APA Referendum & the Prisons Issue: Vignettes from Hell

There was a bit of a scare for American Psychological Association supporters of the anti-torture referendum when some APA members who were withholding their dues in protest of APA interrogation policy felt they weren't getting their ballots in the mail. The mailing includes the APA ballot for president of the organization, as well as the ballot for the referendum. It turns out that the mailings may have been only somewhat delayed, and APA is cooperating to help members get their ballots.

In good news for referendum supporters, APA divisions 9 and 27, the Society for the Psychological Study of Social Issues (SPSSI) and the Society for Community Research and Action: Division of Community Psychology, respectively, have voted to endorse the referendum. Meanwhile, the debate over the pros and cons of the referendum, which seeks to ban psychologist participation "in settings where persons are held outside of, or in violation of, either International Law (e.g., the UN Convention Against Torture and the Geneva Conventions) or the US Constitution (where appropriate), unless they are working directly for the persons being detained or for an independent third party working to protect human rights," continues apace.

The initiators of the referendum are trying to address their opponents criticism, and have posted an updated FAQ page towards that end.

Abuse in American Prisons

Some of the opponents of the APA referendum say, disingenuously in my opinion, that passage of the referendum could jeopardize psychologist jobs in U.S. supermax prisons or other forensic settings. The leftwing version of this criticism is to oppose the resolution because it does not go far enough, i.e., that it fails to address both torture and abusive, inhumane conditions that occur in U.S. prisons.

It is indisputable that terrible abuse takes place in prisons in the United States, and that conditions and treatment in some amount to torture. This scandal has gone on for years, and the APA has totally failed to address it. However, to take anti-torture activists to task because their referendum (or earlier resolutions backed by the same group of supporters) addresses Pentagon/CIA torture and not abuse in American prisons, misses the point entirely, giving "progressive" cover to a political bloc with the supporters of military interrogator jobs in sites that disallow basic human rights.

The backers of the referendum address this issue in an August 6 letter to APA members:

We are well aware of the harms and legal struggles facing certain prisons and jails inside the domestic U.S. criminal justice system. However, the referendum takes no position on such settings where prisoners have full access to independent counsel and constitutional protections; nor does the referendum take a position on settings that now exist within the domestic mental health system where clients and patients also possess these basic rights.

I would have liked to see a stronger statement about the need to address the "harms and legal struggles" faced by domestic U.S. prisoners, but I also understand that the target the referendum is aiming at is the illegal military/CIA sites where prisoners have no constitutional or rights protection, and where torture is conducted as a matter of policy.

Still, both the medical and psychological establishments will have to face sooner or later the obscene mess that is U.S. penal practice. I can't understand, for my own part, why psychologists or any health professional would want to work in any place that propagates human suffering. For those who enter such institutions believing they can "make a difference" in treatment, or ameliorate suffering, they are usually cruelly disillusioned within a short period of time. (I have spoken to some of these psychologists, and they are have made it clear to me that the system is unsympathetic and unmoveable.) The others, like thousands of other prison employees, find ways to rationalize their collaboration with an unjust and barbaric system.

The conditions in U.S. prisons are bad and getting worse. A Human Rights Watch article noted:

A federal judge in 1999 concluded that Texas prisons were pervaded by a “culture of sadistic and malicious violence.” In 1995, a federal judge found a stunning pattern of staff assaults, abusive use of electronic stun devices guns, beatings, and brutality at Pelican Bay Prison in California, and concluded the violence “appears to be open, acknowledged, tolerated and sometimes expressly approved” by high ranking corrections officials....

In January 2004, the U.S. Department of Justice reported on terrible conditions at Arizona’s juvenile detentions centers, including sexual abuse of the children by staff members (and fellow inmates) that occurs “with disturbing frequency” and a level of physical abuse that is ”equally disturbing.”

Murder by Medical Neglect: the case of Hiu Lui Ng

The New York Times has an article by Nina Bernstein yesterday on the death in immigration custody of Hiu Lui Ng, a computer engineer in the U.S. since 1992, placed in detention a year ago even as he was applying for his green card. Denied treatment for months, it took a federal judge's order to get an MRI for Mr. Ng. The results came too late for any effective treatment.

In April [2008], Mr. Ng began complaining of excruciating back pain. By mid-July, he could no longer walk or stand. And last Wednesday, two days after his 34th birthday, he died in the custody of Immigration and Customs Enforcement in a Rhode Island hospital, his spine fractured and his body riddled with cancer that had gone undiagnosed and untreated for months....

Mr. Ng’s death follows a succession of cases that have drawn Congressional scrutiny to complaints of inadequate medical care, human rights violations and a lack of oversight in immigration detention, a rapidly growing network of publicly and privately run jails where the government held more than 300,000 people in the last year while deciding whether to deport them.

The article chronicles the nightmarish treatment of Mr. Ng, as officials seems to have lied about his treatment, and shifted him from prison to prison to avoid his habeas petition, filed so he could seek medical treatment. The Times article documents other recent cases of negligence leading to fatalities for immmigrant prisoners in its system.

Release Torture Victim Pol Brennan!

A case that does link U.S. prisons with the larger torture issue concerns the continued incarceration of former Irish Republican Army member Pol Brennan. He was arrested over 30 years ago for carrying explosives, and imprisoned in the notorious "H-blocks" of Long Kesh Prison in Britain (razed in 2006), where prisoners were subjected to torture via the "five techniques". These techniques would seem familiar to us today, who have seen the revelations from Abu Ghraib and Guantanamo. They include hooding, wall-standing (stress positions), sensory overload via noise, sleep deprivation, and deprivation of food and drink.

Pol Brennan escaped from Long Kesh as part of a big prison break of 38 prisoners in 1983.

Sandy Boyer and Shaun Harkin described Mr. Brennan's situation in an article at Counterpunch last May.

Pol made his way to the [San Francisco] Bay Area, where he met and married Joanna Volz, a U.S. citizen. They lived quietly until January 1993, when federal agents arrested Brennan on a British extradition warrant. He was forced to spend more than seven years fighting extradition, and was imprisoned for three of those years, half the time in a building with no windows.

The situation in Northern Ireland changed dramatically in ensuing years, with a political agreement between the Provisional IRA and the British government. Britain withdrew its request for Brennan's extradition in 2000. The U.S. also suspended deportation proceedings against some former IRA prisoners. But Brennan still faced deportation, though it was put on hold as his application for political asylum was being considered.

Brennan settled into domestic life, working as a carpenter. As adjudication for political asylum often does (to the stress of those applying, and the scandal of social justice in the U.S.), his asylum case went on for years, while his work permits were routinely approved.

But the new gung-ho security forces born in the fires of 9/11 have generated a new atmosphere. On January 26, 2008, Brennan and his wife were stopped at an immigration checkpoint in Texas. Because his work authorization was expired, and despite the fact that he could produce evidence of his asylum case and pending work permit application, the Border Patrol locked him up:

Brennan says, "They acted as if they had caught the terrorist al-Zarqawi, as they as they huddled around their computer screens. Their little eyes were jiggling in their heads with excitement"....

Brennan was soon moved to solitary confinement, because, apparently, he was considered an escape risk since he broke out of Long Kesh 25 years earlier. It was as if they expected the IRA to invade South Texas to free him.

Today, Pol is locked in a cell 23 hours a day....

An immigration judge denied Brennan bail, saying he is a "flight risk" and "a danger to the community."

According to an ACLU attorney, Mr. Brennan is currently being held at "Willacy County Detention Center, also known as 'Tent City' or 'Ritmo,' and the South Texas Detention Complex. Willacy is run by Management and Training Corporation (MTC), a Utah-based private prison company that gained some notoriety when its former director was tapped to set up the now-infamous Abu Ghraib prison in Iraq." (Emphasis added) Willacy is so bad that its own guards went to the media to complain of rotten maggot-infested food being fed to its 2000 or so immigrant prisoners.

Pol Brennan is another in a by now long stream of victims of abitrary detention and inhumane treatment by the U.S. government and its seamy security contractors. Those who wish to support Mr. Brennan in his campaign for release should visit his support website.

Georgian Conflict Manipulated by U.S./NATO/Russia

With the advance of Russian troops and tanks into the Georgian city of of Gori, and the accompanying denunciation of the Bush Administration, which seeks a UN Security Council condemnation of the move, the crisis around the South Ossetia-Georgia conflict seems primed to enter a new, more dangerous stage.

The U.S. says there's no chance they will intervene militarily (but who knows what kind of CIA covert operation is in the offing), and the Germans are trying to be some kind of peace broker. Meanwhile, the latest breaking news via BBC is that the Georgians have totally pulled out of South Ossetia, and Russian forces occupy Tskhinvali.

But make no mistake: this is a very complex and dangerous situation. To even pose it as "now" Russian tanks are rolling in is to echo U.S./Nato propaganda.

The South Ossetian province of Georgia is not ethnically Georgian. They have sought their independence and/or autonomy from Georgia for some time now. (Think of Georgia as a kind of baby Russia, with its own oppressed ethnic groups.)

It was Georgia that reneged on an autonomy agreement and referendum with South Ossetia. (There is another breakaway Georgian province in the mix, too: Abkhazia.) On the other hand, Georgia has been a victim of "great Russian chauvinism" ever since Tsarist times. Lenin, just before his death, failed to out-maneuver Stalin on the question of national sovereignty for the then-new "Soviet Georgian Republic," who pressed forceable "union" between Soviet Russia and Georgia (and other former Russian provinces). The abuse of national rights by a portion of the Bolshevik party got so bad that Lenin asked Stalin to be removed as General Secretary of the Communist Party, in order to push a reassessment of national relations between Soviet Russia and its neighbors -- one that would respect the national sovereignty of other countries. But Lenin died suddenly, and the request to remove Stalin and change relations with Georgia was suppressed, only to surface years later as part of the famous Khrushchev revelations.

Now, both Russian and the U.S./NATO are cynically utilizing the conflict as a proxy for their own great power confrontation. This is dangerous posturing, similar to the use of the Serbs, Bulgarians, Turks and Greeks in the Balkan Wars that preceded World War I. The lust for U.S. dominance in every corner of the world is the major destabilizing factor of our time. In the east, it has stirred up the hornet's nest of radical Islamic fundamentalism (after first courting the very same insurgents it supported against a then Westernizing Soviet Union, and then abandoning them).

In old Europe, nationalist and revanchist causes rooted in centuries-old resentments and inequalities are being cynically manipulated by the U.S. and NATO allies and Russia. The last time such matchsticks were lit within Europe itself we witnessed the horror of the Bosnian War, with its genocide, concentration camps, and massive relocation of displaced civilians. The time before that... World War I.

From the UK Guardian:

Vladimir Putin, the Russian president turned prime minister, in his public statements seemed to put more importance on Georgia's ambitions to join Nato. At its summit in Bucharest this year, Nato agreed that Georgia would become a member of the western military alliance, which would not have gone down well with the Kremlin.

What is not in dispute is that Georgia's president, Mikheil Saakashvili, overplayed his hand or walked into a Russian trap, but that is almost besides the point. James Sherr, an analyst at the Chatham House thinktank, argues that what the episode shows is Russia's determination to protect its owns interests whatever it takes....

On Politico, Ben Smith looks at how Barack Obama and John McCain, the two US presidential hopefuls have reacted to the crisis. He notes that Obama took a very mainstream position, calling for negotiations, but that McCain took a much more confrontational stance towards Russia.

Then we have this from Steve Clemons at The Washington Note on "American culpability" in the crisis:

My own view is that the U.S. has displayed a reckless disregard for Russian interests for some time. I don't like Russia's swing to greater domestic authoritarianism and worry about its stiffened posture on a number of international fronts -- but Simes convinces me in his important Foreign Affairs essay, "Losing Russia," that much of what we are seeing unfold between Russia and Georgia involves a high quotient of American culpability....

By pushing Kosovo the way the US did and aggravating nationalist sensitivities, Russia could in reaction be rationally expected to further integrate and cultivate South Ossetia and Abkhazia under de facto Russian control and pull these provinces that border Russia away from the state of Georgia.

At the time, there was word from senior level sources that Russia had asked the US to stretch an independence process for Kosovo over a longer stretch of time.... The U.S. rejected Russia's secret entreaties and instead rushed recognition of Kosovo and said damn the consequences.

Now thousands are dead. The fact is that a combination of American recklessness, serious miscalculation and over-reach by Georgian President Mikheil Saakashvili, as well as Russia's forceful reassertion of its regional national interests and status as an oil and gas rich, tough international player means America and Europe have yet again helped generate a crisis that tests US global credibility.

With a lame-duck president, as with the war drums beat over Iran, it's hard to know how far Washington will go in pushing a bellicose foreign policy. But the recklessness of a certain element within the Pentagon/CIA/Executive branch establishment, and the obliviousness and cowardice of many other actors there, means that no one should rest easy these days.

Once some people get the taste of war and conquest, they don't like to let go.

APA Bureaucrats Try to Torpedo Anti-Torture Resolution

As Stephen Soldz, one of the supporters of an anti-torture referendum resolution now being mailed out to members of the American Psychological Association, reports:

The APA has launched a strong effort at spin and disinformation regarding the referendum. Unfortunately, some of our colleagues who should support this efforts have also parsed the text in such a way as to perceive a potential threat.

The referendum seems tame enough, stating:

Be it resolved that psychologists may not work in settings where persons are held outside of, or in violation of, either International Law (e.g., the UN Convention Against Torture and the Geneva Conventions) or the US Constitution (where appropriate), unless they are working directly for the persons being detained or for an independent third party working to protect human rights.

The Incredible Lightness of Div. 48

A blow to the proponents of the referendum came from Executive Committee of APA's Division 48, the (ironically-named) Society for the Study of Peace, Conflict, and Violence. The statement by Division 48 is being passed around on the various APA listservs, as this is a battle largely being fought via e-mail, out of sight of the general public, and even much of APA membership, who may not pay attention to or even be members of the various listservs (which are generally populated by APA bureaucrats, bureaucrat wanna-bes, and members of the politicized opposition).

