Tags: camp echo, CIA torture, david hicks, geoffrey miller, gitmo, Guantanamo, guantanamo guards, habeas corpus, human rights, indefinite detention, interrogation techniques, jason leopold, military commissions, prisoner abuse, roger hollander, solitary confinement, terrorism, torture, torture memos, war on terror
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David Hicks, author of “Guantanamo: My Journey.” (Image: Random House Australia)
To mark the tenth anniversary of the opening of the Guantanamo Bay prison to house “war on terror” detainees captured after 9/11, Truthout will republish a handful of exclusive reports by Jason Leopold about the facility.
This exclsuive interview with former Guantanamo detainee David Hicks was originally published on Truthout on February 16, 2011.
David Hicks was the Australian drifter who, years before 9/11, converted to Islam, changed his name to Muhammed Dawood and ended up at training camps in Afghanistan the US government said was linked to al-Qaeda.
Hicks was picked up at a taxi stand by the Northern Alliance in November 2001 and sold to US forces for about $1,500. Hicks was detainee 002, the second person processed into Guantanamo on January 11, 2002, the day the facility opened. He is one of the small group of detainees who challenged President George W. Bush’s November 13, 2001 executive order authorizing indefinite detention, which led to a landmark 2004 Supreme Court case, Rasul v. Bush, in which the High-Court said detainees have the right to habeas corpus.
Hicks spent five-and-a-half years at Guantanamo, where he was tortured. In 2007, he agreed to plead guilty to a charge of providing material support for terrorism in order to finally be freed from Guantanamo. In October 2010, he published a memoir, “Guantanamo: My Journey.” The book is unavailable in the United States and is not available for sale on Amazon or other online booksellers to US readers.
This is his first interview Hicks gave following his release from the “least worst place” on earth.
Please click here to read the main story about David Hicks, which includes exclusive interviews with former Guantanamo guards who he interacted with, one of whom was barred from reenlistment in the Army reserves for speaking to Truthout about his experience.
Truthout: Can you describe for me what you felt, emotionally, as you were writing the book and having to relive the torture you were subjected to?
David Hicks: At times I wrote as a third person, as if I was writing a chronological research report as part of my day job. At other times I had moments of vivid clarity. I would stop typing, sit back, and stare into nothing. The smells, sounds, the feeling of actually being there came flooding back as if had been transported to the camps of Guantanamo, clearly remembering what it was like to have actually been there.
TO: Solitary confinement appears to be among the worst of all the terrible experiences prisoners faced at Guantanamo. Can you explain what it does to you in a way that Americans, with no experience of such things, can understand what such isolation, especially with no knowledge of how long it will last, does to a person?
DH: Solitary and indefinite detention are two different things and are devastating when combined. Isolation has a powerful impact on the mind, especially when coupled with incommunicado detention as in GTMO. Everything outside the four walls is quickly forgotten. With no mental stimulation the mind becomes confused and dull. That state of mind is an advantage to interrogators who manipulate every aspect of your environment. They create a new world reality. Time ceases to exist. Talking becomes difficult, so when conversations do take place, you cannot form words or think. Even when hostility is not present such as during a visit with a lawyer or International Committee of the Red Cross (ICRC) visit, coherent sentences become elusive and huge mental blanks become common, as though you are forgetting the very act of speaking. Everything you think and know is dictated by the interrogators. You become fully dependent with a childlike reliance on your captors. They pull you apart and put you back together, dismantling into smaller pieces each time, until you become something different, their creation, when eventually reassembled. Indefinite detention is draining and cruel. Only after five and a half years when I had been promised a date of release did the intense battle with insanity subside, and that I started to feel a little more normal again. I finally had some certainty and felt a glimmer of control return. I began to remember that another world existed and could once again dream about what that world used to feel like. Indefinite detention is draining because you are taken prisoner and thrown into a cage. No reason is given or any relevant information or explanation offered. There are no accusations, no court rooms or judges. Nobody informs “you will be here for X amount of time.” It’s an impossible situation to accept and every minute is spent silently asking and hoping, “this cannot last forever, I will have to be released soon‚”. But when the mind is so desperate, when you are on your last legs, you can’t let go of the thought that you could be released any moment, even if all seems lost and hopeless. In a strange way it is one of those things the mind latches onto for a source of strength, a reason to keep going: false hopes and dreams are better than nothing.
TO: What do you believe gave you the strength to survive in such terrible conditions? Have you sought medical or psychological help since returning? If so, has it helped you?
DH: I survived because I had no choice, as many of us may unfortunately experience at some time in our lives. It was a psychological battle, a serious and dangerous one. It was a constant struggle not to lose my sanity and go mad. It would have been so easy just to let go: it offered the only escape. I have attended regular counseling since being released. It has helped but the passing of time has been just as helpful. Being exposed to such a consuming environment for five and a half years leaves a stain that cannot be removed overnight. It will take longer to reverse the consequences but even so, some experiences, especially one so prolonged, can never be entirely forgotten. I shudder to think what state of mind those who are still detained in GTMO must be in, and wonder how damaged they will be upon release. If they are released. At the time of writing, the US government is seriously considering enacting indefinite detention into law. It is hard to comprehend that they will effectively sentence someone to life in prison, without ever being charged, accused of breaking a law, or not even being told why they are being held. As with medical experimentation, indefinite detention on its own is a form of torture which causes mental anguish.
TO: At what moment in your mind did you begin to realize or understand that you were being tortured?
DH: I was beaten by US forces the first time I saw them and realized straight away that torture was going to be a reality, it was very scary. As I say in my book, I could not help thinking of the saying, “like trying to get blood from a stone,” and I was afraid of becoming that stone.
TO: What do you think makes a human being torture another human being?
DH: In Guantanamo torture was driven by anger and frustration. It seemed like a mad fruitless quest to pin crimes on detainees, to extract false confessions, and produce so-called intelligence of value. The guards were desensitized and detainees de-humanized. Soldiers were not allowed to engage us in conversation. They were told to address us by number only and not by name. They were constantly drilled with propaganda about how much we supposedly hated them and wanted them dead and how much they needed to hate us. On occasion, when some groups of soldiers jogged around the camp perimeters I heard them sing lyrics such as, ‘you hate us and we hate you.’ One time in the privacy of Camp Echo a male soldier broke down when we were alone repeating, “what have I become?‚” after having arrived from an interrogation of a detainee in another camp.
TO: Can you describe for me the facial expressions of the interrogators and /or the guards as you were being abused? How did they react to your pain?
DH: Usually the guards seemed cold and indifferent. They deployed a “just doing my job‚” attitude, such as when they chained me to the floor in stress positions or made me sleep directly on a metal or concrete floor in a very cold air-conditioned room in only a pair of shorts. However some soldiers displayed discomfort and embarrassment. Usually guards were only used to restrain detainees, move them about, or help in the back ground with equipment. It was the interrogators who did the dirty work, expressing, hatred and frustration. At times soldiers did participate directly in beatings however, such the beatings I received before I arrived in GTMO (in Afghanistan, in transit, or when I was rendered to the two ships). These soldiers made a sport of it.
TO: Did any US soldier or any US official present at Guantanamo during your interrogations ever speak out about your torture or the torture of other detainees?
DH: If you mean protest during the act of torture, never. Many soldiers in private however apologized for what their government was doing to us and emphasized that not all Americans were like that or agreed with such treatment.
TO: Were you ever interrogated by anyone from the CIA?
DH: Some interrogators stated which agencies they represented, some didn’t, while others lied about who they worked for. To the best of my knowledge I was seen by the CIA, FBI, US military intelligence, MI5 from the UK, ASIO and the AFP from Australia. There were other organizations working in GTMO, some I had never heard of before.
TO: In your book you write: “These beatings and other activities were systematic and ordered from above, not the result of low- ranking MPs looking for ways to have some fun.” Did anyone ever state who from above ordered the beatings?
DH: The soldiers were very open about where their orders came from and interrogators never allowed us to forget that they controlled every aspect of our lives; whether it was torturing us, allowing us a shower, clothing, or a letter from home. Then there were examples such as when General [Geoffrey] Miller took over camp procedures in early 2003. He unleashed a new wave of interrogation techniques upon us. Each new General, and wave of interrogators who were accompanied by experts from various professions, brought newly signed orders from Department of Justice employees allowing ever harsher techniques.
TO: Have you read the torture memos written by former Justice Department attorneys John Yoo and Jay Bybee? Were you ever subjected to torture techniques described in those memos?
DH: I have read them but it was some time ago and I cannot currently recollect all that they contained. Some of the techniques I was subjected to from the memos was being chained to the floor, known as “stress positions.” Sleep deprivation was an everyday occurrence during all of the years I spent in GTMO. Noise manipulation also happened often depending on what camp I was in. They used chainsaw motors and loud music in Camp Delta. They used temperature extremes on me, which meant subjecting me to the freezing cold because they knew I have a low tolerance to the cold. Sensory deprivation, prolonged isolation and other psychological manipulation techniques were also used on me (injecting me with substances, giving me cold and sometimes green food such as eggs, putting cameras up on the ceiling). They also used techniques that exploited my fears.
TO: You write that at Camp Echo that guards were placed to observe you constantly and that they wrote notes about your every behavior. Did you ever ask these guards what their instructions were, or if they knew what their superiors did with these notes? Did they ever tell you?
DH: We were observed in all camps. Guards always carried a pen and note book having been ordered to write down everything we did, including the trivial such as what we did to pass the time and what we spoke about when other detainees were around. They even recorded how we went to the bathroom, i.e. did we shield ourselves from neighboring detainees or guards and if so, how? Nothing went un-noted. This information was combined with personality traits learnt from interrogations, ranging from how we spoke to how we responded to the so called “enhanced interrogation techniques.” The end result was the US government compiling files on each of us, including a micro level psychoanalysis. They knew our likes and dislikes, fears and weaknesses. These files were then used against us in interrogation and in daily camp life. It was about crushing and defeating us, to make us become so desperate that we would do and agree to anything to escape. Collecting this information and what they used it for was no secret and some guards explained this program when in private. In Camp Echo guards who sat outside our cages staring at us twenty four hours a day had to write what we were doing every fifteen minutes night and day. The interrogation rooms of Camp Delta had an entire wall as a one way observation glass. Behind these walls sat teams of so-called experts: Intelligence officers, behavioral scientists, psychologists; people who made conclusions upon which they decided what techniques were to be employed. By this I mean what programs the detainee would be subjected to in his cage such as sleep deprivation, noise or food ‚Äòmanipulation‚Äô. There was no shortage of ideas, resources, expertise, or personnel. A lot of effort went into these customized interrogations. Nothing was private. We were violated internally, psychologically, spiritually. They probed and tinkered in recesses so deep; parts of ourselves we are not conscious of or in touch with in our daily lives and may not even connect with and discover in our lifetimes.
TO: Did you ever meet separately with a psychologist or psychiatrist when at Guantanamo, for ostensibly psychological reasons, either a psychological test or assessment, or for supposed treatment of any sort?
DH: No, but they did approach me occasionally during the last year or so I spent in GTMO to see if I would talk and cooperate. Apart from their contributions in interrogations they were always lurking in the back ground, waiting to “help a detainee,” but to really act as another prong to interrogation. If a detainee even whispered for such medical intervention a “mental health expert,” would appear with a pocket of unknown medication and a long list of probing questions. They were not there to help, but to harm. We knew this and so I always refused to speak with them when they offered. If I did speak with them, such as the period when I eventually, after two years, had limited access to a lawyer for example, the questions would have been centered on how I intended to defend myself and any court actions I was considering. All they wanted was information, or to find a new way to defeat you.
TO: Were psychologists and/or medical professionals present at all interrogations? Were the interrogations ever stopped to check your heart rate and/or pulse?
DH: The major physical beatings I endured occurred in Afghanistan, during transportation and en-route to GTMO. During those sessions, one was around 10 hours, my vital signs were checked often. In GTMO medical personnel were not in the same room as me during actual interrogations but from my understanding they were monitoring my interrogations from behind the one way glass in Camp Delta. For other detainees, such as those being shocked or water boarded, medical personnel were present, or if drugs were being administrated during interrogation as I describe in my book when they extracted false confessions from one of the UK detainees. They were present when I was injected in the spine, but that experience is one that I don‚Äôt like to talk about.
TO: Have your attorneys tried to get a copy of your medical records?
DH: Yes, but with no luck. We gave up thinking me might be allowed to see them long ago. Even upon return to Australian where I was forced to spend the first seven months in isolated detention as part of the agreement to get out of GTMO. My family requested an independent blood test be taken on my return to Australia. They were refused without an excuse. It was nearly eight months since GTMO and about a year since being given medication before I was allowed to have my first blood test. I was informed that too much time had passed to see what I had been given.
TO: During your interrogations, did the interrogators ever ask you questions about Iraq ?
DH: No, the policy of incommunicado was strictly enforced, for years we knew absolutely nothing about the outside world. We weren’t even meant to know the time of day, let alone our location, especially any news. The first time I learnt about the war in Iraq was the end of 2003. A guard was kind enough to allow me to read his copy of FHM magazine and it contained an article about the US invasion, otherwise I would not have known. Rumors of a war in Iraq did not begin to circulate amongst the detainees until 2004 and was viewed with skepticism by most. The military did not inform us officially of the Iraq invasion until late 2006 by placing large posters of Saddam hanging from a noose around the camps with slogans splashed across the front like, “this could be you.” It was only then that detainees believed that the war had taken place.
TO: You have written eloquently of your terrible experience with what you say was medical experimentation, calling it the worst and darkest of your experiences there. Have you talked with any other detainees about whether they had similar experiences? How do you think about it now?
DH: When I was injected in the back of the neck I was being held in isolation, so I was unable to discuss what had happened with other detainees. A year passed before I was eventually able to see and communicate with fellow detainees, and I am unable to remember today if I discussed that particular personal experience with them. We did discuss medical experimentation in general however. A detainee with UK citizenship described being injected daily, resulting in one of his testicles becoming swollen and racked with pain. Along with these daily injections he was subjected to mind games by interrogators, medical personnel, and guards whom worked as a team. Under these conditions they were able to extract written false confessions from him. How I experienced the injection at the base of my neck is described in detail in my book. In a nutshell, I felt my soul had been violated. That is just one experience I had with medication. There were many pills and injections, plus constant blood tests over the years. Everybody regardless of their citizenship should acknowledge that medical experimentation, whether on human beings or animals, is unacceptable. As with animals, we were held as prisoners when these procedures were forced upon us against our will. And as with animals, we were voiceless.
TO: Did any interrogator or other official working for the US government ever use the word “torture” or “experiment” as you were being interrogated?
