Where's the "Pathway" for Closure of Guantanamo?

Last Friday, November 9, Elisa Massimino, President and CEO of Human Rights First (HRF), hosted a press call with retired Rear Admiral Don Guter. HRF, along with a number of other human rights and legal groups, are calling upon President Barack Obama to fulfill his January 2009 pledge to close Guantanamo's detention facility.

Admiral Guter was the Navy's Judge Advocate General in 2000-2002. Last January, along with 14 other high-ranking former officers, Guter signed an open letter to President Obama calling for the immediate closure of Guantanamo.

The retired military officers were willing to put the blame on Obama's failure to keep his promise on a recalcitrant Congress.

"We recognize the political opposition you have faced in attempting to honor your commitment," Guter and the others wrote. "Congress has repeatedly restricted your ability to transfer detainees held there who have been cleared for release. Congress has also restricted your authority to bring criminal suspects held at Guantanamo to justice in our time-honored federal criminal courts. However, despite these restrictions, we are asking you to act within the discretion available to you to move our nation forward in closing Guantanamo once and for all."

But according to a question I posed to Guter last Friday, neither Obama nor anyone in his administration even bothered to reply to the 15 former "high-ranking former officers," which included General Joseph Hoar (USMC, ret.), former Commander in Chief of U.S. Central Command, and Major General Antonio Taguba, who headed the Army's investigation into the Abu Ghraib torture scandal.

But this didn't deter Admiral Guter, who maintains that Guantanamo is "still the symbol of the torture and the other horrific acts that took place down there, and still a symbol of delayed justice which we’re still experiencing." He added that Guantanamo's ongoing detention program has become a "recruiting tool" for U.S. enemies abroad. [Quote updated on 11/14 from an earlier version of this article, thanks to a transcript of the press call provided by HRF]

A Pathway?

Both Guter and Massimino maintained that there was a "pathway" for the closure of Guantanamo and the release of the 86 cleared detainees. But they would not be more specific about what it would be. Massimino indicated that a "policy blueprint" on the topic would be released during an HRF summit in the the first week of December.

I asked whether such a "pathway" would include the use of recent changes in the NDAA guidelines that would allow the Secretary of Defense to issue waivers that would guarantee the necessary security assurances for release. (For those who want Shaker Aamer released, for instance, such an action, long desired, is only a Leon Panetta signature away.)

It seemed that HRF's "pathway" would include such "flexibility in the waiver process", but more specifics were frustratingly withheld, no doubt awaiting the full roll-out of the programmatic call next month. However, Massimino did indicate that HRF will ask Obama to "task someone" to work specifically on the Guantanamo issue.

Despite the perspicacity of HRF and Admiral Guter in sticking with the Guantanamo issue, the reliance on faith in President Obama appears to be misplaced. Not only has he ignored those who have implored him on the issue in the past two years (including Admiral Guter himself), but his administration continues to do what it can to go after whistleblowers on torture (like John Kiriakou), who file suit against administration officials for torture (the latest defeat was in the Vance-Ertel suit against Rumsfeld), and press the Bush-era military commissions invention, only slightly modified from that of the previous administration.

No Accountability for Torture

The list of those who have escaped accountability for torture is getting to be a very long one, as attorney Jesselyn Radack wrote in an article recently about the Kiriakou guilty plea, noting the cover-ups have  spanned two administrations. (I'd note that her list mostly comes from the CIA and DoJ, but there are plenty of DoD operatives who could have been mentioned, too.)

Jose Rodriguez, Enrique "Ricky" Prado, Deuce Martinez, Alfreda Bikowsky, all of the lawyers who said it was legal, including my law school contemporary John Yoo (enjoying his tenured professorship) and now-federal judge Jay Bybee, twisted psychiatrists, including criminal contractors James Mitchell and Bruce Jessen, not to mention all of the names we still don't know of the anonymous masked brutes who kidnapped, rendered, beat, waterboarded, and deprived prisoners of the basic human dignities mandated by the Geneva Conventions.

Nor is it clear that a closure of Guantanamo -- should it indeed come -- wouldn't be primarily to cover-up on-going U.S. interrogation and detention crimes at Bagram, or other U.S. black sites from Somalia and Libya to Afghanistan. Indeed, Moon of Alabama has tied the current David Petraeus scandal and resignation to revelations about a CIA detention site in Benghazi, Libya.

But the clearest sign of political weakness on the torture issue lies in the relative disinterest in the topic by the vast majority of the press. During the press call with HRF, mine was the only question by the press. I can't know how many were present during the press call, but I wouldn't be shocked if the turnout was very low.

