DOD’s Empty Vessel for Torture Authorization

When I asked whether DOD had any authorization for torture after 2004, Jeff Kaye reminded me we just recently saw one new aspect of authorization: an April 2006 Steven Bradbury Opinion authorizing Appendix M of the new version of the Army Field Manual released on September 6, 2006. (As Jeff and Matthew Alexander have shown, Appendix M, which remains in place, basically incorporates a number of techniques amounting to torture right into the AFM.) While the 2006 Bradbury memo doesn’t explain what DOD was doing between 2004 and 2006, the memo basically serves to turn Appendix M into an empty vessel into which DOD can throw anything it wants and have it pre-approved.

Make sure the client never sees the caveats

Let’s start with the structure of the memo: note to whom it is addressed?


Rather, this is a Memorandum for the Files. It serves as a document internal to OLC, rather than a document explaining factual assumptions, legal reasoning, and specific limits to the client. So how does the client know the result of the memo? The first paragraph of this memo explains,

The Department of Defense (“DOD”) has asked us to review for form and legality the revised drafts of the Army Field Manual 2-22.3 (“Human Intelligence Collector Operations”), Appendix M of FM 2-22.3 (“Restricted Interrogations Techniques”), and the Policy Directive regarding DOD’s Detainee Program. By letter sent today to the General Counsel of DOD, we advised that these documents are consistent with the requirements of law, in particular with the requirements of the Detainee Treatment Act of 2005 [citation removed]. This memorandum explains that conclusion.

In other words, Bradbury did tell Jim Haynes the result of his review: that the Appendix passed legal muster. But it appears that Bradbury did not send this memo (the memo was finalized after the letter had already been sent). Indeed, Bradbury suggests that he did little more than send a letter saying, “The new Army Field Manual, Appendix M, and the associated Directive are legal under the Detainee Treatment Act.”

Love, Stevie, kthxby.

Now, Bradbury does put limits on his judgment that Appendix M was legal. He spends what appears to be six paragraphs describing the techniques he says were part of Appendix M. Those paragraphs place limits on the techniques (for example, they prohibit an interrogator from leading a detainee to believe the interrogator was a member of the Red Cross). He references restrictive language in specific paragraphs of the AFM itself. He includes assumptions about whom DOD would use these techniques with.

But if DOD never saw this memo–and there’s no indication they did–then his approval would be utterly divorced from any of the restrictions he had placed on that approval.

Approve a document and then make changes to it

Speaking of all those references to specific paragraphs of Appendix M, note that Bradbury wrote this memo on April 13, 2006. Appendix M was not finalized and released until September 6, 2006. And the contents of Appendix M changed significantly between the time Bradbury wrote his approval letter and the time the Appendix was put into effect five months latter. (See this article from Jeff for a review of the debates in the interim period.) Even the title changed–from the plural “Restricted Interrogation Techniques” to the singular “Restricted Interrogation Technique–Separation” (what they basically did in the interim was lump all six techniques into one, as I’ll explain below).

A comparison of the paragraphs Bradbury cites with what the Appendix now says shows why this is important.

  • Bradbury cites paragraph M-3 for his definition of “unlawful enemy combatants” saying “persons not entitled to combatant immunity, who engaged in acts against the United States or its coalition partners in violation of the laws and customs of war during an armed conflict.” But M-3 now addresses a completely different issue–the distinction between separation and segregation. The current Appendix does have a related caveat, though the wording is different:

Separation will only be used during the interrogation of specific unlawful enemy combatants for whom proper approvals have been granted in accordance with this appendix. However, separation may not be employed on detainees covered by Geneva Convention Relative to the Treatment of Prisoners of War (GPW), primarily enemy prisoners of war (EPWs).

  • Bradbury cites M-6 for the caveat that the detainee in question must be believed to have important intelligence (his emphasis) and the requirement for “special approval, judicious execution, special control measures, and rigorous oversight”; that language is now in M-5.
  • Bradbury cites M-15 for the requirement that a General Office/Flag Officer approve each interrogation plan; that now appears in M-7, and the language appears to be slightly different.
  • Bradbury cites M-23 for language limiting the use of Appendix M only to DOD interrogators specially trained and certified to use these techniques; that language now appears in M-22, but the paragraph now authorizes properly trained contract interrogators and “non-DOD personnel” to use the techniques as well.
  • Bradbury cites M-21 for medical limits, including that “Detainees determined to be unfit for interrogation may not be interrogated” (note, this does not appear to be a direct citation from the appendix, but rather Bradbury’s summary of it); in the current Appendix, language on medical oversight appears in several places (M-16, M-20, M-23, M-24, M-30), but never includes an explicit restriction against using the techniques on an unfit detainee:

Medical personnel will be available to respond in the event a medical emergency occurs.


