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The Torture Chronicle December 24, 2012

Posted by rogerhollander in Civil Liberties, Criminal Justice, Human Rights, Torture.
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Roger’s note: Here it is Christmas Eve, 2012, and I am posting yet another article on torture.  Our shameless president may have chosen to “look forward, not backwards” when it comes to prosecuting those responsible for these high crimes.  I for one cannot forget them, nor can I forget the fact that the United States government continues to sow death and destruction around the globe.

By (about the author)
OpEdNews Op Eds 12/23/2012 at 19:46:40

A classified Senate Intelligence Committee report shows the futility of “enhanced interrogation techniques.” 

If there is one word missing from the United States government’s post-9/11 lexicon it is “accountability.” While perfectly legal though illicit sexual encounters apparently continue to rise to the level of high crimes and misdemeanors, leading to resignations, no one has been punished for malfeasance, torture, secret prisons, or extraordinary renditions.

Indeed, the Obama administration stated in 2009 that it would not punish CIA torturers because it prefers to “look forward and not back,” a decision not to prosecute that was recently confirmed by Attorney General Eric Holder in two cases involving the deaths of detainees after particularly brutal Agency interrogations. What the White House decision almost certainly means is that the president would prefer to avoid a tussle with the Republicans in congress over national security that would inevitably reveal a great deal of dirty laundry belonging to both parties.

The bipartisan willingness to avoid confrontation over possible war crimes makes the recently completed 6,000 page long Senate Intelligence Committee report on CIA torture an extraordinary document. Though it is still classified and might well never see the light of day even in any sanitized or bowdlerized form, its principal conclusions have been leaking out in the media over the past two weeks. It directly addresses the principal argument that has been made by Bush administration devotees and continues to be advanced regarding the CIA torture agenda:  that vital information obtained by “enhanced interrogation techniques” led to the killing of Osama bin Laden. According to the report, no information obtained by torture was critical to the eventual assassination of the al-Qaeda leader, nor has it been found to be an indispensable element in any of the other terrorism cases that were examined by the Senate committee.

What exactly does that mean? It means that torture, far from being an essential tool in the counter-terrorism effort, has not provided information that could not be obtained elsewhere and using less coercive methods. Senator Diane Feinstein, who sits on the Senate Intelligence Committee and has had access to the entire classified document, elaborated, explaining that the investigation carried out by the Senate included every detainee held by CIA, examining “the conditions under which they were detained, how they were interrogated, the intelligence they actually provided and the accuracy or inaccuracy of CIA descriptions about the program to the White House, Department of Justice, Congress and others.” It “uncovers startling details about the CIA detention and interrogation program…” The report has 35,000 footnotes and investigators perused 6 million pages of official records, which is why it has taken more than two years to produce.

The Senate inquiry’s conclusions inevitably lead to the assumption that there has been a whole lot of lying and obfuscation going on in connection with the so-called war on terror. To recap major developments, 9/11 unleashed a counter-offensive by the CIA’s Counter Terrorism Center (CTC), which was at the time headed by Cofer “the gloves come off” Black. Secret prisons were established in Europe and Asia, torture was used extensively in the interrogation of suspects, and some detainees were shipped off to friendly intelligence services in places like Egypt for even more aggressive questioning. This was referred to as rendition. Some suspects were snatched off the streets in European and Asian cities before being rendered.

The Justice Department gave its approval for the harsh interrogation techniques in a notorious secret memo drafted by John Yoo and Jay Bybee in 2005 only months after a 2004 public statement in which the selfsame Justice Department declared that torture would not be acceptable. On October 5, 2007, President George W. Bush restated the official position, “This government does not torture people. We stick to U.S. law and our international obligations.”  But he also contradicted himself, elaborating that his administration’s interrogation methods included questioning carried out by “highly-trained professionals.” He explained, “When we find somebody who may have information regarding an attack on America, and you bet we’re going to detain them, you bet we’re going to question them. The American people expect us to find out information, this actionable intelligence, so we can help protect them. That’s our job.”

Since that time the issue of torture itself has become an ideological abstraction, with the neoconservatives, many Republicans, and even some conservative Democrats reflexively supporting it. It has also frequently been debated in the intelligence community. There are undeniably some who believe that all terrorist suspects should be tortured even unto death to tell what they know, but an increasing number of former intelligence officers have expressed doubts over the efficacy of the procedure, a conclusion that is now supported by the Senate findings.

To cite one example of what torture can produce, prominent al-Qaeda figure Khaled Sheikh Mohammed, commonly referred to as KSM, was arrested in 2003 in Pakistan was reportedly water-boarded 183 times and “broken” by his CIA interrogators. He subsequently confessed to being involved in virtually every terrorist act carried out in the previous 20 years, including 9/11, the beheading of journalist Daniel Pearl, and the bombing of the destroyer USS Cole. He clearly was not actually involved in many of the incidents, but he was willing to admit to anything.

There are also other good reasons to oppose torture and torture by proxy through CIA rendition. Most people and governments worldwide believe that torture is immoral, a view that is generally shared by most Americans. Legally there is also a long tradition condemning torture. German and Japanese officers were executed after the Second World War for torturing prisoners and the principle was firmly established that torture, specifically including waterboarding, is a war crime. The US is signatory to the UN’s anti-torture convention, and both the United States Code and specific acts of congress require prosecution of any government employee engaging in such activity. In practical terms, torture also opens up a door that should never be opened by anyone who genuinely cares about US soldiers, diplomats, and intelligence officers stationed at their peril around the world. To put it succinctly, if we do it to them, they will do it to us.

Mistakes are inevitable when one accepts that it is okay to break the rules in favor of more coercive interrogation. To cite one example of how intelligence operations can go wrong, on December 13, the European Court of Human Rights ruled that the United States kidnapped German citizen Khaled el-Masri and he was taken to an airport where he was “Severely beaten, sodomized, shackled and hooded” before being sent on to Afghanistan for more of the same. It turned out to be a case of mistaken identity while subsequent attempts to obtain recompense through the US courts were blocked by the Obama administration, which claimed state secrets privilege.

Another well-documented rendition case, of Canadian citizen Maher Arar, consigned an innocent man to torture in Syria. Yet another rendition, of Milan-based Muslim cleric Abu Omar turned into a prime example of an intelligence operation designed by Monty Python, employing a cast of hundreds at a cost of many millions of dollars. It continues to play out in the Italian courts. Abu Omar was tortured in Egypt and eventually released when it turned out that he had no information of value.

Torture advocates have assiduously cultivated a number of myths, most prominent of which is the “ticking time bomb.” This is a particular favorite of the redoubtable Alan Dershowitz and a number of prominent neocons. It goes like this — a terrorist is captured who has knowledge of an impending attack on a major civilian target, but he won’t cooperate. How to get the information?  Simple. Get an accommodating judge to issue a legal finding that enables you to torture him until he talks, thereby saving lives of innocent civilians.

The only problem with the Dershowitz narrative is that there has never been an actual ticking time bomb. No terrorist has ever been captured, subjected to torture, and provided information that foiled an attack, not even in Israel where routine torture of suspected terrorists captured in flagrante used to be the case (but is now illegal). Advocating a policy of torture, with all that entails, based on a “what if” is fighting evil with more evil, not a solution.

Torture brutalizes and degrades the individual carrying it out, the organization he or she represents, and the government that approves of the practice. The Senate committee report should finally put paid to the arguments being made that it is a reliable interrogation tool, but there still remains the question of accountability. A recent book by Jose A. Rodriguez, who approved and oversaw the CIA torture regime while he served as head of the Counter Terrorism Center and later as Deputy Director of the Clandestine Services, demonstrates that there are still zealots who believe in “extreme measures” in spite of any evidence presented to the contrary. The book is entitled “Hard Measures: How Aggressive CIA Actions after 9/11 Saved American Lives.” Well, apparently that is just not true and perhaps Jose owes the surviving victims of “hard measures” an apology.

 

http://www.councilforthenationalinterest.org

Philip Giraldi is the executive director of the Council for the National  Interest and a recognized authority on international security and  counterterrorism issues. He is a former CIA counter-terrorism specialist and military intelligence officer who served eighteen years overseas in Turkey, Italy, Germany, and Spain. Mr.  Giraldi was awarded an MA and PhD from the University of London in  European History and holds a Bachelor of Arts with Honors from the  University of Chicago. He speaks Spanish, Italian, German, and Turkish. His columns on terrorism, intelligence, and security issues regularly appear in The American Conservative magazine, Huffington Post, and antiwar.com. He has written op-ed pieces for the Hearst Newspaper chain, has  appeared on “Good Morning America,” MSNBC, National Public Radio, and  local affiliates of ABC television. He has been a keynote speaker at the Petroleum Industry Security Council annual meeting, has spoken twice at the American Conservative Union’s annual CPAC convention in Washington, and has addressed several World Affairs Council affiliates. He has been interviewed by the Canadian Broadcasting Corporation, the British  Broadcasting Corporation, Britain’s Independent Television Network, FOX  News, Polish National Television, Croatian National Television,  al-Jazeera, al-Arabiya, 60 Minutes, and other international and domestic broadcasters.

Accountability for Bush’s Torture November 30, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice, Dick Cheney, George W. Bush, Human Rights, Torture.
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Roger’s note: the United States government has a long history of disgraceful behavior, and the Bush/Cheney torture regime is one of the most heinous.  We need to be constantly reminded, and we need to acknowledge that the Obama government’s disregard of its constitutional obligation to prosecute constitutes legal and moral complicity.

By (about the author)
OpEdNews Op Eds 11/29/2012 at 20:45:34

opednews.com

In June 2004, in the wake of the Abu Ghraib scandal,    a notorious memo from August 2002 was leaked . It was written by John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel and it claimed to redefine torture and to authorize its use on prisoners seized in the “war on terror.” I had no idea at the time that its influence would prove to be so long-lasting.
Ten years and four months since it was first issued, that memo — one of two issued on the same day that will forever be known as the “torture memos” — is still protecting the senior Bush administration officials who commissioned it (as well as Yoo and his boss, Jay S. Bybee, who signed it).

Those officials include George W. Bush, former Vice President Dick Cheney, and their senior lawyers, Alberto Gonzales and David Addington. None of them should be immune from prosecution, because torture is illegal under U.S. domestic law and is prohibited under the terms of the UN Convention Against Torture, which the United States, under Ronald Reagan, signed in 1988 and ratified in 1994. As Article 2.2 states, unequivocally, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

However, the architects of the torture program didn’t care, and still don’t care, because for them the disgraceful memos written by Yoo were designed to be a “golden shield,” a guarantee that, whatever they did, they were covered, because they had legal advice telling them that torture was not torture.

Barack Obama came into office promising to ban the use of torture. His administration released the second Yoo and Bybee “torture memo” and three later “torture memos” from 2005 as part of a court case in April 2009. That, however, was the end of the Obama administration’s flirtation with accountability. In court, every avenue that lawyers have tried to open up has been aggressively shut down by the government, citing the “state secrets doctrine,” another “golden shield” for torturers, which prohibits the discussion of anything the government doesn’t want discussed, for spurious reasons of national security.

The only other opportunity to stop the rot came three years ago, when an internal DoJ ethics investigation concluded, after several years of diligent work, that Yoo and Bybee were guilty of “professional misconduct” when they wrote and signed the memos. That could have led to their being disbarred, which would have been inconvenient for a law professor at UC Berkeley (Yoo) and a judge in the Ninth Circuit Court of Appeals (Bybee). It also might well have set off ripples that would have led to Bush and Cheney and their lawyers.

However, at the last minute a long-time DoJ fixer, David Margolis, was allowed to override the report’s conclusions, claiming that both men were guilty only of “poor judgment,” which, he alleged, was understandable in the aftermath of the 9/11 attacks, and which carried no sanctions whatsoever.

