Psyche, Science, and Society

Zizek on the 1960’s as the revival of capitalism

Psychoanalyst and social critic  Slavoj Zizek discusses the recuperation of the 1960’s into the capitalist consensus. But in order to do so, the most important aspect of the 1960’s had to be buried, deeply buried::

In today’s ideological memory, “our” basic idea of the May demonstrations — the link between students’ protests and workers’ strikes — is forgotten.

Here is Zizek on this massive defaet:

The Big Outcome of the ’60s: The Triumph of Capitalism

After the social tumult of the ’60s capitalism usurped resistance itself, turning attempts at subversion into commodities.

By Slavoj Zizek

In 1968 Paris, one of the best-known graffiti messages on the city’s walls was “Structures do not walk on the streets!” In other words, the massive student and workers demonstrations of ‘68 could not be explained in the terms of structuralism, as determined by the structural changes in society, as in Saussurean structuralism. French psychoanalyst Jacques Lacan’s response was that this, precisely, is what happened in ‘68: structures did descend onto the streets. The visible explosive events on the streets were, ultimately, the result of a structural imbalance.

There are good reasons for Lacan’s skeptical view. As French scholars Luc Boltanski and Eve Chiapello noted in 1999’s The New Spirit of Capitalism, from the ’70s onward, a new form of capitalism emerged.

Capitalism abandoned the hierarchical Fordist structure of the production process — which, named after auto maker Henry Ford, enforced a hierarchical and centralized chain of command — and developed a network-based form of organization that accounted for employee initiative and autonomy in the workplace. As a result, we get networks with a multitude of participants, organizing work in teams or by projects, intent on customer satisfaction and public welfare, or worrying about ecology.

In this way, capitalism usurped the left’s rhetoric of worker self-management, turning it from an anti-capitalist slogan to a capitalist one. It was Socialism that was conservative, hierarchic and administrative.

The anti-capitalist protests of the ’60s supplemented the traditional critique of socioeconomic exploitation with a new cultural critique: alienation of everyday life, commodification of consumption, inauthenticity of a mass society in which we “wear masks” and suffer sexual and other oppressions.

The new capitalism triumphantly appropriated this anti-hierarchical rhetoric of ‘68, presenting itself as a successful libertarian revolt against the oppressive social organizations of corporate capitalism and “really existing” socialism. This new libertarian spirit is epitomized by dressed-down “cool” capitalists such as Microsoft’s Bill Gates and the founders of Ben & Jerry’s ice cream.

What survived of the sexual liberation of the ’60s was the tolerant hedonism readily incorporated into our hegemonic ideology. Today, sexual enjoyment is not only permitted, it is ordained — individuals feel guilty if they are not able to enjoy it. The drive to radical forms of enjoyment (through sexual experiments and drugs or other trance-inducing means) arose at a precise political moment: when “the spirit of ‘68″ had exhausted its political potential.

At this critical point in the mid-’70s, we witnessed a direct, brutal push-toward-the-Real, which assumed three main forms: first, the search for extreme forms of sexual enjoyment; second, the turn toward the Real of an inner experience (Oriental mysticism); and, finally, the rise of leftist political terrorism (Red Army Faction in Germany, Red Brigades in Italy, etc.).

Leftist political terror operated under the belief that, in an epoch in which the masses are totally immersed in capitalist ideological sleep, the standard critique of ideology is no longer operative. Only a resort to the raw Real of direct violence could awaken them.

What these three options share is the withdrawal from concrete socio-political engagement, and we feel the consequences of this withdrawal from engagement today.

Autumn 2005’s suburb riots in France saw thousands of cars burning and a major outburst of public violence. But what struck the eye was the absence of any positive utopian vision among protesters. If May ‘68 was a revolt with a utopian vision, the 2005 revolt was an outburst with no pretense to vision.

Here’s proof of the common aphorism that we live in a post-ideological era: The protesters in the Paris suburbs made no particular demands. There was only an insistence on recognition, based on a vague, non-articulated resentment.

The fact that there was no program in the burning of Paris suburbs tells us that we inhabit a universe in which, though it celebrates itself as a society of choice, the only option available to the enforced democratic consensus is the explosion of (self-)destructive violence.

Recall here Lacan’s challenge to the protesting students in ‘68: “As revolutionaries, you are hysterics who demand a new master. You will get one.”

And we did get one — in the guise of the post-modern “permissive” master whose domination is all the stronger for being less visible.

While many undoubtedly positive changes accompanied this passage — such as new freedoms and access to positions of power for women — one should nonetheless raise hard questions: Was this passage from one “spirit of capitalism” to another really all that happened in ‘68? Was all the drunken enthusiasm of freedom just a means to replacing one form of domination with another?

Things are not so simple. While ‘68 was gloriously appropriated by the dominant culture as an explosion of sexual freedom and anti-hierarchic creativity, France’s Nicholas Sarkozy said in his 2007 presidential campaign that his great task is to make France finally get over ‘68.

So, what we have is “their” and “our” May ‘68. In today’s ideological memory, “our” basic idea of the May demonstrations — the link between students’ protests and workers’ strikes — is forgotten.

If we look at our predicament with the eyes of ‘68, we should remember that, at its core, ‘68 was a rejection of the liberal-capitalist system, a “NO” to the totality of it.

It is easy to make fun of political economist Francis Fukuyama’s notion of the “end of history,” of his claim that, in liberal capitalism, we found the best possible social system. But today, the majority is Fukuyamaist. Liberal-democratic capitalism is accepted as the finally found formula for the best of all possible worlds, all that is left to do is render it more just, tolerant, etc.

When Marco Cicala, an Italian journalist, recently used the word “capitalism” in an article for the Italian daily La Repubblica, his editor asked him if the use of this term was necessary and could he not replace it with a synonym like “economy”?

What better proof of capitalism’s triumph in the last three decades than the disappearance of the very term “capitalism”? So, again, the only true question today is: Do we endorse this naturalization of capitalism, or does today’s global capitalism contain contradictions strong enough to prevent its indefinite reproduction?

There are (at least) four such antagonisms: the looming threat of ecological catastrophe; the inappropriateness of private property rights for so-called “intellectual property”; the socio-ethical implications of new techno-scientific developments (especially in biogenetics); and, last but not least, new forms of apartheid, in the form of new walls and slums.

The first three antagonisms concern the domains of what political theorists Michael Hardt and Toni Negri call “commons” — the shared substance of our social being whose privatization is a violent act that should be resisted with violent means, if necessary (violence against private property, that is).

The commons of external nature are threatened by pollution and exploitation (from oil to forests and natural habitat itself); the commons of internal nature (the biogenetic inheritance of humanity) are threatened by technological interference; and the commons of culture — the socialized forms of “cognitive” capital, primarily language, our means of communication and education, but also the shared infrastructure of public transport, electricity, post, etc. — are privatized for profit. (If Bill Gates were to be allowed a monopoly, we would have reached the absurd situation in which a private individual would have owned the software texture of our basic network of communication.)

We are gradually becoming aware of the destructive potential, up to the self-annihilation of humanity itself, that could be unleashed if the capitalist logic of enclosing these commons is allowed a free run.

Economist Nicholas Stern rightly characterized the climate crisis as “the greatest market failure in human history.”

There is an increasing awareness that we need global environmental citizenship, a political space to address climate change as a matter of common concern of all humanity.

One should give weight to the terms “global citizenship” and “common concern.” Doesn’t this desire to establish a global political organization and engagement that will neutralize and channel market forces mean that we are in need of a properly communist perspective? The need to protect the “commons” justifies the resuscitation of the notion of Communism: It enables us to see the ongoing “enclosure” of our commons as a process of proletarization of those who are thereby excluded from their own substance.

It is, however, only the antagonism between the Included and the Excluded that properly justifies the term Communism. In slums around the world, we are witnessing the fast growth of a population outside state control, living in conditions outside the law, in terrible need of minimal forms of self-organization. Although marginalized laborers, redundant civil servants and ex-peasants make up this population, they are not simply a redundant surplus: They are incorporated into the global economy, many working as informal wage workers or self-employed entrepreneurs, with no adequate health or social security coverage. (The main source of their rise is the inclusion of the Third World countries in the global economy, with cheap food imports from the First World countries ruining local agriculture.) These new slum dwellers are not an unfortunate accident, but a necessary product of the innermost logic of global capitalism.

Whoever lives in the favelas — or shanty towns — of Rio de Janeiro, Brazil, or in Shanghai, China, is not essentially different from someone who lives in the banlieues — or outskirts — of Paris or the ghettos of Chicago.

If the principal task of the 19th century’s emancipatory politics was to break the monopoly of the bourgeois liberals by politicizing the working class, and if the task of the 20th century was to politically awaken the immense rural population of Asia and Africa, the principal task of the 21st century is to politicize — organize and discipline — the “destructured masses” of slum-dwellers.

If we ignore this problem of the Excluded, all other antagonisms lose their subversive edge.

Ecology turns into a problem of sustainable development. Intellectual property turns into a complex legal challenge. Biogenetics becomes an ethical issue. Corporations — like Whole Foods and Starbucks — enjoy favor among liberals even though they engage in anti-union activities; they just sell products with a progressive spin.

You buy coffee made with beans bought at above fair-market value.

You drive a hybrid vehicle.

You buy from companies that provide good benefits for their customers (according to corporation’s standards).

In short, without the antagonism between the Included and the Excluded, we may well find ourselves in a world in which Bill Gates is the greatest humanitarian fighting poverty and diseases, and NewCorp’s Rupert Murdoch the greatest environmentalist mobilizing hundreds of millions through his media empire.

In contrast to the classic image of proletarians who have “nothing to lose but their chains,” we are thus ALL in danger of losing ALL. The risk is that we will be reduced to abstract empty Cartesian subjects deprived of substantial content, dispossessed of symbolic substance, our genetic base manipulated, vegetating in an unlivable environment.

These triple threats to our being make all of us potential proletarians. And the only way to prevent actually becoming one is to act preventively.

The true legacy of ‘68 is best encapsulated in the formula Soyons realistes, demandons l’impossible! (Let’s be realists, demand the impossible.)

