Ben Wittes Relies on Obviously False Document to Claim Other Document False

For those coming from Wittes’ so-called response to my post, here’s my response to that response, which shows that Wittes effectively cedes the point that Fredman’s memo is dishonest. 

In a post subtitled “Just Shut Up About Jonathan Fredman” (really!) Ben Wittes argues we should not hold former CIA Counterterrorism Center lawyer Jonathan Fredman responsible for paraphrases attributed to him in the Senate Armed Services Committee report on torture because Fredman wrote a memo claiming he didn’t say those things and because he’s a career official, not a political appointee.

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.

Now, in point of fact, Fredman’s memo does not deny saying “if the detainee dies, you’re doing it wrong.” He says,

Those notes, which were misleadingly labeled by their author as “minutes,” to the best of my knowledge were never circulated for comment and contain several serious misstatements of fact. Those misstatements were then compounded by the false allegation at the hearing that the so-called minutes contained quotations from me; the first page of those so-called minutes themselves expressly states that “all questions and comments have been paraphrased” — and, I might add, paraphrased sloppily and poorly.


I expressly warned that should a detainee die as a result of a violation, the responsible parties could be sentenced to capital punishment.


I noted that if a detainee dies in custody, there will and should be a full investigation of the facts and circumstances leading to the death.


I again 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;

And, after specifically asserting the paraphrase about the Istanbul conference is inaccurate, Fredman concludes,

I did not say the obscene things that were falsely attributed to me at the Senate hearing, nor did I make the absurd comment about Turkey that the author similarly misrepresented. The so-called minutes misstate the substance, content, and meaning of my remarks; I am pleased to address the actions that I did undertake, and the statements that I did make.

Now perhaps Fredman includes “if the detainee dies, you’re doing it wrong,” in his reference to “obscene things,” but he doesn’t specifically say so.

Funny, isn’t it? That a lawyer would write a 6-page memo purportedly denying he said something really outrageous, but never get around to actually denying the statement in question, even while specifically denying another one?

Yet Wittes tells us to shut up shut up shut up about his friend, based on that non-denial denial.

Now, in a twitter exchange about Fredman, Wittes assured me he read both the SASC report and the OPR report on torture. So either he’s a very poor reader, or he doesn’t want to talk about how disingenuous it has since become clear Fredman’s memo was.

The rest of the memo is, by itself, proof that Fredman misrepresents his own actions relating to torture.

Let’s review the timing of all this. Fredman made the alleged statement in Gitmo in October 2002. Less than two months later, Gul Rahman would die in the CIA’s Salt Pit prison after having been subjected to water dousing — which was not then an approved torture technique — and left to freeze to death. So you can understand why Fredman would want to claim, after the fact, he didn’t have such a cavalier attitude about detainees tortured to death, and also that he warned about the consequences of killing a detainee.

When Fredman wrote his memo to SASC in 2008, the Committee and the public had not seen most of the torture memos, including the Bybee memo that approved waterboarding but not water dousing, much less the underlying backup documents.

So when Fredman asserted this in his memo …

In light of the importance of the issue, CIA sought an authoritative statement of Federal law from the Department of Justice, whose Office of Legal Counsel provides the legal advice which is binding upon all Federal departments, agencies, and employees. We did so specifically to avoid having the anti-torture statute misinterpreted as in any way subject to an individual’s particular perception.

… it left the utterly misleading impression that the CIA followed the Bybee memo, contrary to what the CIA Inspector General had already shown (and may have also been intended to rebut the paraphrase of Fredman stating that “The CIA makes the call internally on most of the types of techniques found in [a DOD list of interrogation methods], and this discussion”).

Since then, we’ve discovered several things about Fredman’s role in torture approvals that prove his claims are false.

First, CIA began torturing people well before DOJ got involved. After the torturers exceeded the limits Fredman’s office imposed, the office just retroactively approved the new limits. No hallucinations, no foul, was the considered legal judgment of Fredman’s office, apparently.

