR MEMORANDUM WOULD SAY IN THE CASE OF -- THIS, THIS, AND THIS.
00:51:42 Haynes, William THAT WAS THE CATALYST AND THE PURPOSE.
00:51:44 Reed, Jack BUT THAT'S NOT THE OPINION --
00:51:47 Haynes, William WELL, SENATOR, WE DON'T DO THESE THINGS IN A VACUUM. AND YOU MISSED MY EXCHANGE.
00:51:53 Reed, Jack EXCUSE ME, MR. HAYNES, I THINK YOU DID IT IN A VACUUM. EWE KNEW THERE WAS A DEBATE GOING ON IN THE MILITARY LEGAL OFFICE, YET YOU DID NOT ASK FOR THEIR WRITTEN MEMORANDUM? IN FACT, UNDER DALTON'S TESTIMONY, YOU COMMUNICATED THROUGH GENERAL MYERS THAT SHE SHOULD CEASE HER FORMAL ANALYSIS IN RESPONSE TO THESE CONCERNS. IS THAT ACCURATE?
00:52:18 Haynes, William WELL, I HAVE THE HIGHEST REGARD FOR ADMIRAL DALTON AND I'M SURE WHATEVER SHE SAID IS ACCURATE TO THE BEST OF HER RECOLLECTION. I DON'T HAVE PERFECT RECOLLECTION OF THAT TIME, BUT I ACCEPT HER WORD.
00:52:31 Haynes, William LET ME FINISH, SENATOR, YOU SAID I ACTED IN A VACUUM, THAT IS NOT TRUE. I LOOKED AT THIS HARD, THERE WAS A -- YOU KNOW THE DEFENSE DEPARTMENT, YOU'RE A WEST POINT GRADUATE, AND I HAVE THE HIGHEST REGARD FOR YOU, BUT YOU KNOW HOW THAT PLACE WORKS. THERE ARE THOUSANDS AND THOUSANDS AND THOUSANDS OF DECISIONS MADE EVERY DAY. THIS WAS ONE. WAS ONENE THAT CAME IHE COCONTEXT I DESCRED A A MOMEN AGO THTH AN EXTRAORDINARY DEGREE OF URGENCY. MY BOS OF THEECECRETARY OF DEFEEE NEEDED A RECOMMENDATION. ITADAD BEEN SITTING IN THE HEADQUARRSRS FOR A MONTH. WHEN HEHE, THE SECRETARY OF DEFENSE SAID I NEED A RECOMMENDATION TO HIS SENIOR, TO HIS SENIOR ADVISORS. ME, THE CHAIRMAN OF THE JOINT CHIEFS, THE UNDER SECRETARY OF POLICIES AND OTHERS WHO MET WITH HIM EVERY DAY. I NEED A RECOMMENDATION. I TOOK IT, I LOOKED AT IT, I LOOKED AT THE PACKAGE, LOOK ADD THE THE CIRCUMSTANCES, I MADE A LEGAL JUDGMENT. I RENDERED MY --
00:53:49 Reed, Jack IT DOESN'T REMIND YOU OF WHETHER OR NOT IF YOU TOLD FORMAL ANALYSIS?
00:53:53 Haynes, William I DON'T REMEMBER THAT SPECIFICALLY, BUT SENATOR, LET ME SAY, IT MAKES SENSE TO ME EVEN IN THIS REMOTE TIME. THERE ARE 10,000 LAWYERS IN THE DEFENSE DEPARTMENT. THERE HAS BEEN A PORTRAYAL OF THIS EVENT IN THE PRESS AND IN TODAY'S HEARINGS BY SOME PEOPLE AS IF THE MILITARY LAWYERS ALL OBJECTED AND THE CIVILIANS OR SOMEBODY JUST IGNORED THEM. THERE WERE MILITARY LAWYERS WHOSE JOB IT WAS TO ADVISE THOSE PEOPLE IN THAT CHAIN OF COMMAND, THE COMMANDER OF GITMO, SOUTHERN COMMAND, THE CHAIRMANS LAWYER AND ME FOR THE SECRETARY OF DEFENSE. THE TESTIMONY EARLIER MENTIONED THE CENTRAL OR THE SOUTHERN COMMAND LAWYER WAS PERHAPS NOT AS INVOLVED AS ME MIGHT HAVE BEEN. BUT THE OTHER THREE PEOPLE IN THE CHAIN OF COMMAND WHOSE JOB IT WAS TO ADVISE THOSE LEADERS LOOKED AT IT CAREFULLY, LOOKED AT IT UNDER THE CIRCUMSTANCES, THERE IS A LAW THAT WAS APPLICABLE AT THE TIME. MY JOB IS NOT JUST TO SAY NO, BUT TO SAY WHERE IS THE AREA OF DISCRETION AVAILABLE TO THE CLIENT? AND IN THIS CASE, THE SECRETARY OF DEFENSE. AND THAT WAS MY DETERMINATION AND I STANDBY IT.
00:55:13 Reed, Jack WHAT DID YOU RELY UPON? WHAT LEGAL ANALYSIS SPECIFICALLY? NOT JUST THINKING --
00:55:19 Haynes, William WELL, I'LL TRY TO GO THROUGH IT RIGHT NOW. THE U.S. CONSTITUTION, WE BELIEVED UNDER THE CASE DID NOT APPLY AT GUANTANIMO. THE PRESIDENT HAD ALREADY DETERMINED THAT THE GEE NEVA CONVENTIONS DID NOT APPLY TO THE AL QAEDA DETAINEES, THE CONVENTION AGAINST TORTURE WOULD APPLY, BUT IT'S NOT A NONSELF-EXECUTING TREATY. THE IMPLEMENTATION OF THAT WAS THE STATUTE PASSED BY THE CONGRESS OF THE UNITED STATES SIGNED BE THE PRESIDENT. SO THE PROHIBITION AGAINST TORTURE IN THAT STATUTE APPLIED. AND THE ARTICLE 16 OF THE CONVENTION AGAINST TORTURE PROHIBITING OR IMPOSING ON THE UNITED STATES AND UNDERTAKING TO PROHIBIT CRUEL AND INTEGRATING TREATMENT WAS APPLICABLE. THE PRESIDENT'S ORDER TO TREAT DETAINEES HUMANELY WAS A RESTRICTION. AND IN THE APPLICATION OF -- AND THE UNIFORM CODE OF MILITARY JUSTICE TO SOME DEGREE WOULD APPLY, AS WELL. AND THE APPLICATION OF THOSE STRICTURES UNDER THE OPERATING PROCEDURES THAT ALL OF THE DECISION MAKERS AND ADVISORS UNDERSTOOD TO BE APPLICABLE LED ME TO BELIEVE THAT THE SECRETARY HAD THE DISCRETION TO AUTHORIZE THE TECHNIQUES THAT WE RECOMMENDED.
00:56:40 Reed, Jack IF THE UNIFORM CODE OF MILITARY JUSTICE APPLIES, DO YOU AGREE WITH COLONEL BEAVER'S ANALYSIS THAT IT WOULD BE A VIOLATION OF ARTICLE 128 TO ENGAGE IN THE POKING AND LIGHT PUSHING?
00:56:54 Haynes, William I DID NOT THINK SO.
00:56:57 Reed, Jack DID YOU MAKE THAT -- ANY CLARIFICATION WHY SHE DIDN'T AGREE?
00:57:01 Haynes, William WELL, I DIDN'T WRITE A MEMORANDUM TO THAT EFFECT?
00:57:05 Reed, Jack DID YOU WRITE ANY?
00:57:06 Haynes, William THAT THAT YOU HAVE IN FRONT OF YOU. AND THAT WAS ACTUALLY MORE EXPANSIVE THAN THE GENERAL COUNSEL THE DEPARTMENT OF DEFENSE USUALLY DOES IN DECISIONMAKING.
00:57:21 Reed, Jack HOW DID YOU COMMUNICATE THIS DECISION TO GUANTANIMO? DID YOU SEND THEM A COPY?
00:57:26 Haynes, William I DID NOT. AND I THINK IT'S IMPORTANT ALSO TO NOTE, SENATOR, I'M SURE YOU'LL APPRECIATE THIS. AS THE LAWYER, I WAS NOT THE DECISION-MAKER, I WAS AN ADVISOR. BASED IN PART OF MY ADD VIGS AS WELL AS THE JOINT CHIEF'S ADVICE. AND THE NORMAL TRANSMITTAL OF A DECISION OF THAT NATURE WOULD BE THROUGH THE JOINT STAFF. AND I WOULD ASSUME THAT'S HOW IT WAS --
00:57:51 Reed, Jack SO ONCE THIS SECRETARY SIGNED OFF AND YOU HAD NO FOLLOW-UP ON THIS AT ALL? YOU DON'T KNOW HOW IT WAS COMMUNICATED?
00:57:59 Haynes, William WELL, I WOULD THINK IT WAS COMMUNICATED IN THE NORMAL FASHION.
00:58:03 Reed, Jack WAS THIS MEMORANDUM SENT DOWN?
00:58:08 Haynes, William SENATOR, I DON'T KNOW --
00:58:12 Reed, Jack ADMIRAL DALTON WENT TO GREAT LENGTHS SO SAY THAT HER RECOMMENDATION WAS BASED ON THE CONDITIONS. CAN YOU POINT TO THE CONDITIONS -- HOW WILL THESE COMMUNICATIONS?
00:58:27 Haynes, William THEY'RE NOT IN MY MEM MOE. BUT AS I TOLD YOU, MOST DECISION DOCUMENTS THAT WOULD GO TO THE SECRETARY OF DEFENSE I WOULDN'T WRITE NOR WOULD MOST OF THE OTHER STAFF PEOPLE WHO WOULD SIGN ON A BLOCK. WOULD NOT WRITE EXTENSIVE.
00:58:45 Reed, Jack IF THOSE CONDITIONS WERE CENTRAL TO THE LEGALITY OF YOUR ADVICE, WOULDN'T YOU HAVE A LEGAL OBLIGATION TO MAKE THE SECRETARY AWARE OF THEM? DID YOU TELL THE SECRETARY HOW DIFFICULT AND CLOSE A CALL THIS WAS? AND HOW THERE WAS SIGNIFICANT ADVERSE CONCLUSIONS BY SUE BOARD SUBORDINATES AND IF YOU FOLLOW ADMIRAL DALTON'S LOGIC, THAT HIS CONCURRENCE WOULD REQUIRE SIGNIFICANT CONDITIONS HE MUST ALSO APPROVE OR AT LEAST BE AWARE OF?
00:59:18 Haynes, William WELL, SENATOR, YOU'RE ASSUMING SOMETHING THAT'S NOT SO. YOU'RE ASSUMING THAT THERE WERE NO UNDERSTOOD CONDITIONS.
00:59:27 Reed, Jack BY WHOM?
00:59:29 Haynes, William BY EVERYBODY INVOLVED IN THE PROCESS, PEOPLE WHO WERE KNOWLEDGEABLE BY THE PROPOSAL AND HOW IT WOULD BE APPLIED, ALL UNDERSTOOD, WHAT WAS MEANT BY THE PROPOSAL. CAPTAIN DALTON TALKED AT LENGTH ABOUT THAT IN THE PANEL. I DON'T KNOW IF YOU WERE HERE TO LISTEN TO IT.
00:59:47 Reed, Jack CAN YOU LIST THE CONDITIONS? COULD YOU LIST THE CONDITIONS THAT AN INTERROGATOR HAD TO FOLLOW?
00:59:53 Haynes, William COULD I LIST THEM?
00:59:54 Reed, Jack YES. THEY WERE CLEAR TO THE INTERROGATORS, CLEAR TO EVERYONE ELSE.
