Contents: The Sir! No Sir! blog is an information clearing house, drawing on a wide variety of sources, to track the unfolding history of the new GI Movement, and the wars that brought the movement to life.
Where applicable, parallels will be drawn between the new movement and the Vietnam era movement which was the focus of the film Sir! No Sir!
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This press release was posted to the Center for Constitutional Rights Website, October 15, 2009
Today, attorneys filed an appeal before the Louisiana First Circuit Court of Appeal, in the case Dr. Trudy Bond v. Louisiana State Board of Examiners of Psychologists. Toledo-based psychologist Dr. Trudy Bond is calling on the Louisiana State Board of Examiners to investigate Louisiana psychologist and retired U.S. Army colonel Dr. Larry C. James, a former high-ranking advisor on interrogations for the U.S. military in Guantanamo Bay and Abu Ghraib.
According to his own statements, Dr. James played an influential role in both the policy and day-to-day operations of interrogations and detention at the prison camps. Publicly-available information shows that while Dr. James was at Guantanamo, abuse in interrogations was widespread, and cruel and inhuman treatment was official policy.
Allegations of abuse during Dr. James’s January to May 2003 deployment include beatings, religious and sexual humiliation, rape threats and painful body positions. Canadian citizen Omar Khadr, who is still imprisoned in Guantanamo, is one of the prisoners who has alleged brutal treatment in the spring of 2003, when he was only 16 years old. James was also stationed in Iraq’s Abu Ghraib prison in 2004 and returned to Guantanamo in 2007. In 2008, he was named Dean of the School of Professional Psychology at Wright State University in Dayton, Ohio.
In compliance with her ethical obligation to report abuse by other psychologists, in February 2008 Dr. Bond filed a complaint against Dr. James before the Board, the agency that issued and now regulates his psychology license. Dr. Bond alleged that Dr. James breached professional ethics by violating psychologists’ duties to do no harm, to protect confidential information and to obtain informed consent, and she called on the Board to investigate whether action should be taken against Dr. James.
As Chief Psychologist of the Joint Intelligence Group and a senior member of the Behavioral Science Consultation Team (BSCT) at Guantanamo, Dr. James had access to the confidential medical records of people he was charged with exploiting for intelligence. According to former Guantanamo interrogators, BSCTs used information from patients’ records to help interrogators increase the patients’ psychological duress, including by exploiting their fears. The very purpose of these mental health professional teams, the interrogators said, was to help “break” the prisoners. Dr. James denies that claim, but an extensive government paper trail supports the interrogators’ accounts.
The Board summarily refused to investigate Dr. Bond’s complaint, claiming that the statute of limitations had run, despite conclusive information to the contrary. Dr. Bond then filed suit against the Board in Louisiana’s 19th Judicial District Court, which in July 2009 dismissed her case without looking at the merits. Today’s brief before the First Circuit Court in Baton Rouge argues that the District Court should have reviewed the Board’s clearly wrong legal decision.
Said Dr. Bond, “The five psychologists on the Louisiana Board were given plenty of credible evidence, but they chose not to investigate the head intelligence psychologist of prison camps notorious for their use of psychological torture. I don’t think Louisiana lawmakers intended to give five fellow professionals total, unchecked power to make arbitrary decisions that deeply affect the public welfare.”
Said CCR Cooperating Attorney Deborah Popowski, “The Louisiana Board is fighting awfully hard to turn a blind eye to serious allegations of abuse. We wish the Board would devote its resources to investigating unethical conduct instead. Everyone, including the people of Louisiana, would be better served.”
For more information on the involvement of health professionals in torture and abuse visit the Center for Constitutional Rights website http://whenhealersharm.org.
CCR has led the legal battle over Guantanamo for the last six years – sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA “ghost detainee” there. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. In addition, CCR has been working to resettle the approximately 60 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.
This articl;e, by Christopher Flavelle, was posted to Alternet, October 14, 2009.
A few weeks ago, the U.S. District Court for the District of Columbia released a declassified version of a judge’s ruling in the case of Al Rabiah, a Kuwaiti citizen who has been held at Guantanamo for seven years. The judge, Colleen Kollar-Kotelly, found that the government could not credibly support its allegation that Al Rabiah was part of the Taliban or al-Qaida, and that the evidence against him wasn’t sufficient to justify his continued detention. She ordered the government to release Al Rabiah "forthwith."
But the judge’s opinion is more than a legal document; it’s also a window into the interrogation process at Guantanamo and the risk that "enhanced interrogation techniques" will produce false information. Excerpts from the opinion are below; you can also read the whole document. Al Rabiah’s background.
Kollar-Kotelly describes Al Rabiah as a 50-year-old father of four, who graduated from the Air Service Training school at Perth College, Scotland, with a degree in aviation maintenance in 1981. He then went to Kuwait Airways, where he worked until his detention in 2001. At the time Al Rabiah was captured, he was an overweight man in his 40s, with "various medical ailments such as high blood pressure and chronic pain in his neck and lower back]" and no military training, save for two weeks of compulsory training in the Kuwait Army until he was discharged for a knee injury.
Al Rabiah often used his vacations to perform humanitarian work in impoverished or war-torn countries, the judge writes, and it was to perform the same kind of work that he traveled to Afghanistan in October 2001—an explanation that Kollar-Kotelly writes is supported by the evidence. After he tried to leave the country via Iran, whose border guards denied him entry, Al Rabiah tried instead to cross the Pakistani border, but he was captured by villagers and turned over to the Americans, who later transferred him to Guantanamo. The government’s evidence against Al Rabiah was "surprisingly bare."
The government’s case against Al Rabiah initially rested on two main pillars: allegations made against him by fellow detainees and his own confessions. But in the judge’s opinion, neither held any weight.
The judge’s ruling cites four detainees who made allegations against Al Rabiah. The names of his accusers are redacted, as are the specifics of their allegations, but Kollar-Kotelly explains her reasons for rejecting them. The first accuser made statements that were incorrect; the second made statements that changed over time, and which the judge called "demonstrably false"; the third seems to have made statements about someone who was not Al Rabiah; and the fourth made his allegations only after one week of sleep deprivation, exceeding the military’s own guideline prohibiting sleep deprivation for more than four days, "and he did not repeat this allegation either before or after."
Kollar-Kotelly notes that the government itself "withdrew most of its reliance" on the witnesses against Al Rabiah during the course of the trial. She writes that their allegations are unreliable, writing, "the Court finds that none of the alleged eyewitnesses have provided credible allegations against Al Rabiah." However, she calls it "very significant that Al Rabiah’s interrogators apparently believed these allegations at the time they were made, and therefore sought to have Al Rabiah confess to them." That brings her to those confessions. Al Rabiah’s confessions were obtained only after his interrogators began using "aggressive interrogation tactics," at least one of which was apparently used without proper authorization.
Kollar-Kotelly found that Al Rabiah initially denied any involvement with al-Qaida, even after he was told that eyewitnesses had made allegations to the contrary. Al Rabiah’s confessions began only after his interrogators "began using more aggressive interrogation tactics."
At least one of those tactics "did not become authorized by the Secretary of Defense for use at Guantanamo until April 16, 2003." The techniques approved by then-Defense Secretary Donald Rumsfeld on that date included isolation, "dietary manipulation," "attacking or insulting the ego of a detainee" and "environmental manipulation," including "adjusting temperature or introducing an unpleasant smell."
Whatever tactic was initially used by Al Rabiah’s interrogators, they may have broken the Defense Department’s rules in applying it. The judge writes that at least one of the tactics used on Al Rabiah "could not be used on a detainee until ‘the SOUTHCOM Commander ma[de] a determination of ‘military necessity’ and notif[ied] the Secretary in advance’ of its use." According to the judge, "the Government was unable to produce any evidence that [REDACTED] obtained authorization to use the [REDACTED] technique," despite requests from the court to produce that evidence.
Kollar-Kotelly writes that Al Rabiah told the court that he made his confessions "to reduce the abuse meted out by his interrogators ‘to obtain confessions that suited what [they] thought they knew or what they wanted [him] to say.’" According to the judge, Al Rabiah "maintained his confessions over time because ‘the interrogators would continue to abuse [him] anytime [he] attempted to repudiate any of these false allegations.’" The judge found that Al Rabiah’s interrogators supported his belief that if he did not confess, "his life would become increasingly miserable." Al Rabiah’s confessions frustrated his interrogators, leading them to use tactics that violated both the Army Field Manual and the Geneva Conventions.
Instead of making his situation easier, Al Rabiah’s confessions made it worse. The judge writes that once Al Rabiah’s interrogators decided his confessions were implausible, they "became increasingly frustrated … [A]s a result, Al Rabiah’s interrogators began using abusive techniques that violated the Army Field Manual and the 1949 Geneva Convention Relative to the Treatment of Prisoners of War."
The first of those techniques, writes the judge, included "threats of rendition to places where Al Rabiah would either be tortured and/or would never be found "—a violation of the Army Field Manual’s prohibition on "threatening or implying physical or mental torture."
To reinforce those threats, Kollar-Kotelly writes, Al Rabiah’s interrogators put him in the "frequent flier program," which the judge describes elsewhere in her opinion as a technique that "prevented a detainee … from resting due to frequent cell movements." Kollar-Kotelly writes that this technique, like threats of torture, violated  the Army Field Manual and the Geneva Conventions. Indeed, the judge highlights the fact that the Army Field Manual states that such techniques "can induce the source to say what he thinks the interrogator wants to hear."
Kollar-Kotelly writes that Al Rabiah’s lead interrogator "was disciplined for making similar threats during the same period " toward another detainee—one of the ones who was an alleged eyewitness against Al Rabiah, in fact. Al Rabiah was made to believe that he needed to confess in order to go home.
Later in the opinion, Kollar-Kotelly writes that "the evidence in the record suggests that Al Rabiah repeated these confessions in the false belief that it would allow him to return to Kuwait." Al Rabiah didn’t come to that conclusion by accident alone. According to the judge, "there is substantial evidence in the record that Al Rabiah was led to believe that he needed to confess something in order to be eligible to be returned to Kuwait." The judge’s rebuke.
Kollar-Kotelly writes that Al Rabiah’s interrogators repeatedly concluded that his confessions were not believable, and she chides the government for using those confessions as the basis for justifying his continued detention at Guantanamo.
"Far from providing the Court with credible and reliable evidence as the basis for Al Rabiah’s continuous detention," she writes, "the Government asks the Court to simply accept the same confessions that the Government’s own interrogators did not credit."
"If there exists a basis for Al Rabiah’s indefinite detention, it most certainly has not been presented to this Court. Al Rabiah’s petition for habeas corpus is GRANTED."
This ... white paper, published August 31, 2009, after the new release of the May 2004 CIA Inspector General's report, shows that the extent to which American doctors and psychologists violated human rights and betrayed the ethical standards of their professions by designing, implementing, and legitimizing a worldwide torture program is worse than previously known.
A team of PHR doctors authored the white paper, which details how the CIA relied on medical expertise to rationalize and carry out abusive and unlawful interrogations. It also refers to aggregate collection of data on detainees’ reaction to interrogation methods. Physicians for Human Rights is concerned that this data collection and analysis may amount to human experimentation and calls for more investigation on this point. If confirmed, the development of a research protocol to assess and refine the use of the waterboard or other techniques would likely constitute a new, previously unknown category of ethical violations committed by CIA physicians and psychologists. (click here to read original report)
Introduction The version of the 2004 CIA Inspector General’s report released on August 24, 2009 provides greater detail on the central role that health professionals played in the CIA’s torture program and reveals a level of ethical misconduct that had not previously come to light.
The report confirms that the CIA inflicted torture on detainees interrogated while in US custody as part of the agency’s counterterrorism activities and exposes additional interrogation techniques that had not yet been reported. It also demonstrates that health professionals were involved at every stage in the development, implementation and legitimization of this torture program.
The doctors and psychologists who laid the foundation upon which attorneys rationalized an illegal program of torture also actively participated in abusive and illegal interrogations, thus betraying the ethical standards of their professions by contributing to physical and mental suffering and anguish. The very premise of health professional involvement in abusive interrogations — that they have a role in safeguarding detainees — is an unconscionable affront to the profession of medicine.
