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We Can’t Afford Another “Complicated and Quirky” Presidency

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You’ve no doubt heard about the BoGlo piece that describes 9 different legal documents on which Mitt Romney was listed as CEO of Bain after the time–in 1999–when he now claims to have left the company.

Romney has said he left Bain in 1999 to lead the winter Olympics in Salt Lake City, ending his role in the company. But public Securities and Exchange Commission documents filed later by Bain Capital state he remained the firm’s “sole stockholder, chairman of the board, chief executive officer, and president.”

[snip]

Romney did not finalize a severance agreement with Bain until 2002, a 10-year deal with undisclosed terms that was retroactive to 1999. It expired in 2009.

[snip]

The Globe found nine SEC filings submitted by four different business entities after February 1999 that describe Romney as Bain Capital’s boss; some show him with managerial control over five Bain Capital entities that were formed in January 2002, according to records in Delaware, where they were incorporated.

I’m envisioning Mitt Romney, in 2017, claiming the treaty he signed with China in 2014 doesn’t really count because he wasn’t really acting as President when he signed it, in spite of his legal status as President.

But I’m most interested in the scant response the Mitt campaign gave.

A Romney campaign official, who requested anonymity to discuss the SEC filings, acknowledged that they “do not square with common sense.” But SEC regulations are complicated and quirky, the official argued, and Romney’s signature on some documents after his exit does not indicate active involvement in the firm.

“Complicated and quirky” says a guy (or gal) now spending his time trying to get Mitt elected to an even more complicated and quirky office, the Presidency.

Frankly, though, there’s precedent for a President claiming “complicated and quirky” absolves him of responsibility for things that occurred under his presidency. After all, while Bush signed the paperwork in the first 6 years of his presidency, it wasn’t until he fired Rummy that Bush actually took over responsibility for the big decisions from Dick Cheney.

And I can’t help but harp on the “complicated and quirky” document–the “Gloves Come Off” Memorandum of Notification, effectively written by now Romney advisor Cofer Black–that has undermined the accountability Presidency more generally. Effectively, that MON pre-authorized the CIA (at least) to do whatever they wanted within certain general areas of organization. It served as Presidential authorization, but insulated the President from any provable involvement in torture and assassination and partnering with lethal regimes. When proof that the President had authorized all this torture threatened to come out via legal means, the current President went to the mat to prevent that from happening.

All the rest–the debates about what Congress authorized the day after this complicated and quirky document, the OLC memos, the repeated investigations that always end up in immunity for all (or almost all)–are just the legal facade that hides the fact that in fact even our Constitution has become “complicated and quirky.” And while Obama at least admits his involvement in these issues–while still hiding them from legal liability–he has chosen to keep the structure in place and has relied on the plausible deniability it gives.

The thing is, as damning as this revelation may prove to be for Mitt, it is in fact quite unsurprising that a man can run for President on a resumé for which–his advisors say, behind the veil of anonymity–he can simultaneously claim credit but no responsibility.

That’s the way this country increasingly works. Even–perhaps especially–the Presidency.

DIA Failed to Protect Jose Padilla’s Welfare

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On June 11, SCOTUS denied cert in Jose Padilla’s suit against Donald Rumsfeld, former DIA Director Lowell Jacoby, and others at DOD for his denial of habeas corpus and abusive detention. On June 28, DOD responded to a FOIA Jeff Kaye submitted on September 8, 2010.

There’s a lot in the IG Report Jeff received in response–on whether detainees at Gitmo or other non-SOCOM facilities were administered drugs as part of interrogation (the report concludes they were not)–of import that Jeff and Jason Leopold report on here.

In this post, though, I want to look at why DOD may have held off on responding to Jeff’s FOIA until after SCOTUS rejected Padilla’s suit.

As Jeff and Jason report, one of the more inflammatory things revealed in the unredacted parts of the report is that when “they” gave Padilla a flu shot on December 5, 2002 (the report doesn’t say who administered the shot), he asked (following up on earlier comments made by an interrogator) whether they had given him truth serum.

What happened next is redacted–one of just about 5 redacted paragraphs in the entire report. DOD cited exemptions 1 (properly classified), 3 (protected by statute, including any function of the DIA), 6 (personal privacy) and 7c (law enforcement personal privacy) in withholding this information.

The following paragraph reads,

(U/FOUO) We concluded from the interrogation recordings and interviews with the interrogator and brig personnel present on December 5, 2002, that [redacted–Padilla] was not administered a mind-altering drug during his confinement at the U.S. Naval Consolidated Brig, Charleston, South Carolina. We further concluded that the [3-letter redaction] failed to follow legal review procedures established by U.S. Joint Forces Command to ensure that [redacted–Jose Padilla’s] welfare was protected in accordance with guidance issued by the President. [my emphasis]

Then, the subsequent two paragraphs–which provide “Client Comment” and DOD IG’s response–are redacted.

