According to the leaked draft version of President Trump's Executive Order, "Detention and Interrogation of Enemy Combatants," Trump's interrogation policy will resurrect a version of the CIA's torture program, such as it existed in July 2007. [See Update at end of posting.] That was when Steven Bradbury wrote an Office of Legal Counsel [OLC] memo to John Rizzo, who was then Acting General Counsel at the CIA.
Trump's draft order rescinds two Executive Orders former President Obama issued in the first weeks of his first term. Section 1 of Trump's order reads:
Revocation of Executive Orders. Executive Orders 13491 and 13492 of January 22, 2009, are revoked, and Executive Order 13440 is reinstated to the extent permitted by law.
Besides formally shutting down the CIA's torture and detention program, and (supposedly) close Guantanamo, Obama's action also withdrew all the OLC memos on interrogation/torture drawn up during the Bush administration.
Bush's Executive Order 13440, "Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency," was issued the same day as a new OLC memo that clarified the legalities as the Bush Administration wanted them to be to prosecute the CIA's interrogation and detention program, which had been under attack from various quarters at that time. EO 13440, where Bush signed off on the supposed compliance of the CIA's program with Common Article 3 protections in the Geneva Conventions, was meant to go with Bradbury's memo. It was a two-fer.
Trump's order would withdraw Obama's own rescissions of the Bush-era CIA torture memos and replace them with Bradley's July 2007 memo. But none of the press accounts have explained what that means concretely. That's a shame, because the 2007 version of the CIA's torture program is very likely what we are going to see under a Trump-era CIA and national security interrogations in general.
The 2007 Bradbury memo gives approval to six "techniques" for the CIA to use in its interrogation of "enemy combatants" who have been denied protections as "prisoners of war" under the Geneva Conventions.
Similarly, even today, prisoners interrogated under the current Army Field Manual, approved by Obama and the US Congress, must adhere to Prisoner of War protections except those the administration deems unprotected or unprivileged. Those detainees are subject to further measures under the Field Manual's Appendix M.
The Appendix M techniques rely on sleep deprivation and solitary confinement or isolation, among other techniques, including the use sensory deprivation by means of goggles that obscure vision. As we shall see, these techniques are drawn from the more intense versions in the 2007 memo.
"Conditions of Confinement"
Both Trump's resurrection of the old OLC-CIA memo and today's Appendix M depend upon the use of isolation and sleep deprivation. For Bradbury, isolation and solitary confinement were relegated to "conditions of confinement." These conditions were promulgated in the CIA's black site prisons, under the advice and consult of the US Bureau of Prisons, and -- incredibly -- with the knowledge of Congressional leadership, at least that of the Senate Intelligence committee.
The other CIA "conditions of confinement" included blocking the vision of prisoners with some type of opaque material; forced shaving; the use of constant white noise and constant day-night illumination, as well as the practice of leg shackling in the cell.
Given these cruel and inhuman, if not tortuous conditions in and of themselves, the 2007 memo approved six special "techniques," among them slow starvation and "extended sleep deprivation," which amounted to keeping prisoners awake in forced standing positions for up to 4 days straight.
Slow Starvation and Extended Sleep Deprivation
The six "techniques" were as follows: 1) "Dietary manipulation," which means limiting caloric intake to "at least" 1000 calories per day, an amount that would result in slow starvation and malnutrition; and 2) "Extended sleep deprivation," which means up to 96 hours of enforced sleep deprivation, with up to 180 hours of sleep deprivation per month (maybe more if the CIA Director were to ask), and effected via use of shackles, extended standing (despite risk of dangerous edema), and the wearing of "under-garments" (really diapers), to shame the prisoner who cannot hold in urine or feces for up to four days straight.
The other four "techniques" were drawn from the military's torture survival course (known as SERE), and included 3) "Facial hold"; 4) "Attention grasp"; 5) "Abdominal slap"; and 6) "Insult or Facial slap." All of these SERE techniques are meant to demonstrate power over the person interrogated, and to enhance the humiliation and terror of the prisoner.
Taken together, there's no question that this 2007 version of the "enhanced interrogation" program, even though lacking use of the waterboard and confinement boxes, amounts to cruel, inhuman and degrading treatment at the least, and more likely torture as a normative description.
The use of "dietary manipulation" deserves some further consideration. "Semi-starvation" was listed as a variable of "induced debilitation" in Albert Biderman's "chart of coercion", also known as "Biderman's Principles", which was taught to interrogators at Guantanamo by instructors from the Navy SERE program Dec. 2002, according to the Senate Armed Services Committee 2008 report on Detainee Abuse (p. 22 - link is a large PDF).
"Semi-starvation" is a form of inducing debility in a prisoner. According to Dr. Josef Brozek, of "the famous Minnesota Starvation Study," who gave a talk on the subject to CIA-linked scientists back in a 1950s symposium, explained:
"A situation in which food would be offered on certain occasions and would be withdrawn on other occasions would constitute a more intensive psychological stress than food restriction alone. It would result in severe frustration, and would more readily break a man's moral fiber. By combining such a treatment with other forms of deprivation and insult, one could expect eventually to induce a "breakdown" in the majority of human beings."
I have campaigned long and hard against the use of Appendix M and other techniques within the Army Field Manual's main section, especially the techniques "Fear Up," "Futility," "Ego Down," and "Mutt and Jeff." But the proposed Trump interrogation program -- incorporating a more intense and inhumane form of sleep deprivation, forms of sensory deprivation, physical abuse inherent in the "slaps," and the use of shackling and starvation -- is a giant step in the wrong direction.
Nothing describes the reactionary nature of a society more than its use of torture. The US has not rid itself of this evil, and even worse, it has collaborated with allies around the world to perpetuate it, even while formally, it has signed treaties that eschew the crime.
According to news accounts, the Trump administration claims current members of the White House staff did not produce the new draft Executive Order, nor has Trump signed it... yet. Given the strident right-wing course of this administration, I don't think this draft EO is a trial balloon.
The 2007 Bradbury memo derived its authorities, as it explained, from President Bush's September 17, 2001 Memorandum of Notification (MON), which gave the CIA authorization to run a detention program. That 2001 MON has never been rescinded, and no doubt Trump's attorneys will lean on it, and any new OLC memos considered necessary to firm up the implementation of the new torture program.
I believe the 2007 version of the CIA's "enhanced interrogation" program will be what the new Trump torture program will look like. What is described above is a first peek. I'm sure we'll hear and know more as time goes on.
Update: Wait! Trump pulls back
A February 4 New York Times article by Charlie Savage reports that the Trump Administration has pulled back on portions of the draft interrogation memo discussed above. In particular, Trump appears to have pulled back on the full revocation of the Bush-era OLC memos, has dismissed a study of reopening the CIA black sites, and withdrawn any reliance on the 2007 Bradbury memo, which would allow for the "extensive sleep deprivation," solitary confinement, and other forms of abuse detailed above. Even so, the revised draft is supposed to contain language that would keep Guantanamo open.
The revised draft itself has not been released, so we'll have to wait to see what Trump actually intends. At the least, it sounds like he wishes to keep Guantanamo open, and accelerate interrogations, which would of course include Appendix M interrogations.
The Savage article says nothing about a provision to review the Army Field Manual. I wouldn't be surprised if an earlier suggestion from the Bush years -- to add a secret portion to the manual -- is recycled.
But even as is, as the UN committee that monitors the international treaty on torture made clear, the US interrogation program under the Army Field Manual provisions still contains cruel, inhumane, and degrading techniques, some of which rise to the level of torture (the UN singled out sensory deprivation actions that can cause psychosis). This remains true even if the press and the "liberal" bloggers don't care to report or comment on it!
The following is taken from a PDF (h/t emptywheel) of a letter from the attorneys of Abu Zubaydah to the top military legal figure for the Military Commissions. The surprising substance of the letter, i.e., that Abu Zubaydah is requesting he be charged with crimes "at the earliest possible date," makes sense when you realize he has been held in U.S. custody for over ten years now.
In a pro forma May 17 reply (PDF) to Zubaydah's attorneys from Bruce MacDonald, the Military Commissions Convening Authority said that the decision to prosecute would first be made by the Office of the Chief Prosecutor, and that if charges were ever referred, "I will separately make my own, independent decision on whether to refer any sworn charges to trial by a military commission."
MacDonald also indicated that he knew that Zubaydah's attorneys were also pursuing a habeas case for their client in the U.S. District Court for the District of Columbia. For MacDonald, this "means a process, guaranteed by the United States Constitution to challenge the legality" of their client's incarceration. According to the Military Commissions official, Zubaydah is held "pursuant to the Authorization for the Use of Military Force... as informed by the principles of the law of war."
MacDonald, of course, never alludes to the fact that the habeas process in the D.C. District Court has become basically a joke, a hollow shell of form with no substance, as this May 1, 2012 study by the Seton Hall University Law School's Center for Policy and Reseach makes clear:
It is an open secret that Boumediene v. Bush’s promise of robust review of the legality of the Guantanamo detainees’ detention has been effectively negated by decisions of the United States Court of Appeals for the District of Columbia Circuit, beginning with Al-Adahi v. Obama....
After Al-Adahi, the practice of careful judicial fact-finding was replaced by judicial deference to the government's allegations. Now the government wins every petition.
Given the fact-intensive nature of district court fact-finding, the shifting pattern of lower court decisions could only be due to an appellate court’s radical revision of the legal standards thought to govern habeas petitions, raising questions about whether the D.C. Circuit has in fact correctly applied [the Supreme Court decision in] Boumediene.
