Could Durham's CIA "Investigation" Lead to Understanding Migration of Torture Techniques?

Originally posted at MyFDL/Firedoglake

With the news that John Durham has decided to finally open criminal, and not just "preliminary," investigations into the deaths of two prisoners held by the CIA (apparently Manadel al-Jamadi and Gul Rahman) the CIA can now "exhale," as Spencer Ackerman describes it. The CIA's sigh of release is related to the fact that of at least 101 cases of CIA abuse only two might be prosecuted. Spencer quotes outgoing CIA Director Leon Panetta:

“On this, my last day as Director, I welcome the news that the broader inquiries are behind us,” Panetta wrote to the CIA staff on Thursday. “We are now finally about to close this chapter of our Agency’s history.”

Ackerman also quoted the new CIA director, General David Petraeus: "During his confirmation hearing last Thursday, Petraeus issued a public plea to take the 'rear view mirrors off the bus' and drop any inquiries into CIA torture. He also suggested that the CIA might return to abusive interrogations in “special cases” of imminent danger..."

Petraeus was approved for his new CIA position on a unanimous Senate vote. No one in Congress bothered to ask about his affiliation with former "Salvador option" specialist James Steele, or his activities in relation to the training of Iraq security forces, at the same time as U.S. forces were given a "fragmentary order" (FRAGO 242) which told U.S. forces not to interfere with the torture of prisoners they were handing over to these same Iraqi security forces. FRAGO 242 was a direct contravention of U.S. treaty obligations under the Convention Against Torture not to turn prisoners over to forces that would likely torture them.

But this is America, and it appears most of the reporting class, both mainstream and of the more alternative, "blogging" sort, have taken to heart the no-accountability plea of the Obama administration, and never bothered to ask why Petraeus was given such a free ride re questions about torture and other abuse under his command noted above, or his association with the operations of terror groups like the Wolf Brigade. (I plan to write more about this later.)

Comparing the 2002 OLC Memos with Later CIA Iterations of its "Techniques"

But not everyone is letting things slide. Marcy Wheeler is taking a closer look at the new information that we can glean from the Durham investigations. One thing she notes, which she has covered before, is how the techniques used on Rahman were never approved by the Yoo/Bybee memos. The water dousing and exposure to extreme cold were techniques noted in a 2004 letter written by the CIA General Counsel to the OLC's Jack Goldsmith, a follow-up request concerning the CIA's "Legal Principles Applicable to CIA Detention and Interrogation of Al-Qa'ida Personnel," otherwise known as the Bullet Points memo, and the earlier OLC memos . But did someone vet some of these techniques, at another time and place, for a different agency... at DoD perhaps?

I think it's worth noting that the Bullet points memo cited 17 techniques (it's really 16, though) the CIA relied upon, and it would be worth comparing those techniques in general with the ten approved torture techniques in the 2002 Yoo/Bybee memo.

Yoo/Bybee, 2002:
1. Attention grasp
2. Walling
3. Facial hold
4. Facial slap (insult slap)
5. cramped confinement
6. wall standing
7. stress positions
8. sleep deprivation
9. insects placed in a confinement box (really, the use of phobias)
10. the waterboard

-- I'd note, as I have before, that some of these techniques were really omnibus in nature, particularly "sleep deprivation", which included within its definition (from the Bradbury 2005 memo, which avers, however, to how "sleep deprivation" was already being used), "sleep deprivation, forced sleep deficit was combined, as we can see, with shackling, forced positions and forced standing, humiliation, manipulation of diet, sensory overload, and possibly other torture procedures." (quote is from my article)

Now, let's look at the Bullet Point document (4/28/2003), written (PDF) it appears by John Yoo and Jennifer Koester, with duplicated items from August 2002 asterisked; all others are "new" and presumably unapproved (though more on that in a moment).

