CIA Changed the Pelosi Briefing Description after Deciding to Destroy Torture Tapes

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I’m working on some deep weeds for a post later on Monday (hopefully).

But as a preliminary to them, I wanted to point out a minor–but very critical–bit of timing.

As I pointed out in the comments to this thread, someone (I’ll show in my new weedy post why it might be then-Counterterrorism Center Legal Counsel Jonathan Fredman) changed the initial description of the briefing that Jose Rodriguez and two others (I believe Fredman was one of the two) gave to Porter Goss and Nancy Pelosi on September 4, 2002. To see the documents showing discussing the alteration (but not the content of it), see PDF 84 of this set and PDF 11-12 of this set.

That’s suspicious enough. But as the email discussions of destroying the torture tape show (see PDF 3), the briefing and the alteration to the briefing record happened the day before and the day after–respectively–the day “HQS elements” started talking seriously about destroying the torture tapes.

On 05 September 2002, HQS elements discussed the disposition of the videotapes documenting interrogation sessions with ((Abu Zubaydah)) that are currently being stored at [redacted] with particular consideration to the matters described in Ref A Paras 2 and 3 and Ref B para 4. As reflected in Refs, the retention of these tapes, which is not/not required by law, represents a serious security risk for [redacted] officers recorded on them, and for all [redacted] officers present and participating in [redacted] operations.

[snip]

Accordingly, the participants determined that the best alternative to eliminate those security and additional risks is to destroy these tapes [redacted]

So here’s what this looks like in timeline form:

September 4, 2002: Jose Rodriguez, C/CTC/LGL (probably Fredman) and a CTC Records officer brief Porter Goss and Nancy Pelosi on Abu Zubaydah’s treatment. According to both Goss and Pelosi, CIA briefs them on torture techniques, but implies they are hypothetical techniques that might be used in the future, not the past.

September 5, 2002: Unnamed people at CIA HQ discuss destroying the torture tapes, ostensibly because of danger to CIA officers conducting the torture.

September 6, 2002: Someone (possibly Jonathan Fredman or someone else in CTC’s Legal department) alters the initial description of the Goss-Pelosi briefing, eliminating one sentence of it. “Short and sweet” Rodriguez responded to the proposed change.

September 9, 2002: CIA records show a scheduled briefing for Bob Graham and Richard Shelby to cover the same materials as briefed in the Goss-Pelosi briefing. The September 9 briefing never happened; Graham and Shelby were eventually briefed on September 27, 2002 (though not by Rodriguez personally).

September 10, 2002: The altered description of the briefing is sent internally for CTC records. This briefing is never finalized by Office of Congressional Affairs head Stan Moskowitz into a formal Memorandum for the Record.

Or, to put it more plainly, they briefed Pelosi, decided they wanted to destroy the torture tapes (there’s no record Pelosi was told about the tapes), and then tweaked the record about what they had said to Pelosi.

“Incentives for Cooperation”

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David Kris gave a speech at the Brookings Institute last week, largely intended to make the case for civilian trials. Here’s the main framework of the speech:

Today, however, the consensus that developed in the aftermath of 9/11 shows some signs of unraveling.  In particular, there are some who say that law enforcement can’t – or shouldn’t – be used for counterterrorism.  They appear to believe that we should treat all terrorists exclusively as targets for other parts of the Intelligence Community or the Defense Department.

The argument, as I understand it, is basically the following:

  1. We are at war.
  2. Our enemies in this war are not common criminals.
  3. Therefore we should fight them using military and intelligence methods, not law enforcement methods.

This is a simple and rhetorically powerful argument, and precisely for that reason it may be attractive.

In my view, however, and with all due respect, it is not correct.  And it will, if adopted, make us less safe.  Of course, it’s not that law enforcement is always the right tool for combating terrorism.  But it’s also not the case that it’s never the right tool.  The reality, I think, is that it’s sometimes the right tool.  And whether it’s the right tool in any given case depends on the specific facts of that case.

Here’s my version of the argument:

  1. We’re at war.  The President has said this many times, as has the Attorney General.
  2. In war you must try to win – no other goal is acceptable.
  3. To win the war, we need to use all available tools that are consistent with the law and our values, selecting in any case the tool that is best under the circumstances.

We must, in other words, be relentlessly pragmatic and empirical.  We can’t afford to limit our options artificially, or yield to pre-conceived notions of suitability or “correctness.”  We have to look dispassionately at the facts, and then respond to those facts using whatever methods will best lead us to victory.

