Alexander pulls together an extensive library of resources on best practices in interrogations that effectively refute the dubious claim that interrogations have to be brutal to be effective. One of his featured documents is “Educing Information,” a multi-volume behavioral-science research study of legal interrogation methods from 2006 that in 2009 led the Obama administration to establish its High-Value Detainee Interrogation Group, or HIG, a group of the government’s best interrogators operating in accordance with the best-practices outlined in the study. (On a personal note, it was also the subject of my first-ever Washington Independent piece, way back in January 2008.)

Probably still best not to try any of this stuff at home.

That’s been a concern of Holt’s for a while. He’s argued that not only will videotaping interrogations function as a measure to prevent detainee abuse, but it’ll create a useful lessons-learned library for training interrogators or honing their skills. Last October, he got a measure requiring the videotaping into the conference report for the defense appropriations bill.

“The Pentagon’s long awaited regulation of the provision I secured in last year’s National Defense Authorization Act continues the process of putting our detainee policies back on sound legal footing while improving our ability to get actionable intelligence,” Holt said in response to a request for comment from TWI (and subsequently emailed out in a press release). “As President Obama and local law enforcement officials across the country already know, we get better intelligence and protect both the interrogator and the person being interrogated by requiring recordings.”

The government had produced the transcripts with heavy redactions that largely concealed the detainees’ claims that they were abused and tortured during interrogations.

In August, the government argued to the court that it should be allowed to continue to redact the documents, because releasing the information in them would reveal “intelligence sources and methods” and might aid enemy “propaganda.”

Today, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia refused the ACLU’s request that he review the documents privately in his chambers to determine if they should remain classified.

ACLU lawyer Ben Wizner said after the ruling that the court is allowing the government to suppress the evidence “not to protect any legitimate national security interest, but to protect current and former government officials from accountability.”

He added that the records requested are important because they would provide “critical missing information about how the CIA’s torture program was actually carried out and whether interrogators followed, or exceeded, Justice Department legal guidance that purported to authorize brutal interrogations.”

Wizner said the ACLU would appeal today’s ruling.

From a release:

“Law enforcement organizations across the nation understand that we collect the best intelligence and protect both the interrogator and the person being interrogated by requiring recordings,” Holt said. “This bill continues the process of putting our detainee policies back on a sound legal footing while maintaining our ability to get actionable intelligence,” Holt said.

In addition to requiring videorecording of detainee interrogations, Holt’s provision would require the Secretary of Defense to develop guidelines for ensuring that the required videorecording is expansive enough to prevent abuses of detainees’ fundamental human rights under U.S. and international law. To ensure the safety of U.S. troops, the provision would not require troops in combat to record interrogations.

The Senate is expected to take up the measure soon.

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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President Barack Obama (WDCpix)

After months of deliberation about humane and effective ways of interrogating high-value terrorism detainees, the Obama administration announced on Monday that it would create a new interagency interrogation task force for extracting information from the most important terrorist suspects in its custody. Known as the High-Value Detainee Interrogation Group, the new team will draw on interrogators, intelligence analysts, linguists and cultural experts to interrogate detainees without torturing them, according to senior administration officials.

The unit, called HIG for short, will be housed in the FBI, although one senior administration official said on a conference call with reporters that the HIG’s primary function will be “intelligence gathering rather than law enforcement.” Its creation comes as the result of the work of a task force created by President Obama’s January executive order on interrogations and renditions, and the task force’s proposal to create the new HIG was first reported by The Washington Independent.

Illustration by: Matt Mahurin

The team, of unspecified size, will have authority to operate outside of the United States, but it will operate within the legal boundaries set by a U.S. Army field manual that is supposed to comply with the Geneva Conventions. “The Task Force concluded that the Army Field Manual provides appropriate guidance on interrogation for military interrogators and that no other additional guidance is needed for others in the federal government who conduct interrogations,” a senior administration official said. “The practices and techniques identified by the Army Field Manual are currently used by law enforcement to provide adequate and effective means of conducting such interrogations.”

Physicians for Human Rights has objected to an annex the Bush administration added to the field manual, called Appendix M, that allows for a technique known as “separation” to isolate so-called “unlawful enemy combatants” from Geneva Conventions-protected detainees, in order to “prolong the shock of capture” and “decreas[e] the detainee’s resistance to interrogation.” It is unclear how the appendix will impact the Obama administration’s interrogations, since senior officials have said they no longer employ the “enemy combatant” term.

