Psyche, Science, and Society

Fox News focus group on debate I

The Luntz Fox News focus group watching the debate went overwhelmingly for Obama. McCain:too angy, bumbly, stuck in the past.

Add comment September 27th, 2008

Carl Levin on the export of SERE techniques to Iraq

Below I reported on yesterday’s important Senate Armed Services Committee [SASC], hearing on the export of SERE techniques to Iraq. Here I’ll post Senator Carl Levin’s Opening Statement, which summarize some of the key findings from the two rounds of SASC hearings. We eagerly look forward to the completed committee report, some time before the end of the Congressional session.

Here in Senator Levin’s Statement:

In June 2008, this Committee held a hearing on the origins of aggressive interrogation techniques used against detainees in U.S. custody at Guantanamo, Abu Ghraib, and elsewhere. At that hearing, the Committee heard how techniques such as stress positions, forced nudity, and sleep deprivation – used in military Survival Evasion Resistance and Escape or “SERE” training to teach U.S. personnel to resist abusive interrogations, and based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions – were turned on their head and authorized at senior levels of our government for use in interrogations of detainees in U.S. custody. Today’s hearing will cover one way that those techniques made their way to Iraq.

While some have claimed that detainee abuses at Abu Ghraib and elsewhere were simply the result of a few bad apples acting on their own, at our June hearing we heard that as far back as December 2001, senior Department of Defense officials, including from General Counsel William J. “Jim” Haynes’s office, sought out information from the Joint Personnel Recovery Agency (JPRA), the DoD agency responsible for overseeing SERE training. We heard how, when he later reviewed a request from Guantanamo Bay (GTMO) to use techniques similar to those used in SERE training, Mr. Haynes ignored strong concerns from the military services that some of the techniques were illegal, cut short an effort by the Legal Counsel to the Chairman of the Joint Chiefs of Staff to conduct a legal and policy review of the techniques, and recommended that the Secretary of Defense approve most of them for use against detainees. In December 2002, Secretary Rumsfeld approved Mr. Haynes’s recommendation, sending the message that stripping detainees, placing them in stress positions, and using dogs to intimidate them was acceptable. Policies authorizing some of those same abusive techniques in Afghanistan and Iraq followed the Secretary’s decision. We’ll hear this morning how one military commander in Iraq sought and obtained interrogation support from JPRA, an agency whose expertise, again, is in teaching soldiers to resist abusive interrogations conducted by our enemies.

We’ll hear from Colonel Steven Kleinman, the former Director of Intelligence at the JPRA’s Personnel Recovery Academy and retired Colonel John R. Moulton II, former Commander, JPRA. Both witnesses have been cooperative with the Committee’s inquiry and I thank them for their appearance here today.

Some new information and recently declassified documents [PDF] provide further insight into the extent to which SERE resistance training techniques influenced detainee interrogations conducted by U.S. personnel and the role of senior officials in approving policies authorizing the use of those techniques against detainees.

At our June 17th hearing, we heard that the Department of Defense General Counsel’s office, led by Jim Haynes, sought advice from JPRA as far back as December 2001. Specifically, in mid-December 2001, Deputy General Counsel for Intelligence Richard Shiffrin solicited information from JPRA on detainee “exploitation.” JPRA Chief of Staff Lieutenant Colonel Daniel Baumgartner responded to Mr. Shiffrin’s call with a six page fax. An unclassified fax cover sheet addressed to Mr. Shiffrin and dated December 17, 2001 [TAB 1] states that the document provided JPRA’s “spin on exploitation” and that if the General Counsel’s office needed “experts to facilitate this process” that JPRA stood “ready to assist.” That December 2001 call from Mr. Shiffrin appears to have been JPRA’s first foray into “offensive” interrogation operations, but other efforts soon followed.

On April 16, 2002, Dr. Bruce Jessen, who was then the senior SERE psychologist at JPRA, circulated a draft “exploitation plan” to JPRA Commander Colonel Randy Moulton and other senior officials at the agency. Emails exchanged between Dr. Jessen and Colonel Moulton [TAB 2] suggest that JPRA intended to seek approval of the exploitation plan.

Also in the spring of 2002, the CIA sought approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida detainees. In a written response to questions I sent her in July 2008, Secretary of State Condoleezza Rice, who was then the National Security Advisor to the President, responded on September 12th that, in 2002 and 2003 there were meetings at the White House where specific CIA interrogation techniques were discussed. [TAB 3] I also asked Secretary Rice whether she attended meetings where SERE training was discussed. Secretary Rice responded that that she recalled being told that U.S. military personnel were subjected in training to “physical and psychological interrogation techniques.” Her legal advisor at the time, John Bellinger, said in his September 12th written answers to my questions that he was present in meetings at the White House or the Eisenhower Executive Office Building “at which SERE training was discussed.” [TAB 4]

Secretary Rice also wrote in her September 12th response that John Yoo, Deputy Assistant Attorney General at the Department of Justice’s Office of Legal Counsel (OLC), provided legal advice at “several” meetings that she attended and that the Department of Justice’s advice on the program “was being coordinated by Counsel to the President Alberto Gonzales.” She wrote that CIA’s interrogation program was reviewed by NSC Principals and that Secretary of Defense Donald Rumsfeld participated in that review. Secretary Rice said that when CIA sought approval of the interrogation program she asked Director of Central Intelligence George Tenet to brief the Principals and asked Attorney General John Ashcroft to “personally advise NSC Principals whether the program was lawful.” Mr. Bellinger, her Legal Advisor, wrote that he asked CIA lawyers to seek legal advice not only from the OLC, but also from the Criminal Division of the Department of Justice, headed at the time by Michael Chertoff.

The meetings referred to by Secretary Rice and Mr. Bellinger were not meetings between low-level bureaucrats. These were the most senior officials in the United States government, advisors to the President, meeting in the White House.

Mr. Bellinger said that some of the legal analyses of proposed interrogation techniques that were prepared by the Department of Justice referred to “the psychological effects of military resistance training” and that during the 2002-2003 timeframe, he “expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations.”

