Friday, November 15, 2013

IMAP/OSF Report Calls for Investigation of Drug Given to All Guantanamo Detainees

Breaking a three-year silence by the medical and human rights community, a panel of doctors, attorneys, human rights professionals, university professors and ethics experts have called for an investigation into the use of mefloquine on detainees at Guantanamo Naval Prison. The prison camp had instituted in very early 2002 an unprecedented policy of administering full-treatment doses of mefloquine to all incoming detainees at Guantanamo.

Mefloquine is an anti-malaria drug that has been very controversial over the years. It has been linked to severe neurological and psychiatric side effects, including depression, suicide, hallucinations, seizures, neurotoxicity as well as adverse and sometimes long-lasting central nervous system problems. The drug was also sold for years under the brand name Lariam in the United States, but Swiss manufacturer Hoffmann–La Roche ceased marketing it in here in August 2009.

The rationale for the Department of Defense policy on mefloquine at Guantanamo -- ostensibly to counter a supposed threat of malaria brought in by the newly arriving detainees -- underwent a withering analysis in a series of articles I wrote with Jason Leopold (see here, here, and here). At the same time, there was a strongly critical  2010 report by Seton Hall University School of Law’s Center for Policy and Research. This was followed by an article by Dr. Remington Nevin in the October 2012 edition of the medical journal, Tropical Medicine and International Health, entitled "Mass administration of the antimalarial drug meflouqine to Guantanamo detainees: a critical analysis" (PDF).

Nevin, a former Army doctor, concluded "there was no plausible public health indication for the use of mefloquine at Guantanamo," and suggested "the troubling possibility that the use of mefloquine at Guantanamo may have been motivated in part by knowledge of the drug’s adverse effects...."

The call to investigate mefloquine was made in the context of the report's strong recommendation that President Obama "order a comprehensive investigation of U.S. practices in connection with the detention of suspected terrorists... [including] inquiry into the circumstances, roles, and conduct of health professionals in designing, participating in, and enabling torture or cruel, inhuman, or degrading treatment of detainees in interrogation and confinement settings and why there were few if any known reports by health professionals."

The report, Ethics Abandoned: Medical Professionalism and Detainee Abuse in the “War on Terror, was released last week by its sponsors, the Institute on Medicine as a Profession (IMAP) and the Open Society Foundations (OSF) [link to PDF of full report]. IMAP is a major player in the medical ethics field and is funded by a number of foundations, including the Open Society Institute, the Josiah Macy Jr. Foundation, Kaiser Foundation Health Plan, Inc., the Selz Foundation, and the The Pew Charitable Trusts. IMAP also plays a central role in funding Columbia University's Center on Medicine as a Profession at Columbia University's College of Physicians and Surgeons.

The bulk of the report described how the CIA and the Department of Defense, with the connivance of the Department of Justice and health professional organizations like the American Psychological Association, changed the rules and procedures surrounding the use of health care professionals in interrogations and national security detention centers such that doctors and psychologists were enlisted in the design, participation and enabling of torture and cruel, inhumane and degrading treatment of prisoners.

In an article on November 5 at The Dissenter, Kevin Gosztola looked at the ways doctors and other health professionals participated in unethical forced-feedings of hunger strikers. In a previous look at the report, I noted its call for a new executive order banning certain interrogation techniques currently used in the Army's field manual on interrogation, which has been falsely sold to the public as "nonabusive."

The Role of Captain Shimkus

While labeling as "highly questionable" and "unexplained" the use of mefloquine at Guantanamo, the IMAP/OSF report did not investigate its use at length because, strangely enough, its task force panel included the former commanding officer at the Guantanamo Naval Hospital and chief surgeon (until summer 2003), Captain Albert Shimkus. Shimkus was the Guantanamo official who signed off on the mefloquine protocol to begin with.

