Tag Archives: Steven Bradbury

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

By:  Thursday May 2, 2013 1:37 pm

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 At the time, DOJ implied to me that this memo was rescinded along with the rest of Bradbury and John Yoo’s torture memos.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. Continue reading →


Yes, the Government Does Believe the Military Can Use Military Force in the US

By:  Sunday March 3, 2013 2:43 pm

I made an error.

In this post, I suggested that debates about whether the 2001 Authorization to Use Military Force constituted an exception to the Posse Comitatus Act ignore that for 7 years — from the time John Yoo wrote a memo on whether the Fourth Amendment inhibited military deployment in the US  in 2001 until the time Steven Bradbury “withdrew” the memo in 2008 — the official position of the Executive Branch was that PCA had been suspended under the AUMF.

Armando Llorens and Adam Serwer have debated — specifically in the context of whether the President could kill Americans within the US – whether PCA applies in this war. And while they’re staging an interesting argument (I think both are engaging the AUMF fallacy and therefore not discussing how a President would most likely kill Americans in the US), what the Yoo memo shows, at the least, is that the folks running the Executive Branch believed, for 7 years, the PCA did not apply.

To be clear, this memo was withdrawn in October 2008 (though not without some pressure from Congress). While the PCA aspect of the opinion is one of the less controversial aspects in the memo, as far as we know it has not been replaced by similar language in another memo. So while this shows that PCA was, for all intents and purposes, suspended for 7 years (as witnessed by NSA’s wiretapping of Americans), it doesn’t mean PCA remains suspended.

My error was in suggesting Bradbury “withdrew” the memo.

He did not.

Instead, Bradbury directed that “caution should be exercised” before relying on it.

The purpose of this memorandum is to advise that caution should be exercised before relying in any respect on the Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (Oct. 23, 2001) (“10/23/01 Memorandum”) as a precedent of the Office of Legal Counsel, and that certain propositions stated in the 10/23/01 Memorandum, as described below, should not be treated as authoritative for any purpose.

As noted, he said that five propositions in the Yoo memo should not be treated as authoritative for any purpose.

We also judge it necessary to point out that the 10/23/01 Memorandum states several specific propositions that are either incorrect or highly questionable. The memorandum’s treatment of the following propositions is not satisfactory and should not be treated as authoritative for any purpose:

But then, in a series of bullet points laying out the problems with those five propositions, Bradbury doesn’t always dismiss the outcomes Yoo’s analysis supported, but in several cases accepts the outcomes but simply provides a different basis for supporting them. Continue reading →


Obama Administration Not Meeting Transparency Standard Set by Bush Lawyer Steven Bradbury

By:  Friday February 22, 2013 12:07 pm

Glenn Greenwald has a great post on the Administration’s refusal to say whether it can kill Americans inside the US. But he misstates how extreme Obama’s refusal to share Office of Legal Counsel memos is. That’s because he equates an Administration sharing OLC memos with the intelligence committee and sharing them with the public.

Critically, the documents that are being concealed by the Obama administration are not operational plans or sensitive secrets. They are legal documents that, like the leaked white paper, simply purport to set forth the president’s legal powers of execution and assassination. As Democratic lawyers relentlessly pointed out when the Bush administration also concealed legal memos authorizing presidential powers, keeping such documents secret is literally tantamount to maintaining “secret law”. These are legal principles governing what the president can and cannot do – purported law – and US citizens are being barred from knowing what those legal claims are.

[snip]

You know who once claimed to understand the grave dangers from maintaining secret law? Barack Obama. On 16 April 2009, it was reported that Obama would announce whether he would declassify and release the Bush-era OLC memos that authorized torture. On that date, I wrote: “today is the most significant test yet determining the sincerity of Barack Obama’s commitment to restore the Constitution, transparency and the rule of law.” When it was announced that Obama would release those memos over the vehement objections of the CIA, I lavished him with praise for that, writing that “the significance of Obama’s decision to release those memos – and the political courage it took – shouldn’t be minimized”. The same lofty reasoning Obama invoked to release those Bush torture memos clearly applies to his own assassination memos, yet his vaunted belief in transparency when it comes to “secret law” obviously applies only to George Bush and not himself.

But it is not the case that Bush always sat on OLC memos. In fact, as Dianne Feinstein noted in John Brennan’s confirmation hearing, at least by the last year of the Bush Administration, Democrats had gotten Steven Bradbury to start turning over even the most sensitive OLC memos to Congress.

