Psyche, Science, and Society

PHR: Health professionals’ involvement in torture even worse than we knew

Physicians for Human Rights has issued a new report — Aiding Torture: Health Professionals’ Ethics and Human Rights Violations Demonstrated in the May 2004 CIA Inspector General’s Report — analyzing  the roles of health professionals, psychologists included, in the CIA’s torture program, as revealed in the CIA Inspector General’s report released last Monday. Here is the PHR press release:

PHR Analysis: CIA Health Professionals’ Role in Torture Worse Than Previously Known

Cambridge, MA — The extent to which American physicians and psychologists violated human rights and betrayed the ethical standards of their professions by designing, implementing, and legitimizing a worldwide torture program is greater than previously known, according to a report by Physicians for Human Rights (PHR).

A team of PHR doctors authored the new white paper, Aiding Torture: Health Professionals’ Ethics and Human Rights Violations Demonstrated in the May 2004 Inspector General’s Report. The report details how the CIA relied on medical expertise to rationalize and carry out abusive and unlawful interrogations. It also refers to aggregate collection of data on detainees’ reaction to interrogation methods. PHR is concerned that this data collection and analysis may amount to human experimentation and calls for more investigation on this point. If confirmed, the development of a research protocol to assess and refine the use of the waterboard or other techniques would likely constitute a new, previously unknown category of ethical violations committed by CIA physicians and psychologists.

“Medical doctors and psychologists colluded with the CIA to keep observational records about waterboarding, which approaches unethical and unlawful human experimentation,” says PHR Medical Advisor and lead report author Scott Allen, MD. For example, “Interrogators would place a cloth over a detainee’s face to block breathing and induce feelings of fear, helplessness, and a loss of control. A doctor would stand by to monitor and calibrate this physically and psychologically harmful act, which amounts to torture. It is profoundly unsettling to learn of the central role of health professionals in laying a foundation for US government lawyers to rationalize the CIA’s illegal torture program.”

The Inspector General’s report documents some practices — previously unknown or unconfirmed — that were used to bring about excruciating pain, terror, humiliation, and shame for months on end. These practices included:

• Mock executions;
• Brandishing guns and power drills;
• Threats to sexually assault family members and murder children;
• “Walling” — repeatedly slamming an unresponsive detainee’s head against a cell wall; and
• Confinement in a box.

“These unlawful, unethical, and ineffective interrogation tactics cause significant bodily and mental harm,” said co-author and PHR Senior Medical Advisor Vincent Iacopino, MD, PhD. “The CIA Inspector General’s report confirms that torture escalates in severity and torturers frequently go beyond approved techniques.”

“The required presence of health professionals did not make interrogation methods safer, but sanitized their use, escalated abuse, and placed doctors and psychologists in the untenable position of calibrating harm rather than serving as protectors and healers. The fact that psychologists went beyond monitoring, and actually designed and implemented these abuses – while simultaneously serving as ’safety monitors’ – reveals the ethical bankruptcy of the entire program,” stated co-author Steven Reisner, PhD, PHR’s Psychological Ethics Advisor.

“That health professionals who swear to oaths of healing so abused the sacred trust society places in us by instigating, legitimizing and participating in torture, is an abomination,” states co-author Allen Keller, MD, Director of the Bellevue/NYU Program for Survivors of Torture. “Health professionals who aided torture must be held accountable by professional associations, by state licensing boards, and by society.  Accountability is essential to maintain trust in our professions and to end torture, which scars bodies and minds, leaving survivors to endure debilitating injuries, humiliating memories and haunting nightmares.”

PHR has called for full investigation and remedies, including accountability for war crimes, and reparation, such as compensation, medical care and psycho-social services. PHR also calls for health professionals who have violated ethical standards or the law to be held accountable through criminal prosecution, loss of license and loss of professional society membership where appropriate.

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To download PHR’s Aiding Torture, visit http://physiciansforhumanrights.org/library/news-2009-08-31.html.

Since 2005, PHR has documented the systematic use of psychological and physical torture by US personnel against detainees held at Guantánamo Bay, Abu Ghraib, Bagram airbase, and elsewhere in its groundbreaking reports, Break Them Down, Leave No Marks, and Broken Laws, Broken Lives.

August 31st, 2009

Kaye continues reporting on Gelles interrogation of Daniel King

In a new article, psychologist Jeffrey Kaye continues his reporting on the case of sailor Daniel King and his interrogation by psychologist Michael Gelles as well as on the apparent inaction by the American Psychological Association in response to an ethics complaint. This time Kaye reports on his interview with King’s JAG attorney, Robert A. Bailey. The accusations made by King’s attorneys Jonathan Turley and Bailey about Gelles’ and the APA’s behavior are quite serious and require serious investigation:

Broken Faith: How a Navy Psychologist Drove A U.S. Prisoner to Attempt Suicide

By Jeffrey Kaye

Los Angeles attorney Robert A. Bailey, formerly a military JAG officer, and one of the lawyers in the Daniel King case, spoke to me a few weeks ago in some detail about the controversial King interrogation. Bailey, now on the Board of the Center for Victims of Torture, described to me how the abusive interrogation King endured, and the betrayal of the military psychologist he thought would help him, led King to a suicidal breakdown.

In articles last month, both at FireDogLake and at The Public Record, I reported on the role of Naval Criminal Investigation Service (NCIS) Chief Forensic Psychologist Michael Gelles in the abusive treatment of Chief Petty Officer King, who was forced into giving a false confession of espionage. The story made waves in psychology circles, and was picked up by Truthout and Naomi Wolf, among others.

