The BAU, explained elsewhere in documents released on Friday, is “comprised of Supervisory Special Agents with an average of 18 years of experience in criminal and counterintelligence investigations.”

The memo lays out clearly and simply what the interrogation experts at the FBI knew about interrogations of terror suspects, what would or would not work on them, and what sort of conduct was illegal. And it reads much like the sorts of arguments we’re now hearing from the America Civil Liberties Union and other civil and human rights organizations arguing that senior defense department officials and lawyers who approved abusive techniques ought to be criminally investigated.

“Central to the gathering of reliable, admissible evidence is the manner in which it is obtained,” the authors write to the General. “Interrogation techniques used by the DHS [Defense Human Intelligence Services, part of DoD] are designed specifically for short term use in combat environments where the immediate retrieval of tactical intelligence is critical. Many of DHS’s methods are considered coercive by Federal Law Enforcement and [Uniform Code of Military Justice] standards. Not only this, but reports from those knowledgeable about the use of these coercive techniques are highly skeptical as to their effectiveness and reliability.”

Most of the detainees at Guantanamo Bay had already been interviewed repeatedly overseas by the DHS, so the FBI recommended a different approach be taken at Guantanamo.

The FBI favors the use of less coercive techniques — ones carefully designed for long-term use in which rapport-building skills are carefully combined with a purposeful and incremental manipulation of a detainee’s environment and perceptions.

The BAU staff explain:

FBI/CITF agents are well trained, highly experienced and very successful in overcoming suspect resistance in order to obtain valuable information in complex criminal cases, including the investigations of terrorist bombings in East Africa and the USS Cole, etc. FBI/CRT interview strategies are most effective when tailored specifically to suit a suspect’s  or detainee’s needs or vulnerabilities. Contrary to popular belief, these vulnerabilities are more likely to reveal themselves through the employment of individually designed and sustained interview strategies rather than through the haphazard use of prescriptive, time-driven approaches. The FBI/CITF strongly believes that the continued use of diametrically opposed interrogation strategies in GTMO will  only weaken our efforts to obtain valuable information.

The memo goes on to list the interrogation techniques being used, and then to list which ones are “not permitted by the U.S. Constitution.” Those include: the use of stress positions for more than four hours; hooding; 20-hour interrogation segments; stripping a detainee of all clothing; and exploiting individual phobias, such as fear of dogs, to induce stress. They also include the use of scenarios designed to convince a detainee that death or severe pain is imminent for him or his family; waterboarding (here called “use of wet towel and dripping water to induce the misperception of drowning”); and exposure to cold weather or water.

All of those techniques, we now know, continued to be used by the Defense Department.

The FBI also warned that the use of such techniques would make any evidence derived inadmissible in federal court and if admissible in a military commission, likely to be given “little or no weight.”

The FBI drafters of the memo further explained that most of those techniques, particularly the last four, would also violate the U.S. anti-torture statute. It recommended that they not be used.

We know that the Pentagon and CIA went ahead and used them anyway. Instead of relying on their top experts in the FBI, they relied on a plan developed by a couple of private psychologists with no experience whatsoever in interrogating terror suspects and who cribbed much of their plan from a study of Chinese Communist techniques used to obtain false confessions from American prisoners during the Korean war. Senior U.S. officials then sought legal opinions from the Office of Legal Counsel that would tell them that these techniques, contrary to the FBI’s opinions, were not illegal. Conveniently, those opinions did cast the techniques described in a completely different light.

The most recently released memos have not gotten much attention, as torture fatigue sets in and the Bush torture program becomes old news. But the FBI memo is important because it adds to the growing body of evidence that senior defense department and CIA officials deliberately ignored the opinions of the best trained and most experienced people in the government about interrogations that abusive interrogations would not work and were not legal. Add that to the rest of the evidence that senior Bush administration officials did not act in good faith in relying on the Office of Legal Counsel memos that justified the techniques the Defense Department and CIA were using, and this latest declassified memo adds weight to the argument that something fishy was going on at the highest ranks of government that demands further investigation.

