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?

"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:

...in 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.

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 Salon.com and ProPublica. Researchers and the curious are encouraged to check it out.

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.

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.

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....

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?

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:

Results

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.

"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.

No Amnesty for Torture: Sign the Petition for a Special Prosecutor

Sign the Petition! (H/T Tahoebasha and David Swanson)

On April 16, President Obama said he would not prosecute CIA agents who engaged in torture, because President Bush's lawyers told them it was "legal." President Obama also said Attorney General Eric Holder would use taxpayer dollars to defend torturers against lawsuits by torture victims, and to pay all judgments if they lost.

These decisions are intolerable and unacceptable. Torture is utterly immoral and un-American. The U.S. ratified the United Nations Convention Against Torture, which prohibits torture and requires prosecution of torturers. In 1947, the U.S. prosecuted a Japanese officer for waterboarding. No lawyer can "legalize" what is illegal.

Congress must take the following actions:

1. Demand the appointment of a Special Prosecutor by Attorney General Eric Holder for torture, warrantless wiretapping, and other heinous crimes of the Bush Administration.

2. Prohibit the use of any taxpayer dollars to defend government officials who committed such crimes against lawsuits, or to pay for judgments against them.

3. Restore the full protection of the Fourth Amendment (search and seizure) by repealing the Orwellian-named Protect America Act and U.S.A. Patriot Act.

4. Impeach Judge Jay Bybee, the torture memo author who serves on the Court of Appeals for the Ninth Circuit in California.

As my representative in Congress, I urge you to act immediately.

Sign the Petition! Click here!

Obama & Holder Trash Nuremberg Principles (updated)

A dark, dark day for America.

"They were only following orders." This is the opinion of Eric Holder, as offered in his statement today, describing the decision to release four Bush-era Office of Legal Counsel memos. (The memos have just been posted, and link is here.)

And so the United States government, 64 years after the end of World War II, adopts the infamous slogan of "Befehl ist Befehl" (literally "orders are orders"), otherwise known as the Nuremberg Defense.

Furthermore, Holder pledges the U.S. government will defend any CIA torturers before any tribunal, domestic or international, pay any fines, and make every effort to assert "any available immunities and other defenses".

"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Holder said.

No matter how you try to spin it. No matter how enraged you are at my making a comparison to of U.S. governmental leaders to Nazi war criminals, there is no getting around it. Torturers are absolved by this administration. And the way they did was by using the defense made popular by the Nazis at their war crimes trials, and thoroughly rejected by the United States at that time.

In taking this position formally, the Obama administration has discarded the principles enumerated in the London Charter of the International Military Tribunal at Nuremberg, where Articles 7 and 8 state (emphasis added):

Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

"Mitigation of punishment" sounds a hell of a lot different than what Holder is proposing, which is an all-out defense of those who claim who were "only following orders" (quotes for irony, not Holder's). Perhaps Holder should consider this statement, from the Nuremberg IMT's Trial of the Major War Criminals:

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

Or both Holder and Obama can consider what the U.S., as a High Contracting Party, or signatory, to the Geneva Conventions says about the duty to prosecute war crimes, such as torture (emphasis added):

“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Geneva III POWs, art. 129, Geneva IV Civilians, art. 146; see also 18 USC 2441(c)(1).

Evidence of the crimes committed by CIA officers, agents and/or contractors in perpetuating torture are documented in a number of sources, but none as authoritative as the recent report by the International Committee of the Red Cross on CIA abuse and torture of "high-value detainees" in its custody. The failure to seek prosecutions of war criminals, and now by formal pronouncement, puts high officials of the U.S. government in violation of the Geneva Conventions.

Additionally, and no less outrageously, when Eric Holder or Barack Obama tell you the U.S. government does not condone torture, they do not tell you the truth. The government maintains a classic form of torture within the current Army Field Manual, combining partial sensory deprivation, isolation, sleep deprivation, harsh use of fear and dread, all while instilling a sense of hopelessness in prisoners, which is the same sort of psychological torture perfected by the Stalinists of various countries, and advocated in the CIA's own counter-intelligence interrogation manual from the early 1960s, known as the KUBARK Manual.

Those who are so inclined may wish to watch this concluding section of the famous film, "Judgement at Nuremberg." The quote that follows is from Spencer Tracy's speech. As you watch, consider how far subservience to the military and intelligence agencies has acted as an acid to undermine all that this nation once believed and fought for.

The principle of criminal law in every civilized society as this in common: any person who sways another to commit murder, any person who furnishes the lethal weapon for the purpose of the crime, any person who is an accessory to the crime, is guilty....

Before the people of the world let it now be noted in our decision that this is what we stand for: justice, truth, and the value of a single human being.

UPDATE

The release of the memos by OLC justifying torture are up for anyone to view. The link is at the top of the diary. I've looked at the Aug. 1, 2002 memo from Jay Bybee (and any helpers) to John Rizzo at CIA. It's an extraordinary document, and everyone should take a look.

It authorizes the use of ten abusive interrogation techniques: attention grasp, walling, facial hold, facial slap (insult slap), cramped confinement, wall standing (should be called slamming), stress positions, sleep deprivation, insects placed in a confinement box (!), and the waterboard.

The connections between SERE techniques and use CIA operational use of same is made clear throughout, as is the collaboration with medical professionals and SERE military psychologists. Notably, Bybee claims the OLC decision was vetted with interrogation experts, SERE experts, and "outside psychologists". One wonders who the latter were, and I would like to see the American Psychological Association ask for an immediate investigation of who these "outside psychologists" were.

Throughout the document there are blacked-out sections, mostly those that obviously relate to names and identities. But not entirely, as there are whole paragraphs blocked out in sections that evidently go into more details than DoJ wished to release.

As you read these documents and their bogus claims of authority to torture, imagine you are one of the interrogators getting these orders (place insects in a confinement box! waterboard!). And remember, finally, that the CIA and/or military used torture prior to the authoring of these memos (also see this link), so Holder's "they were only following orders" defense is pure BS from top to bottom.

Also posted at Daily Kos

Obama, Release the Full Bradbury Memos!

The Wall Street Journal reports today that the release of two 2005 memos by then-White House counsel Stephen Bradbury are the subject of much contention in the Obama administration. Essentially, the CIA is lobbying hard to keep large portions of the memos secret. As the WSJ puts it:

A decision to keep secret key parts of the three 2005 memos outlining legal guidance on CIA interrogations would anger some Obama supporters who have pushed him to unveil now-abandoned Bush-era tactics. It would also go against the views of Attorney General Eric Holder and White House Counsel Greg Craig, people familiar with the matter said.

Top CIA officials have spoken out strongly against a full release, saying it would undermine the agency’s credibility with foreign intelligence services and hurt the agency’s work force, people involved in the discussions said. However, Director of National Intelligence Dennis Blair favors releasing the information, current and former senior administration officials said.

Human-rights groups and many in the administration have called the techniques torture.

People familiar with the matter said some senior intelligence advisers to the president raised fears that releasing the two most sensitive memos could cause the Obama administration to be alienated from the CIA’s rank and file, as happened during the Bush administration when Porter Goss, who was unpopular among CIA officers, headed the agency.

Besides waterboarding, the memos purportedly discuss in details other torture techniques, including "a technique in which a prisoner’s head could be struck against a wall as long as the head was being held and the force of the blow was controlled by the interrogator."

Will Obama release the full text of the memos, in the spirit of full disclosure he claimed he would bring to the White House? Or will he cover for the tortures, and bow to implied blackmail from the CIA?

Stephen Soldz put it well in an article at his blog today:

This is a defining moment for the Obama administration. If it makes the wrong decision, in some ways it may ever recover. It will have cast its lot in with the torturers and not with human rights or common decency.

Update:

Now Marc Ambinder is reporting at The Atlantic that his sources say the WSJ article "does not reflect the current state of thinking" at the White House.

Per Ambinder:

Tomorrow, the Department of Justice plans to release largely underacted versions of three Bush-era memorandums that critics suspect contain legal justification for torture and the broad use of executive power during wartime, according to an administration official. The critical question: how much does the administration withhold in the name of national security?....

Various news reports suggest that most of Obama's national security team favors the full release of the memos; Attorney General Eric Holder and White House counsel Greg Craig have lobbied for full release; CIA director Leon Panetta, who last week notified employees that the CIA's secret detention facilities would be shut down, has transmitted the concerns of the agency's field officers, who worry that full disclosure would hamper their efforts to question terrorists. Chief counterterrorism adviser John O. Brennan favors releasing the legal analysis but not the specific techniques used; National Security Adviser James Jones and Director of National Intelligence Dennis Blair count themselves in the transparency camp. Several members of Obama's Office of Legal Counsel urged the release of the memos before they joined the administration....

The ACLU today put pressure on the administration to release "full, unredacted" copies of the Bradbury memos.

The information in these memos is vital to the historical record and to informing the public about what actions were carried out in its name," said Jameel Jaffer the ACLU's top national security lawyer. "The release of the memos is also crucial to holding officials accountable for authorizing torture."

Mr. Ambinder concludes that if Obama doesn't release all the memos, "the left will start to really hammer him on torture proceedings, state secrets privilege and his quiet evolution on the Patriot Act."

We'll see.

Gitmo Attys: Stop CIA Destruction of Evidence at "Black Site" Prisons

The following is the text of a letter released by the ACLU, and authored by Guantanamo military and civilian attorneys to Leon Panetta, Director of the CIA, following Panetta's declaration that the CIA was finally shutting down their "Black Site" secret prisons. I think the text of the letter speaks sufficiently for itself. H/T to geomoo at Docudharma.

DEPARTMENT OF DEFENSE
OFFICE OF THE CHIEF DEFENSE COUNSEL
OFFICE OF MILITARY COMMISSIONS

April 13, 2009

Leon E. Panetta
Director, Central Intelligence Agency
Central Intelligence Agency
Washington, DC 20505

RE: REQUEST TO PRESERVE CIA DETENTION FACILITIES USED TO DETAIN HIGH-VALUE DETAINEES—A.K.A. “BLACK SITES”

Dear Mr. Panetta:

We are counsel for Abd Al-Rahim Hussain Mohammed Al-Nashiri. Mr. Al-Nashiri is currently detained at Guantanamo Bay Naval Base. He has been there since September, 2006. From sometime in late 2002 until 2006 he was incarcerated in the secret prison facilities run by the Central Intelligence Agency (CIA).

Your predecessor, General Michael V. Hayden, has admitted that Mr. Al-Nashiri was subjected to water boarding, which is a form of torture, while in the custody of the CIA. According to the publicly released report from the International Committee of the Red Cross (ICRC) which was dated February 14, 2007, and entitled ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, water boarding was only one of the many forms of torture inflicted on Mr. Al-Nashiri while in the custody of the CIA.

According to that report, while in CIA custody, Mr. Al-Nashiri was also forced to stand with his wrists shackled to a bar in the ceiling for prolonged periods of time—extending to several days— and was threatened with sodomy and with the rape and arrest of his family members. Many of the prisoners the ICRC interviewed did not want their names used in the report. As such, though the ICRC report lists much more cruel, degrading and inhuman treatment, the report is not specific as to what additional treatment was inflicted on Mr. Al-Nashiri while held in the CIA’s “black” sites.

Throughout that time he was not able to communicate with his family, a lawyer or anyone. Effectively the CIA “disappeared” him for four years while it tortured him at will and beyond the eyes of the world.

The CIA and other government agencies also admitted to the purposeful destruction of at least ninety-two video tapes of interrogations and observations of prisoners in its black sites, specifically including the destruction of video tapes of water boarding and other observations of Mr. Al-Nashiri.

Had Mr. Al-Nashiri known that the CIA possessed these video tapes and intended to destroy them, he would have demanded their preservation. However, neither he, his lawyers nor the courts learned of the CIA’s plan until after the tapes had been destroyed and now they are forever gone.

In light of the destruction of video taped evidence of the torture inflicted upon Mr. Al-Nashiri and the newly released report from the ICRC describing still more horrific tortures, we noted with interest your message to CIA personnel on April 9, 2009, in which you stated that the CIA would be “decommissioning” the CIA secret facilities.

Although we welcome your decision to cease the secret detention and mistreatment of prisoners of the United States Government, we are concerned that the CIA intends to actually destroy the sites—including the buildings and the equipment used to interrogate and torture Mr. Al-Nashiri—before Mr. Al-Nashiri has had the opportunity to fully investigate his conditions of confinement. We write to avoid the destruction of more evidence—namely the actual secret facilities themselves.

