If Obama Withdrew Yoo, Bradbury Torture Memos, What Gov't Opinion Now Covers the AFM & Appendix M?

An article in the July-Sept. 2004 edition of the journal Military Intelligence (PDF) sheds further light on the origins of the Army Field Manual (AFM) on interrogation, FM 2-22.3, HUMINT Collector Operations (PDF), that became operational in September 2006. The AFM became the de jure standard for government interrogations in the "Global War on Terror" as a matter of policy with the passing of the Detainee Treatment Act of 2005 (DTA). Except, in 2005, the AFM was an earlier version.

By September 2006, the newer version included less restrictive controls on a number of questionable interrogation techniques, and had seriously lightened the restriction on the use of drugs in interrogations. It also included an annex to the manual, Appendix M, that was meant strictly for detainees not covered by Geneva POW protections, i.e., the detainees at Guantanamo and elsewhere. Appendix M allowed for the use of isolation, sleep deprivation, sensory deprivation (as a "field expedient" method), and anticipated at least some use of environmental and diet "manipulations."

But back in Summer 2004, Command Sergeant Major Lawrence J. Haubrich, U.S. Army Military Intelligence Corps, writing for the journal Military Intelligence (PDF) about military ethics in the aftermath of the Abu Ghraib scandal, noted that the new AFM had already been vetted by Judge Advocate General corps' [JAG] legal officials.

The DA [Dept. of the Army] Office of the JAG and JAG School reviewed each draft of FM 2-22.3, HUMINT Collector Operations, and each draft has been (and still is) in compliance with all Geneva Conventions, international agreements, and U.S. law. Additionally, the manual clarifies the responsibilities of HUMINT collectors and clearly delineates between HUMINT collection and other activities associated with internment operations. Finally, the manual now includes HUMINT collection techniques like strategic debriefing and elicitation as a result of the recent HUMINT and Counterintelligence Integrated Concept Team and lessons learned.

We can't, of course, know what drafts the JAG officials had seen in 2004. We don't know, for instance, whether or to what degree the techniques that ended up in the final document's Appendix M were then included in the earlier drafts. The fact that the manual went through numerous iterations was noted in a couple of blog posts by Marcy Wheeler, who noted the existence of a little examined Bush-era Office of Legal Counsel 2006 memorandum (PDF) on the AFM and its Appendix M.

"The Department of Defense ("DOD") has asked us to review for form and legality the revised drafts of the Army Field Manua1 2-22.3 ("Human Intelligence Collection Operations"), Appendix M of FM2-22.3 ("Restricted Interrogations Techniques"), and the Policy Directive regarding DOD's Detainee Program," Acting Attorney General Stephen Bradbury wrote in an April 13, 2006 "Memorandum for the Files." Naturally, Bradbury found that Appendix M was "consistent with the requirements of the law, in particular with the requirements of the Detainee Treatment Act of 2005..."

Wheeler noticed a couple of years ago, however, that the description of Appendix M in the Bradbury memorandum was not congruent with the version that was ultimately published.

Speaking of all those references to specific paragraphs of Appendix M, note that Bradbury wrote this memo on April 13, 2006. Appendix M was not finalized and released until September 6, 2006. And the contents of Appendix M changed significantly between the time Bradbury wrote his approval letter and the time the Appendix was put into effect five months latter.... Even the title changed–from the plural “Restricted Interrogation Techniques” to the singular “Restricted Interrogation Technique–Separation”....

A couple of examples of some of the changes Wheeler pointed out (bold emphases in original):

Bradbury cites M-23 for language limiting the use of Appendix M only to DOD interrogators specially trained and certified to use these techniques; that language now appears in M-22, but the paragraph now authorizes properly trained contract interrogators and “non-DOD personnel” to use the techniques as well. 

Bradbury cites M-21 for medical limits, including that “Detainees determined to be unfit for interrogation may not be interrogated” (note, this does not appear to be a direct citation from the appendix, but rather Bradbury’s summary of it); in the current Appendix, language on medical oversight appears in several places (M-16, M-20, M-23, M-24, M-30), but never includes an explicit restriction against using the techniques on an unfit detainee....

