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US interrogators may have killed dozens, human rights researcher and rights group say

May 7, 2009

By John Byrne | The Raw Story, May 6, 2009

United States interrogators killed nearly four dozen detainees during or after their interrogations, according a report published by a human rights researcher based on a Human Rights First report and followup investigations.

In all, 98 detainees have died while in US hands. Thirty-four homicides have been identified, with at least eight detainees — and as many as 12 — having been tortured to death, according to a 2006 Human Rights First report that underwrites the researcher’s posting. The causes of 48 more deaths remain uncertain.

The researcher, John Sifton, worked for five years for Human Rights Watch. In a posting Tuesday, he documents myriad cases of detainees who died at the hands of their US interrogators. Some of the instances he cites are graphic.

Most of those taken captive were killed in Afghanistan and Iraq. They include at least one Afghani soldier, Jamal Naseer, who was mistakenly arrested in 2004. “Those arrested with Naseer later said that during interrogations U.S. personnel punched and kicked them, hung them upside down, and hit them with sticks or cables,” Sifton writes. “Some said they were doused with cold water and forced to lie in the snow. Nasser collapsed about two weeks after the arrest, complaining of stomach pain, probably an internal hemorrhage.”

Another Afghan killing occurred in 2002. Mohammad Sayari was killed by four U.S. servicemembers after being detained for allegedly “following their movements.” A Pentagon document obtained by the American Civil Liberties Union in 2005 said that the Defense Department found a captain and three sergeants had “murdered” Sayari, but the section dealing with the department’s probe was redacted.

Perhaps the most macabre case occurred in Iraq, which was documented in a Human Rights First report in 2006.

“Nagem Sadoon Hatab… a 52-year-old Iraqi, was killed while in U.S. custody at a holding camp close to Nasiriyah,” the group wrote. “Although a U.S. Army medical examiner found that Hatab had died of strangulation, the evidence that would have been required to secure accountability for his death – Hatab’s body – was rendered unusable in court. Hatab’s internal organs were left exposed on an airport tarmac for hours; in the blistering Baghdad heat, the organs were destroyed; the throat bone that would have supported the Army medical examiner’s findings of strangulation was never found.”

In another graphic instance, a former Iraqi general was beaten by US forces and suffocated to death. The military officer charged in the death was given just 60 days house arrest.

“Abed Hamed Mowhoush [was] a former Iraqi general beaten over days by U.S. Army, CIA and other non-military forces, stuffed into a sleeping bag, wrapped with electrical cord, and suffocated to death,” Human Rights First writes. “In the recently concluded trial of a low-level military officer charged in Mowhoush’s death, the officer received a written reprimand, a fine, and 60 days with his movements limited to his work, home, and church.”

Another Iraqi man was killed in a US detention facility on Mosul in 2003.

“U.S. military personnel who examined Kenami when he first arrived at the facility determined that he had no preexisting medical conditions,” the rights group writes. “Once in custody, as a disciplinary measure for talking, Kenami was forced to perform extreme amounts of exercise—a technique used across Afghanistan and Iraq. Then his hands were bound behind his back with plastic handcuffs, he was hooded, and forced to lie in an overcrowded cell. Kenami was found dead the morning after his arrest, still bound and hooded. No autopsy was conducted; no official cause of death was determined. After the Abu Ghraib scandal, a review of Kenami’s death was launched, and Army reviewers criticized the initial criminal investigation for failing to conduct an autopsy; interview interrogators, medics, or detainees present at the scene of the death; and collect physical evidence. To date, however, the Army has taken no known action in the case.”

Death from interrogation is hard to separate from simple detainee death while in US custody. But one particular case stands out that seems to have fallen by the wayside — the murder of CIA “ghost” detainee named Manadel al-Jamadi, who was tortured to death by a CIA team at Abu Ghraib in 2003.

“Pictures of Abu Ghraib guards Charles Graner and Sabrina Harman posing with al-Jamadi’s dead body, the so-called Ice Man, were among the most notorious of the Abu Ghraib photographs published in April 2004,” Sifton notes. “A CIA officer named Mark Swanner and an interpreter led the team that interrogated al-Jamadi. Nine Navy personnel were also implicated. An autopsy conducted by the U.S. military five days after al-Jamadi’s death found that the cause: “blunt force injuries complicated by compromised respiration.”

“Reporting by The New Yorker’s Jane Mayer and NPR’s John McChesney revealed that al-Jamadi was strung up from handcuffs behind his back, a torture tactic sometimes called a ‘Palestinian hanging,’” he adds. “After an investigation, the CIA referred the case to the Department of Justice for possible criminal prosecution of the CIA personnel involved, but no charges were ever brought. Prosecutors accused 10 Navy personnel of the crime; nine were given nonjudicial punishments, such as rank reductions and letters of reprimand, and a 10th was acquitted.”

Additionally, Sifton notes the CIA may have had some close calls with detainees nearly dying during interrogations: the May 10, 2005, Bush Administration torture memo by Stephen Bradbury notes that doctors were nearby to perform a tracheotomy if during waterboarding the suspect is approaching death.

“Most seriously, for reasons of physical fatigue of psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness,” Bradbury wrote. “An unresponsive subject should be righted immediately, and the integrator should deliver a sub-xyphoid thrust to expel the water. If this fails to restore normal breathing, aggressive medical intervention is required….’”

The memo says CIA doctors were on hand with necessary equipment to perform a tracheotomy if necessary during waterboarding sessions: “[W]e are informed that the necessary emergency medical equipment is always present—although not visible to the detainee—during any application of the waterboard.”

