Jeffrey Sachs is one of the strong economist critics of the Geithner-Summers-Obama bank bailout plan. In a new article he argues that the plan is worse than he believed when it first came out. As designed, he believes, it can be gamed by the banks, potentially stealing up to $1 trillion from us.
I don’t know if Sachs is correct. He seems not completely certain. But we sure better be sure before the plan gets implemented. We cannot afford another “Who would have guessed they would do that?” disater.
In other bailout news, the Congressionally-mandated oversight panel also thinks the bailout plan is a disaster, according to a new report:
he Congressional Oversight Panel, in a report released yesterday, also said the Treasury may be relying on too rosy an economic scenario to guide its $700 billion bailout, and declared that the success of the program after six months is “mixed.” Three of the group’s members disagreed with at least some of the findings.
“All successful efforts to address bank crises have involved the combination of moving aside failed management and getting control of the process of valuing bank balance sheets,” the panel, headed by Harvard Law School Professor Elizabeth Warren, said in its report.
And Sam Stein at Huffington Post reports that the Geithner Bank Plan Faces New Wave Of Criticism.
Here is the Sachs article:
The Geithner-Summers Plan is Even Worse Than We Thought
By Jeffrey Sachs
Two weeks ago, I posted an article showing how the Geithner-Summers banking plan could potentially and unnecessarily transfer hundreds of billions of dollars of wealth from taxpayers to banks. The same basic arithmetic was later described by Joseph Stiglitz in the New York Times (April 1) and by Peyton Young in the Financial Times (April 1). In fact, the situation is even potentially more disastrous than we wrote. Insiders can easily game the system created by Geithner and Summers to cost up to a trillion dollars or more to the taxpayers.
Here’s how. Consider a toxic asset held by Citibank with a face value of $1 million, but with zero probability of any payout and therefore with a zero market value. An outside bidder would not pay anything for such an asset. All of the previous articles consider the case of true outside bidders.
Suppose, however, that Citibank itself sets up a Citibank Public-Private Investment Fund (CPPIF) under the Geithner-Summers plan. The CPPIF will bid the full face value of $1 million for the worthless asset, because it can borrow $850K from the FDIC, and get $75K from the Treasury, to make the purchase! Citibank will only have to put in $75K of the total.
Citibank thereby receives $1 million for the worthless asset, while the CPPIF ends up with an utterly worthless asset against $850K in debt to the FDIC. The CPPIF therefore quietly declares bankruptcy, while Citibank walks away with a cool $1 million. Citibank’s net profit on the transaction is $925K (remember that the bank invested $75K in the CPPIF) and the taxpayers lose $925K. Since the total of toxic assets in the banking system exceeds $1 trillion, and perhaps reaches $2-3 trillion, the amount of potential rip-off in the Geithner-Summers plan is unconscionably large.
The earlier criticisms of the Geithner-Summers plan showed that even outside bidders generally have the incentive to bid far too much for the toxic assets, since they too get a free ride from the government loans. But once we acknowledge the insider-bidding route, the potential to game the plan at the cost of the taxpayers becomes extraordinary. And the gaming of the system doesn’t have to be as crude as Citibank setting up its own CPPIF. There are lots of ways that it can do this indirectly, for example, buying assets of other banks which in turn buy Citi’s assets. Or other stakeholders in Citi, such as groups of bondholders and shareholders, could do the same.
Several news stories suggest some grounding for these fears. Both Business Week and the Financial Times report that the banks themselves might be invited to bid for the toxic assets, which would seem to set up just the scam outline above. What is incredible is that lack of the most minimal transparency so far about the rules, risks, and procedures of this trillion-dollar plan. Also incredible is the apparent lack of any oversight by Congress, reinforcing the sense that the fix is in or that at best we are all sitting ducks.
