Trump Administration Setting Up Padded Cell for Guantanamo Detainees

Originally posted at Medium.com

The nightmare that is Guantanamo never seems to end. Even before President Donald Trump reversed an Obama Administration order to close the detention center at Guantanamo — an action never completed — the Pentagon issued a formal solicitation for material to construct a padded cell at the Cuba-based prison.

Padded cells in psychiatric hospitals are used to supposedly safely contain violent patients. Some legal authorities have condemned the use of padded cells, which “involves a form of sensory deprivation, in that the prisoner is denied the opportunity of any meaningful interaction with his human faculties of sight, sound and speech — an interaction that is vital if the integrity of the human personality is to be maintained.”

On January 19, the Department of the Army listed a solicitation for materials (number W91WRZ-18-Q-0016) at the website of the General Services Administration, explaining the padding was meant for a “US Government mental health or psychiatric room in a detention medical facility” at “US Navy Station, Guantanamo Bay, Cuba.”

The Army described the planned room as being 7 feet by 12 feet, 4 inches, or 84 square feet in total. The cell is to be 8 feet, 3 inches high. The padding is to cover “the interior of walls, floor, ceiling, and steel hinged door and door frame,” and constructed “to prevent destruction by teeth, hand tearing, [or] small metal objects.”

According to the Army’s announcement, the installation date for the padded cell will be sometime between February 28 and March 31, 2018. The material will ship to Guantanamo from the Blount Island Terminal in Jacksonville, Florida. The bid, which must have been made by January 29, was to also include labor for installation of the material in the cell itself.

Guantanamo Causes Mental Illness

There have been numerous reports of mental illness at Guantanamo, including allegations of suicide. The autopsy for one detainee, Mohammed Al Hanashi, who in June 2009 supposedly strangled himself to death with a piece of his underwear, described multiple attempts to harm himself with head banging. Medical authorities noted that Al Hanashi’s mental illness was itself caused by the “conditions of confinement” at Guantanamo.

Other detainees have been described as severely mentally ill at U.S. naval base-sited prison. In 2016, it was revealed that military authorities had hidden the fact that a key early torture victim, Mohammed Al Qahtani, had a lifetime history of mental illness.

Many detainees have been apparently driven insane by the abusive conditions at Guantanamo. A June 2008 report by Human Rights Watch warned that the abusive conditions of confinement at Guantanamo, in particular the widespread use of solitary confinement, was precipitating significant mental illness in detainees, just as it does in America’s Supermax prisons.

In November 2016, an exposé in The New York Times documented how high levels of secrecy, prisoner mistrust, and the “shadow of interrogation” negatively affected the treatment of the mentally ill at Guantanamo. A month earlier, another Times article described how “[b]eatings, sleep deprivation, menacing and other brutal tactics have led to persistent mental health problems among detainees held in secret C.I.A. prisons and at Guantánamo.”

In my book, Cover-up at Guantanamo, in-depth descriptions, based on Freedom of Information Act documents, show what it was like to be in the psychiatric unit at Guantanamo. Prisoners were involuntarily drugged, their complaints of being tortured ignored by the medical professionals present. At least one prisoner died while being held in the supposedly safe confines of the Guantanamo Behavioral Health Unit (BHU). Another was found dead within 24 hours of release from the BHU.

The solicitation for materials to build a new padded cell at Guantanamo is yet another indicator that the U.S. government has no intention of shutting down that facility. Indeed, it expects that it will drive even more prisoners insane. The construction of a padded cell could be interpreted as a humane gesture to protect seriously mentally ill prisoners intent on self-harm. Or it could be understood as yet another element of a wide-spread and deeply thought-out torture apparatus. The history of Guantanamo argues strongly for the latter.

Meanwhile, it is sobering to consider that President Trump’s decision to keep Guantanamo open received very little opposition from Democratic Party spokespeople. Presumptive frontrunner for the 2018 Democratic Party nomination, Senator Bernie Sanders, never mentioned Trump’s stance on Guantanamo in his reply to Trump’s recent State of the Union address, despite the fact Trump announced his Guantanamo decision in the speech. (Sanders is formerly on record as calling for the closure of Guantanamo, but his record is somewhat checkered.)

Experimental “Battle Lab”

It is distressing to see how disturbingly easy it has been to bury the real purpose of Guantanamo, which was to create an experimental “battle lab” on interrogation and detention techniques, whose aim was to “break” the detainees held in U.S. custody, and to “exploit” them for purposes of information, propaganda, and intelligence purposes, e.g. to force them to work for U.S. government intelligence agencies.

While the situation surrounding government torture incrementally improved under President Obama. But the UN Committee Against Torture announced in 2014 that the U.S. was still using torture techniques in its Army Field Manual on interrogations. Given this context, the moves by the Trump Administration to roll back even the gains made during the previous administration are disturbing.
It is hard to imagine that more prisoners will not ultimately be sent to Guantanamo, or that we might even see the reinstitution of the CIA’s detention program, most likely under the hysteria engendered by some national security “emergency.”

Guantanamo represents the final failure of the American dream. It is the antithesis of human liberty. Enhancing Guantanamo’s facilities is not in anyone’s interest, unless it be those who profit by its construction and maintenance.

Perhaps some hope lies in the efforts of advocates like the Center for Constitutional Rights, which issued a statement about Trump’s decision to keep Guantanamo open:

Trump’s executive order is not the last word on the fate of Guantánamo, any more than his attempted Muslim bans and arbitrary transgender military ban — struck down by the courts — were the last word on those matters. CCR has filed a new legal challenge to the illegality and racism driving Trump’s Guantánamo policy and demanding detainees’ release. It is the courts, not the authoritarian-in-chief, that will ultimately determine the fate of the men detained at Guantánamo.

(H/T to Stephen Soldz for noticing the Army’s solicitation to begin with — JK)

U.S. Court Rules Cleared Guantánamo Prisoners Have No Right to Be Released

I'm very worried this story will be swamped by other news.

Below is a press release put out today by the international human rights organization, Reprieve. It concerns an outrageous ruling by Colleen Kollar-Kotelly, United States District Judge for the District of Columbia. The ruling stated that long-time Guantanamo prisoner Abdul Latif Nasser cannot be released from Guantanamo, even though a government board said he could, and even though the only reason given is bureaucratic red tape.

The situation for 56-year-old Moroccan Abdul Latif is dire, because while President Obama has been able to release dozens of detainees from Guantanamo in his final weeks in office, the incoming president, Donald Trump, whose inauguration is imminent, has said he wants to keep Guantanamo open, and has criticized Obama for the recent prisoner releases.

According to Reprieve's website, Abdul Latif was "sold for a bounty to the US military in 2002." His original habeas petition for release from detention dates back to April 2005. Can the wheels of justice grind any slower?

According to Kollar-Kotelly's court ruling, last July the Guantanamo Periodic Review Board (PRB), established by President Obama to assess whether or not prisoners at Guantanamo merited ongoing incarceration, “determined that continued law of war detention of [Petitioner] is no longer necessary to protect against a continuing significant threat to the security of the United States.”

But Abdul Latif's home country, Morocco, was slow in giving the security assurances the U.S. wanted prior to release. Those assurances were made, however, via diplomatic note on December 28, 2016. But Congress requires a 30-day notice prior to release, and that 30-day notice will not be up by the time Trump becomes President. Tough luck for Abdul Latif, says the judge.

