Gitmo interrogations spark battle over tactics

Updated: 7:34 p.m. PT Oct 23, 2006

Bill Dedman Investigative reporter • Profile • E-mail

Speaking publicly for the first time, senior U.S. law enforcement investigators say they waged a long but futile battle inside the Pentagon to stop coercive and degrading treatment of detainees by intelligence interrogators at Guantanamo Bay, Cuba.

Their account indicates that the struggle over U.S. interrogation techniques began much earlier than previously known, with separate teams of law enforcement and intelligence interrogators battling over the best way to accomplish two missions: prevent future attacks and punish the terrorists.

In extensive interviews with MSNBC.com, former leaders of the Defense Department’s Criminal Investigation Task Force said they repeatedly warned senior Pentagon officials beginning in early 2002 that the harsh interrogation techniques used by a separate intelligence team would not produce reliable information, could constitute war crimes, and would embarrass the nation when they became public knowledge.

The investigators say their warnings began almost from the moment their agents got involved at the Guantanamo prison camp, in January 2002. When they could not prevent the harsh interrogations and humiliation of detainees at Guantanamo, they say, they tried in 2003 to stop the spread of those tactics to Iraq, where abuses at Abu Ghraib prison triggered worldwide outrage with the publishing of graphic photos in April 2004.

Their account, confirmed by the Navy's former general counsel, outlines a fierce debate within the Defense Department over the competing goals of justice and security in the war on terror. President Bush has said repeatedly that the detentions at Guantanamo were intended not only to secure intelligence information to prevent al-Qaida attacks, but also to "bring to justice" the terrorists.

As a result, a dual structure of intelligence gathering and criminal investigation, with two arms of the U.S. military, with overlapping missions, interrogating the same prisoners, continues today.

The law enforcement agents, who were building criminal cases against the detainees, also say that military prosecutors told them that abusive interrogations at Guantanamo compromised the chance to bring some suspected terrorists to trial. Among them, the agents say, is Mohammed al-Qahtani, a Saudi whom the Pentagon has described as the intended 20th hijacker in the Sept. 11, 2001, terror attacks.

"We were told by the Office of Military Commissions, based on what was done to him, it made his case unprosecutable," said Mark Fallon, the deputy commander and special agent in charge of the Criminal Investigation Task Force from 2002 to 2004. "It would taint any confession if obtained under coercion. They were unwilling to move forward with any prosecution of al-Qahtani."

A Pentagon spokesman on Friday dismissed this as "speculation," but would not say whether al-Qahtani would be tried. He is not among the 10 detainees who have been approved for a military trial.

INSIDE GITMO About this series The following members of the Criminal Investigative Task Force at Guantanamo Bay and other military officers and civilians were interviewed in preparing these articles: — Col. Brittain P. Mallow, CITF's commander from 2002-2005. — Mark Fallon, deputy commander and special agent in charge of the CITF from 2002-2004. — Jeffery K. Sieber, former resident agent in charge of CITF activities at Guantanamo. — Randy Carter, former chief of operations for CITF at the interrogation booths at Guantanamo. — Michael Gelles, chief psychologist of the Naval Criminal Investigative Service, who advised CITF on interrogations. — David L. Brant, former director of the Naval Criminal Investigative Service. — Major General Michael E. Dunlavey, former commander of detainee operations at Guantanamo. — Major General Geoffrey D. Miller, former commander of detainee operations at Guantanamo. — Alberto J. Mora, former general counsel of the Navy.

It was two years before the photos emerged from Abu Ghraib, the Pentagon cops said, when they began arguing that coercive or abusive interrogations would not serve war-fighting or justice.

"No. 1, it’s not going to work," said Col. Brittain P. Mallow, the commander of the task force from 2002 to 2005.

"No. 2, if it does work, it’s not reliable. No. 3, it may not be legal, ethical or moral. No. 4, it’s going to hurt you when you have to prosecute these guys. No. 5, sooner or later, all of this stuff is going to come to light, and you’re going to be embarrassed."

