Psyche, Science, and Society

Frakt: Military Commissions trial of Khadr “unfathomable” and “reprehensible”

Lt. Col. David Frakt, the former military defender of Mohammed Jawad, writes about the new Obama Military Commissions and their application to child soldier Omar Khadr. Despite improvements in the Military Commission rules, they are still a legal travesty in that they are being retroactively applied to acts that are not violations of the laws of war.

The take-home quote:

The Administration’s decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible.

the entire article:

New Manual for Military Commissions Disregards the Commander-in-Chief, Congressional Intent and the Laws of War

Late Monday, on the eve of Omar Khadr’s suppression hearing, the first major military commission hearing at Guantanamo since President Obama took office, the Defense Department released the new Manual for Military Commissions. The Manual is the primary implementing regulation for the Military Commissions Act of 2009, containing detailed procedural guidance, rules of evidence, and a penal code with explanations of the offenses which may be prosecuted in these military tribunals.

On the whole, the 2009 MCA is substantially fairer than the 2006 version of the law and the new Manual also contains some significant improvement over the previous version. The standards for admissibility of coerced statements and hearsay evidence, for example, now are much closer to the standards which apply in general courts-martial and federal court. There is, however, some very troubling language in the new Manual relating to the proof required to convict for certain offenses, which undermines the Obama Administration’s claims of respect for the law of war and adherence to the rule of law.

On May 21, 2009, in an important national security speech at the National Archives President Obama explained his rationale for seeking to amend the MCA and keeping military commissions available as one option for trying detainees, “[D]etainees who violate the laws of war. . .are best tried through Military Commissions. Military commissions. . . are an appropriate venue for trying detainees for violations of the laws of war.” As Assistant Attorney General David Kris explained to the Senate last July, “The President has made clear that military commissions are to be used only to prosecute law of war offenses.”

What President Obama may not have realized, or at least neglected to mention in his speech, is that very few detainees are actually suspected of violating the laws of war. Last summer, I was invited to testify before a Congressional Subcommittee considering proposals to reform the military commissions and I tried to explain this point: “The Obama administration has talked about military commissions being a suitable forum for law of war offenses, and I agree with that. They are a legitimate forum for law of war offenses. But what gets left out of the debate is that there are virtually no law of war offenses to be tried.” While I encouraged Congress to limit military commissions to true war crimes, I warned the lawmakers that if reformed military commissions “are limited to law of war offenses. . .there is not going to be anybody to try.”

Unfortunately, in enacting the Military Commissions Act of 2009, Congress did not strictly limit the jurisdiction of the military commissions to law of war violations and included non-war crimes like “Providing Material Support to Terrorism,” a crime which even the Justice Department was forced to admit was not a traditional law of war offense. The Secretary of Defense, in publishing the new Manual for Military Commissions, has done Congress one better, attempting by regulation to broaden the scope of a real war crime to include conduct that does not violate the law of war in order to ensure convictions where they would otherwise be doubtful. In so doing, Secretary Gates has subverted the will of Congress and undermined the President’s law of war justification for military commissions.

Under a 2003 DoD Instruction defining the crimes eligible for trial by the military commissions created by executive order of President Bush, the President attempted to create a new war offense called “murder by an unprivileged belligerent.”

The theory underling this offense was that any attempt to fight Americans or coalition forces was a war crime. This status-based definition conflated two different concepts – unprivileged belligerents and war criminals. Under Article 4 of the Geneva Prisoner of War Convention it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.

In the 2006 MCA, Congress rejected the status-based crime of Murder by an Unprivileged Belligerent, replacing it with the related, but more narrowly defined, “Murder in Violation of the Law of War.” The statute made it plain, as the name implies, that this offense applied only to killings that violated the law of war. Despite this clear distinction, military commission prosecutors argued in three separate cases convened under the 2006 law that “Murder in Violation of the Law of War” really was just “Murder by an Unprivileged Belligerent” by another name, explicitly claiming that the mere status of a person as an unlawful combatant rendered any hostile acts committed by him violations of the law of war. Three separate military judges in three commissions (Salim Hamdan, Mohammed Jawad and Ali al Bahlul) rejected the government’s argument, each ruling that the mere status of unprivileged belligerency was insufficient to prove a violation of the law of war. (I was the lead defense counsel in both the Jawad and al Bahlul cases). Congress was well aware of these rulings when it enacted the 2009 MCA — I specifically mentioned them in my testimony — but left the definition of “Murder in Violation of the Law of War” unchanged, reflecting their comfort with these judges’ interpretation of the crime.

Now, the Department of Defense has once again attempted to revive this discredited interpretation of the offense with a slight twist. In the new Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: “an accused may be convicted in a military commission. . . if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.” Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war. It is gratifying that DoD has finally acknowledged officially that status as an unprivileged belligerent –”merely failing to meet the requirements of privileged belligerency” — does not equate to a violation of the law of war, an argument that I made repeatedly before the commissions and in my congressional testimony. But it is deeply troubling that DoD has nevertheless opined that a non-law of war violation can still constitute murder in violation of the law of war. The commentary also directly contradicts the elements of the offense which specifically include a requirement that the prosecution prove beyond a reasonable doubt that the killing was in violation of the law of war. Although comments in a regulation do not have the force of law, the inclusion of this commentary is clearly intended to send a message to the military commission judges that they are not to let the law of war get in the way of a conviction.

It is no coincidence that this provision was published on the eve of the recommencement of the Omar Khadr commission. Khadr, a Canadian who was just 15 when he was captured in 2002, is charged with murder in violation of the law of war. Khadr allegedly threw a hand grenade which killed a U.S. soldier, but there is no evidence that he violated the law of war in doing so and in court filings the prosecution has admitted to relying solely on his status as an unprivileged belligerent to prove this element of the offense.