IMAP/OSF report writers realized the dilemma they were in. Here's what they wrote about it:
Questions have arisen about the unexplained administration of an antimalaria drug with neuropsychiatric side effects to detainees at Guantánamo, including whether there were intelligence or security reasons rather than medical reasons for doing so. As the conduct of a member of the task Force has been questioned on this subject, the task Force does not address the matter here, but urges that the circumstances of the use of mefloquine, including the reasons for choosing it, be addressed as part of the full investigation of medical practices we recommend. [p. 48]
Asked to comment on Shimkus's inclusion on the IMAP/OSF panel, and on the report's recommendation on mefloquine, Dr. Nevin replied via email:
"While the recommendations of the Task Force to investigate the highly questionable use of mefloquine among Guantanamo detainees is welcome and long overdue, the Task Force has missed an opportunity to further explore this issue independently owing to the remarkable fact that one of the Task Force’s own members, CAPT (Retired) Albert Shimkus, former commander of the Guantanamo detainee hospital, was critically involved in the formulation and administration of detainee mefloquine policy.

For years CAPT Shimkus has consistently defended the practice by denying any misuse of the drug, including in a report published this year by the Constitution Project. Given the seriousness of allegations of misuse of mefloquine and the reluctance of CAPT Shimkus to acknowledge his role in having facilitated its questionable use, the Task Force should have recused CAPT Shimkus of involvement in their work so that the remaining panel members may have independently investigated this practice themselves, free of overt conflicts of interest. The loss of this opportunity will only further delay obtaining answers to the question of why mefloquine was used, and lessens the value of this report relative to its full potential."
Dr. Nevin's citation of The Constitution Project (TCP) report on detainee abuse is worth expanding upon, because Captain Shimkus was interviewed at length by TCP report investigators. Here's how the mefloquine issue was handled in their report, issued earlier this year:
Among Shimkus’ continuing critics are some who have suggested he aided interrogators by approving and initiating a regime of prescribing anti-malaria medication for all the detainees, at dosages far higher than those normally used for prevention rather than treatment of malaria. The drug, mefloquine, had side effects that could include paranoia, hallucinations, and depression, theoretically making recipients more vulnerable to interrogation. But Shimkus denied that this was the purpose of the anti-malarial medication, and the allegations that it was prescribed to assist in interrogation are speculative. Shimkus said he agreed with the medical decisions of others, including senior military medical officers, to conduct the medication program, and had consulted with officials at the Centers for Disease Control. He said that no one involved in the interrogation regime had any role in the decision or discussed the matter with him.

According to press reports from February 2002, malaria was far more prevalent in Afghanistan than in Cuba, where it was largely eradicated, and Cuban doctors had raised the issue of malaria prevention in meetings with Shimkus. In 2011, a Pentagon spokesperson told Stars and Stripes that the high doses of medication were appropriate because “[t]he potential of reintroducing the disease to an area that had previously been malaria-free represented a true public health concern. Allowing the disease to spread would have been a public health disaster.” [p. 32, link to PDF of full report]
"...certain issues we were advised not to talk about"

Shimkus appears to have gone out of his way to involve himself with investigations into detainee abuse, but his claims in the TCP report that he didn't notice abuse of Guantanamo detainees because he wasn't imagining any abuse would be taking place is just plain lame. (Shimkus was also a prominent positively portrayed figure in Karen Greenberg's book, The Least Worst Place: Guantanamo's First 100 Days.) His involvement in the mefloquine decision, including his explanations to this author about his motivations and actions, are, as the IMAP/OSF report indicate, matters for a full investigation.

For instance, rather than Shimkus's claim that no one discussed the mefloquine matter with him, he told me in an interview in 2010 that he was told by unspecified others not to discuss certain aspects of the mefloquine decision.

“There were certain issues we were advised not to talk about,” Shimkus told me, explaining the reason the policy was never publicly disclosed (see link).

Shimkus claims that he was worried about a possible "public health disaster." Yet he told me, in a separate interview from that noted just above, that he did not bother to discuss the malaria matter with KBR contract personnel or management when such workers were brought to Guantanamo in later 2002 to work on building Camp Delta, even though those workers mostly came from India and the Philippines, and areas where malaria can be endemic. So far as I was able to investigate, not one of those hundreds of workers could be documented to have taken mefloquine at Guantanamo.

