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The Torturers Speak July 24, 2017

Posted by rogerhollander in Barack Obama, George W. Bush, Torture, War on Terror.
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Roger’s note: I often post articles and write on the theme of the United States as an imperial power which through economic and military might creates death and misery around the globe.  This, of course, is counter to the narrative that we learned in school and still thrives in popular culture that sees the U.S. as the “leader of the free world,” the world’s greatest champion of freedom and democracy.

Torture as the official policy of the United States government of Cheney/Bush was done away with under the presidency of Barack Obama, but it is poised to come back again under Trump.  This would not have been possible if Cheney, Bush and the rest of the Inquisition regime had been held legally criminally accountable.  Obama’s rationalization that it is better to look ahead rather that backwards is one of the most vacuous and disingenuous statements I have ever heard coming out of the mouth of a politician (and that is saying a lot).  And later he added, as if he was shooting the shit over cocktails, “yeah, we tortured some folks.”  

America the Beautiful. 

 

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The Editorial Board, New York Times, June 23, 2917

It’s hard to watch the videotaped depositions of the two former military psychologists who, working as independent contractors, designed, oversaw and helped carry out the “enhanced interrogation” of detainees held at C.I.A. black sites in the months after the Sept. 11 terror attacks.

The men, Bruce Jessen and James Mitchell, strike a professional pose. Dressed in suits and ties, speaking matter-of-factly, they describe the barbaric acts they and others inflicted on the captives, who were swept up indiscriminately and then waterboarded, slammed into walls, locked in coffins and more — all in the hunt for intelligence that few, if any, of them possessed. One died of apparent hypothermia. Many others were ultimately released without charge.

When pushed to confront the horror and uselessness of what they had done, the psychologists fell back on one of the oldest justifications of wartime. “We were soldiers doing what we were instructed to do,” Dr. Jessen said. Perhaps, but they were also soldiers whose contracting business was paid more than $81 million.

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Still image taken from a video deposition of Dr. James Mitchell.

The Times on Tuesday published the depositions, taken earlier this year in the course of a federal lawsuit brought against Dr. Jessen and Dr. Mitchell by two former detainees and the family of a third who died in C.I.A. custody in Afghanistan. The psychologists may be the only two people to face any meaningful legal consequences for their role in one of the darkest periods of recent American history. A federal civil trial is set to start Sept. 5 in Spokane, Wash.

The details of the treatment of dozens of detainees at the hands of American intelligence contractors are by now widely known, yet it is still chilling to watch Dr. Mitchell and Dr. Jessen rationalize their use of techniques that the C.I.A.’s top lawyer at the time called “sadistic and terrifying.”

“I thought he would be uncomfortable,” Dr. Mitchell said of waterboarding, in which torturers simulate the sensation of drowning by pouring water over a cloth covering a person’s face. “It sucks. I don’t know that it’s painful, but it’s distressing.” Dr. Mitchell once said detainees would rather have their legs broken. A 2002 cable described the waterboarding of Abu Zubaydah, who officials wrongly believed was a leader of Al Qaeda, and who was subjected to the procedure 83 times over a matter of days. “At the onset of involuntary stomach and leg spasms, subject was again elevated to clear his airway, which was followed by hysterical pleas. Subject was distressed to the level that he was unable to effectively communicate or adequately engage the team.”

Mr. Zubaydah did give interrogators key information about the Sept. 11 plot — not as a result of the waterboarding, but in response to traditional interrogation methods. Yet, thinking he might have more, torturers forged ahead with Mr. Zubaydah and with others, confident that physical abuse would lead to actionable intelligence. Some detainees were handcuffed to a bar on the wall so they could not rest or lie down for days at a time. During his own deposition, Jose Rodriguez, a top C.I.A. official who destroyed videotapes of the interrogations because of what he called their “ugly visuals,” compared the abuse to a gym workout. When Suleiman Salim, one of the plaintiffs suing the psychologists, was asked to describe his experience, he broke down in tears.

Even now, the psychologists claim that their techniques, which have been banned, caused no lasting damage. But Mr. Salim, like many other former detainees, still suffers psychological harm — including nightmares, flashbacks, headaches and sleeplessness.

Dr. Jessen admitted to some discomfort with the program he helped devise. “Jim and I didn’t want to continue doing what we were doing,” he said in his deposition. But the pressure from intelligence officials was intense. “They kept telling me every day a nuclear bomb was going to be exploded in the United States and that because I had told them to stop, I had lost my nerve and it was going to be my fault if I didn’t continue.”

