WASHINGTON — A senior CIA lawyer advised Pentagon officials about the use of harsh interrogation techniques on detainees at Guantanamo Bay in a meeting in late 2002, defending waterboarding and other methods as permissible despite U.S. and international laws banning torture, according to documents released Tuesday by congressional investigators.
Torture "is basically subject to perception," CIA counterterrorism lawyer Jonathan Fredman told a group of military and intelligence officials gathered at the U.S.-run detention camp in Cuba on Oct. 2, 2002, according to minutes of the meeting. "If the detainee dies, you're doing it wrong."
The document, one of two dozen released by a Senate panel investigating how Pentagon officials developed the controversial interrogation program introduced at Guantanamo Bay in late 2002, suggests a larger CIA role in advising Defense Department interrogators than was previously known.
The new evidence, along with hours of questioning of former Pentagon officials at a hearing of the Senate Armed Services Committee Tuesday, shed light on efforts by top aides to then-Defense Secretary Donald Rumsfeld to research and reverse-engineer techniques used by military survival schools to prepare U.S. service members for possible capture by hostile forces. The techniques — sensory deprivation, forced nudity, stress positions and exploitation of phobias, such as fear of dogs — would eventually be approved for use at Guantanamo Bay and would spread to U.S. detention facilities in Afghanistan and Iraq, including the notorious Abu Ghraib prison. Nearly all were later rescinded.
The newly released documents show that in the summer of 2002, Pentagon officials compiled lists of aggressive techniques, solicited opinions from the CIA and others, and implemented the practices over strong opposition from military lawyers who argued that the proposed tactics were probably illegal.
The memos and other evidence evoked bipartisan condemnation from members of the Senate Armed Services Committee who grilled some of the former and current officials involved with the decisions.
"The guidance that was provided during this period of time, I think, will go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation's military and intelligence communities," said Sen. Lindsey Graham, R-S.C.
Sen. Carl Levin, D-Mich., the committee chairman, asked: "How on Earth did we get to the point where a United States government lawyer would say that … torture is subject to perception?"
One of the most explosive memos was the account of the October 2002 Guantanamo Bay meeting in which the CIA's Fredman joined 10 Defense Department officials and lawyers to discuss how to extract better intelligence from the detainees there. Fredman discussed the pros and cons of videotaping, talked about how to avoid interference by the International Committee of the Red Cross and offered a strong defense of waterboarding.
CIA spokesman George Little declined to comment on the remarks attributed to Fredman. "The far more important point is the fact that CIA's terrorist interrogation program has operated on the basis of measured, detailed legal guidance from the Department of Justice," he said.
White House spokesman Tony Fratto said the administration's policy has been to treat detainees humanely and within the law. "Abuse of detainees has never been, is not, and will never be the policy of this government," he said at a briefing Tuesday.
While the outlines of the Guantanamo Bay program are known, the new documents suggest a keen interest by the CIA and Pentagon in the use of tactics from a program known as Survival, Evasion, Resistance and Escape, or SERE. Officials involved in SERE training acknowledged being asked to write memos for senior Pentagon officials about which techniques had the greatest psychological effect.
Among those questioned about decisions was William "Jim" Haynes II, a former Defense Department general counsel who acknowledged pressing for more aggressive techniques but said the decisions were driven by the fear of more terrorist strikes.
But Haynes and other Pentagon officials acknowledged that the proposed methods faced strong opposition at the time from experts in military and international law. Among those raising concerns was Mark Fallon, deputy commander of the Defense Department's Criminal Investigation Task Force, who warned in an October 2002 e-mail to Pentagon colleagues that the techniques under discussion would "shock the conscience of any legal body" that might review how the interrogations were conducted.
"This looks like the kind of stuff congressional hearings are made of," Fallon wrote. He added: "Someone needs to be considering how history will look back at this."