Government Hid Fact Tortured GITMO Detainee Mohammed al Qahtani Had Lifelong History of Severe Mental Illness

The Periodic Review Board (PRB) hearing for Mohammed al Qahtani on June 16, 2016 has more significance than another instance of the woefully inadequate and unjust form of adjudication for Guantanamo detainees. (For example, the PRB can consider evidence the prisoner, his lawyer, and his personal representatives cannot even see.)

No, this PRB hearing is significant for two reasons. Mohammed al Qahtani - Gitmo detainee 063 - was the first of the detainees to be subjected to an "enhanced interrogation" style torture at Guantanamo, using SERE-derived forms of torture that were approved by Secretary of Defense Donald Rumsfeld. Al Qahtani's torture was famously recorded in log form (most likely to assess him psychologically, not for intelligence reasons), and released by Time Magazine in 2006. Download and read its 83 pages here.

But as a press release today by Center for Constitutional Rights, posted below, indicates, filings made in the PRB case show that the government knew that al Qahtani suffered from schizophrenia, depression, and possibly a traumatic brain injury from a young age, but they tortured him anyway. As CCR notes, government interrogators, which included both DoD and FBI in al Qahtani's case, must have known that with severe mental illness al Qahtani was, one, not up to the stressors of rigorous interrogation (such as the isolation that the FBI and CITF interrogators wanted for him) much less the torture DoD implemented. They also had to know that he was not going to give reliable information as a result.

According to the statement by CCR attorneys Ramzi Kassem and Shayana Kadidal, an expert report by Dr. Emily Keram discovered that al Qahtani had been involuntarily psychiatrically hospitalized in Mecca a year before 9/11 for an "acute psychotic state." According to telephonic interviews with al Qahtani, his relatives, and a review of records from the hospitalization show that his history of psychosis went back to a head injury during an auto accident when he was 8 years old.

The attorneys wrote: "His family recalled 'episodes of extreme behavioral dyscontrol' over the years, including one when the Riyadh police contacted the family because they had found Mr. al-Qahtani naked in a garbage dumpster, spells of 'auditory hallucinations,' and an incident where Mr. al-Qahtani threw a new cellular phone out of a moving car because he believed it was affecting his emotional state."

Far from being a diabolical terrorist, in the months before 9/11, al Qahtani couldn't even hold down his job as a civilian driver for the Armed Forces Hospital in the Saudi city of Kharj. Dr. Keram came to a shattering conclusion - shattering because the U.S. had staked much of its "terror" interrogation/torture program on prisoners like al Qahtani:

...Dr. Keram concluded that Mr. al-Qahtani's pre-existing mental illnesses likely impaired his capacity for independent and voluntary decision-making well before the United States took him into custody, and left him "profoundly susceptible to manipulation by others." These findings call into serious question the extent to which it would be fair to hold Mr. al-Qahtani responsible for any alleged actions during that period of his life. They also cast doubt on any claims that Mr. al-Qahtani would have been entrusted with sensitive information about secret plots.

Moreover, Dr. Keram found that "Mr. al-Qahtani's pre-existing psychotic, mood, and cognitive disorders made him particularly vulnerable to [ ... ] the conditions of confinement and interrogation" his U.S. captors inflicted on him at Guantanamo under the guise of the "First Special Interrogation Plan." In fact, according to Dr. Keram, the combination of solitary confinement, sleep deprivation, extreme temperature and noise exposure, stress positions, forced nudity, body cavity searches, sexual assault and humiliation, beatings, strangling, threats of rendition, and water-boarding, amounting to "severely cruel, degrading, humiliating, and inhumane treatment" that Mr. al-Qahtani endured would have profoundly disrupted and left long-lasting effects on a person's sense of self and cognitive functioning "even in the absence of pre-existing psychiatric illness."

Applied to Mr. al-Qahtani, the torture and conditions of his confinement at Guantanamo were nothing short of devastating, exacerbating his pre-existing psychological ailments.

It is amazing that in 2016, the criminality of the U.S. government when it comes to torture only looks more inhumane and more ominous with every new revelation.

What follows is the CCR press release:

Tortured GITMO Detainee Had History of Severe Mental Illness

Attorneys Provide Records to Review Board, Urge al Qahtani’s Release to Care

June 15, 2016 – Tomorrow morning Guantánamo detainee Mohammed al Qahtani will have a hearing before a Periodic Review Board to determine whether he can safely be transferred to the custody of Saudi Arabia.

Al Qahtani was systematically tortured under a “Special Interrogation Plan”, designed to disorient, sexually humiliate, and psychologically destroy him, based on the suspicion that he might have been the “20th hijacker.” He is the only prisoner whose abuse has been formally described as “torture” by a senior U.S. government official, when the head of the Military Commissions explained that she had refused to authorize charges seeking the death penalty against him because “we tortured Qahtani.”

Filings made before the Periodic Review Board disclose, for the first time, that from an early age al Qahtani suffered from schizophrenia, major depression, and possible traumatic brain injury. He was mentally ill not only prior to his imprisonment and torture at Guantánamo, but also long before the government claims he was invited into the secretive, closely-guarded 9/11 conspiracy. Records independently located by the Center for Constitutional Rights show that al Qahtani was involuntarily committed to a mental hospital in Mecca in May 2000 because he suffered an acute psychotic break and attempted to throw himself into moving traffic. Saudi police once found him naked in a garbage dumpster, and he heard voices and suffered other classic symptoms of psychosis throughout his adolescence. A psychiatric expert’s report, based on the hospitalization records, other investigative work, and many hours of examination of al Qahtani, was filed with the Review Board as well.

“Mohammed was already mentally ill long before the time when the government alleges that he first met anyone involved in plotting anything. It would be passing cruel to put a person like that on trial or to continue to imprison him,” said Ramzi Kassem, a law professor at the City University of New York whose legal clinic represents al Qahtani with the Center for Constitutional Rights.

“The obvious manifestations of Mohammed's illness – hearing voices, speaking to nonexistent people – were plain to see even before the worst of his abuse began. The people who designed and carried out his torture-and-interrogation plan must have known in advance that it could not possibly produce reliable information,” said Shayana Kadidal, Senior Managing Attorney of the Guantánamo project at CCR, which has represented al Qahtani since 2005. “Between his torture and his psychosis, he can never be tried. Rather than warehouse him forever at Guantánamo, Mohammed should be committed to a mental hospital in Saudi Arabia that can care for someone with his conditions.”

Read the attorneys’ statement to the Periodic Review Board.

Read more about Mohammed al Qahtani on his case page.

The Center for Constitutional Rights has led the legal battle over Guantánamo for more than 14 years – representing clients in two Supreme Court cases and organizing and coordinating hundreds of pro bono lawyers across the country, ensuring that nearly all the men detained at Guantánamo have had the option of legal representation. Among other Guantánamo cases, the Center represents the families of men who died at Guantánamo, and men who have been released and are seeking justice in international courts.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. Visit www.ccrjustice.org. Follow @theCCR.

What can one say in conclusion? That the U.S. government waited years to reveal this information? That they never bothered to check on the actual life of someone they claimed was a "terrrorist"? That the moral standing of this country is next to nil?

