Jess Bravin on Jonathan Fredman

Jess Bravin of the Wall Street Journal, the author of the recent book, The Terror Courts: Rough Justice at Guantanamo Bay, has posted the following statement on the Facebook page associated with his new book (I have taken the liberty of embedding the links Bravin supplies into his text.):

“If the detainee dies you’re doing it wrong”: THE TERROR COURTS, in-depth:

In October 2002, Special Agent Mark Fallon, deputy commander of the military commissions’ Criminal Investigation Task Force assembling cases for prosecution, received minutes of a Guantanamo staff meeting on interrogation methods. He immediately saw that some of the methods being discussed were illegal—and that meeting participants realized that too, since they discussed the need to mislead delegations of the International Committee of the Red Cross, the independent monitor of compliance with international law; the risk that videotaped interrogations could be scrutinized by courts; and the desire for “documentation to protect us” from future prosecution or punishment for misconduct. Fallon, a veteran agent with the Naval Criminal Investigative Service and former U.S. deputy marshal, alerted the investigation force legal adviser. “Comments like… ‘If the detainee dies you’re doing it wrong’… seem to stretch beyond the bounds of legal propriety,” Fallon wrote, quoting remarks the minutes attributed to a visiting CIA lawyer who took part in the meeting, Jonathan Fredman. “Someone needs to be considering how history will look back at this.”

That episode is recounted in THE TERROR COURTS (p. 93), showing how some military professionals like Fallon tried to stop the United States government from using illegal interrogation methods even before they were applied. Fallon’s judgment wasn’t 20/20 hindsight, nor was it that of an outside critic or political partisan; like participants in the interrogations meeting, Fallon was a career national security officer charged with protecting American lives and interests, and sworn to uphold the U.S. Constitution. He recognized that the conduct discussed at the meetings could undermine his specific mission at Guantanamo: obtaining justice for the victims of 9/11. Waterboarding and other methods discussed “would, in my opinion, shock the conscience of any legal body looking at using the results of the interrogations or possibly even the interrogators.” (The term “shock the conscience” refers to a legal finding that can require reduction or dismissal of criminal charges when government misconduct infects a prosecution.) “This looks like the kinds of stuff Congressional hearings are made of,” Fallon wrote. He was right; years later, the Senate Armed Services Committee investigated abuse of detainees and obtained Fallon’s memo. It, and the referenced meeting minutes, can be found on pp. 13-17 of this exhibit.

Since publication of THE TERROR COURTS, the blog LAWFARE, among others, has observed that when made aware of the meeting minutes, Fredman disputed the remarks attributed to him. In a 2008 document sent to the Senate Armed Services Committee, later disclosed under the Freedom of Information Act, Fredman writes that at the meeting, 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 the legal analysis and specific authorizations be fully documented, just as the interrogations themselves must be; and that comprehensive investigations must be conducted should a detainee pass away.” LAWFARE has posted the Fredman document, along with commentary.

As THE TERROR COURTS recounts, Fallon’s warnings were disregarded, and the consequences of doing so continue to play out in military commissions proceedings at Guantanamo.

THE TERROR COURTS cites Fallon’s email as a source, and refers to the underlying document as “minutes” of a meeting. Minutes, as opposed to transcripts, typically are summaries rather than verbatim records of proceedings, and the interrogation minutes themselves note remarks are paraphrased. Future editions of THE TERROR COURTS will note Fredman’s response.