The story had resonance for anti-torture activists, as Dr. Gelles is a primary spokesperson for the presumed ethical use of psychologists in national security interrogations, and was a prominent member of a 2005 American Psychological Association (APA) task force on the issue. That task force was widely seen as rubber-stamping the military’s position, and backing the use of psychologists in interrogations at Guantanamo and elsewhere, interrogations later labeled as torture.

King was a cryptanalyst and chief petty officer with twenty years in the Navy when he was held on suspicion of espionage after producing an inconclusive, or “no opinion” polygraph result in September 1999. He was held without charges and interrogated for 29 straight days. He produced a “confession” after seven days of 12 to 19 hour interrogation, sleep deprivation, threats, and 24-hour a day constant surveillance. He quickly recanted this confession, and the interrogation continued, ending after 29 days. King was moved to the brig at Quantico Marine Corps base in Virginia, where he remained in a six by nine foot cell for another 500 days.

Until now, it wasn’t clear why NCIS finally abandoned the interrogation. The interview with Robert Bailey clears up what happened, and the revelation is shocking.

The Gelles Interview and Its Aftermath

During the 29 days of interrogation, NCIS agents had ignored King’s pleas for an attorney. When he broke down crying, and voiced suicidal thoughts, complaining that he was losing contact with reality, agents apparently relented when King asked to see a mental health therapist. It was about three weeks into the interrogation, and King was taken to see Dr. Gelles.

As previously reported, the interview with Gelles was videotaped without the approval of King. Two NCIS agents sat in the room. One was a woman agent who Bailey believed had often been utilized to play “good cop” and provide feminine attention to the divorced and lonely Daniel King. The sleep-deprived King told Gelles he couldn’t tell what was real anymore. Agents had told King he had been found lying on his polygraph tests, which itself was a lie that Gelles did nothing to dispel. King asked Gelles to hypnotize him or give him truth serum, so he could figure out what was real.

According to Bailey, Gelles told King that he would feel better if he confessed. King’s civilian attorney, Jonathan Turley, told a congressional committee how Gelles represented himself as “the doc,” ignored King’s suicidal statements, and “told King to give corroborating evidence as a precondition for the hypnosis that King sought to clear his doubts as to any espionage.”

(In full agreement with King’s JAG attorneys, Turley later filed an ethics complaint against Gelles with the APA, which declined to accept it. At the APA convention in Toronto last week, Turley told an audience that Gelles’s behavior was the most egregious case of medical ethics violation he had ever experienced.)

Bailey first met Dan King in the brig at Quantico, only a few weeks after the Gelles interview. Bailey described how King told him that after the Gelles meeting he became more despondent. King had gone to Gelles for help and therapy, and was only met with another demand to confess. He subsequently became “less certain what was real.” His mental condition deteriorated. He had lost faith in people.

Chief Petty Officer King was a man in his 40s, a career Navy man, falsely accused of espionage, the penalty for which could be death, kept from sleeping more than an hour or two at a time for days on end, holed up in various hotel rooms for weeks, and subjected to near constant interrogation. According to Bailey, King could not stand the pressure anymore.

Approximately a week after his attempt to get psychological help, and — as Bailey explained King told him — “distraught” with the duplicity of “doc” Gelles, King grabbed a knife found in the residence hotel where they were holding him and tried to stab himself in the stomach. Agents quickly grabbed him and prevented King from harming himself. But the NCIS agents worried they could no longer monitor their prisoner under the current circumstances, and he was removed from their custody and placed in the brig.

Once King was put in the brig, he was finally allowed to see a lawyer. When Robert A. Bailey, a young JAG attorney with only six months experience, was the first person assigned to King’s defense, he found his client to be “a wreck, just incomprehensible.” The defense team spent weeks just trying to piece together the story of what had happened to him.

The young military attorneys struggled to defend their client against an overbearing and obstructionist prosecution and Navy bureaucracy. The fears the attorneys had for themselves and their careers were aired in May 2000 court hearing at the time before the U.S. Court of Appeals for the Armed Forces, and can still be viewed via C-SPAN video (warning: the Flash video has garbled sound for the first 14 minutes). Coincidentally, the  Chief Judge on the Appeals panel was Susan Crawford, who later was appointed Convening Authority for the military commissions at Guantanamo.

According to Bailey, the two military attorneys in the case realized early on that they would have to decide if they “were going to stick around for a career in the Navy,” or work diligently for their client. Luckily for Daniel King, they made the right choice.

Today, King works at an agency helping veterans access their benefits. He stays in contact with his former attorneys, and reminds them each year how grateful he was that they stood up for him and restored his faith in people. Meanwhile, the APA Ethics Director at the time of the referral of charges against Gelles, Dr. Stephen Behnke, whose office refused to investigate the serious charges noted above, retains his position.

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Jeffrey Kaye, a psychologist living in Northern California and a regular contributor The Public Record, has been blogging at Daily Kos since May 2005, and maintains a personal blog, Invictus. E-mail Mr. Kaye at sfpsych at gmail dot com.

1 comment August 31st, 2009

Onion: Is Using a Minotaur to Gore Detainees a Form of Torture?

Is Using A Minotaur To Gore Detainees A Form Of Torture?

