The DHS Report on Maher Arar

Marty Lederman links to the DHS OIG report on Maher Arar’s transfer to and subsequent torture in Syria. It’s really really ugly reading, even though they’ve obviously redacted a lot of the paragraphs that ought to reveal the decision making process by which we decided sending Arar home to Canada or even to Switzerland so instead sent him to be tortured (many of the redacted paragraphs are marked with "U’s,"
signifying they’re unclassified).

Anyway, some more light reading to bring with me on my trip to Minneaplis this weekend for the Media Reform Conference.

In the meantime, I’m struck by this bit from Marty:

Interestingly, in his own testimony today, the Homeland Security IG states that "we have reopened our review into the Mr. Arar matter because, less than a month ago, we received additional information that contradicts one of the conclusions in our report. As such, we are in the process of conducting additional interviews to determine the validity of this information to the extent we can."

It’s not clear what the IG is treating as conclusions. But one of the big issues in the report–predictably–was how the hell it was that DOJ reviewed Syria’s human rights record and didn’t notice (right, yeah) that Arar was likely to be tortured. So I’m curious if the IG learned some new details about that decision-making process.

The JAG Dismisses the Unitary Executive

Via POGO, the Pentagon has made two key documents relating to the military’s use of torture available on its website: a March 2003 JAG Memo slamming a draft of the Working Group’s Report on Detainee Interrogation, and the Working Group’s Report which was published the following month. As POGO notes, these documents were declassified some time ago (Marty Lederman had posted the JAG one here and WaPo posted the report here), but they provide important context to the discussions surrounding John Yoo’s March 2003 Torture Memo.

I’ll come back to the Working Group Report (which lays out the potential risks for when the public discovers the US is using torture and has a nifty list of the ways our interrogation techniques would piss off our allies), but for now I just wanted to show how dubious the Judge Advocate general, General Thomas Romig, found John Yoo’s (and the Administration’s) Unitary Executive theories to be:

The Office of Legal Counsel (OLC), Department of Justice (DOJ), provided DOD with its analysis of international and domestic law as it relates to the interrogation of detainees held by the United States Government. This analysis was incorporated into the subject draft Report and forms, almost exclusively, the legal framework for the Report’s Conclusions, Recommendations, and PowerPoint spreadsheet analysis of interrogation techniques in issue. I am concerned with several pivotal aspects of the OLC opinion.

While the OLC analysis speaks to a number of defenses that could be raised on behalf of those who engage in interrogation techniques later perceived to be illegal, the "bottom line" defense proffered by OLC is an exceptionally broad concept of "necessity." This defense is based on the premise that any existing federal statutory provision or international obligation is unconstitutional per se, where it otherwise prohibits conduct viewed by the President, acting in his capacity as Commander-in-Chief, as essential to his capacity to wage war. I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. If such a defense is not available, soldiers ordered to use otherwise illegal techniques run a substantial risk of criminal prosecution or personal liability arising from a civil lawsuit.

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John Yoo v. Alice Fisher and Michael Chertoff

Man, if you had to choose whom to believe between John Yoo or Alice Fisher and Michael Chertoff who would it be? John Yoo is a hack–but he’s an unashamed hack, proud of his accomplishments. Alice Fisher? Michael Chertoff? They’re more of the dishonest hack type.

The reason I ask is that there’s a seeming contradiction between what Yoo claims in his March 2003 torture memo regarding DOD practices and Alice Fisher and Michael Chertoff’s statements to DOJ’s OIG regarding related events. At issue is whether the Criminal Division of DOJ–Fisher was the Deputy Assistant Attorney General in 2003, and just resigned from Criminal Division Chief; Chertoff was head of the Criminal Division when the Administration was developing its torture policies–told OLC how they would treat certain actions criminally. The Yoo Torture Memo claims that OLC had consulted with the Criminal Division about which statutes would not apply to the military during the conduct of war:

The Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war.

But the DOJ OIG report on torture records Alice Fisher stating that the Criminal Division did not give advice–at least not on the techniques themselves.

Fisher stated that at some point she became aware that the CIA requested advice regarding specific interrogation techniques and that OLC had conducted a legal analysis. She also said she was aware of two OLC memoranda on that topic, but they did not relate to the FBI. Fisher also told the OIG that Chertoff was very clear that the Criminal Division was not giving advice on which interrogation techniques were permissible and was not "signing off" in advance on any techniques. (page 70fn; 113/438)

And Chertoff claims that he was asked–but refused to give–sign off on particular techniques.

