Fay Report Annex: DOD Interview re: Conditions at Abu Ghraib Detention Facility

Interviewee was assigned to AG around January 2004 as the Operational Lawyer to the Combined Joint Task Force 7 staff.
Described the development of the CJTF-7 policy to regulate interrogation operations, described understanding of Jan 2003 ICRC report as "unconfirmed reports based solely on anecdotes obtained directly from interviews between the ICRC and detainees."

Wednesday, March 2, 2005

I arrived in Kuwait on the 3 rd week of July 03 and immediately deployed into Baghdad, Iraq. My duties the firs ks were to serve as an operational lawyer on the CJTF-SA, CJTF-7 SJA. After three weeks,
7 Staff. 1 worked fort
USN) redeployed to Germany
the Chief of Operational Law i pera Iona • w or CJTF-7. I remained in this
and I assumed the duties of Chie anuaryUSA, of III Corps assumed the billet until t CJTF-
,c ory to the CPA to work with 7 (fwd) on some issues we had worked on previously for the purpose of continuity, and to ease the transition to III Corps. I first began dealing with detention and interrogation operations in the very beginning of my tour when we drafted FRAGOs giving CJTF-level guidance to all units regarding detainees. It was the opinion of our office that all detainees must be treated humanely in accordance with international law at all times and specifically, the Geneva Conventions. We addressed all .detention and interrogation
issues with this founding principle. LTG SANCHEZ, USA, Commanding General, CJTF-7 repeatedly impressed upon his staff and subordinate commands both verbally and . in writing, his desire for treatment of all Iraqis with dignity and respect. worked directly with the CG in developine these written orders and I participated in their drafting. To my knowledee, the only policies approved by the CG with regard to detainees were the ones published by our office, specifically the CJTF-7 Interrogation and Counter-Resistance Policy and various "Dignity and Respect" memos, which were published by FRAGO. Though I was not present in any meeting with the CG wherein interrogation techniques were discussed, I never heard of him giving permission for use of any particular technique. Such guidance would have been contrary to CJTF-7 policy
as we created it, and his commander's intent, as I understood it.
When MG MILLER, USA visited Iraq from Guantanamo Bay (GTMO) we
focused on preparing an interrogation policy. I believe it was generally understood that
MG MILLER and his staff had a great deal of experience from GTMO and had come to
r operational level Intelligence from detainees through interroeation.
members of the GTMO team, myself, and others met to discuss the
creation of a standard CJTF-7 policy for use in Iraq. MG MILLER's staff suggested that
we needed a theater-level policy, and though I did not initially agree with that idea, I
came to believe that the policy was necessary to regularize interrogation practices across
the Iraq Theater. I initially felt that the published references (infra) and intelligence
leadership would serve sufficiently to guide the process, and that lawyers could possibly
bring the unintended consequence of unnecessary restrictions to the interrogations. After
discussing the matter at length, however. we decided that the policy was necessary to
regulate unit-level policies and ensure that policies across Iraq, including those in units
coming in from Afghanistan and other places comported with our baseline need to satisfy
the Geneva Conventions. In preparing the policy drafts, we gathered all documentation we could locate on interrogation and counter-resistance, including FM 34-52, GTMO and CJTF-180 policies,
04. I then moved from Camp
consecutive or not. We felt this was a reasonable time for an interrogation under segregation to continue with supervision below the level of the CG. After 30 days, we felt that such segregation should require the CG's involvement and approval.
• Questions have been raised as to the security classification of the policy. The reason for classifying the interrogation documents as SECRET was that other interrogation policies we viewed were classified SECRET, and I believed that if the information were leaked, it could severely undermine the interrogation efforts in the field. This classification was selected only for reasons of national security, and in no way hid the contents of the policy from CJTF-7 personnel who had the need to know it. I recall two interrogation and counter-resistance policies being approved and signed by the CG. The first was rescinded about 28 days after its submission to CENTCOM and superseded by the later policy. We sent the first policy to CENTCOM for review with the intent to implement the policy upon approval. I believe it was dated
14 September 2003. Lawyers at CENTCOM expressed reservation that some of the techniques could violate the GC depending on the manner of implementation. After reviewing the CENTCOM input, we changed our focus to the approach-based model
described above. Our desire was to satisfy the need for effective interrogations while remaining within the bounds of international law and promoting humane treatment of and reissued our final
detainees. After modifying the policy, we rescinded the original policy dated, by my recollection, October 12 of 2003. I do not believe that the original policy was ever officially issued, but since it had been signed, we thought it should be rescinded as confusion could have resulted. As far as the staffing methods used for these documents, I do not recall which staffing method was used for each particular draft. Moreover, most of the drafts did not leave our office, as the changes were the result of internal decision-making. The normal method for staffing drafts outside of the office was
that the Current Operations' Lawyer Would place the document in an electronic folder for
staffing to CJTF-7 staff and supported units through LNOs. The staff would then go to
the folder and review it and make changes and comments. Some documents,•especially sensitive ones, may have been staffed in "hard-copy"—placing a cover sheet on them and forwarding to the units for staffing.
The Inte o ation Rules of Engagement (IROE) is a document that I have learned was prepared by USA. This is a document that I do not recall seeing prior I think, that I would have recalled the
