“If the detainee dies you’re doing it wrong.”

One of the most quotable phrases coming out of Bush’s Global War on Terrorism now appears to be highly questionable. Then-CIA lawyer Jonathan Fredman was quoted by Senator Carl Levin, Chair of the Senate Armed Services Committee, as having said that the standard of detainee treatment during interrogations was “basically subject to perception. If the detainee dies you’re doing it wrong.”

This quote continues to be used in articles and books, but reporting by Stuart Taylor, Jr. (no relation) in the National Journal and by Benjamin Wittes of Lawfare sheds light on the shaky ground on which it rests. First, Fredman has denied the veracity of the quote for about as long as it has been public. The quote comes from the minutes of a staff meeting at Guantanamo in which Fredman was asked about the legal limits placed on interrogation by the federal anti-torture statute. However, much of the minutes are of questionable reliability, and in some cases patently absurd (for example, a barely understandable quote that appears to claim that Turkey considers any interrogation that “results in the subject betraying his comrades” to be torture).

It is important to note, however, that not even Fredman himself denies all of the statements attributed to him in the minutes. Perhaps the most telling of the statements which he  apparently has not denied include his reference to standard set by the Office of Legal Council, that the torture statute only bars physical pain so severe that it may cause permanent damage to major organs, or mental pain so severe that it may permanently alter the personality or senses of the detainee.

So, whatever exculpatory effect the questionability of the oft-quoted statement may have, it is important that these minutes, like any internal document that is not vetted and edited, be read with a critical eye.

Paul Taylor, Senior Research Fellow
Center for Policy & Research

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About paulwtaylor

Paul is a Senior Fellow at the Center for Policy & Research and an alumnus of Seton Hall Law School and the Whitehead School of Diplomacy and International Relations. Having obtained a joint-degree in law and international relations, he has studied international security, causes of war, national security law, and international law. Additionally, Paul is a veteran of the Army’s 82nd Airborne Division, with deployments to both Afghanistan and to Iraq, and has worked at the International Criminal Tribunal for Rwanda and Global Action to Prevent War. He has also participated in habeas litigation for Guantanamo Bay detainees and investigated various government policies and practices. In addition to his duties as a member of the editorial staff of TransparentPolicy.org, Paul now works at Cydecor, Inc., a defense contractor focused on naval irregular and expeditionary warfare. Paul's research and writing focuses on targeted killing, direct action, drones, and the automation of warfare.

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