DoD Deception Masks Fact SERE Torture Techniques Still Allowed for Interrogations

Recent revelations about the content of a still secret Senate report on the CIA’s rendition, detention and interrogation program, which allowed for use of torture, highlight the use of techniques used by a little-known military department.

These techniques from the military’s Survival, Evasion, Resistance and Escape program (SERE) had been lifted from a mock-torture prison camp exercise used to inoculate U.S. prisoners against the effects of torture. Two military psychologists hired as contractors for the CIA allegedly helped form the CIA’s controversial “enhanced interrogation” program.

James Mitchell, one of the two psychologists, recently told The Guardian newspaper he could not talk about the specifics of the program due to a non-disclosure agreement, which carried "criminal and civil penalties" should he violate it. But the details of the program, used in slightly different forms by both the CIA and the Department of Defense have been examined in numerous press and governmental reports.

Currently, the use of SERE techniques is supposedly banned for use by both CIA and Defense Department interrogators.

But a key U.S. Defense Department directive rewritten only a month before Barack Obama was first elected President used a legalistically-carved definition for SERE techniques to hide the fact that important components of the SERE interrogation techniques that could amount to torture were still available to U.S. interrogators.

Procedures for "Control, Dependency, Compliance, and Cooperation"

In October 2008, only a few weeks after the U.S. Senate Armed Services Committee finished the second of two hearings on Defense Department (DoD) torture of detainees in Guantanamo, Afghanistan and Iraq, the Pentagon released a new version of its directive on "DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning."

The Senate hearings had focused on how after 9/11 SERE techniques had been turned into a proactive torture program to be used on prisoners captured by the military. The hearings (which produced a report in November 2008) documented how in December 2001, and on subsequent occasions, representatives from Secretary of Defense Donald Rumsfeld's office approached officials at the Pentagon's Joint Personnel and Recovery Agency (JPRA), which oversaw many of the military’s SERE programs, asking for assistance in using SERE techniques in interrogations. JPRA officials were more than willing to help.

According to the Senate report, SERE-derived techniques included "the facial slap, walling, the abdomen slap, use of water, the attention grasp, and stress positions," in addition to "use of smoke, shaking and manhandling, cramped confinement, immersion in water or wetting down, and waterboarding." Many of these techniques also were used by the CIA in its so-called "enhanced interrogation program,” but were not the subject of the Senate Armed Services Committee investigation. They are, however, said to be a key aspect of the Senate Intelligence Committee's report on the CIA's program.

Along with the techniques listed by SASC, a separate but complementary set of procedures included "tactics derived from JPRA SERE school lesson plans… designed to 'induce control, dependency, complia[n]ce, and cooperation,' including isolation or solitary confinement, induced physical weakness and exhaustion, degradation, conditioning, sensory deprivation, sensory overload, disruption of sleep and biorhythms, and manipulation of diet."

These "control" techniques ultimately formed an essential part of the military's post-9/11 detention and interrogation program. After the CIA’s “high-value detainees” were sent to Guantanamo in summer 2006, a new Army manual on interrogation introduced a special technique “restricted” to non-POW detainee “enemy combatants,” like those held at Guantanamo.

Titled “Separation” in Appendix M of the Army Field Manual 2-22.3 on interrogations, it was never one technique, but a collection of detention treatment procedures meant to disorient and break down prisoners using a combination of isolation (solitary confinement), modified forms of sleep deprivation and sensory deprivation, in addition to dietary and environmental manipulations, so long as they were not deemed “extreme.”

Yet the new interrogation techniques were so rough they required the presence of medical professionals, “in the event a medical emergency occurs,” according to the manual.

Scandal Leads to SERE "Ban"

Possibly in reaction to the Senate investigation and the wide press coverage of SERE-derived abuse and torture by the military, the new version of the Department of Defense directive on intelligence interrogations introduced in October 2008 now included a prohibition on the use of SERE techniques by military. The news was quickly reported.

One prominent news agency reported, "Pentagon bans SERE interrogation techniques." Steven Aftergood, writing for Secrecy News, part of the Federation of American Scientists' Project on Government Secrecy, noted that by the supposed banning of SERE techniques the directive "closes loopholes in detainee interrogation policy."

But a close reading of the DoD directive, numbered 3115.09, shows that only a portion of the SERE techniques were banned, even though the document clearly states, "Use of SERE techniques against a person in the custody or effective control of the DoD or detained in a DoD facility is prohibited."

But back in 2008, no one noticed the military’s sleight-of-hand regarding use of the controversial SERE techniques. The deception was hidden in the "Definitions" section of the directive, where "SERE techniques" are defined in the document as "Those techniques used by SERE school instructors that are not authorized in Reference (i) for use as intelligence interrogation techniques" (emphasis added).

Reference (i) refers to the Army Field Manual, the interrogation manual authorized by President Barack Obama's Executive Order 13491 to be the standard for all Department of Defense and CIA interrogations.

Cover-up

The Pentagon maintains the fiction that SERE techniques were prohibited. A 2010 DoD Inspector General report found the military had followed recommendations from an earlier military report on “detainee abuse” to eliminate the SERE techniques. In particular, the 2010 Defense Department report concluded the current version of the Army Field Manual “does not authorize the use of any SERE techniques as approved intelligence interrogation techniques.”

In fact, the Army Field Manual utilizes techniques of interrogation that many human rights and legal groups have described as torture or cruel, inhumane and degrading treatment of prisoners. The techniques involved -- use of isolation, sleep deprivation (no more than 4 hours sleep per night), partial sensory deprivation, manipulation of fears, inducing hopelessness, diet and environmental manipulation, etc. -- sound very much if not exactly like those SERE school lesson plans designed to induce control, dependency and compliance described in the Senate investigation into SERE-like torture of detainees.

While the military ultimately did ban certain techniques, like the use of "working dogs" to scare detainees, the use of hooding, and manipulation of phobias by Behavioral Science Consultants used in interrogations (nothing was said about manipulation of such phobias by interrogators), as DoD Directive 3115.09 makes clear, not all the SERE techniques actually were banned or prohibited.

Last February, Secretary of Defense Public Affairs spokesman, Lt. Col. J. Todd Breasseale, reiterated to this author the military’s position that the Army Field Manual relies on humane and legal procedures.

“The United States is committed to ensuring that individuals detained in any armed conflict are treated humanely in all circumstances, consistent with U.S. treaty obligations, domestic law, and policy, whenever such individuals are in the custody or under the effective control of the U.S. government," Breasseale said. "The Army Field Manual does not authorize or condone the use of sleep manipulation or sensory deprivation."

While, when asked, Breasseale did not deny the presence of some SERE techniques in the Army Field Manual, he stated, "It's worth noting that nothing in Appendix M could be read or used in such a way as to defeat those generally applicable principles and guidelines."

Breasseale also referred to criteria in the manual that is meant to guide interrogators as to whether a particular interrogation "approach" is prohibited.

A SASC staffer, when asked about the loophole allowing SERE techniques in the Army Field Manual, told this author in an April 11 email, "We are comfortable that Appendix M of the Army Field Manual no longer permits the use of interrogation techniques that are cruel and inhuman, or are a violation of our obligations under international law."

But a leading human rights expert demurred. Leonard Rubenstein, who was co-author of a recent report by the Institute on Medicine as a Profession condemning the use of medical professionals in abusive interrogations, told this author, “Almost a decade after revelations of torture of detainees at Abu Ghraib, it is disturbing that some of the interrogation methods at the center of the abuse and condemned by an independent medical task force continued to be authorized at the highest level of the U.S. military.“

Psychologist Bradley Olson, former president of Psychologists for Social Responsibility, criticized the deceptive way DoD handled the supposed SERE ban.

“When it comes to torture, more than any other area, the devil is in the details,” Olson said. “Any attempt to pretend SERE techniques are prohibited while opening the door with Appendix M of the Army Field Manual is nothing but a contradiction, and a deceptive and dangerous one at that.”

Clapper's Role

In a link to the scandal over NSA surveillance, Directive 3115.09 was promulgated under the leadership of then-Undersecretary of Defense for Intelligence, James R. Clapper, Jr. Clapper, who is now Director of National Intelligence, famously lied to Congress in testimony in June 2013 about the extent of NSA spying on Americans.

According to former “master” SERE instructor Captain (ret.) Michael Kearns, who previously held high-ranking positions within the Air Force Headquarters Staff and Department of Defense, and who personally knew Bruce Jessen, one of the alleged proponents of the CIA's torture program, the format of the directive shows that back in 2008 Clapper’s office had “the initiating level of responsibility” for the directive.

Kearns said the policy promulgated was “enforced at the Deputy level.” The original version of the document itself was signed by Gordon England, then Acting Deputy Secretary of Defense.

But the policy on SERE techniques has not changed since the Bush presidency. The DoD’s most recent version of the directive, effective as of November 15, 2013, still carries the defining exception regarding SERE techniques used in the Army Field Manual.