August 30th, 2009

Greenwald on Washington Post’s latest torture defense

I’m back from a week off and trying to catch up with all the material I’ve missed.  For my first post-return post, why not Glenn Greenwald on the latest torture apologetics from the Washington Post. The Post is interesting. They do great reporting. And then they go publishing this articl, which, absent all evidence, claims that torture worked wonders for Khalid Sheik Mohammed, turning the brutish terrorist into a lecturer on Greek philosophy! Like all such articles there is no consideration of alternative evidence, nor is their any examination of potential bias from the sources. After all, a paper that reported on those dangerous WMDs in Iraq ha no need to be cautious about [ex-]officials trying to spin their story:

The Washington Post’s Cheney-ite defense of torture

By Glenn Greenwald

(updated below - Update II)

If anyone ever tells you that they don’t understand what is meant by “stenography journalism” — or ever insists that America is plagued by a Liberal Media — you can show them this article from today’s Washington Post and, by itself, it should clear up everything.  The article’s headline is ”How a Detainee Became An Asset — Sept. 11 Plotter Cooperated After Waterboarding” — though an equally appropriate headline would be:   ”The Joys and Virtues of Torture — how Dick Cheney Kept Us Safe.”  I defy anyone to identify a single way the article would be different if The Post had let Dick Cheney write it himself.  The next time someone laments the economic collapse of the modern American newspaper, one might point out that an industry which pays three separate reporters (Peter Finn, Joby Warrick and Julie Tate) and numerous editors to churn out mindless, inane tripe like this has brought about its own demise.

Here’s the essence of the article, presented — in terms of tone, length and placement — as a Vital New Scoop:

After enduring the CIA’s harshest interrogation methods and spending more than a year in the agency’s secret prisons, Khalid Sheik Mohammed stood before U.S. intelligence officers in a makeshift lecture hall, leading what they called “terrorist tutorials” . . . .

These scenes provide previously unpublicized details about the transformation of the man known to U.S. officials as KSM from an avowed and truculent enemy of the United States into what the CIA called its “preeminent source” on al-Qaeda. This reversal occurred after Mohammed was subjected to simulated drowning and prolonged sleep deprivation, among other harsh interrogation techniques. . . .

[F]or defenders of waterboarding, the evidence is clear: Mohammed cooperated, and to an extraordinary extent, only when his spirit was broken in the month after his capture March 1, 2003, as the inspector general’s report and other documents released this week indicate.

Who are the Post’s sources for this full-scale vindication of Dick Cheney’s defense of torture?  ”Two sources who described the sessions, speaking on the condition of anonymity because much information about detainee confinement remains classified”; “one former senior intelligence official said this week after being asked about the effect of waterboarding”; “one former U.S. official with detailed knowledge of how the interrogations were carried out said”; “One former agency official.”  It’s unclear how much overlap there is in that orgy of pro-Cheney anonymity, but there is not a single on-the-record source to corroborate the Torture-Saved-Us-From-Mass-Death narrative, nor is there even a shred of information about the motives or views of these “officials.”

What makes the Post’s breathless vindication of torture all the more journalistically corrupt is that the document on which it principally bases these claims — the just-released 2004 CIA Inspector General Report — provides no support whatsoever for the view that torture produced valuable intelligence, despite the fact that it was based on the claims of CIA officials themselves. Ironically, nobody has done a better job this week of demonstrating how true that is than the Post’s own Greg Sargent — who, in post after post this week — dissected the IG Report to demonstrate that it provides no evidence for Cheney’s claims that torture helped obtain valuable intelligence.

That the released documents provide no support for Cheney’s claims was so patently clear that many news articles contained unusually definitive statements reporting that to be so.  The New York Times reported that the documents Cheney claimed proved his case ”do not refer to any specific interrogation methods and do not assess their effectiveness.“  ABC News noted that “the visible portions of the heavily redacted reports do not indicate whether such information was obtained as a result of controversial interrogation techniques, such as waterboarding.”  TPM’s Zachary Roth documented that “nowhere do they suggest that that information was gleaned through torture,” while The Washington Independent’s Spencer Ackerman detailed that, if anything, the documents prove ”that non-abusive techniques actually helped elicit some of the most important information the documents cite in defending the value of the CIA’s interrogations.”  As Sargent reported, even Bush’s loyal Terrorism adviser, Frances Fargos Townsend, admitted that the IG Report provides no basis for what the Post today is ludicrously implying:

It’s very difficult to draw a cause and effect, because it’s not clear when techniques were applied vs. when that information was received. It’s implicit. It seems, when you read the report, that we got the — the — the most critical information after techniques had been applied. But the report doesn’t say that.

Yet The Post today publishes a long, breathless story that, in reality, does little more than claim that (a) Khalid Sheik Mohammed was subjected to “the CIA’s harshest interrogation methods” (not “torture,” of course) and (b) at some point after that, he provided valuable intelligence.  At best, it’s nothing more than a statement of obvious chronology, not causation.  Nonetheless — faithfully employing the same semantic game Cheney used to obfuscate chronology and causation, which Sargent first highlighted — The Post loudly and unmistakably suggests that it was the torture that caused the waterfall of life-saving intelligence, and repeatedly grants anonymity to “intelligence officials” to claim this is so, notwithstanding the complete absence of any evidence for such claims and the ample evidence, as the Post’s own Sargent documented, proving this to be untrue.

The debate over whether torture extracted valuable information is, in my view, a total sideshow, both because (a) it inherently begs the question of whether legal interrogation means would have extracted the same information as efficiently if not more so (exactly the same way that claims that warrantless eavesdropping uncovered valuable intelligence begs the question of whether legal eavesdropping would have done so); and (b) torture is a felony and a war crime, and we don’t actually have a country (at least we’re not suppoesd to) where political leaders are free to commit serious crimes and then claim afterwards that it produced good outcomes.  If we want to be a country that uses torture, then we should repeal our laws which criminalize it, withdraw from treaties which ban it, and announce to the world (not that they don’t already know) that, as a country, we believe torture is justifiable and just.  Let’s at least be honest about what we are.  Let’s explicitly repudiate Ronald Reagan’s affirmation that ”[n]o exceptional circumstances whatsoever . . . may be invoked as a justification of torture” and that “[e]ach State Party is required [] to prosecute torturers.”