The members of the criminal task force who spoke with MSNBC.com are experienced criminal investigators. The task force drew from the Army, Navy and Air Force, as well as from the FBI, Secret Service and other law enforcement agencies. These agents are not whistleblowers. Those still serving inside the Department of Defense received authorization to be interviewed by MSNBC.com.

Working in the shadow of Sept. 11, under pressure to prevent another attack on the nation, the investigators found themselves pitted in a war of principle against a unit of young intelligence interrogators, often reservists, with little or no experience.

Shane T. Mccoy / DOD via Reuters file Detainees sit in a holding area at Camp X-Ray, Guantanamo Bay, Cuba, on Jan. 11, 2002. "There’s always been some hard-core people down there," said one investigator, Jeffery K. Sieber, "who want to do very bad things to the United States. And some who weren’t — but now they’re very upset."

Based on their experience interrogating al-Qaida members involved in the bombing of the USS Cole and other attacks, the agents preferred an approach to interrogation they called "rapport building."

"We had agents who knew how to do adversarial interviews, had sat across from bad guys," Col. Mallow said. "Interviews and interrogations are not about making someone talk. They are about making them want to."

Early in 2002, when the first detainees were brought from the Afghan front to the barbed wire of Guantanamo, the law enforcement agents said, they saw intelligence interrogators struggle to apply to suspected al-Qaida terrorists the techniques taken from the Army Field Manual. They said frustrated intelligence interrogators were trying whatever they thought might work: One interrogator fancied blaring country and western music and a full cowboy getup during his sessions.

By the summer of 2002, the agents said, the intelligence unit was experimenting with harsher tactics, such as using a cinderblock to hold a detainee in a "stress position" by forcing him to sit on it with his hands chained to the floor.

By the fall of 2002, believing that some detainees had al-Qaida training in resisting interrogation, the intelligence team sought greater leeway from Secretary of Defense Donald H. Rumsfeld. He approved new rules allowing stress positions for up to four hours, deprivation of light and sound, interrogation for up to 20 hours straight, removal of all comfort items (including the Koran and toilet paper), removal of clothing, forced shaving of facial hair, and use of military dogs to scare detainees.

In practice, these new rules were interpreted broadly: According to interrogation logs made public, al-Qahtani, the suspected 20th hijacker, was dressed in women's clothing and led around on a leash while performing dog tricks.

Warnings and alternatives

With increasing frustration, the agents said, they worked for change within the Pentagon in these ways:

• Suggested alternatives to the Army commanders in charge of the Guantanamo intelligence interrogations, Maj. Gen. Michael E. Dunlavey and his replacement, Maj. Gen. Geoffrey D. Miller. They said Dunlavey wouldn’t listen, and Miller questioned their loyalty and patriotism, saying, "If you want to be on the team, you’ve got to put on the uniform." Miller acknowledges saying this. He said he was trying to get the intelligence and law enforcement groups to work together, to repair a situation where they were barely speaking. Dunlavey says he was a supporter of the rapport-building approach, and "torture doesn't work," but he can't say more because he is a defendant in two lawsuits brought by former detainees.
• Refused to participate in interrogations they felt were abusive; reported any signs of criminal acts by the intelligence interrogators; blocked an FBI plan to move al-Qahtani to another country where he could be tortured; and threatened to remove their investigators from Guantanamo entirely if they were forced to watch abusive interrogations.
• Pushed their warnings up the chain of command to the Pentagon’s general counsel, William J. Haynes III, and to officials in Rumsfeld's office. "In some cases, they listened to what we said," said Col. Mallow, the unit’s commander. "In other cases, we just got head nods."

The agents said they were shut out of briefings when senior lawyers from the Bush administration toured Guantanamo on Sept. 25, 2002, while the plan for the aggressive interrogation of al-Qahtani was being formed. The VIP visitors included White House counsel Alberto R. Gonzales, now the attorney general; David S. Addington, legal counsel to Vice President Dick Cheney, now his chief of staff; and Justice Department attorney John Yoo, who helped write memos narrowly defining torture.

