Defining "Humane" Down, Part III -- The Schmidt Report

Marty Lederman

The term "Orwellian" is so routinely used to describe the degradation of common meaning in public discourse that it's lost much of its rhetorical oomph. But if ever it were appropriate to invoke that hoary adjective, perhaps now's the time. Recall the Ministry of Truth in "1984": "WAR IS PEACE; FREEDOM IS SLAVERY; IGNORANCE IS STRENGTH," right? Well, would you believe . . .

"ABUSE IS HUMANE TREATMENT"?

As I've discussed several times on this blog—most recently here and here—on February 7, 2002, the President issued a directive requiring the Armed Forces to treat al Qaeda and Taliban detainees "humanely." (This obligation does not extend to the CIA, which is free to treat detainees inhumanely.) Yet it has been increasingly difficult to square that directive with what we now know about the interrogation techniques that the Department of Defense subsequently approved for use at Guantanamo and elsewhere.

Part of the problem is the Administration’s convenient failure to define what it (or the President) means by "humane treatment." (I’ve previously explained, for instance, that Attorney General Gonzales appears to have adopted an extremely narrow understanding of the term.) This uncertainty is starkly confirmed in a military report issued yesterday by Lt. Gen. Mark Schmidt and Brig. Gen. John Furlow, describing the results of their investigation into FBI allegations of Detainee Abuse at Guantanamo.

The Report itself (like the Church Report before it) is classified and therefore not available to the public. (This policy of secrecy with respect to the Administration's internal reports of detainee abuse is, in and of itself, a major scandal, especially in the wake of the publication of the much-more-sensitive 9/11 Commission Report—but that's a topic for another post.) But the Pentagon has released a 29-page Executive Summary, which concludes with a recommendation (p.28) that the military focus on deriving a definition of "humane treatment." The lack of a working definition, however, does not deter the Schmidt Report itself from reaching some fairly remarkable conclusions about the "humane" treatment of detainees at GMTO.

The Schmidt Summary explains in great detail that certain interrogation techniques approved and employed at GTMO—particularly those used on Mohammed al-Qahtani, which I've previously described—were "abusive" and "degrading," and further reveals that the interrogation of another "high-value" detainee included unlawful threats against the lives of the detainee and his family. And yet then the Report somehow, and without any explanation whatsoever, concludes that all treatment at GTMO was "humane"—indeed, that the investigators found "no evidence" of any "inhumane treatment" at Guantanamo!

Abusive and degrading . . . yet humane. Speaks volumes, doesn't it?

That is not, however, the most alarming thing about the Schmidt Report. More disturbing still is the Report's repeated assertions that the techniques in question—which included, for example, having female interrogators physically seduce and taunt a Muslim detainee; forcing him to wear a bra and placing a thong on his head during interrogation; tying him to a leash, leading him around the room and forcing him to perform a series of dog tricks; stripping him naked; and pouring water on his head during interrogation 17 times—are not only "humane," but also are authorized by Army Field Manual 34-52. Field Manual 34-52 has, since the 1960's, defined the interrogation techniques that are acceptable within the military even for POWs who are entitled to the protections of the Geneva Conventions.

Until now, the debate over the Bush Administration's interrogation policies has been about whether and why it was permissible for the Administration to go far beyond Manual 34-52 in its coercive treatment of detainees. But if, as the Schmidt Report concludes, the techniques used at GTMO are authorized by the Army Field Manual itself, it then follows that the military may use those techniques on any detainees, including POWs, anywhere in the world, in any conflict. Accordingly, by virtue of the Schmidt Report itself, this is not simply about al-Qahtani and other high-level detainees, nor about what is permissible at Guantanamo. Rather, it presages a radical transformation of what is deemed acceptable, lawful treatment of U.S. military detainees across the board—an erosion of the Geneva-based standards that have been the basis for the military's training and practices for the last few decades.

How is it possible that the Schmidt Report could have reached such a radical conclusion? The Report concludes that the techniques used at GTMO are examples of what Manual 34-52 calls the "Futility" and "Ego Down" techniques. In the Army Field Manual itself (see pages 3-18 to 3-19), these techniques describe forms of questioning and psychological, verbal gamesmanship, designed to induce a detainee to reveal information by, for instance, feeding him disinformation that convinces him that all hope is lost. At GTMO, however—and in the Schmidt Report—these categories are fundamentally transformed, to the point where they are almost unrecognizable. In particular, the "Futility" technique now apparently includes "female military interrogators perform[ing] acts designed to take advantage of their gender in relation to Muslim males" (p.7). So, for instance, a female interrogator touching a Muslim detainee from behind, rubbing against his back, touching his knee and shoulder, whispering in his ear that his situation was futile, running her fingers through his hair, etc., is now characterized as an "act used to highlight [the] futility of the detainee's situation," and thus as an "authorized technique" under the Army Field Manual (p.7—and see more of the same on pages 15-16).