Since his capture, Abu Zubaydah has spent years in secret CIA prisons, and even more years in solitary confinement at Guantanamo Bay. Moreover, Abu Zubaydah has been subjected to repeated torture, and his conditions of confinement currently amount at least to cruel, inhumane and degrading treatment of a prisoner.
The Zubaydah case is important for another reason, as he was the linchpin in a series of circumstances that engaged the CIA torture program in early 2002, and resulted in a series of infamous legal memos by the Bush Administration's Office of Legal Council, written by John Yoo, Jay Bybee, Stephen Bradbury and others. And yet, the actual facts behind the Zubaydah case remain enshrouded in mystery. Even the account of what happened to his missing eye remains classified... unknown.
Jason Leopold revealed in a March 2010 article that the U.S. government, in an unheralded court filing, "quietly recanted nearly every major claim the Bush administration made about Abu Zubaydah."
I've written some on the Zubaydah case, highlighting how "Abu Zubaydah was a primary subject of JPRA/SERE’s reverse-engineering of torture techniques, using the paradigm of psychologist and former American Psychological Association president Martin Seligman’s theory of 'learned helplessness.'"
In September 2009, I examined the so-called psychological profile of Abu Zubaydah, which was presumably used to sell in summer 2002 a certain image of Zubaydah to the OLC, who was then writing the first torture memos. Zubaydah's attorneys in the memorandum below also reference the picture of Zubaydah painted by the OLC, what I called in my article, the portrait of "a superman-terrorist."
Of course, Zubaydah was nothing like that. And above all, he is a man, a human being, held in indefinite detention by the U.S. state. I'm reprinting the full attorney document here for use by the public. Only the footnotes have been left out, and they can be referenced in the original document at this link.
For more on the Zubaydah case, see Andy Worthington's recent article, "Why No Trials for Abu Zubaydah and Seven Other “High-Value Detainees” in Guantánamo?"
10 May 2012
MEMORANDUM FOR The Convening Authority, Military Commissions
Subj: REQUEST FOR IMMEDIATE COMMENCEMENT OF ABU ZUBAYDAH’S MILITARY COMMISSION PROCEEDINGS
1. This letter requests that the Convening Authority immediately commence proceedings against our client, Zayn al-Abidin Muhammad Husayn (abu Zubaydah), ISN # 10016. Failure to act would raise serious questions about the integrity and legitimacy of the Convening Authority and, indeed, of the whole process established to try or release Guantanamo detainees.
2. Abu Zubaydah has been detained without a hearing for ten years. Since his capture on 28 March 2002 until the present day, there have yet to be any charges brought against him. There has been no court finding that he needs to be imprisoned, or that he was associated with al Qaeda, or that he committed any act of terrorism as the U.S. government has alleged in the past. To date, his repeated requests for legitimate evaluation of his case have been met with nothing but deafening silence. He now formally requests that the Convening Authority commence prosecution of him before a military commission at the earliest possible date.
3. The failure to convene abu Zubaydah’s military commission proceeding jeopardizes the legitimacy of the entire military commission structure. In September 2006, President Bush told a nationally televised audience that abu Zubaydah had been transferred from CIA to DoD custody so that he could be prosecuted in a military commission proceeding. Now, five and half years later, he has yet to be charged. No system that detains prisoners for years without charge can be legitimate. No system that only allows hearings in cases where the government can first secure a guilty plea, or guarantee a conviction, can be legitimate. No system that refuses to give a hearing because the truth will reveal enormous governmental over-reaching, illegal conduct, and false claims by our highest ranking officials can be legitimate. For the reasons discussed below, abu Zubaydah is entitled to the immediate commencement of his military commission proceedings.
4. This request for prosecution does not rely upon classified information. If the classified evidence corroborates the statements about abu Zubaydah made by some government officers, then a trial would provide the government with an easy victory. But if the classified evidence does not support their reckless hyperbole, this fact would explain why his long-sought hearing has been continually avoided. He simply requests the opportunity to test the government’s evidence and demonstrate in a legitimate setting why his detention and treatment during detention have been unwarranted, and that he is innocent of any crimes.
Why Has Abu Zubaydah Yet to Be Prosecuted Despite President Bush’s Statements?
5. Nearly six years ago, President Bush announced that abu Zubaydah and thirteen other socalled high-value detainees were to be tried by a military commission:
So I’m announcing today that Khalid Sheikh Mohammed, abu Zubaydah, Ramzi bin al-Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantanamo Bay. They are being held in the custody of the Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice. (Cheers, applause)....
With these prosecutions, we will send a clear message to those who kill Americans: No matter how long it takes, we will find you and we will bring you to justice. (Emphasis added).1
6. Despite the President’s promise to the nation, the Office of Military Commissions has taken no steps to prosecute him.
7. A decision to prosecute abu Zubaydah seems commonsensical if what the government has stated publicly about him is true. Officials at the highest levels of government have repeatedly claimed that he was not only associated with al Qaeda but that he committed numerous specified acts of terrorism against the United States. These officials include the President of the United States, the Vice President, the Secretary of Defense, the Director of the CIA, high-level officials in the State Department, and high-level officials in the Department of Justice.
8. For example, in that same September 2006 speech urging the creation of military commissions, President Bush spoke from the East Room about the existence of secret CIA prisons:
Within months of September the 11th, 2001, we captured a man known as abu Zubaydah. We believe that Zubaydah was a senior terrorist leader and a trusted associate of Osama bin Laden. Our intelligence community believes he had run a terrorist camp in Afghanistan where some of the 9/11 hijackers trained, and that he helped smuggle al Qaeda leaders out of Afghanistan after coalition forces arrived to liberate that country.... (Emphasis added [sic]).
9. The President also claimed that abu Zubaydah provided:
information that helped stop a terrorist attack being planned for inside the United States -— an attack about which we had no previous information [and] provided physical descriptions of the operatives and information on their general location. Based on the information he provided, the operatives were detained -— one while traveling to the United States.
10. Were even a fraction of such repeated assertions supported by credible evidence, the most straightforward course for the government would be to convene a military commission, produce the appropriate evidence under the relaxed commission standards, obtain what the government seems to think is a foregone conviction, and administer the resulting punishment. And yet this logical course of action has yet to be taken.
11. Abu Zubaydah has not been tried, has not been charged, and has not even had military commission counsel assigned to him. He has requested the appointment of military commission counsel repeatedly but has received no response. This overt failure to prosecute a supposed terrorist leader causes the world to wonder why. One possibility is that the claims, despite their number and decibel level, are simply untrue, so that the government cannot prove all (or any) of them. A second possibility is that the prosecution would be successful but only at the unacceptable cost of exposing the government to worldwide censure for the manner in which Zubaydah was treated and the evidence against him was obtained. The third possibility, worst of all, is both that the claims are not true and that his treatment is too shameful to be revealed to the world.
12. The factual premises for these scenarios, if untrue, could be put to rest by beginning the prosecution. Failure to do so can only further erode the legitimacy of the military commission process. The ultimate test of the legitimacy of any judicial system is the willingness to hold hearings even when the truths that the hearings may reveal could be embarrassing or politically damaging to high-level officials. Abu Zubaydah formally requests that he receive his military commission hearing immediately. Without such a hearing he may be detained forever as an uncharged prisoner—not necessarily for anything that he has done but because so many people have made so many false allegations to justify government policies that are themselves indefensible that no possibility of disclosure or, far worse, exoneration can be borne.
13. The public record already reveals that the government has long had reason to doubt the accuracy of its accusations. At the very time that President Bush was making the above statements, he was aware of serious reservations about their truth. According to Pulitzer Prize winning journalist Ron Suskind, even as Bush was publicly proclaiming abu Zubaydah’s malevolence, he was privately being briefed about misgivings within the intelligence community regarding his significance—and mental stability. President Bush was concerned about the consequences for his own reputation. Suskind quotes the following exchange between Bush and then-CIA Director George Tenet:
I said [abu Zubaydah] was important,” Bush said to Tenet at one of their daily meetings. “You’re not going to let me lose face on this, are you?” (emphasis added). Director Tenet then assured him he would not
The government’s failure to prosecute him continues the protection that Tenet promised.
14. Endless delays of a proceeding promised long ago by the President reflect the government’s implicit recognition that the “abu Zubaydah” who was held out to the American public to justify our nation’s torture, rendition, and detention policies was merely a manufactured distortion of the real person. His false portrayal, once known, will discredit many of the government’s most horrific policies. It was largely by virtue of unwarranted and inaccurate characterizations of abu Zubaydah that the government was able to adopt its torture policies, defend its dark sites and rendition policies, and continue on its course of detaining hundreds of individuals around the world without any process.
Role of the Discredited “Torture Memos” in Abu Zubaydah’s Military Commission
15. If abu Zubaydah’s case might inflict the very public embarrassment that President Bush feared so much, as revealed in his exchange with the then-CIA Director, the “torture memos” provide another source of shame for the government. The already notorious memos would be even more universally condemned were it known that their supposed efficacy in revealing the truth about our enemies was based -- in significant part, at least -- on lies about abu Zubaydah.
16. On August 1, 2002, attorneys with the Office of Legal Counsel completed a memorandum regarding the “Interrogation of al Qaeda Operative” that described the factual basis upon which that torture memo rested. The authors of this memo explained that “[a]s we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization.” The Office of Legal Counsel’s advice was “based upon the following facts, which you have provided to us....”
Zubaydah is currently being held by the United States. The interrogation team is certain he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas....
...Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden’s senior lieutenant. In that capacity, he has managed a network of training camps. He has been instrumental in the training of operatives for al Qaeda, the Egyptian Islamic Jihad, and other terrorist elements inside Pakistan and Afghanistan. He acted as the Deputy Camp Commander for al Qaeda training camp (sic) in Afghanistan, personally approving entry and graduation of all trainees during 1999-2000. From 1996 until 1999, he approved all individuals going in and out of Afghanistan to the training camps. Further, no one went in and out of Peshawar, Pakistan without his knowledge and approval. He also acted as al Qaeda’s coordinator of external contacts and foreign communications. Additionally, he has acted as al Qaeda’s counter-intelligence officer and has been trusted to find spies within the organization.
Zubaydah has been involved in every major terrorist operation carried out by al Qaeda. He was a planner of the Millennium plot to attack U.S. and Israeli targets during the Millennium celebrations in Jordan. Two of the central figures in this plot who were arrested have identified Zubaydah as the supporter of their cell and the plot. He also served as a planner for the Paris Embassy plot in 2001. Moreover, he was one of the planners of the September 11 attacks. Prior to his capture, he was engaged in planning future terrorist attacks against U.S. interests.
17. What an incredible political embarrassment it would be for the world to discover that the torture and mistreatment of abu Zubaydah were pointless exercises in cruelty. Vice President Cheney, CIA Director Michael Hayden, and many others all have claimed that the torture and mistreatment of abu Zubaydah led to the discovery of useful information. Vice President Cheney stated that:
[t]he techniques worked…. Abu Zubaydah gave up information about Ramzi bin al-Shibh who had assisted the 9/11 hijackers, and on the one-year anniversary of the 9/11 attacks was captured after a shoot-out in Pakistan. At he time of his apprehension he was plotting to use commercial airliners in suicide attacks on Heathrow Airport and other structures in London.
18. Director Hayden also stated that abu Zubaydah’s interrogation “led to reliable information,” that he was a “prolific producer” of information, and that roughly 25 percent of the information on al Qaeda that came from human sources that originated from him. Imagine the political and policy implications that would follow the revelation that no such information was obtained from visiting these abuses on him.
Role of Rendition and Indefinite Detention in Abu Zubaydah’s Military Commission Proceedings
19. The torture policies are not the only programs that would be exposed during the military commission hearing. The U.S. government’s justification of its policies of extraordinary rendition, maintaining secret CIA black sites, and indefinite detention would also be shown to have rested on false and exaggerated claims. Obviously, statements about abu Zubaydah were not the only basis for the creation of the Global War on Terror apparatus. There were many other claims. However, he was the symbol constantly deployed to justify the creation of that apparatus. The numerous fabricated statements made about him constituted a key part of the foundation of that structure. For instance, abu Zubaydah’s supposed misdeeds were used to justify the CIA’s use of black sites and extraordinary rendition as critical elements in the War on Terror.
20. John Kiriakou, the highest ranking CIA officer on the ground in Pakistan involved in abu Zubaydah’s capture, reported as follows:
He was one of the financiers of the September 11th attacks. He was a logistics chief of al Qaeda. We knew that he was close to bin Laden, although not co-located obviously.... [W]e knew at the time that he had a line to bin Laden.
[We knew] that he knew everybody who was worth knowing in al Qaeda. He knew cell leaders. He knew logistics people. He knew finance people. We knew that he was really one of the intellectual leaders of the group.
21. John Rizzo was the CIA’s acting general counsel during the Enhanced Interrogation Techniques (EIT) program. He was interviewed on September 13, 2011, about abu Zubaydah:
He wasn’t necessarily a shooter or a guy who would climb into an airplane, fly into a building. But he basically was moralistically chief operating officer, made sure and facilitated the plan, the travel of various al Qaeda officials. So there was a lot of information derived from him on that score that I recall.... And it’s not just me saying it. Subsequent investigations by the CIA inspector general and other independent bodies confirmed that there was valuable, actionable intelligence derived first from Abu Zubaydah and later (from) other high-value detainees that were subject to the enhanced techniques....
22. Abu Zubaydah has also been frequently used to justify the continued operation of Guantanamo. For example, consider the statement of the State Department’s John Bellinger:
I will just say up front that the issue of Guantanamo...is a source of great frustration for this administration. On the one hand, it serves a very important purpose, to hold and detain individuals who are extremely dangerous, people like Khalid Sheikh Mohammed, Abu Zubaydah, people who have been planners of 9/11, others who were captured on the battlefield in Afghanistan and who personally killed U.S. soldiers.
Conclusion
23. The government fears that a military commission hearing for abu Zubaydah will reveal that the facts upon which the American torture policy substantially rests were false and known to be false at the time. The military commission hearing will also reveal that many statements made by the highest officials about him were false and known to be false when made. The government has attempted to conceal the fabrication of the factual basis for his torture, the same basis detailed in the “torture memo” that focused exclusively on him.
24. The government has also gone to great lengths to destroy all evidence that one of its most trusted attorneys had written a dissenting memo arguing that the treatment approved by the “torture memos” was torture that should have been known to be torture. The legal memo revealing the robust dissent to the very practices inflicted upon abu Zubaydah was not only concealed but extraordinary efforts were made to destroy all copies of the memo. Although use of the word “concealment” may seem harsh, this characterization is, if anything, an understatement. The more accurate description of this conduct would be spoliation of evidence revealing the false factual and legal basis upon which abu Zubaydah was tortured. The spoliation efforts were revealed by Phillip Zelikow, a high ranking State Department lawyer and confidant of Secretary Condoleeza Rice, in an appearance before the Senate Judiciary Committee in 2009. His memo titled “The McCain Amendment and U.S. Obligations under Article 16 of the Convention Against Torture,” dated February 15, 2006, concluded that several of the enhanced interrogation techniques, “singly or in combination, should be considered ‘cruel, inhuman or degrading treatment or punishment’ within” the meaning of the Convention Against Torture. Zelikow explained that the memo caused senior figures in the Bush White House to become enraged, and that they actually sought to collect and destroy all the copies.
25. The government that has engaged in the spoliation of evidence, including authoritative legal dissent about abu Zubaydah’s treatment, is the same government that holds him in indefinite pretrial detention, too afraid to prosecute him—because such a hearing would reveal even more disturbing truths.
26. The refusal to bring charges and seek judicial review of abu Zubaydah’s case, to provide a forum that will reveal the truth about him and the demonstrably false factual basis for the torture memos and his torture is but another way to conceal the truth. That a government concealed and destroyed documents evidencing dissent to its justification for torture speaks volumes about why that government would refuse to provide abu Zubaydah judicial process that would disclose an even more damning truth: that the factual basis for his torture was false and known to be false at the time.
27. The failure of the Office of Military Commissions to charge and try abu Zubaydah inevitably will be viewed as part of the lamentable pattern of conduct that began with the assertion of false facts to justify his torture in 2002, and produced distorted, inaccurate and incomplete legal opinions as the government labored in vain to contrive the legality of his torture. And that perception undermines the legitimacy of the entire military commission program.
28. Abu Zubaydah asks only for what he was promised by the president of this nation: a military commission hearing. The reformed military commissions have been trumpeted as wholly consistent with basic American precepts of justice. So we say: charge abu Zubaydah and let the chips fall where they may.
29. If the military commissions are to be viewed as legitimate, they should not appear to be complicit in disguising the truth. Instead, military commissions should serve as a vehicle that reveals the truth. The failure to prosecute abu Zubaydah discredits not only American political practices but also the military commissions themselves. Abu Zubaydah asks simply that he be allowed to have a legitimate hearing at which he may challenge the allegations and evidence leveled against him. But as time lingers on, what legitimacy will be found in a system that continues to delay the trial of a man the government once described as a high-ranking al Qaeda operative? Abu Zubaydah is ready for the process to begin, and after ten years of detention and evidence gathering, the government ought to be too.
30. After more than ten years of waiting, your prompt consideration of this request is appreciated.
Very truly yours,
__/s_________________________
Joseph Margulies
Clinical Professor of Law
Roderick MacArthur Justice Center
Northwestern University School of Law
375 East Chicago Avenue
Chicago, IL 60611....
__/s_________________________
George Brent Mickum IV
5800 Wiltshire Drive
Bethesda, MD 20816
With the news that John Durham has decided to finally open criminal, and not just "preliminary," investigations into the deaths of two prisoners held by the CIA (apparently Manadel al-Jamadi and Gul Rahman) the CIA can now "exhale," as Spencer Ackerman describes it. The CIA's sigh of release is related to the fact that of at least 101 cases of CIA abuse only two might be prosecuted. Spencer quotes outgoing CIA Director Leon Panetta:
“On this, my last day as Director, I welcome the news that the broader inquiries are behind us,” Panetta wrote to the CIA staff on Thursday. “We are now finally about to close this chapter of our Agency’s history.”
Ackerman also quoted the new CIA director, General David Petraeus: "During his confirmation hearing last Thursday, Petraeus issued a public plea to take the 'rear view mirrors off the bus' and drop any inquiries into CIA torture. He also suggested that the CIA might return to abusive interrogations in “special cases” of imminent danger..."
Petraeus was approved for his new CIA position on a unanimous Senate vote. No one in Congress bothered to ask about his affiliation with former "Salvador option" specialist James Steele, or his activities in relation to the training of Iraq security forces, at the same time as U.S. forces were given a "fragmentary order" (FRAGO 242) which told U.S. forces not to interfere with the torture of prisoners they were handing over to these same Iraqi security forces. FRAGO 242 was a direct contravention of U.S. treaty obligations under the Convention Against Torture not to turn prisoners over to forces that would likely torture them.
But this is America, and it appears most of the reporting class, both mainstream and of the more alternative, "blogging" sort, have taken to heart the no-accountability plea of the Obama administration, and never bothered to ask why Petraeus was given such a free ride re questions about torture and other abuse under his command noted above, or his association with the operations of terror groups like the Wolf Brigade. (I plan to write more about this later.)