Thwarted in the United States, those seeking accountability have had to seek it elsewhere: in Spain; in Poland, where one of the CIA’s “black sites” was located; and in Italy, where 23 Americans — 22 CIA agents and an Air Force colonel — were convicted in November 2009, in a ruling that was upheld on appeal in September this year, of kidnapping an Egyptian cleric, Abu Omar, and rendering him to Egypt, where he was tortured.

The United States has refused to extradite any of the men and women convicted in Italy, but the ruling is a reminder that not everyone around the world believes in Yoo’s and Bybee’s “golden shield.”

Moreover, although senior Bush administration officials — Bush and Cheney themselves and Donald Rumsfeld — have so far evaded accountability, their ability to travel the world freely has been hampered by their actions. In February 2011, for example, Bush called off a visit to Switzerland when he was notified that lawyers — at the New York-based Center for Constitutional Rights (CCR) and the Berlin-based European Center for Constitutional and Human Rights — had prepared a massive torture indictment that was to be presented to the Swiss government the moment he landed in the country.

The former president was told that foreign countries might take their responsibilities under the UN Convention Against Torture more seriously than America has and arrest him on the basis that his home country had failed to act on the clear evidence that he had authorized torture, which he had actually boasted about in his memoir, Decision Points, published in November 2010.

Most recently, lawyers seeking accountability have tried pursuing Bush in Canada. Last September, prior to a visit by the former president, CCR and the Canadian Centre for International Justice (CCIJ) submitted a 69-page draft indictment to Attorney General Robert Nicholson, along with more than 4,000 pages of supporting material setting forth the case against Bush for torture.

When that was turned down, the lawyers launched a private prosecution in Provincial Court in Surrey, British Columbia, on behalf of four Guantanamo prisoners — Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani, and Murat Kurnaz (all released, with the exception of bin Attash) — on the day of Bush’s arrival in Canada.

That avenue also led nowhere because the attorney general of British Columbia swiftly intervened to shut down the prosecution. Undeterred, however, CCR and CCIJ last week tried a new approach on behalf of those four men who, as Katherine Gallagher of CCR explained in the Guardian, “are all survivors of the systematic torture program the Bush administration authorized and carried out in locations including Afghanistan, Iraq, Guantánamo, and numerous prisons and CIA “black sites’ around the world.”

“Between them,” she added, “they have been beaten; hung from walls or ceilings; deprived of sleep, food, and water; and subjected to freezing temperatures and other forms of torture and abuse while held in U.S. custody.”

The new approach taken by the lawyers was to file a complaint with the UN Committee Against Torture, in which the four men “are asking one question: how can the man responsible for ordering these heinous crimes openly enter a country that has pledged to prosecute all torturers regardless of their position and not face legal action?”

As Gallagher explained, “Canada should have investigated these crimes. The responsibility to do so is embedded in its domestic criminal code that explicitly authorizes the government to prosecute torture occurring outside Canadian borders. There is no reason it cannot apply to former heads of state, and indeed, the convention has been found to apply to such figures including Hissène Habré [the former president of Chad] and Augusto Pinochet.”

That is true, and it will be interesting to see how the UN Committee Against Torture responds. Probably the “golden shield” will not need to be invoked once more by the United States, as the Canadian government evidently has no wish to annoy its neighbor. Moreover, it has its own appalling track record when it comes to preserving human rights in the “war on terror,” as the cases of Omar Khadr in Guantanamo, and Mahar Arar and others who were tortured in Syria demonstrate. However, the submission is to be commended for reminding people that great crimes — committed by the most senior U.S. officials and their lawyers — still remain unpunished, and that that is a situation that ought to be considered a major disgrace rather than something to be brushed aside.

War Tribunal Finds Bush, Cheney Guilty of War Crimes May 13, 2012

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture, War on Terror.
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Published on Sunday, May 13, 2012 by Common Dreams

 

Kuala Lumpur War Crimes Tribunal orders reparations be given to torture victims

- Common Dreams staff

Former US President George W Bush, his Vice-President Dick Cheney and six other members of his administration have been found guilty of war crimes by a tribunal in Malaysia.

Kuala Lumpur War Crimes Tribunal president judge Tan Sri Lamin Mohd Yunus (center) delivering the verdict yesterday. He is flanked by says reparations should be given to the complainant war crime victims. With him are Prof Salleh Buang (left) and Datuk Mohd Sa’ari Yusof. (Photo/Hasriyasyah Sabudin) Bush, Cheney, Defense Secretary Donald Rumsfeld and five of their legal advisers were tried in their absence and convicted on Saturday.

Victims of torture told a panel of five judges in Kuala Lumpur of their suffering at the hands of US soldiers and contractors in Iraq and Afghanistan.

Among the evidence, Briton Moazzam Begg, an ex-Guantanamo detainee, said he was beaten, put in a hood and left in solitary confinement. Iraqi woman Jameelah Abbas Hameedi said she was stripped and humiliated in the notorious Abu Ghraib prison.

Transcripts of the five-day trial will be sent to the chief prosecutor at the International Criminal Court, the United Nations and the Security Council.

A member of the prosecution team, Professor Francis Boyle of Illinois University’s College of Law, said he was hopeful that Bush and his colleagues could soon find themselves facing similar trials elsewhere in the world.

The eight accused are Bush; former US Vice President Richard Cheney; former US Defense secretary Donald Rumsfeld; former Counsel to Bush, Alberto Gonzales; former General Counsel to the Vice President, David Addington; former General Counsel to the Defense Secretary, William Haynes II; former Assistant Attorney General Jay Bybee and former Deputy Assistant Attorney General John Yoo.

Tribunal president judge Tan Sri Lamin Mohd Yunus said the eight accused were also individually and jointly liable for crimes of torture in accordance with Article 6 of the Nuremberg Charter. “The US is subject to customary international law and to the principles of the Nuremberg Charter and exceptional circumstances such as war, instability and public emergency cannot excuse torture.”

* * *

The Star (Kuala Lumpur, Malaysia) reports:

Bush Found Guilty of War Crimes

KUALA LUMPUR: The War Crimes Tribunal has convicted former US President George W. Bush and seven of his associates as war criminals for torture and inhumane treatment of war crime victims at US military facilities.

However, being a tribunal of conscience, the five-member panel chaired by tribunal president judge Lamin Mohd Yunus had no power to enforce or impose custodial sentence on the convicted eight.

“We find the witnesses, who were victims placed in detention illegally by the convicted persons and their government, are entitled to payment of reparations,” said Lamin at a public hearing held in an open court at the Kuala Lumpur Foundation to Crimi­na­lize War yesterday.

He added that the tribunal’s award of reparations would be submitted to the War Crimes Commission and recommended the victims to find a judiciary entity that could enforce the verdict.

The tribunal would also submit the finding and records of the proceedings to the Chief Prosecutor of the International Criminal Court, the United Nations’ Security Council.

On Thursday, head of the prosecution Prof Gurdial Singh Nijar said Bush had issued an executive order to commit war crimes in Iraq and Afghanistan.

Five former Iraqi detainees, who were tortured while being detained in various prisons, including Guantanamo Bay, were called to give their testimonies before the Tribunal during the trial which started on May 7.

* * *

The Malaysia Sun reports:

[...] In a unanimous vote on Saturday the symbolic Malaysian war crimes tribunal, part of an initiative by former Malaysian premier Mahathir Mohamad, found the former US President guilty of war crimes and crimes against humanity.

Former Malaysian Premier Mahatir Mohamad said of Bush and others: “These are basically murderers and they kill on large scale.”Seven of his former political associates, including former Vice President Dick Cheney and former Defense Secretary Donald Rumsfeld, were also found guilty of war crimes and torture.

Press TV has reported the court heard evidence from former detainees in Iraq and Guantanamo Bay of torture methods used by US soldiers in prisons run by the American forces.

One former inmate described how he had been subjected to electric shocks, beatings and sexual abuse over a number of months.

A high ranking former UN official, former UN Assistant Secretary General, Denis Halliday, who also attended the trial, later told Press TV that the UN had been too weak during the Bush administration to enforce the Geneva Conventions.

He said: “The UN is a weak body, corrupted by member states, who use the Security Council for their own interests. They don’t respect the charter. They don’t respect the international law. They don’t respect the Geneva Conventions… A redundant, possibly a dangerous, and certainly corrupted organization.”

Following the hearing, former Malaysian premier Mahatir said of Bush and others: “These are basically murderers and they kill on large scale.”

It was the second so-called war crimes tribunal in Malaysia.

The token court was first held in November 2011 during which Bush and former British Prime Minister Tony Blair were found guilty of committing “crimes against peace” during the Iraq war.

Welcome to Boston, Mr. Rumsfeld. You Are Under Arrest. September 23, 2011

Posted by rogerhollander in Criminal Justice, Human Rights, Iraq and Afghanistan, Torture.
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http://www.opednews.com/articles/1/Welcome-to-Boston-Mr-Rum-by-Ralph-Lopez-110920-706.html

September 23, 2011

By Ralph Lopez

(about the author)
Former Secretary of Defense Donald Rumsfeld has been stripped of legal immunityfor acts of torture against US citizens authorized while he was in office.   The 7th Circuit made the ruling in the case of two American contractors who were tortured by the US military in Iraq after uncovering a smuggling ring within an Iraqi security company.  The company was under contract to the Department of Defense.   The company was assisting Iraqi insurgent groups in the “mass acquisition” of American weapons.  The ruling comes as Rumsfeld begins his book tour with a visit to Boston on Monday, September 26, and as new, uncensored photos of Abu Ghraib spark fresh outrage across Internet.  Awareness is growing that Bush-era crimes went far beyond mere waterboarding.

Torture Room, Abu Ghraib

Republican Senator Lindsey Graham told reporters in 2004of photos withheld by the Defense Department from Abu Ghraib, “The American public needs to understand, we’re talking about rape and murder here…We’re not just talking about giving people a humiliating experience. We’re talking about rape and murder and some very serious charges.”  And journalist Seymour Hersh says: “boys were sodomized with the cameras rolling. And the worst above all of that is the soundtrack of the boys shrieking that your government has.”

Rumsfeld resigned days before a criminal complaintwas filed in Germany in which the American general who commanded the military police battalion at Abu Ghraib had promised to testify.  General Janis Karpinski in an interview with Salon.comwas asked: “Do you feel like Rumsfeld is at the heart of all of this and should be held completely accountable for what happened [at Abu Ghraib]?”

Karpinski answered: “Yes, absolutely.”  In the criminal complaint filed in Germany against Rumsfeld, Karpinski submitted 17 pages of testimonyand offered to appear before the German prosecutor as a witness.  Congressman Kendrick Meek of Florida, who participated in the hearings on Abu Ghraib, said of Rumsfeld: “There was no way Rumsfeld didn’t know what was going on. He’s a guy who wants to know everything.”

And Major General Antonio Taguba, who led the official Army investigation into Abu Ghraib, said in his report:

“there is no longer any doubt as to whether the [Bush] administration has committed war crimes. The only question is whether those who ordered the use of torture will be held to account.”

Abu Ghraib Prisoner Smeared with Feces

In a puzzling and incriminating move, Camp Cropper base commander General John Gardner ordered Nathan Ertel released on May 17, 2006, while keeping Donald Vance in detention for another two months of torture.  By ordering the release of one man but not the other, Gardner revealed awareness of the situation but prolonged it at the same time.

It is unlikely that Gardner could act alone in a situation as sensitive as the illegal detention and torture of two Americans confirmed by the FBI to be working undercover in the national interest, to prevent American weapons and munitions from reaching the hands of insurgents, for the sole purpose of using them to kill American troops.  Vance and Ertel suggest he was acting on orders from the highest political level.

The forms of torture employed against the Americans included “techniques” which crop up frequently in descriptions of Iraqi and Afghan prisoner abuse at Bagram, Guantanamo, and Abu Ghraib.  They included “walling,” where the head is slammed repeatedly into a concrete wall, sleep deprivation to the point of psychosis by use of round-the-clock bright lights and harsh music at ear-splitting volume, in total isolation, for days, weeks or months at a time, and intolerable cold.

