Lt. Col. Thomas Berg was an assistant federal public defender and Army reservist when he was called up after 9/11. He was invited to participate in a Defense Department project to set up war crimes tribunals for captured Al Qaeda and Taliban prisoners. Here, he explains how the process they established for the tribunals, based on the Uniform Code of Military Justice and the Geneva Conventions, was rejected by the Pentagon civilian leadership. "They were overly result-oriented, terrified that somebody might be acquitted in the process," he tells FRONTLINE. Berg then traveled to Guantanamo to serve as a Judge Advocate General (JAG), or military legal adviser, to Gen. Rick Baccus, who headed detentions there until October 2002. He describes how confusion on the ground over the rules for detention and intelligence gathering led to bitter fights between the military police and intelligence personnel at Gitmo. This is the edited transcript of an interview conducted on July 18, 2005.
Where were you on Sept. 11, 2001?
Well, I was in Houston driving to Brazoria County to go meet with a prosecutor about a state piece of a plea agreement that we were working at in a federal case. And I was in my car when the news came over about the Twin Towers. And by the time I got to Angleton, the courthouse had closed. They'd shut down the local pilots who were spraying for bugs, and basically everything stopped, so I came back. And at that point I didn't know how it would affect me as an Army reservist, but I figured it would.
And it did?
It did. A little over a month later I received a phone call from a military lawyer that I'd known for some time who I had served with in Bosnia who asked me to participate in what was called the Tiger Team, which was the Judge Advocate General's [JAG] special project to determine whether we could conduct war crimes tribunals similar to what was done at Nuremberg. And given that opportunity and under the climate that we were living, I couldn't say no, so I agreed to go on active duty and participate in that endeavor.
What do you mean when you say "under the climate we were living"?
Well, post-9/11, we'd been attacked. We were pretty clear where it had come from with Al Qaeda. We were fairly sure that Osama bin Laden's location was Afghanistan, and we were certainly hopeful that once we initiated hostilities against them that we would capture people who had been involved in the planning for the attack on the Twin Towers.
First let's agree on the context. The context is America's scared and nervous and fearsome and angry and all of those things. Did you know that at the time discussion would take place that would go at the fundamental civil liberties issues for the next few years, maybe forever?
Well, as a criminal defense lawyer, of course I was certainly aware of the initial discussions about the Patriot Act and the implications that held for the kind of work we did. I'm a constitutional lawyer, and there were legitimate concerns within our community, voiced from the very beginning, about encroachment on liberty as a response to the attack. That didn't directly affect what we thought we were going to do in terms of the war crimes tribunals. We looked at that to be a traditional criminal process and response, both a vindication of what was done and I think also an effort to show the world that we really did elevate the rule of law above the rule of man. And we did not intend to be deterred by this particular episode from doing otherwise.
When did you get a sense that that might not necessarily be what was afoot?
When I got to the Pentagon -- and I think all of us [who] came together were idealists in a certain respect. All of us had been brought up in a military law tradition. We had all trained under the Uniform Code of Military Justice. We had trained many other lawyers under the UCMJ. We had all of us, at one time or another, instructed soldiers on the law of war. That's one of our functions as judge advocates. And we did not have a reality apart from that. And so it was with that kind of idealism or that kind of training and background that we went into this enterprise. And that's when we got caught in the political mix.
So you walk into the Pentagon. ... How do you get a sense that you're not in Kansas anymore, or Texas, if you will?
We worked long hard hours, both in trying to devise rules of procedure to adopt rules of evidence, try[ing] to borrow as much as we could from the Uniform Code of Military Justice to use in the process, as well as to start investigating the raw intelligence that was coming on individuals to determine who would be appropriate individuals to be prosecuted under this new procedure. And the proposals that we made for how to structure these tribunals were not well received above us, at the political levels, at the civilian levels above the military judge advocates. And we felt that there was consensus: We were a joint group, so we're not just Army, although Army felt that it had the lead based on our history of prosecuting war crimes. We had Navy and Marines and Air Force officers, lawyers. All of us had the same principles. But we didn't have the political objectives that the appointed officials had, and there was conflict.
How could you tell?
Let's see. Our bosses would come back beaten up from a meeting. (Laughs.) You could see the physical strain of difficult meetings, trying to achieve a consensus and not doing very well at it, or being reminded that they were subservient to the civilians, which is true in our system of government, but it's never pleasant to be frequently reminded of it.