The sad part of all this is that there are now several much better ideas circulating among experts, but none of these seems to get the time of day from the Treasury. The best ideas are forms of corporate reorganization, in which a bank weighed down with toxic assets is divided into two banks — a “good bank” and a “bad bank” — with the bad bank left holding the toxic assets and the long-term debts, while owning the equity of the good bank. If the bad assets pay off better than is now feared, the bondholders get repaid and the current bank shares keep their value. If the bad assets in fact default heavily as is now expected, the bondholders and shareholders lose their investments. The key point of the good bank — bad bank plans is an orderly process to restore healthy banking functions (in the good bank) while divvying up the losses in a fair way among the banks’ existing claimants. The taxpayer is not needed for that, except to cover the insured part of the banks’ existing liabilities, specifically the banks’ deposits and perhaps other short-term liabilities that are key to financial market liquidity.
Cynics believe that the Geithner-Summers Plan is exactly what it seems: a naked grab of taxpayer money for Wall Street interests. Geithner and Summers argue that it’s the least bad approach to a messy situation, in which we need to restore banking functions but don’t have any perfect ways to do that. If they are serious about their justification, let them come forward to confront their critics and to explain to the American people why the other proposals are not being pursued.
Let them explain the hidden and not-so-hidden risks to the American taxpayer of the plan that they have put forward. Let them explain why they are so intent on saving the banks’ bondholders, even the long-term unsecured creditors who clearly knew they were taking market risks in buying Citibank bonds. Let them work with their critics to fashion a less risky and less costly plan. So far Geithner and Summers tell us that their plan is the only option, but without a word of further explanation as to why.
April 8th, 2009
The Center for Constitutional Rights and other human rights groups last week filed a protest with the UN Special Rapporteurs regarding the role that the NATO Supreme Commander played as the authority responsible for the unethical and brutal force feeding of Guantanamo detainees. Here is their statement:
Rights Groups Submit Allegations Against NATO Supreme Commander General Craddock for Force Feeding in Guantanamo in 2004-2006
CONTACT: press@ccrjustice.org
New York, Paris, Berlin, April 3rd 2009 – Yesterday, human rights groups submitted a formal communication to United Nations Special Rapporteurs naming U.S. Army General Bantz John Craddock, NATO Supreme Allied Commander Europe, responsible for the unlawful and unethical force-feeding of detainees on hunger strike at the Guantanamo Bay prison. President Obama recently nominated a successor to Craddock who is awaiting confirmation. The Center for Constitutional Rights (CCR), the International Federation for Human Rights (FIDH), the European Center for Constitutional and Human Rights (ECCHR), Appeal for Justice, and the National Litigation Project, Allard K. Lowenstein International Human Rights Clinic of Yale Law School (NLP), submitted the communication to the United Nations Special Rapporteurs on Torture, on the Right to Physical and Mental Health, and on the Protection of Human Rights while Countering Terrorism. They name General Craddock in his former capacity as U.S. Southern Command (USSOUTHCOM) Commander from November 2004 until October 2006.
During his time as USSOUTHCOM, General Craddock oversaw the Guantanamo detention center where torture, prolonged arbitrary detention, and other abuses occurred. In particular, General Craddock approved and had command responsibility over the unlawful and unethical force-feeding of detainees on hunger strike.
The complaint was submitted on the eve of NATO’s 60th Anniversary Summit, following a conference organized by CCR, FIDH, and ECCHR on the nature and significance of NATO’s commitment to international human rights. CCR, FIDH, and ECCHR find it deeply problematic that NATO has at the head of its military command a man responsible for world-decried human rights violations that took place under his watch before he took the NATO post. The groups say it is illustrative of NATO’s failure to break from unlawful practices and policies implemented in the name of the U.S.-led “War on Terror.”
