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Our New Teachers about Rule of Law

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The Gray Lady is dedicating space this week to reflections on Gitmo. In addition to a debate on it (more on that tomorrow), it offered Lakhdar Boumediene and Murat Kurnaz space to tell their stories, albeit in the opinion section.

Both men told of their terrible treatment.

But both also discussed what they learned about American rule of law by being falsely imprisoned for years.

Boumediene describing losing faith in American justice, which not even the knowledge that the case bearing his name is taught in American law schools has yet returned, given the number of men who remain unjustly imprisoned.

The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.

I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal.

[snip]

About 90 prisoners have been cleared for transfer out of Guantánamo. Some of them are from countries like Syria or China — where they would face torture if sent home — or Yemen, which the United States considers unstable. And so they sit as captives, with no end in sight — not because they are dangerous, not because they attacked America, but because the stigma of Guantánamo means they have no place to go, and America will not give a home to even one of them.

I’m told that my Supreme Court case is now read in law schools. Perhaps one day that will give me satisfaction, but so long as Guantánamo stays open and innocent men remain there, my thoughts will be with those left behind in that place of suffering and injustice. [my emphasis]

Kurnaz describes watching Germans, upon his return, teaching Americans about something once renewed in Germany by the Nuremberg trials: the rule of law.

I LEFT Guantánamo Bay much as I had arrived almost five years earlier — shackled hand-to-waist, waist-to-ankles, and ankles to a bolt on the airplane floor. My ears and eyes were goggled, my head hooded, and even though I was the only detainee on the flight this time, I was drugged and guarded by at least 10 soldiers. This time though, my jumpsuit was American denim rather than Guantánamo orange. I later learned that my C-17 military flight from Guantánamo to Ramstein Air Base in my home country, Germany, cost more than $1 million.

When we landed, the American officers unshackled me before they handed me over to a delegation of German officials. The American officer offered to re-shackle my wrists with a fresh, plastic pair. But the commanding German officer strongly refused: “He has committed no crime; here, he is a free man.”

I was not a strong secondary school student in Bremen, but I remember learning that after World War II, the Americans insisted on a trial for war criminals at Nuremberg, and that event helped turn Germany into a democratic country.Strange, I thought, as I stood on the tarmac watching the Germans teach the Americans a basic lesson about the rule of law. [my emphasis]

Gitmo has come to embody many things in this country over the last decade: Bush’s incompetence and criminality, our bigotry and inhumanity, and–as most would like to treat it now–a big political tussle between Obama and Republicans.

But at every turn–from the Bush Administration grasping claiming the piece of land existed outside the rule of law, to the corrupt legal process that created memos authorizing torture there, to Jim Haynes’ insistence that “we can’t have acquittals,” to the DC Circuit’s continued efforts to make sure detainees get no meaningful review of their detention–Gitmo has been about shedding the rule of law. It has been about finding ways for America to defy the law even while maintaining the pretense we still uphold it.

In this country, we have mostly ignored that lesson of Gitmo (not liking what it says about us, I guess). But it’s a lesson our former captives know well.

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.

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.

Daniel Levin’s Last Minute “Combined” Memo

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

02/02/05 12:56PM

From: CTC Lawyer

To John Rizzo [and others, redacted]

cc: [redacted]

Subject: Draft OLC opinion on combined techniques has arrived

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

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

02/02/05 01:26PM

From: John Rizzo

To: CTC Lawyer

cc: [redacted]

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

02/02/05 01:38PM

From: CTC Lawyer

To: John Rizzo

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

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

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

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

Daniel Levin Tells Jim Haynes, Again, Not to Torture

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We’ve long known that in February 2005, then-acting head of OLC Daniel Levin contacted DOD General Counsel to remind him that the March 14, 2003 Yoo memo on torture had been withdrawn. But I, for one, had never seen a copy of that letter. It turns out the government included it with their Appeals brief in the David Passaro case (see pages 99-100).

The memo is important for several reasons.

First, note the date: February 4, 2005. The memo was written on Levin’s last day as acting OLC head, the day Alberto Gonzales was confirmed Attorney General. Particularly given questions about what authority DOD had for detainee interrogations after Jack Goldsmith purportedly withdrew the memo, the fact that Levin saw the need to formally remind Haynes the memo had been withdrawn on his last day is telling. Remember, too that Levin had real concerns about whether Steven Bradbury–who would take over as acting head of OLC the following day and would go on to write a crazy opinion authorizing DOD’s Appendix M the following year–should be appointed OLC head.

