Jim Haynes’ Request: A[nother] List of Techniques–Including Waterboarding

There’s an interesting footnote in the Senate Report on Torture that suggests Jim Haynes personally went fishing for a description of waterboarding so it could be added to techniques approved by OLC.

Footnote 179–describing JPRA (the SERE people) receiving a request for descriptions of SERE techniques from DOD’s Office of General Counsel reads,

Committee staff interview of Lt Col Daniel Baumgertner (August 8, 2007); see also email from Col Moulton to [redacted] (June 30, 2006) ("We [JPRA] initially received a call from OSD General Counscil (sic) requesting information about resistance techniques used against U.S. POWs. I believe this was early in Operation Enduring Freedom. We were requested to provide that information within hours and were authorized by JFCOM to forward it to OSD. … Once we understood what OSD/GC was looking for, we provided a[] list of techniques.")

There are several things about this note. Colonel Randy Moulton, the head of JPRA, presumably in response to a DOD IG request, seems to refer to the December 2001 request from DOD’s General Counsel (since that would have been "early in Operation Eduring Freedom"). He goes on to describe the process by which Jim Haynes’ office asked for a list of techniques, suggesting that JPRA at first didn’t understand what Haynes’ office was looking for. And note the bracket: "a[] list of techniques." That suggests a word beginning with "a" was shortened–the most likely possibility being "another." That suggests that JPRA may have submitted a list of techniques, subsequently learned that Haynes’ office was looking for something else, and then submitted a second set of techniques. 

That’s interesting because there’s a difference of recollection between Richard Shiffrin, then DOD Deputy General Counsel in charge of Intelligence, and Daniel Baumgartner, Chief of Staff for JPRA, that pertains to these requests.

First, the timeline the SASC Report describes surrounding the list of techniques is:

July 25, 2002: Shiffrin requests information  for a "list of exploitation and interrogation techniques" from Baumgartner.

July 25, 2002: Baumgartner writes a memo in response to Shiffrin including lesson plans and describing JPRA’s expertise on exploitation.

July 25, 2002: "Prior to the memo being delivered" to the General Counsel’s office, Shiffrin calls Baumgartner again to ask for additional information, including a list of techniques used by JPRA at SERE school.

July 25, 2002: The memo is "delivered to Deputy General Counsel Richard Shiffrin by a JPRA employee." 

DoD General Counsel Jim Haynes did not recall whether or not he saw the memo at the time, but said that "in all likelihood," he would have received the memo, and that the timing of the memo coincided with his recollection of his meeting with JPRA personnel.

July 26, 2002: A second memo completed and delivered to Haynes’ office. This memo–with attachments including a list of techniques, a memo on psychological effects of SERE techniques, and the CYA memo noting that torture is unreliable–would be sent to DOJ and CIA, and would eventually serve as the basis for the August 1, 2002 OLC memo authorizing torture.

Now onto the difference of recollection between Shiffrin and Baumgartner expressed at the SASC hearing on this last summer. Baumgartner claims that Shiffrin called, the July 25 memo including psychological interrogation plans was delivered, Shiffrin called back, then "a few days later" Shiffrin called back and asked for a list of physical pressures. 

With respect to Mr. Shiffrin’s July 2002 request, he contacted the JPRA and asked for information on interrogation resistance techniques used against U.S. prisoners of war. I asked my Commander, Colonel Moulton, for approval to support the request, which he granted. I then passed the request for support to our higher headquarters through USJFCOM J3 for approval. After USJFCOM approved supporting the request, I asked our resident JPRA experts for assistance in obtaining the information Mr. Shiffrin requested. My response memorandum to Mr. Shiffrin included a couple of papers on exploitation, and interrogation and lesson plans used to train our U.S. personnel (i.e., potential isolated personnel) in the psychological aspects of detention, exploitation-threats and pressures, methods of interrogation, and resistance to interrogations. After having the package delivered I believe there were some phone calls between Mr. Shiffrin and me to clarify parts of the package (I don’t recall what the specific questions were, but essentially they involved follow-up questions about the material I sent).

A few days later I received another phone call from Mr. Shiffrin requesting information on the use of physical pressures, which, after notifying Colonel Moulton, I provided. The information on the use of physical pressures in our personal recovery training consisted of a memorandum with information compiled from JPRA experts and one paper from an Air Force Survival, Evasion, Resistance, and Escape school psychologist, Captain (Dr.) Jerry Ogrisseg, on the effects of resistance training. I followed- up with one or two phone calls to make sure I had provided the information Mr. Shiffrin requested. I do not recall any further communications with Mr. Shiffrin or other DOD, OGC personnel about these issues after the July 2002 requests for information. [my emphasis]

Note some clear inaccuracies: the dates and the order of the phone calls (which Baumgartner should have known–the dates on the memos make it clear this all happened on July 25 and July 26). 