The full story of what happened under the torture program may never be made public. Earlier this month, the Trump administration began returningcopies of a 2014 Senate classified report on torture to Congress, where it may be locked away for good. Meanwhile, President Trump, with no expertise on torture and its sad history, has at times promised to bring back waterboarding and other techniques banned by President Obama.

Many people bear responsibility for the depravity of the torture program, but most will never suffer any legal consequences. The suit against Dr. Jessen and Dr. Mitchell may be the last opportunity for some accountability.

Brennan and Kiriakou, Drones and Torture February 6, 2013

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, George W. Bush, Human Rights, Torture, War on Terror.
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Posted on Feb 6, 2013, http://www.truthdig.com

By Amy Goodman

John Brennan and John Kiriakou worked together years ago, but their careers have dramatically diverged. Brennan is now on track to head the CIA, while Kiriakou is headed off to prison. Each of their fates is tied to the so-called war on terror, which under President George W. Bush provoked worldwide condemnation. President Barack Obama rebranded the war on terror innocuously as “overseas contingency operations,” but, rather than retrench from the odious practices of his predecessor, Obama instead escalated. His promotion of Brennan, and his prosecution of Kiriakou, demonstrate how the recent excesses of U.S. presidential power are not transient aberrations, but the creation of a frightening new normal, where drone strikes, warrantless surveillance, assassination and indefinite detention are conducted with arrogance and impunity, shielded by secrecy and beyond the reach of law.

John Kiriakou spent 14 years at the CIA as an analyst and a case officer. In 2002, he led the team that found Abu Zubaydah, alleged to be a high-ranking member of al-Qaida. Kiriakou was the first to publicly confirm the use of waterboarding by the CIA, in a 2007 interview with ABC’s Brian Ross. He told Ross: “At the time, I felt that waterboarding was something that we needed to do. … I think I’ve changed my mind, and I think that waterboarding is probably something that we shouldn’t be in the business of doing.” Kiriakou says he found the “enhanced interrogation techniques” immoral, and declined to be trained to use them.

Since the interview, it has become known that Zubaydah was waterboarded at least 83 times, and that he provided no useful information as a result. He remains imprisoned at Guantanamo Bay, without charge. Kiriakou will soon start serving his 30-month prison sentence, but not for disclosing anything about waterboarding. He pled guilty to disclosing the name of a former CIA interrogator to a journalist, with information that the interrogator himself had posted to a publicly available website.

Meanwhile, John Brennan, longtime counterterrorism advisor to Obama, is expected to receive Senate confirmation as the new director of central intelligence. I recently asked Kiriakou what he thought of Brennan:

“I’ve known John Brennan since 1990. I worked directly for John Brennan twice. I think that he is a terrible choice to lead the CIA. I think that it’s time for the CIA to move beyond the ugliness of the post-September 11th regime, and we need someone who is going to respect the Constitution and to not be bogged down by a legacy of torture. I think that President Obama’s appointment of John Brennan sends the wrong message to all Americans.”

Obama has once already considered Brennan for the top CIA job, back in 2008. Brennan withdrew his nomination then under a hail of criticism for supporting the Bush-era torture policies in his various top-level intelligence positions, including head of the National Counterterrorism Center.

What a difference four years makes. With the killing of Osama bin Laden notched in his belt, Obama seems immune from counterterror criticism. John Brennan is said to manage the notorious “kill list” of people that Obama believes he has the right to kill anytime, anywhere on the planet, as part of his “overseas contingency operations.” This includes the killing of U.S. citizens, without any charge, trial or due process whatsoever. Drone strikes are one way these assassinations are carried out. U.S. citizen Anwar al-Awlaki was killed in Yemen by a drone strike, then, two weeks later, his 16-year-old son, Abdulrahman al-Awlaki, was killed the same way.

I asked Col. Lawrence Wilkerson, who served as chief of staff to Secretary of State Colin Powell from 2002 to 2005, what he thought of Brennan. He told me: “What’s happening with drone strikes around the world right now is, in my opinion, as bad a development as many of the things we now condemn so readily, with 20/20 hindsight, in the George W. Bush administration. We are creating more enemies than we’re killing. We are doing things that violate international law. We are even killing American citizens without due process and have an attorney general who has said that due process does not necessarily include the legal process. Those are really scary words.”

While Kiriakou goes to prison for revealing a name, the U.K.-based Bureau of Investigative Journalism is launching a project called “Naming the Dead,” hoping “to identify as many as possible of those killed in U.S. covert drone strikes in Pakistan, whether civilian or militant.” The BIJ reports a “minimum 2,629 people who appear to have so far died in CIA drone strikes in Pakistan.” John Brennan should be asked about each of them.

