The drowning technique called waterboarding

It's good to see that the New York Times has finally decided to call a spade a spade. For years it has followed the Bush administration’s lead in using euphemisms and circumlocutions to describe the notorious and plainly illegal interrogation techniques inflicted on prisoners held overseas and accused of terrorist activities. Though it has expressed some pride in the alleged candor of its terminology, the Times had always avoided calling torture by its name.

In particular, the Times employs several evasive phrases to describe so-called waterboarding: ‘the near-drowning technique’; ‘the simulated drowning technique’; and most bizarrely ‘the controlled drowning technique’. Collectively, they ratify the position adopted by the Bush administration by insinuating that drowning can be something other than drowning in the right circumstances. But drowning describes the filling of lungs with liquid, nothing more or less. It’s not something that can be ‘simulated’ or ‘near’, and ‘control’ is beside the point. You wouldn’t apply any of those terms to castration, say, if the government inflicted that on prisoners and then worked to reverse or mitigate the damage done. So why did the Times try for so many years to soften the plain fact that the US government was having men drowned?

Now at least the Times is starting to find the courage or sense to state the plain truth. In just the last day in an editorial as well as in an article reviewing Donald Rumsfeld’s memoir the NT Times has taken to using the unadorned expression "the drowning technique called [or 'known as'] waterboarding".

It seems that the Times made a recent decision to permit, perhaps even to prefer, honest language in this regard. On Jan. 19th of this year it posted an article on Guantanamo prosecutions by Charlie Savage that also used the same frank expression.

It appears that the Times was feeling its way tentatively toward candor back in November of 2010. On Nov. 14th it referred to "the drowning technique called waterboarding" in an article about an investigation of Dr. James E. Mitchell, a rogue psychologist who promoted torturous interrogation techniques under the Bush administration. However 4 days earlier it had used and subsequently retracted that language in an article on the Justice Department’s failure to prosecute anybody for destroying CIA videotapes of several interrogations that employed torture.

This appears to be an interesting case study in the Times’ timidity in the face of Orwellian language. The article as originally published contained the following details [highlighting is mine]:

The role of once-secret memorandums about interrogation techniques by politically appointed lawyers in the Justice Department’s Office of Legal Counsel has been controversial. The documents, which leaked in 2004 when the torture of prisoners at Abu Ghraib was in the headlines, asserted that the president, as commander in chief, has the constitutional power to override anti-torture statutes. The memos also claimed that certain techniques — like stripping prisoners naked, keeping them awake for long periods, slamming them into walls, and subjecting them to the drowning technique called waterboarding — did not amount to torture

More than two months later (sometime after Jan. 15, 2011) At some later stage the article was revised. Only the newer version is available at the Times’ website. The most extensive alteration, indeed the only one that I find (this is not indicated by the Times), is that the foregoing paragraph was edited down to produce the following:

Mr. Holder was referring to once secret Justice Department memorandums asserting that certain interrogation techniques, like stripping prisoners naked, keeping them awake for long periods, slamming them into walls and subjecting them to waterboarding, would not violate antitorture laws.

In the original version I highlighted the parts that were removed subsequently. You can see how much that is purely factual has been stripped out of the original, all of it quite unflattering to the Bush administration. The later omissions included the phrase "the drowning technique", which was not even replaced by one of the Times' traditional evasive phrases.

It seems that the Times wasn’t quite ready last November to see the stark language of truth being used. But the policy of evasion regarding waterboarding (at least) has now been reversed.

Admittedly, the Times has twice in the past described waterboarding as “the torture technique”, in an editorial from 2008, and in a second one from 2009. But as far as I can determine it has never stated that candidly as a fact in a news story. And in any case it is only quite recently that the Times has become willing to go on record describing waterboarding as “the drowning technique”.

So two cheers for the new found courage of the New York Times’ sort-of convictions.

Update: It's not certain when the editing down of the Nov. 10 article happened, so the wording was revised to reflect that.

crossposted at unbossed.com

David Addington did approve of cruel CIA interrogation techniques

So far Dick Cheney’s notorious former legal counsel and confidant, David Addington, has managed to maintain the pretense that he was not directly involved in authorizing the use of torture and cruel or degrading treatment of prisoners under the Bush administration. Now we have documentary evidence of his direct involvement.

The very right-wing Judicial Watch has just released a batch of CIA documents it obtained through a FOIA request. Judicial Watch is seeking to embarrass congressional Democrats by showing that the CIA briefed them under Bush about the abusive interrogation methods. Whether or not the documents actually manage to embarrass those Democrats, one of them does embarrass Addington.

Here they are (PDF). One formerly classified memo from February 4, 2003 summarizes a CIA briefing given to Sen. Roberts and the staffers for Sen. Rockefeller regarding the ongoing abusive CIA interrogations of terrorism suspects. It reads in part (my emphasis):

The enhanced [interrogation] techniques were described in considerable detail, including how the water board was used. The [CIA] General Counsel described the process by which the techniques were approved by a bevy of lawyers from the NSC, the Vice President’s office and the Justice Department, including the Criminal Division and the Attorney General, who opined that the techniques were legal under U.S. law.

The Vice President’s lawyer is almost certainly Cheney’s eminence gris, David Addington.

In the past Addington has frequently been linked to the development of torture and abusive techniques. But none of these allegations have been documented and Addington has denied or evaded the charges.

In 2004 Newsweek’s Daniel Klaidman reported (the original link evidently is defunct) that aides to presidential counsel Alberto Gonzales said that it was Addington, not Gonzales, who drafted the January 25, 2002 memo that argued some provisions of the Geneva Conventions were “quaint” and “obsolete”. Addington continued for years to lead the fight in denigrating the applicability of the Geneva Conventions, so he may well have been involved in drafting the January 25, 2002 memo.

Addington also reportedly played a key role in shaping the August 1, 2002 Bybee Memo authorizing a list of abusive interrogation techniques, including waterboarding - which plainly was treated as torture under established US law. The recently released OPR final report into misconduct by the DOJ torture memo authors (especially John Yoo and Jay Bybee), focuses at length upon revisions to the draft Bybee memo that seemed to be requested in July 2002 by Addington and Gonzales. The OPR report highlights what appears to be an elaborate attempt by Yoo, Bybee, Jennifer Koester (another unindicted torture memo author), and others in the Bush administration to cover the tracks that led back to the direct involvement of Gonzales and Addington in shaping the Bybee Memo. I’ll write more later about this episode because it is critical, I believe, to understanding why David Margolis rejected the OPR’s finding that Yoo and Bybee engaged in misconduct. Suffice it to say here that the apparent attempt by Yoo and others to shield Gonzales and Addington from any direct responsibility for the Bybee Memo involves a series of bizarre and incredible assertions, laid out by OPR at pp. 46-53. Among other oddities, nobody from DOJ or the White House who attended a critical July 16, 2002 meeting to discuss the draft memo can remember what Gonzales or Addington said about it, even though that meeting immediately preceded the most controversial additions to the memo.

Philippe Sands has also reported that Addington was part of a high-level delegation (which also included Gonzales) that visited Guantanamo prison in September of 2002 and pressured the military there to introduce more abusive interrogation techniques.

With the help of friends over the years, Addington issued dismissive and vague denials that he was directly involved in drafting or shaping any torture memos or advocating for specific abusive practices. When called to testify before Congress about his activities, Addington was snidely dismissive of questions and frequently evasive. He did however deny that he pressured anybody at Gitmo in 2002 to adopt abusive techniques. Addington also insinuated that he made no suggestions to the OLC lawyers at the July 16, 2002 meeting. In response to their briefing about the draft Bybee Memo, Addington claims, he said nothing more than “Good” before sending them on their way.

In short, until now David Addington has managed to bob and weave, obfuscate and deny every time he has been implicated in direct involvement in shaping or authorizing torture and abuse of prisoners. Now however we have a CIA document that says the Vice President’s lawyer approved of the “enhanced interrogation techniques” being used by the CIA at the start of 2003.

Say so long to plausible deniability, David.

crossposted at unbossed.com

The OPR’s Torture Memo report will be an assault on the rule of law

According to Newsweek’s Michael Isikoff and Daniel Klaidman, the DOJ’s Office of Professional Reponsibility (OPR) is about to release an investigation that lets off the 2002 Torture Memo’s authors, John Yoo and Jay Bybee, with no more than a mild rebuke.