How would you all react?
At first we probably just worked even harder because we believed that we were right in what we were doing. I think all of us were adhering to Geneva Conventions, among other things, since that's what our law of war is based on, so all our doctrine is based on Geneva Conventions. And we were uncomfortable with anything that went outside of those, nor did we see a justification for going outside, because we thought the objective could be achieved within the confines and limitations of what we knew.
When you say your bosses came back or your superiors came back, where were they getting the opposition from? Was it just DoD General Counsel's Office? Was it William J. Haynes and those guys? Was it bigger than that?
Well, certainly it would come from Haynes and DoD general counsel, because that's where they had the most frequent contact. But our sense was that it came also from White House counsel. I think they were bigger players than we initially perceived in this process. I don't think we realized how small we were in this process, because we thought we were the main effort, and it turned out that we were sort of the window dressing; that we would use military tribunals, but not necessarily military process.
What's the distinction?
Well, if you're familiar with how we try cases under the Uniform Code of Military Justice, it's very, very similar to a federal trial -- rules of procedure, rules of evidence, proof beyond a reasonable doubt. You can be acquitted or you can be convicted. And if you're acquitted, you walk away. It's a public trial. There are rules for classified information, but they are the exception rather than the rule. The individual is entitled to counsel, military counsel absolutely and civilian counsel if the individual chooses to have that civilian counsel in conjunction with military counsel.
... And we thought that we could try people accused of war crimes, essentially foreign soldiers or alien soldiers, under this process, and do it fairly. And above all we were looking for a fair result, something that someone could look at 50 years later just the same way we were looking at the Nuremberg trials from a 50-year perspective, and say, "Yes, they did it right." So that's where we were coming from.
And why was it important that history say they did it right?
Well, we're military professionals. We study history; we learn from history what is right and what is wrong. We also believe in our military justice system, and we didn't want to squander the gains of half a century by being used for some show trials, because we would inevitably be implicated in however these were used. They would be military tribunals. We would have military officers conducting all aspects of it and sitting in judgment, so yeah, we're concerned.
What's the view you "lost" to?
I don't want to call them the other side because in some respects we were all on the same side, but we had serious differences of opinion. But they were overly result-oriented, terrified that somebody might be acquitted in the process. We felt acquittals vindicate the process as they do in any criminal justice system that has due process in it. Sometimes the government loses, but that's OK because the system's set up where if there's reasonable doubt, you do lose even if the person is guilty. We had the sense that they didn't want to take the chance that that could happen.
Why is that?
I don't know what kind of insecurity drives that, but I think it's insecurity, a concern that then they have to explain why someone was acquitted, why the evidence wasn't good enough. I don't know. We to this day don't know why they had that insecurity or why they had the feeling that they needed to stack the deck so highly in favor of the government.
Do you have a sense that the president, the Department of Justice people, understood the importance of what you guys were about, or did they see it as a kind of impediment to speed and efficiency?
Well, I certainly can't speak for the president. The DOJ people, I think, clearly understood what we were about and weren't necessarily that far different from us. I know they were trying to put the [Zacarias] Moussaoui case together during that time, and they had Johnny Taliban [John Walker Lindh], so they were doing some prosecutions themselves in federal court, not too differently from what we hoped to do in these military tribunals. So I think they understood it, but I would think that we were told we were too far out in the foxhole. That's a military expression. If you're too far forward in the foxhole, you're likely to get shot, and that was the accusations, that we were pushing ourselves too far out too fast.
Talk to me a little bit about just the specifics of the Tiger Team.
Oh, that's just what we called ourselves to distinguish ourselves from other special projects. We were the military commissions or military tribunal project. We were a group of officers from captain to colonel who all had a significant interest in criminal law and in military justice in particular. We were a mixture of civilians, reservists and active-duty soldiers. We had in our midst people who had clerked on the Supreme Court, assistant U.S. attorneys. I was an assistant federal public defender. We had lawyers who had been recently trying court-martials [sic] on active duty. We had some people with administrative experience. It was a mixture, but the focus and the common ground was that all of us were engaged deeply in criminal law.