Today’s utopia is the belief that the existing global system can reproduce itself indefinitely. The only way to be realistic is to envision what, within the coordinates of this system, cannot but appear as impossible.

Add comment June 27th, 2008

The torture trainers and the American Psychological Association

The CIA’s Torture Teachers, psychologists James Mitchell and Bruce Jessen [see Eban and Mayer for a reminder of their work], are in the news again. In a front page New York Times article on the interrogation of Khalid Shaikh Mohammed, it is mentioned that the subject of the story, Deuce Martinez is now employed by the dynamic torture firm:

His life today is quiet by comparison with the secret interrogations of 2002 and 2003. But Mr. Martinez has not turned away entirely from his old world. He now works for Mitchell & Jessen Associates, a consulting company run by former military psychologists who advised the C.I.A. on the use of harsh tactics in the secret program.

And his new employer sent Mr. Martinez right back to the agency. For now, the unlikely interrogator of the man perhaps most responsible for the horrors of 9/11 teaches other C.I.A. analysts the arcane art of tracking terrorists.

As Katherine Eban explains what was so distinctive about this firm:

Mitchell and Jessen reverse-engineered the tactics inflicted on sere trainees for use on detainees in the global war on terror, according to psychologists and others with direct knowledge of their activities. The C.I.A. put them in charge of training interrogators in the brutal techniques, including “waterboarding,” at its network of “black sites.”

They exemplified the CIA’s humane treatment of detainees:

Mitchell had a tougher approach in mind. The C.I.A. interrogators explained that they were going to become Zubaydah’s “God.” If he refused to cooperate, he would lose his clothes and his comforts one by one. At the safe house, the interrogators isolated him. They would enter his room just once a day to say, “You know what I want,” then leave again.

As Zubaydah clammed up, Mitchell seemed to conclude that Zubaydah would talk only when he had been reduced to complete helplessness and dependence. With that goal in mind, the C.I.A. team began building a coffin in which they planned to bury the detainee alive.

It seems that the coffin may not in the end have been used.

So Deuce Martinez, according to the Times, followed torture sessions with “rapport-based” sessions, getting KSM to talk. They report that he turned down a CIA offer of specialized training in the “enhanced interrogation techniques,”  aka torture, not because he objected but because he believed his talents lay elsewhere. As Eban explians, that training would have been with the torture duo:

Interrogators who were sent for classified training inevitably wound up in a Mitchell-Jessen “shop,” and some balked at their methods. Instead of the careful training touted by President Bush, some recruits allegedly received on-the-job training during brutal interrogations that effectively unfolded as live demonstrations.

The very fact that he accepted employment with the nation’s premier torture firm indicates that he had no ethical qualms about the Mitchell-Jessen approach.

The American Psychological Association has a long relationship with Mitchell and Jessen. Their firm was authorized to give APA Continuing Education credits, though rumor indicates that may no longer be the case:

Mitchell, Jessen, and Associates, LLC (MJA) is an executive consulting firm specializing in the area of understanding, predicting, and improving performance in high-risk and extreme situations. MJA develops specialized assessment and selection programs for high-risk occupations, devises and conducts tailored training for related, high-risk programs, and is additionally approved by the American Psychological Association to offer continuing professional education for psychologists.

After the Mitchell-Jessen directed torture of Abu Zubaydah resulted in numerous false leads that wasted thousands of hours of law enforcement time, the CIA together with the APA and the Rand Corporation conducted an invitation-only workshop on the Science of Deception, Mitchell, Jessen, and their likely CIA supervisor, Kirk Hubbard, were invited. Many APA leaders were likely also there, so it strains credulity that they are not intimately aware of Mitchell and Jessen’s work. Interestingly, the APA leadership has conveniently “lost” the attendance list.

As a further indication of APA’s connection to the CIA’s torture firm, one of the five “governing people” on the torture firm’s Board is former American Psychological Association President, Joseph Matarazzo. The APA is intensely disturbed by President Matzrazzo’s possible involvement in torture as can be gleaned from these ethically-principled quotes from APA leadership when Matzrazzo’s involvement was revealed last summer:

Then APA President Sharon Brehm: “No comment.”

APA Director of the Ethics Office and APA point man  on torture and interrogations: “No comment.”

But one official did have a comment, which says everything one needs to know about the ethics of APA leadership:

“Dr. Matarazzo was president of APA 18 years ago,” Rhea Farberman, the organization’s director of public affairs, said in a prepared statement.

“Since that time, he has had no active role in APA governance but has been actively involved in the American Psychological Foundation (APF), the charitable giving arm of APA. Dr. Matarazzo currently holds no governance positions in either APA or APF,” the statement said.

Matarazzo’s “professional activities are outside and independent of any role he has played within APA and APF,” the statement said. “We have no direct knowledge about the business dealing of Mitchell’s and Jessen’s company; however, APA’s position is clear – torture or other forms of cruel or inhuman treatment are always unethical.”

Notice the deep concern for Mitchell and Jessen’s and, potentially, Matarazzo’s, actions expressed in this statement. Notice the (missing) promise to investigate and, if confirmed, discipline this former APA President. After all, while “torture is unethical”, this former President’s “professional activities” are no concern of the APA.

Meanwhile, the Times article informs us that Mitchell & Jessen  Associates is still in the CIA’s good graces. Most likely they still have the torture contract. And as for the APA, they will most likely continue to forget about the firm’s connection to them. Coincidentally, the morning before the new New York Times article appeared, a member of the APA’s Board sent out to various listserv’s an odd statement:

Colleagues,

I wanted to share the fact that APA is aware of the concerns that two Washington state psychologists were employed by the Department of Defense to reverse-engineer survival and resistance training (which is designed to help U.S. military personnel in the event they are captured) for use in interrogations. These two psychologists are not APA members so are out of the reach of the APA’s ethics enforcement process but, nevertheless, APA’s position on inappropriate interrogations techniques is very clear.

In August of 2007, the APA Council of Representatives passed a resolution condemning the use of 19 interrogation techniques because they were unethical, abusive and constituted torture. These condemned techniques included waterboarding, forced nakedness, sexual humiliation, stress positions and the use of dogs to intimidate.

In terms of active duty military psychologists being used as trainers of harsh interrogation techniques, the media reports that I have seen suggest this was not the case. Rather, these reports have singled out military psychologists as raising concerns about aggressive interrogation techniques including waterboarding, forced nakedness and sleep depravation.

Notice that this esteemed APA board member cannot distinguish between the Defense Department, the subject of last week’s Senate Armed Services Committee (SASC) hearings, and the CIA that employed Mitchell and Jessen. Notice too that she conveniently ignores former APA President Matarazzo’s possible involvement in Mitchell and Jessens’s activities and also ignores the fact that APA invited Mitchell and Jessen to the APA-CIA-Rand conference.

One also may wonder what “media reports” this Board member read which featured military psychologists protesting abuse as the main story. After all, the Associated Press began its first story on the SASC investigation by stating:

Military psychologists were enlisted to help develop more aggressive interrogation methods, including snarling dogs, forced nudity and long periods of standing, against terrorism suspects, according to a Senate investigation.

3 comments June 23rd, 2008

Ray Bennett, retired military interrogator, speaks against torture

At a recent Human Rights First confence of interrogators speaking against torture, blogger Thomas Nephew spoke with retired military interrogator Ray Bennet. He recounted that discussion in his post: “I want my white hat back” - military interrogators against torture. I’ve met Ray Bennett and was very impressed with his integrity and passion to oppose torture. Like Maj. Frakt, whose legal argument I posted earlier today, Bennett is one of those military folk who take the idea of honor quite seriously.

Later Nephew conducted an email “interview” with Ray. Here it is. Because the comments to that post are interesting, I include them as well.

Interview with an interrogator

On Tuesday, Human Rights First held an event in downtown Washington D.C. honoring the efforts of professional military, CIA, and FBI interrogators to restore decency and respect for human rights to U.S. detainee interrogation policy. Human Rights First and these interrogators are advocating a policy of “rapport-based” interrogations — no torture and no cruel, inhumane or degrading treatment by anyone acting on behalf of the United States of America.

I had a conversation at that event with one man who is now retired from the military after extensive service as an interrogator. I wrote about our conversation here: “I want my white hat back” — military interrogators against torture.

Today I corresponded again with “Ray” — a pseudonym — about his positions on following orders to waterboard or otherwise torment a detainee, about what he thought his colleagues believe, about Abu Ghraib, and about what the future may hold.

1. If you had been ordered to waterboard someone or engage in other cruel/inhumane/degrading detainee mistreatment (e.g.., hypothermia, long time standing), what would you have done?

Refused the order. That would probably have resulted in my getting fired or re-assigned, but so be it. In addition, I would have documented the incident, and reported it to the Army’s (assuming that’s the environment I would have been working in) Criminal Investigation Division, or otherwise appropriate authorities.

2. [Excuse my ignorance here]: … what if the order was not “up to snuff” — not written, not verbally direct with witnesses, or whatever constitutes “an order that should be obeyed”?

Same answer. Refuse the order, immediately document the incident, and follow up with a report to the appropriate investigative authorities.

3. Do you believe that such orders/wishes should not be obeyed by military personnel?

This is where it gets murky. Personally, of course, I feel that they should not be obeyed. The difficulty for my collegues, especially in the military, is that we are sworn to follow “the lawful orders of the officers appointed above us”. So what’s lawful? All of us were trained in the Law of Land Warfare and the Geneva Conventions, which these “enhanced interrogation techniques” are clearly a violation of.. But Private Snuffy is confused: “didn’t the United States Attorney General, the top law enforcement official in the land, muddy the waters by saying that it was legal? And didn’t the president say that these folks don’t fall under the Geneva Conventions? So what about those rules they taught me?” We are doing our troops a great disservice by blurring the “lawful” line. So to answer your question again: me personally, I would hope that an order to carry out these techniques would be disobeyed. But I can’t really hold it against someone who carried it out, thinking that it was legal, and felt compelled to carry out a lawful order.

4. Do you feel your answers to the above three questions would be a majority opinion in the group of interrogators you were with over the past few days?

