Expose (Part 2) : Expanding the Investigation into SERE Torture

Originally posted at Firedoglake

The first installment of this three-part series on the origins of the Mitchell-Jessen torture program concentrated on the insufficiency of reducing our understanding of the spread of torture during the Bush administration to the interventions of just two men. This is essentially the way the story was presented in a 12 August New York Times article by Scott Shane, leaving the question unanswered: how did Mitchell and Jessen get involved in constructing an offensive torture program to begin with?

The documentary record demonstrates that Mitchell and Jessen were not alone in proposing that military survival and resistance (SERE) psychologists and trainers be used to lead interrogations of the flood of prisoners in the new "war on terror."

How could Mitchell and Jessen be seen as the prime proponents for the program when in December 2001, according to released materials in the Senate Armed Services Committee's report on prisoner abuse, the Chief of Staff of the Joint Personnel Recovery Agency (JPRA), Lt. Col. Dan Baumgartner, wrote to Richard Shiffrin, who worked for Jim Haynes in Don Rumsfeld's Office of Legal Counsel for the Defense Deparment:

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.

[JPRA is the umbrella program for the different SERE programs organized by the various military services.]

While the New York Times article makes almost no attempt to link the Mitchell-Jessen episode to the larger spread of torture throughout the U.S. armed forces, or to describe the actual role of the CIA in fostering it, Mitchell and Jessen's influence is assumed. It is no surprise, and in fact is pointed out by Mr. Shane, that a decision by Attorney General Eric Holder whether to pursue criminal charges for the torture program is pending, and that the CIA contract psychologists are in the crosshairs of such a potential investigation. The latter make uneasy game for the Obama administration's insistence that those who believed they were acting in good faith upon legal permissions will not be prosecuted. No doubt, Mitchell and Jessen will pursue just such a defense.

Washington Post Helps JPRA Cover Up Complicity in Torture Program

Originally posted at FireDogLake

A Washington Post article by Peter Finn and Joby Warrick has made a big splash, reporting that a memorandum from Joint Personnel Recovery Agency to DoD General Counsel in July 2002 warned that "torture" would produce "unreliable information."

However, we cannot conclude from this that JPRA was against the use of coercive interrogation. For one thing, as I will show, JPRA was an enthusiastic proponent of spreading SERE techniques into the operational realm. Second, even the caveats about the use of torture are supplemented by recommendations of interrogation techniques that amount at least to cruel, inhumane, and degrading treatment (outlawed by treaty and domestic law, as much as torture), if not torture itself.

One comes away from the Washington Post article with the impression it was the consequence of a planned leak, probably by JPRA or someone close to the Pentagon, seeking to cover up the JPRA's complicity in the torture program. For one thing, the revelations from the memo are not new; they were already revealed in the text of the recently released Senate Armed Service Committee report on detainee abuse. And then, consider the portion of the leaked memo, “Operational Issues Pertaining to the Use of Physical/Psychological Coercion in Interrogation," that the Washington Post did not bother to report.

CONCLUSION: The application of extreme physical and or psychological duress (torture) has some serious operational deficits, most notably, the potential to result in unreliable information. This is not to say that the manipulation of the subject's environment in an effort to dislocate their expectations and induce emotional responses is not effective. On the contrary, systematic manipulation of the subject's environment is likely to result in a subject that can be exploited for intelligence information and other national strategic concerns.

"Exploited" for not just "intelligence information," but "other national strategic concerns"? Hmmm... Perhaps this refers to the attempt to use torture to produce false confessions about supposed links between the perpetrators of 9/11 and Saddam Hussein.

In any case, JPRA, an organization whose supposed purpose is to be "the Department of Defense’s (DoD) executive agent for personnel recovery... responsible for coordinating and advancing joint personnel recovery capabilities," was deeply implicated as a primary actor in the implementation of the torture program. You wouldn't know this by reading the Washington Post article, which quotes former JPRA chief of staff, Daniel Baumgartner as saying "the agency 'sent a lot of cautionary notes' [to DoD] regarding harsh techniques.

"There is a difference between what we do in training and what the administration wanted the information for," he said a telephone interview yesterday. "What the administration decided to do or not to do was up to the guys dealing with offensive prisoner operations. . . . We train our own people for the worst possible outcome . . . and obviously the United States government does not torture its own people."

One could contrast this sanguine picture of a passive government bureaucracy meaning to do well with Lt. Col. Baumgartner's attachment of the JPRA document, Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees (undated), attached to the same memorandum Baumgartner sent to the Office of the Secretary of Defense General Counsel on July 26, 2002, which included the supposed warning memo published by the Washington Post.

In other JPRA materials, techniques designed to achieve these goals [i.e., "establish absolute control, induce dependence to meet needs, elicit compliance, shape cooperation"] include isolation or solitary confinement, induced physical weakness and exhaustion, degradation, conditioning, sensory deprivation, sensory overload, disruption of sleep and biorhythms, and manipulation of diet. Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees. [p. 9, footnote 56]

The Washington Post article failed to note that there were three attachments to the July 26 memo from JPRA to DoD General Counsel. One was the attachment posted by the Washington Post ("Operational Issues"), one was the Physical Pressures document just quoted. The third attachment was a memorandum written by SERE psychologist Jerald Ogrisseg, "Psychological Effects of Resistance Training."