So, I don't have much faith in the Obama administration doing the right thing. But maybe HRF, Guter, and others will be successful in the long run. Unfortunately, I believe it will take a massive social struggle to change the torture policy of the U.S., as it has long been linked to a military and political policy of support for dictatorial regimes abroad, to such a degree that the problem has become systemic.

The U.S. cannot give up its torture habit, one that goes back decades now, way before Bush and Obama, even if Guter and his co-thinkers believe they can make U.S. military practice more ethical. I wish them luck, but I just don't have the requisite faith they have.

Tell the Senate: Release the SSCI Report on CIA Torture!

Human Rights First has released a letter to the Senate Select Committee on Intelligence, and is asking the public to sign on. This is an important action anyone can take to help bring about accountability for US war crimes, especially torture. The text of their call and the letter follows (readers can skip if they wish and follow this link to sign the letter now):

Tell the Senate: Release the Real Book on Torture!
Release the Real Book on Torture!

One year after bin Laden's death, torture proponents are gearing up once again to reignite the debate. But let's get our facts straight. Top level officials including Secretary of Defense Leon Panetta have debunked the claim that torture led to bin Laden. The Senate Select Committee on Intelligence (SSCI) has nearly completed a 3-year long review, 4,000-page report of the CIA's post-September 11 detention and interrogation practices. Let's end the torture debate. It's time for the United States to stand by national security policies based on facts and not fiction. Tell the SSCI to set the record straight and release the real book on torture.

Release the SSCI report on CIA’s Detention and Interrogation Program

Dear Senators Dianne Feinstein (D-CA), ), Kent Conrad (D-ND), Barbara A. Mikulski (D-MA), Bill Nelson(D-FL), John D. Rockefeller IV (D-WV), Mark Udall (D-CO), Mark Warner (D, VA), Ron Wyden (D-OR):
As members of the Senate Select Committee on Intelligence (SSCI), we urge that you make the forthcoming SSCI report on the CIA’s detention and interrogation program public with as few redactions as possible. We strongly support the Committee’s ongoing effort to investigate and establish the facts surrounding the CIA interrogation, rendition, and detention programs. These issues have been the subject of intense speculation and debate, and the absence of a comprehensive examination of the facts based on the actual historical record has been extremely corrosive and divisive. For example, soon after the killing of Osama Bin Laden, proponents of so-called “enhanced interrogation techniques” claimed that information derived from torture revealed his whereabouts. The anniversary of Osama bin Laden’s death will likely result in another contentious debate about the use of torture and cruelty in interrogations. The public is entitled to a complete reporting of the facts, detailing how and why these techniques came to be used. The use of cruel interrogation techniques long denounced by the United States as forms of torture represented a dramatic reversal from the principles to which our nation has aspired for over 200 years. We believe that these policies were abhorrent, illegal and ineffective. But, in the absence of a comprehensive review based on the classified record, people on both sides of this controversy continue to claim the facts are on their side. The Committee should let the facts speak. It should let the American people know what was done in their name. There can be no justification for continuing to deny the public the facts. As you know, the bipartisan Senate Armed Services Committee Report on the role of the Department of Defense in detainee abuses has already been made public.

Sincerely, [CLICK HERE TO SIGN THE LETTER]

UK/US Asylum Seekers Find Death, Abuse, and Criminal Indifference

Also posted at The Public Record

An article in the March 14 UK Observer reports that United Kingdom's asylum immigration system is systematically denying claims of torture by asylum applicants, despite ample medical evidence by applicants of torture in their home countries. Since 2001, many asylum applicants have been sent to prison, with murderers and rapists, despite the fact they have never broken any law, making Britain the only European Union country to have such a practice.

Sonya Sceats, a spokeswoman for one charity that carries out medical assessments for the government, told the Observer: "It's very clear there is a systemic and increasing problem here. The corollary of their dismissal of independent medical evidence is that the protection [asylum] claim is invariably rejected and this means a survivor of torture is at risk of being returned to further torture or at risk of detention."

The allegations come in the wake of strong criticism last week of the UK Border Agency, which was condemned for failing to investigate claims of mistreatment by failed asylum seekers in abuse allegations up to July 2008. Ministers now plan to review the use of force against asylum seekers by British security guards after a Border Agency report on abuse conceded that serious injuries were suffered by detainees who had been handcuffed or physically restrained.

