While it is generally believed the Obama administration outlawed torture by executive order in January 2009, the ban was not total. The use of techniques of psychological torture still remains.
According to the UN committee that reports on country compliance with the UN treaty, the Convention Against Torture, the U.S. Army Field Manual (AFM) on interrogation uses techniques that constitute “ill-treatment” and raise concerns about the use of torture.
The AFM describes 19 interrogation procedures used by the military and the CIA. The U.S. is a signatory to the UN treaty against torture, although it ratified the treaty with certain “reservations” that many feel weaken compliance.
Because human rights groups and some journalists had pointed out from the beginning the presence of abusive interrogation techniques in the current Army Field Manual, whose latest incarnation dates to September 2006, the Department of Defense (DoD) felt compelled to answer such charges.
As a result of a FOIA filed by this author via MuckRock, the Office of the Secretary of Defense (OSD) has released a set of “talking points” DoD used to explain the Army Field Manual interrogation technique called “Separation” in the context of Geneva Convention prohibitions against the use of torture, and cruel, humiliating and degrading treatment of prisoners.
The release of the talking points, which are undated, and two other associated 2007 DoD memos, was in response to a FOIA request for “all materials involved in the review of ‘activities’ surrounding the use of Army Field Manual 2-22.3's (AFM) restricted "Separation" technique, as described in the AFM's Appendix M.”
Documents Withheld
Unfortunately, OSD did not actually release any requested documents related to a review of Appendix M’s Separation technique. It seems likely that documents related to any such review were part of “approximately 67 pages” withheld as “classified national security information,” as explained in a March 17 letter from Leslie Carr, the Chief of the Department of Defense’s Office of Freedom of Information.
On March 11, 2016, Associated Press published an article that highlighted the problems generated by the Pentagon’s use of Appendix M, a problem that, as noted above, has been described by human rights groups and other commenters, but which until recently has not generally been discussed in the mainstream media’s coverage of the torture issue.
As the AP story noted, in November 2014, the UN Committee on Torture, which polices the UN treaty against torture to which the U.S. and most other nations are signatories, stated that the Appendix M reliance on sleep deprivation constituted a form of “ill-treatment.” Furthermore, the use of goggles and blindfolds or earmuffs as a form of sensory deprivation could cause psychotic reactions, thereby “raising concerns of torture and ill-treatment.”
The use of torture and ill-treatment goes against the restrictions of Common Article 3 of the Geneva Conventions. Transgressions against Common Article 3 are relevant in this context because the U.S. has reserved the use of Appendix M’s “Separation” technique – which also includes the use of solitary confinement for periods of up to 30 days, or longer if approved by a relevant DoD official – for use on “unlawful enemy combatants.” “Separation” cannot be used on enemy prisoners of war, who have more robust Geneva treaty protections (as the DoD Talking Points make clear) against threats, insults, or exposure to "any unpleasant or disadvantageous treatment of any kind."
“No suggestion of torture”
The “talking points” begin with a discussion of how Appendix M’s Separation technique supposedly “meets Common Article 3 Standards.”
According to the document, there can be “[n]o suggestion of ‘torture’” in using Appendix M “unless prolonged isolation or sensory deprivation, and severe mental suffering [is] involved." Moreover, per DoD, Appendix M does not constitute “cruel, inhumane, or degrading” treatment, which is also disallowed by UN treaty, "as it is a technique used extensively in US prisons and does not 'shock the conscience',” and moreover has been the subject of “numerous legal reviews.”
In their talking points, DoD tries to pretend that its “Separation” technique only consists of segregation or solitary confinement for the purposes of interrogation, and never refers to the aspects of Appendix M that allow for restricting sleep to a maximum of 4 hours per day for 30 days or longer, or using a form of sensory deprivation that can cause psychosis. This is the meaning of their argument that the technique is “used extensively in US prisons,” as solitary confinement unfortunately remains under widespread use inside the United States.
Yet the use of isolation in US prisons is currently under heavy criticism for the terrible psychiatric and emotional damage it causes prisoners. In February 2014, the damage caused by this practice was the subject of congressional hearings.
One legal review of Appendix M – and the only such legal review that has apparently ever been released publicly – was undertaken by Stephen Bradbury, the author of the 2005 torture memos used by the Bush administration to justify the use of waterboarding and other techniques of the CIA’s “enhanced interrogation” torture program.
The Bradbury Memo
Bradbury’s memo-review “for the files,” undertaken when he was Acting Assistant Attorney General, was dated September 13, 2006. His approval of Appendix M was never withdrawn by the Obama administration. Most commentators have ignored the fact that Obama’s January 2009 executive order, “Ensuring Lawful Interrogations,” indicated that the Bush-era memos on interrogation and torture would be withdrawn only after review by the Attorney General, and not in a blanket fashion.
So thanks to the executive order loophole, the Bradbury memo on Appendix M was never rescinded. In his memo, Bradbury made a point of stating that some of the techniques used in the Army Field Manual 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 warned that Appendix M techniques would not necessarily be lawful “if used in the criminal justice process as a means of obtaining information about ordinary crimes.” Certainly something was very different about these interrogation techniques.
It appears the Bradbury review of the 2006 rewrite of the Army Field Manual on interrogation, and its Appendix M, was seriously deficient. The Department of Justice Office of Legal Counsel attorney Bradbury minimized the use of isolation, and never even mentioned the use of sleep and sensory deprivation. But he did understand that the techniques under consideration would not pass muster in relation to the Geneva Conventions covering Prisoners of War.