Also posted at The Dissenter/FDL

Retired Gitmo Psychologist Makes the Short List for University Job: Students and Faculty Protest Ties to Torture

A number of students, faculty and staff at the University of Missouri (MU) are protesting the selection of a controversial psychologist linked to torture at the US detention facility at Guantanamo as a finalist for a top slot at Mizzou.

Dr. Larry James, who is currently dean of the professional psychology program at Wright State University in Ohio made the selection committee's short list for the position of division executive director at the university's College of Education.

According to the school prospectus, the division consists of nine graduate academic programs with 60 faculty and 29 professional staff members.

James is a retired Army psychologist who was senior psychologist on the Behavioral Science Consultation Team (BSCT) at Guantanamo in early 2003. In 2010, the Harvard Law School International Human Rights Clinic (IHRC) helped file a licensing complaint against James in Ohio, alleging numerous instances of misconduct and ethical violations related to his work at Guantanamo. (A similar, less detailed summary of the case against James was put together by Center for Constitutional Rights in relation to another licensing case in a different state.)

"Fixing Hell?"

James claims he was sent to Guantanamo to "fix" problems with interrogation abuse, and that, moreover, he succeeded in doing just that. His book, Fixing Hell: An Army Psychologist Confronts Abu Ghraib was published with a forward by well-known psychologist and former American Psychological Association president Philip Zimbardo, who praises James highly. (James was Chief Psychologist at Abu Ghraib in 2004.)

According to a February 5 article in the Missourian, James told a public forum called by MU's School of Education that he lacked the authority to stop the abuse he witnessed at Guantanamo. Nevertheless, he also has reportedly said, "The work I did there literally changed and outlawed all of those abusive tactics."

But a 2008 investigation by the Senate Armed Services Committee (SASC) totally contradicts James's contention. According to the SASC, during the period of James' first assignment at Guantanamo "the incidents [of abuse] occurring during the spring of 2003 [during James' tenure] signif[ied] a consistent problem at GTMO."

The "incidents" included cases of forced "compulsive exercise" and sexual humiliation. One interrogator performed a lap dance on a detainee "making sexual affiliated movements with her chest and pelvis while... speaking sexually oriented sentences."

Another "incident" involved a female interrogator wiping what the detainee was led to believe was menstrual blood on his face and forehead.

The report notes no evidence of any disciplinary action for these forms of physical and psychological abuse. A memo written at the time, "Historic Look at Inappropriate Interrogation Techniques Used at GTMO," cited interrogator use of yelling, loud music and strobe lights on detainees, while other documents note use of forced shaving, sensory deprivation and "implied death threats."

The anonymous author(s) of the "Historic Look" memo criticized those in charge of interrogations, and all but accused them of lying. "Despite these revelations by interrogators, the supervisory chain of command reports that these techniques are not used," the report said.

In his 2008 book, Fixing Hell, James said that he witnessed an interrogation, which is also described in the IHRC report: A detainee was "forced into pink women's panties, lipstick and a wig ... then pinned ... to the floor in an effort 'to outfit him with the matching pink nightgown.'"

James admittedly did not intervene to stop this interrogation, but instead poured himself a cup of coffee and, in his own words, "watched the episode play out, hoping it would take a better turn and not wanting to interfere without good reason, even if this was a terrible scene."

According to his narrative, James ultimately was forced to intervene "several minutes later" after he determined "Someone is gonna get hurt" (italics in original). Nevertheless, James never mentioned problems with the interrogation or the use of sexual humiliation to the interrogator, nor did he mention reporting or disciplining him.

According to a story by Associated Press, James told those who attended a public meeting in Columbia, Missouri on February 5, "I was sent to Guantanamo not to aid these CIA operatives, but to teach these young men and women, how do you sit down and interview someone without any abusive practices whatsoever.... That's what my mission was."

Protests

The selection of James as one of two finalists for the College of Education position has led to demonstrations on campus, news conferences, public meetings to defuse the controversy and a letter from more than 30 faculty and staff protesting any hiring of James.

The letter to University of Missouri Chancellor Brady Deaton states, "[James'] possible appointment raises unresolved and extremely controversial issues. An ethical and moral cloud hangs over Dr. James's work and reputation, and, if he assumed a high-profile post here, that cloud would hang over MU, generally."

On February 1, according to the student newspaper, The Maneater, "About 30 students and Columbia residents marched from the Islamic Center of Central Missouri to Hill Hall" on the MU campus to protest the selection of James as a semi-finalist for the position.

Mid-Missouri Fellowship of Reconciliation Coordinator Jeff Stack reportedly organized the protest.
"This decision is obscene to us as people of good will in our society," Stack told the crowd. "We are standing with the people who have been oppressed. We are not standing with the torturers."

The Barbara Peterson, director of strategic communications at MU's College of Education, told Truthout that College of Education Dean Daniel Clay had read James' book, Fixing Hell, and "all the documents" from the complaints against him.

According to the Associated Press, Clay stated James "was selected ... as a finalist because the search committee believed his leadership and management experiences aligned well with the minimum and desired qualifications for the position."

The Maneater quoted Clay's comments about the charges against James:

I felt strongly that in the interest of fairness and transparency that, um, you know, we can't discriminate against an individual based on unfounded allegations.... " As much as, uh, the thoughts of this turned my stomach and may turn yours, um, the reality is that he's not been, uh, indicted or found guilty of any ethics or, uh, legal or, uh, licensing board violations through this process.

James told AP that he was innocent of all the allegations, and called "the continued scrutiny of his military record 'an old story.'"

"Why do these people continue to try a decorated, disabled military veteran?" James said. "They cannot produce a patient, a prisoner, a government official or any official document that shows I have harmed any person."

Truthout asked the head of the School of Education Selection Committee, Dr. Michael Pullis, to respond to questions, but he referred all inquiries to Peterson. Pullis, who also is listed in the University of Missouri's Grants Manual Handbook as the official in charge of research grants, did not return further requests for comment.

Interestingly, MU is a recipient of millions of dollars of Department of Defense research grants, like a $5.3 million grant in November 2011 to evaluate combat casualty care.

On February 6, the St. Louis chapter of the Council on American-Islamic Relations (CAIR) held a news conference at MU's Student Center. According to an account in the Missourian, other groups present included "the MU Muslim Students Organization, the Mid-Missouri Fellowship of Reconciliation and concerned MU faculty members."

CAIR-St. Louis executive director, Faizan Syed, told the audience, "Mizzou has a high standard of ethics, and his possible hiring would put a black tarnish on that." He indicated CAIR intends to further organize faculty and students at other University of Missouri campuses across the state to oppose any James hiring.
According to the Missourian, "A CAIR petition opposing James' hiring had 289 signatures [as of Wednesday evening], but the organization will not present the petition to university officials until it reaches 1,000 signatures, Syed said."

James and the Rendition of Children

The IHRC report highlighted James' role as the leader of a military team sent to Afghanistan in early spring 2003 to render three young teenage boys from Bagram to Guantanamo. According to IHRC, James supervised the forceful and arbitrary detention of the Afghan boys, "transported thousands of miles away from their families and denied them access to counsel."

An April 2011 Truthout story described numerous media reports about the bereft parents, who were never informed by James or any US personnel that their children had been taken into custody, much less whisked off to Guantanamo.

The children told news media after their release they had not seen or heard from their families for many months after they were seized. They complained of homesickness during their incarceration. Though the UK Telegraph quoted one 15-year-old prisoner (some reports said he was 13) as praising the soldiers who watched over him; he also was critical of US authorities for not notifying his parents for ten months of his incarceration, even though he says he gave the Red Cross letters from the first months of his incarceration.
"They stole 14 months of my life and my family's life. I was entirely innocent - just a poor boy looking for work," the young teen said.

The families by most accounts were desperate to find out what happened to their children. No US authority or the Red Cross informed them about the fate of their sons for many months. James never raises the issue of the boys' parents in his book.

According to a February 2004 story in The Washington Post, Nayatullah, "an illiterate farmer of about 60," traveled to work sites throughout his area, asking if anyone had seen his son. No one had. "Finally I thought he must be dead," the father said.

Another boy's mother spoke through a translator to a Guardian UK correspondent about how she suffered not knowing her son's fate. She cried "every night thinking about my son."

"'I prayed to God, I asked, 'Where is my son?' she continued. 'He was just a boy, much too young to disappear on his own.'"

The family and other villagers looked high and low for the boy. Family members and friends went to Bagram, Logar and Gardez to ask the Americans about their son's whereabouts, but "no one knew about him." His father sold his land to acquire the several thousand dollars it took to fund the search for his son. It took the family seven months before they found out where their son was held.

At last, with no explanation or apology, the boys were released in January 2004. James had left Guantanamo after May 2003, but in his book, he wrote proudly of his work with the child detainees. "This is how my country handles prisoners," he said. "It's not all about abuse. We can take juveniles like that and send them home better than we found them."