Question 1: Not just majority opinion, but unanimous.
Question 2: Same
Question 3: Certainly majority, if not unanimous. One of the retired generals in the group explicitly made the point that he did not want the authority to order these techniques carried out, for the reason listed above: it would make it a lawful order, and the soldiers serving under him would have no recourse but to carry out a lawful order, or face prosecution under the Uniform Code of Military Justice for failing to do so.

5. Do you believe that such orders/wishes should not be obeyed by any govt. personnel? (i.e., CIA or FBI — the latter seem to have drawn the line themselves, but that could change someday)

Same answer as number 3. I do not believe the order should be carried out, but it is asking a lot of these personnel to put their livelihoods and careers on the line, and we can condemn them with hindsight if we like, but the better solution is to not ask them to do it in the first place.

6. Do you feel there’s the possibility of professional opinion changing as new interrogators become accustomed to the new regime of loosened restrictions (at least within the CIA)?

I’m assuming you mean professional opinion changing for the worse. And yes, I can absolutely see that happening. Let’s say this policy stays in force. Those that would refuse the order would eventually be weeded out of the system, leaving only those that would use these techniques, and they in turn would be the only mentors to the next generations of interrogators. Those that abhor the techniques would be on the outside looking in. Basically, our group is in that same position. We are no longer in the military, or CIA, or FBI. We are on the barricades, but outside the fort, not inside. We are trying to influence the policymakers to not put those inside the fort into the position of having to compromise their core values. And we are arguing from a position of professional strength: sure, we also oppose these techniques on moral grounds, and in the belief that they dilute our nation’s image abroad (creating a breeding environment for more terrorists), etc., but mainly we are saying that from the standpoint of professional interrogators, we DO NOT NEED these techniques. We can get the job done without them.

I know that it’s important to follow orders in the military, but that’s not drilled in to me the way it is (and for 99.99% of cases, should be) for a soldier. On the other hand, I know at least one ex-military blogger who said, at the time Abu Ghraib broke, that the people involved should simply not have followed those orders (or carried out those wishes) based on code of conduct.

[I]t’s important to keep facts straight and in reasonable proportion. Abu Ghraib, for example. The abuses and resulting pictures were not an interrogation tactic, but a guard force night shift run amok. Don’t get me wrong: this was without question a horrific abuse of detainees in U.S. custody, and must be addessed and those responsible held to account. All I’m saying is that it’s a different discussion. Yes, there were comments from interrogators to “make sure he has a bad night” etc, maybe even with a nudge/wink, and those interrogators share the resulting fiasco, because they were not clear in their instructions. But I don’t think what resulted was really what the interrogators had in mind. Nevertheless, it is this nudge/wink and between the lines communication that were part of the permissive environment that ended as it did. Most of the orders leading to the abuses were not in writing, if any of them were. The only exception I can think of would be the use of “military working dogs”. That was a technique promoted by a general (who was not an intelligence officer, let alone an interrogator). Unfortunately, by virtue of his rank and position, he held authority over detainee treatment and interrogation procedures. As for the ex-military blogger you mentioned, I only say that we all see clearly in hindsight. The answer, again, lies in not putting these soldiers and other intelligence professionals into this netherworld of blurred lines and questionable legal definitions, for soldiers are conditioned to follow lawful orders. They are not lawyers, and we can not expect them to be. They must have clearly defined delineations, which were provided under the Laws of Land Warfare and the Geneva Conventions, and don’t need the waters muddied by policymakers and their lawyers, who in the end don’t know anything about interrogation beyond what they’ve seen on television.

Add comment June 22nd, 2008

Frakt: Closing Argument in Favor of Dismissal of the Case Against Mohammad Jawad

In the fight against torture, some of the most persistent critics of administration policy have been from the military. There are many within the military that believe the concepts of honor that they were taught so long ago. Two groups within the military stand out as exemplary in their commitment to opposing US torture ad abuse: the military attorneys, and the veteran interrogators.

Here I post the closing argument of Maj. David Frakt, defense attorney for Guantanamo prisoner Mohammad Jawad, in the hearing on Maj. Frakt’s motion to dismiss charges due to US torture. Later I will post a interview with a veteran interrogator. Both are amazing documents. If you are tempted to skip this long post, read the opening paragraphs. You will see why this is not to be missed and why Maj. Frakt is an American hero, albeit one of Amy and David Goodman’s ordinary heroes, those who stand up for what is right when the situation calls for it.

I tried to select out certain paragraphs of the argument for special attention, but found that every paragraph was special. This may go down as one of the great documents to arise out of this sordid mess. However, In a separate post I will select out certain passages on the horrific sleep deprivation punishment commonly referred to as the “frequent flyer program” that Mr Jawad was subjected to for 14 horrific days in 2004. [The revised "frequent flyer program," designed for punishment and not interrogations, apparently has a different name, but the name is classified.]

Here is Maj. Frakt’s argument:

Major David J. R. Frakt’s Closing Argument in Favor of Dismissal of the Case Against Mohammad Jawad
(6/19/2008)

On Feb 7, 2002, President Bush issued an order. The order stated, in pertinent part “I accept the legal conclusion of the Department of Justice and determine that Common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees.”

“I determine that the Taliban detainees do not qualify as prisoners of war. . .al Qaeda detainees also do not qualify as prisoners of war.”

“Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. . . As a matter of policy the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

With these fateful and ill-advised words, President Bush, our Commander-in-Chief, perhaps unwittingly, perhaps not, started the U.S. down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of “the ends justify the means,” before plummeting further into the bleak underworld of barbarism and cruelty, of “anything goes,” of torture. It was a path that led inexorably to the events that brings us here today, the pointless and sadistic treatment of Mohammad Jawad, a suicidal teenager.

President Bush’s words were important, and deserve special attention. For those of us in the military who have faithfully attended our annual Law of Armed Conflict training, or in my case, have given the training many times, the Geneva Conventions and humane treatment were synonymous, they were one and the same. The Geneva Conventions represented the baseline, they embodied the determination of the world to make war a more humane enterprise, to prevent a descent into wholesale barbarity, as had occurred during the Second World War. But now we were being told that humane meant something else, something less, than the Geneva Conventions. And we were being told that we could act inconsistently with the Geneva Conventions, when military necessity demanded it. Those of us who were familiar with the Geneva Conventions, whose job it was to know them, were puzzled and deeply troubled by the President’s order and had serious forebodings about the implications of such a decision. We understood that there were no gaps in Geneva, there were was no one who fell outside their protection, that Common Article 3 applied to everyone.

But the civilian political appointees of this administration intentionally cut out the real experts on the law of armed conflict, the uniformed military lawyers, the JAGs, were out of the loop, for fear that their devotion to the Geneva Conventions might pose an obstacle to their intended course of action. The State Department, led by Colin Powell, tried to raise a red flag, but to no avail. Instead, the administration chose to rely on the infamous torture memos by John Yoo, Robert Delahunty and Jay Bybee. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrapheap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammad Jawad.

I’m sure that all of these people, the President included, thought they were doing what was best. But what sometimes appears to be in the interests of America at first glance, upon further reflection reveals itself not to be. Interning Japanese-Americans during World War II perhaps seemed like a good idea at the time, but in hindsight we can see that it was a terrible injustice, inconsistent with American ideals and utterly unconstitutional. It is a shameful episode in our history, a xenophobic overreaction. The conscious, deliberate decision to abandon the Geneva Conventions and the entire fiasco that is Guantanamo will undoubtedly be viewed by historians as an even more disgraceful chapter in our history.

The Feb 7, 2002, order of President Bush invited the rule of law to be circumvented. Even though the President paid lip service to humane treatment, by stating that detainees were not legally entitled to be treated humanely, and by his qualification of “to the extent appropriate and consistent with military necessity” the implication was clear — it was only policy to be humane, not a legal requirement, and there would be no legal consequences to those who didn’t treat detainees humanely, if there was some military justification for it. Of course, during a “global war,” it is possible to rationalize almost anything under the general rubric of military necessity. After all, if there is even a slight possibility that some military advantage might be gained by some course of action, don’t we owe it to our troops to do it? If there is even a minute chance that some sliver of intelligence might be gleaned about an impending terrorist attack, don’t we owe it to the American people to do everything in our power to extract it? The obvious answer to most of those working in detainee operations at Guantanamo and elsewhere was “Yes.”

Adding to the pervasive atmosphere of lawlessness in the early days of Guantanamo was the administration’s assertion that the detainees could be held indefinitely without charge, without access to counsel, without any recourse to challenge their detention. The administration asserted that the detainees were beyond the reach of any federal court and were not eligible for habeas corpus, a hallowed right guaranteed by the founding fathers of this great country. In effect, the administration created a legal black hole at Guantanamo, a policy universally decried by our even our staunchest allies in the war on terror, but steadfastly defended by the administration.

If there was any doubt that the President intended unlawful tactics to be used, all doubt was erased when Secretary of Defense Rumsfeld authorized, on Dec 2, 2002, numerous extra-legal special interrogation techniques. These techniques and how they were developed and utilized were the subject of hearings before the Senate Armed Service Committee yesterday and are described in detail in the book Torture Team, which I have attached to this motion. I’m sure Phillipe Sands would be honored to have his book included in the record of this commission.

Eventually, cooler and wiser heads started to inject some rationality into the treatment of the Guantanamo detainees. Unsung heroes like Alberto Mora, Navy General Counsel, and Admiral Jane Dalton, and the service TJAGs Gen Rives, Gen Romig, fought vigorously for the restoration of Geneva. But it ultimately took the intervention of the Supreme Court to restore the rule of law to Guantanamo. The Court intervened and made it clear that the Geneva Conventions did apply to detainees at Guantanamo, and that they did have the right to habeas corpus, a right that Congress has twice, unsuccessfully, attempted to take away. This fight to restore the rule of law took time, years in fact, in which the detainees of Guantanamo continued to suffer indignity and inhumanity. It was not until July 2006 when the Deputy Secretary of Defense Gordon England issued a memorandum stating that “common Article 3 of the Geneva Convention applies as a matter of law“ to the treatment of detainees held by the Department of Defense, and that the “humane treatment [is] the overarching requirement of Common Article 3.” Unfortunately, by then, the damage had already been done, both to the detainees and to the reputation of the United States as a law-abiding country.

