Torture

If Obama Withdrew Yoo, Bradbury Torture Memos, What Goverment Opinion Now Covers The AFM And Appendix M?

Former Office of Legal Counsel Acting Chief Steven Bradbury

An article in the July-Sept. 2004 edition of the journal Military Intelligence (PDF) sheds further light on the origins of the Army Field Manual (AFM) on interrogation, FM 2-22.3, HUMINT Collector Operations (PDF), that became operational in September 2006. The AFM became the de jure standard for government interrogations in the “Global War on Terror” as a matter of policy with the passing of the Detainee Treatment Act of 2005 (DTA). Except, in 2005, the AFM was an earlier version.

By September 2006, the newer version included less restrictive controls on a number of questionable interrogation techniques, and had seriously lightened the restriction on the use of drugs in interrogations. It also included an annex to the manual, Appendix M, that was meant strictly for detainees not covered by Geneva POW protections, i.e., the detainees at Guantanamo and elsewhere. Appendix M allowed for the use of isolation, sleep deprivation, sensory deprivation (as a “field expedient” method), and anticipated at least some use of environmental and diet “manipulations.”

But back in Summer 2004, Command Sergeant Major Lawrence J. Haubrich, U.S. Army Military Intelligence Corps, writing for the journal Military Intelligence (PDF) about military ethics in the aftermath of the Abu Ghraib scandal, noted that the new AFM had already been vetted by Judge Advocate General corps’ [JAG] legal officials.

The DA [Dept. of the Army] Office of the JAG and JAG School reviewed each draft of FM 2-22.3, HUMINT Collector Operations, and each draft has been (and still is) in compliance with all Geneva Conventions, international agreements, and U.S. law. Additionally, the manual clarifies the responsibilities of HUMINT collectors and clearly delineates between HUMINT collection and other activities associated with internment operations. Finally, the manual now includes HUMINT collection techniques like strategic debriefing and elicitation as a result of the recent HUMINT and Counterintelligence Integrated Concept Team and lessons learned.

We can’t, of course, know what drafts the JAG officials had seen in 2004. We don’t know, for instance, whether or to what degree the techniques that ended up in the final document’s Appendix M were then included in the earlier drafts. The fact that the manual went through numerous iterations was noted in a couple of blog posts by Marcy Wheeler, who noted the existence of a little examined Bush-era Office of Legal Counsel memorandum (PDF) on the AFM and its Appendix M.

“The Department of Defense (“DOD”) has asked us to review for form and legality the revised drafts of the Army Field Manua1 2-22.3 (“Human Intelligence Collection Operations”), Appendix M of FM2-22.3 (“Restricted Interrogations Techniques”), and the Policy Directive regarding DOD’s Detainee Program,” Acting Attorney General Stephen Bradbury wrote in an April 13, 2006 “Memorandum for the Files.” Naturally, Bradbury found that Appendix M was “consistent with the requirements of the law, in particular with the requirements of the Detainee Treatment Act of 2005…”

Wheeler noticed a couple of years ago, however, that the description of Appendix M in the Bradbury memorandum was not congruent with the version that was ultimately published.

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…. Even the title changed–from the plural “Restricted Interrogation Techniques” to the singular “Restricted Interrogation Technique–Separation”….

A couple of examples of some of the changes Wheeler pointed out (bold emphases in original):

Bradbury cites M-23 for language limiting the use of Appendix M only to DOD interrogators specially trained and certified to use these techniques; that language now appears in M-22, but the paragraph now authorizes properly trained contract interrogators and “non-DOD personnel” to use the techniques as well.

Bradbury cites M-21 for medical limits, including that “Detainees determined to be unfit for interrogation may not be interrogated” (note, this does not appear to be a direct citation from the appendix, but rather Bradbury’s summary of it); in the current Appendix, language on medical oversight appears in several places (M-16, M-20, M-23, M-24, M-30), but never includes an explicit restriction against using the techniques on an unfit detainee….

