Psyche, Science, and Society

The Unreleased Torture Memo

By David Luban

“I remember well the pain of those of us who served our country even when the policies we were carrying out were unpopular or could be second-guessed. We in the Intelligence Community should not be subjected to similar pain.”

– April 16 statement by Dennis C. Blair, Director of National Intelligence, responding to the release of additional torture memos by Steven Bradbury, Jay Bybee, and John Yoo.

MEMORANDUM FROM STEVEN BRADBURY, JAY BYBEE, AND JOHN YOO, OFFICE OF LEGAL COUNSEL, TO JOHN RIZZO, GENERAL COUNSEL, CIA:

You have asked for this Office’s views on whether the technique known as “second-guessing” would violate the prohibition on torture found at Section 2340A of title 18 of the United States Code. As you have described second-guessing, it consists of the following procedures: (1) revelation of abusive, illegal, or immoral tactics by United States personnel in an armed conflict of either an international or noninternational character, see Articles 2 and 3 common to the 1949 Geneva Conventions; (2) subjecting the personnel to public criticism, including but not necessarily limited to criticism by liberals, the editorial staffs of the mainstream media (hereinafter: MSM), Democratic (hereinafter: “Democrat”) senators, and Europeans; (3) subjecting such personnel to investigation and/or legal liability for “crimes” (hereinafter: self-sacrificing public service), even though such liability may appear to be largely hypothetical because of political opposition and presidential reluctance; and therefore (4) causing potential anxiety among such personnel. You have informed us that such anxiety may deter intelligence personnel from self-sacrificing public service (so-called “crime”) in the future.

As we have explained in our memorandum of August 1, 2002, torture requires the intentional infliction of severe mental or physical pain or suffering. Mental suffering, we have explained, must be prolonged for months or years to count as “severe”.

We have concluded that second-guessing does indeed cause severe mental suffering and is therefore prohibited by federal law. After all, you are still experiencing the trauma of being second-guessed about the Vietnam War more than thirty years after it ended. Although the statute requires that the second-guesser specifically intend to cause prolonged mental suffering, evidence exists that anti-war protestors in 1969 were heard to shout, “I hope the shame lasts forever!” (statement of hippie protestor at a demonstration after MSM traitorously revealed details of the My Lai incident; cited in Collected Bitter Reminiscences of Richard Cheney, vol. 4, The Angry Years, at 196; see also id., vol. 6, The Paranoid Years, at 515). We believe that the quoted statement evidences specific intent to cause prolonged mental pain through the act of second-guessing.

To summarize: second-guessing members of the Intelligence Community is torture, and therefore a crime. However, as we have explained in previous memos, Waterboarding, Walling, Cold Cell, and Long Time Standing are not.

Gen. Taguba: Accountability for torture does not stop at White House door

by Andrew Kalloch

Major General Antonio Taguba called for an independent commission to investigate war crimes committed by senior members of the Bush Administration in remarks in Ames Courtroom on Tuesday, April 14. The event was sponsored by Physicians for Human Rights and the Human Rights Program at Harvard Law School.

Taguba, who was pressured to resign by the Bush Administration in 2007 following the 2004 leak of his report detailing abuses by U.S. armed forces in Abu Ghraib prison in Iraq, declared in the preface of the 2008 Physicians for Human Rights publication “Broken Laws, Broken Lives,” that, “there is no longer any doubt as to whether the [Bush] 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.”

While the Obama Administration has “reaffirmed its commitment to valuing human rights and international law” by officially closing CIA black sites and the detention center at Guantanamo Bay, Taguba insisted that “there are a lot of stories that have yet to be told.”

In an effort to make those stories known, Taguba has been travelling the country seeking to foster dialogue between human rights advocates and the nation’s armed forces. According to Taguba, the two groups “share a common denominator based on ethical considerations of democratic principles.” Human rights advocates seek to ensure the preservation of democratic ideals and U.S. armed forces are trained to “provide services in a manner that exemplifies America’s ideals” and to protect America’s value system and its’ way of life, not simply to secure its borders at all costs.