The Inspector General’s report also reveals that medical professionals were directed to meticulously monitor the waterboarding of detainees to try to improve the technique’s effectiveness, essentially using the detainees as human subjects, a practice that approaches unlawful experimentation.
Physicians for Human Rights (PHR) has prepared the following analysis of the Inspector General’s report, building on the 2007 report by PHR and Human Rights First (HRF), Leave No Marks, which assessed interrogation techniques reported up to that time, which have now been confirmed by the Inspector General’s report. This paper provides an introductory summary of techniques newly described in the Inspector General’s report and then offers a more detailed medical analysis of those techniques. The paper then reviews the various ways health professionals were complicit in enabling the torture regime. Summary of Newly Detailed Techniques
The Inspector General’s report describes several forms of abuse not previously reported that CIA interrogators and contractors implemented, and that from a medical and legal perspective constitute torture. These include:
Mock executions and threatening detainees by brandishing handguns and power drills;
Threatening the detainee with harm to his family members including sexual assault of female family members, and murder of detainee’s children; and
Physical abuse including the application of pressure to the arteries on the sides of a detainee’s neck resulting in near loss of consciousness, and tackling or hard takedowns.
These methods have significant harmful physical and mental health consequences.
The report provides new details about previously reported forms of abuse referred to as “enhanced interrogation techniques”. The harmful health consequences of these forms of torture and abuse have previously been described by PHR, including in the reports Break Them Down, Leave No Marks and Broken Laws, Broken Lives.” (1)
The Inspector General’s report clearly questions the efficacy, ethics and legality of these as well as the previously mentioned “enhanced interrogation techniques”. The report also confirms the theory of a “slippery slope” in interrogation settings, namely that torture by its very nature escalates in the severity and frequency of its use beyond the approved techniques.
Medical Analysis of the Interrogation Techniques Described in the Inspector General’s Report
The adverse physical and mental health effects of stripping (forced nudity), isolation, white noise or loud music, continuous light or darkness (sensory deprivation), temperature manipulation, stress positions, sleep deprivation, attention slap, abdominal slap, stress positions and waterboarding have been previously described in the Physicians for Human Rights and Human Rights First report Leave No Marks. The following medical analysis focuses on techniques not previously reviewed by PHR.
As with the techniques previously analyzed, it is important to understand two key points. First, while the techniques are evaluated individually, these techniques were designed to be used in combination in a way that enhanced pain and stress.
Second, to comprehend the severity of the effects of these techniques, it is essential to consider the context of their use. In terms of both long and short term psychological effect, there is no meaningful equivalence between waterboarding when used as part of survival training of service men who have volunteered and consented to the procedure and who know that they are in an environment where they trust the mock interrogator to protect their safety and may stop the procedure at any time, and waterboarding of a high value detainee in a black site where the detainee is in actual fear for his life and safety. As the Inspector General’s report indicates:
“One of the psychologist/interrogators acknowledged that the Agency’s use of the [waterboarding] technique differed from that used in SERE training and explained that the Agency’s technique is different because it is ‘for real’ and is more poignant and convincing.” (2)
Analysis of New Approved Techniques Revealed in Inspector General’s Report
The additional approved techniques listed in the Inspector General’s report and not previously analyzed by PHR include shaving, hooding, restricted diet, prolonged diapering, “walling” and confinement boxes.
As with the previously reviewed techniques, while these techniques can have harmful physical as well as mental health effects, their chief objective is to produce psychological impact, and their chief risk is prolonged mental pain and suffering. 1. Forced shaving
Forced shaving of the head and beard was alleged by two of the fourteen detainees interviewed by the ICRC for its 2007 report.
Mr. Ramzi Bin-al-Shib alleged that, in his eighth place of detention, first his head was shaved and then some days later his beard was also shaved off. He was particularly distressed by the fact that the people who shaved him allegedly deliberately left some spots and spaces in order to make him look and feel particularly undignified and abused. (3)
In 2007, PHR physicians examined a former US detainee, who reported:
“When they finished hitting me... they shaved my hair. The only hair I had was in the middle. This was only to humiliate me.” (4)
Medical Analysis: Forced shaving obviously carries little risk of physical harm, and is chiefly designed to inflict psychological harm by means of humiliation, both personal and religious. Forced shaving was part of a campaign to sever the sense of self derived from religious belief, and was often accompanied by forced removal of religious articles.
In addition to the violation of cultural and religious taboos, forced shaving constitutes an intrusion into the personal space and bodily integrity of the person, infringing on autonomy and self-control. The combined effects of this type of treatment in combination with other techniques have been associated with long-lasting psychological injury such as posttraumatic stress disorder, anxiety and depression. 2. Hooding
Detainees were blindfolded or hooded to instill in them a sense of fear, disorientation and dependency on their captors.
According to the February 2004 report of the International Committee of the Red Cross (ICRC) on treatment of detainees in Iraq:
Hooding [was] used to prevent people from seeing and to disorient them, and also to prevent them from breathing freely. One, or sometimes two bags, sometimes with an elastic blindfold over the eyes which, when slipped down, further impeded proper breathing. Hooding was sometimes used in conjunction with beatings thus increasing anxiety as to when blows would came. The practice of hooding also allowed the interrogators to remain anonymous and thus to act with impunity. Hooding could last for periods from a few hours to up to 2 to 4 consecutive days, during which hoods were lifted only for drinking, eating or going to the toilets.(5)
PHR reported in Broken Laws, Broken Lives that according to former detainees medically evaluated by PHR, hooding was used both during transportation and during interrogation.
Medical Analysis: When not used in transport, hooding is a form of sensory deprivation aimed at causing dislocation and confusion. Research shows that prolonged sensory deprivation can result in depression, depersonalization and psychosis. According to the ICRC report, hooding, and other observed sensory deprivation techniques resulted in
“signs of concentration difficulties, memory problems, verbal expression difficulties, incoherent speech, acute anxiety reactions, abnormal behavior and suicidal tendencies.”(6)
3. dietary Manipulation
Detainees were deprived of solid food for periods ranging from days to months. Mr. Abu Zubaydah alleged that for a period of two to three weeks during his initial period of interrogation, he was kept sitting on a chair constantly and only provided with liquid Ensure (a nutrient formula) and water. Mr. Binal-Shib reported that he went three to four weeks without solid food, and was only provided with Ensure and water. In addition, six other high-value detainees reported being deprived of solid food for periods ranging from days to weeks. (7) Medical Analysis: While physical risks of a liquid diet are minimal as long as appropriate calories and nutrients are provided, the intent of dietary manipulation is to inflict psychological distress by infringing on the detainee’s sense of autonomy and self control and increasing discomfort and a sense of helplessness and dependency. While the risk of death or debilitation may be minimal, the effects on concentration and mood may be substantial. 4. Prolonged diapering
Detainees were placed in diapers and denied access to a toilet for prolonged periods of time. According to the ICRC Report, high value detainees in CIA custody were placed in diapers for prolonged periods for transport.
The detainee would be made to wear a diaper and dressed in a tracksuit... The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate in the diaper.(8)
he ICRC report states that one of the detainees, Mr. Bin Attash, was compelled to wear a diaper for a prolonged period:
[H]e commented that on several occasions the diaper was not replaced so he had to urinate and defecate on himself while shackled in the prolonged stress standing position. Indeed, in addition to Mr. Bin Attash, three other detainees specified that they had to defecate and urinate on themselves and remain standing in their own body fluids.(9)
Medical Analysis: Prolonged diapering especially when combined with leaving the subject in a diaper soiled with urine and feces can result in both physical and psychological harm. Prolonged exposure of the skin can result in skin infection, skin breakdown and ulceration and urinary tract infections. In addition, the placement of a normally continent adult in a diaper will likely lead to efforts by the adult to resist urination or defecation, which in turn will likely result in bowel cramping and bladder spasm.
Access to toilet is a universally recognized minimum standard for prisoners and detainees. In spite of the physical risks, the chief aim of this technique is to cause psychological stress through humiliation, induced dependency, loss of autonomy, and regression to an infantile state.(10) Like all such techniques, especially when combined with others of the ‘DDD’ type (debility-dependency-dread), these are cumulative and lead to short and long-term debilitation. At Guantánamo, the standard operating procedures included requiring the detainee to ask the interrogator for toilet paper, food, and religious articles. Here, the torturers go even further, returning the detainee to pre-toilet-training levels. When combined with a liquid diet, the experiences of regression, humiliation, and dependency are magnified. 5. Walling
Six of the fourteen high-value detainees interviewed by the ICRC reported being placed in a neck collar or roll and then slammed against a wall. According to the CIA guidelines, slamming against a wall could be used twenty or thirty times consecutively.
During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash. (11)
Although the guidelines require that the wall be a specially constructed flexible one, some detainees alleged that they were also slammed against concrete wall using the collar during transport.(12)
Mr. Bin Attash alleged that during interrogation in Afghanistan:
“on a daily basis during the first two weeks a collar was looped around my neck and then used to slam me against the walls of the interrogation room.” (13)
Medical Analysis: Walling results in blunt trauma and acceleration/deceleration type injuries. Blunt trauma can result in bruises and bleeding from ruptured blood vessels. Studies have observed persistence of musculoskeletal pain cause by blunt trauma even a decade after the trauma has occurred. In rare cases, repeated beating can cause damage to muscle tissue and muscle breakdown resulting in release of muscle enzymes resulting in a life-threatening condition called rhabdomyolisis. In addition, walling can expose the subject to risk of whiplash type injury to the neck and spine. (14)
Psychological stress, which is the primary aim of the procedure, is achieved by use of surprise, generating a startle response, an experience of shock, loss of control and helplessness. Also, rage is engendered which turns to further humiliation, insofar as the detainee cannot fight back. 6. Confinement in a Box
Confinement in a box is a rather extreme version of a stress position with the added potential for claustrophobia.
According to the ICRC report, Abu Zubaydah alleged that in Afghanistan in 2002 he was held in boxes designed to constrain his movement. Mr. Zubaydah stated:
“As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant that my wounds both in the leg and the stomach became very painful.” (15)
He went on to say that a cover was placed over the boxes while he was inside making it hot and difficult to breathe. Medical Analysis: Confinement in a box is an extreme example of stress positions, with the added effect of decreased access to fresh air, temperature changes, light deprivation and isolation. Stress positions have been associated with permanent joint and ligamentous injury, and both acute and prolonged musculoskeletal pain. In addition, use of stress positions following blunt trauma carries the risk of deep vein thrombosis (clotting) and associated and potentially fatal pulmonary emboli. This is not a theoretical risk, as at least two detainees in US Custody in Afghanistan died of pulmonary emboli due to use of stress positions in interrogation settings.(16)
Confinement in a box was devised as a direct appropriation of Martin Seligman’s research on “learned helplessness.” In fact, on at least two occasions, Seligman presented his learned helplessness research to CIA contract interrogators referred to in the Inspector General’s report. In Seligman’s experiment, dogs were confined to boxes in which they discovered that familiar mechanisms of control would no longer have an effect in avoiding pain.
Like their canine counterparts, humans subjected to similar confinement develop psychomotor and cognitive responses that would be clinically diagnosed as depression and, in certain cases, PTSD. Such symptoms include apathy, helplessness, hopelessness, foreshortened sense of future, and a (in this case justified) lack of belief in their ability to affect their future prospects. In Seligman’s experiments, these symptoms were severe and lasting, in that a change to an environment where the dogs could have an effect did not change the symptoms of learned helplessness. (From the DoD’s Joint Personnel Recovery Agency (JPRA) and SERE (Survival, Evasion, Resistance and Escape) Programs.) Unapproved and Improvised Techniques
The Inspector General’s Report contains numerous accounts of interrogation techniques that were not approved for use, including threats with a gun and power drill, threats of harm to loved ones, and choking and carotid artery pressure.
Threats of harm to the detainee or loved ones are reviewed in Leave No Marks. The risks of choking and carotid artery pressure should be self-evident. They include risk of choking death and stroke, as well as high risk of psychological trauma from a near-death experience. Near-death experiences are highly correlated with the risk of developing post traumatic stress disorder. Role of Health Professionals in Torture
Health professionals played central roles in developing, implementing and providing justification for torture.
