A little noted newspaper article shows the kind of unexpected issues that will likely be popping up in the years to come. Changes in policy will not be enough to remove all traces of the torture program.
For more on pruning back executive power see Pruning Shears.
No Associated Press content was harmed in the writing of this post
This week may have foreshadowed the kind of twists and turns we can look forward to as more information about the US torture program becomes public. Jeff Kaye took note of a Washington Times story about how Jonathan Fredman, the top CIA lawyer for the agency’s interrogation program, disputes the record of an October 2002 interrogation meeting. According to the minutes this is where Fredman uttered the immortal words about interrogation, “If the detainee dies you’re doing it wrong.” It seems he or an ally does not wish for that to be the lasting impression of him because the Times article rather remarkably disputes the notes themselves.
Meeting notes seem to me to be fairly uncontroversial things. It certainly is rare for contemporaneous notes of one to spark debate. The usual procedure is basically: Have someone scribble down the main points people are making during the meeting, then afterwards type them up and send them out. Maybe something needs to be sharpened or modified in some way, but according to the Times “Mr. Fredman says the writer of the 2002 memo misconstrued enough of his points that the memo is unreliable.” That gets my antenna up. While I suppose it is possible for someone to get huge swaths of a meeting fundamentally wrong it does not seem very likely. It sounds more like a somewhat desperate and implausible attempt to rewrite history.
Fredman’s efforts to reshape an already-settling record is not what really interested me in Kaye’s post, though. It was his description of how the Army Field Manual (AFM) was lurking below the surface of the torture debate and will sooner or later emerge as yet another large knot to untangle. I had been under the impression that the military had a much stricter standard for interrogations, and once president Obama put the CIA under the AFM we had at least ensured torture would not be an issue going forward. It will not be quite so simple. Kaye pointed out in another post that in September 2006 Donald Rumsfeld ordered the overhaul of the AFM. The revised edition contained a section, Appendix M, which may have been initially intended to be classified. (Given what it contains this is yet another reason to be extremely skeptical of classification claims, for national security or other reasons.) It authorizes a set of interrogation procedures that go by the euphemism Separation. Kaye analyzes them, then arrives at the following commonsense formulation: “The inclusion of a procedure that so obviously needs medical monitoring should be a red flag that it violates basic humane treatment.”
It turns out the whole “get it under the AFM=problem solved” calculus doesn’t work. The AFM is not what it used to be, and we now have to look forward to the prospect of people who performed interrogations under what had previously regarded as an unassailably legal set of guidelines now finding themselves on the wrong side of the Geneva Conventions. We can look forward to defenses such as this from Decline and Fall:
If you’re concerned about Appendix M, I suggest working toward an update of the Geneva Convention on Torture to reflect the changed face of combat in the 21st Century. The Army Field Manual is not the problem, the outdated definitions (and only the outdated definitions, in my opinion) of the GC are.
This is the kind of framing I expect to see once the issue becomes more prominent (which I think it will). It puts adherence to the AFM above our treaty obligations, and implies that violating the Geneva Convention is acceptable if policymakers conclude its definitions are outdated. The use of the term “detainee” to specifically avoid Geneva terminology – and the humane treatment such a designation carries – is not a willful effort to violate the law but a legal black hole that those quaint Geneva Conventions are inadequate to address. Expecting for us to formally withdraw from such archaic agreements prior to violating them, or inquiring as to legal jeopardy for those who do so, is a vengeful exercise in criminalizing political differences.
We will probably continue to see issues like this; be prepared for more unpleasant surprises. For as nice as it would be to believe the systematized torture program begun during the Bush years is a thing of the past, key pieces of its infrastructure are still in place. Sometimes they are not in plain view. But if they are not dismantled when brought to light they will make it that much easier for a similar program to be reconstituted at the flip of a switch. We have to deal with them – and the arguments that support them – before the political winds shift again.
