Tags: al-Qaeda, Alberto Gonzales, bush administration, cia, detainees, dod, ethical standards, geneva conventions, Guantanamo, human experimentation, human rights, interrogations, jason leopold, jay bybee, jeffrey kaye, john yoo, Mohammed al-Qahtani, nazi atrocities, nuremberg, prisoners of war, psychological warfare, research, roger hollander, rumsfeld, sere, Taliban, torture, torture memos, waterboarding, wolfowitz
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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.)
Thursday 14 October 2010
(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.
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.”
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.
As planning for the highly classified Special Access Program began to take shape, most officials in Congress appear to have averted their eyes, with some even lending a hand.
The ex-DIA officials said the Pentagon briefed top lawmakers on the Senate Defense Appropriations Committee in November and December 2001, including the panel’s chairman Sen. Daniel Inouye (D-Hawaii) and his chief of staff Patrick DeLeon, about experimentation and research involving detainee interrogations that centered on “deception detection.”
To get a Special Access Program like this off the ground, the Pentagon needed DeLeon’s help, given his long-standing ties to the American Psychological Association (APA), where he served as president in 2000, the sources said.
According to former APA official Bryant Welch, DeLeon’s role proved crucial.
“For significant periods of time DeLeon has literally directed APA staff on federal policy matters and has dominated the APA governance on political matters,” Welch wrote. “For over twenty-five years, relationships between the APA and the Department of Defense (DOD) have been strongly encouraged and closely coordinated by DeLeon….
“When the military needed a mental health professional to help implement its interrogation procedures, and the other professions subsequently refused to comply, the military had a friend in Senator Inouye’s office, one that could reap the political dividends of seeds sown by DeLeon over many years.”
John Bray, a spokesman for Inuoye, said in late August he would look into questions posed by Truthout about the Wolfowitz directive and the meetings involving DeLeon and Inuoye. But Bray never responded nor did he return follow-up phone calls and emails. DeLeon did not return messages left with his assistant.
Legal Word Games
Meanwhile, in January 2002, President Bush was receiving memos from then-Justice Department attorneys Jay Bybee and John Yoo as well as from Defense Secretary Rumsfeld and Bush’s White House counsel Alberto Gonzales, advising Bush to deny members of al-Qaeda and the Taliban prisoner-of-war status under the Geneva Conventions.
Also, about a month before the Wolfowitz directive was issued, the Defense Intelligence Agency (DIA) asked Joint Forces Command if they could get a “crash course” on interrogation for the next interrogation team headed out to Guantanamo, according to the Armed Services Committee’s report. That request was sent to Brig. Gen. Thomas Moore and was approved.
Bruce Jessen, the chief psychologist of the SERE program, and Joseph Witsch, a JPRA instructor, led the instructional seminar held in early March 2002.
The seminar included a discussion of al-Qaeda’s presumed methods of resisting interrogation and recommended specific methods interrogators should use to defeat al-Qaeda’s resistance. According to the Armed Services Committee report, the presentation provided instructions on how interrogations should be conducted and on how to manage the “long term exploitation” of detainees.
There was a slide show, focusing on four primary methods of treatment: “isolation and degradation,” “sensory deprivation,” “physiological pressures” and “psychological pressures.”
According to Jessen and Witsch’s instructor’s guide, isolation was the “main building block of the exploitation process,” giving the captor “total control” over the prisoner’s “inputs.” Examples were provided on how to implement “degradation,” by taking away a prisoner’s personal dignity. Methods of sensory deprivation were also discussed as part of the training.
Jessen and Witsch denied that “physical pressures,” which later found their way into the CIA’s “enhanced interrogation” program, were taught at the March meeting.
However, Jessen, along with Christopher Wirts, chief of JPRA’s Operational Support Office, wrote a memo for Southern Command’s Directorate of Operations (J3), entitled “Prisoner Handling Recommendations,” which urged Guantanamo authorities to take punishment beyond “base line rules.”
So, by late March 2002, the pieces were in place for a strategy of behavior modification designed to break down the will of the detainees and extract information from them. Still, to make the procedures “legal,” some reinterpretations of existing laws and regulation were needed.
For instance, attorneys Bybee and Yoo would narrow the definition of “torture” to circumvent laws prohibiting the brutal interrogation of detainees.
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.
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
CYA for the CIA: The CIA’s Torture Research Program June 9, 2010Posted by rogerhollander in Human Rights, Torture.
Tags: binyan mohamed, cia, CIA torture, enhanced interrogation, geneva conventions, human rights, nazi doctors, nuremberg, obama administration, roger hollander, sere, stephen soldz, torture, torture experiments, torture memos, torture research, torture techniques
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Over the last year, there have been an increasing number of accounts suggesting that, along with the CIA’s “enhanced interrogation” torture program, there was a related program experimenting with and researching the application of the torture.
For example, in the seven paragraphs released by a British court summarizing observations by British counterintelligence agents of the treatment of Binyan Mohamed (BM) by the CIA, the first two of these paragraphs stated:
It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer ….
BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed. [Emphasis added.]
The suggestion was that a new strategy was being tested and the results carefully examined. Several detainees have provided similar accounts, expressing their belief that their interrogations were being carefully studied, apparently so that the techniques could be modified based on the results. Such research would violate established laws and ethical rules governing research.
Since Nazi doctors who experimented upon prisoners in the concentration camps were put on trial at Nuremberg, the US and other countries have moved toward a high ethical standard for research on people. All but the most innocuous research requires the informed consent of those studied. Further, all research on people is subject to review by independent research ethics committees, known as Institutional Review Boards or IRBs.
In the US, there was a major push toward more stringent research ethics when the existence of the Tuskegee Syphilis Study was publicly revealed in the early 1970s. In that study, nearly 400 poor, rural, African-American men were denied existing treatment for their syphilis, and, indeed, were never told they had syphilis by participating doctors. The study by the US Public Health Service was intended to continue until the last of these men died of syphilis. When the study became public, the resulting outcry helped cement evolving ethical standards mandating informed consent for any research with even a possibility of causing harm. These rules were codified in what has become known as the Common Rule, which applies to nearly all federally-funded research, including all research by the CIA.
Experiments in Torture
A new report of which I am a coauthor, “Experiments in Torture: Evidence of Human Subject Research and Experimentation in the ‘Enhanced’ Interrogation Program”, just released by Physicians for Human Rights (PHR), confirms previous suspicions and provides the first strong evidence that the CIA was indeed engaged in illegal and unethical research on detainees in its custody. The report, the result of six months of detailed work, analyzes now-public documents, including the “torture memos” from the Justice Department’s Office of Legal Counsel and the CIA’s Inspector General Report and the accompanying CIA Office of Medical Services (OMS) guidelines for monitoring of detainees.
The report points to several instances where medical personnel – physicians and psychologists – monitored the detailed administration of torture techniques and the effects upon those being abused. The resultant knowledge was then used both as a legal rationale for the use of the techniques and to refine these abusive techniques, allegedly in order to make them safer.
For example, the OMS guidelines contain this note emphasizing how important it is “that every application of the waterboard be thoroughly documented” by medical personnel, and clarifying the nature of this documentation:
“how long each application (and the entire procedure) lasted, how much water was applied (realizing that much splashes off), how exactly the water was applied, if a seal was achieved, if the naso- or oropharynx was filled, what sort of volume was expelled, how long was the break between applications, and how the subject looked between each treatment.”
This type of documentation was not part of routine medical care as it was not being done in the interests of the person being waterboarded. Rather, the OMS made clear that this was being done “[i]n order to best inform future medical judgments and recommendations” (regarding how to torture people).
The purpose of this systematic monitoring was to modify how these techniques were implemented, that is, to develop generalizable knowledge to be utilized in the future. As Renée Llanusa-Cestero demonstrated in a recent paper on CIA research in the peer-reviewed journal Accountability in Medicine, the medical personnel conducting these observations were primarily present as researchers to observe and monitor, not as treating doctors.
Other examples in the PHR report describe instances in which OMS staff investigated the degree to which severe pain that may meet the legal definition of torture arose from the applications of a specific technique (sleep deprivation) or from combinations of individual techniques. In the combined techniques example, they apparently experimented with different combinations of abusive techniques – “for example, when an insult slap is simultaneously combined with water dousing or a kneeling stress position, or when wall standing is simultaneously combined with an abdominal slap and water dousing” – and studied the suffering that each combination created. The Office of Legal Counsel drew upon this research in one of the torture memos to argue that, because they claimed the individual enhanced techniques were not harmful, combining these varied techniques also would not cause interrogators to slip over the line allegedly separating legal techniques from illegal “torture.”
