Donald Rumsfeld’s Torture Defense and Appendix M

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

14 replies
  1. rugger9 says:

    Here’s hoping that the wheels of justice grind exceedingly fine. I’m sure the MOTUs will allow that. Not.

    That Rummy will be given a trial is going to be interesting, however, but I’m sure the USG will make sure to wall off as much as they can.

    What makes these cases more offensive than usual are two things: Americans tortured [BEFORE trial], and because they were doing what they were told to do about waste fraud and abuse.

  2. Jeff Kaye says:

    Appendix M, as Bradbury discussed it in April 2006, surely changed a great deal by the time of its publication in the new AFM in Sept. 2006. For one thing, both false flag and “Mutt and Jeff” appear in the main text of the AFM, not in Appendix M, which is restricted, supposedly, to only one technique, “Separation”.

    The NYT Times article cited from 06 (broken link in the filing, but now can be seen here) says, “The addendum provides dozens of examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations.”

    Appendix M as it exists now has no such number of examples. What it does do, as I’ve explained before, is take these so-called “adjustments” and hide them within the text by placing limits on “environmental manipulations” related to the “Separation” technique. Surely, one of the Bradbury “adjustments” must have been “sleep adjustment” (as DoD called it before), and came to be discussed in the published version of Appendix M as allowing only 4 hours sleep per night.

    I’m always dubious about what and how the military followed legal procedure in any case, as they appear to feel they can do whatever they want and get away with it. In this sense, they are less lawyer plagued than CIA, if what I hear is true.

    Your article raises a number of important questions. We certainly need to see this December 2005 document. What we’ll see is that it was an early version of the current Army Field Manual, complete with Appendix M, and not simply Appendix M.

    What Bradbury called Appendix M in April 2005 was split up into the AFM proper, Appendix M, and then the “fine print” of Appendix M, or so it appears.

    The whole issue of “threats” is important, too. The AFM claims (and Bradbury) that there are no threats. There are a couple warnings about that in the current AFM (PDF, in fact. But the description of the “Emotional Fear Up” technique, including quotes given, sound like threats to me:

    In the fear-up approach, the HUMINT collector identifies a preexisting fear or creates a fear within the source. He then links the elimination or reduction of the fear to cooperation on the part of the source….

    The HUMINT collector must be extremely careful that he does not threaten or coerce a source. Conveying a threat may be a violation of the UCMJ….

    If there is no justified fear, the HUMINT collector can make use of nonspecific fears. “You know what can happen to you here?” A fear-up approach is normally presented in a level, unemotional tone of voice. For example, “We have heard many allegations of atrocities committed in your area and anyone that was involved will be severely punished”….

  3. William Ockham says:

    Bradley states very clearly that the restricted techniques only “differ in certain minor respects from those evaluted in the Philbin testimony”. The Philbin testimony is about the legality of the techniques that Rumsfeld approved for GITMO on April 16, 2003. Philbin listed 7 techniques from the Rumsfeld list that weren’t in the Army FM at the time.

    These techniques were Scenery Down (moving detainee to less comfortable setting), altering diet, subjecting detaineess to changes in temperature or unpleasant smells, adjusting the sleep cycle, false flag, isolation, and “Mutt and Jeff” (the military version of “Good Cop/Bad Cop”.

    The main question I have is that how does Rumsfeld plan to argue that this stuff doesn’t exist when everything I’ve pointed out here is from officially released sources?

  4. emptywheel says:

    @William Ockham: The thing that separates the Vance and DOe cases from Padilla is DTA–COngress weighing in and saying that cruel and unusual were wrong (bc otherwise Rummy could just say that, like Ashcroft w/material witness, he couldn’t be expected to know this was wrong). So the important part is that this happened after Congress said it was wrong.

    Now, like I said, this memo is a mixed bag for Rummy, bc it shows that OLC did sign off on this treatment specificall wrt DTA.

    But ultimately, Roberts et al will probably argue special factors let the govt do what it wants at time of war.

  5. klynn says:

    “But ultimately, Roberts et al will probably argue special factors let the govt do what it wants at time of war.”

    Perhaps the German economy might use a Roberts arguments to retrieve their war reparations?

  6. William Ockham says:

    @emptywheel: I think I get it now. Bradbury is referring to a draft AFM. It was never issued in that form. So, Rumsfeld is very narrowly correct about that particular fact. However, he certainly did approve the techniques described in that draft. And I bet there are plenty of interrogation plans from Cropper that reference those techniques.

    I wonder if he’s afraid of opening up the paper trail about why Appendix M got changed. Note the FOIA exemption markings on the descriptions of the techniques (pgs 2 & 3). The Mutt and Jeff redactions are (b)(2) which is the “risks circumvention of a legal requirement”, but the redaction of techniques 3-6 are (b)(5), which is the deliberative process exemption.

  7. klynn says:

    BTW, thank you for the post EW.

    Jeff, thanks for stopping by. It is a great day when you and EW share insights.

  8. MadDog says:

    I stopped over at Andrew McCarthy’s place at the National Review to read his and Rummy’s mouthpiece David Rivkin’s take on this 11th Circuit decision so that others here at Rancho Emptywheel wouldn’t have to.

    If you must, be forewarned and prepared to enter the Twilight Zone where Up is Down, In is Out and Wrong is Right—> crazy stuff here.

  9. MadDog says:

    @MadDog: That should have read the 7th circuit.

    My sincere apologies to the the folks in Illinois who found themselves transported to Georgia. Hope you enjoyed the peaches. *g*

  10. Garrett says:


    Rivkin is frightening, for his informed and knowing Up is Down statement, about a ruling in his own case.

    Commenters are #5.

    In (5), words and meaning have almost parted company. People who write in this manner usually have a general emotional meaning — they dislike one thing and want to express solidarity with another — but they are not interested in the detail of what they are saying.

  11. emptywheel says:

    @William Ockham: Yeah, it’s unclear what the status of this memo is. I’ve had conflicting answers from DOJ. Plus, AFAIK, no drafts of other OLC memos got turned over to ACLU, so why this one?

  12. alinaustex says:

    If in these civil actions it is proved that Secretary Rumsfeld did in fact order the torture of these two fellow Americans – what can be done to press criminal charges for the torture done ? Is there any basis for We the People making a citizen’s arrest ?

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