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.

Mitt Romney Names Two Torture Lawyers to “Justice Advisory Committee”

The headline news about Mitt Romney’s new advisory committee of 63 lawyers is that Robert Bork is co-chairing it.

But even more troubling is that he has named two of the lawyers that okayed torture–Steven Bradbury and Tim Flanigan–to it.

Bradbury, of course, wrote the Combined Torture memo, which found, in part, that waterboarding someone 183 times in a month does not shock the conscience.

He also told DOD it could do whatever it wanted, so long as it called it “Appendix M.” Bradbury failed to mention that memo from Congress, too, when they asked for a list of all the torture memos he had been involved in.

Bradbury would have been investigated over the memos he wrote, had Michael Mukasey not intervened.

Flanigan was one of the three lawyers–along with David Addington and Alberto Gonzales–who told John Yoo to turn the Torture Memo into a “Get Out of Jail Free” card by saying that if the Commander-in-Chief ordered torture, then it couldn’t be prosecuted.

Now, why would Presidential Candidate Mitt Romney appoint two men who called torture legal to his Justice Advisory Committee?

The Weird Circumstances Surrounding Hassan Ghul’s Interrogation

As I noted earlier, the AP and other outlets have reported that Hassan Ghul was among the first to inform American interrogators of the importance of Abu Ahmed al-Kuwaiti. Here’s what the AP reported.

Then in 2004, top al-Qaida operative Hassan Ghul was captured in Iraq. Ghul told the CIA that al-Kuwaiti was a courier, someone crucial to the terrorist organization. In particular, Ghul said, the courier was close to Faraj al-Libi, who replaced Mohammed as al-Qaida’s operational commander. It was a key break in the hunt for in bin Laden’s personal courier.

“Hassan Ghul was the linchpin,” a U.S. official said.

Given the apparent importance of Ghul’s interrogation, as well as reports that he was freed at some point, I wanted to point out several oddities that may relate to his interrogation.

A Long Delay Before Entering CIA Interrogation

Here’s an outdated timeline I did of Ghul’s treatment (I’m working on an updated one). But we know he was first reported captured on January 22 or 23 2004. Yet, CIA was just getting approval for interrogation techniques to use with Ghul in August 2004, seven months later.

We know this from an unredacted reference to Ghul in the May 30, 2005 CAT Memo.

The interrogation team “carefully analyzed Gul’s responsiveness to different areas of inquiry” during this time and noted that his resistance increased as questioning moved to his “knowledge of operational terrorist activities.” Id at 3. [redacted] feigned memory problems (which CIA psychologists ruled out through intelligence and memory tests) in order to avoid answering questions. Id.

At this point, the interrogation team believed [redacted] “maintains a tough, Mujahidin fighter mentality and has conditioned himself for a physical interrogation.” Id. The team therefore concluded that “more subtle interrogation measures designed more to weaken [redacted] physical ability and mental desire to resist interrogation over the long run are likely to be more effective.” Id. For these reasons, the team sought authorization to use dietary manipulation, nudity, water dousing, and abdominal slap. Id at 4-5. In the team’s view, adding these techniques would be especially helpful [redacted] because he appeared to have a particular weakness for food and also seemed especially modest.

The document referred to here was a August 25, 2004 memo from the CIA to Daniel Levin, who was acting OLC head after Jack Goldsmith left in 2004. While we haven’t seen that memo, we have seen his response, written the following day, which approves the use of dietary manipulation, nudity, water dousing, and abdominal slap. That letter also references an August 13, 2004 meeting (at which water dousing was clearly discussed), and a July 30, 3004 letter, with attachment, and the attachment to a August 2 letter.

In other words, from this correspondence, it would appear that it took at least six months (from late January to late July) before the CIA got around to torturing Ghul.

This, in spite of the fact that an earlier reference to the August 25 letter claims that CIA believed Ghul had information about pending attacks.

