UN Review Cites Torture & "Ill Treatment" in U.S. Army Field Manual's Appendix M

The United Nations Committee Against Torture (UNCAT) has released their "Concluding observations on the third to fifth periodic reports of United States of America" in regards to US adherence to the prohibitions against torture and cruel, inhumane, and degrading forms of treatment of prisoners.

Within the context of the world of diplomacy, the UNCAT findings belie the US insistence that it abides by the Convention Against Torture treaty (CAT), or that it is an adequate model for humane treatment of prisoners.

In particular, the committee took aim at the presence of ill-treatment and torture within the Army Field Manual's Appendix M, which purports to describe a "restricted interrogation technique" called "Separation." In a victory for those who oppose government-sanctioned torture and abuse of prisoners, the UNCAT called for the US "to review Appendix M of the Army Field Manual (AFM) in light of its obligations under the Convention."

More specifically, UNCAT identified the "minimal" sleep regulations in the manual as actually a form of sleep deprivation -- "a form of ill-treatment" -- and called for adherence to humane norms. In addition, the committee called for the elimination of sensory deprivation in the "field expedient" section of Appendix M, as such sensory deprivation can "create a state of psychosis with the detainee."

The UNCAT findings should be a wake-up call to the US press, which has repeatedly reported as true the assertion by the Bush and Obama administrations that the AFM allowed only humane interrogations. (The findings also validate my years-long campaign against the use of torture and abuse in the AFM, which has also been the focus at times of most of the human rights and legal groups who have made torture an issue, and bloggers such as Marcy Wheeler.)

While I want to concentrate here on what UNCAT said about the Appendix M and the Army Field Manual, which President Obama by executive order made the primary interrogation tool for forces in "armed conflict," the committee's other findings also are worth noting. The relative effectiveness of the UNCAT review process, or lack of same, is something that deserves its own analysis, but for the purposes of this article we'll put that off for now.

UNCAT Findings

The UNCAT found fault with the US's federal definition of torture -- the way it implements its torture laws -- not to mention the very way the US interprets the CAT treaty. It called for the US to consider withdrawing its "interpretive understandings and reservations" with which it ratified the CAT treaty. The UNCAT did the same thing in its May 2000 review of US practices. (For more on this, see this ACLU report.) The US "reservations" to the CAT treaty in particular eviscerate the protections against torture by replacing adherence to international norms on cruel treatment to less stringent US judiciary interpretations.

UNCAT also called for the US to criminalize "the specific offense of torture" at the federal level, and to remove the caveat in other statutes that says psychological torture requires evidence of “prolonged mental harm”. The UN officials warn that the presence of "serious discrepancies between the Convention’s definitions and those incorporated into domestic law create actual or potential loopholes for impunity."

In other notable, though not exhaustive, findings in the US review, the UNCAT told the US it had "concern over the ongoing failure to fully investigate allegations of torture and ill-treatment of suspects held in U.S. custody abroad, evidenced by the limited number of criminal prosecutions and convictions." It called for "prompt, impartial and effective investigations," noting in addition that "alleged perpetrators and accomplices are duly prosecuted, including persons in positions of command and those who provided legal cover to torture..."

In particular, the UNCAT noted that the US had supplied "minimal statistics on the number of investigations, prosecutions, disciplinary proceedings and corresponding reparations" from the US military.

In regards to the military's regime at Guantanamo, the UNCAT forcefully pronounced that "force-feeding of prisoners on hunger strike constitutes ill-treatment in violation of the Convention." The committee called for the immediate release of all uncharged or cleared detainees, an end to force-feeding and indefinite detention, and investigation of all torture, abuse or ill-treatment charges, including prosecution of those responsible and redress to victims.

The UNCAT and Appendix M

The back and forth between US and UN officials over whether certain practices used in the Army Field Manual constitute torture or other forms of abuse sounded like a diplomatic version of "he said, she said." But readers may not be aware what all the shouting was about.