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Britain Tries to Block CIA Rendition Case

May 5, 2009
by William Fisher | Antiwar.com,  May 05, 2009

British High Court judges are expected to rule this week on whether a document by the U.S. Central Intelligence Agency can be publicly disclosed, thus opening the courthouse door to a lawsuit charging that the British government was complicit in facilitating the rendition of a British resident by the CIA, which tortured and secretly imprisoned him at Guantánamo Bay.

Lawyers acting for David Miliband, the British foreign secretary, last week made a last-ditch attempt to block the release of the CIA information, which reportedly shows what British authorities knew about the mistreatment of British resident Binyam Mohamed.

The information is a seven-paragraph summary of CIA documents, described earlier by Lord Justice Thomas and Mr. Justice Lloyd Jones as containing nothing which could “possibly be described as ‘highly sensitive classified U.S. intelligence.’”

In a ruling earlier this year, the High Court judges said: “Indeed we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials … relevant to allegations of torture and cruel, inhumane, or degrading treatment, politically embarrassing though it might be.”

However, David Mackie, a senior government lawyer, told the two judges that Miliband had been told by Obama administration officials that the disclosure of the seven paragraphs “could likely result in serious damage to UK and U.S. national security.”

The claim was made despite Obama’s recent decision to release detailed information about CIA interrogation techniques, including waterboarding.

Lawyers for Mohamed say Obama’s action means it is highly unlikely that the president would object to the disclosure of the CIA summary.

This latest move in the long-running case in the High Court comes as a federal appeals court in the U.S. gave the legal green light to a case brought there by five men including Mohamed and another British resident, Bisher al-Rawi, who say they were tortured under the CIA’s extraordinary rendition program.

The five former Guantánamo Bay detainees are suing Boeing subsidiary Jeppesen Dataplan for allegedly providing flights to secret prisons overseas, where the abuse is said to have happened.

In what may become a landmark decision, a federal appeals court recently ruled that the “state secrets privilege” – routinely used by the government to block lawsuits against its officials – can only be used to contest specific evidence, but not to dismiss an entire suit.

The ruling, which was hailed by human rights advocates, came in connection with a lawsuit against a company known as Jeppesen DataPlan for its role in the government’s “extraordinary rendition” program during the administration of former President George W. Bush.

“This is a tremendous step forward,” said Mohamed’s lawyer, Clive Stafford Smith, director of the Britain-based legal charity Reprieve, referring to the decision in the U.S. case.

“Binyam Mohamed, Bisher al-Rawi [another plaintiff] and perhaps many others are one step closer to making the CEOs of these companies stop and think before they commit criminal acts for profit,” he told IPS.

Reprieve’s renditions investigator Clara Gutteridge said: “It is inconceivable that Jeppesen acted alone. People in the highest echelons of the U.S. – and in some cases the UK– governments have authorized illegal rendition flights and must also be held accountable.”

The U.S. suit charges that Jeppesen knowingly participated in the rendition program by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly “disappear” the five men to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. Jeppesen is a subsidiary of aerospace giant Boeing. The lawsuit was brought by the American Civil Liberties Union (ACLU).

During the Bush administration, the government intervened when the case first came before a lower court in 2007, successfully asserting the “state secrets” privilege to have the case thrown out in February 2008. On appeal, the administration of President Barack Obama followed the same road as its predecessor. The appeals court has now reversed that decision.

But lawyers for the men who brought the case also sounded a note of caution. “This historic decision marks the beginning, not the end, of this litigation,” Ben Wizner, staff attorney with the ACLU National Security Project, told IPS. Wizner argued the case for the plaintiffs.

The U.S. appeals court ruling means that the government can assert the “state secrets” privilege for specific pieces of evidence, but not to end a case before it begins.

That means that the privilege is primarily an evidentiary privilege, a definition civil libertarians have long sought. The State Secrets Protection Act, now pending in Congress, would turn that definition into law.

The Obama administration now has three options. It can do nothing, which will mean the case will finally go before a U.S. court. It can ask the entire Ninth Circuit Court of Appeals to rehear the case. Or it can appeal the case to the Supreme Court.

If the case goes to trial, the government can still argue that disclosing anything about Jeppesen’s relationship with the United States government would jeopardize national security secrets. But now it can no longer simply “assert” that privilege; it will have to convince a judge by arguing the point in court.

(Inter Press Service)

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‘Abu Ghraib US prison guards were scapegoats for Bush’ lawyers claim

May 2, 2009

The Times, UK, May 2, 2009

Charles Graner plans to appeal against his conviction for abusing prisoners

Charles Graner plans to appeal against his conviction for abusing prisoners

Tim Reid in Washington

Prison guards jailed for abusing inmates at the Abu Ghraib jail in Iraq are planning to appeal against their convictions on the ground that recently released CIA torture memos prove that they were scapegoats for the Bush Administration.

The photographs of prisoner abuse at the Baghdad jail in 2004 sparked worldwide outrage but the previous administration, from President Bush down, blamed the incident on a few low-ranking “bad apples” who were acting on their own.

The decision by President Obama to release the memos showed that the harsh interrogation tactics were approved and authorised at the highest levels of the White House.

Some of the guards who were convicted of abuse want to return to court and argue that the previous administration sanctioned the abuse but withheld its role from their trials.

Related Links

The latest reaction to the released memos came as it emerged that the two psychologists hired by the CIA to craft the techniques that were used on terror suspects were paid $1,000 (£673) a day. Neither had carried out nor overseen an interrogation.