Health professionals in the Office of Medical Services and psychologist contractors (17) engaged in designing and monitoring harmful interrogation techniques.(18) Such medical participation in torture is a clear violation of medical ethics. Furthermore, health professionals were complicit in selecting and then rationalizing these abusive methods whose safety and efficacy in eliciting accurate information have no valid basis in science. The severe physical and psychological pain and enduring harms associated with these techniques make it evident that they constitute torture and ill treatment. Monitoring of interrogation techniques by medical professionals to determine their effectiveness uses detainees as human subjects without their consent, and thus also approaches unlawful experimentation.(19)
According to CIA guidelines, health professionals including a psychologist and doctor were required to be present during the use of enhanced interrogation techniques.(20) The required presence of health professionals did not make these methods safer, and in fact only served to sanitize their use and enable the abuse to escalate, thereby placing health professionals in the untenable position of calibrating harm rather than serving as protectors and healers as required by their ethical oath.
The report also documents the role of health professionals in participating in initial psychological and physical assessments of detainees in an intake process closely linked to the process of interrogation. By requirement, all interrogations were monitored in real-time by health professionals. Previous reports, including the ICRC report, document allegations that a medical device called a pulse oximeter (a device to measure oxygen saturation in a subject’s blood) was placed on the finger of a detainee to monitor the effectiveness of his respiration during waterboarding.(21) In this way, medical professionals were used to calibrate physical and mental pain and suffering.
Not only were health professionals involved in designing and monitoring the CIA interrogation program, they also played an indirect but essential role in the legal justifications for the program prepared by the Office of Legal Counsel (OLC). The OLC was asked by the CIA whether certain techniques constituted torture under 18 USC §2340 by causing “severe physical or mental pain or suffering.” Since the OLC lawyers had no direct experience of the techniques, they necessarily relied instead on the judgment of health professionals. Yet, in a striking example of bootstrapping, they turned for advice about the pain caused by the techniques to the very health professionals who were implementing them. (22)
In essence, the lawyers were asked if the techniques constituted torture and they replied to the CIA that they only did so if the CIA Office of Medical Services (OMS) informed them that the techniques reached the defined standard of pain. The OMS health professionals obligingly passed on through CIA channels their opinion that the pain was not in fact severe
In an egregious example of this circular process, one OLC memo concludes that waterboarding is not torture because “however frightening the experience may be, OMS personnel have informed us that the waterboard technique is not physically painful.” Scores of similar references to OMS medical judgments about pain and the safeguarding effects of medical monitoring appear throughout the memos. Although OMS did express some concern about some techniques, those objections were limited. Without the cooperation of health professionals in making these assessments, the OLC memos could not have reached the conclusions they did and could not have so easily justified torture.
The intent of the CIA interrogation program was to cause severe psychological distress.(23) Despite citation of unnamed experts who reportedly concluded that these techniques were unlikely to cause significant harm, the notion that these abusive techniques can be used safely has no basis in medical science and is not supported by an extensive peer-reviewed literature.(24) From a medical, scientific and common sense perspective the idea that such abusive and inhumane techniques can be safely deployed is unsupportable. The techniques authorized and deployed have long been documented to cause significant and long lasting psychological pain and suffering including posttraumatic stress disorder, anxiety and major depression.(25) In fact, a recent study demonstrates that abusive techniques employed during captivity which emphasized psychological torture over physical injury, such as psychological manipulation, forms of deprivation, humiliation and stress positions, cause as much mental pain and traumatic stress as does torture designed to inflict physical injury. (26)
The use of these abusive methods violates international human rights standards. The likely illegality of the program was known to the agency and debated within the agency. Those advocating for the use of abusive techniques such as waterboarding should have known that the US had prosecuted these same techniques as torture. Health professionals who were involved in its justification, design and implementation should have known that professional ethics prohibit health professionals from complicity in such harmful acts against prisoners or detainees. It is precisely to avoid such complicity that health professionals have recourse to professional codes of ethics, as well as international standards of medical conduct. Familiarity with these codes – not to mention basic human decency – should preclude such conduct, making clear to health professionals and government institutions both its essentially unethical nature and illegal status under international law.
Not only should interrogators be subject to an investigation of alleged criminal conduct. Health professionals who were involved in this program should be the subject to independent investigation for both criminal and unprofessional conduct. Professionals who have violated professional ethics or the law must be held accountable through criminal prosecution, loss of license and professional society membership, where appropriate. Conclusion
The newly released version of the May 2004 CIA Inspector General’s report on Counterterrorism Detention and Interrogation Activities reveals the use of a number of previously undescribed techniques including:
Confinement in a box
These techniques used alone or in combination may meet the definition of torture under US and international law. Legality aside, they are associated with high risk of physical and psychological harm, including harm that is enduring, in those subjected to these techniques. They also represent clear violations of well-established medical ethics governing the behavior of health professionals.
The report also confirms use of previously reported techniques, covered in the PHR and Human Rights First report Leave No Marks, such as isolation, forced nudity, stress positions, temperature manipulation, waterboarding, and other techniques which were used in ways that violated the torture statute and international law.
The Inspector General’s report confirms much of what had been reported about the essential role played by health professionals in designing, deploying, monitoring and legitimizing the program of torture, but also raises disturbing new questions which require further investigation. The possibility that health professionals monitored techniques to assess and improve their effectiveness, constituting possible unethical human experimentation, urgently needs to be thoroughly investigated.
PHR has long called for full investigation and remedies including accountability for war crimes, and reparation such as compensation, medical care and psycho-social services. PHR also calls for health professionals who have violated ethical standards or the law to be held accountable through criminal prosecution, loss of license and loss of professional society membership where appropriate.
1)Broken Laws, Broken Lives: Medical Evidence of Torture by US Personnel and Its Impact. 2008. Available at: http://brokenlives.info/?page_id=69 ; Break Them Down: Systematic Use of Psychological Torture by US Forces. 2005. Available at: http://physiciansforhumanrights.org/library/report-2005may.html ; Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality 2007. Available at: http://physiciansforhumanrights.org/library/ report-2007-08-02.html. 2) Inspector General’s report p. 37
3) ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody. International Committee of the Red Cross. February 2007. Available at http://www.nybooks.com/icrc-report.pdf.
4. Broken Laws, Broken Lives: Medical Evidence of Torture by US Personnel and Its Impact. 2008. Available at: http://brokenlives.info/?page_id=69. The former detainee’s history was deemed credible by examining physicians. He suffers from symptoms consistent with posttraumatic stress disorder.
5. ICRC Report.
6. ICRC Report.
7. ICRC Report.
8. ICRC Report.
9. ICRC Report.
10. “The purpose of all coercive techniques is to induce psychological regression in the subject by bringing a superior outside force to bear on his will to resist. Regression is basically a loss of autonomy, a reversion to an earlier behavioral level. As the subject regresses, his learned personality traits fall away in reverse chronological order...” (Human Resource Exploitation Manual, CIA, 1983)
11. CIA guidelines as reproduced in Inspector General’s report, p. 15
12. ICRC Report.
13. ICRC Report.
14. Leave No Marks
15. ICRC Report.
16. Allen S. Rich J. Bux R. Farbenblum B. Berns M. Rubenstein L. Deaths of Detainees in the Custody of US Forces in Iraq and Afghanistan from 2002 to 2005. Medscape General Medicine: 2006;8(4):46.
17. From the DoD’s Joint Personnel Recovery Agency (JPRA) and SERE (Survival, Evasion, Resistance and Escape) Programs.
18. “Several months earlier, in late 2001, CIA had tasked an independent contractor psychologist, who had [redacted] experience in the US Air Forces’ Survival, Evasion, resistance, and Escape (SERE) training program, to research and write a paper on Al-Qa’ida’s resistance to interrogation techniques. This psychologist collaborated with a Department of Defense (DoD) psychologist who had [redacted] SERE experience in the US Air Force and DoD to produce the paper “Recognizing and Developing Countermeasures to Al-Qa’ida’s Resistance to Interrogation Techniques: A Resistance Training Perspective.” Subsequently, the two psychologists developed a list of new and more aggressive EIT’s [enhanced interrogation techniques] that they recommended for use in interrogations.” Inspector General’s Report p. 13. “CIA’s OTS obtained data on the use of the proposed EIT’s and their potential long-term psychological effects on detainees. OTS input was based in part on information solicited from a number of psychologist and knowledgeable academics in the area of psychopathology” and “OTS also solicited input from DoD/Joint Personnel Recovery Agency (JPRA) regarding techniques used in SERE training and any subsequent psychological effects on students.” Inspector General’s Report p. 14.
19. The Office of Medical Services guidelines for waterboarding state “A rigid guide to the medically approved use of the waterboard is not possible, as safety will depend on how the water is applied and the specific response each time it is used. The following general guidelines are based on very limited knowledge, drawn from very few subjects whose experience and response was quite varied.” They add “NOTE: In order to best inform future medical judgments and recommendations, it is important that every application of the waterboard be thoroughly documented: how long each application (and the entire procedure) lasted, how much water was applied, if a seal was achieved, if the naso- or oropharynx was filled, what sort of volume was expelled, how long was the break between applications, and how the subject looked between each treatment.”
20. “In 2004, when Daniel B. Levin, then the acting assistant attorney general in the counsel’s office, sent a letter to the CIA reauthorizing waterboarding, he dictated the terms: “no more than two sessions of two hours each, per day, with both a doctor and a psychologist in attendance.” Report Shows Tight CIA Control on Interrogations. Mark Mazzetti and Scott Shane. New York Times, August 26, 2009. Available at: http://www.nytimes.com/2009/08/26/ us/26prison.html?_r=1&hpw
21. ICRC report. Note that the use of a pulse oximeter, and the requirement that an emergency tracheostomy kit be kept ready is even more evidence that the procedure is intentionally harmful, risky and potentially lethal.
22. In certain cases the very same JPRA psychologists who designed the torture and implemented the techniques, and, who, as private contractors, profited from the operation, also provided the research that justified the techniques: “You have informed us that your on-site psychologists, who have extensive experience with the use of the waterboard in Navy training, have not encountered any significant long-term mental health consequences from its use. Your on-site psychologists have also indicated that JPRA has likewise not reported any significant mental health consequences from the use of the waterboard.”
23. CIA Inspector General’s Report. Appendix F. “Captured terrorists turned over to the CIA for interrogation may be subjected to a wide range of legally sanctioned techniques, all of which are also used on US military personnel in SERE training programs. These are designed to psychologically ‘dislocate’ the detainee, maximize his feelings of vulnerability and helplessness, and reduce or eliminate his will to resist our efforts to obtain critical intelligence.” In addition, the sanction techniques include so-called “Standard measures” or those deemed to be without physical or substantial psychological pressure and so-called “Enhanced measures,” or those deemed to cause physical or psychological pressure beyond “Standard measures.” (p. 1). “In all instances, the goal of these techniques is psychological impact...” and are “designed to induce shock, surprise and/or humiliation.” (p. 2).
24. See Leave No Marks and Broken Laws, Broken Lives. Although these reports were published in 2007 and 2008 respectively, they summarized scientific literature that was well established in 2001. In a bizarre justification for the safety of the techniques, the OLC report states, “You have also reviewed the relevant literature and found no empirical data on the effect of these techniques with the exception of sleep-deprivation.” OLC August 1, 2002, p. 6. Yet, there is a large body of research on the effects of these and similar techniques, much of it supported by the CIA. See for example The Search for the Manchurian Candidate (c) 1979 by John Marks. Published by Times Books.
25. PHR and HRF previously reported on the harmful effects of many of these techniques in their report Leave No Marks: Enhanced Interrogation and the Risk of Criminality.
26. BasogluM.etal.Torturevs.OtherCruel,InhumanorDegradingTreatment: Is the Distinction Real or Apparent? Archives Gen. Psychiatry 277 (2007).
This presss release, by Jonathan Hutson, was published by Physicians for Human Rights, August 31, 2009
Cambridge, MA — The extent to which American physicians and psychologists violated human rights and betrayed the ethical standards of their professions by designing, implementing, and legitimizing a worldwide torture program is greater than previously known, according to a report by Physicians for Human Rights (PHR).
A team of PHR doctors authored the new white paper, Aiding Torture: Health Professionals' Ethics and Human Rights Violations Demonstrated in the May 2004 Inspector General's Report. The report details how the CIA relied on medical expertise to rationalize and carry out abusive and unlawful interrogations. It also refers to aggregate collection of data on detainees' reaction to interrogation methods. PHR is concerned that this data collection and analysis may amount to human experimentation and calls for more investigation on this point. If confirmed, the development of a research protocol to assess and refine the use of the waterboard or other techniques would likely constitute a new, previously unknown category of ethical violations committed by CIA physicians and psychologists.
