Obscurity Blankets Certain Anti-Torture Moves

Josh Gerstein at Politico has ably described the important shortcomings one finds in President Obama's Executive Orders issued yesterday to close Guantanamo and end torture. While the CIA is disallowed from using waterboarding and other "enhanced" torture techniques, and forced to adhere to the standards (flawed as they are) of the Army Field Manual; and while the CIA is forced now to close their secret black site prisons; and while Guantanamo itself is to be close "promptly... within a year", there are some troublesome problems remaining.

Not least is the problem with the Army Field Manual itself. Some former Bush administration figures and CIA types see the AFM as insufficient to guide their interrogation actions in the field. They want the ability to improvise their techniques to the given interrogation or situation. Many of these same people are implying that Obama's moves to close Guantanamo raises the spectre of the release of horrible terrorists in the homeland itself, who will attack American communities. In a column today, Glenn Greenwald dissects this fear-mongering campaign by the right.


Others, like myself, see the AFM as abusive in and of itself. The inclusion of Appendix M, and other procedures allowed by that document, means that use of techniques such as isolation, sleep deprivation, sensory deprivation, inducing fear and humiliation of prisoners is still allowed. These techniques, especially when used in combination, which is what the AFM suggests, certainly amount to cruel, inhumane and degrading behavior (in contradistinction to Geneva rules), if not torture itself.

Josh Gerstein emphasizes a now much-examined aspect of the language of the executive order on interrogations:

[The] order also created an interagency commission which will have six months to examine whether to create “additional or different guidance” for non-military agencies such as the CIA. One group that represents detainees, the Center for Constitutional Rights, deemed that an “escape hatch” to potentially allow enhanced interrogations in the future.

White House counsel Greg Craig told reporters such fears are misplaced. “This is not an invitation to bring back different techniques than those that are approved inside the Army Field Manual, but an invitation to this task force to make recommendations as to whether or not there should be a separate protocol that's more appropriate to the intelligence community,” he said....

“For now, they’re punting, saying they’ll comply with what’s in the Army manual…but at some point in the future this commission may revert to the executive” to recommend harsher techniques, said [Yale law school lecturer, and attorney for Guantanamo prisoner Ahmed Zuhair, Ramzi] Kassem, adding that he was concerned about how transparent the commission’s recommendations would be.

Gerstein has other caveats, as well. For one thing, the man ultimately in charge of Guantanamo in the last few years for Bush, Secretary of State Robert Gates, is also the man now in charge of re-examining whether conditions there meet "humane standards of confinement." His findings will be interesting for yet another reason. As Gerstein points out, Guantanamo prisoners still suffer from isolation and force feeding.

According to detainee lawyers, about two dozen inmates who refuse to eat as a form of protest are currently being force fed, and about 140 are in some form of solitary confinement....

As far as we know, the force feeding and solitary practices continued onto Obama’s watch. Craig dodged a question about the new president’s views on those issues. “I'm not going to get into the details,” Craig said.

As I and others have noted, Obama's executive orders say nothing about other U.S. prisoners held in Baghram (about 600), and the tens of thousands held in Iraq. Nor does the halt in the military commissions mean there won't be a return to some form of ersatz trial body in the near future.

That suggestion exasperates detainee lawyers like Kassem. “That would be a huge mistake, “ he said. “That system [is] set up to launder statements obtained through torture… What’s the point of getting rid of our offshore, improvised, sham, military tribunals in Cuba, only to recreate it here in the United States?”

The Center for Constitutional Rights has called for trying prisoners (who can be charged) in ordinary criminal courts.

The new administration must repatriate those who can be released safely, secure safe haven in the United States and other countries for those who cannot be repatriated safely, and prosecute in federal criminal courts those who should be prosecuted. Only 250 of 779 men remain in the prison camp. Most can be returned to their home countries through vigorous diplomacy. A smaller number need to be offered protection in the United States or third countries, many of whom have already begun to come forward to offer help to the new administration. There is no justification for continued detention without trial or the creation of special courts; such proposals would continue the human rights disaster rather than end it.