The absurdity of claiming that no actual violation of the law of war is required to commit murder in violation of the law of war severely undermines the Administration’s claims of commitment to adherence to the rule of law and their pledge to use military commissions only to prosecute law of war offenses. The Administration’s alleged devotion to transparency was also undercut by the release of the new manual. The DoD rejected the plea of the National Institute for Military Justice and other civil liberties groups for a public comment period on the draft manual and chose to publish the document as a final product. The obvious contradiction between the legislative intent and the Pentagon’s interpretation of this offense demonstrates precisely why a public comment period was needed.

The Administration’s decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible.

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David Frakt is Associate Professor of Law at Western State University College of Law and a Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps. He previously served as lead defense counsel with the Office of Military Commissions. His views are his own and do not reflect the views of the Air Force or the Department of Defense.

April 30th, 2010

Drone pilots are illegal combatants, can be tried for war crimes

US is using illegal combatants to pilot killer drones, law professor David Glazier. Perhaps they should join the 183 Guantanamo residents:

Drone Pilots Could Be Tried for ‘War Crimes,’ Law Prof Says

By Nathan Hodge and Noah Shachtman

The pilots waging America’s undeclared drone war in Pakistan could be liable to criminal prosecution for “war crimes,” a prominent law professor told a Congressional panel Wednesday.

Harold Koh, the State Department’s top legal adviser, outlined the administration’s legal case for the robotic attacks last month. Now, some legal experts are taking turns to punch holes in Koh’s argument.

It’s part of an ongoing legal debate about the CIA and U.S. military’s lethal drone operations, which have escalated in recent months — and which have received some technological upgrades. Critics of the program, including the American Civil Liberties Union, have argued that the campaign amounts to a program of targeted killing that may violate the laws of war.

In a hearing Wednesday before the House Committee on Oversight and Government Reform’s national security and foreign affairs panel, several professors of national security law seemed open to that argument. But there are still plenty of caveats, and the risks to U.S. drone operators are at this point theoretical: Unless a judge in, say, Pakistan, wanted to issue a warrant, it doesn’t seem likely. But that’s just one of the possible legal hazards of robotic warfare.

Loyola Law School professor David Glazier, a former Navy surface warfare officer, said the pilots operating the drones from afar could — in theory — be hauled into court in the countries where the attacks occur. That’s because the CIA’s drone pilots aren’t combatants in a legal sense. “It is my opinion, as well as that of most other law-of-war scholars I know, that those who participate in hostilities without the combatant’s privilege do not violate the law of war by doing so, they simply gain no immunity from domestic laws,” he said.

“Under this view CIA drone pilots are liable to prosecution under the law of any jurisdiction where attacks occur for any injuries, deaths or property damage they cause,” Glazier continued. “But under the legal theories adopted by our government in prosecuting Guantánamo detainees, these CIA officers as well as any higher-level government officials who have authorized or directed their attacks are committing war crimes.”

The drones themselves are a lawful tool of war; “In fact, the ability of the drones to engage in a higher level of precision and to discriminate more carefully between military and civilian targets than has existed in the past actually suggests that they’re preferable to many older weapons,” Glazier added. But employing CIA personnel to carry out those armed attacks, he concluded, “clearly fall outside the scope of permissible conduct and ought to be reconsidered, particularly as the United States seeks to prosecute members of its adversaries for generally similar conduct.”

Drone attacks haven’t just become the primary weapon in the American bid to wipe out Al Qaeda and affiliated terrorist networks. “Very frankly, it’s the only game in town in terms of confronting or trying to disrupt the al Qaeda leadership,” CIA director Leon Panetta said.

But that “embrace of the Predator program has occurred with remarkably little public discussion, given that it represents a radical new and geographically unbounded use of state-sanctioned lethal force,” The New Yorker’s Jane Mayer recently observed. Before 9/11, the American government regularly condemned Israel for taking out individual terrorists. “Seven years later, there is no longer any doubt that targeted killing has become official U.S. policy.”

The U.S. government has since defended the strikes as legitimate self-defense — without going into details about the operations. Kenneth Anderson, an American University law professor, said the government’s reluctance to talk about the missions — as well as its reliance on an intelligence agency to carry out military action — raises some serious questions.

In his prepared statement (.pdf), Anderson said Koh “nowhere mentions the CIA by name in his defense of drone operations. It is, of course, what is plainly intended when speaking of self-defense separate from armed conflict. One understands the hesitation of senior lawyers to name the CIA’s use of drones as lawful when the official position of the U.S. government, despite everything, is still not to confirm or deny the CIA’s operations.”

What’s more, Anderson argued, Congress has been reluctant to talk about the bigger policy issue: Why this is a CIA mission in the first place. “Why should the CIA, or any other civilian agency, ever use force (leaving aside conventional law enforcement)?” he said. “Even granting the existence of self-defense as a legal category, why ever have force used by anyone other than the uniformed military?”

Mary Ellen O’Connell, professor of law at the University of Notre Dame, was much more blunt in her statement. “Combat drones are battlefield weapons,” she told the panel. “They fire missiles or drop bombs capable of inflicting very serious damage. Drones are not lawful for use outside combat zones. Outside such zones, police are the proper law enforcement agents, and police are generally required to warn before using lethal force.”

“Restricting drones to the battlefield is the most important single rule governing their use, O’Connell continued. “Yet, the United States is failing to follow it more often than not.”

Not all of the law professors testifying today agreed. Syracuse University’s William Banks, for one, said that “the intelligence laws permit the president broad discretion to utilize the nation’s intelligence agencies to carry out national security operations, implicitly including targeted killing.” Current U.S. laws “supply adequate – albeit not well articulated or understood – legal authority for these drone strikes.”

