Steven Bradbury Didn’t Disclose His Appendix M Opinion to Congress

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As I posted a week ago, in April 2006 Steven Bradbury wrote one of the most egregious of all the egregious torture memos, one approving the new Army Field Manual, including its Appendix M laying out more intense interrogation methods. While the legal analysis of the memo was, itself, fairly nondescript, the analysis in the memo was written to the file rather than to the client, DOD. This separated Bradbury’s actual approval of the new document for DOD from any analysis or caveats. Approving the memo in such a way allowed DOD to change the content of Appendix M (which they did do), while still maintaining a letter saying whatever was in Appendix M had been approved by OLC.

Which is why I find it so interesting that, in response to a direct Question for the Record from John Conyers in 2008, Bradbury didn’t reveal the memo.

(D) Please identify any other legal opinions or memoranda you have authored or assisted in drafting regarding the interrogation of detainees by U.S. personnel or contractors.

ANSWER: In addition to the three opinions issued by OLC in May 2005, I assisted in preparing the public December 30, 2004 opinion interpreting the federal anti-torture statute. In addition, I authored two opinions related to the CIA program in 2006 and one in 2007. The latter opinion was provided in conjunction with the President’s issuance of Executive Order 13440 setting forth the legal requirements for the CIA program in accordance with the Military Commissions Act of 2006. I also provided or participated in providing other legal advice relevant to the CIA program, either orally or by letter, from time to time in the period from 2004 to the present, and also presented testimony or briefings or participated in preparing letters on the subject to Committees of Congress and their Members and staffs. Finally, I assisted in drafting legal advice and testimony concerning Department of Defense interrogation policies during the tenure of Assistant Attorney General Jack Goldsmith in 2004.

Here’s what Bradbury admits to being involved with:

The only advice he admits being involved with for DOD is limited to the aborted effort to draft a replacement for the Yoo Memo in 2004. And he clearly limits that activity to 2004.

Which means that, when John Conyers asked Bradbury to list every opinion he had written on interrogation, Bradbury did not do so. He hid at least this memo.

I find that interesting not just because Bradbury provided an incomplete answer to Congress on the torture program. But since we still have no idea what authorization DOD used from 2004 until 2006, when Bradbury wrote this memo, Bradbury’s non-disclosure raises the question of what else Bradbury and the Bush Administration may have hidden about OLC approvals for DOD’s torture program.

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9 replies
  1. JTMinIA says:

    Forgive me for being stupid (which is my way of saying that I’ve struggled but can’t find a way to ask this without appearing aggressive), but how do you get from “I authored two opinions related to the CIA program in 2006” to “August 31, 2006 Conditions of Confinement Memo” and “August 31, 2006 DTA Memo” in particular? Did he attach those two to his response or are you inferring that he means these two from the “related to the CIA program” part of his answer?

    • emptywheel says:

      Yeah, I’m inferring. Though there has been reporting between 2008 and now which pointed to Bradbury’s involvement in these two opinions.

      In other words, he told us of two opinions, we got reporting on the context of the two opinions (and the need for them, for example created by the DTA), and then last year we got these two.

      Of course, it’d be worse if there were MORE CIA opinions, but I think my inference is pretty safe.

  3. JTMinIA says:

    Thanks. And just to be clear: it doesn’t really matter to which two he was referring. He said two and there are three. Point made. Mostly I wanted to know because which-ever is the one that he didn’t include is likely to have the most interesting stuff in it.

    • emptywheel says:

      No, the numbers correlate:

      I authored two opinions related to the CIA program in 2006 and one in 2007.

      There are two from 2006 (DTA and Conditions) and one from 2007 (13440).

  4. Jeff Kaye says:

    Much thanks for staying on top of this issue. While it does open the door for the supposition that there are other unreported memos, the silence on Appendix M (a memo written for the record) points, I believe, to the inclination by DoD and their facilitators, including the CIA who knew that the AFM was sooner or later meant, as the DTA originally intended, and many in Congress were advocating, to serve as the interrogation blueprint for CIA as well, to keep things as murky and unexamined around the new AFM and its Appendix M as possible.

    In my mind, it points to the centrality of the AFM rewrite to their torture plans. Misdirection and spin were used for a long time to sell the new AFM as an improvement over the old one, something it hardly was. I can’t tell you how many I spoke with back in 2006-2008 who were insistent on the trope that the AFM had some new better controls on chain of command control over interrogations. These were individuals at major rights groups whose names I’d rather not give, to save them the embarrassment of pointing out their errors now.

    But then, can you blame them? There were very few back then pointing out this issue, while the Washington Post (9/7/06) was reporting the unvarnished spin:

    Pentagon officials yesterday repudiated the harsh interrogation tactics adopted since the Sept. 11, 2001, terrorist attacks, specifically forbidding U.S. troops from using forced nudity, hooding, military dogs and waterboarding to elicit information from detainees captured in ongoing wars.

    The Defense Department simultaneously embraced international humane treatment standards for all detainees in U.S. military custody, the first time there has been a uniform standard for both enemy prisoners of war and the so-called unlawful combatants linked to al-Qaeda, the Taliban and other terrorist organizations.

    As I wrote in an article in early 2009 on the “selling” of the new Army Field Manual:

    Two conclusions can be drawn from the above examination of the “selling” of the Army Field Manual to the American public in the late summer of 2006 and beyond. One is that reporters on the beat were very aware of the origins and implications of the issues surrounding Geneva and the AFM, and the controversies surrounding the use of isolation and other techniques under the rubric of “Separation.” The extremely muted or non-existent discussion in the mainstream press of these issues after the AFM was introduced means that a decision to suppress these issues was made at an editorial level, and were not the result of laziness or dilatory reporting on behalf of reporters.

    Secondly, the role of some human rights organizations in promoting the new Army Field Manual….

    … the full history and controversy behind torture and U.S. interrogation policy deserves a full airing. What happened, for instance, between June and September 2006, allowing for Pentagon acceptance of the Appendix M abusive procedures?

    Now we know more. Thanks to your analysis, EW, and the release of the Bradbury 2006 memo, we know that the AFM got perfunctory OLC approval, and also that Appendix M was likely changed in some fashion in that summer of 2006. But, as before, we have much to still learn. We need a full, independent, impartial, thorough and effective investigation into the entire U.S. torture and interrogation program. That would include greater transparency, btw, about the role of the shadowy Intelligence Science Board (run, it appears, by the CIA) in constructing the country’s current interrogation policies.

  6. harpie says:

    OT but everytime I see this title I’m thinking it says:
    “Bradbury has exposed his appendix”.
    I guess I need a nap.

  7. timbo says:

    “It wasn’t an opinion; it was an appendix!” Uh, I hope that’s how it’s spelled…

    Seriously, thank you for keeping on this. The truth of what happened here should not be buried…along with the other bodies and skeletons that the Bush regime should remain infamous for.

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