Twelve guards at Abu Ghraib were convicted on charges related to the abuse, which included attaching leads to naked prisoners, terrifying them with dogs, beatings and slamming them into walls. The wall-slamming was a technique authorised by Justice Department officials at the time, who also said that the simulated drowning technique known as waterboarding was not considered to be torture.

Charles Gittins, a lawyer who represents Charles Graner, the ringleader of the guards who is serving a ten-year sentence, said that the memos proved his long-held contention that Graner and the other defendants, including his former lover Lynndie England, could never have invented tactics such as stress positions and the use of dogs on their own.

“Once the pictures came out, the senior officials involved in the decision-making, they knew. They knew they had to have a cover story. It was the ‘bad apples’ led by Charles Graner,” Mr Gittins told The Washington Post.

Ms England, a poorly educated Army reservist, was pictured holding a dog leash attached to a naked detainee, and also pointing at another being forced to masturbate. She was convicted in September 2005 of abusing prisoners and one count of an indecent act. She was sentenced to three years in a military prison and was paroled after 521 days. Shortly after leaving Iraq she gave birth to a son fathered by Graner. She lives in her home state of West Virginia.

Mr Gittins said the refusal by the Bush Administration to acknowledge that it had authorised such techniques during the trials of the prison guards — and the judges’ refusal to call senior administration officials to testify — undermined their defences.

Mr Gittins wants to take the case of Graner, who is halfway through his sentence, to the Court of Appeals for the Armed Forces to argue that top Bush Administration officials kept their complicity from the defence.

Gary Myers, a lawyer who represented Ivan L “Chip” Frederick on the abuse charges, said that he was going to try to use the memos to have his client’s dishonourable discharge removed from his record.

“What we know is that we had at the time a rogue government that created an environment where this sort of conduct was condoned, if not encouraged,” he said.

He added, however, that relying on illegal opinions or orders would probably not be a defence.

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Straight to the Top

April 27, 2009

By Scott Horton | Harper’s Magazine, April 27, 2009

Correction, April 29, 2009:

This post requires correction in two respects. First, as already noted, Ed Whelan, former Acting Assistant Attorney General for the Office of Legal Counsel, has categorically denied attending the July 2003 meeting mentioned there. Second, I wrongly described his writing at the National Review as “defenses of torture enablers.” This phrase is both vague and inaccurate, and I apologize for any misunderstanding it may have caused. Whelan has never written anything for the National Review in defense of torture or torture enablers.

The torture trail starts and ends in the White House. That is perhaps the most inescapable conclusion to be drawn from the flurry of documents released in the last week—first the OLC memoranda, then a newly declassified report of the Senate Armed Services Committee, and finally an amazing document that Attorney General Eric Holder released yesterday, which has still gained little attention. The Holder note presents a summary of CIA interaction with the White House in connection with the approval of the torture techniques that John Yoo calls the “Bush Program.” Holder’s memo refers to the participants by their job titles only, but John Sifton runs it through a decoder and gives us the actual names. Here’s a key passage:

“[The] CIA’s Office of General Counsel [this would include current Acting CIA General Counsel John Rizzo] met with the Attorney General [John Ashcroft], the National Security Adviser [Condoleezza Rice], the Deputy National Security Adviser [Stephen Hadley], the Legal Adviser to the National Security Council [John Bellinger], and the Counsel to the President [Alberto Gonzales] in mid-May 2002 to discuss the possible use of alternative interrogation methods [on Abu Zubaydah] that differed from the traditional methods used by the U.S. military and intelligence community. At this meeting, the CIA proposed particular alternative interrogation methods, including waterboarding.”

The report continues to implicate more Bush officials: “On July 13, 2002, according to CIA records, attorneys from the CIA’s Office of General Counsel [including Rizzo] met with the Legal Adviser to the National Security Council [Bellinger], a Deputy Assistant Attorney General from OLC [likely John Yoo], the head of the Criminal Division of the Department of Justice [Michael Chertoff], the chief of staff to the Director of the Federal Bureau of Investigation [Kenneth Wainstein], and the Counsel to the President [Alberto Gonzales] to provide an overview of the proposed interrogation plan for Abu Zubaydah.”

It makes clear that sign-off for torture comes from Condoleezza Rice, acting with the advice of her ever-present lawyer, John Bellinger. Another figure making a key appearance is an Acting Assistant Attorney General for the Office of Legal Counsel named M. Edward Whelan III–presumably the same Ed Whelan who is presently melting his keyboard with defenses of the torture-enablers (Update, April 29, 2009: See correction.) at National Review. (Update: Andrew Sullivan also reported on the appearance of Whelan in the memo, but Whelan responded with a categorical denial that he was involved. This suggests that the memo’s chronology is incorrect and requires some clarification.) The central role played by Rice and Bellinger helps explain the State Department’s abrupt about-face on international law issues related to torture immediately after Rice became Secretary of State and Bellinger became Legal Adviser. It also makes clear that Vice President Cheney and President Bush were fully informed of what has happened and approved.

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Torture Used to Try to Link Saddam with 9/11

April 27, 2009

By MARJORIE COHN | Counterpunch, April 24 – 26, 2009

When I testified last year before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties about Bush interrogation policies, Congressman Trent Franks (R-Ariz) stated that former CIA Director Michael Hayden had confirmed that the Bush administration only waterboarded Khalid Sheikh Mohammed, Abu Zabaydah, and Abd al-Rahim al-Nashirit for one minute each. I told Franks that I didn’t believe that. Sure enough, one of the newly released torture memos reveals that Mohammed was waterboarded 183 times and Zubaydah was waterboarded 83 times. One of Stephen Bradbury’s 2005 memos asserted that “enhanced techniques” on Zubaydah yielded the identification of Mohammed and an alleged radioactive bomb plot by Jose Padilla. But FBI supervisory special agent Ali Soufan, who interrogated Zubaydah from March to June 2002, wrote in the New York Times that Zubaydah produced that information under traditional interrogation methods, before the harsh techniques were ever used.