Then, just last August, Wheeler noted this in a legal opinion issued in the Donald Vance/Nathan Ertel lawsuit against Donald Rumsfeld for the torture they suffered when falsely held prisoners in Iraq:

The plaintiffs contend that, after the enactment of the Detainee Treatment Act, Secretary Rumsfeld continued to condone the use of techniques from outside the Army Field Manual. ¶ 244. They allege that on the same day that Congress passed the Detainee Treatment Act in December 2005, Secretary Rumsfeld added ten classified pages to the Field Manual, which included cruel, inhuman, and degrading techniques, such as those allegedly used on the plaintiffs (the plaintiffs refer to this as “the December Field Manual”). Id. The defendants describe this allegation as speculative and untrue, but we must accept these well-pled allegations as true at the Rule 12(b)(6) stage of the proceedings.8 

On appeal, the plaintiffs 8 cite a newspaper article reporting on the development of this classified set of interrogation methods. See Eric Schmitt, “New Army Rules May Snarl Talks with McCain on Detainee Issue,” New York Times (Dec. 14, 2005), available at http://www.nytimes.com/2005/12/14/politics/14detain.html (last accessed Aug. 4, 2011) (“The Army has approved a new, classified set of interrogation methods... The techniques are included in a 10-page classified addendum to a new Army field manual...”). The plaintiffs contend that Secretary Rumsfeld eventually abandoned efforts to classify the Field Manual, but that the “December Field Manual” was in operation during their detention and was not replaced until September 2006, after plaintiffs had been released, when a new field manual (Field Manual 2-22.3) was instituted.

This is evidence of the likelihood that the changes to the AFM materially changed it from what the JAG officials vetted in 2004. Nevertheless, I don't believe we have heard any protest or even a peep of protest from JAGs or other military legal sources over the AFM that was ultimately issued. The Bradbury memorandum itself is a deeply dishonest document, and relies heavily for its opinion on the earlier OLC memos by Yoo, Bybee, and Bradbury himself. In the memorandum, Bradbury cites the earlier OCL torture memos as having "previously concluded that techniques virtually identical to these [i.e., in Appendix M] are consistent with applicable U.S. legal obligations..."

He then refers readers to the July 14, 2004 testimony of Patrick F. Philbin before the House Select Committee on Intelligence (PDF). "There is no need to revisit those determinations here," Bradbury wrote. But since the Obama administration withdrew by Executive Order (13491) "All executive directives, orders, and regulations... from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals," where does that leave the legal assurances regarding Appendix M?

 This question is of high importance as, even though numerous human rights organizations (Center for Constitutional Rights, Physicians for Human Rights, Amnesty International, Open Society Foundations, and others) have expressed grave misgivings about the abuse inherent in the current Army Field Manual instructions, the government, including key Democrats on the Intelligence and Armed Services committees, and the Obama administration itself, support the current AFM as the relevant and sufficient standard for all U.S. government military and CIA interrogations.

The inadequacy of the Bradbury memorandum in vetting "legal" techniques for interrogation, techniques said to be "Geneva compliant" is laughably belied by the fact that four of the six "restricted interrogation techniques" discussed by Bradbury are redacted in the declassified release of the memorandum. Truly, the government must think we can't see what is right before our eyes.

Additionally, of the two techniques openly discussed -- "Mutt and Jeff" (Good cop/Bad cop) and "False Flag -- both were ultimately incorporated into the main text of the final AMF draft. Even though the other techniques were left unclassified in the final version, the government still censors the techniques Bradbury was describing in his 2006 memo.

In a particularly Bradburyian moment of bad conscience, or possibly only to cover his ass, the former top Bush lawyer remarks in a footnote, the "six restricted interrogation techniques" might not satisfy the DTA if used on "all DoD detainees" (italics in original). Even more: "Nor does our analysis suggest that these techniques would be lawful if used in the criminal justice process as a means of obtaining information about ordinary crimes."

Hence we can see the result of the Bush-Gonzales-Yoo removal of the GWOT detainees from protected POW status soon after 9/11. Since Appendix M is still used in interrogations, we must conclude the Obama administration has never withdrawn the order that removed Al Qaeda/Taliban and associated prisoners from Geneva protections. Or has the administration has issued new opinions that have never been made public?

It must not matter to the Congressional oversight mavens, who have said not a peep about these issues, and continue to push the AFM and Appendix M. Nor does the proud JAG corps, who in some cases were known to protest the torture as it unfolded at Guantanamo, or the unfairness of the "Star Chamber" military commissions process, have any update I know of from their early stamp of approval given to the AFM.

One could not hope for much from a government that slaughtered two million Indochinese, and was never held accountable for that and many crimes that followed. It may be tilting at windmills to believe that the ongoing use of torture, even as one version of it is enshrined now in a formal military document, would become a matter of some social protest or media condemnation. This is a society and a nation totally adrift in a sea of moral nihilism when it comes to military and intelligence matters.

