Senate Hears Testimony on Banning Indefinite Detention of Americans

The following is a transcript (PDF) of testimony given by Dr. Scott Allen, MD at a February 29, 2012 hearing by the Senate Judiciary Committee. Dr. Allen is Associate Professor of Medicine, University of California, Riverside, and a Medical Advisor for Physicians for Human Rights.

The title of the hearing was “Due Process Guarantee Act: Banning Indefinite Detention of Americans.” Indefinite Detention is a form of torture, as Dr. Allen makes clear. The current policy of the Obama administration is to keep certain supposed "war on terror" detainees in indefinite detention, and there are hundreds of such prisoners held at Guantanamo, Bagram, and likely other US military prisons. (H/T to Ulana Odezynsky for sending me this material.)

I am a Clinical Associate Professor of Medicine at the University of California, Riverside and a medical advisor to Physicians for Human Rights. PHR is an independent, non-profit organization that uses medical and scientific expertise to investigate human rights violations and advocate for justice, accountability, and the health and dignity of all people. We are supported by the expertise and passion of health professionals and concerned citizens alike.

I am very grateful for the opportunity to submit my written testimony to the Senate Judiciary Committee in a hearing regarding the “Due Process Guarantee Act of 2011” and I would like to thank Chairman Senator Leahy and Senator Feinstein as well as the other Members of this Committee for holding this important and timely hearing.
I have worked in the field of correctional health for over fourteen years including full-time work in a state prison facility as both a primary care doctor and a medical director. In addition, I have also worked with refugee and immigrant populations in indefinite detention situations. Finally, I worked on and oversaw the report, Punishment Before Justice: Indefinite Detention, which was issued by Physicians for Human Rights in June 2011. This report, as well as my recent letter to the editor of the New York Times regarding the medical effects of indefinite detention, are attached as exhibits to my testimony.1

Indefinite detention refers to a situation in which the government places individuals in custody without informing them when—if ever—the detainee will be released. Indefinite detention is vastly different from imprisonment because the detainee does not know whether he will be charged with crimes, if he will receive a trial or hearing, when he will see his family again (if ever), or if he will ever be released. Yet, a person indefinitely detained is not serving a jail sentence. Naturally, these many attributes of indefinite detention create a heightened degree of uncertainty, unpredictability and uncontrollability over the elemental aspects of one’s life, causing severe harms in healthy individuals, independent of other aspects or conditions of detention.

The harmful psychological and physical effects of indefinite detention have been documented (varying by individual) to include:

-- Severe and chronic anxiety, acute fear, and dread;
-- Pathological levels of stress that damage the core psychological functions of the immune, cardiovascular, and central nervous system;
-- Hypertension;
-- Depression and suicide;
-- Post-traumatic stress disorder;
-- Dissociation, schizophrenia, and psychosis; and
-- Enduring personality changes.

Some individuals even manifest physical symptoms of the psychological trauma they are suffering such as breathing difficulties, physical pain and skin disorders. In cases where the individual who is subject to indefinite detention has also previously experienced trauma, such as war, torture, or abuse, the physical and psychological effects of indefinite detention are exacerbated.

Moreover, indefinite detention affects individuals beyond the detainee himself. When a loved one is indefinitely detained, families are separated. Consequently, parents, spouses and children can and have suffered similar feelings of uncertainty, unpredictability and uncontrollability leading to the physical and psychological effects described above.

As a health care professional, having seen first-hand the physical and psychological effects of indefinite detention, I can attest to the devastating harms an individual suffers. These are medical, documented harms that in some cases may rise to the level of severe abuse of individuals, or torture in extreme cases. As a health care professional, I would conclude that the medical effects of indefinite detention are both physical and psychological and they result in lasting severe harms to individuals. Therefore, as a physician with first-hand knowledge of the real harms caused by indefinite detention, I must recommend that indefinite detention not be utilized as a long-term solution for detaining individuals.

To that end, I would recommend that the United States government reject solutions to national security problems that permit or rely on indefinite detention and, until the time that indefinite detention is abolished as a matter of policy, the United States government should provide measures that mitigate the social, psychological, and physical harms such detention causes among detainees. Further, if indefinite detention of individuals is allowed to continue, I would recommend permitting non-governmental, independent medical and psychological experts to evaluate the mental and physical health of detainees.

Again, I thank you for this opportunity to provide my testimony on this issue of extreme importance to the American people and Congress and am available to answer any questions or further discuss these issues.