In 2006, the US rewrote the Army Field Manual (AFM) on interrogation (formally known as FM 2-22.3, "Human Intelligence Collector Operations"). In 2009, in Executive Order 13491, "Ensuring Lawful Interrogations," President Obama declared that US officials could not use "any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3."

The 2006 AFM banned certain practices associated with the CIA and/or DoD's harsh interrogation and torture programs implemented under the Bush Administration, including forced nakedness, hooding, use of military dogs to threaten, and "waterboarding." But at the same time, the AFM removed restrictions against "abnormal sleep deprivation," use of stress positions, and "chemically induced psychosis."

The question of what constitutes sleep deprivation arose in the argument back-and-forth between the US and UNCAT on Appendix M.

In 2006, Appendix M was one of the new portions of the rewritten Army Field Manual. It involved the use of certain techniques, collected under the amalgam "Separation," which were not allowed for use on prisoners protected under the Geneva Conventions rules for POWs. So-called "unprivileged combatants" (or "unprivileged belligerents," as the Obama administration likes to call them) were subject, after approval, to the use of isolation (solitary confinement), sleep deprivation, adjustments in environmental and dietary rules, and, in the case of a special "field expedient" application of "separation," subjected to use of blindfolds or goggles, and earmuffs to shutoff both vision and hearing.

The UNCAT was specific in pointing out that the field expedient form of "separation" was in fact sensory deprivation, and that "based on recent scientific findings with high probability will create a state of psychosis with the detainee (Daniel C., Lovatt A., Manson OJ. Psychotic-like experiences and their cognitive appraisal under short-term sensory deprivation. Frontiers in Psychiatry; Vol. 5, Art 106:1), raising concerns of torture and ill-treatment."

As the UNCAT and the press have pointed out, Appendix M's stated purpose is to prevent communication among detainees, the better to prevent learning "counter-resistence techniques". But it is also, as Appendix M states, about "decreasing the detainee's resistance to interrogation." Indeed, both physical and so-called field expedient forms of "separation," are specifically described in Appendix M as meant to "foster a feeling of futility."

"A feeling of hopelessness and helplessness"

Appendix M does not describe what is meant by "futility," but the term is defined elsewhere in the AFM. When describing a technique known as "Emotional-Futility," the DoD-authored manual notes that the purpose of "futility" is to convince "the source that resistance to questioning is futile. This engenders a feeling of hopelessness and helplessness on the part of the source."

The manual clearly states that the use of futility is not enough to assure a prisoner's cooperation. Hence it strongly recommends the combination of Appendix M "separation" (which, remember, includes both isolation, sleep deprivation, and at times application of psychotic-inducing sensory deprivation) with other AFM "approaches." Indeed, Appendix M itself suggests combining "separation" with the use of the "futility" technique (actually, a natural extension of the purpose of Appendix M), "incentive," and "fear up."

In other words, shorn of all the bureaucratic mumbo-jumbo, an Appendix M interrogation means keeping a detainee isolated for up to 30 days, or even months longer, exposed to noise (as long as it is not "excessive") or other environmental changes (again, so long as they are not "excessive"), and allowed no more than 4 hours sleep per day for weeks and perhaps months on end. The detainee is meant to feel both hopeless and helpless about their condition. Psychological and sociological weaknesses are exploited to increase the sense of despair. Incentives are offered to entice the prisoner to cooperate and end the solitary confinement and sleep deprivation or sensory deprivation. If the prisoner should still refuse to divulge information or otherwise cooperate (such as to turn informant), then the level of fear a prisoner feels is to be increased, playing off fears the prisoner may feel, including phobias.

While the US representatives responding to UNCAT's review -- and one of these was Tom Malinowski, who as a representative for Human Rights Watch back in 2006 applauded the then-new version of the Army Field Manual -- have offered only boiler-plate defenses to the depredations of Appendix M, the AFM itself calls for the presence of medical personnel, including, optionally, a "behavioral health consultant," whenever an Appendix M interrogation takes place. To my knowledge, the presence of medical personnel is not required for any other kind of interrogation in existence -- with the sole exception of the CIA's use of "enhanced interrogation" torture.