They also were surprised not to be contacted during subsequent Pentagon investigations of detainee treatment at Abu Ghraib and Guantanamo, which concluded that there was no policy of abuse. Fallon, Col. Mallow and other investigators recently provided written answers to questions from Sen. Carl Levin of Michigan, the ranking Democrat on the Senate Armed Services Committee, who has told the investigators he plans to issue a report as soon as this week calling for an investigation of Bush administration policies on detainees.

'We will not be a party to this'
"What makes me intensely proud of all these individuals was they said, ‘We will not be party to this, even if we're ordered to do so,’" said Alberto J. Mora, the former general counsel of the Navy, who ultimately got Secretary Rumsfeld to roll back permission for some of the harshest interrogation techniques. "They are heroes, and there's no other way to describe them. They demonstrated enormous personal courage and personal integrity in standing up for American values and the system we all live for."

In the end, the law enforcement investigators said, they were not able to stop abusive interrogations, but they were able to slow them.

"We always said, there are no secrets, just delayed disclosures," said Fallon, the chief investigator. "And what we told our folks is, your grandchildren are going to ask, ‘What did you do during the war?’ We wanted our folks to be proud of what they did."

******

Mark Fallon is a cop.

Ed Buice / NCIS Mark Fallon, the special agent in charge of the Pentagon's Criminal Investigation Task Force at Guantanamo Bay. "We were very, very concerned to ensure that we would not, in the heat of battle, in a highly emotional period, in an effort to do the right thing, commit criminal acts."

The grandson of a police commissioner and son of a deputy chief, he married the daughter of his father’s partner from the detective bureau. He grew up in Harrison, N.J., now best known as "Sopranos" family territory. (The television version of Big Pussy’s auto body shop is just down the street from Fallon's boyhood home, and his boat is the "Bada Bing.") After college, Fallon took his father’s advice to "go federal," first as a deputy U.S. marshal and then in 1981 as an agent for the Naval Criminal Investigative Service.

Working undercover and wearing a rattail haircut as a young agent, he busted Filipino drug dealers in Subic Bay before the ships came in, hoping to discourage sales to American sailors. In 1993, he worked with the FBI on the investigation of the blind sheik, Abdul Omar Abdel-Rahman, who planned to blow up the United Nations and other New York City landmarks. In 1998, he was the lead agent investigating the joyriding Marine aviators from Aviano Air Base who clipped a cable-car wire in Italy, killing 20 tourists. As chief of counterintelligence operations in Europe and the Middle East, Fallon commanded the Navy’s USS Cole Task Force, investigating with the FBI the 2000 al-Qaida suicide bombing that killed 17 sailors in the Yemeni port of Aden.

As an investigator, Fallon has been trained to collect the facts and challenge assumptions. As a civilian who has served the Navy and Marine Corps in 31 countries, he has grown accustomed to speaking truth to people in uniforms – with a New Jersey bluntness if necessary. "If you’re honest and act with integrity," he says, "what else do you need?"

'This Is Your Life'
In January 2002, Fallon was lent by the Navy to the Army to serve as deputy commander and special agent in charge of a new Criminal Investigation Task Force. Based at Fort Belvoir, Va., he supervised agents working in Afghanistan, Iraq and Naval Station Guantanamo Bay, commonly known as "Gitmo," building cases against detainees believed to be al-Qaida members or supporters.

The investigators faced an almost insurmountable challenge at Guantanamo.

MORE FROM TERRORISM

Terrorism Section Front

Cooperation hurts inmate at Gitmo trial Witness: Bin Laden 'happy' with 9/11 toll Al-Qaida leader grants rare TV interview Uzbek charged over possible WMD material Terrorism Section Front   Add Terrorism headlines to your news reader: