Sleight of Hand: Obama's Military Commissions Redux

Peter Finn at the Washington Post appears pretty confident about it:

The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections, government officials said.

The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly.

This news comes after Andy Worthington's scoop that Chief Prosecutor of the Military Commissions, Col. Lawrence Morris, "is retiring from active duty, and will be replaced by Capt. John Murphy (US Navy Reserve)." Murphy was the lead prosecutor in the case of Salim Hamdan, Osama bin Laden's driver, who despite Murphy's plea for a 30-year-sentence for the small fry Hamdan, got a minimal sentence and was sent back to Yemen last November.

Murphy is also a member of the prosecution team for Omar Khadr, the Canadian famously arrested on the battlefield at age 15 and shipped back to Gitmo as a dangerous "terrorist." As Worthington notes:

As Khadr’s case is one that, outside of the Pentagon and the corridors of power in Canada, has attracted universal condemnation –- primarily because of the Bush administration’s neglect and abuse of a juvenile, and because of well-chronicled attempts by the prosecution to suppress evidence vital to his defense –- it may well be that, as a result, Capt. Murphy will pursue an aggressive agenda if the Obama administration decides to ignore all sensible advice to the contrary, and proceeds to revive the Commissions, rather than pursuing those cases worthy of trial (somewhere between 25 and 50, according to the best estimates) in federal courts on the US mainland.

The Washington Post story, and an earlier one in the New York Times, appear to corroborate Worthington's fears about where the military commissions are going.

Amnesty International and ACLU spokesmen have already denounced the proposed "changes". "'It's going to tarnish the image of American justice again,' said Tom Parker, a counterterrorism specialist at Amnesty International."

bmaz over at Emptywheel/FDL has produced a succinct takedown of the Obama proposal:

The rules would "block the use of evidence obtained from coercive interrogations". All evidence from coercive interrogations or just some evidence from coercive interrogations? Will the ban be on any coerced statements and fruits thereof, or only those that came from that particular defendant? Will coerced statements from others be allowed, and if so to what degree? What about the fruit of coercion? Once you have tortured an individual, how do you not term any information obtained while he is still detained subsequent to that torture to not be the product of coercion? The reliance on "clean teams" and/or regular interrogators subsequent to torture to sanitize the proceedings is a joke. It is crystal clear that the Obama Administration is desirous of sliding in a lot of evidence this way, it is why they have fallen back onto the tribunals.

This idea of evidence scrubbed clean of its torture taint reminds me of Binyam Mohamed’s interview with the Daily Mail only two months ago (it already seems like an eternity):

[Binyam Mohamed] reached Guantanamo in September 2004.

There, the interrogations continued but there had been another shift.

He says: ‘They said they were worried I would tell the court that I had only confessed through torture. They said now they needed me to say it freely.

‘We called them the clean team, they wanted to say they had got this stuff from a clean interrogation.’

bmaz continues:

The rules would "tighten the admissibility of hearsay testimony". Well, as stated above, this is not the case in the least; in fact, the rules are specifically designed to allow for wide ranging admissibility of hearsay. Again, that is the whole purpose here. The use of "hearsay" here is going to be designed to protect sources and means, conceal identities of the agents of torture and rendition and allow for selective use of classified information without challenge. In short it is nothing but a scam to deny the defendant the opportunity to confront and cross-examine his accusers and the evidence propounded against him; the very principle that is the bedrock of minimal due process and fundamental fairness.

The rules would "allow detainees greater freedom to choose their attorneys". You've got to be kidding me. Seriously? What a load of dung. The Obama Administration has proved themselves every bit as obstreperous in relation to allowing effective assistance of acceptable counsel to the detainees as the Bush/Cheney crew was, witness the dogged determination to remove Kuebler in the Khadr case. How, pray tell, are detainees that have been locked up in the hell hole of Guantanamo for five plus years, tortured, isolated, feared up, egoed down, repeatedly told that any lawyer they speak to is an imperial American spy out to get them etc. going to meaningfully participate in obtaining counsel of their choice? And that is before you get to the fact that the US government has extremely narrow acceptability criteria for attorneys that are even able to be contemplated for participation in the tribunals.

I don’t think, however, that the resurrection of the military commissions is a manifestation of laziness on Obama’s part. Nor is it a failure of leadership, per se. The Military Commissions are a constituent part of the torture program which, even now, is not dismantled, and continues in somewhat attenuated form as part of the Army Field Manual. It is also part of the cover-up of the previous torture program, allowing for the use of torture evidence without the political explosion that would take place by having to release or acquit “terrorists” (really “accused terrorists,” but who cavils about such things in our modern America anymore?) because the evidence was tainted by torture, and therefore inadmissible.

All signs point to the fact that when it comes to national security and military matters, Obama is compliant to the wishes of the Pentagon, that he has no real policy of his own. For that matter, has Obama ever rejected the Bush-era 2002 document, The National Security Strategy of the United States of America, which famously put forth the current U.S. doctrine of pre-emptive war and world U.S. military supremacy? If he did, I missed it somehow. But then, there is a “process”:

By law, Obama is required to submit a comprehensive national security strategy report within 150 days of taking office. A Defense Department briefing slide reviewed by Inside the Pentagon suggests the new team might develop high-level planning guidance next spring, followed by a new national security strategy next summer. In early 2010, the Obama team’s first QDR report would be issued, along with a National Defense Strategy and National Military Strategy, according to the slide.

If the new proposal for military commissions hangs true, then I think we are getting a sneak peek at the politics that will drive the Obama's new National Security Strategy report, and I don’t expect a big difference from what we have seen, at least not when it comes to the "Global War on Terror."

PHR's Call for Independent Investigation of APA's Ties to Pentagon

A very respected human rights/medical ethics group has come out with a strong call for an investigation of the shady dealings between the American Psychological Association and Pentagon personnel and/or agencies. (For more detail regarding this strange history, see this past article of mine, and Sheri Fink's recent piece at Salon.com.)

I heartily second PHR's call for an investigation.

PHR Calls for Investigation of American Psychological Association’s Ties to Pentagon

Cambridge, MA (May 5, 2009)— Physicians for Human Rights (PHR) is calling for an independent, outside investigation of the American Psychological Association (APA). This call comes in the wake of newly released internal APA documents which have just been posted online by Salon.com and ProPublica (in PDF).

The emails indicate that the 2005 APA’s ethics task force (PDF) on national security interrogations developed its ethics policy to conform with Pentagon guidelines governing psychologist participation in interrogations.

Physicians for Human Rights also calls on the Pentagon’s Inspector General to investigate whether any federal employees exerted influence over the APA’s Presidential Task Force on Psychological Ethics and National Security (PENS).

“These serious allegations require an independent investigation to determine whether APA leadership engaged in unethical conduct,” stated Steven Reisner, Ph.D., PHR Advisor for Psychological Ethics. “The American public deserves to know if there were inappropriate contacts or conflicts of interest between APA officials and the Pentagon.”

PHR has been a longstanding and outspoken critic of the APA’s PENS policy governing psychologist involvement in interrogations, calling for a “bright line” prohibition against health professional participation in interrogations. Though the APA membership passed a 2008 referendum banning psychologists from facilities that violate US and international human rights law, PHR believes that the PENS policy must be immediately revoked.

“In 2005 PHR first called for the APA’s ethics policy on interrogations to be rescinded,” added Dr. Reisner. “Now is the time for the APA to replace those flawed guidelines with standards that put a psychologist’s ethical obligations to human rights principles ahead of following orders.”

The recently released Senate Armed Services Committee report detailing detainee abuse by the Department of Defense confirms that psychologists rationalized, designed, supervised, and implemented the Bush Administration’s torture program.

“The Senate Armed Services Committee report confirms that psychologists were central to the Bush Administration’s use of torture,” said Nathaniel Raymond, Director of PHR’s Campaign Against Torture. “In the context of these revelations, the American public needs to know why a supposedly independent ethics policy was written by some of the very personnel allegedly implicated in detainee abuse.”

“These emails show that several of the military psychologists formulating APA ethics policy were giving themselves get-out-of-jail-free cards. Their report asserted that it was ethical to follow military policy while the OLC memos allowing torture were still in effect,” said Stephen Soldz, board member of Psychologists for Social Responsibility.

Since 2005, PHR has documented the systematic use of psychological torture by the US during its interrogations of detainees at Guantanamo, in Iraq and Afghanistan, and elsewhere in its groundbreaking reports Break Them Down, Leave No Marks, and Broken Laws, Broken Lives. The organization has repeatedly called for an end to the use of the SERE tactics by US personnel, the dismantling of the Behavioral Science Consultation Teams (BSCT) teams, and a full Congressional investigation of the use of psychological torture by the US Government.

