“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

Update to Targeted Killing Story

Yesterday, President Obama yielded to congressional demands that he release the OLC memo detailing his administration’s legal justification for the targeted killing of US citizens who they suspect are senior terrorists. This was document provided the legal basis on which the administration in 2011 targeted and killed Anwar al-Awlaki, an alleged senior leader of al Qaeda in the Arabian Peninsula, currently the most  dangerous of the various al Qaeda franchises.

While his administration had previously not been willing to even admit that such a memo existed, he has agreed to share the memo with the House and Senate intelligence committees. This was likely a move to temper opposition to the confirmation of John Brennan as Director of Central Intelligence.

Brennan has been a central figure in the Obama administration’s drone program, from being the first official to publicly acknowledge its existence to direct involvement in its administration. While a strong supporter of the drone program, he has also stated that he “would not be the director of a CIA that carries out missions that should be carried out by the U.S. military.”

Paul Taylor, Senior Research Fellow

Center for Policy & Research