Comparing the 2002 OLC Memos with Later CIA Iterations of its "Techniques"
But not everyone is letting things slide. Marcy Wheeler is taking a closer look at the new information that we can glean from the Durham investigations. One thing she notes, which she has covered before, is how the techniques used on Rahman were never approved by the Yoo/Bybee memos. The water dousing and exposure to extreme cold were techniques noted in a 2004 letter written by the CIA General Counsel to the OLC's Jack Goldsmith, a follow-up request concerning the CIA's "Legal Principles Applicable to CIA Detention and Interrogation of Al-Qa'ida Personnel," otherwise known as the Bullet Points memo, and the earlier OLC memos . But did someone vet some of these techniques, at another time and place, for a different agency... at DoD perhaps?
I think it's worth noting that the Bullet points memo cited 17 techniques (it's really 16, though) the CIA relied upon, and it would be worth comparing those techniques in general with the ten approved torture techniques in the 2002 Yoo/Bybee memo.
Yoo/Bybee, 2002:
1. Attention grasp
2. Walling
3. Facial hold
4. Facial slap (insult slap)
5. cramped confinement
6. wall standing
7. stress positions
8. sleep deprivation
9. insects placed in a confinement box (really, the use of phobias)
10. the waterboard
-- I'd note, as I have before, that some of these techniques were really omnibus in nature, particularly "sleep deprivation", which included within its definition (from the Bradbury 2005 memo, which avers, however, to how "sleep deprivation" was already being used), "sleep deprivation, forced sleep deficit was combined, as we can see, with shackling, forced positions and forced standing, humiliation, manipulation of diet, sensory overload, and possibly other torture procedures." (quote is from my article)
Now, let's look at the Bullet Point document (4/28/2003), written (PDF) it appears by John Yoo and Jennifer Koester, with duplicated items from August 2002 asterisked; all others are "new" and presumably unapproved (though more on that in a moment).
1. Isolation
2. Sleep deprivation*
3. "reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainee)"
4. deprivation of reading material
5. "loud music or white noise (at a decibel level calculated to avoid damage to the detainee's hearing)"
6. the attention grasp*
7. walling*
8. the facial hold*
9. the facial slap (insult slap)*
10. the abdominal slap
11. cramped confinement*
12. wall standing*
13. stress positions*
14. sleep deprivation [this is a duplication in the list of #2, but is listed twice in the bullet point list, so is included here]
15. the use of diapers
16. the use of harmless insects* [though changed from the more precise use of insects in a confinement box from Yoo/Bybee 2002]
17. the waterboard*
On March 2, 2004, as Marcy Wheeler has noted, "CIA General Counsel Scott Muller [wrote] to Jack Goldsmith asking for reaffirmation of several legal documents, including [the] Legal Principles document, released with redactions". (PDF to Muller's letter)
Muller added some new techniques to the Bullet Points document, including pouring, flicking, or tossing of water ("water PFT) and "water dousing" (using water from a bucket or water hose). "Both water PFT and water dousing are used as part of the SERE training provided to US military personnel," Muller wrote, noting later in his letter, "there are virtually no health or safety concerns with water PFT as part of an approved interrogation plan."
Muller explains, too, that "[a] medical officer is present to monitor the detainee's physical condition during the water dousing session(s), including any indications of hypothermia. Upon completion of the water dousing session(s), the detainee is moved to another room, monitored as needed by a medical officer to guard against hypothermia, and steps are taken to ensure the detainee is capable of generating necessary body heat and maintain normal body functions."
These explanations about safeguards, written over a year after Rahman's death, appear to be a cover for Rahman's death, as evidently there were no safeguards used there. Or perhaps, Rahman was an experimental case, much as Zubaydah was when it came to other torture techniques ("walling" and waterboarding, for instance).
Gul Rahman died of hypothermia (and likely other torture) on November 20, 2002, shackled after a session of water dousing in a cold room in the CIA's infamous Salt Pit prison. Was there a medical monitor present? We have reason to believe that CIA doctors were at all the black sites, so what were they doing on November 20, 2002?
CIA and DoD Techniques Compared
As we have seen, by April 2004, the number of CIA known techniques have escalated to 18 (or 19, given the replication of "sleep deprivation" in the original list, which is, as I will suggest below, a typo, as most likely the second mention of sleep deprivation is really meant to be "sleep adjustment").
Finally, I think it's worth looking at the techniques approved for DoD by Rumsfeld on April 16, 2003, after the infamous "Working Group" review. I'm not going to list them all. They were divided into categories of severity. One of the techniques that led to the Working Group review was "Exposure to cold weather or water (with appropriate medical monitoring") in Jerald Phifer's October 11, 2002 memo to the Commander of Guantanamo's Joint Task Force 170 .
The DoD techniques, approved around the same time as the CIA's Bullet Point list, included (the list below is not definitive, but meant to compare/contrast with those above):
1. "Incentive/Removal of Incentive: Providing a reward or removing a privilege. 'above and beyond those that are required by the Geneva Convention, from detainees. [Sounds very much like "deprivation of reading material" in the Bullet Point document, though could be more related to sensory deprivation]
2. "Fear Up Harsh: Significantly increasing the fear level in a detainee."
3. "Pride and Ego Down: Attacking or insulting the ego of a detainee, not beyond the limits that would apply to a POW."
4. "Futility: Invoking the feeling of futility of a detainee."
5. "Mutt and Jeff: A team consisting of a friendly and harsh interrogator. The harsh interrogator might employ the Pride and Ego Down technique. [Caution: Other nations that believe that POW protections apply to detainees may view this technique as inconsistent with Geneva IIt, Article 13...]"
6. "Dietary manipulation: Changing the diet of a detainee; no intended deprivation of food or water; no adverse medical or cultural effect and without intent to deprive subject of food or water..." [bold emphasis added]
7. Environmental manipulation, including "adjusting temperature"
8. Sleep Adjustment, refers to shifting hours of sleep, i.e., playing around with circadian rhythms, "NOT sleep deprivation" [this may account for the confusion in the Bullet Points document, which appears to draw on approvals made for DoD, whatever the nature of those approvals).
9. False Flag
10. Isolation [which includes a host of caveats, including possible violations of Geneva III, Articles 13, 14, 34 and 126]
Savvy readers will remember that this was a ratcheting down of earlier DoD-approved techniques (Dec. 2002), that also included deprivation of light and auditory stimuli, stress positions, inducing stress by manipulation of detainee's fears (IPCRESS for those who remember that book/movie), 20 hr. interrogations, and hooding, among others.
It appears, from a pursuit of how the torture techniques migrated, that there was a good deal of synergy going on between DoD, CIA, and likely Special Forces. I'd point out that in the Muller letter to Goldsmith, there are some redactions, one of them concerns a redacted technique, one that is associated with SERE.
Like other approved interrogation techniques, [approximately sixteen character spaces redacted] is used as part of the Survival, Evasion, Resistance, Escape (SERE) training provided to US personnel.
The implication is that some other SERE technique was approved and the technique is being ported over from DoD. I believe the redacted technique could be "exposure to cold", which would fit the redacted area, and speaks to a technique otherwise unremarked in the Bullet Points document, but which was obviously used by CIA, as it was by DoD (under the rubric "environmental manipulation").
It's additionally worth noting there were psychologists and psychiatrists around who moved between all these agencies. Some techniques were apparently never written down or approved, but certainly used, particularly those that played on sexual humiliation or other cultural or religious sensitivities and vulnerabilities.
Factoring in the Experiments Angle
It would be a mistake to think that the documents will provide a full story of what occurred. This is especially true when it comes to considering what kinds of experimentation were actually being conducted on the detainees. Jason Leopold and I have written about the unprecedented use of the antimalarial mefloquine on all incoming detainees (see here, here, and here).
Another possible experiment may have surrounded the use of dietary manipulation, and the Seton Hall School of Law's Center for Policy and Research's study on The Guantanamo Diet noted, "The detainees’ weight varies so wildly that many have been obese briefly and underweight and malnourished at other times.... Professor Denbeaux concluded, “The most compelling question is how can the detainees’ weight swing from obese to under nourished when the medical staff is in complete control of all food intake.”
I'm looking into the latter issue, but will note that dietary manipulation, which shows up in the Bullet Point document as "reduced caloric intake", as well as DoD docs, is allowed so far as I can perceive in the current Army Field Manual (FM 2-22.3). The latter states "Depriving the detainee of necessary food, water, or medical care" is "prohibited," but I think, as in the caveat on dietary manipulation above, re the detainee's "general health" that there is a lot of room for leeway, i.e., what is considered "necessary"? Note the use of the word "intended" as regards "dietary manipulation" in the April 2003 list of DoD "techniques."
The list of AFM prohibited techniques is followed immediately by the following statement: "While using legitimate interrogation techniques, certain applications of approaches and techniques may approach the line between permissible actions and prohibited actions. It may often be difficult to determine where permissible actions end and prohibited actions begin."
"Know thou this, that men are as the time is." -- Shakespeare
In an excellent post at Inside-Out the Beltway on the controversy over the shameless refusal by the U.S. Department of Justice to formally charge former Bush-era torture memo attorneys John Yoo and Jay Bybee with professional misconduct for their work in legitimating torture on behalf of the U.S. military and CIA, Chris in DC makes a very, very important point in a response to one of his commenters (bold emphasis added):
Cetamua asked whether future administrations could prosecute Cheney and others for war crimes even if this one doesn't. I replied that this was theoretically possible (many of these crimes have no statute of limitations), but that the problem with delaying any kind of accountability for high-level misconduct is that, as time passes, the misconduct is seen as condoned by society and thus becomes much more difficult to punish.