This latest memo also sheds light on why some in the Defense Department and some Republicans are now so eager to try Guantanamo detainees in military commissions rather than in Article III federal courts. They know that the evidence extracted from the prisoners under the “enhanced” methods Cheney is still defending doesn’t stand a chance in front of an independent U.S. federal court judge.

These latest documents provide a glimpse of the early struggles between the FBI and the Pentagon over just how to conduct the “war on terror” and how to interrogate and treat that war’s detainees. Sadly, they reveal that the FBI knew perfectly well — and repeatedly warned Defense Department officials, as well as Justice Department lawyers — that the abusive interrogation techniques being used on detainees at Guantanamo Bay were likely to be ineffective and make subsequent prosecutions impossible.

As one memo says, while the interrogation techniques based on tactics used in the U.S. Army Search, Escape, Resistance and Evasion (SERE) training “may be effective in eliciting tactical intelligence in a battlefield context, the reliability of information obtained using such tactics is highly questionable, not to mention potentially legally inadmissible in court.”

That memo was written in May 2003.  The “enhanced” interrogation techniques, such as stress positions and prolonged sleep deprivation, were still being used and justified in memos as late as July 2007. The memo raises several important questions. Did the Office of Legal Counsel lawyers drafting those later memos for the CIA not know about the FBI’s earlier objections? Or did they just dismiss them out of hand? Were they told to ignore those earlier conclusions?

Then there’s the fact that senior officials from the Criminal Investigative Task Force, including the chief psychologist with the Naval Criminal Investigative Service “repeatedly argued for implementation of a rapport-based approach” and “lamented the fact that many DHS [Defense Human Intelligence Services] interrogators seem to believe that the only way to elicit information from uncooperative detainees is to use aggressive techniques on them.”

“Despite objections raised by the [Behavioral Analysis Unit of the FBI], the DHS initiated an aggressive interrogation plan for #63,” who elsewhere in the document is identified as Mohammed al-Qatani. “This plan incorporated a confusing array of physical and psychological stressors which were designed, presumably, to elicit #63’s cooperation. Needless to say, this plan was eventually abandoned when the DHS realized it was not working and when #63 had to be hospitalized briefly.”

Officials from the Criminal Investigative Task Force and the Behavioral Analysis Unit drafted a letter “reiterating the strengths of the FBI/CITF approach” and providing “a detailed historical record of the development of interagency policies regarding aggressive interrogation techniques in GTMO.” The letter also argued that they were a bad idea.

Not only did the officials not succeed in convincing DHS to abandon the techniques, but the document described how the military and DHS inaccurately portrayed to the Pentagon that the FBI’s Behavioral Analysis Unit approved of and helped design the very techniques that the BAU warned would backfire.

Although we knew before that the FBI had disagreed with the so-called “enhanced” interrogation techniques and refused to participate in them, this latest release of previously classified information reveals the extent to which FBI officials made both the legal and practical case to senior Pentagon and Justice Department officials for why the usual rules on interrogations should be followed.

That they were so blatantly ignored suggests more than just bad judgment. It suggests a deliberate indifference to the facts and the law, which cries out for a more thorough investigation.

09 Memos

Vitter had claimed that counting illegal immigrants in the Census would allow Democrats to gain more seats in Congress than they’re entitled to have, but previous census directors and experts had warned that changing the census questions at this stage of the process would be extremely costly and basically impossible.

Since 1790, the U.S. Census Bureau has asked people whether they are native or foreign-born, but it has never asked about their legal status. Immigrants’ advocates say asking about legal status would deter many immigrants from participating, leaving the census with an inaccurate count of actual U.S. residents.

In addition to the distribution of congressional seats to states, census data are used to make decisions about what community services to provide and how to distribute federal funds to local, state and tribal governments.

The amendment, S.A. 2669, to the Commerce, Justice, Science and Related Agencies Appropriations Act, would have forced the government to try the suspected plotters of the 9/11 attacks in military commissions. The Obama administration opposed the amendment, but still has not announced where it wants to try the 9/11 suspects.

Between 1990 and 2006, Mexican immigrants legalized under IRCA dramatically increased their education levels, reduced poverty rates and became more likely to buy their own homes. Real wages rose, many of them moved into managerial positions and the vast majority did not depend upon public assistance, the report finds.

