Obama, The Crawford Torture Admission & The Army Field Manual Lie

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In an earlier post I discussed the startling direct admission that the United States tortures terror detainees made public in last Wednesday’s blockbuster Bob Woodward piece in the Washington Post. As the Bush Administration’s hand picked convening authority for the military tribunals, otherwise known as the "Gitmo Show Trials", Susan Crawford’s admission carries the binding mark of credibility.

In this post, I want to explain the troublesome ramifications Crawford’s admission carries for the provisions in the Army Field Manual regarding the treatment and interrogation of detainees. And the Army Field Manual is a singularly important frame of reference because President-Elect Barack Obama famously staked his claim to being a torture reformer during the election by promising to restrict US detainee interrogation techniques to those contained in the Army Field Manual. President-Elect Obama is holding true to his word.

The proposal Obama is considering would require all CIA interrogators to follow conduct outlined in the U.S. Army Field Manual, the officials said.

However, Obama’s changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said.

This is where Susan Crawford’s stark admission comes into play. As Crawford admits, most all of the techniques used on al-Qahtani were actually permissible, but the layering of techniques compounded them into unmistakable torture.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani’s health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Crawford has exposed to bright sunlight the lie that is Barack Obama’s, and other politicians’, simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.

The case is laid out convincingly by Dr. Jeffrey S. Kaye, a clinical psychologist specializing in the analysis and treatment of torture victims. Dr. Kaye has been tirelessly fighting the US torture regime through both his clinical work and his blog Invictus under the pseudonym Valtin. In a comprehensive article originally published at AlterNet, and cross-posted at Invictus, he filets open the Army Field Manual lie.

In early September 2006, the U.S. Department of Defense, reeling from at least a dozen investigations into detainee abuse by interrogators, released Directive 2310.01E. This directive was advertised as an overhaul and improvement on earlier detainee operations and included a newly rewritten Army Field Manual for Human Intelligence Collector Operations (FM-2-22-3). This guidebook for interrogators was meant to set a humane standard for U.S. interrogators worldwide, a standard that was respectful of the Geneva Conventions and other U.S. and international laws concerning treatment of prisoners.

There was only one problem: the AFM did not eliminate torture. Despite what it said, it did not adhere to the Geneva Conventions. Even worse, it took the standard operating procedure of Camp Delta at Guantanamo Bay and threatened to expand it all over the world.

The viral instructions in the AFM transform into an abusive and illegal torture program. Most of these "instructions" can be found hidden in the proverbial fine print of the document, in its very last appendix, labeled with no apparent irony as regards the mythology of James Bond, Appendix M.

Appendix M, titled "Restricted Interrogation Technique — Separation," misrepresents itself from the very beginning. (One wonders if it was rewritten from an earlier draft, at a time when the Pentagon wanted to keep these procedures classified.) It is not actually a technique (singular), but a set of techniques, though one has to read deeply into its 10 pages of text and be somewhat sophisticated in the history of psychological torture procedures, to assemble a full view of the viral program.

This program is nothing less than the one established in researcher Albert Biderman’s Chart of Coercion, which, as revealed by the recent Senate Armed Services Committee investigation into detainee abuse, was the blueprint used by SERE instructors at Guantanamo in late 2002 to teach abusive interrogation techniques. (SERE stands for Survival, Evasion, Resistance, Escape and is the military program to "inoculate" certain military personnel against torture or abusive treatment by an enemy that doesn’t recognize Geneva protocol.)

What kind of procedures, which the manual avers cannot be used on regular prisoners of war (who are covered by the Geneva Convention Relative to the Treatment of Prisoners of War), make up this special interrogation "technique," separation? In fact, it includes the following: solitary confinement, perceptual or sensory deprivation, sleep deprivation, the induction of fear and hopelessness, and the likely use of sensory overload, temperature or environmental manipulation, and any number of other techniques permitted elsewhere in the AFM, such as "Emotional Pride Down." As at Guantanamo and at prisons in Iraq and Afghanistan, a "multidisciplinary" team implements the program, including a behavioral science consultant (likely a psychologist).