The report originally criticized them strongly for misconduct in producing that brief for torture with reckless disregard for legal precedent. But Bush’s Attorney General, Michael Mukasey, didn’t care for that finding. First he and then Eric Holder allowed the CIA to weigh in on the OPR draft report, whose criticisms of Yoo and Bybee were then toned down radically.

Reportedly the final draft will charge them only with showing “poor judgment”, a finding so flaccid that it does not even require a DOJ referral to state bar associations for disciplinary action against Yoo and Bybee. Bybee, a federal judge, could have faced impeachment.

The dumbing down of the findings clearly have politicized the OPR report, which is remarkable given that Yoo and Bybee stand accused of tailoring their legal opinion to suit the wishes of top Bush administration officials. It amounts to another searing searing indictment of the Holder Justice Department for failing to hold any high ranking officials accountable for the torture of prisoners under the Bush administration.

Perhaps worse, it encourages future presidents to develop further the Bush administration’s diabolical experiment in indemnifying government officials against gross lawlessness. What Bush’s lawyers were busy doing in the aftermath of 9/11, essentially, was generating junk legal opinions as a smokescreen behind which the CIA and others could operate with impunity no matter how egregiously and transparently illegal their activities. If they were ever threatened with prosecution, they could claim that they acted in good faith based upon these (junk) opinions. Now the OPR, by failing even to recommend that Yoo and Bybee be disbarred for their handiwork, is about to wink at that practice. It’s an assault upon constitutional democracy.

I’ll have more later on this subject. In particular I wish to highlight something that appears to be overlooked in commentary so far. That is, the revision of the report shields not only Yoo and Bybee, but also Alberto Gonzales and David Addington. It may well be that protecting the latter two (and thus their patrons, Bush and Cheney) was the main object in blunting OPR’s findings.

CIA torture pitchman admits he scammed the public

Remember John Kiriakou, the former CIA officer who popped up in December 2007 to tell America how wonderfully effective – and expeditious – the CIA’s torture of the prisoner Abu Zubaydah had been? Kiriakou said that he knew for a fact that Zubaydah revealed all manner of dangerous al Qaeda plots after being waterboarded a single time.

It was music to the ears of right-wing torture apologists…though Kuriakou’s most important assertions couldn’t be squared with the other information we already had about Zubaydah’s torture (in particular that it had generated all manner of unreliable allegations).

Now Kiriakou is back, hawking a book. Guess what? On the next to last page, he admits that it was all a campaign of misinformation.

At the time of his first interview on ABC News, I argued that Kiriakou’s account was full of bizarre contradictions because “it is an elaborate game of spin gone badly awry”.

If you listen to this long, multi-part interview at ABC, you can’t help but notice the mountain of BS that Kiriakou piles up. It’s quite clear that what he’s attempting to do is to provide cover for the CIA and, perhaps, the Bush administration.

For example, he admits just enough of what we already know about the facts of this program, while larding it with slabs of self-justifying circumstantial assertions, as to slip into “evidence” a range of unproven and, on closer inspection, dubious propositions. All of these dubious propositions tend in one direction, to excuse or mitigate any of the kinds of charges that are being directed against those who engaged in, acquiesced in, or ordered the torture of prisoners in CIA custody.

It was a crude campaign of misinformation. The US news media (ABC’s Brian Ross and Richard Esposito especially) conducted themselves deplorably in propagating this nonsense uncritically.

Indeed, as Jeff Stein documents, when evidence subsequently trickled out that Kiriakou wasn’t actually present in Thailand during Zubaydah’s interrogation, and that the prisoner was in fact waterboarded at least 83 times, ABC began to backtrack quietly by posting an endnote on line to its report – in which Kiriakou tried to explain his false assertions.

"When I spoke to ABC News in December 2007 I was aware of Abu Zubaydah being water boarded on one occasion. It was after this one occasion that he revealed information related to a planned terrorist attack. As I said in the original interview, my information was second-hand. I never participated in the use of enhanced techniques on Abu Zubaydah or on any other prisoner, nor did I witness the use of such techniques."

So there you are, dear reader, just in case you happened to go back recently to the original 2007 ABC report to see what revisions had been made to it. Quietly. But don’t go looking for the videos of the interview with Kiriakou, which ABC promoted like mad back in 2007. ABC has taken those videos down.

And Kiriakou himself still isn’t very forthcoming. At the very end of his new memoir he admits offhandedly that he didn’t know what he was talking about when, with the imprimatur of various news outfits, he presented himself as having first-hand information about the effectiveness of torture. It was all just hearsay that he was embellishing:

"I wasn't there when the interrogation took place; instead, I relied on what I'd heard and read inside the agency at the time."

For what it’s worth, Kiriakou now claims that he himself was duped into becoming the frontman for a CIA misinformation campaign. Believe that at your peril. There were many accessories to torture, and Kiriakou can’t be eager to be placed in their ranks.

A harvest of shame all around.

Shining light on CIA torturers cum whiners

This report by Walter Pincus and Joby Warrick is already generating criticism as yet another installment in the Washington Post's repulsive effort to build public support for Dick Cheney's defense of abusive interrogations (regarding which see this satirical commentary on yesterday's installment). I think something more subtle is going on in today's piece. Pincus and Warrick are airing Cheney's argument that the investigation of CIA abuses damage morale at the Agency, only to cut it down by showing repeatedly that any complaints at the CIA are limited to those few officials who took part in the abuse and now stand to be held accountable for it.

Not only does the current article not align itself with Cheney's position, it provides ammunition against Cheney's argument that we should be concerned about the mental anguish of torturers who now have to suffer through an investigation of their conduct. In fact, some of that ammunition is new and will prove useful in rebutting Cheney's talking points.

For example, the article highlights the outrage that was felt by many CIA officials at the reports that were trickling back about the abuse of prisoners. Here it quotes CIA Inspector General John Helgerson saying that he was cheered on by the rank and file officer when he began his investigation into CIA wrongdoing:

Helgerson now says he received a steady flow of information, questions and encouragement during his inquiry. "Frankly, I could not walk through the cafeteria without people walking up to me, not to complain but to say, 'More power to you.' "

Former senior officials say that they were concerned with what was an unprecedented program and that as reports came in from secret sites alleging improper activities, they took action, including sending reports to Helgerson.

The article's central point is made right at the outset, in the last clause of the report's first sentence – which hangs there as a rather pointed rebuke of the torturers' self-serving whining:

Morale has sagged at the CIA following the release of additional portions of an inspector general's review of the agency's interrogation program and the announcement that the Justice Department would investigate possible abuses by interrogators, according to former intelligence officials, especially those associated with the program.

From there Pincus and Warrick go on to quote one of the lead advocates for abusive CIA programs, Alvin Krongard (who retired and went to work for Blackwater), to the effect that the release of Helgerson's report and hence the prospect of investigations means that morale at the CIA has dropped "down to minus 50". That's an assertion that the rest of the article proceeds to show is grossly inaccurate, so Krongard is exposed as an alarmist at best. In any case, Krongard's complaint is directly juxtaposed to a comment by Helgerson:

At the same time, former inspector general John L. Helgerson, whose review of the program was largely declassified Monday, said that the release, though painful, would ensure that the agency confronts difficult issues head on, instead of ignoring or trying to bury them.

As every complaint is aired, the reporters undercut it by showing that it isn't necessarily representative of the views held throughout the Agency. Indeed, they also point out that nobody can reasonably claim to know what all CIA officers think (a rhetorical trick that is essential to the arguments advanced by the Cheney/Krongard faction that claims to speak for the poor put-upon CIA officer):

It is impossible to extrapolate from the small sample contacted by Washington Post reporters about the effect the varied inquiries are having on the thousands of agency employees, more than one-third of whom are spread around the world. But among the dozens of officials who were part of the program and either remain active or have retired, feelings run high about how the White House and the Justice Department have handled the issue.

It's primarily those who are implicated in torture who are raising a fuss about investigations and the release of information about their activities.

The article also points out that CIA officers were wary of the abusive interrogation program from the start and had immediately anticipated that there would be legal problems in the future when the program was exposed...despite Bush administration lawyers' attempts to reassure the CIA that it had been indemnified and was free to torture away.

