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Friday, April 17, 2009

Sick Torture Memos Also Lie: A Closer Look at the Bybee Memo

Posted by Valtin at 10:43 AM |

Also posted at AlterNet

Reading the just released August 1, 2002 memo by John Yoo (reportedly ghosting for Jay Bybee, then Assistant Attorney General of the United States, and now an Appeals Court Judge for the Ninth Circuit), to John Rizzo, then Acting General Counsel for the CIA, on the interrogation of Abu Zubaydah, is a surreal experience. There is so much that is strange and awful in it, it's hard to know where to begin.

But one thing that struck me right off the bat was the similarity of the statistics presented in the early part of the memo with the statement of Dr. Jerald Ogrisseg, a psychologist with Joint Personnel Recovery Agency, United States Joint Forces Command, before the Senate Committee on Armed Services on June 17, 2008.

Let's review some of the relevant text.

Yoo/Bybee write, "This letter memorializes our previous oral advice, given on July 24, 2002, and July 26, 2002, that the proposed conduct would not violate this prohibition." The prohibition referred to is the U.S. torture statute, Section 2340A, Title 18 of the U.S. Code.

In his statement, Ogrisseg states that July 24, 2002 was the date of his memorandum “Psychological Effects of Resistance Training.” Dr. Ogrisseg was then still a psychologist working for the Survival, Evasion, Resistance, and Escape (SERE) at the United States Air Force Survival School at Fairchild Air Force Base, Washington. Only a few days after filing his report with the commander of Joint Personnel Recovery Agency, the parent Pentagon organization for all the military SERE programs, on July 29 he became a civilian SERE psychologist, with a number of various duties.

More from Dr. Ogrisseg:
Mr. Chairman, with regards to my July 2002 communications with then Lt Col Dan Baumgartner, the then Chief of Staff of JPRA, my recollection is that Lt Col Baumgartner called me directly, probably on the same day that I generated my 24 July 2002 memorandum that I referenced earlier. He indicated that he was getting asked “from above” about the psychological effects of resistance training. I had no idea who was asking Lt Col Baumgartner “from above” and did not ask him to clarify who was asking. I recall reminding Lt Col Baumgartner in general terms about program evaluation data I’d presented in May of 2002 at the SERE Psychology Conference. These data, which were collected on Air Force survival students at different points of time during training, indicated that training significantly improves students confidence in their ability to adhere to the Code of Conduct.
Why might Bybee, Rizzo, Yoo or others have been interested in Ogrisseg's study of SERE psychological effects? The initial portions of the Aug. 1, 2002 memo are concerned primarily with demonstrating that the techniques migrating into the interrogation arena from SERE training programs were not harmful, physiologically or psychologically, at least not in a way that would violate the law as construed by the OLC attorneys.

Despite the presence of a "SERE training psychologist" from the very beginning of Zubaydah's interrogation. Captured in March 2002, Zubaydah told the ICRC he was tortured from the time of capture. He was allegedly waterboarded by June 2002. Now, unhappy with their intel, CIA was planning to move into an "increased pressure phase" on Zubaydah. OLC notes in the memo that it is relying on information about Zubaydah and Yoo/Bybee warns Rizzo if the "facts in your possession [are] contrary to the facts outlined here", then their "advice would not necessarily apply."

Were they suspicious about the situation as reported by Rizzo? Emptywheel noticed the reticence. The memo states (emphasis added):

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods.....
Nowhere else, significantly, does Yoo feel the need to quote so selectively and in such detail about what CIA Acting Counsel John Rizzo had represented to him.

Meanwhile, this is what Dan Coleman--an FBI guy with deep knowledge of al Qaeda--had to say about AZ in Ron Suskind's One Percent Doctrine:
Meanwhile, Dan Coleman and other knowledgeable members of the tribe of al Qaeda hunters at CIA were reading Zubaydah's top secret diary and shaking their heads.

"This guy is insane, certifiable, split personality," Coleman told a top official at FBI after a few days reviewing the Zubaydah haul.
In any case, the OLC felt it had to make the SERE techniques look as innocuous as possible. The techniques to be approved included the "attention grasp", "walling," facial slaps, "facial hold," cramped confinement, sleep deprivation, "wall standing" (really slamming a prisoner against the wall violently), insects placed in a confinement box, waterboarding, and stress positions.

Bybee/Yoo reeled off a series of statistics to Rizzo:
Through your consultation with various individuals responsible for such [SERE] training, you have learned that these techniques have been used as elements of a course of conduct without any reported incident of prolonged mental harm.
The memo mentions that hardly any complaints re SERE training were made to Congress, that one SERE "official" (name redacted) had trained 10,000 students in over three and a half years with only two dropouts, and "rare" requests for psychological counseling. The memo continues:
You have consulted with [redacted] who has ten years of experience with SERE training [about two lines redacted] He stated that, during those ten years, insofar as he is aware none of the individuals who completed the program suffered any adverse mental health effects.....

Additionally, you received a memorandum from the [redacted, about one line] which you supplied to us. [Redacted] has experience with the use of all these procedures in a course of conduct, with the exception of the insect in the confinement box and the waterboard. This memorandum confirms that the use of these procedures has not resulted in any reported instances of prolonged mental harm, and very few instances of immediate and temporary adverse psychological responses during the training. Of the 26,829 students trained from 1992 through 2001 in the Air Force SERE training, 4.3 percent of those students had contact with psychology services. Of those 4.3 percent, only 3.2 percent were pulled from the program for psychological reasons. Thus, out of the students trained overall, only 0.14 percent were pulled from the program for psychological reasons.
Surely one can do amazing things with statistics, and these last statistics seem very similar to those Dr. Ogrisseg had found in his research, presented the same day as the first oral approval by OLC to CIA in the Zubaydah request.

From Dr. Ogrisseg's statement:
Then, I recall Lt Col Baumgartner asking me if I thought training was harmful to students. This question and my responses to it formed the basis of my 24 July 2002 memorandum to Lt Col Baumgartner, which is the best record of the conversation that we had. In general terms, I indicated that a very small percentage of students (4.3%) had adverse psychological reactions to our training, but we (the survival psychology staff) were able to re-motivate almost all of those having adverse reactions (96.8%) to complete training. Thus, less than .2% of the roughly 14,000 students were unable to complete training due to psychological problems which arose during training.
The numbers aren't an exact match -- except that 4.3 percent figure -- but close enough. Perhaps the original figures from his July 24 paper would fit even better, but then it's likely OLC was playing fast and loose with the figures. They are certainly close enough to assume with strong presumption that it was Ogrisseg's July 24 memorandum that was being quoted in this part of the memo.

Too bad they didn't look farther into what Ogrisseg then said he told Lt. Col. Baumgartner (emphasis added):
Finally, as indicated in my 24 July 2002 memorandum, Lt Col Baumgartner asked me if I’d never seen the waterboard used, and what I thought of it. I told him that I had seen it used while observing Navy training the previous year, and that I would never recommend using it in training. He asked me why and if I thought it was physically dangerous. I responded that I didn’t see anyone getting physically injured when I observed it, and as stated in my memorandum, the Navy was applying it to medically screened trainees with medical personnel immediately available to monitor and intervene if necessary. However, that wasn’t the point, as psychologically the waterboard produced capitulation and compliance with instructor demands 100% of the time. During debriefings following training, students who had experienced the waterboard expressed extreme avoidance attitudes such as a likelihood to further comply with any demands made of them if brought near the waterboard again. I told Lt Col Baumgartner that waterboarding was completely inconsistent with the stress inoculation paradigm of training that we used, and was more indicative of a practice that produces learned helplessness – a training result we tried strenuously to avoid. The final area I recall Lt Col Baumgartner asking me about were my thoughts on using the waterboard against the enemy. I asked [sic] responded by asking, “wouldn’t that be illegal?” He replied that some people were asking from above about the utility of using this technique against the enemy for the same reasons I wouldn’t use it in training. I replied that I wouldn’t go down that path because, aside from being illegal, it was a completely different arena that we in the Survival School didn’t know anything about. When we concluded the talk, Lt Col Baumgartner asked if I would write him a memo reflecting what we’d just discussed regarding the psychological effects of training so he could include it with other materials he was sending up. He also asked if I would comment on both the physical and psychological effects of the waterboard. I replied that I would, and drafted the memo.
Investigators or prosecutors might want to look at Dr. Ogrisseg's July 24 memorandum, because it appears to be prime evidence for OLC cherry-picking of results regarding the effects of the interrogation techniques in question. Yoo or Bybee or Rizzo, or all three, took the statistics that made their case, and ignored anything else.

We also know Bybee saw the July SERE memorandum from his own testimony before the Senate Armed Services Committee:
Before drafting the opinions, Mr. Yoo, the Deputy Assistant Attorney General for the OLC, had met with Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, to discuss the subjects he intended to address in the opinions. In testimony before the House Judiciary Committee, Mr. Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the memos were being drafted. When asked whether he had discussed SERE techniques with Judge Gonzales, Mr. Addington, Mr. Yoo, Mr. Rizzo or other senior administration lawyers, DoD General Counsel Jim Haynes testified that he “did discuss SERE techniques with other people in the administration.” NSC Legal Advisor John Bellinger said that “some of the legal analyses of proposed interrogation techniques that were prepared by the Department of Justice... did refer to the psychological effects of resistance training.”