I've written elsewhere on the Ogrisseg memo. In this work, he describes the statistics he gathered that demonstrated that SERE training was almost never harmful to its participants. That is not an accurate conclusion by Ogrisseg, and the published research using experiments on SERE trainees shows dramatic disruption of physiological processes by a majority of recruits undergoing SERE training. A study published in the June 2000 edition of Special Warfare noted:

In some cases, the changes noted among the trainees were greater than the changes noted in patients undergoing heart surgery....

Changes in testosterone levels were similarly remarkable: In some cases, testosterone dropped from normal levels to castration levels within eight hours.

The most salient aspect of the Ogrisseg paper lies in the fact that it ostensibly reported that waterboarding under SERE training conditions caused minimal long-term psychological effects. But the SASC report notes that Ogrisseg's report attributed that fact to "efforts the Air Force SERE program undertook to minimize the risk of temporary psychological effects of resistance training becoming long-term effects.... [mitigating] the risk of turning a "dramatic" experience into a "traumatic" experience.'"

It was Lt. Col. Baumgartner, so favorably quoted by the Washington Post, who forwarded all these memos to DoD, telling DoD's General Counsel:

"While there is not much empirical data on the long term effects of physical pressures used in SERE schools (which fall well short of causing 'grave psychological damage'), the psychological staff at the Air Force SERE school makes some interesting observations [] that suggest training techniques can be very effective in producing compliance while not causing any long term damage." Memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel... July 26, 2002

So much for all the warnings Baumgartner says JPRA made!

JPRA Creates Experimental Torture Lab at Guantanamo

Whatever caveats some at JPRA had about SERE methods, and belying the betrayal by Baumgarter in the Washington Post article, by late summer 2002, JPRA was actively soliciting its services again to DoD. For instance, there was this this September 9, 2003 email from Col. Randy Moulton, Commander of JPRA to Col. Mike Okita and a redacted addressee (possibly "Admiral Bird," whom the text of the email addresses). Note, this was sent approximately two months after the so-called warning by JPRA:

There is a strong synergy between the fundamentals of both missions (resistance training and interrogation). Both rely heavily on environmental conditions, captivity psychology, and situation dominance and control. While I think this probably lies within DHS [Defense Human Intelligence Service, part of DIA] responsibility lines, recent history (to include discussions with DHS, USSOCOM, CIA) shows that no DoD entity has a firm grasp on any comprehensive approach to strategic debriefing/interrogation. Our subject matter experts (and certain Service SERE psychologist) have the most knowledge and depth within DoD on the captivity environment and exploitation. I think that JPRA/JFCOM needs to keep involved for reasons of TTP [Tactics, Techniques, and Procedures]/development and information sharing.

While Moulton said JPRA was not interested in active participation in the interrogations themselves, he apparently saw JPRA's new mission as one of "advice, assistance and observation" to the interrogation program, i.e., JPRA would brain-trust the operation. Apparently, Lieutenant General Robert Wagner at USFJCOM thought JPRA was overstepping their charter, and Moulton emailed him back, noting that formally Wagner was correct. JPRA was aware of the dangers of "crossing the Rubicon into intel collection." Moulton continued:

However there will be a need to be engaged in a symbiotic relationship with whatever entity is identified to manage the debriefing/interrogation program.... There may be a compromise position (my gut choice) whereby we could provide/assist in oversight, training, analysis, research, and TTP/development, while leaving actual debriefing/interrogation to those already assigned the responsibility."

In other words, in many ways and from the very first contact between JPRA and the General Counsel of DoD in December 2001, JPRA tried to position itself as indispensable experts for the torture project being initiated by higher-ups in the Bush Administration. Attempts to paint JPRA as some kind of bureaucratic opponent of the drive towards harsher and harsher interrogation techniques simply does not fit the facts. The appearance of occasional warnings about the effects of torture reflect either a minority opinion within JPRA (a possibility), or a bureaucratic reflex of covering for oneself that is apparent throughout the discussions about implementing the JPRA/SERE program in an operational fashion.

At Guantanamo itself, JPRA/SERE techniques were integral in establishing an experimental regime of harsh interrogation, i.e., torture. JPRA and other Special Operations officers wanted to teach SERE methods to interrogators and the members of the Behavioral Science Consultation Teams (BSCTs), which included psychologists and psychiatrists attached to the intelligence task force.

According to the Levin report, in August 2002, "COL John P. Custer, then-assistant commandant of the U.S. Army Intelligence Center and School at Ft. Huachuca, Arizona" conducted a review of interrogations operations at Guantanamo. Custer called Guantanamo "America's 'Battle Lab'" in the war on terror, and recommended combining FBI and military techniques to extract "information by exploiting the detainee's vulnerabilities." The "Battle Lab" label stuck, though some, like Colonel Britt Mallow, of the Criminal Investigative Task Force, objected.

MG Dunlavey and later MG Miller referred to GTMO as a "Battle Lab" meaning that interrogations and other procedures there were to some degree experimental, and their lessons would benefit DOD in other places. While this was logical in terms of learning lessons, I personally objected to the implied philosophy that interrogators should experiment with untested methods, particularly those in which they were not trained.

Later, Dunlavey denied using the term, and Miller testified he couldn't remember. Even so, within a week of Custer's report, BSCT members and Gitmo interrogators were flying off to Fort Bragg to attend a training in the use of SERE techniques, run by JPRA and Lt. Col. Louie "Morgan" Banks, then Chief Psychologist for U.S. Special Forces Command. SERE psychologist Gary Percival and two other JPRA instructors, Joseph Witsch and Terrence Russell, taught the course. This training included instruction in disruption of sleep cycles and daily schedules, invasion of male prisoners space by female interrogators, placing prisoners in solitary confinement, use of phobias ("fear of spiders, of the dark or whatever"), hooding, hitting, use of military dogs, etc.

