Pulling Weeds for Think Tank Employees: My Response to Wittes’ Response

Ben Wittes, an employee of the Brookings think tank, had this to say about my post showing how disingenuous his buddy Jonathan Fredman’s defense of his statements at Gitmo in 2002 is.

Responding to her in detail is difficult, because her account is so weedy;

His entire piece is worth reading, because in key ways it reinforces my argument (though Wittes, the think tank employee, appears not to understand that). His refutation consists of:

  • 189 words effectively saying, “sure I wanted to debate interrogation [sic] history that is a decade old two days ago, but now that you’re presenting facts about my buddy I find it boring.”
  • 444 words admitting that Fredman did not specifically disavow the quote that Wittes claims he did, and shifting the emphasis slightly on what he says Fredman’s memo was disavowing.
  • 1238 words that at times seems to miss the entire headline of my post–which is that Fredman’s actions prove his memo is false–but ultimately seems to accept all the evidence that it is false, though he finds that uninteresting.

Wittes claims Fredman tried to refute his perception comment, not his dead detainee comment

Wittes deems it “bizarre” that I would expect a lawyer to deny a statement explicitly if he were really denying it, especially if he were going to spend 6 pages purportedly denying it. That, in spite of that fact that he admits that Carl Levin and other Senators at the hearing to which Fredman responded referenced a number of other things Fredman allegedly said at the meeting.

Yes, Levin and other senators also quoted a few other alleged Fredman comments from the minutes.

As I noted in my post, several of the things Fredman allegedly said at the Gitmo meeting — claiming the CIA decided which torture techniques to use for most techniques and discussing the use of extreme weather in torture — would have been far more legally troubling in light of Gul Rahman’s subsequent death, by freezing to death after CIA used unapproved water dousing on him, than the “if a detainee dies” comment.

And the “perception … detainee dies” wasn’t even the first quote from Fredman that Levin mentioned at the hearing (which Ben obscures with an ellipsis). First, he raised Fredman’s alleged support for exploiting phobias, including insects which — in 2008 we didn’t know but we now do — appears in the list of techniques approved by DOJ. He also raised Fredman’s description of how waterboarding worked before the “detainee dies” comment.

Claire McCaskill (and Hillary Clinton) focused on Fredman’s alleged comment about hiding detainees from ICRC. McCaskill  also raised Fredman’s alleged comment that videotaping interrogations would be ugly (the latter of which, considering someone in Fredman’s immediate vicinity altered the record of a Congressional briefing just as CIA decided to destroy their tapes, might have been particularly damning given the then ongoing John Durham investigation into that destruction). So in fact, the focus on Fredman at the hearing wasn’t at all exclusively on that detainee dies comment, nor was it the most legally dangerous one for him.

But Ben insists — and he may know this from talking to Fredman personally — that Fredman wrote the memo specifically in response to these comments from Levin, and therefore we shouldn’t expect him to specify that directly:

And Mr. Fredman presented the following disturbing perspective [on] our legal obligations under our anti-torture laws, saying, quote, “It is basically subject to perception. If the detainee dies, you’re doing it wrong.” “If the detainee dies, you’re doing it wrong.” How on earth did we get to the point where a senior U.S. Government lawyer would say that whether or not an interrogation technique is torture is, quote, “subject to perception,” and that, if, quote, “the detainee dies, you’re doing it wrong”?

Look, however, at how Wittes summarizes Fredman’s response:

In that memo, Fredman described the comments he provided at the Guantanamo meeting. And he described them in specific response to these alleged quotations. Far from saying that torture is “subject to perception,” as he described his remarks, he “emphasized that all interrogation practices and legal guidance must not be based on anyone’s subjective perception; rather, they must be based upon definitive and binding legal analysis from the Department of Justice.” And he then went on to flatly deny the statements attributed to him: “I did not say the obscene things that were falsely attributed to me at the Senate hearing. . . . The so-called minutes misstate the substance, content, and meaning of my remarks.” His denial could hardly be clearer. [my emphasis]

Note, first of all, that Wittes uses the plural, “quotations,” in this passage. That’s interesting, because at least some of the journalists Ben wants to shut up shut up shut up used the “if the detainee dies, you’re doing it wrong” quotation without the “subject to perception” bit. The two sentences appear together in the notes and I agree they can be treated as one, but the truly shocking quote — the one Ben wants everyone to stop using — is the “if the detainee dies” one, which is utterly consistent with everything Fredman says in his disingenuous memo, which says repeatedly that detainee deaths are bad things.