Why, then, the relentless waterboarding of these two men? It turns out that high Bush officials put heavy pressure on Pentagon interrogators to get Mohammed and Zubaydah to reveal a link between Saddam Hussein and the 9/11 hijackers, in order to justify Bush’s illegal and unnecessary invasion of Iraq in 2003. That link was never established.

President Obama released the four memos in response to a Freedom of Information Act request by the ACLU. They describe unimaginably brutal techniques and provide “legal” justification for clearly illegal acts of torture and cruel, inhuman or degrading treatment. In the face of monumental pressure from the CIA to keep them secret, Obama demonstrated great courage in deciding to make the grotesque memos public. At the same time, however, in an attempt to pacify the intelligence establishment, Obama said, “it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

In startlingly clinical and dispassionate terms, the authors of the newly-released torture memos describe and then rationalize why the devastating techniques the CIA sought to employ on human beings do not violate the Torture Statute (18 U.S.C. sec. 2340).

The memos justify 10 techniques, including banging heads into walls 30 times in a row, prolonged nudity, repeated slapping, dietary manipulation, and dousing with cold water as low as 41 degrees. They allow shackling in a standing position for 180 hours, sleep deprivation for 11 days, confinement of people in small dark boxes with insects for hours, and waterboarding to create the perception they are drowning. Moreover, the memos permit many of these techniques to be used in combination for a 30-day period. They find that none of these techniques constitute torture or cruel, inhuman or degrading treatment.

Waterboarding, admittedly the most serious of the methods, is designed, according to Jay Bybee, to induce the perception of “suffocation and incipient panic, i.e. the perception of drowning.” But although Bybee finds that “the use of the waterboard constitutes a threat of imminent death,” he accepts the CIA’s claim that it does “not anticipate that any prolonged mental harm would result from the use of the waterboard.” One of Bradbury’s memos requires that a physician be on duty during waterboarding to perform a tracheotomy in case the victim doesn’t recover after being returned to an upright position.

As psychologist Jeffrey Kaye points out, the CIA and the Justice Department “ignored a wealth of other published information” that indicates dissociative symptoms, changes greater than those in patients undergoing heart surgery, and drops in testosterone to castration levels after acute stress associated with techniques that the memos sanction.

The Torture Statute punishes conduct, or conspiracy to engage in conduct, specifically intended to inflict severe physical or mental pain or suffering. “Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from either the intentional infliction or threatened infliction of severe physical pain or suffering, or from the threat of imminent death.

Bybee asserts that “if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” He makes the novel claim that the presence of personnel with medical training who can stop the interrogation if medically necessary “indicates that it is not your intent to cause severe physical pain.”

Now a federal judge with lifetime appointment, Bybee concludes that waterboarding does not constitute torture under the Torture Statute. However, he writes, “we cannot predict with confidence whether a court would agree with this conclusion.”

Bybee’s memo explains why the 10 techniques could be used on Abu Zubaydah, who was considered to be a top Al Qaeda operative. “Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from [the CIA’s] proposed interrogation methods,” the CIA told Bybee. But Zubaydah was a low-ranking Al Qaeda operative, according to leading FBI counter-terrorism expert Dan Coleman, who advised a top FBI official, “This guy is insane, certifiable, split personality.” This was reported by Ron Suskind in his book, The One Percent Doctrine.

The CIA’s request to confine Zubaydah in a cramped box with an insect was granted by Bybee, who told the CIA it could place a harmless insect in the box and tell Zubaydah that it will sting him but it won’t kill him. Even though the CIA knew that Zubaydah had an irrational fear of insects, Bybee found there would be no threat of severe physical pain or suffering if it followed this procedure.

Obama’s intent to immunize those who violated our laws banning torture and cruel treatment violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.”

U.S. law prohibits torture and cruel, inhuman or degrading treatment, and requires that those who subject people to such treatment be prosecuted. The Convention against Torture compels us to refer all torture cases for prosecution or extradite the suspect to a country that will undertake a criminal investigation.

Obama has made a political calculation to seek amnesty for the CIA torturers. However, good faith reliance on superior orders was rejected as a defense at Nuremberg and in Lt. Calley’s Vietnam-era trial for the My Lai Massacre. The Torture Convention provides unequivocally, “An order from a superior officer or a public authority may not be invoked as a justification for torture.”

There is evidence that the CIA was using the illegal techniques as early as April 2002, three to four months before the August memo was written. That would eliminate “good faith” reliance on Justice Department advice as a “defense” to prosecution.

The Senate IntelligenceCommittee revealed that Condoleezza Rice approved waterboarding in July 17, 2002 “subject to a determination of legality by the OLC.” She got it two weeks later from Bybee and John Yoo. Rice, Dick Cheney, John Ashcroft, Alberto Gonzales and George Tenet reassured the CIA in spring 2003 that the abusive methods were legal.

Obama told AP’s Jennifer Loven in the Oval Office: “With respect to those who formulated those legal decisions, I would say that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don’t want to prejudge that.” If Holder continues to carry out Obama’s political agenda by resisting investigations and prosecution, Congress can, and should, authorize the appointment of a special independent prosecutor to do what the law requires.