Months later, when Fredman wrote the Abu Zubaydah torture team, translating DOJ’s guidance, he did not rely on the authoritative memos approved by Jay Bybee. Instead, he relied on a fax John Yoo wrote, purportedly without the involvement or awareness of Bybee, several weeks earlier. That’s important, because the earlier fax used a different standard for what constituted torture than the authoritative August 1 memo. It held that,

[T]o establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose, of causing prolonged mental harm in order for the use of any predicate acts to constitute torture

The authoritative memo — the one Fredman chose not to rely on — admitted the possibility that causing severe mental pain or suffering might amount to torture regardless of intent.

Now, we don’t know what guidance Fredman’s office provided to the folks at the Salt Pit who killed Gul Rahman. But we know several things about CIA’s conduct after it.

First, Stephen Kappes coached the people who killed Rahman not to record many details of how Rahman died.

According to two former officials who read a CIA inspector general’s report on the incident, Kappes coached the base chief—whose identity is being withheld at the request of the CIA—on how to respond to the agency’s investigators. They would report it as an accident.

“The ADDO’s direction to the field officer anticipated that something worse had occurred and so gave him directions on how to report the situation in his cable,” one of the former officials says.

“The ADDO basically told the officer, ‘Don’t put something in the report that can’t be proved or that you are going to have trouble explaining.’ In essence, the officer was told: Be careful what you put in your cable because the investigators are coming out there and they will pick your cable apart, and any discrepancies will be difficult to explain.”

As a result, the former official says, the Salt Pit officer’s cable was “minimalist in its reporting” on what happened to the prisoner.

So much for CIA’s commitment to a thorough investigation.

Then, after DOJ told CIA’s lawyers to collect their own facts about Rahman’s death and the mock execution used with Abd al-Rahim al-Nashiri, CIA’s lawyers and John Yoo — again, operating outside official OLC channels — wrote another document, dubbed the Legal Principles or Bullet Points, which appeared to help them out of their legal problems in three ways. The document,

  • Claimed that techniques “comparable” to those approved by DOJ could also be used with detainees
  • Listed a bunch of laws that purportedly did not apply to CIA interrogations
  • Claimed “CIA interrogations of foreign nationals are not within the “special maritime and territorial jurisdiction” of the United States” and therefore are not subject to laws like wrongful death

When Pat Philbin took over at OLC, someone at CTC (presumably in Fredman’s office) faxed the document to Philbin, claiming it was a finalized document. And when Jack Goldsmith was assessing the OLC memos underlying torture, CIA General Counsel Scott Muller tried again (and also asked Goldsmith to specifically approve water dousing). Yet in spite of those two attempts to tell OLC that this document Yoo had developed by freelancing with CIA counted as an OLC document, Goldsmith ultimately determined that “the bullet points did not and do not represent an opinion or a statement of the views of this Office.”

In spite of all that, though, CTC (again, presumably Fredman’s office) was the office that got to determine whether or not anyone should be charged for killing Rahman. Ultimately, they held that,

If [Matthew] Zirbel, as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute.

That is, Fredman’s office (almost certainly he himself; update, this assumes, perhaps incorrectly, CTC wrote its declination memo before Fredman left in April 2004) ultimately determined torture depended only on intent (and wrongful death didn’t apply). That’s precisely the language in the fax he presented as DOJ’s authoritative judgement to Zubaydah’s torturers. And, ultimately, it is precisely the kind of subjective determination that Fredman’s 2008 memo disavows.

When actual prosecutors finally reviewed that decision, they found that the Salt Pit was outside US jurisdiction and therefore not subject to laws like wrongful death (the Fourth Circuit ultimately disagreed with this judgement, at least with regards to the much less organized Forward Operating Bases).

So here’s what the record shows the office Fredman led did. In April 2002, Fredman’s office retroactively authorized extreme sleep deprivation (the same treatment and timeframe the UK has deemed cruel and inhuman), apparently without consulting DOJ. Even after DOJ issued an authoritative document, Fredman personally relied on an earlier fax issued without Bybee’s involvement. When CIA did ultimately torture someone to death in November 2002, CIA and Yoo attempted to make a new authoritative document, one that would cover for their use of unauthorized techniques to kill someone. And ultimately, Fredman’s office used utterly subjective determination — Zirbel’s intent — to declare torturing someone to death kosher.

