The Torture Memo Obama Never Rescinded

Nearly a year ago, I asked If Obama Withdrew the Yoo, Bradbury Torture Memos, What Goverment Opinion Now Covers The AFM and Appendix M? The question has direct relevance today, because the Army Field Manual on interrogation (FM 2-22.3) and its Appendix M governs current interrogation policy at Guantanamo, where a major hunger strike of over 100 detainees has paralyzed operations. Detainees are protesting the hopelessness of indefinite detention, and the harassment they must endure, including searches of their holy book, the Koran.

This article answers the question I asked earlier. It documents the fact the Obama administration never rescinded a Bush-era memo on the use of controversial interrogation tactics for use by the U.S. military. The memo concerned concerned "restricted" techniques to be included in the 2006 revision of the Army Field Manual.  As a result, today torture and abuse remain a part of U.S. military interrogation doctrine.

The April 13, 2006 memo was written by Stephen Bradbury, who was also author of two 2005 memos on the CIA torture-interrogation program that were subsequently withdrawn.

According to LTC Todd Breasseale in the Office of the Assistant Secretary of Defense (Public Affairs), Obama's January 2009 Executive Order EO 13491, "Ensuring Lawful Interrogation," widely understood and cited as voiding the Bush-era Office of Legal Counsel torture memos, "did not cancel Mr. Bradbury's legal review" of a rewritten Army Field Manual and its controversial Appendix M.

The latter, with its provisions for use of isolation, sleep deprivation, and forms of sensory deprivation, has been denounced as torture or abuse by a number of human rights and legal groups (see here and here, for example).

LTC Breasseale explained in an email response to my query last year:

Executive Order (EO) 13491 did not withdraw "'All executive directives, orders, and regulations... from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals.'" It revoked all executive directives, orders, and regulations that were inconsistent with EO 13491, as determined by the Attorney General.... [bold emphasis added]

One last point - you seem suggest below that EO 13491 somehow cancelled Steven Bradbury's legal review of the FM. EO 13491 did not cancel Mr. Bradbury's legal review of the FM."

When I then asked the Department of Justice to confirm what Breasseale had said for a story on the Bradbury memo, spokesman Dean Boyd wrote to tell me, "We have no comment for your story." The fact Boyd did not object to Breasseale's statement seems to validate the DoD spokesman's statement.

Breasseale also described DoD's view that both the current AFM and Appendix M were "not inconsistent with EO 13491," which "expressly prohibits subjecting any individual in the custody of the U.S. Government to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the FM. In addition, the Detainee Treatment Act of 2005 expressly prohibits subjecting any individual in the custody of the U.S. Department of Defense to any treatment or technique of interrogation that is not authorized by and listed in the FM. In short, both the President and the Congress have determined that the interrogation techniques listed in the FM are lawful," Breasseale said.

But just how "lawful" were these interrogation techniques in the new AFM and Appendix M? A look at the history of their development belies DoD's assurances.

Double-talk on Interrogation Executive Order

It is somewhat understandable that most people believe President Obama cancelled all the Bush-era torture memos by executive order soon after taking office. The following is from the January 22, 2009 background briefing on the subject by the White House (emphases added):

Executive Order revokes Executive Order 13440 that interpreted Common Article 3 of the Geneva Conventions. It requires that all interrogations of detainees in armed conflict, by any government agency, follow the Army Field Manual interrogation guidelines. The Order also prohibits reliance on any Department of Justice or other legal advice concerning interrogation that was issued between September 11, 2001 and January 20, 2009. [italics added for emphasis]

But the blanket prohibition on reliance on "any" DoJ advice regarding interrogation is not what Obama's Executive Order stated. EO 13491 states (emphases added):

Section 1.  Revocation.  Executive Order 13440 of July 20, 2007, is revoked.  All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order.  Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order.  Upon request, the Attorney General shall provide guidance about which directives, orders, and regulations are inconsistent with this order.

So this is not a blanket but a conditional prohibition, with a determination on what will be revoked dependent upon advice from the Attorney General. Eric Holder is President Obama's attorney general.

While the famous torture memos written by John Yoo, Jay Bybee, Stephen Bradbury and others were revoked, one of Bradbury's memorandums was not revoked. This was the memo that authorized the rewritten Army Field Manual on interrogation and its Appendix M.