Guantanamo hunger strikers protesting their abusive detention conditions and lack of rights were and continue to be brutally force-fed through abnormally large nasal tubes while strapped into a six-point restraint chair. In 2006, General Craddock suggested that the restraint chair method served as an “effective deterrent” to hunger striking, and went so far as to joke that at least hunger strikers got to choose the flavor of the lozenges used to soothe irritation caused by the feeding tubes. (Source: Adam Zagorin, At Guantanamo, Dying is not Permitted, Time Magazine, June 30, 2006)
The brutal force-feeding of Guantánamo detainees amounts to torture, or at the very least, cruel, inhuman, or degrading treatment under international human rights law. In 2007, the European Court of Human Rights found that “repeated force-feeding, not prompted by valid medical reasons but rather with the aim of forcing the applicant to stop his protest, and performed in a manner which unnecessarily exposed him to great physical pain and humiliation, can only be considered as torture.” (Ciorap v. Moldova)
CCR, FIDH, ECCHR, Appeal for Justice, and NLP ask the Special Rapporteurs “to demand that the U.S. Department of Justice immediately open an independent criminal investigation into General Craddock’s responsibility for the crimes alleged.” Because “the Obama Administration continues the unlawful and unethical force-feeding practices of the Bush administration against more than 50 men who peacefully protest their confinement and detention conditions using the only means available to them – their bodies”, authors of the communication also demand that the Special Rapporteurs “issue an urgent appeal to the Obama administration, requesting that it bring its hunger striker policies into legal and ethical compliance by instituting [a series of] urgent measures.”
While General Craddock’s replacement has been announced by the Obama administration, the groups note that the commander replacing him, U.S. Admiral James Stavridis, is the current USSOUTHCOM Commander that replaced Craddock in 2006. In that capacity, he has authority over Guantanamo and is responsible for having allowed and continuing to allow this unlawful force-feeding to take place.
CCR has led the legal battle over Guantanamo for the last six years – sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA “ghost detainee” there. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. In addition, CCR has been working to resettle the approximately 60 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.
Attached Files
April 8th, 2009
As a health researcher, I am a strong advocate of increasing the research-base guiding our clinical efforts. Among other things, I help develop systems to assess the outcomes of psychosocial interventions in order to use the resultant knowledge to improve the quality of treatments that are delivered to our clients. Yet, as a clinician, I am a skeptic regarding the quality of our current knowledge and its ability to appropriately guide our practice. Do we really know enough? And what about the large element of clinical expertise that cannot, with our current tools anyway, be quantified.
This is a tension I have lived with and explored throughout my professional career. I even co-edited a book — Reconciling Empirical Knowledge and Clinical Experience: The Art and Science of Psychotherapy — on the interface between research and clinical practice.
I have just been sent this new Wall Street Journal op-ed by Jerome Groopman and Pamela Hartbrand that makes the case that rigid guidelines can be wrong, and even dangerous. Groopman and Hartbrand argue that these guidelines, based as they are on what is believed to be best practices, can, in the current state of our knowledge, easily turn out to be suboptimal or even harmful. As one of the examples they give illustrates:
One key quality measure in the ICU became the level of blood sugar in critically ill patients. Expert panels reviewed data on whether ICU patients should have insulin therapy adjusted to tightly control their blood sugar, keeping it within the normal range, or whether a more flexible approach, allowing some elevation of sugar, was permissible. Expert consensus endorsed tight control, and this approach was embedded in guidelines from the American Diabetes Association. The Joint Commission on Accreditation of Healthcare Organizations, which generates report cards on hospitals, and governmental and private insurers that pay for care, adopted as a suggested quality metric this tight control of blood sugar.
A colleague who works in an ICU in a medical center in our state told us how his care of the critically ill is closely monitored. If his patients have blood sugars that rise above the metric, he must attend what he calls “re-education sessions” where he is pointedly lectured on the need to adhere to the rule. If he does not strictly comply, his hospital will be downgraded on its quality rating and risks financial loss. His status on the faculty is also at risk should he be seen as delivering low-quality care.
But this coercive approach was turned on its head last month when the New England Journal of Medicine published a randomized study, by the Australian and New Zealand Intensive Care Society Clinical Trials Group and the Canadian Critical Care Trials Group, of more than 6,000 critically ill patients in the ICU. Half of the patients received insulin to tightly maintain their sugar in the normal range, and the other half were on a more flexible protocol, allowing higher sugar levels. More patients died in the tightly regulated group than those cared for with the flexible protocol.
This example illustrates both the difficulty with rigid guidelines and the need to be able to use judgment and flexibility in treating patients.
