The Beaver Memo
Next consider the memorandum written for the Defense Department by LTC Diane Beaver (a JAG legal advisor at Guantanamo), on the legality of specific interrogation techniques. Like the Bybee Memo, Beaver’s was written to respond to a specific request by interrogators who were having a hard time “breaking” a high-value Al Qaeda detainee; it was then forwarded to the Pentagon.
In this case, the detainee was Mohammed Al-Kahtani (or Qahtani), one of the so-called “twentieth hijackers” who tried but failed to participate in 9/11. Kahtani was detained at Guantanamo, and in 2002 a series of requests went from Guantanamo to Washington for approval of harsh interrogation techniques.[347] Eventually, Kahtani was subjected to a wide variety of sexual humiliations, intensive sleep deprivation (20-hour-a-day interrogations for 48 out of 54 days, interrupted only when Kahtani’s pulse-rate plummeted), and months of isolation. He was shot up with three-and-a-half bags of intravenous fluid and forced to urinate on himself; leashed and made to do dog tricks; threatened with working dogs (a technique specifically approved by Defense Secretary Donald Rumsfeld, who closely followed the interrogation of Kahtani[348]); straddled by a female interrogator who taunted him about the deaths of other Al Qaeda members; made to wear a thong on his head and a bra; stripped naked in front of women; and bombarded with ear-splitting “futility music” (the Army’s term) by Metallica and Britney Spears.[349] A subsequent US Army report concluded that none of these techniques is “inhumane.”[350] (Nor is “futility music” the most bizarre Guantanamo tactic: FBI agents have reported seeing interrogators force detainees to watch homosexual porn movies.[351])Some of these techniques, including the dog threats, leading detainees around on a leash, placing women’s underwear on detainees’ heads and forced nudity, migrated to Abu Ghraib, where soldiers memorialized them in photos that soon became notorious throughout the world.
In General Randall Schmidt’s words, “Just for the lack of a camera, it would sure look like Abu Ghraib.”[352] Compelling evidence suggests that the migration resulted when the Guantanamo commander, General Geoffrey Miller, was sent to Iraq to “Gitmoize” intelligence operations there (although Miller denies it).[353] If so, the implications are enormous: it would mean that Abu Ghraib does not represent merely the spontaneous crimes of low-level sadists, but rather the unauthorized spillover of techniques deliberately exported from Guantanamo to Iraq as a high-level policy decision.[354] That would imply a direct causal pathway connecting the advice of the torture lawyers to the Abu Ghraib abuses via General Miller. (A former State Department official traces the policy back to Cheney’s then general counsel David Addington.[355])Beaver labeled her memorandum a “legal brief” on counter-resistance strategies, and a brief rather than an impartial legal analysis is indeed what she wrote. Beaver rightly observes that interrogations must meet US constitutional standards under the Eighth Amendment. To identify these standards, she analyzes the 1992 Supreme Court decision Hudson v. McMillian.9 Hudson addressed the question whether mistreatment of prisoners must cause serious injury to violate the constitutional prohibition on cruel and unusual punishment, and its answer is no: even minor injuries can violate the Eighth Amendment if guards inflict them for no good reason. (A good reason would consist of subduing a violent inmate.) Beaver’s analysis of the case virtually flips it upside down, and the message she draws from Hudson is that mistreatment is unconstitutional only if there is no “good faith legitimate governmental interest” at stake and the interrogator acted “maliciously or sadistically for the very purpose of causing harm.”[356] [357] Obviously, any interrogation technique, no matter how brutal, passes this test if the interrogator’s sole purpose is to extract intelligence. Beaver inverted a Supreme Court decision designed to broaden the protections of prisoners and read it to narrow them dramatically.
And indeed, Beaver proceeded to legitimize every proposed technique, including “the use of a wet towel to induce the misperception of suffocation” - a version of waterboarding. Oddly, Beaver adds that “The use of physical contact with the detainee... will technically constitute an assault,” but immediately goes on to “recommend that the proposed methods of interrogation be approved.”[358] In other words, her memo on the legality of interrogation techniques concludes by recommending government approval of a felony.