The EC at Division 48 states the referendum, whose "spirit" it "very much supports", "lacks clarity," is "unrealistic", and "more aspirational than practical." The meat of their opposition is expressed in a very particular fear:

As written, the petition/referendum also extends beyond psychologists involvement at detention sites for individuals held as "enemy combatants" to all contexts and could result in a prohibition against psychologists work in other environments within the United States (e.g., prisons, hospitals). Could psychologists work at supermax prisons, for example?....

... perhaps more importantly, we have concerns about the treatment of prisoners in U.S. correctional facilities and thus, do not want to take U.S. sites off the table for discussion related to human rights.

The opponents of the referendum have seized upon the apostasy of the Peace division, with APA President-elect James Bray circulating copies of the Division 48 Executive Committee position to other APA divisional listservs. The President of Division 48 has publicly stated that "the referendum in its current form would undermine the vital humanitarian work of many psychologists."

But the defense of supermax prison jobs, and the concern about U.S. prison conditions rings hollow, being a disingenuous attempt to back institutional concerns in alliance with the Department of Defense and the CIA. In political terms, the coalition between so-called peace psychologists and pro-military types within APA represents a classic rotten bloc.

In one example of the right-wing acrimony whipped up by the threats against psychologist jobs -- even jobs attending prisoners held in inhumane long-term isolation and/or indefinite detention -- I came across this case of preposterous mock-heroic posturing, posted to a listserv from the division for media and psychology:

The referenced sponsoring coalition would have us turn the USA into a toothless lion in our defense against the deranged terrorists, which have set a fatwa limit of 10-Million innocent casualties per incident.

Defending the Resolution

Meanwhile, the backers of the referendum have released a statement clarifying the intent of the resolution:

Dear APA members:

As sponsors and supporters of the referendum, we are aware that this is a period given to commentary from those who have introduced the referendum, and that–consistent with APA policy–such commentary will be considered in future policy decisions as valid interpretation of the resolution’s intent. We are also aware that there has been some concern voiced on several listservs that the resolution may have ‘unintended consequences’; namely that it may impact the work of psychologists working in existing U.S. jails, prisons, psychiatric facilities, and hospitals.

While we believe a reading of the full referendum in its context resolves these concerns, we would like to be sure that there are no misunderstandings on this point. We are therefore using this commentary period to reiterate the application of the petition, its meaning, and intent:

This referendum is focused on settings such as Guantánamo Bay and the CIA ‘black sites’ set up by the U.S. as part of its ‘global war on terror’; settings where the persons being detained are denied the protections of either constitutional or international law, settings which have been denounced by the United Nations, the Council of Europe, and the International Committee of the Red Cross.

We are well aware of the harms and legal struggles facing certain prisons and jails inside the domestic U.S. criminal justice system. However, the referendum takes no position on such settings where prisoners have full access to independent counsel and constitutional protections; nor does the referendum take a position on settings that now exist within the domestic mental health system where clients and patients also possess these basic rights.

For Psychologists for an Ethical APA
Dan Aalbers
dan.aalbers@gmail.com

Ruth Fallenbaum
ruthfallenbaum@comcast.net

Brad Olson
b-olson@northwestern.edu

As Soldz's piece points out, The Torture Abolition and Survivors Support Coalition International has issued a statement in support of the referendum, as has former APA-PENS member Jean Marie Arrigo. Former head of APA's Practice Directorate, Bryant Welch, has released a statement in support, as well:

This is the third consecutive annual convention in which APA has presented new reasons for refusing to explicitly state that psychologists are not to participate in detention centers where torture is being used. In 2006 we were told, among many things, that torture was not occurring, and that it was sufficient for APA to reiterate its 1986 resolution “opposing torture.” Last year we were told that psychologists’ presence at the detention centers was actually necessary to prevent the torture whose very existence these same APA officials denied the previous year. Bizarrely, APA outlawed nineteen specific forms of torture, as if in some way the large number of proscribed techniques would cripple torture efforts.

As a result, for the first time in APA history, APA rank and file members have secured the necessary signatures to petition the APA and force APA to submit the torture issue to a referendum by the membership.

Persisting in its support for psychologists’ participation in Bush detention centers and appearing insensitive to the moral concerns of its members, APA leaders are now advising APA members to oppose the referendum because the language of the referendum might be interpreted to preclude psychologists working in certain institutional settings. This argument is based on scenarios that are extremely far fetched and could readily be addressed even were they to occur. To the public, of course, the message would be that psychologists are not willing to stop torture now if there is even a remote risk of losing jobs in the future.

Since the Bush Administration will be out of office by the next time APA meets, this will be the last opportunity psychologists will have to remove this terrible stain from our reputation and our history.

Torture is not a nuanced issue. Vote No to torture. Vote YES on the referendum.

The voting will continue for the next month or so. If you know a psychologist, forward this story to them. Have them visit ethicalapa.com. Tell them about the presidential campaign of Steven Reisner, who aims to implement the policies the referendum represents.

APA and the National Security State

I, of course, am under no illusions that the APA will be reformed any time soon. It will be an immense victory to pass the resolution or elect Dr. Reisner. But the APA policy and organizational apparatus is fully intertwined in the governmental spiderweb of military, intelligence, and private consultation and "scientific" organizations, and academia, under the umbrella of serving the national security state. This wide-ranging set of special interests forms an extremely formidable opposition to those who would fundamentally change the policies and personnel responsible for the institution of a world-wide network of secret prisons and institutionalized torture.

But, as the cliche states, every journey must begin with the first steps. And a necessary first step is supporting the referendum being voted on this month at APA, and helping circulate the defense of that referendum as far and widely as you can.

(Updated) Torture Trial Ends: Reflections on the Hamdan Verdict

Osama bin Laden's personal driver and bodyguard, who made the magisterial sum of $200 per month, 34-year-old Salim Ahmed Hamdan, who was held years without charges at Guantanamo Naval Base prison, has just been found guilty of lesser charges in the first of a series of planned "military commission" trials by the Bush Administration. Comprehensive news coverage of the Hamdan trial can be found at the Miami Herald.

Hamdan was found not guilty on two counts of conspiracy to foment terrorism in league with Al Qaeda. He was found guilty on five of eight charges of providing material support to terrorists. He has yet to be sentenced, and faces possible life imprisonment. In any case, the Bush Administration has already said that whatever the verdict or sentence, no "enemy combatant" will be released until the "war on terror" is over, i.e., until hell freezes over.

Hamdan's prosecution has been a key judicial and political football, ever since attorneys for Mr. Hamdan pressed his rights to challenge his detention in the courts. The struggle for his habeas rights went up to the Supreme Court, where the court, in Hamdan v. Rumsfeld, upheld the rights of prisoners facing Bush's jerry-rigged military commissions. The ruling meant Bush and the Pentagon had to go back to the drawing board to redo the commissions concept, which in the end meant years more of imprisonment for the detainees and a revamped military commission policy that didn't look all that different from the old one.

