FBI’s Problem with Mohammed: Torture and Assassination

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Spencer has a must read story on the FBI’s recent training program for counter-terrorism agents on Islam.

I’m going to have a few points to make about it. But for the moment I wanted to (in addition to recommending you go read the whole thing) draw attention to this slide on Islamic law, explaining some of the reasons why it purportedly leads to militancy.

The problem, you see, is Mohammad “ordered the assassinations” of critics and “employed torture to extract information.”

I can imagine how such things would corrupt the people who practice such things.

John Rizzo: We Should Have Been Prouder of Our Cover-Up

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John Rizzo’s second regret is that after the CIA destroyed torture tapes in 2005, they should have briefed Congress and the Courts on their attempt to cover-up their own torture.

Mind you, that’s not exactly what he says. Here’s his version:

We should have made damn sure that the intelligence committees’ leadership—if not the full committees—were told about the destruction as soon as it happened. To take whatever lumps we deserved (and we clearly deserved some) then and there. We should have done the same thing with judges presiding over then-pending court cases potentially implicating the tapes, even if we weren’t obligated to do so as a technical legal matter. In short, we should have told everyone in all three branches in the Government who had even an arguable need to know.

To some degree this looks like a statement designed for John Durham’s benefit: a performance of real regret for doing something bone-headed (though why bother now that Durham has already let the statute of limitations expire on the case?). Though Rizzo probably overstates the outcome of Durham’s investigation here, as there is a difference between “no evidence of a cover-up” and “insufficient evidence to charge when your President is demanding you look forward.”

Ultimately, the various investigations would find no evidence of a cover-up, but rather that the whole thing was one monumental screw-up.

I’m particularly amused, however, by this statement.

In 2002, CIA videotaped the interrogation of the first captured Al Qaeda terrorist to be water-boarded. It was lawfully conducted, but the tapes were graphic and hard to watch. Almost immediately, those in CIA who made the tapes wanted to destroy them, fearing the faces of the interrogators on the tapes would put them in danger if and when they were ever made public.

We know the “hard to watch” and “fearing the faces of the interrogators” lines at most describe one, the smallest one, problem with the tapes. There were at least two other problems with them. First, they proved the torturers had exceeded DOJ guidelines.

As CIA’s Inspector General made clear, the waterboarding that was depicted on the tapes in 2003 did not fall within the limits of the Bybee Two memo, both because the torturers used far more water, forced it down Abu Zubaydah’s throat, and used it with far more repetition than allowed by the memo. Furthermore, the torturers exceeded even the guidelines the Counterterrorism Center set on sleep deprivation–though Yoo may (or may not have) have set the limit in the Bybee Two memo high enough to cover what had already been done to Abu Zubaydah. Folks in the IG’s office had about seven more pages of concerns about what was depicted on the torture tapes (PDF 86-93)–but that all remains redacted. So the tapes did not, in fact, match the written guidelines DOJ gave them.

In addition, the tapes show that the torturers had already altered the tapes to hide something on them.

The other, potentially bigger problem for those depicted in the torture tapes has to do with what once appeared on the 15 tapes that the torturers altered before November 30, 2002, when CIA lawyer John McPherson reviewed them. Before that point, the torturers had altered 21 hours of the torture tapes, which covered at least two of the harshest torture sessions. Had someone done forensics on the tapes before they were destroyed, we might have learned what happened during those 21 hours. But by destroying the tapes completely, the CIA prevented that from happening.

One potential problem would be if the interrogators used a coffin–as they had planned to–after John Yoo judged that mock burials would be illegal. Or maybe they just broke the law in other ways.

But given that Rizzo’s explanation for why the tapes were destroyed is so obviously a fiction, I’m guessing he knows well that the interrogation of Abu Zubaydah was not “lawfully conducted.”

I’m most interested, though, in this BS from Rizzo:

While we had informed the intelligence committee leadership in early 2003 of the tapes’ existence, we did not tell them on a timely basis about their unauthorized destruction. It was not our intent to hide that fact; it was simply a communications breakdown inside CIA in which then-Director Porter Goss neglected to inform the leadership as we agreed he would do the day he and I learned about the destruction. To this day I am convinced it was an unintentional oversight on his part, and I blame myself for not following up to make sure he had informed the Hill. The whole thing had just fallen through the cracks, something I saw happen far too often in my long Agency career.

Oh, my. Poor Porter Goss forgot to tell Congress that Jose Rodriguez had covered up illegal torture.