More interesting though is that Wittes lays out very clearly what he says Fredman was refuting: that he said torture is subject to perception. And his response to that — Ben’s evidence the memo should be accepted as refutation of that comment — is Fredman’s claim that all torture must be based on definitive and binding legal analysis from DOJ.

Wittes seems to accept that Fredman did not base torture on definitive and binding legal analysis from DOJ

Here’s where Ben’s professed difficulty with weeds seems to have utterly sunk his efforts to defend his buddy. Because if it can be proved that Fredman did not, in his actions, ensure that torture be limited by definitive and binding legal analysis from DOJ, then it is clear that his memo is false, a lie, issued to refute some very damning evidence made worse by subsequent events, but not in any way an honest reflection of what Fredman believed or how he acted.

For any think tank employees or others who have difficulty with weeds, here’s what the evidence I laid out showed:

  • The torturers started using sleep deprivation, with the approval of Fredman’s office, months before DOJ got involved.
  • When the torturers exceeded Fredman’s office’s original limits on sleep deprivation, his office just retroactively authorized what they had already done, apparently without any input from DOJ.
  • When Fredman translated DOJ’s guidance for the Abu Zubaydah torturers, he used not the definitive and binding legal analysis from DOJ, but instead a fax John Yoo had sent, one he purportedly wrote without the input or approval of Jay Bybee.
  • After a detainee died after being subjected to a torture technique that had not been approved by DOJ, CIA’s lawyers — including Fredman’s office — tried to snooker OLC into accepting that another document crafted with Yoo outside official channels constituted “definitive and binding legal analysis.” That effort failed.

There are at least four pieces of evidence in the public record that Fredman authorized torture in ways outside of DOJ’s definitive and binding legal analysis. Now, Ben doesn’t refute a single one of these points. Indeed, he actually uses the Yoo fax in his response (he doesn’t, however, mention the retroactive effort to snooker OLC, perhaps because his blogmate was involved in refusing to be snookered).

From which I take it that Ben accepts that Fredman’s office, and Fredman personally, repeatedly found ways around relying on the definitive and binding legal analysis DOJ developed. Ben’s response accepts, it appears, that Fredman’s actions belie his claim in his memo to have always relied on authoritative guidance from DOJ.

Which, as Ben himself lays out, is Fredman’s central refutation to the perception comment.  If that’s proven false, his memo is false.

Wittes also apparently accepts that Fredman used an intent-based definition of torture

Ben apparently had some difficulty with the import of the Yoo fax, too. In addition to the fact that it may not be considered authoritative — the standard Ben claims Fredman was holding himself to — it also differs in key ways from the authoritative memo that go directly to the issue of perception and torture.

I noted in my post on this that the Bybee memo admits the possibility — one it doesn’t agree with — that a torturer may only need the specific intent to commit the underlying actions, whereas the Yoo fax doesn’t even admit that possibility. Ben was unimpressed with the difference between a caveated claim and a non-caveated one. But the actual, authoritative memo also provides other caveats, such as one warning that while good faith belief need not be reasonable, a jury might believe it does.

Although a defendant theoretically could hold an unreasonable belief that his acts would not constitute the actions prohibited by the statue, even though they would as a certainty produce the prohibited effects, as a matter of practice in the federal criminal justice system it is highly unlikely that a jury would acquit in such a situation.

Now, these caveats actually go to the core question at hand, the degree to which Fredman’s actions belie his claim not to have asserted that torture is a matter of perception.

When Fredman’s office wrote a declination memo in the case of Gul Rahman’s death (while the memo may have been written after Fredman’s departure, the underlying guidance to the Salt Pit torturers clearly wasn’t), it used a pretty radical good faith claim to argue that Matthew Zirbel should not be prosecuted. It did not, for example, rely on jurisdiction, which is what DOJ ultimately used (though the Fourth Circuit would now reject that). It instead suggested that it was possible for someone to have a good faith belief you could douse someone with water and then leave them in freezing temperatures without that amounting to the intention to cause severe pain.

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.