This is especially the case where, as here, the establishment mantra throughout that time is that prosecuting the conduct is "criminalizing politics" (when, in fact, the precise opposite is happening: politicizing crime). In fact, establishment acceptance of this cynical distortion is even more harmful than mere reluctance or refusal to prosecute, because framing the criminal activity in a purely political context allows it to become openly advocated in mainstream forums by the political factions that most benefit from a failure to prosecute (e.g., Dick Cheney).
The outcome, then, of the politicization of crime caused by the "criminalizing politics" meme is that the debate shifts from whether the activity is reprehensible and punishable to whether the activity is smart and desirable. Hence, we see the continuing, unashamed arguments from right-wingers not only that brutal torture is not a crime (when done by or for the United States), but that torture is in fact wise and imperative national security policy, with its opponents cynically cast as weak and unserious for even suggesting otherwise.
This is why you cannot play games with matters as severe as these. Backing away from the only morally and legally sane response to war crimes - full criminal investigation and prosecution - is not a "trans-partisan" invitation to politely overcome the rancor and monstrousness of the past, it is the crucial first step to normalization and continuation of that same monstrousness and criminality.
While many will look at the legal aspects of the case, at the Congressional investigations supposedly to follow, etc., the overwhelming effect of reading the Office of Professional Responsiblity (OPR) material (see, for instance, Emptywheel's site, where Marcy Wheeler and a number of associates are dissecting the various components of the OPR report) is of a totally bankrupt, politically criminal government. These people operate at the moral level of an Eichmann. They are infected with the virus of torture, which in its later stages, metastasizes into feelings of omnipotence, delusions of grandeur, malignant narcissism, and outright sociopathy.
I don't believe I've seen such depictions of moral depravity at a fundamental level since the shenanigans of the distaff state of Salò.
Meanwhile, much of the population believes that Barack Obama, Eric Holder, and their associates are somehow going to change all this, even as they have taken clear steps -- not least placing David Margolis in charge of defanging the OPR report (which is from my standpoint underplayed anyway... letting Stephen Bradbury off, for instance) -- to make sure none of the governmental and military/intelligence criminals are ever held to account.
This failure to hold people accountable because the extent of U.S. criminality and illegal actions would become known has poisoned all political action in Washington, and no doubt extends to other components of government, and other issues (as in the recent failure to pass substantive health care reform).
The OPR report is a symptom of the extreme reactionary content of these political times. It is a gauntlet thrown down to the society at large. Are we really what these criminals represent? How can the mainstream press be so morally obtuse that they are not screaming about this from day one? What use a society such as this?
Update -- from David Swanson's Yoo, Bybee and Disinformation (I thought this worth quoting at length, especially since I agree with David's suggestions about what to do now):
Everything you're reading about torture lawyers John Yoo and Jay Bybee getting off the hook is wrong. They are not torture lawyers, they are not off the hook, there never was any hook, they may not be lawyers for long, impeachment and indictment are on the agenda, and you have a role to play.
Calling these men "torture lawyers" is dramatically dumber than labeling Al Capone a tax cheat. These are people who provided "legal" cover for aggressive wars, who put down in documents treated as secret "laws" that any president can launch any aggressive war at his whim, without regard to domestic or international law, Congress, the Supreme Court, you, me, or morality. The very report that is the subject of the latest "news" flurry quotes Yoo declaring that, "Sure!", a president can order a village massacred....
Yoo and Bybee are openly guilty of conspiracy to engage in aggressive war, banned by the U.N. Charter and Article VI of the U.S. Constitution, and of conspiracy to torture, a felony under 18 U.S.C. § 2340A-c and § 2441, and to spy without warrants, banned by the Fourth Amendment. Their memos are public. The fact that everyone waited for years to do anything about it, until they could see the Justice Department's own report on the matter doesn't change the absolute irrelevance of such nonsense. Yoo's and Bybee's actions, no matter what you make of them, consist entirely in authorship of a series of written documents available for all to read. And those documents constitute overwhelming grounds for impeachment and indictment....
The report concludes that these war lawyers "committed intentional professional misconduct". The fact that some schmuck in the DOJ adds a note saying that they don't really mean it, doesn't change the fact that any institution in which Yoo's and Bybee's behavior did not constitute misconduct would need to be destroyed in its entirety beginning with actions to newly identify as unacceptable Yoo's and Bybee's crimes. And that they are crimes is not really impacted by whether or not they are "misconduct".
Senator Patrick Leahy and Congressman John Conyers understand the need to at least pretend that they are not taking their orders from an agency conducting a transparent fraud.... the reports are now public and the fraud out in the open. But Leahy is asking Bybee to resign, Conyers is avoiding the word "impeachment," and neither one of these gentlemen -- stand-out frauds in their own rights -- is talking about subpoenas.
Two things are needed here. First, we need to deter ongoing crime through punishment....
Second we need to find a way for the public to re-enter our government and gain some modicum of control over what it does. That is going to require restoring powers to Congress, and that is going to require at least one committee at the very least enforcing its own subpoenas through the Capitol Police force, if not the Congress impeaching and removing from office someone who used to work in the so-called executive branch. There is a campaign building pressure to demand Bybee's impeachment at http://impeachbybee.org
The Justice Department has been publicly and lawlessly ordered by the president not to enforce laws against the war lawyers. The threat of the DOJ issuing an official recommendation of disbarment does not exactly qualify as a hook (to be let off of). Nor does impeachment, although it serves the critical purpose of shifting power back to Congress, sufficiently deter ongoing crimes. What's going to be needed in the end is prosecution. But that's going to have to come through massive public pressure and intense pressure from Congress, from abroad, and from a strengthened independent communications system.
Attorney General Eric Holder has ordered the release of the report of the Office of Professional Responsibility's (OPR) investigation into the culpability of the Office of Legal Counsel's activities in constructing the torture memos of August 2002 and beyond. These memos, written by John Yoo, Jay Bybee, Stephen Bradbury and others were rescinded in whole by Barack Obama soon after becoming president.
The OPR release is both interesting and frustrating. It contains both the first draft of the report, the second draft, the final report itself, and the memorandum for Holder written by David Margolis, which, as a Newsweek report predicted, partly exonerated Yoo and Bybee from charges of professional misconduct found in the OPR report itself, reducing their culpability to the much lesser charge of "bad judgment." (I wrote about Margolis's history at DoJ in running point guard on such cover-ups in an article at Firedoglake/The Seminal on a few weeks back. Scott Horton at Harpers also wrote his own article on some of Margolis's checkered career.)
Marcy Wheeler is currently holding forth, with her distinguished crew of commenters, in an open thread on the report over at Emptywheel/FDL. My H/T for the links above for the report go to her; and she also has links to the official replies of both Yoo and Bybee to the reports earlier drafts.
My frustrations regarding the release center around the amount of redactions. Many, if not most of them center around discussions or interactions concerning the CIA. It's clear the CIA played a central role in the vetting of the supposed safety of the SERE-centered torture techniques. CIA psychologists are said to have made representations regarding the safety of the "enhanced interrogation techniques," and solicited similar statements from SERE's parent agency, JPRA. CIA-contract psychologists, including James Mitchell and Bruce Jessen, apparently ran the torture interrogations in the Spring/Summer 2002, for which the initial torture memos were written as after the fact justifications. One thing the OPR report does is corroborate that such "EIT" interrogation took place before the memos were written.
What is not well-known is that both government military research, funded through Ft. Detrick, with the participation of CIA researchers, were involved in studying the "uncontrollable stress" of SERE-style torture in 2002. The actual deleterious effects of such torture were well-known to the military and CIA, who either kept such information from the OLC attorneys (which seems less likely now, given the amount of interaction between Yoo and the others with CIA and military attorneys like William Haynes), or lied about it to them, or they all collaborated in submarining such information.
When CIA psychiatrist-expert Charles A. Morgan (one of the key researchers in the Ft. Detrick study mentioned above) denied that his research was for anything but PTSD studies, and also denied links to the CIA, going so far as to scrub such attributions from his Wikipedia page, he didn't count on the fact that online references to his military research, which was not related centrally to PTSD, was available (see long PDF), or that an early draft version of the Intelligence Science Board's Educing Information report specifically lists him with CIA organizational ties, listed as part of the study's twelve man committee of interrogation "experts." (These are documents in my possession, not currently online.) This is a story I will be telling in full in the very near future.
Center for Constitutional Rights has released a statement on news of the report's release, and makes the following points:
In response to the release of the Justice Department’s Office of Professional Responsibility (OPR) report on the conduct of the lawyers involved in crafting and providing legal cover for the illegal torture program, the Center for Constitutional Rights issued the following statement:
At first look, the long-awaited OPR report makes it abundantly clear that the decisions about the torture program took place at the highest level, and the damning description of the program further show that the torture memos were written to order by the lawyers from the Office of Legal Counsel who played a key role in creating the program. The report underscores the need for a more thorough investigation that has more scope and powers to follow the evidence.
Among others, the lawyers John Yoo, Jay Bybee and Steven Bradbury have caused incalculable damage to our country and to thousands of victims as a result of the twisted legal advice they provided while at the Office of Legal Counsel. The OLC opinions were intended to provide legal cover for what everyone knew was illegal conduct. They advised the establishment of the prison at Guantanamo outside the law through the purposeful evasion of the Geneva Conventions and they advised the creation of a secret detention network for “enhanced interrogations” in flagrant violation of domestic and international law. Once unthinkable, they authorized and justified torture, rendition and secret CIA detention, often in a hands-on manner so detailed that it gives the lie to the notion they were giving abstract legal advice rather than making policy decisions to use torture
Ultimately Jay Bybee must be impeached, tried and removed from his seat as a federal judge on the 9th Circuit, but he should have the decency to resign immediately.