But the really key difference is that Shiffrin says the request for more information came not in phone calls from him, but in a meeting between Jim Haynes and JPRA (Shiffrin suggests Baumgartner was at the meeting). And the language of the memo supports Shiffrin’s version.

Mr. SHIFFRIN. The memo refers to a follow-on question resulting from a meeting with JPRA and the General Counsel, OSD General Counsel. That would be Mr. Haynes. I’ve never met, in person, Colonel Baumgartner before. I did not attend the meeting with Colonel Baumgartner. So, to the extent these memos are responsive to requests at a meeting, I didn’t attend that meeting.

Chairman LEVIN. All right. I think Colonel Baumgartner was referring to a phone conversation.

Mr. SHIFFRIN. He did. But the memo itself says, ‘‘This is follow on questions from a meeting.’’

Chairman LEVIN. I think, though, his testimony relates to a phone conversation.

Mr. SHIFFRIN. I understand. [my emphasis]

Now we know the meeting existed (Haynes admitted to it in a staff interview last year). So all the evidence suggests that Shiffrin is right in this disagreement–the request for a list of physical techniques came in a meeting with Jim Haynes directly (I’m guessing Baumgartner was protecting Haynes with his testimony).

Now look at the wider context of this. We know from the Bybee Memo that OLC gave CIA oral advice on the use of torture twice before it came out with the memo. The SSCI Narrative makes it clear that the first oral advice approved a range of techniques, while the second on approved waterboarding specifically.

On July 24, 2002, according to CIA records, OLC orally advised the CIA that the Attorney General had concluded that certain proposed interrogation techniques were lawful and, on July 26, that the use of waterboarding was lawful. OLC issued two written opinions and a letter memorializing those conclusions on August 1, 2002.

In other words, OLC had already approved "certain proposed interrogation techniques" before Shriffrin’s first phone call to Baumgartner. The day after that approval, Jim Haynes’ office makes a high pressure request to JPRA for more information, which is delivered that same day. But then, apparently in a meeting between Haynes and Baumgartner, Haynes made it clear precisely what he was looking for: physical techniques. Physical techniques specifically including waterboarding.

All this is significant for several reasons. First, the timeline makes it clear that CIA already had pitched waterboarding to OLC–the request for a description from JPRA served either to make it look like it came from reverse-engineering SERE internally (as opposed to Mitchell, working off a purported al Qaeda manual), or because they wanted to hide the description they already had of waterboarding. Jim Haynes’ personal involvement (predictably, he can’t remember any of it) also shows how central the "War Council," including David Addington, John Rizzo, Alberto Gonzales, and John Yoo, was to this process. Rizzo had apparently already made the request for waterboarding, but he had to get Haynes involved at the last minute to somehow make waterboarding appear to be based on scientific principles and on SERE. And when JPRA didn’t give Haynes what he wanted the first time, he explained to them, face to face, precisely what he was looking for.

62 replies
  1. WilliamOckham says:

    Now we’re closing in on the truth. The ‘reverse-engineering of SERE’ training is largely a cover story. Cheney, Addington, Haynes, et.al. had a list of techniques they wanted to use and they manipulated the bureacracy to make it appear that it came from JPRA. The biggest lie they’ve used is the ‘bottom up’ line. This was a completely ‘top down’ policy decision directly from Cheney and Bush.

    • bmaz says:

      Yep, they wanted to do it. It is how they view things being done in their worldview. This was their idea of what the US is and how it should act. My guess is they would have gone this route for some reason irrespective of 911. It is who they were and are. And exactly why the whole deal needs to be cracked open, displayed for what it is and accountability had for once and for all or the disease will remain in our political body all too ready to spring forth again.

      • Minnesotachuck says:

        My guess is they would have gone this route for some reason irrespective of 911. It is who they were and are.

        Yup. This was all too predictable when you put a guy at the top who as a kid got his jollies by putting firecrackers up the asses of frogs and lighting them.

