Thursday, April 30, 2009

Released FBI Memo Documents Bush Ordering Torture

For the Soldier who fights for Truth, calls his enemy his brother. -- William Blake
Jason Leopold had an amazing find when perusing old released FBI documents the ACLU posted has posted on their site. There are about 100,000 such memos at the site, and who knows how much else is buried in that cache? The memo he reports on was first posted by the ACLU in December 2004, but the information in it lay buried until just this week.
Senior FBI agents stationed in Iraq in 2004 claimed in an e-mail that President George W. Bush signed an executive order approving the use of military dogs, sleep deprivation and other harsh tactics to intimidate Iraqi detainees.

The FBI e-mail -- dated May 22, 2004 -- followed disclosures about abuse of Iraqi detainees at Abu Ghraib prison and sought guidance on whether FBI agents in Iraq were obligated to report the U.S. military’s harsh interrogation of inmates when that treatment violated FBI standards but fit within the guidelines of a presidential executive order.

According to the e-mail, Bush’s executive order authorized interrogators to use military dogs, “stress positions,” sleep “management,” loud music and “sensory deprivation through the use of hoods, etc.” to extract information from detainees in Iraq, which was considered a violation of the Geneva Conventions. Bush has never before been directly linked to authorizing specific interrogation techniques at Guantanamo or Abu Ghraib. Bush has admitted, however, that he personally signed off on the waterboarding of three "high-value" prisoners.
Leopold notes that previously the Bush White House (in the person of Alberto Gonzales) stated in 2004, "The president has not directed the use of specific interrogation techniques." But the Senate Armed Services report on Department of Defense treatment of prisoners did note that at the very least it was President Bush himself whose February 7,2002 Executive Memorandum denying al-Qaeda and the Taliban Geneva protections, “opened the door” to torture and abuse of prisoners.

While Jason is writing a news article and can't call Bush and Gonzales liars, I can. The FBI memo is clear evidence of such an executive order. The FBI agents are writing for clarification of what constitutes reportable "abuse," since they have been ordered to report abuse to their superiors.

From the memo:
Our questions relate to the instruction in the EC to report abuse. The EC states that if "an FBI employee knows or suspects non-FBI personnel has abused or is abusing or mistreating a detainee, the FBI employee must report the incident.

This instruction begs the question of what constitutes "abuse." We assume this does not include lawful interrogation techniques authorized by Executive Order. We are aware that prior to a revision in policy last week, an Executive Order signed by President Bush authorized the following interrogation techniques among others sleep "management," use of MWDs (military working dogs), "stress positions" such as half squats, "environmental manipulation" such as the use of loud music, sensory deprivation through the use of hoods, etc. We assume the OGC instruction does not include the reporting of these authorized interrogation techniques, and that the use of these techniques does not constitute "abuse."
In a posting earlier today, Emptywheel noted that the FBI memo above was also quoted in the Department of Justice Inspector General Report on FBI involvement in detainee interrogations. The e-mail made a stir when first reported in December 2004, but the news dropped out of site after the White House issued a denial, and no EO surfaced.

Looking at the DoJ OIG report, I noticed that there was no denial of the claims made regarding coercive interrogation methods in a Bush presidential executive order by either OIG, or any number of officials who received this message. One would think that if the agent was incorrect, someone would have noted it. But in fact, the reference by the FBI agent to Bush's presidential EO is not denied by those who best would have known if it were true. I take this as convergent, though not definitive, evidence of the EO's existence.

Take for instance the final follow-up to the agent's request, by FBI General Counsel, Valerie E. Caproni:
Does it answer his question to say that conduct that is known to be authorized need not be reported?
In other words... go away, don't bother me! Just follow what constituted authority tells you to do.

Shame on the FBI agents who wrote this memo, and shame on the FBI higher-ups who hid behind terms like "lawful" or "authorized" for what are clearly abusive torture techniques. While noting they would still report physical beatings, sexual humiliation "or other conduct clearly constituting abuse," the effect of the Bush EO was to draw indefinable lines between torture and "harsh" abuse. Apparently these agents were unaware that even "cruel, inhumane, and degrading" treatment is outlawed by both the Geneva Convention and the Convention Against Torture, treaties to which the U.S. is signatory, and are law in the United States. Clearly, Bush was unaware or uncaring of such facts, having used his attorneys to cook up bogus legal opinions for the ongoing torture he had already ordered.

The consequences of Bush's torture program are incalculable, from the loss of international trust, to the decay of law, both at home and abroad. Of course, there is the damage to the tortured themselves. PHR wrote a great book, Broken Laws, Broken Lives, on how torture affects its victims. But here, I only want to point out how it affected just one of Bush's torture victims, Abu Zubaydah, who was waterboarded 83 times, and who was never the Al Qaeda mastermind the administration claimed he was. He was tortured so he could cough up a (false) link between Al Qaeda and Saddam Hussein, in order to provide a cause for war for the bellicose Bush administration.

How's Zubaydah doing today? Years now let out of his CIA prison, and held still at Guantanamo, even months after Obama determined the prison should close, let this description by Joseph Margulies in the Los Angeles Times today on Zubaydah's current condition serve as an epitaph for this article, if not for this nation's soul:
Partly as a result of injuries he suffered while he was fighting the communists in Afghanistan, partly as a result of how those injuries were exacerbated by the CIA and partly as a result of his extended isolation, Abu Zubaydah's mental grasp is slipping away.

Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.

But physical pain is a passing thing. The enduring torment is the taunting reminder that darkness encroaches. Already, he cannot picture his mother's face or recall his father's name. Gradually, his past, like his future, eludes him.
If a monarch leader who orders torture cannot be prosecuted for this heinous crime, then what hope is there left for our society?

Wednesday, April 29, 2009

"What We Talk About When We Talk About Torture"

Time to move forward? Torturers "just following orders"? Is Cheney right?

Just ask Tom Tomorrow! (H/T Christy Hardin Smith)

And for less cosmic comedy, reflect on the ironies in the following video:

9th Circuit Rules Against Obama/Bush on State Secrets in Jeppesen Case

The Ninth Circuit Court of Appeals has rejected the Department of Justice arguments of "state secrets" in the suit against Boeing subsidiary Jeppesen Dataplans, Inc., and will let their suit go forward.

Glenn Greenwald reported yesterday: a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security....

Critically, the court went on to note that the Government's interests in maintaining secrecy "is not the only weighty constitutional values at stake."
Astute legal observer, bmaz, over at Emptywheel/FDL, noted a small fly in the ointment, but concluded, "this is a big blow to the government and a win for the rule of law." The fly?
... it appears from a skimming of the decision that they did not dismiss the ability of the government to assert state secrets, rather indicated the time was not ripe for it.
FAS Secrecy News notes a particular aspect of the ruling, which speaks to the importance both Greenwald and bmaz give the case:
In another crucial distinction, the court said that the fact that certain information is "classified" does not necessarily mean that it is "secret" for purposes of the privilege.

"A rule that categorically equated 'classified' matters with 'secret' matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process," the court said.
Greenwald noted other, similar statements in the brief.

While it indeed looks like Binyam Mohamed and the other plaintiffs in the Jeppesen case will get their day in court (referring to damages incurred by them as torture victims in the CIA's secret rendition program, using Boeing subsidiary Jeppesen Dataplan for critical flight planning and logistical support services and aircraft crews), the government has not responded yet to the ruling, leaving open the possibility of further appeals.

Tuesday, April 28, 2009

How APA Made a Pact with DoD & CIA over Torture Interrogations

Also posted at Firedoglake

Author's note, 4/29/09: This post's text contains five editorial corrections, two by strikeout, and three by adding a small amount of additional text (in brackets). The corrections were made after feedback from Dr. Jean Maria Arrigo, relating to mischaracterizations I made regarding a few facts about her actions and background. I regret any discomfort this may have caused Dr. Arrigo.

Dr. Steven Miles, the author of Oath Betrayed - America's Torture Doctors, and a prominent bioethicist at the University of Minnesota, has released the text of an open letter he has written to Dr. Stephen Behnke, Ethics Director of the American Psychological Association (APA), and Dr. Gerald Koocher, 2006 APA President.

Miles asks Behnke and Koocher "to publically urg[e] the APA to conduct a transparent review of how" it came to give a platform to "senior Department of Defense officials who were intimately involved in the support, protection, and implementation of corrupted interrogation standards." Behnke and Koocher are singled out as having "leadership roles in the APA’s relationship to... [torture] interrogations."

