Dr. Alan Kazdin Replies

Dr. Kazdin has written a letter in reply to Drs. Wessells and Arrigo (see yesterday's post). Dr. Soldz has posted it at his website. Here it is in its entirety:

Dear Drs. Arrigo and Wessells,

Thank you for your letter regarding the formation of the APA Presidential Advisory Group on the Implementation of the Petition Resolution. I, too, am optimistic that the work of this group will help to unite the organization and enable us to move forward to implement this new policy, which was approved by a vote of our membership.

Over the past few weeks, we have received several recommendations regarding the group process - all that it ought to and ought not to include. In response to your words of caution, I can assure you that the process has been, and will continue to be, open and transparent. While I appreciate your suggestion of an independent monitor, I have invited all three original sponsors of the petition for the very purpose of ensuring that the views and interests of those bringing the petition forward are well represented in the group’s discussions.

I would be grateful if you would forward this response to those you copied on your email.

Thank you.

Best wishes,
Alan

Alan E. Kazdin, Ph.D., ABPP
President, American Psychological Association
John M. Musser Professor of Psychology and Child Psychiatry
Department of Psychology
Yale University
PO Box 208205
New Haven, CT 06520-8205

I haven't much time for full analysis, but Dr. Kazdin's rejection of the recommendation of an independent monitor is disappointing. Such a monitor would not be under the same pressures as the "three original sponsors of the petition" on the Advisory Group. Observation and participation are different operational functions, as organizational theory might tell us. They should be staffed by different individuals, as the work tasks involved are not the same.

Nor do I see the process of choosing the members of the Advisory Group to have been "open and transparent." But then, I am an outsider (at this point), looking mainly at the lateness of the appointments to the Group, and pondering over the wisdom of these assignments, as well as the relative weights of the interests represented.

On the other hand, Dr. Kazdin seems friendly and willing to listen to alternative voices. Others are more optimistic than I, who tends to be somewhat of a pessimist (though I would rather say "realist"). Hence, I cannot shake the idea that the process is stacked with the idea of minimizing the impact of the non-participation resolution. We shall soon know, as the Advisory Group is set to meet beginning tomorrow. Again, I wish all participants luck, and hope that the spirit of the resolution, meant to curtail psychologists from participating in abusive settings that fail to observe international standards of human rights, is obeyed, and with it, the intent of the majority of APA's membership.

PENS Redux? Arrigo & Wessells' Letter to APA President Kazdin

Stephen Soldz, whose blog is a treasure chest of information about the fight against torture, has kindly reproduced a letter from Jean Maria Arrigo and Mike Wessells, two former members of the American Psychological Association's Presidential Task Force on Psychological Ethics and National Security (PENS), to current APA President Alan Kazdin.

As was noted in an earlier article here, aimed to address ethical and practical problems arising through the use of psychologists in the U.S. "war on terror," PENS was stacked with military psychologists, and gave a quick and pressured rubber stamp to the use of psychologists at military and CIA interrogation sites, despite reports of abuse, leading to the resignation or apostasy from the panel of leading non-military members. Two of those former members wrote the following letter to APA's current president, concerned about APA's approach to constituting a new "Advisory Board" to implement a new policy on psychologist non-participation in national security interrogations, and at sites "where persons are held outside of, or in violation of, either International Law (e.g., the UN Convention Against Torture and the Geneva Conventions) or the US Constitution (where appropriate)." This new policy was passed by referendum of the membership two months ago, after a petition campaign led by key APA dissidents.

The new advisory board is supposed to meet this weekend to decide how to implement the petition's resolution. For more analysis of the background of the situation, see this earlier article. The letter from Arrigo and Wessells to Dr. Kazdin is reproduced below (as originally published at Psyche, Science and Society):

Dear President Kazdin:

We, Jean Maria Arrigo and Mike Wessells, are writing in response to news of your formation of the Presidential Advisory Group on the Implementation of the Petition Resolution. With this committee, the APA has a new opportunity to unite the organization by effectively implementing the policies widely adopted by vote of the membership.

Yet we also see that setting up the organizational structure, charge, and guidelines for communication and transparency warrants caution. As members of the 2005 Presidential Task Force on Psychological Ethics in National Security (PENS), we wish to warn of certain procedural irregularities in the PENS process that are potential pitfalls for successful implementation of the referendum. These irregularities led to a fraudulent process that undermined the ostensible purpose of PENS: to develop ethical guidelines for psychologists in national security interrogations.

It appears to us that the fraudulent PENS process was the root cause of many of the APA’s difficulties in the past three years because it prevented true deliberation. As much as anything else, it deprived thoughtful, honest advocates for psychologists’ involvement in interrogations of the opportunity to present a credible case for their position.

Many of the stakeholders to the PENS process are involved in the Implementation process, directly or indirectly. It is therefore crucial that the actual Implementation process — as opposed to the public face of the process — be transparent, fair, and deliberative. To illustrate both the subtlety and the gravity of violations in the PENS procedures, and the potential for violations in the Implementation process, we offer four examples from among a dozen that equally de-legitimized the PENS effort. All of these can be substantiated. Not one has been publicly acknowledged by APA authorities. There were other— in some ways more dramatic and egregious—violations of independent, democratic process, but the following examples particularly signal risks to the work of the new Advisory Committee.

