[h/t Revere at Effect Measure.]
October 28th, 2007
The United Kingdom Council for Psychotherapy has issued a statement on torture to add to those of other mental health organizations:
UKCP Statment on Torture
The United Kingdom Council for Psychotherapy condemns the use of physical and mental torture. The UKCP’s focus is on promoting professional standards and the well being of clients/patients, including survivors of torture, it would therefore be abhorrent for a member to be involved in any way with mistreatment of detainees in any circumstances.
Some professional bodies have made statements opposing torture and UKCP seeks to work with these and other organisations to proscribe more effectively torture, including psychological duress, to reduce the chances of professional involvement and failures such as not reporting abusive practices. Unfortunately recent history has revealed the need for more than ethical guidelines. [i]
UKCP believes that effective professional opposition to torture also requires that organisations:
1. Help registrants/members become aware of International law and their link to professional requirements that relate to torture, mistreatment and interrogation.
2. Establish mechanisms to ensure that human rights breaches involving mistreatment are investigated by professional bodies and criminal prosecutions assisted where relevant.
3. Promote the documentation of torture and abuse that supports evidence, especially when it might involve health professionals or psychologists.
4. Set up systems that will assist professionals who know about or suspect mistreatment to act morally, even when they have divided loyalties.
5. Share professional knowledge with care in order to avoid assisting torturers or training people likely to pass on information to others who may abuse.
6. Promote within training and education of members the limitations of intelligence gathering using duress and factors contributing of human rights abuses by professionals.
7. Promote understanding of the impact of mental and physical torture on the health of individuals and their families, including the special needs of women and children survivors and those who come from groups with history oppression.
8. Research the effectiveness of treatments and responses to those who have been tortured.
9. Work with other agencies to identify people who have been tortured and appropriate responses to their complex needs.
10. Ensure that survivors and people at risk of torture in other countries are not returned there.
International law never succeeded is eliminating torture but it prescribed standards and, for a time, it seemed many governments were at least prepared to pay lip service to these values. While treaties against torture and mistreatment have often been broken, at times on an immense scale and over decades, for the most part governments did not seek to vary the prohibitions.
Now there is not only a need to work to eliminate torture but also to ensure that the international standards set up or strengthened after the horrors of WWII are not degraded. Sadly, members of the psychological and health professional communities have been involved in the dilution of standards. This has happened despite general codes of ethics and sometimes even when there is more specific guidance. [ii]
Psychotherapists, as members and fellows of these communities, should be working to ensure that further abuse especially that linked to the behaviour of professionals, does not take place. UKCP therefore seeks to work with related organisations in promoting standards and policies that defend the human rights of detainees and help practitioners avoid being compromised by conflicting loyalties.
In the western world at least there has been growing use of psychological manipulation such as deliberate disorientation, stimuli overload, prolonged isolation, restriction of movement, sleep deprivation, exploitation of fears, sexualised verbal abuse and other forms of humiliation. [iii] It is easy to point to examples such as the activities at Abu Ghraib and deaths that were linked to methods of inducing psychological duress.
It is unsafe to assume that the psychological consequences of what has been variously called “torture lite”, “softening up” or “coercive interrogation” are minor. One study suggests that mental and physical torture cause the same amount of harm and are indistinguishable in their longterm impact on psychological health. [iv]
Concerns about the use of mental and physical torture are not limited to the military or police. It has been alleged that anywhere there is a vulnerable population there is torture. Amnesty international reports that children are tortured because they are caught up in wars and political conflict; children suspected of criminal activity are most at risk of torture at the hands of the state; children are often detained in conditions that pose a threat to their health and safety, and many children face being beaten or sexually abused by the very adults who are supposed to protect them.
The acceptance of psychological torture is linked to fear of terrorism and crime, yet to allow it in our country or by our personnel means we have no moral basis for objecting when British citizens are psychologically misteatred by others. If we fight terorism with terror we add fuel to the fire that is already there and put ourselves, especially members of the armed forced who may be captured, at greater risk of inhumane treatment.
The Role of Health Professionals and Psychologists
The growing use of psychological techniques has followed research into how to enhance distress, some funded by the military. It has also made the immediate services of psychologists and psychiatrists important to intelligence gathering. Thus, from an early stage at Guantánamo ” Behavioral Science Consultation Teams” (BSCTs), which include psychologists and psychiatrists, have been used.
Both the American Psychiatric Association and Royal College of Psychiatrists recently have reinforced their opposition to torture. The American Psychiatric Association says ” No psychiatrist should participate directly in the interrogation of persons held in custody … Direct participation includes being present in the interrogation room, asking or suggesting questions, or advising authorities on the use of specific techniques of interrogation with particular detainees.” [v]
The RCP has stated its members must not ” Apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect their physical or mental health.” [vi]
The statements to date from the American Psychology Association and British Psychology Society do not go as far as the psychiatric bodies. The APA 2005 “task force” statement on interrogation [vii] is controversial, not least because the majority of its members were from the military, including one reported to have taught interrogation techniques at Guantánamo. [viii] A civilian member of the group drafting the statement resigned in protest and later said, ” Although the work of the task force made a positive contribution, it fell short of the mark in numerous respects. Most notably, it did not take a strong stand affirming the primacy of international human rights standards as the appropriate basis for a code of professional ethics. This failure is tantamount to complicity in the U.S. government’s open defiance and idiosyncratic interpretations of international rights standards.” [ix]
Within the APA there is a significant Military Psychology division. The military are seen to exert further influence through defence funding of a wide range of psychological research. Its critics see the APA’s statement on interrogation as further compromised by the number of task force members linked to interrogation practices in Guantánamo, Abu Ghraib and Afghanistan .