1 The full report is also available at https://s3.amazonaws.com/PHR_Reports/indefinite-detention-june2011.pdf.

Birth of a Whitewash: Who Testified at Leahy Commission Torture Hearings?

There has been plenty of controversy on the issue of conducting a Congressional or independent investigation into the interrogations policy and torture activities of the Bush administration over the last seven or eight years.

One of the primary worries by those who oppose a "truth and reconciliation"-style investigation is that it would preempt possible prosecutions, or at worst, be a cover-up of some of the worst crimes involved. Those who favor such an investigation believe that is only with a broad investigation will all the information really be unearthed.

The hearing today by the Senate Judiciary Committee -- "Getting to the Truth Through a Nonpartisan Commission of Inquiry" -- chaired by Senator Patrick Leahy (D-VT), was called to explore options for investigating past torture and counter-terrorism policy. The committee called six witnesses, some for, some against such an investigation. But a close look at the backgrounds and affiliations of even most of the pro-investigation witnesses should give us deep pause, and ask what kind of commission are we being set up for?

The witnesses included some out and out conservatives, or individuals dubious about the investigatory process -- men like David B. Rivkin, Jr., who opposes the investigation, and supported most of Bush's program, such as suspension of Geneva rights for "enemy combatants", and Jeremy Rabkin, who wrote, After Guantanamo: The War Over the Geneva Convention" in a collection of essays edited by cold warrior ex-CIA chief R. James Woolsey.

The other four witnesses were a mixed bag. They appeared to believe the Bush administration had gone way overboard after 9/11, at least when it came to treatment of prisoners. Three of the four witnesses have background that make them dubious reporters, and argue, as well, that they may have another agenda they wish to advance. These three -- Thomas Pickering, Vice Admiral Lee Gunn (Ret.), and John J. Farmer, Jr. -- all have either gone on the record with far-right views on the "war on terror", or have associations with actions by the government that themselves are associated with torture.

Let me provide what evidence I have collected in a relatively short period of time. It is not definitive, but I think enough to give serious pause to consider just how this most important discussion is proceeding at the congressional level.

Our Man in El Salvador: Death Squads, Rigged Elections, and Iran/Contra

Thomas Pickering has a history as a reliable agent for murderous U.S. foreign policy. This is from an op-ed at the Council of Foreign Relations (all emphases in this posting are added, unless otherwise noted):

Thomas Pickering, who was ambassador to El Salvador from 1983 to 1985, says that, while it was U.S. policy to publicly denounce the death squads, their “kind of tactics [were] tacitly supported by the U.S. government, even though [they] were freelance.” Other analysts are more blunt. “We did back the guys who went after the bad guys,” says Lawrence Korb, assistant secretary of defense from 1981 to 1985. “And [we] defined ‘bad guys’ pretty broadly.” According to William Leo Grande, a professor at American University and the author of a major study of the conflict, Washington knew that the intelligence it passed to the Salvadoran government eventually made its way to the paramilitaries. “We did support the guys who organized them,” he says, “so it’s a little precious to deny that we supported the death squads themselves.”

Pickering also got caught up in a dispute between mob political cliques in the U.S. and El Salvador, when Sen. Jesse Helms, who was aligned with his protege the torturer Roberto D’Aubuisson and his ARENA party, spilled the means on a CIA election manipulation to put their man, Jose Napoleon Duarte in as president, during a raging civil war with tens of thousands targeted by death squads and torturers.

As a result, enraged D’Aubuisson supporters plotted to kill U.S. Ambassador Thomas Pickering. Mr. Helms sent a letter to these partisans that said:

Ambassador Pickering has been the leader of the death squads against democracy. Mr. Pickering has used his diplomatic capacity to strangle liberty during the night.

Senator Helms was censured by the Senate for conducting his own foreign policy. Luckily, Ambassador Pickering escaped murder.

Thomas Pickering started his career working in the intelligence field. “Between 1959 and 1961, Ambassador Pickering served in the Bureau of Intelligence and Research of the State Department…” (State Dept bio)

Note that in a 1988 New York Times article, Pickering was fingered as one of the Iran-Contra enablers, passing along appeals for weapons from the Contras to Oliver North, and never reporting it, despite the fact such assistance was supposedly illegal at the time. Pickering was then ambassador to El Salvador, and up to his ears in death squads, CIA electoral manipulations, and a counter-insurgency bombing campaign that killed thousands and made refugees of many thousands more.

