“As a general deal,” President Barack Obama said Tuesday about Bush administration officials who shaped the post-9/11 interrogation and detention regime, “I think that we should be looking forward and not backwards.” But it might be hard to determine the difference. A former top lawyer to the CIA’s Counterterrorist Center identified in a Senate report as a key figure in the spread of abusive interrogation practices is still an active CIA official, working at the office of the U.S.’s intelligence chief, officials confirmed Wednesday.
“Jonathan Fredman works at [the Office of the Director of National Intelligence],” said Michael Birmingham, a spokesman for the office. Fredman is the subject of a crucial point in the committee’s report, declassified on Tuesday night, which details a 2002 discussion by Fredman of interrogation techniques approved for CIA usage by the Justice Department’s Office of Legal Counsel with officials at Guantanamo Bay, after which Guantanamo officials recommended and mostly acquired their usage from the secretary of defense. Minutes from that meeting quoted in the report describe Fredman as saying extreme techniques, like threatening to kill detainees, “should be handled on a case by case basis.”
Fredman, through a CIA spokesman, strenuously denies making such statements, which the spokesman said were a “gross mischaracterization” of his views. The committee just as strenuously backs the account it provided in its report.
Civil libertarians nevertheless expressed alarm. “If you really want to end torture, as Obama says he does, he has to get officials who were deeply involved in the torture program from the federal government,” said Michael Ratner, president of the Center for Constitutional Rights.
Fredman, 50, joined the CIA in 1987. He served at the agency’s Counterterrorist Center, its hub for tracking and confronting organizations like al-Qaeda, from early 2001 until mid-2005, becoming its lead attorney in the spring of 2004. Birmingham declined to make Fredman available for an interview to discuss his role at Guantanamo Bay or any other issue, and further declined to discuss the Senate panel’s characterization of Fredman. Nor would Birmingham specify Fredman’s role at ODNI, citing what he called long-standing policy not to discuss non-senior officials.
In October 2002, according to the Senate report, officials at Guantanamo Bay, frustrated with the quality of intelligence resulting from U.S. military interrogations of detainees, considered a memorandum prepared by a behavioral-control team at the island prison that recommended both non-coercive “rapport building” interrogation techniques as well as more severe techniques like “sleep deprivation, withholding food, [and] isolation.” But officials were unclear what legal authority they possessed to employ the harsher techniques. Fredman visited Guantanamo Bay for an October 2, 2002 meeting with officials and offered, according to the minutes of the meeting, guidance as to what interrogation techniques the CIA was permitted to employ.
An Aug. 1, 2002 memorandum from the Justice Department’s Office of Legal Counsel, declassified on Thursday, lent a legal imprimatur for using techniques such as waterboarding, “facial slap (insult slap),” a confinement box, stress positions and “insects placed in a confinement box” on a high-level al-Qaeda detainee known as Abu Zubaydah. Like the Guantanamo behavioral-control team’s harsher methods, the CIA’s interrogation regimen emerged from consultation with officials from the U.S. military’s Survival, Evasion, Resistance and Escape program, which teaches U.S. troops to defy torture. Never in the OLC’s memo is there discussion about U.S. military officials employing these techniques, but according to the Senate report, Fredman suggested that there was no inherent reason for the military not to be able to use techniques the CIA had legal clearance to employ.
The minutes of the meeting — which the report makes clear are paraphrases and not direct quotations — say that Fredman discussed waterboarding, referred to in the minutes as the “wet towel” technique from SERE, by saying, “If a well-trained individual is used to perform this technique it can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function. It is very effective to identify phobias and use them (i.e., insects, snakes, claustrophobia).”
Fredman is described by the minutes as discussing moving detainees to avoid their exposure to the International Committee of the Red Cross. He is described as saying that the international convention against torture is “written vaguely,” making it impossible to define mental torture: “It is basically subject to perception. If the detainee dies you’re doing it wrong.” The report cites Fredman as advising against recording interrogations, since “even totally legal techniques will look ‘ugly.’” While Fredman is described as cautioning that “mock executions don’t work as well as friendly approaches,” he noted that such techniques should be “handled on a case by case basis.”