00:59:59 Haynes, William SENATOR, YOU'VE PROBABLY GOT MORE ACCESS TO DOCUMENTS THAN I. IF YOU'D LET ME FINISH, I'D SAY YOU'VE GOT MORE DOCUMENTS THAN I'VE EVER HAD, AND YOU WILL IN THE DOCUMENTS YOU'VE GOT, THE STANDARD OPERATING PROCEDURES, THE PEOPLE ASSIGNED TO MONITOR -- YOU'VE HAD TESTIMONY EARLIER THERE WERE INTERROGATION PLANS THAT WERE SUPPOSED TO BE DESIGNED FOR EACH INDIVIDUAL DETAINEE WHO WAS TO BE INTERROGATED THAT WOULD INVOLVE A PSYCHOLOGICAL REVIEW, HAD TO BE A LEGAL REVIEW, HAD TO BE SUBSTANTIAL COMMAND MONITORING. THERE WAS A STEP PROCESS THEY WERE SUPPOSED TO GO THROUGH. THEY WERE SUPPOSED TO STOP IF ANYTHING CAME UP. THERE WERE ALL SORTS OF
01:00:51 Reed, Jack WHERE IN THIS --
01:00:55 Haynes, William NOT TO MENTION, AS YOU KNOW, THE TRAINING AND THE QUALITY OF THE SOLDIERS THAT I THINK THESE QUESTIONS MALIGN.
01:01:03 Reed, Jack I OBJECT STRENUOUSLY TO THAT. YOU DID US A SERVICE TO THE SOLDIERS OF THIS NATION. YOU EMPOWERED THEM TO VIOLATE CONDITIONS THAT EVER SOLDIER RESPECTS. HERE'S WHAT SOLDIERS DO. YOU SAID THE GENEVA CONVENTION DOESN'T APPLY, AND WHAT DOES APPLY? AND THE ONLY THING YOU SENT THEM WAS THESE TECHNIQUES APPLY. NO CONDITIONS, NOTHING. SO DON'T GO AROUND WITH THIS ATTITUDE OF YOU'RE PROTECTING THE INTEGRITY OF THE MILITARY. YOU DEGRADED THE INTEGRITY OF THE MILITARY.
01:01:37 Haynes, William I OBJECT TO THAT AND DISAGREE WITH THAT, AND I WOULD ALSO POINT OUT THAT THE PRESIDENT OF THE UNITED STATES WITH ADVICE TO THE ENTIRE CABINET MADE THE DETERMINATION ABOUT THE APPLICABILITY OF THE GENEVA CONVENTIONS.
01:01:55 Sessions, Jeff THANK YOU, MR. HAYNES, THANK YOU FOR YOUR SERVICE. YOU'VE SERVED YOUR COUNTRY IN THE UNIFORM. I KNOW YOUR SON IS ROTC NOW AND SEEKING TO BE A MILITARY OFFICER. I KNOW YOU CARE ABOUT GETTING THIS MATTER RIGHT. BUT I WOULD JUST ASK YOU THIS QUESTION BECAUSE DESPITE WHAT THE ACCUSATIONS HAVE BEEN MADE HERE TODAY AND CRITICISMS AND SECOND GUESSINGS, I THINK THE EVIDENCE SHOWS THAT IT WAS INTENTIONALLY LEGALLY STUDIED ALL THROUGHOUT THIS PROCESS. AND I BELIEVE MR. GOLDSMITH WHO THOUGHT THAT PRESIDENT BUSH WAS TOO AGGRESSIVE IN SOME OF THESE MATTERS AND AFTER HE LEFT THE DEPARTMENT OF JUSTICE LEFT A BOOK AND I'LL ASK YOU IF YOU AGREE WITH HIM. MANY PEOPLE BELIEVE THE BUSH ADMINISTRATION HAD BEEN INDIFFERENT TO THESE LEGAL CONSTRAINTS. IN MY EXPERIENCE, THE OPPOSITE IS TRUE, THE ADMINISTRATION HAS PAID CLOSE ATTENTION TO LAW. DO YOU THINK YOU PAID SCRUPULOUS ATTENTION TO LAW AND TRYING TO GET THIS RIGHT?
01:03:06 Haynes, William EVERY TIME I ACTED I UNDERSTOOD THE ENORMOUS RESPONSIBILITIES OF MY JOB AND TRIED TO DO THAT.
01:03:12 Sessions, Jeff AND HE ALSO WROTE QUOTE MANY PEOPLE THINK THE BUSH ADMINISTRATION HAS BEEN INDIFFERENT THROUGH WARTIMES, LEGAL CONSTRAINTS, BUT THE OPPOSITE IS TRUE THAT THE ADMINISTRATION HAS BEEN STRANGLED BY LAW AND SINCE SEPTEMBER 11th, 2001, THIS LAW HAS BEEN LAWYERED TO DEATH, CLOSE QUOTE. IS THERE SOME TRUTH IN THAT?
01:03:35 Haynes, William I THINK SO.
01:03:37 Sessions, Jeff AND WITH REGARD TO THESE TECHNIQUES THAT WERE DISCUSSED AND APPROVED. DID YOU SAY THAT MAJOR GENERAL TWO-STAR GENERAL DONNELLY THAT HEADED THE GUANTANIMO TASK FORCE WAS A JUDGE?
01:03:56 Haynes, William HE'S A JUDGE IN CIVILIAN LIFE.
01:03:59 Sessions, Jeff THIS IS A LAWYER AND A JUDGE. AND HE HAS THE ADVICE OF A JUDGE ADVOCATE GENERAL ATTORNEY ON HIS STAFF. AND THEY CONCLUDED THAT THEY HAD A HIGH VALUED INDIVIDUAL THERE WHO CLAIMED TO BE A FALCONER WHO HAD MET WITH MOHAMMED -- WHO HAD BEEN ARRESTED IN AFGHANISTAN. AND THEY -- THE NORMAL INTERROGATION TECHNIQUES HAD NOT WORKED AND THEY SUBMITTED A REQUEST TO DO ENHANCED TECHNIQUES, IS THAT RIGHT?
01:04:33 Haynes, William YES, SIR.
01:04:35 Sessions, Jeff AND THAT CAME UP THROUGH GENERAL HILL, AND HE'S THE SOUTH COM COMMANDER, A FOUR-STAR GENERAL.
01:04:42 Haynes, William YES, SIR.
01:04:44 Sessions, Jeff AND YOU EVALUATED THE CATEGORIES AND THE REQUESTED TECHNIQUES TECHNIQUES. AND YOU HAD TO MAKE A RECOMMENDATION TO THE SECRETARY OF DEFENSE.
01:04:53 Sessions, Jeff YOU WERE HIS LAWYER. YOU HAD TO RECOMMEND THAT.
01:04:55 Haynes, William YES, SIR.
01:04:57 Sessions, Jeff NOW, YOU HAD OTHER THINGS ON YOUR PLATE AT THIS TIME TOO, DID YOU NOT?
01:05:01 Haynes, William I DID.
01:05:04 Sessions, Jeff BUT YOU EVALUATED, DID YOU? RUBBER STAMP, ASK YOU, OR DID YOU PAIR BACK IN ANY WAY? THE REQUESTS THEY HAD MADE?
01:05:13 Haynes, William I DID NOT RUBBER STAMP, INDEED I RECOMMENDED THAT ONLY A SUBSET OF THE REQUESTED TECHNIQUES BE APPLIED.
01:05:22 Sessions, Jeff YOU SAY A SUBSET, BUT YOU REJECTED THE CATEGORY FOR TECHNIQUES AND THE CATEGORY THREE TECHNIQUES. SO IT ALL -- I THINK ALL OF THEM. IS THAT CORRECT?
01:05:31 Haynes, William THERE WERE THREE CATEGORY THREE TECHNIQUES THAT I DIDN'T RECOMMEND BE USED.
01:05:39 Sessions, Jeff AND THAT WAS YOUR RECOMMENDATION TO THE SECRETARY OF DEFENSE? AND HE APPROVED THAT?
01:05:43 Haynes, William YES, SIR.
01:05:48 Sessions, Jeff NOW, AFTER THAT, IS IT NOT SO THAT OTHER JAG OFFICERS RAISED QUESTIONS ABOUT THIS? AND THE WISDOM OF SOME OF THESE TECHNIQUES IN A WORKING GROUP CAME TOGETHER?
01:05:59 Haynes, William WELL, SIR, THAT REQUIRES SOME EXPLANATION. AS I'VE SAID IN RESPONSE TO SOME OTHER QUESTIONS, THE DIFFICULTY OF THESE ISSUES NEVER ABATED. AND AFTER THE SECRETARY -- IN OTHER WORDS, THERE WAS A DIFFICULT DECISION LEADING UP TO THE ONE THAT THE SECRETARY MADE, AND THEN AFTER -- AFTER THAT DECISION, THAT CONTINUED. INCLUDING IN MY OWN -- THESE ARE NOT EASY QUESTIONS. THIS IS NOT SOMETHING THAT I DID AS YOU SAY AS A RUBBER STAMP OR DID LIGHTLY. I CONTINUE TO STEW ON THAT, FRANKLY. AND I TALK WITH PEOPLE AND I HEARD FROM MR. MORA. MADE SURE THAT I ALERTED THE SECRETARY, HAD DAILY MEETINGS WITH THE SECRETARY AND THE CHAIRMAN AND SO FORTH AND MADE SURE THEY WERE AWARE OF THIS CONTINUING CONCERN. OVER TIME, I WENT BACK FROM TIME TO TIME TO THE SECRETARY AND ULTIMATELY CONVINCED HIM WE NEEDED TO TAKE ANOTHER LOOK AT WHAT HE HAD RECOMMENDED OR WHAT HE HAD APPROVED, PARDON ME. AND CONVINCED HIM THAT HE SHOULD RESEND HIS APPROVAL, WHICH HE DID ON THE 12th OF JANUARY, I RECALL. I BELIEVE IT WAS A SUNDAY BECAUSE I GOT A CALL FROM GENERAL HILL. THAT DECISION WAS MEMORIALIZED ON THE 15th OF JANUARY. IN PREPARING THAT RECESSION RESCISSION DOCUMENT, I RECOMMEND HE INSTRUCT ME TO SET UP A WORKING GROUP TO LOOK AT THIS MORE THOROUGHLY, WHICH I DID. AND I DON'T WANT TO TAKE UP ALL OF YOUR TIME, BUT THE POINT IS THAT THERE WAS A VERY, VERY THOROUGH BROAD-GAUGED MULTI-DISCIPLINED LOOK AT HOW, WE THE DEPARTMENT OF DEFENSE, SHOULD DEAL WITH THIS PROBLEM GOING FORWARD.
01:08:04 Sessions, Jeff YOU THINK YOU WERE WARE OF THE TENSIONS BETWEEN TOO MUCH AGGRESSIVENESS AND THE NEED TO GET INFORMATION AND THE LET GALTY AND THE TREATIES AND THE LAW AND THE POLICIES OF THE UNITED STATES? YOU FEEL LIKE YOU WERE WRESTLING WITH ALL OF THOSE ISSUES AS YOU MADE THESE DECISIONS IN A FAIR AND OBJECTIVE WAY?
01:08:26 Haynes, William WELL, SIR, LET ME POINT OUT AGAIN. THE DECISION TO EMPLOY PARTICULAR TECHNIQUES WAS NOT MINE TO MAKE. BUT IN THE COURSE OF TRYING TO COME UP WITH RECOMMENDATIONS FOR THE SECRETARY, ALL OF THOSE THINGS THAT YOU'VE DESCRIBED WERE IN THE MIX SO TO SPEAK.
01:08:40 Sessions, Jeff YOU CONCLUDED THEY WERE LAWFUL.
01:08:48 Haynes, William WELL, YES, SIR, BUT THE THEY YOU'RE TALKING ABOUT NOW IS A DIFFERENT SET OF INTERROGATION TECHNIQUES THAT THE SECRETARY OF DEFENSE APPROVED IN APRIL OF 2003.
01:08:57 Sessions, Jeff OKAY, WELL, LET'S GET THAT STRAIGHT. SO AFTER THE FIRST APPROVAL OR DISAPPROVAL OF A NUMBER OF THE REQUESTED TECHNIQUES AND YOU APPROVED A CERTAIN NUMBER, YOU CONTINUE TO LOOK AT THAT AND YOU RECOMMENDED TO THE SECRETARY OF DEFENSE THAT SOME OF THOSE NOT BE APPROVED IN THE FUTURE. YOU RESTRICTED FURTHER THE REQUEST OF THE GUANTANIMO TASK FORCE FOR APPROVAL OF TECHNIQUES.
