Over the weekend, news reports revealed that terror suspects are being held in a secret part of the prison at that Bagram air base for interrogation. They’re denied access to the International Committee of the Red Cross, and some have claimed they’ve been subjected to abuses, including sleep deprivation, sexual humiliation and other maltreatment similar to the sorts of interrogation abuses that occurred during the Bush administration.

Human Rights First is now calling for a full investigation of the so-called “black prison” at Bagram and the alleged abuses there.

“These allegations raise serious questions about whether reforms initiated by the Obama administration are being properly implemented and about whether they are sufficient to end torture and detainee abuse,” the organization wrote in a letter sent yesterday to Afghanistan Commander Vice-Admiral Robert Harward. “If substantiated, the alleged conduct of detaining authorities is in violation of U.S. law, including the Detainee Treatment Act, and the 2006 Army Field Manual, which is applicable to all U.S. government agencies. It is also in violation of international law, including Common Article 3 of the Geneva Conventions, the International Covenant on Civil and Political Rights, and the Convention against Torture.”

The letter asks that the results of the investigation be made public and that the perpetrators of abuses be held accountable.

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

New documents obtained by TWI related to the case of Mohammed Jawad, an adolescent tortured by Afghan police and then abused again by U.S. interrogators, suggest that not only certain CIA interrogations, but interrogations by the Department of Defense demand a broader investigation as well.

Last month, Attorney General Eric Holder announced that he would investigate only CIA interrogations that appeared to have violated the agency’s rules and guidance from the Department of Justice. The Jawad case, however, reveals that U.S. military interrogations also violated well-established laws and appear to have violated the Justice Department’s legal guidelines as well. The newly obtained documents also reveal that the Department of Defense repeatedly failed to follow up on complaints by Jawad’s lawyers that its officers were breaking the law.

Illustration by: Matt Mahurin

Jawad, who was about 12 years old when he was captured and accused of throwing a hand grenade at U.S. soldiers, endured “cruel and inhuman” treatment and possibly “torture” while in U.S. custody, a U.S. military commission judge ruled last year, determining that his supposed “confessions” to the crime were therefore unreliable. A federal district court judge later similarly refused to admit the confessions in ruling on Jawad’s habeas corpus petition, and announced that without Jawad’s statements, the government’s case was “riddled with holes.” She eventually granted Jawad’s petition, and Jawad was released on Aug. 24 after nearly seven years in captivity, most at the U.S. detention center at Guantanamo Bay.

Despite the court’s rulings that Jawad was mistreated in U.S. custody, however, no one has ever been punished or otherwise held accountable. His lawyers say that despite repeated requests, the Defense Department never investigated whether its officers had violated the law. Jawad’s lead military lawyer, Air Force Maj. David Frakt, has released to TWI some of the details of how and why he asked the Defense Department to investigate, and how his repeated complaints about Jawad’s treatment went ignored.

Jawad now plans to sue the United States for his mistreatment, which included such extreme sleep deprivation that it appears to have violated even the rules governing interrogation tactics issued by the Bush Justice Department’s Office of Legal Counsel, which issued the now-infamous “torture memos.”  A military judge in Jawad’s case excluded his “confessions” in part on the grounds that he endured 14 days straight of sleep deprivation (by means of what came to be known as the “frequent flyer” program), which may well have amounted to torture. Justice Department memos approved up to 96 hours of sleep deprivation, although some make reference to 180 hours, which would be 11 days. But 14 days exceeds the guidelines of all of the legal memos regarding interrogations that have been revealed so far.

According to Judge Stephen Henley, the U.S. Army colonel who ruled on Jawad’s military commission case, Jawad was “moved from cell to cell 112 times from 7 May 2004 to 20 May 2004, on average of about once every three hours.” Jawad was shackled but not interrogated; “the scheme was calculated to profoundly disrupt his mental senses.”

The alleged purpose of the “frequent flyer” program, Judge Henley wrote, was “to create a feeling of hopelessness and despair in the detainee and set the stage for successful interrogations.” But by the time Jawad was subjected to it, he “was of no intelligence value to any government agency,” Judge Henley ruled. “The infliction of the ‘frequent flyer’ technique upon the Accused thus had no legitimate interrogation purpose.” (Significantly, interrogation experts say sleep deprivation doesn’t produce useful information even if the subject does know something.)

When Frakt, Jawad’s appointed military defense lawyer, learned about how the frequent flyer program was used on Jawad, he became so concerned that, as a military officer, he felt obliged to report to his superiors what he believed was evidence of a war crime. So on May 29, 2008, Frakt sent a memo to the chief defense counsel at the Office of Military Commissions.

“I am reporting a suspected LOAC [Law of Armed Conflict] violation that I have uncovered in the course of my duties as a defense counsel assigned to the Office of Military Commissions Defense,” Frakt wrote. Frakt wrote that after an exhaustive review of the facts and relevant law, he believed Jawad had been tortured — in violation of the Geneva Conventions, U.S. and international law, and Defense Department regulations. “Accordingly, I believe I have an affirmative obligation to report the incident to my chain of command,” he wrote. Frakt cited several provisions, all of which require reporting of suspected war crimes to a supervisor.

Records provided by the government in the course of the case before the military commission reveal that from May 7, 2004 until May 20, 2004, Jawad, a teenager at the time, was subjected to the program.

“During this 14 day period, Mr. Jawad was moved from cell to cell 112 times, an average of every 2 hours 50 minutes,” Frankt wrote in the memo. “There were eight extra moves of very short duration between the hours of midnight and 0200 to ensure maximum disruption of sleep.”

After sending that memo, Frakt expected to receive a response. At least, eventually. But he received nothing.

So on Oct. 7, 2008, he followed up with an e-mail to the Commander in charge at the U.S. Southern Command post, Joint Task Force for Guantanamo Bay, or SouthCom-JTFGTMO. He cc’d four lawyers in the Pentagon’s Office of General Counsel.

In his email, Frakt wrote:

On 29 May, I filed this LOAC violation memo with the Chief Defense Counsel, COL David. He forwarded the memo to your office on or about 1 June. Presumably your office forwarded it to SOUTHCOM. I have never received any information about the investigation.