We are still waiting for the kinds of accountability that the massive program of CIA and DoD torture demands. Moreover, the collaboration with torture also included, as revelations over the years have shown, include other state actors, most notably the FBI, but also NCIS, the Bureau of Prisons, and perhaps, though it seems incredible, even the staff of the Senate Intelligence Committee (circa 2003).

I wish the best for Mr. al Qahtani, and demand that the PRB find him releasable, and send him on his way back to try and construct some kind of life for himself after the nightmare of Guantanamo.

I do want to add this thought: it turns out that both the CIA test case for their torture program, Abu Zubaydah, and the DoD test case for their torture program, Mohammed al Qahtani, suffered from severe brain trauma. That is too strange to be a coincidence. What was really going on here?

Will Military Torture Be Transferred to the United States?

Originally posted at Firedoglake

My last article [on this topic] reintroduced the topic of abuse and torture as being used in the current version of the Army Field Manual (AFM), and particular in its infamous "Appendix M." From time to time, the implications of actually using the AFM has theatened to break through the right-wing monopoly of discussion about government interrogation policy. Consider this exchange, last May, between NBC's Chuck Todd and White House Press Secretary Robert Gibbs:

Q What is he going to say to those who make the argument, which has been made, he's actually just changing rhetoric, he's not changing policy that much? With Guantanamo, you're essentially calling for a way of moving Guantanamo. You're just changing the name.

MR. GIBBS: Well, ask that question of some of our severe detractors on this and see if you get agreement on that. I actually don't think that's the case. I think what the -- the decision that the President made on military commissions is something that's envisioned that's much different than what was passed in Congress and signed by the President in late September and early October in 2006.

I think, as we've talked about here, enhanced interrogation techniques are something that this President has outlawed as part of the actions of this administration. I don't think those are --

Q Yet the fine print, there's open to interpretation about what different techniques could be used.

MR. GIBBS: How so?

Q In the argument that there's definitely some words in there that one could interpret that it's --

MR. GIBBS: Chuck, I don't think you're -- let me understand -- I don't think you're intimating that the Army Field Manual would allow one to do --

Q There have been some interpretations that there are --

MR. GIBBS: I can assure you that's not how the Army interprets the Army Field Manual, and I assume that generals in the Army and the military that are in charge of ensuring that the procedures of the military are in line with the laws of this country -- I don't think you're intimating that people in the Army are inferring different things about their own field manual, because I know that's not the case.

Gibbs appears to think that the military can be trusted to ensure "the procedures of the military are in line with the laws of this country," eviscerating the idea of Congressional oversight. What Todd calls "fine print" in the Army Field Manual -- "open to interpretation" -- others have called torture or abuse.

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.

The Center for Constitutional Rights wrote last year:

Appendix M of the Army Field Manual... allows the use of techniques such as prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners. These techniques, especially when used in combination as permitted by the AFM, constitute cruel, inhuman and degrading treatment, and in some cases, torture. These techniques have caused documented, long-lasting psychological and physical harm and were condemned by a bipartisan congressional report released last month, as well as by the Bush-appointed head of the military commissions at Guantanamo.

"In some cases, torture." As bmaz pointed out almost exactly one year ago, when Guantanamo Convening Authority judge Susan Crawford dismissed charges against Guantanamo prisoner Mohamed al-Qahtani, telling Washington Post reporter Bob Woodward that the U.S. tortured al-Qahtani:

Crawford has exposed to bright sunlight the lie that is Barack Obama’s, and other politicians’, simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.

Now -- all delays due to 23-year-old would-be bombers aside -- Obama is set to transfer the Guantanamo regime to a nearly abandoned, rural Illinois prison. Will that include the transfer of Appendix M interrogations, and other abusive elements of the AFM protocol? These are questions we need to be asking. Or will progressive bloggers hope that Chuck Todd carries their fire for them?

Next: "Obama's Interrogation Policy and the Use of Torture in the Army Field Manual"

New Soldz Article Pounds Gelles/FBI Story on Al Qahtani Interrogation

Psychologist Stephen Soldz has written a scathingly accurate article on ex-PENS task force member Michael Gelles, and the truth behind the myth that Gelles and others intervened at Guantanamo and tried to stop the abusive interrogation of Mohamed Al Qahtani and replace it with a benign and more effective form of "rapport"-based interrogation.

Soldz describes, in The "Ethical Interrogation": The Myth of Michael Gelles and the al-Qahtani Interrogation, how the FBI and other interrogators working in the Criminal Investigative Task Force at Guantanamo in late 2002, proposed an interrogation approach to a psychiatrically debilitated Al Qahtani that would exploit months of isolation and abuse with -- another year of near-total isolation! 

Soldz quotes "former police investigator and veteran Army counterintelligence operative David DeBatto" on the likely result of the plan Gelles was proposing:

"That [the initial three-months isolation] is an excessively long time and on the face of it, violates the UCMJ [Uniform Code of Military Justice] and international law. Two major problems I have with this is first, solitary is a punishment reserved for the worst kind of behavior by inmates in a prison, not for refusing to answer questions. Second, it is the worst possible way to interrogate anyone and will almost always produce negative results."

There's a lot more I could say about Dr. Soldz's excellent article, but for now I simply want to direct my readership to it. I'll have more to comment in a few days.

In the meantime, I'll note that in the same batch of material from the ACLU FOIA release upon which Stephen drew for the article, I found this strange admission from an anonymous member of the FBI's Behavioral Analysis Unit, in a memo addressed to Raymond S. Mey in FBI's Counterterrorism Unit, Marion Bowman (Senior Counsel for National Security Affairs) and various Special Agents in the Bureau's Miami office. The memo's date is 5/30/2003. (Note, Mey's name is redacted on the latest version of this memo, which otherwise unredacts much of the text; but Mey's name appears on earlier versions.) Emphasis is added to quote below:

Although SERE techniques may be effective in eliciting tactical intelligence in a battlefield context, the reliability of information obtained using such tactics is highly questionable, not to mention potentially legally inadmissible in court.

Now, since this memo was written to complain about the use of "aggressive interrogation tactics" at Guantanamo, which we know were based on the SERE techniques, it's interesting to see this FBI agent note that such techniques "may be effective" on the battlefield. Why even make this comment? Was it understood that Special Forces were already using such techniques in theater operations? Is torture okay in certain circumstances?

Just asking...

More U.S. Videos of Torture, Judge Orders Some Be Made Available to Defense Team

The following is a most important press release from Center for Constitutional Rights. After years of litigation, we are just now learning that the torture interrogation of Mohammed al Qahtani was videotaped. The government sought, and still seeks to block that evidence from coming forward. But now they have been thwarted, in part, by a legal decision which allow one week of these tapes to be made available to the CCR attorneys in the case.

Government Admits Guantánamo Detainee Mohammed al Qahtani’s Torture Videotaped

CCR Blasts Government for Failing to Disclose Existence of Videotapes for Seven Years

Contact: press@ccrjustice.org

October 5, 2009, New York – The Center for Constitutional Rights (CCR) learned today of the existence of video and audio tapes of the abusive interrogations of client Mohammed al Qahtani, the victim of the “First Special Interrogation Plan” personally overseen by former Secretary of Defense Donald Rumsfeld.

