30+ torture memos remain sealed while thousands of torture photos will eventually be released. Be prepared: Learn the deep history of US torture in SERE, Vietnam, Latin America, GMTO, Black Sites and beyond in American Torture.

Friday, January 23, 2009

Obscurity Blankets Certain Anti-Torture Moves

Posted by Valtin at 10:24 PM |

Josh Gerstein at Politico has ably described the important shortcomings one finds in President Obama's Executive Orders issued yesterday to close Guantanamo and end torture. While the CIA is disallowed from using waterboarding and other "enhanced" torture techniques, and forced to adhere to the standards (flawed as they are) of the Army Field Manual; and while the CIA is forced now to close their secret black site prisons; and while Guantanamo itself is to be close "promptly... within a year", there are some troublesome problems remaining.

Not least is the problem with the Army Field Manual itself. Some former Bush administration figures and CIA types see the AFM as insufficient to guide their interrogation actions in the field. They want the ability to improvise their techniques to the given interrogation or situation. Many of these same people are implying that Obama's moves to close Guantanamo raises the spectre of the release of horrible terrorists in the homeland itself, who will attack American communities. In a column today, Glenn Greenwald dissects this fear-mongering campaign by the right.

Others, like myself, see the AFM as abusive in and of itself. The inclusion of Appendix M, and other procedures allowed by that document, means that use of techniques such as isolation, sleep deprivation, sensory deprivation, inducing fear and humiliation of prisoners is still allowed. These techniques, especially when used in combination, which is what the AFM suggests, certainly amount to cruel, inhumane and degrading behavior (in contradistinction to Geneva rules), if not torture itself.

Josh Gerstein emphasizes a now much-examined aspect of the language of the executive order on interrogations:
[The] order also created an interagency commission which will have six months to examine whether to create “additional or different guidance” for non-military agencies such as the CIA. One group that represents detainees, the Center for Constitutional Rights, deemed that an “escape hatch” to potentially allow enhanced interrogations in the future.

White House counsel Greg Craig told reporters such fears are misplaced. “This is not an invitation to bring back different techniques than those that are approved inside the Army Field Manual, but an invitation to this task force to make recommendations as to whether or not there should be a separate protocol that's more appropriate to the intelligence community,” he said....

“For now, they’re punting, saying they’ll comply with what’s in the Army manual…but at some point in the future this commission may revert to the executive” to recommend harsher techniques, said [Yale law school lecturer, and attorney for Guantanamo prisoner Ahmed Zuhair, Ramzi] Kassem, adding that he was concerned about how transparent the commission’s recommendations would be.
Gerstein has other caveats, as well. For one thing, the man ultimately in charge of Guantanamo in the last few years for Bush, Secretary of State Robert Gates, is also the man now in charge of re-examining whether conditions there meet "humane standards of confinement." His findings will be interesting for yet another reason. As Gerstein points out, Guantanamo prisoners still suffer from isolation and force feeding.
According to detainee lawyers, about two dozen inmates who refuse to eat as a form of protest are currently being force fed, and about 140 are in some form of solitary confinement....

As far as we know, the force feeding and solitary practices continued onto Obama’s watch. Craig dodged a question about the new president’s views on those issues. “I'm not going to get into the details,” Craig said.
As I and others have noted, Obama's executive orders say nothing about other U.S. prisoners held in Baghram (about 600), and the tens of thousands held in Iraq. Nor does the halt in the military commissions mean there won't be a return to some form of ersatz trial body in the near future.
That suggestion exasperates detainee lawyers like Kassem. “That would be a huge mistake, “ he said. “That system [is] set up to launder statements obtained through torture… What’s the point of getting rid of our offshore, improvised, sham, military tribunals in Cuba, only to recreate it here in the United States?”
The Center for Constitutional Rights has called for trying prisoners (who can be charged) in ordinary criminal courts.
The new administration must repatriate those who can be released safely, secure safe haven in the United States and other countries for those who cannot be repatriated safely, and prosecute in federal criminal courts those who should be prosecuted. Only 250 of 779 men remain in the prison camp. Most can be returned to their home countries through vigorous diplomacy. A smaller number need to be offered protection in the United States or third countries, many of whom have already begun to come forward to offer help to the new administration. There is no justification for continued detention without trial or the creation of special courts; such proposals would continue the human rights disaster rather than end it.
A number of political forces are circling around the torture interrogations issue. Senator Dianne Feinstein has apparently decided that Obama's executive order is not secure as policy, and declared she will go forward with legislation to "codify" the change to the Army Field Manual, making it less likely it can be overturned by further executive actions.

While Feinstein may see this as a progressive step, I see it as a danger, in that the abusive techniques left in the Army Field Manual will be perpetuated.