On [redacted] the CIA took custody of [redacted] whom the CIA believed had actionable intelligence concerning the pre-election threat to the United States. [reference to August 25 letter] [redacted] extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and intelligence indicated [redacted] arranged a … meeting between [redacted] and [redacted] at which elements of the pre-election threat were discussed. Id at 2-3; see also Undated CIA Memo, [redacted]

That paragraph is followed by more intelligence that may pertain to Ghul alone, to another detainee alone, or to Ghul and then another detainee:

Intelligence indicated that prior to his capture, [redacted] perform[ed] critical facilitation and finance activities for al-Qa’ida,” including “transporting people, funds, and documents.” Fax for Jack L. Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [redacted] Assistant General Counsel, Central Intelligence Agency (March 12, 2004). The CIA also suspected [redacted] played an active part in planning attacks against United States forces [redacted] had extensive contacts with key members of al Qaeda, including, prior to their capture, Khalid Shaykh Muhammad (“KSM”) and Abu Zubaydah. See id. [Redacted] was captured while on a mission from [redacted] to establish contact” with al-Zarqawi. See CIA Directorate of Intelligence, US Efforts Grinding Down al-Qa’ida 2 (Feb. 21, 2004)

In addition to the information on Ghul contained in the August 30 CAT Memo, there’s further reference to correspondence on Ghul in the May 10, 2005 Techniques memo (which for a variety of reasons must have been written to pertain to Ghul specifically).

You asked for our advice concerning these interrogation techniques in connection with their use on a specific high value al Qaeda detainee named [redacted] You informed us that the [redacted] had information about al Qaeda’s plans to launch an attack within the United States. According to [redacted] had extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and had arranged meetings between an associate and [redacted] to discuss such an attack. August 25 [redacted] Letter at 2-3. You advised us that medical and psychological assessments completed by a CIA physician and psychologist, and that based on this examination, the physician concluded [redacted] medically stable and has no medical contraindications to interrogation, including the use of interrogation techniques addressed in this memorandum. 20

20 You have advised us that the waterboard has not been used [redacted] We understand that there may have been medical reasons against using that technique in his case. Of course, our advice assumes that the waterboard could only be used in the absence of medical contraindications.

The following footnote describes, among other things, that Ghul “was obese, and that he reported a “5-6 year history of non-exertional chest pressures.”

And there’s this information, which was leaked to Fox:

Ghul, a Pakistani, is known to have been an Al Qaeda member since the early 1990s, when Al Qaeda was established.


One official said Ghul was “definitely in Iraq to promote an Al Qaeda, Islamic extremist agenda.” Ghul is described by officials as a facilitator known in terrorist circles as “the Gatekeeper” who moves money and people around the Middle East, Africa and possibly beyond. Officials added that Ghul has extensive contacts in Al Qaeda and wider terrorist communities, and is thought to have had some kind of connection to the 1998 East African embassy bombings, though officials stress those links are still being probed.

All of which presents us with the highly implausible possibility that Ghul was captured in January 2004, believed to be a key facilitator for al Qaeda, yet not entered into the CIA program and tortured until six or seven months later.

There are several possible explanations for this odd fact, including (note, these are all possibilities–I’m not saying they definitely happened):

  • Ghul’s transfer to CIA custody was delayed by concerns about removing him from Iraq
  • Ghul was moved to CIA only after they got intelligence about pre-election attacks
  • Ghul’s torture happened under DOD, not CIA, custody
  • CIA required Ghul’s interrogation to be approved personally by the Principal’s Committee, which it did without the advice of Jack Goldsmith or Jim Comey
  • Ghul’s interrogation approvals were retroactive

I believe some combination of these factors explains they delay between the time when Ghul was captured and when CIA first got approval for his interrogation. If I had to make a wildarsed guess, I think DOJ prevented Ghul’s transfer into the CIA program for some time, and once he was transferred (with approval directly from the Principals Committee and possibly without any more formal legal cover), CIA used water dousing, which had not yet been formally approved, all of which forced them to retroactively approve his treatment.

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The White Paper and the Classified Opinion

As has often been noted, the White Paper the Bush Administration released on January 19, 2006 largely repeats the analysis Jack Goldsmith did in his May 6, 2004 OLC opinion on the warrantless wiretap program. So I decided to compare the two documents.

Not only did such a comparison help me see things in both documents I hadn’t seen before. But there are a number of things that appear in the White Paper but not the unredacted parts of the opinion. Some of this, such as Administration statements after the warrantless wiretap program was exposed in 2005, simply serve as the publicly acceptable discussion of the program. Yet in one case–the White Paper’s discussion of how the Hamdi decision affected the program–this probably repeats a discussion in another, still classified, Goldsmith opinion he wrote the day before he left on July 17, 2004. Then there’s a bunch of information that appears (in both redacted and unredacted form) in the Goldsmith opinion but not the WP. As I discuss below, I think there are a number of reasons for this.