Approximately a week after the end of training, in the latter part of September, one of the JPRA instructors, Joseph Witsch, was having second thoughts, which he expressed in a memo to Col. Moulton and Lt. Col. Baumgartner, as well as leadership at Special Operations Command:

I believe the techniques and tactics that we use in training have applicability. What I am wrestling with is the implications of using these tactics as it relates to current legal constraints, the totally different motivations of the detainees, and the lack of direction of senior leadership within the [U.S. Government] on how to uniformly treat detainees. We are now attempting to educate lower level personnel in DoD and OGAs [other governmental agencies] with concepts and principles that are somewhat foreign to them and while it all sounds good they are not in a position nor do they have the depth of knowledge in these matters to effect change and do it in reasonable safety....

The handling of [Designated Unlawful Combatants] is a screwed up mess and everyone is scrambling to unscrew the mess ... If we want a more profound role in this effort we need to sell our capabilities to the top level people in the USG and not spend our time trying to motivate the operators at the lower levels to sway their bosses. This is running the train backwards and that is a slow method to get somewhere. There are a lot of people in the USG intelligence community that still believe in the old paradigm and wonder just what we're doing in their business.

Implementing the Torture Program

Whether or not anyone heard Witsch's concerns, or those of others (Banks says that he, too, protested the use of SERE reverse-engineering, but his protest seems questionable, given his organizational role in the Gitmo training), on September 26, a high-level group of administration visitors arrived at Guantanamo, including Alberto Gonzales, David Addington, DoD General Counsel Jim Haynes, CIA General Counsel John Rizzo, and Assistant Attorney General, Criminal Division, Michael Chertoff. One record of their meetings has been handed down in the form of minutes, including presentation by BSCT personnel, and a discussion of "harsh techniques", sleep deprivation, hiding prisoners from the International Red Cross, videotaping prisoners and possible use of "truth serum." The experiment was well under way.

After the administration officials left, the decision was made to get approval for harsher interrogation methods similar to those taught by SERE.

According to MAJ Burney, the BSCT psychiatrist, "by early October there was increasing pressure to get 'tougher' with detainee interrogations but nobody was quite willing to define what 'tougher' meant.... MAJ Burney added that there was "a lot of pressure to use more coercive techniques" and that if the interrogation policy memo that LTC Phifer had asked him to write did not contain coercive techniques, then it "wasn't going to go very far."

On October 25, 2002, General James T. Hill, Commander at SOUTHCOM, forwarded the request to get "tougher" and use the proposed SERE techniques to the Joint Chiefs of Staff. While he worried about the legality of some of the techniques, particularly death threats, he urged the Chiefs to consider that he wanted "to have as many options as possible at my disposal."

The Joint Chiefs hesitated. They asked for official comment from the different services. The Air Force reported back: "some of these techniques could be construed as 'torture,' as that crime is defined by 18 U.S.C. 2340." The Navy responded more favorably, citing the need for better "counter-resistance techniques," but asked for "more detailed interagency legal and policy review." The Marine Corps balked. Some of the techniques (e.g., sensory deprivation, use of dogs, nudity, exposure to cold, 20 hour interrogations) "arguably violate federal law, and would expose our service members to possible prosecution." The Army also cited "significant legal, policy and practical concerns," noting the techniques probably violated Bush's presidential order regarding "humane treatment" of detainees, and wanted more legal review.

Captain Jane Dalton, the Legal Counsel to the Chairman of the Joint Chiefs of Staff, testified to the SASC that she informed General Richard Myers, Chairman of the Joint Chiefs of Staff, of the legal objections by the services. Myers would later say he didn't remember any objections. Dalton then informed DoD General Counsel William Haynes of the military's objections. He, too, would later testify that he was unaware of any objections, saw no memos to that effect.

Ultimately, General Myers, apparently at the behest of Haynes (who presumably was acting on behalf of Secretary of Defense Donald Rumsfeld) "quashed" Dalton's review. Asked about dismissing JCS Legal Counsel review of the request for use of SERE/JPRA interrogation techniques at Guantanamo, the Chairman of the Joint Chiefs of Staff stonewalled.

GEN Myers said that he had "no specific recollection" of discussing with CAPT Dalton her efforts to conduct an analysis of the October 11, 2002 GTMO request.... He said that while he "did not dispute" asking her to stop working on her analysis and acknowledged that Joint Staff records indicated that she did stop work on her analysis, he had "no recollection or doing so" and did "not recall anyone suggesting" to him that she stop her review.

Meanwhile, JPRA was already planning their next training exercise for Guantanamo interrogators. Guantanamo got a new commander, Major General Geoffrey Miller, and the battle over the use of interrogation methods shifted to the construction of an interrogation plan for Mohammed al Khatani, with the government obsessed with the need to "break the detainee and establish his role in the attacks of Sept[ember] 11,2001." Approval for the plan came from the White House (emphasis in original):

A November 14, 2002 email from the GTMO Staff Judge Advocate LTC Diane Beaver to CITF lawyer stated, "[c]oncerning 63 [Khatani] my understanding is that NSC has weighed in and stated that intel on this guy is utmost matter of national security... We are driving forward with support of SOUTHCOM. Not sure anything else needs to be said."