Because Morocco’s response came "less than 30 days before the Secretary of Defense would leave office, the Secretary of Defense did not make a final decision regarding the transfer, including whether the requirements of § 1034 of the 2016 NDAA were satisfied and the transfer was in the national security and policy interests of the United States, as he elected to leave that decision to his successor. Resp’ts’ Resp. at 6–7."

That "successor" is likely to be Marine Gen. James Mattis, who is on record as opposing any further Guantanamo releases. Because of red tape, Abdul Latif, who the PRB, a board composed of six agencies — the Departments of Defense, Homeland Security, Justice, and State; the Joint Staff, and the Office of the Director of National Intelligence — cleared for release, may be sealed up as in a tomb in what will now be Trump's Guantanamo.

Even worse, it seems, is what Reprieve calls the "advisory" only aspect of the PRB ruling: "The Executive authority enacting the PRB review process unequivocally states that the PRB’s findings '[do] not address the legality of any detainee’s law of war detention.' Exec. Order No. 13,567 § 8 (2011)" To Judge Kollar-Kotelly, Abdul Latif cannot demonstrate any "invasion of a legally protected interest" in his continued indefinite detention. Maybe this makes some legal sense, but damn if anyone else will find reason in it.

Yesterday, January 18, Reprieve attorneys "filed emergency litigation on Abdul Latif’s behalf, asking the court to relieve the Obama Administration of the burden of the 30-day Congressional notice requirement. This would allow the Administration to release him to Morocco, his home, before President-elect Trump took office."

Emergency Plea to President Obama

But the court said today that the PRB ruling was only "advisory. Reprieve has written an emergency letter today to President Obama asking him to release Abdul Latif immediately.

We have just learned that Abdul Latif's freedom will be denied by government red tape — a result that is as pointless as it is cruel. He was due to be released before you left office, but as the final days of your administration rushed by, we learned he would be left behind....

We learned yesterday that the transfer process has simply been too slow. The Moroccan government just took too long to respond to the United States' resettlement request....

We implore you now to use your enormous power to help a man whose fate is entirely in your hands. A man who your State Department promised to return to his brothers and sisters and nieces and nephews in Morocco. We implore you to withdraw opposition to our motion today, and instruct your Defense Department to transfer Abdullatif home to Morocco immediately — a home that affirmatively requests his return. This is a result that all parties seek — Abdul Latif, the United States Government, and the Moroccan Government. Bureaucracy will steal yet more years of our client’s life unless you act now.

Abdul Latif has a stable, loving family eagerly awaiting his return, as noted by the Periodic Review Board, and he will have the ongoing support of Reprieve's Life After Guantánamo program. There is no sense in the United States holding him even a day longer. We beg that you do not leave him stranded in Guantánamo Bay.

Imagine being one week shy of liberty, and then being trapped in a torture hell for life!

Reprieve Press Release

An American court has today ruled that men cleared for release in Guantánamo Bay have no legal right to leave the prison - despite winning in the only viable release mechanism they have.

In declining to enable the emergency release of cleared prisoner Abdul Latif Nasser, the DC federal court insisted that Abdul Latif had no right to be released because a win at the Periodic Review Board is merely 'advisory'. This leaves prisoners at Guantánamo stranded: with no charge, no trial and no viable, enforceable path to release.

Abdul Latif, a 51 year-old Moroccan, was unanimously cleared by the Periodic Review Board for transfer home to Morocco on July 11. He remains imprisoned simply because the government's transfer process has been too slow. There is no evidence that the Obama Administration did anything to hurry the process along.

With no release in sight and fearing the worst, Abdul Latif filed emergency litigation last Friday. As part of this litigation, the US government admitted that bureaucratic slowness was the only reason he had not been returned home.

Abdul Latif now faces indefinite detention at the mercy of the Trump Administration.

Reprieve attorney Shelby Sullivan-Bennis said: "It is distressing that we cannot rely on our courts to enforce basic justice and common sense. Everyone wants Abdul Latif to go home—the US government, the Moroccan government, and his family. The government admits that his detention is “no longer necessary,” but will keep him simply because the change in administration has halted their plans—a devastating conclusion for Abdul Latif."

The court's ruling is here. More information about Abdul Latif‘s case and emergency litigation is available on the Reprieve US website, here.

Obama administration embraces war criminal Henry Kissinger with Distinguished Public Servant Award

The Obama administration, via its Department of Defense, had war criminal Henry Kissinger over at the Pentagon yesterday. The reason? To award Kissinger its highest honor, the award for Distinguished Public Service.

If you measure “public service” as being responsible for more deaths than any other living American in the effort to spread the influence of American empire over the globe, Kissinger was surely deserving.

It is not news that Kissinger has been embraced by this White House. The Obama administration use of this criminal has been open since the first days of the Obama presidency. The Kissinger issue, if I may call it that, surfaced again during the Clinton-Sanders debates, when Sanders decried Clinton’s reliance on the advice and counseling of Kissinger. For her part, Clinton lionized the former Nixon Secretary of State and National Security Adviser. (See the full transcript here.)

Sanders made it clear, that given Kissinger’s record, he would never rely on him for anything having to do with a Sanders administration. Indeed, it’s clear that Kissinger should be in jail. Sanders erred only in not saying it would prosecute him for war crimes.

The fact is, support for Kissinger is right at the dividing line between those who support and those who oppose an aggressive, militaristic foreign policy. In his reward speech, speaking of his so-called accomplishments , Kissinger said, “the fact is we were engaged in good causes" during his tenure in the Nixon and Ford White Houses.

For Kissinger, the Vietnam War, with its massive use of napalm, Agent Orange, its secret bombing campaigns, and use of torture and assassination, was a “good cause.” When the Obama administration, and former Secretary of State Hillary Clinton, embrace Kissinger, both his legacy and the man, they are embracing the greatest set of war crimes in living memory by the United States, a war that killed millions, and also destroyed the lives of tens of thousands of Americans.

Secretary of Defense Ash Carter, who gave the award personally to Kissinger, was named by Politico recently as a top candidate for the Secretary of Defense position under a Hillary Clinton administration, not least because of his hawkish views.

Vox editorialized news of the recent award, in its article, “The Obama administration is honoring Henry Kissinger today. It shouldn’t be.”

While Kissinger deserves real credit for some of America's most important Cold War victories, including Nixon's diplomatic opening to China, he is also responsible for some of its worst atrocities. Carpet-bombing Cambodia, supporting Pakistan's genocide in Bangladesh, greenlighting the Argentinian dictatorship's murderous crackdown on dissidents — all of those were Kissinger initiatives, all pushed in the name of pursuing American national interests and fighting communism.
While the Obama administration might want to pretend that only the first half of his résumé exists, that doesn't change reality. The secretary of defense is handing an award to a man whose actions belie the values Obama administration claims to stand for.

The Nation also chimed in:

It’s exhausting trying to keep track of what is now a quarterly celebration of the 92-year-old Kissinger. It was just six or so months ago when The New York Times Book Review assigned Kissinger’s preferred authorized biographer to review a Kissinger biography written by Kissinger’s second-choice biographer. A “masterpiece”! the first said of the second. And then, three months ago, Hillary Clinton, in a debate with Bernie Sanders, cited Kissinger’s recommendation as a referral for the White House. 