“After the intense scrutiny of the government’s torture and interrogation of Mr. al Qahtani, it is shocking that the government has hidden the existence of these tapes from the public for so many years,” said CCR Attorney Gitanjali S. Gutierrez. “The government’s interrogation of him has been the topic of multiple military, Justice Department and congressional investigations. These tapes should have been acknowledged long ago.”

Until recently, the Government had adamantly denied that any U.S. personnel engaged in acts of torture during Mr. al Qahtani’s interrogation, but on January 14, 2009, Military Commission Convening Authority Susan Crawford conceded that by subjecting Mr. al Qahtani to systematic 20-hour interrogations, prolonged sleep deprivation, 160 days of severe isolation, forced nudity, sexual and religious humiliation, and other aggressive interrogation tactics, the government had engaged in acts of torture. Much of this information appeared in interrogation logs leaked to the press as early as 2006

Said CCR Executive Director Vincent Warren, “Mr. al Qahtani’s torture is already well-established, with a clear paper trail that leads all the way up the chain of command to the desk of Donald Rumsfeld. The revelation of these tapes indicates the government carefully documented horrific evidence of torture and abuse at Guantánamo. The only question that remains is whether the people ultimately responsible for it will be held accountable for breaking the law and breaking faith with our system of justice.”

Mr. Al Qahtani has been incarcerated at Guantánamo since February 2002. Throughout his imprisonment, he has consistently maintained that he was repeatedly tortured and threatened with torture by U.S. military and civilian interrogators. And since Mr. al Qahtani filed his habeas petition in October 2006, he has continued to assert that any alleged admissions he made to U.S. personnel were extracted through this torture and threats of torture.

The government never disclosed the existence of these tapes as exculpatory information in Mr. al Qahtani’s habeas case. CCR had filed a motion in February 2009 to compel the government to turn over exculpatory evidence in their client’s case and to hold the government in contempt for it’s “flagrant violation” of a judge’s November 2008 order to do so. Judge Thomas F. Hogan issued an order in November 2008 (amended in December 2008) requiring the government to turn over promptly any exculpatory evidence it had on the men detained at Guantánamo to their attorneys. The government filed what was essentially a second motion for an extension of time on January 30, 2009. Since the original filing in June 2008, the government has twice delayed its compliance with the court’s orders, engaging in what CCR attorneys described as “improper self-help by granting itself an indefinite extension of time.”

Finally, CCR and co-counsel, Sandra Babcock, filed a motion for discovery in March 2009 seeking any video tapes of Mr. al Qahtani’s interrogation and numerous other records. After seven months of discovery disputes, the court issued the publicly-filed order today.

The videotapes the government is required to produce will reveal the time period at the end of three months of intensive solitary confinement and isolation that immediately preceded the implementation of the “First Special Interrogation Plan,” a regime of systematic torture techniques approved by former Secretary of Defense Donald Rumsfeld for use against Mr. al Qahtani. In a letter to his superiors reporting possible abuse of men in U.S. custody, T.J. Harrington, Deputy Assistant Director, Counterterrorism Division, FBI described Mr. al Qahtani during this time as “evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reportedly hearing voices, crouching in a corner of the cell covered with a sheet for hours on end).”

Mr. al Qahtani is represented by CCR and co-counsel Professor Sandra Babcock, Center for International Human Rights, Northwestern University School of Law.

For more information on Mohammed al Qahtani’s case, click here.

CCR has led the legal battle over Guantanamo for the last six years – sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA “ghost detainee” there. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. In addition, CCR has been working to resettle the approximately 60 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.

Attached Files

* MAQ Order to Disclose Videotapes (PDF)
* TJ Harrington Ltr 7 14 04 (PDF)

Judge Hogan did not release all the video and audio tapes the government has.

To provide relevant information to Petitioner and yet to ease the burden on the Government, the Court will order the Government to produce only those audio/video recordings of Petitioner created between November 15, 2002 and November 22, 2002.

The week in question covers the seven days prior to the beginning of the interrogation log for al-Qahtani, leaked to Time Magazine in 2006. That log begins on November 23, 2002. By Nov. 23, as we know from the log, al-Qahtani had announced he was on hunger strike. He repeats it numerous times during the first day of the interrogation log to which we have access, which speaks to perseveration and already a state of disabled functioning, if not also, a determined will to resist and hold onto a shred of his self integrity.

It’s amazing that we are only hearing of these tapes now. Let’s recall what the torturers were saying about videotaping at Guantanamo in October 2002, during a period prior to that about to be released to Al Qahatani's CCR defense team. Per the minutes of one major meeting at Guantanamo during that autumn:

– At this point a discussion about whether or not to video tape the aggressive sessions, or interrogations at all ensued.

Becker: Videotapes are subject to too much scrutiny in court. We don’t want the LEA people in aggressive sessions anyway.

LTC Beaver: LEA choice not to participate in these types of interrogations is more ethical and moral as opposed to legal.

Fredman: The videotaping of even totally legal techniques will look “ugly”.

Becker: (Agreed)

Al-Qahtani was also discussed:

LTC Phifer: Harsh techniques used on our service members have worked and will work on some, what about those?

MAJ Leso: Force is risky, and may be ineffective due to the detainees’ frame of reference. They are used to seeing much more barbaric treatment.

Becker: Agreed.

– At this point a discussion about ISN 63 [Mohammed al-Qahtani] ensued, recalling how he has responded to certain types of deprivation and psychological stressors. After short discussion the BSCT continued to address the overall manipulation of the detainees’ environment.

BSCT continued:

* Psychological stressors are extremely effective (ie, sleep deprivation, withholding food, isolation, loss of time)

COL Cummings: We can’t do sleep deprivation

LTC Beaver: Yes, we can — with approval.

Bravo to CCR for all their work on this. Together with ACLU and PHR, the torturers’ crimes and schemes will ultimately be fully revealed. I believe that accountability will be realized, and this country turned around from the disastrous course of the past decade. But the U.S. people will have to help.

Time again to send a donation to CCR, I’d say.

Minutes from a Torturers' Meeting at Guantanamo

What follows below was transcribed from a PDF of the original document (or a copy of same -- if PDF link is broken, the document can be found here at Tab 7), posted on the website of Senator Carl Levin, Chair of the Senate Armed Services Committee. It, along with a wealth of other documentation, was used in preparing the SASC's highly critical report late last year on interrogations and detainee treatment, which concluded that high officials bore responsibility for the mistreatment and torture of prisoners under U.S. control.

The document below constitutes the minutes from a meeting held at Guantanamo in early autumn, 2002. It is presented with minimal editorial comment, as I believe it speaks for itself. So far as I know, no other transcription of this document, minus certain excerpts, has ever been published or posted before. It is done so here as a public service, to promote the position that prosecution of the government's torture crimes is of paramount importance.

