Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program

by Jason Leopold and Jeffrey Kaye, originally posted at Truthout, 10/14/2010

In 2002, as the Bush administration was turning to torture and other brutal techniques for interrogating "war on terror" detainees, Deputy Defense Secretary Paul Wolfowitz loosened rules against human experimentation, an apparent recognition of legal problems regarding the novel strategies for extracting and evaluating information from the prisoners.

Wolfowitz issued his directive on March 25, 2002, about a month after President George W. Bush stripped the detainees of traditional prisoner-of-war protections under the Geneva Conventions. Bush labeled them "unlawful enemy combatants" and authorized the CIA and the Department of Defense (DoD) to undertake brutal interrogations.

Despite its title - "Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research" - the Wolfowitz directive weakened protections that had been in place for decades by limiting the safeguards to "prisoners of war."

"We're dealing with a special breed of person here," Wolfowitz said about the war on terror detainees only four days before signing the new directive.

One former Pentagon official, who worked closely with the agency's ex-general counsel William Haynes, said the Wolfowitz directive provided legal cover for a top-secret Special Access Program at the Guantanamo Bay prison, which experimented on ways to glean information from unwilling subjects and to achieve "deception detection."

"A dozen [high-value detainees] were subjected to interrogation methods in order to evaluate their reaction to those methods and the subsequent levels of stress that would result," said the official.

A July 16, 2004 Army Criminal Investigation Division (CID) report obtained by Truthout shows that between April and July 2003, a "physiological warfare specialist" atached to the military's Survival, Evasion, Resistance and Escape (SERE) program was present at Guantanamo. The CID report says the instructor was assigned to a top-secret Special Access Program.

It has been known since 2009, when President Barack Obama declassified some of the Bush administration's legal memoranda regarding the interrogation program, that there were experimental elements to the brutal treatment of detainees, including the sequencing and duration of the torture and other harsh tactics.

However, the Wolfowitz directive also suggests that the Bush administration was concerned about whether its actions might violate Geneva Conventions rules that were put in place after World War II when grisly Nazi human experimentation was discovered. Those legal restrictions were expanded in the 1970s after revelations about the CIA testing drugs on unsuspecting human subjects and conducting other mind-control experiments.

For its part, the DoD insists that it "has never condoned nor authorized the use of human research testing on any detainee in our custody," according to spokeswoman Wendy Snyder.

However, from the start of the war on terror, the Bush administration employed nontraditional methods for designing interrogation protocols, including the reverse engineering of training given to American troops trapped behind enemy lines, called the SERE techniques. For instance, the near-drowning technique of waterboarding was lifted from SERE manuals.

Shielding Rumsfeld

Retired US Air Force Capt. Michael Shawn Kearns, a former SERE intelligence officer, said the Wolfowitz directive appears to be a clear attempt to shield then-Defense Secretary Donald Rumsfeld from the legal consequences of "any dubious research practices associated with the interrogation program."

Scott Horton, a human rights attorney and constitutional expert, noted Wolfowitz's specific reference to "prisoners of war" as protected under the directive, as opposed to referring more generally to detainees or people under the government's control.

"At the time that Wolfowitz was issuing this directive, the Bush administration was taking the adamant position that prisoners taken in the' war on terror' were not 'prisoners of war' under the Geneva Conventions and were not entitled to any of the protections of the Geneva Conventions.

"Indeed, it called those protections 'privileges' that were available only to 'lawful combatants.' So the statement [in the directive] that 'prisoners of war' cannot be subjects of human experimentation ... raises some concerns - why was the more restrictive term 'prisoners of war' used instead of 'prisoners' for instance."

The Wolfowitz directive also changed other rules regarding waivers of informed consent. After the scandals over the CIA's MKULTRA program and the Tuskegee experiments on African-Americans suffering from syphilis, Congress passed legislation known as the Common Rule to provide protections to human research subjects.

The Common Rule "requires a review of proposed research by an Institutional Review Board (IRB), the informed consent of research subjects, and institutional assurances of compliance with the regulations."

Individuals who lack the capacity to provide "informed consent" must have an IRB determine if they would benefit from the proposed research. In certain cases, that decision could also be made by the subject's "legal representative."

However, according to the Wolfowitz directive, waivers of informed consent could be granted by the heads of DoD divisions.

Professor Alexander M. Capron, who oversees human rights and health law at the World Health Organization, said the delegation of the power to waive informed consent procedures to Pentagon officials is "controversial both because it involves a waiver of the normal requirements and because the grounds for that waiver are so open-ended."

The Wolfowitz directive also changes language that had required DoD researchers to strictly adhere to the Nuremberg Directives for Human Experimentation and other precedents when conducting human subject research.

The Nuremberg Code, which was a response to the Nazi atrocities, made "the voluntary consent of the human subject ... absolutely essential." However, the Wolfowitz directive softened a requirement of strict compliance to this code, instructing researchers simply to be "familiar" with its contents.

"Why are DoD-funded investigators just required to be 'familiar' with the Nuremberg Code rather than required to comply with them?" asked Stephen Soldz, director of the Center for Research, Evaluation and Program Development at Boston Graduate School of Psychoanalysis.

Soldz also wondered why "enforcement was moved from the Army Surgeon General or someone else in the medical chain of command to the Director of Defense Research and Engineering" and why "this directive changed at this time, as the 'war on terror' was getting going."

Soldz is co-author of a report published in June by the international doctors' organization, Physicians for Human Rights (PHR), which found that high-value detainees who were subjected to brutal torture techniques by the CIA were used as "guinea pigs" to gauge the effectiveness of the various "enhanced interrogation" methods. PHR told Truthout it first examined the Wolfowitz directive and changes Congress made to 10 USC 980, the law that governs how the Defense Department spends federal funds on human experimentation, in 2008 while preparing its report, but did not cite either because the group could not explain its significance.

Treating Soldiers

The original impetus for the changes seems to have related more to the use of experimental therapies on US soldiers facing potential biological and other dangers in war zones.

The House Armed Services Committee proposed amending the law on human experimentation prior to the 9/11 attacks. But the Bush administration pressed for the changes after 9/11 as the United States was preparing to invade Afghanistan and new medical products might be needed for soldiers on the battlefield without their consent, said two former officials from the Defense Intelligence Agency.

Yet, there were concerns about the changes even among Bush administration officials. In a September 24, 2001, memo to lawmakers, Bush's Office of Management and Budget (OMB) said the "administration is concerned with the provision allowing research to be conducted on human subjects without their informed consent in order to advance the development of a medical product necessary to the armed forces."

The OMB memo said the Bush administration understood that the DoD had a "legitimate need" for "waiver authority for emergency research," but "the provision as drafted may jeopardize existing protections for human subjects in research, and must be significantly narrowed."

However, the broader language moved forward, as did planning for the new war on terror interrogation procedures.

In December 2001, Pentagon general counsel Haynes and other agency officials contacted the Joint Personnel Recovery Agency (JPRA), which runs SERE schools for teaching US soldiers to resist interrogation and torture if captured by an outlaw regime. The officials wanted a list of interrogation techniques that could be used for detainee "exploitation," according to a report released last year by the Senate Armed Services Committee.

These techniques, as they were later implemented by the CIA and the Pentagon, were widely discussed as "experimental" in nature.

Bryan Thomas, a spokesman for the Senate Armed Services Committee, declined to comment on the Wolfowitz directive.

Back in Congress, the concerns from the OMB about loose terminology were brushed aside and the law governing how the DoD spends federal funds on human expirementation and research, was amended to give the DoD greater leeway regarding experimentation on human subjects.

A paragraph to that law, 10 USC 980, which had not been changed since it was first enacted in 1972, was added authorizing the defense secretary to waive "informed consent" for human subject research and experimentation. It was included in the 2002 Defense Authorization Act passed by Congress in December 2001.

The changes to the "informed consent" section of the law were in direct contradiction to presidential and DoD memoranda issued in the 1990s that prohibited such waivers related to classified research. A memo signed in 1999 by Secretary of Defense William Cohen called for the prohibitions on "informed consent" waivers to be added to the Common Rule regulations covering DoD research, but it was never implemented.