At the time, Clinton’s remarks seemed a misstep, allowing Sanders an opening to criticize her catastrophic interventionism in Iraq, Syria, and Libya. Now, though, it is clear that Clinton’s invocation of Kissinger wasn’t a fluke but rather a preview of a general election strategy to run to Trump’s right on foreign policy and win over the hawkish wing of the Republican Party.

Now some of you reading this may not realize how horrific Kissinger really is. But since he has become a campaign issue, and for some people — like myself — is a serious consideration not to support the presumptive candidate for the Democratic Party, you will need to educate yourself about who Kissinger is and what he’s done. Among his crimes are the mass bombing of civilian populations, support for assassinations and torture, wiretapping of journalists, support for invasions and military repression in numerous countries. He was notoriously involved in helping secure a military coup against the democratically elected government of Salvadore Allende in Chile.

Anyone can Google the information these days, but I particularly recommend reading the reproduction of Chapter One of the late Christopher Hitchens’ book, The Case Against Henry Kissinger at this link. Here’s a small section:

Declassified documents show that Kissinger- who had previously neither known nor cared about Chile, describing it offhandedly as "a dagger pointed at the heart of Antarctica"-took seriously this chance to impress his boss. A group was set up in Langley, Virginia, with the express purpose of running a "two track" policy for Chile, one the ostensible diplomatic one and the other -- unknown to the State Department or the U.S. ambassador to Chile, Edward Korry -- a strategy of destabilization, kidnapping, and assassination designed to provoke a military coup…. 

The short-term obstacle lay in the person of one man: General Rene Schneider. As chief of the Chilean Army, he was adamantly opposed to any military meddling in the electoral process. Accordingly, it was decided at a meeting on September 18, 1970, that General Schneider had to go…. 

On September 15, 1970, Kissinger was told of an extremist right-wing officer named General Roberto Viaux, who had ties to Patria y Libertad and who was willing to accept the secret American commission to remove General Schneider from the chessboard. The term "kidnap" was still being employed at this point and is often employed still. Kissinger's "track two" group, however, authorized the supply of machine guns as well as tear-gas grenades to Viaux's associates and never seem to have asked what they would do with the general once they had kidnapped him.

On October 22, 1970, after one failed attempt, Kissinger’s Chilean surrogates succeeded in machine gunning Schneider. It was a prelude to the coup that was to come.

The Obama administration is to be condemned for honoring this mass murderer. The supporters of Hillary Clinton have to answer for why they are supporting a candidate whose foreign policy mentor is someone who lauds the Vietnam War as a “good cause.”

Once upon a time, a site such as Daily Kos, which claimed to be for progressive causes, would not have let something like this pass unnoticed or uncommented upon. But with the rush to support a hawkish candidate for president in Hillary Clinton, the past crimes of U.S. foreign policy are being flushed down the memory hole. An earlier diary on this by pablito got ignored or disparaged by various readers.

That should not be.

Originally posted at Daily Kos, May 10, 2016

The letter on torture The New Yorker would not print

Dear Editor,

Many of us share Jane Mayer's disgust at the revelations about CIA torture ("Torture and the Truth," Dec. 22 & 29, 2014 [The New Yorker]), and the dishonesty whereby the CIA hid the hideous effects of their "enhanced interrogation" program. But I was disappointed that Ms. Mayer continues to imply that the U.S. gave up torture when President Obama issued his famous executive order in January 2009, when the President formally announced the Army Field Manual was to be the interrogator's only guide for interrogation techniques.

But numerous human rights and legal groups have said the Army Field Manual still includes techniques that amount to torture or cruel, inhuman, and degrading treatment. Indeed, in November 2014, the UN Committee Against Torture, which monitors adherence to a UN treaty against torture to which the U.S. is a signatory, stated in a review of U.S. practices that the U.S. needed to review Appendix M of the Army Field Manual. The reason? The manual allowed the use of sleep and sensory deprivation, and that kind of treatment of prisoners goes against treaty obligations. In the case of sensory deprivation, the Committee called the manual's use of the technique "torture" which can "create a state of psychosis with the detainee."

The UN report did not go unnoticed. The story made headlines in the New York Times and other newspapers. It is a shame that it is ignored in the pages of The New Yorker, and that a false picture about the current state of U.S. interrogation procedures is propagated.

Sincerely,

Jeffrey Kaye

[Note: the only change I've made in posting this is to add whatever is in brackets, as well as the embedded links. These minimal additions are added for the convenience and potential interest of readers.]

New DoD Directive on Detainees Allows Sleep and Sensory Deprivation, Biometric IDs

On August 19, 2014, the Department of Defense released an updated version of its Directive 2310.01E on the "DoD Detainee Program." It supercedes the previous version, dated September 5, 2006.

Earlier this month, Steve Vladek at the Just Security blog, pondered why the government chose this particular time to release the new, updated directive. While his observations are important and worth considering, much of importance is omitted from his brief analysis.

In my analysis -- besides the potential legalities explored by Vladek, which impact the definition of what the government considers the definition of an “unprivileged belligerent" (like the detainees at Guantanamo), and access of legal counsel to these prisoners -- the new directive propounds a number of new rules that summarize the Obama administration's detainee regime, particularly as it relates to Guantanamo.

The new directive expands upon what "humane treatment" means for those caught in its "detainee program." It also adds an item about the collection of biometric identification information (BII). Such information "will be collected from all detainees in accordance with DoDD 8521.01E." It also includes a statement of how long a detainee can be held, which appears to operationalize Obama's policy of indefinite detention of detainees. Finally, the directive greatly expands on the issue of who can be held, how charges can be brought against detainees, and what procedures are necessary for a detainee's release. (This article will not cover the very last item.)

A long analysis of all the changes would take many pages, and I am going to concentrate on those of immediate relevance to me. I would hope that Vladek, or other attorneys or human rights organizations will pursue the relevant legalities in the sections on how detainees are held and released.

No protection from sleep deprivation

In the 2006 version of the directive, the issue of humane treatment of detainees is summarized in a sentence: "All detainees shall be treated humanely and in accordance with U.S. law, the law of war, and applicable U.S. policy."

In the new 2014 version, the section on "humane treatment" expands to nearly 250 words. To understand the significance of what is written here, one must realize that the procedures "established for the treatment of persons consistent with this directive" includes U.S. Army Field Manual 2-22.3, “Human Intelligence Collector Operations" (AFM).

As I have written at various times, numerous human rights, medical, and legal groups have identified the AFM, and in particular its Appendix M on a "restricted Separation technique," to include methods of interrogation and conditions of confinement that amount to torture and/or cruel, inhumane and degrading treatment of prisoners. In particular, it allows use of isolation, sleep deprivation, use of drugs, sensory deprivation, environmental manipulation, and techniques that induce fear and degrading verbal treatment of prisoners, intending thereby to induce, according to the manual iself, "hopelessness and helplessness" in its victims.

