With Bradbury’s Appendix M Opinion and 7th Circuit Vance Decision, the Government Can Torture Any of Us

Three years ago, I showed how Steven Bradbury wrote an OLC memo that approved in advance whatever techniques DOD wanted to put into the sometimes classified Appendix M of the Army Field Manual. At the time, DOJ implied to me that this memo was rescinded along with the rest of Bradbury and John Yoo’s torture memos.

In a really important post yesterday, Jeff Kaye explained that the memo, in fact, remains operative.

LTC Breasseale explained in an email response to my query last year:

Executive Order (EO) 13491 did not withdraw “‘All executive directives, orders, and regulations… from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals.’” It revoked all executive directives, orders, and regulations that were inconsistent with EO 13491, as determined by the Attorney General…. [bold emphasis added]

One last point – you seem suggest below that EO 13491 somehow cancelled Steven Bradbury’s legal review of the FM. EO 13491 did not cancel Mr. Bradbury’s legal review of the FM.”

When I then asked the Department of Justice to confirm what Breasseale had said for a story on the Bradbury memo, spokesman Dean Boyd wrote to tell me, “We have no comment for your story.” The fact Boyd did not object to Breasseale’s statement seems to validate the DoD spokesman’s statement.

Breasseale also described DoD’s view that both the current AFM and Appendix M were “not inconsistent with EO 13491,” which “expressly prohibits subjecting any individual in the custody of the U.S. Government to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the FM. In addition, the Detainee Treatment Act of 2005 expressly prohibits subjecting any individual in the custody of the U.S. Department of Defense to any treatment or technique of interrogation that is not authorized by and listed in the FM. In short, both the President and the Congress have determined that the interrogation techniques listed in the FM are lawful,” Breasseale said.

In his post, Kaye provides a lot of details for why the continued applicability of the memo, authorizing separation, is deeply troubling. I’d add that the particular structure of the memo, which of course allows the insertion of physical torture techniques previously abandoned under cover of classification, adds to the concern.

But there is a pending legal reason why it is important, too.

A few years ago, two contractors, Donald Vance and Nathan Ertel, sued Donald Rumsfeld and others for the torture they were subjected to at Camp Cropper after whistleblowing about Iraqi and US corruption.

The torture was, in large part, the “separation” permitted in Appendix M. As part of their case implicated Rummy personally, they described how, immediately after Congress passed the Detainee Treatment Act, Rummy invented Appendix M as a way to evade the law. At first, the 7th Circuit permitted their Bivens case to move forward. But then the circuit reviewed the decision en banc and dismissed the case. The two have appealed that decision; it is pending a cert decision at SCOTUS as we speak.

As part of their petition for cert, Vance and Ertel describe how Rummy responded to passage of the Detainee Treatment Act by inventing Appendix M. (See PDF 340-341)

242. Further evidence that Defendant Rumsfeld made policy decisions to authorize and encourage the use of torture for interrogating detainees, including detained American citizens, occurred on December 30, 2005. On that day, Congress enacted the Detainee Treatment Act which inter alia, stated:

No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation. DTA Pub. L. 109-148, Div. A, Title X, § 1001 (a), 119 Stat. 2739-40 (Dec. 30, 2005).

Congress went on to state in the DTA that the U.S. shall not subject any detainees to “to cruel, inhuman, or degrading treatment or punishment.” Id. § 1003.

243. Congress thereby evidenced its intent to limit U.S. interrogation techniques to those permitted by the Field Manual when the DTA was drafted. The Field Manual at that time limited the allowable techniques to those consistent with international norms which forbid cruel, inhuman and degrading treatment. In other words, the Field Manual forbade the interrogation techniques that Mr. Rumsfeld had authorized and to which Congress and the American people took exception.

244. In spite of this clear command, the same day Congress passed the DTA, Mr. Rumsfeld modified the Field Manual to include the cruel, inhuman and degrading techniques described above. He added ten pages of classified interrogation techniques that apparently authorized, condoned, and directed the very sort of violations that Plaintiffs suffered. To the best of Plaintiffs’ knowledge, the December Field Manual was in operation during their detention. It was not replaced until September 2006, shortly before Mr. Rumsfeld resigned.

245. Numerous instances of abuse occurring since Defendant Rumsfeld changed the Field Manual in December 2005, including Plaintiffs’ experiences and those documented by UNAMI, make clear that Mr. Rumsfeld did not take measures to conform the interrogation techniques to Congress’ command.

As I noted in 2011, the Bradbury opinion is further proof that Rummy’s top aides — in this case, DOD General Counsel Jim Haynes — were personally involved in inventing Appendix M to bypass DTA. The date on it, too, is important: it shows that Rummy’s office was still making changes to Appendix M in secret two days before Vance was detained.

But consider what all this means going forward. Several of the 7th Circuit Judges agreed that the separation techniques used on Vance and Ertel are torture that violates the DTA.  In an opinion that concurred that Rummy had qualified immunity in this case, Diane Wood nevertheless agreed that the techniques Vance and Ertel were subjected to, “easily qualify as ‘torture.'” Ann Claire Williams said of their treatment,

Congress has already directly addressed and outlawed the detention practices inflicted on these plaintiffs. Instead, the allegation before us is willful, directed non-compliance with the law.

David Hamilton, more narrowly relying on the assumptions necessary in decision to dismiss a case, describes, “All members of this court agree that plaintiffs Vance and Ertel have alleged that members of the United States military tortured them in violation of the United States Constitution.” (The majority decision avoids stating one way or another whether their treatment constitutes torture.)