Whenever your superiors would come back down [from their meetings with those higher up in the administration] -- how did you all feel about what was going on?
Well, immensely frustrated. We went in there, I guess, as we perceived ourselves, as well-meaning patriots who thought we had right on our side, and we were getting a thumb in the eye for being too anxious to do hard work. And that was frustrating. I won't say we were demoralized, because I think our initial response was just to work that much harder.
At what point did you finally become demoralized?
I don't know that we ever became demoralized. I think we became more realistic and less naive as to the political piece that was going on above our heads. We had to scale back our objectives, our goals, and ultimately the process itself was taken from us in its entirety.
And given to?
It was more closely managed by DoD general counsel. There was still military involvement in it because they needed the military to ultimately conduct tribunals, which of course haven't really gotten off the ground in Gitmo. But the Tiger Team itself dissolved, and we found other missions.
We have direct access to our commanders. No one comes between us. We're part of his special staff as well as part of a larger staff. We have the power to say, "No, you can't do that." And for most commanding officers who are used to giving orders and then having people simply respond, to have someone who will, based on his opinion of the law, say "No, you can't do that," that places us in a unique position.
It gives us a unique responsibility, and it requires us to be fairly thick-skinned, because we occasionally incur the wrath of our bosses by doing that. But that's our obligation, is to tell them: "No, you can't do that"; "No, you can't target that mosque"; "No, you can't ramrod that particular individual for doing what you think he did, nor can you tell the jury to, or the panel, that you want them to convict him." There are any number of restrictions that we will place on the actions of our commanders because they'll violate the law. By doctrine, we are the conscience of the command.
And for 50 years, that's been the rules of the road, the way it operates?
Yeah. Certainly since the revision of the UCMJ after World War II, so more than 50 years under the current version of the manuals for court-martial and uniform code. That has been the rules of the road for us, and commanders are trained that that's the rules of the road for them, too.
So what changed after 9/11?
Well, in the field it hasn't changed. That's still the function that we perform. What has changed is probably the amount of civilian involvement in what was our relationship with our commander. Certainly at high levels of command, there's a large political component. Commanders who attend the War College know the senior service colleges. They learn, if they haven't already realized, that they have to get along with the political world as well as the military world to get things done. In those kinds of decisions where they would go to their JAG for guidance, I think there is more involvement from the civilian lawyers, the politically appointed lawyers, than there was before.
What's the effect of that?
Well, it brings a nonmilitary component into decisions. I guess a good example would be the conducting of interrogations at Guantanamo. I was at Gitmo early on, when we still essentially complied with the Geneva Conventions. If the commander's principal legal guidance is coming from political lawyers as opposed to his judge advocate, you don't know if those political lawyers are carrying water for someone else's agenda. Your judge advocate is not. And that can determine a number of things.
Well, what you decide is acceptable in conducting an interrogation. Is it your lawyer on the spot who has been trained in military law and Geneva Conventions who's going to advise you what's right or wrong, or is it a policy decision made a couple levels above you telling you what's right or wrong? And my personal perspective is that's what happened, and that's why we kind of lost control over how interrogations were to be conducted.
What informs their definition of what is right and wrong?
That's a fair question. When we were on the ground in Gitmo, we were told that we would accord "Geneva-like" treatment to the detainees, but we were never told what that was. And we knew what the Geneva Conventions required, but we didn't know what "Geneva-like" really meant, and we could not get guidance, although we requested [it]. We did not get guidance. It was being, I imagine, hacked out at high levels, but no one was making those hard decisions or willing to sign off on those hard decisions and then push it down to us and say, "This is what it means." And so that became a very ambiguous world.
And the results of ambiguity at that world?
The result of ambiguity in that world is I guess the difficulties that we created for ourselves once those pictures came out of Abu Ghraib and the reports came out of Gitmo. And I think it was a failure to make clear what needed to be made clear.
Help me understand what was actually happening at Gitmo in the early going. [The firsts detainees arrived in January 2002.] When you first got there, describe it. Take me there. Tell me what was going on.
There were two tasks force at the time. There was a detention task force, run by military police, commanded by a Marine brigadier and later by a Rhode Island National Guard brigadier.