Miles is speaking most specifically about the PENS Task Force, established by the American Psychological Association in Spring 2005. PENS stands for Psychological Ethics and National Security. The Task Force was formed by the APA bureaucracy, with the following charge:
[E]xamine whether our current Ethics Code adequately addresses [the ethical dimensions of psychologists’ involvement in national security-related activities], whether the APA provides adequate ethical guidance to psychologists involved in these endeavors, and whether APA should develop policy to address the role of psychologists and psychology in investigations related to national security.
Dr. Miles asks Koocher and Behnke:
What were the formative contacts between DoD and APA that led to the creation of the PENS Task Force?

Who nominated and selected the members of the PENS Task Force?

What were the back channel communications between APA and DoD officials as the PENS Task Force Report was drafted and modified?

The answers to these questions cannot undo the damage but they are needed for those who can work to prevent such recruitment of a health professional organization in the future.
Miles has called for the APA to form its own "Truth Commission," joining the call of Psychologists for Social Responsibility for an investigation into the use of SERE, DoD, and CIA psychologists for Bush's torture program, and ties between APA and the implementation of the controversial interrogations policy.

PENS' Role in the Interrogation Scandal

The APA and the PENS Task Force may be a linchpin between the use of psychologists in the torture program and the higher-ups who were determined to implement such a program. In a way, DoD showed their hand, anxious to stamp down any dissent within the ranks of organized psychology, by stacking the composition of the PENS Task Force with military personnel, with Koocher and Behnke their willing accomplices. In the end, six of the nine members of the PENS TF were related to military activities, a clear majority.

One of military PENS participants was showcased in the Senate Armed Services Committee Report released last week. Lt. Col. Louie "Morgan" Banks, in 2002, the Chief Psychologist for U.S. Special Forces Command, was writing emails warning about the dangers of using SERE techniques in actual interrogation situations (see email from Banks to Major Paul Bruney at Gitmo, 10/2/02), even as only a month before, Banks was a key figure in organizing a training for Guantanamo psychologists and interrogators to learn SERE techniques!

At the time of the PENS meetings, Banks was also the senior SERE psychologist, and, as the internal opposition to official APA interrogations policy, the Coalition for an Ethical Psychology (CFEP) noted, "responsible for the training and oversight of all Army SERE Psychologists." It seemed strange at the time, but further revelations have made the appointment of Banks to the APA task force studying the appropriateness of psychologists participating in DoD interrogations more than simply suspicious.

Banks was not the only suspect member of the task force. In an FAQ on the subject, CFEP discussed another prominent PENS participant:
Scott Shumate, Ph.D. was, at the time of PENS, the chief psychologist for the Counterintelligence Field Activity (CIFA), the intelligence arm of the DoD. From April 2001 until May of 2003 he was the chief operational psychologist for the CIA’s Counter Terrorism Center (CTC), and held that position during the period when [James] Mitchell and [Bruce] Jessen were contracted by the CTC to introduce SERE-based techniques into CIA counterterrorist operations.
The cast of dubious participants only grows, and the suspicion that the fix was in grew even upon the few non-military members of the PENS group. Looking around them, they started to feel uncomfortable, seeing the likes of Banks; Shumate; Col. Larry James (former Chief Psychologist for the Joint Intelligence Group (JIG) at Guantánamo, Jan-May 2003); former SERE psychologist/trainer, Captain Bryce Lefever, who had worked as a consultant to Special Forces in Afghanistan during the 2002 invasion; and Robert A. Fein, Ph.D., who worked as a consultant to Counterintelligence Field Activity (CIFA) on "effective" interrogation methods, and was a subordinate of Shumate's. (See bios for all PENS members here.)

The whole set-up felt wrong to two of the non-military members of the task force. When one of them, Dr. Jean Maria Arrigo, heard that no one would be allowed to take written notes at the PENS meetings, she secretly wrote notes on napkins [was rebuked by Scott Shumate for taking notes on the first day of meetings, she continued taking some notes anyway,] and made efforts to secure the communications from the TF's list-serv, which she deposited later at the Hoover Institution, and gave copies to the Senate Armed Services Committee, and apparently selected human rights groups, activists, and reporters.

What kind of material was discussed behind the scenes by the PENS participants? Well, here's one example, a message from Dr. Koocher to the PENS group:
May 6, 2005: “In many of the circumstances we will discuss when we meet the psychologist’s role may bear on people who are not ‘clients’ in the traditional sense. Example, the psychologist employed by the CIA, Secret Service, FBI, etc., who helps formulate profiles for risk prevention, negotiation strategy, destabilization, etc., or the psychologist asked to assist interrogators in eliciting data or detecting dissimulation with the intent of preventing harm to many other people. In this case the client is the agency, government, and ultimately the people of the nation (at risk). The goal of such psychologists’ work will ultimately be the protection of others (i.e., innocents) by contributing to the incarceration, debilitation, or even death of the potential perpetrator, who will often remain unaware of the psychologists’ involvement.
"Even the death of the potential perpetrator"! "The debilitation"! One should remember, these are the pronouncements of the President of the American Psychological Association to his blue-ribbon (DoD-stacked) panel. They are also the words of someone undergoing a profound moral degeneration. This was amplified when, after Dr. Arrigo went public with her criticisms, Koocher labeled her actions "the sad emotional aftermath of a troubled upbringing complicated by the suicide of a parent who engaged behaviors she now abhors."

Of course, [I cannot know if Dr. Arrigo had a "troubled upbringing."] Dr. Arrigo had no "troubled upbringing." Her father was no criminal, nor was he even dead! I guess when you are caught out, your own actions can go to some fairly hysterical places. [Dr. Arrigo adds that at the time Dr. Koocher made his allegations, she was in "cordial contact" with her father.]

Another PENS participant, Dr. Michael Wessels, Professor of Clinical Population and Family Health at Columbia University, ultimately resigned from PENS Task Force itself, the only member to do so. In a letter to PENS chair Olivia Moorehead-Slaughter, he explained:
Out of ethical concerns, I have decided to step down from the PENS Task Force because continuing work with the Task Force tacitly legitimates the wider silence and inaction of the APA on the crucial issues at hand. At the highest levels, the APA has not made a strong, concerted, comprehensive, public and internal response of the kind warranted by the severe human rights violations at Abu Ghraib and Guantánamo Bay. The PENS Task Force had a very limited mandate and was not structured in a manner that would provide the kind of comprehensive response or representative process needed.
There was plenty more evidence of high-level APA and governmental interest in keeping the lid on the PENS process, such that the conclusion of the PENS Task Force was foreordained: there was nothing unethical about psychologist participation in the interrogations process then underway at various DoD sites. In fact, psychologist participation was about securing safety for the prisoners, and giving expertise to the process.

This must have been good news to the various mucky-mucks who attended the PENS sessions in order to observe. These unofficial attendees included the Director of the APA Practice Directorate, Russ Newman; as well as four members from the APA's Science Policy or Science Directorate, Susan Brandon, Steven Breckler, Heather Kelly, Geoff Mumford, among others. According to Arrigo, it was unusual to have as observers "lobbyists on issues that overlapped with the mission of the Task Force."

Newman's presence raised some eyebrows, as his wife was Dr. Debra Dunivin, an active duty SERE psychologist working with Banks and James at Guantanamo. Conflict of interest anybody?

As Lt. Col. Banks wrote on the PENS Listserv on August 8, 2005, after the report was rushed through and approved:
Last Friday, I spent eight hours with the Army's Surgeon General, LTG Kiley, along with Larry James, Debra Dunivin, and several others. We were trying to establish the doctrinal guidelines and training model for psychologists performing this job. The TF [Task Force] report provided, again, a solid anchor to use in our deliberations.
The Army Surgeon General was involved, too? How far does the cast of characters of this incestuous menagerie extend?

Beyond PENS: The Bigger Picture of APA Subservience to National Security Programs

The appearance of the "observers" from the Science Directorate was notable, as these psychologists were key figures in APA lobbying of Defense Department funds. One of these figures, Susan Brandon, was working at the time of the PENS process for the White House Office of Science & Technology Policy. She has also worked for Mitre Corporation, and was once Senior Scientist at APA, as well as Program Officer for Affect and Biobehavioral Regulation at NIMH.

Brandon also has the dubious distinction of being one of the chief organizers of a CIA/RAND/APA workshop entitled the "Science of Deception: Integration of Practice and Theory", held in Arlington, VA, in July 2003. She shared organizational tasks for this affair with Kirk Hubbard, Chief of the Research & Analysis Branch, Operational Assessment Division of the CIA. One agenda item at this workshop was to discuss new ways to utilize drugs and sensory bombardment techniques to break down interrogatees.

Here's one example of the workshop's "thematic scenarios":
# How do we find out if the informant has knowledge of which s/he is not aware?