It is hard not to conclude that the CIA was conducting research upon detainees. These observations and experiments were not conducted for the benefit of the individuals being brutally interrogated, but for the purpose of creating generalizable knowledge and, thus, constituted research subject to the laws and ethical rules regulating research, including the Common Rule.
Evidence Techniques Are Harmful
The PHR report also argues that literature existing in 2002 when the torture program began provides strong reason to believe that these enhanced interrogation torture techniques might well cause severe harm to those subjected to them. In an appendix, the report summarizes a set of studies on the military’s Survival, Evasion, Resistance, and Escape (SERE) program that demonstrated a whole panoply of potentially serious effects that occurred when these techniques were administered to US service members over a few days. The resistance portion of the SERE program attempts to inoculate special forces and others at high risk of capture against breaking if subjected to techniques banned by the Geneva Conventions, that is, to torture. In SERE, soldiers are subjected to brief periods of enhanced interrogations in order to prepare them for the real thing if captured and tortured. It was to SERE that the CIA and Bush administration turned when they decided to adopt torture as official policy.
Despite the fact that those subjected to SERE were volunteers, had a “safe word” to end their abuse and knew that their torment would end in a few days, an extensive program of research demonstrates that those subjected to the techniques, even to a very limited degree, suffered a whole range of potentially serious physical and psychological effects, including severely increased stress hormone levels and high rates of psychological dissociation, which can lead to post-traumatic stress disorder. Despite this body of published research, when the Bush Justice Department worked on the torture memos, they argued – ignoring this SERE research as well as many accounts from torture survivors – that the SERE experience demonstrated that the techniques were not harmful. In later memos, however, Justice Department lawyers apparently tried to strengthen their case by citing the CIA research derived from its torture implementation as further evidence that the techniques did not cause serious harm. Thus, one of the main finding in the PHR report is that one set of potentially criminal acts, illegal and unethical research, was used, incorrectly, to justify another set of potentially criminal acts: torture of detainees.
Reason for CIA Torture Research
The language of the documents might be interpreted as suggesting that the CIA engaged in this research to avoid harming the detainees, to keep the interrogations “safe and ethical.” This was far from the truth. Rather, the Justice Department torture memos argued that torturers could be protected from prosecution for their acts of torture if they demonstrated a “good faith” effort to avoid causing the “severe pain” involved in legal definitions of torture irrespective of how much suffering and harm the torturers actually caused.
One way they could demonstrate such a good faith effort was to consult with health professionals, the researchers, who could assure them that their actions would not cause harm. Another way to demonstrate good faith was to collect and analyze evidence of prior interrogations demonstrating, allegedly, that they did not cause severe harm. Thus, the quality of the research did not matter. Its very existence would provide the CIA torturers and responsible officials with a get-out-of-jail-free card.
The SERE studies described in the PHR report provided good reason to suspect that the CIA’s torture would cause harm. That is likely why they were ignored by the CIA and the lawyers writing the torture memos. But the CIA’s torture research claiming that the enhanced interrogation tactics were safe could be used as a legal defense for the torturers, possibly counteracting the body of legitimate research demonstrating the opposite. The CIA’s research was junk science. But that was no problem because its purpose wasn’t increasing understanding, but ass covering, CYA, for the CIA.
Call for Investigation
This PHR report provides evidence that the CIA likely violated federal ethics rules as well as a prohibition in the War Crimes Act on biological experiments on prisoners “without a legitimate medical or dental purpose.” Thus, PHR calls for both a criminal investigation of this research and these experiments, which may well constitute a war crime, and an investigation by the Office of Human Research Protections of research ethics violations.
Regarding the call for a criminal investigation, it is important to realize that the logic used by the Obama administration to refuse an investigation of torture claims – that the torture memos allowed the torturers to believe their actions were legally sanctioned – does not apply to potential research on detainees. As far as is publicly known, there exist no “torture research” memos authorizing ignoring laws and regulations prohibiting research on torture techniques.
American Psychological Association
In addition to criminal and federal penalties, another necessary response to these reported torture experiments is professional sanctioning of any health professionals found to have participated in the research. Physician organizations such as the American Medical Association and the American Psychiatric Association have adopted clear ethical rules prohibiting their members’ participation in either the enhanced interrogation program or in research such as that described here. The exception among major health professional organizations is the American Psychological Association (APA).
In 2002 the APA modified its ethics code to allow psychologists to dispense with informed consent “where otherwise permitted by law or federal or institutional regulations. ” (Ethics code standard 8.05.)
Whatever the reason for the APA making this modification, it could be interpreted as allowing psychologists to follow CIA (or military) directives authorizing exemption from the informed consent requirement. This lowered standard does not change psychologists’ legal or ethical obligations in terms of causing harm, but it does unacceptably weaken research standards. This modification should be removed.
In February 2010, after eight years of stalling, the APA removed from its ethics code a related loophole, ethics code standard1.02, often described as the “Nuremberg Defense,” that allowed dispensing with any section of the code when it was in conflict with “the requirements of the law, regulations, or other governing legal authority.” But even with the long-delayed correction to 1.02, changes permitting psychologists to perform research on subjects without their consent remain in the ethics code. To date, there has been no explanation offered by the APA for reducing the standard on informed consent, nor has there been any response to longstanding calls from PHR, Psychologists for Social Responsibility, and numerous other psychological and human rights groups to restore psychologists’ informed consent ethical obligations, the standards that all other health professional associations have instituted since Tuskegee and Nuremberg. Psychologists and others should demand that the APA immediately remove this ethics code section.
Stephen Soldz is a psychoanalyst, psychologist, public health researcher and faculty member at the Boston Graduate School of Psychoanalysis. He edits the Psyche, Science, and Society blog. He is a founder of the Coalition for an Ethical Psychology, one of the organizations working to change American Psychological Association policy on participation in abusive interrogations. He is president-elect of Psychologists for Social Responsibility (PsySR).
Tags: Abu Ghraib, Abu Zubaydah, accountability for torture, acul, andy worthington, bagram, cia inspector general, CIA torture, conventin against torture, doj, enhanced interrogations, geneva conventions, Guantanamo, high-value detainees, interrogation videotapes, justice department, Khalid Sheikh Mohammed, nuremberg, office of legal counsel, olc, roger hollander, sere, sere training, steven bradbury, torture, torture memo, torture report, torture tapes, torture techniques, torture videotapes, war on terror, waterboarding
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Today was supposed to be the day that the Justice Department — after two delays — released an unclassified version of the CIA Inspector General’s 2004 Report into the interrogations of “high-value detainees” in the “War on Terror,” which Democrat Congressional staffers described as the “holy grail,” according to Greg Sargent of the Plum Line, writing in May, “because it is expected to detail torture in unprecedented detail and to cast doubt on the claim that torture works.”
Sargent was following up on an article in the Washington Post, “Hill Panel Reviewing CIA Tactics,” which described how Senate Intelligence Committee investigators were interviewing those involved in the interrogations, “examining hundreds of CIA e-mails and reviewing a classified 2005 study by the agency’s lawyers of dozens of interrogation videotapes” (which were later destroyed), and also examining the CIA Inspector General’s Report.
The Post explained that “government officials familiar with the CIA’s early interrogations” said that the “top secret” CIA report, “based on more than 100 interviews, a review of the videotapes and 38,000 pages of documents,” contained “the most powerful evidence of apparent excesses,” and added that the officials indicated that, although the report remained “closely held,” White House officials had told political allies that they intended to “declassify it for public release when the debate quiets over last month’s release of the Justice Department’s interrogation memos.” These four memos, issued by the Justice Department’s Office of Legal Counsel in 2002 and 2005, and released in April, provided a companion piece to the notorious “torture memo” of August 2002 (leaked in the wake of the Abu Ghraib scandal), and, notoriously, involved lawyers in one of the DoJ’s most prestigious departments — charged with interpreting the law as it applies to the Executive branch — seeking to rewrite the rules on torture so that it could be used in the CIA’s “high-value detainee” program.
According to the Post, officials familiar with the contents of the report said that it “concluded that some of the techniques appeared to violate the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States in 1994.” The Post also added that, according to excerpts included in the OLC memos, the report “concluded that interrogators initially used harsh techniques against some detainees who were not withholding information.”
This was a fair précis of the “excerpts” from the report that were included as footnotes in the three memos from May 2005, written by the OLC’s Principal Deputy Assistant Attorney General, Steven G. Bradbury, but as I explained in an article at the time, when analyzed in the context of the memos, the “excerpts” were even more alarming.