Or did he?

How is it that Crazy Pete Hoekstra got his very own briefing on torture on the very day the torture tapes were destroyed?

What went on at Crazy Pete’s briefing–a briefing for Crazy Pete alone, without his counterpart Jane Harman, who had long expressed opposition to destroying the torture tapes, or his own staff–on the very day CIA destroyed the torture tapes?

That’s right. As I have noted in the past, Crazy Pete Hoekstra (and Duncan Hunter, in a separate briefing) got a “complete brief” on the torture program on November 8, 2005, the day the torture tapes were destroyed.

An MFR lacking real detail (see PDF 32) at least reveals that Office of Congressional Affairs head Joe Wippl and C/CTC/LGL (who I believe would still be Jonathan Fredman) gave the briefing. A number of chronologies on Member Briefings included in this FOIA set note that no staffers attended these two briefings (see, for example, page 100 of this PDF), and those appear to be the only briefings for which CIA noted that no staffers attended. And note, minimal as the MFR on this is, it is one of just five or six briefings in the years before the torture tapes were destroyed for which CIA actually did do an MFR (one of the others is the briefing at which Pat Roberts okayed the destruction of the torture tapes).

In other words, this was one of the few torture briefings CIA’s Office of Congressional Affairs saw fit to memorialize. They don’t say what was briefed, really, but they’ve got proof that two men from the CIA briefed Crazy Pete and just Crazy Pete on something related to the torture program the day CIA destroyed the torture tapes.

It’s not definitive they were talking about the torture tapes, mind you; after all, the torture apologists were in full court press trying to prevent McCain’s Detainee Treatment Act from taking away all the torture toys.

But one more thing suggests there may be a connection. On the evening of the same day Crazy Pete got this briefing, the same day CIA destroyed the torture tapes, someone sent an email with a list of all Congressional briefings related to the torture program (see page 90-92 of the second PDF). It says only, “Per your request please find attached List of Members who have been briefed and a couple of other categories.” The list is interesting for two reasons. First, because the email forwarded a list with some key errors, in that it listed Harman, not Pelosi, as having been briefed at the first torture briefing in September 2002 (with a handwritten note, “error, it is Pelosi per 145166″). It also includes an error that remained in the CIA’s own records until last year, showing Goss, not Crazy Pete, as the Chair in a meeting in March 2005 (it’s unclear the meeting with Harman happened; what appears to have happened instead is an extra briefing with Dick Cheney for Pat Roberts and Jay Rockefeller).

More interestingly, the Crazy Pete and Hunter briefings–which had taken place that very day–were already in the Excel spreadsheet showing all the briefings. It’s as if they briefed Crazy Pete and Hunter just so they could print this out as part of a CYA attempt to say that Congress had approved the torture tape destruction. And maybe Crazy Pete and Hunter did just that.

Goss’ so-called oversight seems a lot more suspicious given that one of Dick Cheney’s lackies, Joe Wippl, and one of the people involved in the tape cover-up from CTC was off briefing Hoekstra that same day.

Now, we’ll never know, because as with most key briefings, the CIA didn’t make a record of what went on the briefing (and why would you, if you had gone to the trouble of excluding even Hoekstra’s aides?).

But as with Rizzo’s first regret, this seems to be more about rehashing the fictions that got him out of legal trouble than any actual regret.

Rizzo’s Brief with Nancy Pelosi: Bush Didn’t Include Torture in the Finding Authorizing Torture

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I’m going to deal with John Rizzo’s purported “mea culpa” in three posts, one each for each of his regrets.

Rizzo’s first regret is that the CIA did not push the White House to allow it to brief the entire intelligence committees so they could, as Rizzo said, “allow the committees—compel them, really—to take a stand on the merits to either endorse the program or stop it in its tracks.”

It’s an argument I totally agree with. But to make his argument, Rizzo mobilizes some of the same lies about the CIA’s briefing of the torture program, notably about Nancy Pelosi. He does so, however, with a really spooky move.

Shortly thereafter, almost seven years after CIA first informed her about its employment of waterboarding and the other EITs, the Speaker of the House of Representatives, Nancy Pelosi, stood before the cameras and claimed that all CIA ever told her was that waterboarding was being “considered” as an interrogation tactic, not that it would be ever employed. Confronted with evidence to the contrary, the Speaker subsequently conceded that she had been informed about EITs from the outset but insisted she was always opposed to them but powerless to do anything to stop them. None of which was true, but in hindsight the Speaker’s moonwalk was hardly unforeseeable.