As for the boys, for whom no evidence of terrorism was ever described or revealed, James still referred to them in his book as "far from innocent" and "teenage terrorists." Still, the psychologist in James also noted that the boys were terribly traumatized, ""not only terrified, but also disheveled and lost."

James wrote they were "the most fragile - psychologically, medically and academically - children I had ever met." Even so, he saw them also as a "case study" for his "softer" style of interrogation - "exactly the kind of prisoners I needed to test my philosophy on interrogation."

Asked about the actions of James in the matter of the rendition of the teenaged boys, and the failure to notify the parents, Dr. Pullis would not respond.

According to an Open Letter to the American Psychological Association by two psychologists - Trudy Bond and Steven Reisner - the APA dismissed without investigation a 2007 ethics complaint by Bond against James which highlighted the rendition of the boys and the failure to notify the parents.

James has also been the subject of license board complaints in Ohio and Louisiana. His BSCT associate, Dr. John Leso was the subject of a licensing complaint in New York State, and Dr. James Mitchell, one of the chief architects of the CIA's "enhanced interrogation techniques," faced a similar complaint in Texas. All of these complaints were dismissed by state boards for one reason or another.

Bond and Reisner have called for APA to conduct "a full review of the practices of the APA ethics office with regard to the investigation and adjudication of cases alleging torture, cruel, inhumane or degrading treatment or punishment."

Forgotten in all the controversy, Matthew Burns of the University of Minnesota, the other finalist for the division executive director position, quietly interviewed for the job last week on the MU campus. No decision on the final selection is expected until early March.

This story includes in part reporting that was used in a previous Truthout story.

Copyright, Truthout.org. Reprinted with permission (Original URL)

[Update, 2/15/13: According to an article in the Missourian, the University of Missouri decided to put a halt on the hiring of someone new to fill the division executive director job "at this time."

Here's what Dean Clay had to say about the decision, according to a copy of his letter to faculty and professional staff, reprinted in the Missourian:

After receiving the recommendations from the search committee regarding the search for a new division executive director (DED), along with input received from other stakeholders, I have decided to not fill the position at this time.

The article explains, "According to a memo from Education Dean Daniel Clay, Mike Pullis will serve as interim director when John Wedman retires Feb. 28. He will continue in that interim role until another individual is selected.

"Wedman will continue in a part-time role throughout the next year to help facilitate the transition."

It looks like both James and Burns are out, but this may also be a strategy to let the whole controversy die out, and perhaps James might be considered again. In any case, the issue of accountability for those who served in senior roles in interrogations or forming interrogation policy was certainly brought to the forefront once again by this controversy.]

Expose (Part 2) : Expanding the Investigation into SERE Torture

Originally posted at Firedoglake

The first installment of this three-part series on the origins of the Mitchell-Jessen torture program concentrated on the insufficiency of reducing our understanding of the spread of torture during the Bush administration to the interventions of just two men. This is essentially the way the story was presented in a 12 August New York Times article by Scott Shane, leaving the question unanswered: how did Mitchell and Jessen get involved in constructing an offensive torture program to begin with?

The documentary record demonstrates that Mitchell and Jessen were not alone in proposing that military survival and resistance (SERE) psychologists and trainers be used to lead interrogations of the flood of prisoners in the new "war on terror."

How could Mitchell and Jessen be seen as the prime proponents for the program when in December 2001, according to released materials in the Senate Armed Services Committee's report on prisoner abuse, the Chief of Staff of the Joint Personnel Recovery Agency (JPRA), Lt. Col. Dan Baumgartner, wrote to Richard Shiffrin, who worked for Jim Haynes in Don Rumsfeld's Office of Legal Counsel for the Defense Deparment:

Here's our spin on exploitation. If you need experts to facilitate this process, we stand ready to assist. There are not many in DoD outside of JPRA that have the level of expertise we do in exploitation and how to resist it.

[JPRA is the umbrella program for the different SERE programs organized by the various military services.]

While the New York Times article makes almost no attempt to link the Mitchell-Jessen episode to the larger spread of torture throughout the U.S. armed forces, or to describe the actual role of the CIA in fostering it, Mitchell and Jessen's influence is assumed. It is no surprise, and in fact is pointed out by Mr. Shane, that a decision by Attorney General Eric Holder whether to pursue criminal charges for the torture program is pending, and that the CIA contract psychologists are in the crosshairs of such a potential investigation. The latter make uneasy game for the Obama administration's insistence that those who believed they were acting in good faith upon legal permissions will not be prosecuted. No doubt, Mitchell and Jessen will pursue just such a defense.

SERE Psychologists Still Used in Special Ops Interrogations and Detention

Originally posted at Firedoglake

The great novelist William Faulkner famously wrote, "The past is never dead. It's not even past."

With all the controversy over the use of Survival, Evasion, Escape, Resistance, or SERE, psychologists in the interrogation of "high-value detainees" -- most recently detailed in a fascinating melange of an article in last Sunday's Washington Post -- everyone seems to assume that terrible chapter is a thing of the past. Recent documentation that has come to my attention suggests otherwise.

The reasons no one until now has noticed the current activities of SERE psychologists in offensive military operations are that, one, no one has cared to look, and two, a specious narrative ending in the Senate Armed Services Committee (SASC) report, "Treatment of Detainees in U.S. Custody," released last April, that appeared to conclude the episode was over. In its Executive Summary, the SASC concluded that, in September 2004, "JFCOM [U.S. Joint Forces Command] issued a formal policy stating that support to offensive interrogation operations was outside JPRA's charter." And that, presumably, was that.

JPRA, or Joint Personnel Recovery Agency, operates under U.S. Joint Forces Command, and is responsible for "for shaping and enabling the planning, preparation and coordination of personnel recovery for DoD." Its mission is subordinated to the preparation of U.S. military personnel for capture, and organizing "tactics, techniques and procedures (TTP) to assist the services in conducting joint recovery operations." The SERE program is supposed to train personnel for what to expect if they are captured, and prepare them for the onerous rigors of brutal captivity and torture.

The SASC report essentially tells the story of how JPRA and SERE went off the rails after 9/11. It presents a compelling documentary narrative of how Bush administration officials, eager to get information from prisoners newly captured in the "war on terror," for operational needs, or to manufacture intel to back up their plans to invade Iraq, or other nefarious purposes, found in JPRA/SERE an ambitious group of individuals eager to promote themselves and expand the work of their agency. Elsewhere, I have documented that some of these folk also were motivated by money.

Military Commissions -- "Broken Beyond Repair" (and other related stories)

July 9, 2009
Lt. Col. Darrel Vandeveld of the US Reserves, a former prosecutor in the Military Commissions at the Constitution, Civil Rights, and Civil Liberties Subcommittee of the House Committee on the Judiciary hearing on “Legal Issues Surrounding the Military Commissions System

I am here today to offer a single, straightforward message: the military commission system is broken beyond repair. Even good faith efforts at revision, such as legislation recently passed by the Senate Armed Services Committee, leave in place provisions that are illegal and unconstitutional, undermine defendants’ basic fair trial rights, create unacceptable risks of wrongful prosecution, place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United States, invite time consuming litigation before federal courts, and, most importantly, undermine the fundamental values of justice and liberty upon which this great country was founded....

The military commissions cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.

The quote is from Andy Worthington's excellent recent posting, "Former Insider Shatters Credibility of Military Commissions". Worthington covered earlier testimony before the Senate Armed Services Committee here.

Fortunately, Retired Rear Admiral John D. Hutson, who served as a Judge Advocate in the US Navy from 1973 to 2000, and was the Navy’s Judge Advocate General from 1997 to 2000, was on hand to cut through the administration’s fog, to put forward a stout defense of the abilities of the federal courts, and to deliver a withering dismissal of proposals to revive the Military Commissions (PDF).

Hutson said that although he was an “early and ardent supporter of military commissions,” the process created by the Bush administration “did not live up to the traditions” of the Uniform Code of Military Justice (the military’s own judicial system), and had become a “significant distraction for the military,” because “[p]reserving and ensuring justice in the United States is the primary mission of the Department of Justice, not the Department of Defense.”

But as a commenter on Worthington's Huffington Post article (reproduced by Andy here) noted, the SASC hearing came after language for the new military commissions law was already written.

CitizenLegislatorDC wrote:

Superb reporting, Andy.

You are absolutely right that floor debate on NEW Obama-blessed military commissions language — ALREADY PASSED by Carl Levin’s Armed Services Committee — is “imminent” in the Senate.

From Wednesday, July 8th:

“Mr. REID. I ask unanimous consent that on Monday, July 13, after the pledge, prayer, and any leader remarks, the Senate proceed to the consideration of Calendar No. 89, S. 1390, the Department of Defense Authorization bill.

The PRESIDING OFFICER. Without objection, it is so ordered.”