Put in more concrete terms, we should use the tool that’s designed best for the problem we face.  When the problem looks like a nail, we need to use a hammer.  But when it looks like a bolt, we need to use a wrench.  Hitting a bolt with a hammer makes a loud noise, and it can be satisfying in some visceral way, but it’s not effective and it’s not smart.  If we want to win, we can’t afford that.

If you take this idea seriously, it complicates strategic planning, because it requires a detailed understanding of our various counterterrorism tools.  If you’re a pragmatist, focused relentlessly on winning, you can’t make policy or operational decisions at 30,000 feet.  You have to come down, and get into the weeds, and understand the details of our counterterrorism tools at the operational level.

And that leads me to this question:  as compared to the viable alternatives, what is the value of law enforcement in this war?  Does it in fact help us win?  Or is it categorically the wrong tool for the job – at best a distraction, and at worst an affirmative impediment?

It really summarizes the Obama Administration’s embrace of man-ego-driven “pragmatism” and wonkiness in all things. The response to outright demagoguery (the “we are at war so we must torture and kill kill kill” perspective), the Obama Administration presents an alternative, purportedly pragmatic formulation that suffers from its own problems.

“We are at war either because of or as evidenced by the fact that the two big men keep saying we are.” Sure, Kris’ speechwriter might just have been trying to rebut the nutters who like to score points by claiming that Obama doesn’t agree with Dick Cheney that This Is War. But note what it does for this entire “pragmatic” argument: it presents the fact–“we are at war” with no examination of either the statement itself or the nuance covered up by it. It avoids questions like, “Against whom are we at war?” “Are we just at war against formal members of al Qaeda, or are we also at war against American losers who read Anwar al-Awlaki on the interToobz and go on to buy a GPS but never actually succeed at contacting anyone from al Qaeda?” “Why are we at war against some terrorism but not other terrorism and, at this point, are we even targeting the most effective and dangerous terrorists?” “What is the objective of this war?” “If we’ve embraced the concept of war, have we also embraced the legal concepts of war?” The Obama Administration has, like the Bush Administration, actually picked and chosen when it wants to claim to be at war and when that’s inconvenient; with a little more examination of the premise itself, we might be able to find a more reasonable way to resolve these inconsistencies. But “pragmatic” claim notwithstanding, this entire thought exercise starts by refusing to examine the foundational premise.

“We’re at war and so we must win!” Here’s where unexamined first principles, driven by man-ego, really introduce problems into this formula. Sure, if you’re at war, you want to win it (though it helps to define what winning looks like). But it assumes certain sorts of acts in its definition: “We must crush those Islamic extremists in our bare hands and eat them for breakfast!” (If you’re John Yoo, you must crush the testicles of Islamic extremists’ children…) Read more →

Dawn Johnsen: Finish the Job of Fixing Office of Legal Counsel

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Dawn Johnsen has a must-read op-ed today describing how the Bybee memo damaged the Office of Legal Counsel.

In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department’s Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination — withdrawn this spring — to head this office. While attention understandably is focused on confirming the president’s Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.

It is long past time to halt the damage caused by the “torture memo” by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding.

There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo — and my profoundly negative reaction to it — was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.

While I agree with everything Johnsen says (go figure), I’m wondering, why now? Is she worried that Obama’s preparing to nominate someone who does think the Bybee memo is reasonable? There’s also this bit, at the end, which suggests she’s pushing for more transparency in OLC than there is now.

The example of the torture memo argues heavily for greater transparency so that lawmakers and the American people may better understand and respond to the actions of their government. Of course, public explanations must safeguard national security, including sources and methods. But the memo’s conclusion that the president’s constitutional authorities entitled him to override the federal torture law is a clear example of legal analysis the government should make public. That’s how democracies work.

[snip]

The OLC can be the last word on legal issues that may never get to court. In such cases, public scrutiny and debate provide the most effective check against unduly expansive theories of presidential power. The stability of the rule of law must not depend on leaks.

Granted, the torture memo did come out via a leak, so her comment is not totally out of context. But we have had a recent leak about OLC’s involvement in efforts to make our stance on Gitmo trials coincide with our stance on drones.

Is there something specific Johnsen is responding to?

