The DOD Techniques from Spring 2004

Yesterday when I raised the question of what techniques DOD wanted to use in spring 2004, I said there was some ambiguity about what DOD was trying to get approved. In this post I’m going to lay out the conflicting sources of information. Given the totality of information, though, it appears that what DOD asked to use in spring 2004 was extended isolation.

As you’ll recall, Jack Goldsmith originally told Jim Haynes not to rely on the March 2003 Yoo memo in late December 2003. But the OPR report describes a request to use some technique in early March 2004 that set off the more active withdrawal and replacement for the memo.

Here’s how Goldsmith describes his conversation with Haynes in December 2003 in Terror Presidency:

“Jim, I’ve got bad news,” I began. “We’ve discovered some errors in the March 2003 opinion that John wrote you on interrogation. The opinion is under review and should not be relied upon for any reason. The twenty-four techniques you approved are legal, but please come back for additional legal guidance before approving any other technique, and do not rely on the March 2003 opinion for any reason.”

Of those 24 techniques Goldsmith said he told Haynes were legal, Rummy had listed four (incentive/removal of incentive, pride and ego down, mutt and jeff, and isolation) that required advance notification (though not approval) from the Secretary of Defense.

The OPR Report described that conversation slightly differently.

Accordingly, Goldsmith telephoned Haynes in late December 2003 and told him that the Pentagon could no longer rely on the Yoo Memo, that no new interrogation techniques should be adopted without consulting OLC, and that the military could continue to use the noncontroversial techniques set forth in the Working Group Report, but that they should not use any of the techniques requiring Secretary of Defense approval without first consulting OLC.

The Working Group Report approved 26 techniques generally and another 9 in exceptional circumstances. The 26 included three not among those techniques Rummy approved (hooding, mild physical contact, and threat of transfer), and one of the techniques Rummy did approve–isolation–was among those requiring exceptional circumstances in the Working Group.

The working group recommends that techniques 1-26 on the attached chart be approved for use with unlawful combatants outside the United States, subject to the general limitations set forth in this Legal and Policy Analysis; and that techniques 27-35 be approved for use with unlawful combatants outside the United Stam subject to the general limitations as well as the specific limitations regarding “exceptional” techniques as follows: conducted at strategic interrogation facilities; where there is a good basis to believe that the detainee possesses critical intelligence; the detainee is medically and operationally evaluated as suitable (considering all techniques to be used in combination); interrogators are specifically trained for the technique(s); a specific interrogation plan (including reasonable safeguards, limits on duration, intervals between applications, termination criteria and the presence or availability of qualified medical personnel) is developed; appropriate supervision is provided; and, appropriate specified senior level approval is given for use with any specific detainee (after considering the foregoing and receiving legal advice).

And while the Working Group did place limits on those exceptional techniques, it did not require SecDef approval. Here’s what they say about Secretary of Defense approval.

That a procedure be established for requesting approval of additional interrogation techniques similar to that for requesting “supplementals” for ROEs; the process should require the requestor to describe the technique in detail, justify its utility, describe the potential effects on subjects, known hazards and proposed safeguards, provide a legal analysis, and recommend an appropriate decision level regarding use on specific subjects, This procedure should ensure that SECDEF is the approval authority for the addition of any technique that could be considered equivalent in degree to any of the “exceptional techniques” addressed in this report (in the chart numbers 27-35, labeled with an “E”), and that he establish the specific decision level required for application of such techniques.

The SASC Report has a third version of the Goldsmith-Haynes conversation.

Mr. Goldsmith told the Committee that he called Jim Haynes in December 2003 and told him the March 14,2003 OLC opinion was under review and could not be relied on by the Department. 1140 That opinion had been presented to the Working Group as the controlling authority for all questions of domestic and international law and was the legal foundation for the Secretary’s April 2003 authorization oftechniques for GTMO. Mr. Goldsmith told the Committee that he informed Mr. Haynes in December 2003 that he had determined that only 20 of the 24 techniques authorized by Secretary Rumsfeld were lawful, and that the remaining four techniques were under review. 114 Mr. Goldsmith also advised Mr. Haynes in December that the Department should come back to OLC for additional legal guidance before approving any technique not among those 24 specifically identified in the Secretary’s April 2003 memo.1142 Mr. Goldsmith told the Committee that Mr. Haynes did not inquire about the use ofadditional
techniques during his tenure at OLC, which ended in June 2004.1143

1141 In his interview with Committee staff, Mr. Goldsmith said he eventually determined that all 24 were lawful. That account differs slightly from Goldsmith’s account in his book, in which he said that he told Mr. Haynes in December that all 24 techniques were lawful.

