An email, which includes two forwarded emails, between two FBI officials regarding detainee abuse at Guantanamo Bay. The forwarded emails discuss the possible procedural paths to take in a situation where six reports from FBI personnel who were present at facility may or may not be violations of the Uniform Code of Military Justice. The redacted author of the first forwarded email insists on obtaining a blanket declination on the agents before presenting the results to the Department of Defense. This is one of the author's three steps in obtaining immunity for the six agents who made the report. The author of the second forwarded email, Toni M. Fogle, generally agrees with the planning in the email.
Message
FOGLE, TONI M. (INSD) (FBI)
From: FOGLE, TONI M. (INSD) (FBI)
Sent: Tuesday, October 05, 2004 3:35 PM
To: MERSHON, MARK J. (SF)(FBI)
Subject: FW: Detainee abuse
UNCLASSIFIED
NON-RECORD
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ALL INFORlIATION NT
HERE IN IS CL SI FI
DATE 03- 12- 2009 BY 65179 D~lli
l
Another old email I located re the GTMO situation - you were asking the other day for the history as I know it.
-----Original Message-----
From: FOGLE/ TONI M. (INSD) (FBI)
~~t; Wednesday, Auaustl&~s2g)0~F~~r PM
Subject: RE: Detainee abuse
UNCLASSIFIED
NON-RECORD
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I agree with your position. Although no one has shared specific facts with me, I can see where an agent may
be complicit in an offense if he/she allowed "something" to occur in his/her presence. I think a presentation must
be made to DOJ of all the cases for declination (I'm not sure DOJ would even consider a blanket declination with ' .
a sampling of 6) - otherwise they should allow the interviewees to provide information voluntarily. [If they want to
allow the invocation of Garity, they could always force the interviews pre-declination - but that is not being fair to
any lnvolved.]
As for whether or not the disciplinary process is invoked - the DO and GC have to do the balancing at a higher,
level than us. They have the authority to not report it to us, If it is reported to us -- we follow protocol without
exception, otherwise we can no longer charge anyone with "failure to report."
If the Office of Inspections is handling, we should disengage, T>
-----Original Message-----
From:1 ICINSD) (FBI)
Sent: Wednesday, August 25, 2004 12:16 PM
To: FOGLE, TONI M. (INSD) (FBI)
Subject: Detainee abuse
UNCLASSIFIED
NON-RECORD
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As you knowJ Iwas given a project by McCraW to canvass all tdy agents to GITMO to
determine rour pe,Ple witnessed, or participated in any abuse of detainees held at GITMO. W/o liS'
knowledge emailed approx. 560 agents and asked them to come forward w/anything they
witnessed that cou d be construed to be abuse , I don't know what the language of the email was, but b 6
approx. 26 positive responses were recelved.l land Val Caproni went through the 26 responses and b7C
after consultation w/DOD they were able to determine that most were not violations of DOD rules and regs
pertaining to Tterrogjtion procedures. I [was left with 6 responses that mayor may not be violations
of the UCMJ. stated that he is certain that in all the responses, no agent was the alleged abuser.
They may have witnessed or seen the aftermath of the alleged-abuse. Now they want to interview the
agents that gave positive responses, via 302 and provide a final package to DOD; however, they want to
ensure the agents that no action will be taken against them for not reporting the alleged abuse.
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I met wDon Monday and told him that I could not give him a guarantee that we would not
open investigations, based on the contents of the emails and EGs that he'd received as a result of his
canvass. I explained the process to him. First and foremost, their il potentij' criminal liability and if you
passthat test there is the IG and then potential admin inquiries, etc was concerned that the FBI
would now go back and start admin inquiries against people who volunteered this info. Bottom line, I was
unable to give him the assurances he wanted.
Tuesday afternoon, I attended a meeting w~ IVai C~nd Mary Rook to try to move this thing
forward. We rehashed many of the same arguments tha~made on Monday. I stated that
absolutelyno interviews can take place wloobtaining a declination from DOJ. That is the first hurdle that
must be cleared. Val stated that if an agent did witness abuse and did not report it, that she does not thing
that is a crime. My argument was t~at it may not be a crime, but I'd like to know for certain before we start
interviewing agents. We went back and forth for some time, but below is what they would like to do.
pending your appr~val . .
1. Present the 6 incidents in question to DOJ and obtain a blanket declination on the agents. '
2. Once declination obtained. have the Director/DO state that no admin inquiries (failure to report) will be
opened wlrespect to agents that came forward with the info. (6 alleged incidents) This action would be
similar to what took place with the memen toslsouvenirs in the WTC Tiffany Globe case:
3. Once "immunity" has been grantedC]Will conduct interviews and provide results to DOD.
I told them that if this comes to liS to be handled we will have to follow our protocols and refer to the IG.
They don't want to do that because the IG could make this into another Tiffany Globe matter and they need
to knowthis information now to pass onto DOD. I told them that if it comes to us, we have no choice but to
refer it. Their argument is that the FBI's need to know this information outweighs any admin inquiry for
~~~~~ .
I told them if DOJ declines and the DO agrees to this course of action, then INSD should handle this as an
audit function and keep it on the 7th floor. If it comes to us. we have no choice but to handle in accordance
w/our policy and procedures. This is the way they would like to handle. I told them I could not give them
the go ahead wId running it past you. This is a mess and should have been handled differently from the
start. but this is where we are now.
Your thouqhts,
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UNCLASSIFIED
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