To establish the context, the footnotes followed Bradbury’s lame attempts to explain why it was “necessary to use the waterboard ‘at least 83 times during August 2002,’” on Abu Zubaydah, and “183 times during March 2003″ on Khalid Sheikh Mohammed. This apparently involved an appraisal that “other … methods are unlikely to elicit this information within the perceived time limit for preventing [an] attack” (in other words, the fictional ticking time-bomb scenario), but I was obliged to conclude that these “mind-boggling figures” seemed to reveal “not that each horrific round of near-drowning and panic, repeated over and over again, defused a single ticking time-bomb, but, instead, that it became a macabre compulsion on the part of the torturers, which led only to the countless false alarms reported by CIA and FBI officials who spoke to David Rose for Vanity Fair last December.”
What amazed me, however, was that, while filling his memos with largely implausible justifications for the use of torture, Bradbury cited from the Inspector General’s Report, even though it was so clearly critical of the manner in which interrogations had been conducted. These are the key passages from my article at the time:
One sign that this was indeed the case [in other words, that the CIA overreacted] comes in a disturbing footnote, in which Bradbury noted, “This is not to say that the interrogation program has worked perfectly. According to the IG Report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information … on at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements within CIA Headquarters still believed he was withholding information [passage redacted]. At the direction of CIA headquarters, interrogators therefore used the waterboard one more time on Zubaydah [passage redacted].”
Furthermore, as another revealing footnote makes clear, the IG Report also noted that, “in some cases the waterboard was used with far greater frequency than initially indicated,” and also that it was “used in a different manner” than the technique described in the DoJ opinion and used in SERE training [the torture techniques taught in US military schools to enable US personnel to resist interrogation, which were reverse engineered for use in the "War on Terror"]. As the report explained, “The difference was in the manner in which the detainees’ breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator … applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychiatrist / interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is ‘for real’ and is more poignant and convincing.”
In addition, the IG Report noted that the OMS, the CIA’s Office of Medical Services, contended that “the experience of the SERE psychologist / interrogators on the waterboard was probably misrepresented at the time, as the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant.” Chillingly, the report continued, “Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.”
I’m not surprised that the release of the report — delayed for a week from June 19, at the CIA’s request, and again from June 26 to July 1 — has been delayed again, as it clearly contains information that is vital to those of who believe that President Obama cannot “restore America’s moral stature in the world” (as he pledged in November) without holding to account those who authorized the use of torture by US personnel. However, every delay only increases the fear that, on arrival, the report will be barely less comprehensively redacted than the laughably censored version that was released to the ACLU in May 2008 (PDF).
In order to keep the debate about torture alive, I therefore recommend a visit to the ACLU’s “Accountability for Torture” project, which has been running for the last few weeks, and which states, “We can’t sweep the abuses of the last eight years under the rug. Accountability for torture is a legal, political, and moral imperative.” I also recommend a number of articles from the last few days, as part of what blogger and psychologist Jeff Kaye has described as “a mini-blog storm on behalf of the ACLU’s Accountability Project,” looking at how the Bush administration’s torture program was not just reserved for the waterboarding of three “high-value detainees” in the custody of the CIA, but was a poisonous virus that also infected the US military, and that led to over a hundred deaths in US custody in Iraq and Afghanistan.
First up is Glenn Greenwald’s article for his blog at Salon, “The suppressed fact: Deaths by US torture,” in which he states, “Those arguing against investigations and prosecutions — that we “Look to the Future, not the Past” — are literally advocating that numerous people get away with murder.” Then there are articles by Marcy Wheeler, bmaz and Jeff Kaye at Firedoglake, by Digby, and by drational and mcjoan at Daily Kos, and there’s also my article, “When Torture Kills: Ten Murders In US Prisons In Afghanistan,” which draws largely on passages in my book The Guantánamo Files, but also on testimony by former Guantánamo prisoner Omar Deghayes, and researcher John Sifton, and which, I believe, exposes three murders at the US prison at Bagram airbase that have never been investigated.
© 2009 Huffington Post
Gonzales’s Advice to Bush on How to Avoid War Crimes June 22, 2009Posted by rogerhollander in Criminal Justice, George W. Bush, Torture.
Tags: Abu Ghraib, acul, al-Qaeda, Alberto Gonzales, bush administration, Condoleezza Rice, defense department, detainee abuses, dod, doug feith, foa, freedom of information, geneva conventions, George Bush, Guantanamo, jason leopold, mike dunlavey, richard myers, roger hollander, rumsfeld, sere, Taliban, torture, War Crimes, waterboarding, william haynes, wolfowitz
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17 June 2009by: Jason Leopold, t r u t h o u t | Report
On January 25, 2002, then-White House counsel Alberto Gonzales advised George W. Bush in a memo to deny al-Qaeda and Taliban prisoners protections under the Geneva Conventions because doing so would “substantially reduces the threat of domestic criminal prosecution under the War Crimes Act” and “provide a solid defense to any future prosecution.”
Two weeks later, Bush signed an action memorandum dated February 7, 2002, addressed to Vice President Dick Cheney, which denied baseline protections to al-Qaeda and Taliban prisoners under the Third Geneva Convention. That memo, according to a recently released bipartisan report issued by the Senate Armed Services Committee, opened the door to “considering aggressive techniques,” which were then developed with the complicity of then-Defense Secretary Donald Rumsfeld, Bush’s National Security Adviser Condoleezza Rice, and other senior Bush officials.
”The President’s order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al-Qaeda or Taliban detainees,” says the committee’s December 11 report.
“While the President’s order stated that, as ‘a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions,’ the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in US custody.”
The Supreme Court held in 2006, in Hamdan v. Rumsfeld, that the prisoners were entitled to protections under the Geneva Conventions.
Many of the classified policy directives, such as Gonzales’s memo to Bush, are now part of the public record thanks to the American Civil Liberties Union’s (ACLU) Freedom of Information Act lawsuit against the Bush administration, which has so far resulted in the release of more than 100,000 pages of documents that shows how Bush officials twisted the law in order to build a legal framework for torture.
These documents have been posted on the ACLU’s web site. But several hundred of the most explosive records were republished in the book “Administration of Torture” along with hard-hitting commentary by the ACLU’s Jameel Jaffer, who heads the group’s National Security Project, and Amrit Singh, a staff attorney with the organization.
Rumsfeld Wanted a “Product”
On February 14, 2002, just one week after Bush signed the action memo, Maj. Gen. Mike Dunlavey was contacted by Rumsfeld, who asked him to attend a Defense Department meeting with Rumsfeld, Wolfowitz, and others on February 21 or 22. At the meeting, Rumsfeld told Dunlavey he wanted him to oversee interrogations at the Guantanamo Bay naval facility in Cuba. Prisoners captured by US military personnel had first arrived at Guantanamo a month earlier. Dunlavey was a family court judge in Erie County, Pennsylvania, when he got the call from Rumsfeld and was placed in charge of interrogations at Guantanamo.
Rumsfeld told Dunlavey, according to a witness statement he made on March 17, 2005, to US Air Force Lt. Gen. Randall Schmidt, who was investigating FBI complaints about abuse at Guantanamo, that the Department of Defense had rounded up “a number of bad guys” and the secretary of defense “wanted a product and wanted intelligence now.”
Rumsfeld “wanted to set up interrogation operations and to identify the senior Taliban and senior operatives and to obtain information on what they were going to do regarding their operations and structure,” Dunlavey said, according to a copy of his witness statement. “Initially, I was told that I would answer to SECDEF (Secretary of Defense) and [US Southern Command]. The directions changed and I got my marching orders from the President of the United States. I was told by the SECDEF that he wanted me back in Washington, DC every week to brief him…. The mission was to get intelligence to prevent another 9/11.”
Dunlavey did not explain what he meant by “I got my marching orders from the president.” But his comments suggest that Bush may have played a much larger role in the interrogation of prisoners than he has let on. Moreover, Dunlavey’s witness statement indicates that harsh interrogations, such as waterboarding, may have taken place earlier than previously known and may have preceded an August 1, 2002, legal opinion issued by the Justice Department’s Office of Legal Counsel authorizing specific interrogation techniques to use against prisoners.
As early as December 2001, according to the documents obtained by the ACLU, high-ranking military officials began to implement an Army and Air Force survival-training program called Survival, Evasion, Resistance and Escape (SERE), which were meant to prepare US soldiers for abuse they might suffer if captured by an outlaw regime.