A great deal more needs to be said, but we will settle with this denouement for the present.

Rumsfeld, upset that action had not been taken on the October GTMO request for harsher techniques thundered, "I need a recommendation." On November 27, 2002, Haynes notified Rumsfeld that he had received the concurrence of Deputy Secretary of Defense Paul Wolfowitz, Undersecretary of Defense for Policy Doug Feith, and Chairman of the Joint Chiefs of Staff (CJCS) General Richard Myers for most of the JPRA/SERE techniques. It's not clear to what degree the Department of Justice's Office of Legal Council's August 1, 2002 (Bybee) memo played a role in the approval process. In any case, on December 2, 2002, Rumsfeld signed off on the GTMO interrogation plan. He couldn't restrain himself from adding one final flourish:

In approving the techniques, the Secretary added a handwritten note at the bottom ofthe memo that questioned one ofthe limitations in the JTF-GTMO request... In reference to "the use of stress positions (like standing) for a maximum of four hours," the Secretary wrote: "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?"

At last, the SERE reverse-engineered interrogation program, a hybrid of old CIA KUBARK interrogation strategies, especially the use of sensory deprivation, isolation, and debility, were joined to a haphazard group of SERE-originated techniques of varying levels of brutality, themselves gathered from a wide variety of historically derived torture techniques, from Nazi Germany, to the Soviet GPU, and the interrogation of American airmen by Chinese and North Koreans during the Korean War.

And behind it all was the Joint Personnel Recovery Agency. What motivated them? Were the primary actors really Special Forces or CIA, operating through JPRA? Or was it simply a case of a military bureaucracy run amuck, and a White House eager to use any tool at its command to justify policies of aggressive war and perpetuity of power? Hopefully, both investigations and criminal prosecutions of those who planned and implemented the torture program at high levels will bring us some answers.

The greatest obstacle to that lies in the fact that the responsibility for the crimes is spread throughout the Pentagon, intelligence agencies, and the Executive Branch, as high as the President and Vice President of the United States, the former Chairman of the Joint Chiefs of Staff, and a myriad of Cabinet officials and top government attorneys. The powers attached to these offices are formidable, and will seek to protect their own. Only exposure and wide protest over a lack of accountability will bring about the change this country needs, and the justice.

Sick Torture Memos Also Lie: A Closer Look at the Bybee Memo

Also posted at AlterNet

Reading the just released August 1, 2002 memo by John Yoo (reportedly ghosting for Jay Bybee, then Assistant Attorney General of the United States, and now an Appeals Court Judge for the Ninth Circuit), to John Rizzo, then Acting General Counsel for the CIA, on the interrogation of Abu Zubaydah, is a surreal experience. There is so much that is strange and awful in it, it's hard to know where to begin.

But one thing that struck me right off the bat was the similarity of the statistics presented in the early part of the memo with the statement of Dr. Jerald Ogrisseg, a psychologist with Joint Personnel Recovery Agency, United States Joint Forces Command, before the Senate Committee on Armed Services on June 17, 2008.

Let's review some of the relevant text.

Yoo/Bybee write, "This letter memorializes our previous oral advice, given on July 24, 2002, and July 26, 2002, that the proposed conduct would not violate this prohibition." The prohibition referred to is the U.S. torture statute, Section 2340A, Title 18 of the U.S. Code.

In his statement, Ogrisseg states that July 24, 2002 was the date of his memorandum “Psychological Effects of Resistance Training.” Dr. Ogrisseg was then still a psychologist working for the Survival, Evasion, Resistance, and Escape (SERE) at the United States Air Force Survival School at Fairchild Air Force Base, Washington. Only a few days after filing his report with the commander of Joint Personnel Recovery Agency, the parent Pentagon organization for all the military SERE programs, on July 29 he became a civilian SERE psychologist, with a number of various duties.

More from Dr. Ogrisseg:

Mr. Chairman, with regards to my July 2002 communications with then Lt Col Dan Baumgartner, the then Chief of Staff of JPRA, my recollection is that Lt Col Baumgartner called me directly, probably on the same day that I generated my 24 July 2002 memorandum that I referenced earlier. He indicated that he was getting asked “from above” about the psychological effects of resistance training. I had no idea who was asking Lt Col Baumgartner “from above” and did not ask him to clarify who was asking. I recall reminding Lt Col Baumgartner in general terms about program evaluation data I’d presented in May of 2002 at the SERE Psychology Conference. These data, which were collected on Air Force survival students at different points of time during training, indicated that training significantly improves students confidence in their ability to adhere to the Code of Conduct.

Why might Bybee, Rizzo, Yoo or others have been interested in Ogrisseg's study of SERE psychological effects? The initial portions of the Aug. 1, 2002 memo are concerned primarily with demonstrating that the techniques migrating into the interrogation arena from SERE training programs were not harmful, physiologically or psychologically, at least not in a way that would violate the law as construed by the OLC attorneys.

Despite the presence of a "SERE training psychologist" from the very beginning of Zubaydah's interrogation. Captured in March 2002, Zubaydah told the ICRC he was tortured from the time of capture. He was allegedly waterboarded by June 2002. Now, unhappy with their intel, CIA was planning to move into an "increased pressure phase" on Zubaydah. OLC notes in the memo that it is relying on information about Zubaydah and Yoo/Bybee warns Rizzo if the "facts in your possession [are] contrary to the facts outlined here", then their "advice would not necessarily apply."