I concur with their concerns. We are far from knowing with any degree of certainty the correctness of most of our clinical guidlines. Yet I also believe that clinical care independent of research is increasingly problematic. While Groopman and Hartbrand are right about the need for clinical flexibility, the ignore the opposite problem whereby the treatment a patient receives depends in an arbitrary manner of which doctor or hospital they go to, or where they live. Thus, enormous geographic variability has been found for certain surgical procedures with no evidence that the variability is based upon anything but custom.
Thus, I believe that health care systems need to measure their outcomes and use the resultant data to improve care. Yet, they also need to avoid the rigid guideline problem.
One way of reconciling these conflicting impulses is to implement outcomes monitoring in a quality improvement framework.That is, the goal is to identify practices and health providers who have superior outcomes and find how to tap their knowledge and expertise and communicate it to those whose outcomes are inferior. A successful quality improvement framework is based upon the assumption that the vast majority of healthcare workers want to deliver quality care. Thus, they will be open data-driven quality improvement efforts, as long as these are conducted in a collaboarative and respectful manner, fully valuing the expertise of healthcare workers while providing them with the information and tools to improve their efforts.
One important aspect of such a quality improvement perspective is that healthcare workers, doctors and others, should be part of team that selects outcome measures and quality improvement implementation procedures. Especially in “fuizzy” areas like mental health, the ability to control the outcomes that are measured is a powerful influence on the nature of treatment that is delivered.
To take one example with which I am intimately familiar, if substance abuse treatment outcomes included measures of such lifetsyle factors as having housing and jobs, as well as improved mental health, then these life domains are likely to be included in treatment planning. However, if substance abuse outcomes only include measurements of substance use, then large aspects of substance abusing clients’ lives will ultimately be given short shrift when planning and conducting treatment.
By the way, similar issues arise in a number of other areas than healthcare. Thus, much of the current efforts to measure “outcomes” in education could similarly benefit from a quality improvement perspective. If teachers and parents, not to mention students, were more integrated into the vast apparatus now assessing educational outcomes through standardized testing, there would likely be less grousing among teachers, with its acompanying drop in morale and loss of experienced teachers to early retirement.
Here is the complete Groopman and Hartbrand article:
Why ‘Quality’ Care Is Dangerous
The growing number of rigid protocols meant to guide doctors have perverse consequences
By Jerome Groopman and Pamela Hartbrand
The Obama administration is working with Congress to mandate that all Medicare payments be tied to “quality metrics.” But an analysis of this drive for better health care reveals a fundamental flaw in how quality is defined and metrics applied. In too many cases, the quality measures have been hastily adopted, only to be proven wrong and even potentially dangerous to patients.
Health-policy planners define quality as clinical practice that conforms to consensus guidelines written by experts. The guidelines present specific metrics for physicians to meet, thus “quality metrics.” Since 2003, the federal government has piloted Medicare projects at more than 260 hospitals to reward physicians and institutions that meet quality metrics. The program is called “pay-for-performance.” Many private insurers are following suit with similar incentive programs.
In Massachusetts, there are not only carrots but also sticks; physicians who fail to comply with quality guidelines from certain state-based insurers are publicly discredited and their patients required to pay up to three times as much out of pocket to see them. Unfortunately, many states are considering the Massachusetts model for their local insurance.
How did we get here? Initially, the quality improvement initiatives focused on patient safety and public-health measures. The hospital was seen as a large factory where systems needed to be standardized to prevent avoidable errors. A shocking degree of sloppiness existed with respect to hand washing, for example, and this largely has been remedied with implementation of standardized protocols. Similarly, the risk of infection when inserting an intravenous catheter has fallen sharply since doctors and nurses now abide by guidelines. Buoyed by these successes, governmental and private insurance regulators now have overreached. They’ve turned clinical guidelines for complex diseases into iron-clad rules, to deleterious effect.
One key quality measure in the ICU became the level of blood sugar in critically ill patients. Expert panels reviewed data on whether ICU patients should have insulin therapy adjusted to tightly control their blood sugar, keeping it within the normal range, or whether a more flexible approach, allowing some elevation of sugar, was permissible. Expert consensus endorsed tight control, and this approach was embedded in guidelines from the American Diabetes Association. The Joint Commission on Accreditation of Healthcare Organizations, which generates report cards on hospitals, and governmental and private insurers that pay for care, adopted as a suggested quality metric this tight control of blood sugar.