I should warn that I did this in about a day or so, so I certainly may have misstated what’s in Goldsmith’s memo. Let me know if you catch anything like that.

General Contents

Goldsmith’s memo is organized this way:

Background (including genesis of program, the scary memo process of reauthorization, two sets of modifications, and prior OLC opinions)

Analysis [of whether the illegal wiretap program is legal under 5 different criteria]

I. Executive Order 12333

II. Statutory Analysis (of FISA and Title III wiretap laws)

III. Completely redacted criterion*

IV. Completely redacted criterion*

V. Fourth Amendment (including extensive discussion of why the current threat makes the illegal program a reasonable search)

*If I had to guess what the two completely redacted criteria are, I’d say one is the Defense Appropriation of 2004, which prohibited data mining of US data, and one is the First Amendment.

The bolded subjects above don’t appear in the WP. The exclusion of some of this–the discussion of how the program works, for example–is dismissed in the WP by saying it cannot be discussed in an unclassified document. The EO 12333 discussion, which presumably pertains in part to the wiretapping of US persons overseas, didn’t seem to be the big public concern after the program was revealed (or maybe the WP didn’t want to admit that limits on wiretapping Americans were just pixie dusted away). And some of these subjects–such as the Defense Authorization, if my guess that it’s one of the totally redacted criteria is right–were no longer operative in 2006 when the WP was issued.

In general, Goldsmith (and the WP) replace John Yoo’s authorization of the program under Article II with what he calls “new analysis” finding that the Afghan AUMF bestowed on the President full Commander in Chief powers, which in the process meant his war powers trumped FISA. The formula isn’t much more sound than what we suspect Yoo to have said, but it gives Goldsmith lots of places to insert wiggle room into interpretations of FISA, for example, arguing that the principle of constitutional avoidance suggests that the purported conflict between the AUMF and FISA must be resolved to make sense constitutionally which, in Goldsmith’s book, means a tie goes to the Commander in Chief.

The focus on the AUMF allows both documents to rehearse a long history of wartime wiretapping that just happens to magically skip the Vietman-era wiretapping that FISA was written to prohibit.

In addition, Goldsmith (and the WP) argues that the importance of the government’s interest in wiretapping al Qaeda makes the warrantless program “reasonable” under the Fourth Amendment. Note, this is almost certainly a departure from John Yoo’s November 2, 2001 Fourth Amendment based argument, given how closely that opinion seems to cling to his October 23, 2001 Fourth Amendment evisceration opinion, and given Goldsmith’s decision not to rely on that opinion on page 100. In the Fourth Amendment discussion, Goldsmith gives very extensive (but entirely redacted) information on the threats that justify such wiretapping; the WP effectively just says “trust us.”

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Nine Years of Nudity in American Detention

It’s just like old times!

… the CIA interrogators also announced they planned to become Zubaydah’s “God.” They reportedly took his clothing as punishment, and reduced his human interaction to a single daily visit in which they would say simply, “You know what I want,” and then leave.

Jane Mayer, The Dark Side

In addition to degradation of the detainee, stripping can be used to demonstrate the omnipotence of the captor or to debilitate the detainee.

JTF-Gitmo SERE SOP, December 10, 2002

Establishing the baseline state is important to demonstrate to the HVD that he has no control over basic human needs. The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting. The use of conditioning techniques do not generally bring immediate results; rather, it is the cumulative effect of these techniques, used over time and in combination with other interrogation techniques and intelligence exploitation methods, which achieve interrogation objectives. These conditioning techniques require little to no physical interaction between the detainee and the interrogator. The specific interrogation techniques are:

a. Nudity. The HVD’s clothes are taken and he remains nude until the interrogators provide clothes to him.

CIA memo describing combined interrogation techniques, December 30, 2004

Nudity: This technique is used to cause psychological discomfort, particularly if a detainee, for cultural or other reasons, is especially modest. When the technique is employed, clothing can be rewarded as an instant reward for cooperation.

OLC “Techniques” memo, May 10, 2005, withdrawn by Barack Obama

Removal of clothing is different from naked.

Douglas Feith, Testimony before House Judiciary Committee, July 15, 2008

PFC Manning was inexplicably stripped of all clothing by the Quantico Brig. He remained in his cell, naked, for the next seven hours. At 5:00 a.m., the Brig sounded the wake-up call for the detainees. At this point, PFC Manning was forced to stand naked at the front of his cell.