I wanted to talk about, just for a moment, the provision of documents. Senator Wyden and others have had much to do about this. But our job is to provide oversight to try to see that the CIA and intelligence communities operate legally.

In order to do that, it is really necessary to understand what the legal — the official legal interpretation is. So the Office of Legal Counsel opinions becomes very important.

We began during the Bush administration with Mr. Bradbury to ask for OLC opinions. Up til last night, when the president called the vice chairman, Senator Wyden and myself and said that they were providing the OLC opinions, we have not been able to get them. It makes our job to interpret what is legal or not legal much more difficult if we do not have those opinions.

Which made it possible to — as DiFi did in an exchange with Michael Mukasey on April 10, 2008 — force the (Bush) Administration to publicly disavow some of the more extreme positions endorsed by John Yoo.  Continue reading →


Steven Bradbury’s Revenge

By:  Thursday September 27, 2012 10:41 pm

Since I noted in August 2011 that Mitt had named two torture architects to his legal advisory committee (Tim Flanigan and Steve Bradbury), I have had zero doubt that Mitt would embrace torture if he were President. So Charlie Savage’s story–reporting on a September 2011 memo confirming that fact–wasn’t surprising in the least to me. Here’s the key recommendation from the memo:

Governor Romney has consistently supported enhanced interrogation techniques. Governor Romney is also on record as stating that he does not believe it is wise for him, as a presidential candidate, to describe precisely which techniques he would use in interrogating detainees. The combination of these two positions, as well as the information presented above, leads to two principal options in this area for his campaign.

The first option is that Governor Romney could pledge that upon taking office, he will rescind and replace President Obama’ s Executive Order restricting government interrogators to the Army Field Manual. Consistent with the authority reserved for the President under the Military Commissions Act, he could commit his Administration to authorizing (classified) enhanced interrogation techniques against high-value detainees that are safe, legal, and effective in generating intelligence to save American lives. But because President Obama’s release of the OLC memos has reduced the number of available techniques that meet these criteria, Governor Romney should not commit in advance to a timetable for implementing this plan; it may well take time to identify potential techniques and analyze their effectiveness and legality.

[snip]

The Subcommittee recommends the first option. Governor Romney has recognized for years that the sounder policy outcome is the revival of the enhanced interrogation program. And a reluctance by the Governor to expressly endorse such an outcome during the campaign could become a self-fulfilling prophecy once he takes office by signaling to the bureaucracy that this is not a deeply-felt priority. [my emphasis]

Mitt is pro-torture. We knew that, and he hasn’t hidden that fact.

But there are a couple of details about this that are curious.

First, note the language here. The advisors worry that if Mitt doesn’t explicitly endorse getting back into the torture business during the election, he might not do so. They want to force his hand before he’s elected to make sure he’ll carry through.

That is not the language of advisors. It’s the language of puppet-masters (though I’m sure the equivalent memos from inside the Obama camp aren’t much different). That is, the legal advice here is designed not so much to provide the best advice (if it were, then the support used in the memo wouldn’t be such discredited propaganda). Rather, it is to force Mitt’s hand in the eventuality he becomes President.

The other interesting aspect of this are the people. Savage provides this list of the advisors, in addition to Steven Bradbury, in the loop on this memo (he notes that it’s unclear whether they have bought off on the advice).

The list also included Michael Chertoff, the former homeland security secretary; Cully Stimson, the Pentagon’s detainee policy chief; and many other Bush-era executive branch veterans: Bradford Berenson, Elliot S. Berke, Todd F. Braunstein, Gus P. Coldebella, Jimmy Gurule, Richard D. Klingler, Ramon Martinez, Brent J. McIntosh, John C. O’Quinn, John J. Sullivan, Michael Sullivan and Alex Wong. Three others — Lee A. Casey, Maureen E. Mahoney and David B. Rivkin Jr. — served in earlier Republican administrations.

First, note where Savage starts this list: Michael Chertoff, who as Criminal Division head in 2002 refused to give Bush’s torturers an advance declination on prosecution. That refusal ultimately led to the contorted form of the original Yoo memos authorizing torture. If Chertoff supports this policy (Savage’s caveat noted), then it’s a pretty clear indication that Chertoff was cautious in 2002 because people like Ali Soufan were running around saying mock burial was torture, and not because he had any qualms about torture himself. That’s not surprising in the least, but still worth noting.

