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

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

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

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

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

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

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

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

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

09 Memos

The Washington Post notes today in a story setting out Cheney’s arguments that an Aug. 31, 2006 memo from Steven Bradbury, then-acting assistant attorney general in the Justice Department’s Office of Legal Counsel, said his legal conclusions relied in part on assurances from CIA general counsel John Rizzo that “interrogations conducted pursuant to the program have led to specific, actionable intelligence about terrorist threats to the United States and its interests.”

Rizzo may well have said that, but even if it were true, that doesn’t make the techniques used legal. And it certainly doesn’t bolster Cheney’s argument now that an investigation is not warranted.

A look at those legal memos of 2006 and 2007 released on Monday reveal that the government’s lawyers went out of their way to twist and turn and manipulate the applicable law to approve the techniques that they were already using, notwithstanding the fact that by 2006, the law had changed. Congress had specifically outlawed abusive interrogations, and the Supreme Court had ruled, contrary to the Bush administration’s claims, that Common Article 3 of the Geneva Conventions applies to “war on terror” detainees.

So much for former Attorney General Alberto Gonzales’s idea that the Geneva Conventions were a “quaint” relic of the past.

In Hamdan v. Rumsfeld, the court ruled that the basic protections apply to all prisoners, even in an unconventional international conflict such as the one against al-Qaeda and the Taliban. And Congress, which by that time had grown concerned about reports of abuse and deaths of detainees in U.S. custody, in 2005 passed The Detainee Treatment Act, or DTA, prohibiting the “cruel, inhuman, or degrading treatment or punishment” of detainees and providing for “uniform standards” for interrogation.

Oddly, however, the arguments of the Justice Department’s lawyers justifying the techniques in existence remained essentially the same.

Take the July 20, 2007 OLC opinion on interrogation techniques, released for the first time on Monday. The memo defines techniques like prolonged sleep deprivation for up to 96 straight hours (or 180 hours in a 30-day period) while forced to stand, shackled, in diapers (and eventually in one’s own feces); which can be used in combination with restriction to a 1,000-calorie-a-day diet (half the normal minimum) and “corrective techniques” such as the “facial hold,” “facial slap,” and “abdominal slap”; as not violating Congress’s ban on “cruel, inhuman or degrading treatment” and not violating Common Article 3′s requirement that prisoners be treated “humanely.”

How does it do that? Largely by saying that to violate the laws, the techniques must cause “serious” mental or physical harm, and the lawyers just didn’t think that the sort of mental or physical pain involved here was “serious” enough. That’s because, just as the lawyers defined “waterboarding” in the past to not cause serious harm because the harm was not prolonged for years — or at least it wasn’t when used on soldiers undergoing SERE training — this sort of prolonged-standing, half-starved sleep deprivation in diapers wasn’t going to cause “prolonged” or “severe” harm either. I don’t know how you prove that, but the lawyers seem to have just decided it.

“It’s an attempt to analyze the interrogation techniques under a different sets of norms,” American Civil Liberties Union national security project lawyer Alex Abdo explained to me yesterday. “But it’s surprising how little the analysis in this memo changed from the past memos, notwithstanding the passage of the DTA and the Supreme Court’s decision in Hamdan.”

“At the end of the day, it seems fairly commonsensical that you can’t beat up someone for information, and yet this memo contemplates that,” Abdo says. “It’s dodging bullets fired at the CIA by Congress and the Supreme Court.”

Cheney thinks this and other memos dodged those bullets effectively, and the investigation should end there. But for those who find it cavalier the way the Justice Department decided that obviously painful, physically destructive and likely terrifying interrogation techniques were not “serious” enough to fall under the prohibitions against cruel, inhuman and degrading treatment, then who ordered those techniques to be used, how they were used and why they were approved might merit further inquiry.

Ever since The Los Angeles Times reported last weekend that Attorney General Eric Holder is inching closer to investigating detainee torture that occurred during the “war on terror”, the debate over whether the Holder probe is a good thing has intensified — and distracted a few of us from the spectacle of the town hall brawls.

Andrew Sullivan at The Atlantic called it “the worst of both worlds” because Holder is reportedly considering prosecuting the actual interrogators who exceeded the interrogation limits set out by John Yoo & Co. in Justice Department memos, rather than the authors of the memos and the torture policy themselves.  That “risks essentially legitimizing the torture it does not prosecute,” Sullivan argues.