# How important are differential power and status between witness and officer?

# What pharmacological agents are known to affect apparent truth-telling behavior?....

# What are sensory overloads on the maintenance of deceptive behaviors? How might we overload the system or overwhelm the senses and see how it affects deceptive behaviors?
Some time back, I wrote to some of the key APA officials involved in this workshop, but they never responded to my queries. That includes an email to the APA ethics director, Stephen Behnke, as well.

Now that we've gotten to the truth drugs, the sensory overwhelm and "overload of [the] system", it feels time to stop, to wash off the ordure, if nothing else.

From the current perspective of recent revelations on the torture scandal, from the OLC memos to the release of the full SASC report, it's clear that there's much more to be revealed. For instance, what role did APA play in the operational planning that resulted in the various torture programs? (For it's also clear now, that there was more than one such program, i.e., the "enhanced interrogation program" outlined by the Bybee memo, and the JTF-GTMO interrogation plan forwarded to the Joint Chiefs of Staff by General James T. Hill, Commander at SOUTHCOM, in late October 2002.)

Will we ever hear more about the double game played by the likes of Banks? Or will we know the real behind-the-scenes story about PENS? What exactly did go on at that CIA/RAND/APA July 2003 meeting, and what psychologists, psychiatrists and others were present, discussing ways to implement torture? Will Susan Brandon be called to the stand? Or Scott Shumate? And then there are the charges by Jane Mayer and others that yet another former APA president, Martin Seligman, was involved in teaching theories of "learned helplessness" to SERE psychologists-cum-torturers, James Mitchell and Bruce Jessen.

We won't probably get to know much of this information unless investigations are begun, and soon, before all the dead bodies are buried, and the political opening for this vital social endeavor is closed for another generation.

Extra addition (5/9/09): Earlier this week the PENS e-mail listserv was posted online as part of an article simultaneously posted at and ProPublica. Researchers and the curious are encouraged to check it out.

Sunday, April 26, 2009

Washington Post Helps JPRA Cover Up Complicity in Torture Program

Originally posted at FireDogLake

A Washington Post article by Peter Finn and Joby Warrick has made a big splash, reporting that a memorandum from Joint Personnel Recovery Agency to DoD General Counsel in July 2002 warned that "torture" would produce "unreliable information."

However, we cannot conclude from this that JPRA was against the use of coercive interrogation. For one thing, as I will show, JPRA was an enthusiastic proponent of spreading SERE techniques into the operational realm. Second, even the caveats about the use of torture are supplemented by recommendations of interrogation techniques that amount at least to cruel, inhumane, and degrading treatment (outlawed by treaty and domestic law, as much as torture), if not torture itself.

One comes away from the Washington Post article with the impression it was the consequence of a planned leak, probably by JPRA or someone close to the Pentagon, seeking to cover up the JPRA's complicity in the torture program. For one thing, the revelations from the memo are not new; they were already revealed in the text of the recently released Senate Armed Service Committee report on detainee abuse. And then, consider the portion of the leaked memo, “Operational Issues Pertaining to the Use of Physical/Psychological Coercion in Interrogation," that the Washington Post did not bother to report.
CONCLUSION: The application of extreme physical and or psychological duress (torture) has some serious operational deficits, most notably, the potential to result in unreliable information. This is not to say that the manipulation of the subject's environment in an effort to dislocate their expectations and induce emotional responses is not effective. On the contrary, systematic manipulation of the subject's environment is likely to result in a subject that can be exploited for intelligence information and other national strategic concerns.
"Exploited" for not just "intelligence information," but "other national strategic concerns"? Hmmm... Perhaps this refers to the attempt to use torture to produce false confessions about supposed links between the perpetrators of 9/11 and Saddam Hussein.

In any case, JPRA, an organization whose supposed purpose is to be "the Department of Defense’s (DoD) executive agent for personnel recovery... responsible for coordinating and advancing joint personnel recovery capabilities," was deeply implicated as a primary actor in the implementation of the torture program. You wouldn't know this by reading the Washington Post article, which quotes former JPRA chief of staff, Daniel Baumgartner as saying "the agency 'sent a lot of cautionary notes' [to DoD] regarding harsh techniques.
"There is a difference between what we do in training and what the administration wanted the information for," he said a telephone interview yesterday. "What the administration decided to do or not to do was up to the guys dealing with offensive prisoner operations. . . . We train our own people for the worst possible outcome . . . and obviously the United States government does not torture its own people."
One could contrast this sanguine picture of a passive government bureaucracy meaning to do well with Lt. Col. Baumgartner's attachment of the JPRA document, Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees (undated), attached to the same memorandum Baumgartner sent to the Office of the Secretary of Defense General Counsel on July 26, 2002, which included the supposed warning memo published by the Washington Post.
In other JPRA materials, techniques designed to achieve these goals [i.e., "establish absolute control, induce dependence to meet needs, elicit compliance, shape cooperation"] include isolation or solitary confinement, induced physical weakness and exhaustion, degradation, conditioning, sensory deprivation, sensory overload, disruption of sleep and biorhythms, and manipulation of diet. Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees. [p. 9, footnote 56]
The Washington Post article failed to note that there were three attachments to the July 26 memo from JPRA to DoD General Counsel. One was the attachment posted by the Washington Post ("Operational Issues"), one was the Physical Pressures document just quoted. The third attachment was a memorandum written by SERE psychologist Jerald Ogrisseg, "Psychological Effects of Resistance Training."

I've written elsewhere on the Ogrisseg memo. In this work, he describes the statistics he gathered that demonstrated that SERE training was almost never harmful to its participants. That is not an accurate conclusion by Ogrisseg, and the published research using experiments on SERE trainees shows dramatic disruption of physiological processes by a majority of recruits undergoing SERE training. A study published in the June 2000 edition of Special Warfare noted:
In some cases, the changes noted among the trainees were greater than the changes noted in patients undergoing heart surgery....

Changes in testosterone levels were similarly remarkable: In some cases, testosterone dropped from normal levels to castration levels within eight hours.
The most salient aspect of the Ogrisseg paper lies in the fact that it ostensibly reported that waterboarding under SERE training conditions caused minimal long-term psychological effects. But the SASC report notes that Ogrisseg's report attributed that fact to "efforts the Air Force SERE program undertook to minimize the risk of temporary psychological effects of resistance training becoming long-term effects.... [mitigating] the risk of turning a "dramatic" experience into a "traumatic" experience.'"

It was Lt. Col. Baumgartner, so favorably quoted by the Washington Post, who forwarded all these memos to DoD, telling DoD's General Counsel:
"While there is not much empirical data on the long term effects of physical pressures used in SERE schools (which fall well short of causing 'grave psychological damage'), the psychological staff at the Air Force SERE school makes some interesting observations [] that suggest training techniques can be very effective in producing compliance while not causing any long term damage." Memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel... July 26, 2002
So much for all the warnings Baumgartner says JPRA made!

JPRA Creates Experimental Torture Lab at Guantanamo

Whatever caveats some at JPRA had about SERE methods, and belying the betrayal by Baumgarter in the Washington Post article, by late summer 2002, JPRA was actively soliciting its services again to DoD. For instance, there was this this September 9, 2003 email from Col. Randy Moulton, Commander of JPRA to Col. Mike Okita and a redacted addressee (possibly "Admiral Bird," whom the text of the email addresses). Note, this was sent approximately two months after the so-called warning by JPRA:
There is a strong synergy between the fundamentals of both missions (resistance training and interrogation). Both rely heavily on environmental conditions, captivity psychology, and situation dominance and control. While I think this probably lies within DHS [Defense Human Intelligence Service, part of DIA] responsibility lines, recent history (to include discussions with DHS, USSOCOM, CIA) shows that no DoD entity has a firm grasp on any comprehensive approach to strategic debriefing/interrogation. Our subject matter experts (and certain Service SERE psychologist) have the most knowledge and depth within DoD on the captivity environment and exploitation. I think that JPRA/JFCOM needs to keep involved for reasons of TTP [Tactics, Techniques, and Procedures]/development and information sharing.
While Moulton said JPRA was not interested in active participation in the interrogations themselves, he apparently saw JPRA's new mission as one of "advice, assistance and observation" to the interrogation program, i.e., JPRA would brain-trust the operation. Apparently, Lieutenant General Robert Wagner at USFJCOM thought JPRA was overstepping their charter, and Moulton emailed him back, noting that formally Wagner was correct. JPRA was aware of the dangers of "crossing the Rubicon into intel collection." Moulton continued:
However there will be a need to be engaged in a symbiotic relationship with whatever entity is identified to manage the debriefing/interrogation program.... There may be a compromise position (my gut choice) whereby we could provide/assist in oversight, training, analysis, research, and TTP/development, while leaving actual debriefing/interrogation to those already assigned the responsibility."
In other words, in many ways and from the very first contact between JPRA and the General Counsel of DoD in December 2001, JPRA tried to position itself as indispensable experts for the torture project being initiated by higher-ups in the Bush Administration. Attempts to paint JPRA as some kind of bureaucratic opponent of the drive towards harsher and harsher interrogation techniques simply does not fit the facts. The appearance of occasional warnings about the effects of torture reflect either a minority opinion within JPRA (a possibility), or a bureaucratic reflex of covering for oneself that is apparent throughout the discussions about implementing the JPRA/SERE program in an operational fashion.