Baccus, Rick Baccus. And we were operating under doctrine that was essentially developed from Geneva on how to run a prisoner-of-war camp. Although there were lots of published concerns about the appearance of Camp X-Ray -- if you remember the cages and the people in the cages -- well, the life of the soldiers who were guarding them was not markedly different. They were in stinky old tents right next to the cages. And the reason it was set up that way is because under Geneva Conventions, your soldiers and your detainees live in similar conditions. The only difference was there was probably better ventilation in the cages then there was in those tents. It was all nasty, but that was basically a prisoner-of-war camp, and that was how it was set up to be, and it was according to our doctrine, and we didn't have any new doctrine to replace it. This is how people were trained to run it.
It was also transparent. You could always see the detainees if they were in those cages, so if anything happened to them, if they were abused, it was visible to everybody. That's a protection. If you enclose them, then you can't see what's going on, and you can't see how they're being treated when they're isolated like that. They were not in isolation at that point, which was, again, more typical of a traditional prisoner-of-war setup than what we've currently got. So that's what I arrived to and when I became the staff judge advocate for the detention task force.
The intelligence task force has a different agenda. We're supposed to protect the prisoners. We're supposed to preserve their pocket trash, for example, for forensic purposes in the event anyone ever goes to trial. It's very much a law enforcement scenario. The intel people come along, and they're there to quickly exploit intelligence. They're not concerned about the forensics, whether evidence is properly preserved or chain of custody is done or any of those things, because they want quick intel, and that's it. That's what they're coming for.
So there was inherent conflict between the two. We didn't have any replacement doctrine, and we didn't know what "Geneva-like" meant, so we went with what we had, which was Geneva.
When you want rules of the road, who do you ask? Where do you go?
You go up the chain of command. We go through our command, through our legal command up to the staff judge advocate at SOUTHCOM [Southern Command], which was the higher command for anything going on in Cuba, and from there up to the Pentagon, asking for help.
What do you say when you want help?
"Help." (Laughs.) [We say:] We have irreconcilable differences with the intel folks and the intel JAG. We can't reach agreement on anything. Come mediate. Give us some guidance. Tell us if things have changed, what they've changed to, because we're in a very amorphous area.
At high levels, general officers are trained to handle ambiguity, but we're down at the grunt level. We've got specialists and privates standing guard duty over these guys who need guidance as to what's permissible, to what extent can they be used by the intel people, or co-opted, as it were. Or should they not be at all? According to our doctrine, they should not be. Tell us. And we wait.
And rather than just wait and not tell them anything, then we go back to what we know, what our doctrine is and hasn't been changed. And so we told our guards that they were not to cooperate directly with the intel people. In other words, if you see something, you report it, but you don't go looking for it, and you don't do things for the interrogators, because you're working to secure the safety and well-being of these prisoners in the event they're ever brought to trial. …
What do the intel folks want? What's the difference of opinion? What are the big dividing things?
They have their social scientists with them, and they want to try things that involve taking the prisoners away from our direct control and supervision. That's not to say they want to do anything wild with them, but they don't want to do it with our oversight.
And they think you're impeding or slowing down or mollycoddling these guys.
Well, ultimately the mollycoddling stuff comes out, especially when it's leaked out of DoD and concerning Gen. Baccus as a way of painting him.
When he was later essentially relieved at Gitmo, there were press [stories] to the effect that he had been soft on the prisoners, which was the furthest thing from the truth. He had treated them exactly how they were supposed to be treated. He checked with me frequently, several times a day, on all aspects of detention, and he followed my advice. He got himself in trouble for following his lawyer's advice on many things.
One of the sticking points with us and the intel was the Red Cross. The Red Cross had been invited in by SOUTHCOM's JAG initially because we were running a traditional prisoner-of-war operation. And Red Cross had to come in and register the people and see them, and I guess their fundamental principle was that of confidentiality, [to] be able to talk freely with detainees to determine if there were issues in their treatment that were prohibited.
And the Red Cross understood that the operation that we were running was different than World War II. They knew that some of the aspects of the Geneva Conventions did not make a good fit. They were not outraged that we had set up a camp in Guantanamo, for example, even though the conventions describe it as a grave breach if you remove people from the theater of operations and you take them away. That was in response to how many prisoners were held in the United States and other places during World War II. They did realize that in many respects what we had in Guantanamo was far better than what they'd inspected in Afghanistan itself. Prisoners were far safer; they were fed. They understood it was an intelligence operation and that the gathering of intelligence was legitimate. There's never been anything that said you couldn't gather intelligence from prisoners. It's just a question of how.
