Fredman's Mea Culpa, the Army Field Manual, and the Istanbul Protocol

Either Jonathan Fredman or someone close to him or the CIA has leaked to The Washington Times a letter Fredman wrote to the Senate Armed Services Committee last Nov. 18, in response to SASC allegations based on a set of minutes the Committee produced as part of its investigation of Department of Defense treatment of prisoners. The minutes, which I have previously transcribed (see here for original document), cover an October 2, 2002 meeting of Guantanamo interrogation staff, psychologists, Defense Intelligence Agency, CIA, and other higher-up officers, and concerned the use of "harsh" interrogation techniques being considered at Guantanamo.

The SASC report, which concentrated on DoD-related misconduct, particularly as related to the use of an "offensive" program of interrogation and torture by SERE/JPRA personnel, also concluded the CIA, in the person of Mr. Fredman, who was chief legal counsel for the Counter-Terrorism Center at the time, gave his "advice to GTMO on applicable legal obligations was similar to the analysis of those obligations in OLC's first Bybee memo." (SERE refers to the Survival, Evasion, Resistance, Escape program, and JPRA to Joint Personnel Recovery Agency, SERE's parent agency at DoD.)

According to the meeting minutes, Mr. Fredman said that ''the language of the statutes is written vaguely ... Severe physical pain described as anything causing permanent damage to major organs or body parts. Mental torture [is] described as anything leading to permanent, profound damage to the senses or personality." Mr. Fredman said simply, "It is basically subject to perception. If the detainee dies you're doing it wrong."

Now, according to the Wash Times story (emphasis added):

In his six-page November letter, Mr. Fredman says the writer of the 2002 memo [the minutes] misconstrued enough of his points that the memo is unreliable....

Mr. Fredman said that he warned officials that the penalties for violating the U.S. anti-torture statute were severe and included the death penalty. He also emphasized that techniques in the Army Field Manual - which is currently in use - still may violate a nonbinding U.N. document on torture.

"I noted that the Istanbul Protocol of 1999 provides that even 'exposure to ambiguous situations or contradictory messages,' the use of 'solitary confinement,' and the use of coercion to induce an individual 'to betray someone placing them at risk of harm' all constitute torture. Under the Istanbul Protocol, therefore, it is not clear that the techniques described in the U.S. Army Field Manual on interrogation would be permitted," he wrote in his 2008 memo.

But the person taking notes at the 2002 meeting at Guantanamo Bay recorded Mr. Fredman's comment at the time as: "An example of a different perspective on torture is Turkey. In Turkey, they say that interrogation at all, or anything you do to[sic] that results in the subject betraying his comrades is torture."

Now, this all seems to me like more of the cover-your-ass game that is shifting into high gear in Washington, as the torture scandal gains more momentum, and more shocking details and documents are yet to be revealed. There is much more in the minutes that Fredman apparently disputes, we don't have the full letter in which we could assess his full argument. But from the WT story, it seems he defends CIA actions as going up to the limits of legality, with that limit set by Department of Justice attorneys.

I wonder if Fredman disputes this, from the Gitmo meeting minutes (emphasis added):

Fredman: The Torture Convention prohibits torture and cruel, inhumane and degrading treatment. The US did not sign up on the second part, because of the 8th amendment (cruel and unusual punishment), but we did sign the part about torture. This gives us more license to use more controversial techniques.

Here, Fredman is speaking of the fact that the Convention Against Torture's prohibition against torture did not receive the same legal reservation from the U.S. when CAT was signed and ratified. By tying a lesser form of torture, called "cruel, inhumane or degrading treatment," to U.S. Constitutional standards, as interpreted by domestic judicial precedent, the government tried to dilute the impact of CAT's prohibitions.

As an example, waterboarding and fake executions are "torture," while certain types of sleep deprivation and solitary confinement are, arguably, "cruel, inhumane, or degrading treatment," or arguably not, depending on what legal arguments and decisions some government lawyers can muster.