And yet, the majority opinion, which virtually ignored Rummy’s actions in establishing Appendix M, nevertheless found that everyone in the chain-of-command had immunity for the torture they subjected Vance and Ertel to. As Williams noted in her dissent,

in the effort to wall off high officials’ bank accounts, the majority appears to have erected a sweeping, unprecedented exemption from Bivens for military officers. No case from our highest court or our sister circuits has approached such a sweeping conclusion. The vagueness of the majority’s analysis makes the actual scope of the exemption unclear. Does the new immunity apply only to the highest officials in the chain of command?

That is, the 7th Circuit opinion holds that Rummy specifically, and anyone who comes after him, is immune from suit for violating someone’s constitutional rights, up to and including illegal detention and torture. As Steve Vladeck and James Pfander said in an amicus brief on this case to SCOTUS,

The Seventh Circuit’s decision in this case contravenes nearly 300 years of established tradition, this Court’s well-settled precedents, and the United States’ international obligations under the CAT. Operating under the assumption that it was being asked to “create” a new cause of action, the en banc majority took the unprecedented step of conferring, in effect, absolute immunity from liability on U.S. officials who torture citizens abroad.

The opinion is bad enough. Now add in Bradbury’s still extant memo, which permits DOD to stick whatever torture techniques they want in Appendix M and have his sanction for it. The two together allow the government to continue to engage in torture with, as Vladeck puts it, absolute immunity, so long as it happens overseas.

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.

10 replies
  1. Jeff Kaye says:

    Thanks, only time to quickly read, but you are right the Vance info adds a crucial chapter to our understanding of the torture implementation.

    Appendix M — along with other changes to AFM — we’re definitely meant to get around problems with torture authorization.. I’d think it goes back at least to problems with Yoo’s 3/03 memo.

  2. klynn says:

    Marcy and Jeff,

    Thank you. After reading Jeff’s piece, I wondered about Vance and Ertel.

    EW, as you know I followed their case closely.

    I am lost for words to process this reality.

  3. der says:

    Well that explains why our Peace Prize Constitutional President is looking forward not backward, Rummy and his boyz got a CYA legal document.

    When they come and drag me out of my urban hidey hell hole I plan on singing like a canary. The black souled ghosts of Cheney & Rumsfeld crouching in a corner will be gleefully jerking off to my song of secret darkside intelligence confessions while harmonizing “We were proved fuckin’ right!”

    Think I’ll follow this guys example: http://www.youtube.com/watch?v=NLUGhxy9kno

    Here’s a link to Dana Priest’s Frontline “Top Secret America” updated to the Boston marathon bombing: http://www.pbs.org/wgbh/pages/frontline/topsecretamerica/

    Keystone Kops got nothing on our fearless elites.

  4. Jeff Kaye says:

    You did see in the article that I traced back some sort of revision to the AFM to at least summer 2004?

    Now given these large scale revisions of entire manuals are years-long affairs, I’d bet the “restricted” techniques were not in place until that Dec, 2005 version. I assume this because the JAGs were looking at that 2004 draft.

    But we don’t know for sure, and such knowledge awaits FOIA clarification or some kind of empowered investigation.

  5. peasantparty says:

    @Jeff Kaye: Jeff, That is exactly why I mentioned the revelations from Manning being tied up in this. The CIA was going to do whatever because they always have the cover regardless of whatever laws or treaties there are.

    However, those Army guys are different issue. If the FM was being taken apart and revamped to suit a specific arena then they would have HAD to get the “tortured info” by handing anyone they captured off to Iraqi police, or other areas where black sites were situated.

    The reason I think that more and more is because I remember that there was a long string of Generals that would not participate with Rummy. Never before have I seen decorated officers refuse orders and programs like that. I don’t have a list handy, but our MARVELOUS hostess may have.

    Those Generals would not have sqwaked about going into Iraq because they had been there done that already. I seriously think what they refused to accept was Rummy’s intentional re-work of the AFM after Congress ruled. Those Generals knew there would be blowback and hell to pay for crossing treaties and doing the kind of prisoner sweep Rummy intended.

    Which brings me back to the issue that Rummy went directly against Congress and the Commander in Chief! This may be the exact reason why it appears to us that the military is leading Obama, instead of the other way around. At the beginning of his term, Obama acted one way regarding our military interventions, then he suddenly did a 180.

    Yoo and Bybee need to be drug out into the public square!

  6. What Constitution? says:

    Oh, come on. Look, it’s like this: We don’t torture. Because we don’t torture, saying we did torture is wrong because we don’t torture. And if the rules of judicial construction require the court to presume what was done was torture, well, we don’t torture so that couldn’t be right, so there must be immunity if somebody says we tortured and torturing is what we did. Because we don’t.

  7. Publius says:

    Aquinas—-The sovereign is said to be “exempt from the law,” as to its coercive power; since, properly speaking, no man is coerced by himself, and law has no coercive power save from the authority of the sovereign. Thus then is the sovereign said to be exempt from the law, because none is competent to pass sentence on him, if he acts against the law. Wherefore on Psalm 50:6: “To Thee only have I sinned,” a gloss says that “there is no man who can judge the deeds of a king.” But as to the directive force of law, the sovereign is subject to the law by his own will, according to the statement (Extra, De Constit. cap. Cum omnes) that “whatever law a man makes for another, he should keep himself. And a wise authority [Dionysius Cato, Dist. de Moribus] says: ‘Obey the law that thou makest thyself.'” Moreover the Lord reproaches those who “say and do not”; and who “bind heavy burdens and lay them on men’s shoulders, but with a finger of their own they will not move them” (Matthew 23:3-4). Hence, in the judgment of God, the sovereign is not exempt from the law, as to its directive force; but he should fulfil it to his own free-will and not of constraint. Again the sovereign is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place.

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