Congressional Assistance

As planning for the highly classified Special Access Program began to take shape, most officials in Congress appear to have averted their eyes, with some even lending a hand.

The ex-DIA officials said the Pentagon briefed top lawmakers on the Senate Defense Appropriations Committee in November and December 2001, including the panel's chairman Sen. Daniel Inouye (D-Hawaii) and his chief of staff Patrick DeLeon, about experimentation and research involving detainee interrogations that centered on "deception detection."

To get a Special Access Program like this off the ground, the Pentagon needed DeLeon's help, given his long-standing ties to the American Psychological Association (APA), where he served as president in 2000, the sources said.

According to former APA official Bryant Welch, DeLeon's role proved crucial.

"For significant periods of time DeLeon has literally directed APA staff on federal policy matters and has dominated the APA governance on political matters," Welch wrote. "For over twenty-five years, relationships between the APA and the Department of Defense (DOD) have been strongly encouraged and closely coordinated by DeLeon.

"When the military needed a mental health professional to help implement its interrogation procedures, and the other professions subsequently refused to comply, the military had a friend in Senator Inouye's office, one that could reap the political dividends of seeds sown by DeLeon over many years."

John Bray, a spokesman for Inuoye, said in late August he would look into questions posed by Truthout about the Wolfowitz directive and the meetings involving DeLeon and Inuoye. But Bray never responded nor did he return follow-up phone calls and emails. DeLeon did not return messages left with his assistant.

Legal Word Games 

Meanwhile, in January 2002, President Bush was receiving memos from then-Justice Department attorneys Jay Bybee and John Yoo as well as from Defense Secretary Rumsfeld and Bush's White House counsel Alberto Gonzales, advising Bush to deny members of al-Qaeda and the Taliban prisoner-of-war status under the Geneva Conventions.

Also, about a month before the Wolfowitz directive was issued, the Defense Intelligence Agency (DIA) asked Joint Forces Command if they could get a "crash course" on interrogation for the next interrogation team headed out to Guantanamo, according to the Armed Services Committee's report. That request was sent to Brig. Gen. Thomas Moore and was approved.

Bruce Jessen, the chief psychologist of the SERE program, and Joseph Witsch, a JPRA instructor, led the instructional seminar held in early March 2002.

The seminar included a discussion of al-Qaeda's presumed methods of resisting interrogation and recommended specific methods interrogators should use to defeat al-Qaeda's resistance. According to the Armed Services Committee report, the presentation provided instructions on how interrogations should be conducted and on how to manage the "long term exploitation" of detainees.

There was a slide show, focusing on four primary methods of treatment: "isolation and degradation," "sensory deprivation," "physiological pressures" and "psychological pressures."

According to Jessen and Witsch's instructor's guide, isolation was the "main building block of the exploitation process," giving the captor "total control" over the prisoner's "inputs." Examples were provided on how to implement "degradation," by taking away a prisoner's personal dignity. Methods of sensory deprivation were also discussed as part of the training.

Jessen and Witsch denied that "physical pressures," which later found their way into the CIA's "enhanced interrogation" program, were taught at the March meeting.

However, Jessen, along with Christopher Wirts, chief of JPRA's Operational Support Office, wrote a memo for Southern Command's Directorate of Operations (J3), entitled "Prisoner Handling Recommendations," which urged Guantanamo authorities to take punishment beyond "base line rules."

So, by late March 2002, the pieces were in place for a strategy of behavior modification designed to break down the will of the detainees and extract information from them. Still, to make the procedures "legal," some reinterpretations of existing laws and regulation were needed.

For instance, attorneys Bybee and Yoo would narrow the definition of "torture" to circumvent laws prohibiting the brutal interrogation of detainees.

"Vulnerable" Individuals

In his directive, Wolfowitz also made subtle, but significant, word changes. While retaining the blanket prohibition against experimenting on prisoners of war, Wolfowitz softened the language for other types of prisoners, using a version of rules about "vulnerable" classes of individuals taken from regulations meant for civilian research by the Department of Health and Human Services (DHHS).

This research and experimentation examined physiological markers of stress, such as cortisol, and involved psychologists under contract to the CIA and the military who were experts in the field, the ex-DIA officials said.

One study, called "The War Fighter's Stress Response," was conducted between 2002 and 2003 and examined physiological measurements of mock torture subjects drawn from the SERE program and other high-stress military personnel, such as Special Forces Combat Divers.

Researchers measured cortisol and other hormone levels via salivary swabbing and blood samples, a process that also was reportedly done to war on terror detainees.

Three weeks after the Wolfowitz directive was signed, SERE psychologist Jessen produced a Draft Exploitation Plan for use at Guantanamo. According to the Armed Services Committee's report, JPRA was offering its services for "oversight, training, analysis, research, and [tactics, techniques, and procedures] development" to Joint Forces Command Deputy Commander Lt. Gen. Robert Wagner. (Emphasis added.)

There were other indications that research was an important component of JPRA services to the DoD and CIA interrogation programs. When three JPRA personnel were sent to a Special Mission Unit associated with Joint Special Operations Command (JSOC) in August 2003 for what was believed to be special training in interrogation, one of the three was JPRA's manager for research and development.

Three former top military officials interviewed by the Armed Services Committee have described Guantanamo as a "battle lab."

According to Col. Britt Mallow, the commander of the Criminal Investigative Task Force (CITF), he was uncomfortable when Guantanamo officials Maj. Gen. Mike Dunleavy and Maj. Gen. Geoffrey Miller used the term "battle lab," meaning "that interrogations and other procedures there were to some degree experimental, and their lessons would benefit DoD in other places."

CITF's deputy commander told the Senate investigators, "there were many risks associated with this concept ... and the perception that detainees were used for some 'experimentation' of new unproven techniques had negative connotations."

In May 2005, a former military officer who attended a SERE training facility sent an email to Middle East scholar Juan Cole stating that "Gitmo must be being used as a 'laboratory' for all these psychological techniques by the [counter-intelligence] guys."

The Al-Qahtani Experiment

One of the high-value detainees imprisoned at Guantanamo who appears to have been a victim of human experimentation was Mohammed al-Qahtani, who was captured in January 2002.

A sworn statement filed by Lt. Gen. Randall M. Schmidt, al-Qahtani's attorney, said Secretary Rumsfeld was "personally involved" in the interrogation of al-Qahtani and spoke "weekly" with Major General Miller, commander at Guantanamo, about the status of the interrogations between late 2002 and early 2003.

The treatment of al-Qahtani was cataloged in an 84-page "torture log"  that was leaked in 2006. The torture log shows that, beginning in November 2002 and continuing well into January 2003, al-Qahtani was subjected to sleep deprivation, interrogated in 20-hour stretches, poked with IVs and left to urinate on himself.

Gitanjali S. Gutierrez, an attorney with the Center for Constitutional Rights who represents al-Qahtani, had said in a sworn declaration that his client, was subjected to months of torture based on verbal and written authorizations from Rumsfeld.

"At Guantánamo, Mr. al-Qahtani was subjected to a regime of aggressive interrogation techniques, known as the 'First Special Interrogation Plan,'" Gutierrez said. "These methods included, but were not limited to, 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs."

In addition, the Senate Armed Services Committee report said al-Qahtani's treatment was viewed as a potential model for other interrogations.

In his book, "Oath Betrayed," Dr. Steven Miles wrote that the meticulously recorded logs of al-Qahtani's interrogation and torture focus "on the emotions and interactions of the prisoner, rather than on the questions that were asked and the information that was obtained."

The uncertainty surrounding these experimental techniques resulted in the presence of medical personnel on site, and frequent and consistent medical checks of the detainee. The results of the monitoring, which likely included vital signs and other stress markers, would also become data that could be analyzed to understand how the new interrogation techniques worked.

In January 2004, the Director of Defense Research and Engineering (DDR&E) initiated a DoD-wide review of human subjects protection policies. A Navy slide presentation at DoD Training Day on November 14, 2006, hinted strongly at the serious issues behind the entire review.