"Medical doctors and psychologists colluded with the CIA to keep observational records about waterboarding, which approaches unethical and unlawful human experimentation," says PHR Medical Advisor and lead report author Scott Allen, MD. For example, "Interrogators would place a cloth over a detainee's face to block breathing and induce feelings of fear, helplessness, and a loss of control. A doctor would stand by to monitor and calibrate this physically and psychologically harmful act, which amounts to torture. It is profoundly unsettling to learn of the central role of health professionals in laying a foundation for US government lawyers to rationalize the CIA's illegal torture program."
The Inspector General's report documents some practices — previously unknown or unconfirmed — that were used to bring about excruciating pain, terror, humiliation, and shame for months on end. These practices included:
Brandishing guns and power drills;
Threats to sexually assault family members and murder children;
"Walling" — repeatedly slamming an unresponsive detainee's head against a cell wall; and
Confinement in a box.
"These unlawful, unethical, and ineffective interrogation tactics cause significant bodily and mental harm," said co-author and PHR Senior Medical Advisor Vincent Iacopino, MD, PhD. "The CIA Inspector General's report confirms that torture escalates in severity and torturers frequently go beyond approved techniques."
"The required presence of health professionals did not make interrogation methods safer, but sanitized their use, escalated abuse, and placed doctors and psychologists in the untenable position of calibrating harm rather than serving as protectors and healers. The fact that psychologists went beyond monitoring, and actually designed and implemented these abuses – while simultaneously serving as 'safety monitors' – reveals the ethical bankruptcy of the entire program," stated co-author Steven Reisner, PhD, PHR's Psychological Ethics Advisor.
"That health professionals who swear to oaths of healing so abused the sacred trust society places in us by instigating, legitimizing and participating in torture, is an abomination," states co-author Allen Keller, MD, Director of the Bellevue/NYU Program for Survivors of Torture. "Health professionals who aided torture must be held accountable by professional associations, by state licensing boards, and by society. Accountability is essential to maintain trust in our professions and to end torture, which scars bodies and minds, leaving survivors to endure debilitating injuries, humiliating memories and haunting nightmares."
PHR has called for full investigation and remedies, including accountability for war crimes, and reparation, such as compensation, medical care and psycho-social services. PHR also calls for health professionals who have violated ethical standards or the law to be held accountable through criminal prosecution, loss of license and loss of professional society membership where appropriate.
To download PHR's Aiding Torture, visit http://physiciansforhumanrights.org/library/news-2009-08-31.html.
Since 2005, PHR has documented the systematic use of psychological and physical torture by US personnel against detainees held at Guantánamo Bay, Abu Ghraib, Bagram airbase, and elsewhere in its groundbreaking reports, Break Them Down, Leave No Marks, and Broken Laws, Broken Lives.
This article, by Peter Bergen, was posted to Foriegn Policy, August 28, 2009
Since he left office, former U.S. Vice President Dick Cheney has been waging a lonesome jihad to defend the practices of the Bush administration during the "war on terror," saying in an emblematic interview in February: "If it hadn't been for what we did -- with respect to the terrorist surveillance program, or enhanced interrogation techniques for high-value detainees, the Patriot Act, and so forth -- then we would have been attacked again. ... Those policies we put in place, in my opinion, were absolutely crucial to getting us through the last seven-plus years without a major-casualty attack on the U.S."
In a speech he gave three months later at the right-wing American Enterprise Institute (AEI) in Washington, Cheney said, "In top secret meetings about enhanced interrogations, I made my own beliefs clear. I was and remain a strong proponent of our enhanced interrogation program."
Cheney gave this speech at AEI the very same day that President Barack Obama, just a couple of miles away at the National Archives, was giving his own major speech on his administration's revamped detention and interrogation policies. Giving such a dueling policy speech was something of a first for a just-stepped-down vice president, a job that is generally supposed to entail a comfortably obscure retirement fly-fishing and attending rubber-chicken fundraisers.
But Cheney did not go gently into that vice presidential night. At AEI Cheney amped up his own sky-is-falling rhetoric, claiming that the coercive interrogations of al Qaeda detainees had "prevented the violent death of thousands, if not hundreds of thousands, of innocent people." Holy smokes!
Cheney's AEI speech was essentially a remix of the arguments that he had made in the run-up to the Iraq war: that if only ordinary American citizens had seen the top secret information he had access to, they would be even more alarmed than he was. And the Bush administration had only prudently taken every measure necessary to keep Americans safe.
Hiding behind a wall of classification has been a quintessential Cheney trope. But that wall just crumbled.
On Monday Cheney released a statement -- first reported through the reliably unchallenging conduit of The Weekly Standard's Stephen Hayes, who was also the amanuensis of Cheney's authorized biography -- in which the former vice president once again defended the Bush administration's record on the coercive interrogations of al Qaeda members, stating that CIA documents declassified earlier this week "clearly demonstrate that the individuals subjected to Enhanced Interrogation Techniques provided the bulk of intelligence we gained about al Qaeda. This intelligence saved lives and prevented terrorist attacks."
Those documents include two CIA assessments from 2004 and 2005 of the information derived from what the U.S. government terms its "high-value detainees." Cheney had pressed the agency to release those assessments because he said that they would substantiate his claims that coercive measures on al Qaeda prisoners had kept the United States safe.
So what do the newly released CIA documents show, in combination with the other records on the matter that are already in the public domain?
The first al Qaeda member to be subjected to "enhanced interrogation techniques" -- an Orwellian locution we can simplify to coercive interrogation -- was Abu Zubaydah, a Palestinian al Qaeda logistician in his early 30s at the time. Abu Zubaydah was captured in March 2002 in a shootout in Faisalabad, Pakistan, in which he was shot three times and critically wounded. So grave was his condition that the CIA arranged for a leading surgeon from the Johns Hopkins medical center in Baltimore to fly to Pakistan to save his life.
Abu Zubaydah was the subject of intense interest from U.S. officials as they believed he was the first al Qaeda insider whom they could interrogate who might know what form the next terrorist attack could take. And so Abu Zubaydah was the first prisoner to be placed in a secret overseas CIA prison, this one located in Thailand.
There Abu Zubaydah was interrogated by Ali Soufan, one of the FBI's few Arabic-speaking agents. Abu Zubaydah described Khalid Sheikh Mohammed, al Qaeda's operational commander, as the mastermind of the September 11 terrorist attacks, and he confirmed that Mohammed's alias was "Mukhtar," an important clue in helping to track him down.
Abu Zubaydah's confirmation of Mohammed's role in the attacks on New York and Washington was arguably the single-most important piece of information uncovered about al Qaeda after 9/11, and it was discovered during the course of a standard interrogation without recourse to any form of coercion. Soufan told Newsweek, "We were able to get the information about Khalid Sheikh Mohammed in a couple of days."
Abu Zubaydah also described an al Qaeda wannabe whose physical description jibed with that of Jose Padilla, an American small-time hood who would be arrested at Chicago's O'Hare International Airport in May 2002 and who was supposedly planning to detonate a radiological "dirty bomb" in the United States. Again, the information about Padilla was provided by Abu Zubaydah without coercive measures being applied.
Later, over Soufan's vociferous objections, a CIA contractor stepped in to take over Abu Zubaydah's interrogations. The FBI's standard, noncoercive techniques were jettisoned, and Abu Zubaydah was stripped naked, deprived of sleep, subjected to loud noise and wide variations in temperature, and later waterboarded 83 times, a form of simulated drowning generally considered torture.
In the end, the multiple waterboardings of Abu Zubaydah provided no specific leads on any plots, according to the just-released CIA documents, though clearly his role as an al Qaeda logistician gave him insights into the organization and its personnel that were useful to the agency. There is no reason, however, to think that any of those insights could not have been garnered by standard interrogation techniques.
Following his March 2003 arrest in Pakistan, al Qaeda's chief of operations, Khalid Sheikh Mohammed (KSM), was also subjected to intensive coercive measures. KSM was taken to a secret CIA prison in northern Poland where he initially proved resistant to interrogation. In the words of the 2004 CIA inspector general's report on detainees that was also released this week, "Khalid Shaykh Muhammad, an accomplished resistor, provided only a few intelligence reports prior to the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate, or incomplete."
Following his defiance, KSM was subjected to a number of coercive interrogation techniques including being waterboarded 183 times and being told that his children -- who were then being held in American and Pakistani custody -- would be killed. KSM then provided a wealth of information about al Qaeda's inner workings as well as details about past and future plots, much of which was detailed in the footnotes of the 9/11 Commission Report.
One such plot KSM offered up was a plan to attack London's Heathrow Airport in 2003 using hijacked commercial jets. But, as Peter Clarke, Britain's chief counterterrorism official at the time says, "It wasn't at an advanced stage in the sense that there were people here in the U.K. doing it. If they had been, I'd have arrested them." The "Heathrow plot" was, in other words, just talk.
The 2004 CIA report, titled "Khalid Shaykh Muhammad: Preeminent Source On Al-Qa'ida," stated that "reporting from KSM has greatly advanced our understanding of al-Qa'ida's anthrax program," in particular about the role of a Malaysian scientist named Yazid Sufaat who was recruited by al Qaeda to research biological weapons. Sufaat, a biochemistry graduate of California State University, Sacramento, set up Green Laboratory Medicine Company for al Qaeda in southern Afghanistan in 2001 as a front company through which it was hoped that the terrorist group would acquire anthrax and other biological agents that could be used as weapons.
But what the CIA did not say in its 2004 report is that Sufaat was never able to buy or produce the right strain of anthrax suitable for a weapon. And so though KSM might have helped the CIA understand something of al Qaeda's anthrax program, either he had little understanding of the science of biological weapons, and/or agency officials who wrote the report were also similarly handicapped. In fact, al Qaeda's anthrax program was a big dud that never produced anything remotely threatening, a point that the CIA report is silent on.
An important piece of information that KSM did divulge, according to the 2004 CIA assessment, was "the crucial first link in the chain that led us to the capture" of a man named Hambali, whose real name is Riduan Isamuddin and who was the interface between al Qaeda and its Southeast Asian affiliate, Jemaah Islamiyah. Hambali was the mastermind of the October 2002 bombings of two nightclubs in Bali, Indonesia, that killed about 200, many of them Western tourists. According to the CIA, Hambali's capture also led to the arrest of "more than a dozen Southeast Asian operatives slated for attacks against the US homeland."
A 2005 top secret memo by the Justice Department's Office of Legal Counsel that was released by the Obama administration in April points out that KSM only gave up his plans for a "Second Wave" of attacks on the United States after he had been subjected to "enhanced techniques," i.e. waterboarding and the like.
But did KSM's coerced interrogations really lead to any substantive plots against the American homeland being averted? The short answer is no
A document that the U.S. government released back in 2006 around the same time that KSM was transferred out of his secret CIA prison to the prison camp at Guantánamo Bay, Cuba, offered details on the plots he had hatched against the United States:
KSM launched several plots targeting the US Homeland, including a plot in late 2001 to have ... suicide operatives hijack a plane over the Pacific and crash it into a skyscraper on the US West Coast; a plan in early 2002 to send al-Qa'ida operatives to conduct attacks in the U.S.; and a plot in early 2003 to employ a network of Pakistanis ... to smuggle explosives into New York and to target gas stations, railroad tracks, and a bridge in New York.
The newly released CIA documents merely rehash the range of anti-American plots cooked up by KSM that the government had already made public three years ago. And though this second wave of attacks all sounded very frightening, there is no indication that these plots, like the plan to attack Heathrow, were ever more than just talk.
The chances of success, for instance, of al Qaeda's plan to attack the skyscraper on the West Coast -- since identified as Los Angeles' 73-story Library Tower, now known as the U.S. Bank Tower -- were described by KSM in one court document to be "dismal." KSM also explained in the same document that the second wave of al Qaeda attacks on the United States was put on the "back burner" after 9/11.