Commanders are responsible to ensure that detainees undergoing separation during interrogation receive adequate health care as described in greater detail in paragraph 5-91.


A provision for detainees to be checked periodically in accordance with command health care directives, guidance, and SOPs applicable to all detainees.


Planning must consider the possible cumulative effect of using multiple techniques and take into account the age, sex, and health of detainees, as appropriate.

[snip, emphasis original]

Medical: Detainees will be checked periodically in accordance with command health care directives, guidance, and SOPs applicable to all detainees.

Repackage 6 specific techniques into one Orwellian named technique

But by far the biggest change in Appendix M between the time Bradbury said it was legal and the time it was published was the replacement of 6 specific techniques–Mutt and Jeff, False Flag,  Separation (Isolation), and three techniques on changes in environment (probably different location, change in existing location–as with heat or odor or noise, and change in sleep)–to one absolutely vague technique, separation, that incorporates those, but does so without actually describing them at all (much less limiting them in any meaningful way). The best hint of what “Separation” entails comes from the list of cautions presented in appalling passive language:

  • Use of hoods (sacks) over the head, or of duct tape or adhesive tape over the eyes, as a separation method is prohibited.
  • If separation has been approved, and the interrogator subsequently determines that there may be a problem, the interrogator should seek further guidance through the chain of command before applying the technique.
  • Care should be taken to protect the detainee from exposure (in accordance with all appropriate standards addressing excessive or inadequate environmental conditions) to—

− Excessive noise.

− Excessive dampness.

− Excessive or inadequate heat, light, or ventilation.

− Inadequate bedding and blankets.

− Interrogation activity leadership will periodically monitor the application of this technique.

  • Use of separation must not preclude the detainee getting four hours of continuous sleep every 24 hours.
  • Oversight should account for moving a detainee from one environment to another (thus a different location) or arrangements to modify the environment within the same location in accordance with the approved interrogation plan.

In other words, it’s clear this Appendix envisions sensory deprivation (just without hoods or duct tape or excessively loud noise), temperature exposure, sleep deprivation, and isolation itself. But it never actually specifies what it means by those things.

And there’s one more indication that these techniques changed in some significant way between the time Bradbury “approved” them and the time they were published. Note that the Mutt and Jeff description includes about five lines redacted. Those are exempted from FOIA under exemption (b)(2), which is kind of bizarre in any case, because it refers to internal personnel rules, but in any case seems to refer to something that exists in some tangible bureaucratic form. But the exemption invoked to redact the entire discussion of what Bradbury refers to “Adjustment” and “Separation” techniques is (b)(5)–material that falls under some formal privilege, such as attorney-client or deliberative. It seems likely, then, that OLC and DOD redacted those sections under a deliberative privilege because the practices described in the redacted sections have changed since that time.

Approve any changes in the future

And if all that is not already outrageous enough, the Appendix itself is designed to be updated regularly.

Will be reviewed annually and may be amended or updated from time to time to account for changes in doctrine, policy, or law, and to address lessons learned.

Yet, with Bradbury having already written a letter–divorced from any condition or detail–approving the Appendix, DOD can throw whatever they want in Appendix M in the future and they’d still have their DOJ seal of approval.

Now, we know that Appendix M is still in effect. It is unclear whether Bradbury’s approval for it remains in effect (the memo is not included among those David Barron has explicitly withdrawn). But if it is, it basically serves to make Appendix M a privileged space into which DOD can put anything and have it carry DOJ sanction.

58 replies
  1. earlofhuntingdon says:

    A reasonable reading of counsel’s approval would be that it can only apply to the document actually seen and reviewed by counsel, not simply one bearing the same title but with a different date and content. That the document included a “hereafter amended or included herein” clause would not normally get around that routine hurdle. Still, you wouldn’t have a new career and we wouldn’t be arguing such things if the DoD, DoJ and White House employed lawyers that used or insisted upon reasonable interpretations of the law.

    This Bradbury “memo to file” – which was not delivered to the client and forms no part of advice to the client – and the associated “letter” referenced in it – which was apparently sent and could form part of the advice to the client – appear to look an awful lot like Bradbury imitating John Yoo’s “Yes We Can Torture” approach.