It’s the same old story turning the question of whether Pelosi was briefed prospectively or historically into a claim that “she had been informed about EITs from the outset” without mentioning that even Porter Goss’ version of the briefing is consistent with Pelosi’s claim that CIA didn’t tell them in September 2002 that they had already started using torture. Rizzo’s use of this tired tactic is all the worse considering that 1) it appears that he was not at the briefing in question, and 2) the CIA changed its record of the briefing after the fact.

In other words, Rizzo’s attack on Pelosi is total bullshit. Furthermore, the attack falsely suggests that CIA briefed Congress before torture started.

But his use of Pelosi to make this point is rather intriguing. Rizzo makes no mention of Bob Graham’s attempt to exercise oversight over the torture program, which was discouraged by the CIA and thwarted by Pat Roberts.

More significantly, Rizzo makes no mention of Jane Harman, who did object to the program but proved unable to “stop it in its tracks.”

Rizzo’s silence about CIA’s briefing to Harman–and her objection to the torture program–is more significant given something else he asserts in this piece.

A few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership. Like almost every such authorization issued by presidents over the previous quarter-century, this one was provided to the intelligence committees of the House and Senate as well as the defense subcommittees of the House and Senate appropriations committees. However, the White House directed that details about the most ambitious, sensitive and potentially explosive new program authorized by the President—the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives—could only be shared with the leaders of the House and Senate, plus the chair and ranking member of the two intelligence committees.

Rizzo starts by invoking the September 17, 2001 Presidential Finding that authorized the CIA to capture and detain al Qaeda members. He tells us–this may be news, actually–that that Finding was briefed to the entire intelligence committees and to appropriations committees. But then he says that the torture part of that program “could only be shared” with the Gang of Eight.

The detail is interesting, by itself, for the way it contradicts Rizzo’s later (false) claim that “every other member of Congress” “would be kept in the dark” about the torture program. After all, the Leaders are also members of Congress, but if the CIA’s own error-ridden briefing list is to be believed, the only Leader who ever got briefed in that role was Bill Frist (while Appropriations Subcommittee Republicans Duncan Hunter, Ted Stevens, and Thad Cochran also got briefings, as well as John McCain).

The comment is more interesting for what it says about the Finding itself. The CIA has long suggested (and reporting has repeated) that that Finding authorized the torture program. But Rizzo is making it clear here that that Finding did not include authorization for the torture program. The oral briefings the Gang of Four got were the only way the way the President informed Congress about the torture program.

While it’s significant that Rizzo is here admitting that fact, we already knew it. We knew it because Jane Harman twice asked about a Finding on torture, once implicitly in 2003 when she asked “Have enhanced techniques been authorized and approved by the President?” and once in the briefing CIA gave her on July 13, 2004, when she,”noted that the [redacted–almost certainly the Finding] did not specify interrogations and only authorized capture and detention.”

In other words, Rizzo basically admits that the point Jane Harman appears to have made repeatedly was correct: the torture program had not been formally included in a Finding briefed to Congress.

Rizzo’s lies about briefing Congress don’t appear to be the issue here. Rather, the problem is that the Administration did not issue the legally required Finding to Congress.

The Death Squads “Protecting” Our Country

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There was an odd pair of stories in the WaPo last week. On Thursday, there was a story by two reporters on the CIA’s increased focus on killing its targets, whether by drone or paramilitary strike.

In the decade since the Sept. 11, 2001, attacks, the agency has undergone a fundamental transformation. Although the CIA continues to gather intelligence and furnish analysis on a vast array of subjects, its focus and resources are increasingly centered on the cold counterterrorism objective of finding targets to capture or kill.

Then, on Friday, there was an excerpt of the chapter from Dana Priest and Will Arkin’s book on JSOC. In addition to describing JSOC’s own lethality…

JSOC’s lethality was evident in its body counts: In 2008, in Afghanistan alone, JSOC commandos struck 550 targets and killed roughly a thousand people, officials said. In 2009, they executed 464 operations and killed 400 to 500 enemy forces. As Iraq descended into chaos in the summer of 2005, JSOC conducted 300 raids a month.

…. It also described how JSOC has been infiltrating DC’s bureaucracy.