No one knows the reason why mefloquine was mass administered at Guantanamo. Was it just poorly thought out medical policy? Was it covert testing on the side effects of mefloquine, a drug that was under fire at that same time at the Department of Defense (see link)? Was it an attempt to disorient or chemically weaken the detainees upon arrival?

The last question is not so strange when you realize that for years the CIA stockpiled another anti-malaria drug, cinchonine, to use as a chemical "incapacitating agent."

Many I speak to are not hopeful about the chances for a needed investigation. But I think that it would be premature to call over the struggle to fully unmask the torture that took place and get some form of accountability. More likely is that it would be part of, or even help spark a larger social struggle against the national security state and forms of injustice and inequality that plague this society.

Crossposted from The Dissenter/FDL

Wednesday, November 6, 2013

Former Gitmo Prisoner David Hicks Seeks to Vacate Conviction, Cites "Unlawful Process," Torture

The Center for Constitutional Rights (CCR) released a press release yesterday on its filing, with co-counsel, on behalf of former Guantanamo prisoner David Hicks of an appeal of his 2007 conviction in the Guantanamo military commissions. While Hicks pled guilty, he did not admit guilt, under a special legal strategem known as an Alford Plea. In any case, as the press release explains, the charge for which Hicks was convicted -- "material support for terrorism" -- has been deemed by a federal court to be not a war crime. Hicks' filing includes information about his torture at Guantanamo, and describes Hicks' "guilty" plea as made under duress.

For more on David's case, see the link at end of the press release. Also check out The Justice Campaign website, and Jason Leopold's 2011 interview with Hicks, the first with a journalist after he was released from prison in Australia.

CCR states that it "is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change."
Court’s Rejection of “Material Support” as a War Crime Invalidates Military Commission Conviction, Attorneys Say

November 5, 2013, Washington D.C. – Today, the Center for Constitutional Rights (CCR) and co-counsel Joseph Margulies filed an appeal on behalf of former Guantánamo prisoner David Hicks seeking to vacate Hicks’ conviction in the military commissions for “material support for terrorism.” Hicks pleaded guilty in 2007. He was the first prisoner to be convicted in a Guanánamo military commission and a party in the historic Supreme Court ruling in Rasul v. Bush, which established that Guantánamo prisoners had a right to access U.S. courts to challenge their detention. The appeal comes in the wake of the D.C. Circuit’s 2012 decision in Hamdan v. United States, which held that material support for terrorism is not a war crime and thus beyond the jurisdiction of military commissions.

“The D.C. court’s rejection of material support as a war crime is a reminder that a military commission prosecution can unravel at any time” said CCR Senior Staff Attorney Wells Dixon. “Years after Hicks was convicted and served his sentence, a federal court has concluded that the process by which he was convicted was unlawful. This is just another reason why Obama needs to end the failed experiment in Guantánamo.”

In a 74-page affidavit released in 2004, Hicks detailed torture he suffered at the hands of U.S. forces during the five and a half years he spent at Guantánamo, which included beatings, forced sedation, and sexual assault. In 2007, he entered an Alford plea, in which he pleaded guilty while continuing to assert his innocence. According to Hicks the plea was coerced and he pleaded guilty only because he believed it was the only way to get out of Guantánamo and escape the ongoing abuse and torture.

“Today is just the first step in a long process to correct the wrongs committed against me,” said David Hicks. “I was detained for six years without having committed an offense (as recognized by the CDPP in the proceeds hearing) and was tortured and pressured with duress into making unfair decisions which did not reflect the facts. I had no choice but to sign the plea deal or I would have died in Guantánamo.”

After his release from Guantánamo, Hicks returned to Australia and was placed under a one-year gag order prohibiting him from speaking to the media. As part of his plea agreement, he was also required to withdraw allegations that the U.S. military abused him and agree not to take legal action against the United States.

Co-counsel in the case are Joseph Margulies and military defense counsel Samuel Morrison and Captain Justin Swick. David Hicks is represented in Australia by Stephen Kenney.

The case is Hicks v. United States. More information, including today’s filing, is available here.

CCR has led the legal battle over Guantanamo for nearly 12 years – representing clients in two Supreme Court cases and organizing and coordinating hundreds of pro bono lawyers across the country to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. Among other Guantánamo cases, the Center represents the families of men who died at Guantánamo, and men who have been released and are seeking justice in international courts. In addition, CCR has been working through diplomatic channels to resettle men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.

Tuesday, November 5, 2013

Blue Ribbon Task Force Says Army Field Manual on Interrogation Allows Torture, Abuse

A report by a multidisciplinary task force, made up largely of medical professionals, ethicists and legal experts, has called on President Obama to issue an executive order outlawing torture and other abusive techniques currently in use in the military's Army Field Manual on interrogations. The Task Force, which wrote the report for The Institute on Medicine as a Profession (IMAP) and the Open Society Foundations (OSF), has also called on the Department of Defense to rewrite the Army Field Manual in accordance with such an executive order.

The recommendation for action on the Army Field Manual (AFM) was the second finding and recommendation in the report (PDF):
The president has issued an executive order prohibiting the use of torture and other forms of cruel, inhuman, or degrading treatment, and has repudiated Justice Department legal memoranda authorizing its use. However, the Army Field Manual on Human Intelligence Collector Operations, which binds both military and CIA interrogators, permits methods of interrogation that are recognized under international law as forms of torture or cruel, inhuman, or degrading treatment. Such methods include sleep deprivation, isolation, and exploitation of fear.
Besides recommending that the Department of Defense (DoD) revise the AFM itself, the Task Force report calls for the United States to "accede to the Optional Protocol to the Convention Against Torture, which requires the creation of an independent domestic monitoring body for the purpose of preventing torture against individuals in custody."

The recommendation to issue a new executive order on current forms of torture and abuse, and to rewrite the Army Field Manual is one of eight findings and numerous recommendations in the report. The first recommendation was for President Obama to "order a comprehensive investigation of U.S. practices in connection with the detention of suspected terrorists following 9/11 and report the results to Congress and the American people."

The report continued, "The investigation should include inquiry into the circumstances, roles, and conduct of health professionals in designing, participating in, and enabling torture or cruel, inhuman, or degrading treatment of detainees in interrogation and confinement settings and why there were few if any known reports by health professionals." In the body of the report, the Task Force indicated the investigation should include an examination of the "highly questionable" and "unexplained" use of the drug mefloquine on all the Guantanamo detainees, something I will examine in more depth in a future article.

Entitled Ethics Abandoned: Medical Professionalism and Detainee Abuse in the “War on Terror”, the IMAP/OSF report was written by the Task Force on Preserving Medical Professionalism in National Security Detention Centers. The TF roster included a former president of the American Psychiatric Association; the President of IMAP; the Chair of the Department of Health Law, Bioethics & Human Rights at the Boston University School of Public Health; a member of the International Committee of the Red Cross; a former Army general; and, controversially, the former Chief Surgeon and head of the Naval Hospital at Guantanamo, among other distinguished members.

Transforming Physicians into "Agents of the Military"

The bulk of the report concerns the ways in which the CIA and the Department of Defense, with the connivance of the Department of Justice, changed the rules and procedures surrounding the use of health care professionals in interrogations and national security detention centers such that doctors and psychologists were enlisted in the design, participation and enabling of torture and cruel, inhumane and degrading treatment of detainees.

The task force moreover found that health care professionals caused grave harm to those who otherwise should have been in their care, or to those whom they were otherwise under an ethical and professional obligation not to harm. Task Force member Dr. Gerald Thomson, Professor of Medicine Emeritus at Columbia University, said in a press release, "It’s clear that in the name of national security the military trumped that covenant, and physicians were transformed into agents of the military and performed acts that were contrary to medical ethics and practice. We have a responsibility to make sure this never happens again.”

