Archive for July, 2009

Jawad finally ordered released!

Yesterday a federal judge finally ordered that Mohamed Jawad be released, after almost six harrowing years in US captivity, as Andy Worthington explains:

Judge Orders Release of Tortured Gitmo Prisoner
Government Refuses to Concede Defeat

By Andy Worthington

On Thursday, in a long-anticipated ruling (PDF), Judge Ellen Segan Huvelle granted the habeas corpus petition of Mohamed Jawad, an Afghan teenager seized after a grenade attack on a jeep containing two U.S. soldiers and an Afghan translator in December 2002, and ordered the government to transfer him to the custody of the Afghan authorities, who have already stated that he will be released on arrival.

Even if the government accepts Judge Huvelle’s ruling, Jawad will not be released immediately, because, under the terms of legislation recently forced on the government by Congress, the administration will have to provide lawmakers with “an assessment of any risk to the national security” posed by Jawad before he can be freed, which, it said, would take 22 days.

However, even as Judge Huvelle delivered her ruling, the government announced that it has not entirely given up on Jawad’s case. Deputy Assistant Attorney General Ian Gershengorn told the court that the government was still deciding whether to pursue a criminal case against Jawad, meaning that he could, conceivably, be transferred to the U.S. mainland to stand trial in a federal court.

At Thursday’s ruling, Judge Huvelle acknowledged that the government had the right to file a criminal case, and gave lawyers three weeks to do so, but she urged them not to take this course of action. “After this horrible, long, tortured history, I hope the government will succeed in getting him back home,” she said. “Enough has been imposed on this young man to date.”

These may seem like harsh words, but they are nothing compared to the sustained scorn that Judge Huvelle poured on the government’s case in a hearing two weeks ago, and for those who have studied Jawad’s case in any detail, they are entirely appropriate, as the case against Jawad first collapsed nine months ago. It would not be an exaggeration to state that, if the Justice Department and the Defense Department decide to proceed with a criminal prosecution, it will demonstrate not only that they have, collectively, taken leave of their senses, but also that no one in a position of responsibility — President Obama, Attorney General Eric Holder or defense secretary Robert Gates — has either the courage or the awareness to step in to prevent a clear message being sent out to the world that, far from addressing the excesses of the Bush administration’s “War on Terror,” the Obama administration is, instead, pursuing exactly the kind of cruel, unjust and incompetent policies that would bring a smile to the lips of former Vice President Dick Cheney.

To understand the significance of the decision facing the government, it is important to understand that the case against Jawad was always tenuous, as I reported in October 2007, when he was first put forward for a trial by Military Commission (the “terror trials” introduced by Dick Cheney in November 2001, and revived by Congress in 2006, after the Supreme Court ruled them illegal), and that it unraveled spectacularly last September, when the prosecutor in his proposed trial, Lt. Col. Darrel Vandeveld, resigned.

Stating that he had once been a “true believer,” but had ended up feeling “truly deceived,” Lt. Col. Vandeveld explained, as I described it in an article two months ago, that he had come to regard the Commissions as “a dysfunctional system, which, both through accident and design, prevented the disclosure of evidence essential to the defense, thereby ensuring that no fair trial was possible.” He also “described how evidence proving that Jawad was a juvenile at the time of his capture, that he was tricked into joining an insurgent group and was drugged before the attack, and that two other men had confessed to the crime, had been deliberately suppressed.”

If a shred of credibility remained in the case, this dissolved in October and November, when, on two separate occasions, Jawad’s military judge, Army Col. Stephen Henley, ruled that the crux of the government’s case against Jawad — two “confessions” made on the day of his capture, the first in Afghan custody, and the second, just hours later, in U.S. custody — were inadmissible because they had been obtained through treatment that constituted torture.

As I explained in my article two months ago,

On October 28 … [Col.] Henley found that there was “reason to believe Jawad was under the influence of drugs at the time of his capture and forced confession,” and also “accepted the accused’s account of how he was threatened, while armed senior Afghan officials allied with U.S. forces watched his interrogation.” He stated that he believed Jawad’s account of an interrogator telling him, “You will be killed if you do not confess to the grenade attack. We will arrest your family and kill them if you do not confess.” He also made a point of stating that he was accepting Jawad’s account because the government had failed to provide “timely disclosure of evidence” for his trial, which was scheduled to begin on January 5, 2009. […]

Three weeks later, Col. Henley dealt another blow to the prosecution’s case by ruling that a second confession, made in U.S. custody the day after his Afghan confession, was also inadmissible, because “the U.S. interrogator used techniques to maintain ‘the shock and fearful state’ associated with his arrest by Afghan police, including blindfolding him and placing a hood over his head.” As Col. Henley explained in his ruling, “The military commission concludes the effect of the death threats which produced the accused’s first confession to the Afghan police had not dissipated by the second confession to the U.S. In other words, the subsequent confession was itself the product of the preceding death threats.”

When Col. Henley excluded Jawad’s first confession, Lt. Col. Vandeveld responded by stating that it was “among the most important evidence for his upcoming war crimes trial,” and adding, “To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility.”

This really should have been the end of the whole sordid story, and Jawad should have been put on a plane and sent back to Afghanistan, but this didn’t happen, and, although Barack Obama suspended the Military Commissions for four months on his arrival in the White House on January 20, 2009, Jawad’s habeas corpus petition — one of hundreds allowed to proceed after a momentous Supreme Court ruling last June — reached a U.S. District Court around the same time, accompanied by an even more scathing statement by Lt. Col. Vandeveld.

In an unparalleled dissection of the failures of the Military Commission system — and, in a wider sense, of the gathering of evidence in connection with the cases of all the Guantánamo prisoners — Lt. Col. Vandeveld described at length the “chaotic” state of the Prosecutors’ Office, and explained how he had discovered previously hidden evidence relating to Jawad’s abuse at Bagram and in Guantánamo, where he was subjected to a sleep deprivation program, which involved moving prisoners from cell to cell every few hours (over a two-week period, in Jawad’s case) and was known, euphemistically, as the “frequent flier program.” He also noted that Jawad’s continued detention was “something beyond a travesty,” and stated that he “should be released to resume his life in civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.”

Given the glacial pace of most of the habeas reviews — primarily because of obstruction by the Justice Department, where officials have been behaving as though George W. Bush was still in power and Dick Cheney was still breathing down their necks — it took until June for Jawad’s case to reach a point where Judge Huvelle could finally confront the shattered remnants of the government’s supposed evidence. On that occasion, she indicated that the government would be in for a bumpy ride, declaring, “This case has been so thoroughly examined that it may be the one and only case not to be so difficult. This case is ready to go.”

However, few observers were prepared for the torrent of derision that Judge Huvelle subjected the government to just two weeks ago. In a 30-minute hearing on July 16 (PDF), Judge Huvelle’s patience was stretched to breaking point when the government responded to her ruling that every other confession made by Jawad at Guantánamo would also be excluded not by contesting the ruling (or, as would have made sense, by dropping the case outright), but by pleading that it needed more time to decide whether it could still build a case for a possible trial in federal court, or in a new Military Commission, based on what it described as new inculpatory evidence unearthed during a search of records.

Judge Huvelle’s criticisms were so sustained, and so damning of the government’s inability to recognize that it had no case, that I’m reproducing detailed excerpts in a separate article, but to pick out a few highlights, she repeatedly stressed that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes.”

She also insisted that the government should have known that it had no case when Jawad’s proposed trial by Military Commission effectively collapsed last November, and repeatedly expressed her fears that the administration was planning some kind of underhand treachery to prevent her from granting Jawad’s habeas petition, stating, at one point, “I’m not going to wait to grant a habeas until you gear up a military commission. That’s what I’m afraid of. Let him out. Send him back to Afghanistan.” On another occasion, she stated, “If they [the government] think for one minute that I am going to delay this thing so they can come up with some other alternative to going forward with the habeas and pull this rug from under the Court at the last minute by saying, oh, he is going to the Southern District of New York, don’t bother — or whatever idea you come up with.”

To my mind, the very fact that a judge in a U.S. District Court can, genuinely, fear that the government will attempt to usurp her authority spells out, succinctly, the dangers of the place in which the Obama administration finds itself, as it attempts to clear up the mess inherited from George W. Bush. I still have no firm idea why Obama and Holder have allowed the Justice Department to pursue unjustifiable and unwinnable cases in the habeas litigation, resulting, over the last few months, in humiliation after humiliation, first in the case of Alla Ali Bin Ali Ahmed, then in the case of Abdul Rahim al-Ginco, a young Syrian who was tortured by al-Qaeda, and now in the case of Mohamed Jawad.

