Saturday, November 7, 2015

US Congress Delays Review of Current US Torture Protocols

In what Democratic Senator Dianne Feinstein called a "minor" change to the National Defense Authorization Act (NDAA), a mandated review of the Army Field Manual (AFM) on interrogation was moved from one year to three years from now.

According to a "Q&A" at Human Rights First last June, the mandated review of the AFM was part of the McCain-Feinstein amendment to the NDAA, and was meant "to ensure that its interrogation approaches are lawful, humane, and based on the most up-to-date science."

The fact there was any "review" at all was really a response to criticism from the United Nation's Committee Against Torture, which demanded a review of the AFM's Appendix M, which has been long criticized as allowing abusive interrogation techniques, including isolation, sleep deprivation, and sensory deprivation. In Beth Van Schaack's Dec. 2014 article on the UNCAT review, published at Just Security, Schaack quoted one UN critic who complained the US delegation would not answer his questions on abuse:
My question related to the field expedient separation, which involves a deprivation of sensory inputs that have scientifically been demonstrated to provoke psychotic conditions, so I did not get any response to the considerations of whether this might involve ill-treatment.
Of course, US officials told the UN committee that interrogations were conducted under "all applicable legal, regulatory and policy principles and guidelines."

In fact, the UN CAT criticism of the Army Field Manual was if anything too soft. The AFM allows other forms of abuse amounting to torture, including use of drugs that can change consciousness, use of techniques that heighten fear (including pretending that interrogators are from other countries), and a variety of procedures gathered under the label "Futility."

The Futility "approach" is meant to induce feelings of "hopelessness and helplessness" in a prisoner. Military documents show that when loud music and strobe lights for hours on end were used for this purpose, the military called it "Music Futility."

While the NDAA was vetoed by the GOP-controlled Congress, and is the subject of ongoing negotiations between Congress and the Obama administration, nothing about the controversy over the veto concerns interrogation or the rules for same as laid out in Army Field Manual 2-22.3.

The changes in the timespan allocated for the "review" were made in Congressional conference to "reconcile" the differing versions of the NDAA bill between that of the House of Representatives and the Senate. Such reconciliation conference is common and part of the process of bringing a bill to the president's desk.

Feinstein's Press Release on NDAA

In an October 7, 2015 press release from Sen. Feinstein lauded the supposed "anti-torture" provisions of the NDAA. The California senator, who was previously chair of the Senate Select Committee on Intelligence, was specifically referring to the part of the bill that made adherence on interrogation policy to the Army Field Manual a matter of statutory law for military and intelligence agencies. This so-called "anti-torture provision" was meant to forestall any repeat of the institution of torture procedures such as those used by the CIA in its "enhanced interrogation program."

While it is a good thing that waterboarding and other SERE-derived forms of torture are not to be allowed anymore -- and they were part of an experimental program in any case -- long-standing forms of torture are now protected by law because they are part of the Army Field Manual itself.

The idea that the AFM allows torture is not unique or bizarrely limited to myself. Last year, as the Just Security link above shows, the UN also leveled such a critique. I've written in various venues and with differing emphases just how the AFM allows such abuse. As a small example, see this article, or this, or this.

When the pre-veto version of the NDAA was passed -- the version that made the Army Field Manual on interrogation literally the law of the land -- all the liberals and human rights groups stood up and applauded. None of them mentioned that only months before the UN had criticized the document for use of abusive techniques, and in particular the use of isolation, and sleep and sensory deprivation noted above. Not one.

Some of those human rights groups and individuals had previously been highly critical of the AFM. One that in particular stands out is Physicians for Human Rights (PHR). Back in 2006 they uniquely saw the problems with the AFM and criticized that document publicly. In 2010, PHR, along with Amnesty International, the National Religious Campaign Against Torture, the Open Society Foundations, the Center for Victims of Torture, Human Rights First and Human Rights Watch, sent a letter to the Pentagon calling for the elimination of the AFM's Appendix M.

Today, none of these organizations have opposed the NDAA enshrinement of the AFM as the guide for interrogations, which includes the UN-condemned Appendix M. It's not as if they give critical support, or anything like that. They are simply silent about the presence of torture. I suppose they believe -- given the fight, for instance, over closing Guantanamo, which also is intertwined with the politics of the NDAA's passage, or language in the NDAA that supposedly guarantees the U.S. cannot delay in notifying the International Red Cross when it holds a prisoner -- that quibbling over the presence of torture techniques in the nation's primary interrogation manual would be politically inexpedient.

Delayed and "Disappointed"

There have been a very few who were aware or sensitive to this issue - and that included people associated with interrogation policy and research as it is pursued by the government's High-value Detainee Group, or HIG. Some of them assured me, prior to the language of further delay that came out of the conference version of the bill, that the review process in the NDAA was meant to take care of the offenses currently in the AFM. Later, when the review process was then delayed for three more years, one of these individuals, Mark Fallon, a former whistleblower on Pentagon torture, tweeted that he was "disappointed" by the Congressional change.

But Feinstein was not disappointed. Here's how she described the shift in policy related to the AFM "review" in her press release, which bore the title, "Feinstein Hails Congressional Passage of Anti-Torture Legislation." Please bear with me, as her explanation is quite lengthy for such a "minor" change, but then it takes awhile to lay out the terms of a double talk explanation. I've bolded a few places I thought worth emphasizing:
Mr. President, in order to make sure that the legislative history is clear, I’d like to describe the minor changes that were made to the language of this anti-torture provision during the conference.