But American laws may not be on the only ones applicable to drone strikes, critics contend. As Anderson argued, the United States may face legal challenges from what he called the “international-law community” – nongovernmental organizations, international bodies, U.N. agencies and others who view this as a program of targeted killing that falls outside the bounds of armed conflict.

Either way, this hearing will not end the controversy. As we’ve noted here before, the government has been less than forthcoming about who, exactly, authorizes drone strikes, how the targets are chosen and how many civilians may have been inadvertently killed.

April 28th, 2010

Palast: Suppressing the Brown vote

Greg Palast believes he has found the real motive for the Arizona anti-immigrant law, voter suppression:

Behind the Arizona Immigration Law:
GOP Game to Swipe the November Election

By Greg Palast for Truthout.org

Our investigation in Arizona discovered the real intent of the show-me-your-papers law.

[Phoenix, AZ.] Don’t be fooled. The way the media plays the story, it was a wave of racist, anti-immigrant hysteria that moved Arizona Republicans to pass a sick little law, signed last week, requiring every person in the state to carry papers proving they are US citizens.

I don’t buy it. Anti-Hispanic hysteria has always been as much a part of Arizona as the Saguaro cactus and excessive air-conditioning.

What’s new here is not the politicians’ fear of a xenophobic “Teabag” uprising.

What moved GOP Governor Jan Brewer to sign the Soviet-style show-me-your-papers law is the exploding number of legal Hispanics, US citizens all, who are daring to vote — and daring to vote Democratic by more than two-to-one. Unless this demographic locomotive is halted, Arizona Republicans know their party will soon be electoral toast. Or, if you like, tortillas.

In 2008, working for Rolling Stone with civil rights attorney Bobby Kennedy, our team flew to Arizona to investigate what smelled like an electoral pogrom against Chicano voters … directed by one Jan Brewer.

Brewer, then Secretary of State, had organized a racially loaded purge of the voter rolls that would have made Katherine Harris blush. Beginning after the 2004 election, under Brewer’s command, no less than 100,000 voters, overwhelmingly Hispanics, were blocked from registering to vote. In 2005, the first year of the Great Brown-Out, one in three Phoenix residents found their registration applications rejected.

That statistic caught my attention. Voting or registering to vote if you’re not a citizen is a felony, a big-time jail-time crime. And arresting such criminal voters is easy: after all, they give their names and addresses.

So I asked Brewer’s office, had she busted a single one of these thousands of allegedly illegal voters? Did she turn over even one name to the feds for prosecution?

No, not one.

Which raises the question: were these disenfranchised voters the criminal, non-citizens Brewer tagged them, or just not-quite-white voters given the José Crow treatment, entrapped in document-chase trickery?

The answer was provided by a federal prosecutor who was sent on a crazy hunt all over the Western mesas looking for these illegal voters. “We took over 100 complaints, we investigated for almost 2 years, I didn’t find one prosecutable voter fraud case.”

This prosecutor, David Iglesias, is a prosecutor no more. When he refused to fabricate charges of illegal voting among immigrants, his firing was personally ordered by the President of the United States, George W. Bush, under orders from his boss, Karl Rove.

Iglesias’ jurisdiction was next door, in New Mexico, but he told me that Rove and the Republican chieftains were working nationwide to whip up anti-immigrant hysteria with public busts of illegal voters, even though there were none.

“They wanted some splashy pre-election indictments,” Iglesias told me. The former prosecutor, himself a Republican, paid the price when he stood up to this vicious attack on citizenship.

But Secretary of State Brewer followed the Rove plan to a T. The weapon she used to slice the Arizona voter rolls was a 2004 law, known as “Prop 200,” which required proof of citizenship to register. It is important to see the Republicans’ latest legislative horror show, sanctioning cops to stop residents and prove citizenship, as just one more step in the party’s desperate plan to impede Mexican-Americans from marching to the ballot box.

[By the way, no one elected Brewer. Weirdly, Barack Obama placed her in office last year when, for reasons known only to the Devil and Rahm Emanuel, the President appointed Arizona's Democratic Governor Janet Napolitano to his cabinet, which automatically moved Republican Brewer into the Governor's office.]

State Senator Russell Pearce, the Republican sponsor of the latest ID law, gave away his real intent, blocking the vote, when he said, “There is a massive effort under way to register illegal aliens in this country.”

How many? Pearce’s PR flak told me, five million. All Democrats, too. Again, I asked Pearce’s office to give me their the names and addresses from their phony registration forms. I’d happily make a citizens arrest of each one, on camera. Pearce didn’t have five million names. He didn’t have five. He didn’t have one.

The horde of five million voters who swam the Rio Grande just to vote for Obama was calculated on a Republican website extrapolating from the number of Mexicans in a border town who refused jury service because they were not citizens. Not one, in fact, had registered to vote: they had registered to drive. They had obtained licenses as required by the law.

The illegal voters, “wetback” welfare moms, and alien job thieves are just GOP website wet-dreams, but their mythic PR power helps the party’s electoral hacks chop away at voter rolls and civil rights with little more than a whimper from the Democrats.

Indeed, one reason, I discovered, that some Democrats are silent is that they are in on the game themselves. In New Mexico, Democratic Party bosses tossed away ballots of Pueblo Indians to cut native influence in party primaries.

But what’s wrong with requiring folks to prove they’re American if the want to vote and live in America? The answer: because the vast majority of perfectly legal voters and residents who lack ID sufficient for Ms. Brewer and Mr. Pearce are citizens of color, citizens of poverty.

According to a study by prof. Matt Barreto, of Washington State University, minority citizens are half as likely as whites to have the government ID. The numbers are dreadfully worse when income is factored in.