PHR has worked to mobilize the health professional community, particularly the professional associations, to adopt strong ethical prohibitions against direct participation in interrogations. PHR shared the 1997 Nobel Peace Prize.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Also posted at Firedoglake

SERE Psychologist ("Master of the Mind F*ck") Interviewed on NPR

Alix Spiegel at NPR's All Things Considered scored a coup by getting an interview with SERE psychologist Bryce Lefever, who also served on APA's PENS task force on interrogations. Lefever offers an apologia for the torture interrogations that are now famously linked to SERE psychologists James Mitchell and Bruce Jessen. Lefever describes his experience with teaching military recruits how to withstand torture "fascinating... a human laboratory."

According to Lefever, at a yearly meeting shortly before 9/11, statements by former APA President Joseph Matarazzo to the SERE meeting helped "crystallize" for him that SERE psychologists must use their skills to help their country. Now he feels that Mitchell and Jessen are being unfairly vilified, their motives and actions misunderstood.

Stephen Soldz caught the story and made the links to Lefever's participation with the American Psychological Association's Psychological Ethics of National Security (PENS) task force:

Lefever explicitly renounces the quaint psychologist ethics code with its “Do No Harm” standard. If causing pain will reduce the total harm in the world, then it is the only ethical way to go, Lefever told NPR listeners.

Lefever’s ethical attitudes are especially interesting as he was a member of the American Psychological Association’s task force on Psychological Ethics and National Security.

One might think that APA officials PENS members would be surprised by Lefever’s pro-torture positions. But that would be naive. For Lefever expressed exactly these opinions on the PENS listserve....

In fact the PENS meeting was a steep learning curve for me in that it was a far more political process than I anticipated and I had hoped that we would have worked out our positions via intellectual or philosophical debate. When I brought up the idea of harm, and what is harm, it fell on deaf ears. I pointed out that behavioral and psychological techniques used in training our high-risk-of-capture students in Survival Schools [SERE] are viewed as vital, necessary, good, and for the greater good. Psychologists are strong proponents of these techniques even though they inflict psychological and physical pain. Yet the very same behaviors are proscribed by the Department of Defense and viewed as harmful when applied to America’s prisoners.

Notice that Lefever appears here to be acknowledging that SERE-based techniques were indeed being used on US detainees, a fact conveniently ignored by the more politically savvy members of the task force....

Lefever also told the task force that the pursuit of “human rights” was, by definition, unethical [emphasis added]:

These words –- morals and ethics -– do not mean “the ways of the individual” or individual rights. Any time the rights of the individual are placed above what is best for the community, it is, by definition, unethical or immoral. The discussion of individual rights is the domain of “human rights” organizations (like ACLU).

As Psychologists for Social Responsibility, bioethicist Steven Miles, and others have said recently, we urgently need an independent investigation of psychologists’ aid to abusive interrogations. Such an investigation must examine the role of the APA and its leadership in providing ethical cover for this torture program.

Notice how Lefever's words echo those of former APA President Gerald Koocher from another portion of the PENS listserv material, which I quoted last week (H/T Gregg Levine) (emphasis added):

May 6, 2005: “In many of the circumstances we will discuss when we meet the psychologist’s role may bear on people who are not ‘clients’ in the traditional sense. Example, the psychologist employed by the CIA, Secret Service, FBI, etc., who helps formulate profiles for risk prevention, negotiation strategy, destabilization, etc., or the psychologist asked to assist interrogators in eliciting data or detecting dissimulation with the intent of preventing harm to many other people. In this case the client is the agency, government, and ultimately the people of the nation (at risk). The goal of such psychologists’ work will ultimately be the protection of others (i.e., innocents) by contributing to the incarceration, debilitation, or even death of the potential perpetrator, who will often remain unaware of the psychologists’ involvement.”

Spencer Ackerman at Firedoglake captures some of the absurdity and hubris of Lefever's panegyric to a torturer's "ethics":

Still, some people don't believe in inviolable rights, or will see a goal so overwhelmingly important that it allows for desperate measures. Here it's necessary to remember that Ali Soufan of the FBI was exactly what Jessen and Mitchell and this gentleman Lefever isn't, which is to say a trained interrogator. His testimony -- both what's out now and what's forthcoming -- is about how the inexperienced interrogators moved toward brutality out of ignorance. Lefever, in other words, is in no position to know what he's stipulating, which is that "the most good for the most people" required torture.