The 7th Circuit ruling is the latest in a growing number of legal actions involving hundreds of former prisoners and torture victims filed in courts around the world.  Criminal complaints have been filed against Rumsfeld and other Bush administration officials in Germany, France, and Spain.  Former President Bush recently curbed travel to Switzerlanddue to fear of arrest following criminal complaints lodged in Geneva.  “He’s avoiding the handcuffs,” Reed Brody, counsel for Human Rights Watch, told Reuters.  And this month Canadian citizens forced Bush to cancel an invitation-only appearance in Toronto.

And the Mayor of London threatened Bush with arrest for war crimes earlier this year should he ever set foot in his city, saying that were heto land in London to “flog his memoirs,” that “the real trouble — from the Bush point of view — is that he might never see Texas again.”

Former Secretary of State Colin Powell’s Chief-of-Staff Col. Lawrence Wilkerson surmised on MSNBCearlier this year that soon, Saudi Arabia and Israel will be “the only two countries Cheney, Rumsfeld and the rest will travel too.”

Abu Ghraib: Dog Bites

What would seem to make Rumsfeld’s situation more precarious is the number of credible former officials and military officers who seem to be eager to testify against him, such as Col. Wilkerson and General Janis Karpinsky.

In a signed declaration in support of torture plaintiffs in a civil suit naming Rumsfeld in the US District Court for the District of Columbia, Col. Wilkerson, one of Rumsfeld’s most vociferous critics,  stated:“I am willing to testify in person regarding the  content of this declaration, should that be necessary.”  That declaration, among other things, affirmed that a documentary on the chilling murder of a 22-year-old Afghan farmer and taxi driver in Afghanistan was “accurate.”  Wilkerson said earlier this yearthat in that case, and in the case of another murder at Bagram at about the same time, “authorization for the abuse went to the very top of the United States government.”

Dilawar

The young farmer’s name was Dilawar.  The New York Times reported on May 20, 2005:

“Four days before [his death,] on the eve of the Muslim holiday of Id al-Fitr, Mr. Dilawar set out from his tiny village of Yakubi in a prized new possession, a used Toyota sedan that his family bought for him a few weeks earlier to drive as a taxi.
On the day that he disappeared, Mr. Dilawar’s mother had asked him to gather his three sisters from their nearby villages and bring them home for the holiday. However, he needed gas money and decided instead to drive to the provincial capital, Khost, about 45 minutes away, to look for fares.”

Dilawar’s misfortune was to drive past the gate of an American base which had been hit by a rocket attack that morning.  Dilawar and his fares were arrested at a checkpoint by a warlord, who was later suspected of mounting the rocket attack himself, and then turning over randam captures like Dilawar in order to win trust.

The UK Guardian reports:

“Guards at Bagram routinely kneed prisoners in their thighs — a blow called a “peroneal strike”…Whenever a guard did this to Dilawar, he would cry out, “Allah! Allah!” Some guards apparently found this amusing, and would strike him repeatedly to show off the behavior to buddies.
One military policeman told investigators, “Everybody heard him cry out and thought it was funny. … It went on over a 24-hour period, and I would think that it was over 100 strikes.””

The New York Times reported that on the last day of his life, four days after he was arrested:

“Mr. Dilawar asked for a drink of water, and one of the two interrogators, Specialist Joshua R. Claus, 21, picked up a large plastic bottle. But first he punched a hole in the bottom, the interpreter said, so as the prisoner fumbled weakly with the cap, the water poured out over his orange prison scrubs. The soldier then grabbed the bottle back and began squirting the water forcefully into Mr. Dilawar’s face.
“Come on, drink!” the interpreter said Specialist Claus had shouted, as the prisoner gagged on the spray. “Drink!”

At the interrogators’ behest, a guard tried to force the young man to his knees. But his legs, which had been pummeled by guards for several days, could no longer bend. An interrogator told Mr. Dilawar that he could see a doctor after they finished with him. When he was finally sent back to his cell, though, the guards were instructed only to chain the prisoner back to the ceiling.

“Leave him up,” one of the guards quoted Specialist Claus as saying.”

The next time the prison medic saw Dilawar a few hours later, he was dead, his head lolled to one side and his body beginning to stiffen.  A coroner would testify that his legs “had basically been pulpified.”The Army coroner, Maj. Elizabeth Rouse, said: “I’ve seen similar injuries in an individual run over by a bus.” She testified that had he lived, Dilawar’s legs would have had to be amputated.

Despite the military’s false statement that Dilawar’s death was the result of “natural causes,” Maj. Rouse marked the death certificate as a “homicide” and arranged for the certificate to be delivered to the family.  The military was forced to retract the statement when a reporter for the New York Times, Carlotta Gall, tracked down Dilawar’s family in Afghanistan and was given a folded piece of paper by Dilawar’s brother.  It was the death certificate, which he couldn’t read, because it was in English.

The practice of forcing prisoners to stand for long periods of time, links Dilawar’s treatment to a memo which bears Rumsfeld’s own handwriting on that particular subject.  Obtained through a Freedom of Information Act Request, the memo may show how fairly benign-sounding authorizations for clear circumventions of the Geneva Conventions may have translated into gruesome practice on the battlefield.

The memo, which addresses keeping prisoners “standing” for up to four hours, is annotated with a note initialed by Rumsfeld reading: “”I stand for 8–10 hours a day. Why is standing limited to 4 hours?”  Not mentioned in writing anywhere is anything about accomplishing this by chaining prisoners to the ceiling.  There is evidence that, unable to support his weight on tiptoe for the days on end he was chained to the ceiling, Dilawars arms dislocated, and they flapped around uselessly when he was taken down for interrogation.  The National Catholic Reporter writes “They flapped like a bird’s broken wings”

Contradicting, on the record, a February 2003 statement by Rumsfeld’s top commander in Afghanistan at the time, General Daniel McNeill, that “we are not chaining people to the ceilings,” is Spc. Willie Brand, the only soldier disciplined in the death of Dilawar, with a reduction in rank.  Told of McNeill’s statement, Brand told Scott Pelley on 60 Minutes: “Well, he’s lying.”  Brand said of his punishment: “I didn’t understand how they could do this after they had trained you to do this stuff and they turn around and say you’ve been bad”

Exhibit: Dilawar Death Certificate marked “homicide”

Exhibit: Rumsfeld Memo: “I stand 8-10 hours a day.  Why only 4 hours?”

Dilawar’s daughter and her grandfather

Binyam, Genital-Slicing

Binyam Mohamed was seized by the Pakistani Forces in April 2002 and turned over to the Americans for a $5,000 bounty.  He was held for more than five years without charge or trial in Bagram Air Force Base, Guantánamo Bay, and third country “black” sites.

“They cut off my clothes with some kind of doctor’s scalpel. I was naked. I tried to put on a brave face. But maybe I was going to be raped. Maybe they’d electrocute me. Maybe castrate me…
One of them took my penis in his hand and began to make cuts. He did it once, and they stood still for maybe a minute, watching my reaction. I was in agony. They must have done this 20 to 30 times, in maybe two hours. There was blood all over. “I told you I was going to teach you who’s the man,” [one] eventually said.

They cut all over my private parts. One of them said it would be better just to cut it off, as I would only breed terrorists. I asked for a doctor.”

I was in Morocco for 18 months. Once they began this, they would do it to me about once a month. One time I asked a guard: “What’s the point of this? I’ve got nothing I can say to them. I’ve told them everything I possibly could.”

“As far as I know, it’s just to degrade you. So when you leave here, you’ll have these scars and you’ll never forget. So you’ll always fear doing anything but what the US wants.”

Later, when a US airplane picked me up the following January, a female MP took pictures. She was one of the few Americans who ever showed me any sympathy. When she saw the injuries I had she gasped. They treated me and took more photos when I was in Kabul. Someone told me this was “to show Washington it’s healing”.

The obvious question for any prosecutor in Binyam’s case is: Who does “Washington” refer to?  Rumsfeld?  Cheney?  Is it not in the national interest to uncover these most depraved of sadists at the highest level?  US Judge Gladys Kessler, in her findings on Binyam made in relation to a Guantanamo prisoner’s petition, found Binyam exceedingly credible.  She wrote:

“His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in plots to imperil Americans. The government does not dispute this evidence.”

Obama: Torturers’ Last Defense

The prospect of Rumsfeld in a courtroom cannot possibly be relished by the Obama administration, which has now cast itself as the last and staunchest defender of the embattled former officials, including John Yoo, Alberto Gonzalez, Judge Jay Bybee, Dick Cheney, George W. Bush, and others.  The administration employed an unprecedented twisting of arms in order to keep evidence in a lawsuit which Binyam had filedin the UK suppressed, threatening an end of cooperation between the British MI5 and the CIA.  This even though the British judges whose hand was forced puzzled that the evidence “contained “no disclosure of sensitive intelligence matters.”  The judges suggested another reason for the secrecy requested by the Obama administration, that it might be “politically embarrassing.”

The Obama Justice Department’s active involvement in seeking the dismissal of the cases is by choice, as the statutory obligation of the US Attorney General to defend cases against public officials ends the day they leave office.  Indeed, the real significance of recent court decisions, the one by the 7th Circuit and yet another against Rumsfeld in a DC federal court, may be the clarification the common misconception that high officials are forever immune for crimes committed while in office, in the name of the state.  The misconception persists despite just a moment of thought telling one that if this were true, Hermann Goering, Augusto Pinochet, and Charles Taylor would never have been arrested, for they were all in office at the time they ordered atrocities, and they all invoked national security.

Andy Worthington writes that:

“As it happens, one of the confessions that was tortured out of Binyam is so ludicrous that it was soon dropped…The US authorities insisted that Padilla and Binyam had dinner with various high-up members of al-Qaeda the night before Padilla was to fly off to America. According to their theory the dinner party had to have been on the evening of 3 April in Karachi … Binyam was  meant to have dined with Khalid Sheikh Mohammed, Abu Zubaydah, Sheikh al-Libi, Ramzi bin al-Shibh and Jose Padilla.” What made the scenario “absurd,” as [Binyam's lawyer] pointed out, was that “two of the conspirators were already in U.S. custody at the time — Abu Zubaydah was seized six days before, on 28 March 2002, and al-Libi had been held since November 2001.””

The charges against Binyam were dropped, after the prosecutor, Lieutenant Colonel Darrel Vandeveld, resigned. He told the BBC later that he had concerns at the repeated suppression of evidence that could prove prisoners’ innocence.

The litany of tortures alleged against Rumsfeld in the military prisons he ran could go on for some time.  The new photographic images from Abu Ghraib make it hard to conceive of how the methods of torture and dehumanization could have possibly served a national purpose.

The approved use of attack dogs, sexual humiliation, forced masturbation, and treatments which plumb the depths of human depravity are either documented in Rumsfeld’s own memos, or credibly reported on.

The UK Guardian writes:

The techniques devised in the system, called R2I – resistance to interrogation – match the crude exploitation and abuse of prisoners at the Abu Ghraib jail in Baghdad.

One former British special forces officer who returned last week from Iraq, said: “It was clear from discussions with US private contractors in Iraq that the prison guards were using R2I techniques, but they didn’t know what they were doing.””

Torture Now Aimed at Americans, Programs Designed to Obtain False Confessions, Not Intelligence

The worst of the worst is that Rumsfeld’s logic strikes directly at the foundations of our democracy and the legitimacy of the War on Terror.  The torture methods studied and adopted by the Bush administration were not new, but adopted from the Survival, Evasion, Resistance, and Escape program (SERE) which is taught to elite military units.  The program was developed during the Cold War, in response to North Korean, Chinese, and Soviet Bloc torture methods.  But the aim of those methods was never to obtain intelligence, but to elicit false confessions.  The Bush administration asked the military to “reverse engineer” the methods, i.e. figure out how to break down resistance to false confessions.