    Bradbury employs a little more finesse than Yoo. He doesn’t simply ignore the law and cases he knows by heart while referencing or misinterpreting others in order falsely to make his case. But his finesse doesn’t seem enough to give him any confidence in his work product. He apparently promptly left government service. No doubt, that was a good thing for the rule of law, except for the load he left on the carpet on the way out the door.

    • emptywheel says:

      Yeah, that’s my take on it. Maybe Bradbury did put caveats in, maybe not. But it sure looks like what Yoo would have done if he were clever.

  2. Jeff Kaye says:

    What a great initial review! So much to be consider…

    First thoughts: the date of the memorandum for the record is certainly prior to actually seeing a final copy of the review. The concatenation of the techniques (for presentation purposes) into one purported “technique – Separation”, had to have taken place subsequent to this memo. That was certainly something that struck me when I first read the document in September 2006. The change on sleep was particularly covert: they struck the prohibition on sleep deprivation, which had been in the prior version of the manual, and added in passing in the Appendix M material that no one would be deprived of four hours contiguous sleep on a given day. Of course, that means you can have 40 straight hours of interrogation, as they did over and over with Al Qahtani. There is also a direct reference to the switching of cells in such a fashion that it’s clearly a reference to use of the “frequent flyer” program.

    The entire way in which this DOD program for interrogation evolved from 2004 onward is very, very strange, and I think you’re beginning to pick it apart.

    The biggest revelation, personally for me, was your noticing the fact that Appendix M “never includes an explicit [medical] restriction against using the techniques on an unfit detainee.” That’s huge!!! Just what were those medical officers and technicians — and that includes, per Appendix M, BSCT-types as well — doing? What were, or are, they there for?

    I’m going to be looking at this, too, but not sure what I’ll be able to add. It’s strange we don’t have that letter from Bradbury to (I suppose) Haynes.

    Remember, too, the timing of the rollout of Appendix M, which was contemporaneous with the press on the Military Commissions Act, and the transfer of “high-value detainees” from CIA black sites to Guantanamo. In fact, a press conference by Bush on the latter overshadowed the release of the new AFM, which got very little coverage at the time. Way back then, only Physicians for Human Rights seemed to notice that anything was afoot, along with some of the foreign press (as people can read in the article you linked to in your post).

    • emptywheel says:


      Any idea whether the expansion of permission to use these techniques to OGAs and contractors is that significant?

      That is, was there really a significant change in the involvement of contractors in 2006, given that we know they had been involved all along? Or was there a particularly reason why you would not tell Bradbury this was going to be used to give US sanction to contractor torture?

      • Jeff Kaye says:

        Am thinking along parallel lines. The new AFM was visualized as a replacement for the CIA EITs, which is what was the original intention of the Detainee Treatment Act (DTA). They needed this replacement because at the time of the initial McCain amendment, making the then-current AFM the law for interrogation, it was too restrictive for the CIA and SERE-happy DoD. CIA couldn’t live with the old AFM, and needed something better, if it was going to be used for them. Other DoD interrogators may have had their own interests, as well (JSOC, DIA).

        Of course, CIA got an exemption from DTA, which it used until the Obama Administration took it away. By then, however, the damage was done, because embedded within the new Army Field Manual, inclusive of Appendix M, is most of the old KUBARK-CIA interrogation techniques, and some of the SERE techniques as well (there’s overlap between CIA and SERE). What’s definitely out is waterboarding, hooding, sexual abuse. What’s left, directly or indirectly, is isolation, sleep deprivation, environmental manipulations (includ. evidently dietary, temperature, etc.), sensory overload, sensory deprivation (just not “total”), stress positions, “fear up”, threats, false flag, mutt and jeff, etc. etc. — and don’t forget, use of drugs, too, as long as they didn’t cause “permanent damage” (lost was the old distinction Yoo put in about profound derangement of the senses).

        So by the time they were finalizing Appendix M, it was thought that the AFM would cover CIA (or likely would), and most likely, that included their contractors, as well. In sum, I think they added that wording when it looked like CIA would sooner or later lose their exemptions. However they finalized the AFM/Appendix M, they had to make sure it could accommodate the basic CIA techniques. The authors of Appendix M are clear that this is not how the regular military does its interrogations.

