Armed Conflict Intelligence

A Response to Marcy Wheeler on Jonathan Fredman

Benjamin Wittes
Tuesday, April 2, 2013, 12:35 AM

It took only a few minutes from the time I posted my defense of CIA lawyer Jonathan Fredman last night for Marcy Wheeler (aka emptywheel) to begin tweeting bile against both Fredman and me. She used words like "criminal" and "he thought murder was no big deal" to refer to Fredman. And she bombastically promised that she would deliver a post with Fredman's "greatest hits"—a series of quotes that were all consistent with the one I claimed was almost certainly a fiction.

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It took only a few minutes from the time I posted my defense of CIA lawyer Jonathan Fredman last night for Marcy Wheeler (aka emptywheel) to begin tweeting bile against both Fredman and me. She used words like "criminal" and "he thought murder was no big deal" to refer to Fredman. And she bombastically promised that she would deliver a post with Fredman's "greatest hits"—a series of quotes that were all consistent with the one I claimed was almost certainly a fiction. Well, now Marcy has taken her shot. Count me, for one, altogether unimpressed. I'm publishing this post not because I think this issue is interesting. I don't. I have no interest in spending my time debating interrogation history that is more than a decade old. I'm writing this post because I don't want anyone who reads my earlier post and Marcy's response to it to feel justified by my lack of response in continuing to use the quotation attributed to Fredman to which I objected. I'm not going to continue debating this issue; life is short. For the record, however, here is my response to Marcy's post. Marcy starts by denying that Fredman, in fact, even denied the quotes attributed to him by the "minutes" of the meeting he attended at Guantanamo in October 2002. "Now, in point of fact, Fredman’s memo does not deny saying 'if the detainee dies, you’re doing it wrong,'" she writes. "Funny, isn’t it? That a lawyer would write a 6-page memo purportedly denying he said something really outrageous, but never get around to actually denying the statement in question, even while specifically denying another one?" Her claim is bizarre. Fredman's memo was sent to the Senate Armed Services Committee in response to a hearing that took place on June 17, 2008. During his opening statement at that hearing, Senator Carl Levin—the chairman of the committee—declared the following:

On October 2nd, 2002, a week after John Rizzo, the acting CIA general counsel, visited GTMO, a second senior CIA lawyer, Jonathan Fredman, who was chief counsel to the CIA's Counterterrorism Center, went to Guantanamo, attended a meeting of GTMO staff, and discussed a memo proposing the use of aggressive interrogation techniques. . . . . And Mr. Fredman presented the following disturbing perspective [on] our legal obligations under our anti-torture laws, saying, quote, "It is basically subject to perception. If the detainee dies, you're doing it wrong." "If the detainee dies, you're doing it wrong." How on earth did we get to the point where a senior U.S. Government lawyer would say that whether or not an interrogation technique is torture is, quote, "subject to perception," and that, if, quote, "the detainee dies, you're doing it wrong"?

Yes, Levin and other senators also quoted a few other alleged Fredman comments from the minutes. But this was the quotation he dwelled upon. It was picked up endlessly in the press. And it was in response to this quotation that Fredman wrote his memo, which some months later, the ODNI sent up to the committee. In that memo, Fredman described the comments he provided at the Guantanamo meeting. And he described them in specific response to these alleged quotations. Far from saying that torture is "subject to perception," as he described his remarks, he "emphasized that all interrogation practices and legal guidance must not be based on anyone's subjective perception; rather, they must be based upon definitive and binding legal analysis from the Department of Justice." And he then went on to flatly deny the statements attributed to him: "I did not say the obscene things that were falsely attributed to me at the Senate hearing. . . . The so-called minutes misstate the substance, content, and meaning of my remarks." His denial could hardly be clearer. Marcy then goes on to what she clearly imagines to be a devastating account of Fredman's involvement in the CIA's interrogation program—one that somehow proves that Fredman must have said it because he did so many things that are consistent with believing the sentiment he allegedly expressed. Before I respond to some of the specific issues she raises, a word on a big theme: Fredman was the chief counsel to the CTC at a time when the interrogation and detention program was a big part of what the CTC was up to. He was deeply involved in the program. There is no dispute about that, and for those who regard the program itself as a criminal enterprise and nothing more, as Marcy does, that's perhaps the end of the story. But Jonathan's name has not been dragged through the public mud because he was a lawyer at the agency who happened to be serving at CTC when the agency started capturing and brutally interrogating senior Al Qaeda figures. His name became public because a particular senator chose to name him in a Senate hearing and in a high-profile committee report in connection with a particular comment allegedly made at a particular meeting. This is why Fredman's name keeps showing up in books and articles. And if the quotation happens to be erroneous, it will not do to defend its repetition by pointing out the undoubted fact that Fredman gave legal advice to—and sought to protect—operatives engaged in highly-coercive interrogation practices. That was, after all, his job. But Marcy does identify several reasons she believes Fredman's account in his memo to be false—and thus, presumably, the infamous quotation to be valid. Responding to her in detail is difficult, because her account is so weedy; she accuses me of being a bad reader for not picking up the gems she has mined from the record. The trouble is that they are not gems. Rather, she has gotten mired down in arcana in the way conspiracy theorists often do. And she has built an elaborate structure out of these arcana. Don't breathe too hard around it, though. It might fall over. For example, Marcy makes a big deal of Fredman's supposed failure to rely on the August 1 OLC torture memo and his reliance instead on a fax sent some weeks earlier by John Yoo for a key reading of the torture statute:

when Fredman wrote the Abu Zubaydah torture team, translating DOJ’s guidance, he did not rely on the authoritative memos approved by Jay Bybee. Instead, he relied on a fax John Yoo wrote, purportedly without the involvement or awareness of Bybee, several weeks earlier. That’s important, because the earlier fax used a different standard for what constituted torture than the authoritative August 1 memo. It held that,
[T]o establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose, of causing prolonged mental harm in order for the use of any predicate acts to constitute torture
The authoritative memo—the one Fredman chose not to rely on—admitted the possibility that causing severe mental pain or suffering might amount to torture regardless of intent.

Sounds bad, doesn't it? Fredman relies on an informal fax instead of an OLC opinion because the fax is more permissive, while the memo admits that the law might be more restrictive. The problem is that the formal memo "admitted the possibility" only to reject it. Here's the relevant passage—which Marcy actually quotes in another post:

It could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a victim with imminent death, he would have had sufficient mens rea for a conviction. According to this view, it would be further necessary for a conviction to show only that the victim factually suffered mental harm, rather than that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute (emphasis added).

In other words, Marcy has wowed herself with the difference between a fax that says "The law means X" and a memo that says "The law means X. It could be argued that the law means Y, but we think that's wrong." I'm sorry, but I'm under-wowed. And more to the point, I can't imagine why this question bears at all on whether Fredman did or did not say a particular thing at Guantanamo Bay. Having denied that Fredman denied what he quite obviously denied, and having then accused him of nefariously relying on a fax instead of an OLC opinion that said the same thing, Marcy then indulges a series of presumptions and assumptions in order to show that Fredman prevented the prosecution of CIA personnel in the Salt Pit case—a very serious incident in which a detainee died after a brutal interrogation:

In spite of all that, though, CTC (again, presumably Fredman’s office) was the office that got to determine whether or not anyone should be charged for killing Rahman. Ultimately, they held that,
If [Matthew] Zirbel, as manager of the Saltpit site, did not intend for Rahman to suffer severe pain from low temperatures in his cell, he would lack specific intent under the anti-torture statute.
That is, Fredman’s office (almost certainly he himself; update, this assumes, perhaps incorrectly, CTC wrote its declination memo before Fredman left in April 2004) ultimately determined torture depended only on intent (and wrongful death didn’t apply). That’s precisely the language in the fax he presented as DOJ’s authoritative judgement to Zubaydah’s torturers. And, ultimately, it is precisely the kind of subjective determination that Fredman’s 2008 memo disavows.

Leave aside that the chief counsel of the CTC doesn't decide who gets prosecuted. The Justice Department does that. Fredman stands accused—we're almost certain it was him, assuming he was still at CTC, that is, and presuming that his office wrote the memo in question—of having applied OLC's reading of the torture law to the facts of an actual case. I'm sorry, but this is not even interesting, let alone impressive or damning. And more to the point, it's not remotely probative of what Fredman did or did not say two years earlier at Guantanamo. Here's what would be probative, though: In his memo, Fredman refers to a contemporaneous "written report of that meeting," which he claims he wrote and "asked . . . be provided to the Congress for its own review." Marcy believes his 2008 memo is an after-the-fact self whitewash:

Fredman made the alleged statement in Gitmo in October 2002. Less than two months later, Gul Rahman would die in the CIA’s Salt Pit prison after having been subjected to water dousing—which was not then an approved torture technique—and left to freeze to death. So you can understand why Fredman would want to claim, after the fact, he didn’t have such a cavalier attitude about detainees tortured to death, and also that he warned about the consequences of killing a detainee.

Maybe Empty Wheel and Lawfare should file a joint Freedom of Information Act request for Fredman's trip report—and see how he described the meeting at the time it took place.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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