The military also subjected detainees to bombardment with what the Report euphemistically calls "Futility Music"—Metallica, Britney Spears and "Rap music" are singled out for special mention (pp. 9, 16-17)—along with strobe lights. This technique is said to be authorized under the auspices of the "Incentive" and "Futility" Field Manual techniques, because it includes (p. 16) "acts used as reward for cooperating or to create futility in not cooperating." [Presumably the "reward" for cooperating would be for the interrogator to turn the music down, or switch to Handel, or some other such "reward"—analogous to the notion of Winston Smith being "rewarded" by removal of the rats in Room 101.]

Most strikingly, on page 19 of the Executive Summary, the following techniques used on al-Qahtani are among the techniques that are now understood to be "authorized" under the Army Field Manual as examples of the "Ego Down" and "Futility" techniques:

-- forcing a detainee to wear a bra and have a thong placed on his head during interrogation;

-- tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks;

-- forcing him to dance with a male interrogator;

-- stripping him maked;

-- placing Korans on a television "as a control measure";

-- and pouring water on the detainee during interrogation—17 times.

Although Schmidt ultimately concludes (p.20) that these techniques cumulatively were abusive and degrading, nevertheless they weren't inhumane—and, of course, they're authorized by the Army Field Manual . . . . Thus, Schmidt's recommendation is that Commander Geoffrey Miller be held accountable, not for permitting the (authorized) techniques themselves, but merely for "failing to supervise the interrogation." (Even this modest recommendation was to no avail: Gen. Bantz Craddock, head of the U.S. Southern Command, declined to follow Schmidt's recommendation because all of the techniques were authorized, thereby in effect absolving Miller of responsibility. This should not be surprising: Miller is the key figure connecting the Pentagon itself to what happened in the field at GTMO and in Iraq; he knows where the (proverbial) bodies are buried.) [In his testimony on Wednesday, General Craddock explained that his disapproval of Schmidt's recommendation was based on the fact that the al-Qahtani interrogation "did not result in any violation of a U.S. law or policy." That is to say—there is, in the view of the SOUTHCOM commander, no U.S. law or policy that forbids tying a GTMO detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks, using female interrogators to humiliate and seduce him because he is a Muslim, and pouring water on his head during interrogation 17 times.]

Once again, what's most disturbing about this is not the whitewash of what occurred at GTMO, but what it portends for the military as a whole. The Army Field Manual, recall, is expressly designed to describe the techniques that the military may employ , consistent with the Geneva Conventions, and even as to POWs who are fully protected under Geneva. (Note, also that on April 16, 2003, when Secretary Rumsfeld specifically approved the use of the "Pride and Ego Down" technique at GTMO, even he emphasized that it was not to be employed "beyond the limits that would apply to a POW.") Until yesterday, there would have been no dispute that the techniques described in the Schmidt Report would clearly be impermissible under Geneva (and under the Army Field Manual) for use on a detainee who is a POW. [UPDATE: Indeed, when Staff Judge Advocate Diane Beaver wrote her original memo proposing that such aggressive new techniques be approved for use in the case of al-Qahtani, she explained that the procedures outlines in FM 34-52—which she deemed inadequate with respect to al-Qahtani and others—"are constrained by, and conform to the GC and applicable international law." The whole point of her proposal was to permit interrogators at GTMO to use techniques that were not authorized by 34-52.]

And yet, astoundingly, the Schmidt Report concludes that such techniques are "authorized" by the Field Manual and, thus, under Geneva's protections for POWs. This document blurs the lines with respect to the military's ordinary interrogation tactics, transforming a number of those into tactics that would now plainly violate the Geneva Conventions. The implications of this are predictable and ominous: In a future conflict, even if we decide to adhere to Geneva and to treat the enemy as POWs, interrogators will likely think that some or many of these new interpretations of Field Manual 34-52 techniques are permissible. Indeed, the message of this Report appears to be the following: (i) Manual 34-52 describes treatment that may be used on POWs, consistent with Geneva; (ii) Manual 34-52 approves of particular techniques denominated "Futility" and "Ego Down"; (iii) Ergo, any technique, no matter how "abusive" and "degrading," that results in the detainee's sense of futility or loss of ego, is permissible, and legal under Geneva.

