Monday, May 4, 2009

EXCLUSIVE: Lawyer's letter counters

torture report
Kara Rowland (Contact)

EXCLUSIVE:

The top CIA lawyer in charge of overseeing the agency's

interrogation program after Sept. 11 says his stance on
certain harsh techniques was misrepresented in a Senate
hearing and that he actually told Guantanamo Bay
officials to be careful, warning that some tactics could
violate international protocols.

In a Nov. 18 letter to senators on the Armed Services

Committee, a copy of which was obtained by The
Washington Times, Jonathan Fredman said he was trying
to tell top Guantanamo officials that legal uncertainties surrounding the word "torture" meant that
interrogators needed clear and specific guidance rather than having to figure it out themselves in
individual cases.

The primary focus of the letter is a record of an October 2002 meeting of defense officials at the
Guantanamo Bay prison in which Mr. Fredman was claimed to have said that the definition of torture
is "subject to perception," and that if "the detainee dies, you're doing it wrong."

Mr. Fredman, who was chief legal counsel at the CIA's Counterterrorist Center through April 2004,
disputes the accuracy of that memo, which became the basis for a harsh rebuke from Sen. Carl Levin,
Michigan Democrat and Armed Services Committee chairman, at a June hearing on interrogation
policies.
Mr. Levin said of Mr. Fredman, who did not testify at the hearing, "How on earth did we get to the
point where a senior U.S. government lawyer would say whether or not an interrogation technique is
torture is, quote, 'subject to perception,' and that if, quote, 'the detainee dies, you're doing it wrong'?"

Several weeks after Mr. Fredman sent his letter, the panel put out a report that repeated the claims from
the 2002 meeting record, which a CIA spokesman said "hardly seems fair."

In his six-page November letter, Mr. Fredman says the writer of the 2002 memo misconstrued enough
of his points that the memo is unreliable.

The document sheds light on U.S. efforts to ensure that its interrogation policies were legally justified
and describes Mr. Fredman's grappling with unprecedented legal questions "to protect the lives of our
people" in the aftermath of the Sept. 11 terrorist attacks.

Mr. Fredman said that he warned officials that the penalties for violating the U.S. anti-torture statute
were severe and included the death penalty. He also emphasized that techniques in the Army Field
Manual - which is currently in use - still may violate a nonbinding U.N. document on torture.

"I noted that the Istanbul Protocol of 1999 provides that even 'exposure to ambiguous situations or
contradictory messages,' the use of 'solitary confinement,' and the use of coercion to induce an
individual 'to betray someone placing them at risk of harm' all constitute torture. Under the Istanbul
Protocol, therefore, it is not clear that the techniques described in the U.S. Army Field Manual on
interrogation would be permitted," he wrote in his 2008 memo.

But the person taking notes at the 2002 meeting at Guantanamo Bay recorded Mr. Fredman's comment
at the time as: "An example of a different perspective on torture is Turkey. In Turkey, they say that
interrogation at all, or anything you do to[sic] that results in the subject betraying his comrades is
torture."

Mr. Fredman also challenged the meeting record's conclusion that he was saying that torture is in the
eyes of the beholder. Rather, he said, the opposite was the case.

"I also emphasized that the requirements of the statute are not, and cannot be, a matter for individual
perception," Mr. Fredman said in his letter to the panel, referring to the CIA's request for legal guidance
from Justice. "We did so specifically to avoid having the anti-torture statute misinterpreted as in any
way subject to an individual's particular perception."

The Office of Legal Counsel's response to interrogators, declassified last month by President Obama,
set off a political firestorm in the debate over enhanced interrogation techniques such as waterboarding,
which Mr. Obama has deemed torture.

CIA spokesman Paul Gimigliano said that Mr. Fredman "made it clear to the committee that the
so-called meeting minutes from Guantanamo do not reflect his views. He did not, to my knowledge,
have a chance to review them and - in any case - he takes strong exception to the picture they paint.
Despite that, the committee's report links him to statements that he denies and rejects. That hardly
seems fair. Mr. Fredman believes his opinions on interrogation have been grossly distorted."

A spokeswoman for Mr. Levin could not be reached for comment Sunday about Mr. Fredman's account.

Describing himself as a career employee "not beholden to any political party or particular
administration," he emphasized to senators the unprecedented nature of the legal questions that were
before him.

"In light of the thousands murdered in the attacks, and the prospects of thousands additional Americans
killed if we were to refrain from lawful activities that could avert the subsequent attacks, CIA would
have to accept chalk marks on its shoes if necessary, while still remaining in bounds, to protect the lives
of our people," he wrote. "The determination of necessity was one for the leadership to make, of
course, and not for the attorneys. However, the serious nature of the issues and the consequences of
error made it essential for the lawyers to determine just where the legal chalk lines lay."

Mr. Fredman said he "found no pleasure in those tasks" and offered his resignation on two occasions.

The Armed Services Committee used the disputed record of the 2002 meeting as part of the basis for its
report tracking the developments of interrogations conducted by the military.

In the executive summary to the committee report, released in December, the committee wrote:
"Minutes of that meeting indicate that it was dominated by a discussion of aggressive interrogation
techniques including sleep deprivation, death threats, and waterboarding, which was discussed in
relation to its use in SERE training."

The executive summary continued: "Mr. Fredman said that 'the language of the statutes is written
vaguely. ... Severe physical pain described as anything causing permanent damage to major organs or
body parts. Mental torture [is] described as anything leading to permanent, profound damage to the
senses or personality.' Mr. Fredman said simply 'It is basically subject to perception. If the detainee dies
you're doing it wrong.' "

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