A number of political forces are circling around the torture interrogations issue. Senator Dianne Feinstein has apparently decided that Obama's executive order is not secure as policy, and declared she will go forward with legislation to "codify" the change to the Army Field Manual, making it less likely it can be overturned by further executive actions.

While Feinstein may see this as a progressive step, I see it as a danger, in that the abusive techniques left in the Army Field Manual will be perpetuated.

Much struggle still remains in the fight against torture. This next period will see a heightening of that struggle. One thing remains clear: we must not let the discussions and battles over it creep back into backroom corridors and out of public awareness. Hopefully, Obama's wish for greater openness, and his recent efforts to strengthen access to presidential records and government documents in general, through the Freedom of Information Act, will assist us in this effort. But the main tool of change will remain public awareness and public vigilance.

Keith Olberman on Mukasey, Daniel Levin & Waterboarding

Read this. Watch the video.

"Waterboarding is torture," Daniel Levin was to write. Daniel Levin was no theorist and no protester. He was no troublemaking politician. He was no table-pounding commentator. Daniel Levin was an astonishingly patriotic American and a brave man.

Brave not just with words or with stances, even in a dark time when that kind of bravery can usually be scared or bought off.

Charged, as you heard in the story from ABC News last Friday, with assessing the relative legality of the various nightmares in the Pandora's box that is the Orwell-worthy euphemism "Enhanced Interrogation," Mr. Levin decided that the simplest, and the most honest, way to evaluate them ... was to have them enacted upon himself.

Daniel Levin took himself to a military base and let himself be waterboarded....

MSNBC commentator goes on to call on Democratic Senators Feinstein and Schumer to recant their support for Bush lackey appointee, Michael Mukasey.

Thus Michael Mukasey, on the eve of the vote that will make him the high priest of the law of this land, cannot and must not answer a question, nor even hint that he has thought about a question, which merely concerns the theoretical definition of waterboarding as torture.

Because, Mr. Bush, in the seven years of your nightmare presidency, this whole string of events has been transformed.

From its beginning as the most neglectful protection ever of the lives and safety of the American people ... into the most efficient and cynical exploitation of tragedy for political gain in this country's history ... and, then, to the giddying prospect that you could do what the military fanatics did in Japan in the 1930s and remake a nation into a fascist state so efficient and so self-sustaining that the fascism would be nearly invisible.

But at last this frightful plan is ending with an unexpected crash, the shocking reality that no matter how thoroughly you might try to extinguish them, Mr. Bush, how thoroughly you tried to brand disagreement as disloyalty, Mr. Bush, there are still people like Daniel Levin who believe in the United States of America as true freedom, where we are better, not because of schemes and wars, but because of dreams and morals.

And ultimately these men, these patriots, will defeat you and they will return this country to its righteous standards, and to its rightful owners, the people.

Will Feinstein and Schumer Be Prosecuted for War Crimes?

Before I get to the Feinstein/Schumer imbroglio, let me first introduce Stephen Grey, the well-known author of Ghost Plane: The True Story of the CIA Rendition and Torture Program (read an excerpt at the link), and a reporter for Frontline's upcoming November 9 documentary, Extraordinary Rendition, on PBS. He has a new piece over at Salon.com that's worth reading, "The Extraordinary Truth about CIA Renditions".

Grey points out that as terrible as waterboarding and other forms of torture practiced by the CIA and their foreign partners are, there are some things that are even more terrible. Anyone who has read my articles on sensory deprivation and DDD-style torture will recognize the subject as addressed in Grey's Salon piece.

In the course of investigating the rendition program for the past four years, I have interviewed victims, CIA pilots, case officers who have actually carried out renditions, senior CIA officers who directed such operations and officials at the White House who were involved in authorizing such measures. All of these sources told me in private or on the record that repeated claims by the White House that we "don't send people to countries where they will be tortured" are plain lies....

Inside its own "black site" prisons, the CIA uses interrogation methods that -- while falling short of the medieval techniques used in the Arab world -- still, in the eyes of many within the agency, amount to straightforward torture. It is not only the physical methods like waterboarding (simulated drowning), but also refined techniques of sensory deprivation, that can cripple a prisoner psychologically.