But they wanted that confidentiality, and they wanted that access right away. As soon as the people arrived, they wanted to be able to register them. They wanted to be able to permit reunification with their families in the sense of allowing them to write little Red Cross letters. They had no problem with the letters being censored, being evaluated for intelligence before they ever went out. They knew that that happened and they were comfortable with it, because in the end the letters still got home and told people, "Yes, I'm alive."
And the intel people couldn't separate the Red Cross from the Taliban. They had a weird view of it. And they were unhappy with any access. When they would have high-value prisoners come in, they would want to prevent the Red Cross from knowing about them for a while. And of course that recurred in Iraq, where people were kind of ghost prisoners at Abu Ghraib.
And it's shortsighted, because ultimately it comes out that they're there, and then you've got this problem: "Well, you didn't tell the Red Cross they were there, and that violates the agreement we have when we invite the Red Cross in."
We've talked to FBI people who not only were there, but some who helped write their protocol. And they, of course, are very clear about their style of approach to matters like this -- the rapport building, the slow gathering of information for building a case and gathering material that can actually be brought into a courtroom. I take it that was at great odds with the intelligence imperatives as well.
Well, the intel folks had no patience. … The intel people either were under great pressure to produce results or thought they were under great pressure to produce results immediately, and so they wanted a quicker route to the information.
And the definition of a quicker route is?
Well, I don't know. (Laughs.) They just wanted quicker results, but how they went about doing it would not be that slow, deliberate process that the FBI prescribe to.
What would it be?
You would have to talk their social scientists about the sorts of things that they thought that they could do to get quick and reliable results. If you talk to me as a criminal lawyer, the more coercive your tactics, the less reliable your results. That's our history. We've got a Fifth Amendment in the Constitution because of a history of believing that coercive production of statements results in unreliable statements.
And once it happens, I gather you can't put the toothpaste back in the tube. You can't go back to somebody and say, "Now I'm a prosecutor, and I'd like to begin to gather evidence to make a case against you"?
Well, yeah. Once it's determined that the statement's not reliable because it was a product of coercion or worse, you can't use it ethically as a prosecutor, and anything that's derived from it is tainted or suspect, certainly within our constitutional law, it's known as the fruit of the poisonous tree, and they can't be used in a case.
[Would you] battle it out prisoner by prisoner? How heated would it get?
Well, it was fairly heated. I did not get along at all. I despised the JAG for Gen. [Michael E.] Dunlavey. [Editor's note: Gen. Dunlavey ran the intelligence task force at Guantanamo.] We had bitter, bitter fights, and we frequently bothered SOUTHCOM with our inability to get along.
Oh, they were hateful arguments. I don't know that we descended to name-calling, but we were hostile... Dunlavey's a lawyer, too. He's a judge, state judge. I had conflicts with him. He told me I was his biggest pain in the ass on the island.
Well, I took it as a compliment -- (laughs) -- because I thought I was doing my job. If I was making people angry, I was probably doing right. And I certainly had him angry.
What was at stake for you?
I'm a reservist. When all is said and done, I go back to a pretty good civilian job, so I didn't view it as my career being at stake. But I thought there was a right and wrong principle involved, and I wanted to be on the right side.
What was the principle?
Well, rule of law. We helped promulgate the Geneva Conventions for the world. We are the proponent of due process everywhere, and to abandon or squander that kind of idea in the face of a single or a series of attacks on us struck me as the quickest way to allow the terrorists to win, because when you give up due process, you don't necessarily ever get it back again later. It was very hard to get.
I know what these fellows would say. [They would] grant you all of that in a perfect world, that's true, but we're talking ticking time bombs here. … And by God, as president of the United States, on my watch, another set of buildings isn't going to fall. And if I've got to break some eggs to make some omelets, I'm going to break some eggs. … And it's guys like you that are in the way.
Well, you've got to run me over then, because I'm not likely to budge, and most of the people who [were] trained like I was, I don't think they budged either, so I guess we are impediments, but then, that's what lawyers are supposed to be. They're supposed to make people slow down and think about it first. Yeah, you've got a ticking time bomb, but who wants to live in an oppressive society as a result of it?
