Judicial Ignorance and Bias Doom Ahmed Abu Ali to Decades in Isolation in Key "War on Terror" Case

Even as a desperate hunger strike by detainees at Guantanamo prison camp continues, with dozens in medical peril, preferring death to the lawless existence of indefinite detention and ongoing planned (or some might say, capricious) abuse, human rights and civil liberties activists often point to the Article III courts as an alternative in the prosecution of "war on terror" crimes. But an examination of actual cases prosecuted in the criminal courts shows that use of accepted rules and appeal procedures merely produce their own version of unfairness and arbitrary injustice.

Ahmed Abu Ali is a young man in his early 30s, who at this point in his life should be coming into his career prime, consolidating his family, and making his mark upon the world. Instead, he is held in the extremely onerous conditions of government-imposed Special Administrative Measures (SAMs) at the Administrative Maximum Facility (ADX) in Florence, Colorado, held "in 23-hour lockdown, in a 7x12 cell", out of all practical reach to anyone, essentially buried alive.

Notoriously, Ahmed was framed up by the notorious torturing security forces of Saudi Arabia. A confession, including incredible assertions he was a member of Al Qaeda, was planning another 9/11-type terrorist plot, and planning to assassinate former President George W. Bush, was coerced out of him via use of physical and psychological torture. But the evidence for this torture was contested in court. As often happens, there was a disagreement between government and defense experts, even as to the meaning of the scars on Ahmed's back.

Determining Evidence of Torture

The main forensic difficulty in determining that torture took place is providing convincing evidence of an event that happens understandably behind closed doors, in secret. The perpetuators of torture will not admit the act. If you are experts in torturing -- and according to human rights groups, the Saudi Mabahith al-Amma, or secret police of the Ministry of the Interior, are such experts -- physical evidence of torture is kept to a minimum. Much of the primary evidence of torture must come from the victim him or herself. Hence, from a judicial standpoint, the judge's assessment of the credibility of the victim's testimony in court is paramount.

I personally know this as I have stood as a defense expert witness in a number of asylum cases brought in the U.S. immigration courts, and have conducted psychological assessments of dozens of torture victims. Hence, it was with alarm and dismay that I read Judge Gerald Bruce Lee's opinion on the defense suppression motion regarding Ahmed Abu Ali's confession while in Saudi Arabian custody. (The FBI had garnered some sort of confession from Ahmed when interviewing him some three months into his incarceration by the Saudis, but that confession was never used in court because Ahmed was not read his Miranda rights.)

It is with my training and expertise that I turned to my examination of the public records on the Ali case. What I found was egregious ignorance displayed by the judge in his decision, who relied on his own arbitrary subjective experience of Ahmed's testimony in court, and discounted the testimony of expert witnesses. Instead, he showed a notable deference to those in power and to even foreign police testimony, accepting the credibility of key officials from the Mabahith, and in allowing the torture-produced testimony to stand and deny Ali's motion to suppress, dismiss the Ahmed's story of his torture as "non-credible."

Here is what Judge Lee wrote in his decision (bold emphasis added):

Mr. Abu Ali’s own testimony and his demeanor cause the Court some reservations. It is not uncommon for the victim of such horrors to have difficulty recalling details of the event, or to put them out of their mind. However, while Mr. Abu Ali dramatically recounted a brutal beating and humiliating treatment, it is noteworthy that Mr. Abu Ali could not recall, even by texture, shape, or dimension, what hit him. Was it a cylinder? Belt? Whip? Stick? Baseball bat? Of course, he was blindfolded and chained to the floor when the beating allegedly occurred so he may not know the exact item used to hit him. However, it seems to the Court that he could, at the very least, provide some basic description of what the item might have been based on how it felt to him.....

The Court has already said that it finds that Mr. Abu Ali is intelligent, capable, and articulate. The Court cannot discern whether Mr. Abu Ali is sincere or just cunning.

This was followed by appellate review by the U.S. Court of Appeals for the Fourth Circuit, which noted:

... the district court found itself "left with lingering questions concerning the credibility of Mr. Abu Ali and his claim that he was tortured," id. at 378. The court credited the testimony of the Saudi Arresting Officer and the Lieutenant Colonel (the Warden at the Medina detention facility where Abu Ali was held for two days following his arrest) that no Saudi official used coercive interrogation techniques on Abu Ali. The court found that the Lieutenant Colonel’s testimony that Abu Ali was never abused was believable while Abu Ali’s contrary testimony "raise[d] questions that bear on the defendant’s credibility." Id. at 373.

It was the testimony of two defense experts, Dr. Allan Keller from the NYU School of Medicine and Bellevue Hospital, and psychiatrist Lynne Gaby from George Washington University Medical Center and the Program for Survivors of Torture and Severe Trauma in Falls Church, Virginia, that Ahmed suffered PTSD, and that his testimony regarding his torture was credible. See the written reports of Drs. Keller and Gaby here and here, respectively.

Judge Lee obviously decided to rely on the government experts (more on that down below), FBI testimony, and the word of the Saudi security officials. He did not, however, allow testimony pertaining to Saudi Arabia's human rights record, evidence that would have corroborated Ahmed's claims, and thrown doubt on the testimony of the Saudis.

From Amnesty International's December 2005 special report on their observations of the Ali trial:

Amnesty International is particularly concerned that during the trial, defence lawyers for Ahmed Abu Ali were not allowed to present any evidence pertaining to Saudi Arabia’s human rights record, its record on torture and even particularly on the record of the Mabahith al-Amma. Judge Lee ruled that only evidence which related directly to Ahmed Abu Ali’s interrogation would be admissible, thus denying the defence the opportunity to present relevant evidence, including from two UK nationals who were held in al-Ha’ir prison at the same time as Ahmed Abu Ali and claim to have been tortured into confessing to terrorist offences. One of the men, William Sampson, described in detail to Amnesty International the use of torture and torture techniques during his detention in Saudi Arabia similar to Ahmed Abu Ali’s allegations.

Memory, Trauma, and Judicial Assessment of Credibility

Most egregious from my point of view was Judge Lee turning his back on psychiatric testimony to base his assessment of Ahmed's credibility on whether or not Ahmed could remember or identify the instrument of torture used on his back, even though he was blindfolded and chained to the floor at the time, and was undergoing extreme duress.

Yet, the fact is such forgetting of elements of the trauma is a prime criterion of the PTSD diagnosis. To use such forgetting as evidence against someone who was tortured is to turn the entire clinical literature and experience of PTSD and torture on its head.

According to a governmental website, which describes the modern psychiatric diagnosis of PTSD, using criteria from the American Psychiatric Association's Diagnostic Manual, version IV, Criterion C of the diagnosis pertains to "avoidant/numbing." It describes what this means (bold emphasis added):

Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by at least three of the following:

Efforts to avoid thoughts, feelings, or conversations associated with the trauma
Efforts to avoid activities, places, or people that arouse recollections of the trauma
Inability to recall an important aspect of the trauma

Judge Lee pondered whether this inability to remember what kind of instrument (to which he was blinded anyway) hit his back was due to "cunning." In fact, Lee was either ignorant of or refused to consider mainstream findings in PTSD research.

Here's just a few examples of what are widespread findings on memory and PTSD. In the 1996 book Trauma and Memory (Sage Publications), Linda Williams writes, "Numerous studies have found that a significant proportion of adults who report a trauma histroy also describe a period of time when they did not recall the experience."

In a 2007 article in the British Journal of Psychiatry, "Asylum claims and memory of trauma: sharing our knowledge," Drs. Jane Herlihy and Stuart Turner wrote, "When it comes to memories of personal experiences, we also know that emotion plays a big part both in what is encoded at the time and what is recalled later. The Yerkes–Dodson inverted-U model of performance and emotional arousal (Yerkes & Dodson, 1908; see Deffenbacher, 1983) reminds us that high levels of emotion may impair encoding of any memory, not just traumatic memories."

In a 1998 article in Psychiatry and Clinical Neurosciences by one of the most notable of all PTSD experts, Dr. Bessel van der Kolk, Dr. van der Kolk discussed in depth issues with "Trauma and Memory":

While the vivid intrusions of traumatic images and sensations are the most dramatic expressions of PTSD, the loss of recollections for traumatic experiences is well documented....

Amnesia of traumatic experiences, with delayed recall for all or parts of the trauma, has been noted following natural disasters and accidents... war-related trauma... kidnapping, torture and concentration camp experiences... physical and sexual abuse... and after committing murder....

Christianson described how, when people feel threatened, they experience a significant narrowing of consciousness, and remain merely focused on the central perceptual details. As people are being traumatized this narrowing of consciousness seems to sometimes evolve into a complete amnesia of the experience. More than 80 years ago, Janet claimed:

"Forgetting the event which precipitated the emotion... has frequently been found to accompany intense emotional experiences in the form of continuous and retrograde amnesia.... They are an exaggerated form of a general disturbance of memory which is characteristic of all emotions".

He claimed that when people become too upset, memories cannot be transformed into a neutral narrative; a person is 'unable to make the recital which we call narrative memory, and yet he remains confronted by (the) difficult situation'. This results in 'a phobia of memory' that prevents the integration ('synthesis') of traumatic events and splits off the traumatic memories from ordinary consciousness.....

Similar observations have been made by other clinicians treating traumatized individuals.

One could go on and on, but the point is well-made, and if Judge Lee were an honorable man, he would come forward now to admit his mistake and help initiate a re-hearing on Ahmed's behalf.