BPS also has members who are either military officers or who work for the Ministry of Defence but the public know little about their current involvement with interrogations. However, psychologists are believed to have helped to develop the techniques used by the British Army in Northern Ireland in the 1960′s including the combination of hooding, prolonged stress positions, ‘white noise’, severely restricted diets and sleep deprivation. [x]
A more modern role for military psychologists is helping to prepare personnel for possible capture. For many years there were fears that that counter-interrogation expertise had informed stressful interrogation techniques and it is now established that Guantánamo interrogators were taught by survival instructors. [xi] [xii]
The BPS statements to date on torture have been found lacking by one of its members, Nimisha Patel, Chief Clinical Psychologist at the Medical Foundation for the Victims of Torture. She wants to see BPS make explicit reference to obligations under international law, the health impact and ineffectiveness of torture as a method of interrogation, and clear mechanisms to support those who may face problems as a result of ethical compliance or wishing to report breaches by others. [xiii]
What Patel and many others are concerned about is the likelihood of conflicting loyalties, for example, between a code of ethics and the expectations of colleagues and superiors not governed by or ignoring ethical considerations. Few psychologists or health professionals would join an organisation in order to assist torture yet, in certain circumstances, people may change their initial pattern of responding to unprincipled behaviours.
UKCP believes that the dangers of this happening are greater in closed groups such as intelligence communities; in units encouraged to see themselves as elite or providing services “vital” to security; in centres of detention, especially those overseas or otherwise remote; when there is generalised fear and suspicion, as when working with those suspected of terrorism; and when there is either inducement from senior personnel to ignore human rights or a lack of meaningful oversight. Given the above, there should be special concerns and measures for health professionals and psychologists working in close proximity to interrogators.
Lifton stated that American health pro fessionals at Abu Ghraib and elsewhere were undoubtedly aware of their ethical responsibility to document injuries and raise questions about them. But the medics were part of environment “… so structured, psychologically and militarily, that ordinary people can readily engage in atrocities.” The command structure permitted, encouraged, and sometimes orchestrated torture to a degree that it became the norm to which all personnel were expected to comply. [xiv]
Given the potential for complicity in torture the UKCP believes that professional bodies in this country should work together to monitor and educate professionals and the public to prevent this form of unethical behaviour. UKCP seeks to be part of a coalition that will help deter torture and make it easier for those aware of mistreatment or professional involvement in it to make known their concerns.
[i] See, for example, Patel, N. (2007) Torture, Psychology and the War on Terror’: A h uman rights framework in R. Roberts (Ed.) Just War: Psychology, terrorism and Iraq . PCCS Books, Ross-On-Wye.
[iii] See, for example, Physicians for Human Rights (2005) Break Them Down: Systematic use of psychological torture by US Forces. Physicians for Human Rights: Cambridge , MA . Available at http://physiciansforhumanrights.org/library/documents/reports/break-them-down-the.pdf
[iv] “Torture vs Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent?”, Metin Basoglu, Maria Livanou, and Cvetana Crnobaric. Arch. Gen. Psychiatry 2007; 64:277-285. Vol. 64 No. 3, March 2007.
[v] American Psychiatric Association (2006) Psychiatric Participation in Interrogation of Detainees Position Statement , May 2006 http://www.psych.org/edu/other_res/lib_archives/archives/200601.pdf
[vi] Royal College of Psychiatrists (2006) Resolution re Psychiatric Participation In Interrogation of Detainees, July 2006. http://www.rcpsych.ac.uk/pressparliament/pressreleases2006/pr825.aspx
Psychological Association Presidential Task Force on Psychological Ethics and National Security. Washington DC : APA. http://www.apa.org/releases/PENSTaskForceReportFinal.pdf
[viii] Levine, A. (2007) Collective Unconscionable: How psychologists, the most liberal of professionals, abetted Bush’s torture policy. Washington Monthly January/February 2007, accessed at http://www.washingtonmonthly.com/features/2007/0701.levine.html
[ix] Michael Wessells (2006) Letter to Monitor on Psychology, Volume 37, No. 5 May 2006, accessed at http://www.apa.org/monitor/may06/letters.html
[xi] Benjamin, M. (2006) Torture Teachers Salon, 29 June 2007, accessed at http://www.salon.com/news/feature/2006/06/29/torture/index_np.html
[xii] Myer, J. (2005) The Experiment The New Yorker 11 July 2005, accessed at http://www.newyorker.com/archive/2005/07/11/050711fa_fact4
[xiii] Nimisha Patel (2007) The BPS Should Do More, Science & Public Affairs, March available at http://www.the-ba.net/the-ba/CurrentIssues/ReportsandPublications/ScienceAndPublicAffairs/SPAMarch07/_PatelMarch07.htm
[xiv] Lifton R.J. (2004) Doctors and torture. New England Journal of Medicine, 351:415-416. Available at http://content.nejm.org/cgi/content/full/351/5/415
This statement has the strength of passion and of specificity. It is clear that the authors care. They have not wrapped their text in such legalese as to render it passionless, as have too many American Psychological Association statements on the issue. The statement also discusses specific actions that should be taken. Further, while not attempting a complete definition of “torture,” it does clearly discuss psychological torture and “torture lite.”
The statement also deals with the broader issue of interrogations and the pressures that exist in intelligence settings to participate in abuse. At the same time, it does not take a clear position, as do the American Psychiatric and Medical Association’s, that psychotherapists, as helping professionals have no role in interrogations. Nor does it deal with the issue of participation in interrogations at sites where human rights are denied. After all, in the American Psychological Association, the debate has not been around whether “torture” is acceptable, but, rather, around what is torture and around the participation of psychologists in Guantanamo and the CIA’s Black Sites that systematically violate human rights and where “enhanced interrogations” ["torture" to any reasonalbe human being not concerned with word parsing to protect abuse] have been practiced.
October 26th, 2007
Valtin, at Invictus, calls attention to a Christian Science Monitor article on the governments outrageous assetions in a brief in the Padilla case. They claim that kidnapping a US citizen and torturing him in a military brig for years violates no constitutional right. If they government is correct, constitutional rights are nonexistent. Unfortunately, with the Roberts court, that may, in fact, be the case:
US defends its harsh treatment of an American citizen
The administration offers its legal rationale for the long detention of Jose Padilla.
By Warren Richey
US officials did not violate any clearly established constitutional rights when they held a US citizen in isolated military detention without charge for nearly four years and subjected him to harsh interrogation techniques.