Mr. Al-Nashiri was charged in the Military Commission with offenses that carried the penalty of death. Although those charges have now been dismissed, we fully expect the government to prosecute Mr. Al-Nashiri and again charge him with offenses that could carry the death penalty. In fact the government is now actively working to determine in what forum he will be prosecuted.

Regardless of the forum in which Mr. Al-Nashiri is tried, evidence of his conditions of confinement will be relevant in assessing the reliability of any of his statements and any statements of other prisoners similarly held that the government plans to use against him. This evidence will also be highly relevant during any sentencing proceeding. It is exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and he will be entitled to it.

The CIA’s secret prison facilities and the inquisition-like treatment meted out to its prisoners were a tragic, immoral and illegal period in our history that we all hope has come to an end. But its effects are enduring, especially on someone like Mr. Al-Nashiri who, according to the ICRC report, lived through the horror chambers of at least three different secret prisons. Those buildings, interrogation cells, prisoner cells, shackles, water boards and other equipment must be preserved until such time as we have an adequate opportunity to document it and a court can determine the relevance and materiality of this evidence. As a criminal defendant, the Fifth, Sixth and Eighth Amendments to the United States Constitution will entitle him to discovery of exculpatory evidence and this is surely exculpatory evidence.

Therefore, we are requesting that you preserve all the secret sites. By this letter you are now on notice that we will be seeking discovery and inspection of this highly relevant evidence in whatever court Mr. Al-Nashiri finds himself. We have already lost the video tapes which would have allowed a jury to see what happened to Mr. Al-Nashiri in those secret prisons. We cannot lose the remaining tangible evidence of the actual prisons themselves and the instruments of torture within them.

//s//
STEPHEN C. REYES
Lieutenant Commander
JAGC, USN

CHRISTOPHER CAZARES
Captain, USAF

Military Defense Counsel

NANCY HOLLANDER
Freedman Boyd Hollander Goldberg & Ives P.A.
20 First Plaza, Suite 700
Albuquerque, NM 87102

THERESA DUNCAN
Freedman Boyd Hollander Goldberg
& Ives P.A.
20 First Plaza, Suite 700
Albuquerque, NM 87102

RICHARD KAMMEN
Gilroy, Kammen
One Indiana Square, #150
Indianapolis, IN 46204

Civilian Defense Counsel

Cc:
John Rizzo, CIA General Counsel (Acting)
Central Intelligence Agency
Washington, DC 20505

Eric Holder, Attorney General
United States Department of Justice
Office of the Attorney General
950 Pennsylvania Avenue
Washington, D.C. 20530

The White House
ATTN: Greg Craig, Esq., White House Counsel
Office of White House Counsel
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500

Submitting Evidence to the Spanish Court on U.S. Torture Plans

Scott Horton has reported that "Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo." The others targeted are John Yoo, Jay Bybee, David Addington, Doug Feith and William Haynes.

I wrote a series on the issue of grounds for prosecution not too long ago. Now I'd like to help the Spanish prosecutors by supplying some basic evidence, courtesy of the Senate Armed Services Committee Report on "the Treatment of Detainees in U.S. Custody", released late last year.

The rationale for the prosecution is established international law, the same sort of law that led to Spain charging August Pinochet for war crimes, led by the same Spanish judge that referred the Bush crew for possible prosecution, Baltasar Garzon.

Setting the Stage

As one reads the following, please keep in mind that there are many current controversies concerning memos written by Bush's Office of Legal Counsel that were meant to legitimize "aggressive" interrogation techniques and treatment of "war on terror" prisoners. Tomorrow, in fact, is the deadline set by a U.S. court for the release of some of these memos still kept secret, including one dated August 1, 2002 by Jay Bybee (or ghost-written by John Yoo and/or David Addington) giving legal approval to a host of "enhanced interrogation" techniques, including reportedly waterboarding.

The evidence I supply here predates that portion of the timeline. Whether or not Obama releases these memos, there is plenty of evidence to proceed with prosecutions. Jason Leopold reported at The Public Record last Saturday that the Department of Justice told the judge in the ACLU suit to "release documents related to 92 interrogation videotapes that were destroyed by the CIA in 2005" that they would only give information on videotapes going back to August 2002. But, as Leopold explains, the FBI Inspector General already documented FBI agent reports of "near torture" interrogations of prisoner Abu Zubaydah as far back as May 2002.

And now, of course, we also have the release of a previously secret report by the International Committee of the Red Cross documenting torture by the CIA.

But all that in good time, for now I want to discuss Department of Defense and Defense Intelligence Agency collaboration with the Joint Personnel Recovery Agency in plotting "exploitation" practices to be used by U.S. interrogators that would draw upon the torture training model of JPRA's SERE program. SERE is administratively part of Joint Personnel Recovery Agency (JPRA) for the Department of Defense.

The timeline for this begins as early as December 2001, before, as the SASC report makes clear, Bush's presidential order, based on an opinion by Alberto Gonzales made as early as January 9, 2002, which "closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees." The pre-January 2002 timeline is crucial, as it stands outside, i.e., is prior to, all governmental attempts to cover their intent to torture, and to break international laws and treaties to which the government was signatory.

I humbly suggest that those with means forward what follows to the Spanish prosecutors, once the final announcement of warrants issued is made. The fact that we are still waiting, and the day has passed in Spain, and no warrants have been issued, speaks to the probable amount of strong political pressure from the U.S. exerted on Spain at this time. (For more details on how the struggle for prosecutions is playing out in the United States, including the role of Democratic Senators Feinstein and Rockefeller insisted that CIA torture suspects like Stephen Kappes, #2 at CIA now, were kept on in the Obama-Panetta reign, the better to stifle possible prosecutions of CIA officials -- such shutdown of prosecutions got a push from CIA Director, former Clinton staffer Leon Panetta last week -- see Glenn Greenwald's recent article.)

In what follows, I concentrate on a period at the very beginning of the Bush torture program's existence, as it came into being.

The Evidence

I have added in bold emphases where I felt appropriate, to guide the reader to the essential points. But I strongly recommend that those interested read not only the full quote herein, but the entire report.

(U) On February 7, 2002, President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections afforded by the Third Geneva Convention. The President’s order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees. While the President’s order stated that, as “a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions,” the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in U.S. custody.

(U) In December 2001, more than a month before the President signed his memorandum, the Department of Defense (DoD) General Counsel’s Office had already solicited information on detainee “exploitation” from the Joint Personnel Recovery Agency (JPRA), an agency whose expertise was in training American personnel to withstand interrogation techniques considered illegal under the Geneva Conventions.

(U) JPRA is the DoD agency that oversees military Survival Evasion Resistance and Escape (SERE) training. During the resistance phase of SERE training, U.S. military personnel are exposed to physical and psychological pressures (SERE techniques) designed to simulate conditions to which they might be subject if taken prisoner by enemies that did not abide by the Geneva Conventions. As one JPRA instructor explained, SERE training is “based on illegal exploitation (under the rules listed in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War) of prisoners over the last 50 years.” The techniques used in SERE school, based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy’s SERE school, it included waterboarding.

(U) Typically, those who play the part of interrogators in SERE school neither are trained interrogators nor are they qualified to be. These role players are not trained to obtain reliable intelligence information from detainees. Their job is to train our personnel to resist providing reliable information to our enemies. As the Deputy Commander for the Joint Forces Command (JFCOM), JPRA’s higher headquarters, put it: “the expertise of JPRA lies in training personnel how to respond and resist interrogations – not in how to conduct interrogations.” Given JPRA’s role and expertise, the request from the DoD General Counsel’s office was unusual. In fact, the Committee is not aware of any similar request prior to December 2001. But while it may have been the first, that was not the last time that a senior government official contacted JPRA for advice on using SERE methods offensively. In fact, the call from the DoD General Counsel’s office marked just the beginning of JPRA’s support of U.S. government interrogation efforts.

The Exhibits

The one document produced from the December 2001 contact -- a fax cover sheet from the Pentagon's Joint Personnel Recovery Agency (JPRA), sent from "Lt. Col. Dan Baumgartner" to "Mr. Richard Shiffrin," who worked for Haynes's in Rumsfeld's DoD General Council office -- introduces a theme of aggressive courting by JPRA/SERE personnel to take on the interrogations/exploitation task. We only have the fax cover sheet at present. I have been informed that the full document is not available as it concerns a different governmental entity, one that did not sign off on declassification, as yet. Perhaps when the full unredacted SASC report is released, supposedly very soon now, we will be able to add another exhibit.

Mr. Shiffrin --
Here's our spin on exploitation. If you need experts to facilitate this process, we stand ready to assist. There are not many in DoD outside of JPRA that have the level of expertise we do in exploitation and how to resist it.

"Mr. Shiffrin refers to Mr. Richard Shiffrin, who worked for William Haynes's in Donald Rumsfeld's DoD General Council office. Mr. Haynes is reportedly one of the officials the Spanish prosecutors intend to indict. Lt. Col. Dan Baumgartner was then head of JPRA.

In June 2008, Dan Baumgartner also gave testimony under oath to the Senate committee regarding the Dec. 2001 approach by DoD. From his testimony:

My recollection of my first communication with OGC relative to techniques was with Mr. Richard Shiffrin in July 2002. However, during my two interviews with Committee staff members last year I was shown documents that indicated I had some communication with Mr. Shiffrin related to this matter in approximately December 2001. Although I do not specifically recall Mr. Shiffrin’s request to the JPRA for information in late 2001, my previous interviews with Committee staff members and review of documents connected with Mr. Shiffrin’s December 2001 request have confirmed to me the JPRA, at that time, provided Mr. Shiffrin information related to this Committee’s inquiry. From what I reviewed last year with Committee staff members, the information involved the exploitation process and historical information on captivity and lessons learned.

The theme of JPRA promoting SERE expertise surfaces in Iraq a little less than two years after the first DoD approach. A September 9, 2003 email from Col. Randy Moulton, Commander of JPRA to Col. Mike Okita and a redacted addressee (could this be Maj. Gen. Geoffrey Miller, who, coming from his command in Guantanamo, on September 9 was just concluding his evaluation of interrogation procedures in Iraq) again makes the same point about JPRA "expertise".

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 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 would remind my readers here that SERE exploitation famously includes the use of physical assault, stress positions, forced nudity, sleep deprivation, sensory overload, and other forms of physical and psychological torture.

Other Evidence: Re John Walker Lindh

Finally, I would like to suggest that there is at least one other piece of evidence related to this early use of torture and/or planning for torture. This concerns the report by Jesselyn Radack, a Justice Department attorney in 2001, tasked as a legal ethics advisor in DoJ's Professional Responsibility Advisory Office, with advising on the procedures surrounding the interrogation of the captured American John Walker Lindh in Afghanistan.

Radack wrote in 2007:

According to a secret document I obtained in June 2004, an Army intelligence officer "advised that before interviewing Lindh, instructions came from higher headquarters for him to coordinate with JSOTF [the Joint Special Operations Task Force] JAG officer. He was told . . . he could collect on anything criminal that was volunteered."

But Higher Headquarters told the intelligence office more than that. Rumsfeld's office told him not to handle Lindh with kid gloves. In a stunning revelation, the documents states: "The Admiral told him that the Secretary of Defense's counsel had authorized him to 'take the gloves off' and ask whatever he wanted." These instructions to get tough wth Lindh, contained in the document I have, are the earliest known evidence that the Bush Administration was willing to push the envelope on how far it could go to extract information from suspected terrorists.

Unfortunately, Ms. Radack does not supply the date for this document, or to whom it was addressed by the Army Intelligence officer in question. I'm sure that the Spanish court could obtain this document in full, if it so desired.

Concluding Remarks

Truly the evidence is massive for government malfeasance and crimes against humanity in the planning and use of torture and other cruel, inhumane, and degrading procedures against detainees held by both the Department of Defense and the CIA in the past eight years. Moreover, as documented by both myself and the Center for Constitutional Rights, a program that maintains illegal interrogation methods persists within current U.S. procedures, primarily, though not limited to, the use of techniques like isolation, partial sensory deprivation, and sleep deprivation, in Appendix M of the current Army Field Manual.

I congratulate the Spanish prosecutors in advance for taking on this crucial litigation, if in fact the warrants are finally issued. The U.S. is also bound by both domestic and international law to take up prosecutions, and it is a serious dereliction of law and duty of the highest order that this has not already occurred.