While the OPR should have recommended state bar associations professionally sanction the attorneys for ethics violations, and it is clear these men should be disbarred and prevented from ever practicing law again, we call on Attorney General Eric Holder to order these men criminally investigated by an independent special prosecutor who is allowed to follow the facts where they lead, all the way up the chain of command. We further call on the state bar associations, who are in no way bound by the conclusions of the report, to sanction the torture lawyers.
In addition, we demand that the OLC and CIA release the all of the records CCR is seeking with co-counsel through the Freedom of Information Act (FOIA) in Amnesty International, CCR, et al. v. CIA, about the CIA’s torture, rendition and secret detention practices. The time has come for the public to see all of the documents that show the role these lawyers played in fashioning one of the most shameful sets of practices ever to emanate from Washington. A review of the OPR Report further confirms the illegal nature of the CIA’s practices; the government cannot abuse the FOIA to conceal these illegal or embarrassing government actions.
Adapted from an article previously published at The Seminal/FDL
Michael Isikoff and Daniel Klaidman have scooped the press with a Newsweek article claiming to know the verdict of the Department of Justice Office of Professional Responsibility report on the investigations into misconduct and unprofessional behavior by the Bush administration attorneys involved drafting the memos allowing the use of coercive interrogation techniques on prisoners. These techniques were largely derived from reverse-engineering torture inoculation procedures from the military’s Survival, Evasion, Resistance, Escape, or SERE programs.
According to Isikoff and Klaidman, the original verdict of the report was changed after the report was reviewed by the attorneys accused, and then reassessed by long-time DoJ honcho, David Margolis. The Newsweek article explains (emphasis added):
Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources….The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action—which, in Bybee’s case, could have led to an impeachment inquiry.
In an initial assessment by bmaz at Emptywheel, for whom I owe the H/T for the Newsweek article:
Margolis is nearly 70 years old and has a long career at DOJ and is fairly well though of. Margolis was tasked by Jim Comey to shepherd Pat Fitzgerald’s Libby investigation. In short, the man has some bona fides....
Margolis is, however, also tied to the DOJ and its culture for over forty years, not to mention his service in upper management as Associate Attorney General during the Bush Administration when the overt acts of torture and justification by Margolis’ contemporaries and friends were committed. For one such filter to redraw the findings and conclusions of such a critical investigation in order to exculpate his colleagues is unimaginable.
But the involvement of Margolis in defanging the OPR report, and thereby assuring that governmental agencies or bar associations will not hold John Yoo, Jay Bybee and other Bush-era attorneys accountable for paving the way for legalistic torture, is perhaps not an incidental fact.
Dubious David
The role of Margolis, and the man himself, deserve a closer look. It does not take long to see that 40+ year DoJ veteran David Margolis has some skeletons in his closet, and that his track record is not unblemished.
In a July 2000 letter to the New York Review of Books by by E.L. Doctorow, Peter Matthiessen, William Styron, Rose Styron, Kurt Vonnegut, singled out Margolis as "point man" on a DoJ "vendetta" against Cointelpro victim Leonard Peltier.
Three months ago, in March, I had a phone call from a lawyer who has never been involved in the Peltier case but was aware of my longtime concern. A friend in the Justice Department had just mentioned to him that the FBI was intensifying its anti-Peltier vendetta within the department, with Associate Deputy Attorney General David Margolis as the point man.
More recently, a 2008 Los Angeles Times story indicated that Margolis had changed DoJ policy and decided to withhold summaries of OPR investigations. The article noted that " the resolution of most matters investigated by the OPR remains closely guarded, even in cases where courts have found evidence of serious prosecutorial misconduct."
The LA Times continued:
Publishing the summaries "reassures the public that [the Department of Justice] takes its self-regulatory responsibilities seriously and puts prosecutors on notice that they face public embarrassment if they are caught engaging in wrongdoing," said Bruce Green, a former federal prosecutor and a professor at Fordham Law School in New York.
Associate Deputy Atty. Gen. David Margolis said it was his decision to excuse the OPR from preparing summaries of cases that might be released to the public. He said the decision reflected a lack of resources, as well as concern about balancing public interests with the privacy rights of individual attorneys facing accusations.
A 1999 story involves then Assistant Attorney General Eric Holder and Margolis acting together to spike a serious investigation into the 1993 Waco disaster, and in particular after it was discovered the FBI and DoJ had lied for years about using military incendiary devices at the Branch Davidian siege. Holder was overseeing an investigation led by Republican Senator John Danforth into the Waco Branch Davidian government siege. Bill Clinton's Attorney General Janet Reno had taken the investigation out of the hands of U.S. Attorneys in Texas and given to GOP stalwart Danforth, who later exonerated the FBI of any wrongdoing, and recommended indictment of the only whistleblower in the case, U.S. Attorney William Johnston.
The Justice Department has removed the entire U.S. Attorney’s Office for the Western District of Texas from further work related to the 1993 siege of the Branch Davidian compound near Waco, Tex. The broad recusal is intended to avoid conflicts that could impede a fresh investigation being led by former senator John C. Danforth (R-Mo.), a senior Justice Department official said yesterday.
Deputy Attorney General Eric H. Holder Jr. said U.S. Attorney Bill Blagg, whose office handled the criminal trial of the Branch Davidians in 1994, requested that his Western District office be recused from further work on Waco. Holder said that it is routine to approve recusal requests and that David Margolis, the senior department official who handled the details of the matter, told him he had never turned down a recusal request….
One of the attorneys in Blagg’s office who is being recused is Assistant U.S. Attorney William Johnston, who recently sent Attorney General Janet Reno a strongly worded letter warning that she had been misled by people within her department about the Waco siege. Holder said the broad recusal had nothing to do with Johnston’s letter.
Holder, who is second-in-command at the Justice Department, has been overseeing the Danforth probe since last week, when Reno recused herself from the matter because she too anticipates being a witness in the Danforth inquiry.
I’d say that Margolis’s “clean” reputation has been meticulously assembled, and I’m sorry if there are progressives who fell for it. Until I investigated further, I had no reason to question it myself. It goes to show that received wisdom if often not wisdom at all, and that we need to have a curious mind when it comes to acceptance of good intentions by this particular government (or maybe any government).
Margolis Covers-up Earlier Interrogation Scandal?
More speculatively, and intriguing, given the claims involved, is Margolis’s involvement in the investigation of a forgotten FBI sting operation against NASA contractors in the early 1990s. Operation Lightning Strike was, according to a Washington Post article at the time, a "20-month Justice Department sting operation focusing on NASA’s Johnson Space Center in Houston… [resulting] in criminal fraud and bribery charges against nine men and one contractor."
Later, in 1996, a defense committee was formed to support the "NASA-13". The committee, in a petitionto the U.S. House of Representatives Government Reform and Oversight Committee claimed that the men caught up in the Operation Lightning Strike, some of whom were victims of "’frame-ups’ and torture, to obtain prosecutions." David Margolis was mentioned as admitting that an OPR investigation into the case was begun in 1994 to look into "investigative and prosecutive misconduct." However, no results from that report were ever made public. The involvement of Margolis in this case deserves further scrutiny, given it involved serious allegations about coercive interrogations and torture.
A defense committee press release was more specific about the abuses conducted by the FBI:
In a report submitted to Congress today, a team of defense attorneys representing the so-called "NASA-13," requested the US. House of Representatives Government Reform and Oversight Committee to hold hearings and appoint a Special Prosecutor, not affiliated with the U.S. government, to investigate the "NASA-13" cases in the light of scientific research competed by a team of NASA industry experts, defense attorneys and behavioral scientists. This report furnishes evidence that at least one of the NASA/IG Federal agents who conducted the NASA sting operation in Houston from 1991 to 1994 was in fact a highly qualified military intelligence interrogator, who with the FBI, employed a highly dangerous form of "psycho-technology" known in the behavioral science community as "Coercive Persuasion" or "CP", a form of mind control.
The phenomenon of "CP" was first observed in the post-traumatic reactions of Korean War military and civilian POWs. Many of these prisoners had confessed to non-existent crimes and cooperated with the enemy after having been subjected to what was then called "brainwashing."
Given that these claims are coming from a pre-9/11 era, they cannot be said to be derivative of recent news reports and scandals. I am not convinced about what actually went on in this case, but it is notable that the defense committee procured a letter from well-known psychologist, and former government Margaret Thaler Singer backing the claims of the defendants:
I have reviewed the Lightning Strike Victims Questionnaires and summary provided by the NASA-13 Defense Committee, and I concur with the committee’s assessment that there is substantial data in these highly consistent statements to confirm that a program of Coercive Influence was employed in the Interrogations of the Lightning Strike Suspects . The questionnaires uniformly reveal a systematic application of psychological techniques, in an organized programmatic way, within a constructed and managed environment, which was aimed at the participants sense of self and sense of reality, producing extreme anxiety and emotional distress….
Such programs can and regularly do produce psychiatric casualties. Practitioners of these programs attempt to hold the subject at the point of maximum stress, without inducing psychosis. My experience over the past four decades and in observing over 3,000 cases since participating in the evaluation of released Korean POW’s, unfortunately reveals that practitioners of these nefarious methods frequently exceed the limits with devastating results.
According to the defense committee, Department of Defense interrogators played key roles in the interrogations of the defendants, as aspect of the case that has also never been explained.
Now this may all be a lot of smoke, but when one adds in the latest role played by Mr. Margolis in spiking the initial results of misconduct on behalf of Yoo, Bybee, Addington, et al. (if we can believe the Newsweek leak), his appearance in this role does not seem so remarkable. Margolis appears to have a long history of involvement in government frame-up and/or obfuscation of internal misconduct by the FBI or Justice Department prosecutors.