Taguba explained that the Army’s core values-honor, integrity, courage, and selfless service-are but one part of a broader set of moral foundations upon which the Army operates. For example, Taguba declared that the Army is required to adhere to international laws, including all four Geneva conventions, as well as the Uniform Code of Military Justice, and to demonstrate “responsibility, accountability, and discipline.”

Even when soldiers are not in combat, and are instead serving the American public and the many peoples of the world abroad via merchant shipping protection and humanitarian aid, they are obliged, Taguba stated, to abide by this strict moral code, since their very presence has a profound effect on the American image. Despite the horrors of combat, Taguba stated unequivocally that troops “are not immune or exempt from criminal acts, bad behavior, or tragedy in their operations.”

Just as troops are not immune from prosecution-indeed, they must be held accountable for their actions-so must senior civilian officials be held accountable for policies that systematized and legitimized torture and other abuses of power by U.S. troops in the War on Terror, Taguba stated. If the “torture memos” penned by John Yoo, Alberto Gonzales, and David Addington, among others, were catalysts for the soldiers to engage in criminal acts, as Taguba surmised, these officials need to be held accountable.

“Abu Ghraib emerged from a structure developed by senior officials in the Bush White House and by those who thought it was necessary to blindly advance the Bush administration’s goals,” the General declared. “Abu Ghraib was not just happenstance. It was a morbid consequence of a policy that emanated from the Office of Legal Counsel and the Justice Department.”

According to Taguba, these failures not only constitute war crimes, but also have emboldened America’s enemies abroad, leading to greater numbers of American deaths in Iraq.

However, far from being held accountable, senior administration officials have quietly ridden off into the sunset. Indeed, after seventeen high level investigations, army soldiers were signaled out for punishment despite presence of evidence regarding upper level officials’ awareness and support. “Over 200 soldiers and officers were punished…unfortunately no civilian officials or contractors have been punished for their involvement,” Taguba stated.

Taguba singled out John Yoo, who, as a member of the Office of Legal Counsel, co-authored legal memoranda that produced, in Taguba’s words, “despicable torture and abuse.” Yoo has not expressed remorse for the memos,” Taguba insisted. Rather, Yoo has only stated that he would have spent more time had he known the memos would become public.

Responding to those who oppose investigation and prosecution of senior officials in the Bush Administration whose “actions were supposedly made in good conscience in effort to secure national security,” Taguba answered, “What about those soldiers punished, court-martialed, and reduced in rank?”

Ultimately, Taguba concluded, investigation of the Bush Administration is needed if “accountability is not to be just a hollow term.” “In my opinion accountability is a condition of employment. Government leaders who chose to accept high level positions of influence ought to hold firm and be accountable.”

Bush memos parallel claim 9/11 mastermind’s children were tortured with insects

By John Byrne

Bush Administration memos released by the White House on Thursday provide new insight into claims that American agents used insects to torture the young children of alleged 9/11 mastermind Khalid Sheikh Mohammed.

In the memos, released Thursday, the Bush Administration White House Office of Legal Counsel offered its endorsement of CIA torture methods that involved placing an insect in a cramped, confined box with detainees. Jay S. Bybee, then-director of the OLC, wrote that insects could be used to capitalize on detainees’ fears.

The memo was dated Aug. 1, 2002. Khalid Sheikh Mohammed’s children were captured and held in Pakistan the following month, according to a report by Human Rights Watch.

While an additional memo released Thursday claims that the torture with insects technique was never utilized by the CIA, the allegations regarding the children would have transpired when the method was authorized by the Bush Administration.

At a military tribunal in 2007, the father of a Guantanamo detainee alleged that Pakistani guards had confessed that American interrogators used ants to coerce the children of alleged 9/11 mastermind Khalid Shaikh Mohammed into revealing their father’s whereabouts.