I agree with SASC: Goldsmith’s version in his book conflicts with what he told the committee, which are both somewhat different from what OPR Reports. But a May 11, 2004 memo from Goldsmith may shed some light on this issue. It memorializes Goldsmith’s prior approval, on April 23, 2004, of the four techniques approved by Rummy in April 2003 but which required advance notification before using.

On April 23, 2004, OLC advised the Department of Defense that four techniques for interrogation of a prisoner at Guantanamo would be lawful, if justified by military necessity and if conducted in accordance with the Secretary of Defense’s memorandum of April 15, 2003,

At the very least, this supports Goldsmith’s explanation to the SASC that he went on to approve these four techniques.

Curiously, to justify approving isolation, Goldsmith cites the March 2003 Yoo memo!

The fourth technique was isolation for a limited period. We had earlier advised the Department of Defense that “[a] brief stay in solitary confinement alone is insufficient to state a deprivation” of basic human needs and thus would not constitute “cruel, inhuman, or degrading” treatment under the Convention Against Torture, let alone meet the higher standard for “torture” under that Convention and the United States criminal law implementing it, 18 U.S.C. 2340-2340A. See Memorandum for William J. Haynes, General Counsel of the Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States at 64 (Mar. 14, 2003).

While Goldsmith is not here relying on the more problematic aspects of the memo, according to the OPR Report, he and Bradbury started drafting replacements for the Yoo memo by this point.

Finally, this memo may reveal what the conflict was about: DOD appears to have been requesting 60-day isolation for this detainee.

The Department of Defense proposed that the solitary confinement might continue as long as 60 days, with an internal review after 30. We stated, however, that our advice was limited to the legality of the 30-day period and that we ought to be consulted again if the Department of Defense wished to extend that time.

The description of isolation in Rummy’s April memo only permitted 30 days of isolation. So it appears the request may not have been for a new technique, but for an extended use of isolation.

Just one caveat to that point: SASC also includes a largely redacted paragraph just below the discussion of Goldsmith’s withdrawal of the memo that suggests DOD insitutionalized its “Frequent Flyer” program, in which detainees were moved every few hours to prevent them from sleeping, on March 26, 2004.

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45 replies
  1. orionATL says:

    a simple question keeps botherig me:

    why did we torture?

    a corollary:

    why did the whitehouse focus so relentlessly on torture?

    the pres and v-p had millions of soldiers at their command.

    they had a phenomenal arsenal of weapons abailable – tanks with special armour and special shells, fleets of the deadliest planes from the terrible gunships to invisible b-2 bombers. they had exotic, exceedingly deadly weaponry- special bombs, a developing drone that will change warfare forever.

    they had a mammoth intelligence gathering bureaucracy in the cia, nsa, and dod. they had special forces trained to collect local info, abduct, or kill in any environment. they had hundreds of billions of dollars at their disposal.

    and these political “executives” focused, and focused deeply and persistently,

    on torture.

    why?

    • BoxTurtle says:

      Great minds think alike, you just typed faster!

      Boxturtle (How come Dick never thought of bullets dipped in pigs blood?)

    • BayStateLibrul says:

      Revenge…
      Bush and Cheney were obsessed.
      How else can you explain their narcotic behavior?

      • BoxTurtle says:

        Cheney was obsessed. I’m still not 100% sure Bush realized fully what happened.

        Bitter sarcasm aside, I think the real motive was that they didn’t like the truth the prisoners were telling. No Iraq connect. No Iran connection. Not even a link to Hamas, for goodness sakes. Everything lead back to Saudi Arabia, sometimes to members of the royal family, or to Afganistan.

        Afganistan has no oil. Saudi Arabia has LOTS of direct connections to GOP contributors. Neither was a particularly profitable target. I sometimes wonder if one of the secret goals of the Afgan war was to “prove” the connection between AQ and Iraq.

        Boxturtle (Eventually, we decided proof was irrevelent)

        • harpie says:

          That would be my guess, as well. They wanted a specific narrative that would further their goals. When Ogrisseg told Baumgartner that the AF doesn’t use the waterboard on its SERE trainees because [paraphrasing] “it creates 100% learned helplessness“, the little light bulbs went off in their little heads. That was the answer to all of their searching!
          Of course, they are also grade A psychopaths. imo.

    • behindthefall says:

      I’m starting to think that I tend to misunderestimate the blackness of these people.

