Benjamin Wittes Responds: “Happy to be a government proxy”

In an an arrogant riposte to an earlier posting of mine, Lawfare blogger and member of the Hoover Institute Task Force on National Security and the Law, Benjamin Wittes, proclaimed he is “Happy to be a government proxy.”

Wittes’ tongue may seem somewhat in cheek, but he really means it. “Government proxy” how? In my earlier article criticizing both Wittes and Adweek columnist Alex Koppelman for their poorly resourced and vituperative articles attacking Scott Horton’s investigation of the 2006 deaths of three Guantanamo detainees, published by Harper’s Magazine in January 2010. Department of Defense investigations had labeled all three deaths suicides.

Moreover, when both Koppelman and Wittes were cited in a footnote to a Department of Justice brief (PDF) defending numerous government officials against a lawsuit brought by parents of the dead detainees — Koppelman and Wittes’ stories were cited as examples of “numerous articles addressing serious flaws with the HARPER’S MAGAZINE story”– I noted that the two authors “wittingly or not” had become “government proxies in the matter of the Guantanamo suicides controversy.”

Wittes replied, sarcastically, “Wow, I’m Verklempt.” He continued:

Turns out that DOJ, in a footnote in a brief before the D.C. Circuit, cited this post of mine from some time back – in which I expressed dismay that Scott Horton and Harpers had received a National Magazine award for a feature article devoted to the spurious suggestion that U.S. service personnel had tortured three Guantanamo detainees to death. The passing citation in the brief prompted this howl of rage from a new blogger over at Firedoglake named Jeff Kaye, who had earlier written a defense of the Harpers article….

Happy to be a government proxy on this one. Robert Loeb and Barbara Herwig, who filed the brief, hereby have my blessing to use any Lawfare post their hearts may desire in defending this suit. I’ll live with myself quite happily, thank you.

Wittes, who saved his strongest complaint for a typo of his name in the post, repeats the lie that Horton’s article claimed the three Guantanamo detainees — Salah Ahmed Al-Salami, Mani Shaman Al-Utaybi, and Yasser Talal Al-Zahrani — were “tortured to death” by “U.S. service personnel.” In fact, Horton never makes any such claim in the article. It is true that the Al-Zahrani’s father is quoted in the article as asserting his son was tortured and killed, but that is very different than Horton coming to such a conclusion. Instead, Horton built a case, based upon contradictions in the government’s investigations, eye-witness testimony, independent autopsy, and revelations concerning a CIA (or JSOC?) black site at Guantanamo, that the deaths were “possible homicides.”

By claiming Horton implicated “service personnel” in torture or possible homicide, Wittes means to tar Horton with irresponsible attacks against rank-and-file U.S. servicemen and women who have sacrificed much to serve their country. If suspicion falls on anyone, it is on interrogators or agents for the CIA or JSOC. Since writing the story, Horton has been calling, as have the parents, for an independent investigation.

Wittes’ portrayal of the DoJ citation of his work is strangely spurious as well. He says that the citation in the brief filed with the D.C. Circuit came from a “post of mine some time back.” In fact, the post was dated May 23, 2011, the same day as Koppelman’s Adweek screed. The brief, signed by government attorneys in DoJ’s Civil Appellate Division, Robert Loeb and Barbara Herwig, as well as by Assistant Attorney General Tony West, was filed on July 13, a mere seven weeks after the Koppelman/Wittes articles. Perhaps we should allow for the subjectivity of time sense and grant Wittes his belief that his article had appeared “some time back” in relation to the government brief. My subjective sense of the affair is that it was quite contemporaneous.

I have very little patience for academic apologists for torture like Wittes. I suppose some, including Wittes himself, might take umbrage at such labels, but an apologist is what he is, no matter how even-handed and reasonable — a man who supposedly takes no extreme positions — he presents himself. Take, for instance, his defense of his friend William Haynes’ approval of torture techniques at Guantanamo. In an article for The New Republic last year, Wittes defended Bush administration attorneys like Haynes, Jack Goldsmith, John Yoo and Jay Bybee, castigating “the vilification of government lawyers involved in the war on terror.”