The defense experts are not without criticism either, but their mistakes, primarily of omission -- they should have, for instance, conducted assessments for other posttraumatic responses besides PTSD, such as depression -- are not in the same league as the concerted bias and willful ignorance of the prosecution and the judge in this case. Notwithstanding the terrible injustice of the use of SAMs, and solitary confinement of US prisoners like Ali (see this most recent report by Physicians for Human Rights on the torture that is solitary confinement), the capricious application of judicial assessment of credibility in this case merits widespread outrage.

According to the American Bar Association Publication, "Judging Credibility," by John L. Kane (Litigation Magazine, Volume 33, Number 3, Spring 2007), "There is no law on judging credibility. Judges and jurors receive guidelines and elementary observations in the form of stock instructions but are essentially free to decide for themselves."

An examination of Kane's recommendations helps us better understand the trap Lee, even if he were without bias, and other judges may fall into when it comes to complex mental health considerations surrounding PTSD. Kane discusses, for instance, the issue of memory as a matter of assessing credibility:

The standard credibility instruction tells the fact-finder to consider the witness’s strength of memory, ability in the described circumstances to see and hear, and the clarity with which he is able to recall events. Tone of voice, shades of expression, and gestures are also to be considered. Motive and interest are said to create bias. The natural and acquired experience that an observant person uses to form an opinion of whether to trust the veracity of someone in the important transactions of his own life is said to be the most important qualification of all....

....internal coherence is critical in evaluating credibility. When the actions of the persons involved are shown to be in accordance with their nature or characters, when they do the kinds of things people will do (consistent with probability or necessity), credibility is enhanced....

Persuasion is determined by the strength, not the volume, of the evidence. If what the lawyer seeks to prove is suspect or differs from ordinary experience, it must be broken down into constituent parts that do reflect normality. For a statement to be believed it must fit; the story in which it takes place must be coherent and plausible. What the fact-finder believes is what resonates with his understanding of life. More than analytical rigor, judging credibility requires imagination and empathy for the human condition.

Is it "coherent and plausible" that a man chained to the floor, blindfolded, undergoing physical abuse and threat, with the concordant physiological and psychological consequences of such abuse on a person's sensorium, will have no difficulty in recalling all aspects of his abuse?

Bias and Government "Experts"

A final word about the use of government "experts" in this case should not go unnoted.

Judge Lee's bias in the Ali case could be determined from the very moment that he allowed the prosecution to use Dr. Gregory Saathoff as a psychiatric expert. As Judge Lee himself noted, Dr. Saathoff is "a consultant to the FBI." Given the prominence of FBI testimony in the case, one would think that the presence of potential bias by use of someone paid by the FBI would eliminate him from consideration as an expert. Sadly, I am told by someone with some knowledge of federal court procedures that while a definite conflict of interest, this kind of use of government-linked professionals as "experts" in national security case is not unknown. That doesn't make it right, however.

Dr. Saathoff was, by the way, the government expert used in the recent prosecution of Mansour Arbabsiar. He was also provided psychiatric evaluations and testimony in the cases of Dr. Aafia Siddiqui, and former Guantanamo detainee Ahmed Khalfan Ghailani.

Dr. Saathoff has indulged in conflict-of-interest examinations in the past. In late 2009, U.S. District Court for D.C. Judge Royce C. Lamberth tagged Saathoff to write a postmortem psych eval on purported anthrax terrorist Bruce Ivins. According to the L.A. Times, Saathoff, who headed up Lamberth’s ersatz Expert Behavioral Analysis Panel on Ivins, “served as an FBI consultant during the anthrax investigation,” raising basic conflict-of-interest questions. It was no surprise that Saathoff and his partners found Ivins to be as mentally disturbed as the FBI portrayed him.

Nor am I the first to raise issues about Saathoff's conflict-of-interest problems, as this article in Clinical Psychiatry News relates.

The case of Ahmed Abu Ali represents an abomination of justice in a variety of different ways, and was in the past a subject of intense media scrutiny. See here and here for examples. When it comes down to issues of credibility, it is not Mr. Ali who is not credible, but the actions of the justice system itself. In the name of prosecuting the "war on terror," the government has revealed itself as cloaked in ignorance, addicted to unfair procedures, and allied to torturing states, even as the innocent are left to fates worse than death itself.

Cross-posted from The Dissenter/FDL

Gitmo Detainee’s Body Returned to Yemen, New Details on His Death Revealed

crossposted from The Dissenter/FDL

U.S. Southern Command (SOUTHCOM) said today that the body of Allal Ab-Aljallil Abd al-Rahman Abd (aka Adnan Farhan Abdul Latif) was repatriated to Yemen. The SOUTHCOM statement did not indicate the date or time the body was returned, nor who received the remains.

On November 26, Jason Leopold at Truthout broke the story that Latif’s death would be attributed to suicide. Two days later, Charlie Savage at The New York Times reported that the autopsy would show Latif, who supposedly was found unconscious in his cell on September 8, died from an overdose of psychiatric medication.

Meanwhile, Latif’s body languished at a US Air Force base in Germany, supposedly the object of a dispute between the Yemen and U.S. governments over the former receiving both an autopsy and the results of the full U.S. investigation into the death. The autopsy report was sent to Yemen on Nov. 8. Subsequently, the Yemen government said the body was expected to be sent to them any day, but the U.S. government said the hold-up over release was on the Yemen side. Meanwhile, Latif’s family in Yemen could get very little information about what was going on.

“Acute Pneumonia”

SOUTHCOM’S statement is the first official announcement about the cause of Latif’s death. As terse as it is, it does include somewhat surprising new information.

The medical examiner concluded that the death was a suicide. Mr. Latif died of a self-induced overdose of prescription medication. The medical examiner also concluded that acute pneumonia was a contributing factor in his death.

The revelation that, according to the US military, “acute pneumonia was a contributing factor” to the death raises a host of questions. While pneumonia can develop quite quickly, it is worth noting that Captain Robert T. Durand told Jason Leopold in a statement back on October 8 that Latif had been “medically cleared for transfer to Camp 5″ only a few days before his death. (Thanks to Jason for pointing that out to me.) Camp 5 is a high-security block at the Cuba-based prison, and Latif was reportedly in solitary confinement in a disciplinary wing of the facility.

Even if Latif looked well enough for transfer from the Detention Hospital where he had been held, there is a new question as to how his medical condition went unnoticed when the detainee is checked on multiple times a day, and indeed, per hour. It is also the case that the detainee’s cell is monitored by 24-hour video surveillance. Jason Leopold and I detailed in an article the other day just how difficult it would have been for Latif to have hoarded medications under such a strict regime.

The symptoms of acute pneumonia, moreover, are usually fairly dramatic — shaking, difficulty breathing, coughing — and one wonders why in the day or so before he died he had not been medically attended for pneumonia. How did that go unrecognized? Latif complained in meetings with his attorney that medical care and withholding of medications from hunger strikers in particular was a way Guantanamo authorities tried to control or break prisoners.

Medical abuse?

Other researchers have also documented serious problems with medical care at Guantanamo. In an April 2011 article for PLoS Medicine, Dr. Vincent Iacopino, senior medical advisor to Physicians for Human Rights, and Dr. Stephen Xenakis, a psychiatrist and retired US Army Brigadier General, wrote:

Medical doctors and mental health personnel assigned to the US Department of Defense neglected and/or concealed medical evidence of intentional harm. The full extent of medical complicity in US torture practices will not be known until there is a thorough, impartial investigation including relevant classified information. We believe that, until such time as such an investigation is undertaken, and those responsible for torture are held accountable, the ethical integrity of medical and other healing professions remains compromised.

The U.S. government has long contended that detainees are treated humanely, and that medical issues are given as much care as that of any U.S. military personnel.

Further information from DoD about the circumstances surrounding the repatriation and the autopsy result has been difficult to obtain, as the voice mailbox at the Public Affairs Office of the Secretary of Defense (OSD-PA) is “full.”

However, late today, I did receive an email back from an unnamed Duty Officer, Defense Press Office. I had asked SOUTHCOM a number of questions, including what medications Latif supposedly overdosed with; when Latif was diagnosed with pneumonia; why had he been “medically cleared” earlier and by whom; and why the body was finally released and what its disposition would be once in Yemen.

OSD-PA replied, “Jeffrey, the US Southern Command press release represents the extent to which the Department is currently prepared to publicly discuss the matter. Until such time as any future statements by the Department may be made, we refer you to the Yemeni government. Thank you.”

Meanwhile, the message machine at the press affairs office at the Yemen Embassy in Washington, D.C. also says it is “full” and can’t currently take messages. An email query to the embassy had not been returned at time of publication for this article.

[UPDATE, 12/16/12, 8:00 AM: Yemen embassy spokesperson Mohammed Albasha returned my queries early Sunday morning via Twitter. Asked when the family might be receiving Latif's remains, and whether there were any plans for a second autopsy, Albasha replied, "subject is now between the family and the state[.] not sure what or when the next step will be executed."]

In a brief post at Emptywheel, Marcy Wheeler notes the irony of the SOUTHCOM press release reiterating the statement DoD always makes, viz. “Joint Task Force Guantanamo continues to provide safe, humane, and lawful care and custody of detainees. This mission is being performed professionally, transparently, and humanely by the men and women of Joint Task Force Guantanamo.”

You could basically take issue with every modifier SOUTHCOM uses to describe JTF-Gitmo’s mission and its treatment of prisoners. Wheeler focuses on the ostensible “transparency”:

It took two and a half months to learn Latif committed suicide. We’re only now learning he suffered from acute pneumonia. And we still do not officially know how badly his head injury–the one the government claims didn’t really exist so they could keep him detained–expressed itself while at Gitmo, much less the drugs he was being given, ostensibly for that and mental health problems.

