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. Since waterboarding is mentioned, and other techniques are deleted, I think there is a chance the redacted techniques may be even more medieval.

There are two other interesting things. First, the whole discussion is in the context of deciding whether the FBI or the DoD would head up the interrogation. The FBI took the position that its techniques were best if they were given plenty of time for them to work, while DoD should take the lead if there was an immediate need for military intelligence. Once Al-Qahtani was captured, it seems obvious that FBI should take the lead, since their techniques had proven successful and accurate, given time. But the military just steamrolled them.

The second thing is the porous memory of Alice Fisher, who “did not recall” much of anything. Other people told the OIG they talked to her, and she just doesn’t remember the substance of those discussions. There is a nice example on page 98.

One thing I’d add to support masaccio’s argument that the treatment in question went beyond water-boarding is that they always refer to the treatment that Abu Zubaydah underwent–not the one that Khalid Sheikh Mohammed did (not to mention al-Nashiri). That suggests the possibility that there’s something Abu Zubaydah underwent that the other two confirmed detainees who were water-boarded did not undergo.

Update: per masaccio’s suggestion, let’s cite page numbers according to the page number in the PDF reader rather than the actual page number. This will make it easier to find each other’s references. So, for example, instead of referring to the page numbered as 18, refer to 61/438.

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!

Though Fine suggests there has been some recent movement in the classification review process.

Fine said the Pentagon now appears to be moving on his request.

"My sense is they are working hard on it now, and I believe we’re going to reach a resolution one way or another in the not-too-distant future," he said. [my emphasis]

Tell me, Glenn Fine, did this sudden responsiveness on the part of the DOD start in the last three weeks or so.

As it turns out, yes, the sudden (partial) responsiveness had started two weeks earlier, on March 28. That means DOD first sent its declassification comments to DOJ just three days before Daniel Dell’Orto declassified John Yoo’s torture memo.

Declassify under authority of Executive Order 1958
By Acting General Counsel, Department of Defense,
By Daniel J. Dell’Orto
31 March 2008

So let’s review the timing, shall we?

February 25: Jim Haynes resigns

March 10 (estimated): Jim Haynes’ resignation takes effect

March 28: DOD first provides declassification comments

March 31: DOD declassifies Yoo torture memo

DOD suddenly got a lot more forthcoming in March, didn’t it?

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? Keep in mind, the Inspectors General Offices are supposed to have some independence from the heads of their agencies–in the case of DOJ’s IG, the Attorney General–specifically so they can include a review of the Attorney General’s behaviors in matters of concern.

But I guess John Ashcroft would rather help the Administration bury the concerns about torture by refusing to cooperate.

Well, I’ve got about 350 pages of the report left to read. Better, I guess, to walk into it knowing that the report skirts three big black holes that hide the most important discussions about torture. If nothing else, the way in which this report does not and cannot discuss the issues that OLC, Condi Rice, and John Ashcroft apparently faced tells you what we need to know about torture.

Update: In somewhat related news, the Center for Constitutional Rights, which represents Qahtani, reveals that Qahtani tried to commit suicide last month after he was charged. Neither CCR nor Qahtani’s family were informed of the suicide attempt.

Newly declassified notes from Center for Constitutional Rights (CCR) attorney Gitanjali Gutierrez’s meetings with her client, Mohammed al Qahtani, earlier this month reveal that he attempted suicide in early April after he learned death penalty charges were referred against him by the government to the Military Commissions at Guantanamo. Mr. al Qahtani cut himself a series of times with escalating severity. His third cut resulted in a deep wound, profuse bleeding and hospitalization.

Mr. al Qahtani told his attorney, "I cannot accept this injustice. If I have to stay in this jail I want to put an end to this suffering."

Neither his lawyers nor his family were notified of his attempted suicide or his hospitalization following the attempt at taking his life.

When Ms. Gutierrez met with her client the week of April 28, 2008, she noticed the scars immediately: "I was shocked because, except for a period during his torture in 2002, Mohammed has not been suicidal or self-injurious at Guantanamo."