Just outside Phoenix, without Brewer’s or Pearce’s help, I did locate one of these evil un-American voters, that is, someone who could not prove her citizenship: 100-year-old Shirley Preiss. Her US birth certificate was nowhere to be found as it never existed.

In Phoenix, I stopped in at the Maricopa County prison where Sheriff Joe Arpaio houses the captives of his campaign to stop illegal immigration. Arpaio, who under the new Arizona law, will be empowered to choose his targets for citizenship testing, is already facing federal indictment for his racially-charged and legally suspect methods.

I admit, I was a little nervous, passing through the iron doors with a big sign, “NOTICE: ILLEGAL ALIENS ARE PROHIBITED FROM VISITING ANYONE IN THIS JAIL.” I mean, Grandma Palast snuck into the USA via Windsor, Canada. We Palasts are illegal as they come, but Arpaio’s sophisticated deportee-sniffer didn’t stop this white boy from entering his sanctum.

But that’s the point, isn’t it? Not to stop non-citizens from entering Arizona — after all, who else would care for the country club lawn? — but to harass folks of the wrong color: Democratic blue.

***************

Greg Palast has investigated the illegal disenfranchisement of voters for BBC Television, Rolling Stone (with Robert Kennedy Jr.), Harper’s, The Nation and Truthout.org. Palast co-authored the investigative comic book, “Steal Back Your Vote” with Robert F. Kennedy Jr., available in full color print or for download at www.StealBackYourVote.com for a donation to the not-for-profit Palast Investigative Fund.

April 28th, 2010

Guantanamo commissions: Old wine in new shiny bottles

Amy Davidson comments in the New Yorker on the disturbing spectacle of Obama’s new celebrity prosecutor for accused child soldier Omar Khadr in Guantanamo. After all, there will be great honor is convicting long-tortured 15-year old captive Khadr rather than the adults who tortured him:

If a heroic figure from the scandal surrounding the Bush Administration’s firing of U.S. Attorneys is offered up as the “new face,” as the Miami Herald put it, of the military commissions at Guantánamo, does that burnish Gitmo or diminish him? And does it make any difference that David Iglesias, who unjustly lost his U.S. Attorneys and is now a prosecutor for the commissions, was one of the models for the Tom Cruise character in “A Few Good Men?” (At least we’re not dealing with a model for the Demi Moore character—the fretting would be a bit much.) That doesn’t matter, in terms of his legal ability, but his role in Guantánamo is not just prosecuting cases. From the Herald:

The Pentagon airlifted 35 journalists to this remote base Monday—and unveiled a celebrity spokesman: Navy Reserves Capt. David Iglesias.

The paper described him “appearing for the cameras in his crisp Navy whites,” and said that he

has emerged as a telegenic advocate of the Obama-era war court where he waits to prosecute his own case.

It is not quite right to say that this appearance was Iglesias’s unveiling; Esquire did a profile of him last winter, which asked whether he was such a good guy that he could actually “redeem” Guantánamo. Redeem it how? Esquire told the story of how, after the U.S. Attorneys scandal played out, Iglesias worried about becoming “jaded and cynical,” so he answered an e-mail sent to Navy reservists looking for a few JAGss for Guantánamo:

Now he waits for the Obama administration to declare whether he will be allowed to continue working, whether the legal apparatus created by the Bush administration to try and—most important—convict the “enemy combatants” detained at Guantánamo is legal, useful, and necessary. And his faith now is simply this: It will. His faith is that the Obama administration will realize that there is no alternative to the system already in place for the prosecution of terrorists, and that he will get to try his cases.

No alternative? The Constitution and more than two centuries of jurisprudence offer another way “to try and—most important—convict” alleged terrorists, one better tested than anything the Bush lawyers came up with. Do we think that the problem with Guantánamo is that the prosecutors the last Administration sent there simply weren’t honorable enough? (Some have been extraordinarily honorable.) That idea is even more dangerous than it is facile, in that it ignores the traps nice people can fall into. The system at Guantánamo was, by the time Bush left office, measurably better than at the beginning, thanks to a few good Supreme Court decisions. But it is still deeply flawed. Conducting a case in what one views as an honorable manner, when the terms themselves are dishonorable, is not going to transform the terms. The problem, looking at Iglesias, is similar to the one many critics of Guantánamo have regarding President Obama. We know that Obama is sorry that the Bush Administration set things up the way it did—but there are only so many points one gets for that. His executive order directing that Guantánamo be closed within a year remains unexecuted, and his Administration now thinks that it can hold some prisoners indefinitely. Who has he become? Obama’s regrets, and Iglesias’s rectitude, are not enough to make Guantánamo what it isn’t. The place itself has to change, before it thoroughly changes them.

They may be running out of time. Those reporters were flown in to see Iglesias this week because hearings in the Obama Administration’s first military commission are getting under way. This is the case of Omar Khadr. Who would he be in “A Few Good Men,” a movie set in Guantánamo Bay when the base’s cultural meaning was very different? Part of the faceless threat Demi Moore’s character sees looming just across the line? Scary and cackling, like Jack Nicholson? None of that really fits; first of all, if you put Khadr in a movie, you would need two actors, one for the fifteen-year-old boy he was when he was captured in Afghanistan and accused of throwing a grenade at an American, and one for the twenty-three-year old he is now, having spent more than a third of his life in Guantánamo. Khadr, whose case I’ve written about before, is Canadian. He is widely regarded as a child soldier there. (The Globe and Mail, putting things in Canadian terms, noted today that when he was captured “Sidney Crosby, less than a year younger than Mr. Khadr, had just finished a stunning 90-plus goal season for Dartmouth Subways, a Midget hockey team.”) Khadr was with members of Al Qaeda because his father brought him there.

