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

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

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

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

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

The BAU staff explain:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

09 Memos

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)

As the Obama administration nears its deadline for deciding where to try the men suspected of masterminding the Sept. 11, 2001 terrorists attacks, there are strong indications that those trials could take place in federal courts in the United States. That’s prompting fervent opposition from Republicans, who say the 9/11 terrorists should never be allowed anywhere on U.S. soil, let alone in a civilian U.S. court.

Illustration by: Matt Mahurin

Military Commissions lead prosecutor Capt. John F. Murphy told reporters in September that four different U.S. attorneys offices in New York, Washington and Virginia were vying for the opportunity to try the five now-infamous defendants, which include Khalid Sheikh Mohammed, the self-described mastermind of the attacks on the World Trade Center and the Pentagon. Walid Muhammad Salih Mubarek Bin ‘Attash; Ramzi Binalshibh; Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi are the other four. According to Murphy, the Eastern and Southern Districts of New York, based in Brooklyn and Manhattan, respectively; the Eastern District of Virginia, based in Alexandria; and the District of Columbia had all submitted requests to hold the high-profile trials in their courthouses, and to detain the suspects in their jails during trial. The military commissions are also seeking to try the defendants.

Meanwhile, White House lawyers, a task force advising the president, and President Obama have all said that their preference is to try terror suspects in federal courts whenever possible, although they have not ruled out the possibility of using military commissions to try some of them. It remains unclear which ones.

The administration has promised to make its final decision on where to try the 9/11 suspects by Nov. 16. Fearing that the administration is inching toward bringing them to New York City or the Washington, D.C., area, opponents of trying high-level terrorists in U.S. federal courts are stepping up their efforts to keep the five men out of the United States for any purpose. On Oct. 9, Sen. Lindsey Graham said he’d attached an amendment to an appropriations bill that would prohibit the Obama administration from spending money on prosecuting and trying these five alleged terrorists in U.S. civilian federal courts.”Khalid Sheik Mohammed needs to be tried in a military tribunal,”Graham told McClatchy Newspapers. “He’s not a common criminal. He took up arms against the United States.”

Graham is not alone in that view. In August, he joined Sens. Joe Lieberman (I-Conn.), John McCain (R-Ariz.), and Jim Webb (D-Va.) in sending a letter to President Obama expressing concern over reports that the Administration may try Khalid Sheik Mohammed and other alleged war criminals in civilian courts. The senators urged the administration to try them in military commissions instead, saying in part:

The bill, H.R.2847, is pending in the Senate as an amendment to an appropriations bill.

On Tuesday, former Attorney General Michael Mukasey made a similar argument against allowing the 9/11 defendants to be tried in a civilian federal court in an op-ed in The Wall Street Journal. Mukasey warned that the costs and burdens of security would be enormous, that housing suspected terrorists in U.S. prisons would threaten national security, and that a public trial would elicit sensitive evidence that would compromise intelligence sources and that terrorists will later use against us.

Those sorts of arguments outrage many legal experts and former military officers, who say that only a public trial in a U.S. federal court that affords terror suspects the same rights as all ordinary criminal suspects will carry the legitimacy necessary for such an important trial. And they dismiss the claims that housing terrorists in U.S. maximum security prisons, where terror suspects have been imprisoned for many years, would create any danger at all.

“The federal criminal justice system has adjudicated nearly 200 cases involving international terrorism in the year shortly before and since 9/11,” said Gabor Rona, International Legal Director of Human Rights First, which opposes the use of military commissions to try any Guantanamo detainees. “The idea that it cannot handle classified evidence, evidence from abroad, evidence obtained in the context of armed conflict, all of those have been proven false by the existence and the adjudication of all of those case in the federal criminal justice system, and many of those cases feature precisely those problems.”

“The bulk of resistance to bringing Guantanamo detainees to the U.S. is simply uninformed,” Rona continued. “The ‘not in my backyard idea,’ which I think is a crazy notion of people fearing that they’re going to have to be sitting next to a member of al-Qaeda when they go into Starbucks, is just nuts. We’re not talking about releasing suspected or known terrorists into the streets. We’re talking about transferring them to highly secure correctional and detention facilities for purpose of trial. If they’re found not guilty or guilty and they serve sentences, they’re still not entitled to be in the U.S., they will be deported. I think the administration is confident, and should be confident about being able to convey that this is not a situation that involves risk to Americans.”

