Incredible music by the Tord Gustavsen Ensemble, with singer Kristin Asbjørnsen, set to words by W.H. Auden... what could be better in this world tonight?
"Restored, Returned"
Restored! Returned! The lost are borne
On seas of shipwreck home at last:
See! In the fire of praising burns
The dry dumb past, and we
The life-day long shall part no more.
- From Ten Songs, 1939, W.H. Auden
Wednesday, January 13, 2016
Sunday, January 10, 2016
Regime of Lies: 500 pages withheld in FOIA on death of Guantanamo detainee
While some detainees continue to be released, and the population of the prison camp known as Guantanamo continues to slowly shrink, 14 years after it began accepting "war on terror" prisoners the secretive regime continues to operate.
Guantanamo's slogan is "safe, humane, legal, transparent." But Guantanamo is really none of those things.
Last summer I received a response to a three-year old FOIA request from the Naval Criminal Investigative Service (NCIS) on its investigation into the death of Abdul Rahman Al Amri in May 2007. According to his autopsy report, quietly released in 2012, Al Amri was found dead in his cell, hanging from a noose presumably cut from his bedsheets, and with his hands tied behind his back.
I want to briefly discuss the Al Amri case as an exemplar of the lies and cover-up that emanate from Guantanamo, and secondarily, as an example of the complicity of the press, who while they churn out commemorative pieces for dates like this latest anniversary, have shown (with a few exceptions) no appetite to really get to the truth of what was and is still is going on in that remote island prison. Current censorship policy includes, among other things, the classification of things detainees have said, and what attorneys have heard from them.
As I noted in a February 2012 story at the webiste Truthout on Al Amri's death, and that of another detainee, Mohammad Ahmed Abdullah Saleh Al Hanashi in June 2009, "Authorities consulted... agreed, as one source put it, that having hands tied behind one's back in a hanging 'does not necessarily indicate homicide but certainly requires additional investigation.'"
But the Department of Defense never released publicly the fact Al Amri - who DoD sometimes refers to in documents as Al Umari - was found with his hands bound, and while I broke the story that he was indeed discovered that way, no other member of or agency or institution in the news media saw fit to follow up on the story, or even report it. In the meantime, I filed a FOIA for the investigative reports on his death completed by NCIS, and for the Army's 15-6 statutory report on the death filed at Guantanamo's ruling headquarters, Southern Command (SOUTHCOM).
I had also asked for the toxicology report (PDF) on Al Amri's death, because according to his autopsy report (PDF), he had inexplicably been tested for the presence of the anti-malaria drug mefloquine after his death. This was very strange. While there is no malaria problem in Cuba, all incoming detainees were administered a full treatment dose of mefloquine (also known as Lariam) upon entry into the prison, for supposed prophylactic purposed, i.e., as a public health measure.
But even if the public health rationale were true - and Jason Leopold and I published a series of articles demonstrating that the use of the controversial drug mefloquine had likely nefarious purposes, or as one military doctor put it, constituted "pharmacologic waterboarding" - Al Amri had been in Guantanamo for five years, and there was no reason to assume mefloquine had been in his blood stream for years.
One can only presume that someone thought he had possibly been administered mefloquine sometime in the near period prior to his death, and then asked the Armed Forces Institute of Pathology to see if it was present at the time of death. The possibility of such use of a drug whose only use was prophylaxis or treatment of malaria, and was already under tough criticism within DoD over its use on U.S. military personnel, raises serious questions regarding the purpose of administering that drug. Was mefloquine's common side-effects of inducing dizziness, nausea and paranoia or hallucinations in some people being used to chemically torture detainees?
Even more perplexing... why would Al Amri tie his hands behind his back before killing himself? Did he in fact do so, or was he actually murdered in his cell by guards, or others? I had hoped the FOIA material on the investigations would answer some of these questions.
But when the materials arrived from the NCIS FOIA office last July, they were heavily censored. Even more, hundreds of pages were withheld in their entirety as supposedly consisting of "documents proprietary to another Command." I was told, "Those documents have been referred for a classification review and releasability determination and return to this office."
All told, approximately 500 pages from the investigation have been withheld, awaiting "classification review." From what was released, much is redacted.
[Update (April 14, 2017): NCIS has released the 500 or so pages after the "classification review" by another Command. There are some startling new revelations in this release. I will be reporting on them very soon, so please continue to check or follow this blog.]
NCIS would not tell me what other "Command" they were referring to: that was classified, too (although I highly suspect the other Command is JTF GTMO itself). Meanwhile, six months later, I'm still waiting for clearance of this huge section of the FOIA, which was originally filed in 2012.
As for the SOUTHCOM AR 15-6 investigation, that is still under classificatory review as well, and months away from release... if I'm lucky.
Such delay in the matter of a FOIA on a detainee's death is not always so protracted. Yemeni detainee Adnan Latif was found dead in his cell in the Behavioral Health Unit at Guantanamo in September 2012. His AR 15-6 report was released in a reasonable period after a FOIA request was filed (and was the basis of news reports in 2013, again, by both Jason Leopold and myself).
Is this because Al Amri died under even incredibly more suspicious circumstances than Latif? According to one document I obtained that made it past the censors, someone after Al Amri's death tried to dispose of some of the evidence, as part of the sheet material that supposedly bound his hands was discovered by one NCIS agent tossed in "medical waste" (see accompanying photo). That doesn't sound like how a death scene is secured.
Readers may (or may not) be glad to know that I am still pursuing my investigation into Al Amri's death (and that of Mohammad Al Hanashi), and will have more to report on them in the near future. I feel this is a moral obligation, as the rest of the press has decided this is not a story worth reporting. But I think given the efforts to stymie the truth from getting out, the Pentagon knows better than that. The story will be reported, and I hope we will not have to wait for the 15th anniversary of the opening of the Guantanamo torture camp to know the truth about the death of one of its victims.
Guantanamo's slogan is "safe, humane, legal, transparent." But Guantanamo is really none of those things.
Last summer I received a response to a three-year old FOIA request from the Naval Criminal Investigative Service (NCIS) on its investigation into the death of Abdul Rahman Al Amri in May 2007. According to his autopsy report, quietly released in 2012, Al Amri was found dead in his cell, hanging from a noose presumably cut from his bedsheets, and with his hands tied behind his back.
I want to briefly discuss the Al Amri case as an exemplar of the lies and cover-up that emanate from Guantanamo, and secondarily, as an example of the complicity of the press, who while they churn out commemorative pieces for dates like this latest anniversary, have shown (with a few exceptions) no appetite to really get to the truth of what was and is still is going on in that remote island prison. Current censorship policy includes, among other things, the classification of things detainees have said, and what attorneys have heard from them.
As I noted in a February 2012 story at the webiste Truthout on Al Amri's death, and that of another detainee, Mohammad Ahmed Abdullah Saleh Al Hanashi in June 2009, "Authorities consulted... agreed, as one source put it, that having hands tied behind one's back in a hanging 'does not necessarily indicate homicide but certainly requires additional investigation.'"
But the Department of Defense never released publicly the fact Al Amri - who DoD sometimes refers to in documents as Al Umari - was found with his hands bound, and while I broke the story that he was indeed discovered that way, no other member of or agency or institution in the news media saw fit to follow up on the story, or even report it. In the meantime, I filed a FOIA for the investigative reports on his death completed by NCIS, and for the Army's 15-6 statutory report on the death filed at Guantanamo's ruling headquarters, Southern Command (SOUTHCOM).
I had also asked for the toxicology report (PDF) on Al Amri's death, because according to his autopsy report (PDF), he had inexplicably been tested for the presence of the anti-malaria drug mefloquine after his death. This was very strange. While there is no malaria problem in Cuba, all incoming detainees were administered a full treatment dose of mefloquine (also known as Lariam) upon entry into the prison, for supposed prophylactic purposed, i.e., as a public health measure.
One can only presume that someone thought he had possibly been administered mefloquine sometime in the near period prior to his death, and then asked the Armed Forces Institute of Pathology to see if it was present at the time of death. The possibility of such use of a drug whose only use was prophylaxis or treatment of malaria, and was already under tough criticism within DoD over its use on U.S. military personnel, raises serious questions regarding the purpose of administering that drug. Was mefloquine's common side-effects of inducing dizziness, nausea and paranoia or hallucinations in some people being used to chemically torture detainees?
Even more perplexing... why would Al Amri tie his hands behind his back before killing himself? Did he in fact do so, or was he actually murdered in his cell by guards, or others? I had hoped the FOIA material on the investigations would answer some of these questions.
All told, approximately 500 pages from the investigation have been withheld, awaiting "classification review." From what was released, much is redacted.
[Update (April 14, 2017): NCIS has released the 500 or so pages after the "classification review" by another Command. There are some startling new revelations in this release. I will be reporting on them very soon, so please continue to check or follow this blog.]
NCIS would not tell me what other "Command" they were referring to: that was classified, too (although I highly suspect the other Command is JTF GTMO itself). Meanwhile, six months later, I'm still waiting for clearance of this huge section of the FOIA, which was originally filed in 2012.