While the months and years unfolded, military prosecutors quit, and other military lawyers protested, culminating in the resignation last October of Colonel Morris Davis, the former prosecutor for the commissions, citing political bias and interference in the trials, and castigating the process for allowing the introduction of "evidence" produced by torture.

[Additional note: A commenter on the posting of this story over at Daily Kos notes that that "hearsay evidence is also admissible in these kangaroo courts, as well as coerced testimony and secret evidence." H/T Smintheus]

Torture and the Hamdan Trial

Hamdan is reported to have been subjected during the course of his incarceration to beatings, sleep deprivation, isolation, and sexual humiliation. The impact of this upon the substance of the "trial" -- the first such military commission trial since World War II -- became clear when Army psychologist Colonel L. Morgan Banks III was called to testify in secret session.

If the name seems familiar to my readers, it's because L. Morgan Banks was a member of the American Psychological Association's 2006 PENS task force on psychological ethics and national security. Banks was also Chief Psychologist of the Army's Survival, Evasion, Resistance, Escape (SERE) program, coming to Guantanamo to teach interrogation techniques in early 2003. We now know what kinds of techniques were being taught, e.g. "degradation tactics," "physical debilitation tactics," sensory deprivation, and demonstrating to the prisoner "complete control over victim's fate."

Demonstrating omnipotence and total control, by the way, is why the military, CIA and Bush are so insistent in denying detainee rights, especially habeas corpus. As Jane Mayer reports in her new book, The Dark Side, administration stalwarts Dick Cheney and David Addington were incensed by 2004 Supreme Court rulings granting "enemy combatants" due process rights, such as having an attorney, or challenging their detention in court, convinced by "CIA arguments that any outside contact might jeopardize the psychological control necessary to interrogate terror suspects" (p. 302, emphasis added).

We can only guess at what Banks testimony was. One assumes it had to do with the coercive interrogation and abusive conditions of detention suffered by Mr. Hamdan. The blanked out pages of Banks' testimony are a stark testimony to the failure of justice, and the contemporary practice of the U.S. government to allow testimony induced by torture, a practice that sets back American jurisprudence more than 300 years.

Responding to the Verdict

From today's Miami Herald story, as covered by Carol Rosenberg:

Salim Hamdan, 37, stood and listened with head bowed to an Arabic translation as he became the first man convicted at trial in the first U.S. war crimes tribunal since World War II.

He said nothing but wiped his eyes with his head scarf [An AP story says Hamdan openly wept at the verdict.]....

In finding Hamdan not guilty of two counts of conspiracy, the jury did not entirely accept the Pentagon's theory that the father of two with a fourth-grade education was a key cog responsible for al Qaeda mayhem culminating with the 9/11 terror attacks....

Defense lawyers derided the war court, called a military commission, as relying on federal agents' interrogations conducted from Afghanistan to Guantánamo without notifying Hamdan that he might be prosecuted and without benefit of a lawyer even in his second year here.

"In no other court in this country would the evidence be admissible," said retired Navy Lt. Cmdr. Charlie Swift, who called the trial "by no means transparent."

The Center for Constitutional Rights released a statement by Shayana Kadidal, Senior Managing Attorney at CCR, upon the release of the verdict:

Hamdan’s trial violated two of the most fundamental criminal justice principles accepted by all developed nations: the prohibition on the use of coerced evidence and the prohibition on retroactive criminal laws.

The trial will not create finality – the decision to keep these cases out of the ordinary criminal courts will produce years of appeals over novel legal issues raised by the untested military commissions system. Even after those appeals are finished, the process will never be seen as legitimate by the world. This case was the first trial run of the commissions system, and the decision proves nothing except that the system itself should be scrapped. Terrorism-related crimes should be tried in the time-tested domestic criminal justice system, a system whose rules have been designed over the centuries with one goal: to seek out the truth.”

ACLU Executive Director Anthony Romero has declared the verdict a travesty:

Any verdict resulting from such a flawed system is a betrayal of American values. The rules for the Guantánamo military commissions are so flawed that justice could never be served. From start to finish, this has been a monumental debacle of American justice. The judgment against Hamdan undoubtedly will be challenged in legitimate courts, but there is no appeal from the judgment of future generations. This system was devised to permit the prosecution of alleged wrongdoing by detainees, while continuing to cover up the wrongdoing by government interrogators. Trials that are shrouded in secrecy and tainted by coercion are the very antithesis of American justice.

The Bush White House, of course, sees things differently:

"We're pleased that Salim Hamdan received a fair trial," Deputy spokesman Tony Fratto said in a statement....

"The Military Commission system is a fair and appropriate legal process for prosecuting detainees alleged to have committed crimes against the United States or our interests," Fratto said. "We look forward to other cases moving forward to trial."

Reaction and the "War on Terror"

Typical reactions I have heard to the Hamdan case, as to the situation of the Guantanamo and other "enemy combatant" prisoners in general, include icy statements decrying pity, reminding us of the thousands killed on 9/11, or the U.S. soldiers killed in Iraq and Afghanistan. Others are less engorged with vengeance. Some feel more secure: a message has been sent to the "terrorists," where "terrorist" is a label for something vaguely evil they can't understand, a murky group of persecutors that simply want to destroy "our" way of life.

The vast majority, I think, simply care not to look as the very principles upon which our society is built are trampled into the ground by lordly politicians who play upon fear, and feed their own pockets with the profits of war. Perhaps it is too painful to observe such injustice, yet feel so impotent, so small against the great power of the state. But behind these societal principles are real people, many of them innocent of any charge. (Even as early as 2002, a secret CIA report concluded that as many of 1/3 of the detainees at Guantanamo were innocent.)

There's a myriad of other reactions: We must not get off topic. We have to elect Democrats. There's nothing I can do.

The spirit of the nation has already been shattered. More kangaroo military commissions trials are planned. And the government is only whetting its appetite for anti-democratic rule, outside the limits of justice and due process, honing its machinery of tyranny.

Make no mistake about it: the Hamdan verdict was a victory for the Bush Administration, and for those who would terminate whatever vestiges of moral and just government remain. I know that there are those who would oppose such a demolition of democratic society, many of them within the halls of government, perhaps even within the Pentagon and CIA itself. They will fight. But will they win?

Without public opinion strongly activated against them, the militarists and torturers will win. It's become a cliche, but Martin Niemöller's invocation against inaction in the face of tyranny has also become an omen, a warning with resonant overtones:

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.

UPDATE (3:25pm, PDT):

The following is a statement by Democratic presidential candidate Barack Obama on the Military Commission ’s guilty verdict in the Salim Hamdan case.

“I commend the military officers who presided over this trial and served on the hearing panel under difficult and unprecedented circumstances. They and all our Armed Forces continue to serve this country with valor in the fight against terrorism. That the Hamdan trial — the first military commission trial with a guilty verdict since 9/11 — took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice. And while it is important to convict anyone who provides material support for terrorism, it is long past time to capture or kill Usama bin Laden and the terrorists who murdered nearly 3000 Americans.”