As described in the Joint Explanatory Statement of the Committee of the Conference, the following two minor changes were made to the amendment....

The second minor change to the anti-torture amendment that was made in the conference committee is that the timing for the completion of the required update to the Army Field Manual — after the specified “thorough review” — was changed from “[n]ot later than one year” to “[n]ot sooner than three years” in subsection (a)(6)(A) of Section 1045.

This change does not alter the importance of the required review, the imperative that it be initiated in the immediate future, and that it be completed in three years time.

The language of the provision is clear: the conferees wanted the Secretary of Defense to be thorough and gave him three years to complete the review. But the amendment says that he “shall complete” a thorough review after three years, not that he “shall initiate” a thorough review after three years.

It is also important to point out that, regardless of the timing of this statutorily required review, this administration or the subsequent administration may at any time revise portions or the entirety of the Army Field Manual.

As Section 1045(a)(6)(A) states, revising the Army Field Manual is not optional; it is a “Requirement to update.” Moreover, the provision makes clear that this requirement must be undertaken every three years. Therefore, it would be inconsistent with the title, structure, and purpose of this subsection to suggest that the initial review following enactment can be postponed indefinitely.

Also, as the amendment notes, revisions to the Army Field Manual may be necessary to ensure that it complies with the legal obligations of the United States, a requirement that the Executive Branch is obligated to adhere to at all times.

In addition, no matter when the updates to the Army Field Manual are made, the manual “is designed to reflect best practices for interrogation to elicit reliable statements,” as the conferees also wrote their Joint Explanatory Statement. America’s best and most experienced interrogators have consistently and emphatically stated that best practices for eliciting reliable, actionable intelligence solely involve non-coercive techniques that elicit voluntary statements.
The double-talk starts immediately. The delay doesn't mean the review isn't important. It was only done to allow the Secretary of Defense plenty of time to be "thorough." Besides, the AFM could be revised anytime the administration desired!

If the latter is true, then why does the Obama administration allow portions of the AFM that have been widely hailed as torture to continue? We can only assume that he intends it to.

Tip of the Spear

The entire discussion of torture by the United States is so distorted, so hypocritical, and filled with misdirection and falsehood that is is not surprising that any thinking or sensitive person would just want to turn away, or bury their heads in the sand.

The use of the Army Field Manual is the tip of the spear in the use of torture techniques by the United States today, not the CIA's old EIT program, which ended by executive order of by President Obama in 2009 (or the CIA says even earlier).

The AFM techniques embody the program created by the military and CIA during the Cold War, described best in the CIA's 1963 KUBARK interrogation manual, which relies on the use of fear, sleep and sensory deprivation, including profound use of isolation of the prisoner, and other forms of producing debility and dependency, as a means to control and demand cooperation, the better to "exploit" the prisoner for whatever use the government agency deems fit. The latter usually includes provision of information and/or demand the prisoner work as an agent of the intelligence component itself.

The government, despite claims that it is "transparent" now about interrogation issues, and that policies are well-reviewed, produces literally nothing to back up its claims when it comes to the Army Field Manual. The reader can judge for themselves by the frustrating non-results of my various FOIA requests to the Office of the Secretary of Defense, the DIA, and SOUTHCOM, regarding supposed mandated requests for review of the AFM or use of Appendix M.

The failure of U.S. civil society, by which I mean academics, intellectuals, news media and bloggers, professional medical societies, human rights and legal organizations, and politicians, to respond to the fact of torture in the Army Field Manual -- and in some cases, as with PHR, to turn their back on former positions -- is profound and depressing.

One significant exception are the psychologists around the group Psychologists for Social Responsibility (PsySR), who publicly came out against Appendix M last year. But when the pressure to pass the NDAA with its provision on use of the AFM was put forward, the psychologist-based organization suddenly went silent. One leading member told me that it was because so much effort and time was being put into changes in policies on interrogation and torture in the larger American Psychological Association that leading members of PsySR were involved in. That may be true, but how much time does it really take to stand up and say something is wrong?

Still, the individuals around PsySR have done far more than any other group, and uniquely helped engineer the APA's recent letter to administration officials on torture policy, which included the first statement by a professional medical organization calling for the U.S. to end its "understandings and reservations" to the UN Convention Against Torture treaty itself. (See October 28, 2015 letter sent by APA to President Obama, Secretary of Defense Ashton Carter, and others.) The US reservations to the UNCAT were fashioned by attorneys for the Reagan and Bush administrations and were uniquely meant to eviscerate protections against use of torture and cruel, inhuman and degrading treatment of prisoners. But APA's position on that has been universally ignored by the press.

It is difficult to know how or if the mendacity surrounding U.S. interrogation policy and use of the Army Field Manual will change. Feinstein's double-talk demonstrates that administration and Congressional figures are sensitive to the fact that torture remains. The real problem now lies with the press, who appear unable to take on the issue, wedded only to topics that are approvable by editors, and really don't challenge the current status quo.

It's easy, in a way, to criticize at this point the CIA's old EIT program. But the presence of abuse in the Obama-sanctioned use of the Army Field Manual, or use of foreign intelligence agencies as torture proxy agents via rendition (an important aspect of the torture issue I did not touch upon in this article), go unregarded and unremarked. I cannot let that be so, but who really will join me on this?

[Acknowledgment to VICE's reporter, Jason Leopold, who forwarded Feinstein's October 2015 press release to me. Thanks as always, Jason!]

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