Then he gave access to it to JSOC’s bureaucratic rivals: the CIA, NSA, FBI and others. He also began salting every national security agency in Washington with his top commandos. In all, he deployed 75 officers to Washington agencies and 100 more around the world. They rotated every four months so none would become disconnected from combat.

Some thought of the liaisons as spies for an organization that was already too important.

Both stories were good additions to earlier reports that have already laid this groundwork. But I found them notable for the way they were featured at the WaPo with nary a nod at each other. Sure, the CIA story noted that it has collaborated with JSOC. And the JSOC story talks about them feeding targeting information to CIA. Both stories claim their paramilitary force has the greater authority. Both at least mention Leon Panetta; the CIA one mentions David Petraeus; neither mentions Panetta and Petraeus swapping agencies.

But what we’re really talking about is an increasing focus on paramilitary approaches to security, using both JSOC and CIA, with the reporting agency seemingly chosen based on which offers the neatest legal cover.

The point, though, is to have super-lethal organizations unbound by the bureaucracy or law that puts limits to them.

And, as the CIA story admits, the civilian leadership–the President–matters less and less, at least in terms of receiving analysis (and presumably making decisions based on that analysis) or judging efficacy.

“We were originally set up with a more singular focus on policymakers,” said Moore, the head of the CIA’s analytic branch. But for a growing number of analysts, “it’s not just about writing for the president. It’s about gaining leads.”

[snip]

“When CIA does covert action, who does the president turn to to judge its effectiveness?” a former senior U.S. intelligence official. “To the CIA.”

Which brings us to this David Swanson piece, relating an exchange Susan Harman had with Berkeley’s Law School Dean, Chris Edley. When asked why the Obama Administration had not prosecuted torture or wiretapping, Edley revealed the Administration was worried about the CIA, NSA, and military “revolting.”

“Then Dean Chris Edley volunteered that he’d been party to very high level discussions during Obama’s transition about prosecuting the criminals. He said they decided against it. I asked why. Two reasons: 1) it was thought that the CIA, NSA, and military would revolt, and 2) it was thought the Repugnants would retaliate by blocking every piece of legislation they tried to move (which, of course, they’ve done anyhow).

“Afterwards I told him that CIA friends confirmed that Obama would have been in danger, but I added that he bent over backwards to protect the criminals, and gave as an example the DoJ’s defense (state secrets) of Jeppesen (the rendition arm of Boeing) a few days after his inauguration.

“He shrugged and said they will never be prosecuted, and that sometimes politics trumps rule of law.

Now I’ve long suspected that Obama backed off all rule of law for both the national security establishment and the banks out of fear he’d end up like John F. Kennedy. And Edley’s comments, at least, don’t suggest Obama was worried the “revolt” would involve physical threats to himself.

Nevertheless, these three developments together really ought to be a worry.

We’re expanding two lethal paramilitary forces–death squads–that (taken together, especially) evade normal oversight. It’s not clear whether the civilian leadership controls them–or vice versa.

Is it really a good idea to make them even more lethal?

Moussa Koussa’s Security File

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Journalists and human rights groups found a collection of damning–but not the most damning–records of Libya’s cooperation with the CIA and MI6, all wrapped up in binders with labels marking CIA and UK collaboration.

Documents found at the abandoned office of Libya’s former spymaster appear to provide new details of the close relations the Central Intelligence Agency shared with the Libyan intelligence service – most notably suggesting that the Americans sent terrorism suspects at least eight times for questioning in Libya despite that country’s reputation for torture.

Although it has been known that Western intelligence services began cooperating with Libya after it abandoned its program to build unconventional weapons in 2004, the files left behind as Tripoli fell to rebels show that the cooperation was much more extensive than generally known with both the C.I.A. and its British equivalent, MI-6.

Some documents indicate that the British agency was even willing to trace phone numbers for the Libyans, and another appears to be a proposed speech written by the Americans for Col. Muammar el-Qaddafi about renouncing unconventional weapons.

The documents were discovered Friday by journalists and Human Rights Watch. There were at least three binders of English-language documents, one marked C.I.A. and the other two marked MI-6, among a larger stash of documents in Arabic. [my emphasis]

And yet few people seem to have thought how curious it is that such a collection came to become accessible all wrapped up with a pretty bow.