One witness to such abuse was Bisher al-Rawi, a longtime British resident who was snatched by the CIA and held for more than four years, first in Afghanistan, then in Guantánamo Bay, Cuba. In a recent interview he told me about the "dark prison" where he was held in solitary confinement while being bombarded with strange music. It was freezing cold and so dark, he said, "you couldn't see the end of your nose." Physical torture, like the beatings he later endured, could be overcome, he said, but psychological torture "lives with you all your life."

The biggest news, of course, in the ongoing U.S. torture scandal is the capitulation of Senators Dianne Feinstein (D-CA) and Chuck Schumer (D-NY), members of the Senate Judiciary Committee, who announced at the end of last week that they would vote to recommend Bushite right-wing hack, Federal Judge Michael B. Mukasey, to the Senate for confirmation vote as the Attorney General nominee to replace the unlamented Alberto Gonzales. Feinstein has already famously pronounced her rationale for her vote: "Judge Mukasey is not Alberto R. Gonzales." Furthermore, she described Mukasey's replies to the committee's questions to be "crisp and to the point". Mukasey told her that waterboarding (an abhorrent torture technique with roots in medieval torture), with Feinstein quoting Mukasey here, seems

"...over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans....

"I do know... that waterboarding cannot be used by the United States military because its use by the military would be a clear violation of the Detainee Treatment Act (DTA). That is because waterboarding and certain other coercive interrogation techniques are expressly prohibited by the Army Field Manual on Intelligence Interrogation"....

Feinstein appears to want to compound her betrayal by rewriting history as well. Does the typical American's memory really only last a couple of weeks? Here's our "crisp" and "to the point" AJ nominee answering the questions of Senator Whitehouse, as reported in the New York Times (though the link is to my previous posting on Mukasey, cleverly enabling you to review my past writings on this issue):

"Is waterboarding constitutional?” he was asked by Senator Sheldon Whitehouse, a Rhode Island Democrat, in one of today’s sharpest exchanges.

"I don’t know what is involved in the technique,” Mr. Mukasey replied. “If waterboarding is torture, torture is not constitutional.”

Mr. Whitehouse described Mr. Mukasey’s response as a “massive hedge”....

“It either is or it isn’t,” the senator continued. “Waterboarding is the practice of putting somebody in a reclining position, tying them down, putting cloth over their faces, and then pouring water over them to simulate drowning. Is that constitutional?”

Mr. Mukasey repeated his answer: “If it amounts to torture, it is not constitutional.”

Mr. Whitehouse said he was “very disappointed in that answer — I think it is purely semantic.”

“I’m sorry,” Mr. Mukasey replied.

I guess Mukasey learned a lot about waterboarding after his encounter with Sen. Whitehorse. But Feinstein and Schumer have certainly learned nothing. Perhaps they are unaware that keeping the threat of waterboarding alive enhances fear in prisoners currently held by the CIA, and that such induction of fear is itself a form of torture. Could Feinstein and Schumer be prosecuted themselves someday as accessories to war crimes? It may not be out of the question. But then, I doubt anyone on their staff mentioned that to these quintessential cowards and sell-outs. (It goes without saying that Bush Administration officials deserve such prosecution.)

Here's some of the relevant law:

Torture or inhuman treatment of prisoners-of-war (Geneva III, arts. 17 & 87) or protected persons (Geneva IV, art. 32) are grave breaches of the Geneva Conventions, and are considered war crimes (Geneva III, art. 130; Geneva IV, art. 147). War crimes create an obligation on any state to prosecute the alleged perpetrators or turn them over to another state for prosecution. This obligation applies regardless of the nationality of the perpetrator, the nationality of the victim or the place where the act of torture or inhuman treatment was committed (Geneva III, art.129; Geneva IV, art. 146).

During the Vietnam War, anti-war protesters used to shout, "Hey hey, LBJ, how many kids did you kill today?" Will anti-war and anti-torture protesters soon be yelling at Lady DiFi, "Hey DiFi, Di Fi, how many will be waterboarded because of your lie?"

Feinstein Introduces Bill to Close Gitmo in One Year

Senator Diane Feinstein (D-CA) has introduced a bill to close the detention center at Guantanamo Bay Naval Base. The closure would be slated for one year after the passage of the bill -- a long time if you are a detainee being held in solitary confinement, or otherwise.