According to the Task Force, DoD and the CIA accomplished the subornation of doctors and psychologists to torture by three mechanisms: the government's labeling of prisoners as “'unlawful combatants' who did not qualify as prisoners of war under the Geneva Conventions," along with the Department of Justice approval of "interrogation methods recognized domestically and internationally as constituting torture or cruel, inhuman, or degrading treatment"; "undermining health professionals’ allegiances to established principles of professional ethics and conduct through reinterpretation of those principles; and pervasive secrecy. (See Kevin Gosztola's story at The Dissenter.)

This is the second report in a little over six months to document the activity of medical professionals in the torture and abuse of detainees. Published last April, The Constitution Project's report on detainee abuse also noted that the Army Field Manual allowed for abuse and called for DoD "to eliminate [the AFM's] Appendix M, which permits the use of abusive tactics.... Language prohibiting the use of stress positions and abnormal sleep manipulation that was removed [from the AFM] in 2006 should be restored." (For the full report, see PDF.)

The AFM's Covert Actualization of Torture

I have followed the story of the new Army Field Manual since it was released in September 2006. In a January 2009 article at AlterNet I noted that rather than an alternative to torture, the Army Field Manual eliminated some of the worst of the CIA's "enhanced interrogation techniques," like waterboarding, only to take the standard operating procedure of Camp Delta at Guantanamo Bay and expand it all over the world.

In its Appendix M, meant only for detainees who did not qualify for the Geneva Conventions' Prisoner of War protections, under a deceptive omnibus "technique" called "Separation," the new AFM allowed for ongoing isolation and sleep deprivation of prisoners, for dietary and environmental manipulations, so long as they were not "extreme", and for forms of sensory deprivation (under the description "field expedient separation").
The President of the National Lawyers Guild Marjorie Cohn has stated that portions of the AFM protocol, especially the use of isolation and prolonged sleep deprivation, constitutes cruel, inhuman or degrading treatment or punishment and is illegal under the Common Article 3 of the Geneva Conventions, the U.N. Convention Against Torture and the International Covenant on Civil and Political Rights. Hina Shamsi, an attorney with the ACLU's National Security Project, has stated that portions of the AFM are "deeply problematic" and "would likely violate the War Crimes Act and Geneva," and at the very least "leave the door open for legal liability." Physicians for Human Rights and the Constitution Project have publicly called for the removal of problematic and abusive techniques from the AFM.

Yet, the interrogation manual is still praised by politicians, including then-presidential candidate Barack Obama, who in December 2007 said he would "have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors."
The authors of the 2006 Army Field Manual presented their work as reform, and at first that's what many believed. Even today, Appendix M is represented as a single "technique." Some misunderstand the idea of "separation" and think it has something to do with isolating prisoners for safety or security reasons. But the Manual itself (PDF) calls such separation for security reasons "segregation," and specifically says the "Separation" discussed in Appendix M is not the same as security segregation but is meant for interrogation purposes, its techniques to be applied with others in the Army Field Manual, including Fear Up and Ego Down techniques, i.e., with use of fear and humiliation.

Yet all of this was presented with prettified words of adherence to Geneva, and forbidding of torture and abusive techniques like waterboarding and hooding, or use of dogs, types of torture and abuse allowed by the CIA and DoD during the Bush years.

The Torture Memo That Obama Never Rescinded

Obama was a man of his word, and he eliminated the CIA "enhanced interrogation" program, and withdrew the torture memos that had justified it. Or at least that was the impression. In fact, as I revealed in an article at The Dissenter on May 1 this year, Obama never rescinded all the Yoo/Bybee/Bradbury Office of Legal Council memos on interrogation, but had passed them on to his Attorney General for final disposition. Bradbury's April 16, 2006 memo on the Army Field Manual and Appendix M was never rescinded, according to a spokesperson for the Department of Defense. (DoJ has refused substantive comment on the issue.)

Bradbury's memo was deeply dishonest. It made assertions about the legality of techniques that were never documented (though they were presented in a verbal report to Congress). He approved the constitutionality of the bulk of the AFM (everything except Appendix M) in one sentence, hiding the fact that the manual had changed in substantive ways from earlier versions, besides the addition of Appendix M. This included an expansion of the "Fear Up" technique to include the exploitation of "new" phobias in prisoners, the elimination of the prohibition against stress positions and sleep deprivation, and a widening of the latitude in using drugs on prisoners.