The military judge in the Jawad case recently found that Jawad was subjected to the frequent flyer program, and that it constituted “abusive conduct and cruel and inhuman treatment.” (see attached ruling) He found it unnecessary to decide whether the conduct rose to the level of torture but did find that the action was intended to seriously disrupt the mental senses, which is one of the elements of psychological torture. He recommended disciplinary action for this “flagrant misbehavior”. [Confidential testimony from Guantanamo officer indicated] that the program was standard operating procedure, was carried out on many detainees as part of the camp “incentives program” and was personally approved by Col Nelson Cannon (now Maj Gen) and Brig Gen Jay Hood (now Maj Gen). Please provide me with an update on the status of the mandatory LOAC violation investigation or direct me to the appropriate officials who can respond to this inquiry. If you need any further supporting documentation to assist you in the investigation, please let me know. Thank you very much.

Frakt received no response. In January of this year, he sent another e-mail to the same Commander and a Captain at Joint Task Force-Guantanamo, and the same set of lawyers in the Pentagon’s General Counsel office.

It read, in part:

It has now been over seven months since this report was filed. I have never received any update on the status of the mandatory LOAC violation investigation. In the interim, the Military Commission has determined that the violation did, in fact, occur and that “under the circumstances, subjecting [Mr. Jawad] to the ‘frequent flyer’ program from May 7-20, 2004 constitutes abusive conduct and cruel and inhuman treatment.” In other words, Mr. Jawad was abused, in clear violation of the Geneva Conventions. The commission has specifically recommended that “those responsible should face appropriate disciplinary action.” (See attached Ruling D-008)

Upon receipt of a LOAC violation report, a formal investigation is mandatory and should be done by the most expeditious means available. However, it does not appear that the DoD Directive was followed because I have never been contacted by anyone regarding my report. Please confirm whether JTF-GTMO or SOUTHCOM investigated this incident, and provide me with an update on the status of this investigation or direct me to the appropriate authority at USSOUTHCOM who can answer this query. If I do not receive a satisfactory explanation, I intend to pursue this matter with the appropriate Inspector General offices. Thank you very much for your prompt attention.

V/R

David J. R. Frakt, Major, USAFR

To this day, says Frakt, he has not hear back from the Defense Department as to whether anyone investigated the abuse and potential war crimes violation.

The Defense Department and US-SOUTHCOM-JTFGTMO did not respond to TWI’s request for comment. TWI has other outstanding requests for comment from the the Defense Department, including an explanation of why the department stopped reporting the deaths of detainees in U.S. custody in Iraq and Afghanistan, and a statement of the current policy of reporting those deaths. Despite at least half a dozen requests, TWI has never received an answer.

But then he went on to say, as Glenn Greenwald tweeted yesterday, that “I think the interrogations were in violation of the Geneva Conventions and the Convention Against Torture that we ratified under President Reagan.”

Now, once you acknowledge that the CIA, at the direction of senior cabinet officials, violated international humanitarian law that requires the United States to prosecute the perpetrators, the only way to justify not investigating is to say that the executive branch of government is above the law — or, put more pragmatically, that it’s politically too messy to investigate senior leaders in the U.S. government.

Republicans didn’t hesitate to investigate when it involved Democratic President Bill Clinton, however, or to bring charges against him for lying about a personal matter. And Congress didn’t turn its backs on the Iran-Contra scandal during the Reagan administration, which led to 14 senior officials charged with crimes, and 11 convictions. And of course the Watergate affair led to the indictment and conviction of senior Nixon administration officials, and impeachment charges against the president. Congressional investigations of sitting and past administrations are far from unprecedented.

So how does McCain explain why we ought to forget the whole torture problem — which led to the deaths of a still-unknown number of detainees in custody, some of whom the CIA still can’t account for — even as he acknowledges that it violated international treaties that legally obligate us to prosecute?

“I think these interrogations helped al-Qaeda recruit,” McCain said yesterday, adding: “the damage that it did to America’s reputation in the world we’re still on the way to repairing.”

Even setting aside the legal requirements, as a practical matter, a public acknowledgment and investigation would seem to be the only way to repair that damages.

As McCain put it: “This is an ideological struggle as well as a physical one.”

–

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On the same day that the government produced the 2004 CIA inspector general’s report on interrogations, it also turned over seven more memos and letters from the Justice Department’s Office of Legal Counsel. The memos released on Monday were the Justice Department’s legal justifications for continuing to use those controversial interrogation techniques, despite a new law passed by Congress and an intervening landmark Supreme Court ruling that governs U.S. detentions overseas.

The Office of Legal Counsel is where John Yoo and Jay Bybee, beginning in 2002, wrote a series of what came to be called the “torture memos,” defining torture so narrowly and the law so permissively that near-drowning, prolonged sleep deprivation, stress positions and many more “enhanced interrogation techniques” were deemed legal. Yoo also concluded that the Bill of Rights didn’t apply to certain executive action during wartime, even in the United States.

Illustration by: Matt Mahurin

The more recent documents, written by Steven Bradbury, who became acting assistant attorney general and head of the OLC in 2005, were the Justice Department’s attempts to deal with the ways the law had changed in the intervening years – and the clarifications from the Supreme Court that certain basic international laws, like portions of the Geneva Conventions, do apply to terror suspects held abroad.

What experts say is surprising about the 2006 and 2007 memos released on Monday, however, is how little the legal analysis changed, despite the new legal backdrop that had emerged, and how selectively the lawyers chose which laws and cases to apply.

In 2005, after photographs surfaced showing U.S. troops abusing Iraqi inmates at the Abu Ghraib prison in Baghdad, Congress passed the Detainee Treatment Act specifically to outlaw the “cruel, inhuman or degrading treatment” of detainees that was plain for all to see. The next year, the Supreme Court ruled in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applies to “war on terror” detainees. Attorney General Alberto Gonzales had famously called the Geneva Conventions a “quaint” relic of the past.

But the CIA still wanted to use many of the controversial interrogation techniques it had adopted, based in part on the advice of two psychologists and businessmen with no interrogation experience. In particular, as is set forth in the recently released Office of Legal Counsel memos, the CIA still wanted to use six techniques, including prolonged sleep deprivation, food deprivation, shackling, forced standing in stress positions, and a variety of “corrective techniques” that include physical slaps and grabs – all of which would be used alone, or in combination.

Despite the intervening change in the legal landscape, legal experts who have reviewed the memos say that strangely, the analysis remained essentially the same.

