Yep, but there is a big difference between the CIA blacksite confinements (which are without any basis under any kind of law and so they implicate the 5th) and military confinements of combatants, which is pretty solidly based under the laws of war. So once you have a situation where confinement is legal and is also based on completed acts of culpability, I think you could argue that military confinement of combatants is more like post-trial confinement of criminals. I wouldn’t, bc I think you still have the bigger issues of govt purpose of punishment v. securing the battlefield, which are pretty different purposes, and then you have the whole fallacy of GITMO as a destination for combatants at all, v. as a destination for human trafficking victims.

But I thought I’d at least toss out the possibility.

@6 & @9 – he’s saying that we opted in on being against torture, but we opted out of being against “cruel, inhumane and degrading” bc we were going to rely upon the 8th’s prohibition on “cruel and unusual” and there he is saying that, we can’t be “cruel” to convicted terrorists (but he’s leaving open the Scaliac “no prohibition against pre-judgment torture – Burgeco will like that”) but we can be “inhuman and degrading” except, of course, he’s pretty much ignoring that the CIC for those soldiers had publically announced that all detainees were going to be treated humanely. Still, he’s got degrading. But the other impact of the 8th is that it allows him to focus on extraterritorial issues – bc that was the real heart and soul of all the decisions and actions and the reason GITMO was established – - they were contending that the Constitutional safeguards of the 5th and 8th amendments do not apply to how the American govt acts outside of America. IOW, they say that the govt that exists by enumerated powers and which is prohibited by the consitution from engaging in depravity at home is nonetheless authorized to be depraved out of sight. Kind of like the “spring break” theory of law.

Seriously, twas a very good piece and fits right into this post.

…Secondly, it struck me when transcribing these minutes the degree to which John Fredman, the CIA legal counsel and rep to this meeting, dominated the discussion. All the participants seem to bow to his authority, especially on legal issues, with Lt. Col. Beaver chiming in as well. While the BSCT members — who are the medical professionals present — appear to criticize “fear-based” interrogations techniques at the beginning of the meeting, in favor of rapport-building, as well as abusive environmental “approaches,” as the discussion veers more and more to propositions regarding blatant torture, like the “wet towel” (waterboarding) technique, nary a protest is heard from these individuals, who have by their actions disavowed the ethics of their medical and/or psychological professions…

(My Bold)

That is the very same sense that I came away with. The CIA’s Fredman being the Alpha dog.

…(Note: Dave Becker does not appear to be a CIA person based on his comments.)…

As a side note, I googled around a bit and managed to find out that Dave Becker’s responsibilities were thus:

…Dave Becker, representing the Defense Intelligence Agency…

I’m guessing he that good ol’ Dave was part of the DIA’s HUMINT group. Those are the folks who had a primary lead role in detainee interrogations for the DOD.

As is the case in most organizations, the head honcho isn’t paid to “do stuff”, but to “think, lead, and decide stuff”.

In this case, I’m guessing he gave his staff marching orders bounded by parameters concocted with Addington, Rizzo and Haynes for the “gloves off” approach to “interrogation”.

The CIA also did “interrogations” at Gitmo (and none of it is documented as far as I can see in the unclassified portions of the SASC report which really only focuses on the DOD), so their presence can generally be “explained” at the “interrogator” level.

But the presence of the “chief counsel to the CIA’s Counterterrorism Center”?

What is this lawyer doing there? And what was CIA “acting” General Counsel doing there the week before (from page 9 of the 312 PDF):

…On October 2, 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 GTMO, attended a meeting of GTMO staff, and discussed a memo proposing the use of aggressive interrogation techniques. That memo had been drafted by a psychologist and psychiatrist from GTMO who, a couple of weeks earlier, had attended that training, given at Fort Bragg by instructors from the SERE school…

Again, it really strikes me as curious why the CIA, and CIA lawyers in particular, were present and apparently taking a leadership role in “teaching” their DOD counterparts the “rules of the game”.

And yes, I’m betting Addington, Rizzo and Fredman were as close as peas in a pod.