In some ways, the character Khadr most resembles in “A Few Good Men” might be one of the young Marines who are on trial, accused of murdering another Marine, whom they’d hazed on Jack Nicholson’s orders. There are differences, obviously, that work in more than one direction: the Marines are not Al Qaeda; those characters, unlike Khadr, were adults. And, in the movie, Tom Cruise gets them out of jail.

April 28th, 2010

Is Arizona leading the way?

Rachel Maddow shows the origins of the Arizona anti-immigrant bill in White supremacist and eugenics circles:

Visit msnbc.com for breaking news, world news, and news about the economy

John Stewart also explores the new bill in the context of recent actions by the Arizona government. [for more background on Arizona politics, red this summary from TPM.]:

Given the climate in the country right now, we have to fear that Arizona is just the beginning. A vigorous response is needed. Now. Before its too late.

Presente, supported by the School of the Americas Watch, are calling for a boycott of Arizona. Seems like a reasonable idea.If you agree, go sign their statement to Arizona leaders here.

April 27th, 2010

Army failing with wounded warrior program

Feeling Warehoused in Army Trauma Care Units

By James Dao and Dan Frosch

A year ago, Specialist Michael Crawford wanted nothing more than to get into Fort Carson’s Warrior Transition Battalion, a special unit created to provide closely managed care for soldiers with physical wounds and severe psychological trauma.

A strapping Army sniper who once brimmed with confidence, he had returned emotionally broken from Iraq, where he suffered two concussions from roadside bombs and watched several platoon mates burn to death. The transition unit at Fort Carson, outside Colorado Springs, seemed the surest way to keep suicidal thoughts at bay, his mother thought.

It did not work. He was prescribed a laundry list of medications for anxiety, nightmares, depression and headaches that made him feel listless and disoriented. His once-a-week session with a nurse case manager seemed grossly inadequate to him. And noncommissioned officers — soldiers supervising the unit — harangued or disciplined him when he arrived late to formation or violated rules.

Last August, Specialist Crawford attempted suicide with a bottle of whiskey and an overdose of painkillers. By the end of last year, he was begging to get out of the unit.

“It is just a dark place,” said the soldier, who is waiting to be medically discharged from the Army. “Being in the W.T.U. is worse than being in Iraq.”

Created in the wake of the scandal in 2007 over serious shortcomings at Walter Reed Army Medical Center, Warrior Transition Units were intended to be sheltering way stations where injured soldiers could recuperate and return to duty or gently process out of the Army. There are currently about 7,200 soldiers at 32 transition units across the Army, with about 465 soldiers at Fort Carson’s unit.

But interviews with more than a dozen soldiers and health care professionals from Fort Carson’s transition unit, along with reports from other posts, suggest that the units are far from being restful sanctuaries. For many soldiers, they have become warehouses of despair, where damaged men and women are kept out of sight, fed a diet of powerful prescription pills and treated harshly by noncommissioned officers. Because of their wounds, soldiers in Warrior Transition Units are particularly vulnerable to depression and addiction, but many soldiers from Fort Carson’s unit say their treatment there has made their suffering worse.

Some soldiers in the unit, and their families, described long hours alone in their rooms, or in homes off the base, aimlessly drinking or playing video games.

“In combat, you rely on people and you come out of it feeling good about everything,” said a specialist in the unit. “Here, you’re just floating. You’re not doing much. You feel worthless.”

At Fort Carson, many soldiers complained that doctors prescribed drugs too readily. As a result, some soldiers have become addicted to their medications or have turned to heroin. Medications are so abundant that some soldiers in the unit openly deal, buy or swap prescription pills.

Heavy use of psychotropic drugs and narcotics makes it difficult to exercise, wake for morning formation and attend classes, soldiers and health care professionals said. Yet noncommissioned officers discipline soldiers who fail to complete those tasks, sometimes over the objections of nurse case managers and doctors.

At least four soldiers in the Fort Carson unit have committed suicide since 2007, the most of any transition unit as of February, according to the Army.

Senior officers in the Army’s Warrior Transition Command declined to discuss specific soldiers. But they said Army surveys showed that most soldiers treated in transition units since 2007, more than 50,000 people, had liked the care.

Those senior officers acknowledged that addiction to medications was a problem, but denied that Army doctors relied too heavily on drugs. And they strongly defended disciplining wounded soldiers when they violated rules. Punishment is meted out judiciously, they said, mainly to ensure that soldiers stick to treatment plans and stay safe.

“These guys are still soldiers, and we want to treat them like soldiers,” said Lt. Col. Andrew L. Grantham, commander of the Warrior Transition Battalion at Fort Carson.

The colonel offered another explanation for complaints about the unit. Many soldiers, he said, struggle in transition units because they would rather be with regular, deployable units. In some cases, he said, they feel ashamed of needing treatment.

“Some come to us with an identity crisis,” he said. “They don’t want to be seen as part of the W.T.U. But we want them to identify with a purpose and give them a mission.”

Drugs and Addiction

Sgt. John Conant, a 15-year veteran of the Army, returned from his second tour of Iraq in 2007 a changed man, according to his wife, Delphina. Angry and sullen, he reported to the transition unit at Fort Carson, where he was prescribed at least six medications a day for sleeping disorders, pain and anxiety, keeping a detailed checklist in his pocket to remind him of his dosages.

The medications disoriented him, Mrs. Conant said, and he would often wander the house late at night before curling up on the floor and falling asleep. Then in April 2008, after taking morphine and Ambien, the sleeping pill, he died in his sleep. A coroner ruled that his death was from natural causes. He was 36.