And on Monday, Digby wrote that the purported impending investigation uses “inverted pretzel logic” to go after only “those who failed to follow John Yoo’s directives.”

Digby continues:  “I think we can all see the problem here, can’t we? By prosecuting waterboarding “abuses” we are essentially declaring waterboarding under John Yoo’s only slightly less sadistic guidelines to be legal. Evidently, the new standard will be that if you’re going to torture, you’d better do it right.”

Well, sort of.  These arguments urge the attorney general to do the right thing, but they don’t take politics into account.  And the attorney general is, above all, a political animal.

Holder knows that his boss, President Obama, and his boss’s chief of staff Rahm Emanuel don’t want prosecutions of the last White House to distract from the Obama agenda. So a criminal investigation of John Yoo, David Addington or Dick Cheney was just not on the table.

But I don’t think there’s any real way for an independent prosecutor to ethically investigate the torture and sadistic abuses inflicted on detainees at Abu Ghraib, Bagram and elsewhere without that ultimately leading up the chain of command – to who ordered what to happen and how. And that’s inevitably going to raise the much broader question of whether the legal memos actually represented a policy that was communicated to interrogators when they were beating prisoners and leaving them in the cold to die (more on that in a bit) or whether the “policy” was just created after the fact to make the whole interrogation process in the early lawless days of the “war on terror” look legitimate.

I realize this doesn’t address whether what those memos themselves describe was illegal, and why that bothers people who think that tactics like waterboarding and systematic sleep deprivation and confining people in tiny boxes with insects ought to be condemned and punished.  But it’s a beginning of finally starting to hold someone accountable. And I’m convinced that if it’s done seriously by a truly independent prosecutor, it will be a key step toward exposing the whole truth about what really happened during those dark Bush years. And, one way or another, the truth will come out. (Don’t forget there’s still that Justice Department ethics report on the development of the torture memos that’s supposed to be issued any day now.)

Holder is likely to investigate some of the cases that were discussed in the highly anticipated still-classified 2004 CIA inspector general report, which is supposedly what got Holder upset enough to consider taking action. (The fact that the declassified report is set to be released on Aug. 24, and is likely to include some really gruesome details, probably helps motivate Holder, who as the nation’s top law enforcement officer surely doesn’t want to look like he’s deliberately ignoring heinous crimes.)

News reports and a series of letters between the Justice Department and Senate Judiciary Committee member Dick Durbin (D-Ill.) that I’ve written about highlight some of the cases likely to get special attention. They include the death of an Afghan man who was stripped naked, dragged across a concrete floor and chained there by CIA operatives in a secret prison north of Kabul known as the “Salt Pit”; he was left on the floor overnight and froze to death.

Then there’s the death of Manadel al-Jamadi, an Iraqi insurgent who died just hours after he was captured and beaten by Navy SEALs, who hung him from his wrists, which were tied behind his back, until he was dead.

And there’s the killing of Iraqi Maj. Gen. Abed Hamed Mowhoush, a 56-year-old who, reportedly uncooperative with interrogators, was stuffed into a sleeping bag and clubbed to death.

Whether it’s a good idea to focus on these sorts of cases, which clearly went beyond the bounds laid out by the Bush Justice Department’s legal memos, or whether Holder ought to be prosecuting the authors of the memos themselves is beside the point. Because the CIA agent who clubbed a man to death or hung him from his wrists on the ceiling or left someone in sub-zero temperatures chained to the floor naked is going to have to explain how he came to think that was acceptable interrogation conduct. And that’s likely to reveal that the bounds we’ve all seen in John Yoo’s torture memos – many of which were drafted years after these murders occurred — were never articulated to the interrogators on the front lines.

In fact, as The Los Angeles Times report notes (and as Digby pointed out), it’s not clear that CIA interrogators were ever even told about any legal memos.

“A number of people could say honestly, correctly, ‘I didn’t know what was in [the memos]’ “ a former senior U.S. intelligence official familiar with the operation of the interrogation program told the L.A. Times.

The Times’ reporters present that as if it’s a defense to the crime that will likely foil Holder’s prosecutions. Actually, it’s strong evidence that it’s the commanders and policymakers, rather than the front-line interrogators, who are most responsible. After all, particularly if they didn’t tell their subordinates what the rules were, then they have what lawyers call “command responsibility” for their subordinates’ actions.  Think of it as the opposite of the Nuremberg defense – “just following orders” – that Bush staffers joked about in the e-mails released yesterday about the U.S. Attorney firings. They just “followed orders.” This is accountability for giving orders.