1. As psychologists we are aware that majority influence plays a great role in group decision-making. The undisclosed “observers” to the PENS task force meeting included: the Assistant Director of Social, Behavioral, and Educational Sciences for the White House Office of Science and Technology Policy; the Executive Director for APA Science Policy; a second APA Science Policy staff member; a former National Security Agency psychologist and former director of the Navy Internship Program; and the Director of the APA Practice Directorate. At least the first four of these five had been closely involved in securing defense-related funding for APA programs. And all received the PENS listserv communications. Their presence and involvement was inconsistent with what anyone would understand by the “public face” of the PENS task force.

2. An APA Board liaison to the PENS task force was the first to suggest that the Director of the APA Practice Directorate attend the PENS meeting as an “observer,” because, as he wrote on the pre-meeting PENS listserv, “this TF has direct implications for practice.” In the morning of the first day of the June 26-29, 2005 task force meeting, it was this same Board liaison who proposed confidentiality of the task force proceedings, although no sensitive issues had yet arisen. This subtle intrusion by the APA Board exceeds the official role of Board liaison.

3. The Director of the APA Practice Directorate indeed attended, but not as mere observer. This Director articulated the task force mission as “putting out the fires” of controversy at APA, rather than resolving complex questions in psychological ethics. With cooperation from the task force chair (who was simultaneously vice-chair of the APA Ethics Committee), the Director steered the task force toward policy to be made in extreme haste, secrecy, with only an appearance of unanimity, and with no concrete examples to substantiate the policy.

Further the Director of the Practice Directorate was married to a BSCT psychologist who had served at Guantánamo, one of the theaters of concern to the task force. His spouse was closely involved with Army Surgeon General Kiley and, along with two other task force members, was part of the almost immediate military review of the PENS report with General Kiley. Other task force members employed by the military and intelligence agencies and APA task force organizers were surely aware of these profound conflicts of interest, although the Director disclosed no such influential relationships at the meeting.

4. As is now publicly known, one military member of the task force had been involved in the so-called “reverse engineering” of the Survival Evasion Resistance and Escape (SERE) training program to produce abusive techniques for terror suspects and prisoners of war. At least one of his colleagues on the task force was certainly aware of his severe conflict of interest. Further, four of the task force members served in the chains of command that had been accused of abuses.

The PENS process generated cadres of fierce critics of APA policy, whose researches eventually exposed many of the specific instances and mechanisms of fraud. These same cadres of APA members, international psychologists, human rights scholars, and journalists have their eyes on the Implementation process.

To fulfill the promise of your Presidential Advisory Group on the Implementation of the Petition Resolution, and because the PENS process so deeply damaged trust in APA institutional process, we think three things are needed: (a) a fair and transparent process, (b) committee participants who are free from overt conflicts of interest (whether disclosed or undisclosed), and (c) a reputable, independent monitor. We do not at all question your sincerity. This is not the point. Nevertheless, however far down the path you feel you are to a fair and transparent process, we urge you to arrange for a reputable, independent monitor. Such a practice will finally help put out the fires of controversy at APA over psychological ethics in interrogations.

Thank you very much for your time in considering our letter.

Sincerely,

Jean Maria Arrigo, PhD
Michael Wessells, PhD

One final note: Drs. Arrigo and Wessells apparently cc'd the letter to other PENS Task Force members, the Coalition for an Ethical Psychology, Psychologists for Social Responsibility, and the International Rehabilitation Council for Torture Victims. I'd say that those wishing to hold APA and like institutions to something like transparency and ethical process will be much more vigilant after the experience of the Bush years.

APA Advisory Group Examines New Interrogations Policy

This weekend, a little-known group will meet in Washington, D.C. It's the American Psychological Association's Presidential Advisory Group on the Implementation of the Petition Resolution. The petition resolution, for those who may not have known or remembered, was the fruit of a successful campaign by anti-torture activists within APA to change that organization's policy of allowing psychologists to participate in interrogations at "war on terror" sites like Guantanamo or Baghram, which had been implicated in use of torture and human rights violations, like the use of indefinite detentions.

APA officialdom had long argued that the presence of psychologists protected the prisoners from abuse. Unfortunately for them, a wealth of documentation proved that in fact psychologists had been implicated in the organization and implementation of U.S. torture.

Subsequently, the membership voted to pass a resolution banning psychologists from Guantanamo and similar military sites, and participating in any way in the military and clandestine interrogations of prisoners "where persons are held outside of, or in violation of, either International Law (e.g., the UN Convention Against Torture and the Geneva Conventions) or the US Constitution (where appropriate)."

APA officially welcomed the new policy, while indicating that it was not enforceable, and that even as policy, the resolution could not become effective until the APA's next annual meeting in August 2009. This set off a storm of protest, and APA suggested the new policy could be implemented even sooner, after some consideration at a meeting of its Council of Representatives this coming February.

Additionally, as a good faith gesture, last month APA President Alan E. Kazdin, Ph.D., sent a letter to George W. Bush, "informing him of a significant change in the association's policy that limits the roles of psychologists in certain unlawful detention settings where the human rights of detainees are violated." (The text of the letter can be found here.) Similar letters were to be sent to Defense Secretary Robert Gates, CIA Director Michael Hayden, and to key congressional committees, including the Armed Services, Judiciary, and Intelligence committees.