01:09:30 Haynes, William YES, SIR, THAT'S GENERALLY CORRECT. THERE WERE OTHER PEOPLE INVOLVED IN THAT, THAT WAS MY VIEW. NOW, THE PERSON -- TAKE A MOMENT AND EXPLAIN WHAT YOU MEANT WHEN SENATOR REID AND YOU DISCUSSED THE QUESTION OF MEDICAL REVIEW BEING -- THE PEOPLE BEING INTERROGATED, BEING MONITORED FOR MEDICAL REVIEW OR PSYCHOLOGICAL REVIEW, OR THERE BE A COMMAND REVIEW. AND OF THESE CONDITIONS. AND WHAT ROLE OF APPROVAL DID GENERAL HILL, THE FOUR-STAR COMMANDER OF SOUTH COM, WHAT ROLE DID HE PLAY IN HAVING TO APPROVE THE UTILIZATION OF EXTRAORDINARY TECHNIQUES?
01:10:20 Haynes, William WELL, THERE IS A DOCUMENT THAT LAYS THAT OUT. THAT WAS EMBODYIES THE DECISION IN 2003, THAT LAYS OUT THE APPROVAL LEVELS. SOME THINGS COULD BE DELEGATED, SOME DECISIONS ABOUT INTERROGATION APPROACHES COULD BE DELEGATED BELOW GENERAL HILL, BUT SOME DECISIONS NEEDED TO BE APPROVED BY GENERAL HILL IN THAT CASE.
01:10:51 Sessions, Jeff DID THE INTERROGATORS, WHAT DID THEY REQUIRE -- DID THEY HAVE ON THEM WITH REGARD TO OBSERVING THE PHYSICAL CONDITION OF AN INDIVIDUAL BEING INTERROGATED OR -- DO THEY HAVE TO WATCH OUT FOR THEIR HEALTH? WHAT REQUIREMENTS WERE PLACED ON THAT?
01:11:08 Haynes, William WELL, THAT WAS A FUNDAMENTAL REQUIREMENT. THERE WAS AN OBLIGATION TO SAFEGUARD THE PEOPLE WHO HAD BEEN CAPTURED AND TO KEEP THEM HEALTHY AND SAFE AND SECURE. AND SO THERE WAS THE FUNDAMENTAL HUMANE TREATMENT REQUIREMENT THAT THE PRESIDENT HAD DEMANDED OF THE ARMED FORCES FROM THE BEGINNING OF THE WAR. BUT EVEN DURING THE INTERROGATIONS, OF COURSE, THERE WAS PARTICULAR ATTENTION REQUIRED OF THOSE PEOPLE WHO WERE INVOLVED IN THE INTERROGATIONS INCLUDING MEDICAL CARE AND PSYCHOLOGICAL CARE AS WELL AS THE INTERROGATOR AND LEGAL, LEGAL EVERSIGHT.
01:11:46 Sessions, Jeff AND FAILURE TO DO THAT WOULD HAVE BEEN IN VIOLATION OF MILITARY STANDARDS AND OF THE DIRECT ORDER. NOW, JUST TO SORT OF WRAP THAT UP, THERE WAS A MEMO BY THE DEPARTMENT OF JUSTICE, NOT THE DEPARTMENT OF DEFENSE AND THAT MEMO HAS BEEN CRITICIZED AND THAT'S THE ONE THAT WAS WITHDRAWN, IS THAT NOT CORRECT? AS GOING TOO FAR?
01:12:14 Haynes, William I BELIEVE YOU'RE REFERRING TO A MEMORANDUM INTERPRETING THE UNITED STATES CODE PROVISION ON TORTURE, PROHIBITING TORTURE. AND IF I RECALL CORRECTLY, THAT MEMORANDUM, THAT LEGAL OPINION WAS RESCINDED BY THE DEPARTMENT OF JUSTICE IN THE MIDDLE PART OF 2004 AND REPLACED WITH A DIFFERENT OPINION AT THE END OF 2004.
01:12:45 Sessions, Jeff LET ME JUST POINT, CATEGORY TWO TECHNIQUES THAT YOU APPROVED, POSITION, MAXIMUM FOUR HOURS STANDING. FALSIFIED DOCUMENTS, PRESUMING YOU COULD PRESENT FALSIFIED DOCUMENTS TO ENCOURAGE DISCUSSION OR ISOLATION OR UP TO 30 DAYS ONLY. FEDERAL PRISONERS ARE OFTEN KEPT IN ISOLATION LONGER THAN THAT. NON-STANDARD INTERROGATION, 20-HOUR INTERROGATION PERIOD, PERIODS AND SO FORTH. BUT THE TORTURE STATUTE THAT CONGRESS PASSED IN 1994, '92 TO '98. I JUST DON'T THINK THE THINGS MENTIONED IN THERE ARE IN VIOLATION OF THE CONGRESSIONAL DEFINITION OF TORTURE. I THINK THAT'S WHAT THE ATTORNEY GENERAL ASH KROFT SAID AT THE JUDICIARY COMMITTEE, I DIDN'T DEFINE TORTURE, SENATORS YOU DEFINED IT. SO CONGRESS DEFINED TORTURE, DID IT NOT?
01:13:48 Haynes, William YES, SIR, AND THEY USED THE WORDS YOU DESCRIBED.
01:13:53 Sessions, Jeff VERY PHYSICAL PAIN OR SUFFERING.
01:13:56 Sessions, Jeff THANK YOU, MR. CHAIRMAN, I WOULD CONCLUDE AND SAY I'M NOT SURE WE GOT IT RIGHT. I KNOW PRESIDENT BUSH WAS CONCERNED ABOUT AMERICA, I KNOW HE WAS DETERMINED TO GET BETTER INTELLIGENCE AS WE ALL WERE. I'M NOT SURE WE'VE YET FIGURED IT OUT PRECISELY. BUT I OBJECT STRENUOUSLY TO THE SUGGESTION THAT THE DEPARTMENT OF DEFENSE WENT OUT WITH A POLICY OF RECKLESS DISREGARD FOR LAW AND SYSTEMATICALLY ABUSING PRISONERS, AND THOSE IN ABU GHRAIB WHO WERE NOT PART OF AN INTERROGATION, BUT REALLY ABUSED PRISONERS, MANY OF THEM WENT TO JAIL, TRIED AND CONVICTED IN THE MILITARY COURT-MARTIAL. SO I WANT TO EMPHASIZE IT'S NEVER BEEN OUR POLICY TO TORTURE OUR PEOPLE. THE DEFINITION OF WHAT'S PERMISSIBLE, WE CAN ALL AGREE OR DISAGREE. THANK YOU, CHAIRMAN.
01:14:56 Graham, Lindsey AS WE CONCLUDE HERE, AT LEAST MY PART OF IT WILL BE CONCLUDED, I WOULD LIKE TO GO THROUGH SOME SCENARIOS HERE AND MAKE SURE I UNDERSTAND WHAT YOUR TESTIMONY IS. ACCORDING TO THE FBI IN OCTOBER-NOVEMBER TIME FRAME 2002, BEFORE THE RUMSFELD MEMO WAS APPROVED, FBI AGENTS INDICATED THEY WITNESSED INTERROGATION TECHNIQUES AGAINST THE 20th HI-JACKER, THAT INCLUDED MAKING HIM PRAY TO AN IDOL SHRINE, ABUSIVE CONDUCT. INCLUDING HAVING A DOG USED IN INTERROGATION. THAT'S WHAT THE SCHMITT-FURLOW REPORT REVEALED THAT YOUR TESTIMONY THAT SECRETARY RUMSFELD NEITHER SECRETARY RUMSFELD OR YOURSELF NEVER APPROVED ANY SUCH TECHNIQUES FOR THE 20th HI-JACKER.
01:16:00 Haynes, William THAT, I TELL YOU TODAY THAT TO MY KNOWLEDGE THE SECRETARY OF DEFENSE HAD NO KNOWLEDGE OF THAT.
01:16:05 Graham, Lindsey THAT'S ALL I'M ASKING.
01:16:06 Haynes, William NOR DID I.
01:16:08 Graham, Lindsey THAT'S ALL I'M ASKING.
01:16:10 Haynes, William AND I THINK THAT'S WHAT GENERAL SCHMITT CONCLUDED IN HIS REPORT.
01:16:19 Graham, Lindsey NOW, THE -- THE GENERAL COUNSEL FOR THE NAVY CAME WITH YOU WITH CONCERNS BEFORE THE MEMO WAS SIGNED IN DEFENSE DECEMBER OR AFTER?
01:16:30 Haynes, William AFTER.
01:16:31 Graham, Lindsey DID HE THREATEN I WILL DRAFT UP A MEMO AND I WILL GO PUBLIC ABOUT THIS?
01:16:37 Haynes, William WELL, I'VE HEARD -- I THINK I HEARD HIM SAY THAT TODAY. AND I'VE SEEN ACCOUNTS OF THAT. I DON'T REMEMBER THAT EXCHANGE. I REMEMBER HIM COMING IN AT LEAST TWICE. VERY PASSIONATELY AND UNDERSTANDABLY CONCERNED BECAUSE HE HAD BEEN HEARING THINGS. AND IN EACH CASE, MY RECOLLECTION IN EACH CASE -- I LISTENED TO HIM, I REPORTED UP THE WHICH CHAIN, AND I ASKED CAPTAIN DALTON TO LOOK INTO IT TO SEE WHETHER THERE WAS ANYTHING GOING ON.
01:17:13 Graham, Lindsey IT'S YOUR TESTIMONY THAT HIS -- HE'S SAYING TODAY AND OTHER DAYS THAT HE HAD TO THREATEN THE RELEASE OF A OPINION, HIS OPINION ABOUT THESE INTERROGATION TECHNIQUES TO THE PUBLIC AT LARGE AND IT WOULD LOOK BAD FOR THE ADMINISTRATION THAT HE FELT COMPELLED TO GO ON THE RECORD SO TO SPEAK ABOUT THIS. THAT HAD NOTHING TO DO WITH YOU REVISITING THE DECEMBER MEMO?
01:17:43 Haynes, William THERE'S AN ASSUMPTION THAT I'M NOT REJECTING OR ACCEPTING. I DON'T REMEMBER THAT PARTICULAR EDGE TO THE DISCUSSIONS.
01:17:49 Graham, Lindsey FROM DECEMBER TO JANUARY, I BELIEVE IT IS, WHEN WAS THE MEMO
01:17:56 Haynes, William THERE ARE TWO SIGNIFICANT DATES. THE 12th OF JANUARY WHEN THERE
01:18:03 Graham, Lindsey OKAY.
01:18:05 Haynes, William AND THE 15th OF JANUARY WHEN THERE WAS A WRITING.
01:18:08 Graham, Lindsey I GOT YOU FROM DECEMBER THE 2nd I THINK WHEN HE APPROVED THE MEMO UNTIL JANUARY THE 12th. WHAT HAPPENED IN THAT INTERVENING PERIOD TO MAKE YOU RECOMMEND TO HIM WE NEED TO TAKE THIS THING OFF THE TAKE TABLE?
01:18:28 Haynes, William ALL THROUGH THIS PERIOD I HAD MY OWN MISGAVINGS. SO IT'S HARD TO IDENTIFY A SINGLE THING.
01:18:39 Graham, Lindsey BUT YOUR TESTIMONY IS THAT CERTAINLY YOU DON'T RECALL THAT IT WAS THE THREAT THAT MR. MORA MADE ABOUT GOING PUBLIC IF
01:18:48 Haynes, William I DON'T RECALL HIM DOING THAT, I DO RECALL HIM BEING VERY PASSIONATE ABOUT HIS OBJECTION TO WHAT WAS APPROVED. BUT SIR, I WANT TO BE RESPONSIVE. I ALSO HEARD --
01:19:04 Graham, Lindsey THAT'S A PRETTY QUICK TURN AROUND FROM DECEMBER THE 2nd TO JANUARY 12th. SOMETHING HAD TO HAVE HAPPENED THAT WAS FAIRLY EARTH SHATTERING TO CREATE A POLICY AND HAVE IT RESCINDED, YOU KNOW, SIX WEEKS LATER.