While no officials have yet been identified to run the new HIG, its chief will come from the FBI, with a deputy provided by the intelligence community. It will report to the National Security Council, allowing a variety of government agencies — including the Departments of State, Justice and Homeland Security — to provide what the senior administration official called “strategic guidance” to the group, but not operational direction. Under the Bush administration, the CIA operated a so-called “enhanced interrogation” program that subjected detainees to such techniques as waterboarding, confinement in a small box,prolonged sleep deprivation through the application of painful physical contortions, restriction of a detainee’s daily caloric intake, and other techniques long regarded as torture under international law.

Both the administration and the CIA insisted that the bureaucratic change did not amount to a demotion of the CIA. “The CIA is still going to play a very important role on the operational side,” the senior administration official said, calling it an “integral part” of the new HIG. Added George Little, a spokesman for the CIA, “The CIA has played a vital role in the work of the task force, and its substantive knowledge will be essential to interrogations going forward.”

A government official who spoke on condition of anonymity said that the CIA did not want to house the new interrogation unit. The agency’s conduct during the Bush administration’s “enhanced interrogation” program is the subject of a 2004 CIA inspector general’s report due to be released Monday and it is widely anticipated that Attorney General Eric Holder will soon announce a criminal investigation into the treatment of detainees in CIA custody. “They’re glad to be out of the long-term detention business,” the official said, adding that “in the future, the CIA will, as appropriate, participate in the questioning of terror suspects.”

On the conference call, two senior administration officials, who declined to be quoted by name, said that the HIG would have to determine on a “case by case” basis whether a detainee interrogated by the HIG would be brought to federal criminal trial, although unspecified “broad policy guidance” from the National Security Council would govern the precise relationship between interrogations, prosecutions and detentions. “I think that’s really about as much as you can say in the abstract,” said one official. “You need to drill into the particulars of the case to know how to best work the case going forward.”

A second official said the consideration for the Obama administration was “the best way to gather the information that we need to keep the country safe and protect national security. Sometimes that’s done by a law enforcement approach or by a prosecution and sometimes it’s not.”

The recommendation for creating the new interrogation unit, first reported by The Washington Independent, drew heavily from a proposal given to the task force in the spring by three security experts: Philip Heymann, a former deputy attorney general, forensic psychiatrist Robert Fein, and former CIA official John MacGaffin. The three, who contribute to a government advisory body called the Intelligence Science Board, recommended drawing a team together from the best interrogators from across the government to employ the best proven interrogation techniques for eliciting information humanely, and to create an institutional study of available social science information to inform interrogations. Both proposals were embraced by the task force, and one of the senior administration officials on the conference call praised the Intelligence Science Board’s work as “very thorough.”

The interrogations task force that recommended creating the new interrogation unit was chaired by Holder and co-chaired by Dennis Blair, the director of national intelligence and Bob Gates, the secretary of defense. It was run by J. Douglas Wilson, chief of the National Security Unit in the U.S. Attorney’s Office for the Northern District of California. Holder released a statement saying the HIG would “yield valuable intelligence and strengthen our national security” and pledged that “there is no tension between strengthening our national security and meeting our commitment to the rule of law.”

“There are no court rules or rules in the military commissions that would prohibit showing detainees photos “as long as you obtained them from an unclassified source, and they weren’t otherwise covered by a protective order,” said Dratel.

In general, lawyers cannot show their clients information that is classified. And like anyone else, they can’t intentionally reveal the identity of a covert CIA agent knowing that the agent is or recently was playing a covert role with the CIA. It’s not clear if any lawyers showed their clients photos of interrogators who were acting covertly, but it’s also unclear how an official questioning a terror suspect on behalf of the CIA would be covert.

In any event, defense lawyers are troubled that the Justice Department decided to leak news of the investigation to reporters. The Washington Post and The New York Times both reported the story this morning.

“It’s unfortunate that someone in a position to know better decided to go public with this and attempt to smear people in a way that they can’t do legally,” Dratel said. “The investigation is something that’s extraordariny not only for the fact that it’s occurring, but for how it’s occurring, with people being confronted by law enforcement,” said Dratel.