After the meeting in which Fredman attended, the chief Guantanamo legal adviser ruled that use of the more aggressive techniques could be a “violation” of the Uniform Code of Military Justice — a crime — but still recommended that use of the techniques “be approved,” adding that legal liability concerns made it “advisable to have permission or immunity in advance” from higher command. That decision led to a request for approval of those techniques from the head of interrogations at Guantanamo Bay to the regional U.S. military commander for Latin and South America operations later that month, and from there to the Pentagon. A months-long process of review directed by Defense Secretary Donald Rumsfeld led to the adoption of many aggressive techniques at Guantanamo Bay in April 2003, including stress positions, dietary manipulation, “sleep adjustment” and extended periods of isolation, all of which were outside the boundaries of the U.S. Army’s Field Manual on Interrogation, which complies with the Geneva Conventions’ guarantees of humane detainee treatment.
A Senate source who declined to speak on the record said that after the Senate first publicized the minutes of the Oct. 2, 2002 Guantanamo meeting following a hearing last June, staffers heard through an intermediary that Fredman wanted to talk to the committee. They expressed a desire to talk to Fredman through the intermediary, but heard nothing from Fredman for months. On the morning of Nov. 18, 2008, the day that the committee held a hearing to vote on the report — and a week after it issued a press release that it would be voting on the text — the committee received a five-page memo from Fredman disputing the account of his views in the minutes. By then, the source said, the text had already been finalized and delivered to members in advance of the vote. Only cosmetic changes could be included by that point, the source said.
Fredman’s friends find it hard to reconcile the man they know with the official depicted in the Senate report. “People who know him well were very surprised by that allegation” of sanguinity to torture, said Benjamin Wittes, a senior fellow at the Brookings Institution, “because it didn’t sound like anything that he would have ever said, and I’m quite confident it’s because it’s not.”
A CIA spokesman, Paul Gimigliano, objected strongly to the report’s portrayal of Fredman. “Mr. Fredman made it very clear to the Committee that the so-called meeting minutes from Guantanamo do not reflect his views,” Gimigliano told TWI. “Despite that, the report links him to statements he denies and rejects. Mr. Fredman objected to what he sees as a serious — if not gross — mischaracterization of his opinions. That’s the point. As for the document on which the Committee drew, Mr. Fredman considers it to be inaccurate, not at all what might be expected of something described as minutes of a session.”
In the Jan. 10, 2009 edition of National Journal, reporter Stuart Taylor printed a portion of Fredman’s memo to the Senate panel. Saying that he “did not say the obscene things that were falsely attributed to me” in the minutes, Fredman apparently wrote that he “emphasized that all interrogation practices and legal guidance must not be based upon anyone’s subjective perception; rather they must be based upon definitive and binding legal analysis from the Department of Justice; that DOD must ensure that its treatment of detainees is fully lawful and authorized by the military chain of command; … and that comprehensive investigations must be conducted should a detainee pass away.”
The Washington Independent was unable to obtain a copy of Fredman’s memo from either ODNI or the Senate panel. TWI has filed a Freedom of Information Act request with ODNI to acquire it.
The Senate source said that Fredman’s memo did not dispute the basic facts at issue in the committee’s report: that he went to Guantanamo Bay and attended the October 2002 meeting on behalf of the CIA; that he discussed waterboarding and other SERE-based techniques with Guantanamo officials; and that he advised Guantanamo officials on the legal basis for the use of those techniques. The source added that the Senate interviewed officials present at and familiar with the October 2002 meeting, and they confirmed for it the accuracy of the minutes’ account and tone of Fredman’s remarks.
“Obama has to rid himself of the torture conspirators, and Fredman is one of them,” said Ratner. “What are these people doing working for the federal government?”