“It’s surprising how little the analysis in this memo changed from the past memos, notwithstanding the passage of the [Detainee Treatment Act] and the Supreme Court’s decision in Hamdan,” said American Civil Liberties Union national security project lawyer Alex Abdo.

The July 2007 opinion, for example, analyzed whether prolonged sleep deprivation for up to 96 straight hours (or 180 hours in a 30-day period) while a prisoner is forced to stand, shackled, in diapers, and eventually in his own urine and feces violates the Detainee Treatment Act and Geneva Conventions’ prohibitions on “cruel, inhuman and degrading treatment”.

The Justice Department lawyers concluded that it does not violate either law, even if the sleep deprivation is combined with restriction to a 1,000-calorie-a-day diet (half the recommended daily human intake) of liquid formula, and with “corrective techniques” such as the “facial hold,” “facial slap,” and “abdominal slap”.

The rules are not violated because the CIA has determined that such techniques are “safe”, concludes the memo, meaning they cause no “serious,” permanent or long-lasting injury.

The lawyers are confident of that conclusion because “the CIA adapted each of the techniques from those used in the United States military’s Survival, Evasion, Resistance, and Escape (“SERE”) training,” which is “designed to familiarize U.S. troops with interrogation techniques they might experience in enemy custody and to train these troops to resist such techniques.”

Although the lawyers recognize “that a detainee in CIA custody will be in a very different situation from U.S. military personnel who experienced SERE training, the CIA nonetheless found it important that no significant or lasting medical or psychological harm had resulted from the use of these techniques on U.S. military personnel over many years in SERE training.”

That’s the same reasoning the OLC used to justify waterboarding and other techniques in its Aug. 1, 2002 memo.

The Aug. 31, 2006 Office of Legal Counsel memo goes on to say that the techniques don’t “shock the conscience” – the same standard the lawyers used in 2005 to say the CIA’s interrogation techniques didn’t violate the international Convention Against Torture.

In effect, in the Justice Department’s view, despite the new law and Supreme Court interpretation, nothing had changed.

“Especially following the DTA you’d think it would no longer be okay to beat someone up for information,” said Abdo. “At the end of the day, that for me is what this 2007 memo amounts to. The techniques of sleep deprivation, dietary manipulation—you’d think that was precisely what Congress was focused on when it passed the DTA. It’s surprising how much of the techniques survived the new law,” he said. The memo is “dodging bullets fired at the CIA by Congress and the Supreme Court.”

The lawyers similarly interpreted the Geneva Conventions to add nothing new to the equation. In 2006, the Supreme Court ruled that Common Article 3 applies to detainees held by the United States overseas, notwithstanding the Bush administration’s strenuous arguments to the contrary. Common Article 3 requires the “humane treatment” of all prisoners. But the July 2007 memo interprets that to not even require the U.S. government to report the prisoners’ existence to the International Committee of the Red Cross, for example.

That’s a strangely narrow reading of the Geneva Convention’s requirements, said Jamil Dakwar, an expert on international law and director of the ACLU’s Human Rights Program. In a “non-international conflict,” which is how the Supreme Court defined the United States war with al Qaeda and the Taliban, “Common Article 3 talks about allowing the ICRC to offer its services,” says Dakwar. If the government does not inform the ICRC of the prisoners’ existence, however, the organization cannot offer any services.

In general, “there’s a gap between the way the United States interpreted international law, and the way the rest of the world interprets it,” says Dakwar. “In non-international armed conflict, human rights law, such as the U.N.’s Covenant on Civil and Political Rights should be applicable,” he said. But the Bush administration said it did not apply, so it examined the techniques only as narrowly as possible under Article 3 of the Geneva Conventions. That several international courts and human rights committees have disagreed with the Bush administration’s conclusion did not alter its analysis.

The International Committee of the Red Cross in its commentaries, for example, stresses that Common Article 3 does not apply in isolation, but in conjunction with the laws of the country where the prisoners are held, and that country’s interpretations of international human rights law. In the OLC memos, however, “the assumption is that we created secret detention, we can’t operate them anywhere but in secret, so this is an excuse to ignore all other laws,” says Dawkar. “So you see here cherry-picking of what kinds of protections the detainees will be afforded.”

Even when the memos rely on U.S. law, the comparisons between terror suspects held for years in secret CIA prisons and detainees held in U.S. prisons with the full panoply of constitutional rights often don’t make sense. For example, the memos evaluate the legality of conditions of overseas detention by relying on cases interpreting the Eighth Amendment prohibition of cruel and unusual punishment, although those cases only pertain to prisoners who have been charged and convicted of a crime in a U.S. court. In these cases, although the memos repeatedly assume that the detainees are “extremely dangerous,” none has even been charged with a crime, let alone convicted of anything. Similarly, cases governing pre-trial detention conditions in the United States, where a suspect is awaiting trial and has a right to a lawyer, aren’t applicable to detainees who may be held incommunicado — unable to speak to other inmates or contact anyone in the outside world — in secret detention with no rights at all for years.

“They pick and choose Supreme Court cases that talk about Eighth Amendment law without addressing the difference in the context,” said Dakwar. “I found that amazing.”

Where the Aug. 31, 2006 memo does note a difference in circumstances, it is to emphasize that terror suspects “are not ordinary accused criminals; instead, they are extremely dangerous, and often quite sophisticated, terrorist enemy combatants detained because they pose a serious and direct threat to the national security of the United States.” The memo thereby assumes the detainees’ guilt, and justifies the conditions of detention accordingly.

The memo also dismisses the impact of being held incommunicado. “They say it doesn’t matter because they have access to books, music and movies,” notes Dakwar. “That is fundamentally unacceptable by all authorities. The fact that you have no contact with other people is the issue. Having newspapers or movies does not make the confinement less severe.”

Indeed, in in the New Yorker in March, Harvard Medical School Professor Atul Gawande cites a range of experts and torture victims, including Sen. John McCain (R-Ariz.), who refer to long-term solitary confinement as more agonizing than physical abuse and ultimately, a form of torture. (Prolonged isolation, Gawande finds, actually creates physical abnormalities in the brain.)

To compare the temporary isolation of a convicted criminal or pretrial detainee to prolonged isolation of a terror suspect in a secret overseas prison, then, makes no sense, says Dakwar. “These are two unparalleled situations,” he said.