At Guantanamo itself, JPRA/SERE techniques were integral in establishing an experimental regime of harsh interrogation, i.e., torture. JPRA and other Special Operations officers wanted to teach SERE methods to interrogators and the members of the Behavioral Science Consultation Teams (BSCTs), which included psychologists and psychiatrists attached to the intelligence task force.

According to the Levin report, in August 2002, "COL John P. Custer, then-assistant commandant of the U.S. Army Intelligence Center and School at Ft. Huachuca, Arizona" conducted a review of interrogations operations at Guantanamo. Custer called Guantanamo "America's 'Battle Lab'" in the war on terror, and recommended combining FBI and military techniques to extract "information by exploiting the detainee's vulnerabilities." The "Battle Lab" label stuck, though some, like Colonel Britt Mallow, of the Criminal Investigative Task Force, objected.
MG Dunlavey and later MG Miller referred to GTMO as a "Battle Lab" meaning that interrogations and other procedures there were to some degree experimental, and their lessons would benefit DOD in other places. While this was logical in terms of learning lessons, I personally objected to the implied philosophy that interrogators should experiment with untested methods, particularly those in which they were not trained.
Later, Dunlavey denied using the term, and Miller testified he couldn't remember. Even so, within a week of Custer's report, BSCT members and Gitmo interrogators were flying off to Fort Bragg to attend a training in the use of SERE techniques, run by JPRA and Lt. Col. Louie "Morgan" Banks, then Chief Psychologist for U.S. Special Forces Command. SERE psychologist Gary Percival and two other JPRA instructors, Joseph Witsch and Terrence Russell, taught the course. This training included instruction in disruption of sleep cycles and daily schedules, invasion of male prisoners space by female interrogators, placing prisoners in solitary confinement, use of phobias ("fear of spiders, of the dark or whatever"), hooding, hitting, use of military dogs, etc.

Approximately a week after the end of training, in the latter part of September, one of the JPRA instructors, Joseph Witsch, was having second thoughts, which he expressed in a memo to Col. Moulton and Lt. Col. Baumgartner, as well as leadership at Special Operations Command:
I believe the techniques and tactics that we use in training have applicability. What I am wrestling with is the implications of using these tactics as it relates to current legal constraints, the totally different motivations of the detainees, and the lack of direction of senior leadership within the [U.S. Government] on how to uniformly treat detainees. We are now attempting to educate lower level personnel in DoD and OGAs [other governmental agencies] with concepts and principles that are somewhat foreign to them and while it all sounds good they are not in a position nor do they have the depth of knowledge in these matters to effect change and do it in reasonable safety....

The handling of [Designated Unlawful Combatants] is a screwed up mess and everyone is scrambling to unscrew the mess ... If we want a more profound role in this effort we need to sell our capabilities to the top level people in the USG and not spend our time trying to motivate the operators at the lower levels to sway their bosses. This is running the train backwards and that is a slow method to get somewhere. There are a lot of people in the USG intelligence community that still believe in the old paradigm and wonder just what we're doing in their business.
Implementing the Torture Program

Whether or not anyone heard Witsch's concerns, or those of others (Banks says that he, too, protested the use of SERE reverse-engineering, but his protest seems questionable, given his organizational role in the Gitmo training), on September 26, a high-level group of administration visitors arrived at Guantanamo, including Alberto Gonzales, David Addington, DoD General Counsel Jim Haynes, CIA General Counsel John Rizzo, and Assistant Attorney General, Criminal Division, Michael Chertoff. One record of their meetings has been handed down in the form of minutes, including presentation by BSCT personnel, and a discussion of "harsh techniques", sleep deprivation, hiding prisoners from the International Red Cross, videotaping prisoners and possible use of "truth serum." The experiment was well under way.

After the administration officials left, the decision was made to get approval for harsher interrogation methods similar to those taught by SERE.
According to MAJ Burney, the BSCT psychiatrist, "by early October there was increasing pressure to get 'tougher' with detainee interrogations but nobody was quite willing to define what 'tougher' meant.... MAJ Burney added that there was "a lot of pressure to use more coercive techniques" and that if the interrogation policy memo that LTC Phifer had asked him to write did not contain coercive techniques, then it "wasn't going to go very far."
On October 25, 2002, General James T. Hill, Commander at SOUTHCOM, forwarded the request to get "tougher" and use the proposed SERE techniques to the Joint Chiefs of Staff. While he worried about the legality of some of the techniques, particularly death threats, he urged the Chiefs to consider that he wanted "to have as many options as possible at my disposal."

The Joint Chiefs hesitated. They asked for official comment from the different services. The Air Force reported back: "some of these techniques could be construed as 'torture,' as that crime is defined by 18 U.S.C. 2340." The Navy responded more favorably, citing the need for better "counter-resistance techniques," but asked for "more detailed interagency legal and policy review." The Marine Corps balked. Some of the techniques (e.g., sensory deprivation, use of dogs, nudity, exposure to cold, 20 hour interrogations) "arguably violate federal law, and would expose our service members to possible prosecution." The Army also cited "significant legal, policy and practical concerns," noting the techniques probably violated Bush's presidential order regarding "humane treatment" of detainees, and wanted more legal review.

Captain Jane Dalton, the Legal Counsel to the Chairman of the Joint Chiefs of Staff, testified to the SASC that she informed General Richard Myers, Chairman of the Joint Chiefs of Staff, of the legal objections by the services. Myers would later say he didn't remember any objections. Dalton then informed DoD General Counsel William Haynes of the military's objections. He, too, would later testify that he was unaware of any objections, saw no memos to that effect.

Ultimately, General Myers, apparently at the behest of Haynes (who presumably was acting on behalf of Secretary of Defense Donald Rumsfeld) "quashed" Dalton's review. Asked about dismissing JCS Legal Counsel review of the request for use of SERE/JPRA interrogation techniques at Guantanamo, the Chairman of the Joint Chiefs of Staff stonewalled.
GEN Myers said that he had "no specific recollection" of discussing with CAPT Dalton her efforts to conduct an analysis of the October 11, 2002 GTMO request.... He said that while he "did not dispute" asking her to stop working on her analysis and acknowledged that Joint Staff records indicated that she did stop work on her analysis, he had "no recollection or doing so" and did "not recall anyone suggesting" to him that she stop her review.
Meanwhile, JPRA was already planning their next training exercise for Guantanamo interrogators. Guantanamo got a new commander, Major General Geoffrey Miller, and the battle over the use of interrogation methods shifted to the construction of an interrogation plan for Mohammed al Khatani, with the government obsessed with the need to "break the detainee and establish his role in the attacks of Sept[ember] 11,2001." Approval for the plan came from the White House (emphasis in original):
A November 14, 2002 email from the GTMO Staff Judge Advocate LTC Diane Beaver to CITF lawyer stated, "[c]oncerning 63 [Khatani] my understanding is that NSC has weighed in and stated that intel on this guy is utmost matter of national security... We are driving forward with support of SOUTHCOM. Not sure anything else needs to be said."
A great deal more needs to be said, but we will settle with this denouement for the present.

Rumsfeld, upset that action had not been taken on the October GTMO request for harsher techniques thundered, "I need a recommendation." On November 27, 2002, Haynes notified Rumsfeld that he had received the concurrence of Deputy Secretary of Defense Paul Wolfowitz, Undersecretary of Defense for Policy Doug Feith, and Chairman of the Joint Chiefs of Staff (CJCS) General Richard Myers for most of the JPRA/SERE techniques. It's not clear to what degree the Department of Justice's Office of Legal Council's August 1, 2002 (Bybee) memo played a role in the approval process. In any case, on December 2, 2002, Rumsfeld signed off on the GTMO interrogation plan. He couldn't restrain himself from adding one final flourish:
In approving the techniques, the Secretary added a handwritten note at the bottom ofthe memo that questioned one ofthe limitations in the JTF-GTMO request... In reference to "the use of stress positions (like standing) for a maximum of four hours," the Secretary wrote: "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?"
At last, the SERE reverse-engineered interrogation program, a hybrid of old CIA KUBARK interrogation strategies, especially the use of sensory deprivation, isolation, and debility, were joined to a haphazard group of SERE-originated techniques of varying levels of brutality, themselves gathered from a wide variety of historically derived torture techniques, from Nazi Germany, to the Soviet GPU, and the interrogation of American airmen by Chinese and North Koreans during the Korean War.