Maureen Mahoney (who defended Jay Bybee in the OPR investigation) and David Rivkin (who defended Rumsfeld in civil suits for torture) have also backed their earlier legal representation with their own reputation (or lack thereof).

Finally, note who’s not on this list: Tim Flanigan, who with Alberto Gonzales, Dick Cheney, and David Addington, was one of the most central architects of torture and other illegal counterterrorism approaches.

It’s sort of odd that Mitt advisor Tim Flanigan, one of the original architects of torture, wasn’t the one leading this effort last year.


Michael Hayden’s Stone Walling

By:  Sunday June 17, 2012 1:57 pm

As a number of outlets have reported, in his book, Daniel Klaidman describes Michael Hayden’s effort to convince Obama to approve 6 torture techniques by demonstrating some of them on David Shedd.

But [Hayden's] most unusual prop was David Shedd, the deputy DNI for policy, plans, and requirements. Not long into his presentation, Hayden called Shedd over. Suddenly, unexpectedly, Hayden slapped Shedd’s face. Then he grabbed him by the lapels and started to shake him. He’d wanted to throw him up against the wall during this demonstration, but there were chairs in the way. Instead he explained to Obama and his aides about the interrogation technique known as “walling,” in which detainees were thrown against a flexible artificial wall that made a loud noise on impact but caused little physical pain.

These were three of the remaining six techniques that made up the harsh interrogation methods the CIA had relied on since shortly after 9/11. (The most controversial practice, the simulated-drowning technique known as waterboarding, had not been used since 2003.) The others were the playing of loud music, keeping the lights on in the cell twenty-four hours a day, and sleep deprivation.

According to this description, on December 9, 2008, Michael Hayden told Obama the 6 permissible torture techniques at that time were:

  • facial slap
  • attention grasp
  • walling
  • use of music
  • use of light
  • sleep deprivation

Really? That’s odd.

If I’m not mistaken, the last formal Bush OLC memo embracing torture was the July 20, 2007 memo authorizing the following six techniques:

  • facial hold
  • attention grasp
  • abdominal slap
  • facial slap
  • dietary manipulation
  • sleep deprivation

There were three more letters written after this memo approving (and in one case, extending) treatment with particular detainees: August 23, 2007, November 6, 2007, and November 7, 2007. But they appear to deal with sleep deprivation, not a new approval of walling. And yet in December 2008, Hayden said CIA was using walling.

It may be that the July 2007 memo was meaningless. After all, it relied on Bradbury’s past memos (see footnote 2), including the May 10, 2005 one where Bradbury found walling to be legal. Moreover it was issued in conjunction with (though did not mention) Bush’s Executive Order 13440, which asserted,

(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:

[snip]

(iii) the interrogation practices are determined by the Director of the Central Intelligence Agency, based upon professional advice, to be safe for use with each detainee with whom they are used;

In other words, EO 13440 lets the CIA Director decide what torture techniques are legal. And so long as you’re still clinging to the 2005 torture memos, Michael Hayden can decide that even waterboarding is legal. And Michael Hayden told the incoming Administration that walling was legal.

Notably, in Hayden’s second attempt to convince the Obama Administration to use torture–roughly January 13, 2009–he appears to have suggested that Dianne Feinstein was mischaracterizing walling.

Hayden’s advocacy of the interrogation program was just as fierce: it worked, and it was vital to America’s national security, he said. Democrats had wildly mischaracterized the techniques, including California senator Dianne Feinstein, who, he said, made walling “sound like some kind of a WWF steel-cage death match,” when in fact suspects wore neck braces to avoid getting whiplash.

There’s some further story, I suspect, about why Hayden was pitching a technique that even Steven Bradbury hadn’t included in approved techniques in July 2007.


Philip Zelikow Saves Condi Rice’s Hiney (Again)

By:  Wednesday April 4, 2012 1:26 pm

Back in April 2009, former State Department Counselor and all-around Condi Rice fixer Philip Zelikow revealed that “in 2005,” he had written a dissent to Steven Bradbury’s 2005 Memo finding the torture program complied with the Convention against Torture, but that most copies of it had been destroyed by the Administration.

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives.

It turns out that David Addington didn’t succeed in destroying all the copies. The National Security Archive just liberated a copy.

Now, the memo (which was actually dated February 15, 2006) reveals Zelikow’s very sane legal argument that our torture program had to comply with the 8th Amendment. But it also reveals some subtleties about the bureaucratic maneuvering around torture. Notably, that Zelikow was trying to save Condi Rice’s arse again.