Were they suspicious about the situation as reported by Rizzo? Emptywheel noticed the reticence. The memo states (emphasis added):

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods.....

Nowhere else, significantly, does Yoo feel the need to quote so selectively and in such detail about what CIA Acting Counsel John Rizzo had represented to him.

Meanwhile, this is what Dan Coleman--an FBI guy with deep knowledge of al Qaeda--had to say about AZ in Ron Suskind's One Percent Doctrine:

Meanwhile, Dan Coleman and other knowledgeable members of the tribe of al Qaeda hunters at CIA were reading Zubaydah's top secret diary and shaking their heads.

"This guy is insane, certifiable, split personality," Coleman told a top official at FBI after a few days reviewing the Zubaydah haul.

In any case, the OLC felt it had to make the SERE techniques look as innocuous as possible. The techniques to be approved included the "attention grasp", "walling," facial slaps, "facial hold," cramped confinement, sleep deprivation, "wall standing" (really slamming a prisoner against the wall violently), insects placed in a confinement box, waterboarding, and stress positions.

Bybee/Yoo reeled off a series of statistics to Rizzo:

Through your consultation with various individuals responsible for such [SERE] training, you have learned that these techniques have been used as elements of a course of conduct without any reported incident of prolonged mental harm.

The memo mentions that hardly any complaints re SERE training were made to Congress, that one SERE "official" (name redacted) had trained 10,000 students in over three and a half years with only two dropouts, and "rare" requests for psychological counseling. The memo continues:

You have consulted with [redacted] who has ten years of experience with SERE training [about two lines redacted] He stated that, during those ten years, insofar as he is aware none of the individuals who completed the program suffered any adverse mental health effects.....

Additionally, you received a memorandum from the [redacted, about one line] which you supplied to us. [Redacted] has experience with the use of all these procedures in a course of conduct, with the exception of the insect in the confinement box and the waterboard. This memorandum confirms that the use of these procedures has not resulted in any reported instances of prolonged mental harm, and very few instances of immediate and temporary adverse psychological responses during the training. Of the 26,829 students trained from 1992 through 2001 in the Air Force SERE training, 4.3 percent of those students had contact with psychology services. Of those 4.3 percent, only 3.2 percent were pulled from the program for psychological reasons. Thus, out of the students trained overall, only 0.14 percent were pulled from the program for psychological reasons.

Surely one can do amazing things with statistics, and these last statistics seem very similar to those Dr. Ogrisseg had found in his research, presented the same day as the first oral approval by OLC to CIA in the Zubaydah request.

From Dr. Ogrisseg's statement:

Then, I recall Lt Col Baumgartner asking me if I thought training was harmful to students. This question and my responses to it formed the basis of my 24 July 2002 memorandum to Lt Col Baumgartner, which is the best record of the conversation that we had. In general terms, I indicated that a very small percentage of students (4.3%) had adverse psychological reactions to our training, but we (the survival psychology staff) were able to re-motivate almost all of those having adverse reactions (96.8%) to complete training. Thus, less than .2% of the roughly 14,000 students were unable to complete training due to psychological problems which arose during training.

The numbers aren't an exact match -- except that 4.3 percent figure -- but close enough. Perhaps the original figures from his July 24 paper would fit even better, but then it's likely OLC was playing fast and loose with the figures. They are certainly close enough to assume with strong presumption that it was Ogrisseg's July 24 memorandum that was being quoted in this part of the memo.

Too bad they didn't look farther into what Ogrisseg then said he told Lt. Col. Baumgartner (emphasis added):

Finally, as indicated in my 24 July 2002 memorandum, Lt Col Baumgartner asked me if I’d never seen the waterboard used, and what I thought of it. I told him that I had seen it used while observing Navy training the previous year, and that I would never recommend using it in training. He asked me why and if I thought it was physically dangerous. I responded that I didn’t see anyone getting physically injured when I observed it, and as stated in my memorandum, the Navy was applying it to medically screened trainees with medical personnel immediately available to monitor and intervene if necessary. However, that wasn’t the point, as psychologically the waterboard produced capitulation and compliance with instructor demands 100% of the time. During debriefings following training, students who had experienced the waterboard expressed extreme avoidance attitudes such as a likelihood to further comply with any demands made of them if brought near the waterboard again. I told Lt Col Baumgartner that waterboarding was completely inconsistent with the stress inoculation paradigm of training that we used, and was more indicative of a practice that produces learned helplessness – a training result we tried strenuously to avoid. The final area I recall Lt Col Baumgartner asking me about were my thoughts on using the waterboard against the enemy. I asked [sic] responded by asking, “wouldn’t that be illegal?” He replied that some people were asking from above about the utility of using this technique against the enemy for the same reasons I wouldn’t use it in training. I replied that I wouldn’t go down that path because, aside from being illegal, it was a completely different arena that we in the Survival School didn’t know anything about. When we concluded the talk, Lt Col Baumgartner asked if I would write him a memo reflecting what we’d just discussed regarding the psychological effects of training so he could include it with other materials he was sending up. He also asked if I would comment on both the physical and psychological effects of the waterboard. I replied that I would, and drafted the memo.

Investigators or prosecutors might want to look at Dr. Ogrisseg's July 24 memorandum, because it appears to be prime evidence for OLC cherry-picking of results regarding the effects of the interrogation techniques in question. Yoo or Bybee or Rizzo, or all three, took the statistics that made their case, and ignored anything else.