(U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released.
The OLC and CIA also ignored a wealth of other published information about the effects of SERE "stress inoculation," such as the June 2000 article, "Assessment of Humans Experiencing Uncontrollable Stress: The SERE Course," in Special Warfare:

As shown in the charts on page 7, SERE stress caused significant changes in students' hormone levels. Recorded changes in cortisol levels were some of the greatest ever documented in humans. In some cases, the changes noted among the trainees were greater than the changes noted in patients undergoing heart surgery....

Changes in testosterone levels were similarly remarkable: In some cases, testosterone dropped from normal levels to castration levels within eight hours.
Or how about this May 2000 article in Biological Psychiatry, Hormone profiles in humans experiencing military survival training?
Conclusions: The stress of military survival training produced dramatic alterations in cortisol, percent free cortisol, testosterone, and thyroid indices. Different types of stressors had varying effects on the neuroendocrine indices. The degree of neuroendocrine changes observed may have significant implications for subsequent responses to stress.
Looking at more psychological than physiological symptoms, one well-known 2001 study in the August 2001 edition of the American Journal of Psychiatry looked at dissociative symptoms, e.g., depersonalization, derealization, psychic or emotional numbing, general cognitive confusion (emphasis added):
The current study was designed to assess the nature and prevalence of dissociative symptoms in healthy humans experiencing acute, uncontrollable stress during U.S. Army survival training. METHOD: In study 1, 94 subjects completed the Clinician-Administered Dissociative States Scale after exposure to the stress of survival training. In study 2, 59 subjects completed the Brief Trauma Questionnaire before acute stress and the dissociative states scale before and after acute stress. A randomly selected group of subjects in study 2 completed a health problems questionnaire after acute stress. RESULTS: In study 1, 96% of subjects reported dissociative symptoms in response to acute stress. Total scores, as well as individual item scores, on the dissociation scale were significantly lower in Special Forces soldiers compared to general infantry troops. In study 2, 42% of subjects reported dissociative symptoms before stress and 96% reported them after acute stress.
96 percent! Well, these statistics are very different from those that appeared to say that less than 2% of SERE subjects had any significant psychological symptoms. It's all in how you frame it in the research world, and apparently in the legal world as well.

In summary, even an initial cursory look at the August 1, 2002 Bybee memo on the "Interrogation of Al Qaeda Operative" shows that the memos were written in bad faith, were meant to deceive, and utilized a memorandum by Jerald Ogrisseg that explicitly warned against using at least some of the techniques (waterboarding) that were approved by OLC.

I'm confident that other researchers will find much more wrong with the recently released OLC memos. Their extremely poor quality and their misrepresentations of medical and psychological information make them very hard to imagine using as the basis of "good faith" representations for those CIA interrogators for whom Attorney General Holder granted immunity, i.e., those "who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice..."

I suppose a lot rides now on how you define "authoritative legal advice."

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Tuesday, April 14, 2009

Submitting Evidence to the Spanish Court on U.S. Torture Plans

Posted by Valtin at 6:28 PM |

Scott Horton has reported that "Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo." The others targeted are John Yoo, Jay Bybee, David Addington, Doug Feith and William Haynes.

I wrote a series on the issue of grounds for prosecution not too long ago. Now I'd like to help the Spanish prosecutors by supplying some basic evidence, courtesy of the Senate Armed Services Committee Report on "the Treatment of Detainees in U.S. Custody", released late last year.

The rationale for the prosecution is established international law, the same sort of law that led to Spain charging August Pinochet for war crimes, led by the same Spanish judge that referred the Bush crew for possible prosecution, Baltasar Garzon.

Setting the Stage

As one reads the following, please keep in mind that there are many current controversies concerning memos written by Bush's Office of Legal Counsel that were meant to legitimize "aggressive" interrogation techniques and treatment of "war on terror" prisoners. Tomorrow, in fact, is the deadline set by a U.S. court for the release of some of these memos still kept secret, including one dated August 1, 2002 by Jay Bybee (or ghost-written by John Yoo and/or David Addington) giving legal approval to a host of "enhanced interrogation" techniques, including reportedly waterboarding.