History of the Bradbury Memo on Appendix M

In April 2006, Stephen Bradbury, who wrote the 2005 torture memos that replaced earlier Office of Legal Counsel approvals for "enhanced interrogation" by John Yoo and Jay Bybee, signed off in a "Memorandum for the Record" on interrogation techniques in then soon-to-be-published new edition of the Army Field Manual guidelines on human intelligence gathering. The conclusions from Bradbury's analysis were sent by letter to Department of Defense (DoD) General Counsel William Haynes on the same date as the memo was filed.

The previous OLC approvals of DoD interrogation methods had a more confusing background than did even those for the CIA. In March 2003, the Department of Justice (DoJ) had released a memo approving various torture techniques for DoD. The memo was written by John Yoo. But by December 2003, OLC chief Jack Goldsmith had said the 2003 Yoo memo should be rescinded as too flawed. Yet it appears it was not finally withdrawn until June 2004. The entire narrative remains murky, as explained to the best of our current knowledge by Marcy Wheeler in an article a few years back.

It appears that OLC thought it had covered itself on approval of DoD techniques by referencing a briefing by Associate Deputy Attorney General Patrick Philbin given to the House Select Committee on Intelligence on July 14, 2004. Certainly by the time Bradbury was writing his memo signing off on Appendix M and the new AFM, he referenced the Philbin testimony as evidence that the DoD techniques did not amount to torture.

While Bradbury did not indicate when the AFM underwent revision, a major revision was already being circulated for comment by the JAG corps as early as summer 2004. It's drafting, speculatively, was a reaction to the slow-motion withdrawal of the March 2003 Yoo memo.

For its part, the Philbin testimony noted that 17 of the 24 DoD techniques previously approved by Secretary of Defense Donald Rumsfeld had been in use for some years, and that only seven of the 24 techniques were "new" and in question. They were: 1) placing detainee in an "les than comfortable environment"; 2) "altering his diet"; 3) changes in environment to cause "moderate discomfort", such as temperature changes; 4) adjusting the sleep cycle, "for example by requiring him to sleep days instead of nights, but without depriving him of sleep"; 5) convincing the detainee he is held by a country other than the U.S. ("False Flag"); 6) physical isolation, no longer than 30 days; and 7) "Mutt and Jeff", or the good cop/bad cop routine.

In his testimony, Philbin essentially reiterated that under current U.S. law and judicial precedents, none of these techniques amounted to torture. In his AFM/Appendix M memo, Bradbury turned to the question of whether the techniques proposed in Appendix M violated laws against cruel, inhumane, and degrading treatment, laws rooted in the UN Convention Against Torture treaty signed by the United States, and reiterated at that time in the 2005 Detainee Treatment Act.

According to Bradbury, the Philbin testimony had taken the torture issue off the table. But there were differences between what would be in Appendix M and the techniques listed by Philbin, though Bradbury falsely minimized them.

"Although the restricted techniques described in Appendix M differ in certain minor respects from those submitted in the Philbin testimony," Bradbury wrote, "we do not think those differences are sufficient to alter the conclusions previously reached that the techniques comport with the general criminal statutes, the prohibition on torture, and the War Crimes Act."

Many of the descriptions of the restricted techniques are censored in the released Bradbury AFM/Appendix M memo. But Bradbury did understand and made a point of stating that some of the techniques wouldn't pass muster "if they were permitted in interrogation of all DoD detainees, regardless of their combatant status and without regard to the level of intelligence they might possess" [italics in original]. Bradbury also would not verify the Appendix M techniques would be lawful "if used in the criminal justice process as a means of obtaining information about ordinary crimes."

While Appendix M has "Mutt and Jeff" and "False Flag" techniques, it also includes, according to Bradbury, three "Adjustment" techniques "designed to change the detainee's environment," though not supposedly in a torturous fashion.

"Separation"

Bradbury also discusses the "Separation" technique, admitting it amounts to isolation "not to exceed 30 days without express authorization from a senior military officer." Philbin had not discussed extensions to isolation beyond 30 days, but Bradbury doesn't mention that. He cites the senior officer authorization, and the fact that detainees would "continually be monitored by medical personnel" as safeguards against harm to the detainee. It is clear, too, that such isolation is not merely for safety purposes, as Bradbury notes "the important role isolation can play in conditioning detainees for interrogation."

Bradbury never mentions that unlike the Philbin memo authorizations, the AFM was approving use of limited sleep deprivation (no more than 4 hours of sleep allowed per day for up to 30 days, with extensions allowed by senior officers) and sensory deprivation (use of black-out goggles in so-called "field expedient separation").