However, it’s conceivable that, in its desire to fully comprehend the cases — and to “own” them, if you like — the administration has poured all its energies into the inter-departmental Task Force that is currently halfway through reviewing all the Guantánamo prisoners’ cases. This is, perhaps, understandable, but by neglecting to cast a genuinely critical eye on the habeas litigation, senior officials are committing three unforgivable errors:

  • firstly, they are treating the judiciary with scorn, even though the habeas litigation began five years ago on the orders of the Supreme Court, and the District Courts are, moreover, the only genuinely open forum for discussion of the Guantánamo cases;
  • secondly, they are demonstrating that, whatever fine words they may utter, they are, in practice, cleaving to the Bush administration’s insanely broad detention policies regarding “enemy combatants,” and are effectively failing to distinguish between genuine terrorist suspects (al-Qaeda) and low-level fighters in an inter-Muslim civil war that preceded 9/11 and had nothing to do with it (recruits for the Taliban);
  • and thirdly, by failing to understand how little “evidence” is actually credible, because it is the product of the dubious interrogations of other prisoners, or of intelligence procedures, designed to produce a “mosaic” of intelligence, which, in reality, cannot stand up to independent scrutiny, they are repeatedly pursuing cases that only end up embarrassing or humiliating the government, and are, yet again, reinforcing notions that they are essentially happy with the Bush administration’s unprecedented and unforgivable decision to create a category of prisoner that is neither a prisoner of war nor a criminal suspect.

The response to these errors is the same as it should have been on Day One of the Obama administration, when many of us thought that real change was coming: speed up the habeas cases; focus solely on issues relating to acts of terrorism or genuine support for terrorism; abandon every other case, especially those that look dubious or unwinnable; and prepare federal court trials for those regarded as genuinely dangerous, in the knowledge that federal courts have a proven track record of successful terrorist prosecutions, and that no jury will fail to convict if any real evidence is presented.

In addition, the administration needs to swear that, in future, anyone seized in wartime or in connection with terrorism will be treated either as a prisoner of war, protected by the Geneva Conventions, or as a criminal suspect, to be prosecuted in a federal court, so that “lousy” and “unbelievable” cases like that of Mohamed Jawad become a thing of the past, consigned to history as securely as George W. Bush, Dick Cheney and all the other architects of the unprecedented flight from the law that was initiated in the wake of the 9/11 attacks.

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Andy Worthington is a British journalist and historian, and the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (published by Pluto Press). Visit his website at: www.andyworthington.co.uk He can be reached at: andy@andyworthington.co.uk

July 31st, 2009

Clinton obstructs justice for torturers

Hillary Clinton joins those obstructing justice for torturers, Scott Horton argues:

Clinton Intervened to Keep Lid on Torture Account

By Scott Horton

In English court proceedings surrounding released Guantánamo detainee Binyam Mohamed, British Foreign Minister David Miliband has reinforced his claims that disclosing details of Mohamed’s mistreatment would harm British national security. He now states that Secretary of State Hillary Clinton personally intervened in the matter to state that disclosing information given by the CIA to a British court would damage the Anglo-American special relationship in intelligence matters. The Guardian reports:

In a written statement proposing a gagging order, Miliband told the court that she “indicated” that the disclosure of CIA evidence “would affect intelligence sharing”. Pressed repeatedly by the judges on the claim yesterday, Karen Steyn, Miliband’s counsel, insisted that Clinton was indeed saying that if the seven-paragraph summary of CIA material was disclosed, the US would “reassess” its intelligence relationship with the UK, a move that “would put lives at risk”.

The Daily Telegraph reports the same exchange:

Mrs Clinton personally told the Foreign Secretary that the US government would consider the dramatic step if a short summary of the treatment of Binyam Mohamed is placed in the public domain, the High Court was told. A hearing was told that the move could cause “serious harm” to Britain’s national security and potentially put the lives of British citizens at risk.

Binyam Mohamed is an Ethiopian national who was granted protected status in Britain. He was arrested in April 2002 when he attempted to board a plane in Karachi, Pakistan, to fly back to Britain. Pakistani authorities turned him over to the CIA, and he was held in the CIA’s extraordinary renditions program until 2004, when he was transferred to Guantánamo. His accounts of torture at the hand of captors in Pakistan and Morocco were previously validated by British courts, which noted the involvement of the CIA and British intelligence in the process.

Miliband explains Clinton’s objection in terms of the “principle” that intelligence furnished should not be disclosed, even in court proceedings. However, it is fairly obvious that the American State Department is acting as a proxy for American intelligence services in this process. And there is a far more powerful principle in play. The torture practiced on Binyam Mohamed was a serious crime. Evidence is being suppressed to preclude the full investigation of that crime and to block possible criminal prosecutions of those involved. That’s called obstruction of justice, and it’s also a crime. This case well exemplifies how the Obama Administration is using claims of national security interests to preclude serious investigations of criminal conduct and accountability of those involved.

July 31st, 2009

The American Psychological Association and the Missing Ethics Investigation: How APA Suppressed an Ethics Complaint and Appointed the Accused to Formulate Ethics Policy on Torture

In an important development in the American Psychological Association saga, Jeffrey Kaye has reported that psychologist Michael Gelles, a member of the association’s 2005 PENS [Psychological Ethics and National Security] task force, was himself accused of ethics violations during the interrogation of Navy Petty Officer Daniel King. This occurred well before Gelles’ appointment to the PENS Task Force.

Kaye bases his account of Gelles’ involvement largely on the statements to the Senate Intelligence Committee [SIC] of King’s three attorneys, highly respected George Washington University Constitutional law professor Jonathan Turley and Navy Jags Robert Bailey and Matthew Freedus. [See the Federation of American Scientists page on the case for these and other documents.]  The attorneys’ accounts are, in turn, based on an actual videotape of Gelles’ interrogation of King.

According to the statement given to SIC, in late September 1999 King was accused of spying after an ambiguous result on his routine polygraph test. As a result, King was interrogated by the Navy Criminal Investigative Service [NCIS], for whom Gelles worked, for 17 to 19 hours at a time for 30 days straight.

As Turley relates:

“King was given at least five polygraphs in a single day during his interrogations by the NCIS. He was not only lied to about his results but lied to about the meaning of these results. NCIS agents told King that these results indicate that something did happen. In this sense, the polygraph examinations were used in combination with the NCIS insistence that King write down his fantasies. NCIS agents convinced King that these results indicated that his fantasies were simply suppressed memories.”

The King interrogation reportedly was rife with abuse. King allegedly was illegally denied an attorney when he requested one. Agents repeatedly lied to him about the results and the meaning of ambiguous or incorrectly administered polygraph tests. He was repeatedly threatened with further abuse if he did not cooperate.. He was encouraged to report his fantasies, after which agents told him that these fantasies meant they must have a basis in fact. During his extended interrogation, accompanied by sleep deprivation, King made a confession, only to recant it the next day and thereafter. After at least 520 days of detention, he was released, and the case was dropped without charges. The case was later the subject of hearings before the Senate Intelligence Committee.

Turley describes Gelles’ interview with King:

“At times, King is shouting “I don’t know what I’m supposed to give you” over and over at the agents as they press him for a signed confession. Moreover, it is noteworthy that King seeks the assistance of a psychologist for hypnosis on the videotaped interview with NCIS psychologist Dr. Michael Gelles. After his return to the United States, King was clearly trying to find a way to distinguish fantasy from reality. He told Gelles that he had no memory of the espionage facts but says that the polygraph examinations prove that he must have done something – a clear misconception that neither Gelles nor the agents correct. King asked for hypnosis and truth serum to determine if this is merely a dream. Gelles told him that he might give King hypnosis if King goes back and gives the agents “corroborating” evidence. Gelles told King that he could trust the agents and says that the agents are clearly his friends, he had a “special relationship” with the agents and the agents “will be with you forever.” Gelles virtually ignored the statement of King that he had suicidal thoughts when he left Guam – two days before the interview. Instead, Gelles told King to give corroborating evidence as a precondition for the hypnosis that King sought to clear his doubts as to any espionage. These tapes show a sailor who is struggling with his total inability to remember any act of espionage while clearly accepting the false representation that, if a polygraph examination shows deception, he must have committed such an act. It is difficult to watch and listen to these tapes because they show a total disregard by the NCIS for any effort at determining the truth of these allegations as opposed to making a case at any costs.”

Understandably appalled the attorneys determined to take action against Gelles. Turley says,

“Dr. Gelles has already been notified of our intention to file formal charges against him with the American Psychological Association. Dr. Gelles has refused to give licensing information to the defense or to respond to allegations of violation of basic canons of professional conduct as a licensed psychologist. Dr. Gelles is on the videotape telling an individual with stated suicidal thoughts to return to interrogation and that the agents are not only his close friends but that they would stand with him “forever.” Dr. Gelles specifically tells King that, if he offers `corroborating’ evidence to the NCIS, he might be able to give King the hypnosis that he seeks [to help determine what is real and what is not real].”

American Psychological Association

According to Kaye, Turley confirmed to him that he, indeed, filed an ethics complaint with the APA regarding Gelles’ behavior in this case, but the complaint was never investigated:

“In a private communication, Mr. Turley subsequently indicated the ethics charges were filed, and dismissed without any investigation by APA.” [Emphasis added.]

