A Bush EO on Torture?

As Keith O reported last night, Jason Leopold found a curious reference in an email that was in the ACLU’s FOIA document dumps (there’s a reference to it, too, in the DOJ IG Report on torture, starting on page 137). It seems to suggest President Bush signed an Executive Order authorizing "sleep management," the use of dogs, stress positions, environmental management, and sensory deprivation.

Before we hunt for the EO, here’s what this document appears to be. In May 2004, in the wake of the Abu Ghraib scandal, the FBI sent out an order requiring that "if an FBI employee knows or  suspects non-FBI personnel has abused or is abusing or mistreating a detainee, the FBI employee must report the incident."

In response to that order, the on-scene commander in Baghdad tried to get more direction on what the order meant by "abuse" on May 22. He (or she) wanted to know whether techniques not authorized for FBI personnel–but authorized for others (presumably both intelligence and military personnel)–should be considered. In the FBI commander’s understanding, Bush signed an EO some time in the past that authorized abusive techniques.

We are aware that prior to a revision in policy last week, an Executive Order signed by President Bush authorized the following interrogation techniques among others: sleep "management," use of MWDs (military working dogs), "stress positions" such as half squats, "environmental manipulation" such as the use of loud music, sensory deprivation through the use of hoods, etc.

It appears the unit in question may be the Special Mission Unit Task Force, a Special Ops unit conducting high level interrogations. The SASC Report describes what appears to be a similar set of techniques available for the SMU TF that were changed not long before the FBI commander sent the email. (This section appears on page 222, but there’s more discussion of this unit starting on page 158.)

[two lines redacted] Prior to March 2004, however, each operated under a distinct interrogation SOP. On March 26, 2004 the SMU TF implemented a single interrogation policy that covered SMU TF operations in both Iraq and Afghanistan. 

The March 26, 2004 SMU SOP authorized 14 "interrogation techniques" not explicitly listed in FM 34-52 [the Army Field Manual], including use of muzzled dogs, "safety positions (during interrogations)," sleep adjustment/management, mild physical contact, isolation, sensory overload, sensory deprivation, and dietary manipulation.

According to the Church Special Focus Team Report, the March 26, 2004 SMU TF SOP included a larger number of interrogation techniques outside of FM 34-52 than the SOPs of any other military organization at the time. 1733 In fact, many of the techniques in that SOP had been abandoned by conventional forces in Afghanistan months earlier, after CENTCOM identified legal concerns with the techniques. 1734 Although the authority in the March SOP to use "muzzled dogs" was rescinded on April 22, 2004, the remainder of the techniques remained authorized until May 6, 2004, when GEN John Abizaid, the CENTCOM Commander, suspended use of all non-FM 34-52 techniques. 1735 The Church Special Focus Team report said the techniques were suspended as a result of detainee abuse at Abu Ghraib. 1736 GEN Abizaid stated that neither he nor his staff"reviewed or approved" the March 2004 SMU TF SOP "prior to its issuance.

A footnote describes what all these techniques were–and show that they were changed on May 18, which would correlate with the revision in policy the previous week described in the FBI email.

The 14 techniques were the use of military working dogs, safety positions·(during interrogations), use of blackened goggles/ear muffs during interrogation, sleep adjustment/sleep management, use of female interrogators, sensory deprivation, sensory overload, change of environment/ environmental manipulation, diet manipulation, use of falsified documents or reports and deception, use of individual fears, use of isolation, fear of long-term incarceration, and mild physical contact. Battlefield Interrogation Team and Temporary Screening Facility Standing Operating Procedures (SOP), Change 2 Dated May 18, 2004.

(Note, the report also describes the SMU TF Commander writing to ask to retain many of these techniques–though that happened the day after the FBI commander wrote the email.)

So this may well be the set of approved techniques the FBI commander described.

But that doesn’t tell us how they got approved. The passage clearly shows that General Abizaid at least claimed never to have seen the Standard Operating Procedure this unit was using in interrogations. An earlier passage explains that SMU TF’s interrogation techniques came from Rummy’s approval of techniques–intended for Gitmo–on December 2, 2002 and adopted by the SMU TF unit via Afghanistan. Still another reference–referring to techniques used in 2003–said Lieutenant General Ricardo Sanchez and Colonel Thomas Pappas "were unaware of what interrogations were authorized" for the unit. Finally, another passage describes how the commander of the unit disdained the notion of approving a summer 2003 version of the unit’s interrogation techniques.