DH: I don’t remember the word torture being used but there were many ways to imply it. After a torture session for example an interrogator would just say, “the treatment you have recently endured can always be repeated,” and threats were often made referring to past treatment or what was happening to other detainees. Guards often alluded to GTMO as being a big laboratory where we were subjected to their government’s well-honed techniques. I remember in the early days while being held aboard a US ship when a soldier said, “be strong man no matter what they do to you, just keep your head in God man,”. It didn’t leave me with much confidence.
TO: Did you ever sign any document stating that you consented to the medications/injections you received? Did anyone ever ask you to sign such a document?
DH: I had two surgeries while in GTMO. One was for a double hernia, while the other was to remove painful golf ball size lumps on my chest. The cause of the lumps or what they were was never explained to me but research since my release indicates that it was either the mediations I was forced to take or the extreme stress levels may have been responsible. On the two occasions I was operated on I was asked to sign a consent form, which I did. However my permission was not sought nor had I any choice when it came to being forced fed tablets, or the numerous injections that we were all given. Many blood tests were also taken consistently over the years I was detained.
TO: How typical was it, do you think, that interrogators attempted to get prisoners to become agents for their government?
DH: Interrogators attempted to bribe detainees with food, bed sheets, toilet paper and other “luxuries‚” to become spies and to give information about other detainees. On occasion some detainees in GTMO became so drained and broken that they would succumb to the temptation. Interrogators tried everything to make detainees “confess,” including being asked to lie via imagination or simply to agree to an interrogator’s theories. Interrogators became desperate with the passing of time to find and pin actual crimes on detainees, and paper trails have shown they were willing to manipulate evidence in their favor. There was one time in 2003 when we were all asked if we would work for the US government performing secret operations off the island, somewhere abroad. Nearly every detainee laughed at this question and word quickly spread so we knew we weren’t alone. Apparently the proposition was a part of their profiling system. Interrogators worked around the clock to break us. Once broken, detainees were asked to agree to anything by interrogators, to repeat after them, to sign confessions, to be false witnesses, or to sow discord amongst detainees.
TO: When did you become aware that journalists were writing about torture at Guantanamo and at prisons in Iraq and Afghanistan?
DH: Not until the photos from Abu Ghraib in Iraq had become public. I found the public debate interesting. At first it was, “are they being tortured or not.” Then once torture was confirmed, the debate evolved to, “is it acceptable, is it justified, is it legal?” I am surprised by how many people still try to justify torture and support it as government policy, as an extra “necessary” tool to tackle terrorism.
TO: Do you know if any prisoners ever died at Guantanamo while you were there?
DH: Four died during my time in Guantanamo.
TO: Have you heard about the three prisoners who allegedly committed suicide in June 2006? Do you know anything about them? Do you believe they committed suicide?
DH: Suicide is possible in that situation, but evidence has emerged in various forms and from various sources suggesting foul play. Some witnesses are soldiers and have said that they believe that the detainees were “accidentally‚” killed during an interrogation at a secret camp on the island called “Camp No‚” as in no, it doesn’t exist. It seems they pushed their dangerous techniques too far. The fact that the organs were removed from the bodies so that an independent autopsy could not be carried out raises more questions than answers. This topic is covered in detail in my book with researched references pointing to foul play.
TO: Did you ever interact with Shaker Aamer, the last British resident still held at Guantanamo?
DH: I saw him on the odd occasion over the years and exchanged greetings, otherwise I never had the chance to talk or interact with him. The military has often kept him separated from other detainees and I believe subjected him to horrific treatment. When I left GTMO in early 2007 I knew that he was being held in isolation in Camp Echo because that is where I was. Whenever I saw him he always looked so skinny, weak, and tired. I cannot understand why they continue to hold him and the nearly two hundred men still detained there.
TO: Were dogs ever used to invoke fear in you? You describe the use of chainsaws in your book. What was the purpose of this?
DH: Not personally, dogs were mainly used against detainees known to have a fear of them. Our individual fears and weaknesses were used against us as customized interrogations. The chainsaw engines kept at full revs were used as part of their noise manipulation program. It prevented detainees from communicating with each other, prevented sleep, and basically drove us mad.
TO: Can you tell me whether you have any flashbacks and if so what triggers it? When that happens, what do you start to feel?
DH: Day time flashbacks consist of those moments of vivid clarity as I described previously, but it is the dreams that are the worst. I see myself having to begin the long process of imprisonment again accompanied with vivid feelings of hopelessness and no knowledge of the future or how long it will last. The other dreams consist of gruesome medical experimentations too horrible to describe. Losing my personality, my identity, memories and self is much more frightening to me than any physical harm. It is these dreams that are the most common and terrifying.
TO: Do you remember former Guantanamo guards Brandon Neely and Albert Melise?
DH: Unfortunately, I don’t remember Neely from Camp X-ray, it was a very confusing time for me. We established contact last year, but I became aware of Neely some time ago when he flew to the UK and publicly met some of the former UK detainees. He apologized for what he and his government had done. He is a brave man and I admire his courage and moral values so it was an honor to speak with him. I remember the polite and respectful soldiers, and the bad, but especially the good men and women I spent time with privately, such as in Camp Echo. One of those good men is Albert Melise who made contact with me to apologize, to offer help, and to see if I was alright. I remember him well because he did what he could in that controlled high security environment to help slow the deterioration of my sanity for the few months I spent with him. He is another brave man that I respect and admire, to add his voice to the growing number of witnesses that are coming forward to publicly share the truth and expose that shameful time in our history. Melise did a lot to help me in those dark times, and it was a joy to hear his voice that first time as a free man. I hope to gather enough funds so I can fly these two men to Australia to thank them personally and show my gratitude for their friendship and trust. I’d like to show them my hospitality and my country, and to show them how much I appreciate their past kindness and current bravery. Neely and Melise were not alone in covertly showing humanity to myself and other detainees whenever they had the opportunity. A handshake, an apology (though that responsibility shouldn’t have to have been shouldered by them), even a simple hello and a smile goes a long way in an environment drowning in hostility and hatred. There were other soldiers who helped me in their own way and apologized for what was happening when no one else was around. As bad as that place was, and some of the people who worked there, they were all human and there is good in all of us. A good percentage of the soldiers were very young and most were only reservists who had never expected to be deployed. It was always interesting to watch the shock on their faces when they first entered the camps, a scene they had often seen only in old war movies and the realization that their government “did torture.” Some of these poor souls suffered greatly as they experienced the “other” America and struggled to carry out questionable orders. It is not just the tortured who suffer.
TO: What do you think should happen, if anything, to the individuals who tortured you and the government officials who sanctioned it?
DH: As for the soldiers I don’t think “following orders” is an excuse. Interrogators should be disciplined and charged if found to have acted illegally. All medical personnel who participated in interrogations, whether doctors, nurses, corpsman, psychologists and psychiatrists should be investigated and banned from practicing, even if they only gave advice or kept silent if aware of what was happening. I also think that the highest ranking military officials, politicians, and lawyers who created and supported the system need to go in front of an international court.
But these are not the only issues. GTMO should be closed, torture abolished, military commissions scrapped, renditions ceased, indefinite detention should be a thing of the past, and people (including children) should no longer be made to “disappear” into unknown black site prisons.
Justice is coming slowly however. Former Guantanamo soldiers, translators, FBI and other US employees, even prosecutors, have gone public to expose the truth of GTMO and many documents have made it into the public realm. Spain and Germany had begun the process of prosecuting former president Bush and members of his regime but after being pressured by the US they dropped the proceedings. The latest country said to be exploring the possibility of prosecuting US officials is Poland for the US using its soil in its rendition program. Last year Italy convicted 26 CIA agents in absentia for their involvement in kidnapping an Italian citizen and then dumping him in the woods near his home in the middle of the night a year later. The former UK detainees were recently paid just over a million pounds each in compensation and the Australian government has just paid compensation to the other Australian who was held in GTMO after being tortured in Egypt. In both instances these men were required to drop their court cases against the state. Wikileaks has been another vehicle shedding light on what took place at GTMO and beyond, exposing those responsible for illegal acts. Sometime this year about thirteen hundred diplomatic cables are to be released concerning Australia. I have been told to look out for information concerning my case. Especially cables that talk about the treatment I was receiving, and who was involved with the political interference and creation of the plea deal that I was forced to sign if I was ever to come home. I will be watching with great interest once all that information comes to light.
TO: Is there anything the US government or the Australian government told you that you can never speak about?
There was a one year gag order upon my release and I had to sign a plea agreement that said I had never been mistreated by US officials or their employees while in US detention. I am also not allowed to challenge or “collaterally attack‚” my conviction, seek compensation or other remedies, or sue anyone for my illegal imprisonment and treatment. I have been advised that no court would uphold the plea agreement.
TO: There aren’t many Caucasians at Guantanamo? How were you treated by the other detainees? And now that you’ve been released, how have you been treated by the public?
DH: There weren’t many Caucasians at GTMO but I wasn’t the only one. Before the release of detainees began there must have been close to forty European citizens spread between eight or nine western European countries. Usually most detainees treated each other the same regardless of their geo-political or cultural background. The Australian public has been wonderful; very welcoming, glad to see me home and very helpful. I often have people approach me to say hello.
TO: How did you and your wife Aloysia meet?
DH: Aloysia has been involved in human rights activism for years and in her efforts for social justice became involved in the Australian campaign to see me released from Guantanamo bay. Over the years she came to know my dad quite well, and he played a part in our relationship.
TO: You have a long life ahead of you. What would you like to accomplish? What are your hopes and dreams?
DH: When I was released I wondered if refugees newly arrived in a country felt similar. I had to begin a new life from the beginning, from collecting a set of identification papers to such privileges as a vehicle license and obtaining a Medicare card. Despite long term plans such as owning a home I have been taking a day at a time, receiving treatment for physical and mental injuries, finding employment and working, and when I get the chance or in the mood fishing or socializing. Writing my book for two years took up a lot of my time, as does keeping abreast of all the continuous developments regarding GTMO, the so-called war on terror and its related policies, and those whose lives (detained or not) they continue to effect, including my own. Life is very busy for me. Finding the love of my life has been my biggest accomplishment, of course! And then writing my book. Otherwise there is a lot of work left to do and in the years to come I will continue to rebuild my life, seek normality, and to live in peace with the hardships of the past far behind me.
EXCLUSIVE: Controversial Drug Given to All Guantanamo Detainees Akin to “Pharmacologic Waterboarding” December 4, 2010Posted by rogerhollander in Human Rights, Torture.
Tags: detainees, geneva conventions, Guantanamo, jason leopold, jeffrey kaye, malaria, mefloquine, nuremberg, roger hollander, torture
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Wednesday 01 December 2010
The Defense Department forced all “war on terror” detainees at the Guantanamo Bay prison to take a high dosage of a controversial antimalarial drug, mefloquine, an act that an Army public health physician called “pharmacologic waterboarding.”
The US military administered the drug despite Pentagon knowledge that mefloquine caused severe neuropsychiatric side effects, including suicidal thoughts, hallucinations and anxiety. The drug was used on the prisoners whether they had malaria or not.
Interviews conducted over the past two months with tropical disease experts and a review of Defense Department documents and peer-reviewed journals show there were no preexisting cases where mefloquine was ever prescribed for mass presumptive treatment of malaria.
The revelation, which has not been previously reported, was buried in documents publicly released by the Defense Department (DoD) two years ago as part of the government’s investigation into the June 2006 deaths of three Guantanamo detainees.
Army Staff Sgt. Joe Hickman, who was stationed at Guantanamo at the time of the suicides in 2006, and has presented evidence that demonstrates the three detainees could not have died by hanging themselves, noticed in the detainees’ medical files that they were given mefloquine. Hickman has been investigating the circumstances behind the detainees’ deaths for nearly four years.
All detainees arriving at Guantanamo in January 2002 were first given a treatment dosage of 1,250 mg of mefloquine, before laboratory tests were conducted to determine if they actually had the disease, according to a section of the DoD documents entitled “Standard Inprocessing Orders For Detainees.” The 1,250 mg dosage is what would be given if the detainees actually had malaria. That dosage is five times higher than the prophylactic dose given to individauls to prevent the disease.
Maj. Remington Nevin, an Army public health physician, who formerly worked at the Armed Forces Health Surveillance Center and has written extensively about mefloquine, said in an interview the use of mefloquine “in this manner … is, at best, an egregious malpractice.”
The government has exposed detainees “to unacceptably high risks of potentially severe neuropsychiatric side effects, including seizures, intense vertigo, hallucinations, paranoid delusions, aggression, panic, anxiety, severe insomnia, and thoughts of suicide,” said Nevin, who was not speaking in an official capacity, but offering opinions as a board-certified, preventive medicine physician. “These side effects could be as severe as those intended through the application of ‘enhanced interrogation techniques.’”
Mefloquine is also known by its brand name Lariam. It was researched by the US Army in the 1970s and licensed by the Food and Drug Administration in 1989. Since its introduction, it has been directly linked to serious adverse effects, including depression, anxiety, panic attacks, confusion, hallucinations, bizarre dreams, nausea, vomiting, sores and homicidal and suicidal thoughts. It belongs to a class of drugs known as quinolines, which were part of a 1956 human experiment study to investigate “toxic cerebral states,” as part of the CIA’s MKULTRA mind-control program.
The Army tapped the Walter Reed Army Institute of Research (WRAIR) to develop mefloquine and it was later licensed to the Swiss pharmaceutical company F. Hoffman-La Roche. The first human trials of mefloquine were conducted in the mid-1970s on prisoners, who were deliberately inoculated with malaria at Stateville Correctional prison near Joliet, Illinois, the site of controversial antimalarial experimentation in the early 1940s.
The drug was administered to Guantanamo detainees without regard for their medical or psychological history, despite its considerable risk of exacerbating pre-existing conditions. Mefloquine is also known to have serious side effects among individuals under treatment for depression or other serious mental health disorders, which numerous detainees were said to have been treated for, according to their attorneys and published reports.
Dr. G. Richard Olds, a tropical disease specialist and the founding dean of the Medical School at the University of California at Riverside, said, in his “professional opinion there is no medical justification for giving a massive dose of mefloquine to an asymptomatic individual.”
“I also do not see the medical benefit of treating a person in Cuba with a prophylactic dose of mefloquine,” Olds said. Mefloquine is “a fat soluble, and as a result, it does build up in the body and has a very long half-life.This is important since a massive dose of this drug is not easily corrected and the ‘side effects’ of the medication could last for weeks or months.”
In 2002, when the prison was established and mefloquine first administered, there were dozens of suicide attempts at Guantanamo. That same year, the DoD stopped reporting attempted suicides.
By February 2002, there were at least 459 detainees imprisoned at Guantanamo. In March of that year, according to the book “Saving Grace at Guantanamo Bay: A Memoir of a Citizen Warrior” by Montgomery Granger, “the situation” at the prison began “deteriorating rapidly.”