The statement was made by Ali Khan, the father of detainee Majid Khan, who gave a detailed account of his son’s interrogation at the hands of American guards in Pakistan. In his statement, Khan asserted that one of his sons was held at the same place as the young children of Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11, 2001 attacks.

“The Pakistani guards told my son that the boys were kept in a separate area upstairs and were denied food and water by other guards,” the statement read. “They were also mentally tortured by having ants or other creatures put on their legs to scare them and get them to say where their father was hiding.” (A pdf transcript is available here)

Khan’s statement is second-hand. But the picture he paints of his son’s interrogation at the hands of American interrogators is strikingly similar to the accounts given by numerous other detainees to the International Red Cross. The timing of the capture of Khalid Sheikh Mohammed’s son — then aged seven and nine — also meshes with a report by Human Rights Watch, which says that the children were captured in September 2002 and held for four months at the hands of American guards.

“According to eyewitnesses, the two were held in an adult detention center for at least four months while U.S. agents questioned the children about their father’s whereabouts,” the report said.

The use of insects isn’t mentioned in a recently leaked International Red Cross report, in which Red Cross officials questioned detainees about their treatment at the hands of US forces and ultimately judged them to have been tortured. A second memo released Thursday, dated May 10, 2005, says the CIA told the White House insects were never actually used in interrogations.

“We understand that — for reasons unrelated to any concerns that it might violate the [criminal] statute — the CIA never used the technique and has removed it from the list of authorized interrogation techniques,” Steven Bradbury, a principal deputy assistant attorney general, wrote in a footnote.

It’s worth noting, however, that the Red Cross was denied access to individuals held at CIA black sites. Khan’s son, Majid, was among those President Bush moved from the CIA’s secret prison network to Guantanamo Bay.

The techniques Khan says were employed against his son also match those approved in the Bybee memo.

“What I can tell you is that Majid was kidnapped from my son Mohammed’s [not related Khalid Sheikh Mohammed] house in Karachi, along with Mohammed, his wife, and my infant granddaughter,” Khan said in his military tribunal statement. “They were captured by Pakistani police and soldiers and taken to a detention center fifteen minutes from Mohammed’s house. The center had walls that seemed to be eighty feet high. My sons were hooded, handcuffed, and interrogated. After eight days of interrogation by US and Pakistani agents, including FBI agents, Mohammed was allowed to see Majid.

“Majhid looked terrible and very, very tired,” Khan continued. “According to Mohammed, Majid said that the Americans tortured him for eight hours at a time, tying him tightly in stressful positions in a small chair until his hands, feet and mind went numb. They re-tied him in the chair every hour, tightening the bonds on his hands and feet each time so that it was more painful. He was often hooded and had difficulty breathing. They also beat him repeatedly, slapping him in the face, and deprived him of sleep. When he was not being interrogated, the Americans put Majid in a small cell that was totally dark and too small for him to lie down in or sit in with his legs stretched out. He had to crouch. The room was also infested with mosquitoes. The torture only stopped when Majid agreed to sign a statement that he was not even allowed to read.”

Later in his statement, Khan alleges that the Pakistani guards revealed other abuses by American agents.

“The Americans also once stripped and beat two Arab boys, ages fourteen and sixteen, who were turned over by the Pakistani guards at the detention center,” he said. “These guards told my son that they were very upset at this and said the boys were thrown like garbage onto a plane to Guantanamo. Women prisoners were also held there, apart from their husbands, and some were pregnant and forced to give birth in their cells. According to Mohammed, one woman also died in her cell because the guards could not get her to a hospital quickly enough. This was most upsetting to the Pakistani guards.”

One blogger notes, “The first indications the children may have been tortured were reported in Ron Suskind’s 2006 book The One Percent Doctrine.”