I hope either Spanish, or other, including U.S. prosecutors, take up the evidence I have presented here as telling documentation of U.S. official plans to subvert the Geneva Conventions and the UN Convention Against Torture, if not the U.S. War Crimes Act, and to have done so prior to the issuance of any executive office legal opinions that would have made it supposedly legitimate (an assertion to any legitimacy I also believe to be without merit).

U.S. readers of this should flood the DoJ offices with demands to initiate prosecutions forthwith. The rule of law is at stake. If the highest officials in the land can break the most serious laws with impunity, then there is no rule of law. There is only tyranny.

An EFF Appeal to "Fight Back Against Wiretapping Cover-up"

I received this fund-raising appeal from Electronic Frontier Foundation, and thought it worthy of greater coverage.

In a stunning reversal, the Obama Administration has decided to continue the cover-up of the Bush Administration's warrantless wiretapping program. EFF has been fighting to hold the government and telcos accountable for this illegal surveillance since 2005. Now, the Obama Administration is asking a court to throw out our latest lawsuit challenging the NSA's dragnet spying, this one against the government directly. This attempt to shield the surveillance program from court scrutiny is a stark reminder that eternal vigilance is the price of liberty, no matter who is sitting in the Oval Office.

Please help EFF in the ongoing fight for accountability:
http://secure.eff.org/wiretapping

The Obama Administration is arguing that the wiretapping program is a "state secret" and that the courts are barred from ever judging its legality. Even worse, they're arguing that under the PATRIOT Act, the United States government possesses complete "sovereign immunity" against lawsuits for spying that violates federal privacy laws. It's a shocking argument that even the Bush Administration never made.
EFF cannot fight this alone. Over 70% of EFF's funding comes from individuals like you. Please lend your support to our ongoing efforts to secure accountability from the government, end the warrantless surveillance, and deliver justice to the countless ordinary Americans caught in the NSA's surveillance net!

Help support this worthy effort!

New York Times Blasts Obama Appeal on Habeas at Bagram

The Sunday editorial in the New York Times was highly critical of the recent decision of the Obama administration to appeal the D.C. Federal Appeals Court ruling allowing habeas rights to some prisoners at Bagram.

The government furthermore asked for a stay in the proceedings of any cases under this ruling:

In sum, the extensive harms to the Government and the public interest involved in further proceedings envisioned by the Court in these cases, and the likelihood of respondents’ success on the merits of appeal, strongly warrant a stay pending appeal.

The NYT editorial, "The Next Guantánamo," put it this way:

In February, the new administration disappointingly followed the example of the Bush White House in opposing judicial review for prisoners who have been indefinitely detained at Bagram without any charges or access to lawyers. The administration has now added to that disappointment by appealing a new federal court ruling extending the right of habeas corpus to some Bagram detainees....

Although Judge Bates’s ruling addresses only 30 of 600 or so prisoners, he found that the process for determining whether a person has been properly labeled an “enemy combatant” even “less sophisticated and more error-prone” than the process the Supreme Court deemed inadequate at Guantánamo. This points to a wider due process problem affecting everyone now held at Bagram.

In the absence of a fair review process that complies with international and military law, there is no reason to feel confident that everyone detained at Bagram deserves to be there. The administration should focus on putting such a process in place, instead of wasting its energies in an appeal that simply recycles extravagant claims of executive power and perpetuates the detention policies of the Bush administration.

The growing opposition to Obama's policies on habeas, executive "state secrets" privilege, and other positions aimed at strengthening the Bush-era stand on Executive power, was described by Glenn Greenwald in an article today:

Even for the hardest-core Obama loyalists, it's rather difficult to attribute these increasingly harsh condemnations of Obama's civil liberties, secrecy and executive power abuses to bad motives or ignorance when they're coming from the likes of Russ Feingold, TalkingPointsMemo, the Center for American Progress, Nancy Pelosi, EFF, the ACLU, The New York Times Editorial Board, Keith Olbermann, Jonathan Turley, The American Prospect, Bruce Fein, Digby, along with some of the most enthusiastic Obama supporters and a bevvy of liberal law professors and international law experts -- those who were most venerated by progressives during the Bush era on questions of the Constitution and executive power....

There is, as Pelosi said this week, clearly a strong aversion -- one might say "desperation" -- on the part of the Obama White House to avoid anything that could increase the pressure to commence investigations and prosecutions of Bush crimes. As Slate's Dahlia Lithwick succinctly put it: "by keeping the worst of the Bush administration's secrets hidden, the Obama Justice Department can defer awkward questions about prosecuting the wrongdoers"....

And Howard Fineman was likely correct when he told Olbermann on Tuesday night that Obama is petrified of alienating the permanent intelligence and military establishments in Washington which might be alarmed by any attempt to abandon these vast powers, particularly where reversing course could raise the likelihood of prosecutions.

From one standpoint it doesn't matter what the origins of Obama's motives, his arguments are simply wrong. But from another standpoint, it does matter a great deal, as it educates the citizen about the true underlying power relationships in this country.

Imagine, the President of the United States is beholden to, if not in thrall, to the Pentagon and intelligence agencies, so much so that he would argue anti-democratic and anti-Constitutional arguments redolent of the Bush-era Executive power grab. That's a dangerous situation, but it is most likely the situation the country is in.

The irony is that while we have a Chief Executive arguing for an expanded view of Executive powers, the Chief Executive himself is subordinate to, for instance, the Joint Chiefs of Staff, or the CIA bureaucracy. It all sounds so much like Fletcher Prouty's view of "the secret team," that we may wish to revisit the writings of this much-maligned figure.

The Secret Team (ST) being described herein consists of security-cleared individuals in and out of government who receive secret intelligence data gathered by the CIA and the National Security Agency (NSA) and who react to those data, when it seems appropriate to them, with paramilitary plans and activities, e.g. training and "advising" -- a not exactly impenetrable euphemism for such things as leading into battle and actual combat -- Laotian tribal troops, Tibetan rebel horsemen, or Jordanian elite Palace Guards.

Membership on the Team, granted on a "need-to-know" basis, varies with the nature and location of the problems that come to its attention, and its origins derive from that sometimes elite band of men who served with the World War II Office of Strategic Services (OSS) under the father of them all, General "Wild Bill" William J. Donovan, and in the old CIA.

The power of the Team derives from its vast intragovernmental undercover infrastructure and its direct relationship with great private industries, mutual funds and investment houses, universities, and the news media, including foreign and domestic publishing houses. The Secret Team has very close affiliations with elements of power in more than three-score foreign countries and is able when it chooses to topple governments, to create governments, and to influence governments almost anywhere in the world.

Beyond Pirate Rescue: What's Really Happening in Somalia?

Also posted at Daily Kos, where the "Comments" section has a great deal of amplifying material on this subject, and is very much worth perusing.

The dramatic rescue of Captain Richard Phillips from Somali pirates made for smash headlines in the U.S. and around the world, but is not the first such dramatic rescue from pirates in these waters. The French had dramatic video footage of one of their captures.

What has not been covered in the news, obsessed with GOP hopes for Obama's first big failure, and Democrats patriotic triumphalism, is that the U.S. has played a big role in plunging Somalia into the chaos that has allowed piracy to take hold there, and that it's an open question how the Obama administration will deal with the bigger picture.

No one wants to see an innocent man be killed or held hostage, so it was with some satisfaction that most heard of the rescue of the sea captain who had offered himself up as hostage for the safety of his crew.

But this kind of small scale human drama is dwarfed by the reality of what has been happening in Somalia for almost two decades now. I don't know why large-scale human drama doesn't play as well in the U.S. media, but I suspect it is because when it serves U.S. interests to exploit a tragedy, headlines are rolled out. When the tragedy, such as the millions of refugees created by the U.S. invasion and occupation of Iraq, is politically inconvenient, the headlines are mysteriously absent.

An Inconvient Fact: The U.S. Helped Create the Conditions for Piracy

From Times Online (a conservative UK newspaper -- emphases added -- H/T Chris Floyd):

Years of violence, neglect and misguided policies have left Somalia one of the most dangerous countries and a breeding ground for the pirates attacking one of the world’s busiest shipping routes.

Today the northeast area of the country, including Puntland, has been carved up by warlords who finance themselves by drug and gun running. This is also the heartland of the pirates, whose main backers are linked to the Western-backed government. Radical Islamists control much of the south, including the key port of Kismayo and the porous border area with Kenya, a staunch Western ally.

This has realised a Western nightmare, which was supposed to have been destroyed by Ethiopia’s American-backed invasion of Somalia two years ago in support of a puppet government created by the international community. That alliance spanned the spectrum from extreme radicals to moderate, devout Muslims. The latter were in charge.

Everyone – except Pentagon planners, it seems – knew that Somalia had never proved fertile territory for Saudi-style radical Islam. However, indiscriminate bombing of civilian areas by Ethiopia, Somalia’s historic enemy, with huge casualties, put an end to that. The Islamists were driven out, the moderates went into exile and the hardliners took control of the south with a popular powerbase beyond their wildest dreams.

Approximately 20,000 have died, and almost two million people have been displaced in this senseless civil war, prompted in part by the U.S., and certainly a proxy war with numerous players (the U.S., Ethiopia, various Arab states, Eritrea, even North Korea!, as we shall see).

So while I'm glad this sea captain was rescued, I don't look at the U.S. government as some sort of savior. And I certainly am not angry at Somalians, who did not ask for the rule of warlords, pirates, and hardline Islamists in a fractured state ruling over them. Many have fled for the refugee camps already.

The Huffington Post published an article yesterday by Joanne Offer, IRC information officer in Nairobi, describing the miserable conditions in which a quarter-million Somalian refugees are living in the overcrowded Dadaab camp in eastern Kenya. Dr. Vincent Kahi, the IRC’s health coordinator, described a cholera outbreak: “To date, the number of cases . . . has been small -— just 26 —- and we have managed to contain the outbreak, but resources in the camps remain massively overstretched and provide ideal conditions for diseases like cholera to keep coming back. All [aid] agencies in Dadaab are doing their best, but the sheer number of people in such a small space and in an area with water scarcity is a recipe for future problems.”

While I do not blame Obama -- and please note this, readers who may think I'm trashing Obama -- such facts mute any enthusiasm I have over this latest military show. Again, I'm glad an innocent man was saved, but I'm sick of the U.S. media, who makes a huge thing because it's an American life, but barely makes a peep over what U.S. policy in the region has wrought in past years, and to the miserable suffering of the people in the region.

Convergent Evidence of U.S. Duplicity in Somalia

Those touting the U.S. raid as some sort of Entebbe, i.e., a military action that will make others think twice about messing with the big, bad United States, just don't get it. Even U.S. Naval Forces Central Command chief Vice Adm. Bill Gortney stated after the rescue, "This could escalate violence in this part of the world, no question about it."

Other pirates in the region are quoted as making violent threats, but the real truth is that the pirates already understand that the U.S. will intervene in their region at will, as in the backing the Ethiopian invasion of their country to overthrow their government. Does anyone really think that this one incident will significantly change their consciousness of what the U.S. can do?

A commenter in another diary called Somalia "a pawn of foreign interests and paranoia"? I'd say so. The former includes the United States, and their paranoia is well-earned.

From an article in The Progressive in Dec. 2008:

Alas, there are no good guys in this war. Ethiopian President Meles Zenawi is a nasty piece of work. He has been a darling of the United States ever since the Clinton Administration’s time, when he was hailed as being part of the “African renaissance.” The war on terror has drawn Zenawi, a Christian leader of a religiously mixed but Christian-dominated country, closer to the Bush Administration. African renaissance man or not, he has been ruthless in his exercise of power. For instance, Ethiopian security forces killed nearly fifty people in November 2005 in a crackdown on protests. They also arrested thousands, including politicians, journalists, and activists.

U.S. policy in Somalia is born out of desperation. The United States abandoned Somalia after its failed mission in the early 1990s, and looked the other way as the country was mired in anarchy for the next decade. It was only recently that the Bush Administration, frightened by Islamic fundamentalism, began a dubious policy of handing out cash to Somali warlords as a way to check the Islamist militias....

The human toll of the invasion is increasing day by day. Plus, the U.S. backing for the invasion will add to its unpopularity on the continent and in the Middle East. The African Union and the Arab League have called for Ethiopia to pull out, as have Kenya and Djibouti. The United States should firmly add its voice, and instead of backing military adventures should invest in the Somali peace process as a way of staving off the Islamist threat.