The critique is mushy and oblique. It covers the fact that this tribunal verdict was completely tainted by the "dangerous flaws", and cannot be taken seriously. To serve on such a kangaroo court is not to "serve this country with valor", as the resignation of the Gitmo chief prosecutor last year made clear.

Meanwhile, here's McCain's slavish ode to Bush (in)justice:

The following is a statement by Republican presidential candidate John McCain on the Military Commission’s verdict:

“I welcome today’s guilty verdict in the first trial held under the Military Commissions Act (MCA). This process of bringing terrorists to justice has been too long delayed, but I’m encouraged that it is finally moving forward. I supported that legislation, which was a good-faith effort by Congress to meet the Supreme Court’s direction to establish a process to bring terrorist detainees to trial. Salim Ahmed Hamdan, a trusted confidante of Usama Bin Laden, was provided a full hearing of the charges against him and was represented by counsel who vigorously defended him. The jury found that the prosecution lawyers had proven, beyond a reasonable doubt, that Hamdan had aided terrorists by supplying weapons to Al Qaeda and Taliban forces in Afghanistan. This process demonstrated that military commissions can effectively bring very dangerous terrorists to justice. The fact that the jury did not find Hamdan guilty of all of the charges brought against him demonstrates that the jury weighed the evidence carefully. Unlike Senator Obama who voted against the MCA and favors giving Al Qaeda terrorists direct access to U.S. civilian courts to contest their detention, I recognize that we cannot treat dangerous terrorists captured on the battlefield as we would common criminals.”

For all his puppet-like support to an inhumane and unjust process, McCain makes the point that Congress (with support of Democrats, btw, though McCain doesn't mention this) helped bring about this unconstitutional parody of jurisprudence.

Link

UPDATE II (9:25pm, PDT):

Scott Horton opines over at Newsweek:

"I would be very surprised if any of this conviction stands at the end of the day," says Scott Horton, a law professor specializing in human rights at Columbia University. "He was convicted of things that are not war crimes by a tribunal that has the power only to prosecute war crimes."

Marty Lederman makes similar but more nuanced point in a lengthy article, What Are the "War Crimes" For Which Hamdan Was Convicted?

UPDATE III (Sunday, 8/10, 12:15pm, PDT):

In a postscript to the Hamdan decision, the military jury, in what some in the mainstream press are calling a rebuke to the administration, sentenced Hamdan to 5-1/2 years. Since the ex-Al Qaeda driver has been in prison for over five years anyway, the effective sentence is only five months. The U.S. prosecutors had been asking the court to put Hamdan away for 30 years.

Some find in this relatively lighter sentence a repudiation by some in the military of Bush's military tribunal system. I tend to agree with an opinion piece yesterday in the New York Times, where William Glaberson wrote:

The verdict and the five-and-a-half-year sentence may not have been as severe as the government had hoped for, but it was a green light for a tribunal that the Pentagon plans to use to prosecute as many as 80 detainees, including five men charged as the plotters and coordinators of the Sept. 11 attack.

And that green light will stay on as long as the public impression is that the question of fairness in these star chamber "trials" -- with their secret testimony, their reliance on coerced testimony, their bogus insistence on "war crimes" that are not recognized by such by any other judicial institution, especially the use of "retroactive" laws -- is still a matter of sincere public debate. And that's precisely what the Times editorialist does, as Glaberson continues:

Nonetheless, the central question about the war crimes system remains unanswered after its first trial: Is it fair enough and open enough to meet Americans’ concept of justice?

The Hamdan verdict was not just, as the man should have never been held for years the way he was, subjected to torture, and tried for retrospectively implemented "laws". His sentence is as much a travesty as the tribunal itself. We will never know how Hamdan may have been judged and/or sentenced in a normal criminal court. Now, the Pentagon and the Bush Administration ponders what to do five months down the line with an "enemy combatant" who has served his term, even by Bush justice. Meanwhile, the wheels of judicial progress runs backward, as does the train of time itself, as the achievements of enlightenment democracy, justice, and penology unravel in the ambition to achieve American preeminence all over the world.

City of Walls, Nation of Shame

The U.S. counterinsurgency plan, godfathered by Gen. David Petraeus, to divide up Baghdad neighborhoods into barricaded ghettos has proceeded apace since its inception over a year ago. As a journalist who posted his recent video stories at YouTube notes:

US claims that the military surge is bringing stability to Iraq. By travelling through the heart of Baghdad its easy to see by enclosing the Sunni and Shia populations behind 12ft walls, the surge has left the city more divided and desperate than ever.

The traditional media has convinced the American people that the Bush/Petraeus "surge" has "worked." Democratic Party presidential presumptive nominee Barack Obama, while remaining critical of the Iraq War as a whole, maintains that the "surge" has resulted in an "improved security situation," thanks to "improved counterinsurgency tactics."

But the so-called surge has only acted to cement in place the transformation of Baghdad into a city of prisons, fortified by over twenty miles of walls, and defended by powerful militias. Below is a three part video shot by an Iraqi journalist recently returned to his home in Baghdad. (Parts Two and Three are displayed only via URL.)

Part One: City of Walls



Part Two: Baghdad Killing Fields

Part Three: Iraq's Lost Generation

One cannot watch these clips and not feel a tremendous shame at what evil the country we live in has visited upon the Iraqi people. In their petulant and impulsive aim at imperial glory, aided by the backing of oil, energy, armaments, and national security corporate interests, Bush, Cheney and their cohorts have created a tragedy of epic proportions, one for which this country will be paying, both financially, and in moral capital for decades to come.

The Democratic Party opposition is proving itself once again similarly in thrall to the same interests as their more overtly warlike GOP opponents. As the gleam begins to fade off the newness of the Obama persona, we are left with promises of more war -- this time in Afghanistan -- and minimal accountability for the crimes of lying us into the Iraq War, or engaging in barbaric torture countenanced at the highest levels of government. (See Mark Benjamin's new article over at Salon.com about what Obama will and will not do about holding Bush administration officials accountable in any Obama administration -- should there be such.)

That shadow falling from the walls of Baghdad neighborhoods is the shade of murderous greed in league with sectarian fury. Its darkness is spreading like a cloud of shame over this land, plunging all the inhabitants in a blindness of impotent fear and shame.

Thanks to panicbean over at Daily Kos for the links on this story

Agamemnon and Menelaus

The noble heroes of Greek antiquity are given their just due, as respected leaders of men, from the point of view of one Thersites, in Shakespeare's Troilus and Cressida:

Here's Agamemnon, an honest fellow enough, and one that loves quails, but he has not so much brain as ear-wax; and the goodly transformation of Jupiter there, his brother, the bull, the primitive statue and oblique memorial of cuckolds, a thrifty shoeing-horn in a chain, hanging at his brother's leg - to what form but that he is, should wit larded with malice, and malice forced with wit, turn him to? To an ass, were nothing: he is both ass and ox. To an ox, were nothing: he is both ox and ass. To be a dog, a mule, a cat, a fitchew, a toad, a lizard, an owl, a puttock, or a herring without a roe, I would not care; but to be Menelaus, I would conspire against destiny. Ask me not what I would be, if I were not Thersites; for I care not to be the louse of a lazar, so I were not Menelaus.