The use of certain "approaches" in the main body of the AFM, such as Fear Up, Ego-Down, and Futility, demonstrate that use of cruel treatment is not limited to Appendix M, but exists within the main body of the AFM itself. As an example of the kind of warnings such "approaches" generate, the instructions regarding Fear Up warn the interrogator not to induce so much fear the prisoner becomes unresponsive.

Drugs and the Army Field Manual

Another area of abuse that exists in the main body of the AMF concerns the use of drugs. A close examination of the current AFM with its predecessor shows that the wording regarding restriction of the use of drugs changed in 2006. As noted above, the prohibition against use of drugs that cause psychotic-like symptoms was removed from the current AFM. The prohibition now is only against drugs that cause "lasting or permanent mental alteration or damage," a significantly lowered bar for use of drugs in interrogations.

In September 2009, a Department of Defense Inspector General report concluded that drugs had not been used in DoD interrogations. Even so, the report did reveal that detainees who were drugged for ostensible non-interrogation reasons were interrogated while drugged. There was also at least one case -- that of Jose Padilla -- where DoD used deception to make a prisoner believe he had been give "truth serum."

Still the IG report was seriously flawed, particularly in that it did not interview any of the released detainees who had alleged use of drugs. One of who made such a charge was Murnat Kurnaz, who was in Geneva for the UNCAT review. Kurnat has charged that he was subjected to repeated beatings, had his head dunked in water, was given electric shock to his feed, suspended by his arms, humiliated, and placed in solitary confinement by US forces. He has also said in the past he was forcibly administered drugs. But when he gave a statement to the UNCAT, unfortunately it did not mention the forcible use of drugs.

When Kurnaz gave, with the parents of Michael Brown, a teleconference in Geneva on November 12, I asked him about his drugging charges. Kurnaz stated, "I was forced to take medication. I didn't know what it was. When I refused they came afterwards... five to ten people held me down and tie me and give as injection." Kurnaz also charged that he was forced to take an "antimalaria medication," while, as Kurnaz added, "the whole world knows in Guantanamo there is no malaria." He further charged the drug was given "for its side effects, which include hallucinations."

Last year, a report by the Institute on Medicine as a Profession and the Open Society Foundation called for an investigation into the use wide-spread use of the anti-malaria drug mefloquine (Lariam) at Guantanamo.

None of the press reported Kurnaz's charges in relation to drugs. UNCAT never referred to the issue of drugging at all (see even the full transcript of the UNCAT review). As an article in the Jurist noted, "legislation implementing the Convention Against Torture defines torture to include 'the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.' 18 U.S.C. 2340. (In fact, under federal law, committing such acts outside of the United States is a very serious crime punishable by up to 20 years in prison. 18 USC 2340A)."

The UNCAT is to be praised for bringing to the fore some of the worst aspects of the current use of torture and abuse by the US government, and in particular for calling out the endemic abuse in the practices of forced-feeding and Appendix M techniques in the Army Field Manual. But the full story is still not out there, and the investigations called for by UNCAT are not on anyone's agenda. (There is a supposed "independent review" concerning collaboration of leading figures of the American Psychological Association with the CIA's "enhanced interrogation program, but that will be the subject of a future article.)

In addition, the release of the Senate Select Committee on Intelligence report on the CIA torture program -- or at least it's Executive Summary -- keeps being delayed. The latest word is that it might be out by the end of the year, lost in the news wasteland that is the Christmas and New Years' holidays.

It's good to take some time to reflect upon the progress made in the fight against torture, but there's still a long, long way to go before such crimes are truly eliminated, and the perpetrators of such crimes prosecuted.

Cross-posted at The Dissenter/FDL

Survivors File UN Complaint Against Canada for Failing to Prosecute George W. Bush for Torture

The following was posted today at Center for Constitutional Rights, and reposted here for its inherent interest, and with gratitude to Center for Constitutional Rights and the Canadian Centre for International Justice, and the four men pursuing their complaint, for continuing to stand for justice and accountability for state crimes.