This is the lie. The Army Field Manual provisions, especially with those pesky footnotes like "Appendix M", leave a wide open path for torture. And this is exactly what Susan Crawford directly admitted to Bob Woodward. This is a significant problem, the very torture, and modalities thereof, that are so abhorrent are about to be ratified and enshrined into the ethos of the new Obama Administration. What is worse is that the media and the country as a whole are biting off on the proposition that the torture regime is being slain in the process, and that is simply not the case.

The Guantanamo virus is spreading. Its agent is Appendix M of the Army Field Manual. It will be very difficult to eradicate. It will require the effort of every person who believes in human rights and is opposed to torture to spread the word.

The AFM as constituted must not be made the "one national standard" until the virus is eradicated. Appendix M must be rescinded in its totality, and portions of the document, such as the section on Fear Up, rewritten. Otherwise, Bush’s and Rumsfeld’s attempt to sneak coercive methods of interrogation into the main document of human intelligence gathering used by the military will succeed.

Not all is bleak here. There is no question but that Obama and his team will have better policies and intentions than the Bush wrecking crew. That is a given. The mere desire to do better is a welcome improvement on the bellicose belligerence of George Bush and Dick Cheney. And the man President-Elect Obama has chosen to serve as General Counsel at the Department of Defense, Jeh Johnson, upon questioning at his confirmation hearing, exhibited a remarkable willingness to reconsider the entire torture regime policy instituted by the Bush Administration.

So, there is hope for a far better interrogation policy set from the incoming Obama Administration. But it is not enough to simply have the audacity of hope on the subject of torture, concrete steps need to be taken to prove to the American people, and more importantly the world, that the United States is turning its back on the policies and practices of the Bush torture regime. If the Army Field Manual is going to be the reference standard for US interrogation policy, then it needs to be retooled and excised of provisions like "Appendix M" and others that are glaring gaps allowing for techniques, and the compounding of techniques, that constitute torture.

The hearts of the incoming Obama Administration’s interrogation policy appear to be in a better, more righteous, place than the torture regime of the predecessor Bush gang; but let their words and deeds reflect it. If the US is going to rely on the Army Field Manual, fine, but they must promise to edit and remove black holes like "Appendix M", and others, allowing for continued torture programs. American law and policy must be written and enforced to be in compliance with international norms and conventions. Mr. Obama, tear down the American policy of torture, and do it clearly, unequivocally and now.

(graphic by the incomparable Darkblack)

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  1. lizard says:

    The entire concept of coercion, even the most mild, is simply ineffective. There is only one way to get a detainee to help you, and that is to make that detainee WANT to help you. The only way to make a prisoner give you good, accurate, truthful information is to make him WANT to give you that information. Not to get you to stop torturing him, but to get him to genuinely realize that the ideology that made him hate you in the first place was an error, and that the right side is YOUR side. Of course, this is much harder than simply beating the crap out of hem or deceiving him or intimidating him. If he hates you he will never help you.
    Coercion is ALWAYS torture, regardless of intent.
    Conversion works, coercion simply hardens the enemies resolve.

  2. skdadl says:

    Great stuff, bmaz and Kaye/Valtin.

    Am I right in thinking that Appendix M only appeared in the new AFM, in 2006? That there was no such appendix in earlier AFMs?

    • bmaz says:

      As far as I can tell, “Appendix M” was inserted in revisions made in the fall of 2006, and was done so for the express purpose of covertly endorsing the enhanced techniques of fear up, separation, etc. Basically, it is a designed play to make people think we are renouncing torture while still expressly doing just the opposite.

      • WilliamOckham says:

        This is correct. Most folks really aren’t even aware of this addition. Appendix M must be repudiated.

      • Valtin says:

        You are correct that it was meant to covertly add coercive techniques, covert in the sense that they hoped no one would notice. They were actually inserted in December 2005, and there was a controversy over them that went on for some months. My next article on the AFM will clear up the timeline questions.

  3. wavpeac says:

    Thanks…but ugh. Why can’t we grow up?

    It just seems like such a childish notion, simplistic, short term, without vision or courage.

    Torture as any kind of solution to the problem of violence.

  4. JThomason says:

    The entertainment society is happy with glosses. To empathize with the nature and effects of torture as a fundamental inquiry is something to be avoided.