That’s the legal position staked out by Justice Department lawyers who are urging a federal judge in Charleston, S.C., to dismiss a lawsuit filed on behalf of Jose Padilla against former Defense Secretary Donald Rumsfeld and nine other current or former US officials. Mr. Padilla was held in military custody from 2002 to 2006 as a suspected Al Qaeda operative and enemy combatant.
The 55-page motion, filed this week, offers the first detailed defense of the government’s aggressive treatment of Padilla during his three years and seven months in military custody. Padilla’s suit says he endured isolation, stress positions, extreme cold, sleep deprivation, and reportedly was subjected to five months of severe sensory deprivation, including near total isolation from human contact.
Mental-health experts who have examined Padilla say the experience has left him with severe mental disabilities, including post-traumatic stress disorder.
Government lawyers made no reference to Padilla’s diagnosed psychological problems. They told US District Judge Henry Floyd that such a lawsuit, if allowed to progress, would interfere with military decisionmaking, aid the enemy, and make the US more vulnerable to terrorist attack.
“It would be difficult to devise a more effective fettering of executive branch officials than to allow enemy combatants to trade a battlefield in Afghanistan for a battlefield in the US legal system,” Barbara Bowens, civil chief of the US Attorney’s Office in South Carolina, says in her brief.
After nearly four years in military custody, Padilla was transferred to the criminal-justice system in January 2006. He was convicted in August in a Miami terror-conspiracy trial and is set to be sentenced in December. An appeal is expected.
Although Padilla was placed on trial and convicted in Miami, no court has fully assessed the legality of Padilla’s earlier detention and interrogation in military custody. Government lawyers say such an assessment is unwarranted.
“Padilla’s designation, detention, and interrogation as an enemy combatant did not violate any clearly established constitutional rights,” Ms. Bowens says in her brief.
“It cannot be said that there were any constitutional ‘bright lines’ applicable to Padilla’s case which the [government] could be held liable for transgressing,” Bowens writes.
The issue of “clearly established” rights is important because government officials are protected by immunity from such lawsuits even when rights may have been violated. They lose that immunity, however, if the violated rights are so obvious to a reasonable person that they are considered “clearly established.”
“Officials are not liable for bad guesses in gray areas,” Bowens notes. “They are liable for transgressing bright lines.”
Padilla’s lawyers believe the lines in his case are clear and clearly established. In their 30-page complaint, they charge that Padilla “suffered gross physical and psychological abuse at the hands of federal officials as part of a scheme of abusive interrogation intended to break down [his] humanity and his will to live.”
The complaint says US officials violated Padilla’s constitutionally protected rights to consult a lawyer, to gain access to the courts, to practice his religion and associate with family and friends without government interference, and to be free from coercive interrogation, free from cruel and unusual punishment, and free from illegal and arbitrary detention.
Fundamentally at issue in the Padilla case is whether such constitutional guarantees continue to protect a US citizen seized on US soil and held without charge in a US-based military prison once the citizen is designated an enemy combatant.
Bowens says the issue has already been decided by a federal appeals-court panel in Richmond that upheld Padilla’s military detention in September 2005. As a result, she says, Padilla’s lawyers should be precluded from raising any constitutional claims – even claims related to Padilla’s interrogation and isolation.
Some legal analysts say they are alarmed by the sweep of the government’s position. “The notion that there is absolutely no limit in how the government treats US citizen detainees strikes me as a disturbing proposition,” says Stephen Vladeck, a law professor at American University in Washington, D.C. “Most people would have thought before the Padilla case that the government can’t simply do whatever it wants to a US citizen in military custody.”
Given the government’s reliance on “clearly established” law, the Padilla civil case could present an ironic twist in the long and heated debate over Bush administration tactics in the war on terror. White House and Justice Department officials worked hard in the years since the 9/11 attacks to maximize legal flexibility in dealing with detainees. They sought to clarify the law in a way that would protect interrogators, soldiers, and other US officials from civil suits and war-crimes charges.
Instead of clarification, the efforts triggered debates both within and outside the administration over what the law should be.
Now, legal analysts say, the administration may rely on the lingering uncertainty to help shield US officials from legal liability. “It will make it a lot harder for plaintiffs [like Padilla] to win a lawsuit because there is a much better argument that the relevant laws aren’t clearly established,” Professor Vladeck says.
“Even though Padilla’s rights may have been violated, the real question is whether it was clearly established that what the government was doing to him was illegal,” Vladeck says. “One can’t help but wonder based on the torture debate whether anything was clearly established.”
I’m waiting to hear that the American Psychological Association, which claims to abhor torture, but has never seen it, will intervene in the case with either a brief or a press statement denouncing the alleged torture of Padilla. Ihope I don’t wait in vain.
October 25th, 2007
The Sunday’s New York Times Magazine, there is an excellent article by Tim Golden on Lt. Cmdr Matthew Diaz. Diaz was the military lawyer who smuggled out the names of the Guantanamo detainees in a Valentine’s Day car and was rewarded with a court martial and brig term. Scott Horton at Harpers has a nice summary and discussion of the article.
October 24th, 2007
Is one of the CIA’s on the British-owned island of Diego Garcia?
Claims of Secret CIA Jail for Terror Suspects on British Island to be Investigated
by Ian Cobain and Richard Norton-Taylor
Allegations that the CIA held al-Qaida suspects for interrogation at a secret prison on sovereign British territory are to be investigated by MPs, the Guardian has learned. 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.
Andrew Tyrie, Tory MP for Chichester and a campaigner against the CIA’s use of detention without trial, has also urged the committee to investigate. He said: “Time and time again the UK government has relied on US assurances on this issue, refusing to examine the truth of these allegations for themselves. It is high time our government took its head out of the sand and looked into these allegations.”
A member of the foreign affairs committee said the committee would pursue the allegations as part of its inquiry into Britain’s overseas territories. Although Diego Garcia is part of the British Indian Ocean Territory, it is unclear whether the British government knows whether the CIA has detained prisoners there or not.
UK officials are known to have questioned their American counterparts about the allegation several times over a period of more than three years, most recently last month. Whenever MPs have attempted to press ministers in the Commons, they have met with the same response: that the US authorities “have repeatedly given us assurances” that no terrorism suspects have been held there.