1. Isolation
2. Sleep deprivation*
3. "reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainee)"
4. deprivation of reading material
5. "loud music or white noise (at a decibel level calculated to avoid damage to the detainee's hearing)"
6. the attention grasp*
7. walling*
8. the facial hold*
9. the facial slap (insult slap)*
10. the abdominal slap
11. cramped confinement*
12. wall standing*
13. stress positions*
14. sleep deprivation [this is a duplication in the list of #2, but is listed twice in the bullet point list, so is included here]
15. the use of diapers
16. the use of harmless insects* [though changed from the more precise use of insects in a confinement box from Yoo/Bybee 2002]
17. the waterboard*

On March 2, 2004, as Marcy Wheeler has noted, "CIA General Counsel Scott Muller [wrote] to Jack Goldsmith asking for reaffirmation of several legal documents, including [the] Legal Principles document, released with redactions". (PDF to Muller's letter)

Muller added some new techniques to the Bullet Points document, including pouring, flicking, or tossing of water ("water PFT) and "water dousing" (using water from a bucket or water hose). "Both water PFT and water dousing are used as part of the SERE training provided to US military personnel," Muller wrote, noting later in his letter, "there are virtually no health or safety concerns with water PFT as part of an approved interrogation plan."

Muller explains, too, that "[a] medical officer is present to monitor the detainee's physical condition during the water dousing session(s), including any indications of hypothermia. Upon completion of the water dousing session(s), the detainee is moved to another room, monitored as needed by a medical officer to guard against hypothermia, and steps are taken to ensure the detainee is capable of generating necessary body heat and maintain normal body functions."

These explanations about safeguards, written over a year after Rahman's death, appear to be a cover for Rahman's death, as evidently there were no safeguards used there. Or perhaps, Rahman was an experimental case, much as Zubaydah was when it came to other torture techniques ("walling" and waterboarding, for instance).

Gul Rahman died of hypothermia (and likely other torture) on November 20, 2002, shackled after a session of water dousing in a cold room in the CIA's infamous Salt Pit prison. Was there a medical monitor present? We have reason to believe that CIA doctors were at all the black sites, so what were they doing on November 20, 2002?

CIA and DoD Techniques Compared

As we have seen, by April 2004, the number of CIA known techniques have escalated to 18 (or 19, given the replication of "sleep deprivation" in the original list, which is, as I will suggest below, a typo, as most likely the second mention of sleep deprivation is really meant to be "sleep adjustment").

Finally, I think it's worth looking at the techniques approved for DoD by Rumsfeld on April 16, 2003, after the infamous "Working Group" review. I'm not going to list them all. They were divided into categories of severity. One of the techniques that led to the Working Group review was "Exposure to cold weather or water (with appropriate medical monitoring") in Jerald Phifer's October 11, 2002 memo to the Commander of Guantanamo's Joint Task Force 170 .

The DoD techniques, approved around the same time as the CIA's Bullet Point list, included (the list below is not definitive, but meant to compare/contrast with those above):

1. "Incentive/Removal of Incentive: Providing a reward or removing a privilege. 'above and beyond those that are required by the Geneva Convention, from detainees. [Sounds very much like "deprivation of reading material" in the Bullet Point document, though could be more related to sensory deprivation]
2. "Fear Up Harsh: Significantly increasing the fear level in a detainee."
3. "Pride and Ego Down: Attacking or insulting the ego of a detainee, not beyond the limits that would apply to a POW."
4. "Futility: Invoking the feeling of futility of a detainee."
5. "Mutt and Jeff: A team consisting of a friendly and harsh interrogator. The harsh interrogator might employ the Pride and Ego Down technique. [Caution: Other nations that believe that POW protections apply to detainees may view this technique as inconsistent with Geneva IIt, Article 13...]"
6. "Dietary manipulation: Changing the diet of a detainee; no intended deprivation of food or water; no adverse medical or cultural effect and without intent to deprive subject of food or water..." [bold emphasis added]
7. Environmental manipulation, including "adjusting temperature"
8. Sleep Adjustment, refers to shifting hours of sleep, i.e., playing around with circadian rhythms, "NOT sleep deprivation" [this may account for the confusion in the Bullet Points document, which appears to draw on approvals made for DoD, whatever the nature of those approvals).
9. False Flag
10. Isolation [which includes a host of caveats, including possible violations of Geneva III, Articles 13, 14, 34 and 126]