And behind it all was the Joint Personnel Recovery Agency. What motivated them? Were the primary actors really Special Forces or CIA, operating through JPRA? Or was it simply a case of a military bureaucracy run amuck, and a White House eager to use any tool at its command to justify policies of aggressive war and perpetuity of power? Hopefully, both investigations and criminal prosecutions of those who planned and implemented the torture program at high levels will bring us some answers.

The greatest obstacle to that lies in the fact that the responsibility for the crimes is spread throughout the Pentagon, intelligence agencies, and the Executive Branch, as high as the President and Vice President of the United States, the former Chairman of the Joint Chiefs of Staff, and a myriad of Cabinet officials and top government attorneys. The powers attached to these offices are formidable, and will seek to protect their own. Only exposure and wide protest over a lack of accountability will bring about the change this country needs, and the justice.

Wednesday, April 22, 2009

PHR Responds to Release of Senate Torture Report

Yesterday, the Senate Armed Services Committee released their long-awaited full report, Inquiry into the Treatment of Detainees in U.S. Custody (large PDF file). In coming days I will be exploring its many revelations and mysteries. One thing the report does is validate my own earlier stories about the timeline of Bush administration forays into torture of "war on terror" prisoners beginning prior to the writing of any Office of Legal Counsel memorandum justifying it, with overtures by the Defense Department to the Joint Personnel Recovery Agency as early as December 2001.

The report also amply documents the use of medical personnel, including psychiatrists and psychologists, as "control officers" for the torture sessions. Additionally, it appears OLC cherry-picked the research efforts of military psychologists for the SERE program and used them to justify the use of horrific techniques, such as waterboarding.

Below is a YouTube video released by Physicians for Human Rights, Tortured Logic: How Medical Professionals Rationalized the Bush Administration's Torture Program. Nataniel Raymond, Director of PHR's Campaign Against Torture, responds to the release of the Senate Armed Forces Committee report on detainee abuse.

Sunday, April 19, 2009

Outrageous Taser Attack at Border Checkpoint

A powerful testimony to what happens to a U.S. citizen who dared to assert his right against unreasonable search and seizure against certain police and state agencies.
"So, wake up, America! Why is this happening in the United States of America?"
H/T Ripple

"Ha, Nazi, Schmazi," says Wernher von Braun

Gather ’round while I sing you of Wernher von Braun,
A man whose allegiance
Is ruled by expedience.
Call him a Nazi, he won’t even frown,
“Ha, Nazi, Schmazi,” says Wernher von Braun.

Don’t say that he’s hypocritical,
Say rather that he’s apolitical.
“Once the rockets are up, who cares where they come down?
That’s not my department,” says Wernher von Braun.

Some have harsh words for this man of renown,
But some think our attitude
Should be one of gratitude,
Like the widows and cripples in old London town,
Who owe their large pensions to Wernher von Braun.

You too may be a big hero,
Once you’ve learned to count backwards to zero.
“In German oder English I know how to count down,
Und I’m learning Chinese!” says Wernher von Braun.
Tom Lehrer, 1965 (Link)

White House: No to Prosecutions for "Those Who Devised (Torture) Policy"

This morning on ABC's "This Week with George Stephanopoulos", Obama's chief of staff, Rahm Emanuel, said the White House did not support prosecuting -- not only CIA officers who tortured, believing in "good faith" what they were doing was legal -- but would also not support the prosecution of "those who devised the [interrogations/torture] policy." This is clearest statement yet from the Obama White House of their (non-)intentions, and it's an outrage. -- Here's the link to the video, and H/T to Ateo.

Now we find out how much the liberal blogosphere really cares about prosecutions of torturers from the Bush administration? Because the gauntlet is now thrown down (not by me, by Obama).
A federal anti-torture statute (18 U.S.C. § 2340A), enacted in 1994, provides for the prosecution of a U.S. national or anyone present in the United States who, while outside the U.S., commits or attempts to commit torture. Torture is defined as an "act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." A person found guilty under the act can be incarcerated for up to 20 years or receive the death penalty if the torture results in the victim's death. [H/T Edger]
Whoever, knowing that an offense has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact; one who knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon in order to hinder the felon's apprehension, trial, or punishment. U.S.C. 18 [H/T bobdevo]
More to come....

Saturday, April 18, 2009

Go Viral with This: Prosecute the Bush Torturers!

Hat-tip to buhdydharma

More than Nuremberg: Thousands Prosecuted for War Crimes After World War II

While the example of the Nuremberg Trials is used often these days to describe what prosecutions might look like, few seem to remember that the prosecution of war criminals after World War II was much larger and took place over a longer period of time than most people realize. This is important when one considers the context of President Obama's granting of immunity to lower-level CIA interrogators (if they acted in "good faith" upon "authoritative" legal advice).

What even a cursory examination of historical precedent demonstrates is that after World War II prosecution of war criminals and accessories to war crimes were not limited to the famous Nuremberg 22 high-level Nazis, nor the few hundred or so prosecuted through the Nuremberg tribunals, but thousands of accused throughout Europe.

What follows is a brief lesson in how these prosecutions occurred, who was involved, and where and when they took place. It may surprise you that the United States, for instance, has an Office of Special Investigations (OSI) at the US Department of Justice. Its mission was to hunt down war criminals and bring them to justice. Established only in 1979, the OSI has a sterling record:
As of 2008, OSI has successfully prosecuted 107 Nazi persecutors. OSI has also worked closely with the Department of Homeland Security to stop more than180 former European and Japanese Axis perpetrators and suspected perpetrators of acts of persecution at U.S. ports of entry and bar them from entering the United States.
But looking back to the immediate post-World War II period, I found this at Teachers Guide to the Holocaust:
In addition to the well-known Nuremberg Trials of 1945-46 [of 22 defendents], there were Subsequent Nuremberg Proceedings held between December 1946, and April 1949, which tried 177 persons. Individual countries also prosecuted war criminals in national courts of law. The British held trials of the commandant and staff of the Bergen-Belsen camp, those responsible for forced labor, and the owners and executives of the manufacturer of Zyklon B, among others. The Netherlands, Hungary, Norway, Poland, West Germany, and Romania were some of the other countries that brought war criminals to trial.
Prosecutions continued for decades after World War II. Many are familiar with the trials of Adolph Eichmann and Klaus Barbie. Consider this from Eli Rosenbaum, who in 2000 was Director of the OSI at the US Department of Justice:
Let us look, if you will, just at the past month, February 2000. In one month, my office won two prosecutions. One at the United States Board of Immigration Appeals, the other, two weeks ago, at the United States Supreme Court, involving the case of former Auschwitz SS man Ferdinand Hammer. The Canadian government, just last week, won its citizenship case against Helmut Oberlander, a member of a mobile killing unit. And just last month, the British authorities won the appeal of the Sawoniuk case, a Ukrainian perpetrator, at the High Court in London. And only a few months ago the Croatian government, which frankly had to be dragged kicking and screaming into this prosecution, successfully prosecuted Dinko Sakic, the former commandant of the Jasenovac concentration camp.
Then, there's also the Documentation centers established to bring war criminals to justice (from the Danish Center for Holocaust and Genocide Studies):
After World War II, centres, commissions and offices were established with the purpose of bringing Nazi war criminals to trial. They collect information, investigate crimes, pass on names of Nazis to their respective governments and take action against Nazi criminals in their own countries.

‘Zentrale Stelle Ludwigsburg’ is Germany’s documentation centre, which collects evidence for the prosecution of crimes committed during the nazi regime in the period 1933-1945.

Immediately after World War II, the provisional Polish government established the ‘Central Commission for Investigation of German Crimes in Poland’. The main commission has since then investigated nazi crimes committed in Poland during World War II and these days exist under a different name, the 'Main Commission for the Investigation of Crimes against the Polish Nation'....

The ‘Simon Wiesenthal Center’ in Vienna, founded by the Nazi-hunter Simon Wiesenthal, is perhaps the most famous documentation centre. Since World War II, the centre has tracked down many Nazi war criminals.
And the trials continued:
Poland was relatively quick to convict the camp personnel from Auschwitz – at least those that could be found. Trials were initiated against at least 600 members of the Auschwitz camp personnel. Among these were the two camp commandants, Rudolf Höss and Arthur Liebehenschel, who were sentenced to death in 1947. Rudolf Höss was hanged in Auschwitz in 1941. A total of 21 were executed....