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 of evidence” without filing charges, one of the lawyers, Zachary Katznelson, said Thursday.
…
The Pentagon several times changed its assertions about Mr. Hajj. But military officials have insisted recently that he carried money intended for Chechen rebels.

He had been an Al Jazeera employee for only a short time when he was captured in 2001 by Pakistani forces at the Afghan border. He was later turned over to American forces and, in 2002, sent to Guantánamo.

Bill Bennett made a cottage industry of screaming "where’s the outrage" in the late 90’s. Of course, right wing scrap hack that he is, Bennett was talking about the passivity of the nation toward a man getting a consensual blowjob from a adult woman. Screw Bill Bennett, I want to know where the outrage is over the fact that our country is effectively buying human beings in foreign countries and locking them in "enhanced interrogation" dungeons indefinitely based either on no probative evidence whatsoever, or on ever changing hoaked up bunk cobbled together on the fly as a means to their torture slave ends.

The pathetically ironic part of this story is Glaberton plowing through how journalists have not covered the story of a mistreated journalist.

The case did not draw the attention among American journalists that some of them said it deserved, in part because Mr. Hajj’s full life story was not known. As with most Guantánamo detainees, the Pentagon’s evidence against him was largely secret.
…
“I would have rather seen more of an outcry,” said Joel Simon, executive director of the Committee to Protect Journalists, which tried to call attention Mr. Hajj’s detention. Mr. Simon said the case was part of what he called a disturbing trend of the American military to hold journalists for long periods without charges before eventually releasing them. He said his group had documented 11 such cases since 2001.

Two critical concepts of immense importance to the fundamental nature of what this country is, what it stands for, and how it’s citizens are informed by their press, and it is published with all the introspection, analysis and professionalism of a freaking high school bake sale announcement.

I started writing this post Saturday afternoon, but it kind of got put on the back burner with all the outdoor fun we have been having here the last few days. As the comments appear to have closed on the last thread, I wanted to get something up. I have several other pieces that I am working on and will start putting up tonight; looks like a busy week ahead. Be back soon…..

UPDATE: There is another recent detainee story that deserves mention in the category of Bush/US Government cravenness as well. It is the story of young Canadian Omar Khadr, now 21, but only 15 years old when captured at the side of his dying father in a firefight in Afghanistan.

A Canadian captured in Afghanistan at age 15 can be tried for murder in the Guantanamo war crimes court, a U.S. military judge ruled in rejecting claims that he was a child soldier who should be rehabilitated rather than prosecuted.
…
His military lawyer, Lt. Cmdr. William Kuebler, had argued in February hearings at the Guantanamo naval base that Khadr was a child soldier illegally conscripted by his father, an al Qaeda financier. He urged the judge to drop the charges, which carry a maximum penalty of life in prison.
…
Kuebler called the ruling "an embarrassment to the United States" and said Canada would share in the embarrassment if it allows its citizen to be tried at Guantanamo. He said Khadr would be the first child soldier tried for war crimes in modern history.

The United States and Canada have ratified an international treaty, the Child Soldier Protocol, that outlaws recruitment of combatants under age 18 and requires governments to help child soldiers recover and reintegrate into society.

Lovely. Bush has treated yet another seminal international human rights treaty, ratified and adopted by the United States as the law of the land, as "just a damn piece of paper". Not only are we violating the Child Soldier Protocol to prosecute young Khadr, there is a serious question as to the truthfulness of the allegations against him. As Ishmael and Skdadl have pointed out previously, the Canadians are not exactly acquitting themselves well on the Khadr case either; they should be standing up for the propriety and spirit of the law, irrespective of whether Khadr is ultimately guilty. Crickets chirping in the yard up north too.

In regards to detainee issues, when I started plumbing some depths for a couple of sub-issues, I stumbled into this dissertation that is very thorough and useful. Report On Guantanamo Detainees by Mark (Seton Hall Law Professor) and Joshua (attorney) Denbeaux. Pretty outstanding resource, check it out.