Such delay in the matter of a FOIA on a detainee's death is not always so protracted. Yemeni detainee Adnan Latif was found dead in his cell in the Behavioral Health Unit at Guantanamo in September 2012. His AR 15-6 report was released in a reasonable period after a FOIA request was filed (and was the basis of news reports in 2013, again, by both Jason Leopold and myself).
Is this because Al Amri died under even incredibly more suspicious circumstances than Latif? According to one document I obtained that made it past the censors, someone after Al Amri's death tried to dispose of some of the evidence, as part of the sheet material that supposedly bound his hands was discovered by one NCIS agent tossed in "medical waste" (see accompanying photo). That doesn't sound like how a death scene is secured.
Wednesday, January 6, 2016
Letter to HHS on Proposed "Intelligence Surveillance" and Criminal Justice Exceptions to Human Subject Protections
The following was my response to a call for comments from the Department of Health and Human Services (HHS) regarding proposed changes in the federal rules regarding the protection of human experimental subjects. The deadline for comments was today, and the following reproduces what I sent HHS.
Outside academia and the departments that run Institutional Review Boards, the issues surrounding these changes may seem arcane. But as my letter documents, the issues on protection of human subjects in federal funded experiments touches on some of the most important issues of our time, not least the torture program ran by the CIA and Department of Defense in the past 15 years. Other comments can be read at the link provided above. My very modest contribution in no way touches many of the important issues raised by these proposed changes, and interested readers should peruse the comments of others to get a fuller picture of the stakes involved in these proposed changes.
Note: Rather than embed links, I have provided endnotes with links, which reproduces how I sent the letter to HHS. One interesting side benefit of drafting and posting this letter was that it allowed me to update old links that had gone missing or dead over the years. Sadly, the links to much of the relevant material (Project Shad, for instance), had changed or disappeared, as public interest in the subject waxes and, sadly, wanes.
----------------------------
Date: January 6, 2016
To: Jerry Menikoff, MD, JD
Office for Human Research Protections (OHRP)
Department of Health and Human Services (HHS)
1101 Wootton Parkway, Suite 200
Rockville MD 20852
and
The Department of Health and Human Services (HHS) and other relevant agencies
From: Jeffrey S. Kaye, Ph.D.
xxxxxxxxxxxx
xxxxxxxx, CA xxxxx
Re: Notice of Proposed Rule Making (NPRM), Docket ID HHS-OPHS-2015-0008
(CFR Citation: 45 CFR 46)
HHS has asked for public responses to changes proposed in law regarding Federal Policy for the Protection of Human Subjects, also known historically as the “Common Rule.”
In particular, my comment is related to proposed exceptions to protections under federal law for human subjects on matters related to “intelligence surveillance” and “criminal justice activities.” In addition, I address suggestions of weakening protections related to Subpart C of the Common Rule, which covers research on prisoners.
Currently, the Department of Justice, the Central Intelligence Agency, the Department of Homeland Security, the High-Value Detainee Interrogation Group (HIG), and the intelligence agencies that operate under the umbrella of the Department of Defense, are all regulated by 45 CFR 46, and protection of human subjects falls under the Common Rule. There is good reason historically for this, as government agencies, often under the auspices of “national security,” failed to protect human beings who were harmed significantly under experiments undertaken by such agencies.
These agencies act under a veil of secrecy, and safeguards on potential misuse of actions considered research, as defined, or even potentially close to research, should be strengthened, not weakened.
As Jay Katz said in a 1994 review of the history of human experimentation:
Failures to protect are not instances of the distant past. According to a 2010 investigatory report by Jason Leopold and Jeffrey Kaye2:
The DoD directive (3216.02), authored by Paul Wolfowitz, mentioned in the paragraph above, was titled “Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research,” and released in March 2002. The directive was updated in 2011. But in its 2002 version, and for many years, it represented a significant weakening of human subjects protections, making waivers of informed consent the responsibility of lower-level heads of DoD divisions, and weakening protections that had been in place for decades by limiting research safeguards to “prisoners of war.” There had never been such loose rules on informed consent ever explicitly allowed in the history of military research.4 While protections against use of research on detainees, such as those held at Guantanamo, supposedly now restrict research or experiments on that population,5 the history of attempts by DoD officials to push back against such restrictions should not allow for further weakening of any protections now in place.
There are a number of other instances of lack of protection of research subjects under the Department of Defense. One of the most egregious, which like so many of these abuses, took decades to come to light, concerned the military’s Project Shad.
Project Shad was a DoD experiment that exposed at least 4,000 Navy men to various chemical agents and decontaminant chemicals, "including Bacillus globigii (BG), Coxiella burnetii [which causes Q fever], Pasteurella tularensis [which causes tularemia or 'rabbit fever'], Zinc Cadmium Sulfide, Beta-propriolactone, Sarin, VX, Escherichia Coli (EC), Serratia Marcescens (SM), Sodium Hydroxide, Peracetic acid, Potassium hydroxide, Sodium hypochlorite, ‘tracer amounts’ of radioactivity and asbestos, [and] Methylacetoacetate."6 The existence of these experiments was denied by the U.S. government for 35 years, until Congressional hearings were finally held in 2002.7 While back in 2002, there were major news reports on the subject, today the story has dropped off the radar. Nevertheless, the government website, Health.mil, still has a webpage dedicated to information on the subject.8
The history of abuses surrounding Project Shad, and other similar instances of dangerous military research, e.g. projects Copper Head, Flower Drum, Shady Grove, Autumn Gold, among others undertaken from 1963-1970, argue strongly against any lessening of human subjects protections when it comes to military research.
Finally, on the subject of military research, it is worth noting the warnings aired in a National Research Council (NRC) 2008 report on a conference on “Emerging Cognitive Neuroscience and Related Technologies.”9 Participants concluded, “On the whole… the system of protections for human research subjects is not well designed to capture instances of intentional wrongdoing,” providing “rather… guidance for well-motivated investigators who wish to be in compliance with regulatory requirements and practice standards.”
While some find the current “formal procedures in place for the use of military personnel in medical experiments” are “stringent,” that doesn’t imply “that no abuses can occur, nor that convenient alternative frameworks (such as field testing) cannot be used to circumvent the research rules, but only that the official policies and procedures in the military are rigorous.” (bold emphasis added)
But even with such supposedly “rigorous” policies, the report’s authors see a problem. They ominously ask whether “classified research can ever be ethically sound inasmuch as it lacks transparency, such as in the form of public accountability. For example, if a member of an ethics review board disagrees with a majority decision involving a classified human experiment, that member would be unable to engage in a public protest of that decision.”
I think the questions raised in the NRC 2008 report are germane and vital to the issue of NPRM changes on matters related to “intelligence surveillance” and “criminal justice activities.” In particular, the kinds of artifice that can be engaged in relation to what exactly constitutes research is precisely what makes changes in these sensitive areas of high concern.
One such instance where the issue of using field testing or adjustment of technique and program assessment vs. formal research, i.e., to test areas of generalized knowledge, concerns charges of experimentation by the CIA and DoD in regards to the application of interrogation techniques on prisoners captured in the “war on terror,” prisoners which the U.S. government removed from coverage by the “prisoner of war” provisions of the Geneva Conventions.
Research done by the government in relation to interrogation or detainees was usually couched in terms that the research was only program evaluation, as in the case of the Behavioral Science Consultation Teams at Guantanamo, or involved only research related to improvement of conditions for individual detainees, or response to specific applications of an interrogation technique, as when the CIA monitored the oxygenation level of a waterboarding victim.
The point is that in the case of intelligence or national security agencies, especially those aspects covered by secrecy and classification, or that are “covert,” determinations of what is and what is not research, i.e., what can be covered or monitored by the Common Rule, what the “exceptions” are, is actually nonsensical. Either the coverage is complete and total, or it is not.
Charges of CIA Experiments in Torture
In the case of the CIA experimental torture or “enhanced interrogation” program, OHRP referred any research misdeeds back to the agency itself, in this case, back to the CIA. Such is their policy, which is in this case is shown as grossly inadequate.
The fact remains, as documented in the recent release of the Executive Summary of the Senate Select Committee Intelligence report on the CIA’s torture program, that the plans for the “enhanced interrogation” program were formed in the same division of the CIA that ran the MKULTRA program.10
Do we really want less, not more, safeguards on “intelligence surveillance” activities?
On January 15, 2015, two United Nation Special Rapporteurs wrote an official letter to the U.S. government expressing their concern over “the role of health professionals in the Central Intelligence Agency (CIA) interrogation program, between 2001 and 2009, and the subsequent lack of investigation into these allegations.”11
The letter was prompted by new information released when in December 2014 the Senate Select Committee on Intelligence released a redacted version of its Executive Summary of its report on the CIA “enhanced interrogation” program. One section of the letter contained charges and concerns about the research component aspect of the CIA program.
I reproduce that section of their letter in its entirety, as it helps explain my contention that the secrecy of the intelligence and covert operations world cannot allow any weakening of research or informed consent protections, as the agencies involved are without moral scruple, and have a long and even recent history of covering up misdeeds.