        The AFM declares, and Appendix M reiterates, that the techniques are Geneva-compliant. But Geneva-compliance took on a whole new meaning after the MCA was passed, because, as Bradbury pointed out in his 2007 memo, the GC’s enforceability was made secondary to presidential interpretation offered via Exec Order.

        So what you have is one big package: the AFM, Appendix M, the new DoD Directive, the DTA (tying torture and cruel treatment to U.S. “shocks the conscience” standards, which were also used in the reservations to CAT), and the MCA. A bit clunky, but the intention was to build a firmer foundation for their interrogation program after the disaster of the crappy Yoo/Bybee memos, fend off possible criminal investigations, and settle the internal controversies over the use of EITs. In any case, by 2006, the main experimentation on EITs was likely over. The new torture/interrogation paradigm was in place, fine-tuned for the cultural and biological differences associated with the populations in which they were being implemented.

        The right wing and CIA cried crocodile tears over having their “tools” taken from them, but that was really a joke. They were never interested in wide-spread use of the waterboard, mock burial, or sexual threats. They were likely sad to see the loss of use of dogs, but you win some and lose some, in their eyes. They set up the AFM to essentially run what they wanted, then put out a huge propaganda campaign about how it was an improvement over the old, how it was professional, and much more humane than the CIA program. They could push from the right for something extra for the CIA, and the left would keep their mouths shut, thinking wrongly they had won some kind of fight, or just not understanding how the wool was pulled over their eyes.

        (Here I use “right” as pro-torture, and “left” as anti-torture, and I realize that this is not an exact match to the use of right and left as terms in the political world.)

        • prostratedragon says:

          This is an excellent framework within which to do opposition analysis in general these days, like say in connection with the financial crisis and the dim prospects that anything will be done there by way of enforcement —maintain the assumption that much of the caterwauling one hears on a given point of some issue is misdirection, by opportunity if not by original design.

          It’s the casual-seeming loopholes, quiet personnel shifts, and other such as slip by under the noise that tell the tale.

  3. emptywheel says:

    And another thing the change in the language does is allow DOD torturers to use torture on unlawful enemy combatants who have NOT engaged in warfare against the US.

    • crossword says:

      …which was the intention all along.

      The world is a battlefield. Proactive, not reactive.
      [insert neoconservative national security policy views here].

      • emptywheel says:

        Particularly since absent any review of their status, grabbing someone who had NOT engaged in warfare against the US would be … what? Grabbing someone they alleged had provided material support for terrorism?

        • bmaz says:

          Heh, a charge even the military acknowledges they do not likely have jurisdiction for.

          Which segues into this nicely:

          The White House is considering whether to detain international terrorism suspects at a U.S. military base in Afghanistan, senior U.S. officials said, an option that would lead to another prison with the same purpose as Guantanamo Bay, which it has promised to close.
          That the option of detaining suspects captured outside Afghanistan at Bagram is being contemplated reflects a recognition by the Obama administration that it has few other places to hold and interrogate foreign prisoners without giving them access to the U.S. court system, the officials said.

  4. MadDog says:

    …Use of hoods (sacks) over the head, or of duct tape or adhesive tape over the eyes, as a separation method is prohibited…

    Hoods and duct tape are so passé, doncha know?

    Instead, just stop by your local Walmart for the best in approved headgear (from page 354 of the 384 page AFM):

    …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…

    • emptywheel says:

      See, cause the problem with sacks and duct tape is not that it’s abusive. The problem is that no one can get a multimillion dollar contract to provide duct tape.

        • bobschacht says:

          I’m with EW on this one, so I fixed your comment below:

          BITF will be is the new GTMO…

          I don’t know why they even need Bagram. An aircraft carrier in the middle of the Indian Ocean would do the job just as well, wouldn’t it?

          Bob in AZ

          • bmaz says:

            I think that might actually run into some thorny problems due to international law of the sea. However, unlike Captain Jack “He Of The Law Of The Sea” Goldsmith, this is not my specialization.

            • bobschacht says:

              Ah, yes. Diego Garcia. Even though we don’t have official rights to it, with cooperation of the British (?), the Island’s inhabitants have already been removed to another place, and what has been going on there since then has not been covered much in the press. The main problem with DG is that it is so far from anywhere else. An aircraft carrier could be positioned in international waters anywhere.

              Bob in AZ

              • Rayne says:

                That bit about ownership of Diego Garcia — or lack thereof — is going to be an important facet to remember going forward.

                WE don’t own BITF, either.

                Or GTMO…

            • kindGSL says:

              You mean the guys who pirate because the fish they used to eat are all gone from pollution? Who could have predicted it?