The Ethics Director of the APA at the time was Dr. Stephen Behnke, who assumed the position in 2000. This is important because, in 2005, Dr. Behnke was involved in the process of appointing the members of the PENS task force to examine the ethics of psychologist participation in national security interrogations of detainees. At the time the task force was convened, and even after the Task Force report was published, the membership of the PENS task force remained secret. The report was unsigned (apparently the only case of an unsigned Presidential Task Force report in APA history, requests for the names of Task force members from the membership and the press were denied. In fact, soon after the report was published, Gelles and Behnke shared a panel on Ethics and National Security at the APA Convention. Gelles reported back to the other task force members on the listserv of the PENS task force, that “I was once again impressed with how Dr. Behnke eloquently represented our work and insured the confidentiality of the panel, despite pressure to reveal the identities of the task force members…” It was later revealed that six of the 10 members were from the military-intelligence establishment.

It is hard to understand any way in which Dr. Behnke could not have been aware of the ethics complaint filed with his office against Gelles in a high-profile case.

Not surprisingly, this stacked task force concluded that psychologist participation in national security interrogations at Guantanamo, in Iraq and Afghanistan, and at CIA black sites was ethical. In fact, they claimed:

“[P]sychologists are in a unique position to assist in ensuring that these [interrogation] processes are safe and ethical for all participants.”

The case of Gelles’ involvement in the King interrogation, of course, makes this assertion quite dubious.Gelles’ involvement in the King interrogation clearly did not “assist in ensuring that” this interrogation was “safe and ethical for all participants.” Furthermore, as Turley reports, Gelles ignored suicidal statements made by King, thus failing during his interview in his obligation to ensure that the process was “safe.”

From the record of the King case, it appears that Gelles may have violated several other of the recommendations of the PENS task force. Among the recommendation that may have been violated were:

PENS: “Psychologists are alert to acts of torture and other cruel, inhuman, or degrading treatment and have an ethical responsibility to report these acts to the appropriate authorities.”

The detention and interrogation of King would likely meet the legal threshold of “cruel, inhuman, or degrading treatment.” He was subjected to sleep deprivation for a month and isolated from all social supports. According to the Senate testimony of King’s attorney, JAG Robert Bailey, NCIS agents threatened to harm King’s family on at least two different occasions. While it is possible Gelles reported these abuses, there is no indication in the public record that he did so.

PENS: “Psychologists are aware of and clarify their role in situations where the nature of their professional identity and professional function may be ambiguous.”

PENS: “Psychologists are sensitive to the problems inherent in mixing potentially inconsistent roles such as health care provider and consultant to an interrogation, and refrain from engaging in such multiple relationships.”

PENS: “Psychologists make clear the limits of confidentiality.”

In his videotaped interview with King, Gelles reportedly told King that he was a “doc” and not an agent while failing to tell him that he was part of the investigative team and that the interview was part of the interrogation. He thus confused his health provider ["doc"] and investigative roles. He di not, apparently, clarify “the limits of confidentiality.”

It is important to stress that these comments on Gelles’ behavior are provisional and are based solely upon accounts of his interview with King provided by King’s attorneys. There may be other aspects of the  case that would change the overall evaluation of Gelles’ behavior. But such exculpatory information is not available in the absence of an investigation.

What is most important is that the APA Ethics Committee, faced with a complaint of very serious ethical lapses from a highly reputable attorney, failed to open the case or investigate these claims. It thus appears that they never even viewed the videotape containing the Gelles interview of King or sought information from King or his complainant attorneys.

This case is not the only ethics complaint filed against a member of the PENS task force. Another Task Force member faced charges for possible involvement in abuses at Guantánamo in 2003. Here, too, the APA Ethics Committee declined to open a case, even though the same APA Ethics Director, Stephen Behnke, publicly admitted that the acts alleged are unethical. In yet a third case, an ethics complaint against a Guantanamo military psychologist was opened but remains open three years later. Government documents show this psychologist participating in the planning and execution of the torture of Guantanamo detainees al Qahtani. A fourth psychologist, Col. Morgan Banks, has acknowledged training Guantánamo interrogators in abusive interrogation techniques. Ethics charges could not be brought against Banks because he was not an APA member at the time of the abuse. Nor was he an APA member when Behnke appointed him to the PENS Task Force, though he has joined the APA since. Evidently ethics complaints against psychologists affiliated with the military [Gelles was a civilian NCIS employee at the time of the King interrogation] have an exceedingly high threshold before the APA will even open a case, much less investigate.

Equally important to the failure of the APA to investigate the complaint against Gelles was that Behnke allowed Gelles to be appointed to the PENS task force on the ethics of interrogations, in spite of the fact that an ethics complaint had been filed against him for interrogation abuse. Ordinary prudence would caution against such a step, at least without full transparency and explanation. The lack of such prudence, however, is not surprising on a task force on detainee abuse which is already known to contain four members from chains of command accused of detainee abuse.

Interestingly, as Kaye notes in his article, Gelles himself made reference to the King case on the listserv of the PENS task force in a manner that suggests that even he assumed members of the task force were well aware of his involvement in the matter:

“As Chuck Ewing has said on many an occasion… the Agency is entitled to consultation just as an individual…. In the Squillicoate [sic] case referenced in the article, and to some extent my experience with the King case, a new demand to re-think how the profession was going to hold psychologists in practice accountable in contexts outside of the clinical and academic arena’s was becoming more evident.” [Emphasis added by Kaye.]

As reported in the PENS task force report, members of the task force were aware that the APA the ethics code included the Nuremberg Defense ["just following orders"] in its ethics standard 1.02, added in 2002.

“If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority.”

According to this standard, Gelles’ actions, however otherwise in violation of the ethics code, would be “ethical” if carried out in response to an order or “other governing legal authority.” As I write this I cannot help but wonder if the Gelles-King case was on the minds of the Ethics Committee as they pondered adopting 1.02. Given the APA’s pattern of failing to adequately investigate ethics complaints against military-affiliated psychologists, it is not surprising that they have maintained the Nuremberg Defense despite the APA Council requesting a revision twice over the last four years. The APA is apparently about to adopt another six-month delay in revising this standard despite the obvious unethical behavior it may have facilitated and the serious consequences it has had for the whole profession of psychology

The failure of APA to investigate the Gelles case, and his subsequent appointment to the PENS task force will reinforce recent calls by psychologists and human rights advocates in an Open Letter for, among other actions, annulling the PENS report;  bringing in  independent attorneys to pursue accountability of psychologists accused of torture or detainee abuse;  revision of ethics standard 1.02 and other problematic sections of the ethics code; and for an independent investigation of ties and possible collusion between the APA and the military-intelligence establishment.

APA has a very long way to go if it is to regain the trust of its members and of the public.  Concerned APA members at this juncture must decide how long they will wait to see these changes implemented by the APA leadership before they leave the association for a less compromised alternative.

July 29th, 2009

Naomi Wolf visits Obama’s Guantanamo

Naomi Wolf visited the new, Obama, Guantanamo and wrote about it in the London Times. It is a classic case study of official cover of official abuses:

Guantánamo Bay: the inside story
There’s a McDonald’s on the high street, suburban houses, rats the size of dogs, and 229 of the world’s most high-profile prisoners. Six months after President Obama declared that he would close it down, Naomi Wolf heads to Guantánamo Bay to see whether anything has changed

By Naomi Wolf

Six months ago this week President Obama, on his second day in office, promised to close the Guantánamo detention camp within a year, and to undo the secretive and coercive detention and interrogation policies of George W. Bush. But has Obama been as good as his word?

I went to Guantánamo last month to see for myself what difference, if any, Obama’s election had made. My trip was surreal from start to end. I was in line for the rotating junket to the island, and had been given a date by a nervous-sounding and very young Lieutenant Cody Starken. I signed papers that committed me to not reporting classified information — on pain of prosecution. Then I got on a tiny aircraft — unmarked on any announcement board — out of Fort Lauderdale airport.

On the aircraft were bland-looking contractors, male and female, who deflected my small talk, and two young staffers from the Centre for Constitutional Rights, the organisation representing the detainees when no one else would touch the work, and which now co-ordinates hundreds of lawyers from across the country doing so: Pardis Kebriaei, a staff lawyer, and Jess Baen, a legal worker, tried to answer all my questions until my military handler determinedly parted us on our arrival. Lawyers are kept in a compound on one side of the military base at Guantánamo, journalists housed on the other side; they may never communicate with or run into one another. As a journalist, a handler sticks within 18in of you at all times, standing outside when you go to the bathroom and near by when you buy personal items at the commissary; your phone calls and e-mail are monitored.

Passport check was followed by our descent over the glittering curve of the sea on to the edge of Cuba, which was studded with lights. A tired, courtly Navy media specialist, MC1 Mapp, whisked me through security checks; I took in the heat, humidity, mosquitoes and languid crowds of Filipino and Jamaican contractors. We stepped into a ferry; then a young, chipper Sergeant Hillegass — in his other life, a 911 dispatcher — met us in a van and drove us to a street of identical townhouses. I was left alone in the house.