The President must fulfill his constitutional duty to ensure that the laws are faithfully executed. Obama said that “nothing will be gained by spending our time and energy laying blame for the past.” He is wrong. There is more to gain from upholding the rule of law. It will make future leaders think twice before they authorize the cruel, illegal treatment of other human beings.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild and author of Cowboy Republic. and co-author of the new book, Rules of Disengagement: The Politics and Honor of Military Dissent. Her articles are archived at www.marjoriecohn.com.

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Condi Rice and John Ashcroft reviewed, approved waterboarding in 2002

April 23, 2009

By R. Jeffrey Smith and Peter Finn
Washington Post Staff Writers
The Washington Post, Thursday, April 23, 2009

Condoleezza Rice, John D. Ashcroft and at least 10 other top Bush officials reviewed and approved as early as the summer of 2002 the CIA’s use of harsh interrogation methods on detainees at secret prisons, including waterboarding that Attorney General Eric H. Holder, Jr. has described as illegal torture, according to a detailed timeline furnished by Holder to the Senate Intelligence Committee.

At a moment when the Justice Department is deciding whether former officials who set interrogation policy or formulated the legal justifications for it should be investigated for committing crimes, the new timeline lists the members of the Bush administration who were present when the CIA’s director and its general counsel explained exactly which questioning methods were to be used and how those sessions proceeded.

Rice gave a key early approval, when, as Bush’s national security adviser, she met on July 17, 2002, with the CIA’s then-director, George J. Tenet, and “advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah,” subject to approval by the Justice Department, according to the timeline. Rice and four other White House officials had been briefed two months earlier on “alternative interrogation methods, including waterboarding,” it states. Waterboarding is a technique that simulates drowning.

A year later, in July 2003, the CIA briefed Rice, Vice President Richard B. Cheney, Attorney General Ashcroft, White House counsel Alberto R. Gonzales and National Security Council legal adviser John Bellinger on the use of waterboarding and other techniques, it states. They “reaffirmed that the CIA program was lawful and reflected administration policy.”

In early 2004, a comprehensive report by the CIA inspector general raised new questions about the program, including the waterboarding of three detainees. It said that the interrogations were not clearly legal under an international treaty the United States had signed, known as the Convention Against Torture, which bars cruel, inhuman and degrading treatment that falls short of torture.

A fresh legal review by the Justice Department prompted Ashcroft to inform the CIA in writing on July 22, 2004, that its interrogation methods – except waterboarding – were legal. The following month, the head of the Justice Department’s Office of Legal Counsel added that even waterboarding would be legal if it were carried out with a series of safeguards according to CIA plans. By the following May, the department had completed two more reviews of the program that came to the same conclusion. These were among the memos released by President Obama this week.

After the leak in 2005 of a Justice Department memo that narrowly defined the type of activity that would constitute torture, Rice traveled to Europe in an effort to quell the international uproar. As her trip was getting underway, she said, “The United States government does not authorize or condone torture of detainees. Torture, and conspiracy to commit torture, are crimes under U.S. law, wherever they may occur in the world.”

Rice also said at the time that the administration’s policy “will be consistent” with the international convention prohibiting “cruel, inhuman, or degrading treatment.”

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Torture: Holding America to account

April 18, 2009

To read the four newly released Bush-era memos on America’s so-called “enhanced interrogation techniques” for terror suspects is to enter a very dark moral world indeed. It is the Orwellian world of the concealed global detention network set up by the CIA on President Bush’s authority after 9/11 in which suspected terrorists – many of whom may have had a lot of blood on their hands – were secretly held in US bases from Afghanistan to Romania and systematically tortured. A world in which Britain is implicated too, do not forget.

The memos do not admit torture, of course. The United States, Mr Bush famously claimed in 2006, “does not torture”. The memos embody a cynical bureaucratic attempt to align what went on in the secret prisons with that claim. Yet no one who reads their argument that the threat of imminent drowning caused by waterboarding does not reach the level of “prolonged mental harm” which the Bush lawyers argue is necessary to constitute torture, can doubt that torture is precisely what the CIA had been permitted and encouraged to carry out. The truth, as the new US attorney general Eric Holder has said, is clear: “Waterboarding is torture.”

Jaw-dropping though they are, the memos are not the only evidence of the Bush administration’s embrace of torture. Two years ago, the International Committee of the Red Cross (ICRC) was given access to 14 Guantánamo detainees who had been through the “alternative procedures”. Their experiences, retold in two recent essays by Mark Danner in the New York Review of Books (one of which we republish inside our own Review today), tell of the relentless abuse of detainees who were kept naked in low temperatures for weeks, forced to live in permanent bright light (or total darkness), required to wear nappies, deprived of solid food, blindfolded, shackled, forcibly shaved, and compelled to wear earphones through which loud music was repeatedly played.

The “procedures” discussed in the memos – grasping, slapping, holding, banging against walls, confinement in boxes (sometimes with insects), sleep deprivation, prolonged confinement in “stress positions” and waterboarding – were additional to these. The ICRC heard accounts of most of them from the detainees. These accounts are far more graphic (and even credible) than the cold lawyerish prose of the memos. The ICRC conclusion was emphatic: “The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA programme, either singly or in combination, constituted torture.”

America should hang its head at methods that Dick Cheney still defends (and which, importantly, may not have yielded much good intelligence). Barack Obama did the right thing by ending the abuses within hours of taking office. He did well to publish the legal memos too. In such ways Mr Obama makes clear that his administration is making a clean break with the discredited past, while at the same time graphically reminding the world why that past (and Britain’s role in it) was so disgraceful.