America is a nation founded on a reverence for the rule of law. We should never forget that when we take an oath to enlist or be commissioned as an officer in the United States Armed Forces, we do not swear to defend the United States, we swear “to support and defend the Constitution of the United States against all enemies, foreign and domestic.” The Oath of Office for the President contains similar words: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Tragically, under the undeniably heavy pressure to defend Americans from terrorist attack, some of our military and civilian leaders lost sight of their obligation to defend the Constitution as well.

Under the Constitution all men are created equal, and all are entitled to be treated with dignity. No one is “undeserving” of humane treatment. It is an unmistakable lesson of history that when one group of people starts to see another group of people as “other” or as “different,” as “undeserving” as “inferior,” ill-treatment inevitably follows. In the Global War on Terror generally and in the detention camps of Guantanamo especially, the detainees were seen as “terrorists,” as “the worst of the worst” something less than human, and were treated accordingly. After six and a half years, we now know the truth about the detainees at Guantanamo: some of them are terrorists, some of them are foot soldiers, and some of them were just innocent people, caught in the wrong place at the wrong time. But the detainees at Guantanamo have one thing in common — with each other, and with us — they are all human beings, and they are all worthy of humane treatment. We should also never forget that no one in Guantanamo has been convicted of a single crime and that even in these deeply flawed military commissions, they are entitled to a presumption of innocence.

Throughout the Global War on Terror we have heard repeatedly from our military and civilian leaders that this was a new kind of war, a war that requires new methods, new ideas, “thinking outside the box.” So that is what the highly creative and motivated people at Guantanamo did, they abandoned the tried and true and lawful methods of Army Field Manual 34-52 and wrote a new playbook, a playbook that included intimidation with dogs, sexual humiliation, and sleep deprivation. These and other methods were employed at Guantanamo and, as the Schlesinger report put it, migrated to Abu Ghraib, where they resulted in the shocking conduct portrayed in the infamous photographs. The Secretary of Defense said “take the gloves off” and the soldiers and sailors of Guantanamo saluted smartly and said, “Yes, Sir!” In fact, many of the illegal and abusive “enhanced” interrogation techniques were personally approved for use by the Secretary of Defense; other techniques, like the frequent flyer program, were simply invented on the fly.

The public revelation of the events at Abu Ghraib on 60 Minutes II in late April 2004, caused the Department of Defense to go into full damage control mode. As part of the damage assessment, Secretary Rumsfeld dispatched the Navy Inspector General, Vice Admiral Church, to Guantanamo to evaluate the treatment of detainees there. He visited Guantanamo from May 5 to May 7, 2004, and reported back to the Secretary and to the press that there was virtually no detainee abuse at Guantanamo, and that everything was in order. Gen Hood was running a tight ship. Detainees received great treatment. Incredibly, the very day that Admiral Church was investigating conditions at Guantanamo and finding the treatment of detainees to be so wonderful, detention officials at Guantanamo ordered the initiation of the frequent flyer program on Mohammad Jawad. Before the wheels of Admiral Church’s plane were even off the Guantanamo runway, Mohammad Jawad’s arms and legs were being shackled in preparation for the first of 112 moves up and down the hall of L Block, every 3 hours for the next 14 days. While Jawad was being shackled for the first of these moves, back on Capitol Hill, Secretary of Defense Rumsfeld was testifying before the Senate and House Armed Services Committees, reassuring the nation that the abuse at Abu Ghraib was isolated to a few rogue guards. When Secretary Rumsfeld testified before the HASC on May 7, 2004, the day the torture of Mohammad Jawad commenced, he told Congress, in reference to those detainees who had been abused at Abu Ghraib, Quote “I am seeking a way to provide appropriate compensation to those detainees who suffered such grievous and brutal abuse and cruelty at the hands of a few members of the U.S. military. It’s the right thing to do.” Today, the government takes a decidedly different tack. They deny the suffering of Mr. Jawad, accusing him of being weak. And they are attempting to reward him by pressing forward with the first war crimes trial against a child soldier in the history of the civilized world.

Major General Hood the JTF-GTMO Commander who took command in March 2004, states that he ordered the frequent flyer program stopped in late March 2004. He says he did not authorize and would not have authorized the program to be administered to Mohammad Jawad. Gen James T. Hill, the Southcom Commander, the person to whom Maj Gen Hood reported directly, states that he did not authorize the frequent flyer program, did not know about it, and that is was contrary to his orders which required prior approval for sleep deprivation and limited it to four days. The Joint Detention Group Commander, Maj Gen Cannon disavows any knowledge of Mr. Jawad’s treatment, in fact, MG Cannon seems to have developed a very convenient case of amnesia. The Joint Intelligence Group Director, Esteban Rodriguez, doesn’t know about Jawad’s treatment specifically, but states that there was a second, unauthorized frequent flyer program carried out by the Joint Detention Group used as a form of disciplinary measure. He said, as did Maj Gen Hood, that there was no special effort to collect intelligence from Mr. Jawad, that he was not believed to possess any valuable intelligence. This is borne out by the fact, at least based on the information provided to me by the government, that no interrogations of Mr. Jawad took place at or near the time that he was being tortured. Thus, the most likely scenario is that they simply decided to torture Mr. Jawad for sport, to teach him a lesson, perhaps to make an example of him to others. Whatever the reason, it was a direct violation of MG Hood’s orders, and a grave breach of the Geneva Convention and the Convention against Torture.

According to MG Hood, the first he learned of this is when I informed him a couple of weeks ago. He was provided the DIMS report, the motion, and the spreadsheet that I prepared. What was his reaction? A resounding thud of indifference. In fact, it took an order from you, your honor, to even get him to talk me about it. Here was a Major General in the Army who has just learned that a detainee was subjected to grave abuse, on his watch, in direct violation of his orders. One would have expected him to go through the roof, to order heads to roll, to launch an immediate investigation and he couldn’t even be bothered. Quite a contrast from the way General Hartmann reacted when he thought his orders weren’t being followed.

As for MG Cannon, he was similarly apathetic, if not more so about the plight of Mohammad Jawad. It is an absolute disgrace that this officer has been promoted twice after allowing a suicidal teenager to be subjected to this kind of abuse in his detention facility. It is my recommendation that charges be preferred against MG Cannon under the UCMJ for cruelty, maltreatment and abuse, dereliction of duty, and violation of a lawful order at the earliest opportunity. He was the Commander of the Detention Group. He completely and utterly failed to prevent the flagrant abuse of a detainee under his protection. It is high time that someone in a position of authority be held accountable, and not just the guards who were carrying out orders this time.

Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives. Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

February 7, 2002. America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.

Today, Your Honor, you have an opportunity to restore a bit of America’s lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights.

Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.

I have provided you with legal authority for the proposition that you have the power to dismiss these charges. I can’t stand before you and say that you are legally required to do so. But I can say that that it is a moral imperative to do so, and I ask that you do so.

5 comments June 22nd, 2008

Senator Levin’s Opening Statement at Senate Armed Services hearing

This past Tuesday the Senate Armed Services Committee (SASC) help historic hearings into the origins (with the Defense Department, as opposed to the CIA) of this country’s torture policies and tactics. These hearings definitively showed that the military’s SERE (Survival, evasion, Resistance, and Escape) program was “reverese-engineered” to develop techniques to torture detainees. The hearing also showed that psychologists played crucial roles in this transformation process. Unfortunately the hearings did not go into the CIA connections, due to obstruction from the CIA.

I posted excerpts from documents released there the other day. Here I post Chair Carl Levin’s Opening Statement laying out the findings:

Senate Armed Services Committee Hearing: The Origins of Aggressive Interrogation Techniques

Part I of the Committee’s Inquiry into the Treatment of Detainees in U.S. Custody

Documents referenced in Senator Levin’s opening statement [PDF]

Today’s hearing will focus on the origins of aggressive interrogation techniques used against detainees in U.S. custody. We have three panels of witnesses today and I want to thank them for their willingness to voluntarily appear before the Committee.

Intelligence saves lives. Knowing where an insurgent has buried an IED can keep a vehicle carrying Marines in Iraq from being blown up. Knowing that an al Qaeda associate visited an internet café in Kabul could be the key piece of information that unravels a terrorist plot targeting our embassy. Intelligence saves lives.

But how do we get the people who know the information to share it with us? Does degrading them or treating them harshly increase the chances that they’ll be willing to help? Just a couple of weeks ago I visited our troops in Afghanistan. While I was there I spoke to a senior intelligence officer who told me that treating detainees harshly is actually an impediment – a “roadblock” to use that officer’s word – to getting intelligence from them.

Here’s why, he said – al Qaeda and Taliban terrorists are taught to expect Americans to abuse them. They’re recruited based on false propaganda that says the United States is out to destroy Islam. Treating detainees harshly only reinforces their distorted view and increases their resistance to cooperate. The abuse at Abu Ghraib was a potent recruiting tool for al Qaeda and handed al Qaeda a propaganda weapon they could use to peddle their violent ideology.

So, how did it come about that American military personnel stripped detainees naked, put them in stress positions, used dogs to scare them, put leashes around their necks to humiliate them, hooded them, deprived them of sleep, and blasted music at them. Were these actions the result of “a few bad apples” acting on their own? It would be a lot easier to accept if it were. But that’s not the case. The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality, and authorized their use against detainees. In the process, they damaged our ability to collect intelligence that could save lives.

Today’s hearing will explore part of the story: how it came about that techniques, called SERE resistance training techniques, which are used to teach American soldiers to resist abusive interrogations by enemies that refuse to follow the Geneva Conventions, were turned on their head and sanctioned by Department of Defense officials for use offensively against detainees. Those techniques included use of stress positions, keeping detainees naked, use of dogs, and hooding during interrogations.

Background on Survival Evasion Resistance and Escape (SERE) Training

Some brief background on SERE, which stands for Survival Evasion Resistance and Escape training. The U.S. military has five SERE schools to teach certain military personnel – whose missions create a high risk that they might be captured – the skills needed to survive in hostile enemy territory, evade capture, and escape should they be captured. The resistance portion of SERE training exposes students to physical and psychological pressures designed to simulate abusive conditions to which they might be subject if taken prisoner by enemies that may abuse them. The Joint Personnel Recovery Agency – JPRA – is the DoD agency that oversees SERE training. JPRA’s instructor guide states that a purpose of using physical pressures in the training is “stress inoculation,” building soldiers’ immunities so that should they be captured and subject to harsh treatment, they will be better prepared to resist. The techniques used in SERE resistance training can include things like stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some sailors who attended the Navy’s SERE school, it included waterboarding – mock drowning.