The evidence I supply here predates that portion of the timeline. Whether or not Obama releases these memos, there is plenty of evidence to proceed with prosecutions. Jason Leopold reported at The Public Record last Saturday that the Department of Justice told the judge in the ACLU suit to "release documents related to 92 interrogation videotapes that were destroyed by the CIA in 2005" that they would only give information on videotapes going back to August 2002. But, as Leopold explains, the FBI Inspector General already documented FBI agent reports of "near torture" interrogations of prisoner Abu Zubaydah as far back as May 2002.

And now, of course, we also have the release of a previously secret report by the International Committee of the Red Cross documenting torture by the CIA.

But all that in good time, for now I want to discuss Department of Defense and Defense Intelligence Agency collaboration with the Joint Personnel Recovery Agency in plotting "exploitation" practices to be used by U.S. interrogators that would draw upon the torture training model of JPRA's SERE program. SERE is administratively part of Joint Personnel Recovery Agency (JPRA) for the Department of Defense.

The timeline for this begins as early as December 2001, before, as the SASC report makes clear, Bush's presidential order, based on an opinion by Alberto Gonzales made as early as January 9, 2002, which "closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees." The pre-January 2002 timeline is crucial, as it stands outside, i.e., is prior to, all governmental attempts to cover their intent to torture, and to break international laws and treaties to which the government was signatory.

I humbly suggest that those with means forward what follows to the Spanish prosecutors, once the final announcement of warrants issued is made. The fact that we are still waiting, and the day has passed in Spain, and no warrants have been issued, speaks to the probable amount of strong political pressure from the U.S. exerted on Spain at this time. (For more details on how the struggle for prosecutions is playing out in the United States, including the role of Democratic Senators Feinstein and Rockefeller insisted that CIA torture suspects like Stephen Kappes, #2 at CIA now, were kept on in the Obama-Panetta reign, the better to stifle possible prosecutions of CIA officials -- such shutdown of prosecutions got a push from CIA Director, former Clinton staffer Leon Panetta last week -- see Glenn Greenwald's recent article.)

In what follows, I concentrate on a period at the very beginning of the Bush torture program's existence, as it came into being.

The Evidence

I have added in bold emphases where I felt appropriate, to guide the reader to the essential points. But I strongly recommend that those interested read not only the full quote herein, but the entire report.
(U) On February 7, 2002, President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections afforded by the Third Geneva Convention. The President’s order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees. While the President’s order stated that, as “a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions,” the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in U.S. custody.

(U) In December 2001, more than a month before the President signed his memorandum, the Department of Defense (DoD) General Counsel’s Office had already solicited information on detainee “exploitation” from the Joint Personnel Recovery Agency (JPRA), an agency whose expertise was in training American personnel to withstand interrogation techniques considered illegal under the Geneva Conventions.

(U) JPRA is the DoD agency that oversees military Survival Evasion Resistance and Escape (SERE) training. During the resistance phase of SERE training, U.S. military personnel are exposed to physical and psychological pressures (SERE techniques) designed to simulate conditions to which they might be subject if taken prisoner by enemies that did not abide by the Geneva Conventions. As one JPRA instructor explained, SERE training is “based on illegal exploitation (under the rules listed in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War) of prisoners over the last 50 years.” The techniques used in SERE school, based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy’s SERE school, it included waterboarding.

(U) Typically, those who play the part of interrogators in SERE school neither are trained interrogators nor are they qualified to be. These role players are not trained to obtain reliable intelligence information from detainees. Their job is to train our personnel to resist providing reliable information to our enemies. As the Deputy Commander for the Joint Forces Command (JFCOM), JPRA’s higher headquarters, put it: “the expertise of JPRA lies in training personnel how to respond and resist interrogations – not in how to conduct interrogations.” Given JPRA’s role and expertise, the request from the DoD General Counsel’s office was unusual. In fact, the Committee is not aware of any similar request prior to December 2001. But while it may have been the first, that was not the last time that a senior government official contacted JPRA for advice on using SERE methods offensively. In fact, the call from the DoD General Counsel’s office marked just the beginning of JPRA’s support of U.S. government interrogation efforts.
The Exhibits

The one document produced from the December 2001 contact -- a fax cover sheet from the Pentagon's Joint Personnel Recovery Agency (JPRA), sent from "Lt. Col. Dan Baumgartner" to "Mr. Richard Shiffrin," who worked for Haynes's in Rumsfeld's DoD General Council office -- introduces a theme of aggressive courting by JPRA/SERE personnel to take on the interrogations/exploitation task. We only have the fax cover sheet at present. I have been informed that the full document is not available as it concerns a different governmental entity, one that did not sign off on declassification, as yet. Perhaps when the full unredacted SASC report is released, supposedly very soon now, we will be able to add another exhibit.
Mr. Shiffrin --
Here's our spin on exploitation. If you need experts to facilitate this process, we stand ready to assist. There are not many in DoD outside of JPRA that have the level of expertise we do in exploitation and how to resist it.
"Mr. Shiffrin refers to Mr. Richard Shiffrin, who worked for William Haynes's in Donald Rumsfeld's DoD General Council office. Mr. Haynes is reportedly one of the officials the Spanish prosecutors intend to indict. Lt. Col. Dan Baumgartner was then head of JPRA.