The Ethiopian invasion of Somalia had full U.S. military backing. So you see, the Somalis have already tasted what U.S. military power can do. From coverage in Wired:

Citing the possibility that the Islamic Courts government was harboring terrorists, the Pentagon ordered gunships, fighters and warships to attack targets in Somalia, paving the way for Ethiopian tanks to sweep south, destroying Somalia's first relatively stable government in 15 years. What Somalia was left with is starvation, tribal infighting, a brutal Ethiopian occupation and, ironically, a genuine Islamic insurgency where before there was only a suspicion of one....

Even the European Union warned the U.S. that bombing Somali towns "only escalates violence," as it purportedly goes after Al Qaeda Islamists.

Oh, and here's another example of U.S. duplicity and cynicism in the region that will blow your mind, from the NY Times in April 2007:

By MICHAEL R. GORDON and MARK MAZZETTI
WASHINGTON, April 7 — Three months after the United States successfully pressed the United Nations to impose strict sanctions on North Korea because of the country's nuclear test, Bush administration officials allowed Ethiopia to complete a secret arms purchase from the North, in what appears to be a violation of the restrictions, according to senior American officials.

The United States allowed the arms delivery to go through in January in part because Ethiopia was in the midst of a military offensive against Islamic militias inside Somalia, a campaign that aided the American policy of combating religious extremists in the Horn of Africa.

Obama and Somalia

What of President Obama's policy towards Somalia? One sea rescue does not make a foreign policy.

When he was running for president, Obama stated that he wanted “a coherent strategy for stabilizing Somalia."

Writing at Foreign Policy in Focus earlier this year, Francis Njubi Nesbitt described the situation for the new Obama administration (emphasis in original):

Among the litany of booby traps left by the Bush administration for the Obama team, Somalia could be one of the most complicated and bizarre....

The Obama administration, if Secretary of State Hillary Clinton's confirmation hearing is any indication, also views the Horn of Africa in the context of terrorism.

Nevertheless, Obama has also talked of his preference for diplomatic solutions. Somalia would be an ideal place to test his diplomacy.

Nesbitt described the particulars of the Ethiopian invasion, providing readers here with yet another description of the situation, the better for us to form an opinion of what has occurred in that part of the world.

Ethiopia's invasion of Somalia in December 2006, backed by the United States, sparked an Islamist resistance that led to thousands of civilian deaths, displaced over a million people, and depopulated the capital, Mogadishu. But instead of focusing on the aftermath of this crisis and helping foster a peace process, the United States, European Union, and other international actors are engaged in the more dramatic and media-friendly anti-piracy campaign....

While the pirates attract the lion's share of world attention, the Islamist militias are gaining ground and are sure to control the whole country once Ethiopia withdraws its troops. The conflict has spread to other parts of the region, with suicide bombings in the formerly stable Somaliland and Puntland regions, piracy in international waters, and cross-border kidnappings in Kenya.

U.S. and EU actions and policies since 2001 were supposed to prevent this kind of chaos. By treating Somalia and the region as a battle-zone in the "war on terror," however, the international community has made things worse....

Nesbett describes U.S. policy in the Bush years as "obdurate and counterproductive." The CIA backed the warlords, "setting the stage" for the rise of the "Islamic Courts", which in turn stoked the invasion of Ethiopia, in the name of the "war on terror." As we can see, even the North Koreans got into the act.

What a concoction of cynicism, ignorance, misdealing, and big power politics, with the Somali people the innocent victims! The media talk about piracy and dramatic sea rescues does not change the situation in that part of the world. In fact, if the chaos in Somalia, stirred up by the U.S. and Ethiopia, had not spilled into the world's sea lanes, then we most likely would not be talking about Somalia at all right now.

I can't take much from Obama's sign-off on the rescue of Capt. Phillips. I think the U.S. couldn't afford to let the captain of a U.S.-flagged ship (a rare enough thing in itself) be held hostage or killed. But what now of Somalia? Most likely it will slip off the front pages, and the excited recommended diaries at Daily Kos, and back into its state of forgotten misery, a pawn in the U.S. perpetual war on terror.

Nesbitt ends his article hopefully. I don't share his sense of hope, but will end here, too, because at the moment, even desperate hope may be all we have.

Obama's pledge to change the Bush administration's belligerent and counterproductive policies could have far-reaching consequences for the region as a whole.

Does Torture "Work"?

Nell Lancaster had a very good posting at her blog the other day, Torture: It's not about "intelligence gathering".

One of the most persistent and discouraging themes that crops up in discussions of torture is the question of whether it "works" or not. The people engaging this question make a fatally wrong assumption: that the goal of torturers is the same as that of legitimate interrogators -- to get reliable information useful for active, circumscribed military operations or police investigations.

But torture does something else altogether, and is designed to do so: it extracts false confessions. These confessions, along with the agony of the torture itself, serve the goals of limitless, lawless "war": to humiliate and break opponents, to divide them from supporters, to terrify those not actively in opposition into staying inactive, and, most importantly, to justify the operations of the dirty war within which torture takes place: commando raids, assassinations, spying, kidnapping, secret and/or indefinite (and unreviewable) detention, and further torture.

I think Nell makes some very good points, and they are especially applicable to the use of U.S. torture during the period we have lived and still living through, beginning with the large-scale revival of the U.S. torture program after 9/11.

However, I thought there was more to say about the issue of "false confessions," and on the issue of the so-called efficacy of torture in general. What follows is my comment to Nell's posting at A Lovely Promise (her blog) (links within have been added):

Re the torture argument.

The U.S. government spent serious money and decades thinking about and experimenting upon torture and other forms of controlling human behavior.

I think the issue is falsely separated into orthogonal realms where one supposedly tortures to gain information, OR one tortures to terrorize or gain control (this would include the idea of eliciting false confessions, as well).

It would be wrong to suppose that torture does not sometimes occur as an attempt to gain information. I worked in therapy with a former Central American insurgent who was captured, and then tortured to reveal the names of his comrades. The poor fellow did reveal names under torture, and suffered tremendous guilt as a result (and hence had come to see me).

I have also worked with torture survivors who clearly were tortured as a matter of social control and terror, and had no identifiable information or connection that could feasibly make them a possible source of intelligence. (I remember one case particularly well of a man from Egypt.)

I also have worked with some who were tortured and coerced to make false confessions.

I think that like all human behavioral and psychosocial phenomenon, the desire to isolate motivations into identifiable causal factors betrays our understanding of the situation.

The human psyche is internally divided, determining reality based on a complex set of assumptions, identifications with others (or with entities or causes), and a large retinue of defensive mental maneuvers to ward off all kinds of anxiety, including the anxiety of not knowing or not belonging.

The result is a psycho-social-emotional stew of motivational factors that defies any easy kind of categorization, and that is what I believe we have when we look at the purely human phenomena of torture.

It gets even more complicated when we look at the question of "false confessions." The latter can often be a mixture of fact and fiction. They can also be rendered for use in very complicated counter-intelligence schemes, so that it's not clear what kind of information was desired or not, and by whom.

The classic example of the latter is the paradigm case of the U.S. torture experience: the "confessions" by U.S. Air Force officers captured by the Chinese and North Koreans, who confessed to operating aircraft used in a secret U.S. program to use biological weapons during the Korean War.

Were these confessions true or false? If you believe torture always produces garbage, then it must be false. But empirically, it is not true that torture produces only bad intel. When CIA torturers have discussed their results publicly, as in Biderman's The Manipulation of Human Behavior, they make it clear that best results for accuracy happen in a thin band between normal interrogation and resistance and overt brutality or overuse of psychological techniques which collapse the mind of the victim.

In the case of the captured airmen, the U.S. denied any such use of bio weapons, despite the findings of an independent commission to study the issue. Only much later, in the early 21st century, have some legitimate historical examinations found that there may have been some truth in the airmen's confessions. (See Endicott and Hagerman, The U.S. and Biological Warfare.)

To conclude, it is not a question of the efficacy of torture to provide information, as you ably point out. The motives for torture, however, are complex, interconnected and over-determined, so that every instance of its use must be looked at in its cultural-political-historical context to see to what degree one causal aspect played a more or less significant role as against a number of other possible causes.

A final thought: by entering into the argument as to whether or not torture "works", we move farther away from the primary point, which is that torture is unacceptable and illegal no matter what the reason or the cause. Period.

Otherwise, it would be as if we were still arguing about cannibalism, with one group arguing whether or not it really provided nutrition or not.

For further thoughts, one can see an earlier essay I wrote on this topic,
Some Thoughts on Utilitarian Arguments Against Torture

Allen Ginsburg Reading "America": "When Will We End the Human War?"

America I've given you all and now I'm nothing.
America two dollars and twenty-seven cents January 17, 1956.
I can't stand my own mind.
America when will we end the human war?
Go fuck yourself with your atom bomb
I don't feel good don't bother me.
I won't write my poem till I'm in my right mind.
America when will you be angelic?
When will you take off your clothes?
When will you look at yourself through the grave?
When will you be worthy of your million Trotskyites?
America why are your libraries full of tears?
America when will you send your eggs to India?
I'm sick of your insane demands.
When can I go into the supermarket and buy what I need with my good looks?
America after all it is you and I who are perfect not the next world.
Your machinery is too much for me.
You made me want to be a saint.
There must be some other way to settle this argument.
Burroughs is in Tangiers I don't think he'll come back it's sinister.
Are you being sinister or is this some form of practical joke?
I'm trying to come to the point.
I refuse to give up my obsession.
America stop pushing I know what I'm doing.
America the plum blossoms are falling.
I haven't read the newspapers for months, everyday somebody goes on trial for
murder.
America I feel sentimental about the Wobblies.
America I used to be a communist when I was a kid and I'm not sorry.
I smoke marijuana every chance I get.
I sit in my house for days on end and stare at the roses in the closet.
When I go to Chinatown I get drunk and never get laid.
My mind is made up there's going to be trouble.
You should have seen me reading Marx.
My psychoanalyst thinks I'm perfectly right.
I won't say the Lord's Prayer.
I have mystical visions and cosmic vibrations.
America I still haven't told you what you did to Uncle Max after he came over from Russia.

I'm addressing you.
Are you going to let our emotional life be run by Time Magazine?
I'm obsessed by Time Magazine.
I read it every week.
Its cover stares at me every time I slink past the corner candystore.
I read it in the basement of the Berkeley Public Library.
It's always telling me about responsibility. Businessmen are serious. Movie
producers are serious. Everybody's serious but me.
It occurs to me that I am America.
I am talking to myself again.

Asia is rising against me.
I haven't got a chinaman's chance.
I'd better consider my national resources.
My national resources consist of two joints of marijuana millions of genitals
an unpublishable private literature that goes 1400 miles and hour and
twentyfivethousand mental institutions.
I say nothing about my prisons nor the millions of underpriviliged who live in
my flowerpots under the light of five hundred suns.
I have abolished the whorehouses of France, Tangiers is the next to go.
My ambition is to be President despite the fact that I'm a Catholic.

America how can I write a holy litany in your silly mood?
I will continue like Henry Ford my strophes are as individual as his
automobiles more so they're all different sexes
America I will sell you strophes $2500 apiece $500 down on your old strophe
America free Tom Mooney
America save the Spanish Loyalists
America Sacco & Vanzetti must not die
America I am the Scottsboro boys.
America when I was seven momma took me to Communist Cell meetings they
sold us garbanzos a handful per ticket a ticket costs a nickel and the
speeches were free everybody was angelic and sentimental about the
workers it was all so sincere you have no idea what a good thing the party
was in 1835 Scott Nearing was a grand old man a real mensch Mother
Bloor made me cry I once saw Israel Amter plain. Everybody must have
been a spy.
America you don't really want to go to war.
America it's them bad Russians.
Them Russians them Russians and them Chinamen. And them Russians.
The Russia wants to eat us alive. The Russia's power mad. She wants to take
our cars from out our garages.
Her wants to grab Chicago. Her needs a Red Reader's Digest. her wants our
auto plants in Siberia. Him big bureaucracy running our filling stations.
That no good. Ugh. Him makes Indians learn read. Him need big black niggers.
Hah. Her make us all work sixteen hours a day. Help.
America this is quite serious.
America this is the impression I get from looking in the television set.
America is this correct?
I'd better get right down to the job.
It's true I don't want to join the Army or turn lathes in precision parts
factories, I'm nearsighted and psychopathic anyway.
America I'm putting my queer shoulder to the wheel.