  2. scribe says:

    You note:

    First, the timeline makes it clear that CIA already had pitched waterboarding to OLC–the request for a description from JPRA served either to make it look like it came from reverse-engineering SERE internally (as opposed to Mitchell, working off a purported al Qaeda manual), or because they wanted to hide the description they already had of waterboarding. Jim Haynes’ personal involvement (predictably, he can’t remember any of it) also shows how central the “War Council,” including David Addington, John Rizzo, Alberto Gonzales, and John Yoo, was to this process. Rizzo had apparently already made the request for waterboarding, but he had to get Haynes involved at the last minute to somehow make waterboarding appear to be based on scientific principles and on SERE. And when JPRA didn’t give Haynes what he wanted the first time, he explained to them, face to face, precisely what he was looking for.

    This behavior is also consistent with an initial oral advise from OLC to the Addington-Rizzo-Gonzo-Yoo cabal that, no, waterboarding was too far, which advise the client cabal deemed unsatisfactory. That advise was then followed by JPRA going back and coming up with a “reverse-engineering” of SERE program(s) to support a conclusion that waterboarding would not be unsatisfactory, which pleased the client cabal no end.

    I kinda like my idea a bit better, because a “No, then yes” like I describe indicates JPRA recognized the illegality of waterboarding – a lot of precedent in US and foreign courts supporting that conclusion – and then succumbed to pressure from the politicos at the top, further enmeshing all of them in their own guilty knowledge.

  3. LabDancer says:

    Awesome analysis: perhaps not sexyshockworthy so easily adopted by the simple-minded like when you spotted the big numbers — but at least as crucial in boxing in the torture gang. Now, who exactly among Cheney, Haynes, Gonzales and Addington would have had such intimate acquaintance with the most arcane aspects of the CIA?

      • LabDancer says:

        To recapitulate the choices:

        [1] PapaDick, torture history buff [Jeff Kaye]
        [2] Addington career careening between the CIA and PapaDick [LabDancer]
        [3] Son of Iran-Contra [emptywheel]
        [4] all of the above.

    • joanneleon says:

      Who was most familiar with the arcane techniques of the CIA?

      Well, Daddy Bush headed up the CIA for awhile. Did he tell Jr. about those things?

      I’m inclined to think that a lot of people knew about the techniques though.

  4. Palli says:

    So the administration already had an encyclopedic knowledge of torture…funny it wasn’t brought up in the 2000 debates. Probably would have been more useful than hearing they were not nation-builders. Their demonic nature may not have needed a 9/11.
    Thank you all for gathering the pieces…

    • freepatriot says:

      So the administration already had an encyclopedic knowledge of torture

      and the maps of Iraqi oil fields

      those didn’t come up in any debates either

      • Palli says:

        and all the blackmail material necessary to begin
        and a long list of contractors who vote the right way

      • Mary says:

        Good thing Cheney is wanting transparency and the release of his energy task force meeting info, huh? /s

  5. skdadl says:

    And note the bracket: “a[] list of techniques.” That suggests a word beginning with “a” was shortened–the most likely possibility being “another.”

    You really are Sherlock, EW. I like to think of self as close reader, but you are uncanny.

    Funny coincidence: I just went to check Haynes’s wiki entry for something else, and I noticed that tomorrow will be the anniversary of his new employment at Chevron.

  6. drational says:

    I think they needed to get a description of waterboarding as “harmless” so the eggheads at OLC would sign off on it. They found just the right yahoos at the SERE program to draft “harmless” descriptions cuz their experience was with 20 seconds of boarding 25-year old physically fit SEAL candidates. I think they gave Yoo and Bybee just what they needed for loopholes.

    In the end they fucked themselves cuz Yoo’s torture definition excluded techniques that were not harmless. As soon as their real world use of the board was seen and was discoverable, they all realized they were in trouble.

    • Mary says:

      Your point about Yoo’s description is why I’ve pushed the point a lot as other memos were starting to come out that none of them could qualify as reliance memos because of the ommissions of facts. There’s just no way they would stand as reliance memos and so with all the talk about the “good faith reliance” someone had to ante up at some point with memos that incorporated a facts section.

      Anyone who has worked with opinions for reliance knows that’s when things get tricky and lawyers, even bad ones like Yoo and Bybee, finally start to get a little careful. Until you get Bradbury, who buries into his reliance memos in May some things that show how desperate the circumstances and just how far he was willing to go to be complicit. Especially where he moves from authorizations of specific things and combinations for specific high value detainees (for whom high ranking operational roles in al-Qaeda are included in the definition) to authorizing combinations of techniques for uses on any “detainees” whether they are enemy combatants or material supporters of terrorism or not.

      That’s the place that OLC wasn’t willing to go for a long time (and why they tried to get Congress to go there for them, with legislation that was going to make a CSRT determination of enemy combatant status dispositive, even when there was mounds of evidence and court rulings to the contrary). Bradbury went there. He tried to bury it some, but he went there.