The SERE schools obviously take extreme care to avoid injuring our own soldiers. Troops are medically screened to make sure they’re fit for the SERE course. Prior to the training, each student’s physical limitations are carefully documented to reduce the chance that the SERE training and the use of SERE techniques will cause injury. There are explicit limitations on the duration and intensity of physical pressures. For example, when waterboarding was permitted at the Navy SERE school, the instructor manual stated that a maximum of two pints of water could be used on a student who was being waterboarded and, if a cloth was used to cover a student’s face, it could stay in place a maximum of 20 seconds.

SERE resistance training techniques are legitimate and important training tools. They prepare our forces who might fall into the hands of an abusive enemy to survive by getting them ready for what might confront them.

Strict controls are also in place during SERE resistance training to reduce the risk of psychological harm to students. Psychologists are present throughout SERE training to intervene should the need arise and to talk to students during and after the training to help them cope with associated stress.

Those who play the part of interrogators in the SERE school drama are not real interrogators – nor are they qualified to be. As the Deputy Commander for the Joint Forces Command put it “the expertise of JPRA lies in training personnel how to respond and resist interrogations – not in how to conduct interrogations.” That distinction is a fundamental one.

Some might say that if our personnel go through it in SERE school, what’s wrong with doing it to detainees. Well, our personnel are students and can call off the training at any time. SERE techniques are based on abusive tactics used by our enemies. If we use those same techniques offensively against detainees, it says to the world that they have America’s stamp of approval. That puts our troops at greater risk of being abused if they’re captured. It also weakens our moral authority and harms our efforts to attract allies to our side in the fight against terrorism.

Department of Defense General Counsel’s Office Contacts JPRA

So, how did SERE techniques come to be considered by DoD for detainee interrogations. In July 2002, Richard Shiffrin, a Deputy General Counsel in the Department of Defense and a witness at today’s hearing, called Lieutenant Colonel Daniel Baumgartner, also a witness today and then the Chief of Staff at JPRA – the agency that oversees the SERE training – and asked for information on SERE techniques.

In response to Mr. Shiffrin’s request, Lt. Col. Baumgartner drafted a two-page memo, (TAB 1) and compiled several documents, including excerpts from SERE instructor lesson plans, that he attached to his memo saying JPRA would “continue to offer exploitation assistance to those government organizations charged with the mission of gleaning intelligence from enemy detainees.” The memo was hand delivered to the General Counsel’s office on July 25, 2002. Again, it is critical to remember here; these techniques are not used in SERE school to obtain intelligence, they are to prepare our soldiers to resist abusive interrogations.

The next day, Lt. Col. Baumgartner drafted a second memo (TAB 2), which included three attachments. One of those attachments (TAB 3) listed physical and psychological pressures used in SERE resistance training including sensory deprivation, sleep disruption, stress positions, waterboarding, and slapping. It also made reference to a section of the JPRA instructor manual that talks about “coercive pressures” like keeping the lights at all times, and treating a person like an animal. Another attachment (TAB 4), written by Dr. Ogrisseg, also a witness today, assessed the long-term psychological effects of SERE resistance training on students and the effects of the waterboard.

This morning, the Committee will have the chance to ask Mr. Shiffrin, Lt. Col. Baumgartner, and Dr. Ogrisseg about these matters.

Office of Legal Counsel (OLC) Issues Legal Guidance for Interrogations

On August 1, 2002, a week after Lt. Col. Baumgartner sent his memos to the DoD General Counsel, the Department of Justice’s Office of Legal Counsel (OLC) issued two legal opinions. One (TAB 5), commonly known as the first Bybee memo, was addressed to then-White House Counsel Alberto Gonzales and provided OLC’s opinion on standards of conduct in interrogation required under the federal torture statute. That memo concluded:

[F]or an act to constitute torture as defined in [the federal torture statute], it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under [the federal torture statute], it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.

The other OLC opinion, issued the same day and known commonly as the second Bybee memo, responded to a CIA request, and addressed the legality of specific interrogation tactics.

While the interrogation tactics reviewed by the OLC in the second Bybee memo remain classified, General Hayden, in public testimony before the Senate Intelligence Committee in February of this year, said that the waterboard was one of the techniques that the CIA used with detainees. Steven Bradbury, the current Assistant Attorney General of the OLC, testified before the House Judiciary Committee earlier this year that the “CIA’s use of the waterboarding procedure was adapted from the SERE training program.”

JPRA Conducts Training for Guantanamo Bay Personnel

During the time the DoD General Counsel’s office was seeking information from JPRA, JPRA staff, responding to a request from Guantanamo, were finalizing plans to conduct training for interrogation staff from U.S. Southern Command’s Joint Task Force 170 at GTMO. During the week of September 16, 2002, a group from GTMO, including interrogators and behavioral scientists, travelled to Fort Bragg, North Carolina, and attended training conducted by instructors from the JPRA SERE school. None of the three JPRA personnel who provided the training was a trained interrogator.

CIA Provides Advice to U.S. Southern Command’s JTF-170 on Interrogations

On September 25, 2002, just days after GTMO staff returned from that training, a delegation of senior Administration lawyers, including Jim Haynes, General Counsel to the Department of Defense, John Rizzo, acting CIA General Counsel, David Addington, Counsel to the Vice President, and Michael Chertoff head of the Criminal Division at the Department of Justice, visited GTMO. An after action report (TAB 6) produced by a military lawyer after the visit noted that one purpose of the trip was to receive briefings on “intel techniques.”

On October 2, 2002, a week after John Rizzo, the acting CIA General Counsel visited GTMO, a second senior CIA lawyer, Jonathan Fredman, who was chief counsel to the CIA’s CounterTerrorism Center, went to GTMO, attended a meeting of GTMO staff and discussed a memo proposing the use of aggressive interrogation techniques. That memo had been drafted by a psychologist and psychiatrist from GTMO who, a couple of weeks earlier, had attended the training given at Fort Bragg by instructors from the JPRA SERE school.

While the memo remains classified, minutes from the meeting where it was discussed are not. Those minutes (TAB 7) clearly show that the focus of the discussion was aggressive techniques for use against detainees.

When the GTMO Chief of Staff suggested at the meeting that GTMO “can’t do sleep deprivation,” LTC Beaver, GTMO’s senior lawyer, responded “Yes we can – with approval.” LTC Beaver added that GTMO “may need to curb the harsher operations while [International Committee of the Red Cross] is around.”

Mr. Fredman, the senior CIA lawyer, suggested it’s “very effective to identify [detainee] phobias and use them” and described for the group the so-called “wet towel” technique, which we know as waterboarding. Mr. Fredman said “it can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function.”

And Mr. Fredman presented the following disturbing perspective of our legal obligations under anti-torture laws, saying “It is basically subject to perception. If the detainee dies you’re doing it wrong.”

If the detainee dies, you’re doing it wrong. How on earth did we get to the point where a senior United States Government lawyer would say that whether or not an interrogation technique is torture is “subject to perception” and that “if the detainee dies you’re doing it wrong.” What was GTMO’s senior JAG officer, LTC Beaver’s response? “We will need documentation to protect us.”

Nine days after that October 2, 2002, meeting, General Dunlavey, the Commander of Joint Task Force 170 at GTMO, sent a memo to U.S. Southern Command (TAB requesting authority to use interrogation techniques which the memo divided into three categories of progressively more aggressive techniques. Category I was the least aggressive. Category II was more so and included the use of stress positions, exploitation of detainee fears (such as fear of dogs), removal of clothing, hooding, deprivation of light and sound. Category III techniques included techniques like the so-called wet towel treatment, or “waterboard,” that were the most aggressive. A legal analysis (TAB by GTMO’s Staff Judge Advocate, LTC Diane Beaver justifying the legality of the techniques, was sent with the request.

On October 25, 2002, General James Hill, the SOUTHCOM Commander forwarded General Dunlavey’s request to the Chairman of the Joint Chiefs of Staff (TAB 9). Days later, the Joint Staff solicited the views of the military services on the GTMO request.

Military Lawyers Weigh in Against GTMO Request

The military services reacted strongly against using many of the techniques in the GTMO request. In early November 2002, in a series of memos, the services identified serious legal concerns with the techniques and they called urgently for additional analysis.

• The Air Force (TAB 10) cited “serious concerns regarding the legality of many of the proposed techniques” and stated that “the techniques described may be subject to challenge as failing to meet the requirements outlined in the military order to treat detainees humanely…” The Air Force also called for an in depth legal review of the request.
• The Chief Legal Advisor to the Criminal Investigative Task Force at GTMO wrote (TAB 11) that Category III techniques and certain Category II techniques “may subject service members to punitive articles of the UCMJ [Uniform Code of Military Justice],” called “the utility and legality of applying certain techniques” in the request “questionable,” and stated that he could not “advocate any action, interrogation or otherwise, that is predicated upon the principle that all is well if the ends justify the means and others are not aware of how we conduct our business.”
• The Chief of the Army’s International and Operational Law Division wrote (TAB 12) that techniques like stress positions, deprivation of light and auditory stimuli, and use of phobias to induce stress “crosses the line of ‘humane’ treatment,” would “likely be considered maltreatment” under the UCMJ, and “may violate the torture statute.” The Army labeled the request “legally insufficient” and called for additional review.
• The Navy response (TAB 13) recommended a “more detailed interagency legal and policy review” of the request.
• And the Marine Corps (TAB 14) expressed strong reservations, stating that “several of the Category II and III techniques arguably violate federal law, and would expose our service members to possible prosecution.” The Marine Corps said the request was not “legally sufficient,” and like the other services, called for “a more thorough legal and policy review.”