The CIA inspector general's report on al Qaeda detainees also concluded that based on a review of KSM's plots aimed at the United States, it "did not uncover any evidence that these plots were imminent," but it did find that KSM "provided information that helped lead to the arrests of terrorists including Sayfullah Paracha and his son Uzair Paracha, businessmen who Khalid Shaykh Muhammad planned to use to smuggle explosives into the United States; Saleh Almari, a sleeper operative in New York; and Majid Khan, an operative who could enter the United States easily and was tasked to research attacks [redacted]. Khalid Shaykh Muhammad's information also led to the investigation and prosecution of Iyman Faris, the truck driver arrested in early 2003 in Ohio."
The man identified by the CIA inspector general as "Saleh Almari, a sleeper operative in New York" who KSM supposedly gave up to his interrogator appears, in fact, to be Ali Saleh Kahlah al-Marri, who was arrested on Dec. 12, 2001, in Peoria, Ill., a year and a half before KSM was captured.
The Parachas are a father-and-son team; the former, arrested in Thailand in the summer of 2003, is being held at Guantánamo and has yet to face trial, while his son was convicted in 2005 of providing "material support" to al Qaeda.
Majid Khan was arrested in Pakistan only four days after KSM was captured, suggesting that this lead came not from interrogations but from KSM's computers and cell phones that were picked up when he was captured.
Of the terrorists, alleged and otherwise, cited by the CIA inspector general as being fingered by KSM during his coercive interrogations, only Ohio truck driver Iyman Faris was an actual al Qaeda foot soldier living in the United States who had serious intention to wreak havoc. However, he was not much of a competent terrorist: In 2002 he researched the feasibility of bringing down the Brooklyn Bridge by using a blowtorch, an enterprise akin to demolishing the Empire State Building with a firecracker.
If that was the most threatening plot the United States could discover by waterboarding the most senior al Qaeda member in U.S. custody, it was thin stuff indeed. And when English journalist David Rose asked FBI Director Robert Mueller last year whether he was aware of any attacks on the United States that had been disrupted thanks to intelligence obtained through "enhanced techniques," Mueller replied: "I don't believe that has been the case."
The CIA inspector general also arrived at a similar conclusion when he judged that "it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks," which was the supposed standard necessary for the imposition of coercive measures on the al Qaeda prisoners in the first place.
Historians will likely judge that the putative intelligence gains made by abusive interrogation techniques were easily outweighed by the damage they caused to the United States' moral standing. That is certainly the view of Adm. Dennis Blair, the director of national intelligence, who said in an April 2009 statement, "These techniques have hurt our image around the world. ... The damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security." Quite.
This article, by Scott Shane, was published by the New York Times, August 11, 2009
WASHINGTON — Jim Mitchell and Bruce Jessen were military retirees and psychologists, on the lookout for business opportunities. They found an excellent customer in the Central Intelligence Agency, where in 2002 they became the architects of the most important interrogation program in the history of American counterterrorism.
They had never carried out a real interrogation, only mock sessions in the military training they had overseen. They had no relevant scholarship; their Ph.D. dissertations were on high blood pressure and family therapy. They had no language skills and no expertise on Al Qaeda.
But they had psychology credentials and an intimate knowledge of a brutal treatment regimen used decades ago by Chinese Communists. For an administration eager to get tough on those who had killed 3,000 Americans, that was enough.
So “Doc Mitchell” and “Doc Jessen,” as they had been known in the Air Force, helped lead the United States into a wrenching conflict over torture, terror and values that seven years later has not run its course.
Dr. Mitchell, with a sonorous Southern accent and the sometimes overbearing confidence of a self-made man, was a former Air Force explosives expert and a natural salesman. Dr. Jessen, raised on an Idaho potato farm, joined his Air Force colleague to build a thriving business that made millions of dollars selling interrogation and training services to the C.I.A.
Seven months after President Obama ordered the C.I.A. interrogation program closed, its fallout still commands attention. In the next few weeks, Attorney General Eric H. Holder Jr. is expected to decide whether to begin a criminal torture investigation, in which the psychologists’ role is likely to come under scrutiny. The Justice Department ethics office is expected to complete a report on the lawyers who pronounced the methods legal. And the C.I.A. will soon release a highly critical 2004 report on the program by the agency’s inspector general.
Col. Steven M. Kleinman, an Air Force interrogator and intelligence officer who knows Dr. Mitchell and Dr. Jessen, said he thought loyalty to their country in the panicky wake of the Sept. 11 attacks prompted their excursion into interrogation. He said the result was a tragedy for the country, and for them.
“I feel their primary motivation was they thought they had skills and insights that would make the nation safer,” Colonel Kleinman said. “But good persons in extreme circumstances can do horrific things.”
For the C.I.A., as well as for the gray-goateed Dr. Mitchell, 58, and the trim, dark-haired Dr. Jessen, 60, the change in administrations has been neck-snapping. For years, President George W. Bush declared the interrogation program lawful and praised it for stopping attacks. Mr. Obama, by contrast, asserted that its brutality rallied recruits for Al Qaeda; called one of the methods, waterboarding, torture; and, in his first visit to the C.I.A., suggested that the interrogation program was among the agency’s “mistakes.”
The psychologists’ subsequent fall from official grace has been as swift as their rise in 2002. Today the offices of Mitchell Jessen and Associates, the lucrative business they operated from a handsome century-old building in downtown Spokane, Wash., sit empty, its C.I.A. contracts abruptly terminated last spring.
With a possible criminal inquiry looming, Dr. Mitchell and Dr. Jessen have retained a well-known defense lawyer, Henry F. Schuelke III. Mr. Schuelke said they would not comment for this article, which is based on dozens of interviews with the doctors’ colleagues and present and former government officials.
In a brief e-mail exchange in June, Dr. Mitchell said his nondisclosure agreement with the C.I.A. prevented him from commenting. He suggested that his work had been mischaracterized.
“Ask around,” Dr. Mitchell wrote, “and I’m sure you will find all manner of ‘experts’ who will be willing to make up what you’d like to hear on the spot and unrestrained by reality.” A Career Shift
At the time of the Sept. 11 attacks, Dr. Mitchell had just retired from his last military job, as psychologist to an elite special operations unit in North Carolina. Showing his entrepreneurial streak, he had started a training company called Knowledge Works, which he operated from his new home in Florida, to supplement retirement pay.
But for someone with Dr. Mitchell’s background, it was evident that the campaign against Al Qaeda would produce opportunities. He began networking in military and intelligence circles where he had a career’s worth of connections.
He had grown up poor in Florida, Dr. Mitchell told friends, and joined the Air Force in 1974, seeking adventure. Stationed in Alaska, he learned the art of disarming bombs and earned bachelor’s and master’s degrees in psychology.
Robert J. Madigan, a psychology professor at the University of Alaska who had worked closely with him, remembered Dr. Mitchell stopping by years later. He had completed his doctorate at the University of South Florida in 1986, comparing diet and exercise in controlling hypertension, and was working for the Air Force in Spokane.
“I remember him saying they were preparing people for intense interrogations,” Dr. Madigan said.
Military survival training was expanded after the Korean War, when false confessions by American prisoners led to sensational charges of communist “brainwashing.” Military officials decided that giving service members a taste of Chinese-style interrogation would prepare them to withstand its agony.
Air Force survival training was consolidated in 1966 at Fairchild Air Force Base in the parched hills outside Spokane. The name of the training, Survival, Evasion, Resistance, Escape, or SERE, suggests its breadth: airmen and women learn to live off the land and avoid capture, as well as how to behave if taken prisoner.
In the 1980s, Dr. Jessen became the SERE psychologist at the Air Force Survival School, screening instructors who posed as enemy interrogators at the mock prison camp and making sure rough treatment did not go too far. He had grown up in a Mormon community with a view of Grand Teton, earning a doctorate at Utah State studying “family sculpting,” in which patients make physical models of their family to portray emotional relationships.
Dr. Jessen moved in 1988 to the top psychologist’s job at a parallel “graduate school” of survival training, a short drive from the Air Force school. Dr. Mitchell took his place.
The two men became part of what some Defense Department officials called the “resistance mafia,” experts on how to resist enemy interrogations. Both lieutenant colonels and both married with children, they took weekend ice-climbing trips together.
While many subordinates considered them brainy and capable leaders, some fellow psychologists were more skeptical. At the annual conference of SERE psychologists, two colleagues recalled, Dr. Mitchell offered lengthy put-downs of presentations that did not suit him.
At the Air Force school, Dr. Mitchell was known for enforcing the safety of interrogations; it might surprise his later critics to learn that he eliminated a tactic called “manhandling” after it produced a spate of neck injuries, a colleague said.
At the SERE graduate school, Dr. Jessen is remembered for an unusual job switch, from supervising psychologist to mock enemy interrogator.
Dr. Jessen became so aggressive in that role that colleagues intervened to rein him in, showing him videotape of his “pretty scary” performance, another official recalled.
Always, former and current SERE officials say, it is understood that the training mimics the methods of unscrupulous foes.
Mark Mays, the first psychologist at the Air Force school, said that to make the fake prison camp realistic, officials consulted American P.O.W.’s who had just returned from harrowing camps in North Vietnam.
“It was clear that this is what we’d expect from our enemies,” said Dr. Mays, now a clinical psychologist and lawyer in Spokane. “It was not something I could ever imagine Americans would do.” Start of the Program
In December 2001, a small group of professors and law enforcement and intelligence officers gathered outside Philadelphia at the home of a prominent psychologist, Martin E. P. Seligman, to brainstorm about Muslim extremism. Among them was Dr. Mitchell, who attended with a C.I.A. psychologist, Kirk M. Hubbard.
During a break, Dr. Mitchell introduced himself to Dr. Seligman and said how much he admired the older man’s writing on “learned helplessness.” Dr. Seligman was so struck by Dr. Mitchell’s unreserved praise, he recalled in an interview, that he mentioned it to his wife that night. Later, he said, he was “grieved and horrified” to learn that his work had been cited to justify brutal interrogations.
Dr. Seligman had discovered in the 1960s that dogs that learned they could do nothing to avoid small electric shocks would become listless and simply whine and endure the shocks even after being given a chance to escape.
Helplessness, which later became an influential concept in the treatment of human depression, was also much discussed in military survival training. Instructors tried to stop short of producing helplessness in trainees, since their goal was to strengthen the spirit of service members in enemy hands.
Dr. Mitchell, colleagues said, believed that producing learned helplessness in a Qaeda interrogation subject might ensure that he would comply with his captor’s demands. Many experienced interrogators disagreed, asserting that a prisoner so demoralized would say whatever he thought the interrogator exp
At the C.I.A. in December 2001, Dr. Mitchell’s theories were attracting high-level attention. Agency officials asked him to review a Qaeda manual, seized in England, that coached terrorist operatives to resist interrogations. He contacted Dr. Jessen, and the two men wrote the first proposal to turn the enemy’s brutal techniques — slaps, stress positions, sleep deprivation, wall-slamming and waterboarding — into an American interrogation program.
By the start of 2002, Dr. Mitchell was consulting with the C.I.A.’s Counterterrorist Center, whose director, Cofer Black, and chief operating officer, Jose A. Rodriguez Jr., were impressed by his combination of visceral toughness and psychological jargon. One person who heard some discussions said Dr. Mitchell gave the C.I.A. officials what they wanted to hear. In this person’s words, Dr. Mitchell suggested that interrogations required “a comparable level of fear and brutality to flying planes into buildings.”
By the end of March, when agency operatives captured Abu Zubaydah, initially described as Al Qaeda’s No. 3, the Mitchell-Jessen interrogation plan was ready. At a secret C.I.A. jail in Thailand, as reported in prior news accounts, two F.B.I agents used conventional rapport-building methods to draw vital information from Mr. Zubaydah. Then the C.I.A. team, including Dr. Mitchell, arrived.
With the backing of agency headquarters, Dr. Mitchell ordered Mr. Zubaydah stripped, exposed to cold and blasted with rock music to prevent sleep. Not only the F.B.I. agents but also C.I.A. officers at the scene were uneasy about the harsh treatment. Among those questioning the use of physical pressure, according to one official present, were the Thailand station chief, the officer overseeing the jail, a top interrogator and a top agency psychologist.
Whether they protested to C.I.A. bosses is uncertain, because the voluminous message traffic between headquarters and the Thailand site remains classified. One witness said he believed that “revisionism” in light of the torture controversy had prompted some participants to exaggerate their objections.
