POW Abuse: DoD Documents Do Not Well Support Reported DoJ IG Conclusions

TPMM reports on an unreleased DOJ IG investigation report. This report is due to be released within hours. This comment compares the TPMM summary of that not-yet-released report with a single JAG memo disclosed through an ACLU FOIA.

DoJ IG is making excuses to explain away mandatory Nuremberg precedents
to enforce the laws of war. It appears POW abuse investigations did not
timely occur not because of any lack of guidance, but specific
Presidentially-approved orders thwarting enforcement of the laws of war.

TPMM reports the DOJ IG investigation report discusses tactics at many locations, not just Guantanamo. By contrast, the ACLU FOIA only covers the one incident at Guantanamo, in 2002, and is an "attorney work product" from a Major, presumably a military JAG.

The incident at Guantanamo involves an FBI Special Agents observing an interrogation involving mistreatment, and a subsequent observation of suspected POW abuse. According to the Major, the FBI Special Agent was concerned, and mentioned potential ICRC implications.

The memo mentions a DHS interrogator.

The military JAG reports they reviewed the "joint" regulations on detainee operations, presumably something different than AR 190-8.

The JAG mentioned mandatory language [emphasis added]: "[A]ny act or allegation of inhumane treatment will be investigated," to include a serious incident report. (Source  unclear from ACLU FOIA, possibly AR 190-8).

The ACLU FOIA mentions discussions suggesting the DOJ IG report may require a close reading. Based only on the ACLU FOIA, we disagree with this assessment about what prevented the FBI from acting. The DOJ IG report is said to narrowly focus on the DOJ legalization.

This comment does not adequately discuss the other reviews done at Guantanamo:

the Justice Department's essentially unilateral legalization of torture had prevented the FBI from investigating the abuses its agents witnessed.

The DoD JAG memo does not adequately support this assertion. DoD had input to the decisions. The FBI agent did raise concerns, apparently immediately. In this case, the JAG reports the Army and FBI agent did not make a decision to block any investigation, nor did they rely on any DoJ guidance to prevent the FBI to do anything. It was agreed, rightly or wrongly, according to the JAG, that the decision in this case to not investigate was based on the JAG review of Army regulations and consultations with the SAC.

There is a difference between preventing an investigation and not starting one based on a different view of whether that investigation is or is not mandatory, discretionary,  or a courtesy.

The ACLU FOIA does not, on its own, adequately support the reported DOJ IG assertion. The FOIA does not specifically mention any legal review DoD officials made of DOJ OLC. The DoD summary casts the indicent at Guantanamo. According to the ACLU FOIA, the Department of Defense consulted Army regulations. The decision for the FBI seems to have been one of acquiesence  to a joint DoD-DOJ conclusion based on a review of Army Regulations.190-8. There is little to suggest in this memo the Department of Justice, DOJ OLC, or FBI SAC consulted anything that prohibited the FBI from doing anything.

There is a difference between (a) being prohibited from starting an investigation; (b) not conducting a mandatory investigation; and (c) following illegal orders not to enforce the Geneva conventions or Nuremberg precedents. The issue appears to be one unrelated to a lack of guidance, but the opposite: Specific guidance that an investigation was required, but this requirement was not enforced, as it should have been under the Nuremberg precedents.

The DOJ IG report might be evidence the DOJ IG has failed to enforce the laws of war.

It appears to be a misreading of the record to suggest the FBI agents were narrowly blocked by DOJ guidance or some sort of rigid legal standard within the Department of Justice from starting much less completing an investigation. The report does not appear to adequately address how non-DoJ actors influenced the deliberations on whether to proceed or not proceed with what the JAG quoted as a "mandatory" investigation.

The ACLU FOIA does not adequately discuss what discussions FBI agents had after the DoD JAG discussed these issues with the SAC; or what the FBI agents did or should have done when the discussions concluded the investigation was (rightly or wrong) not mandatory, or presumably "discretionary".

From the memo it's not clear on page 2 whether "SAC" means only the FBI Special Agent in Charge. For the sake of conversations, let's presume the "SAC" refers to the FBI SAC, and not anyone in DoD, DHS, or the JAG office.