      Why should I think that they had any interest at all in governing well? Doesn’t every word and deed show that they governed absolutely terribly by design?

      Why should I think that they had anything but self-interest as motivation, and why should I think that that self-interest was anything but contracts to corporations which would pay lots and lots of money to become the indispensible component of a never-endng war. The conventional military, to the corporations, has come to be seen as nothing but an inconvenient middleman.

      Why wouldn’t VP-Dick find that he himself was the right man for the job, when looking for a running mate for Shrub? Who better to steer events so that favored corporations would be rolling in millions (billions, more likely) of dollars, time without end?

      And on and on.

    • JTMinIA says:

      Why did we torture? My answer to this starts with the assumption that those who tortured are not stupid (merely evil). Amongst other things, they know it produces false information. But that’s what they wanted. They wanted a link between 9/11 and Iraq.

  2. BoxTurtle says:

    Why was it so important to find brutal techniques to use when the old techniques were working just fine?

    Yeah, I know Cheney was scared. Heck, he ran to his “undisclosed location” and hid for months. I know he felt his manhood had been attacked. Getting information quicker could be vital.

    But these techniques don’t look like interrogation as much as revenge.

    Boxturtle (If KSM had made up an Iraq story right away, would he have been tortured?)

  3. orionATL says:

    box turtle @3

    it evens out over time.

    plus there can never be too many questions or comments about this kind of foolish, destructive, self-defeating behavior from the very highest level of our national leadership.

    putatively sophisticated,
    but, now we learn, possessing not a whit, not one tiny jot, of sophistication or wisdom.

    • PJEvans says:

      Saw the lede on that at the LA Times. Yesterday it had a story about Toyota workers begin unhappy about a 2006 memo being ignored; Toyota management says they didn’t see the memo.
      (I know which side I think is lying. And it isn’t the workers.)

      • earlofhuntingdon says:

        Yep, a 30-mile flat out ride on I-8 in coastal southern California. The driver, James Sikes, was lucky he was on an interstate. The California highway patrol had to help clear the way to allow him to regain control of his Prius, which at one point was going 94 mph, not a speed at which the Prius is a highly-controllable vehicle. So much for Toyota’s claims to have fixed its problems. Guess those discounts are going to go up.

  4. tjbs says:

    If Mr. Durham does his job well we just might learn that dick was sick, as was george who both personally were involved, through video hook-up, with the direction and duration of individual sessions. I think they are sadists, who took pleasure in these activities as an end in itself. After a few deaths if they had any humanity they would have backed off instead of doubling down, like adding tracheotomy kits when they probably murdered someone, while water boarding that poor soul. If the videos contain their voices that changes everything.

    • BayStateLibrul says:

      Yes. My hope is that Bull Durham will uncover the nasties.
      Having said that, they will probably cover-up the mess again, until someone sings like a birdie…

      • bmaz says:

        And Durham has done exactly what to inspire any confidence? And, as I repeatedly have to remind folks, please keep in mind the extremely limited jurisdiction Durham has. All this Durham this and Durham that is laughable on its face. Big Bullshit Durham has assigned jurisdiction to investigate the narrow circumstance of destruction of one set of “torture tapes” (but not any of the torture depicted on them, the circumstances surrounding it or anything else involved) and has also been given limited authority to conduct a “preliminary review” of what appears to now be about five previously declined cases, which is not even an investigation of the case, their fact or circumstances. That is it. Pegging all these wild hopes on John Durham is a farce.

        • BoxTurtle says:

          I’m with you, I think Durham will be a whitewash. His jurisdiction and authority were carefully designed by people who do not want to find anything prosecutable. And since they know where the prosecutable offenses are, I’m pretty confident they are outside of either his jurisdiction or the SOL.

          Boxturtle (Some things require too much hope even for Browns fans)

        • tjbs says:

          Bmaz,
          Aren’t the five closed cases homicides?

          If they are there are no statute of limitations ,no?

          This ongoing criminal torture enterprise is running with bailing twine and bubble gum and will unravel at a time and place no one can know, but it’s coming.

          The big difference between Kennedy assassination, Watergate and Iran Contra and the torture conspiracy is the internet shoots down the lies as fast as they sprout.

          • bmaz says:

            Presumably they are homicides, but we do not know with certainty the identity and nature, nor exactly how many are under “review”, of the cases; although the best guess is that it is down to less than ten and probably five or six at most. If they are homicides they are presumptively without statutes of limitation. But Durham is conducting a “preliminary review”, which is an extremely limited internal to DOJ process that does not constitute an investigation and does not possess any charging authority. Placing any hopes on this is nuts.