The Navy presentation framed the problem in the light of the history of US governmental "non-compliance" with human subjects research protections, including "US Government Mind Control Experiments - LSD, MKULTRA, MKDELTA (1950-1970s)"; a 90-day national "stand down" in 2003 for all human subject research and development activities "ordered in response to the death of subjects"; as well as use of "unqualified researchers."

The Training Day presentation said the review found the Navy "not in full compliance with Federal policies on human subjects protection." Furthermore, DDR&E found the Navy had "no single point of accountability for human subject protections."

DoD refused to respond to questions regarding the 2004 review. Moreover, Maj. Gen. Ronald Sega, who at the time was the DDR&E, did not return calls for comment.

Ongoing Research

Meanwhile, the end of the Bush administration has not resulted in a total abandonment of the research regarding interrogation program.

Last March, Director of National Intelligence Dennis Blair, who recently resigned, disclosed that the Obama administration's High-Value Detainee Interrogation Group (HIG), planned on conducting "scientific research" to determine "if there are better ways to get information from people that are consistent with our values."

"It is going to do scientific research on that long-neglected area," Blair said during testimony before the House Intelligence Committee. He did not provide additional details as to what the "scientific research" entailed.

As for the Wolfowitz directive, Pentagon spokeswoman Snyder said it did not open the door to human experimentation on war on terror detainees.

"There is no detainee policy, directive or instruction - or exceptions to such - that would permit performing human research testing on DoD detainees," Snyder said. "Moreover, none of the numerous investigations into allegations of misconduct by interrogators or the guard force found any evidence of such activities."

Snyder added that DoD is in the process of updating the Wolfowitz directive and it will be "completed for review next year."

Reposted under guidelines of Creative Commons Attribution - Non-Commercial 3.0 License.

Statement by Committee to Stop FBI Repression

The video presents a statement on behalf of the Committee to Stop FBI Repression, a coalition group formed in response to a series of raids by the FBI against anti-war and international solidarity activists in Chicago and Minneapolis. According to a story by Kevin Gosztola at The Seminal/Firedoglake, Chicago activists Stephanie Weiner (see video above), Joe Iosbaker "and three other activists had been called to testify before a grand jury on October 5th.... Iosbaker reported, 'Nine others who have dates scheduled for later this month have also submitted letters invoking their right not to testify.' And declared, 'Today, we are here to state to the press that we too have nothing to say to a grand jury.'"

None of the fourteen activists asked to testify before a grand jury have been charged with anything, and the coalition is vowing not to testify, refusing to take part in the government's "fishing expedition" against antiwar and other political activists. Weiner makes the point that this kind of governmental repression has a long history, and she vowed she and others would "push back against this attack," and "refuse to be silent" about the government's actions.

The Committee’s statement outlined the U.S. government’s history of using grand juries as tools of repression:

"The grand jury has been used as a tool of political repression against many movements for social change in this country. From the pre-civil war abolitionist movement to the Civil Rights movements, the movement against the war in Vietnam, the American Indian Movement, the Central America solidarity movement, the Puerto Rican Independence movement, animal rights and environmental movements, there have been many targets of political repression and grand jury inquisition."

In a related story by Bill Quigley and Rachel Meeropol at Truthout, Pennsylvania Office of Homeland Security (OHS) authorities have released copies of contracted intelligence briefings from an Israeli-connected company, the Institute of Terrorism Research and Response (ITRR), which analyzes a number of left and liberal activist groups that ITRR has been monitoring on behalf of Pennsylvania OHS. The list includes "MoveON.org, the Ruckus Society, Immokalee Workers, the new SDS, Jobs with Justice, the Brandywine Peace Community, ANSWER, PETA, Stop Huntington Animal Cruelty, MOVE, The Yes Men, Poor People's Economic Human Rights Campaign, Climate Ground Zero, the Rainforest Action Network, pro-Palestinian Groups, Puerto Rican nationalists, prisoners' rights organizations, citizen conservation groups and immigration activists opposing Arizona's crazy attempts to criminalize all noncitizens."

Marian Wang at ProPublica broke the story last month, and since then the director of Pennsylvania's OHS has resigned and the state governor has apologized. But while the exposés and the aftermath of the ProPublica reporting is good news, as the FBI raids and subsequent grand jury summonses demonstrate, state repression against political opponents who stand at all outside the mainstream are being targeted in Barack Obama's America.

Please support these activists with words, deeds, and contributions. They are being targeted today, but tomorrow it could be you or me.

From Past to the Present-day: Guatemala Revelations & CIA/DoD Experimentation

Headlines were made last week concerning revelations of a 64-year-old scandal only recently discovered by historian Susan M. Reverby of Wellesley College. Reverby discovered that a key researcher who was part of the infamous Tuskegee Syphilis experiment had also headed a project in Guatemala that deliberately infected prisoners and insane asylum inmates with various venereal diseases, ostensibly in order to study how the diseases were transmitted and if they human contagion could be blocked.

Inoculation was difficult, the researchers found, and they had to result to making abrasions and dripping rabbit-infected pus on the genitals of human beings, some of whom had no idea what was being done to them, to try and get the desired results. The study was inconclusive, and ended after only a few years, but not before more than 700 individuals had been inoculated. The human subjects were supposed to be treated with penicillin if they contracted any disease, but record keeping and controls on the project were poor. None received adequate informed consent. Moreover, the researchers involved, working for the U.S. Public Health Service, knew the experiment would never pass muster if done in the United States. A similar experiment in U.S. prisons in 1911 was shut down because of controversy over the unethical experimentation upon prisoners. See Reverby's preprint version (PDF) of her academic article for a much fuller discussion of what occurred.

These revelations are only the latest in an ongoing series of scandals regarding government illegal and unethical experimentation. Earlier this year, investigative journalist H.P. Albarelli detailed the many activities of the government its decades-long mind control project, as well as the use of drugs in clandestine operations in his book A Terrible Mistake: The Murder of Frank Olson and the CIA's Secret Cold War. (Albarelli was also a guest at FDL Book Salon last January.) Albarelli's book also covered the LSD poisoning by the CIA of the entire French village Pont-St.-Esprit in August 1951, a story picked up only a few months ago by BBC.

There are plenty of other underreported and important stories out there on the terrible scandal that has been U.S. illegal experimentation. The Department of Defense experimented on over 7000 soldiers at its Edgewood Arsenal, part of "a secret testing program in which U.S. military personnel were deliberately exposed to chemical and biological weapons and other toxins without informed consent." Troops were tested with "nerve gas, psychochemicals, and thousands of other toxic chemical or biological substances and perhaps most gruesomely, the insertion of septal implants in the brains of subjects in a ghastly series of mind control experiments that went awry." The program ended in 1976 after approximately twenty years. Remarkably, a lawsuit by veterans is still alive and wending its way through the courts.

It was approximately only ten years ago when another DoD experiment scandal became big news. Project Shad was a DoD experiment that exposed at least 4,000 Navy men to various chemical agents and decontaminant chemicals, "including Bacillus globigii (BG), Coxiella burnetii [which causes Q fever], Pasteurella tularensis [which causes tularemia or 'rabbit fever'], Zinc Cadmium Sulfide, Beta-propriolactone, Sarin, VX, Escherichia Coli (EC), Serratia Marcescens (SM), Sodium Hydroxide, Peracetic acid, Potassium hydroxide, Sodium hypochlorite, 'tracer amounts' of radioactivity and asbestos, [and] Methylacetoacetate." So outrageous were these experiments, denied by the government for 35 years, that there were Congressional hearings (PDF) in 2002, and major news reports by CBS Evening News. Today, the story has dropped off the radar, though thanks to some Congressional pressure, and the activism of some of the Shad victims, veterans and the government can get more information on Shad and its land-based twin experiment, Project 112, at this Veterans Administration webpage.

