Could Today's Senate Hearings on Torture Lead to Charges Against the Bush Administration?

Human Rights

The Senate Armed Services Committee [SASC] met this morning, at a hearing titled "Part II of the Committee's inquiry into the treatment of detainees in U.S. custody." The full committee, in open hearing, was to "receive testimony on the authorization of Survival Evasion Resistance and Escape (SERE) techniques for interrogations in Iraq."

In Part I of the SASC SERE-related hearings last June, Lt. Col. Daniel Baumgartner revealed in his prepared statement that Richard Shiffrin, a Deputy General Counsel in the Department of Defense, had approached him in his capacity as Chief of Staff, Joint Personnel Recovery Agency (JPRA), in December 2001. Mr. Shiffrin apparently asked the now-retired Baumgartner for information related to "exploitation" processes, and the effects of captivity upon prisoners.

For those unfamiliar with this controversy, and the cast of characters involved, JPRA is the umbrella organization with the Pentagon for dealing with captured military personnel. The SERE program -- standing for Survival, Evasion, Resistance, Escape -- operates in all branches of the military to train soldiers how to withstand torture and abusive detention. The SERE program has been accused of sending psychologists to train special operations, prison psychologists and psychiatrists, military psychologists and god knows who else how to mistreat and even torture prisoners in order to gain information. Such techniques include "fear up harsh," forced nudity, stress positions, hooding, slapping, sleep deprivation, sexual humiliation, sensory overload, and even waterboarding. This was made clear in a memo that accompanied the SERE Standard Operating Procedures manual at Guantanamo in 2002 (emphasis added):

The premise behind this is that the interrogation tactics used at U.S. military SERE schools are appropriate for use in real-world interrogations. These tactics and techniques are used at SERE school to "break" SERE detainees.The same tactics and techniques can by used to break real detainees during interrogation operations.
Timelines and Smokescreens

The timeline regarding when Shiffrin contacted Baumgartner regarding information that could be used to abusively treat prisoners is crucial. Senator Carl Levin concentrated on a later contact between Shiffrin and JPRA, in late July 2002. The vast majority of the media followed suit. Even stalwart Mark Benjamin at, who has reported so well on much of the torture controversy, followed Levin's emphasis when constructing his own "Timeline to Bush Government Torture."

But Baumgartner says that SASC staff convinced him with documentary proof that he talked to Shiffrin about these issues approximately eight months earlier.

This places DoD interest in possibly reverse-engineering of SERE techniques prior to the January 9 memo by John Yoo providing legal cover to Bush administration assertions that the Geneva Conventions did not apply to detainees held in the new war in Afghanistan. In addition, it predates the January 25 memo by Alberto Gonzales, then a presidential counsel, approving the Yoo argument, and stating that when it came to interrogation of enemy prisoners, the Geneva conventions' "strict limitations on questioning" such prisoners was now obsolete.

Why does this matter? Because if DoD, and by implication Rumsfeld, Cheney, Bush, Rice, or whomever, were seeking guidance on torture before even their poorly-written and largely derided cover-your-ass memos were written, supposedly allowing torture or cruel, inhumane treatment of detainees, then DoD/Rumsfeld/Bush/et al. have no defense any more. They are war criminals in violation of both international and federal law. One would almost have to prosecute them, if the system is to have any credibility at all. Bush would have to be impeached.

But, the general response to these revelations has been ... silence. When I was able to ask Senator Levin why the documents related to Baumgartner's Dec. 2001 discussions with Shiffrin were not made public, he replied (via Firedoglake "liveblog" discussion):
Lt. Col. Baumgartner did so testify at our hearing. However information relating to his discussions with Shiffrin remains classified. When our report is finalized we will press the DoD to declassify this matter.
I say these documents are too important to wait to ask nicely for declassification. They represent potential evidence of a serious felony and war crime.

The Lindh Connection

It seems very possible that the requests from Shiffrin in late 2001 were related to the interrogation of John Walker Lindh, a young American captured with Taliban forces in late November 2001. According to a June 2004 Los Angeles Times report, Lindh was interrogated for days, naked and tied to a stretcher, confined in a large metal container, and subjected to sleep and food deprivation. His wounds were not treated. Military intelligence officers were not freelancing Lindh's interrogation, however, but getting instructions, sometimes hourly, from Secretary of Defense Rumsfeld's office.

According to the LA Times report:
The instructions from Rumsfeld's legal counsel in late 2001, contained in previously undisclosed government documents, are the earliest known evidence that the Bush administration was willing to test the limits of how far it could go legally to extract information from suspected terrorists. …
The documents, read to The Times by two sources critical of how the government handled the Lindh case, show that after an Army intelligence officer began to question Lindh, a Navy admiral told the intelligence officer that "the secretary of Defense's counsel has authorized him to 'take the gloves off' and ask whatever he wanted."
The memos regarding Lindh and the Baumgartner Dec. 2001 documents all remain classified. Jesselyn Radack has said in her book, The Canary in the Coalmine, that she has a copy of the Lindh memo, but nothing has been made public yet.

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