Meanwhile, Dr. Kazdin announced he would appoint an advisory panel to discuss how the resolution would be implemented, once it became "official" policy. The organization wrangled over the composition of the panel, and only recently announced its composition. Today, APA Senior Policy Adviser Ellen G. Garrison announced the membership of the new advisory panel in a letter to APA's Council of Representatives. It includes three members of the group who organized the successful petition campaign -- Dan Aalbers, Ruth Fallenbaum, and Brad Olson -- and eight others.

From Dr. Garrison's letter (no link):

Dr. Kazdin's appointments to the group are being made after an open nominations process and include the original petitioners, as well as members of the APA Council of Representatives and Board of Directors. The advisory group members reflect the broad range of APA constituent groups with interest and expertise related to the petition resolution and its implementation.

The charge to the advisory group is to identify issues in need of clarification related to the petition resolution and to suggest ways that this might be accomplished, as well as to propose possible options to implement the resolution for Council to consider.

Members of the advisory group are:

Elena J. Eisman, Ed.D., Chair
Allen M. Omoto, Ph.D.
Daniel Aalbers
Walter E. Penk, Ph.D.
Armand R. Cerbone, Ph.D.
William J. Strickland, Ph.D.
Ruth H.A. Fallenbaum, Ph.D.
Michael Wertheimer, Ph.D.
Corann Okorodudu, Ed.D.
Elizabeth C. Wiggins, J.D., Ph.D.
Bradley David Olson, Ph.D.

Advise and Consent

The eight non-opposition members of the panel represent a heterogeneous group, but have in common that most have served in some institutional capacity within APA. Some of the members were known opponents of the petition campaign, like William Strickland, a member of APA's Division of Military Psychology. Elizabeth Wiggins helped co-author, along with Strickland and another APA stalwart, APA officialdom's apologia for their insufficient 2007 interrogations resolution in the APA's house organ, the Monitor.

One advisory panel participant, Walter Penk, has a long association with the Veterans Administration. Other participants were involved in earlier iterations of APA policy on torture and interrogations, and opposed an earlier proposed moratorium against psychologists at sites like Guantanamo.

One of the stranger appointments to the panel is eminence gris, Michael Wertheimer. This retired University of Colorado professor is the son of famous Gestalt psychologist Max Wertheimer. He is known to the UFO conspiracy crowd as a member of 1950s Air Force Condon Project on the existence of UFOs. He was also a co-editor of a book on perception in 1958 that included a number of articles about sensory deprivation, including some written by known members of the government's sensory deprivation research project, which was part of its mind control program at the time. While it would be a huge stretch to connect Michael Wertheimer to anything nefarious re the government, given his background (albeit it was many years ago), it is an odd choice to include him this panel. One wonders how he fits the criteria of being part of "the broad range of APA constituent groups with interest and expertise related to the petition resolution and its implementation."

A final strangeness inhabits this committee: its timeframe and its method of making decisions. The panel has just two days to make its deliberations and form a policy. What's the rush? Could it have anything to do with the fact that the organization awaits the results of it presidential election, and one of the candidates is Steven Reisner, a prominent supporter of the petition resolution and strongly associated with a change in APA's interrogations policy? Reisner won a plurality of votes during the nomination process earlier this year.

And just how will the decisions in the group be made? By majority vote? By consensus? Either way, it's looking like APA has stacked the panel with bureaucratic placeholders. As always in these instances, I wouldn't mind looking like I have egg on my face and be surprised with the outcome.

Still, it seems there are a lot of questions about this group's composition and work. The decision making process whereby the panel was selected has been anything but transparent. I count a majority as anti-referendum to begin with.

The Expectations Game

All expectations must take into account the larger political picture, as the GOP administration has been kicked out by a decisive victory by now-President-elect Obama. Already the potential closing of Guantanamo has returned to the headlines. Newsweek magazine has published an article describing various obstacles to any quick closure of Guantanamo by an Obama administration. Meanwhile, at least one member of the Obama advisory team has floated an idea of constituting a new judicial "hybrid" system to replace Bush's military commissions, but keep "enemy combatant" prisoners out of the regular justice system. Within the same day this idea was floated, Obama's transition team denied any such idea was in the works, or any specific idea, for that matter, as they await the final assembly of their national security team.

(For more on re predictions of Obama's possible intelligence policies and attitude towards interrogations and changing Bush's policies, see StanMO's interesting Daily Kos diary, Andrew Sullivan Asks: Obama's Policies "Torture Lite"?)

The APA is mostly concerned with keeping the flow of funding to psychologist research, and an open pipeline to government jobs for the profession. That means you will never find the organization straying too far from the policies of its governmental godfathers. The winds are blowing differently out of Washington these days, though the exact direction is yet to be determined, particularly on national security issues. Obama has not been one to challenge the national security establishment, though he has differed with them on a tactical level, e.g., the use of military commissions and overt torture.

One watches the upcoming work of the APA Presidential Advisory Group and wishes them good luck. We will see if the invitation to former opponents to participate in the proceedings is an attempt at real and open change within APA, an attempt at cooptation of a feisty opposition, or a repeat of the PENS fiasco from 2006, when that "Presidential Task Force on Psychological Ethics and National Security" was stacked with military psychologists, and gave a quick and pressured rubber stamp to the use of psychologists at military and CIA interrogation sites, despite reports of abuse, leading to the resignation or apostasy from the panel of leading non-military members. (I should add, I have great faith in the proponents of the new interrogations policy included in the Advisory Group's membership. They will not be easy to co-opt, should that be APA's intention.)

