Brian Tamanaha at Blakinization dissects the letters from the Justice Department to Senator Wyden that were reported in the New York Times last Saturday and that I wrote about here, and demonstrates the completely faulty and dishonest nature of the reasoning involved. According to Tamanaha , the trick used by DoJ is to find an obscure court decision and use a distorted representation of what it says to make a claim completely incompatible with that source. Fortunately, Tamanaha went and read the obscure decision.
DoJ attempted to demonstrate in their letter that whether interrogation behavior violates the Geneva Conventions ban on “outrage upon personal dignity” depends partly upon why the interrogator is engaging in the behavior. Thus, actions intended to prevent terrorism are subject to a higher threshold before becoming violations than are those for lesser reasons.
Accordingly, it might not be an “outrage upon the personal dignity” of a prisoner—for example, subjected to extreme cold, extreme periods of standing, or water boarding—when we have an urgent need for the information, while those same actions might well be a violation if we don’t have an urgent need for the information.
The problem is, as Tamanaha demonstrates, the decision does not even remotely make the argument attributed to it. Here is the key section:
Benczkowski is right that a judgment about the “degrading” nature of the treatment must take into consideration “all the circumstances of the case.” This is the key point in his argument. He asserts that the “reasonable observer…would take into account the circumstances surrounding the conduct, including what justifications might exist.” That final clause–what justifications might exist–is what makes the (claimed) urgent need for the information a relevant factor in evaluating the conduct.
Benczkowski cites Section 53 of the Court’s opinion for this proposition. Here is the entire paragraph 53, so judge for yourself:
“It is also instructive to recount the general definition of the term ‘inhuman treatment’ propounded by the ECHR, which to date is the only human rights monitoring body that defined the term: “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (ECHR). The assessment of this minimum is, in the nature of things, relative: it depends upon all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age, and state of the heath of the victim, etc. The test offered by this definition is the level of suffering endured by the victim.”
The court makes it absolutely clear that the phrase “all the circumstances” relates entirely to (and is bounded by) the “level of suffering endured by the victim.”
For Benczkowski to claim that this language in any way includes consideration of “what justifications might exist” for the ill-treatment is an outrageous distortion.
Tamanaha concludes:
It is disgraceful that Justice Department lawyers would supply such deceptive legal analysis to a Senator.
The bottom line: whether an act is “torture” or an “outrage on personal dignity” has nothing to do with (is not in the least diminished by) how urgently we feel we need the information.
We non-lawyers are left to wonder if the legal profession has any sanctions for such egregious malpractice in a matter of such great importance.
[UPDATED with link to article] An article in the Canadian Press raises serious new questions about the dangers posed to research participants by our corporate-dominated drug development system. Patients were enrolled in clinical trials of a type of blood replacement product despite previous research indicating that these products posed serious risks. The Canadian Press reports that new article in the Journal of the American Medical Association [Available here. Also see accompanying editorial.] pooled data from 13 published studies and three unpublished ones. Their review “showed people who got blood substitutes were 30 per cent more likely to die than those who did not.” These researchers were unable to obtain data from other unpublished studies conducted by companies.
There appear to be several major ethics issue here.
Participants in these studies, who supposedly give informed consent, were not told that prior research suggested these products were harmful. Nor, apparently, were the ethics committees [IRBs] that approved these studies and the informed consent procedures told about the dangers.
The results of several clinical trials were never published, presumably because they produced results indicating the products were harmful. Thus, important information was withheld from the public, putting patients recruited for additional clinical trials at risk.
Lead author Dean Fergusson, a clinical trials expert, said the withholding of the negative results meant ethics boards and trial participants could not accurately weigh the risks and benefits of the research.
“How can patients or their decision makers make truly involved consent without all this information? I think that’s a huge message,” said Fergusson….
The lack of disclosure suggests company stock prices were placed at a higher priority than the safety of people being asked to go into clinical trials, experts suggest.
An additional concern is whether ir is ethical to recruit people for clinical trials, placing the participants at potential risk — which is always the case in drug trials — and then not publish the results. A critical consideration in obtaining approval for research from IRBs is supposed to be a balancing of risks and benefits. Often, the benefits are not to individuals, but to society. If the results are not published, these benefits are not realized. So people are put at risk for no benefit, which is supposedly unethical. It would seem that a commitment to publish the results should be required of any study where there is a serious risk to participants. Otherwise these studies should not be allowed. Note that this argument is different than the argument, with which I also agree, that these studies should be published for the good of the public and that corporate profit should not be allowed to trump public good.