Such claims of mistreatment by asylum applicants, imprisoned by the British government, despite proof of torture, include a Zimbabwean woman, currently on hunger strike at Yarl's Wood detention center, Bedfordshire, who had been raped and beaten in Zimbabwe, and still bears copious scars of the multiple stabbings on both arms. She also alleges racist abuse by the British prison guards. A Congolese woman, who also had suffered multiple rapes and beatings in her home country, "claimed to have suffered "medical abuse" and had anxiety attacks after witnessing a naked woman dragged from her room in Yarl's Wood by private security guards, claims robustly denied by the Home Office."

"Everybody was shocked," she said. "She had no clothes on and she was photographed. I still get flashbacks."

The story follows a UK Guardian report from last week, when three Kosovo nationals leaped to their deaths from a Glascow apartment building. The Kosovoan nationals -- two men and one woman -- were asylum applicants who had their claims of asylum rejected from the UK government. [See Update/Correction at end of this posting.]

The level of desperation, as well as abuse, suffered by UK asylum seekers was documented in an Institute of Race Relations (IRR) report in September 2006, Driven to Desperate Measures (PDF).

THE IRR has catalogued a roll call of death of the 221 asylum seekers and migrants who have died either in the UK or attempting to reach the UK in the past seventeen years.*

97 died taking dangerous and highly risky methods to enter the country. With legal barriers in place to prevent them securing visas or work permits to enter legally and sanctions applying to above-board carriers, the desperate stow away on planes and lorries or attempt to cross the channel in makeshift boats or cling to trains. The number recorded here is probably only a fraction of those who have died in this way. Our figures rely on news reports and by virtue of the subject matter these deaths are not news.

70 died as an indirect consequence of the iniquities of the immigration/asylum system - either by taking their own lives when claims were not allowed, or by meeting accidental deaths evading deportation, or during the deportation itself, or by being prevented medical care, through becoming destitute in the UK.

Of these:

- 57 died at their own hand, preferring this to being returned to the country they fled, when asylum claims were turned down. And compounding the process is the fact that some of those in detention and known to be traumatised and particularly vulnerable appear not to have been provided with the medical (especially psychiatric) support they needed.

- 4 died accidentally as, in terror at what they presumed to be the arrival of deportation officials, they took evasive action.

- 1 person died during the deportation process itself, when she was asphyxiated as officers used 13 feet of tape to subdue and quieten her.

- 2 people died after being deported back to a country where they feared for their safety. The actual number is certainly far higher.

- 5 people died because of being denied healthcare for preventable medical problems.

- 1 person died destitute and unable to access services.

4 died in prison, police or psychiatric custody, where racist stereotypes appeared to induce the use of reckless control and restraint methods or where there appeared to be medical neglect.

32 died in the course of carrying out work, which, by virtue of its being part of the 'black economy' carried particular dangers and few protective rights. (The numbers listed here are probably a gross underestimate, as work-related deaths of people who are 'illegal' will often go unreported in the media.)

18 died on the streets of our cities at the hands of racists or as a consequence of altercations with a racial dimension. Often the victims had been moved, via the government's dispersal system, to areas where they were particularly isolated and vulnerable to attack.

Great Britain is not alone in treating asylum seekers with injustice. In the United States, the selection of the administrative judges who rule on asylum cases has been politicized, with dire results. In a Stanford Law Review article a few years back, "Refugee Roulette: Disparities in Asylum Adjudication", after studying hundreds of thousands of asylum cases decided by asylum officers, immigration judges, the Board of Immigration Appeal and the U.S. Courts of Appeal, the study found "significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country."

As in the UK, not much has changed in the United States as well, with over a quarter of all immigration judges appointed during the Bush-Cheney years. But even before that, a San Jose Mercury News investigation in 2000 found vast disparities in the way asylum applicants were treated by the system. As a report by VisaLaw explained it:

The study... reveals what many instinctively knew about the asylum process – that whether a person is granted asylum depends less on the merits of the person’s case and more on the judge before whom they present their case. The paper examined 176,465 cases that came before the 219 Immigration Judges between 1995 and 1999.

Some judges granted asylum in half of the cases they heard, while other judges granted asylum in less than two percent of cases. Some judges even routinely deny asylum to applicants from countries such as Bosnia and Somalia, where conditions mean that most applicants are granted asylum.