  5. skdadl says:

    Another timeline question: the trainers who went to GTMO to teach the so-called reverse-engineered version of SERE techniques went at the very end of 2002, into January 2003. (See Valtin’s reference to “Biderman’s Chart of Coercion,” and background from this NYT article from last summer.)

    We know from leaks and from the DOJ IG’s report on the FBI at GTMO, though, that some FBI agents were sending questions and alerts back to Washington from the very beginning, early 2002, about what they were seeing DOD interrogators do and the whole process they were being slotted into. So where did the authorization even for pre-SERE interrogation come from? What kind of program was that?

    • WilliamOckham says:

      Actually the calls went out to the SERE trainers in December 2001, if not earlier. I’ll dig up the reference shortly.

      • WilliamOckham says:

        In the documents that Levin released last September in connection with his torture hearings, there is a fax from Lt. Col. Dan Baumgartner at JPRA (the SERE guys) to Richard Shiffrin at the Defense Dept.’s Office of General Counsel, offering up:

        Here’s our spin on exploitation. If you need experts to facilitate this process, we stand ready to assist. There are not many in DOD outside JPRA that have the level of expertise we do in exploitation and how to resist it.

        Clearly, Cheney, Addington, Rumsfeld, and Haynes were cooking up their torture schemes well before the ‘we don’t need no stinking Geneva Conventions’ memo in Jan. 2002.

        • skdadl says:

          Yes, I know that Shiffrin contacted Baumgartner in 2001 (I know those hearings almost by heart), and I know the legal memos started to come early on. But as you say, somebody had already decided on quite a bit before anything was codified and turned into a training program — a year before, in fact. I’d like to know the source, and what exactly they thought they were authorizing, on what basis.

          • WilliamOckham says:

            Well, that’s what the Bush/Cheney Administration has been busily obsfucating all these years. Here’s what we know. All the people known to have been directly involved in the earliest efforts to transfer the SERE techniques to U.S. interrogation methods attained their positions through the political patronage of Dick Cheney and Donald Rumsfeld.

    • RevBev says:

      Alot of SERE information/analysis was in that PBS “Torturing Democracy” piece we were discussing a couple of weeks ago.

      • foothillsmike says:

        The SERE training was the training for what happens if you get captured and was designed to prepare our people for what could happen and how to cope with it. My son went through that in the late ninetees and described it as definitely not fun. Interrogation training was to prepare future interrogators. The problems occurred when the SERE training was incorporated into the interrogation training.
        23 hrs & 47 min

      • bobschacht says:

        Yes, but I don’t think you can find the “Torturing Democracy” special on the PBS website. Fortunately, however, its on YouTube, IIRC. Mr. Google is your friend. And Mr. Google suggests the GWU website for the show, which has a lot of fabulous additional material related to the show.

        And yes, it is an excellent if somewhat chilling program.

        Bob in HI

    • Valtin says:

      The earliest I know was the approach to SERE’s umbrella department at the Pentagon, the Joint Personnel Recovery Agency, asking about interrogation techniques in December 2001 (see the Senate Armed Services Committee investigation). But we also know that torture was already happening in Afghanistan at least a month earlier.

      The U.S. has had a torture program in place for years, located in the CIA and codified in their KUBARK manual. They supposedly had foregone such techniques, but the institutional knowledge was there, if in fact the practice had never gone away. In the 1980s there was a scandal when the U.S. was caught out teaching their torture techniques to the Contras and certain Latin American governments.

      • bobschacht says:

        Valtin,
        Thanks for coming over here and commenting. You wrote,

        “the institutional knowledge was there”

        And that is what scares me about the CIA going forward. Even if the AFM is written to be airtight regarding torture, “the institutional knowledge” will still be “there,” ready to pull off the shelf at the order of some future(?) demented supervisor. It is going to take all of Panetta’s skill to purge as much of that as possible from the CIA, and yet I hope it is on his “to do” list.

        Bob in HI

      • skdadl says:

        Thanks very much for all you do, and for joining us here.

        Like Bob, I kind of run on the assumption that “the institutional knowledge was there” (I remember the School of the Americas and I don’t believe it ever really went away, just got a new name). For some reason, though, it helps my own mind when you or bmaz or EW and/or others can pin down the facts and tease out the logic of what was done and by whom, when and why. It just matters so much to testify as carefully as we can and as you do.