At our June 17th hearing, the Committee heard that in July 2002, prompted by a request from DoD General Counsel Jim Haynes, Deputy General Counsel for Intelligence Richard Shiffrin called JPRA and asked for a list of physical and psychological pressures used in SERE training. In response to that request, on July 26, 2002, JPRA provided a list of techniques that included stress positions, waterboarding, slapping, sleep disruption, and sensory deprivation. The JPRA list also made reference to a section of the JPRA manual that talks about “coercive pressures,” like treating a person like an animal. Mr. Shiffrin testified that part of the reason the General Counsel’s office sought the information was its interest in reverse-engineering the techniques for use offensively in detainee interrogations.

At that hearing we also heard that in October 2002, Major General Michael Dunlavey, the Commander at Guantanamo, requested authority to use some of the same SERE resistance training techniques that had been on the list JPRA provided to Mr. Haynes’s office in July.

The military services registered serious concerns about the legality of some of the techniques in Major General Dunlavey’s request and Rear Admiral Jane Dalton, who was the Legal Counsel to the Chairman of the Joint Chiefs of Staff, testified that she initiated a broad based legal and policy review of the request. But, at Mr. Haynes’s request, her review was cut short by General Richard Myers, the Chairman of the Joint Chief of Staff. Mr. Haynes subsequently recommended that Secretary of Defense Donald Rumsfeld approve most of the techniques in Major General Dunlavey’s request. Again, on December 2, 2002 Secretary Rumsfeld approved Mr. Haynes’s recommendation, authorizing the use of aggressive interrogation techniques at GTMO, including stress positions, instilling fear through the use of dogs, and removal of clothing.

At the June 17th hearing, we heard from then-Navy General Counsel Alberto Mora about concerns he raised in December 2002 and January 2003 with Mr. Haynes about interrogations at GTMO. We learned from John Bellinger, the NSC legal advisor, in his September 12th response to my questions, that on several occasions, Deputy Assistant Attorney General Bruce Swartz raised concerns with him about allegations of detainee abuse at GTMO. Mr. Bellinger wrote to me that he, in turn, raised these concerns “on several occasions with DoD officials.” In her September 12th response, Secretary Rice wrote that Mr. Bellinger also advised her “on a regular basis regarding concerns and issues relating to DoD detention policies and practices at Guantanamo.” She wrote that as a result she convened a “series of meetings of NSC Principals in 2002 and 2003 to discuss various issues and concerns relating to detainees in the custody of the Department of Defense.”

At our last hearing, I described how aggressive techniques authorized by the Secretary of Defense for use at GTMO made their way to Afghanistan and Iraq. Many of those same techniques were authorized by senior military commanders. For instance, on September 14, 2003 Lieutenant General Ricardo Sanchez, the Commander of Combined Joint Task Force 7 in Iraq, authorized the use of dogs, stress positions, and other aggressive techniques in interrogations.

In the summer of 2003 the Commander of a special mission unit Task Force in Iraq went further. He contacted JPRA for help with interrogations. Again, JPRA’s expertise is in training soldiers to resist abusive interrogations by enemies that refuse to follow the Geneva Conventions. In response to the Commander’s request, and with explicit approval from the U.S. Joint Forces Command, JPRA’s higher headquarters, JPRA sent an interrogation support team to Iraq. Colonel Kleinman was the team leader during that visit.

Here’s some of what we know about the Iraq trip from unclassified or declassified sources. The Task Force’s request for JPRA “interrogator support” was submitted through official channels and was approved by JFCOM on August 27, 2003. JPRA put together a three person team to support the request. On September 4, 2003, just as the JPRA team was arriving in Iraq, Lieutenant General Robert Wagner, the Deputy Commander of the U.S. Joint Forces Command, JPRA’s senior command, sent an email to Colonel Moulton, the JPRA Commander, about the trip asking, what in JPRA’s “charter places JPRA in the business of intelligence collection?” [TAB 5] Again, just a week earlier, JFCOM had approved the trip. Colonel Moulton replied to Lieutenant General Wagner’s email that “there is nothing in our charter or elsewhere that points us toward the offensive side of captivity conduct” and that JPRA was “well aware of the problems associated with crossing the Rubicon into intel collection (or anything close).”

A second email from Colonel Moulton, however, sent on September 9, 2003 to the JFCOM Director of Operations, stated that “recent history (to include discussions and training with [DIA], USSOCOM, CIA) shows that no DoD entity has a firm grasp on any comprehensive approach to strategic debriefing/interrogation. Our subject matter experts (and certain SERE psychologist) currently have the most knowledge and depth within DoD on the captivity environment and exploitation.” While Colonel Moulton’s email said that JPRA was “NOT looking to expand our involvement to active participation” he noted that JPRA’s “potential participation is predicated solely on the request of the Combatant Commander.”

A recently declassified summary of a 2005 interview with Colonel Moulton [TAB 6] and Colonel Moulton’s prepared statement for today’s hearing both describe conversations he had with Colonel Kleinman while the JPRA team was in Iraq. Colonel Moulton acknowledges telling Colonel Kleinman that the JPRA team was authorized to participate in interrogations using SERE training techniques. Colonel Moulton said he granted that authority only after seeking approval from JFCOM. Colonel Kleinman has said that he objected to the use of SERE training techniques during the trip and that he told Colonel Moulton both that those techniques were inconsistent with the Geneva Conventions and that granting authority for the team to use them was an illegal order. This morning we will hear both Colonel Moulton’s and Colonel Kleinman’s account of those conversations and events that occurred during that trip.

Towards the end of their trip, members of the JPRA team produced a draft Concept of Operations or “CONOP” for the interrogation of detainees. Emails from Captain Daniel Donovan, U.S. Joint Forces Command’s Staff Judge Advocate, reveal some of what the CONOP proposed and what JPRA thought was acceptable.