And from Thursday, July 9th:

“Mr. REID. …[Next] Monday, we will be in at 11 a.m. Senators Levin and McCain will begin managing the Defense Authorization bill… There are a lot of very big, important amendments on that bill.”

Perhaps Huffington Post Washington reporters (Hi, Dan Froomkin) could ask some questions:

1. WHO WROTE the complex new military commissions language? Levin’s Armed Services committee staffers, or the White House?

2. WHY was the public hearing on the new language held AFTER the committee had already adopted the language?

3. WHO will control the conference committee / negotiations merging the Senate (if its MC language remains) and House (H.R. 2647) defense bills? The President via Emanuel? Will those negotiations be secret, or publicly available?

4. WHY DID NO SENATOR OBJECT to consideration of this 2009 version of the 2006 Military Commissions Act?? Especially Pat Leahy, Chris Dodd, or Russ Feingold — who expressed disgust about the 2006 bill they ALL refused to filibuster, just before the Democrats regained Congress.

All of this comes in context recent scary statements also made at the SASC hearing (emphasis added):

The Obama administration said Tuesday it could continue to imprison non-U.S. citizens indefinitely even if they have been acquitted of terrorism charges by a U.S. military commission.

Jeh Johnson, the Defense Department's chief lawyer, told the Senate Armed Services Committee that releasing a detainee who has been tried and found not guilty was a policy decision that officials would make based on their estimate of whether the prisoner posed a future threat.

Recent statements by Obama administration officials or their surrogates, and by Obama himself, indicate that a turn for more real transparency and accountability may be in the offing. The most promising of such turnarounds comes from Obama himself, on the investigation of the Dasht-e-Leili massacre. A Newsweek article, and a piece by Scott Horton at the Daily Beast, maintain that Attorney General Holder is leaning towards prosecutions over torture. Already there are analysts pouring over what Holder might choose to investigate.

Besides the Obama statement, which represents a turnaround for official U.S. government policy on a single investigation, we are getting very mixed signals from the Obama administration. The next period will be one of accelerated struggle over the fight for accountability and justice, and against torture and a war-inclined military. Unreported here by me is also a struggle over economic justice, as the country sinks ever deeper into economic depression. At some point, these two struggles must link up, and then major change in this country will be in the offing.

No Accountability: Two Generals Who Enabled Torture

There's been plenty of news and journalistic investigation on the torture enablers George W. Bush, Dick Cheney, Donald Rumsfeld, John Yoo, Alberto Gonzalez, David Addington, and a host of other Bush Administration figures. The CIA, too, has come in for its share of investigation and scrutiny. But while the Senate Armed Services Committee conducted a months-long investigation and published last April a 200+ page report on Department of Defense abuse of prisoners, including torture, very little public scrutiny of culpable military officials has occurred.

The spotlight has mainly fallen on the activities of former SERE psychologists James Mitchell and Bruce Jessen, who together spearheaded the implementation of a prisoner "exploitation plan" that became known later as "enhanced interrogation techniques," and included a number of torture techniques, including isolation, sleep deprivation, stress positions, sensory deprivation and overload, forced nudity, waterboarding, and much more.

Recently, there was a spike of interest in the command responsibility Obama nominee for top military commander, Lt. Gen. Stanley McChrystal, might hold for the use of torture by Special Operations forces under his command in Iraq. But at the Senate Armed Services hearing for his nomination the other day, according to Spencer Ackerman, only Senator Levin even queried him on the subject, and no senator appeared opposed to his nomination.

But I want to look at the actions of two generals mentioned in the SASC report, "Inquiry on the Treatment of Detainees in U.S. Custody." Both of them are singled out for actions related to the approval of torture under their commands. Both had command responsibility for these actions, and one of them, Air Force Special Operations Brigadier General Lyle Koenig, was specifically singled out for obloquy (although not by name). The other senior officer, Brigadier General Thomas Moore, was the Director of Operations and Plans (J3) for Joint Forces Command (JFCOM).

Both officers dropped out of sight after 2004, or, that is, an extensive web search on their activities turned up practically nothing. It was on September 24, 2004 that JFCOM finally withdrew official approval for use of SERE-like interrogation techniques, at least by SERE personnel (or rather, through SERE's parent agency, Joint Personnel Recovery Agency, or JPRA). Earlier, BG Koenig and BG Moore had played crucial roles in the implementation of SERE torture, giving approval to the use of SERE techniques in interrogations.

The Role of Brigadier General Moore in the Origins of the SERE Torture Program

Sometime in late 2001, former SERE psychologist and contractor wannabe, James Mitchell, had received a copy of a purported Al Qaeda manual, which included instructions on how to withstand interrogation. According to an anonymous source who claims some knowledge of the individuals involved, and who has been credible on other matters pertaining to JPRA, Mitchell obtained the document from his superiors inside JPRA's Personnel Recovery Academy (PRA). The manual initially surfaced in Great Britain, and may have made its way to JPRA via the CIA.

According to the SASC report, when SERE psychologist Bruce Jessen sent his draft interrogation plan, packaged as a "Al Qaeda Resistance Contingency Training," to his superior, Colonel John "Randy" Moulton in February 2002, Moulton passed it on up the chain of command at JFCOM for approval and dissemination. Jessen was then selling PRA instructors as executing an "'exploitation oriented' approach. . . better than anyone." Moulton was enthusiastic. When, later, in August 2002, JPRA tops held a meeting to discuss "future JPRA support to [deleted word] actions to obtain actionable intelligence from Detained Unlawful Combatants," PRA was copied in on the email discussion.

Meanwhile, BG Moore was finessing the transfer of JPRA/SERE "expertise" to SOUTHCOM, the military command responsible for the new prison at Guanatanamo. Moore told the Operations Chief at SOUTHCOM that "JPRA was 'prepared to support [SOUTHCOM] in any potential collaboration.'" Presumably, it was Moore who had gotten Jessen's draft plan from Moulton. In any case, by even as early as mid-February 2002, Jessen's paper and Moulton's favorable recommendations were making the rounds from Moore's JFCOM to Joint Staff and various Combatant Commands, "including those with responsibility for Afghanistan, Iraq, and Guantanamo Bay." Things were moving fast.

(For those who like timelines, the spread of SERE's torture program to various sectors of the military preceded the interrogation of Abu Zubaydah, and was roughly contemporaneous with the Cheney-ordered waterboarding of Ibn Sheikh al-Libi. For those prone to speculate, the appearance of the Al Qaeda Resistance Manual in the hands of James Mitchell and the capture of al-Libi in mid-December 2001 seems awfully coincidental.)

Sometime in February 2002, the Defense Intelligence Agency asked JFCOM if they could get a "crash course" on interrogation for the next team headed out to SOUTHCOM (Guantanamo). The request went to BG Moore, who approved it. Jessen and another JPRA instructor were tasked with the seminar.

The presentation on detainee "exploitation" described phases of exploitation and included instruction on initial capture and handling, conducting interrogations, and long term exploitation... The exploitation presentation also included slides on "isolation and degradation," "sensory deprivation," "physiological pressures," and "psychological pressures... At SERE school, each of these terms has special meaning.

Another four months passed, and in July 2002, DoD's General Counsel office approached JPRA for information on SERE techniques, and in particular, waterboarding. Marcy Wheeler has done a superlative job in dissecting that particular episode, showing how this request was intricately tied up in the construction of the second Bybee memo,which would supposedly legitimate the "enhanced interrogation" torture techniques built out of the reverse-engineered SERE courses, and other assorted torture programs, such as the CIA's old KUBARK interrogation protocol. Before JPRA Chief of Staff, Lt. Col. Daniel Baumgartner, felt comfortable giving General Counsel Jim Haynes the information he requested, he first asked permission from Col. Moulton and Brigadier General Moore. Permission was granted. JFCOM had blessed the attempt by DoD to assist the Office of Legal Counsel attorneys in their illegitimate attempt to legally baptize the torture program.

A Special Operations General Submarines Pro-Geneva Intervention

BG Moore left his position as Director of Plans for JFCOM in August 2003, but not before he played a small but significant role in an event that also introduces us to our other general. That summer, the commander of a Special Mission Unit (SMU) Task Force in Iraq called up Col. Moulton at JPRA and asked for assistance on interrogations. The SMU was actually a Special Operations unit, famously known as Task Force 121, though it goes by other names as well (Task Force 6-26). A 2006 New York Times article describes the horrors of this TF's torture interrogations in their "Black Room" at Camp Nama.

Placards posted by soldiers at the detention area advised, "NO BLOOD, NO FOUL." The slogan, as one Defense Department official explained, reflected an adage adopted by Task Force 6-26: "If you don't make them bleed, they can't prosecute for it." According to Pentagon specialists who worked with the unit, prisoners at Camp Nama often disappeared into a detention black hole, barred from access to lawyers or relatives, and confined for weeks without charges. "The reality is, there were no rules there," another Pentagon official said.