Much struggle still remains in the fight against torture. This next period will see a heightening of that struggle. One thing remains clear: we must not let the discussions and battles over it creep back into backroom corridors and out of public awareness. Hopefully, Obama's wish for greater openness, and his recent efforts to strengthen access to presidential records and government documents in general, through the Freedom of Information Act, will assist us in this effort. But the main tool of change will remain public awareness and public vigilance.

Also posted at Invictus

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Saturday, August 02, 2008

Why the Silence on Real Torture Timeline?

Posted by Valtin at 2:44 PM |

Last month, I examined the testimony from the Senate Armed Services Committee hearings on interrogations and torture. The hearings concentrated on the military's Survival, Evasion, Resistance, Escape (SERE) program, and its use of military psychologists hired by the CIA to "reverse-engineer" SERE program elements for use in coercive interrogations by the United States at Guantanamo Bay prison and elsewhere.

The timelines constructed out of this testimony and ancillary documentary evidence showed the Department of Defense turned to SERE for help in interrogating "enemy combatants" in July 2002. At least, that seems the case if you follow the summary given by SASC Committee Chair, Senator Carl Levin, adhered to in subsequent reports by every other journalist (but one).

Except, the timeline was wrong, and that fact is available for anyone to read in black and white. It was also admitted, grudgingly, by Levin himself, in an exchange with me during a "liveblog" session at Firedoglake.

As I wrote in my June 23 article:
While Senator Levin gives a fairly thorough presentation of how SERE techniques migrated to Guantanamo, including discussions and meetings and when they took place, and descriptions (at least in the documents released by the committee) of what kind of techniques were being taught, one date is inexplicably left out which Lt. Col. Baumgarten gave in his testimony. [Baumgarten is former Chief of Staff of Joint Personnel Recovery Agency (JPRA) for the Department of Defense, and administratively responsible for the SERE program.] Levin concentrates upon the late July 2002 request by Richard Shiffrin, a Deputy General Counsel in the Department of Defense, for information on SERE techniques and their effects upon prisoners.... But Baumgarten's own opening statement gives a more nuanced, different story. From [Lt. Col. Baumgarten's] statement, as published online (bold emphasis added):
My recollection of my first communication with [Department of Defense] OGC [Office of General Counsel] relative to techniques was with Mr. Richard Shiffrin in July 2002. However, during my two interviews with Committee staff members last year I was shown documents that indicated I had some communication with Mr. Shiffrin related to this matter in approximately December 2001. Although I do not specifically recall Mr. Shiffrin’s request to the JPRA for information in late 2001, my previous interviews with Committee staff members and review of documents connected with Mr. Shiffrin’s December 2001 request have confirmed to me the JPRA, at that time, provided Mr. Shiffrin information related to this Committee’s inquiry. From what I reviewed last year with Committee staff members, the information involved the exploitation process and historical information on captivity and lessons learned.
Now something is very strange here, as Levin's own staff appear to have documents indicating DoD was asking about SERE techniques in December 2001, eight months before the July 2002 request everyone else is concentrating on. Why this gap? My guess is that it would take us even closer to the Oval Office than Levin or anyone else wants to go at this point. Where are these documents on the December 2001 request? Why did no one on the committee question Baumgarten about this issue during the hearings?
Senator Levin Responds

Learning that Carl Levin was to participate in a "liveblog" discussion at Firedoglake on July 15, I showed up to ask my questions. What follows are my questions and Sen. Levin's responses.
[Valtin:] Sen. Levin, Your timeline for SERE interjection into U.S. torture training goes to July 2002. But Lt. Col. Baumgarten’s own statement indicates that he was approached by Shiffren (or others?) in December 2001. This is verified, supposedly, by documents your committee staffers showed him.

Why are these documents not released? Why isn’t this Dec. 2001 part of the timeline emphasized? Would not this early of an approach to use SERE for reverse-engineering purposes put some in the Administration in greater legal jeopardy, as the OLC rulings on detainees did not come until early 2002?
[Levin:] Lt. Col. Baumgartner did so testify at our hearing. However information relating to his discussions with Shiffrin remains classified. When our report is finalized we will press the DoD to declassify this matter.
[Valtin:] Thank you for your response, Sen. Levin. I suspected this was the case. Can you comment on the significance of a timeline that begins in December 2001 instead of July 2002, as that would help educate the public as to why such documents should be declassified. DoD could certainly do their usual redactions for security purposes. Or is it not just DoD we are talking about here?

Also, Sen. Levin, why wait until your report is “finalized” to press for declassification? That could be many months from now. Why not ask for declassification… now?
[Levin:] We have many pending requests for declassification, and we’re not waiting for our report to be finalized to ask for declassification of numerous documents. The Yoo memo is an example of where we put maximum pressure on for declassification. There is only one minute left in the roll call, so I have to run. Thanks for joining me today.
I hope the reader notices the care with which Sen. Levin made his remarks. He said nothing about the significance of the Baumgartner revelations. He also answered my complaint about the lassitude in pursuing declassification of the relevant documents with a huffy protestation of how the committee is pursuing the declassification of "numerous documents" -- though not necessarily the ones in their possession showing Pentagon OCG approaches to SERE re "the exploitation process" and the "lessons" of captivity and torture interrogation in December 2001.