"Why Did the American Psychological Association Do it?"

Dr. Byant Welch has graciously allowed permission to reproduce the following article. I reviewed it in a blog piece last week. The entire article is worth reading, and I thank him for giving that privilege to readers of Invictus.

Why did the American Psychological Association do it?
By Bryant Welch

The regressive effects of current forms of political manipulation that I describe in my new book, State of Confusion: Political Manipulation and the Assault on the American Mind (Thomas Dunne Books, St. Martin’s Press, June, 2008) have not only affected American politics. They have also taken their toll on psychologists’ national organization, the American Psychological Association. Many APA members were shocked last year when APA twice refused to take an unequivocal stance against psychologists’ participation in the Bush detention centers. The fact that other health care organizations, typically more conservative than APA on humanitarian issues, were very outspoken about the issue made it all the more puzzling.

In human rights groups and liberal organizations around the world the arguments APA spokespersons advanced in support of APA’s position did not pass the red face test for credibility. Instead, their seemingly transparent disingenuousness only made the APA sound embarrassingly like the Bush Administration.

Banning psychologists’ participation in reputed torture mills was clearly unnecessary, it was argued. To do so would be an insult to military psychologists everywhere. Psychologists would never engage in torture. Further, psychologists’ participation in these detention centers was really an antidote to torture since psychologists’ presence could protect the potential torture victims. We psychologists were both too good and too important to join our professional colleagues in taking an absolutist moral position against one of the most shameful eras in our country’s history.

There are two questions that beg for answers. How did the APA form such an obviously close connection to the military? And why did the APA governance-the Board of Directors and the Council of Representatives-go along with the military interests? How could an organization of such bright and ethical people be rendered so incompetent to protect the profession from the horrible black eye they have given us?

I have had ample opportunity to observe both the inner workings of the APA and the personalities and organizational vicissitudes that have affected it over the last two decades. With one interruption, for most of the twenty year period from 1983 through 2003 I worked inside the APA central office as the first Executive Director of the APA Practice Directorate and served in several governance positions including Chair of the APA Board of Professional Affairs and member of the APA Council of Representatives.

When the torture issue broke last year, the answer to the first question about APA’s military connection seemed obvious to me. Since the early 1980’s APA has had a unique relationship with Hawaii Senator Daniel Inouye’s office. Inouye, for much of that time, has served as Chair of the Subcommittee on Defense for the Senate Appropriations Committee. The Subcommittee has responsibility for all U.S. defense spending. One of Inouye’s administrative assistants, psychologist Patrick DeLeon, has long been active in the APA and served a term as APA president. For over twenty-five years relationships between APA and the Department of Defense (DOD) have been strongly encouraged and closely coordinated by DeLeon. It was DeLeon acting on behalf of Inouye who initiated the DOD psychologist prescription demonstration project in the late 1980’s that began psychology’s efforts to secure prescriptive privileges.

For many APA governance members, most of whom have little Washington political experience, Dr. DeLeon is perceived as a canny politician and political force on Capitol Hill. The two most visible APA presidents on the torture issue, Ronald Levant and Gerald Koocher, based on personal discussions I have had with them in recent years, clearly hold DeLeon’s political savvy in high regard.

While I personally got along well with DeLeon and never doubted his commitment to psychology, his view of psychology and his sense of priorities were quite different from mine, and I did not share the positive assessments of Dr. DeLeon’s political prowess. I felt his priorities often had more to do with the status of psychology as reflected in comparatively minor issues that were often unconnected to issues that were of true importance to practitioners and patients. Rightly or wrongly, I often felt that an accurate sense of context was missing from his political analysis and objectives. It’s the same feeling I have now when I look aghast at what APA has done on the torture issue. Except this time, it is not something relatively innocuous.

Some people attempt to explain APA’s recent seemingly inexplicable behavior by assuming that large sums of money changed hands on the torture issue. I could certainly be wrong, but I think the more likely (and more remarkable) explanation is that those APA leaders making the decisions simply exercised judgment that was both that bad and that insensitive to the realities of the human suffering they were supporting..

Regardless, there is no question that APA had formed a strong relationship with military psychologists and the DOD through its connections with Inouye’s office.

But it is the second question that is probably more difficult to understand from afar. How could both the APA Board of Directors and the APA Council of Representatives support the military on this issue and subject the profession to such embarrassment by supporting a policy that is anathema to the vast majority of psychologists?

The moral decay and functional regression of an organization does not rise or fall with any single event any more than the fall of Rome truly occurred in 476 AD. What is clear to me, instead, is that the pluralistic and multi-faceted governing process that I witnessed when I first entered the APA in the early 1980’s was sharply curtailed during the 1990’s. Differences of opinion stopped and the APA suffered a terrible regression. Increasingly inbred, under the administration of Raymond Fowler, the association agenda was primarily and at times exclusively financial, focusing on making money both through real estate ventures and through what many of us felt was a an unwarranted, financially harsh treatment of APA employees.

More peculiarly, Fowler’s “agenda” for APA was encapsulated in the phrase “working together” a noble idea that to the best of my knowledge was never attached to any actual substantive agenda. Instead, it served as a means of social control, a subtle injunction against raising any of the conflictual issues, challenges, or ideas that need to be addressed in any vital and accountable organization. The APA became placid and increasingly detached.

The result was that much of the activity of the APA Council of Representatives turned away from substantive matters into an odd system of fawning over one another. Many members appeared to me to simply bathe in the good feeling that came from “working together.” For some, the bath was a narcissistic one and organizational regression became more debilitating. In other instances during this period, isolated dissent from rank and file members was stifled either with heavy handed letters from the APA attorney threatening legal action or by communications from prominent members of the APA governance threatening ethical action if policy protests were not discontinued.

The inept ability to deliberate on the torture issue was but the shocking denouement of an organizational process that was really set in motion in the early 1990’s largely to serve the convenience of a very small number of individuals.

As a result of the lengthy era of regression, the governance of APA was ill prepared for thoughtful deliberation on a matter as important as the torture issue. As I have written in State of Confusion when people are confused they are eager to be told what is real. The governance was simply over its head in trying to effectively deliberate on such an issue when there was organized support on the other side coming from the military interests supported by Koocher and Levant and possibly DeLeon.

When the torture issue arose, the Council, despite the efforts of several council members, fell victim to some of the very silly arguments described above. Council members were told that to oppose psychologists participation in the detention actions was to cruelly suggest that our colleagues might engage in torture. In a fashion chillingly characteristic of the gaslighter it was implied that those who raised concern about torture, were themselves torturing their colleagues who were working in the military. One prominent member of the APA governance gratuitously raised the ethnicity of one of the military psychologists seemingly opening the possibility that the opponents to torture were racist.