From the Special Rapporteurs’ letter:
A Mysterious Use of Research Regarding the Department of Justice and the HIG
The NPRM states that the suspension of the common rule for “intelligence surveillance” includes “interviews, surveillance activities and related analyses... where these activities are conducted by a defense, national security, or homeland security authority solely for authorized intelligence, homeland security, defense, or other national security purposes.”13
The proposed Criminal Justice exclusion from the Common Rule involves “data collection and analysis that enables the uniform delivery of criminal justice. The scope of this exclusion is collection and analysis of data, biospecimens, or records by or for a criminal justice agency for activities authorized by law or court order solely for criminal justice or criminal investigative purposes. The activities excluded are necessary for the operation and implementation of the criminal justice system.”14
How does this look in light of the reality of research undertaken within the arcane workings of the criminal justice system? One example occurred during the interrogation of accused would-be assassin Manssor Arbabsiar. Under interrogation after arrest in 2012, a “research psychologist,” Susan Brandon, unknown to Arbabsiar was making observations and notes on defendant Arbabsiar. The research appears to have been for the FBI-led High-Value Detainee Interrogation Group, or HIG, for whom Dr. Brandon worked as “Chief of Research.”
According to another psychologist contracted to the government, Gregory H. Saathoff, Brandon was present during all of Arbabsiar’s post-arrest questioning, viewing him via closed-circuit camera, where she “closely monitored and documented Mr. Arbabsiar’s behaviors.”15
She produced a 21-page document, which has been withheld from public view, the subject of a court protective order.16 Brandon’s document, and hence her research, became part of the prosecution’s case against Arbabsiar, and was apparently part of the process of reaching a plea bargain with him and his attorneys. How did a secretive research protocol become part of a prosecutor’s evidence against a defendant?
As I wrote at the time: “So what was the administration’s top interrogation researcher doing at Arbabsiar’s interrogation? And if she was doing research, was Arbabsiar so informed? And whether he was or not, what in her role as researcher later led Brandon to file a report with the court? These are all important questions....” (see endnote vi)
In the context of the new proposed changes in the Common Rule, the questions involved are vital to the workings of both science and of a democratic society.
Research on Prisoners
Related to the Criminal Justice and Intelligence Agency exclusions are calls for weakening the protections regarding use of prisoners in research, which currently fall under Subpart C of the Common Rule. The very way this is brought up in the call for discussion is insulting: “The subpart was written in the wake of harsh criticism regarding research abuses involving prisoners that occurred or became public in the 1960s and 1970s.”
This was not simply “harsh criticism,” but well documented instances of horrific abuse of prisoners. The classic work in this field was Allen Hornblum’s book, Acres of Skin: Human Experiments at Holmesburg Prison, published by Routledge in 1998. There is no reason to lighten the restrictions against such research, which was the result of decades of abuses. Whatever positive results regarding such lightening of restrictions on consent in this case are outweighed by the dangers of unchecked power over a vulnerable population, the examples of which ruined untold number of lives.
As Mr. Hornblum concluded at the end of his book:
Sincerely,
Jeffrey S. Kaye, Ph.D.
Endnotes:
1Advisory Committee on Human Radiation Experiments, Public Meeting, Tuesday, July 5, 1994, Presentation by Jay Katz. URL: http://nsarchive.gwu.edu/radiation/dir/mstreet/commeet/meet4/trnsct04.txt
2Jason Leopold and Jeffrey Kaye, “Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program,” Truthout, Oct. 14, 2010. URL: http://www.truth-out.org/news/item/257:wolfowitz-directive-gave-legal-cover-to-detainee-experimentation-program
3“DON Human Research Protection Program: What’s New -14 November 2006.” URL: http://www.dtic.mil/biosys/docs/hu-navy_cs-2006.pdf
4See Jason Leopold and Jeffrey Kaye at i. above.
5See “New DoD Directive on Detainees Allows Sleep and Sensory Deprivation, Biometric IDs,” Invictus, September 17, 2014. URL: http://valtinsblog.blogspot.com/2014/09/new-dod-directive-on-detainees-allows.html?m=1
6“American Servicemen Used As Guinea Pigs - Tests Revealed DOD Releases Project SHAD Fact Sheets”, (no date, but first webpage circa 2002). URL: http://web.archive.org/web/20070221064138/http://www.testsubjects.net/shad.htm
7Hearing Before the Subcommittee on Health of the Committee on Veterans’ Affairs, House of Representatives, One Hundred Seventh Congress, Second Session, October 9, 2002, “Military Operations Aspects of SHAD and Project 112.” URL: http://web.archive.org/web/20090805150741/http://fhp.osd.mil/CBexposures/pdfs/oct9h02.pdf
8See “Project 112/SHAD,” (no date), URL: http://www.health.mil/Military-Health-Topics/Health-Readiness/Environmental-Exposures/Project-112-SHAD
9See Jeffrey Kaye, NRC on Research on “War on Terror” Detainees: “A Contemporary Problem,” February 12, 2011. URL: https://shadowproof.com/2011/02/12/nrc-on-research-on-war-on-terror-detainees-a-contemporary-problem/
Also National Research Council (NRC) 2008 , “Emerging Cognitive Neuroscience and Related Technologies”. URL: http://www.nap.edu/read/12177/chapter/6#118
10Jeffrey Kaye, “SSCI Report Reveals CIA Torture Program Originated in Same Department as MKULTRA,” The Dissenter (later changed name to Shadowproof), December 11, 2014,. URL: https://shadowproof.com/2014/12/11/ssci-report-reveals-cia-torture-program-originated-in-same-department-as-mkultra
11Dainius Puras and Juan E. Méndez, Letter to the U.S. Government, January 15, 2015, “Mandates of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.”
URL: https://spdb.ohchr.org/hrdb/29th/public_-_OL_USA_15.01.15_%281.2015%29.pdf
12Ibid., pp. 3-4.
13Federal Register, Vol. 80, No. 173, Tuesday, September 8, 2015, Proposed Rules., p. 20. URL: https://www.gpo.gov/fdsys/pkg/FR-2015-09-08/pdf/2015-21756.pdf
14Federal Register, Vol. 80, No. 173, Tuesday, September 8, 2015, Proposed Rules., p. 18. URL: https://www.gpo.gov/fdsys/pkg/FR-2015-09-08/pdf/2015-21756.pdf
15Jeffrey Kaye, “Government’s Psychological Evaluation of Manssor Arbabsiar Fails to Impress,” The Public Record, October 10, 2012. URL: http://pubrecord.org/law/10586/governments-psychological-evaluation/
16U.S. District Court, Southern District of New York, Protective Order, 11 Cr. 897 (JFK), USA vs. Manssor Arbabsiar, August 15, 2012. URL: https://www.documentcloud.org/documents/459526-8-15-12-protective-order-manssor-case.html
17Hornblum, Allen M. (2013-05-13). Acres of Skin: Human Experiments at Holmesburg Prison (Kindle Locations 4625-4631). Taylor and Francis. Kindle Edition.
Outside academia and the departments that run Institutional Review Boards, the issues surrounding these changes may seem arcane. But as my letter documents, the issues on protection of human subjects in federal funded experiments touches on some of the most important issues of our time, not least the torture program ran by the CIA and Department of Defense in the past 15 years. Other comments can be read at the link provided above. My very modest contribution in no way touches many of the important issues raised by these proposed changes, and interested readers should peruse the comments of others to get a fuller picture of the stakes involved in these proposed changes.
Note: Rather than embed links, I have provided endnotes with links, which reproduces how I sent the letter to HHS. One interesting side benefit of drafting and posting this letter was that it allowed me to update old links that had gone missing or dead over the years. Sadly, the links to much of the relevant material (Project Shad, for instance), had changed or disappeared, as public interest in the subject waxes and, sadly, wanes.
----------------------------
Date: January 6, 2016
To: Jerry Menikoff, MD, JD
Office for Human Research Protections (OHRP)
Department of Health and Human Services (HHS)
1101 Wootton Parkway, Suite 200
Rockville MD 20852
and
The Department of Health and Human Services (HHS) and other relevant agencies
From: Jeffrey S. Kaye, Ph.D.
xxxxxxxxxxxx
xxxxxxxx, CA xxxxx
Re: Notice of Proposed Rule Making (NPRM), Docket ID HHS-OPHS-2015-0008
(CFR Citation: 45 CFR 46)
HHS has asked for public responses to changes proposed in law regarding Federal Policy for the Protection of Human Subjects, also known historically as the “Common Rule.”
In particular, my comment is related to proposed exceptions to protections under federal law for human subjects on matters related to “intelligence surveillance” and “criminal justice activities.” In addition, I address suggestions of weakening protections related to Subpart C of the Common Rule, which covers research on prisoners.
Currently, the Department of Justice, the Central Intelligence Agency, the Department of Homeland Security, the High-Value Detainee Interrogation Group (HIG), and the intelligence agencies that operate under the umbrella of the Department of Defense, are all regulated by 45 CFR 46, and protection of human subjects falls under the Common Rule. There is good reason historically for this, as government agencies, often under the auspices of “national security,” failed to protect human beings who were harmed significantly under experiments undertaken by such agencies.