My mobile phone could not call out directly, my BlackBerry did not work, there was no internet access for my computer. My press kit had a scene of a lush sunset on the cover, and a speedboat.

Breakfast — with a TV crew from Poland and another from Russia, and our military handlers — was at a lively mess hall that looked like something out of summer camp, except that all the tired, strapping young people were in pressed fatigues. Then two African American soldiers, Petty Officer Bennet, a genial woman in her thirties who wanted to be a graphic designer, and a charming man a bit older, Petty Officer Dwight, took us to our first stop, Camp X-Ray.

As the military handlers made pleasant jokes about the heat, I took in a low-tech vision of Hell. This was the site of the first scenes from Guantánamo, where men sweltered in kennel-like cages. These were the cages themselves: about 50, each about 8ftx12ft, an aisle down the centre for guards to move in, a slab of corrugated iron on top of each cell, and a pipe with a funnel at groin level, in which to urinate; open to the elements; no walls, no true shade. Concrete floors. There had been buckets for defaecation, MC1 Dwight told us; but the prisoners had thrown the faeces at the guards. There was a communal shower, now crumbling — but the prisoners had not liked to shower in groups, naked.

The scene was being reclaimed by nature: vines and brambles were swallowing the wire, twisting around the doors. At 10am the humidity was so intense that sweat was pouring down our faces. The temperature was close to 40C. I went into a cell; grinding heat, drenching humidity, pure exposure to the sun. It was as if you were being cooked in a man-sized convection oven. “Look out!” shouted Petty Officer Dwight. “Banana rats!”

I looked up and shrieked, staggering to my feet: climbing across the wire walls and on to the roof of the cell was a 40lb rodent, with a long wiry tail, the size of a bulldog. Another one scurried along the base of the wall, a baby on its back; a third made itself at home in the undergrowth of the neighbouring cell — big, grotesque creatures with no fear. I imagined what it must have been like to try to sleep in that black heat, these animals slipping in and out of the cages with their great claws and teeth.

Behind the cages was the interrogation hut — a plywood shack painted with a red cross. A one-man cage stood near by. From Human Rights Watch reports and documents in Michael Ratner’s book Guantánamo: What the World Should Know, I knew that this was the notorious isolation cell. Prisoners in a detention camp are so cowed by the sight of the isolation cell and those held in it that they become compliant, since isolation is far more damaging psychologically to many prisoners than anything else.

“This is the isolation cell?” I asked Petty Officer Dwight. “Yes,” he said. Then he advised us that the detainees themselves had requested it. “They asked that other detainees who were disruptive and disturbing them be taken here for a ‘time out’. This was a ‘time-out’ area … if someone was to act up and they needed a ‘time-out’.”

It was the first of many times I would look at PO Dwight — a decent guy whose true passion was hairstyling — and wonder if he believed what he had been trained to say. But he gave this, and other “facts”, with a kind of innocence. He took us into the interrogation rooms. About 25 chairs were stacked in a corner — unusual chairs for a military setting. The seats were padded; the structure itself was made of a bamboo material; and, oddest of all, each of the arms of the chairs curled into an elaborate spiral. I leant in more closely: on each chair’s arms was a clear mark from what appeared to have been several layers of gaffer tape. I looked at the legs of the chairs, where a prisoner’s ankles would be: the same apparent gaffer-tape marks.

I went into the interrogation room. A table, two chairs. Gaffer tape remained in long strips on the plywood walls, not holding anything together, but positioned near by like an office supply; a pile of wadded-up grey gaffer tape remained on the floor.

PO Dwight reminded us of the scenes we had witnessed on TV of prisoners at Camp X-Ray being transported restrained, lying on stretchers — though no one had asked about it; the stretchers were, he said, for the wellbeing of the prisoners; to move them more easily. It was not, he was keen to assure us, that they had been sick, or hurt.

On to lunch at the mess hall. After lunch, we were taken on a bizarre tour of a baking facility, where an exuberant, smiling South Korean woman in a hairnet (“I love food service! I love my job!”) showed off trays of hot, fragrant buns and baklava. We heard for the third or fourth time from our military handlers that they, too, wished that they could have that delicious baklava, but that it was reserved for the prisoners’ discerning palates.

The food-service employee displayed a set table of detainees’ actual meals — meat, rice, sauce, salad, and those tasty buns and pastries. She pressed us to try them: the ground meat was spiced in a “culturally appropriate” Middle Eastern style and was not bad. Then she showed off a dozen fridges filled with fresh produce — strawberries, watermelon, maple syrup.

She politely refused to answer questions about what her role was, or who employed her. Private-sector contractors take care of the manual, building, cleaning and service work: to a casual observer, it is they, and not the military, who run Gauntánamo. Military men and women have, if minimally, to answer reporters’ questions; contractors do not even have to identify themselves. Contractors work in medical facilities; clear journalists’ video; deal with classified material; but they are answerable only to their employers. Their houses are far more luxurious, on the island, than are those of the military.

Military spokespeople must give answers, but the answers are maddeningly evasive. Can detainees get mail from their loved ones? I asked often. What if someone dies of natural causes, who notifies the family? If a loved one calls, can prisoners take the call? What happens to care packages from loved ones? What if a spouse asks to visit? Can I see the letter that tells her that she can’t? I put these questions “in writing” and asked them at least five times up the chain of command, and followed up multiple times on my return. Most of my questions were met — from higher-level “media specialists” such as Lieutenant-Commander Brook DeWalt or Major Haynie — with non-answers. “I don’t know, but I can ask for you.” “That is above my pay grade.”

The detainee handlers and the lawyers for detainees often flatly contradict each other. The handlers and my press kit claim that “Detainees get a call every couple of months” or quarterly, and that “they make phone calls on a regular basis — every few weeks”. But Kebriaei says that her clients can make calls “every six months if they are lucky”. “Detainees get mail all the time,” the handlers claim. “Care packages are destroyed,” says Kebriaei, who described the security-driven destruction of the orthopaedic shoes that her elderly client needed for his swollen feet.

And so, on we went in the afternoon, to Camps 5 and 6 — hulking state-of-the-art maximum-security prison edifices. But with a difference, as a smiling nameless blonde soldier said to us (name tags are stripped from uniforms when soldiers are inside the detention centres — the process is called “sterilising” — and the prisoners themselves are addressed by number, never by name). These soldiers looked as if they had been chosen from the coolest fraternity and sorority on campus. They were unusually physically attractive. Our guide, Lieutenant Fulghum, was a bright, charming Irishman with a twinkle in his eye and killer abs. When he greeted the twentysomething blonde soldier with the phrase, “Honour bound, Ma’am”, it was as good as a wink. (“Honor Bound to Defend Freedom” is the motto). “Honour bound, Lieutenant,” she smiled back.

As we moved down the corridor the weird intimacy of the place — which had, according to many detainees and reports such as Broken Laws, Broken Lives, a study by Physicians for Human Rights, been the scene of so much abuse — hit me.

There in front of me was a shower stall fully fronted with glass, facing into a public central hallway where military men and women passed regularly. It forced male prisoners daily into a state of public nudity, which is illegal according to US and international law.

The guards showed us a demonstration cell: it was spotless. Hooks folded down so that no one could hang himself; there was a toilet in a corner, a plastic wedge of a bed, and high-tech mechanical doors that shut of their own accord. No sun, no sightlines, no natural light. I noted the guards’ use of facemasks. “Facemasks are to help protect soldiers,” our tour guide said. “We do have assaults — spitting, throwing faeces and urine.”

Another diorama was set up in another cell, of “comfort items”. It looked unchanged from photos of Guantánamo that I had seen in the Bush era. Here was a Koran; toiletries; a padded mattress the thickness of a yoga mat, for those who “co-operated”; a thinner mattress, fewer “comforts”, for those who did not.

Opposite this room was yet another cell, which the military handlers were most proud of. “The TV room is a big change,” one of the handlers said. There was a big blue squishy sofa facing a nice big flat-screen TV. We were told that the detainees get to watch TV three hours a day; that their favourite TV show is The Deadliest Catch, about fishing; and that they also love Harry Potter. There was a tray table where prisoners could eat baklava while watching Harry Potter — and there, at the base of the sofa, were leg shackles, bolted to the concrete floor.

At the end of the hall I opened a door. Before me was an unused cell, packed halfway to the ceiling with hundreds of cans of Ensure, the liquid nutrient used in force-feeding. (Jen Nessel, of the Centre for Constitutional Rights, had told me that 24 detainees were being force-fed daily, in restraining chairs, because they were on hunger strike.) Lieutenant Fulghum came to get me, annoyed. “No one is supposed to go this far down the hall,” he snapped. I asked if anybody was on hunger strike. “We are not allowed to say. The medical staff handles that,” Lieutenant Fulghum said.

We were taken outside to Camp 6: there was a modest-sized recreation area surrounded by wire; and there they were, the causal heart of the whole monster. The detainees — Pakistani, Afghan, Iraqi and Yemeni men in their twenties, thirties and forties, wearing white T-shirts and khaki shorts — milled about; one or two threw a basketball out of range. The journalists were moved back down the hallway before they could see us, as if we were on safari. I asked if I could speak to them. My handler smiled. “No way.”