Savvy readers will remember that this was a ratcheting down of earlier DoD-approved techniques (Dec. 2002), that also included deprivation of light and auditory stimuli, stress positions, inducing stress by manipulation of detainee's fears (IPCRESS for those who remember that book/movie), 20 hr. interrogations, and hooding, among others.

It appears, from a pursuit of how the torture techniques migrated, that there was a good deal of synergy going on between DoD, CIA, and likely Special Forces. I'd point out that in the Muller letter to Goldsmith, there are some redactions, one of them concerns a redacted technique, one that is associated with SERE.

Like other approved interrogation techniques, [approximately sixteen character spaces redacted] is used as part of the Survival, Evasion, Resistance, Escape (SERE) training provided to US personnel.

The implication is that some other SERE technique was approved and the technique is being ported over from DoD. I believe the redacted technique could be "exposure to cold", which would fit the redacted area, and speaks to a technique otherwise unremarked in the Bullet Points document, but which was obviously used by CIA, as it was by DoD (under the rubric "environmental manipulation").

It's additionally worth noting there were psychologists and psychiatrists around who moved between all these agencies. Some techniques were apparently never written down or approved, but certainly used, particularly those that played on sexual humiliation or other cultural or religious sensitivities and vulnerabilities.

Factoring in the Experiments Angle

It would be a mistake to think that the documents will provide a full story of what occurred. This is especially true when it comes to considering what kinds of experimentation were actually being conducted on the detainees. Jason Leopold and I have written about the unprecedented use of the antimalarial mefloquine on all incoming detainees (see here, here, and here).

Another possible experiment may have surrounded the use of dietary manipulation, and the Seton Hall School of Law's Center for Policy and Research's study on The Guantanamo Diet noted, "The detainees’ weight varies so wildly that many have been obese briefly and underweight and malnourished at other times.... Professor Denbeaux concluded, “The most compelling question is how can the detainees’ weight swing from obese to under nourished when the medical staff is in complete control of all food intake.”

I'm looking into the latter issue, but will note that dietary manipulation, which shows up in the Bullet Point document as "reduced caloric intake", as well as DoD docs, is allowed so far as I can perceive in the current Army Field Manual (FM 2-22.3). The latter states "Depriving the detainee of necessary food, water, or medical care" is "prohibited," but I think, as in the caveat on dietary manipulation above, re the detainee's "general health" that there is a lot of room for leeway, i.e., what is considered "necessary"? Note the use of the word "intended" as regards "dietary manipulation" in the April 2003 list of DoD "techniques."

The list of AFM prohibited techniques is followed immediately by the following statement: "While using legitimate interrogation techniques, certain applications of approaches and techniques may approach the line between permissible actions and prohibited actions. It may often be difficult to determine where permissible actions end and prohibited actions begin."

No kidding.

CIA Director Panetta Skewered: "Plus Ça Change, Plus C'est La Meme Chose"

Melvin A. Goodman, senior fellow at the Center for International Policy and adjunct professor of government at Johns Hopkins University, and an intelligence agency veteran, has written a withering review at The Public Record of the first months of Leon Panetta's tenure as Director of the CIA.

According to Goodman, Panetta compares to two previous poor managers of the CIA, Porter Goss and George Tenet. Panetta "ignored the Senate’s own investigation of CIA intelligence on Iraq that documented the misuse of intelligence... [while] guaranteeing to the Senate intelligence committee that he would make no leadership changes at the CIA, even though he was taking charge of a political culture that has been dominated by the cover-up of key intelligence failures."