As I said, it appears these binders don’t include what would be the most damning record of CIA collaboration–which would be a record of how it was that Ibn Sheik al-Libi came to be suicided in April or May 2009, just as records of the US torture program were released. Nor does it include what would be the most damning record of MI6 collaboration, negotiations trading release of the Lockerbie bomber, Abdelbaset al-Megrahi, in August 2009 for BP drilling rights in Libya. The records reportedly stop short in 2007 (in spite of a similar “discovery” just last week of a letter al-Megrahi wrote from Scottish prison in late 2007 or early 2008, declaring his innocence), before any of those events.

The documents cover 2002 to 2007, with many of them concentrated in late 2003 and 2004, when Moussa Koussa was head of the External Security Organization. (Mr. Koussa was most recently Libya’s foreign minister.)

Note, too, the way the NYT ties these files to Moussa Koussa, the Michigan State-educated former Libyan spook in chief. Perhaps the timing and the English language of these makes that tie clear, but it seems … convenient, in ways I’ll return to.

Read more →

Rendition Flight Lawsuit Gives Lie to Government’s Jeppesen State Secrets Claim

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When they screw our tortured clients, they assert “National Security”, but when it is a matter of money, they don’t. — Reprieve’s Clive Smith

The British human rights organization Reprieve figured out that a NY state court case–a billing dispute between two aviation companies–pertained to rendition flights going back to 2002; it tipped off the press. The Guardian (which offers a separate story with links to some of the documents) lays out how the flight patterns tie to known renditions.

Gulfstream N85VM has already been identified as the aircraft that rendered Hassan Mustafa Osama Nasr, an Egyptian cleric known as Abu Omar, after CIA agents kidnapped him in broad daylight in Milan in February 2003 and took him to Cairo. Through close examination of the invoices it is possible to identify other rendition flights in which a number of high-profile al-Qaida suspects may have been rendered.

In August 2003, for example, Richmor submitted an invoice for $301,113 for eight flights over three days that took the Gulfstream to Bangkok, via Alaska and Japan, on to Kabul via Sri Lanka, and then home again via Dubai and Shannon (pdf). This operation appears to have been the rendition of Encep Nuraman, the leader of the Indonesian terrorist organisation Jemaah Islamiyah, better known as Hambali. He had been captured in Thailand shortly before the aircraft set off.

The court heard that in October 2004 the aircraft’s tail number was changed to N227SV after the US government discovered that its movements were being tracked. The following March the aircraft was publicly linked to the Abu Omar rendition. Phillip Morse, the aircraft’s ultimate owner, said he was stunned to discover how his plane was being used.

And it describes how the owners came to fear flying their own plane because it had been publicly linked to renditions.

By October 2006, Richards was writing to Moss to complain that his company was suffering negative publicity (pdf), losing business and receiving hate mail. The Gulfstream’s crews were afraid to leave the country. “In the future, whenever the name ‘Richmor’ is googled this will come up. N227SV will always be linked to renditions. No tail number change will ever erase that and our requests for government assistance in this matter have been ignored.”

The AP provides details on how the government provided bogus diplomatic notes

Every time the Gulfstream and other planes in Richmor’s fleet took to the air, they carried one-page transit documents on State Department letterhead. The notices, known as “letters of public convenience” were addressed “to whom it may concern,” stating that the jets should be treated as official flights and that “accompanying personnel are under contract with the U.S. government.”

In trial testimony, Moss said the documents were provided from the government to DynCorp, which furnished them to Richmor. Richards said the letters were given to flight crews before they left on each flight, but declined to explain their use.

The notes, signed by a State Department administrative assistant, Terry A. Hogan, described the planes’ travels as “global support for U.S. embassies worldwide.”

The AP could not locate Hogan. No official with that name is currently listed in State’s department-wide directory. A comprehensive 2004 State Department telephone directory contains no reference to Hogan, or variations of that name — despite records of four separate transit letters signed by Terry A. Hogan in January, March and April 2004. Several of the signatures on the diplomatic letters under Hogan’s name were noticeably different.

(Reprieve gave the story to the WaPo too, which did a thoroughly perfunctory job with it.)

All three stories note that the litigants expected the government to intervene–as they did in the Jeppesen suit–but did not.

Which, as Smith notes, sort of proves the lie behind the Jeppesen state secrets invocation. The government let all the details behind the KSM flights appear in unsealed court dockets. The only thing that separates what would have appeared in the Binyam Mohamed suit against Jeppesen and this suit is the explicit demand for compensation for a torture victim.

Turns Out Cheney Was Never Really Vice President After All

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I regret to inform you–and I do mean regret–that I’m going to have set aside a good deal of the next week “looking backward” at Dick Cheney’s career. His book is out next week and already he’s dropping some bombs, as only Dick can drop bombs.