[redacted] The July 15, 2003 policy contained the signature block of the SMU TF Commander [redacted] but was unsigned. [redacted] told the Committee that he did not think he ever approved or even saw an interrogation policy. He stated, however, that he was aware that the SMU TF used sleep deprivation, loud music, light control, isolation, "comfort positions," and military working dogs. The SMU Task Force Legal Advisor who served at the facility in July and August 2003 stated that he was sure [redacted] saw the policy, that he asked him to sign it, and that a copy of the policy sat in the Commander’s inbox during the Legal Advisor’s deployment to the Task Force.

[redacted] The SMU Task Force’s Legal Advisor who arrived at the TF facility in late August 2003 likewise said that his predecessor had tried, without success, to get [redacted] to sign the policy. That same Legal Advisor stated that he too tried numerous times, also unsuccessfully, to get the Commander to sign the policy. The Legal Advisor added that it got to the point where he would print out a fresh copy of the policy every night and give it to [redacted] aide. The Legal Advisor said that he knew the Commander had received copies of the policy from his aide, but that he had a habit of "losing" the draft policy. He said that the exercise became "laughable" and eventually, he was forced to raise the issue with the [redacted] legal advisor. In the absence of [redacted] the Legal Advisor told the Committee that his direction to SMU personnel was that the unsigned SOP applied to SMU TF interrogations.

Now, between the time this mockery occurred and the 2004 incidents referred to by the FBI commander, the abuses of this unit had received significant notice. In particular, Colonel Steven Kleinman–who did a JPRA training session with the unit in September 2003–repeatedly warned unit members they were violating the Geneva Conventions. Ultimately, Kleinman was physically threatened and JPRA was withdrawn.

Lt Col Kleinman referred to the DoD IG report’s statement that "friction was developing" as an understatement and said that he felt his life was being threatened at the SMU TF. 1437 He recalled one instance (after he stopped what he believed to be in violation ofthe Geneva Conventions) in which an SMU TF member told him, while sharpening a knife, to "sleep lightly," noting that they did not "coddl[e] terrorists" at the SMU TF.

And there were a number of other warnings in 2003. Hell, even the CIA had told the unit–very early on–they were getting out of control. 

In May 2003, CAPT Dalton, Legal Counsel to the Chairman ofthe Joint Chiefs of Staff, sent an email to CENTCOM lawyers stating that CIA General Counsel Scott Muller had called Jim Haynes and told him that the techniques used by military interrogators at the SMU TF facility in Iraq were "more aggressive" than techniques used by CIA to interrogate the same detainees.

All of these details tell us that high level commanders should have known what was going on in the unit, and should have known this was going to be a problem. They should have been concerned enough to make sure these techniques had authorization from somewhere.

But it doesn’t explain who had approved the techniques in use in early 2004, described by the FBI commander (according to the email, he or she arrived in Iraq on January 10, 2004). And from the sounds of things, the guys doing the interrogations had told the FBI that President Bush had signed an Executive Order authorizing it.

A review of the EOs signed by Bush prior to this point shows that it is not a discrete EO (2001, 2002, 2003, 2004). 

I can think of two possibilities that leaves. 

First, it’s possible these guys–who are special ops–are just cowboys who don’t give a rat’s ass whether the torture they’re committing is approved or not. No one seems to have cared whether they had signed approval for these things. So maybe these guys told the FBI commander that Bush had approved to shut him up.

It’s possible, too, that Bush (or Cheney) simply gave them a written authorization that doesn’t formally amount to an EO that would be printed in the Federal Register.

But there’s another possibility. As intelligence interrogators (at one point, the SASC report describes them as seeking intelligence information), these guys’ activities would fall under EO 12333, the EO that has governed intelligence activities since Reagan.  That EO does have several passages on military intelligence activities. And that’s an EO we know Bush "modified" without actually changing in writing. If Bush was in there anyway, eliminating restrictions on wiretapping Americans and–potentially–eliminating the prohibition on assassination, then why not pixie dust the EO to allow the special forces to torture, too?