Denis Moynihan contributed research to this column.

Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 1,000 stations in North America. She is the co-author of “The Silenced Majority,” a New York Times best-seller.

Obama Justice Department indicts ex-CIA agent for exposing torture April 8, 2012

Posted by rogerhollander in Barack Obama, Torture, War on Terror.
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, www.opednews.com, April 8, 2012

Thursday’s indictment of John Kiriakou for exposing CIA torture of  detainees confirms yet again that the Obama administration is continuing and deepening the crimes carried out by the Bush White House. Kiriakou, a CIA agent for 14 years, is being prosecuted for speaking to two  journalists about the waterboarding of Abu Zubaydah.

In December  2007, he appeared in an ABC News interview, becoming the first CIA  official to confirm the use of waterboarding of so-called “enemy  combatants” and to describe the practice as torture. It is now known  that Zubaydah was waterboarded 83 times in the space of one month while  being held in a series of CIA “black sites” from Thailand to Poland to  Diego Garcia.

Zubaydah, severely wounded when he was captured by  US and Pakistani intelligence agents, had already been suffering the  effects of a shrapnel wound to the head he received during the  CIA-backed war in Afghanistan in the 1980s. Under US control, he was  beaten, placed in extreme temperatures, and subjected to music played at debilitating volumes, sexual humiliation and sleep deprivation.

His interrogators also locked him for protracted periods in a small box,  where he was forced to crouch in complete darkness, while the stressful  position caused his wounds to open up and bleed.

At some point during this ordeal, the CIA removed Zubaydah’s left eye.

Zubaydah’s torture was overseen in detail by the top officials of the US government, from President George W. Bush and Vice  President Dick Cheney on down.

Bush publicly described Zubaydah  as Al Qaeda’s chief of operations, in charge of “plotting and planning  death and destruction on the United States.” He was charged not only  with planning 9/11, but with involvement in virtually every other crime  attributed to Al Qaeda.

In September of last year, in response to habeas corpus filings by Zubaydah’s attorneys demanding justification  for his continued imprisonment at the US prison camp in Guantanamo Bay,  Cuba, the government formally recanted these charges. It acknowledged  that Zubaydah had no “direct role in or advance knowledge of the  terrorist attacks of September 11, 2001,” and had not been a “member” of Al Qaeda or even “formally” identified with the organization.

Yet, after a decade of imprisonment and torture, the government refuses to  either try or release him. He is one of those designated by the Obama  administration to be detained indefinitely without charges.

The  reasons are clear. There appears to be no evidence against him, and his  case raises a whole range of crimes by government officials, including  torture and the CIA’s destruction of videotapes recording his  interrogation sessions, carried out in defiance of court demands that  they be produced.

Nor have any of those responsible for the  torture of Zubaydah and countless others been brought to justice. This  includes not just the CIA torturers, but Bush, Cheney, former CIA  Director George Tenet, former National Security Advisor Condoleezza  Rice, and ex-Justice Department officials like Jay Bybee, and John Yoo,  who drafted the memos arguing that torture was legal.

The Obama  administration has protected all of these individuals, repeatedly  intervening in court and invoking “state secrets” to quash cases brought by torture victims.

While refusing to either try or release the  victim of torture, Zubaydah, or to prosecute those responsible for the  crimes committed against him, the Obama administration is prosecuting  Kiriakou for daring to publicly expose these crimes, threatening him  with up to 45 years in prison.

It is not an accident that the  indictment of Kiriakou comes just a day after the Pentagon’s formal  presentation of capital charges against Khalid Sheik  Mohammed — waterboarded 183 times — and four others alleged to be part of  the 9/11 conspiracy. It is a means of intimidating the attorneys of the  defendants. The government wants to preclude any disruption of its  rigged military commission at Guantanamo with charges of torture.

More fundamentally, the prosecution of Kiriakou is part of a policy of state secrecy and repression that pervades the US government under Obama, who came into office promising “the most transparent administration in  history.” This marks the sixth government whistleblower to be charged by the Obama administration under the Espionage Act, twice as many such  prosecutions as have been brought by all preceding administrations  combined. Prominent among them is Private Bradley Manning, who is  alleged to have leaked documents exposing US war crimes to WikiLeaks. He has been held under conditions tantamount to torture and faces a  possible death penalty.