Let me focus for just a moment on the “safe and humane” claim.

Other Gitmo Deaths in the Light of What Is Known About Latif

Latif’s death and the secrecy surrounding it reminds me of the way other deaths at Guantanamo have been treated. Last February, I noted in a Truthout article that the released autopsies of two purported Guantanamo “suicides” had raised real questions about their treatment and the way they died. (Later, the UN Special Rappporteur for Extrajudicial, Summary and Arbitrary Executions announced he was going to look into these cases.)

One detainee, Abdul Rahman Al Amri, was, like Latif, found in his isolation cell at Guantanamo. Al Amri was reportedly discovered with his hands tied behind his back. The autopsy report stated, “Investigation reveals that a razor blade from a razor was used to cut strips from one or more bed sheets and a ligature was fashioned by braiding these strips together.”

But as I reported at the time, there were strict rules around the possession of razors by detainees. How had Al Amri gotten a razor, hidden it from the many searches, and assembled the ligature (out of what were supposedly “tear-proof” sheets, by the way) with all the surveillance (including video surveillance in the cell)?

The revelation reported by Jason Leopold and I in a story the other day --  that Latif claimed in a letter to his attorney David Remes in May 2010 that guards were placing “contraband” article in his cell that could be used for self-harm -- may have some relevance to the Al Amri case.

Latif wrote:

Furthermore, and to make you believe that they want me to die and to kill me; they prevented me from having anything that can help me live normally. They don’t give me books, a blanket, soap, medical supplies that I need for my hearing, eye glasses, tooth paste, medical shoes or a neck pillow. Instead they give me contraband items like a spoon to hurt myself with it right after all the pressure they exerted on me as I mentioned in the beginning of this letter. They even gave me a big pair of scissors. It was given to me by the person responsible for camp five. This made me ask for the police.

Could Al Amri have been given a razor while guards looked the other way? Like Latif, Al Amri was a hunger striker and considered a troublemaker.

So was Mohammad Ahmed Abdullah Saleh Al Hanashi, who was found dead in an isolation cell in the psychiatric ward, where surveillance is supposed to be if anything even stricter. Al Hanashi was said to be depressed, and upset that he was not allowed a walker. He supposedly strangled himself to death with the elastic from his underwear — except, as I reported, the kind of underwear in use at Guantanamo at this time did not have elastic bands. Not surprisingly, the actual ligature for the “suicide” was never provided to medical examiners. Naval investigators provided an sample for the autopsy they said was similar to what Al Hanashi used. Where was the original ligature?

Of course, there was also the incredible reporting by Scott Horton at Harper’s, which relied on reports by former Guantanamo Army guard Joe Hickman and other guards to show that the official government story about the deaths of three Guantanamo suicides in June 2006 was not coherent. (Investigators at Seton Hall School of Law’s Center for Policy and Research also examined critically the government report.)

While I have FOIA requests for the NCIS investigations of both the Al Amri and Al Hanashi deaths, nothing has been released as yet. The Al Hanashi request is nearly a year old now.

On November 28, the ACLU filed FOIA requests for the autopsy reports for the last three prisoners to die at Guantanamo: Latif, along with Awal Gul, and Hajji Nassim (also known as “Inayatullah”). The three died on September 8, 2012, February 2, 2012, and May 18, 2011, respectively. While not much has been written about the latter two cases, there are important lingering questions about these deaths as well. Gul’s family did not accept the verdict of death by heart attack, which Nassim’s death seemed especially strange, as he supposedly hanged himself outside in the recreation yard, where there are plenty of guards present.

Little bit by little bit we are learning more about the death of Adnan Latif, but there is much more to learn. I hope the release of Adnan Latif’s body and its final internment will help bring his family some emotional release. They want to know what happened to their brother and son. They deserve to know. The American people, too, deserve to know what happened as well.

But on one level we already know, whether by his own hand or by his horrendous treatment and the living death assigned him via the Obama policy of indefinite detention, Guantanamo certainly killed Adnan Latif.

The Struggle to Close Guantanamo

Next month, the Guantanamo prison will go into its 11th year of holding so-called “war on terror” prisoners. Since Obama’s reelection, human rights groups have started to put pressure on President Obama to hold true to his January 2009 promise to close the prison.

In an Twitter exchange with me last month, Zeke Johnson, Director of Amnesty International USA’s Security with Human Rights Campaign, said prisoners like former British resident Shaker Aamer could be transferred out of Guantanamo under the NDAA’s section 1028. Johnson said Congress should “withdraw [the] AUMF (incl from NDAA) and ‘global war’ idea.”

Furthermore, Zeke wrote, “all detainees must either be charged with recognizably criminal offenses and prosecuted fairly in civilian court without the death penalty, or released to countries that will respect their human rights. And there must be accoutntability for torture & other abuses (investigation, prosecution and remedy).” Johnson indicated more regarding AI’s position could be accessed at their website.

Recently, AI has announced its Write #4Rights campaign. It is asking people to get involved in the case of Guantánamo detainee Hussain Salem Mohammed Almerfedi. Almerfedi, like Latif, a Yemeni cleared for release by both Bush and Obama administrations, has been held for over nine years. Originally, AI meant to highlight Latif as part of their campaign, but that was not to be.

How many more like Latif will die, victimized by a cruel and insane system, by what the assistant commandant of the U.S. Army Intelligence Center and School at Ft. Huachuca once called “America’s ‘Battle Lab’ in the war on terror.”

Open North Korean Political Prison Camps for Inspection by International Commission

Amnesty International is reporting on the increasing scope of the political prison camps, really concentration camps, in North Korea. If the reports are true, they are a monstrosity, and they should be shut down.

For those who think this is a job for the United States, think again. The U.S. itself is implicated in the torture and murder of 100,000s in recent years, and millions over the past five decades or so, i.e., since the North Korean camps were built. A recent South Korean "truth and reconciliation" commission established U.S. complicity in mass killings of over 100,000 leftists and others in South Korea before the start of the Korean War.

The U.S., of course, has its own problems with torture, and the recent assassination of Osama bin Laden by U.S. Special Forces has reignited the mendacious debate over the effectiveness of torture by the former minions of the Bush administration. Few, in the U.S. anyway, are questioning the legality of the U.S. extrajudicial murder of bin Laden and other presumed terrorists. (That's not the case in Europe, as Glenn Greenwald pointed out).

The world is in a heap of trouble, as there is no established state power on this planet that really gives a damn about human rights, and even worse, uses pious words about human rights to conquer and destroy other lands, as the U.S. did in Iraq. (See Michael Otterman's incredible book, Erasing Iraq: The Human Costs of Carnage, written with Paul Wilson and Richard Hill.)

International commissions formed of workers unions, associations and other civil organizations from around the world should be formed to assess and gather information about torture and other crimes against humanity in countries around the world. These commissions should be free of any governmental interference, and be beholden to know particular NGO organization, as well.

From the AI article:

Amnesty International has published satellite imagery and new testimony that shed light on the horrific conditions in North Korea’s network of political prison camps, which hold an estimated 200,000 people.

The images reveal the location, size and conditions inside the camps. Amnesty International spoke to a number of people, including former inmates from the political prison camp at Yodok as well as guards in other political prison camps, to obtain information about life in the camps.

According to former detainees at the political prison camp at Yodok, prisoners are forced to work in conditions approaching slavery and are frequently subjected to torture and other cruel, inhumane, and degrading treatment. All the detainees at Yodok have witnessed public executions.

“North Korea can no longer deny the undeniable. For decades the authorities have refused to admit to the existence of mass political prison camps,” said Sam Zarifi, Amnesty International Asia Pacific Director.

“These are places out of sight of the rest of the world, where almost the entire range of human rights protections that international law has tried to set up for last 60 years are ignored.”

“As North Korea seems to be moving towards a new leader in Kim Jong-un and a period of political instability, the big worry is that the prison camps appear to be growing in size.”

Amnesty International believes the camps have been in operation since the 1950s, yet only three people are ever known to have escaped Total Control Zones and managed to leave North Korea. About 30 are known to have been released from the Revolutionary Zone at Political Prison Camp in Yodok and managed to leave North Korea. According to the testimony of a former detainee at the revolutionary zone in the political prison camp at Yodok, an estimated 40 per cent of inmates died from malnutrition .between 1999 and 2001.

Satellite images show four of the six camps occupying huge areas of land and located in vast wilderness sites in South Pyongan, South Hamkyung and North Hamkyung provinces, and producing products ranging from soy bean paste and sweets to coal and cement.

A comparison of the latest images with satellite imagery from 2001 indicates a significant increase in the scale of the camps.

In just one camp, Kwanliso 15 at Yodok, thousands of people are believed to be held as "guilty-by-association" or sent to the camps simply because one of their relatives has been detained.

The majority of prisoners, including some of those ‘guilty-by-association’, are held in areas known as ‘Total Control Zones’ from which they will never be released.

A significant proportion of those sent to the camps don’t even know what crimes they’re accused of.

Amnesty International spoke to former detainees of the political prison camp known as Kwanliso 15 at Yodok.

A former inmate, Kim, told Amnesty International: “Everyone in Kwanliso witnessed executions. When I was an inmate in Kwanliso15 at Yodok, all those who tried to escape were caught. They were interrogated for two to three months and then executed.”