Government agents reportedly approached three lawyers from the Judge Advocates General’s Corps two weeks ago and informed the military lawyers of their right to remain silent, then asked whether they’d shown their clients photos of CIA officials.

“Normally, when a prosecutor wants to subpoena a lawyer, they have to get permission and jump through a lot of hoops,” said Dratel. “I see this as heavy-handed.”

It also could be a way to intimidate the lawyers from aggressively defending their clients. Yesterday, American Civil Liberties Union president Anthony Romero vigorously defended the defense lawyers, who are receiving assistance from the ACLU through the John Adams Project, which has organized private attorneys to assist the military lawyers in defending terror suspects.

“Identifying who tortured our clients and what they did to them and when is an essential part of defending their interests in these sham proceedings,” Romero told The Times.

President Barack Obama (WDCpix)

The task force advising the Obama administration on interrogating terrorism-related detainees is wrapping up its work this week, and although some of its final recommendations remain unfinished, officials familiar with its work indicate that it will focus less on specific interrogation techniques than on recommending interrogators develop their non-abusive strategies around known information about the specific detainees being questioned.

As first reported in June by The Washington Independent, the task force, chaired by J. Douglas Wilson of the Justice Department, is likely to recommend removing the CIA as the lead federal agency in charge of terrorism interrogations in favor of a mixed team of interrogation specialists from the FBI, the CIA and the military. A consensus has formed within the task force that creating such teams is the optimal path for eliciting vital information from the highest-value terrorism suspects without jeopardizing potential prosecutions of those detainees.

Illustration by: Matt Mahurin

The task force, convened as part of a January executive order from President Obama ending the CIA’s so-called enhanced interrogation program, is supposed to recommend which non-coercive interrogation techniques ought to be employed. But a source familiar with the task force’s work cautioned that experienced interrogators on the task force believe that a narrow focus on the use of particular techniques missed the point of interrogation work.

“One of the major recommendations was an investment in research and the application of science to better the elicitation of information, more than [specific] techniques,” said one such official, who requested anonymity because the task force’s report has yet to be delivered to the White House. “As far as techniques go, it’s not about techniques, it’s more about the application” of interrogation plans built around the specific circumstances of a detainee.

The Wall Street Journal also quoted an official familiar with the task force’s work as saying that professional interrogators find the Army Field Manual on Interrogations, a mostly Geneva Conventions-compliant instruction manual for tactical military interrogations, as less relevant for their work with high-value targets. “That’s good for 18-year-olds who need an operator’s manual in the field,” the official told The Journal’s Siobhan Gorman, but “you want to have a spectrum of things, and to know what the borders are — what you can’t do.”

Nothing in the task force’s recommendations would approach “extreme physical or mental discomfort,” an official told TWI, as Obama’s executive order has banned any such approaches and revoked all Justice Department legal foundations for the CIA’s enhanced interrogation program, and there are “no signs those measures work.” The official added that within the bounds of the executive order’s torture ban, the task force’s discussion on interrogation approaches centered on “what works, what’s known to work, and not have an extreme price on it.”

While the executive order creating the task force mandated it to deliver its finished product by July 21, the Journal reported that the task force was unlikely to meet the deadline. The Washington Post reported that it was still likely to give its recommendations to the White House by week’s end. It is unclear why the task force might require an extension to its deadline.

TWI reported in June that the task force was favorably inclined to a proposal making the interrogation teams report jointly to the attorney general and the director of national intelligence when interrogating high-value terrorism detainees. The logic behind the proposal is to ensure that even when the purpose of an interrogation is to develop intelligence — such as information around a specific plot or about the structure of a terrorist organization — the interrogations do not preclude the Justice Department from seeking prosecutions of those detainees.

In a May speech at the National Archives, Obama lamented how the abuse of detainees in hidden CIA prisons and the Guantanamo Bay detention facility during the Bush administration may have jeopardized his Justice Department’s ability to convict some detainees in civilian courts. He has used that abuse as part of an argument to construct a system of preventive detention, possibly including captives off the battlefields of Afghanistan — something civil libertarians have fiercely resisted.