In general, the memos “cherry-pick the law and cases that they want to apply,” says Dakwar. For example, the memos rely on interpretations by the International Criminal Court, even though the United States, and particularly the Bush administration, opposed the creation of the ICC and don’t recognize its legitimacy. “Yet it utilized those interpretations in defense of their unjustified practices.”

The other strange thing about the memos is that in parts, they analyze the conditions of the detainees’ confinement — the physical conditions of their cells and whether they were provided with food and water and allowed to sleep, for example — separately from their treatment during interrogations, which sometimes specifically included sleep and food deprivation. And portions of the conditions’ descriptions — for example, the way prisoners’ cells are illuminated 24-hours a day — are redacted, and therefore incomplete. That makes it almost impossible to consider the legality of the conditions as a whole. “Alone, a condition may not amount to a violation, but in certain circumstances, a combination of techniques and methods would constitute cruel, inhuman and degrading treatment, or could even rise to the level of torture,” said Dakwar.

Certain combinations of treatment that violate the Geneva Conventions could also rise to the level of war crimes, which may be why the Office of Legal Counsel was so eager to define all of the CIA’s actions as falling well within the bounds of international law.

If, as the latest reports indicate, Attorney General Eric Holder is serious about prosecuting the worst torture and abuse of “war on terror” prisoners that occurred during the Bush administration, then there’s some key evidence he’s going to want to take a look at:  photographs. Although Bush Justice Department prosecutors claimed they didn’t have the facts to support prosecuting anyone for the mysterious deaths and disappearances of detainees hauled out of Bagram and Abu Ghraib in body bags, the photographs – which two courts have now ordered the Obama administration to turn over – would seem likely to provide some of the missing evidence.

The photos I’m talking about are the same ones that, back in April, President Obama promised to release to the public by May. Then, after consulting with Defense Department and CIA leaders, he changed his mind. After the American Civil Liberties Union filed a Freedom of Information Act lawsuit to obtain them, the photographs were ordered released by  a federal district court in New York in 2005 and then the court of appeals in 2008; both courts agreed that the photos are critical to the public debate over torture and the U.S. government’s counterterrorism tactics, and don’t fall under any exemption to the freedom of information law. Still, the Obama administration isn’t budging.

While the case was on appeal, lawyers from the same Washington law firm that Holder was then working at, Covington & Burling, wrote a powerful brief on behalf of 22 legal experts on the laws of war arguing for the photos’ release. These sorts of images are in part responsible for the regime of international humanitarian law that we have today, they argued.

The cornerstone of modern international humanitarian law — the Geneva Conventions of 1949 — was adopted after the release of vivid images of Nazi concentration camp survivors. And it was the United States and General Dwight D. Eisenhower himself who insisted on distributing huge volumes of these photos to the media. The images of corpses, prisoner remains and emaciated survivors helped persuade nations around the world to develop and adopt new universal humanitarian norms.

It’s because images can be so powerful and can motivate action that the Obama administration now wants to suppress them.

On Friday, the Justice Department filed a petition with the Supreme Court arguing that releasing the photos of detainee abuse would so inflame public opinion against the United States abroad that it would endanger the lives of U.S. soldiers stationed in Iraq and Afghanistan.

(Initially, the government refused to turn them over on the grounds that they would violate the privacy rights of the detainees. After the ACLU and the court agreed to have the photos redacted to conceal identifying information and protect personal privacy, the government came up with this second reason to object.)

On its face, the argument sounds pretty reasonable. I have to admit that when the administration first announced its change of heart, though Glenn Greenwald, Andrew Sullivan and many others were immediately outraged, I was somewhat sympathetic. After all, the Freedom of Information Act does include an exception to releasing information if it would reasonably be expected to “endanger the life or physical safety of any individual.” The photos of abuse at Abu Ghraib were certainly alarming. And who would want to endanger the lives of U.S. troops?

Meanwhile, the Justice Department had collected sworn statements from top military generals — including General Richard Myers, then the Chairman of the Joint Chiefs of Staff and the Nation’s highest ranking military officer — saying that releasing the photos would do just that. Who are we to question the top brass?

Amrit Singh, an ACLU lawyer handling the case, answered that for me yesterday. “The argument the government has put forward is unacceptable because it would afford the greatest protection from disclosure to records that depict the worst kind of government misconduct. That is fundamentally inconsistent with FOIA. And it’s fundamentally inconsistent with democracy.”

It’s a good point. Though I want to protect our troops as much as anybody, it turns out the law wasn’t drafted to protect Americans from retaliation that might result because their country did something illegal, or even just really embarrassing. If it were, then evidence of any illegal or upsetting U.S. government conduct would be exempt from disclosure. And that would defeat the entire purpose of the Freedom of Information law.

According to the Supreme Court, the purpose of FOIA is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” So you can see how that would be seriously compromised by the government’s interpretation of the law here.

It turns out that when you look at the language of FOIA, the government’s interpretation doesn’t make much sense either.

Exemption 7(f) allows an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to endanger the life or physical safety of any individual.”

But does “any individual” mean any conceivable individual out there, or some specific individual that the government can identify?

The appeals court ruled that because Congress said the release must endanger “any individual” rather than just “endanger life or physical safety” generally to be considered exempt, Congress must have meant some identifiable individual – a particular witness to a crime or subject of a law enforcement investigation, for example. If Congress had meant to include any member of a group of people who could possibly become the target of someone’s anger, it would have used the more general phrase, the court reasoned. So the court ruled the exemption doesn’t apply, and the Obama administration has to turn over the photographs.

Now, the administration faces a dilemma. When it released the Office of Legal Counsel memos written by the now-infamous John Yoo authorizing the administration to torture prisoners abroad, it wasn’t prepared for the media firestorm that erupted — and the growing public pressure to prosecute. Reluctant to face that again, Obama and senior officials in his administration are trying hard now not to stoke the fires. (Even if they can go along with a limited prosecution along the lines of what Holder has described, they certainly don’t want to face calls for prosecuting senior Bush officials.)

But it looks like they can’t legally stop this release.