In West Germany the so-called Auschwitz Trials were conducted against the camp guards from the concentration and extermination camp at Auschwitz. The largest of these trials took place in Frankfurt am Main between 1963 and 1965, where 20 were accused. 17 were given jail sentences....

On 3 July 1964 twelve of the personnel in the extermination camp Sobibor stood accused of participating in the murder of Jews in the camp. All twelve were accused of assisting in the killings. The trial itself began in Hagen on 6 September 1965 and ended on 20 December 1966. More than 100 witnesses were called.
Major war crimes trials occurred in over 30 European cities between 1943-1947, from Paris to Riga, from The Hague to Bratislava, Bucharest, and Kharkov. Among those prosecuted were "concentration camp guards and commandants, police officers, members of the mobile killing squads, and doctors who participated in medical experiments."

The U.S. National Holocaust Memorial Museum has this to say:
The overwhelming majority of post-1945 war crimes trials involved lower-level officials and functionaries. In the immediate postwar years, the four Allied powers occupying Germany (and Austria) -- the United States, Great Britain, France, and the Soviet Union -- held trials in their zones of occupation and tried a variety of perpetrators for wartime offenses. Many of the earliest zonal trials, especially in the U.S. zone, involved the murder of Allied military personnel who had been captured by German or Axis troops. In time, however, Allied occupiers expanded their juridical mandate to try concentration camp guards and commandants and others who had committed crimes against Jews and others who suffered persecution in areas the Allies now occupied. Much of our early knowledge of the German concentration camp system comes from the evidence and eyewitness testimonies at these trials....

Allied Control Council Law No. 10 of December 1945 authorized German courts of law to pass sentence on crimes committed during the war years by German citizens against other German nationals or against stateless persons. For this reason, occupation officials left Euthanasia crimes -- where both victims and perpetrators had been predominantly German nationals -- to newly reconstructed German tribunals. These proceedings represented the first German national trials in the early postwar period. Both the German Federal Republic (West Germany) and the German Democratic Republic (East Germany) continued to hold trials against Nazi-era defendants in the decades following their establishment as independent states. To date, the Federal Republic (in its old manifestation as West Germany and in its current status as a united Germany) has held a total of 925 proceedings trying defendants of National Socialist era crimes. Many detractors have criticized German proceedings, particularly those held in the 1960s and 1970s, for doling out acquittals or light sentences to aging defendants or defendants who claimed superior orders.

Many nations which Germany occupied during World War II or who collaborated with the Germans in the persecution of civilian populations, especially Jews, have also held national trials in the years following World War II. Poland, the former Czechoslovakia, the Soviet Union, Hungary, Romania, and France, among others, have tried thousands of defendants -- both Germans and indigenous collaborators, in the decades since 1945. The Soviet Union held its first trial, the Krasnodar Trial, against local collaborators in 1943, long before World War II had ended. Perhaps Poland's most famous postwar national trial was held in 1947 in Krakow. The proceedings tried a number of functionaries of the Auschwitz concentration camp and sentenced Auschwitz camp commandant Rudolf Höss and others to death.
Another source notes the French tried over 2,000 "lesser criminals for crimes against humanity and war crimes" (see footnote 9 at link).

As we can see, the amount of people prosecuted for war crimes is much more than most people (even myself, prior to doing this research) imagined!

As the protest over the immunity granted by Obama to CIA torturers continues -- as to how much immunity it really grants, whether it was smart, whether it was a capitulation to blackmail, or a wily maneuver to get the top leadership of the Bush years -- we should all consider the lessons of history as regards prosecutions for war crimes. This history, so recent it seems, is already largely forgotten or misunderstood as pertains to the prosecutions argument.

This brief essay is an attempt to correct those misconceptions, and restore a sense of continuity with the precedents set by our immediate forebears as regards who should be prosecuted for war crimes. The criminals who are or recently were in the U.S. government should soberly consider the many decades the pursuit of war crimes can persist.

If I were them -- and I say this with a straight face -- I'd turn myself in and throw myself on the mercy of the court.

Barack Obama, 2009 - Robert Jackson, 1945

Note: Judge Robert H. Jackson was Chief United States Prosecutor at the Nuremberg Trials. The following quote is from his opening statement for the Prosecution:
This principle of personal liability is a necessary as well as logical one if international law is to render real help to the maintenance of peace. An international law which operates only on states can be enforced only by war because the most practicable method of coercing a state is warfare. Those familiar with American history know that one of the compelling reasons for adoption of our constitution was that the laws of the Confederation, which operated only on constituent states, were found ineffective to maintain order among them. The only answer to recalcitrance was impotence or war. Only sanctions which reach individuals can peacefully and effectively be enforced. Hence, the principle of the criminality of aggressive war is implemented by the Charter with the principle of personal responsibility. Of course, the idea that a state, any more than a corporation commits crimes, is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity. The Charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defense based on either of these doctrines can be entertained. Modern civilization puts unlimited weapons of destruction in the hands of men. It cannot tolerate so vast an area of legal irresponsibility. Even the German Military Code provides that: "If the execution of a military order in the course of duty violates the criminal law, then the superior officer giving the order will bear the sole responsibility therefor. However, the obeying subordinate will share the punishment of the participant: (1) if he has exceeded the order given to him, or (2) if it was within his knowledge that the order of his superior officer concerned an act by which it was intended to commit a civil or military crime or transgression." (Reichsgesetzblatt, 1926 No. 37, P. 278, Art. 47) Of course, we do not argue that the circumstances under which one commits an act should be disregarded in judging its legal effect. A conscripted private on a firing squad cannot expect to hold an inquest on the validity of the execution. The Charter implies common sense limits to liability just as it places common sense limits upon immunity. But none of these men before you acted in minor parts. Each of them was entrusted with broad discretion and exercised great power. Their responsibility is correspondingly great and may not be shifted to that fictional being, "the State", which cannot be produced for trial, cannot testify, and cannot be sentenced.

The Charter also recognizes a vicarious liability, which responsibility recognized by most modern systems of law, for acts committed by others in carrying out a common plan or conspiracy to which a defendant has become a party. I need not discuss the familiar principles of such liability. Every day in the courts of countries associated in this prosecution, men are convicted for acts that they did not personally commit, but for which they were held responsible because of membership in illegal combinations or plans or conspiracies.
And this from President Obama's statement on the release yesterday of the OLC torture memos:
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.
Do I have to make a comment?

Friday, April 17, 2009

Sick Torture Memos Also Lie: A Closer Look at the Bybee Memo

Also posted at AlterNet

Reading the just released August 1, 2002 memo by John Yoo (reportedly ghosting for Jay Bybee, then Assistant Attorney General of the United States, and now an Appeals Court Judge for the Ninth Circuit), to John Rizzo, then Acting General Counsel for the CIA, on the interrogation of Abu Zubaydah, is a surreal experience. There is so much that is strange and awful in it, it's hard to know where to begin.

But one thing that struck me right off the bat was the similarity of the statistics presented in the early part of the memo with the statement of Dr. Jerald Ogrisseg, a psychologist with Joint Personnel Recovery Agency, United States Joint Forces Command, before the Senate Committee on Armed Services on June 17, 2008.

Let's review some of the relevant text.

Yoo/Bybee write, "This letter memorializes our previous oral advice, given on July 24, 2002, and July 26, 2002, that the proposed conduct would not violate this prohibition." The prohibition referred to is the U.S. torture statute, Section 2340A, Title 18 of the U.S. Code.

In his statement, Ogrisseg states that July 24, 2002 was the date of his memorandum “Psychological Effects of Resistance Training.” Dr. Ogrisseg was then still a psychologist working for the Survival, Evasion, Resistance, and Escape (SERE) at the United States Air Force Survival School at Fairchild Air Force Base, Washington. Only a few days after filing his report with the commander of Joint Personnel Recovery Agency, the parent Pentagon organization for all the military SERE programs, on July 29 he became a civilian SERE psychologist, with a number of various duties.

More from Dr. Ogrisseg:
Mr. Chairman, with regards to my July 2002 communications with then Lt Col Dan Baumgartner, the then Chief of Staff of JPRA, my recollection is that Lt Col Baumgartner called me directly, probably on the same day that I generated my 24 July 2002 memorandum that I referenced earlier. He indicated that he was getting asked “from above” about the psychological effects of resistance training. I had no idea who was asking Lt Col Baumgartner “from above” and did not ask him to clarify who was asking. I recall reminding Lt Col Baumgartner in general terms about program evaluation data I’d presented in May of 2002 at the SERE Psychology Conference. These data, which were collected on Air Force survival students at different points of time during training, indicated that training significantly improves students confidence in their ability to adhere to the Code of Conduct.
Why might Bybee, Rizzo, Yoo or others have been interested in Ogrisseg's study of SERE psychological effects? The initial portions of the Aug. 1, 2002 memo are concerned primarily with demonstrating that the techniques migrating into the interrogation arena from SERE training programs were not harmful, physiologically or psychologically, at least not in a way that would violate the law as construed by the OLC attorneys.

