Can the ‘20th hijacker’ of Sept. 11 stand trial?

By this time, law enforcement interrogators said, they had seen signs of coercive or abusive techniques being tried by the young, mostly inexperienced, military intelligence personnel: a cinder block left in the interrogation box, apparently used to hold a detainee in a stress position, called short shackling; a detainee wrapped from head to toe in duct tape. These techniques were not in the interrogation bible, the Army Field Manual.

The al-Qahtani plan went much further. The law enforcement agents began to hear a new term, SERE, an acronym for Survival, Evasion, Resistance and Escape. SERE training is provided to U.S. Special Forces and other military personnel to prepare them to withstand torture if they become prisoners of war. It includes mocking of their religious beliefs, sexual taunting, and a technique called water-boarding, which induces water through the nose to make a prisoner feel like he's drowning.

Intelligence interrogators had the idea to "reverse-engineer" SERE, to use its techniques to pry information out of the suspected al-Qaida and Taliban terrorists. Pentagon e-mails seen by MSNBC.com show that at least a half dozen military intelligence personnel from Guantanamo, including at least one medical adviser, went to Fort Bragg, N.C., on Sept. 16-20, 2002, for SERE training. It was an experiment, apparently not unlike what the CIA had been trying on the few high-value detainees kept at secret locations.

The law enforcement agents, who were collecting intelligence information but primarily focused on developing cases for Pentagon prosecutors, say they questioned whether SERE tactics would produce useful information.

"It was the latest gimmick," said Michael Gelles, the chief psychologist for the Naval Criminal Investigative Service and an adviser to the law enforcement agents at Guantanamo. "The problem was these techniques were taught to harden you against interrogation."

File Criminal investigator Mark Fallon, left, and psychologist Mike Gelles, both with the Naval Criminal Investigative Service, raised alarms about the use of aggressive interrogation techniques at Guantanamo Bay.

Gelles said he called Col. Morgan Banks, the director of the Psychological Applications Directorate at Fort Bragg. "I said it was nuts," Gelles recalls, "and told him we were concerned about this. He said it was used to train for resistance, and would not work as an interrogation approach. But they still teach it." That September of 2002, Col. Mallow and Fallon ordered their agents in writing not to engage in coercive interrogations, particularly using SERE techniques.

They also said they and their agents raised these concerns several times with the commander at Guantanamo, Gen. Michael E. Dunlavey, and his staff, but he "wouldn’t listen at all," Col. Mallow said.

Gen. Dunlavey, a lawyer and reserve officer, now a state judge in Erie, Pa., says the law enforcement agents "are absolutely wrong."  They didn't speak up to him about any coercive interrogations, he said. Any use of the SERE techniques must have begun after he left. "Whatever happened after Gen. Miller took over, I can't tell you."

Dunlavey said he always believed that "torture is wrong," and that his views were right in line with the law enforcement views. He said couldn't comment further because he is a defendant in two lawsuits brought by detainees.

File Abusive interrogation produced little new informationa, said Col. Brittain P. Mallow, commander of the Pentagon's Criminal Investigation Task Force. "I will just say that most of what we knew, we knew before."

Back in the states, Col. Mallow and Fallon said, they raised the issue almost weekly in August and September 2002 with lawyers from the office of the Pentagon general counsel, William J. Haynes III, as well as senior Army officials. Mallow said he recalls clearly that one meeting was on Sept. 11, the anniversary of the attacks, because his father died that night.

The cops argued that the al-Qahtani plan not only was illegal and unreliable, but also unnecessary. Mohammed al-Qahtani was not alleged to be a leader of the Sept. 11 plot. He was not trained as a pilot. If he was involved, he was one of the "muscle" hijackers. Everything known about al-Qaida, they said, suggests that information is compartmentalized.

Mallow said the senior Pentagon lawyers were sympathetic, but had limited influence on policy areas handled by the office of the secretary of defense.

A VIP tour

Into the interrogation debate flew a group of legal VIPs from the White House, the Justice Department and the Pentagon.

David Bohrer / White House David Addington, the chief of staff to Vice President Cheney, was among the legal VIPs visiting Guantanamo Bay while more aggressive interrogations were debated.

Defense Department e-mails seen by MSNBC.com show that a delegation visiting Guantanamo on Sept. 25, 2002, included Alberto R. Gonzales, then the White House counsel and now attorney general; David S. Addington, legal counsel to Vice President Dick Cheney, now his chief of staff; Timothy E. Flanigan, the deputy White House counsel; William Haynes III, the Pentagon general counsel; Larry Thompson, then deputy attorney general; Christopher A. Wray, the principal associate deputy attorney general, now head of Criminal Division at the Justice Department; and John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel, who reportedly had just helped write an Aug. 1, 2002, "torture memo" to Gonzales, defining torture narrowly as causing pain equivalent to organ failure or death.

The visiting VIPs met with Gen. Dunlavey and his staff, but not with any of the law enforcement investigators who opposed the aggressive interrogations. The White House and the Pentagon will not comment on the visit, other than to say that delegations frequently visited Guantanamo to discuss detainee matters.

Yoo has expressed the administration’s position on the balance between anti-terrorist operations and law enforcement in the war on terror.

"You know, the point of the war is not to collect evidence and solve crimes; it’s to fight and defeat the enemy," Yoo, now a law professor at the University of California, said in an NPR interview this month. "So I think this sort of flexible process reflects the demands and the nature of warfare."

The Pentagon’s law enforcement investigators bristle at the idea that defeating al-Qaida was solely the mission of the intelligence interrogators.

"It was our job to prevent the next attack," Fallon said. "Anyone in the United States government’s job, particularly someone who is a federal agent, law enforcement officer, is to prevent the next attack against the United States. ... The question we raised, rather vigorously: Will you really accomplish that objective by using aggressive technique?"

A menu of tactics

On Oct. 11, 2002, Gen. Dunlavey sent a formal plan for al-Qahtani’s interrogation up the chain of command. He sought approval for a menu of 19 "counter-resistance techniques" not in the Army Field Manual:

• Category 1: Yelling, deception, use of multiple interrogators, misrepresenting identity of the interrogator (as from a country with a reputation for harsh treatment of prisoners).
• Category 2: Stress positions (such as standing for up to four hours), use of falsified documents or reports, isolation for 30 days or longer, interrogation in places other than the interrogation booth, deprivation of light and sound, hooding, interrogation for up to 20 hours straight, removal of all comfort items (including religious items), switching from hot food to military meals ready to eat, removal of clothing, forced grooming and shaving of facial hair, use of phobias (such as fear of dogs) to induce stress.
• Category 3: Use of scenarios to persuade the detainee that death or pain is imminent for him or his family, exposure to cold or water, use of mild non-injurious physical contact, use of a wet towel or water-boarding to simulate drowning or suffocation.

When preliminary approval of these techniques came from the Army’s Southern Command in Miami in early November, the law enforcement agents at Guantanamo offered an alternative plan to the intelligence side. In writing, they described successes they had seen with rapport-building, and criticized the proposed aggressive techniques as  "possibly illegal" and harmful to law enforcement efforts. They also said that agents of the Defense Humint Service, the Defense Department's human intelligence spy agency, "blatantly misled" Pentagon officials by claiming that the FBI endorsed these coercive methods.

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