Economic Progess via Legalization is one of three reports issued by the Immigration Policy Center today aimed at encouraging policymakers to pass comprehensive immigration reform legislation. The other two look at the social and economic benefits of legalization, and at who should be allowed to benefit from an “earned legalization” program.

The operation was supposed to be part of an ICE program to deport dangerous illegal immigrants who had previously been ordered deported and had prior criminal records, reports The Arizona Republic. But of the 80 people arrested, only six had prior criminal histories, and only two of those were fugitives. According to the ACLU, “at least 23 of the 80 arrests were for people that ICE calls ‘incidentals’ — people who happened to be present at a residence or workplace when authorities showed up looking for someone else.”

This afternoon, Sheriff Joe Arpaio of Maricopa County, Arizona, who’s known for encouraging local law enforcement to search out illegal immigrants and is under federal investigation for racial profiling as a result, tweeted that “the ACLU doesn’t want ICE arresting illegals either,” with a link to the Arizona Republic story.

The Graham amendment is expected to come to a vote today during consideration of the Commerce/Justice/Science appropriations bill. The earlier Homeland Security and Defense Department spending bills already include restrictions on transferring Guantanamo detainees to the United States.

This restriction, which is reportedly backed by 150 family members of victims of the 9/11 attacks, would bar the trials of the alleged 9/11 plotters in civilian federal courts, effectively forcing them to be tried by military commissions.

The Obama administration has suggested that it wants to try the 9/11 suspects in federal court, and so far has fought to retain the power to decide where the terror suspects will be tried. Last week, Defense Secretary Robert Gates and Attorney General Eric Holder warned Senate leaders that Graham’s amendment “would be unwise, and would set a dangerous precedent.”

The administration has said it will begin announcing where it wants to try the terror suspects held at Guantanamo Bay by November 16.

I reported earlier that Amherst was considering taking a few of the detainees, at the urging of a group called No More Guantanamos. At least one of the men it was considering inviting still had not been cleared for release, however. The town’s resolution last night clarified that they’d only take those that the government has determined do not pose a security threat.

Of about 220 men still being held at Guantanamo, about 75 have been cleared for release. Many have not been returned home either for fear of persecution in their home countries, or because the United States does not trust the government of their home country to ensure they don’t join local terrorist groups upon their return.

Amherst Town Meeting is the town’s governing body. Its 250 members are elected by precinct to represent the town.

The Justice Department has said it will not appeal the Sept. 17 order of Judge Judge Colleen Kollar-Kotelly, who granted Al Rabiah’s petition for release in a scathing ruling that criticized the U.S. government and described how interrogators used coercion and abuse to extract false confessions from him. Al Rabiah’s lawyer, David Cynamon, has demanded an investigation from the Senate Armed Services Committee and the inspectors general of the Defense and Justice departments, as well as from Attorney General Eric Holder. He has not received a response.

The situation sounds reminiscent of the case of Mohammed Jawad, an Afghan teenager who a military commission judge had similarly ruled was “tortured” and coerced into confessing to throwing a grenade at U.S. soldiers. The bulk of his case was based on his coerced statements, and was eventually thrown out by the military commissions and dropped by the Justice Department.

Jawad’s military lawyer, David Frakt, complained repeatedly to senior Defense Department officials that he believed U.S. military personnel had committed war crimes in connection with his client. As TWI documented in September, Frakt never received a response, and the matter appears never to have been investigated.

Jawad is now back in Afghanistan. Al Rabiah’s future, however, remains in doubt. Although the Justice Department has said it won’t appeal his order of release, a military commission case is still pending against him.

“Some have opposed the closing of Guantanamo because they believe there is no viable alternative approach to handling terrorist suspects,” said Thomas Pickering, former Undersecretary of State for Political Affairs and former U.S. Ambassador and Representative to the United Nations, in a statement released yesterday. “This declaration presents a careful plan for finally bringing terrorists to justice in full keeping with our Constitution, as well as for protecting our nation’s values, security, and commitment to our international obligations.”

The bipartisan declaration, coordinated by Human Rights First and the bipartisan Constitution Project, opposes indefinite detention without charge and supports the trial of all terrorism suspects in federal courts.