In all of these cases, the World War  I-era Espionage Act is being used to punish not spying on behalf of a  foreign government, but exposing the US government’s own crimes to the  American people. The utter lawlessness of US foreign policy goes hand-in-hand with the collapse of democracy at home.

These cases make  clear that it is the American working people whom the government views  as its most dangerous enemy. It is determined to keep them in the dark  as it systematically erects the framework for a police-state  dictatorship.

Over the last few months, Obama has signed into law legislation granting himself the power to condemn alleged enemies of  the state to indefinite military detention without charges or trials,  and his attorney general, Eric Holder, has publicly asserted the “right” of the president to order the assassination of American citizens  alleged to be involved in “hostilities” towards the US government.

After more than three years in office, it is abundantly clear that the Obama  administration has substantially escalated the crimes carried out by its predecessor, both in terms of militarism abroad and state repression at home. These crimes were not the outcome of some specific right-wing  ideology of the Bush White House, but rather the response of the US  ruling elite to the decline in the global position of American  capitalism and the growth of social inequality at home, which has  increasingly rendered democratic methods of rule untenable.

The  repressive measures being implemented by the government are targeted  first and foremost at an anticipated eruption of mass popular struggles  against the policies of the ruling class and the conditions being  created by the crisis of the capitalist system

Defining Torture March 13, 2010

Posted by rogerhollander in Torture.
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Monday 01 March 2010

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

The authors continued:

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

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

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

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

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

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

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

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

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

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

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

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

As I explained in an article at the time:

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

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

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

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

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

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

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

Release of the ‘Holy Grail’ of Torture Reports Delayed Again July 2, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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Published on Thursday, July 2, 2009 by Huffington Post by Andy Worthington

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

Andy Worthington is a journalist and historian, based in London. He is the author of The Guantánamo Files, the first book to tell the stories of all the detainees in America’s illegal prison. For more information, visit his blog here.

The 13 People Who Made Torture Possible May 18, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture.
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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.

by Marcy Wheeler

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.

Marcy Wheeler writes her blog, emptywheel, for FireDogLake.com

Torture Smoking Gun? May 14, 2009

Posted by rogerhollander in Criminal Justice, Torture, Uncategorized.
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by Scott Horton

Sen. Sheldon Whitehouse (D-RI) opened a hearing on the Bush administration’s torture policy quoting Tallyrand: “The greatest danger in times of crisis comes from the zeal of those who are inexperienced.” Whitehouse promised to separate the “truth” from its “bodyguard of lies.” In doing so, the former federal prosecutor brought the shadowy world of intelligence into Room 226 of the Dirksen Senate Office Building. Former star FBI interrogator Ali Soufan, widely described as the bureau’s best and most effective interrogator working in the Arabic language, testified off-camera and behind a wooden partition. Concerned for his and his family’s security, he made the unusual demand a part of his agreement to appear and testify.

The effort to destroy the Zelikow memo is not just evidence of standard record-keeping practice; it may well spring from recognition that the memo might be used as evidence that the Bush administration was engaged in criminality.

The hearing produced two significant developments as well as a great deal of political rhetoric. Soufan’s testimony focused on the interrogation of Abu Zubaydah. Throughout the history of the torture debate, the Bush administration has cited this as a triumph of its techniques. Sen. Whitehouse read Bush’s September 6, 2006, White House statement making one of these claims. Soufan, who was personally present through the process, called the Bush claims a “half-truth,” accurate as to the circumstances of Abu Zubaydah’s capture and detention, but not as to the claimed successes using highly coercive techniques. One of the Justice Department’s torture memos (from May 2005) contained a similar claim that actionable intelligence was obtained “once enhanced techniques were employed.” Soufan termed this a lie. He also noted that successful interrogations of Khalid Sheikh Mohammed and Jose Padilla, which gained useful intelligence, occurred before the introduction of the Bush program and therefore couldn’t be claimed as success stories for it. In his remarks, Soufan sharply repudiated the harsh techniques he observed. “These techniques… are ineffective, slow, and unreliable and, as a result, harmful to our efforts to defeat al Qaeda,” he said. He also downplayed claims that there was a dispute between the FBI and CIA about the use of the Bush techniques. CIA interrogators agreed with his assessment, he noted.