In any case, the abuses committed by this unit were widely known, yet have not–AFAIK–been prosecuted (and the FBI discussions about the email in the DOJ IG Report show no great alarm at the report). That suggests they had authorization from someone. Was it from Bush?

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61 replies
  1. behindthefall says:

    Lack of education in this stuff showing, here … What’s ‘SMU TF’?

    Ah. ‘TF’ == ‘Task Force’ ‘SMU’ == “Special Military Unit’ or some such? Was this kind of a traveling interrogation group. (Just inferring.)

    • robspierre says:

      It’s a trivial observation on a non-trivial piece of information, but am I the only one that finds it odd that the elite military unit that made naked pictures, naked lady interrogators, sodomy, and torture US policy at Abu Graib was called SMUT Force?

      • pmorlan says:

        I wonder if they were called this before torture was introduced? Does anyone know? If they weren’t someone in the Bush administration sure has a sick sense of humor (well, we already know that I guess from other things). Maybe it’s just a bizarre coincidence.

      • Nell says:

        I don’t know that the Task Force did any interrogations at Abu Ghraib; they had their own secret prisons, one of which was a facility Saddam Hussein formerly used in the same way: as a torture center.

  2. Leen says:

    Kleinman’s interview on NPR a few days ago was Sereing

    http://www.npr.org/templates/s…..=103421778

    Karpinski is making the rounds. She was on CNN this morning focused on how lower level soldiers are and have been doing time for the up line torture criminals. Can not find the clip yet

  3. emptywheel says:

    Special Mission Unit. Moon of Alabama suggests they were Navy Seals, though I don’t know why.

    In any case, precisely the kind of unit that–per Sy Hersh’s reporting–may have had a direct chain of command to OVP.

    • behindthefall says:

      Thanks. Directly run by OVP, eh? Yet another Team B operation. It occurs to me that Cheney’s fascination to parallel command structures may come from something that predates annoyance with Nixon’s fate. It might be something that shows up throughout his life, or at least from pretty early on. I wonder if reading up on how he has operated since childhood might turn up some other techniques that he has used repeatedly, things that could pry up another corner of this coffin-lid. I have to say, he made the OVP itself into a parallel power structure. (He must be such a coward.)

      • Styve says:

        Cheney pulled the parallel chain of command trick in the nuclear weapons arena back in 2007 when the nukes went missing from Minot AFB.

        He’s a sick one!

        • pmorlan says:

          What do you mean? Do you have a link? I know about Minot but I hadn’t heard about Cheney being involved. Is there something out there that says this?

        • pmorlan says:

          Thank you very much for supplying the link. I agree with you that there is no evidence cited other than Wayne Madsen’s view. I think there are a lot of unanswered questions about the Minot incidents but I want to see evidence, not just opinion.

  4. JimWhite says:

    There are more aspects to the December 2, 2002 techniques approved by DoD for GITMO. From my favorite document (page 6) in the Pentagon Propaganda Document Dump:

    The techniques still approved on 2 December are largely derived from 34-52. Ego down, futility.

    /snip/

    In GTMO, that ego down translated down to telling the detainee that his mother and sister were whores, he was forced to wear women’s lingerie, multiple allegations of his homosexuality, he was forced to dance with a male interrogator, he was strip searched for control measures, and he was forced to perform dog tricks on a leash.

    Sexual humiliation of this sort absolutely appears in the Abu Ghraib photos (naked guys on dog leashes definitely were there), so it is clear that the GITMO techniques spread throughout DoD. My question is why don’t ego down and futility show up in the FBI email? Are they the difference between 34-52 and what actually happened that upset FBI and other personnel so much they wouldn’t commit them to writing? Are they in the missing document, whether it is an EO or something else?

    • emptywheel says:

      If you read the whole history of SMU TF’s torture in Iraq, they were squabbling over whether nudity would be included in fall 2003. So it may be after that squabble they took out that kind of thing explicitly. But it was in there from the time we went into Iraq until late 2003.

  5. Rayne says:

    There was a Military Order dated November 13, 2001, regarding “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”, issued by George Bush. The MO borders on a second declaration of emergency (one already issued as an EO in September); its wording is also so very loose that some Sections could easily perceived as authorization to do anything as long as the subjects are:

    (a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;

    (b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;

    (c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;

    (d) allowed the free exercise of religion consistent with the requirements of such detention; and

    (e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.