01:19:17 Haynes, William NO, SIR. I'VE TRIED TO -- I'VE TRIED TO IMPART THE CHRONIC AND VERY INTENSE PASSION ABOUT HOW ONE GOES ABOUT DOING THIS. AND IT'S ONE OF THE REASONS THAT I FETE VERY FELT VERY STRONGLY THAT THE SECRETARY OUGHT TO GET THIS WORKING GROUP WITH ALL OF THE PLAYERS INVOLVED. THERE WERE SO MANY COMPETING CONCERNS.
01:19:42 Graham, Lindsey THAT'S RIGHT. NOW DID THE WORKING GROUP THAT WAS FORMED EVER REVIEW THE FINAL PRODUCT THAT WAS LATER APPROVED?
01:19:51 Haynes, William WELL, WE'VE HAD -- YOU AND I HAVE HAD A DISCUSSION ABOUT THIS IN ANOTHER CONTEXT WHERE I THINK WE WERE TALKING PAST EACH OTHER. I CAN TELL YOU GREAT DETAIL ABOUT THAT. BUT LET ME TELL YOU WHAT MY RECOLLECTION WAS BRIEFLY. AND THE ANSWER WAS --
01:20:08 Graham, Lindsey WE'RE NOT GOING TO DO IT THAT WAY. I'M TIRED OF DOING IT THAT WAY. HERE'S WHAT WE'RE GOING TO DO. WE'RE GOING TO GET TO THE BOTTOM OF THIS.
01:20:15 Haynes, William OKAY.
01:20:16 Graham, Lindsey THE POINT OF THE MATTER IS THAT OTHER PEOPLE HAVE TESTIFIED THAT THEY WERE ASSEMBLED, GIVEN INPUT, A MEMO WAS ISSUED THEY NEVER SAW AND THEY DIDN'T FIND OUT ABOUT IT UNTIL A YEAR LATER. ARE THEY CORRECT WHEN THEY SAY THAT.
01:20:36 Haynes, William I DON'T HAVE FIRSTHAND KNOWLEDGE ABOUT THAT. MY UNDERSTANDING THEN --
01:20:39 Graham, Lindsey IF THERE'S SO MUCH PASSION ABOUT THIS AND EVERYBODY'S SO UPSET, YOU CAN'T VERIFY THE FACT THAT THE WORKING GROUP GOT TO LOOK AT THE FINAL PRODUCT?
01:20:50 Haynes, William WELL, I THOUGHT THEY DID. I THOUGHT THEY DID.
01:20:53 Graham, Lindsey WELL, THEY SAY THEY DIDN'T.
01:20:55 Haynes, William WELL, AND I WROTE A LETTER --
01:20:56 Graham, Lindsey WHERE DID ALL OF THE PASSION GO?
01:20:59 Haynes, William I DON'T KNOW HOW TO ANSWER THAT.
01:21:01 Graham, Lindsey WHERE DID YOUR PASSION GO?
01:21:04 Haynes, William WELL, MY PASSION WAS TO TRY TO GET THE SECRETARY SOME GOOD COUNSEL. AND WHAT THIS WORKING GROUP DID, WHICH I THINK WAS A GREAT EXERCISE OF GOVERNMENT, FRANKLY.
01:21:17 Graham, Lindsey FROM THEIR POINT OF VIEW WAS THEY WERE ASSEMBLED TO GIVE INPUT AND THEY READ ABOUT IN THE PAPER ABOUT WHAT THE FINAL PRODUCT WAS. THAT'S WHAT THEY'VE TESTIFIED UNDER OATH. THAT THESE GUYS HAD NO CLUE AND GALS HAD NO CLUE OF WHAT THE FINAL PRODUCT WAS. THEY WERE BROUGHT IN TO BE PART OF A WORKING GROUP. AND THEY READ IN THE PAPER A YEAR LATER -- AND THEY LOOKED AT IT AND STILL HAD CONCERNS.
01:21:42 Haynes, William I WASN'T B RUNNING THE WORKING GROUP, BUT I WILL TELL YOU THAT THE ENTIRE LEADERSHIP OF THE DEPARTMENT OF DEFENSE FELT LIKE THE WORK OF THE WORKING GROUP LED TO A VERY GOOD RESULT. AND WHEN I TALK ABOUT -- I'M NOT JUST TALKING ABOUT THE SECRETARY OR THE CHAIRMAN, BUT THE CHIEFS AND THE SERVICE SECRETARIES WHO ADVISED --
01:22:02 Graham, Lindsey ALL DUE RESPECT, I KNOW YOU HAD A DIFFICULT JOB. A LOT OF THIS IS UNCERTAIN. I'M WORRIED ABOUT THE PROCESS. THE PROCESS IS CLEAR THAT THE WORKING GROUP WAS FORMED BECAUSE YOU GOT CRITICISM AND YOU HAD TO DEAL WITH THAT CRITICISM AND YOU DID RESCIND THE MEMO, TO YOUR CREDIT YOU DID THAT. BUT THE WORKING GROUP NEVER REALLY GOT TO SEE THE FINAL PRODUCT. AND I'M NOT SO SURE THAT'S MUCH OF A WORKING GROUP. LET'S GO BACK TO THE DECEMBER 2nd MEMO. ONE OF THE TECHNIQUES THE CATEGORY THREE TECHNIQUES THAT WERE NEVER USED WAS WATERBOARDING, IS THAT CORRECT? WATERBOARDING WAS A CATEGORY THREE TECHNIQUE?
01:22:45 Haynes, William I THINK IT WAS DESCRIBED AS CLOTH WITH WATER DRIPPED ON IT. I'VE NEVER REALLY UNDERSTOOD WHAT THAT TECHNIQUE WAS. BUT IT WAS NOT APPROVED.
01:22:55 Graham, Lindsey DO YOU THINK THAT'S LEGAL? WOULD THAT VIOLATE THE UCMJ? FOR ONE OF OUR -- COUPLE OF OUR MILITARY PERSONNEL, GRAB SOMEBODY, HOLD THEM DOWN, PUT A CLOTHE OVER THEIR FACE AND SIMULATE DROWNING?
01:23:09 Haynes, William AS WE SIT HERE TODAY, ABSOLUTELY YES, IT WOULD BE ILLEGAL.
01:23:15 Graham, Lindsey OKAY.
01:23:17 Haynes, William AT THE TIME, I DON'T KNOW.
01:23:18 Graham, Lindsey OKAY.
01:23:19 Haynes, William BUT THE LAW IS VERY CLEAR NOW.
01:23:22 Graham, Lindsey YOU DON'T THINK IT WAS CLEAR THEN THAT WATERBOARDING A PRISON WAS A VIOLATION OF ARTICLE 128 IN MALTREATMENT OF PRISONER ARTICLE?
01:23:33 Haynes, William I DIDN'T REACH THAT QUESTION.
01:23:34 Graham, Lindsey THANK YOU FOR YOUR SERVICE. I KNOW YOU WERE DEALT A DIFFICULT HAND. AND MR. CHAIRMAN, I APPRECIATE THIS HEARING. AND I GUESS THE THING THAT I'M LEFT WITH IS THAT THERE CERTAINLY WAS AN ATTITUDE THAT WE MAY BE ATTACKED AGAIN AND PEOPLE WERE RIGHTLY CONCERNED AND THE LAW TOOK ON THE VIEW OF BEING AN IMPEDIMENT TO OUR SAFETY NOT OUR STRENGTH. AND I THINK WHAT GOT US TO THIS PROBLEM GOT US IN THIS MESS WAS THAT A LOT OF PEOPLE SAW THE LAWS THAT REGULATED CONDUCT WERE A -- MADE US MORE AT RISK, NOT SAFE. AND I GUESS WE'VE LEARNED. AND WE'VE LEARNED ANYTHING FROM THIS THAT WHEN THE LAW IN THIS OR THE RULE OF LAW IN THIS WAR IS A STRENGTH, NOT A WEAKNESS. AND NOW I THINK WE'VE GOT IT RIGHT AND I APPRECIATE THOSE WHO ARE TRYING TO DO THIS EARLY ON AFTER 9/11. IT IS CLEAR TO ME, MR. CHAIRMAN, THE MEMO WAS NEVER LIMITED TO ONE PERSON. IT IS CLEAR TO ME THAT THESE TECHNIQUES DO ENCOMPASS TECHNIQUES THAT WE WERE DEFENDING AGAINST AND BECAME AN OFFENSIVE WEAPON. IT IS CLEAR TO ME THEY MIGRATED ALL OVER THE MILITARY, AND IT IS CLEAR TO ME THAT WE CREATED CONFUSION FOR THOSE RECEIVER SERVING THIS COUNTRY AND IT WAS ONE OF THE GREAT TRAGEDIES OF AFTER 9/11 THAT WE ALLOWED OUR ENEMY TO TAKE ADVANTAGE OF THIS SITUATION BECAUSE THEY SURELY HAVE. IN AN EFFORT TO MAKE US SAFE AND TO CONQUER OUR ENEMY, I THINK FOR A PERIOD OF TIME, WE COULD NOT HAVE DONE MORE TO HELP THEM BY CREATING THIS CONFUSION AND THIS MESS. IN THAT REGARD, THESE HEARINGS HAVE BEEN HELPFUL.
01:25:28 Levin, Carl THANK YOU, SENATOR GRAHAM. MR. HAYNES, I WANT TO GO BACK NOW TO OCTOBER 2002. THIS IS WHEN THE GUANTANIMO REQUEST WAS FORWARDED BY GENERAL HILL OF THE JOINT CHIEFS. ON OCTOBER 30th, GENERAL MYERS CHAIRMAN OF THE JOINT CHIEFS CIRCULATED THAT QUESTION FROM GITMO TO THE MILITARY SERVICES FOR A COMMENT. I WANT TO GO THROUGH THOSE MILITARY SERVICES. TAB 12, THAT'S NOVEMBER 7th, 2002 MEMORANDUM FROM THE ARMY. PARAGRAPH TWO, THE MEMORANDUM SAYS THE ARMY INNER POSES SIGNIFICANT LEGAL POLICY AND PRACTICAL CONCERNS REGARDING MOST OF CATEGORY TWO AND ALL OF CATEGORY THREE TECHNIQUES. WERE YOU AWARE THAT THE ARMY HAD CONCERNS WITH THOSE TECHNIQUES?
01:26:31 Haynes, William SENATOR, I THINK I TESTIFIED TO THIS. I DON'T RECALL SEEING THIS MEMORANDUM BEFORE, AND I'M NOT EVEN SURE THIS IS ONE I'VE SEEN BEFORE. BUT YOU --
01:26:42 Levin, Carl WERE YOU AWARE AT THE TIME?
01:26:44 Haynes, William I DON'T RECALL SEEING THE MEMORANDUM AND DON'T RECALL SPECIFIC OBJECTIONS OF THIS NATURE.
01:26:49 Levin, Carl THE NEXT PAGE ON THAT TAB 12 IS A MEMO FROM THE CHIEF ARMY OPERATION. IT SAYS STRESS POSITIONS, DEPRIVATION OF LIGHT AND AUDITORY STIMULI, THE USE OF PHOBIAS TO INDUCE STRESS CROSSES THE LINE OF HUMANE TREATMENT AND WOULD LIKELY BE CONSIDERED MALTREATMENT AND MAY VIOLATE THE TORTURE STATUTE. WERE YOU AWARE OF THE ARMY'S OPERATION, THAT THEY HAD CONCERNS WITH THESE TECHNIQUES?
01:27:17 Haynes, William I'M SORRY, I LOST YOU, IS THIS THE THIRD?
01:27:20 Levin, Carl MEMO FROM THE CHIEF OF THE ARMY'S INTERNATIONAL OPERATIONAL DIVISION.
01:27:28 Haynes, William IS THAT THE ONE WITH I.O. AT THE TOP?
01:27:31 Levin, Carl YES, TAB 12.
01:27:33 Haynes, William THE THIRD ONE AT TAB 12. I'M SORRY AND YOUR QUESTION IS WAS I AWARE --
01:27:38 Levin, Carl WERE YOU AWARE?