      IMO, his stuff is so egregious that it makes Yoo and Bybee look good by comparison.

      • drational says:

        Agreed RE Bradbury. Especially because by then the OMS had weighed in and said if you want to waterboard, you have to put the detainee in the equivalent of an ICU. They also had the experience of near-drowning of Zubaydah and /or al-Nashiri memorialized in the IG report. Now we know why Goldsmith didn’t put in a replacement memo- he did not possess the sadistic genius of Bradbury.

    • cbl2 says:

      forgive me all, I am 2 days behind – and I rarely comment on these smart kid threads, but drational’s comment above reminded me of something I saw late last night –

      Mark Danner’s Op Ed from yesterday

      his comments about Church Commission genesis of the OLC memo’s is something I read here long ago – was just stunning to finally see it in TradMed print

      y’all are the best

  7. Jeff Kaye says:

    Great work, Marcy! I think you have reconstructed the series of events surrounding the production of the Bybee memo. And William Ockham is correct: this was not reverse-engineering (at least in this case), it was leaning hard on JPRA i.e., on Baumgartner, who’d already proven himself and his agency pliable on other torture matters. Then Baumgartner leaned on Ogrisseg to put a statement on waterboarding in his report that would minimize its effects, which Ogrisseg did (although I’d like to see exactly what Ogrisseg wrote in that memo). Ogrisseg’s testimony that he told Baumgartner, “Isn’t that illegal?” demonstrates their guilty foreknowledge, as scibe notes.

    In the case of waterboarding, then, its clear that Cheney et al. drove the techniques.

    But here’s where the politics of torture, if you will, get grotesquely interesting. Because JPRA had few problems (although they had some) reverse-engineering other torture techniques (sleep deprivation, isolation, “deprivations”, manipulation of environment, use of phobias, etc. — you know, all the old CIA/KUBARK techniques). But waterboarding would be seen as too disruptive to the senses, too gross a technique, if you will, by the experts. Even most of the SERE schools had dropped it because it was too dangerous to control, too damaging, the same reason torturers who were scientific and “advanced” in their technique would eschew such procedures.

    What made Cheney and the rest of them think waterboarding would be effective? It doesn’t make sense that they were advised that it would be, especially now that we know they produced their own “advice” for the Bybee memo. What made them even think of waterboarding? Is Cheney a historian of torture?

    I suspect that it’s possible that waterboarding was added in at the request of the CIA, and the reasons were explained to Cheney, who went along with it. Was the waterboarding an attempt not to get information, but to psychically destroy the minds of KSM, Zubaydah and al Nashiri, the three who supposedly were waterboarded?

    183 times to be brought to the brink of feared death is almost impossible to be believed, but appears to have happened. What psychological effect would that be presumed to achieve?

    What it is most reminiscent of, for those who have studied the history of U.S. torture research, is Ewen Cameron’s psychic driving. Cameron would electro-shock his subjects hundreds of times within a relatively short period of time. The purpose was to wipe out memories and to implant new “memories”. It didn’t work, although it did produce trauma and memory and terrible psychological problems for its victims.

    Was the waterboarding meant to produce a disabling effect, not get information, or even false confessions?

    Another question? Why did the waterboarding have to happen when it did? What led the CIA to use that technique at that particular time?

    • lysias says:

      If you wanted detainees not to reveal some inconvenient facts, you might well want to disable their memories and capacity to talk and reason. And also make sure they never got into a trial, at least in a conventional courtroom.

  8. JTMinIA says:

    Wouldn’t it be interesting if the first list the SERE people sent to Haynes only discussed the methods that produce reliable information, while the second list (finally responds to what is asked for) discussed the methods that will allow you to get someone to say anything that you want them to.

    Now, why would anyone – between the time of 9/11 and the start of the war – be interested in methods for getting people to say what you want them to?

    Gosh. I can’t think of any. /snark

    • emptywheel says:

      Isn’t that sort of the suggestion? It LOOKS like Baumgartner’s first memo was psychological techniques (see my bolding). And they went back and said, “Nope, give us waterboarding.”

      Though, to be sure, psychological techniques can be as good at generating false confessions–the guy whose false confession SERE actually was a response to said the pscyhological techniques were more effective than the physical ones.

      • behindthefall says:

        Perhaps there’s something in addition to the search for false confessions. Perhaps there was a need for something that would be visually dramatic, something that would convey the sense of violence being done to enemies and would satisfy a desire for revenge. I keep coming back to the story that Bush’s aides couldn’t get him interested in reading reports about Katrina as it was happening and so cobbled together a video presentation. Add in exploding frogs, cheap shots in sports, the use of nicknames to demean and humiliate … perhaps the intended viewership would not have been moved or convinced by the sight of two men talking to each other across a table.