In other words, everything Fredman asserted in his memo about DOJ authorization is contradicted by his actions. It wouldn’t be the first time that someone in Fredman’s immediate vicinity altered the record on torture after the fact.

Of course, the fact that the rest of the memo presents a false account of Fredman’s actions doesn’t say anything, one way or another, about whether Fredman said “if the detainee dies, you’re doing it wrong,” just two months before a detainee died. Then again, the memo doesn’t either.

Maybe instead he said “no hallucinations no foul”?

Update: Now that I’ve reread the “minutes” in their entirety, I note that Fredman reportedly said something even more damning, two months before Gul Rahman froze to death.

Everything on the BSCT white paper is legal from a civilian standpoint. [Any questions of severe weather or temperature conditions should be deferred to medical staff.]

Now, it’s unclear whether the bracketed comment is attributed to Fredman or the notetaker. But it’s clear from the context that Fredman envisioned using “severe weather” as a torture technique.

Fredman also allegedly said this:

The threat of death is also subject to scrutiny, and should be handled on a case by case basis. Mock executions don’t work as well as friendly approaches, like letting someone write a letter home, or providing them with an extra book.

The “threat of death” is not “subject to scrutiny.” John Yoo had told Fredman, personally, two months earlier that it was not approved. And yet Fredman was purportedly telling others that it simply needed scrutiny, as if it could be approved.

17 replies
  1. Bustednuckles says:

    If I am following this correctly then John Yoo is basically guilty of conspiracy.

    Probably not worded correctly but accurate never the less.

    I would dearly love to see that little weasel get nailed to the barn door for something, anything at this point.

  2. P J Evans says:

    Fredman apparently believes that intent is magic: not intending to harm someone somehow makes everything good when they are harmed.

  3. thatvisionthing says:

    My favorite quote about the three Guantanamo “suicides” in one night, by Scott Horton at Antiwar Radio:

    I still can’t figure out how you murder three people in a row, accidentally even, with rags down the throat. I mean, after you just killed two, you’re doing it wrong, that’s right in the memo. @30:35

    You mean he was serious?

    But I see Fredman wasn’t serious:

    I expressly warned that should a detainee die as a result of a violation, the responsible parties could be sentenced to capital punishment.

    Because someone has to look for responsible parties first, and in this whatever you call it, there are none. (Because of that other secret memo with the secret title, “the president made me do it” one?)

  4. thatvisionthing says:

    @thatvisionthing: Hey, this is interesting. Speaking of Guantanamo suicides, when I was looking for the Horton quote, which I’d used before on firedoglake, one of the search results was this 2011 post by Jeff Kaye, “Benjamin Wittes Responds: ‘Happy to be a government proxy,'” which ends with:

    One last thing: Mr. Wittes, you cited favorably at your original post on Horton a May 17 blog post by Cully Stimson, former deputy assistant secretary of defense for detainee affairs at the time of the prisoners’ deaths. In Stimson’s post, which you extensively quoted, Stimson claimed, “According to published reports, previously classified documents released by Wikileaks show that the suicides were indeed suicides, and were deliberate acts by the detainees.” Could you or Mr. Stimson refer us to these “published reports” or “previously classified documents”? In the name of publishing the truth, and furthering your critique of the Horton article, I can’t see why you’d ever refuse.

    Did Wittes or Stimson ever supply the reports Jeff was asking them to ante up?

  5. thatvisionthing says:

    One other curiosity. The place I did find my previous quote on firedoglake was here, “CCR Condemns Ninth Shameful and Tragic Death at Guantánamo”:

    Or actually, here, at the wayback machine: – because that specific firedoglake page kept hanging and not loading. I tried several times and ways, gave up, and was able to get it faster on the wayback machine, though the fdl page did finally load. What’s up with that? Just thought I’d share.

  6. Jeff Kaye says:

    @thatvisionthing: I can assure you I never heard anything more on this from Wittes, not to mention Cully Stimson. Frankly, I believe he made it up, or was confused.

    — Great write-up, Marcy. I’d say friendship has clouded Mr. Wittes’s judgment. But I wonder why he got so Verklempt over it. Did his good friend Fredman call him up and complain? “Gee, Ben, you’ve got a bully pulpit with your whole blog thing… couldn’t you tell these haters to just shut the F up?”