Pickering and his ilk are not men to be trusted. They are brought in here for one reason only: they are “fixers”, like the guys the mob brings in to clean up the mess after the hit’s been done. Nell, whose initial comment at Emptywheel's live blogging diary at Firedoglake spurred this entry of mine, put it this way:

Leahy has lined up respected establishment operatives (aka reliable tools of imperial foreign policy) to push for a commission of inquiry. I actually agree with most of Pickering’s testimony, especially about leaving the door open for prosecution and therefore being very sparing with grants of limited immunity.

But Pickering’s presence, particularly as he appeared today to represent the outermost limit of opinion among this crop of witnesses, signals to me as strongly as anything can that this commission will play the same role as “plucky reformer” Napoleon Duarte’s “fragile democracy” played in El Salvador during Amb. Pickering’s stint there: a crowd-pleasing facade created to hide the continuation of the same poisonous policy.

More of the Usual Suspects: Gunn

Vice Admiral (ret.) Lee Gunn is presented to the committee as President of the American Security Project. He also is president of their Institute of Public Research at CNA Corporation, a federally funded research and development center in Washington, D.C. [CNA stands for Center for Naval Analyses, as I discovered elsewhere; it doesn't say so at their website.] IPR-CNA works on nice and reform-like programs, though a large part of IPR's work is consultation on "homeland security operations and strategic policy development." That would include papers done under Gunn's division, such as "SMART Policing":

As part of the recent paradigm shift towards counter-terrorism, police are adopting intelligence led policing strategies (sometimes referred to as “information-led policing”) which have sought to use information analysis and intelligence more strategically to guide leadership decision making and law enforcement operations. And more recently, police departments in the higher risk urban areas have also begun to make more extensive use of electronic surveillance....

Many jurisdictions are already employing some SMART policing approaches, such as the use of new technologies for more efficient data collection and display, information sharing, and data analysis. SMART policing programs can be grown in law enforcement agencies across the country through a comprehensive, federally-driven, national technical assistance program.

This kind of "policing", highlighted by pervasive use of cameras, ethnic profiling, data mining, attacks upon the Fourth Amendment, and "Electronic surveillance technologies that employ software capable of identifying behavioral anomalies," among other police state techniques.

But Gunn's association with CNA bespeaks even more troubling associations. Down the hall from IPR, so to speak, at CNA’s Stability and Development Program, part of CNA Strategic Studies, we find some interesting connections with major counterinsurgency operations in Iraq and Afghanistan.

Dr. Carter Malkasian, formerly assigned to the I Marine Expeditionary Force (I MEF) as an advisor on counterinsurgency, directs the Stability and Development Program, which focuses on counterinsurgency, irregular warfare, and post-conflict reconstruction. The team provides objective, analytic perspectives—grounded in an understanding of actual operations—to support decision-makers charged with planning and conducting security and development operations.

The range of issues includes: insurgency and counterinsurgency, ethnic conflict, development of indigenous forces, economic development of war-torn states, “Phase IV” reconstruction efforts, and the establishment of political institutions.

The team most recently spent time on the ground in Afghanistan advising Provincial Reconstruction Teams (PRTs).

What are PRTs?

The Provincial Reconstruction Teams (PRTs) are “non-kinetic” operations carried out jointly by small number of lightly armed military personnel and civilian staff from the diplomatic community and development agencies to promote governance, security and reconstruction throughout the post-9.11 Afghanistan and Iraq. PRTs can be characterized in two ways: one as a miniature of multidimensional peacekeeping operations or “peacekeeping-lite,”and the other as an extended civil-military operation center (CMOC) or “super-CMOC.”

And the PRTs have some questionable activities, beyond humanitarian work:

The PRTs have critics in the international aid community. A recent analysis from the think tank Overseas Development Institute, said “In Afghanistan, Provincial Reconstruction Teams (PRTs) were perceived as blurring the lines between humanitarian and military action.”

Amnesty International ran across some shady operations conducted by some of the PRTs that involved torture:

Amnesty International is concerned that ISAF troops from New Zealand operating in Afghanistan and particularly the Provincial Reconstruction Team (PRT) could be involved in transferring detainees to Afghan security forces.

While New Zealand was not one of those countries surveyed in the AI report, NZ is a participant in the ISAF and has a Provincial Reconstruction Team in Afghanistan.... “The NZ PRT (107 personnel as of October 2007) Bamyan is tasked with maintaining security in Bamyan Province. It does this by conducting frequent presence patrols throughout the province.”, [sic] may apprehend and transfer detainees,” says Amnesty International Spokesperson Gary Reese.