As a result, Panetta has left in place the deputy director of the CIA, Stephen Kappes, who was a leading figure in the operations directorate when the program of extraordinary renditions went into full swing; the introduction of the use of torture and abuse even before a memorandum from the Department of Justice sanctioned such measures; and the establishment of the secret prisons or “black sites” that the CIA used to conduct so-called “enhanced interrogation techniques.”

If President Obama and Leon Panetta were serious about stopping torture and abuse as well as extraordinary renditions that led to torture and abuse in third world countries, then why would they not adjust the chain of command to remove those high-ranking individuals responsible for these measure?

An excellent question, if you assume the predicate of the question, i.e., that Obama and Panetta are actually serious about stopping torture. In fact, decisions to utilize the Bagram prison for individuals rendered from anywhere, without recourse to judicial review, and to defend the Rumsfeld torture machinery against any exposure, while granting the administration the same claims to executive power under the post-9/11 Authorization for the Use of Military Force (AUMF) that Bush did, argues that the Panetta policy is consistent with Obama's new (old) national security policy.

The latest news concerns Panetta's announcement that he was appointing former U.S. senator Warren Rudman as a "Special Adviser" to the Senate Intelligence Committee's announced hearings on CIA "past practices in terrorist detention and interrogation."

Goodman has Rudman's number, too:

Panetta has established his own review group within the Agency but has prominently placed current members of the National Clandestine Service (NCS) in the group.

The NCS has been a major player in the culture of cover-up at the CIA, including the destruction of the 92 torture tapes that is currently being investigated by the FBI. Members of NCS would have a great interest in making sure that the Senate committee did not receive the worst of the evidence in this investigation. By placing Rudman as an intermediary between the review group and the Senate intelligence committee, Panetta has ensured himself that the most damaging information will never see the light of day. Rudman was the most active member of the Senate intelligence committee in trying to block CIA officials from testifying against the nomination of Robert Gates as CIA director in 1991.

Senator Rudman actually branded those few individuals willing to come forward as “McCarthyites” in an effort to marginalize their testimony and to make sure additional witnesses would not testify or submit written affidavits against Bob Gates.

The political maneuvering around the interrogations/torture/detentions issue is fierce. One could get whiplash from following all the twistings and turnings and gyrations of the actors involved. The latest participant is Lawrence Wilkerson, former chief of staff to Bush administration Secretary of State Colin Powell. Wilkerson's article at The Washington Note is titled "Some Truths About Guantanamo Bay."

"Some" is right. While the article has some interesting insights into the internecine struggles within the Bush administration over legitimating its policy decisions to invade Afghanistan and Iraq, and how they disregarded evidence from the beginning that the vast majority of the prisoners they were harvesting were totally innocent, the real purpose of the article is to paint Colin Powell as an innocent. Nay, even a closet rebel holding down the worst excesses of the Bush administration. It's a nice fairy tale.

The third basically unknown dimension is how hard Secretary of State Colin Powell and his deputy Richard Armitage labored to ameliorate the GITMO situation from almost day one.

For example, Ambassador Pierre Prosper, the U.S. envoy for war crimes issues, was under a barrage of questions and directions almost daily from Powell or Armitage to repatriate every detainee who could be repatriated.

This was quite a few of them, including Uighurs from China and, incredulously, citizens of the United Kingdom ("incredulously" because few doubted the capacity of the UK to detain and manage terrorists). Standing resolutely in Ambassador Prosper's path was Secretary of Defense Rumsfeld who would have none of it. Rumsfeld was staunchly backed by the Vice President of the United States, Richard Cheney....

But their ultimate cover was that the struggle in which they were involved was war and in war those detained could be kept for the duration. And this war, by their own pronouncements, had no end. For political purposes, they knew it certainly had no end within their allotted four to eight years. Moreover, its not having an end, properly exploited, would help ensure their eight rather than four years in office.

