BushCo Plays Chicken and Loses

by emptywheel

So remember that document that was so sensitive that BushCo was willing to invent new functions for subpoenas in an effort to confiscate the document from the ACLU? Well, it now turns out ... not so much.

Just when things were going to get interesting, when BushCo was going to have to defend why they were using a grand jury--the function of which is investigatory--to perform a function that was clearly not investigatory, voila! Document declassified!! No doubt they've put their novel interpretation of grand jury subpoenas away on ice so they can bring it out again. But for now, ACLU has won this particular game of chicken.

So what was the big deal?

Well, on first review, not much. The document provides guidelines on when and who can take pictures of "enemy prisoners of war (EPWs) and detainees in the Iraqi Theater of Operations." The document distinguishes between the pictures news media  and Public Affairs Officers and soldiers are allowed to take. Here's the difference:

The news media and PAO are generally permitted, and to some extent even encouraged, to photograph EPWs and detainees from the point-of-capture throughout the entire detainment process. The photographs or other visual media must be limited such that the EPWs and detainees are not displayed in any manner that might be interpreted as holding them up to public curiosity...

[snip]

U.S. Soldiers are prohibited from such photography unless done in an official capacity.

No big deal, right? A fairly non-descript document. Well, that's how the ACLU is spinning it.

"As we have said all along, the issue was not the content of the document, but the government's unprecedented effort to suppress it," said ACLU Legal Director Steven R. Shapiro.  "Now that the document has been declassified, it should be plain for all to see that it should never have been classified to begin with, and that the grand jury subpoena was overreaching and inappropriate."

Romero added: "We saw this from the start as a fight not over a document but over the principle that the government cannot and should not be allowed to intimidate and impede the work of human rights advocates like the ACLU who seek to expose government wrongdoing." 

But as Romero notes in the ACLU press release on this--and as the ACLU noted in their court filings--the big scandal here is timing.

Romero noted that the memorandum was issued more than a year after the infamous Abu Ghraib photos came to light.  The documents, he said, "raise the question of whether the guidelines were in place prior to the Abu Ghraib scandal and if not, why it took more than a year after the scandal to issue a policy."

In fact, the document provides a list of the relevant rules regarding photographing detainees, which seem to make it clear that the guidelines were not in place. Here's a chronology of BushCo Defense regulations related to photography (the document also lists earlier precedents, such as the Geneva Convention):

January 2002: Supplemental Public Affairs Guidance on Detainees
February 2003: Public Affairs Guidance on Embedding Media
March 2003: Public Affairs Guidance for Media Coverage of EPWs and Detainees
July 2, 2005: Public Affairs Guidance for High Value Individual Capture
August 1, 2005: 101st Airport Detention SOP
October 22, 2005: USCENTCOM Policy Prohibiting Photographing of Filming Detainees ... or Posting Visual Images Depicting Human Casualties
November 7, 2005: Detention Operations at Multinational Corps-Iraq

Or, to put it into context:

January 20, 2002: Bybee to Abu Gonzales memo specifying that common article 3 of the Geneva Convention does not apply to "an armed conflict between a nation-state and a transnational terrorist organization."

January 2002: Supplemental Public Affairs Guidance on Detainees affirms Geneva Convention wrt media photographs.

February 2003: Public Affairs Guidance on Embedding Media encourages media to photograph detainees, within certain guidelines.

March 2003: Public Affairs Guidance for Media Coverage of EPWs and Detainees allows photos (within guidelines) but prohibits photographs of custody operations or interviews.

March 2003: Iraq War starts.

April 2004: Sy Hersh breaks Abu Ghraib story.

July 2, 2005: Public Affairs Guidance for High Value Individual Capture permits photographing high value detainees (within guidelines).

January 2005: Abu Gonzales renounces the Bybee Memo, sort of.

July 21, 2005: Cheney attempts to persuade McCain and others not to restrict detention policies.

The Bush administration in recent days has been lobbying to block legislation supported by Republican senators that would bar the U.S. military from engaging in "cruel, inhuman or degrading treatment" of detainees, from hiding prisoners from the Red Cross, and from using interrogation methods not authorized by a new Army field manual.

August 1, 2005: 101st Airborne Division Detention SOP states that "detainees will not be photographed, humiliated or placed in positions with sexual overtones." Division General Order Number 1 (not clear if this is part of the SOP or not) prohibits soldiers taking photographs of detainees unless conducted pursuant to official duties, which include, intelligence gathering and official investigations." [my emphasis]

October 5, 2005: McCain proposes anti-torture amendment to military funding bill. The amendment prohibits degrading treatment of prisoners.