The existence of the CIA’s black site prisons was acknowledged by President George Bush in September last year. He said al-Qaida suspects or members of the Taliban who “withhold information that could save American lives” have been taken “to an environment where they can be held secretly, questioned by experts”.
Mr Bush did not disclose the location of any prison, but suspicion that one may have been located on Diego Garcia, some 1,000 miles off Sri Lanka’s southern coast, has been building for years. The 2,000 islanders were expelled in the early 1970s after the British government struck a secret deal to lease the 37-mile long island to the US for use as an air and naval base. Any evidence uncovered by the foreign affairs committee pointing to the existence of a secret CIA prison on the island would be hugely embarrassing for ministers.
Barry McCaffrey, a retired four-star US general who is professor of international security studies at the West Point military academy, has twice spoken publicly about the use of Diego Garcia to detain suspects. In May 2004 he said: “We’re probably holding around 3,000 people, you know, Bagram air field, Diego Garcia, Guantánamo, 16 camps throughout Iraq.” In December last year he repeated the claim: “They’re behind bars…we’ve got them on Diego Garcia, in Bagram air field, in Guantánamo.”
MPs on the committee may inquire into a Gulfstream executive jet which has been linked by its registration number to several CIA prisoner operations – known as extraordinary renditions – and which flew from Washington to Diego Garcia, via Athens, on September 11 2002, soon after the capture of Ramzi Binalshibh, a suspected planner of the September 11 attacks the previous year.
A prison of some sort is known to exist on Diego Garcia: in 1984, a review by the US government’s general accounting office of construction work on the island reported that a “detention facility” had been completed the previous December. British ministers have also disclosed that a building on the island was redesignated as a prison after the September 11 attacks.
Last June Dick Marty, a Swiss senator who investigated the CIA’s use of European territory and air space during prisoner operations, concluded in a report to the Council of Europe that prisoners had been held on the island.
Mr Marty, who later told the European parliament that he had received help from senior CIA officers, reported: “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.”
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.”.
UPDATE: Scot Horton relates the Diego Garcia revelations to the Mukasey hearings, the rumors of the CIA’s illegal use of psychotropic drugs, and the attempt to “investigate” [intimidate] the CIA’s Inspector General. In it he shows the damage being done to psychology’s reputation by our psychologist torturers:
The word is that the IG has asked highly unwelcome questions about the legality of several aspects of the CIA’s current SERE-based training program, developed for the agency by a couple of ethics-challenged psychologists. Those questions include the fact that the trainees themselves are being asked to submit to waterboarding, sleep deprivation, long-time standing and other techniques included in the parcel. And it seems that the IG’s challenge got backing within the CIA’s legal department, though not by interim general counsel Rizzio. Rizzo’s own nomination was just smacked down by the Senate because he embraced the enhanced interrogation techniques. Another major issue apparently relates to the use of psychotropic drugs in connection with certain techniques. Since the end of World War II at the latest the law on this has been extremely clear: the use of these drugs is a crime. The Agency’s track record of abuse of this law has provided many plot lines for Hollywood movies, and by the eighties it seemed the agency was being slowly weaned of its drug dependency. But now a relapse has set in.
October 19th, 2007
Conor Foley, in the Guardian‘s Comment is Free, thinks its very likely that at least some Bush administration officials will find themselves in the dock for torture in Europe, if not at home:
In the dock
Bad legal advice about torture could one day lead to prosecutions of the Bush administration in Europe.
Last week’s decision by the US supreme court to refuse to hear the case of a German citizen of Lebanese descent who was wrongfully arrested and tortured by CIA operatives, shows the legal gulf opening up between Europe and the United States on the issue of torture. Khalid el-Masri was apparently the victim of mistaken identity and has tried to take a civil action against the US authorities. The supreme court blocked the case without comment, but the US objections are believed to hinge on the need to preserve its “state secrets privilege”.
Last month German prosecutors issued warrants against the 13 CIA agents who abducted Mr el-Masri and Germany’s interior minister, Wolfgang Schäuble visited Washington to discuss the case. The US authorities have flatly refused to cooperate and the German government decided to drop proceedings in order to preserve diplomatic relations. However, thousands of people have suffered similar treatment in custody to Mr el-Masri in recent years and it is almost inevitable that senior members of the Bush administration will someday have to answer for it in a court of law.
The problems of the US authorities on this issue date back to an appalling piece of legal advice by the office of the former US attorney general, Alberto Gonzales, in August 2002. A memorandum issued at the time attempted to redefine torture with reference to agreed international legal standards, which, it argued, allowed interrogators to inflict far greater amounts of pain and cruelty than was previously thought.
The memo defined “torture” as consisting of “physical pain equivalent to in intensity to the pain which accompanied serious physical injury, such as organ failure, impairment of bodily function or even death”. It distinguished this from “cruel, inhuman, or degrading treatment or punishment”, which it defined as involving a lesser inflictions of pain and stated the European court of human rights as part of its authority for this claim. The memo then went on to note that while the UN convention against torture requires states to take criminal proceedings against perpetrators of the first, it merely condemns the second.
This memo formed the basis of the interrogation policy subsequently adopted and which has led to thousands of detainees having a variety of treatments inflicted on them. These are commonly claimed to include: being stripped naked, held in prolonged stress positions, deprived of food and sleep, subject to extremes of heat and cold and disorientating noise, being interrogated for days and nights at a time, and being subject to verbal and physical abuse, a variety of threats and, occasionally, simulated drowning. The former defence secretary, Donald Rumsfeld, is alleged to have personally approved the introduction of these methods. Vice president Dick Cheney has also said that subjecting prisoners to “a dunk in water” – the notorious water-board technique – is a “no-brainer” if it could save lives.
According to the original memo, the infliction of such techniques could constitute “inhuman and degrading treatment” but do not amount to “torture”, a claim which it justifies with reference to one of the European court’s most famous cases.
In Ireland v UK, the court did indeed find that the so-called “five techniques” carried out on a selected group of internees in Northern Ireland amounted to “cruel, inhuman and degrading treatment”, overturning a previous decision of its own commission that they should be classified as torture. The memo describes both the court’s reasoning and the techniques themselves in considerable detail and it is difficult to avoid the conclusion that its author felt that similar practices might suit the purposes of the Bush administration.