In June 2004, Gen. James Hill of Southern Command, the Defense Department’s command unit responsible for military operations in Central and South America and the Caribbean, held a press briefing and confirmed that interrogation techniques specifically authorized by Rumsfeld for use at Guantanamo were derived from the SERE school. In October 2002, Dunlavey wrote to Hill to seek authorization that interrogators be granted the authority to use methods that strayed from the Army Field Manual in order to extract information from prisoners.
Dunlavey, in making his case to Hill for authority to use more aggressive techniques, attached a copy of Bush’s then classified February 7, 2002, action memo along with an analysis that said, “since the detainees are not [Enemy Prisoners of War] the Geneva Conventions limitations that ordinarily would govern captured enemy personnel interrogations are not binding on US personnel.”
Hill sent Dunlavey’s request to Gen. Richard Myers, chairman of the Joint Chiefs of Staff. Myers discussed it with William Haynes II, the Defense Department’s general counsel, who briefed Deputy Secretary of Defense Paul Wolfowitz and Undersecretary of Defense for Policy Doug Feith. The request ultimately ended up on Rumsfeld’s desk and he approved it, according to the documents.
”The documents establish that senior officials in Washington, including White House Counsel Alberto Gonzales, constructed a legal framework that would permit the abuse and torture of prisoners,” the ACLU’s Jaffer and Singh wrote in “Administration of Torture.” “They establish that Secretary of Defense Donald Rumsfeld, relying on this legal framework, expressly authorized the use of interrogation methods – including SERE methods – that went far beyond those endorsed by the Army Field Manual. They establish that Rumsfeld and Gen. Geoffrey Miller oversaw the implementation of the newly authorized interrogation methods and closely supervised the interrogation of prisoners thought to be especially valuable.”
In early December 2002, FBI officials who had participated in some interrogations at Guantanamo complained to Miller that the methods used against prisoners at Guantanamo were unlawful. But Miller was not receptive. That led FBI officials to conclude that senior Bush administration officials and Rumsfeld were making decisions about interrogations in particular.
A December 16, 2002, email written by an FBI official expressed frustration that the Defense Department refused to budge from its controversial interrogation methods.
”Looks like we are stuck in the mud with the interview approach of the military vs. law enforcement,” the email said.
In May 2004, Miller told the Senate Armed Services Committee that he briefed Wolfowitz and Undersecretary of Defense Stephen Cambone about his plan to “Gitmo-ize” the Abu Ghraib prison.
That month, an email written by a senior FBI agent in Iraq in 2004 specifically stated that President George W. Bush had signed an executive order approving the use of military dogs, sleep deprivation, and other tactics to intimidate Iraqi detainees.
The FBI email, dated May 22, 2004, followed disclosures about abuse of Iraqi detainees at Abu Ghraib prison and sought guidance on whether FBI agents in Iraq were obligated to report the US military’s harsh interrogation of inmates when that treatment violated FBI standards, but fit within the guidelines of a presidential executive order.
According to the email, Bush’s executive order authorized interrogators to use military dogs, “stress positions,” sleep “management,” loud music and “sensory deprivation through the use of hoods, etc.” to extract information from detainees in Iraq.
The May 2004, FBI email stated that the FBI interrogation team in Iraq understood that despite revisions in the executive order that occurred after the furor over the Abu Ghraib abuses, the presidential sanctioning of harsh interrogation tactics had not been rescinded.
”I have been told that all interrogation techniques previously authorized by the Executive Order are still on the table but that certain techniques can only be used if very high-level authority is granted,” the author of the FBI email said.
”We have also instructed our personnel not to participate in interrogations by military personnel which might include techniques authorized by Executive Order but beyond the bounds of FBI practices.”
The White House had emphatically denied that any such presidential executive order existed, calling the unnamed FBI official who wrote the email “mistaken.” Prior to the May 22, 2004, email several others written by FBI agents that month were sent to Valerie Caproni, the FBI’s general counsel, about detainees being tortured before the unnamed agent sent Caproni the email citing Bush’s alleged executive order.
On July 9, 2004, the FBI’s Office of Inspections distributed an email asking its agents who were stationed at Guantanamo whether they had witnessed, “Aggressive treatment, interrogations or interview techniques … which were not consistent with FBI interview policy/guidelines.”
More than two-dozen agents responded that they observed numerous instances of detainee abuse. One FBI agent wrote that, despite Rumsfeld’s public statements to the contrary, the interrogation methods “were approved at high levels w/in DoD.” In addition to Rumsfeld, the FBI emails said Paul Wolfowitz, one Bush administration official who has largely escaped scrutiny in the torture debate, approved the methods at Guantanamo.
In 2006, Miller received a Distinguished Service Medal for “exceptionally meritorious service.” Dunlavey is an Erie County judge.
Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.
Everyone Should See ‘Torturing Democracy’ May 31, 2009Posted by rogerhollander in Criminal Justice, Democracy, Torture.
Tags: Abu Ghraib, Afghanistan War, alberto mora, bagram, bill moyers, bill moyers journal, bush administration, cheney, christian century, cia interrogation, CIA torture, Colin Powell, detainees, enhanced interrogation, geneva conventions, Guantanamo, Ibn al-Shaykh al-Libi, Iraq war, lawrence wilkerson, michael wiship, military commissions, nuremberg, Petraeus, roger hollander, rule of law, sere, sherry jones, stuart couch, thomas romig, torture, torture techniques, torturing democracy, War Crimes, war criminals, waterboarding
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In all the recent debate over torture, many of our Beltway pundits and politicians have twisted themselves into verbal contortions to avoid using the word at all.
During his speech to the conservative American Enterprise Institute last week — immediately on the heels of President Obama’s address at the National Archives — former Vice President Dick Cheney used the euphemism “enhanced interrogation” a full dozen times.
Smothering the reality of torture in euphemism of course has a political value, enabling its defenders to diminish the horror and possible illegality. It also gives partisans the opening they need to divert our attention by turning the future of the prison at Guantanamo Bay into a “wedge issue,” as noted on the front page of Sunday’s New York Times.
According to the Times, “Armed with polling data that show a narrow majority of support for keeping the prison open and deep fear about the detainees, Republicans in Congress started laying plans even before the inauguration to make the debate over Guantanamo Bay a question of local community safety instead of one about national character and principles.”
No political party would dare make torture a cornerstone of its rejuvenation if people really understood what it is. And lest we
forget, we’re not just talking about waterboarding, itself a trivializing euphemism for drowning.
If we want to know what torture is, and what it does to human beings, we have to look at it squarely, without flinching. That’s just what a powerful and important film, seen by far too few Americans, does. Torturing Democracy was written and produced by one of America’s outstanding documentary reporters, Sherry Jones. (Excerpts from the film are being shown on the current edition of “Bill Moyers Journal” on PBS — check local listings, or go to the program’s website at PBS.org/Moyers, where you can be linked to the entire, 90-minute documentary.)
A longtime colleague, Sherry Jones and the film were honored this week with the prestigious RFK Journalism Award from the Robert F. Kennedy Center for Justice and Human Rights. Torturing Democracy was cited for its “meticulous reporting,” and described as “the definitive broadcast account of a deeply troubling chapter in recent American history.”
Unfortunately, as events demonstrate, the story is not yet history; the early chapters aren’t even closed. Torture still is being defended as a matter of national security, although by law it is a war crime, with those who authorized and executed it liable for prosecution as war criminals. The war on terror sparked impatience with the rule of law — and fostered the belief within our government that the commander-in-chief had the right to ignore it.
Torturing Democracy begins at 9/11 and recounts how the Bush White House and the Pentagon decided to make coercive detention and abusive interrogation the official U.S. policy on the war on terror. In sometimes graphic detail, the documentary describes the experiences of several of the men held in custody, including Shafiq Rasul, Moazzam Begg and Bisher al-Rawi, all of whom eventually were released. Charges never were filed against them and no reason was ever given for their
years in custody.
The documentary traces how tactics meant to train American troops to survive enemy interrogations — the famous SERE program (“Survival, Evasion, Resistance and Escape”) — became the basis for many of the methods employed by the CIA and by interrogators at Guantanamo and in Iraq, including waterboarding (which inflicts on its victims the terror of imminent death), sleep and sensory deprivation, shackling, caging, painful stress positions and sexual humiliation.
“We have re-created our enemy’s methodologies in Guantanamo,” Malcolm Nance, former head of the Navy’s SERE training program, says in Torturing Democracy. “It will hurt us for decades to come. Decades. Our people will all be subjected to these tactics, because we have authorized them for the world now. How it got to Guantanamo is a crime and somebody needs to figure out who did it, how they did it, who authorized them to do it… Because our servicemen will suffer for years.”