Chertoff said that the Criminal Division was asked to provide an "advance declination" in connection with the CIA’s use of some techniques, but that he had refused to provide it.  (page 100-101; 143-4/438)

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“The Waterboard”

The ACLU has a bunch of new documents on water-boarding posted–including a very heavily redacted draft of the 2004 CIA OIG report on the CIA’s interrogation methods. The report is interesting for three reasons:

  • The way they refer to water-boarding
  • The timing
  • The rationale

The Waterboard

One of the very few things they’ve left unredacted (in all these heavily redacted documents) are the references to water-boarding. But they don’t use it as a verb, "to water-board." Rather, they almost always refer to it as "the waterboard."

The water board technique

interrogators administered [redacted] the waterboard to Al-Nashiri

interrogators used the waterboard on Khalid Sheykh Mohammad

Cables indicate that interrogators [redacted] applied the waterboard technique to Khalid Sheykh Mohammad

waterboard session of Abu Zubaydah

waterboard on Abu Zubaydah

The waterboard has been used on three detainees: Aby Zubaydah, Al-Nashiri, and Khalid Sheykh Mohammad

I don’t know why this bugs me so much, but it does. It really emphasizes the clinical and bureaucratic nature of this practices, and pretends that human beings are not the ones inflicting it.

The Timing

The ACLU refers to this as a "draft document," though there is nothing on what is visible on the cover page to suggest this wasn’t a final draft–so we can’t be sure whether the date on the report is the date when it was finally released.

Still, I find the date worthy of note: May 7, 2004. Read more

Second Working Thread on DOJ OIG Torture Report

The comments on the previous thread on the DOJ OIG Torture Report just closed.

But I’ve been meaning to start a new thread with a link to the searchable report that Selise made. Selise adds:

  1. Appendix B and C I did not convert.
  2. I compressed the file when I was done (it got up to 72MB) so it’s back to about 6 MB.
  3. if there are any important errors I should correct, just let me know…

Working Thread: DOJ IG Report on Torture

William Ockham and masaccio have been making very interesting comments about the DOJ IG report on torture for the last several days, and I decided it was high time to put up a working thread on the report.

To kick us off, let me point to a long masaccio comment in which he explores the apparent plan–subsequently scotched–to transfer al-Qahtani out of Gitmo so he could be tortured more aggressively.

WilliamOckham asked on an earlier thread about the redactions in the chapter on Al-Qahtani. I have been looking at that chapter, and I am pretty sure the missing word is transfer or transport. Most of the deletions to that point in the report relate to one of three things: detention locations other than Iraq, Bagram, and GTMO; techniques of interrogation used on specific people; and agencies, probably including the CIA and perhaps its personnel and divisions.

When we get to Chapter 5 on Al-Qahtani, we see the redaction in question. Apparently the point of interviewing him was to see what he could tell people about the 9/11 attacks, since he was believed to be the twentieth hijacker. In line with the other redactions, we see CIA, or some other three letter word redacted, and more redactions of techniques and people. We get a real hint about the word transfer or transport from footnote 71, which specifically states that there was a proposal to move Al-Qahtani to Jordan or Egypt to allow them to use other techniques. This appears in the text at least once, at page 88. The use of SERE techniques is raised, and footnote 62 says that these include dietary manipulation, sleep deprivation, nudity and waterboarding. There are several other mentions of the use of waterboarding.

There are several references to the intention of the military to very aggressive techniques, using words like relentless, and sustained attack (p. 90). Then there is this:

According to the FBI, [its agents] had concerns not only about the proposed techniques, but also about the “glee” with which the would-be participants discussed their respective roles in carrying out these techniques and the “utter lack of sophistication” and “circus-like atmosphere” within this interrogation strategy session.

This lead me to speculate that the key to the redaction is that the transfer in question is not the transfer to Jordan or Egypt, but to an American black site where US personnel or contractors would torture him. Read more

DOD and Torture Declassification Timing

I think I’ll be doing a series of posts on the DOJ IG report on torture. In this post, I will look at some of the timing surrounding torture declassification.

The very first footnote in the 300-odd page report sticks a shiv into DOD for its stalling on this report:

The OIG has redacted (blacked out) from the public version of this report information that the FBI, the Central Intelligence Agency (CIA) or the Department of Defense (DOD) considered classified. We have provided full versions of the classified reports to the Department of Justice, the CIA, the DOD, and Congressional committees. The effort to identify classified information in this report has been a significant factor delaying release of the report. To obtain the agencies’ classification comments, we provided a draft report to the FBI, the CIA, and the DOD for classification review on October 25, 2007. The FBI and the CIA provided timely responses. The DOD’s response was not timely. Eventually, the DOD provided initial classification comments to us on March 28, 2008. However, we believed those classification marking were over-inclusive. After several additional weeks of discussion with the DOD about these issues the DOD provided revised classification comments. The DOD’s delay in providing comments, and its over-inclusive initial comments, delayed release of this report.