SAC Illusory Legal Authority To Trump Nuremberg

According to the JAG, the SAC "expressed his opinion that the conduct in question was unacceptable, but that an investigation was not required." We have no information why a military JAG would listen to a recommendation from an FBI SAC; or why the SAC did not work with the US Attorney to get independent legal advice from outside DOD or the JAG. We no information whether the JAG viewed this SAC "opinion" as one that was on the level of legal advice, advisory; or whther there was a legal relationship and understanding between this FBI SAC and the JAG. It's unclear why the JAG was not discussing these legal issues with the US Attorney; whether that was ever raised; or whether there were to-be-understood operating guidelines related to JAG-US Attorney conversations on POW abuses.

We have no information what guidance, DOJ OLC memo, or exclusive DOJ document the presumed-FBI SAC relied to conclude, despite this "unacceptable" conduct, no investigation was required. The JAG memo does not leave the impression that the FBI SAC relied on a specific guiding DoJ document to conclude an investigation was prohibited, but the opposite: It was (rightly or wrongly) not required.

FBI Observations During Handling, Interrogations

This
shows the DOJ IG may not have looked at all the interrogations where
FBI agents were involved. The report is a summary of observed improper
handling of POWs.

POW "handling" is different than "interrogations".

As raised above, the concern isn't whether the FBI did or didn't participate, but whether they, when observing this conduct, did or did not timely ensure appropriate action. They did not:
'

Page 2, ACLU FOIA: "But that an investigation was not required. Instead retraining and proper close supervision should be implemented to ensure it never happens again."

Parsing the Reported DOJ IG Statement

In light of the ACLU link above, this could be parsed:

"The FBI decided it would not participate in joint interrogations of detainees with other agencies in which techniques not allowed by the FBI were used"

to mean, either:
- The FBI acted only as an observer where interrogations, prohibitied by the FBI, were used by non-FBI personnel; and/or
- The FBI engaged in single agency interrogations; and/or
- In saying "not participate" applied to future interrogations, and is silent on previous interrogations before this decision, but still not investigated as required.

Guidance Smokescreen: Impossible to Be "Confused," and Specifically "Concerned"

The JAG reports FBI concern, while TPMM reports he DOJ IG concludes there was FBI confusion:

Fine's office also concluded that clearer guidance was needed for FBI
agents left wondering what to do when interrogation tactics appeared to
violate what would be allowed in the United States -- as opposed to
under military law or in overseas detention centers, according to the
second law enforcement official.

If true, this does not address how the FBI agents should proceed when (a) they are working with other agencies, and (b) other legal counsel or management (rightly or wrongly) conclude an investigation is not required, when it is; or (b) another agency outside DOJ has the "final" vote on how to proceed; or (d) when the situation may not fall under the US Statute and US Attorney Manual, granting primary jurisdiction to the FBI for war crimes investigations.

The question appears to be not that there were DoJ OLC or DOJ memoranda that were unclear or thwarted anyone from doing anything, but the other simple question: What is the explanation the US Attorneys have for not starting a war crimes investigation, and/or assigning the FBI to lead this activity? TPMM and the pre-report information on the DOJ IG report do not mention the US Attorney role.

Unlikely Visible US Attorney Role To Enforce Nuremberg

We will have to examine the DOJ IG report to see if there is any mention of the US Attorney role, what notifications were or should have been made to the US Attorney. On the surface, without seeing the DoJ IG report, it appears the US Attorney action-inaction is not addressed. We don't have information to answer why the US Attorney was not involved; or what the US Attorney should have done by way of ensuring the FBI were focused on this US Attorney interest area:

When the USAO opens any torture, war
crimes, or genocide matter, the USAO shall promptly notify
the Domestic Security Section (DSS) of the Criminal Division.

Even if there were clear FBI guidelines on what to do, the apparent proposed DOJ IG change does not address how non-DoJ personnel will or will not trump and FBI decision. We believe the DOJ IG report is silent on the US Attorney role and the notification requirements to the Criminal Division. If that is the case, the issue may be not that DOJ has vague guidance for FBI agents, but that despite a war crimes issue, DoJ OLC was blocking the US Attorney from prosecuting. That DOJ OLC memo, if it exists, could be evidence of subsequent war crimes.