We can be almost certain that DIA (headed at the time of Padilla’s detention by Jacoby) was the redacted rebuked entity because their response to this report is the only other section of the report that is substantially redacted and no other respondants to the report had any complaints about it, meaning the redacted response in the Padilla section must be a discussion of DIA’s response. The unredacted section of their response, however, makes it clear their own IG investigated the problem (albeit at the same time as DOD IG was doing so).

The DIA Inspector General (IG) investigated the information gap cited in Appendix II. The DIA IG report was provided on 12 August 2009. [my emphasis]

Still, we don’t know what DIA did that drew a rebuke from DOD’s Inspector General. It may be no more than misleading Padilla into believing he had gotten a truth serum, without prior approval for doing so by lawyers. (The paragraphs in question are only classified Secret, so they can’t be that significant.)

Or, it may be that the conclusion served to protect the President and Rummy.

Nevertheless, it is fairly clear that DOD’s IG found that DIA didn’t do what they needed to do to protect Padilla’s welfare. And it sure looks like DOD sat on that information until SCOTUS ensured that Padilla would never have legal recourse for the abuse done to him.

Links, 4/22/12

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I was never able to keep up with my goal of doing daily link posts last year. That said, there’s so much out today that I want to at least note that I can’t keep up with my own posting unless I dump all these here.

Steven Aftergood notes that your elected representatives are clarmoring for more leak prosecutions.

The EU just caved to US demands for EU passenger data. With Israel dictating no fly lists to Europe and Julian Assange’s lawyer being placed an an “inhibited” list with no explanation, this probably will lead to the US unilaterally dictating who can fly where in this world.

The Guardian asked pastor Terry Jones whether he bears any responsibility for the deaths he may cause if he insists on conducting another Quran burning. The Guardian doesn’t appear to have asked DOD, which is trying to convince Jones not to conduct the burning, why it doesn’t first take responsibility for ending the anti-Muslim abuses and the Quran burning committed by some troops.

In addition to the cooperation with Libya in exposing refugees in the UK, the documents liberated in Libya last year also describe how MI6 collaborated with Moammar Qaddafi to set up a radical mosque in some Western European country to use as bait for Islamic extremists.

Obama just issued an Executive Order basically saying that Syria and Iran should not be able to use tech to crack down on the opposition in the same we the US does.

Apparently we don’t have enough spies so now DOD is rolling out a new (actually, newly renamed) Clandestine Service.

Micah Zenko addresses the stupidity behind refusing to acknowledged our Third War–the drone one–publicly.

As Jack Goldsmith notes in Charlie Savage’s piece describing Obama’s increasing reliance on executive orders to do the work of business, “This is what Presidents do.” Congress has, with its capitulation to big money and greed, basically turned itself into a rump institution doing no more than channeling money into DC’s main industry. I think Obama, with his congressional majority in 2008, might have been able to begin to reverse that if he had actually used his majority rather than pissing it away in a bid for bipartisan crap rather than effective legislation. But he didn’t.

Evgeny Morozov explains why Anonymous’ structure and disparate goals has led to increased surveillance rather than less. I think his analysis suffers from the classic chicken-and-egg fallacy, and fails to account for the degree to which these choices are probably being dictated by FBI-directed double agents. But it worthwhile analysis.

File this news–that half of Iran’s super-tanker capacity is sitting anchored in the gulf with no place to go–in the “whatever could go wrong?” file. If we’re lucky it will involve nothing more than pirates and not fully-laden tankers sunk and draining into the gulf.

Jose Padilla’s mom has appealed her suit against Donald Rumsfeld for torture to SCOTUS. This case is the best set of facts–but the least empathetic plaintiff–of several suits trying to hold the government accountable for torturing American citizens.

“Quiet Lobbying Campaign” For SOCOM: Hollywood Movie, President’s Campaign Slogan

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[youtube]http://www.youtube.com/watch?v=ZnlPgo9TaGo[/youtube]

Coming so quickly on the heels of Lt. Col. Daniel Davis documenting the depraved level of lying that characterizes the primary mode of action for many at the top levels in our military, it’s galling that Admiral William McRaven would take to the front page of today’s New York Times to advance his efforts–hilariously and tragically labeled by the Times as a “quiet lobbying campaign”–to gain an even freer hand for the Special Operations Command, which he heads.