One thing is for sure: the impact of this small group meeting will have reverberations throughout Washington, as the fate of Bush's torture program -- itself descended from decades of U.S. use of coercive interrogation, especially by the CIA -- is debated and decided, for better or worse.

NO to Proposal for New Terrorist Courts (Updated)

It's with a great deal of hope that Barack Obama will be inaugurated President next January. In regards to the Bush Administration's policy on torture and indefinite detention, as represented by the ongoing incarceration of hundreds of prisoners at Guantanamo Naval Base, Obama announced in August 2007: "As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions."

Meanwhile, a new Associated Press story reports that Obama's advisers are working on a plan to close Guantanamo prison, release some of the prisoners, and send the rest to trial in the United States. This would be a welcome act indeed, and the ACLU has published a full-page ad in the New York Times (see link first paragraph), asking Obama to close Guantanamo by executive order on the first day of his presidency.

Unfortunately, the new plan carries a significant flaw: Obama is proposing the creation of "a new legal system to handle the classified information inherent in some of the most sensitive cases." [Please read update below]

The new courts appear to be the brainchild of Harvard law professor Laurence Tribe, who described them as "some sort of hybrid" legal system, involving military commissions that would "both be and appear to be fundamentally fair in light of the circumstances." Tribe says we'll just have to trust Obama on this, and give him "the benefit of the doubt."

No, Professor Tribe, we do not have to do that, and we won't do that. A spokesman for the ACLU responded to the new plan for a post-Gitmo judicial system:

"I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake," Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees, said Monday. "We do not need a new court system. The last eight years are a testament to the problems of trying to create new systems."

"A Quick Dirty System"

The ACLU has had more to say on this subject, most recently in an interview by Glenn Greenwald of Salon.com with Anthony Romero, the executive director of the American Civil Liberties Union, earlier today (apparently before the AP story broke). Greenwald asked Romero if the transfer from Guantanamo of "several hundred highly complex cases to the federal judiciary" would administratively overwhelm the courts. Romero responded:

I don't want a quick dirty system that dispenses with people's rights in a too expedient and a too quick a manner.

The fact is, the government is going to have to bear the burden of proof. Can you try these individuals in a criminal court, or a military commission under the Uniform Code of Military Justice, and come forward with the proof that will stand up in courts of law that are governed by the Constitution, and if it can't, you've got to release them. That's our system.

Greenwald then asked about the argument that "the rules have to be different for people engaged in acts of war." Evidence typically cannot easily be gathered at the scene; the prosecution often relies on classified information and secret witnesses; the burden of proof seems inappropriate in such cases, as compared to domestic prosecution of criminals. Romero replied in some detail, as these matters are not typically known or discussed among non-attorneys, and certainly not as sound-bites on either the liberal or the conservative news shows:

We understand that these cases may represent different legal theories than the thug on the street who picked up my wallet, right? We have procedures in place to deal with them. We have the Classified Information Procedures Act, which allows us to put evidence before judges and make sure that if they're classified or if they represent issues on national security they're not broadcast to the public, therefore jeopardizing national security further. We have ways of making sure that witnesses are protected in coming forward, so that they're not open to further attacks by other terrorists who might be still out there.

And I think it was a great report, that wasn't put out by us - I would have loved to have put it out - it was put out by a group of former prosecutors and former military officials, Human Rights First, that said that our existing criminal justice system, and our existing UCMJ system, the Uniform Code of Military Justice system, is perfectly equipped to deal with these types of cases. We've done it before. In fact, we've done it even in the Bush administration; we have Zacarias Moussaoui and Padilla prosecuted under federal criminal courts. And what we need is to make sure we have a neutral set of rules.

As news of the hybrid courts plan begins to filter through the media and blogosphere, initial reaction has been negative. Spencer Ackerman described his reaction in today's Washington Independent, while noting that this "plan" has all the earmarks of a "leaked" proposal:

The AP’s reporting suggests Obama is considering a “hybrid process” between the military commissions and the full process enjoyed by U.S. citizens. If there’s anything the military commissions process should have taught, it’s that reinventing the legal system doesn’t work, as demonstrated by the bevy of military lawyers who have resigned in protest of the commissions.

The concern, stripped of euphemism, is that the evidentiary basis for many trials of Guantanamo detainees — including, in many cases, torture — would never be admissible in any court worthy of the name. That’s the Bush administration’s legacy. But it can’t be the basis for cheapening our legal system.

The Return of Mukasey's "National Security Courts"?

What struck me about Obama/Tribe's plan for a "hybrid legal system" was its similarity to the old proposal by soon-to-be-former Attorney General (and stooge) Michael Mukasey to establish "national security courts". Where Anthony Romero looks at the Moussaoui and Padilla prosecutions and sees the sufficient functioning of the current legal system, Mukasey, in an article published in the Wall Street Journal in August 2007, describes a situation where "current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism."

Mukasey's argument for a new special kind of court in which to try "terrorists" sounds suspiciously like what is known thus far about the Obama/Tribe proposal:

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means....

At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.