10:31. We’re doing good things out in the world: “For the first time since 2002, we are providing the necessary resources and strategic direction to take the fight to the extremists who attacked us on 9/11 in Afghanistan and Pakistan. We are investing in the 21st century military and intelligence capabilities that will allow us to stay one step ahead of a nimble enemy. We have re-energized a global non-proliferation regime to deny the world’s most dangerous people access to the world’s deadliest weapons, and launched an effort to secure all loose nuclear materials within four years…”

10:31. No security without “the power of our most fundamental values.” Like military commissions. “These are not simply words written in aging parchment…”

10:35. We are “the nation that shut down torture chambers… that is who we are.”

10:35. “Hasty decisions” by Bush, many “motivated by a sincere desire to protect the American people,” but also “fear rather than foresight… trimmed facts and evidence to fit predispositions.” Too often “we set those principles aside.” Too many of us — “politicians, journalists” — “fell silent… in other words, we went off course.” But the American people voted to “rejec[t] torture and recognize the imperative of closing the prison at Guantanamo Bay.” Need to “update our institution” with respect for the rule of law.

10:36. He’s really laying into the Bush administration. This is a red-meat speech. “the decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable – a framework that failed to rely on our legal traditions and time-tested institutions; that failed to use our values as a compass.” And here’s how he argues against torture:

I know some have argued that brutal methods like water-boarding were necessary to keep us safe. I could not disagree more. As Commander-in-Chief, I see the intelligence, I bear responsibility for keeping this country safe, and I reject the assertion that these are the most effective means of interrogation. What’s more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counter-terrorism efforts – they undermined them, and that is why I ended them once and for all.

He sounds animated while saying this. Again: red-meat speech. Will be interesting to see how he justifies military commissions in this context.

10:41. Closing GTMO. Only three terrorists convicted “in over seven years.” SCOTUS invalidated “the entire system.” And 525-plus detainees were released by Bush. (That red meat again.)

10:43. Keeps mentioning “the prison at Guantanamo.” So I guess the whole base — of which the detention facility is a small part — won’t be returned to Cuba…

10:45. “We’re cleaning up something that is quite simply a mess.” It’s taking too much effort from his administration. ” Uighurs! “The court order to release seventeen Uighur detainees took place last fall — when George Bush was President. The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican Presidents. ” Not “wild-eyed liberals.”

10:46. “It is my responsibility to solve the problem.” Can’t delay, the courts won’t allow it. “And neither should our conscience.” Politicization of these issues is running high. “I have no interest spending my time relitigating problems of the last eight years.” Well, you’ve done that for 20 minutes at least… The debate is “calculated to scare people.” Did one of my liberal-blogger friends write this speech?

10:48. He’s sick of this GOP line that he’s going to let terrorists go free and Khalid Shaikh Mohammed is going to be your neighbor:

Let me begin by disposing of one argument as plainly as I can: we are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders – highly secure prisons that ensure the public safety. As we make these decisions, bear in mind the following fact: nobody has ever escaped from one of our federal “supermax” prisons, which hold hundreds of convicted terrorists. As Senator Lindsey Graham said: “The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational.”

10:49. Blames Bush’s “poorly planned haphazard approach” that let detainees “return” –arg, that word again — “to the battlefield.”

10:50. Federal trials for GTMO detainees whenever “possible.” “Our citizens are tough enough to convict terrorists.” Shorter Obama: you deride federal courts’ capabilities to convict terrorists, you insult the American people.

10:52. Military commissions. “A history … dating back to George Washington.” For violators of the laws of war. So how to distinguish between the two cases? “For the presentation of evidence gathered from the battlefield that cannot be effectively presented in federal Courts.” Only voted against the 2006 Military Commissions Act because it didn’t provide enough process. Spending a lot of time saying that he’s not a hypocrite.

My Administration is bringing our Commissions in line with the rule of law. The rule will no longer permit us to use as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify.

10:54. Some detainees are ordered released by the courts. “Nothing to do with my decision to close Guantanamo… the courts have spoken.” No legit reason to hold 21 detainees. “I too am bound by the law.”

10:56. The hard cases: those who can’t be prosecuted. “Exhaust every avenue” to prosecute. “But there may be a number of people who can’t prosecute people for past crimes, in some cases because evidence may be tainted.” Like through torture. Basically, the high-value detainees. “People who in effect remain at war with the United States.” Won’t be released. But “these detention policies cannot be unbounded.” So the administration is creating a new category of procedure. Are these Neal Katyal’s national-security courts?