November 14, 2012, Vancouver and New York— Today, four torture survivors filed a complaint against Canada with the United Nations Committee against Torture for the country’s failure to investigate and prosecute former President George W. Bush during his visit to British Columbia last year. As a signatory to the Convention against Torture, Canada has an obligation to investigate and prosecute a torture suspect on its soil. This is the first time a complaint concerning torture allegations against a high-level U.S. official has been filed with the U.N. Committee. The Canadian Centre for International Justice (CCIJ) and the U.S.-based Center for Constitutional Rights (CCR) filed the complaint on the men’s behalf.

“Canada has the jurisdiction and the obligation to prosecute a torture suspect present in Canada, including a former head of state, and even one from a powerful country,” said Matt Eisenbrandt, CCIJ’s Legal Director. “Canada’s failure to conduct a criminal investigation and prosecution against Mr. Bush when there was overwhelming evidence against him constitutes a clear violation of its international obligations and its own policy not to be a safe haven for torturers.”

The four men – Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani and Murat Kurnaz – found their long quest for justice stymied in October 2011. Canada’s Attorney General refused to conduct a criminal investigation against Mr. Bush, and the Attorney General of British Columbia swiftly intervened to shut down a private criminal prosecution submitted to a provincial court in her jurisdiction during Mr. Bush’s visit. This occurred despite the groups’ submission of a 69-page draft indictment and approximately 4000 pages of evidence against Bush consisting of extensive reports and investigations conducted by multiple U.S. agencies and the United Nations.

The Committee against Torture can require Canada to explain the actions that led to the case being closed without any investigation and can then issue a decision on whether Canada has breached its obligations under the convention. If the committee finds Canada in violation, it can specify appropriate remedial measures.

“Through this process, the world can learn whether Canada’s actions were grounded in law or in politics. Canada’s refusal to investigate and prosecute George W. Bush marked a low-point in the ongoing struggle to end impunity for torturers and denied these men the opportunity to achieve some measure of justice,” said Katherine Gallagher, Senior Staff Attorney at CCR and legal representative for the men.“They now call upon the Committee to send a clear message that states must uphold their obligations under the Convention against Torture and cannot allow other factors – including political considerations – to interfere with the commitment to end impunity for torturers.”

Ratified by 153 countries around the world, the U.N. Convention Against Torture requires states to investigate alleged torturers present on their soil and submit them for prosecution—or extradite them to another country for prosecution. Canada implemented this provision of the Convention into its domestic criminal code and explicitly authorizes prosecution for torture occurring outside Canadian borders. Canada, along with 55 other countries, allows individuals to file petitions with the U.N. Committee for alleged breaches of the Convention; the United States has not signed on to this provision.

In both Afghanistan and Guantánamo, the four men who submitted the complaint survived inhumane treatment including beatings, being hung from walls or ceilings, sleep, food and water deprivation, and exposure to extreme temperatures. U.S. officials eventually released Kurnaz after five years, and both el-Hajj, a reporter with Al-Jazeera, and Khan Tumani, 17 at the time of his detention, after approximately seven years, without ever bringing charges against them. Bin Attash, only 16 when he was detained, remains at Guantánamo, though he has never been formally charged with any wrongdoing.

Earlier this year, CCIJ and CCR submitted a report about the Bush torture case to the Committee against Torture during an examination of Canada’s compliance with the Convention. The Committee, in its concluding observations, called on the Canadian government to “take all necessary measures with a view to ensuring the exercise of the universal jurisdiction over persons responsible for acts of torture, including foreign perpetrators who are temporarily present in Canada.”

In February 2011, the Center for Constitutional Rights, on behalf of two survivors and supported by CCIJ and other human rights organizations, attempted to initiate criminal proceedings against Bush ahead of a scheduled visit to Switzerland. Bush cancelled the trip after news of the prosecution, and the apparent unwillingness of Swiss authorities to stop it, became known.

