Has the Government Left Minh Quang Pham “Languishing Forever”?

Screen shot 2013-02-13 at 3.55.43 PMJohn Brennan made two interesting comments about FBI interrogation at his hearing last week. First, in response to a Martin Heinrich question, he suggested that the Army Field Manual shouldn’t be the interrogation standard for the entire government because the FBI “has its own processes and procedures.”

HEINRICH: Thank you. Do you believe that all agencies of the United States government should be held to the interrogation standards that are laid out in the Army Field Manual as it — as currently required by Executive Order 13491? And do you support efforts to codify those requirements into law?

BRENNAN: The Army Field Manual certainly should govern the U.S. military’s detention and interrogation of individuals.

The FBI has its own processes and procedures and laws that govern its activities. So what I wanted to do is to make sure that, you know, appropriate sort of attention is paid to FBI as opposed to the military.

Then, when Brennan was very patiently explaining to Marco Rubio that his ideas about detention and interrogation are erroneous and stupid (my words), he said this about FBI interrogations.

BRENNAN: No. Again, it’s tailored to the circumstances. Sometimes an individual will be Mirandized. Sometimes they will not be Mirandized right away. Mirandizing an individual means only that the information that they give before then cannot be used in Article III court.

But, in fact, the FBI do a great job as far as eliciting information after they’re Mirandizing them, and so they can get information as part of that type of negotiation with them, let them know they can in fact languish forever, or we can in fact have a dialogue about it intelligently.

“They can languish forever”? I didn’t think the Sixth Amendment had a “languish forever” exception.

But Brennan’s apparent belief there is one got me thinking about Minh Quang Pham, whom I wrote about here.

Pham is a Vietnamese immigrant to the UK who traveled to Yemen in December 2010 and went on to help Samir Khan produce Inspire magazine. He was arrested to great fanfare last June, when his May 24 indictment was purportedly unsealed. Though his docket shows no sign of that unsealing; rather, it says the indictment was unsealed two months later. He returned to the UK in December 2011, where he was held in immigration detention. It’s unclear whether he’s still there — the Brits can hold someone in detention indefinitely and extradition to the US has been taking a lot of time of late — or whether he was moved here either in June when DOJ had a big dog and pony show over his arrest or in August when the docket says his previously unsealed indictment was unsealed. That’s the last thing that appears in Pham’s docket. I’ve asked SDNY for a status report but have not yet gotten an answer.

In any case, one of the last people with ties to the UK or US to spend time with Anwar al-Awlaki and, especially, Samir Khan is languishing … somewhere.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

7 replies
  1. Jeff Kaye says:

    I’m not real familiar with the Pham case, but I have looked into the case of Omar Awadh Omar, a supposed HVD currently held in Uganda (he’s from Kenya), and the dozens of others arrested around the same time in a big joint Uganda-Kenya-FBI-NYPD (& HIG?) round up in Kampala in 2010. The Open Society Justice Initiative did a big report just a few months ago on charges of FBI interrogation abuse in these cases, and I published an in-depth look at that report at the end of 2012.


    This from my article:

    A number of detainees have alleged abuse by FBI officers, including physical threats, hitting, hooding and threat of further rendition to Guantanamo. One prisoner alleged an FBI officer threatened him with a gun, telling him, “There are no human rights here. We are in charge of the police and the courts, and you will spend your life in prison and will not see your family again”….

    In a review of instructions given to FBI agents for interrogations in foreign detention centers, Truthout found that interrogators are to supposed follow certain “non-coercive” rapport-building techniques, as well as the 18 “approach” techniques approved by Army Field Manual 2-22.3 (Human Intelligence Collector Operations). Such “approaches” include the use of “Fear Up,” “Emotional Pride and Ego Down” and “Emotional Futility.”

    There is a 19th technique in the Army Field Manual, involving the use of isolation on a prisoner (Appendix M of the AFM). While not formally placed in the FBI’s list of techniques, the Agency’s manual does recommend “isolation of the detainee,” stating, “In order to create the optimum conditions for productive interview, if the policy of the facility permits, consider having your detainee placed in an individual cell several days before you begin interrogation.”

    Asked to respond to the varied abuse allegations, Wright, the FBI’s spokeswoman, told Truthout in an email exchange, “The FBI demands strict adherence to both the letter and the spirit of all applicable laws, regulations, and policies. Each employee has the responsibility to uphold the FBI’s core values of integrity and accountability so that the Bureau maintains the public’s trust.”

    Awadh states in his court statement (which I’ve seen but is not yet publicly posted) that FBI interrogators told him “If you want to see your children, you’ll have to cooperate.” He was also threatened with transfer to Guantanamo or Bagram.

  2. emptywheel says:

    @Jeff Kaye: Yeah, I was thinking of a number of our interrogations in Africa. Given how many times Brennan brought up ships, I wonder whether Pham is on one.

  3. emptywheel says:

    @Jeff Kaye: And, it goes w/o saying, was also thinking about “separation.” If that’s not what Brennan is referring to with his languish comment I’d be shocked.

  4. Jeff Kaye says:

    @emptywheel: Perhaps “separation”/isolation, though I almost think he slipped into a form of “Fear Up” here, which is what threats of such treatment amount to.

    It’s interesting he sidestepped the question re codifying the AFM techniques into law.

    “The FBI has its own processes and procedures and laws that govern its activities. So what I wanted to do is to make sure that, you know, appropriate sort of attention is paid to FBI as opposed to the military.”

    Now, why bring up the FBI here? Perhaps he’s assuming that’s what Heinrich is asking about. But when it comes to interrogation, the FBI is bound now by the Army Field Manual just as much as the CIA. This was the result of the review undertaken by Obama’s Exec Order. It strikes me that they may also be covertly talking somehow about the HIG, which is based under FBI’s administrative umbrella, but obviously involves other agencies, not least the one Brennan is fated to lead.

    Maybe you have a more informed take on this than I do.

  5. emptywheel says:

    @Jeff Kaye: That’s why I raised it. It sounded very clearly like you couldn’t mandate AFM bc FBI is NOT bound to it. Maybe that’s w/in the context of HIG, or maybe it’s FBI.

    I think, btw, that Faisal Shahzad was sleep deprived.

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