But sideshow or not, media outlets ought to exercise at least the most minimal amount of mental thought and skepticism before passing on baseless, anonymous claims that Torture Works and Saves Lives.  It’s long been clear that most of our establishment media believes in torture — that’s why there was so little outcry from them when the torture regime was implemented and why they’re yet again reacting with horror over the prospect of accountability.  As a result, they are now eager to argue it worked in order to justify not only what Bush officials did, but also their own complicity in it.

The Post article today is one of the most astoundingly vapid and misleading efforts yet to justify torture — a true museum exhibit for the transformation of American journalism into little more than mindless amplifiers for those in power.  It simultaneously touts facts as new revelations that have, in fact, long been claimed (that KSM provided valuable intelligence), while deceitfully implying facts that are without any evidence whatsoever (that he did so because he was tortured).  Dick Cheney couldn’t have said it better himself.  It’s so strange how often that’s true of The Liberal Media.

UPDATE: To The Washington Post:  if even Politico — that’s Politico — notices and points out that you appear rather blatantly to be shilling for Dick Cheney by masquerading pure propaganda as “straight news,” then that’s a rather compelling indication that you’re doing exactly that.

Politico also points to these comments earlier this week from actual journalist Jane Mayer about Mohammed:

Well, the documents that I’ve seen, and maybe I’m missing something, but so far, I am amazed at how little support there is for the things that Vice President Cheney has been saying. There is nothing but a mass of claims that they got information from this individual and that individual, many from KSM, who apparently has been the greatest fount of information for them, but there’s absolutely nothing saying that they had to beat them to get this information. In fact, as anybody knows who knows anything about Khalid Sheikh Mohammed, he was dying to tell the world, when he was interviewed by Al Jazeera before he was in US custody, about everything he knew and everything he did. He was proud of his role as the mastermind of 9/11. He loves to talk about it. So there’s no evidence that I see in this that these things were necessary. I spoke to someone at the CIA who was an adviser to them who conceded to me that “We could have gotten the same information from tea and crumpets.”

It would be one thing for Fred Hiatt to have printed this Post article as an Op-Ed from, say, John Bolton or some dutiful, low-level former Bush official.  That’s just standard Post behavior.  But to print this as a purported ”news article” — and tout it as revealing ”previously unpublicized details” — is, quite arguably, a new propagandistic low even for the Post, which is saying quite a bit.

UPDATE II:  Just as happened with the run-up to the Iraq War — when pro-war newspaper stories based on pro-Cheney leaks became the “evidence” Cheney cited on Sunday news shows to “prove” the Iraqi threat — the Post article ”proving” that Torture Worked will almost certainly be cited by all torture defenders on this weekend’s Sunday shows — including by Cheney himself when he appears on Fox News and his daughter when she appears on ABC’s This Week with George Stephanopoulos.  Here’s Stephanopoulos, on Twitter, already laying the groundwork for that to happen: [ad deleted]

As of today, thanks to the Post article, KSM’s torture-caused, life-saving disclosures will be every bit as much a blindly accepted “fact” in our political discourse as Saddam’s aluminum tubes were in 2003 — and both myths were disseminated by the same people and the same “journalistic” methods.

August 29th, 2009

Hint of horrors to come: Newsweek previews the CIA Inspector General’s report

Newsweek gives a hint of what is in the CIA Inspector General’s report on the “enhanced interrogation” [torture] program. Rumor has it that the report will be released on Monday, one of two to come out that day. The other is the Justice Department’s Office of Professional Responsibility report on the creation of the torture memos by Yoo, Bybee, and Bradbury. It should be quite a day. It is even possible that Attorney General Holder may pick that day to announce whether he will appoint a Special Prosecutor into some aspects of the torture program.

We may see leaks of the worst material in these reports over the weekend as an attempt to dilute the full mpact of the reports’ release:

Report Reveals CIA Conducted Mock Executions
A long-awaited report on post-9/11 interrogation tactics will reveal harrowing new details about treatment of suspected terrorists.

By Mark Hosenball and Michael Isikoff

A long-suppressed report by the Central Intelligence Agency’s inspector general to be released next week reveals that CIA interrogators staged mock executions as part of the agency’s post-9/11 program to detain and question terror suspects, NEWSWEEK has learned.

According to two sources—one who has read a draft of the paper and one who was briefed on it—the report describes how one detainee, suspected USS Cole bomber Abd al-Rahim al-Nashiri, was threatened with a gun and a power drill during the course of CIA interrogation. According to the sources, who like others quoted in this article asked not to be named while discussing sensitive information, Nashiri’s interrogators brandished the gun in an effort to convince him that he was going to be shot. Interrogators also turned on a power drill and held it near him. “The purpose was to scare him into giving [information] up,” said one of the sources. A federal law banning the use of torture expressly forbids threatening a detainee with “imminent death.”

According to the sources, the report also says that a mock execution was staged in a room next to a detainee, during which a gunshot was fired in an effort to make the suspect believe that another prisoner had been killed. The inspector general’s report alludes to more than one mock execution.

Before leaving office, Bush administration officials confirmed that Nashiri was one of three CIA detainees subjected to waterboarding. They also acknowledged that Nashiri was one of two al Qaeda detainees whose detentions and interrogations were documented at length in CIA videotapes. But senior officials of the agency’s undercover operations branch, the National Clandestine Service, ordered that the tapes be destroyed, an action which has been under investigation for over a year by a federal prosecutor.