to my interview wit the commission. document, because IROE is a misnomer; it is not the correct use of terminology with respect to detainees. The CJTF-7 policy does not address "engagement" of detainees during interroeation, as they are protected persons. After seeing the slide, however I elieve t at it is a well-intended effort at producing a "layman's training aid" thallat
eated for her troops to tea h them what as allowable under the CJTF-7 policy. 1 did not normal! work with on interrogation matters. I worked with , USA, a lawyer from 205 th MI in the drafting of the CJTF-7
policy and occasionally answered questions from the field through him on interrogation matters. In all cases, I advised him to advise the intelligence / interrogation leadership to use comprehensive interrogation plans and to formally request any deviations from policy through the chain of command and the C2 and SJA as discussed above. The only requests for deviation that I saw were requests to continue segregation past 30 days.
The Third and Fourth Geneva Conventions and associated commentaries, Directives, FM 27-10, and other regulations relating to EPWs and civilian internees. We also considered other international law even when not binding, e.g., the Geneva Protocols. We looked at the manuals, various policies and other regulations with an eye toward gaining consistency in interrogation operations. It is important to note that while we considered the policy in use at GTMO, and used the general format of their policy for the ptirpose of organization of our own, we knew that we would be guided neither in content nor legal analysis by the GTMO policy. We felt that our situation was fundamentally different, and that as a force engaged in an international armed conflict, the Geneva Conventions would prevent any such guidance. Instead we attempted to evaluate all available techniques and approaches we found in the various policies and manuals, applying limits and safeguards to remain within the bounds of international law
and to promote humane treatment. After gathering information, we began the process of constructing drafts of the policy for discussion and staffing. There are various drafts in existence that contain changes to the policy as a result of our internal consultations, the staffing process and our interaction with supported commands. The many differences in the drafts, including whether to include EPWs or only Security Internees within the policy, are the result of our discussions and input from units and staff members in the staffing process. To my knowledge, these drafts were not issued to units for their use, though some units may have received electronic copies for critique during staffing. We also received some limited guidance from CENTCOM after we submitted the first signed policy to them that we intended to implement. In initial drafts, we focused on inclusion, exclusion and limiting some individual techniques in an effort to have the policy comport with international law. in later drafts, (after review by CENTCOM SJA's office) it became evident that we should rely more heavily on FM 34-52 and focus on interrogation approaches as described in that manual while implementing necessary safeguards designed to promote humane implementation of the approaches. Given the fact that interrogation approaches described in the manual could combine techniques, and those techniques could have differing effects on different detainees based on implementation, duration. age and health of the detainee, etc, supervision and intelligence leadership involvement in the creation of individual interrogation plans became a more important focus. Comprehensive individual interrogation plans had to be supervised and approved at the unit level by intelligence leadership. In short, our aim was to allow the interrogator to use the approaches available in the manuals, tailoring the techniques that best suited the detainee under interrogation -­under direct supervision of intelligence leadership --while remaining within the bounds of the law. We selected the approaches in FM 34-52 because the manual had been previously legally reviewed, and offered approaches which could be used on EPWs, the category of detainee with the highest protections under the law. Any deviation from the approaches in the policy had to be approved by the CG. By our policy, this approval would have had to be staffed through the CJTF-7 C2 and SJA prior to CU approval. We viewed segregation from fellow detainees not as a technique, but as a necessary part of any interrogation. Understanding that while necessary, segregation could be viewed as inhumane if lengthy, we installed a 30 day safeguard in the policy, with the need for CG's approval to continue segregation of any security internee past 30 days—whether
Though I was not involved in the legal administration of detention operations at Abu Ghraib, I remember reading one or two ICRC reports in the January 2003 timeframe. The ICRC reports included allegations of mistreatment of Iraqis both at the point of detention and in internment. It was my understanding that these were unconfirmed reports based solely on anecdotes obtained directly from interviews between the ICRC and detainees. These reports appeared quite exaggerated and hyperbolic, citing lawful uses of force as violations, including pointing weapons at persons during capture operations, segregating suspected insurgents from their family members during questioning, or using force to prevent detainee escape. I recall forwarding an ICRC report to the III Corps SJA (detention ops) for response.
(AUS) a Coalition attorney working in my section, drafted or edited a scpara e
response to Mn ICRC report on behalf of BG KARPINSKI's office. I edited that
response. I was not present during any ICRC visit to Abu Ghraib. I did,.however, work directly with the ICRC, coordinating access and handling all ICRC requests regarding
I do remember that authority to command forces at Abu Ghraib was
Saddam Hussein. shifted to COL PAPPAS in response to attacks at that facility, but I do not recall any approval authority being delegated to COL PAPPAS regarding interrogation approaches or policy. Such delegation would have been contrary to the CJTF-7 Interrogation and
Counter-Resistance policy and my understanding of the CG's intent with respect to
detainee treatment.
This statement is being provided to the FAY commission in response to their questioning, and for the purpose of their investigation. It is intended to replace the draft statement I swear that the
prepared by the commission on my behalf. which contained errors.
contents of this statement are true to the best of my knowledge and recollection.