Lefever is certainly being honest when he says he believes that what he says is the position of most SERE psychologists. Whether it is or not, I can't say. But his attitude fits the "cowboy" reputation of a certain element at Joint Personnel Recovery Agency, the parent department of SERE at DoD, where ex-Special Forces personnel, careerist military officers, and poorly trained and educated psychologists fashioned a culture of inviolability and anti-intellectual superiority, best caught in their self-proclaimed moniker (as one source that wishes to remain anonymous with some knowledge of the individuals involved told me): "Masters of the Mind Fuck"!

Well, MOMF they may be, but they are also in a heap of trouble, and it can't be making those who have a better semblance of understanding of the legal jeopardy they are in happy to see one of these "cowboys" spouting off. But for the rest of us, it's an eye-opening peek at the kinds of people who helped construct the interrogation program that tortured in America's name.

Pass the Torture Victims Relief Act

The Torture Victims Relief Act (TVRA), HR-1511, first passed in 1998, authorizes funding to support torture treatment programs in the U.S. and abroad. With the continued practice of torture in over 100 countries, and the recent surge in political will to denounce torture, it is a crucial time for the U.S. to reaffirm its commitment to treatment for torture victims, both at home and oveseas.

American centers have been reporting increasing numbers of asylum seekers in need of services, and the U.S. has recently committed to resettle an increased number of Iraqi refugees over the next few years (though still a pittance, compared to the millions displaced by the Iraq war and occupation). The recession has made things extremely difficult for these new refugees. It has also seriously impacted victim rehab centers in the U.S. and overseas, with cutbacks in staff and services, and, in some cases, closing their doors.

The bill has been referred to the House Foreign Affairs and House Energy and Commerce committees. Please call your Congressperson and ask them to reauthorize TVRA in 2009 and appropriate the funds at authorized levels. You will be doing something concrete to help those tortured abroad who, despite the torture scandal that envelops this country right now, have come to the U.S. seeking refuge and safety from oppression and torture in countries as diverse as Guatemala, Philippines, Bosnia, Russia, Ethiopia, Egypt, Jordan, Saudi Arabia, Burma (Mynamar), Yemen, and many, many more.

Released FBI Memo Documents Bush Ordering Torture

For the Soldier who fights for Truth, calls his enemy his brother. -- William Blake

Jason Leopold had an amazing find when perusing old released FBI documents the ACLU posted has posted on their site. There are about 100,000 such memos at the site, and who knows how much else is buried in that cache? The memo he reports on was first posted by the ACLU in December 2004, but the information in it lay buried until just this week.

Senior FBI agents stationed in Iraq in 2004 claimed in an e-mail that President George W. Bush signed an executive order approving the use of military dogs, sleep deprivation and other harsh tactics to intimidate Iraqi detainees.

The FBI e-mail -- dated May 22, 2004 -- followed disclosures about abuse of Iraqi detainees at Abu Ghraib prison and sought guidance on whether FBI agents in Iraq were obligated to report the U.S. military’s harsh interrogation of inmates when that treatment violated FBI standards but fit within the guidelines of a presidential executive order.

According to the e-mail, Bush’s executive order authorized interrogators to use military dogs, “stress positions,” sleep “management,” loud music and “sensory deprivation through the use of hoods, etc.” to extract information from detainees in Iraq, which was considered a violation of the Geneva Conventions. Bush has never before been directly linked to authorizing specific interrogation techniques at Guantanamo or Abu Ghraib. Bush has admitted, however, that he personally signed off on the waterboarding of three "high-value" prisoners.

Leopold notes that previously the Bush White House (in the person of Alberto Gonzales) stated in 2004, "The president has not directed the use of specific interrogation techniques." But the Senate Armed Services report on Department of Defense treatment of prisoners did note that at the very least it was President Bush himself whose February 7,2002 Executive Memorandum denying al-Qaeda and the Taliban Geneva protections, “opened the door” to torture and abuse of prisoners.

While Jason is writing a news article and can't call Bush and Gonzales liars, I can. The FBI memo is clear evidence of such an executive order. The FBI agents are writing for clarification of what constitutes reportable "abuse," since they have been ordered to report abuse to their superiors.