Mrs. Conant said she felt her husband never received meaningful therapy at the transition unit, where he had become increasingly frustrated and was knocked down a rank, to specialist, because of discipline problems.

“They didn’t want to do anything but give him medication,” she said.

Other soldiers and health care workers at Fort Carson offered similar complaints. They said that most transition unit soldiers were given complex cocktails of medications that raised concerns about accidental overdoses, addiction and side effects from interactions.

“These kids change their medication like they change their underwear,” said a psychotherapist who works with Fort Carson soldiers and asked that his name not be used because he was not authorized to speak publicly about the transition unit. “They can’t even remember which pills they’re taking.”

Some turned to heroin, which is readily available in the barracks, after becoming addicted to their pain pills, according to interviews with soldiers and health care professionals at Fort Carson.

“We’re all on sleep meds, anxiety meds, pain meds,” said Pfc. Jeffery Meier, who is in the transition unit and said he knew a dozen soldiers in the unit, including a recent roommate, who had used heroin. “The heroin is all that, wrapped into one.”

Fort Carson officials said that addiction to prescription drugs was no more prevalent in the Army than in the civilian world, and that medication was just one element of a balanced treatment that includes therapy.

But they acknowledged that they had found heroin abuse in the transition unit and said they were trying to reduce the use of opiates and synthetic opiates to prevent addiction, not always with success.

“There is active resistance, because they are addicted,” said Lt. Col. Joel Tanaka, the Warrior Transition Battalion surgeon at Fort Carson. “We’ve learned if we don’t assist them and wrap our arms around them, then they go off post and get these drugs illegally.”

Jess Seiwert offers a cautionary tale. A staff sergeant and sniper who was knocked unconscious by roadside bombs in Iraq, he returned to Fort Carson in late 2006 with post-traumatic stress disorder, burns and a variety of aches. Prone to bouts of rage, he often drank himself to sleep and began abusing the painkiller Percocet.

Medical records show that Sergeant Seiwert’s captain thought he was a danger to his wife and needed inpatient psychiatric care. Instead, the sergeant was transferred into Fort Carson’s transition unit in 2008.

In a recent interview, Mr. Seiwert, now discharged from the Army, said he received minimal therapy in the unit but was given ample medication, including the painkillers he abused. “I should have been in inpatient rehab to get me off the drugs,” he said.

Last summer, just months after being medically discharged, he badly beat his wife while bingeing on alcohol and Percocet. He pleaded guilty to a second-degree assault charge and is likely to face five years in prison.

‘Making Things Worse’

Like private outpatient clinics, Warrior Transition Units aim to provide highly individualized care and ready access to case managers, therapists and doctors. But the care is organized in a distinctly Army way: noncommissioned officers, known as the cadre, maintain discipline and enforce rules, often using traditional drill-sergeant toughness with junior enlisted soldiers.

At the top of the command are traditional Army officers, not health care professionals: Brig. Gen. Gary Cheek, head of the Warrior Transition Command, was an artillery officer, and Colonel Grantham an intelligence officer.

Beneath them is what the Army calls its triad of care. Members of the cadre keep a close eye on individual soldiers, much like squad leaders in regular line units. Nurse case managers schedule appointments and assist with medications and therapy. And primary care managers — doctors, physicians’ assistants or nurse practitioners — oversee care and prescribe medicines.

The structure is intended to ensure that every soldier gets careful supervision and that Army values and discipline are maintained. But many soldiers at Fort Carson complained that discipline and insensitive treatment by cadre members made wounded soldiers feel as if they were viewed as fakers or weaklings.

James Agee, a former staff sergeant who transferred into the transition unit after returning from his second tour of Iraq in 2008, said he frequently heard cadre members verbally abuse medicated soldiers who were struggling to get out of bed for morning formation or stay awake for all-night duty.

“They would say, ‘These guys can’t do this because they are crazy,’ ” said Mr. Agee, who received a medical discharge from the Army. “It would make you feel like you were inferior.”

One Army specialist in the unit, who received diagnoses of post-traumatic stress syndrome and traumatic brain injury, said he was ordered to perform 24-hour guard duty repeatedly against the orders of his doctor. The specialist, who asked to remain anonymous because he feared repercussions, said he experienced flashbacks to Iraq during the long hours by himself.

In many cases, the noncommissioned officers have made it clear that they do not believe the psychological symptoms reported by the unit’s soldiers are real or particularly serious. At Fort Hood, Tex., a study conducted just before the shooting rampage there last November — which found that many soldiers in the Warrior Transition Unit thought their treatment relied too heavily on medication — also concluded that a majority of the cadre believed that soldiers were faking post-traumatic stress or exaggerating their symptoms.

Christina Perez, the wife of a transition unit soldier from Fort Carson, said she got into an ugly fight with a member of the cadre who was furious that she had gone over his head to request additional therapy for her husband, a sergeant first class who had sustained a brain injury during one of two tours in Iraq as a tank gunner.

In a meeting, the noncommissioned officer shouted that Ms. Perez’s husband did not deserve his uniform and that he should give it to her instead, Ms. Perez said in a police complaint. No charges were brought.

Eventually her husband, who has headaches and memory loss, was transferred to an inpatient psychiatric clinic in Denver while he awaits a medical discharge. “All they do is make things worse,” Ms. Perez said of the transition unit.

Last year, The Associated Press reported that the transition unit at Fort Bragg in North Carolina had a discipline rate three times as high as the 82nd Airborne Division, the base’s primary occupant.

General Cheek said the Army’s own survey of other major posts showed that discipline rates in transition units were about the same as in regular units.

He asserted that most cadre members, who receive extra pay and training for the job, do their jobs well, working long hours and spending weekends checking on soldiers. Discipline, he said, is a form of tough love.

