Psyche, Science, and Society

The Torture Report: What the Documents Say About America’s Post-9/11 Torture Program

An important forthcoming book The Torture Report: What the Documents Say About America’s Post-9/11 Torture Program described by the author:

The “war on terror,” brought to light by Freedom of Information Act litigation. As the lead author of the ACLU’s report on these documents, Larry Siems is in a unique position to chronicle who did what, to whom and when. This book, written with the pace and intensity of a thriller, serves as a tragic reminder of what happens when commitments to law, common sense, and human dignity are cast aside, when it becomes difficult to discern the difference between two groups intent on perpetrating extreme violence on their fellow human beings.

Divided into three sections, The Torture Report presents a stunning array of eyewitness and first-person reports—by victims, perpetrators, dissenters, and investigators—of the CIA’s White House-orchestrated interrogations in illegal, secret prisons around the world; the Pentagon’s “special projects,” in Guantánamo Bay, Cuba; plots real and imagined, and much more.

January 9th, 2012

Annul the PENS Report

Read and sign our petition to annul the PENS Report.

November 21st, 2011

Dryboarding at GTMO

Almerindo Ojeda has raised new questions regarding the mysterious deaths of three prisoners at Guantanamo in June 2006. He raises the possibility that the deaths occurred under torture using a technique known as “dryboarding”:

Death in Guantanamo: Suicide or Dryboarding?

By Almerindo Ojeda

On June 10, 2006, three Guantánamo prisoners were found dead in their cells. Two days later, a Department of Defense (DoD) news release described these deaths as suicides. The news release quoted Camp Commander Harry Harris, who described these suicides as acts of asymmetric warfaremeant to advance al-Qaeda’s cause in the war on terror.

The news release was categorical with regards to the self-inflicted nature of the deaths. And the camp commander was equally certain of their hostile intent. Yet the news release was curiously guarded about themanner of these deaths – the three “appear” to have hanged themselves with nooses made of bed sheets and clothing, it said.

The deaths of these three individuals was the subject of an investigation by the Naval Criminal Investigative Service (NCIS). The much-awaited report of this investigation concluded that these deaths were indeed self-inflicted. Yet, a close reading of the heavily redacted material released by the NCIS raises more than a few questions, both for this researcher and for others, regarding the exact circumstances of these deaths. To wit:

• Why did the prisoners have their hands tied when they were found hanging in their cells? (NCIS185, NCIS950,NCIS1012, NCIS958, AUTO693-1)
• Is it possible to tie one’s own hands?
• Why were the prisoners gagged with cloth? They were already going to kill themselves by silent suffocation through hanging; why suffocate themselves silently twice? (NCIS966,NCIS975, NCIS1073f, NCIS1079, NCIS1091)
• Why did all three prisoners have masks – or mask-like contraptions – on their faces as they hanged? (AUTO693-1,NCIS950, NCIS990f)
• Is it physically possible to hang yourself bound, masked and gagged?
• Why was there a bloody T-shirt around the neck of one of the prisoners found hanging in his cell? (NCIS1113)
• Rigor mortis had begun to set in on the prisoners when they were discovered. Consequently, they had to have been hanging for two hours before they were discovered. According to Standard Operating Procedures, each of the prisoners had to be visually inspected every ten minutes. That means six inspections per prisoner per hour, or 36 inspections overall. How could the guards have missed the hangings in 36 visual inspections? (NCIS1025, NCIS1070,NCIS1078f, AUTO693-8, AUTO588-7)
• Why were the neck organs (the larynx, the hyoid bone and the thyroid cartillage) removed from one of the corpses? According to subsequent autopsies done privately, these would be essential in establishing whether or not hanging was the cause of death (AUT693-5)
• Why is there a page missing from a log book begun on the day the deaths were discovered and recording the entries and exits to the cell block where the suicides took place? (NCIS1354)

Incidentally, the information that the dead prisoners were gagged with rags came out before the NCIS report was even begun. This information was provided by Col. Michael Bumgarner, one of the Guantánamo commanders. Speaking to The Charlotte Observer, Col. Bumgarner said that the prisoners who had hanged themselves, “each had a ball of cloth in their mouth either for choking or muffling their voices.”

The deceased were known officially as Ali Abdullah Ahmed (ISN 693), Mana Shaman Allabardi al Tabi (ISN 588), and Yasser Talal al Zahrani (ISN 93). Their lifeless bodies were found hanging in cells A5, A12 and A8, respectively, of Alpha Block, Camp 1, Camp Delta (NCIS938).

The Testimonies of Several Guards And One Commander

In January 2010, Scott Horton published an explosive article in Harper’s Magazine. In it, he told about Staff Sgt. Joseph Hickman, who was guarding the entrance to Camp Delta on the night of the deaths. Early that night, Sergeant Hickman saw a white van pick up three prisoners from the Camp and drive them to a secretive facility within the Guantánamo Naval Base. Then, about an hour before the bodies were found hanging in their cells, the van returned and backed up to the entrance of the clinic as if to unload something. Hickman went to the clinic and a medical corpsman informed him that three dead prisoners had been delivered to the clinic. The corpsman furthermore told him that they had died because they had rags stuffed down their throats, and that one of them was severely bruised.