Such as, for some period during his tenure as VP, there was a signed resignation letter in his man-sized safe (presumably right next to the Wilson op-ed on which Cheney hand-wrote an accusation that Plame sent her husband on a junket), known only to W and “a Cheney staffer.”

“I did it because I was concerned that — for a couple of reasons,” Cheney tells Jamie Gangel. “One was my own health situation. The possibility that I might have a heart attack or a stroke that would be incapacitating. And, there is no mechanism for getting rid of a vice president who can’t function.”

Cheney kept the signed letter locked in a safe, he reveals in the memoir “In My Time,” which comes out Tuesday. President George W. Bush and a Cheney staffer knew about the letter.

I presume that NBC and ABC will be sufficiently incompetent that they won’t ask Cheney what the other reasons were. Or who the staffer was.

So barring actually learning that information (until I go shell out an inordinate amount for a book I plan to throw a lot), here are my guesses.

In addition to signing the letter in case his heart gave out and turned him into a vegetable, Cheney also kept it in case he suddenly got into very big legal trouble. Over leaking a CIA officer’s identity, maybe, over knowingly authorizing torture (including in a few cases I expect we’ll learn more about), or misusing the military. Or whatever else.

And if just one staffer ever knew of the letter, my bet is David Addington knew.

But here’s the thing. Once Cheney signed that resignation letter, was he still VP? Or does that mean all the things he did, bootstrapping his own constitutional power onto the President’s explicit power, were illegal? We know Republicans claimed that he could insta-declassify things like NIEs and CIA officers identities. But if he did that after having signed a letter of resignation that the President knew about, doesn’t that mean he wasn’t VP anymore? And those things were triply illegal?

Whoo boy. Send beer. I can tell already it’s gonna be a long week.

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.

Reliability and the UK’s Guidelines on Using Torture

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The Guardian has liberated the UK’s policy on cooperating with liaison services that torture. ((h/t Rosalind) As the Guardian explains the policy basically sets up a bureaucracy to weigh whether the value of the information outweighs the imperative not to torture.

The interrogation policy – details of which are believed to be too sensitive to be publicly released at the government inquiry into the UK’s role in torture and rendition – instructed senior intelligence officers to weigh the importance of the information being sought against the amount of pain they expected a prisoner to suffer. It was operated by the British government for almost a decade.

[snip]

One section states: “If the possibility exists that information will be or has been obtained through the mistreatment of detainees, the negative consequences may include any potential adverse effects on national security if the fact of the agency seeking or accepting information in those circumstances were to be publicly revealed.

“For instance, it is possible that in some circumstances such a revelation could result in further radicalisation, leading to an increase in the threat from terrorism.”

The policy adds that such a disclosure “could result in damage to the reputation of the agencies”, and that this could undermine their effectiveness.

It’s bad enough that the Brits have taken such a calculating approach to torture–effectively saying, well, sometimes you’ve got to let the US or Uzbekistan torture for you.

But in their discussions–in effect, the last two paragraphs of the guidelines–about whether information gathered by torture is reliable or not suggests the strong possibility that they’re better not asking if information came from torture.

The circumstances in which detainee information has been obtained will be relevant in assessing its reliability. Accordingly, the Agency should wherever possible seek as much context as possible, particularly if the intelligenece is threat-related. However, the Agencies’ ability to do this is often limited and, in any event, they may not press to be told the precise sourcing where to do so might damage co-operation and the future flow of intelligence from the liaison service in question.

It is established as a matter of law that information may be used as the basis for operational action, whatever the circumstances in which it has been obtained. However, where it is established that information has been obtained by torture, it is not possible to rely on that information in legal proceedings, for instance to justify the Agency’s operational actions or to support the taking of steps against an individual, such as deportation or exclusion. LAs are able to advise on the possible application of this evidential bar in particular cases.

Much of this policy appears to designed to allow for the use of torture, while pretending that doing so doesn’t implicate Britain in the torture.

But because of this insulating effort, the Brits seem likely to avoid asking about the conditions under which information was collected.

And yet they would treat it as potentially reliable intelligence, precisely when knowing torture elicited it might cause the government to reassess its accuracy.

It all seems designed to set up a industry of torture, in which abusive allies confirm their value in the war on terror by using torture to produce “leads,” which the Brits will then treat as accurate in an effort to pretend that torture doesn’t lie at the heart of this industry.