The Importance of the Timeline

Why bury the information on the December 2001 portion of the timeline, moving the supposedly relevant first approach to SERE to July 2002? The answer is quite simple: the Administration had not gotten all its legal ducks in a row by December 2001, a time when the first detainees, such as so-called "American Taliban", John Walker Lindh, were being captured and tortured by U.S. interrogators in Afghanistan.
Lindh was found barely alive, shot in the leg, and suffering from dehydration, hypothermia and frostbite. Although Lindh was seriously wounded, starving, freezing, and exhausted, U.S. soldiers blindfolded and handcuffed him naked, scrawled “shithead” across the blindfold, duct-taped him to a stretcher for days in an unheated and unlit shipping container, threatened him with death, and posed with him for pictures. Parts of his ordeal were captured on videotape.
From the very beginning of the U.S. "war on terror", post-9/11, Bush Administration lawyers, led by David Addington (as argued so persuasively in Jane Mayer's new book, The Dark Side), looked for ways to deny U.S. and internationally recognized rights to prisoners caught up in the anti-terrorist dragnet and ongoing military operations.

Ultimately, President George W. Bush denied that even minimal Geneva Conventions protections applied to the "illegal enemy combatants" captured by the U.S. Subsequently, in an infamous set of memos written by Addington, Jay Bybee, Alberto Gonzales, John Yoo, and others, long-standing protections against torture and cruel, unusual, and inhumane treatment were taken away from the burgeoning population of prisoners, imprisoned now in ad hoc bases in Afghanistan, held on prison ships, and some subsequently either sent via "extraordinary rendition" to be tortured by foreign "allies", held incommunicado in secret CIA prisons, or shipped to the new U.S. prison constructed at the Guantanamo Naval Base in Cuba.

On February 7, 2002, Bush signed an executive order outlining treatment of al-Qaida and Taliban detainees:
Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:

a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.

b. I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise the authority in this or future conflicts.

c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to "armed conflict not of an international character."

d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.
A list of the Bush Administration documents on interrogation can be found at this Washington Post web page, including the January 22, 2002 memo written by Assistant Attorney General Jay S. Bybee and addressed to White House counsel Alberto R. Gonzales and the Pentagon's general counsel, William J. Haynes II. Bybee argued that that the War Crimes Act and the Geneva Convention did not apply to al Qaeda prisoners; the August 1, 2002 memo to White House counsel Alberto R. Gonzales from Jay S. Bybee of the Justice Department's Office of Legal Counsel concluded that techniques used to interrogate al Qaeda operatives would not violate a 1984 international treaty prohibiting torture", and others documents not mentioned here. (Of course, the WP list doesn't include new memos recently declassified, at least in part, as part of the ACLU Freedom of Information Act lawsuit against the government.)

The crucial point about all these memos and executive orders is that they come after the December 2001 approach by officials of the Department of Defense looking -- against all national and international laws, treaties and covenants then in effect -- how to torture prisoners held by the United States. Keeping the "timeline" safely within the July 2002 parameter provides a veneer of legal cover, as flimsy as it might be (since torture is always illegal, and it's not clear that even the Bybee, Yoo, and other memos will protect administration officials against prosecution for war crimes, at least by international tribunal).

While I am no attorney, I strongly believe the December 2001 origin of the timeline exposes officials in the U.S. government to prosecution for war crimes by both domestic and international bodies. Congressional officials, and first among them the members of the Senate Armed Services Committee, have not seen fit to seriously address their watchdog role, satisfying themselves with toothless votes of censure, limited hang-out investigations, and a refusal to pursue impeachment against Bush and Cheney.

A Call to Activists, Attorneys, and Journalists

The December 2001 Baumgartner documents are not going to be declassified, at least not in any timely way, unless public pressure is put upon the government to do so. One little blogger is not going to be enough to push back against bureaucratic inaction and/or obstructionism. Why important reporters and/or press or bloggers have not picked up on this is beyond me, but I will withhold judgment on that score for the time being, if only the delay in coverage is remedied soon.

The smoking gun is out there. And even if these documents do not turn out to be the smoking gun I think they are, the need to know our history for the last seven years, to come to terms with how the U.S. became a torturing nation, demands that we know the truth.

Senator Levin, release the documents from December 2001 that discuss any or all approaches by government officials to Lt. Col. Baumgartner, or other SERE or JPRA individuals or bodies regarding the "exploitation" or interrogation of prisoners in U.S. custody.
Senator Carl Levin can be reached at 269 Russell Office Building, U.S. Senate, Washington, DC 20510-2202. His email link is here. His telephone number is (202) 224-6221; Fax (202) 224-1388; TTY (202) 224-2816.
Also posted at Invictus

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