Never forget that it was from within Special Operations that Stanley McChrystal shielded Camp NAMA, where torture occurred, from the International Committee of the Red Cross. Never forget that it was Special Operations who instituted the dark side of the COIN (counterinsurgency) campaign in Afghanistan that relied on poorly targeted night raids that imprisoned and tortured many innocent civilians. Never forget that Dick Cheney and Donald Rumsfeld bypassed the normal chain of command to work directly with Stanley McChrystal when he headed JSOC, sending McChrystal on missions not reported to area command. This relationship with Cheney and Rumsfeld had a strong effect on JSOC, as noted by Jeremy Scahill:

Wilkerson said that almost immediately after assuming his role at the State Department under Colin Powell, he saw JSOC being politicized and developing a close relationship with the executive branch.

Among the military commanders being bypassed by Cheney and Rumsfeld was the head of SOCOM, the position that McRaven (who was McChyrstal’s deputy when most of McChrystal’s war crimes were carried out) now occupies, but this same attitude of teaming with the executive branch to bypass the regular defense chain of command has survived intact.

Today’s article in the Times opens this way:

As the United States turns increasingly to Special Operations forces to confront developing threats scattered around the world, the nation’s top Special Operations officer, a member of the Navy Seals who oversaw the raid that killed Osama bin Laden, is seeking new authority to move his forces faster and outside of normal Pentagon deployment channels.

The officer, Adm. William H. McRaven, who leads the Special Operations Command, is pushing for a larger role for his elite units who have traditionally operated in the dark corners of American foreign policy. The plan would give him more autonomy to position his forces and their war-fighting equipment where intelligence and global events indicate they are most needed.

At least the Times does pay a short homage to the quaint, old way of the chain of command as it currently exists:

While President Obama and his Pentagon’s leadership have increasingly made Special Operations forces their military tool of choice, similar plans in the past have foundered because of opposition from regional commanders and the State Department. Read more →

4th Circuit: Enemy Combatants Can’t Complain about Having Been Made Enemy Combatants

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As you’ve probably heard, the 4th Circuit rejected Jose Padilla’s suit against Donald Rumsfeld on Tuesday. Both Lyle Denniston and Steve Vladeck have good summaries of the decision, which basically says the courts can’t grant damages for constitutional abuses not otherwise covered by law until such time as Congress sees fit to cover them in law:

The factors counseling hesitation are many. We have canvassed them in some detail, but only to make a limited point: not that such litigation is categorically forbidden by the Constitution, but that courts should not proceed down this highly problematic road in the absence of affirmative action by Congress. If Congress were to create a damages remedy here, we would trust that the legislative process gave due consideration to the broader policy implications that we as judges are neither authorized nor well-positioned to balance on our own.

But if that’s not circular enough reasoning for you, here’s a more disturbing one–one which may have troubling implications given the recent codification of indefinite detention.

The 4th Circuit Opinion hews closely to the argument the government made in its amicus brief which, as I described last year, itself engaged in circular logic. It effectively invoked national security to say that the court couldn’t consider Padilla’s deprivation of due process. And then having bracketed off the lack of due process that got him put in the brig with no access to lawyers, they effectively punted on the torture complaint.

To explain their failure to treat torture in their filing, they say 1) that the other defendants are addressing it and 2) they don’t have to deal with it anyway because the President has said the US does not engage in torture (which is precisely what Bush said when torture was official policy):

In this brief, we do not address the details of Padilla’s specific treatment allegations, which have already been thoroughly briefed by the individual defendants.1

1 Notwithstanding the nature of Padilla’s allegations, this case does not require the court to consider the definition of torture. Torture is flatly illegal and the government has repudiated it in the strongest terms. Federal law makes it a criminal offense to engage in torture, to attempt to commit torture, or to conspire to commit torture outside the United States. See 18 U.S.C. § 2340A. Moreover, consistent with treaty obligations, the President has stated unequivocally that the United States does not engage in torture, see May 21, 2009 Remarks by the President on National Security.

Note that bit, though, where the government acknowledges that torture is illegal?

That’s important, because they base their objections to the Bivens complaint in part on the possibility that a court could review Padilla’s treatment–treatment he alleges amounts to torture, which the government accepts is illegal–and determine whether it was in fact torture and therefore illegal.

Padilla also seeks damages in regard to the lawfulness of his treatment while in military detention. Thus, a court would have to inquire into, and rule on the lawfulness of, the conditions of Padilla’s military confinement and the interrogation techniques employed against him. Congress has not provided any such cause of action, and, as the district court concluded (JA 1522), a court should not create a remedy in these circumstances given the national security and war powers implications.

And they’re arguing Congress–which passed laws making torture illegal (to say nothing of the Constitution prohibiting cruel and unusual punishment)–didn’t provide for a cause of action.

That is, Padilla can’t sue both because Congress has made it illegal but not provided a cause of action here and … national security!

Effectively, then, the government shielded torture by shielding the initial lack of due process from all oversight under national security and therefore depriving Padilla of recourse once he lost his access to due process.