Dubious DOJ IG Conclusion

The apparent DOJ IG conclusion -- that something was blocking the FBI from investigating -- does not appear to hold water. Rather, it appears, even if there were war crimes or an investigation, someone knew the US Attorney had no plan to prosecute; or something was getting in the way of the US Attorney from aggressively leading this prosecution. That does not appear related to a vague policy, but a specific policy. Something trumped the mandatory US Attorney actions on Section E. We judge this is the specific, still undisclosed DOJ OLC guidance coordinated with the White House counsel to thwart enforcement of the Nuremberg precedents at the Justice Trial.

The USAM does not expressly delegate war crimes investigations to the FBI. The question is narrowly whether the US Attorney does or does not contemplate a war crimes investigation:

The requirements in this section apply in all investigations in which the USAO contemplates—. charging torture (18 U.S.C. §§ 2340-2340B), a war crime

The US Attorney would never "contemplate" anything if the FBI SAC never consulted the US Attorney; or the FBI SAC knew the declination decision before starting the decision; or the US Attorney and DOJ OLC worked with White House counsel and the President to never start any investigation, much less prosecute any abuses against prisoners. Nuremberg precedent trumps the US Attorney manual.

Presidential Unwillingness To Fully Enforce Geneva

At first blush it's unclear why the US Attorney did not contemplate an investigation or prosecution of these prisoner abuses; why the SAC did not ask for US Attorney input; or whether, as we suspect, the US Attorney and others prospectively told the FBI SACs that there would be no prosecutions or investigations because the President through DOJ OLC memos concluded the prisoners were unlawful combatants and not subject to any protections.

If, as is suspected, the FBI had jurisdiction to investigate war crimes, the FBI cannot explain why despite that legal requirement it viewed the POW mistreatment as discretionary; or why any input from DoD legal counsel would be relevant or considered. There appears to have been no consultation with the US Attorney.

Nuremberg Requires Enforcement, Not Appeals To  Dubious Confusion

It is a red hering for the FBI, US Attorney, DOJ OLC, or the President to argue nobody had clear jurisdiction to enforce the laws of war. Argabuly, that is irrelevant: Nurember establishese the legal requirement. It's the job of the President, Attorney General, and legal counsel to ensure Nuremberg precedents are enforced, not explained away. Argaubing that there was "unclear jurisdiction" doe snot appear to be a compelling defense to policy makers' decision to not enforce Geneva. The leadership had the obligation to clarify their plan to enforce and comply with the laws of war, not retroactively appeal to false confusion.

JCON would or should contain the message traffic related to the US Attorney discussions and actions in re war crimes. See Section E.

It may be true the FBI may not have had clear guidance on mandatory investigations. The pre-discussion of the DOJ IG report is not clear why the JAGs views had any bearing on DoJ decisions or FBI investigations.  The issue doesn't appear to be that there was unclear guidance; but the clear guidance did not adequately make clear that an investigation was required, not merely discretionary, even if the President, DOJ OLC, or US Attorney did not provide leadership or attempted to thwart this investigation.

The JAGs retelling of the SACs conclusion does not suggest, in this case, the guidance was unclear, but the opposite: Clear that the investigation was (rightly or wrongly) not required.

The question on the table, in light of the pending release of the DOJ IG report is whether the above nuances are relevant. It may be true that there were (believed to be) invalid reasons for why an investigation did not occur based on specific guidance.

The question may be, in light of the DoJ IG report, is whether the problem isn't unclear guidance, but failure to ensure the clear guidance compelled a mandatory investigation; or whether the SAC misrepresented the guidance, and failed to work with the US Attorney; or whether someone else was getting in the way of the mandatory prosecution requirements. Even if the FBI agreed with the JAG that this was not required, we have no information why the SAC did or did not get a declination decision from the US Attorney; or why the US Attorney, without any investigation report, declined to prosecute. Something appears to have not been done. On the surface, it appears the SAC was declining to investigate something the mandatory US Attorney contemplation requirement.

Excuse to Explain Away Nuremberg Mandatory Enforcement Requirements

The Justice Trial is precedent for prosecuting judicial officers for failing to enforce the laws of war. We'll have to explore how the DoJ IG focused on Nuremberg, and whether US Attorneys, the FBI, or others did or did not fully meet their GEneva obligations.