And isn’t it the higher-ups who knew this stuff was illegal and ordered people to do it anyway that we most want to hold responsible?

I made this point yesterday on Warren Olney’s radio show, “To the Point,” produced by KCRW and Public Radio International. Greg Miller, one of the L.A. Times reporters who wrote the story, was making the case on the air that Holder is going to have a really hard time prosecuting the CIA interrogators. Miller cited the claims of former Justice Department employees who investigated these cases during the Bush administration and did NOT refer them for prosecution because the facts to support a prosecution “just weren’t there.”

At no point during the show, though — nor in his L.A. Times piece — did Miller acknowledge that those former Justice Department officials had a really strong incentive to say that the evidence just wasn’t there. After all, out of 24 cases of extreme brutality referred to the Justice Department for prosecution, 22 were “declined” by the Justice Department.

Last year, Brian Benczkowski, then principal deputy assistant attorney general, explained to Sen. Durbin in a letter that “All of the declinations [to prosecute] resulted from insufficient evidence to warrant criminal prosecution for one or more of the following reasons:  insufficient evidence of criminal conduct, insufficient evidence of the subject’s involvement, insufficient evidence of criminal intent, and low probability of conviction.”

Justice Department employees told Miller of the L.A. Times, meanwhile, that they had “difficulty locating witnesses and identifying documents — such as clinical examinations or autopsies — that could withstand scrutiny in federal court.”

That just doesn’t add up. These were murders and cases of abuse so serious that even Bush officials – who’d been told that waterboarding and the rest of the so-called “extreme interrogation tactics” were legal — referred them to the Department of Justice for prosecution. And they all took place in U.S.-run prisons, with surely more than one lone interrogator present.  (If you imagine the logistics of getting hanging a grown man by his wrists, while they’re tied behind his back, it would seem you’d need at least two people there to do it.)  But there were no witnesses?  No CIA agents or U.S. soldiers or anyone around to see a guy get clubbed to death, or dragged around a floor naked and left in the cold to die?

(This is, by the way, another reason why those photos of torture that the American Civil Liberties Union is still fighting the Justice Department to see, the release of which the Obama administration is asking the Supreme Court to block, are so important – because they’d show some of the witnesses to these crimes.  But I’ll have more on that case later.)

“We wanted to make these cases,” a former Justice official familiar reportedly told the L.A. Times. “We looked at them as hard as we could, and they just weren’t there.”

Holder, to his credit, is apparently not buying that.

Ultimately, any thorough presentation will have to follow the chain of command, and it will be awfully difficult to skirt the issue of waterboarding.

Bruce Fein, a former deputy attorney general under President Ronald Reagan made some really good points about that yesterday on Olney’s show. First, the Constitution says that the president “shall take care that the laws be faithfully executed.” So he doesn’t get to just pick and choose what to prosecute, and not to prosecute obviously illegal conduct. (Fein knows what he’s talking about; as a lawyer in the Office of Legal Counsel in 1972, he participated in drafting impeachment charges against Richard Nixon.) Given that both Obama and Holder have publicly testified that waterboarding is torture and illegal, and given that Cheney has boasted about authorizing it, it would seem pretty clear that something should be done about that.

Fein added that if the president or attorney general don’t want to punish people who may have believed they were following the law, even though they weren’t, then the answer is to pardon them – not to ignore that crimes occurred.

“The reason a pardon is so much more important than no prosecution is that in a pardon situation the recipient confesses that what was done was wrong,” said Fein. “The country doesn’t acknowledge that what was done was legal, but that there are circumstances that justify leniency.”

Clearly, Obama and his attorney general aren’t yet willing to go there. But prosecuting at least the unquestionably illegal activity is a good start.

Ramzi bin al Shibh is one of five men charged by the U.S. military commission with having participated in planning the Sept. 11 hijacking and suicide mission. His lawyers say he’s not competent to represent himself or to stand trial because he suffers from “delusional disorder” and hallucinations, and he is being treated with psychotropic drugs by Guantanamo Bay prison doctors.

To prepare his defense, his lawyers tried to get evidence from the government about which specific interrogation techniques were used on him, and how frequently. Waterboarding, stress positions, sleep deprivation and sexual humiliation are among the techniques to which the the alleged 9/11  conspirators were subjected, according to the so-called Office of Legal Counsel “torture memos” released earlier this year.