Philip Zelikow, a lawyer and history professor who had served as a counselor to Condoleezza Rice at the State Department, testified that the Justice Department had thwarted legislation sponsored by Sen. John McCain (R-AZ) that prohibited cruel, inhuman, and degrading techniques on detainees. He noted that McCain and other sponsors understood the legislation as a prohibition on waterboarding and other harsh techniques, but through legal sleight of hand, Steven Bradbury, then head of the Justice Department’s Office of Legal Counsel, had nevertheless found that the legislation was ineffective to make the expected changes. Zelikow recorded his opposition to this view in his own memo, which he disseminated widely within the Bush administration. It was made clear to him that his memo was not appreciated, and, moreover, an effort was made to collect and destroy copies of the memo. One copy has now been identified in the records of the State Department, he noted. Its declassification and release are anticipated shortly.

The story surrounding the efforts to corral and destroy the Zelikow memo is more than a curious vignette. Lawyers studying the issue of criminal liability of the memo writers are focused on evidence of mens rea-a state of mind that reflects recognition of criminal wrongdoing. The effort to destroy the memo is not just evidence of standard record-keeping practice; it may well spring from recognition that the memo might be used as evidence that the Bush administration was engaged in criminality.

Republicans called two legal experts to offer opinions but no fact witnesses. This raised the question of whether they have a CIA interrogator who is ready or willing to make a case to support Cheney’s claims about the efficacy of torture.

In opening remarks, Sen. Russ Feingold (D-WI) leveled a direct attack on former Vice President Dick Cheney, saying he was “misleading the American people” with claims that Bush-era techniques had been effective. “Nothing I have seen-including the two documents to which former Vice President Cheney has repeatedly referred-indicates that the torture techniques… were necessary,” Feingold said. Sen. Lindsey Graham (R-SC) entered the debate insisting the hearing was “not really fair to” the Bush administration. “I don’t know whether this is actually pursuing the nobility of the law or a political stunt,” he said. Graham offered a grilling of the former lead FBI interrogator, insisting that his view was “not the whole picture.” However, Graham stumbled during the hearing, citing a debunked and now-retracted statement by former CIA agent John Kiriakou about the interrogation of Abu Zubaydah and was corrected by the witness for his mistake.

Graham was the only Republican to attend the hearing as a questioner, and the Republican side offered no fact witnesses of their own. Soufan’s and Zelikow’s presentations weren’t refuted or weakened. For now the Republican pushback on the torture issue consists of attacks on the credibility of House Speaker Nancy Pelosi-what she knew and when she was told about the Bush administration techniques. Yet that issue has not caught fire and remains distant from the heart of the controversy. The Senate hearing set the stage for the release of the Justice Department’s ethics report conducted while Bush was still in office. Zelikow called for a special investigation during his testimony and disclosed that evening on MSNBC’s Rachel Maddow Show that the special prosecutor appointed under Bush to probe the destruction of CIA videotapes of torture, John Durham, has expanded to cover the CIA’s failure to provide information to the 9/11 Commission about torture. Sen. Whitehouse has declared that he would chair new hearings featuring the Bush administration lawyers after the release of the Justice Department ethics report. Then the focus will fall on the possible impeachment of former OLC chief Jay Bybee, now a federal appeals judge, and bar discipline of other lawyers. The issue continues to build regardless of what the Obama White House wishes.

Scott Horton, a senior fellow at The Nation Institute, lectures at Columbia Law School. 

CIA Refuses to Turn Over Torture Tape Documents May 13, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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by: Jason Leopold, t r u t h o u t | Report

 

The CIA claims the integrity of a special prosecutor’s criminal investigation into the destruction of 92 interrogation videotapes will be compromised if the agency is forced to turn over detailed documents to the American Civil Liberties Union (ACLU) describing the contents of the tapes, according to newly released court documents.

    In a May 5 letter to US District Court Judge Alvin Hellerstein, Lev Dassin, the acting US attorney for the Southern District of New York, said the Justice Department recently had discussions with prosecutors working on the criminal investigation into the destruction of the interrogation tapes and was informed that “the production of documents … would conflict and substantially interfere with the [criminal] investigation” into the destruction of the interrogation tapes.

    “As the court is aware, the scope of the tapes investigation includes the review of whether any person obstructed justice, knowingly made materially false statements, or acted in contempt of court or Congress in connection with the destruction of videotapes,” Dassin’s letter says. “The Government thus respectfully requests that [a previous court order demanding the CIA turn over detailed descriptions of the contents of the destroyed tapes] be withdrawn or otherwise stayed until the tapes investigation has been completed.”

    Amrit Singh, an ACLU staff attorney, said the move is “a classic CIA delay tactic.”

    In court papers, she said the government is using the criminal investigation “as a pretext for indefinitely postponing” its obligation to produce documents related to the destruction of the videotapes.