        • Valtin says:

          Thanks, it’s a real pleasure to be here, especially since the level of thought by the commenters is so high and sophisticated (and this compliment is meant to everyone here).

  6. WarOnWarOff says:

    Basically, it is a designed play to make people think we are renouncing torture while still expressly doing just the opposite.

    Kind of like inviting a fatass homophobic megachurch phony to give an invocation, then deflect criticism by inviting a thoughtful man of god who happens to be gay to also speak. OOPS. Then cut his mike, cut his mike. OOPS!

  7. acquarius74 says:

    Thank you, bmaz. Until I read your article I thought we had pulled back to some degree of human decency. No doubt the interrogaters will take Appendix M as their rule. More hidden lies and deceit put over on the American citizens. Chaney/Rumsfeld continued.

    Surely Gates had to sign off on this new, revised Army Field Manual. I don’t trust Gates – he’s just more devious than C/R.

    IMO, Obama should have cleaned house at DOD, top to bottom. Since he did not, does this mean that Obama has bought that smooth MO of Gates, the former head of CIA ?

  8. stryder says:

    Where Steve Griffin points out
    ” is a truth commission going to examine Democratic officials, including members of Congress, who specifically endorsed torture and harsh tactics after the attacks? Or, for that matter, Democrats who supported the Military Commissions”
    ” A truth commission aimed solely at the acts of Republicans would be rightly seen as hypocritical
    During Iran Contra the intelligence investigations were partly derailed by a counteroffensive launched from within the agencies.The NYT makes clear that intelligence officials are already in derail mode, no doubt supported by some members of Congress
    http://balkin.blogspot.com/200…..tions.html

    And Greenwald establishes that
    Binding U.S. law requires prosecutions for those who authorize torture
    http://www.salon.com/opinion/g…..index.html

    I wonder how this will all play out

  9. bigbrother says:

    Morning BMAZ

    “Appendix M” do you have a link to share? That may help understand the black hole.

  10. bigbrother says:

    When any bar is set behavior will tend somewhere below the bar, how far below is up to enforcers of that standard. Where is that addressed.
    The interrogators are patriotic veterans dealing with people/captives who have sworn to kill them and destroy our country. How do you deal with that issue? Screen the interrogators psychologically?

    • bmaz says:

      Well, that is one modality. The one I am primarily concerned about here is the proper “setting of the bar”. That would go a long way.

  11. Hugh says:

    I think all agencies should be put under the guidelines of the Army Field Manual and it should be explicitly stated in the Manual, if it isn’t, that no technique may be used which contravenes the Geneva Conventions and the Manual should be edited accordingly.

    • WilliamOckham says:

      The problem is that Appendix M actually says:

      Separation involves removing the detainee from other detainees and their environment, while still complying with the basic standards of humane treatment and prohibitions against torture or cruel, inhuman, or degrading treatment or punishment, as defined in the Detainee Treatment Act of 2005 and addressed in GPW Article 3 (Common Article III).

      and

      Members of all DOD Components are required to comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations. Proper application of separation as a restricted interrogation technique in selective cases involving specific unlawful enemy combatants and in accordance with the safeguards outlined in this manual is consistent with the minimum humane standards of treatment required by US law, the law of war; and does not constitute cruel, inhuman, or degrading treatment or punishment as defined in the Detainee Treatment Act of 2005 and addressed in GPW Common Article III.

      Then it goes on to authorize torture and cruel and inhuman treatment.

