Alberto J. Mora

“ Taylor provided me with a copy of a composite document (ATT 2) capped by an Action Memo from DoD General Counsel William Raynes to the Secretary of Defense entitled "Counter-Resistance Techniques." The memo, which I had not seen before, [3] evidenced that on December 2, 2002, Secretary Rumsfeld had approved the use of certain identified interrogation techniques at Guantanamo, including (with some restrictions) the use of stress positions, hooding, isolation, "deprivation of light and auditory stimuli," and use of "detainee-individual phobias (such as fear of dogs) to induce stress." ”

“ This, I felt, was a clearly erroneous conclusion that was at variance with applicable law, both domestic and international, and trends in constitutional jurisprudence, particularly those dealing with the 8th Amendment substantive due process protections that prohibited conduct "shocking to the conscience." ”

“ Walker, she objected to an effort by the OGC representative, which I had directed, to insert 8th Amendment analysis into the Working Group report. In my reply I sought to alert her to the mistakes in the OLC Memo's legal analysis and to its unreliability as guidance. I wrote: "The OLC draft paper is fundamentally in error: it spots some of the legal trees, but misses the constitutional forest. Because it identifies no boundaries to action —— more, it alleges there are none —— it is virtually useless as guidance as now drafted and dangerous in that it might give some a false sense of comfort." ”

“ This term describes the observed tendency among interrogators who rely on force. If some force is good, these people come to believe, then the application of more force must be better. Thus, the level of force applied against an uncooperative witness tends to escalate such that, if left unchecked, force levels, to include torture, could be reached. Dr. Gelles was concerned that this phenomenon might manifest itself at Guantanamo.
Director Brant reiterated his previous statements that he and the NCIS personnel at Guantanamo viewed any such abusive practices as repugnant. ”

“ Also, the threats against the United States came from many directions and many different potential consequences. Does the threat by one common criminal against the life of one citizen justify torture or lesser mistreatment? If not, how many lives must the threat jeopardize? Where does one set the threshold, if at all? In any event, this was not for us to decided in the Pentagon; these were issues for national debate.
My recollection is that I raised the following additional points with Mr. Haynes:
Mr. Haynes said little during our meeting. ”

“ Moreover, this discontent was not limited to NCIS; law enforcement and military personnel from other services were also increasingly disturbed by the practice.
Director Brant also repeated that NCIS had been informed that the coercive interrogation techniques did not represent simply rogue activiity limited to undisciplined interrogators or even practices sanctined only by the local command, but had been reportedly authorized at a "high level" in Washington. ”

“ In addition, the consequences of such practices were almost incalculably harmful to U.S. foreign, military, and legal policies. Because the American public would not tolerated such abuse, I felt the political fallout was likely to be severe. I provided RADM Lohr with a copy of the December 2nd Memo and requested that Navy JAG prepare a legal analysis of the issues. I also decided to brief Secretary of the Navy Gordon England and take my objections to DOD GC Haynes as quickly as possible. ”

“ On this and the following day, I reviewed the product of research that had been begun almost immediately following the news of the detainee abuse, in particular a memorandum of law prepared under RADM Lohr's direction by Navy JAG attorneys. (ATT 5) In addition, I reviewed a letter (Att 6) dated December 26, 2002, from Kenneth Roth, the Executive Director of Human RIghts Watch, a prominent human rights organiation, to President Bush. The letter, which contained legal analysis I considered largely accurate, had been dited in a Washington Post article published on the same date. ”