The new revelations are contained in a lengthy report on the CIA interrogation program completed by the agency’s inspector general in May 2004, around the time that the initial, most intense phase of the CIA effort began to wind down. The purpose of the report was to examine how the CIA program had been conducted, and whether Justice Department guidelines governing the use of harsh “enhanced” interrogation techniques had been followed. According to the sources, the inspector general criticizes some agency interrogators for exceeding official guidelines in the use of extreme tactics on detainees.

Mock executions were not authorized in Justice Department memoranda that outlined the legal parameters that Bush administration lawyers believed should govern the use of “enhanced” interrogations. The Justice Department memoranda, once highly classified, were released earlier this year by the Obama administration in the face of strenuous objections from the CIA and former Bush White House officials.

The inspector general’s report, commissioned by then CIA-director George Tenet, was sent to the Justice Department and congressional intelligence committee leaders shortly after it was written. But it was not shown to all members of the intelligence committees until September 2006, around the time that President Bush publicly acknowledged the CIA detention and interrogation program and instructed the agency, which had been holding detainees in a network of secret overseas prisons, to transfer them to the U.S. military detention camp at Guantanamo Bay, Cuba.

Top Bush CIA officials, including Tenet’s successors as CIA director, Porter Goss and Gen. Michael Hayden, strongly lobbied for the IG report to be kept secret from the public. They argued that its release would damage America’s reputation around the world, could damage CIA morale, and would tip off terrorists regarding American interrogation tactics. “Justice has had the complete document since 2004, and their career prosecutors have reviewed it carefully for legal accountability,” said CIA spokesman Paul Gimigliano. “That’s already been done.”

The inspector general’s report is expected to fuel political debates over whether the tough interrogation methods used during the Bush administration actually worked. According to another source who has seen the document, the report says that the agency’s interrogation program did produce usable intelligence.

At the same time the administration releases the inspector general’s report, it is also expected to release other CIA documents that assert the agency collected valuable intelligence through the interrogation program. For months, former Vice President Dick Cheney has called for these documents to be released. However, a person familiar with the contents of the documents says that they contain material which both opponents and supporters of Bush administration tactics can use to bolster their case. The Senate Intelligence Committee is now conducting what is supposed to be a thorough investigation of the CIA’s interrogation and detention program. The probe is intended not only to document everything that happened, but also to assess whether on balance the program produced major breakthroughs or a deluge of false leads.

August 21st, 2009

Michael Moore’s ‘Capitalism: A Love Story’: Trailer

August 21st, 2009

Statement of Berkeley law dean: The Torture Memos, Professor Yoo, and Academic Freedom

Earlier this week there was a demonstration in Berkeley calling for the firing of torture lawyer John Yoo from his tenured position at the Berkeley law school. A statement by psychologist Ruth Fallenbaum was read at that demonstration:. Now the Dean of the law school has issued the following statement on the controversy. This statement, and the issues behind it, have aroused spirited discussion among those generally committed to accountability for the torturers and those complicit with them:

The Torture Memos, Professor Yoo, and Academic Freedom

Statement of Dean Edley

August 20, 2009

While on leave of absence from Berkeley, serving as a Deputy Assistant Attorney General in the Bush Administration, Professor Yoo wrote and contributed to memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our nation’s efforts to combat terrorism.  The controversial reasoning and conclusions in these documents have been widely criticized in the academic literature, the media and in protests stretching over the past two years or more.  Locally, I have received thousands of communications criticizing Professor’s Yoo’s continuing presence at Berkeley Law.  In recent weeks protestors have frequently gone to Professor Yoo’s home and posted signs in his neighborhood.  Now, protestors have intentionally disrupted our classes and threatened to continue—not just assembling to voice their views, but attempting to prevent Professor Yoo from teaching, to the detriment of students who have chosen to enroll in his course.  Other classrooms are also affected.

As dean I feel obliged to comment. Nonetheless, I speak only for myself in the following remarks, with no expectation that I will completely satisfy anyone.

Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.

It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley’s classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments—be they left or right or lazy—will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.

Does what Professor Yoo wrote while away from the University somehow place him beyond the pale of academic freedom today, when he is back on campus? If this were some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that a still easier case.

Or consider the more contemporary possibility of a pro-choice professor, who wielded power while on leave serving in government, or gained notoriety leading weekend rallies.  The professor is attacked at his college, a socially conservative place where the prevailing view is that abortion is murder and active defenders of a woman’s right to choose are complicit in infanticide.  In Professor Yoo’s case, additional things are obviously in play. Gravely so, because some of the views he authored while a professor were merely controversial back then; while in government those same views became consequential.

My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses; this includes most though perhaps not all of his Berkeley Law colleagues.  If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.

There are important questions about the content of the Yoo memoranda—about tortured definitions of “torture,” about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law that he finds bothersome or interfering. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle. One can oppose and even condemn a challenging or even abhorrent idea, but I do not believe that in a university we can fearfully refuse to look at it. That would not be the best way to educate, or a promising way to seek deeper understanding in a world of continual, strange revolutions.

There is more, however. Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda declared available to them within the law. As critical as I am of his analyses, no argument about what he did or didn’t facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place.  The law does not criminalize very immoral act, however, and there is a strong argument that these more direct actors get a “pass” because they relied on the DOJ memoranda.  (Even if Rumsfeld though his actions were legal, that didn’t make his choices moral.)  Lawyers, on the other hand, should not have blanket immunity for all their advice and actions, no matter what. But it does matter to me that Yoo was an adviser, while President Bush and his national security appointees were the deciders.