Captain Donovan, in a September 26, 2003 email to Colonel Moulton and others at JPRA [TAB 7], raised a concern that techniques proposed in the CONOP would “not be legal under the Geneva Conventions.” A few days later in an email to JFCOM leadership [TAB 8] Captain Donovan reiterated his concern stating that “a number of the ‘interrogation techniques’ suggested by JPRA in their draft CONOP are highly aggressive (such as the ‘water board’), and it probably goes without saying that if JPRA is to include such techniques in a CONOP they prepare for an operational unit in another [area of responsibility], they need to be damn sure they’re appropriate in both a legal and policy sense.” Captain Donovan added “JPRA got its list of techniques from a DOD General Counsel Working Group Report dated 6 Mar 03, so I’m sure they felt that their list might have already been ‘blessed’ by Pentagon lawyers.”

The Working Group referred to by Captain Donovan’s email had been established at Secretary Rumsfeld’s direction in January 2003. As the Committee heard at our June 17th hearing, over the strong objections of senior military lawyers, the Working Group relied on a March 14, 2003 legal opinion from the Department of Justice’s Office of Legal Counsel (OLC) written by John Yoo. The Working Group’s final report, issued on April 4, 2003, recommended several aggressive techniques including removal of clothing, prolonged standing, sleep deprivation, dietary manipulation, hooding, increasing anxiety through the use of a detainee’s aversions like dogs, and face and stomach slaps. While the final Working Group report did not mention SERE, many of the techniques it recommended were strikingly similar to techniques used in JPRA SERE training.

Captain Donovan’s email said that that the techniques approved by Secretary Rumsfeld for use at GTMO in April 2003 were not the same as those in the Working Group report and said that what the Secretary had approved was more restrictive. As we heard at our June 17th hearing, Secretary Rumsfeld’s April 2003 memo to U.S. Southern Command (SOUTHCOM), GTMO’s higher headquarters, was silent on most of the techniques in the Working Group’s report. The Secretary’s memo said that if techniques, beyond 24 that he specifically authorized, were required, SOUTHCOM should “provide a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee.” We heard at our last hearing that one such request arrived at the Pentagon just a few months later and was approved by the Secretary.

Secretary of Defense Rumsfeld’s original December 2, 2002, authorization of aggressive interrogation techniques including stress positions, use of dogs and removing detainees clothing and his Working Group’s April 2003 recommendation of many other aggressive techniques, conveyed the message that senior officials felt that physical pressures and degrading tactics were appropriate for use during interrogations of detainees in U.S. military custody. Many of the aggressive techniques the Secretary approved in December 2002, including the three I just mentioned - stripping detainees, putting them in stress positions and using dogs to intimidate them - were used against detainees at Abu Ghraib.

But even the public disclosure of abuses at Abu Ghraib apparently did not eliminate interest in using SERE specialists to provide advice on interrogations. The Department of Defense Inspector General said in its 2006 report that it was only after a request to send a JPRA team to Afghanistan in 2004 that JFCOM finally issued guidance that the use of SERE for “‘offensive’ purposes lies outside the roles and responsibilities of JPRA.” [TAB 10]

Add comment September 26th, 2008

Senate Armed Services Committee on importing SERE techniques to Iraq

Yesterday the Senate Armed Services Committee [SASC], or rather, its Chair, Senator Carl Levin [no other members deigned to come to the hearing on US war crimes] held a hearing on the export of SERE [Survival, Evasion, Resistance, and Escape] tactics to Iraq, leading, eventually, to the atrocities at Abu Ghraib.

At the hearing they heard from Col. Steven Kleinman, an interrogator and former JPRA official [Joint Personnel Recovery Administration, the SERE parent agency] and Col. John Moulton, former JPRA Commander. They testified about Col. Kleinman’s mission to Iraq, in which he was asked to demonstrate SERE techniques. He witnessed abusive interrogations and stopped them. He was then sent back home. Col. Kleinman is one of the heros of this sordid episode.

Documents released at the hearing also contained a questionaire ansered by Secretary of State, and foemer National Security Adviser, Condoleeza Rice in which she admitted being briefed on SERE methods in the White House. She claims to have been  “that these techniques had been deemed not to cause significant physical or psychological harm.” In fact, as was clarified by th hief SERE psychologists at the June 17 SASC hearing, these techniques were deemed safe for use in training US troops, because of the combination of psychological screening, careful monitoring, ability of troops to stop at any time, and extensive multi-session debriefings afterwards. This psychologist did not claim or provide any evidence that these techniques were safe when used as interrogation techniques of captured detainees.

There are many other goodies revealed in these hearings that I am only beginning to understand.

The AP and Washington Post covered the hearings. I will here post the AP account. Then I will post Senator Levin’s Opening Statement separately. Here is the AP:

Interrogator details pre-Abu Ghraib abuses

By Pamela Hess

WASHINGTON — A military interrogation expert, Air Force Col. Steven Kleinman, told Congress on Thursday that prior to the abuses at Abu Ghraib, he witnessed interrogations of Iraqi detainees that he considers violations of the Geneva Conventions.

One interrogation was conducted by an Air Force civilian and a contractor employed by his own organization, the Joint Personnel Recovery Agency. It had sent a small team to Iraq in September 2003 to help a special forces task force improve its interrogations of stubborn prisoners. The team was asked to demonstrate an interrogation on an Iraqi prisoner. It was an unusual role for the organization, which trains soldiers how to resist interrogations, not conduct them.

Kleinman said his two colleagues forcibly stripped an Iraqi prisoner naked, shackled him and left him standing in a dank, six-foot cement cell with orders to the guards that the prisoner was not to move for 12 hours. Had the prisoner passed out, he would have hit his head on a wall, Kleinman said.

Kleinman stopped the interrogation, which had veered from his careful plan into abuse.

“Until their time in Iraq they had never seen a real world interrogation,” he said.

