Torture: Who Knew? An Analysis of the FBI and Department of Defense Reactions to Harsh Interrogation Methods at Guantanamo

Seton Hall Law School Legal Studies Research Paper No. 2010-35

40 Pages Posted: 20 May 2011 Last revised: 31 May 2011

See all articles by Mark Denbeaux

Mark Denbeaux

Seton Hall University, School of Law

Joshua W. Denbeaux

Denbeaux & Denbeaux

R. David Gratz

affiliation not provided to SSRN

Date Written: April 1, 2009

Abstract

This paper explores how senior ol1icials at the FBI and Department of Defense responded to the numerous reports filed by FBI agents in response to improper interrogation techniques used by Defense Department interrogators at Guantanamo Bay. This report does not attempt to present a complete picture of all interrogation techniques actually used at Guantánamo. Rather, it presents only those techniques described by FBI field agents in their own reports. The agents' reports reviewed are from three sources: (1) unsolicited reports received by senior FBI officials prior to 2004; (2) solicited reports sent to senior FBI officials in 2004 pursuant to an FBI directive; and (3) notes compiled from the Schmidt-Furlow investigation and labeled in the Schmidt Report's appendix as "Enclosures."

Therefore, this report relies entirely upon statements made by Government agents (whether FBI agents, Department of Defense employees, or civilian contractors serving as employees and agents of the Department of Defense). All of the complaints cited in this report, to the extent it is possible to discern them, describe the actions of Department of Defense interrogators as witnessed by FBI agents who were present. This report does not address any allegations that have been raised only by detainees.

Thus, this report does not attempt to document all detainee abuse during interrogation. Rather, it shows what information FBI agents in Guantánamo recorded and sent up the chain of command to headquarters. From this information, it is possible to determine what FBI headquarters and the Defense Department knew and what they did about detainee mistreatment during interrogations.

This Report’s findings include: The FBI field agents reported more than 211 abusive techniques used on detainees during interrogation by Department of Defense interrogators. The techniques include: physical harm to the genitals; forced viewings of homosexual pornography; denial of food and water; disorientation techniques such as sleep deprivation; and religious abuse such as forced baptisms. FBI field agents reported more than 34 times that such interrogation techniques produced unreliable intelligence, that such methods were counterproductive, and that any information derived through the use of such techniques was likely to be inadmissible in court. During the same time FBI personnel reported at least 14 complaints that Major General Geoffrey Miller had encouraged and permitted these abuses. On July 9, 2004, in the wake of the Abu Ghraib scandal, senior FBI officials solicited reports of detainee treatment and mistreatment from every FBI employee who had been stationed at Guantánamo. The investigation into these complaints by the FBI was completed on September 23, 2004. On December 4, 2004 senior FBI officials learned that a FOIA request made by the ACLU would likely cause the public release of agents' responses to the July 9, 2004 solicitation. On December 15, 2004 the FBI referred to the Department of Defense the 93 solicited complaints obtained by the FBI as part of its post-Abu Ghraib investigation.

The complaints referred by the FBI to the Department of Defense did not include: 118 techniques reported in the unsolicited complaints tiled before the July 9, 2004 solicitation. 4 complaints made by the field agents in response to the conduct of the Major General Geoffrey Miller, nor 3 complaints contained in emails sent by Agent Thomas Harrington to Major General Donald J. Ryder, Provost Martial of the Army. 36 complaints that the Department of Defense's techniques were counterproductive and were producing unreliable information.

On December 29, 2004, General Bantz J. Cradock commissioned Generals Furlow and Schmidt to investigate the incidents referred to the DOD by the FBI referral and to publish a report, which is referred to as the Schmidt report. It was issued in April 2005 and then amended in June 2005.

The Schmidt report omitted: All reference to the most significant abuses contained the FBI referral. All reference to the FBI complaints sent separately to Major General Ryder the Provost Marshal of the Army by Agent Thomas Harrington in July of 2004; The Schmidt's investigation, independent of the FBI, uncovered 79 additional incidents of improper interrogation techniques. which included IS allegations of sexual abuse: The Schmidt Report omitted any reference to these newly discovered, improper interrogation techniques. The Schmidt report did not include any of the 118 unsolicited complaints withheld by the FBI in its December referral to the Department of Defense.

The Schmidt Report asserts that there is "no evidence" that "torture or inhumane treatment occurred at Guantánamo, and concludes that only three (3) actions occurred in violation of "interrogation techniques authorized by Army Field Manual 34-52 and [Department of Defense] guidance." General Schmidt so testified to Congress and thereafter his report has been presented as a complete review and rebuttal of allegations of detainee abuse at Guantánamo Bay.

Keywords: torture, Guantanamo, detainees, interrogation, FBI, Federal Bureau of Investigation, Department of Defense, Seton Hall, Center for Policy and Research, Schmidt, Furlow, civilian contractors, Goeffrey Miller, Abu Ghraib, Ryder, Bantz Craddock

Suggested Citation

Denbeaux, Mark and Denbeaux, Joshua W. and Gratz, R. David, Torture: Who Knew? An Analysis of the FBI and Department of Defense Reactions to Harsh Interrogation Methods at Guantanamo (April 1, 2009). Seton Hall Law School Legal Studies Research Paper No. 2010-35. Available at SSRN: https://ssrn.com/abstract=1582665 or http://dx.doi.org/10.2139/ssrn.1582665

Mark Denbeaux (Contact Author)

Seton Hall University, School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Joshua W. Denbeaux

Denbeaux & Denbeaux ( email )

No Address Available
United States

R. David Gratz

affiliation not provided to SSRN

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