  12. eCAHNomics says:

    But if Obama doesn’t torture, how will he get those false confessions that he wants to use as an excuse to bomb somewhere? /s

  13. timr says:

    Query, Have you actually read the Army Field Manual on interrogations? Are you at all aware that it was the US Army that decided that they would not go along with the bush line on interrogations? Also, I have not seen any apendix M.
    I attended SERE-Survival, Evasion, Resistance and Escape- back in 1969 just prior to my deployment in Vietnam. This course was based on what was known about how Vietnam, North Korea, China and the USSR conducted interrogations. It was an extremely uncomfortable evolution, but necessary because of my security clearance.
    What the juvenile delinquents in the bush WH decided-and which was totally opposed by all the SERE instructors-was to take those techniques(esp the ones used by NK)-and make a program for the CIA to use in interrogations. As all the SERE people noted at the time, these techniques did not work, but that the NKs used them anyway. The USSR & China had pretty much given up on physical interrogations and had gone the psyops route by the 1970s which proved to be much more productive. So we took the techniques that even our enemies noted did not work very well and made them our main interrogation tools. I would also like to note that those who selected these methods were never participants in the SERE program(all instructors had to graduate from the course before they could teach it). Personally, I think that they-the WH flunkies who designed this program- were charter members of the famous 101st keyboarders. Or graduates of Liberty U. In any case, they are the ones who should be subjected to that which they approved.

    • foothillsmike says:

      It seems like anyone who knows anything about the subject is opposed to it and knows that it does not work. It also seems like the proponents of it are the ones who have never served. Last week on MSNBC @$$hole Scarborough was going on and on about how important it was to have available for use.
      23 hrs & 27 min

    • Hugh says:

      I am currently trying to download the text of the Manual from this site:

      http://www.army.mil/institutio…..2-22-3.pdf

      It is a 4.5 megabyte PDF and I have dial-up so I am not sure if I will be successful. But the first page has a sidebar table of contents and yes, there is an Appendix M.

  14. Hugh says:

    Thanks for finding the language. I am having trouble downloading the manual. My point is that the Manual needs to be revised to bring it into real, not stated, compliance with the Geneva Conventions. I agree just saying you are complying with Geneva doesn’t make it so.

  15. BOHICA says:

    Lets all read along.

    CONSTITUTION OF THE UNITED STATES OF AMERICA

    Article. VI.

    Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    Convention against Torture and Other Cruel, Inhuman
    or Degrading Treatment or Punishment

    Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1)

    PART I

    Article 1

    1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

    2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

    That is torture as defined by the “Supreme Law of the Land.”

  16. JoeBuck says:

    I’m not sure bmaz’s thesis is quite correct. This guy was subjected to the “frequent flyer program”, which made him severely sleep-deprived, as well as to extremes of heat and cold. I don’t think that the Army Field Manual allows either.

    When Judge Crawford said that the individual techniques were authorized, she wasn’t saying (AFAIK) that they were authorized in the text of the Army Field Manual, but rather that they had been authorized by the Bush Administration, and each individual one might not quite rise to the level of torture (though in my view, “frequent flyer” itself should qualify as torture if continued long enough).

    • bmaz says:

      Actually, what you describe as the “frequent flyer” program is indicative of the type of modalities that do come into play via Appendix M. This is exactly what I am talking about.

    • Valtin says:

      The AFM does allow sleep deprivation (4 hrs sleep per night for up to 30 days, with extensions possible). It gives no limitation to hrs of interrogation. It does allow for environmental manipulation of heat and cold, and changes of cell, as long as these are not deemed “excessive”. I noted in my original article: why is a section on a supposedly “single technique” like “separation” mentioning environmental deprivation, etc.

      From the original article (linked in bmaz’s article):

      The AFM’s Appendix M makes a lot of noise about forbidding sensory deprivation, then provides a definition of same that would describe none but the most extreme examples of sensory deprivation, all the while allowing its practice upon prisoners. Similarly, the document claims it is consistent with the Geneva Conventions and other human rights documents. It denies that prisoners held under separation will be treated to “excessive noise,” “excessive dampness” or “excessive or inadequate heat, light or ventilation.” But rather than appear convincing, these caveats seem to direct the interrogation team to just those kinds of procedures that should be used, as long as it is not judged “excessive.”

  17. dosido says:

    I continue to believe that the torture policies of Bush/Cheney are based on deeply ingrained sadism, pure and simple. Turns my stomach. If there is any motive, it is some kind of twisted aggression posing as revenge.

    • JohnJ says:

      In short, some people’s pornography.

      This is sexually gratifying to people like the big dick and frat boy. Where do you go when you can buy all the “normal” sex with men or women you want? The ultimate power trip; how unsatisfying to just ruin someone’s life by imprisoning them or simply executing them, they need to up it a notch.