Situation Scandalous in the United States

Of course, like Great Britain, the United States imprisons some of their asylum applicants, many of them torture victims, in public and private prisons throughout the country. Approximately 50,000 asylum seekers were placed in penal detention in the United States from 2003 to 2009. Detention retraumatizes the tortured, and prevents the asylum applicant from making a proper case for their claims. As a Human Rights First study (PDF) in 2009 explained it:

Six years after DHS and its interior immigration enforcement component, U.S. Immigration and Customs Enforcement (known as “ICE”) took over responsibility for immigration detention, the U.S. system for detaining asylum seekers is more flawed than ever.... In 2007 alone, more than 10,000 asylum seekers were newly detained in the United States. They are held in facilities that are actual jails or are operated like jails. They are often brought in handcuffs and sometimes shackles to these facilities, where they wear prison uniforms, are guarded by officers in prison attire, visit with family and friends only through glass barriers, and have essentially no freedom of movement within the facilities. The cost of detaining these asylum seekers over the past six years has exceeded $300 million. During that time, ICE parole policies have become more restrictive, and parole rates for asylum seekers dropped from 41.3 percent in 2004 to 4.2 percent in 2007. ICE has not provided Congressionally-mandated statistics—detailing the number of asylum seekers detained, the length of their detention, and the rates of their release—in a timely or complete manner. The U.S. detention system for asylum seekers, which lacks crucial safeguards, is inconsistent with international refugee protection and human rights standards.

Those who flee torture, rape, and political or social persecution and seek protection in another country are among the most vulnerable population on the planet. The HRF report in particular documents the punitive policy of ICE towards torture victims:

Previously, it was ICE policy to “favor release of aliens who have been granted protection by an immigration judge” when the decision was being appealed by the government. However, the new parole directive issued by ICE in November 2007 rescinded prior parole guidelines— including this guidance.

Even when ICE is not appealing an immigration judge’s ruling, some refugees and other immigrants who have been found eligible for other forms of protection have been detained for several additional months. For example, some individuals who were granted relief under the Convention Against Torture—because they had shown that they were more likely than not to be victims of torture if returned to their home countries—were detained by ICE for an additional 90 days even after the judge granted them relief. Attorneys in Arizona, Florida, Illinois, Michigan, and Minnesota report that this is “often” the case in their areas. In Arizona and Florida, individuals who were determined by the U.S. to be “refugees” and were granted “withholding of removal”—and who therefore cannot be returned to the country in which they fear persecution— have also sometimes been detained for up to an additional 90 days.

Meanwhile, over 90 immigration detainees have died since ICE took over administration of the system in 2003, at least a dozen of them suicides.

Something is very wrong with a country when it treats its least powerful, most vulnerable members in such a disgraceful way. But what we hear from politicians in the UK and the United States is more often jingoistic and racist invective against "immigrants", and the population as a whole either turns away from this issue, poisoned with prejudice, or simply are ignorant of the stories of these individuals who live in their midst, but are hardly ever reported.

As a conclusion, I ask readers to consider just two stories from the HRF report, describing this terrible tragedy enacted every day by the U.S. government:

A Colombian refugee, who had been jailed, beaten, and tortured for participating in a political demonstration in Colombia, was detained in a U.S. immigration jail in Arizona for 14 months, including for over eight months after an Immigration Judge had ruled that he was eligible for asylum. The ICE attorney who had argued against the refugee’s asylum request appealed the judge’s decision to the Board of Immigration Appeals. ICE refused to release the asylum seeker while the appeal was pending. ICE denied his request for parole, even though the man had both a U.S. citizen daughter and a U.S. citizen father. He was finally released after eight additional months in detention, over two weeks after the Board of Immigration Appeals affirmed the judge’s decision granting him asylum.

* * * *

A Sri Lankan fisherman, who was a victim of kidnapping by the Liberation Tigers of Tamil Eelam (LTTE), was detained for 30 months in the United States while ICE opposed his request for asylum on the ground that his payment of his ransom consisted “material support” to the armed group. When he was finally released from detention pending a decision by the Board of Immigration Appeals, he was placed into a restrictive supervision program. He was fitted with an ankle bracelet and initially required to report on a monthly basis. Eventually, this was reduced to in-person reporting every six months. After nearly two years of compliance with all reporting requirements, following his 30 months of detention, the fisherman is still required to wear a large ankle bracelet and is subject to home visits.

Correction/Update:

This story reported that the suicides of three individuals in Glasgow were Kosovo nationals. Later reports have identified the individuals who died in the leap off the 15th story of an apartment building as Serguei Serykh, 43, his wife Tatiana and Mr. Serykh's adult stepson. A BBC story on March 13 said the family had previously been granted political asylum in Canada, but had left after an some kind of dispute with authorities there. They had recently been denied an application for asylum in the UK, and on the day they died had received a letter that they would lose their apartment, although no order for removal had yet been filed. Extrapolating from a Globe and Mail report on March 10, it appears possible that Mr. Serykh suffered from a serious mental illness.