Hmm... I don't seem to remember Colin Powell denouncing the "war on terror" rhetoric anytime back in 2004, or even 2008 (despite his endorsement of Barack Obama, who also uses "war on terror" rhetoric on occasion). And wasn't Powell one of the "principals" at National Security Council meetings held in the White House that, according to an ABC report last year, "discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency", and in particular the interrogation of Abu Zubaydah in spring 2002? And was not this fact recently verified in a secret ICRC report linked to Mark Danner who published excerpts in the New York Review of Books just earlier this week? And weren't the following all present at these Principals meetings where torture was approved: "Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft"?

Of course this is all true, and Wilkerson's piece is a clever mea culpa for Powell, Armitage, and secondarily Rice, who all may be feeling the cold breath of indictments breathing down their necks. Cheney, it seems, has taken a different tack, brazenly lashing out in various interviews about the rightness of his administration's policies, and the dangers (supposedly) of following Obama's leadership changes. (Armageddon? again? -- And where is Donald Rumsfeld these days, anyway, last seen watching Oliver Stone's movie "W"?)

The cover-up of U.S. government torture continues apace. The problem is that too much is known. They are counting now on whitewash fake exposes, faux investigations, and time to take people's minds off what really happened. They are hoping that public rage towards AIG bonuses will siphon off the outrage energy, leaving little left for any concerted push for prosecutions and real government reform.

Their strategy may yet work, but it's up to the American people to stand them down. It will take as much fervor as we have got. The opposition is formidable, but our dedication is, too. And I am counting on the bedrock moral goodness of the American people. It is there. Do not doubt it. And it has not yet spoken its final word.

Democracy Now! Debate: Horton vs Ratner on Renditions, Appendix M

A fascinating debate took place at Democracy Now! yesterday. With Amy Goodman as host, Harpers Magazine's Scott Horton, and President of Center for Constitutional Rights, Michael Ratner, went at it on the subject of Obama's renditions and interrogation policies, including the existence of coercive interrogation instructions in the Army Field Manual. These policies have been a matter of some debate ever since Obama issued his executive orders regarding the issues a few weeks ago.

(An excellent companion piece to this debate would be the interviews Goodman did with former CIA analyst Melvin Goodman and Michael Ratner last November, when it was announced that Obama was staffing his transition team with John Brennan and Jami Miscik. The former was a supporter of wireless wiretapping and extraordinary rendition, while the latter was involved in the scandals around "faulty" intelligence in the run-up to the war in Iraq.)

If you haven't clicked away already to view these important interviews, here's a few snippets from the Horton/Ratner interchange to whet your appetite:

MICHAEL RATNER: I think what’s really crucial here is that, yes, there’s executive orders and, yes, there’s a lot of wiggle room, but I think the role of citizens, of all of us as human rights people, particularly, is to focus on the wiggle room and make sure that that wiggle room is not used to violate fundamental rights.

So when Scott talks about closing all the secret sites, I don’t think it’s sufficient to say, “Close all the secret sites, but let the CIA continue to hold people for short-term transitory purposes,” because I don’t know what that means. Does it mean a week? Does it mean a month? Does it mean two months? Does it mean six months? I don’t know. And so, that’s a big problem.

Secondly, when you ban the CIA from using torture, then—and we’ve spoken on it here once before on your program; it’s been addressed—this Annex M to the Army Field Manual. The Army Field Manual is what controls interrogations of the military, and it has now been applied to the CIA. There’s an annex in it that a number of human rights people, including myself, are very concerned by that allows isolation for periods of thirty days, that can be extended more, and allows sleep deprivation, where you can only give the person four hours of sleep. That kind of stuff could, under certain circumstances—certainly could constitute easily inhumane treatment and possibly torture. Now, there’s an argument that Obama may have banned that in some way in the executive order, but there’s also what he should have done, and what should be done is that should be gotten rid of it. Annex M should be taken out of the Army Field Manual.

AMY GOODMAN: When was it added?

MICHAEL RATNER: It was added in nineteen—it was added two years ago—

SCOTT HORTON: 2006.