    “The Government makes no mention of an expected timeline for completion of [Special Prosecutor John] Durham[‘s] investigation,” the ACLU said in court papers. “Nor has Mr. Durham provided a declaration in support of the Government’s position.”

    Hellerstein seemed to agree. He pointed out in a two-page order that Durham had not stepped forward to state that his probe would be hindered if documents related to the destruction of the tapes were turned over to the ACLU.

    In fact, in a March court filing, Dassin noted that a stay of the contempt motion filed by the ACLU seeking release of the tapes was allowed to expire on February 28 without a request for a continuation – signaling that Durham’s investigation was complete. In January, Durham had indicated in a court filing that he expected to wrap up his probe by the end of February.

    Last month, however, Durham questioned the CIA’s former number three official, Kyle “Dusty” Foggo, about the destruction of the tapes. Foggo, who was sentenced to three years in prison for fraud for steering lucrative contracts to a friend, was due to report to federal prison, but Durham asked for a delay so he could question him about the tape destruction.

    In December 2007, the ACLU filed a motion to hold the CIA in contempt for its destruction of the tapes in violation of a court order requiring the agency to produce or identify all records requested by the ACLU related to the CIA’s interrogation of “war on terror” detainees.

    Hellerstein ordered the Justice Department, on behalf of the CIA, to file legal briefs by May 27 justifying the reasons for withholding the documents. He added that those papers should include affidavits, including a declaration from the special prosecutor investigating the tape destruction

    Those documents “may include also any reasons why the identity of persons involved in the destruction should not be disclosed,” Hellerstein wrote in a two-page order.

    Several weeks ago, Dassin revealed in another court filing that the CIA has about 3,000 documents related to the 92 destroyed videotapes, suggesting an extensive back-and-forth between CIA field operatives and officials of the Bush administration. The Justice Department said the documents include “cables, memoranda, notes and e-mails” related to the destroyed CIA videotapes.

    In last week’s court filing, Dassin said, “those 3,000 records included ‘contemporaneous records,’ which were created at the time of the interrogation or at the time the videotapes were viewed, ‘intelligence record,’ which do not describe the interrogations but contain raw intelligence collected from the interrogations, ‘derivative records,’ which summarize information contained within the contemporaneous records, and documents related to the location of the interrogations, that upon further review by the CIA, were determined not to relate to the interrogations or to the destroyed videotapes.”

    The ACLU and the government have jointly proposed that the government describe the contents of the “contemporaneous” and “derivative” records, but not the intelligence records or the “other records that ultimately proved to be unrelated to the interrogations or the videotapes.”

    Dassin said the Justice Department intends to turn over additional indexes next month, and on May 18 will produce a list of “all contemporaneous records and all derivative records” related to the destruction of the interrogation tapes, but he added that quite a bit of information will be withheld.

    In previous court filings, Dassin acknowledged that 12 videotapes, showed Zubaydah and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, being subjected to waterboarding and other harsh methods. The 80 other videotapes purportedly show Zubaydah and al-Nashiri in their prison cells. Some of the videotapes predated the Justice Department’s August 1, 2002, legal memo authorizing CIA interrogators to use ten torturous methods against “high-value” detainees.

    But it’s unknown whether the interrogation tapes that predate the August 1, 2002, “torture” depict “enhanced interrogation” techniques not yet approved by the Justice Department.

    Last week, the CIA turned over to the ACLU documents that showed CIA interrogators at a secret “black site” prison provided top agency officials in Langley with daily “torture” updates of Abu Zubaydah, the alleged “high-level” terrorist detainee, who was waterboarded 83 times in August 2002.

    The documents included two sets of indexes (Part I) (Part II), totaling 52 pages that contained general descriptions of cables sent back to CIA headquarters describing the August 2002, videotaped interrogation sessions of Zubaydah. Those cable transmissions included a description of the techniques interrogators had used and the intelligence, if any, culled from those sessions.

    The CIA and the Justice Department declined to turn over a more detailed description of the cables its field agents sent back to headquarters, citing several exemptions under the Freedom of Information Act.

    In a two-page letter accompanying the indexes, CIA Associate General Counsel John McPherson wrote that a “senior government official” would submit a declaration on May 22 “that more fully explains the justifications for withholding a more detailed description of the cables.”

torture tapes and cheney


Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.