The commander at Camp Nama and of TF 121 was Brigadier General Lyle Koenig. His name is never mentioned in the SASC report, but Senator Levin managed to get Col. Moulton to reveal the name during testimony before the SASC on September 25, 2008. Because of the classified nature of much of Special Operations activity, the anonymity, and therefore, the freedom from accountability or notoriety of these individuals is usually guaranteed. But not today, not here. (Koenig likely reported to his superior, Lt. Gen. McChrystal.)

On August 27, the request for JPRA/SERE support for Task Force 121 went to JFCOM's Operations Directorate (J3), whose director was BG Moore. Once again, the request was granted, and within a matter of days, JPRA sent off a team of two instructors and one JPRA contractor to the Black Room prison at Camp Nama. Interestingly, the contractor, Lenny Miller, was requested by name by the Special Operations team. It seems likely someone in TF 121 knew him personally, and Miller was possibly ex-SO.

When the JPRA team got there, dissension arose when an experienced interrogator and reserve officer, Lt. Col. Steven Kleinman, saw what was going on and tried to shut down the torture interrogations. This is a story I've told before. Suffice it to say that Kleinman was met with hostility by Special Forces personnel on site, and near-mutiny by his JPRA associates, who participated in abusive interrogations (torture sessions) even though Kleinman had forbid them to do so. Kleinman got on the phone with superiors back at JPRA (Col. Moulton), and with the commander at Nama (or whatever Special Forces site it was actually at -- it's just assumed it was Nama), BG Koenig.

According to Kleinman's testimony, Koenig heard Kleinman's assertions that the techniques being used violated the Geneva Conventions, and this, apparently, on more than one occasion. But somehow, nothing was ever done about it. The torture continued, and a manual of SERE-like techniques was written up for TF 121 use, a project in which Kleinman refused to participate (although he did recommend another JPRA associate for the job). Kleinman told the Senate Armed Services Committee:

And when I went back to the task force commander with concerns—but, I’ll tell you, Mr. Chairman, there was—it falls into a void. I would brief the task force commander very clearly, and he very clearly agreed with my assessment of it, but there was no orders ever issued—when I’d go over to the interrogation center, they never got—their senior interrogator, not—never got any guidance about that—

When the SASC got around to issuing its executive summary on its investigation, they wrote (emphasis added):

JPRA Commander Colonel Randy Moulton's authorization of SERE instructors, who had no experience in detainee interrogations, to actively participate in Task Force interrogations using SERE resistance training techniques was a serious failure in judgment. The Special Mission Unit Task Force commander's failure to order that SERE resistance training techniques not be used in detainee interrogations was a serious failure in leadership that led to the abuse of detainees in Task Force custody. Iraq is a Geneva Convention theater and techniques used in SERE school are inconsistent with the obligations of U.S. personnel under the Geneva Conventions.... Combatant Command requests for JPRA "offensive" interrogation support and U.S. Joint Forces Command (JFCOM) authorization of that support led to JPRA operating outside the agency's charter and beyond its expertise.

The Aftermath

In the end, the Colonel takes the heat (and rightly so), but those higher up the chain of command are protected by anonymity and wag-of-the-finger censure. On a more suspicious note, as I mentioned before, both Moore and Koenig drop off the map after 2004. After an assiduous search, I discovered that Moore assumed command of the 116th Air Control Wing in March 2007.

Koenig, on the other hand, disappears from our story entirely. Unlike Thomas Moore, Koenig is Special Ops, so he could be on a classified mission somewhere. One website, which I won't link to because of unconfirmed salacious material, claims he retired after a sex scandal, and that the Air Force has scrubbed his story from its historical files.

Whatever fortune pursued these two, I present them here as exemplary examples of how the military tops have gotten off scot-free over the torture scandal. Their names unknown. No cameras chasing them down, or interviews showing up on YouTube. The Pentagon is like a giant club, and if you have a high-status membership, it appears that you are immune from even the worst crimes, and the mainstream press has shown a tremendous aversion to doing much to track this aspect of the story down. Even Congress, mandated with oversight, and hamstrung by Executive Branch obstructionism, when it has managed to reveal part of the truth, manages to sweep the accountability of senior Pentagon officials under the rug of benign fulmination.

The entire secret world of military and intelligence operations, especially special forces operations, should be open to complete societal re-examination. It was precisely out of such a secretive world, in combination with a shadowy bizarro world of complementary contracting companies, that the EIT/SERE/torture program arose. It may have been ordered forth by Cheney and Bush, but the soldiers who stood ready to implement those commands continue on in their posts -- dissembling, unrepentant, unknown-- ready for the next go-round.

Also posted at Firedoglake

Fredman's Mea Culpa, the Army Field Manual, and the Istanbul Protocol

Either Jonathan Fredman or someone close to him or the CIA has leaked to The Washington Times a letter Fredman wrote to the Senate Armed Services Committee last Nov. 18, in response to SASC allegations based on a set of minutes the Committee produced as part of its investigation of Department of Defense treatment of prisoners. The minutes, which I have previously transcribed (see here for original document), cover an October 2, 2002 meeting of Guantanamo interrogation staff, psychologists, Defense Intelligence Agency, CIA, and other higher-up officers, and concerned the use of "harsh" interrogation techniques being considered at Guantanamo.

The SASC report, which concentrated on DoD-related misconduct, particularly as related to the use of an "offensive" program of interrogation and torture by SERE/JPRA personnel, also concluded the CIA, in the person of Mr. Fredman, who was chief legal counsel for the Counter-Terrorism Center at the time, gave his "advice to GTMO on applicable legal obligations was similar to the analysis of those obligations in OLC's first Bybee memo." (SERE refers to the Survival, Evasion, Resistance, Escape program, and JPRA to Joint Personnel Recovery Agency, SERE's parent agency at DoD.)

According to the meeting minutes, Mr. Fredman said that ''the language of the statutes is written vaguely ... Severe physical pain described as anything causing permanent damage to major organs or body parts. Mental torture [is] described as anything leading to permanent, profound damage to the senses or personality." Mr. Fredman said simply, "It is basically subject to perception. If the detainee dies you're doing it wrong."

Now, according to the Wash Times story (emphasis added):

In his six-page November letter, Mr. Fredman says the writer of the 2002 memo [the minutes] misconstrued enough of his points that the memo is unreliable....

Mr. Fredman said that he warned officials that the penalties for violating the U.S. anti-torture statute were severe and included the death penalty. He also emphasized that techniques in the Army Field Manual - which is currently in use - still may violate a nonbinding U.N. document on torture.

"I noted that the Istanbul Protocol of 1999 provides that even 'exposure to ambiguous situations or contradictory messages,' the use of 'solitary confinement,' and the use of coercion to induce an individual 'to betray someone placing them at risk of harm' all constitute torture. Under the Istanbul Protocol, therefore, it is not clear that the techniques described in the U.S. Army Field Manual on interrogation would be permitted," he wrote in his 2008 memo.

But the person taking notes at the 2002 meeting at Guantanamo Bay recorded Mr. Fredman's comment at the time as: "An example of a different perspective on torture is Turkey. In Turkey, they say that interrogation at all, or anything you do to[sic] that results in the subject betraying his comrades is torture."

Now, this all seems to me like more of the cover-your-ass game that is shifting into high gear in Washington, as the torture scandal gains more momentum, and more shocking details and documents are yet to be revealed. There is much more in the minutes that Fredman apparently disputes, we don't have the full letter in which we could assess his full argument. But from the WT story, it seems he defends CIA actions as going up to the limits of legality, with that limit set by Department of Justice attorneys.

I wonder if Fredman disputes this, from the Gitmo meeting minutes (emphasis added):

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

Here, Fredman is speaking of the fact that the Convention Against Torture's prohibition against torture did not receive the same legal reservation from the U.S. when CAT was signed and ratified. By tying a lesser form of torture, called "cruel, inhumane or degrading treatment," to U.S. Constitutional standards, as interpreted by domestic judicial precedent, the government tried to dilute the impact of CAT's prohibitions.

As an example, waterboarding and fake executions are "torture," while certain types of sleep deprivation and solitary confinement are, arguably, "cruel, inhumane, or degrading treatment," or arguably not, depending on what legal arguments and decisions some government lawyers can muster.

It's at this point that Fredman, in his Nov. 18, 2008 letter, makes his rather curious statement about the Army Field Manual and the Istanbul Protocol. As the Wikipedia article on the Protocol makes clear, it is not a treaty or a binding document, but "is intended to serve as a set of international guidelines for the assessment of persons who allege torture and ill treatment, for investigating cases of alleged torture, and for reporting such findings to the judiciary and any other investigative body." Besides guiding medical and psychological experts in the assessment torture victims, and "produce high-quality medical reports for submission to judicial and administrative bodies," it assists legal experts, per the International Rehabilitation Council for Torture Victims (IRCT), to:

• Obtain relevant, accurate and reliable statements from torture victims and witnesses so as to enable the use of such statements in legal proceedings against perpetrators
• Recover and preserve evidence related to the alleged torture
• Determine how, when and where the alleged torture occurred

It seems the CIA/CTC legal counsel is concerned about the gathering of evidence, and how it might be used someday in an international setting, if not in a U.S. court. I can't help but be satisfied on some level that Fredman has brought the Army Field Manual (AFM) issue back into focus, because the AFM has been the subject of some scrutiny by both Physicians for Human Rights and Center for Constitutional Rights (CCR), both of which found that it included interrogation techniques that violated domestic and international law.