As the weeks passed, the senior agency psychologist departed, followed by one F.B.I. agent and then the other. Dr. Mitchell began directing the questioning and occasionally speaking directly to Mr. Zubaydah, one official said.
In late July 2002, Dr. Jessen joined his partner in Thailand. On Aug. 1, the Justice Department completed a formal legal opinion authorizing the SERE methods, and the psychologists turned up the pressure. Over about two weeks, Mr. Zubaydah was confined in a box, slammed into the wall and waterboarded 83 times.
The brutal treatment stopped only after Dr. Mitchell and Dr. Jessen themselves decided that Mr. Zubaydah had no more information to give up. Higher-ups from headquarters arrived and watched one more waterboarding before agreeing that the treatment could stop, according to a Justice Department legal opinion. Lucrative Work
The Zubaydah case gave reason to question the Mitchell-Jessen plan: the prisoner had given up his most valuable information without coercion.
But top C.I.A. officials made no changes, and the methods would be used on at least 27 more prisoners, including Khalid Shaikh Mohammed, who was waterboarded 183 times.
The business plans of Dr. Mitchell and Dr. Jessen, meanwhile, were working out beautifully. They were paid $1,000 to $2,000 a day apiece, one official said. They had permanent desks in the Counterterrorist Center, and could now claim genuine experience in interrogating high-level Qaeda operatives.
Dr. Mitchell could keep working outside the C.I.A. as well. At the Ritz-Carlton in Maui in October 2003, he was featured at a high-priced seminar for corporations on how to behave if kidnapped. He created new companies, called Wizard Shop, later renamed Mind Science, and What If. His first company, Knowledge Works, was certified by the American Psychological Association in 2004 as a sponsor of continuing professional education. (A.P.A. dropped the certification last year.)
In 2005, the psychologists formed Mitchell Jessen and Associates, with offices in Spokane and Virginia and five additional shareholders, four of them from the military’s SERE program. By 2007, the company employed about 60 people, some with impressive résumés, including Deuce Martinez, a lead C.I.A. interrogator of Mr. Mohammed; Roger L. Aldrich, a legendary military survival trainer; and Karen Gardner, a senior training official at the F.B.I. Academy.
The company’s C.I.A. contracts are classified, but their total was well into the millions of dollars. In 2007 in a suburb of Tampa, Fla., Dr. Mitchell built a house with a swimming pool, now valued at $800,000.
The psychologists’ influence remained strong under four C.I.A. directors. In 2006, in fact, when Secretary of State Condoleezza Rice and her legal adviser, John B. Bellinger III, pushed back against the C.I.A.’s secret detention program and its methods, the director at the time, Michael V. Hayden, asked Dr. Mitchell and Dr. Jessen to brief State Department officials and persuade them to drop their objections. They were unsuccessful.
By then, the national debate over torture had begun, and it would undo the psychologists’ business.
In a statement to employees on April 9, Leon E. Panetta, President Obama’s C.I.A. director, announced the “decommissioning” of the agency’s secret jails and repeated a pledge not to use coercion. And there was another item: “No C.I.A. contractors will conduct interrogations.”
Agency officials terminated the contracts for Mitchell Jessen and Associates, and the psychologists’ lucrative seven-year ride was over. Within days, the company had vacated its Spokane offices. The phones were disconnected, and at neighboring businesses, no one knew of a forwarding address.
On March 4, 2009 Specialist Terry C. Holdbrooks Jr. approached The Guantánamo Testimonials Project wishing to tell about his experience in Guantánamo, where he served as a guard from June 2003 through July 2004. We are grateful to Spc. Holdbrooks for his testimony, which comes in the form of the interview below.
In the interview we learn about many instances of abuse. But also of cases in which abuse could have happened but in fact didn't. Spc. Holdbrooks informs us, for example, that he knows of no beatings outside IRFings, of no instances of sexual abuse, and of no form of medical abuse. In fact, he mentions the compassion of medical personnel. He also points out that minors were treated far better than the rest of the population, that food was adequate, both in quantity and quality, and that detainees were not harassed during their transport home.
As to the abuse he witnessed, we learn of the guards' lack of training in corrections or the Geneva Conventions, the instilling of hatred towards the detainees, the lack of useable standard operating procedures, the guards spitting into the food or drink served to detainees, the collective punishment of the detainees (to create peer pressure to comply), the abusive use of pepper spray on the detainees, the various forms of religious abuse, including intentionally tossing Korans into toilets (to retaliate against or rile up the detainees), details about the various forms of positional torture (stress positions), observations about the use of temperature and noise extremes (and the role this played in interrogation), the use of fake menstrual blood on a detainee in the course of his interrogation, the common use of sleep deprivation on the detainees, the threats to kill detainees' relatives, the practice of letting detainees soil themselves (and depriving them of a change of clothes), and the sensory deprivation on detainees as they were being returned to their home countries. He also described an all-out detainee riot that lasted 21 hours.We interviewed Spc. Holdbrooks from March 4 to May 8, 2009.
We were told that we should hate them… and that if you don't hate these people, then you are one of them. (Spc. Terry C. Holdbrooks, Jr)
Why don't you begin by telling us where you were born and grew up?
I was born here in Phoenix, and grew up mostly here. I lived for three years with my biological parents in Vegas, but was back in Phoenix just before I turned 7--I believe.
When and why did you enroll in the military?
I enlisted into the military on August 22, 2002. Why? Simply because I was tired of not doing anything important or specific with my life. I wanted to amount to more than my parents had (being that I am the only of the three to graduate from high school). I wanted to go on to trade school and College afterwards. The army seemed to be a great idea: travel, culture, training, guns, war, fun… It's what most non-worldly American youth would want to do: play GI Joe and get paid for it. If I had put forth the effort to attain more worldly knowledge and awareness, I probably would've went with the Peace Corps instead, and would've never been to GTMO or watched my life go further astray from where I wanted to take it. But Allah has a plan for us all, so this is the way it should be. You said "Allah has a plan for us all". Were you raised a Muslim in Phoenix? No. I was not raised in any type of religious family. In turn this provoked me to have a greater concern in faith and religion in my studies, so that I would know more and be able to relate to people about their faith and feelings (or their ridicule and put downs, as my mind frame was in my youth). Let's come back to this later. In the meantime, tell me a little about your training when you joined the military. My training was very standard Military Police training, no corrections training. We received a two-week crash course--emphasis on crash course--for corrections before going to GTMO.
Did you receive any training there on the Geneva Conventions or on the treatment of prisoners of war? Negative. To the best of my memory. I seem to recall a brief crash course in regards to POW status and how that is supposed to go. But, otherwise, no. Not really. Not that I can recall. Geneva Convention wasn't that big of an emphasis either. Was GTMO your first assignment? GTMO was my first assignment, Fort Leonard Wood was always my duty station, and GTMO was my first deployment. There was none that followed. Can you describe your arrival in GTMO? I arrived in Guantanamo in June 2003, and stayed through July 2004. When we got off the plane, I seem to remember being in civilian clothes. We spent a week in a shacky town of sorts, adjusting to the weather and OJT (or on the job training). After that, it was all in or nothing. There was an issue with finding us housing at first. Either way, it was sort of a shock at first. Things were hectic, and didn't seem to be working smoothly. We had a rough transition with in-processing and getting adjusted to the environment. What were you told about the detainees? That these are the worst of the worst. That they are evil. That we should hate them. That these people hate America. That this is why 9/11 happened, and that if you don't hate these people, then you are one of them.
Were you given any Standard Operating Procedures (or SOP) manual? Negative. There was really no such SOP, as it was constantly at work and being updated. With the administration we had at the time changing the policies, there was really no way to create one that would not be outdated by the time it was printed. There was general information and practices that we followed and knew and were aware of, but not a floating-around SOP as to how to handle everything. Can you describe the first time you saw a detainee? The first time that I saw a detainee, it was a sad and sorry sight. I don't recall who it was, but he looked so tired and worn out. Washed-up you might say. With nothing to do but read a book you have memorized, or pace in a 6 by 8 cell, there really isn't much to be hopeful for. Some detainees would work out in their cells, which was great to see (at least they were making some positive use of their time). The first time we entered the camp, we took a tour of the facility, and saw every block in the main camp. Some of the detainees would spit or throw urine; others would turn their head in disdain or sorrow; others would try to rile us up. The Tipton Trio, particularly Rahul, made some jokes as we entered. And warned us, in a funny way, that we were not in Kansas anymore.
How would you react when you were spat at or hurled urine at? For me, that was just part of the job. Usually we would be sent home to change our uniforms so that we would be at less of a risk of infection of disease (if any). Nonetheless, it would be a simple situation of us leaving the block to go home and change, and whomever happened to throw something or spit would be written up, so to say. It would be noted in the computer and that would be the end of it. Rarely was there ever a further action. Every detainee had a file on the computer so that we could track what they had done (and were likely to do again), as well as the good and bad actions they had taken. How would other guards react? Guards who had no morals, ethics, or self-control had their own
retaliations. Perhaps spitting in their food or drink. Or yelling or cussing
at them. Or spitting back or throwing something at the cages. There was
retaliation, but it wasn't something that would be physical. Unless an
IRF was deemed needed [an IRF is a forced cell extraction; it is named after the Immediate Reaction Force called on to perform it].
Water was also something that could create an issue. If a detainee would flood a cell, or stall his toilet, we would turn the water off for the whole block. If a detainee was rude or condescending, or perhaps not compliant, we could turn off the water for the whole block as well. There was a number of reasons we could turn off the water for the whole block. And that would happen often too. It was a rarity we would ever just turn off an individual detainee's water. Mass punishment was a tactic that the Army incorporated to create peer pressure among the detainees to prevent outbreaks and instill control. You said that sometimes there was further action. Even if only rarely. What was it? If it was needed, a platoon sergeant would be called on the block to de-escalate the situation. Or a translator. Or the chaplain. Or IRFing. Or OC spray (i.e. pepper spray) would be used. OC was a control tool used to stop a situation from getting worse. Or to calm a situation down. By SOP, an authorized guard was to open a cell and spray OC into a cell on a detainee as we had been taught in our Military Police training, which is very specifically to be an S-like motion that covers the face, particularly the eyes, mouth, and nose. But a simple S; no more. Yet, there would be many times that a guard would unleash an entire can of OC spray on a detainee, his belongings, his Quran--everything that was in the cell. And with no remorse. Almost as if they had a smile (and some did). A detainee could be OC-sprayed and then IRFed; a detainee could be OC-sprayed and left in his cell without water or anything else to comfort or clean with; a detainee could be OC sprayed, IRFed, taken to an isolation block, and then left for hours till his shower the following day to clean it off. If his shower privilege wasn't taken away. Can you describe, either from your training or from what you have seen, what it feels like being OC sprayed? The training that we would undergo was to have OC sprayed on us, and then maneuver an obstacle course. It wasn't too terrible for me, but that is simply due to me not having a reaction to it. Others were blinded nearly instantly. The pain from what I heard could be from mild to intolerable, and had a wear-off time of 2 or 3 hours. It was rather awful for the majority of the people. It really feels like burning in the the eyes, dryness, and an overwhelming sense of fear and desperation.
The most particularly crappy incident that I saw was when a
detainee, whose name escapes me, happened to have an IRF called on him.
During this spraying and IRFing, he was not entitled to clean off the
spray, or his cell. He was left hogtied for the night, and without
water. The following day he did not receive a shower either--nor was
water turned on in his cell. He, his possessions, and Quran were
covered in OC spray, that stuff can damage your eyes if not blind them
if left in for long periods. Did you witness or participate in an IRFing? Probably a good one or two hundred of them, to be honest. And no. I did not participate in them. There would usually be two teams on the ready for an IRF. If it was a day that I was on a team, I would take a long enough time getting ready that it would be done before I was in the area to do it. I didn't want to participate, so I just made sure to take my time putting on gear and such. Can you describe an IRFing? Five brutish, dumb men, running into a cell with a large shield and zip ties. They would slam a detainee into the wall or bed or anywhere else in the cell, and then proceed to beat and/or hog tie the detainee with the zip ties, ultimately removing him from the block till he calmed down. Or leaving him in his cell till he was calm enough to come out or be untied. This happened often as it was a common resort for aggressive guards who were still hurt over 9/11 and had no knowledge of why 9/11 happened, or what the history was behind this war. According to SOPs, IRFs must involve minimal force. Was this part of your training? That is what they were supposed to be, but certainly not what they were, as we have already discussed. IRFs were part of our training. A minimal part of it, but a part nonetheless. It was a single, four-hour block, I believe. Just practice on each other, over and over, as to how to enter the cell, take down the detainee, and make an exit without injury to the military police. Does any IRFing stand out in your mind?