From the memo:

Our questions relate to the instruction in the EC to report abuse. The EC states that if "an FBI employee knows or suspects non-FBI personnel has abused or is abusing or mistreating a detainee, the FBI employee must report the incident.

This instruction begs the question of what constitutes "abuse." We assume this does not include lawful interrogation techniques authorized by Executive Order. We are aware that prior to a revision in policy last week, an Executive Order signed by President Bush authorized the following interrogation techniques among others sleep "management," use of MWDs (military working dogs), "stress positions" such as half squats, "environmental manipulation" such as the use of loud music, sensory deprivation through the use of hoods, etc. We assume the OGC instruction does not include the reporting of these authorized interrogation techniques, and that the use of these techniques does not constitute "abuse."

In a posting earlier today, Emptywheel noted that the FBI memo above was also quoted in the Department of Justice Inspector General Report on FBI involvement in detainee interrogations. The e-mail made a stir when first reported in December 2004, but the news dropped out of site after the White House issued a denial, and no EO surfaced.

Looking at the DoJ OIG report, I noticed that there was no denial of the claims made regarding coercive interrogation methods in a Bush presidential executive order by either OIG, or any number of officials who received this message. One would think that if the agent was incorrect, someone would have noted it. But in fact, the reference by the FBI agent to Bush's presidential EO is not denied by those who best would have known if it were true. I take this as convergent, though not definitive, evidence of the EO's existence.

Take for instance the final follow-up to the agent's request, by FBI General Counsel, Valerie E. Caproni:

Does it answer his question to say that conduct that is known to be authorized need not be reported?

In other words... go away, don't bother me! Just follow what constituted authority tells you to do.

Shame on the FBI agents who wrote this memo, and shame on the FBI higher-ups who hid behind terms like "lawful" or "authorized" for what are clearly abusive torture techniques. While noting they would still report physical beatings, sexual humiliation "or other conduct clearly constituting abuse," the effect of the Bush EO was to draw indefinable lines between torture and "harsh" abuse. Apparently these agents were unaware that even "cruel, inhumane, and degrading" treatment is outlawed by both the Geneva Convention and the Convention Against Torture, treaties to which the U.S. is signatory, and are law in the United States. Clearly, Bush was unaware or uncaring of such facts, having used his attorneys to cook up bogus legal opinions for the ongoing torture he had already ordered.

The consequences of Bush's torture program are incalculable, from the loss of international trust, to the decay of law, both at home and abroad. Of course, there is the damage to the tortured themselves. PHR wrote a great book, Broken Laws, Broken Lives, on how torture affects its victims. But here, I only want to point out how it affected just one of Bush's torture victims, Abu Zubaydah, who was waterboarded 83 times, and who was never the Al Qaeda mastermind the administration claimed he was. He was tortured so he could cough up a (false) link between Al Qaeda and Saddam Hussein, in order to provide a cause for war for the bellicose Bush administration.

How's Zubaydah doing today? Years now let out of his CIA prison, and held still at Guantanamo, even months after Obama determined the prison should close, let this description by Joseph Margulies in the Los Angeles Times today on Zubaydah's current condition serve as an epitaph for this article, if not for this nation's soul:

Partly as a result of injuries he suffered while he was fighting the communists in Afghanistan, partly as a result of how those injuries were exacerbated by the CIA and partly as a result of his extended isolation, Abu Zubaydah's mental grasp is slipping away.

Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.

But physical pain is a passing thing. The enduring torment is the taunting reminder that darkness encroaches. Already, he cannot picture his mother's face or recall his father's name. Gradually, his past, like his future, eludes him.

If a monarch leader who orders torture cannot be prosecuted for this heinous crime, then what hope is there left for our society?

"What We Talk About When We Talk About Torture"

Time to move forward? Torturers "just following orders"? Is Cheney right?

Just ask Tom Tomorrow! (H/T Christy Hardin Smith)

And for less cosmic comedy, reflect on the ironies in the following video:

9th Circuit Rules Against Obama/Bush on State Secrets in Jeppesen Case

The Ninth Circuit Court of Appeals has rejected the Department of Justice arguments of "state secrets" in the suit against Boeing subsidiary Jeppesen Dataplans, Inc., and will let their suit go forward.

Glenn Greenwald reported yesterday:

...in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security....