A colleague who works in an ICU in a medical center in our state told us how his care of the critically ill is closely monitored. If his patients have blood sugars that rise above the metric, he must attend what he calls “re-education sessions” where he is pointedly lectured on the need to adhere to the rule. If he does not strictly comply, his hospital will be downgraded on its quality rating and risks financial loss. His status on the faculty is also at risk should he be seen as delivering low-quality care.
But this coercive approach was turned on its head last month when the New England Journal of Medicine published a randomized study, by the Australian and New Zealand Intensive Care Society Clinical Trials Group and the Canadian Critical Care Trials Group, of more than 6,000 critically ill patients in the ICU. Half of the patients received insulin to tightly maintain their sugar in the normal range, and the other half were on a more flexible protocol, allowing higher sugar levels. More patients died in the tightly regulated group than those cared for with the flexible protocol.
Similarly, maintaining normal blood sugar in ambulatory diabetics with vascular problems has been a key quality metric in assessing physician performance. Yet largely due to two extensive studies published in the June 2008 issue of the New England Journal of Medicine, this is now in serious doubt. Indeed, in one study of more than 10,000 ambulatory diabetics with cardiovascular diseases conducted by a group of Canadian and American researchers (the “ACCORD” study) so many diabetics died in the group where sugar was tightly regulated that the researchers discontinued the trial 17 months before its scheduled end.
And just last month, another clinical trial contradicted the expert consensus guidelines that patients with kidney failure on dialysis should be given statin drugs to prevent heart attack and stroke.
These and other recent examples show why rigid and punitive rules to broadly standardize care for all patients often break down. Human beings are not uniform in their biology. A disease with many effects on multiple organs, like diabetes, acts differently in different people. Medicine is an imperfect science, and its study is also imperfect. Information evolves and changes. Rather than rigidity, flexibility is appropriate in applying evidence from clinical trials. To that end, a good doctor exercises sound clinical judgment by consulting expert guidelines and assessing ongoing research, but then decides what is quality care for the individual patient. And what is best sometimes deviates from the norms.
Yet too often quality metrics coerce doctors into rigid and ill-advised procedures. Orwell could have written about how the word “quality” became zealously defined by regulators, and then redefined with each change in consensus guidelines. And Kafka could detail the recent experience of a pediatrician featured in Vital Signs, the member publication of the Massachusetts Medical Society. Out of the blue, according to the article, Dr. Ann T. Nutt received a letter in February from the Massachusetts Group Insurance Commission on Clinical Performance Improvement informing her that she was no longer ranked as Tier 1 but had fallen to Tier 3. (Massachusetts and some private insurers use a three-tier ranking system to incentivize high-quality care.) She contacted the regulators and insisted that she be given details to explain her fall in rating.
After much effort, she discovered that in 127 opportunities to comply with quality metrics, she had met the standards 115 times. But the regulators refused to provide the names of patients who allegedly had received low quality care, so she had no way to assess their judgment for herself. The pediatrician fought back and ultimately learned which guidelines she had failed to follow. Despite her cogent rebuttal, the regulator denied the appeal and the doctor is still ranked as Tier 3. She continues to battle the state.
Doubts about the relevance of quality metrics to clinical reality are even emerging from the federal pilot programs launched in 2003. An analysis of Medicare pay-for-performance for hip and knee replacement by orthopedic surgeons at 260 hospitals in 38 states published in the most recent March/April issue of Health Affairs showed that conforming to or deviating from expert quality metrics had no relationship to the actual complications or clinical outcomes of the patients. Similarly, a study led by UCLA researchers of over 5,000 patients at 91 hospitals published in 2007 in the Journal of the American Medical Association found that the application of most federal quality process measures did not change mortality from heart failure.
