In a comment here at FDL recently, Malcolm Nance of SERE said as much of various DoD types, including contractors, who knew, for instance, that something was going on with Mitchell-Jessen, with Tate, etc., but wink-wink looked the other way.

There may be “patriots” in the intelligence services (in fact, I know there are), but there are others who are more loyal to the service and the game then they are to the country, or believe the needs of the service and of the country are one and the same. That’s why no one protested — except one psychologist — when the American Federation of Intelligence Officers published a racist essay calling for the killing of 100,000 Muslim “zealots” a few years ago, describing them as not having brains like other people. See my article on this recently.

I can’t imagine that rank and file intelligence professionals could have been safely recruited into such a conspiracy. I like to hope that they would have moral qualms. But even if they didn’t, as a group, they would not be gullible enough to think that it would work or that it could be kept secret. They would be all too aware of the potential legal consequences.

Instead, the known actors that we see in CIA and DOD fall into two groups: politically appointed and/or politically ambitious managers and ne’er-do-wells/cowboys like Foggo whose unprofessionalism made them attractive to the new management just as it alienated them from their colleagues. Of these, the former are the ones chiefly to blame.

One of my biggest disappointments with Obama has been this readiness to keep on and hold over those who either hurt the US or allowed her to be hurt on their watches. The org charts of the Pentagon, DOD, CIA, FBI, and the individual services should have been decapitated when the Democrats came in. The mere fact that someone rose to command in the Bush years should on its own merit immediate retirement. Anyone who was made to retire under Bush should likewise have been reinstated.

Instead, Obama has identified himself entirely with the political operatives and bureaucrats that accomodated Bush’s power grab. He has protected them. He has advanced them. And in the few cases where he replaces one, he selects another of the same stripe, Panetta being a case in point.

Politically driven amateurism has not been a problem in intelligence gathering alone. We see the same thing in war fighting, finance and monetary policy, diplomacy, and healthcare. Our new Democratic regime sees continuity as the real virtue, not change. The same inept, ignorant, vain and over-confident people who managed us into disaster are kept on and credited with fixing the mess, while people who might actually know a thing or two are marginalized or derided for lack of political realism.

So I suspect that, if we have a hope, we have to believe that our core institutions and the bulk of our career civil servants–even CIA agents–are still patriots that can be relied upon to assist with the necessary purges when and if we ever have the courage to start them.

The Spanish may have to do so using evidence already in the public domain. Scott Horton reported: (http://www.huffingtonpost.com/2009/09/11/spanish-investigators-pus_n_283955.html)

“The Spanish investigators are now hoping for detailed responses to the questions they sent the U.S. Justice Department in the form of “letters rogatory” — the customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement. The questions focus on the treatment of the Spanish subjects held at Guantanamo and the specific authority and approval for that treatment. They also probe in more detail into the role played by Gonzales, Bybee and Yoo in the process, reflecting a view that the U.S. Justice Department was itself the locus of much of the criminal conduct connected to introduction of a system of torture and cruel treatment of Spanish subjects, in violation of the Spanish criminal code using its universal jurisdiction arm.”

Why did the Spanish send letters rogatory? These are a centuries-old method by which a court in one country can get evidence from a court in another. They operate under the principle of comity. Among other drawbacks, there is no obligation on the requested country to provide the evidence sought.

The U.S. in fact has a perfectly good bilateral treaty of mutual legal assistance in criminal matters with Spain. It was signed 11/20/90 and entered into force June 30, 1993: Senate Treaty Document 102-21.

Compliance with a request for evidence pursuant to a treaty of mutual legal assistance is a matter of legal obligation.

Holder may blow off the Spanish in any event. But, by blowing off letters rogatory, he would commit no legal breach.

Why didn’t the Spanish use the treaty? It’s almost as if they were pulling their punches.

Assuming nonetheless that the Spanish proceed to indict, they can make the lives of the defendants less pleasant than otherwise. I am assuming that the Spanish would ask the U.S. to extradite them, and that the U.S. would refuse.

Yet Spain undoubtedly has applicable treaties of extradition with most countries to which the Torture Six are likely to travel.

As long as the Spanish arrest warrants remained valid — and I don’t know how long that might be — the defendants would risk provisional arrest with a view toward extradition to Spain, and subsequent extradition there, each and every time they set foot in a country that has an applicable extradition treaty with Spain.

The Spanish can also proceed with prosecution and convict a defendant in absentia. Same analysis as to extradition, both from the U.S. (most likely no) and from other countries (might depend on the country.)

The Torture Six belong behind bars, of course, But even a country as large as the U.S. can start to seem restrictive if you know that you dare not leave.

The whole thing–particularly the inclusion of a number of DOD documents in a CIA-related Vaughn Index completed under Steven Bradbury–suggests that DOD was not only reverse engineering its torture for CIA, but CIA was returning the favor by providing advice to DOD as it developed its own torture regime.

The more we learn about the CIA role, the more central it becomes. I will take your supposition, with which I totally agree, even a step farther. While I’m not willing to go this far, yet, myself, I’m beginning to doubt that the reverse-engineering of the SERE techniques actually originated from DoD/JPRA.

It’s my “inspired” guess that they originated from CIA, or a CIA/DIA project. Partly I’m drawing off the fact that SERE techniques (actually, Air Force Survival School, as SERE as an entity was not called that at the time) were utilized by CIA in the late 50s in constructing their DDD paradigm for their interrogation program, which we finally saw in the KUBARK manual. I’ve documented this in an article: Top U.S. Behavioral Scientists Studied Survival Schools to Create Torture Program Over 50 Years Ago.

If this hypothesis is the case, then the reverse engineering took place within CIA’s Science and Technology Directorate, specifically OTS (just like the first torture program did). Planting the “reverse-engineering” in a small-fry SERE psychologist (or two) was part of the cover story, in this scenario.