The "New" Egypt: "Virginity Tests" for Protesters

Originally posted at MyFDL/Firedoglake

While I've little time to blog today, this particular story seemed especially worthy of promotion. Amnesty International has sent the following mailing to its supporters (emphasis in original):

The Egyptian military may have just hit a disturbing, new low: at least 18 women who were arrested during a peaceful protest in Tahrir Square on March 9 said they were forced to take "virginity tests".

Those women were threatened with charges of prostitution if they "failed" the tests. One woman, who said she was a virgin but whose test supposedly proved otherwise, was beaten and given electric shocks.

Journalist William Fisher at The Public Record rightly notes, "I know this sounds like something out of Torquemada in the 15th Century or Mengele in the 20th. But it’s neither. It’s post-Mubarak Egypt in the second decade of the 21st Century."

Twenty-year-old Salwa Hosseini told Amnesty International that after she was arrested and taken to a military prison in Heikstep, she was made, with the other women, to take off all her clothes to be searched by a female prison guard, in a room with two open doors and a window. During the strip search, Hosseini said male soldiers were looking into the room and taking pictures of the naked women.

The women were then subjected to ‘virginity tests’ in a different room by a man in a white coat....

According to information received by Amnesty International, one woman who said she was a virgin but whose test supposedly proved otherwise was beaten and given electric shocks.

‘Virginity tests’ are a form of torture when they are forced or coerced.

Amnesty International is asking people to write to Hillary Clinton to get her "to use her influence to demand immediate action." I am less sanguine that she will either a) do that, or b) really give a damn.

Those who thought the "revolution" was over don't understand that it's hardly begun, and can easily be derailed onto the same old paths. The military in Egypt is not to be trusted, and those who think it will reform that country are terribly mistaken. What will it take to end illusions in such ideas?

Amnesty International Panel Discussion with Former Guantanamo Detainee

An exciting and important event in Berkeley this week:

Amnesty International USA would like to invite you to attend an exceptional panel discussion on Torture and Guantanamo Bay.  In recognition of the two years that have passed since the Presidential Order to close Guantanamo, the goal of this event is to bring attention to the human rights violations that have occurred at Guantanamo Bay and to discuss its intended closure.

This expert speakers' panel will feature Omar Deghayes, a former Guantanamo detainee, who will participate via video conference from Brighton, England; Attorney Candace Gorman, whose Civil and Constitutional Rights work has included representing two Guantanamo detainees; and Professor Almerindo Ojeda from the UC Davis Center for the Study of Human Rights in the Americas, which hosts the Guantanamo Testimonials Project.  There will be a short Q&A session after the panel discussion.

The event will be held at the University of California Berkeley on Wednesday, January 26th from 7:30pm - 9:00pm at 2050 Valley Life Sciences Building. 

The event is co-sponsored by the UC Berkeley Human Rights Center, Health Professionals Against Torture, Survivors International, United Nations Association USA East Bay Chapter and the Boalt Alliance Against Torture.  The event is free and open to the public.

For more information about the event please contact William Butkus, Amnesty International Field Organizer wbutkus@aiusa.org or 415-288-1800

For a Fair, Just UK Torture Inquiry

Amnesty International and eight British NGOs have written a letter to the Rt. Hon. Sir Peter Gibson, who has been picked -- despite his close ties to the intelligence world -- to head the UK inquiry into alleged UK involvement in the mistreatment of detainees held abroad. Here's a link to the HTML announcement page on the joint letter at Amnesty International. Here's the link to the PDF of the letter.
What follows are selected portions of the letter, dated 8 September 2010:

Dear Sir Peter

Following the announcement by Prime Minister David Cameron on 6 July of an inquiry into allegations of UK involvement in the mistreatment of detainees held abroad, the AIRE Centre, Amnesty International, British Irish RIGHTS WATCH, Cageprisoners, Justice, Liberty, Redress, Reprieve, and the Medical Foundation for the Care of Victims of Torture, write to offer a number of constructive comments to ensure the success of the inquiry.

A sufficiently empowered and transparent inquiry could discharge the United Kingdom’s duty to effectively investigate damaging allegations of knowledge and/or involvement by state actors or agents in the torture, ill-treatment or rendition of individuals that have arisen in the last decade. Such an inquiry could also play an important role in clarifying how involvement in torture, ill- treatment or rendition might be prevented in the future.

It is incumbent on governments to promptly and effectively investigate all allegations of torture and other related human rights abuses. In order to comply with basic human rights standards, it is essential that the inquiry be:

(1) Prompt. The earliest events that this inquiry must consider occurred at least a decade ago. Delay has increased the damage caused by allegations of involvement in torture and ill- treatment and has already reduced the potential for the inquiry to uncover the truth.

(2) Independent. The persons responsible for and carrying out the inquiry must be fully independent of any institution, agency or person who may be the subject of, or are otherwise involved in, the inquiry. Where allegations of involvement in torture and ill-treatment have been made, an independent response is particularly important in order to preserve confidence in the administration of justice.

(3) Thorough. The inquiry must be sufficiently empowered, staffed, and resourced to be thorough, wide-ranging and rigorous. It must be able to pronounce on state responsibility for knowledge and involvement in the serious human rights violations that have been alleged and to identify any individuals responsible for such abuses, including establishing the responsibility of superior officers for crimes committed by subordinates under their effective control. The inquiry must be capable of determining whether any conduct was unlawful and thus must be empowered to: secure all relevant evidence and testimony; interview victims and their families; question any eye witnesses; take statements of any officials alleged to have been involved in violations; secure appropriate medical reports; and consider any evidence which implicates any public officials or agents of the state.

(4) Subject to public scrutiny, with the participation of victims. The inquiry must be open to adequate public scrutiny. Survivors or victims must be involved in the process to ensure their right to effective investigation and redress, and special measures must be adopted to ensure this participation is supportive, safe and effective; non-governmental organizations have an important role to play in this regard. The participation of survivors, victims and civil society ensures the adherence of the inquiry to the rule of law, prevents any appearance of collusion in or tolerance of illegal acts, and helps safeguard victims’ rights to an effective remedy and reparations....

In order for the inquiry to fulfil its purposes, we recommend the following:

(1) The inquiry must appoint a strong legal team with sufficient expertise to deal with the range of human rights, intelligence, and secrecy issues that it is likely to face;

(2) The presumption must be that each stage of the inquiry will be public, with as much evidence as possible to be heard and considered in public;

(3) The inquiry must ensure that survivors and victims have standing as parties to the inquiry and have a right to legal representation funded by the inquiry. Survivors, victims and their representatives must be kept informed of all information relevant to the investigation and have access to hearings and the ability to make submissions;

(4) Other interested parties, including the intelligence services, must also have standing and the right to legal representation funded by the inquiry. They and their representatives must be kept informed of all information relevant to the investigation; and have access to hearings and the ability to make submissions;

(5) The inquiry must require that all relevant documents be disclosed to the inquiry by the government; the head of the inquiry must have the power to decide whether or not to make such documents public;

(6) The inquiry must aim to achieve maximum possible disclosure. Any determination that certain information should be kept confidential, including on the grounds of national security, should be made applying limited and precisely defined grounds that are specified in advance; an independent mechanism should be developed to ensure that any decision by the inquiry panel to withhold such information is in the public interest;

(7) The inquiry must ensure that any invocation of secrecy or confidentiality on the part of the government, its agents, or the inquiry does not: prevent an independent, impartial, and thorough investigation of alleged human rights violations; prevent the government and individual perpetrators from being held accountable; prevent a victim from receiving an effective remedy, including reparation; or prevent full and public disclosure of the truth;

(8) The inquiry must be empowered to require the production of evidence, subject to ordinary rules of admissibility, and must also be able to require a person to attend the inquiry to give evidence or to provide a written statement. It must be an offence for a person to fail to do anything that is required of him or her regarding the production of evidence. It must be an offence to do anything to distort or alter evidence provided to the inquiry;

(9) The inquiry panel must request the cooperation of agents and officials of foreign states who can provide relevant evidence, and that the government should support such requests;

(10) The inquiry panel should be empowered to enforce cooperation from corporations doing business in the UK who are alleged to have had knowledge of or been involved in any abuses that are the subject of the inquiry;

(11) It is imperative that the inquiry report be published, and that any redactions for national security reasons be agreed by the inquiry panel and be subject to review by a court. The inquiry must be empowered to not only establish particular facts, practices and policies, but should also consider the adequacy of measures in place to prevent the occurrence of any wrongdoing in the future. The final report must be made public and should at a minimum include the conclusions and recommendations based on findings of fact and applicable law, in sufficient detail to satisfy the requirement of full and public disclosure of the truth about UK responsibility for the human rights violations in question.

Amnesty and the other organization also ask for close NGO participation and scrutiny, as such organizations, deeply involved with the torture issue are "in a position to assist the inquiry in designing its scope and in pursuing certain lines of inquiry." The letter should be read in its entirety, and it is up to U.S. and British civil society to back the clear, reasonable, and essential roadmap for a successful inquiry laid out so well by Amnesty and the other NGOs.

I don't usually ask this, but pass this story or link on where you think it will do the most good. H/T to mzchief at FDL for the story.

The "Non-Lethality" Lie: Tasers Have Killed Hundreds Since 2001

H/T to Stephen Soldz, who has been following news on taser abuse for some time, including this recent report on police tasering a 10-year-old child, with the child's mother's consent no less.

In a posting last Saturday, Soldz highlighted an oped in the Tennessean by Jared Feuer, Southern regional director for Amnesty International USA.