      • JTMinIA says:

        You’re concentrating on waterboarding (for very good reason), but there might have been others. My general point in the last 24 hours has been: they were not interested in methods that extract reliable information; they were interested in breaking people. But the SERE people might have made the (false) assumption that the CIA and DoD would want reliable information, so their first list provided the methods that be best for this. Then, in private, with no paper trial, they were told that what was needed were ways to break people, instead, so they had to make a second list.

        Yes, the sequence of events is entirely consistent with a focus on just waterboarding, as you are doing. What I’m saying is that one might be able to infer *why* the NeoCons wanted waterboarding by comparing the methods on the two lists. In other words, and to use a term that getting abused quite a bit: we could reverse engineer why they wanted waterboarding from the methods on the first and second lists.

        As I said yesterday, that we tortured is only half of the evilness. If I’m correct that we tortured to extract a false confession that Iraq was involved in 9/11, then the evil increases several orders of magnitude.

        • emptywheel says:

          Agree on techniques, absolutely. Given some of the discussions, I think sleep deprivation may have been just as sensitive, as well as walling.

          And I’m working on the false confession angle, but it’s going to take a week or so.

          • JTMinIA says:

            One other possibility WRT to the fast request to SERE. Maybe this was done because one or more people had qualms when Mitchell (and Jessen? and Rizzo?) came back and said: “we gotta do X, Y, and Z” which included things that were recognized (by anyone not totally crazed at this point) as torture and/or war crimes. Because of the relative outsider status of Mitchell et al., this triggered a request to inside experts as to whether X, Y, and Z would really work. In other words, they had already worked up the plan to torture but sort-of lost their nerve for a moment (maybe pushed by one of the remaining moral people in the organization). So they got a “second opinion” from SERE. But this had to be a guided-to-the-correct-conclusion second opinion, which the first reply from SERE was not.

            Later, this appeal to SERE was used as evidence that X, Y, and Z aren’t torture … after all, Your Honor, we do it to our own guys. (This argument, by the way, that anything the US does to it’s own people can’t be illegal or immoral would be funny if the history against the idea weren’t so sad. Can anyone say Tuskegee Syphilis Experiment? How about Willowbrook Hepatitis Study? OK, fine, I’ll use the easy one: MK-ULTRA.)

          • Mary says:

            On the false confesson front, I think you almost need to tie in al-Libi. Once they got him, the fact that they interacted with military started to cause problems, with DIA in particular not buying in on what was being coerced out and putting pressure on CIA to have to compete on the analysis. By then, with the DIA involvement and record, it became easier to launder the info as coming through Egyptian intel, with no DIA review of that sourcing. Then there’s how he disappeared so no one could review what was done.

            Add the other dissenting intel – like al-Deen disappeared to Syria when his intel conflicts with the narrative they want for Zubaydah; like CIA’s commitment to keeping FBI agents who knew the most about some of the al-Qaeda operatives and structure being barred from the interview process for the minimal benefit of protracted torture programs; like the dump&death of Memon whose info would not only have conflicted with KSM’s confessions on some fronts but whose condition would have raised questions on his crediblity; etc.

            And just why were the al-Qaeda detainees held for so long? If all the techniques were “legal interrogation” per the OLC, why weren’t they brought back to the US or GITMO for trial or military commission after their intel was obtained? It’s almost as if they had served their use – we had the Iraq war, no one really cared about 9/11 and Bin Laden

        • cinnamonape says:

          This is a good point… SERE’s main goals are to produce survivability in those who are captured by a whole range of prospective captors. The military totally revised their training protocols since the Vietnam war after finding that active resistance was increasing mortality to no good end. Both the North Koreans and North Vietnamese were not really concerned about getting “intelligence”, since most of the valuable stuff was compartmentalized away from those most likely to be captured in combat. They wanted confessions and show trials for propaganda purposes. The old “name, rank, and serial number” limitations resulted in dead soldiers, and a collapse of morale.

          Thus more subtle resistance techniques were developed…cues in the confessions, particularly if recorded, that indicated that it was coerced (I recall that one USS Pueblo captive confessed to doing “very, very naughty things” on a televised confession~ indicating that confessions in the native language can have subtle meanings to listeners that an interrogator might not detect).