Our handlers took us out of the first structure to the grassy area between the buildings. In the second building, our handlers promised, we would see — since Obama had taken office — art classes; English classes. A library.

Outside, all around us, we saw a facility — one scheduled to be closed by December 2009 — under massive new construction: dozens of labourers were digging, surrounded by the grinding noise of building. A facility that Congress thinks it is discussing the “how” of closing — and that the President has claimed for six months is already slated for closure — was metastasising under our very eyes. When I asked about this I was told that the money had been allocated already and so it would be more expensive to stop construction than to keep it going. Through that open causeway of construction, the detainees in their central cage caught sight of us.

A sharp, sudden roar arose from the knot of men who spotted us. One of the prisoners looked straight at me and, his face twisted with an emotion that I could not read, screamed: “Go! Go!

“Why are they saying ‘Go?’” I asked.

The handler looked at me. The Muslim men in the cage were being managed by guards who were mostly African American, and who shouted in colloquial English to get their attention: “Yo! 289! Stop that!” “They learn English from the guards,” he explained. “They aren’t saying ‘Go’.”

What they had screamed out to us — across the greatest possible distance — was: “Yo!”

After these camps, our handlers showed us Camp 4, part of Camp Delta, used to house “more compliant” detainees. A dozen prisoners milled about in a bigger central space (“We call this ‘The Patio’ or ‘The Lanai’,” our handler said; the new talking points also refer to communal meals as “feast days”.) This cage, too, was surrounded by mesh and guards.

I asked a guard if he had formed any personal opinions about the men he was guarding. He paused for a moment. “They don’t complain. They are needy,” he said. I asked what he meant. “Emotionally needy,” he said. “It comes out as asking for things all the time — a certain brand of shampoo, extra blankets … it is a kind of dependency.” The guard was suddenly whisked away. We were then taken to a medical bay. In the white-on-white bay was a military nurse — her name removed from her uniform; she refused to identify herself. And a psychologist stood ready to brief us, next to yet another diorama. Before us was a display of Ensure fanned out across a medical tray table. The nurse, a pleasant, pretty white middle-aged woman with a soft hairstyle and a rueful smile, gestured at the display like a car showroom model. She gave us a rundown of how they feed the prisoners who were on hunger strike.

The nurse confirmed that some detainees were on hunger strike and said that they were fed forcibly “when they refuse to take feeding fluids”. But she didn’t call it force-feeding: “We call it ‘enteral feeding’,” she corrected me. “It goes down the nose and into the stomach.The patients are given a variety of flavours,” she said, going back to her infomercial-style presentation and gesturing at the cartons. “Strawberry, French vanilla, butter pecan — they have a choice. Our admiral did this for a week and he gained four pounds,” she said fondly.

I turned to the psychologist, a dark-haired man in his late forties, heavily muscled, with the same featureless area on his chest where name tags ordinarily are. He, too, refused to give me his name when I asked. I asked him what happens if a detainee is depressed. “We will go see them. They can request the Behavioural Health Unit.” He said that they get “talk therapy” if they need it. “I can empathise,” he said. “I see it as being very similar to people who are detained in any correctional facility.”

I pointed out to the man that perhaps his patients were “depressed and anxious” because of what they had suffered in Guantánamo. (It is now well documented that detainees were subjected to “stress positions”, sleep deprivation, waterboarding and extremes of hot and cold. But for those working at Guantánamo, the talking points on torture seem to be that “abuse may or may not have happened, there is no way to know”: A Department of Defence spokesman, Joe Della Vedova, had called the claim that prisoners had been tortured at Guantánamo, “a posture of the defence”; Petty Officer Dwight called it “a matter of opinion”. And Lieutenant-Commander DeWalt called it “an assertion” and “a point of view”.) I would subsequently discover that the day before I met the psychologist and the nurse, a detainee, Muhammad al-Hanashi, had died, in what the Joint Task Force Guantánamo press office reported as an “alleged suicide”. Six weeks later, that death still has not have been investigated by an independent body.

But Andrew Selsky, of Associated Press, interviewed Binyam Mohamed, a former prisoner who knew the young man; Mr Mohamed said that suicide was “totally out of character” for Mr al-Hanashi. He was, according to Mr Mohamed, a positive person who had been elected by the prisoners as their representative. Associated Press reported that on January 17, 2009, Mr alHanashi had been summoned to a meeting with Admiral David Thomas, Commander of JTF Guantánamo, and the head of the Guantánamo guard force; Mr al-Hanashi never returned to his cell, but was taken directly to the psychiatric ward. Elizabeth Gilson, a lawyer for a detainee who was also in the ward, knows more about what happened; but she can’t tell anyone; it is classified.

The JTF Guantánamo press release reporting the death would be terse; the details nonexistent; there would be little follow-up in the media — because there was nothing the Guantánamo press office would release that would give anything to go on. His body would, presumably, go somewhere — but Mr al-Hanashi himself would, during the days I was at Guantánamo, simply disappear.

here was a final stop: another trailer inside the same area as Camp Delta, where the Combat Status Review Board takes place. There were security cameras in the corners of the room covered with towels for, we were told, “classification reasons”. There Captain Dan Bauer, another handsome, dark-haired, pleasant man, explained the combat status review tribunal (CSRT) process. Twenty serious-looking high-ranking military men sat to our right watching his presentation to us. In the room was his desk: and two chairs facing it. I turned on my little Flip camera and started recording. Captain Bauer claimed in his talk that witnesses were brought in from outside“whenever reasonable”. I looked at the base of both chairs. Both chairs had shackles. The process had been “formed”, Captain Bauer explained, “to afford the detainees the opportunity to attend and provide witness statements that were relevant and readily available on behalf of their own defence”. The system, he repeated several times, sorts them into those who are “enemy combatants” and those who are “no longer enemy combatants”.

He explained that “about 520 detainees were designated as enemy combatants, the remaining 40 or so are no longer enemy combatants”. Why, I wondered, was there no category for “never been enemy combatants”? A Russian reporter with us asked if the detainees have access to telephones or the internet, so that they can communicate with people in their country, to get documents and witnesses.“No,” Captain Bauer said. “In that case what would happen is that there was something that — if there was a process by which if they felt made their case, then what the board would do is the Dept of Defence works with the Department of State to contact, er . . . the nations of detainees to try to make arrangements just to get whatever information — er, that they need.” He said that detainees are taken “in the heat of the battlefield” and that there they “put the pieces together”.

I asked if everyone in the room with the detainee was employed by the US Government. Captain Bauer confirmed that.

“As I understand the process,” the Polish reporter said, “it is the detainee alone against the US Government?”

“I don’t understand the question,” Captain Bauer replied.

I asked why there were two different chairs with shackles. Captain Bauer explained that if the detainee had another detainee as his witness, then he would be present. In sources provided by Human Rights Watch, Amnesty and the American Civil Liberties Union I had read that prisoners had been abused to provide false confessions implicating other prisoners, in just this setting, and that their “enemy combatant” status had been based on these false confessions. Testimony of witnesses who were not from within the prison system, so not subjected to coercion, was of course crucial for the review to be effective. Have there ever been any, or were any witnesses there, on the island right now?

“I can’t confirm whether there have or not.”

“Would you fly them here?”

“The Department of Defence, the Department of State, work with foreign agencies to make those arrangements.”

“Have they made those arrangements — ever?”

“Ummm … we afford the opportunity. Whether it’s been done or how often it’s been done, I don’t, I don’t know the answer.”

That afternoon we got to Guantánamo’s main street, which was like a main street anywhere in the US — McDonald’s, a Wal-Mart-style store: T-shirts for sale reading “It Don’t Gitmo Better Than This”, “Guantánamo Resort and Spa” and “Guantáanamo, Pearl of the Antilles”. You could get postcards of the banana rats.

Dinner was more salad displays; a pasta fiesta; a make-your-own sundae bar. It was like a food court in a really good mall. I tried to watch the sunset, under the scrutiny of my handler.

t six the next morning we awoke, dressed and convened outside, but — something was wrong. Petty Officers Dwight and Bennet were looking sadly at a flat tyre on the white van in the driveway that was to transport us. I tried my computer in the backyard for the hell of it, and to my surprise found that I got a thin thread of access to the outside world. A friend in Egypt had sent me a bombshell news clipping about Mr al-Hashani’s alleged suicide. While we had been at the medical bay, the Guantánamo press office had been scrambling to word a bland press release. The whole world knew about this death.

Only we, the journalists actually present at the scene, had had no idea. Petty Officers Dwight and Bennet eventually got us on wheels — taking us through the chic, upscale neighbourhoods of the contractors, with their barbecues, playstructures and verandas, through the boxy, hut-like quarters of the enlisted men and women — and back to the site of the military commissions.