Since 2001, about 400 people have died — 39 this year — after being Tasered by law enforcement personnel in the U.S. Amnesty International believes it is time to reconsider the use of Tasers. We believe this is even more essential as Taser International has issued new recommendations calling on law enforcement to avoid shocking people in the chest. This is the first time Taser has admitted a potentially serious health risk with the devices, and we believe it underscores our call for a full evaluation of their use....

The reasons for these deaths are an open question; what we do know is that a Taser gun exposes the victim to a 50,000-volt shock that continues until the officer releases his or her finger or the battery depletes. Such a shock overrides the body’s central nervous system, causing uncontrollable contraction of muscles and instant collapse. In a manufacturer’s study, it was found that additional shocks are required one-third of the time.

Because law enforcement officers do not know the medical history or condition of those being Tasered, they are not trained, required or able to determine the potential impact of the shock. The result appears to have been fatal for hundreds of people. It is for this reason that Amnesty International has urged that Taser use be limited to situations in which officers are faced with an immediate threat of death or serious injury that cannot be contained through less extreme options, if not suspended altogether pending an independent study to determine why people have died after being Tasered.

Tasers should be outlawed. Instead, police forces are turning in greater and greater numbers to this supposed "non-lethal" force alternative. But its non-lethality is a lie, as this story shows.

Of course, the military is interested, too, as this recent story at Wired explains:

A new electroshock weapon being developed by Taser could zap people up to 175 feet away — and keep on applying pain for as long as three minutes in a row. Which is pretty tough to take, since it only takes a second or two of shocks to make most people cry out in agony.

The new 40mm projectile resembles a super-sized version of the shotgun-fired XREP Taser projectile. And like the XREP, it will attach itself to the target and incapacitate him or her with a series of electric jolts....

“This project will likely increase the standoff range by at least a factor of five over already fielded electromuscular devices,” says Wes Burgei, a project engineer at the U.S. military’s Joint Non-lethal Weapons Directorate, which has given Taser $2.5 million to work on the weapon.

Under the auspices of the new Democratic president, Barack Obama, the worst aspects of the U.S. militarist state and expansion of police powers continues unabated from the Bush years.

What's really news is that the so-called progressive world hasn't yet awakened to this political reality. Thanks to Amnesty, ACLU, CCR, PHR and a handful of other human and legal rights agencies for spending the time and effort to fight back. Have you, dear reader, taken time out to donate money to one of these fine agencies?

Sleight of Hand: Obama's Military Commissions Redux

Peter Finn at the Washington Post appears pretty confident about it:

The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections, government officials said.

The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly.

This news comes after Andy Worthington's scoop that Chief Prosecutor of the Military Commissions, Col. Lawrence Morris, "is retiring from active duty, and will be replaced by Capt. John Murphy (US Navy Reserve)." Murphy was the lead prosecutor in the case of Salim Hamdan, Osama bin Laden's driver, who despite Murphy's plea for a 30-year-sentence for the small fry Hamdan, got a minimal sentence and was sent back to Yemen last November.

Murphy is also a member of the prosecution team for Omar Khadr, the Canadian famously arrested on the battlefield at age 15 and shipped back to Gitmo as a dangerous "terrorist." As Worthington notes:

As Khadr’s case is one that, outside of the Pentagon and the corridors of power in Canada, has attracted universal condemnation –- primarily because of the Bush administration’s neglect and abuse of a juvenile, and because of well-chronicled attempts by the prosecution to suppress evidence vital to his defense –- it may well be that, as a result, Capt. Murphy will pursue an aggressive agenda if the Obama administration decides to ignore all sensible advice to the contrary, and proceeds to revive the Commissions, rather than pursuing those cases worthy of trial (somewhere between 25 and 50, according to the best estimates) in federal courts on the US mainland.

The Washington Post story, and an earlier one in the New York Times, appear to corroborate Worthington's fears about where the military commissions are going.

Amnesty International and ACLU spokesmen have already denounced the proposed "changes". "'It's going to tarnish the image of American justice again,' said Tom Parker, a counterterrorism specialist at Amnesty International."

bmaz over at Emptywheel/FDL has produced a succinct takedown of the Obama proposal:

The rules would "block the use of evidence obtained from coercive interrogations". All evidence from coercive interrogations or just some evidence from coercive interrogations? Will the ban be on any coerced statements and fruits thereof, or only those that came from that particular defendant? Will coerced statements from others be allowed, and if so to what degree? What about the fruit of coercion? Once you have tortured an individual, how do you not term any information obtained while he is still detained subsequent to that torture to not be the product of coercion? The reliance on "clean teams" and/or regular interrogators subsequent to torture to sanitize the proceedings is a joke. It is crystal clear that the Obama Administration is desirous of sliding in a lot of evidence this way, it is why they have fallen back onto the tribunals.

This idea of evidence scrubbed clean of its torture taint reminds me of Binyam Mohamed’s interview with the Daily Mail only two months ago (it already seems like an eternity):

[Binyam Mohamed] reached Guantanamo in September 2004.

There, the interrogations continued but there had been another shift.

He says: ‘They said they were worried I would tell the court that I had only confessed through torture. They said now they needed me to say it freely.

‘We called them the clean team, they wanted to say they had got this stuff from a clean interrogation.’

bmaz continues:

The rules would "tighten the admissibility of hearsay testimony". Well, as stated above, this is not the case in the least; in fact, the rules are specifically designed to allow for wide ranging admissibility of hearsay. Again, that is the whole purpose here. The use of "hearsay" here is going to be designed to protect sources and means, conceal identities of the agents of torture and rendition and allow for selective use of classified information without challenge. In short it is nothing but a scam to deny the defendant the opportunity to confront and cross-examine his accusers and the evidence propounded against him; the very principle that is the bedrock of minimal due process and fundamental fairness.

The rules would "allow detainees greater freedom to choose their attorneys". You've got to be kidding me. Seriously? What a load of dung. The Obama Administration has proved themselves every bit as obstreperous in relation to allowing effective assistance of acceptable counsel to the detainees as the Bush/Cheney crew was, witness the dogged determination to remove Kuebler in the Khadr case. How, pray tell, are detainees that have been locked up in the hell hole of Guantanamo for five plus years, tortured, isolated, feared up, egoed down, repeatedly told that any lawyer they speak to is an imperial American spy out to get them etc. going to meaningfully participate in obtaining counsel of their choice? And that is before you get to the fact that the US government has extremely narrow acceptability criteria for attorneys that are even able to be contemplated for participation in the tribunals.

I don’t think, however, that the resurrection of the military commissions is a manifestation of laziness on Obama’s part. Nor is it a failure of leadership, per se. The Military Commissions are a constituent part of the torture program which, even now, is not dismantled, and continues in somewhat attenuated form as part of the Army Field Manual. It is also part of the cover-up of the previous torture program, allowing for the use of torture evidence without the political explosion that would take place by having to release or acquit “terrorists” (really “accused terrorists,” but who cavils about such things in our modern America anymore?) because the evidence was tainted by torture, and therefore inadmissible.

All signs point to the fact that when it comes to national security and military matters, Obama is compliant to the wishes of the Pentagon, that he has no real policy of his own. For that matter, has Obama ever rejected the Bush-era 2002 document, The National Security Strategy of the United States of America, which famously put forth the current U.S. doctrine of pre-emptive war and world U.S. military supremacy? If he did, I missed it somehow. But then, there is a “process”:

By law, Obama is required to submit a comprehensive national security strategy report within 150 days of taking office. A Defense Department briefing slide reviewed by Inside the Pentagon suggests the new team might develop high-level planning guidance next spring, followed by a new national security strategy next summer. In early 2010, the Obama team’s first QDR report would be issued, along with a National Defense Strategy and National Military Strategy, according to the slide.

If the new proposal for military commissions hangs true, then I think we are getting a sneak peek at the politics that will drive the Obama's new National Security Strategy report, and I don’t expect a big difference from what we have seen, at least not when it comes to the "Global War on Terror."

The Militarization of Humanitarian Aid in Afghanistan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What are PRTs?

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

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

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

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

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

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

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

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

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

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

More Confusion on Renditions: The Role of Ostensibly Liberal Bloggers

There's a lot of smoke spewing up from the bits and pieces of Bush's leftover torture program, as the Obama administration is trying to refashion policies around apprehension, detention and interrogation of prisoners in what used to be called (or still is) the "Global War on Terror."

The foulest smell issues from the controversy over using cruel, inhuman, and degrading and/or torture techniques in the Army Field Manual (AFM). Obama, supported by some human rights organizations, especially Human Rights Watch and Human Rights First, has proposed making the AFM its "single standard" for all interrogations, including those done by the CIA.

While the CIA publicly balks, one wonders if they are that unhappy with the AFM's Appendix M, which codifies the old CIA interrogation doctrine of regression of the prisoner's personality through use of solitary confinement (isolation), sleep deprivation (debility), sensory deprivation, and a harsh form of "Fear Up" (dread)? In any case, Appendix M violates the very international documents Obama claims to uphold. That contradiction cannot hold, and other human rights groups, like Physicians for Human Rights and Center for Constitutional Rights, have publicly called for the elimination of Appendix M prior to acceptance of the AFM as any kind of interrogation template.

But if the AFM is the foulest, the controversy over rendition is the most opaque and contentious. Liberal bloggers have jumped on the bandwagon defending President Obama's Executive Order calling for a review of "the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States...." Forget that Obama did not outlaw the practice of rendition. But this is because, according to certain liberal bloggers, and a few human rights spokespeople (like Tom Malinowski of Human Rights Watch), "Under limited circumstances, there is a legitimate place" for renditions.