Hence, while the new DoD directive makes some pretty noises about providing detainees with "Adequate food, drinking water, shelter, and clothing"; and while DoD claims detainees will be protected "against threats or acts of violence, including rape, forced prostitution, assault, theft, public curiosity, bodily injury, reprisals, torture, and cruel, inhuman, or degrading treatment or punishment," DoD never mentions any provision of adequate sleep. This is not, in my opinion, a mere oversight.

Sleep deprivation is a key foundational element, along with isolation (solitary confinement), of the torture program to break down individuals used by the CIA and the Department of Defense. The AFM's Appendix M provides specifically that prisoners (of the "unprivileged" sort) can be limited to 4 hours sleep per day for up to 30 days, and even longer. In principle, that can even be done indefinitely.

This sort of sleep deprivation is not as dramatic as the kind advertised in the CIA's "enhanced interrogation" version of torture, but it is debilitating nevertheless. Former DoD interrogator Matthew Alexander wrote in the New York Times, "The [Army Field] manual also allows limiting detainees to just four hours of sleep in 24 hours. Let’s face it: extended captivity with only four hours of sleep a night (consider detainees at Guantánamo Bay who have been held for seven years) does not meet the minimum standard of humane treatment, either in terms of American law or simple human decency."

Alexander added, "And if this weren’t enough, some interrogators feel the manual’s language gives them a loophole that allows them to give a detainee four hours of sleep and then conduct a 20-hour interrogation, after which they can “reset” the clock and begin another 20-hour interrogation followed by four hours of sleep. This is inconsistent with the spirit of the reforms, which was to prevent “monstering” — extended interrogation sessions lasting more than 20 hours."

Alexander was not alone in his analysis. The right to sleep is considered part of "humane treatment" under international law. A 2003 US Southern Command instruction (pdf) to then-Secretary of Defense Donald Rumsfeld, stated sleep deprivation was defined "as keeping a detainee awake for more than 16 hours" (see pgs. 5-6).

It is worth noting that the version of the AFM that preceded the current September 2006 version forbid use of sleep deprivation and stress positions.

The current version of the AFM, used to help define the parameters of treatment in the just released directive, eliminated the prohibitive language concerning sleep deprivation and stress positions. This is not an accident. And additionally, DoD's new directive also contains no prohibition on stress positions.

No protection from non-punitive sensory deprivation

Directive 2310.01E, like Appendix M of the Army Field Manual, does contain a prohibition on the use of sensory deprivation. The problem is in how the government defines "sensory deprivation."

The directive states, detainees "will not be subjected to medical or scientific experiments or to sensory deprivation intended to inflict suffering or serve as punishment."

One must ask, why is there a condition put on the prohibition of sensory deprivation? Sensory deprivation intended to inflict suffering, or as punishment is prohibited, but what about in other matters?

The directive is being opaquely coy here, as sensory deprivation is allowed in a particular procedure in the current Army Field Manual. In the description of the latter's "Field Expedient Separation," goggles or blindfold and earmuffs are put on a detainee for up to 12 hours. Again this is expandable upon official approval.

The AFM warns that care must be taken to protect the blindfolded, earmuffed prisoner from self-injury, and the prisoner must be medically monitored. The AFM doesn't explain why this is necessary, but the reason is that such sensory deprivation is intolerable for some people and can lead to hallucinations and self-injurious behavior. The inclusion of a procedure that so obviously needs medical monitoring should be a red flag that it violates basic humane treatment.

The purpose of the blindfold, goggles and earmuffs (and here, one may recall those pictures of be-goggled and earmuffed and bound detainees taken out of doors at Camp X-ray in the very earliest days at Guantanamo) is not to "inflict suffering." No, according to the AFM itself, it is to "prolong the shock of capture," prevent communication with other detainees, "and foster a feeling of futility." While the prevention of communication with other detainees may have a security factor, the other instances do not.

To that point, the new directive includes a section on the separation or "segregation" of detainees from each other for security and other reasons. It should be noted that such administrative segregation is not what is involved in the Appendix M version of "isolation." The AFM itself makes it clear that solitary confinement or isolation is used as an interrogation technique.

The use of "separation" itself as an interrogation technique should, according to the AFM, "be distinguished from segregation, which refers to removing a detainee from other detainees and their environment for legitimate purposes unrelated to interrogation...." (pg. M-1).

Isolation of prisoners is itself a form of sensory deprivation, in that it provides restricted environmental and social stimulation. (See this classic paper (long PDF) by Stuart Grassian on "The Psychiatric Effects of Solitary Confinement.")

Of course, isolation is something that is also sanctioned by the Army Field Manual, for up to 30 days, with the possibility of indefinite extension. The "humane treatment" section of the new DoD directive provides no protection against such treatment.

Biometrics

Also new to the DoD directive on its detainee program is a section on the collection of biometrics.

Biometric data "will be collected from all detainees... as soon as practicable after their capture by, or transfer to, the custody or control of DoD personnel, and will be included in detainee records. BII collected on detainees who are U.S. citizens or U.S. resident aliens will be conducted in accordance with U.S. law and policy and all applicable DoD regulations."

The use of biometrics deserves its own lengthy analysis. The fact that U.S. citizens or resident aliens may have different legal rights when it comes to such collection than, for instance, the Guantanamo detainees, is a matter worth pursuing.

According to DoD, biometrics is "A measurable biological (anatomical and physiological) and behavioral characteristic that can be used for automated recognition." (italics added)

As a process, biometrics concerns "Automated methods of recognizing an individual based on measurable biological (anatomical and physiological) and behavioral characteristics....

"Biometrics-enabled Intelligence. Intelligence information associated with and or derived from biometrics data that matches a specific person or unknown identity to a place, activity, device, component, or weapon that supports terrorist / insurgent network and related pattern analysis, facilitates high value individual targeting, reveals movement patterns, and confirms claimed identity."

The use of "behavioral characteristics" stretches the definition to something beyond the biological. One source I consulted said such characteristics include "Speaker Recognition, Signature Recognition, Keystroke/Keyboard Dynamics," or any "measurable behavioral trait that is acquired over time and is used to recognize or verify the identity of a person."

According to an oft-cited paper, "An Introduction to Biometric Recognition," types of biometric identification include via DNA, face and ear recognition, gait, retinal scan, odor, voice, and even the way a person signs their name or types upon a keyboard."

The new provisions for biometric collection on detainees comes just weeks before the FBI announced the full operational capability of its own biometric database system.

The possible dangers inherent in use of biometrics is beyond the scope of this article, and tend to involved concerns about privacy and the expanding use of or security of biometric databases. I've included the information here because it is something new in the detainee program, as delineated by DoD. For more discussion of the issues, see this Electronic Frontier Foundation discussion.

Indefinite Detention

In this already long essay on the new DoD Directive, I should note that it includes a brand-new item that seems to speak to the powers of indefinite detention propounded by the Obama administration. The new item states, "Subject to the requirements of the law of war and this directive, POWs and unprivileged belligerents may lawfully be detained until a competent authority determines that the conflict has ended or that active hostilities have ceased, and civilian internees may lawfully be detained until the reasons that necessitated the civilian’s internment no longer exist."

Who will this "competent authority" be? Whatever the answer to that question may be, it is frightening to see in official language the assertion that "civilian internees" can be "lawfully" detained until whatever "reasons necessitated" their internment "no long exist." In the "war on terrorism" we know that will be never. In its bold proclamation of the powers of indefinite detention, the document is profoundly unconstitutional and undemocratic.