A recent Amnesty International report, quoted by Turkana in a diary over at Daily Kos on this issue, describes the current conditions for those imprisoned at "Gitmo":

The isolated prisoners are now spending 22 hours alone in a windowless cell with no natural light or fresh air. They exercise alone, often at night and can go for days without seeing daylight. Inmates have their meals alone in their cells, which are constantly lit, and they are observed 24 hours a day.

Senator Feinstein has previously supported both the Patriot Act and the incarceration of "war on terror" detainees at Guantanamo Bay. (Her bill says nothing about other U.S.-run prisons abroad that hold similar "enemy combatants", and also are similarly tarred with reports of torture.)

In her website statement, she declares:

“Guantanamo Bay has become a lightning rod for international condemnation.... This has greatly damaged the nation’s credibility around the world. Rather than make the United States safer, the image projected by this facility puts us at greater risk. The time has come to close it down.”

“I want to be clear. I am absolutely opposed to releasing any terrorists, Taliban fighters or anyone else held at Guantanamo who is committed to harming the United States.

“At the same time, we must recognize the sustained damage this facility is doing to our international standing. We are better served by closing this facility and transferring the detainees elsewhere.”

Feinstein's language, oddly, shows greater concern for the image of the United States than for the human beings broken by coercive interrogation, isolation, sensory deprivation, beatings, and other forms of torture. Her bill would call for a transfer of detainees to U.S. courts to be charged with crimes, or turned over to an international tribunal, or returned to their own or a third country, with "guarantees" of no torture if returned.

As an example of the kind of pressure being exerted upon the politicians of this country around the torture issue, Feinstein's bill represents a victory, albeit only one step in a long and arduous process. It may be the best bill that can be expected at this time out of this Congress. George W. Bush will be hard pressed to veto this bill, but sabotage it or veto it he will.

Or, will he go ahead and let Gitmo close, as a damage control operation, transferring the prisoners elsewhere in his gulag? It will be a symbolic defeat. But hell, they can handle symbolic defeats. They don't challenge the raw naked power of the military state.

I nevertheless cannot help but feel heartened by Feinstein's bill. Her website contains a detailed timeline that discusses the torture that has taken place at Guantanamo at the hands of U.S. agencies. I don't know of any other Congressional website that does that. Here's a sampling:

November 30, 2004: The New York Times reported that the International Committee of the Red Cross charged, in confidential reports to the United States government, that the American military had intentionally used psychological and sometimes physical coercion "tantamount to torture" on Guantanamo Bay detainees. The report said detainees were forced to endure "humiliating acts, solitary confinement, temperature extremes, use of forced positions." The story also revealed that a January 2003 confidential report by the International Committee of the Red Cross raised questions whether “psychological torture” had taken place at Guantanamo Bay.

December 21, 2004: The Washington Post reported that FBI agents, in memos spanning a two-year period, witnessed a variety of abuses at Guantanamo Bay. The newspaper reported that one FBI agent, on August 2, 2004, wrote: "On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves, and had been left there for 18 to 24 hours or more." In once case, the agent continued, "the detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night."

June 2005: An official Department of Defense report by Air Force Lieutenant General Randall Schmidt, launched in response to the FBI concerns, found three instances of “degrading and abusive treatment” in violation of Department of Defense guidelines. These included the use of dogs in interrogations, extended period of solitary confinement and sleep deprivation. The report concluded that these acts did not constitute torture or inhumane treatment, and that some of the abuses alleged to have been witnessed by the FBI could not be corroborated.

If you feel so inclined, call Sen. Feinstein's office and give her your support, and maybe you'll want to add that the legislation doesn't go far enough. Tell her you want the restoration of habeas corpus and the outlawing of all forms of psychological torture, and that you want those who authorized the torture held accountable. Tell her you want an end to secret renditions and the closing of the black prisons. Who knows? She may be inclined to listen (though I wouldn't hold my breath).

Washington, DC - (202) 224-3841
San Francisco - (415) 393-0707
Los Angeles - (310) 914-7300
San Diego - (619) 231-9712
Fresno - (559) 485-7430

(tip of the hat to Turkana)