To understand why, go back to this post (see also this post), explaining what Bradbury was trying to do with his 2005 CAT Memo: respond to explicit concerns raised by Congress (probably Jay Rockefeller) about whether our torture program complied with the CAT. It shows how (as documented in the narrative on the process that Rockefeller released), the Senate Intelligence Committee had forced the Bush Administration to agree to consider whether our torture program violated CAT. The Administration agreed to do so only after the National Security Council–then chaired by Condi Rice–agreed.

According to CIA records, subsequent to the meeting with the Committee Chairman and Vice Chairman in July 2004, the CIA met with the NSC Principals to discuss the CIA’s program. At the conclusion of that meeting, it was agreed that the CIA would formally request that OLC prepare a written opinion addressing whether the CIA’s proposed interrogation techniques would violate substantive constitutional standards, including those of the Fifth, Eighth and Fourteenth Amendments regardless of whether or not those standards were deemed applicable to aliens detained abroad.

DOJ stalled for 10 months. Daniel Levin, as acting head of OLC, approved more individual torture techniques. Levin wrote an unclassified memo ignoring CAT. Congress continued to pressure. The Administration laterally transferred Levin because he wasn’t writing the memos they wanted, authorizing combined techniques and waterboarding and, somehow, finding that torture program complied with CAT. Bradbury got the job to write those memos. And then, finally, 10 months after SSCI demanded that DOJ consider CAT, Bradbury wrote his memo finding that the torture program did not violate CAT’s prohibition against cruel, inhuman, or degrading treatment.

I lay out in the post the specious tricks Bradbury pulled to make that claim, and scribe laid out the legal reasons the arguments were so specious. But in specific regard to SSCI’s demand that OLC review whether the program complied with the Fifth, Eighth, and Fourteenth Amendment, Bradbury punted by saying it didn’t have to, and certainly didn’t have to comply with the Eighth.

Based on CIA assurances, we understand that the interrogations do not take place in any … areas over which the United States exercises at least de facto authority as the government. … We therefore conclude that Article 16 is inapplicable to the CIA’s interrogation practices and that those practices thus cannot violate Article 16.

[snip]

Because the high value detainees on whom the CIA might use enhanced interrogation techniques have not been convicted of any crime, the substantive requirements of the Eighth Amendment would not be relevant here, even if we assume that Article 16 has application to the CIA’s interrogation program.

After reading drafts of such bullshit, Jim Comey tried to convince Bradbury to fix it–to no avail.

Of note, however, here’s what then Attorney General Alberto Gonzales said Condi–who had become Secretary of State in the interim–had to say about the importance of complying with our treaty obligations.

The AG began by saying that Dr. Rice was not interested in discussing details and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion.

And so, with the Secretary of State dismissing treaty obligations by saying “that ended it,” torture got approved for use by the Executive Branch again.

Zelikow’s memo admits that State didn’t object to Bradbury’s memo.

The State Department agreed with the Justice Department May 2005 conclusion that [Article 16] did not apply to CIA interrogations in foreign countries.

Now, Zelikow claims that passage of the McCain amendment–which was signed on December 30, 2005–is what changed the State Department’s interpretation. Continue reading →


Columnist Endorses War Crimes Against al Qaeda Because They Murdered a Journalist

By:  Friday November 4, 2011 1:38 pm

I had never heard of Alex Beam before today, but his column in today’s Boston Globe crossed my email (h/t dakine01) and I am still fuming at his cavalier endorsement of war crimes. Perhaps even more infuriating, though, is that Beam’s endorsement of war crimes is an aside tossed in while Beam is making an argument with which I otherwise agree.

Beam’s central point, as he suggests in his title for the column,”A double standard on war crimes?”, is that while John Yoo has been widely vilified for his role in authoring the OLC memos that authorized torture, David Barron and  Martin Lederman haven’t been attacked nearly as aggressively for authoring the OLC memos under which Anwar al-Awlaki, an American citizen, was killed in Yemen.  My only quibble with that point is that Beam’s roster for the torture memos should be expanded to also include at least Jay Bybee and Steven Bradbury.  His argument:

So, which is the greater crime against the Constitution that all three men swore to uphold? Waterboarding Al Qaeda suspects or killing US citizens? Yoo has been vilified from Marin County to Munich for his legal opinion. If the Obama lawyers are facing job loss or tenure revocation, I haven’t heard about it. This is not a subject they care to discuss.