I've made the AFM a focus of articles I've written, going back to October 2006. In January of this year, I published two articles at AlterNet (here and here) that focused on the use of torture in the AFM. Bmaz over at Emptywheel's site picked up the issue later in January, as did CCR. Since then, despite the interest of a few journalists, the issue has dropped out of view, and this despite the fact that President Obama made the Army Field Manual the centerpiece of his overhaul of interrogation policy earlier this year.

So, if Jonathan Fredman is worried about the applicability of interrogation procedures in the Army Field Manual, even if he mentions it as part of a mea culpa for CIA interrogation policies and cover-up of torture, published in The Washington Times, no less, then I'll take it as corroboration for what I and some others have been saying for some time.

And what are the procedures that has Fredman so concerned? They are concentrated mostly, though not entirely, in the manual's Appendix M, which describes a special interrogation "approach" (really a group of techniques) entitled "Separation." From my article on the AFM earlier this year:

What kind of procedures, which the manual avers cannot be used on regular prisoners of war (who are covered by the Geneva Convention Relative to the Treatment of Prisoners of War), make up this special interrogation "technique," separation? In fact, it includes the following: solitary confinement, perceptual or sensory deprivation, sleep deprivation, the induction of fear and hopelessness, and the likely use of sensory overload, temperature or environmental manipulation, and any number of other techniques permitted elsewhere in the AFM, such as "Emotional Pride Down." As at Guantanamo and at prisons in Iraq and Afghanistan, a "multidisciplinary" team implements the program, including a behavioral science consultant (likely a psychologist).

Since writing my original article, I also discovered that this current version (2006) of the AFM, supervised by Rumsfeld right-hand man, Stephen Cambone, changed the wording around the use of drugs in interrogations to prohibit "drugs that may induce lasting or permanent mental alteration or damage." Previously, the former AFM had prohibited "chemically induced psychosis." So, unless that psychosis is "lasting or permanent mental alteration or damage," it's presumably allowed in the current AFM. Any thoughts on that, President Obama?

Those interested can go back and read the section of John Yoo's first Bybee memo of Aug. 1, 2002 (not the OLC memo released a few weeks ago) that concerns the use of "mind-altering drugs." Oddly, Yoo appears to present an opinion that, while disallowing only the use of drugs that "penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality," and are calculated to that end -- a fairly stringent standard -- the AFM's allowance for use of drugs in interrogations, anything short of "lasting or permanent mental alteration or damage," seems to be even more permissive than even Yoo's opinion allowed.

Meanwhile, the Pentagon is presumably finishing up their Inspector General investigation on the drugging of detainees in DoD custody. However, it's not known if, when complete, the report will even be made public. A DoD member connected to that investigation did not return my request for more information.

Whether it's the drugs, the abusive interrogation techniques in Appendix M, or a number of others issues, Fredman appears concerned about keeping his own and the Agency's image clean and legally above water. I don't know how he can do that, but the play is partly to public and congressional opinion, and if he wants to throw the Army Field Manual as a sop to the anti-torture crowd, what does he care? That was always DoD and Rumsfeld's child, and with the drumbeats of scandal beating down upon JPRA, SERE and other DoD officialdom, CIA is hoping to keep out of the limelight, and maintain its monopoly of special treatment when it comes to use of interrogation techniques.

As Fredman is reported to have said at that October 2, 2002 meeting, "The CIA is not held to the same rules as the military." I'm sure CIA wants to keep it that way, but no one in Washington is completely in control of the shaping of the torture narrative anymore, and the scandal is far from playing itself out. It may even be just beginning.

Also posted at Firedoglake

PHR Responds to Release of Senate Torture Report

Yesterday, the Senate Armed Services Committee released their long-awaited full report, Inquiry into the Treatment of Detainees in U.S. Custody (large PDF file). In coming days I will be exploring its many revelations and mysteries. One thing the report does is validate my own earlier stories about the timeline of Bush administration forays into torture of "war on terror" prisoners beginning prior to the writing of any Office of Legal Counsel memorandum justifying it, with overtures by the Defense Department to the Joint Personnel Recovery Agency as early as December 2001.

The report also amply documents the use of medical personnel, including psychiatrists and psychologists, as "control officers" for the torture sessions. Additionally, it appears OLC cherry-picked the research efforts of military psychologists for the SERE program and used them to justify the use of horrific techniques, such as waterboarding.

Below is a YouTube video released by Physicians for Human Rights, Tortured Logic: How Medical Professionals Rationalized the Bush Administration's Torture Program. Nataniel Raymond, Director of PHR's Campaign Against Torture, responds to the release of the Senate Armed Forces Committee report on detainee abuse.

Sick Torture Memos Also Lie: A Closer Look at the Bybee Memo

Also posted at AlterNet

Reading the just released August 1, 2002 memo by John Yoo (reportedly ghosting for Jay Bybee, then Assistant Attorney General of the United States, and now an Appeals Court Judge for the Ninth Circuit), to John Rizzo, then Acting General Counsel for the CIA, on the interrogation of Abu Zubaydah, is a surreal experience. There is so much that is strange and awful in it, it's hard to know where to begin.

But one thing that struck me right off the bat was the similarity of the statistics presented in the early part of the memo with the statement of Dr. Jerald Ogrisseg, a psychologist with Joint Personnel Recovery Agency, United States Joint Forces Command, before the Senate Committee on Armed Services on June 17, 2008.

Let's review some of the relevant text.

Yoo/Bybee write, "This letter memorializes our previous oral advice, given on July 24, 2002, and July 26, 2002, that the proposed conduct would not violate this prohibition." The prohibition referred to is the U.S. torture statute, Section 2340A, Title 18 of the U.S. Code.

In his statement, Ogrisseg states that July 24, 2002 was the date of his memorandum “Psychological Effects of Resistance Training.” Dr. Ogrisseg was then still a psychologist working for the Survival, Evasion, Resistance, and Escape (SERE) at the United States Air Force Survival School at Fairchild Air Force Base, Washington. Only a few days after filing his report with the commander of Joint Personnel Recovery Agency, the parent Pentagon organization for all the military SERE programs, on July 29 he became a civilian SERE psychologist, with a number of various duties.

More from Dr. Ogrisseg:

Mr. Chairman, with regards to my July 2002 communications with then Lt Col Dan Baumgartner, the then Chief of Staff of JPRA, my recollection is that Lt Col Baumgartner called me directly, probably on the same day that I generated my 24 July 2002 memorandum that I referenced earlier. He indicated that he was getting asked “from above” about the psychological effects of resistance training. I had no idea who was asking Lt Col Baumgartner “from above” and did not ask him to clarify who was asking. I recall reminding Lt Col Baumgartner in general terms about program evaluation data I’d presented in May of 2002 at the SERE Psychology Conference. These data, which were collected on Air Force survival students at different points of time during training, indicated that training significantly improves students confidence in their ability to adhere to the Code of Conduct.

Why might Bybee, Rizzo, Yoo or others have been interested in Ogrisseg's study of SERE psychological effects? The initial portions of the Aug. 1, 2002 memo are concerned primarily with demonstrating that the techniques migrating into the interrogation arena from SERE training programs were not harmful, physiologically or psychologically, at least not in a way that would violate the law as construed by the OLC attorneys.

Despite the presence of a "SERE training psychologist" from the very beginning of Zubaydah's interrogation. Captured in March 2002, Zubaydah told the ICRC he was tortured from the time of capture. He was allegedly waterboarded by June 2002. Now, unhappy with their intel, CIA was planning to move into an "increased pressure phase" on Zubaydah. OLC notes in the memo that it is relying on information about Zubaydah and Yoo/Bybee warns Rizzo if the "facts in your possession [are] contrary to the facts outlined here", then their "advice would not necessarily apply."

Were they suspicious about the situation as reported by Rizzo? Emptywheel noticed the reticence. The memo states (emphasis added):

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods.....

Nowhere else, significantly, does Yoo feel the need to quote so selectively and in such detail about what CIA Acting Counsel John Rizzo had represented to him.

Meanwhile, this is what Dan Coleman--an FBI guy with deep knowledge of al Qaeda--had to say about AZ in Ron Suskind's One Percent Doctrine:

Meanwhile, Dan Coleman and other knowledgeable members of the tribe of al Qaeda hunters at CIA were reading Zubaydah's top secret diary and shaking their heads.