Cast of characters:
Lt. Col. Diane Beaver, the Staff Judge Advocate at Guantanamo; Lt. Col. Jerald Phifer, who sent a memo to Maj. Gen. Michael E. Dunlavey, Commander of Joint Task Force (JTF) 170, requesting approval for more "severe interrogation techniques" (Dunleavy told a superior that Phifer was his "point of contact" on interrogation matters); Major John Leso, a military psychologist, who was present at the torture interrogation of Mohammed al-Qahtani (Leso, like Major Burney in the minutes, were members of the Behavioral Science Consultation Team [BSCT] -- Burney is reportedly a psychiatrist -- last month, the Convening Authority of Military Commissions at Guantanamo dropped the charges against al-Qahtani, concluding his treatment amounted to torture); Dave Becker, representing the Defense Intelligence Agency; and John Fredman, then chief counsel to the CIA's counter-terrorism center.

I'd like to make only two observations that I think are relevant at this point. One, it is clear that coercive interrogations amounting to torture had already begun at Guantanamo prior to this October 2002 meeting. In the document itself, the participants have a general discussion recalling how prisoner "063", Mohammed al-Qahtani, "has responded to certain types of deprivation and psychological stressors," indicating, perhaps, that al-Qahtani was some kind of experimental test case. (H/T to Trudy Bond, who noted this fact in an article published at Counterpunch earlier this year.)

Secondly, it struck me when transcribing these minutes the degree to which John Fredman, the CIA legal counsel and rep to this meeting, dominated the discussion. All the participants seem to bow to his authority, especially on legal issues, with Lt. Col. Beaver chiming in as well. While the BSCT members -- who are the medical professionals present -- appear to criticize "fear-based" interrogations techniques at the beginning of the meeting, in favor of rapport-building, as well as abusive environmental "approaches," as the discussion veers more and more to propositions regarding blatant torture, like the "wet towel" (waterboarding) technique, nary a protest is heard from these individuals, who have by their actions disavowed the ethics of their medical and/or psychological professions.

One final note: the acronym LEA refers to Law Enforcement Agency, and basically refers to the FBI. The acronym SERE, which appears throughout, refers to the Survival, Evasion, Resistance, Escape program found in the various military branches. Meant to inoculate U.S. servicemen against the rigors of enemy capture and torture, Sen. Levin's investigation documented the various ways in which SERE methods were reverse-engineered to provide torture techniques for use by the military and CIA on prisoners held under U.S. control. So far as we know, the first approach by the Defense Department (specifically, by DoD Chief Counsel William J. Haynes, II) to the Joint Personnel Recovery Agency, parent department for SERE, regarding information on SERE techniques, was in December 2001, well before any legal memo by Bush's Office of Legal Counsel allowing (illegally) for abusive treatment of detainees. There can be no alibi that DoD was following legal advice or protected by presidential order at that point in time.

Re transcription: I have tried to follow as much as possible the layout, spelling, punctuation, and font emphasis of the original. Bullets have been changed to asterisks, arrows to long dashes. All brackets and parentheses are as in original, unless otherwise indicated.

Counter Resistance Strategy Meeting Minutes

Persons in Attendance:

COL Cummings, LTC Phifer, CDR Bridges, LTC Beaver, MAJ Burney, MAJ Leso, Dave Becker, John Fredman, 1LT Seek, SPC Pimentel

The following notes were taken during the aforementioned meeting at 1340 on October 2, 2002. All questions and comments have been paraphrased:

BSCT Description of SERE Psych Training (MAJ Burney and MAJ Leso)

* Identify trained resisters
* Al Qaeda Training

* Methods to overcome resistance
* Rapport building (approach proven to yield positive results)
* Friendly approach (approach proven to yield positive results)
* Fear Based Approaches are unreliable, ineffective in almost all cases

* What's more effective than fear based strategies are camp-wide environmental stratetgies designed to disrupt cohesion and communication among detainees
* Environment should foster dependence and compliance

LTC Phifer: Harsh techniques used on our service members have worked and will work on some, what about those?

MAJ Leso: Force is risky, and may be ineffective due to the detainees' frame of reference. They are used to seeing much more barbaric treatment.

Becker: Agreed.

-- At this point a discussion about ISN 63 [Mohammed al-Qahtani] ensued, recalling how he has responded to certain types of deprivation and psychological stressors. After short discussion the BSCT continued to address the overall manipulation of the detainees' environment.

BSCT continued:

* Psychological stressors are extremely effective (ie, sleep deprivation, withholding food, isolation, loss of time)

COL Cummings: We can't do sleep deprivation

LTC Beaver: Yes, we can -- with approval.

* Disrupting the normal camp operations is vital. We need to create an environment of "controlled chaos"

LTC Beaver: We may need to curb the harsher operations while ICRC [International Committee of the Red Cross -- added by transcriber] is around. It is better not to expose them to any controversial techniques. We must have the support of the DOD.

Becker: We have had many reports from Bagram about sleep deprivation being used.

LTC Beaver: True, but officially it is not happening. It is not being reported officially. The ICRC is a serious concern. They will be in and out, scrutinizing our operations, unless they are displeased and decide to protest and leave. This would draw a lot of negative attention.

COL Cummings: The new PSYOP plan has been passed up the chain

LTC Beaver: It's at J3 at SOUTHCOM.

Fredman: The DOJ has provided much guidance on this issue. The CIA is not held to the same rules as the military. In the past when the ICRC has made a big deal about certain detainees, the DOD has "moved" them away from the attention of the ICRC. Upon questioning from the ICRC about their whereabouts, the DOD's response has repeatedly been that the detainee merited no status under the Geneva Convention. The CIA has employed aggressive techniques on less than a handful of suspects since 9/11.

Under the Torture Convention, torture has been prohibited by international law, but the language of the statutes is written vaguely. Severe mental and physical pain is prohibited. The mental part is explained as poorly as the physical. Severe physical pain described as anything causing permanent damage to major organs or body parts. Mental torture described as anything leading to permanent, profound damage to the senses or personality. It is basically subject to perception. If the detainee dies you're doing it wrong. So far, the techniques we have addressed have not proven to produce these types of results, which in a way challenges what the BSCT paper says about not being able to prove whether these techniques will lead to permanent damage. Everything on the BSCT white paper is legal from a civilian standpoint. [Any questions of severe weather or temperature conditions should be deferred to medical staff.] Any of the techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual. Medical personnel should be present to treat any possible accidents. The CIA operates without military intervention. When the CIA has wanted to use more aggressive techniques in the past, the FBI has pulled their personnel from theatre. In those rare instances, aggressive techniques have proven very helpful.

LTC Beaver: We will need documentation to protect us

Fredman: Yes, if someone dies while aggressive techniques are being used, regardless of cause of death, the backlash of attention would be extremely detrimental. Everything must be approved and documented.

Becker: LEA personnel will not participate in harsh techniques

LTC Beaver: There is no legal reason why LEA personnel cannot participate in these operations

-- At this point a discussion about whether or not to video tape the aggressive sessions, or interrogations at all ensued.

Becker: Videotapes are subject to too much scrutiny in court. We don't want the LEA people in aggressive sessions anyway.

LTC Beaver: LEA choice not to participate in these types of interrogations is more ethical and moral as opposed to legal.

Fredman: The videotaping of even totally legal techniques will look "ugly".