In his memo, Bradbury explained that DoJ/OLC had "not been asked to assess the consistency of those [Appendix M] techniques with the requirements of the Uniform Code of Military Justice" [UCMJ]. Hence, Bradbury said he assumed that DoD had "determined that the authorized use of the techniques, consistent with the applicable safeguards, accords with" the requirements of the UCMJ.

When asked if DoD made such a legal determination, LTC Breasseale said the new AFM "was scrutinized via a very thorough legal review at the highest level in the Pentagon prior to publication, so it is absolutely inconceivable for such a review not to have considered all legal aspects of the manual, including its adherence to the UCMJ." He was not more specific about who specifically reviewed it, nor was there a reference to any particular document citing this adherence. Breasseale did note the manual has had no changes made to it since its publication in September 2006.

One Sentence Reviews Bulk of Army Field Manual

One of the most egregious aspects of Bradbury's memo occur right at its very beginning. There, he states that the differences between the new AFM and its previous 1992 version (FM 34-52) amount to only "modest revisions" that are "fully consistent with... historical practice and thus do not require us to undertake a more detailed analysis of these issues."

Thus in one sentence does Bradbury dismiss a number of significant changes to protections and policies of the old field manual. The sweep of his dismissal is breathtaking.

In fact, changes to the new AFM included significant revisions to how a controversial technique called "Fear Up" was used. In the new manual, interrogators were now allowed to produce "new phobias" for exploitation in the prisoner, something forbidden previously. Using phobias to produce stress and fear in detainees was a "Category II" interrogation technique in a list of techniques proposed to DoD based on SERE counter-resistance interrogation school methods.

The main text of the new AFM also included the excision of prohibitions against sleep deprivation and stress positions. The former was necessary to allow the use of sleep deprivation in Appendix M.

Former military interrogator Matthew Alexander wrote in a 2010 New York Times op-ed about the abuse inherent in the changes on sleep allowed in Appendix M:

The manual also allows limiting detainees to just four hours of sleep in 24 hours. Let’s face it: extended captivity with only four hours of sleep a night (consider detainees at Guantánamo Bay who have been held for seven years) does not meet the minimum standard of humane treatment, either in terms of American law or simple human decency.

And if this weren’t enough, some interrogators feel the manual’s language gives them a loophole that allows them to give a detainee four hours of sleep and then conduct a 20-hour interrogation, after which they can “reset” the clock and begin another 20-hour interrogation followed by four hours of sleep. This is inconsistent with the spirit of the reforms, which was to prevent “monstering” — extended interrogation sessions lasting more than 20 hours.

Finally, there were changes in the language concerning the drugging of detainees, as I have discussed in detail elsewhere. Use of drugs on detainees was not previously prohibited in the earlier AFM, citing language disallowing use of any drugs that produced "chemically induced psychosis." In the new AFM, drugs could be used as long as they did not "induce lasting or permanent mental alteration or damage," a lower standard, requiring evidence of significant "lasting or permanent" harm.

Our understanding of exactly how DoD has used drugs on detainees is still evolving (see DoD's IG report and analyses of it here and here). As a matter of reference, according to a September 2004 Congressional Research Service report on "Lawfulness of Interrogation Techniques under the Geneva Conventions," even the allowance of drugs in the 1990s version of the AFM was a change from earlier doctrine, which prohibited the use of drugs entirely for interrogations.

According to an article cited by CRS, "any attempt to extract information from an unwilling prisoner of war by the use of chemicals, drugs, physiological or psychological devices, which impair or deprive the prisoner of his free will without being in his interest, such as a bonafide medical treatment, will be deemed a violation of Articles 13 and 17 of the [1949 Geneva POW] Convention."

Most recently, The Constitution Project's Task Force on Detainee Treatment, in a 560-page report documenting the use of torture by U.S. government agencies, noted:

The Army Field Manual on Interrogation should be amended so as to eliminate Appendix M, which permits the use of abusive tactics and to allow for the legitimate use of noncoercive separation. Language prohibiting the use of stress positions and abnormal sleep manipulation that was removed in 2006 should be restored.

Part of the problem in tackling the issue of torture and interrogation abuse in the current Army Field Manual concerns the misrepresentations concerning the steps actually taken in rewriting that document, as well as a myth that has grown up around Obama's Jan. 2009 Executive Order on interrogations. With the recent admission by DoD that the Bradbury Appendix M memo was never rescinded by Attorney General Eric Holder and President Barack Obama, we are closer to the day when such inhumane treatment is banished from official U.S. military intelligence doctrine.

Cross-posted at The Dissenter/FDL