“There is more and more psychosis becoming evident in detainees …,” wrote Granger, an Army Reserve major and medic who was stationed at Guantanamo in 2002. “We already have probably a dozen or so detainees who are psychiatric cases. The number is growing.”
“Presumptively Treating” Malaria
Though malaria is nonexistent in Cuba, DoD spokeswoman Maj. Tanya Bradsher told Truthout that the US government was concerned that the disease would be reintroduced into the country as detainees were transferred to the prison facility in January 2002.
A “decision was made,” Bradsher said in an email, to “presumptively treat each arriving Guantanamo detainee for malaria to prevent the possibility of having mosquito-borne [sic] spread from an infected individual to uninfected individuals in the Guantanamo population, the guard force, the population at the Naval base or the broader Cuban population.”
But Granger wrote in his book that a Navy entomologist was present at Guantanamo in January and February 2002 and during that time only identified insects that were nuisances and did not identify any insects that were carriers of a disease, such as malaria.
Nevertheless, Bradsher said the “mefloquine dosage [given to detainees] was entirely for public health purposes … and not for any other purpose” and “is completely appropriate.”
“The risks and benefits to the health of the detainees were central considerations,” she added.
A September 13, 2002, DoD memo governing the operational use of mefloquine said, “Malaria is not a threat in Guantanamo Bay.” Indeed, there have only been two to three reported cases of malaria at Guantanamo.
The DoD memo, signed by Assistant Secretary of Defense for Health Affairs William Winkenwerder, was sent to then-Rep. John McHugh, the Republican chairman of the House Veterans Affairs Subcommittee on Military Personnel. McHugh is now Secretary of the Army.
A Senate staff member told Truthout the Senate Armed Services Committee was never briefed about malaria concerns at Guantanamo nor was the committee made aware of “any issue related to the use of mefloquine or any other anti-malarial drug” related to “the treatment of detainees.”
When questions were raised at a February 19, 2002 meeting of the Armed Forces Epidemiological Board (AFEB) about what measures the military was taking to address malaria concerns at Guantanamo, Navy Capt. Alan J. Yund, the liaison officer to the AFEB, did not disclose that mefloquine was being administered to detainees as a form of presumptive treatment and indicated that infected detainees who may have had the disease would be treated on a case-by-case basis.
Yund also said detainees were given a different anti-malarial drug known as primaquine and noted that “informed consent” was “absolutely practiced” prior to administering drugs, an assertion that contradicts claims made by numerous detainees who said they were forced to take drugs even if they protested. Yund did not return calls for comment.
Bradsher declined to respond to a follow-up question about who made the decision to presumptively treat detainees with mefloquine.
An April 16, 2002, meeting of the Interagency Working Group for Antimalarial Chemotherapy, which DoD, along with other federal government agencies, is a part of, was specifically dedicated to investigating mefloquine’s use and the drug’s side effects. The group concluded that study designs on mefloquine up to that point were flawed or biased and criticized DoD medical policy for disregarding scientific fact and basing itself more on “sensational or best marketed information.”
The Working Group called for additional research, and warned, “other treatment regimes should be carefully considered before mefloquine is used at the doses required for treatment.”
Still, despite the red flags that pointed to mefloquine as a high-risk drug, the DoD’s mefloquine program proceeded.
In fact, a June 2004 set of guidelines issued by the Centers for Disease Control and Prevention (CDC) says mefloquine should only be used when other standard drugs were not available, as it “is associated with a higher rate of severe neuropsychiatric reactions when used at treatment doses.”
According to the CDC, “‘presumptive treatment’ without the benefit of laboratory confirmation should be reserved for extreme circumstances (strong clinical suspicion, severe disease, impossibility of obtaining prompt laboratory confirmation).”
A CDC spokesman refused to comment about the “presumptive treatment” of malaria at Guantanamo and referred questions to the DoD.
Nevin said, if “mass presumptive treatment has been given consistently, many dozens of detainees, possibly hundreds, would almost certainly have suffered such disabling adverse events.”
“It appears that for years, senior Defense health leaders have condoned the medically indefensible practice of using high doses of mefloquine ostensibly for mass presumptive treatment of malaria among detainees from the Middle East and Asia lacking any evidence of disease,” Nevin said. “This is a use for which there is no precedent in the medical literature and which is specifically discouraged among refugees by malaria experts at the Centers for Disease Control.”
Even proponents of limited mefloquine usage are seriously questioning the logic behind the DoD’s actions. Professor James McCarthy, chair of the Infectious Diseases Division of the Queensland Institute of Medicine in Australia, who is an advocate of the safe use of mefloquine under proper safeguards, and takes it himself when traveling, told Truthout he was unaware of the use of mefloquine for mass presumptive treatment as described by the DoD, but could imagine it under certain circumstances.
However, when informed that lab tests were available and the detainees were screened for the blood product G6PD, used to determine the suitability of certain antimalarial drugs, McCarthy found the DoD’s use of mefloquine at Guantanamo difficult to understand and “hard to support on pure clinical grounds as an antimalarial.”
Treatment, Torture or an Experiment?
Another striking point about the DoD’s decision to presumptively treat mostly Muslim detainees with mefloquine beginning in 2002 is that it is the exact opposite of how the DoD responded to malaria concerns among the Haitian refugees who were held at Guantanamo a decade earlier.
Between 1991 and 1992, more than 14,000 Haitian refugees were held in temporary camps set up at Guantanamo. A large number of Haitian refugees – 235 during a four-month period – were diagnosed with malaria. But instead of presumptively treating the refugee population at Guantanamo, the DoD conducted laboratory tests first and only the individuals who were found to be malaria carriers were administered chloroquine.
Another example of how the DoD approached malaria treatment differently for other subjects is in the case of Army Rangers who returned from malarial areas of Afghanistan between June and September 2002 and were infected with the disease at an attack rate of 52.4 cases per 1,000 soldiers.
However, the Rangers did not receive mass presumptive treatment of mefloquine. They were given other standard drugs after laboratory tests, according to documents obtained by Truthout.
Nevin said the DoD’s treatment of Haitian refugees represented “a situation that arguably presented a much higher risk of disease and secondary transmission, but one which US medical experts stated at the time could be safely managed through more conservative and focused measures.”
Why did the government use the “conservative and focused” approach in treating Haitian refugees and the Army rangers, but then revert to presumptive mefloquine treatment in the case of the Guantanamo detainees, who – a month after the prison facility opened in January 2002 – were stripped of their protections under the Geneva Conventions?
According to Sean Camoni, a Seton Hall University law school research fellow, “there is no legitimate medical purpose for treating malaria in this way” and the drug’s severe side effects may actually have been the DoD’s intended impact in calling for the drug’s usage.
Camoni and several other Seton Hall law school students have been working on a report about mefloquine use on Guantanamo detainees. Their work was conducted independently of Truthout’s investigation.
A copy of the Seton Hall report, “Drug Abuse? An Exploration of the Government’s Use of Mefloquine at Guantanamo,” says mefloquine’s extreme side effects may have violated a provision in the antitorture statute related to the use of “mind altering substances or other procedures” that “profoundly disrupts the senses or the personality.”
Legal memos prepared in August 2002 by former DoD attorneys Jay Bybee and John Yoo for the CIA’s torture program permitted the use of drugs for interrogations. The authority was also contained in a legal memo Yoo prepared for the DoD less than a year later after Secretary of Defense Donald Rumsfeld convened a working group to address “policy considerations with respect to the choice of interrogation techniques.”
In September, Truthout reported that the DoD’s inspector general (IG) conducted an investigation into allegations that detainees in custody of the US military were drugged. The IG’s report, which remains classified, was completed a year ago and was shared with the Senate Armed Services Committee.
Kathleen Long, a spokeswoman for the Armed Services Committee, told Truthout at the time that the IG report did not substantiate allegations of drugging of prisoners for the “purposes of interrogation.”
The medical files for detainee 693 released in 2008 shows that, two weeks after he first started taking mefloquine in June 2002, he was interviewed by Guantanamo medical personnel and reported he was suffering from nightmares, hallucinations, anxiety auditory and visual hallucinations, anxiety, sleep loss and suicidal thoughts.
The detainee said he had previously been treated for anxiety and had a family history of mental illness. He was diagnosed with adjustment disorder, according to the DoD documents. Guantanamo medical staff who interviewed the detainee did not state that he may have been experiencing mefloquine-related side effects in an evaluation of his condition.
Mark Denbeaux, the director of the Seton Hall Law Center for Policy and Research, who looked into the 2006 deaths of the three Guantanamo detainees, said in an interview “almost every remaining question here would be solved if the [detainees'] full medical records were released.”
The government has refused to release Guantanamo detainees’ medical records, citing privacy concerns in some cases, and assertions that they are “protected” or “classified” in other instances. The few medical records that have been released have been heavily redacted.
“A crucial issue is dosage” Denbeaux said. “Giving detainees toxic doses of mefloquine has mind-altering consequences that may be permanent. Without access to medical records, which the government refuses to release, the use of mefloquine in this manner appears to be grotesque malpractice at best, if not human experimentation or ‘enhanced interrogation.’ The question is where are the doctors who approved this practice and where are the medical records?”
Bradsher did not respond to questions about whether the government kept data about the adverse effects mefloquine had on detainees.
An absolute prohibition against experiments on prisoners of war is contained in the Geneva Conventions, but President George W. Bush stripped war on terror detainees of those protections. Some of the “enhanced interrogation techniques” also had an experimental quality.
At the same time detainees were given high doses of mefloquine, Deputy Secretary of Defense Paul Wolfowitz issued a directive changing the rules on human subject protections for DoD experiments, allowing for a waiver of informed consent when necessary for developing a “medical product” for the armed services. Bush also granted unprecedented authority to the secretary of Health and Human Services to classify information as secret.
Briefings on Side Effects
As the DoD was administering mefloquine to Guantanamo prisoners, senior Pentagon officials were being briefed about the drug’s dangerous side effects. During one such briefing, questions arose about what steps the military was taking to address malaria concerns among detainees sent to Guantanamo.
Internal documents from Roche, obtained by UPI in 2002, indicated that the pharmaceutical company had been tracking suicidal reactions to Lariam going back to the early 1990s.
In September 2002, Roche sent a letter to physicians and pharmacists stating that the company changed its warning labels for mefloquine.
Roche further said in one of two new warning paragraphs that some of the symptoms associated with mefloquine use included suicidal thoughts and suicide and also “may cause psychiatric symptoms in a number of patients, ranging from anxiety, paranoia, and depression to hallucination and psychotic behavior,” which “have been reported to continue long after mefloquine has been stopped.”
Cmdr. William Manofsky, who is retired from the US Navy and currently on disability due to post-traumatic stress disorder and side effects from mefloquine, said those are some of the symptoms he initially suffered from after taking the drug for several months beginning in November 2002 after he was deployed to the Middle East to work on two Naval projects.
In March 2003, “I became violently ill during a night live-fire exercise with the [Navy] SEALS,” Manofsky said. “I felt like I was air sick. All the flashing lights from the tracers and rockets … targeting device made me really sick. I threw up for an hour straight before being medevac’d back to the Special Forces compound where I had my first ever panic attack.”
For three years, Manofsky said he had to walk with a cane due to a loss of equilibrium. Numerous other accounts like Manofsky’s can be found on the web site lariaminfo.org.
In 2008, Dr. Nevin published a study detailing a high prevalence of mental health contraindications to the safe use of mefloquine in soldiers deployed to Afghanistan. Responding in part to concerns raised by the mefloquine-associated suicide of Army Spc. Juan Torres, internal Army presentations confirmed that the drug had been widely misprescribed to soldiers with contraindications, including to many on antidepressants.
A formal policy memo in February 2009 from Army Surgeon General Eric Schoomaker removed mefloquine as a “first-line” agent, and changed the policy so that mefloquine would not be prescribed to Army personnel unless they had contraindications to the preferred drug, the antibiotic doxycycline. Nor could mefloquine be prescribed to any personnel with a history of traumatic brain injury or mental illness.
By September 2009, the policy was extended throughout the DoD.
New prisoners are no longer arriving at Guantanamo and the prison population has been in decline in recent years as detainees are released or transferred to other countries. Currently, the detainee population at Guantanamo is a reported 174.
But Nevin said the justification the Pentagon offered for using mefloquine to presumptively treat detainees transferred to the prison beginning in 2002 “betrays a profound ignorance of basic principals of tropical medicine and suggests extremely poor, and arguably incompetent, medical oversight that demands further investigation.”
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
Tags: adel hassan hamad, al-Qaeda, bagram, cheney, Colin Powell, Criminal Justice, detainees, enemy combatant, Guantanamo, habeas corpus, International law, jason leopold, lawrence wilkerson, rendition, roger hollander, rumsfeld, Taliban, torture, war on terror
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Friday 09 April 2010
Former Secretary of Defense Donald Rumsfeld once declared that individuals captured by the US military in the aftermath of 9/11 and shipped off to the Guantanamo Bay prison facility represented the “worst of the worst.”
During a radio interview in June 2005, Rumsfeld said the detainees at Guantanamo, “all of whom were captured on a battlefield,” are “terrorists, trainers, bomb makers, recruiters, financiers, [Osama Bin Laden's] body guards, would-be suicide bombers, probably the 20th hijacker, 9/11 hijacker.”
But Rumsfeld knowingly lied, according to a former top Bush administration official.
And so did then Vice President Dick Cheney when he said, also in 2002 and in dozens of public statements thereafter, that Guantanamo prisoners “are the worst of a very bad lot” and “dangerous” and “devoted to killing millions of Americans, innocent Americans, if they can, and they are perfectly prepared to die in the effort.”
Now, in a sworn declaration obtained exclusively by Truthout, Col. Lawrence Wilkerson, who was chief of staff to former Secretary of State Colin Powell during George W. Bush’s first term in office, said Bush, Cheney, and Rumsfeld knew the “vast majority” of prisoners captured in the so-called War on Terror were innocent and the administration refused to set them free once those facts were established because of the political repercussions that would have ensued.
“By late August 2002, I found that of the initial 742 detainees that had arrived at Guantánamo, the majority of them had never seen a US soldier in the process of their initial detention and their captivity had not been subjected to any meaningful review,” Wilkerson’s declaration says. “Secretary Powell was also trying to bring pressure to bear regarding a number of specific detentions because children as young as 12 and 13 and elderly as old as 92 or 93 had been shipped to Guantánamo. By that time, I also understood that the deliberate choice to send detainees to Guantánamo was an attempt to place them outside the jurisdiction of the US legal system.”
He added that it became “more and more clear many of the men were innocent, or at a minimum their guilt was impossible to determine let alone prove in any court of law, civilian or military.”