"This guy is insane, certifiable, split personality," Coleman told a top official at FBI after a few days reviewing the Zubaydah haul.

In any case, the OLC felt it had to make the SERE techniques look as innocuous as possible. The techniques to be approved included the "attention grasp", "walling," facial slaps, "facial hold," cramped confinement, sleep deprivation, "wall standing" (really slamming a prisoner against the wall violently), insects placed in a confinement box, waterboarding, and stress positions.

Bybee/Yoo reeled off a series of statistics to Rizzo:

Through your consultation with various individuals responsible for such [SERE] training, you have learned that these techniques have been used as elements of a course of conduct without any reported incident of prolonged mental harm.

The memo mentions that hardly any complaints re SERE training were made to Congress, that one SERE "official" (name redacted) had trained 10,000 students in over three and a half years with only two dropouts, and "rare" requests for psychological counseling. The memo continues:

You have consulted with [redacted] who has ten years of experience with SERE training [about two lines redacted] He stated that, during those ten years, insofar as he is aware none of the individuals who completed the program suffered any adverse mental health effects.....

Additionally, you received a memorandum from the [redacted, about one line] which you supplied to us. [Redacted] has experience with the use of all these procedures in a course of conduct, with the exception of the insect in the confinement box and the waterboard. This memorandum confirms that the use of these procedures has not resulted in any reported instances of prolonged mental harm, and very few instances of immediate and temporary adverse psychological responses during the training. Of the 26,829 students trained from 1992 through 2001 in the Air Force SERE training, 4.3 percent of those students had contact with psychology services. Of those 4.3 percent, only 3.2 percent were pulled from the program for psychological reasons. Thus, out of the students trained overall, only 0.14 percent were pulled from the program for psychological reasons.

Surely one can do amazing things with statistics, and these last statistics seem very similar to those Dr. Ogrisseg had found in his research, presented the same day as the first oral approval by OLC to CIA in the Zubaydah request.

From Dr. Ogrisseg's statement:

Then, I recall Lt Col Baumgartner asking me if I thought training was harmful to students. This question and my responses to it formed the basis of my 24 July 2002 memorandum to Lt Col Baumgartner, which is the best record of the conversation that we had. In general terms, I indicated that a very small percentage of students (4.3%) had adverse psychological reactions to our training, but we (the survival psychology staff) were able to re-motivate almost all of those having adverse reactions (96.8%) to complete training. Thus, less than .2% of the roughly 14,000 students were unable to complete training due to psychological problems which arose during training.

The numbers aren't an exact match -- except that 4.3 percent figure -- but close enough. Perhaps the original figures from his July 24 paper would fit even better, but then it's likely OLC was playing fast and loose with the figures. They are certainly close enough to assume with strong presumption that it was Ogrisseg's July 24 memorandum that was being quoted in this part of the memo.

Too bad they didn't look farther into what Ogrisseg then said he told Lt. Col. Baumgartner (emphasis added):

Finally, as indicated in my 24 July 2002 memorandum, Lt Col Baumgartner asked me if I’d never seen the waterboard used, and what I thought of it. I told him that I had seen it used while observing Navy training the previous year, and that I would never recommend using it in training. He asked me why and if I thought it was physically dangerous. I responded that I didn’t see anyone getting physically injured when I observed it, and as stated in my memorandum, the Navy was applying it to medically screened trainees with medical personnel immediately available to monitor and intervene if necessary. However, that wasn’t the point, as psychologically the waterboard produced capitulation and compliance with instructor demands 100% of the time. During debriefings following training, students who had experienced the waterboard expressed extreme avoidance attitudes such as a likelihood to further comply with any demands made of them if brought near the waterboard again. I told Lt Col Baumgartner that waterboarding was completely inconsistent with the stress inoculation paradigm of training that we used, and was more indicative of a practice that produces learned helplessness – a training result we tried strenuously to avoid. The final area I recall Lt Col Baumgartner asking me about were my thoughts on using the waterboard against the enemy. I asked [sic] responded by asking, “wouldn’t that be illegal?” He replied that some people were asking from above about the utility of using this technique against the enemy for the same reasons I wouldn’t use it in training. I replied that I wouldn’t go down that path because, aside from being illegal, it was a completely different arena that we in the Survival School didn’t know anything about. When we concluded the talk, Lt Col Baumgartner asked if I would write him a memo reflecting what we’d just discussed regarding the psychological effects of training so he could include it with other materials he was sending up. He also asked if I would comment on both the physical and psychological effects of the waterboard. I replied that I would, and drafted the memo.

Investigators or prosecutors might want to look at Dr. Ogrisseg's July 24 memorandum, because it appears to be prime evidence for OLC cherry-picking of results regarding the effects of the interrogation techniques in question. Yoo or Bybee or Rizzo, or all three, took the statistics that made their case, and ignored anything else.

We also know Bybee saw the July SERE memorandum from his own testimony before the Senate Armed Services Committee:

Before drafting the opinions, Mr. Yoo, the Deputy Assistant Attorney General for the OLC, had met with Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, to discuss the subjects he intended to address in the opinions. In testimony before the House Judiciary Committee, Mr. Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the memos were being drafted. When asked whether he had discussed SERE techniques with Judge Gonzales, Mr. Addington, Mr. Yoo, Mr. Rizzo or other senior administration lawyers, DoD General Counsel Jim Haynes testified that he “did discuss SERE techniques with other people in the administration.” NSC Legal Advisor John Bellinger said that “some of the legal analyses of proposed interrogation techniques that were prepared by the Department of Justice... did refer to the psychological effects of resistance training.”

(U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released.

The OLC and CIA also ignored a wealth of other published information about the effects of SERE "stress inoculation," such as the June 2000 article, "Assessment of Humans Experiencing Uncontrollable Stress: The SERE Course," in Special Warfare:

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.

Or how about this May 2000 article in Biological Psychiatry, Hormone profiles in humans experiencing military survival training?

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 at more psychological than physiological symptoms, one well-known 2001 study in the August 2001 edition of the American Journal of Psychiatry looked at dissociative symptoms, e.g., depersonalization, derealization, psychic or emotional numbing, general cognitive confusion (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.

96 percent! Well, these statistics are very different from those that appeared to say that less than 2% of SERE subjects had any significant psychological symptoms. It's all in how you frame it in the research world, and apparently in the legal world as well.

In summary, even an initial cursory look at the August 1, 2002 Bybee memo on the "Interrogation of Al Qaeda Operative" shows that the memos were written in bad faith, were meant to deceive, and utilized a memorandum by Jerald Ogrisseg that explicitly warned against using at least some of the techniques (waterboarding) that were approved by OLC.

I'm confident that other researchers will find much more wrong with the recently released OLC memos. Their extremely poor quality and their misrepresentations of medical and psychological information make them very hard to imagine using as the basis of "good faith" representations for those CIA interrogators for whom Attorney General Holder granted immunity, i.e., those "who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice..."

I suppose a lot rides now on how you define "authoritative legal advice."

Submitting Evidence to the Spanish Court on U.S. Torture Plans

Scott Horton has reported that "Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo." The others targeted are John Yoo, Jay Bybee, David Addington, Doug Feith and William Haynes.

I wrote a series on the issue of grounds for prosecution not too long ago. Now I'd like to help the Spanish prosecutors by supplying some basic evidence, courtesy of the Senate Armed Services Committee Report on "the Treatment of Detainees in U.S. Custody", released late last year.

The rationale for the prosecution is established international law, the same sort of law that led to Spain charging August Pinochet for war crimes, led by the same Spanish judge that referred the Bush crew for possible prosecution, Baltasar Garzon.

Setting the Stage

As one reads the following, please keep in mind that there are many current controversies concerning memos written by Bush's Office of Legal Counsel that were meant to legitimize "aggressive" interrogation techniques and treatment of "war on terror" prisoners. Tomorrow, in fact, is the deadline set by a U.S. court for the release of some of these memos still kept secret, including one dated August 1, 2002 by Jay Bybee (or ghost-written by John Yoo and/or David Addington) giving legal approval to a host of "enhanced interrogation" techniques, including reportedly waterboarding.

The evidence I supply here predates that portion of the timeline. Whether or not Obama releases these memos, there is plenty of evidence to proceed with prosecutions. Jason Leopold reported at The Public Record last Saturday that the Department of Justice told the judge in the ACLU suit to "release documents related to 92 interrogation videotapes that were destroyed by the CIA in 2005" that they would only give information on videotapes going back to August 2002. But, as Leopold explains, the FBI Inspector General already documented FBI agent reports of "near torture" interrogations of prisoner Abu Zubaydah as far back as May 2002.

And now, of course, we also have the release of a previously secret report by the International Committee of the Red Cross documenting torture by the CIA.

But all that in good time, for now I want to discuss Department of Defense and Defense Intelligence Agency collaboration with the Joint Personnel Recovery Agency in plotting "exploitation" practices to be used by U.S. interrogators that would draw upon the torture training model of JPRA's SERE program. SERE is administratively part of Joint Personnel Recovery Agency (JPRA) for the Department of Defense.