However, the memo fails to note that the European court has since effectively overturned this ruling. Three years before it was written, in Selmouni v France the court explicitly ruled such practices to constitute torture and noted that states were required to raise standards when it came to the protection of human rights and fundamental liberties. A variety of other international human rights bodies have similarly condemned the practices as constituting torture.
According to the memo, while the decisions of international legal bodies cannot provide authoritative interpretation of US law, they “nonetheless provide a useful barometer of the international view of what actions amount to torture”. As the memo notes, torture is a crime of universal jurisdiction, which means that its perpetrators can be prosecuted anywhere in the world. This principle was most graphically illustrated when the former dictator Augusto Pinochet was arrested in London on the foot of an extradition warrant from Spain, even though he had granted himself immunity from prosecution in Chile where the crimes occurred.
The Bush administration went to considerable effort, with the passage of the Military Commissions Act of 2006 last October, to grant officials retroactive immunity from prosecution for war crimes. Most of the debate within the US has been about the applicability of the Geneva conventions in the domestic legal sphere. However, the US has also ratified the UN convention against torture, which obliges states to prosecute torturers “where the alleged offender is present in any territory under its jurisdiction”.
There is an obvious contradiction between the common refrain of the Bush administration that: “we don’t do torture” and its regular boasts of the value of information obtained through its “alternative set of procedures” for conducting interrogations. It rests on some bad legal advice, which it is becoming increasingly likely, will eventually land some former members of the administration in the dock of a European court.
October 19th, 2007
Alternet continues its fine coverage of the movement against commercialized water, a.k.a. “bottled water,” that scam whereby an essentially free resource is turned into a status symbol generating tremendous profits for large corporations and waste for our environment:
As a note at the bottom of the restaurant’s wine list explains, “In an effort to preserve global resources, Bella Luna does not serve bottled water. We have fountain seltzer water and filtered still water by request.”
Bella Luna’s CEO, Kathie Mainzer made the decision to can the bottle six months ago after a trip to the Dominican Republic, where residents have to boil their tap water in order to drink it. “I came home realizing what a precious resource water is and how we take it for granted,” she says, noting that tap water in Boston is safe, cheap and doesn’t lead to more trash. “Here we were throwing away this free resource and generating more disposable items — it seemed absurd.”
Between the bottles of Saratoga Spring she served with dinner and Poland Spring that bar-goers would order downstairs, Mainzer figures she is losing around $500 a month from the decision. But “it was worth it to avoid adding more pollution to the landfills,” she says. At the same time, she has also had to educate staff on how to explain the decision to customers, who may never have made the connection. “The first response is, ‘Really?’ Then the second response is, ‘That’s great,’” she says. “People are just kind of shocked, because it’s new.”
New it may be, but the eatery has joined a growing backlash against bottled water by restaurants, city governments, religious organizations and ordinary consumers, who reject it on environmental, economic and even moral grounds. At a time when Al Gore has won the Nobel Peace Prize for his work on global warming, and consumers are lining up to buy hybrid cars and fluorescent light bulbs to reduce their carbon footprint, they see bottled water as a glaring example of needless environmental waste.
Americans drank some 37 billion bottles of water in 2005, despite the inconvenient truth that in most parts of the country, tap water is not only perfectly safe, but also more tightly regulated that its bottled counterpart. At the same time, manufacturing plastic bottles for bottled water creates an astounding amount of pollution — an annual equivalent of 1.5 billion barrels of oil, according to Food & Water Watch. Add to that the carbon emissions from transporting water from as far away as Norway (Voss), Italy (San Pellegrino), or Fiji (Fiji), and the billions of plastic bottles that end up in the waste stream, and drinking bottled water does start to seem a little bit of madness.
Yet even at supposedly environmentally conscious stores like Whole Foods Market, bottled water is the No. 1 selling item. Over the past decade, sales have continued to grow 10 percent a year, a rate that would make most companies blush. It was only a matter of time, perhaps, before the industry became a victim of its own success and people began realizing what comedians from Dennis Miller to Janeane Garofalo have been telling us for years — that “Evian is just naïve spelled backwards.”
Earlier this month, the activist group Corporate Accountability International (CAI) brought that message home to the consumers with its new “Think Outside the Bottle Pledge,” which commits signees to “opt for public water over bottled water” and support “the efforts of local officials who prioritize strong public water systems.” According to the group, CAI has already signed several thousand people on the pledge, including actor Martin Sheen and several mayors around the country.
“By taking this pledge, people are separating the packaging from the product and saying we don’t have to create a waste stream of billions of bottles to have a drink of water,” says Gigi Kellet, campaign director for the organization. “They are basically saying they are going to do what they can to support strong public water systems and let communities around the country who are struggling to regain control of their resources know they are not alone.”
The pledge caps a summer of organizing that has seen the backlash against bottled water go mainstream. Bella Luna isn’t the only restaurant to ban bottled water from its menu. The movement burst into public view this spring when chef Alice Waters, the godmother of “California cuisine,” nixed bottled water from her Berkeley, Calif., restaurant Chez Panisse. Soon after, Food Network favorite Mario Batali followed suit at his empire of restaurants including Manhattan’s swish Del Posto, serving filtered tap water in glasses etched with information on the harmful environmental impact of bottled water
Then cities — who probably have the most to gain from promoting municipal water — got into the act. This June, San Francisco Mayor Gavin Newsom issued an executive order to cancel the city’s purchasing contract for bottled water, mandating instead that city departments rely on tap water that gushes down to the city from its clean reservoirs in Yosemite National Park. The next day, over heavy lobbying from the bottled water industry, Newsom along with progressive Salt Lake City Mayor Ross C. “Rocky” Anderson and Minneapolis Mayor R.T. Rybak pushed through a resolution at the U.S. Conference of Mayors to commission a study looking at the impact of discarded bottled water bottles on city waste streams.
According to the Container Recycling Institute (CRI), 96 percent of bottled water is sold in single-size polyethylene terephthalate (PET) plastic bottles, which, because they are frequently consumed “on the go,” end up in city trash cans rather than recycling bins. The national recycling rate for all PET bottles, including soda bottles, is just 23.1 percent, and bottled water is even lower. CRI estimates some 4 billion PET bottles end up in the waste stream, costing cities some $70 million a year in cleanup and landfill costs.