These individuals -- and Scott Horton and Hilzoy are two prominent such bloggers, followed somewhat by the more ambivalent soul-searching of the otherwise usually precise Glenn Greenwald on the issue -- believe that extraordinary renditions are something qualitatively different than regular or normal renditions. While U.S. Supreme Court decisions may see some distinction, these are about renditions "to justice" in a U.S. court (the Ker-Frisbie doctrine). No one is arguing that the renditions being considered by the U.S. today are these kinds of renditions, so the argument about "good" or "lawful" renditions is specious, and meant to confuse or muddy the waters.

In a truly extraordinary confluence of opinions, these same liberal bloggers either support the AFM as is or remain silent about the question of abuse in the Army Field Manual. Why the silence and/or support for such a heinous set of procedures? That's a question to be taken up another day.

According to Horton et al., extraordinary renditions are war crimes, because the government sends prisoners to foreign countries to be tortured. (That is certainly correct, so far as that goes.) "Legal" renditions -- as defined by Richard Clarke in a recent article, whose opinion was specifically endorsed by Horton and the anti-torture blog, Back to Our Senses -- are examples of "renditions performed by the American government [and] are legal, effective, and done within the scope of human rights" (emphasis added). And if you think differently, then you are "ridiculously misinformed", a "buffoon," a "moron" (the latter by a Daily Kos commenter to yours truly).

Truly, you can get a lawyer to argue that black is white and white is black, if you pay him or her enough, or if they have a well-entrenched political agenda.

"Expert" Opinions and the Rendition Question

Most of what passes for political commentary these days relies on the received "wisdom" of experts. So, if Scott Horton, an "expert" in international law, says that there is a "distinction between 'extraordinary renditions' and 'renditions'" (one is supposedly legal, if rare, the other is a serious crime), then it must be true. No one thinks to ask other authorities, and the sides line up based upon loyalty to their favorite authority.

There may be no other way around this, especially for non-lawyers like myself. And even among legal experts there may be profound differences of opinion, which hopefully are decided by respected and powerful courts, like the U.S. Supreme Court, or an appropriate international juridical body.

When I was looking to form an opinion on rendition, I did not just read a few blog entries by my favorite blogger or columnist, as trustworthy as I may usually find them. I did some of my own research and reading. It's really worth the effort. I rarely found "extraordinary rendition" separated from that of "rendition," unless the focus of a document were purely on the Bush Administration practice of renditions to torture. The latter fact is part of definitional problem involved in discussing this issue, as "extraordinary rendition" has become synonymous with Bush's program, but in fact E.R. existed prior to Bush's tenure, i.e., as a covert program used as a tactic, since at least 1995.

What I found in my search was plenty of examples in the law explaining the differences between lawful rendition, which we call extradition, and abduction. Here's a few, courtesy of Justice Stevens:

Extradition treaties prevent international conflict by providing agreed upon standards so that the parties may cooperate and avoid retaliatory invasions of territorial sovereignty. According to one writer, before extradition treaties became common, European States often granted asylum to fugitives from other States, with the result that "a sovereign could enforce the return of fugitives only by force of arms . . . . Extradition as an inducement to peaceful relations and friendly cooperation between states remained of little practical significance until after World War I." M. Bassiouni, International Extradition and World Public Order 6 (1974)

If you are enforcing your New World Order, I suppose you don't care about friendly cooperation between states. But how would Americans react if Afghanis kidnapped Bush or Cheney for crimes and brought them back to Afghanistan for trial, or even more to the point, delivered them over to the North Koreans for interrogation? Or how about Cubans kidnapping Luis Posada Carriles, who bombed Cubana flight 455 in September 1976 (with CIA foreknowledge, by the way), and today resides in the U.S.? Why not just junk all treaties and let the rule of might makes right the ultimate arbiter?

When Abraham Sofaer, Legal Adviser of the State Department, was questioned at a congressional hearing, he resisted the notion that such seizures were acceptable: " `Can you imagine us going into Paris and seizing some person we regard as a terrorist . . .? [H]ow would we feel if some foreign nation--let us take the United Kingdom--came over here and seized some terrorist suspect in New York City, or Boston, or Philadelphia, . . . because we refused through the normal channels of international, legal communications, to extradite that individual?' " Bill To Authorize Prosecution of Terrorists and Others Who Attack U. S. Government Employees and Citizens Abroad: Hearing before the Subcommittee on Security and Terrorism of the Senate Committee on the Judiciary, 99th Cong., 1st Sess., 63 (1985).

The Congressional Research Service, which produces material so that Congress can understand important legislative issues, has made it clear that its own analysis of rendition was about extrajudicial seizures. So did Amnesty International in a document on "'Rendition' and secret detention.' I think AI really described the salient problems I have with rendition, whether it's rendition to torture or not (assuming one can really determine what will happen to a prisoner who has been kidnapped and delivered to a foreign, or even domestic, penal or governmental or intelligence agency). I will quote it here somewhat at length (emphases added):

Amnesty International uses the term "rendition" to refer to a variety of practices by the US authorities involving transfers of individuals from one country to another, without any form of judicial or administrative process such as extradition. These practices, usually carried out in secret, include transferring "war on terror" detainees into the custody of other states, assuming custody of individuals from foreign authorities and abducting suspects on foreign soil.

The practice of transferring a detainee from US custody to the custody of a foreign state is usually called "extraordinary rendition" in the USA, and appears to have been carried out by the Central Intelligence Agency (CIA) since 1995....

Some victims of "rendition" have later turned up in official US detention centres, such as Guantánamo Bay. Others have simply "disappeared" after being arrested by US agents or turned over to US custody.

It has been reported that the CIA, often using covert aircraft leased by front companies, has flown individuals to countries including Egypt, Jordan, Morocco, Pakistan, Saudi Arabia and Syria. Most of the states to which the USA transfers these individuals are known to use torture and other ill-treatment in interrogations. It is alleged that states which are known to practise torture have been specifically selected to receive detainees for interrogation and that detainees have been threatened by US interrogators that they will be sent to such states.

It has also been reported that victims of "rendition" transferred to US custody from other countries have been held in US-run secret detention centres outside US territory (sometimes called "black sites")....

The US administration has acknowledged it uses "rendition", maintaining that the practice is aimed at transferring "war on terror" detainees from the country where they were captured to their home country or to other countries where they can be questioned, held or brought to justice. It has contended that these transfers are carried out in accordance with US law and treaty obligations....

Amnesty International believes that these practices are illegal because they bypass any judicial or administrative process such as extradition. Under international law, it is illegal to transfer people from one country to another without any kind of judicial or administrative process.

Do you hear that, Scott Horton? Under international law. If you want more detailed legal discussion, please see Matteo M. Winkler's article, When ‘Extraordinary’ Means Illegal: International law and the European Reactions to the United States Rendition Program, Section 3.1 - Can Abduction Be Justified? (Yale Law School Student Scholarship Series, Paper 46). Also see Justice Stevens' dissent in U.S. v. Alvarez Machain, as well as F.A. Mann, "Reflections on the Prosecution of Persons Abducted in Breach of International Law", in International Law at a Time of Perplexity, 1988, Martinus Nijhoff Publishers:

A State which authorizes the abduction of a person from the territory of another sovereign State is guilty of a violation of public international law. This principle is supported by considerable State practice, numerous decisions of municipal courts, and a large body of doctrinal opinion. Its basis is the incontrovertible rule that exercise of physical force by one State without the latter's consent constitutes an excess of international jurisdiction or a violation of the 'principle of respect, which is guaranteed by not only Article 2 of the Charter of the United Nations and other texts, because these merely respond to firmly established and longstanding tenets of customary international law.'

But let us now return to Amnesty International's discussion:

Moreover, most victims of "rendition" were arrested and detained illegally in the first place: some were abducted; others were refused access to any legal process. Many victims of "rendition" have been or continue to be held in prolonged arbitrary detention and they have been or continue to be subjected to enforced disappearance. All of the victims of "rendition" Amnesty International has interviewed have also said they were subjected to torture and other ill-treatment.

"Rendition" usually involves multiple human rights violations, including abduction, arbitrary arrest and detention and unlawful transfer without due process of law. It also violates a number of other human rights safeguards: for example, victims of "rendition" have no possibility of challenging their detention, or the arbitrary decision to transfer them to another country.

"Rendition" is a key element in the global system of secret transfers and arbitrary detention. This system is designed to detain people, often for obtaining intelligence from them, free from any legal restriction or judicial oversight.

We are left with this quandry: why the wide gulf of opinions on rendition? Horton and others can point to ill-informed bloggers, constructing strawmen which they can then easily tear down, all the better to strut their expertise before the admiring crowd. But you won't see them tearing down Amnesty International or Reprieve, who totally oppose all renditions as ignoble and illegal acts of extrajudicial power and injustice. That might alienate some of their readers, who then might investigate for themselves.

What kind of game, we must ask at this crucial time in the fight against torture, including the full panoply of repressive measures routinely used by the Bush Administration, the Pentagon and the CIA, are these liberal columnists playing? Is it anything that different from what the mainstream press has done for years, i.e., toady up to the current administration or the opposition party, the better to keep access to sources? Or is there something more ideological, or even, heaven forbid, more sinister going on there? Is there any connection with the fact that an important civil suit on renditions, which also challenges the U.S.'s state secrets defense, namely Mohamad v. Jeppesen Dataplan, Inc. is about to go to trial? (Glenn Greenwald just interviewed Ben Wizner, the ACLU attorney representing the plaintiffs in the Jeppesen case.) Or is this just about securing future jobs in an Obama administration?