Critically, the court went on to note that the Government's interests in maintaining secrecy "is not the only weighty constitutional values at stake."

Astute legal observer, bmaz, over at Emptywheel/FDL, noted a small fly in the ointment, but concluded, "this is a big blow to the government and a win for the rule of law." The fly?

... it appears from a skimming of the decision that they did not dismiss the ability of the government to assert state secrets, rather indicated the time was not ripe for it.

FAS Secrecy News notes a particular aspect of the ruling, which speaks to the importance both Greenwald and bmaz give the case:

In another crucial distinction, the court said that the fact that certain information is "classified" does not necessarily mean that it is "secret" for purposes of the privilege.

"A rule that categorically equated 'classified' matters with 'secret' matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process," the court said.

Greenwald noted other, similar statements in the brief.

While it indeed looks like Binyam Mohamed and the other plaintiffs in the Jeppesen case will get their day in court (referring to damages incurred by them as torture victims in the CIA's secret rendition program, using Boeing subsidiary Jeppesen Dataplan for critical flight planning and logistical support services and aircraft crews), the government has not responded yet to the ruling, leaving open the possibility of further appeals.

How APA Made a Pact with DoD & CIA over Torture Interrogations

Also posted at Firedoglake

Author's note, 4/29/09: This post's text contains five editorial corrections, two by strikeout, and three by adding a small amount of additional text (in brackets). The corrections were made after feedback from Dr. Jean Maria Arrigo, relating to mischaracterizations I made regarding a few facts about her actions and background. I regret any discomfort this may have caused Dr. Arrigo.

Dr. Steven Miles, the author of Oath Betrayed - America's Torture Doctors, and a prominent bioethicist at the University of Minnesota, has released the text of an open letter he has written to Dr. Stephen Behnke, Ethics Director of the American Psychological Association (APA), and Dr. Gerald Koocher, 2006 APA President.

Miles asks Behnke and Koocher "to publically urg[e] the APA to conduct a transparent review of how" it came to give a platform to "senior Department of Defense officials who were intimately involved in the support, protection, and implementation of corrupted interrogation standards." Behnke and Koocher are singled out as having "leadership roles in the APA’s relationship to... [torture] interrogations."

Miles is speaking most specifically about the PENS Task Force, established by the American Psychological Association in Spring 2005. PENS stands for Psychological Ethics and National Security. The Task Force was formed by the APA bureaucracy, with the following charge:

[E]xamine whether our current Ethics Code adequately addresses [the ethical dimensions of psychologists’ involvement in national security-related activities], whether the APA provides adequate ethical guidance to psychologists involved in these endeavors, and whether APA should develop policy to address the role of psychologists and psychology in investigations related to national security.

Dr. Miles asks Koocher and Behnke:

What were the formative contacts between DoD and APA that led to the creation of the PENS Task Force?

Who nominated and selected the members of the PENS Task Force?

What were the back channel communications between APA and DoD officials as the PENS Task Force Report was drafted and modified?

The answers to these questions cannot undo the damage but they are needed for those who can work to prevent such recruitment of a health professional organization in the future.

Miles has called for the APA to form its own "Truth Commission," joining the call of Psychologists for Social Responsibility for an investigation into the use of SERE, DoD, and CIA psychologists for Bush's torture program, and ties between APA and the implementation of the controversial interrogations policy.

PENS' Role in the Interrogation Scandal

The APA and the PENS Task Force may be a linchpin between the use of psychologists in the torture program and the higher-ups who were determined to implement such a program. In a way, DoD showed their hand, anxious to stamp down any dissent within the ranks of organized psychology, by stacking the composition of the PENS Task Force with military personnel, with Koocher and Behnke their willing accomplices. In the end, six of the nine members of the PENS TF were related to military activities, a clear majority.

One of military PENS participants was showcased in the Senate Armed Services Committee Report released last week. Lt. Col. Louie "Morgan" Banks, in 2002, the Chief Psychologist for U.S. Special Forces Command, was writing emails warning about the dangers of using SERE techniques in actual interrogation situations (see email from Banks to Major Paul Bruney at Gitmo, 10/2/02), even as only a month before, Banks was a key figure in organizing a training for Guantanamo psychologists and interrogators to learn SERE techniques!