The government use of drugs and other experimental torture techniques during the Bush administration has led to a number of studies and reports. Most recently, the DoD Inspector General concluded an investigation on the drugging of detainees, or so-called "unprivileged enemy combatants" in DoD custody. But the results of the review remain classified, and the fact the report was even ever concluded was kept from public knowledge for many months. In 2008, now-Vice President Joesph Biden had been one of three senators asking for an investigation into the drugging charges. Biden's office at the White House refused to reply to questions for comment on the report's existence or what have been revealed by the investigation.

Finally, we have the ongoing question of human experimentation by the CIA as part of the construction of and operations concerning their "enhanced interrogation" torture program. Earlier this year, Physicians for Human Rights released a peer-reviewed white paper detailing some of the CIA actions. As the following press release by PHR explains, there is a direct line of scientific malfeasance and unethical behavior that runs from the Guatemala experiments of the 1940s to the CIA and DoD illegal experimentation of our era. In an excellent article on the topic by one of the PHR report authors, psychologists Stephen Soldz, explains:

Secretary of Health and Human Services Secretary Kathleen Sebelius was notified by letter of these abuses, abuses that violate the same research ethics principles — informed consent and minimization of harm — that were violated by the Guatemalan STD research. But, rather than express her outrage at this “reprehensible research,” Secretary Sebelius maintained her silence, as did every government official, other than a CIA press spokesman who denied our claims without presenting the slightest bit of evidence. Secretary Sebelius’ department referred an official complaint regarding unethical CIA research to the very same CIA that had already publicly denied the charges. So far, no government agency has committed to investigating these CIA abuses, which occurred far more recently than the Guatemalan horrors.

The letter denying the complaint and referring it back to the CIA was signed by Howard Koh, Assistant Secretary of Health at the U.S. Public Health Service, the same agency that conducted the Guatemala experiments decades ago (and conveniently never published the results).

What follows is a press release from Physicians for Human Rights (courtesy Stephen Soldz's website):

Physicians for Human Rights Decries Obama Administration’s Double Standard on Illegal Human Experimentation; 1946 Guatemala Case and Alleged CIA Experimentation on Black Site Detainees Both Deserve Equal Justice

Cambridge, MA–In the wake of revelations about America’s experimentation on unwilling human subjects in Guatemala in 1946, Physicians for Human Rights (PHR) calls on President Obama to equally investigate credible evidence of illegal human subject research on detainees in CIA custody during the Bush administration.

“What was done to 700 Guatemalans 64 years ago without their consent is appalling,” said Physicians for Human Rights CEO Frank Donaghue. “But President Obama’s apologies for the Guatemala case ring hollow when the White House refuses to investigate similar crimes that allegedly occurred in the past decade. The credible evidence of illegal human experiments by the CIA on black site detainees deserves equal attention and justice.”

PHR’s June 2010 report, Experiments in Torture: Human Subject Research and Evidence of Experimentation in the ‘Enhanced’ Interrogation Program, was the first peer-reviewed analysis of evidence indicating that the Bush administration allegedly conducted illegal human research and experimentation on prisoners in US custody. The research was apparently used to insulate interrogators from potential prosecution and to standardize the use of torture.

“The conduct of health professionals in both cases—Guatemala and the CIA black sites—makes a mockery of bedrock principles of medical ethics and the law,” stated Scott Allen, MD, lead medical author of the PHR report. “Human subject research protections mean nothing if they don’t apply to all people all of the time—regardless of politics.”

CIA physicians and psychologists collected and analyzed data on the physical and psychological impact of the “enhanced” interrogation tactics, analysis which became the basis of Department of Justice memos justifying the torture program. This alleged program of illegal human subject experimentation violates medical ethics, federal law, and international research standards, including the Nuremberg Code and the Common Rule. These practices could, in some cases, constitute war crimes and crimes against humanity.

“While the proposed federal commission on the abuses in Guatemala is welcome, the American people must also learn the truth about what was done in our name over the past decade to detainees in CIA custody,” said Nathaniel Raymond, Director of PHR’s Campaign Against Torture and lead author of the PHR report. “The Departments of Justice and Health and Human Services must investigate these credible allegations of human experimentation on detainees by the CIA with the same mandate as the Guatemala case.”

PHR calls on President Obama, working with Congress, to appoint a federal commission to investigate what American physicians and psychologists did to people subjected to torture in US custody. John Durham, the Department of Justice prosecutor tasked with investigating the destruction of CIA interrogation videotapes as well as interrogations that went beyond what was authorized by the Department of Justice memos, should also be given a clear mandate to probe allegations of illegal research at the black sites, Guantanamo and elsewhere.

Also posted at FDL/The Seminal

Slapping David Shedd, or How I Learned to Love the CIA Interrogation Program

Originally posted at FDL/The Seminal

Bob Woodward's new book, Obama's Wars, is full of the same insider tales of government gossip as his previous books. One reads Woodward to pick out the various gems strewn along the way, cognizant that even those are the products of spin manufactured by the various principals involved. A particularly interesting nugget concerns the way the intelligence agencies passed on information about their torture program to the incoming Obama administration.

Woodward spends precious few pages on this subject, and the anecdotes involved can't be relied upon to provide a real study of just what went on. But the couple of stories provided are juicy enough.

According to Woodward, on December 9, 2008, President-elect Barack Obama was shepherded into a tiny SCIF office to meet with CIA Director Michael Hayden and Director of National Intelligence Michael O'Connell. "Hayden sat directly across from Obama at a table so narrow that they were uncomfortably close to each other." Obama had brought Joe Biden, Jim Jones, Greg Craig, and "several others." Hayden and O'Connell reviewed various top secret clandestine and anti-terrorism programs, secret operations against North Korea, Iran, Pakistan, Iraq, etc. Craig was apparently "shocked" when Hayden told Obama's group that the U.S. "owned" the political structure and security forces of Iraq.

Be that as it may, Hayden, who apparently ran the briefing, got to their review of the CIA's Rendition, Detention and Interrogation (RDI) program at the end of the meeting. While Obama apparently sat mostly impassively, Biden and the others were not convinced by CIA claims they got promises of "no torture" from the countries to which they sent kidnapped victims in the "war on terror." Hayden also noted that the CIA "black sites" had been shut down and "all the prisoners transferred to Guantánamo Bay, Cuba." This timeline conflicts with the claim by Obama that he had closed the black sites himself in his early executive order on detentions.

Then the discussion wheeled around to the CIA's "enhanced interrogation techniques" (EIT). At this point, Woodward's narrative gets a bit confusing. Hayden tells Obama that, per a 2006 finding by President Bush, only six of the 13 original EITs remained in use. Woodward reminds us of the original 13 in an endnote. They are Dietary manipulation; Forced nudity; Attention grasp; Walling (slamming the prisoner into a wall multiple times); Facial hold; Facial or insult slap; Abdominal slap; Cramped Confinement; Wall standing (a kind of stress position); Stress positions proper; Water dousing; Sleep deprivation; and Waterboarding. (What happened to the insects in a box, Bob?) Woodward does describe the sleep deprivation in a way consistent with my contention in May 2009 that "sleep deprivation" was always combined with stress positions, shackling, partial nudity or humiliation, and dietary manipulation or partial starvation. This aspect of sleep deprivation, never totally emphasized by Woodward in the main text of the book, must be kept in mind when Woodward has Hayden tell Obama that the attenuated version of the EITs (which includes sleep deprivation) are more than enough to "break" "suspected terrorists" in "less than a week."

Obama asked what the remaining six EITs were? And Hayden's reported answer appears to veer off from the EITs.

Hayden said: Isolation of the detainee; noise or loud music; and lights in the cells 24 hours a day. There was limited use of shackles when moving a prisoner or when the prisoner was a danger. In addition, blindfolds were used when moving prisoners or when the prisoners might gain information that could compromise the security of the facility.

"David, stand up please," Hayden said to David Shedd, the DNI's deputy director for policy. Shedd rose. Hayden gently slapped his face, then shook the deputy DNI.