D.C. Court: No Judicial Appeal on Torture Transfer for Uighurs, Other Gitmo "Detainees"

Center for Constitutional Rights reports today that the U.S. Court of Appeals for the District of Columbia overruled a district court ruling, in Kiyemba et al. v. Barack Obama (PDF), that prisoners at Guantanamo must get 30 days notice of any pending transfer to another nation. The Court said that the judiciary cannot "second-guess" the Executive regarding its assertion that prisoners would not be transferred to a country that would torture them.

According to the ruling, the decision arose from the Uighurs case, which has been much in the news in past months, as the U.S. has already said these prisoners are not "enemy combatants", and are not being charged with any crime (even as they remain at Guantanamo, where they have been held for over seven years, many of them in windowless cells 22 hours a day). The Circuit Court notes:

Nine Uighurs held at Guantanamo Bay, in order to challenge their detention, petitioned the district court for a writ of habeas corpus. Asserting that they feared being transferred to a country where they might be tortured or further detained, they also sought interim relief requiring the Government to provide 30 days’ notice to the district court and to counsel before transferring them from Guantanamo.

CCR attorney, Emi MacLean, said in a press release today:

Today, the court has abdicated its role in safeguarding individuals in U.S. custody from transfers to torture.

Egregiously, the court has done so based upon nothing more than the Executive’s promise not to send an individual to a place where he will be tortured. In the long ugly history of U.S. detention at Guantánamo, the Executive has made repeated hollow promises that “we do not torture.” “Trust the President” is not enough in 2009 to prevent U.S. complicity in torture and to protect an individual’s rights.

Despite its contention that the judiciary has no role in determining the safety of prisoners transferred out of custody, Circuit Judge Ginsbug said the majority decision was based on the Munaf v. Geren Supreme Court decision last year. Ginsberg quickly dismissed the argument regarding release to torture (emphasis added).

Like the detainees here, the petitioners in Munaf asked the district court to enjoin their transfer because they feared they would be tortured in the recipient country. The Court recognized the petitioners’ fear of torture was “of course a matter of serious concern,” but held “in the present context that concern is to be addressed by the political branches, not the judiciary.” Id. at 2225. The context to which the Court referred was one in which – as here – the record documents the policy of the United States not to transfer a detainee to a country where he is likely to be tortured. Id. at 2226. Indeed, as the present record shows, the Government does everything in its power to determine whether a particular country is likely to torture a particular detainee. Decl. of Pierre-Richard Prosper, United States Ambassador-at-Large for War Crimes Issues ¶¶ 4, 7-8, Mar. 8, 2005.

What better evidence could one ask for than the declaration (which one can read here) of Bush and Cheney's War Crimes Ambassador -- not! Pierre-Richard Prosper was a Bush flunky who most recently was a supporter of Mitt Romney, who famously announced during the last election, "My view is we ought to double Guantanamo.".

Moreover, the United States has conducted a program of extraordinary rendition when it routinely sent prisoners to other countries to be tortured, with collaboration from both United Kingdom and U.S. intelligence officers.

CCR presents another instance of U.S. motives in its transfer policies:

CCR’s client Abdul Ra’ouf Qassim was told he could leave Guantánamo years ago. Yet he is Libyan and had nowhere safe to go. The U.S. government twice tried to transfer him to Libya where he would have disappeared into a Libyan jail and been subjected to torture. It was only the court’s intervention which prevented Abdul Ra’ouf’s disappearance.

Like many other Guantánamo detainees, Abdul Ra’ouf has made the difficult “choice” to remain imprisoned in Guantánamo rather than face persecution or torture in his home country because his fear was so strong. He has reached out to the Swiss government to come to his aid and allow him to restart his life.

Writing in partial dissent in the Kiyemba decision, Circuit Judge Griffiths noted that the prisoners had no guarantee under current law and decision that they would not be transferred to another state where, as at Guantanamo, they would be held in "indefinite detention." This would go against the Supreme Court ruling in Boumediene. (Note: this is the same court whose ruling about habeas rights of Guantanamo prisoners was overruled by SCOTUS in Boumediene.)

From the Judge's dissent:

The stakes of unlawful custody, which led the Court in Boumediene to extend habeas protections to the detainees in the first place, are no higher than the stakes of unlawful transfer. Indeed, because an unlawful transfer will deny the detainees any prospect of judicial relief, protecting their habeas rights in this context is vital.

It is significant that the government has submitted sworn declarations assuring the court that any transfer will result in release from U.S. authority. If the government’s representations are accurate, each transfer will be lawful, for in habeas the only relevant judicial inquiry about a transfer is whether it will result in continued detention on behalf of the United States in a place where the writ does not run. But as we recently noted in another case involving the scope of habeas protections for detainees at Guantanamo Bay, a “naked declaration cannot simply resolve the issue.” Al-Odah v. United States....

CCR's MacLean put today's ruling into perspective (emphasis added):

Today’s decision creates a crisis for the sixty men in Guantánamo who cannot return to their home countries and seek humanitarian protection. It is urgent that countries intervene to provide safe haven for these men. Guantánamo can no longer be seen as purely a U.S. problem. It is an international dilemma demanding an international solution. Closing Guantánamo cannot result in disappearing people into countries where they fear torture or persecution. Guantánamo detainees seeking safe haven are from Algeria, Azerbaijan, China, Libya, the Occupied Palestinian Territories, Russia, Syria, Tajikistan, Tunisia, and Uzbekistan.

The past Administration created a lawless zone that damaged our Nation’s reputation and harmed countless lives, and the new Administration promised to return the United States to the rule of law. If President Obama intends to close Guantanamo legally and humanely, he must commit to not transfer people to torture — as a matter of law, not hollow promises.

The blunt truth is that the United States is a torturing country. Covering up for torture, by refusing to prosecute malefactors, as required by the Geneva Conventions, guarantees that the torture apparatus will remain intact. The veil of secrecy thrown over ongoing U.S. and CIA interrogations at Bagram also argues that torture is still going on, despite promises by President Obama. So, too, is the convergent evidence from stated policy of continuing the rendition program, and from the support given to the interrogation guidelines in the current Army Field Manual, which includes abusive use of solitary confinement, sleep deprivation, partial sensory deprivation, use of drugs, manipulation of fears, no ban on stress positions, etc.

There are those -- and they may be in the majority, I don't know -- who believe that taking on the U.S. government over its torture policies would be impolitic, and in any case can wait until other, more pressing business over, say, the economy, is taken care of. This is a terrible mistake, for which all of us will pay, and not least enlisted men and women in the United States military, who will find themselves fair game for the enemy, who have every reason to believe that U.S. torture continues, and that the torturers are above punishment or control. To date, not one captured soldier has been returned alive in Iraq since the Abu Ghraib scandal broke.

Red Cross Report Sparks Scandal on Torture Doctors & Psychologists

The publication of the ICRC full report on CIA abuse of prisoners has rightfully sparked a new media scandal, summarized by Dan Froomkin at the Washington Post, on the collaboration of medical professionals in the U.S. government's torture program. This collaboration has been covered for years by writers and activists like Steven Miles, Stephen Soldz, Katherine Eban, among many others.

Organizations, too, have been active in trying to expose this deadly collaboration, including the ACLU, Human Rights First, and Physicians for Human Rights. What follows is a press release from PHR, responding to the new ICRC revelations.

For Immediate Release: April 7, 2009

Contact: Jonathan Hutson, jhutson@phrusa.org, Cell: 857-919-5130

In Wake of ICRC Report, Health Professionals Must Be Held Accountable for Torture

Physicians for Human Rights responds to the publication of a long-secret report by International Committee of the Red Cross which concludes that health professionals who participated in interrogations in CIA secret detention centers committed gross violations of medical ethics and in some cases participated in torture.

(Cambridge, MA) The full disclosure of a confidential International Committee of the Red Cross (ICRC) report on CIA treatment of detainees is confirmation of what Physicians for Human Rights (PHR) has been alleging for years. Health professionals violated ethical duties by participating in the torture and abuse of detainees in US custody. PHR has long demanded a full investigation into the role health professionals played in detainee treatment. PHR again calls upon health professional associations to support a non-partisan commission of inquiry.

“It is time for the American Medical Association, the American Psychological Association, and others to demand a nonpartisan commission to investigate these crimes,” said Frank Donaghue, Chief Executive Officer of PHR. “The associations must sanction any of their membership found to have violated their professional ethics.”

“The Bush Administration weaponized medicine by using health professionals to break the bodies and minds of detainees,” stated John Bradshaw, PHR’s Washington Director. “Congress must act to restore medical ethics by finally authorizing a non-partisan commission to probe these crimes.”

PHR helped create the ethical prohibitions against health professional participation in national security interrogations. Consistent with previous PHR findings, the ICRC report concludes that “the interrogation process is contrary to international law and the participation of health personnel in such a process is contrary to international standards of medical ethics.” The ICRC report also finds that “their primary purpose appears to have been to serve the interrogation process, and not the patient. In so doing the health personnel have condoned, and participated in ill-treatment.”

In a report released last year, Broken Laws, Broken Lives: Medical Evidence of Torture by US Personnel and Its Impact, former detainees medically evaluated by PHR reported similar instances of medical complicity in torture. Hafez, an Iraqi detainee who was held at Abu Ghraib, reports that his arm was dislocated during an abusive interrogation. He states that an individual, whom he believed was a doctor, put his arm back in place and told the interrogators to “continue”.

Since 2005, PHR has documented the systematic use of psychological torture by the US during its interrogations of suspected terrorists at Guantanamo, in Iraq and Afghanistan, and elsewhere. Additionally, PHR has worked to mobilize the health professional community, particularly the professional associations, such as the American Medical Association, to adopt strong ethical prohibitions against direct participation in interrogations. PHR is a 1997 Nobel Peace Prize laureate.

Readers interested in more information about the role doctors and other medical or psychological professionals have played as part in the U.S. torture gulag will find Steven Miles just released, second edition of his well-received book, Oath Betrayed: America's Torture Doctors, an amazing compendium of information and analysis.

The Militarization of Humanitarian Aid in Afghanistan

Over 11 international aid agencies, including Oxfam, ActionAid, CARE Afghanistan and Save the Children UK, have issued a report, warning that the U.S. "surge" in Afghanistan is endangering the population there.

In 2008 there were 2,100 civilian casualties, a 30% increase on the previous year. Although 55% of civilian deaths were caused by militants, there are serious concerns about fatalities caused by air strikes from pro-government forces, which increased by 70% to 552.

Matt Waldman, head of policy for Oxfam International on Afghanistan, said: "The troop surge will fail to achieve greater overall security and stability unless the military prioritise the protection of Afghan civilians.

"Despite taking steps to reduce civilian casualties, and repeated calls for restraint, too many military operations by foreign troops involve excessive force, loss of life and damage to property. This is causing anger, fear and resentment among Afghans, and is steadily eroding popular support for the international presence. "

The report singled out for condemnation the militarization of relief aid, endangering the traditional neutrality of work by non-governmental agencies.

The report warns the military are blurring the distinction between aid workers and soldiers by doing extensive humanitarian and assistance work for counter-insurgency purposes, and by using unmarked white vehicles, which are conventionally only used by the UN and aid agencies. This undermines local perceptions of the independence and impartiality of aid agencies and therefore increases the risk to aid workers, and threatens to reduce the areas in which they can safely work.

The agencies also warn that the increasing distortion of humanitarian and development assistance for military aims could undermine long-term stability.

Agencies say that the Provincial Reconstruction Teams (PRTs), the military-led security and reconstruction teams, continue to receive massive amounts of funding: the annual PRT budget for the United States – over $200 million – exceeds the Afghan national budgets for health and education combined. The agencies recommend a phase-out of militarised aid and a substantial increase in development and humanitarian funding for civilian institutions and organisations.

We saw the issue of the PRTs raised when Senator Patrick Leahy called Vice Admiral (ret.) Lee Gunn as a witness at his hearing last month on the issue of calling for a "Truth Commission" to investigate Bush Administration torture and other crimes. I noted then the dubious role of the PRTs:

Vice Admiral (ret.) Lee Gunn is presented to the committee as President of the American Security Project. He also is president of their Institute of Public Research at CNA Corporation, a federally funded research and development center in Washington, D.C....