In June 2008, Dan Baumgartner also gave testimony under oath to the Senate committee regarding the Dec. 2001 approach by DoD. From his testimony:
My recollection of my first communication with OGC 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.
The theme of JPRA promoting SERE expertise surfaces in Iraq a little less than two years after the first DoD approach. A September 9, 2003 email from Col. Randy Moulton, Commander of JPRA to Col. Mike Okita and a redacted addressee (could this be Maj. Gen. Geoffrey Miller, who, coming from his command in Guantanamo, on September 9 was just concluding his evaluation of interrogation procedures in Iraq) again makes the same point about JPRA "expertise".
There is a strong synergy between the fundamentals of both missions (resistance training and interrogation). Both rely heavily on environmental conditions, captivity psychology, and situation dominance and control. While I think this probably lies within DHS responsibility lines, recent history (to include discussions with DHS, USSOCOM, CIA) shows that no DoD entity has a firm grasp on any comprehensive approach to strategic debriefing/interrogation. Our subject matter experts (and certain Service SERE psychologist) have the most knowledge and depth within DoD on the captivity environment and exploitation.
I would remind my readers here that SERE exploitation famously includes the use of physical assault, stress positions, forced nudity, sleep deprivation, sensory overload, and other forms of physical and psychological torture.

Other Evidence: Re John Walker Lindh

Finally, I would like to suggest that there is at least one other piece of evidence related to this early use of torture and/or planning for torture. This concerns the report by Jesselyn Radack, a Justice Department attorney in 2001, tasked as a legal ethics advisor in DoJ's Professional Responsibility Advisory Office, with advising on the procedures surrounding the interrogation of the captured American John Walker Lindh in Afghanistan.

Radack wrote in 2007:
According to a secret document I obtained in June 2004, an Army intelligence officer "advised that before interviewing Lindh, instructions came from higher headquarters for him to coordinate with JSOTF [the Joint Special Operations Task Force] JAG officer. He was told . . . he could collect on anything criminal that was volunteered."

But Higher Headquarters told the intelligence office more than that. Rumsfeld's office told him not to handle Lindh with kid gloves. In a stunning revelation, the documents states: "The Admiral told him that the Secretary of Defense's counsel had authorized him to 'take the gloves off' and ask whatever he wanted." These instructions to get tough wth Lindh, contained in the document I have, are the earliest known evidence that the Bush Administration was willing to push the envelope on how far it could go to extract information from suspected terrorists.
Unfortunately, Ms. Radack does not supply the date for this document, or to whom it was addressed by the Army Intelligence officer in question. I'm sure that the Spanish court could obtain this document in full, if it so desired.

Concluding Remarks

Truly the evidence is massive for government malfeasance and crimes against humanity in the planning and use of torture and other cruel, inhumane, and degrading procedures against detainees held by both the Department of Defense and the CIA in the past eight years. Moreover, as documented by both myself and the Center for Constitutional Rights, a program that maintains illegal interrogation methods persists within current U.S. procedures, primarily, though not limited to, the use of techniques like isolation, partial sensory deprivation, and sleep deprivation, in Appendix M of the current Army Field Manual.

I congratulate the Spanish prosecutors in advance for taking on this crucial litigation, if in fact the warrants are finally issued. The U.S. is also bound by both domestic and international law to take up prosecutions, and it is a serious dereliction of law and duty of the highest order that this has not already occurred.

I hope either Spanish, or other, including U.S. prosecutors, take up the evidence I have presented here as telling documentation of U.S. official plans to subvert the Geneva Conventions and the UN Convention Against Torture, if not the U.S. War Crimes Act, and to have done so prior to the issuance of any executive office legal opinions that would have made it supposedly legitimate (an assertion to any legitimacy I also believe to be without merit).

U.S. readers of this should flood the DoJ offices with demands to initiate prosecutions forthwith. The rule of law is at stake. If the highest officials in the land can break the most serious laws with impunity, then there is no rule of law. There is only tyranny.

Also posted at Invictus

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