These agencies act under a veil of secrecy, and safeguards on potential misuse of actions considered research, as defined, or even potentially close to research, should be strengthened, not weakened.
As Jay Katz said in a 1994 review of the history of human experimentation:
“In my review on the regulations on the conduct of research, I have tried to demonstrate that medical science's commitment to individual autonomy continues to remain ambiguous.Lack of Research Protections in the DoD and CIA
“The call for balancing the need to advance science for mankind's benefit and to protect the inviolability of subjects of research all too commonly tilts in favor of progress….
“As you know, I do not believe that the current federal regulations on the protection of subjects of research go far enough.”1
Failures to protect are not instances of the distant past. According to a 2010 investigatory report by Jason Leopold and Jeffrey Kaye2:
“In January 2004, the Director of Defense Research and Engineering (DDR&E) initiated a DoD-wide review of human subjects protection policies. A Navy slide presentation at DoD Training Day (PDF)3 on Nov. 14, 2006, hinted strongly at the serious issues behind the entire review.This review was ordered in late January 2004, only a few months after the Supreme court had agreed to hear the case later known as Rasul v Rumsfeld, which would decide that the Guantanamo detainees had a right to challenge their detention. The DoD-wide review came over two years after a DoD directive authored by Paul Wolfowitz had indicated such procedures should be in place. As a result, none of the required assurances by the different Defense Department components regarding their human subjects protection policies had been filed with DDR&E. In effect, there was little or no oversight over DoD research policies at exactly the time when both DoD and CIA were engaged in an experimental torture program, or using detainee prisoners as human guinea pigs for the study of the effects of torture and harsh detention (about which more below).
“The Navy presentation framed the problem in the light of the history of U.S. governmental ‘non-compliance’ with human subjects research protections, including ‘U.S. Government Mind Control Experiments – LSD, MKULTRA, MKDELTA (1950-1970s)’; a 90-day national ‘stand down’ in 2003 for all human subject research and development activities ‘ordered in response to the death of subjects," as well as use of "unqualified researchers.’
The Training Day presentation said the review found the Navy ‘not in full compliance with Federal policies on human subjects protection.’ Furthermore, DDR&E found the Navy had ‘no single point of accountability for human subject protections.’”
The DoD directive (3216.02), authored by Paul Wolfowitz, mentioned in the paragraph above, was titled “Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research,” and released in March 2002. The directive was updated in 2011. But in its 2002 version, and for many years, it represented a significant weakening of human subjects protections, making waivers of informed consent the responsibility of lower-level heads of DoD divisions, and weakening protections that had been in place for decades by limiting research safeguards to “prisoners of war.” There had never been such loose rules on informed consent ever explicitly allowed in the history of military research.4 While protections against use of research on detainees, such as those held at Guantanamo, supposedly now restrict research or experiments on that population,5 the history of attempts by DoD officials to push back against such restrictions should not allow for further weakening of any protections now in place.
There are a number of other instances of lack of protection of research subjects under the Department of Defense. One of the most egregious, which like so many of these abuses, took decades to come to light, concerned the military’s Project Shad.
Project Shad was a DoD experiment that exposed at least 4,000 Navy men to various chemical agents and decontaminant chemicals, "including Bacillus globigii (BG), Coxiella burnetii [which causes Q fever], Pasteurella tularensis [which causes tularemia or 'rabbit fever'], Zinc Cadmium Sulfide, Beta-propriolactone, Sarin, VX, Escherichia Coli (EC), Serratia Marcescens (SM), Sodium Hydroxide, Peracetic acid, Potassium hydroxide, Sodium hypochlorite, ‘tracer amounts’ of radioactivity and asbestos, [and] Methylacetoacetate."6 The existence of these experiments was denied by the U.S. government for 35 years, until Congressional hearings were finally held in 2002.7 While back in 2002, there were major news reports on the subject, today the story has dropped off the radar. Nevertheless, the government website, Health.mil, still has a webpage dedicated to information on the subject.8
The history of abuses surrounding Project Shad, and other similar instances of dangerous military research, e.g. projects Copper Head, Flower Drum, Shady Grove, Autumn Gold, among others undertaken from 1963-1970, argue strongly against any lessening of human subjects protections when it comes to military research.
Finally, on the subject of military research, it is worth noting the warnings aired in a National Research Council (NRC) 2008 report on a conference on “Emerging Cognitive Neuroscience and Related Technologies.”9 Participants concluded, “On the whole… the system of protections for human research subjects is not well designed to capture instances of intentional wrongdoing,” providing “rather… guidance for well-motivated investigators who wish to be in compliance with regulatory requirements and practice standards.”
While some find the current “formal procedures in place for the use of military personnel in medical experiments” are “stringent,” that doesn’t imply “that no abuses can occur, nor that convenient alternative frameworks (such as field testing) cannot be used to circumvent the research rules, but only that the official policies and procedures in the military are rigorous.” (bold emphasis added)
But even with such supposedly “rigorous” policies, the report’s authors see a problem. They ominously ask whether “classified research can ever be ethically sound inasmuch as it lacks transparency, such as in the form of public accountability. For example, if a member of an ethics review board disagrees with a majority decision involving a classified human experiment, that member would be unable to engage in a public protest of that decision.”
I think the questions raised in the NRC 2008 report are germane and vital to the issue of NPRM changes on matters related to “intelligence surveillance” and “criminal justice activities.” In particular, the kinds of artifice that can be engaged in relation to what exactly constitutes research is precisely what makes changes in these sensitive areas of high concern.
One such instance where the issue of using field testing or adjustment of technique and program assessment vs. formal research, i.e., to test areas of generalized knowledge, concerns charges of experimentation by the CIA and DoD in regards to the application of interrogation techniques on prisoners captured in the “war on terror,” prisoners which the U.S. government removed from coverage by the “prisoner of war” provisions of the Geneva Conventions.
Research done by the government in relation to interrogation or detainees was usually couched in terms that the research was only program evaluation, as in the case of the Behavioral Science Consultation Teams at Guantanamo, or involved only research related to improvement of conditions for individual detainees, or response to specific applications of an interrogation technique, as when the CIA monitored the oxygenation level of a waterboarding victim.
The point is that in the case of intelligence or national security agencies, especially those aspects covered by secrecy and classification, or that are “covert,” determinations of what is and what is not research, i.e., what can be covered or monitored by the Common Rule, what the “exceptions” are, is actually nonsensical. Either the coverage is complete and total, or it is not.
Charges of CIA Experiments in Torture
In the case of the CIA experimental torture or “enhanced interrogation” program, OHRP referred any research misdeeds back to the agency itself, in this case, back to the CIA. Such is their policy, which is in this case is shown as grossly inadequate.
The fact remains, as documented in the recent release of the Executive Summary of the Senate Select Committee Intelligence report on the CIA’s torture program, that the plans for the “enhanced interrogation” program were formed in the same division of the CIA that ran the MKULTRA program.10
Do we really want less, not more, safeguards on “intelligence surveillance” activities?
On January 15, 2015, two United Nation Special Rapporteurs wrote an official letter to the U.S. government expressing their concern over “the role of health professionals in the Central Intelligence Agency (CIA) interrogation program, between 2001 and 2009, and the subsequent lack of investigation into these allegations.”11
The letter was prompted by new information released when in December 2014 the Senate Select Committee on Intelligence released a redacted version of its Executive Summary of its report on the CIA “enhanced interrogation” program. One section of the letter contained charges and concerns about the research component aspect of the CIA program.
I reproduce that section of their letter in its entirety, as it helps explain my contention that the secrecy of the intelligence and covert operations world cannot allow any weakening of research or informed consent protections, as the agencies involved are without moral scruple, and have a long and even recent history of covering up misdeeds.
From the Special Rapporteurs’ letter:
3. Engaging in potential human subjects experimentation to provide legal cover for tortureThere was no known response to this letter.
From the SSCI summary it can be inferred that the OMS officers played an active role in determining, along with the DoJ lawyers, what techniques would be considered authorised for the CIA to employ. The 2004 OMS Draft Guidelines stated “in order to best inform future medical judgments and recommendations, it is important that every application of the waterboard be thoroughly documented”. The OMS personnel analysed data previously collected from the detainees during torture to make generalized conclusions about the techniques. In 2004 and 2005, this data and analysis was provided to the DoJ’s Office of Legal Counsel to determine what techniques and applications would be legitimate under their interpretation of U.S. laws.
On at least two occasions, CIA personnel expressed concerns that this process would amount to human experimentation. Similarly, on 11 April 2005, OMS personnel expressed such concern when stating that the “OMS did not review or vet these techniques prior to their introduction, but rather came into this program with the understanding… that they were already determined as legal, permitted and safe. We see this current iteration as a reversal of that sequence”.