State pay-for-performance programs also provide disturbing data on the unintended consequences of coercive regulation. Another report in the most recent Health Affairs evaluating some 35,000 physicians caring for 6.2 million patients in California revealed that doctors dropped noncompliant patients, or refused to treat people with complicated illnesses involving many organs, since their outcomes would make their statistics look bad. And research by the Brigham and Women’s Hospital published last month in the Journal of the American College of Cardiology indicates that report cards may be pushing Massachusetts cardiologists to deny lifesaving procedures on very sick heart patients out of fear of receiving a low grade if the outcome is poor.
Dr. David Sackett, a pioneer of “evidence-based medicine,” where results from clinical trials rather than anecdotes are used to guide physician practice, famously said, “Half of what you’ll learn in medical school will be shown to be either dead wrong or out of date within five years of your graduation; the trouble is that nobody can tell you which half — so the most important thing to learn is how to learn on your own.” Science depends upon such a sentiment, and honors the doubter and iconoclast who overturns false paradigms.
Before a surgeon begins an operation, he must stop and call a “time-out” to verify that he has all the correct information and instruments to safely proceed. We need a national time-out in the rush to mandate what policy makers term quality care to prevent doing more harm than good.
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Dr. Groopman, a staff writer for the New Yorker, and Dr. Hartzband are on the staff of Beth Israel Deaconess Medical Center in Boston and on the faculty of Harvard Medical School.
April 8th, 2009
Recently I posted an open letter: Progressive Jews say calling for Israeli boycott not antisemitic. The organizers of the letter have issued the following press release along with the following information for those Jews still wishing to sign:
The site is www.gopetition.com/petitions/dierkes-letter.html It’s just been set up so there are very few names at the moment, but please feel free to pass on this link.
The press release:
For immediate release
Contacts:
Stephen R. Shalom, stephenrshalom@gmail.com
Racheli Gai, racheli@sonoracohousing.com
Jewish Peace Activists Defend German Critic of Israel
Calling for a Boycott of Israel for its Treatment of Palestinians is not Anti-Semitic
Montclair, NJ, April 8, 2009 — More than 370 Jewish peace activists from around the world signed a statement defending German politician Hermann Dierkes against charges of anti-Semitism.
Dierkes, a left-wing politician with a distinguished record of fighting for social justice, called for a boycott of Israeli goods as a means of putting pressure on the Israeli government to end its oppression of Palestinians. For this he has been subjected to vicious denunciations for anti-Semitism.
The signers of the statement — from Israel, Germany, the United States, and several other countries — expressed their objection to those “who use charges of anti-Semitism to attempt to squelch legitimate dissent.”
The signers have differing views on the wisdom and efficacy of a general boycott, some favoring it, some preferring a more selective boycott focused on the occupation, but all agree that a call for a boycott of Israel has nothing in common with the Nazi policy of “Don’t buy from Jews.”
“It is no more anti-Semitic to boycott Israel to end the occupation,” the statement declared, “than it was anti-white to boycott South Africa to end apartheid.”
Among the U.S. signatories are Phyllis BENNIS; Stephen Eric BRONNER; Leslie CAGAN; Noam CHOMSKY; Daniel ELLSBERG, Melanie KAYE/KANTROWITZ; Joanne LANDY; Zachary LOCKMAN; Frances Fox PIVEN; Adrienne RICH, Matthew ROTHSCHILD; Sami SHALOM CHETRIT; Jerome SLATER; and Howard ZINN.
Among the foreign signers are Tikva HONIG-PARNASS, Adam KELLER, Lea TSEMEL, and Michel WARSCHAWSKI (Israel); Daniel BENSAÏD and Michaël LÖWY (France); Naomi KLEIN (Canada); Felicia LANGER (Germany); and Moshe MACHOVER and Eyal WEIZMAN (UK).
“We gathered these names in just a week,” said Stephen R. Shalom, a professor of political science at William Paterson University, one of several individuals who initiated the letter in response to their outrage at the accusation of anti-Semitism levelled at Dierkes. “We’ve been getting a constant stream of additional names of people who want to add their names to the statement.” They can do so at.