Sill, they can delay it. Supreme Court review could delay the case months or even years, depending on what the court decides to do. In the meantime, other reports will be released about the Bush era anti-terror tactics. Those include the Senate Intelligence committee’s investigation led by Sen. Dianne Feinstein (D-Calif.), the report from the ethics division of the Justice Department, the Office of Professional Responsibility, on the work of the Justice Department lawyers who crafted the memos, and, of course, the 2004 CIA inspector general report I wrote about earlier that’s supposed to be released by Aug. 24.

Which raises the question whether the government will invoke Exemption 7(f) of FOIA to try to withhold that report. After all, couldn’t the government make the exact same argument about the CIA report that it’s making about the photos? You see the slippery slope we’re on.

The CIA report apparently describes cases of murder and abuse so horrific that Holder was moved to consider initiating prosecutions. And that’s despite the fact that the Justice Department under President George W. Bush investigated those cases, but decided not to prosecute them. That report must be pretty upsetting.

So don’t be surprised if we start hearing that we shouldn’t be allowed to see that one either, because someone somewhere might get hurt.

The administration could, of course, try to distinguish the report from the photographs, arguing that, essentially, a picture is worth a thousand words. The photos may be just too powerful.

When faced with the atrocities of the Nazi concentration camps at the close of World War II, Eisenhower found that words failed him:

I have never felt able to describe my emotional reactions when I first came face to face with indisputable evidence of Nazi brutality and ruthless disregard of every shred of decency. Up to that time I had known about it only generally or through secondary sources. I am certain, however that I have never at any other time experienced an equal sense of shock . . . as soon as I returned to Patton’s headquarters that evening I sent communications to both Washington and London, urging the two governments to send instantly to Germany a random group of newspaper editors and representative groups from the national legislatures. I felt that the evidence should be immediately placed before the American and British publics in a fashion that would leave no room for cynical doubt.

-Dwight D. Eisenhower, Crusade in Europe (1977), at 408-09.

One can only conclude that the Obama administration is taking refuge in that doubt, or is not prepared to face the consequences in this country once the veil of doubt is lifted.

As David Remes, executive director of Appeal for Justice who represents about a dozen Yemeni detainees at Guantanamo, explained to me earlier today, “If you look at the fine print of the Obama refined definition, you’ll see it’s limited to this litigation,” referring to the habeas cases. In the meantime, Obama has set up a team of people — a detainee policy task force — to study and consider and decide what U.S. detention policy should be going forward. “So it could be different than what DOJ has argued in the habeas cases,” says Remes.

But will it be?

National security and civil liberties experts like Kate Martin, director of the Center for National Security Studies, and Ken Gude at the Center for American Progress are among the many lawyers urging a far narrower interpretation that would be limited to the right to detain fighters picked up on the battlefield.

Of course, there’s the question of how to define the battlefield.  But Martin and Gude, in the memo they sent to the detainee policy task force, point out one way that seems to make perfect sense: rely on the military’s definition of the scope of its combat operations.

“As two retired JAG officers have explained, when the military is operating with rules of engagement pursuant to the law of war, such circumstance defines the ‘battlefield’ and the extent of combatant detention authority,” they write, citing a paper by Geoffrey S. Corn and Eric Talbot Jensen.

“There’s a clear line,” says Martin. “When the military is authorized to shoot to kill, they have detention authority. But otherwise you have to try them.”

Remes points out that you still have the problem of defining who’s a fighter, an issue which comes up in all the habeas cases. To some extent that will have to rest with the military, and then with whatever proceedings it affords detainees to challenge their detention. (If they’re in the United States or at Guantanamo Bay, of course, detainees also have the right to challenge their detention in federal court.)

These limits still may not satisfy some civil and human rights experts, as Spencer points out. They make a strong argument that the laws of war apply to conflicts between states, not conflicts between a state and a terrorist organization. As Gabor Rona, international legal director of Human Rights First, put it to me recently, the Geneva Conventions “presumed that where it’s a non-state armed group you’re fighting against it will be domestic law that applies, because those people are all criminals. Unlike in an international armed conflict, the privilege of belligerency doesn’t apply.”

There may never be a meeting of the minds between the Rona and Martin, or what I’ll call the strict civil libertarians and the pragmatists. But given that the federal courts so far have accepted that the United States is engaged in a “war” of some sort with certain terrorist groups and seem willing to define at least some of those fighters as “enemy combatants” (or whatever the Obama administration is calling them now), it’s hard to imagine that Obama — not one to give up authority easily — will completely walk away from that paradigm in the future.

What seems the more pressing question now is whether the administration will continue to push for the extremely broad view of its war powers that it’s advocated in Guantanamo habeas cases — the same definition that allowed the Bush administration to snatch and indefinitely detain without charge anyone suspected of supporting al-Qaeda or the Taliban anywhere in the world — or if they’ll be willing to restrict their powers to a more logical and limited reading of international law.

Alternatively, will advocates for a whole new system of preventive detention — such as Neal Katyal, now Deputy Solicitor General; Robert Chesney, a law professor at Wake Forest University spending the summer on the Detainee Policy Task Force; Jack Goldsmith at Harvard; and Benjamin Wittes at Brookings — persuade the administration that it needs Congress to pass new legislation to move beyond the laws of war, so that it does have authority to indefinitely detain without charge terror suspects seized anywhere in the world?

I know that’s not what the strict civil libertarians are advocating. But I wonder if, by refusing to recognize the applicability of the laws of war at all, they’re actually (though unintentionally) encouraging a far more radical solution.

President George W. Bush (WDCpix)

A wealth of new details emerged Tuesday about how techniques designed to help captured U.S. troops resist torture formed the basis for the post-9/11 interrogation policies of the Bush-era Pentagon.

Instructors of those techniques proved to be eager in 2002 and 2003 to disseminate them to an emerging crop of inexperienced military interrogators facing the prospect of wresting information out of new captives. “I believe our niche lies in the fact that we can provide the ability to exploit personnel based on how our enemies have done this type of thing over the last five decades,” said Joseph Witsch, an instructor for the Joint Personnel Recovery Agency (JPRA), a component of U.S. Joint Forces Command that oversees the so-called Survival, Evasion, Resistance and Evasion (SERE) program for U.S. special forces, during a 2002 training session for U.S. military interrogators, according to a newly released report.