The Eichmann Case

Horton points to the kidnapping of Adolf Eichmann by the Israelis around 50 years ago as an example of "the prototype of an appropriate rendition." Here are the results of Horton's unfortunate example, taken from an article by Raanan Rein in Jewish Social Studies, Spring-Summer 2001 (emphasis added):

The election of Arturo Frondizi as president of Argentina in February 1958 was welcome news to both the Israeli embassy in Buenos Aires and the leaders of the local Jewish community. And he had not lived in the presidential palace for long before their expectations appeared to have been justified. The Jews of Argentina felt a growing sense of security and well-being, and relations between Jerusalem and Buenos Aires grew closer. The kidnapping of Adolf Eichmann in May 1960, however, interrupted this idyll, precipitating a crisis that nearly severed the ties between the two countries and threatened Argentine Jews' sense of personal security. The Argentine Jewish community, which was then just marking the hundredth anniversary of its existence, became the target of a wave of antisemitic terror and nationalist attacks that sought to cast doubt on Jewish citizens' loyalty to the Argentine republic.

Thus, the "appropriate rendition" by one party causes untold suffering and unforeseen political consequences for a vulnerable population. One wonders if Horton knows also that both the West Germans and the U.S. knew the location of Eichmann for two years before the Israeli kidnapping and did nothing to induce Argentina to arrest or otherwise extradite the man.

Or does Horton forget or not know that the Israeli court trying Eichmann itself alluded to violations of international law in his capture, which were adroitly "remedied" by getting the Argentines to forego, after the fact, asserting their sovereignty in the case?

The Israeli Court also determined that because "Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied."

I'm not saying that Eichmann shouldn't have been tried, nor that he didn't receive justice. But that's poetic or moral justice... not law. My problem with the use of kidnapping by states is a simple one. Who decides when a person is beyond the legal pale? Who makes the justice? Who decides that abduction is acceptable? How will our civilization rule itself, by the law of talion, or the law of due process?

How the Press, the Pentagon, and Even Human Rights Groups Sold Us an Army Field Manual that (Still) Sanctions Torture

Originally published at AlterNet -- If you wish to repost this essay you can download a .txt file of the html here (right click and save). Permission granted.

A January 17 New York Times editorial noted that Attorney General designate Eric Holder testified at his nomination hearings that when it came to overhauling the nation's interrogation rules for both the military and the CIA, the Army Field Manual represented "a good start." The editorial noted the vagueness of Holder's statement. Left unsaid was the question, if the AFM is only a "good start," what comes next?

The Times editorial writer never bothered to mention the fact that three years earlier, a different New York Times article (12/14/2005) introduced a new controversy regarding the rewrite of the Army Field Manual. The rewrite was inspired by a proposal by Senator John McCain to limit U.S. military and CIA interrogation methods to those in the Army Field Manual. (McCain would later allow an exception for the CIA.)

According to the Times article, a new set of classified procedures proposed for the manual was "was pushing the limits on legal interrogation." Anonymous military sources called the procedures "a back-door effort" to undermine McCain's efforts at the time to change U.S. abusive interrogation techniques, and stop the torture.

A Forgotten Controversy

Over the next six months or so, a number of articles in the New York Times, the Washington Post, and the L.A. Times described the course of the controversy. By mid-June 2006, the NYT was reporting that, under pressure from unnamed senior generals and members of Congress (including McCain, and Senators Warner and Graham), the Pentagon was rethinking its plan to have a classified annex to the AFM, which would include a different set of interrogation rules for "unlawful combatants," like the detainees at Guantanamo. Included in the discussion about these classified procedures were, reportedly, members of the State Department and various human rights organizations.

According to an article in the L.A. Times, this latest fight over the classified procedures went back at least to mid-May 2006. The manual itself had been written at the U.S. Army Intelligence Center at Ft. Huachuca, Arizona, roughly a year earlier, and then sent to the Pentagon for further evalution. Secretary of Defense Donald Rumsfeld's right-hand man, Stephen Cambone, was put in charge of its final draft. According the L.A. Times article, members of Congress were "keen to avoid a public fight with the Pentagon." The announcement that the controversial and still unknown procedures might not be included in the manual was seen as a success by human rights groups.

Yet the proverbial chickens never hatched, and by early September 2006 the new Army Field Manual was finally released. The section on special interrogation procedures for "unlawful combatants" was included as a special appendix (Appendix M), and published in unclassified format. According to a L.A. Times story on September 8, Cambone was crowing that the new Army Field Manual instructions would give interrogators "what they need to do the job." The article noted:

The new manual includes one restricted technique that will only be used on so-called unlawful combatants – such as Al Qaeda suspects – not traditional prisoners of war.

That technique, called “separation,” involves segregating a detainee from other prisoners. Military officials said separation was not the equivalent of solitary confinement and was consistent with Geneva Convention protections.

As for the proposed secrecy surrounding the new techniques, the Pentagon had decided it couldn't keep them secret forever. Senator Warner was also on record as against any classified annex to the manual.

Not long ago, I wrote about what was included in Appendix M, which purports to introduce the single technique of "separation." In fact, the Appendix M includes instructions regarding solitary confinement, sleep deprivation, sensory deprivation, and, in combination with other procedures included in the Army Field Manual, amounted to a re-introduction of the psychological torture techniques practiced at Guantanamo, and taught by Survival, Evasion, Resistance, and Escape, or SERE psychologists and other personnel at the Cuban base and elsewhere.

The rewrite of the Army Field Manual included other seemingly minor changes. It introduced dubious procedures, such as the "False Flag" technique, wherein interrogators could pretend they were from another country. It also redefined the meaning of "Fear Up," a procedure meant to exploit a prisoner's existing fears under imprisonment. Now, interrogators could create "new" fears. The AFM rewrite was a masterpiece of subterfuge and double talk, which could only have been issued from the offices of Rumsfeld and Cambone.

One would think this turnaround of the Pentagon's position regarding a removal of these controversial procedures would have been a matter of some note. But there was no protest from Congress, no mention of the past controversy in the press, and only vague comments at first and then acceptance by human rights organizations like Amnesty International and Human Rights Watch. Only Physicians for Human Rights protested the inclusion of the techniques listed in Appendix M. For the rest... silence.

DoD Rolls Out the New Model

On September 6, 2006, a news briefing was held by the Department of Defense, as part of the unveiling of the new Army Field Manual, in conjunction with the then-new Defense Department Directive for Detainee Programs (DoD Directive 2310.01E). Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson and Army Deputy Chief of Staff for Intelligence (G-2) Lt. Gen. John Kimmons were the DoD presenters.

Much of the belief that the AFM provides an improvement over previous policies of the Department of Defense is likely due to a confusion between the two documents introduced that summer of 2006, the new Detainee Program Directive and the new Army Field Manual.

DoD Directive 2310.10E made a number of changes in regards to detainee operations and management. It made clear that "All persons subject to this Directive shall observe the requirements of the law of war, and shall apply, without regard to a detainee’s legal status, at a minimum the standards articulated in Common Article 3 to the Geneva Conventions of 1949..." The same type of language appears in the text of the Army Field Manual itself.

During the press briefing on September 6, and a different one the next day for the foreign press, reporters were not so easily fooled.

One unnamed reporter at the DoD briefing challenged Lt. Gen. Kimmons on the "single standard" issue:

Q General, why was the decision made to keep these categories -- the separate categories of detainees? You have traditional prisoners of war and then the unlawful enemy combatants. Why not treat all detainees under U.S. military custody the exact same way?

Kimmons's answer gives us insight into the kind of convoluted legal thinking that went into the Pentagon's rationale for the acceptability of coercive interrogation -- for some (emphasis added):

GEN. KIMMONS: Well, actually, the distinction is in Geneva through the Geneva Convention, which describes the criteria that prisoner -- that lawful combatants, such as enemy prisoners of war -- which attributes they possess -- wearing a uniform, fighting for a government, bearing your arms openly and so on and so forth. And it's all spelled out fairly precisely inside Geneva.

Geneva also makes clear that traditional, unlawful combatants such as in the -- 50 years ago, we would have talked about spies and saboteurs, but also now applies to this new category of unlawful -- or new type of unlawful combatant, terrorists, al Qaeda, Taliban.

They clearly don't meet the criteria for prisoner of war status, lawful combatant status, and so they're not entitled to the -- therefore to the extra protections and privileges which Geneva affords.

But Kimmon's clarification was not very helpful. In fact, if a prisoner is judged not a "lawful combatant", then he or she immediately becomes covered by Geneva IV, the "Civilian Convention," which protects anyone "who, at a given moment and in any manner whatsoever find themselves" held prisoner. According to the International Red Cross Commentary on the Geneva Conventions:

Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third [POW] Convention, [or] a civilian covered by the Fourth Convention.... There is no intermediate status; nobody in enemy hands can fall outside the law.

Separation and Sensory Deprivation

One questioner took on the topic of the "Separation" technique. Wasn't it the same as solitary confinement, and wasn't solitary confinement "banned by Common Article 3 in the affront to human dignity, other provisions? "Are you confident," a reporter asked, "that separation is permitted under Common Article 3?"

The Deputy Assistant Secretary of Defense for Detainee Affairs responded by denying that separation amounted to solitary confinement, even though the AFM describes the technique as, among other things "physical separation" "limited to 30 days of initial duration." Extensions for such physical separation must be reviewed and approved the General Officer or Flag Officer who initially approved the original "separation."

Kimmons' reply was even more disingenuous:

We have always segregated enemy combatants on the battlefield at the point of capture and beyond, to keep them silent, segregate the officers from the enlisted, the men from the women, and so forth. That's traditional; it goes back to World War II and beyond.