01:27:39 Haynes, William I DON'T RECALL SEEING THIS MEMORANDUM.
01:27:45 Levin, Carl TAB 11 IS A MEMO FROM THE CHIEF LEGAL AID VISOR. CERTAIN CATEGORY TWO TECHNIQUES QUOTE MAY SUBJECT SERVICE MEMBERS TO PUNITIVE ARTICLES OF THE UCMJ, CLOSE QUOTE, CALLED THE QUOTE UTILITY QUESTIONABLE. THAT'S TAB 11. WERE YOU AWARE THAT THE CRIMINAL INVESTIGATIVE TASK FORCE HAD CONCERNS WITH THOSE TECHNIQUES?
01:28:11 Haynes, William THIS IS AN ASSIGNED THING WITH TAB 11. IS IT A THREE-PAGE DOCUMENT?
01:28:18 Levin, Carl TAB 11.
01:28:20 Haynes, William I'M AT TAB 11, BUT YOU READ A BUNCH OF THINGS I CAN'T FIND, SO. AM I LOOKING AT THE RIGHT DOUM DOCUMENT?
01:28:31 Haynes, William WELL, I DON'T RECALL SEEING THIS DOCUMENT.
01:28:35 Levin, Carl ALL RIGHT, TAB 10, SAYS THE AIR FORCE HAS SERIOUS CONCERNS REGARDING THE LEGALITY OF THE PROPOSED TECH TECHNIQUES, THAT'S IN QUOTE STATING THE TECHNIQUE MAY BE SUBJECT TO CHALLENGES OUTLINED IN THE MILITARY ORDERED TREAT DETAINEES HUMANELY. ARE YOU AWARE THE AIR FORCE HAD THOSE CONCERNS WITH THOSE TECHNIQUES?
01:28:57 Haynes, William I DON'T RECALL SEEING THIS MEMORANDUM EITHER.
01:29:01 Levin, Carl WERE YOU AWARE OF THEIR CONCERNS?
01:29:03 Haynes, William I DON'T RECALL SPECIFIC CONCERNS. I TOLD THE PANEL, SIR, WITH ALL DUE RESPECT, I KNEW THERE WERE CONCERNS. I DON'T RECALL THESE AND I DON'T RECALL SEEING THESE MEMORANDUMS.
01:29:14 Levin, Carl TAB 14 IS THE MARINE CORPS RESPONSE. MIND YOU, THEY'RE RESPONDING NOW TO A REQUEST. THE JOINT CHIEFS OF STAFF TO COMMENT ON A RECOMMENDATION FOR TREATMENT RELATIVE TO TREATMENT OF DETAINEES. EACH ONE OF THE SERVICES NOW RESPONDING. TAB 14'S THE MARINE CORPS. SAYS IN THE THIRD FULL PARAGRAPH, QUOTE SEVERAL OF THE CATEGORY TWO AND THREE TECHNIQUES VIOLATE FEDERAL LAW, WOULD EXPOSE OUR SERVICE MEMBERS TO POSSIBLE CONTRIBUTION. WERE YOU AWARE OF THE MARINE CORPS'S CONCERNS?
01:29:48 Haynes, William I BELIEVE I'VE ANSWERED THAT BEFORE. I DON'T REMEMBER SEEING IT.
01:29:59 Levin, Carl OKAY. DO YOU RECALL ELIANA DAVIDSON WHO WORKED IN YOUR OFFICE SAYING SHE BELIEVED IT REQUIRED FURTHER
01:30:06 Haynes, William I DON'T RECALL.
01:30:07 Levin, Carl DO YOU KNOW WHO SHE IS?
01:30:09 Haynes, William ABSOLUTELY.
01:30:10 Levin, Carl YOU DON'T RECALL HER TELLING YOU THERE WAS FURTHER ASSESSMENT
01:30:14 Haynes, William I DON'T RECALL THAT SPECIFICALLY, BUT THERE WAS A LONG PERIOD OF TIME AND WE DID FURTHER ASSESSING. SO MAYBE SHE SAID THAT AT THE BEGINNING AND MAYBE WE DID IT.
01:30:35 Levin, Carl NOW -- BEFORE THE SECRETARY OF DEFENSE, SIGNED AN ORDER APPROVING THESE ALL THE CATEGORY TWO AND SOME OF CATEGORY THREE TECHNIQUES, THE SERVICE'S LAWYERS LET YOUR OFFICE KNOW THAT THEY HAD SERIES SERIOUS PROBLEMS WITH THAT REQUEST. YOU VAGUELY REMEMBER THERE MAY HAVE BEEN SOMETHING BUT APPARENTLY YOU NEVER TOOK THE TIME TO ASK FOR THOSE DOCUMENTS? AND YET WHEN YOU WERE ASKED DID YOU PAY SCRUPULOUS ATTENTION TO THE LAW, YOU STUDIOUSLY IGNORED THE MEMOS FROM THE LAWYERS OF THE SERVICES THAT CAME TO YOUR OFFICE. YOU STUDIOUSLY IGNORED THEM.
01:31:22 Haynes, William I DISAGREE WITH THAT CHARACTERIZATION.
01:31:25 Levin, Carl AND THEN YOU CUT OFF THE REVIEW, WHICH YOU'D BEEN REQUESTED AND THAT ADMIRAL DALTON WAS CARRYING OUT. NOW, I DON'T KNOW HOW ANYBODY CAN TESTIFY THAT YOU PAID ATTENTION TO THE LAW WHEN YOU IGNORED THE LAWYERS IN THE SERVICES WHO BROUGHT TO YOUR OFFICE THESE CONCERNS. AND THEN WHEN THERE WAS A REVIEW GOING ON BY AN ATTORNEY FOR THE JOINT CHIEFS OF STAFF, YOU SENT THE WORD, WHICH YOU DON'T DOUBT THAT YOU WANTED THAT REVIEW STOPPED. THAT IS NOT STUDIOUS ATTENTION. IT'S QUITE THE OPPOSITE. IT IS CONSIDERATION OF ONE OF THE MOST SIGNIFICANT LEGAL DECISIONS WHICH THIS COUNTRY HAS MADE. AND THAT IS HOW TO TREAT DETAINEES. AND THE ERRORS THAT RESULT IN THOSE OPINIONS HAVE CAUSED THIS COUNTRY TREMENDOUS SECURITY DAMAGE. SO NOW I'M GOING TO ASK YOU THIS QUESTION.
01:32:28 Haynes, William MAY I RESPOND TO YOUR COMMENT?
01:32:31 Levin, Carl I'M GOING TO ASK YOU A QUESTION AND THEN YOU'RE MORE THAN FREE TO DO IT. DO YOU AGREE YOU CUT OFF THE DALTON REVIEW IN THE MIDDLE?
01:32:41 Haynes, William I DON'T REMEMBER DOING THAT.
01:32:44 Levin, Carl HOW OFTEN HAVE YOU EVER CUT OFF REVIEW? HOW MANY TIMES HAS THIS HAPPENED?
01:32:49 Haynes, William WELL, SENATOR, SENATOR WHAT SHE -- WHAT I HEARD HER SAY WAS THAT WE RESTRICTED THE NUMBER OF PEOPLE INVOLVED.
01:32:57 Levin, Carl NO --
01:32:59 Haynes, William THAT'S WHAT I HEARD HER SAY.
01:33:00 Levin, Carl SHE SAID SHE STOPPED THE BROAD REVIEW. THAT'S WHAT SHE SAID. AND IT HAD NEVER HAPPENED BEFORE OR AFTER AS FAR AS SHE KNOWS. THIS IS THE ONE TIME THAT HAD EVER HAPPENED AS FAR AS SHE KNOWS AND THIS IS THE ONE TIME WHERE YOU INTERVENED AND YOU DON'T DOUBT THIS, APPARENTLY. TO STOP THAT REVIEW.
01:33:19 Haynes, William WELL, I DON'T REMEMBER.
01:33:21 Levin, Carl THAT IS NOT PAYING ATTENTION TO THE LAW.
01:33:23 Haynes, William WELL, SENATOR --
01:33:32 Levin, Carl THAT IS MAKE SURE WHAT WE'RE DOING COMPORTS WITH THE LAW.
01:33:37 Haynes, William I DON'T AGREE WITH THAT CHARACTERIZATION. THERE ARE PLENTY OF EXAMPLES OF RESTRICTING PEOPLE WHO HAVE A NEED TO KNOW --
01:33:42 Levin, Carl OF COURSE, THAT'S NOT WHAT SHE WAS TESTIFYING. SHE WAS TESTIFYING TO A REVIEW THAT SHE WAS TAKING PLACE -- A BROAD REVIEW TAKING PLACE FOR THE JOINT CHIEFS OF STAFF AT THEIR REQUEST, SHE SAID SHE HAD NEVER HAD THAT KIND OF A REQUEST STOP IN THE MIDDLE. BEFORE SHE NEVER KNOWS OF IT HAPPENING AFTERWARDS. AND THEN YOU SAY, THEN YOU HAVE TO ME THE AUDACITY TO SAY THAT ALL OF THIS IS CAUSED BECAUSE THERE ARE TWO GROUPS THAT ARE IN CONFLICT. TWO GROUPS IN CONFLICT, ONE ARE THE LAW ENFORCEMENT PEOPLE AND THE OTHER ARE THE PEOPLE WHO WANT INFORMATION FROM INTERROGATION, IGNORING THE THIRD GROUP, WHICH YOU IGNORED IN NOVEMBER. IT'S THE THIRD GROUP YOU IGNORED. AND THAT THIRD GROUP WERE THE LAWYERS FOR THE MILITARY. THE MILITARY SERVICES TO YOUR OFFICE WHILE THIS WAS UNDER REVIEW SENT THOSE MEMOS RAISING ALL KINDS OF RED FLAGS, AND YOU IGNORED THEM? YOU DON'T REMEMBER SEEING THEM? AND THEN, WHEN THAT BROAD REVIEW WAS BEING TAKEN -- TAKING PLACE BY ADMIRAL DALTON, NOW HOW CAN YOU SAY THAT THERE'S ONLY TWO GROUPS HERE THAT ARE INVOLVED? AND THIS IS TENSION BETWEEN TWO GROUPS. ON THE ONE HAND THE LAW ENFORCEMENT FOLKS, ON THE OTHER HAND, THE PEOPLE WHO ARE DOING THE INTERROGATION WHO WANT INFORMATION. WHEN THERE'S THAT THIRD GROUP THAT SENT TO YOUR OFFICE AND WE HAVE TESTIMONY TODAY THAT YOUR OFFICE WAS DEFINITELY SENT THOSE MEMOS AND YOUR STAFF HAD DISCUSSIONS ABOUT THOSE MEMOS BUT THE PEOPLE WHO SENT YOU THOSE MEMOS. HOW DO YOU IGNORE THAT THIRD GROUP OF THOSE SERVICES AND THEIR LAWYERS WHO RAISED THOSE RED FLAGS. WHY AREN'T THEY IN YOUR EQUATION?
01:35:44 Haynes, William LET ME MAKE AT THE OUTSET MY VIGOROUS DISAGREEMENT WITH YOUR CHARACTERIZATION.
01:35:47 Levin, Carl HOW DO YOU IGNORE THE PRESENCE OF THOSE LAWYERS?
01:35:49 Haynes, William JUST SO WE UNDERSTAND,
01:35:50 Levin, Carl I'M SURE.
01:35:53 Haynes, William I DISAGREE.
01:35:54 Levin, Carl NOW MY QUESTION. NOW MY QUESTION.
01:36:00 Haynes, William I DID NOT IGNORE CONCERNS. I ADDRESSED CONCERNS THAT -- OF THE LEGALITY. THERE HAS TO BE A DECISION-MAKER. THAT WAS THE JOB OF THE GENERAL COUNSELOR OF THE DEPARTMENT OF DEFENSE WHEN YOU HAVE MULTIPLE DIFFERENT PERSPECTIVES AND OPINIONS. WHEN YOU HAVE SHORT PERIOD OF TIME, WHEN YOU HAVE A NOVEL SITUATION. I MADE A DECISION, I DID NOT IGNORE ANYTHING, IT WAS MY PRACTICE TO BE AS OPEN AS I POSSIBLY COULD. NOW, THERE ARE PHYSICAL CONSTRAINTS TO THAT. THERE IS OTHER, THERE IS TIME, THERE IS CLASSIFICATION, THERE'S VOLUME, THERE'S CERTAIN AMOUNT OF REDUNDANCY WHEN ONE SEES DIFFERENT PERSPECTIVES REPLAYED FROM TIME TO TIME. I'VE NEVER DENIED THERE WERE DISAGREEMENTS, INCLUDING LEGAL DISAGREEMENTS.