Such a conclusion is an outrage, an embarrassment. The Washington Post headline today is: "Abu Ghraib Tactics Were First Used at Guantanamo." But that's the least of it. The real headline is: "Abu Ghraib Tactics Are 'Authorized' by Geneva Conventions, Bush Administration Concludes." Indeed, after the Schmidt Report, why don't Lynndie England and Charles Graner have the plausible defense that what they did at Abu Ghraib likewise falls within the parameters of the "authorized" Futility and Ego Down techniques of Field Manual 34-52? [UPDATE: Andrew Sullivan is a must-read on this today: "[W]e now know that almost every one of the Abu Ghraib techniques was practised and innovated at Guantanamo. These were not improvised out of nowhere. They were what the report calls 'the creative application of authorized interrogation techniques,' and the interrogators 'believed they were acting within existing guidance.' . . . The kind of techniques used in Abu Ghraib—sexual humiliation, hooding, use of dogs, tying prisoners up in 'stress positions,' mandatory nudity, humiliating prisoners for their religious faith, even the famous Lynndie England leash—were all developed at Guantanamo Bay under the strictest of supervision. What we were told were just frat-guy, crazy techniques on the night shift had been deployed by the best trained, most tightly controlled, most professional interrogation center we have. The Schmidt report argues that, while some of this was out of bounds, it was only because of some extra creativity, not because the techniques themselves were illicit, or unauthorized by Rumsfeld and Bush."] [FURTHER UPDATE: In his testimony on Wednesday, Schmidt conceded that "[u]nder the Geneva Convention, sexual humiliation would not be appropriate." He did not, however, explain how, in that case, he could have concluded that such sexual humiliation was "authorized" by Field Manual 34-52, which is written to be consistent with Geneva.]

But that's not all! What about the seemingly important question of whether these techniques are lawful, even as to detainees such as those at GTMO who are not (not in the Administration’s view, anyway) protected as POWs?

Quite shockingly, the Schmidt Report asserts (p.4) that the investigation "did not review the legal validity of the various interrogation techniques outlined in the Army Field Manual 34-52, or those approved by the Secretary of Defense." And with that sharp move, the Report is able to skirt right by the inconvenient fact—expressed by Pentagon JAGS in 2002-2003, as well as by Navy General Counsel Alberto Mora—that several of the approved techniques were almost certainly unlawful, in that they violate the Uniform Code of Military Justice. (As I've previously explained, such techniques would also violate Common Article 3 of the Geneva Conventions and, probably, Article 16 of the Convention Against Torture, as well—except that the Administration has concluded that neither of those legal constraints applies to the detainees at GTMO.) [UPDATE: In testimony before the Senate Armed Services Committee on Wednesday, July 13, SOUTHCOM commander Craddock testified that after General Schmidt completed his report, "my staff judge advocate began a thorough legal review of the report." It would be worthwhile for the military to release the results of that legal review, but it has not yet done so.]

Strangely enough, after this assertion that "we didn't look at the law," the Report ultimately concludes that an interrogator's threats against an alleged high-value GTMO detainee did violate the UCMJ. If that is the case, why didn't the Schmidt Report likewise assess whether the other approved abusive techniques at GTMO also violated the UCMJ—for instance, the prohibitions on cruelty and maltreatment (art. 93), and assault (art. 128)—as they almost certainly did? (See pages A-1 and A-2 of the Field Manual.)

Perhaps this attention-grabbing sentence (page 28) reveals the answer: "The SECDEF's subsequent approval of each of the techniques clearly establishes the ultimate legitimacy of that technique and thus additional corrective action is not necessary." Well, then: If Donald Rumsfeld approves a technique, it must have "ultimate legitimacy" and be legal, right?

Two, other quick observations about the Schmidt Report:

1. Secretary Rumsfeld cautiously approved a technique called "Environmental Manipulation" on April 16, 2003, permitting alteration of a detainee's environment "to create moderate discomfort," but only on the condition that the conditions would not "injure the detainee." In November 2002-January 2003—before Rumsfeld expressly approved the technique—interrogators turned up the air conditioning so that al-Qahtani was "exposed to cold," to the point where he was hospitalized because his heartbeat had slowed—something that happened at least twice. Without providing any reason, Schmidt concludes that the allegation of this "environmental manipulation" "should be closed" (p.17), although it was plainly unlawful—and not even approved by the Pentagon at the time.

2. The Executive Summary identifies several further documents that may well be revealing if they are ever disclosed (in addition to the all-important March 14, 2003 memo from John Yoo to Jim Haynes):

-- Memos dated 12/11/04 and 12/24/04, concerning the subject of the "Second Interrogation Plan" for a high-value detainee at GTMO (see page 3);

-- The CDR USSOUTHCOM memo of June 2, 2003, "providing further guidance on the implementation of the 16 Apr 03 SECDEF approved techniques" (page 5);

and, most importantly,

-- The "plan" for the second high-value detainee, "approved by SECDEF on 13 Aug 03," i.e., after Rumsfeld's April 16th memo and Yoo's March 14th memo (page 21). This August 3d memo would almost certainly provide some understanding of what the Pentagon currently considers to be lawful when it comes to the "humane" military interrogation of non-POWs.
Posted 3:35 AM by Marty Lederman [link]