The suicides of these desperate individuals have brought organized protests in Scotland, with marchers calling for an end to the "enforced removal of refugee families," according to the BBC report. A later article by the UK Guardian quotes the director of the Glasgow charity Positive Action in Housing, Robina Qureshi, as saying the family's death could not be attributed to psychological issues, but UK asylum policy. "The Serykhs were considered credible in Canada," Qureshi said. "Shouldn't that be good enough for us? They were going to be out on the street, destitute. What would that do to your mental state?"

Human Rights First "End Torture Now" Letter Campaign to Obama

Human Rights First has set up a short, effective and simple way for you to register your opposition to U.S. torture. Click here and you will be taken to an automated webpage that allows you to write your own letter and send it to President-elect Obama. It just takes a few minutes. Why not do it now?

We Can End Torture Now

On the occasion of the 60th Anniversary of the Universal Declaration of Human Rights, we ask that you contact President-elect Obama's Transition Team.

Let them know that restoring America's place in the world as a nation that stands up for human rights must be a top priority, and that the new administration should act swiftly to fix U.S. interrogation and detention policies.

No torture. No exceptions.

Postmortem: APA Torture Resolution Puzzle

The American Psychological Association (APA) has posted on their site the text of a new resolution passed August 19 on the question of psychologist participation in torture and cruel, unusual, inhumane or degrading practices (CUID) related to interrogation of "enemy combatants".

Written with an attorney's eye to nuances of definition and interpretation, it offers a condemnation of specific torture techniques, and suggests psychologists can refuse to work for interrogations or in settings that use such odious coercive techniques. But what it offers with one hand, it takes back with the other.

A close reading of the resolution shows that not much has changed since the last time APA took up this issue in 2006. I commented then that an abandonment of international laws and treaties in order to rely for definitions of CUID upon U.S. constitutional standards meant an evisceration of protections against involvement in coercive interrogations.

This essay looks closely at the inner workings of this latest resolution by the largest psychological association in the world, and why it is woefully inadequate.

"Reaffirmation" Means Never Having to Say You're Sorry

The title of the resolution is long, and even has its own footnote, which already might tell you something: Reaffirmation of the American Psychological Association Position Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and Its Application to Individuals Defined in the United States Code as “Enemy Combatants". The footnote refers the reader to the definitions of "unlawful enemy combatant" in the Military Commissions Act of 2006. This acceptance of the dubious Bush "war on terror" label for their prisoners from Guantanamo to Iraq to CIA secret prisons ("black sites") is an ominous foreshadowing of APA's true loyalties.

The reaffirmation concerns the fact that APA passed a resolution against torture in 2006, after a handpicked commission, stacked with military personnel that were already involved in suspect interrogation activities, studied the issue of psychologist involvement in national security interrogations. The 2006 resolution used a definition of cruel and unusual punishment or treatment that was taken from the McCain Amendment last year, which relied on an obscure set of legal reservations the U.S. held when ratifying the UN Convention Against Torture back in the early 1990s. These "reservations" were crafted earlier by Reagan and Bush, Sr. attorneys and relied on U.S. definitions of CUID, which are based on federal court interpretations of the 5th, 8th, and 14th amendments to the Constitution. I refer readers back to my earlier article for a fuller analysis.

But this reaffirmation of the 2006 position -- formally a denunciation of torture -- by the APA leaves intact the mushy definition around CUID (called "torture-lite" by some), meant to bring in by the back door some hideous techniques of punishment and detention, including isolation, sensory deprivation and overstimulation, and sleep deprivation.

The More Things Change...

The APA is touting how the new 2007 resolution prohibits "specific techniques sometimes used in interrogations and calling on the U.S. government to ban their use". Here is the relevant text from the new resolution:

BE IT RESOLVED that this unequivocal condemnation includes all techniques defined as torture or cruel, inhuman or degrading treatment under the 2006 Resolution Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, the United Nations Convention Against Torture, and the Geneva Convention. This unequivocal condemnation includes, but is by no means limited to, an absolute prohibition for psychologists against direct or indirect participation in interrogations or in any other detainee-related operations in mock executions, water-boarding or any other form of simulated drowning or suffocation, sexual humiliation, rape, cultural or religious humiliation, exploitation of phobias or psychopathology, induced hypothermia, the use of psychotropic drugs or mind-altering substances used for the purpose of eliciting information; as well as the following used for the purposes of eliciting information in an interrogation process: hooding, forced nakedness, stress positions, the use of dogs to threaten or intimidate, physical assault including slapping or shaking, exposure to extreme heat or cold, threats of harm or death; and isolation, sensory deprivation and over-stimulation and/or sleep deprivation used in a manner that represents significant pain or suffering or in a manner that a reasonable person would judge to cause lasting harm; or the threatened use of any of the above techniques to the individual or to members of the individual’s family...