01:37:02 Levin, Carl WHAT YOU HAVE DENIED IS SEEING THEM. ASKING, REMEMBERING THEM --
01:37:07 Haynes, William SENATOR, IF I MAY FINISH.
01:37:08 Levin, Carl YOU MAY FINISH, BUT ANSWER THOSE QUESTIONS.
01:37:11 Haynes, William I TOLD YOU I DON'T REQUIRE SEEING THESE THINGS.
01:37:15 Levin, Carl YOU DID IGNORE THEM.
01:37:18 Haynes, William IF I DIDN'T SEE THEM, I DIDN'T IGNORE THEM.
01:37:21 Levin, Carl YOU KNEW THERE WERE CONCERNS. WHY NOT ASK TO SEE THE MEMOS?
01:37:25 Haynes, William I TOLD YOU I DIDN'T KNOW THEY EXISTED.
01:37:27 Levin, Carl YOU DIDN'T KNOW THOSE MEMOS EXISTED?
01:37:30 Haynes, William SENATOR, I DON'T RECALL SEEING THEM AND I DON'T RECALL KNOWING ABOUT THE MEMORANDA. THIS WAS SIX YEARS AGO. I PROBABLY SAW MILLIONS AND MILLIONS AND MILLIONS OF PAGES OF INFORMATION OVER THE SEVEN YEARS I SERVED IN THAT JOB. AND SO FOR YOU TO SUGGEST THAT BECAUSE I DIDN'T SEE EVERY SINGLE PIECE OF PAPER THAT A LAWYER MIGHT HAVE EXPRESSED A VIEW ON AN ISSUE IS IGNORING IT, I THINK IS AN UNFAIR CHARACTERIZATION.
01:38:02 Levin, Carl I THINK IT'S VERY FAIR, I THINK IT'S RIGHT ON TARGET. YOU INDICATED A FEW MOMENTS AGO YOU HAD MISGIVINGS YOURSELF.
01:38:12 Haynes, William SURE, I STILL DO.
01:38:14 Levin, Carl HAVE YOU EVER EXPRESSED THAT BEFORE TODAY? PUBLICLY?
01:38:17 Haynes, William OH, SURE.
01:38:19 Levin, Carl THAT YOU HAD MISGIVINGS ABOUT THAT OPINION?
01:38:21 Haynes, William WELL, I DON'T KNOW.
01:38:23 Levin, Carl I DON'T EITHER.
01:38:25 Haynes, William BUT I TELL YOU, THIS IS A VERY HARD QUESTION.
01:38:27 Levin, Carl IT IS VERY HARD. IT'S A VERY HARD QUESTION.
01:38:30 Haynes, William BUT IT'S MORE --
01:38:32 Levin, Carl IT HAS A VERY CRITICALLY IMPORTANT ANSWER. AND I JUST WANT TO -- I WANT TO REPEAT, YOU SAID THERE'S TWO GROUPS. AND THEN I'M GOING TO TURN THIS OVER. YOU SAID THERE'S TWO GROUPS OUT THERE THAT CAUSED THIS TENSION. YOU HAVEN'T ANSWERED MY QUESTION ABOUT THAT THIRD GROUP. THE MILITARY SERVICES WHO TOLD YOUR OFFICE AND MEMO AFTER MEMO AFTER MEMO, ALL FOUR SERVICES THEY WANTED MUCH MORE ANALYSIS, THEY HAD GREAT CONCERNS ABOUT THIS, IT MAY OPEN UP THEIR TROOPS AND THEIR MEN AND WOMEN TO LEGAL ACTION INCLUDING CRIMINAL ACTION, THAT CAME TO YOUR OFFICE. CONCERNS OF THE MILITARY SERVICES THAT THEIR PEOPLE MAY BE SUBJECT TO CRIMINAL ACTION AND YOU SAY THAT, GEE, I DON'T REMEMBER IF I SAW THOSE, I DON'T REMEMBER. AND GOSH, THAT'S THE THIRD GROUP. AND YOU HAVE NOT ANSWERED THE QUESTION. IF YOU'RE NOT THAT THIRD GROUP, WHICH YOU SHOULD HAVE CONSULTED AND CONSIDERED.
01:39:30 Haynes, William WELL, CHAIRMAN, I THINK THAT'S ALSO A MISPERCEPTION OF THE REALITY THAT I EXPERIENCED. BECAUSE IF YOU THINK THAT THE TWO EXTRAORDINARILY GIFTED WOMEN LAWYERS THAT WERE UP HERE BEFORE, ADMIRAL DALTON AND COLONEL BEAVER ARE NOT MILITARY LAWYERS WHO EXPRESSED VIEWS.
01:39:50 Levin, Carl I'M NOT TALKING ABOUT THEIR VIEWS HERE NOW, TODAY. I'M SAYING THAT ADMIRAL DALTON WAS IN THE MIDDLE OF A REVIEW THAT YOU SQUELCHED. YOU STOPPED THAT REVIEW IN THE MIDDLE AND SHE FINALLY ACKNOWLEDGED IT WAS STOPPED IN THE MIDDLE. AND IT WAS THE ONLY TIME SHE'S EVER HEARD OF THAT.
01:40:12 Haynes, William WELL, AGAIN, I TOLD YOU WHAT MY VIEWS ARE ON THAT. I THINK THAT THERE WAS SUBSTANTIAL DISCUSSIONS BETWEEN ME AND HER. AND EVIDENTLY WITH OUR STAFFS, AS WELL. AND THERE WAS A LIMITED AMOUNT OF TIME AND A HIGH DEGREE OF URGENCY AND AN UNCERTAIN SET OF RULES BECAUSE OF THE CONFLICT THAT WE'RE IN. ALIEN AND ENEMY COMBATANTS OUTSIDE OF THE UNITED STATES NOT COVERED BY THE GENEVA CONVENTIONS WITH POTENTIALLY NATION THREATENING INFORMATION.
01:40:55 Levin, Carl THANK YOU.
01:40:56 Sessions, Jeff MR. HAYNES, I KNOW THESE HEARINGS ARE DIFFICULT AND SENATORS ARE CARING DEEPLY ABOUT THESE ISSUES. AND I THINK IT'S HEALTHY IN OUR COUNTRY THAT THEY DO. BUT I DO THINK YOU DESERVE A FAIRNESS. I'M LOOKING AT EXHIBIT 11, WHICH WAS THE MEMORANDUM CONCERNING THESE MATTERS. THE CHAIRMAN QUOTED WHERE IT SAID THAT THE PROBLEM AND LIABILITIES MIGHT OCCUR IF ALL OF THESE TECHNIQUES ARE USED. BUT IF YOU GO BACK UP TO THE TOP, FIRST OF ALL, LET ME ASK YOU, WAS THAT DIRECTED TO YOU?
01:41:43 Haynes, William THIS IS EXHIBIT 11, WHICH IS THE THREE-PAGE, UNSIGNED DOCUMENT --
01:41:47 Sessions, Jeff FROM THE AIR FORCE? THE AIR FORCE DOCUMENT?
01:41:54 Haynes, William CRIMINAL INVESTIGATION TASK FORCE.
01:41:57 Sessions, Jeff WELL, MAYBE IT'S TEN. EXCUSE ME, TEN. I'M INCORRECT. SO IT RAISED QUESTIONS ABOUT THESE TECHNIQUES, BUT ALL RIGHT, WAS IT DIRECTED TO YOU?
01:42:12 Haynes, William NO, SIR, THIS IS DIRECTED TO THE U.N. IN MULTI-LATERAL AFFAIRS DIVISION J-5 OF THE JOINT STAFF.
01:42:21 Sessions, Jeff THAT'S NOT YOU? ONE DIRECTED TO YOU, IS THAT
01:42:23 Haynes, William YES, YOU'RE RIGHT.
01:42:24 Sessions, Jeff AND LOOK AT THE FIRST PARAGRAPH. GENERAL COMMENT, THE AIR FORCE HAS SIMILAR CONCERNS INVOLVING THE LEGALITY OF MANY OF THE PROPOSED TECHNIQUES, PARTICULARLY OF THOSE ON THE CATEGORY THREE, SOME OF THESE TECHNIQUES COULD BE CONSTRUED AS TORTURE AS THAT CRIME IS DEFINED BY 18 USC 2040. ONE OF THE PROPOSED TECHNIQUES IS THE USE OF SCENARIO DESIGNED TO CONVINCE A DETAINEE THAT DEATH MAY OR SEVERELY PAINFUL CONSEQUENCES ARE IMMINENT FOR HIM AND HIS FAMILY. DID YOU APPROVE THAT TECHNIQUE WHEN YOU RECOMMENDED TO THE ATTORNEY GENERAL YOUR RECOMMENDATION AS TO WHAT WITHIN THE REQUEST SHOULD BE APPROVED? OR DID YOU DISAPPROVE THAT?
01:43:14 Haynes, William I DID NOT RECOMMEND THAT. I'M GLAD YOU POINTED THAT OUT, SENATOR. HAVING NOT SEEN THESE BEFORE AND NOT BEING ABLE TO READ IT WHILE I WAS BEING ASKED QUESTIONS, I DIDN'T SEE THAT THE CONCERN HIGHLIGHTED HERE IS THAT WHICH WAS NOT RECOMMENDED NOR APPROVED.
01:43:33 Sessions, Jeff AND, IN FACT, THIS MEMORANDUM WAS DIRECTED TO THE REQUEST FROM GENERAL HILL'S OFFICE ORIGINATE ORIGINATING FROM GUANTANIMO, NOT YOUR MEMORANDUM, ISN'T THAT CORRECT?
01:43:48 Haynes, William YES, SIR, THAT'S CORRECT.
01:43:50 Sessions, Jeff IT WASN'T YOUR DECISION THAT THEY'RE COMPLAINING ABOUT HERE, BUT THE REQUEST FROM GUANTANIMO, WHICH YOU DIDN'T APPROVE. NOW, LOOK AT THE NEXT ONE YOU WERE ASKED ABOUT. ON EXHIBIT 13. IT ORIGINALLY STARTS OUT LEGAL COUNSEL CHAIRMAN TO JOINT CHIEFS OF STAFF. THAT'S NOT YOU EITHER, IS IT?
01:44:19 Haynes, William AGAIN, I THINK WE'RE LOOKING AT SOMETHING DIFFERENT.
01:44:21 Sessions, Jeff WELL, MAYBE IT'S 12. 12.
01:44:25 Haynes, William OKAY.
01:44:27 Sessions, Jeff YOU SEE THAT? SO THIS MEMORANDUM THAT THE CHAIRMAN ASKED YOU ABOUT THAT HE SAID YOU WERE SUPPOSED TO KNOW ABOUT, IT WASN'T DIRECTED TO YOU EITHER, WAS IT?
01:44:39 Haynes, William NO, SIR, IT'S ADDRESSED TO THE J-5 UMMA COMMANDER.
01:44:47 Sessions, Jeff IS IT NOT IN PARAGRAPH ONE STATES THAT QUOTE THE ARMY HAS REVIEWED THE REQUEST OF THE SOUTHERN COMMAND, GENERAL HILL, FOUR-STAR GENERAL, FOR FURTHER LEGAL REVIEW BY THE DEPARTMENT OF DEFENSE AND DEPARTMENT OF JUSTICE OF THE PROPOSAL TO DEPLOY COUNTERRESISTANT TECHNIQUES. SO THAT, AGAIN, WAS A REFERENCE TO THE REQUEST THAT WAS SENT TO YOU AND EXPRESSION OF CONCERN. IT WAS NOT DIRECTED TO YOU. SO YOU SHOULD NOT HAVE -- WE SHOULDN'T PRESUME THAT YOU SAW IT. AND NUMBER TWO, IT DIDN'T REFER TO YOUR DECISION, WHICH REJECTED MANY OF THE REQUESTS THAT CAME FROM GUANTANIMO. IS THAT RIGHT?