Despite the presence of a "SERE training psychologist" from the very beginning of Zubaydah's interrogation. Captured in March 2002, Zubaydah told the ICRC he was tortured from the time of capture. He was allegedly waterboarded by June 2002. Now, unhappy with their intel, CIA was planning to move into an "increased pressure phase" on Zubaydah. OLC notes in the memo that it is relying on information about Zubaydah and Yoo/Bybee warns Rizzo if the "facts in your possession [are] contrary to the facts outlined here", then their "advice would not necessarily apply."

Were they suspicious about the situation as reported by Rizzo? Emptywheel noticed the reticence. The memo states (emphasis added):
According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods.....
Nowhere else, significantly, does Yoo feel the need to quote so selectively and in such detail about what CIA Acting Counsel John Rizzo had represented to him.

Meanwhile, this is what Dan Coleman--an FBI guy with deep knowledge of al Qaeda--had to say about AZ in Ron Suskind's One Percent Doctrine:
Meanwhile, Dan Coleman and other knowledgeable members of the tribe of al Qaeda hunters at CIA were reading Zubaydah's top secret diary and shaking their heads.

"This guy is insane, certifiable, split personality," Coleman told a top official at FBI after a few days reviewing the Zubaydah haul.
In any case, the OLC felt it had to make the SERE techniques look as innocuous as possible. The techniques to be approved included the "attention grasp", "walling," facial slaps, "facial hold," cramped confinement, sleep deprivation, "wall standing" (really slamming a prisoner against the wall violently), insects placed in a confinement box, waterboarding, and stress positions.

Bybee/Yoo reeled off a series of statistics to Rizzo:
Through your consultation with various individuals responsible for such [SERE] training, you have learned that these techniques have been used as elements of a course of conduct without any reported incident of prolonged mental harm.
The memo mentions that hardly any complaints re SERE training were made to Congress, that one SERE "official" (name redacted) had trained 10,000 students in over three and a half years with only two dropouts, and "rare" requests for psychological counseling. The memo continues:
You have consulted with [redacted] who has ten years of experience with SERE training [about two lines redacted] He stated that, during those ten years, insofar as he is aware none of the individuals who completed the program suffered any adverse mental health effects.....

Additionally, you received a memorandum from the [redacted, about one line] which you supplied to us. [Redacted] has experience with the use of all these procedures in a course of conduct, with the exception of the insect in the confinement box and the waterboard. This memorandum confirms that the use of these procedures has not resulted in any reported instances of prolonged mental harm, and very few instances of immediate and temporary adverse psychological responses during the training. Of the 26,829 students trained from 1992 through 2001 in the Air Force SERE training, 4.3 percent of those students had contact with psychology services. Of those 4.3 percent, only 3.2 percent were pulled from the program for psychological reasons. Thus, out of the students trained overall, only 0.14 percent were pulled from the program for psychological reasons.
Surely one can do amazing things with statistics, and these last statistics seem very similar to those Dr. Ogrisseg had found in his research, presented the same day as the first oral approval by OLC to CIA in the Zubaydah request.

From Dr. Ogrisseg's statement:
Then, I recall Lt Col Baumgartner asking me if I thought training was harmful to students. This question and my responses to it formed the basis of my 24 July 2002 memorandum to Lt Col Baumgartner, which is the best record of the conversation that we had. In general terms, I indicated that a very small percentage of students (4.3%) had adverse psychological reactions to our training, but we (the survival psychology staff) were able to re-motivate almost all of those having adverse reactions (96.8%) to complete training. Thus, less than .2% of the roughly 14,000 students were unable to complete training due to psychological problems which arose during training.
The numbers aren't an exact match -- except that 4.3 percent figure -- but close enough. Perhaps the original figures from his July 24 paper would fit even better, but then it's likely OLC was playing fast and loose with the figures. They are certainly close enough to assume with strong presumption that it was Ogrisseg's July 24 memorandum that was being quoted in this part of the memo.

Too bad they didn't look farther into what Ogrisseg then said he told Lt. Col. Baumgartner (emphasis added):
Finally, as indicated in my 24 July 2002 memorandum, Lt Col Baumgartner asked me if I’d never seen the waterboard used, and what I thought of it. I told him that I had seen it used while observing Navy training the previous year, and that I would never recommend using it in training. He asked me why and if I thought it was physically dangerous. I responded that I didn’t see anyone getting physically injured when I observed it, and as stated in my memorandum, the Navy was applying it to medically screened trainees with medical personnel immediately available to monitor and intervene if necessary. However, that wasn’t the point, as psychologically the waterboard produced capitulation and compliance with instructor demands 100% of the time. During debriefings following training, students who had experienced the waterboard expressed extreme avoidance attitudes such as a likelihood to further comply with any demands made of them if brought near the waterboard again. I told Lt Col Baumgartner that waterboarding was completely inconsistent with the stress inoculation paradigm of training that we used, and was more indicative of a practice that produces learned helplessness – a training result we tried strenuously to avoid. The final area I recall Lt Col Baumgartner asking me about were my thoughts on using the waterboard against the enemy. I asked [sic] responded by asking, “wouldn’t that be illegal?” He replied that some people were asking from above about the utility of using this technique against the enemy for the same reasons I wouldn’t use it in training. I replied that I wouldn’t go down that path because, aside from being illegal, it was a completely different arena that we in the Survival School didn’t know anything about. When we concluded the talk, Lt Col Baumgartner asked if I would write him a memo reflecting what we’d just discussed regarding the psychological effects of training so he could include it with other materials he was sending up. He also asked if I would comment on both the physical and psychological effects of the waterboard. I replied that I would, and drafted the memo.
Investigators or prosecutors might want to look at Dr. Ogrisseg's July 24 memorandum, because it appears to be prime evidence for OLC cherry-picking of results regarding the effects of the interrogation techniques in question. Yoo or Bybee or Rizzo, or all three, took the statistics that made their case, and ignored anything else.

We also know Bybee saw the July SERE memorandum from his own testimony before the Senate Armed Services Committee:
Before drafting the opinions, Mr. Yoo, the Deputy Assistant Attorney General for the OLC, had met with Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, to discuss the subjects he intended to address in the opinions. In testimony before the House Judiciary Committee, Mr. Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the memos were being drafted. When asked whether he had discussed SERE techniques with Judge Gonzales, Mr. Addington, Mr. Yoo, Mr. Rizzo or other senior administration lawyers, DoD General Counsel Jim Haynes testified that he “did discuss SERE techniques with other people in the administration.” NSC Legal Advisor John Bellinger said that “some of the legal analyses of proposed interrogation techniques that were prepared by the Department of Justice... did refer to the psychological effects of resistance training.”

(U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released.
The OLC and CIA also ignored a wealth of other published information about the effects of SERE "stress inoculation," such as the June 2000 article, "Assessment of Humans Experiencing Uncontrollable Stress: The SERE Course," in Special Warfare:

As shown in the charts on page 7, SERE stress caused significant changes in students' hormone levels. Recorded changes in cortisol levels were some of the greatest ever documented in humans. In some cases, the changes noted among the trainees were greater than the changes noted in patients undergoing heart surgery....

Changes in testosterone levels were similarly remarkable: In some cases, testosterone dropped from normal levels to castration levels within eight hours.
Or how about this May 2000 article in Biological Psychiatry, Hormone profiles in humans experiencing military survival training?
Conclusions: The stress of military survival training produced dramatic alterations in cortisol, percent free cortisol, testosterone, and thyroid indices. Different types of stressors had varying effects on the neuroendocrine indices. The degree of neuroendocrine changes observed may have significant implications for subsequent responses to stress.
Looking at more psychological than physiological symptoms, one well-known 2001 study in the August 2001 edition of the American Journal of Psychiatry looked at dissociative symptoms, e.g., depersonalization, derealization, psychic or emotional numbing, general cognitive confusion (emphasis added):
The current study was designed to assess the nature and prevalence of dissociative symptoms in healthy humans experiencing acute, uncontrollable stress during U.S. Army survival training. METHOD: In study 1, 94 subjects completed the Clinician-Administered Dissociative States Scale after exposure to the stress of survival training. In study 2, 59 subjects completed the Brief Trauma Questionnaire before acute stress and the dissociative states scale before and after acute stress. A randomly selected group of subjects in study 2 completed a health problems questionnaire after acute stress. RESULTS: In study 1, 96% of subjects reported dissociative symptoms in response to acute stress. Total scores, as well as individual item scores, on the dissociation scale were significantly lower in Special Forces soldiers compared to general infantry troops. In study 2, 42% of subjects reported dissociative symptoms before stress and 96% reported them after acute stress.
96 percent! Well, these statistics are very different from those that appeared to say that less than 2% of SERE subjects had any significant psychological symptoms. It's all in how you frame it in the research world, and apparently in the legal world as well.