      I guess we have to wait for the Europeans to act since the US no longer has the balls or the moral compass.

      How embarrassing to be an american nowadays.

  18. readerOfTeaLeaves says:

    I’ve become increasingly convinced that after the Bushies are gone, and moving forward, more speeches and documents will need to be subject to Wordles and other types of linguistic analysis.

    In that vein, the NYT has something today that really ought to be of interest to all EWheelies, and perhaps bmaz and/or others can see how the use of a database driven word analysis could shed more light on any number of social and political shifts.

    Compare, for instance, keywords for Lincoln, which highlights the word “constitution”. GWBush, not so much. You highlight words in Inaugural speeches by clicking on the small profile of each President on the timeline here:

    http://www.nytimes.com/interac…..ESSES.html

  19. Hugh says:

    For the purposes of this manual, sensory deprivation is defined as an arranged situation causing significant psychological distress due to a prolonged absence, or significant reduction, of the usual external stimuli and perceptual opportunities. Sensory deprivation may result in extreme anxiety, hallucinations, bizarre thoughts, depression, and anti-social behavior. Detainees will not be subjected to sensory deprivation.
    M-27. Physical separation is the best and preferred method of separation. As
    a last resort, when physical separation of detainees is not feasible, goggles or
    blindfolds and earmuffs may be utilized as a field expedient method to generate a perception of separation.
    M-28. Objectives:
    • Physical Separation: Prevent the detainee from communicating with
    other detainees (which might increase the detainee’s resistance to
    interrogation) and foster a feeling of futility.

    p. 354 of the pdf

    You have to wonder how these people think. Sensory deprivation is bad but blindfolds and earmuffs are OK but these engender precisely the sensory deprivation the Manual says are forbidden. And how is a feeling of futility not “significant psychological distress”?

    • BOHICA says:

      From my post above:
      …the term “torture” means any act by which severe pain or suffering, whether physical or mental….

      Clearly these actions are not allowed. Or are they going to parse the words “significant” and “severe” to justify their actions?

      Bastards.

    • Valtin says:

      Most people may not know this, but studies were done in the 1960s that showed that putting blindfolds and earmuffs on subjects for even 8 hours caused significant psychological/emotional distress, and this was not in a prisoner environment. Partial sensory deprivation can cause almost as much distress as total sensory deprivation, although the effects are variable from individual to individual. They are also made worse when combined with other “techniques”. This, for instance, is what happened to al-Qahtani, as bmaz points out.

  20. JohnJ says:

    Is this a coincidence that this comes about now that almost all the WWII vets are gone? Would the post WWII America have allowed the same thing they thought they were dying to prevent to be practiced here when they returned?

    I thought this was one of the main reasons that Saddam has to be stopped, he was torturing and killing his own people.

    This is looking like he just wasn’t torturing and killing the people we wanted.

  21. Mary says:

    28 – a lot of Army intell did not want to go along with the Bush interrogations, and their top JAG (along with the top JAG from every branch of the military) resisted as well, but in the end, they lost.

    39 – that’s an interesting point and on that Woodward either asked no follow up or just did not report on. What happened originally is that the OLC opinions didn’t (supposedly) attempt to address the UCMJ issues and that topic was dealt with via the Beaver Memorandum – which said if a superior officer ordered you to, you could violate the UCMJ with impunity aka the Nuremberg Defense.

    You have to believe that the Hamden decision cut that off at the knees, but then Congress went back with the MCA and it’s DTA bootstrap and gave amnesty to anyone who needed to invoke the Nuremberg defense.

    SO what Woodward didn’t ask was – when you say authorized, do you mean by the UCMJ?

  22. Valtin says:

    I want to note that alone of all the human rights group, Physicians for Human Rights opposed the inclusion of Appendix M in the Army Field Manual from the very beginning. The other major human rights organizations have played an equivocal role. I believe they were really trying to change U.S. policy for the better, but for various reasons allowed themselves to sign off on the document. I’ll write more about this later.