Some former military officials hope the president will see it that way as well. On Tuesday, a group of retired generals sent an open letter to Congress, kicking off a campaign to close Guantanamo Bay and have the detainees brought to the United States for federal court trials.

“With 145 convicted international terrorists being held in our prison system, there has been no escape from a supermax correctional facility in the United States,” said retired Lt. Gen. Robert Gard, Chairman of the Center for Arms Control and Nonproliferation, on a conference call with reporters on Tuesday. “It does not threaten the security of this country to move however many of the remaining 226 detainees that we cannot farm to other countries or try and incarcerate, to move them from Guantanamo into our supermax facilities. The claim from members of Congress that this threatens American security is shameful and without a basis.”

Still, even some civil libertarians believe it would be legitimate for the administration to try the Sept. 11 suspects in military commissions at Guantanamo Bay or on U.S. military bases. “Our view is that as a legal matter, the 9/11 conspirators, unlike some other detainees at Guantanamo, could be tried in either federal court or military commissions,” said Kate Martin, director of the Center for National Security Studies. “Then it’s a matter of policy considerations.”

Although Martin says a defendant could get a fair trial in a military commission, that’s not necessarily the case under the current Military Commissions Act, even if recent amendments passed by the House were adopted. “One of the hallmarks of a fair trial is that it’s public,” and the military commissions have so far severely restricted public access. “If they choose the forum based on an interest in keeping parts of the trial secret, then they will lose their legitimacy right there,” she said.

Some military commission critics claim that one reason some Republicans support using military commissions is to keep hidden any evidence that the detainees were tortured by U.S. authorities, which the defendants or their lawyers would almost certainly present in their trials.

“There is a second objective in everything that someone like Mukasey is saying,” said American Civil Liberties Union attorney Denise LeBoeuf, who directs the John Adams Project, which organizes defense lawyers to represent the Guantanamo detainees. “That is covering up the details and the identities of torturers. This country had a systematic system of torture through the military and through contractors. Some of those people objecting to federal court trials now either implemented it, or knew about it and should have said something,” she said, adding that some are still in the administration and have an interest in preventing the information from surfacing.

Indeed, according to Justice Department memos revealed earlier this year, Khalid Sheikh Muhammed was waterboarded 183 times. Details of his treatment would likely come up in his defense, if he were to present one. On the other hand, he has confessed and even boasted to having masterminded the attacks numerous times, and has said he does not want a lawyer and wants to be martyred. He still could bring up his treatment by U.S. authorities in a trial, however.

LeBoeuf and other lawyers involved in the defense of high-level detainees say they’ve heard rumors that the administration wants to try the 9/11 detainees in federal court, but it’s impossible to know for sure what U.S. officials will do until they issue their decision.

To LeBoeuf, the fact that the 9/11 case is so high-profile is a strong reason for trying the suspects in public, in a civilian federal court in the United States.

“When you say the whole world is watching a case, this is the one,” LeBoeuf said. “This is the one where the administration has the greatest urgency and pressure to do it in a fair court. It’s also the one where there are mountains of evidence — for both sides. It’s the most investigated crime in the history of the United States. If you can’t put this case into a federal court, then what case can you?”

Still, according to the recently released July 2007 memo from the Office of Legal Counsel, the technique was determined not to cause “serious physical pain or suffering” and not to violate the War Crimes Act. The War Crimes Act prohibits torture and “cruel and inhuman treatment.”

Illustration by: Matt Mahurin

A comparison of the inspector general report with legal memos released from the Office of Legal Counsel within the Justice Department, however, reveals that lawyers were so uncertain about how and whether sleep deprivation could be used legally that their advice to the CIA ranged from restricting its use to 48 continuous hours, to allowing it for 180 hours or more. And although the 2007 legal memo specifically mentions that the CIA said it might use the technique for 180 hours, the lawyers restricted their analysis, in footnote 7, to only the legality of its use for up to 96 hours. Meanwhile, the inspector general report discusses the contemplated use of sleep deprivation on Abu Zubaydah for up to 11 days at a time — or 264 hours straight.