Now, what kind of hairsplitter could I be to criticize such a definite blasting of the kinds of horrible torture techniques used by Bush's military and CIA? Even Physicians for Human Rights is trying to see the cup as half-full. And maybe they are right, but I have strong reservations of my own. Here's what PHR says:

The American Psychological Association's (APA) "unequivocal condemnation" of enhanced interrogation techniques used by the CIA such as water-boarding, mock execution, exploitation of phobias, exposure to extremes of heat and cold reinforces the urgency of abolishing the use of these methods in all intelligence-gathering activities conducted by the US government, Physicians for Human Rights (PHR) said today....

"The action by the American Psychological Association reflects what clinical experience and scientific study have long shown: that these techniques destroy people, amount to torture, and must never, ever be used," stated Leonard S. Rubenstein, President of PHR. "The Bush Administration must immediately follow the APA's resolution by expressly abolishing the use of these techniques by the CIA and all other agents of the US government."

The APA also determined that psychologists should have no role in planning, designing or assisting in these techniques, and urged tribunals to reject testimony elicited by torture or cruel, inhuman or degrading treatment or punishment. It recognized, too, that "conditions of confinement" as well as interrogation methods can amount to torture or cruel, inhuman or degrading treatment or punishment. The resolution affirms that psychologists may not participate, directly or indirectly, in any activities that amount to or facilitate torture or cruel, inhuman or degrading treatment, even when these activities are authorized by law or regulation. [emphases mine]

... The More They Stay the Same

Looking back at APA's long list of prohibited techniques we see something strange in the wording. The first part of the list are odious forms of obvious torture. "Techniques" that are "unequivocally condemned" include rape, mock executions, waterboarding, etc. Note, however, that use of "psychotropic drugs or mind-altering substances" are prohibited in instances where they are "used for the purpose of eliciting information". If they are used to sedate or "soften up" a detainee prior to the questioning, drugs are apparently not prohibited.

Even worse is what comes next: a subset of other techniques are also singled out as prohibited when they are "used for the purposes of eliciting information in an interrogation process". These are "hooding, forced nakedness, stress positions, the use of dogs to threaten or intimidate, physical assault including slapping or shaking, exposure to extreme heat or cold, threats of harm or death".

A third subset of "prohibited" techniques concerns sensory deprivation and overstimulation, and sleep deprivation. Here, the APA goes completely off the rails. They define these techniques to be prohibited only if "used in a manner that represents significant pain or suffering or in a manner that a reasonable person would judge to cause lasting harm". (Emphasis mine)

Hey, APA, as Stephen Soldz noted at the convention to a number of people: what ever happened to Ethics Principle A of the APA's own Ethics Code?

Principle A: Beneficence and Nonmaleficence
Psychologists strive to benefit those with whom they work and take care to do no harm. In their professional actions, psychologists seek to safeguard the welfare and rights of those with whom they interact professionally and other affected persons...

My objection is this: Not only has APA abandoned its own ethics code, using legalistic language reminiscent of the infamous Yoo and Bybee memos on torture, but they have rescued a set of coercive techniques which do serious harm to individuals who suffer them and are directly against Geneva Convention Common Article Three. These techniques -- like sensory deprivation -- are not typically used in interrogation anyway (except slapping, shaking and threats). They are used as part of an abusive prison environment and constitute coercive conditions of confinement, not interrogation. An individual may suffer isolation or sensory deprivation or stress positions for many months without even being questioned!

Why would the APA allow this? Also, why did the APA fight hard to defeat an amendment to their new resolution that would have allowed psychologists to serve only a health-care related function at U.S. "enemy combatant" detention centers? Why did APA drop this new resolution in the laps of the voting Council of Reps at the last minute?

APA Proxy War in Intelligence Dispute over Interrogations

When I spoke at the "Town Hall" meeting the night the new resolution was passed, where hundreds of disgruntled and angry psychologists came to speak their pain and anger over the APA still allowing psychologist participation at detention camps that violate international human rights law, I explained that the parsing of language over "prohibited techniques" was consonant with the division within the military and intelligence community over the introduction of SERE reversed-engineered torture techniques into Bush's prison camps. It cannot be a coincidence that techniques associated with SERE-style torture are "unequivocally prohibited", while techniques engineered by the CIA decades ago and codified in their KUBARK Counterintelligence Manual (like use of drugs, sensory deprivation, etc.) are only conditionally banned. (SERE stands for Survival, Evasion, Resistance, Escape, and is a military program to "stress inoculate" military officers and other personnel against abusive POW experience.)