It may be true the US Attorney failed to remind the FBI that it had a role to conduct a war crimes investigation regardless the legal conclusions of the JAG or the inferences gleaned from Army Regulations. Even if the USAM does well state the FBI mandatory investigation requirements on war crimes, the Special Agent knew there was a problem; and should have known the Nuremberg precedents in re Geneva: The laws of war must be enforced. It remains to be understood how, despite rising this concern but being told an investigation as not mandatory, what actions the FBI agent subsequent took to enforce the laws of war, remove  himself, or forward timely reports of alleged war crimes. The record, for now, well supports the latter: The FBI agent did attempt to communication outside DoJ channels and spoke to DoD officials. It appears the FBI agent wasn't confused, nor uncertain what the DoJ management decision was; the FBI agent appears to have discussed these legal issues with the JAG because the DOJ management refused to enforce the laws of war, as prosecuted at the Justice Trial.

We have no information of what Joint regulation or guidance the JAG reviewed; what relationship this has with ALCID Memorandum 015-02; or how guidance had any bearing on the SAC decision to characterize the FBI role as discretionary. See: [JAG: "I advised that I would check the requirement of the joint regulation on detainee operations"]

We have no information on whether, absent a formal DoD request for the FBI to investigate a war crime, whether DoJ viewed the FBI role, not the investigation itself, as discretionary and non-mandatory. The question may turn on what the US Attorney and Department of Justice should or should not do to start a war crimes investigation, regardless the legal conclusions or guidance from a different department. If this is the case, the issue isn't that there is unclear guidance for the FBI on investigations; but when should the FBI, in the wake of a conclusion of DoD to not do something, take the lead role and trump the legal advice of the Department of Defense, President, DOJ OLC, or the JAG.

Based solely on the ACLU FOIA in re Guantanamo, we reject his assertion:

And the report raps the FBI in some cases for not immediately reporting
the questionable interrogations or leaving the room when they were
under way, the officials said.

The JAG memo suggests the opposite: The FBI agent was concerned, and did immediately report their concerns after they left the room. The question may be that the FBI report was not timely to the SAC or US Attorney.

It appears the FBI is taking the blame for what appears to have been either a Presidential order or a DOJ OLC memorandum that blocked a prosecution of what would be never investigated.  What decision was first, none justified nuder the Nuremberg precedents:

A. The declination decision to not investigate or prosecute;
B. The investigation declination, not not formally review any facts;
C. The decision to deny the POWs of their protected statute; or
D. The decision to link "unlawful combatant" which a  Presidential decision  to not permit any FBI investigation or US Attorney prosecution of those allegations

Based on what little information we have before reading the DOJ IG report and only the ACLU FOIA and TPMM summary, we judge the most likely decision driving the FBI "declinations to investigate" is "D," non-DOJ decisions to not recognize any protections, but implemented abuse, and never view any prisoner treatment  as a problem.

There could be evidence that the President, DOJ OLC, and White House counsel prospectively said there would be no prosecution or investigation of any POW abuses because they were "unlawful combatants." If that is the case, then the question turns to Addington at OVP: What did he know, what was concluded, and how did the DOJ OLC memos of Bybee/Yoo factor into the pre-decision not to prosecute, and then not investigate. The DOJ IG report may never get adequately contrasted with Addington's timeline if he refuses to appear before the House Judiciary.

We'll have to wait for the DOJ IG report to compare the TPMM summary, ACLU documents, and other timelines which appear inconsistent between the FBI and DoD on these alleged POW abuse issues.

Things are not adding up, and the DOJ OLC report appears to be a smokescreen from the President, White House counsel, and DOJ OLC on prospective decisions to not recognize POW rights under Geneva; and a decision to not spend time reviewing any violations of Geneva. This President did not view the prisoners as being protected by Geneva.

Most likely, some of the memos the President signed "recognizing" the POW rights under Geneva were written after the FBI first reported the abuses. Legal counsel appears to know they have a problem:

FBI agents timely raised concerns, but were trumped not by a policy that barred an investigation, but they were not adequately supported, as required in the wake of Nuremberg, with prosecution efforts or US Attorney-DOJ leadership to confront the President, DOJ OLC, or White House counsel conclusions that prisoner abuse was not an issue.