Racheli Gai, an Israeli-American peace activist, noted that ” “There is real anti-Semitism in the world, and — like all forms of racism — it must be vigorously denounced. But frivolously making charges of anti-Semitism makes fighting the real thing harder, because it cheapens its meaning, and renders the motivations of even those who are making the charge legitimately suspect.” As the statement concluded, “The Holocaust was one of the most horrific events in modern history. It is a dishonor to its victims to use its memory as a bludgeon to silence principled critics of Israel’s unconscionable treatment of Palestinians.”
Hermann Dierkes, a former city counsellor in the German city of Duisberg representing the Left Party, said the accusations of anti-Semitism hit him very hard. “Because I am well aware of the German inextinguishable heritage of fascism and the genocide of the European Jews, I feel especially obliged to fight against racist prejudices and oppression. Human rights are indivisible for all individuals and peoples of the world. The right of self-determination has to be guaranteed for the Palestinian people too. This is a precondition to gain peace for the whole region.”
Among the many messages of solidarity he has received thus far, said Dierkes, “what moved me most was the open letter, signed by more than 370 Jewish peace activists from so many countries, including Israel.”
The full text of the open letter can be seen here, along with the full list of initial signatories. The developing list of additional signers can be seen at www.gopetition.com/petitions/dierkes-letter/signatures.html.
April 8th, 2009
Human rights investigator John Sifton explores why CIA director Panetta, and, perhaps, other Obama administration figures, are averse to investigating the CIA torture program:
The CIA Torture Cover Up
By John Sifton
Why doesn’t Leon Panetta want the agency investigated or prosecuted for torture allegations? Maybe because some of the men implicated, John Sifton reports, are the ones advising him.
On Monday night the confidential report of the International Committee of the Red Cross on the CIA’s secret detention and interrogation program was published on the website of the New York Review of Books. The report confirms previous allegations about CIA abuses against detainees. Unlike earlier reporting, however, the document is based on irrefutable first hand information: interviews with detainees and U.S. officials. The document describes in stark detail the CIA’s use of forced standing, sleep deprivation, prolonged isolation, assaults, and waterboarding. It also discloses the participation of CIA medical personnel in torture.
Some revelations in the IRCR report have already become known through the reporting of journalists Mark Danner and Jane Mayer. As a result, press accounts have focused on the fresh news of medical personnel supervising and overseeing abuse. But other important facts about the report have been overlooked that make the question of torture not simply a matter of the past.
The New York Times reported that Leon Panetta, the current CIA director, has taken the position that “no one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.” Yet a number of CIA officials implicated in the torture program not only remain at the highest levels of the agency, but are also advising Panetta. Panetta’s attempt to suppress the issue is making Bush’s policy into the Obama administration’s dirty laundry.
Take Stephen Kappes. At the time of the worst torture sessions outlined in the ICRC report, Kappes served as a senior official in the Directorate of Operations—the operational part of the CIA that oversees paramilitary operations as well as the high-value detention program. (The directorate of operations is now known as the National Clandestine Service.) Panetta has kept Kappes as deputy director of the CIA—the number two official in the agency. One of Kappes’ deputies from 2002-2004, Michael Sulick, is now director of the National Clandestine Service—the de facto number three in the agency. Panetta’s refusal to investigate may be intended to protect his deputies. Since the basic facts about their involvement in the CIA interrogation program are now known, Panetta’s actions are increasingly looking like a cover-up.
Another overlooked fact is this: the ICRC report is an important legal document that contains well-sustained allegations of criminal conduct with legal significance. Unlike earlier claims in books, magazines, and newspapers, the ICRC’s allegations are official notices from a legally recognized entity. The ICRC, after all, is not Human Rights Watch, the Washington Post, or The New Yorker, all of which have reported on the CIA’s secret prison program. The IRCR is an official entity recognized under the Geneva Conventions and various other earlier international treaties relating to armed conflict and prisoners of war. The ICRC is specifically tasked under the Geneva Conventions to visit prisoners and communicate with detaining powers to uphold the conventions’ spirit and purpose. Its interpretations and statements on matters of international law are held as legally authoritative. As such, the ICRC’s allegations have legal significance beyond previous disclosures. In effect, the document itself is evidence in a criminal case.