John C. Coughenour, the federal judge who presided over "the trial of Ahmed Ressam, the confessed Algerian terrorist, for his role in a plot to bomb Los Angeles International Airport" critiqued Mukasey's proposal in an op-ed in the New York Times in November 2007:

It is regrettable that so often when our courts are evaluated for their ability to handle terrorism cases, the Constitution is conceived as mere solicitude for criminals. Implicit in this misguided notion is that society’s somehow charitable view toward “ordinary” crimes of murder or rape ought not to extend to terrorists. In fact, the criminal procedure required under our Constitution reflects the reality that law enforcement is not perfect, and that questions of guilt necessarily precede questions of mercy....

Judge Mukasey raises a legitimate concern about whether open judicial proceedings may compromise intelligence gathering. But courts are equipped to meet this challenge. The Classified Information Procedures Act provides a set of rules for criminal cases...

Certainly this system cannot entirely prevent any misuse of information; the mere fact of an arrest may tell a story we’d rather our enemies not hear. But our system provides a sensible way to protect national security while maintaining some degree of transparency.

Hope and Foreboding

I and others have noted that the weakest link in Obama's claim of liberal program is his adherence to the language and intent of Bush's "War on Terror." It was not clear during the campaign if this was Obama's nod to the center of American politics, or a real conviction. The first signs coming from the Obama camp are still mixed, but there is a real wind of foreboding. President-elect Obama has made clear signs he plans to close Guantanamo. I would like to hear that he will also withdraw the executive order by Bush that allows the CIA to practice "enhanced" techniques of interrogation, i.e., to practice psychological torture.

But this first trial balloon from the Obama camp on torture and terrorism is redolent of the rejected policies of Bush's Justice Department. I do not expect Obama to listen to the complaints of one little blogger, but I do expect the progressive community to speak out and speak out forcefully against any and all attempts to restrict constitutional rights, whether such attempt comes from the left or the right.

Update: Well, this is what comes with writing a "breaking" diary. The Obama team has announced that Obama is not considering any kind of new court for detainees. Per Talk Left:

"....There is absolutely no truth to reports that a decision has been made about how and where to try the detainees, and there is no process in place to make that decision until his national security and legal teams are assembled," said Denis McDonough, a senior foreign policy adviser for the transition team, in a statement.

This is certainly great news. I can't know why the leak was made about the "new" courts. In any case, I am letting the article stand as a discussion of the general issues, and removed Obama's name from the title.

As Jeralyn at TalkLeft put it:

There's only one right answer here. Close Guantanamo on day 1 and try the detainees either in U.S. criminal courts or military courts operating under the Uniform Code of Military Justice.

Please note, Meteor Blades has written contemporaneously with this piece an excellent front page diary at Daily Kos covering much of this subject matter. He makes some additional points about closing ALL the torture prisons, which I neglected to make in this piece.

U.S. Citizen Found Guilty of Torture in Liberia

Charles McArthur Emmanuel, aka "Chuckie" Taylor Jr., son of infamous former Liberian dictator Charles Taylor, and former head of that his father's Anti-Terrorism Unit, nicknamed the "Demon Forces," was convicted last Thursday by a Miami court in a first test of a 1994 U.S. law "that makes it a crime for US citizens to commit torture overseas." As the Guardian put it:

It was considered a test case of the principle that human rights abusers are accountable for crimes regardless of where they are brought to book....

During the trial, witnesses said Emmanuel, known as Chuckie in Liberia, stood by and laughed as soldiers forced prisoners to play "stone football", kicking large stones until their bare feet were bruised and bleeding. One witness described having flaming plastic melted onto his skin; another said soldiers cut his genitals.

According to the Times Online, the FBI and the U.S. Immigration and Customs Enforcement traveled around the world gathering evidence and witnesses to prosecute Emmanuel, hoping the case "would serve as a model for future prosecutors involving foreign torture allegations."

Model for future prosecutions? The case is said to demonstrate that no American can go abroad and commit atrocities. "Chuckie" was born in Boston, and was a U.S. citizen. He grew up in Orlando, Florida and moved to Monrovia, Liberia to be with his father in 1997, beginning his infamous career as his father's henchman. The senior Taylor is now being tried at The Hague, "charged with war crimes and crimes against humanity for allegedly overseeing the murder, rape and mutilation of thousands of people during Sierra Leone's bloody 10-year civil war."

The election of African-American Democratic Party candidate Barack Obama as President of the United States is raising hopes -- rightly or wrongly -- that the U.S. will change its policies abroad, and not least on the issue of torture. A separate story out of Pakistan earlier today has British journalist Marium Evon Raidley expressing hope that the U.S. will change its torture policies, beginning with the closure of Guantanamo:

“I do not believe that the American people approve of the policies of the Bush administration,” she said, adding that the illegal custody of 36-year old Dr Aafia Siddiqui, an American-educated neuroscientist, is a blatant violation of international law. She said that Dr Siddiqui is a Pakistani national and if there are any charges against her, she should have been tried in Afghanistan.

Ms Ridley revealed that at least 150 children were dumped into orphanages in Afghanistan. These were the children of those detained in torture cells in Afghanistan. She added that many women languishing in US torture cells in Afghanistan are regularly abused, both physically and sexually.

“No civilised and law-abiding nation can approve of such actions,” Ridley stated....

Dr Siddiqui’s whereabouts have been a source of much speculation since 2003. According to Amnesty International, Dr Siddiqui and her three children were apprehended in Karachi in March 2003, after the FBI issued an alert requesting information on her location earlier that month.

There are plenty of guilty U.S. officials who could follow "Chuckie" onto the dock of justice. Will Obama and the Democrats have the "stuff" to pursue such prosecutions, or will it be business as usual, dressed up with liberal prattling? It won't be long before we know.