But Gunn's association with CNA bespeaks even more troubling associations. Down the hall from IPR, so to speak, at CNA’s Stability and Development Program, part of CNA Strategic Studies, we find some interesting connections with major counterinsurgency operations in Iraq and Afghanistan.

Dr. Carter Malkasian, formerly assigned to the I Marine Expeditionary Force (I MEF) as an advisor on counterinsurgency, directs the Stability and Development Program, which focuses on counterinsurgency, irregular warfare, and post-conflict reconstruction. The team provides objective, analytic perspectives—grounded in an understanding of actual operations—to support decision-makers charged with planning and conducting security and development operations.

The range of issues includes: insurgency and counterinsurgency, ethnic conflict, development of indigenous forces, economic development of war-torn states, “Phase IV” reconstruction efforts, and the establishment of political institutions.

The team most recently spent time on the ground in Afghanistan advising Provincial Reconstruction Teams (PRTs).

What are PRTs?

The Provincial Reconstruction Teams (PRTs) are “non-kinetic” operations carried out jointly by small number of lightly armed military personnel and civilian staff from the diplomatic community and development agencies to promote governance, security and reconstruction throughout the post-9.11 Afghanistan and Iraq. PRTs can be characterized in two ways: one as a miniature of multidimensional peacekeeping operations or “peacekeeping-lite,”and the other as an extended civil-military operation center (CMOC) or “super-CMOC.”

And the PRTs have some questionable activities, beyond humanitarian work:

The PRTs have critics in the international aid community. A recent analysis from the think tank Overseas Development Institute, said “In Afghanistan, Provincial Reconstruction Teams (PRTs) were perceived as blurring the lines between humanitarian and military action.”

Amnesty International ran across some shady operations conducted by some of the PRTs that involved torture:

Amnesty International is concerned that ISAF troops from New Zealand operating in Afghanistan and particularly the Provincial Reconstruction Team (PRT) could be involved in transferring detainees to Afghan security forces....

“The NZ PRT (107 personnel as of October 2007) Bamyan is tasked with maintaining security in Bamyan Province. It does this by conducting frequent presence patrols throughout the province.”, [sic] may apprehend and transfer detainees,” says Amnesty International Spokesperson Gary Reese.

In March this year, Amnesty International raised our concerns to Hon Phil Goff, Minister of Defence, that the 50-70 detainees handed over to U.S. forces by the NZ SAS could be subject to torture at Guantanamo Bay or other secret detention centres in a third country (through the US practice of ‘extraordinary rendition’).

What happens to those transferred from PRTs operating in Afghanistan to Afghan security forces? They are almost certainly tortured.

The public, starved of any real investigative or substantive reporting from the U.S. wars abroad, are unaware of how these wars are conducted. Reporting at home concentrates on buzzwords like "surge", and concentrate on the number of U.S. troops deployed, or U.S. casualties. Almost no one really knows how the war is actually conducted (although some may be familiar with the use of Predator drones used to assassinate opponents, and kill many civilians in the process).

The U.S. wars of conquest and control, mislabeled a "war on terror," have tarnished everything they touched that could be decent or true. Torture, assassination, lies, cover-up, mass murder, and now the transformation of humanitarian aid into a cover for counter-insurgency. Truly this is a very sick country, with a maniacal ruling elite who loves their technology of destruction, and finds nothing sacred in their quest to rule over whatever they want, and whomever stands in their way.

Full ICRC Report on CIA Prisoner Abuse Now Published Online

The New York Review of Books has now posted a full version of the "strictly confidential" February 2007 report by the International Committee of the Red Cross on CIA torture of "high-value detainees." The report was leaked in part by journalist Mark Danner, who wrote a review of the report in April 9 edition of the NYRB.

I subsequently reviewed Danner's article here at Invictus.

Danner makes the connections which I and others have made between these techniques and the study of torture and "brainwashing" undertaken by the CIA and the military over 50 years ago, which culminated in the codification of such procedures in the CIA counterintelligence interrogation KUBARK manual of the early 1960s.

The NY Review article also confirms the ABC news report of approximately a year ago that reported how each variation and application of the torture techniques was vetted by the White House.

The full ICRC report has a remarkable section on the participation of medical providers at the CIA interrogations. Joby Warrick and Julie Tate have an article posted at the Washington Post right now. According to the Post, the ICRC found the "participation [of medical officers] in some of the more harsh episodes to be a severe breach of medical ethics."

Medical officers who oversaw interrogations of terrorism suspects in CIA secret prisons committed gross violations of medical ethics and in some cases essentially participated in torture, the International Committee of the Red Cross concluded in a confidential report that labeled the CIA program "inhuman."

Health personnel offered supervision and even assistance as suspected al-Qaeda operatives were beaten, deprived of food, exposed to temperature extremes and subjected to waterboarding, the relief agency said in the 2007 report, a copy of which was posted on a magazine Web site yesterday. The report quoted one medical official as telling a detainee: "I look after your body only because we need you for information."

The news comes at the same time as highly regarded medical ethicist Steven Miles has released his second edition of his book documenting medical complicity in Bush's torture program, Oath Betrayed: America's Torture Doctors, which I will be reviewing here in the next week or so. This new edition "shows how interrogation psychologists may have moved from information-gathering to coercive experiments, warning all of us about a new direction in U.S. policy and military medicine--a direction that not so long ago was unthinkable."

Torture News Roundup: DoD to Jail Gitmo Attorney?

In a week chock-full of important developments in the fight against torture, none stands out as more outrageous than the actions of Robert Gates' Department of Defense, threatening two attorneys for former Guantanamo prisoner and U.S./UK torture victim, Binyam Mohamed, with jail. Their crime? Writing a letter to Barack Obama and following security procedures!

Before we get there, let's summarize the week:

A federal judge ruled against President Obama and Attorney General Holder's contention that no "war on terror" prisoners held at Bagram prison in Afghanistan had any Constitutional rights.

Colin Powell told Rachael Maddow at MSNBC that he wasn't sure that waterboarding "would be considered criminal."

Andy Worthington ran a series explaining how Britain's draconian "control orders" have created a virtual, "second Guantanamo".

The fight over release of Bush Administration memos countenancing "harsh interrogation techniques" continues inside the Obama White House.

All this and more, in this Sunday's Torture Roundup.

Lawyers from Reprieve face a jail sentence after officials from the US department of defence had the nerve to complain about their 'unprofessional conduct'

On February 11, I posted a well-read diary at Daily Kos that described news reports on how Clive Stafford Smith, acting in his role as an attorney for then-Guantanamo detainee Binyam Mohamed, sent a letter to Barack Obama [PDF] detailing torture techniques inflicted upon his client. A Pentagon review team then censored all the details of this torture from Smith's letter. (See Breaking: Pentagon Hiding Torture Evidence from Obama.)

Now Mohamed's attorneys face up to six months in jail, accused by Robert Gates' Department of Defense of breaking the rules for Guanatanamo attorneys and of "unprofessional conduct" in the writing of the letter to Obama.

From the Guardian article:

Clive Stafford Smith, director of legal charity Reprieve, and his colleague Ahmed Ghappour have been summoned to appear before a Washington court on May 11 after a complaint was made by the privilege review team.

Stafford Smith had written to the president after judges in the UK ruled against the release of US evidence detailing Mohamed's alleged torture at Guantánamo....

He and Gappour submitted the memo to the privilege team for clearance but the memo was redacted to just the title, leaving the president unable to read it. Stafford Smith included the redacted copy of the memo in his letter to illustrate the extent to which it had been censored. He described it as a "bizarre reality"....

The privilege team argue that by releasing the redacted memo Reprieve has breached the rules that govern Guantánamo lawyers and have made a complaint to the court of "unprofessional conduct".

Stafford Smith described their actions as intimidation, saying the complaint "doesn't even specify the rule supposedly breached".

This is totally unacceptable governmental conduct against a whistleblower and attorney working for human rights and against torture. He and his colleagues have broken no law. In fact, they followed the law and are now being punished for it. And this from a government that tried to coerce a pledge of silence from their client as a condition of his release from Guantanamo.

If you're feeling sufficiently outraged, you could write directly to the White House on this.

Meanwhile, Michael Isikoff at Newsweek is reporting that a "fierce internal battle within the White House over the disclosure of internal Justice Department interrogation memos is shaping up as a major test of the Obama administration's commitment to opening up government files about Bush-era counterterrorism policy."

As reported by NEWSWEEK, the White House last month had accepted a recommendation from Attorney General Eric Holder to declassify and publicly release three 2005 memos that graphically describe harsh interrogation techniques approved for the CIA to use against Al Qaeda suspects. But after the story, U.S. intelligence officials, led by senior national-security aide John Brennan, mounted an intense campaign to get the decision reversed, according to a senior administration official familiar with the debate. "Holy hell has broken loose over this," said the official, who asked not to be identified because of political sensitivities.

Brennan is a former senior CIA official who was once considered by Obama for agency director but withdrew his name late last year after public criticism that he was too close to past officials involved in Bush administration decisions. Brennan, who now oversees intelligence issues at the National Security Council, argued that release of the memos could embarrass foreign intelligence services who cooperated with the CIA, either by participating in overseas "extraordinary renditions" of high-level detainees or housing them in overseas "black site" prisons.

According to Isikoff, Brennan has gotten the backing of CIA Director Leon Panetta, and the "final decision" re release of the controversial memos will be made by President Barack Obama.

The ACLU has agreed to the two-week extension for the government to file their final response in a Freedom of Information Act lawsuit by the American Civil Liberties Union seeking release of the memos.

Federal Judge Rules Against Obama's Ban on Habeas at Bagram

Charlie Savage at The New York Times is reporting that a federal judge at the D.C. Federal District Court has ruled that some prisoners at Bagram prison in Afghanistan "have a right to challenge their imprisonment, dealing a blow to government efforts to detain terrorism suspects for extended periods without court oversight."

The ruling only applies to prisoners captured outside Afghanistan, but it deals a blow to the Obama administration's intent to keep Bagram as a site for detention for "terrorism suspects" caught outside Iraq or Afghanistan.

As the NYT puts it (link added):

The administration had sought to preserve Bagram as a haven where it could detain terrorism suspects beyond the reach of American courts, telling Judge Bates in February that it agreed with the Bush administration’s view that courts had no jurisdiction over detainees there.

Judge Bates, who was appointed by President George W. Bush in 2001, was not persuaded. He said transferring captured terrorism suspects to the prison inside Afghanistan and claiming they were beyond the jurisdiction of American courts “resurrects the same specter of limitless executive power the Supreme Court sought to guard against” in its 2008 ruling that Guantánamo prisoners have a right to habeas corpus.

Torture Scandal in Great Britain

The UK Guardian is reporting

MPs are to undertake the most far-reaching inquiry into Britain's role in human rights abuses in decades as allegations mount to suggest that officials repeatedly breached international law.

The Commons foreign affairs select committee will examine Britain's involvement in the detention, transfer and interrogation of prisoners held during the so-called war on terror. Among the matters to be examined later in the year are allegations, reported in the Guardian over the past two years, that British intelligence officers colluded in the torture of Britons held in Pakistan and Egypt.

David Miliband, the foreign secretary, will give evidence to the inquiry although he and Jacqui Smith, the home secretary, refused, earlier this year, to appear before parliament's joint committee on human rights, which is looking into reports that British officials were complicit in torture.

Journalist Andy Worthington also reports on Parliamentary investigations into British complicity in extraordinary rendition and torture.

On Monday March 30, in a committee room in the House of Commons, Diane Abbott MP chaired a meeting entitled, “Britain’s Guantánamo? The use of secret evidence and evidence based on torture in the UK courts,” to discuss the stories of some of the men held as “terror suspects” on the basis of secret evidence, and to work out how to persuade the government to change its policies. A detailed report of the meeting is available here, and the profiles of five prisoners are available by following this link...

One of the cases Worthington highlights is that of a 39-year-old Algerian national known only as "Detainee Y":

They call me Y. But I am more than a letter. I am a man....

I came to the UK because of its impressive human rights record. Well, that’s what everyone said. I had spoken out against human rights abuses at home and got into trouble for it, so I had to leave. Maybe I should have been like everyone else and not said anything. What would you have done?

Now I have a death sentence waiting for me in Algeria.

I was living in London, as a refugee, rebuilding my life, recovering from torture and finally overcoming the demons it leaves behind.