However, despite these concerns, the 2005 Office of Legal Counsel memos (known as the Bradbury memos) reveal that the final determinations on the legality and safety of the techniques relied heavily on OMS data and analysis.12
A Mysterious Use of Research Regarding the Department of Justice and the HIG
The NPRM states that the suspension of the common rule for “intelligence surveillance” includes “interviews, surveillance activities and related analyses... where these activities are conducted by a defense, national security, or homeland security authority solely for authorized intelligence, homeland security, defense, or other national security purposes.”13
The proposed Criminal Justice exclusion from the Common Rule involves “data collection and analysis that enables the uniform delivery of criminal justice. The scope of this exclusion is collection and analysis of data, biospecimens, or records by or for a criminal justice agency for activities authorized by law or court order solely for criminal justice or criminal investigative purposes. The activities excluded are necessary for the operation and implementation of the criminal justice system.”14
How does this look in light of the reality of research undertaken within the arcane workings of the criminal justice system? One example occurred during the interrogation of accused would-be assassin Manssor Arbabsiar. Under interrogation after arrest in 2012, a “research psychologist,” Susan Brandon, unknown to Arbabsiar was making observations and notes on defendant Arbabsiar. The research appears to have been for the FBI-led High-Value Detainee Interrogation Group, or HIG, for whom Dr. Brandon worked as “Chief of Research.”
According to another psychologist contracted to the government, Gregory H. Saathoff, Brandon was present during all of Arbabsiar’s post-arrest questioning, viewing him via closed-circuit camera, where she “closely monitored and documented Mr. Arbabsiar’s behaviors.”15
She produced a 21-page document, which has been withheld from public view, the subject of a court protective order.16 Brandon’s document, and hence her research, became part of the prosecution’s case against Arbabsiar, and was apparently part of the process of reaching a plea bargain with him and his attorneys. How did a secretive research protocol become part of a prosecutor’s evidence against a defendant?
As I wrote at the time: “So what was the administration’s top interrogation researcher doing at Arbabsiar’s interrogation? And if she was doing research, was Arbabsiar so informed? And whether he was or not, what in her role as researcher later led Brandon to file a report with the court? These are all important questions....” (see endnote vi)
In the context of the new proposed changes in the Common Rule, the questions involved are vital to the workings of both science and of a democratic society.
Research on Prisoners
Related to the Criminal Justice and Intelligence Agency exclusions are calls for weakening the protections regarding use of prisoners in research, which currently fall under Subpart C of the Common Rule. The very way this is brought up in the call for discussion is insulting: “The subpart was written in the wake of harsh criticism regarding research abuses involving prisoners that occurred or became public in the 1960s and 1970s.”
This was not simply “harsh criticism,” but well documented instances of horrific abuse of prisoners. The classic work in this field was Allen Hornblum’s book, Acres of Skin: Human Experiments at Holmesburg Prison, published by Routledge in 1998. There is no reason to lighten the restrictions against such research, which was the result of decades of abuses. Whatever positive results regarding such lightening of restrictions on consent in this case are outweighed by the dangers of unchecked power over a vulnerable population, the examples of which ruined untold number of lives.
As Mr. Hornblum concluded at the end of his book:
"It couldn't happen in America" we reassured ourselves about medical practices in Nazi Germany. But intolerable medical practices were practiced on vulnerable populations in America, without the support of the political culture or the despotic leadership that captivated Germany under the Third Reich, without any protest from the AMA, which prides itself on its ability to regulate itself.In conclusion, I ask that the NPRM changes proposed for weakening of protections on issues related to “intelligence surveillance” and “criminal justice activities,” as well as weakening protections related to Subpart C of the Common Rule relating to research protections for prisoners, be soundly rejected.
History suggests that we are as susceptible to abusing our socially and economically disenfranchised citizens as any other nation. If, as many believe, a democracy is only as strong as the respect accorded its weakest members, we must work to assure that neither these abuses nor the "conspiracy of silence" that makes them possible ever happen again. We must do this not only for the benefit of the powerless, but also for the benefit of society as a whole.17
Sincerely,
Jeffrey S. Kaye, Ph.D.
Endnotes:
1Advisory Committee on Human Radiation Experiments, Public Meeting, Tuesday, July 5, 1994, Presentation by Jay Katz. URL: http://nsarchive.gwu.edu/radiation/dir/mstreet/commeet/meet4/trnsct04.txt
2Jason Leopold and Jeffrey Kaye, “Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program,” Truthout, Oct. 14, 2010. URL: http://www.truth-out.org/news/item/257:wolfowitz-directive-gave-legal-cover-to-detainee-experimentation-program
3“DON Human Research Protection Program: What’s New -14 November 2006.” URL: http://www.dtic.mil/biosys/docs/hu-navy_cs-2006.pdf
4See Jason Leopold and Jeffrey Kaye at i. above.
5See “New DoD Directive on Detainees Allows Sleep and Sensory Deprivation, Biometric IDs,” Invictus, September 17, 2014. URL: http://valtinsblog.blogspot.com/2014/09/new-dod-directive-on-detainees-allows.html?m=1
6“American Servicemen Used As Guinea Pigs - Tests Revealed DOD Releases Project SHAD Fact Sheets”, (no date, but first webpage circa 2002). URL: http://web.archive.org/web/20070221064138/http://www.testsubjects.net/shad.htm
7Hearing Before the Subcommittee on Health of the Committee on Veterans’ Affairs, House of Representatives, One Hundred Seventh Congress, Second Session, October 9, 2002, “Military Operations Aspects of SHAD and Project 112.” URL: http://web.archive.org/web/20090805150741/http://fhp.osd.mil/CBexposures/pdfs/oct9h02.pdf
8See “Project 112/SHAD,” (no date), URL: http://www.health.mil/Military-Health-Topics/Health-Readiness/Environmental-Exposures/Project-112-SHAD
9See Jeffrey Kaye, NRC on Research on “War on Terror” Detainees: “A Contemporary Problem,” February 12, 2011. URL: https://shadowproof.com/2011/02/12/nrc-on-research-on-war-on-terror-detainees-a-contemporary-problem/
Also National Research Council (NRC) 2008 , “Emerging Cognitive Neuroscience and Related Technologies”. URL: http://www.nap.edu/read/12177/chapter/6#118
10Jeffrey Kaye, “SSCI Report Reveals CIA Torture Program Originated in Same Department as MKULTRA,” The Dissenter (later changed name to Shadowproof), December 11, 2014,. URL: https://shadowproof.com/2014/12/11/ssci-report-reveals-cia-torture-program-originated-in-same-department-as-mkultra
11Dainius Puras and Juan E. Méndez, Letter to the U.S. Government, January 15, 2015, “Mandates of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.”
URL: https://spdb.ohchr.org/hrdb/29th/public_-_OL_USA_15.01.15_%281.2015%29.pdf
12Ibid., pp. 3-4.
13Federal Register, Vol. 80, No. 173, Tuesday, September 8, 2015, Proposed Rules., p. 20. URL: https://www.gpo.gov/fdsys/pkg/FR-2015-09-08/pdf/2015-21756.pdf
14Federal Register, Vol. 80, No. 173, Tuesday, September 8, 2015, Proposed Rules., p. 18. URL: https://www.gpo.gov/fdsys/pkg/FR-2015-09-08/pdf/2015-21756.pdf
15Jeffrey Kaye, “Government’s Psychological Evaluation of Manssor Arbabsiar Fails to Impress,” The Public Record, October 10, 2012. URL: http://pubrecord.org/law/10586/governments-psychological-evaluation/
16U.S. District Court, Southern District of New York, Protective Order, 11 Cr. 897 (JFK), USA vs. Manssor Arbabsiar, August 15, 2012. URL: https://www.documentcloud.org/documents/459526-8-15-12-protective-order-manssor-case.html
17Hornblum, Allen M. (2013-05-13). Acres of Skin: Human Experiments at Holmesburg Prison (Kindle Locations 4625-4631). Taylor and Francis. Kindle Edition.
U.S. won't release exonerating documents to free ex-Gitmo prisoner held by Morocco
The following is a press release, dated January 6, 2016, from the international human rights organization, Reprieve, which has been advocating for former Guantanamo prisoner Younous Chekkouri. Further background on Chekkouri's case is available here.
The case also demonstrates the bankruptcy of the system of diplomatic "assurances" that surrounds the ongoing U.S. policy of conducting renditions. The inadequacy of such "protections" against torture and injustice was documented in a December 2010 report from the Columbia Law School Human Rights Institute, "Promises to Keep: Diplomatic Assurances Against Torture in US Terrorism Transfers" (PDF).
For many years, the U.S. State Department was in charge of getting such "assurances" from other countries in regards to rendition. As Secretary of State for many years in the Obama administration, Hillary Clinton bears responsibility for running this system for a number of years. Today she is a major Presidential candidate, but no one in the press will question her about her actions surrounding rendition. This inattention to crucial questions of human rights when it comes to holding politicians responsible for their actions is one reason why millions in the United States will never vote, as they know the system here is a con.
For Younous Chekkouri, sold to the Americans for a bounty and shipped to Guantanamo, held without charge for 14 years before finally being released to his native Morocco in September 2015, the system has been a horror and a nightmare.