Lawsuits to Challenge Reactionary Proposition 8

While Barack Obama was elected to the White House with a large convincing majority, signaling the end of the Bush neo-con era in U.S. politics, and symbolically helping heal the wounds of post-slavery racial discrimination, referendums effecting discriminatory laws against homosexuals were successful in various places around the country.

The biggest victory for the reactionaries and religious forces that brain trusted and bankrolled the anti-gay marriage campaign was for California's Proposition 8. The measure, which aimed to change the state's constitution to ban gay marriage appeared to have won. According to SF Gate:

With 96 percent of the vote counted, Prop. 8 was winning by a decisive 400,000-vote margin, 52.2 percent to 47.8 percent. It piled up huge margins in the Central Valley and carried some Democratic strongholds such as Los Angeles County. The measure lost in every Bay Area county but Solano.

Similar bans against gay marriage passed in Arizona and Florida.

Meanwhile, several civil liberties and rights groups moved to file legal challenges to Proposition 8. What follows is the text from the ACLU press release on the matter:

Legal Papers Claim Initiative Procedure Cannot Be Used To Undermine the Constitution's Core Commitment To Equality For Everyone

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

SAN FRANCISCO – The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court today urging the court to invalidate Proposition 8 if it passes. The petition charges that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution's core commitment to equality for everyone by eliminating a fundamental right from just one group – lesbian and gay Californians. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.

The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works. Through the initiative process, voters can make relatively small changes to the constitution. But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters. That didn't happen with Proposition 8, and that's why it's invalid.

"If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw – it removes a protected constitutional right – here, the right to marry – not from all Californians, but just from one group of us," said Jenny Pizer, a staff attorney with Lambda Legal. "That's too big a change in the principles of our constitution to be made just by a bare majority of voters."

"A major purpose of the constitution is to protect minorities from majorities. Because changing that principle is a fundamental change to the organizing principles of the constitution itself, only the legislature can initiate such revisions to the constitution," added Elizabeth Gill, a staff attorney with the ACLU of Northern California.

The groups filed the lawsuit today in the California Supreme Court on behalf of Equality California and 6 same-sex couples who did not marry before Tuesday's election but would like to be able to marry now.

The groups filed a writ petition in the California Supreme Court before the elections presenting similar arguments because they believed the initiative should not have appeared on the ballot, but the court dismissed that petition without addressing its merits. That earlier order is not precedent here.

"Historically, courts are reluctant to get involved in disputes if they can avoid doing so," said Shannon Minter, Legal Director of NCLR. "It is not uncommon for the court to wait to see what happens at the polls before considering these legal arguments. However, now that Proposition 8 may pass, the courts will have to weigh in and we believe they will agree that Proposition 8 should never have been on the ballot in the first place."

This would not be the first time the court has struck down an improper voter initiative. In 1990, the court stuck down an initiative that would have added a provision to the California Constitution stating that the "Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States." That measure was invalid because it improperly attempted to strip California's courts of their role as independent interpreters of the state's constitution.

In a statement issued earlier today, the groups stated their conviction, which is shared by the California Attorney General, that the state must continue to honor the marriages of the 18,000 lesbian and gay couples who have already married in California.

A copy of the statement is available at: www.aclu.org/lgbt/relationships/37701prs20081105.html.

A copy of the writ petition filed today is available at: www.aclu.org/lgbt/relationships/37709lgl20081105.html.

In addition to the ACLU, Lambda Legal and NCLR, the legal team bringing the writ also includes the Law Office of David C. Codell; Munger Tolles & Olson, LLP; and Orrick, Herrington & Sutcliffe, LLP.

I suppose one can take some umbrage in the fact that close to 50 percent voted against the discriminatory ban. But if it's your life that's affected, if you are the one who is treated as a second-class citizen, and it's your relationship that is labeled illegal and immoral, then I imagine that nothing would be truly satisfactory short of full civil rights -- and that's how it should be.

To love someone and to make your life with someone, while getting the sanction of the society to do so, is a fundamental right of every human being in this country. It is a matter of elementary decency that every person oppose these attacks on our gay brothers and sisters, and support the campaigns to rollback reactionary attacks such as Proposition 8. Kudos to ACLU, Lambda Legal, NCLR, and the various law firms offering their services. You can offer your support, too, by financially donating to one of the groups named.

After the Election: a Preview

Glenn Greenwald at Salon.com has succinctly made the point about the pending Obama victory, saving me the trouble of writing it out in my own strained syntax:

It certainly seems, by all appearances, that Barack Obama and Joe Biden will win on Tuesday (though anything can happen, don't assume anything, etc. etc.). For reasons I've explained many times before, I consider that to be a good and important outcome (principally due to the need to excise the Right from power for as long as possible). But the virtually complete absence from the presidential campaign of any issues pertaining to the executive power abuses of the last eight years -- illegal eavesdropping, torture, rendition, due-process-less detentions, the abolition of habeas corpus, extreme and unprecedented secrecy, general executive lawlessness -- reflects how much further work and effort will be required to make progress on these issues no matter what happens on Tuesday.

It doesn't help that Obama has already voted with the national security fetishists on FISA expanded wiretapping.