Things were going well, and then suddenly my life turned upside down. First I was arrested as part of the “ricin plot.” I spent 27 months in Belmarsh. There never was any ricin.

I was acquitted in 2005....

After 7/7 they came for me again. I had nothing to do with it. I was arrested, served with a deportation order to Algeria and taken to Long Lartin prison. No charge. No trial. I was there for 29 months.

And since last July I have been again on bail....

I feel watched all the time. “They” go everywhere I go. I don’t know what they want or what they are looking for....

I survived torture. It was some years ago, back in Algeria. It’s not an easy thing to go through. I wish none of you ever suffer it. But torture, it has to end. What is going on now has no end. This is slow torture.

My father died a few months ago, back home. It was a very hard time. I was all alone with my grief. I felt useless and worthless and hopeless....

Well, what else can I say? I feel so tired. I just want to stop thinking. I want to wake from this nightmare. All I have are dreams and hopes and wishes, but it’s hard to keep hold of these.

I just want to sleep.

I have to stay in the house for 20 hours a day. I wear a tag. It makes me feel like a slave.

I am not allowed outside my boundaries. I can’t go to the town centre, but I can go to two cemeteries if I want....

Why am I living like this? Why did I spend 56 months in prison? Why do they want to deport me to Algeria? Why do they say I’m a threat to national security? I am here like this today because of secret evidence.

Detainee Y is a victim of Britain's notorious "control orders." As explained in this article from the Guardian, control orders, or were introduced as part of Britain's Prevention of Terrorism Act 2005. They have created a virtual "Second Guantanamo" inside of Great Britain's borders:

What are control orders?

They enable the home secretary to impose a wide range of restrictions on any person, based on intelligence information, she suspects of involvement in terrorism-related activity, whether a UK national or not, and whether the terrorist activity is domestic or international.

What do these restrictions include?

Virtual house arrest, including specifying where and with whom subjects can live and placing them under curfew for up to 13 hours a day; limiting them to travelling within a specific geographical zone – for example, one mile of their home; controlling their access to telephones and banning access to the internet; dictating who they can meet or communicate with, and what occupation or studies they can undertake; proscribing where they can travel and what places of worship they can attend; electronic tagging; foreign travel bans; and daily reporting to and monitoring by the police.

The home secretary also has the power to add new restrictions or obligations, or vary them, as she sees fit.

Andy Worthington comments on Britain's "control orders" and other antidemocratic "antiterrorism" laws:

In the UK, since December 2001, the British government has, at various times, held around 70 men without charge or trial, refusing to try them as criminal suspects in recognized courts. The policy began with the imprisonment of 17 men in Belmarsh high-security prison, but when, after three years, the Law Lords ruled that their imprisonment was in contravention of the Human Rights Act, the government responded by introducing control orders and deportation bail, both of which involve draconian restrictions that amount to house arrest. Throughout this whole period, the government has justified the men’s detention through the use of secret evidence that the prisoners — known as “detainees” — are not allowed to see.

Another similarity concerns attempts by both the British and American governments to bypass their obligations under the UN Convention Against Torture — which prevents the return of foreign nationals to countries where they face the risk of torture — by reaching diplomatic agreements with various dictatorships in North Africa and the Middle East. These purport to guarantee that repatriated prisoners will be treated humanely, but in reality they have proved worthless.

British Rendition and Torture Pre-9/11?

“All you need to know is that there was a ‘before 9/11’ and there was an ‘after9/11.’ After 9/11, the gloves came off.” -- Cofer Black, as Director of the CIA's Counterterrorist Center

Britain's partnership with the United States in use of both rendition and torture precedes even the 9/11 crisis, which both governments hypocritically cite as the impetus for their draconian and illegal policies of detention and torture. According to an article at Cageprisoners, looking at increasing evidence that British intelligence agencies were involved in torture:

The Daily Telegraph reported last week that MI5 and MI6 had identified 15 cases where their officers had alerted senior personnel to possible mistreatment but no further action was taken...

Asim Qureshi of Cage Prisoners... told the Daily Telegraph: "At first we thought these were cases of individual abuses but the more we saw and the more testimony we heard, the more we realised there was pattern.

"We were seeing interviews by MI5 and MI6 alongside the use of torture by other countries. This has been very, very systematic and that is what concerns us most. There has been a policy to keep prisoners beyond the reach of law and turn a blind eye to torture.

"We believe that the government is going to pass off the case of Binyam Mohamed as an isolated incident and use witness B [the officer allegedly involved] as a scapegoat but we believe it is important to put this in the context of what has been happening in the last seven or eight years."

The Cageprisoners report, "Fabricating Terrorism II", just released, describes one case of rendition and torture that predates 9/11 (emphasis added).

CASE 1 – FARID HILALI
Nationality: Moroccan/ British Resident
History/Background: Farid was initially detained in 1999 while in UAE. There he was subjected to torture and interrogation on behalf of the British security services and was later sent to Morocco where this treatment continued. On his release he came to the UK and was arrested on immigration offences, but he was re-arrested in June when Spain issued a European arrest warrant to extradite him for alleged terror offences, and in particular involvement in 9/11. The case against Hilali seems to be vague and circumstantial, and entirely reliant on mobile phone communications data and intercept evidence.

And, Back at Guantanamo...

U.S. Navy Lt.-Cmdr. William Kuebler, a military attorney who has represented Omar Khadr, a Guantanmo prisoner who was first arrested as a 15-year-old in Afghanistan and ultimately brought to Gitmo, has been fired from Khadr's defense team and reassigned.

In his two years on the case, Commander Kuebler campaigned for Mr. Khadr’s return to Canada to short-circuit a military tribunal system that he described as unfair. Like all Guantánamo prosecutions, the case is suspended pending a review of policies by the Obama administration.

The chief defense counsel at Guantánamo, Col. Peter Masciola of the Air Force, concluded that Commander Kuebler’s removal was necessary to pursue “a client-centered representation,” according to a statement from his office. Colonel Masciola did not immediately respond to a request for further details....

In February, Commander Kuebler was blocked from traveling to meet Mr. Khadr at Guantánamo amid the internal investigation, which he said was related to his criticism of Colonel Masciola’s management.

He complained about Colonel Masciola’s cooperation with the review of Guantánamo cases that was intended to decide whether the cases should be tried in civilian or military courts or some combination of the two.

“I don’t want to make it easier for the government to prosecute my client,” he said at the time. “I want my client to be released.”

Colin Powell reiterated, in an interview with Rachael Maddow this week, his long-time belief that Guantanamo be closed. But when Maddow pressed Powell on his participation in White House "Prinicpals" meetings that met in 2002-2003 to approve torture of prisoners held by the CIA, Powell got quite defensive. He seemed to forget that new CIA Director Leon Panetta told Congress only a few months ago that the government considered waterboarding to be torture. From the Powell-Maddow interview:

RACHEL: On the issue of intelligence—tainted evidence and those things—were you ever present at meetings at which the interrogation of prisoners, like Abu Zubaida, other prisoners in those early days, where the interrogation was directed? Where specific interrogation techniques were approved. It has been reported on a couple of different sources that there were Principals Meetings, which you would have typically been there, where interrogations were almost play-by-play discussed.

POWELL: They were not play-by-play discussed but there were conversations at a senior level as to what could be done with respect to interrogation. I cannot go further because I don't have knowledge of all the meetings that took place or what was discussed at each of those meetings and I think it's going to have to be the written record of those meetings that will determine whether anything improper took place....

MADDOW: If there was a meeting, though, at which senior officials were saying, were discussing and giving the approval for sleep deprivation, stress positions, water boarding, were those officials committing crimes when they were giving that authorization?

POWELL: You’re asking me a legal question. I mean I don't know that any of these items would be considered criminal. And I will wait for whatever investigations that the government or the Congress intends to pursue with this.

Both the Powell interview and the firing of Kuebler took place in the context of a flap over whether or not Senator Patrick Leahy has abandoned hope for Truth Commission on torture.

Other Torture News

China to Address Torture of Prisoners

Since January, five cases of young men dying in policy custody have become public. When police in the Southwestern province of Yunnan explained the jail death of Li Qiaomin by saying he had injured himself fatally during a game of hide-and-seek, this explanation triggered a burst of outrage on blogs and online discussion forums, forcing local authorities to launch a propaganda offensive and a new investigation.

Since then, state media have flooded readers with a wave of propaganda that suggested the government was seeking solutions to the problem prisoner abuse.

State media reported that prisoners in detention centres in Beijing would be given cards with contact information of the local prosecutor to allow them to blow the whistle on detention officers if they were mistreated. Representatives of other departments such as the justice ministry proposed to take supervision of the detention facilities away from the police in order to separate investigation powers and direct responsibility for the prisoners.

Seton Hall Law Students Reveal That Generals Knew Guantanamo Detainees Were Tortured

General Schmidt's Investigation Uncovered Numerous Abuses Which Were Omitted from Both His Report and His Congressional Testimony

Today Seton Hall Law delivered a report establishing that military officials at the highest levels were aware of the abusive interrogation techniques employed at the detention camp at Guantánamo Bay (GTMO), and misled Congress during testimony. In addition, FBI personnel reported that the information obtained from inhumane interrogations was unreliable.

Professor Mark Denbeaux, Director of the Seton Hall Law Center for Policy and Research, commented on the findings: "Who knew about the torture at GTMO? Turns out they all did. It's not news that the interrogators were torturing and abusing detainees. We've got FBI reports attesting to this. But now we've discovered that the highest levels knew about the torture and abuse, and covered it up.

Conyers Wants Holder to Appoint a Special Counsel to Probe Bush Crimes

“The Attorney General should appoint a Special Counsel to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance,” Conyers’s report says. "In this regard, the report firmly rejects the notion that we should move on from these matters"....

However, Conyers has not formally asked the Justice Department to appoint a special counsel as he had last year when he and 55 other House Democrats signed a letter sent to Attorney General Michael Mukasey seeking a special prosecutor ....

National Geographic airs a documentary tonight (9 PM both Eastern and Pacific time) , Explorer: Inside Guantanamo. This film is unreviewed by me, but the blurb says:

A symbol of freedom protected or freedom tragically betrayed, the controversies of Guantanamo embody the thorny issues of America’s fight against an enemy that wears no uniform, has no address and will declare no armistice, and an administrations battle to keep prisoners beyond the reach of due process in American courts. The goings-on inside the wire encircling this highly classified camp have been a closely held government secret until now. For the first time, National Geographic exclusively captures day-to-day life in the most famous prison in the world exploring the ongoing daily struggle between the guard force of dedicated young military personnel and the equally dedicated detainees, many of whom are still in legal limbo after being held years.

Second Guantanamo Prisoner to be released by Obama Administration

Ayman Saeed Batarfi, a 38-year old Yemeni doctor will be the second prisoner from Guantanamo to be released. He was first detained in Afghanistan in 2001, where his lawyers had indicated he had been on a humanitarian mission.

Bartafi was initially held at Bagram Airforce Base and then transferred to the infamous Guantanamo Bay Prison....

What is most interesting about Batarfi's release is that we are not being told where he's going. According to an AP report, Department of Justice spokesman Dan Boyd indicated that Batarfi would be transferred to 'an appropriate destination country in a manner that is consistent with the national security and foreign policy interests of the United States and the interests of justice'.

What exactly does this mean? If this were happening during the Bush administration, one could interpret the above statement as another one of their famous extraordinary renditions....

It also makes one wonder if Batarfi was subjected to the same type of 'exit interview' as his British counterpart, whereby he was asked not to reveal that he was tortured if he were released.

Bizarre Story of the Week:

Miss Universe and Miss USA tour Guantanamo

Miss Universe Dayana Mendoza says the trip was ‘an incredible experience’

Historical Article of the Week:

THE CIA AND THE MEDIA by Carl Bernstein

This 25,000 word landmark article, first published in Rolling Stone magazine in 1977, has been "reprinted" and posted on the Internet in bastardized and censored versions over the years. Bernstein's posting of the full article online is an important event, one that, for reasons evident from reading the article itself, has been ignored by the mainstream media.

What follows are some selections from the piece:

The CIA’s use of the American news media has been much more extensive than Agency officials have acknowledged publicly or in closed sessions with members of Congress. The general outlines of what happened are indisputable; the specifics are harder to come by. CIA sources hint that a particular journalist was trafficking all over Eastern Europe for the Agency; the journalist says no, he just had lunch with the station chief. CIA sources say flatly that a well‑known ABC correspondent worked for the Agency through 1973; they refuse to identify him. A high‑level CIA official with a prodigious memory says that the New York Times provided cover for about ten CIA operatives between 1950 and 1966; he does not know who they were, or who in the newspaper’s management made the arrangements....