Finally, there is a question of whether these trials should have been undertaken in the first place, given the bad track record of this type of blood replacement products in prior research. The JAMA authors apparently believe the answer is “no”:
The authors were critical of the FDA for not requiring the companies to publish their findings, and for allowing additional trials to be conducted after the risk should have been apparent.
“At some point, somebody should have realized that we’ve tried it in trauma patients, we’ve tried it in surgical patients, we’ve tried it in stroke patients, we’ve tried many different formulations and we keep finding the same result,” said Dr. Charles Natanson, lead author of the meta-analysis, a technique in which data from a number of trials are combined and re-analyzed.
“At some point, and we sort of argue in the paper that may have been the year 2000 . . . it was time to put a halt” to additional trials, Natanson said.
This information raises profound questions about our entire drug development system. The corporate dominance of drug development creates inherent conflicts of interest that put both clinical study participants and the public at risk. Either we need to find ways of overcoming those conflicts of interest or we need to develop a new system for drug development. How many scandals will it take till the health professions, policy-makers, and the public are fed up?
I will be interviewed on KPFK, Pacifica Radio for fouthern California, tonight at around 5:45 Pacific time, 8:45 Eastern time. the topic will be my recent article The Involuntary Drugging of US Detainees. Tune in at Los Angeles, 90.7F and Santa Barbara 98.7 FM. or listen online at www.kpfk.org and click “listen live.”
From a Wikileaks investigative editor come this plea for independent analysis and reporting of the treasures contained in this archive of leaked material. He laments that this material is almost never reported except when Wikileaks staff lobby for its use by sending press releases and/or analyses to journalists and bloggers.
I have been a happy recipient of these lobbying efforts, resulting in a few articles using Wikileaks materials. I learned, though, that it these materials are difficult to use when I do not have background knowledge to bring to bear. When I do, I can add to the understanding of the documents by extracting nuggets that others fail to notice. Thus, I discovered the mandatory four-week isolation period in the Camp Delta Standard Operating Procedures, obtained from Wikileaks. This discovery has had major impacts upon the struggle against psychologist collaboration with US torture. Thus, this discovery helped push the American Psychological Association to take a stronger stand against isolation as an interrogation technique than they had previously.
But I also have trouble interpreting some of the documents there in the absence of extensive background knowledge. In one case, investigation resulted in questions regarding the authenticity of a document, leading me to decide not to post any comments. I still reconsider my decision on a regular basis. In other cases, I simply don’t know enough to figure out what is truly new in a document. In a couple of cases I have directly reproduced the Wikileaks press release, having no need to pretend that the intellectual work was originally mine.
So I agree with the commentator that Wikileaks is an incredible treasure that should be mined more frequently by bloggers, scholars, and independent journalists. But I also think that caution is needed lest we pollute discourse with even more nonsense than exists already.
So, at the risk of being accused of again reproducing a press release, here is The Plea:
The Hidden Curse of Thomas Paine
In 1789 Thomas Paine, American pamphleteer, philosopher and revolutionary, compared the sun to the truth: “[S]uch is the irresistible nature of truth,” Paine declared, “that all it asks, and all it wants, is the liberty of appearing.”
Thomas Paine, author of ‘Common Sense’ and ‘The Rights of Man’ was wrong. Paine gave away his copyright to ‘Common Sense’–allowing printers to pocket the authors fee. Printers, happy with this state of affairs, preferenced its production over other popular, but less profitable works. Thomas Paine had discovered the essential economic underpinning of the modern press release. Paine’s truth appeared not only because of its coherence but because Paine subsidised its production above competing ideas.
The modern press release may have been seen as a blessing by the fourth estate, for it made certain ideas more profitable without making other types less. Yet once electronic cut and paste came into play, the press release and similar content subsidies proliferated.
When the system of ideas regained its economic equilibrium, unsubsidized words became unprofitable and were eliminated. The consequence has been a great shift from words pulled out of writers by reader demand, to words pushed out of writers by special interest subsidies.
Competition to control perception has resulted in forums of influence, not limited to the world great newspapers, behaving as fresh faced coquettes with too many suiters. These coquettes long ago stopped cooking their own food and now expect everything to be lovingly presented on a silver platter. There are few exceptions and the phenomenon is mostly invisible to outsiders.
Print media, including internet media, should not be looked at as a content production industry, but rather, as a lobby selection industry, which balances production subsidies with reader interest.
In this manner it is analogous to the legislative economy which balanaces subsidies from political lobbies with electoral credulity.
In the last two weeks, the English Wikileaks has obtained and released over 50 individual or collected, original, unreported, confidential, classified or censored documents, books, photos or films.