For Cheney and Rumsfeld, and “others,” Wilkerson said, “the primary issue was to gain more intelligence as quickly as possible, both on Al Qaeda and its current and future plans and operations but increasingly also, in 2002-2003, on contacts between Al Qaeda and Saddam Hussein’s intelligence and secret police forces in Iraq.”
“Their view was that innocent people languishing in Guantánamo for years was justified by the broader war on terror and the capture of the small number of terrorists who were responsible for the September 11 attacks, or other acts of terrorism,” Wilkerson added. “Moreover, their detention was deemed acceptable if it led to a more complete and satisfactory intelligence picture with regard to Iraq, thus justifying the Administration’s plans for war with that country.”
Documents have been released over the past year that showed how in 2002 several high-value detainees were tortured and forced to make statements that linked Iraq to al-Qaeda and 9/11, which the Bush administration cited as intelligence to support its invasion of the country in March 2003. But the confessions were utterly false.
Wilkerson’s declaration was made in support of a lawsuit filed by Adel Hassan Hamad, a 52-year-old former Guantanamo detainee who is suing Defense Secretary Robert Gates, former Joint Chief of Staff Richard Myers, and a slew of other Bush administration officials for wrongfully imprisoning and torturing him.
Hamad was arrested in his apartment in Pakistan in July 2002, rendered to Bagram Air Base in Afghanistan for three months, where he says he was tortured, and then transferred to Guantanamo, where he was interrogated daily and subjected to even more torture by US military personnel.
At Bagram, according to Hamad’s lawsuit, “dogs were set upon [him] while watching United States military personnel laughed and mocked him.” Moreover, he was forced to stand for three days without “sleep or food” and eventually collapsed. He was then sent to a hospital where it took him two weeks to recover.
“Mr. Hamad was not given notice of the basis for his detention until more than two years after first being detained, when a Combatant Status Review Tribunal (CSRT) was convened in November 2004,” according to the lawsuit, filed in US District Court for the Western District of Washington at Seattle earlier this week. “Not until March 2005, nearly three full years after initially being detained, was Mr. Hamad officially labeled an ‘enemy Combatant’ by the flawed CSRT process,” according to the lawsuit.
“However, this determination drew a rare dissenting opinion that acknowledged his enemy combatant status determination was unwarranted and, as such, would have ‘unconscionable results,’” the lawsuit states. “The basis for Mr. Hamad’s enemy combatant determination was simply because of his association as an employee of two organizations for whom he had done humanitarian and charity work (one of which he had left years before), and nothing more.
“In fact, a second CSRT was ordered for Mr. Hamad in November of 2007, one month before he was ultimately released to the Sudan. This was unusual, and indicates that the government recognized that the initial CSRT determination of Mr. Hamad was not accurate.”
While Hamad was detained, his wife gave birth to a daughter who died some time later because the family did not have any money to pay for medical care. He has five other children.
Since he has been released, Hamad says he suffers from emotional, physical and psychological injuries and he is seeking undisclosed compensatory and punitive damages. Similar lawsuits against former Bush administration officials, however, have been dismissed in other jurisidictions.
Wilkerson said he “made a personal choice to come forward and discuss the abuses that occurred because knowledge that I served in an Administration that tortured and abused those it detained at the facilities at Guantánamo Bay and elsewhere and indefinitely detained the innocent for political reasons has marked a low point in my professional career and I wish to make the record clear on what occurred.”
“I am also extremely concerned that the Armed Forces of the United States, where I spent 31 years of my professional life, were deeply involved in these tragic mistakes. I am willing to testify in person regarding the content of this declaration, should that be necessary,” he added.
Gwynne Skinner, an assistant professor of clinical law at Willamette University College of Law in Salem, Oregon and a member of Hamad’s legal team, said WIlkerson’s declaration was originally intended to be filed in support of Hamad’s habeas corpus case, which was still pending in federal court in Washington, DC, along with more than 100 others, even though Hamad and the other former Guantanamo prisoners have already been released.
But US District Court Judge Thomas Hogan dismissed the cases, stating the former prisoners’ transfers rendered their habeas lawsuits moot. Attorneys for the detainees were upset because they had hoped the court would make a decision that would ultimately clear the peitioners’ names, lift travel restrictions, and the stigma that comes from being detained at Guantanamo.
Still, Skinner said Wilkerson’s declaration is signficant because it marks the first time a Bush administration official is willing to state, under oath, that Bush, Cheney, Rumsfeld and others knew many of the prisoners were innocent when they were sent to Guantanamo.
Wilkerson said detainees like Hamad were of little concern to Cheney.
The Office of Vice President Dick Cheney “had absolutely no concern that the vast majority of Guantanamo detainees were innocent, or that there was a lack of any useable evidence for the great majority of them,” Wilkerson said in the 9-page declaration. Cheney’s position, Wilkerson asserted, “could be summed up as ‘the end justifies the means.’”
Cheney, and his daughter Liz, have been vocal critics of President Obama’s efforts to shut down Guantanamo. Obama signed an executive order immediately after he was sworn into office and set a one-year deadline to close the facility. But he missed the date, due in part, to Congress’ refusal to earmark funds that would have allowed the administration to close the prison and move some detainees to a supermax prison in Illinois.
Cheney said last year that the only alternative the Bush administration had to setting up Guantanamo was to kill the prisoners detained there.
“If you don’t have a place where you can hold these people, the only other option is to kill them, and we don’t operate that way,” Cheney said.
It is not news that the majority of the initial 742 prisoners who were detained at Guantanamo were innocent of the crimes that they were accused of.
Indeed, in February of 2006, the National Journal reviewed the case files of 132 prisoners who filed habeas corpus petitions and the redacted CSRT transcripts of 314 others and concluded that “most of the ‘enemy combatants’ held at Guantanamo… are simply not the worst of the worst of the terrorist world” as Cheney, Rumsfeld and Bush had claimed.
“Many of them are not accused of hostilities against the United States or its allies,” according to an investigative report published by the National Journal. “Most, when captured, were innocent of any terrorist activity, were Taliban foot soldiers at worst, and were often far less than that. And some, perhaps many, are guilty only of being foreigners in Afghanistan or Pakistan at the wrong time. And much of the evidence — even the classified evidence — gathered by the Defense Department against these men is flimsy, second-, third-, fourth- or 12th-hand. It’s based largely on admissions by the detainees themselves or on coerced, or worse, interrogations of their fellow inmates, some of whom have been proved to be liars.”
The Journal noted that a common thread among many of the detainees is that a majority of them “were not caught by American soldiers on the battlefield. They came into American custody from third parties, mostly from Pakistan, some after targeted raids there, most after a dragnet for Arabs after 9/11.”
That’s a point Wilkerson made in his declaration and said it likely applied to Hamad’s case as well.
“With respect to the assertions by Mr. Hamad that he was wrongfully seized and detained, it became apparent to me as early as August 2002, and probably earlier to other State Department personnel who were focused on these issues, that many of the prisoners detained at Guantanamo had been taken into custody without regard to whether they were truly enemy combatants, or in fact whether many of them were enemies at all,” Wilkerson said in his declaration. “I soon realized from my conversations with military colleagues as well as foreign service officers in the field that many of the detainees were, in fact, victims of incompetent battlefield vetting.
“There was no meaningful way to determine whether they were terrorists, Taliban, or simply innocent civilians picked up on a very confused battlefield or in the territory of another state such as Pakistan. The vetting problem, in my opinion, was directly related to the initial decision not to send sufficient regular army troops at the outset of the war in Afghanistan, and instead, to rely on the forces of the Northern Alliance and the extremely few US Special Operations Forces (SOF) who did not have the necessary training or personnel to deal with battlefield detention questions or even the inclination to want to deal with the issue.
“A related problem with the initial detention was that predominantly US forces were not the ones who were taking the prisoners in the first place. Instead, we relied upon Afghans, such as General [Abdul Rashid] Dostums forces, and upon Pakistanis, to hand over prisoners whom they had apprehended, or who had been turned over to them for bounties, sometimes as much as $5,000 per head.
“Such practices meant that the likelihood was high that some of the Guantanamo detainees had been turned in to US forces in order to settle local scores, for tribal reasons, or just as a method of making money. I recall conversations with serving military officers at the time, who told me that many detainees were turned over for the wrong reasons, particularly for bounties and other incentives.”
In Hamad’s case, Wilkerson said that he has “no reason to believe that any more thorough process was used to determine whether his seizure or transfer to Guantanamo was justified.”
Wilkerson said that he discussed the Guantanamo detainees issue regularly with Powell and, based on those discussions, Wilkerson discovered that “President Bush was involved in all of the Guantanamo decision-making.”
“My own view is that it was easy for Vice President Cheney to run circles around President Bush bureaucratically because Cheney had the network within the government to do so,” Wilkerson said. “Moreover, by exploiting what Secretary Powell called the president’s ‘cowboy instincts,’ Vice President Cheney could more often than not gain the President’s acquiescence.”
Wilkerson said issues revolving around efforts to repatriate individuals wrongfully detained at Guantanamo came up during the morning briefings chaired by Powell that he and about 50 to 55 senior State Department officials attended beginning in August 2002 after the prison facility was opened.
“At the briefing, Secretary Powell would question Ambassador Pierre Prosper (Ambassador-at-Large for War Crimes), Cofer Black (Coordinator for Counter Terrorism), and Beth Jones (Assistant Secretary for Eurasia), or other senior personnel for information about specific progress in negotiating detainee releases,” Wilkerson said. “A number of these conversations arose because Secretary Powell received frequent phone calls from British Foreign Minister Jack Straw, who had consulted with Secretary Powell frequently about repatriating the British Guantánamo detainees …
“I also know that several other foreign ministers spoke with Secretary Powell urging him to repatriate their countries’ citizens. During these morning briefings, Secretary Powell would express frustration that more progress had not been made with detainee releases.”
During one particular meeting, Wilkerson said, Ambassador Prosper, the point person on negotiating the transfer of detainees to other countries, “would discuss the difficulty he encountered in dealing with the Department of Defense, and specifically Donald Rumsfeld, who just refused to let detainees go.”
Wilkerson said it was “politically impossible” to release detainees, even the ones Bush, Cheney, Rumsfeld and other senior officials knew were innocent.
“The concern expressed was that if they were released to another country, even an ally such as the United Kingdom, the leadership of the Defense Department would be left without any plausible explanation to the American people, whether the released detainee was subsequently found to be innocent by the receiving country, or whether the detainee was truly a terrorist and, upon release were it to then occur, would return to the war against the US,” he said. “Another concern was that the detention efforts at Guantánamo would be revealed as the incredibly confused operation that they were. Such results were not acceptable to the
Administration and would have been severely detrimental to the leadership at DOD.”
A spokesman for Rumsfeld said Wilkerson’s claims are untrue. Peggy Cifrino, Powell’s spokeswoman, said the former Secretary of State, “has not seen Colonel Wilkerson’s declaration and, therefore, cannot provide a comment.”
Still, what Wilkerson described may have very well been an issue in Hamad’s case, although as Jim White pointed out in a blog post, the Pentagon appears to have had a policy in place to “justify the long-term detention and interrogation of innocent civilians.”
According to Hamad’s lawsuit, the Pentagon had cleared him for release in November 2005, according to a redacted copy of his clearance decision his attorneys cited in their complaint.
But he was not freed from Guantanamo until December 2007. His attorneys said they were notified via email in March 2007 that Hamad was eligible to be sent back home to Sudan and it was during negotiations with the Sudanese government that they discovered he was eligible for release a full two years earlier.
About 183 detainees, many of whom have already been cleared for release, remain at Guantanamo. A majority of them have never been charged with a crime.
Afghanistan Enacts Law Giving War Criminals Blanket Immunity March 17, 2010Posted by rogerhollander in Human Rights, Iraq and Afghanistan, War.
Tags: afghan cabinet, Afghanistan, afghanistan amnesty, Afghanistan War, human rights, jason leopold, Karzai, roger hollander, rule of law, War Crimes, war criminals, warlords
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Tuesday 16 March 2010
Afghan President Hamid Karzai at the presidential palace in Kabul.
A law that provides blanket immunity and pardons former members of Afghanistan’s armed factions for war crimes and human rights abuses committed prior to December 2001 was quietly enacted three years ago by parliament, despite previous assurances by President Hamid Karzai that he would not sign it or allow it to take effect.
According to Waheed Omer, Karzai’s spokesman, the amnesty law was enacted because it was approved by two-thirds of parliament and therefore did not need Karzai’s signature. Parliament is made up largely of former warlords who were accused by Afghans and human rights groups of war crimes.
“This law was passed with a two-thirds majority in our parliament, and according to our constitution, when a law is passed with a two-thirds majority, it does not require the president to sign it,” Omer said during a briefing Tuesday, publicly acknowledging for the first time the blanket immunity provision is now law. Omer’s comments were first reported by Reuters.
The International Center for Transitional Justice (ICTJ), an organization founded in 2001 that assists countries in their pursuit of accountability for mass atrocities or human rights abuses, said “blanket amnesties promote impunity and are currently deemed unlawful under international law.”
Human rights groups learned that the law was enacted after it was published in Afghanistan’s official gazette.
“It is not clear when this happened, as the date on the gazetted law is December 2008, while some sources say it was not published until January 2010, when printed copies of the law were received by organizations that monitor the gazette,” according to Human Rights Watch (HRW), which condemned the law and demanded that it be repealed.
According to Aunohita Mojumdar, a reporter based in Kabul, “in Afghanistan’s legislative process, a draft law must be ratified by parliament, signed by the president, and then published in an official gazette before it takes effect.”
“The actual process is sometimes far murkier,” Mojumdar wrote in a report published Tuesday on Eurasianet.org. “Parliament passed a controversial amnesty law – offering immunity to all those involved in past, present and future hostilities, including war crimes or crimes against humanity – in 2007. But the initiative generated considerable opposition from Karzai’s international allies and human rights groups who saw it as an attempt by former commanders-turned-MPs to give themselves immunity. Thus, the Reconciliation and General Amnesty Law was not immediately published.
“In January of this year, however, news spread that the law had been quietly printed in December of 2008. With the international community now behind Karzai’s reconciliation strategy, the government is now apparently hoping that the amnesty law will be accepted without creating too much of a stir.”
When it passed in early 2007, the National Reconciliation, General Amnesty and National Stability Law said anyone engaged in armed conflict before the formation of the Interim Administration in Afghanistan shall “enjoy all their legal rights and not be prosecuted.”
The law provides amnesty to “all political factions and hostile parties who were involved in a way or another in hostilities before establishing of the interim administration [in December 2001],” including “those individuals and groups who are still in opposition to the Islamic Republic of Afghanistan and cease enmity after the enforcement of this resolution and join the process of national reconciliation and respect the constitution and other laws and abide them.”
HRW said last week that the amnesty law “was passed at a time when Afghan public opinion was beginning to mobilize against warlords and impunity.”