During the 1976 investigation of the CIA by the Senate Intelligence Committee, chaired by Senator Frank Church, the dimensions of the Agency’s involvement with the press became apparent to several members of the panel, as well as to two or three investigators on the staff. But top officials of the CIA, including former directors William Colby and George Bush, persuaded the committee to restrict its inquiry into the matter and to deliberately misrepresent the actual scope of the activities in its final report. The multivolume report contains nine pages in which the use of journalists is discussed in deliberately vague and sometimes misleading terms. It makes no mention of the actual number of journalists who undertook covert tasks for the CIA. Nor does it adequately describe the role played by newspaper and broadcast executives in cooperating with the Agency....

There are perhaps a dozen well known columnists and broadcast commentators whose relationships with the CIA go far beyond those normally maintained between reporters and their sources. They are referred to at the Agency as “known assets” and can be counted on to perform a variety of undercover tasks; they are considered receptive to the Agency’s point of view on various subjects....

DESPITE THE EVIDENCE OF WIDESPREAD CIA USE OF journalists, the Senate Intelligence Committee and its staff decided against questioning any of the reporters, editors, publishers or broadcast executives whose relationships with the Agency are detailed in CIA files.

According to sources in the Senate and the Agency, the use of journalists was one of two areas of inquiry which the CIA went to extraordinary lengths to curtail. The other was the Agency’s continuing and extensive use of academics for recruitment and information gathering purposes.

All photos in the Public Domain. Thanks for this edition of WTR to Patriot Daily News Clearinghouse and Andy Worthington.

Federal Judge Rules Against Obama's Ban on Habeas at Bagram

Charlie Savage at The New York Times is reporting that a federal judge at the D.C. Federal District Court has ruled that some prisoners at Bagram prison in Afghanistan "have a right to challenge their imprisonment, dealing a blow to government efforts to detain terrorism suspects for extended periods without court oversight." (H/T Moon of Alabama)

The ruling only applies to prisoners captured outside Afghanistan, but it deals a blow to the Obama administration's intent to keep Bagram as a site for detention for "terrorism suspects" caught outside Iraq or Afghanistan. As befits a regular gulag-style prison, Obama's administration, like his predecessor, refuses to give an account of who among the presumed many hundreds is imprisoned there. They claim that the ruling will only affect about a dozen prisoners, but how can they be believed?

As the NYT puts it (link added):

The administration had sought to preserve Bagram as a haven where it could detain terrorism suspects beyond the reach of American courts, telling Judge Bates in February that it agreed with the Bush administration’s view that courts had no jurisdiction over detainees there.

Judge Bates, who was appointed by President George W. Bush in 2001, was not persuaded. He said transferring captured terrorism suspects to the prison inside Afghanistan and claiming they were beyond the jurisdiction of American courts “resurrects the same specter of limitless executive power the Supreme Court sought to guard against” in its 2008 ruling that Guantánamo prisoners have a right to habeas corpus.

The three prisoners, who, pending the probable government appeal of the decision, won their right to petition a civilian court for their release via the right of habeas corpus, have been locked up in the "spartan" Bagram prison for over six years without a trial. All were captured or apprehended outside Afghanistan and then rendered to Bagram, from which reports of torture and prisoner deaths have emanated for years now.

Bagram prison was also identified as the site where ghost prisoner Aafia Siddiqui was held.

Judge Bates, applying the six-part test the Supreme Court described in its Boumediene ruling last year, called his ruling "narrow." A former Bush administration associate counsel said the decision "gravely undermined" the U.S. in its ability to detain "enemy combatants" in the "war on terror."

But I think the defendants' attorneys said it best:

Tina Foster, the executive director of the International Justice Network, which is representing the four Bagram detainees, praised Judge Bates’s decision as “a very good day for the Constitution and the rule of law.”

Ms. Foster said that the Bagram ruling meant that changes to the Bush detention policies would go beyond merely closing Guantánamo and extend “to any place where the United States seeks to hold individuals in a legal black hole.”

Torture Investigations? Leahy Bails, Powell Takes a Dive

Two events in the past two days have captured the inert, Alice-in-Wonderland nature of the U.S.'s struggle to deal with the revelations surrounding this government's use of torture. Today, it was reported that Senator Leahy had decided that lacking any GOP support for his "Truth Commission" on torture, his proposed investigation was dead in the water. But more on that in a moment.

One American television journalist who is not letting the politicians off the hook when it comes to accountability for torture is Rachael Maddow over at MSNBC. She interviewed Colin Powell yesterday regarding his knowledge of Bush Administration approval of torture. (H/T to colleague, Brad O.)

She noted that Powell was, along with Condoleeza Rice, John Ashcroft, Dick Cheney, Douglas Feith, Donald Rumsfeld and George Tenet, a participant in White House "Principals" meetings that discussed the interrogation methods of prisoners such as Abu Zubaydah and Khalid Sheik Mohammed. The approved techniques, which included use of stress positions, sleep deprivation, waterboarding and other abuses, are widely considered to be torture, and were labelled as such in a recently leaked report by the International Committee of the Red Cross. (The Principals story was first reported by ABC News.)

What follows is both the video and portions of the Maddow-Powell transcript, with interspersed commentary. Bold emphases are editorial additions.

Visit msnbc.com for Breaking News, World News, and News about the Economy

As those who watch the interview can see, Maddow is not afraid to go after Powell's role in the torture planning:

RACHEL: On the issue of intelligence—tainted evidence and those things—were you ever present at meetings at which the interrogation of prisoners, like Abu Zubaida, other prisoners in those early days, where the interrogation was directed? Where specific interrogation techniques were approved. It has been reported on a couple of different sources that there were Principals Meetings, which you would have typically been there, where interrogations were almost play-by-play discussed.

POWELL: They were not play-by-play discussed but there were conversations at a senior level as to what could be done with respect to interrogation. I cannot go further because I don't have knowledge of all the meetings that took place or what was discussed at each of those meetings and I think it's going to have to be the written record of those meetings that will determine whether anything improper took place.

During the interview, Powell keeps returning to the themes of his lack of knowledge, and almost a plea to look to "the written record of those meetings," a record that to date no one has seen. I'm presuming that Powell has seen such a record -- which could easily have been sanitized -- and whatever is there is not something he feels legally endangered by.

Maddow continues:

MADDOW: If there was a meeting, though, at which senior officials were saying, were discussing and giving the approval for sleep deprivation, stress positions, water boarding, were those officials committing crimes when they were giving that authorization?

POWELL: You’re asking me a legal question. I mean I don't know that any of these items would be considered criminal. And I will wait for whatever investigations that the government or the Congress intends to pursue with this.

Powell doesn't know now that waterboarding "would be considered criminal"? That's not what he thought, apparently, back in September 2006, when he wrote to Senator McCain opposing the Bush proposals that would later be incorporated into the Military Commissions, which would "“permit use of hypothermia, threats of violence to the detainee and his family, stress positions, ‘long-time standing,’ prolonged sleep deprivation, and possibly waterboarding.”

Powell said then:

Dear Senator McCain,

I just returned to town and learned about the debate taking place in Congress to redefine Common Article 3 of the Geneva Convention. I do not support such a step and believe it would be inconsistent with the McCain amendment on torture which I supported last year.

Of course, this was before the ABC revelations and the dawning possibility that Powell could stand where once Lt. Calley stood, on trial for war crimes.

The MSNBC interview continued:

MADDOW: ... Do you feel like you have enough information to know if people were waterboarded? Is that torture?

POWELL: I will let those who are making the legal determination of that make that judgment....

MADDOW: I guess have to ask that -— just a broader question about whether or not you have regrets, not about what the Bush administration did broadly in the years that you were Secretary of State, but the decisions that you participated in about interrogation, about torture, about the other things.

POWELL: We had no meetings on torture. It’s constantly said that the meetings—I had an issue with this -— we had meetings on what torture to administer. What I recall, the meetings I was in —- I was not in all of the meetings and I was not an author of many of the memos that have been written (and some have come out, some have not come out). The only meetings I recall were where we talked about what is it we can do with respect to trying to get information from individuals who were in our custody. And I will just have to wait until the full written record is available and has been examined.

MADDOW: ... There is also the policy implications that you've been so eloquent about, in terms of what the implications are of these policies for the U.S. abroad in a continuing way....

If specific interrogation techniques were being approved by people at the political level in the Cabinet, it doesn't -— the legal niceties of it almost become less important.

POWELL: I don't know where these things were being approved at a political level.

MADDOW: If there was a Principals Meeting at the White House to discuss interrogation techniques?

POWELL: It does not mean it was approved, anything was approved, at a meeting.

MADDOW: OK.

POWELL: It depends on did the meeting end up in a conclusion or was it just a briefing that then went to others to make a final decision on and to document. And so it is a legal issue and I think we have to be very careful and I have to be very careful because I don't want to be seen as implicating anybody or accusing anybody because I don't have the complete record on this. And that complete record I think in due course will come out.

While Gen. Powell was lawyering up with Rachael Maddow, Vermont journalist Charlotte Dennett broke the story over at Consortium News that Senator Patrick Leahy told a meeting of constituents that lacking GOP bipartisan support for his proposed investigation into Bush Administration torture that “it’s not going to happen.”

As Lisa Lockwood commented in a diary over Daily Kos:

This whole lack of interest in pursuing investigations, despite growing international pressure and almost daily news of further evidence that war crimes were committed is disquieting and perplexing. Jason Leopold wrote last week that the newly victorious Dem's appear willing to put "bi-partisanship over the pursuit of justice".

Sen. Leahy apparently felt enough heat to post an explanation of his position at his website:

In contrast to reports circulating on the Internet, Leahy said he is continuing to explore the proposal.

“I am not interested in a panel comprised of partisans intent on advancing partisan conclusions,” Leahy said. “I regret that Senate Republicans have approached this matter to date as partisans. That was not my intent or focus. Indeed, it will take bipartisan support in order to move this forward. I continue to talk about this prospect with others in Congress, and with outside groups and experts. I continue to call on Republicans to recognize that this is not about partisan politics. It is about being honest with ourselves as a country. We need to move forward together.”

Furthermore, Senator Leahy took the floor of the Senate to make an appeal for "a Commission of Inquiry", citing "disturbing new facts that underscore the need for such a nonpartisan review." He then cited a number of recent revelations familiar to the readers of progressive blogs, including the ICRC report on CIA torture, the OLC memo revelations, the waterboarding of Abu Zubaydah, etc.

He added, as he has whenever he has formally presented his proposal:

One of my concerns in proposing the Commission of Inquiry is that we not scapegoat or punish those of lesser rank. Such a commission’s objective would be to find the truth – to provide accountability for the past. People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts, to know what happened and to make sure mistakes are not repeated.

With all due respect to Senator Leahy, his pleas do not appease anyone, not the GOP, nor those who want to see accountability for war crimes. His statement, moreover, appears to actually confirm Dennett's report.

Why does Sen. Leahy repeat right-wing assertions that an investigation without GOP support would be "intent on advancing partisan conclusions"... unless being against torture is now a "partisan" issue?

Secondly, note that Leahy has not said he's going forward with the investigation. He's going to continue to talk, perhaps, to Republicans, but without "bipartisan support" no investigation will move forward.

Conclusion? There will be either no investigation, or whatever investigation there is will only be on GOP terms, i.e., any investigation would now be held hostage, as regards its agenda, to the GOP presence.

It also seems possible the proposed Leahy hearings were only a show to begin with, and that with key Democrats also implicated in knowledge of torture, a real investigation of any sort was off the table.

Things are coming to a head on the torture issue. No matter how hard the politicians try, the crimes and the cry for accountability for them will not go away. This is especially true as the Obama administration has taken only partial steps towards dismantling the torture apparatus assembled by the Bush team.

Some may be shocked or feel letdown by Powell and Leahy's performance thus far. But these establishment figures are so compromised by their adherence to the government that they fear what might happen if the full truth were to emerge. And whether that happens or not depends on you, dear reader. Only a large reaction of social revulsion and the demand for prosecutions will bring justice and real change in policy.

The only question that remains is: are we, as a society, up to the task?