In the 2008 Senate Armed Services Committee reportwhich indicted high-level Bush administration officials, including Rumsfeld, as bearing major responsibility for the torture at Abu Gharib, Guantanamo, and Bagram, the Committee said:

“SERE instructors explained “Biderman’s Principles” — which were based on coercive methods used by the Chinese Communist dictatorship to elicit false confessions from U.S. POWs during the Korean War — and left with GTMO personnel a chart of those coercive techniques.”

The Biderman Principles were based on the work of Air Force Psychiatrist Albert Biderman, who wrote the landmark “Communist Attempts to Elecit False Confessions from Air Force Prisoners of War,” on which SERE resistance was based.  Biderman wrote:

“The experiences of American Air Force prisoners of war in Korea who were pressured for false confessions, enabled us to compile an outline of methods of eliciting compliance, not much different, it turned out, from those reported by persons held by Communists of other nations.  I have prepared a chart showing a condensed version of this outline.”

The chart is a how-to for communist torturers interested only in false confessions for propaganda purposes, not intelligence.  It was the manual for, in Biderman’s words, “brainwashing.”  In the reference for Principle Number 7, “Degradation,” the chart explains:

“Makes Costs of Resistance Appear More Damaging to Self-Esteem than Capitulation; Reduces Prisoner to “Animal Level…Personal Hygiene Prevented; Filthy, Infested Surroundings; Demeaning Punishments; Insults and Taunts; Denial of Privacy”

Appallingly, this could explain that even photos such as those of feces-smeared prisoners at Abu Ghraib might not, as we would hope, be only the individual work of particularly demented guards, but part of systematic degradation authorized at the highest levels.

Exhibit: Abu Ghraib, Female POW

This could go far toward explaining why the Bush administration seemed so tone-deaf to intelligence professionals, including legendary CIA Director William Colby, who essentially told them they were doing it all wrong.  A startling level of consensus existed within the intelligence community that the way to produce good intelligence was to gain the trust of prisoners and to prove everything they had been told by their recruiters, about the cruelty and degeneracy of America, to be wrong.

But why would the administration care about what worked to produce intelligence, if the goal was never intelligence in the first place?  What the Ponzi scheme of either innocent men or low-level operatives incriminating each other  DID accomplish, was produce a framework of rapid successes and trophies in the new War on Terror.

And now, American contractors Vance and Ertel show, unless there are prosecutions, the law has effectively changed and they can do it to Americans. Jane Mayer in the New Yorker describes a new regime for prisoners which has become coldly methodical, quoting a report issued by the Parliamentary Assembly of the Council of Europe, titled “Secret Detentions and Illegal Transfers of Detainees.”  In the report on the CIA paramilitary Special Activities Division detainees were “taken to their cells by strong people who wore black outfits, masks that covered their whole faces, and dark visors over their eyes.”

Mayer writes that a former member of a C.I.A. transport team has described the “takeout” of prisoners as:

“a carefully choreographed twenty-minute routine, during which a suspect was hog-tied, stripped naked, photographed, hooded, sedated with anal suppositories, placed in diapers, and transported by plane to a secret location.”

A person involved in the Council of Europe inquiry, referring to cavity searches and the frequent use of suppositories, likened the treatment to “sodomy.” He said, “It was used to absolutely strip the detainee of any dignity. It breaks down someone’s sense of impenetrability.”

Of course we have seen these images before, in the trial balloon treatment of Jose Padilla, the first American citizen arrested and declared “enemy combatant” in the first undeclared war without end.  The designation placed Padilla outside of his Bill of Rights as an American citizen even though he was arrested on American soil.  Padilla was kept in isolation and tortured for nearly 4 years before being released to a civilian trial, at which point according to his lawyer he was useless in his own defense, and exhibited fear and mistrust of everyone, complete docility, and a range of nervous facial tics.

Jose Padilla in Military Custody

Rumsfeld’s avuncular “golly-gee, gee-whiz”  performances in public are legendary.  Randall M. Schmidt, the Air Force Lieutenant General appointed by the Army to investigate abuses at Guantanamo, and who recommended holding Rumsfeld protege and close associate General Geoffrey Miller “accountable” as the commander of Guantanamo, watched Rumsfeld’s performance before a House Committee with some interest. “He was going, “My God! Did I authorize putting a bra and underwear on this guy’s head and telling him all his buddies knew he was a homosexual?’ “

But General Taguba said of Rumsfeld: “Rummy did what we called “case law’ policy — verbal and not in writing. What he’s really saying is that if this decision comes back to haunt me I’ll deny it.”

Taguba went on: “Rumsfeld is very perceptive and has a mind like a steel trap. There’s no way he’s suffering from C.R.S.–Can’t Remember sh*t.”

Miller was the general deployed by Rumsfeld to “Gitmo-ize” Abu Ghraib in 2003 after Rumsfeld had determined they were being too “soft” on prisoners.  He said famously in one memo “you have to treat them like dogs.”  General Karpinski questioned the fall of Charles Graner and Lyndie England as the main focus of low-level “bad apple” abuse in the Abu Ghraib investigations.  “Did Lyndie England deploy with a dog leash?” she asks.

Exhibit: Dog deployed at Abu Ghraib, mentally-ill prisoner

Abu Ghraib prisoner in “restraint” chair, screaming “Allah!!”

Rumsfeld’s worry now is the doctrine of Universal Jurisdiction, as well as ordinary common law.  The veil of immunity stripped in civil cases would seem to free the hand of any prosecutor who determines there is sufficient evidence that a crime has been committed based on available evidence.  A grand jury’s bar for opening a prosecution is minimal.  It has been said “a grand jury would indict a ham sandwich.”  Rumsfeld, and the evidence against him, would certainly seem to pass this test.

The name Dilawar translates to English roughly as “Braveheart.”  Let us pray he had one to endure the manner of his death.  But the more spiritual may believe that somehow it had a purpose, to shock the world and begin the toppling of unimaginable evil among us.  Dilawar represented the poorest of the poor and most powerless, wanting only to pick up his three sisters, as his mother had told him to, for the holiday.  The question now is whether Americans will finally draw a line, as the case against Rumsfeld falls into place and becomes legally bulletproof.  Andy Worthington noted that the case for prosecutors became rock solid when Susan Crawford, senior Pentagon official overseeing the Military Commissions at Guantánamo — told Bob Woodward that the Bush administration had “met the legal definition of torture.”

As Rumsfeld continues his book tour and people like Dilawar are remembered, it is not beyond the pale that an ambitious prosecutor, whether local, state, or federal, might sense the advantage.  It is perhaps unlikely, but not inconceivable, that upon landing at Logan International Airport on Wed., Sept. 21st, or similarly anywhere he travels thereafter, Rumsfeld could be greeted with the words such as: “Welcome to Boston, Mr. Secretary.  You are under arrest.”

Take action — click here to contact your local newspaper or congress people:
Prosecute Rumsfeld NOW for torture!

Click here to see the most recent messages sent to congressional reps and local newspapers

Massachusetts District Attorneys Who Can Indict Rumsfeld, Please Email them this post and call them.SAMPLE INDICTMENT
LEGAL BACKGROUND

RELEVANT US CODE:

a. Conspiracy to torture in violation of the U.S. Code, in both Title 18, Section 2340

b. Conspiracy to commit war crimes including torture, cruel or inhuman treatment, murder, mutilation or maiming and intentionally causing serious bodily injury in violation of Title 18, Section 2441

Massachusetts Attorney General Martha Coakley:
email:  Email address removed

One Ashburton Place
Boston, MA 02108 -1518
Phone: (617) 727-2200 begin_of_the_skype_highlighting            (617) 727-2200     end_of_the_skype_highlighting

//

And Gov. Duval Patrick has an obligation to order the state police to do the same: CONTACT FORM

Local District Attorneys
Berkshire County: District Attorney David F. Capeless
Elected November 2006
OFFICE ADDRESS:     P.O. Box 973
888 Purchase Street
New Bedford, MA 02741
PHONE:     (508) 997-0711 begin_of_the_skype_highlighting            (508) 997-0711     end_of_the_skype_highlighting
FAX:     (508) 997-0396
INTERNET ADDRESS:     http://www.bristolda.com

Bristol County     District Attorney C. Samuel Sutter
Appointed March 2004
Elected November 2004
OFFICE ADDRESS:     7 North Street
P.O. Box 1969
Pittsfield, MA 01202-1969
PHONE:     (413) 443-5951 begin_of_the_skype_highlighting            (413) 443-5951     end_of_the_skype_highlighting
FAX:     (413) 499-6349
Internet Address:     http://www.mass.gov/…

Cape & Islands     District Attorney Michael O’Keefe
Elected November 2002
OFFICE ADDRESS:     P.O.Box 455
3231 Main Street
Barnstable, MA 02630
PHONE:     (508) 362-8113 begin_of_the_skype_highlighting            (508) 362-8113     end_of_the_skype_highlighting
FAX:     (508) 362-8221
INTERNET ADDRESS:     http://www.mass.gov/…

Essex County: District Attorney Jonathan W. Blodgett
Elected November 2002
OFFICE ADDRESS:     Ten Federal Street
Salem, MA 01970
PHONE:     (978) 745-6610 begin_of_the_skype_highlighting            (978) 745-6610     end_of_the_skype_highlighting
FAX:     (978) 741-4971
INTERNET ADDRESS:     http://www.mass.gov/…

Hampden     District Attorney Mark Mastroianni
Elected 2010
OFFICE ADDRESS:     Hall of Justice
50 State Street
Springfield, MA 01103
PHONE:     (413) 747-1000 begin_of_the_skype_highlighting            (413) 747-1000     end_of_the_skype_highlighting
FAX:     (413) 781-4745

Middlesex County: District Attorney Gerard T. Leone, Jr.
Elected November 2006
OFFICE ADDRESS:     15 Commonwealth Avenue
Woburn, MA 01801
PHONE:     (781) 897-8300 begin_of_the_skype_highlighting            (781) 897-8300     end_of_the_skype_highlighting
FAX:     ((781) 897-8301
INTERNET ADDRESS:     http://www.middlesexda.com

Norfolk     District Attorney Michael Morrissey
Elected 2010
OFFICE ADDRESS:     45 Shawmut Ave.
Canton, MA 02021
PHONE:     (781) 830-4800 begin_of_the_skype_highlighting            (781) 830-4800     end_of_the_skype_highlighting
FAX:     (781) 830-4801
INTERNET ADDRESS:     http://www.mass.gov/…

Northwestern     District Attorney David Sullivan
Elected 2010
HAMPSHIRE OFFICE ADDRESS:     One Gleason Plaza
Northampton, MA 01060
PHONE:     (413) 586-9225 begin_of_the_skype_highlighting            (413) 586-9225     end_of_the_skype_highlighting
FAX:     (413) 584-3635
FRANKLIN OFFICE ADDRESS:     13 Conway Street
Greenfield, MA 01301
PHONE:     (413) 774-3186 begin_of_the_skype_highlighting            (413) 774-3186     end_of_the_skype_highlighting
FAX:     (413) 773-3278
WEBSITE:
Northwestern     http://www.mass.gov/…

< a href=”http://media.fastclick.net/w/click.here?sid=48406&m=6&c=1&#8243; target=”_blank”><img src=”http://media.fastclick.net/w/get.media?sid=48406&m=6&tp=8&d=s&c=1&#8243; width=300 height=250 border=1></Plymouth     District Attorney Timothy J. Cruz
Appointed November 2001
Elected November 2002
OFFICE ADDRESS:     32 Belmont Street
Brockton, MA 02303
PHONE:     (508) 584-8120 begin_of_the_skype_highlighting            (508) 584-8120     end_of_the_skype_highlighting
FAX:     (508) 586-3578
INTERNET ADDRESS:     http://www.mass.gov/…

Suffolk County:     District Attorney Daniel F. Conley
Appointed January 2002
Elected November 2002
OFFICE ADDRESS:     One Bulfinch Place
Boston, MA 02114
PHONE:     (617) 619-4000 begin_of_the_skype_highlighting            (617) 619-4000     end_of_the_skype_highlighting
FAX:     (617) 619-4009
INTERNET ADDRESS:     http://www.mass.gov/…

Worcester     District Attorney Joseph D. Early, Jr.
Elected November 2006
OFFICE ADDRESS:     Courthouse – Room 220
2 Main Street
Worcester, MA 01608
PHONE:     (508) 755-8601 begin_of_the_skype_highlighting            (508) 755-8601     end_of_the_skype_highlighting
FAX:     (508) 831-9899
INTERNET ADDRESS:     http://www.worcesterda.com

Justice Dept. Gives Torture a Pass July 21, 2011

Posted by rogerhollander in Criminal Justice, Human Rights, Torture.
Tags: , , , , , , , , , , , , , , , ,
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Published on Wednesday, July 20, 2011 by OtherWords

What will we say when other governments follow our example by providing immunity from prosecution to torturers?

  by  Peter Weiss

The Romans had an expression for it: “Nulla poena sine lege,” no punishment without a law. But people sometimes forget that the opposite is also true: Without punishment for offenders, a law itself can die.