October 20, 2005: The week before the House and Senate meet to resolve the bill, Cheney makes a third attempt to convince McCain not to restrict the use of torture, which McCain again rejects.

October 22, 2005: USCENTCOM Policy Prohibiting Photographing of Filming Detainees ... or Posting Visual Images Depicting Human Casualties prohibits photographing or filming detainees as well as the possession, distribution, transfer or position ... of visual images depicting detainees." [my emphasis]

November 7, 2005: Detention Operations at Multinational Corps-Iraq prohibits coalition and Iraqi forces from photographing detainees.

December 13, 2005: The Army approves new Field Manual, which seems to push the limits intended by McCain's amendment.

December 19, 2005: The House passes the Conference Report.

December 20, 2005: The Administration writes the document clarifying its policy on photographing detainees.

December 21, 2005: The Senate passes the Conference Report.

December 30, 2005: President Bush signs the Appropriations Bill, issuing a signing statement "interpreting" the McCain amendment.

So here's my take on this. First, it is utterly clear. The Administration saw fit to regulate media photographs of detainees (though it encouraged such pictures, which is no doubt why we got so many pictures of Spider Hole Saddam). But it did not regulate soldier's photographs of detainees until such a point when it was clear Congress was going to regulate detainee treatment itself. Indeed, given the Bybee memo of January 2002 (note--this is not the Bybee memo, just a different one expanding our torture capabilities), which declares common article 3 inapplicable to the GWOT, it seems that the interpretation in effect during Abu Ghraib was that photos were okay. And note, too, the caveat that the 101st Airborne made (this document was written by a JAG in the 101st Airborne)--that photographs taken as part of interrogation appear to be allowed. And finally, note that they only regulate the MNC after Cheney loses his battle with McCain to limit his amendment just to US personnel and just to the military.

One reason the Administration tried to confiscate this memo, it appears, is that the memo reveals that the Administration didn't prohibit soldiers from photographing detainees until after Abu Ghraib--indeed, until it became clear Congress was going to regulate detainee treatment.

But there is one more reason they may have tried to confiscate this document. As the ACLU explains,

The ACLU recently appeared in federal court to challenge the government's appeal of an order directing the Defense Department to release 21 photographs depicting abuse of detainees by U.S. forces in Afghanistan and Iraq.

It's unclear when these photographs were taken, and I'm unsure whether this relates to the ACLU's ongoing lawsuit against Rummy and others for torturing some Afghani and Iraqi detainees, but it seems that this memo might help the ACLU get these images (by proving that photos were not regulated until after these 21 photos were taken), and therefore to prove its case against Rummy.

Comments

[mainsailset]

Holy Cow, we could have gone to Mars and back with the wasted intellect, energy & funding Bush is employing to cover his ass on so many fronts. Of course since Rummy doesn't have the luxury that Conrad Burns has of a left over defense team cookie jar and Libby has his set of pocket books already reserved, it will be interesting to see if Rummy's defense $ come out of Halliburton's pocket. Rummy is ripe for the picking for one of these suits.

[Sara]

Remember, one of the fundamentals of using sexual pictures, or otherwise humuliating pictures had to do with reproducing and circulating these as a means for destroying clan and tribe leadership, or significant relationships within the insurgency. It has to do with what rubs against the grain of Iraqi-Muslim culture. These are tactics Rummy and apparently some in CIA borrowed lock, stock and barrel from Israeli sources, and have long been used against Palestinians.

It's a little difficult to write a policy against something when you have to obscure the origin of tactics, and at the same time prohibit something that is core to your own tactics.

[KM]

It's a little difficult to write a policy against something when you have to obscure the origin of tactics, and at the same time prohibit something that is core to your own tactics.

An nice concise statement of a very common pattern with this Admin.

[LabDancer]

I don't dispute your suggestion of a good and revelatory reason to assail BushCo's timing in pursuing retrieval and de-de-classification of this memo as disingenuous. However, as to your premise that such is the biggest 'scandal' in this story, I demur.

The CONTENT of this memo evidences that the Bush administration, habitually inclined as we know it is to promote prejudice, foster myths, hide truths, distort facts and foster cover ups (eg. Valerie Plame Wilson), and which as we know routinely twists and perverts existing laws and regulations to the same ends (eg. Flynt Leverett), also promulgates WRITTEN POLICIES which AIM encourage those ends - by DISCOURAGING anyone in government from blowing a whistle.