            • bobschacht says:

              There would be a lot of justice in that. After all, the Somali pirates mainly turned to piracy because the world has been stealing their fish, and using their coastal waters as a dumping ground for toxic waste.

              Bob in AZ

  5. readerOfTeaLeaves says:

    …the Appendix itself is designed to be updated regularly.

    Will be reviewed annually and may be amended or updated from time to time to account for changes in doctrine, policy, or law, and to address lessons learned.

    “Legal Laundering” in the spirit of the Sorcerer’s Apprentice (i.e,. “go broom…. go broom…“).
    Unstoppable and out of control.

  6. Jeff Kaye says:

    “a perception of separation”

    If they simply wanted a perception of separation, they would not have to have doctors or medical personnel nearby for use of this technique. In fact, there were plenty of experiments done in the heyday for experimental work on sensory deprivation that demonstrated that even such deprivation methods as goggles and earmuffs used for even up to 12 hours could produce profound efffects, including hallucinations. The effects are more profound the more “strange” and uncertain the environment.

    Try it sometime. A fun new party game. Somehow I think it will never catch on.

    • Jeff Kaye says:

      Yes, and too, as Louis “Jolly” West, an MKULTRA psychiatrist, made clear in his work on SD and hallucinations, the latter are made more vivid when the nervous system is in a state of higher physiological arousal, as when there is a great state of fear.

      Those really interested could pursue West’s 1962 book, Hallucinations. West was, along with Harry Harlow and another author, the creator of the DDD torture paradigm, noted in the KUBARK manual, by Joseph Margulies in his book on Guantanamo, by me, and by others. DDD stands for Dependence, Debility, and Dread, and is the formula for the torture program. Production of debility and dread to break down the individual, and creation of a state of regressed dependency. That’s what you need. They found that isolation and sleep deprivation are really about all you need. Isolation produces the requisite amount of perceptual deprivation. Then starve them a bit (Ensure diet), and if you produce fear and uncertainty, good cop-bad cop, and you have your very own “touchless” torture program. Stress positions are used to produce debility. When you can’t have isolation, you’ll have to use the “field expedient” way to produce quickie sensory deprivation effects.

      I never understood why the CIA wanted to go back to waterboarding, etc. Maybe they were in a rush after 9/11. But I still think they needed a robust database for their experimental project of scientifically mapping the breakdown data on human beings under “uncontrollable stress”, so they could use their new fangled PID monitors to scientifically drive an individual to the edge of breakdown, then pull them back, and — offer them a cup of tea!

    • crossword says:

      Jeff – if it’s anything like the helo dunker, I’ll pass. I never want to that again. Ever.

      • earlofhuntingdon says:

        Even the Dilbert Dunker is a pain if the impact knocks the wind out of you and you inhale after you’re under water. But yea, whole body suspension, without sight or sound inputs, is painless, until the absence of signals the mind expects to process starts paining the mind so much it invents its own signals. Do it long enough and the mind never reverts to normal.

        None of that is about getting information; it’s about breaking the mind while leaving the body intact. I guess the NY phone book thumpingly impacting the head and abdomen took too long to have permanent affects.

        It’s one way to get around limitations on capital punishment. I imagine Clarence Thomas would say that, technically, since the punishment is pre-trial and pre-judgment, it’s just capital. The only “intelligence” garnered by these methods is what techniques destroy the mind most efficiently, so that Dick Cheney needn’t worry about at least a few of those he feverishly imagines are his enemies.

        I still get hung up, though, about the qualification that the prisoner subjected to any of this treatment be “high-level” or be alleged to have important information. There is no exigent circumstances exception that would make such torture not a war crime.

        • crossword says:

          It’s always a war crime. I don’t care what the neocons say. I took the theater briefs, I sat through the legal crash course in Bahrain.

          Torture is a war crime.

        • behindthefall says:

          the qualification that the prisoner subjected to any of this treatment be “high-level” or be alleged to have important information.

          I do **NOT** want to get into a discussion of who ought to be subjected to these cruel and unusual treatments, but it really seems to me that if someone is thought to have “important information”, the __last__ thing you want is to drive the mind containing that information over the edge. “Ooops, he’s insane; *now* how do we get that important information? And what out of all the c**p he’s spewing out is faintly true and useful and what’s hallucination?”

          • PJEvans says:

            It makes it pretty clear that getting information from them isn’t the real point, doesn’t it?