In my opinion, the 4th Circuit brief actually magnifies this problem. Check out the language in these two passages:

Special factors do counsel judicial hesitation in implying
causes of action for enemy combatants held in military detention.

[snip]

With respect to detainees like Padilla, Congress has provided for limited judicial review of military commission decisions, but only by the District of Columbia Circuit Court of Appeals, and only after the full process in military courts has run its course. 10 U.S.C. § 950g. And to the extent that the Supreme Court in Boumediene v. Bush, 553 U.S. 723 (2008), permitted further judicial examination of the detention of enemy combatants, it did so using the limited tool of the constitutionally guaranteed writ of habeas corpus—not an implied and open-ended civil damages
action. See id. at 797. [my emphasis]

That is, the 4th Circuit did not consider whether American citizens with no other recourse could sue under Bivens for having been turned into enemy combatants precisely to deprive them of their rights. Rather, it considered whether “enemy combatants held in military detention” and “detainees like Padilla” had access to Bivens. It thereby ignored the most fundamental part of the process, where the Bush Administration removed Padilla, a citizen, from civilian detention with access to due process, and made him an enemy combatant.

The 4th Circuit denies Padilla the ability to sue for being deprived of his constitutional right to due process by considering him not as a citizen deprived of his constitutional rights, but as a detainee whose constitutional rights had already been suspended.

Which makes the final passages of this opinion all the more nauseating. Having premised their entire decision not on Padilla’s rights as a citizen, but on his rights as an enemy combatant (even seemingly referring to him as a detainee, in the present tense), they then argue that there would be no incremental harm for Padilla between being a citizen convicted of a felony through due process and being an enemy combatant.

It is hard to imagine what “incremental” harm it does to Padilla’s reputation to add the label of “enemy combatant” to the fact of his convictions and the conduct that led to them.

This entire suit is about the magical power that term “enemy combatant” has to put an American citizen beyond the realm of due process (and, in Padilla’s case, to be tortured precisely because he has lost due process). That is precisely the logic the judges use throughout this opinion. And yet they simply can’t imagine what the difference between being a citizen–even one convicted of multiple felonies–and being an enemy combatant is?

And then there are the larger implications of this. In a world where indefinite detention is now codified into law, in a world where Padilla has always delimited the possible applications of claimed authority to hold American citizens captured in this country as enemy combatants, the circuit that covers CIA’s and JSOC’s actions–not to mention the two military brigs, Charleston and Quantico, that would be the most likely places to detain American citizens–just accorded that term, “enemy combatant,” magical status. Once applied to an American citizen, the 4th Circuit says, the Executive Branch is absolved of any infringements of a citizen’s constitutional rights, even the infringements of constitutional rights used to get him into that magic status in the first place.

Intelligence Aide Flynn re McChrystal: “Everyone Has a Dark Side”

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[youtube]http://www.youtube.com/watch?v=WX0MPcN08Zc[/youtube]

As Marcy pointed out yesterday, Rolling Stone has published an excerpt from Michael Hastings’ new book The Operators. As she predicted, I am unable to refrain from commenting on it. The polarizing figure of Stanley McChrystal has always intrigued me. The way that McChrystal’s “Pope” persona was embraced by a large portion of the press never made sense to me, given how deeply McChrystal was involved as the primary agent behind the “success” of David Petraeus’ brutal night raids and massive detention program in Iraq. For those paying attention, it was known as early as 2006 that McChrystal’s JSOC was at the heart of the abuses at Camp Nama and even that he was responsible for preventing the ICRC from visiting the camp.

In preparing for the short passage from Hastings that I want to highlight, it is important to keep in mind that McChrystal’s mode of operation when heading JSOC was to bypass both the normal chain of command and Congressional oversight by working directly for Dick Cheney and Donald Rumsfeld. From Jeremy Scahill:

While JSOC has long played a central role in US counterterrorism and covert operations, military and civilian officials who worked at the Defense and State Departments during the Bush administration described in interviews with The Nation an extremely cozy relationship that developed between the executive branch (primarily through Vice President Dick Cheney and Defense Secretary Donald Rumsfeld) and JSOC. During the Bush era, Special Forces turned into a virtual stand-alone operation that acted outside the military chain of command and in direct coordination with the White House. Throughout the Bush years, it was largely General McChrystal who ran JSOC.