While it has been known for some time that military lawyers voiced strong objections to interrogation techniques in early 2003 during the DoD Detainee Working Group process, these November 2002 warnings from the military services – expressed before the Secretary of Defense authorized the use of aggressive techniques – were not publicly known before now.When the Joint Staff received the military services’ concerns, RADM Jane Dalton, then-Legal Advisor to the Chairman of the Joint Chiefs of Staff, began her own legal review of the proposed interrogation techniques, but that review was never completed. Today we’ll have the opportunity to ask RADM Dalton about that.

Secretary of Defense Approves GTMO Request

Notwithstanding concerns raised by the military services, Department of Defense General Counsel Jim Haynes sent a memo (TAB 15) to Secretary of Defense Donald Rumsfeld on November 27, 2002, recommending that he approve all but three of the eighteen techniques in the GTMO request. Techniques like stress positions, removal of clothing, use of phobias (such as fear of dogs), and deprivation of light and auditory stimuli were all recommended for approval.

Five days later, on December 2, 2002, Secretary Rumsfeld signed Mr. Haynes’s recommendation, adding the handwritten note “I stand for 8-10 hours a day. Why is standing limited to 4 hours?” When Secretary Rumsfeld approved the use of the use of abusive techniques against detainees, he unleashed a virus which ultimately infected interrogation operations conducted by the U.S. military in Afghanistan and Iraq.

Heated Discussions at GTMO about SERE and Khatani Interrogation

Discussions about “reverse engineering” SERE techniques for use in interrogations at GTMO had already prompted strong objections by the Department of Defense’s Criminal Investigative Task Force (CITF) at GTMO. CITF Deputy Commander Mark Fallon said that SERE techniques were “developed to better prepare U.S. military personnel to resist interrogations and not as a means of obtaining reliable information” and that “CITF was troubled with the rationale that techniques used to harden resistance to interrogations would be the basis for the utilization of techniques to obtain information.”

The dispute over the use of aggressive techniques came to a head with the military’s plan for interrogating Mohammed al-Khatani. Both CITF and FBI strongly opposed the military’s plan and CITF took their concerns up the Army Chain of Command and even to the DoD General Counsel’s office; but over CITF’s objections, the military’s plan was approved. The Khatani interrogation began on November 23, 2002, just over a week before the Secretary signed the Haynes memo.

SOUTHCOM Commander General James Hill described the Khatani interrogation in a June 3, 2004 press briefing. He said: “The staff at Guantanamo working with behavioral scientists, having gone up to our SERE school and developed a list of techniques which our lawyers decided and looked at, said were OK.” General Hill said “we began to use a few of those techniques . . . on this individual . . .”

Key documents relating to Khatani’s interrogation remain classified. Published accounts, however, indicate that Khatani was deprived of adequate sleep for weeks on end, stripped naked, subjected to loud music, a dog was used to scare him, and a leash was placed around his neck as he was forced to perform dog tricks.

On May 13, 2008, the Pentagon announced in a written statement that the Convening Authority for military commissions had “dismissed without prejudice the sworn charges against Mohamed al Khatani.” The statement does not indicate the role his treatment played in that decision.

GTMO Develops SERE SOP – Navy SERE School Trainers Visit GTMO

In the week following the Secretary’s December 2, 2002, authorization, senior staff at GTMO set to work drafting a Standard Operating Procedure (SOP) specifically for the use of SERE techniques in interrogations. The first page of one draft of that SOP (TAB 16) stated that “The premise behind this is that the interrogation tactics used at U.S. military SERE schools are appropriate for use in real-world interrogations. These tactics and techniques are used at SERE school to ‘break’ SERE detainees. The same tactics and techniques can be used to break real detainees during interrogation.” The draft described how to slap, strip, and place detainees in stress positions. It also described “hooding,” “manhandling,” and “walling” detainees.

When they saw the draft SOP, CITF and FBI personnel again raised a red flag. A draft of their comments on the SOP (TAB 17) said the use of aggressive techniques only “ends up fueling hostility and strengthening a detainee’s will to resist.” But those objections did not stop GTMO from taking the next step – training interrogators on how to use the techniques offensively.

On December 30, 2002, two instructors from the Navy SERE school arrived at GTMO (TAB 19). The following day, in a session with approximately 24 interrogation personnel, the two demonstrated how to administer stress positions, and various slaps – just like they do it in SERE school.

Around this time, General Hill, the Commander of the U.S. Southern Command spoke to General Miller and discussed the fact that a debate was occurring over the Secretary’s approval of the techniques. In fact, CITF’s concerns had made their way up to then-Navy General Counsel Alberto Mora and a battle over interrogation techniques was being waged at senior levels in the Pentagon.

On January 3, 2003, three days after they conducted the training, the SERE instructors met with Major General Miller. According to some who attended, General Miller stated that he did not want his interrogators using the techniques that the Navy SERE instructors had demonstrated. That conversation took place after the training had already occurred and not all the interrogators who attended the training got the message.

U.S. Navy General Counsel Objects to Interrogation Techniques

Two weeks earlier, on December 20, 2002, Alberto Mora had met with DoD General Counsel Jim Haynes. In a memo describing the meeting (TAB 18), Mr. Mora says he told Mr. Haynes that he thought interrogation techniques that had been authorized by the Secretary of Defense on December 2, 2002 “could rise to the level of torture” and asked him, “What did ‘deprivation of light and auditory stimuli’ mean? Could a detainee be locked in a completely dark cell? And for how long? A month? Longer? What exactly did the authority to exploit phobias permit? Could a detainee be held in a coffin? Could phobias be applied until madness set in?”

On January 9, 2003, Alberto Mora met with Jim Haynes again. According to his memo, Mora expressed frustration that the Secretary’s authorization had not been revoked and told Haynes that the policies could threaten Secretary Rumsfeld’s tenure and even damage the presidency.

On January 15, 2003, having gotten no word that the Secretary’s authority would be withdrawn, Mora delivered a draft memo to Haynes’s office stating that “the majority of the proposed category II and all of the category III techniques were violative of domestic and international legal norms in that they constituted, at the minimum, cruel and unusual treatment and, at worst, torture.” In a phone call, Mora told Haynes he would be signing his memo later that day unless he heard definitively that the use of the techniques was being suspended. In a meeting that same day, Haynes returned the draft memo and told Mora that the Secretary would rescind the techniques.

Working Group Report on Detainee Interrogations

On January 15, 2003, the Secretary rescinded his December 2, 2002, authorization (TAB 20). At the same time, he directed the establishment of a “Working Group” to review interrogation techniques. What happened next has already become well known. For the next few months the judgments of senior military and civilian lawyers critical of legal arguments supporting aggressive interrogation techniques were rejected in favor of a legal opinion from Office of Legal Counsel’s (OLC) John Yoo. The Yoo opinion (TAB 21), the final version of which was dated March 14, 2003, was requested by Jim Haynes, and repeated much of what the first Bybee memo had said six months earlier.

Mr. Mora, who was one of the Working Group participants, said that soon after the Working Group was established, it became evident the group’s report “would contain profound mistakes in its legal analysis, in large measure because of its reliance on the flawed [Office of Legal Counsel] OLC memo.” In a meeting with Yoo, Mora asked whether the law allowed the President to go so far as to order torture. Yoo responded “Yes.”

The August 1, 2002, Bybee memo, again, had said that to violate the federal anti-torture statute, physical pain that resulted from an act would have to be “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” John Yoo’s March 14, 2003 memo stated that criminal laws, such as the federal anti-torture statute, would not even apply to certain military interrogations and that interrogators could not be prosecuted by the Justice Department for using interrogation methods that would otherwise violate the law. One CIA lawyer reportedly called the Bybee memo of August 2002 a “golden shield.” Combining it with the Yoo memo of March 2003, the Justice Department had attempted to create a shield to make it difficult or impossible to hold anyone accountable for their conduct.

Ultimately the Working Group report, finalized in April 2003, included a number of aggressive techniques that were legal according to John Yoo’s analysis. The full story of where the Working Group got those techniques remains classified. However, the list itself reflects the influence of SERE. Removal of clothing, prolonged standing, sleep deprivation, dietary manipulation, hooding, increasing anxiety through the use of a detainee’s aversions like dogs, and face and stomach slaps were all recommended. Top military lawyers and service General Counsels had objected to these techniques as the report was being drafted. Those who had objected, like Navy General Counsel Alberto Mora, were simply excluded from the process and not even told that a final report had been issued.

On April 16, 2003, less than two weeks after the Working Group completed its report, the Secretary of Defense authorized the use of 24 specific interrogation techniques for use at GTMO (TAB 23). While the authorization included such techniques as dietary manipulation, environmental manipulation, and sleep adjustment, it was silent on most of the techniques in the Working Group report.

However, the Secretary’s memo said that “If, in your view, you require additional interrogation techniques for a particular detainee, you should provide me, via the Chairman of the Joint Chiefs of Staff, a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee.”

Just a few months later, one such request arrived at the Pentagon. The detainee was Mohamedou Ould Slahi. While several documents relating to the Slahi interrogation plan remain classified, the recent report from the Department of Justice Inspector General includes newly declassified information suggesting the plan included hooding Slahi and subjecting him to sensory deprivation and “sleep adjustment.” The Inspector General’s report says that an FBI agent who saw a draft of the interrogation plan said it was similar to Khatani’s interrogation plan. Secretary Rumsfeld approved the Slahi plan on August 13, 2003.

Influence in Afghanistan

How did SERE techniques make their way to Afghanistan and Iraq? Shortly after the Secretary approved Jim Haynes’s recommendation on December 2, 2002, the techniques – and the fact the Secretary had authorized them – became known to interrogators in Afghanistan. A copy of the Secretary’s memo was sent from GTMO to Afghanistan. The Officer in Charge of the Intelligence Section at Bagram Airfield, in Afghanistan has said that in January 2003 she saw – in Afghanistan – a power point presentation listing the aggressive techniques authorized by the Secretary on December 2, 2002.

Documents and interviews also indicate that the influence of the Secretary’s approval of aggressive interrogation techniques survived their January 15, 2003 rescission.