Read in this light, the Pincus/Warrick column does a public service by dismantling one of Cheney's most emotive talking points.

crossposted at unbossed.com

Cheney is afraid of the DoJ torture investigation

You might reasonably have surmised that Dick Cheney fears where an investigation into the torture and mistreatment of terrorist suspects could eventually lead. Until now Cheney has restricted himself to lying about the effectiveness of the CIA and DoD interrogation programs, claiming to know decisive information that remains classified, and denouncing those who seek to investigate the government officials who abused prisoners under the color of law. But now we have some direct evidence of how rattled Cheney has become by Attorney General Holder's decision to initiate what is after all an extremely limited investigation. Its scope currently is limited to the CIA interrogations that employed even more abuse than the torture memos had actually authorized.

In an interview that will be aired on Sunday, Cheney made a couple of really remarkable statements according to McClatchy's Warren Strobel. First, Cheney endorsed the behavior of CIA officers who blatantly ignored the restrictions placed upon interrogators by government lawyers. This only a few days after the release of a 2004 CIA Inspector General report that revealed lurid details of prisoner abuse! Cheney had to know that he would be derided and denounced for coming out in favor of such things as mock executions, promises to rape and murder the family members of suspects, and threats with a gun and electric drill.

And secondly, Cheney rather transparently tried to build distance for himself with regard to the use of waterboarding, for which he has been the most vocal public advocate since at least 2006 (his original endorsement of waterboarding was a story broken here at unbossed). Cheney wants us to believe that though he was aware of the existence of the practice in general, he wasn't informed about any particular applications of waterboarding to specific prisoners. This even though reams of evidence have accumulated that interrogators who employed waterboarding were in very regular contact with CIA headquarters, and that the White House was deeply interested in the progress of those particular interrogations to the point of asking for multiple updates for days on end!

Here is how Strobel describes the Cheney interview:

Cheney, who strongly opposes the Obama administration's new probe into alleged detainee abuse, was asked in the Fox News interview whether he was "OK" with interrogations that went beyond Justice's specific legal authorization.

"I am," the former vice president replied.

"My sort of overwhelming view is that the enhanced interrogation techniques were absolutely essential in saving thousands of American lives and preventing further attacks," he said. "It was good policy. It was properly carried out. It worked very, very well."

[...]

Cheney said in the interview with Fox's Chris Wallace, according to a transcript, that he was aware of the waterboarding, "not specifically in any one particular case, but as a general policy that we had approved."

What Cheney fears is pretty obvious. First, he believes that the investigation into a few CIA officers who scandalously flouted the torture memos' rules for coercive interrogations could provide the sharp edge that might pry open the whole sordid program of systematized abuse and expose it to judicial and public scrutiny. It was a program that Cheney apparently sponsored and helped to design.

Secondly, Cheney fears that he could then become a target of investigation. He is especially vulnerable to prosecution because of the close interest he took in the most abusive interrogations. One might be able to persuade a slightly gullible grand jury that the "conditioning" or "exploitation" of prisoners (hypothermia, for example) does not constitute torture. But waterboarding universally has been considered torture since at least the times of the Great Inquisition. Cheney seems to think now that he needs to build a case that he was no more aware of actual instances of waterboarding than anybody else who was briefed on the CIA program.

Cheney may also be aware that his likeness has now been put on one of the "Torture Team" playing cards that the Center for Constitutional Rights has created ("Collect and prosecute them all"). He's in the big leagues now.

crossposted at unbossed.com

Purpose redacted

Among the documents that the ACLU forced the government to release is this CIA guide to its use of abusive rendition and interrogation techniques from late 2004 (PDF). It acknowledges that the goal of these processes is systematically to condition the prisoners into a state of "learned helplessness and dependence". And this in a document faxed to the Justice Department. By summarizing these abusive techniques in clinical fashion, the CIA has fashioned a deeply horrifying record of what it became under George W. Bush, one that in the past we might have associated with the Stasi's files.

Perhaps the most remarkable thing about this repulsive document is one of the many redactions. In the second (?) paragraph, the CIA describes the purposes of its interrogations of terrorist suspects at "Black Sites" (its term). At least one of those purposes is redacted. In other words, the purpose remains classified! This is one with the evolving series of justifications that the CIA has offered over the years for the interrogation program. It cannot decide quite what it wants the rest of us to believe was the ultimate rationale for treating prisoners in ways that plainly are unAmerican.

Here is what remains unredacted of the CIA's rationale for the abusive interrogation program:

The purpose of interrogation is to persuade High-Value Detainees (HVD) to provide threat information and terrorist intelligence in a timely manner, to allow the US Government to identify and disrupt terrorist plots [... redacted line]
[...] and to collect critical intelligence on al-Qa'ida [... 4 lines redacted]

[...] In support of information previously sent to the Department of Justice, this paper provides additional background on how interrogation techniques are used ...

Thus at least one of the stated purposes has been redacted here. That is a silent demonstration of what many have suspected all along, that under George Bush and Dick Cheney abusive interrogations were a policy in search of a rationale. Were they about obtaining intelligence from captives while it was still most current? Disrupting as many plots around the world as possible? Learning about Al Qaeda? Or some of the other reasons that have been proffered in the past? Identifying and arresting further terrorists? Building cases for prosecuting terrorist suspects? Fear of an imminent attack upon the US? Or just showing that the US was determined to 'take the gloves off', in Cheney's phrase? Even at this late date, the CIA can't bring itself to say.

As the ACLU's Alexander Abdo said to Greg Sargent, "This is the most detailed description provided by the CIA of its rendition program to date... It confirms accounts provided by victims of rendition.”

Those prisoner accounts of their experiences during extraordinary rendition flights and flights to Guantanamo prison, as I've remarked here repeatedly, go back to the beginning of 2002. Hence the earliest accounts predate by several months the attempts by the Bush administration lawyers to generate torture memos to justify retrospectively all manner of mistreatment of terrorist suspects, from "conditioning" to "coercion", that were already in common use around the globe. As the prisoner accounts show, the mistreatment had been systematized from the outset – very much in the manner described in this CIA memo (which has a section describing methods to be used in the capture and transfer of prisoners on rendition flights).

This fact leaves a great many Bush administration officials, including the authors of those egregious memos, exposed to prosecution for ordering or abetting torture and abuse of prisoners. They had relied upon legal memos to function as 'get out of jail free' cards, under the pretense that everybody from the White House down to the actual interrogator were just following the advice of the administration's lawyers. But much evidence has accumulated that that advice was cooked, with administration officials soliciting exactly the opinions they wanted and playing footsie with lawyers until the desired advice was forthcoming.

The Bush Administration claimed that Justice gave legal advice to the CIA and that the CIA followed and applied it. But the IG report reveals a strikingly different relationship. As the OLC memos were written, there was a sort of waltz between CIA and Justice lawyers in which different hypotheticals were offered up in solicitation of opinions—something on the order of “If we told you we did x, what would you say about it?” This suggests the OLC memos were effectively negotiated. It also appears that CIA requested a number of after-the-fact variations to protect practices that clearly exceeded guidance. Why does this matter? It undermines the ability of CIA employees and contractors to “rely in good faith” on the OLC memos, because it shows that OLC wasn’t really giving legal advice. Instead it was issuing “get out of jail free” cards. A good example comes with waterboarding: “With respect to two detainees at those sites, the use and frequency of one EIT, the waterboard, went beyond the projected use of the technique as originally described to DoJ. The Agency, on 29 July 2003, secured oral DoJ concurrence that certain deviations are not significant for the purposes of DoJ’s legal opinions.”

Now it is even clearer that the advice was several months too late to justify practices that had already been worked out, systematized, and put into practice. That reinforces the interpretation that the legal opinions were cooked, and thus that those implicated in the prisoner abuse cannot now claim that they were relying upon legal advice that they assumed in good faith to be reliable.

In fact, the 2004 CIA Inspector General's report on terrorist interrogations shows conclusively that many within the CIA did not believe that the official policies were legal. It reports that CIA officers feared and indeed assumed that they would be subject to investigation and prosecution for engaging in torture and abuse. Some CIA officials took a strong stance against the program on the grounds of its illegality.

The Inspector General’s review was launched by complaints coming from valued senior employees who felt that the Bush Program (as John Yoo has dubbed it) was wrong. One of them actually expresses his worry that those involved will be hauled before the World Court at some point because of [and that’s redacted!] This makes clear that good employees of the agency opposed the Bush Program, were vocal in their opposition, and focused concern on the program’s illegality. The OLC memos were intended to silence these complaints, but they only accentuated the agency’s morale problems by enmeshing it in obviously illegal and immoral conduct. By contrast, the number of CIA personnel involved in pushing it through and supporting it is tiny—probably not many more than two dozen—though their voices are heard very loudly.

crossposted at unbossed.com

Another Bush administration legal fiction

The ACLU finally has managed to force the Obama administration to release a less severely redacted version of the May 2004 report on the CIA's abusive treatment of terrorist suspects (PDF). The report was done by the CIA's Inspector General, John Helgerson, and (to judge by what remains unredacted) seems to be fairly critical of those abuses and of their legal underpinnings. There's plenty to say about the contents of this report – for example, the bizarre tortures it catalogues (summarized here).