Beam relies on Mary Ellen O’Connell of Notre Dame to further his argument:

“I do think the two cases call for a different level of criticism,’’ she says. “Isn’t killing worse than torture? Even if the arguments to support torture are weaker arguments, it seems to me that the US should err on the side of the strictest compliance of the law when it comes to taking somebody’s life.’’

Where is the outrage, I asked? It won’t come from the right, she pointed out, “because the policies that Obama is pursuing are basically the same policies that Bush pursued.’’ So where are the principled men and women of the left? “Some of the people who criticized Yoo and his colleagues are in the administration,’’ she answered. “Marty Lederman was a critic of John Yoo, and now he’s writing the memos. So he’s not going to criticize himself.’’

I agree that Lederman and Barron should be subjected to the same level of criticism as Yoo (and Bybee and Bradbury), although I’m less inclined to make a distinction between the crimes of murder and torture.  I find both equally heinous and never justified under any conditions.  As O’Connell points out, the torture arguments likely were much farther outside the law than the extrajudicial execution arguments, but I still can’t join her in making killing artificially a higher crime than torturing.

But here is the jaw-dropping problem with Beam’s column.  Just a bit over halfway through the column, we get this paragraph:

Two points. First, I’m all for waterboarding Al Qaeda bad guys, and the disappearance of al-Awlaki and his ilk by whatever means necessary bothers me not a whit. Continue reading →


Donald Rumsfeld’s Torture Defense and Appendix M

By:  Tuesday August 9, 2011 2:36 pm

As I noted yesterday, the 7th Circuit has permitted a Bivens lawsuit against Donald Rumsfeld to move forward.

I wanted to turn to a dispute not resolved in the opinion, which should be: whether or not Rummy changed the Army Field Manual after the Detainee Treatment Act so as to permit ongoing use of torture.

As the opinion notes, plaintiffs Donald Vance and Nathan Ertel claim that not only did Rummy ignore the DTA’s prohibition on torture, he secretly changed the Army Field Manual to permit it.

The plaintiffs contend that, after the enactment of the Detainee Treatment Act, Secretary Rumsfeld continued to condone the use of techniques from outside the Army Field Manual. ¶ 244. They allege that on the same day that Congress passed the Detainee Treatment Act in December 2005, Secretary Rumsfeld added ten classified pages to the Field Manual, which included cruel, inhuman, and degrading techniques, such as those allegedly used on the plaintiffs (the plaintiffs refer to this as “the December Field Manual”). Id. The defendants describe this allegation as speculative and untrue, but we must accept these well-pled allegations as true at the Rule 12(b)(6) stage of the proceedings.8

On appeal, the plaintiffs 8 cite a newspaper article reporting on the development of this classified set of interrogation methods. See Eric Schmitt, “New Army Rules May Snarl Talks with McCain on Detainee Issue,” New York Times (Dec. 14, 2005), available at http://www.nytimes.com/2005/12/14/politics/ 14detain.html (last accessed Aug. 4, 2011) (“The Army has approved a new, classified set of interrogation methods . . . The techniques are included in a 10-page classified addendum to a new Army field manual . . .”). The plaintiffs contend that Secretary Rumsfeld eventually abandoned efforts to classify the Field Manual, but that the “December Field Manual” was in operation during their detention and was not replaced until September 2006, after plaintiffs had been released, when a new field manual (Field Manual 2-22.3) was instituted. ¶ 244; Pl. Br. at 11. The dissent criticizes plaintiffs’ reliance on the newspaper report, but plaintiffs’ case for personal responsibility rests on allegations that are far more extensive. In any event, these are disputes of fact that cannot be resolved by a Rule 12(b)(6) motion.

But the thing is, Vance doesn’t need to rely on this newspaper article to prove a version of Appendix M authorizing their torture exists. They can rely on Steven Bradbury’s opinion describing Appendix M as it existed during their torture.

As a reminder, Vance and Ertel were detained by American troops around April 15, 2006 and sent to Camp Cropper a few days later; Ertel was released in May 2006 and Vance was released July 2006. While there, they allege, they were subjected to:

exposure to intolerable cold and continuous artificial light (no darkness day after day) for the duration of their imprisonment; extended solitary confinement in cells without any stimuli or reading material; blasting by loud heavy metal and country music pumped into their cells; being awoken by startling if they fell asleep; threats of excessive force; blindfolding and “hooding”; and selective deprivation of food and water, amongst other techniques.