Bottled water “very clearly reflects the wasteful and reckless consumerism in this country,” said Salt Lake City’s Anderson in a conference call with reporters this month. “You really have to wonder at the utter stupidity and the irresponsibility sometimes of American consumers. These false needs are provided, and too often we just fall in line with what Madison Avenue comes up with to market these unnecessary products.”
While falling short of a binding executive order, Anderson issued a directive to all city departments a year ago mandating that no tax money be spent on providing bottles of water for meetings and events. In coordination with CAI, the city has launched a campaign, called “Knock Out Bottled Water,” with its own pledge for consumers and restaurants. (So far, 15 have signed up, most of them part of the city’s popular upscale Gastronmy Inc. chain, whose flagship Market Street Grill earned “chef of the year” honors from Salt Lake City magazine.)
Other cities have separately pioneered their own efforts. New York, which gets pristine water from the Catskills, has started an advertising campaign to encourage residents to drink “cool, healthy, clean … NYC water.” In Berkeley, the school district last year replaced bottled water machines with large containers of tap. Other California cities, including Santa Barbara, Emeryville, San Leandro and Los Angeles have either cancelled bottled water contracts or instructed city departments not to buy bottled water. And this month, Boston signed on to the CAI pledge.
Nor is it just cities in on the East and West coasts that are taking action — Ann Arbor, Mich., has already cancelled bottled water contracts, and mayors in other cities such as Urbana, Ill., and Wauwatosa, Wis., are considering similar actions. In Chicago, Mayor Richard Daley is considering a proposal to tax bottled water producers who bottle municipal water. And one of the very first cities to promote its tap water is — of all places — Louisville, Ky., which has distributed more than 1.8 million “Pure Tap” water bottles to residents since 1997 and branded a mascot, Tapper, to educate kids about the source of their water.
As the wave against bottled water has grown into a tide, the industry has not taken long to splash back. This August, the International Bottled Water Association published full-page ads in the New York Times and San Francisco Chronicle decrying the “misguided and confusing criticism by activist groups and a handful of mayors who have presented misinformation and subjective criticism as facts.”
Instead of pitting bottled water against tap water, the group says, bottled water should be seen as an alternative to soda and other sugary drinks consumed outside the home. Its ads quote statistics saying 70 percent of beverages are consumed from a can or bottle, “a result of our 24/7 on-the-go society. So as far as we are concerned, the drink in everyone’s purse, backpack, and lunch box should be water.”
In fact IWBA president Joe Doss says a private poll by one bottler found three-quarters of people drink both tap water and bottled water, depending on the circumstances. “We don’t see tap water as our competition,” he says. “Every day on newspapers and TV, you see stories about increasing obesity and diabetes. These actions against bottled water will have no good consequences if they discourage people from drinking a healthy beverage.”
As for recycling, Doss says that bottled water companies have done their part to reduce the amount of PET resin in bottles by 40 percent over the last five years. Despite the number of bottles that end up in landfills, however, he says PET bottles represent only a third of 1 percent (.0033) of all trash. “If you can get your head around that, it’s very clear that these efforts to target bottled water are misguided at best and totally ineffective in dealing with the problem at worst.” Instead, Doss says IWBA has been involved in supporting curbside recycling initiatives to try and increase the number of water bottles that are recycled, adding that two-thirds of bottled water is consumed at home, work or offices, places where curbside recycling is readily available.
Of course, those are all places where tap water is also readily available, contradicting the argument that bottled water is necessary as an alternative beverage “on the go.” When I point out the discrepancy, Doss repeats his mantra of “choice”: “It is a choice, it’s always a choice; they should have that choice. Bottled water consumers are choosing to drink both, and there is nothing wrong with that.”
Perhaps not so coincidentally, that is the same argument that soda companies have used for a decade as their product has come increasingly under attack from health advocates looking to ban soda from schools. After all, many of the same companies at the lead of soda production also produce water. The top producer of bottled water is Nestlé, which owns a quarter of the market with its brands, including Poland Spring, Calistoga, Deer Park, Ice Mountain and Arrowhead. Second and third are PepsiCo and the Coca-Cola Co., which produce Aquafina and Dasani, respectively.
In fact, as soft drinks started to decline in sales for the first time, Coke and Pepsi have increasingly promoted water as a healthy alternative, putting tens of millions of dollars of advertising into rebranding themselves as “hydration” companies and quietly replacing soda logos on vending machines with huge Aquafina and Dasani logos (with bottles of Coke and Pepsi, of course, still available a few buttons down.) Despite advertisements touting the purity of bottled water, however, Aquafina’s former tagline says it all: “So pure we promise nothing.”
While federal law requires that bottled water be held to the same standards as tap water, tap water is actually more tightly regulated by the Environmental Protection Agency, which requires daily testing and mandatory reporting to the public. For bottled water, the Food and Drug Administration requires only weekly testing and voluntary reporting. A 1999 study by the Natural Resources Defense Council found contamination in some bottles, including e.coli and arsenic.
While some companies, such as Nestlé, report testing information on their website, others don’t. “All bottled water companies have telephone numbers you can contact to get the info you want,” says Doss. “If you don’t get the info you want, you can say, ‘I’m not going to drink that brand.’ You don’t have that choice with tap water.”
Others don’t see that way. “There is accountability in the municipal system,” says Wenonah Hauter, director of Food & Water Watch, which produced a report on bottled water this spring called Take Back the Tap. Her organization originally got into the issue of bottled water while battling companies seeking to privatize municipal water systems. “The excuse that elected officials often gave for privatization was that the public had lost confidence in the public water systems,” says Hauter. “We realized that the whole issue of bottled water and the ad campaigns they have done for the past 10 or 15 years has really undermined public water. If we spent just a fraction of what people spend for what is an inferior or at least not a better product, we could have clean water for everyone.”