That would probably be the IRFs on flu shot day. We had nearly 200 IRFs, it seemed, that day. The day began as any other day; ride the bus to work, get ready for work, start with chow and showers and rec. Nothing unusual or interesting occurred. It was just another day. But then an order came down, probably from the hospital or from a doctor, to administer flu shots to the entire detainee population. At that point the process spread throughout the camp, like a rapid fever, that there was something foul going on. Someone
created a scare that this was an execution of the detainees, and that
we were going to kill them all. This spread through the camp in
moments. It was amazing to see how they could all communicate with each
other so quickly, despite language and distance barriers. Everyone was rioting. The rioting probably started closest to Camp 4, as the hospital was closest to Camp 4. And then the riots started in Camp Delta and went across Camps 1, 2, 3. All probably started in the Camp 1 area, where we kept the "crazy" detainees. It would make sense that a rumor that lethal injection shots would be administered would come from "the crazy block."
Some of the detainees pulled out weapons they may have had for
moments or months, and used them on the guards. Some used the faucets
of the sinks as crude knives and stabbed guards as we entered the
cells. It was a hellish event that really was far more of a fiasco
than it needed to be.
The rioting called for IRF teams. There were two at the ready per camp. And three camps. So there were six teams available. If an IRF was called, the shot operations stopped. That is why it took about twenty one hours to administer the shots (to give 700 detainees the flu shot should not have taken that long, as it only takes a moment to administer a shot per detainee). How did the teams behave? They were riled up and angry, aggressive, belligerent like a drunk American. It was really a nightmare to be in. But I hate crowds and social situations, so the fiasco was more of a nightmare to me than it would be to the average person. How did you behave?
I just kept my head down and out of sight. I would try and sneak off and smoke as much as I could. That way I wouldn't be in sight of the guards. The trick in the Army is "out of sight, out of mind." Were translators involved? There were some translators involved, but there really wasn't an ability to utilize them to the best of possibilities. They were being called all over the camp, and when they would hit a block, it would become even more crazy since every detainee would want to talk to them. How did it all end? 21 hours later, tired, sweaty, and exhausted. Some guards were stabbed, bitten or scratched, some detainees sustained blows to the head, stomach, back, body, etc. Some had broken or spang limbs and bones, but nothing that really sticks out too well. It was really a nightmare, just went on for hours. You say that the flu shot riots were not started by religious reasons. Did any riots start because of them?
Yes. When a Quran was seriously disrespected. Or if a Quran was thrown
in the toilet. Or if a detainee was not allowed to pray. Or if his
praying was disrupted. Did you actually witness this? There has been some controversy about these issues. . .
I saw and heard all of these incidents. They happened many times. It wasn't that uncommon for a guard to mishandle a Quran. Or for one to be tossed in a toilet. Or for people to mock prayer. Or make fun of Islam before the detainees, this is all common practice in GTMO. Tossing a Quran in a toilet happened many times during cell inspections--or cleaning, rather. But this also happened during an IRF. Nonetheless, when it happened during a cleaning of the cell, it was really a matter of the guard not particularly paying attention to what he was doing, and accidentally tossing it near the toilet--from where it then slid into the toilet. There were other times when a guard would intentionally put the Quran in a toilet to start a problem or "stick it" to a detainee. This wasn't too uncommon a circumstance. When it would happen during an IRF--abuse to a Quran, that is--it would be common to see a CO (Camp Officer) spray the Quran with OC spray while spraying the detainee as well. And the entirety of the cell. There are many forms of mockery that took place during praying, prayer call, etc. That happened lots of times. Can you say more about the uncomfortable positions the prisoners were chained in? If you were to be standing and put your wrists in between your ankles, in kind of a squatting position, that would be one of them. Or having your ankles chained behind you. Or your hands chained behind you. And then chained to the ground or chained to a wall. The positions, I mean, they weren’t entirely too creative, but they were uncomfortable.
Here is a depiction of "short shackling". It is artwork based on descriptions provided by actual Guantánamo prisoners, and part of The Tipton Report. How accurate would you say this depiction is? That is a very accurate depiction of the position. Not sure where they got that picture, but it's pretty accurate. If you look in the picture you'll see that the wrists are behind the ankles. That's one of the positions. Another one is having the wrists in front of the ankles, which I actually think would be more grueling than the first one. In the first one you can kind of balance or roll off the balls of your feet; with the second one you are really left on your toes, which would cause a great deal of ache and muscle stress at the legs. For how long would they be in those positions? During interrogation they would be stuck in these positions for however long the interrogation was. That could be anywhere from two to twelve hours. Maybe longer. Where they interrogated while chained in those positions? Yes, when they were interrogated they were chained in these positions. How did the detainees react to this? This was, aside from bodily functions, not pleasant. They weren’t entirely too happy to urinate or defecate on themselves. And to be in pain, or what not. Some of them were crying. It was a horrible, crappy, situation. Did you see these chainings? Did you carry them out yourself? Yes, I did see them. And I did see these transport rooms. I did transport them to the rooms. But no, I would not chain them. Once we get them to wherever they were going for interrogation, that would generally be the end of it--of what we would do. It would be the interrogators from that point onward. Were the temperatures in the rooms manipulated when they were in those positions? The temperatures in the rooms could vary anywhere from maybe 40 degrees on up to 120. More often than not it would be cold, being that they were outside during the day and the night and they were used to about 90 degrees day-round. They would use extreme colds to make it awful. How about the noise levels while they were chained in these ways? Where they manipulated? The noise levels in the rooms would usually be loud. Very loud. And inescapable. Generally, in the position depicted in the picture above, if you put a strobe light two feet in front of the detainee, and turn the volume up to an extreme level, that would be the situation they would be left in for hours and hours until they defecated or urinated on themselves and at that point interrogation would begin. That would involve an agent yelling and using profanity and intimidation factors--basically just threats. Whatever else may happen I am not entirely sure; it was not something I was necessarily able to partake in or witness. So would the interrogations happen during or after the chaining in uncomfortable position? Both--to be honest with you. More often than not, though, the interrogation would be after. The uncomfortable position would be endured for how many hours it was going to be endured and then afterwards the interrogation would take place--obviously due to the weakened state and the weakened mental stability of the detainee at that point in time. However, because it also happened during, sometimes an interrogator would go in during this state, with the music, the strobe light, the air conditioning and everything else, and perhaps present a photo to the detainee and scream or yell and demand answers aggressively and perhaps strike the detainee or what not and demand an answer, and if the detainee did not comply, then perhaps he would stay in that position for more hours in that climate. You say interrogators could strike detainees during interrogations. Did you actually witness this? If so, how did this come about. I did witness this. It happened much like the new memos say. It would be a slap to a head. Or perhaps the detainee would be held against a wall. Something of a minor aggression. But intimidation nonetheless. Was this the only such incident you witnessed? Did you hear about others? It seemed that it was standard for this to happen. At least I heard about it from others all the time. Both from guards and from detainees. Do you know if detainees were beaten in contexts other than IRFs and interrogations? No. If we may return to the issue of religious abuse, translator Erik Saar says, in his book, that a female interrogator at GTMO led a detainee to believe that she was menstruating at the time she was interrogating him, and made him think that the red stuff in her hands was menstrual blood (it was in fact red ink). She then proceeded to smear it on the detainee's face. Subsequently, she had the water to the detainee's cell cut, so he could not wash. She did this, Saar tells us, so that the detainee would not be clean to pray--thus diminishing the strength the detainee was supposedly deriving from his religion. Did you witness anything like this? I was there for that day. We were not the two soldiers to take him to--or from--interrogation, but we were smoking near the building he was being interrogated in, and saw him when he came out. He came out in what look liked a frustrated or near-tears state, and
was being taken to his cell by the other two guards in the area. We
looked over at him (or I looked over at him), and saw that he had
something red on his face, but I was not able to make out if it was from
being hit to the head or something else (as it turned out to be). Shortly after he was out of view, two interrogators and a lady came
walking out; the lady was wearing black, and she seemed rather pleased and
accomplished. You could tell by the look on her face. The other two
interrogators were commenting and giving her praise for her success. So
supposedly she gained some intel. Or she broke the detainee down. They walked off and, as I was walking off, I watched
her make a hand gesture as if she was smearing something on someone's
face (she had smeared blood from a blood capsule on the detainee). And then she laughed. There were a good number of IRFs and angry detainees that followed that event. And the blonde interrogator who did that was mighty proud of herself that day! Blood from a blood capsule? In Saar's book it was red ink from a marker pen. . .
It could have been a red ink pen. I heard that it was a blood capsule. I am pretty sure I heard that from her own mouth. And from other interrogators, as well, as they were talking. I did not see the act itself. But I saw the detainee afterwards, and worked that day, so I had to deal with the drama that came of it.
Thanks for the clarification. Let's turn to psychological abuse. Did you witness cases in which prisoners were deprived of sleep? This practice may have been referred to as the "frequent flyer program". Frequent flying happened often. Everyone who was down there participated in that. We didn't have a choice. You would be moving detainees, every two or three hours, from one cell to another. Sometimes between cells in the same block and sometimes between cells of different blocks. They would be moved all day long, for upwards of a week. Everyone who worked would have to move detainees throughout the day, so that was a common practice and happened regularly. Were you given any explanation for these movements? Your orders must have sounded bizarre (if not downright cruel). No, we were not. We were just told to move detainees. But there were so many teams at a time that would be assigned to do this, you may not have known that you were participating in that program. It did seem odd when you would have a detainee moved three times in one shift, but it wasn't really something I noticed at the time of occurrence. Did you witness any threats to detainees or their families?
There were a few instances of threats of life or limb to detainees. As well as their relatives. During interrogation, tactics can be used in which the interrogator would yell obscenities and give threats of physical abuse or what not, [saying] "if you don't tell us this we are going to kill your whole damn family" or, "we have your family, we know who they are." That did happen. Not entirely too often (or maybe it did happen often and I didn't see it). I think I'd seen it twice. I walked in, I saw what was going on in interrogation, and about as soon as I walked in and saw it, an interrogator or somebody else told me to walk out. Did you witness acts of severe humiliation? Yes. There was severe humiliation. That, primarily, would've been instances of detainees defecating on themselves and there was nothing done; there was no change of clothes. That happened. There was lots of verbal humiliation, obviously. Detainees were put down and treated like animals (or less than animals) in their interrogation. And there were guards, as well, that were very disrespectful towards them. Was there abuse related to food? There's nothing that was an issue with the food. They received an adequate quality and quantity of food each day. Food was not something that was messed with. Did you witness any form of sexual abuse? No. This never occurred. At least to my knowledge. How about medical abuse? No. This was something I touched on in other interviews. The medics were far more compassionate than the guards. They had a different job altogether. They were working in a medical field, and as a result had a medical attitude, not a political or propaganda jaded view. And were smarter. Did they do anything to stop or report abuse they might have seen? They didn't do anything to report abuse or stop it, but that was because they never saw it; they saw only what came of it. Did you see any minors among the detainees? If so, how were they treated? I did. They were treated far better. They had privileges to the ocean for an hour a week. And a television and the ability to watch movies. Same question for elderly detainees. They were in the general population, and were treated like the rest of the detainees.