“An opinion survey published by the Afghan Independent Human Rights Commission (AIHRC) in 2005 indicated that large majorities favored prosecutions,” according to HRW, which documented some of the widespread human rights abuses that took place between 1992 and 1993 in a report, “Blood Stained Hands: Past Atrocities in Kabul and Afghanistan’s Legacy of Impunity.” “The Afghan government, the United Nations, the Commission, donor governments and others were involved in discussions about addressing past abuses through the government’s ‘Transitional Justice Action Plan.’”
“In 2006 the government launched the Action Plan for Peace, Reconciliation and Justice in Afghanistan, which makes clear commitments to: 1) acknowledge the suffering of the Afghan people; 2) ensure credible and accountable state institutions and purge human rights violators and criminals from the state institutions; 3) undertake truth-seeking and documentation; 4) promote reconciliation and improvement of national unity; and (5) establish a task force to recommend an additional accountability mechanism,” according to HRW.
Brad Adams, HRW’s Asia director, whose organization called on the Karzai government to repeal the law, said, “Afghans have been losing hope in their government because so many alleged war criminals and human rights abusers remain in positions of power.”
“The amnesty law was passed to protect these people from prosecution, sending a message to Afghans that not only are these rights abusers here to stay, but more might soon be welcomed in,” Adams said.
In a statement, The Transitional Justice Coordination Group (TJCG), which is made up of a coalition of 24 civil society organizations, called upon Karzai’s government to immediately suspend the law “with a view to its eventual abolishment.”
“The TJCG contends that rather than promote reconciliation and stability, by granting a blanket amnesty this law promotes impunity and prevents genuine reconciliation,” the group said. “Accountability, not amnesia, for past and present crimes is a prerequisite for genuine reconciliation and peace in Afghanistan. All Afghans will suffer as a result of implementation of this law, which undermines justice and the rule of law.”
“The government of Afghanistan does not have the right to usurp the rights of victims. Only the victims have the right to forgive perpetrators,” the group added. “But the state has a duty to investigate and prosecute war crimes, crimes against humanity and other serious human rights violations such as disappearances, torture and extra judicial killings.”
Although a provision in the amnesty law allows victims of atrocities to file individual claims against alleged perpetrators, TJCG said it “places an unfair burden upon victims, who have already suffered so much and would put themselves at risk of reprisals given the impunity that prevails in Afghanistan today.”
“This provision is particularly impractical so far as it concerns women and the many victims of sexual violence, who already face considerable barriers to obtaining justice,” TJCG said. “Provision for the granting of amnesty in respect of future crimes further undermines the legitimacy of the law and serves as an open invitation for the continued commission of abuses with impunity.”
War Criminals in Karzai’s Cabinet
Karzai’s government includes high-level officials who were accused of war crimes. According to Reuters, both of Karzai’s vice presidents “are former leaders of armed groups whose factions squabbled for control of Kabul in the 1990s, when thousands of civilians were killed and hundreds of thousands fled their homes.”
The amnesty law absolves them of their past crimes.
Moreover, Karzai approved the re-appointment in January of Gen. Abdul Rashid Dotsum, an ex-militia chief, to a high-level military position, which was harshly criticized by civil rights groups.
“Washington and other capitals have accused Dostum of ‘massive war crimes,’ including the death of some 2,000 Taliban fighters who suffocated in cargo containers in which they were being held after surrendering to Dostum in 2001,” Reuters reported.
His style of governing has been harshly criticized by US officials, including Ambassador Karl Eikenberry, who warned President Obama in two top-secret cables last year against sending additional troops to the country until Karzai began to take steps to root out corruption in his government.
Reuters noted that this isn’t the first time Karzai has has “ushered through a law after promising not to pass it, or pledging to make changes to the law before signing it only to revoke those changes later.”
“In 2009, Karzai pushed through a controversial law for Shi’ite Muslims criticised by rights groups and Western leaders, after some articles were seen to greatly infringe on women’s rights and even legalise marital rape.”
So far, neither the Obama administration, United Nations officials or others in the international community have discussed the amnesty law. On Monday evening, Obama and Karzai spoke for more than an hour via a video teleconference about the US commitment to the region. But the amnesty law did not come up during their conversation.
Tags: Criminal Justice, eric holder, interrogation, jack goldsmith, jason leopold, jay bybee, john yoo, justice department, opr, patrick leahy, patrick philbin, roger hollander, senate judiciary, torture, torture memos, waterboarding
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(Roger’s note: do we live in a banana republic or what? Government officials illegally destroy millions of vital records that document criminal activity, and the political/judicial system at best makes half-assed efforts to hold them accountable. Read the last paragraphs of this article. When the representative of the Department of Justice was asked by a Congressional Committee if he had made any attempt to recover the missing emails, his response in effect is, don’t worry, we’ve got some of them, i.e. the ones that didn’t go missing. A classic non-answer answer. George Orwell would be proud.)
Friday 26 February 2010
The National Archives and a watchdog group sent letters to the Justice Department (DOJ) Thursday demanding an investigation into the destruction of John Yoo’s emails in the summer of 2002, when he and other government attorneys prepared and finalized legal memoranda for the CIA that redefined torture and authorized interrogators to brutalize war on terror detainees.
The Federal Records Act (FRA) requires the preservation of government documents. Records cannot be destroyed unless approved by the National Archives and Records Administration (NARA). According to the DOJ’s web site, emails fall under FRA if they pertain to government business.
Last week, the DOJ’s Office of Professional Responsibility (OPR) released a long-awaited report into the legal work former Office of Legal Counsel (OLC) attorneys Yoo and Jay Bybee did for the Bush administration on torture. Yoo currently works as a law professor at UC Berkeley and Bybee received a lifetime appointment as a federal judge on the Ninth Circuit Court of Appeals.
Legal opinions written by Yoo in August 2002 and signed by Bybee cleared the way for the Bush administration to subject detainees to the near drowning of waterboarding and other brutal treatment at the hands of CIA interrogators.
Waterboarding and some of the other interrogation techniques sanctioned by the Bush administration, such as slamming detainees against walls and depriving them of sleep, have long been considered acts of torture and have been treated and prosecuted as war crimes. However, Yoo – working closely with Bush administration officials – claimed that the techniques did not violate US criminal laws and international treaties forbidding torture.
Further, Yoo asserted that Bush’s presidential powers were virtually unlimited in wartime, even a conflict as vaguely defined as the war on terror.
But Yoo, the report concluded, was found to have “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”
Bybee was found to have “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.” OPR investigators deemed this to be a violation of “professional standards” and recommended that Yoo and Bybee be referred to state bar associations where they could have had their law licenses revoked. Career prosecutor David Margolis, however, downgraded the criticism to “poor judgment,” which means the DOJ now won’t make the referral.
The voluminous report noted, however, that while OPR investigtors were initially provided us with a relatively small number of emails, files, and draft documents,” it became “apparent, during the course of our review, that relevant documents were missing…”
OPR “requested and were given direct access to the email and computer records of REDACTED, Yoo, [Deputy Assistant Attorney General Patrick] Philbin, Bybee, and [fomer OLC head Jack] Goldsmith” during the course of the investigation into the creation of the torture memos. But OPR investigators said their probe was “hampered by the loss of Yoo’s and Philbin’s email records.”
OPR investigators said they were told that most of “Yoo’s email records” as well as “Philbin’s email records from July 2002 through August 5, 2002 – the time period in which the Bybee Memo was completed and the Classified Bybee Memo … was created” were deleted and “reportedly” not recoverable. The deleted emails also included other relevant documents the OPR needed to assist its investigation.
In a letter sent Thursday to Jeanette Plante at the DOJ’s Office of Records and Management Policy, Paul Wester, director of the Archives’ modern record program, said, in accordance with federal rules governing the preservation of records, if the “DOJ determines that an unauthorized destruction has occurred, then DOJ needs to submit a report to the [National Archives and Records Administration ..."
Wester requested a response within 30 days. A DOJ spokesperson was unavailable for comment.
The destruction of Yoo's and Philbin's emails also caught the attention of watchdog group Citizens for Responsibility and Ethics in Washington (CREW), which had waged a years-long legal battle with the Bush administration over its destruction of tens of millions of emails and failed efforts to take steps to recover the documents and preserve others.
Melanie Sloan, CREW's executive director, said Thursday, “given the disappearance of millions of Bush White House emails, we shouldn't be surprised that crucial emails also disappeared from the Bush Justice Department."
“The question now is what is the Attorney General going to do about it?" she said.
Sloan also sent a letter sent to Attorney General Eric Holder Thursday calling for a criminal investigation into the matter, a request that will likely go unfulfilled given the Justice Department's and the Obama administration's unwillingness to further delve into the previous administration's alleged crimes.
She said such an inquiry is warranted, however, and compared the destruction of emails with the CIA's destruction of torture tapes, which led to a criminal investigation and the appointment of a special prosecutor by former Attorney General Michael Mukasey. That probe is ongoing.
"The destruction of emails from high-ranking officials such as Messrs. Yoo and Philbin related to a subject of critical important to the Department of Justice and the nation as a whole clearly violates FRA," Sloan's letter to Holder said.
Indeed, the DOJ's web site said emails are federal records if it:
- Documents agreements reached in meetings, telephone conversations, or other E-mail exchanges on substantive matters relating to business processes or activities
- Provides comments on or objections to the language on drafts of policy statements or action plans
- Supplements information in official files and/or adds to a complete understanding of office operations and responsibilities
The DOJ rules for preserving records also said "the unlawful removal or destruction of federal records" can result in "criminal or civil penalties, fines and/or imprisonment."
Sloan, in her letter to Holder, said, "the apparent failure of the Department of Justice to take any action in the face of knowledge that crucial records had been destroyed reflects a patent disregard of mandatory federal record keeping laws ... Even if Mr. Yoo and Mr. Philbin did not violate their professional obligations by writing the torture memos, they - or others seeking to hide the truth - may have broken the law by deleting their emails."
Last December, CREW and the historical group the National Security Archive announced that they entered into a settlement with the Obama administration over the loss of Bush administration emails.
Under the terms of the agreement, 94 days of missing emails will be restored. That includes emails from the Office of the Vice President that were previously lost and unrecoverable and were subpoenaed by Patrick Fitzgerald, the special prosecutor appointed to probe the unauthorized leak of covert CIA operative Valerie Plame Wilson. This time frame also coincided with litigation surrounding the release of documents related to former Vice President Dick Cheney's Energy Task Force meetings.
The emails will be sent to NARA. But whether they contain answers to lingering questions about the CIA leak or Cheney's energy task force meetings will not be known for years, as the documents will not be immediately available for public view.
The destruction of Yoo's and Philbin's email was raised Friday during a Senate Judiciary Committee hearing, where Acting Deputy Attorney General Gary Grindler is currently testifying about the OPR report.
Judiciary Committee Chairman Patrick Leahy (D-Vermont) asked Grindler whether the Justice Department has taken any steps to try and recover the emails.
Grindler said the report does not "suggest there was anything nefarious" and disclosed that he has spoken with technical staff at the Justice Department to determine what "was going on with the emails."
"If they are retrievable, I will direct [technical staff] to retrieve them,” Grindler told Leahy. However, “the report does include a review of some of Mr. Yoo’s emails. The [OPR] report doesn’t have a complete lack of his emails.”
Tags: cia, davic margolis, eric holder, geneva conventions, house judiciary, interrogation, jason leopold, jay bybee, John Ashcroft, John Conyers, john yoo, justice department, mary patrice brown, Michael Chertoff, nuremberg, olc, opr, patrick leahy, roger hollander, senate judiciary, special prosecutor, steven bradbury, torture, torture memo, waterboarding
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(Roger’s note: Harry Truman famously said, “The buck stops here.” This is a rare admission of accountability coming from government. The entire cover up of the notorious and illegal Cheney/Bush torture program, including the conviction of the likes of Lynndie England at Abu Ghraib and focusing on “rogue” CIA agents, is a typical government maneuver to shirk ultimate responsibility. Many of us thought the OPR report might finally give some satisfaction at a higher level, but the buck has been passed from President Obama to Attorney General Holder to Associate Deputy Attorney General David Margolis, who has put a kibosh on the findings that would have led to sanctions against Yoo and Bybee.
[Oct.9, 2009: Yoo and Bybee submit their responses to final report to Associate Deputy Attorney General David Margolis, who is tasked with reviewing OPR’s conclusions. http://www.mainjustice.com/2010/02/19/a-timeline-of-the-opr-report/ ]
My question is: who “tasked” David Margolis to whitewash the OPR report’s conclusions? Call my cynical, but could it have been Holder who was told by Obama to find a reliable subaltern to do the dirty deed?
I would also point out that the jurists who provoided the legal framework for Hitler’s halocaust were subject to accountability by the Nuremberg Tribunal along with the high level government officials who carried out the genocide. We can be thankful that the likes of Obama and Holder were not calling the shots then, which would have resulted in some low level “rogue Nazis” convicted and punished for the extinction of millions of Jews, Gypsies, Gays, communitsts, etc. while Hess, Goring, Bormann and the rest of the Hitler A Team got off scott free.)
Friday 19 February 2010
For background on Jason Leopold’s extensive work on the Yoo/Bybee torture memo report please see here, here, here, and here. Leopold will also be writing a through analysis of the voluminous report this weekend.
A long-awaited report into the legal memos former Justice Department attorneys John Yoo and Jay Bybee prepared for the Bush administration on torture was released Friday afternoon and concluded that the men violated “professional standards” and should be referred to state bar associations where a further review of their legal work could have led to the revocation of their law licenses.
But career prosecutor David Margolis, who reviewed the final version of the report, changed the disciplinary recommendations to “exercised poor judgment.” [There are three versions of the report, all of which can be found here.]
That means Yoo and Bybee will not be punished for having fixed the law around Bush administration policy that allowed the CIA to subject suspected terrorists to torture techniques, such as waterboarding, beatings, and sleep deprivation, as the report notes.
Yoo is a law professor at UC Berkeley and Bybee is a 9th Circuit Appeals Court judge. Former Justice Department official Steven Bradbury also authored several torture memos and was criticized in the OPR report. Investigators said they had “serious concerns about his analysis.” But the report did not charge him with ethical violations.
Former Attorney General John Ashcroft and Michael Chertoff, who was head of the Justice Department’s criminal division at the time the torture memos were prepared, were also criticized for not conducting a critical legal analysis of the memos, though neither was charged with misconduct. Ashcroft refused to cooperate with the investigation.
According to a January 5 memo Margolis sent to Attorney General Eric Holder, the Justice Department’s Office of Professional Responsibility (OPR) issued a final report on July 29, 2009 and “concluded that former Office of Legal Counsel (OLC) attorneys John Yoo and Jay Bybee engaged in professional misconduct by failing to provide ‘thorough, candid, and objective’ analysis in memoranda regarding the interrogation of detained terrorist suspects.”