But if you did it was because Wikileaks lobbied for their uptake and like everyone else had its writers bribe everyone with subsidized copy. Take a look at the material, at least one part in 4 is worthy of reportage somewhere and ask yourself why none has been reported without our intervention–not even to the most obscure “activist”
blog.
In the last six months Wikileaks has exposed a lot of important stories, which have produced results from swinging the Dec 2007 Kenyan election to press conferences by the Iranian leadership, but every re-reported revelation has been the result of our staff lobbying other venues and providing content subsidies in excess of the source material.
For example, there has been no reportage about our release of this approachable, beautiful, and region defining leaked intelligence book on North Korea:
Or this 2007 classified UK/US spy plane compendium and tasking guide, with plenty of approachable pictures and released in violation of the Official Secrets Act:
Or this detailed classified manual on JDAM, the most strategically significant U.S. military development in the past 15 years. A single B2 stealth bomber is capable of releasing 80 pre-targeted JDAM fitted bombs and leveling all the critical infrastructure of a medium sized city in one overflight. Most bombings in Iraq are now JDAM.
Wikileaks has not yet pushed this material because it has limited resources. Last week we focused, successfully, on reforming the prison system in western Iraq.
Any journalist, any blogger, any academic, and indeed any human being who could set aside a cumulative half a day to read and make a few phone calls could say something worthwhile, original and interesting using these documents. Professional journalists won’t without intervention because it doesn’t do anyone a favor that can be called in later and few can break even without plagiarism.
Internet media certainly won’t–with few exceptions, it has relegated itself to revealing the mood of the amateur commentariat. Its primary motivation is to demonstrate its authors in-group loyalties on the issue de-jour; consequently it slavishly copies from the very professional press it maligns, rarely adding more than is necessary to advertise peer value conformity.
What does it mean when only those facts about the world with economic powers behind them can be heard, when the truth lays naked before the world and no-one will be the first to speak without payment or subsidy? Wikileaks’ unreported material is only the most visible wave on a black ocean of truth in draws of the fourth estate, waiting for a lobby to subsidize its revelation into a profitable endevour.
The sun of truth is the only guiding beacon civilization has at its disposal. If we are to flourish in reality we must ultimately use it to chart our course. To do otherwise is to drift aimlessly in the dark, decoupled the real world and hearkening to every imagined wave.
But I leave you with a quote from Paine:
“We have it in our power to begin the world over again.”
Last week the Washington Post reported that Guantánamo and CIA detainees alleged that they were given strange psychoactive drugs by force. Jeff Stein of CQ had reported a similar things a few weeks ago. I wrote about this in my piece Involuntary Drugging of US Detainees. In response to the Post article, Almerindo Ojeda wrote a letter to the Post detailing additional evidence that the provision of health services and interrogations at Guantánamo have been intimately linked, with health providers serving the abusive interrogation regime.
Almerindo is the Director of the Center for the Study of Human Rights in the Americas at the University of California at Davis, where they have a wonderful archive, the Guantánamo Testimonials Project with testimony from many sources on the conditions at the prison. The Project — by typing out many handwritten documents, transforming them into searchable text ,and carefully organizing them– is one of the premier sources for such materials as detaneee or FBI accounts of abuses there. My colleagues and I use it all the time.
In any case, the Post did not print Almerindo’s letter. He has thus revised it slightly and given me permission to post it here:
A recent article in the Washington Post (Detainees Allege Being Drugged, Questioned, 04/22/08), quotes Pentagon spokesman Cmdr. J.D. Gordon as saying that interrogations at Guantanamo do not affect or influence medical treatment of the detainees held there. Unfortunately, the evidence suggests otherwise.
Attached to a recent motion on behalf of Guantanamo prisoner Salim Ahmed Hamdan are medical records stating that, on 8/28/02, an ointment was applied to Mr. Hamdan’s lower back and then covered with moleskin–a treatment which the attending medic described as a “special request for medical attention per FBI“. In addition, a medical record for the same detainee dated 2/19/04 carries the annotation “no rec time per Intel“–or “no recreation time per Intelligence” (I understand that exercise is an important component treatment of sciatica, which Mr. Hamdan suffered from then).
Moreover, one of the “counterresistance techniques” approved on December 2, 2002 by then Secretary Rumsfeld against Guantanamo detainees was the use of isolation facilities for up to thirty days. Here, and for selected detainees, “the OIC [or Officer in Charge], Interrogation Section, will approve all contacts with the detainee, to include medical visits of a non-emergent nature.” Although blanket permission to use this and other techniques was rescinded by then Secretary Rumsfeld a month later, their use was still allowed on a case-by-case basis and with approval of the Secretary of Defense (see memos 16-23 in The Torture Papers, by Greenberg and Dratel).