Report from David Coombs on treatment of PFC Bradley Manning, March 3, 2011

Daniel Levin’s Last Minute “Combined” Memo

I’ve been looking through some old FOIA documents and noticed an interesting email exchange turned over in one of last August’s document dumps (PDF 21-22). It’s an email chain between a CTC lawyer (whose name we don’t know) and John Rizzo and others regarding a draft of the Combined OLC Memo. I’ve reversed the order of the email string so it appears chronologically.

02/02/05 12:56PM

From: CTC Lawyer

To John Rizzo [and others, redacted]

cc: [redacted]

Subject: Draft OLC opinion on combined techniques has arrived

OLC wants our comments ASAP (if we have any hopes of having it completed and signed by COB Friday).

OLC also asks if its OK to share this draft opinion with appropriately cleared DOD (Jim Haynes, [redacted] and a few others) and State attorneys (currently only two, Will Taft and now also John Bellinger).

02/02/05 01:26PM

From: John Rizzo

To: CTC Lawyer

cc: [redacted]

Who are “a few others” at DOD? [redacted] cleared into EITs, and perhaps [redacted] (check on this) but no one else in DOD OGC, as far as I know. Outside of lawyers, I don’t see this is any of anyone’s business on the DOD policy side.

02/02/05 01:38PM

From: CTC Lawyer

To: John Rizzo

cc: [redacted, fewer total recipients than first email]

Agree this should be limited to lawyers. I thought, though, that perhaps [redacted] was EIT briefed. The expert, of course, is [redacted].

Now, there are a whole slew of reasons I find this email exchange to be interesting.

Note the date: February 2, 2005. That was two days before Daniel Levin’s last day at OLC, which explains the rush to get this memo approved “by COB Friday.” Read more

Steven Bradbury Didn’t Disclose His Appendix M Opinion to Congress

As I posted a week ago, in April 2006 Steven Bradbury wrote one of the most egregious of all the egregious torture memos, one approving the new Army Field Manual, including its Appendix M laying out more intense interrogation methods. While the legal analysis of the memo was, itself, fairly nondescript, the analysis in the memo was written to the file rather than to the client, DOD. This separated Bradbury’s actual approval of the new document for DOD from any analysis or caveats. Approving the memo in such a way allowed DOD to change the content of Appendix M (which they did do), while still maintaining a letter saying whatever was in Appendix M had been approved by OLC.

Which is why I find it so interesting that, in response to a direct Question for the Record from John Conyers in 2008, Bradbury didn’t reveal the memo.

(D) Please identify any other legal opinions or memoranda you have authored or assisted in drafting regarding the interrogation of detainees by U.S. personnel or contractors.

ANSWER: In addition to the three opinions issued by OLC in May 2005, I assisted in preparing the public December 30, 2004 opinion interpreting the federal anti-torture statute. In addition, I authored two opinions related to the CIA program in 2006 and one in 2007. The latter opinion was provided in conjunction with the President’s issuance of Executive Order 13440 setting forth the legal requirements for the CIA program in accordance with the Military Commissions Act of 2006. I also provided or participated in providing other legal advice relevant to the CIA program, either orally or by letter, from time to time in the period from 2004 to the present, and also presented testimony or briefings or participated in preparing letters on the subject to Committees of Congress and their Members and staffs. Finally, I assisted in drafting legal advice and testimony concerning Department of Defense interrogation policies during the tenure of Assistant Attorney General Jack Goldsmith in 2004.

Here’s what Bradbury admits to being involved with:

The only advice he admits being involved with for DOD is limited to the aborted effort to draft a replacement for the Yoo Memo in 2004. And he clearly limits that activity to 2004.

Which means that, when John Conyers asked Bradbury to list every opinion he had written on interrogation, Bradbury did not do so. He hid at least this memo.

I find that interesting not just because Bradbury provided an incomplete answer to Congress on the torture program. But since we still have no idea what authorization DOD used from 2004 until 2006, when Bradbury wrote this memo, Bradbury’s non-disclosure raises the question of what else Bradbury and the Bush Administration may have hidden about OLC approvals for DOD’s torture program.

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.) Read more

Did DOD Have ANY Authorization for Torture after 2004?