            I’m looking forward – to people being tried for war crimes.

          • earlofhuntingdon says:

            There is that pragmatic – shudder, I hate to use the Obama-word – consideration, that torture confuses fact and fancy so much that it makes useful information hard or impossible to disentangle. The threshhold question is whether the law and politics permit it at all. My answer would be no. That may be one reason why Alberto Alfredo Corleone Gonzales and his recent peers never asked me to work in his or their DoJ.

            Torture produces “good enough” information, though, if like Communist China in the 1950’s, you just want to put words in someone’s mouth. That is, if they won’t be contested when the speaker is rested and compos mentis (assuming they ever regain that state of mind). If you just want to use the “information” in the court of public opinion, and not a law court, then getting the words through torture would work just fine, if you have a mind like Eichmann’s or Mengele’s.

            • Mary says:

              Almost as important, torture creates torturers.

              A society encourages the propagation of torturers doesn’t need an outside enemy.

          • kindGSL says:

            Hmm . . . high level . . . plus torture produces permanent brain damage, sounds to me like it is a cover up. It is not to make them talk, it is to make them incapable of talking, spilling the beans so to speak.

            Killing them would be easier. I think the motivation was sadism.

            • Palli says:

              If you are going to run a criminal enterprise you have to satisfy the poor stiffs doing the work. The high from applying torture is a great reward for the workers and they have been chosen because of their propensity to enjoy the work. No doubt, some of the experimentation by our pseudo scientists has been aimed at determining the characteristics of willing torturers, in other words, how do you identify prospective “institutional sadists”.

              I believe that torture is a personal act; some persons just can’t get their hands dirty. But someday, people are going to find in safes, trunks and hidden file drawers, pornographic pictures with the fingerprints and fluid stains of “respectable” American citizens entertained by the War on Terror. They live among us.

  7. earlofhuntingdon says:

    “Separation” is a unique coinage, like one of those Douglas Adams word games, where standing forlorn in the kitchen, having forgotten why you went there, is called “woking”.

    “Separation” isn’t the anxiety caused by leaving a parent on one’s first day in pre-school. Nor does it apparently mean merely isolation from other prisoners or only severe sensory deprivation (which on its own and over an extended period, can lead to psychosis). Those meanings are too radically common. They don’t suggest an adequate level of lateral thinking. They don’t sufficiently obfuscate. They don’t adequately shield administration lawyers and their political patrons from the evils they authorize.

    No, “separation” means exactly what the DoD and the DoJ choose it to mean – from time to time, from case to case, from one non-denial denial to another – neither more nor less. The question is not whether a word can mean so many things, so many different kinds of torture, but whether the word or its meaning is master. We’re all on the wrong side of Alice’s looking glass now, especially the prisoners in our endless non-war.

  8. fatster says:

    O/T, FWIW:

    Yale professor: Growing divide between Holder, Obama could end with AG’s resignation
    [source is Agence France-Presse, BTW]


    • bobschacht says:

      Yale professor: Growing divide between Holder, Obama could end with AG’s resignation
      [source is Agence France-Presse, BTW]

      Thanks for this. Interesting that it comes from Agence France-Presse. ISTM that Holder is getting hit up from all sides in order to keep him from doing very much. Every time he moves even a tiny bit in the direction we would like to see him go, he winds up getting blasted by someone who knows how to get lots of coverage in the MSM. And since he’s getting little or no cover from the WH, it is not unexpected that he’s become a bit gun shy (so to speak– bad metaphor.)

      We won’t get much out of the DOJ before Obama decides to make some of our own causes his own– just as health care reform probably would not have passed without his direct intervention and support. And that doesn’t seem likely any time soon.

      However, this war crimes stuff is not going to go away. It’s a bit like the tar baby, and the tar has begun to stick to Holder’s (and Obama’s) hands. To mix literary allusions, he will soon be in the position of Lady Macbeth, crying “Out, damn spot!” Our allies in Europe will remind him about his treaty commitments whenever we try to prosecute war crimes somewhere else.

      I just hope that Obama will realize that sticking up for the Constitution, and upholding the rule of law for everyone, regardless of power or station, can be a powerful positive for him. Right now, it’s just dragging him down.

      Bob in AZ

        • whitewidow says:

          Interesting source. That is quite the non-story. It’s interesting in that there really is no new information in that story. We have Gerson, whose motivations are quite suspect, saying Holder is the most endangered WH official.

