Tuesday, June 30, 2009

By Yoo's Own Analysis, Army Field Manual Allows Torture with Drugs

Originally posted at Firedoglake

Sometimes people can be too smart for their own good.

According to recent news stories (see Spencer Ackerman's article in the Washington Independent), the Obama administration task force on interrogations is likely to recommend "small, mixed-agency teams for interviewing the most important terrorist targets." Moreover, according to former Deputy Attorney General and Intelligence Science Board member Philip Heymann:

... interrogators from across the military, CIA, and FBI, would be charged with creating a "syllabus" of best interrogation practices that fall within the boundaries of the U.S. Army Field Manual on Interrogations, which complies with the Geneva Conventions.

Obama's reliance on the most recent iteration of the Army Field Manual, which went into effect in September 2006, has been the subject of a number of critiques by myself, and by human rights organizations, including Physicians for Human Rights, Center for Constitutional Rights, and Amnesty International. Its Appendix M allows for use of psychological torture techniques, including isolation, sleep deprivation, and partial sensory deprivation.

The main text of the AFM also changed the wording from the previous Army Field Manual as regards the use of drugs on prisoners, and did so in a way that allowed greater latitude for drugs that cause disruption of the senses and temporary psychosis. You'd think this was the brainchild of someone like John "Crush the Testicles" Yoo, but you'd be wrong.

In Yoo's famous memo, dated March 14, 2003, addressed to to William Haynes, then General Counsel at the Department of Defense, Yoo supposedly was answering Haynes/DoD's questions concerning "both domestic and international law that might be applicable to the conduct of... interrogations" of "alien unlawful combatants held outside the United States." Upon public release of the memo, it seemed to many as if Yoo were advocating an "anything goes" attitude towards torture and interrogations.

Among other instances where Yoo stretched or distorted the law to facilitate use of coercive and heretofore illegal forms of interrogation, Yoo examined the use of mind-altering drugs on prisoners. He noted that in the law against torture (emphasis added):

... [18 U.S.C.] section 2340(2)(B) provides that prolonged mental harm, constituting torture, can be caused by "the administration or application or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality." The statute provides no further definition of what constitutes a mind-altering substance. The phrase "mind-altering substances" is found nowhere else in the U.S. Code nor is it found in dictionaries. It is, however, a commonly used synonym for drugs.

Yoo twists and massages the possible meanings of the law to make it say what he wants:

For drugs or procedures to rise to the level of "disrupt[ing] profoundly the senses or personality," they must produce an extreme effect. And by requiring that they be "calculated" to produce such an effect, the statute requires that the defendant has consciously designed the acts to produce such an effect....

By requiring that the procedures and the drugs create a profound disruption, the statute requires more than that the acts "forcibly separate" or "rend" the senses or personality. Those acts must penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality.

According to Yoo, the "profound" nature of the disruption indicated could only be found in mental states similar to "drug-induced dementia," "brief psychotic disorder," obsessive-compulsive disorder, or induced suicidal or self-mutilating behavior. Even more, he notes that the use of "truth drugs," "where no physical harm or mental suffering was apparent," was rejected by the State parties to the UN Convention Against Torture as "not viewed as amounting to torture per se."

This was not Yoo's first defense of the use of drugs in interrogation. An article by Jeff Stein at CQ Quarterly on April 4, 2008 cited earlier memos, as early as January and February 2002. The famous August 1, 2002 Bybee memo (not the recent OLC release), authorizing the use of torture, was actually written by Yoo, with the help of Vice President Cheney's chief advisor, David Addington, and White House counsel Timothy Flanigan. My quotes from the Yoo March 2003 memo above were copied almost line for line by Yoo from the earlier Bybee-Yoo 8/02 memo.

Out Yoo-ing Yoo

The use of drugs in interrogations by U.S. agencies is, unfortunately, nothing new, but it is illegal. In the rewrite of the Army Field Manual, supervised by Rumsfeld right-hand man, Stephen Cambone, the Pentagon changed the wording around the use of drugs in interrogations to prohibit "drugs that may induce lasting or permanent mental alteration or damage." Previously, the former AFM had prohibited "chemically induced psychosis." So, unless that psychosis causes "lasting or permanent mental alteration or damage" -- something that is not typical with the use of psychotropic, hallucinogenic, or so-called "truth" drugs, like sodium amytal -- it's presumably allowed in the current AFM.