“If we are going to maintain safe discipline, all rules must apply,” the general said. “We do have an expectation that our soldiers want to get better.”

Bureaucratic Delays

Sgt. Keith Nowicki was an intelligence analyst who was sent back early from his second deployment to Iraq in April 2008 because of severe post-traumatic stress disorder, said his wife, Ashley. Assigned to the Fort Carson transition unit, he spent nearly a year waiting for his medical discharge.

Instead of getting the help he hoped for, he spent much of the time in the unit alone, growing increasingly angry, drinking heavily and abusing Percocet. In early 2009, he separated from his wife. While on the phone with her in March 2009 he shot himself to death. He was due to be discharged at the end of the month.

Though Ms. Nowicki does not attribute her husband’s suicide to the long wait for his discharge, she said the slowness of the process and the lack of support from the transition unit added to his sense of hopelessness.

“It was just a bunch of red tape,” Ms. Nowicki said. “He would spend days trying to track down his own medical records.”

Army officials acknowledged that wait times for medical discharges at Fort Carson had grown. A major reason is that Fort Carson is part of a pilot program with the Department of Veterans Affairs in which the Army and the V.A. collaborate in evaluating soldiers’ injuries. The collaboration between the two bureaucracies is expected to speed up veterans benefits once a soldier leaves the Army, but it can lengthen the initial evaluation period, officials said.

Michael Crawford has been waiting more than a year for his medical discharge. As his anxiety and depression have worsened, so have his problems in the unit. His rank was recently reduced to private in punishment for overstaying leave and using marijuana.

But things are looking up, his mother believes: he will be able to stay with her in Michigan while awaiting his discharge. His mother, Sally Darrow, has already seen one son commit suicide. She believes that Michael would become the second if he had to return to Fort Carson and the transition unit.

“At home, with family and schoolmates, he’s dealing with things better,” Ms. Darrow said. “He’s not safe there.”

April 26th, 2010

Psychologist notes add to CIA torture experimentation evidence

Jeff Kaye in Truthout discusses a tantalizing new tidbit hat adds to the evidence that the CIA was engaged in a systematic research project through its enhanced interrogation torture program:

Psychologists Notes May Indicate Zubaydah Torture Experimentation

By Jeffrey Kaye

One interesting nugget found in newly released CIA documents related to the destruction of 92 torture tapes concerns the unreported existence of psychologist’s notes as a standard part of the interrogation protocol.

In a “top secret” paper (undated) entitled “The CIA Interrogation of Abu Zubaydah, March 2001 – January 2003,” in a section that, though heavily redacted, describes the review of the tapes by a CIA attorney from the Office of General Counsel, “interrogation materials” are described as consisting of “videotapes, logbook, notebook, and psychologist’s notes.”

(The “March 2001″ date on the report is surely incorrect, and should say March 2002, when Zubaydah was captured and brought into the CIA interrogation process. There are many errors and outright lies in the report. One of them concerns the affirmative statement that Zubaydah was “the author of a seminal Al Qaeda manual on resistance to interrogation methods.” This is a step beyond the conditional language used to assert the same claim in other CIA documents. The al-Qaeda manual’s authorship is considered unknown. It was discovered in May 2000 on a computer drive belonging to Anas al-Liby in Manchester, England. Al-Liby was reportedly working then with purported double or triple agent, FBI informant and former US Special Forces member, Ali Mohamed. Al-Liby himself, was, according to a November 2002 story in the UK Guardian, a member of a Libyan al-Qaeda cell that was paid by British intelligence in 1996 to attempt an assassination of Muammar Gaddafi.)

The content of those psychologist notes, should they become available, will indicate to what end CIA interrogators and/or behavioral scientists were measuring the responses of Zubaydah or other prisoners to variations in the interrogation techniques’ application. Variables of interest to CIA psychologists might include head movements and hand movements, facial expressions or microexpressions, used in detecting deception or behavioral manifestations of stress. These types of observation are synonymous with computer analysis and argue for the use of a digital video system or the transfer of analog video into data stored on magnetic or optical medial. The same release of documents to the ACLU that contained the “The CIA Interrogation of Abu Zubaydah,” also described CIA officials asking for “instructions” regarding the “disposition of hard drives and magnetic media” associated with the torture of Zubaydah.

In his or her notes, the CIA psychologist-analyst also would be describing mood; affect (appropriate or not, what it was); observed variations in consciousness, including instances of possible dissociation; and particularly unusual behaviors (e.g., urinating on oneself, or continually masturbating, as Zubaydah was reported to do as a soothing activity for a person highly stressed and regressed).

The examination of psychological variables, such as could be determined upon videotape review, does not rule out other forms of data that could be drawn from the prisoner interrogations. The CIA has noted that it took preliminary medical examinations of prisoners, and that while they were subjected to “enhanced interrogation techniques” they were medically and psychologically monitored daily. Such medical forms of monitoring would include variables associated with the experience of “uncontrollable stress.”

Studying “Uncontrollable Stress” and “Learned Helplessness”

In a number of professional studies, the terms “uncontrollable stress” and “learned helplessness” are used interchangeably, as in this example. The term learned helplessness itself was fashioned by psychologist, researcher and former American Psychological (APA) President Martin Seligman. The theory was taken up by military psychologists James Mitchell and Bruce Jessen to describe the kinds of effects on prisoners the enhanced interrogation techniques were meant to produce. While Seligman spoke to a SERE meeting in 2002 on the subject of learned helplessness, he denies he had any connection with the formation of the Bush-era torture program. Last August, Scott Shane of The New York Times reported that Mitchell visited Seligman’s home, accompanied by CIA psychologist Kirk Hubbard, where “a small group of professors and law enforcement and intelligence officers gathered … to brainstorm about Muslim extremism.”