Detainees who are on self-harm precautions [i.e. those at high risk for suicide or other self-injury] that are scheduled for interrogation will have their clinical status and risk assessment verified by the licensed Behavioral Health staff prior to leaving the block. Detainees on self-harm precautions are generally not clinically stable enough to leave the block.
So the needs of interrogation may trump the reasons for placing a GTMO prisoner in a mental health ward. And this as a matter of standard operating procedure.
Almerindo Ojeda, Director
Center for the Study of Human Rights in the Americas
University of California at Davis http://humanrights.ucdavis.edu
The Sunday New York Times brings new revelations of the Bush administration’s ever-evolving legal rationale for torture. Like the hydra, lopping off one legal argument only leads to another. The only thing that remains constant is that the administration can do whatever it wants to those in CIA custody.
Today’s revelation is of a set of letters between Senator Wyden and the Department of “Justice” on the legal basis for the CIA’s “enhanced interrogation,” aka torture, program. The letters seek to clarify the reasoning and impact of President Bush’s executive order last summer that reauthorized CIA torture.
Sandy Levinson at Balkinization explains why the reasoning in the letters will justify virtually any torturous action. Levinson starts by quoting from the Times article:
In one letter written Sept. 27, 2007, Mr. Benczkowski [a deputy assistant Attorney General] argued that “to rise to the level of an outrage” and thus be prohibited under the Geneva Conventions, conduct “must be so deplorable that the reasonable observer would recognize it as something that should be universally condemned.”
There is, of course, a certain logical paradox here: The very fact that the some US interrogator would suggest that some particular conduct is “reasonable” in some situation would, by definition, mean that there is not “universal” condemnnation of the practice. This is especially true if one accepts the DOJ argument that “The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act.” Once one allows what might be termed “purity of utilitarian motive” to dominate the analysis, the game is over, for there will always be those who will argue that it is worth doing practically anything to forestall any “terrorist attack.”
A reading of the letters shows that they admit that “torture” is always banned, but that they seek to redefine the constraints of th Geneva Conventions Common Article 3, so that the banned “outrages upon personal dignity” depend upon a “shocks the conscience” definition of prohibited conduct. This criterion is combined with the question of whether activities are “for the purpose of humiliation and abuse” [emphasis added]. Thus, the sentence reads:
Similarly, the fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation and abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act.
As David Luban explained here, the “shocks the concsience” is extremely problematic and can be bent to justify almost anything behavior. See also Luban’s Were You Really Surprised? where he explains how:
the Justice Department already told us that no interrogation tactic can possibly be cruel, inhuman, and degrading. In some sense, the only surprise is that Congress now acts surprised. Why the outrage now? DoJ told them its position more than two years ago, in a letter to three Democratic Senators.
This situational argument does not apply to the definition of “torture,” the letter states. Hence the importance of restricting the definition of “torture”, such as the intensive efforts to avoid admitting that waterboarding is “torture.” We should therefore push to define activities as “torture” wherever reasonable and not allow administration defenders to restrict it as they have. In this light, see the Physicians for Human Rights/Human Rights Watch Leave No Marks.
One of the most ridiculous and yet terrifying statements yet during this campaign came this week from Hillary Clinton, who has given up her race for the President and has announced a campaign for Obliterator-in-Chief. She told ABC News that, in response to being asked her response if Iran attacked Israel with nuclear weapons.
“I want the Iranians to know that if I’m the president, we will attack Iran…. In the next 10 years, during which they might foolishly consider launching an attack on Israel, we would be able to totally obliterate them.”
[See complete editorial below.]
Thus, Clinton has announced her willingness, if elected, to incinerate 60 million innocents. Such a staetment makes her defeat a necessity for anyone concerned with human decency.
The Boston Globe has responded appropriately in an editorial to that campaign. To cut to the chase, the Globe states, echoing my horrified reaction:
A presidential candidate who lightly commits to obliterating Iran – and, presumably, all the children, parents, and grandparents in Iran – should not be answering the White House phone at any time of day or night.
This is the statement of someone running for constitutional dictatorship, not for a “republican form of government” presidency who might have said, for example, “as President, I will certainly urge the Congress to declare war on Iran should Iran attack Israel”–though one might wonder exactly why, since the brutal truth is that an attack on Israel, however egregious, would not constitute a serious security threat to the United States (which is why Israel very wisely has constructed its own nuclear deterrent instead of relying on the US and the vagaries of American domestic politics)–”though I recognize that that decision is ultimately for Congress to make.”