Torture: An Author and a Resister May 1, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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funeral-alyssa-petersonThe funeral for Army Spc. Alyssa Peterson, Glagstaff, Arizona. (Photo: Jill Torrance / Getty Images)

Ann Wright

www.truthout.org, May 1, 2009

As a Bush administration political appointee Assistant Attorney General in the Office of Legal Counsel of the Department of Justice, Jay Bybee, a Mormon, wrote one of four torture memos released last month. Bybee’s August 1, 2002, 20-page memorandum laid out in excruciating detail the interrogation techniques he was authorizing the Central Intelligence Agency (CIA) to use on al-Qaeda operative Abu Zubaydah.

    Bybee authorized ten “enhanced interrogation techniques” to encourage Abu Zubaydah to disclose “crucial information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against US interests overseas.” The torture techniques authorized were (1) attention grasp, (2) walling, (3) facial hold, (4) facial slap, (5) cramped confinement, (6) wall standing, (7) stress position, (8) sleep deprivation, (9) insects placed in a confinement box and (10) waterboarding.

    The current Attorney General of the United States Eric Holder has stated that waterboarding is torture, while the previous Attorney General Judge Mukasey refused to comment on whether waterboarding is torture.

    From recently released CIA documents, we know the CIA waterboarded Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times.

    But, we know that from March through June, 2002, according to FBI interrogator Ali Soufan in an op-ed to The New York Times on April 23, 2009, FBI interrogators had already gotten “actionable intelligence” from Zubaydah using traditional, nontorturing interrogation techniques, including that Khalid Sheikh Mohammed was the mastermind of 9/11 and that Jose Padilla was planning to be a “dirty bomber.”

    Ninety of the 92 interrogation videotapes the CIA admits it destroyed were interrogations of Abu Zubaydah. Zubaydah’s British attorney Brent Mickum, in the most detailed account the public has had of Zubaydah’s life, states that after all the waterboarding and other torture methods used, the CIA finally recognized Zubaydah was not the senior al-Qaeda leader they had portrayed him to be. According to Mickum, the military commissions at Guantanamo are now “airbrushing” his name from the charge sheets of other Guantanamo prisoners. Mickum reveals Zubaydah was severely wounded in Afghanistan in 1992 while fighting communist insurgents after the withdrawal of Soviet forces. He has two pieces of shrapnel in his head, which have affected his memory to the extent that “he cannot remember his mother’s name or face.” Mickum states that Zubaydah was shot and severely wounded when he was picked up in Pakistan. His life was saved by a John Hopkins surgeon flown to the region. After being saved from death, he was almost tortured to death by CIA operatives. Mickum says that Zubaydah is a stateless Palestinian with no country to argue on his behalf and a United States government now embarrassed at being caught in its own illegal conduct.

    We know that combinations of the other nine techniques authorized by Jay Bybee can be classified as torture, as the Convening Authority of the Military Commissions at Guantanamo Susan Crawford declared when she dismissed the charges against Guantanamo prisoner Mohammed al-Qahtani, in January, 2009, in the last days of the Bush administration.

    Crawford said that for 160 days al-Qahtani’s only contact was with the interrogators and that 48 of 54 consecutive days he was subjected to 18- to 20-hour interrogations. He was strip searched and had to stand naked in front of a female agent. Al-Qahtani was forced to wear a woman’s bra and had a thong placed on his head during the course of his interrogation and was told that his mother and sister were whores. With a leash tied to his chains, he was led around the room “and forced to perform a series of dog tricks.” He was threatened with a military working dog named Zeus. The interrogations were so severe that twice al-Qahtani had to be hospitalized at Guantanamo with bradycardia, a condition in which the heart rate falls below 60 beats a minute and which, in extreme cases, can lead to heart failure and death. At one point, al-Qahtani’s heart rate dropped to 35 beats per minute, the interrogation records showed.

    The torture techniques Jay Bybee authorized in 2002 migrated to Iraq in 2003. Maj. Gen. Geoffrey Miller traveled to Iraq from Guantanamo to demonstrate to soldiers in Iraq the techniques the military and CIA were using in Guantanamo.

    In September 2003, another Mormon, a woman soldier, US Army Spc. Alyssa Peterson, said she refused to use the interrogation techniques that Bybee had authorized on Iraqi prisoners. An Arabic linguist with the US Army’s 101st Airborne Division at Tal Afar base, Iraq, 27-year-old Peterson, refused to take part in interrogations in the “cage” where Iraqis were stripped naked in front of female soldiers, mocked and their manhood degraded and burned with cigarettes, among other things. Three days later, on September 15, 2003, Peterson was found dead of a gunshot wound at Tal Afar base. The Army has classified her death as suicide.