In addition to its depiction of brutality, Torturing Democracy also credits the brave few who stood up to those in power and said, “No.” In Washington, there were officials of conviction horrified by unfolding events, including Alberto Mora, the Navy’s top civilian lawyer, Major General Thomas Romig, who served as Judge Advocate General of the US Army from 2001 to 2005 and Lieutenant Colonel Stuart Couch, a former senior prosecutor with the Office of Military Commissions.
Much has happened since the film’s initial telecast on some public television stations last fall. Once classified memos from the Bush administration have been released that reveal more details of the harsh techniques used against detainees whose guilt or innocence is still to be decided.
President Obama has announced he will close Guantanamo by next January, with the specifics to come later in the summer. That was enough to set off hysteria among Democrats and Republicans alike who don’t want the remaining 240 detainees on American soil — even in a super maximum security prison, the kind already holding hundreds of terrorist suspects. The president also triggered criticism from constitutional and civil liberties lawyers when he suggested that some detainees may be held indefinitely, without due process.
But in an interview with Radio Free Europe this week, General David Petraeus, the man in charge of the military’s Central Command, praised the Guantanamo closing, saying it “sends an important message to the world” and will help advance America’s strategy in Iraq and Afghanistan.
In another revealing and disturbing development, the former chief of staff to former Secretary of State Colin Powell, Lawrence Wilkerson, has suggested what is possibly as scandalous a deception as the false case Bush and Cheney made for invading Iraq. Colonel Wilkerson writes that in their zeal to prove a link between al Qaeda and Saddam Hussein during the months leading up to the Iraq war, one suspect held in Egypt, Ibn al-Shaykh al-Libi, was water tortured until he falsely told the interrogators what they wanted to hear.
That phony confession that Wilkerson says was wrung from a broken man who simply wanted the torture to stop was then used as evidence in Colin Powell’s infamous address to the United Nations shortly before the invasion of Iraq in 2003. Colin Powell says the CIA vetted everything in his speech and that Wilkerson’s allegation is only speculation. We’ll never know the full story — al-Libi died three weeks ago in a Libyan prison. A suicide.
Or so they say.
No wonder so many Americans clamor for a truth commission that will get the facts and put them on the record, just as Torturing Democracy has done. Then we can judge for ourselves.
As the editors of the magazine The Christian Century wrote this week, “Convening a truth commission on torture would be embarrassing to the U.S. in the short term, but in the long run it would demonstrate the strength of American democracy and confirm the nation’s adherence to the rule of law… Understandably, [the President] wants to turn the page on torture. But Americans should not turn the page until they know what is written on it.”
Bill Moyers is managing editor and Michael Winship is senior writer of the weekly public affairs program Bill Moyers Journal, which airs Friday night on PBS. Check local airtimes or comment at The Moyers Blog at www.pbs.org/moyers. Research provided by editorial producer Rebecca Wharton.
The 13 People Who Made Torture Possible May 18, 2009Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture.
Tags: abu grhraib, Abu Zubaydah, al-Qaeda, Alberto Gonzales, bagram, cheney, cia interrogation, Condoleezza Rice, david addington, geneva conventions, george tenet, geroge bush, gonzales, Guantanamo, International law, james mtchell, jay bybee, john rizzo, john yoo, marcy wheeler, nuremberg, renditon, roger hollander, rumsfeld, sere, sere techniques, steven bradbury, Taliban, torture, torture memos, torture techniques, torture videos, War Crimes, william haynes
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The Bush administration’s Torture 13. They authorized it, they decided how to implement it, and they crafted the legal fig leaf to justify it.
On April 16, the Obama administration released four memos that were used to authorize torture in interrogations during the Bush administration. When President Obama released the memos, he said, “It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”
Yet 13 key people in the Bush administration cannot claim they relied on the memos from the DOJ’s Office of Legal Counsel. Some of the 13 manipulated the federal bureaucracy and the legal process to “preauthorize” torture in the days after 9/11. Others helped implement torture, and still others helped write the memos that provided the Bush administration with a legal fig leaf after torture had already begun.
The Torture 13 exploited the federal bureaucracy to establish a torture regime in two ways. First, they based the enhanced interrogation techniques on techniques used in the U.S. military’s Survival, Evasion, Resistance and Escape (SERE) program. The program — which subjects volunteers from the armed services to simulated hostile capture situations — trains servicemen and -women to withstand coercion well enough to avoid making false confessions if captured. Two retired SERE psychologists contracted with the government to “reverse-engineer” these techniques to use in detainee interrogations.
The Torture 13 also abused the legal review process in the Department of Justice in order to provide permission for torture. The DOJ’s Office of Legal Counsel (OLC) played a crucial role. OLC provides interpretations on how laws apply to the executive branch. On issues where the law is unclear, like national security, OLC opinions can set the boundary for “legal” activity for executive branch employees. As Jack Goldsmith, OLC head from 2003 to 2004, explains it, “One consequence of [OLC's] power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes.” OLC has the power, Goldsmith continues, to dispense “get-out-of-jail-free cards.” The Torture 13 exploited this power by collaborating on a series of OLC opinions that repeatedly gave U.S. officials such a “get-out-of-jail-free card” for torturing.
Between 9/11 and the end of 2002, the Torture 13 decided to torture, then reverse-engineered the techniques, and then crafted the legal cover. Here’s who they are and what they did:
1. Dick Cheney, vice president (2001-2009)
On the morning of 9/11, after the evacuation of the White House, Dick Cheney summoned his legal counsel, David Addington, to return to work. The two had worked together for years. In the 1980s, when Cheney was a congressman from Wyoming and Addington a staff attorney to another congressman, Cheney and Addington argued that in Iran-Contra, the president could ignore congressional guidance on foreign policy matters. Between 1989 and 1992, when Dick Cheney was the elder George Bush’s secretary of defense, Addington served as his counsel. He and Cheney saved the only known copies of abusive interrogation technique manuals taught at the School of the Americas. Now, on the morning of 9/11, they worked together to plot an expansive grab of executive power that they claimed was the correct response to the terrorist threat. Within two weeks, they had gotten a memo asserting almost unlimited power for the president as “the sole organ of the Nation in its foreign relations,” to respond to the terrorist attacks. As part of that expansive view of executive power, Cheney and Addington would argue that domestic and international laws prohibiting torture and abuse could not prevent the president from authorizing harsh treatment of detainees in the war against terror.
But Cheney and Addington also fought bureaucratically to construct this torture program. Cheney led the way by controlling who got access to President Bush — and making sure his own views preempted others‘. Each time the torture program got into trouble as it spread around the globe, Cheney intervened to ward off legal threats and limits, by badgering the CIA’s inspector general when he reported many problems with the interrogation program, and by lobbying Congress to legally protect those who had tortured.
Most shockingly, Cheney is reported to have ordered torture himself, even after interrogators believed detainees were cooperative. Since the 2002 OLC memo known as “Bybee Two” that authorizes torture premises its authorization for torture on the assertion that “the interrogation team is certain that” the detainee “has additional information he refuses to divulge,” Cheney appears to have ordered torture that was illegal even under the spurious guidelines of the memo.
2. David Addington, counsel to the vice president (2001-2005), chief of staff to the vice president (2005-2009)
David Addington championed the fight to argue that the president — in his role as commander in chief — could not be bound by any law, including those prohibiting torture. He did so in two ways. He advised the lawyers drawing up the legal opinions that justified torture. In particular, he ran a “War Council” with Jim Haynes, John Yoo, John Rizzo and Alberto Gonzales (see all four below) and other trusted lawyers, which crafted and executed many of the legal approaches to the war on terror together.In addition, Addington and Cheney wielded bureaucratic carrots and sticks — notably by giving or withholding promotions for lawyers who supported these illegal policies. When Jack Goldsmith withdrew a number of OLC memos because of the legal problems in them, Addington was the sole administration lawyer who defended them. Addington’s close bureaucratic control over the legal analysis process shows he was unwilling to let the lawyers give the administration a “good faith” assessment of the laws prohibiting torture.
3. Alberto Gonzales, White House counsel (2001-2005), and attorney general (2005-2008)
As White House counsel, Alberto Gonzales was nominally in charge of representing the president’s views on legal issues, including national security issues. In that role, Gonzales wrote and reviewed a number of the legal opinions that attempted to immunize torture. Most important, in a Jan. 25, 2002, opinion reportedly written with David Addington, Gonzales paved the way for exempting al-Qaida detainees from the Geneva Conventions. His memo claimed the “new kind of war” represented by the war against al-Qaida “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” In a signal that Gonzales and Addington adopted that position to immunize torture, Gonzales argued that one advantage of not applying the Geneva Convention to al-Qaida would “substantially reduce the threat of domestic criminal prosecution under the War Crimes Act.” The memo even specifically foresaw the possibility of independent counsels’ prosecuting acts against detainees.