    The MO also outlines the use of military tribunals to try detainees, but also states

    (2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.

    which might be interpreted by non-lawyers as exemption from any international treaties signed by the U.S.

    There may have been more than one Military Order and more which address this issue, I can’t tell from what I’ve see so far.

    There also was a National Security Presidential Directive, NSPD-9, about which Rumsfeld testified in front of the 9/11 Commisssion on March 23, 2004; the wording of that NSPD is not readily available, but likely contains some further instructions as to how national security is supposed to be protected. (Rumsfeld also does a LOT of tap-dancing during this testimony, a lot of filibustering…)

    There are a fair number of NSPDs for which I cannot find the actual text. Again, there could be more among those which address this issue.

    I am still trying to confirm that all EO’s have been recorded at the Archives, that there are none missing or not readily available to us by way of classification.

    • behindthefall says:

      “do anything” as long as they are “treated humanely”?? There’s a disconnect! BTW, the other points (good food, freedom to worship) sound a lot like the stuff that was coming from politicos visiting Gitmo. Do I remember one saying that the inmates got pizza, or some such, and implying — or coming right out and saying — that this meant that their treatment was exemplary?

      • Rayne says:

        Oh, there’s a lot more stuff like this, very loosey-goosey.

        Another suspect National Security Presidential Directive is NSPD-5, which is so described:

        The review is intended to “ensure that U.S. intelligence capabilities are honed to serve us on a wide range of critical challenges that face us now and in the future.”

        The review is to be conducted by two panels named by DCI George Tenet. One panel will be comprised of selected governmental officials. The second panel, to be named by Tenet in conjunction with National Security Adviser Condoleezza Rice, will be composed of nongovernmental experts.

        The review has “a broad mandate to challenge the status quo and explore new and innovative techniques, systems, practices and processes” for foreign intelligence, according to a White House press statement.

        Emphasis mine.

        Two BIG problems here.

        I can’t get my hands on the actual text of the NSPD.

        And the NSPD was issued MAY 9, 2001.

        • Rayne says:

          Yeah, no surprise. I ran across something last night which indicated they were working on Afghanistan just about the same time, summer of 2001.

          What a coincidence.

          Unfortunately I’m suffering from sleep deprivation after reading too much material, cannot remember what I ran into on this topic and it’s essential to show they were working on something well before 9/11.

          Cheney never lost his 9/10 mindset, I guess.

        • Rayne says:

          Bingo, found it.

          It was in Rumsfeld’s testimony:

          A more comprehensive approach required a review not only of U.S. counter-terrorism policy, but also U.S. policies with regard to other countries, some of which had not previously been at the center of U.S. policy. It was a big task. Dr. Rice has stated she asked the National Security Council staff in her first week in office for a new Presidential initiative on al-Qaeda. The staff conducted an overall review of al-Qaeda policy. In early March, the staff was directed to craft a more aggressive strategy aimed at eliminating the al-Qaeda threat. The first draft of that new strategy, in the form of a Presidential directive, was circulated by the NSC staff on June 7, 2001 and I am told some five more meetings were held that summer at the Deputy Secretary level to address the policy questions involved, such as relating an aggressive strategy against the Taliban to U.S.-Pakistan relations. By the first week of September, this process had arrived at a strategy that was presented to Principals and later became National Security Presidential Directive (NSPD)-9.

          The objectives of the new strategy were:
          • To eliminate the al-Qaeda network;
          • To use all elements of national power to do so — diplomatic, military, economic, intelligence, information and law enforcement;
          • To eliminate sanctuaries for al-Qaeda and related terrorist networks – and if diplomatic efforts to do so failed, to consider additional measures.

          The essence of this strategy was contained in NSPD-9. It was the first major substantive national security decision directive issued by this Administration. It was presented for decision by principals on September 4, 2001 – 7 days before September 11th. The directive was signed by the President, with minor changes, and a preamble to reflect the events of 9/11, on October 25, 2001.

          But the timing is just so marvelously tight, isn’t it? Mitchell is like a mind-reader, opening up shop just about the same time the NSC is stewing over a draft of a new al-Qaeda policy.