In March this year, Amnesty International raised our concerns to Hon Phil Goff, Minister of Defence, that the 50-70 detainees handed over to U.S. forces by the NZ SAS could be subject to torture at Guantanamo Bay or other secret detention centres in a third country (through the US practice of ‘extraordinary rendition’).

What happens to those transferred from PRTs operating in Afghanistan to Afghan security forces? They are almost certainly tortured.

Scores of NDS detainees, some arrested arbitrarily and detained incommunicado, that is without access to defence lawyers, families, courts or other outside bodies, have been subjected to torture and other ill-treatment, including being whipped, exposed to extreme cold, deprived of food and shocked with electrical probes.

Saying all this does not mean that Vice Adm. Gunn is somehow personally involved in torture. But his connection with an agency that is directly involved in activities advising military activities that themselves have been associated with torture makes him a dubious witness, to be sure. At least someone on the Judiciary Committee should have asked him about such links. No one did.

In any case, what we are witnessing is a corralling of all establishment criticism of the interrogations torture, and other crimes of the Bush administration by individuals highly invested in maintaining the legitimacy of U.S. military policy as a whole, including its pacification operations in Iraq and Afghanistan. It is precisely these operations that involved the mass round-up of prisoners, thousands of whom were and many still remain imprisoned, and an untold number tortured.

More of the Usual Suspects: Farmer

The last of today's witnesses to be examined here is John Farmer, Jr.

Why is this guy testifying? Because he knew how to keep criticism of Giuliani toned down at the 9/11 commission? What’s his view on imprisoning “terrorists”? Does anyone remember his op-ed in the New York Times last year? In the name of reform of how “terrorists” have been treated by the criminal courts, and understanding how the Bushistas twisted criminal law into something unlawful, Farmer doesn’t propose an end to that only. No, he wants to create a new system of preventive detention!

A closer look at the Padilla case and other terrorism prosecutions reveals, to the contrary, that the continued reliance on our criminal justice system as the main domestic weapon in the struggle against terrorism fails on two counts: it threatens not only to leave our nation unprotected but also to corrupt the foundations of the criminal law itself.

The use of the criminal law in terrorist cases has never been an easy fit. After all, the primary purpose of counterterrorism is the prevention of future acts, while the criminal law has developed primarily to punish conduct that has already occurred. The question raised by the Padilla trial is whether a case about an attack that never actually happened can be tried in the criminal courts without transforming the nature of that system itself.

The answer is no. In order to make the criminal justice system an effective weapon, we have already started extending the reach of criminal statutes to conduct that has never before been punishable as a crime….

It is time to stop pretending that the criminal justice system is a viable primary option for preventing terrorism. The Bush administration should propose and Congress should pass legislation allowing for preventive detention in future terrorism cases like that of Mr. Padilla. It is the best way to ensure both the integrity of our criminal law and the safety of our nation.

Rivkin, Rabkin, Pickering, Nunn, and Frederick A.O. Schwarz, Jr. Besides Schwarz, who works with the distinguished legal civil liberties-oriented Brennan Center for Justice, this was a stacked list of witnesses, with the majority supporters of the "war on terror" and "homeland security" schemes that are anti-democratic. In the case of Pickering, we have some implicated in collaboration with those who committed exactly the same types of crimes the commission is supposed to address. What a farce! I cannot think of words of base calumny strong enough.

If this is the direction this commission is headed, then it should be boycotted. While I can support the direction an organization like Physicians for Human Rights wants to take such a torture investigation (see their letter to Sen. Leahy, PDF, from earlier today), I think that establishment human rights organization and liberals in general underestimate the entrenched nature of the powers who allowed torture to take place, and have great investment in maintaining the inviolability of the right of the state to use coercive force.

My case study for this -- and it's starting to look less like a cause, than now, sadly, a case study -- is the indifference with which the political elite treated the exposure of the Army Field Manual as riddled with abusive interrogation techniques, amounting to torture. Outside of a handful of blogs and commentators, and a few human rights organizations, including PHR and Center for Constitutional Rights, the issue has gone dead in the water. No one in Congress seems interested. They'd much rather listen to Thomas Pickering, or even David Rivkin.

I recommend my readers go to CCR's webpage on Prosecutions and Accountability and follow the action steps there. They include a letter that can be signed to Sen. Leahy:

We are also calling upon Sen. Patrick Leahy, who is holding a hearing on March 4 of the Senate Judiciary Committee to discuss a “truth commission” to investigate the crimes of the Bush administration, to support prosecutions for those government officials who violated the law. Sign a letter to Sen. Leahy and the Judiciary Committee calling for them to support prosecutions, and to oppose any immunity for the architects of these torture programs.