On April 13, 2006, just days before Vance and Ertel’s torture started, in a memo for the file assessing whether changes to the AFM complied with the DTA, Steven Bradbury described Appendix M as it existed at that time. His description makes it clear that DOD had added six techniques not otherwise allowed by the AFM.

Appendix M of the FM 2-22.3, provides guidance for the use of six “restricted interrogation techniques” that are otherwise not permitted by the Field Manual.

Now, DOJ redacted four of the six techniques in releasing this memo under FOIA (the two left unredacted are “Mutt and Jeff” and “False Flag”). But comments that remain unredacted later in the memo make it clear that they involve precisely the kind of environmental manipulation, sleep deprivation, and solitary confinement inflicted on Vance and Ertel. Bradbury writes:

Similarly, the three “Adjustment” techniques are designed to change the detainee’s environment [3/4 line redacted] but without depriving him of any basic necessities or exposing him to dangerous or tortuous conditions. Whether these techniques are used separately or in tandem, the detainee is guaranteed to received adequate levels of food, water, sleep, heat, ventilation, and light. In addition, the detainee’s health must be continually monitored by medical personnel. These safeguards ensure that these techniques do not involve the infliction of punishment and negate any inference that they represent deliberative indifference.

Finally, the “Separation” technique expressly requires that the “basic standards of humane treatment” be maintained even though the detainee may be isolated from other detainees. A detainee subjected to this technique does not undergo sensory deprivation and thus is far less likely to suffer the adverse physiological consequences associated with that experience. M-51. In addition, the Separation technique is carefully limited in duration, which is not to exceed 30 days without express authorization from a senior military officer. With these limitations in place, and given the important role isolation can play in conditioning detainees for interrogation (including limiting the ability to frustrate or mislead interrogators by sharing information about the interrogation process), the Separation technique does not amount to punishment and is not shocking to the conscience. [my emphasis]

Bradbury’s description of detainees receiving adequate food and water, sleep, warmth, and light make it clear these are precisely the environmental factors manipulated under the “Adjustment” techniques. And his discussion of “Separation” makes it clear Bradbury is describing solitary confinement. Thus, while the description of these techniques may be redacted, they clearly must describe the techniques used on Vance and Ertel.

Now, at one level this memo–if Rummy weren’t pretending it didn’t exist–might help his case. After all, like the Yoo memos before it, this memo gives legal approval for torture, in this case stating that Appendix M techniques did not violate DTA.

But there are several reasons why, as used with American citizen non-combatant, the memo does not apply. Bradbury reveals, for example, that these techniques “may be used only during the interrogation of ‘unlawful enemy combatants’.” Vance and Ertel were actually given a detainee review board, and were called Security Internees, not Enemy Combatants.

Further, Appendix M as it existed when they were tortured “required that detainees receive adequate medical care,” something Vance and Ertel were specifically denied.

In addition, Appendix M prohibited the use of threats; but threats of “excessive force” were used with Vance and Ertel.

There’s one more out that Rummy might try to take. As I described in this post, this memo uses a structure I’ve not seen in any other OLC memo. Bradbury notes that he sent a letter (also on April 13, 2006) to DOD General Counsel Jim Haynes “advis[ing] that these documents are consistent with the requirements of law, in particular with the requirements of the Detainee Treatment Act of 2005.” We don’t have that letter. Rather, we have the memo that Bradbury wrote to the file. In other words, we have no way of knowing whether Bradbury communicated his caveats tying (for example) medical care to his judgment that the techniques described in Appendix M complied with the DTA (though we do know that the highest levels of DOD were involved in this approval process).

Now, aside from the fact that Bradbury’s direct quotes make it clear that those limitations were in Appendix M itself, there’s another problem with this. Both Bradbury’s unusual gimmick–as well as his subsequent failure to disclose it to Congress when specifically asked–is itself evidence that DOD and OLC were trying to hide their efforts to get around the clear meaning of DTA.

Here’s the specific refutation Rummy’s team made that his DOD revised the Army Field Manual before the torture of Vance and Ertel.