One thing stood out in the early pages of the document: Bush administration lawyers wrote an undated memo sometime before June 16, 2003 which among other things advanced a flagrantly false interpretation of the UN Convention against Torture.

That memo, "Legal Principles Applicable to CIA Detention and Interrogation of Captured Al Qa'ida Personnel", does not appear to be publicly available yet. It was drafted by lawyers at the Justice Department's Office of Legal Counsel (almost certainly John Yoo) and then finalized by the CIA Office of General Counsel. Here is what the Helgerson report states the memo said about the UN Convention:

The analysis adds that "the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war."

The UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment says no such thing. The OLC/OGC lawyers evidently were insinuating that the Convention drew a very major distinction between the prohibitions against torture on the one hand, and against cruel, inhuman, or degrading treatment on the other. Article 2 of the Convention states explicitly that there are no circumstances that may be used to justify torture:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

It is true that the Convention does not repeat the Article 2 statement when it later discusses "cruel, inhuman, or degrading treatment". However that discussion (in Article 16) is extremely brief and to the point: that governments should prevent 'cruel etc. treatment' as they do torture and should give its victims the same legal recourse as victims of torture. There is no implication whatsoever in the Convention that "exigent circumstances" permit the use of cruel, inhuman, or degrading treatment.

Indeed, the US wrote the following to the UN Committee against Torture ten years ago regarding its implementation of the Convention (Report of the United States to the UN Committee against Torture, October 15, 1999, UN Doc. CAT/C/28/Add.5, February 9, 2000, para. 6):

No exceptional circumstances may be invoked as a justification of torture. US law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension.

So, when do the torture memos written by John Yoo and friends rise beyond the level of bad lawyering and into the much shadier territory of deliberate falsification for the purpose of facilitating, enabling, or encouraging torture? Because at that point I'd think even the timid Eric Holder's Justice Department would be forced to prosecute them.


crossposted at unbossed.com

Does anybody at the Washington Post read?

Anne Kornblut, one of the best WaPo reporters, makes a gross factual error her report on the circumstances under which terrorism suspects will be interrogated in the Obama administration. There's to be a new unit of specially trained interrogators. The unit's purpose allegedly will not be to obtain information to put the prisoners on trial, but "to glean intelligence, especially about potential terrorist attacks". That was also the thrust of George W. Bush's infamous interrogation programs. The new unit will be housed in the FBI but report directly to the National Security Council. It will operate under the rules set out in the newly (2006) revised Army Field Manual.

Kornblut parrots the line propagated initially by the Bush administration, and repeated by Democrats: that the AFM strictly adheres to the Geneva Conventions and prohibits all forms of torture, abuse, and degradation of prisoners. Quite the contrary is true. The new Army Field Manual rules (while a vast improvement over the outrageous practices used by the CIA and DoD and authorization from the Bush administration) do in fact specify ways that prisoners may be abused. The abuse is euphemistically termed 'separation' and codified in Appendix M of the Manual.

Here is Kornblut's assessment of the new interrogation policy:

Using the Army Field Manual means certain techniques in the gray zone between torture and legal questioning -- such as playing loud music or depriving prisoners of sleep -- will not be allowed. Which tactics are acceptable was an issue "looked at thoroughly," one senior official said. Obama had already banned certain severe measures that the Bush administration had permitted, such as waterboarding.

The phrase "gray zone" ought to be an immediate tip off that the author is spinning the truth. There is no legitimate doubt that the use of deafening noise and sleep deprivation to 'soften up' prisoners is torture and illegal in the US. It was the Bush administration that sought to convince Americans that long prohibited practices somehow fell into a middle ground between the legal and the illegal. They did succeed in convincing most major news outlets to refrain from calling torture 'torture', which is why reporters like Kornblut continue in this absurd pretense.

In any case, can Kornblut or her editors be bothered to read documents? The Army Field Manual (PDF) explicitly permits interrogators to use isolation and sleep deprivation on prisoners. References are to sections of Appendix M of the Manual. Prisoners may be confined in total isolation for up to 30 days, and even longer if approval is sought up the chain of command (M-29). Furthermore, the Manual states (on the very last page of its last appendix) that prisoners need not be permitted more than 4 hours of sleep per day (M-30). Anybody who goes for weeks on only four hours of sleep will quickly become subject to all the psychological disturbances that sleep deprivation is notorious for.

Parenthetically, I note a passage worthy of Franz Kafka in Appendix M of the Manual. It asserts blandly (M-4) that 'separation' "is consistent with the minimum humane standards of treatment required by US law, the law of war, and does not constitute cruel, inhuman, or degrading treatment or punishment as defined in the Detainee Treatment Act of 2005 and addressed in GPW Common Article III" (emphasis mine). The US is of course bound by more than the Detainee Treatment Act, but the Field Manual ignores that fact (making no mention, for example, of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). Instead, the Appendix consistently pretends that its procedures are acceptable because they are not banned by the 2005 legislation.

Valtin has a lengthy discussion of how the Army Field Manual codifies some of the Bush administration's torture practices.

Meanwhile, no word yet about whether the new government's interrogation unit will continue (as the CIA did under Bush) to employ Blackwater to fly terrorist suspects from their confinement in Guantanamo prison to secret prisons around the world, including such hell holes as Uzbekistan. The purpose of these 'extraordinary renditions' was to subject the prisoners to "special treatment", according to an internal Blackwater memo obtained by Der Spiegel. As if the torture employed at Gitmo were not special enough.

Incidentally, the memo also reveals that the CIA's contract with Blackwater to establish roving assassination squads was overseen by none other than Alvin B. Krongard, the former Executive Director of the CIA (and upon his retirement, a director of Blackwater). He is the brother of Bush's corrupt and partisan Inspector General for the State Department, Howard Krongard, whose hacktacular career we described here two years ago.

crossposted from unbossed.com

Plead guilty, it's easier, quicker, and cheaper for everyone

In 2004 the CIA Inspector General produced a damning report on the Agency's abusive interrogations of terrorist suspects under inhumane conditions of confinement abroad. Due of a FOIA request, that report will be made public on Monday. In advance of its release, Newsweek and the Washington Post report that CIA interrogators threatened at least one prisoner with a gun and with an electric drill. They also staged several mock executions to terrorize terrorist suspects. Under the UN Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as well as under federal law, it is a crime to threaten a prisoner with injury or death.


The CIA also reportedly charged prisoners a small fee to keep visits from friends and relatives down to a minimum.

Guard: Don't fight it, son... confess quickly... Before they get into the expensive procedures. If you hold out too long you could jeopardise your credit rating.

CIA Director: Mistakes were made

The Sunday Washington Post publishes an extraordinarily disingenuous op-ed (I know!) in which Leon Panetta, taking his cue from a foreign spook, argues that Congress should not hold anyone in the CIA accountable for past wrongdoing because the country needs to be "totally focused" on the present.

Last month, at a meeting overseas of intelligence service chiefs, one of my counterparts from a major Western ally pulled me aside. Why, he asked, is Washington so consumed with what the CIA did in the past, when the most pressing national security concerns are in the present? It was a very good question.

Panetta evidently did not point out to this foreigner that the US is a nation of laws, or that other significant parts of the federal government (such as the Justice Department and FBI, SEC, FEC, Treasury Department, the EPA, and Interior Department) regularly manage to investigate wrongdoing in the past (where wrongdoing traditionally is to be found) while performing other duties as well. It would be interesting to know whether the IRS is finding that tax cheats have adopted the Obama administration's line, "No investigating the past!"

Panetta lards his preposterous argument with several bizarre assertions. For example:

The CIA no longer operates black sites and no longer employs "enhanced" interrogation techniques.

Tell that to the hundreds of prisoners who are still held and abused in total isolation at Bagram.