So, is "separation" a matter of segregating prisoners, or what? In the Army Field Manual itself, one gets that same kind of double talk. At first it is presented thus:

The purpose of separation is to deny the detainee the opportunity to communicate with other detainees in order to keep him from learning counter-resistance techniques or gathering new information to support a cover story; decreasing the detainee's resistance to interrogation.

This description sounds a lot like segregation for security purposes, although there is that phrase "decreasing the detainee's resistance." A page or so later, however, we find the following (emphasis added):

The use of separation should not be confused with the detainee-handling techniques approved in Appendix D [Guide for Handling Detainees]. Specifically, the use of segregation during prisoner handling (Search, Silence, Segregate, Speed, Safeguard, and Tag [5 S's and a T]) should not be confused with the use of separation as a restricted interrogation technique.

Furthermore, we learn that "separation" requires an interrogation plan, and medical and legal review, as well, of course, as "physical separation." If this is not solitary confinement for the purposes of breaking a prisoner down for interrogation, then the English language has lost all purpose in explaining things.

Another line of questioning took on the AFM's contention that it banned sensory deprivation. The entire exchange at the September 6 hearing is worth reproducing here. It represents, among other things, the most thorough line of inquiry I have seen by any reporter in quite some time. The following quote contains added emphases.

Q General, as an expert in interrogations, do you believe that sensory deprivation was abusive, or did it ever prove to be helpful in interrogation?

GEN. KIMMONS: Sensory deprivation is abusive and it's prohibited in this Field Manual, and it's absolutely counterproductive, in my understanding of what we have used productively. Sensory deprivation, just to be clear -- and we define it in the Field Manual, but basically, it comes down to the almost complete deprivation of all sensory stimuli, light, noise, and so forth, and to the point where it can have an adverse mental, psychological effect on a -- disorienting effect on a detainee.

Q So could there be deprivation of light alone for extended periods of time, as opposed to complete sensory deprivation?

GEN. KIMMONS: I think the total loss of an external stimulus, such as deprivation of light, would not fit what we have described here as -- for example, if you're hinting about separation, separation does not involve the darkness or lack of that type of sensory stimulation.

Q That wasn't the question, though. Would sensory -- would the deprivation of light alone be permitted under the current manual, as opposed -- because you described sensory deprivation as total deprivation --

GEN. KIMMONS: That's correction.

Q -- of all senses. So deprivation of light alone for extended periods would be permitted?

GEN. KIMMONS: I don't think the Field Manual explicitly addresses it.

It does not make it prohibited. And it would have to be weighed in the context of the overall environment. If it was at nighttime during sleep hours, then it would make personal sense to turn the lights off.

Q You know what I'm talking about. I'm trying to get at -- because you said specifically total sensory deprivation -- so deprivation of any one sense might be permitted. Like light, for example. They could be kept in the dark for extended periods of time beyond the usual nighttime hours.

This is really too specific and challenging for the DoD briefers, and they turn on their double-talk machine:

MR. STIMSON: Jim, questions like this are good questions to ask. And what's important to remember is that interrogation plans are put together for a reason so that not just one person can decide what he or she wants to do and then run off and do it. They're vetted. It's laid out how they're vetted. General Kimmons could go into that in exhaustive detail. Typically, there would be a JAG, as I understand it, General Kimmons --

GEN. KIMMONS: That's correct.

MR. STIMSON: -- that would have to review that. It goes up through various chains of command. And so, you know, types of questions like this would have to be asked and then vetted through that process.

Burying the Story

With all the hard questioning by the press, you'd think the issues would have been aired in the media in the days and weeks following the introduction of the Army Field Manual. As should be evident by now, that's not what happened.

Here's how the L.A. Times covered it (9/6/06), getting the story exactly backwards (emphasis added):

Bowing to critics of its tough interrogation policies, the Pentagon is issuing a new Army field manual that provides Geneva Convention protections for all detainees and eliminates a secret list of interrogation tactics.

The manual, set for release today, also reverses an earlier decision to maintain two interrogation standards – one for traditional prisoners of war and another for “unlawful combatants” captured during a conflict but not affiliated with a nation’s military force.

There is no mention of Appendix M or any controversy over techniques. Jumana Musa, an "advocacy director for Amnesty International, is quoted as noting, "“If the new field manual embraces the Geneva Convention, it is an important return to the rule of law.'"

The 9/7/06 article in the Washington Post was, if anything, even more laudatory of the new AFM:

Pentagon officials yesterday repudiated the harsh interrogation tactics adopted since the Sept. 11, 2001, terrorist attacks, specifically forbidding U.S. troops from using forced nudity, hooding, military dogs and waterboarding to elicit information from detainees captured in ongoing wars.

The Defense Department simultaneously embraced international humane treatment standards for all detainees in U.S. military custody, the first time there has been a uniform standard for both enemy prisoners of war and the so-called unlawful combatants linked to al-Qaeda, the Taliban and other terrorist organizations.

The article falsely claims the AFM bans manipulation of sleep patterns. Regarding any controversy, the article explains:

Three expanded techniques -- good cop, bad cop; pretending to be an official from another country; and detention in a separate cell from others -- are allowed but require approval from senior officers. Officials originally considered keeping those three techniques classified but decided to make them public for the sake of full transparency.

The Post article also briefly mentions the generally positive response of human rights groups:

"This is the Pentagon coming full circle," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "This is very strong guidance."

As for the human rights organizations, Amnesty International later essentially signed off on the AFM. In an article from the Winter 2007 issue of Amnesty International Magazine, Jumana Musa, quoted in the L.A. Times article above, had this to say about the new AFM:

AIUSA also worked with U.S. representatives and senators to introduce legislation to create a single, transparent standard for interrogations and to limit the CIA to approved interrogation techniques outlined in the Army Field Manual.

In a telephone interview for this article, Mr. Malinowski said he supported using the Army Field Manual as a replacement for the CIA "enhanced interrogation techniques," and described the question of abuse in Appendix M as not entirely clear. The language in Appendix M was "ambiguous," and open to criticism due to a "lack of clarity." He maintained, however, that using the current Army Field Manual as a model was merely a beginning, and that a new overhaul of interrogation techniques was on the agenda.

A call made to Amnesty International's press contact regarding this issue, and an e-mail sent to Jumana Musa, were both unreturned.

Conclusion

Two conclusions can be drawn from the above examination of the "selling" of the Army Field Manual to the American public in the late summer of 2006 and beyond. One is that reporters on the beat were very aware of the origins and implications of the issues surrounding Geneva and the AFM, and the controversies surrounding the use of isolation and other techniques under the rubric of "Separation." The extremely muted or non-existent discussion in the mainstream press of these issues after the AFM was introduced means that a decision to suppress these issues was made at an editorial level, and were not the result of laziness or dilatory reporting on behalf of reporters.

Secondly, the role of some human rights organizations in promoting the new Army Field Manual -- in particular, the actions of Amnesty International and Human Rights Watch -- are curious, to say the least. Press reports and the interview with Malinowski show that inclusion of certain human rights organizations in the vetting of the AFM started at the very beginning. We may not be able to find out what went on in the editorial offices of the nation's top newspapers, but we should know more about the discussions within the human rights organizations on how they advised, or were fooled, by talks with Bush administration and Pentagon personnel.

Meanwhile, other human rights organizations, such as the Nobel Prize-winning Physicians for Human Rights, have criticized the language and techniques described in Appendix M of the Army Field Manual, and called for rescission of the offending text. In a letter to Secretary of Defense Robert Gates in May 2007, Leonard S. Rubenstein, Executive Director of PHR, and retired Brigadier General Stephen N. Xenakis, MD, former Commanding General of the Southeast Regional U.S. Army Medical Command, wrote:

The new Army Field Manual on human intelligence gathering... explicitly prohibits several SERE-based techniques, yet Appendix M of the manual explicitly permits what amounts to isolation, along with sleep and sensory deprivation. The manual is silent on a number of other SERE-based methods, creating ambiguity and doubt over their place in interrogation doctrine....

PHR, therefore, respectfully urges you to take the following actions:

1. Fully implement the OIG’s recommendation to “preclude the use of Survival, Evasion, Resistance, and Escape physical and psychological coercion techniques” in all interrogations. (Id, pp. 29-30.) This includes rescission of Appendix M of the new Army Field Manual and specific prohibition, by name, of each of the known SERE-based methods and their equivalents.

It seems likely that the Army Field Manual, whether by executive order (most likely) or by legislation, will become the new "single standard" for U.S. interrogation. Press reports hint that the Obama administration may yet allow a loophole for CIA interrogators. I don't know how that will sit with the many military lawyers and officers who have been instrumental in opposing Bush/Rumsfeld's torture policies from the beginning. I'm thinking of people like Alberto Mora and Antonio Taguba, or the new nominee for DoD General Counsel, Jeh Charles Johnson, who apparently intends to seriously change the policies set by his predecessor, Jim Haynes.

In any case, the full history and controversy behind torture and U.S. interrogation policy deserves a full airing. What happened, for instance, between June and September 2006, allowing for Pentagon acceptance of the Appendix M abusive procedures? When it comes to the implementation of a host of torture and cruel, inhumane interrogation techniques by the U.S. government, both an investigation and prosecutions are needed.

It will be a challenge for our society to bring out the full story, while also bringing to justice those individuals who broke both domestic law and international treaty. We will need both investigations and prosecutions in order settle scores with the past, to understand where we stand now, and what we need to change to move forward.