Becker: (Agreed)

Fredman: The Torture Convention prohibits torture and cruel, inhumane and degrading treatment. The US did not sign up on the second part, because of the 8th amendment (cruel and unusual punishment), but we did sign the part about torture. This gives us more license to use more controversial techniques.

LTC Beaver: Does SERE employ the "wet towel" technique?

Fredman: If a well-trained individual is used to perform [sic] this technique it can feel like you're drowning. The lymphatic system will react as if you're suffocating, but your body will not cease to function. It is very effective to identify phobias and use them (ie, insects, snakes, claustrophobia). The level of resistance is directly related to person's experience.

MAJ Burney: Whether or not significant stress occurs lies in the eye of the beholder. The burden of proof is the big issue. It is very difficult to disprove someone else's PTSD.

Fredman: These techniques need involvement from interrogators, psych, medical, legal, etc.

Becker: Would we blanket approval or would it be case by case?

Fredman: The CIA makes the call internally on most of the types of techniques found in the BSCT paper, and this discussion. Significantly harsh techniques are approved through the DOJ.

LTC Phifer: Who approves ours? The CG? SOUTHCOM CG?

Fredman: Does the Geneva Convention apply? The CIA rallied for it not to.

LTC Phifer: Can we get DOJ opinion about these topics on paper?

LTC Beaver: Will it go from DOJ to DOD?

LTC Phifer: Can we get to see a CIA request to use advanced aggressive techniques?

Fredman: Yes, but we can't provide you with a copy. You will probably be able to look at it.
An example of a different perspective on torture is Turkey. In Turkey they say that interrogation at all, or anything you do to that results in the subject betraying his comrades is torture.

LTC Beaver: In the BSCT paper it says something about "imminent threat of death",...

Fredman The threat of death is also subject to scrutiny, and should be handled on a case by case basis. Mock executions don't work as well as friendly approaches, like letting someone write a letter home, or providing them with an extra book.

Becker: I like the part about ambient noise.

-- At this point a discussion about the ways to manipulate the environment ensued, and the following ideas were offered:

* Medical visits should be scheduled randomly, rather than on a set system
* Let detainee rest just long enough to fall asleep and wake him up about every thirty minutes and tell him it's time to pray again
* More meals per day induce loss of time
* Truth serum; even though it may not actually work, it does have a placebo effect.

Meeting ended at 1450.

***********
The Immediate Aftermath

It is worth noting some of the administrative responses to this meeting. On October 11, a week after the Counter Resistance Strategy Meeting, LTC Jerald Phifer wrote a request to Major General Michael B. Dunleavy, Commander at Guantanamo, requesting use of Counter-Resistance Strategy techniques. He divided them into three categories of intensity.

Category I included direct approach and rapport building techniques, but also false identification of national identity of the interrogator, yelling at the detainee, and "techniques of deception." Category II techniques included use of stress position, isolation up to 30 days, light/auditory deprivation, 20 hour interrogations, nudity, hooding, and use of phobias "to induce stress." Category III techniques included the "wet towel" (waterboarding) treatment, threats of death to the prisoner or his family, and exposure to cold.

On the same day, the Staff Judge Advocate at Guantanamo, LTC Diane E. Beaver, wrote a legal brief that concluded "the proposed strategies do not violate federal law." She did suggest, though, that Category II and III techniques undergo further legal review "prior to their commencement." Still on the same day, Maj. Gen. Dunleavy wrote a memo to the Commander of U.S. Southern Command asking for approval of the techniques. He concluded, without exception, that "these techniques do not violate U.S. or international laws."

On October 25, 2002, General James T. Hill, Commander at SOUTHCOM, forwarded the request to use the techniques to the Joint Chiefs of Staff. While he worried about the legality of some of the Category III techniques, particularly the death threats, he urged them to consider that he wanted "to have as many options as possible at my disposal."

A few days after that, on October 28, 2002, Mark Fallon, Deputy Commander at Criminal Investigation Task Force (CITF) sent a memo to a colleague. He was uneasy about what he had read in the Counter Resistance Strategy Meeting Minutes. He told his colleague the comments of Beaver and others "looks like the kinds of stuff Congressional hearings are made of." The techniques "seem to stretch beyond the bounds of legal propriety."

Quotes from LTC Beaver regarding things that are not being reported give the appearance of impropriety.... Talk of "wet towel treatments" which results in the lymphatic gland reacting as if you are suffocating, would in my opinion; shock the conscience of any legal body looking at using the results of the interrogations or possibly even the interrogators. Someone needs to be considering how history will look back at this.

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

On the U.S. Duty to Prosecute War Crimes (Part I)

Oh, beat the drum slowly and play the fife lowly...

In the United States, questions around prosecution of war crimes revolve around the use of torture by Bush Administration officials, as well as the illegality of the U.S. attack on Iraq, which resulted in over a million deaths.

As regards torture, the Bush administration's head judge at Guantanamo has already admitted that torture was used at that facility, and dropped the charges against one high-profile detainee, Mohammad al-Qatani, as a result.

When it comes to the attack on Iraq, there was this report in the Guardian late last year:

Addressing the British Institute of International and Comparative Law last night, [former British senior judge, retired, Lord] Bingham said: "If I am right that the invasion of Iraq by the US, the UK, and some other states was unauthorised by the security council there was, of course, a serious violation of international law and the rule of law. "For the effect of acting unilaterally was to undermine the foundation on which the post-1945 consensus had been constructed: the prohibition of force (save in self-defence, or perhaps, to avert an impending humanitarian catastrophe) unless formally authorised by the nations of the world empowered to make collective decisions in the security council ..."

If you read for awhile the various blog and mainstream press opinion pieces on the issue of prosecuting American officials, you will come across a good deal of pessimism and ignorance. Some of the critics of prosecuting are well-informed, but present one-sided views of the difficulties involved in making such a prosecution. But UN officials seem to find the issue quite straightforward.

From The Jurist:

[A]ccording to a statement made by UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Manfred Nowak in an interview Tuesday with German television program ZDF Frontal 21. Nowak said that such actions constituted a violation of the UN Convention Against Torture, to which the US is a party. Nowak noted that although evidence is available to press charges, he does not know whether US law would recognize the interrogation techniques used as forms of torture.

There are a number of instruments whereby U.S. officials are vulnerable to war crimes charges. The UN Convention Against Torture required implementing laws to be established in signatory states. Consequently, the U.S. "enacted 18 U.S.C. §§ 2340 and 2340A, which prohibit torture occurring outside the United States (torture occurring inside the United States was already generally prohibited under several federal and state statutes criminalizing acts such as assault, battery, and murder)" (see CRS report).

Besides CAT, the U.S. has a duty to prosecute Bush administration officials, both civilian and military (and intelligence), for torture and cruel, inhuman and degrading treatment of prisoners. H/T to Charles Gittings (emphasis added):

“The High Contracting Parties [signatories to the Geneva conventions, which includes the U.S.] undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

“Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

“In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.”

Geneva III POWs, art. 129, Geneva IV Civilians, art. 146; see also 18 USC 2441(c)(1).