The timeline for this begins as early as December 2001, before, as the SASC report makes clear, Bush's presidential order, based on an opinion by Alberto Gonzales made as early as January 9, 2002, which "closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees." The pre-January 2002 timeline is crucial, as it stands outside, i.e., is prior to, all governmental attempts to cover their intent to torture, and to break international laws and treaties to which the government was signatory.

I humbly suggest that those with means forward what follows to the Spanish prosecutors, once the final announcement of warrants issued is made. The fact that we are still waiting, and the day has passed in Spain, and no warrants have been issued, speaks to the probable amount of strong political pressure from the U.S. exerted on Spain at this time. (For more details on how the struggle for prosecutions is playing out in the United States, including the role of Democratic Senators Feinstein and Rockefeller insisted that CIA torture suspects like Stephen Kappes, #2 at CIA now, were kept on in the Obama-Panetta reign, the better to stifle possible prosecutions of CIA officials -- such shutdown of prosecutions got a push from CIA Director, former Clinton staffer Leon Panetta last week -- see Glenn Greenwald's recent article.)

In what follows, I concentrate on a period at the very beginning of the Bush torture program's existence, as it came into being.

The Evidence

I have added in bold emphases where I felt appropriate, to guide the reader to the essential points. But I strongly recommend that those interested read not only the full quote herein, but the entire report.

(U) On February 7, 2002, President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections afforded by the Third Geneva Convention. The President’s order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees. While the President’s order stated that, as “a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions,” the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in U.S. custody.

(U) In December 2001, more than a month before the President signed his memorandum, the Department of Defense (DoD) General Counsel’s Office had already solicited information on detainee “exploitation” from the Joint Personnel Recovery Agency (JPRA), an agency whose expertise was in training American personnel to withstand interrogation techniques considered illegal under the Geneva Conventions.

(U) JPRA is the DoD agency that oversees military Survival Evasion Resistance and Escape (SERE) training. During the resistance phase of SERE training, U.S. military personnel are exposed to physical and psychological pressures (SERE techniques) designed to simulate conditions to which they might be subject if taken prisoner by enemies that did not abide by the Geneva Conventions. As one JPRA instructor explained, SERE training is “based on illegal exploitation (under the rules listed in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War) of prisoners over the last 50 years.” The techniques used in SERE school, based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy’s SERE school, it included waterboarding.

(U) Typically, those who play the part of interrogators in SERE school neither are trained interrogators nor are they qualified to be. These role players are not trained to obtain reliable intelligence information from detainees. Their job is to train our personnel to resist providing reliable information to our enemies. As the Deputy Commander for the Joint Forces Command (JFCOM), JPRA’s higher headquarters, put it: “the expertise of JPRA lies in training personnel how to respond and resist interrogations – not in how to conduct interrogations.” Given JPRA’s role and expertise, the request from the DoD General Counsel’s office was unusual. In fact, the Committee is not aware of any similar request prior to December 2001. But while it may have been the first, that was not the last time that a senior government official contacted JPRA for advice on using SERE methods offensively. In fact, the call from the DoD General Counsel’s office marked just the beginning of JPRA’s support of U.S. government interrogation efforts.

The Exhibits

The one document produced from the December 2001 contact -- a fax cover sheet from the Pentagon's Joint Personnel Recovery Agency (JPRA), sent from "Lt. Col. Dan Baumgartner" to "Mr. Richard Shiffrin," who worked for Haynes's in Rumsfeld's DoD General Council office -- introduces a theme of aggressive courting by JPRA/SERE personnel to take on the interrogations/exploitation task. We only have the fax cover sheet at present. I have been informed that the full document is not available as it concerns a different governmental entity, one that did not sign off on declassification, as yet. Perhaps when the full unredacted SASC report is released, supposedly very soon now, we will be able to add another exhibit.

Mr. Shiffrin --
Here's our spin on exploitation. If you need experts to facilitate this process, we stand ready to assist. There are not many in DoD outside of JPRA that have the level of expertise we do in exploitation and how to resist it.

"Mr. Shiffrin refers to Mr. Richard Shiffrin, who worked for William Haynes's in Donald Rumsfeld's DoD General Council office. Mr. Haynes is reportedly one of the officials the Spanish prosecutors intend to indict. Lt. Col. Dan Baumgartner was then head of JPRA.

In June 2008, Dan Baumgartner also gave testimony under oath to the Senate committee regarding the Dec. 2001 approach by DoD. From his testimony:

My recollection of my first communication with OGC relative to techniques was with Mr. Richard Shiffrin in July 2002. However, during my two interviews with Committee staff members last year I was shown documents that indicated I had some communication with Mr. Shiffrin related to this matter in approximately December 2001. Although I do not specifically recall Mr. Shiffrin’s request to the JPRA for information in late 2001, my previous interviews with Committee staff members and review of documents connected with Mr. Shiffrin’s December 2001 request have confirmed to me the JPRA, at that time, provided Mr. Shiffrin information related to this Committee’s inquiry. From what I reviewed last year with Committee staff members, the information involved the exploitation process and historical information on captivity and lessons learned.

The theme of JPRA promoting SERE expertise surfaces in Iraq a little less than two years after the first DoD approach. A September 9, 2003 email from Col. Randy Moulton, Commander of JPRA to Col. Mike Okita and a redacted addressee (could this be Maj. Gen. Geoffrey Miller, who, coming from his command in Guantanamo, on September 9 was just concluding his evaluation of interrogation procedures in Iraq) again makes the same point about JPRA "expertise".

There is a strong synergy between the fundamentals of both missions (resistance training and interrogation). Both rely heavily on environmental conditions, captivity psychology, and situation dominance and control. While I think this probably lies within DHS responsibility lines, recent history (to include discussions with DHS, USSOCOM, CIA) shows that no DoD entity has a firm grasp on any comprehensive approach to strategic debriefing/interrogation. Our subject matter experts (and certain Service SERE psychologist) have the most knowledge and depth within DoD on the captivity environment and exploitation.

I would remind my readers here that SERE exploitation famously includes the use of physical assault, stress positions, forced nudity, sleep deprivation, sensory overload, and other forms of physical and psychological torture.

Other Evidence: Re John Walker Lindh

Finally, I would like to suggest that there is at least one other piece of evidence related to this early use of torture and/or planning for torture. This concerns the report by Jesselyn Radack, a Justice Department attorney in 2001, tasked as a legal ethics advisor in DoJ's Professional Responsibility Advisory Office, with advising on the procedures surrounding the interrogation of the captured American John Walker Lindh in Afghanistan.

Radack wrote in 2007:

According to a secret document I obtained in June 2004, an Army intelligence officer "advised that before interviewing Lindh, instructions came from higher headquarters for him to coordinate with JSOTF [the Joint Special Operations Task Force] JAG officer. He was told . . . he could collect on anything criminal that was volunteered."

But Higher Headquarters told the intelligence office more than that. Rumsfeld's office told him not to handle Lindh with kid gloves. In a stunning revelation, the documents states: "The Admiral told him that the Secretary of Defense's counsel had authorized him to 'take the gloves off' and ask whatever he wanted." These instructions to get tough wth Lindh, contained in the document I have, are the earliest known evidence that the Bush Administration was willing to push the envelope on how far it could go to extract information from suspected terrorists.

Unfortunately, Ms. Radack does not supply the date for this document, or to whom it was addressed by the Army Intelligence officer in question. I'm sure that the Spanish court could obtain this document in full, if it so desired.

Concluding Remarks

Truly the evidence is massive for government malfeasance and crimes against humanity in the planning and use of torture and other cruel, inhumane, and degrading procedures against detainees held by both the Department of Defense and the CIA in the past eight years. Moreover, as documented by both myself and the Center for Constitutional Rights, a program that maintains illegal interrogation methods persists within current U.S. procedures, primarily, though not limited to, the use of techniques like isolation, partial sensory deprivation, and sleep deprivation, in Appendix M of the current Army Field Manual.

I congratulate the Spanish prosecutors in advance for taking on this crucial litigation, if in fact the warrants are finally issued. The U.S. is also bound by both domestic and international law to take up prosecutions, and it is a serious dereliction of law and duty of the highest order that this has not already occurred.

I hope either Spanish, or other, including U.S. prosecutors, take up the evidence I have presented here as telling documentation of U.S. official plans to subvert the Geneva Conventions and the UN Convention Against Torture, if not the U.S. War Crimes Act, and to have done so prior to the issuance of any executive office legal opinions that would have made it supposedly legitimate (an assertion to any legitimacy I also believe to be without merit).

U.S. readers of this should flood the DoJ offices with demands to initiate prosecutions forthwith. The rule of law is at stake. If the highest officials in the land can break the most serious laws with impunity, then there is no rule of law. There is only tyranny.