MICHAEL RATNER: Yeah, 2006, two years ago, by the Bush administration as a way of saying, “Well, we can treat enemy combatants differently than prisoners of war.” It ought to be gotten rid of. You ought to close the CIA’s [inaudible] hole. You ought to get rid of Annex M.

And then, I think the issues you’re raising about rendition versus extraordinary rendition—you know, I think it has to end. Rendition has to end. Rendition is a violation of sovereignty. It’s a kidnapping. It’s force and violence. And let’s put it in another situation. Let’s say we were planning at some point to attack Iran. Could Iran have come in here and kidnapped the people planning the attack on Iran? Could we tomorrow go down to Cuba and kidnap Assata Shakur, who is—you know, escaped a murder charge out of New Jersey? Could we do that? Could Cuba come here tomorrow and take Posada out of Florida, the man who blew up the airliner, killing seventy-six people? Once you open the door to rendition, you’re opening the door, essentially, to all lawless world. I don’t accept that.

AMY GOODMAN: Scott Horton, why not end rendition?

SCOTT HORTON: Well, I think there has been an historical rule for rendition. My own view is that it’s acceptable only in really extraordinary cases. I mean, we look at the case involving Eichmann right after the end of World War II, who was seized when he was in Argentina and brought back to be tried. That’s an example of a rendition which I think can be justified.

But I think these cases really are quite rare. I mean, Michael is correct to point to the fact that many governments are going to view snatching a person and carrying him away as a kidnapping. That’s a criminal act. And the government should really refrain from that. We see already in Italy, we see twenty-six Americans—CIA agents, diplomats, a military attaché—being tried for kidnapping and conspiracy there because of their implementation of the extraordinary renditions program. And it’s -—

AMY GOODMAN: Meaning they took a sheikh off the streets of Milan, they kidnapped him and took him away. They flew him where? To Egypt?

MICHAEL RATNER: Yes.

SCOTT HORTON: Well, first he was taken -—

AMY GOODMAN: Where he was tortured.

SCOTT HORTON: —- to Majorca, but ultimately he wound up in Egypt, that’s correct, yeah.

AMY GOODMAN: And they’re being tried in absentia.

SCOTT HORTON: They’re being tried in —- I mean, it looks pretty clearly they’ll be convicted. I mean, it’s a major embarrassment for the United States.

And while you're in the mood to dig into the politics around the rendition controversy, Darren Hutchinson has a new posting at his blog, Dissenting Justice, dissecting the testimony of Leon Panetta before Congress on both torture and rendition. Again, a snippet (please go read the entire thing):

Yesterday, Leon Panetta, Obama's nominee to head the CIA, echoed the allegations of many members of the human rights community when he said that Bush outsourced torture through the rendition program. Today, however, Panetta has retreated from this position and says that "On that particular quote, that people were transferred for purposes of torture, that was not the policy of the United States. . . ."

Panetta also says that rendition will continue under the Obama administration but that he will try to guarantee through the State Department that rendered individuals are not tortured by officials in other countries. During the Bush administration, however, many leading human rights organizations rejected the argument that diplomatic assurances could effectively protect rendered individuals from torture.

Although the following position does not backtrack from previous statements, it is worth noting that Panetta has also indicated that the Obama administration will not prosecute Bush administration officials who utilized torture, despite the demands of many liberals. Panetta explained that the officials operated under assurances from the Justice Department that they were acting within the law (although it is doubtful that the these assurances could immunize them from violations of human rights)....

Panetta also stated during the hearing that he would ask President Obama to authorize CIA agents to utilize harsher interrogation methods than the Army Field Manual permits if necessary. Human rights activists and other liberals have insisted that governmental interrogators adhere to the manual, and Obama has issued an executive order that mandates such compliance.

Hutchinson doesn't mention Appendix M or the problems with the Army Field Manual, relying, I suppose on mainstream descriptions and received wisdom about what is in that document. I plan to contact him soon about this.