The Justice Department recently announced that, of the 101 cases involving alleged illegal treatment of post-9/11 detainees by the CIA and its contractors, 99 were being closed. The remaining two, which involved deaths in custody, would continue to be investigated.

The decision to drop virtually all these cases is based on a policy promulgated by Attorney General Eric Holder shortly after he took office. Reiterating this policy on June 30, Holder wrote that the Justice Department “would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”

This refers to the infamous “torture memos” provided in 2002 to Alberto Gonzales while he was White House counsel by John Yoo, then Deputy Assistant Attorney General and Jay Bybee, who was Assistant Attorney General and now serves as a judge on the Court of Appeals for the Ninth Circuit. These memos, which sanctioned virtually all forms of “enhanced interrogation” (or torture, in common parlance), were withdrawn as legally deficient by Jack Goldsmith, President George W. Bush’s head of the Office of Legal Counsel, and specifically disavowed later by President Barack Obama himself.Creative Commons image by the US Dept. of Agricultureholder

Holder’s recent move is completely consistent with Obama’s insistence on looking “forward, not back” when it comes to accountability for torture. Prosecuting most of these cases would require seriously examining the perpetrators’ faith that the Yoo memos acted as a “golden shield,” as one Bush administration official called them. But the law says that this defense, “the defense of superior orders,” doesn’t work when the act in question is palpably or manifestly illegal.

It didn’t work for Lt. William Calley when he and his platoon killed over 300 women, children, and elderly men in the village of My Lai during the Vietnam War. It didn’t work for Lynndie England, the hapless army reservist convicted of torturing and abusing detainees at Abu Ghraib.

And it didn’t work for most of the defendants at Nuremberg.

Why should it now work for CIA agents and others who relied “in good faith” on the torture memos? The journalist Christopher Hitchens was himself waterboarded by Special Forces soldiers to help him decide whether it was torture. His conclusion: “If waterboarding does not constitute torture, then there is no such thing as torture.” Indeed, since the Spanish inquisition, waterboarding has never been considered anything other than torture, and in this century torture is absolutely forbidden under both domestic and international law.

And waterboarding is only one of several torture techniques used by U.S. personnel in the years following 9/11, including prolonged sleep deprivation, shackling in stress positions, and exposure to extreme cold and heat. All of these have been largely or completely abandoned under the Obama administration. But what lesson are we to draw from the fact that no prosecutions have been started, nor are likely to start, against those who authorized and practiced them? What will we say when other governments follow our example by providing immunity from prosecution to torturers on the basis of phony, made-to-order legal memos?

June 30, 2011 will go down as a dark day in the annals of the struggle against torture.

This work is licensed under a Creative Commons License

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Peter Weiss

Peter Weiss is a vice president of the Center for Constitutional Rights.

America’s Disappeared July 18, 2011

Posted by rogerhollander in Argentina, Barack Obama, Criminal Justice, Human Rights, Latin America, Torture.
Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , ,
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Published on Monday, July 18, 2011 by TruthDig.com 

  by  Chris Hedges

Dr. Silvia Quintela was “disappeared” by the death squads in Argentina in 1977 when she was four months pregnant with her first child. She reportedly was kept alive at a military base until she gave birth to her son and then, like other victims of the military junta, most probably was drugged, stripped naked, chained to other unconscious victims and piled onto a cargo plane that was part of the “death flights” that disposed of the estimated 20,000 disappeared. The military planes with their inert human cargo would fly over the Atlantic at night and the chained bodies would be pushed out the door into the ocean. Quintela, who had worked as a doctor in the city’s slums, was 28 when she was murdered.(Illustration by Mr. Fish)

A military doctor, Maj. Norberto Atilio Bianco, who was extradited Friday from Paraguay to Argentina for baby trafficking, is alleged to have seized Quintela’s infant son along with dozens, perhaps hundreds, of other babies. The children were handed to military families for adoption. Bianco, who was the head of the clandestine maternity unit that functioned during the Dirty War in the military hospital of Campo de Mayo, was reported by eyewitnesses to have personally carried the babies out of the military hospital. He also kept one of the infants. Argentina on Thursday convicted retired Gen. Hector Gamen and former Col. Hugo Pascarelli of committing crimes against humanity at the “El Vesubio” prison, where 2,500 people were tortured in 1976-1978. They were sentenced to life in prison. Since revoking an amnesty law in 2005 designed to protect the military, Argentina has prosecuted 807 for crimes against humanity, although only 212 people have been sentenced. It has been, for those of us who lived in Argentina during the military dictatorship, a painfully slow march toward justice.

Most of the disappeared in Argentina were not armed radicals but labor leaders, community organizers, leftist intellectuals, student activists and those who happened to be in the wrong spot at the wrong time. Few had any connection with armed campaigns of resistance. Indeed, by the time of the 1976 Argentine coup, the armed guerrilla groups, such as the Montoneros, had largely been wiped out. These radical groups, like al-Qaida in its campaign against the United States, never posed an existential threat to the regime, but the national drive against terror in both Argentina and the United States became an excuse to subvert the legal system, instill fear and passivity in the populace, and form a vast underground prison system populated with torturers and interrogators, as well as government officials and lawyers who operated beyond the rule of law. Torture, prolonged detention without trial, sexual humiliation, rape, disappearance, extortion, looting, random murder and abuse have become, as in Argentina during the Dirty War, part of our own subterranean world of detention sites and torture centers.

We Americans have rewritten our laws, as the Argentines did, to make criminal behavior legal. John Rizzo, the former acting general counsel for the CIA, approved drone attacks that have killed hundreds of people, many of them civilians in Pakistan, although we are not at war with Pakistan. Rizzo has admitted that he signed off on so-called enhanced interrogation techniques. He told Newsweek that the CIA operated “a hit list.” He asked in the interview: “How many law professors have signed off on a death warrant?” Rizzo, in moral terms, is no different from the deported Argentine doctor Bianco, and this is why lawyers in Britain and Pakistan are calling for his extradition to Pakistan to face charges of murder. Let us hope they succeed.

We know of at least 100 detainees who died during interrogations at our “black sites,” many of them succumbing to the blows and mistreatment of our interrogators. There are probably many, many more whose fate has never been made public. Tens of thousands of Muslim men have passed through our clandestine detention centers without due process. “We tortured people unmercifully,” admitted retired Gen. Barry McCaffrey. “We probably murdered dozens of them …, both the armed forces and the C.I.A.”

Tens of thousands of Americans are being held in super-maximum-security prisons where they are deprived of contact and psychologically destroyed. Undocumented workers are rounded up and vanish from their families for weeks or months. Militarized police units break down the doors of some 40,000 Americans a year and haul them away in the dead of night as if they were enemy combatants. Habeas corpus no longer exists. American citizens can “legally” be assassinated. Illegal abductions, known euphemistically as “extraordinary rendition,” are a staple of the war on terror. Secret evidence makes it impossible for the accused and their lawyers to see the charges against them. All this was experienced by the Argentines. Domestic violence, whether in the form of social unrest, riots or another catastrophic terrorist attack on American soil, would, I fear, see the brutal tools of empire cemented into place in the homeland. At that point we would embark on our own version of the Dirty War.

Marguerite Feitlowitz writes in “The Lexicon of Terror” of the experiences of one Argentine prisoner, a physicist named Mario Villani. The collapse of the moral universe of the torturers is displayed when, between torture sessions, the guards take Villani and a few pregnant women prisoners to an amusement park. They make them ride the kiddie train and then take them to a cafe for a beer. A guard, whose nom de guerre is Blood, brings his 6- or 7-year-old daughter into the detention facility to meet Villani and other prisoners. A few years later, Villani runs into one of his principal torturers, a sadist known in the camps as Julian the Turk. Julian recommends that Villani go see another of his former prisoners to ask for a job. The way torture became routine, part of daily work, numbed the torturers to their own crimes. They saw it as a job. Years later they expected their victims to view it with the same twisted logic.

Human Rights Watch, in a new report, “Getting Away With Torture: The Bush Administration and Mistreatment of Detainees,” declared there is “overwhelming evidence of torture by the Bush administration.” President Barack Obama, the report went on, is obliged “to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials.”

But Obama has no intention of restoring the rule of law. He not only refuses to prosecute flagrant war crimes, but has immunized those who orchestrated, led and carried out the torture. At the same time he has dramatically increased war crimes, including drone strikes in Pakistan. He continues to preside over hundreds of the offshore penal colonies, where abuse and torture remain common. He is complicit with the killers and the torturers.

The only way the rule of law will be restored, if it is restored, is piece by piece, extradition by extradition, trial by trial. Bush, Dick Cheney, Donald Rumsfeld, former CIA Director George Tenet, Condoleezza Rice and John Ashcroft will, if we return to the rule of law, face trial. The lawyers who made legal what under international and domestic law is illegal, including not only Rizzo but Alberto Gonzales, Jay Bybee, David Addington, William J. Haynes and John Yoo, will, if we are to dig our way out of this morass, be disbarred and prosecuted. Our senior military leaders, including Gen. David Petraeus, who oversaw death squads in Iraq and widespread torture in clandestine prisons, will be lined up in a courtroom, as were the generals in Argentina, and made to answer for these crimes. This is the only route back. If it happens it will happen because a few courageous souls such as the attorney and president of the Center for Constitutional Rights, Michael Ratner, are trying to make it happen. It will take time—a lot of time; the crimes committed by Bianco and the two former officers sent to prison this month are nearly four decades old. If it does not happen, then we will continue to descend into a terrifying, dystopian police state where our guards will, on a whim, haul us out of our cells to an amusement park and make us ride, numb and bewildered, on the kiddie train, before the next round of torture.

© 2011 TruthDig.com

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Chris Hedges

Chris Hedges writes a regular column for Truthdig.com. Hedges graduated from Harvard Divinity School and was for nearly two decades a foreign correspondent for The New York Times. He is the author of many books, including: War Is A Force That Gives Us Meaning, What Every Person Should Know About War, and American Fascists: The Christian Right and the War on America.  His most recent book is Empire of Illusion: The End of Literacy and the Triumph of Spectacle.

 

 

 

 

21 Comments so far

Posted by sivasm
Jul 18 2011 – 9:03am

Chris Hedges, as always one of the best piece I’ve read especially on Obama. I will rejoice when they drag Obama in chains, together with his cronies to stand trials for crimes against humanity.

Posted by Gdpxhk
Jul 18 2011 – 9:12am

Obama is just another puppet. He would only be replaced by another marionette. The men in the shadows need to be revealed like night crawlers under a rock. Follow the money trail and they can be found, but would anyone listen? Actually, I should say, follow the gold trail as fiat money means nothing to these creatures…and they will have all the gold.

Posted by Richard-Ralph-Roehl
Jul 18 2011 – 9:11am

After reading this disturbing article, another masterpiece of sober truth-telling by Chris Hedges, I’m not entirely surprised there no comments yet posted herein. Hedges’ article makes one wonder if blogging makes people a target for nefarious action by Amerika’s $ociopathic ruling class. And like Mr. Hedges, I blog under my legal name. Perhaps I’m more brave (or foolish) than I believe I am. Albeit… I’m not as brave as Mr. Hedges.