I close with a quote from Chekkouri's 2014 Valentine Day letter sent to his wife from Guantanamo, reprinted in full at the Reprieve website:
Ex-Gitmo prisoner to remain in Moroccan jail despite assurancesThe Chekkouri case demonstrates the sham commitment to human rights practiced by the Democratic Party administration of Barack Obama. The servile Congress does nothing, or even worse, further demonizes the many innocent men still held captive in the torture prison at Guantanamo. The "alternative" political party, the Republicans, are as bad or even worse, which means the political system has left very little wiggle room for justice to even take place.
A Moroccan judge has today refused to release a former Guantanamo prisoner who has been imprisoned, despite diplomatic assurances provided to the US, since his transfer last year.
At a hearing today in Rabat – where former prisoner Younous Chekkouri has been held since his transfer out of Guantanamo in September 2015 – the judge postponed the court proceedings, and extended Younous’ detention for a fourth time, setting a new hearing date of January 26th.
This decision comes amid speculation over the Obama Administration’s efforts to close Guantanamo, which is a process dependent on diplomatic agreements between the US and recipient countries. By the time of the next hearing, Younous will have been held for 129 days longer than was stipulated in the US-Moroccan assurances.
Younous spent 13 years at Guantanamo without charge or trial, and was cleared for release in 2010 by six US federal agencies, including the CIA and the FBI. The Department of Justice has admitted to Younous’ lawyers at the human rights organization Reprieve – who have been barred from seeing him since his transfer – that some years ago, it “withdrew all reliance” on evidence that now appears to be the basis of his detention in Morocco. Despite this, it appears the Moroccan court may still decide to bring charges against Younous on the basis of the discredited former US allegations.
In the course of US court proceedings, the US government is refusing to provide Younous' lawyers with documents that could help secure his release. Last month, the Obama Administration submitted a secret filing to the court, which it is refusing to share with Younous' Reprieve lawyers. Reprieve has said, in a recent submission to the court, that the government “should be working in an open and cooperative manner to correct a manifest injustice” in Younous’ case.
Commenting, Joe Pace, one of Younous’ Reprieve attorneys, said: "Its hard to take seriously President Obama's stated commitment to righting the wrongs of Gitmo when the Administration hasn't lifted a finger to enforce the Moroccans' assurances that Younous would not be detained at length. The US government has known for years that the allegations underlying Younous' detention in Morocco are baseless, and they could secure his release with a simple phone call. It's bad enough that the US took 13 years of Younous' life at Gitmo without a shred of credible evidence justifying his detention; now the government seems content to let him languish in a Moroccan jail indefinitely."
The case also demonstrates the bankruptcy of the system of diplomatic "assurances" that surrounds the ongoing U.S. policy of conducting renditions. The inadequacy of such "protections" against torture and injustice was documented in a December 2010 report from the Columbia Law School Human Rights Institute, "Promises to Keep: Diplomatic Assurances Against Torture in US Terrorism Transfers" (PDF).
For many years, the U.S. State Department was in charge of getting such "assurances" from other countries in regards to rendition. As Secretary of State for many years in the Obama administration, Hillary Clinton bears responsibility for running this system for a number of years. Today she is a major Presidential candidate, but no one in the press will question her about her actions surrounding rendition. This inattention to crucial questions of human rights when it comes to holding politicians responsible for their actions is one reason why millions in the United States will never vote, as they know the system here is a con.
For Younous Chekkouri, sold to the Americans for a bounty and shipped to Guantanamo, held without charge for 14 years before finally being released to his native Morocco in September 2015, the system has been a horror and a nightmare.
I close with a quote from Chekkouri's 2014 Valentine Day letter sent to his wife from Guantanamo, reprinted in full at the Reprieve website:
12 years of agony. I live like a frightened child or an animal waiting for the unknown. I pray from my heart that my sadness and anxiety will come to an end. I pray to see my wife again, and to be able to tell her everything that I have kept bottled up in my heart for more than a decade.
I dare not believe that I will ever see my sweetheart again. There is only one face that comes to me in my dreams. It is her face, the one who has been crying day and night, waiting for me to hug her and say “Don’t worry my love, it was all a nightmare and now it’s over”.
In every letter I write to her, I tell her that we will never be apart again. I don’t know if she believes me or not, but I imagine her eyes shining and her lips parting in her magical smile. I do know that neither of us ever imagined we would be in this situation. Destiny is a very strange thing.
President Obama and his wife have adorable children, whose future they guard jealously. I’m sure the President’s greatest fear is that he will be apart from his wife or children. Well, I have just the same feeling because I’m human just like them.
I do not blame President Obama though for these long years, I don’t blame anyone. I want no vengeance for the 12 years I have spent in Guantánamo, never having committed any crime. I want only to feel human again, to hug my soulmate and tell her that we will never again be apart.
Saturday, January 2, 2016
Guantanamo Psychologist "Ban" Incomplete, Evidence of FBI Torture Ignored
While it is certainly a victory, or partial victory, to have psychologists removed from national security interrogations at Guantanamo, as James Risen reports in The New York Times, it turns out psychologists are not actually completely removed from that Cuban-based prison facility.
Note the careful wording of Risen's story (bold emphasis added):
Those new APA rules state: "in keeping with Principle A (Beneficence and Nonmaleficence) of the Ethics Code to 'take care to do no harm,' psychologists shall not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations for any military or intelligence entities, including private contractors working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation. This prohibition does not apply to domestic law enforcement interrogations or detention settings that are unrelated to national security interrogations."
Hence, in my reading it seems as if psychologists could be allowed at Guantanamo, in order to advise on conditions of confinement insofar as such advice does not "facilitate" interrogation. Perhaps that is what General Kelly is referring to when Risen quotes him as ordering psychologists withdrawal from "a wide range of activities dealing with detainees," i.e., not from all activities dealing with detainees.
As almost a side note, Risen quotes DoD's Burzynski as saying that all interrogations have now ceased at Guantanamo, except so-called "voluntary interviews" detainees wish with make to officials. No one questions how, at a facility under total control by the military, with detainees kept under conditions of indefinite detention (which themselves constitute torture), such "voluntary interviews" can be offered.
According to Risen, APA officers will meet with administration officials from the Pentagon and the High-Value Detainee Interrogation Group (HIG) later this month. In Risen's article, APA's Senior Policy Adviser Ellen Garrison seems to stand up to the Pentagon, and tell them APA will not change its policy to please them.
But back in 2008, when the APA membership voted on a petition to ban psychologists from sites like Guantanamo, Ms. Garrison worked with now-resigned Ethics chair Stephen Behnke to craft a "con" statement calling for defeat of the petition. It will be interesting to see how the old guard APA bureaucracy, now working with some of its former opponents on the interrogation issue, will address outstanding issues surrounding implementation of the new "ban."
But, no one is arguing for a total "ban" of psychologists from Guantanamo. Furthermore, it remains to be seen how anyone will be able to tell if the Pentagon stands by its word, not to mention how anyone will monitor the CIA for adherence to APA's new policy.
"Banned" psychologists and paper opposition
Risen's NYT article states, "Psychologists will still provide mental health care for American military personnel who work at the prison, which is allowed under the association’s rules."
Such psychologists apparently will continue to serve in a clinical function for troops or other U.S. personnel serving at the base, and presumably, the prison. This is indeed in line with the letter and spirit of "Resolution 23B," which mandated the new association rules (PDF), including a provision that psychologists could remain "at the Guantánamo Bay detention facility, 'black sites,' vessels in international waters, or sites where detainees are interrogated under foreign jurisdiction" if "providing treatment to military personnel."
That particular exception was a weakness with the resolution. Nevertheless, the resolution passed overwhelmingly by the APA's Council of Representatives last August was supported by anti-torture psychologists, such as those at Coalition for an Ethical Psychology and Psychologists for Social Responsibility (PsySR). But the resolution's "ban" still allows for Guantanamo to function, and for psychologists to work there if "providing treatment to military personnel." I believe that aspect was a compromise made to get support for the resolution as a whole, and has been a matter of compromise between pro-participation and anti-participation forces within APA for some years now. But with the new resolution passed changing rules on interrogations, there is no reason not to take up this broader issue now.
It is disturbing to see the responses to this development by press and anti-torture activists and not see any condemnation of the American Psychiatric Association (APsyA) or the American Medical Association (AMA) for their paper opposition to use of their membership in interrogations, as apparently psychiatrists (along with other nurses and technicians) are to replace psychologists in detainee interrogation, detention and/or detainee clinical matters.
Indeed, I've searched high and low to find any mainstream critic of U.S. interrogation policy or torture denounce the hypocrisy of APsyA or AMA in this matter. One partial exception is Stephen Miles, author of Oath Betrayed: America's Torture Doctors. Miles has called out AMA for a lack of leadership on the question of doctors working for the CIA interrogation program, and in general has assailed the field for its silence on medical participation in or planning of torture. But I have not seen a similar criticism by anyone of APsyA's failure to enforce its own policy banning psychiatrists from work at Guantanamo.
The fact remains, to date, no U.S. medical professional has ever been held accountable for their role in the "war on terror" torture scandal.