          One great risk in developing methods that integrate techniques that would thwart our modern methods of resistance/compliance by our own military…is that these would be learned by our enemies. If a subject is later freed, because of lack of evidence, a hostage exchange, or because they are innocent…they might reveal the methods of torture used on them. That would allow Al Qaida, North Korea, etc. to learn the countermeasures to US resistance/compliance methods. It would increase the level, degree and sophistication of tortures our own troops would face in the future.

          Cheney-Bush…blowback coming to the next conflict near you.

          • JTMinIA says:

            I have some weak memory of a sailor blinking in Morse while giving a taped, coerced “confession.” But the odds are about even that this is from a bad movie or Le Carre novel, as opposed to real life.

            (Please note that “bad movie” and “Le Carre novel” are not exclusive, as proved quite well by Ralph Fiennes.)

          • Jeff Kaye says:

            Both the North Koreans and North Vietnamese were not really concerned about getting “intelligence”, since most of the valuable stuff was compartmentalized away from those most likely to be captured in combat. They wanted confessions and show trials for propaganda purposes. The old “name, rank, and serial number” limitations resulted in dead soldiers, and a collapse of morale.

            They may have wanted confessions and show trials, but they also wanted confessions, and they got some, too. I’ll produce the evidence in an article quite soon here at FDL.

  9. bmaz says:

    July 25, 2002 looks like a very busy day that must have been devoted almost exclusively to torture planning by the involved individuals. For demonstrations to juries and other determiners of fact, trial lawyers sometimes create something known as “Day In The Life” videos of their clients (or others) to demonstrate how certain events impact them. Imagine a day in the life video for these guys for the day of July 25, 2002. Morbid.

  10. Teddy Partridge says:

    As President of Halliburton, Cheney did lots of business with Middle Eastern despots, whose intelligence agencies are all about torture. Perhaps that is when he became a devotee of such methods?

  11. bmaz says:

    Is Cheney a historian of torture?

    Between him and Addington, you gotta figure there is enough sickness to cover that I suppose.

  12. Mary says:

    I think vis a vis Haynes it’s helpful to remember that he had at least two layers of restrictions to get around, over and beyond what the CIA had, in his advice to Rumsfeld (including his Nov 2002 memo that put waterboarding in Category III of “legally available” options that he thought were ok, but should not be given carte blanche for application wihtout authorizations the way I and II were approved.

    In addition to the laws that OLC was pretending to address in its memos, the President had already issued a public “policy statement” with respect to the Armed Services. In Feb 2002 he directed “humane” treatment for captured Taliban and al-Qaeda fighters (not really mentioning 14 yo tomato fetchers or Mayfair souffle chefs sold on for GITMO experimentation). And in addition, there was the Uniform Code of Military Justice which pretty expressly prohibited most of the interrogation techniques.

    It may be out there, but I’m not aware of Haynes asking for any further “policy” directives from the WH on what it meant by “humane” treatment, but the Feb directive stands as the CIC’s order on treatment. It would be interesting to see what the analysis of the Qhatani treatment was vis a vis how it stood up to the directive and have someone answer whether or not that is the US definition of “humane” treatment.

    But that apart and aside, you had the problem of the UCMJ. So while, on the one hand you had the OLC info on what was the Gen Conventions and CAT and US domestic law and war crimes statutes, all of which have been getting the major attention, especially with respect to the CIA (and it is on these points that a lot of the fight was taking place with the military lawyers like Mora and JAG) you also had the issue of the UCMJ and the Presidential directive.

    How did Haynes address those? On the directive, there doesn’t seem to be a paper trail (remember Yoo declining to have a policy discussion with Mora) On the UCMJ, you had the Beaver memorandum. Seriously? That’s what Haynes, as top gun for the Pentagon, used for cover for all the UCMJ violations that were inherent in all the assault-based elements of the interrogation programs? A memo from a low grade field lawyer stuck at GITMO with no resources that says hey, the violations aren’t a biggie if they are authorized by a superior officer. With the directly on point cases of military prosecutions for waterboarding, and with the history of Nuremberg on “just following orders” and with the spelled out prohibitions in the UCMJ established by Congress, how did Haynes get around the UCMJ to opt into waterboarding and other measures as Category III “legal, but for policy reasons we are going to require pre-approval” activities.

    By relying on the Beaver memorandum? By shifting all the violations of UCMJ to that memo? Wow.

    That puts a different perspective on the letter from Philbin, Goldsmith, Comey and Thompson trying to get Haynes put on the Fourth and the completely oblique reference to UCMJ in that promotional effort:

    Second, Jim has been wrongly criticized based on the fact that he directed the working group convened in 2003 to accept a legal analysis presented by the Office of Legal Counsel of the Department of Justice concerning the application of certain laws and treaties (as we understand it, issues under the UCMJ were left for military lawyers to address).