    Jay Bybee, in thanks for his being the loyal soldier to the Bush administration’s policies of torture, was nominated and confirmed by the US Senate as a judge on the Ninth Circuit Court of Appeals, where he sits to this day in his lifetime appointment. Jay Bybee, an author of torture, reportedly has a placard in his home for his children that reads, “We don’t hurt each other.”

    Alyssa Peterson, for saying no to torture, is dead, perhaps by her own hand.

    To help Army Spc. Alyssa Peterson rest in peace, I say we should demand accountability from our officials and IMPEACH the torture judge, Jay Bybee.

»

Ann Wright is a 29-year US Army Reserves veteran who retired as a colonel. She was a US diplomat, who served in Nicaragua, Grenada, Somali, Uzbekistan, Kyrgyzstan, Sierra Leone, Micronesia, Mongolia and Afghanistan, where she helped reopen the US Embassy in December 2001. She has traveled to Gaza twice in the past three months and will make her third trip in May 2009. She is the co-author of “Dissent: Voices of Conscience.”

Torturers Should Be Punished April 22, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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by Amy Goodman

SPOKANE, Wash. – George W. Bush insisted that the U.S. did not use torture.But the four Bush-era Office of Legal Counsel memos released last week by the Obama administration’s Justice Department paint a starkly different picture. The declassified memos provided legal authorization for “harsh interrogation techniques” used by the Bush administration in the years following Sept. 11, 2001. They authorized (as listed in the Aug. 1, 2002, memo by then-Assistant Attorney General Jay Bybee) “walling … facial slap, cramped confinement, wall standing, stress positions, sleep deprivation, insects placed in a confinement box, and the waterboard.”

According to the American Civil Liberties Union, the OLC under Bush “became a facilitator for illegal government conduct, issuing dozens of memos meant to permit gross violations of domestic and international law.”

The memos authorize what the International Committee of the Red Cross called, in a leaked report, “treatment and interrogation techniques … that amounted to torture.”

These torture techniques were developed by two psychologists based in Spokane, Wash.: James Mitchell and Bruce Jessen. Their company, , provided specialized training to members of the U.S. military to deal with capture by enemy forces. The training is called SERE, for Survival, Evasion, Resistance, Escape. Mitchell and Jessen, both psychologists, were contracted by the U.S. government to train interrogators with techniques they claimed would break prisoners.

They reverse-engineered the SERE training, originally developed to help people withstand and survive torture, to train a new generation of torturers.

The memos provide gruesome details of the torture. Waterboarding was used hundreds of times on a number of prisoners. The Bybee memo includes this Kafkaesque authorization: “You would like to place [Abu] Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him.”

After President Barack Obama said there should be no prosecutions, he was received with great fanfare at the CIA this week. Mark Benjamin, the reporter who originally broke the Mitchell and Jessen story, said when I questioned him about Obama’s position: “If you look at the president’s statements and you combine them with the statements of Rahm Emanuel, the chief of staff, and Eric Holder, the attorney general … you will see that over the last couple of days the Obama administration has announced that no one, not the people who carried out the torture program or the people who designed the program or the people that authorized the program or the people who said that it was legal-even though they knew that it frankly wasn’t-none of those people will ever face charges. The attorney general has announced that … the government will pay the legal fees for anybody who is brought up on any charges anywhere in the world or has to go before Congress. They will be provided attorneys … they have been given this blanket immunity … in return for nothing.”

Senate Intelligence Committee Chair Dianne Feinstein asked Obama to hold off on ruling out prosecutions until her panel finishes an investigation during the next six months. Though Obama promises to let the torturers go, others are pursuing them. Bybee is now a federal judge. A grass-roots movement, including Common Cause and the Center for Constitutional Rights, is calling on Congress to impeach Bybee. In Spain, Judge Baltasar Garzon, who got Chilean dictator Augusto Pinochet indicted for crimes against humanity, has named Bybee and five others as targets of a prosecution.

For years, people have felt they have been hitting their heads against walls (some suffered this literally, as the memos detail). On Election Day, it looked like that wall had become a door. But that door is open only a crack. Whether it is kicked open or slammed shut is not up to the president. Though he may occupy the most powerful office on Earth, there is a force more powerful: committed people demanding change. We need a universal standard of justice. Torturers should be punished.

Denis Moynihan contributed research to this column.

Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on 700 stations in North America. She was awarded the 2008 Right Livelihood Award, dubbed the “Alternative Nobel” prize, and received the award in the Swedish Parliament in December.