Next, we need to consider the figure of Michael Flynn, whom Hastings quotes. Flynn served under McChrystal in a number of positions related to intelligence gathering. From his biography:

Major General Michael T. Flynn assumed duties as the Chief, CJ2, International Security Assistance Force, with the additional appointment as the CJ2, US Forces – Afghanistan on 15 June 2009. Prior to serving in this capacity, he served as the Director of Intelligence, Joint Staff from 11 July 2008 to 14 June 2009. He also served as the Director of Intelligence, United States Central Command from June 2007 to July 2008 and the Director of Intelligence for Joint Special Operations Command from July 2004 to June 2007, with service in Operations ENDURING FREEDOM (OEF) and IRAQI FREEDOM (OIF). Major General Flynn commanded the 111th Military Intelligence Brigade from June 2002 to June 2004. Major General Flynn served as the Assistant Chief of Staff, G2, XVIII Airborne Corps at Fort Bragg, North Carolina from June 2001 and the Director of Intelligence, Joint Task Force 180 in Afghanistan until July, 2002.

Both the New York Times and Esquire articles linked above on torture at Camp Nama discuss events primarily from early 2004. From Flynn’s biography, that coincides with his duty as heading the 111th Military Intelligence Brigade and being promoted to Director of Intelligence for all of JSOC. Given those roles, it seems impossible that Flynn could have been unaware of what took place at Camp Nama, as he would have been assessing the information gleaned from interrogations there at the very least. It’s likely he spent a lot of time there. From the Esquire article: Read more →

Cheney Tells the Seventh Circuit It Would Erode Military Discipline To Let Courts Second Guess Cheney’s Torture Decisions

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Remember that letter a bunch of former Directors of Central Intelligence wrote begging Obama to kill an investigation into George W Bush-approved CIA torture?

Poppy, the father of the President who authorized that torture, had the good grace not to sign onto the letter.

These things tend to look like stunts when someone with that kind of personal conflict signs on.

Which is why this amicus brief from all former Secretaries of Defense, submitted in the Vance v. Rumsfeld suit suing Donald Rumsfeld for torture inflicted on two contractors in Iraq, is so farcical. (h/t Lawfare) Right there between “Frank C. Carlucci III, Secretary of Defense from 1987 to 1989” and “William S. Cohen, Secretary of Defense from 1997 to 2001” comes “Richard B. Cheney, Vice President of the United States from 2001 to 2009, and Secretary of Defense from 1989 to 1993.”

Otherwise known as the architect of the torture program for which Dick’s first important boss, Rummy, is now being sued.

As you might expect from a brief submitted by David Rivkin, the argument in the brief itself isn’t any more credible. It does two things. First, it argues that if Vance were allowed to sue under Bivens for being tortured by his own government, then it would break down military discipline that requires–and affords Vance as recourse, they claim–members of the military to report detainee abuse up the chain of command. We saw how well that worked for Joe Darby and a bunch of Gitmo whistleblowers. And of course these former Secretaries of Defense are arguing that military discipline will guarantee that the entire chain of command would be able to hold its civilian leadership accountable for illegal orders to torture civilians. Never mind that those former Secretaries pretty much admit there is little means under the UMCJ to actually punish civilian leaders (the whole brief ignores that some of the torturers were also civilians), as distinct from the members of the military whose punishment the brief lays out in some detail–for breaking the law.

With respect to civilian officials and employees, the process of investigation would have vindicated Plaintiffs’ rights by, at a minimum, providing “a forum where the allegedly unconstitutional conduct would come to light,” Bagola v. Kindt, 131 F.3d 632, 643 (7th Cir. 1997) (citing Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chilicky, 487 U.S. 412 (1988)), and review of Plaintiffs’ constitutional claims, with the possibility of review by the U.S. Supreme Court, 10 U.S.C. § 867A(a).

Military discipline that must be preserved would guarantee that the Lynndie Englands were held accountable. And that, for these former Secretaries of Defense, is enough, I guess.

Of course, all this only works because of the brief’s other strategy: to simultaneously suggest that this was not torture (that is, something clearly prohibited by law), calling it consistently “mistreatment.” Even while ignoring that Ashcroft v. al-Kidd requires the showing of obviously prohibited behavior, like torture.

The panel majority’s narrow framing of its holding—that it extends only to conduct of the nature alleged by Plaintiffs, Slip op. 58-59—is yet another attempt to craft “[a] test for liability that depends on the extent to which particular suits would call into question military discipline and decisionmaking.” Stanley, 483 U.S. at 682. But this “would itself require judicial inquiry into, and hence intrusion upon, military matters,” and “the mere process of arriving at correct conclusions would disrupt the military regime.” Id. at 683-84. Moreover, this limitation is arbitrary; in no case has Bivens’ availability turned on the gravity of the alleged deprivation.

A final consequence is the likelihood that, fearing personal liability, those officials charged with ensuring the Nation’s security “would be deterred from full use of their legal authority.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2087 (2011) (Kennedy, J., concurring).