Will we see the intrepid U.S. press look more deeply into this? One could wish this were true. Every once in a while the mainstream press shows what it’s capable of, as with the exposure of torture at Bagram under Obama’s administration, or with Scott Horton’s Harper’s revelations on the 2003 killings of three Guantanamo prisoners, covered-up as supposed "suicides".
But the OPR report is shaping up to be one gigantic cover-up, assuming we ever get to see much of it, after the government censors get done with it.
The country is thick with torture and crime, and unable to free itself from thralldom to its governmental enablers. Let’s see how easily Holder, Obama, and Margolis get away with their cover-up of Yoo, Bybee, Gonzales, and Addington’s lies and alibis. Meanwhile, torture continues as official policy of the Obama administration in the guise of an appendix to the Army Field Manual. But outside of Emptywheel, some former interrogators, and a few others, no one seems to care.
Alliance for Justice announces the release of its new documentary, Tortured Law, which examines the role lawyers played in authorizing torture. The film is being used to spark debate across the country, and calls on Attorney General Eric Holder to uphold the Constitution and the law by releasing the Justice Department's report on the "torture memos" and authorizing a full investigation of those who ordered, designed, and justified torture.
H/T for this video to Marcy Wheeler, who has an interesting post up on the latest delay in the Office of Professional Responsibility report on the OLC torture memos of Yoo, Bybee and Bradbury. She links the delay to the review of CIA attorney John Rizzo, and/or the CIA generally.
I'd say she is absolutely right. The reason is, I believe, in part due to the fact that the CIA's own Office of Technical Services (OTS) wrote an extensive report on the SERE-derived torture techniques for use by the Office of Legal Counsel in their construction of the first of the torture memos. The OTS report to OLC lied about the medical and psychological consequences of the proposed techniques. We know they lied because researchers in the same directorate of the CIA had themselves been studying the severe effects of these techniques going back at least to the 1990s.
The CIA must be working overtime to redact almost every culpable portion of the OPR report that links the OLC memos to the initial OTS/CIA report vetting the "enhanced interrogation techniques." If the latter comes out -- and the OTS paper is still classified, and according to my sources, until recently ACLU was not even aware of its existence -- then we will have a very clear picture of the culpability of the CIA in the construction of the torture program, just one short step away from the Oval Office orders, which Dick Cheney and Bush have already indicated they gave.
If the American public, and society in general, cannot totally dismantle this torture apparatus, bring its actors to the bar of justice, and ensure that this kind of serious criminality is stopped and prosecuted, then I fear for the future of this country... because it won't be very long before whatever the United States was, it will cease to exist, except perhaps in name only. It will be something too awful to contemplate, and a long dark chapter in history won't be ending, but just beginning.
This article looks at those recent charges, and reveals that experiments by a CIA researcher on human subjects undergoing SERE training went unreported in the legal memos the Bush administration drafted to approve their torture program. It will also connect major military and intelligence figures to the SERE experiments, and tie some of them to major science and "experimental" directorates at the CIA and Special Operations Command.
An article by veteran journalist William Fisher, looking at PHR's white paper, asks, "Did physicians and psychologists help the U.S. Central Intelligence Agency develop a new research protocol to assess and refine the use of waterboarding or other harsh interrogation techniques?"
A column at Scientific American quotes PHR's medical advisor on the subject:
[PHR] also raises questions about the ethics of medical note-taking during some of the interrogations. "Medical doctors and psychologists colluded with the CIA to keep observational records about waterboarding, which approaches unethical and unlawful human experimentation," Scott Allen, lead study author and PHR medical advisor, said in a prepared statement.
Finally, a story in Wednesday's UK Guardian discussed the significance of the charges of unlawful human experimention:
Human experimentation without consent has been prohibited in any setting since 1947, when the Nuremberg Code, which resulted from the prosecution of Nazi doctors, set down 10 sacrosanct principles. The code states that voluntary consent of subjects is essential and that all unnecessary physical and mental suffering should be avoided.
The Geneva conventions also ban medical experiments on prisoners and prisoners of war, which they describe as "grave breaches".
After describing how "[h]ealth professionals in the Office of Medical Services and psychologist contractors engaged in designing and monitoring" torture, as "selecting and then rationalizing" the use of various harmful interrogation techniques, the PHR report goes on to say:
By requirement, all interrogations were monitored in real-time by health professionals. Previous reports, including the ICRC report, document allegations that a medical device called a pulse oximeter (a device to measure oxygen saturation in a subject’s blood) was placed on the finger of a detainee to monitor the effectiveness of his respiration during waterboarding. In this way, medical professionals were used to calibrate physical and mental pain and suffering....
The possibility that health professionals monitored techniques to assess and improve their effectiveness, constituting possible unethical human experimentation, urgently needs to be thoroughly investigated.
An Experimental "Battle Lab"
The CIA's Office of Medical Services was supposed to be in charge of monitoring "detainee" health under interrogation. However their instructions, described in an annex to the CIA Inspector General report, exemplifies the dual nature of the "monitoring," as this example from the report shows:
If there is any possibility that ambient temperatures are below the thermoneutral range, they should be monitored and the actual temperatures documented. [2 or 3 redacted lines]
At ambient temperatures below 18 [degrees]C/64 [degrees]F, detainees should be monitored for the development of hypothermia. [Four redacted paragraphs]
Rather than make changes to ambient temperatures, to prevent harm to prisoners, medical professionals are instructed to monitor and document the situation. The torture techniques used by SERE are known to cause endocrine and metabolic disorders (see section on CIA research below), prisoners tortured and subjected to cold are at higher risk of hypothermia, which for a normal person can set in at an ambient temperature of 60 degrees F. The monitoring in this case seems to be as much about experimentation as it is any concern for a prisoner's health. (For what other possible reason could this section be mostly redacted?) Parallels to the experiments on hypothermia by Nazi scientists at Dachau are chilling, as is the fact that some of these scientists were later imported, along with their data, to the United States.
Questions were raised around possible human experimentation in an article last May at Firedoglake on "The Zubaydah Torture 'Experiment,'" noting, "Of the many fascinating details coming out of [the May 2009 Senate] Judiciary hearing... the references to the application of an experiment by the ex-SERE CIA contractor, most likely James Mitchell, seemed especially important."
The experimentation was not limited to "high-value" CIA prisoners. Last April, another article at Firedoglake reported how the Senate Armed Services Committee report (PDF) on prisoner abuse described the creation of an experimental "battle lab" at Guantanamo, demonstrating support for the torture program from the main Army intelligence school at Ft. Huachuca.
According to the Levin report, in August 2002, "COL John P. Custer, then-assistant commandant of the U.S. Army Intelligence Center and School at Ft. Huachuca, Arizona" conducted a review of interrogations operations at Guantanamo. Custer called Guantanamo "America's 'Battle Lab'" in the war on terror, and recommended combining FBI and military techniques to extract "information by exploiting the detainee's vulnerabilities." The "Battle Lab" label stuck, though some, like Colonel Britt Mallow, of the Criminal Investigative Task Force, objected.
MG Dunlavey and later MG Miller referred to GTMO as a "Battle Lab" meaning that interrogations and other procedures there were to some degree experimental, and their lessons would benefit DOD in other places. While this was logical in terms of learning lessons, I personally objected to the implied philosophy that interrogators should experiment with untested methods, particularly those in which they were not trained.
Later, Dunlavey denied using the term, and Miller testified he couldn't remember.
Pre-9/11 Experiments on SERE Torture
The experiments on the effects of SERE-torture techniques began even earlier -- upon SERE trainees themselves. An April 2009 AlterNet article reported on the history of experimentation on soldier subjects undergoing SERE training. (SERE is a military program, the acronym standing for Survival, Evasion, Resistance, Escape.) The article explained how the Office of Legal Counsel (OLC) and the CIA "ignored a wealth of other published information about the effects of SERE 'stress inoculation,'" citing a June 2000 article, "Assessment of Humans Experiencing Uncontrollable Stress: The SERE Course," in Special Warfare(PDF). Special Warfare is "The Professional Bulletin of the John F. Kennedy Special Warfare Center and School" (emphases added to following quote):
Results
As shown in the charts on page 7, SERE stress caused significant changes in students' hormone levels. Recorded changes in cortisol levels were some of the greatest ever documented in humans. In some cases, the changes noted among the trainees were greater than the changes noted in patients undergoing heart surgery....
Changes in testosterone levels were similarly remarkable: In some cases, testosterone dropped from normal levels to castration levels within eight hours.
Conclusions: The stress of military survival training produced dramatic alterations in cortisol, percent free cortisol, testosterone, and thyroid indices. Different types of stressors had varying effects on the neuroendocrine indices. The degree of neuroendocrine changes observed may have significant implications for subsequent responses to stress.
Looking beyond more than physiological symptoms, other studies have looked at purely psychological data. Consider this oft-quoted study from the August 2001 edition of the American Journal of Psychiatry, which looked at dissociative symptoms, such as depersonalization, derealization, psychic or emotional numbing, and general cognitive confusion, produced in military subjects exposed to SERE torture techniques (emphasis added):
The current study was designed to assess the nature and prevalence of dissociative symptoms in healthy humans experiencing acute, uncontrollable stress during U.S. Army survival training. METHOD: In study 1, 94 subjects completed the Clinician-Administered Dissociative States Scale after exposure to the stress of survival training. In study 2, 59 subjects completed the Brief Trauma Questionnaire before acute stress and the dissociative states scale before and after acute stress. A randomly selected group of subjects in study 2 completed a health problems questionnaire after acute stress. RESULTS: In study 1, 96% of subjects reported dissociative symptoms in response to acute stress. Total scores, as well as individual item scores, on the dissociation scale were significantly lower in Special Forces soldiers compared to general infantry troops. In study 2, 42% of subjects reported dissociative symptoms before stress and 96% reported them after acute stress.