The issue seems clear. But opponents of prosecution, or sometimes just political pessimists who deem themselves "realists," cite the issue of prosecutorial discretion, believing there is no provision within, for instance, the CAT treaty, that requires prosecution. U.S. prosecutors are free to use their discretion in selecting whom they investigate and charge. This is not entirely wrong, although this passage from Chris Ingelse’s book The UN Committee Against Torture: An Assessment, puts the issue of prosecutorial discretion into greater legal context (H/T Kevin Jon Heller -- emphases added):

Article 7, par. 2 grants the authorities a discretionary power in terms of whether or not they prosecuted a suspect of torture. The Committee confirmed — in abstract terms — that the discretionary power was not unlimited and could not be determined on the grounds of national law only. In any event, the discretionary power could not extend as far as to allow those responsible for torture to escape punishment. The Committee found that there had to be opportunities for an individual to submit a complaint against prosecutors who fail to prosecute suspects of torture. If necessary, there had to be an opportunity for the victim himself to initiate criminal proceedings against the person suspected of torture.

As a matter of principle, the duty to prosecute is well established in international law. Ironically, it was the United States, along with its World War II allies, that pushed to establish this principle.

From University of Queensland Law Journal re "The United Nations and International Criminal Law" (emphases added):

In the NurembergTrial of the Major War Criminals, the International Military Tribunal held that ‘international law imposes duties and liabilities upon individuals as well as states’ and that ‘individuals can be punished for violations of international law.’[33] The Tribunal went on to proclaim:

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

The Nuremberg Tribunal even went so far as to hold that the doctrine of nullim crimen sine iure must not be allowed to stand in the way of bringing persons to justice for acts which they must have known amounted to criminal conduct under international law:

To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished.

The next period will determine whether the U.S. will continue to alibi U.S. war criminals. The calls for some kind of investigatory commission should not be definitively ruled out, but any decision on such must follow a determination of whether to prosecute Bush, Cheney, Rumsfeld, Addington, Yoo, Rice, Haynes, and all the gang for crimes against humanity. To fail to do so, especially for lame excuses such as prosecutorial discretion, is in itself a crime and a violation of treaty obligations. Any use of "Truth" or "Truth and Reconciliation" commissions as a way to bypass the necessary prosecutions, as some fear is the plan of establishment Democratic Party liberals, should be opposed.

As Glenn Greenwald put it so well in an article last month:

The principal purpose of the Convention is to remove the discretion involved in prosecuting acts of torture and to bar the very excuses which every torturing society proffers and which our own torturing society is now attempting to invoke ("we were dealing with real threats; there were 'exceptional circumstances' that justified it; we enacted laws legalizing the torture; our leaders meant well; we need to move on").

International treaties which the U.S. signs and ratifies aren't cute little left-wing platitudes for tying the hands of America. They're binding law according to the explicit mandates of Article VI of our Constitution. Thus, there simply is no way to (a) argue against investigations and prosecutions for Bush officials and simultaneously (b) claim with a straight face to believe in the rule of law, that no one is above the law, and that the U.S. should adhere to the same rules and values it attempts to impose on the rest of the world.

For more on this issue, please click here to read Part II, which looks at relevant Supreme Court decisions, and the intervention of the notorious John Yoo into the treaty issue.

"Medical Ethics and Torture: Revising the Declaration of Tokyo"

The following is a press release from The Lancet, describing an important new article on the question of medical ethics in relation to the torture of prisoners. It is reproduced here:

A Viewpoint in this week’s edition of The Lancet discusses how the 1975 Declaration of Tokyo, on Medical Ethics and Torture, could be further revised to make it more relevant to the world today — making sure that physicians who are complicit in torture of prisoners are held to account. The Viewpoint is written by Dr Steven Miles, Center for Bioethics, University of Minnesota, MN, USA, and Dr Alfred Freedman, New York Medical College, USA.

Medical complicity with torture and abuse of prisoners is common in the roughly 100 countries that practise torture. Physicians devise ways to keep physical scars to a minimum, certify prisoners as fit for abuse, monitor vital signs during mistreatment, and give approval to intensify abuse. A third to half of torture survivors report physicians overseeing the abuse; this number does not include those who do not see physicians being accomplices of the abuse and those who die of torture that a physician, either willingly or under coercion, certifies as death by natural causes. Many more physicians are complicit with abusing prisoners than work in programmes to treat torture survivors.

The World Medical Association’s (WMA) Declaration of Tokyo has been a landmark event in medical ethics. It was passed in 1975, and has undergone several revisions. The declaration condemns medical participation in torture, and cruel, inhuman, or degrading treatment, or any act to diminish the ability of the victim to resist such treatment. It serves as a template for many medical codes. Although the WMA updated the Declaration of Tokyo in 2006, a revised version might further clarify medical roles and duties in countries where prisoners are abused.

The authors propose four manners in which the code should be revised. First, it should incorporate authoritative definitions of torture and cruel, inhuman, and degrading treatment, to harmonise this medical ethics code with international law and, thereby, communicate the accountability of physicians to international law. Second, a revision of the Declaration of Tokyo should incorporate some of the good ideas recently endorsed by various clinical societies — for example, a death certificate should be publicly posted for every death in custody, as is currently mandated for prisoners of war by a Geneva Convention. False or non-issued death certificates conceal torture. Third, a revision of the Declaration of Tokyo must commend ways for holding physicians professionally and criminally accountable for abetting abuse of prisoners — including those who flee the country where the abuse occurred and attempt to obtain a licence to practice elsewhere. Finally, a revision of the Declaration of Tokyo should be readable by a person with 12 years of education — the current version needs advanced collegiate-grade reading skills, with its average sentence containing more than 30 words.

The authors conclude: “The medical community is key to the campaign against torture. Governments that practice torture need complicity of prison medical personnel. Furthermore, a profound link exists between domestic torture and worldwide medical solidarity against torture. A physician community that acquiesces to abuses by its members undermines its credibility in protesting against foreign medical communities or colleagues who abet torture. Accordingly, physicians and their societies must act on their duty to promote prisoners’ wellbeing, access to prisons, skills at identifying abuse, and membership of civil society.”

Of special interest in Miles and Freedman's article is their delineation of what they call unofficial teaching definitions of torture and cruel, inhumane, and degrading treatment or punishment. (The article covers the de jure definitions, as well). These two categories are often buried in legalese and, therefore, confusion. Their "unofficial definition" is meant to cut through the obfuscations:

Torture is any act that intends to cause a prisoner to feel severe physical or mental pain or suffering. Torture occurs when a government official orders, supervises, consents to, allows, or performs acts that cause such pain or suffering.

Torture is unacceptable for any reason, including when it is used to:

-- obtain information or a confession from the tortured person or someone else or
-- punish the tortured person or someone else for an act that he or she has done or is suspected of having done or
-- frighten or coerce the tortured person or someone else or
-- discriminate against a race, religion, political belief
-- or any other reason

This definition does not include pain or suffering that is caused by legal prison conditions and sentences

Cruel, inhumane, or degrading treatment or punishment is any physical or mental abuse. Among other things, it includes depriving a prisoner of sight, hearing, and awareness of place or the passing of time.