Jose Rodriguez Briefed Pelosi and Goss in Deceptive Abu Zubaydah Briefing

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As MadDog noted, Judicial Watch just got some new documents detailing briefings Congress received. Or rather, they got new documents providing further proof that CIA has no fucking clue what it said to Congress during some key briefings (this batch shows, for example, that the fall 2003 briefings were never finalized into a Memo for the Record, just as earlier ones weren’t, and PDF 48 shows that many key briefings weren’t recorded).

But in what I’ve reviewed so far, the new documents reveal one important new detail. Page 44 of this PDF provides a mostly redacted record of the briefing CIA gave Porter Goss and Nancy Pelosi on Abu Zubaydah’s torture on September 4, 2002. We know–because both Goss and Pelosi have described this detail the same way–that CIA did not tell the House Intelligence leadership that it had already tortured Abu Zubaydah. CIA told Goss and Pelosi about waterboarding, but spoke of it as a technique that might hypothetically be used in the future, not something that had been used 83 times on one detainee the prior month.

But we haven’t known who gave that badly deceptive briefing. Mind you, I had my suspicions. I thought it likely that Jose Rodriguez, then head of Counterterrorism Center, and the guy who ordered the torture tapes destroyed three years later, was a likely candidate to have done that briefing. But there was no proof.

Until today.

Assuming CIA’s own documentation is accurate (always a big assumption, given the CIA), then Jose Rodriguez–listed as D/CTC–is the one who gave Goss and Pelosi that deceptive briefing.

Jose Rodriguez went on to participate in destroying evidence of torture that should have been briefed to Congress. And these documents prove (again, presuming CIA’s documents are accurate) that Jose Rodriguez was deceiving Congress about torture right from the start.

Allowing Human Experimentation under the War Crimes Act

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I felt like they were experimenting and trying out techniques to be used later on other people. — Abu Zubaydah to the Red Cross

Physicians for Human Rights just released a report documenting what Jeff Kaye and more recently Jason Leopold have been discussing for years: America’s torturers were conducting a kind of human experimentation on the earliest detainees. PHR is calling on Attorney General Holder to investigate whether CIA’s medical personnel committed the war crime of human experimentation.

Most of the contents of the report will be familiar to readers of this blog. I find the following detail the most interesting new observation.

As part of the 2006 Military Commissions Act, the WCA was amended to delineate the specific violations of Common Article 3 that would be punishable. Among those violations is “performing biological experiments.” The amended language prohibits:

The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.61

While this language maintains the existing prohibition on biological experiments contained in the previous version of the WCA, the effect of this amendment appears to weaken the prohibition by moving away from the type of strict language found in the Geneva Conventions (Third Geneva Convention, Article 13), which states:

No prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental, or hospital treatment of the prisoner concerned and carried out in his interest.

The new language of the WCA added two qualifications that appear to have lowered the bar on biological experimentation on prisoners. That language requires that the experiment have a “legitimate” purpose, but does not require that it be carried out in the interest of the subject. It also adds the requirement that the experiment not “endanger” the subject, which appears to raise the threshold for what will be considered illegal biological experimentation.

That is, one of the things the Bush Administration did with the Military Commissions Act was retroactively change the law on human experimentation such that experimentation no longer needed to have a personal benefit to the research subject, and could instead be justified because of a “legitimate” interest.

You know, like the “legitimate” interest of knowing how long a human could be subject to sleep deprivation before they started hallucinating?

Which suggests to me that someone in government recognized the risk CIA’s torturers faced.

If Ever You Doubted Water-Boarding KSM Was a Bad Decision…

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George Bush is on the rubber chicken circuit in anticipation of the release of his book, A’m the Deciderer Decision Points. Which means he’s now out in public defending two of his “greatest” decisions, side-by-side:

George Bush admitted yesterday that Khalid Sheik Mohammed, the self-proclaimed mastermind of the 9/11 attacks, was waterboarded by the US, and said he would do it again “to save lives”.

“Yeah, we waterboarded Khalid Sheikh Mohammed,” the former president told a business audience in Grand Rapids, Michigan. “I’d do it again to save lives.”

[snip]

In his speech, Bush also defended the decision to go to war with Iraq in 2003. He said ousting Saddam Hussein “was the right thing to do and the world is a better place without him”.

Of course, Bush has absolutely zero proof that waterboarding KSM saved lives. Just as he can’t be sure that the world is better without Saddam, hundreds of thousands of Iraqis (and almost 5,000 American servicemen and women), with the US deep in debt, and the seeds of the same kind of abusive government–this one with close ties to Iran–in place in Iraq.