The most galling passage, however, is this one:

The time has come for both Democrats and Republicans to take a deep breath and recognize the reality of what happened after Sept. 11, 2001. The question is not the sincerity or the patriotism of those who were dealing with the aftermath of Sept. 11. The country was frightened, and political leaders were trying to respond as best they could. Judgments were made. Some of them were wrong. But that should not taint those public servants who did their duty pursuant to the legal guidance provided. The last election made clear that the public wanted to move in a new direction.

In other words, sincerely frightened fools – as long as they're patriotic - may arrange to violate the law with impunity if they make sure legal memoranda get passed around. And when one party loses the White House in an election, all its crimes get forgiven.

crossposted at unbossed.com

IG report on Bush's warrantless surveillance program

The shameful FISA 'modernization' law passed by Congress last July, which retroactively legalized the egregiously illegal (and still mysterious) electronic surveillance of Americans instituted by George Bush, had at least one modestly useful provision: It required the inspectors general of the DoD, DoJ, NSA, CIA, and ODNI to produce a report on the history and scope of the secret Bush surveillance. The unclassified version of the IG report has now been made public (PDF).

It tells us few details about the surveillance programs and its conclusions are so tame as to be risible. On the other hand, it does contain some food for thought.

First, very strikingly, several top Bush administration officials refused to be interviewed by the inspectors general for this report. The IG investigation was mandated by Congress in exchange (it was a terrible 'bargain') for permitting the lawlessness of the Bush surveillance programs to be swept under the carpet permanently. But the following key figures in the White House, the DoJ, and the CIA gave the inspectors general the brush off: Andrew Card (Bush's Chief of Staff); David Addington (Cheney's CoS and Counsel); John Ashcroft (AG); John Yoo (DoJ's Office of Legal Counsel); and George Tenet (CIA).

Second, the report acknowledges what many of us surmised in 2007 from circumlocutions used by Alberto Gonzales in testimony to the Senate Judiciary Committee - that what Bush termed the 'Terrorist Surveillance Program' (the interception of international communications into the US by suspected Al Qaeda operatives) constituted only one of the warrantless surveillance programs that Bush was authorizing without seeking permission from the FISA Court. The IG report lumps all of Bush's other warrantless programs, essentially mysterious to us, under the rubric "Other Intelligence Activities". Together the TSP and the OIA are termed the "President's Surveillance Program" (PSP).

The inspectors general tell us nothing substantive about these "Other Intelligence Activities". Their report does however note that when John Yoo's legal memos (see below) were reviewed in 2003 by DoJ officials Jack Goldsmith, Patrick Philbin, and James Comey, they were found to be particularly weak in regard to justifying the "Other Intelligence Activities".

Third, it's worth emphasizing that the repeated presidential authorizations for warrantless surveillance programs, for years on end, were made under a presidential assertion that a more or less permanent state of emergency existed. The Justice Department's Office of Legal Counsel did its part in undermining the Constitution by holding, again and again, that the existence of a threat of terrorism within the United States made warrantless surveillance "reasonable" under the Fourth Amendment. The 'evidence' for such a permanent threat, assembled regularly by the CIA, consisted in part of the surveillance that had already been conducted without warrant. In other words, it was a self-perpetuating cycle.

The Presidential Authorizations were issued at intervals of approximately every 45 days. As described in the next section, with each reauthorization the CIA and later the NCTGC prepared an assessment of current potential terrorist threats and a summary of intelligence gathered through the PSP and other means during the previous authorization period. The Department of Justice's Office of Legal Counsel reviewed this information to assess whether there was "a sufficient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to [continue] to authorize the warrantless searches involved" in the program. The Office of Legal Counsel then advised the Attorney General whether the constitutional standard of reasonableness had been met and whether the Presidential Authorization could be certified "as to form and legality." Each of the Presidential Authorizations included a finding to the effect that an extraordinary emergency continued to exist, and that the circumstances "constitute an urgent and compelling governmental interest" justifying the activities being authorized without a court order.

Fourth, Alberto Gonzales opined to the inspectors general that the involvement of the Justice Department in this legal sham every 45 days was important because (a) it helped to convince the private telecoms to go along with programs that violated the clear letter of the law, and (b) it would help in the event of future investigations into those involved in implementing the illegal programs.

[Alberto Gonzales] also stated that it was important that the cooperating private sector personnel know that the Attorney General had approved the program. In addition, Gonzales said that for "purely political considerations" the Attorney General's approval of the program would have value "prospectively" in the event of congressional or inspector general reviews of the program.

Fifth, from 2001 to May 2003 John Yoo was the only person at the Office of Legal Counsel, and one of only three non-FBI personnel at the Justice Department, to be read into the warrantless surveillance programs. Yoo's nominal supervisor at OLC, Jay Bybee, was kept out of the loop and had "no idea" how his deputy John Yoo drafted the OLC memos that (according to Gonzales) gave "a sense of legitimacy" to the programs. Those memos were of course scandalously incompetent, a fact that caused consternation at OLC after Yoo's departure.

Sixth, the lawyers got involved in generating opinions in support of the legality of the programs only after Bush had begun authorizing them in October 2001. That was when Attorney General Ashcroft was read into the program, and the same day he authorized it. At OLC, John Yoo did not produce his first memo supporting the legality of these warrantless surveillance programs until November 2, 2001. The NSA lawyers as well were kept out of the loop until after Bush authorized the program in consultation with NSA Director Hayden – at which time the NSA lawyers dutifully "supported the lawfulness of the resulting program".

Seventh, George Bush's account of the genesis of the warrantless surveillance is definitively shown to be false (as I had surmised here two years ago). After the controversial programs became public, Bush tried to portray himself as an innocent bystander in their development. Bush wanted voters to believe that he'd merely implemented something that the NSA Director had wanted to do.

The spying that would become such a divisive issue for the White House and for General Hayden grew out of a meeting days after the Sept. 11 attacks, when President Bush gathered his senior intelligence aides to brainstorm about ways to head off another attack.

"Is there anything more we could be doing, given the current laws?" the president later recalled asking.

General Hayden stepped forward. "There is," he said, according to Mr. Bush's recounting of the conversation in March during a town-hall-style meeting in Cleveland.

By all accounts, General Hayden was the principal architect of the plan. He saw the opportunity to use the N.S.A.'s enormous technological capabilities by loosening restrictions on the agency's operations inside the United States.

Well, not quite all accounts. At the time this NYT report appeared, I commented that it was incoherent because its sources tried to portray Cheney –improbably - as doing little more than cheerleading on behalf of Hayden's initiative. More likely, I thought, the pressure for warrantless surveillance programs came from Cheney first, and Hayden eventually bowed to the pressure.

The new IG report confirms that my interpretation of events was right (from page 5):

In the days immediately after September 11, 2001, the NSA used its existing authorities to gather intelligence information in response to the terrorist attacks. When Director of Central Intelligence Tenet, on behalf of the White House, asked NSA Director Hayden whether the NSA could do more against terrorism, Hayden replied that nothing more could be done within existing authorities. When asked what he might do with more authority, Hayden said he put together information on what was operationally useful and technologically feasible. This information formed the basis of the PSP [President's Surveillance Program].

Shortly thereafter, the President authorized the NSA to undertake a number of new, highly classified intelligence activities.

So, the IG report has nothing about a dramatic face-to-face meeting between Bush and Hayden. Instead, Tenet was sent to pressure Hayden to have the NSA do more, and we can infer that Hayden responded that he would expand surveillance if he received explicit authorization.

This section of the history of the programs is critical, but notice how briefly and vaguely the inspectors general treat it. In particular, nobody is identified as having sent Tenet to talk to Hayden. Tenet merely chats with Hayden "on behalf of the White House". Who in the 'White House'? We're not told, and that fact speaks volumes I think. It was Cheney, and the inspectors general don't care to say so at least in their unclassified version of the report.

Eighth, much of the declassified IG report is devoted to a detailed narrative of how lawyers at the post-Yoo Justice Department refused to continue backing the surveillance programs in March of 2004. Little here appears to be new, though I do not remember knowing that after Bush reauthorized the programs without DoJ concurrence, FBI Director Mueller told Bush that he would remove the FBI from participation in the programs. Mueller also threatened to resign if Bush required the FBI to continue participating in the program.

Ninth, in 2006 the Justice Department's Inspector General investigated the value to the FBI of the intelligence generated by the warrantless surveillance programs. As referred to in this combined report, the classified 2006 study appears to have found that the programs generated lots of useless 'leads' and relatively little of any value (it "concluded that although PSP-derived information had value in some counterterrorism investigations, it generally played a limited role in the FBI's overall counterterrorism efforts").