There a new set of handlers showed us another sterile portable cell where detainees conferred with their lawyers. I asked our guide if there was lawyer-client privilege, or was the cell under surveillance? “I can’t answer that,” the guide said. (The defence lawyer Wells Dixon said that he always assumed that his conversations with his client were being listened in to.) We were taken in to the state-of-the art “courtroom” itself, where the ill-starred military tribunals meet. It is unbelievably expensive-looking: rows of gleaming wooden tables for the lawyers of the detainees — and seats with shackles at the base for the detainees at the end of each table; a raised dais where the “panel” — about 20 members of the military — sits facing the tables; and a raised platform in the front of the room, where the “judge” sits in the middle and on one side sits the detainee and on the other, the witness for the defence. Two contractors showed me around. One, “Mo”, showed me how you can put a $5 note under a light on a desk and it shows up onscreen behind the judge’s chair much magnified. I looked up: “In God We Trust”, the motto read.

Then he showed me the stop-motion button system on the audio feed that means that a censor can redact any information that comes out that he wishes to cut — so the press in the galley area behind glass at the back of the room, and down in the hangar, will never know what was redacted. The button system is in the same area as the “witness chair”, which seemed odd to me.

I asked if the chair had ever been used.

“Well … no,” he said. Not to his knowledge. Then he showed me again with great pride the live feed that was hooked up directly into the “courtroom” that could “transmit witness testimony into the courtroom from anywhere in the world”.

“Has it ever been used to transmit actual witness testimony?” I asked.

“No,” he replied. “But we have the capability.”

At the end of the trip, I asked Deputy Press Officer Major Haynie to respond to the statement that no witnesses had ever been called to the CSRT process. I did not get an answer. Five weeks later I asked the Pentagon spokesman Vedova for a response — no answer — and six weeks later I called Lieutenant-Commander DeWalt to confirm or deny that external witnesses had never been called to the CSRT process.

He said that the 9/11 families were coming down to witness motions at the military tribunals and they would be housed in townhouses or officers’ quarters. I asked if the families of defendants would be allowed to observe the motions as well. “I don’t believe there are defendants’ families on this visit.” I asked him if defendants’ families have ever been brought in. “Not to my knowledge,” he conceded. I asked DeWalt if, in the rebranded military commissions under Obama’s Administration, real witnesses will be flown in from outside the prison system. “It’s a fair question — I’ll get back to you,” he said. So far, he has not done so.

The next morning I was due to depart when word came that the one flight out was cancelled. Instead, I was to fly out on military transport. On the aircraft I chatted with those seated around me. To my right was a military doctor, who acknowledged that he had been flown to the island to attend to the post-mortem of the dead prisoner.

“Will there be an investigation?” I asked.

That was the investigation, he explained. When I later asked Lietenant-Commander DeWalt about the death of Mr al-Hanashi, he said that there was an ongoing investigation, and that he could not give “details of that situation — we are holding off on any speculation — because it would get in the way of investigators doing their job”.

Sitting behind the doctor on the aircraft was a genial young clergyman, Chaplain Mubarak, who turned out to be one of four Muslim chaplains in the Navy. He, too, had been flown in for the death — from Chicago. He had been tasked with “culturally sensitive” treatment of the corpse. He explained that in Islam only another Muslim could wash the dead man’s body. Had he been allowed to give spiritual support to Mr al-Hanashi’s fellow prisoners? No.

I made my way down the aisle to join another lawyer, whom I had met in the waiting room: George Clarke, a corporate lawyer with Miller and Chevalier, a big law firm in Washington. He works pro bono for his clients who are detainees. “I represent two of the 17 Uighurs that are still here. They were all cleared to go — by the Department of Defence, by the courts, by the military . . . innocent guys. But they have been here for seven years.”

To explain why the detainees are not permitted to speak to reporters, Clarke says, the Department of Defence is citing the Geneva Conventions. “Which is kind of interesting because their position has been that the Geneva Conventions don’t apply to these guys. If the Geneva Conventions applied they would be able to have a canteen from which to buy things, tobacco that they could have, a right to organise themselves and have a representative.”

“Remember,” Clarke says, “for a lot of these guys, there’s no evidence. The military said that of the 240 guys left here maybe 80 will eventually be ‘tried’ in some form. What about the rest? A lot of these people have been held because they stayed at a guest house or they had some supposed connections or affiliations [with al-Qaeda]. ‘Connections’ are like … someone’s brother was a member. Or allegedly a member. The whole world has a misconception that these guys were picked up on the battlefield. And a whole lot of them were not.

“This country is based on the rule of law,” Clarke continued quietly. “If you truly have no reason to hold someone, you can’t hold them. National security cannot override freedom.

“At the end of the day our freedom is more important. If we lose our freedom — what are we trying to secure?”

What, indeed?

We landed, the lights of Washington now twinkling brightly below us, but the answer still unclear.

2 comments July 28th, 2009

Will the American Psychological Association finally renounce the Nuremberg Defense?

The long-standing struggle within the American Psychological Association over involvement of psychologists in potentially abusive national security interrogations is heating up again, this time with a dispute over its ethics code. In 2002, the APA added the infamous standard 1.02 to its code. This standard allows psychologists to ignore the other provisions of the code when it conflicts with “law, regulations, or other governing legal authority.”

With its echoes of the universally reviled Nuremberg Defense – “I was just following orders” – of the Nazi doctors and others tried for war crimes after World War II, this standard has been deeply disturbing to many APA members and others. This code is binding upon all APA members and upon most licensed psychologists in the country as most, perhaps all, states require those receiving licenses to adhere to the APA code. Standard 1.02 built a loophole into the ethics code that allowed any unethical behavior by those following military or other governmental orders.

Interestingly, in an unenforceable aspirational section of the ethics code, the wording is different:

“If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing authority in keeping with basic principles of human rights.” [Emphasis added.]

After World War II, as the allies planned the prosecution of Germans for crimes committed during the war, they anticipated the possibility that defendants would use the defense that they were “just following orders” and were thus not morally culpable for their actions. The rules governing the Nuremberg trials stated:

“The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

This defense of following orders has been known ever since as the “Nuremberg defense” and has been regularly rejected in both U.S. and international law.  In fact, the very term “Nuremberg defense” is often derided as the attempt of scoundrels to avoid moral and criminal responsibility.

In the wake of reports of psychologists aiding the Bush regime program of torture and detainee abuse, having the Nuremberg Defense in the APA’s ethics code took on added significance. Potentially, it could allow psychologists involved in detainee abuse or torture to escape future liability for these abuses  before the APA or state ethics committees.  Further, since violating professional ethics could be introduced as evidence in the unlikely possibility of future war crimes trials, 1.02 could provide some protection in potential future trials.

Human rights advocates within the APA have experienced revulsion at an ethics code that is effectively gutted by including the Nuremberg Defense. As Ken Pope, a former Chair of the APA Ethics Committee who has since resigned from the association wrote in a statement sent to thousands of psychologists:

“Nuremberg’s message of inescapable ethical responsibility and accountability came at an unfathomable price. It should never be set aside and forgotten, especially in a profession’s formal statement of its ethical values.”

The APA Council directed as early as 2005 that the association’s Ethics Committee evaluate and recommend an alternative to this standard; some discussions were held, but year after year, no action was taken. At its August 2008 meeting, Council again directed the Ethics Committee to make a recommendation regarding changes that would resolve the discrepancy between the aspirational “in keeping with basic principles of human rights” and the absence of any human rights restriction to following orders in the enforceable section of the code.  This recommendation was to be presented to the August 2008 Council meeting.

During the year there was an open comment period during which over 80 psychologists posted comments on the APA web site. Interestingly, a number of military psychologists objected strongly to changing this standard. Among these were Morgan Banks and Larry James, both of the APA’s infamous PENS [Psychological Ethics and National Security] task force that, dominated as it was by military psychologists, gave the stamp of approval to psychologists participating in Bush-era interrogations.  Also among those against changing 1.02 was Debra Dunivin, a Former BSCT psychologist at Guantanamo and wife of a former top APA official, Russ Newman, who played a major behind the scenes role in guiding the PENS task force. All three of these commentators served in chains of command that have been accused of abuses.

Joining the military psychologists in rejecting change were virtually all of the most powerful committees within the APA’s governance structure. Thus, the powerful Committee on Legal Issues, the Board for the Advancement of Psychology in the Public Interest, the Board of educational Affairs, the Board of Professional Affairs, and the Board of Scientific Affairs recommended against any change in 1.02. several, more peripheral committees, including the Committee on Aging, the Committee on Disability Issues in Psychology, the Committee on International Relations in Psychology, and the Committee on Animal research and Ethics did support change.

One month before this August’s Council meeting, the Ethics Committee made its recommendation. After four years of deliberations, they recommended no change in standard 1.02, but, rather, an additional lengthy period of discussion.. They did issue an apparently hastily-written statement that they would not accept a defense of “following orders” to ethics violations involving torture. This statement, however, is totally inadequate for several reasons:

  • First, it is of dubious legality, as it directly conflicts with the code (1.02) itself.
  • Second, such a statement is not binding on future Ethics Committees.
  • Third, it has no status with state licensing boards that adopt the APA code.
  • Finally, and most important, there are many other human rights abuses that may be authorized by law or orders that the EC statement will not cover.

