The Pentagon Torture Papers

by emptywheel

Just a follow-up to my post on the ACLU subpoena. The ACLU motion to quash the subpoena includes a good deal more on the document the government wants back. It appears that BushCo altered their torture policy in December 2005--and revelation of the fact that they did so--and how they did so--would be embarrassing enough they're willing to invent new rules to get that document back.

First, the motion provides a general description of the document.

On October 23, 2006, the ACLU received "over the transom" (i.e., without having solicited it) a three-and-one-half page document, marked "Secret," which provides a set of general policy guidelines on a matter of longstanding concern to the ACLU. Its date of promulgation also raises important questions. The ACLU did not release or otherwise disseminate the document upon receipt, and it has not done so since. However, the ACLU reserves the right to do so in the future, and retained the document for further consideration. Although the word "Secret" is printed as part of the text on each page, the document does not indicate by whom, or pursuant to what authority, the marking was made.

To support its argument that dissemination of the document does not qualify under the Espionage Act, the ACLU document provides more on its content.

As the Court will see when the government provides it a copy of the document sought by the subpoena, which we urge the government to submit or the Court to request that the government do so, the document is nothing more than a policy, promulgated in December 2005, that has nothing to do with national defense. Release of the document might perhaps be mildly embarrassing to the government, but the document contains no information concerning matters such as troop movements, communications methods, intelligence sources or the like. To the contrary, the document appears to be a classic example of overclassification.

In other words, the government doesn't want it because it'll reveal how its policy on torture changed last December, not because it'll damage national security. And note the comment about the date in the first excerpt--apparently, the government did something in December of last year that it doesn't want you to know it did.

Just by way of reminder, the Administration originally justified its torture policy using the Bybee Memo, which was written on August 1, 2002. Thanks to Sy Hersh, the Abu Ghraib scandal broke in April 2004. In an effort to "come clean" on torture, the Administration did a document dump--including the Bybee memo--on June 22, 2004 (Bybee was, by that point, already secure in his lifetime appointment to the Ninth Circuit Court of Appeals). Then, after BushCo won the election, they had to find a way to get Abu Gonzales approved by the Senate to be Attorney General. So in January 2005--12 months before this document was written--they effectively repudiated the memo. Kind of. Here's John Dean's description of what happened:

Of course, Gonzales was asked about the Bybee memo during his confirmation hearing. At first, he more or less embraced the memo.

Senator Leahy asked Gonzales if he agreed with the memo's definition of torture -- as requiring "organ failure, impairment of bodily function or even death." At first, Gonzales tried to dodge, answering, "Senator, in connection with that opinion, I did my job as counsel to the president to ask the question."

But ultimately, not only Senator Leahy, but almost every member of the committee, directly or indirectly quizzed Gonzales on the memo. Still, his position remained less than clear.

So near the end of the hearing, the committee's chairman, Senator Arlen Specter, tossed Gonzales a softball question to allow him to clarify his position: "Do you agree with the statement in the memo, quote, 'The Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield,' close quote?"

Specter -- a skilled attorney and former prosecutor -- was plainly trying to rehabilitate his witness, and allow Gonzales to improve on his earlier half responses. Almost certainly realizing what the chairman was doing, Gonzales unhesitatingly responded, "I reject that statement, Senator."

By these words, then, Gonzales too repudiated the Bybee memo.

Click through and read the rest of Dean's analysis.

Call me crazy. But the fact that the Administration is using Pentagon Paper-like tactics to get this December 2005 policy back suggests that what they told us about their torture policy in January 2005 in order to get Abu Gonzales approved--and what really was their policy--are two different things.

Updated: It strikes me that the is one more topic this memo may relate to, given the timing: "Black Sites."

The key aspect is the timing of the memo: December 20, 2005. Well, Dana Priest's blockbuster article on Black Sites was published November 2, 2005. She continued to have A1 stories on the prisons throughout November and December--and by December the rest of the media was catching up to her. So if the government published a new policy on prisons on December 20, it would be a response to Priest's articles--after they had been denying the prisons for almost two months.

One more word on the timing. The Military Commissions Act (otherwise known as the "Gut Habeas Act") was passed on October 17, 2006. Which means this document was sent to the ACLU just a week later. And, as you'll recall, just before that they gathered all the people who had been in these illegal prisons up into Gitmo just before that period, so they could "try" them and absolve themselves of legal implication. Then, DOJ finds out that ACLU has this document in late November (or they wait until after the election to pester the ACLU, same difference). Which is where we are now. If the document relates to the illegal prisons, it is quite possible BushCo is trying to clean up all evidence that they existed--and in which case their change of policy in December 2005 would be proof of what they changed their policy from. Which would explain why they would use Pentagon Paper tactics to get this paper back--they want to stay out of jail themselves.

In either case, the document seems to relate to habeas corpus, because in Anthony Romero's statement on this, he adds a detail not included in the larger motion.

The ACLU has also called on Congress to demand compliance with the Geneva Conventions, exercise meangingful oversight of the Administration's torture and detention practices, and restore the writ of habeas corpus for detainees that was unconstitutionally abridged in the recently enacted Military Commissions Act.

Update:

Over at DKos, jorndoff has a comment suggesting what I think is the most likely content of the document.

Another 12/05 happening    

   

 

...was the McCain anti-torture bill.

Reports that Bush wouldn't veto the bill look to have started on 12/15/05. Bush's presidential signing statement nullifying the detainee provisions in the bill occured on 12/30/05. The 12/20/05 memo could include the groundwork for the language later included in the signing statement.