This is not the first we’ve heard of DOD’s stalling. In an April interview with McClatchy, Fine complained about it.

Marisa Taylor reports that DOD is stalling the release of a DOJ IG report on the FBI’s role in torture.

The release of a report on the FBI’s role in the interrogations of prisoners in Afghanistan, Guantanamo Bay and Iraq has been delayed for months because the Pentagon is reviewing how much of it should remain classified, according to the Justice Department’s watchdog.

Glenn Fine, the Justice Department’s inspector general, told McClatchy that his office has pressed the Defense Department to finish its review, but officials there haven’t completed the process "in a timely fashion."

"Why that happened, I don’t know," Fine said in an interview this week.

Tell me, Marisa Taylor, did Fine have a smirk on his face when he said that? I couldn’t imagine why DOD would be stalling the release of this report!

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Out of Scope: The DOJ IG Report

I’ve just now finished reading the conclusion of the Department of Justice Inspector General’s report on torture. I gotta say, I’m not surprised Alice Fisher chose this week to quit, nor am I surprised that Gitmo’s Convening Authority decided not to charge al-Qahtani, as both Fisher and Qahtani figure prominently in the report.

The other general comment I have about the report is about its scope: it was designed to protect the Administration and its method of legalizing torture. For example, the report notes:

We did not examine issues related to DOJ Office of Legal Counsel opinions concerning the legality of several interrogation techniques the CIA sought to use on certain high value detainees. While senior FBI and DOJ officials were aware of these opinions, an assessment of the validity of the OLC legal opinions was beyond the scope of this review.

Similarly, the IG report apparently did not review what happened to complaints about torture once they got to Bush’s top aides (though the report doesn’t actually say whether this was because of a scope issue or because Bush’s aides refused to cooperate).

On a broader level, we were unable to determine definitively whether the concerns of the FBI and DOJ about DOD interrogation techniques were ever addressed by any of the structures created for resolving inter-agency disputes about antiterrorism issues. These structures included the Policy Coordinating Committee, the "Principals" Committee, and the "Deputies" Committee, all chaired by the National Security Council (NSC). Several senior DOJ Criminal Division officials also told us that they raised concerns about particular DOD detainee practices in 2003 with the National Security Council, but they did not recall learning that any changes were made at GTMO as a result. Several witnesses told us that they believed that Attorney General Ashcroft spoke with the NSC or the DOD about these concerns, but former Attorney General Ashcroft declined our request for an interview in connection with this report.

Of course, there is no Inspector General function for the NSC–it’s one big executive privilege black hole in which complaints about torture can be buried. Make no mistake, though, the implication is that Condi Rice, Stephen Hadley, Dick Cheney, and Rummy did nothing apparent to resolve the inter-Agency tensions about torture.

But John Ashcroft? Refusing to meet with DOJ’s own Inspector General to talk about torture? Read more

Sunset Musings

It was a nice quiet weekend; thankfully somewhat thin on bad and/or outrageous news. Other than all the allergens that are currently thick as soup in the air, the weather here is perfect; 90 degrees and not a cloud in sight. Perfect day to get the backyard and pool ready for the summer. There are a couple of legal pieces on the various Bush atrocities of government I should probably work on, but that just seems like a little too much work as I sit here on the patio watching the sunset turn Camelback Mountain the most beautiful shades of purple, crimson, and gold that you can imagine. My wife calls sunsets like this "golden hour", they are truly stunning. The attached picture is from Flickr via Google Images, but I swear it must have been taken from my front yard; it is exactly the view I have as I write this post. Well, almost exactly, this is clearly taken at sunrise, because the view is looking to the east. It is a little hard to make out, but the pointed rock immediately underneath the sun is known as the Praying Monk. When the light is right, it really does bear a remarkable resemblance to it’s namesake.

The Casa de bmaz travelogue portion of this post thus complete, I would like to point out a recent New York Times story. It is the story of Sami al-Hajj, an individual caught up in Bush’s berserker war on terror. Often in our discussions Hannah Arendt’s phrase "the banality of evil" is applied; but it is not a metaphor, it really is the truth about our country these days. The following story is reported in national media, including the New York Times, but with a casual nonchalance that is an ox gore to our collective national soul.

Courtesy of William Glaberton at the New York Times, is the tale of Sami al-Hajj

A former cameraman for Al Jazeera who was believed to be the only journalist held at Guantánamo Bay was released on Thursday, after more than six years of detention that made him one of the best known Guantánamo detainees in the Arab world, his lawyers said.

“It is yet another case where the U.S. has held someone for years and years and years on the flimsiest Read more

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