          Bet you there was either an SAP or an ACCM issued by Rummy’s DoD to Mitchell earlier in 2001. There had been a squabble with Congress regarding oversight of SAPs early in 2001, too.

        • behindthefall says:

          The essence of this strategy was contained in NSPD-9. It was the first major substantive national security decision directive issued by this Administration. It was presented for decision by principals on September 4, 2001 – 7 days before September 11th. The directive was signed by the President, with minor changes, and a preamble to reflect the events of 9/11, on October 25, 2001.

          This is the same time frame when Richard Clark(e?) couldn’t get in through the door and GWB was ignoring daily briefings that said that Al Qaeda was likely to attack domestically, wasn’t it? Why does one half seem to be worked up about Al Qaeda while the other half has no interest? Could it really be that everybody _except_ Bush was thinking about throttling Al Qaeda and that the barrier to getting the POTUS involved was just inside GWB’s skull. (Not that the gov’t was doing such a great job with the old-fashioned police work, like checking flight schools.) (Notice that this commenter is blathering on without having read the 9/11 Commission’s Report. Um… Would that help? Why do I think it wouldn’t …?)

        • Rayne says:

          See Marcus Aurelius’ first principles and Occam’s Razor. It is what it is on the face of it.

          Very simply, the Bush administration did not want to listen to Richard Clarke.

          It’s not that they weren’t making plans with regard to al-Qaeda.

          What Clarke was doing was legitimate, and what they were doing was not; they could not afford to listen to him as it would have put a wrench in what they were doing. They systematically did that with everyone who tried to tell them something wasn’t right — they weaseled around Alberto Mora, blew off Taguba Shinseki, fired Shinseki Taguba, and so on — because those people weren’t right from their frame of reference, merely inconveniences and barriers which needed to be removed.

          [edit: correction to reflect treatment of Taguba/Shinseki, had them flipped]

  6. Aeon says:

    There are a large number of Executive Orders which are classified, and are identified in the Federal Register only by their EO number.

    This one would likely be one of them.

    • Rayne says:

      Any chance you can pull a list of those EO’s shown by number only in the Federal Register?

      Would save me a crapload of time and reading.

      • Aeon says:

        I searched 2003 and 2004, and found only one — No Title Given (no text) dated October 7, 2004 (Volume 69, Number 194). This is too late in the chronology for our purposes, I think. And it is only a “Presidential document”.

        I’m beginning to suspect that the EO we are looking for is a National Security Presidential Directive. When I looked for these, the Federal Register website seemed intentionally confounding, yielding results such as “National Adoption Month.”

        • Rayne says:

          Was there a number on the EO? I can try to narrow down the time issued if I have the number. There may have been an attempt to butt-cover by EO after the fact.

        • Aeon says:

          This is all that came up, it is not an EO, but a Presidential document.

          fr07oc04E No Title Found (Federal Register)
          Size: 324 , Score: 1000 , HTML , PDF , SUMMARY

          [Federal Register: October 7, 2004 (Volume 69, Number 194)]
          [Presidential Documents]
          [Page 60281-60282]
          From the Federal Register Online via GPO Access [wais.access.gpo.gov]
          [DOCID:fr07oc04-94]

          [[Page 60281]]

          [GRAPHIC] [TIFF OMITTED] TD07OC04.030

          [[Page 60282]]

          The above is probably barking up the wrong tree. Sorry.

          BTW, my info about the existence of classified EOs can be verified here.

    • Nell says:

      Thanks for that pointer, WO.

      We have known so much for so long. When I reflect where we’d be without the Abu Ghraib pictures… well, I don’t want to think about that right now. They’ve already got that one in boldface type in the ‘Lessons Learned’ report.

  7. susiedow says:

    Perhaps I am too cynical but I still expect to find out that the Bush administration relied on the AUMF for authority.