The men, Terrence Russell and Lenny Miller, had learned the harsh techniques working with the Survival, Evasion, Resistance and Escape (SERE) training program for U.S. forces, which conducts stressful mock interrogations to prepare soldiers to withstand and resist abusive questioning in the event they are taken prisoner. The program uses methods derived from the real-life experiences of American prisoners of war. The techniques include forced nudity, stress positions, exposure to extremes in weather and waterboarding, a form of simulated drowning.

Russell is a civilian JPRA employee involved in research and program development. Miller was a contractor who no longer works for JPRA, according to the military.

Joint Forces Command, which oversees JPRA, did not investigate Kleinman’s allegations because they were made directly to the task force in Iraq, said spokesman Capt. Dennis Moynihan.

Attempts to locate Russell and Miller independently were unsuccessful.

At the time, Kleinman called his now retired commander, Col. John Moulton II, to express concern about the harsh methods he saw being used in several interrogations. He said Moulton checked with his superiors and called him back to say the techniques had been specifically approved. Moulton later told investigators that he understood that the Pentagon’s general counsel or higher had approved the measures, and that the prisoners were considered terrorists and were not protected by the Geneva Conventions.

The Geneva Conventions, however, did apply in Iraq.

The Senate Armed Services Committee also released responses from Secretary of State Condoleezza Rice and legal counsel John Bellinger regarding their knowledge of the CIA interrogation program when Rice was the national security adviser and Bellinger was the National Security Council’s top lawyer.

She and Bellinger were also briefed on SERE interrogation methods at the White House in 2002 or 2003.

“I recall being told … that these techniques had been deemed not to cause significant physical or psychological harm,” Rice wrote.

Rice told the committee the CIA had sought NSC approval before embarking on its own harsh interrogation program in the spring of 2002. Rice said she asked then-Attorney General John Ashcroft to review its legality. The Justice Department’s Office of Legal Counsel, which advises the White House on legal matters, later determined the CIA’s program to be legal.

Rice also said Bellinger advised her regularly about “concerns and issues” relating to the Pentagon’s interrogation and detention program at Guantanamo Bay Naval Base. She said the Justice Department never discussed with her the FBI’s now documented concerns with interrogation practices at Guantanamo Bay and CIA detention facilities.

Bellinger said he knew the FBI refused to participate in some CIA interrogations, which included waterboarding for at least three detainees. He was also aware of allegations of abuse at Guantanamo in 2003.

Also Thursday, the Senate Judiciary Committee took a step closer to forcing the Justice Department to hand over secret legal memos authorizing the Bush administration to use harsh and potentially illegal interrogation techniques on detainees.

By a 10-9 vote, the committee agreed to give the chairman, Sen. Patrick Leahy, D-Vt., authority to subpoena the memos from the Office of Legal Counsel. It is now up to Leahy to decide whether to issue the subpoena, which the Justice Department likely will fight because much of the information in the memos is highly classified.

Justice spokesman Brian Roehrkasse did not answer a question about whether the department would comply with such a subpoena.

“We regret that the committee authorized the subpoena,” Roehrkasse said in a statement. “We will continue to work with them to ensure that their legitimate oversight needs are met.”

Add comment September 26th, 2008

Rachel Maddow on US torture

Rachel Maddow on US torture, as directed out of the White House. She interviews Alex Gibney, Director of Taxi to the Dark Side, now on HBO.

[H/t to Mike in comments.]

Add comment September 26th, 2008

Resignation leaves National Institutes of Health leaderless

Revere at Effect Measure explains what’s going on at the National Institutes of Health [NIH] as the Director resigns, and the implications for U.S. science:

Like a lot of other research scientists supported by NIH I got an email yesterday from NIH Director Elias Zerhouni announcing his intention to leave his position “to devote much of my attention to writing.” At least it wasn’t the hackneyed “to spend more time with my family.” While Zerhouni won’t actually leave until the end of next month, the federal health research establishment is essentially leaderless, awaiting the next administration. The main public health institute within the NIH system, the National Institute for Environmental Health Sciences (NIEHS) has been under “Acting” (although quite capable) for many months after its previous Director resigned under fire (see here, here, here, here and here). That scandal reached all the way to Director Zerhouni’s office, although Zerhouni himself left no fingerprints. In any event, his departure is not a surprise. It was widely predicted he would resign over the summer in time to take an academic job. His plans to “devote time to writing” and the timing of the announcement after the start of the academic year suggest he wasn’t able to secure a top level academic position.

Zerhouni presided over tumultuous years at NIH. The doubling of the NIH budget in the five years prior to 2003 created a pig in a python effect when the budget flatlined and all the new post docs, graduate students, laboratories and research projects stimulated by the doubling were left high and dry. Now the budget is at about what it was in real dollars before the doubling but there are many more mouths to feed and lab benches to maintain. Basic health research is facing its own financial meltdown as existing grants aren’t being renewed and the hands that do the work — the post docs and graduate students — are leaving the field and the research programs they were a part of are withering. This is creating a crisis in leadership in academic science in the US, as the post docs leave for other work and the mid level academics coming up for tenure can’t get their grants renewed and have to leave their institutions to look for other positions and start over or leave research altogether.

The result will be continued erosion of US leadership in the basic sciences. The current financial crisis and wasteful and atrocious war in Iraq have squandered enormous quantities of federal resources, a small fraction of which could have strengthened the kind of science that would benefit everyone. Instead we will see the basic science foundation of the country weakened.

Zerhouni is getting out while the getting is good.

Add comment September 26th, 2008

Another Guantanamo prosecutor quits, citing ethics worries

The prosecutor of Mohammed Jawad has now joined several other Guantanamo prosecutors in resigning because of concerns about the unethical behavior of the prosecution. Evidently they are still withholding information vital to the defense. Given the materials already, albeit grudgingly,:released, one can only assume that the material being withheld is horrific and seriously damaging to the entire Guanatanmo project:

Guantanamo Prosecutor Quits, Says Evidence Was Withheld

By Peter Finn

GUANTANAMO BAY, Cuba, Sept. 25 — A military prosecutor involved in war crimes cases here has quit his position, citing ethical concerns about his office’s failure to turn over exculpatory material to attorneys for an Afghan detainee scheduled to go to trial in December.