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demanded greater, not reduced, vigilance for constitutional rights and safeguards.

What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach or even a war crime? It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must—perhaps as an ethical matter—provide a bulwark to political and bureaucratic discretion. And it shouldn’t require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here at the University of California is the relevant excerpt from the “General University Policy Regarding Academic Appointees,” adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, and in any case disciplinary authority over faculty is lodged not with deans but with the Provost, Chancellor and Academic Senate.  But I will put aside that shield and state my independent and personal view of the matter:

I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic performance now? Did writing the memoranda, and any related acts, violate a criminal or comparable statute?

Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

When the Attorney General releases the results of DOJ’s internal ethics investigation, I and many others will review it carefully and consider whether there are implications for this campus.  In all candor, I doubt that there will be.  Non-clinical faculty need not be a member of a bar, and Professor Yoo does not teach our courses on Professional Responsibility.

On the other hand, prosecution, followed by conviction and unsuccessful appeal, would be a very different matter.  As a board member of the Obama Presidential Transition, I argued that fidelity to the Rule of Law requires investigation of possible criminality by officials in the previous administration, despite the political cost of being attacked for conducting a “witch hunt”.  My belief then, and now, is that only in a court of law can we have definitive findings of fact and conclusions of law. We need both. My friend Eric Holder, Attorney General of the United States, should either pursue the matter, or tell us that he believes there was no criminality.  We need to know what happened, and not just from journalists.  We need to know where the boundaries of lawful conduct are in combating national security threats. We need to know when legal advice and advocacy become criminal.

University faculty and administrators are not competent to answer these questions.  If we try to do so in the circumstances at hand, we imperil values at our very core.

August 19, 2009

1 comment August 20th, 2009

The Onion on health care denial reform

Thanks to The Onion, we can get real insight into what is going on with health denial reform:

Congress Deadlocked Over How To Not Provide Health Care

WASHINGTON—After months of committee meetings and hundreds of hours of heated debate, the United States Congress remained deadlocked this week over the best possible way to deny Americans health care.

“Both parties understand that the current system is broken,” House Speaker Nancy Pelosi told reporters Monday. “But what we can’t seem to agree upon is how to best keep it broken, while still ensuring that no elected official takes any political risk whatsoever. It’s a very complicated issue.”

“Ultimately, though, it’s our responsibility as lawmakers to put these differences aside and focus on refusing Americans the health care they deserve,” Pelosi added.

The legislative stalemate largely stems from competing ideologies deeply rooted along party lines. Democrats want to create a government-run system for not providing health care, while Republicans say coverage is best denied by allowing private insurers to make it unaffordable for as many citizens as possible.

“We have over 40 million people without insurance in this country today, and that is unacceptable,” Sen. Orrin Hatch (R-UT) said. “If we would just quit squabbling so much, we could get that number up to 50 or even 100 million. Why, there’s no reason we can’t work together to deny health care to everyone but the richest 1 percent of the population.”

“That’s what America is all about,” he added.

House Minority Leader John Boehner (R-OH) said on Meet The Press that Republicans would never agree to a plan that doesn’t allow citizens the choice to be denied medical care in the private sector.

“Americans don’t need some government official telling them they don’t have the proper coverage to receive treatment,” Boehner said. “What they need is massive insurance companies to become even more rich and powerful by withholding from average citizens the care they so desperately require. We’re talking about people’s health and the obscene profits associated with that, after all.”

Though there remain irreconcilable points, both parties have reached some common ground in recent weeks. Senate leaders Harry Reid (D-NV) and Mitch McConnell (R-KY) point to Congress’ failure to pass legislation before a July 31 deadline as proof of just how serious lawmakers are about stringing along the American people and never actually reforming the health care industry in any meaningful way.

“People should know that every day we are working without their best interests in mind,” Reid said. “But the goal here is not to push through some watered-down bill that only denies health care to a few Americans here and a few Americans there. The goal is to recognize that all Americans have a God-given right to proper medical attention and then make sure there’s no chance in hell that ever happens.”

“No matter what we come up with,” Reid continued, “rest assured that millions of citizens will remain dangerously uninsured, and the inflated health care industry will continue to bankrupt the country for decades.”

Other lawmakers stressed that, while there has been some progress, the window of cooperation was closing.

“When you get into the nuts and bolts of how best not to provide people with care essential to their survival, there are many things to take into consideration,” Rep. Michele Bachmann (R-MN) said. “I believe we can create a plan for Americans that allows them to not be able to go to the hospital, not get the treatment they need, and ultimately whither away and die. But we’ve got to act fast.”

For his part, President Barack Obama claimed to be optimistic, even saying he believes that a health care denial bill will pass in both houses of Congress by the end of the year.

“We have an opportunity to do something truly historic in 2009,” Obama said to a mostly silent crowd during a town hall meeting in Virginia yesterday. “I promise I will only sign a clear and comprehensive health care bill that fully denies coverage to you, your sick mother, her husband, middle-class Americans, single-parent households, the unemployed, and most importantly, anyone in need of emergency medical attention.”

“This administration is committed to not providing health care,” Obama added. “Not just for this generation of Americans, but for many generations to come.”