None of the former interrogators, physicians, lawyers or government officials could explain to TWI exactly why the CIA and Justice Department lawyers changed the rules so sharply and frequently. A call to Jack Goldsmith, the Harvard Law Professor and director of the Office of Legal Counsel from 2003 to 2004 was not returned.

“How they go from 48 to 100 plus hours is anybody’s guess,” said Jack Cloonan, a former FBI special agent who worked in the Osama Bin Laden unit from 1996 to 2002. “I think that they were making the rules up as they went along,” he said, adding that “they outsourced a lot of this,” referring to the role, recently revealed by The New York Times, of Jim Mitchell and Bruce Jessen, two businessmen-psychologists who developed the interrogation procedures for the CIA but had no interrogation experience themselves.

But the experts on sleep deprivation all appear to agree – and the literature on the subject is remarkably consistent – that sleep deprivation is physically and mentally harmful, and largely ineffective at producing useful information. Still, it’s tempting for government officials desperate to get detainees to talk.

“It will elicit information, that’s true,” said Cloonan. “People will talk. But in point of fact the substance is what separates what works and what doesn’t. Did they provide actionable intelligence, and could you verify what was being told?” asks Cloonan. “There’s a big diff between compliance — giving information to stop what they’re being subjected to — and real cooperation, where they’re giving useful information.”

Scientists, physicians and interrogators all say that because sleep deprivation causes extreme confusion and even psychosis, it’s impossible to know if what the detainee is telling interrogators is true or not.

“Sleep deprivation has been extensively studied,” said Dr. Steven Miles, professor of medicine at the University of Minnesota Medical School and faculty member of its Center for Bioethics, as well as the author of the book, “Oath Betrayed: America’s Torture Doctors.” “It will cause people to speak. It does not produce reliable intelligence. It impairs the ability to concentrate in a way that allows the interrogatee to assemble coherent narratives. So it’s counterproductive in terms of information solicitation.”

A December 2006 report from the Intelligence Science Board of the National Defense Intelligence College says that sleep deprivation is associated with, among other things, “increased suggestibility,” adding: “On this last point it is worth noting that suggestibility increases specifically under conditions simulating an interrogation. At least one study has found that “the effect on suggestibility of one or two night’s sleep loss is comparable to the difference in suggestibility between true and false confessors.”

That’s such a basic fact for interrogators that in the book, “Introduction to Forensic Psychology,” by Curt and Anne Bartol, the glossary lists “Coerced-compliant false confessions” as “Admissions of guilt most likely to occur after prolonged and intense interrogation experiences, especially in situations where sleep deprivation is a feature. The suspect, in desperation to avoid further discomfort, admits to the crime even knowing that he or she is innocent.”

As Tom Parker, a former British Intelligence agent, now Amnesty International’s Policy Director for Terrorism, Counterterrorism and Human Rights explained: “Sleep deprivation was never designed as an interview tool. It was used by the KGB and its precursors as a way to break people down to give false confessions. These techniques are not about getting people to tell the truth, they’re about breaking people down to kill their spirit.”

The justification for the technique originated with the idea of learned helplessness, based on studies conducted decades ago on dogs.

“They took dogs, tied them in a cage and shocked them,” explained Miles. “They showed that the dogs would act to resist or escape, unless the dogs learned there was nothing they could do to resist. Then they would just lie there and take it.”

The theory, explained Miles, is that “when used with other techniques it will induce dependence on the interrogator, which will cause the person to comply.” But all the research done on this from around the world reveals that “this technique simply does not gather intelligence.”

Sleep deprivation is always part of a package: as described in CIA inspector general report, prisoners were shackled, semi-starved, put in diapers and forced to stand that way. Their hands were cuffed along the wall close to their chins, according to Department of Justice memos. If they nodded off and stopped standing, the chains would pull at their wrists, waking them up.

Andrea Northwood, director of client services at the Center for Victims of Torture in Minneapolis, recently told The Associated Press that her organization considers 96 hours of sleep deprivation to be torture.

Sen. John McCain (R-Ariz.), who was tortured in Vietnam, has also said that prolonged sleep deprivation is torture, and recently denied the claim in the CIA inspector general report that he was among several members of Congress who approved its use.