Furthermore:

A physician [or any treating professional, such as a psychologist] should not:

-- assist with torture and cruel, inhuman, or degrading treatment or punishment
-- be present when a prisoner is subject to, or threatened with, torture and cruel, inhumane, or degrading treatment
-- provide or withhold clinical facilities, equipment, supplies, or knowledge to support torture and cruel, inhuman, or degrading treatment
-- assist procedures that aim to decrease a prisoner's ability to resist interrogation or punishment;
-- withhold, or threaten to withhold, medical assessment or treatment from a prisoner who is not cooperating with officials;
-- assist in certifying a prisoner's fitness for interrogation, treatment, or punishment that might harm that person's physical or mental health
-- assist in monitoring an interrogation, treatment, or punishment to advise officials to modify procedures that might harm a prisoner's physical or mental health.

Miles and Freedman note that there is a "pandemic of torture" going on in the world. The attempt to squeeze torture techniques into the U.S. Army Field Manual, and furthermore cover up the attempt, is only one aspect of this frightening spread of the torture cancer. Arm in arm with it, there is an attack on civil liberties in general, and a glorification of militarism and brutality in public life and political action. The invasion and attack on Gaza, the missile attacks by U.S. robot aircraft in Afghanistan and Pakistan, the massive death of civilians in Iraq, the Congo, Somalia, and elsewhere around the world are part and parcel of the torture ethic, which reduces human beings to mere things, despised objects, and victims of national greed and will.

American Psychological Association: An Object Lesson in Ethics Failure

Doctors and ethicists such as Steven Miles and Alfred Freedman, and their colleagues in human rights and medical organizations around the world are to be applauded for their attempts to turn back the tide of dehumanization and violence.

Compare this to the actions of the American Psychological Association, who, weeks now after the head judge at Guantanamo condemned the interrogation of Mohammad al-Qahtani as "torture", refuses to even utter a statement of condemnation or regret for the participation of one of its members, John Leso, in this abomination of an interrogation. Instead, they have dragged out an ethics investigation of this same individual for over a year. Meanwhile, the same institution is trying to pretend that it is suddenly interested in revamping an ethics clause (1.02) that allows its members to follow "authorities" who may command them to undertake actions that go against their ethics code.

If Stephen Behnke, the ethics director of APA, had any self-respect, or if the organization itself had any integrity, he would have resigned or been fired after the Crawford revelations on the al-Qahtani torture interrogation.

It certainly seems like the world is being swept by a pandemic of torture, war, and brutality. The primary sources of information for the populace do little to educate the public, or push fear and misinformation. These are terrible times, indeed. The new U.S. president proclaims this a time of progressive change and hope. But no president can undertake alone the massive social changes that are needed. That is up to each of us, and that is the message I believe Miles and Freedman are giving us. While international law and institutions press to change national deformations, each individual in each profession must take responsibility upon themselves to provide ethical leadership.

Confusion in the Press on Torture Plans

An Associated Press story by Lara Jakes and Pamela Hess, released last Friday, reports on President Obama's intention to limit the CIA to interrogation techniques listed in the Army Field Manual. The pending Executive Orders on interrogation would also end the practice of detention by the CIA in secret prisons.(Not pending anymore, see link.) But, in a potential sop to the Agency:

[Obama's] advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon...

Such a "loophole" would be included as a classified annex to the Army Field Manual, which the article assures us doesn't allow threats or coercion, while also banning physical abuse and outrageous torture techniques like waterboarding. The article does single out, without explanation, that there is a special AFM technique allowed "in some cases" -- isolation.

Without knowing it, and not knowing the history of the writing of the Army Field Manual, or possibly forgetting it, or maybe suppressing it, the AP reporters misrepresent that document. There already was a controversy over adding a classified annex to the AFM -- over three years ago. That controversy ended with the publication of disputed techniques of interrogation in an unclassified appendix to the Army Field Manual (Appendix M, "Separation"). That appendix includes descriptions of coercive psychological torture techniques, including isolation, sleep deprivation, sensory/perceptual deprivation, as well as others that are included in the manual proper (such as "Fear Up" and "Ego Down" [humiliation]). These techniques are most harmful when combined together, and are similar to those used by the Stalinist countries and the Nazis to break men down. They are also similar if not identical to the main techniques of coercive interrogation and torture advocated for use by the CIA in its KUBARK interrogation manual of the early 1960s. (See this link for fuller explanation.)

With all the double talk and off-again, on-again secrecy about interrogation techniques, one shouldn't blame the AP reporters for their confusion. But they owe it to their readers to get the story right. Here's one example of that confusion:

The military rejected adding a classified annex to the manual before it was published in 2006 because it believed having two sets of rules could confuse soldiers and reasoned that the classified techniques would quickly become known once those interrogated were released.

But, if they would have only read the current Army Field Manual, they would have seen that two sets of rules already apply, and that Appendix M techniques are only for use on "unlawful enemy combatants."

The threat once more to add a classified annex of more coercive techniques serves two purposes. One, it satisfies those CIA officers who want the freedom to improvise more coercive forms of torture in the field. It also gives interrogators leverage in promoting the most basic factor in breaking down prisoners, fear, as a detainee can feel unsure just what kind of torture will be thrown at him. Worry, anxiety and fear work harder on a person's mind and body than an actual physical punishment, as a person can learn to endure the latter, or come to feel the worst has been experienced. But then I don't have to tell everybody this; it's all there, discussed in length by the CIA in its KUBARK document.

Secondly, the threat to add more coercive techniques to the AFM works as a cover for the fact that there are already abusive procedures in that document that amount to psychological torture. bmaz at Emptywheel/Firedoglake makes the point regards the latter in a recent posting, noting that Judge Susan Crawford at Guantanamo very recently described the combination of "legal" procedures upon prisoner Mohammad al-Qahtani as "torture." I would question Judge Crawford's opinion that most of these techniques were legal, but they were certainly commonly used upon prisoners, and did amount to torture. Most of those techniques are allowed in the current AFM. Some of them are not, i.e., the use of working dogs or stress positions. But just because the latter are removed doesn't mean the core KUBARK program of isolation and sleep deprivation and fear/humiliation doesn't remain.

Therefore, should the trial balloon over a special "loophole," or "classified annex" for CIA interrogation techniques should fail to pass Congressional or public muster, there is always Appendix M to fall back on, ignored in all the hubbub over some new secret techniques. This is the art of using the "Overton window", which the former administration had practiced with great mastery. One would have hoped such forms of shaping public discourse would have been abandoned in this new administration of proclaimed transparency. But I guess when it comes to CIA and military interrogation something less than full openness is preferred.

Still, it's good to see that not everybody is buying the entire package, as proven by dday's comments on Appendix M at digby's blog, Hullabaloo, today.

In general, torture and interrogation are tough stuff to read about, and the natural inclination to look away works to keep the public in a state of ignorance, the better to be fooled. Reporters rely too much on government press releases and briefings, and translate government spin into received wisdom, which is then transferred to their readers, and so the parameters of public discourse become set. In this sense, Jakes and Hess are not singled out for particularly bad reporting, as they are typical of their peers in this sense, of accepting military or CIA explanations for how things are, and not digging deeper.