We also know Bybee saw the July SERE memorandum from his own testimony before the Senate Armed Services Committee:

Before drafting the opinions, Mr. Yoo, the Deputy Assistant Attorney General for the OLC, had met with Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, to discuss the subjects he intended to address in the opinions. In testimony before the House Judiciary Committee, Mr. Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the memos were being drafted. When asked whether he had discussed SERE techniques with Judge Gonzales, Mr. Addington, Mr. Yoo, Mr. Rizzo or other senior administration lawyers, DoD General Counsel Jim Haynes testified that he “did discuss SERE techniques with other people in the administration.” NSC Legal Advisor John Bellinger said that “some of the legal analyses of proposed interrogation techniques that were prepared by the Department of Justice... did refer to the psychological effects of resistance training.”

(U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released.

The OLC and CIA also ignored a wealth of other published information about the effects of SERE "stress inoculation," such as the June 2000 article, "Assessment of Humans Experiencing Uncontrollable Stress: The SERE Course," in Special Warfare:

Results

As shown in the charts on page 7, SERE stress caused significant changes in students' hormone levels. Recorded changes in cortisol levels were some of the greatest ever documented in humans. In some cases, the changes noted among the trainees were greater than the changes noted in patients undergoing heart surgery....

Changes in testosterone levels were similarly remarkable: In some cases, testosterone dropped from normal levels to castration levels within eight hours.

Or how about this May 2000 article in Biological Psychiatry, Hormone profiles in humans experiencing military survival training?

Conclusions: The stress of military survival training produced dramatic alterations in cortisol, percent free cortisol, testosterone, and thyroid indices. Different types of stressors had varying effects on the neuroendocrine indices. The degree of neuroendocrine changes observed may have significant implications for subsequent responses to stress.

Looking at more psychological than physiological symptoms, one well-known 2001 study in the August 2001 edition of the American Journal of Psychiatry looked at dissociative symptoms, e.g., depersonalization, derealization, psychic or emotional numbing, general cognitive confusion (emphasis added):

The current study was designed to assess the nature and prevalence of dissociative symptoms in healthy humans experiencing acute, uncontrollable stress during U.S. Army survival training. METHOD: In study 1, 94 subjects completed the Clinician-Administered Dissociative States Scale after exposure to the stress of survival training. In study 2, 59 subjects completed the Brief Trauma Questionnaire before acute stress and the dissociative states scale before and after acute stress. A randomly selected group of subjects in study 2 completed a health problems questionnaire after acute stress. RESULTS: In study 1, 96% of subjects reported dissociative symptoms in response to acute stress. Total scores, as well as individual item scores, on the dissociation scale were significantly lower in Special Forces soldiers compared to general infantry troops. In study 2, 42% of subjects reported dissociative symptoms before stress and 96% reported them after acute stress.

96 percent! Well, these statistics are very different from those that appeared to say that less than 2% of SERE subjects had any significant psychological symptoms. It's all in how you frame it in the research world, and apparently in the legal world as well.

In summary, even an initial cursory look at the August 1, 2002 Bybee memo on the "Interrogation of Al Qaeda Operative" shows that the memos were written in bad faith, were meant to deceive, and utilized a memorandum by Jerald Ogrisseg that explicitly warned against using at least some of the techniques (waterboarding) that were approved by OLC.

I'm confident that other researchers will find much more wrong with the recently released OLC memos. Their extremely poor quality and their misrepresentations of medical and psychological information make them very hard to imagine using as the basis of "good faith" representations for those CIA interrogators for whom Attorney General Holder granted immunity, i.e., those "who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice..."

I suppose a lot rides now on how you define "authoritative legal advice."

Submitting Evidence to the Spanish Court on U.S. Torture Plans

Scott Horton has reported that "Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo." The others targeted are John Yoo, Jay Bybee, David Addington, Doug Feith and William Haynes.

I wrote a series on the issue of grounds for prosecution not too long ago. Now I'd like to help the Spanish prosecutors by supplying some basic evidence, courtesy of the Senate Armed Services Committee Report on "the Treatment of Detainees in U.S. Custody", released late last year.

The rationale for the prosecution is established international law, the same sort of law that led to Spain charging August Pinochet for war crimes, led by the same Spanish judge that referred the Bush crew for possible prosecution, Baltasar Garzon.

Setting the Stage

As one reads the following, please keep in mind that there are many current controversies concerning memos written by Bush's Office of Legal Counsel that were meant to legitimize "aggressive" interrogation techniques and treatment of "war on terror" prisoners. Tomorrow, in fact, is the deadline set by a U.S. court for the release of some of these memos still kept secret, including one dated August 1, 2002 by Jay Bybee (or ghost-written by John Yoo and/or David Addington) giving legal approval to a host of "enhanced interrogation" techniques, including reportedly waterboarding.

The evidence I supply here predates that portion of the timeline. Whether or not Obama releases these memos, there is plenty of evidence to proceed with prosecutions. Jason Leopold reported at The Public Record last Saturday that the Department of Justice told the judge in the ACLU suit to "release documents related to 92 interrogation videotapes that were destroyed by the CIA in 2005" that they would only give information on videotapes going back to August 2002. But, as Leopold explains, the FBI Inspector General already documented FBI agent reports of "near torture" interrogations of prisoner Abu Zubaydah as far back as May 2002.

And now, of course, we also have the release of a previously secret report by the International Committee of the Red Cross documenting torture by the CIA.