On balance Mr Obama may also be right to assure CIA personnel that they will not face prosecution if they carried out their work in good faith based on the old legal advice. But an essential part of the rule of law is that those who break it must be answerable for their actions. The Bush administration crossed a fateful threshold after 9/11. Its officials, including its lawyers, must be accountable for that. It is understandable that Mr Obama does not want his first term to be dominated by a reliving of the past. Yet America will only ensure it does not embrace torture again by getting to the bottom of why it did so this time. A full congressional inquiry is in order, as Speaker Pelosi has hinted. One way or another, those who ordered the abuses, from the president and vice-president down, must answer for them.

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How Bush’s Tortured Legal Logic Won

April 17, 2009

Robert Parry | Consortiumnews.com, April 17, 2009

Almost as disturbing as reading the Bush administration’s approved menu of brutal interrogation techniques is recognizing how President George W. Bush successfully shopped for government attorneys willing to render American laws meaningless by turning words inside out.

The four “torture” memos, released Thursday, revealed not just that the stomach-turning reports about CIA interrogators abusing “war on terror” suspects were true, but that the United States had gone from a “nation of laws” to a “nation of legal sophistry” – where conclusions on law are politically preordained and the legal analysis is made to fit.

You have passages like this in the May 10, 2005, memo by Steven Bradbury, then acting head of the Justice Department’s Office of Legal Counsel:

“Another question is whether the requirement of ‘prolonged mental harm’ caused by or resulting from one of the enumerated predicate acts is a separate requirement, or whether such ‘prolonged mental harm’ is to be presumed any time one of the predicate acts occurs.”

As each phrase in the Convention Against Torture was held up to such narrow examination, the forest of criminal torture was lost in the trees of arcane legal jargon. Collectively, the memos leave a disorienting sense that any ambiguity in words can be twisted to justify almost anything.

So, a “war on terror” prisoner could not only be locked up in solitary confinement indefinitely based on the sole authority of President Bush but could be subjected to a battery of abusive and humiliating tactics, all in the name of extracting some information that purportedly would help keep the United States safe – and it would not be called “torture.”

Some tactics were bizarre, like feeding detainees a liquid diet of Ensure to make “other techniques, such as sleep deprivation, more effective.” The memo’s sleep deprivation clause, in turn, allowed interrogators to shackle prisoners to an overhead pipe (or in some other uncomfortable position) for up to 180 hours (or seven-and-a-half days).

While shackled, the prisoner would be dressed in a diaper that “is checked regularly and changed as necessary.” The memo asserted that “the use of the diaper is for sanitary and health purposes of the detainee; it is not used for the purpose of humiliating the detainee, and it is not considered to be an interrogation technique.”

Beyond the painful disorientation from depriving a person of sleep while chained in a standing position for days, the Justice Department memos called for prisoners to be forced into other “stress positions” for varying periods of time to cause “the physical discomfort associated with muscle fatigue.”

Tiny Boxes

The detainees also could be put into small, dark boxes where they could barely move (and in the case of one detainee, Abu Zubaydah, could have an insect slipped into his box as a way of playing on his fear of bugs), according to the Aug. 1, 2002, memo.

“The duration of confinement varies based upon the size of the container,” the May 10, 2005, memo added, with the smaller space (sitting only) restricted to two hours at a time and a somewhat larger box (permitting standing) limited to eight hours at a time and 18 hours a day.

Then, there were various slaps, grabs and slamming a prisoner against a “flexible” wall while his neck was in a sling “to help prevent whiplash.”

Prisoners also were subjected to forced nudity, sometimes in the presence of women, according to the May 10 memo.

“We understand that interrogators are trained to avoid sexual innuendo or any acts of implicit or explicit sexual degradation,” the memo said. “Nevertheless, interrogators can exploit the detainee’s fear of being seen naked.

“In addition, female officers involved in the interrogation process may see the detainees naked; and for purposes of our analysis, we will assume that detainees subjected to nudity as an interrogation technique are aware that they may be seen naked by females.”

Another approved technique was “water dousing” in which a detainee is sprayed with water that can be as cold as 41 degrees Fahrenheit for up to 20 minutes. Slightly warmer water could be used to douse a prisoner for longer periods of time.

Both the 2002 and 2005 memos permitted the “waterboard,” a technique that involves covering a prisoner’s face with a cloth and pouring water on it to create the panicked sensation of drowning. The interrogators also were authorized to prevent a detainee from trying to “defeat the technique” by thrashing about or trying to breathe from the corner of his mouth.

“The interrogator may cup his hands around the detainee’s nose and mouth to dam the runoff, in which case it would not be possible for the detainee to breathe during the application of the water,” the May 10 memo reads. “In addition, you have informed us that the technique may be applied in a manner to defeat efforts by the detainee to hold his breath by, for example, beginning an application of water as the detainee is exhaling.”

At least since the days of the Spanish Inquisition, waterboarding has been regarded as torture. The U.S. government prosecuted Japanese soldiers who used it against American troops in World War II. But the legal reasoning of the Bush administration’s memos transformed waterboarding into an acceptable method of interrogation.

Lawyer-Shopping

Although the four released memos included the most famous one – from Aug. 1, 2002, which provided the initial legal cover for abusive interrogations – the three others from May 2005 may be more significant in destroying the legal cover that President Bush and his senior aides have hidden behind.