    Using their twisted logic, remarks from the DOJ regarding NSA surveillance easily apply to torture:

    Under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty, a point Congress recognized in the preamble to the Authorization for the Use of Military Force (”AUMF”) of September 18, 2001, 115 Stat. 224 (2001): “{T]he President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”

    • timr says:

      Very doubtful.The one listed by the jopurnalist-brain freeze, can’t remember name-was actually the name of special forces command which is located at MacDill AFB in Tampa Fl. This is not a secret command, but is in fact the home for all spec ops groups in the Navy-SEALS, AF-Air Commandos, Army-Delta Force and Marine-Force Recon

  8. ghostof911 says:

    If Bush was in there anyway, eliminating restrictions on wiretapping Americans and–potentially–eliminating the prohibition on assassination…

    So what’s the big deal? The prohibition on assassinations was lifted when Poppy was allowed to take out JFK.

  9. timr says:

    A classified EO? That has been known to happen. Perhaps written in the 2 weeks after 9-11? If classified, then would not be available to the general public, nor would even the title be mentioned where the public can access it.

  10. tjbs says:

    At the Nuremburg War tribunal the least were able to confront the greatest masters all in one big room. And the masters explained their case.
    The WHOLE WORLD watched the visual victims face the monsters. It was to remind us the monsters look just like us but they are missing something inside.
    We must prostrate ourselves before the world and accept their collective judgement for the sins we refused to look at.
    Why haven’t we see scores of pictures of the end game of torture/murder while some clown is droning on about how useful the Chinese Water Torture works? HUH

  11. Nell says:

    I’m very glad if Leopold’s story (and this post) cast more and new light on the ‘Task Force’ special ops units that tortured all over Iraq.

    I’m assuming this is the same outfit that operated under a series of non-names, reported on by Sy Hersh and then the NY Times (links in my post occasioned by the NYT story March 2006).

    This unit reported directly to Cambone, bypassing the regular chain of command almost completely. They backed everybody off with their mission of “protecting the troops” by supposedly getting intelligence from “high value detainees” (who changed from “Ba’athist dead enders” to “Al Qaeda in Iraq” as the resistance ramped up).

    My question: Are these m*f*s still roaming around Iraq, bringing prisoners to “field outposts in Baghdad, Falluja, Balad, Ramadi and Kirkuk … nestled within the alleys of a city in nondescript buildings with suburban-size yards where helicopters could land to drop off or pick up detainees.”?

  12. lysias says:

    Classified executive orders are not given an Executive Order number (so that their existence could be deduced from the numbers in the list.) Instead, they are given a title like “National Security Directive.” I wonder if Bush’s still-classified Memorandum of Notification to the CIA of Sept. 17, 2001 (which is said to have been the source of the torture policies) counted as the equivalent of an executive order.

  13. tjbs says:

    You don’t know me ,so let me please introduce myself.
    I live in Bucks County Pa about 25 miles north of Philly where we, the country , got going.
    I often drive through Washington Crossing on my way to Yardley which is about across the river from where the German mercenaries were boarded. As paid soldiers they sure were whooping it up that Christmas . Goose, beer, warmth and I’m sure a gift exchange.

    On the other side of the river some enemy combatants in tents and some with rags instead of shoes started a 15 to 20 mile hike in freezing weather. O yea they sure got soaked crossing the Delaware at the start of their March. And it wasn’t like their military hardware was in the courtyard like the other guys. Some guys did it for us.
    And I’m sure Mr. Washington could have tortured and randomly murdered a few after they completely kicked ass. Instead he showed mercy.
    I bet they enjoyed the left over Goose and wine on that Christmas night so long ago. Have any of these creeps stopped their money chase to walk that walk?

    And another thing about me my Great Grand-pop was an artist and a worldwide traveler that did “an Arab with a gun”painting and the only known portrait of John Brown ,which is in the Newark museum. So him and John knocked back a couple for the two or three weeks it took to do a sitting and being of like minds I think some rebel got into Grand-pop then down to me.

    See why I’m kinda pissed.

  14. cinnamonape says:

    Lt Col Kleinman referred to the DoD IG report’s statement that “friction was developing” as an understatement and said that he felt his life was being threatened at the SMU TF. 1437 He recalled one instance (after he stopped what he believed to be in violation ofthe Geneva Conventions) in which an SMU TF member told him, while sharpening a knife, to “sleep lightly,” noting that they did not “coddl[e] terrorists” at the SMU TF.