          Then we have Yale lawyer Fiddel, who makes some pretty basic observations and only says “Sure, I suppose he could resign in protest.” (paraphrasing)

          Then not until the very end of the article, Fidell saying “but virtually nobody ever does resign in protest.” (paraphrasing)

          None of the story is “not true”, but it comes pretty far short of supporting the notion that Holder is actually considering making this decision himself.

      • kindGSL says:

        Bush is being asked to speak to the English about it, that will be an interesting story to watch. Per your statement, here is some proof.

        While Giving Obsessive Coverage To The Tea Parties, Media Ignored Larger Anti-War Rally

        From that story,

        ”Using the media data-mining tool Critical Mention, a search by ThinkProgress of the keyword “protest” of the three major cable news networks — CNN, MSNBC, and Fox — found that the tea party protests were covered 31 times between March 19th and March 21st, and the antiwar demonstration was only covered twice.

        Unfortunately, the media’s marginalization of war critics is nothing new. The media watchdog group Fairness and Accuracy In Reporting (FAIR) surveyed six major national news shows as well as PBS’s NewsHour during the run-up to the Iraq war. The FAIR study found that during these pre-war months, the major media outlets featured war supporters 24 times as often as it featured war opponents. ”

        My quick and dirty look at that data shows media giving an advantage to pro-war messaging over anti-war messaging of 94 to 6 percent and 96 to 4 percent.

        We can average them and call it twenty to one. No wonder we feel out numbered, media is completely skewing the messaging. I say completely because as a quality control expert, I know a five percent error rate is actually pretty darn good. Imagine how much effort that must take.

        I have observed that the BEST big media ever gives us is lip service to ”evenly balanced” – when you hear that phrase, expect an election to be stolen. Also, be suspicious of the ’reporter’ saying it, they start that messaging months in advance.

        Did you see this?

        US Human Rights Record Challenged

        It is blowback. Also the Pope is defending child sexual abusers, that will be the end of his church. Who didn’t see that coming?

  9. klynn says:


    You and Jeff need to make a documentary, possibly with the ACLU, walking people through the documentation and the connections you both have been weeding out. Perhaps Brave New Films?

    Your work has been absolutely fantastic.

  10. Jeff Kaye says:

    I have written on the subject of the pragmatic use of torture, having investigated it somewhat, and understanding something of human psychology (I am a Ph.D. psychologist), as well as having first hand experience in interviewing torture victims across many different cultures (Africa, Central America, Asia, Russia/Poland, etc.).

    The truth is that torture information is unreliable, but it does not mean that sometimes it doesn’t produce valid information. The trouble is that one doesn’t know what is valid, and this info must be cross-referenced with other data. As we know, torture is used to coerce confessions and “cooperation”. But it is also used sometimes to get information (not my idea, but it happens).

    Certainly the Chinese and Koreans did all of the above, and the fact they also got some information is simply a documented fact, and one with some meaning because of the issue of whether that included claims of biological warfare by the Americans.

    In any case, I think I’ll repost this essay I did shortly before joining FDL’s pup pen. In it, I note some points about torture which are uncomfortable for all sides of the polemical battle, though true (and among those who treat torture victims, it is not controversial):

    The issue of false confessions elicited under torture had its largest airing when, in 1952-53, captured U.S. airmen told their captors that they had engaged in dropping biological weapons on North Korea and China as part of the U.S. air campaign against those countries. The accusation was vigorously denied by the United States, and a propaganda campaign was begun in the guise of investigating the “brainwashing” of U.S. prisoners. Wild stories of mind control drugs and secret interrogation techniques that could gain unique influence over the personalities of its victims were circulated. It was in this environment that Albert Biderman, Lawrence Hinkle, Harold Wolff, Robert Jay Lifton and others were enlisted to study how the Chinese had produced the “false confessions” of U.S. POWs.

    Except, were the confessions false?

    Publicly, that was the story. But when researchers met behind closed doors, or at professional meetings, a different story emerges. At a 1957 symposium organized by the Group for the Advancement of Psychiatry (GAP) on “Methods of Forceful Indoctrination: Observations and Interviews”, Dr. Louis West noted that “the enemy had a considerable degree of success in obtaining intelligence information and in forcing prisoners to engage in propaganda activities” (emphasis added; the quote is from GAP Symposium No. 4, July 1957, published by GAP Publications Office).