Read the complaint at CCR’s case page.

DoD Used Water Torture, Hid Behind "Waterboarding" Definition

Originally posted at FDL/The Dissenter

A new examination of waterboarding and other "water treatment" torture practices by the Department of Defense, published today at Truthout, seriously calls into question the accepted narrative around waterboarding by the U.S. government, as when Donald Rumsfeld wrote, "To my knowledge, no US military personnel involved in interrogations waterboarded any detainees, not at Guantanamo Bay, or anywhere else in the world."

Up until now, it's been accepted that only the CIA waterboarded detainees at black sites in the "war on terror," and only three prisoners at that. But a new investigation of available materials from Congress, Inspector General reports, first-hand and second-hand accounts in the press, as well as other documentary evidence, shows that use of waterboarding-style torture was likely used widely by U.S. forces, from Afghanistan to Iraq to Guantanamo.

Is it not waterboarding just because you are forcefully held down and drowned, and not strapped to a board? From testimony from former Guantanamo detainee Omar Deghayes, via Jeremy Scahill in an article from 2009:

The ERF team came into the cell with a water hose under very high pressure. [Deghayes] was totally shackled and they would hold his head fixed still. They would force water up his nose until he was suffocating and would scream for them to stop. This was done with medical staff present and they would join in.

Or what about this, from a 2008 legal filing by Center for Constitutional Rights on behalf of former Guantanamo prisoner Djamel Ameziane?

In another violent incident, guards entered his cell and forced him to the floor, kneeing him in the back and ribs and slamming his head against the floor, turning it left and right. The bashing dislocated Mr. Ameziane's jaw, from which he still suffers. In the same episode, guards sprayed cayenne pepper all over his body and then hosed him down with water to accentuate the effect of the pepper spray and make his skin burn. They then held his head back and placed a water hose between his nose and mouth, running it for several minutes over his face and suffocating him, an operation they repeated several times. Mr. Ameziane writes, "I had the impression that my head was sinking in water. I still have psychological injuries, up to this day. Simply thinking of it gives me the chills."

The above quotes are only a few selections from the larger Truthout investigation, which lays out the entire story. For instance, another Guantanamo detainee, Mustafa Ait Idr, describes being suffocated via application of water in much the same manner as Ameziane. In particular, the Truthout story describes how water torture via dunking or immersion was contemplated or used as early as the torture of Mohammed Al Qahtani, and later at a Special Forces interrogation site in Iraq.

In sum, the use of water torture and waterboarding or quasi-waterboarding can only represent a pattern of such kinds of torture, which has been kept out of the public eye through a combination of secrecy, and artfully framing the issue around a definition of waterboarding that is meant to exclude examination of the full use of such water-drowning torture.

What this investigation into the different instances of water torture by DoD proves is that the public discussion of waterboarding has been consciously limited by the government, which has hidden behind a definition of waterboarding that excludes the other, closely-related forms of torture it used.

Indeed, in the Army Field Manual on interrogations, which supposedly forbids torture (its Appendix M does allow for use of isolation, sleep deprivation and forms of sensory deprivation), exclusion of "prohibited actions" or techniques of torture include "waterboarding." But interestingly -- and in a telling unconscious admission that the prohibition only pertains to a very particular form of the technique -- it is the only prohibited action that is addressed in quotation marks in the manual. That tells me that DoD was hiding behind a legalistic feint, and the evidence this is so is what I address in my Truthout article.

I'm going to end this post with a selection from the Congressional testimony of another DoD detainee, Murat Kurnaz, who told a Congressional committee about his experience with the "water treatment."



Democratic Congresswoman Sheila Jackson-Lee commented on Kurnaz's testimony, "It seems that we have a new definition ... If you were wedded to the language of waterboarding, now we have new language called 'water treatment,' which may bear on being torture as well."

Interview with Former Guantanamo Detainee Murat Kurnaz

Former detainee Murat Kurnaz is interviewed by Russia Today about his experiences at Guantanamo Bay. A must see!