Oddly, Yoo's memos, which were written to provide supposed legal cover for the use of drugs and other forms of torture, appear to place the Army Field Manual's restrictions on the use of drugs out of sync with Yoo/Addington's legal justifications. Yoo would disallow the use of drugs that "cause profound mental harm," that "penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality," and are calculated to that end -- a fairly stringent standard.

But the Army Field Manual only prohibits the use of drugs in interrogations which would cause "lasting or permanent mental alteration or damage," a much more permissive standard than "profound mental harm," especially when the latter is defined as something similar to "brief psychotic disorder" (per Yoo) . Thus, when Cambone and Company, getting off on their oh-so-smart word games in the redraft of the AFM, removed the prohibition against "chemically induced psychosis" from the old AFM, and replaced it with their new formulation, then according to Yoo's own analysis, the Army Field Manual now allowed the drugging of prisoners in a manner that would amount to torture.

[Added: 7/1/09 -- Perhaps this is yet another reason why the former chief legal counsel for the CIA's Counter-Terrorism Center, Jonathan Fredman, told the Senate Armed Services committee that he was concerned that the current Army Field Manual might be vulnerable to documentation of torture by criteria of the UN's Istanbul Protocol. The latter is not a treaty or a binding document, but according to a Wikipedia article "is intended to serve as a set of international guidelines for the assessment of persons who allege torture and ill treatment, for investigating cases of alleged torture, and for reporting such findings to the judiciary and any other investigative body." (Note: I have used the Istanbul Protocol in my own forensic work, and the Wikipedia article is, in this instance, a good description of that document, an example of when Wikipedia works.)]

Meanwhile, the Pentagon is conducting an Inspector General investigation on the drugging of detainees in DoD custody. (Note: I gave information to the OIG on the Army Field Manual changes noted above to one of their investigators after they contacted me earlier this year.) The intervention by the IG came at the behest of Senators Carl Levin (D-MI), Joe Biden (D-DE) and Chuck Hagel (R-NE) who sent letters to "the CIA and Defense Department inspectors general calling for an investigation." The senators were reacting to a shocking March 2008 article by Joby Warrick in the Washington Post alleging use of drugs on "detainees." (See more in this article by Stephen Soldz. )

It's not known if, when complete, the report will be made public. A DoD member connected to that investigation did not return my request for information on its progress.

The ACLU has begun a campaign for accountabilty for those involved in the torture program. This campaign is not only about what happened in the Bush years. As the case of the Army Field Manual vividly demonstrates, accountability extends to the actions of politicians, medical personnel, and military and intelligence officers working today. The ACLU campaign has created a simple set of web tools that anyone can easily use to make their voices heard that torture is unacceptable, in any administration, at any time.

The torture issue stands at the heart of what America has been, where it is now, and what it will become. No one can be neutral on this issue. To do nothing is to allow the worst crimes to be done in our names.

Other posts online today, as part of a mini-blog storm on behalf of the ACLU's Accountablity Project:

See Emptywheel today for a detailed exploration of an autopsy report revealing death by torture in US custody.
drrational on another autopsy story documenting death by "enhanced interrogation techniques"
bmaz on torture and the Rule of Law.
Teacherken on Bob Hebert on torture.
Glenn Greenwald on NPR's inability to say "torture".

Update, Tuesday evening, adding on more bloggers for accountabilty:

mcjoan at Daily Kos: Accountability for Torture, Accountability for the Dead
digby: Looking in the Rearview Mirror
ACLU's Jameel Jaffer: Accountability for Torture
Christy Hardin Smith at FDL: Tortured Logic: A News Round-Up And The ACLU's Accountability Initiative
Daphne Eviatar at The Washington Independent: ACLU to Argue Against Use of Evidence Obtained Through Torture in Federal Court

Also there are three at ACLU Blog of Rights, from a religious point of view: by Rev. Scotty McClennan, by Arielle Gingold, and by Hussein Rashid.

Just added, Wednesday noon:

When Torture Kills: Ten Murders In US Prisons In Afghanistan, by Andy Worthington
The prelude to two notorious murders — and, very possibly, three others — in the US prison at Bagram airbase began in the summer of 2002, when 14 soldiers from the 525th Military Intelligence Brigade at Fort Bragg arrived at the prison, led by Lt. Carolyn Wood, and were soon joined by six Arabic-speaking reservists from the Utah National Guard. Lt. Wood took over interrogations from a team led by an interrogator who later wrote a book about his experiences, The Interrogators, using the pseudonym Chris Mackey. This is how I described what happened next in The Guantánamo Files....

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