The Ethics Committee recommendation follows on the heels of a letter from the APA Board on the torture-interrogations issues that was deemed woefully inadequate by association critics and activists seeking change. This Board letter recently was criticized in an Open Letter from a broad range of psychological, health, and human rights organizations. This Letter called for five actions by the APA, including change in 1.02 and other problematic sections of the ethics code. In particular, it calls upon the APA to:

“Develop a clear and rapid timetable to remove Sections 1.02 and 1.03 [the `Nuremberg defense' of following orders] from the APA Code of Ethics. [We note that the APA Ethics Committee has stated that they will not accept a defense of following orders to complaints regarding torture; this statement is a welcome improvement but it is clearly inadequate as it is not necessarily binding on future committees nor does it cover abuses falling under the category of cruel, inhuman, or degrading treatment.] Revoke the equally problematic Section 8.05 of the Code, which dispenses with informed consent `where otherwise permitted by law or federal or institutional regulations,’ and Section 8.07, which sets an unacceptably high threshold of `severe emotional distress’ for not using deception in the ethics of research design.”

The Ethics Committee recommendation rejects this and many other calls for change. If Council concurred with this recommendation, the Nuremberg Defense wouldl stay in the code for at least  the many additional years of deliberation called for by the Committee.

The Ethics Committee’s recommendation was met with withering criticism from members. After initially refusing to respond to critics, the APA President and Board, sensing a pending PR disaster, responded positively to a motion from the members of Council who wrote the 2008 resolution directing the Ethics Committee to act by this august. Now these resolution Movers, as they were know, the President and the Board have united behind another six month delay, directing the Ethics Committee to recommend changes in 1.02 by the February Council meeting. Notice that they entrust this important task to the same Ethics Committee that only weeks before concluded four years of effort by recommending no change.

In a typical APA fashion, the Ethics Committee suddenly saw the wisdom of what they had just rejected.  Presumably, those committees that had weighed in heavily against change will, for the time being at least, miraculously discover its value.The association is set for another long wait to see if this promise of change is any more sincere than any of the others over the last our years.

Whether or not it ultimately gets reversed, the Ethics Committee’s embrace of the Nuremberg Defense also was taken by many as yet another sign that the loyalty of the APA leadership to the military-intelligence establishment is greater than its loyalty to its members. After all, last September those members decisively rebuked the APA leadership by passing by a 59% to 41% margin a referendum declaring that psychologists, whether involved in interrogations or treatment of detainees, do not belong in detention centers violating international law or the Constitution:

“unless they are working directly for the persons being detained or for an independent third party working to protect human rights”

[There is an exception for those psychologists treating US military personnel.]

The APA leadership, while nominally acknowledging the passage of the referendum and placing it “in effect” have treated it as an abstract statement with no direct action implications. They have undermined the clear sense of the voting members that psychologists do not belong at Guantanamo or other sites.  This leadership has stymied efforts to apply the referendum to any actually existing detention facility, such as Guantanamo or Bagram, where indefinite detention without trial and other violations of human rights are still in effect.

In response to the disappointing Ethics Committee recommendation, leading to, at best, additional delay in removing the Nuremberg Defense from the Ethics Code, as well as the failure to fully implement the member-passed referendum,  activists are discussing how to respond to what they view as an unacceptable bending of professional ethics to the wishes of the military-intelligence establishment. Some  members are contemplating resigning, joining many who have previously taken that step. Others may hold their breathe and see if, this time, perhaps, APA leaders really mean change. Meanwhile there has been no action on the other major actions, including other essential ethics code revisions, recommended in the Psychologist/Human Rights groups Open Letter:

“1. Fully implement the 2008 referendum as an enforceable section of the APA Code of Ethics. This entails a public announcement that APA policy and ethical standards oppose the service of psychologists in detention facilities at Guantanamo Bay Detention Camp, Bagram Air Base, CIA secret prisons, or in the rendition program.

“2. Annul the June 2005 PENS Report due to the severe and multiple conflicts of interest involved in its production.

“3. Bring in an independent body of investigative attorneys to pursue accountability for psychologists who participated in or otherwise contributed to torture or cruel, inhuman, or degrading treatment. APA should also: (a) clarify the status of open ethics cases and (b) remove the statute of limitations for violations involving torture or cruel, inhuman, or degrading treatment, so as to allow time for information on classified activities to become public.

“4. Develop a clear and rapid timetable to remove Sections 1.02 and 1.03 [the `Nuremberg defense' of following orders] from the APA Code of Ethics. [We note that the APA Ethics Committee has stated that they will not accept a defense of following orders to complaints regarding torture; this statement is a welcome improvement but it is clearly inadequate as it is not necessarily binding on future committees nor does it cover abuses falling under the category of cruel, inhuman, or degrading treatment.] Revoke the equally problematic Section 8.05 of the Code, which dispenses with informed consent `where otherwise permitted by law or federal or institutional regulations,’ and Section 8.07, which sets an unacceptably high threshold of `severe emotional distress’ for not using deception in the ethics of research design.

“5. Retain an independent investigatory organization to study organizational behavior at APA. Due to potential conflicts of interest, independent human rights organizations should be enlisted to select this investigatory entity. The study should address, among other things, possible collusion in the PENS process and the 2003 APA-CIA-Rand conference on the Science of Deception, attended by the CIA’s apparent designers of their torture program [James Mitchell and Bruce Jessen] during which “enhanced interrogation” techniques were discussed. The study should explore how the APA governance system permits the accumulation of power in the hands of a very small number of individuals who are unresponsive to the general membership. It should also propose measures to return the APA to democratic principles, scientific integrity, and beneficence, including restructuring for greater transparency and the assimilation of diverse viewpoints.”

Until these five actions are undertaken, the APA will still not have extricated itself from its close engagement with the Dark Side.

1 comment July 26th, 2009

Are SERE psychologists still active in interrogations?

Jeffrey Kaye has found a document suggesting that SERE psychologists are still involved in detainee interrogations with Special Forces, despite claims to the contrary:

An extraordinary piece of information lies buried in a June 15, 2009 Air Force Special Operations Command Instruction (48-101) on “Aeromedical Special Operations.” This document ostensibly “establishes Mission Qualification and Mission Ready clinical medical training requirements for AFSOC operational medical personnel,” and notes “compliance with this publication is mandatory.”

While the Instruction appears to apply only to U.S. Air Force support by medical personnel, Section 5.7, in the chapter for “Medical Operations,” presents something totally different. This section describes the functions of Special Forces Psychologists (SOFPSY), who are composed of “those SERE and Aviation qualified psychologists assigned to AFSOC operational units.” These psychologists are now instructed to provide “psychological oversight of battlefield interrogation and detention,” among other functions.

The Instruction details the functions of Special Operations Psychologists, and it’s hard to believe they are talking about medical issues here. An in-depth look at what the document actually says is in order (bold emphases added):

5.5.2.1. The primary responsibility of the SOFPSY is to support AFSOC operational units and missions through battlefield interventions and consultation, and in-garrison preparation for, and reconstitution from, combat operations. They do this by providing psychological consultation and services to include:

5.5.2.1.1. Unit and individual performance enhancement.

5.5.2.1.2. Unit climate assessments.

5.5.2.1.3. Personnel selection programs.

5.5.2.1.4. Psychological oversight for SERE training.

5.5.2.1.5. Special training programs.

5.5.2.1.6. Post-mishap and combat trauma recovery and return to duty.

5.5.2.1.7. Reintegration of recovered personnel, after isolation in hostile territory.

5.5.2.1.8. Human factors expertise for mishap investigations and prevention activities.

5.5.2.1.9. Consultation to Influence Operations.

5.5.2.1.10. Adversary profiling.

5.5.2.1.11. Psychological oversight of battlefield interrogation and detention.

5.5.2.2. In garrison, SOFPSYs are usually assigned to an operations unit at the Group level. When deployed, SOFPSYs serve in unit or battle-staff positions to facilitate their consultation and liaison roles. Most services provided by the SOFPSY fall into the categories of consultation and training, and are not clinical treatment interventions. When airmen require clinical treatment services, the SOFPSY primarily serves as liaison between commanders, unit personnel and the appropriate medical service provider. Typically, they will refer individuals needing clinical mental health evaluation and/or medical treatment to medical treatment facilities.

Special Operations Command clearly doesn’t intend to use SERE psychologists for medical or clinical purposes. This blurring of medical and operational roles in a memorandum meant to document the roles of medical personnel is typical of the way in which the torture program, which utilizes medical and psychological personnel, has tried to hide its primary activities.

July 26th, 2009

Conyers calls for prosecution + investigative commission

Rep. John Conyers has called for a combined criminal prosecution & Commission of Inquiry approach to Bush administration crimes:

Rep. John Conyers (D-MI) told the National Press Club Friday that both avenues should be pursued because a criminal investigation would be done in private, while a blue-ribbon “9/11-type” panel would work publicly and would create a public record of the Bush administration’s actions.