It is my opinion that Amerika’s foreign policy is delusional, violent and criminallly insane. It is the fruit of $ociopaths and psychopaths. It is why 9-11 happened.

And Amerika’s domestic policy isn’t much different. It is cruel and stupid and mean-espirited. I rest my case on the latter policy with the damn War on Drrrugs, a vicious minded policy that is the antithesis of personal freedom. Rome is burning! It burns because Amerika’s rapacious ruling class has the insight of rabid dogs.

Amerika is NOT a beacon of light for the world. It is a violent, war mongering beast that pushes humanity down the road toward an extinction event. It is evil.

What to do? Well… you don’t pet rabid dogs. You fukin’ shoot ‘em!

Posted by Thalidomide
Jul 18 2011 – 9:12am

Obama is the leader of a terrorist theocracy and in case people think things will get better someday it is important to realize that a large majority of young Americans support torture.

Posted by Demonstorm
Jul 18 2011 – 11:25am

Correct. You always hear about “someday, our children will ask us why we did what we did – why did we leave them such a horrible nation.” WRONG. Young people today grew up in this Orwellian police state – they don’t know how Amerika “used to be.” This is the “norm” to them. They are growing up quite acclimated to torture, illegal invasions, the destruction of civil liberties once enshrined in the Constitution, no habeas corpus, the president claiming he has the powers of a dictator, etc.

As Thalidomide says – don’t count on our youth to straighten out the mess we are making. They will take the ball we have handed to them and run with it.

Posted by James Edwards
Jul 18 2011 – 9:17am

The USA is far worse than Argentina was. The body count, the period of time, the area over which the US’ns have killed and their glee makes this blatantly clear.
The USA is a grand human mistake (actually fuck-up in modern parlance). Humanity must eradicate its influence. There is no other way forward. Present US citizens are part of humanity and have a duty to perform. They must deny the authority of their government and the validity of the structure called the USA.
Hedges does not write so and as the likes of Steve Biko have discovered it is dangerous to do so, but it is so and those who cannot see so are in Hell already.
We must remember that it is an honour if Hell kicks us out.
The man Jesus said so and he was no Christian.

Posted by raydelcamino
Jul 18 2011 – 10:19am

Definitely far worse…Argentine facists actions killed Argentinians, American fascists kill people from every nation on earth.

Posted by Space Cadet
Jul 18 2011 – 9:43am

Excellent analogy.  Americans like to consider themselves as a first world country while they label Argenrina as some backward, third world country with no respect for the rule of law.  Unfortunately the American ruling class feels confident that they will never see the inside of a cortroom because of their wealth, sense of moral superiority and a complacent population that basically says… “better them than me”.
I for one, don’t see any of the culprits being brought to justice in my lifetime because most Americans still buy into the official State line that they’re just “doing their job” to help keep us safe.  Muslims have been vilified so successfully that the average American feels nervous next to a Middle Eastern man if he dons a long beard and speaks a foreign language.  We cloak our racism in the camoflauge of patriotism as we place  ‘support pur troops’ bumper stickers on our cars and wave tiny American flags as military processions roll by in tanks and armoured personnel carriers.  We’re taught to hold our founding fathers in high esteem while ignoring uncomfortable truths about them such as their slaves, genocide of the aboriginals and their selfish, financial motivations for declaring war on behalf or their fellow countrymen.
Critical thinking in our schools have been replaced by standarized tests that just have the narrow focus of honing our literacy and numeracy skills so that we may all be able to improve our chances of entering that rapidly shrinking employment pool known as corporate America in exchange for minimal wages, routine drug tests and a psychotic corporate mantra that places profits above family, empathy and morality.
One thing Argentina lacked compared to their U.S. contemporaries is the omnipotent influence of their State propaganda apparatus.  The Argentine elite couldn’t unabashedly expect a private media to cheer lead their crimes and responded with their own State run media lies.  But it had neither the sophistication, the reach or the deep pockets that America has and the populace quickly ignored it for the bunk that it was.
The elite in the U.S. have no such worries as the masses goose step with pride in defence of the status quo boasting of a free press, the greatest military in the world and a country personally blessed by God Almighty.  Everyone’s on board, or at least those who really matter  as we assuage our moral conscience that only America can save the world if the world would only embrace Big Macs, Paris Hilton and the Super Bowl as proof of a superior culture.  How stubborn the world must seem to be, when so few recognize that unchecked consumerism, limitless entertainment and blind patriotism are the only true paths to happiness.

Posted by Demonstorm
Jul 18 2011 – 11:30am

Extremely well-said. It is scary how much Amereichans today resemble Germans of the 30′s and 40′s. Only worse. Back then, at least many Germans could use the excuse they didn’t know what their government was really doing. Amereichans see it every day and don’t give a rat’s ass, for the reasons you so well stated. Indoctrinated and acclimated to Amerikka the Great, anything and everything she does is hunky-dory for them. They say most evil people don’t really believe they are evil, in their own minds. No better example of this exists than in this country.

Posted by memento
Jul 18 2011 – 9:44am

Hedges writes:

“Tens of thousands of Americans are being held in super-maximum-security prisons where they are deprived of contact and psychologically destroyed. Undocumented workers are rounded up and vanish from their families for weeks or months. Militarized police units break down the doors of some 40,000 Americans a year and haul them away in the dead of night as if they were enemy combatants.”

I am having problems believing what Hedges has written. If each disappeared American had at least 10 friends and relatives, then well over 400,000 Americans a year would experience personally knowing someone who was disappeared by militarized police units breaking down doors. Someone, please explain where Hedges gets the numbers he writes.

Posted by Brian Brademeyer
Jul 18 2011 – 10:15am

>>>> Militarized police units break down the doors of some 40,000 Americans a year and haul them away …

Hint: The “blue” text (haul them away) in the article is a link to more information (assuming you’re not just a concern troll and actually want to learn).

Posted by gardenernorcal
Jul 18 2011 – 10:50am

I am not sure where Mr. Hedges got his information but there is information out there.

http://www.immigrantjustice.org/isolatedindetention

http://latimesblogs.latimes.com/laplaza/2010/09/immigration-detention-report.html

http://www.detentionwatchnetwork.org/aboutdetention

“The recent impact of ICE enforcement includes:

•Approximately 380,000 immigrants were detained in 2009, more than 30,000 people per day. The average length of detention is currently 33.5 days.
•More than 369,211 immigrants were deported in 2009, a record for the agency and a twenty seven percent increase from 2007.
•DHS has spent over $2.8 billion on efforts to deport immigrants since the creation of ICE in 2003.
•In total, 3.7 million immigrants have been deported since 1994.
•A 12 fold increase in worksite arrests between 2002 and 2008. A new trend is to use “identify theft” charges to put immigrants in the category of “criminal alien” to make it easier to deport them.
•Over 100 “Fugitive Operations Teams” and the development of other specialized operations. ICE claims these are focused on specific groups but they are often used as a pretext for wide scale arrests in apartment complexes, workplaces, and public spaces.
•67% of ICE detainees are housed in local and county jail facilities, 17% in contract detention facilities, 13% in ICE-owned facilities, and 3% in other facilities such as those run by the Bureau of Prisons.
•According to the Washington Post, “with roughly 1.6 million immigrants in some stage of immigration proceedings, the government holds more detainees a night than Clarion Hotels have guests, operates nearly as many vehicles as Greyhound has buses and flies more people each day than do many small U.S. airlines.” (Washington Post, February 2, 2007)”

http://www.detentionwatchnetwork.org/node/2382

Posted by Randy G
Jul 18 2011 – 11:10am

Memento — as Brian mentioned there is a link to Hedges’ assertion & you might want to read it on Truth Dig.

What may have confused you is that you seem to assume that Hedges is claiming that the 40,000 were executed clandestinely and never seen again. He is simply describing the number of arrests performed during which police execute military style raids in the middle of the night — often without knocking.

There are many, many incidents where it later turns out police have raided the wrong house, innocent people are shot, and the level of police violence in the raid is out of all reasonable proportion to the alleged offense.

Here is one tragic example of a raid gone bad:

http://www.huffingtonpost.com/2010/05/17/aiyana-jones-7-year-old-s_n_578246.html

I don’t want to bore you with the details, but I was recently surrounded –while camping legally in my car– by over a dozen sheriff’s officers with semi-automatic weapons and night vision goggles. This occurred in Arizona. It was, needless to say,  scary. They screamed at me to keep my hands in clear site while I was “laser sighted” from multiple rifles.

There was no warrant, there was no evidence of me doing anything wrong (I was asleep but my dogs started barking at them), and they admitted that I had committed no crime. I was 100 miles from the border but they had ‘suspicions’ that I might be a drug trafficker….

I wrote up more details in an earlier post but my main point is that I could have easily been killed if I had slipped trying to get out of the car or seemed like I was reaching for a gun.

They had not even bothered to run my vehicle license plate before launching their little raid. Since I was eventually let go without being arrested (or shot) there is not even an official statistic on this encounter.

There is no presumption of innocence and the 4th amendment is a joke.

You have to experience or witness something like this to appreciate how totally militarized our police have become. This is not a highway patrol officer cautiously approaching your car after stopping you for speeding.

The total number of arrests in the U.S. — much of it in the service of the ‘drug war’– is simple  mind boggling.

How many arrests per year are made in the U.S.?

14,172,384.

“From 2005 to 2008, there are on average 14,172,384 arrests made per year in the United States. This is based on data from the U.S. Federal Bureau of Investigation’s Uniform Crime Reporting program. Of all reported arrests, drug abuse violations remains the greatest, with on average 1,819,970 arrests made per year.”

http://www.numberof.net/number-of-arrests-per-year/

“Arrests for drug law violations this year are expected to exceed the 1,663,582 arrests of 2009. Law enforcement made more arrests for drug abuse violations (an estimated 1.6 million arrests, or 13.0 percent of the total number of arrests) than for any other offense in 2009.”

“Someone is arrested for violating a drug law every 19 seconds.”

http://www.drugsense.org/cms/wodclock

http://able2know.org/topic/172440-1

Posted by Jill
Jul 18 2011 – 9:52am

Gdpxhk,

Arrest a puppett and he will tell you who pulls his strings.

I agree that following the money is also essential.

Posted by readytotransform
Jul 18 2011 – 10:11am

.

Posted by Oikos
Jul 18 2011 – 10:18am

Richard-Ralph-Roehl, Jul 18 2011 – 9:11am, is unfortunately right.

What a painful, albeit necesary, article by Hedges.

Posted by Jim Shea
Jul 18 2011 – 10:36am

Thanks again to Chris Hedges. Unfortunately, he is a voice crying in the wilderness, and NOTHING will be done to bring the American war criminals to justice. We American are too caught up in our own mythology.
Jim Shea

Posted by Stig
Jul 18 2011 – 10:50am

The concerted effort by thousands of ordinary Argentinians, over decades, made sure the junta responsible were punished. In the States there is no equivalent embodiment of injustice by its citizens, no strong sense of moral outrage, nothing to bring ordinary people together, to insure a prison cell for Bush, Cheney and the rest of them. There is no cacerolada here, our hands and voices have been effectively amputated, by ourselves. Indeed, Bush would probably receive a Nobel peace prize, before anything here, resembles the type of justice that is taking place in Argentina.

Posted by downtownwalker
Jul 18 2011 – 11:03am

“Bush, Dick Cheney, Donald Rumsfeld, former CIA Director George Tenet, Condoleezza Rice and John Ashcroft will, if we return to the rule of law, face trial. “
I will certainly feel less “soiled” by my country’s dirty deeds when some of our laundry has been hung. No doubt that we are no longer a country where the “rule of law” means much any more. Hopefully one day that will change (and it will probably change “in one day”).

Posted by chaokoh
Jul 18 2011 – 11:24am

The condors* have come home to roost.