Only, it’s not entirely clear Goldsmith ever did withdraw the memo.

Here is the text of the memo:

In December 2003, then-Assistant Attorney General Jack Goldsmith advised you that the March 2003 Memorandum was under review by his Office and should not be relied upon for any purpose. Assistant Attorney General Goldsmith specifically advised, however, that the 24 interrogation techniques approved by the Secretary of Defense for use with al Qaeda and Taliban detainees at Guantanamo Bay Naval Base were authorized for continued use as noted below. I understand that, since that time, the Department of Defense has not relied on the March 2003 Memorandum for any purpose. I also understand that, to the extent that the March 2003 Memorandum was relied on from March 2003 to December 2003, policies based on the substance of that Memorandum have been reviewed and, as appropriate, modified to exclude such reliance. This letter will confirm that this Office has formally withdrawn the March 2003 Memorandum.

The March 2003 Memorandum has been superseded by subsequent legal analyses. The attached Testimony of Patrick F. Philbin before the House Permanent Select Committee on Intelligence, July 14, 2004, reflects a determination by the Department of Justice that the 24 interrogation techniques approved by the Secretary of Defense mentioned above are lawful when used in accordance with the limitations and safeguards specified by the Secretary. This also accurately reflects Assistant Attorney General Goldsmith’s oral advice in December 2003. In addition, as I have previously informed you, this Office has recently issued a revised interpretation of the federal criminal prohibition against torture, codified at 18 USC 2340-2340A, which constitutes the authoritative opinion as to the requirements of that statute. [citation omitted; my emphasis]

Note that Levin makes it clear that Goldsmith did not withdraw the memo in December 2003, he just advised Haynes not to rely on it (we knew this). But Levin also makes no mention of Goldsmith formally withdrawing the memo, as the OPR Report suggests happened, in spring of 2004. And while Levin makes it clear–as he did in his September 2004 memo summarizing the advice OLC had given on torture–that Pat Philbin’s testimony to HPSCI was understood to serve as OLC advice to DOD, Levin’s statement that he was “confirming” that OLC had withdrawn the memo suggests DOD had not yet received such a written notice before then.

DOD’s Empty Vessel for Torture Authorization

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When I asked whether DOD had any authorization for torture after 2004, Jeff Kaye reminded me we just recently saw one new aspect of authorization: an April 2006 Steven Bradbury Opinion authorizing Appendix M of the new version of the Army Field Manual released on September 6, 2006. (As Jeff and Matthew Alexander have shown, Appendix M, which remains in place, basically incorporates a number of techniques amounting to torture right into the AFM.) While the 2006 Bradbury memo doesn’t explain what DOD was doing between 2004 and 2006, the memo basically serves to turn Appendix M into an empty vessel into which DOD can throw anything it wants and have it pre-approved.

Make sure the client never sees the caveats

Let’s start with the structure of the memo: note to whom it is addressed?

Nobody.

Rather, this is a Memorandum for the Files. It serves as a document internal to OLC, rather than a document explaining factual assumptions, legal reasoning, and specific limits to the client. So how does the client know the result of the memo? The first paragraph of this memo explains,

The Department of Defense (“DOD”) has asked us to review for form and legality the revised drafts of the Army Field Manual 2-22.3 (“Human Intelligence Collector Operations”), Appendix M of FM 2-22.3 (“Restricted Interrogations Techniques”), and the Policy Directive regarding DOD’s Detainee Program. By letter sent today to the General Counsel of DOD, we advised that these documents are consistent with the requirements of law, in particular with the requirements of the Detainee Treatment Act of 2005 [citation removed]. This memorandum explains that conclusion.

In other words, Bradbury did tell Jim Haynes the result of his review: that the Appendix passed legal muster. But it appears that Bradbury did not send this memo (the memo was finalized after the letter had already been sent). Indeed, Bradbury suggests that he did little more than send a letter saying, “The new Army Field Manual, Appendix M, and the associated Directive are legal under the Detainee Treatment Act.”

Love, Stevie, kthxby.

Now, Bradbury does put limits on his judgment that Appendix M was legal. He spends what appears to be six paragraphs describing the techniques he says were part of Appendix M. Those paragraphs place limits on the techniques (for example, they prohibit an interrogator from leading a detainee to believe the interrogator was a member of the Red Cross). He references restrictive language in specific paragraphs of the AFM itself. He includes assumptions about whom DOD would use these techniques with.

But if DOD never saw this memo–and there’s no indication they did–then his approval would be utterly divorced from any of the restrictions he had placed on that approval.