Their claim has been that they were simply operating within legal parameters set by lawyers at the Justice Department’s Office of Legal Counsel, which is responsible for advising Presidents on the limits of their authority. In other words, professional lawyers provided objective legal advice and the administration simply followed it.

But that claim now collides with the reality that other Justice Department lawyers – from 2003 to 2005 – overturned the initial memo and resisted its reimplementation until they were ousted. In effect, the Bush administration appears to have gone lawyer-shopping for attorneys who would craft opinions that the White House wanted.

Assistant Attorney General Jay Bybee signed the original Aug. 1, 2002, “torture” memo and other opinions granting expansive presidential powers (drafted by his deputy John Yoo).

However, Bybee quit in 2003 to accept President Bush’s appointment of him as a federal appeals court judge in San Francisco, and his successor as head of the Office of Legal Counsel, Assistant Attorney General Jack Goldsmith, withdrew many Bybee-Yoo memos as legally flawed.

Goldsmith’s actions angered the White House, particularly Vice President Dick Cheney’s legal counsel David Addington. In a 2007 book, The Terror Presidency, Goldsmith described one White House meeting at which Addington pulled out a 3-by-5-inch card listing the OLC opinions that Goldsmith had withdrawn.

“Since you’ve withdrawn so many legal opinions that the President and others have been relying on,” Addington said sarcastically, “we need you to go through all of OLC’s opinions and let us know which ones you will stand by.”

Though supported by Deputy Attorney General James Comey, Goldsmith succumbed to the White House pressure and quit in 2004. Still, despite Goldsmith’s departure, Comey and the new acting head of the OLC, Daniel Levin, resisted restoring the administration’s right to use the harsh interrogation techniques.

That didn’t occur until White House counsel Alberto Gonzales became Attorney General in 2005 and made Bradbury the acting chief of the OLC. After signing the three “torture” memos in May, Bradbury was rewarded with Bush’s formal nomination in June to be Assistant Attorney General for the OLC (although he never gained Senate confirmation).

Comey Departs

With the OLC reaffirming the administration’s interrogation techniques, Comey’s days were numbered.

Though having been a successful prosecutor on past terrorism cases, such as the Khobar Towers bombing which killed 19 U.S. servicemen in 1996, Comey had earned the derisive nickname from Bush as “Cuomey” or just “Cuomo,” a strong insult from Republicans who deemed former New York Gov. Mario Cuomo to be excessively liberal and famously indecisive.

On Aug. 15, 2005, in his farewell speech, Comey urged his colleagues to defend the integrity and honesty of the Justice Department.

“I expect that you will appreciate and protect an amazing gift you have received as an employee of the Department of Justice,” Comey said. “It is a gift you may not notice until the first time you stand up and identify yourself as an employee of the Department of Justice and say something – whether in a courtroom, a conference room or a cocktail party – and find that total strangers believe what you say next.

“That gift – the gift that makes possible so much of the good we accomplish – is a reservoir of trust and credibility, a reservoir built for us, and filled for us, by those who went before – most of whom we never knew. They were people who made sacrifices and kept promises to build that reservoir of trust.

“Our obligation – as the recipients of that great gift – is to protect that reservoir, to pass it to those who follow, those who may never know us, as full as we got it. The problem with reservoirs is that it takes tremendous time and effort to fill them, but one hole in a dam can drain them.

“The protection of that reservoir requires vigilance, an unerring commitment to truth, and a recognition that the actions of one may affect the priceless gift that benefits all. I have tried my absolute best – in matters big and small – to protect that reservoir and inspire others to protect it.”

Though the full import of Comey’s comments was not apparent at the time, it now appears that he was referring to the legal gamesmanship that Bradbury and others had used to circumvent American laws and traditions to enable the Bush administration to engage in torture.

In releasing the four memos on Thursday, President Barack Obama and Attorney General Eric Holder repeated their rejection of the Bybee-Yoo-Bradbury legal theories, but also stipulated that they would oppose any legal action against the CIA interrogators who abused detainees under the Bush administration’s legal guidance.

Neither Obama nor Holder spoke specifically about possible legal accountability for Bush’s compliant lawyers — or for Bush and his top aides who oversaw the torture policies and picked the lawyers. However, Obama recommended a focus on the future, not the past.

Calling the period covered by the four memos a “dark and painful chapter in our history,” Obama added that “nothing will be gained by spending our time and energy laying blame for the past.”

The lack of accountability for Bush and his lawyers, however, may mean that future Presidents will follow Bush’s lead and assign some clever legal wordsmiths the job of finding ways around criminal statutes, international treaties and the U.S. Constitution.

If legal language can be interpreted any way that a President wishes – and if the U.S. Supreme Court is stocked with like-minded judges – then laws will no longer protect anyone, whether a suspected Middle Eastern terrorist or an American citizen.

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there. Or go to Amazon.com.

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Bush Administration authorized use of insects in interrogations

April 17, 2009
John Byrne | The Raw Story
Published: Thursday April 16, 2009
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The Bush Administration Office of Legal Counsel authorized the Central Intelligence Agency to put insects inside a confinement box as part of the Administration’s “harsh interrogation” practice, as well as throwing detainees into walls, according to memos released by President Barack Obama on Thursday.

Read the full memos here.

“You would like to place Zubadayah in a cramped confinement box with an insect. You have informed us he has a fear of insects,” the Bush White House said.

“As we understand it, no actually harmful insect will be placed in the box. Thus, though the introduction of an insect may produce trepidation in Zubaydah (which we discuss below), it certainly does not cause physical pain.”

But, the memo cautioned, to comply with the law, the CIA “must inform him that the insects will not have a sting that would produce death or severe pain.”

