OK

We've all heard about the FBI E-mail. Executive Orders, etc., but what was the actual content? Well, it's up on the ACLU website, if you take the time to look, but it's in a fuzzy, hard to read pdf. So here's my transcription of the text. Comments on the content follow the transcription:

Since DOSC [censored] and my arrival in Iraq, we have been very careful to instruct our personnel to use only standard interview techniques which we would utilize back home in our regular work.  We have also instructed our personnel not to participate in interrogations by military personnel which might include techniques authorized by Executive Order but beyond the bounds of standard FBI practice.  This instruction has been included in our in-briefs to all three rotations, periodically in staff meetings, and in one-on-one conversations.

Insofar as DOSC [censored] and I are aware, no BOC employee during our three rotations witnessed the abuse at Abu Gharayb that is now the subject of the ongoing investigations, nor any conduct anywhere in the theater that went beyond the parameters set by the applicable Executive Order.  Although we have no reason to believe any of our personnel disobeyed our instructions and participated in interrogations that utilized techniques beyond the bounds of FBI practice but within the parameters of the Executive Order (e g , sleep deprivation, stress positions, loud music, etc). some of our personnel were in the general vicinity of interrogations in which such tactics were being used, and because of their proximity to the sites of these interrogations, heard or saw things which would be indicative of interrogations utilizing the techniques authorized by the Executive Order.  Examples are loud music, interrogators yelling at subjects, prisoners with hoods on their heads, etc.

We emphatically do not equate any of these things our personnel witnessed with the clearly unlawful and sickening abuse at Abu G that has come to light.  The things our personnel witnessed (but did not participate in) were authorized by the President under his Executive Order.  I can safely say that none of the employees during our three rotations witnessed the abuse at Abu G.  The investigation into the abuse began before we arrived in Iraq (January 10) and the offending parties had been removed from their positions in the prison by then.  Nontheless, in light of the OGC's EC, I wish to make clear our personnel have been present at various facilities when interrogation techniques made lawful by the Executive Order, but outside standard FBI practice, were utilized.  While our personnel did not participate in these interrogations, they heard/saw indications that such interrogations were underway.

Our questions relate to the instruction in the EC to report "abuse".  The EC states that if "an FBI employee knows or suspects non-FBI personnel has abused or is abusing or mistreating a detainee, the FBI employee must report the incident     "

This instruction begs the question of what constitutes "abuse " We assume this does not include lawful interrogation techniques authorized by Executive Order.  We are aware that prior to a revision in policy last week, an Executive Order signed by President Bush authorized the following interrogation techniques among others  sleep "management," use of MWDs (military working dogs), "stress positions" such as half squats, "environmental manipulation" such as the use of loud music, sensory deprivation through the use of hoods, etc  We assume the OGC instruction does not include the reporting of these authorized interrogation techniques, and that the use of these techniques does not constitute "abuse "

As stated, there was a revision last week in the military's standard operating procedures based on the Executive Order.  I have been told that all interrogation techniques previously authorized by the Executive Order are stil on the table but that certain techniques can only be used if very high-level authority is granted.  According to a Task Force 6-26 e-mail stream I have seen, the following techniques can no longer be used absent the high-level authorization stress positions, MWDs, sleep management, hoods, stripping (except for health inspection), and environmental manipulation (e g , loud music)

UACB, we will still not report the use of these techniques as "abuse" since we will not be in a position to know whether, or not, the authorization for these tactics was received from the aforementioned high-level officials.

We will consider as abuse any physical beatings, sexual humiliation or touching, and other conduct clearly constituting abuse.  Yet, there may be a problem if OGC does not clearly define "abuse" and if OGC does not draw a clear line between conduct that is clearly abusive and conduct that, while seemingly harsh, is permissible under applicable Executive Orders and other laws.  In other words, we know what's permissible for FBI agents but are less sure what is permissible for military interrogators.

These are issues that must be addressed and resolved, with specific guidance being crafted and communicated clearly to our personnel.  We cannot have our personnel embedded with military units abroad, which regularly use these interrogation techniques without more explicity and specific guidance.

We would appreciate it if CTD worked with OGC regarding these questions, and if guidance could be issued by the earliest possible date.

[censored]
On Scene Commander--Baghdad
[censored]

I removed the headers and footers. So what does this tell us, really? Here are what I believe are the pertinent points:

  • That the writer is clear as to the contents of the Executive Order. It is highly unlikely given how specific he is that he is mistaken as to its contents, as the White House has insisted.
  • That the writer wishes to make it clear that none of his subordinates have taken part in such behaviour.
  • That he is unwilling to characterize the behaviour authorized in the Executive Order as abuse, as he believes the Executive Order, by mandating such techniques, removes such a definition.
  • That without a specific high-level order to use these, such techniques do constitute abuse.
  • That the techniques include
    • sleep deprivation
    • stress positions
    • sensory deprivation
    • environmental manipulation such as constant loud music
    • use of dogs
    • stripping of prisoners
  • That the writer's subordinates had witnessed the use of these techniques.

So do those techniques constitute torture? For a definition of torture, let's go to the United Nations Convention Against Torture. The US isn't a signatory, but it's a good definition:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The convention goes on to explain that no legal authority can authorize such treatment, and that a government is responsible for any area under its jurisdiction.

It's pretty reasonable to take the above techniques as "severe pain or suffering", "physical or mental". Let's call them what they are: torture. Moreover, the writer of the E-mail is very clear that they have been authorized by President George W. Bush. An E-mail from a high level FBI agent, phrased in such a way, is quite incredibly unlikly to be a mistake. Or, in stark terms:

We can be reasonably certain that President George W. Bush authorized the use of interrogation techniques which constitute torture.

Originally posted to Expat Briton on Wed Dec 22, 2004 at 07:12 AM PST.

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