Three years ago, I showed how Steven Bradbury wrote an OLC memo that approved in advance whatever techniques DOD wanted to put into the sometimes classified Appendix M of the Army Field Manual. At the time, DOJ implied to me that this memo was rescinded along with the rest of Bradbury and John Yoo’s torture memos.
In a really important post yesterday, Jeff Kaye explained that the memo, in fact, remains operative.
LTC Breasseale explained in an email response to my query last year:
Executive Order (EO) 13491 did not withdraw “‘All executive directives, orders, and regulations… from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals.’” It revoked all executive directives, orders, and regulations that were inconsistent with EO 13491, as determined by the Attorney General…. [bold emphasis added]
One last point – you seem suggest below that EO 13491 somehow cancelled Steven Bradbury’s legal review of the FM. EO 13491 did not cancel Mr. Bradbury’s legal review of the FM.”
When I then asked the Department of Justice to confirm what Breasseale had said for a story on the Bradbury memo, spokesman Dean Boyd wrote to tell me, “We have no comment for your story.” The fact Boyd did not object to Breasseale’s statement seems to validate the DoD spokesman’s statement.
Breasseale also described DoD’s view that both the current AFM and Appendix M were “not inconsistent with EO 13491,” which “expressly prohibits subjecting any individual in the custody of the U.S. Government to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the FM. In addition, the Detainee Treatment Act of 2005 expressly prohibits subjecting any individual in the custody of the U.S. Department of Defense to any treatment or technique of interrogation that is not authorized by and listed in the FM. In short, both the President and the Congress have determined that the interrogation techniques listed in the FM are lawful,” Breasseale said.
In his post, Kaye provides a lot of details for why the continued applicability of the memo, authorizing separation, is deeply troubling. I’d add that the particular structure of the memo, which of course allows the insertion of physical torture techniques previously abandoned under cover of classification, adds to the concern.
But there is a pending legal reason why it is important, too.
A few years ago, two contractors, Donald Vance and Nathan Ertel, sued Donald Rumsfeld and others for the torture they were subjected to at Camp Cropper after whistleblowing about Iraqi and US corruption.
The torture was, in large part, the “separation” permitted in Appendix M. As part of their case implicated Rummy personally, they described how, immediately after Congress passed the Detainee Treatment Act, Rummy invented Appendix M as a way to evade the law. Read more