But the really telling bit about this news is that it puts the decision to waterboard KSM right there next to the decision to launch a war of choice rather than focus on beating the terrorists who attacked us. That is, it puts Bush’s decision to embrace torture right there next to what many consider one of the biggest foreign policy mistakes in history.

Task Force Conclusion: “Many” Detainees Were Legally Detained

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While I was away celebrating my 20th college reunion this weekend (thanks for filling in, bmaz), the WaPo liberated the Gitmo Review Task Force report. As the WaPo reported, the big takeaway is the government’s admission that over 55% of those reviewed by the Task Force were what it called “low level fighters” in al Qaeda, the Taliban, or “associated groups.” The claim itself is not all that credible–and that doesn’t include some of the 20% whom the Task Force described as having some organizational role in al Qaeda but might just mean they’re one of Osama bin Laden’s seemingly infinite number of bodyguards. Just 10% were the “worst of the worst” that Gitmo was supposed to hold (the report did not name Abu Zubaydah among those, for example).

All of which might explain why the report was so desperate to claim that detaining these men all these years–well, “many” of them, anyway–wasn’t illegal.

For many of the detainees approved for transfer, however, the review participants found there to be reliable evidence that the detainee had engaged in conduct providing a legal basis for his detention.

No word about the others who have been detained for up to 8 years for whom the Task Force found no legal basis to hold.

Similarly, the report implies that torture was not why the government cannot prosecute “most” of the 48 detainees it has slated for indefinite detention.

Notably, the principal obstacles to prosecution in the cases deemed infeasible by the Task Force did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainee was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum, as described above.

It describes those jurisdictional limitations this way:

Second, many of the detainees cannot be prosecuted because of jurisdictional limitations. In many cases, even though the Task Force found evidence that a detainee was lawfully detainable as part of al-Qaida–e.g., based on information that he attended a training camp, or played some role in the hierarchy of the organization–the Task Force did not find evidence that the detainee participated in a specific terrorist plot. The lack of such evidence can pose obstacles to pursuing a prosecution in either federal court or a military commission. While the federal material support statutes have been used to convict persons who have merely provided services to a terrorist organization, e.g., by attending a terrorist training camp, there are potential limitations to pursuing such a charge against the detainees. 21

21 Among these limitations: First, the two relevant statutes–18 USC 2339A and 2339B–were not amended to expressly apply extraterrorially to non-US persons until October 2001 and December 2004, respectively. Thus, material support may not be available as a charge in the federal system unless there is sufficient evidence to prove that a detainee was supporting al-Qaida after October 2001 at the earliest. Second the statute of limitations for these offenses is typically eight years (see 18 USC 3286), which may bar prosecution for offenses that occurred well before the detainee’s capture. Third, because the statutory maximum for material support is 15 years (where death does not result from the offense), sentencing considerations may weigh against pursuing prosecution in certain cases. Some of these considerations would not apply to material support charges brought in the military commissions; however, the legal viability of material support charges brought in the military commission system has been challenged on appeal in commission proceedings.

Let’s take a moment to lay out what these passages all suggest, but don’t admit candidly:

  • “Concerns” about tainted evidence explained why at least “some” of these people cannot be prosecuted. I take that as a shorthand admission that these men–or their accusers–were abused in US custody. And the solution, apparently, is to just keep them in custody. The report doesn’t say how the government can trust the evidence itself if it is tainted. I guess they just know.
  • For a significant number of the 48 men slated for indefinite detention, there is no evidence that the man participated in terrorism. Indeed, given the description, it appears there isn’t even any evidence the man took part in an attack on American troops (even granting the government claim that all such attacks were necessarily illegal and not self-defense, which is itself bogus). And given the timing implied by the October 2001 deadline, there’s not even any evidence these men continued their affiliation with Al Qaeda after 9/11 made it clear the organization was attacking US civilians. In short, a significant number of these 48 men are just like the mujahadeen the US used to fund in the glorious Reagan days. But in the glorious post-9/11 days, such actions qualify a man for indefinite detention.
  • Read more →

Abu Zubaydah’s Habeas Doodle

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I want to make one more point about the interview Jason Leopold did with Jon Kiriakou last week. Jason asks Kiriakou about Dan Coleman’s judgment that Abu Zubaydah’s diaries reveal him to be mentally ill. Kiriakou agrees with Coleman that the diaries were written in multiple voices, but dismisses that by saying they were a creative outlet. (my transcription, starting around 24:00)

Those weren’t diaries. … They were journals and doodle books. He would write these letters to himself. They weren’t really letters to himself. It was like a work of fiction. It was just something to relieve some stress and to be creative. Now if you read this as a diary, sure you’re gonna say the guy’s schizophrenic, he has split personalities, he’s writing letters to himself. But they weren’t diaries.

