ACLU Calls for Independent Prosecutor After Senate Report on SERE Torture

I wish I'd seen this press release by the ACLU yesterday, because I would have incorporated it into my coverage of the release of the Senate Armed Services Committee Report -- an Inquiry into the Treatment of Detainees in U.S. Custody. This is especially so as the ACLU notes the same anomaly in the torture timeline that I do:

“The Senate Armed Services Committee’s conclusions confirmed what we have long known – the use of torture by the United States was not simply unrelated acts carried out by a few low-level officials, but rather a deliberate and systemic program established by our government’s highest ranking officials,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “The ACLU applauds Chairman Levin and Ranking Member McCain for initiating this vital inquiry. The American people need to know if crimes were committed in the authorization and ordering of torture and abuse. Those individuals must be held responsible for the United States to be able to move forward and restore the rule of law"....

“The committee report makes clear the role of top White House and Defense Department officials in authorizing torture and abuse,” added Christopher Anders, ACLU Senior Legislative Counsel. “It also includes a startling new fact, which is that a top Defense Department official was inquiring into methods of torture and abuse more than a month before President Bush ordered that the Geneva Conventions would not apply to the detainees. There is now a whole new question that an independent prosecutor should investigate on whether the president’s order taking away Geneva Conventions protections was part of a scheme to engage in illegal torture that was already being explored.” [Emphasis added]

The inquiry by a top DoD official "more than a month" before Bush scrapped Geneva for this "war on terror" prisoners can only be Richard Shiffrin's approach to JPRA in December 2001.

From my coverage of the Senate Armed Services Committee hearings last September:

But the one document produced from the December 2001 contact -- a fax cover sheet from the Pentagon's Joint Personnel Recovery Agency (JPRA), sent from "Lt. Col. Dan Baumgartner" to "Mr. Richard Shiffrin," who worked for Haynes's in Rumsfeld's DoD General Council office -- introduces a theme of aggressive courting by JPRA/SERE personnel to take on the interrogations/exploitation task:

Mr. Shiffrin --
Here's our spin on exploitation. If you need experts to facilitate this process, we stand ready to assist. There are not many in DoD outside of JPRA that have the level of expertise we do in exploitation and how to resist it.

Really, my provenance on this issue goes back to last June, when I noticed something very odd in Baumgartner's statement to the committee:

While Senator Levin gives a fairly thorough presentation of how SERE techniques migrated to Guantanamo, including discussions and meetings and when they took place, and descriptions (at least in the documents released by the committee) of what kind of techniques were being taught, one date is inexplicably left out which Lt. Col. Baumgarten gave in his testimony. Levin concentrates upon the late July 2002 request by Richard Shiffrin, a Deputy General Counsel in the Department of Defense, for information on SERE techniques and their effects upon prisoners....

But Baumgartner's own opening statement gives a more nuanced, different story. From his statement, as published online (bold emphasis added):

My recollection of my first communication with OGC relative to techniques was with Mr. Richard Shiffrin in July 2002. However, during my two interviews with Committee staff members last year I was shown documents that indicated I had some communication with Mr. Shiffrin related to this matter in approximately December 2001. Although I do not specifically recall Mr. Shiffrin’s request to the JPRA for information in late 2001, my previous interviews with Committee staff members and review of documents connected with Mr. Shiffrin’s December 2001 request have confirmed to me the JPRA, at that time, provided Mr. Shiffrin information related to this Committee’s inquiry.

Now something is very strange here, as Levin's own staff appear to have documents indicating DoD was asking about SERE techniques in December 2001, eight months before the July 2002 request everyone else is concentrating on. Why this gap? My guess is that it would take us even closer to the Oval Office than Levin or anyone else wants to go at this point. Where are these documents on the December 2001 request? Why did no one on the committee question Baumgarten about this issue during the hearings?

But by the second round of committee hearings, Sen. Levin had put the December 2001 request back into the timeline. I'd like to think I had something to do with that, but who knows? Almost no other commenter, made this point at the time, despite my public criticism of the press and blog coverage, the one exception being a front page article by smintheus at Daily Kos. Later, I confronted Sen. Levin himself with these questions during a "live blog" at FDL (thanks EW!). In any case, the cat is officially out of the bag now, and the issue has been joined by the ACLU, with growing support from other organizations soon to follow, I expect.

I'm very heartened to see this important element of the torture timeline picked up at last by one of our premier legal human rights and civil liberties organizations. It gives me hope that there will be sufficient political will in the society to take on the tremendous task of prosecuting the criminals in the Bush Administration and the military/CIA who had the arrogance to believe they could engage in torture with impunity by gaming the system and twisting all concept of law.

We all should support the ACLU's call for an independent prosecutor to investigate and then bring the appropriate charges.

Bravo, ACLU!