In my analysis, within the government, SERE is under heavy investigation. The release of a Pentagon Inspector General Report condemning SERE psychologists for bringing abusive practices to prisons from Guantanamo to Abu Ghraib and Afghanistan is leading to hearings by the Senate Armed Services Committee this fall. Meanwhile, the CIA is granted carte blanche via executive order by President Bush to use "enhanced" techniques of interrogation at secret "black sites" abroad. In Bob Dylan's words, "You don't need a weather man / To know which way the wind blows."

The APA has been the obedient servant of military needs since its inception. In future articles, I will explore some of this history. Meanwhile, APA anti-torture activists are still reeling from recent events, trying to find the silver lining to some of APA's statements, or withdrawing in fatigue and demoralization.
One thing is for sure: the fight against abuse of state power, and misuse of scientific knowledge in the service of same, is a struggle that will go on for a long, long time.

"Enhanced" Interrogation Techniques and the Risk of Criminality

Human Rights First (HRF) and Physicians for Human Rights (PHR) have jointly published a new report, "Leave No Marks: 'Enhanced' Interrogation Techniques and the Risk of Criminality" (download the full report (PDF) here).

The context of its release involves the Bush Administrations issuance of new interrogation guidelines to the CIA, guidelines that appear to allow the continued use of torture and cruel and degrading or inhumane treatment of government detainees in the "war on terror". The other major context concerns the ongoing battle to keep medical professionals from participating in coercive interrogations in illegal places of detention -- a battle that is being fought out most imminently in the listservs and council chambers of the American Psychological Association.

From the HRF/PHR Executive Summary (footnotes in text must be referenced through link):

All U.S. personnel who engage in the CIA's so-called "enhanced" interrogation techniques and similarly abusive techniques are at serious risk of violating U.S. law. Under U.S. law, as detailed below, the severity of physical pain or mental harm caused by an interrogation technique is key to determining whether the technique can be considered torture or cruel, inhuman or degrading treatment. An extensive body of medical literature, derived from the treatment and study of torture survivors worldwide, demonstrates that the "enhanced" techniques are likely to cause significant physical and mental harm to detainees. As a result, officials and interrogators who authorize and participate in interrogations using these techniques face a substantial risk of criminal liability under the provisions prohibiting "torture" and "cruel or inhuman treatment" in the U.S. War Crimes Act (WCA), as amended by the Military Commissions Act of 2006 (MCA),[1] and under The Torture Convention Implementation Act of 1994 (the Torture Act).[2] Many of these interrogation techniques may also be prohibited by the Detainee Treatment Act of 2005 (DTA).[3] To protect U.S. officials and personnel from potential criminal liability and to ensure that all U.S. personnel adhere to U.S. law, these techniques should not be authorized.

The CIA "Enhanced" Interrogation Methods

On July 20, 2007, President George W. Bush issued an executive order interpreting the application of Common Article 3 of the Geneva Conventions to a program of detention and interrogation by the CIA.[4] The order does not clarify what techniques the CIA can and cannot lawfully engage in. Press accounts, citing anonymous Administration officials, suggest that at least one of the "enhanced" techniques, waterboarding, may no longer be used. The fact that the Administration officials may have ruled out some "enhanced" techniques, though, raises serious questions about whether the CIA guidelines implementing the Executive Order will permit Agency interrogators to resume the other techniques previously authorized.[5]

While the details of the CIA's "enhanced" interrogation program remain classified, credible reports have disclosed several of the techniques that were authorized in March 2002 for use in the program, including water-boarding (mock drowning), exposure to extreme cold (including induced hypothermia), stress positions, extreme sensory deprivation and overload, shaking, striking, prolonged sleep deprivation, and isolation, among others.[6] Without identifying specifically approved techniques, the President has, in the past, publicly endorsed "alternative interrogation methods," and declared that the MCA, which he signed into law in October 2006, allows the CIA "program" to continue.[7] The new executive order fails explicitly to rule out the use of the "enhanced" techniques that the CIA authorized in March 2002.

The Executive Order does state clearly that any program of detention and interrogation approved by the Director of Central Intelligence may not include any acts prohibited by the War Crimes Act or the Torture Act. Yet a close analysis of the War Crimes Act and other U.S. law, informed by medical and psychological expertise, reveals that these "enhanced" interrogation techniques, may constitute "torture" and/or "cruel or inhuman treatment" and, consequently, authorization of their use under the Executive Order would place interrogators at serious legal risk of prosecution for war crimes or other violations.