Did you see how the detainees were transported into or out of Guantánamo? I was involved in one transportation mission with detainees (as far as I know, this was the only one that occurred while I was there). We took detainees home to Iraq, Afghanistan, Turkey, Russia, etc. It was a long flight. Basically it was a C-130. It was gutted out. There were approximately fifty detainees in this flight. They had goggles, earmuffs, and bags over their heads. And blue jumpsuits (as opposed to orange ones). The detainees were shackled into their chairs (the same benches we were sitting on). They had a three-piece shackle (hands, feet, and waist), which was then shackled to the floor. It was a long, nonstop flight. We just left, went there, dropped them off and that was the end of it. This is interesting. It may be the first time we get a first-hand, verbal accounting of transport operations out of Guantánamo from the military. A couple of questions. The first is whether the detainees were informed that they were being taken home or were they deliberately misinformed about this? Also, were they harassed or abused in any way during the flight? I am not aware if they were told anything true or not. There was no harrasment or abuse during the flight; it was really quite simple: they were shackled and sat quietly; we sat quietly guarding them. Off and on we would take turns sleeping, It was a long flight. You say it was a long flight. What if the detainees needed to go to the restroom? Were they allowed to? Was there even one? Yes, there was a restroom. And they were allowed to use it. Although they were not completely unshackled for this process, it seemed it would be a bit messy of a process, wiping with a shackle still on, so they were unshackled in part. That is comforting. Pictures have been made public of transfers into Guantánamo in which the detainees were made to travel sitting on the floor over diapers. In any event, would you care to comment on this interview? Were you satisfied with it? Would you recommend other guards to approach The Guantánamo Testimonials Project with their testimonies? Yes, I absolutely would. You showed a great deal of professionalism and have kept to it, which is tremendous in effort and honesty. You have also delved deeper into issues--more than anyone else has ever. It has been a pleasure to work with you, and I look forward to an ongoing friendship with you!
CSHRA wishes to thank Terry Holdbrooks Jr. for this illuminating and courageous interview. And to invite anyone else with first-hand knowledge of Guantánamo to contribute testimony to the Guantánamo Testimonials Project. The project can be reached electronically at firstname.lastname@example.org.
This article, by Jason Leopold, was originally posted to Truthout.org, June 17, 2009
On January 25, 2002, then-White House counsel Alberto Gonzales advised George W. Bush in a memo to deny al-Qaeda and Taliban prisoners protections under the Geneva Conventions because doing so would "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act" and "provide a solid defense to any future prosecution."
Two weeks later, Bush signed an action memorandum dated February 7, 2002, addressed to Vice President Dick Cheney, which denied baseline protections to al-Qaeda and Taliban prisoners under the Third Geneva Convention. That memo, according to a recently released bipartisan report issued by the Senate Armed Services Committee, opened the door to "considering aggressive techniques," which were then developed with the complicity of then-Defense Secretary Donald Rumsfeld, Bush's National Security Adviser Condoleezza Rice, and other senior Bush officials.
"The President's order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al-Qaeda or Taliban detainees," says the committee's December 11 report.
"While the President's order stated that, as 'a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions,' the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in US custody."
The Supreme Court held in 2006, in Hamdan v. Rumsfeld, that the prisoners were entitled to protections under the Geneva Conventions.
Many of the classified policy directives, such as Gonzales's memo to Bush, are now part of the public record thanks to the American Civil Liberties Union's (ACLU) Freedom of Information Act lawsuit against the Bush administration, which has so far resulted in the release of more than 100,000 pages of documents that shows how Bush officials twisted the law in order to build a legal framework for torture.
These documents have been posted on the ACLU's web site. But several hundred of the most explosive records were republished in the book "Administration of Torture" along with hard-hitting commentary by the ACLU's Jameel Jaffer, who heads the group's National Security Project, and Amrit Singh, a staff attorney with the organization.
Rumsfeld Wanted a "Product"
On February 14, 2002, just one week after Bush signed the action memo, Maj. Gen. Mike Dunlavey was contacted by Rumsfeld, who asked him to attend a Defense Department meeting with Rumsfeld, Wolfowitz, and others on February 21 or 22. At the meeting, Rumsfeld told Dunlavey he wanted him to oversee interrogations at the Guantanamo Bay naval facility in Cuba. Prisoners captured by US military personnel had first arrived at Guantanamo a month earlier. Dunlavey was a family court judge in Erie County, Pennsylvania, when he got the call from Rumsfeld and was placed in charge of interrogations at Guantanamo.
Rumsfeld told Dunlavey, according to a witness statement he made on March 17, 2005, to US Air Force Lt. Gen. Randall Schmidt, who was investigating FBI complaints about abuse at Guantanamo, that the Department of Defense had rounded up "a number of bad guys" and the secretary of defense "wanted a product and wanted intelligence now." Rumsfeld "wanted to set up interrogation operations and to identify the senior Taliban and senior operatives and to obtain information on what they were going to do regarding their operations and structure," Dunlavey said, according to a copy of his witness statement. "Initially, I was told that I would answer to SECDEF (Secretary of Defense) and [US Southern Command]. The directions changed and I got my marching orders from the President of the United States. I was told by the SECDEF that he wanted me back in Washington, DC every week to brief him.... The mission was to get intelligence to prevent another 9/11." Dunlavey did not explain what he meant by "I got my marching orders from the president." But his comments suggest that Bush may have played a much larger role in the interrogation of prisoners than he has let on. Moreover, Dunlavey's witness statement indicates that harsh interrogations, such as waterboarding, may have taken place earlier than previously known and may have preceded an August 1, 2002, legal opinion issued by the Justice Department's Office of Legal Counsel authorizing specific interrogation techniques to use against prisoners.
As early as December 2001, according to the documents obtained by the ACLU, high-ranking military officials began to implement an Army and Air Force survival-training program called Survival, Evasion, Resistance and Escape (SERE), which were meant to prepare US soldiers for abuse they might suffer if captured by an outlaw regime.
In June 2004, Gen. James Hill of Southern Command, the Defense Department's command unit responsible for military operations in Central and South America and the Caribbean, held a press briefing and confirmed that interrogation techniques specifically authorized by Rumsfeld for use at Guantanamo were derived from the SERE school. In October 2002, Dunlavey wrote to Hill to seek authorization that interrogators be granted the authority to use methods that strayed from the Army Field Manual in order to extract information from prisoners.
Dunlavey, in making his case to Hill for authority to use more aggressive techniques, attached a copy of Bush's then classified February 7, 2002, action memo along with an analysis that said, "since the detainees are not [Enemy Prisoners of War] the Geneva Conventions limitations that ordinarily would govern captured enemy personnel interrogations are not binding on US personnel." Hill sent Dunlavey's request to Gen. Richard Myers, chairman of the Joint Chiefs of Staff. Myers discussed it with William Haynes II, the Defense Department's general counsel, who briefed Deputy Secretary of Defense Paul Wolfowitz and Undersecretary of Defense for Policy Doug Feith. The request ultimately ended up on Rumsfeld's desk and he approved it, according to the documents.
"The documents establish that senior officials in Washington, including White House Counsel Alberto Gonzales, constructed a legal framework that would permit the abuse and torture of prisoners," the ACLU's Jaffer and Singh wrote in "Administration of Torture." "They establish that Secretary of Defense Donald Rumsfeld, relying on this legal framework, expressly authorized the use of interrogation methods - including SERE methods - that went far beyond those endorsed by the Army Field Manual. They establish that Rumsfeld and Gen. Geoffrey Miller oversaw the implementation of the newly authorized interrogation methods and closely supervised the interrogation of prisoners thought to be especially valuable."
In early December 2002, FBI officials who had participated in some interrogations at Guantanamo complained to Miller that the methods used against prisoners at Guantanamo were unlawful. But Miller was not receptive. That led FBI officials to conclude that senior Bush administration officials and Rumsfeld were making decisions about interrogations in particular.
A December 16, 2002, email written by an FBI official expressed frustration that the Defense Department refused to budge from its controversial interrogation methods.
"Looks like we are stuck in the mud with the interview approach of the military vs. law enforcement," the email said.
In May 2004, Miller told the Senate Armed Services Committee that he briefed Wolfowitz and Undersecretary of Defense Stephen Cambone about his plan to "Gitmo-ize" the Abu Ghraib prison.
That month, an email written by a senior FBI agent in Iraq in 2004 specifically stated that President George W. Bush had signed an executive order approving the use of military dogs, sleep deprivation, and other tactics to intimidate Iraqi detainees.The FBI email, dated May 22, 2004, followed disclosures about abuse of Iraqi detainees at Abu Ghraib prison and sought guidance on whether FBI agents in Iraq were obligated to report the US military's harsh interrogation of inmates when that treatment violated FBI standards, but fit within the guidelines of a presidential executive order.
According to the email, Bush's executive order authorized interrogators to use military dogs, "stress positions," sleep "management," loud music and "sensory deprivation through the use of hoods, etc." to extract information from detainees in Iraq.
The May 2004, FBI email stated that the FBI interrogation team in Iraq understood that despite revisions in the executive order that occurred after the furor over the Abu Ghraib abuses, the presidential sanctioning of harsh interrogation tactics had not been rescinded.
"I have been told that all interrogation techniques previously authorized by the Executive Order are still on the table but that certain techniques can only be used if very high-level authority is granted," the author of the FBI email said.
"We have also instructed our personnel not to participate in interrogations by military personnel which might include techniques authorized by Executive Order but beyond the bounds of FBI practices."
The White House had emphatically denied that any such presidential executive order existed, calling the unnamed FBI official who wrote the email "mistaken." Prior to the May 22, 2004, email several others written by FBI agents that month were sent to Valerie Caproni, the FBI's general counsel, about detainees being tortured before the unnamed agent sent Caproni the email citing Bush's alleged executive order.|
On July 9, 2004, the FBI's Office of Inspections distributed an email asking its agents who were stationed at Guantanamo whether they had witnessed, "Aggressive treatment, interrogations or interview techniques ... which were not consistent with FBI interview policy/guidelines." More than two-dozen agents responded that they observed numerous instances of detainee abuse. One FBI agent wrote that, despite Rumsfeld's public statements to the contrary, the interrogation methods "were approved at high levels w/in DoD." In addition to Rumsfeld, the FBI emails said Paul Wolfowitz, one Bush administration official who has largely escaped scrutiny in the torture debate, approved the methods at Guantanamo.
In 2006, Miller received a Distinguished Service Medal for "exceptionally meritorious service." Dunlavey is an Erie County judge.
This article, by Phillip Zelikow, was published in Foriegn Policy, May 8, 2009
I first gained access to the OLC memos and learned details about CIA's program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice's policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.
Having been the executive director of the 9/11 Commission, I'm aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most -- if not all -- of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.
Based on what had earlier been released, I have offered some general views on "Legal Policy for a Twilight War." With the release of these OLC memos, I can add three more sets of comments, each of which could be developed at much greater length.
1. The focus on water-boarding misses the main point of the program.
Which is that it was a program. Unlike the image of using intense physical coercion as a quick, desperate expedient, the program developed "interrogation plans" to disorient, abuse, dehumanize, and torment individuals over time.
The plan employed the combined, cumulative use of many techniques of medically-monitored physical coercion. Before getting to water-boarding, the captive had already been stripped naked, shackled to ceiling chains keeping him standing so he cannot fall asleep for extended periods, hosed periodically with cold water, slapped around, jammed into boxes, etc. etc. Sleep deprivation is most important.
2. Measuring the value of such methods should be done professionally and morally before turning to lawyers.
A professional analysis would not simply ask: Did they tell us important information? Congress is apparently now preparing to parse the various claims on this score -- and that would be quite valuable.
But the argument that they gave us vital information, which readers can see deployed in the memos just as they were deployed to reassure an uneasy president, is based on a fallacy. The real question is: What is the unique value of these methods?
For this analysis, the administration had the benefit of past U.S. government treatment of high-value detainees in its own history (especially World War II and Vietnam) and substantial, painful lessons from sympathetic foreign governments. By 2005, the Bush administration also had the benefit of what amounted to a double-blind study it had inadvertently conducted, comparing methods that had evolved in Iraq (different Geneva-based rules, different kinds of teams) and the methods the CIA had developed, with both sets being used to against hardened killers.
Opponents should not overstate their side either. Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results.
Which underscores the importance of moral analysis. There is an elementary distinction, too often lost, between the moral (and policy) question -- "What should we do?" -- and the legal question: "What can we do?" We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. "The lawyers say it's OK." Well, not really. They say it might be legal. They don't know about OK.
3. The legal opinions have grave weaknesses.
Weakest of all is the May 30 opinion, just because it had to get over the lowest standard -- "cruel, inhuman, or degrading" in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)
The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in U.S. law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the U.S. government with a distorted rendering of relevant U.S. law.
At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives.
Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:
the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA's methods;
the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.
the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law -- whatever the alleged gain.
The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail.
In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest -- if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.