    So were these same teams deploted at that Northern Iraqi unit where the interrogator “committed suicide” after being smacked down by her superior and told that she was letting her “personal feelings” interfere with her duties? I wonder if they pulled out that Presidential Directive and told her…”Go ahead and complain…se where that gets your a**.”

    • Nell says:

      No, Spec. Alyssa Peterson was with the 101st Airborne in Tal Afar in far western Iraq.

      My impression has been that the ‘Task Force’ unit(s) had very few if any women members, but given the secrecy in which they’re cloaked, quien sabe?

  15. earlofhuntingdon says:

    Interesting application of the pixie dust motif.

    I wonder why anyone committing what were generally regarded as serial, serious felonies (each application of torture, etc., would be a separate, felonious act) would feel adequately protected from liability without having something concrete in writing that put senior administration officials on the hook for what they were ordering.

    A note from mom Cheney or Addington saying these things were OK would not suffice. A conversation via Cheney or Addington that the president approved these things, but implying that he wanted political deniability for having done so, wouldn’t suffice either. That process would leave not one person or a small ops team expendable, but an entire torture apparatus. An unwritten “change” to an EO would hardly suffice either, for the same reason. Everyone would remain vulnerable.

    The SMU TF’s legal officer also seems personally on the hook, too. Not for having given legal advice, but for a Nuremberg Justice Cases kind of command decision.

    Silence does not mean consent. Law school 101. It was hardly reasonable to conclude that a unit commander approved of a plan that s/he specifically and over many months refused to authorize in writing. Absent more direct, explicit involvement from the unit commander, indicating de facto approval, the only reasonable conclusion was that the commander had extraordinary reservations about the plan s/he was asked to approve and had refused to approve it. Meaning that “normal”, not extraordinary rules applied.

    That “order” from the unit’s legal adviser would not be a legal opinion. It would be his or her direct involvement in the chain of command by having issued the order her or himself.

    If what s/he purported to authorize was illegal, inhumane treatment or torture, it’s on them, not the commander for whom they claimed to speak. They’d better lawyer up and dig out their contemporaneous records showing why they thought the unit commander’s actions – other than his or her repeated, explicit refusal to authorize the plan in writing – amounted to de facto authorization of the plan.

    • Rayne says:

      It would make it easier for some people to come forward, though, if we could produce adequate documentation that they thought they’d been roped into illegal activities; cinnamonape (38) makes a strong case for the kinds of conditions which could compromise interrogators/guards.

      I can’t help but wonder what role PTSD also played in this situation; were some people more prone to being pressured into illegal activities because they were already frayed and volatile. Might even explain to some extent why PTSD was not given adequate treatment across the military — it was a feature, not a bug, as far as leadership was concerned.

      lysias (36) — any chance you can point to a declassified example? we could be looking at something under our noses and simply not seeing it.

      We’re also getting quite close to developing a solid case, and more documentation will help. My rule of thumb with my team as a managing editor was to have the thing itself from an unimpeachable source (like documents from a government archive) and/or a minimum of two corroborating sources. Do we have anything like that on classified executive orders?

      • Aeon says:

        Do we have anything like that on classified executive orders?

        It turns out that my WAG @17 about this possibly being a National Security Presidential Directive may be a fruitful path.

        National Security Presidential Directives are Executive Orders, and here is a most useful index of the ones issued by Bush. Most are still classified, and some are identifiable only by the gap in the number sequence.

  16. JasonLeopold says:

    Hey there: I don’t know if you guys make anything of this but Gonzales went out of his way to say that the FBI interrogator who sent the email was “mistaken” and there was no such executive order. The denial by Gonzales, for me, just raises more suspicion. But I wonder if in fact an executive order did exist whether it was signed under the same circumstances in which Tenet had asked the White House in 2003 and 2004 for memos authorizing waterboarding and other torturous techniques. I know this is specifically the military but maybe someone feared the same legal ramifications and wanted a presidential directive?

    Also, this may be straying from the topic but in March 2005 Maj. Gen. Mike Dunlavey, who was in charge of interrogations at Gitmo, told a military investigator that when it came to interrogations he was told he “would answer to SECDEF (Secretary of Defense) and [U.S. Southern Command]. The directions changed and I got my marching orders from the President of the United States. I was told by the SECDEF that he wanted me back in Washington, DC every week to brief him….The mission was to get intelligence to prevent another 9/11.”