At the time of the PENS meetings, Banks was also the senior SERE psychologist, and, as the internal opposition to official APA interrogations policy, the Coalition for an Ethical Psychology (CFEP) noted, "responsible for the training and oversight of all Army SERE Psychologists." It seemed strange at the time, but further revelations have made the appointment of Banks to the APA task force studying the appropriateness of psychologists participating in DoD interrogations more than simply suspicious.

Banks was not the only suspect member of the task force. In an FAQ on the subject, CFEP discussed another prominent PENS participant:

Scott Shumate, Ph.D. was, at the time of PENS, the chief psychologist for the Counterintelligence Field Activity (CIFA), the intelligence arm of the DoD. From April 2001 until May of 2003 he was the chief operational psychologist for the CIA’s Counter Terrorism Center (CTC), and held that position during the period when [James] Mitchell and [Bruce] Jessen were contracted by the CTC to introduce SERE-based techniques into CIA counterterrorist operations.

The cast of dubious participants only grows, and the suspicion that the fix was in grew even upon the few non-military members of the PENS group. Looking around them, they started to feel uncomfortable, seeing the likes of Banks; Shumate; Col. Larry James (former Chief Psychologist for the Joint Intelligence Group (JIG) at Guantánamo, Jan-May 2003); former SERE psychologist/trainer, Captain Bryce Lefever, who had worked as a consultant to Special Forces in Afghanistan during the 2002 invasion; and Robert A. Fein, Ph.D., who worked as a consultant to Counterintelligence Field Activity (CIFA) on "effective" interrogation methods, and was a subordinate of Shumate's. (See bios for all PENS members here.)

The whole set-up felt wrong to two of the non-military members of the task force. When one of them, Dr. Jean Maria Arrigo, heard that no one would be allowed to take written notes at the PENS meetings, she secretly wrote notes on napkins [was rebuked by Scott Shumate for taking notes on the first day of meetings, she continued taking some notes anyway,] and made efforts to secure the communications from the TF's list-serv, which she deposited later at the Hoover Institution, and gave copies to the Senate Armed Services Committee, and apparently selected human rights groups, activists, and reporters.

What kind of material was discussed behind the scenes by the PENS participants? Well, here's one example, a message from Dr. Koocher to the PENS group:

May 6, 2005: “In many of the circumstances we will discuss when we meet the psychologist’s role may bear on people who are not ‘clients’ in the traditional sense. Example, the psychologist employed by the CIA, Secret Service, FBI, etc., who helps formulate profiles for risk prevention, negotiation strategy, destabilization, etc., or the psychologist asked to assist interrogators in eliciting data or detecting dissimulation with the intent of preventing harm to many other people. In this case the client is the agency, government, and ultimately the people of the nation (at risk). The goal of such psychologists’ work will ultimately be the protection of others (i.e., innocents) by contributing to the incarceration, debilitation, or even death of the potential perpetrator, who will often remain unaware of the psychologists’ involvement.”

"Even the death of the potential perpetrator"! "The debilitation"! One should remember, these are the pronouncements of the President of the American Psychological Association to his blue-ribbon (DoD-stacked) panel. They are also the words of someone undergoing a profound moral degeneration. This was amplified when, after Dr. Arrigo went public with her criticisms, Koocher labeled her actions "the sad emotional aftermath of a troubled upbringing complicated by the suicide of a parent who engaged behaviors she now abhors."

Of course, [I cannot know if Dr. Arrigo had a "troubled upbringing."] Dr. Arrigo had no "troubled upbringing." Her father was no criminal, nor was he even dead! I guess when you are caught out, your own actions can go to some fairly hysterical places. [Dr. Arrigo adds that at the time Dr. Koocher made his allegations, she was in "cordial contact" with her father.]

Another PENS participant, Dr. Michael Wessels, Professor of Clinical Population and Family Health at Columbia University, ultimately resigned from PENS Task Force itself, the only member to do so. In a letter to PENS chair Olivia Moorehead-Slaughter, he explained:

Out of ethical concerns, I have decided to step down from the PENS Task Force because continuing work with the Task Force tacitly legitimates the wider silence and inaction of the APA on the crucial issues at hand. At the highest levels, the APA has not made a strong, concerted, comprehensive, public and internal response of the kind warranted by the severe human rights violations at Abu Ghraib and Guantánamo Bay. The PENS Task Force had a very limited mandate and was not structured in a manner that would provide the kind of comprehensive response or representative process needed.