This extreme reliance on intent — pushed even farther than Yoo pushed it in the authoritative memo (though arguably not than the fax) — does precisely what Fredman disavows: it places the definition of torture solely within the perception and intent of the torturer, divorced even from the reasonable understanding that if you hose someone down and leave them in freezing temperatures, they will freeze. Whether or not Fredman is the one who wrote the declination memo, that extreme reliance on intent is what Fredman gave to the Zubaydah team (and, quite possibly, why he relied on a the non-authoritative fax).

It was precisely through the publicly disavowed but privately (in 2008) endorsed view that intent was all that mattered that CTC managed to claim Gul Rahman’s death by torture did not amount to torture.

And in practice, that judgment was even worse than Fredman’s “if a detainee dies, you’re doing it wrong” comment. After all, ultimately CTC’s lawyers decided that if a detainee dies, but you didn’t have the good sense to know you were killing him, it was still all good.

How many of the 6000 pages documenting lies will Fredman be implicated in?

There’s one other reason to suspect that Fredman’s memo is just retroactive self-justification.

The Senate Intelligence Committee is currently sitting on a 6000-page report (No! More weeds! the Brookings employees will wail. It hurts!), one of the main conclusions of which is “the CIA repeatedly provided inaccurate information about its interrogation program to the White House, the Justice Department, and Congress.”

I would imagine a number of the things I’ve laid out will be included in that report: misrepresentations to DOJ about how much sleep deprivation had already occurred, the effort from Fredman’s office to alter the record of a Congressional briefing after the fact, the effort to present to OLC a back-channel memo as official. Those are just the things that Fredman’s office was demonstrably involved with; there are far more they likely were involved in.

In other words, back in 2008, when we didn’t know all these facts, it might have been credible to accept Fredman’s claims that he followed the rules. But six years of work from the Senate Intelligence Committee reportedly shows that the CIA — including people in the immediate vicinity of Fredman — were doing a good deal of lying. Lying to, among others, Congress.

But in spite of the fact that Fredman’s known actions clearly belie his central claim in the memo, in spite of the fact that the people in his immediate vicinity have been found to have lied to Congress (including even before that Gitmo meeting), Wittes says we should trust his buddy’s non-denial denial.

Ultimately, though, his actions prove that he believes — or at least told the torturers — that intent is the key to torture. Memo or no, that’s what journalists should be looking at.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

24 replies
  1. emptywheel says:

    @Jason Leopold: It’s actually interesting that he’s NOT asking for the long section of the OPR report that talks about Fredman’s analysis. Cause I imagine that would be rather interesting.

  2. Jeff Kaye says:

    “And if the quotation happens to be erroneous, it will not do to defend its repetition by pointing out the undoubted fact that Fredman gave legal advice to — and sought to protect — operatives engaged in highly-coercive interrogation practices. That was, after all, his job.” [italics added]

    You see, Marcy, it was not only about it being all old news and weedy and all that. It’s that we (meaning you) shouldn’t point out the nefarious work Fredman did protecting those who were “engaged in highly-coercive interrogation practices,” i.e., in torture, because Fredman was, after all, just doing his job.

    Well, that didn’t cut it at Nuremberg, or at Khabarovsk, either, and it doesn’t cut it here today. We may not have our trials, yet, but they will come some day, and perhaps Ben Wittes will be around to defend his torture lawyer then.

    (Weedy postscript: The reference to Khabarovsk may be unknown to most, but I will soon be publishing the documentation of torture that was part of the war crimes trials there… trials the US denounced as propaganda at the time, but which were in fact central to our understanding of the Japanese use of mass torture along with human experimentation to produce a chemical and biowarfare program. This program was subsequently appropriated by the United States via Fort Detrick (and possibly other military or intelligence organs) by giving blanket amnesty to all those involved. The Japanese scientists turned over 100s of pages of detailed autopsies, as well as over 8000 slides of human tissue samples, many taken from live vivisections of prisoners. In the trial documents, some of the accused state that they were forced to do their job. I think we saw the same thing among the Nazis at their trials. Wittes goes them one better. He doesn’t even wait for the trials.)

  3. pdaly says:

    Nice two posts, emptywheel.

    [That’s interesting, because at least some of the journalists Ben wants to shut up shut up shut up used the “if the detainee dies, you’re doing it wrong” quotation without the “subject to perception” bit.]