          • earlofhuntingdon says:

            There is no statute of limitations on “murder” or intentionally and wrongfully causing the death of another. Statutes do apply to other kinds of wrongful death, such as recklessly or negligently causing someone’s death. A prosecutor would have to charge murder (and be convinced s/he has the evidence to back it up), a judge would have to accept it, and a jury would have to uphold it in order to get past the statute.

            • bmaz says:

              I actually recall the statute being phrased in terms of death or reasonably foreseeable chance of death. The problem is that the death cases will be the most difficult to use to unravel torture as death/murder can be prosecuted as well outside of the permissible torture program. You can bet the family farm that if a death case, such as the one at the Salt Pit, is ever prosecuted, it will be done so on extremely narrow grounds so as to avoid getting into the torture program. That is in the highly unlikely event such a case is actually prosecuted by the DOJ, and the odds of that are almost nil.

              • timbo says:

                bmaz, what about the witnesses that almost died? Isn’t there some recourse for them under CAT? Or are they limited out by statute as well?

                • bmaz says:

                  American courts have ruled the US government to be immune to foreign litigants for these acts occurring in foreign jurisdictions. So, absent some desire by the DOJ to prosecute, and there is not only not desire to prosecute but an extremely strong determination not to do so, no there is no real effective recourse.

                    • bmaz says:

                      The part about “American courts have ruled the US government to be immune to foreign litigants for these acts occurring in foreign jurisdictions” was in reference to civil cases. The remainder about criminal.

              • earlofhuntingdon says:

                My recollection is that statutes vary by state and by cause of death, with “murder” being the exception. But I agree, any DoJ under the Obama administration will ignore the more than 100 deaths of “terrorist” prisoners in custody, even (or especially) if they have exclusive jurisdiction. Any less pro-ancien regime prosecutor in a future DoJ would be stuck with stale evidence, lost witnesses and an even higher wall of obstruction from those involved.

        • timbo says:

          The question of why these important intelligence tapes were destroyed does need to be answered though. At this point, any legal foil is better than none?

          But, yeah, basically there are a lot of people who could be prosecuted for various torture and legal statute violations putting a lot of pressure on the USAs/DOJ personnel to keep the ball in the air so they don’t have to face prosecution overseas for CAT violations. Heck, if the US keeps the ball in the air long enough, maybe some of these criminals will simply expire of natural causes before any justice can be done…if it ever will be done in the case of these amoral thugs and sycophants.

  5. earlofhuntingdon says:

    Thanks for another fine piece of work. Your continuing series on these issues makes Mark Benjamin’s useful summary indeed seem like Waterboarding for dummies. Surprisingly, he makes the dubious claim that,

    Though public, the hundreds of pages of documents authorizing or later reviewing the agency’s “enhanced interrogation program” haven’t been mined for waterboarding details until now.

    Someone should send him the web address for this site.

    • emptywheel says:

      Yeah, that claim sort of pissed me off. He knew I was working on this stuff almost a year ago, which is when I first focused on the details in the Bradbury memos (after they were released in April).

      • earlofhuntingdon says:

        Mark Benjamin should do his homework before he claims to have an exclusive. Here’s one example, which took 0.45 seconds to find, from about a year ago, in the April 19, 2009, NYT:

        The new information on the number of waterboarding episodes came out over the weekend when a number of bloggers, including Marcy Wheeler of the blog emptywheel, discovered it in the May 30, 2005, memo.

  6. JohnLopresti says:

    Spring 2004 seems to have been mid solitary confinement 2 years of Padilla, though recent response depicts# his having been permitted to notify his parent he was alive, in a message sent ten months after transfer to brig.

    **For nearly two years, Padilla was denied all contact with counsel, courts, or family, aside from a single short message after ten months informing his mother. His only human contact during this period was with interrogators, or with guards delivering food through a slot in the door or standing watch when he was allowed to shower. ER240 ¶57. Interrogators forcibly injected Padilla with substances represented to be truth serum, left him shackled for hours in *stress* positions, threatened him with death and harm to his family, and denied him adequate medical care for severe medical conditions foreseeably resulting from this mistreatment. ER239 ¶55, ER242 ¶7l,72.