Army Lt. Col. Darrel Vandeveld, a reservist, who declined to be interviewed, filed a declaration with a military court here Wednesday, laying out his concerns about the case and procedures in the military prosecutor’s office, according to defense attorneys.

“My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery,” wrote Vandeveld in his filing. “I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain ‘procedure’ for affording defense counsel discovery.”

Vandeveld’s departure is the latest blow to the military trials process and a prosecutor’s office that has been buffeted by resignations over issues of fairness. Other officials have alleged that the leadership of the military commissions is sacrificing principles of justice in a rush to secure convictions.

Vandeveld was prosecuting Mohammed Jawad, 24, who is accused of tossing a grenade into a military jeep at a bazaar in Kabul in 2002, injuring two U.S. troops and their Afghan interpreter.

“I believe [Vandeveld's] view is that there is a systematic problem with the discovery process,” said Air Force Maj. David Frakt, Jawad’s military attorney, referring to the prosecution’s obligation under the law to turn over material to the defense even if it damages the prosecution’s case. “He decided he could no longer ethically serve on this case, or generally.”

Frakt said that Vandeveld wanted to reach a plea agreement that would allow Jawad, who was 16 or 17 at the time of the attack, to be released in the very near future. Frakt said there were serious questions about Jawad’s guilt and that the government failed to investigate two other Afghans who he said admitted to Afghan police to having roles in the attack.

Frakt, speaking to reporters here, said he would seek to have the case dismissed because of “gross government misconduct.”

The chief prosecutor, Army Col. Lawrence Morris, declined to discuss any potential plea agreement. He said Vandeveld resigned because he is “disappointed” his superiors “didn’t see the wisdom of his recommendations.”

“There are no grounds for ethical qualms,” Morris said in a conference call with reporters here. “We are the most scrupulous organization you can imagine in terms of disclosure to the defense.”

A Pentagon official, Brig. Gen Thomas W. Hartmann, was ordered by a military court to have no further involvement in the Jawad case last month. Hartmann was the legal adviser to the Convening Authority, a Pentagon office that is required to exercise a neutral role in the running of the military commissions.

The defense alleged that Hartmann wanted Jawad prosecuted for political and public relations purposes. And the judge found that Hartmann had compromised his objectivity.

Hartmann did not respond to requests for comment Wednesday.

Word of Vandeveld’s resignation came on the same day that a military judge rejected a formal motion by Khalid Sheik Mohammed, the self-described operational mastermind of the Sept. 11, 2001, attacks, to disqualify himself because of bias and the possibility that his upcoming retirement could disrupt the process.

“It is clear you are retiring before [the trial] is completed,” Mohammed told Marine Col. Ralph H. Kohlmann, the presiding judge, at a hearing earlier Wednesday, arguing that Kohlmann might inappropriately rush the proceedings. Three of the five defendants in the case, including Mohammed, are representing themselves with the assistance of military and civilian attorneys.

Kohlmann said Mohammed’s claims were “completely wrong” and briskly rejected each argument offered as a basis for disqualification.

Kohlmann told the court during a hearing this week on his impartiality that he is scheduled to retire April 1 and has lined up a new job. Defense attorneys said that factoring in unused leave time, Kohlmann could be gone as early as mid-January.

Kohlmann, who is responsible for appointing judges to cases here, selected himself for the trial, the most-watched proceeding at Guantanamo Bay.

Navy Lt. Cmdr. James E. Hatcher, the lead military attorney for defendant Tawfiq bin Attash, said that if a new judge is appointed, a new round of pretrial hearings would be required and the new judge would be forced to reexamine earlier rulings.

That could set back a process that still lacks a trial date and promises to be protracted.

The loquacious Mohammed, as he does on most days, took the lead in speaking for the other four defendants, all of whom face the death penalty if convicted on various murder and war crimes charges.

CIA Director Michael V. Hayden has confirmed that Mohammed was subject to waterboarding, a technique that simulates drowning, among other tactics when he was held by the intelligence agency. But the Bush administration has argued that the coercive interrogation techniques it sanctioned did not amount to torture.

Defense attorneys said they will seek to exclude from trial all evidence extrac

Add comment September 25th, 2008

Six months jail time for spilling soda in Bush’s VA hospital

Just when you think you’ve heard it all in contemporary America. In this bizarre tale, Scott Horton alerts us to what our federal resources — both VA and Justice Department — are being used for. In order to prosecute a woman for refusing to pay $3.80 for a cup of soda, they violate medical record considentiality and expend scare Justice Department resources:

Unexpected Consequences from a Mug of Soda

By Scott Horton

The Bush Justice Department continuously tells us it is beleaguered, under-resourced, and having a hard time battling crime. But sometimes its enthusiasm for a prosecution is just effervescent. The latest episode showing the Justice Department’s more than curious notions of justice can be found this week in the pages of the Idaho Statesman. Natalie Walters is now facing prosecution that could put her in prison for six months. Her crime? She poured a cup of Diet Coke on a counter in a Veteran’s Administration cafeteria.

The 39-year-old North Idaho resident periodically drives her father, a disabled Vietnam veteran, to Boise’s VA Medical Center for doctor visits. She brings her own mug and fills it with soda in the hospital’s cafeteria. The cafeteria does not have a posted price for refills and typically the cashier charges her $1 or $1.50, Walters said.

But on Aug 20, when Walters filled her mug with Diet Coke, the clerk charged $3.80. “I told her that cannot be right and asked to talk to the manager,” Walters said. The manager told Walters the price is correct. Walters decided she didn’t want to pay that much and offered to return the soda, she said. But the manager told her there was no way to accept the returned soda, so Walters had to pay. Walters refused, and she said she was angry by this point, and she poured the soda onto the counter. The manager banned Walters from the cafeteria. Walters left but remained in the hospital for a couple of hours waiting for her father to finish his appointments. No one came to talk to her, so she assumed the soda ordeal was over.