Makes sense to me

July 26th, 2009

Psychologist Pelton-Cooper writes the APA President on the Nuremberg Defense

The  American Psychological Association has been roiled by controversy regarding the association’s embrace of the Nuremberg ["just following orders"] Defense in its ethics code. [See Scott Horton's brief introduction to the issue.] While there are new developments I will be posting about shortly, I wanted to post one of the most articulate letters of protest written to APA President James Bray on this issue. It is psychology Mary Pelton-Cooper and well expresses the passion and disgust many psychologists feel in response to the endless APA prevarications on professional ethics and the service psychologists provided to government detainee abuse:

Dr James H Bray
American Psychological Association President,

July 17, 2009

Dr Bray,

I am writing as a dues-paying member of APA, to express my great disappointment about the ethics committee’s recent recommendation to retain 1.02 in the ethics code. With this move the APA EC [Ethics Committee] fails again to protect the integrity of our code of ethics. In 2002 the Basic Principles were labeled as “aspirational only” and a statement was added to serve as a complete disclaimer for any responsibility to adhere to the principles. This is contrary to the function and purpose of professional codes of ethics. It is the kind of thing a corporation would do, not the kind of move that is compatible with the fiduciary responsibilities of professional associations.

By adding 1.02 the APA leadership allows for adherence to laws that conflict with ethical standards, thus undermining the integrity of professional conduct. Unfortunately as we are all aware, law that violates human rights can be generated in this country and other countries almost overnight.

Professions are given autonomy and internal policing power to regulate themselves because they have the needed esoteric knowledge and the moral commitment to the value the profession serves. The APA does not exercise the proper amount of moral autonomy when it minimizes the extent of psychologists’ involvement in state-sanctioned abuse (disregard for principle 1). The recent admissions by APA are embarrassingly inadequate. The public is already well aware of the APA support for interrogation methods that are not consistent with good science or with professional values (disregard for principle 2).

I appreciate that the code of ethics was originally developed by the APA ethics committees, and I appreciate that APA officials have made a number of valuable additions to our code over the years. I teach an undergraduate introductory course on ethics and practice of psychology in which I teach my students that this process generated a sound code of ethics. However, now I must explain to the students how and why the APA leadership has failed to protect the code of ethics from pressures to disregard universal morals and has therefore compromised the purpose of the code.

In 2002 the ethics committee chose to put law above moral values. The EC has refused to recommend a reversal of that action in spite of mounting sound arguments against 1.02. Based on the principles of moral philosophy, these actions are evidence of incompetence and/or a concerted effort to alter the purpose of our code. We have a duty to serve society as a profession, but APA is functioning more like a union and/or a corporation aiming to protect the members rather than furthering our fiduciary responsibilities to the public.

Law is a low level tool for implementing moral values, and sometimes laws are poorly conceived and even immoral. When there is a conflict between laws and the code, the moral values in the code should trump the law. When this happens a crisis is raised for the professional. However, 1.02 eliminates the dilemma and allows psychologists to collude with potentially unjust legal practices. It is a mistake for the APA to place this low level tool above moral duty the professional has to society and to the values that govern a just society. Thus the APA has failed to serve society and it has failed to serve the hundreds of members who have objected to these ethical failures.

I struggle with how I will explain this colossal failure to my young students whose goal is to serve society as clinical psychologists. The APA Director of Ethics has failed to write a thorough nuanced analysis of the ethical dilemmas involved in the design of interrogation techniques. As a member I suspect he has orders to minimize this ethical dilemma rather than thoroughly analyze it. One of the officers in my state organization explained to me that employees like Stephen Behnke “do not get a vote [on APA policy].” This is of course is an outrageous situation for an ethics director. Perhaps his weak showing is due in part to his lack of a graduate degree in applied ethics.

Since I can only speculate about the rationale for the absence of such a thorough analysis, I have decided to give our ethics director’s failed assignment to my undergraduates. Perhaps they can develop a sense of hope for a brighter future when they find that ethics is really not terribly confusing, and that the current failures are not due to the difficulty of the task.

I believe the failures described above are due to dysfunction in the organizational structure. APA has become a corporation and a business club for the promotion of psychology, and it has ceased to be the professional association for psychology that protects the public by serving as a moral guide for the profession. Unelected, unaccountable officials are setting significant policy trends without regard for the outrage from the psychologists they are obligated to serve. How did these positions evolve as a corporate power structure that is immune to member protests? APA is not General Motors or the United Auto Workers. APA cannot fire large groups of psychologists and assume the right to motor on, guided by the private ambitions of unelected leaders and CEOs. APA cannot ignore the large groups of psychologists who have resigned for ethical reasons. Please give your full attention to this critical turning point. The hundreds of psychologists who have stopped paying dues and/or have dissociated themselves from APA are not conveniently discarded. They are firing you. The APA lacks credibility without the approval of its members.

The time has come to ask the APA leadership to step down as the guardians for the professional association for psychology. The current administrative structure of APA has harmed the national and international reputation of psychology and it has tarnished the reputation of each individual psychologist by associating each of us with the shame of this moral failure. This harm will translate into public mistrust for psychologists, and the public mistrust will turn patients away from our offices and into the offices of the master’s level practitioners who are not associated with this disgrace. Thus the harm done by the APA EC will affect the quality of psychological services to the public.

No need to respond, Dr Bray. I am already aware of your disregard for this position. The intent of this letter is to document the harm.

Mary Pelton-Cooper, Psy.D.
mpeltonc@nmu.edu
Licensed Psychologist
Associate Professor
Marquette MI, 49855

2 comments July 25th, 2009

Tech Support 1.0

[H/t AmericaBlog]

July 25th, 2009

Call for reform of military medical ethics

Leonard Rubenstein and George Annas have a new piece in The Lancet calling for reform in medical ethics in the US military in general and at Guantanamo in particular. The article is available here. See a Raw Story article on it here.

Here is a press release from The Lancet:

MEDICAL ETHICS AND GUANTANAMO BAY: TIME FOR REFORM

A Viewpoint in this week’s Lancet proposes reforms at the Guantanamo Bay detention centre, with respect to medical ethics and the medical status of detainees. The Viewpoint highlights the problem of the US Armed Forces investigating themselves, and is written by Professor George Annas, Boston University School of Public Health, Boston, MA, USA and Leonard Rubenstein, Physicians for Human Rights, Cambridge, MA, USA and United States Institute of Peace, Washington, DC, USA.

The Viewpoint refers to a report commissioned by US President Barack Obama to investigate current practices in Guantanamo Bay. The report was led by Admiral Patrick Walsh, the Vice Chief of Naval Operations. The Viewpoint raises a number of concerns regarding the report’s approval of continued use of medical personnel to force-feed detainees engaged in hunger strikes, among them flouting of ethical standards that prohibit physicians from force-feeding competent prisoners; use of a classified medical protocol to authorise force-feeding; non-physicians (the base commander) making treatment decisions, and use of restraint chairs.  It also notes that Admiral Walsh’s team failed to challenge the authorisation by the Administration of former President George Bush of participation of physicians and other health professionals in interrogation of detainees, despite international and domestic ethical standards condemning the practice.

Admiral Walsh’s team concluded that “the scope, quality and documentation of care provided to detainees are similar and in most cases identical to care received by US Armed Forces personnel”, and that the mental health of detainees compared favourably to inmates in U.S. domestic prisons.  Yet Walsh’s team did not conduct independent medical examinations of detainees and the Department of Defense has refused any independent medical or psychological assessments of detainees there.  Independent examinations of released detainees show severe psychological damage from the experience of detention.

The authors say: “In conclusion, the difficulties posed when the Department of Defense investigates itself are evident in the report by Walsh’s team. This report does not vindicate the many military physicians and psychologists who acted with honour and integrity. The quandary of dual loyalty in military medicine is not addressed by the report. The issue of how to determine when, if ever, military physicians need not follow basic principles of medical ethics is not confronted in the report. Three actions are needed. First, the Department of Defense should abandon practices, including employing physicians to support interrogation and force-feeding of competent individuals on hunger strike, that are inconsistent with medical ethics. The rule in the US military should be that military physicians never have to compromise medical ethics to serve their country. Second, the Department of Defense should permit independent medical reviews of the physical and mental health conditions of the prisoners at the detention centre in Guantanamo Bay and other US military prisons. Third, an independent commission should be established to review not only the entire regime of detention and interrogation of terror suspects by the USA, with emphasis on the role of physicians and psychologists, but also the Department of Defense’s protocol for management of prisoners on hunger strike.”

Professor George Annas, Boston University School of Public Health, Boston, MA, USA. T) +1 617 638-4626   E) annasgj@bu.edu

Leonard Rubenstein, United States Institute of Peace, Washington, DC, USA. T) +1-703-217-2991 E) lrubenstein@usip.org

For full Viewpoint, see: http://press.thelancet.com/vpguantanamo.pdf

July 24th, 2009

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