In summary, we can see there is a lot more in the new DoD Directive on its Detainee Program than indicated in the Just Security discussion of its release. In particular, the directive makes explicit policies concerning so-called "humane treatment" of detainees that allows for the use of torture or cruel, inhumane, or degrading treatment of prisoners as set down in the current Army Field Manual. It does this despite formal statements of providing prisoners' rights, or following Geneva protocols, by omitting key items from its description of such "humane treatment," by burying actual abuse in references to other documents not specifically quoted in the directive, and by use of dodgy legalistic language that make things appear other than what they are.

If Bush or a Republican were President of the United States, this new DoD directive would have been subject to intense scrutiny and examination by a plethora of commentators and analysts. But because the Obama and the Democrats are in charge of the White House and Senate, a close examination of how Obama has perpetuated Bush and Cheney's torture program is not on the such analysts' political agenda.

The U.S. has become a Torture Nation. Torture is legalistically bound up in main government documents and how the government operates. Figures directly implicated in the planning and execution of torture have high positions in government or other major civil institutions (cf. John Yoo), while those who protest torture or expose it are punished.

[Update: Since writing this article, I discovered that were a few other postings at Just Security concerning the new DoD directive, besides that of Steve Vladek, including one by Gabor Rona, and one by Marty Lederman. These postings appear to be primarily concerned with the language around the definition of "unprivileged belligerents.” None of the other postings are critical of what Lederman called "expanded humane treatment provisions" in the new directive.

Meanwhile, Ryan Vogel, who says he "led the drafting and coordination process for DoDD 2310.01E", published today at Just Security a new article, "A Response on Department of Defense Directive 2310.01E (Detainee Program)."

Vogel writes, "... this new detainee directive is dramatically different from its predecessor, mandating, as a policy matter, those practices and lessons learned over the prior decade. Some of the more notable changes include: expanded humane treatment provisions and added emphasis by moving them into the main body from the attachments section; clarification regarding the general process for handling detainees from point of capture or assumption of custody until final transfer, repatriation, or release; expansion of the policies related to the transfer, repatriation, and release of detainees, including applicable humane treatment and security assurances; references to Article 75 of Additional Protocol I and Articles 4-6 of Additional Protocol II to the Geneva Conventions of 1949 as applicable detention principles (even though the United States is party to neither Protocol); and, most significantly, a new policy requirement to conduct detainee review processes, used to ascertain the status and continued necessity of detention for individuals detained by DoD under the law of armed conflict."

I think my answer to Vogel is explicitly aired above. What is disturbing is that the legal analysts at Just Security are so obtuse on the issue of what constitutes "humane treatment." Vogel is probably not obtuse. He must know where the textual bodies are buried, so to speak.]

Crossposted at FDL/The Dissenter

Obama Admits He Banned Only "Some" of the CIA's Torture Techniques

Forgive the tongue-in-cheek, but it is almost as if the only person who reads and responds to my work on torture is President Obama.

There was a cascade of coverage of the President's August 1 remarks concerning John Brennan and his defense of his embattled CIA chief, as Obama was also widely derided for his seeming defense of those who tortured "some folks" after 9/11. (Obama did not mention that the order to torture came from the Oval Office.)

"Well, at least he called the crimes out as 'torture," some observers noted. Others, including some in the Senate Select Committee on Intelligence (SSCI), called for John Brennan's resignation as CIA director after he admitted the CIA had spied on Congressional investigators who were writing a thousands-of-pages-long report on the CIA Rendition, Detention, and Interrogation program.

An Executive Summary of that report, in a censored version produced by the CIA itself, is now back in the hands of the SSCI, who may or may not release it soon. The Committee has already decided the full 6000 or so page report itself will not be released for years (if ever), a cover-up of immense proportions.

Jason Leopold, who has been covering the story for Al Jazeera America and VICE, noted astutely in a tweet the other day, that Obama's comments at his August 1 press conference included a reference to his only banning "some" of the CIA's torture techniques. Leopold believed Obama previously had always been more absolute in his prohibition of torture.

The full quote from the August 1 presser is worth reproducing here. The quote below begins in the middle of Obama's defense of those who used torture after 9/11, i.e., those who are the subjects of the Senate's controversial torture report (bold emphasis is added):

And it’s important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots.

But having said all that, we did some things that were wrong. And that's what that report reflects. And that's the reason why, after I took office, one of the first things I did was to ban some of the extraordinary interrogation techniques that are the subject of that report.

Only "some of the extraordinary interrogation techniques"? Not all? Was this merely a slip of the tongue by the President? No one in the press corp seemed to notice, and no one took him up on the issue. To date, no one has in the press has at all (besides Leopold's tweets), though it is very much worth noting that Jeremy Scahill reported in July 2011 on the CIA's continuing use of black sites and torture in an important article in The Nation. Others had surmised as much even earlier.

But there was a much more insidious and institutional salvage of torture by the U.S. government, which, rocked after the Abu Ghraib revelations, tried to hide and maintain its use of detention and interrogation techniques that relied on force, mental cruelty, fear, isolation, stress positions, sleep and sensory deprivation, and the use of drugs. Waterboarding, for all the attention given to that brutal form of torture, was never really a major component of U.S. torture. There were even some in the CIA who would be glad to see it go.

Using solitary confinement, loud music and 24 hour bright lights, verbal abuse and humiliation, "dislocating the expectations" of prisoners by, for instance, moving them around every day so they never had a sense of solid place or safety or time to rest, or using drugs to disorient them -- this is the kind of torture that leaves deep psychological wounds, and which the U.S. wanted to maintain in its interrogation arsenal.

What Obama Meant by Banning Only "Some" Torture

Over the past few years, I have shown how first the Bush administration hid their torture program within a 2006 rewrite of the Army Field Manual on interrogation, then how the Obama administration via Executive Order made that same field manual the law of the land, incumbent on both the CIA and the Defense Department.

I showed that when in January 2009 Obama publicly revoked the Bush torture program, which the government labeled "extraordinary interrogation techniques," and all the John Yoo/Jay Bybee/Steven Bradbury Justice Department memoranda approving that same torture program, he did not do it in a blanket fashion, but referred the memos themselves to Eric Holder for review. Ultimately, as a Department of Defense spokesperson actually told me, the Holder and the Justice Department never rescinded one of the Bush-era torture memos, in particular the one that approved forms of torture that would be used in a special section, called Appendix M, of the Army Field Manual.

Obama's admission that he had only banned "some" of the previous administration's torture techniques was not the first time the government has made such an admission, however obliquely.

Last April, I wrote how the Department of Defense's main directive on interrogations (3115.09), which supposedly had banned SERE-derived torture techniques (like waterboarding, hooding, etc.) used by the government after 9/11, in fact made a note that only some of the SERE techniques were banned. The ones that were not banned resided in -- the Army Field Manual on interrogation, the same manual Obama had endorsed in his Jan. 2009 executive order on "lawful interrogations."

SERE stands for Survival, Evasion, Resistance, Escape, and is the name given to DoD's program to prepare military and CIA and other specific government personnel for capture and imprisonment by a brutal enemy. Its participants take part in a mock-prison camp exercise, and it was the kinds of torture practiced during that exercise that were utilized in full-blown operational mode by CIA and Defense Department interrogators in the so-called War on Terror.