The president has a responsibility for the security of the nation, but if you're overly concerned with security, then you've squandered liberty. That's hardly my original idea. I think [Benjamin] Franklin, among others, has talked about that. We don't give up our hard-won constitutional freedoms.
At some moment, Gen. [Jack] Keane from the Pentagon comes down and takes a visit through Gitmo and says, "Well, we're not getting much good intelligence." … Do you agree with that analysis that not a lot of good intelligence was coming out of Gitmo in the early going?
Yeah. I can understand why a lot of people were scraped up from the battlefield and brought to Gitmo, because we didn't know what we had, but we didn't have any real mechanisms to sort them out. And I think once we started sorting them out, we'd already stated publicly that we had "the worst of the worst." And it was a little hard to go against that and say, well, maybe some of them aren't quite the worst of the worst, and some of them are just the slowest guys off the battlefield.
So we had a bunch of people there that had little or no intelligence value. We lost sight of the fact that we intervened in what was then an ongoing civil war and that many of the Taliban who were fighting the Northern Alliance, while they certainly stood for things we don't stand for, were not necessarily opposed to us either. And they got caught up in that, too. I distinguish them from the hard-line Al Qaeda or the Taliban sympathizers who harbored the Al Qaeda, but they were all there in that big pot. They got brought over.
Then we also had a decision-making process for releasing these people, which was just byzantine and cumbersome. There must have been 16 or 17 different organizations which had to say "yea" before someone could be released. And no one wanted to be the one who said "yea" in case that person did turn out to be an Al Qaeda and he went and did something atrocious once you let him go. So they were very risk-averse, and it was just easier to keep them there. But we're stuck years later with a goodly number of them still there. It was not well-planned, I guess would be a fair criticism.
[How does the Pentagon decide to resolve the conflicts between the detention and intelligence task forces?]
Well, certainly the response was to merge the two task forces into one and make detention subordinate to the intel operation, and then bring in Gen. [Geoffrey D.] Miller ultimately to replace Dunlavey. …
When I read the FBI memos or I read the Schmidt report and I read about dogs and nudity and humiliation ... temperature control, sleep deprivation -- how much, if any, of that was going on when you were there?
... I never saw any abuse. Occasionally MPs [military police] would have to go in and subdue an unruly prisoner. I would review the films because all of those were filmed, the QRFs, the quick reaction forces, that would go in. And then I would relate to the Red Cross what I had seen, and they basically took my word for what had happened, because they would talk to prisoners, and they would get this tale of abuse, and they'd compare it with what I'd tell them I saw in the video. And they were satisfied with that as an explanation.
But if you get rid of the warden, or neutralize him, then you lose that check. And that was the concern about merging the task forces.
And that's what happened, in fact.
That certainly appears to be what happened.
Miller comes, and the wardens are, for lack of any better word, marginalized, and the intel is dominant. You know that place. Should Miller have known if things were happening that were untoward?
If he's in command, he's responsible. That's what command is, is responsibility. And does he have an obligation to show his face at odd times? I think so. I know it had worked for us, for Gen. Baccus. You can't leave it to other people to decide what's appropriate and turn a blind eye. In law we know that willful blindness is the equivalent of knowledge. And in an ambiguous situation like that, you've got to be in it all the time.
But we've learned from the Schmidt report -- nudity, dogs, many of the things that sound familiar to us of things that happened at Abu Ghraib. If those things happened -- and apparently they did -- at Gitmo under Gen. Miller, he should or could have known about them, correct?
He should have. I would have to agree. I would think he would have to be out there to see that if those things were not proper, they didn't happen.
How did they happen? Why did they happen?
Well, the "why" is I think because someone thought that that particular technique or tactic could produce intelligence that nothing else before could produce. That would be the only motivation I would think at Gitmo. You might have had some soldiers at Abu Ghraib who, of their own nature, were willing to torture or abuse detainees, but I don't think that was the situation at Gitmo, and that would have to be an intentional, planned, thought-out technique in order to develop intelligence, because things that had previously been tried simply hadn't worked.
Did you hear about them?
We'd hear rumors about them, I think.
We would hear from our MPs just the scuttlebutt that they would hear from maybe talking to some of the intel people, the lower intel people about things that they were considering. And they'd report back to us. It would make us a little more vigilant.