    Note, the enemy had “success” both in information retrieval and using prisoners for propaganda (getting them to say what they wanted). Because of the simplistic Cheney argument that torture “works”, opponents have been forced into the polemical opposite corner, but that does not comport with the truth, and we must stick to the truth if we are going to win this struggle.

    In any case, the use of torture to gain information is totally morally wrong and illegal. If it occasionally succeeds in gaining information, that is really besides the point. That’s what our argument should be, IMHO.

    • bmaz says:

      The truth is that torture information is unreliable, but it does not mean that sometimes it doesn’t produce valid information. The trouble is that one doesn’t know what is valid, and this info must be cross-referenced with other data. As we know, torture is used to coerce confessions and “cooperation”. But it is also used sometimes to get information (not my idea, but it happens).

      That is exactly right. I spent years litigating one of the seminal coerced confession cases in American law and that was the unequivocal testimony of my experts, and they were the best I could find in the world.

    • bobschacht says:

      In any case, the use of torture to gain information is totally morally wrong and illegal. If it occasionally succeeds in gaining information, that is really besides the point. That’s what our argument should be, IMHO.

      And then there is the additional factor of whether the (true) information gained could have been gained by other methods.

      Bob in AZ

  11. Jeff Kaye says:

    Well, klynn, I am going to be in the forthcoming documentary Doctors and Detainees, for which I was interviewed. The film-makers are Martha Davis (a psychologist) and Julie Gribble. They made the earlier documentary, “Interrogation Psychologists: The Making of a Professional Crisis”, which you can watch online.

    I don’t know how much of the interview with me will be left on the cutting room floor (ha! maybe you’ll see my face flash by), but the film should be seen for its intrinsic value, which I imagine, from their earlier film, will be quite high.

    As for EW, she would be invaluable for a documentary on a number of subjects, including torture. Her wide-ranging knowledge and command of a mass of material is certainly pertinent to both making a documentary, and being interviewed for one. I’m surprised she has not been tapped yet, but I’m sure she can speak for herself on that point.

    Btw, ACLU is doing an amazing job with their special site, The Torture Report, which I believe has highlighted some of EW’s work.

  12. alinaustex says:

    Holder is not going anywhere and Rahm better quit leaking these stories.
    My money is on Holder as we get HCR behinds I look for the DOJ to come out swinging against the neocons..
    And that douchebag Rahm maybe we will see him hiking the Appalachain Trail with his best pal Lindsey before too long and the two of them will hold hands as the neocon sunsets over the Smokey mountains
    And our NATO allies will be pressuring us to shut down Bagram– so we will -sooner rather then later …

  13. NorskeFlamethrower says:


    Citizen emptywheel and the Firepup Freedom Fighters:

    Your investigation anaysis and reporting on all the pseudo-legal poison that has been left in the working diet of our national defense and security structures begs the question of how the Obama administration can detoxify the system without committing a whole lot of time and political capital to public hearings and show trials at the risk of provoking dangerous reaction from deep within the shadow government and security aparatus. How can the garbage that remains of the fascist takeover of our government be disposed of without bein’ recycled through our political system?

    Just how does this horrible chapter in our country’s history get cleaned up while troops remain in the field in two counties without a public “truth and reconcilliation” process?


    • kindGSL says:

      I recommend we focus on the rule of law and ending the drug war. Rule of law is a winning political message, so if we are not winning with it, we are doing it wrong.

      Ending the drug war will have very interesting effects on foreign policy.

      Basically the situation is the bad guys are running things and they are paying for it with illegal drugs, arms sales, fraud, slavery and prostitution (the war industry).

      When we start investigating how all these things work together, it points directly at the people in charge. Unlike torture and the war on Islam, the war on drugs is supposed to be for the safety of our children, and has been sold as such.

      When people find out the reality, it makes them very angry, like TEA Party mad, I know because the TEA Party was my idea. Racists have taken it over now though, so I am moving on. Try coffee instead.

  14. leliorisen says:

    I fully expect the Obama Administration and Eric Holder to take this information and run with it…..all the way to the shredding machine.

  15. bobschacht says:

    The wikipedia article on Diego Garcia
    (, although not the source for my comments above, corresponds with what I had heard earlier. A joint British-American military base was established there in the 1980s, and the wikipedia article contains a fairly detailed and well-annotated review of the Island’s politics and possible use as a prison site in recent years. The island is so remote that it may never have had an indigenous population. The 2,000 or so inhabitants who were there in the 1960s were descendants of African slaves and Hindu laborers brought to the islands by the French in the 18th century.

    Bob in AZ

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