[Jason asks whether Suskind’s description of the diary having three different voices is correct]

No, completely true. They were written, like I say, to himself, each personality to the other. But it was a creative outlet. It wasn’t, they weren’t the ramblings of a lunatic. It wasn’t some insane guy that couldn’t control insanve voices in his head and had to get it all down on paper. It was a creative outlet, nothing more.

For someone critical of the CIA’s waterboarding but still needing to rationalize his treatment, the claim the diaries are fictional offers a nice explanation for what–Kiriakou confirms–are multiple voices in the diary.

But that introduces a problem. As the government stated repeatedly in a filing last year, they base most of their case for holding Abu Zubaydah on his diaries.

The Government filed a factual return and supporting material in this case on April 3, 2009. The Government’s factual return included six volumes of diaries written by [Zubaydah] before his capture, in which [Zubaydah] recounts detailed information about his activities and plans. It also included a propaganda video recorded by Petitioner before his capture in which Petitioner appears on camera expressing his solidarity with Usama Bin Ladin and al-Qaida. The factual return does not rely on any statements made by Petitioner after his capture.

[snip]

Additional searches also would not be likely to produce significant additional information that would demonstrate that Petitioner’s detention is unlawful, especially given that a large part ofthe Government’s case for detaining Petitioner is drawn from diaries and a propaganda video that [redacted].

Read more →

Elena Kagan and Maher Arar

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Remember how I suggested one of the bright sides of Elena Kagen’s nomination to SCOTUS would make Republican heads explode when they realize Hamdan lawyer Neal Katyal may be Acting Solicitor General?

Well, keep your eye out for splattered fearmonger brains, because Katyal just signed a document as the Acting Solicitor General.

Though perhaps their heads won’t explode.

Because, as Lyle Denniston points out, Katyal’s assumption of the Acting role here significantly diminishes Maher Arar’s chances of getting his suit against the federal government for his rendition to Syria and torture heard by the Supreme Court.

The Supreme Court has not yet scheduled Arar’s case for its initial examination.  The Justices are expected to do so, however, before the current Term ends in late June.  Justice Sonia Sotomayor, who as a Second Circuit judge had taken part in the lower court’s en banc hearing (but not its decision) has not yet indicated whether she would take part in the case as it proceeds in the Supreme Court.  So far, the Court has not issued any orders in the case that would show whether she had opted to take part.  Her recusal, however, appears likely.

If the Court were to grant review of the case, it would not be heard and decided until the next Term, starting Oct. 4.  Justice John Paul Stevens will no longer be on the Court then, and Kagan, if approved by the Senate, could be on the bench by then.

The Court’s changing membership, and the prospect that Justice Sotomayor would not participate in the Arar case, might not only have an impact on how the Court would rule if it took on the case, but may well influence whether it is willing to grant review at all.   If, as expected, the case is put to an initial vote this Term on the question of review, the Justices could be deterred from voting to grant because of the possibility of a 4-4 split were the case to be decided. assuming Sotomayor’s recusal.  (Justice Stevens is expected to be on hand for that initial vote.)

If the case were granted, the question would arise whether a new Justice Kagan (assuming Senate confirmation) would take part in the decision.  Although she did not sign the U.S. brief filed Wednesday, it seems highly likely that she had participated in internal discussions of the position the government would take in that brief, and thus might feel compelled to disqualify herself from its consideration by the Court.  That would raise the prospect of a 4-3 split, with the Court’s four most conservative Justices in the majority.  That is a prospect that perhaps could lead those four to vote for review, but could lead the Court’s more liberal Justices to refrain from supporting review.  (Both a 4-4 split, without Sotomayor, and a 4-3 split, without Sotomayor and Kagan, would probably result only if Justice Anthony M. Kennedy declined to side with his more conservative colleagues and voted with the more liberal Justices.)

This elaborates on a point that Michael Isikoff already wrote about–the way in which Kagan’s nomination and probable confirmation increases the chances that SCOTUS will back Bush and Obama Administration policies on counterterrorism.

Whatever her merits as the next Supreme Court justice, Elena Kagan’s selection provides a hidden benefit for President Obama’s national-security team: it significantly boosts its chances of prevailing in controversial claims to the court involving the war on terrorism.