It was as rough as what might happen in "Little League football," Hayden said. [pg. 54]

From reading this account, apart from the hilarious bit of play-acting with the ever-obliging David Shedd, it's difficult to see what six of the EITs were retained, and what, besides waterboarding, was eliminated. For one thing, Hayden's reply focuses on techniques that were not part of the EITs -- isolation, sensory overload, and partial sensory deprivation -- while demonstrating by a slap to O'Connell's deputy that "Facial or insult slap" was still in use.

Hayden then makes his play to keep "these methods" under an Obama administration, because "the very existence of the interrogation program was more important than its content." The CIA director told the President-elect, "Terrorists would know they faced a more severe interrogation if picked up by the CIA than by the military, which used the Army Field Manual."

But how would the terrorists know this, when even I can't figure out what exactly the U.S. intelligence agencies do? Woodward quotes Hayden in an unintentional moment of self-revelation. For the CIA, the form is more important that the content. The "terrorists" don't really know, but they believe they know they can expect something terrible, something especially bad. The point of this is to engender fear. And fear is an essential component to psychological torture. It enhances the effects of sensory overload and sensory deprivation, and contributes to the psychological breakdown of the victim. This is not a theory, but was the conclusion of years of research by the U.S. government into interrogation and torture. The use of SERE trainees as experimental subjects for coercive interrogation and techniques did not begin in 2001 or 2002 -- it began at least over 50 years ago.

In 1956, in the pages of an obscure academic journal, Sociometry, I.E. Farber, Harry F. Harlow, and psychiatrist Louis Jolyon West published a classic work on interrogation, Brainwashing, Conditioning, and DDD (Debility, Dependency, and Dread) (BCD). It was based on a report for the Study Group on Survival Training, paid for by the U.S. Air Force. (See West LJ., Medical and psychiatric considerations in survival training. In Report of the Special Study Group on Survival Training (AFR 190 16). Lackland Air Force Base, Tex: Air Force Personnel and Training Research Centers; 1956.) This research linked Air Force “Survival” training, later called SERE, with torture techniques, and as we will see, use of such techniques by the CIA, something we would see again decades later in the Mitchell-Jessen “exploitation” plan.

BCD examined the various types of stress undergone by prisoners, and narrowed them down to “three important elements: debility, dependency, and dread”.

Debility was a condition caused by “semi-starvation, fatigue, and disease”. It induced “a sense of terrible weariness”.

Dependency on the captors for some relief from their agony was something “produced by the prolonged deprivation of many of the factors, such as sleep and food… [and] was made more poignant by occasional unpredictable brief respites.” The use of prolonged isolation of the prisoner, depriving an individual of expected social intercourse and stimulation, “markedly strengthened the dependency”.

Dread probably needs no explanation, but BCD described it as “chronic fear…. Fear of death, fear of pain, fear of nonrepatriation, fear of deformity of permanent disability…. even fear of one’s own inability to satisfy the demands of insatiable interrogators.”

.... This form of carrot and stick torture may not seem that sophisticated, but it is the use of basic nervous system functioning and human instinctual need that makes it “scientific”. The need for sensory stimulation and social interaction, the need to eat, to sleep, to reduce fear, all of these are used to build dependencies upon the captor, using the fact that “the strengthening effects of rewards — in this instance the alleviation of an intensely unpleasant emotional state — are fundamentally automatic” [p. 278]. This impairment of higher cognitive states and disruption and disorganization of the prisoner’s self-concept, producing something like “a pathological organic state”, was subsequently modified and used by the CIA in its interrogations of countless individuals. If more brutal forms of torture sometimes were used, especially by over-eager foreign agents or governments, DDD remained the gold standard, the programmatic core of counterintelligence interrogation at the heart of the CIA’s own intelligence manuals.

Now Bob Woodward is not going to explain all that. Being a stenographer for spooks and politicians, he offers very little analysis at all. His fable of how Obama got briefed on the use of torture by the CIA, and Obama's subsequent decision to ban all the EITs and utilize the Army Field Manual may bear some elements of truth. It seems certain Obama knows very little if any of the historical material I adverted to above. And Barack Obama, like much of America, may not know that the Army Field Manual contains the very techniques that Hayden said the CIA was using (isolation, sensory overload, sleep deprivation, driving up of fear). The operative word here is ignorance: ignorance about what has gone on and is going on.

This nation has not gotten the full truth about this country's torture program, past, present, and plans for the future. As the commentators latch onto the upcoming election with ever-greater avidity, it appears certain that these issues will get shoved even farther onto the back burner. We can't let that happen. The City of Berkeley has announced that October 10-16 will be "Say No to Torture Week." I'll be participating with a slew of other celebrities, bloggers, psychologists, and political activists to make it clear that "the community finds it unacceptable for an American torture apparatus to remain operational while those responsible remain unaccountable." What is your community doing?

Andy Worthington's Series: "Who Are the Remaining Prisoners in Guantánamo?"

What follows is one example of the summaries collected by Andy Worthington regarding the status and history of the detainees who remain at Guantánamo prison. Andy is presenting them in an eight part series. The story of Umar Abdulayev is taken from Part Five. Like many of the tales about the men still languishing in the U.S. detention site, it is a tale of wild, reckless policy and lawless subversion of U.S. and international law. I highly recommend readers follow the entire series, and send links to their friends, Facebook pages, etc.

Regarding Abdulayev's story, note the attempt by the Obama administration to repatriate a prisoner back to a country (Tajikistan in this case), where the prisoner refuses to return, for fear of persecution and/or torture. Already, the Obama administration (with Congressional notice in advance) has violated the Convention Against Torture and the Convention Relating to the Status of Refugees by forcibly repatriating Abdul Aziz Naji back to Algeria, despite his fear of attack by Islamic extremists in that country, and imprisonment or arrest by the Algerian government as a former Guantánamo prisoner. In fact, Naji was charged by the Algerian government, with unspecified charges, and ultimately returned to his family under government supervision. The former detainee told an Algerian newspaper that Guantánamo prisoners were tortured to give false confessions, and forced "to take some medicines for three months to drive them crazy, loosing [sic] memory and committing suicide."

ISN 257 Abdulayev, Umar (Tajikistan)
A refugee from Tajikistan, who had arrived in Afghanistan with his family in 1992 (when he was around 13 years old), Abdulayev was living in a refugee camp near Peshawar, Pakistan, in November 2001, when he was seized in a bazaar by operatives of Pakistan’s Inter Services Intelligence Directorate (ISI), who asked him for a bribe which he couldn’t pay, and then imprisoned him, and, it seems, made him copy information relating to insurgency and military activity into a series of notebooks that were then used to justify his detention as a terrorist. In June 2009, as Abdulayev’s habeas case neared the District Court, the Justice Department abruptly announced that they would “no longer defend his detention,” and that they “want[ed] US diplomats to arrange to repatriate him” This decision was distressing to Abdulayev and his lawyers for two reasons: firstly, because Abdulayev is terrified of returning to Tajikistan, as he was threatened by Tajik agents who visited him in Guantánamo; and secondly, because the Task Force’s decision also led the Justice Department to ask a judge to drop Abdulayev’s habeas petition, prompting his lawyers to point out that the Task Force’s decision was “not a determination that [Abdulayev’s] detention was or was not lawful,” and that it therefore “does nothing towards removing the stigma of being held in Guantánamo or being accused of being a terrorist by the United States.” As one of his lawyers, Andrew Moss, explained to me, the Justice Department’s maneuverings meant that the writ of habeas corpus was “effectively suspended.”

"Berkeley Says No to Torture" Week, October 10-16

I'm happy to announce that I will be participating with some great people during Berkeley's "Say No to Torture" week event, held mostly at the UC Berkeley campus. The week of activities was proposed via resolution by the Berkeley Peace and Justice Commission, which was passed by the Berkeley City Council on September 21, "making clear that the community finds it unacceptable for an American torture apparatus to remain operational while those responsible remain unaccountable."