The truth about how the Army Field Manual has been used to hide abuse of prisoners has been largely hidden from the public. Although both the IMAP/OSF and Constitution Project reports have gotten a lot of press coverage, very little of the coverage has noted the calls for a revision of the Army Field Manual, or the fact the AFM even has techniques that amount to torture and cruel, inhuman or degrading treatment.

To the calls for an executive order and rewriting the field manual must be added the revocation of the Bradbury Army Field Manual/Appendix M memo.

Obama, the Army Field Manual, and Torture

A lot has been made in recent years about how the New York Times is reticent to use the word "torture" to describe what is under any common sense or legal definition torture. That is certainly a disgraceful adaptation to the U.S. government's policies on interrogation, which include Bush and Cheney's outright advocacy of torture to the Obama administration's refusal to investigate or hold accountable those who tortured.

Even more egregious has been the characterization by the Times of the Army Field Manual as "nonabusive." Charlie Savage characterized the Army Field Manual as "nonabusive" in a widely-distributed article, "Election to Decide Future Interrogation Methods in Terrorism Cases" (Sept. 27, 2012). Savage's contention that Obama has stuck to a "strict no-torture policy" is belied by the evidence. Such misinformation, whether intentional or not, does real harm, the more so as it comes from an authoritative source.

As difficult as it is for many people to accept, we know from all that is described above that the Obama administration is itself involved in torture, from its approval of extraordinary rendition to the documented operation of detention centers, ostensibly under the administration of allied forces, where torture takes place. (See this 2011 report in The Nation by Jeremy Scahill about CIA torture sites in Somalia.) Other accusations of torture by agencies such as the Federal Bureau of Investigation exist as well.

Yet it is the covert actualization of torture in the Army Field Manual that is the most pervasive application of torture at this date, as the AFM is the primary standard for interrogations used by both DoD and the CIA.

The IMAP/OSF report notes that the U.S. torture program was predicated on the production of "debility, dependency and dread" in those who are interrogated (see pgs. xiv and 18). The origin of this "DDD"-style torture was the research done under the CIA's MKULTRA and associated programs, which included DoD behavioral research on SERE-style training to withstand torture even as early as the 1950s. (For more on this aspect of the story, see "Beware Misdirection on Torture (the 'DDD' Story)" and "Top U.S. Behavioral Scientists Studied Survival Schools to Create Torture Program Over 50 Years Ago.")

The Army Field Manual utilizes precisely this program: isolation and sleep deprivation to produce both debility and dependency, use of "Fear Up" and sensory deprivation to cause "dread." Sometimes drugs are used to enhance these effects. The IMAP/OSF report notes the research I did with Jason Leopold, which culminated in the FOIA release of the DoD's Inspector General report on drugging, which admitted to both involuntary drugging of prisoners, and the fact that at least one prisoner (Jose Padilla) was made to think he had been given hallucinogenic drugs, in order to cause fear and disorientation.

The reason serious problems with the Army Field Manual issue do not command more interest among the American people is political. The issue usually goes unreported. The significance of the fact the nation's primary interrogation manual utilizes torture and abuse is not recognized, though this is primarily because the press does not push it. Even the human rights organizations who have publicly taken the AFM to task, or publicly called for change, do not put the issue on the front burner. Indeed, even IMAP left their recommendation to rewrite the Army Field Manual out of its press release.

But the fact remains that more and more sections of the Establishment are able to see through the propaganda and ignorance surrounding the nation's interrogation protocols. While the IMAP/OSF and Constitution Project reports represent important steps forward in the battle to end torture, it will take a political battle with major elements within the Democratic Party who still support the Army Field Manual and other aspects of the militarist program that is the "war on terror" to make the changes in interrogation policy something concrete and not only aspirational.

Also posted at The Dissenter/FDL

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