On January 24, 2003 – nine days after Rumsfeld’s rescission – the Staff Judge Advocate for CJTF-180, CENTCOM’s conventional forces in Afghanistan, produced an “Interrogation techniques” memo. While that memo remains classified, the unclassified version of a report by Major General George Fay stated that the CJTF-180 memo “recommended removal of clothing – a technique that had been in the Secretary’s December 2 authorization” and discussed “exploiting the Arab fear of dogs” another technique approved by the Secretary on December 2, 2002.

From Afghanistan, the techniques made their way to Iraq. According to the Department of Defense Inspector General, at the beginning of the Iraq war, the special mission unit forces in Iraq “used a January 2003 Standard Operating Procedure (SOP) which had been developed for operations in Afghanistan.” According to the DoD IG, the Afghanistan SOP had been:

“influenced by the counterresistance memorandum that the Secretary of Defense approved on December 2, 2002 and incorporated techniques designed for detainees who were identified as unlawful combatants. Subsequent battlefield interrogation SOPs included techniques such as yelling, loud music, and light control, environmental manipulation, sleep deprivation/adjustment, stress positions, 20-hour interrogations, and controlled fear (muzzled dogs) . . .”

Special mission unit techniques eventually made their way into Standard Operating Procedures issued for all U.S. forces in Iraq. The Interrogation Officer in Charge at Abu Ghraib obtained a copy of the special mission unit interrogation policy and submitted it, virtually unchanged, to her chain of command as proposed policy for the conventional forces in Iraq, led at the time by Lieutenant General Ricardo Sanchez.

On September 14, 2003, Lieutenant General Sanchez issued the first Combined Joint Task Force 7 interrogation SOP. That SOP authorized interrogators in Iraq to use stress positions, environmental manipulation, sleep management, and military working dogs to exploit detainees’ fears in interrogations.

In the report of his investigation into Abu Ghraib, Major General George Fay said that interrogation techniques developed for GTMO became “confused” and were implemented at Abu Ghraib. Major General Fay said that removal of clothing, while not included in CJTF-7’s SOP, was “imported” to Abu Ghraib, could be “traced through Afghanistan and GTMO,” and contributed to an environment at Abu Ghraib that appeared “to condone depravity and degradation rather than humane treatment of detainees.” Following a September 9, 2004 Committee hearing on his report, I asked Major General Fay whether the policy approved by the Secretary of Defense on December 2, 2002 contributed to the use of aggressive interrogation techniques at Abu Ghraib, and he responded “Yes.”

JPRA Support to the Special Mission Unit Task Force In Iraq

Not only did SERE resistance training techniques make their way to Iraq, but instructors from the JPRA SERE school followed. The Department of Defense Inspector General reported that in September 2003, at the request of the Commander of the Special Mission Unit Task Force, JPRA deployed a team to Iraq to provide assistance to interrogation operations. During that trip, SERE instructors were authorized to participate in the interrogation of detainees in U.S. military custody. Accounts of that trip will be explored at a later time.

I will be sending a letter to the Department of Defense asking that those accounts and other documents relating to JPRA’s interrogation-related activities be declassified.

JFCOM Statement on JPRA Roles and Responsibilities

Major General James Soligan, the Chief of Staff of the U.S. Joint Forces Command (JFCOM), which is the Joint Personnel Recovery Agency’s higher headquarters (TAB 24), issued a memorandum referencing JPRA’s support to interrogation operations. Soligan wrote that:

“Recent requests from OSD and the Combatant Commands have solicited JPRA support based on knowledge and information gained through the debriefing of former U.S. POWs and detainees and their application to U.S. Strategic debriefing and interrogation techniques. These requests, which can be characterized as ‘offensive’ support, go beyond the chartered responsibilities of JPRA… The use of resistance to interrogation knowledge for ‘offensive’ purposes lies outside the roles and responsibilities of JPRA.”

Lieutenant General Robert Wagner, the Deputy Commander of JFCOM, has likewise said that (TAB 25) “Relative to interrogation capability, the expertise of JPRA lies in training personnel how to respond and resist interrogations – not in how to conduct interrogations… requests for JPRA ‘interrogation support’ were both inconsistent with the unit’s charter and might create conditions which tasked JPRA to engage in offensive operational activities outside of JPRA’s defensive mission.”

The Department of Defense Inspector General report completed in August 2006 said techniques in Iraq and Afghanistan had derived, in part from JPRA and SERE.

Closing

Many have questioned why we should care about the rights of detainees. On May 10, 2007, General David Petraeus answered that question in a letter to his troops. General Petraeus wrote:

“Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right. Adherence to our values distinguishes us from our enemy. This fight depends on securing the population, which must understand that we – not our enemies – occupy the moral high ground.
I fully appreciate the emotions that one experiences in Iraq. I also know firsthand the bonds between members of the ‘brotherhood of the close fight.’ Seeing a fellow trooper killed by a barbaric enemy can spark frustration, anger, and a desire for immediate revenge. As hard as it might be, however, we must not let these emotions lead us – or our comrades in arms – to commit hasty, illegal actions. In the event that we witness or hear of such actions, we must not let our bonds prevent us from speaking up. Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they also arc frequently neither useful nor necessary.

We are, indeed, warriors. We train to kill our enemies. We are engaged in combat, we must pursue the enemy relentlessly, and we must be violent at times. What sets us apart from our enemies in this fight, however, is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect. While we are warriors, we are also all human beings.”

Add comment June 22nd, 2008

Congress passes the “Abolish Free Communication Act”

The so-called “Democrats” who control Congress showed what they’re made of yesterday when they voted away fundamental civil liberties that took hundreds of years to win. The House passed the “Abolish Free Communication Act,” allowing virtually unlimited wiretapping, on the grounds of “national security.”. And they guaranteed that Presidents and corporations who break the law on a really grand scale will get total immunity.

As the New York Times describes the bill:

The proposal — particularly the immunity provision — represents a major victory for the White House after months of dispute. “I think the White House got a better deal than they even they had hoped to get,” said Senator Christopher Bond, the Missouri Republican who led the negotiations.

The funniest thing about the new bill were the statements of its Democratic enablers of their grand victory for the rule of law. They wrote in the bill that the President must obey the law. Of course, that principle has been around since the Constitution. Yet this bill gives a President who has flagrantly broken the law for years complete immunity for having done so. So the effect is to tell future Presidents that, if they break the law, they should do so on a truly grand scale, literally millions of times. Then they will get immunity instead of impeachment and life in prison. And their illegal acts will in turn be legalized by their enablers.

Barak Obama also showed his priorities by announcing he’ll reluctantly vote for this shredding of the Constitution, though he is oh so disappointed about it. After all, it’s a “compromise” that just happens to give Bush everything he wanted, and more. But that’s bipartisanship for you.

Jack Balkin at Balkinization explains why Obama supports the bill:

Barrack Obama plans to be the next President of the United States. Once he becomes President, he will be in the same position as George W. Bush: he wants all the power he needs to protect the country. Moreover, he will be the beneficiary of a Democratic-controlled Congress, and he wants to get some important legislation passed in his first two years in office.

Given these facts, why in the world would Obama oppose the current FISA compromise bill? If it’s done on Bush’s watch, he doesn’t have to worry about wasting political capital on it in the next year. Perhaps it gives a bit too much power to the executive. But he plans to be the executive, and he can institute internal checks within the Executive Branch that can keep it from violating civil liberties as he understands them. And not to put too fine a point on it, once he becomes president, he will likely see civil liberties issues from a different perspective anyway.

So, in short, from Obama’s perspective, what’s not to like?…

So, let’s sum up: Congress gives the President new powers that Obama can use. Great. (This is change we can believe in). Obama doesn’t have to expend any political capital to get these new powers. Also great. Finally, Obama can score points with his base by criticizing the retroactive immunity provisions, which is less important to him going forward than the new powers. Just dandy.

It should now be clear why the Obama campaign has taken the position it has taken. And given what I have just said, Obama’s supporters should be pressing him less on the immunity provisions and more on the first part of the bill which completely rewrites FISA. Because, if he becomes president, he’ll be the one applying and enforcing its provisions.

There is a lesson here that preserving rights never depends upon politicians, be they boring Congressman or Knights in Shining Armour. They know only money an political expediency. And expediency means serving the powerful. Rights can only be protected by a public willing and able to fight for them, to wrest them from the powerful. Until we have such a mobilized and empowered public we will have few rights we can be assured of preserving.

For details on what Congress did, read Glenn Greenwald’s latest in Salon: George Bush’s latest powers, courtesy of the Democratic Congress:

That’s the “compromise” Steny Hoyer negotiated and which he is now — according to very credible reports — pressuring every member of the Democratic caucus to support. It’s full-scale, unconditional amnesty with no inquiry into whether anyone broke the law. In the U.S. now, thanks to the Democratic Congress, we’ll have a new law based on the premise that the President has the power to order private actors to break the law, and when he issues such an order, the private actors will be protected from liability of any kind on the ground that the Leader told them to do it — the very theory that the Nuremberg Trial rejected….

I’d like to underscore the fact that in 2006, when the Congress was controlled by Bill Frist and Denny Hastert, the administration tried to get a bill passed legalizing warrantless eavesdropping and telecom amnesty, but was unable. They had to wait until the Congress was controlled by Steny Hoyer, Nancy Pelosi and Harry Reid to accomplish that.

And isn’t it so odd how this “compromise” — just like the Military Commissions Act, the Protect America Act and all the other great “compromises” from the Bush era which precede this one — is producing extreme indignation only from those who believe in civil liberties and the rule of law, while GOP Bush followers seem perfectly content and happy with it? I wonder if that suggests that what the Democratic leadership is supporting isn’t really a “compromise” at all.

To call this bill a capitulation is to give it greater credit than it deserves. See the anti-Steny Hoyer ad Greenwald and colleagues have prepared.

Add comment June 21st, 2008

Bill to ban health providers aiding abusive interrogations move in New York

In New York Assemblymember Richard N. Gottfried is sponsoring a bill to prohibit state licensed health providers from aiding torture or participating in interrogations. As Gottfried explains:

“Under the bill, health care professionals would be required to provide proper care and treatment to prisoners as best they can under the circumstances. Any evaluation or treatment they provide must be in the interest of the prisoner. Military or other governmental orders would not shield a person from the loss of their professional license in New York.” [emphasis added.]