Illustration by: Matt Mahurin

Details like these came to light when an unclassified version of a Senate Armed Services Committee report on the Pentagon’s treatment of detainees in the war on terrorism (pdf) was made public late Tuesday. An unclassified executive summary of the report, released in December, gave the outlines of the narrative, an account of how extreme interrogation techniques never before considered legal for U.S. personnel to apply became widespread within the military. But the full extent of the story was unclear from the 21-page summary of the 200-page report.

JPRA, a previously obscure outpost inside the military command responsible for making the U.S. military services fight as a single entity, first emerged last year in committee hearings as a key element in the United States’ embrace of physical interrogation methods. Responsible for overseeing the SERE program around the military services, in which instructors in very controlled conditions teach U.S. troops how to endure and resist torture in enemy captivity. Such techniques, used by the Chinese and North Korean communist regimes, include waterboarding, sleep deprivation, and forced exposure to extremes of temperature — all of which were recommended by JPRA and SERE officials to U.S. interrogators.

Instructors in the SERE program and their overseers in JPRA are not trained interrogators. Before 9/11, SERE and JPRA never focused on applying their resistance training to interrogate captured enemies. “SERE instructors are not selected for their roles based on language skills, intelligence training, or expertise in eliciting information,” the committee report specifies.

Yet after 9/11, with President Bush’s declaration that the Geneva Conventions would not apply to al-Qaeda and Taliban captives, the Pentagon’s then-general counsel, Jim Haynes, began asking JPRA how SERE’s expertise could assist U.S. interrogators, a relatively small U.S. military cohort. JPRA officials, eager to help with U.S. military efforts against al-Qaeda, sought to help with minimal prompting. Col. John “Randy” Moulton proposed in February 2002 that JPRA send a team to the newly established detention and interrogation facility to create a “short course” about “interrogation from the resistance side.” It would be the first of several such courses developed throughout 2002 and 2003, in which JPRA and its SERE “resistance” experts helped U.S. military and, in some cases, CIA interrogators, “reverse-engineer” SERE procedures for use on detainees in Guantanamo Bay, Afghanistan, Iraq and, perhaps, the network of CIA secret prisons where the agency held “high-value” al-Qaeda captives.

A key figure is a SERE psychologist named Bruce Jessen. The chief psychologist frequently advised officials at Guantanamo Bay and the emerging cadre of U.S. interrogators in techniques designed to break U.S. soldiers. In April 2002, he created a Guantanamo Bay “exploitation draft plan” to provide SERE training to Guantanamo interrogators under his direction. He proposed the creation of an “exploitation facility” at Guantanamo that would be “off limits to non-essential personnel,” such as the press, the International Committee of the Red Cross, or foreign observers. He advised that “the “the only restricting factor” on what techniques interrogators ought to be permitted to employ “should be the Torture Convention,” though he defended the use of physical force in interrogations. He repeated that message to interrogators and Guantanamo officials throughout 2002.

The influence of Jessen and SERE was not limited to military interrogations. In July 2002, the Senate report discloses, he was sent to “another government agency” to offer advice; and a JPRA team assisted a squad from “another government agency” during the first six months of 2002 that would be “sent to interrogate a high level al Qaeda operative.” “Another government agency” is a widespread euphemism for the CIA. The month after Jessen went to advise the undisclosed agency, the Justice Department’s Office of Legal Counsel issued a secret memorandum, disclosed last week, instructing the CIA as to what interrogation techniques it considered to fall short of statutory prohibitions on torture. It summarized what the CIA proposed for its interrogation of Abu Zubaydah, considered to be the highest-ranking al-Qaeda member in U.S. custody. “Zubaydah will have contact only with a new interrogation specialist, whom he has not met previously, and the Survival, Evasion, Resistance, Escape (“SERE”) training psychologist who has been involved with the interrogations since they began,” wrote Jay Bybee, the head of OLC, in an August 1, 2002 memorandum. It is unclear but likely that Jessen is the psychologist to which Bybee refers.

JPRA and SERE officials thought of themselves as a unique trove of information and training for U.S. interrogators. The report quotes one official as saying, “JPRA has the sole repository of the required skill set” for interrogating detainees, even though the FBI has interrogated criminals for over 100 years. At an interrogation training session in the summer of 2002, with Guantanamo officials present, SERE officials “drafted a memo proposing the use of physical and psychological pressures at [Guantanamo], including some pressures … that do not follow the Geneva Conventions,” according to the report.

Around that time, an aide to Pentagon chief lawyer Haynes, David Shiffrin, requested JPRA’s deputy commander to send him memoranda outlining what techniques SERE graduates had to endure. The response included “the facial slap, walling, the abdomen slap, use of water, the attention grab and stress positions.” One attached memo used the phrase “physical and/or psychological duress” interchangeably with “torture,” the report says.

By September 2002, Pentagon officials and Guantanamo interrogators had grown “frustrated” with their inability to collect as much useful intelligence from interrogations as they had expected from Guantanamo detainees, according to the report. A JPRA-sponsored training session for interrogators that month introduced the concept of exploiting “phobias” and playing off cultural sensitivities of Arabs and Muslims. JPRA instructor Joseph Witsch warned a superior, “We are out of our sphere when we begin to profess the proper ways to exploit these detainees,” but the training continued. Witsch later acknowledged to a Pentagon working group on interrogations, “The physical and psychological pressures we apply in training violate national and international laws. … I hope someone is explaining this to all these folks asking for our techniques and methodology!”

Several Pentagon officials were asking for precisely that. A “Behavioral Science Consultation Team” established at Guantanamo and in frequent contact with SERE advisers counseled a Guantanamo working group on whether the interrogators had “authorization to use interrogation approaches that had not been taught to interrogators” at the U.S. Army’s intelligence center and were not contained in its Field Manual on interrogations. One SERE adviser told the BSCT, “Bottom line: the likelihood that the use of physical pressures will increase the delivery of accurate information from a detainee is very low.” Yet the working group approved a decision — over some BSCT and SERE reservations — to recommend the use of expanded techniques on a high-value detainee named Mohammed al-Qatani that were “influenced by SERE,” according to the report.