Well, the ideas of isolating, of turning the temperature way down, of turning the lights out, of ... sensory deprivation, for example. I had early on got my office to send me my copy of Title 18 United States Code, so I had the torture statutes there, and I advised Gen. Baccus based on those. And certain kinds of sensory deprivation are forbidden and defined as torture under our law. And I said as far he was concerned, since his name was clearly on the blame line, this was the law he had to uphold.
So anything we heard that tended to infringe on those broad definitions within Title 18 and the convention against torture, we took seriously, and [it] made us the more vigilant.
How did you feel when you read about or heard about -- about female interrogators sitting on the laps of detainees, the menstrual, the fake menstrual-blood thing, the whole sexual thing and the like?
All I could think was how stupid. We're dealing with true believers. They are ready and willing to die for what they believe in, and from the military perspective that probably means we have to kill them. And I don't have a problem with that as a soldier, but I think we deceive ourselves when we think that those sorts of techniques will bring people who are willing to die to their knees and make them confess. It will make them even less willing if they ever were to give anything up. And we degrade ourselves in the process, so it's a lose-lose situation. The only thing I could think of was how stupid. Who's thinking these things up?
... And a lot was left to people at fairly low levels to make decisions, which had huge policy implications. Instead of policy being decided up here, it was being enacted down here. And then the hope was up here that nobody'd find out. …
At some moment after the Iraq war ends and the insurgency is beginning, Gen. Miller and his staff from Gitmo are brought to Iraq in a consulting role, first to help explain or suggest ideas. When you heard about that, did that surprise you?
Yeah, it did surprise me. It did surprise me. I [didn't] think that the unique Gitmo experience would be something that could necessarily translate to any other place, especially Iraq, which we had declared to be a governed by the law of armed conflict; in other words, Geneva. So yeah, it did surprise me.
[Are you familiar with the Bybee memo, the so-called torture memo?]
I learned from the press about the Bybee memo, and it struck me as bizarre, because it defines away torture as we understood it. It's a cover-your-ass document for the behavior that's gone before to let people off the hook. But it defines away the idea of torture. Basically if you haven't killed the person, it's not torture. That makes no sense at all. It's just CYA.
You mean it's a license in a way? If you know that it exists and you know that that's all you can get tagged for, you can push the envelope then?
Well, I don't know that I'd describe it as a license, but it certainly seems to let you off the hook if you do get excessive. And I think that's what it's for. ... Intel gathering is not necessarily a neat and orderly thing, and in any operation there can be excesses. We try to restrict those excesses in war by applying the law of war and by the application of military discipline to make people accountable so that they're conscious before they commit an excess, and they're held accountable if they do.
That definition seems to take away the accountability part. It doesn't necessarily encourage it, but it certainly makes it troubling, because if there's no accountability, then people may on their own initiative go ahead and push the envelope. And still the people who have promulgated can deny that they gave them a license -- maybe righteously deny it, but it still takes away the accountability.
What's your reading of the results of commissions examining the excesses at Abu Ghraib? What will change because of them?
Well, when things like Abu Ghraib happen, individuals may do the discrete, obnoxious acts, but the failure is in the command climate; it's in the leadership. I'm in the Army War College now as a correspondence student, and one of the topics that we will explore is how would you create a command climate so that Abu Ghraib would not happen, so that the upcoming generations of senior army officers will confront this and think about it so it won't happen. So I think at high levels we already know that this a leadership failure and a leadership problem that has to be addressed, because there was a climate that allowed it to happen. And that climate is the responsibility of the commander.
How would you describe the climate?
I think it approaches that willful blindness that I described earlier, that turning a blind eye to what could go on instead of actively pursuing, patrolling to prevent what might happen. Brig. Gen. [Janis] Karpinski certainly had responsibility for failing to be out there, and I think she was properly held accountable. I don't think she was singled out because she was a reservist or a female. I think she dropped the ball. She had the same responsibility that Baccus did -- to go out and show his face in the cells at night at 2:00 in the morning and know exactly what was going on there.
I don't think the reports have fleshed out the command responsibility for those higher than her. They're probably looking at it, but we've not seen a report, which says yes, this was the failure at this high level, which allowed the climate to occur. In the War College we're looking at it. ...