Meanwhile Michael Hayden as CIA director, and some of his immediate subordinates, have touted the importance of PSP-derived information in CIA activities. However the Inspector General for the CIA found that the CIA was not tracking the information it received in such a way as to be able to substantiate such claims about its importance. CIA officials also told the Inspector General that much of the PSP-derived information was "vague or without context", rendering it of little use.

Tenth, the DoJ Inspector General's report found that Alberto Gonzales' testimony about the warrantless surveillance programs to the Senate Judiciary Committee was "confusing, inaccurate, and had the effect of misleading" those who hadn't been read into the program. Gonzales falsely told the Committee that the March 2004 dispute between the DoJ and the White House was unrelated to the "Terrorist Surveillance Program" whose existence Bush had acknowledged. Gonzales also falsely said that DoJ lawyers had no concerns about that program's legality.

Rather bizarrely, however, the DoJ Inspector General's report concluded that Gonzales "did not intend to mislead Congress".

crossposted at unbossed.com

WSJ: Obama set to reverse himself on criminal interrogations

Last year while campaigning candidate Barack Obama used to boast about a law he helped to enact in the Illinois state legislature, which required all police interrogations to be videotaped. This mandate of transparency, he said, would discourage abusive interrogation practices in the future and serve to hold accountable any public servant who dared to engage in them. Today, however, Evan Perez and Siobhan Gorman of the Wall Street Journal report that President Obama is on the verge of ordering the Justice Department to block the disclosure of evidence of extremely brutal interrogations – on the grounds that it would be too embarrassing for the public to see quite how abusively government employees behaved.

The three videotapes in question, from 2005, show the interrogations of multiple suspects (none ever charged with any crimes). Officers inflicted a variety of diabolically clever forms of torture on them as well as plain old physical brutality. For example, one preferred method of "interrogation" was to bang a suspect's head against the wall repeatedly.

Although the Justice Dept. wishes to publish the tapes, in compliance with an ACLU lawsuit seeking their release, some of the wise establishment types surrounding the new president reportedly are urging him to reverse his earlier position on transparency, accountability, and the rule of law. Their reasons?

According to the WSJ, they argue that release of the tapes would hurt the government's credibility, hand a propaganda victory to America's enemies, and alienate some officers - who might not be willing in the future to engage in such practices if their recent misdeeds are not concealed. As one government official commented anonymously, making public the details of government wrongdoing would make officers "disinclined to take any risks in the future."

And there you were thinking that the whole point of exposing criminal deeds was to disincline people from repeating them in the future.

A tip of the hat to Milo for alerting me to the WSJ report.

The Just-Following-Orders defense

Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel under George W. Bush, offers appallingly bad advice about what to do in regard to "the Bush administration's harsh, abusive and illegal interrogation program". His solution: Let whatever investigations now going on run their course and then forget the whole matter. No Congressional hearings, no special commission, no DOJ task force, no special prosecutor. Just wind down the pitiful few investigations that have occurred, publish some of the documents they turn up, but make sure to turn the lights off when you're done.

The main reason that law-breakers should not be prosecuted, in his estimation, is that the people involved won't take it well. They're already quite unhappy at the prospect of being held accountable, you see, given that they were just following orders.

The investigations and public recriminations of the past few years have led many government lawyers to be more risk-averse and politically sensitive than ever. They have also had a harmful effect on the lawyers' clients, especially in the CIA. In response to the many investigations, CIA officials are "lawyered up" and are drawing down their legal liability insurance. None of these officials are likely to go to jail. But the ordeal of answering subpoenas, consulting lawyers, digging up and explaining old documents, and racking one's memory to avoid inadvertent perjury is draining, not to mention distracting, for those we ask to keep the country safe.

And worse, it has spooked the intelligence community. When the CIA was asked to engage in aggressive tactics early in the Bush administration, it knew from bitter experience that the political winds would change and that it might be subject to "retroactive discipline." And so it sought approval from the president and his Cabinet, informed congressional leadership many times about what it was doing and got what it thought were airtight legal opinions from the Justice Department.

But these safeguards failed, and the CIA is once again mired in investigation and controversy. The lesson learned by many at the agency is that politically sensitive counterterrorism actions should be avoided, even if they are deemed legal and even if they have the express approval of political officials. We are going to be living with this skittishness for a long time, to the detriment of our security.

You'd have thought that getting a letter from the Office of Legal Counsel authorizing violations of the laws on torture would be good enough to protect you in the future. But oh, no, you'd be mistaken! You can actually get prosecuted for obeying illegal orders. Or nearly as bad, have to rack your memory in order to tell the truth about those orders. That's practically torture, right there.

The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution.

'Mistakes' must be the terminus technicus at the Office of Legal Counsel for what ordinary civilians call 'crimes'. It's also interesting to learn that the Justice Department considers "reputational losses" to be the most severe penalty, or 'retribution', that can be inflicted on criminals. Once they've achieved that, trials leading to convictions and jail time are pretty much superfluous.

crossposted at unbossed.com

Advocacy vs. cheerleading

I wonder if this good news will help to convince some Democrats that hard-nosed advocacy is more effective than silent hand-wringing or wishful thinking or worst of all, mere cheerleading for Democratic rule? That demanding reform is a mark of loyalty to their principles, rather than an embrace of the opposite? That the time to raise one's voice is before, not after, disastrous 'compromises' have been set in stone? That Democratic politicians respond to pressure, not to its absence?

John Brennan, the deputy to George Tenet when the CIA was forging and implementing an array of illegal practices including the Bush administration's torture regime, a man who has since then defended and justified Bush's rendition, detention, and interrogation policies, was being widely touted as a likely choice to head the CIA under Barack Obama. This and several other liberal blogs decried the possibility, arguing that the next administration needed to break with the past and be seen to be doing so. And voila. Today Brennan announced that he was withdrawing his name from consideration for any intelligence posts in the next administration because of the opposition he has aroused. He did not want to be a distraction, he said.

Obama's advisers had grown increasingly concerned in recent days over online blogs that accused Brennan of condoning harsh interrogation tactics on terror suspects, including waterboarding, which critics consider torture.

His withdrawal was a concession to a political reality that Democratic activists created by concerted and principled opposition. It was not the result of an epiphany for Brennan or a sudden contrition over the positions he's adopted. Quite the opposite, in fact.

His letter of withdrawal, available here, shows that Brennan continues to deny any responsibility for the illegal policies. He says he "was not involved" in the decisions about the policies; and that his "criticism of these policies within government circles" was the reason he was passed over for promotion by the Bush administration. Those claims cannot easily be tested, of course, since they concern opinions and behavior manifested (if at all) only behind closed doors. Brennan even asserts now that he was (always?) "a strong opponent" of "coercive interrogation tactics" tout court. It's a claim that does not really measure up against his public statements - although Brennan later did renounce one specific technique, waterboarding. In any case, Brennan refuses to acknowledge that he was being criticized in particular for promoting and defending some of those policies after leaving the CIA. His public statements are the one arena in which we can assess his beliefs, and in that arena he looked rather shabby. Brennan can't bring himself in his letter to admit even this much, that he needed to explain his public positions on the CIA's legacy of controversial illegal policies.

Thus it's clear that what led to Brennan's withdrawal was not a sudden attack of conscientiousness. It was, instead, a concession to political reality. Activism creates such political realities.

crossposted at unbossed.com

Sorting out Bush's torture techniques

To find a vocal critic of the Bush administration's torture regime stumbling around while discussing its components is a little disconcerting. It confirms what I've long suspected - that even as bits of the torture program have been exposed little by little, the Bush administration managed never the less to sow confusion over those revelations. People really need to sort this out before the Obama administration comes to grip with its predecessor's vile record.

Briefly, the background is this: James Gordon Meek reported that Democrats like the "anti-torture views" of John Brennan, Barack Obama's chief adviser on intelligence matters. Brennan was the deputy to former CIA director George Tenet at the time that Bush's torture regime was implemented. It does seem strange to describe Brennan as "anti-torture" just because he's renounced waterboarding in the last few years and allowed that "the dark side has its limits". Glenn Greenwald documents how Brennan has advocated or made excuses for extraordinary rendition specifically and Bush's detention and interrogation policies generally.