The SERE-derived model, which is what the "extraordinary interrogation techniques" really were, was superimposed on an earlier torture program based on isolation and sensory deprivation, sleep deprivation, fear and drugs, developed by the CIA and codified in a 1963 interrogation program that is referred to today as KUBARK. Earlier this year, I obtained a version of the previously declassified KUBARK manual with new portions now unredacted.

But oddly, besides myself, only Obama seems to have noticed that not all the torture techniques were rescinded by him. The press and certainly the Senate and the House of Representatives have ignored entirely the use of torture in the Army Field Manual. While some bloggers and human rights groups have noted the anomaly of having the nation's primary instructions on interrogation include torture techniques, and some have even called for a repeal of Appendix M or a rewriting of the field manual itself, none of these groups or individuals have made this a primary issue. Nor, when the controversy over the Senate report on the CIA torture program is discussed, is the ongoing presence of torture in the Army Field Manual ever mentioned.

The failure to take on the entire torture apparatus is one reason accountability for U.S. torture cannot get sufficient traction. The argument remains shackled by what the Establishment deems reasonable dialogue about torture. So one can criticize the embrace of euphemism to describe torture, or argue why waterboarding is torture, or shout loudly why the redacted portion of the SSCI's Executive Summary of their years-long investigation should be released, but evidently it is not reasonable, that is, establishment-sanctioned via the New York Times or other media or political authority, to bring up torture beyond the terms already established.

But now Obama has done it. He has said he banned only "some" of the torture techniques that were the target of the SSCI's report. Now, besides me, who's going to take him on about this?

Crossposted from The Dissenter/FDL

Contrary to Obama's promises, the US military still permits torture

cross-posted from The Guardian

The United States Army Field Manual (AFM) on interrogation has been sold to the American public and the world as a replacement for the brutal torture tactics used by the CIA and the Department of Defense during the Bush/Cheney administration.

On January 22, 2009, President Obama released an executive order stating that any individual held by any U.S. government agency "shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3."

But a close reading of Department of Defense documents, and investigations by numerous human rights agencies, has shown that the current Army Field Manual itself uses techniques that are abusive and can even amount to torture.

Disturbingly, the latest version of the AFM mimicked the Bush administration in separating out "war on terror" prisoners as not subject to the same protections and rights as regular prisoners of war. Military authorities then added an appendix to the AFM that included techniques that could only be used on such “detainees,” i.e., prisoners without POW status.

Labeled Appendix M, and propounding an additional, special "technique" called "Separation," human rights and legal groups have recognized that Appendix M includes numerous abusive techniques, including use of solitary confinement, sleep deprivation and sensory deprivation.

According to Appendix M, sleep can be limited to four hours per day for up to 30 days, and even more with approval. The same is true for use of isolation. Theoretically, sleep deprivation and solitary confinement could be extended indefinitely.

According to a 2003 U.S. Southern Command instruction to then-Secretary of Defense Donald Rumsfeld, sleep deprivation was defined "as keeping a detainee awake for more than 16 hrs.” Only three years later, when a new version of the AFM was introduced, detainees were expected to stay awake for 20 hours. Meanwhile, language in the previous AFM forbidding both sleep deprivation and use of stress positions was quietly removed from the current manual.

The use of isolation as a torture technique has a long history. According to a classic psychiatric paper on the psychological effects of isolation (aka solitary confinement), such treatment on prisoners can “cause severe psychiatric harm,” producing “an agitated confusional state which, in more severe cases, had the characteristics of a florid delirium, characterized by severe confusional, paranoid, and hallucinatory features, and also by intense agitation and random, impulsive, often self-directed violence.”

The application of the Appendix M techniques – which are considered risky enough to require the presence of a physician – are supposed to be combined with other "approaches" culled from the main text of the field manual, including techniques such as "Fear Up" and "Emotional Ego Down." In fact, at the end of Appendix M a combined use of its techniques with other approaches, specifically "Futility," "Incentive," and "Fear Up," is suggested.

While "Fear Up" and "Incentive" approaches act somewhat like what they sound -- using fear and promises to gain the "cooperation" of a prisoner under interrogation -- "Futility" has a vague goal of imparting to a prisoner, according to the AFM, the notion that "resistance to questioning is futile."

According to the manual, "This engenders a feeling of hopelessness and helplessness on the part of the source."

A review of documents released under FOIA shows that use of the "Futility" approach in the AFM was the rationale behind the use of loud music, strobe lights, and sexualized assaults and embarrassment on prisoners. The “Futility” technique pre-dates the introduction of the current Army Field Manual, which is numbered 2-22.3 and introduced in September 2006. In fact, the earlier AFM, labeled 35-52 was the basis of numerous accusations of documented abuse.

In the executive summary of the 2005 the Department of Defense's Schimdt-Furlow investigation into abuse of prisoners, the use of loud music and strobe lights on prisoners was labeled "music futility," and considered an "allowed technique." DoD investigators looked at accusation of misuse of such techniques, but never banned them.

Military investigators wrote, "Placement of a detainee in the interrogation booth and subjecting him to loud music and strobe lights should be limited and conducted within clearly prescribed limits" (pg. 9). Those limits were not specified.

Additionally, the Schmidt-Furlow investigators looked at instances where female interrogators had fondled prisoners, or pretended to splash menstrual blood upon them. According to military authorities, these were a form of "gender coercion," and identified as a "futility technique."

President Obama's Jan. 2009 executive order would seem to have halted the use of what DoD called "gender coercion," but not "music futility." But we don't know because of pervasive secrecy exactly what military or other interrogators do or don't do when they employ the "Futility" technique.

Numerous human rights groups, including Amnesty International, Physicians for Human Rights, and the Institute on Medicine as a Profession and Open Society Foundations have called for the elimination of Appendix M and/or the rewriting of the entire Army Field Manual itself.

What has been lacking is a widespread public discourse that recognizes that swapping waterboarding and the CIA’s “enhanced interrogation” torture with the Army Field Manual as an instrument of humane interrogation only replaced the use of brutal torture techniques with those that emphasize psychological torture.

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

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

The recommendation for action on the Army Field Manual (AFM) was the second finding and recommendation in the report (PDF):

The president has issued an executive order prohibiting the use of torture and other forms of cruel, inhuman, or degrading treatment, and has repudiated Justice Department legal memoranda authorizing its use. However, the Army Field Manual on Human Intelligence Collector Operations, which binds both military and CIA interrogators, permits methods of interrogation that are recognized under international law as forms of torture or cruel, inhuman, or degrading treatment. Such methods include sleep deprivation, isolation, and exploitation of fear.

Besides recommending that the Department of Defense (DoD) revise the AFM itself, the Task Force report calls for the United States to "accede to the Optional Protocol to the Convention Against Torture, which requires the creation of an independent domestic monitoring body for the purpose of preventing torture against individuals in custody."

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

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

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

Transforming Physicians into "Agents of the Military"

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

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

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

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

The AFM's Covert Actualization of Torture

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

In its Appendix M, meant only for detainees who did not qualify for the Geneva Conventions' Prisoner of War protections, under a deceptive omnibus "technique" called "Separation," the new AFM allowed for ongoing isolation and sleep deprivation of prisoners, for dietary and environmental manipulations, so long as they were not "extreme", and for forms of sensory deprivation (under the description "field expedient separation").

