Interrogation: Abuses

Memo to the Press: Just Shut Up About Jonathan Fredman

By Benjamin Wittes
Sunday, March 31, 2013, 7:59 PM

The quotation is apparently too sexy to resist---too sexy even to Google its speaker's name before running with it. A single Google search would, after all, yield this article by Stuart Taylor Jr. in National Journal---an article that should put any journalist on notice that the quotation by a career CIA lawyer named Jonathan Fredman is sketchy:

"It is basically subject to perception. If the detainee dies you're doing it wrong."

This was perhaps the most chillingly outrageous, widely quoted statement by a government official to be aired by Senate Armed Services Committee Chairman Carl Levin, D-Mich., at hearings last summer and in the committee's December 11 report on abuse of detainees by U.S. forces.

But the quoted official, CIA lawyer Jonathan Fredman, told the committee on November 18 that he had made no such statement. In fact, Fredman added in a heretofore confidential, five-page memo, he had stressed at the 2002 meeting with interrogators at the Guantanamo Bay detention facility described in the Levin committee's report, "Interrogation practices and legal guidance must not be based upon anyone's subjective perception" (emphasis added) but rather upon "definitive and binding legal analysis."

Remarkably, the 18-page report issued by the committee (headed "Executive Summary") does not mention Fredman's vehement---and, in my view, quite plausible---denial of the horrifying words attributed to him in a document of debatable reliability that the report, and Levin, have treated as established fact.

Yet one by one, reputable journalists and scholars keep sticking Fredman's quotation in their books and articles. The latest to fall into the trap is the estimable Jess Bravin of the Wall Street Journal, who writes in his book, The Terror Courts: Rough Justice at Guantanamo Bay:

Any doubts Fallon had vanished after he obtained the minutes of a meeting a Guantanamo in which a CIA lawyer named Jonathan Fredman briefed military intelligence officers on interrogation methods. Because the definition of torture was "subject to perception," Fredman said, there was only one sure way to know the limit: "If the detainee dies, you're doing it wrong."

The quote also shows up in this recent article by Jill Lepore, published in The New Yorker, whose august fact-checking department apparently didn't notice that the quotation is almost certainly fictitious---or at the very least contested.

A number of writers have, when confronted with the reality of the quotation, recanted. Barton Gellman, for example, included the quotation in the hardcover edition of his justly famed book about Vice President Cheney. He later wrote:

I have come to believe I did an injustice to Jonathan Fredman, a senior lawyer for the CIA and Office of the Director of National Intelligence. On p. 187 I quoted an infamous line he is said to have delivered at Guantanamo Bay ("if the detainee dies, you're doing it wrong"), the source of which was an unsigned memo released by the Senate Armed Service Committee. Upon closer inspection and further reporting, I have lost confidence in this document, which purports to be minutes of a meeting Fredman attended but plainly departs from verbatim quotation. I have removed the reference to this alleged quotation in the paperback, with an explanation in the chapter notes.

Yet, no matter how many writers fix their error, the quotation keeps showing up.

So as a public service to all of those who are tempted by this admittedly shiny apple of a quotation, here is Taylor's account of the episode and why the quotation is likely to be a garble:

Fredman's supposed statements came during a discussion of aggressive interrogation techniques including sleep deprivation, death threats, and waterboarding at an October 2, 2002, Guantanamo staff meeting. During a brief visit to the prison camp, Fredman, then chief counsel of the CIA's Counterterrorist Center, had been asked to advise about legal restraints on tough interrogations.

Levin's much-publicized quotation, at a June 17 hearing, of the statement that "if the detainee dies you're doing it wrong" came months before Fredman's denial. But how hard did Levin and his staff try to check the accuracy of the allegation before the chairman condemned him?

Fredman's denial was known to Levin's staff, and presumably the chairman himself, when they issued the committee's December 11 report. And there had been reason all along to wonder about the reliability of the document on which the panel relied, headed "Counter Resistance Strategy Meeting Minutes." One of the statements that the "minutes" attributed to Fredman, for example, was absurd on its face and obviously garbled: "In Turkey, they say that interrogation at all, or anything you do to that results in the subject betraying his comrades is torture."

But instead of acknowledging the shakiness of the "minutes"---and despite the fact that the first page states in bold type that "all questions and comments have been paraphrased"---the Levin committee's report put Fredman's supposed statements in quotation marks.

"I did not say the obscene things that were falsely attributed to me [by Levin] at the Senate hearing," Fredman told the committee in his November 17 memo. To the contrary, "I . . . 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 comprehensive investigations must be conducted should a detainee pass away."

The Fredman memo to which Taylor refers is now available too---and has been for some time. Here it is in its entirety:
Jonathan Fredman to SASC, November 17, 2008

Fredman is a personal friend of mine, but this is getting ridiculous. It's one thing to hold political appointees responsible for the things they did, said, and wrote. It's quite another thing to hold career officials accountable for things they didn't say, do, or write.