    I know emptywheel has said in the past that modern social references are not her forte, but isn’t “shut up! shut up! shut up!” a quote from the TV series “Breaking Bad”? (It’s Skyler’s line that is yelled at her sister Marie. Skyler is having a nervous breakdown trying to hide her husband’s nefarious deeds and her own complicity from the family including from her DEA agent brother-in-law).

  4. Jeff Kaye says:

    I think Marcy’s reference to the Senate Intel Committee’s CIA report points to the issue of the timing of Wittes’ article. I am sure she is correct there will be more in that release — if there ever is a release (a huge “if”) — regarding Fredman, and also, btw, about that certain anonymous woman slated to head CTC.

  5. seedeevee says:

    Why is Wittes going out of his way to do this?

    Is he really just helping out a “friend”?

    Are these guys just blinded by patriotism (aka – government sanctioned bloodlust)?

    They are very disturbing individuals and even more so as a group. Thanks for being witnesses for the truth.

  6. Rayne says:

    Responding to her in detail is difficult, because her account is so weedy;

    Oh gods forbid that anybody ever provide detailed analysis which cannot be summed up in 140 characters and/or a 10-second soundbite.

    Jeebus, what an intellectual pussy. This is the kind of mental laziness that brought us the Iraq War, offering a couple handfuls of weak reasons for spending our nation’s prosperity and pissing away what was left of our moral high-ground, while failing to provide solidly reasoned, weedy analysis as to why the war was necessary.

    It’s the Monty Python killer rabbit excuse for moral failing; “run away, run away,” reduced to a single word.

    Weedy.

  7. Peterr says:

    From Wittes’ response:

    I have no interest in spending my time debating interrogation history that is more than a decade old.

    Shorter Wittes: Nothing to see here. Move along, move along. (And don’t misquote my friend.)

  8. emptywheel says:

    @Peterr: Right. But he said that a day or so after having shown a great deal of interest in debating “interrogation” history.

    He got uninterested right damn quick when his facts started crumbling.

  9. JTMinIA says:

    I was amused that you are “Marcy” while his buddy is “Fredman.” I’ll bet that he’s unaware of what this means, too.

    Please, note, dear readers, that when all parties are males, friends are referred to by their first name and enemies by their last names. In contrast, regardless of sex, those trained to be in positions of authority (e.g., physicians) are taught to refer to those below them (e.g., patients or nurses and orderlies) by their first name and to those equal to them (e.g., other physicians) by their last name and to those above them (e.g., hospital directors) by their title or honorific.

    Connect the dots.

  10. emptywheel says:

    @JTMinIA: Well, I DO refer to him as “Ben” in this post.

    But I agree that he tries to diminish me with that reference.

    I still find the “conspiracy theorist” far more amusing. The last refuge of fact-impaired commentators.

  11. Peterr says:

    Wittes:

    But Jonathan’s name has not been dragged through the public mud because he was a lawyer at the agency who happened to be serving at CTC when the agency started capturing and brutally interrogating senior Al Qaeda figures. His name became public because a particular senator chose to name him in a Senate hearing and in a high-profile committee report in connection with a particular comment allegedly made at a particular meeting. This is why Fredman’s name keeps showing up in books and articles. And if the quotation happens to be erroneous, it will not do to defend its repetition by pointing out the undoubted fact that Fredman gave legal advice to—and sought to protect—operatives engaged in highly-coercive interrogation practices. That was, after all, his job.

    Wheeler:

    The Senate Intelligence Committee is currently sitting on a 6000-page report (No! More weeds! the Brookings employees will wail. It hurts!), one of the main conclusions of which is “the CIA repeatedly provided inaccurate information about its interrogation program to the White House, the Justice Department, and Congress.”

    I think that Wittes gave a pretty good description of how Fredman saw his job when he said that he was seeking to “protect operatives engaged in highly-coercive interrogation practices.” Unfortunately, that would square well with the conclusions of the Senate Intelligence Committee as to how they were treated.

  12. posaune says:

    Ok, I didn’t get past the second sentence re “weedy.” Ha Ha — he just figured out that EW is weedy? What planet is he on?

  13. emptywheel says:

    @Peterr: Bingo.