1 comment August 20th, 2009

Greenwald: Obama’s getting the health bill he always wanted

Glenn Greenwald has a theory about the healthcare bill, the bill is being watered down “under centrist and Republican pressure” because that was the plan all along. Greenwald believe that the Obama administration wanted a bill that gave the insurance and pharmaceutical industries all they wanted as that would keep their cash flowing to the Democrats. I don’t know if this theory is true, but it fits the facts very well:

Why the health care debate is so important regardless of one’s view of the “public option”

By Glenn Greenwald

(updated below)

The New York Times today has a discussion from several contributors, including me, of the politics of the health care debate.  My contribution, which focuses on the role the White House has played and the ample evidence that they have been quite active in shaping the course of events, can be read here.  I want to elaborate on a couple of points I referenced in passing.

Over the past decade, the Democratic Party has specialized in offering up one excuse after the next for its collective failures.  During the early Bush years, the excuse was that they endorsed Bush policies because his popularity and post-9/11 hysteria made it politically unwise to oppose him.  In later Bush years when his popularity plummeted, the excuse was that Democrats were in the minority and could do nothing.  After 2006 when they won a Congressional majority, the excuse was that Bush still controlled the White House and had veto power.  After 2008 when a Democrat won the White House, the excuse was that Republicans could filibuster.

Now that they have a filibuster-proof majority, a huge margin in the House and the White House, the excuses continue unabated, as Democrats are now on the verge of jettisoning one of the most significant attractions for progressives to the Obama campaign — active government involvement in the health insurance market.  The excuses for “compromising” are cascading more rapidly than ever:  We need Republican support to ensure it’s bipartisan.  The Blue Dogs won’t go along with what we want.  Centrist Senators will filibuster. There are similar excuses being made to defend Obama from accusations that he deserves some of the blame for the failure of the “public option.”  Matt Yglesias makes the typical case for shielding Obama from any responsibility:

I think there’s something perverse in the very strong desire I see among liberals to make problems in congress be about anything other than congress. It’s just not in the power of Barack Obama to make the senate anything other than what it is.

I’m really surprised that there’s anyone, especially Matt, who actually believes this — that the Obama White House is merely an impotent, passive observer of what the Democrats in Congress do and can’t be expected to do anything to secure votes for approval of the health care bill it favors.  As the leader of his party, the President commands a vast infrastructure on which incumbent members of Congress rely for re-election.  His popularity among Democrats vests him numerous options to punish non-compliant Democrats.  And Rahm Emanuel built his career on controlling the machinations within Congress.  The very idea that Obama, Emanuel and company are just sitting back, helplessly watching as Max Baucus, Kent Conrad and the Blue Dogs (Rahm’s creation) destroy their health care legislation, is absurd on its face.

When it comes to defiant progressive members of Congress — as opposed to supposedly defiant Blue Dogs and “centrists” — the Obama White House has proven itself extremely adept at compelling compliance with the President’s agenda.  Consider what happened when progressive House members dared to oppose the war supplemental bill which Obama wanted passed:

The White House is playing hardball with Democrats who intend to vote against the supplemental war spending bill, threatening freshmen who oppose it that they won’t get help with reelection and will be cut off from the White House, Rep. Lynn Woolsey (D-Calif.) said Friday.

“We’re not going to help you. You’ll never hear from us again,” Woolsey said the White House is telling freshmen

When progressives refuse to toe the White House line, they get threatened.  Contrast that with what the White House does with Blue Dogs and “centrists” who are allegedly uncooperative on health care – they protect them:

The Politico’s Jonathan Martin reported this morning that Rahm Emanuel warned leaders of liberal groups in a private meeting this week that it was time to stop running ads attacking Blue Dog and “centrist” Dems on health care.

I’m told, however, that Emanuel went quite a bit further than this.

Sources at the meeting tell me that Emanuel really teed off on the Dem-versus-Dem attacks, calling them “f–king stupid.”  This was a direct attack on some of the attendees in the room, who are running ads against Dems right now.

What does that vast disparity reveal?  If anything, Blue Dogs — virtually all of whom represent more conservative districts — are more vulnerable and thus more dependent for re-election on the White House and Democratic Party infrastructure than progressives are.  If health care fails and the Obama presidency weakens, they will bear the brunt of the voters’ desire to punish Democrats.  The White House would have at least as much leverage to exercise against Blue Dogs and centrists.  They just aren’t doing so.  In fact, they’re doing the opposite:  they’re protecting them even as they supposedly impede what the White House wants on one of Obama’s signature issues.

This isn’t to say that Obama can single-handedly control what Congress does.  It’s possible that even with maximum leverage exerted, a President can still lose.  But there isn’t any leverage being exerted against anti-public-option “centrists” and Blue Dogs.  There’s just no effort being made.  The White House seems perfectly content with what the centrists and Blue Dogs have done thus far; the only anger they have shown, as usual, is towards progressives who are demanding robust reform.

* * * * *

A related (and in my view equally unpersuasive) excuse was offered by The Washington Monthly’s Steve Benen, who seems to take seriously the claim that Democrats have been compromising so much because they wanted to attract substantial GOP support for health care.  Steve correctly points out why such an expectation is ludicrous:  ”Senate Minority Whip Jon Kyl (R-Ariz.) announced that Republicans will reject reform no matter what’s in the bill. . . .  Negotiating health care reform with politicians who oppose health care reform doesn’t make sense. Negotiating reform with politicians who’ve vowed to vote against reform under any circumstances is insane.”

That’s obviously true.  In fact, it’s so obviously true that no matter how dumb one might think Democrats are, they’re certainly not so dumb that they failed to realize that the GOP was highly unlikely to help Obama pass health care reform no matter what the bill contained.  From the start, it’s been obvious to everyone — the Obama White House and Senate Democrats included — that the GOP would not help Obama pass health care reform.  Why would the GOP want to help Obama achieve one of his most important and politically profitable goals?  Of course they were going to try to sabotage the entire project and would oppose health care reform no matter what form it took.  Everyone knew that from the start for exactly the reason that it was so obvious to Benen.