It's at this point that Fredman, in his Nov. 18, 2008 letter, makes his rather curious statement about the Army Field Manual and the Istanbul Protocol. As the Wikipedia article on the Protocol makes clear, it is not a treaty or a binding document, but "is intended to serve as a set of international guidelines for the assessment of persons who allege torture and ill treatment, for investigating cases of alleged torture, and for reporting such findings to the judiciary and any other investigative body." Besides guiding medical and psychological experts in the assessment torture victims, and "produce high-quality medical reports for submission to judicial and administrative bodies," it assists legal experts, per the International Rehabilitation Council for Torture Victims (IRCT), to:

• Obtain relevant, accurate and reliable statements from torture victims and witnesses so as to enable the use of such statements in legal proceedings against perpetrators
• Recover and preserve evidence related to the alleged torture
• Determine how, when and where the alleged torture occurred

It seems the CIA/CTC legal counsel is concerned about the gathering of evidence, and how it might be used someday in an international setting, if not in a U.S. court. I can't help but be satisfied on some level that Fredman has brought the Army Field Manual (AFM) issue back into focus, because the AFM has been the subject of some scrutiny by both Physicians for Human Rights and Center for Constitutional Rights (CCR), both of which found that it included interrogation techniques that violated domestic and international law.

I've made the AFM a focus of articles I've written, going back to October 2006. In January of this year, I published two articles at AlterNet (here and here) that focused on the use of torture in the AFM. Bmaz over at Emptywheel's site picked up the issue later in January, as did CCR. Since then, despite the interest of a few journalists, the issue has dropped out of view, and this despite the fact that President Obama made the Army Field Manual the centerpiece of his overhaul of interrogation policy earlier this year.

So, if Jonathan Fredman is worried about the applicability of interrogation procedures in the Army Field Manual, even if he mentions it as part of a mea culpa for CIA interrogation policies and cover-up of torture, published in The Washington Times, no less, then I'll take it as corroboration for what I and some others have been saying for some time.

And what are the procedures that has Fredman so concerned? They are concentrated mostly, though not entirely, in the manual's Appendix M, which describes a special interrogation "approach" (really a group of techniques) entitled "Separation." From my article on the AFM earlier this year:

What kind of procedures, which the manual avers cannot be used on regular prisoners of war (who are covered by the Geneva Convention Relative to the Treatment of Prisoners of War), make up this special interrogation "technique," separation? In fact, it includes the following: solitary confinement, perceptual or sensory deprivation, sleep deprivation, the induction of fear and hopelessness, and the likely use of sensory overload, temperature or environmental manipulation, and any number of other techniques permitted elsewhere in the AFM, such as "Emotional Pride Down." As at Guantanamo and at prisons in Iraq and Afghanistan, a "multidisciplinary" team implements the program, including a behavioral science consultant (likely a psychologist).

Since writing my original article, I also discovered that this current version (2006) of the AFM, supervised by Rumsfeld right-hand man, Stephen Cambone, changed the wording around the use of drugs in interrogations to prohibit "drugs that may induce lasting or permanent mental alteration or damage." Previously, the former AFM had prohibited "chemically induced psychosis." So, unless that psychosis is "lasting or permanent mental alteration or damage," it's presumably allowed in the current AFM. Any thoughts on that, President Obama?

Those interested can go back and read the section of John Yoo's first Bybee memo of Aug. 1, 2002 (not the OLC memo released a few weeks ago) that concerns the use of "mind-altering drugs." Oddly, Yoo appears to present an opinion that, while disallowing only the use of drugs that "penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality," and are calculated to that end -- a fairly stringent standard -- the AFM's allowance for use of drugs in interrogations, anything short of "lasting or permanent mental alteration or damage," seems to be even more permissive than even Yoo's opinion allowed.

Meanwhile, the Pentagon is presumably finishing up their Inspector General investigation on the drugging of detainees in DoD custody. However, it's not known if, when complete, the report will even be made public. A DoD member connected to that investigation did not return my request for more information.

Whether it's the drugs, the abusive interrogation techniques in Appendix M, or a number of others issues, Fredman appears concerned about keeping his own and the Agency's image clean and legally above water. I don't know how he can do that, but the play is partly to public and congressional opinion, and if he wants to throw the Army Field Manual as a sop to the anti-torture crowd, what does he care? That was always DoD and Rumsfeld's child, and with the drumbeats of scandal beating down upon JPRA, SERE and other DoD officialdom, CIA is hoping to keep out of the limelight, and maintain its monopoly of special treatment when it comes to use of interrogation techniques.

As Fredman is reported to have said at that October 2, 2002 meeting, "The CIA is not held to the same rules as the military." I'm sure CIA wants to keep it that way, but no one in Washington is completely in control of the shaping of the torture narrative anymore, and the scandal is far from playing itself out. It may even be just beginning.

Also posted at Firedoglake