01:45:38 Haynes, William THAT'S RIGHT, SENATOR.
01:45:42 Sessions, Jeff AND LOOKING AT, I GUESS NUMBER 12, OR WITHIN THAT TWO PAGES FURTHER ON IS THE MEMORANDUM FOR THE OFFICE OF THE ARMY GENERAL COUNSEL. YOU'RE NOT THE ARMY GENERAL COUNSEL ARE YOU?
01:46:01 Haynes, William I WAS NOT AT THE TIME.
01:46:02 Sessions, Jeff ARE YOU A COUNSEL FOR THE DEPARTMENT OF DEFENSE? AND IT SAYS THIS MEMORANDUM SAYS FROM JOHN LEI, WHOEVER THAT IS I HAVE REVIEWED THE PROPOSED REQUEST, THAT'S GENERAL HILL'S REQUEST FOR APPROVAL OF COUNTER-RESISTANT STRATEGIES, I CONCUR AND PROPOSE CATEGORY ONE TECHNIQUES BUT HAVE SIGNIFICANT CONCERNS LEGAL POLICY AND PRACTICAL REGARDING MOST OF CATEGORY TWO AND ALL OF CATEGORY THREE TECHNIQUES. IS THAT CORRECT?
01:46:48 Sessions, Jeff THAT'S WHAT IT SAYS. THAT WAS NOT SENT TO YOU.
01:46:51 Haynes, William YES, SIR.
01:47:01 Sessions, Jeff WITH REGARD TO EXHIBIT 14 -- THIS WOULD BE A MEMORANDUM -- I THINK YOU ASKED ABOUT THIS ONE -- IT WAS A MEMORANDUM FOR THE DIRECTOR OF J-5, THE JOINT STAFF. WOULD THAT BE A MEMORANDUM DIRECTED TO YOU OR SOMEBODY ELSE IN THE DEPARTMENT OF DEFENSE?
01:47:25 Haynes, William IT WOULD BE TO SOMEBODY ELSE.
01:47:27 Sessions, Jeff SO IF THE ROUTING HAD BEEN APPROPRIATE, IT WOULD NOT HAVE COME TO YOU, IS THAT RIGHT?
01:47:33 Haynes, William IT MIGHT HAVE GOTTEN TO MY OFFICE EVENTUALLY, I DON'T RECALL SEEING IT.
01:47:37 Sessions, Jeff IT WASN'T DIRECTED TO YOU?
01:47:40 Haynes, William CORRECT.
01:47:48 Sessions, Jeff AND IT WHO IS THAT FROM? IS THAT AN ARMY?
01:47:51 Haynes, William THE ONE I'M LOOKING AT IS CAPTAIN --
01:47:55 Haynes, William CAPTAIN U.S. NAVY IS WHAT I'M LOOKING AT.
01:47:56 Sessions, Jeff NO, WE'RE STILL ON THE WRONG PAGE. CAN'T GET ON THE SAME PAGE AND NEITHER CAN YOU AND I.
01:48:02 Haynes, William 13.
01:48:03 Sessions, Jeff I'M LOOKING AT, I GUESS, 14.
01:48:12 Haynes, William THIS IS THE ONE THAT'S VERY BLURRY.
01:48:14 Sessions, Jeff IT'S BLURRY.
01:48:16 Haynes, William IT SAYS U.S. MARINE CORPS RESERVE AT THE BOTTOM.
01:48:19 Sessions, Jeff YEAH. AND IT SAYS MEMORANDUM FOR THE DIRECTOR, J-5, THE JOINT STAFF,
01:48:26 Haynes, William YES, SIR. THAT'S RIGHT.
01:48:34 Sessions, Jeff AND THE FIRST PARAGRAPH SAYS WE CONCUR WITH THE GENERAL PROPOSITION OF ROBUST INTERROGATION PLANS AND GOES ON TO SAY WE'RE CONCERNED WITH THE MEASURES OF THE PROPOSED DOCUMENT, ESPECIALLY CATEGORY THREE, WHICH YOU REJECTED ALL BUT ONE OF THOSE TECHNIQUES. SO THEY WERE, AGAIN, REFERRING TO THE PROPOSAL FROM GUANTANAMO, NOT FROM YOU -- FROM YOUR RECOMMENDATION TO THE SECRETARY THAT HE PUT IN THE POLICY DOCUMENT?
01:49:04 Sessions, Jeff YES, SIR, THAT'S RIGHT. ONE QUESTION ABOUT THIS ISSUE. I'LL ASK YOU DIRECTLY. WHEN YOU VIZ SIED GUANTANAMO, DID YOU OR ANY OF THE LAWYERS SUGGEST TO MAJOR GENERAL DUNLEAVY HE REQUEST HARSH TECHNIQUES BASED ON THE SEER PROGRAM WHEN YOU TALKED TO HIM?
01:49:34 Haynes, William I DON'T RECALL DOING ANYTHING LIKE THAT. I CAN'T IMAGINE I WOULD HAVE. THE PURPOSE OF THAT VISIT, AS I RECALL, WAS TO VISIT THREE DIFFERENT DETENTION FACILITIES IN A SINGLE DAY.
01:49:51 Sessions, Jeff I WOULD SAY, A DIFFICULT, DIFFICULT THING. YOU WERE UNDER GREAT PRESSURE. THE AMERICAN PEOPLE -- WE HAD GREAT CRITICISM, GOOD INTELLIGENCE. PEOPLE WERE AFRAID THIS COUNTRY WOULD BE ATTACKED AGAIN. THEY FELT THIS 20th HIJACKER HAD INFORMATION THAT COULD PERHAPS PREVENT ANOTHER ATTACK. I HOPE THAT AND BELIEVE THAT YOU TRIED YOUR BEST TO STRIKE THE RIGHT BALANCE. SOME CAN QUESTION THAT. IN THE FUTURE, MAYBE WE'LL SEE IT IN A DIFFERENT WAY. AT THIS POINT, I BELIEVE YOU DID YOUR BEST TO SERVE YOUR COUNTRY.
01:50:28 Levin, Carl THANK YOU, SENATOR SESSIONINGS. THIS MATTER HAS BEEN INVESTIGATED OVER AND OVER AGAIN, AT LEAST HOW IT RELATES TO HOW THE TECHNIQUES GOT TO AFGHANISTAN AND IRAQ. THE FOCUS OF OUR INVESTIGATION, OF COURSE, IS NOT THAT. IT'S WHERE IT ALL BEGAN. NOT WHERE THEY ENDED UP. BUT IN TERMS OF THE INVESTIGATIONS, FOR THE RECORD, GENERAL FAY STATED IN HIS REPORT THAT A JANUARY 24, '03 MEMO, CALLED INTERROGATION TECHNIQUES MEMO, NINE DAYS AFTER THE RESCISSION -- BY SECRETARY RUMSFELD, THAT MEMO ACCORDING TO AN UNCLASSIFIED STATEMENT RECOMMENDED REMOVAL OF CLOTHING, A TECHNIQUE THAT HAD BEEN IN THE SECRETARY -- THE SECRETARY'S DECEMBER 2 OBSERVATION IN GENERAL FAYE'S WORDS AND TO DISCUSS, QUOTE, EXPLOITING THE FEAR OF DOGS, CLOSE QUOTE. ANOTHER TECHNIQUE THAT WAS APPROVED BY THE SECRETARY AND THE SECOND I POINT OUT. NOW, FROM AFGHANISTAN, HOW DO THEY GET TO IRAQ? THIS IS ANOTHER REPORT AND STATED THAT THIS TRAIL OF THESE TECHNIQUES FROM GUANTANAMO TO AFGHANISTAN AND IRAQ HAVE BEEN INVESTIGATED. THEY HAVE BEEN. HERE'S WHAT THE DEPARTMENT OF DEFENSE MEMO SAID THAT AT THE BEGINNING OF THE IRAQ WAR, THEY USED A STANDARD '0 3 PROCEDURE DROPPED FOR AFGHANISTAN. HERE'S WHAT THE DEPARTMENT OF DEFENSE SAID ABOUT THE AFGHANISTAN STANDARD OPERATING PROCEDURE. THAT THAT HAD BEEN, QUOTE, INFLUENCED BY THE COUNTERRESISTANCE MEMORANDUM THAT THE SECRETARY OF DEFENSE APPROVED ON DECEMBER 2, 2002 AND INCORPORATED TECHNIQUES DESIGNED FOR DETAINEES IDENTIFIED AS UNLAWFUL COMBATANTS, STANDARD PROCEDURES INCLUDING TECHNIQUES SUCH AS YELLING, LOUD MUSIC, ENVIRONMENTAL MANIPULATION. 20-HOUR INTERROGATIONS, AND CONTROLLED FEAR. MUZZLED DOGS. AND IN GENERAL, FAYE AGAIN IN HIS REPORT SAID THAT THE REMOVAL OF CLOTHING WAS IMPORTED TO GRAB GRAB AND COULD BE TRACED THROUGH AFGHANISTAN AND GITMO AND IN ABU GHRAIB THAT WAS DEPRAVITY AND DEGRADATION RATHER THAN HUMANE TREATMENT TO DETAINEES, CLOSE QUOTE. AGAIN, I MENTION IN MY OPENING REMARKS THAT I ASKED GENERAL FAYE IN THE HEARING WHETHER A POLICY APPROVED BY THE SECRETARY OF DEFENSE ON DECEMBER 2, 2002 CONTRIBUTED TO THE USE OF AGGRESSIVE INTERROGATION TECHNIQUES AT ABU GHRAIB, HE RESPONDED SIMPLY YES. THERE'S BEEN A NUMBER OF INVESTIGATION OF EVENTS IN 2003 AND 2004, BUT WHAT THIS FOCUSES ON TODAY, NUMBER ONE, THAT SHOWS THE CONNECTIONS OF THOSE INVESTIGATIONS BETWEEN WHAT HAPPENED AT GUANTANAMO, BETWEEN THE DECEMBER 2, 2002 DECISION OF THE SECRETARY OF DEFENSE AND WHAT HAPPENED A YEAR LATER IN AFGHANISTAN AND IRAQ. NOW, MY QUESTION -- A COUPLE MORE QUESTIONS AND I'LL THE BUN. DID YOU DISCUSS THE SERE TECHNIQUES WITH MAJOR DUNLEAVY?
01:54:31 Haynes, William I DON'T RECALL, I MAY HAVE, I DON'T RECALL.
01:54:32 Levin, Carl OKAY. NOW, THERE'S A MEMO FROM MR. BYBY FROM THE OFFICE OF LEGAL COUNSEL STATING AUGUST 1, 2002 THAT PROVIDED GUIDANCE ON INTERROGATIONINGS PRIOR TO OUR RECOMMENDATION TO THE SECRETARY, THAT WAS THE OFFICE OF LEGAL COUNSEL MEMO. DID YOU READ IT?
01:54:59 Haynes, William I HAVE READ IT.
01:55:01 Levin, Carl AT THE TIME. DID YOU READ IT AT THE TIME YOU MADE YOUR MEK MEN DAGS?
01:55:07 Haynes, William I DON'T KNOW WHEN I READ THAT.
01:55:10 Levin, Carl DID YOU RELY ON THAT MEMO IN YOUR RECOMMENDATION TO THE SECRETARY.
01:55:13 Haynes, William SINCE I DON'T REMEMBER WHEN I READ THAT. I TOLD YOU WHAT I RELIED ON.
01:55:17 Levin, Carl WAS THAT INCLUDE IN WHAT YOU
01:55:18 Haynes, William I DON'T THINK SO. I THINK WHAT I TOLD YOU IS WHERE I -- THE THOUGHT PROCESS THAT I REMEMBER EMPLOYING IN DETERMINING THAT THE REQUEST THAT I -- THE SUB SETH OF THE REQUEST THAT I RECOMMENDED BE APPROVED WAS LEGAL.