Obama is to be congratulated for wanting to close Guantanamo, hold the CIA to non-abusive forms of interrogation, and in general trying to return the world of interrogation and military detention to a semblance of obeisance to international lawful standards. But there are a lot of questions about Obama's policy still on the agenda, and a lot of pressure coming from what we might call "interested parties." What will Obama's position be on extraordinary rendition? What about the hundreds, if not thousands, of prisoners held in the U.S. "war on terror" in other U.S. prisons, such as Baghram?

The public must call for no special loophole for the CIA on the matter of interrogations. They must also call for the removal of Appendix M and abusive techniques like "Fear Up" before giving any pass to Obama's call for changes in interrogation. Otherwise, we will have done not much more than put lipstick on a pig. (Now where have I heard that one before?)

Update: The same threat to add coercive procedures to the otherwise supposedly sanitized AFM is repeated in today's AP story by Ben Feller, reporting on Obama's signing of executive orders that will lead to the eventual closing of Guantanamo, a shut-down of CIA prisons, an affirmation to the right of habeas corpus by detainees, and an end to the CIA's use of "enhanced interrogation techniques". From now on the CIA will have to rely on the Army Field Manual techniques. While this will aggravate the agents in the field, it will still leave much leeway for certain traditional CIA forms of interrogation, as described above.


Obama's changes are in general positive. But they do not go far enough, and the status of what exactly will be changed, as in the case of future adjudication of the Guantanamo prisoners, or how "terror suspects" will be handled in the months or years to come, await the conclusion of review task forces. The latter are headed by the main administration bureaucracy at State, Defense, and the intelligence agencies, and coordinated by the Attorney General. Their trustworthiness is yet to be determined, and in some cases these people are already known and not very untrustworthy, given their support of the Iraq War, or over-identification with intelligence and covert operations.

Isn't it funny that no one thinks that it would be a good idea to have some on the spot oversight by human rights groups? Obama has strengthened the Freedom of Information Act as a tool of non-governmental oversight. But why is there not input in these "task forces" by prominent human rights groups or individuals? What's even more remarkable is that no one even sees fit to ask.

Firedoglake Picks Up Army Field Manual Torture Story

Originally posted at Daily Kos

I was very grateful to see bmaz over at Firedoglake take up an issue I have been pushing very much at Daily Kos and elsewhere for the past few years. Really, my first big support on my opposition to using the Army Field Manual, as written, as a "single standard" for interrogations by the Pentagon and CIA, was by DKos front-pager Meteor Blades, picking up a story published by AlterNet, who also supported this story..

My objective in researching and reporting on the AFM issue was to change the public discourse about it, especially as Democrats had decided that the AFM was the perfect counterweight to the CIA's "enhanced interrogation methods." It was John McCain's idea to have the Pentagon and CIA hold to the AFM standards. But then Rumsfeld's office (or someone) ran an end run around him, rewrote the AFM, inserted techniques that amounted to psychological torture, and then battled with opponents over it for months, until finally the AFM was published the way Rumsfeld and his lieutenant, Stephen Cambone, wanted it.

Whatever the AFM was supposed to be, by September 2006 it wasn't that anymore, and not the press, or McCain, or even any bloggers were talking about it. Apparently there was an opposition from within the military, including military attorneys, and even some high officers, but they weren't going public with it, except to leak to the press. After September 2006, even those leaks stopped, possibly due to the political cave-in that was the passing of the Military Commissions Act.

There were two exceptions I was aware of, and one of them was myself. The other was Physicians for Human Rights, who opposed Appendix M from the beginning.

What is Appendix M? It is an addition to the Army Field Manual that allows for special interrogation techniques to be used against so-called "unlawful enemy combatants," such as the administration labeled the detainees at Guantanamo. In reality, the special techniques allow use of isolation/solitary confinement, sleep deprivation, sensory deprivation, and arguably, other procedures similar to Guantanamo's hated "frequent flyer" torture program. As a result of the inclusion of these abusive technqiues, and others, I and others have stated that the AFM fails to meet the requirements of the Geneva conventions, the UN Convention Against Torture, the War Crimes Act, and other laws and treaties.

The AFM, as rewritten, includes problematic procedures even outside of Appendix M, including a rewrite of its use of the dubious technique of "Fear Up." Whereas in the earlier version of the AFM "Fear Up" allowed exploitation of the fear a prisoner might feel upon incarceration, the new version, which is in the main section of the manual, not Appendix M, allowed for the creation of "new" fears. The change was included in a clause of only a few words. In many ways, the AFM inclusion of torture is a classic case of the devil being in the details, or in the fine print, in this case.

bmaz's article picks up where mine left off by tying the kind of treatment advocated by the AFM to the torture endured by Mohammad al-Qahtani, otherwise known as Prisoner 063, whose interrogation logs made a sensational splash when published by Time Magazine a few years ago. The military interrogation of al-Qahtani amounted to torture, Susan Crawford, the convening authority to the military commissions, admitted to Bob Woodward in a bombshell interview the other day in the Washington Post.

Noting how Crawford emphasized the combination of interrogation techniques, most of them similar to those laid out in the current AFM's Appendix M, bmaz noted:

Crawford has exposed to bright sunlight the lie that is Barack Obama's, and other politicians', simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions....

The Army Field Manual provisions, especially with those pesky footnotes like "Appendix M", leave a wide open path for torture. And this is exactly what Susan Crawford directly admitted to Bob Woodward. This is a significant problem, the very torture, and modalities thereof, that are so abhorrent are about to be ratified and enshrined into the ethos of the new Obama Administration. What is worse is that the media and the country as a whole are biting off on the proposition that the torture regime is being slain in the process, and that is simply not the case.

bmaz notes that better people are soon to inhabit some of the posts within the Defense Department and other governmental agencies, and that they want to help change the former illegal policies. But he notes that issues like the current Army Field Manual and its Appendix M stand in the way of making these changes, and calls, as I do, for its removal.

It is very difficult to affect public discourse when the bulk of the mainstream media, politicians, human rights agencies, and even big-time political bloggers keep silent. To be honest, it makes one doubt one's sanity at times. That's why I want to give a big thanks of appreciation to bmaz (and the FDL crew) and Meteor Blades, for helping to push this issue forward. There are others behind the scenes who I know have supported this, and have kept me going, and I am very grateful to them, as well.

The AFM is only one piece of the larger picture regarding the torture project undertaken by the Bush administration, and it may not even be the most important piece. But I think the background story behind it may lead us to some very interesting places. And then, for the sake of those detainees currently held by U.S. forces in Guantanamo, Baghram, and U.S. prisons in Iraq and Afghanistan, not to mention CIA "black site" prisons and prison ships, I could not stay silent when right in front of my eyes I saw the implementation of a torture program, albeit without some of the more unsavory and infamous techniques, like waterboarding and sexual humiliation. Probably, it was the elimination of these that kept many from seeing for a long time exactly what was actually wrong with the Army Field Manual.

I hope you are motivated to go read bmaz's excellent piece, and not because I am prominently mentioned in it. I think bmaz did an excellent job of drawing out the current significance of the issue and applying it to an important breaking story. That's what the truth does for you: it takes disparate pieces of information and throws a light upon it that draws out its true significance.

Onward and upward to prosecutions of those involved in the planning and implementation of torture by United States officials!