Evidently not. VA bureaucrats used surveillance cameras to monitor her movements in the hospital and then, in what was possibly a criminal act, and certainly an unethical one, accessed the medical records of her father to demand that he be in touch with his daughter and pressure her to turn herself in over the spat.

The VA turned the matter over to Idaho U.S. attorney, Thomas E. Moss, who prides himself on having been picked as an adviser to Alberto Gonzales. Moss literally decided to make a federal case of it by bringing a prosecution. Remember, this is the same Bush Justice Department which has advised Congress that it “lacks the resources” to investigate or prosecute more than 30 rape cases involving contractors in Iraq, and which recently decided that senior Republican appointees caught in a massive corruption, cocaine and illicit sex scandal at the Interior Department weren’t worth going after. The Justice Department knows, however, just where its priorities lie.

And that $3.80 cup of Diet Coke? A former Coca-Cola bottling executive told me that the cost to a vendor in syrup and carbonated water of a Diet Coke dispensed in an 8-ounce container would be approximately 8 cents ($0.08). The profit margin that the VA was seeking on the sale was therefore staggering–price gouging directed at visitors and patients at a Veteran’s facility. (I didn’t factor in the ice, but still.) It’s good to know the Justice Department’s priorities, but unfortunate that justice is not one of them.

Add comment September 20th, 2008

McCain morally unfit

As we face the true horror of what John McCain calls his “campaign,” we know that the country is at a crucial turning point. Will we let these Rovian tactics win an election to keep in power a group worse, more corrupt, and more incompetent than those who’ve ruined the country over the last 5 years? If there is no limit to what filth and lies people, and the system, will swallow, then there is no hope for the country. I still expect a mass revulsion, with people saying “Enough!”

John Aravosis at AmericaBlog pulls together two important statements today to which I can only say “Ahmen!”

Josh Marshall:

[W]hat is already apparent is that John McCain is running the sleaziest, most dishonest and race-baiting campaign of our lifetimes. So let’s stopped being shocked and awed by every new example of it. It is undignified. What can we do? We’ve got a dangerously reckless contender for the presidency and a vice presidential candidate who distinguished her self by abuse of office even on the comparatively small political stage of Alaska. They’ve both embraced a level of dishonesty that disqualifies them for high office. Democrats owe it to the country to make clear who these people are. No apologies or excuses. If Democrats can say at the end of this campaign that they made clear exactly how and why these two are unfit for high office they can be satisfied they served their country.

Andrew Sullivan:

McCain made a decision that revealed many appalling things about him. In the end, his final concern is not national security. No one who cares about national security would pick as vice-president someone who knows nothing about it as his replacement. No one who cares about this country’s safety would gamble the security of the world on a total unknown because she polled well with the Christianist base. No person who truly believed that the surge was integral to this country’s national security would pick as his veep candidate a woman who, so far as we can tell anything, opposed it at the time.

McCain has demonstrated in the last two months that he does not have the character to be president of the United States. And that is why it is more important than ever to ensure that Barack Obama is the next president. The alternative is now unthinkable. And McCain - no one else - has proved it.

Add comment September 10th, 2008

WUNC The State of Things interview: Torture and Interrogation Symposium

I was interviewed today, along with law professor Scott Silliman, by Frank Stasio on WUNC, North Carolina Public Radio, on the show The State of Things. Here is the program description:

Torture and Interrogation Symposium

Since the attacks of 2001, there has been growing controversy over the United State’s use of certain interrogation techniques against so-called enemy combatants.  A symposium at the Parr Center at UNC this weekend will address many aspects of this controversy, including the complex and uncertain laws regarding torture, and the surprising role psychologists play in helping the government apply its interrogation methods. Host Frank Stasio will be joined by guests Scott Silliman, professor of the Practice of Law and executive director of the Center on Law, Ethics, and National Security at Duke University, and Stephen Soldz, the director of the Center for Research, Evaluation and Program Development at the Boston Graduate School of Psychoanalysis.

You can listen to or download the program here. I am brought in about 12 minutes into the show.

If you’re near Chapel Hill, come hear me speak on Saturday, September 13.

Add comment September 10th, 2008

Velvel on prosecution of administration war criminals

Dean Lawrence Velvel of the Massachusetts School of Law discusses on his blog issues around possible prosecution of Bush administration figures. He has called a conference for the weekend on Planning For The Prosecution Of High Level American War Criminals. The conference will discuss the following ten topics:

1. Brief introductory remarks stressing that the crimes and misconduct have now occurred twice in forty years — in Viet Nam and then again in Iraq — and that the high level perpetrators need to be punished (as occurred at Nuremberg and Tokyo in 1946) in order to insure that people will not do these things again (as the Germans and Japanese have not committed their crimes again).

2. A discussion of his recent book, The Torture Team, by Philippe Sands, including how Executive Branch lawyers failed in their duties (yet remained in power or gained soft landings (as, e.g., federal judges and professors at leading law schools)).

3. What domestic and international crimes were committed, which facts show crimes under which laws, and what punishments are possible.

4. What high level Executive officials (and federal judges and legislators too, if any) are chargeable with crimes.

5. What international tribunals, foreign tribunals and domestic tribunals (if any) can be used, and how to begin and prosecute cases in front of them.

6. What cases have already been brought, with what results and the reasons for the results.

7. What must be done to make the question of prosecutions an issue in the 2008 political campaign and to have the question become a significant subject in the media and on the internet.

8(a). Creating an umbrella coordinating committee with representatives from the various — and increasing number of — organizations that are involved in cases.

(b). Creating a Center to keep track of and organize compilations of relevant briefs, articles, books, opinions, facts, etc.

9. The possibility of having a Chief Prosecutor’s office ala Nuremberg.

10. Review and summary of the action items that have been decided upon.

Here is a new post by Velvel on legal issues involving prosecution. [Of course, other attorneys differe on their interpretations of these issues. Some feel that prosecutions for torture are ruled out by the justice Department Office of Legal Counsel opinions stating that US "enhanced" interrogation techniques were legal, no matter how wrong-headed the decisions.]:

Attempted Statutory Immunity For The Executive’s War Crimes

By Lawrence Velvel

September 4, 2008

Re: Attempted Statutory Immunity For The Executive’s War Crimes.