It’s not that Rummy (and Cheney, though Cheney and his colleagues don’t say this) should have and in fact did know that torture was illegal, this brief pretends (as al-Kidd mistakenly, IMO, pretends that Ashcroft had no way of knowing what material witness detention allowed). Rather, you simply can’t question military matters, at all, never ever, even in cases of gross violations of law, because that’s a slippery slope that will erode military discipline.

The military discipline that ensures that Secretaries of Defense–and Vice Presidents–will never held accountable for their crimes.

Donald Rumsfeld’s Torture Defense and Appendix M

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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 http://www.nytimes.com/2005/12/14/politics/ 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: www.loc.gov/rr/frd/Military_Law/pdf/intel_interrrogation_sept-1992.pdf (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.

Another Day, Another Person Suing Donald Rumsfeld for Torture

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The 7th Circuit has just issued a decision in yet another case where a US citizen (actually, two of them–Donald Vance and Nathan Ertel) are suing Donald Rumsfeld for the torture they suffered at the hands of the military. (h/t scribe) The opinion allows the Bivens lawsuit to go forward.

Vance and Ertel are both American citizens who reported the contractor they worked for in Iraq, Shield Group Security, to the FBI for making payments to Iraqi sheikhs. Following the discovery of a cache of guns owned by Shield, Vance and Ertel were ultimately put in Camp Cropper and tortured. As the opinion describes,

After the plaintiffs were taken to Camp Cropper, they experienced a nightmarish scene in which they were detained incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment — Vance for three months and Ertel for six weeks. ¶¶ 2, 20-21, 146-76, 212. They allege that all of the abuse they endured in those weeks was inflicted by Americans, some military officials and some civilian officials. ¶ 21. They allege that the torture they experienced was of the kind “supposedly reserved for terrorists and so-called enemy combatants.” ¶ 2. If the plaintiffs’ allegations are true, two young American civilians were trying to do the right thing by becoming whistleblowers to the U.S. government, but found themselves detained in prison and tortured by their own government, without notice to their families and with no sign of when the harsh physical and psychological abuse would end. ¶¶ 1-4, 19, 21, 52- 54, 161.

[snip]

Vance and Ertel were driven to exhaustion; each had a concrete slab for a bed, but guards would wake them if they were ever caught sleeping. ¶¶ 148, 149. Heavy metal and country music was pumped into their cells at “intolerably-loud volumes,” and they were deprived of mental stimulus. ¶¶ 21, 146, 149. The plaintiffs each had only one shirt and a pair of overalls to wear during their confinement. ¶ 152. They were often deprived of food and water and repeatedly deprived of necessary medical care. ¶¶ 151, 153-55.
Beyond the sleep deprivation and the harsh and isolating conditions of their detention, plaintiffs allege, they were physically threatened, abused, and assaulted by the anonymous U.S. officials working as guards. ¶ 157. They allege, for example, that they experienced “hooding” and were “walled,” i.e., slammed into walls while being led blindfolded with towels placed over their heads to interrogation sessions. ¶¶ 21, 157.

The decision, written by Obama appointee David Hamilton, had little patience for Rummy’s defense. It accused Rummy, first of all, of ignoring the detail alleged in the complaint so as to expand the meaning of Iqbal.

The defendants instead argue that plaintiffs have not alleged more than “vague, cursory, and conclusory references to [their] conditions of confinement, without sufficient factual information from which to evaluate their constitutional claim.” This argument, which is more of a pleading argument to extend Iqbal and Twombly than an argument about qualified immunity, is not persuasive. The defendants argue, for example, that while the plaintiffs allege that their cells were extremely cold, they provide no “factual context, no elaboration, no comparisons.” At this stage of the case, we are satisfied with the description of the cells as “extremely cold.” Cf. Fed. R. Civ. P. 84 and Forms 10-15 (sample complaints that “illustrate the simplicity and brevity that these rules contemplate”).
The defendants also suggest that the plaintiffs did not detail in their Complaint whether they sought and were denied warmer clothing or blankets. Even if it was not necessary, the plaintiffs actually specified the clothing and bedding that was available to each of them — a single jumpsuit and a thin plastic mat. The defendants also argue that plaintiffs did not specify how long they were deprived of sleep. That level of detail is not required at this stage, but a fair reading of this Complaint indicates that the sleep deprivation tactics were a constant for the duration of their detention, as was the physical and psychological abuse by prison officials.

It dismisses the argument–submitted in a amicus brief by the military–that regular military justice offered Vance and Ertel alternative means of justice.

For three reasons, however, we are not persuaded by the argument that a Bivens remedy should be barred because detainees who are being tortured may submit a complaint about their treatment to the very people who are responsible for torturing them. First, if, as plaintiffs allege here, there was a problem stretching to the very top of the chain of command, it would make little sense to limit their recourse to making complaints within that same chain of command.