That request went up through the chain of command in October, ultimately reaching Defense Secretary Donald Rumsfeld in December 2002. The report documents Haynes’ ability to stop a review of the techniques’ legality by a legal adviser to the Joint Chiefs of Staff, after representatives of the uniformed military made it clear that they considered the techniques to be illegal. As has been documented in numerous Pentagon inquiries stretching back to 2004, Rumsfeld ultimately recommended in April 2003 the use of several extreme interrogation techniques, including stress positions, dietary manipulation, “long time standing” and other techniques that are now revealed to have originated from SERE. Similarly, while Rumsfeld declared that those techniques were applicable only to “military and civilian interrogators assigned to Joint Task Force Guantanamo Bay, Cuba,” the extreme pressure for intelligence in Iraq later that year sent Guantanamo Bay’s commander, Maj. Gen. Geoffrey Miller, to Iraq, where he delivered a list of Guantanamo-approved techniques to the Iraq war commander, Lt. Gen. Ricardo Sanchez, with the explicit instruction to “Gitmo-ize” intelligence operations. A 2004 report by former Defense Secretary James Schlesinger found that instruction to be a central cause of the torture at the Abu Ghraib detention facility in late 2003.

The release of the Senate Armed Services Committee report comes on the heels of Thursday’s disclosure of four long-secret Justice Department documents outlining CIA interrogation techniques. Sen. Carl Levin (D-Mich.), chairman of the committee, explained in a statement that the two rounds of disclosure were coincidental. The Defense Department had been combing through the report since November 20 and only now approved it for release, Levin said, with some significant redactions of operational and other detail.

“The record established by the Committee’s investigation shows that senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Levin said. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses. As the Committee report concluded, authorizations of aggressive interrogation techniques by senior officials resulted in abuse and conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody.”

President George W. Bush (WDCpix)

The release last week of Bush-era legal memoranda justifying the Central Intelligence Agency’s use of extreme interrogation methods has opened a window on what former Vice President Dick Cheney famously called “the dark side” of the war on terrorism. But despite President Obama’s declaration that releasing the four Justice Department memos disclosed Friday would end “a dark and painful chapter in our history,” at least one other memorandum on CIA interrogations remains undisclosed: a 2007 opinion from the Justice Department’s Office of Legal Counsel on what a new interpretation of the Geneva Conventions’ Common Article 3 meant for the agency’s “enhanced interrogation program.”

Illustration by: Matt Mahurin

A former senior intelligence official, who would not speak for the record, said that in 2007, the head of the Justice Department’s Office of Legal Counsel, Steven Bradbury, issued a still-secret memorandum authorizing an updated CIA interrogation regimen. The Justice Department issued the document after months of internal Bush administration debate, a Supreme Court decision in 2006 that extended protections from Common Article 3 of the Geneva Conventions to enemy combatants in U.S. custody, a piece of new legislation responding to the Court’s decision and a presidential executive order on interrogations.

“The CIA still seems to want to get authority to interrogate people outside of what would be found to be a violation of the Geneva Conventions and the law,” said Michael Ratner, president of the Center for Constitutional Rights, who cautioned that he had not previously known about the 2007 memorandum.

The still-unreleased Office of Legal Counsel memo spelled out for the CIA what interrogation practices were considered lawful after President Bush issued an executive order on July 20, 2007 that sought to reconcile the CIA’s interrogation program with the Geneva Conventions’ Common Article 3, which prohibits inflicting “outrages upon personal dignity, in particular humiliating and degrading treatment” upon wartime detainees.” The Supreme Court, in 2006′s Hamdan v. Rumsfeld decision, ruled that Common Article 3 protections applied to enemy combatants in U.S. custody, a determination that the Bush administration had resisted since creating its post-9/11 detention and interrogation policies. Congress in 2006 responded by passing the Military Commissions Act, which reserved for the president the right to define the applicability of Common Article 3 protections for detainees in the war on terrorism. Bush’s order, known as Executive Order 13440, determined that the the CIA’s interrogation program fit within Common Article 3, provided that it met certain criteria, such as the exclusion of practices like “murder, torture, cruel or inhuman treatment, mutilation or maiming.”

But the order did not define which interrogation techniques it now considered legal. Anonymous Bush administration officials told reporters on the day of the order’s release, “it would be very wrong to assume that the program of the past would move into the future unchanged.” As a result, according to the former senior intelligence official, after Bush issued the order, the CIA again asked the Justice Department’s Office of Legal Counsel to review the techniques listed in the revised interrogation program in order to determine their legality, just as the Office of Legal Counsel had done in 2002 and 2005, after previous periods of challenge to the post-9/11 interrogation program.

“The agency repeatedly sought and repeatedly received written assurances from the Department of Justice that its interrogation practices were lawful,” said CIA spokesman Paul Gimigliano. “As others have noted, the detention and interrogation program changed over the years as changes arose in the legal landscape. That included the interpretation of Common Article 3. CIA was proactive in requesting guidance and it was proactive in making changes.”

Hannah August, a spokeswoman for the Department of Justice, said the department had no comment on the 2007 memo.

The Washington Independent has filed a Freedom of Information Act request for the 2007 Office of Legal Counsel document and is awaiting word from the Justice Department about the status of the request. FOIA requests can take years to fulfill. In January, President Obama issued an executive order instructing federal agencies to comply expeditiously with such requests. He also withdrew Executive Order 13440 that same month — while he ordered a year-long review of interrogation and detention practices and restricted all interrogations to occur in compliance with the Geneva Conventions-compliant Army field manual.

The former senior intelligence official would not describe what the 2007-era interrogation regimen contained, nor would the ex-official characterize the Office of Legal Counsel’s advice. In the past, according to the newly disclosed memos written in 2002 and 2005, the Office of Legal Counsel relied on claims that the president has inherent constitutional authority in a time of war to order enhanced interrogations; that techniques like waterboarding, sleep deprivation and 18-hour placement in a “confinement box” were not torture; and that use of such techniques in combination with each other still fell short of statutory prohibitions on “cruel, inhuman or degrading treatment.”

A statement from Sen. Jay Rockefeller (D-W.Va.), then the chairman of the Senate Select Committee on Intelligence, on the day of Executive Order 13440′s release demanded that “the Department of Justice provide the Committee with its full legal analysis” of the order. Rockefeller appears to be the only public official to issue a statement indicating the Justice Department conducted such an analysis.