On the other hand, Barack Obama came out publicly and strongly against the 2006 Military Commissions Act (which McCain supported). The MCA established the unfair military commissions that allowed evidence obtained by torture, upheld indefinite detention of prisoners, and in general gave a green light to U.S. torture. Yes, Obama spoke out against the MCA, but consider his reasoning:

But politics won today. Politics won. The Administration got its vote, and now it will have its victory lap, and now they will be able to go out on the campaign trail and tell the American people that they were the ones who were tough on the terrorists.

* And yet, we have a bill that gives the terrorist mastermind of 9/11 his day in court, but not the innocent people we may have accidentally rounded up and mistaken for terrorists - people who may stay in prison for the rest of their lives....

* And yet, we have Al Qaeda and the Taliban regrouping in Afghanistan while we look the other way. We have a war in Iraq that our own government's intelligence says is serving as Al Qaeda's best recruitment tool. And we have recommendations from the bipartisan 9/11 commission that we still refuse to implement five years after the fact.

The problem with this bill is not that it's too tough on terrorists. The problem with this bill is that it's sloppy.

Note Obama's insistence on being even rougher or smarter with the "terrorists" than Bush. He's repeated this numerous times during the election. He has to know that the Global War on Terror, like its antecedent and policy cousin, the War on Drugs, is a cover for imperialistic control and covert operations by the U.S., including intervention in the sovereign affairs of other states, often engaging in terrorist actions of our own (assassinations, sabotage, etc.). (Liliana Segura made much the same points in her more extended, and interesting article on "Obama and Torture" last February.)

I don't think I've heard one word in this election about reining in the CIA's use of torture, or about extraordinary rendition. When Obama was asked during the campaign if he would support the prosecution of Bush administration figures for crimes such as torture, he famously replied:

"If crimes have been committed, they should be investigated," he said. But he quickly added, "I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we've got too many problems to solve."

The economic crisis has polished Obama's liberal credentials, mainly through the popularity of the tax-the-rich, and make jobs/build infrastructure program proposed by the Democratic candidate. But in so many ways, thus far Obama promises little will change in U.S. military policy. Bush's swagger and bellicosity may soon be gone -- and thank god for that! -- but the logic of events will continue to bring U.S. "interests" into conflict with those of other countries, especially economic interests. At such times, the political elite is fond of reminding us of Clausewitz's dictum that "War is a continuation of politics (Politik) by other means."

Perhaps the unfolding of the coming crises in Central and South Asia, Africa, and South America will push the American president to the left. But I wouldn't count on it. Perhaps it will be the political genius of Barack Obama that he can put off the day of reckoning, in which the thrust of U.S. influence to be supreme around the globe will meet its catastrophic confrontation. Again, though, I think not. Here's Obama's own take on projecting national security interests abroad, highlighting the need to

create a more robust capacity to train, equip, and advise foreign security forces, so that local allies are better prepared to confront mutual threats.

The U.S. has actually been doing that for years. The program is called "School of the Americas," and is based in Fort Benning, Georgia. I don't hear anyone talking about shutting it down, not even "socialist" Obama.

SOA/ WHINSEC [Western Hemisphere Institute for Security Cooperation, the "new" name for SOA, since 2001] graduates have included some of the worst and most notorious human rights abusers in Latin American history, and for much of the world, the school, under any name, is synonymous with torture and impunity. SOA graduates have led military coups and are responsible for massacres of hundreds of people. Among the SOA's more than 60,000 alumni are notorious dictators Manuel Noriega and Omar Torrijos of Panama, Leopoldo Galtieri and Roberto Viola of Argentina, Juan Velasco Alvarado of Peru, Guillermo Rodriguez of Ecuador and Hugo Banzar Suarez of Bolivia. SOA graduates were responsible for the Uraba massacre in Colombia, the El Mozote massacre of 900 civilians in El Salvador, the assassination of Archbishop Oscar Romero and the massacre of 14-year-old Celina Ramos, her mother Elba Ramos and six Jesuit priests in El Salvador and hundreds of other human rights abuses. Closing the school would send a strong human rights message to Latin America and the world.

It will be an important moment in U.S. history for an African-American to be elected president. But after all the celebrations die down, the same old issues will be there. The political awakening of the U.S. population has barely begun. The forms of struggle against the entrenched power of the national security state and the military-industrial-technological complex that supports it have yet to be worked out.

However you look at it, the defeat of Bush acolyte McCain, and his right-wing populist-cum-demagogue Alaskan running mate, will be a good thing. But much struggle lies ahead, and the election of Obama does not necessarily portend a major change in U.S. foreign or military policy. A President Obama will get his honeymoon, but what comes after remains to be seen.

No on California's Proposition 8

The reactionaries of various organized religion churches and "foundations," including the Roman Catholic Church, the Church of Jesus Christ and Latter-day Saints (Mormons), Union of Orthodox Jewish Congregations of America, Focus on the Family, the American Family Association, and others, have infamously pushed a constitutional amendment to the California State Constitution banning same-sex marriage. This overt attempt to legislate discrimination into the state constitution is on the November 4 state ballot.

This attempt by religious zealots to dictate their morality to everyone comes despite a California Supreme Court decision last May, when, by a vote of 4–3, the Court ruled that the previous statutes or laws that limited marriage to only a relationship between a man and a woman represented violations of the equal protection clause of the California State Constitution. Therefore, the judges held, same-sex individuals (gays, lesbians) have the right to marry is protected by the state constitution.