Other research results include the effects of SERE-style torture upon the immune system and other biological markers. The findings regarding high levels of cortisol upon subjects was corroborated by a SERE psychologist at the Navy Brunswick, Maine, SERE school, who -- according to an unclassified, undated Talking Paper from the Joint Personnel Recovery Agency -- found "empirical medical data... [of] elevated levels of cortisol in the brain stem caused by stress levels incurred during water-boarding." The Brunswick school subsequently discontinued waterboarding as part of its SERE training, as it created a "negative learning environment." The other Navy SERE school, in North Island, California, refuses to eliminate exposure to waterboarding as part of its training program, despite the opposition of JPRA and the other SERE schools, which believe it can induce a "learned helplessness" state in students.
SERE Research and the Development of the Torture Program
One of the lead researchers in a number of these studies is Yale psychiatrist Charles A. Morgan, III. According to one source, "Over the past 10 years, Dr. Morgan has served as a Subject Matter Expert to the US Special Operations Command." But at a June 2004 symposium on "The Nature and Influence of Intuition in Law Enforcement," sponsored by the U.S. Department of Justice, the Behavioral Analysis Unit of the FBI, and the American Psychological Association, Dr. Morgan is listed as affiliated with "Behavioral Science, CIA."
Additionally, in the Information Science Board (ISB) document, Educing Information -- which was heavily drawn upon by President Obama's task force on interrogations, for recommendations on the interrogations issue -- Dr. Morgan is identified as a member of the 11-person "Government Experts Committee," and listed as affiliated with the Intelligence Technology Innovation Center (ITIC). According to Intelligence Online, ITIC is "a research organization under the CIA's authority," which "answers directly to the CIA's Science and Technology directorate."
The Obama Interrogations Task Force recently made clear they found a lot to value in the ISB study (emphasis added):
The Task Force concluded... that the United States could improve its ability to interrogate the most dangerous terrorists by forming a specialized interrogation group, or High-Value Detainee Interrogation Group (HIG), that would bring together the most effective and experienced interrogators and support personnel from across the Intelligence Community, the Department of Defense and law enforcement. The creation of the HIG would build upon a proposal developed by the Intelligence Science Board.
Whatever the fate of the HIG, what is noteworthy here is that the Office of Technical Services (OTS), which was cited in the recently released 2004 CIA Inspector General report as having vetted the aggressive SERE interrogation techniques, is, along with the ITIC, also a part of the Science and Technology directorate. OTS, formerly the Technical Services Division (or Technical Services Staff), was the branch of the CIA in charge of torture and assassination. It was also in charge of the experimental mind control and interrogation program known as MKULTRA.
Dr. Morgan's online profile states that between 1998 and 2002 he received over $400,000 in research grants from the Army and the Office of Naval Research (ONR) for studies on "Psychobiological Assessment of High Intensity Military Training" and "Neuro endocrine assessment of Survival School Training." A 1977 Washington Post expose -- those were the days of scandalous revelations surrounding the CIA's MKULTRA program -- describes CIA use of ONR to funnel funds for secret experiments in the 1950s and 1960s. The same relationship was also explored during a 1977 Senate Intelligence Committee hearing. This is not evidence that Morgan's research was paid for by the CIA, but along with his institutional affiliation, it is suggestive of possible CIA involvement.
While it is unknown to what degree the CIA was directly involved in the SERE research (outside of Dr. Morgan's affiliation), Special Operations Command reportedly was a major supporter.
The co-author of the Special Warfare article referenced above, and working with Dr. Morgan on a number of other SERE research papers looking at physiological and psychological effects of SERE techniques, was Gary Hazlett, a clinical psychologist with the Psychological Applications Directorate at U.S. Army Special Operations Command. Moreover, Morgan and Hazlett cited "the approval and support [for their research] of Lieutenant General William Tangney, Major General Kenneth Bowra, Major General William G. [B]oykin and many others..."
Maj. Gen. Bowra retired from the military in 2003, after serving as Commanding General of Army Special Operations Command South, U.S. Southern Command. Following the military, he went to work as Senior Program Director with Oak Ridge National Laboratory, serving as national laboratory liaison to U.S. Joint Forces Command, J9 Directorate. Another source states that currently Bowra is senior mentor/concept developer at USJFCOM J9 for Joint Urban Operations and Homeland Security experimentation. J9 stands for the Joint Concept Development and Experimentation Directorate (JCD&E). It "leads the development of emerging joint concepts, conducts and enables joint experimentation, and coordinates DoD JCD&E efforts in order to provide joint capabilities to support the current and future joint force commander in meeting security challenges."
The possible involvement of USJFCOM's J9 in research upon SERE follows upon the revelation, discussed above, that CIA's OTS, part of CIA's Science and Technology directorate, was heavily involved in the implementation of the SERE techniques for use by the CIA. While the use of the term "experimentation" appears to have a broad meaning in military usage, beyond that of conducting scientific experiments, given the charges surrounding human experimentation upon torture victims, any connections between these secretive "experimental" directorates and the SERE torture program, or research upon it, is worrisome.
Maj. Gen. Boykin was the controversial former commander of Special Operations Command at Fort Bragg, North Carolina, who resigned over statements that indicated he saw the "war on terror" as a religious war. At the time he was Special Operations commander at Fort Bragg, according to a recent New York Times article, SERE psychologist James Mitchell was completing his last military assignment as "psychologist to an elite special operations unit in North Carolina." Boykin previously served as CIA Deputy Director of Special Activities, and in June 2003, became Deputy Undersecretary of Defense for Intelligence under Donald Rumsfeld right-hand man, Stephen Cambone.
Lt. Gen. Tangney is yet another former commanding general at Army Special Operations Command. Also retired from the military, he is currenly Senior Vice President for Intelligence, Security, and Special Operations, at Future Technologies, Inc., a supplier of, among other things, a "well-developed global network of experienced intelligence, security and special operations professionals" working with Special Operations, the Defense Intelligence Agency, and other military customers.
While Dr. Morgan appears to be well-connected among the military and intelligence elite, it is important to remember that there is no reason to conclude that Dr. Morgan or his co-researchers have ever been involved in torture or experiments meant to be used for torture. (We cannot say the same for CIA or military medical or psychological personnel, however.) In fact, it is possible that Dr. Morgan's research has led him to oppose coercive interrogation techniques, as his published research documents the debilitating effects of SERE torture, which utilized against a prisoner could only be considered cruel, inhuman, or degrading treatment, if not torture. (Although, at the 2007 convention of the American Psychological Association, Dr. Morgan indicated he was against the idea of removing psychologists from national security interrogations, which was being considered in a motion before APA at that time.)
Many SERE veterans were appalled at the “reverse engineering” of their methods, said Charles A. Morgan III, a Yale psychiatrist who has worked closely with SERE trainers for a decade.
“How did something used as an example of what an unethical government would do become something we do?” he asked.
Dr. Morgan's comments appear to put him at odds with other members of the CIA's Science and Technology directorate, particularly those who work for OTS, as well as individuals within the Pentagon and Special Operations Command, who have been tied to elements of the U.S. torture program.
The Suppression of Research on SERE in the OLC Memos
What is clear is that the CIA and the Pentagon had plenty of experimental evidence from the peer-reviewed, published research of Dr. Morgan and his associates (and possibly others), both before and after 9/11, that SERE techniques had serious, debilitating effects on individuals subjected to them. As this research is never cited in any of the Office of Legal Counsel memos issued to the CIA around their torture program, it appears such research was deliberately withheld from government attorneys as the CIA sought approval for the use of SERE-style torture. Nor was this obscure research, but had been funded by the government at a minimum of hundreds of thousands of dollars, and promoted by some of the Pentagon's highest generals.
The frenzied search for data on waterboarding, sleep deprivation, isolation, confinement in a small box, etc., to submit to OLC attorneys making legal determinations on whether proposed interrogation techniques constituted torture, was a kabuki organized by the CIA. The OLC attorneys involved -- John Yoo, Stephen Bradbury, Jay Bybee, and others -- were witting or unwitting partners in suppression of CIA research on torture (as future investigations will disclose). Given the participation of members of the Office of the Vice President, particularly David Addington and Vice President Cheney himself, in the promulgation of the torture program, and the composition of the memos, it seems likely they were also involved in the suppression of this material. As a result, the memos produced authorizing the "enhanced interrogation techniques" were composed as the result of fraud and bad faith, the result of a criminal conspiracy to implement illegal torture techniques.
The public response to the recent "white paper" by Physicians for Human Rights shows there is great interest in following up on charges of human experimentation upon torture victims of the U.S. government. The Congress and Department of Justice should move swiftly to initiate full, open investigations and charges against those involved.
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I am a retired psychologist, having worked as a clinician in the Bay Area for over 20 years. I have written about torture, national security, civil rights and other topics. Most of my stories, including major investigatory pieces (some co-written with Jason Leopold) have been published at Firedoglake, Truthout, and The Public Record.
A full backlog of my pre-Invictus writing, going back to May 2005, can be found at my Daily Kos page.
E-mail me at sfpsych at gmail dot com.
This documentary, by award-winning producer Sherry Jones, details how the secret U.S. military interrogation program - "Survival, Evasion, Resistance and Escape" - or SERE - became the basis for many of the harshest methods used in interrogating prisoners in U.S custody.
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