Menachem Begin, the Israeli prime minister from 1977-83, tortured by the KGB as a young man, famously described sleep deprivation in his book, White Nights:

“In the head of the interrogated prisoner, a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep… Anyone who has experienced this desire knows that not even hunger and thirst are comparable with it,” he wrote. “I came across prisoners who signed what they were ordered to sign, only to get what the interrogator promised them” — time to sleep.

Although the technique was prohibited by President Obama, some worry it could be revived in the future because it at least gets people to talk, and it’s generally perceived as less offensive than waterboarding, head-slamming or forced nudity. “Sleep deprivation may be seen as a tempting technique to restore,” wrote reporter Greg Miller in the Los Angeles Times recently.

In justifying the use of sleep deprivation in a 2005 memo, Justice Department lawyers argued that it was okay for CIA interrogators to keep terror suspects awake for seven and a half days straight — because “even very extended sleep deprivation does not cause physical pain.” They relied for that claim on the work of university researchers who found that people who were deprived of sleep for just one night had an increased sensitivity to certain types of pain. Justice Department memos dated May 10, 2005 cited this study to support the conclusion that severe sleep deprivation of up to 180 consecutive hours might cause some increased pain but not “severe physical pain” — even when used together with slaps, stress positions, water dousing and “walling” — slamming a detainee’s head repeatedly against a flexible wall.

“Because sleep deprivation appears to cause at most only relatively moderate decreases in pain tolerance, the use of these techniques in combination with extended sleep deprivation would not be expected to cause severe physical pain,” wrote Steven Bradbury, a principal deputy assistant attorney general in the Office of Legal Counsel, who signed the memos. (Bradbury has since left the department and works at a private law firm in Washington. He did not return calls for comment.)

But those same academic researchers have since called the Justice Department’s use of their work “nonsense.” “To claim that 180 hours [of sleep deprivation] is safe in these respects, is nonsense.” Dr. James Horne, with the Loughborough University Sleep Research Centre, told the blog Obsidian Wings. “Prolonged stress with sleep deprivation will lead to a physiological exhaustion of the body’s defense mechanisms, physical collapse, and with the potential for various ensuing illnesses.”

In their studies, the doctors explained, the subjects were well-fed and could play video games and watch television. Detainees under interrogation, on the other hand, were often semi-starved and chained into place, not even allowed to go to the bathroom.

“In a manner, it’s like giving a drug to a patient: if you administer it in small doses for therapeutic reasons, it helps them. If you give it in huge volumes, it becomes toxic — and can even kill them,” another of the researchers cited, Dr. S. Hakki Onen, sleep specialist and geriatrician, told Time Magazine.

Although the Justice Department lawyers wrote that “extended sleep deprivation cannot be expected to cause ’severe mental pain or suffering,’” the doctors vigorously disagree.

After several days, “the mental pain would be all too evident, and arguably worse than physical pain,” Dr. Horne said to Obsidian Wings.

Notably, a combination of techniques similar to those used by the CIA has been ruled unlawful by the European Court of Human Rights. In the case Ireland v. U.K., the court held that a combination of sleep deprivation, hooding, wall-standing, continuous white noise, sleep deprivation and “the bread and water diet” violated international humanitarian law.

What’s odd, say former interrogators, is that the military knew this and for the most part, resisted using these techniques. The CIA, however, relying on inexperienced contractors who developed its interrogation strategies based on the military’s Survival Evasion Resistance Escape (SERE) training, seems to have completely ignored common knowledge.

“The point is you realize when you’re going through that [SERE] training, they tell you this isn’t about trying to get useful intelligence out of you, it’s about getting propoganda,” said Matthew Alexander, a 14-year veteran of the air force and leader of an elite interrogations team in Iraq and author of “How to Break a Terrorist.” (Matthew Alexander, seen here on The Daily Show, uses a pseudonym.) Sleep deprivation may be used for no longer than 48 hours in SERE training, according to the inspector general report. “They’re just trying to break down your will.”

“I think people misinterpreted that,” Alexander added. “Mitchell and Jessen, the psychologists, they took that learned helplessness theory, but they’d never done an interrogation. They were so off base.”

In its document, the government argues that these documents are exempt from the Freedom of Information Act because they would reveal “intelligence sources and methods,” notwithstanding that the Obama administration has said it’s no longer using those abusive methods.

In that regard, it’s much like the Justice Department’s argument that courts must dismiss lawsuits that claim the government engaged in torture or warrantless wiretapping, because they would reveal “state secrets” — even though, supposedly, the government doesn’t do those secretive things anymore.