  23. Mary says:

    Oddly enough, the Financial Times seems to have a better grasp on when and where a “war on terror” should have been declared than Eric Holder does:

    http://www.ft.com/cms/s/0/e3d0…..ck_check=1

    But his war of choice on Iraq, and the very concept of the global war on terror, misidentified the nature of the strategic threat facing the US and the liberal international order of which it is the lead custodian.

    I believe Holder’s testimony is that we just didn’t declare that war early enough.

  24. Mary says:

    I skimmed through a few parts of the Army Field Manual from the FAS site, and I have to say, it’s not just Appendix M that needs to be revisited. It seems several sections really just don’t deal with the kinds of things that are being done in our “ocupations” and “war on terror” including things like turning over to the military (or the military going out and buying directly) “purchased” suspects from various, non-battlefield environs. Or the fact that once you have someone in GITMO, you aren’t in “the field” anymore and the rationale for some of the field procedures is lost, especially where you have extreme likelihood of civilians and children among your “detainees.”

    If they want to make our response to Bin Laden et al military, then we need to rewrite a host of laws and procedures, including that manual (if it is going to be used as the basis for handling people being administered to us as a police power occupying force) and domestic laws to make them actually address the situations we are consciously creating.

    • bmaz says:

      I skimmed through a few parts of the Army Field Manual from the FAS site, and I have to say, it’s not just Appendix M that needs to be revisited.

      That is absolutely correct. I just could not go into detail on all of the different provisions that offend, else the post would be a treatise. This is why I made several references to “Appendix M and other provisions”, or similar wording, in several places.

    • Valtin says:

      You are correct, Mary. And I hope no one gets the idea that simply changing Appendix M will be sufficient. Or even that yet another rewrite of interrogation procedures will be enough. For instance, the military has no control over the habeas ban.

  25. rkilowatt says:

    What is so confusing about lying? or torture? What kind of lawyer person fails to grasp? Harvard U. and Regent U. are strangely lacking.

    Did John Yoo ever read Orwell’s Animal Farm? or 1984?
    Did GWBush? Did you? I specifically mean the books.

    The movie-versions were heavily altered to hide Orwell’s meaning, at the direction of the CIA who bought the rights to make the movies. Each movie ends completely differently from the original. [That is a warning to beware!]

    George Orwell, of course, was the pen-name of Eric Blair.

  26. rkilowatt says:

    “Debating” is the art and practice of making lying O.K.

    As taught in schools, debating is a contest to cause effect; to impress, not a search for truth.

  27. Mary says:

    53 – and YEARS of that kind of treatment was no bar to a “civilian court” ruling that Padilla’s trial could go forward or prevent him from providing assistance to counsel.

    So booyah for the civlian courts and the precedents that the Bush DOJ has salted them with over the last few years.

  28. JohnLopresti says:

    I wonder when G8 got any briefings on the proliferation of the various permutations of torture. The FBI IG report sounds like it is declaring the final IG report version for publication is confined only to FBI elements interfacing with what occurred wherever FBI representatives physically were present, but a mass of other interviewing transcripts and reports deliberately are excluded by setting the scope of the final IG report as narrowly FBI-service-specific as possible. Saying anything about cruelty as policy in venues far from any ‘battle’, to a congressperson has got to be difficult for any emissary to a briefing presenting the administration’s initiatives as sharing in comity with the intell committee ranking members of both parties, plus the ex officio congressmembers: in other words, civilians, the folks whose constitution writing traditions are founded in opposition to human rights violations. Congress likely is going to remain reluctant to divulge what it knew and when, among G8 persons briefed; or the political communications which the administration likely utilized to assure suppression of leaks. We know the threats which abounded when various newspapers began to publish details as programs became too amorphously expanded during some phases to keep secret inside the US or in ‘old Europe’ and some ‘newly independent states’.

    Internationally, the pursuit of a state torture policy likely seemed easiest to the propounders if exercised upon prisoners whose home countries also were part of a torture ethic.

    • Palli says:

      As Dosido and JohnJ above have said, torture is sadistic pornography. Pictures were taken as the pleasure of the tongue torturers at home as for forensics documentation. In fact, since it was known what they were doing was illegal pictures were inadvisable. If a college student is capable of branding his fraternity brothers, I have little doubt that torturing enemies would have been bothersome. if we ever find the WH emails, some will be records of torture, bloody dirty pictures.