There are a couple of things that have been bugging me about the authorizations DOD got for interrogations.  It’s not clear what kind of authorization DOD used to justify detainee interrogations after the Yoo memo was withdrawn in 2003-2004–they had no overall interrogation approval from OLC. While it’s possible they were just relying on already-existing DOD documents, there are hints that DOD was either relying exclusively on the CIA’s more expansive authorizations (that included waterboarding), or they had some alternative approval that may not have involved OLC at all.

As I’ve shown (here and here), in March 2004, DOD requested approval to use–at the least–extended isolation with detainees. In response, Jack Goldsmith and Steven Bradbury started trying to replace the 2003 Yoo memo.

At precisely the same time, Goldsmith was working through the mess created by the Legal Principles document. As you recall, faced with clearly illegal conduct and with the opportunity to investigate that conduct themselves in 2003, CIA worked back channel with Jennifer Koester and John Yoo to summarize the legal advice given on torture, going so far as to claim certain techniques (like abdominal slap and diapers) had been approved when they hadn’t been. During that period, Koester and Yoo gave CIA an opportunity to review and provide input on the 2003 Yoo memo. Then, Koester and Yoo relied on the Yoo memo for several of the claims they made in the Legal Principles. That raises the possibility that one reason the Yoo memo was so bad (it was even more permissive than the Bybee One memo) was to help CIA avoid criminal liability for crimes already committed.

At the very least, this is proof that CIA and DOD were both relying on advice given to the other agency to justify their own agency’s actions. We know DOD used the Bybee memos (and oral authorization from Yoo based on that analysis) to authorize its treatment of Mohammed al-Qahtani in 2002-2003. And the Legal Principles show CIA was using the Yoo memo, written for DOD, to authorize its treatment of multiple detainees in anticipation of the CIA IG Report. In other words, though DOJ liked to maintain the fiction that the approval tracks for CIA and DOD were separate, they weren’t, at least not when John Yoo was involved.

And that was becoming crystal clear in spring of 2004. (In the same phone conversation in which Goldsmith confirmed that the Legal Principles weren’t an official OLC document, he also asked Yoo for details of his verbal authorizations to Jim Haynes leading up to the al-Qahtani torture, so he clearly pursued these issues in tandem.)

Yet after that, CIA’s memos got withdrawn and replaced. DOD’s Yoo memo reportedly was withdrawn. But no formal guidance from OLC ever replaced it.

So what happened after that point?

The Daniel Levin Memo

My concerns about DOD’s later authorizations stem partly from a memo Daniel Levin wrote John Ashcroft and Jim Comey in September 2004 to summarize all the advice OLC had given on torture. Read more

Steven Bradbury: Breaking His Own Rules Even as He Writes Them

I’m working on a big post on the May 2005 Bradbury Memos. But I wanted to point out this tidbit about them in the interim.

As you might recall, the Jim Comey emails (probably leaked by the torture apologists last summer) provide a few clues about why Comey objected to the May 10, 2005 Combined memo. Significantly, he thought the memo was too general because it did not stick to the facts regarding one detainee who had already been tortured.

I also suggested a possible way to narrow the focus of the second opinion to be more responsible.


[Alberto Gonzales’ Chief of Staff Ted Ullyot] said Pat had shared my concerns, which he understood as concerns about the prospective nature of the opinion and its focus on “prototypical” interrogation.


He mentioned at one point that OLC didn’t feel like it could accede to my request to make the opinion focused on one person because they don’t give retrospective advice. I said I understood that, but that the treatment of that person had been the subject of oral advice, which OLC would simply be confirming in writing, something they do quite often.

As it happens, just six days after the Combined memo was published, Steven Bradbury issued a set of “Best Practices” for OLC. On at least two counts, his “Best Practices” violated the entire set of the May 2005 memos. In particularly, though, he warned against writing memos that were either retrospective or overly general.

The legal question presented should be focused and concrete; OLC generally avoids undertaking a general survey of an area of law or a broad, abstract legal opinion.


Finally, the opinions of the Office should address legal questions prospectively; OLC avoids opining on the legality of past conduct (though from time to time we may issue prospective opinions that confirm or memorialize past advice or that necessarily bear on past conduct).

And yet, the Combined memo suffered from the fault of being both retrospective to that one detainee and overly general.

I wonder if that’s one of the reasons why Michael Mukasey spiked Office of Professional Responsibility’s proposed review of these memos.