Yoo specifically was found to have “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”
Bybee was found to have “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”
The report says that Yoo believed that George W. Bush’s Commander-in-Chief powers gave him the authority to unilaterally order the mass murder of civilians.
In the final version of the report, an OPR investigator questioned Yoo about what he referred to as the “bad things opinion,” where Yoo discussed what the president could do during wartime.
“What about ordering a village of resistants to be massacred?” an OPR investigator asked Yoo. “Is that a power that the president could legally—”
“Yeah,” Yoo said.
“To order a village of civilians to be [exterminated]?” the questioner replied.
“Sure,” Yoo said.
But Margolis, who suggested Yoo and Bybee’s flawed legal work was due to efforts to prevent another 9/11, said he was “unpersuaded” by OPR’s “misconduct” conclusins and declined to endorse its findings.
An earlier version of the report rejected that line of reasoning.
“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,” says the earlier draft of the report from OPR head Mary Patrice Brown. Her report, like the original draft, was sharply critical of the legal work that went into the torture memos and found that it lacked “thoroughness, objectivity and candor.”
“OPR’s own framework defines ‘professional misconduct’ such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney’s conduct,” Margolis wrote in the 69-page memo. “I am unpersuaded that OPR has identified such a standard. For this reason…I cannot adpot OPR’s findings of misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where Yoo and Bybee are licensed.”
Despite dozens of cases highlighted in the report that showed Yoo twisted the law in order to advance the Bush administration’s torture policy, Margolis said he did “not believe the evidence establishes [that Yoo] set about to knowingly provide inaccurate legal advice to his client or that he acted with conscious indifference to the consequences of his actions.”
“While I have declined to adopt OPR’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client,” Margolis added.
Margolis concluded his review, stating that “these memos contained some significant flaws.
“But as all that glitters is not gold, all flaws do not constitute professional misconduct,” he wrote. “The bar associations in the District of Columbia or Pennsylvania can choose to take up this matter, but the Department will make no referral.”
Margolis described himself in the memo as a “Department of Justice official who [beginning in the 1990s] has resolved challenges to negative OPR findings against former Department attorneys, most often in the context of proposed bar referrals.”
Yoo’s attorney, Miguel Estrada, said in an October 9, 2009 rebuttal to the final version of the report that ”this perversion of the professional rules and myopic pursuit of Professor Yoo and Judge Bybee, can be explained only by a desire to settle a score over Bush administration policies in the war on terror.”
“But policy disputes are for the ballot box, not for the bar,” Estrada said. “Professor Yoo and Judge Bybee did nothing more than provide a good-faith assessment of the legality of a program deemed vital to our national security.”
Estrada claims that Yoo and Bybee were well aware of what the “CIA wanted” in the areas of subjecting detainees to brutal torture techniques.
“Of course the attorneys at OLC knew what the CIA wanted, since they knew the agency was attempting to get information to thwart further terrorist attacks, and indeed OLC obviously was being asked to opine on specific interrogation techniques that it knew the CIA wished to use if it legally could do so,” he said.
OPR investigators noted that during the course of their four-and-a-half year probe, they were unable to obtain all of the evidence they needed. For example, they said that “most” of Yoo’s emails they sought during the critical time period the memos were drafted prior to August 2002 “had been deleted and were not recoverable.”
House Judiciary Committee Chairman John Conyers, whose office released the report, said he will hold a hearing to discuss the findings “shortly.”
In a statement accompanying the report, Conyers said the report makes clear that the torture memos “were legally flawed and fundamentally unsound.”
“Even worse,” Conyers said. “It reveals that the memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House. It is nothing short of a travesty that prisoners in US custody were abused and mistreated based on legal work as shoddy as this.”
Senate Judicary Chairman Patrick Leahy also condemned the findings and announced that he will hold a hearing on the report’s findings next Friday. In a statement, Leahy said the report “is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo, on the treatment of detainees.”
“The deeply flawed legal opinions proffered by these former OLC officials created a ‘golden shield’ that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in US custody. In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country,” Leahy added. “I have serious concerns about the role each of these government lawyers played in the development of these policies. I have said before that if the Judiciary Committee, and the Senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment.”
The Center for Constitutional Rights (CCR), which represents several detainees at Guantanamo and others who were tortured by military and CIA interrogators, called for Bybee to be impeached and for Holder to order a criminal probe headed by a special prosecutor.
In a statement, CCR said the report makes it “makes it abundantly clear that the decisions about the torture program took place at the highest level, and the damning description of the program further show that the torture memos were written to order by the lawyers from the Office of Legal Counsel who played a key role in creating the program.”
“Ultimately Jay Bybee must be impeached, tried and removed from his seat as a federal judge on the 9th Circuit, but he should have the decency to resign immediately,” CCR aaid. “We call on Attorney General Eric Holder to order these men criminally investigated by an independent special prosecutor who is allowed to follow the facts where they lead, all the way up the chain of command.”
Jameel Jaffer, director of the ACLU’s National Security Project, which is largely responsible for bringing to light many of the revelations about the torture program described in the report, said, “The OPR report confirms the central role that the Office of Legal Counsel played in developing the Bush administration’s torture program, and it underscores once again that the decision to endorse torture was made by the Bush administration’s most senior officials.”
“It also makes clear that the investigation initiated by the Justice Department last year, which focuses on ‘rogue’ interrogators, is too narrow,” Jaffer added. “Interrogators should be held accountable where they violated the law, but the core problem was not one of rogue interrogators but one of senior government officials who knowingly authorized the gravest crimes. The Justice Department should immediately expand its investigation to encompass not just the interrogators who used torture but the senior Bush administration officials who authorized and facilitated it.”
Cheney Admits to War Crimes, Media Yawns, Obama Turns the Other Cheek February 16, 2010Posted by rogerhollander in Criminal Justice, Dick Cheney, Torture.
Tags: Abu Ghraib, al-Qaeda, bagram, binya mohamed, cheney, CIA torture, detainees, enhanced interrogation, eric holder, geneva convention, Guantanamo, International law, jason leopold, jay bybee, john yoo, jonathan karl, journalism, justice department, Media, nuremberg, olc, opr, Rahm Emanuel, roger hollander, torture, torture tapes, War Crimes, waterboarding
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Monday 15 February 2010
Dick Cheney is a sadist.
On Sunday, in an exclusive interview with Jonathan Karl of ABC News’ “This Week,” Cheney proclaimed his love of torture, derided the Obama administration for outlawing the practice, and admitted that the Bush administration ordered Justice Department attorneys to fix the law around his policies.
“I was a big supporter of waterboarding,” Cheney told Karl, as if he were issuing a challenge to officials in the current administration, including President Barack Obama, who said flatly last year that waterboarding is torture, to take action against him. “I was a big supporter of the enhanced interrogation techniques…”
The former vice president’s declaration closely follows admissions he made in December 2008, about a month before the Bush administration exited the White House, when he said he personally authorized the torture of 33 suspected terrorist detainees and approved the waterboarding of three so-called “high-value” prisoners.
“I signed off on it; others did, as well, too,” Cheney said in an interview with the right-wing Washington Times about the waterboarding, a drowning technique where a person is strapped to a board, his face covered with a cloth and then water is poured over it. It is a torture technique dating back at least to the Spanish Inquisition.
The US has long treated waterboarding as a war crime and has prosecuted Japanese soldiers for using it against US troops during World War II. And Ronald Reagan’s Justice Department prosecuted a Texas sheriff and three deputies for using the practice to get confessions.
But Cheney’s admissions back then, as well as those he made on Sunday, went unchallenged by Karl and others in the mainstream media. Indeed, the two major national newspapers–The New York Times and The Washington Post–characterized Cheney’s interview as a mere spat between the vice president and the Obama administration over the direction of the latter’s counterterroism and national security policies.
The Times and Post did not report that Cheney’s comments about waterboarding and his enthusiastic support of torturing detainees amounted to an admission of war crimes given that the president has publicly stated that waterboarding is torture.
Ironically, in March 2003, after Iraqi troops captured several U.S. soldiers and let them be interviewed on Iraqi TV, senior Bush administration officials expressed outrage over this violation of the Geneva Convention.
“If there is somebody captured,” President George W. Bush told reporters on March 23, 2003, “I expect those people to be treated humanely. If not, the people who mistreat the prisoners will be treated as war criminals.”
Nor did the Times or Post report that the “enhanced interrogation techniques” Cheney backed was, in numerous cases, administered to prisoners detained at Guantanamo and in detention centers in Iraq and Afghanistan who we would come to discover were innocent and simply in the wrong place at the wrong time. The torture methods that Cheney helped implement as official policy was also directly responsible for the deaths of at least 100 detainees.
Renowned human rights attorney and Harper’s magazine contributor Scott Horton said, “Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques.”
In addition to Obama, Attorney General Eric Holder said during his confirmation hearing last year that waterboarding is torture.
“Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants,” Horton wrote in a Harper’s dispatch Monday.
Karl also made no mention of the fact that the CIA’s own watchdog concluded in a report declassified last year that the torture of detainees Cheney signed off on did not result in any actionable intelligence nor did it thwart any imminent attacks on the United States. To the contrary, torture led to bogus information, wrongful elevated threat warnings, and undermined the war-crimes charges against Mohammed al-Qahtani, the alleged “20th hijacker” in the 9/11 attacks because the evidence against him was obtained through torture.
Karl also failed to call out Cheney on a statement the former vice president made during his interview in which he suggested the policy of torture was carried out only after the Bush administration told Justice Department attorneys it wanted the legal justification to subject suspected al-Qaeda prisoners to brutal interrogation methods.
Cheney told Karl that he continues to be critical of the Obama administration “because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had — had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who’d done what we asked them to do.”
In an interview with Karl on December 15, 2008, Cheney made a similar comment, which Karl also allowed to go unchallenged, stating that the Bush administration “had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross.”
Bush’s Key Line of Defense Destroyed
Those statements, both on Sunday and in his December 2008 interview with Karl, destroys a key line in the Bush administration’s defense against war crimes charges. For years, Cheney and other Bush administration officials pinned their defense on the fact that they had received legal advice from Justice Department lawyers that the brutal interrogations of “war on terror” detainees did not constitute torture or violate other laws of war.
Cheney’s statements, however, would suggest that the lawyers were colluding with administration officials in setting policy, rather than providing objective legal analysis.
In fact, as I reported last year, an investigation by the Department of Justice’s Office of Professional Responsibility (OPR) determined that DOJ attorneys John Yoo and Jay Bybee blurred the lines between attorneys charged with providing independent legal advice to the White House and policy advocates who were working to advance the administration’s goals, according to legal sources who were privy to an original draft of the OPR report.
That was a conclusion Dawn Johnsen reached. Johnsen was tapped a year ago by Obama to head the Office of Legal Counsel (OLC), where Yoo and Bybee worked, but her confirmation has been stuck in limbo.
In a 2006 Indiana Law Journal article, she said the function of OLC should be to “provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.”
“The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action,” said Johnsen, who served in the OLC under President Bill Clinton. “In short, OLC must be prepared to say no to the President.
“For OLC instead to distort its legal analysis to support preferred policy outcomes undermines the rule of law and our democratic system of government. Perhaps most essential to avoiding a culture in which OLC becomes merely an advocate of the Administration’s policy preferences is transparency in the specific legal interpretations that inform executive action, as well as in the general governing processes and standards followed in formulating that legal advice.”
In a 2007 UCLA Law Review article, Johnsen said Yoo’s Aug. 1, 2002, torture memo is “unmistakably” an “advocacy piece.”
“OLC abandoned fundamental practices of principled and balanced legal interpretation,” Johnsen wrote. “The Torture Opinion relentlessly seeks to circumvent all legal limits on the CIA’s ability to engage in torture, and it simply ignores arguments to the contrary.
“The Opinion fails, for example, to cite highly relevant precedent, regulations, and even constitutional provisions, and it misuses sources upon which it does rely. Yoo remains almost alone in continuing to assert that the Torture Opinion was ‘entirely accurate’ and not outcome driven.”
The original draft of the OPR report concluded that Yoo and Bybee violated professional standards and recommended a referral to state bar associations where they could have faced disciplinary action and have had their law licenses revoked.
The report’s findings could have influenced whether George W. Bush, Cheney and other senior officials in that administration were held accountable for torture and other war crimes. But two weeks ago, it was revealed that officials in Obama’s Justice Department backed off the earlier recommendation and instead altered the misconduct findings against Yoo and Bybee to “poor judgment,” which means neither will face disciplinary action. The report has not yet been released.
For his part, Yoo had already admitted in no uncertain terms that Bush administration officials sought to legalize torture and that he and Bybee fixed the law around the Bush administration’s policy.
As I noted in a report last year, in his book, “War by Other Means: An Insider’s Account on the War On Terror,” Yoo described his participation in meetings that helped develop the controversial policies for the treatment of detainees.
For instance, Yoo wrote about a trip he took to Guantanamo Bay, Cuba, with other senior administration officials to observe interrogations and to join in discussions about specific interrogation methods. In other words, Yoo was not acting as an independent attorney providing the White House with unbiased legal advice but was more of an advocate for administration policy.
The meetings that Yoo described appear similar to those disclosed by ABC News in April 2008.
“The most senior Bush administration officials repeatedly discussed and approved specific details of exactly how high-value al-Qaeda suspects would be interrogated by the CIA,” ABC News reported at the time, citing unnamed sources.
“The high-level discussions about these ‘enhanced interrogation techniques’ were so detailed, these sources said, some of the interrogation sessions were almost choreographed – down to the number of times CIA agents could use a specific tactic.
“These top advisers signed off on how the CIA would interrogate top al-Qaeda suspects – whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding,” according to unnamed sources quoted by ABC News.
Torture Preceded Legal Advice
If ABC’s Karl had a firmer grasp on the issues he queried Cheney about he would have known that as recently as last week, three UK high-court judges released seven paragraphs of a previously classified intelligence document that proved the CIA tortured Binyam Mohamed, a British resident captured in Pakistan in April 2002 who was falsely tied to a dirty bomb plot, months before the Bush administration obtained a memo from John Yoo and Jay Bybee at the Justice Department’s Office of Legal Counsel (OLC) authorizing specific methods of torture to be used against high-value detainees, further undercutting Cheney’s line of defense.
The document stated bluntly that Mohamed’s treatment “could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.”
Under the United Nations Convention Against Torture, the treatment of Mohamed and the clear record that the Bush administration used waterboarding and other brutal techniques to extract information from detainees should have triggered the United States to conduct a full investigation and to prosecute the offenders.In the case of the US’s refusal to do so, other nations would be obligated to act under the principle of universality.