Meek and Greenwald then got into a back and forth over Brennan's anti-torture credentials. Meek argues faux-naively that extraordinary rendition per se can be dissociated from the torture that awaits prisoners handed over to countries that routinely practice torture. Meek says nothing about the spiderweb of America's own secret prisons where Bush administration prisoners have been flown to be tortured.

In any case, Greenwald responded to Meek's tendentious argument with a certain degree of confusion about what is what in Bush's torture regime:

The most incriminating aspect of Brennan's views, in my opinion, is his support for the Bush administration's "enhanced interrogation techniques." Since he says he opposes waterboarding and isn't on record opposing anything else, one can reasonably assume that must include some combination of things like stress positions, forced nudity, hypothermia, sleep deprivation, exploitation of paranoias, extreme isolation, hanging by the wrists, threats, and other previously forbidden techniques authorized by the Bush administration.

This needs sorting out. Several of the things Greenwald lists are not, apparently, part of what the Bush administration terms "enhanced interrogation techniques".

To judge by published reports, these consisted of a discrete and detailed list of coercive techniques, including waterboarding, to be used only with high-level authorization against specific prisoners...those who are described typically as "hardened" or "high-value" al Qaeda suspects. The CIA has claimed that "enhanced interrogation techniques" have been used against only about 30 prisoners. The list of "enhanced techniques" originally was approved at a White House meeting (in 2002, it seems) of Dick Cheney, Donald Rumsfeld, Condoleezza Rice, George Tenet, Colin Powell, and John Ashcroft. During the next year or more, requests for authorization to use "enhanced" techniques against specific prisoners were, reportedly, discussed at several further meetings of the National Security Council Principals Committee.

But "enhanced interrogation techniques" are far from the only forms of abuse meted out to prisoners under Bush. They shouldn't be confused with the underlying programs of abusive treatment that were inflicted on many or all detainees abroad. For the latter, the Bush administration has used the term "exploitation". It was partly to clarify the distinction between the much-discussed "enhanced interrogation techniques" and the less understood but more widespread "exploitation" that I wrote this Abbreviated History of Exploitation Processes.

Abuse of prisoners in Bosnia and Afghanistan began shortly after the Sept. 11 attacks. By December 2001 at the latest, the Bush administration began to try to systematize that abuse by reverse-engineering techniques used in the military's SERE training schools. These existed to train US military personnel in techniques they'd need if captured by an authoritarian regime. The training included systematic psychological abuse of the kind practiced on American POWs during the Korean War. It was these "exploitative" practices in particular that the Bush administration decided in 2001 to adapt and apply against terrorism suspects. They became the baseline standard of abuse meted out to nearly all detainees held in secret prisons or transferred to Guantanamo. "Exploitation" focuses principally on prolonged isolation, sensory deprivation/overload, disorientation, stress, extremes of noise, light, and heat, forced nakedness, sexual humiliation, and generally creating psychological confusion and a state of infantile dependency. The result frequently is extreme mental degradation. Prisoners often become suicidal.

A few of these methods were later incorporated into the "enhanced interrogation techniques" so there was some overlap with baseline "exploitation". But it's absolutely vital to keep them distinct. Because the Bush administration and its apologists have tried to minimize the extent of their crimes by focusing all attention on the victims of "enhanced" techniques – who are few in number and can be depicted more easily as dangerous terrorists.

"Exploitation" is used to establish mental conditions favorable to manipulative interrogations. Many of the prisoners "exploited" were never in fact interrogated, or only in a very cursory way. Even after the US military and CIA lost interest in prisoners or concluded that they had no connection to terrorism, the prisoners often continued to be subject to "exploitation" for months or years on end. More to the point, "exploitation" has continued to be the standard for mistreating prisoners at Guantanamo down to this day. It's not the exception, it's the rule.

And since John Brennan has sought to justify extraordinary rendition flights, during which prisoners are "exploited" most repulsively, then it's very difficult to see how he has done anything other than align himself with the Bush administration's policy of torture.

crossposted at unbossed.com

America’s slave ships

Last year I argued in America’s slaves that the networks created by Bush’s CIA for purchasing (or seizing), for transporting, brutalizing, and holding without trial undifferentiated masses of foreign men, should not be rationalized as just a different form of imprisonment. They aren’t being treated as either war captives or criminals. Instead, I believe, the closest analogue for this system is slavery. It’s not the slavery of economic exploitation, of course, but the display of raw, unchecked power, of domination, of authority. Under Bush, when you get right down to it, this new slavery came into existence in order to crush out the very idea of resistance to his will.

Today, the Guardian newspaper highlights another dimension to the vile network created by George W. Bush: slave ships.

The Guardian reports that there is finally some movement in the British Parliament to investigate the longstanding allegations that the British island of Diego Garcia, where the US leases an air base, is one of the CIA’s black sites where men are held secretly and tortured. From the Guardian:

The all-party foreign affairs committee is to examine long-standing suspicions that the agency has operated one of its so-called "black site" prisons on Diego Garcia, the British overseas territory in the Indian Ocean that is home to a large US military base.

Lawyers from Reprieve, a legal charity that represents a number of detainees at Guantánamo Bay, including several former British residents, are calling on the committee to question US and British officials about the allegations. According to the organisation's submission to the committee, the UK government is "potentially systematically complicit in the most serious crimes against humanity of disappearance, torture and prolonged incommunicado detention".

Clive Stafford Smith, the charity's legal director, said he was "absolutely and categorically certain" that prisoners have been held on the island. "If the foreign affairs committee approaches this thoroughly, they will get to the bottom of it," he said.

The government of Tony Blair was pressed many times by MPs about these allegations, but always fell back upon the Bush administration’s denials. The British have never actually looked into the matter—even though Gen. Barry McCaffrey said that prisoners are held at Diego Garcia; even though the torture flight logs amassed by investigators identified a CIA flight from Washington to Diego Garcia on Sept. 11, 2002 (shortly after Ramzi Binalshibh was captured); even though the report to the European Council by investigator Dick Marty stated …

"We have received concurring confirmations that United States agencies have used Diego Garcia, which is the international legal responsibility of the UK, in the 'processing' of high-value detainees."

And even though the island in the Indian Ocean retains a small force of British military personnel as customs officers and police, the British government has until now never bothered to discover whether its territory is being used to violate international laws on human rights.

If allegations of secret imprisonment and torture aren’t sufficient to embarrass the British government into action, then perhaps talk of slave ships might be.

One possibility which the foreign affairs committee may explore is that suspects have been held on a prison ship off the coast of Diego Garcia. The UN special rapporteur on torture, Manfred Nowak, has said that he has heard from reliable sources that the US has held prisoners on ships in the Indian Ocean. There have also been second-hand accounts from detainees at Guantánamo of prisoners being held on US naval vessels.

One detainee told a researcher from Reprieve: "One of my fellow prisoners in Guantánamo was at sea on an American ship with about 50 others before coming to Guantánamo. He told me that there were about 50 other people on the ship; they were all closed off in the bottom. The people detained on the ship were beaten even more severely than in Guantánamo."

Until now, there have been only a few stray comments in print about the allegations that the US Navy is keeping torture vessels afloat, allegations that even the U.N. felt obliged to describe as rumors.

The United Nations says it has learned of serious allegations that the US is secretly detaining terrorism suspects, notably on American military ships.

The special rapporteur on torture, Manfred Nowak, said the claims were rumours at this stage, but urged the US to co-operate with an investigation…

He said that according to the reports, the ships were believed to be in the Indian Ocean.

The British were actively involved in the Indian Ocean slave trade until 1807. Two hundred years later, they seem to be back in business.

crossposted from unbossed.com

The CIA's black sites are back

Today's New York Times reveals that there have been even more Bush administration torture memos than the notorious 2002 torture-brief written by John Yoo. The new memos (which I'm tempted to call Yoo Two) have received plenty of attention. What hasn't been widely noted is the explicit statement in the NYT that the infamous and semi-secret "black sites" are back in use around the globe.

Torture Inc. was just off on vacation, as many of us suspected all along.

Here's what the Times has to say:

But in July [of 2007], after a monthlong debate inside the administration, President Bush signed a new executive order authorizing the use of what the administration calls “enhanced” interrogation techniques — the details remain secret — and officials say the C.I.A. again is holding prisoners in “black sites” overseas.

"Black sites" are the hell-holes in which the CIA had been torturing prisoners until George Bush ordered them closed last year, and the prisoners transferred to Guantanamo. At least, that's what Bush appeared to say that he had done. Here's the BBC's interpretation of Bush's Sept. 6, 2006 speech, which was typical of how journalists interpreted Bush's statements:

Mr Bush said there were now no terrorist suspects under the CIA programme.