A recently declassified report by the Pentagon's Office of the Inspector General (OIG) revealed that these techniques were based in large part on techniques of torture and cruelty used by the U.S military in its Survival, Evasion, Resistance, and Escape (SERE) program. The SERE program was intended to train personnel to resist interrogation under such abuse if captured.[8] According to the OIG, these techniques were transformed, with the assistance of military psychologists, into "standard operating procedure" (SOP) for interrogations at the Guantánamo Bay detention facility. This Guantánamo SOP, the OIG reports, also was brought to Afghanistan and Iraq and, according to media reports, provided a basis for techniques used by CIA personnel, also with assistance from psychologists.[9] The origin of these techniques is directly related to the focus of this report. They were designed to inflict physical and psychological harm for the purpose of breaking down interrogation subjects. This report describes the nature and extent of that harm and the legal consequences to interrogators of employing techniques that cause it....

There must be no mistake about the brutality of the "enhanced interrogation methods" reportedly used by the CIA. Prolonged sleep deprivation, induced hypothermia, stress positions, shaking, sensory deprivation and overload, and water-boarding (which may still be authorized), among other reported techniques, can have a devastating impact on the victim's physical and mental health. [emphases added in bold]

Interested readers should go read the whole report.

Supreme Court Rejects Guantanamo Prisoners in Habeas Case

Linda Greenhouse at the New York Times reports today that the Supreme Court turned down an appeal, 6-3, from attorneys representing two groups of Guantanamo prisoners. The two cases are Al Odah v. Bush and Boumediene v. Bush. The men involved comprise 45 individuals who have never been charged with any crime, and yet have been imprisoned by the United States for over 5 years.

At issue at this point are challenges to proceedings known as Combatant Status Review Tribunals that decide whether a detainee should be labeled an enemy combatant. Under the Detainee Treatment Act of 2005, the United States Court of Appeals for the District of Columbia Circuit has sole jurisdiction to hear appeals from the tribunal’s determination. The detainees’ lawyers argue that both the tribunals and the limited form of review in the appeals court are fatally flawed.

The court's decision, which is much more political than the split vote indicates, means that the detainees must first appeal to the U.S. Court of Appeals for the District of Columbia. But organizations, such as Human Rights First, found a silver lining in that 5 of the 9 justices made clear that they were concerned about the pace of justice in this case.

“The delay is disappointing," said Shamsi, "Still, in a separate statement and a dissent, a total of five justices sent the message that they will be watching to see how and with what speed the government proceeds in the detainees’ challenges to their imprisonment"....
“The administration’s Guantanamo detention and trial policy is irretrievably broken,” said Shamsi, who has just returned from monitoring military commission hearings at the U.S. military’s naval base in Cuba. She added, “The Supreme Court’s decision to punt review of the detainees’ cases increases pressure on Congress to restore habeas corpus, which is the Constitution’s safeguard against arbitrary and indefinite detention.”

How did a 6-3 decision get parsed as a 5-4 decision? Greenhouse explains in the Times article:

In this instance, the court offered an unusual degree of transparency, with two separate opinions accompanying the one-sentence order denying the two petitions.

One was a dissenting opinion from three justices, Stephen G. Breyer, David H. Souter and Ruth Bader Ginsburg, who voted to hear the cases as “significant ones warranting our review,” as Justice Breyer said in an opinion that spoke for the three.

The separate opinion was a statement “respecting the denial,” signed jointly by Justices John Paul Stevens and Anthony M. Kennedy. They explained why they voted against hearing the cases. They said the court should follow its usual practice for ordinary prison inmates and require “the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus.”

Greenhouse reasons that the unusual splits and votes on this decision are related to internal court politics. For one thing, the liberal wing appears uncertain whether Justice Kennedy will vote with them on this issue. So Justice Stevens, the putative leader of the liberal wing, voted with Kennedy, as he did not feel the time was right for bringing this case before the full court. Only four votes are needed to hear a case.
Meanwhile, detainee lawyers will certainly try other avenues, as suggested by Stevens and Kennedy, such as the appeal to the D.C. Circuit Court. But the case could easily go to the fall, if not next year. According to the Times, Justices Souter and Breyer were the only justices to argue for expedited appeal. Justice Ginsberg, for reasons I can't fathom, did not join her two colleagues on that portion of their decision.

It seems as if court politics mirrors U.S. politics, and the guinea pigs that are the Guantanamo prisoners must wait longer yet.

Soon, I will be writing on how the suspension of habeas and the indefinite nature of the detainees detention is an integral part of the U.S. torture program, as research has long shown that the effects of isolation and sensory deprivation are accentuated when the victim has no idea when they will stop.

The U.S. has gone so far down this sick and dangerous road, I can't predict how any of this will end.