Spc. Tony Davila, also serving at Guantánamo at the time, was likewise told, according to Harper’s, that the prisoners had died as the result of having rags stuffed down their throats.

The article in Harper’s Magazine adds two critical questions to the nine raised thus far:

• Who were the three prisoners taken to the secret facility on the evening of the deaths?
• What happened to them there?

In addition to this information, two Guantanamo guards other than the ones mentioned thus far told Horton that no prisoners were taken from the regular cell blocks to the clinic that night. Several guards also confirmed to him that Bumgarner had acknowledged the gagging early on. Indeed, according to Harper’s, the colonel called a meeting of personnel on the morning of the deaths; at that meeting, he is said to have told those in attendance that, “you all know three prisoners in the Alpha Block at Camp 1 committed suicide during the night by swallowing rags, causing them to choke to death.” (The Guantánamo Suicides, §5)

“He also told them,” Horton continued, “that the media would report something different. It would report that the three prisoners had committed suicide by hanging themselves in their cells. It was important, he said, that servicemen make no comments or suggestions that in any way undermined the official report. He reminded the soldiers and sailors that their phone and email communications were being monitored.”

The Dryboarding Of Ali Al-Marri

Ali Saleh al-Marri is a citizen of Qatar who entered the United States lawfully in September 2011. Ostensibly, he had come with his wife and five children to pursue graduate studies at Bradley University in Peoria, Illinois – the same institution from which he had earned a bachelors degree in 1991. On December 12, 2001, Mr. al-Marri was arrested by the FBI as an alleged material witness of the terrorist attacks of September 11 (Complaint,§§14-15).

Mr. al-Marri was initially detained at the Peoria County Jail. From there, he was transferred to the Metropolitan Correctional Center in New York City, and then back to the Peoria County Jail in May 2003. By then, Mr. al-Marri had been detained without charge for 17 months, most of which he had spent in solitary confinement (Complaint, §§15-16, 21).

On June 23, 2003, then-president George W. Bush designated Mr. al-Marri an enemy combatant and had him transferred to the US Naval consolidated brig in Charleston, South Carolina, the same prison that once housed alleged dirty-bomber Jose Padilla, former Guantánamo prisoner Yasser Hamdi and former Guantánamo Chaplain James Yee. Mr. al-Marri remained at the brig until February 2009. By then, he had been held for more than seven years – all without charge; all in virtual isolation (Complaint, §§25-26).

In 2008, President Obama transferred Mr. al-Marri’s case to the federal court system, where he pleaded guilty of supporting al-Qaeda and was sentenced to 15 years. He is now held at the supermax prison in Florence, Colorado. He received a reduced sentence for time served and the harsh conditions of his confinement and is due to be released in January 2015 (Federal Bureau of Prisons web site).

This December, Mr. al-Marri will have spent ten years in custody. Of these years, the most brutal were the first year and a half he spent at the Naval consolidated brig, from June 2003 to October 2004. There he was held incommunicado – meaning that he was denied any contact with the outside world, including his family, his lawyers and even the International Committee of the Red Cross. His only human contact then was with government officials during interrogation sessions, or with guards when they delivered trays of food through a slot in his cell door, escorted him to shower or took him to a concrete cage for “recreation” (Memorandum, p. 4).

During this period, Mr. al-Marri was held in a 6-by-9-foot cell, denied basic necessities, including adequate clothing, recreation, and hygiene items such as a toothbrush, toothpaste, soap and toilet paper. Sometimes the water to his cell was cut off for up to 20 days. If Mr. al-Marri needed water to drink or to wash himself, he had to ring a buzzer. Brig staff would often fail to respond for several hours. Brig staff also interfered with Mr. al-Marri’s practice of his religion. A devout Muslim, he was denied water to purify himself, a prayer rug, and a kofi to cover his head during prayer. When he used his shirt as a substitute, he was punished by having his shirt removed. He was prohibited from knowing the time of day and the direction to Mecca, thus preventing him from properly fulfilling the Muslim requirement of praying five times a day. The only religious item he was permitted was a Koran – but it was sometimes taken away and desecrated (Memorandum, pp. 5-6).

While held incommunicado, Mr. al-Marri was subjected to a brutal interrogation regime which included stress positions, prolonged exposures to cold temperatures, extreme sensory deprivation, and threats of violence or death to himself or to others. Interrogators, for example, told Mr. al-Marri that they would send him to Egypt or to Saudi Arabia to be tortured, sodomized and forced to watch as his wife was raped in front of him. They also threatened to make him disappear so that no one would know where he was (Memorandum, pp. 4-5).

But of all the interrogation techniques that Mr. al-Marri endured, there is one that is, potentially, of great importance for an accurate interpretation of the deaths at Guantánamo in 2006. Yet, it would have gone unnoticed were it not for a recent articleby Tony Bartelme in Charleston’s Post and Courier.

Indeed, on one occasion, interrogators decided to stuff Mr. al-Marri’s mouth with cloth and cover his mouth with heavy duct tape – a technique of controlled suffocation that Mr. al-Marri’s lawyer, Andrew Savage, has called dryboarding. Dryboarding is not just a criminal practice; it is a potentially lethal procedure. As he was being dryboarded, Mr. al-Marri tried to relieve the pain caused by the duct tape by loosening the tape with his lips. He succeeded. Taking note of this, the interrogators taped his mouth again, but this time more tightly. At this point, Mr. al-Marri began to choke to death. Panicking, the interrogators acted quickly and removed the tape, thus managing, narrowly, to keep Mr. al-Marri alive (Memorandum, p. 5).