Part of the text beneath a description of the insect torture was redacted.

Time‘s Michael Scherer notes, “The insect interrogation technique, as it turned out, was never used by the CIA, according to a second declassified memo released Thursday. ‘We understand that — for reasons unrelated to any concerns that it might violate the [criminal] statute — the CIA never used the technique and has removed it from the list of authorized interrogation techniques,’ wrote Steven Bradbury, a principal deputy assistant attorney general, in the footnote to a on May 10, 2005 document.”

Detailed description of ‘walling’ detainees

It also provides a detailed description of “walling,” a practice in which detainees were thrown against walls as part of the interrogation process (one detainee said his neck was tied with a towel and thrown against a plywood wall in a recently leaked Red Cross report).

“For walling, a flexible false wall will be constructed. The individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual’s shoulder blades that hit the wall.

“During this motion, the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash. To further reduce the probability of injury, the individual is allowed to rebound from the flexible wall. You have orally informed us that the false wall is in part constructed to create a loud sound when the individual hits it, which will further shock or surprise in the individual. In part, the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action.”

The White House lawyers characterized this practice as “rough handling.”

“While walling involves what might be characterized as rough handling, it does not involve the threat of imminent death or, as discussed above, the infliction of severe physical pain. Moreover, once again we understand that use of this technique will not be accompanied by any specific verbal threat that violence will ensue absent cooperation. Thus, like the facial slap, walling can only constitute a threat of severe physical pain if a reasonable person would infer such a threat from the use of the technique itself. Walling does not in and of itself inflict severe pain or suffering.”

As part of the release of the memos Thursday, the Justice Department said they would provide attorneys to any CIA interrogator who engaged in the practice thinking it was lawful under the aegis of the memo.

According to Newsweek‘s Michael Isikoff, writing earlier this year, former Bush officials may find themselves in hot water over one of the memos released Thursday.

“An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials,” Isikoff wrote. “H. Marshall Jarrett, chief of the department’s ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos ‘was consistent with the professional standards that apply to Department of Justice attorneys.’ According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)”

“The matter is under review,” Justice Department spokesman Matthew Miller is quoted as saying.

Read the full memos here.

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Barack Obama releases documents showing CIA ‘torture’ during Bush-era

April 17, 2009

From Times Online
April 16, 2009

Ankle handcuffs locked to the chair and floor in an interrogation room at Guantanamo Bay

(Haraz Ghanbari/AP)

Mr Obama ruled out prosecutions, saying the US needed a time of reflection, not retribution

Tom Baldwin in Washington

President Obama last night released documents detailing the harsh CIA interrogation techniques that had been kept secret by the Bush Administration as he declared it was time to move beyond “a dark and painful chapter in our history”.

Four memos published yesterday showed that terror suspects had been subjected to tactics such as being slammed against walls wearing a special plastic neck collar, kept awake for up to 11 straight days, simulated drowning known as “waterboarding” and being placed in a dark, cramped box.

The CIA also approved exploiting one detainee’s fear of insects by putting caterpillars in the box with him. Others were kept naked and cold for long periods, denied food, shackled for prolonged periods or had their family threatened.

Many senior figures in the Obama Administration, as well as human rights groups, believe such practices amounted to torture.

Both the President and Attorney General Eric Holder, however, reassured CIA operatives yesterday that those involved in the interrogations would not face criminal prosecution so long as they had adhered the legal advice given to them at the time from the Justice Department. “Nothing will be gained by spending our time and energy laying blame for the past,” said the President. “This is a time for reflection, not retribution.”

CIA Director Leon Panetta told employees that the interrogation practices had been approved at the highest levels of the Bush administration and that they had nothing to fear if they had followed the rules. “You need to be fully confident that as you defend the nation, I will defend you,” he said.

The techniques were used against 14 detainees that the US considered to have high intelligence value after the September 11, 2001, terrorist attacks between 2002 and 2005. These included the alleged al-Qaeda mastermind, Khalid Sheikh Mohammed, who had initially refused to answer questions about other plots against the US.

Bush Adminstration officials believe that the “enhanced interrogations” subsequently used on him helped avert further attacks including one to crash a hijacked airliner into a tower in Los Angeles.

The memos, however, show just how much effort went into the squaring the techniques with the letter, if not the spirit, of international laws against torture. Interrogators were told not to allow a prisoner’s body temperature or food intake to fall below a certain level, because either could cause permanent damage. Passages describing forced nudity, slamming into walls, sleep deprivation and the dousing of detainees with water as cold as 41 degrees were interspersed with complex legal arguments about what constituted torture.

One memo authorised a method for combining multiple techniques, a practice that human rights lawyers claim crosses the line into torture even if any individual methods did not.

Although some sections were still redacted last night, the CIA had unsuccessfully argued for large parts of the documents to be blacked out. Gen Michael Hayden, who led the CIA during the Bush Adminstration, said: “If you want an intelligence service to work for you, they always work on the edge. That’s just where they work.” Foreign partners will be less likely to cooperate with the US because the release shows it “can’t keep anything secret.”

Mr Obama, however, said much of the information had already been widely publicised and it was important to emphasise that the programme no longer exists as it once did. Withholding the memos, he suggested, “could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States”.

The documents were disclosed to meet a court-approved deadline in a legal case brought by the American Civil Liberties Union. “It’s impossible not to be shocked by the contents of these memos,” said ACLU lawyer Jameel Jaffer. “The memos should never have been written, but we’re pleased the new administration has made them public.”

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