In summary, even an initial cursory look at the August 1, 2002 Bybee memo on the "Interrogation of Al Qaeda Operative" shows that the memos were written in bad faith, were meant to deceive, and utilized a memorandum by Jerald Ogrisseg that explicitly warned against using at least some of the techniques (waterboarding) that were approved by OLC.

I'm confident that other researchers will find much more wrong with the recently released OLC memos. Their extremely poor quality and their misrepresentations of medical and psychological information make them very hard to imagine using as the basis of "good faith" representations for those CIA interrogators for whom Attorney General Holder granted immunity, i.e., those "who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice..."

I suppose a lot rides now on how you define "authoritative legal advice."

PHR: Gov't Memos Confirm Role of Psychologists/MDs in Torture

The following statement was released by Physicians for Human Rights this morning:
OLC Memos Confirm Integral Role of Health Professionals in U.S. Torture

PHR Analysis of CIA Interrogation Tactics Confirms Severe and Long-Lasting Harm of Techniques

Cambridge, MA—The newly released Bush Administration’s Office of Legal Counsel (OLC) memos are detailed confirmation of the intimate involvement of health professionals in designing, supervising and implementing the CIA’s “enhanced” interrogation program. Tactics used by psychologists and supervised by medical personnel, including physicians, clearly constituted torture and a grave breach of medical ethics. The memos specifically reference psychologists from the SERE (Survival, Evasion, Resistance, Escape) training program, medical experts, and consultations “with outside psychologists” and “with a number of mental health experts.”

“The health professionals involved in the CIA program broke the law and shame the bedrock ethical traditions of medicine and psychology,” stated Frank Donaghue, Chief Executive Officer of PHR. “All psychologists and physicians found to be involved in the torture of detainees must lose their license and never be allowed to practice again.”

Physicians for Human Rights (PHR), in collaboration with Human Rights First, published a 2007 study, Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, conclusively showing the illegality of, and long-term mental and physical harm caused by, these tactics.

“Strained legal rationalizations for torture techniques should provide no cover for health professionals who helped design and implement them,” stated John Bradshaw, Washington Director of PHR. “The White House and Congress must work together to ensure public accountability for these crimes and violations of medical ethics.”

Further investigation of the role of health professionals in the subsequent implementation of these illegal techniques, as called for in the memos, must be conducted by an independent commission which includes a specific focus on health professional complicity.

"These techniques rise to the level of war crimes and can cause catastrophic physical and mental suffering, lasting for years after an individual has been subjected to them,” stated Dr. Scott Allen, MD, PHR Medical Advisor and Co-Director of the Brown University Center for Prisoner Health and Human Rights. “The involvement of health professionals in techniques they should have known would result in severe pain and harm is not only an egregious violation of medical ethics, it is malpractice."

PHR has long contended the techniques authorized in these memos were developed directly from the military’s SERE training program. The memos conclusively show that the legal justifications provided for the interrogation techniques were developed after the decision to proceed with the SERE techniques had already been made at a policy level.

“The timeline seen in these memos supports what other investigations have shown,” said Bradshaw. “A decision to use the SERE techniques was made at the White House level and the OLC memos were written after the fact to provide legal cover. Rather than serving as a shield to protect our values, the law was used as a fig leaf for torture.”

Since 2005, PHR has documented the systematic use of psychological torture by the US during its interrogations of detainees at Guantanamo, in Iraq and Afghanistan, and elsewhere in its groundbreaking reports Break Them Down, Leave No Marks, and Broken Laws, Broken Lives. The organization has repeatedly called for an end to the use of the SERE tactics by US personnel, the dismantling of the Behavioral Science Consultation Teams (BSCT) teams, and a full Congressional investigation of the use of psychological torture by the US Government, among other recommendations. Additionally, PHR has worked to mobilize the health professional community, particularly the professional associations, to adopt strong ethical prohibitions against direct participation in interrogations. PHR was a co-recipient of the 1997 Nobel Peace Prize.

Thursday, April 16, 2009

"Good" and "Bad" Faith & the Torture Memos

Astute commenter, Mary, over at Emptywheel/FDL, has a very interesting quick assessment of what is not in these torture memos. And what's not there to rely on opens up a huge gap re possible criminal liability, even by Holder's standards:
Aside and apart from how appalling the memos are, they have a few less emotional issues that emerge after you look at them. [And here they are, linked: August 1, 2002 Bybee/Yoo memo; May 10, 2005 Stephen Bradbury memo #1; May 10, 2005 Stephen Bradbury memo #2; May 30, 2005 Stephen Bradbury memo.]

I’ve mentioned before in connection with other memos released that, despite the assertions that people were “relying” on them in “good faith” that they just simply were not reliance opinions. In large part bc they had no facts (and Bradbury alludes to this too in later day sainthood before he left office and referencing general policy issues v. specific fact settings) and as a result, they just did not meet the standards for reliance.

The above linked memos, by contrast, are the actual “reliance” memos and that brings you to some of the other areas of difficulty.

Mad Dog gets to the first one - because they are more fact recitation dense, the individuals highlighted in the authorization chain and also in the chain of certifying to OLC what they say was going on come to the fore on liability. Brennan, Tenet, and in particular Rizzo, OMS and really revolting physician/psychologists. There you have a lot of issues, including the fact there appear to be some glaring and intentional misrepresenations which may go to invalidating chunks of the opinions EVEN IF you bought into any of it (for example, the mental status information on Zubaydah). You also have the complete lack of due diligence in general by Bybee/Yoo and Bradbury. Their whole fact recitations are premised on “you tell us this” and “you tell us that” and “you tell us that all this is fine and hunky dory” and then gets to the conclusions based on assumptions of veracity of all the underlying info.

Despite a lot of effort to pad out the stats and facts, there’s no fact recitation of contacts with DOJ/FBI persons present during some of the interview or non-CIA input on issues like sleep deprivation etc.

But even if you then put the misrepresentations and lack of due diligence aside you get to one of the major problems.

There’s a lot the opinions don’t discuss and don’t authorize.

What was done with Jamadi - what was done with Qhatani (although non-CIA), what was done with the detainee who froze to death in 2002 - none of those kinds of hypothermia to the point of death or turning blue and beatings to death are authorized by the memos.

Then there are other things that aren’t discussed - like the issue of disappearing someone for years. That’s not something that happens to SERE members and issues of disappearing someone and taking to to a foreign country and isolating them for years etc. (especially when you also have issues like their anxiety for what is happening to their families - etc) Nothing in the memos authorize that, nothing discusses it in a torture context, nothing discusses it in a cumulative context (despite the fact that the disappearances had been going on for years in isolation by the time Bradbury issued his report).

Nothing about dumping someone the way el-Masri was dumped and leaving him to have to try to figure out if he really is crazy as he tries to sell his story - nothing about the divorces and family problems (el-Masri returned to find his wife had divorced him) Nothing, also, about the effect of having family members disappeared on those who remain. It doesn’t have any long term, lasting mental effect for a young child to grow up with a disappeared parent who, when returned, has been a torture victim?

Nothing about threats of rape and harm to family. Nothing about simulated sodomy. Nothing about anal penetrations. Nothing about kidnap by stealth. Nothing about conspiracy to send to places where more intense pressure will be applied (Syria, Morocco, etc.) or about threats to send to such places. Nothing about — a whole long list of things. And very little indeed about how anything they say applies to anyone who is a “mistake” There’s a sideways reference in the cumulative effects memo to what about people who are not “high value” detainees (which would include people who are innocent of being combatants)

There’s a lot more worth attention and discussion, but one thing the release of the memos does is basically take away the “authorized by good faith reliance on OLC opinions” response for many actions, even if you leave the revolting memos untouched. And you put Rizzo in particular right in the track back for specific factual representations to OLC that may very well be incorrect and have been used specifically to elicit an opinion for reliance that is based on false information.
A lot more to think about re accountability and liability for prosecutions. I thank Mary and all the intelligent bloggers and commenters over at FDL, for once again providing the best instant analysis.

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