    There was never any explanation as to what he meant by his statement to the best of my knowledge but it’s curious nonetheless in light of what we now know.

    • Nell says:

      Can’t take the time right now to find a cite or link, but Karen Greenberg has written about the abnormal double chain of command at GTMO in her book The Least Worst Place, and in some of the excerpts/articles based on it.

      • Rayne says:

        It would be the past repeating itself, a parallel but shadow chain of command.

        It happened with the Phoenix Program during Vietnam, and Cheney tried it before under Poppy with Operation Scorpion, running a secret op within DoD.

        These assholes from Iran/Contra have simply refined the same games they’ve been playing all along their entire lives — this time, though, instead of being the minority Team B, they had all the power and authority of a majority Team A. No minority report was permitted or suffered.

  17. lysias says:

    I remember being skeptical when Wayne Madsen reported that, when Cheney visited Poland for the 60th anniversary of the liberation of Auschwitz, he made a side trip to a secret CIA prison in Poland. Then, a year or so later, it came out that there really was a CIA secret prison at that location. And now we learn that that is where Khalid Sheikh Mohammed was waterboarded.

    • pmorlan says:

      I hear you. Wayne Madsen may very well be right that Cheney was involved (I think so too) but until I see actual evidence I’m not willing to automatically believe that he is right on this one.

  18. Mary says:

    One part of the context on all of this is that Taguba has said over and over that he was shut down on his efforts to include an investigation of Military Intelligence and contractors together with the Military Police investigation that they did let him conduct. He says all the worst things he was hearing were MI, but he wasn’t allowed to go there and he has called over and over for an investigation/report on MI.

    But he’s the kind of guy Obama shuns. Someone who did do the right thing. It’s hard to keep the group hug up with the people who didn’t do the right thing unless you are willing to spit on the guys who sacrificed to do what was right.

  19. Rayne says:

    Before the comments timer runs out on this post and it drops altogether off EW’s page, I should probably bring up the Bush document which may best serve as an executive order, without actually being one.

    On February 7, 2002, Bush issued a memo (PDF) to what for all intents and purposes is the National Security Council. The understandings and decisions memorialized in the memo emanate from his role as C-in-C, based upon DOJ opinion of Jan. 22, 2002, and USAG opinion of Feb. 1, 2002.

    The memo reads like an executive order, yet it is not numbered or recorded as one. Bush says,

    As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

    Note this does not include other entities holding detainees, including CIA or contractors, only the Armed Forces.

    There’s a lot more in the document which might really be the best roadmap to building a case against torturers and those who authorized torture.

    The Bush document was declassified on June 17, 2004, the same day Jack Goldsmith announced his resignation; it appeas to have been faxed to “Legal” that day as well.

    • Rayne says:

      Ah, now that was amusing. I’ve been hopscotching around Jane Mayer’s The Dark Side for a month, rather than sitting down and reading it; I finally sat down to do so tonight, and voila, there’s the same conclusion about the February 7, 2002 memo from Bush (p. 124-125). In her second reference to the document, Mayer refers to it as an order as well.

      The odd part about the memo is the opening line, a throw-away, but at the same time acknowledging the joined of the roots of the aspens:

      “Our recent extensive discussions regarding the status of al Qaeda and Taliban detainees…”

      How nice for Addington he is not listed as a recipient of the memo.

      Speaking of which, I think we need to FOIA the SOA manuals — or see if there are any in the Archives. I’m not done with them, but I suspect the content I’m working on are not the real deal. You know, nifty tricks with kerning and the like.

  20. Jeff Kaye says:

    A late addition to this tremendous discussion. But when I looked at the DoJ OIG citation of the e-mail in question (the one wherein Gonzales said the agent was “mistaken”), I noticed that the report followed the request re the definition of abuse up the FBI chain of command to the General Council, Valerie Caproni. No one disputed, nor did the Inspector General report itself, that there was a Presidential EO as described. Instead, when asked, Caproni shot back:

    Does it answer his question to say that conduct that is known to be authorized need not be reported?

    While not definitive in any sense, does this not give inferential evidence for the existence of the EO as cited (and cited in some detail, I would note) by the agent?

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