Ever since the court ruling, conservatives and religious foes have agitated against the idea of gay marriage, as if it represented the coming of the Antichrist. Californians must reject this overt attempt to put a religious agenda into basic state law. Vote No on Proposition 8. Watch the video below, narrated by Samuel L. Jackson. (Hat-tip to Penman at Daily Kos)



Don't forget: donations made even at this late hour can help tremendously. Donate here.

Gitmo "Confession" Thrown Out, While CIA Wins Torture Secrecy Ruling

From the Miami Herald, 10/28/08:

GUANTANAMO BAY NAVY BASE, Cuba -- In a first, a military judge ruled on Tuesday that a Guantánamo detainee's confession was extracted through torture, and excluded it from the trial of a young Afghan detainee at the war court.

Afghan police threatened the family of teenager Mohammed Jawad while he was undergoing interrogation at a Kabul police station, said Army Col. Stephen Henley, the judge, in a three-page ruling.

Jawad, who was a teenager at the time of his capture in Afghanistan, has been fighting to have the charges against him dismissed. The recognition by the military court that death threats constitute torture, means his coerced confession cannot be used at his upcoming trial, due to start January 5, 2009.

According to attorney Jamil Dakwar, a military commissions observer for the American Civil Liberties Union, the judge's ruling rejects the "legal opinion by Bush administration lawyers that early on sought to soften the definition of torture by sanctioning threats to family members."

The Jawad case has highlighted the inherent unfairness of the military commissions process, established by Congress at the insistence of the Bush Administration. (For those interested, John McCain supported the Military Commissions bill, while Barack Obama opposed it.) Just a few weeks ago, the involvement of the Behavioral Science Consultation Teams (BSCTs) in the torture of Jawad at Gitmo was exposed. Last month, one of the Jawad's military prosecutors quit, charging the government with suppression of exculpatory evidence in Jawad's case.

USA Today's blog, On Deadline, has published a selection from Col. Henley's ruling (the entire ruling can be accessed here):

The Accused now moves this Military Commission to suppress all statements he made to Afghan government authorities on December 17, 2002 because they were obtained by the use of torture, as that term is defined in the Military Commission Rules of Evidence (MCRE).

A statement obtained by the use of torture shall not be admitted into evidence. “Torture” includes statements obtained by use of death threats to the speaker or his family; the actual infliction of physical or mental injury is not required. Instead, the relevant inquiry is whether the threat was specifically intended to inflict severe physical or mental pain or suffering upon another person within the interrogator’s custody or control. In this case, the Afghan government and police authorities told the Accused he and his family would be killed if he did not confess to throwing the grenade. The interrogators were armed. There is no evidence the threats were made in jest or intended as a joke. Given the Accused’s age and the then reputation of the Afghan police as corrupt and violent, the Commission specifically finds these threats credible.

Evidence that someone died or suffered severe injury is not required for the Commission to determine that the threat to kill the Accused and his family was intended to inflict severe physical or mental pain or suffering. On this point, the Commission can not envision a situation where a credible threat to kill someone unless they confess would not satisfy the “act specifically intended to inflict severe physical or mental pain or suffering” requirement in the MCRE definition of torture.

While the torture threshold is admittedly high, it is met in this case.

While Jawad's attorneys have been able to thread the needle in Jawad's case, and get the MC judge to rule that he was tortured, even by the MCRE's narrow definition of torture, the use of coerced confessions and reliance on evidence produced by torture remains a fixture of the MCRE process. It's an embarrassment and a crime that it was ever a question whether death threats by interrogators constituted torture of a detainee.

Meanwhile, CIA Wins Torture Secrecy Ruling

Consider another court ruling just released: according to Wired, Chief Judge Royce Lamberth of the Washington D.C. Circuit Court ruled that "the CIA can hide statements from imprisoned suspected terrorists that the agency tortured them in its set of secret prisons." The ruling states that judicial review of allegations of torture from prisoners such as Khalid Sheihk Muhammad would jeopardize national security. (Link to Lamberth's ruling -- For all of you FISA fans: Judge Lamberth is remembered as FISA's secret spy court from 1995 to 2002.)

From the Wired article:

"The Court, giving deference to the agency’s detailed, good-faith declaration, is disinclined to second-guess the agency in its area of expertise through in camera review," Lamberth wrote (.pdf), referring to a procedure where a judge looks at evidence in his chamber without showing it to the opposing side....

"Among the details that cannot be publicly released are the conditions of the detainees’ capture, the employment of alternative interrogation methods, and other operational details," the CIA's Wendy Hilton told the court in a sworn affidavit (.pdf). "Specifically, disclosure of such information is reasonably likely to degrade the CIA's ability to effectively question terrorist detainees and elicit information necessary to protect the American people."

The CIA also successfully argued that it needed to redact statements about what countries were involved in the program, saying that such allegations could destroy relationships with countries that helped with the CIA's controversial program of secretly kidnapping suspected terrorists and shuttling them to hidden prisons in Europe and Asia, where neither families nor the Red Cross knew of their detention.

Transcripts from each of the 14 detainee's Combatant Status Review Tribunals in Guantanamo Bay were provided to the ACLU and posted to the Pentagon's website in the summer of 2007. Six of those included some redactions.

While one can be happy that Mohammad Jawad, imprisoned over five years now, may be able with the current ruling to more effectively fight the bogus charges against him, Lambeth's ruling shows just how far we have to go in the fight against torture in this country.