  29. phred says:

    Great post bmaz. And thanks Valtin for your efforts to enlighten the rest of us on what the shorthand “US Army Field Manual” actually stands for. Yet another reminder that we can take nothing, nothing at all, at face value if it is spoken by a politician and/or repeated by a journaliststenographer. I am trying to be hopeful, but after all these years of betrayal by the political class, hope is a tall order indeed.

  30. stryder says:

    I wonder if Chaquita handed out field manuals to all the farc members as guidlines for union busting.All these rules and regs are only applicable to US reps.If there has been one lesson learned for me it’s the ability to circumvent statutes and laws.How do all these regs apply to outsoursed contractors or private corps operating in other countries with private malitias doing there dirty work and dissapearing anyone who opposes them?

  31. Oilfieldguy says:

    One would suppose the chinese water torture method would be permitted by merely changing the name. No one would be concerned with the terror of drowning by applying a single drop at a time on ones forehead. However, the duration does have cumulative effects that most certainly impacts “health.”

  32. WilliamOckham says:

    Here’s some good news from Politico:

    Georgetown source forwards over an email from that school’s administration, reporting that Professor Marty Lederman’s class will be canceled — because he’s joining the Obama administration.

  33. 4jkb4ia says:

    Excellent post.

    (Irresistible)
    Bernie Miklasz: And yes, the Arizona Cardinals really are heading to the Super Bowl.

    This is akin to saying that the Chicago Cubs are nine innings away from winning the World Series.

  34. JohnLopresti says:

    I think several academics during Rumsfeld’s DoD tenure in the departing administration documented the bureaucratic processes which were the field manual, its addenda, and the existence of secret chapters. The FBI IG report mentioned some of those amendment processes. At one juncture during the DTA, MCA congressional processes I recall one academic stating there was no contemporary online source of the actual manual. Maybe the textbooks will call that the muddle defense when the chronicles are written. Except for the rare project by a substantial news entity, very few news reports list more than tagline pseudopithy statements to exculpate what seems to be emerging to have been a much more mundane plodding and formal revisionism on a scale reminiscent of some sinosoviet historical documents I studied a while back; the 2008 executive summary redacted at 19 pp from the Senate Armed Services Committee, for the unpublished 200+pp. report itself, was the closest approximation I have seen to a congressional understanding of the torture paradigm the administration deployed as policy. There are several court cases that have attempted to pry open the dynamics of the processes by which even the field manual was shifting content, depending upon requester; I think two such cases have been one known as Padilla v Yoo, and the other was defendant’s MTD in US Distr CT SD-FL in re USA v Padilla (2007). Maybe the court cases such as these will arrive at naught. My sense is a lot of the laborious work is at the tiers below top appointee, which accentuates the importance of balanced nominations to effectuate change at that subliminal level. If MartyLederman, and congressman Panetta can provide leadership reinforcement to extirpate the surreptitious processes that juiced the field manual, government will be stronger for the effort. But Kyle Sampson had access to the vendingmachine with the gum, and distributed it widely in the now exiting administration. Congress may opt to see it and ungum the works, with voters’ help. Sometimes the military’s own historians do well with their own recordkeeping, but I am not sure the outcomes are much better. Reading Levin McCain on the Armed Services hearings about rendition and the memos that were its shield is a lot more modern prose than noble Winthrop prose discussing martial law during the US postrevolution epochs [large file]. I guess the fairest way of reading the sources is in combination and with plenty of contrasting of their renditions of history.

  35. Mary says:

    67 – I understand. And a lot of the issues have to do with the fact that the military is being used in so many settings as a police power and charged with doing things that are not a part of what should be its nomral functioning, so how much you change some of it would be completely dependent on how it is perceived that we are going to use the military over the successive years. Unfortunately, I think it’s going to continue to be used as a quasi-police power, but with with judge/jury/executioner status over civilians within the scope of that power, for a long time.

    But you have to break the problems down into the components and I think this post is great for that purpose and deals with one of the biggest, most important of the pieces.

  36. Mary says:

    70 – that’s good news on the “better quality of lawyer” front for the administration, not super great news for “prosecute the prior administration criminals” front, since he believes in OLC powers of absolution.