Second, the opportunity to complain offers no actual remedy to those in plaintiffs’ position other than possibly to put a stop to the ongoing torture and abuse. A system that might impose discipline or criminal prosecution of the individuals responsible for their treatment does not offer the more familiar remedy of damages.

Third, during oral argument, plaintiffs’ counsel asserted that Vance and Ertel in fact did complain about their treatment while detained. At least one of the men had face-to-face conversations with the commander of Camp Cropper, who said there was nothing he could do about their treatment.

And it got really outraged when Rummy tried to claim the war constituted a special factor that should exempt the government from prohibitions on torturing its own citizens.

The defendants are arguing for a truly unprecedented degree of immunity from liability for grave constitutional wrongs committed against U.S. citizens. The defense theory would immunize not only the Secretary of Defense but all personnel who actually carried out orders to torture a civilian U.S. citizen. The theory would immunize every enlisted soldier in the war zone and every officer in between. The defense theory would immunize them from civil liability for deliberate torture and even coldblooded murder of civilian U.S. citizens. The United States courts, and the entire United States government, have never before thought that such immunity is needed for the military to carry out its missions.

[snip]

If we were to accept the defendants’ invitation to recognize the broad and unprecedented immunity they seek, then the judicial branch — which is charged with enforcing constitutional rights — would be leaving our citizens defenseless to serious abuse or worse by another branch of their own government. We recognize that wrongdoers in the military would still be subject to criminal prosecution within the military itself. Relying solely on the military to police its own treatment of civilians, however, would amount to an extraordinary abdication of our government’s checks and balances that preserve Americans’ liberty.

Now, the ruling is significant for a number of reasons. The facts here are very close to the facts in Doe v. Rumsfeld–the DC District case which was just allowed to move forward. In both, US citizens who were civilian employees in Iraq were tortured in Camp Cropper. Both took place after the Detainee Treatment Act. That’s particularly significant, since both cases argue that since Congress didn’t address torture of US civilians under the DTA, it both reinforces the notion there is no other remedy, but also rules out the possibility that Rummy simply couldn’t be expected to know that torturing American citizens was wrong.

The plaintiffs have adequately alleged that Secretary Rumsfeld was responsible for creating policies that governed the treatment of the detainees in Iraq and for not
conforming the treatment of the detainees in Iraq to the Detainee Treatment Act.

In fact, this case goes further, pointing to news reports that after DTA, Rummy rewrote part of the Army Field Manual (Appendix M) to permit torture to continue.

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 this ruling–particularly the language about the immunity that a rejection of the Bivens suit would imply–applies in large part to Jose Padilla’s suit against Rummy for almost the same terms (though Padilla wasn’t even seized in a war zone).

This ruling in the 7th Circuit, with another ruling due at some point in Padilla’s 4th and 9th Circuit suits, as well as the DC District Doe case, all raise the chances that SCOTUS will have to answer the question of whether our government can torture US citizens with impunity.

Sure, Justice Roberts and his pals are likely to try to find some way to thread this needle, if not approve such treatment more generally. But it looks increasingly likely they’re going to have to decide the question one way or another.

Obama DOJ Doubles Down on President’s Ability to Detain US Citizens with No Charges

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Back in February, Obama’s DOJ stopped defending Donald Rumsfeld and others in Jose Padilla’s Bivens suit against them (though we’re still footing the bill for their pricey lawyers). At the time, it seemed DOJ might have concerns about the claims Rummy’s crew wanted to make about the torture Padilla was suing for.

But DOJ just filed an amicus brief in Padilla’s appeal. In it, they basically double down on the claim the President can deprive a citizen already detained in the US of all due process simply by engaging in some specious word games (in this case, by unilaterally labeling someone an enemy combatant).

Critically, the government is dodging the question of what happens in detention; as I’ll show below, rather than addressing that torture, they simply engage in circular logic.

Remember why Padilla is suing: he’s arguing that Rummy’s crowd violated his constitutional rights by seizing him from a civilian jail, designating him an enemy combatant, using that designation to deprive him of due process, and while he was detained on those terms, torturing him. He’s arguing the government violated his constitutional rights both by depriving him of due process and then torturing him. Illegal detention to enable illegal torture. The government wants to pretend they can separate those issues and argue just the basis for detention.

The government argues that allowing Padilla to sue for that treatment would infringe on national security.

Where, as here, the claims principally implicate national security and war powers, courts have recognized that it is not appropriate to create a common-law damage remedy.

Once again, they’re arguing that if the President says he did something–no matter how clearly unconstitutional–for national security reasons, citizens have no recourse against the President or his top aides.