The passage of this bill would constitute an enormous step toward restoring the health professions to their proper role of promoting human welfare.

Here is a Press Release from Assemblymember Gottfried about the bill:News from

Assemblymember
Richard N. Gottfried
75th Assembly District

Anti-Torture Bill Moves in Albany

June 10, 2008

Physicians and other health care professionals licensed by New York would be prohibited from participating in torture or improper treatment of a prisoner under a bill approved unanimously by the Assembly Higher Education Committee today.

“It is shocking that our government engages in torture and improper treatment of prisoners,” said the bill’s author, Assembly Health Committee chair Richard N. Gottfried. “It is even more shocking to see reports that physicians and other health care professionals are cooperating in it.”

In February 2008, the Washington Post reported on U.S. Attorney General Robert Mukasey’s argument that waterboarding was not torture because it was monitored and limited by someone with medical training. In 2005, the New England Journal of Medicine reported on violations of medical ethics against medical personnel at Guantanamo Bay for sharing prisoner’s health information with interrogators.

The bill has 27 co-sponsors in both parties and is the first of its kind in the nation, Gottfried said.

“It is never justifiable to torture another human being. It is wrong for a health care professional to use his or her education and training to participate in or facilitate torture or improper treatment of a prisoner,” said Gottfried. “I don’t think any New York patient would want to be treated by a health care professional who would do that to another human being.”

The bill would apply to conduct by any New York-licensed health care professional wherever it happens, and regardless of whether it is committed in connection with any government. The bill would follow international treaties and standards and professional standards by establishing the proper conduct of health care professionals in relation to the treatment of prisoners, Gottfried said.

“New York law ordinarily cannot reach beyond our borders, but the state can limit the professional behavior of a person to whom it grants a license,” Gottfried said. “We often revoke a license for out-of-state misconduct.”

Under the bill, health care professionals would be required to provide proper care and treatment to prisoners as best they can under the circumstances. Any evaluation or treatment they provide must be in the interest of the prisoner. Military or other governmental orders would not shield a person from the loss of their professional license in New York.

The bill is based on the UN Convention Against Torture, adopted in 1982, and the World Medical Association Declaration of Tokyo, adopted in 1975.

If the bill (A.9891) is approved by the Higher Education Committee, which has jurisdiction over professional licensure, it will go to the Assembly Codes Committee, which will review the penalty provisions of the bill.

Prohibiting health professionals from cooperating with torture is advocated by the UN General Assembly, the International Committee of the Red Cross, the World Medical Association, the American Medical Association, the American College of Physicians, the American Psychiatric Association, the American Psychological Association, and the National Association of Social Workers, among others. The bill was developed with the assistance of Physicians for Human Rights, and the New York Campaign Against Torture.

New York readers, please lobby your Assembly members to support this bill!

2 comments June 20th, 2008

Deaths in wars often greater than prior report: New study

As regular readers know, I have followed, and even been involved in, debates over the number of dead in the Iraq war and occupation. Estimates have ranged from the Iraq Body Count’s around 90,000 “documented civilian deaths” to the ORB survey’s estimate of over one million as of last August. While it is clear that the IBC estimate, based as it is on media reports, is an undercount, and likely a radical undercount, the magnitude of the true figure has remained a subject of controversy.

Reuters reports on a new study of prior wars which finds that mortality counts are almost always underestimates. While the new study did not examine Iraq, it lend support to the position that the true figures are in the several hundreds of thousands, and could easily be higher.

Parenthetically, the new study estimates that 3.8 million people died in the Vietnam war, much higher than previous estimates, reminding us yet again of the horrors of imperial wars.

Here is the Reuters article. [The full study can be accessed here.]:

Deaths in Vietnam, other wars undercounted - study

By Will Dunham

WASHINGTON (Reuters) - New estimates of war deaths in 13 nations including Vietnam, Ethiopia and Bangladesh show that previous counts vastly understated the lives lost to war in the past half century, researchers said Thursday.

The new estimates relied on data from nationally representative population surveys done by the U.N. World Health Organization in these countries earlier this decade to calculate death tolls in wars waged from 1955 to 2002.

In most of the countries, this method pointed to much higher loss of life than broadly cited media estimates of the various war death counts had shown, the researchers said.

For example, the method indicated 3.8 million Vietnamese died in the protracted fighting in Vietnam, mostly from 1955 to 1975, compared to previous estimates cited by the researchers of 2.1 million.

Christopher Murray of the University of Washington said the findings, published in the British Medical Journal, suggest standard ways of tracking war deaths using media, eyewitness and combatant accounts tend to underestimate deaths, particularly in smaller wars.

Murray, who heads the university’s Institute for Health Metrics and Evaluation, and colleagues designed a method of figuring violent war-related deaths using data on siblings of respondents in large household surveys conducted later in peacetime.

Random samples of people in the 13 countries were asked about their brothers and sisters, including whether they had died of wartime injuries. The researchers then extrapolated the data to come up with national death toll estimates.

In Ethiopia, the method indicated there have been 579,000 wartime deaths, higher than the previous estimate cited in the study of 275,000. In Bangladesh, the toll was put at 269,000, up from the previous estimate of 58,000.

Country by country, on average, the old estimates were about three times lower than the new ones.

In the 13 countries combined, the new method figured there were 5.4 million deaths from 1955 to 2002, topping the previous combined estimates of 2.8 million, the researchers said.

In Bosnia, the researchers figured 176,000 war deaths, up from the 55,000 previous estimate. In Sri Lanka, the new estimate was 215,000 deaths, compared the previous estimate of 61,000.

In Zimbabwe, the new estimate was 141,000 war deaths, compared to the previous estimate they cited of 28,000.

Other countries examined in the study were Myanmar (Burma), Georgia, Guatemala, Laos, Namibia, the Philippines and the Democratic Republic of Congo.

The study did not look at war dead in Iraq or Afghanistan.

Ziad Obermeyer of Brigham and Women’s Hospital and Massachusetts General Hospital in Boston, another of the researchers, said accurate estimates of death tolls during wartime are extremely difficult to make.

He also said the findings undercut the idea that the advent of modern weapons like “smart bombs” had made war less lethal. (Editing by Todd Eastham)

Add comment June 20th, 2008

The latest torture documents: SERE psychologists and US torture

Yesterday the Senate Armed Services Committee [SASC] conducted its hearings on the origins of torture practices at Guantanamo. the hearings revealed an organized campaign to apply the military’s Survival, Evasion, Resistance, and Escape [SERE] tactics to GTMO detainees. Perhaps the best account of the hearings is by Spencer Ackerman in the Washington Independent.

In addition to the hearings SASC released a 63 page set of documents. While some of these had been publicly available for years, others were new. Yesterday’s testimony, and these documents, confirm once ad for all that the US torture policies were modeled on SERE tactics, as many of us have been arguing for years. And at the core of SERE are psychologists. The testimony and documents also established once and for all the centrality of psychologists in the development of the US torture regime. In fact, one of yesterday’s witnesses was a SERE psychologist.

The charade of the American Psychological Association [APA], pretending that psychologists were preventing abuse, not designing and promoting it, is collapsing. Any APA official who continues that line is an apologist for US torture plain and simple. The evidence that psychologists were central participants in designing, implementing, standardizing, and training US torture is now clear and incontrovertible.

As Gen. Taguba wrote in his preface to the new Physicians for Human Rights report — Broken Laws: Broken Lives: Medical Evidence of Torture by US Personnel and Its Impact:

After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.

The General also says, apropos psychologists and other health providers:

[T]he healing professions, including physicians and psychologists, became complicit in the willful infliction of harm against those the Hippocratic Oath demands they protect.

It is now time for APA leaders to acknowledge that their members have been complicit in the “willful infliction of harm” and to put a stop to it.

This morning, Phillip Carter blogs at the Washington Post on some of the contents of these documents:

The Genesis of Torture

By Phillip Carter

Yesterday, the Senate Armed Services Committee released a 63-page set of documents that illuminates how the Pentagon developed, selected and approved its list of coercive interrogation techniques for Guantanamo Bay.

As Joby Warrick reports in today’s Post, the documents clarify the role that the CIA (and senior government officials such as DoD General Counsel William “Jim” Haynes) played. “If the detainee dies, you’re doing it wrong,” CIA lawyer Jonathan Friedman proclaimed in a working group meeting that led to the development of this DoD memo on approved interrogation techniques.

Even more significant, the documents show how the military’s Joint Personnel Recovery Agency (”JPRA”) helped develop interrogation techniques, borrowing extensively from the military’s Survival, Evasion, Resistance and Escape (”SERE”) courses. (Mark Benjamin provides a detailed timeline in Salon for precisely how this unfolded.) These techniques — which include waterboarding, confinement to small boxes, and stress positions, among others — were developed to mimic the interrogation practices of our worst enemies, such as the North Koreans and the North Vietnamese. It speaks volumes that they were adopted by the U.S. at Gitmo.

Some of the things that struck me while reading the documents last night:

Tabs 2 and 3 confirm Jane Mayer’s reporting on the use of SERE practices as an interrogation template — both at Gitmo and elsewhere by the CIA. There wasn’t a lot of hard evidence to support this narrative though, and many chalked up the similarities between the Gitmo and SERE techniques to coincidence or chance. For instance, in Philippe Sands’s new book, retired JAG officer Diane Beaver and retired Maj. Gen. Michael Dunlavey recount a somewhat hazy process by which tactics made their way into memo form. Both hint that personnel from the CIA and other agencies were placed at Gitmo to seed ideas. The memos released yesterday, however, indicate that there was a much more deliberate effort to share the SERE/JPRA community’s tactics, techniques and procedures (TTPs in military parlance) with the interrogation community at Gitmo. (Tab 16 shows this link too.)

Tab 4 discusses the military’s psychological assessment of personnel during SERE training. Taken by itself, this is a sign that the military cares about its personnel and wants to avoid “crushing the spirit of the students.” But in the interrogation context, this memo reads uncomfortably like Mengele or Cold War-era research on torture.

In the October 2002 meeting described in Tab 7, FBI agents report talk of “wet towel” treatment during interrogations, despite the fact that waterboarding was explicitly not authorized by Haynes and Rumsfeld at that