There was plenty more evidence of high-level APA and governmental interest in keeping the lid on the PENS process, such that the conclusion of the PENS Task Force was foreordained: there was nothing unethical about psychologist participation in the interrogations process then underway at various DoD sites. In fact, psychologist participation was about securing safety for the prisoners, and giving expertise to the process.

This must have been good news to the various mucky-mucks who attended the PENS sessions in order to observe. These unofficial attendees included the Director of the APA Practice Directorate, Russ Newman; as well as four members from the APA's Science Policy or Science Directorate, Susan Brandon, Steven Breckler, Heather Kelly, Geoff Mumford, among others. According to Arrigo, it was unusual to have as observers "lobbyists on issues that overlapped with the mission of the Task Force."

Newman's presence raised some eyebrows, as his wife was Dr. Debra Dunivin, an active duty SERE psychologist working with Banks and James at Guantanamo. Conflict of interest anybody?

As Lt. Col. Banks wrote on the PENS Listserv on August 8, 2005, after the report was rushed through and approved:

Last Friday, I spent eight hours with the Army's Surgeon General, LTG Kiley, along with Larry James, Debra Dunivin, and several others. We were trying to establish the doctrinal guidelines and training model for psychologists performing this job. The TF [Task Force] report provided, again, a solid anchor to use in our deliberations.

The Army Surgeon General was involved, too? How far does the cast of characters of this incestuous menagerie extend?

Beyond PENS: The Bigger Picture of APA Subservience to National Security Programs

The appearance of the "observers" from the Science Directorate was notable, as these psychologists were key figures in APA lobbying of Defense Department funds. One of these figures, Susan Brandon, was working at the time of the PENS process for the White House Office of Science & Technology Policy. She has also worked for Mitre Corporation, and was once Senior Scientist at APA, as well as Program Officer for Affect and Biobehavioral Regulation at NIMH.

Brandon also has the dubious distinction of being one of the chief organizers of a CIA/RAND/APA workshop entitled the "Science of Deception: Integration of Practice and Theory", held in Arlington, VA, in July 2003. She shared organizational tasks for this affair with Kirk Hubbard, Chief of the Research & Analysis Branch, Operational Assessment Division of the CIA. One agenda item at this workshop was to discuss new ways to utilize drugs and sensory bombardment techniques to break down interrogatees.

Here's one example of the workshop's "thematic scenarios":

# How do we find out if the informant has knowledge of which s/he is not aware?

# How important are differential power and status between witness and officer?

# What pharmacological agents are known to affect apparent truth-telling behavior?....

# What are sensory overloads on the maintenance of deceptive behaviors? How might we overload the system or overwhelm the senses and see how it affects deceptive behaviors?

Some time back, I wrote to some of the key APA officials involved in this workshop, but they never responded to my queries. That includes an email to the APA ethics director, Stephen Behnke, as well.

Now that we've gotten to the truth drugs, the sensory overwhelm and "overload of [the] system", it feels time to stop, to wash off the ordure, if nothing else.

From the current perspective of recent revelations on the torture scandal, from the OLC memos to the release of the full SASC report, it's clear that there's much more to be revealed. For instance, what role did APA play in the operational planning that resulted in the various torture programs? (For it's also clear now, that there was more than one such program, i.e., the "enhanced interrogation program" outlined by the Bybee memo, and the JTF-GTMO interrogation plan forwarded to the Joint Chiefs of Staff by General James T. Hill, Commander at SOUTHCOM, in late October 2002.)

Will we ever hear more about the double game played by the likes of Banks? Or will we know the real behind-the-scenes story about PENS? What exactly did go on at that CIA/RAND/APA July 2003 meeting, and what psychologists, psychiatrists and others were present, discussing ways to implement torture? Will Susan Brandon be called to the stand? Or Scott Shumate? And then there are the charges by Jane Mayer and others that yet another former APA president, Martin Seligman, was involved in teaching theories of "learned helplessness" to SERE psychologists-cum-torturers, James Mitchell and Bruce Jessen.

We won't probably get to know much of this information unless investigations are begun, and soon, before all the dead bodies are buried, and the political opening for this vital social endeavor is closed for another generation.

Extra addition (5/9/09): Earlier this week the PENS e-mail listserv was posted online as part of an article simultaneously posted at Salon.com and ProPublica. Researchers and the curious are encouraged to check it out.