These arguments were then followed with the grandiose closing argument that psychologists presence at the detention centers was critical to make sure torture did not recur. We psychologists had a moral duty to prevent immoral behavior. The piano player once aroused to the possibility of what was going on upstairs was now necessary to prevent it. Yes, these were the arguments that carried the day in APA deliberations and enabled the military to have its way with the APA. In the more discerning eyes of the world, they have very little credibility.

But the gaslighting is not over, even now. There is one more step in the process. History will show this to be a despicable period of American history. The people who have supported APA’s position on this issue obviously do not want their legacy at APA to include that they supported a policy that failed to indict the detention centers. The recent history must be revised. In a seeming gesture of reconciliation the APA has offered to continue negotiating the matter with the dissident groups. In this fashion the historical revision has already begun. It may well be the final policy APA adopts will ultimately read the way it should have last summer and much, much earlier when it actually mattered. APA will “get it right” shortly before or shortly after George Bush leaves office. In leaving a final written policy that is like our sister organizations’ original policies, APA’s shocking failure at the critical time will appear never to have happened.

Such is the work of a regressed and chronically manipulated organization. Despite being an organization of psychologists, APA has been subjected to very little analysis. Psychologists are amongst the most moral and ethical people I know. They deserved better from their national organization, just as Americans have deserved better from their government.

This article originally appeared in Psychologist-Psychoanalyst, the newsletter of the Division of Psychoanalysis, Vol. XXVIII, No. 3 (Summer 2008), pp. 6-10.

Bryant L. Welch, JD, PhD is the author of the new book State of Confusion: Political Manipulation and the Assault on the American Mind (Thomas Dunne Books, St. Martin’s Press, June 10, 2008). He established the American Psychological Association Practice Directorate serving as its first executive director and currently lives and practices psychology on Hilton Head Island, SC. He can be reached directly via e-mail at welchfirm@aol.com.

Miles at BMJ on Sanctions for Doctors Who Torture

A new editorial by Steven Miles in the British Medical Journal, Doctors’ complicity with torture: It is time for sanctions (BMJ 2008;337:a1088), describes the serious shortcomings inherent in a society where ethical prohibitions against harm are not backed up by the instrumentation of accountability.

As Dr. Miles laid out in his excellent book, Oath Betrayed: Torture, Medical Complicity and the War on Terror, participation by physicians in the torture of detainees by the military and intelligence agencies is both rampant and uncontrolled by outside ethics or governmental watchdog agencies. While the American Medical Association formally forbids its members participate in such activities, a letter published by The Lancet last year, signed by 260 doctors, pummelled the AMA for not taking the issue of doctor complicity in torture seriously, accusing the U.S. medical establishment for turning

...a blind eye to the abuse of military medicine at the Guantanamo Bay prison in Cuba, doctors from around the world said in a letter published Friday in a prestigious British medical journal.

Health care workers in the U.S. military seem to have put their loyalty to the state above their duty to care for patients -- and American regulatory bodies have done nothing to remedy the situation....

In his new editorial at BMJ, Dr. Miles writes:

The medical profession ought to dissociate itself from torture—a practice that destroys institutions of civil society; that is used against colleagues of conscience, and that has far reaching adverse mental, physical, and social consequences. Instead, medical societies and licensing boards offer lofty condemnation, which is most ardently aimed at offenders abroad rather than accomplices at home.

Doctors who abet torture rarely face professional risks. Governments will not punish a doctor for helping them carry out their crimes. Few medical societies or licensing boards have the courage and constancy of vision to investigate or censure colleagues who carry out the law of the land.

Rather than look to the Nuremberg Trials as an instance of how to hold medical professionals responsible for illegal acts -- being the juridical proceedings of a conquering nation over its vanquished opponent -- Miles cites the attempts by governments in Greece, Chile, and Argentina to sanction and imprison doctors or medical personnel in their own countries that have been implicated in torture or other crimes carried out in the process of engaging in their medical role.

Dr. Miles continues:

A more secure foundation for this kind of accountability can and should be laid. The World Medical Association’s Declaration of Hamburg states that licensing boards should deny licences to doctors who are guilty of war crimes, including torture... Unfortunately, that declaration only applies to immigrating doctors who are accused of crimes in another country....

Countries wax and wane in their practice of torture. Foundations for making doctors accountable for this crime must be laid during periods of civil society. At such times, each national medical society and licensing agency should assert that medical complicity with torture and cruel inhuman or degrading treatment is a punishable breach of medical ethics that cannot be excused by law and for which there is no term limit....

A civilian medical community that acquiesces to torture by its military members cannot credibly protest against foreign doctors who carry out torture. Such a community can hardly support doctors who are endangered for their resistance against torture. The prestige and values of medicine make it a crucial part of the campaign to abolish torture....

The medical accomplices of torture must not rest in the confidence that they can violate civil society and the ethics of medicine with impunity.

Why the Silence on Real Torture Timeline?

Last month, I examined the testimony from the Senate Armed Services Committee hearings on interrogations and torture. The hearings concentrated on the military's Survival, Evasion, Resistance, Escape (SERE) program, and its use of military psychologists hired by the CIA to "reverse-engineer" SERE program elements for use in coercive interrogations by the United States at Guantanamo Bay prison and elsewhere.

The timelines constructed out of this testimony and ancillary documentary evidence showed the Department of Defense turned to SERE for help in interrogating "enemy combatants" in July 2002. At least, that seems the case if you follow the summary given by SASC Committee Chair, Senator Carl Levin, adhered to in subsequent reports by every other journalist (but one).

Except, the timeline was wrong, and that fact is available for anyone to read in black and white. It was also admitted, grudgingly, by Levin himself, in an exchange with me during a "liveblog" session at Firedoglake.

As I wrote in my June 23 article:

While Senator Levin gives a fairly thorough presentation of how SERE techniques migrated to Guantanamo, including discussions and meetings and when they took place, and descriptions (at least in the documents released by the committee) of what kind of techniques were being taught, one date is inexplicably left out which Lt. Col. Baumgarten gave in his testimony. [Baumgarten is former Chief of Staff of Joint Personnel Recovery Agency (JPRA) for the Department of Defense, and administratively responsible for the SERE program.] Levin concentrates upon the late July 2002 request by Richard Shiffrin, a Deputy General Counsel in the Department of Defense, for information on SERE techniques and their effects upon prisoners.... But Baumgarten's own opening statement gives a more nuanced, different story. From [Lt. Col. Baumgarten's] statement, as published online (bold emphasis added):

My recollection of my first communication with [Department of Defense] OGC [Office of General Counsel] relative to techniques was with Mr. Richard Shiffrin in July 2002. However, during my two interviews with Committee staff members last year I was shown documents that indicated I had some communication with Mr. Shiffrin related to this matter in approximately December 2001. Although I do not specifically recall Mr. Shiffrin’s request to the JPRA for information in late 2001, my previous interviews with Committee staff members and review of documents connected with Mr. Shiffrin’s December 2001 request have confirmed to me the JPRA, at that time, provided Mr. Shiffrin information related to this Committee’s inquiry. From what I reviewed last year with Committee staff members, the information involved the exploitation process and historical information on captivity and lessons learned.

