Spencer Ackerman June 25, 2007, 4:59 PM

Apropos of the Washington Post’s exploration of Dick Cheney’s role in the development of interrogations policy, TPMmuckraker has obtained a document from the 2002 trial of John Walker Lindh — the American captured in Mazar-e-Sharif in 2001 fighting for the Taliban — in which Donald Rumsfeld’s general counsel, William J. Haynes II, is said to have advised the commander of U.S. forces in Mazar to “take the gloves off” when interrogating him.

The Los Angeles Times’s Richard Serrano, in June 2004, first described the document, a statement of fact by Lindh prosecutor Paul McNulty (yes, that Paul McNulty) entered into the court record, about the circumstances behind Lindh’s interrogation. But to our knowledge, this is the first time the document has become publicly available.

In the weeks after 9/11, the Bush administration feverishly debated what was legal and appropriate treatment for interrogations of al-Qaeda detainees. The Post reports today that the effort began with allowing the CIA access to interrogation techniques not permitted under the Geneva Conventions, but that Cheney and Rumsfeld wanted military interrogators to have the same expanded authority, a position shared by Haynes. According to the document, months before President Bush issued a February 2002 order calling for detainees to be treated humanely “subject to military necessity,” Haynes instructed military interrogators to “take the gloves off” on an American citizen. From McNulty’s discovery filing:

(An individual identified as U.S. Army #6)’s understanding was that he could not collect (intelligence from Lindh) that could be used in a criminal court. After the first hour of interrogation, he gave the admiral in charge of Mazar-e-Sharif a summary of what the interrogators collected up to that point. The admiral told him that the Secretary of Defense’s counsel had authorized him to “take the gloves off” and ask whatever he wanted.

As Serrano and others reported, Lindh, an American citizen, was “was kept in harsh conditions, stripped and tied to a stretcher, and often held for long periods in a large metal container.” When a Justice Department ethics attorney, Jesselyn Radack, told a counterterrorism prosecutor that Lindh could not be questioned without his lawyer present if DOJ wanted to build a criminal case against him, she was promptly pushed out of her job. The case against Lindh eventually came down to a 20-year sentence based on a plea bargain, prompting many to speculate that Lindh’s harsh treatment — apparently approved by Rumsfeld’s top aides — ultimately scotched the chances for a successful prosecution on bigger charges than his ties to the Taliban.

“We know he was tortured,” says human-rights attorney Scott Horton. “There’s no beating around the bush. This is clarifying that the authority was given at the highest levels for torture to occur. The strong suggestion here is that it’s Haynes doing that, and the strong suspicion is that the authority for him to do so comes from the secretary of defense.” The further suspicion, according to the Post piece, is that the authority for Rumsfeld’s attorney to have authorized the abuse of an American citizen came from Vice President Cheney.

Late Update: Several readers and commenters interpret the “take the gloves off” reference to be about what military interrogators can ask Lindh outside of his Miranda rights, as opposed to being about torture. Here’s one:

Ackerman claims he’s found the first explicit evidence of a senior defense official authorizing torture, pointing to the phrase “take the gloves off.” The full memo, however, makes it clear that the pungent phrase is just a macho way of saying “Forget about his fifth amendment rights - you can Mirandize him on the fly, and expand the questioning to include criminal conduct.” There’s nothing in the memo that refers to the methods of the interrogation, just to its scope. To be sure, it’s a troubling document. A senior government lawyer authorized an untrained field interrogator to violate an American citizen’s Constitutional rights. The result, in all probability, was that the government was forced to offer Lindh a plea deal rather than take his case to trial. And there’s nothing in the memo to preclude the possibility that Lindh was tortured, or that his torture was authorized at the highest levels. Then again, there’s nothing to demonstrate the contrary.

We stand by our original story. But we encourage readers to read the memo and draw their own conclusions.

Detainees, Torture