Radack on OIG/FBI Whitewash; Kurnaz on Life Inside Gitmo

Former Justice Department ethics advisor, Jesselyn Radack, who blew the whistle on illegal abuse in the case of John Walker Lindh back in the early days of the U.S. war in Afghanistan, has a blistering article up at Daily Kos, castigating the Office of the Inspector General for its "demi-candor" whitewash on the FBI role in "war on terror" interrogations. U.S. citizen Lindh was beaten seriously, "duct-taped naked to a board, and had government officials posing with him for pictures." Radack explains:

In 2001, I told the Criminal Division, which was advising the FBI in Afghanistan, that Lindh could not be interrogated without his counsel. That was on a Friday. The Criminal Division called back on Monday and said that the FBI had interrogated him anyway. They wanted to know what to do. I advised that the interview would have to be sealed and used only for national security purposes or intelligence-gathering, not criminal prosecution. Again, my advice was ignored.

Three months later, I inadvertently learned of a discovery order, which had been deliberately concealed from me, for all Justice Department correspondence related to Lindh's interrogation. When I went to comply, my e-mails had been purged from the file. With the help of technical support, I recovered them from my computer, turned them over to my boss, took home a copy in case they "disappeared" again, and resigned.

As the criminal case barreled toward trial, the Justice Department continued to assert that Lindh was never represented by counsel and that his rights had been "carefully, scrupulously guarded." I did not believe the Justice Department would have the temerity to make public statements contradicted by its own court filings if my e-mails had indeed reached the court. So I blew the whistle, which unleashed a torrent of retaliation....

In 2002, my lawyer made it abundantly clear to the OIG that I took several steps to thwart efforts to conceal material regarding Lindh's interrogation from the court. In January 2003, Inspector General Glenn Fine, who issued the recent FBI report, told my attorney that the OIG had looked into my whistleblower allegations and was not going to pursue them. (OIG did not look too searchingly because it did not even bother to interview me, the complainant.) To add insult to injury, OIG turned my case over for criminal prosecution, which eventually closed with no charges ever being brought. But the Justice Department was not through with me yet. It put me on the "No-Fly List" and referred me to the state bars in which I'm licensed as an attorney, based on a secret report - by the OIG - to which I did not have access. [emphasis in original]

The Justice Department OIG is a limited hangout, i.e., an admission of some crimes, but a cover-up of the total barbaric scenario unfolding in Bush's torture prisons. For a heart-rending but comprehensive look at what these detainees have endured, I strongly recommend Murnat Kurnaz's memoir, Five Years of My Life: An Innocent Man in Guantanamo.

A few excerpts from Kurnaz's book:

I looked around. This was truly nothing more than a ship's container with a door. The walls were reinforced by corrugated metal sheeting like the one in fairground stalls. Every surface -- the walls, the floor, the ceiling -- was covered with it. There was no mattress or wool blanket. A toilet and a sink were sunk into the floor. If I stared for too long at any one point of the metal sheeting I got dizzy....

The light went off. It was cold. The metal on the floor felt like ice.... I heard a rumbling. It was an air-conditioning unit mounted above the door. Icy air streamed in.... They've put me in a giant refrigerator.

After a while, I couldn't feel my hands or legs....

Sometimes I had to move to stop the cold, but I tried not to. I needed to save my energy since all I was given to eat was a piece of toast and a bit of apple, three times a day. but I had to move around sometimes, when it got colder.....

In late 2002, General Geoffrey Miller took over command of Guantanamo, and our situation dramatically worsened. The interrogations got more brutal, more frequent, and longer....

I was moved from one block to the next. The escort team would storm in, put me in chains, run with me through the corridors, push me to my knees, and leave me there. The whole procedure would be repeated an hour later.... I had to stand and kneel -- twenty-four hours a day....

In between transfers, I was interrogated... I estimated the sessions lasted up to fifteen hours.... I sat chained to my chair, or kneeling on the floor, and as soon as my eyelids drooped, soldiers would wake me with a couple of blows. (pp. 161-177)