Participants during the week of protests, readings, panel discussions, and film showings will include Barry Eisler, Jason Leopold, Andy Worthington, Marjorie Cohn, Ray McGovern, Justine Sharrock, Shahid Buttar, Mimi Kennedy, Adrianne Aron, Fr. Louis Vitale, and more. Sponsors of the various events include World Can't Wait, School of the Americas Watch (SOAW) East Bay/SF, National Lawyers Guild, Boalt Chapter (NLG-Boalt), Code Pink, Berkeley Fellowship of Unitarian Universalists Social Justice Committee, Progressive Democrats of America, Meiklejohn Civil Liberties Institute, and FireJohnYoo.org.

For more information, go to the website wesaynototorture.net. Also see the Facebook page here. Additionally, those interested should read Andy Worthington's post describing the importance of the event.

“Berkeley Says No to Torture” Week: EVENTS LIST

Sunday October 10, 2010, 7 pm: Author Readings and Discussion with Andy Worthington and Justine Sharrock.
Revolution Books, 2425 Channing Way, Berkeley.
Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and Justine Sharrock, author of Tortured: When Good Soldiers Do Bad Things, read from their books and discuss Guantánamo, the “War on Terror” and the corrosive effect of torture on US soldiers as well as the Bush administration’s victims. Also see the Facebook page here.

Monday October 11, 7 pm: Screening of “Outside the Law: Stories from Guantánamo.” Followed by Q&A with Andy Worthington.
Fellowship Hall, 1924 Cedar Street (at Bonita Avenue), Berkeley.
Andy Worthington, the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo,” described by Time Out as “a strong movie examining the imprisonment and subsequent torture of those falsely accused of anti-American conspiracy,” attends the screening, and will talk and answer questions afterwards. This event is sponsored by Berkeley Fellowship of Unitarian Universalists Social Justice Committee.

Tuesday October 12, daytime, 11:00 am: Protest action against John Yoo.
UC Berkeley Law (Boalt Hall), on Bancroft at College Avenue.
Protest at the location where John Yoo teaches constitutional law and a second class every Tuesday. Sponsored by World Can't Wait and others.
Location: Boalt Hall, 2778 Bancroft Way (at College Ave.)

Tuesday October 12, evening, 6:30-8:00 pm: The Giant John Yoo Debate.
UC Berkeley campus. Location and time TBA.
Join the World Can’t Wait, lawyers, law students, and other surprise guests for a real debate about John Yoo’s theories and legal work defending torture.

Wednesday Oct 13, 12:00 noon: Protest Action – Say No to Torture
Banner, posters provided. Sponsored by CodePink
Location: Marine Recruitment Station, 64 Shattuck Square, 1/2 block south of University Avenue

Wednesday October 13, 2010, 4:30 pm: Defying Torture - The Art of Dissent.
UC Berkeley Art Museum Theater, 2621 Durant Avenue, Berkeley.
A conversation with Peter Selz, art historian and Professor Emeritus of Art History at UC Berkeley, and political artist Clinton Fein, famous for his series, “Torture,” based on the Abu Ghraib photos, along with artist Richard Kamler.

Wednesday October 13, 2010, 7:00 pm: Roundtable – Writers on Torture: Barry Eisler, Andy Worthington, Justine Sharrock.
University Lutheran Church, 2425 College Ave., Berkeley.
Barry Eisler, best-selling thriller writer and author of the new rendition- and torture-based novel Inside Out joins Andy Worthington and Justine Sharrock to discuss fact, fiction, the crimes of the “War on Terror,” and approaches to writing about these topics and disseminating them to the public. Moderated by Shahid Buttar (Bill of Rights Defense Committee).

Thursday October 14, 2010, 7:00 pm: Forum on Torture and the Law, Torture and Human Rights, with Marjorie Cohn, Andy Worthington, Shahid Buttar and Debra Sweet.
Boalt Hall, UC Berkeley Law, Rm 105, 2778 Bancroft Way
Marjorie Cohn (author and past President of the National Lawyers Guild), Andy Worthington (journalist, author and filmmaker), Shahid Buttar (Bill of Rights Defense Committee), and Debra Sweet (National Director, the World Can’t Wait) discuss torture, human rights and the law. Moderated by Ray McGovern.

Friday October 15, 2010, afternoon, 1:30-3:00 pm: Panel: Torture, Human Experimentation, and the Department of Defense
Jason Leopold (Truthout) interviews psychologist, blogger, and activist Jeffrey Kaye.
Location: Booth Auditorium, UC Berkeley Law, 2778 Bancroft Way (at Piedmont)

Friday October 15, 2010, afternoon, 3:00-4:30 pm: Panel: Psychologists and Torture.
UC Berkeley Law (Boalt Hall) campus, Booth Auditorium, UC Berkeley Law, 2778 Bancroft Way (at Piedmont).
With anti-torture psychologists Adrianne Aron, Ruth Fallenbaum, Adrianne Aron, Pierre LaBossiere, and Patricia Isasa. Co-sponsored by School of the Americas Watch (SOAW) East Bay/SF. See Psychologists for an Ethical APA for more information on psychologists’ opposition to the torture program implemented by the Bush administration.

Friday October 15, 2010, evening, 7:00 pm: Reckoning with Torture - An Evening of Conscience with Andy Worthington, Marjorie Cohn, Ray McGovern, Ann Wright, Mimi Kennedy, devorah major, Jeffrey Kaye, Fr. Louis Vitale, Renee Saucedo, Jason Leopold, Kathy Roberts, Abdi Soltani and more.
UC Berkeley Law (Boalt Hall) campus, Booth Auditorium.
“Reckoning with Torture: An Evening of Conscience” contains a powerful script, originated by the ACLU and American PEN Center, based on memos and testimonies from the “War on Terror,” which has been produced in New York and Washington, D.C., but has never before been performed on the West Coast. Guests including peace activists Ray McGovern and Ann Wright, Mimi Kennedy, devorah major, Jeffrey Kaye and Jason Leopold of Truthout will be joining “Berkeley Says No to Torture” Week regulars Andy Worthington and Marjorie Cohn to read these powerful texts. This event is sponsored by the Boalt Alliance to Abolish Torture (BAAT) and the National Lawyers Guild, Boalt Chapter (NLG-Boalt), and the performance will be followed by a reception with the readers and audience. For ticket sales/reservations please email.

Saturday, Oct 16, 7:00 pm: “Pedro and the Captain”
Dramatic reading from the play by Mario Benedetti, with Mark McGoldrick and Youseef Elias, directed by Angelina Llongueras.  Performed in honor of "Berkeley Says No To Torture" Week.
Fireside Room, Live Oak Community Center, 1301 Shattuck Avenue

War Criminal Kissinger Top Speaker at State Department Conference

There was also a deficiency in imagination likely to circumscribe the value of any study by Kissinger of Kissinger. Asked about his role in the Cambodian war, in which an estimated five hundred thousand people died, he’d said, "I may have a lack of imagination, but I fail to see the moral issue involved." — Joseph Heller, Good as Gold (Kissinger’s original quote is from William Shawcross’s Sideshow: Kissinger, Nixon, and the Destruction of Cambodia)

Fred Branfman has a great article up over at AlterNet pillorying the State Department’s invitation to Henry Kissinger to address a conference on "the American Experience in Southeast Asia, 1946-1975." The conference was scheduled for September 29-30 at the George C. Marshall Conference Center at the U.S. Department of State. Along with bona fide war criminal Kissinger, the other invitees included current Special Representative for Afghanistan and Pakistan, Richard C. Holbrooke, and Former Deputy Secretary of State, and Former Director of National Intelligence John D. Negroponte.

It was only last April here at The Seminal/Firedoglake that I reported on the declassification of a 1976 State Department cable from Henry Kissinger to "his assistant secretary of state for Inter-American affairs, Harry Shlaudeman, to cancel a formal demarche to the Uruguayan government, protesting the assassinations and other activities of Operation Condor." Only five days later, former Chilean diplomat Orlando Letelier and his assistant Ronnie Moffat were assassinated on the streets of Washington, D.C. by a CIA-supported Chilean secret police killer.