Mr Bush said he was making a limited disclosure of the CIA programme because interrogation of the men it held was now complete and because a US Supreme Court decision had stopped the use of military commissions for trials...

All suspects will now be treated under new guidelines issued by the Pentagon on Wednesday, which bring all military detainees under the protection of the Geneva Convention.

All suspects? Forever into the future? Here is what Bush actually said:

I'm announcing today that Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin al-Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantanamo Bay. They are being held in the custody of the Department of Defense. As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice...

As we prosecute suspected terrorist leaders and operatives who have now been transferred to Guantanamo, we'll continue searching for those who have stepped forward to take their places. This nation is going to stay on the offense to protect the American people. We will continue to bring the world's most dangerous terrorists to justice -- and we will continue working to collect the vital intelligence we need to protect our country. The current transfers mean that there are now no terrorists in the CIA program. But as more high-ranking terrorists are captured, the need to obtain intelligence from them will remain critical -- and having a CIA program for questioning terrorists will continue to be crucial to getting life-saving information.

Some may ask: Why are you acknowledging this program now? There are two reasons why I'm making these limited disclosures today. First, we have largely completed our questioning of the men -- and to start the process for bringing them to trial, we must bring them into the open. Second, the Supreme Court's recent decision has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as "Common Article Three" applies to our war with al Qaeda. This article includes provisions that prohibit "outrages upon personal dignity" and "humiliating and degrading treatment." The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act -- simply for doing their jobs in a thorough and professional way.

This is unacceptable.

The speech seemed to me to be tip-toeing around the very thing that reporters were happy to assume: That in the future the military would take charge of holding and interrogating all terrorist suspects captured overseas. That inference had no basis in the speech, as far as I could see, aside that is from the fact that the military had just taken custody of a small group of CIA prisoners, whom Bush identified.

The part of the speech that I put into bold (above), in particular, seemed to suggest that the CIA very likely would be back into the torture racket soon enough, whenever new suspects had been seized somewhere.

In August 2007, Jane Mayer published a good history of the CIA black sites in the New Yorker. She surmised, among other things, that the wording of a new Executive Order from Bush suggested that Torture Inc. was not in fact out of business, as so many had assumed.

The program was effectively suspended last fall, when President Bush announced that he was emptying the C.I.A.’s prisons and transferring the detainees to military custody in Guantánamo. This move followed a Supreme Court ruling, Hamdan v. Rumsfeld, which found that all detainees—including those held by the C.I.A.—had to be treated in a manner consistent with the Geneva Conventions. These treaties, adopted in 1949, bar cruel treatment, degradation, and torture. In late July, the White House issued an executive order promising that the C.I.A. would adjust its methods in order to meet the Geneva standards. At the same time, Bush’s order pointedly did not disavow the use of “enhanced interrogation techniques” that would likely be found illegal if used by officials inside the United States. The executive order means that the agency can once again hold foreign terror suspects indefinitely, and without charges, in black sites, without notifying their families or local authorities, or offering access to legal counsel.

The C.I.A.’s director, General Michael Hayden, has said that the program, which is designed to extract intelligence from suspects quickly, is an “irreplaceable” tool for combatting terrorism. And President Bush has said that “this program has given us information that has saved innocent lives, by helping us stop new attacks.”

It came as little surprise today, then, to see the NYT report that the black sites are back in the business of cruelly treating, degrading, and torturing prisoners.

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The rest of the Times' story is highly important as well. It chronicles how the Justice Department secretly reversed its public disavowal (in late 2004) of John Yoo's torture memo. Shortly after Alberto Gonzales was appointed Attorney General in Feb. 2005, he endorsed another (heretofore secret) memo written by the new head of the OLC, Steven Bradbury.

It appears that Bradbury was brought in to the job specifically to put down the revolt by top Justice Department's lawyers (led by Deputy AG James Comey) against some of the national-security excesses being committed by the Bush administration. He quickly produced a memo that authorized a variety of vicious CIA interrogation techniques, including waterboarding and hypothermia. Later in 2005, while Congress was considering legislation to prohibit "cruel, inhuman, and degrading" treatment of prisoners, Bradbury issued another secret brief declaring that none of the CIA's methods were cruel, inhuman, or degrading.

The Times states that "most lawmakers" did not know the latter memo even existed. I'd like to know which lawmakers did know. That knowledge would seem to make them a party to crimes against international law.

crossposted from unbossed.com

CIA finally fessing up to waterboarding

Unless I'm mistaken, the CIA and the Bush administration generally have always refused to confirm or deny that they employ the torture technique to which they've applied the euphemism "waterboarding". Even after Dick Cheney endorsed it in a radio interview last October (a story broken at unbossed.com), the administration tried to pretend that he had done no such thing.

This evening, ABC News is reporting that (anonymous) current and former CIA officials have stated that the CIA has now banned the use of waterboarding. It would seem to be the closest thing yet to official confirmation that the Bush White House authorized waterboarding of prisoners.

The controversial interrogation technique known as water-boarding, in which a suspect has water poured over his mouth and nose to stimulate a drowning reflex, has been banned by CIA director Gen. Michael Hayden, current and former CIA officials tell ABCNews.com.

The officials say Hayden made the decision at the recommendation of his deputy, Steve Kappes, and received approval from the White House to remove water-boarding from the list of approved interrogation techniques first authorized by a presidential finding in 2002.

The officials say the decision was made sometime last year but has never been publicly disclosed...

While new legislation reportedly gave the CIA the leeway to use water-boarding, current and former CIA officials said Gen. Hayden decided to take it off the list of about six "enhanced interrogation techniques."

I'm not sure how to reconcile the last two sentences quoted, since the "new legislation" in question dates to 2007 rather than 2006. Perhaps the penultimate sentence should more accurately read "...sometime within the last year..."?

Anyone, one cheer for the CIA torture regime:

While welcoming the move, some critics say the CIA did not go far enough.

"I can say it's a good thing, but the fact remains that the entire program is illegal," John Sifton of Human Rights Watch told ABCNews.com.

As a result of the decision, officials say, the most extreme techniques left available to CIA interrogators would be what is termed "longtime standing," which includes exhaustion and sleep deprivation with prisoners forced to stand, handcuffed with their feet shackled to the floor.

"It is a very severe form of torture which causes tremendous psychic toll to people," said Sifton.

Regarding psychological torture, I'll draw your attention to this excellent opinion piece by James Ross of HRW

The crystal blue waters and bright, hot day begged for a jump in the surf. But my friend, a refugee from Ethiopia, just wouldn't go near the ocean. "I haven't gone swimming for years," he said, shaking his head sadly, "Ever since the regime tortured me when I was a student. They stuck my head in dirty water until I thought I would drown."

People tend to think of torture as physical...

But torture is as likely to be mental as well as physical. The iconic photo of the Abu Ghraib torture scandal -- the hooded man on a box with outstretched arms -- was being subjected to psychological torture. The wires attached to his arms went nowhere -- he merely believed he would be subjected to electric shock.

It's worth noting that today's revelation comes only one day after ABC revealed some other embarrassing information about the use of waterboarding, which likewise appeared to confirm that the CIA has been using that form of torture:

When Khalid Sheikh Mohammed was strapped down to the water-board, he felt humiliated -- not by the treatment but by the fact that a woman, a red-headed CIA supervisor, was allowed to witness the spectacle, a former intelligence officer told ABC News...

A current CIA official says that KSM actually told interrogators the only reason he confessed was because of the water-boarding.

So on two consecutive days we see current and former CIA officials confirming in different ways that the CIA has been using waterboarding.

What are we to make of today's revelation? There's a real chance that CIA types decided that yesterday's leak didn't look very good, and they set about trying to reassure the public that all that torture is a thing of the past. I notice, for example, that ABC says the okay to ban waterboarding came from "the White House", rather than from a named official.

Could be true, then, that waterboarding has been banned by somebody or other...but one should never believe anything coming from the CIA without independent evidence. In any case, the CIA did not say that it has ceased contracting out waterboarding or any of the other currently favored forms of torture, whether to free-lancers or to foreign countries. Nor has the CIA necessarily closed down its secret prisons around the globe. It also left most of its preferred list of tortures intact.

So maybe less than one cheer for the CIA's torturers; considerably less than one.

crossposted from unbossed.com