Policy rift seen on detainees

WASHINGTON _ Top military lawyers never agreed with the Bush administration's decision to withhold protections of the Geneva Conventions from captured Al Qaeda and Taliban members, and later sharply disagreed with civilian leaders over using coercive interrogation techniques on them, according to former officials who worked on detainee issues.

The lawyers were opposed by their civilian counterparts at the Defense Department, who sided with interrogators in the field who put the highest priority on obtaining information about terrorist activity, the officials said.

In the eyes of many in the military, the detainees deserved the same protections that Americans would expect from a foreign country holding captured US soldiers, meaning that there should be strict limits on coercive interrogations, according to Mark Jacobson, a former Pentagon detainee policymaker who left in the summer of 2003 and who is now a visiting scholar at Ohio State University.

Those sentiments by the military do not appear among the several hundred pages of memos the Bush administration released this week in an effort to convince the public that it had not condoned torture.

A second former senior government official -- a civilian who took part in the deliberations from outside the Defense Department -- confirmed that account. He said the Judge Advocate General lawyers, who are the top uniformed legal advisers for each branch of the military, were fighting for policy, not law.

''There were concerns raised by some of the JAG lawyers about the legal analysis," he said. ''But what they were really arguing about was policy, not law: 'If we were to use aggressive interrogation tactics, that would reduce the protections of our soldiers.' . . . They believed that the Geneva Conventions apply to all conflicts -- and to all people in those conflicts."

Military lawyers initially appeared to lose their battle for a more restrictive interrogation policy: An administration memo in April 2003 recommended that Defense Secretary Donald H. Rumsfeld approve a full range of 35 techniques. Nine were for exceptional use only, including slapping, sleep deprivation, hooding, and use of dogs to induce fear.

But that same memo warned Rumsfeld of a potential backlash if the more aggressive tactics were used: If the treatment became public, ''it is likely to be exaggerated or distorted in the US and international media accounts," undermining support for the war on terrorism. Moreover, US officials could be subject to human-rights prosecutions abroad and the tactics could be used to justify mistreatment of captured American soldiers.

Two weeks later, Rumsfeld struck down 11 of the techniques recommended for his approval. The military service lawyers' point of view seemed to carry some weight with the defense secretary, as he insisted in instructions sent to the prison at Guantanamo Bay Navy Base that he personally sign off on any adverse treatment, including isolation or intimidating a detainee with a version of ''good cop, bad cop."

Jacobson, the former civilian detainee-policy adviser, said he found Rumsfeld's policy ''too timid" because in practice it would mean that an interrogator had to get top-level approval just to give and then take away a fish sandwich from the McDonalds on the Guantanamo Bay Navy Base.

''I thought that was crazy," he said. ''That kind of oversight should be delegated down the chain of command."

The months of debate between the aggressive civilian policymakers and the traditionalist military lawyers began in the discovery that among the 600 detainees at Guantanamo Bay was an Al Qaeda member who may have been intended to be a hijacker on Sept. 11, 2001.

Mubarak Al Qahtani, a Saudi born in 1975, had been captured along the Aghanistan-Pakistan border in December 2001. He was among the first batch of ''unlawful combatants" to be shipped to Guantanamo in January 2002. Although he initially claimed to know nothing, officials learned he had been turned away by immigration officials at Orlando International Airport in August 2001 while attack ringleader Mohammad Atta was waiting in the lobby.

But by the fall of 2002, he was not being cooperative, Pentagon officials said. Officials wanted to get tougher on Qahtani out of fears that Al Qaeda might be planning another attack to coincide with the first anniversary of the Sept. 11 attacks.

Interrogators asked for top-level approval of harsher techniques, according to memos released this week.

Qahtani cracked under the harsher techniques, according to Daniel J. Dell'Orto, a deputy Pentagon general counsel. Qahtani gave up information about Jose Padilla, the American citizen accused of plotting attacks in the United States, and Richard Reid, who had tried to blow up a commercial airliner in December 2001.

Qahtani also recalled face-to-face meetings with Osama bin Laden and said Sept. 11 mastermind Khalid Sheik Mohammed sent him to the United States. He fingered Adnan Al Shukrijumah, one of the seven Al Qaeda suspects who the FBI warned last month may be at large in the United States.

Some confusion remains over when the harsher techniques were used, however. Pentagon officials told reporters this week that the more aggressive interrogation techniques were used in Guantanamo only from December 2002 to early January 2003, after Rumsfeld approved a list and before he rescinded that order.

But Jacobson said that account was mistaken. He said the order from Rumsfeld was never transmitted down to Guantanamo before it was rescinded, and that interrogators of detainees, including Qahtani, had been receiving approval from their Guantanamo superiors for use of tougher techniques throughout 2002.

''That's inaccurate," Jacobson said of Dell'Orto's account. Jacobson said he was certain that interrogators were intimidating detainees by bringing dogs into the room -- ''muzzled and properly restrained" -- and said he believed that techniques used in 2002 included fake documents, stress positions, hooding, isolation, nakedness, inducing stress with military dogs, taking away all cell items, and sensory deprivation.

By the fall, Jacobson said, interrogators began to ask to use those techniques more often and also asked about more aggressive techniques, such as fear of imminent death, exposure to cold water, simulating suffocation with wet towels, and grabbing and pushing. That surge in requests -- for techniques the military had formerly used only in teaching soldiers how to survive and resist illegal treatment if they were captured -- prompted Guantanamo commanders to seek guidance from the Pentagon on how much was permissible, he said.

In December, Rumsfeld signed off on using some of the techniques employed at Guantanamo. In January, he rescinded that permission and ordered a full legal and policy review. Although Rumsfeld ordered that review to take no longer than 15 days, the working group of civilian and military lawyers and officials did not complete their work for about three months.

''That group initially undertakes to complete its work in two weeks, because, again, al Qahtani is essentially on hold at that point for gathering intelligence, and we want to get back to him," Dell'Orto said Tuesday. ''It becomes a hotly debated issue among the group, because we are dealing with the law, we're dealing with history, we're dealing with tradition, we're dealing with many things that factor into the survey on what to do in a new kind of war."

In Guantanamo, Jacobson recalled, interrogators were furious. In his sweeping recision order, Rumsfeld had removed authority for all techniques labeled ''category two," including ones they saw as harmless, such as faking documents to trick detainees. As a result of asking the military bureaucracy for more tools, they suddenly had fewer than they'd had in the first place.

''A sloppy, byzantine, bureaucratic process resulted in interrogators being provided less basic tools than they had before they made the request," Jacobson said. ''Because of lawyers not understanding the art and science of interrogation and how important ruses and deception are, we managed to restrict interrogators from using even basic techniques."

However, he said, after he visited Guantanamo in early 2003 and got an earful from interrogators, he worked over the next ''four to eight weeks" and was able to restore some of those allowed techniques. No memos or documents from this period were included in the release this week.