"Torture" in the Dock

Policy Review, Dec 2008/Jan 2009 by Rosenthal, John

- SCENE 1 : Frankfurt, Germany, ? October 2002, early morning

IN THE FRANKFURT police headquarters, the atmosphere is tense. Deputy Police Chief Wolfgang Daschner is losing patience. On the previous day, his officers arrested one Magnus Gägen, a 2 7 -year-old law student. Gäfgen is suspected of having kidnapped 1 1 -year-old Jakob von Metzler, son of the banker Friedrich von Metzler. Two days earlier, Gäfgen had personally collected a 1 -million-euro ransom payment. But there is no sign of the boy and Gäfgen has refused to give police interrogators accurate information about his whereabouts. A police psychologist, observing the questioning, describes Gäfgen's responses as a "pack of lies" [Lügengebäude]. Deputy Police Chief Daschner fears that Jakob's life may be in danger. In a memorandum, he writes: "We need to ascertain without delay where the boy is being held. While respecting the principle of proportionality, the police have an obligation to take all measures in their power to save the child's life."

Daschner decides to act. He dispatches police inspector Ortwin Ennigkeit to the office in which Gäfgen is being held for interrogation. Ennigkeit's assignment: to make Gäfgen talk - if necessary by threat of torture. Indeed, Daschner has resolved not only to threaten Gäfgen with pain, but to carry out the threat if his prisoner is not otherwise forthcoming. A doctor has been found to supervise the proceedings.

In the interrogation room, Ennigkeit tells Gäfgen that a "special officer" is on his way. If Gäfgen does not tell Ennigkeit where the boy is, the "special officer" will "make him feel pain that he will not forget." On Gäfgen's own account, the formula is still more menacing: the officer "will make you feel pain like you have never felt before." "Nobody can help you here," Ennigkeit tells him, according to Gäfgen's testimony. "We can do whatever we want with you." On Gäfgen's account, moreover, Ennigkeit already begins to rough him up: shaking him so violently that his head bangs against the wall and hitting him in the chest hard enough to leave a bruise over his collarbone. Gäfgen's testimony is consistent with the tenor of Daschner's instructions, which, on Daschner's own admission, called for the "use of direct force" [Anwendung unmittelbaren Zwangs].

In any case, whether the mere threat of pain has been sufficient or the latter has had to be supplemented by the "use of direct force," within minutes of Ennigkeit's entering the interrogation room Gäfgen talks. He tells Ennigkeit where Jakob is to be found. Police rush to the location and find the boy dead, his corpse wrapped in plastic and submerged under a wooden jetty in a pond.1

- Scene z: Guantánamo Bay Frison Camp, Cuba, ten days hter

The atmosphere in Joint Task Force 170 is tense. The task force has been set up to obtain intelligence from detainees, but the effort is lagging and army interrogators are losing patience. They have discovered that one of the detainees appears to have been directly involved in the 9/1 1 plot. Mohammed al-Qahtani attempted to enter the United States in early August zoo i, but was turned back by immigration officers in Orlando, Florida. Telephone intercepts of conversations of 9/1 1 facilitator Mustafa alHawsawi indicate that al-Qahtani was slated to serve as the missing "twentieth hijacker" on September 1 1 . Plot leader Mohammed Atta is known to have been at Orlando International Airport on the day of al-Qahtani's arrival, presumably to meet him. Al-Qahtani was sent back to his native Saudi Arabia and then traveled to Afghanistan. In mid-December, two months after the start of Operation Enduring Freedom, he was taken prisoner on the Pakistani border along with ? 9 other suspected al Qaeda members apparently fleeing the Battle of Tora Bora.

In early October 2002, the questioning of al-Qahtani has been going nowhere. Interrogators and staff psychologists are convinced that he is lying: repeating prefabricated cover stories, no matter how implausible, as required by al Qaeda security protocols. He insists, for example, that he traveled to the United States to import used cars and that he was in Afghanistan merely to purchase falcons.

The first anniversary of the 9/1 1 attacks has only just passed. A spike in intelligence has American officials on high alert. On October 8, Bin Laden deputy Ayman al-Zawahiri releases an audio statement threatening new attacks against America and American allies. The commanders of jtf 170 decide they need to act. On October 11, Major General Michael E. Dunlavey sends a memo to U.S. Army Southern Command requesting authorization to use more aggressive interrogation techniques with the detainees. The request gains still greater urgency on the very next day as al Qaeda makes good on its threats, killing over 200 people in multiple bombings on the Indonesian resort island of Bali. Dunlavey's request will be endorsed by southcom and sent up the line to Secretary of Defense Donald Rumsfeld.

The request and the Department of Defense's response to it have pride of place in the media-driven mythology of what have come to be known as the "torture memos." The techniques proposed by jtf 170 include several milder "Category I" and "Category II" techniques, such as yelling at a detainee (Category I), requiring a detainee to stand for a maximum of four hours (Category ?), and "forced grooming" (i.e. shaving a detainee's beard against his will - likewise Category II). All these techniques will be approved. Included among the harshest "Category LTI" techniques, however; jtf 170 requests authorization to threaten detainees with "painful consequences" if they fail to cooperate. As it so happens, this is precisely the method used by German police inspector Ortwin Ennigkeit a mere ten days earlier to obtain the cooperation of Magnus Gäfgen. Following the advice of Department of Defense general counsel William J. Haynes, the request for authorization of this method is . . . refused.2