Approve a document and then make changes to it

Speaking of all those references to specific paragraphs of Appendix M, note that Bradbury wrote this memo on April 13, 2006. Appendix M was not finalized and released until September 6, 2006. And the contents of Appendix M changed significantly between the time Bradbury wrote his approval letter and the time the Appendix was put into effect five months latter. (See this article from Jeff for a review of the debates in the interim period.) Read more →

Did DOD Have ANY Authorization for Torture after 2004?

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

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

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

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

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

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

So what happened after that point?

The Daniel Levin Memo

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

The Waterboarding Smoking Gun, Again

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Since Mark Benjamin has decided to claim–some 300-plus days after I did the first of many posts focusing on the details of waterboarding (to say nothing of posts drational did looking at these descriptions medically)–that, “the agency’s “enhanced interrogation program” haven’t been mined for waterboarding details until now,” I thought I’d make another point about the significance of those details.

As Mark points out and I’ve been pointing out for 11 months, the torturers did far more during waterboarding than what members of the military underwent in SERE training. They dumped large amounts of water onto detainees, and made sure detainees inhaled water. This is far worse than either the Bybee Two Memo or SERE training describes.

Which is why it is so important that, six days before Yoo finalized the Bybee Two memo describing a relatively controlled waterboarding process, Jim Haynes went out of his way to get JPRA to send CIA a description of waterboarding that also didn’t resemble waterboarding as it was done in SERE training (Haynes appears to have given orders eliciting that description in a face-to-face meeting).

As the SASC reported, DOD General Counsel Jim Haynes got JPRA, the entity that administers SERE training, to put together two packets of information on July 25 and 26, ostensibly about SERE training, though JPRA personnel realized he wanted to use it to reverse-engineer the techniques. As we now know, those were crucial days of the Bybee Memo drafting process, when Yoo was looking for more data before he could approve waterboarding, and at about the time when CIA decided it wanted written approval of the torture techniques. But the description JPRA sent Haynes (and CIA)–a description that the OPR Report makes clear OLC received–didn’t describe waterboarding as the Navy used it. Rather, it described waterboarding as it would ultimately be practiced by the CIA.

JPRA’s description of the waterboarding technique provided in that first attachment was inconsistent in key respects from the U.S. Navy SERE school’s description of waterboarding. According to the Navy SERE school’s operating instructions, for example, while administering the technique, the Navy limited the amount of water poured on a student’s face to two pints. However, the JPRA attachment said that “up to 1.5 gallons of water” may be poured onto a “subject’s face.” While the Navy’s operating instructions dictated that “[n]o effort will be made to direct the stream of water into the student’s nostrils or mouth,” the description provided by JPRA contained no such limitation for subjects ofthe technique. While the Navy limited the use ofthe cloth on a student’s face to twenty seconds, the JPRA’s description said only that the cloth should remain in place for a “short period of time.” And while the Navy restricted anyone from placing pressure on the chest or stomach during the administration of this technique, JPRA’s description included no such limitation for subjects of the technique.

Think about it. Why would Haynes make sure Yoo had this description, particularly if Yoo was going to use a more restrained description of the practice in his memo (just as he did with his description of sleep deprivation and small box confinement)? Why didn’t they just use a description of what the Navy actually did? And where would JPRA have gotten that description? How did it happen that OLC ended up getting a description of waterboarding as it would ultimately be practiced?

There are a  number of possibilities: maybe JPRA got a hold of Mitchell and Jessen’s description of waterboarding as proposed and used that instead. Maybe CIA knew they were going to exceed the limits Yoo described in the memo.

Or, maybe JPRA somehow described waterboarding as it had already been applied to Abu Zubaydah.

I can’t yet prove which of those things happened. But I’d suggest that, now that others have decided to look at descriptions I’ve been writing about for 11 months, they also might want to look at this particular description, which in theory, at least, preceded the waterboarding purportedly authorized by the Bybee Memo six days later.

The DOD Techniques from Spring 2004

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Yesterday when I raised the question of what techniques DOD wanted to use in spring 2004, I said there was some ambiguity about what DOD was trying to get approved. In this post I’m going to lay out the conflicting sources of information. Given the totality of information, though, it appears that what DOD asked to use in spring 2004 was extended isolation.

As you’ll recall, Jack Goldsmith originally told Jim Haynes not to rely on the March 2003 Yoo memo in late December 2003. But the OPR report describes a request to use some technique in early March 2004 that set off the more active withdrawal and replacement for the memo.

