U.S. Struggled Over How Far to Push Tactics

Navy general counsel Alberto J. Mora brought the issue to the attention of Haynes. Mora's appeals were ignored, however, until he threatened to put his concerns in writing for Haynes, several senior Pentagon officials said. Mora's questions led to the discovery that among the list of "counter-resistance strategies" at Guantanamo were such tactics as using scenarios "designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family," according to an October 2002 memo, and wrapping detainees in wet towels or dripping water on them to make them believe they would suffocate.

Lt. Col. Diane E. Beaver, the legal counsel at Guantanamo then, ruled that those and other techniques -- including 20-hour interrogations, light and sound assaults, stress positions, exposure to cold weather and water -- were legal. She said they could be used with proper oversight and training of interrogators, as long as "there is an important governmental objective, and it is not done for the purpose of causing harm or with the intent to cause prolonged mental suffering."

Interrogators at the detention facilities were particularly interested in using the techniques against two prisoners -- one of them Mohamed al Qahtani, a Saudi detainee who some officials believed may have been the planned 20th hijacker on Sept. 11. Both detainees were considered to have important information about potential future terrorist operations, defense officials have said.

Maj. Gen. Michael Dunlavey, the commander of Guantanamo, agreed, and sent the list of tactics to Gen. James T. Hill, head of the U.S. Southern Command, for approval.

Hill was not as convinced, and wondered in a memo about the legality of some of the techniques. He asked Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, for guidance. In December, Rumsfeld approved the use of dogs and stripping, but threw out other controversial items.

Rumsfeld also set up a working group of military lawyers and others to deliberate over the range of techniques that might be useful and appropriate. The group came up with 35 techniques. Among the most severe were 20-hour interrogations, face slapping, stripping detainees to create "a feeling of helplessness and dependence," and using dogs to increase anxiety.

The president's directive in February 2002 that ordered U.S. forces to treat al Qaeda and Taliban detainees humanely and consistent with the Geneva Conventions does contain a loophole phrase: "to the extent appropriate and consistent with military necessity."

The working group's report discussed when the "military necessity" exception might be invoked, citing two factors. One was when government officials felt certain that a particular detainee had information needed to prevent an attack. The other factor was a likelihood that a terrorist attack was about to occur and the attack's potential scale.

But the report also noted that "military courts have treated the necessity defense with disfavor and in fact, some have refused to accept necessity as a permissible defense." The rejections have come from judges who objected to the notion of weighing one evil against another, or who feared that acceptance of the necessity argument would open the door to "private moral codes" substituting for the rule of law, the report said.

Other cautionary flags were raised as well. The report warned that use of exceptional techniques could have "adverse effects" on the "culture and self-image" of the armed forces, recalling the damage done in the past by "perceived law of war violations."

It argued that use of such tactics in some cases but not others could create uncertainty among interrogators about the appropriate limits for interrogators. It also noted that, if the tactics became public, the disclosure could undermine confidence in the war on terrorism and in the military tribunal process that was developed for putting detainees on trial.

Rumsfeld eventually pared the list of 35 methods to 24. Most were part of standard military doctrine. Seven, however, went beyond that, including: removing a detainee from the standard interrogation setting and putting him in a less comfortable room; replacing hot rations with cold food or military Meals Ready to Eat; adjusting the temperature to uncomfortable levels or introducing an unpleasant smell; reversing sleep cycles from night to day; deceiving detainees into thinking they were being questioned by people from a country other than the United States.

"The secretary has placed great stock in the legal reviews that have taken place at every level, and has been persuaded each time that he has had to make decisions, that there were sufficient legal reviews along the way," DiRita said.

A suspected Iraqi member of the terrorist group Al Ansar did not receive such a thorough legal review, defense officials said. The man -- identified by U.S. News & World Report as Hiwa AbdulRahman Rashul -- was picked up by Kurdish soldiers in June or July of 2003 and taken outside Iraq by the CIA for interrogation. In October, the CIA's general counsel told the CIA's directorate of operations that it had to bring the man back to Iraq, since all Iraqi detainees were to be accorded treatment under the Geneva Conventions.

Tenet asked Rumsfeld not to give the prisoner a number and to hide him from international Red Cross officials. He became lost in the system for seven months and was not interrogated by CIA or military officials during that time.

In his investigation into the abuse of detainees at Iraq's Abu Ghraib prison, Army Maj. Gen. Antonio M. Taguba had criticized the CIA practice of maintaining such "ghost detainees" and called the practice "deceptive, contrary to Army doctrine and in violation of international law."

Rumsfeld was asked at a news conference last week, "How is this case different from what Taguba was talking about, the ghost detainees?"

"It is just different, that's all," Rumsfeld replied.

"But can you explain how and why?"

"I can't."

Staff writers Mike Allen and R. Jeffrey Smith contributed to this report.