By now it seems beyond serious doubt that George Bush and company committed numerous war crimes. There has now been book after book detailing their actions; some of the books are legal in character, even when directed at a much broader audience than lawyers, while others are not legal in nature (e.g., Charlie Savage’s and Jane Mayer’s). The question now, in reality, is not whether crimes have been committed. It is, rather, what if anything to do about them. Suggestions range from doing nothing, to a truth and reconciliation commission, to Congressional hearings (ala the Church committee), to criminal trials before state, federal, foreign or international courts, to civil suits for damages brought by injured persons (e.g., innocent persons — some of whom are Americans) who were detained for months or years and/or physically abused or tortured.

I shall deal here only with certain matters relevant to criminal trials in American courts and possibly relevant, to some extent, to civil trials for damages in domestic courts.

Based on fairly extensive readings from about 2002-2003 until today, it seems pretty clear that people who were responsible for or committed torture were well aware from the get - go that what they were doing constituted crimes. That realization is why CIA officials, from 2002 to 2006 or 2007 demanded memoranda, from the Office of Legal Counsel of the Department of Justice, falsely claiming that the abuse and torture were not criminal acts. The officials wanted these OLC memos so that they could later avoid or defeat prosecutions by claiming that the decisionmaking office of the DOJ had approved the legality of what they were doing. The officials wanted a “golden shield,” a “get out of jail free card.”

As well, knowledge that the acts and Justice Department memoranda supporting them would be strongly opposed if they came to light were among the crucial reasons the acts and supporting memos were kept secret for years. The opposition, it was well understood, would be based both on American concepts of morality and the fact that the acts were violations of both international criminal law and domestic criminal law. It was understood by perpetrators and legal enablers of torture that many lawyers in the Executive Branch and the military would be among the strong opponents of what was being done — lawyers such as the generals and admirals who were the military JAGs, certain armed forces General Counsels, State Department lawyers, and DOJ lawyers. Thus these lawyers were kept out of the loop to the maximum extent possible. Information was kept on “a close hold” or “a very close hold,” information was confined to as few people as possible, so that there would be no knowledge, or as little knowledge as possible, on the part of those who would object to the criminal acts. The perpetrators and enablers feared the objectors would say the acts were criminal, would say so internally if not externally and, in some cases (e.g., if opponents were legislators), might publicly denounce and condemn the actions as criminal.

It is, frankly, impossible to overestimate the crucial importance of, and concern for, secrecy to hide the criminal acts. It was well understood that what was being done could not be done if there were widespread knowledge of it. While the Executive likes to claim that secrecy was essential lest terrorists learn what was being done and prepare themselves for it — the type of claim that in the last few years has been made to cover many Executive misdeeds — it is at least equally if not more true that secrecy was employed because of knowledge that torture and abuse would have to end - - because they would be seen as both immoral and criminal — when and if they and their supporting DOJ memos became widely known.

And, after the immoral and criminal actions did become widely known, the Executive Branch, via the vociferous demands of Dick Cheney, and with the cooperation of a complaisant John McCain, obtained what it hoped would be immunity for its criminal conduct. This was done in two statutory sections. The “McCain Amendment” to the Detainee Treatment Act of 2005 provides that in any criminal or civil case arising out of “specific operational practices” involving “detention and interrogation of aliens” whom Bush or his agents “believe[] to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States . . . and that were officially authorized and determined to be lawful at the time that they were conducted,” it will be a defense that the defendant “did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.” In determining whether an ordinary person would know the practices are unlawful, the McCain Amendment tells courts that “an important factor” to consider is “Good faith reliance on advice of counsel.”

The other immunity-creating provision is Section 7(e) of the Military Commissions Act of 2006. Subsection (1) of the Section provides that no court can grant habeas corpus to an “alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Subsection (2) says no court “shall have jurisdiction to hear or consider any other action . . . relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” (Emphasis added.)

The first part of Section 7(e) of the Military Commissions Act of 2006 — i.e., the “no habeas corpus” provision of 7(e)(1) — was struck down by the Supreme Court in the Boumediene case in 2008. At least some experts say it is not totally clear whether the second part of the Section was also struck down, i.e, whether Subsection 7(e)(2), barring any action other than habeas corpus, was also struck down by the Boumediene decision. I shall assume for purposes of discussion that the Boumediene case did not itself strike down the second subsection, but instead left its legality to be determined in the future.

When one reads the two immunity provisions closely, it is obvious that there are certain holes in the immunity they might otherwise give. For example, the provisions give immunity only where the victim was an alien, not where he (or she?) was a citizen. But there were large numbers of citizens who got detained, got questioned, and in lots of cases were abused or even tortured. Also, the McCain amendment gives immunity only where the acts of abuse or torture were officially authorized and determined to be lawful at the time they were done. But there were lots of acts, apparently, that, when done, either had not yet been officially authorized, or had not been determined lawful, or both.

As well, the second subsection of the Military Commissions Act gives immunity only if the alien has been “determined . . . to have been properly detained as an enemy combatant or is awaiting such determination.” But numerous people who were abused or tortured have now been released without any determination that they were enemy combatants. (Indeed, a court could find that there is no such legal category as “enemy combatant” — in reality there isn’t; it was something that was simply made up by the Executive — so that the provision is in effect a nullity because it gives immunity only for a category that does not lawfully exist.)

There is also a so-called “preemption” issue. The wording of the two statutes does not distinguish between federal courts and state courts, but instead seem to confer immunity in any court. But can this be done? Can the federal government preemptively immunize Bush and company from liability for murder under state law — the crime for which Vincent Bugliosi says Bush and his henchman could and should be prosecuted in state courts?