Then, just last August, Wheeler noted this in a legal opinion issued in the Donald Vance/Nathan Ertel lawsuit against Donald Rumsfeld for the torture they suffered when falsely held prisoners in Iraq:

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.

This is evidence of the likelihood that the changes to the AFM materially changed it from what the JAG officials vetted in 2004. Nevertheless, I don’t believe we have heard any protest or even a peep of protest from JAGs or other military legal sources over the AFM that was ultimately issued. The Bradbury memorandum itself is a deeply dishonest document, and relies heavily for its opinion on the earlier OLC memos by Yoo, Bybee, and Bradbury himself. In the memorandum, Bradbury cites the earlier OCL torture memos as having “previously concluded that techniques virtually identical to these [i.e., in Appendix M] are consistent with applicable U.S. legal obligations…”

He then refers readers to the July 14, 2004 testimony of Patrick F. Philbin before the House Select Committee on Intelligence (PDF). “There is no need to revisit those determinations here,” Bradbury wrote. But since the Obama administration withdrew by Executive Order (13491) “All executive directives, orders, and regulations… from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals,” where does that leave the legal assurances regarding Appendix M?

This question is of high importance as, even though numerous human rights organizations (Center for Constitutional Rights, Physicians for Human Rights, Amnesty International, Open Society Foundations, and others) have expressed grave misgivings about the abuse inherent in the current Army Field Manual instructions, the government, including key Democrats on the Intelligence and Armed Services committees, and the Obama administration itself, support the current AFM as the relevant and sufficient standard for all U.S. government military and CIA interrogations.

The inadequacy of the Bradbury memorandum in vetting “legal” techniques for interrogation, techniques said to be “Geneva compliant” is laughably belied by the fact that four of the six “restricted interrogation techniques” discussed by Bradbury are redacted in the declassified release of the memorandum. Truly, the government must think we can’t see what is right before our eyes.

Additionally, of the two techniques openly discussed — “Mutt and Jeff” (Good cop/Bad cop) and “False Flag — both were ultimately incorporated into the main text of the final AMF draft. Even though the other techniques were left unclassified in the final version, the government still censors the techniques Bradbury was describing in his 2006 memo.

In a particularly Bradburyian moment of bad conscience, or possibly only to cover his ass, the former top Bush lawyer remarks in a footnote, the “six restricted interrogation techniques” might not satisfy the DTA if used on “all DoD detainees” (italics in original). Even more: “Nor does our analysis suggest that these techniques would be lawful if used in the criminal justice process as a means of obtaining information about ordinary crimes.”

Hence we can see the result of the Bush-Gonzales-Yoo removal of the GWOT detainees from protected POW status soon after 9/11. Since Appendix M is still used in interrogations, we must conclude the Obama administration has never withdrawn the order that removed Al Qaeda/Taliban and associated prisoners from Geneva protections. Or has the administration has issued new opinions that have never been made public?

It must not matter to the Congressional oversight mavens, who have said not a peep about these issues, and continue to push the AFM and Appendix M. Nor does the proud JAG corps, who in some cases were known to protest the torture as it unfolded at Guantanamo, or the unfairness of the “Star Chamber” military commissions process, have any update I know of from their early stamp of approval given to the AFM.

One could not hope for much from a government that slaughtered two million Indochinese, and was never held accountable for that and many crimes that followed. It may be tilting at windmills to believe that the ongoing use of torture, even as one version of it is enshrined now in a formal military document, would become a matter of some social protest or media condemnation. This is a society and a nation totally adrift in a sea of moral nihilism when it comes to military and intelligence matters.

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor to Truthout and The Public Record, blogs about civil liberties and issues revolving around the US government’s torture program at The Dissenter. He can be reached at sfpsych at gmail dot com. Follow Jeff on Twitter: @Jeff_Kaye

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