 

Comments

[mainsailset]

Yes and won't it be interesting to see who signed this 3-1/2 page document. Any bets on Alberto?

[prostratedragon]

Something that shouldn't have been ordered was rescinded, maybe? I'm taking the ACLU's descroption of the memo itself as "mildly embarrassing" at face value. An order to be sure not to slip up and, say, waterboard prisoners would be embarrassing, but far less so than a prior order permitting or prescribing waterboarding.

[prostratedragon]

Coincidentally, in today's WPost, " '04 Pentagon Report Cited Detention Concerns":

A previously undisclosed Pentagon report concluded that the three terrorism suspects [including Jose Padilla] held at a brig in South Carolina were subjected to months of isolation, and it warned that their "unique" solitary confinement could be viewed as violating U.S. detention standards.

...

Thiessen's report is part of a larger review by Vice Adm. Albert T. Church III, then the Navy's inspector general. Rumsfeld ordered the wide-ranging military investigation to determine whether any interrogation policy for terrorism suspects had caused detainee abuse in U.S. military detention facilities.

The Church report presented to Congress in March 2005 concluded that there was no deliberate high-level policy that led to the numerous cases of mistreatment. Instead, it blamed inept leadership at low levels and confusion over changing interrogation rules.

Church focused on the conditions for foreign nationals held at Guantanamo Bay. But the details of what Thiessen found in the Charleston brig were not mentioned. When asked, high-ranking military officers asserted that the brig fared well in the review.

[Ken Larson]

Suggest you make a link between Vietnam and Iraq. There are good points in your article. I would like to supplement them with some information:

I am a 2 tour Vietnam Veteran who recently retired after 36 years of working in the Defense Industrial Complex on many of the weapons systems being used by our forces as we speak.

If you are interested in a view of the inside of the Pentagon procurement process from Vietnam to Iraq please check the posting at my blog entitled, “Odyssey of Armements”

http://www.rosecoveredglasses.blogspot.com

The Pentagon is a giant,incredibly complex establishment,budgeted in excess of $500B per year. The Rumsfelds, the Adminisitrations and the Congressmen come and go but the real machinery of policy and procurement keeps grinding away, presenting the politicos who arrive with detail and alternatives slanted to perpetuate itself.

How can any newcomer, be he a President, a Congressman or even the Sec. Def. to be - Mr. Gates- understand such complexity, particulary if heretofore he has not had the clearance to get the full details?

Answer- he can’t. Therefor he accepts the alternatives provided by the career establishment that never goes away and he hopes he makes the right choices. Or he is influenced by a lobbyist or two representing companies in his district or special interest groups.

From a practical standpoint, policy and war decisions are made far below the levels of the talking heads who take the heat or the credit for the results.

This situation is unfortunate but it is ablsolute fact. Take it from one who has been to war and worked in the establishment.

This giant policy making and war machine will eventually come apart and have to be put back together to operate smaller, leaner and on less fuel. But that won’t happen unitil it hits a brick wall at high speed.

We will then have to run a Volkswagon instead of a Caddy and get along somehow. We better start practicing now and get off our high horse. Our golden aura in the world is beginning to dull from arrogance.

[Mary]

This is exactly where and how cases like the AIPAC case come back to haunt, though. Under the reasoning in that case, which Gov is now testing out, receipt of classified info is illegal too. You can't cherrypick and sign on for some, but not others.

So Judy Miller should go to jail if she won't reveal or turnover, but not Romano? Every attack on the first amendment, even ones involving people that are scum, has tremendous ability to come back and bite the best. fwiw

I'm guessing a torture/interrogation revision, and release when folks thought it was "safe" bc of the amnesty in the MCA.

OTOH, if we ever had a credible justice dept with credible prosecutors in the future, or a good indep. pros., I'm not so sure the amnesty provision "works."

[emptywheel]

Mary

That's my point in my last thread--they're not using the precedent of the AIPAC trial--IN THE LEAST.

So all the squawking about precedent for that is either moot--or the notion of judicial review will be upheld.

Judy Miller should go to jail if she is deliberately shielding her cohort. No one is suggesting Romano will go to jail--but it's an assault on the First Amendment anyway. There is still the question of what judicial review will say/do. But in any case, we're a far cry from parallelism between Judy and Romano.

[emptywheel]

Let me explain that further.

Judy went to jail for contempt of court, because she refused to respond to a subpoena related to an investigation. She would have had to testify under any shield law in this country, and by choosing not to, she was held to be in contempt. The difference between that case and this is that Fitz was investigating, using a GJ in good faith, asking for information for which there is a great deal of precedent.

Romero is being subpoenaed for something not related to an investigation. They know who the person who leaked this document is. They're not asking for one copy of the document, they're asking for all copies (and the assurance that it has been removed from the ACLU computers). Since it's clear the GJ isn't asking for information, it is not acting in good faith. Furthermore, asking for this information violates the Pentagon Papers precedent. The cases are very different. And, as I said, Judy in no way sets a precedent.

The AIPAC case is closer--because of the use of the Espionage statute. But there, they're going after people for passing on information. ACLU hasn't passed on any information, yet DOJ is going after them anyway.

But the whole point is, there is no precedent for what they're doing--not Judy, not AIPAC. If anything, the precedent is Pentagon Papers, which of course is precedent to quash the subpoena.