    As I said, there are about 5 things that I’m pretty sure will appear in the report that constitute Fredman or his office misrepresenting the program. But there are a WHOLE SLEW of things that involve CIA representing things that might involve Fredman, I just don’t know whether he personally was involved or not.

  14. emptywheel says:

    @posaune: I’ll be honest. I might not have responded if he hadn’t included that phrase.

    But that’s like dangling catnip in front of a playful kittie.

  15. Don't be the last to cut a deal! says:

    US juridical integrity is as contemptible as ever, but the outside world has made it clear even to the Clandestine Service criminals that the USG is going to have to throw some torturers over the side. With our domesticated Brits breaking ranks on Camp Nama, http://www.guardian.co.uk/world/2013/apr/01/camp-nama-iraq-human-rights-abuses ; and Stare Kiejkuty increasingly harder for the US to suppress, now that its victims have a face in Abd al-Nashiri, kept in view by Gazeta Wyborcza, to preserve any semblance of legitimacy the USG is going to have to sacrifice some apparatchiki. Question is, Who?

    Fredman doesn’t want it to be him. But does anybody think that Fredman has the pull to slough it off on someone else? He’s one notch up from Lynndie England. Graymail is his only hope.

    The USG torturers’ omerta is breaking down.

  16. orionATL says:

    benjamin wittes an apologist for right-wing misconduct?

    absurd!

    from wikipedia, listing wittes’ publications:

    “… Starr: A Reassessment. Yale University Press (2002). Through ten hours of interviews with the controversial former independent counsel, Wittes examines the role that Ken Starr played in implementing the independent counsel statute and investigating the Clinton scandals. Wittes argues that Kenneth Starr should be best understood as a decent man who fundamentally misconstrued his function
    under the independent counsel law. [11]…”

  17. orionATL says:

    – witte’s wife is head of the brooking institution’s saban center.

    see http://www.brookings.edu/about/centers/saban/about

    – see wikipedia on american businessman and dem party moneyman haim saban:

    “… Politics

    Saban says his greatest concern is to protect Israel. At a conference in Israel, Saban described his formula. His three ways to influence American politics were: make donations to political parties, establish think tanks, and control media outlets. [21]

    Saban became involved in politics in the mid-1990s when he felt that support for Israel was slipping in the United States. [4] He says his views have shifted over the years: [2] “I used to be a real leftist. I remember Arik Sharon [the leader of Israel’s right-wing Likud Party] coming here, to my house, a few months before Camp David, when he was still leader of the opposition. He told me there would be no deal because [Yassir] Arafat would not sign. I told myself that there was nothing to be done —these right-wingers were simply insane. I had no doubt that there would be a deal and the problems would be resolved. History proved that Sharon was right and I was wrong. In matters relating to security, that moved me to the right. Very far to the right…When there is a terrorist attack, I am [Avigdor] Lieberman. Sometimes to the right of Lieberman. For two days I really love Lieberman. But afterward I come back to reality. Look, I don’t see a solution today.” [2]…”

  18. Jeff Kaye says:

    Re: Complaint against Jonathan M. Fredman, ODNI/PPR

    http://velvetrevolution.us/torture_lawyers/docs/Fredman_Complaint_2_VR.pdf

    Two months after the release of the Yoo/Bybee OLG memo, Mr. Fredman met at
    Guantanamo Bay, Cuba with a team of ten lawyers who met with their military
    counterparts at the detention facility on October 2, 2002. Mr. Fredman advocated for, and
    defended the application of harsh interrogation techniques at Gitmo in direct violation of
    Uniform Code of Military Justice and the Convention Against Torture, over objections
    and concerns raised by lower level military lawyers….

    Finally, in written response to the Senate Armed Service Committee Report on Detainee
    Treatment, Mr. Fredman claimed he expressed concern about the interrogation program
    and that he had twice offered to resign. However, the fact is Mr. Fredman did not resign.
    In fact he was an active co-conspirator in a program that carried out torture or degrading
    treatment in a number of instances, leading to the documented deaths of the most extreme
    detainees. In his failure to resign or protest, Mr. Fredman showed either gross negligence
    or willful ignorance given the clear precedence and applicable international law. Mr.
    Fredman advanced this program in direct violation of that law instead of resigning. Mr.
    Fredman has produced no evidence to substantiate his counter claims denying his
    countenance of this treatment while the Senate Armed Services Committee stands behind
    its findings.

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