Note in particular the report’s date, February 14, 2007—Valentine’s Day. On that date, the U.S. government was put on notice about the allegations of CIA torture. (The ICRC also wrote to the U.S. governments about the issue of disappearances at several points in 2003-2006.)
Under international law—the Geneva Conventions, the Convention against Torture, and basic precepts of customary international law—the United States has a positive obligation to investigate and prosecute persons alleged to have committed torture and other violations of the laws of war. As of Valentine’s Day 2007, and possibly earlier, the U.S. government was obligated to investigate and prosecute the abuses detailed in the report. The United States’ failure to do so is a recurring breach of international law. If the Spanish case against six high-level Bush administration officials accused of authorizing torture proceeds, the Red Cross report—among other documents—may be entered as evidence. Further international prosecutions that the U.S. is obligated to respect may go down the chain of command to Panetta’s deputies.
The ICRC report does not contain information about the identities of CIA personnel involved in the program, although there are descriptions of some individual interrogators; nor does it discuss the involvement of senior government officials in the program.
Nonetheless, footnote 9 reveals that the ICRC was informed by the then-director of the CIA, Michael Hayden, that interrogation plans for detainees were submitted to the “CIA headquarters” for approval and as of 2007 were approved by “the Director or Deputy Director of the CIA.” It is likely that this approval process existed at earlier points in 2002-2006.
This is more than an interesting detail. In fact, it could implicate several high-level CIA officials in torture, including previous CIA directors George Tenet (resigned 2004) and Porter Goss (resigned 2006), as well as deputy directors John McLaughlin (resigned 2004) and Albert Calland (resigned 2006). These CIA officials are no longer serving. Kappes, Sulick and others are still there.
Panetta’s refusal to endorse investigations and prosecution is based in part on opinions issued in memos in 2002 to 2003 from the Bush administration’s Justice Department Office of Legal Counsel to the effect that the CIA’s interrogation tactics were legal.
The OLC memoranda, however, were highly controversial even within the Bush administration, and today there are almost no attorneys or academics in the United States who defend their reasoning. Parts of the memoranda were withdrawn in 2005 and the Obama administration has repudiated their contents. But the memos were on the books for a time and conventional wisdom among academics as well as some Obama officials is that it would be difficult to prosecute a CIA officer who relied on legal assurances contained in them. In criminal law there are legal defenses to prosecution when a government agent, in good faith, relies on an official legal interpretation as to what is or is not legal and then commits otherwise illegal activity. (To take an example: It would not be appropriate to prosecute an undercover DEA agent if he smoked marijuana with drug dealers as part of efforts to gain their trust, especially if the agent were told by a Department of Justice lawyer that it was legal to do so.)
But Panetta’s “reliance on counsel” argument is off base. First, some of the worst torture that occurred as part of the CIA program occurred in the case of Abu Zubaydah—and most of that abuse occurred before the relevant OLC memoranda were even written.
Second, the reliance defense is not an absolute shield to prosecutions: it is a defense available to individual defendants on a case-by-case basis. A court must decide, from case to case, whether the defense applies.
And, ultimately, the reliance in question must be in good faith. Prosecutors may be able to show in higher-level cases that officers like Tenet, Goss, and others believed that the memoranda were flawed and therefore were not acting in good faith. Moreover, if prosecutors can show that a reasonable attorney would or should have known the memoranda were incorrect as a matter of law, they might be able to prosecute attorneys within the White House and CIA—such as former OLC attorney John Yoo and CIA Acting General Counsel John Rizzo—on grounds that by writing or promulgating the memoranda they participated in a criminal enterprise aimed at allowing the President and his staff, and the CIA, to evade federal criminal law.
Of course, such investigations are politically tricky. In order to avoid being tainted, President Obama might appoint a special prosecutor, fire implicated CIA officials (there are plenty of CIA rank and file who would be glad to see them go), and wash his hands of political fallout. In any case, he has to do something. Even if Panetta wishes it, the torture scandal is not going away.
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John Sifton is a private investigator and attorney based in New York City. His firm, One World Research, carries out research for law firms and human rights groups, including in South Asia, the Middle East and North Africa. He has conducted extensive investigations into the CIA interrogation and detention program.
April 8th, 2009