4. James Mitchell, consultant
Even while Addington, Gonzales and the lawyers were beginning to build the legal framework for torture, a couple of military psychologists were laying out the techniques the military would use. James Mitchell, a retired military psychologist, had been a leading expert in the military’s SERE program. In December 2001, with his partner, Bruce Jessen, Mitchell reverse-engineered SERE techniques to be used to interrogate detainees. Then, in the spring of 2002, before OLC gave official legal approval to torture, Mitchell oversaw Abu Zubaydah’s interrogation. An FBI agent on the scene describes Mitchell overseeing the use of “borderline torture.” And after OLC approved waterboarding, Mitchell oversaw its use in ways that exceeded the guidelines in the OLC memo. Under Mitchell’s guidance, interrogators used the waterboard with “far greater frequency than initially indicated” — a total of 183 times in a month for Khalid Sheikh Mohammed and 83 times in a month for Abu Zubaydah.
5. George Tenet, director of Central Intelligence (1997-2004)
As director of the CIA during the early years of the war against al-Qaida, Tenet had ultimate management responsibility for the CIA’s program of capturing, detaining and interrogating suspected al-Qaida members and briefed top Cabinet members on those techniques. Published reports say Tenet approved every detail of the interrogation plans: “Any change in the plan — even if an extra day of a certain treatment was added — was signed off on by the Director.” It was under Tenet’s leadership that Mitchell and Jessen’s SERE techniques were applied to the administration’s first allegedly high-value al-Qaida prisoner, Abu Zubaydah. After approval of the harsh techniques, CIA headquarters ordered Abu Zubaydah to be waterboarded even though onsite interrogators believed Zubaydah was “compliant.” Since the Bybee Two memo authorizing torture required that interrogators believe the detainee had further information that could only be gained by using torture, this additional use of the waterboard was clearly illegal according to the memo.
6. Condoleezza Rice, national security advisor (2001-2005), secretary of state (2005-2008)
As national security advisor to President Bush, Rice coordinated much of the administration’s internal debate over interrogation policies. She approved (she now says she “conveyed the authorization”) for the first known officially sanctioned use of torture — the CIA’s interrogation of Abu Zubaydah — on July 17, 2002. This approval was given after the torture of Zubaydah had begun, and before receiving a legal OK from the OLC. The approval from the OLC was given orally in late July and in written form on Aug. 1, 2002. Rice’s approval or “convey[ance] of authorization” led directly to the intensified torture of Zubaydah.
7. John Yoo, deputy assistant attorney general, Office of Legal Counsel (2001-2003)
As deputy assistant attorney general of OLC focusing on national security for the first year and a half after 9/11, Yoo drafted many of the memos that would establish the torture regime, starting with the opinion claiming virtually unlimited power for the president in times of war. In the early months of 2002, he started working with Addington and others to draft two key memos authorizing torture: Bybee One (providing legal cover for torture) and Bybee Two (describing the techniques that could be used), both dated Aug. 1, 2002. He also helped draft a similar memo approving harsh techniques for the military completed on March 14, 2003, and even a memo eviscerating Fourth Amendment protections in the United States. The Bybee One and DOD memos argue that “necessity” or “self-defense” might be used as defenses against prosecution, even though the United Nations Convention Against Torture explicitly states that “no exceptional circumstances whatsoever, whether a state of war or a threat or war … may be invoked as a justification of torture.” Bybee Two, listing the techniques the CIA could use in interrogation, was premised on hotly debated assumptions. For example, the memo presumed that Abu Zubaydah was uncooperative, and had actionable intelligence that could only be gotten through harsh techniques. Yet Zubaydah had already cooperated with the FBI. The memo claimed Zubaydah was mentally and physically fit to be waterboarded, even though Zubaydah had had head and recent gunshot injuries. As Jack Goldsmith described Yoo’s opinions, they “could be interpreted as if they were designed to confer immunity for bad acts.” In all of his torture memos, Yoo ignored key precedents relating both specifically to waterboarding and to separation of powers.
8. Jay Bybee, assistant attorney general, Office of Legal Counsel (2001-2003)
As head of the OLC when the first torture memos were approved, Bybee signed the memos named after him that John Yoo drafted. At the time, the White House knew that Bybee wanted an appointment as a Circuit Court judge; after signing his name to memos supporting torture, he received such an appointment. Of particular concern is the timing of Bybee’s approval of the torture techniques. He first approved some techniques on July 24, 2002. The next day, Jim Haynes, the Defense Department’s general counsel, ordered the SERE unit of DOD to collect information including details on waterboarding. While the record is contradictory on whether Haynes or CIA General Counsel John Rizzo gave that information to OLC, on the day they did so, OLC approved waterboarding. One of the documents in that packet identified these actions as torture, and stated that torture often produced unreliable results.9. William “Jim” Haynes, Defense Department general counsel (2001-2008)
As general counsel of the Defense Department, Jim Haynes oversaw the legal analysis of interrogation techniques to be used with military detainees. Very early on, he worked as a broker between SERE professionals and the CIA. His office first asked for information on “exploiting” detainees in December 2001, which is when James Mitchell is first known to have worked on interrogation plans. And later, in July 2002, when CIA was already using torture with Abu Zubaydah but needed scientific cover before OLC would approve waterboarding, Haynes ordered the SERE team to produce such information immediately.Later Haynes played a key role in making sure some of the techniques were adopted, with little review, by the military. He was thus crucial to the migration of torture to Guantánamo and then Iraq. In September 2002, Haynes participated in a key visit to Guantánamo (along with Addington and other lawyers) that coincided with requests from DOD interrogators there for some of the same techniques used by the CIA.
Haynes ignored repeated warnings from within the armed services about the techniques, including statements that the techniques “may violate torture statute” and “cross the line of ‘humane’ treatment.” In October 2002, when the legal counsel for the military’s Joint Chiefs of Staff attempted to conduct a thorough legal review of the techniques, Haynes ordered her to stop, because “people were going to see” the objections that some in the military had raised. On Nov. 27, 2002, Haynes recommended that Secretary of Defense Donald Rumsfeld authorize many of the requested techniques, including stress positions, hooding, the removal of clothing, and the use of dogs — the same techniques that showed up later in the abuse at Abu Ghraib.
10. Donald Rumsfeld, secretary of defense (2001-2006)
As secretary of defense, Rumsfeld signed off on interrogation methods used in the military, notably for Abu Ghraib, Bagram Air Force Base and Guantánamo Bay. With this approval, the use of torture would move from the CIA to the military. A recent bipartisan Senate report concluded that “Secretary of Defense Donald Rumsfeld’s authorization of interrogation techniques at Guantánamo Bay was a direct cause of detainee abuse there.” Rumsfeld personally approved techniques including the use of phobias (dogs), forced nudity and stress positions on Dec. 2, 2002, signing a one-page memo prepared for him by Haynes. These techniques were among those deemed torture in the Charles Graner case and the case of “20th hijacker” Mohammed al-Qahtani. Rumsfeld also personally authorized an interrogation plan for Moahmedou Ould Slahi on Aug. 13, 2003; the plan used many of the same techniques as had been used with al-Qahtani, including sensory deprivation and “sleep adjustment.” And through it all, Rumsfeld maintained a disdainful view on these techniques, at one point quipping on a memo approving harsh techniques, “I stand for eight to 10 hours a day. Why is standing limited to four hours?”
11. John Rizzo, CIA deputy general counsel (2002-2004), acting general counsel of the Central Intelligence Agency (2001-2002, 2004-present)
As deputy general counsel and then acting general counsel for the CIA, John Rizzo’s name appears on all of the known OLC opinions on torture for the CIA. For the Bybee Two memo, Rizzo provided a number of factually contested pieces of information to OLC — notably, that Abu Zubaydah was uncooperative and physically and mentally fit enough to withstand waterboarding and other enhanced techniques. In addition, Rizzo provided a description of waterboarding using one standard, while the OLC opinion described a more moderate standard. Significantly, the description of waterboarding submitted to OLC came from the Defense Department, even though NSC had excluded DOD from discussions on the memo. Along with the description of waterboarding and other techniques, Rizzo also provided a document that called enhanced methods “torture” and deemed them unreliable — yet even with this warning, Rizzo still advocated for the CIA to get permission to use those techniques.