FBI interrogations and torture
Nor does the new policy stated by DoD have any bearing on interrogations conducted by CIA, foreign intelligence services, or the FBI. Obama's 2009 reforms of the Bush-Cheney era torture interrogations meant shutting down CIA's long-term black sites, and resting interrogation policy on the relevant Army Field Manual and ongoing reliance on rendition of "terror" suspects to interrogation and detention by foreign intelligence services ("extraordinary rendition").
But the Army Field Manual has been condemned by the UN's Committee Against Torture as containing abusive forms of interrogation, even as Congress has enshrined it in U.S. law. And human rights groups and legal groups have assailed the empty "assurances" of foreign governments that renditioned prisoners will not be tortured or abused.
Meanwhile, the role of the FBI in coercive interrogations is something that has been completely passed over. Previously, there were reports of torture of renditioned prisoners in the aftermath of the 2010 World Cup bombing in Kampala, Uganda. The FBI's activity in the latter investigation was said to be the largest between that time and 9/11. A number of prisoners renditioned from Kenya and Tanzania have accused the FBI of torture under interrogation in Uganda, including death threats and physical abuse by FBI agents.
One such affidavit of torture in my possession, by Kenyan national Yahya Suleiman Mbuthia, details such alleged FBI torture. The claims are consistent with charges by other prisoners also interrogated in the Kampala bombing.
According to Magondu, "one of the FBI officers had a pistol which he kept drawing my attention to."
In November 2012, Open Society Justice Initiative released a report on human rights abuses by the FBI in the wake of the World Cup bombing. In June 2013, the FBI responded to the OSJI report: "The FBI has found these claims to be without merit, because no evidence was identified by the FBI or any other independent entity to support them. The type of abuse alleged is wholly contrary to the FBI’s policy on interrogating suspects in foreign countries. The FBI’s policy is consistent with internationally recognized standards of conduct such as those set forth in Common Article 3 of the Geneva Conventions."
OSJI noted in its own response, "the FBI has not provided sufficient detail regarding its investigation of the allegations of detainee abuse by the FBI in Uganda or its basis for the conclusion that the allegations are without merit."
FBI and Mitchell-Jessen
FBI officials also figured prominently in the APA-initiated "independent" review of APA's activities around the interrogation-torture scandal. The report produced by Chicago attorney David H. Hoffman (large PDF), despite mainstream accolades, was a limited hangout on the torture issue, as it minimized or explained away for top U.S. psychologists collaboration with the CIA. Such minimization included the fact a former APA president had been part of the partnership of Mitchell-Jessen and Associates, contractors to the CIA's torture machine. Hoffman found this fact unworthy of further investigation in relation to APA's ethics.
But Hoffman and his investigators uncovered a wealth of new information which APA subsequently has posted on its website. This material shows what the report only covers tangentially, that is, that top FBI psychologists worked closely with APA, CIA and the military in discussing interrogation matters, including detection of deception that could affected by use of sensory overload or use of drugs in interrogation.
At the close of 2004 report on a July 2003 APA-CIA-RAND workshop, "The Science of Deception: Integration of Theory and Practice," there is a list of participants, and we can see that top FBI psychologists, such as then-FBI Behavioral Science Unit Chief Stephen Band and Anthony Pinizzotto, attended along with other academics and CIA officers, including psychologist Kirk Hubbard and psychiatrist Andy Morgan, and CIA contractors James Mitchell and Bruce Jessen.
The report was marked "Not for distribution."
"Research challenges" discussed at the 2003 meeting included "What pharmacological agents are known to affect apparent truth-telling behavior?" and "How might we overload the system or overwhelm the sense and see how it affects deceptive behaviors?"
Participants also discussed how to manipulate or increase subjects's anxieties. They also proposed research to discover "how interrogators might take advantage of some of the transference and counter-transference strategies used by psychotherapists."
A fuller analysis of this document awaits, but who will attempt it?
Hoffman passed without comment over this material. APA anti-torture activists (including former APA members who quit over the APA's interrogation policy) have not seen fit to comment either on the documented collaboration of the APA with key FBI officials, or on the release of this document. Even when it was revealed that James Mitchell had been invited as an expert to February 2002 FBI conference at its Quantico headquarters, links between FBI and the CIA torture program have been ignored. (Mitchell's invite came almost two months before he went to the CIA black site in Thailand and helped initiate the CIA's "enhanced interrogation" torture program.)
Part of the issue is that the mainstream narrative is that FBI agents, such as Ali Soufan, blew the whistle on CIA torture. While some FBI agents were queasy about torture techniques used by both the Department of Defense and the CIA, it seems there's a lot of house cleaning to do within the agency itself.
Even the story of Soufan's protest at Mitchell and Jessen's intervention in the interrogation of Abu Zubaydah is more nuanced than normally reported. For instance, Soufan told a Senate panel in May 2009 that his interrogation techniques with Zubaydah were not compliant with Geneva Common Article 3. In fact, Soufan said none of the FBI's interrogations were so compliant after 9/11. (See video of back and forth between Soufan and Sen. Lindsey Graham, beginning at 2:17, downloadable at this link.)
Doctors who said "no"
During the Vietnam War, there were doctors who refused to serve a corrupt and evil military regime. Navy doctor, Captain Howard Levy was court-martialed, not because he refused to torture, but to even serve as a trainer for Special Forces personnel. According to a follow-up story from 2002 in the New York Times, Levy survived his court-martial to carve out a career in medicine.
How was Levy's refusal to serve the military fighting an imperialist war in Vietnam any different really from the question of whether or not doctors or psychologists or nurses should refuse to serve in Guantanamo or other black sites? Capt. Levy charged (according to a legal look at his case) "that had he trained the [Special Forces] aidmen he would have been complicitous in war crimes committed by Special Forces."
Nor was Levy alone. An essay from the book Military Medical Ethics documents that more than 300 U.S. medical students and young doctors signed a pledge not to serve in the Armed Forces in Vietnam during that conflict.
Will APA, which is rumored to be assembling a new ethics panel to consider future ethics policy, continue to allow psychologists to still serve military forces at Guantanamo or other interrogation sites? It would seem so, if one considers recent activities around reforming psychological ethics.
[Note on personal connection to this subject: I have at times been a member of PsySR, and remain active on their listserv.]
Note the careful wording of Risen's story (bold emphasis added):
The United States military has sharply curtailed the use of psychologists at the prison at Guantánamo Bay, Cuba, in response to strict new professional ethics rules of the American Psychological Association, Pentagon officials said.Risen's article relates a statement by SOUTHCOM spokeswoman, Navy Cmdr. Karin Burzynski, which explains that the removal of psychologists was due to APA's new policy about psychologists and national security interrogations, and the military was concerned about possible licensing or ethics board charges for military psychologists.
Gen. John F. Kelly, the head of the United States Southern Command, which oversees Guantánamo, has ordered that psychologists be withdrawn from a wide range of activities dealing with detainees at the prison because of the new rules of the association, the nation’s largest professional organization for psychologists. The group approved the rules this past summer.
Those new APA rules state: "in keeping with Principle A (Beneficence and Nonmaleficence) of the Ethics Code to 'take care to do no harm,' psychologists shall not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations for any military or intelligence entities, including private contractors working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation. This prohibition does not apply to domestic law enforcement interrogations or detention settings that are unrelated to national security interrogations."
Hence, in my reading it seems as if psychologists could be allowed at Guantanamo, in order to advise on conditions of confinement insofar as such advice does not "facilitate" interrogation. Perhaps that is what General Kelly is referring to when Risen quotes him as ordering psychologists withdrawal from "a wide range of activities dealing with detainees," i.e., not from all activities dealing with detainees.
As almost a side note, Risen quotes DoD's Burzynski as saying that all interrogations have now ceased at Guantanamo, except so-called "voluntary interviews" detainees wish with make to officials. No one questions how, at a facility under total control by the military, with detainees kept under conditions of indefinite detention (which themselves constitute torture), such "voluntary interviews" can be offered.
According to Risen, APA officers will meet with administration officials from the Pentagon and the High-Value Detainee Interrogation Group (HIG) later this month. In Risen's article, APA's Senior Policy Adviser Ellen Garrison seems to stand up to the Pentagon, and tell them APA will not change its policy to please them.
But back in 2008, when the APA membership voted on a petition to ban psychologists from sites like Guantanamo, Ms. Garrison worked with now-resigned Ethics chair Stephen Behnke to craft a "con" statement calling for defeat of the petition. It will be interesting to see how the old guard APA bureaucracy, now working with some of its former opponents on the interrogation issue, will address outstanding issues surrounding implementation of the new "ban."
But, no one is arguing for a total "ban" of psychologists from Guantanamo. Furthermore, it remains to be seen how anyone will be able to tell if the Pentagon stands by its word, not to mention how anyone will monitor the CIA for adherence to APA's new policy.
"Banned" psychologists and paper opposition
Risen's NYT article states, "Psychologists will still provide mental health care for American military personnel who work at the prison, which is allowed under the association’s rules."
Such psychologists apparently will continue to serve in a clinical function for troops or other U.S. personnel serving at the base, and presumably, the prison. This is indeed in line with the letter and spirit of "Resolution 23B," which mandated the new association rules (PDF), including a provision that psychologists could remain "at the Guantánamo Bay detention facility, 'black sites,' vessels in international waters, or sites where detainees are interrogated under foreign jurisdiction" if "providing treatment to military personnel."