    **In between interrogation sessions, night and day dissolved-the windows blackened, artificial light glaring at all hours-so that Padila could not fulfill his religious obligation of five-times daily prayer. ER239-42 ¶55,64-70. Removal from his cell meant black-out goggles and sound-blocking earphones. ER239 ¶55,ER241 ¶65. All outside information-papers, radio, television-was prohibited and even his Koran was swiftly confiscated. ER241 ¶66. Padilla was denied a mattress, blanket, sheet, or pilow, and left only a steel slab. ER239-40 ¶55p. Whatever sleep he could muster was *adjusted* by deliberate banging, constant artificial light, noxious odors, and extreme temperature variations. ER239-40 ¶55o,c,m,q.**
    —-
    #[email protected]

    • behindthefall says:

      Where did they find “people” willing to inflict such treatment? You wouldn’t treat a rat like that.

      There are sadists walking around in the light of day. At least, I presume they come out during the daytime …

      • Gitcheegumee says:

        Joe Ryan Abu Ghraib diary April 2004 – SourceWatchThese are the April 11th through to April 26th entries from Joe Ryan’s diary, a private interrogator employed by CACI International at Abu Ghraib prison. …
        http://www.sourcewatch.org/index.php?…Joe_Ryan_Abu_Ghraib_diary_April_2004 – Cached – Similar
        Joe Ryan – SourceWatchFeb 3, 2005 … However, a copy of the April 11-April 26 entries was retrieved from the Google cache: see Joe Ryan Abu Ghraib diary April 2004. …
        http://www.sourcewatch.org/index.php?title=Joe_Ryan – Cached

        Steven Stefanowicz – Wikipedia, the free encyclopediaJump to Activity Related to Abu Ghraib‎: However, the online diary of another CACI interrogator at Abu Ghraib, Joe Ryan, reveals that a “Steve Stefanowicz” was still working at the prison on April 26th 2004, suggesting that Taguba’s …
        en.wikipedia.org/wiki/Steven_Stefanowicz – Cached

        Show more results from en.wikipedia.org

  7. timbo says:

    Okay, I’m reading the first paragraph of this article and Chris Dodd’s face keeps running through my mind–that’s when you know you’ve posted a great by-line!

  8. timbo says:

    How is isolating someone for 30 or 60 days a good way to get information in a “ticking time-bomb” scenario? These techniques are being used to punish people in cruel ways, supposedly extra-judicially, simply because they are in the custody of US government personnel or agents.

  9. alinaustex says:

    bmaz
    I firmly believe that the Durham grand jury has been given wider discretion then you have described -though I cannot give you a link or citation for that I still have enough confidence that this expanded – wider discretion will cover my $200 bet with you -pardon the poor grammar its past my bed time and work comes early tomorrow…

    • bmaz says:

      Well, when you have some basis for that, let me know; because the authority grants I am aware of are quite specific and the DOJ, Holder et. al have been very clear that it is so limited. Yet after retreat upon retreat on these subjects, and the abject fear the Obama Administration displays at ruffling the Cheney Torture brigade’s little tailfeathers, you seem convinced that the magical unicorn Durham is going to rectify the torture world. I hope you are right, but there is not a single shred of tangible evidence with which to support it or believe it. Oh, and by the way, if there was any hope of mustering a successful prosecution, you can bet your last dollar they would not have gutted the original findings of OPR as to the work on the torture memos.

  10. alinaustex says:

    [email protected]
    Margolis OPR whitewash is the beginning of this unravelling for the neocons, not the end- destroying official documents as it relates to an ongoing investigation is a crime . .
    And I do believe as well the characterization that Holder is scared to push back on Liz Cheney is overwrought. For example I still believe that KSM will be tried on Governor Island ( Col Lang ‘s idea). That is a very secured site for the trial and in line of site of Lady Liberty .
    But as one young Mr Zimmerman once opined bmaz
    “Time will tell who has fell and whose ben left behind -when you go your way and I go mine”

  11. tjbs says:

    Bmaz, You seem to feel the constitution is unable to right the wrongs and I hope you’re wrong.
    Waiting for the final buzzer.
    Hitler’s crew thought they overcame the restraint of the law also.

    • bobschacht says:

      Bmaz, You seem to feel the constitution is unable to right the wrongs and I hope you’re wrong. Waiting for the final buzzer.

      The Constitution is fully able to right the wrongs. But it is not a self-executing document: it requires actual people, in this case people in Congress and the Courts, to use the tools in the Constitution to right the wrongs. And that’s where the problem lies: Those people, presently, are pretty feckless and are utterly failing their oath of office to protect and defend the Constitution.

      As some politician once said, you can’t beat somebody with nobody. Somebody has to stand up and do their job.

      Bob in AZ

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