Advocates for accountability, at least, might find a silver lining here. The government’s insistence on keeping the evidence secret would seem to provide a strong argument for why Congress and Attorney General Eric Holder ought to conduct their own aggressive investigation.

–

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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.

Former Vice President Dick Cheney (Associated Press)

For months, former Vice President Dick Cheney has said that two documents prepared by the CIA, one from 2004 and the other from 2005, would refute critics of the Bush administration’s torture program. He told Fox’s Sean Hannity in April:

“I haven’t talked about it, but I know specifically of reports that I read, that I saw, that lay out what we learned through the interrogation process and what the consequences were for the country,” Cheney said. “I’ve now formally asked the CIA to take steps to declassify those memos so we can lay them out there and the American people have a chance to see what we obtained and what we learned and how good the intelligence was.”

Illustration by: Matt Mahurin

Those documents were obtained today by The Washington Independent and are available here.  Strikingly, they provide little evidence for Cheney’s claims that the “enhanced interrogation” program run by the CIA provided valuable information. In fact, throughout both documents, many passages — though several are incomplete and circumstantial, actually suggest the opposite of Cheney’s contention: that non-abusive techniques actually helped elicit some of the most important information the documents cite in defending the value of the CIA’s interrogations.

The first document, issued by the CIA in July 2004 is about the interrogation of 9/11 architect Khalid Sheikh Mohammed, who was waterboarded 183 times in March 2003 and whom, the newly released CIA Inspector General report on torture details, had his children’s lives threatened by an interrogator.  None of that abuse is referred to in the publicly released version of the July 2004 document. Instead, we learn from the July 2004 document that not only did the man known as “KSM” largely provide intelligence about “historical plots” pulled off from al-Qaeda, a fair amount of the knowledge he imparted to his interrogators came from his “rolodex” — that is, what intelligence experts call “pocket litter,” or the telling documentation found on someone’s person when captured. As well, traditional intelligence work appears to have done wonders — including a fair amount of blundering on Khalid Sheikh Mohammed’s part:

In response to questions about [al-Qaeda's] efforts to acquire [weapons of mass destruction], [Khalid Sheikh Mohammed] revealed that he had met three individuals involved in [al-Qaeda's] program to produce anthrax. He appears to have calculated, incorrectly, that we had this information already, given that one of the three — Yazid Sufaat — had been in foreign custody for several months.

This is a far cry from torturing Khalid Sheikh Mohammed into revealing such information. It would be tendentious to believe that the torture didn’t have any impact on Khalid Sheikh Mohammed — he himself said that he lied to interrogators in order to get the torture to stop — but the document itself doesn’t attempt to present a case that the “enhanced interrogation” program was a factor, let alone the determinant factor, in the intelligence bounty the document says he provided.

The second newly released document — a June 2005 overview of information extracted from detainees — is, if anything, more caveated. In making a case that “detainee reporting” was “pivotal for the war against [al-Qaeda],” it says that “detainee reporting is often incomplete or too general to lead directly to arrests; instead, detainees provide critical pieces to the puzzle, which, when combined with other reporting, have helped direct an investigation’s focus and led to the capture of terrorists.” Khalid Sheikh Mohammed is the prime example here.

The document also discusses unraveling the network of Indonesian al-Qaeda affiliate Hambali after Khalid Sheikh Mohammed’s capture. There are repeated references to the value of “debriefings,” which the 2004 CIA inspector general’s report says are distinct from the “enhanced interrogation techniques” but can be used after they occur. For instance, “Debriefings of mid-level [al-Qaeda] operatives also have reported on specific plots against U.S. interests.” Indeed, in a section titled “Aiding Our Understanding [al-Qaeda],” a listed example is:

Abu Zubaydah’s identification early in his detention of [Khalid Sheikh Mohammed] as the mastermind of 11 September and [al-Qaeda's] premier terrorist planner and of ‘Abd al-Rahim al-Nashiri as another key [al-Qaeda] operational planner corroborated information [REDACTED].

Those revelations, as former Abu Zubaydah interrogator Ali Soufan has testified, came before Abu Zubaydah was tortured.