In other words, bottled water has created a chicken-and-egg syndrome whereby advertisements touting the purity of bottled water undermine public support for maintenance of public systems, creating more reliance on bottled water as a source of drinking water. “It’s kind of like you keep building more and more highways to accommodate sprawl, and it’s this vicious cycle,” says Anderson. “We need to stop accommodating these problems and giving up by drinking bottled water. We need to start demanding city officials address these issues.”
Despite the problems activists see with bottled water, tap water is hardly a panacea. The EPA estimates that municipalities face a $22 billion shortfall in spending on maintenance of their water systems, and some of the same environmental groups that oppose bottled water have also warned against tap water contamination, especially in rural areas. In other areas, water that is perfectly safe may still have an inherently unpleasant taste or contain added chemicals such as chlorine. It’s no accident that cities pushing tap water are those with the best water — Boston, San Francisco and New York, for example — are among the five cities in the country with water so pure the EPA doesn’t require filtration. And even in those cities, rusting lead pipes in certain buildings can cause contamination that isn’t monitored by the EPA.
The safest and cheapest solution, says Hauter, is to invest in a home filtration system and fill your own water bottles from the tap. The most expensive systems cost only about $400 and use reverse osmosis, the same process used by Coke and Pepsi to filter their bottled water. The vast majority of consumers, however, don’t need anything that extreme, says Hauter. For chemicals like chlorine, an “adsorptive filter” such as the popular Britta filters, can do the trick. Slightly fancier filters with “ion exchange resin” can take care of lead. And on-the-faucet “particulate filters” can remove particles and bacteria. Because the EPA requires municipalities to submit yearly tests on water quality, it’s relatively easy to find out what contaminants, if any, are in your water by going to the agency’s website. Or to be doubly sure, some municipal health departments will test your water for free. From there, the Take Back the Tap report lists several nonprofit organizations that can recommend the best filter on the basis of the findings.
After all, filtered tap water is good enough for many bottled water companies themselves. This summer, PepsiCo made the embarrassing public admission that its Aquafina brand water is actually nothing more than filtered water from municipal sources, a fact that the company will now note on its bottles. In fact, some 40 percent of bottled water, including Coke’s Dasani brand, is water that it gets from the tap for free, puts through filtration processes, and then sells back to the public with a markup of up to 1,000 times. A law passed by the state legislature in California this year would have required all bottled water companies to print their source, as well as water quality information, on the label. Though the bill was vetoed by Gov. Arnold Schwarchenegger this month, advocates see momentum on their side. “When we first introduced this bill in 2003, it was an uphill battle, and everyone said it was ‘a solution in search of a problem,’” says Jennifer Clary of Clean Water Action. “No one was saying that this time.”
In terms of environmental impact, however, that may be better than the water that Nestlé gets from springs and underwater aquifers around the country. Unlike with surface water, most states have no laws against takings of groundwater that lies underneath a landowner’s property, leading to a situation that Texans call the “law of the biggest pump” — that is, whoever sucks hardest can literally take the water from beneath his neighbor’s property.
While industry advocates rightly point out that bottled water amounts to a very small percent of total groundwater use, rural communities around the country have fought specific bottled water plants that take millions of gallons of water out of their watersheds at no cost, and often without so much as a permit or study on environmental consequences.
In addition to the backlash in restaurants and cities, grassroots efforts around the country have taken the fight directly to the source, leading to bills in more than ten states to regulate groundwater takings — including in Florida, Georgia, Maine, Michigan, Mississippi, New Hampshire, Ohio, Oklahoma, Pennsylvania, Texas, Vermont and West Virginia. Some of the bills have even proposed an extraction tax of several cents a gallon that would offset costs to the environment. While most of these bills have been defeated after heavy lobbying from industry, both Michigan and Vermont have passed legislation requiring permits for taking water over a certain amount of water (250,000 gallons a day and 50,000 gallons a day, respectively).
The hardest battle has been fought in Maine, where Nestlé’s Poland Spring brand extracts some 180 million gallons a year from land in three communities — Poland, Hollis, and Fryeburg. Residents have complained about the hundreds of trucks that rumble through their rural communities, as well as anecdotal reports of dropping water levels in area wells, lakes, and rivers. In these days of massive droughts across the country, there’s no telling how much of that, if any, is due to the bottling plants. But that’s just the point, says Jim Wilfong, director of grassroots group H2OforME. “It’s impossible to tell what’s going on beneath the ground,” he says. “They will always tell you they are monitoring water levels, but there is no independent confirmation.”
Last year, Wilfong’s group circulated petitions for a state referendum that would create a permitting process for water extraction that would include environmental review and ongoing monitoring. In addition, it would require a 20-cent-per-gallon extraction tax that would be contributed to a trust to compensate taxpayers for water takings. “That water belongs to all people of Maine, and the reason it’s clean is we have invested in public sewer systems and cleaned up oil and gasoline spills,” says Wilfong, a former state legislator and assistant trade secretary under Clinton. “Then a company moves in from Switzerland and takes some advantage of it. As a principle that is not right.”
The referendum campaign was bitterly fought, with Nestlé reportedly contributing $200,000 to a political action committee that waged an aggressive media campaign, stirring up anti-tax sentiment and warning about lost jobs in rural areas. In the end, the referendum failed to make the ballot by just a few hundred signatures. When Wilfong vowed to bring it up again this year, however, Nestlé offered to sit down and hammer out a compromise. While the tax idea was dropped, the bill introduced this summer establishes much of what the referendum would have done, including a permitting process with environmental impact study and subsequent groundwater monitoring paid for by the companies, as well as language acknowledging for the first time that groundwater is a public resource that companies did not have unlimited access to.
“It’s not the end-all, but, boy, it moved us along way up the path from where we were,” says Wilfong. As the world faces a growing global water shortage in coming years and global warming continues to stoke fears of increasing incident of drought, it’s vitally important that laws establish who owns the right to groundwater sources, he says. “That is the big issue, not just in Maine but around the country and around the world. The real questions are, who is going to own the water and who is going to control it, and isn’t it insane policy to let people control something so important?”
Michael Blanding is a freelance writer living in Boston. Read more of his writing at MichaelBlanding.com.