Nor is plaintiffs’ allegation that defendant Rumsfeld “modified” the Field Manual on “the same day Congress passed the DTA” to add “ten pages of classified interrogation techniques that apparently authorized, condoned, and directed the very sort of violations that Plaintiffs suffered.” SAC ¶ 244. Apart from relying on pure guesswork about the contents of supposedly classified information plaintiffs have never seen, there is no credible factual basis for the theory that the Field Manual was modified in any manner on December 30, 2005 (the DTA’s date of passage) or even in “December 2005,” id. ¶ 245, or that some portion of it is classified. To the contrary, the only update of the Field Manual since September 1992 was in September 2006, and no part of either of these versions is classified. Both the 1992 and 2006 Field Manuals are matters of public record and can be viewed in their entirety on the Internet at: www.loc.gov/rr/frd/Military_Law/pdf/intel_interrrogation_sept-1992.pdf (1992 Field Manual) [my emphasis]

Rummy claims that his DOD did not have a classified version of Appendix M; Rummy claims they didn’t update the AFM before September 2006.

Except his General Counsel got approval from OLC for that updated classified version of Appendix M just days before the torture on Vance and Ertel started.


Mitt Romney Names Two Torture Lawyers to “Justice Advisory Committee”

By:  Tuesday August 2, 2011 1:10 pm

The headline news about Mitt Romney’s new advisory committee of 63 lawyers is that Robert Bork is co-chairing it.

But even more troubling is that he has named two of the lawyers that okayed torture–Steven Bradbury and Tim Flanigan–to it.

Bradbury, of course, wrote the Combined Torture memo, which found, in part, that waterboarding someone 183 times in a month does not shock the conscience.

He also told DOD it could do whatever it wanted, so long as it called it “Appendix M.” Bradbury failed to mention that memo from Congress, too, when they asked for a list of all the torture memos he had been involved in.

Bradbury would have been investigated over the memos he wrote, had Michael Mukasey not intervened.

Flanigan was one of the three lawyers–along with David Addington and Alberto Gonzales–who told John Yoo to turn the Torture Memo into a “Get Out of Jail Free” card by saying that if the Commander-in-Chief ordered torture, then it couldn’t be prosecuted.

Now, why would Presidential Candidate Mitt Romney appoint two men who called torture legal to his Justice Advisory Committee?


The Weird Circumstances Surrounding Hassan Ghul’s Interrogation

By:  Thursday May 5, 2011 12:33 pm

As I noted earlier, the AP and other outlets have reported that Hassan Ghul was among the first to inform American interrogators of the importance of Abu Ahmed al-Kuwaiti. Here’s what the AP reported.

Then in 2004, top al-Qaida operative Hassan Ghul was captured in Iraq. Ghul told the CIA that al-Kuwaiti was a courier, someone crucial to the terrorist organization. In particular, Ghul said, the courier was close to Faraj al-Libi, who replaced Mohammed as al-Qaida’s operational commander. It was a key break in the hunt for in bin Laden’s personal courier.

“Hassan Ghul was the linchpin,” a U.S. official said.

Given the apparent importance of Ghul’s interrogation, as well as reports that he was freed at some point, I wanted to point out several oddities that may relate to his interrogation.

A Long Delay Before Entering CIA Interrogation

Here’s an outdated timeline I did of Ghul’s treatment (I’m working on an updated one). But we know he was first reported captured on January 22 or 23 2004. Yet, CIA was just getting approval for interrogation techniques to use with Ghul in August 2004, seven months later.

We know this from an unredacted reference to Ghul in the May 30, 2005 CAT Memo.

The interrogation team “carefully analyzed Gul’s responsiveness to different areas of inquiry” during this time and noted that his resistance increased as questioning moved to his “knowledge of operational terrorist activities.” Id at 3. [redacted] feigned memory problems (which CIA psychologists ruled out through intelligence and memory tests) in order to avoid answering questions. Id.

At this point, the interrogation team believed [redacted] “maintains a tough, Mujahidin fighter mentality and has conditioned himself for a physical interrogation.” Id. The team therefore concluded that “more subtle interrogation measures designed more to weaken [redacted] physical ability and mental desire to resist interrogation over the long run are likely to be more effective.” Id. For these reasons, the team sought authorization to use dietary manipulation, nudity, water dousing, and abdominal slap. Id at 4-5. In the team’s view, adding these techniques would be especially helpful [redacted] because he appeared to have a particular weakness for food and also seemed especially modest.

The document referred to here was a August 25, 2004 memo from the CIA to Daniel Levin, who was acting OLC head after Jack Goldsmith left in 2004. While we haven’t seen that memo, we have seen his response, written the following day, which approves the use of dietary manipulation, nudity, water dousing, and abdominal slap. That letter also references an August 13, 2004 meeting (at which water dousing was clearly discussed), and a July 30, 3004 letter, with attachment, and the attachment to a August 2 letter.