This account of the events is apparently undisputed. Ms. Joanna Baltes, who appeared on behalf of the government in the sentencing of Mr. al-Marri, seems to have acknowledged that this incident took place. She also recognized that this procedure was inconsistent with the Army Field Manual (Sentencing, pp. 259, 261). There are no signs, however, that anyone has been held accountable for carrying it out.

Video recordings of this incident exist, but have been repeatedly denied to Mr. al-Marri’s legal team on grounds of national security (Sentencing, p. 261; Andrew Savage, personal communication).

Suicide or Dryboarding?

The dryboarding of Mr. al-Marri raises an unavoidable question:Did the three individuals found hanging in Guantánamo die from dryboarding rather than by hanging? If so, they would be cases not of multiple suicide, but rather of torture leading to multiple loss of life.

Whether the Guantánamo prisoners died from hanging or from dryboarding is something for a thorough, independent and transparent inquiry to determine – the NCIS investigation was none of these. If it had been thorough, it would have disposed of all the questions we raised above; if it had been independent, it would not have been carried out by the Navy, which runs the Guantanamo Naval Base; and if it had been transparent, it would not have censored more than half of its report.

Be that as it may, it is clear that dryboarding can dispose, singlehandedly, of all the questions we have raised thus far – especially the questions regarding the need for gagging with cloth and for using masks or mask-like contraptions. They would be nothing short of essential to the task at hand.

The dryboarding hypothesis would also explain the binding of the hands, the fact that no hanging was observed after 36 visual inspections, the removal of the organs of the neck, and the missing pages in the log book – the latter being attempts at destroying evidence of a crime. It would also void the need for dubious appeals to self-binding and hobbled hangings. Similarly, it would identify the prisoners taken from Camp Delta and reveal their fate.

And the violent conditions necessitated by dryboarding could account for the bruising and bloodied T-shirt. Even the guarded description of the manner of death in the early news release would make sense under a dryboarding scenario.

But there is more. Two of the documents in the NCIS report affirm that the rags in the mouths of the deceased were socks. One of these socks was described as white athletic; the other as white nylon (NCIS1073f, NCIS1091). Interestingly, the cloth used in the dryboarding of Mr. al-Marri was also a sock (Andrew Savage, personal communication).

In light of the unanswered questions, one thing remains clear: there is a need for a thorough, independent and transparent investigation into the June 10, 2006, deaths at Guantánamo and, more broadly, for a thorough, independent and transparent inquiry into all the practices and policies of detention enacted since the terrorist attacks of September 11, 2001.

To view in full the documents cited in this report, click here.

 

November 14th, 2011

Thom Hartmann: Will Corporations get the Right to Commit Genocide?

Corporations are people when they get the right to buy elections. But they are not eligible to be sued for murder, rape, or torture, a Federal Appeals Court has ruled. The Roberts Supreme Court agrees to take this up.

October 20th, 2011

US STD research in Guatemala killed at least 83

The US commission investigating STD research unwittingly conducted on Guatemalans in the 1940s has concluded that “at least 83 people died as a result of the “study” AFP reports We are still waiting for a comparable investigation of, and governmental apology for, similarly unethical CIA torture research.

Unethical U.S. research killed 83 in Guatemala: panel

WASHINGTON — At least 83 people died as human guinea pigs in macabre US research on sexually transmitted diseases in Guatemala in the 1940s, a commission ordered by President Barack Obama concluded Monday.

Nearly 5,500 people were subjected to diagnostic testing and more than 1,300 were exposed to venereal diseases by human contact or inoculations in research meant to test the drug penicillin, the presidential commission found.

Within that group, “we believe that there were 83 deaths,” said Stephen Hauser a member of the commission, which has pored over 125,000 documents linked to the shocking episode since being set up by Obama last November.

Among the 1,300 people exposed to STDs during research between 1946 and 1948, “under 700 received some form of treatment as best as could be documented,” Hauser said.

Obama personally apologized to Guatemalan President Alvaro Colom in October before ordering a thorough review of what happened. Secretary of State Hillary Clinton described the experiments as “clearly unethical.”

This sentiment was clearly expressed by the commission, which said US government researchers must have known they were contravening ethical standards by deliberately infecting mental patients with syphilis.

Commission president Amy Gutmann called it an “historic injustice,” and said the inquiry aimed to “honor the victims and make sure it never happens again.”

“It was not an accident that this happened in Guatemala,” Gutmann said. “Some of the people involved said we could not do this in our own country.”

The US researchers “systematically failed to act in accordance with minimal respect for human rights and morality in the conduct of research,” she said, citing “substantial evidence” of an attempted cover-up.

A Guatemalan study, which was never published, came to light in 2010 after Wellesley College professor Susan Reverby stumbled upon archived documents outlining the experiment led by controversial US doctor John Cutler.

Cutler and his fellow researchers enrolled 1,500 people in Guatemala, including mental patients, for the study, which aimed to find out if penicillin could be used to prevent sexually transmitted diseases.

Initially, the researchers infected female Guatemalan commercial sex workers with gonorrhea or syphilis, and then encouraged them to have unprotected sex with soldiers or prison inmates.

Neither were the subjects told what the purpose of the research was nor were they warned of its potentially fatal consequences.

Cutler, who died in 2003, was also involved in a highly controversial study known as the Tuskegee Experiment in which hundreds of African-American men with late-stage syphilis were observed but given no treatment between 1932 and 1972.

The Guatemalan president has called the 1946-1948 experiments conducted by the US National Institutes of Health “crimes against humanity” and ordered his own investigation.

August 30th, 2011

New York psychology licensing board doesn’t have to investigate torture, court rules

For years we activist psychologists have been trying to get the APA and state licensing boards to act against psychologists allegedly involved in detainee abuse. So far, every venue has refused to act. Lawsuits in several states have tried to compel the state boards to investigate the allegations. With one exception, all boards have failed to conduct any sort of investigation. Today word comes that a New York juge has decided in favor of the board’s right to do do nothing in the case of psychologist John Leso, implicated in the torture of Mohamed al-Qhatani at Guantanamo:

A New York judge has declined to force an investigation into whether an Army psychologist developed abusive interrogation techniques for Guantanamo Bay detainees and should be stripped of his license.

The ruling was made public Thursday. It says another psychologist who brought the case cannot force a state agency to investigate complaints of professional misconduct.

….

The case sought to compel a state licensing office to look into psychologist John Leso. The agency says his Army work fell outside its scope.

The board’s reasoning is that psychology involves helping people. If skills are used intentionally to harm, then that does not involve the practice of psychology and is immune to board action, despite the fact that Army regulations require that their “Behavioral Science Consultants” have state licenses and uses the existence of these licenses as the basis for not investigating the professional ethics of these psychologists. Thus, torture and abuse by licensed psychologists is nobody’s business, constructing a perfect web of protection for torturers.

BTW, the American Psychological Association (APA) has had multiple complaints against Leso since August 2006 and has so far done nothing in the five years since the first complaint was filed. Their last excuse was that they were waiting to see what New York state would do. Now that New York has decided they don’t have jurisdiction, what new excuse will the APA come up with?

August 11th, 2011

A chink in the armor: Donald Rumsfeld can be sued for torture

So far, the Obama administration has managed to close off virtually every avenue of accountability for torture by US officials. But the courts has refused to join the Obama DOJ in declaring torture of anyone anywhere anytime by US officials totally protected. In two weeks two US courts have ruled that former Defense Secretary Rumsfeld can be sued by US citizens who claim they were tortured on his orders. While not much, this does break a tiny hole into the Obama doctrine of sovereign immunity for torture. Dahlia Lithwick explains:

It’s important to understand that the court makes no judgment on Vance and Ertel’s claims. But for the purposes of Rumsfeld’s motion to dismiss, the court is legally bound to treat their claims as if they are true. That’s hugely consequential because, as Adam Serwer explained last week: “When deciding whether or not these cases are allowed to go forward, judges have to assume that the plaintiff’s version of events is ‘reasonable.’ So part of what Rumsfeld and his team have to argue is that even if the allegations were true, the law doesn’t allow Doe to sue the government for torturing him and detaining him without trial.” Rumsfeld and the Obama administration have taken precisely this position. Even if everything Vance alleges is true, he still loses. They claim, in short, that Rumsfeld should be immune from suit because it was unreasonable to have expected him to know that the abuse he authorized was unconstitutional. They also raise claims about the dangers of judicial intrusions on the executive branch’s war-making powers and—of course—about the danger of disclosing state secrets.

The full article:

Damages
An appeals court allows a suit against Donald Rumsfeld to go forward.

By Dahlia Lithwick

Last week, a federal district court judge in Washington, D.C., determined that a lawsuit filed against former Defense Secretary Donald Rumsfeld by a former military translator who claimed to have been tortured by U.S. forces at Camp Cropper in Iraq could go forward despite claims from Rumsfeld and the Obama administration that he should be immune from suit. After assessing the claims of “John Doe,” Judge James S. Gwin found that American citizens don’t lose their constitutional rights simply because it’s wartime. “The court finds no convincing reason,” wrote Gwin, “that United States citizens in Iraq should or must lose previously-declared substantive due process protections during prolonged detention in a conflict zone abroad.”

On Monday, a three-judge panel from the Chicago-based 7^th Circuit Court of Appeals came to pretty much the same conclusion. Reviewing a different lawsuit, filed by two different military contractors, alleging similar forms of abuse at the same camp, the panel determined, with one judge filing a partial dissent, that their suit against Rumsfeld could proceed.

The case of Donald Vance and Nathan Ertel reads like Catch-22, updated for an even sillier war. In a 2006 profile of Vance for the New York Times, Michael Moss laid out the story: Vance was “a 29-year-old Navy veteran from Chicago who went to Iraq as a security contractor. He wound up as a whistle-blower, passing information to the FBI about suspicious activities at the Iraqi security firm where he worked, including what he said was possible illegal weapons trading. But when American soldiers raided the company at his urging, Mr. Vance and another American who worked there [Ertel] were detained as suspects by the military, which was unaware that Mr. Vance was an informer, according to officials and military documents.”

Vance and Ertel became suspicious about activities at Shield Group Security the Iraqi security firm that employed them—activities that included stockpiling weapons and offering liquor to U.S. soldiers in exchange for bullets and weapon repairs. When he became an informant for the FBI, he was risking his life to protect national security. Shield Group Security began to suspect Vance and Ertel and things got hairy. A military team sent in to rescue them ended up shipping them to Camp Cropper and warehoused them at Compound 5, the maximum-security unit where Saddam Hussein was held.

Overnight, Vance and Ertel went from U.S. contractors to “enemy combatants,” and both were allegedly subjected to sleep deprivation, aggressive interrogation, blindfolding, shackling, hooding, and “walling.” Both were denied access to legal counsel for their appearances before the Detainee Status Board, and neither was allowed to see the evidence against them. Writing for the majority today, Judge David Hamilton doesn’t mince words about this treatment:

After the plaintiffs were taken to Camp Cropper, they experienced a nightmarish scene in which they were detained incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment—Vance for three months and Ertel for six weeks. They allege that all of the abuse they endured in those weeks was inflicted by Americans, some military officials and some civilian officials. They allege that the torture they experienced was of the kind “supposedly reserved for terrorists and so-called enemy combatants.” If the plaintiffs’ allegations are true, two young American civilians were trying to do the right thing by becoming whistleblowers to the U.S. government, but found themselves detained in prison and tortured by their own government, without notice to their families and with no sign of when the harsh physical and psychological abuse would end.

The two were never charged with any crime. Instead, in a resolution that looks ever more familiar, both were eventually dumped at the airport in Baghdad to make their own way home. They sued Rumsfeld and other “unknown defendants” for “their roles in creating and carrying out policies that caused plaintiffs’ alleged torture.” Rumsfeld moved to dismiss all claims. The district court agreed to dismiss some claims but allowed the case to proceed on others, including the claim that their treatment amounted to unconstitutional cruel, inhuman, and degrading treatment.

It’s important to understand that the court makes no judgment on Vance and Ertel’s claims. But for the purposes of Rumsfeld’s motion to dismiss, the court is legally bound to treat their claims as if they are true. That’s hugely consequential because, as Adam Serwer explained last week: “When deciding whether or not these cases are allowed to go forward, judges have to assume that the plaintiff’s version of events is ‘reasonable.’ So part of what Rumsfeld and his team have to argue is that even if the allegations were true, the law doesn’t allow Doe to sue the government for torturing him and detaining him without trial.” Rumsfeld and the Obama administration have taken precisely this position. Even if everything Vance alleges is true, he still loses. They claim, in short, that Rumsfeld should be immune from suit because it was unreasonable to have expected him to know that the abuse he authorized was unconstitutional. They also raise claims about the dangers of judicial intrusions on the executive branch’s war-making powers and—of course—about the danger of disclosing state secrets.

It’s a pretty high standard for the plaintiffs to meet. As the court explains it, “the inquiry before us is whether the plaintiffs have pled sufficiently that defendant Secretary Rumsfeld personally established the relevant policies that authorized the unconstitutional torture they allege they suffered.” But the majority finds that Vance and Ertel did plead sufficient facts to show that Rumsfeld had personal responsibility for their mistreatment.

Turning to the question of Rumsfeld’s qualified immunity from suit, the majority finds that “plaintiffs have articulated facts that, if true, would show the violation of a clearly established constitutional right.” Judge Hamilton reminds us that the questions about the legality of torture are not really “questions” at all, asking: “On what conceivable basis could a U.S. public official possibly conclude that it was constitutional to torture U.S. citizens?” He then quotes 18 USC, Section 2340A (the statute criminalizing overseas torture); the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; and Siderman de Blake v. Republic of Argentina (a 9^th Circuit decision finding that “it would be unthinkable to conclude other than that acts of official torture violate customary international law”). Hamilton writes that “The wrongdoing alleged here violates the most basic terms of the constitutional compact between our government and the citizens of this country. … There can be no doubt that the deliberate infliction of such treatment on U.S. citizens, even in a war zone, is unconstitutional.”

The majority addresses and dismisses the national-security and state-secrets claims. It’s clear that for the majority, the fact that the victims here were American citizens abroad makes an enormous difference to the outcome of the case. When reached for comment today, Michael Kanovitz, who represents Vance and Ertel, reiterated that critical fact: “This court was faced with a choice between protecting the most fundamental rights of American citizens in the difficult context of a war or leaving those rights solely in the hands of politicians and the military. The court sided with the rights of the citizens. It was not an easy choice for the court to make, but it was the brave and right choice.”

That it was a brave and right choice may not be enough to rescue this case if and when it ever comes to a trial. (The case may still be appealed to the full Seventh Circuit or to the Supreme Court.) It will be a challenge for the plaintiffs to show what they say they can prove. But the case, even as it stands today, should suffice to remind the rest of us that this isn’t a case about foreigners at Guantanamo but a case about a Navy veteran caught up in a series of errors in the field. This case isn’t about the rights of an enemy soldier detained on a battlefield with a weapon in his hand. It’s about the rights of brave whistle-blowers who were tortured by bureaucratic mistake.

If you don’t believe the war on terror is migrating into your backyard, this case is confirmation. If you don’t think the state-secrets doctrine will be trotted out to protect the government’s abuse of innocent Americans as well as foreign prisoners, this case proves it. If you worry that “turning the page” means always finding more of the same, this case makes that plain. A country in which nobody is ever really responsible is a country in which nobody is ever truly safe.

Dahlia Lithwick is a Slate senior editor. Follow her on Twitter.

1 comment August 9th, 2011

Australian prosecutor attempts to seize David Hicks book assets

In a recent article at hi new blog on Firedoglake, Jeffrey Kaye writes of the Australian prosecutor’s attempts to seize the proceeds from released Guantanamo prisoner David Hicks’ book:

Aussie Prosecutors’ Vendetta Targets Ex-Guantanamo Detainee’s Book Proceeds

By Jeff Kaye

Australian news sources have announced that the Commonwealth Director of Public Prosecutions (CDPP) have initiated legal actions to seize the royalties former Guantanamo detainee David Hicks has earned from the publication of his autobiography, Guantanamo: My Journey. The book was published last year by Random House Australia, and has reportedly sold upwards of 30,000 copies. No U.S. publisher has bought rights to the book, and it remains unavailable through U.S. booksellers.

Terry Hicks, David’s father, called the move “absolutely disgusting,” and according to my sources, the Hicks family is said to be “devastated.”

According to a report by The Australian, under Australia’s Commonwealth Proceeds of Crime Act “a person cannot profit from proceeds derived from the commercial exploitation of their criminal notoriety arising from a foreign indictable offence.” The “offense” in this case is Hicks’ guilty plea before the spurious U.S. military commissions to supposedly “providing material support to terrorism.”

But as Australian barrister Ben Saul, who has advised Hicks in various matters, noted last February, responding to earlier propaganda beseeching  the Australian government to confiscate Hicks’ book earnings:

Yet, it is almost certain that such offence did not exist in law at the time of Hicks’ conduct. As a result, his conviction is retrospective and contrary to international law. The conviction for that bogus offence also resulted from a procedurally unfair trial, and probably torture.

Saul also commented in the same article on the irony that calls have gone out to confiscate any profits David Hicks might receive from his book, while former Australian Prime Minister John Howard is free to profit from his own memoir, recently published, Lazarus Rising. Howard, Saul notes “has evaded comparable scrutiny, principally because his suspected crime – the illegal, aggressive invasion of Iraq – is not covered by Australia’s proceeds of crime laws.”

Indeed, not only was Howard guilty of using his executive powers to commit Australian forces to the U.S.-organized 2003 invasion of Iraq, he was also heavily involved in decisions made around the incarceration of Hicks himself, as the former Guantanamo detainee and torture victim describes in his book (which again, I stress, is unavailable through routine retail outlets in the United States). It was only through the intervention of Dick Cheney, and his hand-picked military commissions Convening Authority Susan Crawford, on behalf of U.S. authorities desperate at the time to conclude at least one of their military commissions prosecutions, that a plea deal was ever struck.

Interestingly, the plea deal allowed an Alford plea, which meant Hicks could plea guilty to the single “material support” charge, while never formally agreeing to admit to guilt in his actions. In his book, Hicks clearly states that he pleaded guilty in order to get out of Guantanamo, and that up to that time, he had been in fact considering suicide.

Susan Crawford, after negotiating with my lawyers and saying no to serving less time, agreed to allow me to enter an Alford Plea if I chose, as an incentive to cooperate. Under this US legislation, a person can plead guilty without admitting to the act they are accused of. In other words, contrary to media reports, I did not ‘admit’ or ‘confess’ to providing material support to terrorism; I pleaded guilty without accepting guilt to the charge so I could return home. To plead guilty was really saying that the system was unfair and I could never win, not that I ever provided support to a terrorist organisation.

I had two choices: take the Alford Plea and face all ramifications and consequences that would follow, or return to my cell, resign myself to hopelessness and follow through with my suicide plan.

The plea bargain also included other onerous conditions, including a one-year gag order, an agreement he would assign all monies from his story to the Australian government, a statement that he was not coerced into accepting the plea bargain, and an agreement to cooperate with U.S. and Australian security officials for the rest of his life, among other ridiculous stipulations.

 

It is difficult to know why  the CDPP has decided now to officially go after Hicks’ royalties. One wonders if it had anything to do with the warm reception and ovation he received when he spoke to “a packed audience of 1000 people at the Sydney Writers’ Festival” last May. At the same event, Hicks “also warned that Julian Assange could face a similar abandonment by the Australian government, if the US government get their hands on him.”

Certainly the Australian government has not taken kindly to the fact that David has chosen not to remain silent about the abuses he endured, or the criminal activities that took place at Guantanamo. Last year, he submitted an affidavit (PDF) to the United Nations Human Rights Committee, detailing numerous breaches of the International Covenant on Civil and Political Rights relevant to his case.

One of the items concerns the charges of “material support”:

In 2007, a United States (US) military commission at Guantanamo Bay, Cuba, convicted Mr Hicks of the offence of ‘providing material support for terrorism’ under section 950v(25) of the Military Commission Act 2006 (USA) (‘MCA’) (Annexure C). That offence was unknown to international law or US domestic law at the time of Mr Hicks’ alleged conduct and Mr Hicks was thus subject to retroactive criminal punishment, contrary to article 15 of the ICCPR. By entering into a Prisoner Transfer Arrangement (Annexure Q) with the US, to enforce Mr Hicks’ sentence of imprisonment in an Australian prison, and by enacting related domestic legislation, Australia assumed direct responsibility for the unlawful, retrospective criminal punishment of Mr Hicks. Such conduct was not justifiable and reasonable alternatives to it were available in order to achieve the humanitarian purpose of securing Mr Hicks’ release from Guantanamo Bay.

Nevertheless, according to The Australian article, University of New South Wales law professor George Williams thought the CDPP had “a strong case.” “But that is subject to a court giving weight and recognizing the validity of Hicks’s plea and the conviction. This may well be an opportunity for David Hicks to open up questions about those matters,” Professor Williams said.

Torture and Medical Experimentation

Why would a man plead guilty to something to which he was innocent? Why was such a plea — or suicide — preferable to continued detention in the U.S. Cuban island prison?

As David Hicks outlined in his book, he was subjected to numerous kinds of torture, in addition to probable medical experiments. Last February, investigative journalist Jason Leopold published at Truthout the first in-depth interview with Hicks. In his introduction, Leopold summarized the torture Hicks endured at the hands of Guantanamo authorities:

Hicks was brutally tortured. Psychologically and physically for four years, maybe longer. He was injected in the back of his neck with unknown drugs. He was sodomized with a foreign object. He spent nearly a year in solitary confinement. He was beaten once for ten hours. He was threatened with death. He was placed in painful stress positions. He was subjected to sleep deprivation. He was exposed to extremely cold temperatures, loud music and strobe lights designed to disorient his senses. He was interrogated on a near daily basis.

In Guantanamo: My Journey, Hicks described one of the medical experiments:

I was given an injection. Within an hour or so I couldn’t help but huddle in a corner of the cage. Physically, I felt comfortable, even though it was an odd thing for me to do. In the back of my mind I knew it was strange, but as long as I stayed in that corner I had no real thoughts at all. When I tried to move from that position, whether to eat or go to the toilet, I became extremely agitated and nervous. I would quickly resume my huddled position. Getting the slight shakes was another side effect of this medication. Some time on the second day I began to feel normal again and came out of the corner. I knew I had acted unusually but, because most of that period was a blank in my mind, I could not decide if the injection was responsible. I think it was the day after, when I began to feel normal again, that I was given another injection. I was scared and pleaded for them not to, but I was threatened with an IRFing if I did not cooperate. [The Immediate Reaction Force (IRF) was a riot squad mobilized to brutalize Guantanamo inmates.] A majority of detainees were being IRFed by then for refusing medication, so I just surrendered my arm, thinking that the needle might snap off in my shoulder if they jabbed me during a beating. I was quickly aware of the results. I went straight to the corner again and curled up but, unlike last time, I was under no illusions about what was happening or why. I tried to fight this chemical reaction but was powerless. My mind was clear and alert, and I could identify my behaviour as abnormal, but my body would not listen to my mind. I had no control and remained in the corner, despite wanting to move. This time around the experience was very distressing. All I could do was wait for the effects of the medication to wear off a full day later.

Once again it was the ICRC [International Committee of the Red Cross] that saved us. This period of forced injections and pills coincided with another visit from the only group of people on that island who did not wish us harm: the ICRC. Before I was given a third injection, MPs came and escorted me to an interrogation building, where I had a private interview with an ICRC employee. I pleaded with him to do something about these medical experiments. He told me that nearly every detainee he had seen so far had reported the same program and its effects. Almost instantly after that interview the injections and tablets were stopped, and I did not have to endure another injection. Instead of nearly daily doses, it went back to the normal – at least one injection every two months, including having blood samples taken.

In the United States, outrageously there has been next to no interest in pursuing charges of medical experimentation upon detainees held by the United States. Similar stories of such experiments have been given by a number of released detainees. Additionally,  Jason Leopold and I have published a number of articles about the abusive administration of an unprecedented mass administration of a controversial antimalarial drug, melfoquine, known for serious neuropsychiatric effects, on all Guantanamo detainees as part of their initial in-processing. (See here, here, and here.)

A FOIA of an Inspector General report on drugging of detainees has been in process for this reporter for nearly a year, with such delay belying claims of “transparency” and prompt Freedom of Information response by the Obama Administration.

Clearly, the attempts to seize royalties from David Hicks is part of an attempt to impugn his work, and to punish or isolate him for truth-telling. Such bullying can only be stopped by international and Australian protest.

Update: The Justice Campaign, an Australian human rights, anti-torture organization formed largely to help publicize the David Hicks case has released a statement on the CDPP legal actions.

The Justice Campaign (TJC) is appalled at the news that the Australian Government has moved to recover the proceeds of David Hicks’ book, Guantanamo: My Journey.

TJC patron, the Hon. John Dowd said today “David Hicks has not been convicted of a crime in Australia. He has not been convicted of an offence under US law. There is no basis for removing any profits from the sale of his book.” Justice Dowd said.

“The Military Commissions Charges were invalid under US law and he was coerced.”

TJC spokesperson, Stephen Kenny said today “this is a blatant move to shift the focus of the Australian government’s responsibility to thoroughly and openly investigate torture allegations….

The Justice Campaign remains committed in calling for an investigation into David’s credible allegations of torture and the political interference in his eventual plea deal.

(Note: differences in spelling of some words, i.e. between U.S. and Australian spellings, has been left intact in this article, when Australian spellings were included in quoted material.)

 

July 22nd, 2011

Larry Wilkerson on US torture

The Real News has a series of interviews, War is Not About Truth, Justice and the American Way with Col. Larry Wilkerson, former Chief of Staff to Colin Powell at the State Department.

Here is the most recent interview in which Col. Wilkerson explains how torture was the final straw that drove him from military officer to critic:

June 14th, 2011

Torture Accountability After All?

Those of us who opposed the Bush administration torture program have been demoralized by the lack of accountability for the numerous abuses committed as part of that program. President Obama decried torture, and said he would end it, but he also said he wanted to “look forward, not back,” apparently precluding investigations of the abuses committed by the previous administration.

The Obama administration has not merely refused to initiate criminal investigations of those who approved and ordered the Bush-Cheney torture program. They have declined even to support a Commission of Inquiry to explore what happened in a non-judicial forum. Further, the administration used every legal tool available – including spurious arguments about national security in US courts and diplomatic pressure on foreign governments – to stymie efforts at accountability through ethics complaints, domestic civil trials, and foreign criminal cases for the crimes committed by predecessors.

Over the last few years, as one avenue of accountability after another was closed, it looked as if the torture program would be protected as carefully by the Obama administration as it was by the Bush administration. The result, many feared, was that torture would remain an available tool of the state, to be dragged out by future administrations who could cite the lack of accountability for Bush torture by a Democratic administration as evidence of a bipartisan consensus that torture really isn’t that bad. Many human rights experts have argued that future courts, too, could view the current lack of accountability as a legal precedent, potentially further shielding future torturers.

The one avenue for accountability that wasn’t closed by the Obama administration was the investigation by Department of Justice prosecutor John Durham. Durham, readers may recall, was the Federal prosecutor originally tasked to investigate the destruction of CIA interrogation videotapes in apparent violation of a court order. In 2009 Attorney General Eric Holder expanded Durham’s mandate to include investigating incidents of detainee treatment that went beyond even those actions approved under the so-called “torture memos” of the Bush Justice Department.

Durham’s expanded investigation has dragged on for two years with little visibility, except for his declaration in January that he would not indict anyone for the destruction of the interrogation videotapes. Many in the human rights community took the lack of indictments in the tapes case as an indication that Durham would ultimately decline to prosecute anyone, thus closing yet another avenue for possible accountability.

The pro-torture party of former Bush officials and right-wing pundits who defended the “enhanced interrogation” torture program at every opportunity did not appear as convinced as human rights advocates that Durham’s investigation would ultimately turn into a paper tiger. In the aftermath of the Bin Laden raid, they repeatedly harped on two issues. First, they vociferously claimed, using patently absurd arguments, that Bin Laden’s death showed that torture “worked.” Second, they frantically demanded that Durham’s investigation be called off.

It now appears that the pro-torture party may have recognized the implications of Durham’s investigation better than did most human rights advocates. On Monday, Adam Zagorin reported in TIME that Durham was in the process of actively investigating the murder of Manadel al-Jamadi, the Iraqi general whose frozen, brutally abused body appeared in the Abu Ghraib photographs. While al-Jamadi’s death had earlier been ruled a homicide, the Justice Department had taken no action. But Zagorin reports that Durham is now presenting evidence to a grand jury on the Jamadi case. And he apparently has his eyes on a possible perpetrator:

Perhaps most important, according to someone familiar with the investigation, Durham and FBI agents have said the probe’s focus involves “a specific civilian person.” Durham didn’t name names, but those close to the case believe that person is Mark Swanner, a non-covert CIA interrogator and polygraph expert who questioned al-Jamadi immediately before his death.

Also important is that Zagorin has a copy of a subpoena from the investigation that suggests that Durham may be looking beyond al-Jamadi:

TIME has obtained a copy of a subpoena signed by Durham that points to his grand jury’s broader mandate, which could involve charging additional CIA officers and contract employees in other cases. The subpoena says “the grand jury is conducting an investigation of possible violations of federal criminal laws involving War Crimes (18 USC/2441), Torture (18 USC 243OA) and related federal offenses.”

Thus, this investigation may be the beginning of a broader investigation of “CIA officers and contract employees.” One wonders if the CIA’s torture psychologist contractors James Mitchell and Bruce Jessen may be among Durham’s targets. This seems plausible since — based on later torture memos — their waterboarding and other “enhanced interrogation” tactics went, well beyond those authorized at the time in their intensity and longevity, providing potential liability under Durham’s mandate.

If Mitchell and Jessen are indeed targets, that could well explain the near panic of the torture defenders when they refer to the Durham investigation. These former officials and their apologists may be worried that an investigation into the actions of Mitchell and Jessen will go higher up the chain of command. Reportedly, everything done in the secret CIA prisons was approved in Washington, sometimes even in the White House. And, as Watergate demonstrated, investigations, once started, can sometimes climb the command chain to the very top.

There are no certainties in human rights work. But this latest news about Durham’s investigation is a rare bright spot in an otherwise bleak picture of continued abuses and absent accountability. It now appears possible that we might have some torture accountability after all.

June 13th, 2011