We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

The goal is “a legitimate legal framework.” How is this different than the ad-hoc framework that he denounced from the Bush administration? Because it’s more… deliberate? What?

10:59. “These are issues that are fodder for 30-second commercials.” Be not afraid, Democrats! If don’t deal, “they’ll be an albatross” around the U.S.’s neck. American people will reject fear. “I am not the only person in this city who swore an oath to protect the U.S. Constitution.”

11:00. Speaking broadly. Democracy “depends on transparency.” But some information has to be classified. “Information we have about a terrorist organization and its affiliates… lives are at stake.” Released memos by the OLC “not because I disagreed with enhanced interrogation techniques or… their legal rationales.” But because “it was already widely known and I had already banned those methods.” We will not “be interrogating detainees using that approach.”

But the torture photographs are different. Those troops in the photos were investigated. “No debate…. over whether it’s wrong.” But “was my judgment… releasing those photos would inflame anti-American opinion, and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, endangering them in theaters of war.”In short, there is a clear and compelling reason to not release these particular photos.” Nothing would be gained that outweighs the cost. The press considers it contradictory. In each case had to strike a balance.

11:04. “Accountability”? Nothing about commissions or investigations of the torture or detention apparatus of the Bush administration. He says he’ll “insist” on “oversight” of his actions by Congress. “Someone must always watch over the watchers.” Hurm.

11:06. State secrets privilege. He’s concerned “it’s overused.” Principle: don’t protect information because it conceals wrongdoing or illegality or embarrassment. He’ll “apply a stricter legal test.” Won’t assert it in court without “first following a formal process, including review by a Justice Department committee and the personal approval of the Attorney General.”

11:09. He’s said “enhanced interrogation techniques” a lot, instead of “torture.” You’d probably have to prosecute “torture.”

11:11. Versus Cheney. Some want to “re-fight debates that have been settled” including “some they have lost.” Versus liberals: he opposes a commission to investigate torture and detention decisions. “That kind of effort only leads those in Washington to different sides laying blame, and can distract us from focusing our time, our effort, and our politics on the challenges of the future.” If only we were all as nuanced as Obama!

11:14: “I can say without exception or equivocation that we do not torture, and that we will vigorously protect our people while forging a strong and durable framework that allows us to fight terrorism while abiding by the rule of law. Make no mistake: if we fail to turn the page on the approach that was taken over the past several years, then I will not be able to say that as President. And if we cannot stand for those core values, then we are not keeping faith with the documents that are enshrined in this hall.” So you can violate the constitution and only be held accountable politically, not legally, then.

11:16: Another parting shot at Dick Cheney and the Bush administration. “Every now and then, there are those who think that America’s safety and success requires us to walk away from the sacred principles enshrined in this building. We hear such voices today. But the American people have resisted that temptation.”

11:17: Fadeout is another call for national unity. “We can and will defeat al-Qaeda.” Never be able to do that “if we stay true to who we are… anchored in our timeless ideals. This must be our common purpose.”

–

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The short answer, according to Jameel Jaffer, director of the ACLU’s national security project, is that the memos released last week were part of a “universe” of requested memos listed in an ACLU FOIA petition whose scope “ends in 2005,” putting our memo out of play. That scope was agreed to by the government and the ACLU after years of litigation. “There are still dozens of memos responsive to our original FOIA that they’ve not released,” Jaffer said.

Still, the ACLU in December filed another FOIA request to get up to date with what the Bush administration authorized the CIA and the Defense Department to do to detainees after 9/11. The organization asked for some specific memos, but also phrased its request for “catch-all” material, Jaffer said, “broad enough to encompass the memo you reported on.”

Jaffer added that he didn’t know about the 2007 OLC memo before TWI broke the story of its existence. “It sounds like this memo is central to the narrative,” he said. “The question of what methods the CIA believed to be permissible is a question we still only have a partial answer to. We know what [the administation] authorized in 2002, 2003 and 2005, but there’s still a lot of information about what happened to CIA detainees after 2005 [that isn't clear] And it sounds like this memo sheds a good deal of light on that question.”