“When KSM was being held at a secret CIA facility in Thailand, apparently the revamped Vietnam War-era base at Udorn, according to Suskind, a message was passed to interrogators: ‘do whatever’s necessary,’” Kevin Fenton writes at History Commons. “The interrogators then told KSM ‘his children would be hurt if he didn’t cooperate. However, his response was, ’so, fine, they’ll join Allah in a better place.’”

Fenton has two questions: “Did the Khans invent the allegations or garble them in some way and then ‘get lucky’ two years later, when it was revealed the CIA was, at least, contemplating the techniques they alleged it used at the time in question?” and “Given that nobody heard of the CIA using insects for another two years, why would they invent these specific allegations, which sounded bizarre when they were made?”

OLC Memos Confirm Integral Role of Health Professionals in US Torture

PHR Analysis of CIA Interrogation Tactics Confirms Severe and Long-Lasting Harm of Techniques

Cambridge, MA—The newly released Bush Administration’s Office of Legal Counsel (OLC) memos are detailed confirmation of the intimate involvement of health professionals in designing, supervising and implementing the CIA’s “enhanced” interrogation program. Tactics used by psychologists and supervised by medical personnel, including physicians, clearly constituted torture and a grave breach of medical ethics. The memos specifically reference psychologists from the SERE (Survival, Evasion, Resistance, Escape) training program, medical experts, and consultations “with outside psychologists” and “with a number of mental health experts.”

“The health professionals involved in the CIA program broke the law and shame the bedrock ethical traditions of medicine and psychology,” stated Frank Donaghue, Chief Executive Officer of PHR. “All psychologists and physicians found to be involved in the torture of detainees must lose their license and never be allowed to practice again.”

Physicians for Human Rights (PHR), in collaboration with Human Rights First, published a 2007 study, Leave No Marks: Enhanced Interrogation Techiques and the Risk of Criminality, conclusively showing the illegality of, and long-term mental and physical harm caused by, these tactics [http://physiciansforhumanrights.org/library/documents/reports/leave-no-marks.pdf].

“Strained legal rationalizations for torture techniques should provide no cover for health professionals who helped design and implement them,” stated John Bradshaw, Washington Director of PHR. “The White House and Congress must work together to ensure public accountability for these crimes and violations of medical ethics.”

Further investigation of the role of health professionals in the subsequent implementation of these illegal techniques, as called for in the memos, must be conducted by an independent commission which includes a specific focus on health professional complicity.

” These techniques rise to the level of war crimes and can cause catastrophic physical and mental suffering, lasting for years after an individual has been subjected to them,” stated Dr. Scott Allen, MD, PHR Medical Advisor and Co-Director of the Brown University Center for Prisoner Health and Human Rights. “The involvement of health professionals in techniques they should have known would result in severe pain and harm is not only an egregious violation of medical ethics, it is malpractice.”

PHR has long contended the techniques authorized in these memos were developed directly from the military’s SERE training program. The memos conclusively show that the legal justifications provided for the interrogation techniques were developed after the decision to proceed with the SERE techniques had already been made at a policy level.

“The timeline seen in these memos supports what other investigations have shown,” said Bradshaw. “A decision to use the SERE techniques was made at the White House level and the OLC memos were written after the fact to provide legal cover. Rather than serving as a shield to protect our values, the law was used as a fig leaf for torture.”

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Since 2005, PHR has documented the systematic use of psychological torture by the US during its interrogations of detainees at Guantanamo, in Iraq and Afghanistan, and elsewhere in its groundbreaking reports Break Them Down, Leave No Marks, and Broken Laws, Broken Lives. The organization has repeatedly called for an end to the use of the SERE tactics by US personnel, the dismantling of the Behavioral Science Consultation Teams (BSCT) teams, and a full Congressional investigation of the use of psychological torture by the US Government, among other recommendations. Additionally, PHR has worked to mobilize the health professional community, particularly the professional associations, to adopt strong ethical prohibitions against direct participation in interrogations. PHR was a co-recipient of the 1997 Nobel Peace Prize.