Similarly, the document contains accounts of how interrogators performed the traditional interrogation labors of cross-checking detainees’ accounts with each other to determine veracity, and particularly when cross-referenced with “large volumes of documents and computer data”:

For example, lists of names found on the computer [REDACTED] — a key [al-Qaeda] financial operative and facilitator for the 11 September attacks — seized in March 2003 represented [al-Qaeda] members who were to receive funds. Debriefers questioned detainees extensively on the names to determine who they were and how important they were to the organization. The information [REDACTED] helped us to better understand al-Qa’ida’s hierarchy, revenues, and expenditures, [REDACTED] as well as funds that were available to families.

Again, perhaps the blacked-out lines of the memos specifically claim and document that torture and only torture yielded this information. But what’s released within them does not remotely make that case. Cheney’s public account of these documents have conflated the difference between information acquired from detainees, which the documents present, and information acquired from detainees through the enhanced interrogation program, which they don’t.

In a statement, Tom Parker, the policy director of Amnesty International’s American branch, said, “Perhaps unsurprisingly, given Vice President Cheney’s track record, the two CIA memos released today are hardly the slam dunk we had been led to expect.  There is little or no supporting evidence in either memo to give substance to the specific claims about impending attacks made by Khaled Shaik Mohammed in highly coercive circumstances.”

But the point made by the CIA’s chief of the Office of Medical Services, that the use of so-called “enhanced interrogation techniques” on terror suspects under investigation and the use of those techniques on U.S. soldiers in SERE training is different is hardly a remarkable conclusion. In fact, critics have been making that point for months now. So is it really even possible that Bybee and Yoo didn’t consider the distinction? Did the lawyers really need a medical expert to tell them that repeated, persistent waterboarding, extreme sleep and food deprivation, stress positions and the range of other techniques that were used on terror suspects is different when used in the context of a real interrogation by hostile forces, than it is in military training by your own army?

Footnote 26 of the report makes the point that “the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant,” and “there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.”

Maybe it’s possible that the lawyers didn’t think of that themselves. And maybe it’s possible that, as I’ve noted before, they didn’t see how these techniques would “shock the conscience” — the Supreme Court’s standard for determining when government officials have violated the Fifth Amendment’s requirement of due process.

Maybe you’d even feel sorry for the poor OLC lawyers, who were just taking the information they were given and doing what they were told. Still, it would seem that any serious prosecutor probing whether CIA interrogators broke the law would have to also ask how and why the DOJ’s lawyers advised them based on a factual scenario that seems so patently implausible.

If that vagueness was intentional, might it also have been criminal?

As the report explains, CIA interrogators had to sign an acknowledgment that they’d read the Department of Central Intelligence guidelines.

Although the DCI Guidelines are an improvement over the absence of such DCI Guidelines in the past, they still leave substantial room for misinterpretation and do not cover all Agency detention and interrogation activities.

If the Justice Department lawyers who approved those guidelines knew they left substantial room for misinterpretation but approved them anyway, they could be implicated in encouraging the interrogators’ transgressions. Whether that’s a criminal offense, an ethics violation or just sloppy lawyering, it directly implicates the Justice Department in the CIA’s actions.

Will a criminal probe address that? As it’s defined by DOJ, it’s not clear. But what is clear is that the Justice Department played a key role in the development and approval of policies that led to the torture and abuse of detainees. And one way or another, any real probe into what happened and how to keep it from happening again will have to address that.

That’s what the 2004 CIA inspector general report, released this afternoon, says.

Discussing the “extreme interrogation techniques” including waterboarding, the report acknowledges that “with respect to two detainees at those [secret CIA] sites, the use and frequency of one EIT, the waterboard, went beyond the projected use of the technique as originally described to DOJ.”  No matter.  Because the CIA went ahead and obtained DOJ’s permission to go ahead and use the more extreme versions of the technique, with more frequency than it had previously approved.

The reports says: “The Agency, on 29 July 2003, secured oral DOJ concurrence that certain deviations are not significant for purposes of DOJ’s legal opinions.”

The Justice Department, then, approved the more extreme and frequent use of the technique — the one that Holder, President Obama and most legal experts have called “torture.” How will Holder be able to limit those prosecutions to only CIA officials?  This is exactly the type of evidence that I think will take the investigation not only up the chain of command at the CIA, but should shift it over to the Justice Department as well.