The attempt to attract GOP support was the pretext which Democrats used to compromise continuously and water down the bill.  But — given the impossibility of achieving that goal — isn’t it fairly obvious that a desire for GOP support wasn’t really the reason the Democrats were constantly watering down their own bill?  Given the White House’s central role in negotiating a secret deal with the pharmaceutical industry, its betrayal of Obama’s clear promise to conduct negotiations out in the open (on C-SPAN no less), Rahm’s protection of Blue Dogs and accompanying attacks on progressives, and the complete lack of any pressure exerted on allegedly obstructionists “centrists,” it seems rather clear that the bill has been watered down, and the “public option” jettisoned, because that’s the bill they want — this was the plan all along.

The Obama White House isn’t sitting impotently by while Democratic Senators shove a bad bill down its throat.  This is the bill because this is the bill which Democratic leaders are happy to have.  It’s the bill they believe in.  As important, by giving the insurance and pharmaceutical industries most everything they want, it ensures that the GOP doesn’t become the repository for the largesse of those industries (and, converesly, that the Democratic Party retains that status).

This is how things always work.  The industry interests which own and control our government always get their way.  When is the last time they didn’t?  The ”public option” was something that was designed to excite and placate progressives (who gave up from the start on a single-payer approach) – and the vast, vast majority of progressives (all but the most loyal Obama supporters) who are invested in this issue have been emphatic about how central a public option is to their support for health care reform.  But it seems clear that the White House and key Democrats were always planning on negotiating it away in exchange for industry support.  Isn’t that how it always works in Washington?  No matter how many Democrats are elected, no matter which party controls the levers of government, the same set of narrow monied interests and right-wing values dictate outcomes, even if it means running roughshod over the interests of ordinary citizens (securing lower costs and expanding coverage) and/or what large majorities want.

* * * * *

That’s why this debate has now taken on such importance — regardless of whether you think a public option is important or even if you think it’s a good idea.  Thanks in large part to the months-long efforts of Jane Hamsher and her FDL team — who spent enormous amounts of time and resources getting large numbers of progressive House members to emphatically commit on video to opposing any health care bill that lacks a robust public option — there’s actually a chance this time that the outcome could be different.  If those progressive House members actually adhere to their pledge, they can and will block any health care bill that lacks a public option.  They can actually thwart industry demands and the dictate of Beltway leaders; can empower a new faction in Washington (themselves) beholden to different interests (ordinary citizens); and can vest some actual significance in the outcome of the 2006 and 2008 election.

Along with several other blogs, Jane and FDL are sponsoring a fundraiser to reward, and embolden, those progressive members who have made that pledge, and it raised an extraordinary sum of close to $150,000 in just a couple of days.  Those interested can donate here.  Rachel Maddow’s lead segment last night was a discussion with Jane regarding the political significance of the health care debate and the possibility that progressives could actually prevail on something of significance for once.

The Washington Post today quotes an “anonymous White House official” excoriating what he condescendingly calls “the left of the left” for petulantly demanding a “public option.”  That article notes that the Obama White House is surprised by the intensity of progressives’ insistence that the bill include a “public option,” and who can blame them for being surprised?  Ordinarily, progressives are told that they cannot have what they want because Blue Dogs and Republicans (on behalf of the industries that own them) must get what they want, and progressives meekly accept that because it’s “better than nothing” (don’t let the Perfect be the Enemy of the Good, they are lectured).  More than anything else, it’s vital that this dynamic change.  Such a change — a shift in Beltway power dynamics — would be far more consequential even than the specific health care policy issues at stake in this debate.

UPDATE:  Using public reports, Jane Hamsher pieces together the key events about as well as it’s possible to do, in order to illuminate what is actually driving this process.  I highly recommend reading it.

August 20th, 2009

Kaye clarifies SERE-JPRA role

In a 3-part series, [part 1, part 2, part 3] Jeff Kaye adds to our picture of the development of the CIA’s “enhanced interrogation” program by taking a closer look at the other shareholders of Mitchell Jessen, and Associates. As has been previously noted by Kaye, all of them had long connections with the SERE program and with JPRA [Joint Personnel Recovery Agency], the SERE parent agency.

Kaye cites a JPRA sources as stating that Mitchell and Jesses were not the prime actors in the initiator of the program. Rather, this source suggests, stakeholders Roger Aldrich, one of the pioneers of the SERE program, played a critical role.

Kaye also extends backwards the involvement of former American Psychological Association President Joseph Matarazzo:

David Ayers, head of Tate, Inc., was the other MJA shareholder, along with Joseph Matarazzo, yet another former president [in addition to Martin Seligman: SS] of the American Psychological Association who crossed Mitchell and Jessen’s path. Matarazzo, who Jane Mayer recently reported worked for the CIA, had been hired by Mitchell and Jessen years earlier, in 1996, along with other prominent U.S. psychologists — Charles Speilberger, Richard Lazarus, and Albert Bandura –  for an internal review of SERE training procedures, according to a SERE internal document.

It is amazing how many senior psychologists seem to have been at least tangentially connected with the developers of the CIA’s torture program. And, of course, we should remember that the APA itself had Mitchell and Jessen as participants in a joint CIA-APA-Rand conference on the Science of Deception at which, accordingly to the conference description, several enhanced interrogation techniques were discussed. Someday we will understand why these and, no doubt, other prominent psychologists were so close to the SERE program and to Mitchell, Jessesn, and the other creators of the CIA torture program.

August 17th, 2009