But all that in good time, for now I want to discuss Department of Defense and Defense Intelligence Agency collaboration with the Joint Personnel Recovery Agency in plotting "exploitation" practices to be used by U.S. interrogators that would draw upon the torture training model of JPRA's SERE program. SERE is administratively part of Joint Personnel Recovery Agency (JPRA) for the Department of Defense.

The timeline for this begins as early as December 2001, before, as the SASC report makes clear, Bush's presidential order, based on an opinion by Alberto Gonzales made as early as January 9, 2002, which "closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees." The pre-January 2002 timeline is crucial, as it stands outside, i.e., is prior to, all governmental attempts to cover their intent to torture, and to break international laws and treaties to which the government was signatory.

I humbly suggest that those with means forward what follows to the Spanish prosecutors, once the final announcement of warrants issued is made. The fact that we are still waiting, and the day has passed in Spain, and no warrants have been issued, speaks to the probable amount of strong political pressure from the U.S. exerted on Spain at this time. (For more details on how the struggle for prosecutions is playing out in the United States, including the role of Democratic Senators Feinstein and Rockefeller insisted that CIA torture suspects like Stephen Kappes, #2 at CIA now, were kept on in the Obama-Panetta reign, the better to stifle possible prosecutions of CIA officials -- such shutdown of prosecutions got a push from CIA Director, former Clinton staffer Leon Panetta last week -- see Glenn Greenwald's recent article.)

In what follows, I concentrate on a period at the very beginning of the Bush torture program's existence, as it came into being.

The Evidence

I have added in bold emphases where I felt appropriate, to guide the reader to the essential points. But I strongly recommend that those interested read not only the full quote herein, but the entire report.

(U) On February 7, 2002, President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections afforded by the Third Geneva Convention. The President’s order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees. While the President’s order stated that, as “a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions,” the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in U.S. custody.

(U) In December 2001, more than a month before the President signed his memorandum, the Department of Defense (DoD) General Counsel’s Office had already solicited information on detainee “exploitation” from the Joint Personnel Recovery Agency (JPRA), an agency whose expertise was in training American personnel to withstand interrogation techniques considered illegal under the Geneva Conventions.

(U) JPRA is the DoD agency that oversees military Survival Evasion Resistance and Escape (SERE) training. During the resistance phase of SERE training, U.S. military personnel are exposed to physical and psychological pressures (SERE techniques) designed to simulate conditions to which they might be subject if taken prisoner by enemies that did not abide by the Geneva Conventions. As one JPRA instructor explained, SERE training is “based on illegal exploitation (under the rules listed in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War) of prisoners over the last 50 years.” The techniques used in SERE school, based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy’s SERE school, it included waterboarding.

(U) Typically, those who play the part of interrogators in SERE school neither are trained interrogators nor are they qualified to be. These role players are not trained to obtain reliable intelligence information from detainees. Their job is to train our personnel to resist providing reliable information to our enemies. As the Deputy Commander for the Joint Forces Command (JFCOM), JPRA’s higher headquarters, put it: “the expertise of JPRA lies in training personnel how to respond and resist interrogations – not in how to conduct interrogations.” Given JPRA’s role and expertise, the request from the DoD General Counsel’s office was unusual. In fact, the Committee is not aware of any similar request prior to December 2001. But while it may have been the first, that was not the last time that a senior government official contacted JPRA for advice on using SERE methods offensively. In fact, the call from the DoD General Counsel’s office marked just the beginning of JPRA’s support of U.S. government interrogation efforts.

The Exhibits

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. We only have the fax cover sheet at present. I have been informed that the full document is not available as it concerns a different governmental entity, one that did not sign off on declassification, as yet. Perhaps when the full unredacted SASC report is released, supposedly very soon now, we will be able to add another exhibit.

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.

"Mr. Shiffrin refers to Mr. Richard Shiffrin, who worked for William Haynes's in Donald Rumsfeld's DoD General Council office. Mr. Haynes is reportedly one of the officials the Spanish prosecutors intend to indict. Lt. Col. Dan Baumgartner was then head of JPRA.

In June 2008, Dan Baumgartner also gave testimony under oath to the Senate committee regarding the Dec. 2001 approach by DoD. From his testimony:

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. From what I reviewed last year with Committee staff members, the information involved the exploitation process and historical information on captivity and lessons learned.

The theme of JPRA promoting SERE expertise surfaces in Iraq a little less than two years after the first DoD approach. A September 9, 2003 email from Col. Randy Moulton, Commander of JPRA to Col. Mike Okita and a redacted addressee (could this be Maj. Gen. Geoffrey Miller, who, coming from his command in Guantanamo, on September 9 was just concluding his evaluation of interrogation procedures in Iraq) again makes the same point about JPRA "expertise".

There is a strong synergy between the fundamentals of both missions (resistance training and interrogation). Both rely heavily on environmental conditions, captivity psychology, and situation dominance and control. While I think this probably lies within DHS responsibility lines, recent history (to include discussions with DHS, USSOCOM, CIA) shows that no DoD entity has a firm grasp on any comprehensive approach to strategic debriefing/interrogation. Our subject matter experts (and certain Service SERE psychologist) have the most knowledge and depth within DoD on the captivity environment and exploitation.

I would remind my readers here that SERE exploitation famously includes the use of physical assault, stress positions, forced nudity, sleep deprivation, sensory overload, and other forms of physical and psychological torture.