Now something is very strange here, as Levin's own staff appear to have documents indicating DoD was asking about SERE techniques in December 2001, eight months before the July 2002 request everyone else is concentrating on. Why this gap? My guess is that it would take us even closer to the Oval Office than Levin or anyone else wants to go at this point. Where are these documents on the December 2001 request? Why did no one on the committee question Baumgarten about this issue during the hearings?

Senator Levin Responds

Learning that Carl Levin was to participate in a "liveblog" discussion at Firedoglake on July 15, I showed up to ask my questions. What follows are my questions and Sen. Levin's responses.

[Valtin:] Sen. Levin, Your timeline for SERE interjection into U.S. torture training goes to July 2002. But Lt. Col. Baumgarten’s own statement indicates that he was approached by Shiffren (or others?) in December 2001. This is verified, supposedly, by documents your committee staffers showed him.

Why are these documents not released? Why isn’t this Dec. 2001 part of the timeline emphasized? Would not this early of an approach to use SERE for reverse-engineering purposes put some in the Administration in greater legal jeopardy, as the OLC rulings on detainees did not come until early 2002?

[Levin:] Lt. Col. Baumgartner did so testify at our hearing. However information relating to his discussions with Shiffrin remains classified. When our report is finalized we will press the DoD to declassify this matter.

[Valtin:] Thank you for your response, Sen. Levin. I suspected this was the case. Can you comment on the significance of a timeline that begins in December 2001 instead of July 2002, as that would help educate the public as to why such documents should be declassified. DoD could certainly do their usual redactions for security purposes. Or is it not just DoD we are talking about here?

Also, Sen. Levin, why wait until your report is “finalized” to press for declassification? That could be many months from now. Why not ask for declassification… now?

[Levin:] We have many pending requests for declassification, and we’re not waiting for our report to be finalized to ask for declassification of numerous documents. The Yoo memo is an example of where we put maximum pressure on for declassification. There is only one minute left in the roll call, so I have to run. Thanks for joining me today.

I hope the reader notices the care with which Sen. Levin made his remarks. He said nothing about the significance of the Baumgartner revelations. He also answered my complaint about the lassitude in pursuing declassification of the relevant documents with a huffy protestation of how the committee is pursuing the declassification of "numerous documents" -- though not necessarily the ones in their possession showing Pentagon OCG approaches to SERE re "the exploitation process" and the "lessons" of captivity and torture interrogation in December 2001.

The Importance of the Timeline

Why bury the information on the December 2001 portion of the timeline, moving the supposedly relevant first approach to SERE to July 2002? The answer is quite simple: the Administration had not gotten all its legal ducks in a row by December 2001, a time when the first detainees, such as so-called "American Taliban", John Walker Lindh, were being captured and tortured by U.S. interrogators in Afghanistan.

Lindh was found barely alive, shot in the leg, and suffering from dehydration, hypothermia and frostbite. Although Lindh was seriously wounded, starving, freezing, and exhausted, U.S. soldiers blindfolded and handcuffed him naked, scrawled “shithead” across the blindfold, duct-taped him to a stretcher for days in an unheated and unlit shipping container, threatened him with death, and posed with him for pictures. Parts of his ordeal were captured on videotape.

From the very beginning of the U.S. "war on terror", post-9/11, Bush Administration lawyers, led by David Addington (as argued so persuasively in Jane Mayer's new book, The Dark Side), looked for ways to deny U.S. and internationally recognized rights to prisoners caught up in the anti-terrorist dragnet and ongoing military operations.

Ultimately, President George W. Bush denied that even minimal Geneva Conventions protections applied to the "illegal enemy combatants" captured by the U.S. Subsequently, in an infamous set of memos written by Addington, Jay Bybee, Alberto Gonzales, John Yoo, and others, long-standing protections against torture and cruel, unusual, and inhumane treatment were taken away from the burgeoning population of prisoners, imprisoned now in ad hoc bases in Afghanistan, held on prison ships, and some subsequently either sent via "extraordinary rendition" to be tortured by foreign "allies", held incommunicado in secret CIA prisons, or shipped to the new U.S. prison constructed at the Guantanamo Naval Base in Cuba.

On February 7, 2002, Bush signed an executive order outlining treatment of al-Qaida and Taliban detainees:

Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:

a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.

b. I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise the authority in this or future conflicts.

c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to "armed conflict not of an international character."

d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.

A list of the Bush Administration documents on interrogation can be found at this Washington Post web page, including the January 22, 2002 memo written by Assistant Attorney General Jay S. Bybee and addressed to White House counsel Alberto R. Gonzales and the Pentagon's general counsel, William J. Haynes II. Bybee argued that that the War Crimes Act and the Geneva Convention did not apply to al Qaeda prisoners; the August 1, 2002 memo to White House counsel Alberto R. Gonzales from Jay S. Bybee of the Justice Department's Office of Legal Counsel concluded that techniques used to interrogate al Qaeda operatives would not violate a 1984 international treaty prohibiting torture", and others documents not mentioned here. (Of course, the WP list doesn't include new memos recently declassified, at least in part, as part of the ACLU Freedom of Information Act lawsuit against the government.)

The crucial point about all these memos and executive orders is that they come afdter the December 2001 approach by officials of the Department of Defense looking -- against all national and international laws, treaties and covenants then in effect -- how to torture prisoners held by the United States. Keeping the "timeline" safely within the July 2002 parameter provides a veneer of legal cover, as flimsy as it might be (since torture is always illegal, and it's not clear that even the Bybee, Yoo, and other memos will protect administration officials against prosecution for war crimes, at least by international tribunal).

While I am no attorney, I strongly believe the December 2001 origin of the timeline exposes officials in the U.S. government to prosecution for war crimes by both domestic and international bodies. Congressional officials, and first among them the members of the Senate Armed Services Committee, have not seen fit to seriously address their watchdog role, satisfying themselves with toothless votes of censure, limited hang-out investigations, and a refusal to pursue impeachment against Bush and Cheney.

A Call to Activists, Attorneys, and Journalists

The December 2001 Baumgartner documents are not going to be declassified, at least not in any timely way, unless public pressure is put upon the government to do so. One little blogger is not going to be enough to push back against bureaucratic inaction and/or obstructionism. Why important reporters and/or press or bloggers have not picked up on this is beyond me, but I will withhold judgment on that score for the time being, if only the delay in coverage is remedied soon.

The smoking gun is out there. And even if these documents do not turn out to be the smoking gun I think they are, the need to know our history for the last seven years, to come to terms with how the U.S. became a torturing nation, demands that we know the truth.

Senator Levin, release the documents from December 2001 that discuss any or all approaches by government officials to Lt. Col. Baumgartner, or other SERE or JPRA individuals or bodies regarding the "exploitation" or interrogation of prisoners in U.S. custody.

Senator Carl Levin can be reached at 269 Russell Office Building, U.S. Senate, Washington, DC 20510-2202. His email link is here. His telephone number is (202) 224-6221; Fax (202) 224-1388; TTY (202) 224-2816.