    And as one of us testified before the House Permanent Select Committee on Intelligence in July 2004, even after the withdrawal of the OLC memorandum concerning the torture statute, al1 24 of those techniques were deemed lawful by the Department of Justice.

    A DOJ that didn’t look at UCMJ issues as statutory obligations imposed on the CIC and military by Congress in its Constitutional role. Bc even a Yoo/Bradbury/Bybee DOJ would have only been able to make the UCMJ argument by saying that the President as CIC is free to disregard the Congressionally enacted UCMJ. That’s one of the main parts of the now withdrawn memo they have tried to get around – lawyers directly advising their client, the President, that he is above the law when he acts as CIC.

  13. Mary says:

    And to put it in perspective, Clinton had cracked a few of the doors – his warrantless wiretap program for Latin American calls based on the War on Drugs and his renditions to Egypt (and the only lawyer mentioned in conncetion with authorization for those is Mary Jo White giving Scheuer the go ahead)

    Pulling weeds without going to the roots is just for show.

  14. cbl2 says:

    o/t and Breaking

    Humanitarian leaders and five U.S. lawmakers, including Minnesota Rep. Keith Ellison and Maryland Rep. Donna Edwards, were led away from the embassy in handcuffs Monday after crossing a police line.

    protesting Sudan’s leader removing aid workers from Darfur

    all 5 were –
    Donna Edwards (D-MD), James McGovern (D-MA), Lynn Woolsey (D-CA), Keith Ellison (D-MN) and John Lewis (D-GA). They were bound with zip-tie handcuffs and driven away in a large white van.

    back to your regularly scheduled program

  15. earlofhuntingdon says:

    Several of the players here had military experience. Rumsfeld, for example, had been a Naval aviator shortly after the end of the Korean War. Historical and fictional descriptions of waterboarding would have been well-known in this community. It was one of few torture techniques for which Army personnel had been court marshaled in the Philippines theater of the Spanish-American colonial war. It was famously used by the Japanese in World War II. It was also a longtime component of military survival training.

    Even those who had not been in the military but had worked as civilian political appointees would have known of it – as a classic example of torture. Which supports the proposition frequently discussed here: these guys explicitly sought out torture techniques ahead of their need to use them. Like buying a gun and training in how to use it before taking that walk in the park with Charles Bronson. Criminal intent? Check.

  16. WilliamOckham says:

    I want to return to ew’s question about who gave Mitchell the al Qaeda resistance manual. Or, rather, I’m more interested in what was in the manual. Let’s assume that the document in question was the “Manchester Manual” or something very much like it. The Brits pulled it off a computer in Manchester in 2000 (but it was probably written in the late 80’s). It was introduced by the DOJ as evidence in the al Qaeda trials in the spring of 2001, but I don’t think it was public knowledge back then. Later (in 2005, I think), the DOJ would post it to the web.

    The “Manchester Manual” has a chapter on resisting interrogation. Although the U.S. military constantly claims that the manual instructs al Qaeda members to lie about being tortured, the manual actually assumes that the ‘brother’ will be tortured, based on the organization’s experience in Arab countries. The manual has its own lists of physical and mental coercive techniques that operatives can expect to encounter. Maybe the reason Haynes sent the first list back to JPRA is that Mitchell had already come up with a list of techniques that al Qaeda wasn’t expecting, like waterboarding, sleep deprivation, manipulation of noise and light, etc.

  17. Mary says:

    30 – and by then he also knew that they were picking up people like el-Masri who were not al-Qaeda and were also shipping people like Arar into torture, and that there had been CIA briefings to the WH about how many people at GITMO were innocent. None of which has prevented him from penning a lot of pieces on how we needed to keep all the torture victims incognito, bc otherwise they might — talk about the torture.

    One thing I’d like to see tracked is who came up with the concept of getting people released from American concentrated population camps like GITMO to have to sign off on a release of claims for torture. Who signed off, who drafted and who even began to opine that such a thing was enforceable.

    I’d also really like to see more on how the various Secs of State (from Clinton renditions to Egypt on) were actually utilized and what they actually did to sign off on transfers to countries like Egypt. When Powell was giving his spiel to the UN, relying so much on what al-Libi said in Egypt that just so happened to coincide with what he knew Rumsfeld had wanted all along (remember Rumsfeld picking Iraqi targets while they were supposedly trying to plan the Afghan assault) and you have to wonder what Powell’s role was in having him shipped there. That is supposedly how they did the workarounds for shipments to torture nations – with the Sec of State supposedly negotiating assurances of non-torture. Did Powell do that, did he follow up on those assurances etc. before his spiel?