In other words, from this correspondence, it would appear that it took at least six months (from late January to late July) before the CIA got around to torturing Ghul.

This, in spite of the fact that an earlier reference to the August 25 letter claims that CIA believed Ghul had information about pending attacks.

On [redacted] the CIA took custody of [redacted] whom the CIA believed had actionable intelligence concerning the pre-election threat to the United States. [reference to August 25 letter] [redacted] extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and intelligence indicated [redacted] arranged a … meeting between [redacted] and [redacted] at which elements of the pre-election threat were discussed. Id at 2-3; see also Undated CIA Memo, [redacted]

That paragraph is followed by more intelligence that may pertain to Ghul alone, to another detainee alone, or to Ghul and then another detainee:

Intelligence indicated that prior to his capture, [redacted] perform[ed] critical facilitation and finance activities for al-Qa’ida,” including “transporting people, funds, and documents.” Fax for Jack L. Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [redacted] Assistant General Counsel, Central Intelligence Agency (March 12, 2004). The CIA also suspected [redacted] played an active part in planning attacks against United States forces [redacted] had extensive contacts with key members of al Qaeda, including, prior to their capture, Khalid Shaykh Muhammad (“KSM”) and Abu Zubaydah. See id. [Redacted] was captured while on a mission from [redacted] to establish contact” with al-Zarqawi. See CIA Directorate of Intelligence, US Efforts Grinding Down al-Qa’ida 2 (Feb. 21, 2004)

In addition to the information on Ghul contained in the August 30 CAT Memo, there’s further reference to correspondence on Ghul in the May 10, 2005 Techniques memo (which for a variety of reasons must have been written to pertain to Ghul specifically).

You asked for our advice concerning these interrogation techniques in connection with their use on a specific high value al Qaeda detainee named [redacted] You informed us that the [redacted] had information about al Qaeda’s plans to launch an attack within the United States. According to [redacted] had extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and had arranged meetings between an associate and [redacted] to discuss such an attack. August 25 [redacted] Letter at 2-3. You advised us that medical and psychological assessments completed by a CIA physician and psychologist, and that based on this examination, the physician concluded [redacted] medically stable and has no medical contraindications to interrogation, including the use of interrogation techniques addressed in this memorandum. 20

20 You have advised us that the waterboard has not been used [redacted] We understand that there may have been medical reasons against using that technique in his case. Of course, our advice assumes that the waterboard could only be used in the absence of medical contraindications.

The following footnote describes, among other things, that Ghul “was obese, and that he reported a “5-6 year history of non-exertional chest pressures.”

And there’s this information, which was leaked to Fox:

Ghul, a Pakistani, is known to have been an Al Qaeda member since the early 1990s, when Al Qaeda was established.

[snip]

One official said Ghul was “definitely in Iraq to promote an Al Qaeda, Islamic extremist agenda.” Ghul is described by officials as a facilitator known in terrorist circles as “the Gatekeeper” who moves money and people around the Middle East, Africa and possibly beyond. Officials added that Ghul has extensive contacts in Al Qaeda and wider terrorist communities, and is thought to have had some kind of connection to the 1998 East African embassy bombings, though officials stress those links are still being probed.

All of which presents us with the highly implausible possibility that Ghul was captured in January 2004, believed to be a key facilitator for al Qaeda, yet not entered into the CIA program and tortured until six or seven months later.

There are several possible explanations for this odd fact, including (note, these are all possibilities–I’m not saying they definitely happened):

  • Ghul’s transfer to CIA custody was delayed by concerns about removing him from Iraq
  • Ghul was moved to CIA only after they got intelligence about pre-election attacks
  • Ghul’s torture happened under DOD, not CIA, custody
  • CIA required Ghul’s interrogation to be approved personally by the Principal’s Committee, which it did without the advice of Jack Goldsmith or Jim Comey
  • Ghul’s interrogation approvals were retroactive

I believe some combination of these factors explains they delay between the time when Ghul was captured and when CIA first got approval for his interrogation. If I had to make a wildarsed guess, I think DOJ prevented Ghul’s transfer into the CIA program for some time, and once he was transferred (with approval directly from the Principals Committee and possibly without any more formal legal cover), CIA used water dousing, which had not yet been formally approved, all of which forced them to retroactively approve his treatment.

Continue reading →