12. Steven Bradbury, principal deputy assistant attorney general, OLC (2004), acting assistant attorney general, OLC (2005-2009)
In 2004, the CIA’s inspector general wrote a report concluding that the CIA’s interrogation program might violate the Convention Against Torture. It fell to Acting Assistant Attorney General Steven Bradbury to write three memos in May 2005 that would dismiss the concerns the IG Report raised — in effect, to affirm the OLC’s 2002 memos legitimizing torture. Bradbury’s memos noted the ways in which prior torture had exceeded the Bybee Two memo: the 183 uses of the waterboard for Khalid Sheikh Mohammed in one month, the gallon and a half used in waterboarding, the 20 to 30 times a detainee is thrown agains the wall, the 11 days a detainee had been made to stay awake, the extra sessions of waterboarding ordered from CIA headquarters even after local interrogators deemed Abu Zubaydah to be fully compliant. Yet Bradbury does not consider it torture. He notes the CIA’s doctors’ cautions about the combination of using the waterboard with a physically fatigued detainee, yet in a separate memo approves the use of sleep deprivation and waterboading in tandem. He repeatedly concedes that the CIA’s interrogation techniques as actually implemented exceeded the SERE techniques, yet repeatedly points to the connection to SERE to argue the methods must be legal. And as with the Bybee One memo, Bradbury resorts to precisely the kind of appeal to exceptional circumstances — “used only as necessary to protect against grave threats” — to distinguish U.S. interrogation techniques from the torture it so closely resembles around the world.
13. George W. Bush, president (2001-2009)
While President Bush maintained some distance from the torture for years — Cheney describes him “basically” authorizing it — he served as the chief propagandist about its efficacy and necessity. Most notably, on Sept. 6, 2006, when Bush first confessed to the program, Bush repeated the claims made to support the Bybee Two memo: that Abu Zubaydah wouldn’t talk except by using torture. And in 2006, after the CIA’s own inspector general had raised problems with the program, after Steven Bradbury had admitted all the ways that the torture program exceeded guidelines, Bush still claimed it was legal.
”[They] were designed to be safe, to comply with our laws, our Constitution and our treaty obligations. The Department of Justice reviewed the authorized methods extensively, and determined them to be lawful.”
With this statement, the deceptions and bureaucratic games all came full circle. After all, it was Bush who, on Feb. 7, 2002, had declared the Geneva Conventions wouldn’t apply (a view the Supreme Court ultimately rejected).
Bush’s inaction in torture is as important as his actions. Bush failed to fulfill legal obligations to notify Congress of the torture program. A Senate Intelligence timeline on the torture program makes clear that Congress was not briefed on the techniques used in the torture program until after Abu Zubaydah had already been waterboarded. And in a 2003 letter, then House Intelligence ranking member Jane Harman shows that she had not yet seen evidence that Bush had signed off on this policy. This suggests President Bush did not provide the legally required notice to Congress, violating National Security Decisions Directive-286. What Bush did not say is as legally important as what he did say.
Yet, ultimately, Bush and whatever approval he gave the program is at the center of the administration’s embrace of torture. Condoleezza Rice recently said, “By definition, if it was authorized by the president, it did not violate our obligations in the Convention Against Torture.” While Rice has tried to reframe her statement, it uses the same logic used by John Yoo and David Addington to justify the program, the shocking claim that international and domestic laws cannot bind the president in times of war. Bush’s close allies still insist if he authorized it, it couldn’t be torture.
‘Ugly’ Questions for Gen. Myers May 14, 2009Posted by rogerhollander in Criminal Justice, Torture.
Tags: Abu Ghraib, al-Qaeda, Alberto Gonzales, david addington, detainees, Dick Cheney, donald rumsfeld, douglas feith, general myers, geneva conventions, Guantanamo, james hill, jane dalton, jay bybee, john rizzo, national security counsel, nuremberg, olc, Pentagon, philippe sands, president bush, richard myers, roger hollander, sere, smoking gun, Taliban, torture, torture team, torture techniques, waterboarding, william haynes
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Tuesday evening offered an unusual opportunity to question the former chairman of the Joint Chiefs of Staff (2001-2005), Air Force Gen. Richard Myers, at an alumni club dinner. He was eager to talk about his just-published memoir, Eyes on the Horizon (and I was able to scan through a copy during the cocktail hour).
Myers’s presentation, like his book, was thin gruel. After his brief talk, he seemed intent on filibustering during a meandering Q & A session. He finally called on me since no other hands were up. Some were yawning, but it was too early to simply leave.
I introduced myself as a former Army intelligence officer and CIA analyst with combined service of almost 30 years. I thanked him for his stated opposition to interrogation techniques that go beyond “our interrogation manual”; and his conviction that “the Geneva Conventions were a fundamental part of our military culture”-both viewpoints emphasized in his book.
I then noted that the recently published Senate Armed Services Committee report, “Inquiry Into the Treatment of Detainees in U.S. Custody,” sowed some doubt regarding the strength of his convictions.
Why, I asked, did Gen. Myers choose to go along in Dec. 2002 when then-Defense Secretary Donald Rumsfeld authorized harsh interrogation techniques and, earlier, in Feb. 2002, when President George W. Bush himself issued an executive order arbitrarily denying Geneva protections to al-Qaeda and Taliban detainees?
I referred Gen. Myers to the Senate committee’s finding that he had nipped in the bud an in-depth legal review of interrogation techniques, when all interested parties were eager for an authoritative ruling on their lawfulness. (The following account borrows heavily from the Senate committee report.)
Background: The summer of 2002 brought to interrogators at Guantanamo fresh guidance, plus new techniques adopted from the Korean War practices of Chinese Communist interrogators who had extracted false confessions from captured American troops.
On Aug. 1, 2002 a memo signed by the head of the Justice Department’s Office of Legal Counsel, Jay Bybee, stated that for an act to qualify as “torture”:
–”Physical pain … must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.
–”Purely mental pain or suffering … must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”
During the week of Sept. 16, 2002, a group of interrogators from Guantanamo flew to Fort Bragg, North Carolina, for training in the use of these SERE (Survival, Evasion, Resistance, & Escape) techniques, which were originally designed to help downed pilots withstand the regimen of torture employed by China. Now, SERE techniques were being “reverse engineered” and placed in the toolkit of U.S. military and CIA interrogators.
As soon as the Guantanamo interrogators returned from Fort Bragg, senior administration lawyers, including William “Jim” Haynes II (Department of Defense), John Rizzo (CIA), and David Addington (counsel to Vice President Dick Cheney), visited Guantanamo for consultations.
And, just to make quite sure there was no doubt about the new license given to interrogators, Jonathan Fredman, chief counsel to CIA’s Counterterrorist Center, also arrived and gathered the Guantanamo staff together on Oct. 2, 2002, to resolve any lingering questions regarding unfamiliar aggressive interrogation techniques, like waterboarding.
Fredman stressed, “The language of the statutes is written vaguely.” He repeated Bybee’s Aug. 1 guidance and summed up the legalities in this way: “It is basically subject to perception. If the detainee dies, you’re doing it wrong.”
Needed: More Authoritative Guidance
Small wonder that on Oct. 11, 2002, Gen. Michael Dunlavey, the commander at Guantanamo, saw fit to double check with his superior, SOUTHCOM commander Gen. James Hill and request formal authorization to use aggressive interrogation techniques, including waterboarding.
On Oct. 25, 2002, Hill forwarded the request to Gen. Myers and Secretary Rumsfeld, commenting that, while lawyers were saying the techniques could be used, “I want a legal review of it, and I want you to tell me that, policy-wise, it’s the right way to do business.” Hill later told the Army Inspector General that he (Hill) thought the request “was important enough that there ought to be a high-level look at it … ought to be a major policy discussion of this and everybody ought to be involved.”
Gen. Myers, in turn, solicited the views of the military services on the Dunlavey/Hill request.
The Army, Navy, Marines and Air Force all expressed serious concerns about the legality of the techniques and called for a comprehensive legal review. The Marine Corps, for example, wrote, “Several of the techniques arguably violate federal law, and would expose our service members to possible prosecution.”
Ends Justify Means?
The Defense Department’s Criminal Investigative Task Force (CITF) at Guantanamo joined the services in expressing grave misgivings. Reflecting the tenor of the four services’ concerns, CITF’s chief legal advisor wrote that the “legality of applying certain techniques” for which authorization was requested was “questionable.” He added that he could not “advocate any action, interrogation or otherwise, that is predicated upon the principle that all is well if the ends justify the means and others are not aware of how we conduct our business.”