But the military judge hearing the case, Army Col. Stephen Henley, ruled on Aug. 6 that “evidence of specific techniques employed by various governmental agencies to interrogate the accused is … not essential to a fair resolution of the incompetence determination hearing in this case.” The government had argued that releasing the evidence would endanger national security.

The Miami Herald obtained a copy of the ruling on Monday.

Also tomorrow, after numerous delays, the Obama administration is expected to produce a much-anticipated 2004 CIA inspector general’s report with more details and criticism of the Bush administration’s interrogation tactics.

As I explained in my last post on the Jawad case, the Obama administration is trying to keep holding Jawad — who’s been in U.S. custody without charge for almost seven years — based on those tortured confessions, which even a military judge previously deemed too unreliable to use in his military commission case.

The ACLU will argue tomorrow that the federal judge in Jawad’s habeas corpus case should rule that evidence gathered through torture is still too unreliable — and therefore inadmissible — to be the basis for continuing to keep him in prison indefinitely.

Although the Jawad case appears to be the first in which the Obama is seeking to rely on evidence obtained through torture, it’s just one of many examples of the government’s refusal to acknowledge the legacy of torture under the Bush administration — and its consequences.

There are, of course, the now-notorious photographs of detainee abuse that the Obama administration has kept from being released, despite the orders of a federal court to turn them over. And then there’s the fact, which Glenn Greenwald, Marcy Wheeler, Daily Kos and John Sifton have been writing about, that there are a whole lot of unsolved murders and mysterious autopsy reports concerning the brutal deaths of detainees in U.S. custody, for which almost no one has been held accountable.

In many cases, these deaths weren’t the result of waterboarding or some other act that Obama administration officials have admitted are torture; they seem to have been the result of ordinary “enhanced” interrogations:  beatings, stress positions, food and sleep deprivation and the like.

According to a report from Human Rights First, about 100 detainees have died in U.S. custody since August 2002, but only 12 deaths have resulted in punishment of any kind for U.S. officials.

The ACLU has embarked on an important campaign for accountability for the torture and abuse that U.S. officials have inflicted on detainees. That includes ongoing efforts to unearth more information, to press for prosecutions of those who authorized the abuse, and to compensate the victims, many of whom, like Jawad, still remain in U.S. custody.

Tomorrow’s brief arguing that tortured evidence shouldn’t be the basis for continuing to hold detainees is a small but important step.

Science Daily reports the findings of Dr. Metin Ba?o?lu, Head of Section of Trauma Studies at King’s College London and the Istanbul Centre for Behaviour Research and Therapy, published in the April issue of the American Journal of Orthopsychiatry. The research concludes that even the sort of acts the U.S. military engaged in that aren’t normally classified as “torture” — stress positions, exposure to extreme temperatures and the like — can be more damaging than methods traditionally considered to be torture.

Focusing on the risk factors associated with Post-Traumatic Stress Disorder in former detainees, the researchers report that “captivity experience in a war setting was associated with 2.8 times greater risk of PTSD in comparison to being detained by state authorities in someone’s own country, possibly due to the greater perceived threat to life in a war setting.” Moreover, “being held captive by an enemy was a stronger risk factor for posttraumatic stress disorder (PTSD) than the actual experience of torture itself.”

Dr. Ba?o?lu concludes:

“Such views reflect a rather stereotypical image of torture as involving only certain atrocious acts of physical violence. While such disturbing images might be useful in channelling public reactions against torture, they also foster a skewed image of torture, reinforcing the perception in some people that ‘cruel, inhuman, and degrading’ treatments do not amount to torture. Far from downplaying the problem of torture, our studies highlight the fact that the reality of torture is far more serious than people generally believe.”

That may help explain the tragic death of Muhammad Ahmad Abdallah Salih, also known as Al Hanashi, a 31-year-old Yemeni who the military reports committed suicide on Monday in his cell at the U.S. prison at Guantanamo Bay, where he’s been detained since 2002.

Hanashi is the fifth prisoner reported to have taken his own life while imprisoned at Guantanamo.

Defense Department officials said that Hanashi was found “unresponsive and not breathing” when guards checked his cell Monday night. British journalist Andy Worthington, author of “The Guantanamo Files” who’s been closely following and documenting the cases of Guantanamo detainees, reports that “Salih had been a long-term hunger striker, refusing food as the only method available to protest his long imprisonment without charge or trial. According to weight records issued by the Pentagon in 2007, he weighed 124 pounds on his arrival at Guantánamo, but at one point in December 2005, during the largest hunger strike in the prison’s history, his weight dropped to just 86 pounds.”