    It looks bad all around.

  18. klynn says:


    Just emailed you a resource re: academic (if anyone can call it that) content noting legal reasoning/arguments for torture…It explains there is “science” behind the many scholarly opinions/explanations for torture…

    Just an FYI. It may contain some bits of information that might connect a few dots for you.

    It was noted at a respectable publishing house too!

  19. nomolos says:

    Thank you EW for your wonderful coverage of this outrageous and illegal torture and the players involved. I am somewhat surprised that we have heard not a peep from Janet Karpinski who was treated abismally by her superiors and the MSM, of course being a woman did not help her cause!

    Frankly I think her rank and full pension should be restored, she should be given a medal and an apology from the gummint.

  20. SmileySam says:

    After Haynes name was made known as involved I nicknamed him Waterbroad Willie . It didn’t stick for long damnit.

  21. lysias says:

    No reason to think false confessions were only sought on the connection between Iraq and Al Qaeda-cum-9/11. So far I’ve heard of two false confessions along those lines: Al Libi’s about Iraq training Al Qaeda in chemical weapons; and something Abu Zubaydah allegedly said about Iraq-Al Qaeda cooperation against the Kurds.

    But look at all the testimony the detainees, including tortured ones, gave to the 9/11 Commission on the operational details of 9/11, as documented in the endnotes to the commission’s report. There’s so much that’s suspicious about the 9/11 Commission Report’s account of the operational details of 9/11, that’s it’s easy to believe false confessions were sought on that matter as well.

  22. Basharov says:

    Perhaps there’s something in addition to the search for false confessions.

    You don’t waterboard someone 183 times simply because you’re looking for a false confession. You do it because, to a sadist, torturing someone over and over again is a lot of fun. If the actual torturers/sadists escape any kind of criminal accountability (as appears likely, since everyone appears to want to give them a pass, as long as we can nail the lawyers and Cheney, Rummy, Rice, et al.) then we will continue to employ a gang of sadists in the C.I.A. — sadists who, in 15-20 years, will be running the C.I.A., or, as we see in the cases of Cheney and Rummy, sadists who will take their positions at the highest level of our government.

    The entire criminal operation should be cleaned out from top to bottom. If not, torture will always be an option for future presidents (and their enablers) to consider when they need a short-cut for extorting confessions — or when, as is the case with Bush and Cheney, they enjoy inflicting pain on helpless people.

    The English legal historian James Stephen explained these matters well over a century ago:

    “During the discussions that took place on the Indian Code of Criminal Procedure of 1872 some observations were made on the reasons which occasionally lead native police officers to apply torture to prisoners. An experienced civil officer observed, ‘There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than it is to go around in the sun hunting up evidence.’ This was a new view to me, but I have no doubt as to its truth.”

    –J.F. Stephen, A History of the Criminal Law of England, Vol. 1, 442, n.1 (1883)

    • JTMinIA says:

      Sadism is not the only explanation.

      If the torturers said, early on, that the waterboarding would only stop if and when the victim tells them what they want to hear, then a combination of wanting to be consistent and/or mere you-vs-us stand-off machismo would make them keep going.

      Ever heard a parent say “we’ll sit here until you [e.g.] eat your vegetables”? Same thing. Smaller scale.

  23. Jeff Kaye says:

    I see I didn’t say what I wanted to exactly:

    They may have wanted false confessions and show trials, but they also wanted intel, and they got some, too.

  24. radiofreewill says:

    Why was KSM Water-Boarded 183 times in March of ‘03 – the first month we invaded Iraq?

    How about Bush’s Idea of Revenge?

    Total Coalition KIA in Afghanistan – 2001 thru March 2003: 104

    Total Coalition KIA in Iraq – thru March 2003: 92

    For a Total of 196 thru the end of March 2003.

    Since we invaded Iraq beginning March 19th, the –

    Total Coalition KIA in Afghanistan and Iraq would have been 183 – Sometime in Late March, 2003.

  25. radiofreewill says:

    Okay, I waded into the iCasualities.org site Monthly totals:

    At the end of the day on Mar. 29th, Total Coalition KIA between Afghanistan and Iraq stood as follows:

    Afghanistan: 2 KIA for a Total of 103

    Iraq: 6 KIA for a Total of 83

    So, the Earliest Bush could have received an Official Report that there were 183, or more, Total KIAs between Afghanistan and Iraq would have been the Morning of March 30, 2003.

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