Here’s how Goldsmith describes his conversation with Haynes in December 2003 in Terror Presidency:

“Jim, I’ve got bad news,” I began. “We’ve discovered some errors in the March 2003 opinion that John wrote you on interrogation. The opinion is under review and should not be relied upon for any reason. The twenty-four techniques you approved are legal, but please come back for additional legal guidance before approving any other technique, and do not rely on the March 2003 opinion for any reason.”

Of those 24 techniques Goldsmith said he told Haynes were legal, Rummy had listed four (incentive/removal of incentive, pride and ego down, mutt and jeff, and isolation) that required advance notification (though not approval) from the Secretary of Defense.

The OPR Report described that conversation slightly differently.

Accordingly, Goldsmith telephoned Haynes in late December 2003 and told him that the Pentagon could no longer rely on the Yoo Memo, that no new interrogation techniques should be adopted without consulting OLC, and that the military could continue to use the noncontroversial techniques set forth in the Working Group Report, but that they should not use any of the techniques requiring Secretary of Defense approval without first consulting OLC.

The Working Group Report approved 26 techniques generally and another 9 in exceptional circumstances. Read more →

Days after Taguba Reported Sadistic Criminal Abuse at Abu Ghraib, DOD Asked to Use More Torture

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On March 13, 2004, according to the OPR Report, Jack Goldsmith and Patrick Philbin went to Jim Comey’s house on a Saturday to alert him of something. The military had contacted Goldsmith, wanting to use a more extreme form of torture against a detainee–something like isolation, waterboarding, water dousing, or death threats.* [Update: In this post I explain why I think DOD was requesting extended isolation.] But, as Goldsmith had told DOD General Counsel Jim Haynes the previous December, the March 2003 opinion Yoo wrote that authorized DOD’s use of such techniques was hopelessly flawed. Goldsmith wanted to explain the flaws of the memo to Comey to get his support for withdrawing the memo. Comey, who was then acting Attorney General (since John Ashcroft was in the ICU with pancreatitis), agreed with Goldsmith’s judgment and–the OPR Report explains–later got John Ashcroft to agree that “any problems with the analysis should be corrected.”

That meeting at Comey’s house took place just four days after Goldsmith and Comey refused to reauthorize the President’s illegal wiretapping program, just three days after Alberto Gonzales and Andy Card raced to the ICU to attempt to convince John Ashcroft to override Comey and reauthorize the program, just two days after Bush reauthorized the program without DOJ concurrence, and just one day after Comey, Goldsmith, and Philbin threatened to quit if Bush didn’t make certain changes to the wiretap program.

The meeting also took place just four days after General Antonio Taguba issued a report finding that “numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees” at Abu Ghraib. Significantly, two of the allegations made against Americans by detainees that Taguba found to be credible–threatening detainees with a loaded pistol and pouring cold water on them–were among the four restricted torture methods that Haynes asked Goldsmith for authorization to use. While it’s not clear how much Goldsmith knew of DOD’s simmering torture problems (in Terror Presidency he said he didn’t learn of Abu Ghraib until it broke in April 2004, though aspects of his book clearly gloss then-classified events), Jim Haynes must have known about them.

The OPR Report doesn’t tell us how this conflict worked out–whether, in response to Goldsmith’s objections, DOD backed off its plans to torture a detainee or whether the White House overruled Goldsmith (or whether, as happened with a number of detainees, they used the technique before they asked to use it).

But we do know this occurred at a point when the White House was rejecting DOJ criticism of its counterterrorism programs. On March 11, in the context of the illegal wiretap program, Alberto Gonzales told Goldsmith that the President “had made an interpretation of law concerning his authorities and that DOJ should not act in contradiction of the President’s determinations.” And on March 16, again in the context of the illegal wiretap program, Gonzales had said,

While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve the goals of the activities authorized by the Presidential authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential authorization the interpretation of the law.

In other words, at precisely this moment, the White House was telling DOJ–and Goldsmith and Comey specifically–that what they thought about the law was interesting, but in no way binding on the President. Indeed, Gonzales was telling these two men they had best not act counter to the will of the White House.

I’ll explain more how I think this resolved in later posts. But for now, realize that one response DOD made to the Abu Ghraib scandal was to ask for more torture.

*There is some ambiguity in the unclassified OPR Report about what range of techniques DOD was trying to use. In a later post I’ll show why I think it was one of the latter three techniques listed here: waterboarding, water dousing, or death threats. [Note, I now think the request was for extended use of isolation, as I explain in this post.]