The President of the National Lawyers Guild Marjorie Cohn has stated that portions of the AFM protocol, especially the use of isolation and prolonged sleep deprivation, constitutes cruel, inhuman or degrading treatment or punishment and is illegal under the Common Article 3 of the Geneva Conventions, the U.N. Convention Against Torture and the International Covenant on Civil and Political Rights. Hina Shamsi, an attorney with the ACLU's National Security Project, has stated that portions of the AFM are "deeply problematic" and "would likely violate the War Crimes Act and Geneva," and at the very least "leave the door open for legal liability." Physicians for Human Rights and the Constitution Project have publicly called for the removal of problematic and abusive techniques from the AFM.

Yet, the interrogation manual is still praised by politicians, including then-presidential candidate Barack Obama, who in December 2007 said he would "have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors."

The authors of the 2006 Army Field Manual presented their work as reform, and at first that's what many believed. Even today, Appendix M is represented as a single "technique." Some misunderstand the idea of "separation" and think it has something to do with isolating prisoners for safety or security reasons. But the Manual itself (PDF) calls such separation for security reasons "segregation," and specifically says the "Separation" discussed in Appendix M is not the same as security segregation but is meant for interrogation purposes, its techniques to be applied with others in the Army Field Manual, including Fear Up and Ego Down techniques, i.e., with use of fear and humiliation.

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

The Torture Memo That Obama Never Rescinded

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

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

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

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

Obama, the Army Field Manual, and Torture

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

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

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

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

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

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

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

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

Also posted at The Dissenter/FDL

Human Rights Groups Criticize Obama Administration Delays on Guantanamo Closure

The following is the text of a letter to President Obama decrying the long delay in the implementation of the Administration's promises to act on closing Guantanamo. In fact, since writing the letter, the Obama administration announced that Paul Lewis would be the Department of Defense Special Envoy for the closure of Guantánamo's prison.

I'd like to know more about Lewis's role as Counsel for the House Armed Services Committee, particularly during the time legislation was being drawn up for the Military Commissions Act of 2006. But I doubt we'll see much investigation by the press into these kinds of appointments.

New Rules

Meanwhile, just today, DoD released a new set of rules concerning the Administration's "Periodic Review Board" (PRB) for Guantanamo. (H/T Jonathan Horowitz) A full analysis of this document awaits, but preliminary assessments by human rights legal experts on Twitter see this new set of rules -- released 30 months after promised by President Obama, and over a year after the mandatory date for action on it -- as akin to the PRB that was established for prisoners at Parwan, Afghanistan. My own reading saw them as not too different from the CSRTs from Bush Administration days.

Back in April, 2012, Human Rights Watch made some recommendations for the new PRBs at Guantananmo. Let's see how Obama and the DoD did:

Access to counsel/personal representative.... We urge you to implement procedures guaranteeing all persons held in US military detention access to a lawyer and a judge. Should you choose not to apply this standard universally such that some persons are assigned only a personal representative (a decision we would oppose), we urge you to make clear that communications between a detainee and the personal representative assigned to his case would be kept confidential in a manner similar to the rules governing attorney-client privilege. We further urge you to make clear that private counsel selected by the detainee in accordance with the Executive Order have access to all relevant inculpatory, exculpatory, and mitigating evidence, including classified evidence, provided they have the appropriate clearances.

From my reading of the new PRB process, only a "uniformed military officer (referred to as a personal representative)" will be assigned to assist detainees. Detainees can obtain their own private attorney "at no expense to the government, to assist the detainee in the review process." Nothing is said about confidentiality, but this is not surprising, as the government has gone out of its way to contaminate the military commissions process with intrusive theft, surveillance, and/or outrageous incompetence that amounts to obstruction of a detainee's right to counsel.

Access to evidence. The Executive Order provides that a detainee will receive an unclassified summary of the evidence against him, but that his personal representative and private counsel may be provided with other evidence; while not explicit, it appears that classified information may not be available to the detainee. In addition, the representative and counsel may, at the discretion of the PRB, be provided with substitutes or summaries of certain information on national security grounds. The ability of the detainee’s representative and/or counsel (but not the detainee himself) to access classified information does not alleviate the inherent unfairness of a system in which a person may be detained on the basis of information to which he cannot meaningfully respond. Should protection of national security truly require the use of some classified information, the implementing guidelines should make clear that the detainee be provided with as much information as possible and that the information be sufficient to allow him to contest the factual allegations against him.

Moreover, the Executive Order does not provide for a mechanism by which the detainee or his representative can challenge the adequacy of the production of the evidence. We urge you to include in the implementing guidelines a mechanism by which such challenges may be raised to an independent, preferably judicial, authority.

The new PRB rules go to some length to explain how classified information can be withheld for "national security" reasons from "personal representatives" and attorneys for the detainee. Yes, though substitutes or summaries of such information will be provided, DoD states,"The PRB will ensure that any such substitutes or summaries of information are sufficient to provide the personal representative or private counsel with a meaningful opportunity to assist the detainee during the review process."

So in the end, a prisoner held for years in indefinite detention, often with "evidence" that comes from "national security," secret sources that cannot be reviewed directly, will have to rely on the "cross-section of the national security community: that is the PRB to determine whether substitute summaries are adequate for defense. The need for "an independent, preferably judicial, authority" to vet such government claims is nowhere to be found in these new set of rules.

There's much more that could likely be said about these new PRB rules. (For instance, the Parwan PRBs allowed for public hearings, but there's nothing in the Guantanamo PRB process that allows for that.) I'll try and post more later here, or check my twitter feed to see links (@jeff_kaye).

Letter to President Obama

The text below is taken from Josh Gerstein's posting at Politico, where he also supplied his own analysis. However, the link there is for the reader's own use, as a copy of the letter was also sent privately to me.

President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500

RE: More than Four-Month Delay in Meeting Two of Your Key Commitments on Closing Guantanamo and Ending Indefinite Detention

Dear President Obama:

The undersigned human rights, religious, and civil liberties organizations strongly urge your administration to promptly and fully carry out two key commitments you made as steps toward closing the Guantanamo Bay prison and ending indefinite detention. Specifically, we urge you to 1) appoint an envoy in the Defense Department to lead the effort to close Guantanamo, and 2) direct Secretary of Defense Chuck Hagel to use his existing statutory authority, including any applicable certifications or national security waivers specified by the National Defense Authorization Act for Fiscal Year 2013 (“NDAA-FY13”), to transfer cleared detainees from Guantanamo to foreign countries that will respect their human rights. These actions would help to fulfill your renewed promise to end indefinite detention and close the Guantanamo prison.

More than four months have passed since you delivered your May 23, 2013 speech at the National Defense University, in which you recommitted the United States to the goal of closing the Guantanamo prison. Shortly before that speech, at your April 30, 2013 White House press conference, you committed the United States to ending indefinite detention at Guantanamo, stating: “the idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are, it is contrary to our interests, and it needs to stop.” You reiterated your commitment to closing the Guantanamo prison last month, in your speech at the United Nations. We greatly appreciate these important statements of a renewed commitment.