But aside from the obvious holes in the statute, there is also a broader point, one that, at least morally speaking, and perhaps legally speaking too, is far more important. It goes something like this: Can a person, knowing that acts are unlawful, engage in those acts and then obtain immunity by exercising power over the legislative process and by finding lawyers who are willing to write the most incompetent and atrocious legal opinions designed to give the guilty a get out of jail free card?

It is evident that if these things can be done, then there is an end of law where the truly wealthy and powerful are concerned. Whether it is Al Capone or Dick Cheney, the filthy rich or obscenely powerful will have it in their power to do the most awful things yet escape the law by using contributions or power to obtain immunity from preexisting law and to buy the opinions of immoral lawyers. That is the moral and philosophical basis why these things can’t be permitted. What the precise legal rationale would be is something I’m not sure of, is something on which research must be done. Perhaps there is some constitutional argument about perverting the legislative process — which, however, is often perverted — or some so-called “equitable” doctrine, or some (long forgotten?) doctrine of criminal law, which bars this kind of societal distortion. Or perhaps there is some theory which sets aside immunity if the provision granting it is the product of what in effect is a criminal enterprise. I myself am not sure of what the legal grounds would be, but I do feel that the immunity here is impermissible, and that a legal methodology must be found to render it impermissible, if we are to have a country of laws.

The issue of acting on advice of counsel raises additional questions. It is widely thought that there are perhaps six to ten lawyers who are guilty of crimes because they facilitated, they enabled, the criminal conduct perpetrated by torturers. The names Yoo, Addington, Haynes, Gonzalez, Flanigan, Bradbury, Bybee are among those that leap to mind. These people cannot claim advice of counsel; they were the counsel who were doing the advising and were drafting get out of jail free cards for others. They also knew that what they were advising was illegal, which was one of the main reasons they kept everything a close hold and insured secrecy so that Executive lawyers and officials who would object to their advice as immoral and unlawful would not learn what they were doing.

Guys like Cheney and Bush shouldn’t be able to plead good faith reliance on the advice of counsel either, because they told the counsel what advice to give. Could Al Capone or Lucky Luciano receive immunity for acting in accordance with the advice of counsel when they told counsel what to advise? Not to mention that, rather than acting in good faith reliance on the advice of counsel, Cheney and Bush knew that they were ordering violations of law. The fact that they were doing so, and were well aware they were doing so, was one of the reasons why they, like a significant number of CIA officials who knew the same, demanded that lawyers produce legal cover for them in the form of OLC memos authored by the likes of Yoo and Bradbury.

Then there is the situation of the lower level CIA and military people — persons in the chain of command and/or who committed the torture and the renditions for torture. These people did not read the Yooian type memos — actually a lot of involved higher level people didn’t either — so they cannot claim direct reliance on advice of counsel. But, high level or low, no doubt they were told that torture was approved by lawyers. Nonetheless, these people too cannot claim good faith reliance on the advice of counsel. For they had to know that torture was forbidden no matter what some lawyers said. You could not grow up in America and not know this. (Would someone be allowed to successfully claim to have thought murder was lawful because some lawyer told him so?) People who grew up in America cannot realistically claim that they thought it was lawful to beat people mercilessly, to smash their heads against walls, to kill about one hundred of them apparently, to hang them from ceiling hooks, to make them freeze, to deny them sleep for weeks on end, and so forth. I don’t care what they were told lawyers supposedly had said. They knew what they were doing was wrong. FBI and NCIS guys on the scene knew it regardless of what lawyers like Yoo said, and it was knowledge that what they were doing was wrong that caused some lower level CIA guys too to want a get out of jail free card.

Beyond all this, the claim of good faith reliance on counsel, like the cognate claim of being tasked or ordered to torture, kidnap or rend, and like the immunity provisions themselves, simply are an effort to escape the Nuremberg principles by saying that others said what the culprits were doing was okay. Nuremberg established the principle that there are things that simply can’t be done, a principle later furthered in other treaties, conventions and cases. Nuremberg also established that one cannot rely on the defense that one is merely doing what others said to do. But claiming that their actions were immune because others okayed them is precisely what Cheney, Bush, their whole crowd, and even McCain have been attempting to do. They have been and are seeking to do forbidden acts and then to escape punishment by retroactive immunity, including immunity based on the so-called advice of counsel. They knew what they were doing was illegal, as evidenced by the extreme secrecy they practiced lest it be learned they were practicing, and lest they be accused of practicing, the crimes they were in fact practicing. Morality, decency, and Nuremberg alike forbid this.

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

There is another question, one analogous to immunity, which has also arisen. What if Bush, it is asked, before leaving office, were to pardon himself and all others involved in the crimes at issue? The theory widely accepted is that the pardon power is absolute, so the President can pardon himself and anyone else for all crimes. Some people feel the President cannot grant himself a pardon, precisely because he grants pardons - - the theory here being, I presume (but don’t actually know), that you can only grant something to someone else, not yourself. (This is purely semantic and not very persuasive, I would think.)

The idea that a President has an absolute, unfettered ability to grant pardons does not strike me as persuasive. Could a President order the mass murder of 5000 people and then allow the perpetrators and he himself to escape all punishment by pardoning them and himself? The idea is preposterous and would mark the end of a government of laws. Were such a pardon permissible, the law is at an end and we might as well all move to Canada — or, as I believe Lincoln said, to Russia, where they take their tyranny straight, without the base alloy of hypocrisy.

So there must be some limits to the pardoning power. No doubt they are inherent in the history of the original creation of the power (perhaps in England?), a history I know nothing of and have never seen reference to. We need research on the subject. Perhaps the research will show that there cannot be a pardon for the President’s own criminal acts or for other persons who helped him carry out his criminal acts. Perhaps it will show other limits. But it is not really possible that the pardoning power lets a President commit whatever crimes he chooses, no matter how heinous and obviously unlawful, and then pardon himself as well as all others who helped him carry out atrocious illegal acts like killing hundreds or thousands of people. A claim of such unfettered power defies common sense*

***********
*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@VelvelOnNationalAffairs.com.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about¬_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

Add comment September 7th, 2008