Admittedly, Wittes said, Haynes was a friend of his “about whom I do not pretend to be neutral.” But rather than forgo comment because of his personal connection (Jack Goldsmith, too, is a personal friend and a professional collaborator, having written articles with Wittes; Goldsmith also is one of two other major contributors, with Wittes, to the blog Lawfare), he defends Haynes’s actions, and apologizes for torture.

Wittes in TNR:

Haynes’s long tenure at the Defense Department was a complicated affair. He made mistakes, mistakes I probably would have made too had I been in his shoes. He also behaved very admirably at important junctures.

The memo for which he has been pilloried is also the reason that the military, unlike the CIA, never waterboarded anybody. [Djamel Ameziane might disagree with that assertion.] Haynes recommended approval of certain modestly coercive techniques—the use of which later spun out of control—but he drew the line at several highly-coercive techniques, waterboarding included. Though they might be legal, he wrote, the military was trained in a tradition of restraint and shouldn’t use them. In other words, he behaved exactly the way the Left often criticizes the CIA for not behaving; even in a crisis setting, he refused to let the criminal law define military interrogation policy. Why is that fact not even part of the conversation about him?

And what were the “certain modestly coercive techniques” Haynes approved? In a November 27, 2002 memo from Haynes to then-Secretary of Defense Donald Rumsfeld, Haynes approved all “Category I and II” “counter-resistance techniques” that had been requested by Major General Mike Dunleavy, Commander of Task Force 170, Guantanamo. He also approved one of the “Category III” techniques. But as Wittes notes, he did not approve some others, including a version of waterboarding, and the making of death threats.

The actual techniques, derived from SERE torture training conducted by DoD, were described by Dunleavy’s staff intelligence director, Lieutenant Commander Jerald Phifer, in a memo that accompanied Dunleavy’s request, and which Haynes approved, in large part.

What techniques did Haynes approve? From the Phifer memo, they included all these “Category II” techniques:

(1) The use of stress positions (like standing), for a maximum of four hours.

(2) The use of falsified documents or reports

(3) Use of the isolation facility for up to 30 days. Request must be made to through the OIC [Officer in Charge], Interrogation Section, to the Director, Joint Interrogation Group (JIG). Extensions beyond the initial 30 days must be approved by the Commanding General. For selected detainees, the OIC, Interrogation Section, will approve all contacts with the detainee, to include medical visits of a non-emergent nature.

(4) Interrogating the detainee in an environment other than the standard interrogation booth.

(5) Deprivation of light and auditory stimuli

(6) The detainee may also have a hood placed over his head during transportation and questioning. The hood should not restrict breathing in any way and the detainee should be under direct observation when hooded.

(7) The use of 20 hour interrogations.

(8) Removal of all comfort items (including religious items).

(9) Switching the detainee from hot rations to MREs.

(10) Removal of clothing.

(11) Forced grooming (shaving of facial hair, etc…)

(12) Using detainees individual phobias (such as fear of dogs) to induce stress.

According to Benjamin Wittes, these techniques are “modestly coercive.” I wonder if Wittes himself were to be subjected to these, under conditions of indefinite detention, no less, he might not find himself truly “verklempt,” or something far worse.

Famously, Donald Rumsfeld scribbled on the bottom of the Haynes memo, “However I stand for 8-10 hours a day. Why is standing limited to 4 hours?” In Wittes’ world, I suppose Haynes is to be congratulated for holding stress positions to only four hours maximum at a time.

But then, I suppose for the Wittes, the intrepid scholar, this post of mine is just another “howl of rage from a new blogger over at Firedoglake.” Referencing my notice of Wittes’ peculiar sense of time above, I should note I’ve been writing at Firedoglake since April 2009,  a year longer than “Lawfare” has been in business.

One last thing: Mr. Wittes, you cited favorably at your original post on Horton a May 17 blog post by Cully Stimson, former deputy assistant secretary of defense for detainee affairs at the time of the prisoners’ deaths. In Stimson’s post, which you extensively quoted, Stimson claimed, “According to published reports, previously classified documents released by Wikileaks show that the suicides were indeed suicides, and were deliberate acts by the detainees.” Could you or Mr. Stimson refer us to these “published reports” or “previously classified documents”? In the name of publishing the truth, and furthering your critique of the Horton article, I can’t see why you’d ever refuse.

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