However, despite your personal commitment and engagement, the population at Guantanamo over the past four months has been reduced by only two detainees, moving only from 166 to 164. Of the detainees who remain, 84 were cleared for transfer by national security officials more than four years ago.

We are particularly concerned that two of your specific commitments have not yet been met:

Lengthy Delay in Appointment of a Senior Envoy at the Department of Defense: In your National Defense University speech, you stated, “I’m appointing a new senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries.” The White House clarified later that same day that there would be separate envoys for State and Defense. While Secretary of State John Kerry appointed Clifford Sloan as the envoy for State in June, Secretary Hagel has yet to appoint an envoy at the Defense Department. The problems caused by the lack of an envoy at the Defense Department have been compounded by the recent departure of the Pentagon head of Detainee Affairs and the absence of a permanent General Counsel. Vacancies in these critical positions have resulted in a leadership void within the Defense Department, which has delayed decisions and actions needed to reduce the population at Guantanamo by transferring cleared detainees to foreign countries that will respect their human rights.

Delays in Transferring Detainees out of Guantanamo Due to Internal Administration Disagreements on Scope of Existing Statutory Authority: In the National Defense University speech, you also stated, “To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries.” Many of our groups wrote to you on April 11, 2013 to urge you to use your existing statutory authority to “transfer the remaining detained men to their home countries or other countries for resettlement, or to charge them in a court that comports with fair trial standards.” Your press conference and speech more than four months ago expressed your determination to do so.

Despite your order to fully use existing authority to transfer cleared detainees, some administration officials have an exceedingly cramped view of that authority. As a result, after more than four months only two detainees have been transferred out of the 166 men who were held at Guantanamo on the day of your speech.

While we recognize that transfer restrictions in the NDAA-FY13 had needlessly complicated some transfers, the NDAA-FY13, if it again becomes applicable, includes a waiver that provides that the Secretary of Defense can waive the most onerous certification requirements if the government has taken steps to substantially mitigate risk. Particularly for the 84 men who have long been cleared for transfer, there is no reason why the Departments of Defense and State cannot work swiftly towards transferring all of them to foreign countries that will respect their human rights.

The Chairmen of the Senate and House Armed Services Committees have expressed their frustration with the overly narrow view of the NDAA-FY13 transfer provisions taken by some administration officials. Senate Armed Services Committee Chairman Carl Levin wrote to the White House Counsel, on May 6, 2013, explaining that “more than a year ago, I successfully fought for a national security waiver that provides a clear route for the transfer of detainees to third countries in appropriate cases, i.e., to make sure the certification requirements do not constitute an effective prohibition.” Similarly, House Armed Services Committee Chairman Buck McKeon wrote in the Washington Post on May 2, 2013 that the certification requirements were not a prohibition. The Senate Armed Services Committee itself, in its committee report for the NDAA for Fiscal Year 2014, wrote, “the committee emphasizes that the certification requirements [in the NDAA-FY13] were never intended to constitute an absolute prohibition on the transfer of Guantanamo detainees to countries other than the United States.” Other senior members of the Senate and House Armed Services Committees have made similar comments.

The statutory waiver authority created enough flexibility in the certification requirements that there should have been far more than two detainees transferred during the more than four months since your speech. Your order to fully use your existing authority to transfer cleared detainees “to the greatest extent possible” appears to have been largely thwarted by some administration officials applying exceedingly narrow interpretations of that authority, and of the certification requirements. Their interpretations defy a plain reading of the statute and cut against the stated intent of both its authors and the Senate committee of jurisdiction.

While we join your administration in strongly supporting statutory changes to the transfer provisions, which are included in the National Defense Authorization Act for Fiscal Year 2014, as reported by the Senate Armed Services Committee, there is no reason to wait for a change in the law. Enactment of the transfer provisions in the Senate bill is important because it will restore much more of your authority to transfer detainees out of Guantanamo, but you already have significant transfer authority under the NDAA-FY13, if the provision again becomes applicable.

A number of countries are clearly interested in receiving transferred detainees, and have the ability to reintegrate detainees back into society. Unless a detainee objects to a transfer based on a fear of denial of human rights, including a fear of treatment that would violate the Convention Against Torture, the United States should transfer detainees to these countries. In fact, the list of governments seeking the return of their citizens is long, and includes important allies of the United States. Leaders of these countries - including British Prime Minister David Cameron - have made public statements to that effect. In addition to these calls, your lifting of the moratorium on transfers of Yemeni detainees should allow for transfer of the majority of already cleared detainees. There is no reason for further delay in the transfer overseas of many of the detainees.

In both your press conference and speech more than four months ago, you eloquently and forcefully argued why the United States must prioritize the work to close the Guantanamo prison and end indefinite detention, and you set out some concrete steps toward that end, including the two steps discussed in this letter. We strongly support you in your commitment to close the Guantanamo prison and end indefinite detention. It is in this effort to support you that we want to make clear our concern that the more than four-month delay in your administration carrying out two key steps could jeopardize your ability to close the Guantanamo prison and end indefinite detention during your presidency.

Thank you for attention to these concerns.

Sincerely,
American Civil Liberties Union
Amnesty International USA
Appeal for Justice
Bill of Rights Defense Committee
Center for Constitutional Rights
Center for the Victims of Torture
Constitution Project
Council on American-Islamic Relations
Defending Dissent Foundation
Friends Committee on National Legislation
Human Rights Watch
International Justice Network
Japanese American Citizens League
National Association of Criminal Defense Lawyers
National Religious Campaign Against Torture
Presbyterian Church (USA)
Physicians for Human Rights
Win Without War

Andy Worthington on Obama's False Guantanamo Promises (Video)

Andy Worthington has posted a video at his website highlighting his comments at a recent rally to free Shaker Aamer. The July 18 rally, called by the Save Shaker Aamer Campaign, was held outside the UK Parliament building in London.

Besides talking about the just cause of discharging Shaker from Guantanamo, the last British prisoner held at the US military prison, who has been cleared by two administrations for release, yet still held indefinitely with dozens of others similarly cleared, Worthington concentrated on the recent promises Obama made to address the prisoners' situation.

Worthington wrote:

It is, of course, outrageous that Shaker is still held, as he was cleared for release under President Bush in 2007, and again under President Obama in January 2010, along with 85 of the other 166 men still held. Opportunistic opposition to the release of prisoners by lawmakers in Congress, and shameful inaction on the part of President Obama are responsible for keeping these 86 men in Guantánamo.

Moreover, there are still no signs that any of the men will be released, even though they have been on a hunger strike to highlight their plight since February, and two months ago President Obama, responding to unparalleled criticism internationally and domestically, promised to resume releasing prisoners.

I can scarcely express my disappointment with President Obama, who should not have promised to resume releasing prisoners if he had no intention of doing so, and who will be remembered for his cowardice and hypocrisy unless he is true to his word.

Andy's disappointment at the machinations over Shaker and the rest of the prisoners, and the ongoing obscenity that is Guantanamo is shared by many human rights workers and attorneys, but evidently not by the Obama administration, which has been been talking a good game (when pinned down) about closing Guantanamo and the need for humane treatment, but since taking over the reins of the prison from the Bush/Cheney administration in January 2009 has done next to nothing to act upon their empty rhetoric.

Here's Andy's video: