Psyche, Science, and Society

Rep. Harman did not object to CIA torture, agency warned interrogations illegal

The Washington Post today continues its coverage of the CIA torture tapes destruction. They report that destruction of the evidence was planned from 2003, when Congresswoman Jane Harmon objected. Of course, a close reading of her letter shows that Harman, didn’t object to the torture depicted in the tape, but only to the possibility of the tapes’ destruction, saying that destruction would “reflect badly” on the CIA, as it might destroy confirmation of interrogation records.

“Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future.”

Lacking from this top Democrat on the House Intelligence Committee was any complaint that CIA torture itself reflected badly on the CIA. By releasing this letter, Harman confirms that she acquiesced, at a minimum, to US torture. Any complaints about it now by her are not credible unless accompanied by an acknowledgment of past error.

Also at the end of the Post article is this tidbit:

“Helgerson [the CIA's Inspector General] concluded in his May 2004 report that the interrogations might violate international law, and he recommended changes in the treatment and handling of detainees.”

Thus, long before the tapes were destroyed, CIA officials had ample warning that they might well constitute evidence of a crime. Now I’m no attorney, but it certainly would seem that, with this warning, the destruction of the tapes constituted obstruction of justice.No need to parse admittedly ambiguous court orders ordering the preservation of evidence for terrorism trials. As Representative Conyers pointed out yesterday, we need an investigation of the real crime here — torture — and not only the secondary one of destruction of the evidence.

UPDATE:A correspondent has argued that I am unfair to Harmon here and that she was the only member of Congress briefed on the CIA’s “Enhanced technmiques” to object. I believe he is referring to this paragraph in her letter to the CIA:

“It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions. I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?”

This certainly expressed a cautionary note about the CIA’s techniques, which I should have included in my post.

This correspondent also pointed out that Harmon may not have been in a position to object to specific techniques on the CIA’s tapes if she was not given details as to their nature. This is true, though the Washington Post did report in their December 9 article on the CIA’s Congressional briefing, that the Congressional leaders briefed were informed about waterboarding:

“Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said….

Yet long before ‘waterboarding’ entered the public discourse, the CIA gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.”

So I should not have tied my concerns with Harman so closely to the destruction of the tapes. I feel she should, as a ranking Congressional intelligence leader, have gone further in attempting to reign in the CIA’s program. Others may feel that she did all she could, given the secrecy she worked under. Marty Lederman at Balkinization is another who feels that Harman’s stand, while the best out of Congress, was inadequate:

“[T]o her credit, in that February 2003 letter Harman asked whether the CIA practices that had just been described to her were ‘consistent with the principles and policies of the United States.’

But even more noteworthy is what is not in the letter:

Harman does not assert that the CIA techniques were torture or cruel treatment.

She does not insist that they were illegal, and breaches of at least two treaties — and does not insist that they be terminated immediately.

She does not ask how it’s possible that waterboarding is not intended to result in severe physical suffering. She does not ask how the CIA can avoid the conclusion that “stress positions” and severe sleep and sensory deprivation are “cruel treatment.”

She does not insist on seeing all the OLC opinions that reached the absurd conclusions that the techniques were legal.

She does not threaten to inform any of her colleagues in Congress about the shocking illegal conduct of which she has learned.

She does not begin a public debate about whether such conduct is lawful and, if not, whether the U.S. should amend the law and therefore breach its treaty obligations.

She does not question the classification of the techniques.

She was apparently informed that the CIA tapes were not ‘official records’ that have to be preserved under the Official Records Act. She does not question that conclusion, even though the statute (44 U.S.C. 3301) broadly covers ‘all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.’ “

Lederman points out that, if Harman had taken these steps, she would have lost her access to classified briefings and her leadership role on the House Intelligence Committee. That is true. But is is also true that she did little to actually impede the Bush torture regime as it unfolded.

Add comment January 4th, 2008

1,000 American lawyers oppose criminal activity by Bush adminstration

First we had the scene of thousands of lawyers in Pakistan fighting that country’s dictator. Now American lawyers are joining in. Over 1,000 have signed a statement calling for Congressional investiagation into abuses, and potential criminality, by the Bush administration:

We, the undersigned lawyers in the United States, have been inspired by the many lawyers in Pakistan who have risked their own liberty and careers in an effort to preserve their nation’s freedoms.

Their courage has deepened our own resolve to defend the rule of law in our nation. As lawyers, we have both a moral and professional responsibility to preserve and defend the Constitution of the United States.

To that end, we are committed to creating a movement of lawyers in this nation dedicated to monitoring and, when appropriate, challenging the actions of our government when those actions threaten our nation’s freedoms.

As our initial act, we are issuing the following statement to the U.S. House and Senate Judiciary Committees, urging hearings into the unconstitutional and possibly criminal actions of the Bush Administration.

Message to House Judiciary Committee Chairman John Conyers and Senate Judiciary Committee Chairman Patrick Leahy from

American Lawyers Defending the Constitution

We are lawyers in the United States of America. As such, we have all taken an oath obligating us to defend the Constitution and the rule of law from those who would violate and subvert them, and to hold wrongdoers accountable.

We believe the Bush administration has committed numerous offenses against the Constitution and may have violated federal laws. Evidence exists that it has illegally spied on Americans, tortured and abused men and women in its direct custody, sent others to be tortured by countries like Syria and Egypt, and kept people in prison indefinitely with no chance to challenge the bases of their detention. Moreover, the administration has blatantly defied congressional subpoenas, obstructing constitutional oversight of the executive branch.

Thus, we call on House Judiciary Chairman John Conyers and Senate Judiciary Chairman Patrick Leahy to launch hearings into the possibility that crimes have been committed by this administration in violation of the Constitution, federal statutes, and international treaties. We call for the investigations to go where they must, including into the offices of the President and the Vice President. Should these hearings demonstrate that laws have in fact been broken by this administration, we support all such legal and congressional actions necessary to ensure the survival of our Constitution and the nation we love.

 

Signed,

Sign here.

Add comment December 27th, 2007

Physicians for Human Rights call for investigations of health provider involvement in detainee abuse; Calls for APA to pass moratorium

A recent email from Physicians for Human Rights calls upon Congress, the Justice Department, and major professional organizations to investigate the participation of physicians and psychologists in abusive interrogation. PHR also call upon the American Psychological Association to pass a moratorium on psychologist involvement in national security interrogations. Here is the email:

Dear XXX,

You have probably seen recent news reports about the CIA’s destruction of video recordings of interrogations allegedly showing the use of aterboarding and other “enhanced” interrogation techniques. Last week, HR released  a statement, calling on the Attorney General and Congress to immediately launch independent investigations into both the alleged destruction of evidence of torture and  the “enhanced” interrogation program itself. As PHR noted in our report Leave No Marks, waterboarding and other techniques can constitute war crimes.

Recent statements on ABC News and the Today Show by former CIA operative John Kiriakou allege that doctors were present during the interrogation of Abu Zubaydah, which involved the use of sleep deprivation and waterboarding. PHR is calling for the Department of Justice, Congress and major health professional associations to conduct legal and ethical investigations. Those investigations must determine how physicians and psychologists participated in harsh interrogations as monitors and interrogators.

We continue to urge the American Psychological Association (APA) to place a moratorium on the participation of its members in all national security interrogations. Though PHR applauded the APA’s passage of a resolution this August stating that the tactics used by the CIA are unethical, the APA can take more steps to protect detainees from harm and US personnel from engaging in illegal abuse. PHR is asking the APA to follow the examples of the American Medical Association and the American Psychiatric Association in refusing to allow its members to engage in abusive interrogations.

Finally, the House yesterday passed a bill which would make the Army Field Manual the unified standard for detainee treatment, prohibiting the CIA’s “enhanced” interrogation program. Now it must go before the full Senate.

I’ll be in touch again soon.

Sincerely,

Frank Donaghue
Chief Executive Officer

2 comments December 14th, 2007

Are Congressional leaders complicit in torture?

The Washington Post today reports that senior Congressional leaders from both parties, including House Speaker Pelosi and Senate Intelligence Chair Jay Rockefeller, were briefed on CIA torture techniques in 2002. Only Jane Harmon, later denied the Chair of the house Intelligence Committee by Pelosi, objected. Of course, since she objected in secret, it had no effect.

Given the clear bias of the article against the Democrats (no discussion is given to Republican reaction to the briefing and it appears that intelligence officials may be the source), one should maintain a bit of skepticism. Nonetheless, it’s time to ask Congressional leaders of both parties “What did you know and when did you know it?” Also essential for them to answer, according to Steven Reisner,  is: “When, if ever, did you realize you were wrong?”

Glenn Greenwald in Salon expresses thee appropriate disgust: Democratic complicity in Bush’s torture regimen [full Post article below]”

This information was almost certainly leaked to the Post by intelligence officials who are highly irritated — understandably so — from watching the manipulative spectacle whereby these Democrats now prance around as outraged victims of policies to which they deliberately acquiesced, when they weren’t fully supporting them….

Jay Rockefeller was one of the key Democrats briefed on the torture methods who never objected. But it’s far worse than that. In September, 2006, Rockefeller was one of 12 Senate Democrats to vote in favor of the Military Commissions Act, one of the principal purposes of which was to explicitly authorize the CIA’s “enhanced interrogation program” to proceed (even though it continues to be illegal under the Geneva Conventions). Thus, not only did Rockefeller remain silent when continuously briefed on illegal torture methods by the CIA, he then voted to legalize those methods by voting in favor of one of the most Draconian laws in modern American history. That law also retroactively immunized government officials from any liability for past lawbreaking.

Rockefeller is not just any Democrat. He is the individual whom the Democratic Senate caucus thereafter elected — and still chooses — to lead them on all matters relating to intelligence. Just consider how compromised he is and they are when it comes to investigating abuses by the intelligence community over the last six years….

This is exactly why I was so ambivalent, at best, about the Democrats’ melodramatic protest that Michael Mukasey’s refusal to condemn waterboarding as torture somehow placed him beyond the realm of the mainstream. Torture didn’t become an American policy despite the best efforts of a righteous Democratic leadership to stop that. Torture became an American policy precisely because a meek and often outright supportive Democratic leadership continuously allowed it.

I’m not making this point in service of some broader aim. I’m not pointing any of this out in order to try to persuade anyone that there are no meaningful differences between the parties or that it’s irrelevant who wins in 2008… But it is simply undeniable that the Democratic leadership has continuously enabled and, more often, supported the defining Bush policies….

And efforts to apologize for what these Congressional Democrats have done by claiming that they “were virtually helpless to respond,” or suggesting that knowingly inconsequential expressions of private protest are somehow noble, are counter-productive. Why excuse or apologize for the profound failure of those who seek leadership positions on the Intelligence Committee — who, after all, are being briefed precisely because they are expected to act when they learn of illegal behavior — when they abdicate their responsibilities? That only encourages such malfeasance to continue.

Powerful Committee members have all sorts of options for stopping such lawbreaking. They chose not to avail those options, either out of fear, indifference and — apparently in many cases — because they supported the lawbreaking. The solution is to work to replace those who have done that with those who won’t. Torture methods aren’t any less reprehensible when endorsed by Democrats.

Beyond the complicit Jay Rockefeller, consider whom Nancy Pelosi installed as his House counterpart on the Intelligence Committee — Silvestre Reyes. As Harper’s Ken Silverstein reports today, Reyes has numerous, overlapping close personal ties with the CIA official at the center of the scandal over the destroyed interrogation videotapes, Jose Rodriguez. Silverstein also references a report that a key contractor with extensive business before the House Intelligence Committee not only contributes extensively to Reyes’ campaign, but now employs both his son and daughter.

Here is the Post article:

Hill Briefed on Waterboarding in 2002

In Meetings, Spy Panels’ Chiefs Did Not Protest, Officials Say

By Joby Warrick and Dan Eggen

Sunday, December 9, 2007; A01

In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.

“The briefer was specifically asked if the methods were tough enough,” said a U.S. official who witnessed the exchange.

Congressional leaders from both parties would later seize on waterboarding as a symbol of the worst excesses of the Bush administration’s counterterrorism effort. The CIA last week admitted that videotape of an interrogation of one of the waterboarded detainees was destroyed in 2005 against the advice of Justice Department and White House officials, provoking allegations that its actions were illegal and the destruction was a coverup.

Yet long before “waterboarding” entered the public discourse, the CIA gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.

With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter. The lawmakers who held oversight roles during the period included Pelosi and Rep. Jane Harman (D-Calif.) and Sens. Bob Graham (D-Fla.) and John D. Rockefeller IV (D-W.Va.), as well as Rep. Porter J. Goss (R-Fla.) and Sen. Pat Roberts (R-Kan).

Individual lawmakers’ recollections of the early briefings varied dramatically, but officials present during the meetings described the reaction as mostly quiet acquiescence, if not outright support. “Among those being briefed, there was a pretty full understanding of what the CIA was doing,” said Goss, who chaired the House intelligence committee from 1997 to 2004 and then served as CIA director from 2004 to 2006. “And the reaction in the room was not just approval, but encouragement.”

Congressional officials say the groups’ ability to challenge the practices was hampered by strict rules of secrecy that prohibited them from being able to take notes or consult legal experts or members of their own staffs. And while various officials have described the briefings as detailed and graphic, it is unclear precisely what members were told about waterboarding and how it is conducted. Several officials familiar with the briefings also recalled that the meetings were marked by an atmosphere of deep concern about the possibility of an imminent terrorist attack.

“In fairness, the environment was different then because we were closer to Sept. 11 and people were still in a panic,” said one U.S. official present during the early briefings. “But there was no objecting, no hand-wringing. The attitude was, ‘We don’t care what you do to those guys as long as you get the information you need to protect the American people.’ ”

Only after information about the practice began to leak in news accounts in 2005 — by which time the CIA had already abandoned waterboarding — did doubts about its legality among individual lawmakers evolve into more widespread dissent. The opposition reached a boiling point this past October, when Democratic lawmakers condemned the practice during Michael B. Mukasey’s confirmation hearings for attorney general.

GOP lawmakers and Bush administration officials have previously said members of Congress were well informed and were supportive of the CIA’s use of harsh interrogation techniques. But the details of who in Congress knew what, and when, about waterboarding — a form of simulated drowning that is the most extreme and widely condemned interrogation technique — have not previously been disclosed.

U.S. law requires the CIA to inform Congress of covert activities and allows the briefings to be limited in certain highly sensitive cases to a “Gang of Eight,” including the four top congressional leaders of both parties as well as the four senior intelligence committee members. In this case, most briefings about detainee programs were limited to the “Gang of Four,” the top Republican and Democrat on the two committees. A few staff members were permitted to attend some of the briefings.

That decision reflected the White House’s decision that the “enhanced interrogation” program would be treated as one of the nation’s top secrets for fear of warning al-Qaeda members about what they might expect, said U.S. officials familiar with the decision. Critics have since said the administration’s motivation was at least partly to hide from view an embarrassing practice that the CIA considered vital but outsiders would almost certainly condemn as abhorrent.

Information about the use of waterboarding nonetheless began to seep out after a furious internal debate among military lawyers and policymakers over its legality and morality. Once it became public, other members of Congress — beyond the four that interacted regularly with the CIA on its most sensitive activities — insisted on being briefed on it, and the circle of those in the know widened.

In September 2006, the CIA for the first time briefed all members of the House and Senate intelligence committees, producing some heated exchanges with CIA officials, including Director Michael V. Hayden. The CIA director said during a television interview two months ago that he had informed congressional overseers of “all aspects of the detention and interrogation program.” He said the “rich dialogue” with Congress led him to propose a new interrogation program that President Bush formally announced over the summer

“I can’t describe that program to you,” Hayden said. “But I would suggest to you that it would be wrong to assume that the program of the past is necessarily the program moving forward into the future.”
Waterboarding Used on at Least 3

Waterboarding as an interrogation technique has its roots in some of history’s worst totalitarian nations, from Nazi Germany and the Spanish Inquisition to North Korea and Iraq. In the United States, the technique was first used five decades ago as a training tool to give U.S. troops a realistic sense of what they could expect if captured by the Soviet Union or the armies of Southeast Asia. The U.S. military has officially regarded the tactic as torture since the Spanish-American War.

In general, the technique involves strapping a prisoner to a board or other flat surface, and then raising his feet above the level of his head. A cloth is then placed over the subject’s mouth and nose, and water is poured over his face to make the prisoner believe he is drowning.

U.S. officials knowledgeable about the CIA’s use of the technique say it was used on three individuals — Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11, 2001, terrorist attacks; Zayn Abidin Muhammed Hussein Abu Zubaida, a senior al-Qaeda member and Osama bin Laden associate captured in Pakistan in March 2002; and a third detainee who has not been publicly identified.

Abu Zubaida, the first of the “high-value” detainees in CIA custody, was subjected to harsh interrogation methods beginning in spring 2002 after he refused to cooperate with questioners, the officials said. CIA briefers gave the four intelligence committee members limited information about Abu Zubaida’s detention in spring 2002, but offered a more detailed account of its interrogation practices in September of that year, said officials with direct knowledge of the briefings.

The CIA provided another briefing the following month, and then about 28 additional briefings over five years, said three U.S. officials with firsthand knowledge of the meetings. During these sessions, the agency provided information about the techniques it was using as well as the information it collected.

Lawmakers have varied recollections about the topics covered in the briefings.

Graham said he has no memory of ever being told about waterboarding or other harsh tactics. Graham left the Senate intelligence committee in January 2003, and was replaced by Rockefeller. “Personally, I was unaware of it, so I couldn’t object,” Graham said in an interview. He said he now believes the techniques constituted torture and were illegal.

Pelosi declined to comment directly on her reaction to the classified briefings. But a congressional source familiar with Pelosi’s position on the matter said the California lawmaker did recall discussions about enhanced interrogation. The source said Pelosi recalls that techniques described by the CIA were still in the planning stage — they had been designed and cleared with agency lawyers but not yet put in practice — and acknowledged that Pelosi did not raise objections at the time.

Harman, who replaced Pelosi as the committee’s top Democrat in January 2003, disclosed Friday that she filed a classified letter to the CIA in February of that year as an official protest about the interrogation program. Harman said she had been prevented from publicly discussing the letter or the CIA’s program because of strict rules of secrecy.

“When you serve on intelligence committee you sign a second oath — one of secrecy,” she said. “I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything.”

Roberts declined to comment on his participation in the briefings. Rockefeller also declined to talk about the briefings, but the West Virginia Democrat’s public statements show him leading the push in 2005 for expanded congressional oversight and an investigation of CIA interrogation practices. “I proposed without success, both in committee and on the Senate floor, that the committee undertake an investigation of the CIA’s detention and interrogation activities,” Rockefeller said in a statement Friday.

Sen. John McCain (R-Ariz.), a former Vietnam War prisoner who is seeking the GOP presidential nomination, took an early interest in the program even though he was not a member of the intelligence committee, and spoke out against waterboarding in private conversations with White House officials in late 2005 before denouncing it publicly.

In May 2007, four months after Democrats regained control of Congress and well after the CIA had forsworn further waterboarding, four senators submitted written objections to the CIA’s use of that tactic and other, still unspecified “enhanced” techniques in two classified letters to Hayden last spring, shortly after receiving a classified hearing on the topic. One letter was sent on May 1 by Sen. Russell Feingold (D-Wis.). A similar letter was sent May 10 by a bipartisan group of three senators: Dianne Feinstein (D-Calif.), Chuck Hagel (R-Neb.) and Ron Wyden (D-Ore.).

In a rare public statement last month that broached the subject of his classified objections, Feingold complained about administration claims of congressional support, saying that it was “not the case” that lawmakers briefed on the CIA’s program “have approved it or consented to it.”

1 comment December 9th, 2007

Masculine insecurity runs our government

Listen to VP Richard Cheney and Rep. Rahm Emanuel:

Most striking were his virtually taunting remarks of two men he described as friends from his own days in the House: Democratic Reps. John Dingell (Mich.) and John P. Murtha (Pa.).

In a 40-minute interview with Politico, he scoffed at the idea of two men who spent years accruing power showing so much deference to House Speaker Nancy Pelosi (D-Calif.) in the big spending and energy debates of the year.

Murtha “and the other senior leaders … march to the tune of Nancy Pelosi to an extent I had not seen, frankly, with any previous speaker,” Cheney said. “I’m trying to think how to say all of this in a gentlemanly fashion, but [in] the Congress I served in, that wouldn’t have happened.”

But his implication was clear: When asked if these men had lost their spines, he responded, “They are not carrying the big sticks I would have expected.”

Rep. Rahm Emanuel (D-Ill.), who as Democratic Caucus Chair is the party’s fourth-ranking House leader, replied: “Some of us were surprised that the president didn’t have a bigger stick when he could have stood up to Dick Cheney.”

Perhaps we need more secure people down there.

Add comment December 6th, 2007

Mesage from Dana Siegelman, daughter of jailed former Alabama Governor Don Siegelman

Followers of Scott Horton’s No Comment blog at Harpers are well aware of the travesty of justice involved in the politically-motivated prosecution and conviction (along with seven-year sentence) of former Alabama Governor Don Siegelman by the Gonzales Injustice Department, apparently orchestrated by Karl Rove and aided by the state’s largest newspaper. This prosecution was apparently designed to help the Republican Party maintain control of the state. Those unfamiliar with this travesty can follow it in the 41 blog posts Horton has written on this case.

Today I received the following email from Siegleman’s daughter Dana, which she asked me to post here:

Dear Friends,

For those of you who have been concerned about my dad, I am writing to update you on his condition and to ask for your help again.

After visiting my dad in prison, I have observed this: They do not feed him nearly enough. He has no privacy. He works as a janitor everyday from 7-4. He is allowed few personal belongings, and he lives with real criminals (duh). However, despite the negative conditions he is under, his spirit remains positive, and he retains his hope in coming justice.

My goal in writing this letter is to incite your frustration toward our current political state. Politics has adopted the Mafia’s modus operandi. It thrives on power, money, and loyalty (i.e. being loyal to one’s own, versus the client), and aborting those who refuse to comply. Contrarily, we have a judiciary committee in the House of Representatives that cares and wants partisan prosecution to end. The conspirators, (for this is what they truly are), have been doing everything they can to crush the investigation in Congress before it reveals the truth. Our role is to petition these representatives to persevere and fight for justice.

“Human progress is neither automatic nor inevitable… Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.” Martin Luther King, Jr.

Having my dad in prison has sharply awakened me to the many brutalities alive in this world. For years I tried to hide from politics and salvage my naiveness. This was a futile attempt. Hiding from and denying the injustices served to our people and the world is anything but empowering. We have the ability to face these problems and do something productive to stop them. Please join me in encouraging this committee to fight for the truth, to seek justice with all its power, and to rekindle the hope that we ought to have in our government.

With all my heart I thank you for your incredible help, prayers, and love.

Sincerely,

Dana Siegelman
“Injustice anywhere is a threat to justice everywhere. ” MLK Jr.

SPECIFICS ON WRITING

Your letter may be as short or long as you like. My advice is to shoot for one or two strong paragraphs. Do not worry about making ach letter personal. Just send the same letter to each
representative. Keep in mind, they want to know why the issue is important to you. A few examples may be: I knew Don Siegelman as an honorable man, I believe our justice system has been corrupted, someone needs to hold this administration accountable, or I’m friends with the Siegelmans so I feel inclined to write. Speak from the heart. We are working for the betterment of all, not the punishment of a few, so keep your letters positive! If you don’t want to send a letter to each representative, then I suggest at least mailing to the first four listed. You also have the option of sending them emails on their personal websites. Thank you again for everything you have done and are doing to help!

Congressman Artur Davis (D)
208 Cannon H.O.B.
Washington, D.C. 20515
(202) 225-2665 (phone)
(202) 226-9567 (fax)

Congresswoman Linda Sanchez (D)
1222 Longworth Building
Washington, DC 20515

Congresswoman Zoe Lofgren (D)
102 Cannon HOB
Washington, D.C. 20515
Telephone (202) 225-3072
Fax (202) 225-3336

Congressman Bobby Scott (D)
1201 Longworth HOB
Washington, DC 20515
(202) 225-8351 Phone
(202) 225-8354 Fax

Congresswoman Maxine Waters (D)
2344 Rayburn House Office Building
Washington, DC 20515
Phone: (202) 225-2201
Fax: (202) 225-7854

Congresswoman Sheila Jackson Lee (D)
2435 Rayburn Building
Washington, DC 20515
(202) 225-3816
(202) 225-3317 Fax

Congresswoman Tammy Baldwin (D)
2446 Rayburn Building
Washington DC 20515
(202) 225-2906
(202) 225-6942 Fax

Congressman Dan Lungren (R)
2448 Rayburn House Office Building
Washington, DC 20515

Congressman Chris Cannon (R)
2436 Rayburn House Office Building
Washington, DC 20515
Phone: (202) 225-7751
Fax: (202) 225-5629
Email: cannon.ut03@mail.house.gov

Congressman Tom Feeney (R)
323 Cannon House Office Building
Washington, DC 20515
(202) 225-2706 (202) 226-6299 fax

Congressman Jim Sensenbrenner (R)
2449 Rayburn House Office Building
Washington, D.C. 20515-4905
Telephone: (202) 225-5101

Congressman Howard Coble (R)
2468 Rayburn House Office Building
Washington, DC 20515-3306
Phone: (202) 225-3065

Congressman Steve Chabot (R)
129 Cannon House Office Building
Washington, D.C. 20515
(202) 225-2216
(202) 225-3012 (fax)

9 comments November 6th, 2007

Olbermann: Daniel Levin and waterboarding of America

In his latest Special Comment, Keith Olbermann uses the case of Bush administration official Daniel Levin — who was fired for saying, based on his own experience, that waterboarding was torture — as a springboard for taking on Bush’s torture regime. Especially notable is that Olbermann postulates the irrelevance of all the discussion, by the American Psychological Association among others, of the “efficacy” of torture as an interrogation technique. As Olbermann sees it, the torture was used precisely because it would generate the sort of fantastical “terrorist plots” that were needed to coax the American public into acceptance of Bush’s authoritarian regime. At least Olbermann’s explanation makes sense as an explanation of the apparently pig-headed commitment to torture of this Administration.

Olbermann doesn’t spare those Democratic Senators who are about to put a torture-denier as Attorney General, responsible for the Department of Injustice:

Part I:

Part II:

1 comment November 6th, 2007

Letter to Senate Intelligence Committee: Psychologists out of Abusive Interrogations

Today I sent the following letter to the Senate Select Committee on Intelligence on behalf of a broad coalition of psychologists and other mental health professionals — including Coalition for an Ethical Psychology; Psychologists for Social Responsibility; The Center for Victims of Torture, Minneapolis, MN; Psychologists for an Ethical APA; Withhold APA Dues; Monterey Bay (CA) Psychological Association — concerned about the roles of psychologists in the CIA’s “enhanced interrogation” program and other abusive interrogations. The SSCI is in the process of conducting classified hearings on these issues. On September 25, the Committee had a closed hearing to hear testimony from various sources, including the American Psychological Association. Many of these, but not the APA’s, were very moving. I especially recommend the testimony of Allen Keller, MD, Director of the Bellevue/NYU Program for Survivors of Torture and a Advisory Council member of Physicians for Human Rights. We felt it was critical for the SSCI to hear from psychologists other than the APA.

Here’s the Letter:

November 1, 2007

The Honorable Senator Jay Rockefeller
531 Hart Senate Office Building
Washington, DC 20510

The Honorable Senator Christopher Bond
274 Russell Senate Office Building.
Washington, DC 20510

Dear Senators Rockefeller and Bond:

We are psychologists and other mental health professionals representing a broad array of individuals and organizations concerned with the role of psychologists in abusive interrogations that may violate national and international laws. We are concerned by the clear evidence from multiple sources, including public documents, that psychologists have played a central role in illegal United States torture tactics by the CIA. As teachers, clinicians, and/or psychological researchers we are asking Congress to prohibit abusive tactics and to insure that health providers, including psychologists, are not involved in roles that violate their ethical obligations as health professionals.

Evidence of the Central Role of Psychologists in Abusive Interrogations

Over the last several years, press reports and official documents have highlighted the disturbing roles of health professionals, especially psychologists, in the abusive interrogations that took place at Guantanamo, in Iraq and Afghanistan, and at the CIA’s so-called “black sites” under the administration’s “enhanced interrogations” program. We have learned from this record how the military’s Survival, Evasion, Resistance, Escape [SERE] program, designed to inoculate our troops from being coerced into false confessions if captured by a power that did not respect the Geneva Conventions, was reverse engineered to develop interrogation techniques to “break down” detainees held by the United States, so that they supposedly could no longer resist cooperating with interrogators.

We have learned that the “psychological techniques” of prolonged isolation, sensory deprivation and sensory overload, sleep deprivation, and cultural and sexual humiliation were at the core of this program, with techniques such as simulated drowning or waterboarding, threats with dogs, and threats of being buried alive or even threats to detainees’ family members being used in certain instances. These enhanced techniques, we have learned, are based on a fifty-year old paradigm of creating “debility, dread, and dependency” in detainees1. Additionally, according to evidence in the recent report Leave No Marks by Physicians for Human Rights and Human Rights First, these techniques cause severe and prolonged mental and physical harm to detainees and subject those who use them to serious risk of criminality2.

We have learned that the former SERE psychologists James Mitchell and Bruce Jessen of Mitchell Jessen and Associates (Offices: Spokane, Washington; Alexandria, Virginia) used these SERE-based techniques during interrogations at CIA detention centers in Thailand. We have learned from the Pentagon’s Office of the Inspector General [OIG] that active-duty SERE psychologists trained psychologists in the Guantanamo Behavioral Science Consultation Teams [BSCTs] and others in the use of these so-called “counter-resistance” techniques. We have learned from the OIG that SERE psychologists went to both Iraq and Afghanistan to train interrogators in the use of these counter-resistance techniques

We have further learned that these counter-resistance techniques were used extensively in Guantanamo in 2002-2004, with the participation of BSCT psychologists. We have also learned that BSCT psychologists at this time consulted not only on interrogations, narrowly defined, but on the often abusive conditions of detention under which detainees are kept. The public record is less clear on what has occurred since then, though, as recently as this past April, Amnesty International reported on the extensive use of prolonged isolation with many prisoners in Guantanamo.

This summer the President issued an Executive Order reauthorizing certain of the CIA’s “enhanced interrogation” techniques, which, by definition, are “enhanced” because they go beyond those techniques authorized by the Army Field Manual. [We know that certain techniques sanctioned in the Army Field Manual itself, such as isolation for prolonged periods and manipulation of fears of detainee, would be considered unethical according to international codes of ethics, at least for health professionals.] Thus, these techniques almost certainly fall into the legally proscribed categories of torture and/or cruel, inhuman, or degrading treatment.

We fear that psychologists are still playing roles in the implementation of these abusive and illegal techniques. We know that during a July 22, 2007 appearance on Meet the Press, National Intelligence Director Mike McConnell stated: “When I was in a situation where I had to sign off, as a member of the process, my name to this executive order, I sat down with those who had been trained to do it, the doctors who monitor it, understanding that no one is subjected to torture. They’re, they’re [sic] treated in a way that they have adequate diet, not exposed to heat or cold. They’re not abused in any way. But I did understand, when exposed to the techniques, how they work and why they work, all under medical supervision.” Now we do not know, given the paucity of publicly-available evidence about the CIA’s programs, whether psychologists have ever participated in this “medical supervision,” but we are concerned that psychologists may have been put in that position as the Surgeon General of the Army described the role of psychologists BSCTs as “safety officers.”3 As it is a further breach of medical ethics for a health professional to certify a detainee’s fitness for abusive interrogation, we feel that is essential for our profession, for this committee, and for the American people to know whether this has been the case.

In this same interview Director McConnell also stated: “I would not want a U.S. citizen to go through the process. But it is not torture, and there would be no permanent damage to that citizen.” As psychologists and as citizens, we know that any “process” that Director McConnell would not want a U.S. citizen to go through is a process that no one anywhere should be subjected to and certainly is a process that no American citizen should be administering to others. And we know from extensive clinical work and research studies on the consequences of abusive interrogations that these effects are often long-lasting, in contradiction of Director McConnell’s claim2. Thus, despite all suggestions to the contrary, these enhanced techniques appear in many cases to surpass the threshold for a legal definition as “torture” and almost certainly to pass that for “cruel, inhuman, or degrading treatment.” As a result, those operatives, psychologists included, who participate in the use of these techniques are placed at serious risk of committing prosecutable criminal violations. The reputation of the United States on the international stage itself is also at risk. As a violator of international human rights laws, we limit our capacity and legitimacy to intervene when other nations practice torture.

As psychologists we are thoroughly aware that research, as well as the experience of professional interrogators, casts doubt upon the efficacy of these “harsh” techniques. Indeed, FBI investigators have repeatedly challenged the use of abusive SERE-based techniques at both military and CIA facilities. Additionally, on July 31, 2006, 20 former Army interrogators wrote the House Armed Services Committee opposing the use of these techniques as “counter-productive to the intelligence gathering mission.”

Concerns About Policies of the American Psychological Association on Interrogation Involvement

In addition to our dismay as citizens at these types of actions by our government, we are concerned as psychologists that psychologist involvement in abusive interrogations is in violation of established national and international norms of medical and psychological ethics4. In its Declaration of Tokyo Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, the World Medical Association stated: “The physician shall not use nor allow to be used, as far as he or she can, medical knowledge or skills, or health information specific to individuals, to facilitate or otherwise aid any interrogation, legal or illegal.” Similarly, the American Medical Association, the American Nurses Association, and the American Psychiatric Association have taken clear unequivocal positions affirming the primacy of the health-promoting missions of their respective professions. These organizations have all emphasized the central tenet of the ethics of all health professions: the injunction to do no harm.

It is with distress, and indeed shame, that we psychologists note that the American Psychological Association [APA] alone among the national health professional associations has failed to take an unequivocal stand prohibiting participation of its members in potentially abusive interrogations. As was evident in its testimony to the Senate Select Committee on Intelligence, the APA explicitly allows members to participate in the infliction of harm, as long as that harm does not exceed a certain threshold – causing “significant pain or distress” or of being “lasting”. This policy, sadly, echoes the word-parsing of the Bush Administration’s “torture memos” and other official policies and documents justifying the administration’s harsh interrogation strategies. Word-parsing may have a political rationale, but it is antithetical to professional ethics in that it indicates an intent to deceive or obscure. When this is the intent with regard to an issue as significant as torture, it brings into question the profession’s, and the nation’s, genuine commitment to human rights.

Like psychologists in any institutional setting, military or CIA psychologists, asked to participate in interrogations, need clear ethical guidance. These psychologists, in the heat of high-profile operations, cannot be expected to successfully parse words as to whether the pain or distress is sufficient to meet the APA’s standard for being “significant.” Nor can these psychologists be expected to predict whether a particular technique, used perhaps in combination with other techniques, will cause “lasting harm.” Thus, the APA policy leaves military and intelligence psychologists at risk of committing unethical and perhaps illegal actions and fails to protect members who are military and intelligence psychologists.

Ambiguities in the roles of psychologists also threaten the abilities of military and intelligence-agency psychologists to perform their primary health-promoting activities. To the extent that uncertainty exists around the roles of psychologists and whether or not psychologists’ primary responsibility is to promote health, the trust upon which all psychological and medical treatment depends will be severely damaged. As a result, potential patients may become reluctant to seek needed psychological care. At a time when many thousands of our soldiers are suffering severe psychological trauma, often requiring intensive psychological treatment, this loss of trust can hardly be risked.

We are also deeply concerned that the 2007 Resolution by APA Council makes it ethical practice for psychologists to participate in the violation of international human rights standards. In particular, the resolution allows psychologists to practice and support interrogations in sites that operate outside the protections offered by the Geneva Conventions and other international human rights instruments such as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [CAT]. As the illegal, indefinite detention of people at these sites itself constitutes a violation of international law and human rights standards, psychologists’ operational activities at these sites only legitimates these human rights violations.

Recommendations

We therefore ask Congress and this committee to take the following steps to clarify the status of psychologists in the military and intelligence agencies:

1. Conduct a thorough investigation of the role of psychologists, and of psychological knowledge and expertise, in the abusive interrogations carried out by this Administration. This investigation should clarify for the public the roles of SERE psychologists and SERE-based techniques in these interrogations. It should clarify the processes whereby SERE and other psychological knowledge and techniques were implemented at the CIA’s “black sites” and in military detention facilities at Guantanamo, and in Iraq and Afghanistan. This investigation should clarify the degree to which psychologists helped turn these abusive techniques into standard operating procedures at these facilities. It should also clarify the extent to which psychologists and psychological knowledge and expertise are currently being utilized in support of the CIA’s “enhanced interrogations” program. Further, clarification is needed as to whether psychologists have ever participated in the “medical supervision” of interrogations at Guantanamo or of the “enhanced interrogations” that Director McConnell described.

2. Clarify that the infliction of harm of any degree is never an appropriate role for psychologists, their trainees and supervisees, or any other health professionals in national security contexts. Our military and intelligence colleagues need the warrant of Congressional mandate to identify and refrain from unethical participation in abusive or coercive interrogation practices.

3. Ban the use of enhanced interrogation techniques going beyond those authorized by the Army Field Manual, which itself needs revision, at any U.S. detention facility, whether run by the military, CIA, or any other government or private agency.

4. We would also like to add our voice to those urging Congress to act immediately to restore habeas corpus and other basic human rights, as defined in the Geneva Conventions, the UN CAT and other relevant international instruments, to all those sought or detained by the U.S. as “enemy combatants.” The CIA’s secret detention and rendition practices and CIA-run prisons are of particular concern. We urge Congress to take action speeding the closure of Guantánamo Bay, CIA-run prisons, and other secretive detention sites; Prisoners held at these sites should be transferred to sites in the U.S. that transparently observe due process & other international human rights standards & laws. Concomitantly, Congress should ban the practice of extraordinary rendition of detainees to countries documented by the State Department to use torture or other abusive interrogation techniques. Respect for human rights is a fundamental aspect of what makes us a civilized society.

We thank you for this opportunity to assist your vital efforts to rectify this sad chapter in our nation’s history.

Institutional Signers:

Coalition for an Ethical Psychology
Psychologists for Social Responsibility
The Center for Victims of Torture, Minneapolis, MN
Psychologists for an Ethical APA
Withhold APA Dues (www.withholdapadues.com)
Monterey Bay (CA) Psychological Association

Individual Signers:
[Affiliations for identification purposes only].

Stephen Soldz, Ph.D. Cert. Psya., Director, Center for Research, Evaluation, and Program Development, Boston Graduate School of Psychoanalysis & Coalition for an Ethical Psychology

Steven Reisner, Ph.D., Senior Faculty and Advisor, International Trauma Studies Program, an affiliate of the Mailman School of Public Health, Columbia University, New York & Coalition for an Ethical Psychology

Brad Olson, Northwestern University & Coalition for an Ethical Psychology

Jean Maria Arrigo, Ph.D., Former Member of the APA Presidential Task Force on Psychological Ethics and National Security (PENS Task Force)

Mike Wessells, Columbia University & Former Member of the APA Presidential Task Force on Psychological Ethics and National Security (PENS Task Force)

Anthony J. Marsella, Ph.D., President, Psychologists for Social Responsibility, Washington, DC; Former vice president for academic affairs, University of Hawaii & Former Director of the World Health Organization Psychiatric Research Center, Honolulu

Jancis Long Ph.D., President-elect, Psychologists for Social Responsibility & University of California, Berkeley Extension

Morton Deutsch, E.L. Thorndike Professor Emeritus of Psychology &
Director Emeritus of the International Center for Cooperation and Conflict Resolution (ICCCR)

Phil Zimbardo, Ph.D., Former President, American Psychological Association, Professor Emeritus, Stanford University, Director, CIPERT, Center for Interdisciplinary Policy, Education and Research on Terrorism

Mary Pipher, author of New York Times bestselling Reviving Ophelia

Jerome L. Singer, Ph.D., Professor-Emeritus of Psychology, Yale University

Tom Gutheil, M.D., Professor, Department of Psychiatry, BIDMC, Harvard Medical School

Ghislaine Boulanger, Ph.D., Steering Committee, WithholdAPAdues

Trudy Bond, Ph.D., Independent Practice

Nancy Hollander, Ph.D., Professor Emerita of History, California State University,

Arlene Lu Steinberg, Ph.D., President, Psychoanalysts for Social Responsibility (APA Division 39 Section 9)

Herbert C. Kelman, Richard Clarke Cabot Professor of Social Ethics, Emeritus, Harvard University

Ben Harris, Ph.D., Professor of Psychology, University of New Hampshire & Past President, APA Division 26: Society for the History of Psychology

Kathie Malley-Morrison, Ph. D., Department of Psychology, Boston University

Gary R. Schoener, Executive Director, Walk-In Counseling Center, Minneapolis

Dan Aalbers, Central Michigan University

Elliot G. Mishler, Ph.D., Professor of Social Psychology, Department of Psychiatry, Harvard Medical School

Ruth Fallenbaum, Ph.D., Survivors International, San Francisco & The Wright Institute, Berkeley

Frank Summers, Ph.D., ABPP, Associate Professor of Clinical Psychiatry and the Behavioral Sciences, Northwestern University Medical School

Jeffrey S. Kaye, Ph.D., Clinician, Survivors International, San Francisco, CA

Meg Sandow, Psy.D., Licensed Psychologist, Santa Cruz, CA

Mark Kane, President, The West Michigan Family Therapy Institute

James C. Coyne, Ph.D., Director, Behavioral Oncology Program, Abramson Cancer Center & Professor of Psychology, Department of Psychiatry, University of Pennsylvania School of Medicine

Jo Oppenheimer, The Counseling Center for Women – Israel & Women’s Therapy Center Institute - New York

David Sloan-Rossiter, Curriculum Chair, Massachusetts Institute of Psychoanalysis & Boston Institute for Psychotherapy

Ibrahim Kira, Ph.D., ACCESS Community Health and Research Center &
Center for Cumulative Trauma Studies

Lewis Aron, Ph.D., Director, New York University Postdoctoral Program in Psychotherapy & Psychoanalysis

Hermine Muskat, Ed.D., Licensed Psychologist, Back Bay Films, LLC., Boston

Victoria Steinitz, Associate Professor of Psychology (ret.), University of Massachusetts-Boston

Jennifer W. Kaupp, Ph.D., President, Monterey Bay Psychological Association

Robert L. Weiss, Ph.D., Professor emeritus of Psychology, University of Oregon

Elaine M. Heiby, Ph.D., Professor, Department of Psychology, University of Hawaii at Manoa

Scot D. Evans, Ph.D., Wilfrid Laurier University, Psychologists Acting with Conscience Together

Edward S. Katkin, Professor Emeritus of Psychology and Psychiatry, State University of New York at Stony Brook & Past President, Society for Psychophysiological Research

Donnel B. Stern, Ph.D., William Alanson White Institute and New York University Postdoctoral Program in Psychotherapy and Psychoanalysis

Irwin S. Rosenfarb, Ph.D., Professor, California School of Professional Psychology Alliant International University

Paul Kimmel, Saybrook Graduate School and Research Center & Past President of APA Division 48 and of Psychologists for Social Responsibility

Rosa E. Garcia-Peltoniemi, Ph.D., L.P., Senior Consulting Clinician, The Center for Victims of Torture, Minneapolis, MN

Andrea Northwood, Ph.D., L.P., Director of Client Services, The Center for Victims of Torture
Michael Jackson, Chair, Department of Psychology, Earlham College

Works Cited

1. McCoy AW. A question of torture: CIA interrogation, from the Cold War to the war on terror. 1st ed. New York: Metropolitan Books/Henry Holt and Co., 2006.
2. Physicians for Human Rights, Human Rights First. Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality. Physicians for Human Rights, 2007.
3. Lt. Gen. Kevin C. Kiley, Surgeon General of the Army Final Report: Assessment of Medical Operations for OEF, GTMO, and OIF. April 13, 2005
4. Miles SH. Oath betrayed: Torture, medical complicity, and the war on terror. 1st ed. New York: Random House, 2006.

Contact:

Stephen Soldz
ssoldz@bgsp.edu

Add comment November 1st, 2007

Waterboarding: Its torture unless it isn’t

Attorney General nominee Mukasey takes a stron moral position on waterboarding. today he reaffirmed that, if waterboarding is torture, it would be illegal. It isn’t clear how many Senators are reassured. Chris Dodd isn’t.  [UPDATE: Other Democratic candidates join in.]For an important lesson in word parsing, Bush admin style, read Mukasey’s Letter to the Senate Judiciary Committee, below the fold, which clarifies all.

But first read Dan Froomkin at the Washington Post, who summarizes much of the reaction to this new moral clarity:

The Stench of Torture

By Dan Froomkin

The stench of torture that permeates the White House has spread to Attorney General-designate Michael Mukasey, putting what had been seen as a surefire nomination at risk and reigniting a momentous ethical debate.

By refusing to acknowledge at his confirmation hearing that waterboarding is torture, Mukasey appeared to throw his lot in with those who embrace an authoritarian strain of moral relativism, one that excuses abhorrent and illegal policies as long as the president declares they’re in the national interest.

When longtime Bush loyalist Alberto Gonzales was nominated to succeed John Ashcroft as attorney general, critics expressed what turned out to be eminently justified concern that he would never buck the White House. By all accounts, Mukasey, a federal judge, is much more independent than Gonzales. As I wrote in my Sept. 18 column, Bush evidently realized that the Democratic Congress wouldn’t let him install another complete lickspittle into the nation’s top law-enforcement post.

Nevertheless, Bush and Vice President Cheney desperately need someone in that job who won’t undermine the most radical of their legal positions: Those regarding executive power and the treatment of terrorism suspects. And they seem to have found such a person in Mukasey.

Scott Shane writes in the New York Times: “Six years after the Bush administration embraced harsh physical tactics for interrogating terrorism suspects, and two years after it reportedly dropped the most extreme of those techniques, the taint of torture clings to American counterterrorism efforts.

“The administration has a standard answer to queries about its interrogation practices: 1) We do not torture, and 2) we will not say what we do, for fear of tipping off future prisoners. In effect, officials want Al Qaeda to believe that the United States does torture, while convincing the rest of the world that it does not.

“But that contradictory catechism is not holding up well under the battering that American interrogation policies have received from human rights organizations, European allies and increasingly skeptical members of Congress….

“President Bush has repeatedly defended what the administration calls ‘enhanced’ interrogation methods, saying they have produced invaluable information on Al Qaeda. But the administration’s strategy has exacted an extraordinary political cost.

“The nomination of Michael B. Mukasey as attorney general, once expected to sail through the Senate, has run into trouble as a result of his equivocation about waterboarding, or simulated drowning. Mr. Mukasey has refused to characterize the technique as torture, which would put him at odds with secret Justice Department legal opinions and could put intelligence officers in legal jeopardy.”

Massimo Calabresi writes for Time: “George W. Bush has always wielded moral clarity as a weapon, beating Democrats by declaring his high purpose and principled resolve. But in recent months, as critics have shined new light on domestic spying and harsh interrogation techniques in the morally ambiguous world of counter-terrorism, Bush has had to retreat to gray-area defenses, using tailored definitions and legalisms to dodge questioners. And now, as Democrats raise the pressure on embattled Attorney General nominee Michael Mukasey to state his opinion on whether or not waterboarding constitutes torture, it is the president’s opponents who are using moral clarity against him.”

Calabresi writes that if Mukasey “refuses to declare waterboarding expressly illegal, he looks likely to be rejected by the Judiciary committee. On the other hand, if he does declare it illegal, he may be rendering a legal judgment on everyone who authorized waterboarding or used it in interrogation. ‘They are putting him in an almost untenable position on this,’ says White House spokesman Tony Fratto. The White House expects Mukasey’s response will be sent to the committee Tuesday or Wednesday, and Fratto says, ‘He’ll respond in his usual manner, which is thoughtful and thorough, but there are certain things that he will not be able to comment on.’”

Calabresi also offers a peek behind the scenes, where — surprise! — Vice President Cheney’s office is heavily involved: “Harold Kim, a former Specter staffer who works in the White House Counsel’s office, has been negotiating with Judiciary Committee Democrats, trying to find language they can live with. But attempts to compromise with Congress have met resistance from Cheney’s office, and when it comes to interrogation techniques, the Vice President and his chief of staff, David Addington, have notoriously pushed for Presidential authority to go unchecked by the legislative branch.”

Cheney’s position on waterboarding doesn’t take a lot of guesswork. Here he is in an October 24, 2006, interview with right-wing radio host Scott Hennen:

Hennen: “Would you agree a dunk in water is a no-brainer if it can save lives?”

Cheney: “It’s a no-brainer for me.”

The Washington Post editorial board writes: “It’s a sad day in America when the nominee for attorney general cannot flatly declare that waterboarding is unconstitutional. The interrogation technique simulates drowning and can cause excruciating mental and physical pain; it has been prosecuted in U.S. courts since the late 1800s and was regarded by every U.S. administration before this one as torture. . . .

“The fault for this evasion lies as much, if not more, with President Bush and Congress as it does with Mr. Mukasey. Mr. Bush authorized waterboarding in the past, most notably against al-Qaeda leader Khalid Sheikh Mohammed. If Mr. Mukasey now condemns the interrogation method as unconstitutional, he would probably be in conflict with Justice Department memoranda that implicitly endorse such techniques and that have been used by CIA interrogators and others to cloak their actions in legal legitimacy. The president could also be legally implicated for approving the method.”

The Milwaukee Journal Sentinel editorial board writes: “Waterboarding is torture. If he cannot unambiguously define it as such, he should not be confirmed. . . .

“Mukasey, in declining to answer whether the technique that simulates drowning in its victims is constitutional, told the Senate Judiciary Committee that he is unfamiliar with it. This is implausible. But he stuck to the story even when the method was explained to him.

“‘If it amounts to torture, it is not constitutional,’ he said. But this is very much like the president’s own unsatisfactory answer, which, in a nutshell, is that this country doesn’t torture but that he gets to define what that is. . . .

“The president should have leeway to appoint cabinet members who share his views. But like-mindedness in an appointee on the matter of torture is no virtue. It is difficult to imagine how such a person, taking such an expedient view in the nomination process, could be independent enough to stand up to the president if need be.”

Joan Walsh writes for Salon: ” It’s worth paying attention to what Mukasey said, exactly, during his testimony (thanks to Paul Kiel at TPM for highlighting this):

“‘I don’t think that I can responsibly talk about any technique here because — (pause) — of the very — I’m not going to discuss and I should not — I’m sorry I can’t discuss, and I think it would be irresponsible of me to discuss particular techniques with which I am not familiar when there are people who are using coercive techniques and who are being authorized to use coercive techniques. And for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial, I don’t think it would be responsible of me to do that.’”

“So it seems Mukasey refused to call any particular technique torture, or to say whether it was ‘unconstitutional,’ because he believes someone out there may be using these controversial techniques right now, under orders from above, and he doesn’t want to get them in trouble just to be ‘congenial.’”

Law professor Marty Lederman blogs: “There may well be some ambiguities at the margins about whether and under what circumstances certain interrogation techniques amount to torture, to cruel treatment under Common Article 3, to or conduct that shocks the conscience under the McCain Amendment.”

But, he writes “Waterboarding is a paradigmatic example of torture. It is inconceivable that anyone involved in drafting, negotiating, signing, ratifying or enacting the Torture Act or Common Article 3 would have thought otherwise.”

For the record, here is Mukasey’s full letter to the Judiciary Committee [or in pdf]:

MICHAEL B. MUKASEY
October 30, 2007

The Honorable Patrick J. Leahy United States Senate
Washington, D.C. 20510

The Honorable Joseph R. Biden, Jr. United States Senate
Washington, D.C. 20510
The Honorable Dianne Feinstein United States Senate
Washington, D.C. 20510

The Honorable Charles E. Schumer United States Senate
Washington, D.C. 20510

The Honorable Benjamin L. Cardin United States Senate
Washington, D.C. 20510

The Honorable Edward M. Kennedy United States Senate
Washington, D.C. 20510

The Honorable Herb Kohl United States Senate
Washington, D.C. 20510

The Honorable Russell D. Feingold United States Senate
Washington, D.C. 20510

The Honorable Richard J. Durbin United States Senate
Washington, D.C. 20510

The Honorable Sheldon Whitehouse United States Senate
Washington, D.C. 20510

Dear Chairman Leahy, Senator Kennedy, Senator Biden, Senator Kohl, Senator Feinstein, Senator Feingold, Senator Schumer, Senator Durbin, Senator Cardin and Senator Whitehouse:

Thank you for your letter of October 23, 2007. I well understand the concerns of the Senators who signed this letter that this Country remain true to its ideals, and that includes how we treat even the most brutal terrorists in U.S. custody. I understand also the importance of the United States remaining a nation of laws and setting a high standard of respect for human rights. Indeed, I said at the hearing that torture violates the law and the Constitution, and the President may not authorize it as he is no less bound by constitutional restrictions than any other government official.

I was asked at the hearing and in your letter questions about the hypothetical use of certain coercive interrogation techniques. As described in your letter, these techniques seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans. But hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical. As a judge, I tried to be objective in my decision-making and to put aside even strongly held personal beliefs when assessing a legal question because legal questions must be answered based solely on the actual facts, circumstances, and legal standards presented. A legal opinion based on hypothetical facts and circumstances may be of some limited academic appeal but has scant practical effect or value.

I have said repeatedly, and reiterate here, that no one, including a President, is above the law, and that I would leave office sooner than participate in a violation of law. If confirmed, any legal opinions I offer will reflect that I appreciate the need for the United States to remain a nation of laws and to set the highest standards. I will be mindful also of our shared obligation to ensure that our Nation has the tools it needs, within the law, to protect the American people.

Legal opinions should treat real issues. I have not been briefed on techniques used in any classified interrogation program conducted by any government agency. For me, then, there is a real issue as to whether the techniques presented and discussed at the hearing and in your letter are even part of any program of questioning detainees. Although I have not been cleared into the details of any such program, it is my understanding that some Members of Congress, including those on the intelligence committees, have been so cleared and have been briefed on the specifics of a program run by the Central Intelligence Agency (”CIA”). Those Members know the answer to the question of whether the specific techniques presented to me at the hearing and in your letter are part of the CIA’s program. I do not.

I do know, however, that “waterboarding” cannot be used by the United States military because its use by the military would be a clear violation of the Detainee Treatment Act (”DTA”). That is because “waterboarding” and certain other coercive interrogation techniques are expressly prohibited by the Army Field Manual on Intelligence Interrogation, and Congress specifically legislated in the DTA that no person in the custody or control of the Department of Defense (”DOD”) or held in a DOD facility may be subject to any interrogation techniques not authorized and listed in the Manual.

In the absence of legislation expressly banning certain interrogation techniques in all circumstances, one must consider whether a particular technique complies with relevant legal standards. Below, I provide a summary of the type of analysis that I would undertake, were I presented as Attorney General with the question of whether coercive interrogation techniques, including “waterboarding” as described in your letter, would constitute torture, cruel, inhuman or degrading treatment, or a violation of Common Article 3 of the Geneva Conventions.
The statutory elements of torture are set forth in 18 U.S.C. § 2340. By the terms of the statute, whether a particular technique is torture would turn principally on whether it is specifically intended to cause (a) severe physical pain or suffering, or (b) prolonged mental harm resulting from certain specified threats or acts. If, after being briefed, I deteimine that a particular technique satisfies the elements of section 2340, I would conclude that the technique violated the law.

I note that the Department of Justice published its interpretation of 18 U.S.C. § 2340 in a December 30, 2004 memorandum to then-Deputy Attorney General James B. Comey, which superseded the memorandum of August 1, 2002 that I testified was a “mistake.” I understand that the December 30, 2004 memorandum remains the Department’s prevailing interpretation of section 2340. Although the December 30, 2004 memorandum to Mr. Comey does not discuss any specific techniques, it does state that “[w]hile we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”

Even if a particular technique did not constitute torture under 18 U.S.C. § 2340, I would have to consider also whether it nevertheless would be prohibited as “cruel, inhuman or degrading treatment” as set forth in the DTA and the Military Commissions Act (”MCA”) — enacted after the Department of Justice’s December 30, 2004 memorandum to Mr. Comey — which extended the Convention Against Torture’s prohibition on “cruel, inhuman or degrading treatment” to individuals in United States custody regardless of location or nationality. Congress specified in those statutes, as the Senate had in consenting to the ratification of the Convention Against Torture, that the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution would control our interpretation of the phrase “cruel, inhuman or degrading treatment.”

The Fifth Amendment is likely most relevant to an inquiry under the DTA and MCA into the lawfulness of an interrogation technique used against alien enemy combatants held abroad, and the Supreme Court has established the well-known “shocks the conscience” to determine whether particular government conduct is consistent with the Fifth Amendment’s due process guarantees. See County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998); Rochin v. California, 342 U.S. 165, 174 (1952). A legal opinion on whether any interrogation technique shocks the conscience such that it constitutes cruel, inhuman or degrading treatment requires an understanding of the relevant facts and circumstances of the technique’s past or proposed use. This is the test mandated by the Supreme Court itself in County of Sacramento v. Lewis in which it wrote that “our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.” 523 U.S. 833, 850 (1998) (emphasis added). As the Supreme Court has explained, a court first considers whether the conduct is “arbitrary in the constitutional sense,” a test that asks whether the conduct is proportionate to the governmental interests involved. Id. at 847. In addition, the court must conduct an objective inquiry into whether the conduct at issue is “egregious” or “outrageous” in light of “traditional executive behavior and contemporary practices.” Id. at 847 n.8. This inquiry requires a review of executive practice so as to determine what the United States has traditionally considered to be out of bounds, and it makes clear that there are some acts that would be prohibited regardless of the surrounding circumstances.

I would have to ensure also that any technique complies with our Nation’s obligations under the Geneva Conventions, including those acts, such as murder, mutilation, rape, and cruel or inhuman treatment, that Congress has forbidden as grave breaches of Common Article 3 under the War Crimes Act. With respect to any coercive interrogation technique, the prohibition on “cruel or inhuman treatment” would be of particular relevance. That statute, similar in structure to 18 U.S.C. § 2340, prohibits acts intended (a) to cause serious physical pain or suffering, or (b) serious and non-transitory mental harm resulting from certain specific threats or acts. Also, I would have to consider whether there would be a violation of the additional prohibitions imposed by Executive Order 13440, which includes a prohibition of willful and outrageous personal abuse inflicted for the purpose of humiliating and degrading the detainee.
As I testified, any discussion of coercive interrogation techniques necessarily involves a discussion of and a choice among bad alternatives. I was and remain loath to discuss and opine on any of those alternatives at this stage for the following three principal reasons: First, to repeat, I have not been made aware of the details of any interrogation program to the extent that any such program may be classified, and thus do not know what techniques may be involved in any such program that some may find analogous or comparable to the coercive techniques presented to me at the hearing and in your letter. Second, I would not want any uninformed statement of mine made during a confirmation process to present our own professional interrogators in the field, who must perform their duty under the most stressful conditions, or those charged with reviewing their conduct, with a perceived threat that any conduct of theirs, past or present, that was based on authorizations supported by the Department of Justice could place them in personal legal jeopardy. Third, for the reasons that I believe our intelligence community has explained in detail, I would not want any statement of mine to provide our enemies with a window into the limits or contours of any interrogation program we may have in place and thereby assist them in training to resist the techniques we actually may use.

I emphasize in closing this answer that nothing set forth above, or in my testimony, should be read as an approval of the interrogation techniques presented to me at the hearing or in your letter, or any comparable technique. Some of you told me at the hearing or in private meetings that you hoped and expected that, if confirmed, I would exercise my independent judgment when providing advice to the President, regardless of whether that advice was what the President wanted to hear. I told you that it would be irresponsible for me to do anything less. It would be no less irresponsible for me to seek confirmation by providing an uninformed legal opinion based on hypothetical facts and circumstances.

As I testified, if confirmed I will review any coercive interrogation techniques currently used by the United States Government and the legal analysis authorizing their use to assess whether such techniques comply with the law. If, after such a review, I determine that any technique is unlawful, I will not hesitate to so advise the President and will rescind or correct any legal opinion of the Department of Justice that supports use of the technique. I view this as entirely consistent with my commitment to provide independent judgment on all issues. That is my commitment and pledge to the President, to the Congress, and to the American people. Each and all should expect no less from their Attorney General.

Michael Mukasey

Add comment October 30th, 2007

AG nominee claims not to know torture when he sees it

Yesterday I, and a lot of others, wondered if AG nominee was really against torture. Today we get a clear answer: No. When asked if waterboarding was torture, he replied that he didn’t know. As TPM reports:

 Mukasey has firmly established that he’s against torture — yesterday he even compared it to the Holocaust (see also here).

But what exactly does that mean? Sen. Sheldon Whitehouse (D-RI) asked Mukasey if he thought waterboarding was Constitutional. “If waterboarding is torture… torture is not Constitutional,” he replied.

Whitehouse wasn’t satisfied. “That is a massive hedge…. It either is or it isn’t.” Doesn’t Mukasey have an opinion on whether waterboarding is torture? He went on to describe the technique, which involves using a wet rag to make the detainee feel like he’s drowning. Mukasey replied with the same answer: “If it amounts to torture, then it is not Constitutional.”

I’m very disappointed,” Whitehouse said, adding that Mukasey’s reply had been “purely semantic.”

“Sorry,” replied Mukasey.

If waterboarding isn’t well beyond the pale, then all the rest of the CIA’s “enhanced interrogation techniques” will be judged to be not torture, and, thus legal.

From a legal angle, the talk of “torture” is a softball, allowing these guys to get off easy. The legal threshold for “torture” is fairly high. But many techniques about which controversy exists as to whether they are torture clearly fall within the legally proscribed category of “cruel, inhuman, or degrading treatment”, banned by UN Convention,  or those “outrages upon personal dignity” banned by the Geneva Conventions Common Article Three.

A vote for this guy will be, like a vote for Gonzales, a vote for someone dedicated to using word parsing to  protect Bush’s regime of abuse. Shame on Congress for even considering it. It’s  not surprising Congress’ approval is at 11%.

Add comment October 18th, 2007