However, instead of living up to that treaty commitment, the Obama administration has time and again resisted calls for government investigations and has gone to court to block lawsuits that demand release of torture evidence or seek civil penalties against officials implicated in the torture.
Though it’s true, as Vice President Joe Biden stated Sunday on “Meet the Press,” that Cheney is rewriting history and making “factually, substantively wrong” statements about the Obama administration’s track record and approach to counterterrorism, it’s difficult, if not near impossible, to defend this president from the likes of Cheney.
Case in point: last week the Obama administration treated the disclosure by British judicial officials of the former prisoner’s torture as a security breach and threatened to cut off an intelligence sharing arrangement with the UK government.
In what can only be described as a stunning response to the revelations contained in the intelligence document, White House spokesman Ben LaBolt said “the [UK} court's judgment will complicate the confidentiality of our intelligence-sharing relationship with the UK, and it will have to factor into our decision-making going forward."
"We're deeply disappointed with the court's judgment today, because we shared this information in confidence and with certain expectations," LaBolt said, making no mention of Mohamed's treatment nor even offering him an apology for the torture he was subjected to by the CIA over the course of several years. Mohamed was released from Guantanamo last year and returned to the UK.
As an aside, as revelatory as the disclosures were, news reports of Mohamed's torture were buried by the mainstream print media and went unreported by the cable news outlets, underscoring how the media's interest in Bush's torture policies has waned.
The Obama administration's decision to ignore the past administration's crimes has alienated civil liberties groups, who he could once count on for support.
Last December, on the day Obama received a Nobel Peace prize, Jameel Jaffer, director of the ACLU’s National Security Project, told reporters that "on every front, the [Obama] administration is actively obstructing accountability. This administration is shielding Bush administration officials from civil liability, criminal investigation and even public scrutiny for their role in authorizing torture.”
That being the reality is what makes Cheney’s claim on Sunday that the Obama administration is attempting to prosecute “CIA personnel that had carried out our counterterrorism policy or disbarring lawyers” laughable.
Holder has expanded the mandate of a special counsel, appointed during the Bush administration, who is investigating the destruction of torture tapes, to conduct a “preliminary review” of less than a dozen torture cases involving CIA contractors and interrogators to determine whether launching an expanded criminal inquiry is warranted. That hardly amounts to a prosecution. It’s not even an investigation.
And “disbarring lawyers, a clear reference to Yoo and Bybee, which is beyond the scope of the Justice Department watchdog’s authority to begin with, is no longer a possibility given that the OPR report reportedly does not recommend disciplinary action.
In a statement, the ACLU said, “to date, not a single torture victim has had his day in court.”
As Jane Mayer reported in a recent issue of the New Yorker, Holder’s limited scope authorization to Durham did not go over well with the White House and Obama’s Chief of Staff Rahm Emanuel made sure Holder knew where the administration stood.
“Emanuel worried that such investigations would alienate the intelligence community…,” Mayer reported. “Emanuel couldn’t complain directly to Holder without violating strictures against political interference in prosecutorial decisions. But he conveyed his unhappiness to Holder indirectly, two sources said. Emanuel demanded, ‘Didn’t he get the memo that we’re not re-litigating the past?’”
Jason Leopold is the Deputy Managing Editor at Truthout. He is the author of the Los Angeles Times bestseller, News Junkie, a memoir. Visit www.newsjunkiebook.com for a preview.
Is the White House Pressuring DOJ to Delay Torture Report Until Health Care Bill Passes? January 27, 2010Posted by rogerhollander in Criminal Justice, Torture.
Tags: aclu, constitution, Criminal Justice, doj, eric holder, foia, geneva conventions, jason leopold, jaybee, john yoo, justice, justice department, nuremberg, olc, opr, roger hollander, steven bradbury, supreme court, torture, torture memo, truman
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Tuesday 26 January 2010
Did the Obama administration pressure the Department of Justice (DOJ) to suppress a long-awaited report from one of the agency’s watchdogs on issues revolving around torture until Congress passes a health care bill?
That’s what senior aides to two Democratic lawmakers who have been closely tracking the report have alleged in interviews conducted over the past month.
The report, prepared by the DOJ’s Office of Professional Responsibility (OPR), examined the legal work former Office of Legal Counsel (OLC) attorneys John Yoo, Jay Bybee and Steven Bradbury performed for the Bush administration after 9/11 and is said to have reached damning conclusions.
It was supposed to be released last November, according to testimony Attorney General Eric Holder gave to Congress, after a career prosecutor completed a review, which Holder said at the time was in its “final stages.”
But the aides said in December, a couple of weeks after Holder testified, they participated in an informal meeting about the possibility of holding hearings when the report was released. During the discussion, someone raised questions about why the report was not yet released as Holder had promised.
The aides said that a senator, whose name they would not reveal, then disclosed that he was told by senior White House officials that if the report were released as planned it would have hurt the administration’s efforts to get a health care bill passed and impact the possibility of trying to win Republican support for the legislation, which never came to pass.
So, in early December, the senator claimed, according to the account given by the aides, the administration told the DOJ to delay releasing it.
Spokesmen for Democratic Sens. Sheldon Whitehouse and Dick Durbin, who have been instrumental in pushing for the report’s release, said they did not know why it has not yet surfaced nor were they aware of any claims that the report has been delayed until a health care bill passes.
In an interview early this month, Tracy Schmaler, a DOJ spokeswoman, disputed claims that the White House was pressuring the agency to withhold the report in lieu of a health care bill.
“That is absolutely untrue,” Schmaler said. “One thing has nothing to do with another.”
During our interview, Schmaler said the review “process is ongoing and we hope to have [the report] complete and released soon.”
Two DOJ officials familiar with details of the report said a delay in releasing it in the time frame Holder had promised was due, in part, to the fact that the career prosecutor charged with reviewing the final version was hospitalized in December for pneumonia.
However, they noted that that the prosecutor’s illness doesn’t account for why the report has still not been released, which they claim is due to “politics.” These sources requested anonymity because the details surrounding the report remain secret.
The possibility that politics may be the reason the report remains under wraps was not lost on the ACLU, which filed a lawsuit Friday in hopes of compelling the DOJ to immediately release the report.
In an interview, ACLU lawyer Alex Abdo, who, along with other attorneys at the civil rights organization, has successfully pried loose previously withheld documents related to the Bush administration’s torture policies, said “it’s possible political reasons might be holding up the release of the report.”
“It’s long overdue and this is an unacceptable delay,” Abdo said. “We haven’t seen any progress or received any public explanation.”
The group first filed a Freedom of Information Act (FOIA) request on December 4, 2009, when it became clear that the report was not going to be released in the time frame Holder promised that it would be. Abdo said the ACLU never received a response to its FOIA request. So, the organization filed another one last week. Earlier this month, a coalition of attorneys, journalists and activists also filed a FOIA request with the DOJ to obtain a copy of the report and other documents.
Abdo noted that when the report is finally released, “we will almost certainly see redactions [and the FOIA lawsuit will] serve as a placeholder to lodge challenges to excessive redactions in the report.”
In response to the ACLU’s complaint, Schmaler said that Holder has already stated “the department would make [the report] available as much as possible when it’s done.”
She added that there is “no delay” in releasing the report and, as she noted in a previous interview, she pointed to OPR “post investigation” guidelines, which details the process that takes place during the course of such internal investigations.
The OPR report was completed more than a year ago. It was revised after former Attorney General Michael Mukasey and his deputy, Mark Filip, insisted that Yoo, Bybee and Bradbury be given an opportunity to respond to its conclusions.
In his testimony last November, Holder said the report had not been released sooner due to “the amount of time we gave to the lawyers who represented the people who are the subject of the report an opportunity to respond. And then [OPR] had to react to those responses.”
Last month, several legal sources knowledgeable about the review process said Yoo filed additional responses to the report’s findings via his attorney, Miguel Estrada.
Estrada told Truthout he was bound by a confidentiality agreement he entered into with the DOJ and could not comment on the claims that he submitted another set of responses on behalf of Yoo.
Schmaler said she could not comment on the veracity of those claims.
According to the two DOJ officials, an original draft of the report had already concluded that when writing the August 2002 torture memo, Yoo failed to cite the key precedent relating to a president’s war powers, Youngstown Sheet & Tube Co. v. Sawyer, a 1952 Supreme Court case that addressed President Harry Truman’s order to seize steel mills that had been shut down in a labor dispute during the Korean War.
Truman said the strike threatened national defense and thus justified his actions under his Article II powers in the Constitution.
But the Supreme Court overturned Truman’s order, saying, “the President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Since Congress hadn’t delegated such authority to Truman, the Supreme Court ruled that Truman’s actions were unconstitutional, with an influential concurring opinion written by Justice Robert Jackson.
Yoo’s memoranda concluded that the laws governing torture violated President Bush’s commander-in-chief powers under the Constitution because it prevented him “from gaining the intelligence he believes necessary to prevent attacks upon the United States.”
Yoo’s lengthy response to the OPR expanded upon a defense he first cited in his 2006 book, “War by Other Means,” in explaining why he didn’t cite Youngstown.
Yoo wrote: “we didn’t cite [Justice Robert] Jackson’s individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the president’s conduct of foreign affairs and national security.
“Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war …
“Far from inventing some novel interpretation of the Constitution, [Office of Legal Counsel, where Yoo, Bybee and Bradbury worked] was really doing little more than following in the footsteps of the Clinton Justice Department and all prior Justice Departments.”
It’s unknown whether Yoo made a convincing argument to OPR in defending his reasons for not citing the landmark ruling.
But a July 10, 2009, report by the inspectors general of the CIA, National Security Agency, DOJ and Defense Department into the Bush administration’s warrantless wiretapping program, which were based on legal opinions written by Yoo, also took Yoo to task for failing to cite Youngstown.
Yoo “omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, a leading case on the distribution of government powers between the Executive and Legislative Branches,” the report said.
“Justice [Robert] Jackson’s analysis of President Truman’s Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC’s subsequent reevaluation of Yoo’s opinions,” the report said.
Ironically, as Congress continues to try and pass a health care bill that Democrats say wil expand insurance benefits to millions of Americans, the issue also plays a particularly important role in the OPR report.
The early draft of the OPR report concluded, legal sources said, that Yoo misinterpreted an obscure 2000 health benefits statute and wrongly applied it to August 2002 and March 2003 interrogation opinions he wrote, according to the DOJ officials.
Again, expanding upon a defense that first appeared in his book, Yoo placed some of the responsibility on Congress for forcing him to rely upon the statute to narrow the definition of torture in a way that permitted techniques such as waterboarding.
In passing an anti-torture law, Congress only prohibited “severe physical or mental pain or suffering,” Yoo wrote. “The ban on torture does not prohibit any pain or suffering whether physical or mental, only severe acts. Congress did not define severe … OLC interpreted ‘severe’ as a level of pain ‘equivalent in intensity to the pain accompanying serious physical injury, such as death, organ failure, or serious impairment of body functions. [Emphasis added.]
“OLC’s first 2002 definition did not make up this definition out of thin air. It applied a standard technique used to interpret ambiguous phrases in law. When Congress does not define its terms, courts commonly look in the United States Code for the use of similar language. The only other place where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including ‘severe pain’ where an individual’s health is placed ‘in serious jeopardy,’ ‘serious impairment to bodily functions,’ or ‘serious dysfunction of any bodily organ or part.’”
Jack Goldsmith, who succeeded Bybee at the OLC in October 2003 after Bybee was confirmed as an appeals court judge on the Ninth Circuit, wrote in his book, “The Terror Presidency,” that Yoo’s torture memo “was legally flawed” and sloppily written and he was harshly critical of Yoo’s use of a medical benefits statute to define torture.
“That statute defined an ‘emergency medical condition’ that warranted certain health benefits as a condition ‘manifesting itself by acute symptoms of sufficient severity (including severe pain)’ such that the absence of immediate medical care might reasonably be thought to result in death, organ failure, or impairment of bodily function,” Goldsmith wrote.
“The health benefits statute’s use of ‘severe pain’ had no relationship whatsoever to the torture statute. And even if it did, the health benefit statute did not define ‘severe pain.’ Rather it used the term ‘severe pain’ as a sign of an emergency medical condition that, if not treated, might cause organ failure and the like…. OLC’s clumsily definitional arbitrage didn’t seem even in the ballpark.”
Goldsmith rescinded the torture memo in mid-2004 and resigned shortly thereafter. His questions as to whether Yoo and Bybee provided the White House with sound legal advice sparked the OPR investigation.
Blistering Indictment Leveled Against Obama Over His Handling of Bush-Era War Crimes December 12, 2009Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
Tags: Abu Ghraib, aclu, afghan detainees, bagram, binyam mohamed, bush administration, cheney, constitution, convention against torture, detainees, doj, enemy combatants, geneva conventions, Guantanamo, guantanamo suicides, human rights, International law, jason leopold, jay bybee, jeffesen dataplan, john yoo, jose padilla, justice department, miliatry commissions, nuremberg, obama nobel, rendition, roger hollander, state secrets, steven bradbury, torture, torture memos, torture photos, War Crimes, waterboarding
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Saturday 12 December 2009
During his 36-minute speech upon accepting the Nobel Peace Prize in Oslo, Norway Thursday, President Barack Obama explained to an audience of 1,000 how the United States has a “moral and strategic interest” in abiding by a code of conduct when waging war – even one that pits the US against a “vicious adversary that abides by no rules.”
“That is what makes us different from those whom we fight,” Obama said. “That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor those ideals by upholding them not just when it is easy, but when it is hard.”
Obama’s high-minded declaration, made on the 61st anniversary of Human Rights Day, rings hollow in light of fresh reports that his administration continues to operate secret prisons in Afghanistan where detainees have been tortured and where human rights organizations such as the International Committee for the Red Cross are refused access to the prisoners.
Obama has substituted words for action on issues surrounding torture since his first days in office nearly one year ago. Last June, on the 25th anniversary of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Obama said the US government “must stand against torture wherever it takes place” and that his administration “is committed to taking concrete actions against torture and to address the needs of its victims.”
But it’s clear that his pledge does not apply to torture committed by Bush administration officials.
That’s the point the American Civil Liberties Union (ACLU) made shortly after Obama’s acceptance speech. Officials from the civil rights organization issued a withering indictment of the Obama administration’s handling of clear-cut cases of war crimes they say were committed by former Bush officials who the Obama administration not only refuses to prosecute but has gone to extraordinary lengths to cover up.
“We’re increasingly disappointed and alarmed by the current administration’s stance on accountability for torture,” said Jameel Jaffer, director of the ACLU’s National Security Project, during a conference call with reporters. “On every front, the [Obama] administration is actively obstructing accountability. This administration is shielding Bush administration officials from civil liability, criminal investigation and even public scrutiny for their role in authorizing torture.”