That particular exception was a weakness with the resolution. Nevertheless, the resolution passed overwhelmingly by the APA's Council of Representatives last August was supported by anti-torture psychologists, such as those at Coalition for an Ethical Psychology and Psychologists for Social Responsibility (PsySR). But the resolution's "ban" still allows for Guantanamo to function, and for psychologists to work there if "providing treatment to military personnel." I believe that aspect was a compromise made to get support for the resolution as a whole, and has been a matter of compromise between pro-participation and anti-participation forces within APA for some years now. But with the new resolution passed changing rules on interrogations, there is no reason not to take up this broader issue now.
It is disturbing to see the responses to this development by press and anti-torture activists and not see any condemnation of the American Psychiatric Association (APsyA) or the American Medical Association (AMA) for their paper opposition to use of their membership in interrogations, as apparently psychiatrists (along with other nurses and technicians) are to replace psychologists in detainee interrogation, detention and/or detainee clinical matters.
Indeed, I've searched high and low to find any mainstream critic of U.S. interrogation policy or torture denounce the hypocrisy of APsyA or AMA in this matter. One partial exception is Stephen Miles, author of Oath Betrayed: America's Torture Doctors. Miles has called out AMA for a lack of leadership on the question of doctors working for the CIA interrogation program, and in general has assailed the field for its silence on medical participation in or planning of torture. But I have not seen a similar criticism by anyone of APsyA's failure to enforce its own policy banning psychiatrists from work at Guantanamo.
The fact remains, to date, no U.S. medical professional has ever been held accountable for their role in the "war on terror" torture scandal.
FBI interrogations and torture
Nor does the new policy stated by DoD have any bearing on interrogations conducted by CIA, foreign intelligence services, or the FBI. Obama's 2009 reforms of the Bush-Cheney era torture interrogations meant shutting down CIA's long-term black sites, and resting interrogation policy on the relevant Army Field Manual and ongoing reliance on rendition of "terror" suspects to interrogation and detention by foreign intelligence services ("extraordinary rendition").
But the Army Field Manual has been condemned by the UN's Committee Against Torture as containing abusive forms of interrogation, even as Congress has enshrined it in U.S. law. And human rights groups and legal groups have assailed the empty "assurances" of foreign governments that renditioned prisoners will not be tortured or abused.
Meanwhile, the role of the FBI in coercive interrogations is something that has been completely passed over. Previously, there were reports of torture of renditioned prisoners in the aftermath of the 2010 World Cup bombing in Kampala, Uganda. The FBI's activity in the latter investigation was said to be the largest between that time and 9/11. A number of prisoners renditioned from Kenya and Tanzania have accused the FBI of torture under interrogation in Uganda, including death threats and physical abuse by FBI agents.
One such affidavit of torture in my possession, by Kenyan national Yahya Suleiman Mbuthia, details such alleged FBI torture. The claims are consistent with charges by other prisoners also interrogated in the Kampala bombing.
"... [FBI] officers said, "Don't lie to us -- we know everything about you. We will finish your family -- first your wife and then your two kids..."In a separate affidavit, another Kenyan national, Idris Magondu, who also was renditioned to Uganda and interrogated by both Ugandan police and FBI, wrote, "after the Court appearance at which I was not represented by legal Counsel, I was ordered to be remanded to Luzira Upper Prison where the FBI officers interrogated me several times... during the interrogations, the FBI officers shouted and threatened me, telling me that President Museveni had ordered his army to kill me, and the officers were banging on the table and were very aggressive."
"... one (1) FBI officer, with blue eyes, cocked his gun as if he were going to shoot me, saying that there was a bullet inside with my name on it.... the same officer told me he would kill me or leave me to rot in Luzira."
"... I was severely ill-treated during interrogation, including having an FBI officer standing behind me hitting me on the back of the head with his fist... when the FBI wanted to do their dirty work, they would ask the Ugandans to leave, and by dirty work I mean beating, forcing me to sign papers and threatening me...."
"... during interrogation, if I refused to do something, I would be hooded for 30 minutes to an hour, during which time FBI officers would cock their guns as if they were about to shoot me..."
According to Magondu, "one of the FBI officers had a pistol which he kept drawing my attention to."
In November 2012, Open Society Justice Initiative released a report on human rights abuses by the FBI in the wake of the World Cup bombing. In June 2013, the FBI responded to the OSJI report: "The FBI has found these claims to be without merit, because no evidence was identified by the FBI or any other independent entity to support them. The type of abuse alleged is wholly contrary to the FBI’s policy on interrogating suspects in foreign countries. The FBI’s policy is consistent with internationally recognized standards of conduct such as those set forth in Common Article 3 of the Geneva Conventions."
OSJI noted in its own response, "the FBI has not provided sufficient detail regarding its investigation of the allegations of detainee abuse by the FBI in Uganda or its basis for the conclusion that the allegations are without merit."
FBI and Mitchell-Jessen
FBI officials also figured prominently in the APA-initiated "independent" review of APA's activities around the interrogation-torture scandal. The report produced by Chicago attorney David H. Hoffman (large PDF), despite mainstream accolades, was a limited hangout on the torture issue, as it minimized or explained away for top U.S. psychologists collaboration with the CIA. Such minimization included the fact a former APA president had been part of the partnership of Mitchell-Jessen and Associates, contractors to the CIA's torture machine. Hoffman found this fact unworthy of further investigation in relation to APA's ethics.
But Hoffman and his investigators uncovered a wealth of new information which APA subsequently has posted on its website. This material shows what the report only covers tangentially, that is, that top FBI psychologists worked closely with APA, CIA and the military in discussing interrogation matters, including detection of deception that could affected by use of sensory overload or use of drugs in interrogation.
At the close of 2004 report on a July 2003 APA-CIA-RAND workshop, "The Science of Deception: Integration of Theory and Practice," there is a list of participants, and we can see that top FBI psychologists, such as then-FBI Behavioral Science Unit Chief Stephen Band and Anthony Pinizzotto, attended along with other academics and CIA officers, including psychologist Kirk Hubbard and psychiatrist Andy Morgan, and CIA contractors James Mitchell and Bruce Jessen.
The report was marked "Not for distribution."
"Research challenges" discussed at the 2003 meeting included "What pharmacological agents are known to affect apparent truth-telling behavior?" and "How might we overload the system or overwhelm the sense and see how it affects deceptive behaviors?"
Participants also discussed how to manipulate or increase subjects's anxieties. They also proposed research to discover "how interrogators might take advantage of some of the transference and counter-transference strategies used by psychotherapists."
A fuller analysis of this document awaits, but who will attempt it?
Hoffman passed without comment over this material. APA anti-torture activists (including former APA members who quit over the APA's interrogation policy) have not seen fit to comment either on the documented collaboration of the APA with key FBI officials, or on the release of this document. Even when it was revealed that James Mitchell had been invited as an expert to February 2002 FBI conference at its Quantico headquarters, links between FBI and the CIA torture program have been ignored. (Mitchell's invite came almost two months before he went to the CIA black site in Thailand and helped initiate the CIA's "enhanced interrogation" torture program.)
Part of the issue is that the mainstream narrative is that FBI agents, such as Ali Soufan, blew the whistle on CIA torture. While some FBI agents were queasy about torture techniques used by both the Department of Defense and the CIA, it seems there's a lot of house cleaning to do within the agency itself.
Even the story of Soufan's protest at Mitchell and Jessen's intervention in the interrogation of Abu Zubaydah is more nuanced than normally reported. For instance, Soufan told a Senate panel in May 2009 that his interrogation techniques with Zubaydah were not compliant with Geneva Common Article 3. In fact, Soufan said none of the FBI's interrogations were so compliant after 9/11. (See video of back and forth between Soufan and Sen. Lindsey Graham, beginning at 2:17, downloadable at this link.)
Doctors who said "no"
During the Vietnam War, there were doctors who refused to serve a corrupt and evil military regime. Navy doctor, Captain Howard Levy was court-martialed, not because he refused to torture, but to even serve as a trainer for Special Forces personnel. According to a follow-up story from 2002 in the New York Times, Levy survived his court-martial to carve out a career in medicine.
How was Levy's refusal to serve the military fighting an imperialist war in Vietnam any different really from the question of whether or not doctors or psychologists or nurses should refuse to serve in Guantanamo or other black sites? Capt. Levy charged (according to a legal look at his case) "that had he trained the [Special Forces] aidmen he would have been complicitous in war crimes committed by Special Forces."
Nor was Levy alone. An essay from the book Military Medical Ethics documents that more than 300 U.S. medical students and young doctors signed a pledge not to serve in the Armed Forces in Vietnam during that conflict.
Will APA, which is rumored to be assembling a new ethics panel to consider future ethics policy, continue to allow psychologists to still serve military forces at Guantanamo or other interrogation sites? It would seem so, if one considers recent activities around reforming psychological ethics.
[Note on personal connection to this subject: I have at times been a member of PsySR, and remain active on their listserv.]