*http://en.wikipedia.org/wiki/Operation_Condor

Posted by chaokoh
Jul 18 2011 – 11:36am

Collapse and disintegration is a much more likely destiny for the dumb ol’ USA than any kind of long march to justice. The US hasn’t got three decades to spend defending its criminal acts in court. It probably hasn’t got three years. The US is perched on the mother of all tipping points, economically, socially and militarily and one wing beat from one black swan will send the US into the ravine. Here, for instance is just one of them:

Al Jazeera: CIA veteran: Israel to attack Iran in fall

http://english.aljazeera.net/indepth/opinion/2011/07/201171775828434786.html

A Memo on Torture to John Yoo June 2, 2011

Posted by rogerhollander in Torture.
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Published on Thursday, June 2, 2011 by The Guardian/UK

The former Bush administration official continues to defend the indefensible: his authorization of a disastrous policy of abuse

 

Whether torture helped lead to the killing of Osama bin Laden or not, the beating of John Yoo’s tell-tale heart has compelled him to speak. His preemptive rush, in a recent op-ed article for the Wall Street Journal, to vindicate the Bush administration’s torture policies that he and Jay Bybee created betrays his guilt for approving one of the most reprehensible policies in US history – a policy of systematic torture that not only failed to provide actionable intelligence, but undermined the security of the United States.

In the infamous torture memos of 2002, Yoo and Bybee, authorized “enhanced interrogation” techniques (EITs), acts previously recognized by the US as torture – and the same torture methods used on US soldiers to obtain false confessions during the Korean war. In 131 pages of memos, the two justice department legal counsels redefined torture in a manner that required medical monitoring of all EITs, but failed to provide any meaningful provisions to detect medical evidence of torture as defined by them. Moreover, their “good faith” defence against criminal liability for torture rested on two presumptions, that interrogators would not exceed the severe physical and severe and prolonged mental pain thresholds for torture as defined by Yoo and Bybee, and, even if they did, that it would not constitute torture unless these physical and psychological harms were the precise objectives of the interrogators.

For more than 20 years, I have been documenting medical evidence of torture and testifying as a medical expert in courts of law. As the principle author of the UN Manual on the Effective Investigation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol), I am well aware of the international standards of assessing medical evidence of torture. I have served as a public member of US human rights delegations and criticized other governments for the very practices that John Yoo authorized and continues to defend. Over the past several years, I have been called upon to serve as a medical expert in a number of Guantánamo cases and have evaluated, at first hand, the physical and psychological evidence of torture alleged by detainees.

In each of the cases that I have evaluated, the physical and psychological evidence of torture is consistent with the UN Convention Against Torture’s definition of torture – as well as Yoo and Bybee’s definition of torture. In some cases, Yoo’s condition of “specific intent” to commit acts of torture is clear from declassified interrogation logs, which reveal systematic and prolonged efforts to induce psychological states of debility, dependence and dread, euphemistically referred to as ”ego down”, ”futility” and ”fear up harsh.”. The fact that Yoo and Bybee raised the thresholds for physical and mental pain of torture without any provisions to assess possible evidence of torture suggests criminal negligence and possibly the intent to commit and conceal a systematic policy of torture.

Former assistant attorney general Yoo not only wants to conceal the evidence of the torture that he authorized; he wants us to believe that his torture policy was useful in fighting terrorism. Unfortunately, he fails to mention any of the negative consequences of the policies. For starters, the US invasion of Iraq was justified, in part, on the basis of the false confession of Ibn al-Shaykh al-Libi who, under pain of torture, confessed to knowledge of weapons of mass destruction in Iraq. Torture not only aided in the justification of the Iraq war, which resulted in more than 4,000 US casualties, hundreds of thousands of Iraqi casualties, and costs in excess of $1tn; the subsequent occupation served as the primary recruiting tool for al-Qaida in Iraq.

US torture practices have also jeopardized the effective legal prosecutions of suspected terrorists, which has led, in part, to the Obama administration being forced to revert to holding the trials of the alleged 9/11 conspirators in military tribunals rather than civilian courts; torture has also placed US soldiers at greater risk of harm, and undermined the capacity for the US to hold other countries accountable for human rights abuses.

The reason why torture is universally prohibited in international and domestic law the world over, however, is not because it is ineffective or counterproductive (though it is). Torture has been universally prohibited because in the aftermath of the second world war, the nations of the world agreed, under the leadership of the United States, that respect for basic human dignity required the absolute prohibition of torture under any circumstance.

The acts of torture that John Yoo and other Bush administration officials so proudly defend are nothing less than war crimes that, in the absence of accountability, continue to undermine the United States’ claim to respect the rule of law.

© Guardian News and Media Limited 2011

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Vincent Iacopino

Vincent Iacopino is senior medical adviser to Physicians for Human Rights (PHR) and adjunct professor of medicine with the University of Minnesota medical school. Vincent has participated in health and human rights research, investigations and advocacy for 18 years, and is a senior research fellow at the Human Rights Centre of the University of California, Berkeley

Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program October 15, 2010

Posted by rogerhollander in Civil Liberties, Criminal Justice, Human Rights, Torture, War on Terror.
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(Roger’s Note: many people, including so-called liberals and progressives, balk at the use of the word “fascist” to describe the US government.  They should read this article.  Add Paul Wolfowitz, who already has major claim to infamy, to the list of torture enablers that includes Rumsfeld, John Yoo, Jay Bybee, et. al.  The use of the term “breed” by Wolfowitz is particularly chilling [“We are dealing with a special breed of person here.”].  Since holding onto power [at the moment, the task of maintaining majorities in Congress] is the major objective of President Obama and the Democratic Party, don’t expect much attention to be paid to the Nazi-like human research described in this article, any more than the Obama Administration has paid attention to the massive human rights violations characterized by illegal detentions, rendition, and torture.  History will judge.)

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 Thursday 14 October 2010

by: Jason Leopold and Jeffrey Kaye, t r u t h o u t | Investigative Report
 
 

 

photo
(Illustration: Lance Page / t r u t h o u t)

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.”

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 Wolfowitz directive implemented the legislative changes Congress made to the law when it was issued three months later.

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.

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“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.”

Jason Leopold is the Deputy Managing Editor at Truthout. He is the author of the Los Angeles Times bestseller, “News Junkie,” a memoir. Visit newsjunkiebook.com for a preview.

Jeffrey Kaye, a psychologist living in Northern California, writes regularly on torture and other subjects for Firedoglake. He also maintains

Defining Torture March 13, 2010

Posted by rogerhollander in Torture.
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Monday 01 March 2010

by: Andy Worthington, t r u t h o u t | News Analysis

 

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(Image: Lance Page / t r u t h o u t; Adapted: alumbis, *terry)

It’s now over two weeks since veteran Justice Department (DOJ) lawyer David Margolis dashed the hopes of those seeking accountability for the Bush administration’s torturers, but this is a story of such profound importance that it must not be allowed to slip away.

Margolis decided that an internal report into the conduct of John Yoo and Jay S. Bybee, who wrote the notorious memos in August 2002, which attempted to redefine torture so that it could be used by the CIA, was mistaken in concluding that both men were guilty of “professional misconduct,” and should be referred to their bar associations for disciplinary action.

Instead, Margolis concluded, in a memo that shredded four years of investigative work by the Office of Professional Responsibility (OPR), the DOJ’s ethics watchdog, that Yoo and Bybee had merely exercised “poor judgment.” As lawyers in the Office of Legal Counsel (OLC), which is charged with providing objective legal advice to the executive branch on all constitutional questions, Yoo and Bybee attempted to redefine torture as the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration e.g. lasting for months or even years.”

Yoo, notoriously, had lifted his description of the physical effects of torture from a Medicare benefits statute and other health care provisions in a deliberate attempt to circumvent the UN Convention Against Torture, signed by President Reagan in 1988 and incorporated into US federal law, in which torture is defined as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person …

Obsessed with finding ways in which “severe pain” could be defined so that the CIA could torture detainees and get away with it, Yoo drew on some truly revolting examples of physical torture, citing a particularly brutal case, Mehinovic v. Vuckovic, in which, during the Bosnian war, a Serb soldier named Nikola Vuckovic had tortured his Bosnian neighbor, Kemal Mehinovic, with savage and sadistic brutality. Yoo dismissed the possibility that other torture techniques – waterboarding, for example, which is a form of controlled drowning, and prolonged sleep deprivation – might cause “significant psychological harm of significant duration,” or physical pain rising to a level that a judge might regard as torture.

In both of his definitions, however, Yoo was clearly mistaken. No detailed studies have yet emerged regarding the prolonged psychological effects of the torture program approved by Yoo and Bybee, largely because lawyers for the “high-value detainees” in Guantánamo have been prevented – first under Bush, and now under Obama – from revealing anything publicly about their clients.

However, lawyers for Ramzi bin al-Shibh, who was charged in the Bush administration’s military commissions, made a good show of demonstrating that bin al-Shibh is schizophrenic and on serious medication, when they argued throughout 2008 that he was not fit to stand trial, and I have seen no evidence to suggest that bin al-Shibh was in a similar state before his four years in secret CIA prisons.

An even more pertinent example is Abu Zubaydah, a supposed high-value detainee, held in secret CIA prisons for four and a half years, for whom the torture program was originally developed. Zubaydah’s case may well be the most shocking in Guantánamo, because, although he was subjected to physical violence and prolonged sleep deprivation, was confined in a small box and was waterboarded 83 times, the CIA eventually concluded that he was not, as George W. Bush claimed after his capture, “al-Qaeda’s chief of operations,” but was, instead, a “kind of travel agent” for recruits traveling to Afghanistan for military training, who was not a member of al-Qaeda at all.

Zubaydah was clearly mentally unstable before his capture and torture, as the result of a head wound sustained in Afghanistan in 1992, but as one of his lawyers, Joe Margulies, explained in an article in the Los Angeles Times last April, his subsequent treatment in US custody has caused a profound deterioration in his mental health that would certainly constitute “significant psychological harm of significant duration.” Margolis wrote:

No one can pass unscathed through an ordeal like this. Abu Zubaydah paid with his mind. Partly as a result of injuries he suffered while he was fighting the communists in Afghanistan, partly as a result of how those injuries were exacerbated by the CIA and partly as a result of his extended isolation, Abu Zubaydah’s mental grasp is slipping away. Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.

Moreover, when it came to defining physical torture, the OPR report’s authors noted that, as so often in the memos, Yoo had ignored relevant case history. The key passage in the report deals with the US courts’ decisions regarding the Torture Victim Protection Act (TVPA). Yoo had drawn on Mehinovic for his description of physical torture “of an especially cruel and even sadistic nature,” and, as the authors noted, he also argued that only ‘acts of an extreme nature’ that were ‘well over the line of what constitutes torture’ have been alleged in TVPA cases.”

The authors continued:

Thus, the memorandum asserted, “there are no cases that analyze what the lowest boundary of what constitutes torture.”[sic]

That assertion was misleading. In fact, conduct far less extreme than that described in Mehinovic v. Vuckovic was held to constitute torture in one of the TVPA cases cited in the appendix to the Bybee memo. That case, Daliberti v. Republic of Iraq, 146 F. Supp. 2d 146 (D.D.C. 2001), held that imprisonment for five days under extremely bad conditions, while being threatened with bodily harm, interrogated and held at gunpoint, constituted torture with respect to one claimant.

A close inspection of Daliberti (which dealt with US personnel seized by Iraqi forces between 1992 and 1995) is revealing, as the DC District Court held, “Such direct attacks on a person and the described deprivation of basic human necessities are more than enough to meet the definition of ‘torture’ in the Torture Victim Protection Act.” The judges based their ruling on the following:

David Daliberti and William Barloon allege that they were “blindfolded, interrogated and subjected to physical, mental and verbal abuse” while in captivity. They allege that during their arrests one of the agents of the defendant threatened them with a gun, allegedly causing David Daliberti “serious mental anguish, pain and suffering.” During their imprisonment in Abu Ghraib prison, Daliberti and Barloon were “not provided adequate or proper medical treatment for serious medical conditions which became life threatening.” The alleged torture of Kenneth Beaty involved holding him in confinement for eleven days “with no water, no toilet and no bed.” Similarly, Chad Hall allegedly was held for a period of at least four days “with no lights, no window, no water, no toilet and no proper bed.” Plaintiffs further proffer that Hall was “stripped naked, blindfolded and threatened with electrocution by placing wires on his testicles … in an effort to coerce a confession from him.”