Before Hanashi’s death, three Guantanamo detainees hanged themselves with sheets in June 2006. Another prisoner similarly killed himself on a home-made noose in May 2007.

On Tuesday, lawyers for Hanashi at the Center for Constitutional Rights warned that there could be more such suicides to come.

The frustrations and disappointment at the base are running high because the hopes for change under the new administration were so great. Only two people have gone home in the last five months, and, by all counts, conditions at the prison have not improved. Every day that passes makes it more likely that more people will die in detention under President Obama’s watch.

Lawyer David Remes, who represents more than a dozen other Yemeni detainees at Guantanamo Bay, including at least one who’s tried to commit suicide and is now in a psychiatric ward there, similarly noted that the suicide of prisoners during indefinite detention and deprivation is not surprising: “Suicide is a human response to intolerable conditions. Being held at Guantanamo is intolerable for the men there in so many ways,” he said. “President Obama has to stop dithering and close Guantanamo.”

While Attorney General Eric Holder has not shown much interest in prosecuting the perpetrators and policymakers behind the torture policy, the publication of the complete ICRC report, which describes such “enhanced interrogation techniques” as waterboarding; forcing detainees to stand, shackled, in painful stress positions for days; severe beatings; forced nudity; exposure to extreme hot and cold and threats to the prisoners’ families — all of which the ICRC said “amounted to torture” and violated of domestic and international law — could put additional pressure on the attorney general and on President Obama. Both have insisted that they want to “look forward” rather than backward, though both have also said that if crimes occurred, they should be prosecuted.

In addition to threats to their families, nine prisoners, interviewed independently, told ICRC officials that they were threatened with “electric shocks, infection with HIV, sodomy of the detainee and . . . being brought close to death,” according to the report.

The report also says that medical staff directly participated in the torture, in some instances. It quotes one doctor telling a prisoner, “I look after your body only because we need you for information.”

A slew of lawsuits isn’t hard to imagine. About 750 people have been detained as suspected terrorists at Guantanamo Bay. Thousands more have been held around the world. Many claim they were tortured, and we know from the Bush administration’s own documents that tactics such as waterboarding, stress positions, extreme hot and cold, blaring music and sleep deprivation, and sexual and religious humiliation were all among the tactics used to wring information out of them.

Although the Military Commissions Act tries to preclude lawsuits filed by enemy combatants, many of the people held were never determined to be enemy combatants, or were still held after they were cleared for release. Of the lawsuits already filed against US officials by detainees, none of them were ever deemed enemy combatants. The Second Circuit heard arguments in the case of Maher Arar this week, and lawyers on the other case (Rasul v. Rumsfeld) have asked the US Supreme Court for review. The court will consider the request when it meets on Friday.

Although all sorts of immunities protect US officials from wrongdoing on the job, there’s a strong argument to be made that torture can never be considered part of a government official’s job, so those immunities shouldn’t apply. And the Religious Freedom Restoration Act, which protects against violations of detainees’ religious rights, such as having their Koran flushed down the toilet or being forcibly shaven, is very broad. (That didn’t stop the DC Circuit from dismissing four British detainees’ claims under it earlier this year, though, as I’ve written about before.)

But as I was talking to Carolyn Patty Blum the other day, an emeritus law professor at Berkeley and consultant to the International Center for Transitional Justice, she mentioned that a commission set up to investigate torture and other abuses perpetrated by Bush officials could also recommend, in addition to prosecution, a means by which torture victims can be compensated. Even if Bush were to pardon himself and his officials, a topic of much recent discussion, that wouldn’t shield anybody from future civil lawsuits demanding monetary compensation. But a statute that set up an investigative commission that had the power to, among other things, recommend compensating victims of torture and arbitrary detention, could also protect the US government from some costly future litigation.

“If a commission led to the creation of some sort of process that allows people to clear their name and apply for some sort of monetary compensation for being arbitrarily detained, one of the benefits is it would foreclose the ability for people to pursue another remedy,” Blum explained. “That would be a net gain in terms of cost savings for the new administration.”

Although that’s not the primary reason why Obama should create an investigative commission — Scott Horton at Harper’s has made the case for one quite well — it’s yet another argument in its favor.