But, as the Obama administration rehabilitation of the odious Kissinger demonstrates, memory is short in Washington, even when there is blood on the streets… unless that blood can be turned in for demagogic currency, as is the case with the deaths on 9/11. To have Kissinger honored as an authority on the Indochinese War is an obscenity of the first order. Branfman recalls some of the essential history:

Kissinger orchestrated the most massive bombing in world history, dropping 3,984,563 million tons on an area inhabited by some 50 million people, twice the 2 million tons dropped on hundreds of millions through Europe and the Pacific in World War II. He dropped 1.6 million tons on South Vietnam, as many as Lyndon Johnson at the height of U.S. involvement; quadrupled the bombing of Laos, from 454,200 to 1,628,900 million tons; initiated widespread bombing of previously peaceful Cambodia, including B52 carpet bombing of undefended villages, for a total of 600,000-1 million tons; and vastly expanded the bombing of civilian targets in North Vietnam….

In Cambodia, Kissinger told Alexander Haig to undertake "a massive bombing campaign in Cambodia. Anything that flies or anything that moves," the clearest possible violation of international law requiring the protection of civilians. Two million people in Khmer Rouge zones, as estimated by the U.S. Embassy, were driven underground by massive U.S. bombing that featured regular B52 carpet-bombing of undefended villages.

But when it comes to crimes, we’re just getting started here. Christopher Hitchens positioned part of his career as a would-be prosecutor for war criminal Kissinger. A quick review of just the first part of his March 2001 article at Harpers, "The Making of a War Criminal," notes Kissinger’s activities. For instance, there was the "recruitment and betrayal of the Iraqi Kurds, who were falsely encouraged by him to take up arms against Saddam Hussein in 1972-75, and who were then abandoned to extermination on their hillsides when Saddam Hussein made a diplomatic deal with the Shah of Iran…" Or consider "Kissinger’s orchestration of political and military and diplomatic cover for apartheid in South Africa." Or read Hitchen’s detailed, documentary discussion of Kissinger’s brain-trusting for assassination and coup plotting in Chile.

What Has Hillary Wrought?

Of course, Hillary Clinton deserves her own share of obloquy for inviting Kissinger and friends, including former Kissinger protege Holbrooke and the latter’s former Saigon Foreign Service roommate, the unsavory John Negroponte. (Negroponte worked at the U.S. Embassy in Saigon from 1964-68… uh huh.) One could write an entire column about the war crimes of Mr. Negroponte, who, according to the introduction by the National Security Archive (NSA) to a slew of documents implicating him, as former U.S. Ambassador to Honduras in the 1980s "sought to undermine regional peace efforts" in the Nicaraguan Civil War. NSA also cites "multiple reports of meetings and conversations [by Negroponte] with Honduran military officers who were instrumental in providing logistical support and infrastructure for CIA covert operations in support of the contras against Nicaragua."

Holbrooke, of course, was recently implicated in a controversy with General Stanley McChrystal over policy in Afghanistan. MrChrystal got the heave-ho for being injudicious in his comments to a Rolling Stone reporter, and even though Holbrooke has been critical of U.S. goals in Afghanistan, it’s Holbrooke on the State Department podium, while McChrystal is out in the wilderness (for the time being). Branfman notes the ironies, and political agenda, behind the invite:

Clinton has also invited Richard Holbrooke, who as State Department head of Afghanistan/Pakistan policy has learned nothing from history and is repeating precisely the same policies that caused the U.S. to lose in Indochina — support of a corrupt and unpopular regime that cannot stand on its own. Inviting Holbrooke is particularly egregious, because following Obama’s strategy review, according to Bob Woodward’s new book, "perhaps the most pessimistic view came from Richard Holbrooke. "It can’t work," he said. Lacking even a fraction of the integrity and moral courage of a Daniel Ellsberg, Holbrooke continues to promote in public a policy he privately believes is doomed to fail.

Branfman also notes that Kissinger is on hand to promote his "we lost Vietnam" garbage, claiming it was Congressional betrayal that failed the U.S. mission in Vietnam at the end. And sure enough, Kissinger was true to form at the conference, as reported by WRGW News:

“I believe most of what went wrong in Vietnam we did to ourselves,” said Kissinger, speaking candidly about his Vietnam experience in front of a capacity audience, including the Vietnamese Embassy….

Henry Kissinger… explained that during the Vietnam War “the faith of Americans in each other became destroyed in the process” of America reaching the limits of its foreign policy….

“America wanted compromise, Hanoi wanted victory,” he stated.

According to Dr. Kissinger, lack of support at home ultimately lost the war for South Vietnam and the United States.

Kissinger, Holbrooke, and Negroponte at the podium represent the true face of U.S. diplomacy today, which relies on the nostrums and machinations of an entire post-WWII generation which saw nothing wrong in ruling American Empire by means of mass murder, assassination, and the bombing of civilians. Today, the Obama administration steps up bombings in Pakistan, escalates the war in Afghanistan (as an exit strategy?), and conducts a world-wide Murder, Inc., which grants itself the right to execute without due process American citizens by Hellfire missiles, even as it trumpets secrecy for everything it does.

Obama’s embrace of Kissinger tells you all you need to know about what this administration is about. Behind the special treatment for war criminal Kissinger is the current administration’s aggressive pursuit of war in Afghanistan and military and covert operations around the world.

I try to imagine how the left would have responded if Bush had invited Kissinger to reflect for history upon the Vietnam War. I’d like to think there would have been universal derision. Today, there’s very little outrage expressed by this official government appearance by a bona fide war criminal. Whether it is fealty to Barack Obama, Hillary Clinton, or a U.S. military and national security apparatus that says it stands for democracy but really stands for endless war, the state right to assassinate U.S. critics, and to intervene anywhere in the world that U.S. "interests" are involved, what stands for politics in this country is a joke. Something is very, very rotten at the core of this country. The falsification of history by the very criminals who conducted crimes against humanity is a primary exhibit of the degeneration of political discourse in America.

Originally posted at Firedoglake/The Seminal

Pelosi, Fast-track This -- Legislation Introduced to Sunset and Repeal the AUMF

A press release from Rep. Barbara Lee's office, as posted at WarIsACrime.org:

Washington, DC - This week, Congresswoman Barbara Lee (D-CA) introduced legislation to sunset and repeal Public Law 107-40, the 2001 Authorization for Use of Military Force (AUMF), over a six month period.

On September 14, 2001, Congresswoman Lee was the only Member of Congress to vote against the 2001 AUMF.

"Nine years ago, I made the unpopular decision to vote against this authorization based on a fundamental belief that a blank check to wage war anywhere, at any time, and for any length does not serve the national security interests of the United States," said Congresswoman Lee.

"In reflecting on the rush-to-war in Afghanistan and President Bush's misguided war-of-choice in Iraq, my worst fears have unfortunately been realized.

"Over the last nine years this broad authorization of force has had far-reaching implications which shake the very foundations of our great nation and democracy.

"It has been used to justify warrantless surveillance and wiretapping activities, indefinite detention practices that fly in the face of our constitutional values, extrajudicial targeted-killing operations, and a policy of borderless and open-ended war that threatens to indefinitely extend U.S. military engagement around the world.

"It is time for Congress to reexamine, and ultimately repeal this flawed authorization.

"The alternative, to concede Congress's constitutional responsibilities and blindly accept the persistence of war without end, is unacceptable."

The official bill number of this legislation is H.R. 6282 and the original co-sponsors are Representatives Walter Jones (NC), Rep. Lynn Woolsey (CA), Rep. Dennis Kucinich (OH), Rep. Ron Paul (TX), Rep. Michael M. Honda (CA), Rep. Chellie Pingree (ME), Rep. Pete Stark (CA), Rep. Raúl M. Grijalva (AZ), Rep. Keith Ellison (MN).

See full article by Barbara Lee at SFGate. (H/t Jim White)

Court Closes Door to Families of Wrongfully Detained Men Who Died at Guantánamo

From Center for Constitutional Rights, a press release relating to a new low in the attitude of the Obama administration and the federal courts, who have made a point of blocking judicial remedies for those tortured, and now even those murdered, by the U.S. in the ongoing "war against terror." The government's claims of "national security" are quite clearly meant to cover war crimes and other crimes against humanity.