Despite Yoo/Bybee Denials, PTSD "Service Connected" to SERE Torture Techniques

Originally posted at FDL/The Seminal

In the August 2, 2002 memo to John Rizzo at the CIA, "Interrogation of an Al Qaeda Operative," written primarily by John Yoo and signed by Jay Bybee (PDF), a number of statements are made as regards the relative safety of the SERE training program for use on U.S. soldiers. As most readers must know by now, SERE stands for Survival, Evasion, Resistance and Escape, and the program of the same name is used to teach pilots, Special Operations personnel, "code of conduct" behaviors and strategies should they ever be captured by an enemy force. The Resistance component provides an exposure experience, where trainees are subjected to mock torture with the idea that familiarity with possible torture techniques will harden them should they ever be presented with the real thing.
 
It was this mock torture component, as taught in SERE classes SV-83 and SV-91 (the latter class aimed specifically at teaching clandestine "Special Mission Units"), that was reverse-engineered by military psychologists James Mitchell and Bruce Jessen, and further fine-tuned by CIA officials, and constituted the torture that was used at CIA (and possibly JSOC) black site prisons under the rubric of "enhanced interrogation techniques." Subsequently, physicians and psychologists at the CIA's Office of Medical Services were used to provide "opinions to the agency and [OLC] lawyers whether the techniques used would be expected to cause severe pain or suffering and thus constitute torture."

In a series of recent articles, I've pointed out Yoo, Bybee, and later Office of Legal Counsel attorney Stephen Bradbury, disregarded internal SERE documents related to the safety of waterboarding. Now we can add the suppression of complaints by SERE trainees of having contracted PTSD from participation in SERE training. This directly contradicts the Yoo/Bybee contention in the Aug. 2, 2002 memo to Rizzo, where they wrote, "Through your [i.e., CIA] consultation with various individuals responsible for such 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."

Yet it shouldn't have taken too long to know, and certainly JPRA officials should have been aware of complaints made by various enlisted personnel such that they had incurred PTSD as a result of their "service connection" to SERE training. One such complaint, made as far back as 1999, received approval of disability status for PTSD by the Veterans Administration in July 2003. The decision regarded an appeal of a 2000 decision against a veteran claiming PTSD. The serviceman, who had retired in 1996, was represented by the American Legion.

After review of the appeal, it was found that "The veteran has a current diagnosis of PTSD associated with experiences he suffered as part of his in-service SERE training."

The veteran's December 1999 claim relates that he attended SERE training in Fort Bragg, North Carolina, in 1992. During the training, he was subject to interrogations, stripping down, mockery, assault, and exposure to extreme weather conditions. The veteran's February 2000 statement, as well as the January 2003 testimony at the Travel Board hearing, further describes physical assault and interrogations with emotional abuse he experienced during the SERE course. The Board finds the veteran's hearing testimony to be credible and probative.

The decision has even more power when one considers that there was other evidence indicating that there were other sources of possible traumatic experience, e.g., childhood abuse. But the judge at the Board of Veteran's Appeals found that the PTSD from SERE training was the actionable occurrence. Also, note that the veteran's experience at SERE did not include the waterboard, as only the Navy SERE schools used the waterboard in their training, even as far back as 1992.

The military has a scandalous history of denying PTSD claims. In a 2007 article by Joshua Kors at The Nation, doctors admitted to feeling pressured to not diagnose PTSD, and instead, soldiers with PTSD were receiving diagnoses of personality disorders, or otherwise denied PTSD claims. Last month, the Obama administration loosened VA rules on determination of PTSD, which will not now rely so heavily on proving a specific event caused the condition.

Yoo himself apparently believed that PTSD constituted "prolonged mental harm" of the sort that is labeled torture. He said as much in his March 2003 OLC memo to William Haynes at the Department of Defense on the interrogation methods at DoD (PDF).

"...the development of a mental disorder such as posttraumatic stress disorder, which can last months or even years, or even chronic depression, which also can last for a considerable period of time if untreated, might satisfy the prolonged harm requirement.”

Yoo's 2003 memo closely followed the reasoning of his earlier memos, though later, then-OLC head Jack Goldsmith told Haynes to disregard the Yoo memo in December 2003. It is not clear what DoD relied on for legal advice as regards their interrogation program after that point (for more, see this article by Marcy Wheeler).

Despite the SASC report into "detainee" abuse, released last year, much of the involvement by DoD actors and entities in the torture program remains highly obscure. Jason Leopold and I are working on a major investigative story to be published in the weeks ahead regarding the Bush torture program, and Department of Defense research and experimentation into interrogations and torture.