    Yes, the timing does interest me, as after all, the whole story about what Fredman said is getting kind of old. I’m wondering if it has anything to do with the controversy over the new proposed head of CTC. I’d guess Fredman knows her fairly well.

    But if… if the controversy over the anonymous appointee heats up, someone just might start looking into her career more deeply. And if so, what will they find there? Something that could reflect poorly on Mr. Fredman? I mean, beyond the superb job Marcy has done here in outing his pretensions to being merely a professional attorney, and shown him to be an enabler for torture.

    Btw, Marcy, those brackets you refer to in the update were in the original SASC release. If you look at how the brackets are used throughout that document, i.e., as containing material of further explication, then you can see they were added later by someone going over the original minutes (which may have been handwritten, Idk).

    For instance, earlier in the minutes, we find this statement attributed to LTC Beaver (brackets in SASC original):

    “We may need to curb the harsher operations while ICRC [International Committee of the Red Cross — added by transcriber] is around.”

    Hence, I think we can assume the transcriber added the material, possibly from memory, to further explain an item.

    For my part, I believe Fredman, trying to be funny, no doubt, did say the words attributed to him. I don’t think the transcriber made them up. And as you astutely point out, he never denies actually saying those words.

    And Benjamin, if you happen to be reading this, I am still waiting for those “previously classified documents released by Wikileaks [that] show that the suicides were indeed suicides, and were deliberate acts by the detainees.” Just a link would be fine.

  7. thatvisionthing says:

    @Jeff Kaye: Hi Jeff! So glad to hear your reply and am looking forward to Wittes addressing those documents in his reply.

    I have a reaction to this part:

    “We may need to curb the harsher operations while ICRC [International Committee of the Red Cross — added by transcriber] is around.”

    Hence, I think we can assume the transcriber added the material, possibly from memory, to further explain an item.

    For my part, I believe Fredman, trying to be funny, no doubt, did say the words attributed to him. I don’t think the transcriber made them up. And as you astutely point out, he never denies actually saying those words.

    I’m thinking a transcriber who is so detail oriented that he or she puts in brackets to helpfully spell out abbreviation like ICRC is not likely going to be a flippant paraphraser. Also, “transcriber” – transcribing from what? Common is from recorded audio, a tape or digital sound file – “possibly from memory” isn’t transcribing, it’s something else. If they’re writing out minutes from handwritten notes, I’d think title in that case would be more like secretary. So that’s a fair question, can we go to audio and check?

  8. thatvisionthing says:

    @Jeff Kaye: Jeff, do you have a link to the “original SASC release” where “ICRC [International Committee of the Red Cross — added by transcriber]” is? I don’t see it in the big SASC PDF report. Could be I’m missing it though. Thanks.

  9. I've Got My Eyes On You says:

    The Dangers of Surveillance
    Neil M. Richards
    Washington University in Saint Louis – School of Law
    Harvard Law Review, 2013

    From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, our law and literature are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad, and why we should be wary of it. To the extent the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context, and why it matters. Developments in government and corporate practices, however, have made this problem more urgent. Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no tangible harms, as the Supreme Court did recently in the case of Clapper v. Amnesty International. We need a better account of the dangers of surveillance.

    (via )

  10. P J Evans says:

    OT: SCOTUS has turned down the challenge to counting everyone, not just US citizens, when redistricting.

  11. emptywheel says:

    Know what else is funny about this?

    Diane Beaver is not, 11 years after the fact, questioning the accuracy of the notes. Yet they implicated her just as badly as Fredman, with her assertion (which turned out to be true) that DOD was hiding those detainees who were abused from ICRC.

  12. Jeff Kaye says:

    @thatvisionthing I am embarrassed to say that the transceiver in question is… me.

    While the brackets that Marcy pointed out in her update are indeed in the original document (see link below), the other explanatory brackets in question were inserted by myself when I posted it on my blog years ago. The minutes were not released in cut and paste format.

    If any questions, please refer to the original:

    Sorry for any confusion, but also thanks for questioning and leading me to clarification of an error.