Before leaving office, Dick Cheney said he approved waterboarding on at least three “high value” detainees and the “enhanced interrogation” of 33 other prisoners. President Bush made a somewhat vaguer acknowledgement of authorizing these techniques.
The ACLU and other civil rights groups said Bush and Cheney’s comments amounted to an admission of war crimes.
Under the Convention Against Torture, the clear record that the Bush administration used waterboarding and other brutal techniques to extract information from detainees should have triggered the United States to conduct a full investigation and to prosecute the offenders. In the case of the US’s refusal to do so, other nations would be obligated to act under the principle of universality.
But Jaffer said that while “the Bush administration constructed a legal framework for torture, now the Obama administration is constructing a legal framework for impunity.”
Defending John Yoo
Indeed, last week, Obama’s Justice Department asked a federal appeals court to dismiss a lawsuit filed against torture memo author John Yoo by Jose Padilla, a US citizen who was arrested in 2002 for allegedly planning to detonate a radioactive “dirty bomb” and detained in a Navy brig on US soil for three years as an enemy combatant, where he says he was tortured as a direct result of Yoo’s legal authorization.
The Obama administration argued, in a friend-of-the-court brief filed with the Ninth Circuit Court of Appeals, that DOJ lawyers who advise on torture or other human rights abuses are entitled to absolute immunity from lawsuits.
“The Holder Justice Department insists that they are absolutely not responsible, and that they are free to act according to a far lower standard of conduct than that which governs Americans generally,” wrote Scott Horton, a human rights attorney and constitutional expert in a column published on the Harper’s web site. “Indeed, this has emerged as a sort of ignoble mantra for the Justice Department, uniting both the Bush and Obama administrations.”
Constitutional law professor Jonathan Turley said the Obama administration “has gutted the hard-fought victories in Nuremberg where lawyers and judges were often guilty of war crimes in their legal advice and opinions.”
“If successful in [the Padilla] case, the Obama Administration will succeed in returning the world to the rules leading to the war crimes at Nuremberg,” Turley said. “Quite a legacy for the world’s newest Nobel Peace Prize winner.”
What’s remarkable about the Obama Justice Department’s amicus brief in the Padilla case is that it didn’t need to be filed to begin with. Yoo hired a private defense attorney, albeit one who is paid for with taxpayer dollars, earlier this year when the Justice Department backed out of representing Yoo due to undisclosed conflicts.
In court papers filed last week, the Obama administration took a hard line in another case, arguing that a Supreme Court ruling that gave detainees the right to challenge their indefinite imprisonment doesn’t apply to the cases of Yasser Al-Zahrani and Salah Al-Salami, two Guantanamo prisoners who committed suicide in June 2006.
The fathers of the men, who were never charged with a crime, sued Bush administration Defense Department officials in federal court, arguing that the torture their sons endured drove them to hang themselves on June 10, 2006 after being detained for four years.
But the Obama administration said in a legal brief that the Military Commissions Act of 2006 stripped the courts of jurisdiction to hear lawsuits that challenged the “detention, transfer, treatment or conditions of confinement” of “enemy combatants.”
Moreover, in court papers filed in June, the Obama administration said, “Judicial intrusion into this politically sensitive area by creating a damages remedy for detainees could subvert these military and diplomatic efforts and lead to ‘embarrassment of our government abroad.’”
Besides, the Obama administration said, just as John Yoo is entitled to absolute immunity, Defense Department officials are entitled to “qualified immunity” because the “Fifth and Eighth Amendments do not extend to Guantánamo Bay detainees.”
Earlier this week, a report prepared by the Seton Hall University School of Law Center for Policy & Research called into question the veracity of the government’s official version of the deaths of the two men and that of a third prisoner, who was also found hanging in his cell on June 10, 2006. The government attributed the suicides to “asymmetrical warfare.”
“Both the time and exact manner of the deaths remain uncertain, and the presence of rags stuffed in the detainees‘ throats is unexplained,” the report said.
CIA Renditions and State Secrets
The Obama administration has also mounted an aggressive defense of the Bush administration in another high-profile case, this one related to a lawsuit filed in 2007 against Jeppesen DataPlan, a subsidiary of Boeing. Jeppesen DataPlan is accused of knowingly flying people kidnapped by the CIA to secret overseas prisons where they were brutally tortured during the course of their interrogations.
The Bush administration invoked the state secrets privilege, arguing that national security would be threatened if the lawsuit moved forward, and urged a federal court to throw out the suit. The Bush administration had previously used the privilege as a means to conceal evidence of government misconduct and illegality, critics charged. Still, the judge in the Jeppesen case threw out the lawsuit. The ACLU, which filed the complaint on behalf of five former Guantanamo Bay prisoners, appealed the decision.
Last February, less than a month after Obama was sworn into office and after promising to break free from the abuses committed by the Bush administration, Obama’s Justice Department shocked civil liberties and human rights advocates when attorneys appeared in federal court in San Francisco and invoked the same state secrets privilege that Bush used to keep the Jeppesen case from moving forward.
Even the judge was baffled. She asked a Justice Department attorney if the change in leadership would lead to a change in the administration’s legal position with regard to state secrets, but the answer was a resounding “no.”
An appellate court ultimately ruled in April that the case could move forward. The panel noted that state secrets can only be cited with regard to specific evidence, and not used as a means to dismiss an entire lawsuit. Justice Department attorneys will be back in court Tuesday to appeal the decision, once again asserting state secrets to try and have the case dismissed.
Sen. Russ Feingold, (D-Wisconsin), who heads a subcommittee on the Constitution, said Obama’s use of state secrets during his first 100 days in office was “troubling” and earned the president a “D” for the way in which his administration has handled civil liberties lawsuits filed against the Bush administration, including the Jepessen lawsuit.
Going a step further, the Obama administration has tried to block Binyam Mohamed, one of the victims named in Jeppesen lawsuit, from obtaining documentary evidence to support his claims that he was tortured while in US custody and that the British government was complicit.
In a legal brief, the ACLU said Mohamed was beaten so severely on numerous occasions that he routinely lost consciousness, and during one gruesome torture session “a scalpel was used to make incisions all over his body, including his penis, after which a hot stinging liquid was poured into his open wounds.”
The Obama White House, repeating threats first leveled by the Bush administration, told British government officials that intelligence sharing between the US and Britain would cease if seven redacted paragraphs contained in secret US documents related to allegations about Mohamed’s torture were made public by a British High Court.
Those threats were reiterated by Secretary of State Hillary Clinton, the CIA and Obama’s National Security Adviser James Jones, according to British Foreign Secretary David Miliband.
“The United States Government’s position is that, if the redacted paragraphs are made public, then the United States will re-evaluate its intelligence-sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence it provided,” the High Court wrote in a ruling in February when it agreed to keep the paragraphs blacked out. “There is a real risk, if we restored the redacted paragraphs, the United States Government, by its review of the shared intelligence arrangements, could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.”
The Obama White House actually issued a statement after the High Court ruling thanking the British government “for its continued commitment to protect sensitive national security information” and added that the order would “preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens.”
It’s unclear why the Obama administration believed national security would be at risk if details of Mohamed’s torture were released. That’s the realization a two-judge panel arrived at when it decided last October to reverse its earlier decision, ruling that the paragraphs at issue should be disclosed because there was a “compelling public interest” and “for reasons of democratic accountability and the rule of law.”
The High Court found that there was insufficient evidence to support White House claims that intelligence sharing between the US and Britain would be endangered because there wasn’t an “explicit statement of consequences [of disclosure by the Court] by the Obama Administration.”
Most notably, however, the judges concluded that the seven paragraphs in question had nothing to do with “secret intelligence” as the Obama administration had claimed. Rather, they were related to the culpability of British intelligence agents in Mohamed’s torture.
Following the High Court’s reversal, The New York Times published a scathing editorial attacking the Obama administration’s hard-line position in the Mohamed case, saying, “The Obama administration has clung for so long to the Bush administration’s expansive claims of national security and executive power that it is in danger of turning President George W. Bush’s cover-up of abuses committed in the name of fighting terrorism into President Barack Obama’s cover-up.”
Mohamed was freed in February after being imprisoned for seven years, and was sent back to Britain. Terrorism-related charges against him were dropped last year when his attorneys sued to gain access to more than three dozen secret documents.
Obama also reversed a commitment he made earlier this year to release photos of US soldiers torturing and abusing prisoners in Iraq and Afghanistan.
Obama said his decision stemmed from his personal review of the photos and his concern that their release would endanger American soldiers in Iraq and Afghanistan, but the reversal came after several weeks of mounting accusations portraying him as weak on national security.
It became clear that the president had succumbed to a propaganda barrage unleashed by former Bush administration officials, their congressional allies, the right-wing news media and holdovers that retain key jobs under Obama.
His administration decided to fight an appeals court order to the Supreme Court that it originally said it would honor, while his appointees personally worked with lawmakers in Congress to pass legislation that would authorize the secretary of defense to circumvent the Freedom of Information Act and keep the photographs under wraps.
The legislation was passed in November and Obama swiftly signed it into law. By blocking the release of photographs, Obama essentially killed any meaningful chance of opening the door to an investigation of the senior Pentagon and Bush administration officials responsible for implementing the policies that directly led to the abuses captured in the images.
Obama’s decision to fight to conceal the photos marked an about-face on the open-government policies that he proclaimed during his second day in office.
On January 21, President Obama signed an executive order instructing all federal agencies and departments to “adopt a presumption in favor” of Freedom of Information Act requests and promised to make the federal government more transparent.
“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama’s order said. “In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”
But the ACLU pointed out Thursday that it has seen a limited impact from that sweeping executive order.
“We have not seen the presumption translated into the release of more information,” Jaffer said. “There are several cases [in] which we are just at a loss to understand why the information we are requesting is still being withheld.” This information includes documents related to the Bush administration’s warrantless wiretapping program and transcripts of Combatant Status Review Tribunals in which detainees “describe the abuse they suffered at the hands of their CIA interrogators.”
Obama and Congress
In April, a set of legal memoranda written by Yoo and former OLC heads Jay Bybee and Steven Bradbury were released. The memos authorized the CIA to implement a list of torture techniques to be used against so-called “high-value” prisoners, including beatings, waterboarding, sleep deprivation, placing insects inside a confinement box to induce fear, exposing detainees to extreme heat and cold, and shackling prisoners to the ceilings of their prison cells or in other painful “stress positions.” The release prompted renewed pressure on members of Congress to investigate the Bush-era abuses.
Senate Judiciary Committee Chairman Patrick Leahy and his counterpart in the House, Rep. John Conyers, floated competing proposals early in the year for a 9/11-style “truth commission” and a blue-ribbon investigative panel to look into the circumstances that led the Bush administration to formulate a policy of torture.
Obama signaled that he was open to the idea of a “truth commission,” but said he was concerned “about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out critical national security operations.”
Yet he immediately shifted his stance after Republicans pilloried him in numerous op-ed columns in major publications and on cable news programs for backtracking on early promises to “look forward” instead of backwards.
That led Obama to call lawmakers to the White House for a closed-door meeting in late April to talk them out of moving forward with independent investigations. The president even discouraged oversight hearings into the Bush administration’s use of torture.
Underscoring Obama’s position on the issue, White House press secretary Robert Gibbs told reporters at the time, “The president determined the concept didn’t seem altogether workable in this case.”
“The last few days might be evidence of why something like this might just become a political back and forth,” Gibbs said.
While Republicans criticized the idea, Democrats weren’t eager to get behind the plan either, and it was scrapped as lawmakers said they were forced to deal with more pressing issues like the economy and health care.
Upcoming Hearings on Torture?
However, according to Christopher Anders, the ACLU’s senior legislative counsel, Leahy and Conyers have both said they intend to hold hearings next year once a long-awaited report by the Justice Department’s Office of Professional Responsibility (OPR) is released that delves into Yoo, Bybee and Bradbury’s legal work surrounding torture.
Leahy and Conyers “said a number of times that they would have hearings when the OPR report comes out,” Anders said in an interview. “It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings.”
Anders added that while there is a time and place for independent commissions, the issue of torture is really a matter for Congress to probe.
“These are the hard issues that Congress should really be tackling” Anders said. “It’s squarely under their jurisdiction.”
Spokespeople for Conyers and Leahy did not return calls or respond to e-mails seeking comment.
Much of what the public knows thus far about the Bush administration’s torture policies is due to the ACLU Freedom of Information Act lawsuit against the government. Since 2004, the organization has obtained more than 100,000 pages of documents that show the Bush White House signed off on and authorized torture against detainees at Guantanamo Bay and at prisons in Iraq.
Several weeks ago, the organization obtained hundreds of new documents, one of which was a one-page questionnaire, apparently from the Justice Department’s Office of Legal Counsel, that asked (presumably inquiring of the CIA), “How close is each technique to the ‘rack and screw?’”
The rack and screw is a medieval torture device. As Alex Abdo, a legal fellow with the ACLU, pointed out in an interview, “Anytime you need to ask a question like that it is deeply disturbing and shows you’ve strayed from constitutional norms.
“You’re asking a question as to whether the conduct you’re about to authorize relates to rack and screw, and that in and of itself should be evidence enough that you’re going too far. It never should get to that point.”
But the release of these explosive documents, as well as others that showed the Bush White House was deeply involved in discussions surrounding the destruction of 92 torture tapes, was met with absolute silence by Congress and the White House.
The ACLU said that as much as the Obama administration may hope that additional revelations related to the Bush administration’s policy of torture will slip underneath the radar, numerous documents expected to be released in the weeks and months ahead will ensure the issue remains front and center for years to come, and calls for accountability will continue.
“The lesson that this is giving to the rest of the world is that countries do not have to be accountable for their actions even when torture and abuse occurs,” the ACLU’s Anders said. “That’s going to make it much more difficult for the United States to push other countries on human rights issues across the board, and it’s going to make it much easier for other countries to shirk their own duties to bring accountability for their own actions in the past.”
Still, that didn’t stop Obama from lecturing the Oslo audience about the importance of upholding human rights.
Jaffer said there is “an obvious tension on what the president is saying on the commitment to human rights and the work we’re doing here in the United States to actually hold people accountable for the violations of both domestic and international law.”
“A lot of what was authorized by senior Bush administration officials was illegal not only under international law but domestic law as well,” Jaffer said. “Many of the methods that were approved by CIA and [Department of Defense] interrogators had previously been described by multiple US administrations as war crimes and some of them have been prosecuted as war crimes.
“Waterboarding in particular is something that has been prosecuted as a war crime before September 11. And yet we are not holding people accountable for having used those techniques, authorized those techniques. Increasingly, we’re frustrated by the gap between the Obama administration’s rhetoric on accountability and reality. We see the Obama administration actively obstructing accountability on every front.”