“Not an authorized interrogation technique” for POWs
The second part of the “talking points” takes up Bradbury’s caveat, announcing “Separation may not be used on EPWs [Enemy Prisoners of War]” due to a number of Geneva regulations, including Articles 17, 21, and 22.
According to these protections, POWs cannot be “threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind.” They cannot be held in “close confinement” to a cell or single room. Nor can they be separated from other prisoners from the same forces. Under the Army Field Manual’s provisions, a subset of prisoners has been removed from such protections: the “detainees” captured in the “war on terror.”
The policy of removing prisoners from the military actions against Al Qaeda and the Taliban from the protections of the Geneva Conventions pertaining to POW protections was hammered out in a series of memos by Bush Administration figures beginning in January 2002. This policy of the Bush administration has been followed by the Obama administration as well.
DoD has been careful to keep those protected from Geneva-defined abuse from those who they say are not. In a separate document in the same FOIA release as the “talking points,” a September 2007 memo from then Under Secretary of Defense for Intelligence, James Clapper, Jr., to the DoD General Counsel and the directors of a number of DoD intelligence components, Clapper explained that, first of all, “Separation” is not the same as the administrative segregation of prisoners for security purposes.
According to Clapper, it is an interrogation technique, but it “is not an authorized interrogation technique for lawful enemy combatants,” i.e., for prisoners of war covered by Geneva. “In all cases, a status determination that a detainee is an unlawful enemy combatant must occur prior to employing the separation interrogation technique.”
It follows that when the protections of the Geneva Conventions for prisoners are removed, questions of maltreatment and torture arise. Prisoners held at Guantanamo and elsewhere have said torture took place. To date, there is no specific testimony of solely having been abused under Appendix M and the sole use of the Army Field Manual. Partly, the public has been kept in the dark due to the classification of almost everything having to do with the treatment of detainees. However, there is ample evidence of abuse by use of isolation and sleep deprivation and other techniques used in the AFM.
Prolonging the “Shock of Capture”
The potential for serious harm by use of Appendix M techniques is something brought up in the Army Field Manual itself more than once. “Separation” interrogations require the “presence of qualified medical personnel for emergencies.” Detainees must be “checked periodically in accordance with command health care directives” [p. M-6].
Each use of “Separation” requires a “legal review.” The manual suggests that during “Separation” interrogations, a Behavioral Science Consultant be available for “custody and control oversight” [M-4].
When using “Field Expedient Separation,” which the UN found could produce psychosis, raising thereby concerns of torture, the AFM states such interrogation “must be monitored to detect any possible health concerns” [p. M-9].
The DoD “talking points” conclude with the assurance that the use of the “Separation” technique (really a combination of various techniques under one name) is “an essential tool for interrogation, particularly in the first few weeks of internment.” The reason for this is the prolongation of the “shock of capture,” a point made in the Army Field Manual itself [p. M-8].
The release of the DoD “talking points” on Appendix M demonstrates that the Defense Department was sensitive to charges of torture. But the arguments DoD gathered were specious, and misrepresented the full use of the techniques involved.
The U.S. government claims that its interrogation policies are vetted and subject to ongoing review. But evidence of such review is kept hidden from public scrutiny.
While I welcome the release of the Pentagon’s “talking points” on Appendix M, the government must go further and release all the relevant documentation related to DoD review of what UN experts called “ill-treatment” and possible torture. Indeed, as an examination of relevant government documents show, current interrogation techniques raise enough threat of harm to detainees, even after the banning of the CIA’s “enhanced interrogation techniques,” that they require continual medical monitoring.
We still await a full accounting of U.S. interrogation practices and their effects on prisoners held in the U.S. “war on terror.”
An Appeal is Filed
Three documents were released to me in entirety, but these documents, while appreciated, were not particularly germane to my original FOIA request. That request, dated February 9, 2014 to the Office of the Secretary of Defense FOIA office, asked “for all materials involved in the review of ‘activities’ surrounding the use of Army Field Manual 2-22.3's (AFM) restricted 'Separation' technique, as described in the AFM's Appendix M"....OSD has since responded that while they have received my appeal, the amount of work in their office is such that they cannot respond in a timely fashion.
I believe the information withheld by Mr. Higgins – some 67 pages in all – pertains to the review materials I had requested. I ask by way of this appeal that those pages be released, and the original response from OSD be deemed non-responsive, in part. The denial authority did not describe in what way these withheld materials would harm or violate classification of national security information. Indeed, I, and the public who might follow these proceedings, do not even know what the withheld materials are. This is germane as one reason for the FOIA request was to see if in fact “activities” surrounding use of Appendix M’s “Separation” technique have or are indeed being reviewed “periodically in accordance with” the appropriate DoD directive.
"Due to an extremely heavy FOIA workload, we are unable to complete your appeal within the statutory time requirement," wrote Danaeka Spear, Chief of the Appellate Office on May 24, 2016. "In fairness to the general public, we make every effort to treat all requesters equally. Accordingly, responses are made on a first-in, first-out, easy-hard basis, and controlled in response queues. When the appellate review of your case is complete, you will be notified by the appellate authority, the Director of Oversight and Compliance, Office of the Secretary of Defense, of the final decision."
Transparency in government is not a priority of the current administration, no matter what the President has said about this in the past. It's hard to believe it will be much of a priority for the foreseeable future. Hence the need for journalists and interested citizens to keep fighting to get out the information that educates the public about the actual actions of their government.
For the full text of my FOIA appeal, see the relevant page at MuckRock.
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