Myers’s Legal Counsel, Captain (now Rear Admiral) Jane Dalton, had her own concerns (and has testified that she made Gen. Myers aware of them), together with those expressed in writing by the Army, Navy, Marines and Air Force. Dalton directed her staff to initiate a thorough legal and policy review of the proposed techniques.
The review got off to a quick start. As a first step, Dalton ordered a secure video teleconference including Guantanamo, SOUTHCOM, the Defense Intelligence Agency, and the Army’s intelligence school at Fort Huachuca. Dalton said she wanted to find out more information about the techniques in question and to begin discussing the legal issues to see if her office could do its own independent legal analysis.
See No Evil
Under oath before the Senate Armed Services Committee, Captain Dalton testified that, after she and her staff had begun their analysis, Gen. Myers directed her in November 2002 to stop the review.
She explained that Myers returned from a meeting and “advised me that [Pentagon General Counsel] Mr. Haynes wanted me … to cancel the video teleconference and to stop the review” because of concerns that “people were going to see” the Guantanamo request and the military services’ analysis of it. Haynes “wanted to keep it much more close-hold,” Dalton said.
Dalton ordered her staff to stop the legal analysis. She testified that this was the only time that she had ever been asked to stop analyzing a request that came to her for review.
I asked Gen. Myers why he stopped the in-depth legal review. He bobbed and weaved, contending first that some of the Senate report was wrong.
“But you did stop the review, that is a matter of record. Why?” I asked again.
“I stopped the broad review,” Myers replied, “but I asked Dalton to do her personal review and keep me advised.”
(Myers had a memory lapse when Senate committee members asked him about stopping the review.)
I asked again why he stopped the review, but was shouted down by an audience not used to having plain folks ask direct questions of very senior officials, past or present.
I Confess: Rumsfeld Made Me Do It
Haynes told the Senate committee that “there was a sense by DoD leadership that this decision was taking too long.”
On Nov. 27, 2002, shortly after Haynes told Myers to order Dalton to stop her review – and despite the serious legal concerns of the military services – Haynes sent Rumsfeld a one-page memo recommending that he approve all but three of the 18 techniques in the request from Guantanamo. Techniques like stress positions, nudity, exploitation of phobias (like fear of dogs), deprivation of light and auditory stimuli were all recommended for approval.
On Dec. 2, 2002, Rumsfeld signed Haynes’s recommendation, adding a handwritten note referring to the use of stress positions: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?”
As the shouting by my distinguished colleagues died down, I too remained standing, reminding myself that I had wanted to say a word about the Geneva Conventions, “for which you, Gen. Myers, express such strong support in your book.”
I waved a copy of the smoking-gun, two-page executive memorandum signed by George W. Bush on Feb. 7, 2002. That’s the one in which the President arbitrarily declared that Common Article 3 of the Geneva Conventions did not apply to al-Qaeda and Taliban detainees, and then threw in obfuscatory language from lawyers Addington and Alberto Gonzales that such detainees would nonetheless be treated “humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”
I then made reference to “Conclusion 1″ of the Senate committee report:
“On Feb. 7, 2002, President George W. Bush made a written determination that Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, did not apply to al-Qaeda or Taliban detainees.
“Following the President’s determination, techniques such as waterboarding, nudity, and stress positions … were authorized for use in interrogations of detainees in U.S. custody.”
“Gen. Myers,” I asked, “you were one of eight addressees for the President’s directive of Feb. 7, 2002. What did you do when you learned of the President’s decision to ignore Geneva?”
“Please just read my book,” Myers said. I told him I already had, and proceeded to read aloud a couple of sentences from my copy:
“You write that you told Douglas Feith, ‘I feel very strongly about this. And if Rumsfeld doesn’t defend the Geneva Conventions, I’ll contradict him in front of the President.’
“You go on to explain very clearly, ‘I was legally obligated to provide the President my best military advice – not the best advice as approved by the Secretary of Defense.’
“So, again, what did you do after you read the President’s executive order of Feb. 7, 2002?”
Myers said he had fought the good fight before the President’s decision. The sense was that, if the President wanted to dismiss Geneva, what was a mere Chairman of the Joint Chiefs to do?
In this connection, Myers included this curious passage in his book:
“By relying so heavily on just the lawyers, the President did not get the broader advice on these matters that he needed to fully consider the consequences of his actions. I thought it was critical that the nation’s leadership convey the right message to those engaged in the War on Terror.
“Showing respect for the Geneva Conventions was important to all of us in uniform. This episode epitomized the Secretary’s and the Chairman’s different statutory responsibilities to the President and the nation. The fact that the President appeared to change his previous decision showed that the system, however, imperfect, had worked.”
Enter Douglas Feith
Interestingly, Myers writes, “Douglas Feith supported my views strongly … noting that the United States had no choice but to apply the Geneva Conventions, because, like all treaties in force for the country, they bore the same weight as a federal statute.”
Myers goes on to corroborate what British lawyer/author Philippe Sands writes in The Torture Team about the apparent twinning of Feith and Myers on this issue. Sands says Feith portrayed himself and Myers as of one mind on Geneva.
Just before the President issued his Feb. 7, 2002 executive order, Feith developed this novel line of reasoning: The Geneva Conventions are very important. The best way to defend them is by honoring their “incentive system,” which rewards soldiers who fight openly and in uniform with all kinds of protections if captured.
In his book, Myers notes approvingly that this is indeed the line Feith took with the President at an NSC meeting on Feb. 4, 2002, to which Feith had been invited, three days before President Bush signed the order that has now become a smoking gun.
According to Feith, the all-important corollary is to take care not to “promiscuously hand out POW status to fighters who don’t obey the rules.” “In other words, the best way to protect the Geneva Conventions is to gut them,” as Dahlia Lithwick of Slate put it in a commentary last July.
I suppose it could even be the case that this seemed persuasive to President Bush, as well. Which would mean that Doug Feith has at least two contenders for the unenviable sobriquet with which Gen. Tommy Franks tagged him – “the f—ing stupidest guy on the face of the earth.”
It is not really funny, of course.
While researching his book, Sands, a very astute observer, emerged from a three-hour session with Myers convinced that Myers did not understand the implications of what was being done and was “confused” about the decisions that were taken.
Sands writes that when he described the interrogation techniques introduced and stressed that they were not in the manual but rather breached U.S. military guidelines, Myers became increasingly hesitant and troubled. Author Sands concludes that Myers was “hoodwinked;” that “Haynes and Rumsfeld had been able to run rings around him.”
There is no doubt something to that. And the apparent absence of Myers from the infamous torture boutiques in the White House Situation Room, aimed at discerning which particular techniques might be most appropriate for which “high-value” detainees, tends to support an out-of-the-loop defense for Myers.
I imagine it should not be all that surprising, given the way general officers are promoted these days, that Myers’ vacuousness-cum deference-boarding-on-servility-could land him at the pinnacle of our entire military establishment. Certainly, nothing he said or did Tuesday evening would contradict Sands’ assessment regarding naïveté.
Myers still writes that he found Rumsfeld to be “an insightful and incisive leader.” The general seems to have been putty in Rumsfeld’s hands – one reason he was promoted, no doubt.
My best guess is that it is a combination of dullness, cowardice and careerism that accounts for Myers’ behavior – then and now. And, with those attributes and propensities firmly in place, falling in with bad companions, as Richard Myers did, can really do you in.
As we said our good-byes Tuesday evening, one of my alumni colleagues lamented my “ugly” behavior, although it was no more ugly than it was on May 4, 2006, during my four-minute debate with Donald Rumsfeld in Atlanta. (Sadly, my encounter with Myers was not broadcast live on TV.)
A Plaudit From the Press
In attendance was a reporter from the Washington Post, but his note-taking was confined to computing whether he should take the Post’s buyout, or try to hang around for the newspaper’s inevitable funeral in a couple of years. (So don’t bother looking for a print story on the Myers event.) As we departed, the Post-man gave me what he seemed to think was the ultimate compliment – I should have been a journalist, he said.
I told him thanks just the same – that my experience has been that, unless they promise not to ask “ugly” questions and keep that promise, journalists of the Fawning Corporate Media (FCM) are not permitted to stay around long enough to qualify for a meager 401k – much less an eventual buyout.
At least I was consistent, retaining with such groups an unblemished winning-no-friends-and-influencing-no-people record, originally set three years ago when I had a chance to ask an “ugly” question or two of Donald Rumsfeld.