01:55:38 Levin, Carl DID YOU TELL OUR STAFF IT'S LIKELY THAT YOU DID READ IT BEFORE NOVEMBER 27?
01:55:44 Haynes, William I MAY HAVE. I JUST DON'T REMEMBER WHEN I FIRST READ IT.
01:55:48 Levin, Carl THIS IS AN OFFICE OF LEGAL COUNSEL MEMO, LEGAL MEMO BINDING ON THE ENTIRE GOVERNMENT.
01:55:59 Haynes, William WOULD BE AAUTHORITATIVE --
01:56:01 Levin, Carl FOR YOU, AS GENENALOUNSEL AT THEHED.O.D.?
01:56:04 Haynes, William SURE Y, SIR. IFIF IT EXPRESESSE ANPIPION ON E L LAW FOR THEXEXECUTIVE BRANCH, TT WOUOULD B AAUTHORITATIVE IN THE EXECUTIVE BRANCH.
01:56:19 Levin, Carl SO WHY WOULD Y HAVE NOT READ THAT BEFORE RECOMMENDING A DECISION TO THE SECRETARY OF DEFENSE?
01:56:25 Haynes, William WELL, FOR ONE THING, THAT IS ADDRESSED TO SOMEONE ELSE.
01:56:28 Levin, Carl SO YOU MAY NOT HAVE KNOWN ABOUT IT?
01:56:30 Haynes, William I DON'T REMEMBER, SENATOR, WHEN I READ IT. I JUST DON'T REMEMBER. I MAY HAVE, I JUST DON'T REMEMBER. IT'S SIX YEARS AGO. THERE WERE A LOT OF THINGS GOING ON, CHAIRMAN.
01:56:49 Levin, Carl IF YOU MAY NOT HAVE READ IT, WERE YOU AWARE OF THE CONTENTS OF IT WHEN YOU MADE A RECOMMENDATION TO SIGN THE DECEMBER 2, 2002 ORDER?
01:56:58 Haynes, William CHAIRMAN, I TOLD YOU, I JUST DON'T REMEMBER.
01:57:13 Levin, Carl ALL SET?
01:57:17 Sessions, Jeff ATTORNEY GENERAL MUKASEY AND HIS CONFIRMATION ABOUT THE ABIDING MEMO WHICH APPARENTLY ATTEMPTED TO SET FORTH THE FULL POWER OF THE EXECUTIVE BRANCH DURING THE TIME OF WAR IN DEALING WITH PRISONERS AND AS HE SAID, NOT ONLY WAS IT A MISTAKE, IT WAS WORSE BECAUSE IT WAS UNNECESSARY. IT'S UNWISE FOR US TO TRY TO ANTICIPATE AND SET THE MEMO TO ANTICIPATE ALL KINDS OF POSSIBLE SCENARIOS AND THEN TO APPROVE OR DISAPPROVE THEM. YOU'RE MUCH BETTER OFF GOING CASE-BY-CASE CAREFULLY CONSIDERING ALL OF THE CIRCUMSTANCES IN THE FACT-BASED CIRCUMSTANCE AND WHILE I THINK IT DID SET IT FOR THAT TIME AS LONG AS IT STAYED IN EFFECT, SOME CONSTITUTIONAL LIMITS, I HAVE DOUBTS ABOUT ITS WISDOM AND I GUESS IT'S FAIR TO SAY THAT THE DEPARTMENT OF DEFENSE, AS A MATTER OF POLICY, DID NOT FEEL WITH REGARD TO THESE INTERROGATIONS THAT IT WAS APPROPRIATE TO USE EVERY PIECE OF POWER YOU MAY HAVE. EVERYTHING YOU HAD WERE POLICY DECISIONS AS WELL AS LEGAL DECISIONS, WERE THEY NOT?
01:58:41 Haynes, William YES, BUT LET ME REMIND EVERYBODY THAT THE LAWYERS DON'T DECIDE WHAT GETS USED. WE GIVE AT VICE. THAT'S WHAT WE DID.
01:58:48 Sessions, Jeff YOUR ADVICE WAS WHAT?
01:58:53 Haynes, William MY ADVICE WAS -- WELL, DEPENDS ON WHAT THE QUESTION WAS. BUT IN THE CASE OF -- OF THE -- I GUESS IT WAS THE DECEMBER 2 DECISION BY THE SECRETARY BASED ON MY RECOMMENDATION THAT WAS -- THAT WAS SHARED WITH THE CHAIRMAN OF THE JOINT CHIEFS, THE DEPUTY OF SECRETARY OF DEFENSE AND THE UNDERSECRETARY OF POLICY WAS THAT ONLY A SUB SETH OF THOSE TECHNIQUES REQUESTED BY GUANTANAMO BE APPROVED AND IMPLICITLY AND I'M SURE I SAID SO, EXPLICITLY, THAT THOSE THAT WE RECOMMENDED, THAT I RECOMMENDED WERE LEGAL. AS DID COLONEL BEAVER AND AS DID ADMIRAL DALTON, THAT THEY WERE LEGAL. NOW THE NEXT GO AROUND WHICH WAS A RESULT NOT ONLY OF THE WORKING GROUP, THIS IS WHERE I JUST WISH THAT EXERCISE HAD A -- HAD A BETTER APPRECIATION BY CHAIRMAN LEVIN AND SOME OTHERS BECAUSE IT WAS VERY VALUABLE TO THE LEADERSHIP OF THE DEPARTMENT OF DEFENSE -- THAT SECOND ROUND THAT RESULTED IN SECRETARY RUMSFELD'S DECISION IN APRIL OF 2003 ABOUT WHAT TECHNIQUES SHOULD EMPLOY -- SHOULD BE EMPLOYED IS ALSO --
02:00:13 Sessions, Jeff WHERE HE RESTRICTED SOME HE PREVIOUSLY APPROVED.
02:00:17 Haynes, William HE RESTRICTED OR OUTRIGHT DID NOT AUTHORIZE THEM AT ALL, A DIFFERENT SET OF, I BELIEVE, 24 TECHNIQUES WITH EXTRAORDINARY SAFEGUARDS AND APPROVAL LEVELS. FAR SHORT OF WHAT THE JUSTICE DEPARTMENT ADVISED THE LAW WOULD ALLOW.
02:00:37 Sessions, Jeff THANK YOU, MR. CHAIRMAN.
02:00:38 Levin, Carl TO GO BEYOND THAT WOULD REQUIRE APPROVAL OF THE
02:00:41 Haynes, William YES, SIR.
02:00:45 Haynes, William THAT'S MY RECOLLECTION OF WHAT THE DOCUMENTS SAY ABOUT IT. THAT'S WHAT IT SAYS.
02:00:52 Sessions, Jeff ONE MORE QUESTION. WITH REGARD TO SECRETARY RUMSFELD ON EITHER OF THOSECATIONS THAT HE IMPOSE A PERSONAL ACTION TO APPROVE A TECHNIQUE THAT YOU DIDN'T RECOMMEND TO YOUR RECOLLECTION?
02:01:16 Haynes, William I'M NOT SURE I CAN TELL YOU ABOUT THAT KIND OF THING. BUT I THINK I'M RESTRICT IN WHAT DELIBERATIVE AND ATTORNEY-CLIENT COMMUNICATIONS I'VE HAD. I PROBABLY SHOULD NOT ANSWER THAT QUESTION. BUT THERE'S NOT A SINISTER ANSWER.
02:01:38 Levin, Carl WHICH MEANS WE THANK YOU WHAT TODAY'S HEARING IS FOCUSED ON IS SERE TECHNIQUES WHICH WERE INCORPORATED IN TO INTERROGATION DOCUMENTS WHICH WERE NEVER INTENDED TO BE INCORPORATED INTO INTERROGATION RULES. NO PROCEDURES WERE PROPERLY DESIGNED TO HELP OUR MEN AND WOMEN SURVIVE SHOULD THEY BE EXPOSED TO THE ACTS THAT VIOLATED GENEVA OF OUR ENEMIES. THEY WERE NEVER INTENDED TO BE TAUGHT TO INTERROGATORS, USED BY INTERROGATORS AGAINST OUR ENEMIES. THAT TESTIMONY WAS VERY, VERY CLEAR IN THE PANELS THAT WE HAD TODAY. AND, YET, WE FOUND THOSE TECHNIQUES, INCLUDING STRIPPING DETAINEES, INCLUDING THE USE OF DOGS TO INDUCE STRESS. WE FOUND THOSE TECHNIQUES NOT ONLY WERE THEY ADOPTED AT GUANTANAMO AND USED IN SPECIAL INSTANCES, BUT THEN THEY MOVED OVER TO AFGHANISTAN AND IRAQ IN WAYS THAT THE VARIOUS INVESTIGATIONS HAVE DISCLOSED. WE PAID A HUGE PRICE AS A COUNTRY FOR WHAT WAS UNLEASHED FOR THE DECEMBER 2, 2002 ORDER OF THE SECRETARY OF DEFENSE WAS SIGNED. WHEN IT WAS RESENDED SIX WEEKS LATER, THEN A DIFFERENT DOCUMENT WAS PUT IN THE PLACE A COUPLE OF MONTHS AFTER THAT. BY THEN, WHAT HAD SPREAD TO AFGHANISTAN AND IRAQ WAS WHAT WE, I'M AFRAID, SAW IN THE TRANLIC PICTURES AT ABU GHRAIB. BECAUSE WHILE THEY WERE NOT INTERROGATORS, THEY WERE PHOTOGRAPHED, THEY WERE THE GUARDS. AND THOSE GUARDS, ACCORDING TO OUR OWN -- THE INVESTIGATIONS THAT HAVE BEEN SHARED WITH THIS COUNTRY WERE INFLUENCED BY THE TECHNIQUES, THE INTERROGATION TECHNIQUES WHICH HAD BEEN SHIPPED OVER TO AFGHANISTAN AND IRAQ. WE PAID A LARGE PRICE FOR WHAT HAPPENED. WE'LL CONTINUE THIS INVESTIGATION BY ASKING PEOPLE WHO HAD BEEN NAME IN THIS INVESTIGATION, HAS BEEN PRESENT AT MEETINGS WHERE THESE TECHNIQUES HAVE BEEN DISCUSSED, WHETHER OR NOT THEY WERE PRESENT AT THOSE MEETINGS IN GUANTANAMO AND WHAT WAS DISCUSSED. AND CONTINUING THE EFFORTS TO FIND OUT WHAT HAPPENED TO THE SERVICES DOCUMENTS, THOSE SERVICES RECOMMENDATIONS, THOSE SERVICES RED FLAGS THAT WERE SHARED WITH THE SECRETARY OF DEFENSE'S OFFICE OF LEGAL COUNSEL. THEY MAY NOT BE ADDRESS THERE HAD. BUT THE TESTIMONY INDICATED THAT AS A MATTER OF FACT THEY WERE SHARED WITH THE GENERAL COUNSEL -- EXCUSE ME, OR THE SECRETARY OF DEFENSE. THAT'S WHAT THE TESTIMONY WAS TODAY. THE FORMER GENERAL COUNSEL SAYS HE SAW THEM. HE HEARD ABOUT CONCERNS, DOES NOT REMEMBER WHETHER HE SAW THE DOCUMENTS OR ASKED FOR THE DOCUMENTS. THAT IS TO PUT IT MILDLY A VERY DISAPPOINTING KIND OF A RESPONSE TO WHAT IS AN EXTRAORDINARILY SERIOUS QUESTION. WHICH IS HOW DO YOU DEAL WITH DETAINEES AND LEGAL RESPONSE HERE WAS INADEQUATE AND TO PUT IT -- TO UNDERSTATE IT. AND WE WILL CONTINUE TO GET INTO THE VARIOUS QUESTIONS THAT I'VE JUST INDICATED IN OTHERS AND IT'S BEEN A LONG DAY, I KNOW, FOR OUR WITNESSES. WE THANK ALL OF OUR WITNESSES. WE THANK YOU, MR. HAYNES, FOR BEING HERE VOLUNTARILY. AND WE THANK OUR COLLEAGUES FOR PARTICIPATEING IN THIS AND WE'LL STAND ADJOURNED.