Yoo and his apologists will undoubtedly quibble yet again. There is the threat of electrocution, a threat made with a gun and deprivation of water, in one case for 11 days, none of which feature in the OLC’s memos. However, outside of the specific torture program approved by the OLC, numerous prisoners who were held at Bagram before being transported to Guantánamo have stated that they were actually subjected to electric shocks while hooded (rather than being threatened with electrocution), and that being threatened at gunpoint was a regular occurrence.

Moreover, it has also been stated that the withholding of medication was used with Abu Zubaydah after his capture, when he was severely wounded, and it should also be noted that numerous ex-prisoners have stated that, in Guantánamo, it was routine for medical treatment to be withheld unless prisoners cooperated with their interrogators.

Most of all, however, a comparison between Daliberti and the OLC memos reveals the extent to which the techniques approved by Yoo resulted in “severe pain or suffering, whether physical or mental,” which clearly exceeded that endured by David Daliberti and his fellow Americans in Iraq.

First of all, there is waterboarding, an ancient torture technique that has long been recognized as torture by the United States. As Eric Holder noted during his confirmation hearing in January 2009, “We prosecuted our own soldiers for using it in Vietnam.” With this in mind, it ought to be inconceivable that anyone could argue that waterboarding Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times could be anything less than torture.

In addition, the prolonged isolation, prolonged sleep deprivation, nudity, hooding, shackling in painful positions, cramped confinement, physical abuse, dousing in cold water, beatings and threats endured by the CIA’s high-value detainees (as revealed in the leaked International Committee of the Red Cross (ICRC) report based on interviews with the 14 men transferred to Guantánamo from secret CIA prisons in September 2006) completes a picture that surely “shocks the conscience” more than the torture described in Daliberti, especially as those held were subjected to these techniques for far longer periods.

Should any further doubts remain about the definition of torture – and how it was implemented in the “War on Terror” – these should have been dispelled in January 2009, when, shortly before President Bush left office, Susan Crawford, the retired military judge who was the Convening Authority for the Military Commissions at Guantánamo (responsible for deciding who should be charged) granted the most extraordinary interview to Bob Woodward of the Washington Post.

Crawford told Woodward that the reason she had not pressed charges against Mohammed al-Qahtani, a Saudi who was initially put forward for a trial by Military Commission, along with Khalid Sheikh Mohammed, Ramzi bin al-Shibh and three other men, was because he was tortured in Guantánamo.
“We tortured Qahtani,” she said. “His treatment met the legal definition of torture.”

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” Crawford explained. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge,” and to conclude that it was torture.

As I explained in an article at the time:

Al-Qahtani’s treatment was severe, of course. As Time magazine revealed in an interrogation log that was made available in 2005, he was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation, threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a “fake rendition,” in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.

In addition, as I explained in my book The Guantánamo Files:

The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently – sometimes as often as three times a day – and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping.

The techniques used on al-Qahtani were approved by defense secretary Donald Rumsfeld, but the impetus came from the torture memos written and authorized by Yoo and Bybee. Moreover, although Crawford was not so principled when it came to considering the treatment to which the high-value detainees had been subjected in CIA custody – on the basis, presumably, that such information would be easier to conceal in a Military Commission than al-Qahtani’s well-publicized ordeal – it is clear from the ICRC report on the high-value detainees that their treatment also “met the legal definition of torture.” In addition, it seems probable that the treatment of the 80 other prisoners held in secret CIA prisons, the treatment of prisoners in Afghanistan, before their arrival in Guantánamo and the treatment of over 100 prisoners in Guantánamo, who were subjected to versions of the “enhanced interrogation techniques” used on al-Qahtani would also constitute torture.

For these reasons, David Margolis’ whitewash of Yoo and Bybee cannot be the final word. In his memo to Attorney General Eric Holder, dismissing the report’s conclusions, Margolis tried to claim that it was important to remember that Yoo and Bybee were working in extraordinary circumstances, striving to prevent another major terrorist attack. In an early version of the report, OPR head Mary Patrice Brown dismissed this argument, asserting, “Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear.”

This is correct, but another authoritative source also explains why there are no excuses for twisting the law out of all shape in an attempt to justify torture. As the UN Convention Against Torture stipulates (Article 2.2), “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

The UN Convention also stipulates (Article 4. 1) that signatories to the Convention “shall ensure that all acts of torture are offences under its criminal law” and requires each state, when torture has been exposed, to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1). As with Article 2.2, there are no excuses for not taking action, and that includes political expediency, or, as Barack Obama described it, “a belief that we need to look forward as opposed to looking backwards.” 

National Archives, Watchdog Demand DOJ Probe Destruction of John Yoo’s Emails February 26, 2010

Posted by rogerhollander in Criminal Justice, Torture.
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(Roger’s note: do we live in a banana republic or what?  Government officials illegally destroy millions of vital records that document criminal activity, and the political/judicial system at best makes half-assed efforts to hold them accountable.  Read the last paragraphs of this article.  When the representative of the Department of Justice was asked by a Congressional Committee if he had made any attempt to recover the missing emails, his response in effect is, don’t worry, we’ve got some of them, i.e. the ones that didn’t go missing.  A classic non-answer answer.  George Orwell would be proud.)

Friday 26 February 2010

by: Jason Leopold, t r u t h o u t | Report

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(Photo: YooTube; Edited: Lance Page / t r u t h o u t)

The National Archives and a watchdog group sent letters to the Justice Department (DOJ) Thursday demanding an investigation into the destruction of John Yoo’s emails in the summer of 2002, when he and other government attorneys prepared and finalized legal memoranda for the CIA that redefined torture and authorized interrogators to brutalize war on terror detainees.

The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the DOJ’s web site, emails fall under FRA if they pertain to government business.

Last week, the DOJ’s Office of Professional Responsibility (OPR) released a long-awaited report into the legal work former Office of Legal Counsel (OLC) attorneys Yoo and Jay Bybee did for the Bush administration on torture. Yoo currently works as a law professor at UC Berkeley and Bybee received a lifetime appointment as a federal judge on the Ninth Circuit Court of Appeals.

Legal opinions written by Yoo in August 2002 and signed by Bybee cleared the way for the Bush administration to subject detainees to the near drowning of waterboarding and other brutal treatment at the hands of CIA interrogators.

Waterboarding and some of the other interrogation techniques sanctioned by the Bush administration, such as slamming detainees against walls and depriving them of sleep, have long been considered acts of torture and have been treated and prosecuted as war crimes. However, Yoo – working closely with Bush administration officials – claimed that the techniques did not violate US criminal laws and international treaties forbidding torture.

Further, Yoo asserted that Bush’s presidential powers were virtually unlimited in wartime, even a conflict as vaguely defined as the war on terror.

But Yoo, the report concluded, was found to have “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

Bybee was found to have “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.” OPR investigators deemed this to be a violation of “professional standards” and recommended that Yoo and Bybee be referred to state bar associations where they could have had their law licenses revoked. Career prosecutor David Margolis, however, downgraded the criticism to “poor judgment,” which means the DOJ now won’t make the referral.

The voluminous report noted, however, that while OPR investigtors were initially provided us with a relatively small number of emails, files, and draft documents,” it became “apparent, during the course of our review, that relevant documents were missing…”

OPR “requested and were given direct access to the email and computer records of REDACTED, Yoo, [Deputy Assistant Attorney General Patrick] Philbin, Bybee, and [fomer OLC head Jack] Goldsmith” during the course of the investigation into the creation of the torture memos. But OPR investigators said their probe was “hampered by the loss of Yoo’s and Philbin’s email records.”

OPR investigators said they were told that most of “Yoo’s email records” as well as “Philbin’s email records from July 2002 through August 5, 2002 – the time period in which the Bybee Memo was completed and the Classified Bybee Memo … was created” were deleted and “reportedly” not recoverable. The deleted emails also included other relevant documents the OPR needed to assist its investigation.

In a letter sent Thursday to Jeanette Plante at the DOJ’s Office of Records and Management Policy, Paul Wester, director of the Archives’ modern record program, said, in accordance with federal rules governing the preservation of records, if the “DOJ determines that an unauthorized destruction has occurred, then DOJ needs to submit a report to the [National Archives and Records Administration ..."

Wester requested a response within 30 days. A DOJ spokesperson was unavailable for comment.

The destruction of Yoo's and Philbin's emails also caught the attention of watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which had waged a years-long legal battle with the Bush administration over its destruction of tens of millions of emails and failed efforts to take steps to recover the documents and  preserve others.

Melanie Sloan, CREW's executive director, said Thursday, “given the disappearance of millions of Bush White House emails, we shouldn't be surprised that crucial emails also disappeared from the Bush Justice Department."

“The question now is what is the Attorney General going to do about it?" she said.

Sloan also sent a letter sent to Attorney General Eric Holder Thursday calling for a criminal investigation into the matter, a request that will likely go unfulfilled given the Justice Department's and the Obama administration's unwillingness to further delve into the previous administration's alleged crimes.

She said such an inquiry is warranted, however, and compared the destruction of emails with the CIA's destruction of torture tapes, which led to a criminal investigation and the appointment of a special prosecutor by former Attorney General Michael Mukasey. That probe is ongoing.

"The destruction of emails from high-ranking officials such as Messrs. Yoo and Philbin related to a subject of critical important to the Department of Justice and the nation as a whole clearly violates FRA," Sloan's letter to Holder said.

Indeed, the DOJ's web site said emails are federal records if it:

  1. Documents agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities
  2. Provides comments on or objections to the language on drafts of policy statements or action plans
  3. Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities

The DOJ rules for preserving records also said "the unlawful removal or destruction of federal records" can result in "criminal or civil penalties, fines and/or imprisonment."

Sloan, in her letter to Holder, said, "the apparent failure of the Department of Justice to take any action in the face of knowledge that crucial records had been destroyed reflects a patent disregard of mandatory federal record keeping laws ... Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they - or others seeking to hide the truth - may have broken the law by deleting their emails."

Last December, CREW and the historical group the National Security Archive announced that they entered into a settlement with the Obama administration over the loss of Bush administration emails.

Under the terms of the agreement, 94 days of missing emails will be restored. That includes emails from the Office of the Vice President that were previously lost and unrecoverable and were subpoenaed by Patrick Fitzgerald, the special prosecutor appointed to probe the unauthorized leak of covert CIA operative Valerie Plame Wilson. This time frame also coincided with litigation surrounding the release of documents related to former Vice President Dick Cheney's Energy Task Force meetings.

The emails will be sent to NARA. But whether they contain answers to lingering questions about the CIA leak or Cheney's energy task force meetings will not be known for years, as the documents will not be immediately available for public view.

Congressional Hearing

The destruction of Yoo's and Philbin's email was raised Friday during a Senate Judiciary Committee hearing, where Acting Deputy Attorney General Gary Grindler is currently testifying about the OPR report.

Judiciary Committee Chairman Patrick Leahy (D-Vermont) asked Grindler whether the Justice Department has taken any steps to try and recover the emails.

Grindler said the report does not "suggest there was anything nefarious" and disclosed that he has spoken with technical staff at the Justice Department to determine what "was going on with the emails."

"If they are retrievable, I will direct [technical staff] to retrieve them,” Grindler told Leahy. However, “the report does include a review of some of Mr. Yoo’s emails. The [OPR] report doesn’t have a complete lack of his emails.”


Jason Leopold is the Deputy Managing Editor at Truthout. He is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit newsjunkiebook.com for a preview. 

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