The press release:

September 29, 2010 Washington and New York – Today, the United States District Court for the District of Columbia affirmed its decision to dismiss Al-Zahrani v. Rumsfeld, a civil lawsuit brought by the Center for Constitutional Rights (CCR) and co-counsel concerning the deaths of three Guantánamo prisoners in June 2006, despite newly-available evidence from soldiers stationed at the base at the time of the deaths that strongly suggest the men were killed at a black site at Guantánamo and a government cover-up of the true cause and circumstances of the deaths. The government reported the deaths as suicides.

“No one can compensate me for the loss of my son; no one can bring him back to me,” said Talal Al-Zahrani, father of Yasser Al-Zahrani. “But the court’s refusal to hear my son’s case is devastating and deepens my family’s pain. The courts should be investigating my son’s death and holding those responsible accountable. President Obama should be defending human rights and the democratic values the U.S. preaches to the world, rather than going to court to defend the lies and gruesome crimes of the Bush administration.”

The case, filed on behalf of the families of two of the deceased, Yasser Al-Zahrani of Saudi Arabia and Salah Ali Abdullah Ahmed Al-Salami of Yemen, charged the government and 24 federal officials with responsibility for the men’s abuse, wrongful detention and ultimate deaths. Earlier this year, the court granted the defendants’ motion to dismiss the case, holding that national security considerations prevented the court from hearing the families’ claims. Following the dismissal, the families filed a motion for reconsideration on the basis of the evidence from the soldiers, as reported by Scott Horton in Harper’s Magazine in January 2010, arguing that the new facts compelled the court to reopen the case.

While noting that “‘it is, as plaintiffs argue, ‘disturb[ing]’ that defendants allegedly ‘fought to keep secret virtually all information concerning the cause and circumstances of Al-Zahrani and Al-Salami’s deaths’ and that ‘details of an elaborate, high-level cover-up of likely homicide at a ‘black site’ at Guantanamo’ are now emerging,’” the court’s decision today held that national security considerations still bar it from considering the families’ claims, and that the defendants’ alleged involvement in the murder of Al-Zahrani and Al-Salami was still within the scope of their employment.

“The very secrecy of Guantánamo is what allowed the government to torture and illegally imprison innocent men there for years, as we now know from leaked government memos, whistleblowers, and repeated wins in court in detainees’ habeas cases,” said CCR Attorney Pardiss Kebriaei, lead counsel in the case. “Yet the court’s decision today allows secrecy to continue to shroud the truth about these deaths, in the face of compelling evidence of a four-year cover-up of murder.”

The suit was brought by CCR and co-counsel William Goodman of Goodman & Hurwitz, P.C. and the International Human Rights Law Clinic (IHRLC) at the Washington College of Law. The decision, the complaint, the government briefs and other court documents, as well as video of Mr. Talal Zahrani addressing the U.S. government, courts and people regarding his son’s death can be found on CCR’s legal case page.

This appears to be the heart of the court's decision (PDF — bold emphasis added):

Specifically, plaintiffs maintain that “unspecified national security concerns” should not be allowed to trump other factors in this case without question, given the government’s alleged efforts to keep the circumstances of Al-Zahrani and Al-Salami’s deaths secret and the possibility of a homicide at a “black site.” (Id. at 10.) Plaintiffs allege that the new evidence compels the creation of a Bivens remedy, or at least additional discovery geared toward uncovering sufficient evidence to allow the Court to conduct a special factors analysis….

Relying on the Supreme Court’s post-Bivens special factor analysis in Sanchez-Espinoza, the D.C. Circuit “ha[d] no doubt that . . . considerations of institutional competence preclude judicial creation of damage remedies” where federal defendants are sued by nonresident aliens asserting their constitutional rights. Id. There, plaintiffs accused defendants of “acting in concert and conspiracy with the other defendants and others unknown, [and] authoriz[ing], financ[ing], train[ing], direct[ing] and knowingly provid[ing] substantial assistance for the performance of activities which terrorize and otherwise injure the civilian population of the Republic of Nicaragua.” Id. at 205. The assistance allegedly provided by the United States “resulted in summary execution, murder, abduction, torture, rape, wounding, and the destruction of private property and public facilities.” Id. The extreme nature of these allegations notwithstanding, the Court held that “the special needs of foreign affairs must stay our hand in the creation of damage remedies against military and foreign policy officials for allegedly unconstitutional treatment of foreign subjects causing injury abroad.” Id. at 209. The Court concluded that the “foreign affairs implications” of suits like that in Sanchez-Espinoza “cannot be ignored,” because of “their ability to produce . . . ‘embarrassment of our government abroad’ through ‘multifarious pronouncements by various departments on one question.’” Id. (quoting Baker v. Carr, 369 U.S. 186, 226 (1962)).

Nearly twenty-five years later, in Rasul II, the D.C. Circuit, invoking Sanchez-Espinoza, affirmed the dismissal of claims under the Fifth and Eighth Amendments brought by former detainees at the military facility in Guantanamo Bay. Although it found that plaintiffs had failed to state a Bivens claim because defendants were entitled to qualified immunity, Rasul II, 563 F.3d at 532, it also identified an alternative ground for dismissing plaintiffs’ Bivens claims—that “special factors” counseled against doing so. Id. at 532 n.5. The Court found that “[t]he danger of obstructing U.S. national security policy is one such factor” and that there was “no basis” for distinguishing the Rasul plaintiffs’ claims from the claims in Sanchez-Espinoza….

The Court finds that the new evidence and allegations4 presented by plaintiffs do not change the application of Rasul II to this case nor do they compel reconsideration of the Court’s dismissal of plaintiffs’ constitutional claims….

While it is, as plaintiffs argue, “disturb[ing]” that defendants allegedly “fought to keep secret virtually all information concerning the cause and circumstances of Al-Zahrani and Al-Salami’s deaths” and that “details of an elaborate, high-level cover-up of likely homicide at a ‘black site’ at Guantanamo” are now emerging (id. at 10), these claims are comparable to those in Sanchez-Espinoza, where it was alleged that the United States had violated fundamental human rights when it allegedly sponsored terrorist raids in Nicaragua that resulted in the “execution, murder, abduction, torture, rape [and] wounding” of “innocent Nicaraguan civilians.” 770 F.2d at 205. And, they are comparable to allegations that U.S. officials threatened, tortured, and beat detainees at Guantanamo Bay. Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 27, 29 (D.D.C. 2006). Moreover, even if every allegation of “shocking conduct” in plaintiffs’ proposed amended complaint and the Harper’s Magazine article is true (Pls.’ Mot. at 14), the highly disturbing nature of allegations in a complaint cannot be a sufficient basis in law for the creation of a Bivens remedy where special factors counsel hesitation. The question before the Court is not whether homicide “exceeds the bounds of permissible official conduct in the treatment of detainees in U.S. custody and demands accountability” or whether the families of Al-Zahrani and Al-Salami deserve a remedy. (Id. at 13-14.) Rather, the question is “who should decide whether such a remedy should be provided.” Bush, 462 U.S. at 380; see also Wilson v. Libby, 535 F.3d 697, 705, 709 (D.C. Cir. 2008). The D.C. Circuit unequivocally answered that question when it found that courts “must leave to Congress the judgment whether a damage remedy should exist” in cases involving national security and foreign policy concerns

The court bows to the government’s claims of “national security.” It’s outrageous, and they are quite blatant in their claims that the worst of crimes are not to be addressed by the courts if “national security” is invoked. As commenter phred wrote at the Emptywheel blog:

So Article III totally abdicates their authority to a hopelessly dysfunctional Article I, leaving all of us at the mercy of a tyrannical Article II.

What happened to checks and balances?

And to paraphrase bmaz from awhile back… When you are comparing legality to our conduct in Nicaragua, you’ve already lost the argument.

In the Emptywheel article on this, Marcy Wheeler notes, "here’s one of Scott Horton’s articles on this to remind you of the background and the new evidence the plaintiffs submitted."