October 19th, 2007
Thanks to Brad Olson:
Opening quote in Kurlansky’s Nonviolence:
“To kill one man is to be guilty of a capital crime, to kill ten
men is to increase the guilt ten-fold, to kill a hundred men is
to increase it a hundred-fold. This the rulers of the earth all
recognize and yet when it comes to the greatest crime—waging
war on another state—they praise it!
It is clear they do not know it is wrong, for they record
such deeds to be handed down to posterity; if they knew they
were wrong, why should they wish to record them and have
them handed down to posterity?
If a man on seeing a little black were to say it is black, but
on seeing a lot of black were to say it were white, it would be
clear that such a man could not distinguish between black and white.
Or if he were to taste a few bitter things were to pronounce
them sweet, clearly he would be incapable of distinguishing
between sweetness and bitterness. So those who recognize a
small crime as such, but do not recognize the wickedness of the
greatest crime of all—the waging of war on another state–but
actually praise it—cannot distinguish between right and wrong.
So as to right or wrong, the rulers of the world are in confusion.”
–Mozi, China, circa 470-391 B.C.
October 18th, 2007
Yesterday I, and a lot of others, wondered if AG nominee was really against torture. Today we get a clear answer: No. When asked if waterboarding was torture, he replied that he didn’t know. As TPM reports:
But what exactly does that mean? Sen. Sheldon Whitehouse (D-RI) asked Mukasey if he thought waterboarding was Constitutional. “If waterboarding is torture… torture is not Constitutional,” he replied.
Whitehouse wasn’t satisfied. “That is a massive hedge…. It either is or it isn’t.” Doesn’t Mukasey have an opinion on whether waterboarding is torture? He went on to describe the technique, which involves using a wet rag to make the detainee feel like he’s drowning. Mukasey replied with the same answer: “If it amounts to torture, then it is not Constitutional.”
I’m very disappointed,” Whitehouse said, adding that Mukasey’s reply had been “purely semantic.”
“Sorry,” replied Mukasey.
If waterboarding isn’t well beyond the pale, then all the rest of the CIA’s “enhanced interrogation techniques” will be judged to be not torture, and, thus legal.
From a legal angle, the talk of “torture” is a softball, allowing these guys to get off easy. The legal threshold for “torture” is fairly high. But many techniques about which controversy exists as to whether they are torture clearly fall within the legally proscribed category of “cruel, inhuman, or degrading treatment”, banned by UN Convention, or those “outrages upon personal dignity” banned by the Geneva Conventions Common Article Three.
A vote for this guy will be, like a vote for Gonzales, a vote for someone dedicated to using word parsing to protect Bush’s regime of abuse. Shame on Congress for even considering it. It’s not surprising Congress’ approval is at 11%.
October 18th, 2007
The New York Times editorial this morning told Senators that:
Mr. Mukasey should be asked what he thinks about holding detainees indefinitely in Guantánamo Bay, Cuba, and denying them habeas corpus rights. He should be made to explain which interrogation techniques he considers to be torture.
Well, they sort of did, and sort of got sort of good answers. Like everyone else, Mukasey is against torture. Unlike President Bush or Vice President Cheney or former AG Gonzales, he claims to really be against torture, the real kind, the kind used by U.S. torturers on real people in real torture centers. Or at least that’s how many interpreted his testimony today. But, like President Bush today, he refused to say what actually constitutes torture [from TPM Muckraker]:
That was, um, unexpected. Not only did Michael Mukasey repudiate the so-called 2002 “torture memo” signed by Office of Legal Counsel chief Jay Bybee — which appears to have survived in spirit, if not in letter — but he compared U.S. torture to the Holocaust.
Most significantly, Mukasey said that he is unaware of any inherent commander-in-chief authority to override legal restrictions on torture — a huge repudiation of Dick Cheney, David Addington and John Yoo’s perspective on broad constitutional powers possessed by the president in wartime — or to immunize practitioners of torture from prosecution. That answer is sure to create anxiety inside the CIA, where many interrogators fear that they will be brought up on charges for carrying out interrogation methods earlier approved by the administration.
The Bybee memo is “worse than a sin, it’s a mistake,” Mukasey said. He referenced the photographs taken by U.S. troops who liberated the Nazi concentration camps in 1945 to document the “barbarism” the U.S. opposed. “They didn’t do that so we could duplicate what we oppose.” Beyond legal restrictions barring torture clearly, torture is “antithetical to what this country stands for.”
He wouldn’t comment on the recent Steve Bradbury memo reported on by The New York Times authorizing some torture methods in 2005, since he hasn’t read it. But he told the panel that he would review all legal memoranda on interrogations and other national security programs to ensure their soundness.
So, is he against torture? Here’s video. You decide, if you can:
UPDATE: Valtin has sent this Media Matters alert that reminds us that Mukasey seems to believe that Americans have virtually no rights the President has to respect:
As Media Matters for America has noted, Padilla was arrested in May 2002 on a material witness warrant; the administration claimed he had been plotting to set off a “dirty bomb.” Bush designated Padilla an “enemy combatant” in June 2002, then directed the Defense Department to hold him without charges. Padilla’s lawyer filed a habeas corpus petition, which was argued before Mukasey, then the chief judge for the Southern District of New York.
On December 4, 2002, Mukasey ruled that “the President is authorized under the Constitution and by law to direct the military to detain enemy combatants in the circumstances present here, such that Padilla’s detention is not per se unlawful.” Instead, Mukasey ruled only that Padilla could “submit facts and argument” to challenge whether there was “some evidence” supporting President Bush’s finding that he was an “enemy combatant.”
he Second Circuit overturned Mukasey’s decision on December 18, 2003, holding that the Non Detention Act (18 U.S.C. 4001(a)) prohibited Padilla’s detention and that the president had not shown that “Padilla’s detention can nonetheless be grounded in the President’s inherent constitutional powers.” (As Media Matters has noted, the Supreme Court later dismissed the case on technical grounds.) In November 2006, shortly before the Supreme Court was due to decide whether to take Padilla’s re-filed case, the government indicted him on federal terrorism-related criminal charges, and transferred him out of military custody. In August 2007, as Media Matters has noted, Padilla was found guilty of those charges after a federal criminal trial.
1 comment October 17th, 2007
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