  13. thatvisionthing says:

    @emptywheel: It could be that Diane Beaver was the one who wrote the minutes, and she described herself as detached, so she’d be a good person to ask. I remembered an article about those early meetings and the oddity of her name. Found it: The Green Light, by Philippe Sands, in the May 2008 Vanity Fair:

    It was clear to me that Beaver believed Washington was directly involved in the interrogations. Her account confirmed what Dunlavey had intimated, and what others have told me—that Washington’s views were being fed into the process by people physically present at Guantánamo. D.I.A. personnel were among them. Later allegations would suggest a role for three C.I.A. psychologists.

    During September a series of brainstorming meetings were held at Guantánamo to discuss new techniques. Some of the meetings were led by Beaver. “I kept minutes. I got everyone together. I invited. I facilitated,” she told me. The sessions included representatives of the D.I.A. and the C.I.A. Ideas came from all over. Some derived from personal training experiences, including a military program known as sere (Survival, Evasion, Resistance, and Escape), designed to help soldiers persevere in the event of capture. Had sere been, in effect, reverse-engineered to provide some of the 18 techniques? Both Dunlavey and Beaver told me that sere provided inspiration, contradicting the administration’s denials that it had. Indeed, several Guantánamo personnel, including a psychologist and a psychiatrist, traveled to Fort Bragg, sere’s home, for a briefing.

    Ideas arose from other sources. The first year of Fox TV’s dramatic series 24 came to a conclusion in spring 2002, and the second year of the series began that fall. An inescapable message of the program is that torture works. “We saw it on cable,” Beaver recalled. “People had already seen the first series. It was hugely popular.” Jack Bauer had many friends at Guantánamo, Beaver added. “He gave people lots of ideas.”

    The brainstorming meetings inspired animated discussion. “Who has the glassy eyes?,” Beaver asked herself as she surveyed the men around the room, 30 or more of them. She was invariably the only woman present—as she saw it, keeping control of the boys. The younger men would get particularly agitated, excited even. “You could almost see their dicks getting hard as they got new ideas,” Beaver recalled, a wan smile flickering on her face. “And I said to myself, You know what? I don’t have a dick to get hard—I can stay detached.

    Were these meetings videoconferences linked to Washington?

  14. thatvisionthing says:

    @Jeff Kaye: That makes sense, thanks. btw, I’ve read Wittes’ reply to Marcy now, and there’s not a word mentioned there about you or the missing Guantanamo suicide documents he/Stimson have failed to produce.

  15. thatvisionthing says:

    The end of Wittes’ rebuttal says there’s another account of the meeting, written by Fredman at the time, and that Wittes and Marcy should file a FOIA for it and that’ll settle it. But I’m thinking that would only be more he says she says. There were other witnesses. According to the minutes, 10 people were present at that meeting. What do the other eight say? And was it videoconferenced and is there a recording? TV like that, I can’t believe there wouldn’t be.

  16. Snoopdido says:

    Wittes states:

    “But Marcy does identify several reasons she believes Fredman’s account in his memo to be false—and thus, presumably, the infamous quotation to be valid. Responding to her in detail is difficult, because her account is so weedy; she accuses me of being a bad reader for not picking up the gems she has mined from the record. The trouble is that they are not gems. Rather, she has gotten mired down in arcana in the way conspiracy theorists often do. And she has built an elaborate structure out of these arcana. Don’t breathe too hard around it, though. It might fall over.”

    1. Wittes disparagingly implies that Emptywheel is a “conspiracy theorist”. He uses the term as a perjorative to attempt to belittle and dismiss Emptywheel’s fact reporting and analysis.

    Wittes, as a law professor, shows an astonishing lack of legal comprehension and intellectual self-awareness in his dismissive reply.

    Wittes apparently is unable to cognitively recognize that the Bush administration torture program fits the definition of a conspiracy exactly to a T:

    “An agreement between two or more persons to commit a crime or accomplish a legal purpose through illegal action.”

    2. As for his “built an elaborate structure out of these arcana” charge against Emptywheel, Wittes condemns precisely the very same behavior to which he and his legal colleagues aspire.

    Hair-splitting on an infintesimal scale, obscure arcana, and complex written structures composed of almost impenetrable logic are the very hallmarks of the legal profession.

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