The reason: Kagan will inevitably have to recuse herself from an array of cases where she has already signed off on positions staked out by the Obama administration relating to the detention of terror suspects and the reach of executive power. As a result, the seat occupied by Justice John Paul Stevens—the most forceful advocate on the court for curbing presidential power—will be replaced by a justice who, on some major cases over the next few years, won’t be voting at all.

“If you are litigating on behalf of Bagram detainees, the skies just got a lot darker today,” said Ben Wittes, a legal-affairs analyst at the Brookings Institution.

Now, there is an exception to this premise: those cases coming out of the 9th Circuit (which might include the Jeppesen suit, the al-Haramain case, and the Padilla-Yoo suit). If the 9th circuit rules in favor of the plaintiffs in any of these cases, and Kagan’s likely recusal were to create a tie in SCOTUS (assuming Kennedy voted with the liberal judges, which might be even more likely for cases coming through the 9th), that would leave the 9th circuit decision intact.

Nevertheless, none of that is going to help Maher Arar obtain some kind of justice for his kidnapping and torture at the hands of Americans.

Oh, and on whether or not the fearmongers’ heads will explode at Katyal’s involvement? The brief signed by Katyal contends that the torture of Arar is incidental to this suit.

This case does not concern the propriety of torture or whether it should be “countenance[d]” by the courts. Pet. 14. 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. 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; cf. Exec. Order No. 13,491, § 3, 74 Fed. Reg. 4894 (Jan. 22, 2009) (directing that individuals detained during armed conflict “shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture)).”

I’m particularly bemused by Katyal’s reliance on Obama’s repudiation of torture. I realize that Obama’s repudiation is somewhat more credible than the many times that Bush claimed we did not torture (though less and less so of late). But it would seem particularly relevant that even while Bush was proclaiming his opposition to torture, detainees in our custody and held overseas at our behest were being tortured during precisely the same time period that Arar was rendered to be tortured in Syria.

Nevertheless, Hamdan attorney and now Acting Solicitor General Neal Katyal says that the issue is not Arar’s torture, but narrow questions of whether Arar can even ask for some relief in the US Courts.

DOD’s Latest Black Site

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Fresh off of the ICRC’s confirmation that DOD has a black site in Bagram, Marc Ambinder has a long piece on it, describing it as run by part of the DIA, the Defense Counterintelligence and Human Intelligence Center, and downplaying, somewhat, what its use of Appendix M might mean. For example, he describes the Appendix to cover just short bouts of sleep deprivation and some sensory deprivation.

However, under secret authorization, the DIA interrogators use methods detailed in an appendix to the Field Manual, Appendix M, which spells out “restricted” interrogation techniques.

Under certain circumstances, interrogators can deprive prisoners of sleep (four hours at a time, for up to 30 days), to confuse their senses, and to keep them separate from the rest of the prison population. The Red Cross is now notified if the captives are kept at the facility for longer than two weeks.

When interrogators are using Appendix M measures, the Undersecretary of Defense for Intelligence, Gen.James Clapper (Ret.) is the man on the hook.

I think Ambinder has just not clearly stated the sleep deprivation restrictions (which require 4 hours of sleep in a 24-hour period, but which would therefore allow for 40 hour periods of consecutive sleep deprivation). And the limits in Appendix M make it clear that environmental manipulation (with noise, heat, cold, or even water) is still permitted, just not excessive amounts of it.

Care should be taken to protect the detainee from exposure (in accordance with all appropriate standards addressing excessive or inadequate environmental conditions) to—

− Excessive noise.

− Excessive dampness.

− Excessive or inadequate heat, light, or ventilation.

− Inadequate bedding and blankets.

− Interrogation activity leadership will periodically monitor the application of this technique.

Use of separation must not preclude the detainee getting four hours of continuous sleep every 24 hours.

Oversight should account for moving a detainee from one environment to another (thus a different location) or arrangements to modify the environment within the same location in accordance with the approved interrogation plan.

Which would be utterly consistent with BBC’s report that detainees there were subject to cold cells, constant light, and sleep deprivation.

There are a lot of interesting details in Marc’s piece. But perhaps the most amusing is the Orwellian non-denial denial from DOD’s spokesperson, Brian Whitman:

“DoD does operate some temporary screening detention facilities which are classified to preserve operational security; however, both the [Red Cross] and the host nation have knowledge of these facilities,” said Bryan Whitman, a Pentagon spokesperson. Read more →