After arguing “national security” as a threshold matter, the government then makes a threefold argument: Padilla should not have access to Bivens because Congress gave him another means of recourse–a habeas corpus petition (that doesn’t address torture, but the government claims UMCJ addresses torture, even though the defendants here are civilians).

Padilla had a congressionally-authorized mechanism for challenging the lawfulness of his detention. In the wartime context presented, the habeas process should preclude the creation of a Bivens remedy.

Then the government argues that since this very court–the Fourth Circuit–okayed Padilla’s detention in 2005, it’s clear Rummy must have qualified immunity because it was reasonable to think military detention of a citizen was cool.

The issue here, for the purposes of qualified immunity, is not whether this Court’s decision was correct, whether the Supreme Court would have agreed had it reviewed the decision, or whether the detention of Padilla was ultimately constitutional or appropriate as a matter of policy. The issue, rather, is whether the conclusion by three Judges of this Court upholding the detention rebuts any claim that the contrary view was clearly established at the time. It does.

The government’s brief makes no mention of the Michael Luttig opinion cited in Padilla’s appeal that suggested the government’s legal treatment of Padilla was all about expediency, not justice, nor does it here mention the torture allegations.

Finally, it says Rummy shouldn’t be held liable for Padilla’s torture because Iqbal requires Padilla show further proof of personal involvement in his treatment.

But ultimately, all that is based on the notion that no one could have known detaining a US citizen with no due process was unconstitutional.

Now, as I said, the government tries to sever the relationship between Padilla’s illegal detention and his treatment while in detention. Given my earlier speculation that the government withdrew from defending Rummy because Padilla is suing, in part, for the death threats he was subjected to in prison–treatment John Yoo found to be (and communicated to Jim Haynes, another defendant in this suit, to be) torture–I find the government’s circular logic to be particularly telling.

To explain their failure to treat torture in their filing, they say 1) that the other defendants are addressing it and 2) they don’t have to deal with it anyway because the President has said the US does not engage in torture (which is precisely what Bush said when torture was official policy):

In this brief, we do not address the details of Padilla’s specific treatment allegations, which have already been thoroughly briefed by the individual defendants.1

1 Notwithstanding the nature of Padilla’s allegations, this case does not require the court to consider the definition of torture. Torture is flatly illegal and the government has repudiated it in the strongest terms. Federal law makes it a criminal offense to engage in torture, to attempt to commit torture, or to conspire to commit torture outside the United States. See 18 U.S.C. § 2340A. Moreover, consistent with treaty obligations, the President has stated unequivocally that the United States does not engage in torture, see May 21, 2009 Remarks by the President on National Security.

Note that bit, though, where the government acknowledges that torture is illegal?

That’s important, because they base their objections to the Bivens complaint in part on the possibility that a court could review Padilla’s treatment–treatment he alleges amounts to torture, which the government accepts is illegal–and determine whether it was in fact torture and therefore illegal.

Padilla also seeks damages in regard to the lawfulness of his treatment while in military detention. Thus, a court would have to inquire into, and rule on the lawfulness of, the conditions of Padilla’s military confinement and the interrogation techniques employed against him. Congress has not provided any such cause of action, and, as the district court concluded (JA 1522), a court should not create a remedy in these circumstances given the national security and war powers implications.

And they’re arguing Congress–which passed laws making torture illegal (to say nothing of the Constitution prohibiting cruel and unusual punishment)–didn’t provide for a cause of action.

All this implicates the government’s discussion of Padilla’s lack of access to lawyers, too. They claim he can’t complain about not having access to the courts because he can’t point to any claim he was prevented from making while deprived of his lawyers and access to law.

Padilla’s access to the courts claim (Br. 36) likewise fails. To properly allege such a claim, one must identify a legal claim that could not be brought because of the actions of the defendants. See Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). Here, the only such claim was Padilla’s habeas action, which he was able to litigate.

This, in spite of the fact that the Appeal notes the limits on his access to lawyers presented specific barriers for him to complain about his treatment.

Padilla was told not to trust his lawyers and warned against revealing his mistreatment.

Now, frankly, I suspect this effort is all part of a strategy the government devised back in February, when they dumped Rummy.

Rummy needs them to make the threshold argument–that this is a national security issue, meaning the courts should butt out.

But the government seems to have clear awareness that Padilla alleges–with some basis in fact–to have been tortured and that it can’t defend against the torture complaint because they know it was torture and know at least some of the named defendants knew it was torture (and note, the judge in Padilla’s criminal case, as well as judges in other cases where the accused was tortured, always say the torture victim can make a Bivens complaint.)

But that’s not stopping them from saying that, by applying an arbitrary label with no review, they should be able to ignore very clear constitutional principles. And if it was okay for the government to use an arbitrary label in the past to completely ignore the Constitution, then it would be okay going forward to do the same.