CIA and Department of Defense (DoD) researchers are known to have experimented (including upon SERE mock torture trainees) with the use of a number of techniques to measure such uncontrollable stress, including functional magnetic resonance imaging (fMRI), acoustic startle eye-blink response (ASER), heart rate variability (HRV), testosterone and neuroendrocrine sampling, particularly of cortisol and neuropeptide-Y (NPY).

Psychologist’s notes might also include preliminary hypotheses in relation to these reactions and the psychological theories of learned helplessness that were driving the interrogations. Perhaps – and this would be even more important – we would discover evidence that the psychologist(s) were conjuring suggestions about ways to manipulate the situation on a day-by-day basis.

From what is known or speculated about a second taping system used in the interrogation of Zubaydah, it seems likely that psychologist notes were also an integral part of the process involved in the use of those tapes.

The specific use of psychologist’s notes corroborates earlier information that ongoing psychological and medical observations were playing a key role in the CIA interrogation process. This was clearly revealed in the various Office of Legal Counsel memos released last year. According to a report by Sheri Fink at ProPublica in May 2009, descriptions of CIA cables released to the ACLU at that time (see PDFs here and here) showed that “medical update[s]” and “behavioral comments” regarding the interrogation of Zubaydah were sent from CIA personnel in the “field” to CIA headquarters on a daily basis. Fink elaborates:

On five occasions between Aug. 4 and Aug. 9, [2002] an additional cable was sent containing “medical information” along with such information as the strategies for interrogation sessions, raw intelligence, the use of interrogation techniques to elicit information, and the reactions to those techniques. The fact that medical information was included in these cables hints that Abu Zubaydah was medically monitored during or after being subjected to those techniques. Both professional organizations and human rights groups have rejected as unethical any monitoring role for medical personnel.

A number of psychologists have been associated with the CIA interrogation program, either directly through participation in the planning and implementation of the torture, or by supporting the presence of psychologists in the interrogation process. The latter issue embroiled the APA in a controversy that led to the exodus of many members. A number of the presidents and other prominent members of the APA have been connected in one way or another to the CIA and DoD interrogation programs, in clear violation of the organization’s own ethical standards.

Last August, Physicians for Human Rights released a white paper that raised the question of medical collaboration with the CIA in constructing its torture interrogation program.

“The [CIA] Inspector General’s report confirms much of what had been reported about the essential role played by health professionals in designing, deploying, monitoring and legitimizing the program of torture, but also raises disturbing new questions which require further investigation,” stated the study “Aiding Torture: Health Professionals’ Ethics and Human Rights Violations Demonstrated in the May 2004 CIA Inspector General’s Report.”

“The possibility that health professionals monitored techniques to assess and improve their effectiveness, constituting possible unethical human experimentation, urgently needs to be thoroughly investigated.”

April 25th, 2010

Colbert on the dangers of immigratrion reform

“My grandfather didn’t travel 4,000 miles across the ocean to see this country overrun by immigrants.”

April 25th, 2010

Music: Tribute to Eddie Quinn

A short video tribute to Eddie Quinn, fabulous Prince Edward Island singer-songwriter and member of the band Fiddler’s Sons:

April 25th, 2010

Torture accountability, in Argentina

The former President of Argentina is headed to jail for torture and other crimes. Eventually the same may happen to our former President and Vice President. Scott Horton fills in the details:

Reynaldo Bignone served as Argentina’s head of state from 1982-83. He was involved in the military coup d’état that brought down Isabel Perón in 1976. Together with a number of other leaders of the military government that followed Perón, he was recently tried in Buenos Aires on charges that he authorized the torture and mistreatment of prisoners, kidnapping, and the operation of extralegal prisons, together with other crimes against humanity.

Bignone argued vigorously that he had immunity because of his position as president and under a series of decrees issued by his successor, Raúl Alfonsín, as well as an immunity law. He also argued that these crimes, largely committed in the late seventies, were barred by the statute of limitations. In his autobiography, El último de facto (The Last De Facto President), Bignone downplayed the charges of torture and kidnapping and argued that the special detention system was necessary in order to address a wave of terrorist violence that was threatening the country’s security. Argentine courts, however, applying international law doctrines that preclude impunity for government officials involved with torture and the operation of secret prisons, among other things, found all these defenses unavailing, and concluded that his claimed motivation to combat terrorism was irrelevant.

Bignone was convicted and received a 25-year sentence this week. His plea that he be allowed to serve his term under house arrest was denied because of the gravity of his crimes. He was ordered transferred to a prison outside of Buenos Aires. The Buenos Aires Herald reports:

Former dictatorship President Reynaldo Bignone, accused of human rights violations in the Campo de Mayo military garrison, has been sentenced to 25 years in regular prison, a court in the San Martin district in north-western Greater Buenos Aires area reported. Bignone, who is 81 years old and remained until now under house arrest, has been sentenced to 25 years in regular prison. Court announced he was found guilty of 11 illegal raids, 6 robberies, 15 illegal deprivation of liberty, 29 disappearances and 38 cases of torture. He was scheduled to pronounce “his last words” earlier along with other several former military commanders standing trial, and the verdict was read at 4:30 pm…

Meanwhile, the head of the Grandmothers of Plaza de Mayo, Estela de Carlotto, celebrated the sentence, “Justice came late, but it came. There are 114 condemned cases and it’s an example because we are leading the way in this area.”

The case of Reynaldo Bignone may make instructive reading for former Vice President Dick Cheney and CIA Deputy Director Steven Kappes. Cheney is in retirement, and Kappes is preparing to leave the agency. Both should be cautious about any future travel plans.

April 24th, 2010