Not wishing to steal steam from your frequent visiter William Ockham, does not Ockham's Razor apply here?

I suggest that while the timing of this effort by the Bush adminisration to de-de-classify suggests that the administration may have been asleep at the switch until lawyers working in defence of Donald Rumsfeld to lawsuits filed on behalf of Abu Ghraib detainees noted the great inconvenience to their task posed by photographs, both those already in the public domain and those maybe to come, it is this memo itself, ITS contents, which I would be concerned about were I in their position.

Since it is a straight forward fact of life that detainers have complete control over whether detainees are available to be depicted in photographs taken by anyone other than themselves as detainers, putting a lid on photographic evidence of detainee abuse by third parties would not require any 4 page memo replete with cross-references. All that would take would be: 1) a one-line order such as "Under No Circumstances Will You Permit Any Third Party To Photograph Any of Prisoner", and a one-line warning to bring home the consequences: BREAK THIS RULE AND IT WILL BE YOUR ASS.

But for the most part, if not entirely, the photos which depicted those detained at Abu Ghraib being subjected to abused by their detainers, and which depicted detainees being subjected to treatment any reasonable person would characterize as far worse than is implied by term word 'abuse', were NOT taken by journalists or other third parties to the detention.

They photos were taken by DETAINERS.

It seems to me that the thrust of this formerly classified memo Is to direct the intended reader, the detainer (Call him or her "Detainer Don" or "Detainer Dawn" if it helps to visualize.), how his or her boss, the government, interprets the relevant provisions of the Geneva Conventions -- namely, as follows:

1) Under no circumstances will your boss tolerate you the direct detainer allowing any journalist or other third party to photograph any detainee in such a way which depicts that detainee being abused or worse, by you or by any of your fellow detainers, WHICH MEANS that even if you imagine yourself motivated by some misplaced burst of humantanity, YOU CAN TAKE THIS TO THE BANK - you WILL be punished, maybe even court martialed, and we will do our worst to make sure you do time in a dungeon in, say Saudi Arabia or Egypt, for as long a period as we can get away with, or a term of imprisonment in a military prison, and you, and your wife and kids if you got'em, WILL be kissing your vet benefits goodbye.

2) Under no circumstances will you as detainer take any photograph of any detainee which, if it ever were to be seen by anybody else, could reveal anything at all of informational importance whatsever about your detainee, in particular your detainee's identity, and which, entirely incidental to this restriction, an unintended benefit (to us) if you will, could embarrass your boss, WHICH MEANS not that you can not take any photo of any detainee, but since there are lots of precedents for other clowns in your position taking footlockersfull of photos which as far as your government is concerned don't add any constructive to our War on Terror, other than increasing the value of stock in companies that make antacid, it's possible it will help if we make this crystal clear - DO NOT TAKE ANY PHOTO AT ALL, because if you do, and if we do not like it, you WILL find yourself in front of a court martial trying to explain how you think your "duties" compelled you to take that photo, to a panel of officers chosen by us from an ever-diminishing pool of those still willing to Stay the Course.

I see this as the prime motivation behind the memo being drafted: Any and all 'informational' value that is capable of being taken from any photo any journalist or third party is permitted to take in strict compliance with the policy articulated in this memo is limited to whatever one might take from it as to the physical condition of a detainee. And the memo lacks absolutely no clarity on this: any such complying photo which MIGHT be interpreted by some left wing NGO or blogger as showing that a particular detainee has been abused, or worse, shall contain this element critical to deniability - the detainee's anonymity.

So, I posit that the government's now aborted efforts to retrieve this formerly classified memo, amount to putting the ALCB to some grief and expense about a nasty genie that no longer could be stuffed back in the bottle: a policy with gravely serious provisions for hiding evidence potentially vital to the ongoing debate on detainee treatment, and which itself evidences a perverse interpretation of the relevant provisions of the Geneva Conventions.

LabDancer

[emptywheel]

Sara

Thanks for pointing that out--it's a point I try to remind folks of, so we keep at the forefront what we were trying to do in Abu Ghraib: create informers. Those folks HAD no information, we were just trying to humiliate them enough to be able to blackmail them into flipping for us.

Btw, I don't know if you've read the Bybee memo, but it does rely on Israeli precedent. I thought Neocons weren't supposed to use other nations' laws as precedent?

[MinorRipper]

Great post, thanks. Don't know if you've seen these three short videos from Iraq yet or not, but both show the US Military engaging in some very dubious actions. I have them up on my site at www.minor-ripper.blogspot.com