In the second post Levinson relates our insistence that candidates renounce torture with our ability to accept their willingness to support obliterating millions:
There is a widespread consensus, shared, at least rhetorically, by the Bush Administration itself, that “torture” is forbidden and indefensible. That is precisely why so much of the debate concerns what, precisely, counts as torture. (For the record, let me state that I regard waterboarding, as well as extended sleep deprivation and much else, as torture.) But, of course, there is also the additional debate, sparked by the Yoo memorandum, as to whether the President, under extreme conditions, has the authority to order torture.
But why isn’t there more debate, not only among academics but among the general public, about a) the morality of any military strategy that depends on “obliterating” millions of innocent people simply because they have the bad luck to be living in a country run by terrible leaders and b) the propriety of a view of presidential power that makes it possible for an ostensibly serious candidate for our nation’s highest office so casually to threaten such obliteration should another country engage in behavior that, though no immediate threat to American security, we deem sufficiently awful? As awful as torture is, it really isn’t the most awful thing that regularly occurs in the world, starting with “collateral damage” to innocent civilians as the result of “justified” military attacks, and going onward to the “destruction” that is at the basis of nuclear deterrence strategy (under the rubric “Mutually Assured Destruction”).
Here is the complete Globe editorial:
Hillary Strangelove
AMERICANS have learned to take with a grain of salt much of the rhetoric in a campaign like the current Democratic donnybrook between Hillary Clinton and Barack Obama. Still, there are some red lines that should never be crossed. Clinton did so Tuesday morning, the day of the Pennsylvania primary, when she told ABC’s “Good Morning America” that, if she were president, she would “totally obliterate” Iran if Iran attacked Israel.
This foolish and dangerous threat was muted in domestic media coverage. But it reverberated in headlines around the world.
Responding with understatement to a question in the British House of Lords, the foreign minister responsible for Asia, Lord Mark Malloch-Brown, said of Clinton’s implication of a mushroom cloud over Iran: “While it is reasonable to warn Iran of the consequences of it continuing to develop nuclear weapons and what those real consequences bring to its security, it is probably not prudent in today’s world to threaten to obliterate any other country and in many cases civilians resident in such a country.”
A less restrained reaction came from an editorial in the Saudi-based paper Arab News. Being neighbors of Iran, the Saudis and the other Gulf Arabs have the most to fear from Iran’s nuclear program and its drive to become the dominant power in the Gulf.
But precisely because they are most at risk from Iran’s regional ambitions, the Saudis want a carefully considered American approach to Iran, one that balances firmness and diplomatic engagement.
The Saudi paper called Clinton’s nuclear threat “the foreign politics of the madhouse,” saying, “it demonstrates the same doltish ignorance that has distinguished Bush’s foreign relations.”
The Saudis are not always sound advisers on American foreign policy. But they understand that Rambo rhetoric like Clinton’s only plays into the hands of Iranian hard-liners who want to plow ahead with efforts to attain a nuclear weapons capability. They argue that Iran must have that capability in order to deter the United States from doing what Clinton threatened to do.
While Clinton has hammered Obama for supporting military strikes in Pakistan, her comments on Iran are much more far-reaching. She seems not to realize that she undermined Iranian reformists and pragmatists. The Iranian people have been more favorable to America than any other in the Gulf region or the Middle East.
A presidential candidate who lightly commits to obliterating Iran – and, presumably, all the children, parents, and grandparents in Iran – should not be answering the White House phone at any time of day or night.
As if in response to my posting earlier today on the horrors of Guantanamo driving detainees insane, David Luban at Balkinization reminds us that our concern for the horrors of a Guantanamo driving many of its inmates mad shouldn’t dilute from our outrage at a domestic criminal justice system that does the same to hundreds of thousands.
My colleague James Forman has several times remarked that virtually everything wrong with Guantánamo is wrong on a far greater scale in the domestic criminal justice system. That doesn’t mean that outrage about Guantánamo should be any less – but it certainly means that we ought to be equally outraged about a Madness Archipelago that drives hundreds of thousands of inmates insane.
In January David and I were at a workshop at Harvard Law School where I made a similar pint. I’m glad he’s reminding me. As I’ve focussed upon detainee torture and abuse over the last few years, I’ve often felt guilty that I had insufficient energy to take on the horrors of our criminal justice system with the same passion. Or is it that there isn’t as clear a focus as psychologists aiding and abetting torture? I’m not sure.