Other Evidence: Re John Walker Lindh

Finally, I would like to suggest that there is at least one other piece of evidence related to this early use of torture and/or planning for torture. This concerns the report by Jesselyn Radack, a Justice Department attorney in 2001, tasked as a legal ethics advisor in DoJ's Professional Responsibility Advisory Office, with advising on the procedures surrounding the interrogation of the captured American John Walker Lindh in Afghanistan.

Radack wrote in 2007:

According to a secret document I obtained in June 2004, an Army intelligence officer "advised that before interviewing Lindh, instructions came from higher headquarters for him to coordinate with JSOTF [the Joint Special Operations Task Force] JAG officer. He was told . . . he could collect on anything criminal that was volunteered."

But Higher Headquarters told the intelligence office more than that. Rumsfeld's office told him not to handle Lindh with kid gloves. In a stunning revelation, the documents states: "The Admiral told him that the Secretary of Defense's counsel had authorized him to 'take the gloves off' and ask whatever he wanted." These instructions to get tough wth Lindh, contained in the document I have, are the earliest known evidence that the Bush Administration was willing to push the envelope on how far it could go to extract information from suspected terrorists.

Unfortunately, Ms. Radack does not supply the date for this document, or to whom it was addressed by the Army Intelligence officer in question. I'm sure that the Spanish court could obtain this document in full, if it so desired.

Concluding Remarks

Truly the evidence is massive for government malfeasance and crimes against humanity in the planning and use of torture and other cruel, inhumane, and degrading procedures against detainees held by both the Department of Defense and the CIA in the past eight years. Moreover, as documented by both myself and the Center for Constitutional Rights, a program that maintains illegal interrogation methods persists within current U.S. procedures, primarily, though not limited to, the use of techniques like isolation, partial sensory deprivation, and sleep deprivation, in Appendix M of the current Army Field Manual.

I congratulate the Spanish prosecutors in advance for taking on this crucial litigation, if in fact the warrants are finally issued. The U.S. is also bound by both domestic and international law to take up prosecutions, and it is a serious dereliction of law and duty of the highest order that this has not already occurred.

I hope either Spanish, or other, including U.S. prosecutors, take up the evidence I have presented here as telling documentation of U.S. official plans to subvert the Geneva Conventions and the UN Convention Against Torture, if not the U.S. War Crimes Act, and to have done so prior to the issuance of any executive office legal opinions that would have made it supposedly legitimate (an assertion to any legitimacy I also believe to be without merit).

U.S. readers of this should flood the DoJ offices with demands to initiate prosecutions forthwith. The rule of law is at stake. If the highest officials in the land can break the most serious laws with impunity, then there is no rule of law. There is only tyranny.

Now They're Getting It: Andrew Sullivan Discovers Earlier Torture Timeline

Bloggers everywhere are getting everything they can squeeze out of Vice President Dick Cheney's interview with ABC television the other day. It's full of gems like the following from the America's own dark prince:

And I think those who allege that we've been involved in torture, or that somehow we violated the Constitution or laws with the terrorist surveillance program, simply don't know what they're talking about.

It's clear to even the often obtuse mainstream media that Cheney has essentially admitted in the interview to ordering torture.

"I was aware of the program, certainly, and involved in helping get the process cleared," Cheney said...

You just want to spit in the man's face, throw a shoe at his head, or bring him up on several felony charges.

Andrew Sullivan's latest blog entry at The Atlantic, notes the legal vulnerability of the Bush/Cheney team in words this writer finds strangely familiar. Referencing the Senate report on detainee treatment, the declassified version of which was released last week, Sullivan writes:

The decision to torture individuals was made by Bush and Cheney before the CIA ever asked for legal cover for the torture they had been ordered to commit. The torture and abuse was planned before even the January 2002 presidential memo that authorized torture:

In December 2001, more than a month before the President signed his memorandum, the Department of Defense (DoD) General Counsel’s Office had already solicited information on detainee “exploitation” from the Joint Personnel Recovery Agency (JPRA), an agency whose expertise was in training American personnel to withstand interrogation techniques considered illegal under the Geneva Conventions.

It is important and gratifying to see the bigger names in the blogosphere pick up the import of the earlier torture timeline, and the legal exposure it brings to the Bush/Cheney/Rumsfeld/CIA band of outlaw brothers. Gratifying in part because I noticed this last summer, and needled the Senate committee and the press in general about it:

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 Baumgartner about this issue during the hearings?

With the publicity coming from the likes of Andrew Sullivan, and the announced campaign by the ACLU to call for an independent prosecutor to look into this earlier timeline issue, along with the other crimes of the administration on torture and interrogation, can it be too much to hope that this revelation is building to a tipping point, compelling action by the incoming Obama team, or by the supine Congress? While other mainstream liberal bloggers, like Glenn Greenwald in his latest post, have failed to notice the earlier timeline and its significance, some of his main commenters at Salon.com have added the Dec. 2001 JPRA approach to their official timeline webpages.

So far, Sullivan's adherence to the earlier timeline narrative, and the illegal plot it describes, is the best news yet that this scandal will grow only bigger, and with it the calls for prosecution of officials at the highest level of government.

Here's how we could start: DoD's approach to JPRA in December 2001, seeking information on reverse-engineering abusive "exploitation" interrogation techniques is prosecutable at least, one would think, under the Conspiracy section of 18 USC 2430:

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

The Senate report gives us the evidence. We've got them cold now. The approach to JPRA was conspriacy to commit torture, and a clear violation of the torture statute. Why can't we begin the prosecutions based on this? Why can't we start now?

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!