Several aspects of Bush’s 2007 order were not defined precisely in the text. Executive Order 13440 prohibited “willful and outrageous acts of personal abuse” only if they were conducted “for the purpose of humiliating or degrading” a detainee, but was agnostic about whether humiliation or degradation occurring as a side effect of such acts was permissible. It similarly prohibited “acts intended to denigrate the religion, religious practices, or religious objects of the individual” but did not specify what these acts were, nor whether it was permissible to engage in an interrogation technique whereby religious denigration occurred but was not a specific goal of the technique.

In a speech to the Council on Foreign Relations in September 2007, then-CIA Director Michael Hayden defended the CIA’s re-authorized interrogation program as legal. “I don‘t know of anyone who has looked at the Army Field Manual who could make the claim that what’s contained in there exhausts the universe of lawful interrogation techniques consistent with the Geneva Convention,” Hayden said.

Ratner of the Center for Constitutional Rights said the 2007 Office of Legal Counsel memo raised questions about why the CIA felt it needed expanded authorities for interrogation by 2007. “What we don’t know is whether, after Hamdan, that 2007 memo modifies what the CIA is able to do in interrogation techniques,” he said. “But what’s more interesting is why the CIA thinks it needs to use those interrogation techniques,” he said, noting that the Bush administration released 14 detainees from its network of secret detention facilities months before the 2007 memo was issued.

“Who are they interrogating in 2007?” Ratner said. “Who are they torturing in 2007? Is that they’re nervous about going beyond what OLC has said? These are secret-site people. Who are they? What happened to them?”

It is unclear if the Senate Select Committee on Intelligence, which opened an investigation last month into the CIA’s post-9/11 detention and interrogation programs, has seen the memorandum. A Hill source familiar with the investigation and not cleared to speak with the press did not specify what documents the committee has viewed, but said, “What we haven’t seen to date, we’re likely to see in our study.” That committee is expected to complete its review in the “next six to eight months,” chair Sen. Dianne Feinstein (D-Calif.) said in a letter to President Obama on Monday.

You never tell your enemy what you know or what you’re going to do, and this is an example. Regardless of the fact that there may have been hints about this in various news publications, it’s official now that this is what the United States does or doesn’t do, and it gives our enemies a chance to be appropriately informed and appropriately prepared for being prisoners of the United States. And so we’re telling the world what we do. And so any information you hope to get from  prisoners, you aren’t going to get.

It’s interesting to note that about an hour before Grassley made these comments, Sen. John McCain (R-Ariz.), himself a subject of wartime torture, reiterated his view that the information Grassley fears will be lost is worthless anyway.

I can assure you that once enough physical pain is inflicted on someone they will tell that interrogator whatever they think they want to hear.

Adm. Patrick Walsh reported that based on more than 100 interviews over 13 days, inspections of all the camps at the prison and observation of daily operations, “it was apparent that the chain of command responsible for the detention mission at Guantanamo consistently seeks to go beyond the minimum standard in complying with Common Article 3,” he said. “We found that the chain of command endeavors to enhance conditions in a manner as humane as possible, consistent with security concerns.”

Advocates for the detainees such as the Center for Constitutional Rights, however, were not convinced.

“The men at Guantanamo are deteriorating at a rapid rate due to the harsh conditions that continue to this day, despite a few cosmetic changes to their routines,” said CCR staff attorney Pardiss Kebriaei in a statement released yesterday. “They are caught in a vicious cycle where their isolation causes psychological damage, which causes them to act out, which brings more abuse and keeps them in isolation. If they are going to be there another year or even another day, this has to end.” The advocates have released their own report on conditions at the prison.

Of course, both things could be true. Men who are abducted, beaten, hooded, flown across the world and thrown in a rudimentary cage-like prison, subjected to “extreme” interrogations and held for up to seven years without charge aren’t likely to be all that cooperative after a while. Their captors may well believe that isolating the men will ensure security, even if it contributes to destroying the prisoners’ mental health. And whether isolation, force-feeding someone who’s trying to starve himself to death, or not letting a prisoner out in the sunshine violates the Geneva Conventions’ ban on “humiliating and degrading treatment” is arguable.

But that seems to be missing the point. The controversy over conditions at Guantanamo really raises two key questions.

First, if the Pentagon is so proud of the conditions at Guantanamo, why not let human rights advocates and journalists in to see it, as they’ve requested? So far, access has been extremely limited, and the lawyers have to count on descriptions of conditions and treatment from their clients, who may have an incentive to exaggerate the deficiencies and abuses, or who, after all this time in prison for crimes they may never have committed, may have truly lost their minds. Allowing independent human rights advocates and journalists to see the prison and interview detainees — and maybe even installing an independent human rights monitor at Guantanamo to observe and make recommendation on how to improve it until it’s closed — could go a long way toward both making the prison a more humane and constructive place, and would give the Obama administration some credibility on an issue that it claims to care about.

Second, the administration needs to move quickly to send more of those prisoners home if they don’t have evidence to warrant holding them. Yesterday, the Pentagon released Binyam Mohamed, the Ethiopian-born U.K. resident picked up in Pakistan and flown to Morrocco, where he says he was interrogated under torture before being sent to a CIA prison in Afghanistan and then to Gitmo. Mohamed was held there for more than four years because the Bush administration alleged he was plotting with al Qaeda to set off bombs in the United States. The charges against him, however, were eventually dropped. Almost seven years after his capture, he was allowed to return home.

Compared to some of the other Gitmo prisoners, Mohamed is lucky. Because he was from the United Kingdom, the United States was able to negotiate his release. Many more are still being held, even if the United States has little to no evidence against them — sometimes even after it is determined they’ve done nothing wrong. Just last week, a the U.S. Court of Appeals for the District of Columbia ruled that a federal judge had no authority to release into the United States the 17 Chinese Muslim Uighurs who are stuck at Guantanamo and have never been charged, but can’t return home for fear of persecution by Chinese authorities. Only the executive has the authority to release them into the United States, the court ruled.

The fact that innocent men are still being held in prison weeks after a new administration has taken over with the promise to restore the rule of law is astonishing. Sure, President Obama has a crashing economy to worry about  among other things. But as Obama put it himself on the campaign trail, when Sen. John McCain (R-Ariz.) threatened to cancel a debate to attend congressional negotiations on a bank bailout bill: “Presidents are going to have to deal with more than one thing at a time.”

Fortunately, the president has a large staff of highly capable people to help him out.  It’s time for Obama to make good on his promises.